Douglas v. . Auld

4 N.C. 112

• Court: Supreme Court of North Carolina
• Decided: January 5, 1814
• Status: Published

Opinion

By the act of Assembly passed in the second session of 1777, ch. 8, sec. 5, the several sheriffs are required to execute all process directed to them, and to make "due return" thereof to the courts from whence such process issued, under the penalty of £ 50 for each failure.

The true meaning of the words "due return" we understand to be that the sheriff shall, by his return, set forth what act he hath done in compliance with the process directed to him — that is, in the case of an execution against goods, etc., that he shall return that the same is satisfied, or that he has levied on the estate of the defendant, and could not sell for the want of purchasers; or that there are no goods, etc., belonging to the defendant within his bailiwick.

The simply returning the execution on the return day named on it, without having made a legal effort to obtain satisfaction, is not a "due return" within the true meaning of the act of Assembly. The return, in this case, "Not satisfied," is substantially the same as if there was no return whatever on the execution; it is perfectly evasive of the law, and if permitted to pass unnoticed and unpunished would do a serious injury to the creditor, and bring the authority of the law into contempt, for if such return should form a sufficient excuse for a sheriff once, there is no reason why he might not repeat it as often as he pleased.

Amercement made absolute. Judgment for the plaintiff.

NOTE. — But if the sheriff returns an execution in due time, endorsed "Satisfied," but does not return the money with it, nor pay it to the plaintiff or his attorney, he cannot be fined under this act. Davis v.Lancaster, 5 N.C. 255.

(114)