
    AMERICAN TOOL COMPANY v. SMITH.
    Evidence—Answer—New matter constituting a defense by way op
    JUSTIFICATION, IS REQUIRED TO BE PLEADED BEFORE IT CAN BE PROVED.
    Appeal from judgment rendered at circuit.
   Per Curiam.

The evidence given to justify the taking of the property under a tax warrant, delivered to the defendant as marshal of the city and county of New York, was not admissible under the answer. It was new matter, constituting a defense by way of justification, and was required to be pleaded before it could be proved. The general rules of pleading prescribed by the Code required as much as that, and so do the provisions contained in section 1720. The remedy is by motion for leave to amend his answer, and not by application to conform the pleadings to the facts proved.

The exception taken to the admissibility of the evidence is required to be sustained, and the judgment must be reversed and a new trial ordered, with costs to abide event.  