Harrison v. Thompson

By the Court. Warner J. delivering the opinion. [1.] The first error assigned upon the record is, that the Court below refused to grant the motion to have the execution entered satisfied, unless the entries thereon by the Sheriff were explained. It appears by the returns of the Sheriff on the fi. fa. that property of the defendant has been sold, and the proceeds of the sale more than sufficient to have paid it off. The property, sold under the levy of 29th March, 1842, brought $56 50, and the Sheriff returns that the whole amount was taken “for costs on this and other fi. fas.” The levy of 27th September, 1842, was sold for $106 00, and the whole amount, according to the return of the Sheriff, was taken for costs. In accounting for the proceeds of the first levy, the Sheriff returns, that the whole amount thereof was taken “ for costs on this and other fi. fasf but what other fi. fas. does not appear. In accounting for the proceeds of the second levy, the Sheriff returns, that the $106 00 was taken for costs. What costs ? When the property of a defendant is seized and sold by the Sheriff, under judicial process, he has a right to know what has been done with the proceeds of such sale. If applied to the satisfaction of other fi. fas. he is entitled to know what particular fi. fas. If applied [313] to the payment of costs, he is entitled to know what costs, and to have the particular items of costs specified in the Sheriff’s return. Here is an execution for less than one hundred dollars, including principal, interest and costs, by virtue of which one hundred and sixty-two dollars and fifty cents has been raised by the sale of the defendant’s property, and the whole amount been applied, according to the returns of the Sheriff, to the payment of costs, without specifying what particular items of costs, or to what particular f. fas. if any, the costs have been paid. According to the record before us, the Court refused the motion to have the execution entered satisfied, holding the returns of the Sheriff to be legal and proper, until the defendant disproved them. We are of the opinion that the returns of the Sheriff, as the same appear on the record, were neither legal nor proper, for the reasons already stated. Besides, it would have been extremely difficult for the defendant to have proved a negative. It was the duty of the Sheriff to have shown, by his returns, the specific appropriation of the money to the payment of costs. [2.] The second assignment of error is, to the charge of the Court to the Jury. The Court charged the Jury, “ that the return of the Sheriff was legal and proper, and unless the defendant disproved tire return that costs were due, as claimed by the Sheriff', for keeping the cattle, &c. that the Jury must find for the plaintiff, and that he was equally entitled to the costs, whether he kept the cattle himself or procured an agent to keep them for him.” The Sheriff’s returns do not show .that any costs were charged for keeping cattle, nor does it appear from Ihe record that there was any evidence before the Jury that the Sheriff kept any cattle of the defendant, for which he was entitled to charge costs, either by himself or agent. The charge of the Court appears to have been predicated on an assumed state of facts not proved before the Jury, and, therefore, as we have frequently held, erroneous. Let the judgment of the Court below be reversed.