Messer v. Bailey

Eastman, J. This cause having been taken from the jury, by the consent of parties, with an agreement that such judgment should be rendered for the one party or the other, as this court should order, or a new trial be had, if the court should so direct, the questions are submitted to us as upon an agreed case, and we shall proceed so to consider them. The plaintiff, by his writ of replevin, has obtained possession of the property in controversy. The sheriff, by the terms of the precept, was commanded to deliver the same to him, upon giving bonds, &c., and all the plaintiff now claims, or is entitled to have, provided he maintains his action, is damages for the detention. He asks for nominal damages only. The defendant, on the other hand, demands the value of' the property; and this he is entitled to receive, provided he shows a right to the property. Kendall v. Fitts, 2 Foster’s Rep. 1; Bell v. Bartlett, 7 N. H. Rep. 178; 2 Saund. on Pld. and Ev. 760; 1 Chitty’s Pld. 148. Which, then, has the better right? The plaintiff claims that, having a bona fide mortgage upon the property, founded upon two promissory notes, which were proved to have been given for a good and valid consideration, which has not been discharged, the better title is in him; while the defendant’s right to the property is based upon an attachment made by him, as deputy sheriff, by virtue of a writ founded upon a valid claim against Clendenin, the mortgager. The validity of the mortgage being undisputed, and it having been executed and recorded prior to the attachment, the plaintiff must hold the property, unless he has lost his right to the same by the proceedings had under the statute, subsequent to and connected with the attachment. — 17 — By the provisions of section 15, chapter 184 of the Revised Statutes, personal property not exempt from attachment, subject to any mortgage, pledge or lien, may be attached as the property of a mortgager, pledger or general owner, the attaching creditor or officer paying or tendering to the mortgagee, pledgee or holder the amount for which said property is holden, as ascertained in the mode provided in the next section, which is as follows: “ § 16. Such creditor or officer may demand of the mortgagee, pledgee or holder, an account, on oath, of the amount due upon the debt or demand secured by such mortgage, pledge or lien, and the officer may retain such property in his custody until the same is given, without tender or payment ; and if such account shall not be given within fifteen days after such demand, or if a false account is given, such property may be holden discharged from such mortgage, pledge or lien.” Now the defendant contends that, having made the attachment, a legal demand for an account of the amount due upon the mortgage held by the plaintiff, was duly made upon him, under the provisions of this section of the statute; that no account has been rendered, or if any, a false account; and that consequently the property has become discharged from the mortgage. To show this, he offered his own return made upon the writ of attachment, and also produced a paper, proved to have been sworn to by the plaintiff, which purported to contain the amount due upon the mortgage, and to have a copy of the same annexed thereto. The amount stated to be due was $1200, but there was no copy of the mortgage annexed, as set forth in the paper. Was this evidence competent to show a legal demand, and a refusal or neglect to render an account of the amount due ? Whether the demand stated in the return was verbal or in writing, does not appear; and whether it was sufficiently specific, we do not propose to consider. We held, in the case of Farr v. Dudley, 1 Foster’s Rep. 372, where real es — 18 — tate mortgaged had been attached, that the demand should be for the amount due at the time of making the demand ; and we stated in that decision, that the attaching creditor should be held to comply strictly with all the substantial requisitions of the statute. "We think the same suggestions may be made with reference to this statute, and that a strict compliance therewith devolves upon the attaching creditor, if he would avail himself of its provisions. But without considering this point further, we are of opinion that the return of the defendant that he had made a demand, was not competent to prove the fact of a legal demand having been made. The force and effect that shall be given to an officer’s return has been several times considered by the courts of this State, and the subject has been fully and ably discussed in repeated cases. Brown v. Davis, 9 N. H. Rep. 76; Angier v. Ash, 6 Foster’s Rep. 99; Lewis v. Blair, 1 N. H. Rep. 69. By these authorities the principles established are, that, as between the parties to a suit and those claiming under them as privies, and all others whose rights and liabilities are dependent upon the suit, as bail and indorsers, the return of the sheriff, of matters material to be returned, is so far conclusive evidence, that it cannot be contradicted for the purpose of invalidating the sheriff’s proceedings, or defeating any right acquired under them. But, that such evidence is not conclusive as to third persons, whose interests are not connected with the suit, but whose interests may be affected by the proceedings of the sheriff, nor as to collateral facts, or matters not necessary to be returned. In Angier v. Ash, Bell, Justice, says: “But, to make