
    THE BANK v. THE SHERIFF OF SEVIER COUNTY ET AL.
    (S. C., Thomp. Cas., 40-41.)
    Knoxville,
    September Term, 1849.
    1. SERIFF’S RETURN.. Insufficient on execution, wlien.
    Where the sheriff’s return shows that the property levied on was not sufficient to satisfy the execution, and fails to show why a further levy was not made, the return is clearly insufficient. [The return must he sufficient on its face. Bank v. Barnes, 10 Hum., 244. As to the sufficiency of the return, see Shannon’s Code, sec. 5359(2), and notes 12-25.]
    2. SAME. Same. Motion for, judgment in supreme court.
    On motion for such insufficient return to an execution, on appeal to the supreme court, and reversal by that court, it will render such judgment as the court below should have rendered. [Bank v. Barnes, 10 Hum., 246; Code, sec. 4902.]
    3. SUPREME COURT PRACTICE. Exceptions must be taken below
    Where no exception was taken below that the sheriff’s bond in such case was not certified to have been recorded, none can be taken in the supreme court.
    This was a motion against the sheriff of Sevier county for an insufficient return to an execution. Judgment below was refused, and the plaintiff appealed to- this, court. The return showed that the sheriff had levied on certain property and taken a delivery bond. From the face of the bond, it appeared that the property levied on was not of sufficient value, to satisfy the judgment, and the return failed to show why a further levy was not made.
   McKinney, J.:

This return is clearly insufficient. But it is objected here that the sheriff’s bond produced below was merely certified by the clerk to be a true copy, without showing that it, had ever been recorded. No exception on this point having been taken below, none can be here. In the cases where the failure to record has been held fatal, the fact was directly in issue and appeared affirmatively. The judgment below will be reversed, and the court here proceeding to render such judgment as the court below should have rendered, will give judgment against the sheriff and his sureties for the amount of the execution.

Judgment reversed.  