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LYNDS WHEELOCK vs. TIMOTHY HALL
October 1, 1825 - Opinion
Case records
Open case page| Date | Record Text | Type | Party | |
|---|---|---|---|---|
| October 1, 1825 | LYNDS WHEELOCK vs. TIMOTHY HALL Current page | Opinion | Supreme Court | Reporter |
LYNDS WHEELOCK vs. TIMOTHY HALL.
Where a sheriff returned upon an execution, tiiat he had given notice j)ajj ^ under date of the return day, returned “non est inventus," but did noi?^otii that he had kept the execution in his hands during the intermediate time, in'k scire facias against the bail it was held, that it must be presumed, that the sheriff kept the execution in his hands during the hncrmenu*,. time, and the return was held to be sufficient.
Tins was a scire facias against bail, and was submitted to the decision of the court upon a statement of facts, in which it was agreed, that the defendant became bail; that judgment had been rendered against the principal; that execution had issued and had been delivered to a deputy sheriff, who had returned, that he had given notice to the bail, that lie had the execution, &c. and, under the date of the return day, lie returned “ non est inventus,” but did not state in his return, that he had kept the execution from the time, when lie gave notice, until the return day; and the question was, whether this return was sufficient to charge the bail 1
Alexander, for the plaintiff.
J. Barker, for the defendant.
By the court. This case differs from the case of Butter-ick vs. Atkinson, lately decided in Hillsborough county. In that case, there was no date to the return. But here, it appears, that the officer had the execution in his hands on the return day; and the question is, whether we can presume from this, that he had kept it in his hands from the time he gave notice to the bail, until he returned it ? And we are of opinion, that it may be presumed, that he so kept the execution. It is in his hands when he gives notice; and also on the return day. There is no reason why we should suspect, that it might have been out of his hands in the intermediate time. Although it would have been better, if the officer had returned the fact expressly, that he kept the execution; still we are, on the whole, of opinion, that the return is sufficient.
Judgment for the plaintiff.