
    Davis v. Cooper.
    Appeal from the Circuit Court of Warren -county.
    It.'In an action of -trespass'against an offider it is not necessary 'to do-.claro against him in his official capacity.
    3. Declaration .in trespass — p.loa, that' the’ acts "charged were done ' under the authority of an execution delivered to defendant as deputy sheriff &c. Replication, that plaintiff had paid the full amount of the execution, and that- defendant acknowledged full satisfaction ' of the execution by giving his receipts tlrerefoí, fyc. Heidi that' the-replication was bad in not ávefing that plaintiff liad paid and satisfied the execution &c. and in .not stating how much money bs ' . -had paid,.and fürftíef, in not averring that, the trespass Was oom-mi'tted after tho payment of the money due on tho. execution.
    '.3. But'the defendant having withdrawn his demurrer to the replication and the issue joined having been "found against him, the defect, in the'replieation is cured, by the verdict. ■
    .4. Evidence which has a tendency to disprove the facts which the other party is endeavoring to establish is -admissible; particulary if such'evidence can bo drawn frpm the witness'of the other party.
    
      ".'5. 'An execution' and venditioni exponas, are a sufficient justification.o’f a sheriff'in an action of- trespiss against him for levying upbn and selling plaintiffs property, but' if the sheriff wishes to offer the ‘ .' whole record in evidence there is no good rpaso'n why the court -. should refuse to permit liim to do so.
    
      
      Wells and Campbell for Appellant, j
    
    1st. The court erred in refusing to permit the defendant to introduce the record of the case of John Davis vs. Spencer Cooper, as • evidence to the jury. • . '
    2nd.' The circuit court ’erred in refusing, to permit the defendant- to introduce, as evidence, the execution and writ of venditioni exponas in said cause and the return thereon.
    ■ 3rd. The circuit court erred in refusing to permit the defendant to introduce evidence to-prove his-general goód conduct and character as deputy sheriff.
    4th. The circuit court erred in refusing to permit the defendant to propound to Alexander Cooper two questions proposed and overruled by the court, as-saved in the bill of exceptions. .
    5th. The circuit court erred in refusing to grant a new trial in the cause, for-the' reasons ■ assigned 'in defendant’s motion. ' . ’ , ■
    6th. The .circuit court erred in-refusing to sustain the motion- of defendant in arrest of judgment.
    7th. The-circuit court erred, in rendering judgment -for plaintiff See Tucker’s Commentaries, vol. 2, p. 371.. 1st Cranch 136, do do vol. 292, b.ook 3. 1 Robinson’s practice ’ 342. See second Starkie, pages 365, 368, 369, note 3rd, ’S tar kip 1744-6-7. ■ 1 Starkie Ev.. p: 132. See'American digest -p. 374) and 346. 1 Mass. T. R. 530. 3 Cranch 3Ó7, Hall’s digest page 500, Hardin’s Rep. page 362, 19th John's-. Rep. 39. Rob. prac. 342.: '
    
      Jameson and Dryden for Appellee.'
    
    
      1st. The plaintiff did not sue defendant as an officer, and that, as an officer he. justified his acts as charged.
    2nd. He could not make evidence for himself. 7th John- . son’s Rep’s 426. 15th do. 443.
    3rd. The only issue in this cause was the issue-, on the special replication
    4th. The defendant cannot, in action of trespass, 'or in any other action, unless his character is put directly in issue, go into proof of his general good character. 2ndStar-kie, title character, page 2, 214-15-16 and 17,.and the. notes . there referred to. ■ .
    
      5th. The court below did not err, in not requiring Alex-Cooper to answer the two'questions mentioned in the assignment of error.
   Opinion of the court delivered by

Tompkins Judge.

