Cogswell v. Mason

Superior Court of New Hampshire

Cogswell v. Mason

9 N.H. 48

CourtSuperior Court of New Hampshire

DecidedDecember 15, 1837

StatusPublished

Cited by1 cases

This text of 9 N.H. 48 (Cogswell v. Mason) is published on Counsel Stack Legal Research, covering Superior Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cogswell v. Mason, 9 N.H. 48 (N.H. Super. Ct. 1837).

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Opinion

Richardson, C. J.,

delivered the opinion of the court.

The rule which has long been adopted in relation to extents upon real estate, and which has been applied in many cases, is, that it ought to appear by the sheriff’s return that the statute which regulates extents has been strictly pursued. Nothing is to be left to conjecture. Nothing is to be presumed in favor of the extent. Every thing essential to pass the title must be expressly stated, or necessarily implied in what is stated in the return. 2 N. H. R. 495, Mead vs. Harvey; 4 do. 329 & 548; 3 do. 45 & 85; 6 do. 520.

In this case it does not appear by whom one of the appraisers was appointed. It is very probable that he was appointed by the officer who made the extent. But this is not stated; nor is it necessarily implied in any thing that is stated. This is a fatal objection to the extent. It does not appear to have been made in the manner prescribed by the statute.

And we are satisfied, that no amendment of the officer’s return of the extent in this case can avail the defendant.

It is settled, that it is the leaving of the copy of the original writ and return with the town clerk, that constitutes an attachment. 5 N. H. R. 275, Bank vs. Burnham.

In this case, all the doings of the sheriff in relation to the attachment by virtue of the tenant’s writ, are returned under the date of May 11, 1833. And it has been decided that upon such a general return we are not permitted to intend that the copy was left with the town clerk on the day thus stated ; but are bound to look to the true time when the copy was actually delivered to the town clerk. 4 N. H. R. 431, Kittredge vs. Bellows.

It appears by the statement of the parties in this case, that [51]*51the copy of the return of the attachment, which the sheriff eventually made upon the writ, was left with the town clerk some time after the deed to the demandant was upon record ; and as it is the leaving a copy of the writ and return with the town clerk that constitutes an attachment, we are of opinion that no valid attachment of the demanded premises by virtue of the tenant’s writ was made, until the amended copy of the return of the attachment was left with the town clerk. And as this was left some time after the deed to the demandant was upon record, he is entitled to hold the land, and there must be

Judgment for the demandant.

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Richardson, C. J.,

delivered the opinion of the court.

The rule which has long been adopted in relation to extents upon real estate, and which has been applied in many cases, is, that it ought to appear by the sheriff’s return that the statute which regulates extents has been strictly pursued. Nothing is to be left to conjecture. Nothing is to be presumed in favor of the extent. Every thing essential to pass the title must be expressly stated, or necessarily implied in what is stated in the return. 2 N. H. R. 495, Mead vs. Harvey; 4 do. 329 & 548; 3 do. 45 & 85; 6 do. 520.

In this case it does not appear by whom one of the appraisers was appointed. It is very probable that he was appointed by the officer who made the extent. But this is not stated; nor is it necessarily implied in any thing that is stated. This is a fatal objection to the extent. It does not appear to have been made in the manner prescribed by the statute.

And we are satisfied, that no amendment of the officer’s return of the extent in this case can avail the defendant.

It is settled, that it is the leaving of the copy of the original writ and return with the town clerk, that constitutes an attachment. 5 N. H. R. 275, Bank vs. Burnham.

In this case, all the doings of the sheriff in relation to the attachment by virtue of the tenant’s writ, are returned under the date of May 11, 1833. And it has been decided that upon such a general return we are not permitted to intend that the copy was left with the town clerk on the day thus stated ; but are bound to look to the true time when the copy was actually delivered to the town clerk. 4 N. H. R. 431, Kittredge vs. Bellows.

It appears by the statement of the parties in this case, that [51]*51the copy of the return of the attachment, which the sheriff eventually made upon the writ, was left with the town clerk some time after the deed to the demandant was upon record ; and as it is the leaving a copy of the writ and return with the town clerk that constitutes an attachment, we are of opinion that no valid attachment of the demanded premises by virtue of the tenant’s writ was made, until the amended copy of the return of the attachment was left with the town clerk. And as this was left some time after the deed to the demandant was upon record, he is entitled to hold the land, and there must be

Judgment for the demandant.

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9 N.H. 48, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cogswell-v-mason-nhsuperct-1837.

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