AYRES vs DOBSON & HUGHES, 5 Stew. & P. 441

THORNTON, J. Tliis case comes before this .Court, by writ of error, to a judgment of the County Court of Jefferson, upon a motion against the late sheriff of that County. The assignment of errors is multifarious, and well it might be so, for the case presented by the record is truly t:sui generis.” The record opens with what seems to be a formal process, in the style of ‘‘ The State of Alabama,” directed to the sheriff of said County, (greeting,) and solemnly tested by the Clerk 'of the Court.

It came to the hands of the sheriff", and in due season comes back to the Clerk, with the sheriff’s return of “non est inventus.” Upon this, an ffMas is issued and served upon the defendant. Here, a short interlude intervenes, upon the record, in which the defendant moves the said Court to amend his return upon the execution described in the process above mentioned, of which nothing more is seen or heard, except that, in answer to a certiora-ri, issued from this Court, it is certified that the motion to amend was overruled.

At the August term, one thousand eight hundred and thirty-one, a trial ivas had, and, upon demurrer to the evidence introduced on the part of the plaintiff, in support of his motion, the following judgment was rendered by the Court: “ It is, therefore, considered by the Court, that the plaintiff recover against the defendant the sum of two hundred and eighty-four dollars and thirty-six and one half cents, the amount of the judgment against Hanby, besides his costs, by him, about his suit, in this behalf, expended.

And said defendant, in mercy, &c,” It is important, in deciding upon this case, to determine for what particular violation of his duty, the defendant in this cause, was sought to he made liable. The mode of recovery against a sheriff by motion, is a cumulative remedy given by statute, and only lies where it is so expressly given.

It is allowed for not levying money on execution, when practicable — for not paying it over, when levied — for making a false return, and for not returning the writ, itself, into the Clerk’s office, from which it issued, at least three days previovs to the term of the Court to which it is made returnable. If the motion in this case, were for any thing else than the failure to return the writ, itself, back to the office, the evidence which is spread upon the record, would not furnish a shadow of support to it.

In that sense, alone, the words used in the notice, and in the judgment of the Court — -“for failing to return the execution, according to law” — must be understood, or this whole proceeding is a legal non-entity. If any injury accrued to the defendant, from the impropriety of the return, as commonly so called, indorsed on the execution, his i-emedy was not this

summary proceeding, but a common law action. Let us suppose it, then, (for it is all supposition,) to have been intended as a “ motion by Dobson & Hugues, against John B. Ayres, late sheriff, &c., for failing to return, according to law, the following execution, (here it should be set out on the record, as it is described in the notice,) which came to his hands, and was by him detained from the office,” &c. Upon the hearing of this motion, all the evidence being record, or paper testimony, was demurred to, and in that manner, is now spread upon the record.

It is evident, from examining the evidence, that it does not sustain the motion which the plaintiff in error is supposed to have been notified to defend. The execution, which is a most material part of the proof, is one upon a different judgment from that, on which the one he is called upon to answer for failing to return is described, in the notice, to have issued.

The execution in the motion and notice, is described as having issued upon a judgment rendered on the twentieth August, one thousand eight hundred and twenty-seven, whereas the execution introduced in evidence, purports to be a judgment, rendered on the third Monday in February, one thousand eight hundred and twenty-seven, as is recited in the body of the said execution. An indorsement on the back of this execution, in the following words and figures — “Judgment, 20th August, 1827,” made when, by whom, and for what purpose, does not appear- — can not control a statement, which is an essential part of the writ.

If this were an ordinary case, where the question raised by demurrer to the evidence, were decided upon below, and brought up properly for our revision, we could not hesitate, from o.ur view of the evidence, to reverse the decision of the County Court.

But the only judgment which can be rendered in a motion like this, if it be considered as made for detaining the execution from the office, being a fine, which is placed by statute, in the discretion of the inferior tribunal; and the exercise of discretionary power, not being the subject of supervision by this Court, we could not disturb this judgment, either for the enormity of the fine which may have been imposed, provided it did not exceed the limit put upon it by the law; or, for a misconception of the evidence, or circumstances of the case, upon which the fine was assessed.

This discretionary power, however, I think, is confined to the amount of fine to be assessed, within the limit of the statute, and to the evidence, which, in contemplation of law, affects that amount — power over the evidence, being an incident to power over the fine. But, when this discretionary power wanders from the channel which the law has prescribed for its course, it is subjected immediately to the controlling influence of this Court. Claiming thus far a supervising authority, let us look into the proceeding.

Without deciding whether the notice required by the statute was good, in the manner it was issued — not being in the name of the party to the' judgment — we think that the judgment itself, which is embraced by the assignment of errors, can not find any support in the record, and should be reversed, as á nullity. Every judgment should rest upon some' certain and definite basis; which the record should disclose., I ask, for what violation of duty, by the officer,was this judgment pronounced 1 The record is either silent on this subject, or speaks with oracular ambiguity. In

summary proceedings of this kind, a motion should be entered upon the record, showing for what cause the action of the Court is sought. Some times the notice, which is, properly, evidence, under the motion, is adopted as the motion; and, this will do, where the notice, itself, is single or for me cause, and that unequivocally set forth; hut not as here, where the notice is a perfect uon plus. From examining the notice, the other evidence’ accompanying it, and the judgment itself, my mind is irresistably led to the conclusion, that the whole proceeding was had upon a misconceived apprehension, that the

summary remedy of notice and motion, would lie for the defect, or omission in the indorsement of the sheriff, in leaving out the words “ lands or tenements.” It is unnecessary, however, to speculate about the meaning of a record; where there is room for conjecture, there is palpable error; and this record is so fruitful of it, that the judgment it con--tains must be reversed.