SHERIFF. 1. THE DUTY AND AUTHORITY OF SHERIFF; HIS RETURNS, &c. II. LIABILITY OF SHERIFF; OF PROCEEDINGS AGAINST HIM; AND OF ACTION ON THE BOND AGAINST HIS SECURITIES. I. The Duty and Authority of Sheriff;-His Returns, &c. 1. Return of the service of writ must be in the name of the Sheriff. "Exexecuted by B. Brandon, D. S.” held to be an imperfect return of service. Land v. Patterson, A. R. 15. 2. Sheriff's return, being a mere ministerial act, is amendable at any time, even after demurrer. Moreland v. Ruffin, A. R. 18. 3. Indorsement of sheriff on fi. fa., no money made," is not a compliance with its mandate, and the requisitions of the law, and is no return. Anderson v. Cunningham, A. R. 48. 4. Writ returned-"executed by R. Brandon, D. S. for John Yancey, sheriff," is good. Briggs & McClure v. Greenlee, A. R. 123. 5. Return" received January 9, 1822, and executed, &c.," was executed on day of its receipt. Wheat et al. v. State, A, R. 199. 6. Not necessary that sheriff's return should show the delivery of copy writ. Mayfield v. Allen, A. R. 274. 7. Return of service of notice on W. G., cashier, is no evidence that W. G. was cashier, on motion for judgment under statute. P. & M. Bank, Huntsville v. Walker, A. R. 392. 8. On a writ against two defendants, the sheriff returns "executed;" copy offered to defendant R, and not accepted-semble-that it is to be considered as executed on R, only. Roberts v. Johnson, 2 S. 13. 9. A citation, when the sheriff is a party interested, must be executed by the coroner. 10. Sheriff may appoint a general deputy and a deed of conveyance executed by such the seal of his principal, is valid. Seawall v. Bates, 2 S. 462. by parol, as at common law, deputy, in the name and under McGee v. Eastis, 3 S. 307. 11. A sheriff, under the act of 1819, has no authority to give a casting vote between two candidates for sheriff, no such power being expressly given. State v. Adams, 2 S. 231. 12. A sheriff may amend his return on an execution at any time, and such return will relate back and protect a purchaser as if originally correct. Brandon v. Snow & Cunningham, 2 S.255. 13. The return of "satisfied" on an execution, is presumed to be legal, and a sheriff to avail himself of the above principle, will not be permitted to show by the annexation of a date, that the execution was satisfied after the return day. Barton v. Lockhart, 2 S. & P. 109. 14. When a sheriff sells property under an execution, which is incumbered by a deed of trust, on which a sum of money is to fall due some months after the sale, the sheriff cannot legally adjust the true debt of his own authority, by paying the money to become due upon it out of the proceeds of the sale. Baglon v. Scott, 2 P. 315. 15. When a sheriff in his return offers an excuse for not paying over the whole of the money, which is insufficient, the court would be bound to disregard such excuse, and his own return is not conclusive in his favor, either as to the law or the facts involved. Ibid. exe 16. When sheriff returns a writ, issued against three defendants, cuted," the court will intend that it was executed on all the defendants. Cuntly v. Moody, 7 P. 443. 17. A sheriff appointed by the governor, to fill a vacancy, holds his office until the next annual election for representatives to the general assembly. State ex rel. Jumes Murray v. Ayers, A. R. 323. 18. In renewing sheriff's bond under the act of 1822, the bond is good though taken by the judge at chambers, and not in open court; and the judge at chambers may describe the amount of the penalty. Ibid. II. Liability of Sheriff; of Proceedings against him; and of action on the Bond against his Securities. 19. On motion against sheriff for failing to return an execution at proper time, parol evidence admissible to prove failure. Anderson v. Cunningham, A. R. 48. 20. On motion against sheriff for not returning execution issued from competent authority and duly authenticated, he cannot object to its regularity or propriety. Ibid. 21. In proceeding against sheriff and securities by motion, all the facts and circumstances required by the statute for the exercise of this summary jurisdiction must appear in the record. Yancey, et al. v. Hawkins, A. R. 171. 22. A motion will lie against sheriff and securities for failing to return ca sa-statute 1819. Mc Whorter, et al. v. Mars, A. R. 376. 23. The failure of sheriff to return execution, if not contested, is sufficiently proved by the official entries, and a jury is not needed. 1 bid. 24. In an action against sheriff and his sureties, his claiming and exercising the office, and their having executed an office bond, containing an admission of the fact, estops them from denying that he is sheriff. Mc Whorter v. McGehee, 1 S. 546. 25. In renewing sheriff's bond, under the act of 1822, the bond is good thongh taken by the judge at chambers, and not in open court, and the judge at chambers may prescribe the amount of the penalty. Ibid. 26. A previous default by which the sheriff and former securities might have been made liable for the same debt, is no defence to after sccurities. Ibid. 27. Statues concerning sheriff's bond, construed. 28. In an action against sheriff for false return, there must be a fraudulent intention, so as to charge him-semble. Sutherland & Sutherland v. Cunningham, 1 S. 438. 