¶1delivered the opinion of the court.
¶2In this case, the circuit court.of Coffee county rendered a judgment, against the plaintiff in error, Roberts, as sheriff of Grundy county, and the other plaintiffs in error, his securities, for failing to return an execution that came to his hands.
¶3We are of opinion, that, when an action is given by law. against a party for failing to do an act, it is incumbent on the plaintiff to prove that the act was not performed.
¶4In this case, the only evidence as to the non-return of the execution, is found in the testimony of the clerk of the Coffee circuit court. He says: “That during the early part of the October term of the circuit court of Coffee county, the execution referred to in the notice read by the plaintiff, was *233returned into his office; he could not say that it was, or that it was not, the first day of the term, but recollects that it was early in the term.”
¶5This statement does not prove that the execution was not returned the first day of the term.
¶6The precise period of the' return is left in doubt. The witness is too vague in his recollection, for this court to assume that the return was not made according to law.
¶7Reverse the judgment.