Magee v. Childers , 6 Ala. 196 ( 1844 )

COLLIER, C. J.

The act of 1812, in connection with that of 1829, enacts, that, on the forfeiture of any bond given to a sheriff or coroner for the forthcoming of property levied on by him in virtue of an execution, it shall be his duty to return the bond and execution within ten days thereafter, to the clerk of the court from whioli it issued, with the necessary endorsement thereon of for-feiture. And if he shall fail to comply with the provisions of the act in this respect, he shall, upon five days’ notice, be liable to the motion of the plaintiff in execution, to be made before the court from which the execution issued; and, upon the default of the sheriff or coroner being shown, the court shall enter judgment against him, and such of his sureties as shall have had the notice prescribed, for the sum due on the execution, with ten per cent, damages, and all costs'. [Clay’s Dig. 215, sec. 73.] By the statute of 1828, it is provided, where a claim is interposed to property levied on by execution, and a trial had, it shall be the duty of the jury, in all cases, when they find the property subject to the execution, to find the value of each article separately; and if the claimant shall fail to deliver the same, or any part thereof, when required by the sheriff, it shall be the duty of the sheriff, to go to the clerk and endorse such failure on the bond which he has returned, with a copy of the execution. Whereupon, the bond shall have the force and effect of a judgment, and execution shall issue against the claimant and his sureties, for the value of the property not delivered, with-interest from the date of the verdict. [Clay’s Dig. 21-3, § 64.] The attachment law of 1833 directs, that all replevin bonds, or bonds for the trial of the right of property, taken on the levy of an attachment, shall be lodged with the clerk of the court to which the process is returnable ; and should there bo any forfeiture of the condition of such bond, the officer taking the same shall forthwith enter thereon the necessary endorsement of forfeiture; and the clerk shall immediately issue execution on the same against all the obligors therein : which duties of clerks and other officers shall be performed under all the penalties and responsibilities prescribed in cases of the forfeiture of forthcoming bonds, and bonds for the trial of the right of property in other cases: Provided, That, for satisfactory cause shown, any of the judges may supersede such execution, either wholly or in part, &c. [Clay’s Dig. 57, sec. 11.]

In respect to a forthcoming bond, it is retained by the officer levying the execution, and the appropriate return thereon, if its condition has not been complied with, is, that it is forfeited. If property, to which a claim has been asserted, has been adjudged liable to the satisfaction of the plaintiff’s execution, a mandate issues for the sale thereof. In order to perform this duty, the sheriff must demand it of the claimant, and if it is not delivered, the appropriate return is made by an endorsement of the fact on the bond, viz: that its condition has been forfeited. But, in the present case, an execution issued to the sheriff requiring him to make the amount of the judgment, without informing him whether the suit had been commenced by attachment, or that a reple-vy bónd had been executed; and so far as the execution was concerned, his duty was to make the money thereon, if possible, or return that the defendant had no property within his county from which the money could be made. In the two former cases, the sheriff is informed that there is a bond, and the law points out his duty in regard to it; in the latter, he has no such information, unless it is communicated to him otherwise than by the execution. Even if the office of sheriff should continue to be filled until after the execution was issued, by the same individual who took the bond, it is not probable that, in a county where many suits were brought, he would remember the fact of its execution; much less probable is it, that one who succeeded him in the sheriffalty should possess such knowledge. True, it is competent for thó Legislature to charge a sheriff with such knowledge, and to inflict a penalty as the consequence of ignorance ; but to induce a court so to interpret its meaning, the legislative will must be expressed in terms so explicit and imperative, as to exclude construction. This, we believe, has not been done by the act of 1833. That statute requires the officer taking the bond to lodge the same with the clerk of the court to which the attachment is returnable. It then provides, that if the condition is forfeited, the sheriff, or other executive officer shall endorse the forfeiture thereon; but it does not prescribe at what precise time the forfeiture takes place, whether any, or what act is necessary in order to such a result. There is much, then, left to construction.

We will not undertake to say that the defendant in attachment and surety are not bound to take notice of the determination of that suit, and if the former be cast therein, to return the specific property without any demand thereof, and upon such default a forfeiture might not be endorsed ; although no express notice has been given, or demand actually made. This question need not be considered. But we think that the statute is not so inflexible as to require the sheriff, mero motu, to go the clerk’s office, obtain the bond and endorse it forfeited. If such were the proper construction of the act, as a prudential step, the sheriff should inquire in respect to every execution returned « no property found,” if the defendant’s property had been attached, and a replevy bond given. To answer this inquiry, the clerk would find it necessary to examine the papers in each of such cases. The inconvenience of such a practice, if there were no other objection, should incline us very strongly against a construction which superinduced such a consequence. Besides, would a mistake of the clerk, in giving the information, relieve the sheriff from liability ?

This view has led us to the conclusion, that the sheriff is not bound to make the endorsement which the statute contemplates, until he is informed, in order that he may do so, that a bond was taken and lodged in the clerk’s office. Even then, he must have reasonable time to perform this duty, and cannot be required to suspend all other business until it is done. What we have said is decisive of the case ; and, without considering the other questions raised upon the record, we have only to add, that' the judgment of the circuit court is reversed, and the cause remanded.