
    Charles Graves ads. Jacob Belser, Executor of C. Belser, Assignee of Steedman, Sheriff.
    Tire return of the sheriff is good, although, it does not appear on the execution, that it was sworn to.
    Tried before Mr. Justice Grimke, at Charleston,- January Term, 1817.
    This was an action of debt against the defendant, as a security on a replevin bond. A judgment had been formerly obtained against John Allport, the principal, for a return of the goods distrained, for payment of the rent in arrear; upon which, an execution de retorno habendo c.um. ji. fa. was issued, and returned by the sheriff. The present action was then commenced against the security to the replevin bond, for the amount of the rent in arrear, specified in the judgment against John Allport, the principal. At the trial, the execution against John Allport, the principal, *was produced in evidence, by which it appeared that the only return made on it, prior to the commencement of this suit, was in the following words : “ Elongata as to the goods, nulla bona as to costs,” without the signature of the sheriff, or any other person, showing by whom the return was made. There was another return endorsed on the execution, but it was admitted at the trial, to have been made only two days anterior to the trial and by Mr. N. G. Oleary, who is not the present sheriff. By the testimony of a witness, on the part of the plaintiff, it appeared that the latter was the usual return in the sheriff’s office. And on his cross-examination he proved that the regular return of the execution ought to have been made during the term of office of sheriff Steedman, but that it was, in fact, made during the term of office of N. G. Cleary, the successor of sheriff Steedman, whose term of office had expired.
    Here the testimony on the part of the plaintiff closed ; and a motion was made by defendant’s counsel for a nonsuit, on the grounds, that the return of the execution was informal, irregular, and insufficient to maintain the issue.
    The motion was overruled by the presiding Judge, who directed the jury to find a verdict for. the plaintiff.
    A motion for a new trial was now made on the following grounds:
    1. That his Honor the presiding Judge refused to order a nonsuit in this case, conformable to defendant’s motion, notwithstandig the execution in replevin against John Allport, the principal, was not returned on oath conformable to the Act of Assembly, (2 Brev. Dig. 216, 1 Faust, 42,j in such case made and provided ; and which return was legally indispensable, before an action would lie against the defendant, his security in the replevin bond.
    2. That his Honor also refused to order a nonsuit, notwithstanding the said execution was informally returned by the plaintiff in the first instance, viz. “ elongata as to goods, and nulla bona as to costs,” without *any other words ; and the formal return was not made till within three days of the trial of the cause.
    3. That his Honor also refused to order a nonsuit, notwithstanding the execution was alleged to have been executed by O. J. Steedman, sheriff of Charleston district, and was not returned by the present sheriff, John R. Oleary, but was actually returned within three days of the trial of the cause, by N. G. Oleary, the intermediate sheriff, and successor of 0. J. Steedman, whose term of office had long since expired.
    
      H. A. Be Saussure, for the motion. Belser, contra.
    
      
       7 Stat. 264, § 10.
    
   The opinion of the Court was delivered by

Coloock, J.

It is not necessary, in this case, to consider the grounds separately, as they all relate to the informality and irregularity of the sheriff’s return. It is certainly not a regular and formal return, yet I do not deem it an insufficient one. The words “elongata tmd-nulla bona,” have a technical meaning, and convey distinctly the meaning of the sheriff, that the goods were eloigned, and that he could not find any property of which to make the costs.

The execution coming from the proper office, is evidence of the return being made by the sheriff, and the Court will presume that it has been sworn to. The Act of Assembly, in this respect, is merely directory to the sheriff.” It does not require that the oath should appear on the execution itself, and it is the usual practice of the sheriffs here, to swear to the returns before the clerk viva voee. If the return be false, the party injured may have his action. The last return, made by a person not having authority, neither adds to, nor diminishes the validity of the former.

The motion is discharged.

Gantt, Cheves and Johnson, JJ., concurred.

See 1 McC. 303; 2 McC. 145. 
      
       Post, 173.
     
      
       2 N & McC. 445.
     
      
       Post. 207.
     