Price v. Cloud

| Ala. | Jan 15, 1844

GOLDTHWAITE, J„

1. It is true, that in this notice there is no averment with l-espcct to the day upon which toe money collected upon this execution was demanded from the sheriff; nor do we think its omission is such 0, defect as can be reached on demurrer. The allegation is,- “which said monies you (the sheriff) have failed to pay over on demand of the plaintiff/’ From this, in connexion with the other averments in the notice, it is evident the demand was made before the notice of the motion, and after the collection of the money, If a demand was alleged on a particular day, the precise day would be immaterial, and proof of a demand within these periods, would be sufficient. The cases of Burton v. Peck, [1 S. & P. 486] and Broughton v, State Bank, [6 Port., 48" court="Ala." date_filed="1837-06-15" href="https://app.midpage.ai/document/broughton-v-president-of-the-bank-6529273?utm_source=webapp" opinion_id="6529273">6 Porter, 48] only require a demand to be specially averred and proved, but neither case has been considered as requiring a precise day to be set out.

2. The two pleas first pleaded, assume that the execution was returned by the sheriff, and may be considered as alleging that a return of satisfaction was made. Without this intendment, they are fatally defective, as presenting no issue whatever, and with it. they are bad, because the return, in its nature, is conducive, so long as it continues on the record. Without undertaking to determine that the sheriff would be allowed to relieve himself-from liability by altering his return, it is certainly conclusive on him, and his sureties, in the absence of fraud or collusion, so long as it remains.

3. The third plea, if pleaded in form by the sheriff, might be considered substantially as a general issue, there being no statement of the return of the execution in the notice; but it is bad as being pleaded by the sureties. In the case of McClure v. Colclough, [5 Ala. 65" court="Ala." date_filed="1843-01-15" href="https://app.midpage.ai/document/mcclure-v-colclough-6501914?utm_source=webapp" opinion_id="6501914">5 Ala. Rep. 65,] (see also, Williamson v. Howell, 4 Ala. 693" court="Ala." date_filed="1843-01-15" href="https://app.midpage.ai/document/williamson-v-howell-6501889?utm_source=webapp" opinion_id="6501889">4 Ala. Rep. 693; Townsend v. Gordon, ib. 607,).we held that our statutes which authorise summary judgments against sureties, without notice to them, or by giving notice to their principal, were intended, and have the effect to make the judgment against the principal conclusive of every matter found by it; and that so long as the principal is alive, and is made a party, the sureties are not entitled to litigate the question of liability, except in the name of the principal. This plea goes to the liability of the principal, and is in the name and on behalf of the sureties; it is bad, therefore, within the cases cited.

4. The evidence of Watkins was properly excluded under the authority of Bibb v. Reed & Hoyt, [3 Ala. 88" court="Ala." date_filed="1841-06-15" href="https://app.midpage.ai/document/bibb-v-reid-6501554?utm_source=webapp" opinion_id="6501554">3 Ala. Rep. 88] as not tending to show that the sureties here retained the intention not to be bound, unless others also executed the bond; and likewise, for the additional reason that the condition of the delivery, if in fact there was any such, was not known or communicated to the person receiving the bond.

5. The evidence of Burt was properly excluded, but for a •wrong reason. The fact offered to be proved by him, would have contradicted the sheriff’s return of satisfaction, which we have before stated, is conclusive upon the sheriff and his sureties, until set aside. We do not understand Bobo v. Johnson, [3 S. & P. 385] as establishing the position contended for, because the question raised there was, whether the plaintiff in execution could be concluded by the illegal act of the sheriff Whether the sureties on a proper shewing could have had the return set aside, and the true facts inquired into, to the prejudice of the plaintiff’s rights, or otherwise, is a question not raised, and which, therefore, we dcclline to consider.

The evidence subsequently offered from the witness Watkins, is of the same description, and its exclusion proper, for the same reason.

6. The return of satisfaction, without any date or evidence in connexion with it, refers to the return day of the execution, and therefoz’e, the court properly refused to charge, that the prima facie intendment was, that the execution was satisfied on the 26th July, that being the day when the sheriff received it.

7. The refusal to charge, that it was incumbent on the plaintiff to show, to authorise a judgment against the sureties, that the execution was satisfied, and the money collected and received by the sheriff subsequent to the time they became his sureties, was clearly erroneous, if it must be understood as instructing the jury that these parties could be liable unless the default of the sheriff was subsequent to the period when they became bound; but we are not warranted in putting this construction on the charge; it must be understood with reference to the matter which immediately preceded it, which was with reference to the prima fa-cie intendment to be drawn from the return, unaided by other evidence; after ascertaining the opinion of the court, that the return must be referred to the return day, the effort then was, to get the instruction that the plaintiff must explain by proof when the money was received. Now, the court very properly declined the charge in this connexion. It' would have been entirely competent for the court to have said, that under that return, it was unnecessary for the plaintiff to introduce other proof than was already before the jury, it being in proof that the sureties were such previous to the return. In this view of the circumstances, in con-nexion with the charge, we think it free from error. [McCutchen v. McCutchen, 9 Porter, 662.]

Judgment affirmed.