
    *43] *Robert Carson and others, vs. John Wilson.
    IN ERROR.
    In an action of trespass for breaking and entering the house of the plaintiff, the defendant cannot, under the plea of not guilty, give in evidence matter of justification or excuse, such as that the breaking and entry complained, of were by virtue of an execution issued out of the court for trial of small causes, against a third person ; but such matter must be pleaded specially.
    
      Wood, for plaintiffs in error.
    
      Scott, for defendant.
   The opinion of the court was delivered by the Chief' Justice.

The declaration in this case is in trespass for breaking and entering the house of the plaintiff and taking and carrying away his goods and chattels. The plea is not guilty. On the trial the defendants offered evidence to justify the breaking and entry and the taking of the property, under an execution from a court for the trial of small causes, in debt, at the suit of one of them, placed in the hands of another of them who was a constable; and to shew that the goods and chattels mentioned in the declaration were the property of one Buckelew the defendant in the execution, and fraudulently secreted _in the house of the plaintiff, and as such were levied on and taken by virtue of the execution. The Court of Common Pleas rejected the evidence and a verdict and judgment were rendered for the plaintiff.

Under the plea of not guilty the evidence offered by the defendants was inadmissible. The charge set forth in the declaration and proved on the trial by the witnesses of the plaintiff appeared prima facie to be at common law a trespass. In such case, the rule of pleading requires matter of justification or excuse,* to be specially pleaded; and this rule has been expressly applied to an entry by virtue of process of fieri facias, Co. Lit. 282, b. 283, a. Com. dig. tit. pleader E. 15, 17; 3 Bos. & Puller, 223; 1 Saund. 298, n. 1; 1 Chit. plead. 492, 495; 2 Chit. pl. 587 and note g.

The evidence offered by the defendants was therefore properly overruled and the judgment should be affirmed.

Judgment affirmed.  