
    Topper against Taylor and others.
    
      Monday, September 25.
    under the 6th section of the act of 1705, “ for taking óu”fon fotAhe «Not it is unnecesmlraHfados, of the act.
    cessVr/diaT” levan facias that he had given the notice required by law of the pj^a“dsale. nor is ¡tne- ’ cessaryforthe party who in-upon the validity ofsuch asale, to S,®that*due uSseri-’ a“ presumption
    In Error.
    EJECTMENT in the Common Pleas of Westmoreland County. J
    
    After the plaintiff, John Topper, had shewn a regular title to the land in dispute, the defendants gave in evidence, a mortgage on the premises, given by John Topper and wife, to one Dewalt Macklin, dated 24th September, 1802 ; the cord of a proceeding by scire facias on the mortgage to September Term, 1806; and a levari facias to June Term, 1807, on which the sheriff returned, “ Not sold, for want of buyers.” They then offered in evidence, an alias levari facias in the same suit, to September Term, 1807 ; a pluries levari facias to MarchTerm, 1808 ; a sale under it, to Joseph Weigley, and a deed from the sheriff to Weigley, dated 28th June, 1808; together with proof that his title was now vested in the defendants, or those under whom they held possession.
    To the admission of this testimony the plaintiff objected, but the Court permitted it to be given.
    The counsel for the plaintiff having requested the , , . , . . f , , r , to charge the jury that it was incumbent on the defendants to prove, that the sheriff had given the notice required by law, of the time, and place of sale, and that the return should have stated that such notice had been given, the President delivered his opinion, “ that no proof of hotice of the sale by the sheriff was requisite; that the legal presumption was, that the officer did the duty required him, unless the contrary were proved, nor was it necessary that the return of the sheriff should contain a statement, that the notice required by law, of the time and place of sale, had been given.”
    On the argument in this Court, Alexander, for the plaintiff in error,
    took two exceptions to the proceedings under which the defendants made title.
    
      1. That a levari facias having been returned, “ Not sold, for want of buyers,” a liberari facias should have issued, and not an alias levari facias. The act of 1705,
      
       had given a new remedy for the recovery of a mortgage debt, and its directions ought to have been strictly pursued.
    The Court here intimating, that the construction under the act of 1705, had been to take an alias levari facias, if the plaintiff chose it, Mr. Alexander said, he should not attempt to disturb that practice, if, in. the Court’s opinion, such had been the ancient construction.
    2. The act of 1705, directs notice to be given, of the time and place of sale. There ought therefore, to have been proof, that the sale was advertised according to law, and the sheriff’s return ought to have averred such advertisement. The 7th section of the act of 26th March, 1785, the object of which was to cure defects in former proceedings, and among others, the want of proof that due and legal notice of sale had been given, points out the necessity of adhering to that course in future cases.
    The Court here also, intimated their opinion, that the charge of the President of the Court of Common Pleas was right; on which, Mr. Alexander said, he should urge it no further; one of the objects of the writ of error, being to have the law settled.
    
      A. W. Foster and Forward,, for the defendants in error.
    
      
       1 Sm. L. 59.
    
    
      
       2 Sm. L. 301.
    
   Per Curiam.

The sheriff’s deed in this case asserts, by way of recital, that he had given due and legal notice of the sale, by advertisement, &c. When the law directs the sheriff to give notice of the sale, it is presumed that he performed his duty. But this presumption may be rebutted by evidence to the contrary. When such evidence is produced, as renders it probable that notice was not given, the burthen of proving the notice, is thrown upon the person who claims under the deed. This has been the construction and general practice under the act of assembly. It is the opinion of the Court, therefore, that the judgment of the Court of Common Pleas should be affirmed.

Judgment affirmed.  