| Mo. | May 15, 1835
.The opinion of the court was delivered by
Sweaney sued Burton in the circuit court and had judgment there; and to reverse that judgment, Burton prosecutes his writ of Error;.
Sweaney in his declaration charges that Burton took and carried away certain horses of him Sweaney. Burton pleads, that, as tej the seizing, taking and carrying away of the horses in the said declaration mentioned, he Sweaney ought not to have and maintain his action, &c. because he says, that before that time one Simon Burton had recovered judgment against hint said Sweaney before a Justice of the Peace, and that; by virtue of an execution issued on that judgment, he look and sold the horses, in the declaration mentioned, according to law:
The execution, which was set out in the plea; recites; that whereas, judgment was obtained against Joseph Sweaney, (who is the defendant in error;) and whereas Harrison Sweaney had acknowledged himself bound with said Joseph Sweaney in the full amount of saidjudgment
The plaintiff demurred to the plea and the demurrer was sustained by the court.
It is insisted that the plea is bad, for these reasons. _ .
1st. That the plea, being one of justification, did not admit the right of property in the plaintiff.
2nd-. That the execution as set out did not pursue the judgment.
3rd. That the plea did not show how the defendant had sold and disposed of the property taken in execution.
4th. That the plea commences asan answer to part of the declaration, and concludes as a bar to the whole.
1st. Every plea of justification, states circumstances which either excuse the fact complained of, or shew it to be lawful.
It must therefore admit or confess such fact, otherwise it is not a justification, but a denial of the fact and amounts to the general issue, 1 Chitty pleadings 511. Here the fact complained of is, that the horses of the plaintiff were taken out of his close. The plea answers that the horses in the declaration mentioned were taken by him as constable by virtue of an execution against the plaintiff.
The defendant was commanded by the writ to take the property of the plaintifij and the plaintiff' in his declaration, charges that the defendant took his horses: it is not conceived that the defendant could in more express tei'ms have admitted the right of the plaintiff to the horses, than he has done by saving, as he did, that he took the horses in the declaration mentioned. The fact of taking is fully admitted, and it would have been amere waste of words to have made another express admission of the plaintiff’s right of property. The case of Terril v. Thompson cited by the plaintiff’s counsel, 3 Bibb 275, is not in point. In that case, the defendant Thompson pleaded that the corn in the declaration mentioned was taken as the property of one McCaliister, by a constable under an execution, &e. and that he Thompson at the sale under the execution by the constable became the purchaser, which is the same trespass m the declaration mentioned, &c.
Now it may be asked, what justification it .could have been that the constable took Terrill’s corn to satisfy an execution against McCaliister and sold it to Thompson.
2. It was not at all material that the defendant should have set out the justice’s judgment. As constable he was bound to obey the writ, and had no right to compare it with the judgment on the justice’s docket, the Justice being obliged by law to keep a docket as a record, could not permit every one, whom idle curiosity might prompt to inspect and handle it. It is not like the case of a tiff in an action of ejectment, who being obliged to set out a title in sets out which he cannot
3. It was not necessary for the defendant to state that he sold the property: if it had been true, as it ’was tended, that the defendant by his conduct subsequent to the taking might have made himself liable, the might have replied that matter. When an officer acting under oath, does an official act, the law will presume it done lawfully, until the contrary be shown. The officer liere was charged with committing a trespass in taking the piaintiff’s property and has denied the charge. It would indeed be a hard case if after having denied the unlawful taking, he were compelled to retrace the steps he had taken when he sold the property, merely to collect evidence of acts which the plaintiff had not dared to complain of as unlawful. It is but a reasonable presumption that such officers have done their duty, when no one has complained that they have not done it.
4. It is true that if a plea profess to answer only a part, but afterwaids answer more, it is not good, see 1 Chitty pi. 509. But that writer in such case, suggests that the plaintiff should not demur, but take his judgment for the part not mentioned in the beginning. But the declaration charges that he took, &c., three horses and the plea admits the taking and justifies it.
The other matters charged in the declaration, to wit, that the plaintiff detained, converted, &c., the horses, is mere matter of aggravation, and what it is not imagined any lawyer would think in this form of action, of den'y-ing by plea.
It is the opinion of the court that the circuit court red in sustaining the demurrer to the said plea of the fendant, and its judgment is therefore reversed.