After advisement, the following opinion was delivered:
By the Chancellor.
The defendant being sued as a constable for an act done by virtue of his office, bad the right, under the general issue, to give any matter in evidence which was a defence to the suit. 2 R. S. 353, § 15. As he was sued for entering the plaintiff’s close as well as for taking the whiffletree and devices, it was proper to give the attachments in evidence as a justification for the entering of the close to take the property of the person against whom the attachments had issued, even if he was liable for taking the property of the plaintiff which had been attached to the waggon in the manner stated by the witness. I have no doubt, however, that the supreme court was right in holding that if the plaintiff or his servant had exchanged the [516]*516whiffletrees and devices, and affixed his own to the waggon without the knowledge or consent of the constable, an action of trespass would not lie against the latter for taking them away w'th the waggon, unless he was aware of the fact that they had been thus changed, provided he was justifiable in taking the waggon itself. From the evidence before the justice, there can be no doubt that the constable acted in good faith, believing that the whiffletrees and devices were the same which he had originally attached with the waggon as the property of Godfrey. It was the plaintiff’s own fault, therefore, that this mistake occurred; and if any action could be sustained against the constable with-^ out returning to him the whiffletrees and devices which actually belonged to the waggon, of which I have some doubt under the circumstances of this case, it must have been an action of trover for refusing to return the property to the plaintiff after the constable was informed of the mistake which had occurred. The defence of the constable, therefore, depended mainly upon the question whether he was justified in taking the waggon itself under the attachment as the property of Godfrey.
The evidence before the justice was'sufficient, prima facie, to prove that the waggon and harness were the property of Godfrey, as he was in possession thereof, claiming to be the owner, before he ran away. This prior occupancy was sufficient evidence of property in Godfrey to cast upon Parker the burden of proving a previous right in himself, or a subsequent title to the property derived from such prior occupant; and as no such proof was given or offered before the justice, the defence of the constable was complete if he had attachments against Godfrey which authorized the taking of his property. The giving of those attachments in evidence was therefore not only pertinent to the issue between these parties, but an essential point in the defence of the constable. '
As the attachments were regular on their face, and the .justice had general jurisdiction over the subject matter of the suits in which they were issued, the burden of proof lay upon Parker to show that the requisites of the statute [517]*517had not been complied with, even if the plaintiff’s counsel is right in supposing that the constable could not protect himself under process of a court of competent jurisdiction, apparently regular, and where he had not the means of knowing that the court had exceeded its jurisdiction in the manner of issuing such process. The only exception to this rule, of which I am aware, is the case of an officer justifying under an execution for the taking of goods claimed by a stranger; but even in that case, the decision in High v. Wilson, 2 Johns. R. 46, and in the several cases in the English courts which preceded it, went no further than to require the production of the judgment in a suit with a stranger who showed in himself a title to the property, which was good as against the defendant in the execution. In Lake v. Billers, 1 Ld. Raymond, 733, Martin v. Podger, 5 Burr. R. 2631, Ackworth v. Kemp, 1 Doug. R. 41, and in the case of High v. Wilson, before referred to, the plaintiffs showed title in themselves, derived from the defendant in the execution before the lien of the execution attached thereon. The execution of itself, therefore, was no defence to the officer, who could only make it available against a stranger to it, by connecting it with a judgment, and then showing that the transfer of the property to the person thus claiming it was fraudulent and void as against the creditor who had recovered such judgment. In this view of the subject, it will be seen that the cases referred to may be sustained upon principle, as the production of the judgment record was necessary to establish the fact that the execution issued upon a judgment rendered for a cause of action'which existed, or for a debt contracted, before the issuing of such execution, otherwise there would have been no creditor as against whom the transfer of the property could have been fraudulent; but there are many cases in which it has been held that where the officer has levied upon property in the possession of the defendant in the execution, and it has been subsequently taken from him by a stranger, he may sustain an action against such stranger upon his title and possession under the execution alone, without producing the judgment to show that the execution had regularly issued. If there is any case in which it has been [518]*518held that a production of the judgment was necessary to protect the officer against a mere intermeddler, who had no claim to the property or to the possession thereof even as against the defendant in the execution, the court must have erred in following the decision in Lake v. Billers, and the other cases of that class, to which 1 have before referred, while -the principle upon which those decisions were based has been entirely overlook or misunderstood by the court.
