
    Kennedy vs. Smith.
    An officer is not liable on a motion, or otherwise, for the non return of an execution, if he has been requested by the plaintiff in the execution to hold it up, unless he has been instructed to proceed.
    If, on a motion against an officer for the non return of process, a deposition be produced, and rejected for informality in taking it, by which it appears the default in the officer was occasioned by the act of the plaintiff in the execution, it is the duty of the court to stay judgment until the deposition can be re-taken.
    This was a motion made against the plaintiff in error, as a sheriff, for the non return of an execution, in which the defendant in error was plaintiff. On the motion coming up, the defendant in the motion offered to read the deposition of a witness, which was objected to for informality in taking the same; and the objection being sustained, and the deposition rejected, the plaintiff in error moved the court to stay judgment upon said motion, and allow him time to obtain said deposition, founded upon his affidavit, stating that the witness was alive, and that he believed he could procure his evidence at the next term of the court; and that the facts, as stated and set forth in the deposition, were true; and upon said deposition itself, which, on its face, showed that the witness therein had deposed that the plaintiff in the motion, who was also plaintiff in the execution, bad requested the de-lendaiH in the motion to hold up said execution and not proceed thereon. The court refused to stay judgment upon said application, and refused to allow the defendant time to re-take said deposition, and gave judgment against said defendant; to which opinion of the court, defendant excepted,and prosecuted his appeal, in the nature of a writ of error, to this court.
    Craighead, for plaintiff in error.
    
      Rivers and Pillow, for defendant in error.
   Peck, J.

delivered the opinion of the court.

Admitting that the court properly rejected the deposition of the defendant in the execution, because not regularly taken, still that deposition shows such matter as should have induced the court to have stayed the giving of judgment until the deposition had been regularly taken. Certainly a stronger ground cannot well be conceived of, than that which is disclosed in the deposition.

The motion is predicated on the non-return of the execution; the proof is, that the non-return was produced by the act of the plaintiff himself; he had a right to control the execution, and if we believe the witness who gives the rejected deposition, did so, and having produced the default in the officer, he comes with an ill grace to ask judgment against him who obeyed his injunctions.

It is true, the officer might have returned the execution; but if, at the desire of the plaintiff, he held it up, and was not again instructed to proceed, the plaintiff must be taken as relying on his own judgment and management, and not on the act of Assembly; he, by his act, has made a law for himself and must be governed by it.

The judgment must be reversed, the cause remanded, and the defendant afforded an opportunity to procure his testimony.

Judgment reversed.  