M'Cleland v. Hobbs , 3 Ky. 2 ( 1805 )

OprNioN OF the Court. — From an examination of the law which subjects sheriffs to a fine for not returning executions on or before the return day (^a), it is conceived that it is in the discretion of the court to fine or not fine tlte sheriff; and this discretion is limited only as to the amount of the fine, which shall not exceed five pet* centum per month. It is easy to conceive cases where a sheriff may fail to return an execution on or before the return day — which failure may have arisen from accident, Or from the act of the plaintiff; in either of which he would be excusable. Therefore, every case must depend on the circumstances attending it, and the court: must exercise its discretion accordingly ; which, if abused, the circumstances can be spread upon the record by bill of exceptions, which will enable a superior court to judge of them, and correct the abuse. In this case the discretion, does not appear to have been ab.used, and therefore the judgment must be affirmed.

a (a) Arts of 1796- 7, p.- 6i, 1 Brad.272.