Clark v. Pearson

Trippe, Judge.

The recovery was had ou the demise of Jonathan Pearson. The motion for a new trial is on the ground that Pearson was dead at the time of trial, and that the fact was not known to the defendant until afterwards. The question in the case is, was there such proof of the identity of Jonathan Pearson, the plaintiff, with the one proven to be dead, as to entitle the movant to a new trial, or to set aside the verdict. The deed introduced by plaintiff below from the drawer to Jonathan Pearson, describes Pearson as residing in Wilkinson county, in 1826. It is true, that the affidavit of Holland does not state that the Jonathan Pearson he knew resided in Wilkinson county. But he does say that he died in 1839 or 1840, and his affidavit was made in Wilkinson. Then comes the record of the court of ordinary of Wilkinson county, showing that administration was granted on 2d March, 1840, on the estate of Jonathan Pearson, late of said county, deceased. Here there was identity of name and residence, and where such proof was not answered by the plaintiff or those who were using his name, the force of it was greatly strengthened. If the real Jonathan Pearson, in whose name the recovery was had, was living, it was a matter of easy proof, at' least,'by himself or his counsel, or those who used his name to assert their rights. A judgment cannot be rendered in the name of a deceased person without representation. We think, without any counter-proof, the testimony was prima facie sufficient: See 5 Cowan, 237; 9 Ibid., 140; 13 Johns., 518; 4 Doug., 33; 9 M. and W., 75; 4 T. R., 28; 2 Green. Ev., section 278. We.are, therefore, of opinion that the new trial should have been granted.

Judgment reversed.