Hartwell v. Root

Woodworth, J. delivered the opinion of the Court. The question in this cause, is, whether it is not to be presumed, that the defendant made a levy on the property of ConkUng? The Court below decided, that the matters given in evidence were not sufficient to bar the plaintiff’s action. The officer acted under his oath of office. His duty required him to make a levy; and it does not appear that ConkUng had any other property, beside the horses, to satisfy- the execution. In such a case, in the absence of positive proof, and against a public officer, the circumstances offered a fair and reasonable presumption, that a levy had been legally made. The general rule is, that when a person is required to do a certain act, the omission of which would make him guilty of a culpable neglect of duty, it ought to be intended, that he has duly performed it, unless the contrary be shown. (3 East, 192. 10 East, 216. Phil. Ev. 151.) In an information against Lord Halifax, for refusing to deliver up the rolls of the Exchequer, the prosecutor was required to prove the negative, that he did not deliver them up. (Peake’s Evid. 5. Buller’s N. P. 298. 3 East, 192. 3 Wils. 362. 2 Blacks. Rep. 852.) In Jackson v. Shafer, (11 Johns. Rep. 517.) the sheriff sold land, and executed a deed. The defendant contended, that the sale was void, because it was not shown that there was a previous levy. The Court said, “ it no where appears there has not been a levy, and, if it were necessary, thejr would, under the circumstances of the case, presume it to have been done.” [348] The case of Bliss v. Ball, (9 Johns. Rep. 132.) relied oti by the defendant in error, is not analogous. In that case, the execution had lain a year in the sheriff’s hands; the property was sold, by the defendant in execution, to a bona fide purchaser. The sheriff delayed selling on the execution, because he was instructed that a compromise was pending. After the year, however, he proceeded to sell; and it was held, that an execution, lying dormant for a year, and without evidence of an actual levy, was sufficient for third persons to presume it satisfied, unless knowledge of an actual seizure was brought home to the purchaser. The fact that the execution was dormant, was sufficient for the bona fide purchaser. This case does not depend on the general right of the sheriff to retake the goods of the debtor, removed after he receives the execution, and before the return day. Here, Conkling had possession until after the return day; any notification, even to his wife, of a levy, would have been sufficient. (17 Johns. Rep. 116. 128.) A sheriff is not bound, at his peril, to have proof of a levy, in a case like this, when the person who must be presumed to have done his duty, is sued, and cannot be heard as a witness. Judgment reversed.