
    Southwick, Cannon & Warren vs. Joseph Weeks.
    Franklin,
    
      January, 1830.
    In an action against an officer for not keeping and delivering personal property attached by him on a writ in favor of the plaintiff, he will be allowed to prove that the samo property was, at the same time, attached by him on another writ in favor of the same plaintiff and against the same defendant, and that the amount of the judgement recovered in such other suithad been recovered of him by the plaintiff. The officer in this case had not stated in his return that one attachment was subject to the other.
    The plaintiff in this case was allowed to recover of the officer only the balance of property remaining in his hands after satisfying the judgement recovered against him for the same property in the other suit.
    This was an action on the case brought against the defendant, as sheriff of the county of Franklin, for suffering certain articles of personal property attached by him on a writ of attachment in favor of the plaintiffs against W. H. Wilkins and 8. A. Wilkins. At the trial in the county court the plaintiffs proved that the property in question had been attached by the defendant; that judgement had been recovered in the suit for about three hundred dollars, including damages and costs ; that execution had been issued, and given to the defendant, within thirty days after the rendition of the judgement, with directions to levy it on said property, an,j jhai ihe execution had been afterwards returned into the proper office within the life of ,it by B. Shepard, a sheriff’s deputy,. with a return thereon made by him, stating that he had demanded the property of the persons who had receipted it j that it was not delivered, and that he had returned the execution unsatisfied.
    The defendant, under a notice which had been given for that purpose with the general issue, offered parol evidence to prove that said property was the same which was attached at the same time on another writ in favor of the plaintiffs against said W. II. and S. A. Wilkins. The defendant also offered to prove by record that the amount of the judgement in that other suit had been recovered of him in a suit brought by the plaintiffs against him, and that he had recovered the same in a suit against the receiptors of the property. This evidence was objected to on the ground, that, as the officer’s return on the writ did not show this attachment to have been made subject to the attachment on the other writ, he was precluded from showing the facts by parol. The objection was overruled, and the evidence admitted, which proved the foregoing facts. It appeared that the value of the property attached had been agreed to at the time of the attachment at three hundred and fifty dollars.
    The court rendered a judgement for the plaintiffs to recover $31,16 damages, being the balance of the property remaining in the defendant’s hands after deducting the amount recovered of him in the other suit.
    The plaintiffs excepted to the decision of the court, and filed a bill of exceptions stating the foregoing facts, on which the cause was removed to the Supreme Court.
    
      Hunt & Beardsley, for the plaintiffs, contended, That the pa-rol evidence admitted by the court to show that the property had been attached on another writ, and had been recovered of the defendant in another suit, ought to have been excluded, inasmuch as the defendant’s return was conclusive against him — That if he had intended to have attached the property subject to another attachment, he ought so to have made his return — That if an officer returns that he has attached property on a writ, though no such property really existed, it is conclusive on him, and he cannot give p&rol evidence to contradict his return. Gardner vs. Hos-mer, 6 Mass. 325.
    
      Smith, for the defendant. — This is an action for a tort, in which the jury arc not restricted to any precise sum : they might give more or less than the amount of the judgement in favor of the plaintiffs against S. A. & W. H. Wilkins — as the object is to 'restore the plaintiffs to what they have lost (if any thing) by means of the neglect of the defendant. Colly vs. Sampson, 5 Mass. Rep. 312. — Weld vs. Bartlett, 10 Mass. Rep. 473. The evidence offered by the defendant, and admitted by the court, does not falsify or contradict the return by the defendant, as sheriff, on the writ against the Wilkins. It was admitted by the court to show the extent of damages which the' plaintiffs had sustained, and, in this point of view, it certainly was proper and admissible. But although the official return of the sheriff is usually conclusive between the litigating parties, it is not so when he himself is a party, 3 Starkie’s Ev. 1043. — 11 ílast. 206, Clifford vs. Woods at,e. — ~ 1 JV. H. Rep. 68.
   The opinion of the Court was delivered by

Paddock, J.

This action is brought against Joseph Weeks, the former sheriff of this county, to recover the damages the plaintiffs have sustained by means of the said Weeks not keeping safely, and delivering over to be sold on execution, certain property valued at $350, which the said Weeks, in the capacity of sheriff, had previously attached on mense process, at the suit of the present plaintiffs, against W. H. Wilkins and >S'. A. Wilkins. In the court below, after the general issue, with notice of special matter, had been pleaded, and after the plaintiffs had shown the facts of record necessary for sustaining their action, together with a legal demand 'upon the receiptors of the property, and a refusal on their part to redeliver it, the defendant, Weeks, offered parol evidence to prove the following facts, to wit ; That Southwick, Cannon 8c Warren delivered him two writs in their favor against the same W.H. Wilkins and S. A. Wilkins; that he made service of both at the same time, by attaching the same property on each writ; and also offered to prove the same by the records of the court; and that previous to the demanding of the property on the execution named in the present suit, the same property had been demanded on the execution issued on the judgement recovered in the other suit; and as it was not delivered up, these plaintiffs instituted their suit against this defendant, in which a judgement was recovered against him for $ ... . and that this defendant, in an after ■suit, recovered the same amount in a judgement against the re-ceiptors of said property. To the introduction of this testimony the plaintiffs objected : but the objection was overruled, and (tie evidence admitted ; and the plaintiffs recovered a judgement in their favor for $31,16 damages, being the balance of the amount of the property, (or the $350,) left in the defendant’s hands after satisfying the judgement recovered against him for the same propr erty, in the other suit.

