29 N.C. 109 | N.C. | 1846
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 case 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 upon 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, ch. 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 *84 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 (111) make it his duty, to execute it, and thereby induce that diligence which will prevent him from incurring an amusement 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." Here the defendant states on the writ that it came to hand on 3 April, and that was not the day of its delivery, but another; and marking the latter day was not more a compliance with the act than marking no day at all.
PER CURIAM. No error.
Cited: Duncan v. Philpot,
