Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-02-03
Uss,sII and others vs. Southern Bank Of Kentucky

This was a motion for Judgment against the plain
tiff in error as Sheriff of Dyer county, and his OIL
cial suretes, for insufficient return OF an exc
cutiOn
The execution issued on the 18th Of August, 1856,
on Judgment in favor Of the Bank against 5. +.
Bradford and four other defendants, returnabe to
the October term of said Court and was received by
him four days after its issuance to wit 18th Au-
gust
The following return was endorsed on the exc
cutiOn
mo personal property to be found IN my county
of e. W. Tipton zone of the defendants) on which
can levy on for said debt and cost This 10th OF Au
rust. 1856. J. W. HAssELL Sheriff
Then follows a statement of a levy, of the same
date upon one tract of land Of one thousand acres
but not showing whose land it was. And the exc
cution was returned with an endorsement, that the
land was offered for sale the 9th day Of October,
1856" and there being bidders, the execution re
turned to the office,
1t is argued for the plaintiffs in error, that the
Court erred IN sustaining the motion, and the case
of Crowder VS.. Simms Hum, 25I, Is relied on as
an authority That case does not apply to the pres
cnt We are not now inqulrlng whether or not, II
the tract Of land levied had been Sold the title OF
the purchaser could have been successfully I'M
Reached on the ground that the personal property
of ali the defendants in the execution had not
bepp exhausted before proceeding against the real
property Of one Of them. BE this as II may It does
not touch the present question. The inquiry now
SON in law why the money was not made accord
in,, IN the command OF the writ. That 1t does not
Is Zoo Obvious to admit of any question. Without
controverting for the present, any position assum-
Oh in Crowder VS. Simms, it may be observed that
If is tbe duty of the Sheriff By positive law-Wheth'
81, the statute be construed TO be imperative OF
merely directory-frst 10 levy on ule personal
1,.nraTtv of the defendant defendants, before
making a levy on land, If there be seEeraI delen-
dants. An primarily liable as in the present case
the Sheriff may proceed against the goods ana cIia'
tells of either one to levy the whole dept lea'Ing
the question Of contribution to be settled among 'ne
defendants NIL L,-a
And if some Of the defendants thus Haole' nv I've
personal property liable to the satisfaction % t Cie
debt and others have not 1t Is the duty OF 'le neL
it, to proceed against the former or eIther Oh tnei
until propei tv sufficient is found to discharge tne
debt, He cannot screen himself from nanny y
returning that one Of the several defep daills ~ ~
property subject to execution To protect ann us
return must show that the money could not nave
been made out Of either defendants.
The present return is, therefore, lnsupcleh' a.
nrinlatdcie the money might have been made out OF
either of the four other defendants, From the 81
ence of the return it cannot be presumed that they
had no personal property. and if the fact were So
il was incumbent on the Sheriff to return the faeI,
afiirmatively.
Judgment affirmed. MchINAEf'
Test: NJ D. WEIGH, Clerk.