
    Osborne vs. The State.
    It is not necessary to prove by the justice who issued an execution, that he in fact issued it; it is competent to prove that fact by other testimony.
    This is an indictment charging the plaintiff in error with having extortiously, and by color of his office of constable, received from Robert G. Cummings fifty cents, as a levying fee, due to him upon an execution which he had against the goods and chattels of said Cummings, when in truth and in fact he never levied such execution, and no fee therefor was due him.
    On the trial of the cause, the defendant produced in evidence the execution, but the court would not permit it to be read until it was proved by the justice of the peace who issued it.
    
      The jury found the defendant guilty. A new trial was asked for and refused, and the defendant appealed to this C0U1-t- " '
    
      j. Campbell, for plaintiff in error.
    
      .Geo. S. Yerger, Attorney General, for the State.
   GREEN, J.

delivered the opinion of the court.

•The court erred iii refusing to permit the execution to .be read_, unless proved by the justice who issued it Although it was right in the court to require proof that the paper offered was genuine, and was really issued -by the justice, yet it was competent to prove that fact by.other testimony than by the justice himself.

Where a justice’s execution has beén returned to him, the .usual practice is to prove its genuineness-by.him. He is certainly in such case the most convenient witness, as in order to get the execution a subpoena must be served on him to produce it. But when the execution is still in the hands of the constable, it would be often inconvenient, and sometimes impossible, to obtain the evidence of the justice, and there is no reason why the proof may not be made by other witnesses.

Let the .judgment be reversed, and the cause be remanded to the circuit court of Rutherford for a new trial to be .had therein-.

judgment reversed.  