Governor v. Powell

GOLDTHWAITE, J. 1. Independent of the objections taken to the form of this plea, it is insisted it is no answer to the declaration, inasmuch as the defence rests on the circumstance, that payment of the principal, interest and costs, was made to Hall after obtaining the judgment and before the commencement of this suit. It consequently assumes that payment at any time after the judgment will prevent the party supposing himself aggrieved from suing the sheriff and his sureties for the omission to use due diligence with respect to executions in his hands. There is a marked distinction between the assertion of satisfaction after the breach of duty by the officer, and of the same matter before the breach. In the first instance, the satisfaction is necessarily a discharge of the action for the breach of duty, as the party is not entitled to have two satisfactions, and the payment, or rather the acceptance of the principal debt, inures as a satisfaction. This is the principle which governs several of our decisions. Thus in Lockhart v. McElroy, 4 Ala. Rep. 572, it was held the payment to the plaintiff by the sheriff was the discharge pro tanto of a judgment recovered against the coroner for a neglect of duty with respect to an execution on the same judgment. And in Freeman v. Womack, Ib. 538, we considered the acceptance by the plaintiff of the principal sum from the defendant in the suit, after the breach of duty by the sheriff as a bar to a rule against him for his neglect. To the same effect is Gary v. Boykin, 7 Ala. Rep. 154. But it is a different matter to permit a sheriff to defend his breach of duty, by showing the plaintiff was paid before the breach complained of. To allow this would in every case constitute the sheriff a judge to determine between the parties that the execution was wrongfully issued, and to relieve him from the consequences of his neglect, upon his showing the plaintiff was paid. A similar defence was attempted to a rule, in Crenshaw v. Harrison, 8 Ala. Rep. 312, and with reference to which we there said, that, generally speaking, the sheriff is a mere executive officer, and is bound to pursue the mandate of the process in his hands, unless otherwise instructed [547] by the plaintiff on the record,'pr by his attorney. Beyond this, it is possible he may be permitted to recognize the interest of a stranger, if that interest is admitted by the plaintiff or his attorney, but he is not authorized to constitute himself a judge to determine questions of conflicting interests. The previous case of Mason v. Watts, 7 Ala. Rep. 703, was determined on the same principle. It may be here remarked that we are not now considering whether such a payment as we have spoken of might not enter very materially into the case, when the amount of damages is to be ascertained in a common law action. In such a proceeding it is highly probable the party is entitled to recover only to the extent of the injury sustained whilst in a rule under our various statutes, it would seem that no such ■ discretion is vested with the courts or juries. From what has been said, the inference will be readily drawn, that we consider the plea bad, for the reason that the payment is not alledged as having been made after the breach of duty, by the sheriff, as well as previous to the commencement of the suit. 2. We might perhaps consider the form of the plea, but we deem that unnecessary, in the present condition of the case, as it can. scarcely be possible the court below would ever let in evidence under a plea when payment was averred generally which would not be admissible if the facts were specially set out, and in this view it admits of question, whether the plea under our liberal notions of pleading, is not sufficiently formal, although it does not show by whom the jpayment was made, or that it was so accepted. If made by one without authority, and if not in legal effect a payment, the fact would scarcely get to the jury, even under this plea. 3'. But the defendants insist, if the plea is overruled, the demurrer shall be referred to the declaration, which is said' to be bad, in showing the transfer to Hall, of the right of action by the Bank. We think the question supposed to arise, is not presented by the pleadings, which merely disclose that the suit is prosecuted for the use of Hall, and it seems infer-rable also, that the suit of the bank was for his benefit in the first instance. Be this as it may, there is nothing to. show the [548] transfer of the right of action, even if that was objectionable in a case like this. For the error in sustaining the plea, the judgment is reversed, and the cause remanded.