#### Alexander Dunlap v. Lucien Berry.

A-ppeal from Morgan.

1. Execution lost — proof of. Where an execution is lost, the execution docket kept by the clerk, and the entries therein of the date and amount of the execution, where the clerk testifies to the regularity of the docket, are admissible as evidence of the facts stated therein, (a)

*3402. Lost writing — evidence. A witness, in giving testimony of the contents of a lost writing, may make use of any memorandum to refresh his memory. (b)

3. Sheriff — held to reasonable diligence. In an action against a sheriff, for falsely returning an execution nulta bona, the court instructed the jury that if they believed that the defendant in the execution had property in the county sufficient to pay the execution, or part thereof, and the sheriff by reasonable diligence and exertion, could have made the amount of the execution, or part thereof, they should find for the plaintiff: Held, that the instruction was correct.

4. Same — same. It is the duty of an officer having an execution in his hands against the property of a defendant, to make reasonable exertions to levy upon the property of the defendant in his county ; and if he fails to exercise due diligence in the discharge of his duty in this respect, he is responsible for whatever loss or detriment the person who commits the execution to his hands may sustain, in consequence of such failure.

5. Sale — delivery essential to pass title. A sale of a portion of the bricks in a kiln, by the thousand, cannot be complete until those sold are separated in some [* 328] mode from the general mass. To make such sale good, there must be an actual or virtual delivery of the property sold.

6. Execution — right of property. A sheriff is not bound to notice bare assertions of individuals, as to their claim to property in the possession of a defendant in an execution; he is only required to notice legal claims fairly exhibited,

7. Witness — state facts; jury conclude. A witness where there is a conflict as to the ownership of property, should state facts, and let the jury draw conclusions. A statement by a witness, that he “considered” property his own, is no evidence that it was so: it is merely an expression of opinion.

8. Evidence — action v. sheriff. Semble. That in an action against a sheriff, for a false return to an execution, it is unnecessary to produce the judgment upon which it was issued.

The proceedings in this cause, in the Morgan circuit court, were had at the June term, 1842, before the Hon. Samuel D. Lockwood and a jury. Verdict and judgment were rendered for the plaintiff for $210.54. The defendant appealed to this court. The facts appear in the opinion of the court.

J. A. McDougall, for the appellant,

relied upon the following points and authorities: Mrst. The court below erred in admitting proof of execution, and return by the docket, without previous evidence of a judgment. Crowley v. Blewett, 12 Mod. 128; 4 'Phillips’ Ev. 403.

Second. The court erred in permitting witness (Yates) to testify from a copy of memorandum. 2 Phillips’ Ev. 751-7; 3 Phillips’ Ev. 1238-9, and note; Ibid. 870 ; Jones v. Stroud, 2 Carr, and Payne 196; Church v. Perkins, 3 Term R. 749.

Third. The instructions given at the instance of the plaintiff were erroneous. The first instruction lays down a rule which would charge sheriffs whenever there was property within the county, whereas the sheriff is only liable in cases of gross negligence. Breese’s App. 18, 19. The third instruction determines a question of fact in issue before the jury. The other instructions excepted to are calculated to mislead the jury ; and it is insisted that the testimony of a witness, that he considered certain *341property his was evidence of the fact. It would not, of course, be conclusive, but.it should go to the jury, with the aecompanyinor circumstances, and receive such consideration as, in their opinion”, the evidence and circumstances justified. In the absence of other testimony and opposing circumstances, it would be conclusive.

Fourth. The court erred in overruling the motion for a new trial; no judgment having been introduced, the verdict was not sanctioned by testimony.

Wm. Thomas, (with whom was Richard Yates and John W. Evans,) for the appellee:

The sheriff is bound to use reasonable diligence to find property, and the plaintiff is not bound to show property, in order to make the sheriff liable for neglect, in not levying an execution. Hargrave v. Penrod, Breese’s App. 15. A sheriff cannot return that he was misled, and therefore did not execute process ; because, he may take the posse [ *329 ] eomitatus ; nor can he return that he had levied on goods, and afterwards lost them, nor that a defendant had been rescued. 7 Comyn’sDig.; title Return 282 ; Bell v. North, 4 Littell 135.

"A sheriff is bound to use all reasonable endeavors to execute process against the person. He should go to the house of the defendant to ascertain whether he is at home, and if not,- to learn where he is — particularly when he resides in the immediate neighborhood, and if instead of pursuing that course, he chooses to rely upon vague information, obtained from casual enquiries in the streets, that the defendant is not at home, he does it at his peril. Hinman v. Borden, 10 Wend. 371; Bell v. The Commonwealth, 1 J. J. Marsh 557.

To put the sheriff upon proof of the correctness of his return, prima facie evidence of its falsity is enough ; as proving that the defendant had property in his possession. Morgan v. Seymour, 5 Wend. 310.

Whatever weight may be attached to an official return, under other-circumstances, when it is directly attacked, it should not be permitted to balance against prima facie evidence. Ibid.

If a party be in possession of goods apparently the property of a debtor, the sheriff, who has & fieri facias to execute, is bound to enquire whether the party in possession is so bona fide ; and if he find the possession is held under a fraudulent bill of sale, he is bound to treat it as null and void, and levy under the writ. Lo-ríele v. Crowder, 15 Eng. Com. Law R. 165.

Upon the question of evidence, the decisions in the following cases prove that the Court below properly admitted the secondary evidence : Winn v. Patterson, 9 Peters 663 ; Hinman v. Bruce, 13 Johns. 529 ; 3 Phillips’ Ev, 1067, note 723.

(a)

Cases Citing Text. Transcript from execution docket is competent evidence tending to prove that lost execution was issued. Becker v. Quigg, 54 Ill. 390, 396.

