Greer v. Milam ( 1876 )

McFarland, J.,

delivered the opinion of the court:

This was a motion against Greer and his sureties, as constable, for an insufficient return of an execution issued from a justice of the peace.

The return is insufficient on its face, according to the authority of Eakin v. Boyd, 5 Sneed, 204. It was issued and came to Greer’s hands on the 3d of December, and was levied on property the 30th of December, and returned the 2d of January, without giving any reason for mot having levied in time to sell within the thirty days.

The defense was that Banks, to whom the judgment had bean assigned, directed that the execution be held up. Milam Rad assigned the judgment to Banks as collateral security for other debts, -which, however, were not large, enough to cover the entire amount of the judgment. This arrangement, however, was afterwards rescinded by them. But whether Milam or Banks had the- right to. control the execution, they both deny in their testimony any interference. On the contrary, sa.y they urged the collection, and they are sustained by the weight of testimony.

Judgment for plaintiff is affirmed.