Gary v. Boykin

GOLDTHWAITE, J. — 1. So far as the questions raised in this case are connected with the pleas, We think they are concluded by the case of McClure v. Colclough, 5 Ala. Rep. 65, when we held, that if the plaintiff’s attorney, or an agent properly authorized, induces the sheriff by any advice or direction, to delay the return of an execution, this would constitute a defence to a rule against the sheriff and his sureties. We also said in that case that the plaintiff had an undoubted right to control his own process, and relieve the sheriff from [156] the necessity of returning it when not executed. Here, the pleas are, that the plaintiff excused the sheriff from making any return of the execution upon which this motion is founded. 2. We think also that the other questions are covered by the decision in Freeman v. Womack, 4 Ala. Rep. 541, where a majority of the Court held, that a motion against the sheriff, upon a suggestion that the money could have been made by the use of due diligence, could not be maintained after the acceptance of the principal sum by the plaintiff. For such neglect the statute gives ten per cent, damages; neither these nor the costs were paid by the sheriff; but the Court considered the right to the damages as not being the principal matter provided for by the act; and therefore they could not be recovered after the principal had been paid. In relation to the eos.ts, it was said, the plaintiff was not in a more favorable position, as they were due to the officers of Court. . Independent of this decision we think the several statutes, authorizing rules of a summary nature against the sheriff are all intended to provide for the security of suitors, and that they do not apply to officers who seek to recover costs only. In most cases the costs are distributable to many different persons, and probably it would not be tolerated, that separate motions should be maintained by them, even if they were clearly provided for by the terms of the act; but however this may be, we are well satisfied that they have no authority to use the plaintiff’s name, either severally or collectively for this purpose. It is manifest according to these views that the Court erred. Its judgment is therefore reversed, and, if desired, the cause lyill bp remanded.