66 Ala. 211 | Ala. | 1880
The present suit is against the sureties of McEarlane, on his official bond as register of the Chancery Court. The bond was executed and approved August 13th, 1857, and recited that McFarlane had been appointed register of said court. As the law then stood, registers held office for
We have stated token Mr. McFarlane entered upon his office — August 13th, 1857 — and when the term covered by that bond expired — August 13th, 1861. During that term, probably in 1859, Mr. McFarlane, acting for the judge of probate, granted an order to sell some slaves for partition among several owners, and appointed commissioners to make the sale. The sale was made by the commissioners. These proceedings were had under chapter 7, title %, part 3, of the Code
A suit was brought by McKee,-against one of the tenants in common, in 1859, and McFarlane,- as register, was then summoned as a garnishee. The purpose was to reach and condemn the defendant’s interest in the proceeds of the property, which had been sold for partition. The property, except 5 per cent, cash, had been sold on credit, bonds with surety taken to secure the purchase-money, and the money and bonds were in the hands of the commissioners when the garnishment was served. August, 1861 (probably on the 3d day), the commissioners, having collected a part of the money due on the bonds, reported their sale and proceedings to McFarlane, register, and then paid over to him the money in their hands, about eight hundred dollars. McKee prosecuted his suit against the defendant, one of the tenants in common, and obtained judgment against him. McFarlane failed to answer as garnishee ; judgment by default was taken against him, and it was made final. Execution was issued on each of these judgments, and returned no property found.
At the time the mouey was paid to McFarlane (August 3d, 1861), there was no statute authorizing the commissioners, appointed to sell property for partition, to pay the proceeds to the judge of probate. Nor was there such statute, during the term covered by the official bond sued on in this action. True, - on the 11th November, 1861, an act was approved, explanatory of the act of February 5th, 1856, which authorized the commissioners to “discharge themselves from all liability, for moneys received by them for property sold under said act, by paying over the same into the hands of the judge of probate.” — Pamph. Acts, 55; Code of 1876, § 3519. This, however, could not retroact, and make that an official act, which at the time of its doing was a private deposit, unauthorized by any law.
There are other grave questions which might be discussed in this case, but what we have said above renders their dis.-=
The judgment is affirmed.