Nicholas v. Lansdale , 16 Ky. 21 ( 1805 )

Opinion of the Court, by

Ch. J. Muter.

THE proof made before the general court as to the death of the plaintiff, was a report that a certain Smith Nicholas, of the family of the late George Nicholas, deceased, had departed this life at the Island of Madagascar, and the court say it strongly appeared, and was not absolutely denied, that the Smith Nicholas, of the state of Tennessee, is the same Smith Nicholas who sometime since sailed from the port of Baltimore to some part of the East-Indies, and, by common report, died on his return at the Island of Madagascar, previous to issuing the execution which was quashed.

The first question which presents itself, is, was this proof sufficient to quash the execution? If the plaintiff was of the family of the late George Nicholas, proof of a mere report, or a common report, was not the best evidence which the nature of the case admitted of, and which was in the party’s power to have procured; because, by procuring the testimony of his relations in Baltimore, nay, even in this country, the fact might have been rendered more certain than it was by mere report, and upon this ground the court erred in quashing the execution. But it is not shown that the plaintiff is of that family; and the report, even if that was more certain, of the death of that Smith Nicholas, unless it was also made to appear that he was the plaintiff in this suit, ought not to have produced a quashal of the execution. This proceeding, not affecting the merits, and calculated only to produce delay, presumptions ought not to be made to support it.

Judgment reversed with costs, and order to proceed with the execution.