
    John Hovey versus Zachariah Lovell.
    In trover by an officer against a stranger, for a chattel seized on execution, the officer is not required to prove the seizure by a return on the execution, but he may prove it by parol evidence.
    Trover for a horse. Trial before Morton J.
    The plaintiff, a deputy sheriff, claimed the horse by virtue of a seizure on execution. He gave in evidence an attested copy of an execution issued upon a judgment in favor of one Breck against Donald Smith, and a copy of his return upon the same. By this return it appeared, that the plaintiff seized and sold divers articles in part satisfaction of the execution, but the horse was not mentioned. The plaintiff then offered to prove by parol evidence, that he seized the horse on the execution, as the property of Smith, that he put it in the custody of a keeper, informing him that he had seized it on the execution, and directing him to keep it until called for by the plaintiff, and that the plaintiff advertised it for sale on the execution in the usual manner of advertising property for sale on execution. To the admission of this evidence the defendant objected, but the objection was overruled, and the evidence admitted. The jury returned a verdict for the plaintiff; but if the parol evidence was inadmissible, a new trial was to be granted
    Metcalf, for the defendant,
    said the officer ought to produce a return of a seizure of the horse on execution, though his return wot,ld not be conclusive evidence in his own favor. 3 Stark. Ev. 1357, 1358. In Hammatt v. Wyman, 9 Mass. R. 138, it is held, that a purchaser at a sale under an execution, cannot prove the sale by parol evidence. In Wheaton v. Sexton, 4 Wheat. 503, the decision was different. Where a rescue may be returned, such a return is indispensable, whether to protect the officer, or to support a prosecution against the rescuers. Anonymous, 2 Salk. 586 ; Anonymous, 6 Mod. 141 ; Bac. Abr. Rescue, E 3.
    
      Leland and Gardner, contra,
    
    contended that the parol evidence was rightly admitted, and that a return by the plaintifl would not have been evidence in his own favor. Bean v Parker, 17 Mass. R. 601 ; Adey v. Bridges, 2 Stark. R 189. A sheriff cannot return a rescue upon an execution Mildmay v. Smith, 2 Saund. 344 ; Waldo v. Lambert, Cro Eliz. 868 ; May v. Proby, Cro. Jac. 419 ; Anon. 6 Mod 141. And in an action for an escape upon mesne process, a plea of rescue is good, without showing a return of the rescue. Hill v. Mountague, 2 Lev. 144 ; Gorges v. Gore, 3 Lev. 46 ; Anon. 6 Mod. 141. It is not necessary to return a taking on execution. Rowland v. Veale, Cowp. 20 ; Com. Dig. Retorn, F 1 ; Ingersoll v. Sawyer, 2 Pick. 279. Showing possession merely, under a claim of right, is sufficient to maintain the action against a stranger. Graham v. Peat, 1 East, 244 ; 2 Wms’s Saund. 47 ; 1 Chit. Pl. 151. The plaintiff’s right of action existed before any return was or could have been made.
   The Court

were of opinion that the evidence had been properly admitted, and the motion for a new trial was overruled. 
      
       See Clark v. Foxcroft, 6 Greenleaf, 296.
     