Deacle v. Deacle

Opinion by

Mr. Justice Fell,

The plaintiff in this case brought an action of ejectment against the defendants, and the deputy sheriff who had the writ was told to serve it on Thomas Deacle as their agent. He made the service as directed, and wrote the return to that effect on the back of the writ. The plaintiff’s attorney having seen the return on the writ when it was in the office of the sheriff or the prothonotaiy, entered a rule of reference under which arbitrators were chosen, who made an award. The sheriff under the advice of his counsel, and before the return day, prepared a new return of nihil habet as to the defendant, and this return was pasted over the return first written.

Two rules to show cause were then granted by the court, one on motion of the defendants to set aside the award of arbitrators, and the other on petition of the plaintiff to reinstate the original return. The first of these rules was made absolute, and the second discharged; and this action of the court is assigned as error.

It is not competent for the sheriff to alter or amend a return which has been made. If the writ in this case bore his return and was delivered to the prothonotary, his control over it had ended, and any alteration by him without leave of the court was unauthorized and invalid.

The question whether there had been an alteration by the sheriff of a return made, or only a refusal by him to accept a return prepared by his deputy, but not actually made, and the substitution by him of a new one in place of it while the writ was still in his hands, was heard by the court of common pleas on depositions and decided in favor of the defendants. This question of fact was properly before the court, and the duty and responsibility of deciding it rested there.

If there was no service of the writ on the defendants it follows that all proceedings under the rule of reference were void, and the award of the arbitrators was properly set aside.

The judgment is affirmed.