Allen v. Hays , 1 Stew. 10 ( 1827 )

JUDGE WHITE

delivered the opinion of the Court.

An execution, issued at the instance of Hays, had been levied on a slave as the property of John Cox. Lynden Crocker claimed the slave, and entered into bond as required by the statute, with Allen his security, conditioned to return the slave, &c. A trial of the right of property being had. it was adjudged to be in Cox, the defendant to the execution. Crocker having failed lo deliver the slave as required by the condition of the bond, the sheriff filed the bond in the clerk’s office of Dallas Circuit Court, (from which the execution had issued,) but without any return endorsed. Hays, having given ten days notice, recovered a judgement against Allen, as security of Crocker, by motion before Dallas Circuit Court.

A bill of exceptions was taken, the matter of which is here assigned as error.

The statute ^a requires that if the property be not delivered to the sheriff, he shall forthwith return the bond to the clerk’s office, &c. We believe that a technical return, and not a mere filing of the paper in the clerk’s office, was here meant. That it is the duty of the sheriff to endorse on the bond so returned, the failure to deliver the property according to the condition. This not having been done, the Circuit Court erred in awarding execution against the security, and the judgement must therefore be reversed.

a Laws Ala. 311, sec. 7.