
    Kelly v. Fritz.
    Pleading. Justification. A plea of justification filed by Deputy Sheriff,, under writ of possession in his hands for execution, must state the facts relied upon to justify the acts done under it.
    PROM MORGAN.
    Appeal in error from judgment of Circuit Court of Morgan county, March Term, 1871. E. T. Hall, J.
    Young, for plaintiff in error, said:
    The question in this case is, as to the power of a sheriff to execute a writ of possession upon a party who has had no day in court, and whose name is not known to the writ or any of the proceedings upon which it is predicated, and arises upon the following facts:
    Diana White instituted before magistrates, an action of forcible entry and detainer against Barbary Pettit, and recovered.
    On the 8th of September, 1868, a writ of possession issued and came to the hands of Jacob S. Eritz, the defendant in error. Kelley and wife had no knowledge of the existence of this suit until Fritz came to their house and dispossessed them, and for being thus dispossessed they brought this suit.
    Defendant, in justification, relied upon the suit of Diana White v. Barbary Pettit. To this plea the plaintiff demurred and the court disallowed the demurrer, and plaintiff excepted.
    
      The plaintiffs then filed a replication to said plea ■of justification,. in which they state that neither of them were parties to the warrant, judgment, or writ of possession, in the case of Diana White v. Barbary Pettit.
    Upon motion of defendant, this replication was 'stricken out and judgment by default rendered for want of a replication. To this action plaintiff excepted, and appealed to this court.
    It is insisted for the plaintiff that the Circuit Judge erred, both. in disallowing the demurrer and in striking out the replication: 1st. Because Kelly and wife were in possession at the time the suit of Diana White v. Barbary Pettit was instituted, and were not in any way the privies of said Barbary Pettit. 2d. They were not parties to the warrant, judgment, or writ of possession in said case of Diana White v. Barbary Pettit. See 1 Green!., 522 and 523; Fanney Walden v. Daniel Huff, 3 Sneed, 82; Hiekerson’s Lessee v. Dale, 7 Yer., 149.
    Gkatz, for defendant in error, said:
    The plaintiffs sued the defendant, J. S. Fritz, (a nolle prosequi having been entered as to Wm. Love), in the Circuit Court of Morgan county, in an action of trespass for: 1. Assault and battery; 2. Driving plaintiff’s wife from home; 3. Same as 2d count, with the additional charge of throwing the furniture, etc., of plaintiffs out of the house.
    To this defendant pleads: l. Not guilty; 2. A special plea setting forth that at the time defendant was deputy sheriff of Morgan county, that there came to his hands a writ from proper authority, to place a certain Diana White into possession of certain realty, and that in the lawful execution of this writ, the trespass, if any, was committed.
    To this plea plaintiff filed a demurrer. The court overruled the demurrer and sustained the plea. The plaintiff refusing to reply, judgment by default was taken on said plea, and the cause dismissed.
    We respectfully insist that there is no error in the ruling of the court. The court will readily see that a multiplicity of cases may arise where it is impossible to use the phrase “and the plaintiff in said cause is the identical plaintiff or defendant in. this cause arid none other,” etc., etc.
    In this cause, as the court will readily see, the defendant was deputy sheriff. By a writ of possession issued by competent authority, he is directed to place A B, (not a party to this suit), in possession of a certain house and premises. The plaintiff is a squatter upon the premises which he is directed to give into the possession of A B, and in removing them, he is guilty of no trespass, but may plead justification as he has done.
    But by statute, general demurrers are abolished and special causes required. . The plaintiffs have seen fit to allege but one cause; hence by implication they waive all others, and they are bound to stand by the cause alleged.
    I confidently hope that the judgment of the Circuit Court may not be disturbed, thus closing vexatious and embarrassing suits against public officers.
   McFabland, J.,

This action was brought for assault and battery and for throwing the plaintiff and his wife and property out of their house.

The defendant pleaded not guilty, and a special plea — averring that at the time he was deputy sheriff of the county, and that a writ of possession had come to his hands, issued by two justices, founded upon a final judgment rendered in a cause theretofore pending and determined, wherein Diana White was plaintiff and Barbary Pettit was defendant, and in which writ he was commanded to put Diana White in peaceable possession of certain premises, and that the supposed trespasses were committed by him, if at all, in the. execution of this writ, and not otherwise.

A demurrer to this plea was overruled, and the plaintiffs refusing to file a formal replication, the court gave judgment for the defendant, and the plaintiff has appealed in error.

The demurrer, though inartificial, may be regarded as special enough to raise the question as to the sufficiency of the plea. Tested by the most liberal rules consistent with any reasonable degree of certainty in pleading, this plea is wholly-insufficient.

The declaration avers that the defendant assaulted the plaintiff and his wife and threw them and their property out of their hpuse. The reply, of the defendant to this is, that he was a deputy sheriff, and had a writ commanding him to put Diana White in possession of certain premises, which she had recovered in a suit against Barbary Pettit, and that he committed the trespass in the execution of this writ.

It is not averred that the premises described in the writ, were the premises from which the plaintiffs were thrown — and if it b¿ conceded that the premises are the same, there is no state, of facts alleged, showing that the plaintiffs were subject to be dispossessed under a writ against Barbary Pettit. TSTor is any state of facts alleged from which the court can see that the trespass was justified under the authority of this writ, unless we supply by inference important allegations not found in the plea. The plea should at least contain, with reasonable certainty, a succinct statement of the facts relied upon as a defense to the action.

The judgment must be reversed, the demurrer to the plea sustained, and the cause remanded for further proceeding.  