#### E. G. MORROW vs. J. B. ALLISON.

Where a scieri facias has been sued out upon a judgment, and, while it is in the sheriff’s hands, the parties agreed that the collection of the money should be suspended, so as to enable them to make a full settlement, yet the sheriff is not thereby excused from returning the process, but is liable to an amercement, if he fails to do so.

Appeal from the Superior Court of Law of Haywood County, at the Spring Term 1S50, His Honor Judge Caldwell, presiding.

This is a scieri facias on an amercement nisi of $100, for not making return of a writ of scieri facias, sued out upon a judgment recovered by the plaintiff against one Smith and one Rhinehardt, and delivered to the defendant, then the sheriff of Haywood. The defendant pleaded mil tiel record of the order msi; which was adjudged against him. He also pleaded specially, that the plaintiff directed the defendant not to return the said writ. — ■ On the trial, evidence was given on the part of the defendant, that, while the sheriff had the writ in his hands and before the day for the return thereof, an agreement was entered into, between the plaintiff and the defendant in the execution, to suspend the collection of the money men i tioned in the writ, with a view to a settlement between them in relation to it and other dealings between them. The Court directed the jury, that, if the parties made such agreement to suspend the collection before the return day of the execution, the defendant was not liable to be amerced, at the instance of the plaintiff, for not returning the execution. The jury found for the defendant and he had judgment, and the plaintiff appealed.

*218 J. Baxter, for the plaintiff.

N. W. Woodfm, Henry and G. W. Baxter, for the defendant.

Ruffin, C. J.

If this were a rule for an attachment, ort which the Court could hear affidavits to purge the contempt, probably a case might be made for discharging the officer. But it is not a proceeding of that sortand, on the contrary, it is for a penalty, expressly given by statute, to the party grieved, against a sheriff, who neglects to make due return of process, delivered to him twenty days before the Court, to which it is returnable. The plaintiff in the execution is, therefore, legally entitled to an amercement against the officer, who fails in that duty, unless he be discharged by the party from its performance. Though pleaded, there is here no discharge in point of fact. An agreement to suspend the collection of the debt, or to stay the execution, as it is commonly called, even if communicated to the sheriff, gives no authority to the officer not to return the writ. The return may be material to the creditor in several ways ; as to enable him the earlier or the more readily to sue out another writ, or to rebut the presumption of satisfaction, or the like.— Certainly, a direction not to enforce the immediate payment of the debt in the execution is not a direction, nor even an allowance, that the sheriff should not return the writ. The jury, therefore, was not sustained by the evidence and ought not to have found 'for the defendant, and the judgment must be reversed and a venire de novo awarded.

Per Curiam Judgment accordingly.