Cooper v. Bisbee

4 N.H. 329 | Superior Court of New Hampshire | 1828

The opinion of the court was delivered by

Richardson, C. J.

One of the questions raised in this case, is, whether the tenants caused their execution to be extended upon the demanded premises, within thirty days after their judgment was rendered, so as to save to them the benefit of their attachment. The decision of this question, rests entirely upon the officer’s return, in which is stated what may perhaps be construed as amounting in substance to this : — that he entered upon the land and commenced the extent, within thirty days after judgment. But the day, when he so entered, and commenced the extent, is not stated.

The duty of a sheriff, in making a return of an extent, is very plain and simple. He is only required to state what he has done and where it is material, the day when he did it. In this case, all that was required in order to save the attachment made by the tenants, was, that the sheriff should state the day, within the thirty days when he commenced the extent, and then it would have distinctly appeared, whether the attachment was dissolved or not, when he commenced his operations. But, instead of returning the day when he commenced the extent, he only returns that he commenced it within thirty days after the judgment. Now, whether he in truth commenced the extent within the thirty days may depend altogether on the questions, whether the judgment was in law to be considered as rendered on the first or on the last, day of the term, and whether, in computing the thirty days, the day when the judgment was rendered was to be included in the computation. These are questions of law, that it il certainly possible the officer may not have decided correctly. Yet, if this return be legal his decision is final and conclusive. Besides, it is possible, that he made mistakes in computing the thirty days. But if this return is sufficient, those mistakes are beyond the reach of all correction. The sheriff’s return that he commenced the extent within thirty days, puts all these matters at rest.

The law however is not so. it is a well settled rule, that the sheriff must state the facts particularly, that the court may see that the law has been his guide. A general return by a sheriff that he has done an act according to law has always been held insufficient, because he is not to judge of the law. So here, the return by the sheriff ⅛ insufficient, because he is not to judge of the commencement or of the end of the thirty days, nor ,fo settle whether any particular day is within the time. It is his business to state the day when he commences his operations, and has nothing to do with the thirty days. Goodwin v. Smith.

We are therefore of opinion, that the return of the extent on which the tenants rely, does not shew that it was commenced within the thirty days, and that they have lost the benefit of their prior attachment.

But several objections have been made on behalf of the tenants to the extent under which the demandants claim, and if these, or any of them, be well founded, the tenants will still be entitled to judgment.

In the first place, it is objected that the return does not state, that notice was giv en to the debtor to choose an appraiser, nor shew any sufficient reason, why notice was not given.

But the return states, that the debtor was not within the state, nor within the knowledge of the officer, which is tantamount to a statement that he had gone to parts unknown, which has been settled to be sufficient. Parish v. Harriman 3 N. H. Rep. 317.

It is further objected, that the return does not state, that the officer appointed an appraiser for the debtor as the statute requires. The words of the statute are, “and in all cases where the debtor shall, on due notice, neglect or refuse to choose an appraiser, the officer shall appoint one for such debtor.” The meaning of this is only that when the debtor neglects or refuses the officer shall appoint in his stead. Here the return states, that the officer-appointed two appraisers on his part, the debtor not being within his knowledge. This, in our opinion, is equivalent to stating that one was appointed for the debtor, and we think that the objection has no foundation in fact.

Another objection to this extent is, that it does not appear that all the creditors assented to it, one only appearing by the return to have acted, But this objection cannot prevail. By bringing this action and demanding the land all have adopted the extent. And although it is not stated in the return that the one, who acted, acted in behalf of all the creditors, yet from the relation in which he stood to them that must be intended. It has been held, that one of two judgment debtors may elect an appraiser to appraise lands belonging to both. 8 Mass. Rep. 118, Herring v. Polly. And we entertain no doubt, that one of several judgment creditors may elect an appraiser to appraise land to satisfy a joint execution in their favor.

It is farther objected, that this extent is not valid because one of the appraisers was not sworn. But the form of the oath to be taken by appraisers is not prescribed by the statute, and upon the principles of the common law no particular form is essential to an oath ; but as the purpose of it is to bind the conscience, every man of every religion should be bound by that form, which he himself thinks will bind his conscience most. Cowper, 389. We are therefore of opinion that this objection cannot prevail, and that there must be

Judgment for the demandants.