Opinion by Our opinion is that there is error in the charge, for which the judgment should be reversed.
Plaintiffs complain that the sheriff has failed to do his duty,, whereby they have been damaged. Although this is a negative allegation, they should certainly have offered some proof to sustain it. (1 Greenl. Ev., sec. I'S.) The proof which they offered was that they put into the sheriff’s hands a writ, which directed him to attach goods enough to make something over four hundred dollars^, that the goods attached, when sold some months afterwards, brought only the two hundred and ten dollars. But it does not necessarily follow from this that the sheriff had failed to perform. his duty. His return shows that he levied on goods to the value ■ of six hundred and ninety dollars. This return is at least primer facie evidence for him. (Drake on Attach., 5 ed., sec 210; Freeman on Ex., sec. 366.)
This return was sufficient until it was controverted by plaintiffs.. It is not enough for them to show that the goods sold for much-less than the sheriff’s estimate. That might arise from a variety of causes. Suppose the goods had greatly declined in price between, the levy and the sale. Must the sheriff pay the difference ? We think not. Some discretion must be allowed the sheriff in cases like this. He must not neglect the interests of the plaintiff, yet he must not needlessly oppress the defendant. He must act with prudence and sound judgment. It is highly probable that the goods which he attaches will, when sold as he will sell them, bring less than their real value. Therefore he should take more in value than the amount of the claim and the probable costs and expenses. How-much more he should take has not been determined, and cannot be-determined by any invariable rule. The real question generally is not how much did the sheriff take, but did he exercise that “ caution and reasonable discretion such as should influence the conduct of prudent and discreet men generally in the management of their own affairs.” (DeWitt v. Oppenheimer, 51 Texas, 103.) It occurs to us that the judgment is not sustained by the evidence. The court erred in overruling the motion for a new trial, for which the judgment should be reversed and the cause remanded.
Examined and approved, and reversed and remanded.