Porter vs. Haskell & al., 11 Me. 177

Mellen C. J. Two questions are presented on the report of the Judge, the most important of which arises out of the objection to the admission to the jury of a copy of the execution, by virtue of which the defendant, Haskell, seised the goods of the plaintiff and sold them. By law the original execution should have been, not only under the hand of the magistrate who took the recognizance for the debt, but also under seal. Such however was not the fact.

Since the commencement of this action, the Justice, who was also the counsel for the defendant, placed a seal on the execution, while the cause was pending in the Court of Common Pleas. If no seal had ever been affixed to the execution, it is clear that the same could have furnished no defence for the defendants. The question then, is whether the Justice had any legal right to affix the seal as he did, and whether it legalized the precept and the act done under it.

In the case of Sawyer ex parte, cited in the argument, this Court permitted the clerk to affix the seal of the Court to an execution, after the same had been extended on real estate; and this is relied on as •an authority for the act of the Justice, in the present case. No other authority has been cited. We have found a case in 5 Wend. 276, Toof v. Bentley, in which a Justice of the Peace affixed a seal to an execution which he had issued, after the same had -been executed; but the Court decided that he had no legal right so to do.

In that case the Justice had acted judicially in the cause, and rendered the judgment on which the execution was issued; but in the case, before us, the Justice never acted judicially. He merely received the acknowledgment of the debt and look the recognizance; in doing which, he acted ministerially. There is, therefore, less reason for allowing the Justice, in this case, to affix the seal as he did, than there was to allow it in the case in New York.

So long as a seal is required to be affixed to writs and executions, though we may not be able to discover its real use, yet we must not dispense with what the law requires. For the reasons above stated our opinion is, that the execution gave the defendant no authority to seise and dispose of the goods; and that the copy of it was improperly admitted in evidence. In the above case of Toof v. Bentley, the Court noticed a distinction between the amendment there made, and those made in the higher Courts, where processes are issued by their clerks.

In such cases, the Court order the clerk to correct the errors he has made in issuing executions; but in Justices’ courts it has not been allowed. The duty of the Justice, having by law no clerk, is to make out executions himself, and to do it correctly; and he is bound to know what that duty requires. Should we sanction what wms omitted and then what was done by the Justice, it may lead to dangerous consequences, considering what a vast number of magistrates there are in commission within the State — all liable to mistakes of a similar character.

On the whole, our opinion is, that the verdict must be set aside and a New trial granted.