WILLARD FREEMAN & Co. v. WOMACK, 4 Ala. 539

COLLIER, C. J. The only question raised on the assignment of error is this, are the plaintiffs, on proving the allegations of their suggestion, entitled to recover damages on the execution, the execution itself having been satisfied, (with the exception of the costs,) previous to the time when the suggestion was made? The solution of this question must depend upon the construction of the third

section of the-act of 1826, “the better to secure money in the hands of Clerks, Sheriffs and Coroners.” That

section is in these words: “Whenever any sheriff or coroner to whom an execution shall have been delivered, shall fail to make the money on or before the first day of the term of the Court, to which said execution shall be returnable, and the plaintiff or plaintiffs, his, her or their attorney, shall suggest to the Court that the money could have been made by said sheriff or coroner, with due diligence, it shall be the duty of the Court, forthwith to cause an issue to be made up to try the fact; and if it shall be found by the jury that the money could have been made by the sheriff, or coroner, with due diligence, judgment shall be rendered against said sheriff, or coroner, and his securities, or any, or either of them, for the sum of money specified in said execution, together with ten per centum on the amount of said execution as damages, and also the costs of the suit.” [Aik.

Dig. 175.] The right to recover damages under this act, is certainly not the principal matter provided for, but it is the recovery of the amount of the execution which, for want of due diligence, the officer in whose hands it was placed has failed to collect. The damages are merely accessorial, and depend upon the right of the plaintiff to make the suggestion to the Court. The fact to be suggested to the Court, and the gravamen of the complaint is, that in consequence of the sheriff’s neglect, the amount of an execution has not been made.

Now it was conceded in argument, that the receipt of the money after the sheriff’s default, and before the suggestion made, would prevent a judgment for the sum expressed in the execution; and we think this is clearly true. If then the principal matter has been entirely satisfied, is it permissible to prosecute this proceeding, merely to recover that, which is incidental to, and dependent upon it? We think not. And this conclusion, apart from the general reasoning which sustains it, seems to us to acquire increased strength from the latter part of the

section cited. The judgment there directed to be rendered is “for the sum specified in said execution, together with ten per centum on the amount,” &c. In the case at bar, the statute judgment could not have been rendered at the time the suggestion was made, because the execution was previously satisfied, excepting the costs, and we think this, at least, a persuasive argument against the plaintiff’s right to recover.

The-failure of the defendants in execution to pay the costs before the suggestion was made, cannot place the plaintiffs in a more favorable position ; for the costs are due to the officers of the Court, and the ten per centum damages are never calculated upon them. In fact the plaintiffs did not insist upon a judgment for the costs of the execution. If the suggestion had been made before the money was paid to the plaintiffs,we will not say that they could not have recovered the damages.

But as the case is presented to us, we are satisfied that the County Court did not err, and its judgment is consequently affirmed.