Coon vs. Congden, 12 Wend. 496

By the Court, Sutherland. J The questions which arose Up0n the trial were, 1. Whether the notice annexed to the plea was sufficient to entitle the defendant to prove property *n horses out of the defendant, and 2. If it was not, whether the defendant, being a constable, had a right to give the matter in evidence under the general issue without notice. 1 think the notice was sufficient to admit the evidence. It contains an express allegation that the horses were the proper goods and chattels of Williams, the defendant in the execution, and that the constable seized them as such.

Independently of that fact, the notice contains no defence to the action. A judgment and execution against Williams did not authorize the defendant to go upon the farm of Goon and take his property. The plaintiff must have understood the notice as setting up property in Williams, and that that was the question to be met upon the trial. He could not have been misled. But the evidence was admissible without notice. The general provision, that in every action against a public officer for

an act done by virtue of his office, he may plead the general issue and give the special matter in evidence without notice, 2 R. S. 353, § 15, 1 R. L. 155, § 1, is applicable to this case. This section, in its terms, embraces all cases — the action of replevin as well as every other action. It was intended for the case and protection of public officers, and ought not to be abrogated by construction. The 44th

section of the act concerning the action of replevin, 2 R. S. 529, is in no respect incompatible with it. That authorizes any defendant in reple-vin, with the plea of the general issue, to give notice of any matter which, if specially pleaded, would be a bar to the action. It dispenses with the necessity of special pleading, but it does not impose the necessity of giving a special notice, in a case where, by a general statutory provision, it was before unnecessary. The case of Calvin v. LaFarge & Spallsbury, 6 Wendell, 505, is very distinguishable from this.

There the application was on the part of the defendants in replevin, for leave to reply double. The granting or refusing of such leave is a matter resting in all cases in the sound discretion of the court, 2 R. S. 356, § 27; and as the legislature had specially regulated the proceedings in this action, and given the right to plead double, we felt ourselves authorized in giving a strict construction to the act, particularly as it would still rest in the discretion of the court whether it would grant the leave if'the broader construction were adopted.

The provision giving the right to reply double in any case was new also; it was not like the right of a public officer to give any matter of defence in evidence under the general issue, a pre-existing and long established right. This circumstance is entitled to considerable weight in construing this statute. The judgment of Merchant v. Williams, upon which the execution was issued, was, under the circumstances of the case, sufficiently proved. The execution itself was produced and read upon the trial, and was admitted to be regular upon its face and authorized by the judgment.

This being the case, it was a protection to the officer, whether the magistrate had or had not jurisdiction of the case, and whether his proceedings were regular or irregular. Savacool v. Boughton, 5 Wendell, 170, and cases there cited. Wilcox v. Smith, id. 231. M’Guinty v. Herrick, id. 240. 9 Wendell, 17, 35. 7 id. 89. In Cleaveland v.

Rogers, 6 Wendell, 438, the defendant, who was a constable, avowed and justified the taking under an execution issued by a justice of the peace, upon a judgment rendered by him ; and the plea did not set forth the facts necessary to give the justice jurisdiction, nor did it set forth the execution itself; upon demurrer the plea was held bad. The court had no means of judging whether the execution was regular upon its face, and contained enough to afford protection to the officer, within the principle of Savacool v. Boughton. It was a strict question of pleading.

The evidence in this case was therefore properly admitted, and the motion for a new trial must be denied. p .