Lathrop v. Lumpkin

Supreme Court of Virginia

Lathrop v. Lumpkin

2 Va. 49

DecidedMay 15, 1843

StatusPublished

This text of 2 Va. 49 (Lathrop v. Lumpkin) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lathrop v. Lumpkin, 2 Va. 49 (Va. 1843).

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Opinion

Baldwin, J.

delivered the following as the opinion of the court:

The court is of opinion, that the amendment of the sheriff’s return having been made not by obliterating [55]*55the first and substituting another in its place, but in a more proper manner by making an addition to the first return, which original and amended returns are to be regarded as constituting but one return—the return so constituted is upon its face contradictory in itself: that the same was necessarily given in evidence on the part of the plaintiff, to shew the issuing of the fieri facias for the relator, and the reception and disposition thereof by the sheriff: that the defendant had a right to rely upon said return as prima facie evidence in his favour: that the plaintiff, on the other hand, was at liberty to disprove any part of it, as well by intrinsic evidence furnished by the return itself, as by evidence aliunde: that it was competent for the defendant, in like manner, to sustain any part of the return : and that it was the province of the jury to decide, upon the whole evidence furnished by the return or otherwise, whether or not the execution was levied by the sheriff upon the property of the intestate in the hands of the administrator, and the same thereafter eloigned and lost by the negligence of the sheriff; or whether or not the sheriff might have levied upon such property in the hands of the administrator, but neglected so to do. The court is therefore of opinion that the circuit court properly rejected the instructions asked for by the plaintiff, but ought not to have given the instructions substituted therefor. The judgment is therefore reversed with costs, and the cause remanded, with directions to set aside the verdict, to give the parties, on the application of either, leave to amend their pleadings and make up more correctly the issues contemplated by them, and to award a new trial, upon which the instructions given upon the former trial are not to be repeated.

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Baldwin, J.

delivered the following as the opinion of the court:

The court is of opinion, that the amendment of the sheriff’s return having been made not by obliterating [55]*55the first and substituting another in its place, but in a more proper manner by making an addition to the first return, which original and amended returns are to be regarded as constituting but one return—the return so constituted is upon its face contradictory in itself: that the same was necessarily given in evidence on the part of the plaintiff, to shew the issuing of the fieri facias for the relator, and the reception and disposition thereof by the sheriff: that the defendant had a right to rely upon said return as prima facie evidence in his favour: that the plaintiff, on the other hand, was at liberty to disprove any part of it, as well by intrinsic evidence furnished by the return itself, as by evidence aliunde: that it was competent for the defendant, in like manner, to sustain any part of the return : and that it was the province of the jury to decide, upon the whole evidence furnished by the return or otherwise, whether or not the execution was levied by the sheriff upon the property of the intestate in the hands of the administrator, and the same thereafter eloigned and lost by the negligence of the sheriff; or whether or not the sheriff might have levied upon such property in the hands of the administrator, but neglected so to do. The court is therefore of opinion that the circuit court properly rejected the instructions asked for by the plaintiff, but ought not to have given the instructions substituted therefor. The judgment is therefore reversed with costs, and the cause remanded, with directions to set aside the verdict, to give the parties, on the application of either, leave to amend their pleadings and make up more correctly the issues contemplated by them, and to award a new trial, upon which the instructions given upon the former trial are not to be repeated.

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Bluebook (online)

2 Va. 49, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lathrop-v-lumpkin-va-1843.