Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-01-06
G! COURT F'' DECISIONS.
DIcEsTED BY w. 3. MARTIN.
Exclusively for -pilot.)
Notes Of Cases Recently Decided,
Which are Of Interest to
Our People.
ROWE ". HARDY.

ROWE ". HARDY.
Supreme Court OF Appeals of Virginia.
December Z, 1899.
THE PARTY ENTITLED. TO THE
PROCEEDS OF AN EXECUTION
CAN CONTROL THE WRIT. AND
HAVE 1T LEVIED OR NOT. AS HE
DESIRES.
THE UNDATED RETURN ON SUCH
WRIT IS PRESUMED TO HAVE
BEEN MADE IN DUE TIME.
THE OFFICERS RETURN IS COM
PETENT RECORD EVIDENCE,
ALTHOUGH THE WRIT WAS NOT
DEPOSITED WITH THE CLERK
UNTIL AFTER THE RETURN
DAY.
MAKING PAYMENT ON A JUDO
MENT is AN ADMISSION THAT
1T HAD NOT BEEN DISCHARGED.
INTEREST ON A JUDGMENT WILL
NOT BE ABATED BECAUSE THE
CREDITOR WAS WITHIN oTHE
FEDERAL LINES DURING THE
WAR.
The main question In this case was
whether a Judgment was barred by
the statute of limitations. There was
an execution sued out on the Judgment
but 1t was not levied, but by direc-
ton of the plaintiff was returned to
the clerks Office after its return day,
with an undated return thereon made
by the sheriff. showing that 1t was re-
turned by the plaintiffs order. Under
the Code of Virginia Judgment is bar
red after ten years from the return day
OF an execution on which there is no
-Feturn,-and after twenty years when
there Is such return. This suit was
Drought more than ten years after the
return day Of the execution issued on
1t. but less than twenty years there
after. The lower court gave Judgment
for the plaintiff and defendant ap-
pealed
The court says:
return on writ or process IS the
tshott official statement of the officer
endorsed thereon of what he has done
fin obedience to the mandate of the
writ. or why he has done nothing. He
may have been prevented from obey
ling the mandate of the writ by an in
Junction, or by n supersedeas, or by
the order of the plaintiff or his at
torney directing him TO hold 1t up or
to return 1t to the clerks Office with
out levying 1t. A return OF any of
these facts, endorsed upon the writ,
is sufficient return.
In executing the writ, the sheriff was
the agent of the plaintiff, who was en-
Titled to It's proceeds. and he and his
Jattorneys had the right to control the
execution, and to say whether the off,
Ger should levy 1t or return It without
adoing so.
1T was argued that the return, to be
valid and TO have the effect of keep
Ing the judgment alive, must have been
endorsed on the execution by the
sheriff on or before the return day and
the, execution returned by him TO the
clerks office on or before that day.
The presumption of law is, until the
contrary is proved, that the officer has
I performed his duty, and 1t is, there
fore to be presumed. in the absence Of
evidence to the contrary. that the re-
turn on the execution In this cause. be-.
Ing without date. was made while the
sheriff had the right to make it. and
In due time.
AS to the other part of the objection
that the execution was not returned
and filed in the clerks Office until after
the return day, the failure to return
Ii on the return day did not destroy the
legal effect of the return endorsed up
on It, But when deposited by the
sheriff In the clerks office from which
1t was issued, the return of the sheriff.
being such as he was authorized to
make completed the record of the ex-
ecution and became thenceforth COM
petent record evidence of the facts
stated in the return. although the ex-
ecution was not filed in the clerks Of
Ace until after the return day thereof.
! The debtor died in May. 1855, and only
I g few months before his death made
two payments on account of the judg-
ment, which was an admission on his
part that up to that time the judgment
had not been discharged.
The exception to the report of the
commissioner abating interest for three
years during the war; because the cred
, ttor was for that period within the
lines of the Federal army, was properly
sustained Judgment had been OBJ
tanned for the debt, both principal and
interest. and there was no power to
abate any part Of the interest any
more than there would have been to
abate part OF the principal. The
matter had passed into Judgment, and
! 1T was too late to raise the question of
an abatement of the interest. AT
flrmed..