Howe v. Ransom

•Hutchinson, J.

expressed-his opinion dissenting from thatofthe court, as follows: I cannot feel satisfied with the opinion now delivered. It is a case attended with some difficulty. We found it so in the County Court: but after devoting much more time to it then than we have now,we made the decision which is now reversed*

I feel-no difficulty in so-far agreeing with my brethren, as to' admit, that under certain-circumstances, a sheriff majr make hi non est return upon an execution soon after he receives it, and lilis be fair and-binding upon the bail. -It maybe publicly known that the debtor-has so entirely absconded that search will be of no use* The bail may -be in failing. circumstances : hence it might be proper to make speedily all the search -he -intended to make, and close his return, so that the creditor might have his action against the bail. My -difficulties are not of this kind. Here, the sheriff on the nineteenth day of June returns his execution to the Clerk? with a very ceremonious return thereon endorsed, dated about five weeks previous, and written in-the past-tense. He says “I then S£ repaired to the usual abode of ¿the debtor, and made demand “ of goods, &c. and none were shown me, nor could 1, by the “most -diligent search-throughout my .precinct, find the body of “the said debtor.” In strictness of speech, this return contains no assertion thathe had made any search at all for the body, but rather that he took it for granted that he could not find him by searching. -But I lay no stress upon this. This return covers no time but the day of its date ; whereas it should cover all past time after he received the execution. Yet I pass from this to what is more important. The return certainly covers no time after its date. There were then about five -weeks, in which the officer might have seen the debtor every day, with the execution alive in his hands, and yet this return might have been true. Whatever the officer states in his return is binding upon the bail in this action. The plaintiff might recover of the sheriff for a defective return. The bail can meet it in no way but in his defence as ho now urges it. Now, while the bail is -bound by the officer’s return, in reference to the facts it contains, he has a right to claim-*284of the officer a full return of facts that should exist to charge him. He has a right that the sheriff shall date his return when he returns his execution to the office, and, at that date, say he has made diligent searcNand cannot find the body. I cannot but view this return as studiously worded so as may be true; and yet, to charge the bail, without more and different facts,'would be a fraud upon him. I regret the trouble to the parties by our decision in the County Court, but my mind is some relieved by the conclusion to which the court have arrived, to permit the demurrer to be withdrawn, and a special plea, such as once was filed in the action, to be again filed, and the fact litigated before the jury, whether the debtor might have been apprehended,with reasonable search, during the period not comprehended in the sheriff’s return, and during which the execution was alive in his hands.

Notjs — The above cause was tried again at the April Term, 1828, on a traverse to such a plea in bar as above alluded to, and the defendant obtained a verdict.