3 Port. 385 | Ala. | 1836
This was a motion, under the
statute, for judgment against a sheriff, for negligence, in not making the money on an execution. The evidence offered by ihe sheriff, in excuse, was, “(hat. he was informed, by the debtor and Ids’ wife, that the property in his, (the debtor’s,) possession, to wit, a negro woman ami child, belonged to his, (ihe debt- or's) .wife; also, that it was the understanding in the neighborhood, that the negroes belonged to the debt- or’s wife, or to the father of the wife, who lived in Georgia; and that he was informed of the same matters, by persons who said they knew all about the property in Georgia; and that it had been loaned to the debtor's wife. This evidence was objected to, but admitted, by ihe Court* to go to the jury.
The evidence was clearly inadmissible.! It amounted only to-hearsay evidence, and did not tend to prove any fact, as to the liability of the property to the execution. If the sheriff had doubts as to’ the right of property, he might have required a bond of indemnity from the plaintiff, or his agent: not having done that, and having omitted to levy on ihe property, he was bound to shew due dilligeuce in endeavoring to collect the money — which the evidence admitted by the court, did not tend to establish.
Let the judgment be reversed, and the cause remanded.
