
    Asbell vs Tipton and Saml. Beatty, and Howard & Hamilton vs Tipton and H. Beatty.
    Replevin. Case 94.
    Error to the Estill Circuit.
    
      May 19.
    Pleas and pleading. Distress warrant. Rent. Damages.
    
    The case stated.
   Judge Marshall

delivered the Opinion of the Court.

These are two actions of replevin, brought, the one by Asbell and the other by Howard & Hamilton, for various articles of personal property siezed by Tipton, a constable, under four distress warrants, of which one purported to be for rent due to Samuel Beatty and the others for rent due to Henry Beatty, upon whose oath all of them were sued out. The two cases were argued together and the principal questions being the same in both, they will be decided together, making such discriminations as may be necessary.

An officer is justified in levying a distress warrant for rent, tho it do not state that the justice who issued it resides in the county in winch, the land lies.

In pleading a warrant of distress as justification for taking property, officer not boundtoaver that the land for which rent was due was situated in the county.

To authorize a judgment de retorno habendo, in favor of an officer who has tallen property undor a distress warrant, be should aver and prove, that rent was due for land in the county, & such other facts as show that the warrant rightfully issued.

The first question common to the two cases is, whether, as the distress warrants in this case do not state, that the land for which the rent was claimed, lies in the county in which the justice who issued them resides, or rather because they do not state that they were issued by a justice of the county in which the land lies, they should be deemed ineffectual as a justification to the constable who acted under them.

This question, we think, should be answered in the negative, for the justice having general jurisdiction over the subject, the presumption may be indulged in favor of the jurisdiction actually exercised, that the land for which the rent was claimed lay in the county of which the justice was an officer. It would certainly have been more correct that this fact should have been stated in the warrants; but as it might exist notwithstanding the omission to state it, and as its existence, notwithstanding the omission to state it, would sustain the jurisdiction, we are of opinion that the constable was not bound to presume that the fact did not exist, nor to regard the warrant as void, but was justifiable in sieziug property according to its mandate, and would have been justifiable in selling it if the defendants had not interposed the writ of replevin, to stay the sale and to try the validity of the proceeding.

2nd. We are also of the opinion, and it seems to follow from what has been said, that in relying upon the w,arrant in pleading merely as a justification of the seizure, the constable was not bound to aver the fact that the land was situated in the particular county, because the warrant itself not being void on its face, formed a complete justification, whether the facts, the existence of which it authorized him to presume, did in truth exist or not.

3rd. But in a pleading by way of cognizance, which should show not only that the officer was justifiable in making the seizure, but also that he had a legal right in virtue of the warrant, and of the right of the plaintiff therein, to have a return of the goods for the purpose of making sale; we think it was incumbent on him to aver, and if denied, to prove not only that rent was in fact due, for which the distress warrant issued, but also that the other facts existed, which were necessary to show that these particular distress warrants were rightfully issued, so that a sale could be rightfully made under them, and such averments would be necessary even if the facts were fully stated in the warrants. For the statements in the warrants, being wholly ex parte, sustain the warrants only so far as they operate as a protection against liability for obedience to their express command, and are no evidence of the facts stated, in a proceeding which involves essentially the question whether they were rightfully issued.

That which is not denied by the pleadings need not be proved.

One in whose name a distress warrant issues, without his authority, is not responsible, but landlord or his agent, who authorizes the issual of a distress warrant, areparties to a seizure under it.

In both of the cases, the cognizances state substantially, though not with the particularity which would be desirable, that the sum named in the warrants was due as rent: but neither of them avers that the rent was due for land in the county, nor is this fact made out in proof, nor is the fact admitted by the replication or plea to the cognizance, which in one case is a mere general denial of the cause of taking alleged, and in the other is the same with the addition of a denial that any rent was due, which denial we do not consider as being embraced in the first issue.

It follows, that in both cases the cognizances are insufficient to authorize a judgment of return, and as the issue does not, in either case, include the question as to the locality of the land, as to which the proof is also defective, the judgment of return in each case is erroneous. In the case in which the averment of the rent being due was not denied, it was not necessary to prove it. In the other case it was proved.

4th. In the action in which Samuel Beatty is a defendant, and to which he pleaded non cepit, the warrant which issued in his name and for rent due to him, but upon the oath of Henry Beatty, was, on that account, void, and did not, therefore, justify the seizure made under it, and the verdict should have been against him, if he expressly ot impliedly authorized the application for the warrant. The peremptory instruction that the juiy should find for him, could only be justified on the ground of a total absence of any evidence conducing to prove such authority, as to which we need not now decide.

Plaintiff in replevin, whoobtains voidict, entitled to costs — parties are respectively-entitled to costs expended in the successful defence of their rights.

Turner for plaintiff: Hanson for defendants,

But in regard to both cases, it is proper to say that the landlord or his agent, who authorizes the issuing of a distress warrant, must be regarded as a party to the seizure made in pursuance of its mandate, and as subject to damages if the seizure is wrongful.

5th. In the case against Tipton and Samuel Beatty, as the seizure under the warrant, in the name of Samuel Beatty, was illegal, and the plaintiff had a verdict against Tipton for one cent in damages therefor, he was entitled to his costs of suit, so far as they were incurred in the assertion of his right to the property thus illegally seized, and to damages for the seizure; and it ivas certainly erroneous to render a judgment against him for the defendant’s costs incurred in unsuccessfully resisting his right to the extent to which it was established. Should another trial result as the last did, in a verdict for the plaintiff, as to a part of the property sued for, and also entitling the defendants or either of them, to a return of- the residue, each party will be entitled to costs incurred in the successful maintenance of his right, and judgment should be rendered accordingly.

6th. Upon the principles already stated, it was manifestly erroneous to instruct the jury, as the Courtdid in both cases, that they must find for the defendant, Tipton, the value of the property seized, except as to that which was seized under the warrant in the name of S. Beatty.

Wherefore, the judgment in each case is reversed, and each cause is remanded for a new trial, and with directions to allow the. pleadings to be amended, should the parties or either of them desire it.  