
    Azariah Fuller versus Samuel Holden.
    n an action against a sheriff for not seizing upon execution chattels which he had attached on the original writ, it is a good defence that such chattels were the property of strangers, and not of the debtor.
    The plaintiff declares in case, and alleges that he, on the 12th day of May, 1803, sued a writ of attachment against one Benjamin Porter, of Orange, in the county of Hampshire, returnable to the Court of Common Pleas in this county, to be holden in the following June, and directed to the sheriff of the county of Hampshire, or his deputy, or the constable of Orange; that, on the 14th of May, he delivered said writ to the defendant, then a constable of Orange,- to serve and return the same according to law; that the defendant, by virtue of said writ, attached two cows of the value of 25 dollars each, shown to him by the plaintiff as the property of the said Porter, and made return thereof accordingly; that afterwards the plaintiff recovered judgment against the said Por
      
      ter in the said action; that he afterwards, and within thirty days ' after the judgment, sued out a writ of execution thereon, and delivered it to the defendant to be duly executed, and requested him to execute and return it, according to the precept thereof; that, although the defendant might have found within his pre- [ * 499 ] cinct * the cows which he had attached upon the original writ, yet he neglected to levy the said execution thereon, but took the body of Porter, and committed him to prison upon said execution, stating, in his return, that the said cows had been rescued out of his possession, one of them by Hepzibah Johnson, and the other by Ebenezer Eddy; and that Porter afterwards took the benefit of the act, entitled “ An act for the relief of poor prisoners who are committed by execution for debt; ” whereby the plaintiff has lost the benefit of his said attachment, and the whole amount of the debt and costs recovered upon the judgment aforesaid.
    Upon the general issue pleaded, the action was tried before Sedgwick, J., in this county, April term, 1807, and a verdict found for the plaintiff.
    At the trial, the defendant, to prove the issue on his part, offered to give evidence that the two cows mentioned in the declaration, were, at the time of the attachment, delivery of the execution, and return thereof, the property of the said Johnson and Eddy, and not the property of Porter. The judge refused to admit the evidence, and upon the defendant’s offering it again in mitigation of damages, it was again overruled.
    The defendant excepted to these decisions of the judge, and moved for a new trial on that ground. The defendant also filed a motion in arrest of judgment, because the plaintiff has not alleged that the defendant’s return on the execution was false, fraudulent, or improper, nor that the cows mentioned were at any time the property of Porter.
    
    The motion for a new trial was spoken to at the last September term in this county, by Upharn for the defendant, and by F. Blake. and A. Bigelow for the plaintiff.
    
      Upham
    
    contended that whatever evidence went to show that the plaintiff had sustained no damage, would destroy the plaintiff’s action, and ought, therefore, to be received under the general issue of not guilty. Thus, in an action for beating the plaintiff’s servant, per quad servitium amisit, the defendant may give in evidence, upon not guilty pleaded, that the plaintiff did not lose his ser- [ * 500 ] vice; for that is the injury * charged, and denied by the plea of not guilty.  So, in the present case, if the property which the plaintiff had caused to be attached, upon hie original writ, did not in fact belong to his debtor, he could have derived no benefit to himself from levying his execution upon it, and he has consequently sustained no injury.
    But if it should be ruled that this evidence was incompetent to maintain the issue for the defendant, still it is contended that it was proper and pertinent evidence in mitigation of damages. In cases of rescue, the defendant may give in evidence, in mitigation of damages, the ability of the person rescued, and that he is still amenable to justice.  So here the plaintiif has all the remedy against the estate of his debtor which he ever had; and it would be unreasonable that the defendant should be held to answer in damages for the amount of the debt, if he could not take those cows in execution without becoming a trespasser.
    
      For the plaintiff, it was argued that this matter ought to have been pleaded specially, or at least a brief statement filed of the defence intended to be set up, under the statute of 1792, c. 41. The declaration charged the defendant with neglect of his official duty. When the plaintiff had proved this, he had done all that could be expected from him in a trial upon the general issue. He could not be apprized of this special defence, nor prepared to rebuke it.
    Under the general issue of non cepit, in replevin, property cannot be given in evidence, because it ought to be pleaded. 
    
    The injury complained of in this action is special in its nature. The defendant returned that he had attached certain goods. The plaintiff, induced by this apparent security, was led to prosecute his action; and when he obtains his execution, the officer, who, he presumed, had them in custody, instead of levying it upon these goods, returns that they have been rescued out of his hands, and in one instance by a woman, although he had the whole physical power of the county at command.
    
      
      
        Esp. Dig. 653.—1 Wils. 45.- Bull. N. P. 78.
    
    
      
      
        Esp Dig. 659. —6 Mod. 271
    
    
      
      
        Bull. N. P. 54.
    
   * The cause stood continued for advisement, and now, [* 501 ] at this term, the opinion of the Court was delivered by

Parsons, C. J.

The plaintiff, in an action of the case, demands damages of the defendant, for the neglect of his duty, as a constable of the town of Orange. The substance of the plaintiff’s demand is, that having sued out an original writ of attachment against Benjamin Porter, his debtor, the defendant, as a constable of Orange, by virtue thereof, attached two cows, shown to him, by the plaintiff, as Porter’s property; that having recovered judgment, against Porter within thirty days, he delivered his execution to the defendant to execute; who, regardless of his duty as a constable, and intending to wrong the plaintiff, and deprive him of the benefit of his attachment, neglected to levy the execution on the said cows, or on any other property of Porter’s, but levied it on his body, and returned that the two cows had been rescued from him, and that for want of property he had arrested Porter’s body, and had committed him in execution. And the plaintiff further complains that Porter was discharged upon taking the insolvent debtor’s oath. ■ By reason whereof, the plaintiff has lost the benefit of his attachment, and his debt and costs.

The defendant pleaded the general issue, and offered in his defence evidence to prove that the cows,- when attached, were not, and never were afterwards, the property of Porter, but. of one Johnson and one Eddy. This evidence the judge rejected. The defendant then offered the same evidence in mitigation of damages, and the judge again rejected it; for which cause the defendant has filed his exceptions, and moved for a new trial.

• It appears to us that the wrong complained of is the defendant’s neglect to seize the cows on the execution, to the plaintiff’s injury; and we are satisfied that, under the general issue, the defendant may prove that he was guilty of no neglect, and that the plaintiff has sustained no injury by bis nonfeasance.. And proof that the cows were not the property of Porter when attached, nor ever after, would be good evidence that the defendant is in no default, but would have been a trespasser, had he seized the cows. Under this impression, we think the evidence offered was improperly rejected.

[ * 502 ] * If it had been urged for the plaintiff that he has not alleged the property of the cows to be in Porter, and therefore the property of them was not in issue, it might have been answered that the plaintiff has suffered no damage whatever by the defendant’s conduct, if the cows were not the property of Porter, and that the evidence could not injure him. And it may be added that, after a verdict for the plaintiff, the insufficiency of the declaration may be considered as cured by it; for it appears that the plaintiff’s title to damages is not in itself defective, but only defectively stated, and that the jury would not have given a verdict for him, unless it had been proved that the property of the cows was in Porter.

Upon the whole, we are of opinion that the verdict ought to be set aside, and a new trial granted.

The Chief Justice then observed that, at a conference of the judges, his brother Sedgwick had expressed his full concurrence in the opinion that the evidence had been improperly rejected.  