delivered the opinion of the court.

This was an action in the nature of replevin for the seal of Cape Girardeau County Court, a book called a “fee-book,” a Webster’s Dictionary, a German-English Dictionary, and a lot of revenue stamps of the value of thirty dollars.

The defendant by answer denied all the allegations of the petition, and then for further answer alleged, that the court had no jurisdiction, because the eounty seal and “ fee-book ” referred to had been delivered to the defendant under and by virtue of a writ, or warrant, issued by the judge of the Cape Girardeau Circuit Court, and that he held them under such delivery, and in no other manner. This writ is copied into the answer and recites, that the plaintiff was former clerk of the County Court of Cape Girardeau county, but had been removed from office by virtue of a judgment and conviction for misdemeanor in office, rendered against him in the Circuit Court at its May term, 1872.

The writ further recites; that the defendant had been appointed and commissioned by the Governor of Missouri, on the 5th day of December, 1872, as clerNof said County Court; that he had accepted the office, and given bond to perform the duties; and it is also recited, that the plaintiff had failed and refused to deliver to the defendant the records, books, papers, archives and appurtenances of the office. The writ then commanded the sheriff, to whom it was directed, to seize the books, records, &c., aforesaid, and deliver the same to the defendant.

This portion of the answer setting up this writ as a justification, or rather as a plea to the jurisdiction of the court, was stricken out on motion of the plaintiff, and the only question raised by the record is, whether this ruling of the court was right.

The answer contains no affirmative allegations, that the defendant was the clerk of the County Court, nor does it con*546tain any affirmative allegation, that the plaintiff had been removed from office by the judgment of the Circuit Court, on being convicted of a misdemeanor in office. Without such affirmative allegations, that portion of the answer presented no defense. The writ itself and the recitals formed no defense whatever to this action.

If the officer, who served the writ, had been sued in trespass, the writ might have been a justification for him ; but the defendant cannot rely upon the writ alone. He must allege and prove affirmatively, independent of the recitals, the authority of the judge to issue the writ. If-this had been done, I think the defense would have constituted not a plea to the jurisdiction of the court, but a bar to the plaintiff’s action as to the seal and “ fee-book.”

The law authorizes the Circuit Court judge to issue such a writ on affidavit. (2 W. S., 1136, § 5.)

The act of issuing the writ is simply ministerial and not judicial. It is a summary mode provided to return, the records &c., belonging to an officer, to their proper custody.

The issuing of the writ, and its service, determines no right to the property or to its custody. It leaves the parties to all of their remedies in the premises, as they existed before the. issue of the writ. It is urged by the learned counsel for the respondent, that the statute, authorizing this summary proceeding, is unconstitutional and void, because it is not due process within the meaning of the bill of rights. It does not deprive the party of his property, but places it in the custody of the law, where it is presumed to belong, until the contrary appears. It is the nature of a writ of replevin giving the custody of the property to the officer, without requiring him to execute a bond for its return, and leaves the claimant to his action for its recovery, or such other remedy as the law gives him. But under the view I take, the defense was not properly pleaded.

Judgment affirmed.