CHAPTER XVI. RETURN OF THE WRIT BY THE OFFICER, WITH HIS DOINGS. After the writ has been served in one of the ways before mentioned, and on, or before the return day named therein, it is the duty of the officer, to make a return of it, with his doings thereon, to the court or justice, from whom it issues. This is done in pursuance of the last command in the writ; and strictly, the officer should return it directly to the court, that is, to the clerk's office, or to the justice; but by the practice in many counties, he returns it to the attorney, from whom he received it. The return of the officer's doings, should be in writing upon, or annexed to, the writ, and be signed by him. It must specially state the manner in which he has served the writ, and should specify all the facts necessary to shew, that he has duly served it.' And the written return should set forth the whole of his doings, for it is a general rule, that parol evidence cannot be admitted, to contradict or explain an officer's return.2 The officer's return should also state the amount 1 Slayton v. Chester, 4 Mass. Rep. 478. 96. Same v. Same, 11 Mass. Rep. 163. Bott v. Burnell, 9 Mass. Rep. Rep. 325. Vide Wellington v. Gale, 13 Mass. Rep. 483. 2 Ibid. Davis v. Maynard, 9 Mass. Rep. 242. Purrington v. Loring, 7 Mass. Rep. 388. Bean v. Parker et al. 17 Mass. Rep. 591. Ingersoll v. Sawyer, 2 Pick. Rep. 276. of his fees for the service of the writ, and the items of charge, or he will not be entitled to them.' And if he claim extra compensation in serving a precept, for removing or keeping property, he must return a bill of particulars of the expenses, together with his affidavit, that such expenses were actually incurred, and that the charges are reasonable, not be allowed.2 -or they will An officer can never Amendment of return. falsify his return upon a writ, to protect himself:3- nor will he, after having returned his precept, be permitted to alter or amend his return, so as to affect the rights of others, who are not parties.1 But an officer will be permitted to alter or amend his return, according to the truth, where the rights of others are not concerned, at any term after it is made, upon motion.5 The precept of the writ directs the officer to make a return thereof at a time specified. It might be a question, whether he ought not to write the return, as soon as he has made the service, that, in case of his death, the service may be of record. In cases of attachment, where writs are frequently in the officer's hands, for long periods, it would be well to have complete memoranda made on the writ, at the time. 1 Stat. 1795. ch. 41. s. 1. 2 30th Rule C. C. Pleas. Appendix B. 3 Weld v. Rep. 82. Bartlett, 10 Mass. Rep. 470. Simmons v. Bradford, 15 Mass. 4 Williams et al. v. Brackett, 8 Mass. Rep. 240. › Thatcher et al. v. Miller, 11 Mass. Rep. 413. Welles et al. v. Bat telle et al. 11 Mass. Rep. 477. Commonwealth v. Parker et al. 2 Pick. Rep. 550. Under any other practice, numerous and important attachments must depend upon the life of almost every sheriff and deputy sheriff. And the failure might be considered a loss through his neglect, for which his estate would be responsible.1 1 Vide Ingersoll v. Sawyer, 2 Pick. Rep. 276. CHAPTER XVII. ENTRY OF ACTIONS. 1. In the Court of Common Pleas. The writ having been duly issued, served and returned, the action, if it be intended further to prosecute it, must be entered in the court, or before the justice, to whom the writ is returnable.' " Formerly, by Stat. 1782. ch. 11. s. 6. no action could be entered in any Court of Common Pleas, after the first day of the sitting thereof, except when the party was prevented from entering it, by inevitable misfortune or accident." But by Stat. 1820. ch. 79. s. 7. it is provided, that the Court of Common Pleas, created by that act, "shall have power, from time to time, to make and establish all such rules for the entry of actions," &c. "as may be thought proper, provided the same are not repugnant to the laws of the Commonwealth." The statute last cited operates as a repeal of the preceding, and has placed the whole subject, at the disposal of the court, in the Court of Common Pleas, as in the Supreme Judicial Court.2 In the county of Suffolk. The Court of Common Pleas, in pursuance of its authority, has adopted for Note. In those actions, which, from having been settled, or for any cause, it is not intended to prosecute further, the writs, which have been returned to the clerk's office, are placed by him upon the file of "non-entries," and nothing further is done with them by either party, unless subsequently taken therefrom, to be entered by leave of court. 2 Thompson et al. v. Hatch & Trs. 3 Pick. Rep. 512. the county of Suffolk, the rule for the entry of actions, made by the Boston Court of Common Pleas, and which is the following, namely: "A list of all actions intended for entry, shall be delivered to the clerk, on or before the evening of Thursday of the first week of each term, and shall be entered by him, and the new docket prepared for the examination of the gentlemen of the bar, and for entering of appearances, by nine o'clock in the forenoon of Saturday of the same week; and no list of entries shall be received by the clerk, after the evening aforesaid, nor any action be entered, excepting by order of court, after the time aforesaid :—and in all cases, in which actions shall be entered by order of court, after the time aforesaid, no attendance shall be taxed for the plaintiff, previously to the time of entering such action: and if the defendant shall be defaulted the first term, in any action so entered, no appearance having been entered for him, no attendance shall be allowed to the plaintiff.1 The mode of entering actions in Suffolk, as well as the time, is fixed by the foregoing rule. In counties other than Suffolk. No rule seems to have been established, for the entry of actions, in the other counties of the Commonwealth. The practice in them, however, is the same as was directed by Stat. 1782. ch. 11. and all actions must be entered on the first day of the term, with the exceptions named in that statute. No action can be entered in the Court of Common Pleas, in any county other than Suffolk, unless the 135th Rule C. C. Pleas, and third rule referred to therein. Appendix B. |