2 Aik. 148 | Vt. | 1826
delivered the following opinion of the Court.
It was necessary for the publick prosecutor to give in evidence the writ upon which the boat was attached; for by that alone was the officer commissioned to take the property, and by that it was held in the custody of the law. The writ, together with the officer’s certificate or return thereon, was offered in evidence, and from the case, it appears to have been rejected, because the return did not show the boat to have been seized thereon. In examining the record, we find the officer omitted in his certificate, or return endorsed upon the process, to describe the property attached ; in this it was defective. Parol testimony was then admitted, (though objected to by the counsel for the defendant) to show the attachment of the boat. No question was made in relation to the process, but it was contended, that by the officer’s return, endorsed thereon, it must appear that the boat was taken, and that oral testimony could not be received to supply the defect. There are cases in which no return is supposed to exist, and therefore none can be shown. The proceedings or doings of the officer are to be endorsed upon the process by the return-day, and if then made, he has performed his duty.
If before the return-day the property attached is released by consent of the parties, either by a settlement of the suit, or otherwise, there is no necessity of making a return, and the officer, in such case, or any person under him, may justify by the writ alone, without showing the return.
If the trial had been before the return-day, and before the officer had endorsed his return, there can be no doubt the attachment of the property might have been shown by parol. And we know of no principle upon which, if the officer should have neglected to make return, where the interest of third persons or the pub-lick is concerned, that the proceeding may not be shown by parol. The officer himself may justify, under final process, without showing a return, although it is his duty to make return. (Camp. 18. — 10 East. 73. — 8 Johns. R. 53.) But as the process in this case was returned, and a return endorsed, it is insisted it is the only evidence, is conclusive, and that it cannot be contradicted, varied, or enlarged by parol. It is true the return of the officer upon process is conclusive in the suit, and cannot, by the parties, be contradicted, &c. Farther than this, it is only prima facie, and has never been held conclusive upon the rights of third persons ; that is, such as are neither parties or privies. Where a fact stated in the return comes incidentally in question, the return is but prima facie evidence of the fact; and if in this case the officer had returned the fact of having attached the boat, the defendants would not have been concluded thereby, but would have been permitted to contradict it, by showing the sheriff never did seize or take it. This right must be mutual. To be convicted of a crime by such evidence as an officer’s return, without the privilege of showing it false, would be dangerous to the liberties of the citizens. Even in the case of rescue, if the proceeding is by indictment, the defendant may show the return false. These principles we believe have obtained in our courts and are supported by authority. — Philip's Ev. 313. — 11 East. 297. — 14 Johns. 481-2 - 4 Bac. 399. — 6 Com. Dig. Return, G.
The motion for a new trial must be overruled, and the Court will proceed to render judgment upon the verdict.
