Opinion
(Spring Term, 1804.)
On a sci. fa. against a sheriff, issued on an amercement nisi, for not returning a writ to which the sheriff appears and pleads, the plaintiff is entitled to a trial at the return term of the sci. fa.
Sci. fa. against the defendant as sheriff of the county of New Hanover, on an amercement nisi, made at April Term, 1803, for not returning a writ directed to him against James Richards and others, returnable to April Term, 1803, This sci. fa. issued, returnable to (594) October Term, 1803, to show cause why the conditional judgment, on the amercement of April Term, should not be made absolute. At October Term, 1803, the sci. fa. was returned, "made known," and the defendant, by his attorney, appeared and pleaded, "That he, the said Bloodworth, was prevented by sickness from returning said writ," and moved the court for a general continuance, without showing any cause, which was overruled by the court, and a jury impaneled to try the issue on the plea, which, being found against the defendant, the court gave judgment for the plaintiff.
The question is whether, under the act of Assembly respecting scire facias on amercements against sheriffs, the defendant is entitled to a general continuance on pleading as a matter of course, without showing any cause therefor.
For every failure in a sheriff like the one now complainted of, the court, by their order, may direct £ ____________ to be paid to the party grieved, unless, says the act of Assembly, such sheriff can show sufficient cause to the court, at the next succeeding term after such order. It is contended for the defendant that if the sheriff, being called in by sci. fa., enters his plea thereto, that he has, as a matter of right, till the next court to procure testimony to support it. I cannot agree with that construction of the act; it expressly says he shall have till the succeeding court after the order is made to show cause. Act of 1777, ch. 8, sec. 5. If he was not to show cause, or make any defense at that court, the order would become absolute; that, and no other, is the court assigned him to make his defense. If he could not procure testimony, and was to make out a proper case for a continuance, the court would grant it. It is not like the case of a plea entered in a common suit; there time is expressly given till the next court by the act of Assembly, but that is not the case in the act that governs this question. He must either show cause at the first court or make out a proper case for a continuance till the next; but he cannot have that indulgence as a matter of course.
(595) MACAY, TAYLOR, and LOCKE, JJ., concurred in opinion with HALL, J., that the verdict was regularly taken and ought to stand.