Opinion
(December Term, 1846.)
A sheriff is bound to mark on process delivered to him the true day on which it came to his hands, otherwise he will forfeit the penalty of $100 imposed by Rev. Stat., ch. 31, sec. 43.
APPEAL from CHOWAN, Fall Term, 1846; Pearson, J.
Debt for the penalty of $100 under the act of 1777, Rev. Stat., ch. 31, sec. 43, against a sheriff for not marking on a writ of capias ad respondendum the day on which he received it. It was (110) proved on the trial that the writ was delivered to the defendant in his county on 23 March, 1843, and that he failed to mark it on the writ, but stated thereon that it came to hand 3 April, 1843.
Upon these facts the counsel for the defendant insisted that as the defendant had marked on the writ a day as that on which it was delivered to him, he had not incurred the penalty, although that was not the true day.
But the court refused so to instruct the jury, and instructed them that the plaintiff was entitled to recover; and from a verdict and judgment for the plaintiff, the defendant appealed.
Heath for plaintiff.
A Moore for defendant.
The case is within both the words and policy of the act of 1777, and the judgment is clearly right. The only authority cited for the defendant is a case from New York, Spafford v. Hood, 6 Cowen, 478; and that has no application to this question. The Court held in that case that, upon the whole scope of the statute upon which the action was founded, it was directed against persons chosen to certain onerous offices who refused to serve in them, and not against particular defaults of one in office; and that was the ground of the decision. It would be in point if this action had been brought on another statute of the same year, 1777, ch. 118, sec. 2, for refusing to accept and execute the office of sheriff; for he who undertakes the office does not, in the sense of the latter act, refuse to execute it by neglecting to perform a particular official duty. But the act on which the present proceeding is founded is directed to a specific default of a person in office. The policy is obvious. It is to compel the sheriff to furnish, under his own hand, upon the process proof that he received it in due time to enable him, and (111) make it his duty, to execute it, and thereby induce that diligence which will prevent him from incurring an amusement or action for a false return. But it is needless to look thus far; for, as has been already remarked, the case is within the letter of the act. It makes it the duty of a sheriff to "mark on each process the day on which he shall have received it," and it enacts that "for neglecting so to do he shall forfeit $100, to be recovered by any person who shall sue for the same." Here the defendant states on the writ that it came to hand on 3 April, and that was not the day of its delivery, but another; and marking the latter day was not more a compliance with the act than marking no day at all.
PER CURIAM. No error.
Cited: Duncan v. Philpot, 64 N.C. 480; Wyche v. Newsom, 87 N.C. 145; Swain v. Phelps, 125 N.C. 44.