Pope v. Stout , 1 Stew. 375 ( 1828 )

JUDGE PERRY

delivered the opinion of the Court.

The errors assigned are, 1st. That the Court below erred in arresting the judgement on the reasons assigned therefor. 2nd. That judgement should have been given for the plaintiffs on the verdict of the jury. In considering the first assignment, the attention of the Court is called to the reasons filed for the arrest of judgement in the Court below ; the first of which has been settled by a previous decision of this Court, unless a distinction exists in regard to persons, and the situation they occupy in society as regards their relative rights to a trial by-jury, for the ascertainment of facts in a court of justice. It is believed that no such distinction exists, and that the various officers whose negligence or other cause subject them to a summary proceeding by motion, have the same right to have a controverted fact tried by a jury, as any other citizen has who may be brought into Court by its ordinary process, when a material issue is tendered, involving matters in pais. In the case of the Tombeckbee Bank against the State, ^a it was decided by this Court to be error in the Court below, to refuse the claim of the corporation to a trial by jury; that was a proceeding by motion to recover a forfeiture incurred Under the revenue law.

The two last reasons in arrest of judgement may be included in the last assignment of cror, which brings to view the extent of a coroner’s liability for'failing to re-' (.um a J¡, j'a, placed in his hands for collection. The liability, if any is incurred, is created by the thirty-first section of an act passed m 1807, ^a which provides that when any writ of execution or attachment for not per-r , . , , ,, . . forming a decree m chancery, shall come into the possession of any sheriff, coroner or marshal of a corporation, and he shall fail to return the same to the office from whence it issued, on or before the return day thereof, it shall be lawful for the Court, ten days previous notice being given, upon motion of the party injured, to fine such sheriff, coroner or marshal, in any sum not exceeding five dollars per month for every hundred dollars contained in the judgement or decree on which the execution or attachment so by him detained was founded, and so in proportion for any greater or lesser sum, counting the aforesaid months from the return day of the execution or attachment, to the day of rendering judgement for the said fine.” From this act it is obvious that the legislature intended to give the Court before which the motion should be made, a discretionary power in fixing the amount of fine which the delinquent officer should pay to the party injured by his negligence. The exercise of this discretion is alone the act of the Court, uncontrolled by the verdict of a jury, as to the amount of fine so to be imposed. W hen they had tried the issues submitted to them, they had done every thing they were called on to do ; and the Court, from the circumstances of the case, are left to the exercise of that discretion, which it is contemplated by the statute the Court should exercise for the benefit of the injured party. The Court below not having thought proper to impose any fine upon the defendant, but having arrested the judgement, it is presumed there was not sufficient evidence to authorize it, or at least that the plaintiff had sustained no injury; it being the exercise of exclusive original jurisdiction, this Court cannot control it.

It is also the opinion of the Court, that as the record shews that the execution was directed to the sheriff, who was the defendant in the same, the coroner could not legally execute it; that whenever the sheriff is a party to a suit, or otherwise interested, the process must be directed to the cotoner. The judgement must therefore be affirmed.

ffuDGE White having presided below did not sit»

a Minor's Ala. Rep. 425.

a il Laws Ala. 303.