Keyes v. Chapman

5 Conn. 169 | Conn. | 1823

Hosmer Ch. J.

The cases which have been cited, relative to the common law doctrine, in respect of erasures, have no bearing on the enquiry before the court, regarding the construction of a statute. As little relevancy is there in the determinations to the point, that the direction of an execution to an officer cannot be made by the party. This is an official act of the clerk, who issues the execution; and to render it applicable there must first be a begging of the question, that is raised for discussion. Every execution is, by the statute, made returnable within sixty days front its date, or to the next court, at the election of him who prays it out Stat. 55. tit. 2. s. 73. The time when the election must be made, is not specified; and it is no unreasonable construction of a law so indefinite, that the creditor, who has taken out his execution in the usual form, returnable within sixty days, may enlarge the period of return, at his pleasure.

Were the enquiry before the court res nova, it would scarcely be worth the discussion, whether the expression “ within sixty days” should he expunged, by the clerk of the court, or by the creditor. By law, the clerk cannot, by virtue of his official power, make the execution returnable otherwise than within sixty days. Should the creditor elect, that it he returnable to the next court, he must communicate his choice to the clerk, and the act of the latter will be the act of his agent of one who cannot act, except by his direction. Had the statute required the clerk to make a record of the manner in which the execution is issued, some security from fraud might arise, by his performance of the act in question. But as on this subject, there is no legal obligation upon him, it is of no essential importance, whether the erasure of the expression “ within sixty days,” which makes the execution returnable to the next court, is done by him, or another person.

It has been a practice, very general, and, for aught I know, universal, for the execution creditor, to expunge the words, within sixty days,” and thus to prolong the return of the execution, to the next court; and from this proceeding, I have never heard that any inconvenience has arisen. The construction of the law, which the above practice implies, was probably cotemporaneous with the statute; and at this time, to adopt a different exposition, would, probably, subvert many titles, and produce incalculable mischief. Nothing short of inconveniences, the most palpable, would warrant a deviation from the above practical construction. As no such inconveniences exist, and the most pregnant disadvantages would result from the exposition of the act, as now contended for, I would adhere to the construction, that has been sanctioned by usage.

The other Judges were of the same opinion.

New trial not to be granted.