#### FROST, TOWNSHEND AND MENDENHALL vs. JOHN A. ROWLAND.

A return of a sheriff to a fi. fa. that“ he had made a levy on personal property and taken a forth-coming bond, but had not sold it, that the obligors not deliver the property on the day, and that, after the day, it was too late to make a sale,” is not such a “ due return” of the process as will exempt the sheriff from amercement.

The act, allowing the sheriff to take a forth-coming bond, operates only between the sheriff and the debtor and his sureties. The creditor is left to all his rights and remedies against both the debtor and the sheriff.

Appeal from the Superior Court of Law of Robeson County, at the Spring Term, 1845, his Honor Judge Pearson presiding.

The defendant was the sheriff of Robeson county, and the plaintiff delivered to him, three months before the return day, a writ of fieri facias on a judgment, recovered by them in the Superior Court against one MacLean. The defendant returned the same, that he had levied it on certain property, therein mentioned, “ but that he had not sold it and made the money, because he had taken a forth-coming bond, and the property was not delivered at the day, and that, after that day, it was too late to make a sale.” On this return, the plaintiff moved for an amercement nisi of $ 100, which the court ordered ; and this is a scire facias to the defendant to shew cause.

The counsel for the defendant insisted, that his return was “ a due return,” inasmuch as he was authorised to take a forth-coming bond, and he was, therefore, in no default, and might return the truth of the case. But the court made the order absolute, and the defendant appealed.

Ño counsel for the plaintiffs.

Strange for the defendant,

submitted the following argument :

*3861st. The proceedings under the act, 31st. chap. Rev. St. sec. 61, is a penai proceeding; and for the very same thing in the very same section, the sheriff is declared liable to indictment ail¿ punishment criminally. But the 17th sec. ch. 46, Rev. Stat. authorizes the sheriff to take forth-coming bonds, if he permits the property to remain in possession of thejiefend-ant in execution. And was it ever heard of, thafan act of assembly should legalize a bond taken for the very act for which the person to whom it was payable was subject to indictment, and proceeding against for a penalty ? Surely not. But it is said, that the statute authorizing the forth-coming bond, goes on to declare that the sheriff should still be liable in all respects to the plaintiff’s claim. That this means civil liability only, to-wit, his action for the amount of the debt, &c. is evident: 1st. From the incongruity already mentioned of authorizing an act, and then holding the person criminally responsible for it. And, secondly, that the reservation never could have intended to apply to the amercement; for the act in which the reservation is found, was passed in 1807, and the act authorizing amercements, not until 1821. It is said, that the bond of indemnity is his reliance, and to that he must look for reeompence for all his losses, whether by amercement or otherwise. And .can this be so ? Will the law provide indemnity for a man for that which she punishes criminally for doing? In support of this position, some have supposed that the case of Denson v. Sledge, 2 Dev. 136, may be relied, but that case has nothing to do with the question farther than it contains an obiter dictum, intimating that the sheriff, notwithstanding the act authorizing him to take a forthcoming bond, remains subject to all his former civil liabilities, and that is not denied by us in this case.

2nd. Besides, what w,as the object of the act authorizing amercements ? The .causes for which a sheriff may be amerced, are declared in the act to be, neglecting truly to execute and return all process to him directed. Now, has he in this case neglected to return the process 7 . No ; he is amerced because of the nature of that return. Has he failed to exe-*387eute the process ? No; he executed as far as the law required him to execute it, and only stopped where the law authorized him to stop ; and having stopped there, when he would take the next step, he was prevented by circumstances over which he no longer had control from proceeding farther. He has then neither neglected to execute the process, nor to return it. And the only remaining question is, can he be amerced when he returns process* because of the insufficiency - of the return ? I admit that both the language of the act and decisions made under it$ render the sheriff liable for the insufficiency of the return, as for not making return at all; and when we come to enquire into the reason of the thing, it appears to me it will establish the sufficiency of the present return. The mischief before our statute of amercements was, that much collusion might exist between the sheriff and defendants in execution; and indeed, the sheriff had vast opportunities of wronging the plaintiff, without even the poor excuse of favoring the defendant in execution. For want of a return on the execution, the plaintiff was kept in the dark as to- the true condition of the his claim. He knew not whether to renew his execution by alias, by venditioni exponas, by capias ad satisfacien-dum, or how; or whether the sheriff had rendered himself liable ; or if liable, in what way. And if he proceeded against him in any way, there was great difficulty in bringing out the facts to shew his liability. The act, therefore, was passed to eompel the sheriff under the penalty of fine and indictment, to furnish to. the plaintiffs,’ at each time, information as to the condition of'his claim, and such evidence- as would be sufficient to charge himself, if he was in fact liable. All this the defendant has done, and in that complied with the letter and spirit of the act.

