
    L. De Villers ads. T. Ford, et. al. The same ads. John C. Prioleau.
    A return to an execution by a deputy sheriff, is a sufficient and legal return.
    To a scire facias upon a judgment, it cannot be objected that the judgment was founded'On a blank declaration which had never been filled ’ up until after the judgment badbeen entered; it is sufficient that at the hearing of the scire facias, the record when produced was perfect. If it be proposed to set it aside, another proceeding must be adopted.
    MOTION in arrest of judgment. — -Tried before Mr, Justice Huger, at Charleston, May Term, 1822.
    These were two actions of scire facias on bail bonds, and as they involved nearly the same points, they were tried together. The plea in each case was nul ticl record„ 
      Í'o Support íhe action, the plaintiff produced the ca. sa. in each case, and relied on the returns annexed to them, which were in the following terms, endorsed “ N. E. I, per Chiity,” and within “ C. C. Chilly, a true and lawful deputy, being sworn, returns non est inventus.”
    
    For the defendant it was proved by a witness Mr. L. P. Guirea, who was requested by the defendant to go to the clerk’s office to procure an exemplification of the original records to be used in Georgia, to apprehend one of the principals, that the clerk shewed to him a blank paper instead of the usual form of a declaration, in one of the original actions against the principals, which, it was contended, for the defendant, was no record.
    Judgment was given for the plaintiff in both cases.
    A motion was now made to arrest the judgments on the following grounds, to wit:
    -1st. Because the return on the ca. sa. was insufficient and illegal, being in so many words the return of the deputy, and not of the sheriff, when the law requires that the sheriff not only should make the return, but also upon oath.
    2nd. Because it was proved, that when the action was commenced against the bail in the latter case, that which was called a record had no existence, the verdict and judgment in the original proceedings being founded on a supposed declaration, which in'fact was a blank paper.
   Mr. Justice Richardson

delivered the opinion of the court.

The first ground taken in this case has been decided by the case of Belser vs. Graves, (1 Nott & McCord, p. 125.) There the return was elongata as tothe goods and nulla bona as to costs, and neither sworn to, nor signed by any one. ' In the case of the City Council vs. T. Price, (1 Nott & McCord, 300,) the return was the same, but as in the case before us, sworn to by the deputy sheriff.

As to the second ground, it is enough, that the record when produced, was perfect. It could not be impeached when collaterally introduced. In such a case, the court simply inspects the record, and decides according to the face of it. If the apperance bo perfect, it is enough. If it be proposed to set it aside, another proceeding must be adopted, and the party have an opportunity of amending it, before adducing it in evidence. This distinction applies to both grounds taken. If there be an informal retara to an execution, the motion should be to set it aside. But it is enough that the requisite return appears, when the execution is introduced, collaterally. In such case, whatever return is in fact upon the execution, we must suppose sanctioned by the proper officer. Any other rule would involve a case in too many unexpected issues ; would introduce the means of surprise, not to be guarded: against, and greatly endanger the necessary force and effect of records.

Cross fy Gray, for the motion.

Toomer, contra.

The motion therefore is dismissed.

Justices Nbtl, Huger and Johnson, concurred..  