
    Roberts, et als. vs. Bostick.
    The non-return of fi. fa. must he atfirmatively shown to justify a judgment by motion against a sheriff. A statement by the clerk that he did not recollect whether'the fi. fa. was returned the first or second day of the term was not sufficient evidence to authorise a judgment.
    In this case, a judgment was rendered in the circuit court of Coffee county, against Roberts, the sheriff, and his securities, for the non-return of a fi. fa., Thomas Maney, J. presiding by interchange. The defendants appealed.
    
      Taul and Brien, for plaintiffs in error.
    
      Hickerson, for defendants in error.
   Green, J.

delivered the opinion of the court.

In this case, the circuit court.of Coffee county rendered a judgment, against the plaintiff in error, Roberts, as sheriff of Grundy county, and the other plaintiffs in error, his securities, for failing to return an execution that came to his hands.

We are of opinion, that, when an action is given by law. against a party for failing to do an act, it is incumbent on the plaintiff to prove that the act was not performed.

In this case, the only evidence as to the non-return of the execution, is found in the testimony of the clerk of the Coffee circuit court. He says: “That during the early part of the October term of the circuit court of Coffee county, the execution referred to in the notice read by the plaintiff, was returned into his office; he could not say that it was, or that it was not, the first day of the term, but recollects that it was early in the term.”

This statement does not prove that the execution was not returned the first day of the term.

The precise period of the' return is left in doubt. The witness is too vague in his recollection, for this court to assume that the return was not made according to law.

Reverse the judgment.  