Vastbinder v. Spinks, 16 Ala. 385

Vastbinder v. Spinks

16 Ala. 385 | Ala. | 1849

DARGAN, J.

This was a rule against Spinks, as sheriff, and his securities, for failing to return an execution to the office of the Clerk of the Circuit Court of Clarke, from which it issued, three days before the commencement of the term to whicn it was returnable. An issue was made up, and the cause submitted to a jury. It appeared that the sheriff had delivered the execution to the plaintiff’himself, who undertook to return it, but failed to do so within the time prescribed by law. The court charged the jury, that if the plaintiff undertook, as the agent of the sheriff) to return the execution within the time prescribed by law, and failed to do so, the sheriff was not liable.

1. A sheriff who receives executions from different counties must necessarily return them to the court from which they issued, either by an agent or by mail, as it would be impracticable for him to go himself to every county to deliver them to the different clerks. If the plaintiff himself undertakes to perform this duty for the sheriff, and fails to return the writ within the time prescribed by law, the failure is the result of his own neglect, for which the sheriff is not responsible. In the case of McClure v. Colclough, 5 Ala. 65, it is said, that if the plaintiff or his attorney induce the sheriff to delay the return of the execution, neither the sheriff nor his securities are liable for a failure to return, because the plaintiff has the right to control his own process. If the sheriff is entitled to be excused for .failing to return at the-'request of the plaintiff, surely he should not be held responsible, when the failure results from the neglect of the plaintiff, and without any negligence or default on rthe part of the sheriff.

2. But we think the court erred in permitting the sheriff to testify on the trial to the facts on which he relied as an excuse for failing to return the execution. He was not only directly interested, but was a party to the suit. It is true, that a failure to return an execution, within the time prescribed by law, admits of a reasonable excuse, and it is competent for the sheriff to show that he ought not to be charged with the penalty prescribed by the statute, notwithstanding the failure to return within the prescribed time. Roberts & Battle v. Henry, 2 *387Stew. 42. But in a suit or proceeding against the sheriff to ¡recover this penalty, he must establish this excuse as he would any other defence, that is, by competent and disinterested testimony.

'The judgment must be reversed, and the cause remanded.