Evans v. Benton

19 Ky. 389, 3 T.B. Mon. 389, 1826 Ky. LEXIS 81

• Court: Court of Appeals of Kentucky
• Decided: December 18, 1826
• Status: Published

Opinion

Judge Mills

delivered the Opinion of the Court.

This is a writ of error to. reverse a decree in chaneery, perpetuating an injunction, and decreeing the restoration of a sum of money. The decree was rendered on taking the bill pro confesso after order of publication returned against the defendant below as a non resident.

The following certificate, annexed to a ropy of the order of publication, is the.only evidence that the publication was ever made.

*•Farmer’s Chronicle Office.

I certify that the annexed advertisement of Jesse Benton, against Elisha Evans, has been published for two months successively, in the- Farmer’s Gimmick:, commencing April 29th 1325. expiring June 29th 1825. Given under my hand dm 2d dav of July, 1825, Joseph Turner”^

Mandate, Gafter ion for plaintiff; Turner for defendant.

This certificate is too defective, to warrant tlie decree. Foripcrly, such proof was made by affidavit, and now the legislature has allowed the bare certifícate of the editor or publisher of the paper to be sufficient, and be may certify the fact, as an officer may do in many cases.

it is true, that this court will take judicial notice that certain persons are officers of Government, even when the name of office is not inserted in their official acts.

But it would certainly be extending this principio very far, to say that a court should judicially know who is editor of a public print, which is a bare employment or calling, and not an office It is therefore essential that the certificate should shew on its face, that, it is made by the editor, who conducts the paper. It docs not appear from this certificate, that; the editor had any hand in, making it,, or that it was not made by some other person in the office.

The decree for this defect, must’ be reversed-with, costs, and the cau.se he remanded for new proceedings, commencing with the proof of the order of publication.