T. & J. Kirkmans vs. Martin Harkins, 1 Port. 22

By Mr. Justice Thornton : This writ of error is brought to reverse a judgment of the county court of Lauderdale, in a proceeding there had under the 3d

section of the act cf 1826, entitled

an act “ The better to secure money in the hands of clerks, sheriffs, and coroners.” The record discloses, as 'the incipient step in the procedure, a notice, dated 16th February, 1831, to the defendant, late sheriff of Lauderdale, stating that the plaintiffs would, on the 18th of said month, move the court then in session, for an issue, according to the statute, to make him liable for not making the money on an execution, said to have been .issued on a judgment in favor of the plaintiffs, against one Daniel Wilerson. It does not appear that this notice was ever served on the defendant.

Then follows a formal declaration, setting forth with particularity, all the grounds upon which a recovery is sought from the defendant, and concluding with a prayer for an issue, to be ordered according to the statute above referred to. Whereupon, the court ordered an issue to be forthwith made up, to try the fact, whether, by due diligence, the money could have been made upon the execution, before the return day thereof.

Immediatély upon this order for an issue to be made up, on the motion of the defendant, the, whole proceedings are quashed, and the judgment for the costs rendered against' the plaintiffs, which is now here assigned as error. I cannot perceive upon what view of the case, the motion to quash the proceedings, was sustained.

Its propriety is defended by counsel here, upon the grounds, that the record does not disclose a sufficient ground of claim by the plaintiff; that if so, no sufficient notice of such claim or demand was given to the defendant; and lastly, that the proceeding was not warranted by the statute ; because not. instituted at the term to which the execution was returnable. From the view which I take of the statute, tho proceeding, when arrested, and q tasked, was not obnoxious to either objection here intimated.

The first step which the statute requires, is the suggestion to the court, by tho party complaining, of defalcation in the officer. Mo notice that, such suggestion will be made, is required to be given. The application is cx xaric, and the issue' ordered as of course, upen the'plaintiff’s suggestion.

Thus far, no detriment can ensue from the -ex-paric nature of the proceeding, and the statute clearly allows it to be so.' If the court had proceeded to males up the issue, and try the fact without notice, then a clear injustice would have been done, which the statute ¡iocs not allow, nor cos'd constitutionally have permitted. The issue in this case was forthwith ordered to be made, to try the fact suggested, but it was not made, nor a trial had.

Previous to the doing of either of those things, we are to presume that the court would, see that due and legal notice had been given to the party defendant, to come forward, to unite in the issue, and defend the trial. So far as want of notice may have, been the foundation of the judgment complained of, is clearly unsupported ; as the only notice contemplated by the statute, and necessary to the maintenance of his defence, should regularly have originated subsequent to.the state of proceeding, when the motion to quash was made by the defendant, and sustained by the court.

As regards the statement on the record, of the ground of claim, by the plaintiff from the defen-it appears to contain every requisite, which ought, in reason to be demanded. A regular declaration, containing an ample and certain detail of the matters complained of, is filed and accepted by the court as a suggestion; upon which, the issue, as above stated, was ordered. All that can be said against this course, is at most, but to the manner, and not to the matter of the proceeding.

The argument, that the remedy afforded by the statute in this case, is limited to the term of the court to which the execution is returnable, is no less untenable. When an action or remedy, once arises, it will contiuue without limit as to , time ; unless its term is prescribed by some positive enactment. The statute giving the

summary remedy pursued in this case, does not limit its operation, and if embraced even in the equity of the general statute of limitations, it is not barred. The judgment is reversed, and the cause remanded.