Cooper v. Ingalls

5 Vt. 508 | Vt. | 1833

The opinion of the Court was delivered by

Williams, J.

In this case the plaintiff complains of the defendant, for making a false return on a writ of execution, in favor of James Steel, against one Russel Frizzle, in-consequence of which the plaintiff, who was bail for Frizzle, was compelled to pay the amount of the execution.

The first question to which our attention has been called arises on the plea of abatement, on which a judgement of respondeas ouster was rendered, to which judgement the defendant excepted. The defect in the writ set forth in the plea, is that it is not directed to any constable in county, according to the provisions of the statute extending the jurisdiction of constables, passed in 1831.

The judiciary act required that all writs should be directed to the Sheriff of the County, his deputy or either constable of the town where the service was to be made.— The statute of 1831, requires that writs returnable before a Justice of the Peace, shall be directed to the Sheriff, his deputy or any constable of the County, and provides that the first constable of any town, when the town consent, may serve such writs in any town in the County. The direction in the writ, is the precept to the officer, and his authority for making service. If a writ is directed to an officer, who may, and does serve it, it is no cause of abatement that it was not directed to another officer, who might have served it. This writ was directed to the constable of Canaan, who served the same within his precinct, and who was by law authorized to serve the same. This was a sufficient service to hold the defendant to appear. The judgement of the County Court, therefore, overruling the plea, was correct.

The next question is, whether the charge of the Court on the evidence before them was right, or whether they should have been charged as requested by the defendant. The case as presented by the evidence, detailed in the bill of exceptions, shews a great want of moral rectitude in the conduct of the defendant, at least. Whether the facts was so, it were for the jury to determine from the evidence before them. We are only to enquire whether the Court erred in their charge to the jury,

The first question raised, is whether the return, having been made on the execution, after it had run out in the hands of the officer, and after the return day thereof had expired, was false. That a return of non est inventus made on an execution, after the return day thereof Had expired, with a view to charge the bail taken on mesne process, is a false return, we have no manner of doubt; and although it might cause no injury to any one, to antedate such a return when there was no bail taken, or to antedate a return in other cases which might be mentioned; yet, when there is bail, and when the tendency of such antedating, is to charge them by making the execution appear to have been returned in its life, when it was not, it is not only an injury for which the person who has suffered damage thereby, may recover on an action brought therefor, but it is worthy of consideration, whether it does not amount to something more than a civil injury. Antedating a deed with an intent to defeat a former deed of the same party, and for the purposes of fraud, has been adjudged to be a forgery. There is no doubt that the charge of the Court was right, when they told the jury that if the return was made after the execution had expired and was antedated, it was a false return.

There is as little doubt that the views of the County Court was equally correct, in not acceding to the second request of the defendants counsel. Indeed, I was not a little surprised at the argument which was here insisted on, that if the return was false, the plaintiff sustained no injury, because he might have successfully defended the scire facias which has been brought against him, that the justice who rendered judgement against the present plaintiff, was the one who had caused the injury. The counsel for the defendant have urged, apparently with some degree of confidence, that the action is brought here because the person who instituted the suit against the plaintiff as bail for Frizzle, persuaded the justice to render a wrong judgement.

It is true, that the plaintiff has sustained an injury by this judgement, and that if the same facts which were disclosed on this trial, had been made to appear before the justice who gave judgement on the scire facias, no such judgement ought to have been given. It is also true, that no such judgement would have been given, nor any suit commenced against this plaintiff, if it had not have been for the false return made by the defendant.

It has been determined by this Court in the case of Turner vs. Lowry, 2d, Aiken 72; that to charge bail, the officer who has a writ of execution for service, must return the same into the office from which it issued, with a regular return of non est inventus, within the life ofi the execution. Although it maybe true, that the plaintiff, Cooper, was discharged as bail for Frizzle,.by the neglect of the defendant to return the execution within the life of it j "and might, if he had knowledge of the fact, have successfully resisted a recovery against himself on the scire facias. Yet, as the defendant under color of a return made officially by him, endeavored to conceal this fact from the plaintiff, and made the execution appear to have been returned in the life of it, when in fact it was not returned until some days after, he thereby occasioned the injury of which the plaintiff complains, and it is not for him to say, that if the plaintiff had sooner discovered and proved the misfeas-' anee of which he was guilty, the injury would have been less. We are entirely satisfied with the charge of the Court and the verdict of the jury.

The judgement of the County Court is therefore affirmed.