The Pascagoula democrat-star. (Pascagoula, Miss.) 1878-1920, 1879-04-25

A. O. Cox, sheriff, ct al, VS.. RI Ross
..r Admir-. No. 1851.
Error to the Circuit Court of Madison
County, Hon. S. s. Calhoun, Judge.
This was a motion by defendant
in error, under section 227, Code
Of 1871, against A. q. Cox, sheriff
Of Lincoln county, and the sure
ties on his official bond, for failure
of said Cox to return an execution
on the return day thereof into the
circuit court of Madison county.
from which it issued. TO this mo.
ton four pleas were filed, viz:
1. General issue.
2. That said Cox, sheriff, had
other writs of execution in his
hands against the same party,
which we're issued upon judgments
prior to the one in favor of Ross,
and that he had advertised there
under all the property of the de-
PENDANT in execution for sale to be
made II week after the return OF
the Ross execution, and that he
held it hoping to be able to make
the money out of the sale.
3. That the execution was re-
turned during the term to which it
was returnable.
4. That plaintiff in execution was
not damaged by reason of the en-
ecutiOn not having been returned
in time.
To the last three pleas Ross de-
INJURED, and his demurrer was sus-
tanned.
Cox then moved for a change of
venue to Lincoln county, because
he and his sureties all were resi-
dents of that county. This motion
was overruled. The case then went
to trial, and Ross introduced in
evidence the execution in question,
but failed to introduce the judg.
ment upon which it was sned ont.
He also introduced a certified copy
of the official bond of Cox in evil
which was objected to be-
cause it failed to comply with sec
ton 2l0, Code of 1871, by not be-
conditioned (among other
things) ''to pay over Immediately,
and without delay, to the proper
persons, all moneys collected by
of his office" The objec-
ton was %overruled, and the bond
read in evidence. Verdict and
Judgment rendered i'll favor of
Cox moved for u new trial, |
which was overruled, and he pros,
acuted a writ Of error.
CHALMERS, D.,
l. The application for change of
venue was properly denied. These
notions are determinable in the
:ourt 70 which the process is re-
.urnable, and not in the county of
residence of the defaulting
=. The demurrer to ID, Sd and
TN pleas was properly sustained.
llie penalty denounced against an
'fhcer for falling to return a final
process by section 227 of the Code
S strictly III the nature of IA penalty
o be inflicted upon him for neg
ect of duty, and while it enures to
he benefit of the plaintiff in exc.
ntlon, is in no manner dependent
pom any actual damage sustained,
$ is well settled by the former ad-
alterations of this court. We do
OF mean to say that there NAV
ot be some circumstances, such as
impOssibility to return
ne writ, or the act OF God, or the
Ike, which will defeat a motion for
ne statutory penalty, but only
nat no such facts are pleaded 4,
ere, and that absence of actual !
amage to the plaintiff will not
ave that effect. G
8. The absence from the sherif's
ond of II of the conditions pre- e
'lbed for such Instruments by v
'ctlon 2l9 of the Code was imma-
rial. The conditions which were I
'ntained in it were ample to bind
10 suretics for the default here
implanted of. The bond was in !,
teral compliance with the form
'escribed by section 800 of the
ode, aud even if ithad not been. by
express terms of said section A
would have been perfectly "valid
ld binding" 1t Is good as a stat. A
DRY bond, and entities parties
detected by it to invoke all the =
NEEDLES pointed out by the law y
ven.
a. The judgment upon which the
.ecution was based was a neces- A
ry part OF the proof to fix the
OF Cox, a S sheriff, on a
otion against him for failure to A,
turn the execution as directed,
d it devOlved upon Ross to pro.
ice it in evideuoe, which he failed 4,
do. AZ
Judgment reversed.