¶1delivered the opinion of the Court.
¶2This was an action of trover against an officer for the wrongful seizure and sale of a mule, in the possession of the defendant in error. Judgment for the plaintiff, and an appeal in error.
¶3*19The ground of defence Is, that the mule was the property of John Smith, son of the plaintiff, and had been fraudulently transferred to the plaintiff to defraud the creditors of the son. The execution and judgment against John Smith, by virtue of which the mule was seized, were not produced on the trial.
¶4In trover, all matters of defence may be given in evidence under the general issue of not guilty, except, perhaps, a release and the statute of limitations. A plea of justification was not necessary, therefore, on the part of the officer; though in trespass it would have been otherwise, under our former system of pleading. But, still, the production of the judgment and execution, as evidence on the trial, was as necessary in the one form of action as in the other, and for the same reason• namely, that as the transfer of the mule was valid, as between the parties, and could only be impeached by creditors of John Smith, it was requisite to produce the judgment and execution, to show that the relation of debtor and creditor .existed between the latter and the plaintiff in the judgment; and also to show the officer’s authority for seizing the property.
¶5But, though the verdict was proper upon the facts before the jury, we think, under all the circumstances, a new trial should have been given, upon terms, for the reason disclosed .in the affidavit of defendants, in connexion with other matters ¡in the record.
¶6The judgment will be reversed, and a new trial awarded, on payment by defendants of all the costs from the return ■term of the summons.