GOLDTHWAXTE, J.-
1. Our statutes give a .summary remedy against sheriffs and their sureties, for failing to return executions, for failing to make the money when by the use of due diligence it may be made, and for failing, after demand, to pay over money collected. In the last case, a penalty is imposed of five per cent, per month, on the sum collected, for each month the sheriff may continue in default, after the demand. It is obvious this penalty should be recovered only in cases where the money is actually collected, as there are ample remedies for the mere neglect of duty in other respects. In the present case, it seems a return was made, from which the inference could be drawn, that the price for which the land was sold was paid to the sheriff, and so long as this remained, we may concede it was conclusive on the sheriff; but the court allowed an amendment to be made during the trial, in accordance with the fact then established, that is, that no money in point of fact was paid by the purchaser. It is true, this amendment of the return was resisted by the plaintiff, but certainly the court was not deprived of its power in this respect, by the circumstance that a suit was in progress against the sheriff. This might induce the imposition of terms, such as satisfaction for the actual default of the sheriff, in not making the money, or the payment of the costs of the suit then in progress, or a consent that the plaintiff should shape his motion for the default in not making the money, or indeed any other conditions to advance the ends of justice, but the amendment when made was, to all intents and purposes as if in that form in the first instance. [2 Stew. 255" court="Ala." date_filed="1830-01-15" href="https://app.midpage.ai/document/brandon-v-snows-6531458?utm_source=webapp" opinion_id="6531458">2 Stew. 255; 4 Ala. R. 334.]
2. The return being out of the case, it rested with the sheriff’s promise to pay the plaintiff the sum for which the land was sold, in connection with the previous default of the sheriff. We say in connection with the previous default, for we apprehend a mere naked promise, without some previous liability, would not be sufficient to sustain an action in this, *681more than any other case. What then was the default to which the promise was referable ? Certainly not the omission to pay over money which the sheriff had collected, but to money which the officer was liable to pay for his omission to make the proceeds of the lands by the use of due diligence. If the motion was for that particular default, it is highly probable the party would not be allowed to show his liability in another mode to prevent a recovery in that. The case of Cook v. Bloodgood, 7 Ala. 683" court="Ala." date_filed="1845-01-15" href="https://app.midpage.ai/document/cook-v-bloodgood-6502495?utm_source=webapp" opinion_id="6502495">7 Ala. Rep. 683, is an illustration of the doctrine of estoppel, arising from declarations inducing the plaintiff to sue in a particular mode. There a law partnership received certain notes of one of the partners from the sheriff in discharge of an execution which the officer returned satisfied, and for which the receipt of the firm was given. This receipt was held to conclude both partners, and that although the mode of payment was not within the scope of the partnership, yet the injured partner could not. set this up to defeat a suit of the client for money had and received. All the cases of this class — see them collected in. Cowen & Hill’s Notes, 205 — seem to rest upon the principle, that when the plaintiff has a right of action against some one, or in some mode; and when a suit is induced by the declarations of the defendant, he will not afterwards be permitted to ^defeat an action rightfully instituted by showing that some other person is liable, or himself in some other mode. In this case the promise to pay did not, nor could induce this particular action, as in this form it rests on the fact, that money has been collected. The promise as we have seen, refers.itself to the default in not collecting the money.
In this view it is clear the court should have given the charge which the defendant requested, and erred in that on which the cause was submitted to the jury.
We omit to notice the point made with relation to the supposed defect of the judgment against the sureties, as it is unnecessary from the conclusion on the other points.
Judgment reversed and cause remanded.