Hopkins v. Gary

GOLDTHWAITE, J. — We throw aside all the assignments of error in this case, except the last, with the general remark, that they present matters that we cannot revise, whatever may have been their effect upon the case in the Court below. We may regret'the unnecessary prolixity of the judgment entry, but we are not aware that this fault should be visited on a party who seems to have had no agency whatever in making it so. It is possible . too, that the conversation between the counsel on one side and the Court, may have produced some effect on the jury; but were we to reverse causes for such reasons, we fear that oftentimes, the substantial justice of a case would be defeated without any reason whatever. To proceed then to the examination of the only question presented in such a manner as to admit of consideration here. It seems the County Court charged the jury, that the question., whether Gary was sheriff was involved in the issue to be tried by them; and unless this had been proved, that there finding should be for the defendant. It is. difficult to conceive of any state of facts that could be before the jury, under such an issue as this, in which this pro.of would not stand out in bold relief. If the execution was before them, it was probably shown to have been in the defendant’s hands as sheriff; if it was indorsed with the time when received, as required by law, that was proof; if it was returned by him the same conclusion would follow. Easy as the proof was, it nevertheless was a matter embraced in the issue, and if not proved the defendant was entitled to a verdict. That the question of sheriff or no sheriff is embraced in this issue would be evident, if we suppose a suggestion of this kind; or what is really the same thing, an action brought against one who is not, nor never was sheriff, there is no reason to doubt that such a one cannot be charged. Again, let us suppose a sheriff qualified on some particular day, and the attempt is to charge him for not making the money upon an execution against a person who has previously parted with his property; is it not evident that the question then is, whether the sheriff was author [51] ized to act at the time when action could be effectual ? Indeed we can conceive of no suit against a sheriff for negligence, or breach of duty of -any kind, where this question is not necessarily involved. We see enough in this transcript to satisfy us that the Court was not disposed to add an explanation to any charge requested by either party; nor can we say, strictly speaking, that the law imposes any such duty on a Court; generally to speak, a Court is passive and waits to be excited to action by either of the parties; and we are not authorized to infer, either in this or any other case, that a'general charge, strictly correct by itself, would not have been modified to suit the particular circumstances if a request had been made. If there was any fact before the jury which established that Gary was sheriff, nothing was more easy than to request instructions as to its effect as proof. In the condition in which this case is, it is possible that injustice has been done, but we are not authorized to infer this from the mere fact, that a general charge, unexceptionable in point of law has not been explained or exemplified by the «Court of its own mere motion. Let the judgment be affirmed.