Fitler v. Patton , 8 Watts & Serg. 455 ( 1844 )


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  • The opinion of the Court was delivered by

    Kennedy, J.

    The third error assigned is the only one which requires special notice; for as to the remaining errors, that is, the first, second, fourth and fifth, it is sufficient to say that we think .there is nothing in them.

    The question presented by the third error is, whether in an action of trespass against a sheriff for taking and selling the goods of the defendant, named in a writ of fieri facias, placed in his hands some days before the return thereof, it ought to be presumed that the seizure of the goods was made before the writ became returnable, in the absence of testimony showing when it was made, but evidence given showing that the sale was made two months after the return day mentioned in the writ. The point submitted by the counsel of the defendant below, out of which *458this question arises, is in the following terms: “That if the jury believe that a levy was made under the writ of execution, the presumption is that it was made in proper time; and in the absence of testimony to the contrary, the jury should so find.” This instruction, however, the court refused to give. The point would seem to have arisen very fairly in the cause, which made it the duty of the court, upon request, to instruct the jury in regard to it.. From the evidence given it did not appear when the .seizure of the goods sold by the sheriff was made. For aught that was shown, it might have been either before or after the return day mentioned in the writ. This being the case, it was very important to the defendant to have a proper direction from the court to.the jury on this point, which would have gone far towards acquitting him of the trespass complained of by the plaintiff below. For it is a well settled rule of law, that where any act is required to be done by any one, and especially by an officer, within a limited time, which were he not to perform as required, would render him guilty of a criminal neglect of duty, the law will presume that it was done rightly, and will throw the burthen of proving the contrary on the other side. Monke v. Butler, (1 Rolle’s Rep. 83); Bull. N. P. 298; Williams v. The East India Company, (3 East 199). Accordingly, in an information against Lord Halifax for refusing to deliver up the rolls of the auditor of the Exchequer, the Court of Exchequer put the plaintiff upon proving that he did not deliver them; for, as it was said, a person shall be presumed duly to execute his office till (he contrary appear. Bull. N. P. 298; Best on Presumptive Evidence, p. 63, pl. 57. So in Hartwell v. Root, (19 Johns. 345), the very point raised here was decided in favour of the sheriff, who had sold a pair of horses in the month of May under a writ of fieri facias returnable on the third Tuesday of February preceding, alleging that he had made the seizure of the horses before the return day of the writ, leaving them in the possession of the defendant named therein, who afterwards sold them to the plaintiff, from whom the sheriff took and sold them again. It did not appear on the trial when the horses had been first seized by the sheriff, whether before or after the return day mentioned in the writ; whereupon the court held that he was entitled to the benefit of the presumption that the levy was legally made. See also Powell v. Milburn, (3 Wilson 362); 2 Black. 852-3; King v. Hawkins, (10 East 216).

    In the course of the argument the return of the sheriff to the writ of fieri facias in this case was objected to as being altogether too general and loose to furnish any justification for his taking and selling the goods of the defendant named in the writ. It is not requisite, however, that the sheriff should specify in his return the particular goods taken, and the sum for which each article has been sold. It is sufficient to make the return in general terms, as for example, that he has levied a certain sum of money, naming it, *459out of the goods of the defendant. And accordingly the court in Willett v. Sparrow, (6 Taunt. 576), refused to grant a rule upon the sheriff to amend his return, by particularly specifying the goods which he had taken'under the writ of fieri facias, whereon he had returned merely an aggregate sum exceeding £600, made of the goods of the defendant. Neither is it necessary that the time of the seizure by virtue of the fieri facias should be mentioned in the sheriff’s return thereof; and indeed it is seldom if ever made, as may be seen by a reference to Impey’s Sheriff and Coroner 350, where the forms of general returns to such writ are given. See also Sewell’s Sheriff, 392-3-4 and 5, of the Appendix. The sheriff is not even obliged to make a return to a writ of fieri facias, unless ruled to do so, which rule may be obtained by either party; for it is a sufficient justification to him in an action of trespass for taking the defendant’s goods, to plead that he took them by virtue of the fieri facias directed to him, without showing it returned. Watson’s Sheriff 143. And if he does make a return, it is sufficient to endorse on the writ, which is most generally all that is done, “ I have levied and made of the goods and chattels of the within named C. D. deceased, in the hands of A. B., executor within mentioned, to the value of £50, which money I have ready. The answer of-Nigh Sheriff”

    Judgment reversed, and a venire de novo awarded.

Document Info

Citation Numbers: 8 Watts & Serg. 455

Judges: Kennedy

Filed Date: 12/15/1844

Precedential Status: Precedential

Modified Date: 2/18/2022