majority">Tompkins, J.,

delivered the opinion of the Court.

This is an action of trespass on the ease, brought in the Circuit Court of Montgomery county, by Palmer, the plaintiff in error, against Cram, sheriff of said county. The declaration contains two counts. The first count states, in substance, that N. and S. Lichton, being indebted to the plaintiff by bond, he, the plaintiff, on the 19th August, 1842, sued out a writ of attachment against them, returnable to the October term of that court, then next, and that, on the following day, he delivered that writ to Cram, the defendant; and that, on the said day, the defendant levied the writ on property of the said N. and S. Lichton; and that, afterwards, the said defendant, Cram, in order to hinder the said plaintiff, Palmer, in the collection of his said debt, voluntarily sold and delivered the said property, and converted the same to his own use, the plaintiff’s debt being still unpaid; and that Cram, the sheriff, afterwards, falsely returned on said writ, that he had executed it on the 20th of October, 1842, upon certain goods and chattels of said Lichton, in his return described, said goods being in the custody of the sheriff of said county, under an execution in favor of Aaron Reter, for the sum of $3,059 75, issued from the Court of Common Pleas of St. Louis, previously levied on them, and that the defendants, Lichton, were not found in Montgomery county.

The second count states, that the sheriff levied on the goods, with intent to hinder, &c., and then made the same false return..

The defendant pleaded two pleas, viz.:

1st. That he did not sell said goods and chattels, and convert the proceeds of the same to his own use; and concludes to the country.

2d. That the plaintiff did not prosecute his suit of attachment in the Montgomery Circuit Court with effect, but voluntarily abandoned the same, and concludes with a verification. To these pleas the plaintiff demurred. His demurrers were overruled; the court gave him judgment for costs, and he, the plaintiff, proceeds by writ of error, to reverse the judgment.

1st. Was it material to the merits of this cause, whether the sheriff, defendant *622in the cause, sold the goods, and converted the proceeds of the sale to his own use ? The injury complained of was, that the sheriff made a false return. He made a return, that no goods of the defendant in the attachment could be found, except some already levied on to satisfy executions, and that the defendants in the attachment were not found in his county. In neither case could he, Palmer, prosecute his suit in attachment to a judgment against the defendant: for neither goods nor chattels of the defendant being found, Palmer could not obtain a judgment in rem., there being no property attached to give the court jurisdiction in rem.; and the defendant himself not being found, jurisdiction over the person was not taken. Palmer, then, after this return of the sheriff, Cram, could not prosecute his suit against Lichton to judgment, because no property was found, by which he could he attached, and also, Lichton himself was not found. (See 4 McCord, 372. After an escape, the plaintiff may proceed immediately against.the sheriff, without further prosecuting his suit against the principal; so, for a false return. The demurrers to these two pleas, then, should have been sustained, and if any judgment on the demurrers had been entered up against the plaintiff, Palmer, that judgment would now be reversed. The entry is, “That it is considered by the Court, that the said second and third pleas, &e., are good, &c., to bar and preclude the plaintiff from having and maintaining his action thereof, &c., and that the plaintiff’s demurrers be overruled; and it is further considered, that the defendant recover his costs, &c., and that he have execution.”

A final judgment is entered thus: “ Therefore it is considered, that Palmer take nothing by his writ, &c., and that the said Cram go thereof without day, &c. (1 Saunders, 198.) The writ of error having been improvidently issued, when no final judgment had been rendered, there is no cause judicially before the Court, and the writ of error must be dismissed.”

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