
    Benson vs. Porter.
    Chancery. The Chancery court has jurisdiction to render judgment on motion against a sheriff for failing to return an execution under act of 1803, c 18, § lv Construction of statutes upon that subject. 1787, c 2, $2; 1809, c 49; 1811 C 72, §4; 1813, c78, $3; 1827, c 79,’ $2, 3; Í835, c 19, $ 6, — c 3, $ 2,-5 4, §4, 13, — c 6.
    The record in this- case consisted alone of the following entry upon the minutes of the chancery court at Columbia, at September term, 1837.
    “September 22d,, 1837. Syhumus E. Benson, Samuel Hunt, and John Patterson vs. Jfimrod Porter.
    
    The execution docket of this court having been produced in open court, by the clerk of this court, and it appearing to the court from the entry of the clerk made on said docket as follows, to wit: “Execution issued May the 15th, 1837, to Maury county, and delivered to N. Porter, sheriff.” And from the testimony of the clerk and master of this court, who was qualified as a witness in this cause, said entry appearing to be in his handwriting; and that on the 15th day of May, 1837, he, the said clerk and master, issued a writ of fieri facias, on a decree of this court, entered upon the 7th day of April, 1837, for the sum of two hundred and sixty-four dollars and twenty-five cents debt, and the sum of twenty dollars interest thereon, from the rendition of the judgment at law to the entering up of said decree; and the further sum of seven dollars and nine and one half cents, costs of the suit at law, in the case in which Richard G. Looney is complainant, and Sylvanus E. Benson, Samuel Hunt, and John Patterson are defendants; and delivered the same to Nimrod Porter, Sheriff of Maury county, on the 15th day of May, 1837, to be executed.
    And it further appearing to the court, from the testimony of the clerk and master of said court, that said Nimrod Porter, sheriff, has not returned said writ of fieri facias to the present term of this court, to which it was returnable, as by law he was bound to do, and no return thereof being made yet, and this being the fifth day of the term* and the last day thereof.
    
      It is therefore on motion of said complainants adjudged, and decreed by the court, that the complainants recover of said Nimrod Porter, the said sum of two hundred and eighty four dollars, and twenty-five cents, the amount of the decree aforesaid, together with the further sum of seven dollars and nine and one-half cents, costs of the suit at law, embraced in said decree; whereupon, upon motion of said complainants, it is further considered by the court, that complainants recover of said Nimrod Porter, the.further sum of thirty-five dollars and fifty-three cents, damages thereon, at the rate of twelve and one half per cent, on the- amount of the principal amount of said decree, so recovered as aforesaid, and that execution issue for the same as at law, to the Coronor of Maury county.
    Whereupon the defendant prays an appeal in the nature of a writ of error to the next term of the supreme court of errors and appeals.”
    No counsel appeared for the plaintiff in error.
    Pillow, for the defendant in error,
    submitted the case to the court.
   R. C. Foster, Special Judge,

delivered the opinion of the court.

Upon the 22d day of September, 1837, being the last day of the term of the chancery court, at Columbia, Benson, Hunt & Patterson recovered a judgment on motion against the plaintiff in error, Porter, sheriff of Maury county, for the money and costs of suit mentioned in an execution, which issued from the March Term, 1837, of said chancery court, in favor of the defendants in error, Benson, Hunt & Co., against Looney, upon a final decree, rendered in the chancery court, which execution came into the hands of the said Porter, sheriff, upon 15th May, 1837, but was not returned as directed by the act of 1803, c 18, § 1.

From the judgment so rendered, Porter prosecuted an appeal in the nature of a writ of error, to this court, and the question made in argument, and submitted for the decision of this court, is, had the chancellor power and jurisdiction to render such judgment?

By (he second section of the act of (1787, c 22, in all cases where decrees may have been made in equity in any of the courts in this state, or may thereafter be made, the writ of execution against the body, as well as the property of the defendant is given in the same manner, as in the courts of law.

Upon the decree rendered by the chancellor at the March Term, 1837, in favor of said Benson, Hunt & Co. against Looney, the -execution was lawfully issued, and when placed in the hands of the sheriff, subjected him to the same duties and responsibilities, as if issued from a court of law. By the act of 1803, c 18, § 1, if any sheriff shall fail to make return of any execution that shall come to his hands, issuing from the clerk of the county or clerk of the district court on or before the second day of the term, to which said execution is made returnable, judgment may be rendered against such sheriff for the amount of money and cost of said execution.

