Davis Lancaster , 5 N.C. 255 ( 1809 )

From Halifax. The act of 1777, ch. 8, sec. 5, under which the defendant has been finednisi, directs "that every sheriff, by himself or his lawful officer or deputy, shall execute all writs and other process to (256) him legally issued, etc., and make due return thereof, under the penalty of forfeiting £ 50, etc., where such process shall be delivered to him twenty days before the sitting of the court, to be paid to the party grieved, etc." This act, being penal in its operation, is to be construed strictly. Of what is the sheriff directed to make due return? "Of all writs and other process." If he fail to do this, he incurs the penalty. To say that a due return of the process means a transfer of the money into the proper office, as well as a return of the authority under which it was made, would be to give to the act a more liberal construction than we are authorized to give. This opinion is confirmed by the provisions contained in section 10 of the same act, which give a summary remedy against sheriffs who fail to pay into court money which they have made upon executions, where their receipt of the money is evidenced by their returns upon the executions.

It is said, however, that it is of little moment to the plaintiff what the return upon his execution may be, if the money is withheld from him. It is surely some consequence to him to know how his rights stand: whether the money be in the hands of the sheriff, against whom he may proceed to enforce payment, or still be in the hands of the defendant, against whom he may renew his execution. If, according to our construction of the act, there be a mischief unremedied, it is the business of the Legislature to provide a remedy: our province is to declare the law, not to give it. Our opinion, therefore, is that thescire facias has improperly issued, and ought to be set aside.

Cited: Cockerham v. Baker, 52 N.C. 289; Wyche v. Newsom, 87 N.C. 144.

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