Cooper brought an action of trespass, in the circuit court of Warren county, against Davis and there obtained a judgment against him, to reverse which Davis prosecutes this appeal. Davis pleaded, first, the general issue, to which the plaintiff replied. 2nd. Davis pleaded that the several acts charged in the declaration to be trespasses were done by him, under the authority of an execution then delivered to him, as deputy sheriff of said county of Warren.— Cooper rejoined, averring that he liad paid the full amount of said execution, and that- the defendant acknowledged full satisfaction of said execution by giving his receipt therefor, &c. To this rejoinder the defendant demurred and his demurrer being overruled, he withdrew it, and an issue of fact being made up, they proceed to trial. The defendant moved in arrest of judgment and his motion was over ruled. A witness, sister of Cooper the plaintiff in the circuit court, appellee here, states, that on the eleventh day of July in the jear 1838, a few days before the commission of the trespass charged in the declaration, that Davis, the appellant, came to the house of the appellee, her brother;, he did not come into the house, but spoke to the appellee outside of the house; the appellant had then the execution; the appel-lee came into the house for his money and went out and he and the appellant were talking together in a passage, at the end of the house: that the witness lay on the bed and looked out of a crack near where they were talking; that the defendant was sitting down, close to the end of the house that the appellee, and plaintiff below, was standing up dose to him, that she heard the appellee say “now wo are even” and the appellant said “well” and then he went away; she did not see any money paid or received, but she heard money rattling and saw their arms passing backwards and forwards, and she thought that when the appellant went away he was satisfied, as she heard no disturbance or noise; that xome time after, on the same day the appellant came back, with three men; that the appellee met them at the fence, a Short distance from the house, where they had some angry talk; which she did not hear. On cross examination, she stated that she looked through the crack because she wanted to see what they were doing, 'that both the appellee and appellant appeared to be in good humour when they were' talking in the passage, ’that she did not know how much money the plaintiff took out; she had seen it in the chest, but did not count it, that the plaintiff (appellee) and his cousin had counted it some time before, soon after the execution had issued, and that they said there were sixty dollars; that after the appellant went away, the appellee, came ia with the receipt and read it to her, it was a receipt in full, that the appellee did not say any thing to her about the receipt, and that he did not have, any conversation with her on the subject; that she did not inform her brother that she had been looking through the crack, and that there has not been any conversation between them on the subject betwixt that time, and the time when the appellant came back with the three men; that the appellant and appellee were talking together, the first time the appellant came, about an hour" and a half; that she was three times at the crack, and might have spent about half an hour there, that they conversed about many things of which she recollected nothing except what was above related. The taking and sale of the prop- • erty in the declaration mentioned was proved, and the receipt being lost, evidence was given of it, by producing a copy and proving the hand writing of the appellant, it was for forty-one dollars and 9S cents in money, and thirteen dollars and 49 cents in receipts of certain persons, to whom probably costs had been paid by appellee. The appellee then introduced Alexander Cooper, his brother, to prove, that he the appellee was a farmer and had then a crop, and had but one other horse, and that unhealthy, with other circumstances in aggravation of damages; this witness purchased the property. On cross examination, the witness. v;as asked whether the appellee had not furnished him the money to buy this property, and whether the appellee had not requested him to purchase it.' These questions the cir-eourt decided should not be answered. The appellant then offered in evidence the record of the judgment- on which the'execution-was issued, and under which he acted, but on motion of the appellee it was rejected. He then offered in evidence the.execution and venditioni exponas issued in the cause; they were also rejected. • On this execution was- a special return, that the appellee had paid .tett dollars in money and thirteen dollars and '491- cents in re” ceipts, the same as those- mentioned before 'in the receipt given in evidence by the appellee, and that having written a receipt for the whole sum due on the execution, the appel-lee got possession of it to see if it was sufficient; and retained ít paying only the sum of ten dollars and -the receipts as above mentioned. A witness introduced on the part of the appellant, stated that in July 1838, he and two others went with the appellant to the house of the appellee; that a't the foot of the field they saw’a son of the appellee,-who, when he saw them, ran for'the house, an,d was there, when they' came up; that as they approached the house, they saw the plaintiff come out with his gun, and that'he met them at the fence a short distance from the house; that the appellant told the appellee he hádcome to'try to settle that dispute between them; that the appellee got angry, and the appellant told him he wanted the balance of the money due on the execution the appellee s aid he had paid him all- he owed him, and had his'fe'ceipt for it; that the appellant said he had h'is receipt but lie had only shown it to him and he had kept it, and had paid him only ten dollars; the appellee' replied that he had paid him all he owed him; that the' appellant then asked him, how much he had paid; but that he did not say, and repeated that he had paid him all he owed him, and said he was going to hunt squirrels; the two other persons testified to the same’pu'rpose, with this addition that one of them said was on the 1 Ith day of July 1838, the day on which the plaintiffs witness had. stated it to be. The second of these three witnessess, who were present at the'interview betwixt Davis and' Cooper, stated that Davis repeatedly ask'ed Coop-to state how much he had' paid, but that Cooper did not state how much he had paid, but said he had paid all he owed, and the receipt would show; that the. appellee the appellant, off, cursing him; that the appellant' asked him to show the receipt which was not done; that Cooper stated he could, prove the,payment of the money, by his sister, who had been .lying on the bed and looking through a crack, and had seen him pay the money* Other angry and idle words were said to have .been spoken b.y the appellee. ■ One' of these witnessess states that he and another went-next day to Cooper’s house, át Davis’ request; and .saw a crack about an inch and a half, wide .apparently newly made. Several witnesses, introduced by the appellant, testified that they had heard Cooper say that the judgment should never da John Davis, the plaintiff in that judgment, any. good; and one stated that he had said, he would pay it to Hay’s, the. sheriff, but not'to James Davis his deputy. Davis offered evidence of his character, which the circuit court refused to. admit. The defendant moved for a new trial, because; fir.st the. verdictwas against law..and evidence.. 2nd; The. courtf. refused to admit the ' defendant to introduce proper and galevidence. It .may be. proper here to .observe that exécep-, tions were taken to the decision of the court in refusing to, admit the evidence.offered by’the defendant. The.reasonh; in arrest of judgment are, .'1st. The'declaration, wm bad.. 2nd. The replication to the plaintiff’s second1 plea was'bad;.

