McLellan v. Codman , 22 Me. 308 ( 1843 )

The opinion of the Court was drawn up by

Whitman C. J.

— :The returns of ministerial officers, of their doings, by virtue of precepts entrusted to them, should be explicit; and leave as little as possible to intendment. The date of the return, in this case, of the officer’s doings on the execution, being long after it had ceased to be in force, created some doubt whether it was actually in his hands before the day on which it was made returnable. But the returns of sheriffs and their deputies must be taken to be true; and the return set forth is, that, by virtue of the precept, he, the officer, had made dilligent search for property, &c. Unless- he had the execution in his hands before the-return day, his return would be false ; for he could do nothing by virtue of it, unless it was at the time in force; after that it would be in his hands as a dead letter. We must, therefore, conclude, that the execution was in his hands seasonably ; and that his return of his doings had reference to the time, when he could lawfully act by virtue of it. In such case it must be considered that there is evidence showing, that the person, against whom the execution was issued, was not of sufficient ability to pay the amount due on it. This satisfies one of the alternatives in the statute giving a right to sustain this process.

But it is contended that the scire facias is bad, inasmuch as it does not directly, and in terms, aver the inability of Weymouth, the execution debtor, to satisfy the execution. It would undoubtedly have been regular so to have averred. It was a fact to be proved ; and therefore should in substance at, least have been alleged. The demurrer, however, of the defendant is general, under which errors in matter of form merely are not to be noticed, and the statute, ch. 115, <§> 9, is very broad. It provides, “ that no summons, writ, declaration, plea, process, judgment, or other proceedings in courts of justice, shall be abated, arrested or reversed for any kind of circumstantial errors or mistakes, when the person and case may be rightly understood.” Is there any difficulty in this case in understanding the gravamen relied upon ? The plaintiff has averred, that his execution for costs has not been satisfied, and recites the officer’s return thereon, showing that the want of satisfaction arose from the want of ability in the debtor to discharge the same. The plaintiff then avers, that, for want of sufficient property of the debtor’s to satisfy the execution, the said Codman became liable, &c. From these averments and recitals we cannot see why the case may not be rightly understood.

The scire facias, and matters and things therein contained, adjudged good.