Statement of the case.

The count then averred that this writ was delivered to the sheriff, who arrested Hill, and detained him in his custody for the space of two hours, and until Hill paid the fine imposed upon him by the justice.

The second count alleged the arrest and imprisonment of the plaintiff by the defendant without authority of law.

A demurrer was sustained to the first count. To the second count the defendant pleaded specially, justifying the issuing of the writ, and the arrest and imprisonment under it, averring that while the defendant, as a justice of the peace, was hearing a motion for the continuance of a cause pending before him, and upon announcing his decision upon such motion, the plaintiff, who was acting as one of the attorneys in the case, resisted the said motion in a rude, unmanly and contumacious manner, and continued to resist the motion in a contemptuous manner, after the justice had announced his decision thereof, addressing to the justice improper and profane language, as follows: "You can fine and be damned," and other unbecoming and contemptuous language. A demurrer to this plea was overruled, and the plaintiff electing to stand by his declaration, his suit was dismissed with costs.

The plaintiff thereupon sued out this writ of error, and now insists the ruling of the court upon the demurrer was erroneous. First, because the defendant, though a justice of the peace, had no authority under the law to fine for contempt, unless he was sitting or acting in a judicial capacity as a court at the time the alleged offense arose, and that this fact that he was so acting must appear affirmatively in any justification of the case; and, secondly, even admitting the conviction to be regular, the defendant had no power or authority under the law to issue a warrant of commitment thereon to the sheriff of the county, commanding him to arrest the plaintiff in error, and that when he did so, and an arrest was made in pursuance of that writ, he became a trespasser under the law, for want of jurisdiction of the process used.

Opinion of the Court.

Mr. CHARLES A. HILL, pro se.

Messrs. URI OSGOOD, E. C. FELLOWS, T. L. BRECKENRIDGE and HENRY SNAPP, for the defendant in error.

Mr. JUSTICE LAWRENCE delivered the opinion of the Court:

That the plaintiff in this case, as it is presented by the record, was guilty of contempt in open court, admits of no controversy, and the magistrate would have himself been censurable if he had failed to punish. The use of such indecorous language to a court as is set forth in this record would be inexcusable in any one, and is least excusable in an attorney at law, whose profession should be a sufficient guaranty of respectful deportment to even the humblest judicial tribunal.

The only question in this record admitting of debate is, whether the justice had the power to direct his warrant to the sheriff, and authorize him to make the arrest. Our conclusion is, he had such power. The 207th section of the Criminal Code, Gross' Stat. p. 210, provides that a justice of the peace may issue his warrant directed to all sheriffs, coroners, and constables, for the arrest of any person charged upon oath with the commission of a criminal offense. It thus appears that although, in civil proceedings, a justice must direct his process to a constable, he is not thus restricted. when exercising a criminal jurisdiction. How the warrant shall be addressed in a proceeding of this character is not specially provided by the statute, and we are left to its analogies for guidance. It was held in Clark v. The People, Breese 340, and in Stuart v. The People, 3 Scam. 403, that a proceeding for contempt was in the nature of a criminal proceeding, and such being the fact, we can perceive no reason why the magistrate should not direct his warrant immediately to the sheriff of the county, who, as keeper of the jail would have

Syllabus.

the custody of the offender. There can be no possible objection to such a practice, and there is nothing in the statute conflicting with it, even by remote implication.

52 74 67a 244

52 74 175 210 52 74 a189 4468

CHARLES B. CHANDLER

V.

LUCIUS A. LINCOLN.

1. PLEADING IN REPLEVIN-to authorize a return of the property. In replevin, neither the plea of non cepit nor non detinet denies property in the plaintiff, and though the defendant succeed on either of them, he will not be entitled to a return of the property. To entitle the defendant to a return, he must, by a proper mode of pleading, contest the plaintiff's right. 2. SAME-in what mode the title may be put in issue. The right of the plaintiff can only be put in issue by formally traversing his allegation of title, or by specially pleading that the right of property is in some other person than the plaintiff. If the defendant succeed upon such a state of pleading, he will be entitled to a return of the property.

