Hill v. Fitzpatrick

ORMOND, J. We consider the breaches upon which the cause was tried, well assigned. The first and seventh breaches alledge in substance, that Hill, as sheriff of Wilcox county, received the execution which issued on the plaintiffs’ judgments on a day which is set forth, returnable to the next succeeding term of the court, and that he made the money thereon. It is true, no special request is alleged to have been made of the sheriff for the money, nor was it necessary to allege one. The licet saepius requisitus was sufficient, at least in this State, when special demurrers are abolished. That the omission cannot at this day be taken advantage of by general demurrer, [see the authorities referred to in 1 Chitty’s Pleading, 324,] the law was ruled otherwise by this court in McBroom v. The Governor, [6 Porter, 32,] but we are satisfied the decision was wrong. The sixth breach assigned, is, for a failure to return the execution, and is in the usual form. We have not thought it necessary to examine [318] the four assignments which were abandoned by the plaintiff on the trial, as his right to do was unquestionable, even after the defendants demurrer had been overruled. The remaining questions aiisc on the bill of exceptions. The court did not err in permitting the plaintiff to read the official bond of the ¡hcriff, which was described and set out in the declaration. If a subsequent bond was executed, which superseded the bond declared on, the fact should have been put in issue by plea. It was not necessary in this action, to produce the judgment on which the execution issued; the recital of its existence in the execution under which the sheriff acted, was at least prima facie evidence of the fact. The objection that the preliminary proof, that the execution was not to be found in the clerk’s office, was not sufficient to let in secondary evidence, was properly overruled by the court, so far as we can judge from the record. The objection was, that the person who made the examination, was not the keeper of the office, but it by no means follows, that he did not have access to the office to make the search, or that he was not assisted by the clerk in making it. Nor, indeed, is it shown that the execution was ever returned to the clerk’s office by the sheriff, but the contrary is inferrable, from the whole case. This is, then, one of the cases in which very slight evidence of the absence of the lost paper would be sufficient, the more especially as there must have been extant on the records of the court, and the books of the clerk’s office, permanent evidence of all the constituent parts of the execution. It was not a variance between the allegations and the proof that in the declaration the fieri facias received by the sheriff, is described as an “execution,,” and the proof showed it to be an alias piurías fi. fa.; the former is a generic term which embraced the latter. Upon the affirmance of a judgment of an inferior court, by this court, the certificate of that fact, which the clerk of this court sends to the inferior court, is the record of the affirmed judgment upon which the execution issues. As already observed, the recital of the affirmed judgment in the execution, authorised the sheriff to collect the ten per cent, damages awarded against the defendants, and being proof of that fact as against the sheriff [319] superseded the necessity of producing the record of the judgment. It did not lie in the mouth of the sheriff to object, that the judgment of the plaintiff had been satisfied by the payment of another judgment obtained on the same bill. Having collected the money by the authority of an execution on a judgment of the plaintiff. he could not dispute his right to receive the money. The only remaining question is, whether the demand made of the deputy sheriff was sufficient. The facts stated are, that Dan-iell was the authorised deputy of the sheriff Hill, both before and after the latter left the State. That during the absence of Hill, his office was declared vacant, after which Daniell continued to act as his deputy, and collected the money on this execution. It is not necessary to consider how far the exparte, proceeding under the statute, by which the Governor was officially notified that Hill’s office was vacant, affected his right to the office, because, conceding that it vacated his office as fully as if his term had expired, he had the undoubted right to complete the execution of process which he had begun. The jury have found that Daniell, in the collection of this money, was his authorized deputy, and he must of necessity have also been invested with the power of paying it over. A deputy sheriff, invested with all the power of his principal to collect money by a fieri facias, and actually collecting it, cannot refuse to pay it to the plaintiff without putting his principal in default. Conceding then, that a demand was necessary, this was a sufficient demand, and as the authority of the plaintiff to make it, was shown, it was not necessary that it should have been in writing. Let the judgment be affirmed.