Case v. Hall

Breese, J. There are two manifest objections to the third plea. The first is, the defendant does not allege he was duly elected and qualified to the office under which he justifies the trespass. The rule is, where an officer himself attempts to justify his acts done by virtue of his office, he must allege and prove himself an officer de jure. Schlenker v. Risley, 3 Scam. R. 483. We know of no different rule anywhere, and the reason is, that being the party exercising the office, his right to do so or the evidence of it, is in his own possession and power. The next objection is, that the plea nowhere alleges that the hogs were running at large by sufferance of the owner. This is indispensable. The ordinance provides that it shall not be lawful to suffer any swine to run at large. That they were at •large contrary to the ordinance as in the plea, is not equivalent to an allegation that the owner suffered them to run at large. This knowledge and sufferance is the gist of the offense. The penalty is not to be enforced because the hogs were running at large, but because the owner suffered them to run at large. As to the other question made, that the act is unconstitutional, see King et al. v. The Town of Jacksonville, 2 Scam. R. 305. The judgment of the court below is affirmed. Judgment affirmed.