Riciotto

Appeal from judgment and order refusing a new trial.

This is an action of claim and delivery to recover possession of two horses, which plaintiff alleges defendant “ still unlawfully withholds and detains.”

The pleadings were verified, and the defendant, in his answer, denies that he “ unlawfully withholds or detains or detained said goods and chattels.” For a further and separate defense he admits the taking, and attempts to justify, as constable, under a writ of attachment against one Smith, as whose property they were taken. He avers that judgment passed against Smith in the attachment suit, and the goods were taken by him as constable, under an execution issued upon the judgment, and were sold by virtue of the writ, June 6, 1889. This suit was commenced June 19, 1889, which was after the goods had passed out of the possession of defendant.

The plaintiff, testifying on the trial, states, in effect, that the goods had been sold and delivered before suit was commenced; but his attorney here contends that as the answer admits that defendant still detains the goods, such evidence cannot be noticed.

But, as we have seen, the defendant shows in the affirmative allegations that he…