
    *Davis v. Johnson & Company.
    Argued, Friday, December 20, 1811.
    i. Sheriff — Failure to Levy — Action on Case — Instructions.  — In an action on the case, against a Sheriff, for failing to levy an execution, if the return on the execution was “that there were no effects with which the debt could be satisfied,” the burthen is thrown on the plaintiff of proving the falsehood of such return; and the Court, if requested in a proper manner, ought so to instruct the jury. But if the defendant request the Court to instruct the jury, “that it is incumbent on the plaintiff to prove the falsehood of the return mentioned in the declaration;” and no return be distinctly stated therein: the court ought to decline giving any instruction in pursuance of such request.
    This was an action on the case in the Fredericksburg District court on behalf of Richard Johnson and James Young, merchants and partners, trading under the firm and style of Richard Johnson & Company, against Isaac Davis, late Sheriff of Orange County, for misconduct in office, in refusing and neglecting to levy a writ of fiefi facias, in favour of the plaintiffs, against a certain Benjamin Hyde, which lawfully came to his hands to be executed; the plaintiff averring that, “at the time of the delivery of the said writ of fieri facias to the said defendant, and afterwards, and before the return of that writ, that is to say, on the day of , the said Benjamin had divers goods and chattels, within the bailiwick .of the said declaration, of which he might have made and levied the debt, interest and costs aforesaid, as he was by the said writ commanded, to wit, at Orange County aforesaid; of which the defendant then and there had notice.” The defendant did not expressly state, whether any, or what, return was made on the writ of fieri facias.
    Plea “not guilty,” and issue.
    On the trial of the cause, the defendant moved the court to instruct the jury, “that it lay on the plaintiffs to prove the falsehood of the return mentioned in the declaration as made by the defendant, on the plaintiff’s execution against Benjamin Hyde, as therein set out. The Court instructed the jury that it lay on the defendant to prove the truth of the said return.” The defendant excepted to that opinion, and (a verdict and judgment having been rendered against him) appealed to this court.
    
      
      See monographic note on “Sheriffs and Constables” appended to Goode v. Galt, Gilm. 152; mono-graphic note on “Instructions” appended to Womack v. Circle, 29 Gratt. 192.
    
   Tuesday, February 11, 1812, the following opinion of the court (consisting of JUDGES ROANE, CABEEE, and COAL-TER,) was pronounced.

*"The Court is of opinion, that the appellant having moved the court below to instruct the jury that it lay on the appellees to prove the falsehood of the return mentioned in the declaration, as made by the appellant on the appellee’s 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 erroneous; — it is considered, that the same be reversed, &c.; 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.”  