Anderson v. Bowling

1 Thompson 60

Opinion

An officer justified on trial of an action of trover under an execution issued by a justice of the peace more than thirty days before the levy; The Court below charged that it would not protect him.

Heiskell for the plaintiff below, cited Clingman v. Barret 6 Humph. 21, and Rogers v. Hunter, M. S. Knoxville, 1849

(2) Judgment affirmed. (3)

Mr. Heiskell’s M. S. report of the case of Rogers v. Hunter consists of the following oral dicta by McKinney, J.

“A judgment by confession before a justice of the peace must show . in whose favor it is rendered, and if it do not, it is void and cannot be admitted in evidence to justify a defendant acting under it in trespass; and an execution issued upon it, though it might protect an officer acting under it and defending alone, could not avail him when defending jointly with the plaintiff in the judgment.

The doctrine that a justice execution after thirty days' is functus offi-cio and void, is affirmed.

Evidence of a right of property in a third person is not admissible as a defense to an action of trespass brought by the party from whose possession the property is taken.”

See Shell v. Huddleston, 2 Tenn. 39. And see the Code, 3024, 3025. And see Clingman v. Barrett, 6 Humph. 20.