The opinion of the court was delivered by

— If an officer would excuse himself by a return of languidus, and by that only, the return must show that the sickness was such as would endanger life to execute, the process, and that this continued up to the return of the process. This is all the plaintiff’s authorities show. If the officer finds the debtor thus sick, what is his duty ? It clearly cannot be his duty there to remain with the sick man, perhaps confined with a fever or the small pox, watching the sick man, for fear of recovery and escape. His duty is to use reasonable diligence in holding watch for his recovery *345or to make a return of the process, that the creditor may renew and put it into other hands. Now this reasonable diligence is a matter composed of circumstances. It depends on the nature of the disease under which the debtor is laboring, the nature or amount of the claim and all the other motives as well as opportunities of escape, location of the debt- or’s and officer’s residence,&c. If the utmost reasonable diligence is used and yet the debtor escape, or is carried off by those who are regardless of the hazard of his life, the officer is excused.

This is an action charging neglect in an officer in not levying and returning an execution. His return is evidence of the truth of every fact therein stated, of which he is a certifying officer. By that return it appears that when he first called on the debtor, with the execution, he found him so sick that he could not execute the process on his body, without danger to his life, for this is the substance of the return. This excused the want of arrest at that time. Had the officer depended on the sickness alone for his excuse, the return must have shown the sickness continued up to the time of the return. But the return states that,' within six days, on diligent search, the officer could not find the debtor, and it appears there was no property, and the execution was seasonably returned. Now this, alone, shows no neglect. This renewal of search may have been extreme vigilence, as that depends on circumstances. The court, therefore, correctly decided that the plaintiff must show more than the return in order to prove there was any neglect of duty.

Judgment affirmed.