9 N.H. 48 | Superior Court of New Hampshire | 1837
delivered the opinion of the court.
The rule which has long been adopted in relation to extents upon real estate, and which has been applied in many cases, is, that it ought to appear by the sheriff’s return that the statute which regulates extents has been strictly pursued. Nothing is to be left to conjecture. Nothing is to be presumed in favor of the extent. Every thing essential to pass the title must be expressly stated, or necessarily implied in what is stated in the return. 2 N. H. R. 495, Mead vs. Harvey; 4 do. 329 & 548; 3 do. 45 & 85; 6 do. 520.
In this case it does not appear by whom one of the appraisers was appointed. It is very probable that he was appointed by the officer who made the extent. But this is not stated; nor is it necessarily implied in any thing that is stated. This is a fatal objection to the extent. It does not appear to have been made in the manner prescribed by the statute.
And we are satisfied, that no amendment of the officer’s return of the extent in this case can avail the defendant.
It is settled, that it is the leaving of the copy of the original writ and return with the town clerk, that constitutes an attachment. 5 N. H. R. 275, Bank vs. Burnham.
In this case, all the doings of the sheriff in relation to the attachment by virtue of the tenant’s writ, are returned under the date of May 11, 1833. And it has been decided that upon such a general return we are not permitted to intend that the copy was left with the town clerk on the day thus stated ; but are bound to look to the true time when the copy was actually delivered to the town clerk. 4 N. H. R. 431, Kittredge vs. Bellows.
It appears by the statement of the parties in this case, that
Judgment for the demandant.
