
    Fondrin et als. vs. Planters’ Bank.
    Where a Sheriff received an execution a few weeks before his term of service expired; It is held, that unless he had made a levy before the expiration of his term, ho had no power to act on it afterwards, and that his sureties would not be liable for a non-return of it»
    In March 1844, Fondrin was elected Sheriff of Lawrence county. In February 1846, the Planters’ Bank recovered a judgment for $365 against Stribbling and others; a fi. fa. was issued on the 25th of February, 1846, and on the same day was placed in the hands' of Fondrin for collection. Fondrin’s term of service expired on the 1st Saturday in March, 1846. The fi. fa. was returnable in June succeeding. Fondrin made no return of the fi. fa., and after the return day in June, it was seen in a tavern-house at the county seat of Lawrence, with an endorsement on it of the reception of $100.
    On these facts, a motion was made against said Sheriff and his sureties for the non-return of the fi. fa., and Scott, the presiding Judge, rendered a judgment against him and his sureties for the amount of the fi. fa.
    
    From this judgment the defendants appealed in error to the Supreme Coart.
    
    
      It. Houston, for the plaintiff in Error.
    1. The securities of Fondrin are not liable or responsible for the non-retitrn of the execution; because it was not to be returned until June, 1846 — some three months after Fondrin was out of office and another was elected in his place. 3 Hump. 398, 3 do 419.
    2. It was probably the duty of Fondrin to hand over the execution to his successor, but there is no statute, authorising a judgment against the securities of an old sheriff, because he fails to deliver to his successor the unexecuted process in his hands, at the time he goes out of office. But the judgment is not based upon the fact, that the execution was not handed over to his successor, and so far as we know, judging from the facts in the record, he may have handed it over to his successor.
    3. It is also insisted that Fondrin’s securities are not responsible for the $100, which were proved to have been credited on the execution in the handwriting of Fondrin. “In summary proceedings, the judgment must set forth the existence of a state of facts authorizing the exercise of the jurisdiction in the rendition of such judgment.” There is no presumption in favor of the validity of the judgment. But if there are,any presumptions', either way, they are against its regularity and Validity. The statutes authorizing the summary proceedings must be strictly followed and the cases arising under them, must be fully and clearly made out by the facts and set forth in the judgment. Now, in this case, it appears that the execution came to Fondrin’s hands on the 25th of February, 1846, and that he went out of officé in about ten days afterwards. ’ If we aire right in the first of this brief, then the securities were not liable for any action which Fondrin might take with the execution after he went out of office, and the question then comes to this, were the $100 collected by Fondrin on the execution, before or after he went out of office? There is no proof at all in the record, on this point and the judgment on its face does not show that the $100 were collected within the ten days above specified. But the proof must show, affirmatively, that the $100 were collected within the ten days or before Fondrin went out of office, and the same facts must appear on the face of the judgment — and as they do not thus exist or appear, the judgment rendered in the Circuit Court as to the securities of Fondrin, at least, ought to be reversed.
    
      Neil S. Brown, for defendant in Error.
    This is a motion against an out-going sheriff and his securities, for not returning an execution which came to his hands before his term of office expired.
    1st. It was as much the duty of the sheriff to make return of the fi-fa. before, or to the return term, as if his term of office overreached that term. When he received it, he had full power over it as sheriff, and he then became bound, under the condition of his bond, and the only question is, did he make return. The proof is clear he did not. But it is insisted, that as his office expired before the return term, he'could not commit the .default complained of — that he- was- functus officio, and therefore not liable. If there were any thing in the point the answer is, that he should have ipade return before his time ex,pired, and not having done so,,.h?. has 'not complied with his .bond and is guilty of the default?-': '
    2d. It would follow, that if a'default such as this, cannot be reached, as in the case of a continuing sheriff, that it could not be reached at all for the mere peAonal responsibility of the sheriff alone in an action at common law, would often afford a very slender security. It would not, be questioned, I suppose, but the sheriff and his securities, in this case, would be liable for monies collected by him, and no ground of difference is perceived, between the two sorts o'f liability, both being statutory, and subject in the same way.
    The proof also shows, the collection in this case, of one hundred dollars on the execution, before the term of office had expired, which might be held to bring the sheriff and securities, within the act of 1811, ch. 49, sec. 1. See Todd vs. Jaclcson and securities, 3d Humph., 398. .
   Turley, J.

delivered the opinion of the court.

The Planters Bank of Tennessee, moved for and obtained a judgment against John Fondrin," former Sheriff of Lawrence county, and his sureties, for the non-return of an execution issued, from the Circuit Court of Lawrerice, on the 25th day of February 1846, in behalf of the Planters Bank against John B. Stribbling, Thomas A. Deavenport. and Ebenezer Dotson, which came to the hands of the-.Sheriff Fondrin, on the same day it issued and which had never been returned.

It appears that the time for which Fondrin had been elected Sheriff of Lawrence county, expired a few weeks after his reception of the execution, and a considerable time before it was returnable, and that another was elected in his stead; it was proven that after Fondrin ceased to be Sheriff .of the county, the execution was seen in a tavern- house in Lawrenceburgh with an endorsement on it, in the handwriting of Fondrin, that he had collected one hundred dollars thereon.

The circuit judge gave judgment against Fondrin and his sureties for the non-return of the execution: in this we think there is error. Fondrin’s term of service having expired within a short period of his reception of the execution, he had no power to act under it unless he had taken steps by a levy before he ceased to be Sheriff, and it was his duty, in case he had not, to hand over the execution to his successor in office.

There is nothing from which it appears that he had began the execution of the process, before the expiration of his office, and nothing showing whether he received the hundred dollars which were seen credited on the execution -before or after the expiration of his term of service. Under these circumstances, we think there was not sufficient proof upon which to render a judgment by motion for a non-return of the execution.

Let the judgment be reversed.  