. Inana&t?°® of trespass against an offi-declare' a- ^ 1 Pacity-.

. The appellant contends that thg judgment oiighf to-be arrested. . ......

1st. Because the declaration-should have,been against him- , , as deputy sheriff. In the total abseencq of books, to furnish authority, Í am reduced to the necessity of depending on my own recollections of the .rulqs of pleading. I,can. see ho reason why the plaintiff in an-action should be, constrained to sue any man in his official character. To me it seems most proper for the-defendant to allege this in his plea if. he thinks it will hplp his case, he 'best knows ' whether hp is. an ofijce.r, and whether he acts under the authority -’of a writ. ■

2nd¡.. Becausq the replication, to -the. record.plea was bad;; That replication,, he says, shopld have stated what sum of.' m.onqy he paidfin satisfaction, of the execution. • I.pdoes neff' admit the authority under which -the defendant acted nor charge that the several trespasses were committed without the reason assigned by the defendant. It will here be recollected that the appellant demurred to tins replication, and when the circuit overruled his demurrer, he withdrew it.— Had he abided by his demurrerand caused a judgment to be entered up against himself then in that case, 1 should have had no difficulty in saying that the replication was bad.— Reason seems to require that the appellee should state in such a plea that he had paid and satisfied the execution &c. and I believe he also should have stated how much monev s^10u^ also have stated in his replication that the saidtrespass in the declaration mentioned had been committed after the payment of thg money due on such execution. But the appellant withdrew his demurrer, and an 'issue which was found against him. Many thing", S°°d on demurrer, are cured by verdict. Without the aid authority I am not willing 'to say that the circuit court comruitted any error in refusing to arrest the judgment for this reason. The appellants counsel has cited authority eu°ugh, hutas he has not put them in my reach, it avails me nothing. The next point is the rejection of the testimony . J . 1 J J offered to be introduced by the appellant. The decision of oourl, by which the appellant was refused the right of Cooper whether-the appellee did not furnish him money to buy the property sold on execution and which was the subiect matter of this suit, comes first in order. Coop-J 1 or liad testified fortho appellee that he had a growing crop, kut one other horse and that, unsound, as well as other in. aggravation of damages. It certainly then was quite reasonable to allow the other party to introduce evidence to disprove the facts the other party was striving to establish, and what witness could he less objectionable than the appellee’s own witness and brother. If the appellee had money enough to purchase the horse and cow sold under the execution, then lie would not have -a right to claim such aggravated damages. If he had desired the witness to purchase for him, it would be still stronger evidence that he was not unwilling to have them sold, and might have raised in the minds of the jury a presumption that he did furnish the money. Even if .the witness had denied it, it might 'have been material in another view to the appellant to prove, that the appellee furnished the money to buy this property. His sister had testified, that, some short time after this execution issued, the appellee and his cousin had counted his money which she had seen in a trunk, she did not know the amount, but they said that the sum was sixty dollars. It will be recollected that he depended on the receipt to prove the payment of the money due on the exe cution. Had it been proved that the appellee furnished his brother money to buy this property, this circumstance might have induced a jury to believe that the appellee did not pay the sum of forty-one dollars to the appellant, but that he fraudulently took possession of the receipt for that sum of money, as the appellant contends he did. The questions' put by the appellant, ought in my opinion to have "been answered, for the two reasons above given, and the circuit court, in my opinion, committed error in disallowing them to be answered. ■ The next question that occurs is, as to the record of the judgment &c. ou which the execution issued. In the 27th section of the 3rd article of the act to regulate practice at law page 460 of the digest, an officer, like the appellant, is permitted to plead the general issue and give the special matter in evidence, The execution and the venditioni ex-ponas were enough for him, but if he chose to offer the whole record, I can see no reason why the court should re-jectiteven under the special plea; more especially as the appel-lee did not, in his replication to that plea, admit the official cha r-acter of the appellant. The dates in this record might have been material, as was contended by the appellants counsel. Miss Coopei a witness' of the appellee, stated that soon after the execution was issued, the appellee and his cousin had counted his money and found there were sixty dollars. -By the endorsement on this execution,-.it appears to have come to the hands of the sheriff on the 9th of