Briggs v. Wiswell , 56 N.H. 319 ( 1876 )

The officer's return on the first of these writs, a copy of which has been obtained from the clerk, is in the following words: "Strafford ss. Aug. 19th, 1875. The said Briggs and Taylor, having given bond according to law, I have replevied the rags within mentioned, and delivered the same to said Briggs and Taylor."

This is according to the form given in Bell's Justice and Sheriff, art. 657, from which I infer that this learned author, and the experienced officers and clerks whose assistance he acknowledges in his preface, have understood that the taking a bond according to law was matter material to be returned.

Indeed, the plaintiffs themselves, by taking the position that this writ is to be quashed on motion because the sheriff did not take a sufficient bond, tacitly admit this to be the law. The taking of a sufficient bond is clearly made by statute one of those things necessary to the correct service of the writ, without which the proceedings of the officer would be nugatory, and which therefore must be shown in his return.

In the case of Brown v. Davis, 9 N.H. 76, it was held that "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."

It appears to me that this is emphatically a case for the application of this principle. The taking a sufficient bond is a material part of the service of a writ, and is material to be returned by the officer, and, I think, must be conclusive upon the parties.

The wisdom of this provision of the law is most apparent in this case. If the validity of this proceeding could be made to depend upon the exact compliance with the terms of the statute, and the parties were liable to be delayed and hindered by the investigation of such matters, great inconvenience would necessarily follow. The law wisely avoids these inconveniences by not permitting the officer's return to be questioned in this stage of the proceedings, but leaving the defendant to seek his indemnity from the officer, if the bond is not large enough, or is otherwise insufficient.

Undoubtedly, the officer on whom this responsibility rests cannot be affected by the amount stated in the writ as the value of the property: he cannot be excused by an undervaluation of the property in the writ by the plaintiff, nor bound by an over-statement. It may be that the amount set down in the writ may be prima facie evidence against the plaintiff of the value of the property, but I think it cannot go beyond that.

With these views of the law, the proposed amendments seem quite immaterial. It does not appear to me that the plaintiff will gain or lose anything by making the amendment, or that the defendant will be prejudiced by granting the leave required. I think, therefore, that the motion to dismiss must be denied, and the plaintiff may have leave to make the desired amendments.

LADD, J., concurred.

Exceptions sustained.