Lowery v. Caldwell

Devens, J. The defendant Caldwell, having been arrested upon mesne process, entered into a recognizance under the Pub. Sts. o. 162, § 28, that within thirty days from the day of his arrest he would deliver himself up for examination before some magistrate authorized to act, giving notice of the time and place thereof as provided by law, appear at the time fixed for his examination, and not depart without leave of the magistrate, nor make default, but abide the final order of the magistrate thereon. He did take out such notice in proper form, delivered it to an officer competent to serve the same, who has made return of a service thereof which is legal and sufficient. If these were all the facts that appeared, this return would be conclusive between the parties in favor of the defendants, and the remedy of the party injured by such return, if it were actually false, would be against the officer. Eastman v. Perkins, 10 Cush. 249. Niles v. Hancock, 3 Met. 568. Collins v. Douglass, 1 Gray, 167. Davis v. Putnam, 5 Gray, 321. Henshaw v. Savil, 114 Mass. 74. Taylor v. Clarke, 121 Mass. 319. Stewart v. Griswold, 134 Mass. 391. But a copy of the notice actually delivered by the officer is annexed to the agreed facts, by which it appears that no hour of the day was fixed thereby when the examination would take place. The plaintiff contends that the agreed facts are to be construed as a waiver by the defendant of the conclusive character of the officer’s return, and a submission to the court of the inquiry as to the validity of the notice actually served. If it clearly appeared that it was the intention of the parties to submit the facts to the court irrespective of the officer’s return, that would not be regarded. Boston v. Tileston, 11 Mass. 468. On the other hand, if the parties only agreed to the facts if admissible as against the officer’s return, and that was legally conclusive, it would still be treated as such, notwithstanding such agreement. Niles v. Hancock, ubi supra. In Boston v. Tileston, ubi supra, the return of the officer was not made a part of the agreed statement. The question which the parties there submitted was whether certain persons who [90] had acted as appraisers in the levy of an execution on land were . disinterested freeholders, and although the court speaks of the return on the execution as presumably one which described them as such, it does not treat this return as before them. This case is cited with approval in Commonwealth v. Greene, 13 Allen, 251, and Wolcott v. Ely, 2 Allen, 338; but the latter case is rested upon the ground that an officer could not be allowed to amend his return upon an execution by the addition of certain facts necessary to render his proceedings under the same valid, if other facts were untruly stated therein, and the whole return, if amended so as to conform to the truth, would show that the levy was invalid. The construction of the agreed facts in the case at bar should be that given in Collins v. Douglass, ubi supra. In that case the officer, to whom was delivered for service a citation to a creditor to appear at the examination of his debtor, committed to prison on execution, returned thereon that he had served the same by giving an attested copy thereof to the plaintiff’s attorney. It was held, in an action on the debtor’s bond for the liberty of the prison limits, that this return was conclusive evidence that the copy served purported to be signed by the magistrate who signed the original citation, although, in the statement of facts on which that action was submitted to the court, it was agreed that the copy served purported to be signed by a different magistrate. The submission in Collins v. Douglass was not limited by any words which made the agreement dependent upon the question whether these facts were admissible as against the return. The argument of the counsel was similar to that here urged, that the copy served purported to be signed and issued by a different magistrate from the one who actually signed and issued the citation, and this fact being admitted by the defendants, the return of the officer on the original citation is not conclusive, to which it was orally replied from the Bench: “ Thomas, J. How can you go behind the officer’s return ? Shaw, C. J. The copy served, being made a part of the agreed statement, is to be considered; but the question remains, whether the officer’s return can be contradicted by such evidence.” There is certainly force in the suggestion, that, but for the agreed facts, it might be that a party liable to be injured by the [91] false return of an officer, could have induced or compelled him to amend the same. Parties, therefore, may properly, as in Boston v. Tileston, ubi supra, submit cases on the facts as they actually exist, irrespective of the return. But the intention so to do should clearly appear, and we do not find it in the case at bar. Judgment affirmed.