Kellogg v. Wadhams

Bissell, J. The defendant’s title is controverted on two grounds. It is contended, 1. That the defendant’s writ of attachment was void. 2. That the levy of his execution was invalid. If the plaintiffs have succeeded in establishing either of these positions, they are entitled to a judgment in their favour ; otherwise, it is conceded, that judgment must be rendered for the defendant. 1. It is contended, that the defendant’s writ was void. First, on the ground, that the magistrate has not certified, that he administered the oath, according to the requirements of the statute. [215] There is not the slightest foundation for this objection. The ■magistrate has certified, that the agent and attorney of the, party personally appeared before him, and made an affidavit “ respecting the within writ in the words following.” The oath is then set forth at length, and in the language of the statute. As little foundation is there for the objection, secondly, That the writ is not directed to the indifferent person ; but that there is only a certificate of the magistrate that the writ was so directed. The magistrate, after setting forth the oath required by law, immediately subjoins : “ Therefore, this writ is directed to Uri Taylor, an indifferent person, to. serve and return.” To this he has affixed his official signature. This is, in itself, a direction ; and is the same as though the justice had said “ Therefore I direct this writ, &c.” Thirdly., it is objected, (and this objection has been principally relied on,) that the direction to the indifferent person is not, according to the provisions of the statute, inserted in the writ, but is indorsed upon it. The statute provides, that no writ shall be directed to an indifferent person, until the same shall be complete, in all other respects. It then specifies the cases, in which it may be so directed ; and then enacts, that the authority shall insert in the writ, the name of the indifferent person to whom it is directed. It was, undoubtedly, the object of the legislature to provide, that the name of the indifferent person, to whom the writ was directed, should be specified : and for this, there are very good reasons. All persons are bound to take notice of the official character of the sheriff, or his deputy ; and so of all public officers. But with regard to private persons, it is otherwise ; and the party against whom process issues, is not bound to take notice of a special authority, unless it be shown. The statute requires that this authority should appear upon the process itself. But to suppose, that the legislature meant to provide, that this authority should appear upon one side of the paper, rather than upon the other, is to suppose them engaged in a very childish employment. The spirit of the statute, then, has been complied with: and not only so, but there has been a compliance with it, even to the letter. What constitutes the writ ? Is not the oath a part of it 1 And does not every direction, which precedes the final signature of the magistrate, form a part of, and go to con [216] stitute the entire process ? On this subject, it is impossible to doubt. The direction to the indifferent person was, literally, inserted, in the writ; and this objection, as well as the others, must be overruled. 2. It is objected, that the levy of the defendant’s execution is invalid : and the question now to be discussed, is, whether the proceedings stated in the case reserved were so far irregular as to render that levy void 1 The statute, after having prescribed the manner, in which executions shall be levied on real estate, makes it the duty of the officer to cause the execution, with his indorsement thereon, to be recorded at length, in the records of the town-clerk, where the lands or real estate lie — and that he shall then return such execution into the office of the clerk of the court, from whence it issued, there to be kept on file. The statute then enacts, that “ all executions served, returned and recorded as aforesaid, shall vest all the title of the debt- or, in the creditor, his heirs and assigns.” Stat. 58. tit. 2. s. 77. From these provisions of the statute, it is very clear, that no title vests in the creditor, until the execution is returned into the office of the clerk of the court, from whence it issued. This is the last and consummating act; and until this is done, every thing may be considered as in fieri. The whole previous proceedings are in the hands, and subject to the con-troul, of the officer : and the question is, whether while thus under his coptroul, he has the power to correct any mistake, which may have intervened? The question seems almost too plain for argument. To deny him this power, would be to oppose all reason and all analogy. All officers, whether judicial or ministerial, possess this power: and the frequent exercise of it, is indispensable to the administration of justice, as well as to a right discharge of their official duties. It was not denied, in the argument, that the correction might have been made, at any time before the delivery of the execution to the town-clerk, to be recorded. But it was contended, that by that act, the officer became functus officio, and could exercise no further controul over the proceedings. The whole argument is built on a false assumption. The officer did not become functus officio, by this, any more than by any other act, in the course of the proceeding. He had another duty yet to perform, and without the performance of which, every thing [217] done by him, would have been entirely nugatory. There is no reason for making this delivery to the town-clerk, a rest in the proceedings, and for saying, that at this point, all mistakes ■which had occurred, became fixed, and incapable of correction. It has, however, been urged, that although it was competent to the officer to correct the mistake, yet he has not done so : that the only mode in which it could be done, was by a new levy, and a new appraisement. This was clearly unnecessary. Bill v. Pratt, 5 Conn. Rep. 123. Benjamin v. Hathaway, 3 Conn. Rep. 548. There was no mistake in the levy. That was correct; and so was the appraisement. The only defect was in the evidence of such appraisement. This the officer has caused to be corrected. And this, I think, he had a perfect right to do. Suppose the officer had discovered, before the levy was perfected, that the appraisers had neglected to put their signatures to the appraisal: might he not have caused that to be done? And where is the difference in principle, between affixing a signature and filling a blank 1 In my judgment, the proceedings of the officer were entirely correct. He recommenced at the spot, where the mistake intervened. He caused an appraisement in writing to be delivered to him. He then proceeded to Complete the levy; — returned the execution, with his indorsement, corrected, to the town-clerk’s office, and caused it to be recorded. He then made the only return, which was ever made, to the office of the clerk of the court. This was setting out the land according to law. Booth v. Booth,? Conn. Rep. 350. The superior court is to be advised, that judgment be rendered for the defendant. The other Judges were of the same opinion. Judgment for defendant.