Hallett v. Lee , 3 Ala. 28 ( 1841 )

ORMOND, J

The statute which authorises a suggestion to be made to the Court, that the amount to be collected on an execution, could have been made by the sheriff “by due diligence,” requires the Court, “ forthwith, to cause an issue to be made up to try the fact.” The counsel for the plaintiff insists that, as the issue must consist of a denial by the sheriff of the facts alleged in the suggestion, that no plea should be received.

The sheriff discharges himself from responsibility, by showing due diligence, and to enable him to do this, nothing more is necessary than to traverse the facts contained in the suggestion, and this was doubtless the issue which the act contemplates. But if the defence of the sheriff consists of new matter, or matter in avoidance, a mere denial of the allegations of the suggestion would not be sufficient, and he must therefore be allowed to make' his defence by plea.

But the plea in this case does not traverse the facts of the suggestion, nor does it state any fact which can be received as an excuse for the want of due diligence.

The only fact stated in it is, that the execution was in fact levied about three weeks before the return day thereof, that the property was not delivered ©n the day appointed for its sale, and that the bond taken for its delivery has been returned by him forfeited. No excuse whatever, is offered for retaining the execution nearly five months without a levy ; and we must therefore infer, that during the whole of that period there was no obstacle to a levy. The plea then, is in fact, a distinct admission of the charge in the suggestion, that by due diligence, the money could have been made, and it is difficult to conceive how such a plea could be seriously opposed by counsel, or gravely entertained by the Court. It has been remarked previously by this Court, that press of business is no excuse for a sheriff in failing to make money on an execution. In proportion to the amount of business in his hands; are the emoluments of his office, and it is his duty to provide himself with a sufficient number of competent deputies to enable him to execute the mandates of the Court, within the time prescribed by law.

The judgment of the Court below should have been for the plaintiff, and it is therefore reversed, and the cause remanded.