
    J. D. W. Duckworth et al. vs. Uriah Millsaps.
    The return of a sheriff, made upon process in discharge of duty required by law, which shows a reason or excuse for an omission to perform the duty required by the writ, is not conclusive evidence in favor of the officer; on a motion against the officer, predicated on such omission, his return may be impeached.
    Where a fiat for an injunction is granted, it is the duty of the clerk not to issue it until the bond required by the fiat is executed; but if he do issue it, the service of it on a party is evidence to him that the preliminary bond has been duly executed ; in a motion, therefore, against a sheriff for omitting to make due execution of a writ of jfieri facias, his return that it was stayed by injunction will be a prima facie excuse which will be made conclusive by the production of the injunction, whether an injunction bond were given or not.
    Where a subpoena and injunction are combined in the same writ, it is the duty of the clerk, out of whose office the subpmna issues, to indorse upon it that its effect is suspended as to the injunction until the party execute sufficient bond ; until the bond is executed, the writ has not the efficacy of an injunction.
    IN error, from the circuit court of Smith county; Hon. Thomas A. Willis, judge.
    Uriah Millsaps entered a motion against Joseph D. W. Duck-worth, sheriff of Smith county, and his sureties on his official bond, for voluntarily and without authority omitting and neglecting to make the money on a fieri facias which issued on a judgment in favor of Millsaps against Richard Flower, and came to the hands of Duckworth as sheriff. The sheriff and his sureties appeared to the motion; on the trial the writ of fieri facias was read, and the return on it was in these words, viz. “Proceedings on fi. fa. stayed by a writ of injunction obtained in chancery, this 10th February, 1845. J. D. W. Duck-worth, sheriff Smith county.” The defendants then introduced and read a writ of injunction issued by and under the seal of the superior court of chancery, at the. suit of Flower against Millsaps, enjoining him from proceedings at law under the. judgment, until the further order of the chancellor in the premises ; which writ issued in December, 1844. The court below decided that the writ of injunction constituted no defence for the sheriff’s failure to make a levy, there being no indorsement on the writ that bond bad been given; whereupon the court rendered judgment for the plaintiff in the motion, and the defendants sued out this writ of error.
    
      W. P. Harris, for plaintiff in error.
    The errors assigned are, 1. That the court below gave judgment against the defendant, when the default was caused by the writ of injunction from the superior court of chancery. 2. That the judgment was given in favor of the governor in a proceeding not prosecuted in his name.
    The motion, on which the judgment below was rendered, is based on the statute H. & H. Dig. 642, sect. 42. ■ The particular language of the section, which authorizes the motion, is as follows : “ Or shall make any other return upon any such execution, as will show that such sheriff, &c. hath voluntarily and without authority omitted to levy the same.” It would seem, from this language, that unless the default was disclosed by the face of the return, a motion, in the form of the one under consideration, does not lie. In this proceeding the simple inquiry should be, whether the language of the return shows a default. The truth of the return is not a legitimate subject of inquiry ; for the motion in effect admits that it is true in point of fact, but that in law it shows a default. This view is strengthened by reference to the statute H. & H. Dig. 297, sect. 28, which provides for a distinct proceeding against a sheriff, when the truth of the return is controverted. If this construction of the statute be correct, the inquiry is limited to the face of the return. The return on which the motion below was made, is in the. following words: “ Proceeding on this fi. fa, stayed by writ of injunction obtained in chancery.” Clearly no just interpretation of this return can make it disclose a wilful or unauthorized omission, so long as we admit that legal process can be restrained by injunction.
    The writ of injunction itself was introduced by the sheriff, and appears to be regular in form and absolute on its face, directing in positive terms a suspension of proceedings on the fi. fa. in the sheriff’s hands. The fact that it contained no indorsement that bond had been filed, did not render it inoperative. The statute H. & H. Dig. 515, is merely directory to the clerk. The sheriff had a right to presume that the judge, in granting the injunction, and the clerk in issuing it, had acted in accordance with the law in such cases. It is not the action of the clerk, in making or withholding the indorsement required, which gives or takes away the efficacy of an injunction. The person against whom it is directed must be governed by the face of the writ itself.
    The case of Davis v. Dixon’s Adm’r. 1 How. 64, will doubtless be relied on by the counsel on the opposite side, as asserting a different doctrine. But it will be perceived, from a reference to that case, that the injunction did not apply to the fi. fa. in the hands of the sheriff; and it appears also, and the court state the fact, that no bond had been filed.
    The statute authorizes the judgment-creditor to recover by motion, in case like the present; and as the proceeding commenced in the name of Millsaps, it is difficult to perceive how the name of the governor has crept into the judgment of the court. It may render the case more imposing, but there is no rule of practice to sanction it.
   Mr. Justice ThacheR

delivered the opinion of the court.

Millsaps filed a motion in the circuit court against the sheriff of Smith county and his sureties, for voluntarily and without authority omitting to make the money upon a certain fieri facias regularly issued and placed in his hands, and in which said Millsaps was plaintiff. Upon the hearing, the fieri facias was produced, and it was found to bear this return : “Proceedings on this fi. fa. stayed by writ of injunction obtained in chan-ceiy.” The writ of injunction was likewise produced.

It is contended, that if the return of the sheriff upon a fieri facias does not show a default upon his part, the motion, in its present form, does not lie. The return of a sheriff made in the discharge of duty required by law, derives its force from being an official act. It is evidence between third persons, and also in some cases in favor of the sheriff, when he is a party, and when he becomes liable by such return. ,But where the return shows a reason or excuse for an omission to perform the duty required by the writ, it is not conclusive evidence in favor of the officer. Such a rule would be to permit the sheriff to make evidence in justification of his evasion of duty. Rowand v. Gridley, 1 H. 210.

In this case, it is true that the return of the sheriff did not conclusively show that he had not “ voluntarily and without authority omitted to levy the fieri facias,” but in support of his return he introduced in evidence the writ of injunction itself. This constituted ample authority upon the sheriff to stay his proceedings upon the fieri facias.

When an injunction is granted, it is sometimes the practice to combine the writ of injunction with the subpoena, in which case it is the duty of the clerk, out of whose office the subpoena issues, to indorse upon it that its effect is suspended, as to the injunction, until the party execute sufficient bond. H. & H. 515, sect. 44. But when a writ of injunction is issued in its separate shape, no such indorsement is required. It is true that a writ of injunction should not be issued by a clerk, except upon bond duly executed, but the service of such a writ upon a party is evidence to him that the preliminary bond has been duly executed. The case of Davis v. Dixon's Adm'r, 1 H. 64, as appears by an inspection of the original papers on file in this court, was a case where a sheriff omitted to proceed upon an execution upon the service of a subpoena out of chancery, containing an injunction indorsement upon it, but without the in-dorsement of the clerk, as required by the statute above quoted. In that case, also, the record contains no evidence that a bond was executed by the proper parties. It will be seen, therefore, that that case differs materially from the one now under consideration, and that the two cases illustrate the principle above set forth.

The judgment of the court below is therefore reversed, and this court, proceeding to give the judgment which the court below should have given, directs that the plaintiff in the circuit court take nothing by his motion.  