Caskey v. Nitcher

ORMOND, J. We consider the notice in this case sufficient. The objection is, that it is not alledged that the-sheriff failed to return the execution three days before the term of the Court, to which the writ was returnable. .The object of the notice is to in [624] form the sheriff what he is to answer, and it is impossible to suppose, that he was not distinctly advised that ho was proceeded against for a failure to return the process, to the term of the Court indicated in the notice, according to law. The same remarks apply to the objection, that it is not stated in the notice, whether the proceeding is had under the act of 1807, or 1819, as was held to be necessary in Hill v. The State Bank, 5 Porter, 537. The notice in that case was, “ the plaintiff will move the Court for judgment against you, according to the statute in such case made and provided,” and there being two statutes upon the subject, one giving a fine of five per cent, on the amount of the judgment, and the other the amount of the judgment itself, upon either of which at his election the plaintiff might proceed, this Court held the notice to.be too ambiguous in a case of this penal character. But in this case there is no ambiguity, or room for doubt. ' The sheriff is distinctly informed, that'the plaintiff goes for the amount specified in the writ of execution, which is in truth more definite, than if he had been referred to the statute conferring the right on the plaintiff The addition “ and the costs of this motion,” is the legal consequence of the motion, if successful, and certainly does not' vitiate it. The certified copy of the sheriff’s official bond was doubtless sufficient prima facie, that such a bond had been executed, and that the signatures to it were genuine. It appears that the bond was received, and approved by the Judge of the County Court; it then became a record of his Court. The statute, (Clay’s Dig. 164, § 15,) requires, that it shall be recorded, and that a copy of the record shall be evidence, unless the Court thinks proper to requii’e the original to be produced. This would be done in proper cases, when the authenticity of the bond was questioned by^ plea. No such plea was interposed in this case, and nothing shown to cast suspicion upon the certified copy, which was therefore evidence, quite as potent as the original, if produced, would have been. The statute, (Clay’s Dig. 336, § 131,) expressly requires the sheriff “ to return the writ three days previous to the term of the Court to which it shall be returnable,” and makes him liable to all the penalties provided by law, for a failure so to return it. A return therefore, two days before the first day of the return term, [625] unless there be some satisfactory excuse shown for the omission is, in law, no return. Let the judgment be affirmed.