
    M’CLELAND vs. HOBBS.
    
      April 5th.
    
    It ia in the dif-cretion of the court to foe or nor to foe a ftie-fiff for not returning anexe* cutioti»
   OprNioN OF the Court. — From an examination of the law which subjects sheriffs to a fine for not returning executions on or before the return day ( ), it is conceived that it is in the discretion of the court to fine or not fine tlte sheriff; and this discretion is limited only as to the amount of the fine, which shall not exceed five pet* centum per month. It is easy to conceive cases where a sheriff may fail to return an execution on or before the return day — which failure may have arisen from accident, Or from the act of the plaintiff; in either of which he would be excusable. Therefore, every case must depend on the circumstances attending it, and the court: must exercise its discretion accordingly ; which, if abused, the circumstances can be spread upon the record by bill of exceptions, which will enable a superior court to judge of them, and correct the abuse. In this case the discretion, does not appear to have been ab.used, and therefore the judgment must be affirmed. 
      
      
        (a) Arts of 1796- 7, p.- 6i, 1 Brad.272.
     