Waring v. Thomas

Opinion of the Court. THIS was a motion made by Waring, to recover of Thomas, late sheriff of Woodford county, the amount of an execution, and thirty per centum damages thereon, which was put into the hands of William Cosby, the deputy of Thomas, for collection ; but which execution was not returned to the office of the clerk from whence it issued, within one month from the return day. After hearing the evidence introduced by the parties on the trial, the court dismissed the motion with costs ; and we apprehend, correctly. The evidence was, no doubt, sufficient to show, that the execution was not returned within a month from the return day, and if no good cause for the failure to make the return had been proved, judgment should have been rendered against Thomas. But it was proved, that the execution was mislaid, and after the [254] most careful search, could not be found, until after the lapse of one month from the return day ; and if, in point of fact, the execution could not be found, the loss of it formed a good excuse to the officer for failing to return it; and it is only where there is a failure to return an execution for one month after the return day, without a good excuse for the failure, that the officer is subjected to the payment of the amount of the execution and thirty per centum damages. It is true, the excuse of Thomas for not returning the execution, was proved by no other person than Cosby, to whom the execution was delivered for collection; but as there was no objection to the evidence of Cosby in the circuit court, we must presume it competent, and there is nothing in the cause calculated to render the facts proved by Cosby, either incredible or improbable. The judgment must be affirmed with costs.