Eastabrook v. Hapgood

10 Mass. 313

Opinion

By the Court.

The sheriff’s return is conclusive upon the point. If the persons were not freeholders, he is liable to the [ * 315 ] party injured for a false return. Under the agreement * of the parties in the case at bar, the plaintiff is entitled to judgment (a)

Defendant defaulted

Note. — The Chief Justice, referring to the assessment of the damages in this case, observed that the value of the dowager’s life estate was to be calculated from the late Dr. Wigglesworth’s table, published in the Memoirs of the American Academy of Arts and Sciences, (2) which he said had been adopted by this Court, as a rule in estimating the value of life estates, since its publication.

ADDITIONAL NOTE.

[See Tilson vs Thompson, 10 Pick. 359. — F. H.

Footnotes

(a)

[It does not appear what return me officer made, or that his return was false The case submitted for the opinion of the Court finds the facts as they were, without insisting upon, or alluding to, the return of the sheriff; and, in the absence of evidence to the contrary, it should have been presumed that the sheriff made his return accordingly. In the argument of the plaintiff s counsel, however, it is stated that the sheriff returned that he had caused the dower to be set off by three disinterested freeholders. And probably the case is defectively stated in the report. If not, it cannot be distinguished from Boston vs. Tileston, (11 Mass. Rep. 468,) where the Court say that the return of the officer that the appraisers were disinterested freeholders would not have been traversable, but that the parties had removed that objection, by agreeing upon the facts.

As to the conclusiveness of the officer’s return, see Lawrence vs. Pond, 17 Mass. Rep. 433.—Bott vs. Burnell, 9 Mass. Rep. 96. 11 Mass. Rep. 163. —Bean vs. Parker, 17 Mass. Rep. 591.— Winchell vs. Stiles, 15 Mass. Rep. 232.— Slayton vs. Chester, 4 Mass. Rep. 478. — In Phillips on Evidence, (7th ed. voí. i. p. 391,) it is laid down that “ the return of the sheriff upon a writ is primdfade evidence of the fact there stated, when that fact comes incidentally into question, even in an action between third persons.”.— See Rex vs. Elkins, 4 Burr. 2129.— Cator vs. Stokes, 1 M. & S. 599. — Gyfford vs. Woodgate, 11 East, 296.—2 Phill. p. 391. — Dalton says there can oe no averment directly against the return of the sheriff in the same action, except m the cases he mentions, but that one may traverse directly, and aver against the return of the sheriff in another action. —Salt. Sh. 191. — Saund. Plead, and Ev. vol. ii. 963. Among the excepted cases are those where the life or inheritance of the party is in jeopardy, or his suit would otherwise abate, or he have no other remedy. —Dalt. 191. —Gibson vs. Brook, Cro. Eliz. 859. — Via. Ab. Ret. O. 22, 3d ed. iv. p. 20. — And where the party cannot aver against the sheriff’s return, he may show that the person making it is not sheriff, (Arundel vs. Arundel, Yelv. 34.--indrew vs. Lynton, 1 Salk. 265.—2 Lord Raym. 884. — Saund. Pl. and Ev. 963;) though the return is primd facie evidence of the fact.— Tyler vs. Duke of Leeds, 3 Stark. N. P. C. 218.

As to the grounds of'the action upon the covenants, it does not clearly appear whether the plaintiff counted upon the usual covenant that the premises were “ free of all encumbrances,” or upon the covenant to warrant and defend against the claims and demands of all persons. In Prescott vs. Trueman, (4 Mass. Rep. 630,) Parsons, C. J., says, “ A claim of dower is an encumbrance.” — See Harrington vs. Rydears, 1 Leon. 93— Com. Dig., Cov. E, 1. — But according to the opinion of the same -earned judge, and the whole Court in this and many other cases, the covenant was broken as soon as it was made; and the claim for damages, being a chose in action, was incapable of being assigned, (Marston vs. Hobbs, 2 Mass. Rep. 433. — Beckford vs. Page, 2 Mass. Rep. 455. — Caswell vs. Wendell, 4 Mass. Rep. 108.— Wyman vs Ballard, 12 Mass. Rep. 304;) and so it has been often held by other courts. — Mitchell vs. Warner, 5 Conn. Rep. 497. — Davis vs. Lyman, 6 Conn. Rep. 249. — Green vs Wilcox, 2 Johns. 1. — Hamilton vs. Wilson, 4 Johns. 72. — Kane vs. Sanger, 14 Johns. 89. — Abbot vs. Allen, 14 Johns. 248. — Lewes vs. Ridge, Cro. Eliz. 863 — See, too, Shep Touch. 170, ed. by Peyton. In this view of the case, the plaintiff could not have succeeded in his suit. But the English courts have held that like covenants were “ in the nature of covenants to do a thing toties quoties, as the exigency of the case might require; ” and that “ there was a continuing breach,” so that the assignee might recover for “ a substantial breach in his time.” — Kingdom vs. Nottle, 4 M. Selw. 55.—1 M. & S. 355. — King vs. Jones,5 Taunt. 418. — 1 Marsh. 107.—And see M’Cready vs. Brisbane, 1 Nott & M'Cord, 104. Since which our own Court appears to be willing entirely to change its ground__Sprague vs. Baker, 17 Mass

(2)

Vol. ii. p. 131.