3rd. The act provides, unless he can shew sufficient cause for his failure, to the court next succeeding such order. This is a further explanation of the object of the act, and shews that the defendant should never have been amerced even here. Sufficient cause for what ? Why, either for not executing the-process, or not making, due return. The execution of the *388process is the gist of the matter. For that, he had shewn sufficient cause in his return that he had in fact executed it as far as he could ; and as far as he had not, furnished a sufficient excusej so far as criminal liability is concerned, in his having shewn to the defendant a lenity countenanced by act of assembly, and that the defendant had abused the trust reposed in him. As to the return, he had made it. It must be sufficient, for it was the only one he could make — it was the' only one consistent with the truth, and surely there can be no punishment where there is no mala jides, and here the mala jides would have been in making any other return than just the one he had made.

Ruffin, C. 3.

The judgment must be affirmed. It is not disputed that the return was no answer to the writ at common law. Therefore, the amercement was proper under the' acts of 1777, c. 118-, s. 5, and of 1821, c. 1110, standing by themselves. But it was contended, as the act of 1807, Rev.St. c. 45, s. 17, makes it lawful for a sheriff to leave property in the debtor’s possession and to take a forth-coming bond, that it follows he may return that matter as his excuse for not selling the property and bringing in the money. Even if that were true, this return would be radically defective, in not setting forth the bond as to the obligors, penalty, and the particular effects mentioned in it, and the day for their delivery :• so that it might be seen that a proper and effectual bond had been taken. But the whole position is, in the opinion of the' court, erroneous. The purpose of the act of 1807 was merely to declare such bonds valid, notwithstanding they are given as indemnities to the sheriff, for postponing the execution of his writ. The act operates between the sheriff and the debtor, and his sureties, and between them alone. The creditor is left to all his rights and remedies against both the debtor and the sheriff. The act has been always so understood ; and, indeed, the provision is express, “ that the said officers shall, nevertheless, remain liable as heretofore, in all respects, to the plaintiff’s claim.” The creditor has no con-*389©ern with the bond. He is neither bound, nor allowed to take an assignment of it. It is purely an indemnity to the sheriff; and, that it may be an effectual indemnity, both as to the amount and the period of the recovery on it, the act of 1822 gives a summary remedy, by motion, for all such damages as the officer may have sustained or be liable to sustain. If taking a forth-coming bond would exonerate the sheriff from the duty of selling, or authorize him to return that matter as an excuse, it is obvious, that the creditor would lose his remedy by an amercement, and, indeed, could never enforce a sale,since the sheriff might take and return such bonds in perpetuo,-as successive executions should be delivered to him.

But it was further argued, that, as the act, Rev. St. c. 31, s. 61, makes the sheriff subject to indictment as well as to amercement, for not duly executing and returning process, the amercement ought not to be imposed but for some criminal act; and, therefore, not for a thing which the law author-ised the sheriff to do. To this argument, there are several answers. In the first place, the amercement was first given by the act of 1777, of £50 to be paid to the party grieved by' order of the court on motion. That act neither provided for an indictment, nor even for a penalty to be recovered by any person suing for it to his own use, in whole or in part. If did not treat the act as an offence against the public, for which there should be a proceeding criminaliter, properly speakings But the provision was made for the better administration of the law in actions between citizens, and in advancement of the justice due to the suitor, by giving to the suitor such sum as, it was supposed, would be, in general, a compensation for the inconvenience and loss arising from the delay in the discharge of the sheriff’s duty. It was really, therefore, remedial in its character, and not to be interpreted with any such strictness, as is proper in respect to penal statutes, in the ordinary sense of those terms.

Then came the act of 1821, which was rendered necessary by several considerations. From the depreciation of the currency of 1777, the £50 was found inadequate to compensate1 *390the party, or to excuse diligence by'’ the officers. Indeed, it was known that debtors often prevailed on sheriffs to omit doing execution, by paying down to them the trifling fine. rpQ prevent such scandal to the law and such injury to the suitor, the Legislature enlarged the amercement to the party grieved to $ 100. But, as even that might in some cases be advanced by the debtor, and it was intended to enforce effectually the execution of process in all cases, it was added in'that act, “ that said sheriff shall for every such neglect be further subject to indictment.” Now, whether the defendant would, under the circumstances of this case, be liable on indictment, need not be considered. It might probably turn on the good faith of his acts and his intentions, as found by a jury. But, admitting that he might not be, it does not follow, that he ought not to be amerced at the instance and for the benefit of the suitor. If the provisions for amercement and indictment were parts of one and the same original statute, they would not necessarily be co-extensive in their application, as they were enacted diverso intuitu. But they are not so to be regarded ;• for the first is but re-enacted from a former statute, and its remedial character in the first is not lost by its conjunction with a new provision in the latter act, which makes the defaulting officer further subject to indictment. The Legislature did not mean, by creating additional guards against official defaults, to diminish the redress to the suitor for his private loss, to which he was before entitled. But this is placed beyond all doubt by the Rev. St. ch. 109, s. 18; for although the Rev. St. ch. 31, s. 61, re-enacts the act of 1821 simply, and gives both the amercement and the indictment; yet in the 109th chapter, every thing about an indictment is omitted, and the acts of 1777 and 1821, are combined and reenacted in respect of the amercement alone : which shews, that the amercement is merely a measure of redress for the suitor, and, therefore, that he is entitled to it in every case in which the officer fails to make “due return” of a writ.

Per Curiam, Judgment affirmed.