Swingle v. Boyler

• Decision Date: 31 March 1807
• Citation: 1 Tenn. 226
• Parties: SWINGLE v. ABRAHAM BOYLER.
• Court: Tennessee Circuit Court

1 Tenn. 226

SWINGLE

v.ABRAHAM BOYLER.

Superior Court of Law and Equity of Tennessee.

March, 1807.

In an action against a sheriff for selling real property to satisfy an execution when personal property could have been had, it is incumbent on the plaintiff to show that he had personal property, known to the sheriff, on which he could have levied.

John Swingle, by his attorney, complains of Abraham Boyler, late sheriff of Carter county, in the district aforesaid, in custody, &c., in a plea of trespass on the case, for that whereas the said defendant at the several times hereinafter mentioned, and for a long time before and since, was sheriff of said county of Carter; and so being sheriff a writ of fi. fa. issued on the third day of November, 1802, from the Court of Pleas and Quarter Sessions for said county of Carter, on a judgment recovered in said court at August term, 1802, by a certain John Rhea, against said plaintiff, for $234.43 damages and nine dollars seven cents and five mills costs, which was delivered to said defendant on the 10th day of December in the year aforesaid, to execute as sheriff of said county, and collect said sums of money so recovered for damages and costs; and said plaintiff avers, that at the same time said writ was so delivered, and at the time of the levy hereinafter mentioned, and for a long time before and since he was possessed in his own right of goods and chattels in said county of Carter sufficient to make said sums of money so recovered for damages and costs; and said plaintiff avers, that at the time said writ was so delivered, and at the time of the levy hereinafter mentioned, and for a long time before and since, he has possessed in his own right of goods and chattels in said county of Carter sufficient to make said sum of money so recovered for damages and costs, to-wit, horses, cattle, hogs, household furniture, bar-iron, smiths' tools, carpenters' tools, &c., of which said defendant then and at the time of levying hereinafter mentioned, there, to-wit, in said county, had notice; nevertheless said defendant well knowing the premises, but contriving and maliciously intending to defraud, oppress and injure said plaintiff, and to cause him to be ousted of the lands and tenements hereinafter mentioned, and forever deprived of the profits thereof, afterwards, to-wit, on the 19th day of January, 1803, levied said writ of fi. fa. on the following tracts or parcels of land in said county of Carter, to-wit, 200 acres on Indian Creek, and three tracts of 100 acres each adjoining said 200 acres on Indian Creek,...