Robinson v. Williams

14 A. 67, 80 Me. 267, 1888 Me. LEXIS 53

• Court: Supreme Judicial Court of Maine
• Decided: March 8, 1888
• Status: Published

Opinion

Peters, C. J.

The defendants, principal and sureties, set up in defense of an action against them on a poor debtor’s bond, that the bond and execution on which the bond was taken were not returned into the clerk’s office until on the last day before the bond expired. They contend that an omission to make the return within the lifetime of the execution released the bond.

' We are not satisfied that the statute affecting the question, requires such a rigid construction. It is a general rule that an officer shall return an execution within the three months. But the rule has exceptions. If he collects an execution and pays the money to the plaintiff or his attorney, his liability ceases. It is quite a common practice to deliver the execution to the debtor in such cases, although the safest and best place for it, for all concerned, is in the clerk’s files. 1 Bachus, Sheriff, 258 ; Tidd’s Prac. 928; Runlett v. Bell, 5 N. H. p. 438, and cases there cited.

There are frequent instances where it is not possible to return the execution within three months. If the service is made at the lust moment of the time, it cannot be. Still, it has never been seriously doubted that an officer has all of (he three months within which to commence a service, completing his work after the three months have expired. Shindler v. Blunt, 1 Sand. 683. Says Parsons, C. J., in Prescott v. Wright, 6 Mass. 20, " If an officer has begun to execute the execution at any time before it is returnable, he may complete the service after it is returnable, and retain the execution to indorse the service thereon, the whole of which shall have relation to the time when it commenced.” By R. S., ch. 76, § 5, it is provided that, in levying an execution upon land, the proceedings may be valid, although a part of them be made after the return day of the execution. Still, a literal compliance with the words of the, execution would not permit such latitude.

In Prescott v. Pettee, 3 Pick. 331, Parker, C. J., remarked that it was difficult to arrive at the tneauing of the legislature in regard to the return of an execution into the clerk’s office. He thought the requirement was " for some purpose merely directory.” It was held in that case, that, although an execution levied on land must be returned into the clerk’s office, in order to complete the title of the creditor, still, it would be sufficient, if returned at any time after the return day, but before it is offered in evidence. The same rule was applied in this state in Emerson v. Towle, 5 Greenl. 197 ; see, on same point, cases cited in True v. Emery, 67 Maine, p. 35.

At common law, a return of final process was not a regular duty of an officer. It was necessary to serve a rule upon him to make the return, if any person desired it done. Richardson v. Trundle, 8 C. B. (N. S.) 474; Bachus, Sheriff, § 262; Tidd’s Prac. 928. In Dane’s Abridgment, Vol. 3, ch. 75, article 12, the earlier American cases on the subject are collected and their application explained. The duty of returning an execution is now generally regulated by statute. In Murfree on Sheriffs, § 855, a late work, it is said, commenting upon the statutes of different states relating to the matter, that " the purpose designed to be accomplished by the return of process placed in the hands of the sheriff’, is that by it he may show what he has done in the matter, and what he has omitted to do, and why.” " And it may be further stated,” says the author, "that the statutory provisions which require sheriffs and constables to return writs of execution, and provide special remedies for defaults in doing so, are designed for the benefit of the plaintiffs in such executions, and are not available for defendants aggrieved by any omission.”

It would seem to be deducible, from these considerations, that the defense attempted to be maintained by the defendants in the case in hand, cannot prevail. Their injury is imaginary, not real, nor legal.

Exceptions overruled.

Walton, Danforth, Libbey, Emery and Haskell, JJ., concurred.