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Freeman v. Skinner.

Nash, J. There is much want of precision and clear. ness in the statement of the alternative portion of the charge. By the rules of grammar, the last relative pronoun they ought to refer to the next antecedent, with which it is connected, that is, fifty stands. But such was not the understanding of the jury. If it had been, they could not have given the plaintiff damages for a sum exceeding seventy-five dollars, for that would have been the price of fifty stands, if made agreeably to contract; on the contrary, they have given him one hundred and twenty-five dollars as the value of the casks received by the defendant. The jury must have understood the Court, as instructing them, that the defendant, by receiving a part of the stands, had made the whole number his, and was bound to pay for the whole, although the remaining fifty were not made according to contract. That they must so have understood the charge, is manifest from the fact, that they allowed the plaintiff damages to the amount of $125, as the value of the stands he was bound to pay for. Now they could not have valued the fity stands which the defendant had taken, at that price, for at one dollar and fifty cents per stand—the stipulated price—they could have been valued at but seventy five dollars. But the jury had said, that the whole one hundred were defectively made, and not according to the contract. They must then have valued the whole lot, upon the principle that the defendant had, by receiving fifty stands, received the whole and was bound to pay for the whole, what they were worth. If it was not the intention of his Honor so to charge them, he should have rectified their misconception of his meaning ; if he did so intend, he erred in point of law. The stands were delivered at the place and within the time specified ; upon inspection, they were found to be made not according to the contract. The defendant might have refused to re

Freeman v. Skioner.

ceive any of them, and the plaintiff would have had no right to complain. But he did take such a portion of the stands, as were made nearest to his agreement—refusing the remainder. This he did, without objection from the plaintiff. The contract was for one hundred stands, at the price of one dollar and fifty cents per stand, and not for one hundred and fifty dollars. The stands were to be delivered between the first and twentieth of March. Suppose the plaintiff had delivered to the defendant fifty of them at one time, made as he had contracted they should be made, and on another day tendered fifty more, badly made, not coming up to the contract, would the defendant have been obliged to receive them, though badly made ? Certainly not. If by receiving the first fifty, he was bound to receive the last, it would be because, he had precluded himself from refusing them, have ing already accepted them. The defendant, by receiving the fifty stands, did not receive the other fifty, and is on. ly bound to pay for them what they were worth.

There was then error in his Honor's charge.

PER CURIAM. Judgment reversed and a venire de novo awarded.

JACOB HAMLIN vs. WILLIAM B. MARCH.

The law requires that a writ (as in this case 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 what.

ever 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 Davis County, at the Fall Term, 1848, his Honor Judge MOORE presiding

Under the proceedings in this case, the plaintiff seeks to recover from the desendant, 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 Nathan 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 tho 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

Hamlin v. March.

the latter part of the week and he would then receive his money. At this time no return was endorsed on the exe. cution. 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. 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 durinz 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 found he had 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 pre: siding 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.

Hamlin v. March.

The 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, it 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 defence made by the pleas. These, however, are errors, if they be such, which operate no injury „to the defendant ; sor, from the case agreed, the plaintiff is very clearly entitled to judgment against him according to his sci. fa.

We are entirely 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 dur. ing 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 irue, 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, frc. 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

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