#### STATE ON THE RELATION OF JOHN A. PARKER *vs.*ROBERT W. WOODSIDE & AL.

A Sheriff, to whom a writ has been delivered, but who goes out of office be* fore the return day of the writ, has no power to make the return on it, and therefore is not liable to amercement for not doing so.

It is the duty of the Sheriff, going out of office, to deliver all the process remaining in. his hands, to his successor.

A judgment of an amercement against a sheriff is not conclusive against the sureties on his bond. They may show that the judgment was either fraudulently or improperly obtained against their principal.

The ease of *McLin*v. *Hardie,*3 Ired. 467, cited and approved.

Appeal from- the Superior Court of Law of New Hanover County, at the Special Term, in January IS47, his Honor Judge Manly presiding.

This was an action of debt on the official bond of the defendant, R. W. Woodside, as Sheriff of Brunswick County, to recover against him and his- sureties- the amount of an amercement, for which judgment *nisi*was- obtained against said Woodside at September term 1844, of New Hanover County Court, and which was made absolute at December term 1844, of said Court.

The said bond bore date on the 5th day of September 1843., and expired on the 5th day of September 1844, being the last of several official terms of said Sheriff; and it was proved and admitted, that an execution had been placed in the hands of the said Woodside, Sheriff as afore*297said, tested of June term 1844, of New Hanover County Court, and returnable to the September term of said Court ; and it was further proved that some time in the month of August 1844, the Sheriff acknowledged, that he held the said execution, and had levied upon a tract of land belonging to the defendant in said execution; that the said Sheriff had failed to return the said execution to September term 1844, of New Hanover County Court; that the said term commenced on the 12th day of Sep* tember 1844, and that the amercement against the Sheriff had been obtained for failing to return the said execution.

On these facts it was contended, that the defendants were not liable, inasmuch as no proceeding to amerce the Sheriff had taken place until the *12th*day of September 1844, seven days after the expiration of his official year, and that, admitting the plaintiff to be at liberty to go behind the judgment of amercement to shew, that, although the amercement had been rendered after the expiration of the sheriff’s official term, it had been for a particular default, yet that would not help the plaintiff, because the default,for which he had been amerced,had also occurred after the expiration of his official ypar, The plaintiff insisted, that the judgment and amercement were conclusive against the Sheriff and his sureties, and definitively fixed their liability. A verdict was taken for the plaintiff, with leave to the defendants, notwithstanding the verdict, to move that the plaintiff be non-suited, should the Court be of opinion that on the facts the plaintiff is not in law entitled to recover; and the Court being of this opinion, a non-suit was accordingly entered and the plaintiff appealed.

*W. II. Haywood,*for the plaintiff

*Strange,*for the defendants.

Daniel, J.

The execution, which the relator placed in the hands of Woodside, commanded the sheriff to re*298turn it, and what he had done under it, to the next term of the. Court out of which it had issued. And the Act of ' Assembly subjected the sheriff to a penalty of $100, in case he neglected to return the writ. The Act, being penal, must be construed strictly. ¥/oodside was not sheriff, at the time the execution was returnable ; he, by law, therefore, could not return the said writ into Court. The new sheriff or coroner, as the case might be, was the ' proper person to return the writ. It was the duty of Woodside, however, to turn over, or surrender to the new sheriff or coroner, all the writs in h:s hands, to be returned to the ensuing term by the new officer. If the plaintiff in this execution has been injured by the old sheriff neglecting to do his duty, he has his remedy by an action on the case against him; but he is not entitled to the penalty of $ 100. The plaintiff insists, that the defendants are concluded by the judgment against Wood-side for the $100. We do not think so ; the sureties of the sheriff may shew, that the judgment was either fraudulently or improperly obtained against their principal. It seems to us, however, that the case of *McLin*v. *Mar-die,*3 Ired. 407, runs nearly upon all fours with this case, and is decisive of it. It was then held, that a sheriff, to* whom a writ had been delivered, but who went out of office before the return day of the writ, had no power to make the return on it, and therefore was not subject to an amercement for not doing so. Without over-ruling this case, (which we do not feel disposed to do,) we are bound to affirm the judgment, which is done accordingly.

Per Curiam. Judgment affirmed.