Having disposed of this class of cases, which have been supposed by many to be anomalous in their character, and to form an exception to a general rule, 1 am prepared to go with- Mr. Justice Marcy, in his opinion, in the case of Savacool v. Boughton, 5 Wendell, 170, in declaring the settled rule of the common law, at least in this state, to be, that a mere ministerial officer who executes the process of a court having jurisdiction of the subject matter, and having also jurisdiction to issue such process in general, or in certain specified cases, is protected in the execution of such process if it is regular on its face, and apparently within the jurisdiction of the court issuing the same. The several cases on this subject have been so fully and ably examined by that learned judge, in the elaborate opinion to which I have referred, that it would be a useless waste of time for me to attempt to go over the same ground. Suffice it to say that the cases to which he has referred, with one or two exceptions, fully sustain the conclusions at which he arrived on this subject. Even the cases of Suydam & Wickoff v. Keys, 13 Johns. R. 444, and Wise v. Withers, 3 Cranch, 381, which are supposed by Justice Marcy to conflict with this general rule, may perhaps be considered as only forming a reasonable exception to it, and as not coming within the just and equitable principle which protects a ministerial officer in the execution of process which he is bound to presume to have been legally and properly issued.
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After advisement, the following opinion was delivered:
By the Chancellor.
The defendant being sued as a constable for an act done by virtue of his office, bad the right, under the general issue, to give any matter in evidence which was a defence to the suit. 2 R. S. 353, § 15. As he was sued for entering the plaintiff’s close as well as for taking the whiffletree and devices, it was proper to give the attachments in evidence as a justification for the entering of the close to take the property of the person against whom the attachments had issued, even if he was liable for taking the property of the plaintiff which had been attached to the waggon in the manner stated by the witness. I have no doubt, however, that the supreme court was right in holding that if the plaintiff or his servant had exchanged the [516]*516whiffletrees and devices, and affixed his own to the waggon without the knowledge or consent of the constable, an action of trespass would not lie against the latter for taking them away w'th the waggon, unless he was aware of the fact that they had been thus changed, provided he was justifiable in taking the waggon itself. From the evidence before the justice, there can be no doubt that the constable acted in good faith, believing that the whiffletrees and devices were the same which he had originally attached with the waggon as the property of Godfrey. It was the plaintiff’s own fault, therefore, that this mistake occurred; and if any action could be sustained against the constable with-^ out returning to him the whiffletrees and devices which actually belonged to the waggon, of which I have some doubt under the circumstances of this case, it must have been an action of trover for refusing to return the property to the plaintiff after the constable was informed of the mistake which had occurred. The defence of the constable, therefore, depended mainly upon the question whether he was justified in taking the waggon itself under the attachment as the property of Godfrey.
The evidence before the justice was'sufficient, prima facie, to prove that the waggon and harness were the property of Godfrey, as he was in possession thereof, claiming to be the owner, before he ran away. This prior occupancy was sufficient evidence of property in Godfrey to cast upon Parker the burden of proving a previous right in himself, or a subsequent title to the property derived from such prior occupant; and as no such proof was given or offered before the justice, the defence of the constable was complete if he had attachments against Godfrey which authorized the taking of his property. The giving of those attachments in evidence was therefore not only pertinent to the issue between these parties, but an essential point in the defence of the constable. '
As the attachments were regular on their face, and the .justice had general jurisdiction over the subject matter of the suits in which they were issued, the burden of proof lay upon Parker to show that the requisites of the statute [517]*517had not been complied with, even if the plaintiff’s counsel is right in supposing that the constable could not protect himself under process of a court of competent jurisdiction, apparently regular, and where he had not the means of knowing that the court had exceeded its jurisdiction in the manner of issuing such process. The only exception to this rule, of which I am aware, is the case of an officer justifying under an execution for the taking of goods claimed by a stranger; but even in that case, the decision in High v. Wilson, 2 Johns. R. 46, and in the several cases in the English courts which preceded it, went no further than to require the production of the judgment in a suit with a stranger who showed in himself a title to the property, which was good as against the defendant in the execution. In Lake v. Billers, 1 Ld. Raymond, 733, Martin v. Podger, 5 Burr. R. 2631, Ackworth v. Kemp, 1 Doug. R. 41, and in the case of High v. Wilson, before referred to, the plaintiffs showed title in themselves, derived from the defendant in the execution before the lien of the execution attached thereon. The execution of itself, therefore, was no defence to the officer, who could only make it available against a stranger to it, by connecting it with a judgment, and then showing that the transfer of the property to the person thus claiming it was fraudulent and void as against the creditor who had recovered such judgment. In this view of the subject, it will be seen that the cases referred to may be sustained upon principle, as the production of the judgment record was necessary to establish the fact that the execution issued upon a judgment rendered for a cause of action'which existed, or for a debt contracted, before the issuing of such execution, otherwise there would have been no creditor as against whom the transfer of the property could have been fraudulent; but there are many cases in which it has been held that where the officer has levied upon property in the possession of the defendant in the execution, and it has been subsequently taken from him by a stranger, he may sustain an action against such stranger upon his title and possession under the execution alone, without producing the judgment to show that the execution had regularly issued. If there is any case in which it has been [518]*518held that a production of the judgment was necessary to protect the officer against a mere intermeddler, who had no claim to the property or to the possession thereof even as against the defendant in the execution, the court must have erred in following the decision in Lake v. Billers, and the other cases of that class, to which 1 have before referred, while -the principle upon which those decisions were based has been entirely overlook or misunderstood by the court.
