The comet. [volume] (Jackson, Miss.) 1877-1882, 1879-04-19
SUPREME COURT DECISIONS.
Reported Weekly by jenkins
d Lille, Attorneys at Law.
MONDAY, april IL, 1879.

| n. ". COA, onerlH, et a.,
vs. mo. 2s57.l
r. j. Ross, Admir-
Error to the Circuit Court of Madison
county, Hon. s. S. Calhoon, Judge.
This was a motion ly defendant in error
under section 227, Code of 1871, agains
A. o. Cox, Sheriff of Lincoln county, anC
the sureties 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 motion four pleas were filed, viz
LIST. General issue. I'd That said Cox,
Sheriff, had other writs of execution in his
hands against the same party, which were
issued upon judgments prior to the one in
favor of Ross, and that he had advertised
hereunder all the property of the defend-
ent in execution for sale to be made one
week after the return day of the Ross execu-
ton, and that he held it hoping to be able
to make the money out of the sale
Sd. That the execution was returned
during the term to which it was returnable.
4th. That plaintiff in execution was not
damaged by reason of the execution not
having been returned in time.
To the three last pleas Ross demurred,
and his demurrer was sustained.
Cox then moved for change of venue to
Lincoln county, because he and his sureties
all were residents of that county. This mo-
ton was overruled. The cause then went
to trial, and Ross introduced in evidence
the execution in question, but failed to in>
troduce the Judgment upon which it was
sued out. He also introduced a certified
copy of the official bond of Cox in evidence, |
which was objected to because it failed to |
with section go, Codo Of 1871, by |
not being conditioned (among other things) |
'to pay over Immediately, and without |
delay, to the proper persons, all moneys |
by virtue of his office" The OBJ
lection was overruled, and the bond read in
evidence. Verdict and Judgment rendered
in favor of Ross. Cox moved for new
trial, which was overruled, and he pros
ecuted writ of error.
CHALMERS, j.,
Held
LIST. The application for change of venue
was properly denied. These motions are
in the Court to which the pro-
cess is returnable, and not in the county of
the residence of the defaulting officer.
I'd. The demurrur to I'd, Sd and 18th pleas
4 - IL
bounced against an officer for failing to re-
urn final process by section 227 of the
Jode is strictly in the nature of penalty
o be inflicted upon him for neglect of duty,
md while it enures to the benefit of the
plaintiff in execution, is in no manner de-
pendent upon any actual damage sustained,
IS is well settled by the former adjudications
# this Court.
We do not mean to say that there may t
lot be some circumstances, such as physl- |
al impossibility to return the writ, or the q
ct of God, or the like, which will defeat
lotion for the statutory penalty, but only
nat no such facts are pleaded here, and
nat absence of actual damage to the plain |
if will not have that effect.
Sd. The absence from the Sheriffs's bond v
f one of the conditions prescribed for .
1ch instruments by section 219 of the r
ode was immaterial. The conditions v
hich were contained in it were ample TO o
ind the sureties for the default here COM o
lained of The bond was in literal COM Il
lance with the form prescribed by section Fl
% of the Code, and even if it had not S
cen, by the express terms of said section
would have been perfectly valid and f,
hiding" 1t is good as a statutory bond, W
Id entities parties protected by it to in CT
BIKE all the remedies pointed out by the re
W given.
4th. The judgment upon which the ex
,ution was based, was a necessary part OF
10 proof to fix the liability of Cox, as m
leriff, on a motion against him for failure &C
return the execution as directed, and it Sc
volved upon Ross to produce it in evil kl
nee, which he failed to do. A.
Judgment reversed. til