Branch Bank at Mobile v. Broughton , 10 Ala. 147 ( 1846 )

ORMOND, J,

Neither of these objections can prevail. The sureties of the sheriff are informed by the notice, that a motion will be made against them as such, for the omission of the sheriff to return a ft. fa.; the time when the execution issued, and its return day being set forth. A notice to certain persons, as the sureties of a sheriff, that they will be proceeded against by motion for his default, is the usual and customary form in such cases, and it never has been considered necessary to alledge in the notice by way of averment, that they were in fact the sureties of the sheriff, when the default took place. If they do not appear, the plaintiff must establish the fact of their suretyship at the time of the sheriff’s default. If they appear and do not put the fact of their surety-ship in issue, it is an admission that they are properly charged as such. The notice in this case informed them, that they were sued in that capacity, and by demurring to it they admit the fact to be so.

The averment of the notice, that the ft. fa. was received by the sheriff in sufficient time to return it to the next succeeding term, is in our opinion sufficient. If a precise day had been alledged, the plaintiff would not have been required to prove it, but might have shown a reception by the sheriff, at any other day before the return day of the writ. To hold this averment insufficient, would be to require greater certainty in these notices, than is necessary in a declaration. There is nothing in the argument, that it should have been •averred, that the execution had been received by the sheriff a sufficient length of time before the return day, to enable him to make the money according to its mandate. This proceeding is not for a failure to make the money, but for a failure to return the writ. The object of the plaintiff may have been to create, or continue a lien, and certainly the sheriff cannot frustrate this right by omitting to return the execution, although he may not have received it in time to make the money.

We cannot distinguish this case from Price v. Cloud, 6 Ala. 253, where it was held, that it was not necessary to al-ledge a demand of the sheriff, on a particular day, but that an allegation, that “Lhe had failed to pay over on demand,” was sufficient.

The judgment must be reversed, and the cause remanded.