#### C. E. LUTE and others v. JOHN REILLY, Sheriff.

When the owner of land does not petition for a homestead, it is the duty of the Sheriff, or other officer who has an execution against him, to' have it laid off under the Act of 1868-9, ch. 137, at the expense of the creditor, and if he refuse to pay or tender the fees of the officer, he will, by virtue of the Code of Civil Procedure, Sec. 555, be justified in. refusing to execute the process.

This was a motion made at the Eall Term, 1869, of Cumberland Superior Court, to amerce the sheriff of that county for failing to execute process, and for making an insufficient return to a writ oifi. fa. against one John W. Matthews. It was continued until the Spring Term, 1870, when coming on to be heard before his Honor Buxton, J., it appeared that at the time when the process was placed in the hands of the sheriff, the plaintiffs paid him sixty cents, and he afterward made the following return : “ Defendant does not petition for homestead, and the plaintiffs refuse to pay homestead fees. No action, the necessary fees not paid. (Signed) John Reilly, Sheriff.”

His Honor being of opinion that the sheriff was not bound to execute the process, unless his fees were paid for laying off the homestead, and that his return on the process was not insufficient, refused the motion to amerce. Erom this order the plaintiff appealed.

Hinsdale, for plaintiffs.

J. G. McRae, for defendant.

*21Settle, J.

This was a motion to amerce the sheriff for failing to execute process, and for making an insufficient return.

The case states that a fi. fa. for costs,, duly issued and came into the sheriff’s hands in full time. At the time the process was placed in the sheriff’s hands, a fee of sixty cents was paid him by the plaintiffs.

The return of the sheriff is as follows, to-wit: “ Defendant does not petition for homestead, and the plaintiffs refuse to pay homestead fees. No action, the necessary fees not paid.” An officer cannot be required to execute process unless his fees be paid or tendered by the person in whose interest the service is to be rendered. O. O. P., Sec. 555.

If the homestead is laid off at the instance of the owner, he is liable for the sheriff’s costs; if not so claimed by the •owner, the fees must be taxed in the bill of costs. Acts 1868-’9, ch. 137, sec. 16.

Before levying upon any homestead, owned and occupied, the sheriff or other officer charged with such levy, shall sum.mon three appraisers, whose duty requires them to value and lay off the homestead exemption of the owner; and the levy can only be made upon the excess of homestead not so laid off.

If the homestead is laid off at the instance of the creditor, to ascertain if there is an excess, out of which his debt may be made, the services are rendered in his interest, within the meaning of O. O. P., Sec. 555.

And this seems reasonable, for since the law guards the .homestead with such jealous care that it will not permit the debt itself to be collected out of it, surely it was not the purpose to allow the costs, which are but a mere incident, to exhaust the homestead.

If it be said that it is a hard measure to make the creditor pay the costs in such cases, the reply is, ita lex soripta est.

The judgment of the Superior Court is affirmed.

Per Curiam. ' Judgment affirmed.