
    Hyskill against Givin.
    In Error.
    
      Monday, October 22.
    ÉRROR to the Court of Common Pleas of Hunting- ■ » ° don county* '
    . . . . . . Patrick Givin, the plaintiff below, brought this, suit against George Hy skill, before á justice of the peace, to recover fifty dollars and interest, for the price of a tract of latid sold by t ' , 4 » him under an execution as Sheriff of the county, to George Hyskill, the highest and best bidder therefor.. TVipro «rae “ere was an appeal to the Court'below, from the judgment of the ticé. On the trial, after proving the judgment at the suit of ‘ 
      Michael Wallace against ‘Evans and Dorsey, on which the execution issued, the plaintiff gave in evidence a fieri facias issued to April Term, 1816,'and returned, levied, inter .alia, on a tract in. the name of .Mordecai Massey, containing 300 acres, more' or.lqss ; and a condemnation of the same. He also-gave in evidence a venditioni exponas.lo April Term, 1818, to which there Was a return made by.himself, as Sheriff,- “ Sold the tract in the name of Mordecai Massey to George Hyskill on the 18th March', for fifty dollar's.’’ The plaintiff further produced in evidence a deed from him to the defendant for-this tract, acknowledged-in open Court on the 1.8th April, 1818, which, it was proved, Was tendered to the defendant previous to the commencement of this suit. The defendant produced no evidence, and the Court charged the jury as follows. 1‘ The Sheriff here is not suing to put money in his pocket; he is suing in his 'official capacity to recover th,e price of this land* for the pláintiff in the suit on .which it was sold. In an.action of trespass, the,Sheriff’s return is given in evidence-to defend him. It may, in some cases, be disproved, but it is evidence for. him. So, in an indictment against him. Here it has been read without, objection, and unless disproved, is1 sufficient in connection with the acknowledgment of the deed, to prove a sale to George Hyskill; It is said, there must be proof that there is in existence such a tract of land. We are of- opinion, that after a le,vy and inquisition and sale, it is to be taken that there is such a tract of land, and that the purchaser, if he allegés the whole to be a fraudulent sale of what does not exist, must give evidence thereof.” To this charge the defendant excepted'. The jury-found a verdict for the plaintiff. '
    
      In action by < ne, as Sheriff, to recover the purchase money of land soidat She-[i^úrn^f sudr Sheriffis/mojia facie eviderice to prove thaithe de" fen(|anl wa3
    A levy andsheriff^ deed describing the land as ^ tract in the name of A. B., containing 300 acres more or. less,” is sufficiently certain in the absence of extrinsic proof. > 5
    
      
      Shippeh, for the plaintiff in error, contended,
    1. That there was no evidence that the defendant' had made the contract, except the return of the plaintiff, which was not sufficient., 2. Thére was no such land in existence, as that alleged to have been sold : and the deed contains no sufficient description of the land ; and cited Dolan v. Briggs, .4 Binn. 498. 3 Caines, 68.. 2 fohns. 259. 2 Caines, 61. 13 Johns. SSI. -. •• '•
    
      Burnside, contra,
    cited the Act of ¡ 705,.1 Sin. L. 57. 18 Fin. 173. Phillipsv. Hyde, 1 Dali. 439. Cro. Eliz. 872. 2 Mod. 10.
   Gibson J.

delivered the opinion of the Court.

The question is, whether the return of a Sheriff is evidence, in his own favour, of the fart stated ; ior if competent,,it made out the plaintiff’s case, and justified the Court in charging that he was entitled to recover ih 'the absence of contradictory proof. There is ho rule better established, than'that such return is prima facie evidence in an, action between third persons ;• because it is the-official act of a n»an ■acting under oath. I see no reason to draw a distinction, where it is offered by the Sheriff himself. It is not, as in ordinary cases, the man’s oWn act,’which may, at the time, have been done with a.view to his interest, but official; and therefore the act of the law, performed under the' sanction of an qath,.and at a time when it cannot be presumed the officer anticipated the existence of a law suit which should implicate him personally. Precisely for the same reason, a conviction by a justice of the peace, having jurisdiction, is evidence in his own favour, in an action against him for false imprisonment. Phill. JEv. 260. The only difference is, that the conviction is conclusive ; but that is because it is.a judicial determination of the fact: the act of the Sheriff is only ministerial. The argument ab inconvenienti, deserves but little consideration. It is said that to require the person implicated as th'e purchaser, to produce rebutting evidence, would be to require him to prove a.negative ; a matter attended with more than ordinary difficulty in cases of Sheriff’s sale, where -the business is transacted with celerity, amidst confusion, and where-a nod.of the head or any other signal equally inexplicit and subject to misconstruction, is taken fora.bid ; and hence it is argued, that to receive the return as prima facie evidence, would subject everyone present, to the Sheriff’s' mistakes, and the consequent'risque of being involved in ruinous speculations without any means of extrication. Experience however proves, that these mistakes seldom,.if ever, occur ; and if they even'should, it is almost •impossible that the attention of the other- bidders, usually alive to every thing passing, should not enable them to testify to the true state of the facts. ,The jury would have to consider of all the circumstances, and might require but slight proof to counterbalance the return. Here the special •circumstances of the sale, were facts proper to be returned by the Sheriff, and there is therefore no error on .the ground of the first exception.

It is objected that the description of the land in the deed tendered, is too loose to attach it to any particular tract. The deed itself has not been produced; but it is to be presumed the description was taken from the levy which, inter alia, was: “on a- tract in the name1 of, .Mordecui Massey, containing 300 acres more or less.’* This, on its face, is reásonably certain, and could be rendered otherwise only by the existence of extrinsic circumstances, which did notappéar.' If but one tract in the bounty were located in the name of Massey, there could be no difficulty : if more than one, the subject of the grant would have to be-ascertained ■ by extrinsic evidence, as in every other case of lateht ambiguity.. These levies are much more loose, and uncertain than convenience requires,’ or safety can justify ; but, as many titles depend on them, it is now too.late to scrutinise ’them very strictly. The judgment is affirmed.

• Judgment affirmed. , ,  