State ex rel. McMahan v. Rollins
THE STATE, to the use of McMahan & Huston v. ROLLINS
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NAPTON, J.
W.e think the instruction given hy the court was correct. A sheriff has the whole period-of the running of the writ within which to execute it, and if it is executed by the return day it is sufficient. This we understand to be the general and usual duty of the officer. There may be circumstances, however, under which he would not be justified in postponing for a day the levy of his writ. The condition of things may be such as to require immediate steps on the part of the officer to make the process available. The case of Douglass v. Baker, 9 Mo. R. 41, was an instance of this character. There, the plaintiff in the execution, which was a capias, pointed out the defendant and required the officer to arrest him. So in any case, I apprehend, where the plaintiff will show property to the officer liable to the -writ, and there is a propriety or necessity for an immediate levy, a failure of the officer to comply with such directions would be proof of negligence and hold him responsible for its consequences. In this case the plaintiff offered no such proof. On the contrary, the defendants offered to prove that Dale was not within the county or within reach of the officer prior to the 20th June, when the application for the benefit of the Bankrupt act was made. This proof was not admitted, doubtless upon the idea that the burthen of proving the negligence devolved upon the plaintiff. Had the proof been allowed, I do not think its introduction would at all have conflicted with the return, or with the principle adopted by this court in Boone County v. Lowry, 9 Mo. R. 23. That was a case where a sheriff returned a levy and a rescue, and finding that the rescue would not relieve him from responsibility, he offered to prove that the property he had levied on did not belong to the defendant in the execution. Such proof, to say the least, would operate as a surprise upon the plaintiff. He might bo expected to prepare for disproving a rescue or for denying its validity as a defense, if proved, but he could not anticipate the new ground for the first time assumed on the trial. The new defense contradicted his return, which admitted the goods levied on to have been the property of the defendant in the execution.
The case of Boone County v. Lowry was no doubt siricti juris ; but its hardship arose from the retention of the ancient severity of the law which regulated the responsibility of sheriffs. The theory of the common law, upon which this strictness against rescues depended, that the officer could always prevent a rescue by exercising the power with which he was invested over the posse comitatus, is á mere theory in this age and in this country. To practice it in all cases might lead to lamentable consequences, and in our sparse population it may in truth be justly regarded impracticable. The law in this respect might be advantageously changed; but the court could not relieve against its hardship. The rule in Boone County v. Lowry, if applied to a different set of circumstances, would be highly equitable in its operations.
The evidence offered by the defendant in the present ease did not conflict with nor contradict the return ; it tended to establish its sufficiency, or rather to fill up a hiatus in the defense left by the return itself. The defendant, it will be observed, was not sued for an insufficient return, but for a failure to levy.. The failure was admitted; but the excuse was that the defendant in the execution was a bankrupt, and this excuse was set up in the return."* 'This excuse might or might not constitute a full answer to the charge, according to circumstances, and the defendant, after proving the existence of the bankruptcy, proposed to go further and show circumstances, which, under the most harsh construction of the law, would totally exonerate him. I confess my impression is that the defendant might haye completed his defense in this ■way.
This matter is, however, immaterial. The evidence offered was excluded, and as it was excluded at the plaintiff’s instance, he of course cannot object. The instruction stands upon the maxim of law that an officer is presumed to' have done his duty until the contrary appears. The defendant had proved the bankruptcy; but the bankruptcy did not cover the entire period from the issuance of the writ until its return. There were two months during which the •sheriff might have been required to execute the writ. The instruction assumed the law to be, that the sheriff had until the return day to execute his writ, and. *129 nothing appearing to the contrary, the presumption ’would he that no negligence had occurred up to the day When the defendant in the execution protected himself from arrest by his petition to the bankrupt court. If there were any special circumstances to show a dereliction of duty on the part of the sheriff, it devolved upon the plaintiff to show them. Had the court admitted the testimony offered by the defendant, the result would have been the same, the plaintiff declining to offer any evidence. .
The objection to the records of the District 'Court in the bankruptcy case is not material in any point of view. Ho objection was made to the authentication of the record, but merely to its incompleteness. The,only object of the record was to show the time when the application was made, and this was shown as well by a record obtained before the proceedings were completed as afterwards. The record was complete in fact. It purported to give a full record of everything which had transpired in the court up to its date, and it was of no consequence in this case that the record was procured before the final judgment of the court. But the certificate of discharge itself showed the date of the application, and the record was therefore useless, and its admission or exclusion could have been of no consequence in the case. The other Judges concurring, the judgment is affirmed.
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