delivered the opinion of the Court.

This was a motion by Rubey against; Flourney as the Sheriff of Scott, for the failure of his deputy to return a fieri facias, which had issued in favor of Rubey vs. Winer, and had been delivered to the' deputy.

The notice and its service are sufficient. And the proof is satisfactory to shew the delinquency charged in the notice. The circuit court therefore, gave judgment against Flournoy for the amount of the execution, and 30 per cent damages. He has appealed to this court; and we will be constrained to reverse the judgment; becau se there was no proof that the individual to whom" the execution was delivered, was the' deputy of Flour*561üdy. The authority of the cases of Slaughter vs. Barnes, 3 Mar. 412, and Poague vs. Calvier, 5 Litt. 233; is deoisive of this point.

The judgment is therefore, reversed and the cause remanded, for another trial on such evidence as may as may be again adduced by either party.