Hinman v. Borden
New York Supreme Court
Error from the Oneida common pleas. Borden sued Hinman in a justice’s court for a false return of non est inventus, upon a ca. sa., made by a deputy of Hinman, sheriff of Oneida, in a suit against one Harris, for whom Borden was special bail. On the trial before the justice, the defendant had a verdict and obtained judgment for costs. The plaintiff sued out a certiorari.
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Error from the Oneida common pleas. Borden sued Hinman in a justice’s court for a false return of non est inventus, upon a ca. sa., made by a deputy of Hinman, sheriff of Oneida, in a suit against one Harris, for whom Borden was special bail. On the trial before the justice, the defendant had a verdict and obtained judgment for costs. The plaintiff sued out a certiorari. From the return, it appeared that a ca. sa. in the suit against Harris was delivered to the deputy on the 29th day of June, 1830, returnable on the 5th day oí July, thereafter. Hams resided in Utica, and had a family there,…
1Opinion of the Court
*369 By the Court,
Sutherland, J.
This is a clear case of a fraudulent and false return by the defendant’s deputy, and the court of common pleas very properly reversed the judgment of the justice. Even upon the testimony of the deputy himself, who was examined as a witness, there was a total want of due diligence. He says he inquired of some of the defendant’s neighbors if he was at home, and was informed that he was not, but he never went to the defendant’s house, who lived in the same village; and Harris, the defendant in the execution, swears that he was at home attending to his ordi nary…
2Cited by14 opinions
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- Dailey v. FentonAppellate Division of the Supreme Court of the State of New York · 1900
- Elmore v. HillWisconsin Supreme Court · 1881
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