To sustain this action it is necessary for the plaintiff to support the following positions, 1st, That there was personal property on which the levy could have been made. 2d. That it was known to the sheriff, and 3d, that it was accessible to the sheriff.

The anus probandi lies on the plaintiff.(*) The sheriffs return is evidence of the levy, but not as to the property being proved away.

Where the plaintiff makes the necessary proof, the law will intend that the levying upon real property, when personal could be had, was done malici*229ously. But the law authorises the levying upon real property as well as personal at the same time, though the personal property must be first sold.

Verdict for the defendant.