O'Bannon et al. vs Huffman

O’Bannon et al. vs Huffman. Motion'.. Case 68. Error to the (xarrard Circuit. April 27. Sheriff’s liability, on motion, for failing to return execution for thirty days. Sheriff, for failing to return execution for thirty days after the return day, is liable, on motion, for principal, interest, and costs,- and 30 per cent, thereon, at the time the liability is insured, and not to be computed at the rendition of the judgment. [MAJORITY — Chief Justice Robertson] Chief Justice Robertson delivered the Opinion of the Court- According to the literal and established constructive import of the statute of 1811, (Stat. Law. 626,) a sheriff, for failing to return a. fieri facias, for one month succeeding the return day thereof, is liable, on motion, for the aggregate amount of “principal, interest, and costs, expressed in such writ of execution,” and which was due and collectable at the instant when he became liable to such motion, that is, at the end of one month from the return day, and also for 30 per cent, penalty, on that aggregate sum, as thus due when the delinquency occurred. He is not liable for interest between that time and that of the judgment against him, nor for 30,per cent., on such intermediate interest. If a party elect to proced for the penalty, he cannot recover more than the amount due at the expiration of one month from the return day, and 30 per cent, thereon: Flournoy vs Rubey, 5 J. J. Marshall, 322. The judgment against the sheriff and his sureties, in this case, being for the amount of the debt and costs expressed in the execution, and interest on the debt, up to the date of the judgment, and 30 per cent, on that aggregate amount, was therefore, to a small extent, excessive, and must, consequently, he reversed. Bradley & Harlan for plaintiffs: Turner for defendants. Judgment reversed, and cause remanded for a judgment to be entered pursuant hereto.