Osborne v. State , 17 Tenn. 488 ( 1836 )

GREEN, J.

delivered the opinion of the court.

•The court erred iii refusing to permit the execution to .be read_, unless proved by the justice who issued it Although it was right in the court to require proof that the paper offered was genuine, and was really issued -by the justice, yet it was competent to prove that fact by.other testimony than by the justice himself.

Where a justice’s execution has beén returned to him, the .usual practice is to prove its genuineness-by.him. He is certainly in such case the most convenient witness, as in order to get the execution a subpoena must be served on him to produce it. But when the execution is still in the hands of the constable, it would be often inconvenient, and sometimes impossible, to obtain the evidence of the justice, and there is no reason why the proof may not be made by other witnesses.

Let the .judgment be reversed, and the cause be remanded to the circuit court of Rutherford for a new trial to be .had therein-.

judgment reversed.