Ellis v. Francis

By the Court. Warner, J. delivering the opinion. [1.] The first question made by the record in this case is, -¡whether the return of nulla bona upon the two Justices’ Court fi. Jus. made by Joseph Tarbutton, lawful Constable, is a valid return. It is insisted by the plaintiff in error the return ps not valid, because made by another person for the Constable; that the Constable could not delegate his authority to another to act for [327] him in regard to his official business. The Constable, who was examined as a witness, stated that the entry on the j£. fas. was not in his handwriting, but was made by one of the Justices of the Peace, -in his presence and by his request, he knowing the fact to he true, and that he did not write a good hand himself. We are of the opinion this return on the fi. fas. of “ no property” being made in the presence of the Constable, and by his request, with a personal knowledge of the truth of the return, may be considered as the act of the Constable himself, as much so as if he had held the pen in his own hand, and the Justice of the Peace had directed it in making the entry. [2.] The second ground of error taken is, the refusal of the Court to grant the motion to set aside the verdict, on the ground that the plaintiff in the execution was dead. It was made to appear to the Court, that the plaintiff had been dead four years previous to the trial. The Court refused the motion, unless the claimant would file his affidavit, that he was ignorant of the fact at the time of the trial, which the claimant declined doing, and insisted on his motion to set aside the verdict. This motion, in our judgment, should have been granted, for the reason that the trial was a nullity when one of- the parties was dead and unrepresented before the Court. If the counsel had knowledge of the fact of the death of the party,, and failed to* suggest the same to the Court at the trial, that is a matter for the Court to consider, whether as officers of the Court they acted in good, faith, or intended to practice a fraud upon the Court; but however that may have been, it cannot prevent the verdict from being considered as void in law, and consequently ought to have been set aside. See Tedlie vs. Dill, 3 Kelly, 104. Let the judgment be reversed.