Garnett v. Roper

GOLDTHWAITE, J. 1. The statute directs that the same proceedings shall be had on claims interposed when an attachment is levied as may be had when the property is taken on a fi. fa. [Dig. 57, § 11; Yarborough v. Moss, 9 Ala. Rep. 382.] It is true, a statutory remedy is given in the proper pursuit of which the plaintiff is enabled to have execution immediately, on the bond, without a suit at law, and it is to the statutes which govern this peculiar remedy that the counsel for the plaintiff in error calls our attention, and under which it is quite probable all that he insists for may be required. [Dig. 213, § 52; 213, § 62, 64.] But these requirements have no place, when the plaintiff chooses, or is compelled to proceed on the bond by a common law action. In that event the condition of the bond is broken, by the failure to comply with its stipulations, and the party is entitled to such judgment as the forfeiture calls for. A slight consideration of the terms of the statutes which warrant the summary remedy, will show, that remedy cannot be enforced in all cases. Thus, by the first enactment referred to, it is made the duty of the sheriff, on the interposition of the claim, and the giving the bond, (< to return the property to the person out of whose possession it was takenand by the last, <! that if the claimant shall fail to deliver the property claimed, or any.jpart of it, when required by the sheriff, it shall be the duty of the sheriff to go to the clerk, and indorse such failure on the bond by him returned, with a copy of the execution, whereupon such bond shall have the force and effect of an execution,” &c. Now it is evident, if we consider the [845] last enactment as covering all cases, (which it is unnecessary to determine,) then there can be no requisition by the sheriff, of the claimant, when the latter isa non-resident of the State and possibly when without the county. If, under the first' enactment, the right is general to have execution on the return of the sheriff of the neglect or refusal of the claimant to deliver the property condemned, it would scarcely be contended the summary remedy would reach an administrator, as he would in that event have no opportunity to plead the statute of non-claim, the insolvency of the estate, or indeed any other matter of defence growing out of the administration. The recent decision of Hornbuckle v. Sims, at this term, settles that the summary remedy cannot be pursued on bonds of this description against an administrator, and in this view the party is remediless unless he can have the common law action on the bond. When driven to this action, we are clear that it rests with the defendant to show that the condition of the bond has been complied with. 2. It is supposed however, that the declaration should contain the allegation of a demand by the sheriff of the principal obligor, or of his personal representative, as an allegation that these had notice of the determination of the claim suit, a$ otherwise they could not be prepared to deliver the property. In our judgment this is a condition which requires the party at his peril, to know of the determination, and therefore no averment of notice or of demand, was essential. 3. It maybe true that the plea of non est factum is the or-> dinary general issue to an action on a bond, but the difficulty does not occur in this case, which the plaintiff in error fears may be found to exist if this plea cannot be pleaded uni less verified by oath. If, as supposed, there is no judgment in the claim suit we apprehend there would be no difficulty in putting this matter in issue by a plea of mil tiel record; if the judgment as averred be exact, and if no such averment is found in the declaration, it might be matter of consideration whether, for this defect, a demurrer would not lie. In the present case, the averment is distinctly made, and we can see no reason which will warrant the conclusion that bonds with condition, are intended to be excepted from the statute which requires pleas of non est factum to be verified. [846] 4. The other pleas are clearly bad, for the reasons we have previously shown, in considering the declaration and that the principal obligor is a bankrupt, has no effect to discharge his sureties. Judgment affirmed.