It is contended by the plaintiffs that an officer’s return is conclusive upon him, and that great injustice and fraud might be the result of opening the door to let in parol evidence to do away or contradict officers’ returns. It is admitted as a general principle, that when an officer has made return of his precept, it becomes a part of the records of the court ; and the officer ought not to be let in with evidence to falsify his return. Such was the decision in Gardner vs. Hosmer, 6 Mass. Rep. 325. But the court do not consider, in this case, that the evidence admitted could haye the effect to falsify the return ; on the contrary, it admitted its truth, and set up new matter in avoidance of the effect of it. Such defences are very common, and which a variety of circumstances might give rise to. For instance, the ownership of the property might be doubted, (Bailey vs. Bates, 8 Johns. 185,) and then it is a statute right, p. 214. The property of a stranger might have been taken, (Fuller vs. Holden, 4 Mass. 498,) and a recovery in trespass against the sheriff; or the property might have been destroyed by some providential act; or the plaintiffs have sustained no damage, having had the entire benefit of the whole property. in short, trespass on the case being an action open for the jury to find such damages as the plaintiffs have sustained, any evidence, not contradicting the return, which goes to defeat the cause of action, or reduce the damages, the officer ought to have the benefit of. Weld vs. Bartlett, 10 Mass. 471. In case of an escape, the statute authorizes the sheriff to introduce testimony in reduction of damages, (p. 218,) and it would be doing manifest injustice to an officer to deny him the right of setting up such a defence. All the plaintiffs claim is, the damages they have sustained from the act complained of, and whether it exceeds or falls short of the former judgement, must depend on the proof in the case. It certainly was competent for the plaintiffs to have rebut-ed the defendant’s testimony, by showing that property other than that returned on the first writ was taken on the other ; but in the absence of any showing on the part of the plaintiffs,as to the property of the Wilkins, the fair presumption is, that they had no other which was attachable than that returned. And if such were the case, as the writs were both served at the same time, and the same property returned on both, where is the injury the plaintiffs have sustained, which they would not, had the return of one the property was taken on the other Writ also ? A case might be supposed where the same property being returned on a second writ between the same parties, would induce a belief in the plaintiff that he had obtained security for his demand, when in fact he had not. For instance, where the plaintiff knew the defendant had several horses, and upon a subsequent writ a horse should be attached, he would have good reason to suppose it was not the one which the same officer had taken on the previous writ, and would therefore rest quiet; when, had he known the fact, he might have caused other property to be taken. But even in such case, it will not be pretended that there could be a recovery against the officer without showing the fact that there was other property ; for it will be presumed that the officer did his business legally and faithfully,until the contrary be made to appear. 3 Stark. 1044. But here there was no reason to presume other than that the property was the same taken on both. The writs were both served at the same time, by the same officer; a variety of articles were attached, and all returned on each writ.

Hunt & Beardsley, for plaintiffs.

Smith, for defendant.

The majority of the Court are satisfied that the verdict did substantial justice to the plaintiffs ; therefore, the judgment of the county court must be affirmed.

Judgement affirmed.

Hutchinson, J. dissented.

The following dissenting opinion of Hutchinson, J., ought to have been inserted at the end of the case, Southwick et al. vs. Weeks; (see ante, p. 49;) but having been mislaid at the time that case was printed, it was omitted.

Hutchinson, J.,

considered the return of the defendant conclusive, that he had attached the whole, and not merely half, of the property described in his return. The creditors had a right soto understand the return of the officer, and conduct themselves accordingly, whether by treating their debt as perfectly secure, or, by seeking any further security in their power. A case might happen, where the creditor is present, and knows that the property attached by his writ is incumbered with a prior attachment, and there is no other property shown to the officer, that he might attach ; — a mere mistake of the officer in his return in this respect ought not to render him liable beyond the lien created by the attachment. The creditor, knowing all the circumstances, could sustain no injury. But, when the officer acts without such knowledge of the creditor, he acts upon his own responsibility, and must be bound by his return.

All that appears in this case, upon the subject, appears by the defendant’s return. That return shows that he attached the whole of the property described in his return. It does not appear that the creditors knew any thing about the matter, other than what they were informed by the defendant’s return; and he ought not now to be permitted to show, that he attached half only, of that property, when his return shows that he attached the whole of it.  