Ware v. Greene , 37 Ala. 494 ( 1861 )

A. J. WALKER, C. J.

This is a summary proceeding for a tax-collector’s default. There are six sureties on the bond, and the notice is issued against only four oí the sureties. The omission .of two -of-the sureties is not in any way explained. This omission is fatal to the proceeding. The proceeding .is summary, and. highly penal, and must be pursued in strict conformity to the law authorizing it. — Code, 2632," 2.628, 2596, 25-97'. The sections of the Code referred to show that the'proceeding authorized is against the tax-collector and. his sureties; but there is no authority to issue a notice against only a part of the sureties... It' may be that, under section 2597, judgment might be rendered as .to so many of the sureties as received notice, omitting those-who were not-served with notice. But neither that section; nor any other, authorizes the unexplained omission from the notice, by which the proceeding is instituted, of a portion of the sureties. The absence of an authority to proceed, as was done in this case, against a part of the sureties, omitting the others, is fatal to the -notice. — Gollier v. Powell & Bradley, 23 Ala. 579.

[2.] We deem it necessary tomotice only one other question presented by the record and that is, whether the statute of limitations is'available to the sureties of the tax-collector. This- is a proceeding by tbe State ; and it is an established doctrine, -that no statute of limitations can operate against the State, unless the State is expressly included! — Ang. on Lim. §§ 34, 35, 36; Sedgwick on Stat. and Con. Law, 105; U. S. v. Hoar, 2 Mason, 311. The statute prescribing a limitation as to actions against the sureties of public officers, does not include the State, and, ‘therefore, has no application to 'this case. — Clay’s Dig. 329, § 90. And it must be observed, that-the question of •the statute of limitations is in this case governed by the law as it was before the adoption of the Code. — Session Acts, 1853-4, p. 71.

Reversed and remanded.