
    APRIL TERM, 1772.
    Upton Scott against Watts, Sheriff of St. Mary’s County.
    IN this case, the defendant being sheriff of St. Mary’s County, had taken Thomas Key on a writ returnable to September term, 1771, and not having brought in the body, was amerced debt and costs nisi the second day of this Court. After September term, and before April, Key died j and
    
      T. Stone, on behalf of the defendant,
    moved to stay any proceedings on the amerciament.
    He argued, that the plaintiff’s interest commenced on the amerciament when final. That amerciaments were laid by the Court for a contempt of their process, and the Court would not let the defendant suffer when by the act of God it was impossible to have the body here at the day. That the party could not be brought into Court on the return day of the writ because he was ill, which fact the defendant %vas ready to prove by affidavit. He supposed he had been brought in, committed, and had died, no action would lie against the sheriff. Or that a bail-bond had been given, and the plaintiff had taken an assignment of it, and had put the bond in suit; in that case, if Key had died before judgment, the Court would have stayed the proceedings against the bail. 1 Barnes, 48. 63. And contended that the sheriff ought not to be in a worse situation.
    
      Jenings, contra.
    The amerciament is laid for the former contempt in not having the party here at the first term, and not this. The act of Assembly gives the plaintiff an interest in the amerciaments. If the person named in the writ be sick, the sheriff should have returned him 
      languidum. The sheriff is a mere ministerial officer, whom, the plaintiff is obliged to trust, and he ought not to be allowed to exercise his own discretion. If the sheriff had brought up the body, he might have given bond and security, or might have paid the money. The cases in Barnes are to be understood to apply where the party taken dies before there is any possibility of a judgment; but here he might have confessed judgment at the first Court.
   The Court unanimously ordered the amerciament to be Stayed, saying they would give the sheriff all the indulgence in their power, and that the amerciament being a cpntempt of their process, was within their power.  