Robbins v. Governor of Alabama , 6 Ala. 839 ( 1844 )

COLLIER, C. J.

The objection that the bond was not correctly described in the declaration, and therefore should have been excluded from the jury, is not well taken. It must be intended that James'W. Yarborough was one of the obligors, in the bond, and that “Jas W. Yarborough,” the name by which he executed it, was a mere contraction of his Christian name; for it is too well known not to be a matter of judical recognition, that Jas. is frequently written as an abreviation of James.

It is not shown by the second breach alleged, how the sheriff settled with the defendant in the fi. fa. the amount thereof; whether by the receipt of money, property or otherwise. The allegation being so indefinite, it would have been allowable for the’ plaintiff to show that the amount of the execution was not collected in money according to its mandate; but that the sheriff received property, or that- he was indebted to the defendant therein, and agreed to satisfy it for him. We need not consider whether any other mode of satisfaction than the payment of money,would be obligatory upon • the plaintiff in execution; for if he elect so to consider it, the sheriff will not be allowed to object in an action against him for the money, that he has not done his duty. This breach then being so general, and allowing such a latitude in the evidence, we cannot know but it was proved that the act by which the execution .was satisfied, was in itself a conversion of the money to the sheriff’s use. If this were the ease,, no demand of the money need to have preceded the institution of the suit. And under such circumstances, the sheriff, and of course his administrator, would be chargeable with interest accruing, not only after a demand, but ever since its conversion by the sheriff. The charge of the court as to the mode of computing the damages, was less favorable to the plaintiff than the rule as we have stated it. According to the law as laid down by us, interest might be calculated upon the interest due on the execution up to the time of the settlement between the sheriff and defendant in execution; but the instruction to the jury does not allow the interest to be compounded — it gives it alone upon the principal, from the rendition of the judgment. This, it will follow, from what we have said, was the proper period from which to make the computation. It can scarcely be necessary to adds that the measure of damages against the sureties of the sheriff, if liable at all, is the same as that recoverable of their principal.

No question arises upon the pleadings as to the liability of the defendants; if the facts alleged in the declaration are made good by proof. It is not insisted upon the record, that the proof does not authorise a recovery against them, unless • the supposed variance, which we have already considered, will be well founded. But the objection is, that the criterion by which the jury were instructed to estimate the damages, subjected the defendants to a "recovery, beyond which the plaintiff was entitled. Applying the prayer for instructions to the second breach; as the declaration contains but a single count, we have seen that the circuit court did not misapprehend the law — its judgment is consequently affirmed.