Anon. — 23 Wend. 101

Majority

p. 101

Anon.

Headnote

“Where a sheriff or other officer is in default for not returning an attachment, the court in term, time will allow an attachment against such officer and appoint an elizor to serve the same; and under peculiar circumstances will appoint such elizor residing in a county other than that in which the defendant in the process resides.

Where a new sheriff has come into office, the process will be directed to him, and an elizor will not be appointed.

A motion was made for a non-bailable attachment against a coroner of

p. 102

Niagara county, for not returning an attachment against .the sheriff of that county, and it was also moved that an elizor residing in the county of Albany, be appointed to execute the process, in consequence of the difficulty of having process of this kind served in Niagara,

The statute, 2 R. 8 . 537, § 17, authorizes the issuing of an attachment against a sheriff or other officer who makes default in returning, by the return day, an attachment delivered to him to be served, “ upon the same being allowed by a judge of the court, or by some officer authorized to perform the duties of a judge, upon proof of such default.” Notwithstanding the terms of the statute, the application maybe made to the court in term time, and it is the most convenient course, as an elizor can be appointed only by the court.' It is not necessary that the elizor should be a resident of the same county with the officer in default; and under the circumstance attending the collection of debts for some time past in the county of Niagara, we will appoint an elizor residing in the county of Albany, to serve this process. Had a new sheriff come into office since the default, we would have ordered the attachment to be directed to him.

Ordered accordingly.