2 Denio 633 | N.Y. Sup. Ct. | 1846
When this case was formerly before the court, (6 Hill, 597,) it was held that the defendant’s entry of the plaintiff’s house was lawful, provided he had previously levied upon property therein. The only material question now is, whether the endorsement on the writ offt. fa. and the schedule annexed were admissible as evidence in favor of the defendant, upon the fact of such, a levy having been made on the 25th of December. Such a levy is therein stated to hxva been made; but the objection is that these statements were sun
I think this objection eannot.be sustained. A writ of Ji.fa. commands the sheriff to make the money of the goods and chattels of the party, against whom it issued, or in other words to levy upon and sell the property of the debtor, and thus make the money to satisfy the debt.- It was the sheriff’s duty.in this case to levy on the property of the present plaintiff. This the sheriff was commanded to do ; and when done, he might with propriety endorse the fact on the process in his hands. A sheriff’s return to process is but a statement of what Iras been done in obedience to its command, or of some cause for not having obeyed its mandates. (Sewell's Law of Sheriff, 384; Browning v. Hanford, 7 Hill, 120.) Every act done by him in the course of the execution of the writ, every step taken, may be endorsed, as they occur. First the levy—next the advertisement, and then the sale—each in its order is an official act, and each may thus be endorsed as they are successively performed. In the aggregate these statements will furnish a complete response by the officer, and a full return to the writ; and each part, as made, is so far an official return. In practice it is certainly true, that sheriffs are not particular to note each step taken in the course of executing a writ. A general return at the close is usually made, and that is all which may be material between the parties to the process, and ordinarily all which is material to any one. Still, it would be strictly within the limits of the official duty of .the sheriff, to note each step as taken in the execution of process in his hands; and as each is an official act done in obedience to a lawful command, the law makes his official statement of what he so does, evidence in his favor. The admission of statements made by a party, as evidence in his favor, in any case, is a departure from the general rule, of law on the subject. But the exception rests on peculiar reasons ; the statement of the officer is official, and the fact recorded was his official act, done in obedience to a legal requirement. An officer cannot be expected to have a witness present at all times, when in the performance of his public duty, and some confidence must
Nor should the rule be limited to such returns as have been filed and thus become matters of record. The statement is evidence because it is a return, so far, of what the officer has done under the command of the writ, and not because it is such a statement placed on the files of the court. It may be more convincing to a jury when it appears to have been filed, and thus placed beyond the power of the officer to suppress or mutilate; but that does not touch the question of its competency, however strongly, it may bear upon its credibility and force. It may often be necessary for an officer to prove a fact thus verified by him; as a levy made before the return day of the process under the authority of which he acted, and before its complete execution. He may be sued in trespass for the levy and seizure, and 'the case may be pressed to a trial at an early day. Why should not his endorsement of a levy on process, still in his hands, be evidence for him in such a case, as it is conceded that it would be if the process had already been returned? I cannot doubt that it would be; and for myself, I should rely much more upon successive statements made by the officer, as he advanced, step by step, in the execution of process, than upon any return in gross, which he might make at the close of the business.
New trial denied.
