Bruce v. Holden

Morton J. delivered the opinion of the Court. This is an action of trespass for taking and carrying away certain cattle. The defendant admits the taking, and alleges in justification, that the cattle were going at large in the public highway, and that for that cause he, as field-driver, took them up and impounded them in the town pound. The defendant, having proved his own election and that of the pound-keeper, as the first step in his defence, offered m evidence his own certificate to the pound-keeper of the impounding and the cause thereof, with his own claim for fees and penalties. A question arose before the Common Pleas as to the effect of this evidence. The defendant contended that this certificate was prima facie evidence of the facts stated in it, and that it contained enough to constitute a legal justification — 189 — But “ the court ruled that the defendant was bound to prove, by other evidence, the truth of the material facts stated in said paper, in order to justify the said taking and impounding.” And the question before us is, whether this ruling be correct or not. A field-driver is a sworn officer. And the general rule is, that the returns and certificates of sworn officers made in the discharge of their duty, are evidence of the facts contained in them. In most cases they import absolute verity and cannot be controverted. Thus the certificates of recording officers, as to the record and copies of instruments and documents, and other official acts, within their province, are conclusive. Kinnersley v. Orpe, 1 Doug. 56 ; 1 Stark. Ev. 173 ; Buller’s N. P. 229 ; Oakes v. Hill, 14 Pick. 442 ; Saxton v. Nimms, 14 Mass. R. 315 ; Thayer v. Stearns, 1 Pick. 109 ; Briggs v. Murdock, 13 Pick. 305 ; Commonwealth v. Phillips, 11 Pick. 28. So the returns of sheriffs, coroners and other returning officers, are always evidence, and, when they are not parties, are conclusive evidence. Slayton v. Chester, 4 Mass. R. 478 ; Bott v. Burnell, 9 Mass. R. 96 ; Estabrook v. Hapgood, 10 Mass. R. 313 ; Bott v. Burnell, 11 Mass. R. 163 ; Bean v. Parker, 17 Mass. R. 591. Where officers are parties either claiming or justifying under their own official acts, their returns must be received as evidence. Otherwise it would be impossible, in most cases, to prove an attachment of property on mesne process, or its seizure on execution, or the arrest of the body. The officer might produce his precept and show his return upon it, but if this be not prima facie evidence, he could never prove the attachment or the arrest, unless he took or happened to have with him a witness to prove the truth of his return. But even where he is a party, its verity cannot be collaterally called in question. Livermore v. Bagley, 3 Mass. R. 513. The proper mode of impugning its truth is by an action for a false return. But even in this suit, where it is directly put in issue and the officer notified of the point he has to meet, the return is evidence prima facie true. The burden is upon the plaintiff to prove its falsity. It may therefore be la- J down as an unquestioned rule, than — 190 — the certificates or returns of sworn officers, acting within the sphere of their official duty, are always competent evidence, and are to be presumed to be correct, until the contrary be shown. The only case which seems to militate with this principle is that of Merrill v. Sawyer et al. 8 Pick. 397. The report of that case is not very full, and does not clearly show the circumstances under which the instruction was given to the jury or the ground of the decision of the court. It is liable to misapprehension, and we fear did mislead the learned judge of the Common Pleas in making the decision which is complained of. We are pleased to have an opportunity to explain it. That was a contest between two officers claiming the same property by virtue of different attachments. The plaintiff having attached the property, the defendant afterwards took and claimed it by force of a prior attachment. The plaintiff legally took the property; gave due publicity and retained constructive possession of it. His attachment was unquestionably valid. The defendant could only succeed by showing a prior attachment. To prove this, he produced his own return, of a date prior to the plaintiff’s. This was prima facie evidence and would have prevailed, but for other controlling facts. He had either failed originally to seize the property or to give publicity to the attachment, or had relinquished his possession ; so that the plaintiff found no one in possession of it but the owner, and no evidence of any attachment upon it. The property therefore was liable to be attached by any officer ignorant of the first attachment. The plaintiff therefore might lawfully attach, and the right of the creditors for whom he acted could not be affected by any subsequent notice to him or them. It was with reference to these facts that the instruction was given to the jury, and upon them that the case was decided. It is very clear that the defendant, if he ever made a legal attachment, so far lost it by his