Evans v. Billingsley's Adm'r , 32 Ala. 395 ( 1858 )

STONE, J.

Our decisions clearly settle the following principles :

1. If a sheriff, having an execution in his hands for collection, himself pay the plaintiff his demand, this payment gives the sheriff no right of action against the defendant, unless the defendant had previously requested him to make such payment, or, after it was made, •adopted the act, by insisting on it as a satisfaction of the execution.

2. That a previous request by the defendant, or subsequent adoption, as above supposed, clothes the sheriff with the right to sue the defendant, and recover the money, as so much money paid at the request of the defendant. These principles have been too long recognized and enforced, to be now open to controversy. — See Mooney & Black v. Parker, 18 Ala. 708, in which the previous decisions are collated; Poe v. Dorrah, 20 Ala. 288.

In the case of Saint v. Ledyard & Co., 14 Ala. 244, the sheriff had returned the execution satisfied; and his sureties were forced to pay the money to the plaintiffs. A part of the money had not in fact been collected by the sheriff; and the sureties, in the name of the plaintiffs, moved the court to vacate and set aside the return of satisfaction. Notice was given to the defendant, Saint; and, on the hearing, the court granted the motion, and vacated the return. In considering whether the sureties had the right to recover the money so paid by them, this court said, “ they [the sureties] were subrogated to all the rights of the former, [the plaintiff,] both against the sheriff and Saint.”

We think the principle above asserted, as well as the reason on which it rests, will authorize the sheriff’s sureties, who pay off an execution, to recover of the defendant, in every case in which the sheriff himself, having paid the money, could recover. The question arises, then, could the sheriff Chandler, if he had paid the money to the plaintiff under the circumstances disclosed in this record, have recovered it out of the defendant Billingsley ? We will hereafter consider the question, what was the particular default of the sheriff, for which the bank recovered the money of his sureties.. For the present, we will assume it was either for not making the money, or for not returning the execution.

The agreement between Billingsley, the defendant in execution, and the agent of the bank, was, that the bank should hold up its execution against Billingsley, until an effort should be made to collect the money out of the sheriff and his sureties; and it was certainly one of the terms of this agreement, as the testimony discloses, that if the bank recovered its demand from the sheriff and his sureties, - then it would not further pursue Billingsley. As strong confirmatory evidence that this was the agreement, if such confirmation be necessary, we find that the bank, after obtaining its money, has rested satisfied, and has made no further effort to coerce payment from Mr, Billingsley. The testimony tends to show, that this agreement was entered into at the instance, and for the accommodation of Billingsley; and that he employed counsel to prosecute the suit, and fasten the liability on the sheriff and his sureties. From the testimony recited in the bill of exceptions, we think the jury might have found the above to be the facts.

In Cross v. Cheshire, 7 Exch. 43, the court held, that “ if a person who owes a debt to A., by any contrivance causes B. to pay it, the action for money paid will lie to recover back the amount, and the machinery by which the mischief was brought about is utterly immaterial.” See, also, Addison on Contracts, (ed. of 1857,) p. 57.

If the above facts be found by the jury, we do not hesitate to say, that they make out a case of payment at the instance, and with the approbation of the defendant, Billingsley. In fact, the effect of his agreement with the bank agent was an adoption by him iu advance of the payment to be made by the sheriff and his sureties. These facts, if they exist, bring this case clearly within the principle asserted as No. 2, at the opening-of this opinion; and, ■ consequently, the charge of the court, which instructed the jury to find for the defendant, was erroneous.

2. The transcript in this case does not contain the record of the suit which resulted in a' recovery against Chandler and bis sureties. The bill of exceptions informs us, that it was a suit on his official bond, “ to recover damages for the default of said Chandler, as such sheriff, in failing to make the money, and in foiling to return a certain execution,” &c. ' This execution was in favor of the Branch Bank at Mobile, and against Billings-ley. The record does not inform us, .whether the declaration on the sheriff’s bond contained a breach for not paying over money collected, or any other breach, save the two above rioted. If the declaration did contain such third breach, for not paying over money collected, then the real ground of recovery will become a material inquiry. If the recovery from Evans was for not paying over money collected, of course no action will lie at his instance to recover it back from Billingsley. If, however, the recovery was either for not making the money, or for not returning the execution, then the case is within the rules above laid down.

The pleadings, in suits at law, are frequently so general, or stated in so many varying.forms to meet the emergencies of the proof, that the record entirely foils to identify the precise subject of contestation. In such cases, parol evidence is always admissible in aid of the record, to show the precise matters that were in proof, and that were submitted to the jury for their decision. The limit to the rule is, that such’ proof must be within the scope of the issues found in the suit, about which the proof is offered. The question is one of identification; and hence, all testimony, which tends to show what the jury did in fact pass on, should be received in evidence. The proof before the former jury, and the charge of the court, are evidently material and pertinent on such an inquiry. — Smith v. Kelly, 2 Hall’s N. Y. Rep. 217; Marsh v. Pier, 4 Rawle, 273; Ferrell v. Underwood, 2 Dev. 111; Gardner v. Buckler, 3 Cow. 120; Wood v. Jackson, 8 Wend. 9; Phil. Ev. (by Van Cott,) part 2, pp. 14, 15 ; ib. 164; Chamberlain v. Gaillard, 26 Ala. 504.

When the issue or issues are broad enough to admit of proof concerning two or more separate demands or causes of action, it is also permissible to show that no proof was offered as to one or more of such demands. — McLaughlin v. Hill, 6 Ver. 50; Bridge v. Gray, 14 Pick. 55; Young v. Fuller, 29 Ala. 464; Rakes v. Pope, 7 Ala. 161; Lawrence v. Hunt, 10 Wend. 80; Seddon v. Tutop, 6 T. R. 607; Snider v. Croy, 2 Johns. 227; Phillips v. Berick, 16 Johns. 136.

In this case, we are unanimous in the opinion, that if the declaration, in the suit against Chandler and his sureties, contained an averment that he (Chandler) had collected the money on the execution against Billingsley, and failed to pay it over on demand, it was competent for the plaintiff in this action to show that no proof was made on the former trial bearing on this averment, and that in fact no contest was had on that issue before the jury trying that ease. The result of such proof, if believed, would be to show that the verdict of the jury against the sheriff and his sureties was based either on a failure to make the money, or a failure to return the execution. 1 Greenl. Ev. §§ 528, 529.

If, however, the declaration contained the three breaches, for not paying over money collected, for not making the money, and for not returning the execution ; and if proof was offered and contest had upon each of these three issues, we think this will present a graver question than the one last above considered. This question has not been argued, and we forbear now to intimate an opinion upon it. — Chamberlain v. Gaillard, supra.

' It is contended for appellee, that there was no proof that the bank had ever received its money. The bill of exceptions tends to show the contrary. At all events, there was enough proof on this point to justify its submission to the jury.

Por the error in excluding the evidence, and in the charge of the court, the judgment of the circuit courtis reversed, the non-suit set aside, and the cause remanded.