Wyer v. Andrews

| Me. | May 15, 1836

After a continuance for advisement, the opinion of the Court was drawn up by

Emery J.

An execution issued upon the judgment declared on, returnable on the 4th Tuesday of December, 1828, was placed in the hands of Jonas Mason, a deputy-sheriff of the county of Lincoln, for service and return. The execution bore date Sept. 29, 1828. On the back of that execution is written, Lincoln ss. January 1, 1829. I return this execution in no part satisfied.

Jonas Mason, Deputy-Sheriff.

At the opening of the case the deposition of this Mr. Mason was proffered to shew that this return was in fact made in July, 1834 ; and that the whole amount of said execution and his fees were paid to him by said Andrews, while it remained in said Mason’s hands, but some time after said execution was returnable.

The deposition also details a conversation with John Ruggles, Esq. and the statement made by said Ruggles, in July, 1834.

This deposition was rejected by the Judge. And the question is, whether it ought to have been admitted. No time need be spent in deciding, that the statement alleged to have been made by Mr. Ruggles is inadmissible, as it is only hearsay, and he is alive.

It remains to inquire whether the residue should have been received.

The sheriff is obliged by the duty of his office to execute every process directed to him by lawful authority, with the utmost expedition, or as soon after he receives it, as the nature of tbe thing will admit of. And there cannot be a surer rule for him to go by, than a strict observance of what is enjoined upon him by the writ. He is not to shew favor, nor be guilty of unreasonable delay, nor be guilty of oppression, nor make use of greater force or violence than the thing requires.

He cannot arrest before the writ issues. Nor can he execute it after the return, not even the very next day after. Sid. 229, Ellis v. Jackson; unless the levy be commenced before the precept is returnable.

A return ought to shew obedience to the writ, or a good excuse for omission. 6 Com. Dig. Retorn, D. 1. As he may say, quod breve adeo tarde venit, quod exequi non poiuit.

No averment lies against any returns of writs, that are definitive to the trial of the thing returned, as the return of a sheiiff upon his writs, &c. But it may be, where such are not definitive. Dyer, 348; 8 Rep. 121; 2 Cro. 13.

If the return be false in substance though true in words an action lies against tbe sheriff. Douglass, 159.

And a sheriff cannot make a return contrary to his former return on record. 6 Com. Dig. Retorn, E. 4.

And generally he is not to be let into parol proof to alter the state of facts as returned. Amendments in proper time and manner he may make, and he may shew that a mistake was committed, as to ownership of property, and in some other cases.

In Purington v. Coring, 7 Mass. 388, the action was trespass against a deputy-sheriff. He sold the goods after advertising them 24 hours, and as the report is, he proposed to prove by parol, that he did in fact advertise four days, probably a mistake, instead of 48 hours.

The Court say, the officer’s return must be in writing, and when made upon his precept, and regularly returned, it must be presumed to be true, until the falsity of it be proved. If parol evidence was admissible, there would be great danger of fraud and perjury. If the officer has acted legally, he is liable to no inconvenience in returning truly his proceedings. And if he has not, he ought not to be protected by a false return, whether in writing or by parol.

In a 3 Mass. R. 349, Wakefield v. Lithgow, it is said by the Court, that the money, which the sheriff received after the return day, he had no legal authority to receive by virtue of the execution. True he might detain it against the debtor to indemnify himself against his exposure to damages from the plaintiff’s claim. But unless the plaintiff accepts the money, and so ratifies the acts of the deputy, the matter is to be arranged between the debtor and the officer. But the officer upon principles of law is not to be heard to contradict or invalidate his own return, made under oath, by his own testimony. The deposition therefore was rightly rejected.

Nor can we give countenance to the offer to prove that said Mason was ageut of the plaintiffs and had authority to act in the premises and receive for the plaintiff payment of said judgment, not however by shewing any direct authority from the plaintiffs constituting Mason their agent, but by calling sheriffs, deputy-sheriffs, and counsellors to prove officers situated, as Mason was, are considered, as having such authority.

Such estimation of the authority of officers is calculated to encourage laches in their duty. And to let in that description of proof of authority from the plaintiffs without their own concurrence or acts, would be subversive of the wholesome rules of law. The default of the defendant entered in this action must stand.