Barnard v. Stevens

The opinion of the Court was pronounced by Prentiss, J. The court below decided, and instructed the jury, that the record of the judgment, execution, and officer’s return thereon, which was produced and read in evidence on the trial, was no justification of the taking of the ox sued for, and directed the jury to return a verdict for the plaintiff. The case comes here on exceptions filed to the direction thus given to the jury; and the question to be decided is, whether the direction was right. The execution was dated Feb. 22d, 1819, and was returnable within sixty days from the date; and it appeared that it was returned into the clerk’s office July 10th, 1820, with a return of the officer endorsed thereon, dated July 10th, 1819, in which he certified that he took the ox by virtue of the execution, and, having advertised according to law, sold the same. It is quite obvious, that the return thus made could be no justification to the defendants. It was dated July 10th, 1819, which was long after the execution had expired; and as the [431] execution could not be executed after the return day, the act of seizing the ox upon it, after that day, was unauthorized and tortious. If, indeed, the officer had begun to execute the writ before the return day, he might have completed it after. But it did not appear from the return, that he seized the ox within the life of the execution; but rather the reverse appeared, that he took the ox long after the execution had expired. If, in truth, the levy was made before the return day, though the sale was after, it should have been so certified'*Í5y the officer. But on the execution was endorsed a further and additional return of the officer, dated April 19th, 1820, in which he certified, that on the 19th day of April, 1819, he repaired to the dwelling-house of the debtor, and demanded of him the sum of ‡ 16,55, for his fees on the execution for travel and poundage, and the debtor refusing to pay the same, fye seized the ox, advertised, &c.- and on the 10th day of July, 1819, sold the same. This return was made and-endorsed on the execution by the officer, not only after the present action was commenced against him, but more than six years after the execution was returned into the clerk’s office, and without any order or permission from the court. But it is insisted, on the part of the defendant, that an officer has a right to amend his return at any time; and the cases of Adams vs. Robinson, 1 Pick. Rep. 461, and Thatcher vs. Miller, 11 Mass. 413, are relied upon in support of the position. In the first mentioned case, it was held, that an officer, who had returned a writ served by him, with a memorandum on it of the time and mode of service merely, but without any signature, might afterwards be permitted, though out of office, to amend and complete his return from his minutes on the writ. In the other case referred to, it was held, that the officer might have permission to amend his return, although more than six years had elapsed since the service, and although the defendant had sued out a writ of error to reverse the judgment. But it was subsequently determined in the same case, 13 Mass. 270, that it would be improper to suffer an officer, so long after the service of the writ, to amend his return, by inserting an essential fact, the omission of which might render him liable to an action for damages. The latter decision is founded in good sense, and is directly in point. The additional return on the execution in the case before us, was made not only more than six years after the return of the execution into the clerk’s office, but after the commencement of the present action, and contained a new and essential fact, which went to defeat the action, by showing that the ox was taken before the return day of the execution. It is undoubtedly true, as a general rule, that an officer may be permitted to amend his return, at the term of the court to which the process is returnable, or, indeed, at any subsequent term, provided the rights of third persons will not be affected by it, and there is something on the record by which the amendment or correction can be made. But it would be extremely dangerous to permit an officer to do this, by the insertion of a fact, like [432] the one contained in the amendment in the present case, after the lapse of more than six years, and after an action has been instituted against him. It is further to be observed, that in all the cases cited, where amendments have been allowed, they were made by the order or permission of the court; and it is certain that they cannot be otherwise made. After a process is returned, the officer cannot alter or amend his return without leave of court. On application to the court, they will allow the amendment or not; and if allowed, it will be on such terms as they think proper to impose. The additional or amended return in this case, was not authorized by any order or permission from the court; and on this ground, as well as the other, it could not be regarded as of any validity. But if the objections already mentioned could be got over, and the return were to be taken as regularly amended, and as evidence of the additional facts stated, it would not avail the defendants. It appeared that on the 3d of April, 1819, the damages and costs contained in the execution were fully paid, and satisfaction was acknowledged by endorsements on the execution, signed by the creditor. The return stated, that the ox was seized on the 19th of April after, and was taken and sold to satisfy the officer’s fees for travel and poundage. By the statute, fees for travel are allowed “for the service of every writ,” and poundage “for levying each execution.” (Comp. Stat. p. 300.) If an officer levy under an execution, he will be entitled to fees for poundage as well as travel, though the parties compromise before he proceeds to a sale. Such was the decision in Alchin vs. Wells, 5 T. Rep. 470; and, without doubt, the same doctrine would obtain under our statute. But in the present case, the execution was paid to the creditor before any service or levy was made, and it so appeared by endorsements on the execution. At the time of the levy, there was nothing due the creditor, nor were any fees due the officer, for he had done no act to earn any; and the execution being fully satisfied, there was nothing for which a levy could be made. In Shattuck vs. Woods, 1 Pick. Rep. 170, it was determined, that when an officer received an execution which he did not execute, he was entitled to no compensation; that his fees were. for service, and then they were to come out of the debtor ; but the debtor could not be charged, unless his person or property was taken, or unless he paid the money upon the execution to the officer. The reasonableness as well as justice of this doctrine is quite obvious; and the execution in the present case having been paid to the creditor before the officer had served or begun to levy it, he had no claim against the plaintiff for fees, and consequently the taking of the ox under it was unauthorized and illegal. It was urged in the argument, that admitting that the officer might be liable, yet that the other defendants were not answerable for his unauthorized act. It is true, that for the irregularity of an officer in executing a valid process, or for any acts of his, beyond the authority which the process confers, the party [433] suing it out is not responsible, unless the officer acts under bis orders or direction. But as no question of this kind appears to have been made at the trial, and the exceptions state, generally, that the taking of the ox was proved, without applying the fact to the officer, in exclusion of the other defendants, it must be taken, that the jury found, either that the officer acted under the orders of the other defendants, or that they were actually concerned in the taking, and, considered either way, they were equally trespassers with him. In every view of the case, we are of opinion, that the direction given to the jury was right, and that the judgment of the county court must be affirmed. Judgment affirmed.