13 Me. 245 | Me. | 1836
After a continuance, the opinion of the Court was drawn up by
We are of opinion, that the Court of Common Pleas had the power after verdict, to allow an amendment of the declaration, as to the term when the judgment in question was rendered. We think it was justified, under the authority of the case of McLellan v. Crofton, 6 Greenl. 307.
The execution, which issued on the judgment, and the return thereon of Bachelder, the officer to whom it was delivered, is made part of this case. He sets forth in his return, that on the sixteenth day of May, 1834, which was within thirty days after the rendition of judgment, having the execution then in his hands, he made a demand upon Thing, the deputy of the defendants’ testator, w'ho had attached the goods upon the original writ. This was a return made by the officer, in the regular discharge of bis official duty.
In Gyfford v. Woodgate et al. 11 East, 297, a return of the sheriff on a fieri facias was read in evidence, which it was insisted ought not to affect the plaintiff, who was no party to the sheriff’s return; but the court held, that it was prim.a facie evidence of the facts stated therein, upon the ground, that faith was to be given to the official act of a public officer, like the sheriff,
Upon exceptions, either in this court or in the Common Pleas, the court are to do therein, what to law and justice may appertain. We are of opinion, that the return of the officer, which is before us, was prima evidence of a seasonable demand upon Thing, although the Judge below ruled otherwise. We find then in the case competent evidence of a demand upon Thing, without the testimony of the officer in support of his return, which was unnecessary. We are relieved then from the necessity of deciding the questions raised, whether the officer was interested or not, or whether if he was, his interest was removed, before his testimony was received. Rejecting that testimony altogether, the plaintiffs have supported their action; and the verdict in their favor is justified.
Exceptions overruled.