Crenshaw v. Harrison , 8 Ala. 342 ( 1845 )

GOLDTHWAITE, J.

Without expressing any opinion, whether Cook was a competent witness for the sheriff under the circumstances disclosed, we think the facts in evidence furnished no excuse to that officer for his omission to make the money. In Mason v. Watts, 7 Ala. Rep. 703, we held that the sheriff could not,show a defence of his omission to make the money, that the plaintiff had released one of the defendants. Generally speaking, the sheriff is a mere executive officer, and is bound to pursue the mandate of the process in his hands, unless otherwise instructed by the plaintiff upon the record, or by his attorney; beyond this, it is possible he may be permitted to recognize the interest of a stranger, if that interest is admitted by the plaintiff on the record, or his attorney. But he is not authorized to constitute himself a judge, to determine questions of conflicting interests ; to permit him to do so would lead to the greatest abuses. In the present case, it is not pretended that the plaintiff, or his attorney had given any instructions to the sheriff which authorized him to recognize the agreement with Cook, as an executed contract. On the contrary, it may be inferred, that the sheriff was informed of the assignment to Moseley, whose instructions it is quite probable, he afterwards was bound to follow.

The result of these considerations is, that the instructions given to the jury are erroneous.

Judgment reversed and remanded.