McMullen v. Goodman , 23 Tenn. 239 ( 1843 )

Turley, J.

delivered the opinion of the court.

This is a case of a motion against a constable for the non-return of an execution made before a justice of the peace of Stewart county. The notice is for not returning an execution against James Lowry. Upon the trial, the judgment and execution were both introduced in evidence; from which it appeared that the judgment had been rendered against James Lowry as principal, and was staid by Almon Lowry, and that execu-tion had been issued against both James Lowry and Almon Lowry. "Judgment was given against the constable McMullen, who. appealed to the Circuit Court, where the question was whether the execution should be read; which was permitted to be done, and an appeal is thereupon prosecuted to this court.

The judgment and execution upon which the motion was founded were read in the Circuit Court, and are made a part of the record by the bill of exceptions. The same question which was made in the Circuit Court is again made here; that is, whether the reading of the execution should have been prohibited because the notice was for the non-return of an execution against James Lowry, and the execution was against James and Almon Lowry.

We think it would be to stick in the bark to hold that it should.

The execution was certainly against James Lowry, and in that particular complies with the notice; but it is also against Almon Lowry the stayor. Does this necessarily make it a different paper? It might be a misdescription of it, were it declared upon, and therefore fatal; but the same certainty has never been required in proof as in pleading.

Plaintiff in error had notice and made defence before the justice and in the Circuit Court, and we must affirm the judgment.