April proceeding the time of the date of the receipts, and it certainly might have been a fair subject matter of enquiry before the jury, whether a man in the circumstances of the appellee, might pe presumed to be able to raise sixty dollars, to buy the property sold on. execution, after paying the money for which that receipt purported to hare been given. The evidence offered by the appellant to prove'his good character was well rejected; for his character was not in-issue: but in re~ fusing to admit the record tó be read, -the circuit court, in .my opinion, committed error; If the possession of a receipt signed by the appellant be-evidence that the appellee who possessed it has paid money to the appellant, the execution, ■returned not satisfied, is certainly better evidence that the money due thereon has not been paid, for the officer returns the- execution under the obligations of his official oath; and af the risk of an action for a false return, and it will here be recollected that the evidence of the payment of money by him is very slight; his sister saw their arms passing, as she' peeped through a crack, and 'heard money rattle, this is all the evidence -except the possession of the receipt. I con-elude then that the record ought to have been read in evidence. This brings me to the enquiry whether a new trial ought to-have been granted. The evidence of the payment of motley by the appellee is certainly very slight, as above •observed, and indeed it carries along with it a character of evil appearance. The sister of the plaintiff states that her brother came into the house, after Davis went away-and .' read the receipt to her, it was a receipt in full, no eonversa-t'ion passed betwixt them* and that, she did not tell him 'she had been • looking through the crack and saw the ■ money paid: when Davis promptly' returned, on the same day,1 ■ with three of his neighbors, Cooper, apparently informed of their coming, takes his gun and meets them at the fence, a short distance from the house, and angry words pass, which his sister did not understand; three of the other wit-nessfes testify to a degree of bitterness in the language of the, appellee, which could not reasonably be expected from him, had he and Davis parted in good humor, an hour or two before that time, he knows too that his sister had been looking through the crack, and saw him pay the money, although she testified that she had not then told him, but it is said he might have seen her. If he could have seen her, the other might equally have seen her. The whole account of looking through the crack for half an hour, exposed probably to a stranger’s view, to hear a conversation of good humor, and which was yet so uninteresting that the curious witness could recollect nothing but the few words above mentioned, viz: “well now we are”even” and the appellants answer “Well.” appears to me to be too strange to be credible; other witnesses, whose testsmony has been adverted to, state that the appellee had in their hearing declared that he would never pay the judgment, and that the money, should never do theplaintiffin the execution any good. This testimony, considered as a whole, appears to me to have been sufficient to induce a jury to find a verdict for the appellant; and the court ought in my opinion to have granted a new trial $n that account, because then the circuit court, refused leave to the appellant to put the questions above mentioned to the witness, Cooper, and because that court did not permit the appellant, to give in evidence the execution and venditioni exponas, with so much of his return thereon as was properly made, (for I do not recollect that he had any right to return on the execution that the defendant unlawfully got possession of his receipt,) and also the record, on which that execution was issued, and also because that court did not grant a new trial to the appellant, its judgment.ought in my opinion to be reversed. It being the opinion also of the other judges of this court that the judgment ought to be reversed, it is accordingly reversed, and the cause will be remanded to the circuit court.

Declaration in trespass— plea, that the acts charged <$*c were done undor the authority of an ■execution delivered to defendant asde-4-cty Replica’ tion, that pauTthe full amount of and that Imowledged full couthm by giving his re&cPUHeíd°J that the rcpii-cation was bad in not a-phiiutiff paid r ..d ecution j &o. nmi m not stating how much money in not trespass was committod after the paj'ment of the money duo on the execution

But the defendant having withdrawn iiis demurrer to the replication <y the issue jcin-ed having been found against him, the defect in the replication is cured by the ver diet.

Evidence which has a tendency to disprove the facts which the other party is endeavoring to establish is admissible, particularly if such evidence can be drawn from the witness of the other party.

An execution and ven-ditioni expo-nas, arc a sufficient justification of a sheriff in an action of tros pass against him for levying upon and soiling plaintiff’s property but if the sheriff wishes to offer the whole record in evidence there is no good reason why the court, should refuse to permit him to do so.  