The ordinance of the Convention “ Respecting the jurisdiction of the Courts,” ratified 14th March, 1868, sec. 7-9, made it the duty of the Sheriff to return the process as he did in this case; provided the debt upon which the judgment was obtained, was contracted prior to 1st May, 1865. See also sec. 16 of the ordinance. The debt in this case was not contracted prior to 1st May, 1865 ; but the Sheriff was not informed of that fact.
The question is, whether that was an excuse for the sheriff?'
We think it was.
The ordinance was general, that the Sheriff “ shall return all fi. fds.” &c. And those founded on debts contracted since 1st May, 1865, are exceptions. And it was the duty of the plaintiff to inform the Sheriff that his fi.fa. was within the exception.
An amercement is a ¡penalty, and is for a fixed sum without regard to the little or much of the plaintiff’s damage. The penalty is not to be inflicted upon the" Sheriff for the negligence of the plaintiff, in not giving him the necessary infor*486mation ; especially is this so, when the execution as in this case issued from a court outside of the Sheriff’s county, so that he ■could not by reasonable diligence ascertain the time when the ■debt was contracted.
A constable leviedjupon and sold a gun of the defendant in an execution, when the gun was exempt as “ arms for muster.” It was held, that the*.officer was not liable even in an action on his bond, much less would he be to the penalty of an amercement, although he knew that arms for muster were exempt; because he did not know, and was not presumed to know, that this particular gun was used for that purpose, and the owner of the gun did not inform him of the fact. Henson v. Edwards, 10 Ire. 43.
There is error. Judgment reversed.
Note.—Justice Boyden, being of counsel, did not sit in this ease.