Taylor v. Powers , 3 Ala. 285 ( 1842 )

COLLIER, C. J.

A writ of error has been prosecuted in this case, for the purpose of revising a forthcoming bond taken by the sheriff of Tallapoosa, on levying a writ of fieri facias, upon the allegation, that the bond is defective, and does not au-thorise the issuance of an execution.

Without examining the errors assigned, we will inquire, whether a writ of error is the appropriate remedy in the present case.

Where a writ of error is resorted to, as a common law remedy, for the purpose of bringing a cause here, it can only be issued from this Court; for it is only in virtue of a statute that the primary Courts issue such writs. But even conceding that the proceedings are regular, the case is one which cannot be entertained. A writ of error lies only for the revision of the mistakes of Courts of record, and then only when the proceedings are according to the course of the common law. Woods v. Young, 4 Cranch’s Rep. 237; Nichols et al. v. Wolfersberger, 6 Serg’t & R. Rep. 167; ex parte Tarlton, 2 Ala. Rep. N. S. and cases cited.

It is declared by. statute, that it shall be the duty of the sheriff or coronel’, within ten days after the forfeiture of a delivery bond, to return the same, together with the execution, endorsed forfeited; and in five days after such return, the clerk shall issue an execution on the bond, against all the obligors therein. Aik. Dig. 171. Such is the effect of the bond, without any order or judgment of the Court thereon. If, however, it is defective, the obligors have a very plain and simple remedy. If the defect appears on the face of the bond, execution may be superseded ; and if the objection is one, that cannot be reached at law, chancery can afford adequate redress. But as there is no order or judgment of a Court of record complained of, the writ of error improvidently issued, and is therefore dismissed.