M'Whorter v. Marrs , 1 Stew. 63 ( 1827 )

JUDGE TAYLOR

delivered the opinion of the Court.

The second assignment was disposed of by express adjudication on the first writ of error in this case, and as to the first assignment, this Court would,not have remanded the cause, if it had not been considered that the Court below should again proceed in it.

As to the third, fourth, fifth and sixth assignments, the record states that it appeared to the satisfaction of the Court, that ¡VP Whorter was sheriff; that he received the execution; that it was not returned, and that the other defendants were his securities ‘for the due and faithful ■discharge of his duties as sheriff as aforesaid.” It also appears that the defendants were in Court when the judgement was rendered. It is evident that proof on these was a¿f|ucec[. if the defendants thought it insufficient, they should have taken, the necessary steps to spread it on the record. Where it appears from the record, that the 'Inferior Court examined testimony to establish a fact necessari to be proved, this Court, until the contrary appears, must always presume that legal testimony was required.

As to the eighth and ninth assignments, it appears that the Circuit Court rendered judgement for a fi ne of five per cent per month, on the §um of money specified in the ca. sa. from the time it was received by the sheriff, until the date of the judgement against him and his.securities. This is not authorized by the law The defendants should have been adjudged to pay the amount of the judgement on which the ca. sa. issued, with interest from the date thereof.

The plaintiffs in error could take nothing by the seventh, tenth, eleventh, twelfth and thirteenth assignments. On the eighth, and ninth, the judgement must be reversed, and the proper judgement rendered here. And of this opinion are all the Court.

The judgement wa saceordinglv entered against Marrs, for the costs accruing in the Supreme Court, and for Marrs against McWhorter and his- securities, for the amount of the execution and interest thereon, from the date of the, judgement against Bau d, to the 28th of October, 1825, when the judgement was rendered in the Circuit Court.

Judge Saeeold not sitting.