Summary
In Boyd v. State, 2 Tenn. 39, a confession obtained by the promise of the witness to use his endeavors to have the prosecution dropped, was held involuntary.
Summary of this case from State v. WilliamsonOpinion
April 1809.
If the defendant in an execution assign a note to the officer to relieve his property, when the execution had been previously levied and satisfied, he may recover back the amount of the note.
A justice's execution should be returned within the time prescribed by law, but a failure to do so will not vitiate proceedings under it. [So held under 1801, 7, 5, See Kennedy v. Smith, 7 Y. 472. But, now, under 1835, 17, 4, carried into the Code, 3024, the execution, if not returned in the time prescribed, becomes functus officio, Clingman v. Barrett, 6 H. 20.]
BARRY, for plaintiff, and HARRIS, for defendant.
Suit before a single magistrate; appeal to the County Court, and from thence to this court. — The plaintiff owed a person of the name of Norman $10, who obtained a judgment before a justice of the peace. Execution issued; was levied by the defendant, and $9.75 made. The execution issued in September, 1806, and no return was made to the justice till the 15th of January, 1809. It appeared that the defendant made a second levy, but whether for the same debt; whether he had levied by a new execution, or levied by virtue of the old, did not appear, nor was ascertained. To relieve his property from this levy, the defendant assigned a note to the plaintiff. To recover back the amount of the note, this action was brought before a justice.
If the jury should be of opinion that the defendant levied on the same execution a second time, after it had been satisfied by the first levy; and that the plaintiff assigned the note to relieve his property from execution, they ought to give a verdict for the plaintiff. But otherwise, if the plaintiff voluntarily assigned the note, without any restraint whatever. The execution should have been returned within twenty days after it issued, but not returning it in time would not vitiate the proceedings under it. It was not made to appear when the constable levied on and sold the property. The law will presume it was correctly done; that is, before the expiration of the twenty days allowed by law, for the return of the execution.
Verdict for the defendant.