Broughton v. President of the Bank , 6 Port. 48 ( 1837 )

COLLIER, C. J.

On the eighth day of September, one thousand eight hundred and thirty, the defendants in error, by their attorney, issued two notices of like tenor — the one directed to the sheriff of Monroe, and the other to the sheriff of Dallas ; in each of which it is stated, that Jesse C. Farrar, late sheriff of Monroe, had on a fieri facias, (particularly recited,) directed to and received by him from the Circuit court of Dallas, against the goods, &c. of James Knight, and others, collected the amount required to be made by its mandate. In the notices it is alleged, that Farrar “ had failed to pay over as he was in duty bound to do,” the money thus collected.

It is further stated, that Leonard Scott, Abel Far-rar, Joseph Nettles, senior, Nathaniel Broughton, Daniel D. Shumate, James Wade, and Daniel McIntosh, were the securities of Farrar, in his official bond, and that a motion would be made against them and their principal, at the next succeeding term of the Circuit court of Dallas, to be holden on the fourth Monday in September, one thousand eight hundred and thirty, to recover a judgment for the default of the latter, in failing to pay over the money collected on the fi.fa. against Knight.

Though the sheriffs" to whom these notices were respectively directed, returned them executed — each on one or more of the sureties, yet no proceedings were thereupon had, at their return term. On the twenty-second of March, one thousand eight hundred and thirty-one, a counterpart of the previous notices was issued to, and executed by the sheriff of Monroe, on Jesse C. Farrar. At its return term in April, one thousand eight hundred and thirty-one, a judgment by default was rendered against him, and his sureties, except Joseph Nettles, and a writ of inquiry awarded. This judgment, in the spring term of one thousand eight hundred and thirty-two, was set aside, and leave given to plead to the merits.

In the record, we find the following: “ Non assump-sit — nil debit — general issue — in short by consent.— G. and Goldthwaite. Issue — Pickens Sf Calhoun, plaintiffs’ attorneys.” “ There seems to have been a pen drawn through these pleas — Clerk.”

The cause was then continued from term to term until the spring of one thousand eight hundred and thirty-four, when Wade, one of the defendants below, craved oyer of the bond and condition, and pleaded non est factum, verified by special affidavit: to which plea, defendants demurred, and their demurrer being overruled, no replication was offered, and judgment final was rendered for Wacle, and against the plaintiffs in error, for a failure to plead; and they now seek a revision of that judgment here

The notices issued in September, one thousand eight hundred and thirty, must be placed entirely out of view. They were preparatory to a motion to be made, at a term of the Circuir court, next succeeding their issuance ; and to make them available, it was necessary that they should have been produced, and the motion indicated by them, submitted to the court, even if it were intended to continue it until a future term. But no proceedings being then had, these notices must be taken to have spent their force, and could not, at an after term, furnish a warrant for the exercise of jurisdiction by the court.

The case must then be considered, with reference alone to the notice of March, one thousand eight hundred and thirty-one — which was executed on Jesse C. Far-rar. Under the statutes of one thousand eight hundred and nineteen, and one thousand eight hundred and twenty-six, a notice to the sheriff, authorises a judgment against him and his securities, for money collected on a fi.fa. and not paid over on demand duly made. The latter act goes farther, and entitles the plaintiff not only to a judgment against the sheriff, and his securities, but against any one or either of them.^*

In the case of Neale, et al. vs. Caldwell,^* it is said — • “ It has been heretofore determined by this court, in the case of McWhorter, et al. vs. Marrs,^† that notice to the sheriff is sufficient to authorise a judgment against him, and his securities, in a case of this kind.” And speaking of the act of one thousand eight hundred and nineteen, the court say — “ This statute admits of but one construction, and it is, that proof of notice either to the sheriff or his securities, is sufficient to entitle' the plaintiff to a judgment against all the obligors in the sheriff’s bond.

A notice to the sheriff, being sufficient to authorise the rendition of judgment against his securities, for a default in paying over money collected by him, let us inquire, whether the proceedings in the case at bar, be conformable to law. It can hardly be pretended, that any one of the defendants in the motion, except Wade, was before the Circuit court. It does not appear who moved to set aside the judgment by default, nor who inteiqDOsed the pleas “ non assumpsit, nil debit, and the general issued It is, however, but a just inference, that Wade was the only party who defended; inasmuch as there is nothing in the record to shew, that any one else appeared. And even if it were doubtful for whom “ non assumpsit, 8$c.” we^e pleaded, no inference could be made to the prejudice of the plaintiffs in error; as it seems from a memorandum of the clehk, that they had been erased — which, if necessary, we would presume to have been done by leave of court.

The plaintiffs then, never having appeared to contest the motion before the Circuit court, it is competent for them to object to the sufficiency of the notice, or point out other irregularity in the proceedings. The notice is intended to subsei've the two-fold purpose of bringing the party into court, and of advising him of the complaint against him. And according to the construction hitherto placed upon our statutes, should contain a statement of every thing to be proved, in order to a recovery.

The .statutes regulating motions against a sheriff, and his securities, for money collected by the former, require that a demand should be made of the sheriff, before he is liable to such a proceeding. In the case of Barton et al. vs F. and E. Peck,^* which was a motion against the sheriff and his securities, for the failure to pay over money collected on a fi. fa., the court remark, that “ There is no doubt, it is material to prove a special demand, and the time at which that demand was made; and wherever a demand or notice is material to be proved, it should be’averred in the declaration; it should also be averred by whom this demand was made.”

In the case before us, the notice does not state that the money was demanded of the sheriff, — nor does it contain any thing which is equivalent to such statement. And the plaintiffs not having done any act which can preclude an exception to the notice, the case just cited, is conclusive to shew, that the judgment must be reversed.

Whether, in prescribing the requisites of a notice, the court should have laid down the rule with so much strictness, as to require a particular allegation of every fact,.material to be proved, is a question which we are not inclined to consider. It is due to the certainty of the law, that we should sustain the opinions of this court, unless inconvenience or injury would result from such a course. In the present case we can discover none.

We decline examining the many other points raised in the argument, as the view already taken, disposes of the entire case.

GOLDTH WAITE, J. not sitting in this case..

* Aikin’s Dig. 1st ed. 164 and 174.

* 3 Stewart’s Rep. 134.

† Ala. Reps. 376.

* 1 Stewart & Porter, 486.