
    Scudder vs. Wilcox and York.
    A writ of attachment is not, in contemplation of law, to be considered as returned, until the “ return day ” thereof, notwithstanding its actual return before that time.
    Though it is the duty of the officer to retain possession of the writ, until the “return day,” yet if he return it, net served, sooner, and the plaintiff, within thirty days after the “return day,” give notice by advertisement, as prescribed by \ *4759, C. In, judgment will not he set aside — all other proceedings being regular — on the ground of such premature return.
    
      October Term, 1869.
    
      of the Circuit Court for the County of Allegan,
    In this case a writ of attachment was issued ivlarch 31st, 1869, against,the defendants as absconding debtors — writ returnable May 4th, 1869.
    Certain real estate in Allegan County was attached, and on the 6th day of April, 1869, the sheriff returned the writ to the clerk of said comity, who filed the same iu his office, in the village of Allegan, with his written return thereon endorsed, showing that no personal service was made by him on either of the defendants.
    May 19th, 1869, notice was published of the pendency of said suit, under § 4759, C L., and neither of the defendants appearing in said suit, on the 3d day of August, 1869, the defendant’s default was entered; and on the 4th of August, second default entered, and judgment rendered thereon, on reference'to the Court to assess the plaintiff’s damages.
    At the next Term, October, 1869, the defendant’s counsel moved to vacate the judgment, on the ground that the Court had no jurisdiction to render it, for the reason that the notice was not published in time. That the thirty days within whlcq to'publish notice, commenced to run from the day the Sheriff returned the writ of attachment into the Clerk,s office, and not from the return day mentioned in the writ.
    
      J. W. Breese, for Plaintiff.
    
      Williams & Humphrey, for Defendants.
   Brown, J.

The notice having been published within thirty days after the “return day ” mentioned in the writ, the requirements of the statute were complied with.

On the argament, counsel contended that if the “ return day,” instead of the actual return of the writ, was to govern the time of advertising, then the actual return in this case, was premature, and all subsequent proceedings unauthorized.

There is, doubtless, much force in this suggestion; for, personal service should be had if possible, and a substituted service, by advertisement, is only to be resorted to when the person of the debtor cannot be reached by process.

As the writ, in contemplation of law, is not to be considered as returned, until the “ return day ” thereof, if the defendant should come within the officer’s bailiwick, before that-time, it would be the duty of such officer to serve his' writ; and though he may have actually deposited it with the Clerk, I caff see no reason why he might not, in such case, take it again for service. However, the better — if Dot the only correct — practice, is, for the officer to retain the actual possession of the writ until the return day.

Motion denied.  