Ryan v. Lander

89 Ill. 554

• Court: Illinois Supreme Court
• Decided: September 15, 1878
• Status: Published

Opinion

Per Curiam :

The only ground for reversing this judgment, which has been seriously urged, is that the court ordered this plea to be stricken from the files. By the strict rules of the common law of England, the return of an officer could not be contradicted by plea or proof. The only remedy for a false return was by action against the officer.

In this State, that rule has been relaxed, and under certain circumstances a contradiction of the officer’s return has been permitted.

The ground upon which this modification of the practice has been upheld is, that otherwise, very serious injustice might result to the party, for which an action against the officer would be, in many cases, a remedy wholly inadequate. This plea, however, was not verified by affidavit, or otherwise. In no case, to which our attention has been called, has a plea, contradicting the return of an officer, been received or tolerated, without a verification upon oath. We think the court below was right in striking the plea from the files for the reason that it was not so verified.

The judgment must be affirmed.

Judgment affirmed.