#### Henry v. Green.

Argued Thursday, March 10th, 1814.

i. Sheriff’s Return — Judgment on* — Case at’Bar. — If the sheriff’s return bn a writ he “executed and committed to jail for want of hail,” judgment ought - not to he entered against the defendant and hail, hut against the defendant only ; notwithstanding a bond purporting to he a hail bond was returned with the writ.

See Quarles v. Buford, 3 Munf.

An action of covenant was brought in the County Court of Halifax, by Berryman Green against James Ryburn. The sheriff made return on the writ, “executed and committed to jail for want of bail,” and also returned “with said writ a bond,” which was set forth in haac verba by the clerk in the transcript' of the record, and purported to be a bail-bond executed by the defendant, with John Henry, security for his appearance. At the next rules in the clerk’s office, “the defendant being arrested and not appearing,” a common order was entered against him, and the said John Henry, as his bail. That order was afterwards confirmed, and a writ of *enquiry awarded, upon which a verdict was found, and judgment entered. A writ of supersedeas on the petition of John Henry, was granted by the superior court of law ; whereupon the judgment being affirmed, he obtained a second supersedeas from a judge of this court.

Wickham for the plaintiff in error.

The judgment was entered against Henry, not only without any return by the sheriff, to warrant it, but in direct opposition to the return. The act of assembly,(b) is express in requiring as a warrant for a judgment against appearance1 bail, that the ‘ sheriff shall return “the name of the bail by him taken.”

The writing purporting to be a bond ought not to be presumed to be genuine, in opposition to the return, which says, that the defendant was committed to jail “for want of bailand, if genuine, the plaintiff in error ought not to be charged thereby, when it appeared of record that the defendant was in actual custody, so that the bond was a nullity.

Munford, contra.

It cannot be said correctly that the clerk entered the judgment without any return to warrant it; for the bail-bond itself, under the hand and seal of the defendant and his bail, was returned to the clerk’s office by the sheriff. This fact, as well as the incorrect return on the back of the writ, is stated in the record, the truth of1 which is not to be contradicted. Neither is the judgment in direct opposition to the return endorsed on the writ; for, though the defendant was committed to jail on the day the writ was executed, he might (as was the fact) have given bail before the return-day ; and the mere omission of the sheriff to state that additional circumstance (though a neglect of duty in him) could not vitiate the proceedings, or render the bond a nullity. The bond, which proved that the defendant was no longer in - actual custody, (having been admitted to bail) was returned by the *93sheriff together with the writ, and is as much a part of the record as the written return which proved that he had been in custody ; and both might stand together ; there being no irreconciliable contradiction between *them. The return on the writ was indeed defective ; the sheriff being required by law to endorse the name of the appearance-bail : — but such a defect as this, in a return, is (I apprehend) at all times amendable.

It is true, that in the case of Echols v. Graham, 1 Call, 492, it is said by Judge Lyons, in delivering the opinion of the court, that in the sheriff’s return upon an execution, the names of the slaves taken should be endorsed, “in order to prevent purchasers from being deceived but, it was not decided in that case, that the sheriff’s omitting to make such endorsement rendered the levying of the execution illegal, or a forthcoming bond taken in pursuance of it void. The point decided was, that, by taking a second execution before the slaves taken under the first were disposed of, the plaintiff waved the first execution, and relinquished his lien on the property ; but it is strongly implied, (a) that if such had not been the case, and the rights of purchasers had not been in question, the names of the slaves might have been ascertained by testimony, notwithstanding the failure of the sheriff to endorse them on the execution.

In Bullit’s Executors v. Winstons,(b) it is settled that “parol evidence is admissible to prove that a fi fa was levied, though no return was made upon itand that “the sheriff may be permitted by order of court to make a return,upon an execution, or amend it, according to the truth of the case, at any time after the return-day.”

Even in a mill-case, (in which great strictness generally is required,) it was determined, in Coleman v. Moody, (c) that “it is sufficient for the clerk to state in the record, that the writ of ad quod damnum with the inquisition annexed was returned by the sheriff, without inserting a copy of the signature of the sheriff, or his deputy, to the return ; a copy of the inquisition itself, with the signatures of the jurors, being inserted in the record.” So here I contend, that the clerk need not have inserted the return written by the sheriff on the writ, but might have contented himself with mentioning that the sheriff returned the writ “executed,” together with a bail-bond, which, being inserted at full length, is sufficient to charge *the bail. The clerk’s doing more than was necessary, by setting forth the words of the written return, cannot invalidate the bond ; for it is a maxim, that “utile per inutile non vitiatur.”

The thing chiefly important is, that the sheriff should return the bail-bond, or a copy thereof, (d) When the bond itself is returned, more is done to bind the bail than when his name only is endorsed on the writ. In the latter case, the circumstance, that no bond is returned, affords strong ground for presuming that the sheriff has made a false return; and, in fact, the bail cannot be bound but by a bond ; whereas, in the case where the bond itself appears, it is not to be presumed a forgery : neither ought the sheriff’s neglect of duty in another particular to impair the obligation of the bail, when it plainly appears that he has bound himself under his hand and seal.

Wickham, in reply.

The certificate of the clerk, that the paper returned with the writ was a bond, is not sufficient to make it one. He had no right to say any thing more, than that it was a writing purporting to be a bond. It might not have been genuine; or it might have been given provisionally ; the sheriff might have kept it to see whether the plaintiff would approve of it. His return, that the defendant was in custody, was inconsistent with the bond.

It is true that he could have amended his return ; but he has not done so. The plaintiff should have moved the court to permit him to amend ; but this he failed to do. Shelton v. Pollock & Co. (e) was not so strong a case as this : for in that case there was no contradiction between the return and the bond.

Saturday, March 19th, 1814.

*

See generally, monographic *note*on “Sheriffs and Constables” appended to Goode v. Galt, Gilm. 152; monographic *note*on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.

(b)

 Rev. Code, 1st vol, ch. 67, sect. 20, p. 87.

(a)

1 Call. 494-5.

(b)

1 Munf. 269.

(c)

4 H. *&*M. 2.

(d)

 Shelton v. Pollock & Co. 1 H. & M. 422.

(e)

1 H. & M. 422.

JUDGEROANE

pronounced the court’s opinion, “that, the sheriff in this case not having returned that the plaintiff was bail for the appearance of the said James Ryburn, the judgment of the County Court is erroneous as to the plaintiff in error.”

Both judgments reversed, and judgment entered that the ^defendant in error recover against the said James Ryburn (1) one hundred and thirty pounds, the damages by the jury in their verdict assessed, and his costs by him about his suit in the said County Court expended ; and further that the plaintiff in error recover against the. defendant his costs by him expended in the prosecution of his writ of supersedeas in the said superior court of law, as well as his costs in this court.

(1)

 Munford suggested to the court the propriety of entering the judgment against the defendant and the sheriff; that officer having made himself liable by failing to make a proper return of the writ. But the court said that this could not be done, without giving the sheriff an opportunity of defence ; and that, if the return was incorrect, the proper remedy of the plaintiff was by action against the sheriff.— Note in Original Edition.