
    Kirkmans vs. Rice et als.
    
    A sheriff, after default in returning a fi.fa. requested the plaintiff to issue an alias for his benefit. It was issued; the plaintiff informing him,that in doing so he did not intend to waive his right of action. Held, that there was no waiver, though a part of the money was collected by the alias and received by the plaintiff after the default.
    This motion was heard in the Circuit Court of Sumner, S. Anderson, Judge, presiding, and judgment rendered for the defendants, from which plaintiffs appealed.
    
      J. J. White, for plaintiffs.
    It is contended, that the receipt of a part of the money by plaintiffs upon an alias fi. fa. is a waiver of any right of action against the sheriff for an insufficient return made of the previousfi.fa. The proof shows, that in point of fact there was no waiver. Was there none in law.
    The case relied on, is that of Trigg vs. McDonald, 2 Humph. 387. That was a motion for a false return; this, for an insufficient return. The cases are entirely different. The case referred to by the court, in Trigg vs. McDonald, in Watson on Sheriffs, 204, 5 Law Lib. 147, is founded upon a case in 1 Carrington & Payne’s N. P. C. 154, republished in vol. 11 of Eng. Com. Law Reports, 351. This was an action for a false return to a ft-fa- in favor of the plaintiff against Rose for ¿£301. The sheriff returned, that he had levied £13. Evidence was then given to show the return was false. The defence was, that the plaintiff had received the ¿£13. He was advised to consider before he received the money, as it would waive any further claim he might have against the sheriff. However, the plaintiff took the money. Abbott C. J.: “The plaintiff, by accepting the money, has, in point of law, waived all further claim against the sheriff. The reason of that being considered, a waiver is palpable. The sheriff tells you what he has done, and you accept his act.” But no such presumption can arise here, either from the return of the sheriff, or the facts of the case which have been proved. It might just as well be argued, if the sheriff had returned, that he had made the whole of the money upon the execution, that the receipt of a part by the plaintiff, would be a waiver of all claim against him for the balance.
    
      Trimble, for the defendants in error,
    cited and commented on the case of Trigg vs. McDonald, 2 Humphreys, 384.
   Turley, J.

delivered the opinion of the court.

This is a motion for a judgment against the defendant Rice as sheriff of Sumner county and his securities, for the non-return of an execution. The execution was in favor of H. &. J. Kirk-man the plaintiffs, and against William B. Preston, Moses C. Preston and Jesse Grant, bearing test the third Monday in October, 1841, and returnable the third Monday in February, 1842. This execution came to the hands of the sheriff on the 23d of November, 1841, and was returned by him “not satisfied.” That this is no return, and that the sheriff and his sureties are made liable thereby for the amount of the execution with damages and cost, a.t this day is not a debateable question. But an alias execution on the same judgment was issued bearing test the third Monday in February, 1842, which came to the hands of the same sheriff, and on which he collected some moneys, and paid the m over to the plaintiffs. This, it is contended, was a waiver on the part of the plaintiffs, of the right they had acquired, by reason of the previous non-return, and that the sheriff is discharged thereby from responsibility for his previous neglect. Without entering into the question of what might be the effect of the issuance of an alias by the orders of the plaintiff after a defalcation of a sheriff and without his request, and a reception of money thereon, it is sufficient for this case, that the proof shows most abundantly, that the alias was issued at the request of the sheriff and for his benefit, and that he was expressly informed at the time, that plaintiffs-would not agree that it should amount to a waiver of any rights they had against him on account of his previous neglect, and that this court has heretofore held, that in such case there is a continuing responsibility on the part of the sheriff, and no waiver of right on the part of the plaintiff in the execution. There are some other points mooted on the part of the defence, but not seriously pressed, and we do not think it necessary to notice them, as this is manifestly the point in which this case was determined by the Circuit Judge, assimilating it to the case in 2 Humphreys, 384, which it in no wise resembles. •

The judgment of the Circuit Court is reversed, and we direct a judgment for the unsatisfied amount of the execution against the sheriff and his sureties, with twelve and one half per cent damages thereon and cost.  