2 N.H. 315 | Superior Court of New Hampshire | 1820
delivered the opinion ol * he conn,
TiiC dtrieminat it as moved the court to arre-.t the ¡urnm n in this case, and the motion must prevail, unless ft cry 1 itt essential to a good title is either expressly stab d, ui necessarily implied from what is stated in the declaration. The action is case fora false return. The very gist of it is the damage resulting from the falsity of the return. The plaintiff has alleged in his declaration that the return is false, but hits alleged no particular damage by him sustained by reason of the falsity of it. It was not then competent for him to offer to the jury evidence of any special damage ; and if damages must not necessarily be intended to have resulted from the falsity of the return, the judgment must be arrested. 1 Chitt. Pl. 389.—11 John. 141, Pangburn vs. Ramsay.
We are now considering the declaration after a verdict, and every intendment is to be made in its favor. But after having considered it with the utmost attention, we are of opinion that its defects are beyond the reach of any legal in-tendment. It is by no means to be intended that the plaintiff has sustained damages because the return is false. The plaintiff, might have refused to choose an appraiser, and the appraiser might on that account have been chosen by the defendant,. If such were the fact, the plaintiff has sustained no damage, for if the truth had been returned, the extent would have been equally valid. So the officer may have returned by mistake the appraiser chosen by the creditor, as chosen by the debtor, and vice versa, which mistake could not in the least prejudice the plaintiff. The case of Boles vs. Lassells, (1) is an authority to shew that without some damage the action cannot be maintained. In that case the sheriff, haying arrested a debtor, returned that he was sick in prison when he had in fact let him go at large upon bail. In an action for this false return, the court said “ when « he executed the writ and took bond according to the stat- « ute, and returned that he took him, it is not material to the “ plaintiff, though he returns languidus,” «fee.
Judgment arrested.