Law v. Ireson , 83 Mass. 61 ( 1861 )

Bigelow, C. J.

We can see no ground on which the respondent can with plausibility sustain his exceptions.

1. The writ of possession was duly recorded according to St. 1848, c. 144, § 1, and a certificate of such record by the register of deeds was indorsed on the execution. It was not necessary that the officer should state in his return that he had caused the process to be recorded. Indeed he could not do it. The statute requires him'to cause “his doings on the execution to be recorded within three months after the service.” This clearly implies that his return is to be completed before the record is made.

2. The writ of possession was properly admitted. It was duly returned into the clerk’s office; and its production from the proper custody rendered it original and competent evidence.

3. The judgment in favor of the petitioner, by which she recovered three eighths of the premises set out in the petition remains in full force. It is in no way impaired or affected by the subsequent action brought to recover five eighths of the same estate, in which the petitioner was nonsuited. The fallacy under which the respondent labors is in supposing that the five eighths demanded in the second suit included the three eighths recovered in the previous action. But there is no ground for any such assumption. On the contrary, the presumption is that the second action was brought to recover the residue of the premises, which were not covered by the previous judgment.

Exceptions overruled.