#### John Weaver *v.*George Cryer & Samuel Moore

From Hertford.

Erroneous process is a justification to the officer who executes it, but not to the person who sues it out.

An execution which issues on a judgment- more than a year anda day oldj is erroneous only.

Where the-Officer and the Plaintiff in an erroneousji. *fa.*are jointly sued in trover, for property sold under it, the former may show his justification under the general issue, although it be jointly pleaded. If however, they bail joined in pleading the justification specially, the plea would be bad as to both.

General x-eputation and cohabitation are evidence of a marriage, in all cases except action for *crim con.*

Troyer. tor catxXiE, in which the usual memoran-tlurn of “ not guilty,” was entered on the Clerk’s docket. Ou the trial before Martin Judge, on the last Circuit, it was proved by the Plaintiff; that the cattle in dispute were levied on as the property of *Bridget Weaver,*by the Defendant *Moo%c,*wSto was a Constable, and -bought by tfie Defendant *Cryer,*and that *Bridget Weaver*had before the levy, sold them to the Plaintiff. At the sale, a woman who lived with ¡he Plaintiff, claimed the cattle by a gift from *Bridget Weaver*; the Plaintiff was present when this claim was made, and said nothing. The Plaintiff also proved, that it was generally reputed, that the woman who lived with him, was his wife. It appeared that he was a mulatto, and that the woman was white.

The Defendants offered in evidence a judgment in favor of the Defendant *Cryer,*against *Bridget Weaver,*rendered by a Justice of the Peace on the 7th of June, 1823, and a writ *offieri facias*tiiejeon, written on the same paper, directed to the Defendant *Moore,*and dated the SOtli of August, 1824, whie.fi was returned levied on the cattle in dispute. His honor rejected the evidence, thinking *338that an officer could not justify under process which issued on a judgment more than a year and a day old.

The Counsel for the Defendant requested the Judge to instruct the Jury, that common reputation was not evidence of a marriage between a mulatto and a white woman, as the policy of the country forbade such connex-ions. His Honor declined giving this instruction, but informed the Jury, tiiat they were at liberty from reputation and cohabitation to infer a marriage.

A verdict being returned for the Plaintiff, the Defendant appealed.

*Hogg,*for the Plaintiff, submitted the case without argument. No Counsel appeared for the Defendant.

Henderson, Judge.

The Judge erred, I think, in re-jécting the e\ idence of the execution, as regarded the Constable, for although issued upon a dormant judgment, yet It' is a justification to the officer, who acted in obedience to it. Nor does it vary the case that the execution is on the same paper with the judgment, from which fact, on a bare inspection, he could discover that the judgment had been granted more than a year and a day before the execution issued ¿ for *non constat*that there had not been an intermediate execution. Of these things, the officer is not presumed to be a judge, his office being merely ministerial, and the issuing an execution, or rather the order to issue it, a judicial act, confided to another. But as to the Plaintiff in the judgment, the execution is no protection to him. He acted as a wrong doer in suing it out, and is liable for the acts of the officer who acted under it, the maxim being *quifacit per (ilium, facit per sc.*We re this an action, where such a defence could not he made under the general issue, but the party bound to plead it specially as a justification, I should feel some difficulty on the subject, for it is most certniu upon authority, that if *two*or *more join*in a plea *339of justification, if it be bad for one, it is bad foi all. I cannot however, consider the short memorandum made upon the Clerk’s docket, as any thing but a mere intimation of the ground of defence, which the adverse party by not refusing, receives in lieu of a formal *plea;*but if drawn out at length, which the Plaintiff may cause to be done if lie wishes, the matter is to be set forth formally. If by law, therefore, the justification may be good for one, and not for the other, as it is in this case, the memorandum will be understood, as a memorandum of a several plea. We are relieved however, from decisively determining this question, as in this action, the justification may be given in evidence under the general issue *;*which is, in its nature a several defence, or rather, in joint actions, a several denial of the acts imputed to the Defendants.

As we cannot grant a new trial to the officer, without granting it to the other Defendantthat is, if it be granted as to one, it must be granted as to both-let the judgment be reversed, and a new trial granted generally.

Taylor, Chief-Justice.

It may be collected froin the record, that this appeal was brought up to ascertain, whether the opinion delivered by the Judge was correct. The opinion affirms two *propositions;*the one is, that a Constable cannot justify under process, when the judgment on which the execution issued is ..dormant. The other is, that a marriage between a mulatto and a white woman, may be proved by common reputation. This appears to be the controversy, from the case made by the Judge, though the record itself places the sale in 1820, three years before the judgment, and more than five before the execution. I conclude therefore, that this statement is a manifest mistake. '

This being an action of *trover,*there was no necessity to plead the justification, for the facts relied upon to *340constitute it, might have been given in evidence under the genera! issue,. Nor indeed, is it regular, in this ac-tinn, to plead a justification, unless it admit the property to be in the Plaintiff, and the conversion, but justifies the latter. *(Comyn’s Digest, Pleader, E*14).

It is therefore 'most fair, to deduce the law from the fact of this case, rather than to decide on a question of pleading; for there the rule is, that if two Defendants join in a [ilea, which is good as to one, but not as to the other, the [ilea is bad as to both — for when they put themselves on the same terms, the Court cannot sever the plea, and say that one is guilty, .and the other is not. Thus, if an officer ¡dead separately under a writ *offufa.*or other process, he need not state the judgment; but if he join in the plea with the Plaintiff in the former action, and the judgment is not stated, the plea will be bad as to boih Defendants ; unless the Plaintiff in the former suit justify in aid of the officer. *Barker*v. *Braham, 3 Wils.*376).

With regard to .the first question, I take the law to be settled, that an officer is bound to execute all precepts that are directed to him from a competent jurisdiction ; „nd inasmuch as he ma’y justify under an erroneous process, he is riot at liberty to disobey it. The distinction is between void and voidable process — the latter, in all cases, affording protection to the officer. Thus, if a *ca. sa.*is taken out after a year, and the Defendant thereupon arrested, and ,-fterwards suffered to escape, debt lies against the officer, though the process was erroneously awarded ; for it was sufficient to arrest him, and the Sheriff may justify in an action of false imprisonment, and therefore cannot let him at large. *(Bushe’s case, Cro. E.*188. *Sherly v. Wright, Ld. Ray.*775).—But with respe-ct to the Plaintiff in the judgment, as he sued out the execution irregularly, he cannot derive a title under the sale so effected — though the exception *341could not be taken to it if a stranger had become the purchaser.

On the question of Evidence, I apprehe id that the law was correctly stated — that general reputation and cohabitation, are evidence of a marriage, $ it is so in all cases, except in actions for *crim. con.'*•' •

There ought to be a new trial.

Per Curiam. — Judgment reversed.