October, 1829.—Trespass before Benjamin Johnson, Thomas P. Eskridge, James Woodson Bates, and William Trimble, judges.
TRIMBLE, J., delivered the opinion of the Court.—This is a suit brought by the plaintiff against the defendants, returnable to the October term of this court, 1828. The first count in the declaration is, for breaking and entering the close of the plaintiff; the second is for taking and carrying away the goods of the plaintiff. At the October term, 1828, Lewis, one of the defendants, put in his plea, to which a demurrer was sustained, and he had leave to amend his pleading, and time was given to file his amendment. On the 18th of April, 1829, Lewis amended, by filing three several pleas. The first is the general issue, to which no objection is made. The second is a justification under a judgment, confessed in vacation, under the statute and execution thereon, which judgment was afterwards confirmed in court. The third plea of Lewis is property in himself, as to the negroes in the second count mentioned; and says nothing as to the balance of the goods and chattels charged in that count to have been taken and carried away. At this term the plaintiff, by his attorney, moves the court to strike out the second and third pleas of Lewis. We think this motion must be sustained if the pleas are found to be bad. The second plea justifies under an execution issued on a judgment in vacation, before the same had been confirmed in court. We have heretofore declared, that judgments thus confessed before the clerk in vacation, are not complete until acted upon by the court, and confirmed. Under the statute, (Geyer's Digest, 248, sec. 17, tit. Judicial Proceedings) clerks may sign all confessions of judgments taken in vacation, which in fact is but taking the acknowledgment of the defendant, of record, and it is reserved to the court to give judgment on such confession. No execution could issue until such judgment was rendered by the court, and therefore it appearing by the plea of Lewis, that the execution under which he justified, did issue before judgment was rendered by the court, his plea on that account is bad. The third plea is bad on two grounds: 1. If properly pleaded it would amount to the general issue; and 2, it does not profess,
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