By the Court.
McDonald, J.delivering the opinion.
The first three grounds taken in the mot-ioh before the Court. below for a now trial, have been abandoned.
[1.] When the plaintiff’s Counsel was stopped by the-Court, on the motion of claimant’s Counsel, for misrepresenting the evidence, by asserting that the defendant had sold ■ to claimant the whole of his property during tho pendency of' the suit on which plaintiff’s judgment was obtained, and he-*209explained by saying it was his inference, only from the evidence, there was no error in the refusal of the Court, after this explanation, to control him. There was some proof on which such an argument might be predicated, though slight,, certainly, taking the whole evidence together. The Jury could not have been misled after the explanation.
[2.] The Court erred in charging the Jury, that if the-debtor sold to his creditor property, in payment of his debt, and a large surplus over and above the payment of it, it would be fraudulent against the creditor, there having been no evidence made to warrant such a charge.
[8.] The property claimed was levied on by the Sheriff, at the same time that a tract of land and a parcel of bricks, which were sold, were levied on. The plaintiff’s Counsel argued, as an inference from the testimony, that the defendant had sold the whole of his property pending the suit; and claimant’s Counsel requested the Court to charge the -Jury, that the levy and sale of the land and bricks was proper evidence to be considered by them, against that inference. This evidence was certainly a clear reply to that inference; and the charge, as requested, ought to have been given; and the refusal to give it was error.
[4.] Under no rule of evidence that occurs to us, was the return of the Sheriff on the writ oifi. fa. showing the sale of the bricks, conclusive on the claimant. It would not have been conclusive on the plaintiff, for under the Judiciary Act of 1799 the plaintiff might have proceeded by attachment against the Sheriff, if he had been injured by a false return. By a later Act, he may traverse the Sheriff’s return in certain cases. This case is an illustration of the propriety and good sense of the rule which allows the inquiry; for the Sheriff’s own evidence impeaches the return, and shows that he intrusted to one of the parties an important duty, which he alone ought to have executed.
The judgment of the Court is reversed, and a new trial ordered.