Patterson v. Gaston , 17 Ala. 223 ( 1850 )

DAK.GAN, C. J.

An execution issued from the Circuit Court of Madison in favor of the plaintiff against the sheriff, and was placed in the hands of the defendant as coroner, who failed to return it as required by law. The plaintiff moved the Circuit Court for judgment against him for his default. The coroner objected to the motion by way of demurrer to the notice given him of the intended motion, and insisted that he was not liable to this summary remedy. The court gave judgment for the defendant, and the plaintiff brings the cause here by writ of error.

The only question is, whether a coroner is liable to this summary remedy to recover the penalties given by the act of 1833, for his defaults in the execution of process. By the act of 1807, (Clay’s Dig. 217,) it is provided that if a sheriff, coroner, or marshal of a corporation shall fail to return an execution that shall have come to his hands to the office from whence it issued on or before the return day thereof, it shall be lawful:for the court, on the motion of the party injured, ten days previous notice being given, to fine such officer in any sum not exceeding five dollars per month for every hundred dollars contained in the judgment or decree on which the writ issued, counting the time from the return day of the writ. The same act also imposes penalties on sheriffs and coroners for failing to pay over money collected by them, and gives a remedy by motion. By the act of 1819, (Clay’s Dig. 205-6,) different penalties are prescribed against sheriffs, die amount being increased, and the same remedy given for their recovery. This act, however, does not include coroners. By the act of 1833, (Clay’s Dig. 159,) it is enacted that the coroner shall execute all process when the sheriff is a party in interest, and perform all the duties of sheriff when from any cause he may be incompetent to act as such; he shall also be keeper of the jail when the sheriff is imprisoned ; and for failing to perform any of the duties prescribed, he shall he liable to all the penalties prescribed against sheriffs for similar defaults. This act clearly subjects coroners to the same penalty for failing to return an execution that the act of 1819 imposes on sheriffs for similar defaults, but does not prescribe the remedy by which it shall be enforced, and hence it is contended that the action of debt is the only remedy bjr which the penalty can be recovered. We are however clearly of the opinion that the penally may be recovered by motion. The remedy given by the act of 1807 against coroners has not been taken away by any subsequent act. It is true the penalty has been increased by the act of 18-33, but this act contains no repealing 'clause, and consequently only repeals so much of the act of 1807 as is inconsistent with its provisions. It is true that if the two statutes are so repugnant to each other tliat they cannot stand together, the latter will repeal the former; but as the law does not favor the repeal of statutes by implication, so far as the two acts are consistent with each other and can stand together, they should be sustained by the court. — Kinney v. Mallory, 3 Ala. 626; Wyman v. Campbell, 6 Porter, 219. The remedy by motion is given by the act of 1897, to recover the penalties imposed on coroners for certain defaults. These penalties were merely increased by the act of .1833, but this act contains nothing repugnant to the existence of the remedy given by the act of 1307. The penalties given by the two acts are different and inconsistent with each other, but that portion of the former act which gives the remedy and proscribes the mode of proceedure is entirely consistent with the latter, and by no principle of construction can we hold that such portions of the former act are repealed, and not being repealed, resort may be had to the remedy prescribed by the act of 1S07, to recover the penalties given by the act of 1833. The act of 1833 does nothing more than increase the penalties, leaving the remedy the same.

Let the judgment be reversed and the cause remanded.