
    Evans vs Davis, &c.
    Error to the Greenup Circuit.
    Trespass.
    
      Case 94.
    
      April 27.
    The ease stated.
    Pleadings.
    
      Sheriff’s return. Justification. Levy of execution.
    
   Judge Beeck

delivered the opinion of the Court.

This was an action of trespass brought by Evans against the defendants, Davis and Cbilderston, for taking and leading away a,stallion, called Timoleon, the property of Evans, together with a leathern halter.

Davis plead and justified the taking under two executions in his hands as a deputy Sheriff, one in favor of Beaty and the other of Bradshaw, and both against Evans; that before the sale of the property under the executions, as was intended, the horse died, and without fault on the part of him, the said Davis; that after the horse died, Beaty stayed his execution, and the halter was tendered to Evans, which he refused to receive. The taking was justified under both and each of the executions.

Childerston plead and relied on same matter set up in the pleas of Davis, and that he acted under his authority as Sheriff,

Verdict &e.

The prosf in the cause.

Instructions refused to plaintiffs.

Instructions given for defendant.

The jury found for the defendants, and Evans prosecutes this writ of error.

The executions bear date the 15th July, 1841, and were made returnable in September following.

On the execution of Beaty, Davis returned, that it came to hand on 15th July, 1841, and not executed, according to order of plaintiff. Upon the execution of Bradshaw, he returned, came to hand 15th July, 1841, and levied upon and sold one bay mare on three months credit, and balance replevied.

It appears the horse was taken by Davis and Childerston on the 10th August, 1841, and died on the 1-9th or 20th same month. That suitable and particular attention was paid to him by the defendants.

Several witnesses prove that they saw advertisements upon the Clerk’s office or Court house, for the sale of the horse, &c. to satisfy the execution of Beaty, &c. and -signed- by Davis as deputy Sheriff. Testimony was also adduced, conducing to prove the other matters relied upon in the pleas. It was admitted that Chiliderston was the •assignor of Bradshaw, upon the note, upon which the judgment was rendered, on which the execution in his name issued.

The only questions for consideration are, whether the •Court, under such a state of the evidence, correctly ex. pounded the lavy.

The Court refused, on motion of plaintiff, to instruct the jury that the return of Davis, upon the executions, was conclusive as to him, and that from the evidence, both the defendants were not justified in taking the horse and halter.

On motion of defendants the Court gave these instructions: That if they believed from the evidence, that Davis levied both or either of the executions upon the horse and halter, they must find for them.

2ndly. That Davis having the execution in his hands, the horse and halter in his possession, and the advertisements of them for sale under one or both of the executions, if they believed these facts to be proved, were sufficient evidence that he had levied said executions, or one of them, upon the horse and halter.

Sheriffs as a general rule, not'permitled to contradict their own. returns, but may prove facts dehors their returns not inconsistent therewith.

If property be sold under execution, in the absence of a return that it was levied on, the law .presumes a levy.

To what extent the return of a Sheriff is conclusive upon him, does not appear to be very definitely settled. That'he should be estopped from controverting facts embraced in his return, and which were within the sphere and connected with the discharge of his duty, as a general rule, must certainly be admitted. But although he would not be permitted to controvert his official return, may he not be permitted to prove facts dehors the return in relation to his action under the execution, and which do not conflict, but are consistent with it? If he has not returned every thing he has done under an execution, may he not, by parol, supply the omission? A Sheriff returns an execution executed, and is sued as a trespasser, would he be precluded by his. return from showing that the trespass complained of was the sale of property legally made under such execution? We think not. Sheriffs, for their own security, ought to return the truth or facts of the case; but the rule would be rigorous and oppressive to confine them exclusively, in all cases, to the facts set forth in their return. In this case the Court permitted the Sheriff, in his justification, to prove other facts than those set forth in his return, but which are not contradicted by it. He proves that he had the executions ; that he took the property publicly, advertised it for sale, put it into the possession of an horse-keeper, and advised Evans,, the defendant in the execution, of the fact, and invited him to give a delivery bond for it. There is no testimony or circumstance in the case, tending, in the slightest degree, to prove that the Sheriff took the property in any other way, or for any other purpose than under the executions, or that his conduct was arbitrary in the taking, or improper in the disposition of it. Courts have long since recognized the policy and the justice of indulging in presumptions in favor of Sheriffs and other public officers having done their duty. Authority in support of the doctrine. is abundant.

Property is sold under execution, and in the absence of any return that it was levied upon, the law presumes a levy: (11 Johnson, 515, and 19 Johnson, 347.)

With the executions in the hands of the Sheriff, and in the absence of all testimony to the contrary, the law not only presumes but makes the taking in this case a levy. To constitute if such, does not depend upon the use of the term itself. If then the property was levied on, the plaintiff could not maintain this action, and the instruction on that point was correct, as settled in Lovier vs Gilpin, (6 Dana, 321.)

Hord, Owsley fy Goodloe for plaintiff: Beatty, Paynefy Waller for defendants.

In view of the whole case, we are of opinion the Court did not err in permitting the testimony to go to the jury, and that fhe law was correctly expounded in reference to its effect.

The judgment is, therefore, affirmed.  