any matter stated in a sheriff’s return evidence, either prima facie or conclusive, it is essential that the matter returned should be material and proper to be returned. Any other thing introduced into such return, either from ignorance or with a view to make the officer’s statements evidence for — 19 — himself or others, is entitled to no credit, and is entirely inadmissible.” In Lewis v. Blair, Richardson, Chief Justice, says: “ There is another limitation to the application of the rule that the sheriff’s return cannot be traversed. The return of any collateral fact, not necessary to be returned in order to render his proceedings valid, may be traversed.” And in Brown v. Davis, Parker, Chief Justice, lays down the rule generally in the terms in which we have stated it. The doctrine of these authorities has been repeatedly recognized and practiced upon in other cases in this State. Parker v. Guillow, 10 N. H. Rep. 103; Galusha v. Cobleigh, 13 N. H. Rep. 79; Buckminster v. Applebee, 8 N. H. Rep. 546; Howard v. Daniels, 2 N. H. Rep. 140. And such is also believed to be the English doctrine, and also that which prevails generally in this country. Rex v. Elkins, 4 Burr. 2129; 2 Saund. Rep. 344, note 2; Com. Dig. Retorn, G.; Barr v. Satchwell, 2 Strange 813; Flud v. Pennington, Cro. Eliz. 872; Slayton v. Chester, 4 Mass. Rep. 478; Bott v. Burnell, 11 Mass. Rep. 165; Arnold v. Tourtellot, 13 Pick. 172; Stinson v. Snow, 1 Fairfield 263; Agry v. Betts, 3 Fairfield 417; Hathaway v. Goodrich, 5 Vt. Rep. 65; Staunton v. Hodges, 6 Vt. Rep. 66; Watson v. Watson, 6 Conn. Rep. 334; Williams v. Merle, 11 Wend. 80. Where the officer is sued for a false return, the rule cannot of course apply, because the question to be settled by the suit is whether the return is true or false; and to make the return conclusive evidence of the facts stated in such a ease would be to preclude all inquiry into it. But in other actions the rule is very general, and full force is given to the return, when it contains matters proper and necessary to be returned. The essential point in this case, then, is, was the statement in this return by the defendant that he had made a demand upon the plaintiff for an account of the amount due on the mortgage, and that no account was given him, — 20 — matter necessary for him to return ? Was he required by law, and was it his duty to make this return ? Can he use it as evidence for himself? We think these questions must all be answered in the negative. The statute, indeed, provides that the creditor or officer may make the demand ; but it does not require the officer to do it, any more than it does the creditor. It is no where made a necessary part of his duty to make the demand, and he is answerable to no one in his official capacity if he does not do it. The provision of the statute that the officer may make the demand, it appears to us, was inserted for the convenience of the creditor, for whom it may oftentimes be inconvenient to make the demand ; and not with a view to impose the duty upon the sheriff as an official act, which he is bound to do, and in regard to which he is answerable in his official character. The law specifies him as an agent for the creditor, and as one whom it will recognize as a proper person to do the duty ; but it does not require him to do it. It was not then, necessarily, a part of the defendant’s duty to make the demand, and consequently not obligatory on him to make the return; and before an officer can make his return evidence for himself, it must be his legal duty to make the return on the writ. Laying the return out of the case, the only evidence of a demand and neglect to give an account of the amount due, is to be found in the paper produced by the defendant, proved to have been sworn to by the plaintiff. How this paper came into the possession of the defendant does not appear; but it was probably given him by the plaintiff. Assuming that it was, and what does it show? Certainly not that any legal demand had been made for an account. There is in it no reference to any demand. For some reason, the defendant has the paper, and we might proceed to conjecture the cause, but it would be only conjecture; there is no evidence of the cause, and the paper stands alone. Had there been a legal demand shown, it would then become a — 21 — question of some moment whether the paper could be held to be a sufficient compliance with the demand; and whether the account rendered was true or not. But as it is, those questions do not arise ; nor can they properly, until the defendant shows that a legal demand was made upon the plaintiff for an account. That such a demand was made, there is no competent evidence in the case to prove; and the defendant fails to show any right to hold the property as against the plaintiff. Consequently the plaintiff, having the possession of the property, should have judgment for nominal damages for the caption and detention. The defendant, in his argument, claims costs for error in some of the plaintiff’s pleadings ; but no question of costs has been transferred to this court; and ordinarily such a question would not be sent here for decision. The costs arising upon interlocutory questions are usually within the discretion of the court below, and for their determination. As before stated, we treat this case as an agreed statement of facts, and upon it we think there is- no doubt that the plaintiff should have judgment for nominal damages.