The opinion of the court was delivered by
Barrett, J.This is trespass for assault and battery. Plea, not guilty, and notice of special justification that the alleged trespass was committed in the rightful defense and protection of the chattels and close of the defendants, without unreasonable or unnecessary force.
Under the general issue, the plaintiff’s cause of action and right of recovery were established by proving the blow to have been given by the defendants. That being proved, the defendants then take the burden of justifying, and that burden requires of them to show that their alleged justification is true in the legal sense. The plaintiff had proceeded beyond the strict requirement of the issue, and proved the occasion and circumstances of the alleged trespass, and, so far as his proof went, it tended to show that he was doing a lawful official duty. It. was not incumbent on him in order to make out his case, to show that he was constable at all or that he had any process, or was having any right to meddle with the property in question.
When he proceeded without objection to state as a witness the occasion and circumstances, and therein that he was, as constable, attempting to attach the horse on lawful process against the owners of the horse, the measure of his burden was not increased, nor was that of the defendants diminished. If the plaintiff, instead of being plaintiff, had been defendant in an action of trespass for taking the horse, and he had put his defense on the ground of a' taking as constable on lawful process, then there would be ground *344for insisting that he must show that he was fully clothed with lawful authority to take the property.
Upon the state of the evidence as the plaintiff made his case in the opening-, if the defendants would show that what they did was rightful under their justification, it was for them to show that, though the plaintiff was constable of Hardwick, and as such was in the act of serving the writ by attaching the horse, yet he had not lawful authority to act officially outside of Hardwick. Failing- to do this, there was no ground for making the point, as it was made upon, and not till, the opening of the argument for the defendants.
It could not be assumed in behalf of the defendants upon that state of the evidence, that the plaintiff was not clothed with lawful authority by the vote of the town of Hardwick according to the provision of the statute in that respect.
We think in point of law, if it had been properly made and presented by the course of the pleadings and trial, that such vote of the town would be necessary to authorize the plaintiff to serve said writ, notwithstanding the very singular manner in which the statute on this subject is drawn. Section 79 of chapter 15 of the General Statutes gives authority affirmatively to the constable to serve writs within his town. Section 81, in the body, affirmatively extends Ms right to serve writs within the limits of the state, returnable before a justice of the peace within his county. And this, instead of being followed by a restraining negative imposing a conditional limitation, is followed by an affirmative proviso as to the vote of the town to extend such jurisdiction: a modern and somewhat novel mode of- imposing a condition precedent to the right fully and affirmatively and unconditionally conferred in the body of the section, and a very wide departure from the example set in the act of 1831 on the same subject.
II. The point made as to the attachment being colorable, involves the assumption that the plaintiff had ample official authority to serve the writ. It is claimed that his being aware of the alleged purpose of the plaintiff in that writ, precluded him from the exercise of that official authority. The case shows that the plaintiff in that writ had a valid claim and cause of action against *345tlie defendant in it. The borse was lawfully subject to being attached upon it. The alleged illegality of the proceeding, involved in tbe point under consideration, consists in the fact that the-plaintiff therein had the purpose of restoring possession of the horse to S. C. Eaton, and the officer, the present plaintiff, being aware of that purpose, was not only deprived of his authority' and duty to serve the writ as directed by the plaintiff therein, but became a trespasser in attempting to serve it. Aside from that purpose, it is not claimed that the attachment of that horse upon that writ would not have been entirely lawful. It is virtually conceded that it would have been, and that the efforts of the plaintiff, as officer, to make the attachment, would have been lawful and proper.
We have a course of decisions in this state based on unquestioned principle and countenanced by many cases in England, and other states of the Union, to the effect that such purpose would not render the attachment of the horse upon that writ unlawful, even as to the plaintiff in the writ. Of course it would not be unlawful in the officer to make such attachment, merely because he was aware of such purpose in that plaintiff. South Royalton Bank v. Suffolk Bank, 27 Vt., 505. The principle is involved and strongly illustrated in cases for malicious prosecution, in which the plaintiff can not recover, however virulent the malice, if probable cause for the prosecution existed. In those cases, the plaintiff has the burden of negating the existence of probable cause, as well as of proving the existence of malice. Bul. N. P., 14 ; Barron v. Mason, 31 Vt., 189. See also Chatfield v. Wilson, 28 Vt., 49. The case, State v. Buchanan et al., 17 Vt., 573, seems to cover and dispose of this point.
III. We think the evidence tended to connect Tillotson with Eairman as a participant in the assault, and so the case was properly submitted to the jury in this respect.
Judgment is affirmed.