And this term, declining to give the opinion of the court, as he was not present at the last argument (though he fully concurred with the other justices), Yeates, J. delivered the opinion of the court as follows :

The first point made in this case seems to admit of little *53doubt. The assertion that a sheriff or other ministerial officer may explain or contradict his returns “ of goods levied,” “ lands “sold” or “in custody,” on suits brought against him, founded on these returns, and while they remain in full force and unaltered, sounds strangely and appears unwarrantable. If a mistake has been made in a return, which ought to be corrected, the application for relief should be made to the tribunal from which the process issued, and into which it is returnable. They, in their discretion, can only grant the relief prayed for, in case the attendant circumstances warrant such interposition.

gether. The second and third points may well be considered to-That'the statutes of Westm. 2 and x Rich. 2, have been long practised under, I well know. My own experience on the subject extends back above forty years ; and I then took it to be generally understood that the practice had obtained long before my time. The act of 28th January 1777 declares that such of the statutes as have been in force in the late province should remain in force until altered by the legislature. In the language of the late chief justice, 1 Dali. 75, “we know “ that many statutes for near a century have been practised un“der in the late province, which were never adopted by the “ legislature; and that they might be adopted by usage, and so “become in force, is very clear.” There was no decision in Fuller v. Ash, tried here in September term 1795, which the defendant’s counsel has so much relied on; though in consequence of what dropped from the then chief justice, the plaintiff’s counsel submitted to a nonsuit, with liberty to move for a new trial. If these statutes are considered as convenient and applicable to our local circumstances, they will fall within the general rule of statutes made before the settlement of the colonies extending here. And why are they not thus convenient and applicable ? If the policy of the law allows imprisonment for debt, a slight acquaintance with judicial proceedings will assure us that it cannot be carried into effect unless a rigid rule is adopted, whereby the conduct of ministerial officers may be strictly examined. We are taught by experience that severe penalties are indispensably necessary to exact the faithful performance of the duties of sheriffs.

*If these two acts of parliament form a part of our civil code, the adoption of the English decisions under *- ^4 them forms a necessary consequence, at least, of those resolutions, which took place before the American revolution. Should it be objected that hard cases may happen by reason hereof, I admit the objection and freely concede that this is one of them. But I answer that general laws cannot be so formed as to exempt each particular case from inconveniences. It would be a greater mischief to have no general rule, whereby we may accurately judge of the conduct of public officers, in whom such extensive trust is reposed.

To leave the nature and degree of a sheriff’s negligence of *54judicial process, and the damages actually suffered by the plaintiff in consequence thereof, to the opinion of a jury, according to their discretion, without any known or established rule, would, in our ideas, introduce the utmost uncertainty, and be attended with the most fatal consequences in the administration of justice: and if any judgments have been obtained against sheriffs, for escapes on judicial process, within the last seven years,* they must necessarily be reversed, according to the doctrine advocated by the defendant’s counsel, on writs of error; which would be a great evil.

Whatsoever our personal feelings may be, under the circumstances of the present case, we find ourselves constrained to decide in favour of the plaintiff, for the whole debt recovered by the verdict.

Judgment for the plaintiff.