
    CALDWELL, vs. HOLLY,
    
      On an appeal from, a judgment of the circuit court of Bath.
    
    8 April, 1819.
    
      JBibb for appellant.
    The act of Jan 1811, (session acts of 1810, page 145) is penal, and must be construed strictly: 4th Ba. Ab. title ‘statute,’ let-terl,9ih rule.
    Motions made under that act must be made against the principal,and not the deputy sheriff..
   Jddge Owslev

delivered the opinion of the court.

against This is an appeal from a judgment rendered Caldwell as late deputy sheriff of Bath county, upon a motion, for his failure in not returning an execution which issued in favor of Holly.

The molion was made, and judgment rendered, under the act of January, 1811, conceniing«heriffs.

As that act, for a failure to return an execution within thirty days from the return day, not only subjects the officer to the payment of the principal, interest and cost expended therein, but moreover makes him liable to thirty per centum damages upon the amount thereof; it is certainly of a highly penal character, and, consequently, in deciding upon its application to cases attempted to be brought withip its operation, no liberality of construction ought to be indulged.

Observing a strict construction, therefore, and deciding according to the literal import of the act, we can have but little hesitation, in affirming, that the motion against the deputv sheriff cannot be sustained. For according to the expressions of the act, its penalties are imposed upon the sheriff, or officer, only, to whom lire execution is directed, and as the direction is always to the principal, and not to the deputy, it is against the principal, and not the deputy, that the motion for a recovery of the penalty should be made.

It is true, that after making the sheriff or other officer, to whom the execution is directed, liable for a failure to return, the act proceeds to direct the recovery to be had, by-motion, in like manner, and under limitations and provisos, prescribed and provided in cases of failure to pay over monies collected upon executions; but as it is to recover that for which a liability is previously imposed, the motion is given, it is plain that, neither the manner, the limitations, nor provisos under which it is directed to proceed, can have been intended by the makers of the act, to authorise amotion against those who should not be otherwise liable. The judgment, therefore, as it is against the deputy, must be reversed with cost, the cause remanded to the court below, and the motion dismissed with cost,  