Woods v. Blodgett

| Superior Court of New Hampshire | Jul 15, 1844

Parker, C. J.

The certificate of the magistrates in this case is only primd facie evidence that notice was given to the credit- or. This is a matter about which there has been a difference of views, as well here as elsewhere. In the case, 2 N. H. Rep. 421, Flanders vs. Thompson, it was held that the certificate was not conclusive evidence of notice, and the judge who drew up the opinion suggested that it could hardly bo regarded as prima fade evidence. In Osgood vs. Hutchins, 6 N. H. Rep. 374, the certificate was held to bo primá facie evidence, for reasons which are satisfactory; and in delivering the opinion, I suggested, on the authority of Haskell vs. Haven, 3 Pick. 404, that it might, perhaps, be regarded as conclusive. That point, however, was expressly waived, and left for farther consideration. The supreme court in Maine followed the doctrine of Haskell vs. Haven ; but the supreme court in Massachusetts, which made the decision, have held the rule somewhat different in a subsequent case, 20 Pick. 436, Slasson vs. Brown. The decisions in Vermont it is understood hold the certificate conclusive on their statute. Upon full consideration of our statute, wo are of opinion that the true rule is indicated in the decisions already made hero; the certificate is primá facie evidence, but not conclusive.

There is no provision that the magistrates shall examine and adjudge. They are to certify, and effect should be given to their certificate. The certificate ought not to be made but upon examination ; still, as they are not required in terms to examine evidence, and adjudicate upon it, the certificate does not seem to have the character of a judgment. The matter is not one of which the magistrates have knowledge. It is only on the ground that they have tried the matter on the evidence, and have found the fact that the certificate should bo conclusive. But, as they are not required in terms to examine and determine the fact, it is very evident that the certificate would often bo made upon mere primá fade evidence of the slightest kind. And in point of fact, in every case whore there is no appearance, the evidence of notice and the examination must be wdiolly exparte.

Under these circumstances, we think we give the fair and full effect and credit to the certificate to which it is entitled, when it is held primá fade evidence of a fact stated which the magistrates did not know. ¡

If the notice is served by a deputy sheriff, his return, in the absence of fraud, is conclusive evidence of the fact of notice. 9 N. H. Rep. 76, Brown vs. Davis. He is a public officer, and must have knowledge of the fact, and it is his duty to return it. It is better evidence in fact than the certificate of the magistrates, because he has knowledge. But notice may be served by a person who is hot a sworn officer. It was so in this case. There is the affidavit of the person who makes the return that he performed the service; but as a mere affidavit it may be controverted, for which reason there must be a new trial.

The objection to the amendment to the indorsement cannot be sustained. The plaintiff, living out of the State, was not entitled to indorse his writ; and the indorsement was, therefore, binding upon the attorney without any amendment. See the opinion of this court in Pettengill vs. McGregor, [12 N. H. Rep. 179, 192.]

Verdict set aside.