
    Stewart Pemberton et al. v. Henry Smith.
    1. Tkoveb. General issue. Evidence. In trover, all matters of defence may be given in evidence under the general issue of not guilty, except a release and the statute of limitations. A plea of justification is not necessary, therefore, on the part of an officer selling property under an execution.
    2. Same. Same. Same. Fraud. Production of judgment and execution. A fraudulent transfer of property is valid between the parties, and can only be impeached by judgment creditors. It is, therefore, necessary, when an officer is sued for property thus held, to produce the judgment and execution, to show that the relation of debtor and creditor existed; and also to show his authority for seizing the property, before he can be heard to allege fraud in its transfer.
    EROM SCOTT.
    This cause was tried before Judge Gakbenhirb, upon a plea of not guilty and issue. The property claimed by the plaintiff, was levied on as the property of John Smith. • The defence relied on was, that it was fraudulently held by the plaintiff. The defendants below did not produce on the trial the judgment and execution under which the officer acted. The jury returned a verdict for $65 ; and the motion for a new trial having been overruled, the defendants appealed.
    Humes, Mynott and Scott, for the plaintiffs in error.
    Young, for the defendant in error.
   McKinney, J.,

delivered the opinion of the Court.

This was an action of trover against an officer for the wrongful seizure and sale of a mule, in the possession of the defendant in error. Judgment for the plaintiff, and an appeal in error.

The ground of defence Is, that the mule was the property of John Smith, son of the plaintiff, and had been fraudulently transferred to the plaintiff to defraud the creditors of the son. The execution and judgment against John Smith, by virtue of which the mule was seized, were not produced on the trial.

In trover, all matters of defence may be given in evidence under the general issue of not guilty, except, perhaps, a release and the statute of limitations. A plea of justification was not necessary, therefore, on the part of the officer; though in trespass it would have been otherwise, under our former system of pleading. But, still, the production of the judgment and execution, as evidence on the trial, was as necessary in the one form of action as in the other, and for the same reason• namely, that as the transfer of the mule was valid, as between the parties, and could only be impeached by creditors of John Smith, it was requisite to produce the judgment and execution, to show that the relation of debtor and creditor .existed between the latter and the plaintiff in the judgment; and also to show the officer’s authority for seizing the property.

But, though the verdict was proper upon the facts before the jury, we think, under all the circumstances, a new trial should have been given, upon terms, for the reason disclosed .in the affidavit of defendants, in connexion with other matters ¡in the record.

The judgment will be reversed, and a new trial awarded, on payment by defendants of all the costs from the return ■term of the summons.  