
    Davis v. Lancaster, late Sheriff, &c.
    1 From Halifax.
    A Sheriff is not fineable, who returns his execution within the time prescribed by Law, but fails to return the money made thereon into Court, or to pay it to the party or his attorney.
    The Sheriff returned upon an execution which came into his hands, that it was satisfied, but did not return-into Court, nor pay to the party, or his attorney, the money due thereon. Whereupon, the Sheriff was fined nisi. A scire fiadas issued, .which being, made known and returned, it was moved that Judgment be entered against the Sheriff according to sdre fiadas. This was objected to, because the Law had made no provision for fining the Sheriff who did not pay the money into Court,, or to the party or his attorney. The case was referred to this Court, to determine whether, if the Sheriff return his execution within the time prescribed by Law, but does not return the money into Court, or pay it to the party or his attorney, he is fineable ?
   Halt., Judge,

delivered the opinion of the Court:

The act of 1777, ch. 8, sec. 5, under which the Defendant has been fined nisi, directs «that every Sheriff, by himself or his lawful officer or deputy, shall execute all writs and other process to him legally issued, &c. and make due return thereof, under the penalty of forfeiting fifty pounds, &c. where such process shall he delivered to him twenty days before, the sitting of the Court, to he paid to the party grieved, &c.” This act being penal in its operation, is to be construed strictly. Of what is the Sheriff directed to make due return? “,Of all writs and other process.” If he fail to do this, he incurs the penalty. To say that a due return of the process means a transfer of the money into the proper office, as well as a return of the authority under which it was made, would be to give to the act a more liberal construction than we are authorised to give. This opinion is confirmed by the provisions contained in the 10th section of the same act, which give a summary remedy against Sheriffs who fail to pay into Court money which they have made upon executions, where their receipt of the money is Evidenced by their returns upon the executions.

It is said, however, that it is of little moment to the Plaintiff, what the return upon his execution may be, if the money is withheld from him. It is surely some consequence to him to know how his rights stand; whe-llier the money be in the hands of the sheriff, against whom he may proceed to enforce payment, or still be in the hands of the Defendant, against whom he may renew his execution. If, according to our construction of the act, there be a mischief unremedied, it is the business of the Legislature to provide a remedy ; our province is to declare the law, not to give it. Our opinion therefore is, that the scire facias has improperly issued, and ought to be set aside.  