By the Court,
Savage, Ch. J.The questions raised in this case are, 1. Whether the plaintiff had a sufficient possession to maintain trespass ; 2. Whether the defendant was liable in this action ; and 3. Whether the defendant should have been permitted to prove, under the general issue, that the horses belonged to Rice and that they were sold upon executions against him. 1. Upon the first question there can be no doubt. The plaintiff had the general property in the horses ; he lent them to Rice to go to Clarence, but no farther; he had a right to reduce the property to his actual possession whenever he pleased ; he was therefore constructively in possession, and the action on that ground is well sustained. 2. The defendant, with others, directed the detention of the property, and it was sold for the benefit of the defendant and the others. It is true that the defendant had no agency in the first taking of the property; but within a short time, and probably within a few hours, from the language of the witness, the creditors of Rice, of whom the defendant was one, had a consultation and directed the constable to detain the horses. It is evident that the officer had not resolved to detain the horses until he had the direction from the defendant and the other creditors of Rice, nor would he sell them without being indemnified. I think, therefore, the jury were justified in finding the defendant guilty of the taking the property. It is clear that but for the interference of the defendant and the others, the plaintiff would not have been deprived of his property. 3. The taking of the horses was not justified; there was no legal evidence of any process authorizing the seizure of the property, nor could the defendant be permitted to give such evidence under the pleadings. In Demick v. Chapman, 11 Johns. R. 132, the action was like this, trespass de bonis asportatis, and the plea not guilty. The defence offered was similar to that offered in this case—that the property had been seized by virtue of process against the person who had fraudulently conveyed it to the plaintiff. This court said that the excuse *113that the property was taken by virtue of an attachment should have been specially pleaded ; that matter of justification or excuse at common law must be pleaded, and cannot be received in evidence under the general issue. The reason of the rule is to prevent surprise. 1 Chitty’s Pl. 492. 1 Sawn. 298, «. 1. 7 Cowen, 35.
New trial denied.