Sias v. Badger

Up ham, J. The statute, regulating the sale of goods, taken by virtue of an execution, renders it the duty of the officer to make a return of the execution, with his doings thereon, particularly describing the goods and chattels taken, and the sum for which each article was sold. And when his proceedings are regularly set forth, in compliance with the statute, and the execution is duly returned, the return is evidence of the doings of the officer, even in his own favor. 3 Starkie’s Evi. 1358; 3 Mass. Rep. 487, Livermore v. Bagley; 7 Cowen, 310; 2 N. H. Rep. 391. And in such case, neither trover nor trespass, for taking the goods, can be maintained by showing the return false, but the remedy is an action for the false return. 3 Mass. 513. The regular course for a sheriff, who has sold goods under an execution, is, to make a return of his doings to the Court from which the execution issued. But it is not uncommon with officers, in particular if the execution is [395] not satisfied in full, to deliver the execution and return to the creditor or his attorney. If any suit is brought for taking the goods, the execution is sent to the clerk and copies of the execution and return are pro* uted, untl these are the proper evidence of what was clone by the officer. In this case the executions and returns are traced into the hands of the agent of the plaintiff', and cannot be found. The case also finds that due notice had been served on the plaintiff to produce said executions, on the trial of this case, which he has failed to do, and the defendant moves for leave to introduce parol evidence to show that returns had been regularly made on the executions, of the property attached, and the proceeds applied in payment of them. It would be very rigid law, in such a case, to prohibit the defendant from proving the regularity of his proceedings by the only mode which the plaintiff lias left in his power. The rule laid down by the judge who tried the cause seems to us to be much more reasonable. As the proper evidence of the proceedings of the officer had either been lost by the plaintiff, or his agent, or were withheld by them, it is but just, under the circumstances, to permit such secondary proof of the regularity of his proceedings as he may be able to make, and did the circumstances of the case require it, the Court would not hesitate to presume the proceedings to have been regular until the plaintiff should show’ the contrary. Judgment on the verdict.