Fergus v. Ball

11 Ky. 197, 1 Litt. 197, 1822 Ky. LEXIS 71

• Court: Court of Appeals of Kentucky
• Decided: June 6, 1822
• Status: Published

Opinion

Opinion of the Court.

THIS is an appeal from a judgment rendered against Fergus, on a motion made by Ball against him, for failing to return an execution, which was delivered to his deputy for collection, for the space of one month after the return day. By the notice which was given to Fergus, he was informed that a motion would be made on the third day of the court, for a judgment against him as late sheriff, for the amount of an execution, and thirty per centum damages thereon, which issued on the 3d day of March 1820, from the clerk’s office of the Cumberland circuit court, on a judgment obtained in said court in the name of Ball, for two hundred and fifty dollars debt, with interest from the 18th of August 1818, until paid, and seven dollars twenty-nine and a half cents costs, and which execution was made returnable to the May rules, to wit, the first Saturday succeeding the second Monday in May 1820, and was put into the hands of his deputy, Lemuel Stockton, to execute and return ; but which said execution was not returned by the said Fergus, his said deputy, Stockton, nor any person for them, within one month from the return day, or at any time since, &c.

Notice of an intended motion against a sheriff, for failing to return an execution, is sufficiently certain, if it describe the execution, without mentioning any credits which may be endorsed on it.

On the trial of the motion, an execution, corresponding in every respect with that described in the notice, was produced in evidence, and it was proved to have been delivered to Stockton, the acting deputy of Fergus, in due time, and was not returned to the office from whence it issued, until after the expiration of more than one month after the return day. But there is endorsed on the execution a credit for one hundred and five dollars, paid the 15th of September 1818 ; and it is objected, that no judgment should have been rendered against Fergus, in consequence of the notice having failed to mention the credit.

The objection is taken on the supposition of the credit upon the execution constituting an essential variance between the proof and notice and on account of that variance, it is urged, no judgment should have been rendered against Fergus, the sheriff.

1. It is, however, apparent, that the court below treated the credit properly, in not supposing it formed matter sufficient to authorise a dismissal of the motion, but as furnishing evidence in mitigation of the amount to be recovered against the sheriff. The object of the notice, is barely to inform the sheriff of the execution delivered to his deputy, and which had not been returned, to enable him to defend the motion about to be made against him ; and although the notice contains no suggestion of the credit endorsed on the execution, it is impossible that the sheriff could attend to the description contained in the notice, and not know that the execution given in evidence was the one, for the failure to return which, the motion was about to be made against him.

The judgment must be affirmed with costs and damages.