
    Clay and Kerley vs. Caperton.
    Error to the Madison Circuit; dafnes Clark, Judge.
    IWliEVlif.
    Case 7.
    October 6.
    
      Justification by office — ¡juslificatJbñ by plaintiff inexecutiom
    
    Statement of the case.
    (1) Án officer in an action* of replevin against him, seMngthe^ property, by sliowing an againsMfis adversary issued by ajus-amounuTf whiohhohad jurisdiction, ifsSface without"showing thejmlgmont.
   Opinion of the Court, by

Gh. Í. ^oyle.

THIS waa,an action of replevin, brought by Caper-' ton against Clay and Kerjey, for taking two horsesi Clay pleaded not guilty, and Kerley, by consent; had leave to give any special matter in evidence. On the trial, after Caperton had proved the takingbf the horses by Kerldy, in virtue of executions against Caperton’s estate, isshed at the suit óf Clay, upon two replevin bonds taken on a distress warrant for rent, from Mead and Caperton as his security, and returned to the office of William Kerley, á justice of the peace, who issued the executions thereon, Kerley, the defendant; produced the executions in evidence, and proved that he was an acting constable, and in virtue of the executions had seized the horses in question.

The court; on the motion of Kerley for that purpose, *’®^usei^ to instruct the jury that he was justified in the seizure and detention by virtue of the executions, and on the motion fif Caperton, instructed the jury that the executions were void, and afforded no justification to the defendant Kerley. To these opinions Kerley excepted, and a verdict and judgment having been entered against the defendants, they have brought the case ^1"18 court hy writ °f error.

R is obvious that the decision of the circuit court cannot be sustained upon legal principles. The executions wére writs fu fa‘in debt, f°r sums within the ju-Hsdiction of a justice of the peace, and on their face were in all respects regular. In such a case, the exe-cutious’ though they may be irregular and void as to the plaintiff in them, are, nevertheless a sufficient justification to the constable or officer who is bound to execute them.

(2) Thu plaintiff in an Í^ainíhim for causing a seizure of f^o^the1^ judgment on which it iss\¡t ecl-~ArS-

Sharp, attorney-general, for plaintiffs; Tamer, for defendant.

For there,is a clearly established distinction between the plaintiff at whose suit an execution is issued, and the officer to whom it is directed to be executed. The former must show, if sued, a judgment which authorizes the execution; but it is sufficient for the latter to show the execution, and ¡/-that has nothing on its face which renders it irregular, and void, it is to him a justi-fiention. 2 Bac. Ab. title Execution, letter P.

The judgment reversed with costs, and the cause remanded for anew trial to be had not inconsistent, herewith. ■  