Russell E. Pullen vs. Nathan Haynes.
In scire facias against a trustee in foreign attachment, the defendant cannot prove an. offer to pajT the amount in his hands to the officer when demand was made upon him upon the execution, contrary to the officer’s return thereon.
Scire facias against Nathan Haynes as trustee in foreign attachment of Charles E. Underwood. The officer returned upon the execution in the original suit that he had made demand upon Haynes to pay over all goods and effects belonging to Underwood in his hands, but that he had wholly neglected and refused so to do, and the execution was returned unsatisfied. Answer, that the defendant did offer to pay the amount in his hands to the officer, and the officer refused to take it. The court of common pleas gave judgment for the plaintiff, and the defendant appealed.
C. R. Train, for the plaintiff.
F. F. Heard, for the defendant,
cited Rev. Sts. c. 109, §41, Tilden v. Johnson, 6 Cush. 359 ; Adams v. Cummiskey, 4 Cush. 420.
Metcalf, J.
This defendant was one of the parties to the execution, the return of which by the officer be now attempts to disprove. But no rule of law is better settled than this, namely, that the return of an officer, as to all matters which are properly the subject of his return, is conclusive, so far as it affects parties and privies to the returned process. Their only remedy for a false return is by action against the officer. Slayton v. Chester, 4 Mass. 478. Bott v. Burnell, 11 Mass. 165. Winchell v. Stiles, 15 Mass. 230. Bern v. Parker, 17 Mass. 601. Tilden v. Johnson, 6 Cush. 358.
Judgment for the plaintiff.