
    Rob and Neilson against Moffat.
    NEW-YORK,
    May, 1808.
    Where a writ JJ^JJand the sheriff _ return-on wfhch^he ^eded*' and" obtained judgment by default and execution, the court ordered all the proceedings to be set aside, with costs, on condition, that no action should be brought against the sheriff for a false return.
    ROOT, for the defendant,
    moved to set aside the judgrnent and execution in this cause, for irregularity. He read an affidavit stating that the deputy of the sheriff to whom the capias ad respondendum was directed in the cause, called on the defendant on the Sunday preceding the second Monday of November last, and asked the defendant whether he would consent to a service of the writ on that day, which was objected to; and that no writ was served on the defendant before or after that day. That supposing the writ would of course be returned nan est inventus, the defendant paid no further attention to the cause, nor did he know of any proceedings until he was served with an execution.
    
      I. V. D. Scott, contra.
    The truth or falsity of a return is not to be tried by affidavit. The defendant ought to seek his remedy by an action against the sheriff for a false return.
   Per Curiam.

The defendant may take a rule to set aside the judgment and execution, with costs, provided he stipulates not to bring an action against the sheriff for a false return.

Rule granted.  