#### THOMAS McLIN vs. JOHN H. HARDIE.

June 1843

A sheriff, to whom a writ has been delivered, hut who goes out of office fore the return clay of the writ, has no power to make a return on it, and therefore is not subject to an amercement for not doing so.

This case originated in this Court. An execution having issued from June Term, 1840, at the instance of Thomas McLin v Robert McNamara, Ad’r. &c. on a decree in a. suit in Equity, (see 1 Ired. Eq. Rep. 75,) and no return being made at December Term, 1840, on motion an order was made, as recited in the following scire facias, and the scire facias directed to be issued, as follows :

THE STATE OF NORTH CAROLINA,

To the Sheriff of Rowan County, Greeting :

Whereas, at the present term of the Supreme Court, begun and held in the City of Raleigh, on the last Monday in December, A. D. 1840, it has been made to appear to the court that John H. Hardie, late sheriff of the county of Rowan, has failed to make return of a writ of fieri facias issued from the office of the Clerk of said Court, bearing date the 2d Monday in June, A. D. 1840, directed to the Sheriff of Rowan county, and returnable to the present term, at the instance of Thomas McLin against Robert McNamara, administrator of Stephen L. Ferrand ; and whereas, on motion, it was considered by the court that the said John H. Hardie be amerced in the sum of $ 100 nisi. These are therefore to command yon, that you make known to the said John H. Hardie, that he appear befoie the Judges of the said court, at the City ot Raleigh, on the 2d Monday of *408June next, then and there to shew cause, if any he has, why the aforesaid judgment should not be made absolute. Herein fail not. &c. Tested the last Monday of December, 1840, . ' . , J and signed by the Clerk.

On the return of the scire facias, the defendant appeared and entered the following pleas :

John Hardie Adsm. Thomas McLin.

And the said John, by David F. Caldwell and John H. Bryan, his attorneys, comes and defends the wrong and injury, when, &c. and says that there is not any record of the said supposed judgment in the said scire facias mentioned, remaining in the said court here in manner and form as the said Thomas hath above in his said sciref acias alleged, and this he the said John is ready to verefy, whereupon he prays judgment' if the said Thomas ought to have or maintain his aforesaid action thereof against him the said John.

And for a further plea in this behalf, the said John, by leave of the court, (fee. and according to the statute, (fee. says, that the said Thomas ought not to have or maintain his aforesaid action thereof against him, because he says, that neither at the time of the issue of the said execution or writ of fieri facias, in the said scire facias mentioned, nor at the return day thereof, nor of the delivery thereof to him the said John, nor at any time between the said issue and return day was the said John sheriff of Rowan county aforesaid — and this the said John is ready to verify. Wherefore, he prays judgment if the said Thomas ought to have or maintain his aforesaid action thereof against him, (fee.

To which pleas the plaintiff put in the following replication :

And the said Thomas, as to the said plea of the said John by him first above pleaded, saith, that he the said Thomas, by reason of any thing by the said John in that plea alleged, ought not to be barred from having and maintaining his said action thereof against him, because he says that there is such a record of the said judgment remaining in the said court here, as he the said Thomas hath above in his said writ of *409 scire facias alleged — and this he the said Thomas is ready to verify by the said record when, where and in such manner as the court here shall award and direct; and he prays that the said record may be inspected and seen by the court here. And because the said court are not yet advised what judgment to give of and upon the premises, a day is therefore given to the parties aforesaid until the last Monday of December now next ensuing to have the judgment of the said court thereupon, for that the said court now here are not yet advised thereof, &c.

And the said Thomas, as to the plea of the said John by him secondly above pleaded, saith the said Thomas, by reason of any thing by the said John in that plea alleged, ought not to be barred from having and maintaining his aforesaid action thereof against him, because, he says, that at the Court of Pleas and Quarter Sessions, begun and held for the said county of Rowan, at the court house in Salisbury, on the third Monday of August, in the year of our Lord 1838, a majority of the acting justices of the same county being' then and there present, the said John was, by the said court, declared to have been duly elected sheriff of the said county of Rowan for the term of two years thence next ensuing, and to be complete and ended, and the said John thereupon presently appeared before the said justices in the said court then and there held, and accepted the said office, and then and there before the said justices in the said court, entered into the bonds and took the oaths by law in that behalf required for his qualification, and thereupon was then and there admitted and received by the said justices in the said court as such sheriff for and during the term aforesaid, as by the record of the said proceedings now remaining in the said court of Rowan, it doth and may more fully appear. — ■ And the said Thomas in fact says that he the said John from thence afterwards until the end of the said two years continually held, used and exercised his said office of sheriff, to wit, at Rowan aforesaid. And the said Thomas further in fact says that while the said John so held, used and exercised his said office of sheriff, and more than twenty days be*410fore the end of his said term of and in his said office, (o wit, on the first day of July, in the year 1840, at Rowan aforesaid, the said writ oí fieri facias was duly delivered to the said John as such sheriff, to be executed. And this the said Thomas is ready to verify. Wherefore he prays judgment and the said sum of $> 100 to be awarded to him, &c.

To this replication there was a general demurrer, and the plaintiff joined in demurrer.

The cause stood over till this Term, (June 1843} when it was argued by counsel.

W. H. Hayioood and Badger for the plaintiff.

I). F. Caldwell and J. II. Bryan for the defendant.

Daniel, J.

It does not appear that the sheriff had made any levy under the execution before his office of sheriff expired. If he had made a levy, it would have been his duty to have proceeded and completed the sale, notwithstanding a new sheriff had been appointed before the return day of the execution. But as nothing had been done on the execution, when the defendant’s office expired in August, 1840, he thereafter had no power to act on it. For all writs of execution, not executed or begun to be executed by the old sheriff before his office expires, it is the duty of the new sheriff to execute. Fonseck v Magney, 6 Taunt. 231.— Watson on Sheriffs, 21. The question now is not, whether the defendant handed over this execution to the new sheriff, or whether it was his duty to have done so, but whether he is subject to a penalty for failing to return the writ into this court on the return day, to wit, at December Term, 1840, four months after his office had expired. We think that he is not subject to the forfeiture. The Legislature did not contemplate a ease like this when it passed the act. The defendant could not in law have made the return on the execution, at the time it was returnable. Dyer 41, 355 in nota Dalt. 18. The demurrer must therefore be sustained, *411and judgment.rendered for the defendant to go without day and recover his costs.

Per Curiam. Judgment for .the defendant.