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.
¶2It 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,”1have a technical meaning, and convey distinctly the meaning of the sheriff, that the goods were eloigned,2 and that he could not find any property of which to make the costs.
¶3The 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.”3 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.
