
    Planters’ Bank vs. Porter.
    A motion was made against Porter for a failure to return an execution, and proof was introduced to show that the execution debtor had paid the judgment to the plaintiff, after the return day. But the court declares that payment by the debtor, prior to the return day, constitutes no de-fence for the default of the sheriff, much less payment after the return day.
    The Planters’ Bank recovered a judgment against Nixon and others, in the circuit court of Maury county, for one hundred and sixteen dollars and costs. An execution was issued and placed in the hands of N. Porter, sheriff. Porter did not return the execution at any time. A motion was made against him for the non-return, and he introduced evidence to show that the defendant, Nixon, had paid the Bank, after the return day of the execution. The judge, Dillahunty, charged the jury, that if the execution was delivered to the defendant, and not returned on the return day thereof, according to law, the jury should find for the plaintiff, unless the jury should believe that the amount of the judgment, or execution, was paid to the plaintiff before the return day of the execution; that if the jury should believe the debt was paid to the plaintiff, before the return day of the execution, the plaintiff could not sustain this action by way of motion for failure to return the execution against defendant. The court further told the jury that, if they should believe the debt was paid to the plaintiff after the return day of the execution, the plaintiff would be entitled to a judgment on this motion for twelve and-a-half per cent, upon the amount of the judgment, but would not be entitled to the whole amount of the judgment and interest; in conclusion, the court told the jury, if the proof satisfied them that the execution was delivered to the defendant and not returned by him on the return day thereof, they should find in favor of the plaintiff, unless the proof satisfied them that the debt was paid to the plaintiff before the return day; if they believed the money was paid as last stated, then they should find for the defendant; if the money was paid after the return day, to the plaintiff they should find for the plaintiff the penalty given by the statute, of twelve and-a-half per cent., on the amount of the judgment; if they should believe the money was never paid to the plaintiff, at any time, they should find for the plaintiff and the amount of their finding then, would be the amount of the judgment, interest thereon, and twelve and-a-half per cent, on this amount in addition. The jury found a verdict for the plaintiff for thirteen dollars and eighty-eight cents. Upon which there was judgment. The plaintiff appealed.
    
      Fogg, for the plaintiff in error.
    
      Nicholson and Houston, for the defendant in error.
   McKinney, J.

delivered the opinion of the court.

This was a motion for judgment against the defendant, as late sheriff of Maury county, for the non-return of an execution issued from the circuit court of said county.

The defence set up and relied upon in the circuit court was, that, subsequent to the return day of said execution, an adjustment of various matters had been made between the plaintiff and defendant in the execution; in which was included, as is alleged, the judgment upon which said execution issued; and thereby the plaintiff had obtained satisfaction of the debt from the judgment debtor.

The circuit judge entertained this defence, and referred the matter to a jury, who, in effect, found in favor of the defendant.

This proceeding was wholly unwarranted. The statute, in imperative terms, provides, that if any sheriff fail to make due and proper return of an execution issued from any court of record in this State, to him directed, and received by him, he and his sureties shall be liable to a motion in the circuit court of the county from which the execution issued; and judgment shall be rendered against them for the amount due upon the execution, or for the amount collected by the officer, with interest thereon, together with twelve and-a-half per cent, damages; act of 1835, ch. 19, sec. 6.

Under the peremptory and unqualified provisions of this statute, it is very clear, that payment or satisfaction of the judgment (upon which execution had issued and been placed in the hands of the sheriff) by' the judgment debtor to the plaintiff, even prior to the return day of the execution, would constitute no excuse for' the failure of the sheriff to make return of the execution. Much less would such payment, or satisfaction, subsequent to the return day of the execution, constitute an excuse for the non-return of the execution. The proposition that the sheriff’s official default may be excused by the act of the parties to the judgment, subsequent to such default, is so obviously untenable, not to say absurd, as to require only to be stated.

If the fact of payment, after the return day of the execution, as insisted upon in this case, were satisfactorily established, (which, however, from the testimony in the record before us, we are not prepared to admit) it is very clear that the sheriff has no remedy, either at law or in equity.

In the supposed case, of payment before the return day of the execution, a return of the fact by the sheriff, according to the truth of the case, would perhaps be deemed a sufficient excuse for his non-execution of the pi'ocess.

The judgment of the circuit court will be reversed, and judgment rendered here against the defendant.  