
    Newberry vs. Lee.
    If the attorney on record illegally issue afi.fa. and thereby render himself liable in trespass, his client is also liable.
    In trespass against the client it is not necessary, for the purpose of connecting him with the levy, to show that he specially directed the issuing of the ft. fa.
    
    One party to afi.fa. cannot justify under it in an action by the other,without showing the judgment as well as the fi. fa.; though tire latter alone is enough for the sheriff
    Where, in such case, the fi. fa. purported to have issued on a decree in chancery made by the court of common pleas of Huron county, Ohio, and one of the plaintiff’s witnesses testified, on cross-examination, that the suit in which the fi. fa. issued was conducted in a court of record—viz. the court of common pleas of Huron county, cj*c.—that the process, bill of complaint, answer, proceedings and decree, were matter of record in said court, fyc.: Held that, the evidence having been received without objection, it was sufficient, when taken in connection with the fi. fa., to prove the decree to have been regularly made and enrolled.
    And though the officer who made the levy testified that ho afterwards discharged it under an order entered of record in the common pleas of Huron county ; Held, not evidence that either the decree or fi. fa. had been set aside for irregularity.
    
    A plaintiff in a judgment and execution who seeks to justify under them must plead the matter specially, and cannot give it in evidence under the general issue. Per Cowen, J.
    But if at the trial the matter be proved under the general issue without objection, the question as to its admissibility cannot be raised on error.
    On error from the recorder’s court in the city of Buffalo. The action below was by Lee against Newberry, for trespass in seizing the plaintiff’s personal property. The plaintiff proved that the seizure was made by the sheriff, in Erie county, Ohio, by virtue of a fieri facias' against Lee and one Tinker, dated November 6th, 1840, purporting to have been issued on a decree against them made by the court of common pleas of Huron county, Ohio, sitting as a court of chancery, of the term of October, 1840. The plaintiff proved the levy by one Kirkham, the officer who made it. This witness produced what he said was a copy of the fi. fa.; and in answer to questions put by the plaintiff’s counsel, said, the common pleas from which the fi. fa. issued was a court of record ; that the regular term began on the 12th, and the court adjourned the 21st of October, 1840. On his cross-examination he said, for aught he knew, the levy was a legal levy in Erie county ; that the process was regular and legal, and levied according to law ; that the levy continued till the 16th of November, when witness was ordered to discharge it, Lee, (but not Newberry,) being present in the clerk’s office at the time; that there was a regular proceeding, and it was entered in the records of the common pleas; that the order under which the property was discharged was a record of the common pleas.
    The plaintiff proved by the deposition of Tower Jackson, that, by letter of attorney of November 10th, 1840, Newberry, the defendant, authorized him (Jackson) to manage the suit, and to direct the attorneys, Messrs. Bolt & Worcester. The letter distinctly recognized Jackson as Newberry’s “general agent in said suit.” Jackson testified that he knew of the existence of the suit, and conversed with Newberry about the time it was commenced, who said he had written to Bolt & Worcester of Huron county to commence it. Newberry told the witness, as his agent, to be governed in the conduct of the suit by the attorneys. On being cross-examined he said, the suit was conducted in a court of record, viz. in the common pleas of Huron county, and the process, bill of complaint, answer, proceedings and decree, were in writing, and were matters of record in said court.
    The plaintiff here resting, the defendant’s counsel moved for a nonsuit: 1. Because no authority or direction of Newberry for the commencement of the suit was proved; 2. Because the evidence showed the taking to have been by virtue of judicial proceedings in a court having jurisdiction $ 3. Because there was no proof that the levy was made at the request of the defendant or his attorney; 4. Because the defendant was not shown in any manner to have interfered with or directed the issuing of thef.fa. ; nor did it appear to have been levied at his instance, or even with his knowledge; 
      5. Because trespass would not lie on the facts proved, against the defendant. The motion was overruled, and the defendant excepted. The court charged that the plaintiff was entitled to recover, if the jury believed the defendant authorized the suit; and that, whether, he had done so or not was a question of fact. The defendant excepted to the charge; and, after verdict and judgment for the plaintiff, the defendant sued out a writ of error.
    