29. An execution against the sheriff must be directed to the coroner, and if directed to the sheriff it cannot be legally executed by the coroner, though delivered to him. Pope & Hickman v. Stout 1 S. 375. 30. Prior to statute 1826, a motion would not lie against a sheriff, duly making his return, for failing to make the money on a fi fa. Williams v. McBroom, 1 S. 192. 31. Service of process by sheriff elect, before he was qualified, as the de puty of his predecessor, after the time for which he was elected has expired, is valid. Garner v. Clay, et ul. 1 S. 482. 32. Sheriff failing to take bail, not liable as special bail unless he had due notice as required by statute. Neal v. Gaines, 1 S. 158. 33. On motion against sheriff and securities, the record must show that it appears to the court they were securities. Mc Whorter et al. v. Marrs, A. R. 376. 34. In trespass, vi et armis, against sheriff, evidence that the act done was by one of his deputies, is admissible. Prewitt v. Neal, A. R. 386. 35. Not liable for discharging prisoner in obedience to an erroneous order issuing from judicial officer within his jurisdiction. Bender v. Graham, A. R. 269. 36. Judgment against sheriff and his securities for failing to return an execution, should be the amount of execution and interest, and not for a fine of five per cent a month from the date of execution until judgment, as above. McWhorter, et al. v. Marrs, 1 S. 63. 37. No excuse for sheriff's not returning an execution, that he put it into the post office. Ibid. 38. To sustain a judgment on motion against a sheriff, the record must show that he had notice of the motion. Mc Whorter et al. v. Murs, A. R. 376. 39. A motion will not lie for not returning an execution which had been superseded—semble. Ibid. 40. Debt on sheriff's bond for failing to administer properly estates committed to them, must be brought in the name of the judge for the use of the party injured, and they are liable in the same manner as other administraGovernor v. Gant, et al. 1 S. 388. 41. It is not sufficient to effect the sheriff, with legal notice that the citation was placed in his hands as sheriff' against himself and another, and returned by him as to his co-defendant, "not found." tors. Seawall v. Bates, 2 S. 462. 42. A sheriff may be permitted, even after judgment, to amend his return on a writ nunc pro tunc, so as to show that the writ was executed in fact on the defendant. Heflin v. McMinn, 2 S. 492. 43. Under act of 1819, a judgment on motion, may be had against sheriff's securities, on notice to sheriff only. Neal et al. v. Caldwell, 3 S. 134. 44. A sheriff is liable if he fail to make return three days before the return term, and it is no excuse that property was levied on and advertised to be sold on the first day of the return term, and that the execution was retained to complete the sale. Ibid. 45. The delivery of an execution to the sheriff may be proved by a memorandum made on the execution docket, and the oath of the clerk that it was issued in conformity thereto, without the production of the writ or notice to produce it. Ibid. 46. In an action against a bank, sheriff's return that he served a process on the cashier, without proof that the person was such cashier, is insufficient. St. John v. Tombecbee Bank, 3 S. 146. 47. To sustain an action against sheriff for a false return of a fi fa. it is necessary to show that there was a judgment to authorize the issuance of the fifa. Tombecbee Bank v. Godbold, 3 S. 240. 48. A memorandum, shewing the amount, parties, and date of the award of judgment, signed by the clerk, is not sufficient for that purpose. 49. Judgment cannot be rendered against sheriff for an escape unless the verdict expressly find that the escape was by his consent, or through his negligence; or, that the prisoner might have been retaken, and the sheriff and his officers neglected to make immediate pursuit. Roundtree v. Smith, 1 S. 157. 50. The statute making sheriffs liable for failing to return executions, three days before the court, admits of a reasonable excuse from the sheriff for not complying therewith. Roberts & Battle v. Henry, 2 S. 42. 51. Chancery has jurisdiction to release a sheriff when a judgment has been obtained against him, for failing to return an execution three days before a court, a sufficient excuse being shewn for such failure, and also for the failure to make a defence at law. Ibid. 52. When two candidates for sheriff obtain an equal number of votes, no election is effected. State v. Adams, 2 S. 231. 53. In such case a vacancy exists, which may be filled by executive appointment until the next general election. Ibid. 54. In proceeding against a sheriff and his sureties for failure to pay over money collected on an execution, it is necessary to prove who the sureties Burton v. Bunk of the State of Alabama, 1 S. & P. 471. 55. Proceedings against sheriff and sureties, under the act of 1825, failing to pay over monies; it is requisite to alledge in the notice by special averment, that the money had been demanded, and by whom that demand was made—but verdict will cure the defect if the record show proof of the fact. Barton et al. v. F. & E. Peck, 1 S. & P. 486. 