Halcombe v. . Rowland

Nash, J. There is nothing in the objection. The proceedings are instituted under the 61st section of the Revised Statutes. It is provided “ that any sheriff and coroner, who shall fail duly to execute and return all process to him directed, shall be subject to a penalty of $100 for each neglect, to be paid to the party aggrieved, by order of the Court, upon motion and proof that the process was delirerd to him twenty days before the sitting of the Court, to which it was returnable, unless the sheriff or coroner can show sufficient cause to the Court for his failure, .at the Court next succeeding such order." The act does not require that the judgment for the penalty, shall be rendered at the term to which the writ is returnable, nor can any good reason be assigned, why it should. The judgment is a conditional one, to be enforced only on the failure of the officer, at the term succeeding, to show a sufficient reason for his delinquency. Being granted on motion without personal service of any notice of the intention to make it, it is final to no purpose, except, perhaps, that of the failure to return, but leaves, by the express provision of the Act, to the officer the privilege of showing any “ sufficient cause for his failure,” provided he applies to be heard at the proper time, to-wit, the term succeeding the making of the order for the amercement, and that is the object of the sci. fa. Its language is, “ then and there to shew cause, if any he has, why *242 the said plaintiff, William Iialcombe, shall not have execution thereof, &e.” Upon the return of the sci. fa. a full defence is open to the sheriff; he may show that the writ never came to his hands, or that he did not receive it until after the return day, or that by some inevitable accident he was prevented from making his return, or in the language of the Act, any sufficient reason. If the sheriff be actually present in Court, when the motion to amerce is made, the Court would no doubt then hear his excuse, but his defence is not, fortunately for him, (in this particular,) confined to that time. The Act not only gives to the party injured the sum of $100 for each failure, but likewise subjects the delinquent officer to an indictment. With equal propriety it might be argued that the prosecution must be commenced at the return term of the writ. We see no. reason to disturb the judgment. PER CuiUAM. Judgment affirmed.