¶1delivered the opinion of the court.
¶2Upon a motion, in the circuit court, by Smelzer against E. Daniel, late sheriff of Pendleton county, and his sureties, for failing to return an execution in favor of Smelzer, against W. R. Hand and J. Henson, for one month after the return day thereof; judgment was entered against them, for ,§‘245, being the amount of the principal, interest and costs expressed in said execution; and for §70, being the 30 per centum damages thereon. Upon the motion and affidavit of Daniel, the judgment was set aside, and anew trial granted, to which Smelzer excepted.
¶3At a subsequent term, the cause was again tried, and asimilar judgment entered, from which Daniel, &c. appealed; having spread the whole of the evidence on record. Each judgment was fully warranted by the proof; but had it eveu been deficient on the second trial, the appellants could not have succeeded in their appeal, as we are of opinion that the first judgment was improperly set aside. Had they succeeded in defeating the appellee, on the second trial, upon a writ of error, by Smelzer, it would have been reversed.
¶4The judgment must he affirmed, with costs.