
    C. F. Mathewson vs. Dr. Philip Moore.
    To make out the proof of a return ofnonest inventus, in an action against the bail, it was held that the memorandum “ N. E. I. per Jackson,” •imd the following return“ 1 have, by my deputy, John T, Smart, 
      made diligent search for the defendant, hut could not find hi:r>, John B. Cleary, sheriff,” which purported to have been sworn to before one of the clerks of the Sheriff’s office, and signed in the hand-writing of such clerk, composed a sufficient return, the Sheriff arid Jffivavn both being dead, and no explanation to be obtained.
    Tried at Charleston, May Term, 1830.
    THIS was an action of debt on a bail bond, entered into by the defendant, as bail for Sandoz, in an action at the suit of the plaintiff. The plaintiff sued out a ca. sa. on the 'jdgment obtained against Sandoz, on which the following memorandum was endorsed :
    
      “ N. E. I. per Jackson.^' •
    
    And also the following return : •
    • “ I baye, by my deputy, John T. Smart, made diligent-search for the defendant, but could pot- find him. John. R. Cleary, Sheriff.”
    Which purported to be sworn to before Mr. Chilly justice of the peace. The signature of Cleary to this return was in the hand-writing of Mr, Chilly, who, on being sworn, stated that he was one of the sheriff’s clerks, and was accustomed, under his direction and authority, to make out and subscribe in his name, returns of the processes which passed through tfee office ; and without pretending to any distinct recollection of the; particular case, had no doubt that such was the fact. Smart and Jackson were both deputies of Cleary, the Sheriff, and the two last had died sometime before the trial; and Smart, who was called by the defendant to controvert the truth of the return, stated that he had no recollection that, the ca. sa. was ever in his hands, as the return purported, and ‘he was confident it was not, from the' circumstance, that the memorandum “ N. E; I. per Jackson,” was in the handwriting of Jackson ; and he drew from it the further conclusion that' it had been in the hands of Jackson, and that he had acted upon it. The defendant also offered evidence to prove that the contract on which the original judgment in the case of the plaintiff against Sandoz. was ¡Usurious, but it-was rejected by the, court. ' 1
    
      A verdict under the direction of the court was found for the plaintiff, and the defendant moved for a new trial on tho following grounds:
    1st. Misdirection of the court in charging the jury that the return to the ca. sa. was good.
    
      2d. Error in rejecting the evidence of usury.
   Mr. Justice Johnson

delivered the opinion of the court)

In order to charge the bail, the act requires that a ca. sa. shall be issued against the principal, and returned non est inventus; and hence, the contest in this case, whether this is or is not a true and sufficient return ?

For the defendant, it is insisted, that the memorandum, N. E. I. per Jackson,” is no return, and that the truth of the formal return is controverted by Smart, the deputy, by whom the service is stated to have been performed.

It is not necessary to the purposes of this case to controvert the correctness of the first of these conclusions.— To say the least of it, the court would weigh well the consequences before it would lend its sanction to a practice so loose and equivocal, by giving to it a legal effect; but as a private memorandum intended to assist the sheriff in maliing out formal returns, it is at most harmless, and may be useful. It is objected further, however, that the formal return is falsified, by the circumstance, that the search was not made by Smart, the deputy, by whom the return states it to have been done. This objection may he, and probably is, in fact, well founded ; but Í think it does not follow that the return of non est inventus is falsified. The evidence of Smart is not a negation of the truth of the return, only so far as his agency is concerned ; but it does not follow that the service was not performed ; and that was all that was necessary to authorize the return. The Sheriff himself, or Jackson, or any other deputy was equally competent. And informal, and unclerieal, as the memorandum, N. E. I. per Jackson,” may foe as an official return, we know that it is used as ah index. |p the return of non est inventus, and without attaching further importance to it, all the difficulties on this point are solyed. It proves that the service required was performed by Jackson, and justifies the return, and that the introduction of the name of Smart was a mere clerical mistake, from which the most circumspect are not exempted. The death of both Cleary and Jackson, who could have given the explanations which the circumstances furnish, is an additional reason for giving effect to this return. It will not bé controverted that the judgment of the court is conclusive on the rights of parties and privies, and the rights of strangers are not affected by it, because they have no interest. Whatever, therefore, may be the relation in which th'e present defendant stood to the judgment in the ease of the plaintiff against Sandoz, he is concluded, and the evidence offered to show that the contract on which that judgment was founded was usurious, was properly rejected.

Crafts Sr Eckhard, for the motion.

Cross 4' Gray, contra.

The motion is refused.

Justices Colcock, Richardson and Huger, concurred»  