Josuez v. Conner

Citations

• 7 Daly 448

Syllabus

<p>Where the complaint, in an action against a sheriff for damages for a false return of “ not found ” to an execution against the person, alleged that the action in which the execution issued was one in which an execution against the person would lawfully issue, and that an order of arrest had been issued therein, which was met by a denial of any knowledge or information sufficient to form a belief as to whether the execution had any force or vitality in law,—Held, that the burden of proof was on the plaintiff to show the issuing of a valid execution against the person.</p> <p>It seems that if in such a case the plaintiff were to allege only that the execution directed the sheriff to take the body, etc., the fact that the action was one in which such execution could not lawfully issue, or that no order of arrest liad issued therein, would have been matter of defense to have been pleaded and proved by the defendant.</p> <p>In such a case, if the action in which the execution against the body was issued was one in which such execution could not lawfully issue unless an order of arrest had been previously issued therein, the plaintiff must prove the issuing of such order.</p> <p>A sheriff is under no obligation to execute a void process regular upon its face.</p> <p>The best evidence of the fact that an order of arrest has issued in an action is the order itself.</p> <p>Secondary evidence to establish that fact will not be allowed, unless it is sufficiently shown that the original order is lost or destroyed.</p> <p>Where the evidence showed that when the order was last'seen it was in the hands of a judge of the court from which it issued, that the judge had since died, that the plaintiff’s attorney had searched, as he testified, “ with great care ” the files and indices of the clerk’s office and had not found the order, that it should be there, and that he did not know where it was:—Held, that the loss or destruction of the order had not been sufficiently shown.</p>