7 Blackf. 549 | Ind. | 1845
— Case by Buchanan, administrator of Topley Gaunt, deceased, against Murray, commenced before a justice of the peace. The plaintiff, in his cause of action, alleges that Gaunt, in his lifetime, recovered a judgment against one Harlan before the defendant, who was' a justice of the peace, and caused an execution of fi. fa. to issue on the judgment; that before the execution was levied, and before the return-day, Gaunt died, whereupon the defendant ordered the constable to return the execution, and it was returned accordingly; that at the time of such order, Harlan had sufficient property to pay the debt, but that he has since become insolvent, and is wholly unable to pay the same; wherefore, &c. Plea, the general issue. Judgment for the plaintiff.
It is questionable, whether the plaintiff could have supported an action, at common law, for the injury set forth in his statement, when the plea was -not guilty; but we believe it is now settled, that for any description of injury to the personal property of the deceased, whereby it is rendered less beneficial to the executor or administrator, done even before administration of the personal estate is granted, he may recover for the injury, notwithstanding the action is in form ex delicto. 1 Chitt. PI. 79.
On the trial of the cause, Wm. G. Johnson testified that he was the defendant’s successor, and that he had possession of his docket and papers. The witness then read from the docket, that had been kept by the defendant, an entry of a judgment in favour of Gaunt against Harlan, corresponding to that set out in the statement of the plaintiff’s cause of action. tie also proved by an entry on the docket, that an execution had issued on the judgment. The constable, to whom the writ had been delivered, proved that he had returned it in obedience to the orders of Murray. James R. Slack was then sworn, who stated that at or about the time this suit was tried before the justice, he made diligent search for the execution, and that it could not be found. He also stated that Johnson had searched with him. The plaintiff’ thereupon offered to prove, by secondary evidence, the contents of the writ, to which the defendant-objected, on the ground that the loss of the paper had not been satisfactorily established, but the Court overruled the objection and-permitted the contents to be proved.
Where a paper, the contents of which are necessary to be used on a trial, is lost or destroyed, the fact that the paper' once existed must be proved; and if positive proof of the destruction cannot be had, it must be shown that a bona fide and diligent search has been made for it in vain, where it was likely to be found. 12 Johns. 192. 16 id. 193. And, in general, the loss of it must be proved by the person in whose hands it was at the time of the loss, or to whose cus
We do not decide at this time whether the constable, who returned the execution, as he says, in obedience to the order of the justice, should have beén excluded as a witness for the plaintiff, on account of his supposed interest in the event of the suit. No objection was made to his admissibility in the Court below, and the point therefore is not fairly before us.
— The judgment is reversed with costs. Cause remanded, &c.