ERROR TO LEE.
An officer who defends in replevin, should set up that he took the property by execution.
This was an action of replevin, commenced in the Lee Circuit Court, by the defendant in error, against Ozias Wheeler, sheriff of Lee county, and was tried at the June term, A. D. 1858, of said court, before Eustace, Judge, and a jury, and a verdict found for defendant in error, and damages assessed at ten dollars. A motion for a new trial was made and overruled, and a bill of exceptions was signed and sealed by the judge, and made part of the record.
The declaration consists of one count, alleging that the plaintiff in error, on the 10th day of April, 1857, in Dixon, in Lee county, in a certain dwelling-house there, took a certain pianoforte of said plaintiff, and unjustly detained the same, etc.
The defendant filed to this declaration four pleas, viz.: 1st, Noncepit; 2nd, Non detinet; 3rd, Property in defendant; 4th, Property in Patrick M. Kilduff.
*43To the first and second pleas, the plaintiff took issue to the country.
To the third and fourth pleas, the plaintiff replied, property in the plaintiff, and tendered an issue to the country. To which defendant added a similiter.
Chümasero & Eldredge, for Plaintiff in Error.
T. L. Dickey, for Defendant in Error.
Breese, J.
There was no execution set up in this case as a justification for taking the property. The jury weighed the evidence as to plaintiff’s right to the property, and if they believed the witness, they could find as they did.
There is nothing in the action of the court on the instructions, to justify our interference. The case of Wheeler v. McCorristen, ante, decides this case.
The judgment must be affirmed.
Judgment affirmed.