To support the first ground he offered evidence of the land’s being unimproved, to which Ridgely, for the plaintiff, objected because such evidence controverted the return of the sheriff. Now the sheriff is bound by his return and answerable for it. If he has made a false return, defendant may sue him, but he cannot controvert its validity in the manner now proposed.
Note.
The return of a sheriff duly filed may certainly be falsified in an action against him, but the question is how far paroi proof is admissible to controvert it when the fact stated in it comes incidentally and collaterally in question? It seems to be at least prima facie evidence, Rex v. Elkins, 4 Burr. 2129, where sheriff returned a rescue, and the court gave it such credit as to issue an attachment in the first instance, — though when the party was after indicted for the rescue he falsified the return. See Phill. Ev. 294. So in 11 East 297, Gyfford sued Woodgate for malicious prosecution in suing out an alios fieri facias after a sufficient ex*499ecution under the first. Defendant pleaded license, viz, that he had forborne to sell under the first and had sold under the second by request and consent of plaintiff, and then produced the sheriff’s return to that effect. This was held (semble) good primafacie evidence, and so the plea was established.
Admitting the evidence then to falsify the return, the question, is:
First [point]. Can unimproved lands be sold under a fieri facias? 2 Del.Laws 926, s. 4, the sheriff shall specify the principal improvements on land taken in execution by a fieri facias, “if any” (i e. improvements) in his return, and from the preamble-to this section one would think fieri facias before this Act had. been a “usual execution process” against land, and the Act, 1 Del. Laws 111, s. 4, merely enacts that a levari facias may issue in case-the land is unimproved. This was to allow the plaintiff a more-speedy remedy, perhaps. Where is the Act which positively orders an inquisition on every fieri facias executed on lands? Not that of 1796; [it] only “authorizes.” Nor semble that of 1788, 2 Del.Laws 927, which, as I understand it, orders an inquisition only “in such case,” i e. in case of a levy on improved lands. For aught that I see, a fieri facias may be levied on unimproved lands then, and a sale made; and [see Edmondson, Executor of Dolby v. Jackson] post, 37, for rule on improved estates for life.
Second point. The section authorizing the levari facias, 1 Del-Laws 111, s. 4, is the only section directing the advertisements to be set up, but whether the proceedings were regular or not, the purchaser under a fieri facias in England (where terms for years are often so taken) always gains a title under the sheriff, unless the writ be void. 2 Tidd Pr. 936, “for it would be very-hard if it should be at the peril of the purchaser under a fieri facias, whether the proceedings were regular or not.” 1 Ves.Sr. 195. Should return not be a venditioni exponas after a fieri facias?
Third point. Vide [Edmondson, Executor of Dolby, v. Jackson] post, 37. On this, the case should have gone for defendant. Whenever payment is presumed, we see the execution cannot be made. Execution, judgment, bond or statement presumed paid after one year, therefore no execution until revised. 2 Tidd Pr-990.