Smith v. Burnham

58 N.H. 205

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1877
• Status: Published

Opinion

Clark, J.

If the plaintiff’s attachment was prior to that of S., it was the duty of the deputy to levy the plaintiff’s execution, and the defendant is liable for the refusal of his deputy to perform that duty. If the deputy’s return on the plaintiff’s writ is conclusive in this case, the plaintiff’s attachment, for the purposes of this case, was subject to that of S. The question is, whether that return is conclusive.

In many cases, an officer’s return is conclusive. Bolles v. Bowen, 45 N. H. 124. But the right of action against the officer for a false return, shows that the return is not always conclusive in his favor, or against him. In some cases it may be contradicted. Lewis v. Blair, 1 N. H. 68. In any action to which the sheriff is a party, the return is prima facie evidence for or against him, subject to be impeached, contradicted, or varied like other prima facie evidence, by any parol testimony, or other competent proof. Angier v. Ash, 26 N H. 99, 105. This action is against the sheriff, and the return is not conclusive in his favor. The plaintiff’s attachment being prior to that of S., there must be

Judgment for the plaintiff.

Stanley, J., did not sit.