Watson v. Watson

6 Conn. 334 | Conn. | 1827

Hosmer, Ch. J.

The jury, on the legal presumption that they exercised their jurisdiction soundly, must necessarily have found, that the return of the officer was untrue; that the defendant refused to choose an appraiser; and that, without his assent or concurrence, the appraisers were exclusively appointed by the creditor.

Whether the testimony adduced by the defendant, was competent, and if so, sufficient to invalidate the return on the executions, are the only questions presented by the motion.

It is a general rule of the English common law, that the return of a sheriff on an execution, except in relation to himself when sued, is absolutely conclusive. 19 Vin. Abr. 196, 199. Com. Dig. tit. Retorn. G. The reason assigned for not admitting an averment against the return of the sheriff, is, that he is a sworn officer, to whom the law gives credit. 19 Vin. Abr. 196. 201.

The rule of common law relative to the return of a sheriff on mesne process, is the same; and it necessarily must be, as it falls within the same reason. 19 Vin. Abr. 197, 199, 201, 202. Flud v. Penington, Cro. Eliz. 872. Stayton v. Chester, 4 Mass. Rep. 478. Estabrook v. Hapgood, exr. 10 Mass. Rep. 313.

In Metcalf v. Gillett, 5 Conn. Rep. 400. in view of the common law doctrine referred to, an obiter opinion was expressed, that an officer’s return on an execution can neither be extended nor diminished by parol. It is unnecessary to consider how far this opinion was designed to extend. It is sufficient to remark, that the general question regarding the conclusiveness of an officer’s return, is now, for the first time, brought directly before the court; and that it demands a careful and deliberate decision.

To every practising lawyer it is familiar, that the return of a sheriff on mesne process, is held, by the courts in this state, to be prima facie evidence only. This, so far as my knowledge extends, has been the ancient and invariable doctrine of our courts, and conclusively settles the law of Connecticut on this subject. For this departure from the English common law, I am unable to assign the precise reason. I presume it must have been believed, that the prima facie evidence only allowed to a return, is a sufficient security to the rights of the people, and necessary to prevent the perpetration of irreparable wrong. These principles derive support from the infrequent questions arising on the falsity of returns, and the peculiar condition of the state. The service of process, both mesne and final, is committed to constables, as well as to sheriffs; and of the former it is well known, that some of them are irresponsible men, and that all of them exercise their official duties without the collateral security of sureties. These thoughts I have suggested, as comprising the reasons that probably induced the adoption, by our courts, of the above-mentioned rule; but whether they are correct or not, is of little importance. The rule has been settled, by long, frequent and familiar practice ; and is not now to be questioned.

The inquiry arises, what is the rule relative to returns on final process. On a principle of entire analogy, the answer is, the same that it is, in returns on mesne process. The sheriff, or other legal officer, in both cases, is entitled to the same regard ; he is equally, at all times, a sworn officer, of the same credit; and the interests of private justice and public convenience, are precisely the same. Here, as in Wesiminster-Hall, the returns on final and mesne process are subject to the same rule. It follows necessarily, that the return of a legal officer, whether on mesne or final process, is prima facie evidence only, and liable to be disproved.

The affirmation in the return on the executions in question, that “ the appraisers were mutually agreed on, by the creditor and debtor,” was indispensable to confer on Watson, the creditor, any legal right to the demanded premises; and if it is untrue, he had no title. Now, the verdict of the jury implies, that the execution debtor refused to choose an appraiser ; that the creditor and debtor did not concur in the choice of them ; and that the creditor, without the concurrence of the debtor, made the appointment. All this must have been known to the sheriff’s deputy; and his return on the executions, is manifestly untrue. That there was a combination between the creditor and officer, in the defective service of the executions and in the returns made upon them, admits of no reasonable doubt.

It is almost superfluous to say, that by reason of the illegal acts specified, the plaintiffs have no title.

The other Judges were of the same opinion.

New trial not to be granted.