Having disposed of this class of cases, which have been supposed by many to be anomalous in their character, and to form an exception to a general rule, 1 am prepared to go with- Mr. Justice Marcy, in his opinion, in the case of Savacool v. Boughton, 5 Wendell, 170, in declaring the settled rule of the common law, at least in this state, to be, that a mere ministerial officer who executes the process of a court having jurisdiction of the subject matter, and having also jurisdiction to issue such process in general, or in certain specified cases, is protected in the execution of such process if it is regular on its face, and apparently within the jurisdiction of the court issuing the same. The several cases on this subject have been so fully and ably examined by that learned judge, in the elaborate opinion to which I have referred, that it would be a useless waste of time for me to attempt to go over the same ground. Suffice it to say that the cases to which he has referred, with one or two exceptions, fully sustain the conclusions at which he arrived on this subject. Even the cases of Suydam & Wickoff v. Keys, 13 Johns. R. 444, and Wise v. Withers, 3 Cranch, 381, which are supposed by Justice Marcy to conflict with this general rule, may perhaps be considered as only forming a reasonable exception to it, and as not coming within the just and equitable principle which protects a ministerial officer in the execution of process which he is bound to presume to have been legally and properly issued. It is admitted to be the law that the process of a court of inferior jurisdiction will not protect the officer, if the want of jurisdiction to issue the same appears tipon the face of the process ; and I apprehend also the same principle may be ap[519]*519plied to a case where the want of jurisdiction arises from a fact of public notoriety which is legally presumed to be within the knowledge of the officer as well as others .and of which he is, therefore, bound to take notice. If the decisions in the cases of Suydam & Wickoff v. Keys, and Wise v. Withers, can be supported at all, it must be upon this principle; although in neither of those cases does the court appear to have put its decision upon the ground, that the officer was bound to take notice of the fact that the persons who had been assessed, were not residents of his school district, or that the party upon whom the militia fine had been imposed was a judicial officer of the United States, and, therefore, not amenable to a court martial for the non-performance of militia duty. It is not necessary, however, that I should express an opinion upon the question whether these were matters of such public notoriety, in the district where the officer resided, and where the process was to be executed, as to make it the duty of the officer at his peril, to take notice of the fact that the process was illegal, and issued without authority.
In the case under consideration, the attachments were regular upon their face, and were issued by a court having jurisdiction of the subject matter of the suits, and having also authority to issue such process, upon a compliance with the statutory regulations on that subject; and there was no fact within the knowledge of the constable, from which he could have supposed that there was any irregularity in the issuing of the attachments. They were, therefore, a sufficient authority to him to enter upon the premises of the plaintiff in error, to take the waggon of Godfrey, the defendant in the attachments. Having the authority to enter and take the waggon, as I have before observed the constable was not liable to an action of trespass, either for entering upon the close of Parker, or for taking the whiffletree and devices which had been attached to the waggon without his knowledge or consent. There was, therefore, no error in the judgment of the justice; and the decision of the supreme court, affirming the same, and reversing the erroneous judgment of the court of common [520]*520pleas, should be affirmed by this court, with such costs as the statute gives to public officers in cases of this kind.
On the question being put, Shall this judgment be reversed ? all the members of the court present (twenty in number) voted in the negative.
Whereupon the judgment of the supreme court was affirmed.