
    Thompson vs Morris.
    Debt.
    Error to the Clarke Circuit.
    
      Case 15.
    
      Sheriff’s return. Service of process.
    
    
      September 21.
    The case stated.
   Chief Justice Robertson

delivered the Opinion of the Court.

Mason Morris, assignee, sued John H. Tribble and JIainey Thompson as joint obligors in a promissory note.

The process being returned “executed on Thompson,” but “not found” as to Tribble, the Circuit Court abated the suit as to the latter, and rendered judgment against Thompson, after overruling his motion to quash or compel the sheriff to amend the return of “not found,” on the ground that it was false.

Whether the Circuit Judge erred in overruling that motion, is the only question presented for revision.

It appears that early on the morning of the return day, Morris’ attorney met the sheriff on his way from the country to Court, and took from him the process, cndorsed as it was, when the judgment was rendered, and that, immediately on the arrival of the'sheriff in Winchester, where the Court was to be held, and before the process had been returned to the clerk’s office, Tribble presented himself and required the sheriff not to return as to him, "not found.”

It is the duty of a sheriff having original process, when the same can be served before the return day has passed and before actual Teturn thereof to the clerk’s office, to serve the same on all the defendants.

Sheriff’s return of ‘not found’ on original process, if proved to tre CouTllobe false, should be quashed, or amended so as to conform to the truth of the case.

Caperton and Houston fox plt’f; Hanson for def’t.

Upon these facts it seems to this Court that the return "not found” was improper and should have been either quashed by the Circuit Judge, or amended by the sheriff so as' not to have permitted the abatement as to Tribble, and the judgment against Thompson alone.

As it was the oOicial duty of'the sheriff to execute the process, if he could, before he had actually returned it on the return day thereof, either the return, as made in this case, was false or the attorney of Morris prevented the officer from doing his legal duty and returning the truth and upon either hypothesis, Morris had no right to the judgment against Thompson alone, and the Circuit Court ought to have directed the sheriff to return the special facts as they had occurred, and which, if substituted, as they should have been, for "not found,” would not have authorized the abatement as to Tribble. The statutory privilege of abating as to a co-obligor, upon a proper return of "not found,” as to him, should be care, fully guarded against perversion from its just purpose to the injury of a party whom it was never intended to affect, lohen his co-obligor could, by reasonable vigilance, be served with'process at any moment before the return day had passed, and before the actual return to the clerk's office.

It is not material to enquire whether there is any cause for inferring that Tribble had intentionally eluded the sheriff, so as to prevent a judgment against himself at the appearance term; for, as there is no reason for apprehending any connivance by Thompson, he should not be prejudiced by the improper conduct of another, over whom he had no control, and with whom he does not seem to have colluded,

It is, the efore, considered that the judgment be reversed and the cause remanded, with instructions to quash the teturn of "not found,” as to Tribble.  