
    Mark Solomon v. Wm. G. Richardson, Sheriff.
    
      Tried before Mr. Justice Gantt, at Sumter — Fall Term, 1833.
    of a» execute process reasonably1 can*™ft withtho ána’ínediühisofi Sir days Sore was convened by a pronciamCation So™ privad from riiereforo^mt ar8 rested; this was gleet of duty, for
    had issued a bail writ against John W. Mayrant, and lodged it with the defendant, as sheriff of Sumter. The sheriff served Mayrant personally, c0Py> without taking bail. The plaintiff ob-a judgment, and issued execution against May-who, in the mean time, left the State. This action is brought to recover the amount of that judgment’ debt and costs, from the defendant, forneglect-ío take haih The defendant set forth by way oí special plea, that the writ was lodged in his office on 3d of September, 1832, and that he personally served Mayrant with a copy, on the 12th October, ’ that the Governor ÍSSUCd his proclamation con-veiling the Legislature, on the 22d of October, 1832; that Mr. Mayrant was a Senator, and according to constitution of this State, privileged from arrest, and therefore the defendant did not arrest him. The plaintiff demurred. The presiding Judge overruled the demurrer and sustained the plea, and the plaintiff now moves to reverse his decision.
   O’Neall, J.

The 14th section of the first Article of the Constitution of this State, provides that “the members of both houses (the Senate and House of Representatives) shall be protected in their persons and estates, during their attendance on, going to and returning from the legislature, and ten days previous to the sitting, and ten days after the adjournment of the legislature.”

In the case of Tillinghast & Arthur v. Carr (4 M’C-152) it was held, that the privilege conferred on a member of the Legislature by this section of the Constitution, extended to exemption from personal service of process, as well as actual arrest.

From the facts set forth in the plea, it appears that the day on which Senator Mayrant was served with the process, was the 12th day of October, within ten days of the meeting of the Legislature, so that there could not even be a legal personal service, much less an arrest with a view to bail. ,

The writ was lodged in the sheriff’s office on the 3d of September ; a month and nine days elapsed before service was made : and the question is, was this a neglect of duty on the part of the sheriff? I am very clearly of opinion that it was. it is the duty of the sheriff to execute all writs and processes delivered to him within a reasonable time, and if he fails to do so, and damage results to the plaintiff, he is responsible for it. He is compelled to make return of them, fifteen days before the court to which they are returnable. But this general return day does not justify him in delaying the service until then. The act of 1784, P. L. 338, provides that “the sheriff of the district in which the party, against whom any process of the said court issues, resides, or the estate to be affected thereby lies, shall execute and make a proper return of all such process, writs of subpoena only excepted.” When is the sheriff to execute the writ? Unqestionably as soon after it is lodged in his office, as he can find the defendant. This is always a question of diligence, and of course is for the jury. The legal presumption is in favor of the officer, that he done big duty; bat the fact that he suffers a bail writ against an inhabitant of his district, to lié in his office for upwards of a month, would rebut that presumption, and put him to proof of search for the defendant, and that he could not be sooner arrested. The facts stated therefore in the defendant’s second plea, were not a legal bar to the plaintiff’s recovery; and the demurrer ought to have been sustained.

M’Cord & Hemphill, for the motion.

Desaursure, contra.

The motion to reverse the decision below is granted.

Johnson & Harper, Js. concurred.  