
    CONSTITUIONAL COURT, COLUMBIA,
    NOV. 1806.
    Hunter per pro. ami v. M’Elhany.
    A constable who had taken property from the possession of A. under a warrant of execution against B., offered the execution in evidence by way of justification, without producing the judgment, and it was adjudged that the evidence was admissible; for that he might after-wards prove that the property was liable as the property of B. to the said execution; and that it was not necessary for the constable to shew a judgment.
    Trover, for a mare, tried before Waties, J., in Chester dis. trict. It was proved at the trial, that ihe mare in question had belonged to one Henry Culp, who sold her to John Culp, and that the plaintiff had purchased her from John Culp. The defendant had taken the mare out of the possesion of the plaintiff, as a lawful constable, by virtue of a warrant of execution against Henry Culp, at the suit of the administrators of one M’Kinney, and had sold her; and he offered the execution in evidence, under the A." A. 1733, (copied from st. 7 Ja. 1, c. 5,) in his justification ; but the presiding judge refused to admit the same in evidence, without producing at the same time the judgment upon which the saíne was founded.
    The motion in this court was for a new trial, on the ground that the execution-ought to have been admitted-without the judgment. ■ And Gist, in support of the motion, alleged, that in case the execution had been admitted in evidence, the defendant intended to have justified under it the taking of the mare as the property of Henry Culp, and meant to have shewn by evidence, that at the time when the mare was taken in execution by him, she was in truth the proper chattel of the said Henry Culp, although she had been passed into other hands by a fradulent and pretended transfer.
    Smith, against the motion,
    contended, that the justification could not avail in trover, because the tortious taking is waved. Also, that the defendant had not proved he was a constable.
   Grimke, J.,

delivered the opinion of himself,

Brevard, and Wilds, Justices, Bay, J., absent.

The A. A. 1733, P. L. 135, affords to constables and other inferior officers acting in the due execution of their offices, the privilege of giving any special matter in evidence, under the plea of the general issue, to justify themselves in any action brought against them concerning any cause, matter or thing by them done in the lawful exercise of the duties of their offices. And there is a settled distinction in the cases of an officer, justifying under the process or authority of a court, and a private person. The officer is bound to execute the process directed to him, if it be apparently regular and fair, and ought not to be answerable in case it has been improperly issued ; and, therefore, the process is a sufficient justification as to him, for any act done in obedience thereto; but it is not so in the case of a private person, who must not only shew a writ or warrant of execution, but also a regular judgment to support it. 2 Esp. Dig. 103. Salli. 408. 1 Str. 446. 3 Burr. 1742. We are of opinion a new trial ought to be granted, because the defendant was not suffered to give the execution in evidence without shewing the judgment upon which it had issued. We cannot pretend to say what evidence the defendant might have given afterwards to have made out his justification. He might, or might not, have proved (hat he was a lawful constable, and that the mare in question was subject to the execution by which he took her. These facts we may presume he would have proved, else why should he have offered the execution in evidence 1

Trezevakt, J.,

contra. The case, stated in the brief, shows that the mare in question was not subject to the execution as the property of Henry Culp. The presumption of the transfer to John Culp being fraudulent cannot be entertained, for the defendant has not alleged any such matter in his brief, and we ought not to infer that he could have proved any thing to that purpose, seeing that he has not stated that he could, qí would have done so. Therefore, it was idle to offer the execution in evidence, by way of justification, for if it had been admitted in evidence, it could have had no effect; for it could not have justified the defendant in taking the mare of the plaintiff, who had acquired her by a fair purchase, before the execution issued.

New trial granted.  