Berwald v. Ray

Citations

• 8 Pa. Super. 365
• 1898 Pa. Super. LEXIS 66

Syllabus

<p>Trespass for illegal sale by sheriff — Tille to goods sold — Shifting burden of proof — Province of court and jury — Evidence.</p> <p>Where, in an action against the sheriff for an illegal sale, the plaintiff derives title from a judicial sale, the record of which is put, in evidence, the burden of proof is then cast upon the sheriff, but when the goods in dispute, seized in defendant’s possession, are' not identical with those covered by such judicial sale the burden is cast upon the plaintiff to show that the actual goods, sold by the sheriff had been acquired in the course of a business carried on by the defendant in the execution as agent for plaintiff and for his, plaintiff’s, benefit. This involves a mixed question of law and fact which should be submitted to the .jury with appropriate instructions, and facts and circumstances relevant thereto are admissible in evidence, but the validity of the .judicial sale cannot be attacked in the proceedings against the sheriff.</p> <p>Question for jury — Presumption from, exclusive possession — Credibility of witnesses.</p> <p>Prima facie presumption, arising from exclusive possession, by defendant in execution, of goods levied upon by sheriff must be overcome by affirmative evidence; and even though the witnesses of plaintiff, in an action of trespass against sheriff, testify to all facts necessary to establish his ownership, yet, as his case depends upon their credibility, the question must in general be submitted to the jury.</p> <p>Trespass — Wrongful sale by sheriff — Estoppel—Inference from exclusive possession — Burden of proof.</p> <p>Where the sheriff levies upon and sells the goods of B. upon an execution against R., the former may maintain an action of trespass without proof of other facts; to escape liability the sheriff must show that the real owner is estopped by some action of omission or commission; but where the goods were in the possession of the defendant in the execution, and the possession was app