The Opinion of the Court was delivered by
Trespass for taking two steers, two oxen, two ox yokes, and two yearling calves.
Amongst other pleas, Smith pleaded specially, that as to the taking the' two oxen, two ox yokes, and two yearling calves, he was not guilty, and put himself upon the country, and the plaintiff doth likewise; and as to the residue of the supposed trespass, he says that he impleaded Parker in an action of debt for $36 before Alien, which was tried on the 12th day of October, 1841, by a jury, who returned a verdict in his favor for $14T25 cents, and the justice taxed his costs upon the minutes at $19-61i cents, and entered the verdict. That afterwards, on the 8th day of November, 1841, Allen entered up a judgment upon the verdict in favor of Smith, and issued an execution thereon, on the 2nd day of February, 1842, which was levied on the two steers on the 10th day of March, by D. Warren, a constable, and on the same day re-delivered to Parker, and which are the same supposed trespasses.
The plaintiffs, as to so much of the plea as tendered an issue to the country, joined issue; and for replication to the remainder, protesting that Warren did not re-deliver the steers, says, that after the entry of the verdict and taxation of costs by Allen, on the 12th day of October, said Parker and Smith separated, and the proceedings of said justice’s Court were *414then closed, and that the cause was not continued to any future day, and so he says the judgment rendered was so rendered when he was not present, and that he had no notice or knowledge of such proceedings, until the 6th day of February, 1842. To this replication there was a demurrer sustained, and final judgment in bar rendered.
There was a precisely similar plea by Allen, replication by Parker, demurrer and judgment by the Court.
The defendant, Warren, pleaded, that as to the taking of the two oxen, two ox yokes, and two yearling calves, he was not guilty, and put himself upon the country; and as to the residue of the supposed trespass, says, that on the 2nd day of February, 1842, he was an acting constable; that an execution was issued on that day and came into his hands, as such constable, to execute, whereby he was commanded by the people of the State of Illinois, to make of the goods and chattels of the plaintiff, the sum of $14-125 cents, debt, and $19-614 cents costs, which the defendant, Smith, had then lately recovered before E. Z. Allen, one of the justices of the peace of his county, in a certain plea against the plaintiff; and that he should make return thereof to the said justice, within seventy days thereafter. That, by virtue of the said writ, afterwards, on the 6th day of February, and on the 10th day of March, he seized and took one yoke of steers, the residue of the goods in the declaration mentioned, for the purpose of satisfying said execution by sale thereof, and that by the direction of the defendant, Smith, he afterwards delivered the same to the plaintiff, which are the same supposed trespasses.
The plaintiff filed a replication to this plea similar to the others, and averred that Warren knew these facts when he received and levied the execution. A demurrer to this replication was sustained, and judgment upon it in bar.
These several decisions sustaining the demurrer are assigned for error, and also the¡ rendition of final judgment.
We are of opinion, that the pleas set up a good defence in this form of action tobar a recovery as to the matters justified. The justice had jurisdiction of the subject matter of the suit. *415The matters set forth in the replications only show irregularity in the proceedings subsequent to the trial, but which will not make the defendants trespassers. The judgments upon the demurrers in bar of the whole cause of action in the declaration were erroneous. Because the first part of each plea must be taken to be a separate plea of not guilty to a part of the trespass, and in this light it was taken by the plaintiff, for he joined issue thereon to the country; or as introductory to the plea, and to exclude from it, a portion of the trespasses. In this last case, final judgment in bar of the whole cause of action in the declaration ought not to have been rendered upon demurrers arising upon these pleadings to a portion only.
The record before us being but a portion of the whole record, and intended to present the questions arising upon these demurrers only, we cannot tell what other issues may have been raised upon the remainder of the trespasses; nor can we tell, if raised, whether they were disposed of or not. If the remainder of the declaration had been disposed of by other issues, then the Court might have rendered final judgment upon the whole record, after the judgments upon the demurrers.
The law is correctly laid down, as to officers acting under process, in the cases of Jackson v. Hobson, 4 Scam. 411; Parker v. Walrod, 16 Wend. 514; Savacool v. Boughton, 5 do. 170, and Barnes v. Barber, ante 401, decided at this term.
The judgment will be reversed with costs, and the cause remanded with direction to the Circuit Court to proceed to dispose of such issues as have been, or may be made upon the remainder of the trespasses.