Bealls v. Guernsey

8 Johns. 52

Opinion

Per Curiam.

The later authorities, (Cowp. 18. 10 East, 73.) do not require the sheriff to show a fi.fa. returned, when he justifies under it; because an execution is good and effectual without ever being returned. It was formerly understood otherwise, according to. the opinion of Kingsmill, J. in 21 Hen. VII. 22. b. and of Lord Holt and the rest of the judges of the K. B. in Freeman v. Blewitt, 1 Salk. 409. But the recent decisions are founded on better reason and ought to govern. Nor did the want of an endorsement upon the execution, of the time of receiving it, render it inadmissible in evidence. The statute requiring the sheriff to endorse the time, was merely directory to the officer, for the sake of greater certainty ; and the omission' to do it will not preclude the sheriff from showing the time by parol proof. It may turn every presumption, arising from doubt as to the precise time, against him; but it will not absolutely shut out other proof.

The verdict must be set aside, and a new trial awarded, with costs to abide the event.

New trial granted.