Morehead v. Holliday , 9 Miss. 625 ( 1844 )

Mr. Justice Clayton

delivered the opinion of the court.

This was a motion against the sheriff of Copiah county, and his ^sureties, for failure to return an execution placed in his hands, according to law. The defendants filed two pleas as a bar to the motion, first that the plaintiff had suffered no damage from his failure to make return, and next, that he had levied the execution upon certain property, which had been afterwards sold for a trifling sum, and that he then had said sum ready to be paid. The motion was made at the term, next after that to which the execution was returnable, and the money arising from the sale, was offered at the court to which the motion was made.

The plaintiff in the motion filed a demurrer to these pleas, which was overruled by the court, and the motion dismissed.

The statute provides that “if any sheriff shall fail to return an execution to him directed, on the return day thereof, the plaintiff in the execution may recover judgment against such sheriff, and his sureties, for the amount of such execution, with five per cent, damages, by motion before the court, to which such execution is returnable, with eight per centum interest on the same till paid.” See H. & H. 298, § 29.

This provision is too plain to require comment. The failure of the sheriff to make return in due time, renders him absolutely and without exception liable for the debt. The measure seems to be a harsh one, but having been imposed by the legislature, we have no power to dispense with it. The pleas offered interposed no bar to the recovery of the plaintiff. The judgment is therefore reversed, and this court proceeding to give the judgment which the court below ought to have given, doth direct a judgment to be entered against the defendants for the amount of the execution, with five per cent, damages, and eight per cent, interest as prescribed by the statute.

Judgment reversed.