#### JACOB HAMLIN *vs.*WILLIAM B. MARCH.

The law requires that a writ (as in this ease on execution) shall be returned to the Court and not to the Clerk.

It is true *the*Clerk is the officer of the Court to receive the writ, and whatever may be raised upon it, as his office is the place, where the records of the Court are kept and preserved.

If the Clerk will not receive the return, when tendered to him, the officer, to discharge his duty, must return the precept and the money, if he has made it, to the Court. They will, upon a proper representation, make such order, as the case may require, and, in a proper case, direct their officer to receive the process.

The death of the Clerk during term time, is no excuse for not making the return.

Appeal from the Superior Court of Law of Davie County, at the Fall Term, 1848, his Honor Judge Moore. presiding.

Under the proceedings in this case, the plaintiff seeks to recover from the defendant, who is the Sheriff of Davie County, one hundred dollars, the penalty given by the Act of 1836, ch. 109, sec. 18, for not returning process. It appears that the plaintiff recovered a judgment in the County Court of Davie, at May Term, 1845, against Na«. than Hamlin, upon which a *fieri facias*issued, returna] ble to August Term following, which in due time came to the hands of the defendant’s deputy, who collected, the money. Early in the term of the Court, to which the writ was returnable, the plaintiff applied to the deputy,, in whose hands the process was, for his money ; which he refused to pay to him. On Wednesday evening of the-Term, the deputy, with the plaintiff, went to the Clerk of the Court, and the former offered to return the process and pay the money to him. The Clerk remarked he was-then busy and directed the plaintiff to call at his office *36the latter part of the week and he would then receive his money. At this time no return was endorsed on the execution. The Clerk was taken ill on Friday evening and died on Saturday — on both of which days, the plaintiff attended at the Court House, to get his money. On the Monday following, the deputy stated he had not returned the *fi. fa.*During the August Term, the plaintiff obtained a judgment *nisi*for the penalty given by the Act, against the defendant, for not making a due return of the writ. Upon that judgment, the *sci. fa.,*in this case issued, On the execution was endorsed, “August Term,” &c. To the *sci. fa.*the defendant pleaded *nul tiel*record, tender to the Clerk and refusal, death of the Clerk during Term.

The Court adjudged there was such a record and submitted the other issues to the jury, instructing them to ascertain from the evidence whether the defendant did return the execution in due time, as he was required by law. If they fopnd be bad done so, the plaintiff was not entitled to recover. The jury were further instructed that the offer by the deputy to return the execution to the Clerk, on the Wednesday evening of the Court, was not sufficient to discharge him from the penalty, unless the plaintiff had agreed to enlarge the time, within which the sheriff was required by law to make the return. If the plaintiff had so agreed, the defendant was entitled to their verdict. The jury found a verdict in favor of the plaintiff, and the defendant appealed from the judgment thereon.

*Rufus Barringer,*for the plaintiff.

*Lillington,*for the defendant.

Nash, J.

We do not concur with his Honor, the presiding Judge, in the charge he gave to the jury. In the first part of it, he submits to them to ascertain whether the process had been duly returned according to law. *37The defendant had not tendered such a plea. If he had, it would have been the province of the jury to ascertain the existence of the facts relied on as constituting a return, and the duty of the Court to instruct them, as to their sufficiency in law to have that effect. So, with respect to the other portion of the charge. The jury was instructed, if the plaintiff had concluded to enlarge the time, within which the defendant was to make his return, it would be a discharge. There was no such de-fence made by the pleas. These, however, are errors, if they be such, which operate no injury „to the defendant; for, from the case agreed, the plaintiff is very clearly entitled to judgment against him according to his *sci. fa.*

We are entirety satisfied, that neither of the pleas to the country can avail the defendant. The first is, that he had tendered the execution to the Clerk, who had refused to receive it; the second, that the Clerk died during the term, meaning, we presume, that, in consequence thereof, he was unable to make a return. To these pleas, the plaintiff might and ought to have demurred. If true, they were no answer to the charge. The law requires that the writ shall be returned to the Court and not to the Clerk. The language of the *fi. fa.*is, “and have you the said moneys, besides your fees for this service, before our said Court to be held, &c. on &c., and have you *then*and *there*this writ.” The precept then is to be returned to the *Court,*from which it issued, and not to the Clerk. It is true the Clerk is the officer of the Court to receive the writ, and whatever may be raised upon it, as his office is the place where the records of the Court are kept and preserved. If the Clerk will not receive the return, when tendered to him, the officer, to discharge his duty, must return the precept and the money, if he has made it, to the Court. They will, upon a proper representation, make such order, as the case may require, and in a proper case, direct their officer to receive the process. That *38this is so is shown by the fact, that if, as in this case, the Clerk should suddenly die, it would exonerate the sheriff from making any returns whatever, until another Clerk should be chosen — thereby much loss might be sustained, not only by plaintiffs in execution, but by other suitors. Neither then was the tender to the Clerk, and his refusal to receive the process, a due return by the defendant, nor was his death any excuse.

Per Cueiam. Judgment-affirmed.