Reid, sheriff, &c and his sureties v. The Planters' and Merchants' Bank of Mobile, 3 Ala. 712

COLLIER, C. J It is insisted that the judgment of the Circuit Court is erroneous, 1-. Because no notice of the motion was given to the sureties of the sheriff. 2. Because the jury did not find by their verdict, who were the sureties; nor does the record show, that any proof on this point, was adduced to the Court. In Broughton, et al. v.

The State Bank. 6 Porter’s Rep. 48, this Court considered it a settled question, that in a motion against a sheriff and his sureties for failing to pay over money collected upon an execution, notice to the former was sufficient to authorise a judgment not only against him, but his sureties also; see McWhorter, et al. v. Marr’s, Minor’s Rep. 376; Neal, et al. v. Caldwell, 3 Stewart’s Rep. 134. No objection is made to the judgment so far as it is to operate against the sheriff alone, but the question is, do the facts recited in the record sustain it as against the sureties. In Mc-Whorter, et al. v.

Marr’s, Minor’s Rep. 376: it was decided that in a proceeding by motion against a sheriff and his sureties for the failure to return an execution, it was indispensably necessary, unless expressly or impliedly waived, that the individuals sought to be charged as sureties, should be proved to be such, and that this fact should appear from the record to have been shown to the Court. And in Barton, et al. v. The State Bank, 1 Stew. & Por. Rep. 471. This Court held the same opinion, and re-affirmed the case cited. It has been repeatedly held from the earliest, up to the most recent decisions of this Court, that in

summary proceedings provided by statute, every thing necessary to give the primary Court jurisdiction, and to legalize its judgment, must be shown by the record. Logwood v. The Planters’ and Merchants' Bank of Huntsville, Minor’s Rep. 23. Bates v. The Planters' and Merchants’ Bank: 8 Porter’s Rep. 99. Levert v. The same, ibid. 104. Bettis v. Taylor, ibid. 564. If, however, the sureties appear and submit the case to the jury, it will not be necessary to prove the fact of suretyship, unless they have denied the execution of the sheriff’s bond by the plea of non est factum. Jamison, et al. v. Harper, 1 Por.

Rep. 431; Bettis v. Taylor, 8 Por. Rep. 564. In the case at bar, the sureties did not appear, but the sheriff alone pleaded not guilty, which we understand to be a general denial of the allegations made against him in the notice. Under the issue then, it was incompetent for the jury to try the fact of suretyship. But the proper course was, after the jury had returned their verdict, for the plaintiff to have offered evidence to show, that the persons who are described as sureties joined with him in his official bond.

No evidence of this kind was adduced, but the Court assumed the fact without proof, and in this, according to the cases cited, mistook the law.. The consequence is, the judgment of the Circuit Court is reversed, and the cause remanded, unless the defendant in error assents to the rendition of a judgment against Reid alone, according to the verdict,