16 Ala. 605 | Ala. | 1849
The deputy sheriff Austin, who levied the attachment, having been released by his principal from all liability growing out of his acts, we can conceive of no objection to his competency as a witness, — none has been started here, although the question is made upon the record,
In Watson v. Watson, 6 Conn. Rep. 334, it is admitted to be a general rule of the common law, that the return of a sheriff on an execution, except in relation to himself, when sued, is absolutely conclusive; and the reason is said to be, that he is a sworn officer to whom the law gives credit. The return of mesne process falls within the same reason and is governed by the rule. Yet the court refuse to recognise the English common law in this respect, as applicable in Connecticut.
As a general rule, the return of a sheriff upon returnable process i's only prima fade evidence against strangers. — 3 Phil. Ev. C. & H. notes 1085. Between parties to the process or their privies, it is usually conclusive, has already been conceded. — Id. 1087. And such is its effect, in general against the officer making it — Id. 1083: but the case of Lewis v. Blair, ut supra, shows that the rul.e- is not universal. Another exception exists where an action is brought against an officer for not selling property levied on by him under an attachment and returned as the property of the debtor; for notwithstand
In Boynton v. Willard, 10 Pick. Rep. 166, it is strongly intimated, that a return by an officer, that he attached certain property, is not conclusive evidence against him in trespass that he took it, so as to render him liable therefor, and preclude him as against the defendant in the writ from proving the contrary. And other cases are stated by the court in which it is supposed that his return is inconclusive against him. See Figh & Blue v. Mead, 4 Ala. Rep. 279; Clarke v. Gary, 11 Ala. Rep. 98.
In Evans v. Davis, 3 B. Monroe’s Rep. 344, 1he general rule was admitted that a sheriff is estopped from controverting facts embraced in his return, and which were within the sphere and connected with the discharge of his duty; but it was held that a sheriff when sued as trespasser for the seizure of property under an execution, may prove facts dehors his return and not inconsistent therewith. In Lawson v. Main, 4 Ark. Rep. 184, it was said, the return of a sheriff is an official, ministerial act, and forms a part of the record of the court, which can neither be impeached or questioned aliunde by him. He will be allowed upon application to the court to amend it; but this privilege is given upon the principle that the truth of the facts ought to appear of record, and the sheriff having been mistaken in regard to them, ought to be permitted to amend his return. But he cannot be permitted to discharge himself from a liability which his unaltered return would fix upon him. So it has been said, that “ nothing is better settled than that an officer making a return of his doings upon a writ is not allowed to gainsay the truth'it was therefore held, that where a deputy of the defendant, who was sheriff, returned on a w,rit that he had u attached one hundred and seventy-five yards of broad-cloth, the property of the within named defendant, it was not competent for him, in an action for not pro
In Baker v. McDuffie, 23 Wend. Rep. 289, it was decided that a sheriff is generally concluded by his return upon process from gainsaying its truth collaterally ; if the return be incorrect, it must be reformed by a direct proceeding, so that a ■full explanation may be given. But it was said that the return was only conclusive when set up by a party who may claim something under it; if others rely upon it as the sheriff’s admission, it is but prima fade evidence, and may be explained. See Kendall v. White, 1 Shep. Rep. 245; Sawyer v. Curtis, 2 Ashm. Rep. 127; Mentz v. Hamman, 5 Whar. Rep. 150; also, 1 Lord Raymond’s Rep. 184; Dalton’s Sh'ff, 189; Wats. Sh’ff 72; Bridges v. Walford, 6 M. & S. Rep. 42.
The courts of the States have been very liberal in permitting officers to amend their returns, not only at their own instance but even after their death, on' motion of their representatives; amendments have also been allowed upon the application of a purchaser or the parties. — Fowble v. Raybergh, 4 Ham. Rep. 45; Clarke v. Belmear, 1 Gill, & Johns. Rep. 443, Williams v. Rodgers, 5 Johns. Rep. 162. See 3 Phil. Ev. C. & H’s notes 1095, et seq. In the exercise of this salutary power an officer has been permitted to- amend his return of a writ, though several years had elapsed, Thatcher v. Miller, 11 Mass. Rep. 413; Rucker v. Harrison, 6 Munf. Rep. 181. See also Irvine v. Scobee, 5 Litt. Rep. 70; Boyce v. Watson 3 J. J. Marsh. Rep. 500; Woodward v. Harbin 4 Ala. Rep. 534; Gilman v. Stetson 4 Shep. Rep. 124; Planters’ Bank v. Walker, 3 S. & Marsh. Rep. 409; Johnson v. Day, 17 Pick. Rep. 106; Brandon v. Snow & Cunningham, 2 Stewart’s Rep. 255.
It is not a conclusive objection to the exercise of this salutary po-wer of amendment, that a suit has been instituted against the officer, seeking to charge him upon the ground that his return subjects him to liability. Under such circumstances, it was adjudged competent to allow the return to be amended. — Hodges, et al. v. Leaird, 10 Ala. Rep, 678. It was however conpeded that in such case, the court might impose .terms upon the officer, and we will add that it should certain
But it has been often held, that a sheriff should not be permitted to amend his return to the prejudice of third persons; and if an amendment is allowed, it shall not affect rights which they have acquired without notice. Nor will the return of mesne process be amended after the term to which it is made, and after a judgment by default has been rendered upon the supposition that it was correct, if the effect will be to avoid the judgment. — Davidson v. Cowan, 1 Dev. Rep. 304; Means v. Osgood, 7 Greenl. Rep. 146; Bowman v. Stark, 6 N. Hamp. Rep. 459; Emerson v. Upton, 9 Pick. Rep. 167; Fairfield v. Paine, 10 Shp. Rep. 498; Hughes v. Lapice, 5 Smedes & M. Rep. 451; Berry v. Spear, 1 Shep. Rep. 187; Watkins, et al. v. Gayle, 4 Ala. Rep. 153; McGehee v. McGehee, 8 ib. 86.
•If the principles we have stated and the authorities by which they are supported are well founded, it is clearly inferrable that it is within the competency of the court, to which the attachment was returned, to permit the levy endorsed to be amended, so as correctly to indicate the property levied on. And this we have seen is permissible, notwithstanding an action has been instituted upon the hypothesis that the return states the truth; but the court may as we have seen impose terms upon the sheriff, or rather so exercise its power, as not to subject the plaintiff to costs, if taking the record as it stands he would be entitled to recover. We have taken this view of the matter, that it may be seen that a sheriff whq by mistake makes a false return is not remediless, and what course he should pursue to correct it and prevent injury to himself.
It must be admitted that the rule which inhibils the sheriff from falsifying his return is not definitely settled. It rests upon the arbitrary principle that it is matter of record, and so long as it remains unaltered, it cannot be gainsayed by proof. In point of moral justice it would seem to be unimportant whether the return should be first amended by permission of the court, and then adduced as evidence of the fact it imports, or whether proof should be offered to the jury to show its falsi