Carter v. Stanfield

By the Court. Warner, J. delivering the opinion. This case came before the Court below, on a certiorari from a Justice’s Court. Two grounds of error were specified in the petition for certiorari — First, that the Jury in the Justice’s Court ought not to have found the property subject to the executions, under the evidence before them ; and, secondly, that the oath administered to the Jury, by the Justice, was illegal, and not the oath required’ by the Statute. [1.] The claimant introduced his bill of sale for the cattle, from the defendant in execution. The plaintiff proved, that the property claimed had been in the possession of the defendant in execution, from the lime of the execution of the bill of sale to the claimant, up to the time of the levy of the executions thereon. In Peck vs. Land, (2 Kelly, 1,) this Court held, that the possession of the property remaining in the vendor, after an absolute sale, was prima facie evidence of fraud, but subject to explanation. Here,, the possession was unexplained, and the Jury rightly found the property subject to the execution. [2.] The oath administered to the Jury, by the Justice, was the same as administered to a Special Jury in the Superior Court. By the 9th section of the Act of 1811, prescribing the form of the oath to be administered to the Jury in a Justice’s Court, for the trial of the right of property, the same oath is required as that administered to- Special Jurors in the Superior Court. [51] Prince, 505: As to tbe form of tbe oath administered to Special Jurors, see Prince, 437. The Jury found the property subject to the execution, and ten per cent, damages. The plaintiff in execution remitted the damages, and the Court below dismissed the certiorari, and we affirm the judgment of-the Court below-