Browning v. Hanford — 7 Hill & Den. 120

Majority

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Browning and others vs. Hanford, sheriff, &c.

Headnote

A sheriff’s return to a fi. fa., setting forth a valid excuse for not having sold and collected the money, e. g., that the goods seized under it were casually destroyed by fire, is prima facie evidence of the fact even in his own favor.

So of a return showing that the sheriff was prevented from executing the fi. fa. by the service of a judge’s order to stay proceedings.

This case was before the court in October, 1843, and is reported in 5 Hill, 588 . It was re-tried in May, 1844, before Whiting, 0. Judge, when the plaintiff objected, among other things, that the matters stated in the return to the fi. fa., relating to the service of the order to stay proceedings, and the casual destruction of the goods by fire, (see 5 Hill, 589 ,) were not evidence in favor of the defendant. The circuit judge held otherwise, and the jury found a verdict against the plaintiff, who now moved for a new trial on a case.

D. B. Prosser, for the plaintiff,

insisted that the parts of the return objected to on the trial were unauthorized, and should not have been allowed as evidences He cited and commented on Bruce v. Dyall, (5 Monr. Rep. 125, 6;) The Governor v. Bell, ( 3 Murph. Rep. 331 ;) First v. Miller, ( 4 Bibb, 311 ;) Cowen & Hill’s Notes to Phill. Ev. pp. 157, 1046, 1083, 4 ; Archb. Pl. & Ev. 395.

H. Welles 6p F. M. Haight, for the defendant.

By the Court,

When this case was formerly before us, we held that the destruction of the goods by fire, under the circumstances stated in the return, constituted a good defence to the action. ( 5 Hill, 588 .) Whether the return was competent evidence of the fact in favor of the sheriff, was not then made a question, but has been on the second trial.

The return of a sheriff is nothing more nor less than his answer .under oath respecting the duty enjoined upon him by the

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writ; and is intended to inform the court of what has been done in the promises. It usually concludes the parties in the same action in which it is made; out in another action, or in one against the sheriff, it is only prima fade evidence, and may be contradicted. (Dalton, 189, 190; Vin. Ab. tit. Return, (O) pl. 25, 47; Watson On Sheriffs, 72, 73; 11 East, 297.) If it embraces matters not pertaining to the duties which the writ commands, that is, not touching the things which the officer is required to do in executing the process, it is thus far made without the sanction of the sheriff’s official oath, and must be treated-like the unsworn declaration of a private individual.

A return to a fi. fa., showing that it has been executed, is of course always pertinent to the duty enjoined upon the officer. And any legal and valid excuse for not executing the writ, such as nulla bona, want of bidders, and the like, is equally pertinent and appropriate by way of return. In Gyfford v. Woodgate, (11 East, 296,) the action was for maliciously suing out a second fi. fa., after sufficient goods had been levied on under the first to satisfy the debt. Aiid the return of the sheriff) stating that he had forborne to sell under the first writ, and had sold under the second, at the instance and with the consent of the plaintiff, was held prima fade evidence of such consent.

I am therefore of opinion that the return in this case, setting up the casual destruction of the goods levied 'on by fire, was prima fade evidence of the fact in favor of the defendant; and that the plaintiff could not recover without disproving it.

The general doctrine adverted to covers also that part of the return which sets up the service of the order to stay all proceedings on the fi. fa. But if it were necessary to go further, cases may be found quite decisive of the particular question. In Clegkorn v. Des Anges, (3 J. B. Moore, 83,) it was held, that a return of supersedeas to a fi. fa., by the defendant’s suing out a writ of error in due time, was appropriate and pertinent.

(See also Watson On Sheriffs, Append. 371.) So in respect to process against the person, a return that the defendant has been discharged on habeas corpus is good. (Vin. Ab. tit. Return, (L) pl. 22; Watson On Sheriffs, Append. 371.)

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I think the case was properly disposed of at the circuit, and that a new trial should be denied.

Ordered accordingly.