(b)

While witness may use memorandum to refresh his memory, he must be able to say that he remembers the facts to which he testifies. C. & A. R. Co. v. Adler, 56 Ill. 344, 348.

Shields, Justice,

delivered the opinion of the court: This was an action on the case by Lucien Berry against Alexander Dunlap, sheriff of Morgan county, brought in the Morgan circuit court, *342for a false return to a writ of fieri facias sued out of the clerk’s office of the Morgan circuit court, in favor of said Berry against one Elias Elder, and placed in the hands of Dunlap, sheriff of Morgan. The declaration contains three counts, each averring a return on the said writ, “ That he (Dunlap) had made diligent search and no property found to satisfy the writ.” The two first counts state that during the life time of the execution, and while in the hands of the said Dunlap, the said Elder had property in the county, of which Dunlap had notice; and the third count states that he had property out of which, with due diligence, the amount of the debt could have been made; and that he fraudulently failed and neglected to use such diligence, etc. Dunlap [ *330 ] pleaded not guilty to this declaration, and the parties went to trial.

The bill of exceptions shows that upon the trial, proof having been given of the loss of the execution, and return set forth in the declaration, the court permitted the execution docket of the clerk, and the entries therein of the date and amount of said execution, the clerk having first téstiñed as to the regularity of such docket, to be given in evidence of such facts. Dunlap, by his counsel, objected to the introduction of this evidence. The objection was overruled ; to which Dunlap excepted. The plaintiffs attorney, Yates, was then sworn, who testified that he copied the return exactly in the declaration, and that he held in his hand a copy, as stated in the declaration, which he used to refresh his memory, and which was the same as the original return, and the same as that set forth in the declaration. To the introduction of this testimony Dunlap also objected, but the objection was overruled, and exceptions taken.

A variety of testimony was afterwards introduced in relation to Elder’s property at the time, and in relation to a brick kiln which Elder had previously burned, and which was still in being, while the execution continued in the hands of Dunlap; and there was some other testimony which it is not necessary to notice. Several instructions were next asked for by the plaintiff, which were given to the jury by the court; and to the first, third, fifth, and seventh of which Dunlap excepted. The instructions are set forth in the bill of exceptions, and will be noticed hereafter.

The jury found a verdict for the plaintiff. A motion was thereupon made for a new trial,.for the reasons,

1. That Yates’ testimony should have been excluded ;

2. That the instructions given to the jury were erroneous ;

3. That the verdict was against law and evidence.

The motion for a new trial was overruled, and excepted to ; and this decision is now assigned for error.

First. Did the court err in permitting the entries on the clerk’s docket to be read to the jury ?

*343Previous to the introduction of this testimony, the plaintiff adduced proof of the loss of the execution and return thereon, and the simple question is, what would be the next best evidence of tlieir contents ? The clerk proved that it was the practice of his office to keep an execution docket in which the date, amount, etc., of each execution were entered, as well as the return; and that the entries relative to the execution and return in question were correctly made by him. When a book is thus regularly kept by a clerk, as an execution docket, it might be questionable whether the entries therein would not constitute good and valid primary evidence ; hutas secondary evidence, it is the very best that could be produced in such a case. The next objection raised is to the decision of the court, in permitting Yates to use a copy of a copy in testimony. It appears that after proof [*381] of the loss of the execution and return, Yates, the plaintiff’s counsel, was sworn, who testified that he had the original execution and return before him, when he drafted the declaration, and that he copied both of them correctly ; and that he held a copy of the return, as set forth in the declaration, in his hand, in order to refresh his memory. This is not liable to the objection of using a copy of a copy of a written instrument in evidence. He was merely called upon to give parol proof of the contents of a writing which was lost, and it was competent for him to use the declaration or any other paper for the purpose of refreshing his memory on the subject.

Having disposed of the objections raised to the admission of testimony, it is necessary to advert next to the instructions. The first instruction is in the following woids: “If the jury believe that the said Elder had property in the county of Morgan, sufficient to pay the execution, or part thereof, against him, and that the said Dunlap, by reasonable diligence and exertions, could have made the amount of the said execution, or part thereof, they will find for the plaintiff.”

The purport of this instruction is simply to require the sheriff to make reasonable exertions to levy upon the property of the defendant in his county. This at least every sheriff and constable is bound to do; and if he fails to exercise due diligence in the discharge of his duty in this respect, he is responsible for whatever loss or detriment the person who commits an execution to his hands may sustain in consequence of such failure. Hargrave v. Penrod, Breese’s App. 18, 19; 10 Wend. 367.

The language of the third instruction is, “ That if the bricks were sold by the thousand, and were in the kiln with others, and remained to be separated and counted, the bricks were Elder’s until separated and counted.”

This instruction is correct, so far as its application to the testi-*344monj can be gathered from the bill of exceptions. Elder burned and owned the kiln, and no sale, by thousand, of any portion of the bricks, could have been considered complete, until the lot sold was separated, in some mode, from the general mass. To make a sale in such a case good, there must be either an actual or virtual delivery of the lot sold.

The fifth instruction is, “ That the sheriff is only bound-to notice legal claims fairly exhibited of third persons to property found in the possession of the defendant; and not bare assertions apd declarations.” This is certainly correct; otherwise the idle assertion of a third person would prevent the sheriff from performing his duty.

The following is the seventh instruction: “ That the statement of a witness that he considered that the property was his own, is not evidence that it was, but merely an opinion.” The ['*'332] word “ consider,” as used in this connexion, is an expression of opinion, and not a positive assertion of ownership. Besides, a witness, in a conflict of ownership, should state facts, and let the jury draw the conclusion, by determining the true ownership. The other objections are not tenable.

The judgment below is affirmed at the costs of the appellant.

Judgment affirmed.