18 Ala. 645 | Ala. | 1851
The declaration alleges that the execution was returnable according to the statute, which means, if it means any thing, that, on its face, it was made returnable to the term to which it should have been returnable, according to the Statute. But on its face it was returnable at a different time, and, therefore, it did not agree with the allegation and should have been rejected. — 5 Wend. 276.
2. As Cleaver received the money after the time when the execution was made returnable on its face, but before the lime when it should have been made returnable, the question is, are his sureties liable?
Marsh, as the agent of the Branch Bank of the State of Alabama at Mobile, under the act of 1843, (Clay’s Dig. 11S, § 86,) appointed Cleaver as his deputy, and this action was brought against the plaintiffs in error as Cleaver’s sureties, for the faithful performance of his duties. In respect of the execution of all process, Marsh’s powers and duties under the act, were the same as those of a sheriff: and the relation between him and 7 / Cleaver, as his deputy, was consequently similar to the relation between a sheriff and his deputy. The execution issued from the Circuit Court of Mobile county, in June 1844, and was placed in the hands of Cleaver. The clause in the execution which required a return is in this language: “That you have said sums before the judge of our said court, on the second Monday1 after the fourth Monday of October, A. P. 1844, to render unto1 the said Branch Bank the amount of debt and cost aforesaid, and have you then and there this writ.” By an act approved 16th January 1844, the fall terms of the Circuit Courts for Mobile county were to be holden on the fourth Monday after the fourth Monday in October, in each year. Under the géneral statute the execution should have been made returnable to that term. Cleaver received the money from the defendants in the execution on the 13th day of November 1S44. This was after the execution was returnable upon its face, but it was before the time1 when it should have been returnable under the general statute. If Cleaver’s authority under the execution ceased from the time when it was made1 returnable, on its face, then his sureties were not liable. — Burton v. Lockhart, 2 S. & Port. 109. And it is our opinion that the-execution, in respect of the period between the times when it.was and when it should
In Shirly v. Wright, Holt, C. J., observed, “ if a'writ of execution bear test out of term, the sheriff is justifiable,-and yet shall not be liable for an escape, for it is a void writ.” If it is a void writ, why is the sheriff not liable if he acts under it? • In Parsons v. Loyd, 3 Wilson’s Rep. 341, Lord Chief Justice De Gray answers this question thus: “ Parsons, the nor plaintiff, has been illegally imprisoned under the Color of a writ sued out against him, which is amere nullity; he has been unlawfully injured, and must' have aremedy;- but;he has none, ■against the
Let the judgment be reversed, and the cause remanded.
I cannot concur in the opinion delivered in this case. The execution was amendable, and if amended, the money received by the bank agent would have bee i a satisfaction of the judgment; and for that reason, I think the money was collected officially, and that its non-payment was a