Page:Hempstead's Reports.pdf/356

Rh   In this case it appears that the marshal has levied on the lands of the intestate, and as every officer is presumed to do his duty, it must be taken as at least primâ facie evidence that sufficient goods and chattels could not be found whereon to levy the execution, and therefore that it was necessary to seize and sell the lands. But even if there was in fact sufficient personal property, still the sale would not be invalid, nor would the title of the purchaser be affected, as the command to take personalty first is merely directory to the officer (7 Eng. 272, 273), and for any omission of duty in that respect, he would be responsible for whatever damage might accrue to the estate; but the sale would be good. 3 Bibb, 219; 3 A.K. Marsh. 281; 4 Monroe, 474; 5 Blackf. 590; 6 Wend. 523.

On the whole, I am clearly of opinion that this application ought to be refused, and that the plaintiffs have a right to proceed to a sale of the property.

Petition refused. 