Anon.

23 Wend. 101

Opinion

By the Court.

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.