Barney v. Weeks

delivejed the opinion of the Court. — It seems, that the defendant, being sheriff of the county ofFranklin, was, by the writ of attachment, which appears in this case, “commanded to attach the goods, chattels, or estate, of Enoch Sawyet, of St. Al-bans, to the value of twenty dollars, and him notify thereof according^ law ; and for want thereof, take his body &c.” The defendant, by his deputy, served the writ, and made his return, that he attached all the hay, grain, oats and peas, in the barn on the *148premises where the defendant lived j also that he did this by the direction of the plaintiff. By this return the defendants estopped from saying there was no hay, grain, oats, or peas in the barn. The return shows there was some of each. And as the command in the writ was to attach to the value oj twenty dollars, the presumption is, that the officer did his duty, and the articles attached were of that value. I consider, the command in the writ and officer’s return are prima facie evidence, that hay, grain, oats and peas were attached of the value of twenty dollars. To vary this, the burthen of proof was on the defendant. He might show, that the plaintiff directed him to attach the articles, and that their value was much less than twenty dollars. But it is doubtful whether the officer’s return, that he was directed by the plaintiff to make the attachment, is proper evidence of the fact. The officer may certify his own doings, by which he is bound ; but it is doubtful, whether he can make evidence for himself by certifying the doings of the plaintiff. But, if we admit he could do it, there was no evidence given by the defendant tending to show, that the articles attached were of less value than twenty dollars. So, the prima facie evidence of the plaintiff, that the articles attached were of that value, has not been overcome by the defendant.

It was the duty of the defendant, as sheriff, to have held the hay, grain, oats, and peas which he attached as atoresaid, for thirty days from the time final judgement was rendered in the suit; And if the plaintiff did not within the thirty days take the hay, grain, oats and peas, in execution, the same would be discharged from the process.

The plaintiff’s evidence shows, 'that he regular!y proceeded to final judgement in the suit, and in due season took'out his execution on the judgement, and delivered it to the defendant, who was sheriff, and to whom it was directed, to collect and return, with written directions on the execution to levy on the hay, grain, oats and peas attached on the original writ. By this the plaintiff continued bis lien upon the property attached, and the defendant could not shift off his responsibility for the loss of it, by delivering the execution to the constable for him to make a non est inventus as to "property. In short, the plaintiff showed sufficient evidence prima facie to entitle him to recover, and

The judgement of the county court is reversed, and a new trial granted.