| N.C. | Dec 5, 1827
Lead Opinion
The defendants offered in evidence a judgment in favor of the defendant Cryer against Bridget Weaver, rendered by a justice of the peace on 7 June, 1823, and a writ of fieri facias thereon, written on the same paper, directed to the defendant Moore, and dated 30 August, 1824, which was returned levied on the cattle in dispute. His Honor rejected the evidence, thinking that an officer could not justify under process which issued on a judgment more than a year and a day (338) old.
The counsel for the defendant requested the judge to instruct the jury that common reputation was not evidence of a marriage between the mulatto and a white woman, as the policy of the country forbade such connections. His Honor declined giving this instruction, but informed the jury that they were at liberty from reputation and cohabitation to infer a marriage. *218
A verdict being returned for the plaintiff, the defendant appealed. The judge erred, I think, in rejecting the evidence of the execution, as regarded the constable, for although issued upon a dormant judgment, yet it is a justification to the officer who acted in obedience to it. Nor does it vary the case that execution is on the same paper with the judgment, from which fact, on a bare inspection, he could discover that the judgment had been granted more than a year and a day before the execution issued; for non constat that there had not been an intermediate execution. Of these things the officer is not presumed to be a judge, his office being merely ministerial, and the issuing an execution, or rather the order to issue it, a judicial act, confided to another. But as to the plaintiff in the judgment, the execution is no protection to him. He acted as a wrongdoer in suing it out, and is liable for the acts of the officer who acted under it, the maxim being qui facit per alium, facitper se. Were this an action where such a defense could not be made under the general issue, but the party bound to plead it specially as a justification, I should feel some difficulty on the subject, for it is most certain upon authority that if two (339) or more join in a plea of justification, if it be bad for one, it is bad for all. I cannot, however, consider the short memorandum made upon the clerk's docket as anything but a mere intimation of the ground of defense, which the adverse party, by not refusing, receives in lieu of a formal plea; but if drawn out at length, which the plaintiff may cause to be done if he wishes, the matter is to be set forth formally. If by law, therefore, the justification may be good for one and not for the other, as it is in this case, the memorandum will be understood as a memorandum of a several plea. We are relieved, however, from decisively determining this question, as in this action the justification may be given in evidence under the general issue, which is, in its nature, a several defense, or rather, in joint actions, a several denial of the acts imputed to the defendants.
As we cannot grant a new trial to the officer without granting it to the other defendant — that is, if it be granted as to one, it must be granted as to both — let the judgment be reversed, and a new trial granted generally. *219
Addendum
It may be collected from the record that this appeal was brought up to ascertain whether the opinion delivered by the judge was correct. The opinion affirms two propositions: the one is that a constable cannot justify under process when the judgment on which the execution issued is dormant. The other is that a marriage between a mulatto and a white woman may be proved by common reputation. This appears to be the controversy from the case made by the judge, though the record itself places the sale in 1820, three years before the judgment, and more than five before the execution. I conclude, therefore, that this statement is a manifest mistake.
This being an action of trover, there was no necessity (340) to plead the justification, for the facts relied upon to constitute it might have been given in evidence under the general issue. Nor, indeed, is it regular, in this action, to plead a justification, unless it admit the property to be in the plaintiff, and the conversion, but justifies the latter. Comyn's Digest, Pleader, E. 14.
It is therefore most fair to deduce the law from the facts of this case, rather than to decide on a question of pleading; for there the rule is that if two defendants join in a plea which is good as to one, but not as to the other, the plea is bad as to both, for when they put themselves on the same terms, the court cannot sever the plea and say that one is guilty and the other is not. Thus, if an officer plead separately under a writ of fi. fa. or other process, he need not state the judgment; but if he join in the plea with the plaintiff in the former action, and the judgment is not stated, the plea will be bad as to both defendants, unless the plaintiff in the former suit justify in aid of the officer. Barker v. Braham, 3 Wils., 376.
With regard to the first question, I take the law to be settled that an officer is bound to execute all precepts that are directed to him from a competent jurisdiction; and inasmuch as he may justify under an erroneous process, he is not at liberty to disobey it. The distinction is between void and voidable process — the latter, in all cases, affording protection to the officer. Thus, if a ca. sa. is taken out after a year, and the defendant thereupon arrested, and afterwards suffered to escape, debt lies against the officer, though the process was erroneously awarded, for it was sufficient to arrest him, and the sheriff may justify in an action of false imprisonment, and therefore cannot let him at large.Bushe's case, Cro. E., 188; Sherly v. Wright, Ld. Ray., 775. But with respect to the plaintiff in the judgment, as he sued out the execution irregularly, he cannot derive a title *220 (341) under the sale, so effected, though the exception could not be taken to it if a stranger had become the purchaser.
On the question of evidence I apprehend that the law was correctly stated; that general reputation and cohabitation are evidence of a marriage. It is so in all cases except in actions of crim. con.
There ought to be a new trial.
PER CURIAM. Judgment reversed.
Approved: Dawson v. Shepard,