      W. H. Greene, for the plaintiff in error.
    
      E. S. Warren, for the defendant in error.
   By the Court, Cowen, J.

There can be no doubt, on the evidence, that the defendant below was connected with the trespass. He was plaintiff in the suit. This was conducted by his attorneys, Bolt & Worcester, and [his general agent, Jackson. The fi. fa., of course, was issued by or at the instance of his attorneys; and where the attorney on record conducts the suit in such a way as to be liable to an action of trespass himself, his client is also liable. (Barker v. Braham, 3 Wils. 368, 376 ; Bates v. Pilling, 6 Barn, & Cress. 38 ; Brown v. Feeter, 7 Wend. 301 ; Crook v. Wright, Ry. & Mood. N. P. Rep. 278.)

Proving the levy, and connecting the defendant with it as a party, therefore, made out a trespass against him; and the verdict was right unless he established a justification. To do so, though the execution alone would seem to have been holden sufficient on the older cases, (Bealy v. Sampson, 2 Ventr. 90, 93,) yet modern dicta, and modern pleaders, if not actual decisions, have been quite uniform in the distinction made by Holt, Ch. J. in Britton v. Cole, as it is reported in several books ; (1 Ld. Raym. 305, 309 ; 1 Salk. 408 ; Carth. 441, 443 ;) viz. that where a party is put to justify under an execution, though it was against the plaintiff, he must, to make his authority complete, allege and prove the judgment upon which it was based; (9 Wentw. Pl. 22, 53 ; Clay v. Caperton, 1 Monroe, 10, 11 ; De Grey, Ch. J. in Barker v. Braham, 3 Wils. 376 ;) though it is enough for the sheriff that he show the writ. (Bac. Jibr. Ex. (P.) ) The distinction is not very important, except as fixing the onus probandi; but in this, it takes the side of convenience, and, I think, accords with the general sense of the profession. There is no difficulty in saying of the case at bar that the fieri facias was regularly proved. A sworn copy was producedand, although that cannot be said, speaking lawyer-like, of the decree in this case, yet, one way and another enough came out in the course of the trial, by parol proof and the recital in the execution, from which to collect that this execution was well founded. No objection was made to the form of the proof; and indeed the plaintiff himself, in order to connect the defendant with the levy, was obliged to set up and maintain that the suit commenced was carried on to an execution. This was- followed by the defendant’s cross-examination of Jackson, who testified to every thing short of an enrolled decree. It can indeed hardly be su¡rposed, looking at the facts directly established, that a decree was wanting. We have pleadings in a competent court, an actual session at October term, followed by afi. fa. reciting a decree as of that term. No point was made below that a decree had not been duly proved; Jackson says there was one ; and I think we may say there was one regularly enrolled, as matter of presumption from the circumstances.

But the plaintiff below insists that, from the same circumstances and the same sort of proof, we must presume that the decree and execution were set aside for irregularity ; and that the defendant is liable on that ground. I see nothing in the error book to warrant the conclusion. No record, no supersedeas, no rule setting aside the proceedings on that ground, was produced; although the point was made against the plaintiff that the evidence showed a levy by virtue of judicial proceedings. It is true that the property was discharged, and the order (so said Kirkham) by which it was discharged was recorded. On what ground1? Was it by consent, or on the ground of merits, or because the decree was satisfied ? Are we not rather to presume an innocent than a guilty cause ? I think we are ; and that it lay with the plaintiff to show directly, or, at least, by circumstances, that the reason for discharging the levy, as the witness expresses it, lay in some violation of practice. This he failed to do. He left the justification to stand in its full force. That I think was complete. I agree that if the execution was in fact set aside for irregularity, the action was properly brought; but not a case was cited, nor can there be, that on the naked fact of the execution or levy being set aside, no specific cause appearing, we are required to intend the worst.

The objection that the justification was not specially pleaded, is now heard for the first time. It should have been made in the court below. The evidence of justification may have been received by consent. I agree that in strictness the justification should have been pleaded; (Root v. Chandler, 10 Wend. 110, and the cases there cited;) but we must regard the objection as having been waived.

Judgment reversed. 
      
       See Cowen & Hill’s Notes to Phil. Ev. p. 1078, et seq.
      
     