Spence v. Tuggle

¶1The three first counts of the declarations state every thing that it is necessary to prove, to entitle *542the plaintiff to recover. If they are objectionable for any cause, it is perhaps for setting out the cause of action at too great length, and making some superfluous allegations. But these are not available on demurrer, utile per inutile non vi-tiatur.

¶2It is insisted by the third plea, that the plaintiff is not entitled to maintain his action, because he did not make the necessary affidavit to authorize the issuing of the ca. sa. for the failure to execute which, the defendant is sought to be charged; but approved its issuing without an affidavit. The replication denies this, and affirms that an affidavit was duly made — stating how and when. If the plea is good, we cannot very well perceive in what the replication is bad. But we incline to the opinion that the plea does not set up an available bar, and that it was the duty of the sheriff to execute the process. At most, the want of an affidavit made the execution voidable only, subject to be set aside at the instance of the defendants therein ; but it could not be collaterally impeached by an officer charged with its service.

¶3This brings us to consider the questions raised upon the bill of exceptions. 1. It is not pretended that there is any substantial variance between the judgment and ca. sa., but it is insisted that it was not competent for the clerk to indentify the judgment as that on which the execution issued, by stating that it was the only one between the same parties in his court. If it was necessary for the plaintiff to produce the judgment, we should think it would be sufficiently proved by its conformity to the ca. sa., and that the testimony at most would be superfluous. But if the law be otherwise, we cannot perceive what principle would be violated by per-. mitting the keeper of a record to testify that it was that, which he had been called on to produce, and that there was not another of a similar character in his custody.

¶42. It might not be necessary for the plaintiff to prove, that the defendants in execution, or either of them, had property in their possession of value sufficient to satisfy it, while it was in the sheriffs hands, in order to charge the latter for a breach of official duty. If the damages sustained by the plaintiff were not so much as the law would perhaps imply, it was competent for the defendant to prove that the defend*543ants in execution were not able to pay the execution, either in whole or in part. This proof might also be rebutted by evidence of the ability of the defendants; but the default being established, the plaintiff would, without reference to the injury sustained, be entitled to nominal damages at least. From this view it follows, that evidence in respect to property in the defendant’s possession, no matter at what stage of the trial it was offered, does not warrant the reversal of the judgment. If it was adduced before any proof had been given by the sheriff, that the defendants were unable to satisfy the execution, if objectionable, it was at most unnecessary and superfluous — if to rebut such evidence, then it was altogether proper.

¶53 and 4. The declaration of the defendants in execution, that they had disposed of certain property before the ca. sa. was placed in the sheriff’s hands, was clearly inadmissible. It may be allowable to prove, that one who was in possession of personal property said, that he was or was not the owner. Such evidence is explanatory of the possession, and is'admissible as a part of the res gesta ; but when the possession and property are disposed of, the declaration that it was or was not the party’s, or that he sold it, cannot be received as evidence ; for the res gesta is not continuing.

¶6Evidence to show that the defendant in the present case, and his deputies had always found it difficult to arrest the defendants in the ca. sa. would not show that the defendant could not have arrested them under the process in his hands. .The same difficulty majr not have continued; at least an effort should have been made to find them.

¶75. The charge of the circuit court merely asserts that it was the privilege and duty of the sheriff, if he had reasonable ground to believe that the defendants in the ca. sa. would resist him in its execution, to summon to his aid such assistance as was necessary to enable him to execute the mandate of the writ. There is no error in this charge.

¶8The refusal of the circuit judge to permit the jurors to testify that their verdict was influenced by a misapprehension of the charge, whether conformable to law or not, furnishes' no ground for the reversal of the judgment. The granting, or the refusal of a new trial addresses itself to the discretion of *544the court trying the cause, and an appellate court will not inquire whether it was rightly refused, or the reasons which induced the decision were well founded. There is no error in the record, and the judgment is consequently affirmed.