
    William C. Aylwin, Plaintiff in Error, versus George Ulmer.
    Where the judge instructed the jury that the evidence offered by the plaintiff, from which they might have presumed facts sufficient to justify a verdict for the plaintiff, was wholly insufficient, a new trial was granted.
    Error to the Circuit Court of Common Pleas holden in this county.
    The original action was in case against the defendant, late sheriff of the county of Hancock, for a false return upon an exe [* £3 ] cution. The declaration alleged, that the plaintiff, * Aylwin, having obtained a judgment against one Richard Jaques, for $ 66.51 damages, and $ 10.57 cost, sued out an execution thereon, returnable to the Common Pleas, April term, 1812 ; which execution was in due season delivered to the defendant, then sheriff, for service ; that he returned the same unsatisfied, when, in fact, he had levied upon, and seized, by virtue of said execution, a quantity of boots, to the value of $ 100, of the chattels of the said Jaques, and which he had neglected to sell pursuant to law.
    At the trial, in the Common Pleas, which was had on the general issue of not guilty, the plaintiff proved the judgment and execution, as stated in his declaration ; on which last the defendant had made the following return, namely ; “ Hancock, ss., April 20, 1812. Having made diligent search, and not being able to find property of the within-named Richard Jaques, wherewith to satisfy this execution, by order of the plaintiff I return this execution, in no part satisfied.” The plaintiff also gave in evidence a conversation between the defendant and himself on the 12th of June, 1812, in which the defendant said, that he had in his hands boots to the value of forty dollars, received of the said Jaques, on account of the said execution ; but at what time, or in what manner, he became possessed of that property, the witness did not hear the defendant state. The plaintiff also produced in evidence a letter of the defendant to the plaintiff, dated October 20th, 1812, of the tenor following, namely ; “ Dear Sir,— Having resigned my office of sheriff, T am permitted to finish the business in my hands. I have received of Mr. Jaques a number of pairs of boots to dispose of to satisfy your execution against him ; the boots are trusted out, but, I think, I can collect the pay for him this fal.. If I get the pay, I shall have about eighty dollars. I have not got the execution, as you have not renewed it since I gave it to you last spring. Your attention to forward it to me soon may be the means of your getting your money. — Yours, Geo. Ulmer.”
    
      * Upon this evidence, the Chief Justice of the Common [*24] Pleas instructed the jury that. the same was not, upon the whole case, sufficient in law to maintain the issue for the plaintiff as they must be satisfied that the defendant, by virtue of his office, and pursuant to the command of the execution, did seize personal property of the said Jaques agreeably to the direction of the plaintiff, and then fraudulently or negligently omitted to sell and dispose of the same agreeably to law, or the plaintiff was not entitled to recover. Under these instructions the jury returned a verdict for the defendant The plaintiff thereupon tendered his bill of exceptions to the said directions, which was allowed and sealed.
    The plaintiff in error alleges error in the opinion of the Court, in the verdict, and in the judgment of the Court below.
    Savage, for the plaintiff in error.
    Peabody, for the defendant in error.
   Per Curiam.

The evidence offered at the trial, as it appears by the bill of exceptions, was sufficient for the jury to have founded a presumption upon, that the property, acknowledged by the defendant to be in his possession, was received by him in virtue of the execution which he once had in his hands. It was not, indeed, conclusive evidence of that fact, and it might not have satisfied the jury ; but, as it was matter for their consideration, they ought to have had opportunity to weigh it.

Now the charge of the Chief Justice of the Common Pleas was calculated to make the jury understand that the evidence offered was wholly insufficient. He stated correctly that it was necessary they should be satisfied that the property was so received. But he also stated, that the evidence offered was not sufficient to maintain the action. This was undertaking to judge for the jury, and amounted to a declaration to them, that any consideration of the evidence was wholly unnecessary. They must thus have received the impression, that by law they could not, on that evidence, find a verdict for the plaintiff. And for this cause the judgment must be reversed, and a venire facias de nova awarded.

Qaere, whether the evidence would justify a verdict for the plaintiff?  