Whithead v. Keyes
Massachusetts Supreme Judicial Court
Tort against the sheriff of Middlesex county, for the default of his deputy. The facts which appeared at the second trial in the superior court were substantially the same as those which appeared at the first trial, reported in 1 Allen, 350. The objection heretofore taken, that the present action could not be maintained, because the plaintiff did not enter his action against Stoddard, the defendant in the original writ, was renewed; but Putnam, J. overruled it.
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Tort against the sheriff of Middlesex county, for the default of his deputy. The facts which appeared at the second trial in the superior court were substantially the same as those which appeared at the first trial, reported in 1 Allen, 350. The objection heretofore taken, that the present action could not be maintained, because the plaintiff did not enter his action against Stoddard, the defendant in the original writ, was renewed; but Putnam, J. overruled it. The deputy returned a rescue upon the writ, and the defendant contended that this return was conclusive; but the judge ruled that it…
1Opinion of the CourtMetcalf, J.
1. When ;his case was formerly before the court, (1 Allen, 350,) we decided that the averment, in the declaration *498that the writ against Stoddard was returnable to the court of common pleas, “ as by the record of the same writ, in the same court remaining, more fully appears,” was supported by proof that the writ was returned to the clerk’s office and placed in the files of non-entries. So the reporter understood and stated the decision, as he was authorized by the fact that the point was argued, with other points, and that the court granted a new trial “ upon a single ground,” namely, an…
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