
    * William Gardner versus Joseph Hosmer.
    In an action against the sheriff for the misfeasance of his deputy, the defendant can give nothing in evidence which the deputy could not, were he the defendant. And the deputy could not, either in pleading or by evidence, be permitted to falsify or contradict his own return.
    Case against the defendant, as sheriff of the county of Middle-sex, for the misconduct of Peter Edes, his deputy. On the general issue pleaded and joined, a trial was had at the last November term, before Parker, J., and a verdict taken for the plaintiff, subject to the opinion of the Court on the question whether the judge, who sat in the cause, rightfully rejected certain evidence offered by the defendant in the course of the trial.
    The plaintiff, having sued out an original writ against one Asa Towne, delivered it to Edes, the defendant’s deputy, to serve, with a direction endorsed to attach property to the amount commanded, or to hold Towne to bail. Edes returned the writ on the return day, with the following return endorsed: “ I attached pioperty to respond the within demand, and gave a summons to Asa Towne.” The plaintiff prosecuted his suit to final judgment, sued out his writ of execution thereon, and within thirty days after the judgment, delivered it to Edes to be served. At the return day of this execution, Edes returned it, with a return endorsed thereon, that he had made diligent search for the said Towne, and could not find him, nor his property.
    The defendant moved, at the trial, to give in evidence, that when the above-mentioned original writ was delivered to Edes, the said Towne was insolvent, and had no property which could be attached ; that the property intended by the return on the writ of attachment was certain notes of hand delivered by said Towne to said Edes, as security upon certain suits then pending against Toione, the writs in which had been committed to Edes before the plaintiff’s writ against Towne; that the whole avails of said notes were consumed upon the other suits; that Towne kept himself secreted from his creditors, when the plaintiff’s writ was delivered to Edes; that he was soon after committed to jail for a debt of about eighty dollars, and was liberated by taking the poor debtor’s oath.
    * The motion to admit the foregoing evidence was [ * 326 ] overruled by the judge, and if the same ought to have been admitted, the defendant was to have a new trial; otherwise judgment to be entered on the verdict.
    And now Ward, for the defendant, in support of the motion for a new trial, contended that the evidence rejected at the trial was proper to maintain the issue on his part. Edes could not arrest the debtor, nor make a regular attachment of his property. Having those notes in his keeping which he believed sufficient for all the demands, upon which writs had been committed to him, he, with great good faith, returned that he had attached property to respond that demand. He does not say sufficient property. It turned out that he was mistaken in his estimate. There would be great hardship, that for such a mistake he must respond to the plaintiff the whole of a desperate debt. If the return of an officer is absolutely conclusive upon him, a new trial would be fruitless; but there must be cases where he shall be let in to evidence against his return; as, for instance, where he has by mistake attached the goods of a stranger.  If Edes could attach nothing but these notes, and if, by arresting the body of Towne, he would have added nothing to the plaintiff’s security, then certainly he may show this in mitigation of damages, if not as maintaining the issue on his part.
    
      Sullivan for the plaintiff.
    
      Gardner had good ground to believe that Edes had attached sufficient property to respond his demand, and therefore he prosecuted his suit, by which he was put to trouble and expense. Edes could not attach notes of hand, mere choses in action,  and he ought to have known this. But whether he knew this or not, his return is conclusive upon him,  and he is not entitled to the benefit of this evidence for any purpose. If the law were otherwise, every return would be' open to contradic tian by the officer who made it, and there would be an end of all confidence in returns. In the case of Fuller vs. Holden, the officer protected himself in his return * upon the [ * 327 ] original writ, and his return upon the execution was perfectly consistent with the first return.
    
      Ward., in reply. If Edes by mistake supposed notes of hand capable of being attached, and if, by reason of that mistake, the plaintiff has suffered to the amount of the costs of his action against Towne, does it follow that, for that cause, the plaintiff is entitled to receive from the defendant the whole amount of his demand upon a debtor who at the time was worth nothing, and who ¡mine diately after swore himself out of jail? The plaintiff’s action is for damages, and the defendant has a right to show the real amount of those damages.
    The opinion of the Court was delivered by
    
      
       4 Mass. Rep. 498, Fuller vs. Holden.
      
    
    
      
       1 Saund. 275, Rex vs. Sutton.
      
    
    
      
      
        Rol. Mr. 458. - - Cowp. 688, Rex vs. Mathews.
      
    
   Parsons, C. J.

It is our opinion that the sheriff can give nothing in evidence, which his deputy could not, were he the defendant; and we are satisfied that the deputy could not be permitted, either in pleading or by evidence to the jury, to falsify his own return.

Although, in an action for a false return, the plaintiff may falsify it by evidence, yet the officer making a return, which is, on the return and filing of the writ, a matter of record, cannot be admitted to contradict his own return. If it were allowed, much mischief to parties would result from it, and much uncertainty in judicial proceedings would be the consequence. We are, therefore, satisfied that a new trial cannot be granted. As to any hardship, the officer may always avoid it by returning the truth; or when the truth is not certainly known, he may make a special return of the facts.

Let judgment be entered on the verdict.  