At the passage of the acts of 1787 and 1803, the judges of the then superior court possessed and exercised, in the character of judges and chancellors, all legal and equitable jurisdiction, not conferred upon the county court; the state being divided into three judicial districts in which the courts were held. If, after the passage of the act of 1803, an execution had been issued upon a final decree rendered, by a judge of that court, whilst sitting as chancellor, and placed in the hands of the sheriff, and he failed to return it as by the law directed, — that the sheriff would be liable to judgment in such case, under the act of 1803, none will controvert. But the question recurs, what tribunal would have had the power to render such judgment? We answer, the chancellor, who rendered the decree, and none other; because, by the words of the acts, the execution is made returnable to the term of the court, that rendered the decree, or gave the judgment, from which it issued; and of consequence the court, whether in the character of chancellor or judge, that rendered the decree, or gave the judgment alone, under the act of 1803, could pronounce judgment against the sheriff for such failure.

If, at the passage of the act of 1803, the present chan-eery system had obtained, and the exercise of legal and equitable jurisdiction had been vested then, as now, in different courts, and the court possessing chancery power had given a decree, from which an execution had been issued, and placed in the hands of the sheriff, and which he failed to return, could the complainant in such execution have applied to a judge of common law jurisdiction at a term of his court for a judgment? Certainly not.

By the act of 1809, c 49, the superior court was abolished, and the circuit court system established, with a court of errors and appeals, possessing appellate or other jurisdiction, specified by the act. And by the fourth section of the same act, the circuit judges, in their respective circuits, were invested with original jurisdiction over all matters and causes at common law, or in equity, whereof the superior courts of law and equity then had jurisdiction.

The power to render such a judgment, being at the passage of the' act of 1809, vested in the superior courts, was by the passage of that act, ex vi terminorum, transferred to the judges of the circuit court, whether presiding as chancellors, or as judges of the common law courts.

By the act of 1811, c 72, § 4, the jurisdiction of causes in equity was taken from the circuit courts, and vested exclusively in the court of errors and appeals; and by the seventh section of said act, the court of errors and appeals in exercising such jurisdiction were to be governed by the same rules and regulations and restrictions by which the circuit courts were then governed, and were vested with the same power and authority that the circuit courts then had. The chancery jurisdiction which, by the act of 1811, had been taken from the circuit courts, and vested exclusively in the court of appeals, was, by the act of 1813, c 78, § 3, restored to the circuit courts, which courts from that time until 1827, exercised with the courts of appeal, concurrent chancery jurisdiction with the powers, originally given to the supreme courts.

In 1827, the chancery jurisdiction was taken from the court of appeals, and vested in a distinct and separate chancery court, with all the jurisdiction and authority, that attachr ed to the exercise, of such pow.er jn the previously existing and differently denominated courts; and in which jurisdiction was contained, the authority to render the judgment in the record set forth, and which still continues, unless taken 'away by the act of 1835, c 19, § 6. The caption of that act, is in these words, “an act supplemental to an act, entitled an act to establish circuit courts, passed at the present session of the general assembly.” And the sixth section of said act, provides in substance, so far as it affects the question now under consideration, “that if any officer shall fail to make due and proper return of any execution issued from any court of record in this state, such officer shall be liable to judgment on motion in the circuit court of the county from which the execution issued.

Now does this section of the act of 1835 extend to executions issued from the chancery court, and take from it the jurisdiction to render judgment upon failure of the officer, and transfer that jurisdiction to the circuit court of the county in which the chancery court is held? For if it does, then also, by the same section, is the like jurisdiction taken from this court. That the legislature did not intend to include executions issued from this court, and the chancery court in the sixth section of the act of 1835, c 19, we think apparent. Because, previous to the passage of that act, by the second section of chapter 3, of the act of 1835, the supreme court is invested with such appellate and other jurisdiction, as had been by law, previously conferred on that court; and by the fourth and -thirteenth sections of the act 1835, c 4, the chancellors were vested with all the powers, privileges, and jurisdiction, in all respects, which they then had by the existing laws.

That these respective courts had the power previous to the passage of the above act to render judgment in cases like the one under consideration is well established; and that the legislature at the enactment of these laws, well knew that the supreme and chancery courts, not only possessed, but had frequently ex'ercised such power, we are bound to believe; because, previous to the act of 1835, c 19, the legislature, by the act of 1835, c 6, had abolished the county courts, so far as to hear and determine any pleas, real, personal or mixed, or any causes civil or criminal, wherein a jury trial might be demanded, leaving, them the power still to issue executions from judgments or decrees remaining unsatisfied without the authority to give judgments' upon the failure to return such executions,' and therefore, when the legislature, in the sixth section of the act of 1835, c 19, use the word's, “any execution issuing from any court of record,” for a failure to return which, the officer is liable to judment on motion, in the circuit court of the county, from which the execution issued, we must consider them as referring only to executions issuing from the circuit and county courts.

But if this were not so, still the sixth section of the act of 1835, c 19, does not take from the chancery court the jurisdiction, because the act of 1835, c 4, § 4, 15, giving such jurisdiction to the chancellor is not repealed by the act of 1835, c 19, § 6.

Let the judgment be affirmed.  