Whittlesey v. Starr

Hosmer, Ch. J. The controversy in this case relates solely to the plaintiff’s title. An execution in favour of the plaintiff, both the parties to it being inhabitants of Danbury, where the locus in quo is situated, was levied on the land in question ; and the officer states in his return, that the appraisers were appointed by the next justice of the peace, “that could by law judge between the parties.” It is admitted, and is undeniable, that the justice, when exercising the above act of appointment, must have dwelt in the town wherein the plaintiff or defendant dwells, unless there is no justice in either of said towns, who can lawfully try the cause ; in which event the plaintiff may bring his suit before a justice in an adjoining town. Stat. 41. tit. 2. s. 22. To the levy it is objected, it does not appear, that the justice who appointed the appraisers, dwelt in Danbury. I admit, that it does not necessarily thus appear, in exclusion of every possibility to the contrary ; but by a rational construction of the officer’s return, there is no doubt that the requisite fact does appear. The return of an officer ought ever to receive a reasonable intendment and construction ; and where it is susceptible of different meanings, that should be adopted, which is most conformed to his legal duty. Booth v. Booth, 7 Conn. Rep. 350. When, therefore, it is returned upon an execution, that the appraisers were appointed, by the next justice of the peace, capable of judging between the parties, both of whom lived in the town of Danbury, where the land in question lay, it is a reasonable construction, that by this periphrasis, the officer intended the same as if he had said, that the justice dwelt in the aforesaid town. This construction assumes the principle that the officer did his duty, which is a most reasonable intendment, until the contrary is made to appear. It is the more reasonable, as, if this were not the fact, it was competent for the defendant to prove it; and it would have been proved by him, as the proof could be attended with no possible difficulty. On the other hand, if the argument is adopted, that without reference to the performance of his legal duty, the officer meant only to affirm, that there was no justice in Danbury, who could judge between the parties, and that the justice appointing the appraisers was of an adjoining town, we admit a most strange absurdity. A return of such a fact would avail [138] nothing, and would decisively shew, that the officer had not done his duty ; that the levy was void ; and with open eyes on the consequences, that he had thought proper to vitiate the whole proceedings, and to subject himself to damages equivalent to the execution debt. A construction more unreasonable cannot be imagined, nor one more opposed to established principles. If the words of a contract admit of two senses, (and so of a return) that shall be preferred, which is most agreeable to law. Shep. Touch. 85. So where words are capable of different expositions, that shall be taken, which supports the transaction. Doug. 465. I have no doubt that the execution was duly levied ; and think it unnecessary to express an opinion on any other point. Daggett and Williams, Js. were of the same opinion. Peters, J. dissented; and Bissell, J., having been of counsel in the cause, gave no opinion. New trial not to be granted.