Munroe v. Merrill

Shaw, C. J. The court are of opinion that where, as in the present case, an officer admits the arrest, and places his justification solely on the ground of his official capacity and his acting under legal. process, he is bound to set forth, in his return, the facts necessary to establish such justification, and that he cannot resort to evidence aliunde, especially where it would vary from or contradict his return. Gardner v. Hosmer, 6 Mass. 325. Purrington v. Loring, 7 Mass. 388. Davis v. Maynard, 9 Mass. 247. Wellington v. Gale, 13 Mass. 483. Had the defendant, at the time of the alleged arrest, gone to the plaintiff, and made known his business, and the plaintiff had given him notice of a writ of protection, and gone with him to a place designated to search for it, and exhibited to the officer a paper, claiming that it was a valid writ of protection, and thereupon, without more, the officer had permitted him to go at large, the case perhaps might have admitted of a different answer, denying the arrest, and leaving the burden of proof on the plaintiff. But the issue, as it stands, requires the officer to justify under legal process, and, for this purpose, he must not only prove that he had an execution and acted under it; but it is essential to his justification, that he has returned his execution, with his doings, by which they are made matter of record, for the information and security of all parties interested. The debtor had an interest in such return, because, when arrested, if he did not claim exemption under a writ of protection, such an arrest would discharge him from further liability on the execution. The creditor had an interest, because, although the debtor was arrested, if he claimed and obtained his release under a writ of protection, such arrest would be no bar tr further service of the execution. We think the rule, that an officer, to justify himself, must [239] make a true return of his doings, is well established by authority, and is reasonable and well founded in principle. It ie a high power, conferred and regulated by law, and the rules of law, in its execution, must be strictly pursued. It is a rule which an officer may easily comply with ; he has only to take care always to conform to the truth in his return ; and if a true statement of his doings will justify him, he is safe. The rule may sometimes operate as a hardship, by excluding the truth in a particular case; but, as a general rule, it is useful and beneficial. Nothing here said is intended to prevent the officer, before a new trial is had, from applying to the court to which the execution was returned, for leave to amend his return according to the truth, if he can do so, and that court see just cause for allowing it. Exceptions sustained.