majority">Scott, Judge,

delivered the opinion of the court.

As this case was a suit against a constable for serving process in an attachment suit, the record of that suit was certainly evidence for him, as it did not appear upon its face to be a nullity, and as no specific objection was made to its introduction. If the plaintiff contemplated assailing the prima facie case made by the record for the defendant, the proper time for that would have been after the record was received. The record was evidence for the officer for some purposes, and being so, it was proper to receive it. Had it contained any thing *265objectionable, tbe other party should have moved the court to exclude it from the consideration of the jury. This is the invariable rule in all such cases. As the plaintiff took a non-suit merely because the record was received in evidence, when there was nothing showing that it was inadmissible, there was no ground for setting it aside.

The case of Markham v. Dozier & Pancost, (12 Mo. 288,) in which it was held, that a boat could not be sold under an execution issued by a justice of the peace, under the act concerning boats and vessels, is not applicable to the case under consideration. That case was under the statute concerning boats and vessels. The sale made here was under the attachment law. Under that law, perishable property attached by process may be sold by an order of a justice of the peace. The property sold in this suit was a wood-boat. Though justices have a power of sale, they should exercise a sound discretion, and not order a.sale where the debt is small and the attached property such as it must be all sold together, and greatly exceeds in value the debt. The justice should always be satisfied that it would be for the interest of the debtor to have his property sold, and should not listen to the too often interested suggestions of a constable. We perceive no irregularity in the constable’s sale. There was an application for the sale and an order thereon made by the justice, under which the constable proceeded in the conduct of the sale. The judgment is afBrmed ;

the other judges concurring.

Citation profile

Relationships

How this case has been treated — in progress