
    JOSHUA H. FENTRESS v. WILLIAM BROWN.
    A Constable does not subject himself to the penalty of $100 given by the Rev. Code, c. 34, s. 118, by declining to receive process which, at the time it was tendered, he could not have executed, ex. gr, process against a person then attending under subpoena before a commissioner.
    Debt for the penalty of $100, given by the Revised Code, c.. 34, s. 118, tried before Warren, J., at Spring Term, 1867, of the Superior Court of Randolph.
    It was shown that one Marrow sued out a warrant, in the name of a firm to which he belonged, against one Gibson, and tendered it for execution to the defendant, a Constable; that at the time it was so tendered Gibson was present (in New Salem, Randolph county,) attending under subpoena as a witness before a commissioner to give evidence in behalf of the present defendant in a cause to which he was a party, then pending in Randolph Superior Court; and that defendant declined to take such warrant. It was also in evidence that Gibson remained for several days thereafter in the county of Randolph.
    • The court instructed the jury that if they believed these facts the plaintiff was entitled to their verdict.
    Verdict accordingly; rule for a new trial; rule discharged; judgment, and appeal by the defendant.
    No counsel in this court for the appellant.
    
      Gorrell, contra.
    
    Although the warrant could not be executed at the time when it was tendered, yet the defendant was bound to receive it, unless it could not be executed within the thirty days during which it ran, and it appears that Gibson remained in the county for several days thereafter.
   Reabe, J.

By our statute a constable refusing or neglecting to return any precept to him tendered or delivered, which it is his duty to execute, forfeits to any one who will sue for the same, one hundred dollars. Rev. Code, c. 34, s. 118.

The question is, Did the defendant refuse to receive and execute process which it was his duty to execute ?

The person against whom the process was issued that the defendant refused to receive, was, on the day and at the time when the process was tendered, in attendance on a commissioner as a witness; and our statute exempts witnesses thus attending from arrest in civil cases. Rev. Code, c. 31, s. 70. If, therefore, the defendant had received the process which was tendered to him, he could not ■ have executed it. It was not only not “ his duty to execute it,” but if he had executed it he would have been liable to an action for false imprisonment.

It was not denied by the plaintiff’s counsel that such would have been the result if he had executed the process on that day; but it was insisted that it was his duty to receive the process when tendered, and execute it at a subsequent time when the person should be liable to arrest.

We do not think that an officer is liable to the penalty for not receiving process, unless it runs against a person who is then subject to it; or in the language of the statute, unless it is “ his duty to execute ” it then. If process were tendered to him on Sunday, he would not be obliged to receive it and hold it until Monday to execute; so if tendered to him out of his county, to be executed when he returns to his county, he would not be obliged to receive .it. It may be very obliging in an officer to make himself the depository of process and other papers which, on the next day or the next month he may execute; but he is certainly not liable to a penalty for declining thus to encumber himself with other persons’ matters. It is to be noted that the plaintiff in this case is not the person who tendered the process to the defendant, but is a volunteer, a common informer. There is no allegation that he has been injured by the refusal of the defendant to receive the process; nor is it alleged that the process was tendered the next or any other day; nor does it appear that he did not receive it and execute it .the next day.- At any rate the person who sued out the process does not complain. And the plaintiff insists that the offense was complete and the penalty incurred by the simple act of refusing to receive process on a day when it was unlawful for him to execute it. We think the defendant was not bound to receive the process at the time it was tendered.

It appears that the person against whom the process was issued was a witness for the present defendant in a suit which he had -with another. And it may be that process was tendered to the defendant to execute upon his own witness, when it was unlawful to exeotite it, for the purpose of perverting justice by offending the witness. If so, the plaintiff has very well merited the payment of the costs of this suit. At any rate, it does not appear that, either in strict law or plain justice, he is entitled to recover.

Per Curiam, Judgment reversed and venire de novo.  