Hinman v. Borden

[369] By the Court, Sutherland, J. This is a clear case of a fraudulent and false return by the defendant’s deputy, and the court of common pleas very properly reversed the judgment of the justice. Even upon the testimony of the deputy himself, who was examined as a witness, there was a total want of due diligence. He says he inquired of some of the defendant’s neighbors if he was at home, and was informed that he was not, but he never went to the defendant’s house, who lived in the same village; and Harris, the defendant in the execution, swears that he was at home attending to his ordi nary business, during the whole time between the delivery of the execution to the deputy and its return day; that he passed the office of the deputy frequently; that he is well known to the deputy; that he once before the return day saw and passed him in the street; and that on the morning of the return day, he was in the sheriff’s office, and there saw and conversed with the deputy; that he might at any time have been found, by inquiry for him at his house. Admitting that the plaintiff had a right to return the writ on the morning of the return day, and that if he had used due diligence before, he would not be responsible although he might subsequently have executed the writ if it had not been returned, still the evidence of gross negligence at least is decisive in the case. A sheriff is bound to use all reasonable endeavors to execute process. He should go to the house of the defendant to ascertain whether he is at home, and if not, to learn where he is—particularly where he lives in his immediate neighborhood ; and if, instead of pursuing that course, he chooses to rely upon the vague information obtained from casual inquiries in the street that the defendant is not at home, he does it at his peril. The evidence fully warrants the belief that the deputy did not desire nor intend to arrest the defendant in the execution. 2 R. S. 382, sect. 32. 3 Campb. 46. 5 Dowl. & Ryl. 95. 16 Com. L. R. 232, S. C. Judgment affirmed.