Riley v. Marshall

COLLIER, C. J. We have no statute which authorizes the course of proceeding adopted in this case. Our legislative acts, which provide a summary remedy against officers for the failure to pay over money collected on execution, &c. contemplate the plaintiff in execution as the actor in the motion, except in some few cases, of which the case before us is not one. These acts we have always held were introductive of a new and extraordinary remedy unknown to the common law, and could not be extended 683 by construction so as to embrace other cases coming within their mischief, and in which the officer was chargeable with a breach of duty. In the present case the motion is made by the defendants in certain executions which the court had directed to be quashed; it is a casus omissus in our statutes, and should not have been entertained. It need not be considered whether the court could not afford some expeditious remedy, so as to render a resort to a suit unnecessary. But if the jurisdiction of the Circuit court, in the manner in which it has been exercised were unquestionable, the judgment would be erroneous, because it adjudges distinct sums of money to be paid severally to each of the plaintiffs in the motion. Such a judgment in a court of law cannot be supported. An execution issued upon such a judgment would require not a joint sum to be collected, to which each and all the parties were entitled, but distinct amounts due them severally. If either of the plaintiffs in the judgment were to die, his interest would not be collectable by execution until his representative was made a party, and there could be no revival by associating an executor or administrator with the other plaintiffs. But this point is too plain to require explication ; it need but be stated to show the irregularity of the judgment. Such a proceeding, if allowable by law, should have been at the suit of each of the plaintiffs, for the recovery of the sums collected of them respectively. We have only to say, that the judgment of the Circuit court is reversed.