
    Isaac Clarke, Junior, et al. versus Joseph Lyman.
    Where a deputy sheriff, having in his hands a writ of attachment, by direction of the creditor’s attorney, but not in his presence, altered the date and the return day of the writ and attached upon it property of the debtor, it was held, that the writ was void as against a creditor at whose suit he subsequently attached the same property.
    This was an action against the sheriff of Hampshire for the default of his deputy, Austin Smith, in falsely returning that certain property attached by the deputy on the plaintiffs’ writ against one Blood, was subject to two former attachments ; whereas if any such attachments had been made, they had been made upon writs made, drawn and wholly or partially filled up by Smith, while such deputy, and so were of no validity.
    It was agreed that two writs against Blood, one in favor of C. Clarke, the other in favor of O. Warner, returnable at the November term 182S of the Common Pleas, were duly delivered to the deputy, with directions to attach the property in question, which was then in the custody of Warner. These two writs were drawn by the same attorney ; who, at the time of delivering Warner’s writ, directed the deputy, in case no alarm existed in relation to Blood’s stopping payment, not to complete the service, but to alter the dates of the writs in such a manner that they should bear date the first day of service for the next March term, and to make them returnable at that term, and to attach the same property. Immediately after the expiration of the last day of service for the November term the deputy made the alterations as directed, in his own handwriting, and attached -the property. At about the same time the attorney for the plaintiffs delivered their writ to the deputy, who returned upon it an attachment of the same property as subject to the other two attachments. All the actions were entered at March term 1829 of the Common Pleas, and judgment was recovered in each at the ensuing August term. The executions thereon were all delivered to the deputy within thirty days from the rendition of judgment, and he applied the property towards the satisfaction of those in favor of C. Clarke and Warner.
    If the plaintiffs were entitled to recover, the defendant was to be defaulted.
    
      Sept. 27th,
    
    
      L. Strong, for the plaintiffs,
    cited Smith v. Saxton, 6 Pick. 483.
    
      Forbes, for the defendant,
    said the alterations had been made by the deputy, in conformity to the practice in Hampshire, which had had the sanction of lawyers of eminence ; and that to hold the writs void, would be the means of defeating many titles to real estate. The case is not within the spirit of the statute ; which was intended to prevent the increase of the number of lawsuits ; Prov. St. 32 Geo. 2, c. 3, preamble, (Ancient Chart. &c. 617) ; nor within the letter, inasmuch as the blank writs were not wholly filled up by the deputy. St. 1784, c. 28. The deputy was employed by the attorney to make the alteration, and it must be considered the act of the attorney. Fox v. Johnson, 3 Cowen, 20 ; Philips v. Caswell, 4 Cowen, 505.
   Wilde J.

afterward drew up the opinion of the Court. We have come to the conclusion, that the writs and attachments returned as having the right of priority to the plaintiffs’, were null and void ; and that the return, therefore, in this respect was false. The alteration of the writ, as made by the deputy, was in direct violation of the 3d section of the statute of 1783, c. 44. By that section it is provided, “ that no sheriff or b's deputy shall be allowed to draw, make or fill up any plaint, declaration, writ or process, and that all such acts done by either of them shall be void.” This prohibitory and nullifying clause extends as well to the filling up of any writ or process, as to the making or drawing of a declaration. The intention was to prevent the sheriff and his deputies from acting as attorneys, and in the same section they are accordingly prohibited to appear as such in any court, or before any justice of the peace ; or to draw or make any plea for any other person ; or to assist or advise any party in a suit; and all these acts also are declared void. The object of the provision was to prevent fraudulent practices, to preserve officers free from undue influences, and from the temptation of swerving from their duty, in preferring favorite creditors ; and it is a most wise and salutary provision ; and like all other provisions to prevent fraud and secure the public interest and safety, is to receive a liberal construction. It was framed according to the spirit of the 30th article of the Declaration of Rights, which prohibits the union of the executive, legislative and judicial powers of the government, or any two of them, in the same person or persons. The sheriff and his deputies have great and confidential powers intrusted to them. Their returns on writs and precepts are received as true; and are not to be controverted, except in an action for a false return, and then the falsity must be proved. The return is presumed to be true, unless the contrary be made to appear. This well established principle of law is necessary and essential for the security of these officers ; but it gives them great power, and they ought therefore, in the language of the Declaration of Rights, “to be as free, impartial and independent as the lot of humanity will admit.” To preserve them so, as far as possible, was manifestly the object of the section in question.

According to this understanding and construction of the statute, it would seem manifest that the deputy had no right to make a new writ, either by using a new blank, or by altering an old writ ; and that both acts are equally within the intention of the legislative prohibition. The intention was not to prohibit the filling of writs by unskilful persons, but to prevent the sheriff and his deputies from intermeddling with their precepts, or acting as the agents of either party.

But it is by no means necessary to resort to a liberal construction of the statute, for the act of the officer is prohibited and declared void in express terms. He was not “ allowed to fill up any writ or process ; ” it is therefore only a question of fact, whether he did or did not fill up the writ in question, and most certainly he did. After having erased the date and the return day in the old writ, he filled up the blanks with a new date and a new day of return ; which was all that was necessary to make a new writ. The old writ was functus officio, and rendered null by the erasures. A new writ was then made, and wholly made by the officer. For this he had no authority, and the direction of the attorney could give him none ; it was a direction to do an act prohibited by law. The alteration was not made under the dictation of the attorney, he being present; but the officer was directed to act as the agent and attorney of the plaintiffs, and to alter the writ or not at his discretion. The alteration therefore was the act of the officer, and not of the attorney, and so was wholly void. If however it were voidable only, it may be avoided by plea, and by any one affected by the attachments.

According to the agreement of the parties, the defendant is to be defaulted.

Judgment for plaintiffs 
      
       See Revised Stat. c. 88, § 29.
     