Page:Pennington's Executors v. Yell.pdf/25

236 this instruction was without warrant in the law, that this was an effort to rest a presumption upon a presumption. The presumption that there was no more property is based upon the presmnption that the sheriff did his duty. That is to say, as it was his duty to levy the whole debt if there was sufficient property in his county, as he did not levy the whole debt, ergo, then there was no more property in his county. Now the law will not presume upon such a basis as this. Legal presumptions must be based upon facts, not upon presumptions.

The ninth instruction was clearly erroneous as the duty to search for property did not rest upon the defendant, as we have already seen; but as this error was not against the plaintiff but the defendant in error, it cuts no figure in the question before us.

The court below did not err in refusing the first instruction asked by the plaintiffs and refused, because in its phraseology it imposed the duty upon the defendant of searching for property, otherwise than by the process of the court: and also because it was not so qualified as to allow him the benefit of the testimony in the record going to show that as to Mrs. Smith, he might have been induced to cease to send out process of execution by a bona fide prudent regard for the interest of his client. Nor was there any error in the refusal of the eourt to give the second instruction asked by the plaintiffs. Because, while dower remains unascertained and until there has been an actual admeasurement by metes and bounds, it is a mere potential interest, amounting to nothing more than a chose in action, and is not subject to seizure and sale by execution at law. ''1 Smedes & Mar. Ch. Rep. 489. 4 Paige 448. 13 Wend. 526.''

In view then of the whole case we are of opinion that the court erred in refusing the motion for a new trial. The judgment must therefore be reversed, a new trial awarded and the cause remanded to be proceeded with.