Sample v. Royall , 4 Ala. 344 ( 1842 )

GOLDTHWAITE, J.

We are clear in the opinion that this judgment cannot be sustained. The act of 1821, under which the proceedings were instituted, is in these words— “It shall be the duty of the sheriffs of the several counties in this State to return all writs and executions to the Clerk’s office from which they shall issue, at least three days previously to the term of the Court to which they shall be returnable; and if any sheriff shall fail to return any writ or execution according to the provisions of this act, he shall be liable to all the penalties provided by the laws now in force for' failing, to return any writ or execution to the first day of the term of the Court in which they are returnable. [Digest, 279, §119.]

This act does not give any new remedy against the sheriff; the sole change intended was in the return day of writs and executions, which was provided to be three days previous to, instead of the first day of, the Court.

We cannot perceive that there is any foundation, in the terms used by the act, for the supposition that the legislature intended to give the same remedy on writs as then existed for failing to return executions; to construe the act in this manner would be to give a remedy which was not authorized by the then existing laws, .and consequently would make the sheriff liable to an additional penalty, in direct opposition to the words of the act.

Let the judgment be reversed.