Heywood v. Hildreth

If land attached on mesne process be seized on execution within thirty days from the judgment, it is sufficient, although the proceedings on the execution are not completed until after the thirty days have expired; and in such case, the officer may date his return as of the day of the seizure, to which day all the after proceedings have relation.

This was an action of the case against the defendant, as sheriff of the county of Middlesex, for a false return of an execution by' one of his deputies. The facts, as contained in an agreed statement, upon which the case was submitted to the opinion of the Court, were shortly these: — One Samuel Jones, being seised of certain lands in fee, on the 4th day of October, 1809, conveyed the same in fee to the plaintiff and one Timothy Brown, as tenants in common, who were then ignorant of any encumbrance on the said land. On the 13th of September, 1809, one John Chandler caused the same land to be attached in an action commenced against the said Jones and another ; and such proceedings were had in that action, that Chandler recovered * judgment therein at the Supreme Judicial Court holden at Concord, in April, 1810, and within thirty days from the rendition of judgment, viz., on the 26th of the same April, sued out his execution thereon in due form of law, and on the same day delivered it to Jame$ Lewis, a deputy of the defendant, by whom the land was attached on the original writ, to be extended on the same land. On the 9th of May, 1810, Lewis entered on the land, seized it by force of the said execution, and caused three freeholders to be duly chosen and sworn to appraise the same, who, on the same day, viewed the land, with other parcels seized on the same execution, and agreed on the value of each parcel by the acre. The said Lewis and the appraisers then separated; and no further proceedings were had on the execution, except surveying the land, and selling Jones’s equity of redemption .n some other land, until the 31st day of said May, when the said Lewis and the appraisers again met upon the land, and, the quantity in each parcel having been ascertained, completed" their certificate, and signed the same. The appraisers considered themselves at liberty, at their said second meeting, to alter their former appraisement of all or any part of the land. One of them, at the request of Lewis, and in the interval between the two meetings, ascertained the boundaries of the land. On the 31st of May aforesaid, the said Lewis made his return on the execution, and dated it on the 9th of May, certifying that he then levied the execution on the land, &c., delivered possession thereof to the attorney of the creditor, and returned the execution satisfied to the amount of the land appraised, d¿c. Afterwards, and within three months from the said 9th of May, the execution, appraisement, and return, were recorded, and duly returned into the clerk’s office. If,.upon these facts, the Court should be of opinion that the p'aintiff was entitled to judgment, the defendant agreed to be defaulted, and that the plaintiff’s damages should be ascertained by a jury ; and if otherwise, the plaintiff * agreed to become nonsuit, and that the defendant should have judgment for his costs.