Andress v. Crawford

GOLDTHWAITE, J. 1. The return to the execution for which the defendants are sought to be charged, and which the verdict has ascertained to be untrue in point of fact, is not of that technical character which prima facie imparts verity. It is rather the assertion of a fact in discharge of the obligation to perform the mandate of the writ. In this view, the decision made in Sutherland v. Cunningham, 1 Stew. 438, has no application, for in most instances of such a return, the creditor has no means in his power to disprove the fact asserted, and if it is to be taken as true until contro 855 verted, he would be entirely remediless. It is questionable whether in strict law such an indorsement is entitled to be considered as a return, as it is said to be a sufficient answer to a return of milla bona, when the defendant has property, that the plaintiff directed a delay. [2 Greenl. Ev. § 593; McClure v. Colclough, 5 Ala. Rep. 65; Shannon v. Clark, 3 Dana, 152.] But however this may be, we consider it clear that whenever the truth of such a return as this is controverted, it rests with the officer to sustain it by proof. This conclusion shows there is no error in the charges given by the court, or in its refusal to give those requested. 2. The other point assumed does not seem to be sustained by the record. The judgment entry recites the principal defendant as receiving the execution as sheriff of Monroe county, and it would be a most forced presumption to conclude that those named as his sureties were so in any other capacity than as sheriff of that particular county. No other defect in the judgment is called to our notice, nor have we been able to perceive any which affects the result. Judgment affirmed.