Opinion
(August Term, 1852.)
A scire facias to recover a penalty imposed on a sheriff for not returning process cannot upon his death be revived against his representatives.
APPEAL from Manly, J., at Fall Term, 1851, of CATAWBA.
(484) Craig for plaintiff.
H. W. Guion for defendant.
The sheriff of Caldwell was amerced in the sum of $100 for not making due return of a writ of fieri facias at the instance of the plaintiff against one Miller, and a scire facias was served on him to show cause against it at the next term, and was served on him. Before the return of the scire facias the sheriff died, and then a scire facias to revive that proceeding was issued against his executor; and, upon being thus brought in, the executor insisted that the right of action did not survive, and that the plaintiff could not have judgment against him. The court was of that opinion, and refused to make the judgment absolute and awarded an execution for the amercement, and the plaintiff appealed.
The sum claimed in this proceeding is called, in the act, a penalty of $100, forfeited by not returning the process (Rev. Stat., ch. 99, sec. 18) but it is clear that it does not come within section 10 of the act to prevent abatement of suits (Rev. Stat., ch. 2), nor any other provision, saving rights of action after the death of one of the parties.
PER CURIAM. Affirmed.
Cited: Wallace v. McPherson, 139 N.C. 298.
(485)