56. Such proceedings are not limited to the period, during which a sheriff holds his office, but may be instituted after that period has elapsed. Ibid. 57. Damages at the rate of five per cent. per month, in such cases are allowed from the time the demand is proved to have been made until its col-* lection. are. Ibid. 58. Money paid on an execution to a sheriff or constable after the day to which it was returnable or before the issuance thereat, will not amount to a satisfaction—and no motion can be sustained against a sheriff, under any of the statutes, for failing to pay it over-or an action be sustained against his su reties. Barton et al. v. Lockhart, 2 S. & P. 109. Į Bobo & Jackson, v. Thompson, 3 S. & P. 385. 59. A notice against a sheriff, for failing to pay over money, must show that the party intends proceeding for damages, as well as the amount collected and interest, otherwise the former are not recoverable. Ibid. 60. In trespass vi et armis, against sheriff, a plea of justification under process, must set out the process specially, and state every fact necessary to the justification. Harrison v. Davis, 2 S. 350. 61. The process must be correctly described, if there is a variance, it cannet be given in evidence. Ibid 62. Sheriff cannot in such case, under the general issue, go into evidence to show that the sale under which the plaintiff holds is fraudulent. Ibid. 63. Or that the goods taken were the property of the plaintiff's father— although found in possession of plaintiff and claimed by him. Davis v. Hooper, 4 S. & P. 231. 64. An action of debt may be sustained jointly against a sheriff and his sureties for a failure to pay over money collected by him, without first establishing the liability and default of the sheriff by a separate suit. Governor for &c. v. White et al. 4 S. &. P. 441. 65. In such action it is a sufficient assignment of a breach to aver a general receipt of the entire amount collected and failure to pay over, without specifying each particular item received. Ibid. 66. An injury accruing to plaintiff in execution, from the mere impropriety of the return indorsed thereon by sheriff, would not authorize a proceeding against him, in the summary mode pointed out by statute-semble. Ayres v. Dobson & Hughes, 5 S. & P. 441. 67. In proceedings had under statute against sheriff, for not making the money on an execution, no notice of the "suggestion" to the court is neces sary. Kirkman v. Harkins, 1 P. 22. 68. The remedy against the sheriff for not making the money on an exe cution is not limited to the return term of the execution, but may be sought at a subsequent term. Ibid. 69. Motion against sheriff's security, under the statute, for not paying over money collected by sheriff on execution-if the security relies for his defence on a denial of the facts stated in the notice, the plaintiff is not bound to produce the sheriff's bond, to show that such defendant is security -for if defendant desired to deny this he should crave oyer of the bond and plead non est factum. Jamison v. Harper, 1 P. 431. 70. The plaintiff in execution, not the sheriff, is entitled to the benefit of a trust deed, on paying off the debt secured by it; and the trustee will be bound to execute the trust. Baylor v. Scott, 2 P. 315. 71. Summary proceedings, under the statute 1807, provide that defendant shall be entitled to same remedy against sheriff as the plaintiff in execution for failing to pay over money; but this act does not extend to such defendant the remedies provided for plaintiff by subsequent acts of the legislature-but this act is to be construed with reference to the laws then existing. Ibid. 72. In trespass against sheriff, for wrongfully taking goods, under an execution in attachment, the defendant in attachment is not a competent witness to prove that he had sold the goods to the plaintiff for valuable consideration: nor is the record of the attachment cause, to which the plaintiff is neither party nor privy, its relevancy to the issue being not otherwise shewn-admissible in evidence. Burns v. Taylor, 3 P. 187. 73. When goods were levied on under an attachment, by the sheriff's deputy, in the hands of a stranger whose receipt was taken for their delivery, and were afterwards sold by the deputy-held, that trespass would lie against sheriff, for the act of his deputy, in the levy and sale. Ibid. 74. In trespass, for illegally taking the goods of plaintiff, the officer (no objection appearing to be made against the legallity of the execution) may justify alone on the process under which he has acted. Fortner v. Flanagan & Driver, 3 P. 257. 75. On suggestion against a sheriff, under the act of 1826, for failing to make the money under an execution; evidence that the property in possession of defendant in execution, was said not to belong to the latter, will not excuse the sheriff from a levy. Robertson v. Beavers, 3 P. 385. 76. In an action by plaintiff in a judgment, to recover of sheriff's sureties money received by sheriff's deputy thereon, notice to the sheriff's adminis trators that in the event of a pending suit being determined against the plaintiff in the judgment, the estate of the sheriff would be held liableheld sufficient, without the production of the receipts signed by the deputy. The sheriff, under such notice, appearing and defending the suit, McBroom et al. v. Governor, 4 P. 90. 77. Plea to an action of trespass, "that the goods were taken as sheriff, by virtue of a fieri facias, estops the defendant from afterwards alledging that the writ was not served upon him by the proper officer. Roberts v. Beeson, 4 P. 164. |