Davis v. Johnson & Co. , 3 Va. 81 ( 1812 )

the following opinion of the court (consisting of Judges Roane, Cabell, and Coulter) was pronounced.

« The Court is of opinion, that the appellant having moved ;he court below to instruct the jury that it lay on the appellees to prove the falsehood of the return meationed in the declaration, as made by the appellant on the J ... execution, when no such return is distinctly stated in such declaration; the said court ought to have declined giving any instruction in pursuance of such request. The Court for the purpose of preventing further litigation in this case) also expresses its opinion to be that, if the return to which the instruction in question was applied, had been that there was no effects with which the debt of the appellees could be satisfied,” “ such instruction was also erroneous; as such return should be so far taken to be true as to throw the burthen of proof on the adverse party : — and, as this instruction (though probably proceeding from the mistake of both the Court and the parties) might have produced injury to the appellant; and as the said judgment for the reasons aforesaid, is erroneousit is considered, that the same be reversed, fkc.; that the verdict be set aside, and a new trial be had, on which the instruction of the Court, if required, must conform to the foregoing opinion.’’