Preston v. Auditor of Public Accounts

PENDLETON, President. The appellant was right in his position, that under the act of 1787, the Court are restrained from giving judgment against the security, until, it is ascertained, that the lands and chattels of the Sheriff are insufficient. He is also right in the assertion, that the return of the execution does not ascertain the fact of insufficiency; since'upon a venditioni exponas the difficulty as to Carson’s title might have been removed; the Sheriff [410] indemnified ‘by the agent of the Commonwealth, or by the secur*ties: or bidders might have purchased Craig’s title, satisfied pf the weakness of Carson’s. We are of opinion, that this execution was admissible evidence; and as such we regard it, in this summary pro-, ceeding, as a record of the Court appealed from, without the form of a certiorari. But, we cannot agree with Mr. Randolph in his position, that this was the only evidence which could be legally admitted, and our rules forbid us to say it is the only evidence, which was in fact given. The act does not confine the proof to the return of the execution or any other kind; but leaves the fact to be established by satisfactory evidence; of which the Court are to judge. In this case, might it not be shewn to the Court, that Carson’s title was clear and indisputable, so as to render a further pursuit against Craig fruitless? This will scarcely be denied; and as it might have been, we are to presume it was proved, or something equally satisfactory. It was the appellant’s fault that he did not appear, and have the whole evidence stated, so as to enable this Court to judge of its sufficiency. It was truly said, that every Court ought to state on record, legal grounds for their judgment; especially subordinate Courts, liable to have their judgments revised in another: And this is done in the present instance. For, the notice compared with the act of Assembly, shews the case to have been brought properly before them, and that their judgment was founded upon its having appeared, that the lands and chattels of Craig were insufficient to satisfy the balance of taxes collected by him for the year 1788, and not paid into the Treasury, so as to bring it within the act, which subjects the securities to such judgment, in that event. How this was made to appear, we are no more at liberty to enquire, than we should be, on an appeal from a general verdict, to examine upon what testimony it was founded. Judgment affirmed.