Hathaway v. Freeman, 29 N.C. 109, 7 Ired. 109 (1846)

Dec. 1846 · Supreme Court of North Carolina

29 N.C. 109, 7 Ired. 109

BURTON W. HATHAWAY vs. JOHN FREEMAN.

A Sheriff is bound to mark on process delivered to him the true day on ■which it came to his hands — otherwise he will forfeit the penalty of $100 imposed by an Act of Assembly, Rev. Stat. ch. 31, sec. 43.

Appeal from the Superior Court of Law of Chowan County, at the Fall Term, 1846, his Honor Judge Pearson, presiding.

This is an action of debt for the penalty of $100. under the act of 1777, Rev. St. ch. 31, see. 43, against a Sheriff for not marking, on a writ of capias ad respondendum, the day on which he received it. It was proved on the trial that the. writ was delivered to the defendant in his County on the 23rd day of March, 1843; and that he failed to mark -it on the writ, but stated thereon, that it came to hand the 3rd of April, 1843.

Upon these facts, the counsel for the defendant insisted that, as the defendant had marked on the writ a day. as that on which it was delivered to him, he had not incurred the penalty, although that was not the true day.

Bút the Court refused so to instruct the jury, and instructed them, that the plaintiff was entitled to recover ; and from a verdict and judgment for the plaintiff the defendant appealed.

Heath, for the plaintiff.

A. Moore, for the defendant.

Ruffin, C. J.

The case is within both the words and policy of the Act of 1777, and the judgment is clearly right. The only authority cited for the defendant is a ease from New York, Spafford v. Hood, 6 Cowen 478 ; .and that has no application to this question. The Court held in that case, that, upon the whole scope of the statute on which the action was founded, it was directed against persons chosen to certain onerous offices, who refused to serve in them, and not against particular defaults of one in office; and that was the ground of the decision. It would be in point, if this action had been brought on another statute of the same year, 1777, ah. 118, sec. 2, for refusing to accept and execute the office of Sheriff; for he,[who undertakes the office, does not, in the sense of the latter act, refuse to execute it by neglecting to perform a particular official duty. But the Act, on which the present proceeding is founded, is directed to a specific default of a person in office. The policy is obvious. It is to compel the Sheriff to furnish, under his own hand, ' upon the process, proof, that he received it in due time to enable him, and make it his duty, to execute it; and thereby induce that diligence which will prevent him from incurring an amerciament or action for a false return. But it is needless to look thus far ; for, as has been already remarked, the case is within the letter of the Act. It makes it the duty of a Sheriff to “mark on each process the day on which he shall have received it •” and it enacts,, that “ for neglecting so to do he shall forfeit $100, to be recovered by any person who. shall sue for the same.’5" Here, the defendant states on the writ, that it came to-hand on. the 3rd of Apriland that was not the day of its-delivery,, hut another; and marking the latter day was not more a compliance with the act than marking no day at all.

Pee Cuiuam. Judgment affirmed..