Haden v. Walker

5 Ala. 86 | Ala. | 1843

COLLIER, C. J.

1. It has been so often adjudged, as to have become a settled principle, if the sheriff take goods in execution under a fieri facias, of sufficient value to satisfy the same, the debtor is discharged from all liability to satisfy the judgment; and this whether the goods be sold or not; but the sheriff’becomes responsible to the creditor in virtue of the seizure. The reason, so far as the debtor is concerned, is, that he has been deprived of his property. Webb v. Bumpass, [9 Porter’s Rep. 201,] declares this to be the law, and states further, where the goods levied on, are removed by the defendant, or by his permission or connivance, so that they cannot be sold under the execution, or under a venditioni exponas, such a result will not follow.

In the case before us, the inference, in the absence of any direct evidence to the point, would be, that the slaves levied on, if removed from the possession of the defendant in execution, were returned to him. This seems to us to be but a reasonable conclusion from the proof, that the judgment was assigned to Joice, with the defendant’s assent, and that no further proceedings were had on the execution. If a sale v/as coerced, or the slaves retained, he of course would not have consented to the assignment; in fact, the retention by the sheriff; would have amounted to a satisfaction of the judgment, and there would have been nothing to assign. Besides; it may well be questioned, whether the assent of the defendants to the purchase of the judgment by Joice does not estop them, from insisting upon its'discharge by any thing previously done by the sheriff, and impose on them the task,if desired, of re-possessing themselves of the slaves taken under the execution. The principle we have stated, will not apply so as to' discharge the judgment against the debtor to a greater extent where the goods are restored to him by his own consent, than where they are obtained by a wrongful act; and the case of Hunt v. Breading, [12 Serg. & 11. 37,] which has been cited for the plaintiffs in error, does not maintain a contrary doctrine.

2. That judgments may be assigned, so as to transfer to the assignee an equitable interest, and authorise him to sue an execution thereon in the plaintiff’s name for his benefit, has not, nor indeed can be, successfully questioned. The facts stated in the record, very satisfactorily show, that the judgment was regularly assigned; in fact, that unusual care was taken to perfect the arrangement; for it seems to have had the assent of both parties, and to have been intended to substitute Joice to all the rights and remedies of the plaintiff. Whether the object of the assignee was really to aid the defendants, we have no means of judging, nor 'do we think it very important; for so far as the record imparts information, he has obtained a security for Ms money, which the law will protect. It is needless to consider the powers of an attorney at law, since the transaction we are examining received the sanction of the client.

3 and 4. In Harkins v. Clemens, [1 Porters Rep. 30,] it appears that the sheriff returned a fieri facias “ satisfied,” and the clerk issued an alias; and the question was, whether the clerk had authority to issue the second until the return upon the first fi. fa. was modified by leave of Court — It was held, that if there was a mistake in the return, and the greater part of the judgment was unpaid, still, the clerk could not regularly issue another execution when full satisfaction had been returned on the first; and that the action of the Court was necessary to authorize it. Several of the cases cited for the plaintiffs in error, show such to be the law, but it is unnecessary to notice them particularly, as the decision of our own court is directly in point.

The return made by the sheriff, on the execution issued re- - fumable to the spring term of 1841, does not literally pursue either of the forms furnished by the act of 1807, yet it states, in effect, either that the defendants had paid or adjusted the execution to the satisfaction of the plaintiff or his attorney, or both of them; and that the costs and commissions had been paid to the sheriff. The fair inference from all this is, that the execution had been satisfied not only as to costs and commissions, but also as to the damages directed to be made. How the damages had been settled, whether by a cash payment, or in some other way, does not appear; be tMs as it may, the return is sufficiently potent to have arrested all subsequent executions until the Court had authorised them to issue.

In respect to mésne process it has been held, that the sheriff is not confined to the statute form in making his return, but Ms in-dorsement upon a writ, that the defendant had acknowledged service, was sufficient to bring the party into Court, though the statute requires that a copy of the process shall be left with the defendant. [Rowan v. Wallace, Judge, &c. 7 Porter’s Rep. 171.] No reason occurs to us for the application of a rule less latitudi-nous in the execution of final process; the more especially as in both cases the sheriff is subjected to severe inflictions, either for a false return, or the arrogation of power.

It results from the view taken, that it was competent for the Circuit Court to have permitted the sheriff to amend Ms return according to the truth of the case, but the executions issuing subsequent to the spring term of 1841, were voidable at least, and should have been quashed. The consequence is, that the judgment upon the motion to quash, is reversed, and the cause remanded.