Hallowell v. Page

Scott, Judge, delivered the opinion of the court. The defendant has no right to controvert the truth of the sheriff’s return. That return was regular on its face, and its truth could only be impeached in a collateral action against the officer for its falsity. To permit the parties to an action to controvert the truth of the return of the officer deputed by law to serve the process would produce great delay and embarrassment in the administration of justice. Hence it is the general rule that, as between the parties to the process or their privies, the return is usually conclusive, and is not liable to collateral impeachment. This rule, it is said, is one necessary to secure the rights of the parties, and give validity and effect to the acts of ministerial officers, leaving the persons injured to their redress by an action for a false return. (2 Hill & Cowen’s Notes, 1087, and cases cited.) None of the exceptions to this rule help this case. As it did not appear from the affidavit of Page that he had any meritorious defence to the action, we can not say that the ■ court, considering the time the application was made, exercised its discretion unsoundly in refusing him leave to file an answer, or in joining in the defence made by the other defendants, as it did not appear that théir defence was a just and meritorious one. The party asked a favor and the court could impose terms. As the bill or check sued on does not contain the words “ for value received,” and is not such a bill as makes the drawer liable for ten per cent, damages on failure to pay, the judgment [594] will be reversed, and such judgment as ought to have been entered below will be entered here, the respondents paying the costs of this court. Judge Ryland concurring ; Judge Leonard absent.