HARRIS et al v. BRADFORD, 4 Ala. 214

COLLIER, C. J. 1. The demurrer to the notice was properly overruled. Every material fact necessary to be alledged is stated in the notice — and the only objection to it is, that instead of saying a motion will be made at the time indicated, it states “ that the plaintiff did move for judgment.” This must be considered as a mere verbal mistake, which may, or may not, have been made by the Clerk, but be this as it may, ic cannot prejudice; for it appears by a reference to the date of the notice, that the motion would be made four days thereafter. 2.

If this proceeding had been instituted against the sheriff and his sureties, and the former alone pleaded, it would have been necessary to prove to the Court the fact of suretyship. [McWhorter et al v. Marrs, Minor’s Rep. 376; Barton et al v, The Bank of the State; 1 S. and Porter’s Rep. 471; McRae et al v. Colclough, 2 Ala. Rep. 74.] But the motion was against the sureties alone, who appeared and pleaded, and it was not necessary to show that they .executed the official bond of their principal; unless the pleading put that fact in issue.

The onus of making such proof in such a case, it has been held, can only be thrown upon the plaintiff by a plea of non est faclum, which’the statute requires to be verified by oath. [Jameson v. Harper, 1 Porter’s Rep. 431.] The finding of the jury against the .defendants on the issues, affirmed their partnership, and the second plea, according to the case last cited, was clearly bad, and therefore correctly stricken out 3. In Roberts and Battle v.

Henry, [2 Stewart’s Rep. 42,] it was determined that the statutes which make a sheriff liable to pay the amount of an execution, which he had failed to return, was not so peremptory in its terms as to admit of no excuse for the omission. That case it is true was a suit in equity, in which the complainant alledged as an excuse for not defending at law, his inability to attend the Court, so as t.o resist the motion. But the principle it is conceived must obtain at law; for the powers of the latter forum are in this respect co-extensive with those of Chancery, if the defence can be made out by legal proof.

There the sheriff attempted to show that he had placed the execution in the hands of a man who was going to the office of the Clerk who issued it, to be delivered to him, in obedience to its mandate — it having heen issued from a distant county. So in Marchbanks v. Rogers, [1 Stew. Rep. 148,] the Court said that a motion for failing to return an execution would not lie against a sheriff where it appeared that execution had been superseded.

The sheriff who fails, from neglect or other cause to return an execution, may be called on to answer to a rule nisi, for an attachment, yet the mere omission of duty is not conclusive to show that he is guilty ofa censurable violation of law.

Now we will not say that the proceeding provided by statute is analogous to the common law remedy by attachment, but- we will say, that in expounding the statute a regard should be had to pre-existing remedies; and though the terms of the act may be imperative, the old law, as well as the reason of the thing, should be referred to in order to ascertain the qualifications, and soften its seeming harshness.

A sheriff is not obliged to perform in person all the functions of his office, but it is competent for him to appoint a general deputy, either verbally or by writing, and a deputy so constituted, may do any act ofa ministerial nature, which his principal could do. [McGee v. Eastis, 3 Stew. Rep. 307; see also Tillotson v. Cheetham, 2 John. Rep. 63 ; Jackson ex dem Masten v. Bush, 10 ib. 223; Jackson ex dem Randall v. Davis, 18 ib 7; Brookyin v. Patcher, 8 Wend.

Hep. 47.] But the sheriff' cannot, by intrusting his official business to a deputy, free himself from responsibility — he will be answerable civiliterior the acts of the latter. Yet it would seem that he will not be chargeable for an omission or act of his deputy, which, if attributable to himself personally, would not be regarded as a violation of ditty. If the sheriff had retained the execution, and at the time when it should have been returned was too sick to réínrn or cause its return, this upon the authority cited, would have excused the omission.

And will it not equally avail him to show that he had intrusted the execution to a deputy who was prevented from returning it in consequence of sickness, and that absence from the county prevented him from giving his own attention to the business? In reason, we think, the cases are not distinguishable. In cases of this character the usual exactness in pleading is not required, but it is entirely regular for the sheriff or his securities, without respect to form, to state by way of plea the facts on which he relies for his defence.

The third plea sufficiently informs the plaintiff what the defendants proposed to prove. True it is not alledged in totidem verbis that the sickness of the deputy sheriff was so severe as to render it exceedingly difficult, if not impracticable for him to return the execution, yet terms perhaps of equivalent import are staied — and in order to make out the plea, it should be shown that the sickness relied on as a defence was such as disqualified for such business.

Nor will the mere sickness of the deputy avail but it should be shown that the sheriff left the county at a time when he was able, and expected to perform the duties of the office. * This'defence being available for the sheriff must he good for his sifreties, whose liability cannot be more extensive than that of their principal. 4. It has been repeatedly held here, that a sheriff or his sureties, against whom a motion has been made for the failure to return an execution, cannot be permitted to allodge the insolvency of the defendant as an excuse for the neglect.

Whether such an allegation can be entertained in a Court of Equity, it is foreign to our purpose to inquire; but we cannot forego the remark that a recovery against the sheriff, when it is obvious that nothing could have been made on the execution, is indefensible in morals, and must, be denounced when scanned by an enlightened conscience. This remark of course has no application to the case before us, for we cannot know but that the defendant in execution was entirely solvent. 5.

The discontinuance, (as it is somewhat inaccurately called,) as to the sheriff and his sureties not served with a notice, does not affect the regularity of the judgment against the other sureties. The plaintiff was expressly authorized by statute “to recover judgment against such of the parties as service may have been effected on.5’ [Act of January, 1841, Meek’s Sup. 346; see also Hill v. The Bank of the State, 5 Porter’s Rep. 537; Bondurant et al v. Woods & Abbott, 1 Ala. Rep. 543.] 6.

The entry of the motion made in April, 1842, as of the term when it was submitted was regular and is sustained by repealed decisions of this Court. The motion docket contained a memoranda which warranted the Court in petfecting that which should have been previously done. 7. The Judges of the County Courts are invested with authority to take the bonds of sheriffs in their respective counties, ■and are directed to deposit them in the Clerk’s office. [Aik.

Dig. 388.] This is a special power, and when it has been ex•ercised, the Judge is not authorized to withdraw and alter or vacate the bond, under a pretence that it was not such as he had intended to approve. The sureties can rarely be prejudiced by a mistake of the Judge of the County Court in this respect, for he is required on application of any one of them to call on the sheriff for a new bond, and if the same is not given to vacate his office.

It is not competent for the sureties to al-ledge that the bond is invalid because the penalty is less than the Judge had intended to require, or supposedüt to be — if it was executed and delivered by them, or their authority, it became obligatory upon them as soon as it was received and deposited with the Clerk. The modern rule as to the effect of an alteration of a bond, has been correctly stated in argument, and has been heretofore affirmed by this Court. [Brown v.

Jones, 3 Porter’s Rep. 420.] If, as we have said, the power of the J udge of the County Court is limited to the taking and depositing the bond, it necessarily follows that when this has been done, he is a strau-ger to it, not even entitled to its custody. This being the case, the substitution of ten for seven thousand dollars, however material and destructive if done by a party, or privy, cannot, when made by a stranger, impair its validity as a bond for the latter sum.

To conclude, we are unable to discover any error in the points presented, save only in overruling^the demurrer to the third plea — and for that cause alone the judgment is reversed and the cause remanded.