Where the

3. SAME and herein, of the burden of proof as to title. defendant pleads property in himself or a third person, and traverses the plaintiff's right, the averment of property in the defendant or third person is only inducement to the traverse, and the plaintiff must take issue on the traverse and not on the inducement.

4. Under such a plea, traversing the plaintiff's right, the burden of proof as to the title to the property is upon him.

5. But where the plea is property in the defendant or a third person, without a traverse of the plaintiff's right, it leaves the burden of proof upon the defendant to establish the truth of his plea.

6. PARTNERSHIP-sale of one partner's interest under execution—relations of the purchaser with the other partner. The interest of one partner in the partnership property may be sold under execution against him for his individual debt, and that interest, whatever it may be, will pass to the purchaser, to be held, however, subject to all the rights of the other partner, so that if, upon a settlement of the partnership affairs, the debtor partner

Syllabus. Opinion of the Court.

would have been entitled to nothing had no sale taken place, then the purchaser will take nothing by his purchase.

7. SAME-in what proceedings such rights may be adjusted. But in an action of replevin, where the title of a part of the property, alleged to be in a third person as a partner, is in issue, no settlement could be made between such partner and a purchaser under execution against his co-partner, and an instruction on that subject would be irrelevant.

APPEAL from the Circuit Court of Whiteside county; the Hon. WILLIAM W. HEATON, Judge, presiding.

The opinion states the case.

Messrs. KILGOUR & MANAHAN and Mr. D. P. JONES, for the appellant.

Messrs. SACKETT & MCPHERRAN, for the appellee.

Mr. JUSTICE WALKER delivered the opinion of the Court:

This was an action of replevin for the recovery of a brick kiln supposed to contain two hundred thousand bricks, and a quantity of boards used for the purpose of covering the brick in the yard. Defendant filed pleas of non cepit, non detinet, property in defendant, as to one-eighth of the goods property in Hezekiah Brink, and non cepit as to the other seven-eighths, and an avowry as to one-eighth of the property seized on an execution against Brink, and non cepit as to the other seven-eighths. A demurrer was filed to the second, fourth and fifth pleas. It was overruled as to the second, but sustained as to the fourth and fifth, the last of which was amended, and issues were formed, and a trial was had by the court and a jury, which resulted in a verdict in favor of the defendant. A motion for a new trial was entered and overruled, and judgment rendered on the verdict. The record is brought to this court on appeal, and a reversal is asked.

Opinion of the Court.

The errors assigned question the action of the court below in giving appellee's, and modifying appellant's, instructions. It is first insisted that the modification of appellant's first instruction was erroneous. In this form of action, neither the plea of non cepit nor non detinet denies property in the plaintiff, and if the defendant succeed on either of them, he will not be entitled to a return of the property. If he desire a return of the property, he must contest plaintiff's right. This he may do by formally traversing the plaintiff's allegation of right, or by specially pleading that the right of property is in some other person than the plaintiff. A defendant is bound to take this course before he can contest the plaintiff's right. The object of these averments by defendant is to procure a return of the property, and to impose on the plaintiff the necessity of proving title to sustain his action. These averments, when made, require the plaintiff to prove his title. If the defendant pleads property in himself or a third person, he must, in the same plea, traverse the plaintiff's allegation of title. In such a case, the averment of property in the defendant, or a third person, is only inducement to the traverse of the plaintiff's right, and the plaintiff must take issue on the traverse, and not on the inducement.

On such an issue, the material question in dispute is, the right of the plaintiff to the property. The plaintiff holds the affirmative of the issue, and must sustain his right or fail in his action. What the plaintiff must prove, the defendant may disprove. Anderson v. Talcott, 1 Gilm. 345. It will be observed that to put the plaintiff on proof of his ownership on the trial, the defendant must traverse his right, and when such an issue is formed, it devolves upon the plaintiff to prove it, or fail in his action. Where the plea is property in the defendant or a third person, without a traverse of the plaintiff's right, it leaves the burden of proof upon the defendant to establish the truth of his plea.

In this case, the plea of property in the defendant also traversed the plaintiff's right. This, then, imposed the burden