Webb v. Bumpass

| Ala. | Jan 15, 1839

COLLIER, C. J.

We do not understand that the writ of fieri facias, with its endorsement, was the only evidence offered by the plaintiff of his right to recover, but only that it was proposed, so far as it was pertinent to maintain the issue. He may- have been prepared with the sheriff’s deed, and such other evidence as was necessary to show that the particular tract of land embraced by it, is identical with that, on which the execution was levied.

It was said at the bar, that the evidence was rejected, because the first fieri facias having been levied on property sufficient to satisfy the judgment, the Circuit court supposed the second to be a nullity. It is clear, that if the defendant pays the money to the sheriff on a fieri facias, he is discharged from the execution, and the plaintiff must bring his action against the sheriff. So, if the sheriff take goods in execution under a fieri facias, whether he sells them or not, yet, as they were taken from the party against whom the execution was sued, he may plead the taking in discharge of himself, and shall not be liable to a second execution — (See 2 Bac. Abb. 719, 720, .and pases cited in notes.) But if a party taken on a capias ad satisfaciendum escapes, or is rescued, though the sheriff is made liable, because he ought to have called to his aid the posse comitatus, yet the plaintiff may take out any new execution, and shall not be compelled to take his remedy against the sheriff, who may be' dead, or insolvent. And the law is the same, where goods levied on by fieri facias, are removed by the party himself, or by his permission or connivance, so that they cannot •be sold under the execution Uself, or under a venditioni e$ponas, issued on the sheriff’s return — (2 Bac, Ab. 719 ; Cro. Car. 40, 455.)

There can be no doubt that the sheriff became liable, by his levy, to satisfy the plaintiff the amount of his judgment : the property was doubtless of sufficient value for that purpose, and it was the sheriff’s duty to have provided that it should be forthcoming at the day of sale. The defendant is not, however, prejudiced by the sheriff’s neglect, and cannot be permitted to refer the plaintiff to him for the payment of his demand. This would be to compel one who himself was in no fault, to commence a new action against another, who might be unable to respond to him, while the original debtor honestly owed the debt. When the law shall recognise such a principle, it will cease to be respected as a science founded in the purest morality, but be regarded as uncertain as a game of hazard, whose capricious decisions often sacrifice the. artless and confiding, to advantage the cunning and the knavish.

The Circuit court was not authorised to reject the execution and its return, because the sheriff, at the same time, had in his hands a venditioni exponas, directing the sale of the slaves levied on by the first fieri facias-. We have a statute which prescribes, “ When any execution shall issue, and the party at whose suit the same is .issued, shall afterwards desire to take out another writ of execution, at his own proper costs and charges, the clerk may issue the same, if the first writ be not returned and executed,” &c. — (Aik. Dig. s. 2, p. 159.) Here is a clear authority to issue a second execution, while the first is still in the sheriff’s hands unsatisfied.

It was certainly no objection to the execution offered in evidence, that the sheriff’s return did not describe with more particularity, the land levied on. There is no statute, imposing upon the sheriff the duty of making a more particular description. In Benjamin vs. Smith, (4 Wend. R. 462,) the court say it is not necessary in the return to an execution, by virtue of which lands have been sold, to describe, particularly, the land sold- — and that it is competent to shew the identity of the property sold, by parol proof.

We have been thus particular, in considering every . question, that could, by any reasonable probability, have suggested itself as an objection to the admission of the evidence, in the Circuit court; because the case was submitted for our decision, without even a single suggestion on the part of the defendant in error.

Our conclusion is, that the judgment must be reversed, and the case remanded.