delivered the opinion of the court.
Motion against the sheriff of Lincoln County for failure to-return a fieri facias issued from and returnable to the Circuit-Court of Madison County.
The application for a change of venue was properly denied. 'These motions are determinable in the court to which the process is returnable, and not in the county of the residence of' the defaulting officer. Code 1871, sect. 227.
The pleas filed by the defendant set up, in different shapes, that the plaintiff was not damnified by the failure to return the-execution, because of the insolvency of the judgment-debtor, and for other reasons.
Demurrers were properly sustained to them. The penalty *485denounced against an officer for failing to return final process, by sect. 227 of the Code, is strictly in the nature of a penalty to be inflicted upon him for neglect of duty, and, while it inures to the benefit of the plaintiff in execution, is in no manner dependent upon any actual damage sustained, as is well settled by the former adjudications of this court. Steen v. Briggs, 3 Smed. & M. 326; Morehead v. Holliday, 1 Smed. & M. 625; Beall v. Shattuck, 53 Miss. 358.
The case of Josiah Dailey v. The State (ante, p, 475), relied on by plaintiff in error, was not a motion, under sect. 227 of the Code, for the recovery of the statutory penalty, but a common-law action for damages, brought on the sheriff’s bond, .after his retirement from office. In such a s,uit, of course, a recovery could be defeated by showing that, in point of fact, no damage had been sustained. We do not mean to say that there may not be some circumstances, such as physical impossibility to return the writ, or the act of God, or the like, which will defeat a motion for the statutory penalty, but only that no such facts are pleaded here, and that absence of actual damage to the plaintiff will not have that effect.
The absence from the sheriff’s bon’d of one of the conditions prescribed for such instruments by sect. 219 of the Code was immaterial. The conditions which were contained in it were ample to bind the sureties for the default here complained of. The bond was in literal compliance with the form prescribed by sect. 309 of the Code; and even if it had not been, by the ■express terms of said section it would have been perfectly •“ valid and binding.” The meaning of the section is, not, as ■counsel argue, that it shall be good, in the absence of the prescribed form, as a common-law obligation, but that it shall be valid and binding as a statutory bond, and entitle parties protected by it to invoke all the remedies pointed out by the law-giver.
Upon the trial of the motion, plaintiff below contented himself with the introduction in evidence of the writ of fieri facias, without producing the judgment upon which it was *486based. The attention of the court below does not seem to have been called to the question of whether it was incumbent on the plaintiff to produce the judgment, save in the motion for a new trial, upon the ground that the finding and judgment “ was wrong upon its merits ; ” but, as it is a question of the sufficiency of evidence to support the finding, it was competent to raise it in that manner, and we must consider it.
It is well settled that, in actions against an officer for a false return, the plaintiff cannot recover without alleging and proving a valid judgment, and the rule seems to be the same in the common-law actions for a failure to return, though upon the" latter point the authorities are more meagre and less decisive. 3 Denio, 45; 2 Greenl. on Ev., sect. 592 y 2 Chitty’s Pl. 748; 3 Stark, on Ev., sect. 1344; 7 Hill,. 35; 5 Vt. 124; 13 Ired. 26; 16 Ohio, 52; 9 Wend. 233. Whether the same rule should be applied to statutory motions for penalties, the recovery of which, as we have seen, depends in no manner upon the question of damage to the plaintiff, is left untouched by the authorities, so far as we have found, except that the affirmative seems to have been assumed in Moore v. McClief, 16 Ohio St. 52.
Undoubtedly the officer could defeat a recovery by showing-the invalidity of the judgment, or that there was no judgment ; and we incline to think that the safer rule will be to impose upon the plaintiff the burden of producing the judgment. Certainly there can be no hardship in such a rule,, since he is allowed to bring the officer from a distant part of the State to litigate in the court where the judgment has been recovered, and where it can without difficulty be produced.
An execution without a judgment is a nullity, and may be wholly disregarded. It would seem, therefore, that he wlu> seeks to make the officer liable for neglecting the writ, should be required to show that there was authority for its issuance,, especially where, without alleging or proving that he has-been in any manner damnified, he invokes against the officer a. *487statute .so peremptory, so harsh, and so highly penal as the one under consideration.
The statute declares that when the sheriff shall have paid the judgment it shall by operation of law be transferred to him. It would seem that the plaintiff should be required to show that there is an existent, valid judgment, which will, upon payment, be transferred.
Certainly in this case the duty of proving the judgment devolved upon the plaintiff, who, in his motion, — which is quite inartificially drawn, — counted upon the judgment, and not upon the execution. There is no recital of the contents of the latter, or of its reception by the sheriff. The motion is for the amount of the judgment, “ because of the failure of said sheriff to return the said fieri facias issued upon said judgment, and to him directed.” This is the only allusion in the motion to the fieri facias, and there is no other recitation than this of any default of the sheriff in connection with it. Having counted upon the judgment, it was certainly obligatory upon the plaintiff to produce it.
Judgment reversed.
Campbell, J.:I doubt as to the requirement to produce the judgment in a motion against a sheriff for failure to return an execution.