Hall v. Tenney

Parker, C. J. It may very well admit of doubt whether the first plea can be supported, notwithstanding it adopts the phraseology of the condition. The plea should show that the oath was administered by a tribunal having jurisdiction of the subject matter ; or, in other words, having competent authority to administer the oath in that case. The allegation that Stevens applied to the proper authority, designates no tribunal, nor shows any fact, on the face of the plea, from which the court can judge whether the application was rightly made, and the oath lawfully administered, or not. But it is not necessary to settle any question arising on the demurrer. The second plea sets forth the proceedings at large, and there is no suggestion that it does not furnish a good defence, if it is supported. The proof in support of it is sufficient, prima facie, and the only question is, whether the return of the officer, who served the order of notice, is conclusive evidence that the notice was given, as therein stated, or whether the defendant may be admitted to show that there was a variance between the original, and the copy left with his attorney, the former being the application of Lemuel Stevens, jr., and the latter purporting to be a copy of an application of Samuel Stevens, jr. We are of opinion that the return of the officer must, in this action, be regarded as conclusive evidence of the facts stated in it. This is the general principle. Brown vs. Davis, (9 N. H. Rep. 76.) The facts set forth in this return are matters proper to be returned. Although the law did not require that the order of notice should be served by an officer, it permitted it to be so done; and the officer in making the service acted in his official capacity, and under the sanction of his oath, as much so as in the service of a writ, or in the levy of an execution. There seems, therefore, to be no reason why his [520] return should not have the same effect as in the other cases. 3 Fairf. R. 417, Agry vs. Betts. There is here no suggestion of fraud, nor any reason, even to suppose, on the case before us, that the plaintiff could have been misled by the alleged error in the copy. If he has suffered by the default of the officer, he has his remedy by an action against him for a false return. 21 Pick. R. 165, Woods vs. Varnum. Judgment for the defendant.