
    Fellows’ vs Cross et al.
    
    Motion, Case 4.
    
    Error to the Clinton Circuit.
    
      October 13.
    
      Sheriff. Execution. Substitution. Penalty.
    
    Case stated.
    Proceedings under Ex’on; and —Agreement between plaintiff and defendant in execution — after the lapse of one month after return day.
   Chief Justice

Robertson delivered the Opinion of the Court.

The Circuit Judge, after hearing all the evidence on both sides, dismissed a motion made by the plaintiffs in error as execution creditors, against the defendant, as the Sheriff of Clinton, and his surities, for a judgment for the penalty.denounced by the Act of 1811, for a failure by the sheriff to return, within a month after return day, a ft. fa. which had been delivered to hirn to execute in favor of the plaintiffs against B. H. & H. M. Emerson. And this writ of error seeks the reversal of that judgment.

It appears that immediately after the reception of the execution, the sheriff had levied it on some town lots to which the debtors held only an equitable title, and on a stock of dry goods, on which other executions in favor of other creditors had been previously levied by him — that in due time, he had regularly advertised a sale, and in good faith, attempted to sell both the goods and the lots, but failed altogether as to the lots for want of bidders— that though he had made several sales of portions of the goods under the prior executions, those executions had not been fully satisfied, nor had all the goods been sold at the end of the month succeeding the day prescribed for the return of theft, fa. in favor of the plaintiffs — and that about a month after that time, to wit, on the 4th of December, 1838, the plaintiffs, with a knowledge of all those facts, made an agreement with those debtors, the Emersons, whereby, on the payment by the latter of $125, and a promise to pay $75 at the end of three months, and then to give a mortgage on their interest in the town lots, the former undertook to suspend the execution for three months, and to continue the suspension for one year longer in the event of the payment of the $75, and the execution of the mortgage; and also agreed that if the sheriff should, in the mean time, be able to complete the sale of the goods and obtain any balance applicable to their execution, he should apply it to the payment of the said $75, and that if under this contract, the whole amount of their debt should be collected, the Emersons should pay to the sheriff all his commissions.

Return on Execution.

Defendant in execution, nothavingperfoimedhis agreement, pltf. moved against sheriff.

Sheriff liable to 30 per cent damages for failing to return Execution; tho’ pltf. is neither injured or delayed.

It appears also, that the sale of the whole of the goods not having produced a sum sufficient for satisfying the prior executions, the execution of the plaintiffs was returned about the 1st of May, 1839, with all the material facts of the case endorsed upon it.

Not long afterwards, this procedure was instituted, and in the absence of any direct proof as to the fulfilment of the contract of December, 1838, we may presume that the Emersons neither executed the mortgage nor paid to the plaintiffs any more money.

Although the foregoing facts authorize the conclusion that the sheriff acted in good faith, and did not subject the plaintiffs to any injury or even delay, which would have been prevented by a return of their execution within a month after the return day — nevertheless, unless they had approved his act of retaining the execution for the prudent purpose of making the levy of it on the goods available, if possible, as soon as the prior levies should be fully effectuated, his non-return should have been deemed a technical delinquency, which might have authorized a judgment for the severe penalty prescribed by the Statute of 1811.

Agreement between plaintiff and defendant in execution, after sheriffhad incur-ed penalty for not returning it, •whereby sheriff is defeated of his right to substitution, may effect his exoneration.

Plaintiff’s right to recover penalty in such eases must be made manifest.

But still, the agreement of December, 1838, if made without his concurrence, though it might not have exonerated him from the penalty of 30 per cent, might perhaps have presented ground for exoneration, not only to the extent of the sum received by the plaintiffs, to wit, $125, but to the extent of the whole amount of their execution, because, by thus controlling the execution they suspended and perhaps defeated his right to secure his own indemnity by either proceeding under the levy, or returning the execution and procuring another, to which he might have entitled himself under his equitable claim to substitution — and this the plaintiffs ought not to have done if they intended to enforce the penalty.

We are of the opinion however, that the agreement of December, 1838, authorizes the deduction that the plaintiff had either directed or thereby approved and ratified the course which had been pursued by the sheriff.

There seems to have been no cause for disapproving what the sheriff had done — the tenor of the agreement authorizes the presumption that he was privy to it, and we should not presume that he would have assented to if had there been any intention.to subject him to penalty for any thing he had done or failed to do — his prolonged retention of the execution for three months more was provided for by the agreement, and he was made, in the mean time, the agent of the plaintiffs for effectuating the agreement, and the ultimate payment of his fees was also expressly provided for.

These facts conduce strongly if not conclusively, to the presumption that in omitting to make a fruitless, and probably in some slight degree, an injurious return of the execution, he had acted consistently with the authority of the plaintiffs, or that they afterwards ratified his acts, availed themselves, of the benefit of them, and waived all technical claim to the penalty denounced by the act of 1811, if they were ever entitled to claim the exaction of it.

At least there must be great doubt whether these aro pot the proper deductions from the facts. And therefore, as the title of the plaintiffs should be made manifest in such a penal case, we do not feel authorized to reverse the judgment of the Circuit Court.

Cates and Wheat for plaintiffs.

Wherefore that judgment is affirmed.  