subsequent neglect, as to expose the property to subsequent seizure on mesne process or execution. The Court very properly held, that the second attachment should have a preference over the first ; ' or in other words, that the first was not valid against a subsequent lawfil — 191 — seizure of the property. Both returns were prima facie evidence of attachment and equally good, a.id in the absence of other oroof the first in point of time would have prevailed. But the defendant failed because he did not take possession or otherwise give publicity to his attachment, so as to prevent a subsequen. attachment. This view of the case explains and makes intelligible and applicable the remarks of the Chief Justice in giving the opinion of the Court. The general result of our inquiry is, that where the law has appointed an officer for the performance of a specified duty, the law must trust him so far as he acts within his authority. Hence where it is made the duty of an officer to make copies, or certificates, or returns, they are to be received as evidence, sometimes conclusive and always at least primá facie. They are in all cases to be presumed to be true until they are shown to be false. The certificate of a field-driver, made in the regular discharge of his official duty, is competent and prima facie evidence of the facts contained in it. It only remains for us to consider whether the making and filing the certificate in this case was an official act. This will depend upon the construe tion of the several statutes relating to the subject. The Revised Statutes, c. 19, § 22, make it the duty of every field-driver, within his town, to take up cattle going at large in the public highways without a keeper; “and he shall restrain them in any pound in such town, according to the provisions of the one hundred and thirteenth chapter.” This chapter treats of the “ distraining of cattle,” and contains all the regulations of both branches of the subject, to be found in the statutes. The first section requires the field-driver, when he lias taken up any beasts for going at large contrary to law forthwith to impound them in the town pound ; and also requires the pound-keeper to furnish them with suitable food and water. The second section fixes the fees of the field-driver and pound-keepei. The third provides that the pound-keeper shall not deliver the beasts to the owner, till he has paid for the keeping of them and the fees of the pound-keeper and field-driver. These three sections are the only ones which speak expressly of distraining and impounding for going — 192 — at large. Unless the subsequent sections refer to this branch of the subject as well as to distraining for damage feasant, there are no further regulations. And as far as the two branches of the subject could be treated together and rules common to both could be adopted, it was highly convenient and expedient to unite the provisions. And we have no doubt that the general regulations are to be applied to both species of distress as far as they are applicable to both. The eighth section requires the person impounding to give notice to the owner. Now unless this extends to field-drivers and cattle distrained for being at large, there is no provision for notice to the owner or for public notice. And unless it be the duty of the field-driver, in such case, to leave a memorandum as required in the sixth section, the pound-keeper cannot know the cause of the impounding, or the expenses which have been incurred, or the fees of the field-driver. And unless the pound-keeper be authorized to proceed under the twelfth and thirteenth sections, to sell the beasts impounded for being at large, then no means are provided for the payment of the fees and expenses of impounding ; but the pound-keeper is required to detain the beasts till they are paid. And if he has no power to sell, the owner, even if known, might not in all cases have a very strong inducement to redeem them. It might sometimes become the interest of the pound-keeper to get relieved from them in the easiest way he could. We cannot impute such absurdities to the statute or suppose that the legislature would require such inconsistent duties of any of its officers. The application of the regulations in relation to distraining for damage feasant, to the distraint for being at large, as far as necessary to carry into effect both branches of the statute, will relieve it from all inconsistencies and defects ; and in our opinion execute the intention of the legislature. It cannot oe doubted that the fourteenth, fifteenth and sixteenth sections apply equally to distresses on both grounds. From the above view of the subject, we have no doubt that it was the duty of the field-driver to file with the pound-keeper a memorandum or certificate of the impounding and of his fees and expenses ; that such certificate was official, — 193 — and entitled to the credence due to an official document, and was prima facie evidence of the truth of the facts stated in it. Judgment of Court of Common Pleas reversed, and new trial to be had in the same court.