State ex rel. Gardiner v. Keech ( 1861 )

Tuck, J.,

delivered the opinion of this court.

At the trial below, after the plaintiff had established a prima facie case, under the Act of 1842, ch. 283, the defendant, to show that his intestate had been prevented from collecting the claims in his hands for the use of the plaintiff, offered to prove, by the docket entries of the justice before whom the judgments were rendered, and by the evidence of the justice himself, that the judgments had been superseded within the time limited by law, so that writs of fieri facias could not be sued out thereon, there being no evidence that any supersedeas had been signed by the parties, as required by the Act of Assembly. And he also offered, “in connection with the above mentioned entries,” in order to show that the claims mentioned in the constable’s receipt had been attached, certain other entries from the docket of the justice, and proved by the justice himself, purporting to be two judgments of condemnation, rendered upon attachments against the debtor of the present plaintiff at the suit of creditors of Duvall, to whom the receipt in this case was given by Turner, as constable, “whereupon the plaintiff objected to the admissibility of said entries, as evidence, to show that the defendant’s intestate had performed his duty as constable, or that the claims had been attached, or for the purpose of discharging the said defendant from liability in this case, but the court overruled said objections, and allowed said docket entries to be read to the jury, in connection with the receipt offered in evidence by the plaintiff, to show that the defendant’s intestate had performed Ins duties, as constable, in the premises, and therefore the defendant was not liable in this action.” The plaintiff excepted to the ruling of the court, “permitting the said entries to be read in evidence, for the purpose aforesaid,” but no exception was taken to the ruling that, “the defendant was not liable.”

We are of opinion that the evidence of the supersedeas was properly admitted. The Act of Assembly does not contemplate that the constable shall be liable, if the justice of the peace takes a supersedeas which is invalid; that would be to make him responsible for (he ignorance or mistake, or neglect of another, over whose- official conduct he has no control, and to charge the sureties in his bond for the misconduct of one, for whose performance of duty they had not undertaken. When informed by the justice that a judgment has been superseded, the officer has no right to demand an inspection of his proceedings; without which their legality cannot be determined. The argument, on the part of the appellant, would apply, with equal propriety, to a defective injunction or certiorari, which writs are likewise mentioned in the Act as defences to actions of this kind, but we suppose that such process would arrest execution of the judgment, no matter how irregular or insufficient it might be, provided the court had jurisdiction in the premises.

(Decided January 23rd, 1861.)

As this portion of the evidence was an answer to the plaintiff’s case, we need not pass upon the propriety of admitting proof of the attachments.

Judgment affirmed.