
    Simpson vs. Watrus.
    In trespass de bonis, if the defendant seek to justify the taking under an execution in his favor against the plaintiff, he must produce the judgment as well as the execution.
    The justification in such case cannot he given in evidence under the general issue. On the trial of an action of trespass de bonis, in which the general issue only was pleaded, one P. was called by the plaintiff, who swore that he took the goods in question pursuant to directions from the defendant: whereupon the latter cross-examined the witness and was permitted to show by him, notwithstanding the testimony was objected to as both inadmissible under the pleadings and secondary in its character, that he, being a constable, took and sold the goods on a justice’s execution issued against the plaintiff in favor of the defendant. Held, that though, on a re-examination of the witness, the plaintiff called out the execution, and inquired into the proceedings under it with a view of obviating their effect, he did not thereby waive his previous objection so as to render it unavailable on error.
    
      Held, further, that the execution thus called out was not evidence of the judgment recited in it.
    Error to the Seneca C. P. Simpson sued Watrus before a justice, and declared in trespass de bonis &c. Plea, the general issue. Joseph Patterson, a constable, was sworn for the plaintiff, and testified that, by the direction of the defendant, he took the goods in question from the plaintiff’s possession and sold them. On cross-examination, the defendant put several questions to Patterson, the answers to which might disclose that he took the property under an execution. The questions were objected to for that reason ; the ground being distinctly taken, by the plaintiff that the defendant could not justify under process of execution in his favor against the plaintiff, because he had pleaded the general issue only. The constable was however allowed to answer. He alluded to the execution, saying the defendant gave him directions to seize and sell the property under it which he accordingly did. The plaintiff objected that the execution could not be proved by parol. This objection was also overruled, and the constable allowed to describe the execution and state by whom it was issued. He said the execution was in favor of the defendant and against the plaintiff. The plaintiff then called on the witness to produce the execution, which he did. It was in the usual form of justices’ executions, reciting the judgment, &c. The plaintiff inquired into the witness’ proceedings under the execution, proved that he had made a previous levy in virtue of it, and contested the regularity of the present levy and sale. The defendant moved for a nonsuit, on the ground that he had made out a justification. The plaintiff insisted that the defendant had not justified and could not, for the reason, 1. That he had neither pleaded nor given notice of matter in justification 5 2. That if the execution were in evidence, no judgment had been proved 3 and 3. That the judgment was satisfied by the first levy. The justice denied the motion, and gave judgment for the plaintiff. The judgment was reversed by the C. P., on certiorari 3 whereupon the plaintiff sued out a writ of error.
    J. Herron, for the plaintiff in error.
    
      Ji. T. Knox, for the defendant in error.
   By the Court, Cowes, J.

It is not necessary to examine into the effect of the first levy ; for the objections which went to the form of pleading and the defect and form of proof, are sustained by obvious grounds, upon which the judgment of the common pleas must be reversed. It is not denied that a plea or notice of justification was essential, nor that secondary proof of the execution was inadmissible, nor that a judgment should have been shown 5 (See Herrick v. Manly, 1 Caines’ Rep. 253 ;) but it is insisted that the objections addressed to the want of special pleading and the oral evidence of the execution, were waived by the plaintiff’s re-examination of the witness Patterson, calling for the execution and inquiring into the previous levy and the proceedings which followed it. It is also insisted that the recital in the execution was sufficient evidence of the judgment. It is a good answer to the ground of waiver, that the plaintiff struggled to avoid the further examination of Patterson, by interposing the proper objections. These being wrongfully overruled, he was put to the option of abandoning all ulterior inquiry, or attempting, as he did, to invalidate the proceedings under the execution irregularly proved. He had a right to do either, without the act being construed into a waiver. It would be still more disingenuous to declare that the recital in an execution which should not have been inquired of at all, shall first be forced upon a party contrary to law, and because he has been driven to the necessity, for the purpose of avoiding its effect, of noticing it more particularly, it shall therefore be deemed competent evidence against him of the judgment recited by it; and this too, in the face of his objection that the judgment was not proved. (See Avery v. Slack, 17 Wend. 85—87.)

Judgment reversed.  