Boynton v. Houston

By the Court. —

Lumpkin, J.

delivering the opinion.

Has the Court, in addition to its power of compelling the Sheriff by rule, to pay over money on a ft. fa. which he has collected or failed to collect, the right under the law to impose a fine on that officer for his disobedience to the process of the Court?

That this power belonged to the Courts at common law, there can be no doubt.

“Sheriffs” says Mr. Tidd, “may also, to some purposes be-considered as officers of the Courts; and it is their duty to have deputies to receive and return process; which deputies are required to give their personal attendance in Westminster Hall in Term time; and for the prevention and remedy of delays and abuses in.Sheriffs, under-Sheriffs, Bailiffs of liberties and their deputies, and other Bailiffs or Sheriffs, &c. in the execution of process and writs; it is a rule, that if any such officer shall wilfully delay the execution,or return of any process or execution, or shall take or require any undue fees for the same, or shall give notice to the defendant thereby to frustrate the execution of any process, or having levied money shall detain it in his hands after the return of the writ, besides the ordinary course of amercements, the contempt or misdemeanor appearing, an attachment, information, commitment or fine shall be as the case requirelh,” &c. Tidd Pr. 59.

The same power is given by the 52d section of the Judiciary Act of 1799; "whenever the Sheriff of any county within this State shall fail to make proper returns of all writs, executions, and other process, put into his hands, or shall fail or neglect to pay up all moneys received on such executions, on his being required by the Court so to do, he shall he liable to an action as for contempt, and maybe fined, imprisoned or removed from office in the manner prescribed by the Constitution.” Cobb 577.

And so far from this power being taken away, it is expressly re-affirmed by the Penal Code. " The power of the several Courts of Law and Equity in this State, to issue attachments and inflict summary punishment, for contempt of Court, shall not extend to any cases except the misbehavior of any person or persons in the presence of the said Courts, or so near thereto as to obstruct the admininistration of justice; the misbehavior of any of the officers of said Courts in their official transactions; and their disobedience, or resistance bjr any officer of said Courts, party, juror, witness, or any other person or persons, to any lawful writ, process, order, rule, decree or command of the said Courts.” Cobb, 843.

Can there be a doubt as to the power of the Courts to impose a fine? It goes to the public and not to the party. Hence it is, perhaps, that the exercise of this authority is so seldom invoked.

Judgment affirmed.