Griffith v. Hicks ex rel. Commonwealth ( 1871 )

Opinion by

Judge Robertson :

There is not sufficient proof that an execution was ever issued to the sheriff of Daviess county. The receipt purporting to have been given by Warfield as deputy sheriff of Daviess county was incompetent as evidence because there was no proof of his signature, and because the execution itself or the execution docket would have been the highest evidence, and no execution having been issued and the execution docket not only failing to show the contested fact- but tending to show that the only execution issued was directed to the sheriff of McLean county, there is a failure to prove that the collection of the debt by Warfield was an official act binding on the sheriff of Daviess or his sureties.

Wherefore the judgment against the sureties was unauthorized and is therefore reversed and the cause remanded for a new trial.