after stating the case delivered his opinion as follows:
By the act of 21st March 1772,1 St. Laws 604., where an action is brought against a constable for any thing done in obedience to a justice’s warrant, it is necessary to make the justice a party to the suit; and the act directs, that “ on “ proof of the warrant the jury shall find for the constable, notwithstanding any defect of jurisdiction in the justice;” but it is not said expressly, whether the justification may be given in evidence on the plea of not guilty.
Cases have been cited to shew, that where several persons join in a pica of justification, if the matter pleaded is a good justification of some, but not of all, the- plea is bad as to all. These cases are all on demurrer to the plea. Here, there is no demurrer. Whether the constable could have given the warrant in evidence without the judgment, is not now the question; for the plaintiff himself produced the evidence, which completely justified the constable; and it seems to me, that the jury having received that evidence were bound to find for him. But taking the issue as we find it on the record, I think the constable might have given the warrants in evidence withoutthe judgments. The court of Common Pleas have considered the three defendants as having joined in one plea of justification. It does not strike me in that light. The short entry of “ not guilty with leave to justify,” is not to be compared to a special plea of justification by the three defendants. The only plea, or rather memorandum for a plea, on the record, is not guilty, which may be very properly applied to the defendants severally, and then the leave to justify will be several also. I am sorry to be *218obliged to remark, that our loose manner of pleading produces great uncertainty. In the present instance, it does not even appear, what matter the defendants meant to offer as iheir justification. But as the nature of the case distinguished tlje constable^ justification from the others, it is not to be presumed, that he intended to confine himself to their justification. If the plaintiff’s attorney will go to trial on this confused kind ofissue,he must take the consequence; he had a right to insist on a specification of the matter intended to hp offered in evidence. As it stands eaph defendant had a right to give in evidence, any thing which would amount in law to a justification,
I am of opinion that the court of Common Pleas were wrong in that part of their direction to the jury which related to the constable. The judgment must therefore be reversed, and f1 venire facias de iiqvo awarded,
Yeates J.The plea of non cul. with leave to justify, as to all the defendants below, seems warranted by our practice. Our pleadings are drawn up very shortly, and non cul. is a several issue as to all tfie defendants, though distinct matters may be xipcessary for their justification respectively,
The act of assembly of 21st March 1772, I St. Laws 604, specially provides that if an action shall be brought against a constable, for any thing done in obedience to the warrant of any justice of the peace, or against any other person or persons acting in his aid, jointly with such justice, on producing and proving such warrant at the trial of such action, the jury shall find fpr such constable and person or persons so acting as aforesaid, notwithstanding any defect of jurisdiction in such justice; and if the verdict shall be found against the justice, the plaintiff shall recover his costs &c.
Our law points out no particular plea for the constable or justice, as is done by the British, statute of 21 Jac. 1. c, 12., which direpts that they may plead the general issue, and give the special matter in evidence; Espin. Dig. 338.; but from the . generality of it.s terms, I have no doubt, that the ponstabie might give the execution in evidence under the general issue of not guilty, and without difficulty under the tepve to justify,
*219ffo the constable, it is of no moment how the justice bás proceeded, provided he has the sanction of the latter for his conduct. It might be objected against the jtistice, that the issuing of his execution would not shelter him from damages; Unless founded up6n a judgment in á casé \vherein hé had jurisdiction; but not against the constable!
But all difficulty as to pléádiñg is got over In the present Instance. For if even we admit, that ás to the justice and the plaintiffs in the suit before hitti, they coiild not give the execution in evidence, without shewing the judgment, thé plaintiff below himself gave the two executions in évidencé as is stated in the bill of exceptions; and being thus pro* duced, he cannot how object that they were improperly fe» ceived under the plea. They operated, as a complete shield to the constable, and the jury were bound to find for him; though the circumstances of the case might have turned out to be such, as to warrant a verdict against the other defen» dants,
I am of opinion, that the judgment of the court of Com» mon Pleas be reversed, and a Henire facias de novo awarded*
13jrac:kenr.idge J. concurred*Judgment reversed; an4-, Venire de npno-i