Gardner v. Hosmer

6 Mass. 325

Opinion

Parsons, C. J.

The defendant, having pleaded the general issue, at the trial offered to give in evidence, either to maintain the issue on his part, or in mitigation of the damages, that his deputy’s return on the original writ was not true. This evidence was objected to by the plaintiff, and was rejected by the judge, and if it ought by law to have been admitted, the verdict is to be set aside, and a new trial granted.

It is our opinion that the sheriff can give nothing in evidence, which his deputy could not, were he the defendant; and we are satisfied that the deputy could not be permitted, either in pleading or by evidence to the jury, to falsify his own return.

Although, in an action for a false return, the plaintiff may falsify it by evidence, yet the officer making a return, which is, on the return and filing of the writ, a matter of record, cannot be admitted to contradict his own return. If it were allowed, much mischief to parties would result from it, and much uncertainty in judicial proceedings would be the consequence. We are, therefore, satisfied that a new trial cannot be granted. As to any hardship, the officer may always avoid it by returning the truth; or when the truth is not certainly known, he may make a special return of the facts.

Let judgment be entered on the verdict.