Barrett v. Copeland , 18 Vt. 67 ( 1844 )

The opinion of the court was delivered by

Royce, J.

We consider the rule well settled, that were this a case involving the truth or falsehood of the return, as between the parties to the original suit, or if the return was relied upon as evidence against this defendant, it should be holden as conclusive. Washburn’s Digest 354, and cases there cited. Lofft 371. Goubot v. De Crouy, 2 Dowl. P. C. 86. The same doctrine is established by numerous decisions in Massachusetts, and prevails, as I apprehend, in most of the states except Connecticut. It is there held, that the return, except as against the officer himself, is never more than prima facie evidence.

But the question now presented is, whether the official return of a public officer is conclusive evidence in favor of such officer, in the prosecution or defence of a collateral action. We find it laid down as undoubted law, that such a return is admissible evidence in the officer’s favor, as also to affect the rights of third persons. Gyfford v. Woodgate, 11 East 296, Phil. Ev., 1st Am. Ed., 293-4, Hathaway v. Goodrich, 5 Vt. 65, Stanton v. Hodges, 6 Vt. 66. But these authorities uniformly assert, thai when offered for such a purpose it is but prima facie evidence. Its admissibility is put upon the ground of the general credit due to the return of such an officer, in cases where it is his duty to make a return. But upon principle it should be subject to contradiction by third persons, because they are neither parties nor privies to the transaction, and because they would not, according to any precedent with which I am acquainted, be entitled to a remedy against the officer for a false return. It should also be open to contradiction collaterally as against the officer, even by. a party to the process. To hold otherwise, and put the party to his remedy for a false return, would produce a circuity of action neither warranted by analogy, nor required to meet the justice of the case. We are therefore of opinion, notwithstanding the decision to the contrary in 6 N. H. Rep. 393, that the plaintiff was entitled to go into evidence to disprove the alleged arrest at Middletown. And for the rejection of the evidence offered for that purpose, the judgment of the county court must be reversed.

Judgment reversed.