NEW RIVER MINERAL CO. v. ROANOKE COAL & COKE CO., 110 F. 343

SIMONTON, Circuit Judge (after stating the facts as above). The well-settled rule of this court is that the action of the circuit court in refusing or granting a new trial is not reviewable. The rule is so well settled, and has been declared so often by this court, that no citation of authority is necessary. The only question in the cáse’is that raised by the first assignment of error: Was the notice issued under the Virginia statutes returned by the sheriff within the time required by law? This being a mode of suit, the creation of statute, the statute must be followed strictly.

The statute does not prescribe the mode of the return by the sheriff. Whether he returned it is a fact to be ascertained. There is no doubt thát the notice and the return got into the clerk’s office, for the cause was duly filed and docketed by the clerk. • Did it get there within the five days after service? It was served on 12th January, 1900. On the bundle of papers, including this notice, with the return indorsed, the' clerk had put: “Tax, $6.20, paid. Filed,” etc., “January 16, 1899.” This tax is levied upon the sum sued for in the cause, and is ascertained upon examination of the bill of particulars.

In this case it was levied upon the $5,665.31, sued for in the notice. The strong, almost conclusive, inference of fact is that this notice, with its bill of particulars, Was at .that date, in the clerk’s office, filed within the five days. If with this we take the presumption of law that the sheriff did his duty, the contrary not appearing (Ross v. Read, 1 Wheat. 486, 4 L. Ed. 141; Gonzales v. Ross, 120 U. S. 605, 7 Sup. Ct. 705, 30 L.

Ed. 801), the conclusion must follow that the court below did not err in refusing the motion to quash. “The presumption of law, until the contrary is proved, is that the officer has performed his duty (1 Greenl. Ev. § 40; Freem. Ex’ns, § 355; O’Bannon v. Saunders, 24 Grat. 138; Hartwell v. Root, 19 Johns. 345, 10 Am. Dec. 232; Maury v. Cooper, 3 J. J. Marsh. 224; and Egery v.

Buchanan, 5 Cal. 53), and it is, therefore, to be presumed, in the absence of evidence to the contrary, that the return on the execution in this cause, being without date, was made while the sheriff had the right to make it, and in due time.” Rowe’s Adm’r v. Hardy’s Adm’r, 97 Va. 678, 34 S. E. 625. The judgment of the circuit court is affirmed.