Cheves v. Adams

32 S.C.L. 471

• Court: Court of Appeals of South Carolina
• Decided: May 15, 1847
• Status: Published

Opinion

Wakdlaw J.

delivered the opinion of the Court.

An act for regulating fees, passed February, 1791, (4 Stat., 156) provides amongst other fees for sheriffs: “For every return of a writ, where the goods or persons are not to be found, two shillings,’’ (about forty-three cents.”) An act of the same session (7 Stat., 264, sec. 10,) requires sheriffs to make return on oath of executions lodged with them; and a subsequent Act of 1799 (7 Stat.., 296.) imposes a penalty in addition to liability for damages, upon a sheriff who neglects to return an execution. An Act of 1827 (6 Slat., 334,) regulating fees, amongst sheriff’s fees, has this item nearly copied from the Act of 1791: “returning a writ where goods or persons are not found, fifty cents.” Another Act of 1827, (6 Stat., 329,) which went into operation in February, 1828, intended to prevent the frequent removal of executions, requires a return to be made at every term during the active energy of an execution, which has not been withdrawn from the sheriff, or returned fully executed; the writ itself, if not before withdrawn or returned fully executed, to be returned at the Term when its active energy eea-sos; at all previous terms a separate return in writing to be made, but the writ itself to be retained by the sheriff. An Act of 1839, (4 Stat., 4,) providing a new fee bill, gives to the sheriff, “for search for person or goods not found, and return on the execution of non est inventus, or nulla bona, fifty cents;” and in another clause, to remove all doubts concerning the separate returns required by the Act of 1827, gives “on each case returned in schedule, according to the Act of 1827, fifty cents.” It could not be supposed that under this Act the sheriff was entitled to both of these charges, for what is called a schedule return. If he searched and returned the writ itself, he only got fifty cents, and that was more than the Act of 1791 had given him. For a search and separate return, he deserved no more, and it seems too plain for dispute that the Act gave him no more,, The Act of 1840, (11 Stat., 104.) providing another table of fees, in reference to this subject, simply reduced the fee for a schedule return—thus, “search for persons or goods not found and returned on the execution of non est inventus, or nulla bona, fifty cents.” “On each case returned in schedule, according to the Act of 1827, twenty-five cents.’’ It is plain then that the sheriff is entitled to only twenty-five cents for each schedule return, and to fifty cents for the final return of non est inventus, or nulla bona, when the writ itself is returned. This compensation taking the average of cases is ample. Indeed, through carelessness of plaintiffs and their attorneys, in suffering executions to remain in the sheriff’s office after the hopeless insolvency of the defendants has been ascertained, the fifty cents, which, upon every such execution, the sheriff annually becomes entitled to charge against the plaintiff tor formal returns of nidia bona, non est inventus, wait orders, or the like, swell very much the expenses of unprofitable suits. The motion is dismissed.