Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-01-30

ecutor, that the SOD of Robt. Newton had
told him the plaiutiii' IN error had sent for
his brother to attack him, is, upon the
plainest principles Of law, incompetent tes-
timony, and falls within the rule OF hear
say evidence. The son Of Robt. Newton
was a competent witness, and should have
been introduced. His declarations were
not evidence. Roscoe's Grim. Evidence,
p. p.
No particular exceptions were taken TO
the charge Of the court in this cause.
The evidence is vOluminOus and very /
conflicting, and, as the case will undergo /
another investigation before jury, we for |
bear any comments upon the facts. Other |
questions have been presented in the argu- |
ment which, in the view we have taken OF
the case, It is unnecessary now TO deter
mine. The judgment must be reversed and
new trial awarded.
SHAcKELFoRD, Judge.
z. II. Hoq5a, et a. Is. EtCin, PeHdietOn q Co.
l. MorIoN: The statute laws governing mo-
tions against public officers On theiE enelal
| bonds being in der0gation Of the common law
must be construed strictly.
az SAM: Failure, in the motion, 10 embrace
/ al the securities Is error
This is a Judgment BY motion against
constable and two of his securities in his
| official bond. for his default, and falling TO
return an execution within the time pre-
scribed by law. The motion was originally
| instituted. under proper notice, before a
| Justice Of the Peace, Of Wilson county,
who gave Judgment against the constable
| and two Of his securities, for S406 81. From
/ this Judgment the plaintiff in error APP
| pealed to the Circuit Court, when the cause
| was again tried with a similar result and
/ an appeal in error prosecuted 10 this court.
! All the facts necessary TO sustain the
| judgment appeas in the record, and are re-
/ cited with formal particularly in the
| judgment itself, except one, and that is IA
| tai. There is a variance between the de-
| PENDANTS ia the Judgment and the parties
| 10 the bond SET out in the record. The
Judgment Is against the constable, and n.
| Walsh and g. Ozment, and the bond is exc
| cuied BY 4. NJ. Hearn, X. p. Donnell, n.
| Walsh and C. Cement. This is error. The
motion given by the statute carries with il
the right 10 move against the officers and the
securities on his official bond, or other
bond executed in the discharge Of the par
| ticular duty-Code 1854 This form of
judgment by motion being in derogation Of
the common Law must be taken strictly.
And as a consequence Of this rule, says
| Judge Turley, in the case Of Rice, ct al, "a.
| Kirkman, HUMPHREYS 4l5 il has always
been held that statute giving a remedy by
motion, has no latitude Of construction.
The statute gives Judgment on motion
| against the officer and his securities. If
the Judgment be taken against less than
| the number Of the securities, are the terms
Of the statute complied with Is it against
his securities? Surely not. A Judgment
is given on motion against two, upon what
| principle shall you have it against one?
| If il be done, il must be by construction,
and that a very dangerous construction.
The record discloses 10 reason why all
the securities were not embraced in this
motion. It's, however, stated in argument,
that Donnell is dead, and if so the remedy
is complete against the surviving securities.
| But the record must show that fact TO sus-
tain the judgment against the plaintiff in
/ error. In all other respects there is no
error in the record and from a view Of the
whole case, we think the omission to move
against all the securities on the bond, or to
show in the record that the one omitted was
dead, if such be the fact, was an oversight
without culpable omission, and we there
fore reverse the judgment and remand
[ The cause for further proceedings.
MILLIGAN.