M'Coy against Reed, 5 Watts 300

The opinion of the Court was delivered by Gibson, C. J. An adjudication of money to a younger judgment creditor on the basis of official misconduct, would certainly not protect the officer from the action of a party injured. But the presumption is primarily against culpability’’; and the fact of adjudication, as it appears in these pleadings, the ground of it not being disclosed, is sufficient for the defence in the first instance, provided the record be not precluded, for other causes, from operating between the parties.

Granting the proceeding to be res inter alios acta, and not' in rem, for what was it'introduced into the cause? Not to show the truth of the fact adjudicated, but that there was, in fact, an adjudication, a circumstance sufficient for the defence in the first instance. For this it is clear the record is competent, whether in favour of a party or a stranger. The distinction is a familiar one, and well illustrated in Gratz v. Burr, 4 Wheat. 213.

Instead, then, of replying that the adjudication was founded on the sheriff’s own testimony, the plaintiff’s course, had his declaration permitted it, was to reply such facts as would have rebutted the presumption by showing misconduct in leaving the goods in the debtor’s possession under circumstances of negligence that discharged the lien. But such was not the cause of action laid; and such a replication would consequently have been a departure from the declaration in which the breach assigned 'is an omission to advertise and sell, return the writ and pay over the money.

The parties decline to take an advantage founded on pleading, and we are to decide the cause on its merits, rather as a case stated than a demurrer; and it remains to say whether there is a circumstance in it to show that the. plaintiff’s execution was postponed for the sheriff’s negligence. The declaration contains no allegation of it; and the replication charges no more than that the court adjudicated exclusively on the sheriff’s testimony; a circumstance not very likely to show that the inquiry had terminated in a conviction of his misconduct.

But might it have been postponed, under any circumstances, for the default of the officer? According to the cases by which the law has been definitively settled with us, it might not. In Hickman and Black v. Caldwell, 4 Rawle 376, and the cases- there cited, the rule appears to be that the sheriff’s procrastination, even by sufferance of the execution creditor, is not fraudulent per se; and that the latter is to be postponed only where he has directed the sheriff not to proceed.

He must, therefore, have been postponed for his own, and not for the sheriff’s laches; and neither on the pleadings, nor on the merits, does he seem to have a case to recover. Judgment affirmed.