THOMPSON V. EASTBURN surv. admr. of TAYLOR

a party defendant, into Court. If he appears, the suit proceeds according to the course of the common law. If he does not appear, the Court acts upon his property, the proceeding is in rem, and if the sheriff has actually seized any of his property, by virtue of the writ, that property is immediately considered as in the custody of the law, and gives the Court jurisdiction to proceed in the cause. Suppose the defendant in this case, had appeared at the return of the writ; or at the second or third term, and moved to quash the writ, not on the ground of any irregularity in issuing it, but on the ground that the sheriff had not made a full and complete return of the manner in which he had served it; ought the Court to have granted the motion and dismissed the suit? I think not. The return, if necessary, might have been amended, or if the Court could see by the reture, a substantial service of the writ, they would hold on to the property attached, until the defendant by a personal appearance to the action, and a compliance with other requisites of the statute, should entitle himself to have the property delivered to him out of Court. If the sheriff, by omitting to do, or by omitting to return that he had done, something which the statute direets him to do, prejudices either party, he may be liable to respond for the injury done; but his omission will not deprive the Court of a right to proceed in the cause.

This is a remedial statute, and as well upon legal principles as by its own express enactment in the 32d section, is to be liberally construed for the benefit of creditors. The provisions of the 4th and 5th sections are merely directory, and a substantial compliance with them, is all that is necessary. If the sheriff should return, as follows "I have served (or executed) the within writ, in the manner directed by law, this day of &c," and sign

his name thereto, and annex an inventory and appraisement of the property attached, signed by himself and a freeholder, it would be sufficient. It is not like the case of a summons, in a Court for the trial of small causes; there the statute directs, not only how it shall be served, but that the officer shall return how he served it: and if he does not do so; or if by his return it appears he has acted unlawfully, or if it does not appear, when and how and on whom he served it, the justice has no right to proceed in the absence of the defendant; and if he does, it will be error.

EAKIN a creditor &c. v. CATTELL and KILLE, Assignees.

But the return in this case, does not shew any thing done, or left undone by the sheriff, contrary to law, it only fails to inform us that he went to the person or house of the garnishee, that he publicly declared that he attached, at the suit of the plaintiff in the writ, and that the person assisting him in making the appraisement, was an impartial freeholder: and yet all these things may have been done, in perfect consistency with his return. Judg. ment must be rendered for the defendant in certiorari. FORD and RYERSON, Justices, concurred.

Judgment for the Defendant.

EAKIN & creditor &c. v. CATTELI. and KILLE, Assignees of Joseph Clement an insolvent debtor.

On Certioran to Salem Orphans' Court.

1

The Orphans' Cour under the act, of February 23, 1820, have no jurisdiction of the proceeding, until after the payment of the dividends, by the Assignees, upon the clams settled by the Court of Common Pleas.

The Orphans' Court are then to settle the final accounts of the assignees, of the manner in which they have discharged their trust.

This was a proceeding upon an assignment, under the act of

EAKIN a v. CHattell and KiLLE, Assignees

23d of February 1820, Rev. L. 674, regulating voluntary assignments for the benefit of creditors.

The opinion of the Court, was delivered by

RYERSON, J. The assignment which led to these proceedings, was made under "An act to secure to creditors an equal and just division of the estates of debtors, who convey to assignees for the benefit of creditors;" Rev. L. 674. But the return to this writ, shows a wide departure from the act, in the attempt to carry it into execution. When the claims on the estate assigned, were presented to the assignees, they reported the same to the Court of Common Pleas, to be there acted on according to law. So far all was right. But how the proceedings escaped from that Court into the Orphans' Court at this stage, is to me a mystery. It is nevertheless true in fact, if not in law. For we presently find the latter Court active in the matter, receiving from their Surrogate, a statement and report of the claims, for their allowance, and their decree thereupon, for a distribution of the estate. All this proceeding in the Orphans' Court, was coram non judice. It belonged to the Common Pleas to settle what claims were to be paid under the assignment and the statute. This being done, that tribunal was functus officio; their power at an end. The assignees should then have proceeded, without the decree, order or direction of any Court, to pay pursuant to the direction of the statute. When the money has been disbursed, and not before, can the Orphans' Court be appealed to; and simply, to settle the accounts of the assignees, of the manner in which they had dis charged the trust. But this point in the progress of their duty, has not yet been reached. All that we can now do, is to declare void whatever has been done, or attempted, by he Orphans' Court. This will open the way for the due retu of the claims to the Common Pleas. If they shall not decide or have not decided thereon according to law, a certiorari to that Court, will enable us to review and correct their procedings. tion of their supposed errors, in adjudicating upon allowed, seems to be the object sought by the plaintiff in certiorari. This object can never be attained by a certiorari to the Orphans' Court.

The correc

the claims

GRISCOM and al, v. GILMore.

It is therefore proper that the decree of the Orphans' Court, be declared and adjudged null and void; and the accounts and claims, be remitted to the Court below, to the end that they be delivered to the Assignees, or handed over to the Common Pleas, to be proceeded on according to law.

HORNBLOWER, C. J. and FORD, J. concurred.

The proceedings of the Orphans' Court, declared and adjudged null and void.

BENJAMIN GRISCOM and al. v. SAMUEL GILMORE.

On Certiorari to Salem Pleas, in matter of private road.

A return of a road signed by four of the surveyors, without shewing that the other two were present, or had notice of the time and place of meeting, is fatally defective.

The return stating the beginning point of the road; to be at or near a certain place is too vague, so also if its termination is expressed in the same or like

terms.

The return should set out the road in its whole length, with such precision, that the landholders, and he or they who may have to open or use it, may have no difficulty in ascertaining where they have a right to travel, or where they would be trespassing.

The opinion of the Court, was delivered by

RYERSON J. This writ brings up the record of a private road. The report of the surveyors runs thus.-"We the subscribers six of the surveyors" &c. But the return is signed by four only;

16 105 70 325

GRISCOM and al v. GILMORE.

and whether the other two were present, or whether they had any notice of the meeting, no where appears on the return of the Certiorari. This appears a fatal defect, according to the current of decisions heretofore made. In The state v. Burnet, 2 Green, 385; in conformity to which several later cases not reported have been decided.

The surveyors further say, they think and adjudge part of the road, as applied for, necessary, and then proceed to lay out the same in two separate parcels ;-the first as follows-"To begin at or near the north-west corner of Samuel Gilmore's land which he lately purchased of Thomas F. Lambson, and from thence north eight degrees west, twenty one rods, to or near the southeast corner of a lot of land belonging to Samuel Gilmore, which he lately purchased of Jacob Fox, and there to end." Now this at or near is too vague. Does near a point mean, one foot, one rod, one chain, or what other distance from it? And on which side, north, south, east or west? Who can tell from the return, where the road is intended to be? The return in this particular, follows the application, and the order of the Court. But the application, and appointment of surveyors may perhaps, without impropriety, leave some latitude for the exercise of their discretion. They however can leave none to those who must follow, to open and work the road. Their return should set out the road in its whole length with such precision, that the land-holder, as well as he or they who have occasion to open or use it, may have no difficulty in ascertaining where they have a right to travel, or where they would be trespassing. There is nothing in the return to remove this uncertainty. It should be quashed.

HORNBLOWER C. J. and FORD J. concurred,

Return quashed.