3 Ala. 299 | Ala. | 1842
It is insisted for the plaintiff in error, that notwithstanding the act of 1821, makes it the duty of sheriffs, “ to return all writs and executions to the clerk’s office from which they shall issue, at least three days previously to the term of the Court to which they shall be returnable,” yet a payment to the sheriff on the first day of the term to which an execution is returnable, and while the saméis in his hands, will be .regarded as made thereon, and subject the sheriff and his surety to a motion and judgment for not paying over the money to the plaintiff. If the point made by the plaintiff, was res integra in this Court, we should be inclined to accord to the argument, great weight, and perhaps be constrained to admit its justness. But there are several cases adjudicated by our predecessors, which have been tqo long acted on to authorise us to treat the question now raised, as open for consideration, and our duty may be sufficiently discharged by a brief review of the cases.
In Neale, et al. v. Caldwell, 3 Stew. Rep. 134, which was a proceeding by motion, against a sheriff and his surities, for the failure to return an execution within the time prescribed by law, the defendants attempted to show in their defence, and as an excuse for not returning the execution, that the same had been levied, and was retained until after the sale of the property, which took place on the first day of the term of the Court to which it was returnable, and that on the next day, it was re-turneu. It was held that the act of 1821, was inoperative, and “ the simple fact to be determined by the Court, was, had the sheriff returned the execution three days before the term, or rendered a sufficient excuse for not doing so.” And further, “the
We might add to these citations, a notice of other cases in which their authority has been recognized, but it is deemed unnecessary to extend this opinion to greater length. The decisions cited, serve to show, that the payment of the amount of the execution to the sheriff, on the first day of the term to which it was returnable, there being no levy ‘previously, cannot be regarded as the satisfaction of the execution, and that the plaintiff’s remedy, is against the sheriff, by action, for money had and received, or against the original defendant, by issuing an alias execution.
Whether the sheriff and his surety could have been pi’oceed-ed against, under the act of 1826, by a suggestion that the money could have been made on the execution by due diligence, is a question about which professional men might differ, and as it is not presented in the case at bar, we leave it to be determined, when it shall arise in judgment.
The judgment of the Circuit Court must be affirmed.