| Ala. | Jun 15, 1848
Upon the payment by the sureties of the-sheriff, of the judgment obtained by Ledyard, Hatter & Co. against them, for the default of their principal, in not paying over the money which, by the return of the sheriff, he acknowledged to have received of the plaintiff in error, they were subrogated to all the rights of the former, both against the sheriff and Saint, and in addition received from them an authority to use their names, in the prosecution of any suit which might be necessary to enforce their claim against the sheriff. No such authority, to be sure, is conferred in express terms, but the direction to their attorney to deliver them the papers in the cause, must be considered as conferring the power to make such use of them, as was necessary to make their claim effectual.
In virtue of this authority, it appears they moved the court, in the name of Ledyard, Hatter & Co., to quash the return of satisfaction, made by the sheriff upon the execution, which motion was allowed by the court, and a new execution directed to issue. Of the pendency of this motion, the plaintiff in error had notice, and as he was the party directly interested, he is concluded by the judgment, so long as it remains in force. This is a full answer to the motion now made by him, to quash the execution so issued, and enter satisfaction
It is no answer to this, that the sureties have obtained a judgment also against the sheriff, which includes the amount paid by them to Ledyard, Hatter & Co. The judgment is not a satisfaction until actually paid. Should they recover from the sheriff the full amount of that judgment, it may be they will be considered as holding it for the use of the plaintiff in error, to the amount of the $150, which the plaintiff in error paid in money to the sheriff, on the execution of Ledyard, Hatter & Co. Be that as it may, it is very clear they are estopped by the previous judgment of the court, from insisting upon this motion, that any part of the judgment has been paid, as that is the very question which has been adjudged, and determined between these parties.
Whether he could not have relief in equity, against the payment of this sum the second time, if he can show a sufficient excuse for not making defence to the motion to set aside the return of satisfaction made by the sheriff, we need not now inquire. . 1
Let the judgment be affirmed.
On the petition of the plaintiff in error, a re-argument was ordered, and the cause was again argued by Henley, for the plaintiff in error. Hopkins, contra.
Henley, for the plaintiff in error, insisted—
1. The evidence set out in the record shows, that the judgment of Ledyard, Hatter & Co. against James H. Saint, was satisfied as against the sheriff, and as far as he was concerned. Robbins v. Gov. use, &c. 6 Ala. 839" court="Ala." date_filed="1844-06-15" href="https://app.midpage.ai/document/robbins-v-governor-of-alabama-6502328?utm_source=webapp" opinion_id="6502328">6 Ala. 839.
2. It was also satisfied as against the plaintiffs in execution, for that though the act of the sheriff was not binding on them yet his act was not absolutely void, but was at most only voidable; and being only voidable, it was capable of confirmation, and that it was fully confirmed by them' — 1. In ruling the sheriff and seeking to hold him and his sureties liable, upon the ground that the debt really had been discharg
3. By the payment of the money by the sureties, they were only subrogated to the rights of the sheriff They were his sureties, and not the sureties of the defendant in execution, or of the plaintiffs. 1 Sto. Eq. 477, and the authorities cited.
4. By the pretended assignment of the judgment against Saint, they were placed in the same, or at all events in no higher position than that occupied by the plaintiffs in execution.
5. In all aspects of the case, the defendant was discharged before the proceedings in the circuit court to set ,aside the sheriff’s return.
6. Those proceedings cannot operate to revive the debt. If the debt was in fact discharged, it was discharged without the aid of the sheriff’s return, and was not revived by striking out that return. The legal obligation to pay had been extinguished. The sheriff’s return was only evidence of that discharge, and not the discharge itself. By striking out the sheriffs return, the parties are put back into the position they occupied before any return was made.
The court affirmed the judgment at this term, upon the ground stated in the opinion of Judge Ormond, at the June term, 1847, and did not pronounce any other opinion.