11 Me. 177 | Me. | 1834
Two questions are presented on the report of the Judge, the most important of which arises out of the objection to the admission to the jury of a copy of the execution, by virtue of which the defendant, Haskell, seised the goods of the plaintiff and sold them. By law the original execution should have been, not only under the hand of the magistrate who took the recognizance for the debt, but also under seal. Such however was not the fact. Since the commencement of this action, the Justice, who was also the counsel for the defendant, placed a seal on the execution, while the cause was pending in the Court of Common Pleas. If no seal had ever been affixed to the execution, it is clear that the same could have furnished no defence for the defendants. The question then, is whether the Justice had any legal right to affix the seal as he did, and whether it legalized the precept and the act done under it. In the case of Sawyer ex parte, cited in the argument, this Court permitted the clerk to affix the seal of the Court to an execution, after the same had been extended on real estate; and this is relied on as •an authority for the act of the Justice, in the present case. No other authority has been cited. We have found a case in 5 Wend. 276, Toof v. Bentley, in which a Justice of the Peace affixed a seal to an execution which he had issued, after the same had -been executed; but the Court decided that he had no legal right so to do. In that case the Justice had acted judicially in the cause, and rendered the judgment on which the execution was issued; but in the case, before us, the Justice never acted ju
New trial granted.