Person v. . Newsom

The question presented is as to the liability of the defendant to the amercement for not making "due return" of the process under the statute, (Bat. Rev., ch. 106, sec. 15), either because not in time or insufficient in form. The return is in substance that the debt and interest had become the property of the defendant, and he had a right to forbear the enforcement of the mandate. If such be the fact, and it must be so assumed, upon the motion for an amercement, the debt being under the control of the defendant, as owner, its collection may be suspended without the incurring of liability to the plaintiff as an "aggrieved party." It may be an untrue return subjecting the officer to the heavier penalty imposed for making a false return, for that, the payment extinguished, but did not transfer the debt; still the return is sufficient in law to excuse the defendant from further proceeding under the process, and protects him from this penalty now sought to be enforced. Waugh v. Brittain, 49 N.C. 470. The next inquiry is whether the return is in due time: The case ofLedbetter v. Arledge, 53 N.C. 475, cited in the argument for the appellant, is directly in point, and decisive. There, the plaintiff was *Page 124 allowed to enter up judgment nisi against the defaulting officer on Thursday of the term, and immediately thereupon the defendant, with leave of the court, made his return, and moved to vacate the (144) judgment. Delivering the opinion of the court, MANLY, J., says: "The sheriff is allowed all the days of the term to return a fierifacias, unless he be ruled, upon motion and cause shown, to return it to some intermediate day. When the motion is made, like other acts of the court, it stands by relation as if done on the first day." The statute now in force expressly directs that "all executions on judgments in civil actions," shall be returnable to the term of the court next after that from which they bear teste," not specifying any day thereof. Bat. Rev., ch. 18, sec. 7. The same inference would seem to be authorized by the decision that the amercement can be imposed upon application at a subsequent term. Halcombev. Rowland, 30 N.C. 240. There is error, and the judgment below must be reversed, and judgment entered here for the defendant. Error. Reversed. Cited: Turner v. Page, 111 N.C. 292; S. v. Moore, 230 N.C. 649. In WYCHE v. NEWSOM, from Northhampton: There was judgment for the defendant and the plaintiff appealed.