Rangeley v. Goodwin

Gilchrist, J. By the act of December 29, 1832, entitled an act relating to the organization of the courts of justice, see. 15, it is provided that “ all writs of execution and writs of possession, issuing from the superior court of judicature, shall be made returnable at or before the expiration of six months from the date thereof, or at the next regular term of said court in said county, if within six months ; and the forms of such writs shall be varied accordingly; and such writs, if returnable in vacation, shall be returned and filed with the clerk of said court in said county.” The demandant’s claim to the land in controversy is founded upon the levy of an execution issued from the superior court on the 21st day 'of December, 1842, and returnable at the term of the court in said county next following, which was on the second Tuesday of December, 1843. The execution was not, therefore, such a writ as could lawfully have issued from the superior court. The proceedings under it were commenced within the period of six months from the time at which it was issued, but were not completed until the 18th day of October, 1843, which was materially more than six months from that date. This fact precludes an inquiry relating to the practicability of curing the defect in the execution by an amendment in its form. If it were so amended as to conform with the requisitions of the law, and appear to be returnable in six months from its date, it would be ineffectual to support the proceedings that were founded upon it. Its legal force would have been spent on the expiration of that term, and the levy afterward would have been ineffectual and void; so that the demandant [220] could take no relief by an amendment, if an amendment were admissible, and a cause should be exhibited to justify the exercise of the court’s discretion in ordering one to be made. Blaisdell v. Sheafe, 5 N. H. Rep. 201. This seems to be fatal to the demandant’s cause, and to render superfluous the examination of the other exceptions that have been sent up. There must, therefore, be Judgment for the tenant on the verdict.