Taylor v. Emery

Dec 15, 1844
Versions:
Gilchrist, J.

It was decided in Whittier v. Varney, 10 N. H. 291, that an officer’s return of an execution might be amended, notwithstanding the intervening rights of other parties, if the return contain sufficient matter to indicate that in making the extent all the requisitions of the statute were probably complied with. The principle of that case is applicable to the return of an attachment; but in the present instance there is a difficulty in making the application. If the officer were now to amend his return so as to denote the hour, according to the motion, the amendment according to the doctrine of the case cited, *361relating back to the commencement, then the copy left with the town clerk would not be a true copy; and the variance might have been available to the party claiming under the mortgage, in another form. The motion is for that cause denied.

In the form in which the return stands, there is no presumption in law that it was made at an earlier hour than five o’clock in the afternoon, the time when the record of the mortgage is shown to have been made. Of course the demandant does not show that his title was of earlier inception than the tenant’s, whose possession in the absence of such proof must prevail.

Plaintiff nonsuit.