The opinion of the court was delivered by
Thе sheriff’s return on the summons in this case is, that it was executed “by leaving a copy thereof at the usual place of residence of the defendant.” A motion was made to set aside the return. On this motion an affidavit was read which shows that the defendant is a non-resident, and had been for several months before this action wss commencеd, and had no residence in this State; that the copy of the summons was left at the house of the father of the defendant, who makes the affidavit. The court set aside the sheriff’s return.
Can a sheriff’s return be thus shown to be false? This is a subject much discussed in this country by the courts, and no uniformity of decision is to be found. It is a general rule of the English common law thаt the court will not try the truth of an officer’s return on a motion to set aside the proceedings, but the party must resоrt to his action against the sheriff for false return: Comyn’s Dig., Bei/wrn, E, 2. The English rule is convenient, and under the practice there is not open to the objections that lie to it in this country where the statutes have made such radical changes in process as well as in practice. At common law the action was commenced by a service of the writ by the officer. The declaration was afterwards served by delivering a copy, and this service was to be proved by affidavit;
We are aware it is a question of evidence and not of pleading; but we know of no statute that makes a sheriff a final and exclusive judge of where a man’s residence is, or what is the age of a minor, or who are the officers of a corporation, or where their place of businеss is; and when the statute made it the duty of the sheriff to ascertain these facts it did not make his return of such facts conclusive. Of his own аcts his knowledge ought to be absolute, and himself officially responsible. Of such facts as are not in his special knowledge he must act from information, which will often come from interested parties, and his return thereof ought nоt to be held conclusive. How it may be on mesne and final process we