Haynes v. Small

[16] The opinion of the Court, Shepley J. taking no part in the decision, having been employed in trying jury cases at the time of the argument, was by Whitman C. J. — Nothing is better settled than that an officer, making a return of his doings upon a writ, is not allowed to gainsay the truth of it. In the case set forth in the plaintiff’s writ, one Shaw, a deputy of the defendant, who was sheriff of Penobscot, is alleged to have returned on a writ, in favor of the plaintiff and against Morse & al. that he had attached one hundred and seventy-five yards of broadcloth. The defendant proposes to show, in defence, that his deputy made a mistake ; and that he in fact attached only thirty yards, which had been duly applied towards the discharge of the execution issued on a judgment rendered in said suit. That the thirty yards had been so applied was not questioned. The only controversy was as to the residue. Officers ought to know what they attach; and to be holden to exactness and precision in making their returns. Neither the debtor nor the creditor would be safe if it were otherwise. And it will be well that the law should be so promulgated and understood. An officer, in such cases, is entrusted with great power. He may seize another man’s property, without the presence of witnesses, whether it be goods in a store or elsewhere ; and safety only lies in holding him to a strict, minute and particular account. To hold that he may, indifferently, make return of his doings at fandom, and afterwards be permitted to show, that what he actually did was entirely different, would be opening a door to infinite laxity and fraud, and mischiefs incalculable. Suppose the deputy had returned, that he had attached one hundred and seventy-five sheep, he might as well be permitted to show, .that, by mistake, there were but thirty of them. It was the duty of the officer to have measured the cloth attached, or, in some other way, to have ascertained precisely what he had attached. Such a mistake as is here pretended could have arisen only from the grossest negligence, to which it would be a disgrace to the law to afford its countenance. [17] The principle, to which the counsel for the defendant attempts to assimilate this case, that the officer, notwithstanding his return, may show the property attached to belong to some one else, and not to the debtor, to excuse or justify himself for not levying upon it, on execution, is altogether different. It would not be contradicting his return in a matter of fact in which he was bound to possess himself of knowledge, nor is his return conclusive upon any one as to the ownership of property attached. Exceptions overruled —judgment on the verdict,