
    SWINGLE vs. ABRAHAM BOYLER.
    Declaration in these words.
    
    John Swingle by his attorney complains of Abraham Boyler, late sheriff of Carter county, in the district aforesaid in custody, &c. in a plea of trespass on the case, for that whereas the said defendant at the several times herein after mentioned, and for a long and since, was sheriff of said county of Carter; and so being sheriff a writ of fi. fa. issued on the third day of November, 1802, from the court of pleas and quarter sessions for said county of Carter, on a judgment recovered in said court at August term, 1802, by a certain John Rhea, against said plaintiff for §234 43 damages and nine dollars seven cents and five mills costs, which was delivered to said defendant on the 10th day of December, in the year aforesaid, to execute as sheriff of said county, and collect said sums of money so recovered for damages and costs; and said plaintiff avers, that at the time said writ was so delivered, and at the time of the levy herein after mentioned, and for a long time before and since he was possessed in his own right of goods and chattles in said county of Carter, sufficient to make said sums of money so recovered for damages, and costs; and said plaintiff avers, that at the time said writ was so delivered, and at the time of the levy herein after mentio
      ned, and for a long time before and since, he was possessed in his own right, of goods and chattles in said county of Carter, sufficient to make said sum of money so recovered for damages, and costs, to wit: horses, cattle, hogs, household furniture, bariron, smith tools, carpenters tools, &c. of which said defendant then and at the time of levying herein aftermentioned, there, to wit: in said county, had notice; nevertheless said defendant well knowing the premises, but contriving and maliciously intending to defraud, oppress, and injure said plaintiff, and to cause him to be ousted of the lands and tenements herein after mentioned, and forever deprived of the profits thereof, afterwards to wit: on the 19th day of January, 1803, levied said writ of fi. fa. on the following tracts or parcels of land, in said county of Carter, to wit: 200 acres on Indian creek, and three tracts of 100 acres each, adjoining said 200 acres on Indian creek, and waters of Nolichucky River, including a forge and bloomery, gristmill, sawmill, works for cutting nails, smith shop, dwelling house, and other buildings of the value of $10,000. One equal and undivided moiety of which, said plaintiff was seized and possessed of in his own right in fee; and afterwards, to wit: on the; day of in the last mentioned year, at said county of Carter, said defendant in pursuance of his said fraudulent and malicous intention, sold said several tracts of land making together 500 acres, by virtue of a pluries writ of venditioni exponas, issued on said judgment from said county court of Carter, on the 8th day of Sept. in the last mentioned year, to a certain Charles Whitson for 170 dollars, and the said plaintiff has since, to wit: on the day of March, 1806, been dispossessed of his said moiety of said several tracts of land and premises, and deprived of the profits and emoluments thereof, by due course of law; in consequence of said levy and sale to the damage of said plaintiff $5000, and thereupon he brings suit, and there are pledges to prosecute, &c.
    
      In an action against a Sheriff for selling real property to satisfy an execution when personal property could have been had, it is incumbent on the plaintiff to shew,that he had personal property known to the sheriff on which he could have levied.
    
      Whiteside for plaintiff.
    And the defefendant by his attorney comes and defends the force and injury when and where, &c. and for plea, saith, he is not guilty, in manner and form as said plaintiff in his said declaration hath alledged, and of this he puts himself upon the country.
    Williams and Kennedy, for defendant,
    And the plaintiff likewise. Whiteside.
    The evidence was, that upon a fi. fa. previous to Rhea’s, the sheriff made return that he had levied upon a waggon, and two oxen but not delivered, and that the property was proved away by a man of the name of Pickens, that the plaintiff and Pickens were concerned in the Iron Works, which had been sold; that the personal property at the Iron Works consisted of some oxen,an old waggon, some smithstools, some hogs, two cows, and a feather bed or two; but none of the witnesses could tell, whether one or both the Swingles, being brothers, or Pickens owned the property. It was alternately claimed by these persons.
    By several witnesses it appeared, that when the execution was levied the plaintiff was much straightened in his circumstances. Before this levy, personal property could not be found to satisfy several executions; it appeared from the testimony of the clerk of the court that by virtue of a fi. fa. which issued previous to the venditioni exponas, upon which the land was sold, the sheriff levied upon two oxen which Pickens swore to, as his property, and which were given up to him.
   Per Curiam,

To sustain this action it is necessary for the plaintiff to support the following positions, 1st, That there was personal property on which the levy could have been made. 2d. That it was known to the sheriff, and 3d, that it was accessible to the sheriff.

The anus probandi lies on the plaintiff.() The sheriffs return is evidence of the levy, but not as to the property being proved away.

Where the plaintiff makes the necessary proof, the law will intend that the levying upon real property, when personal could be had, was done maliciously. But the law authorises the levying upon real property as well as personal at the same time, though the personal property must be first sold.

Verdict for the defendant. 
      
      Hardin 362 11 East 297 3 Binn. 35. 3 Mass 379
     