McGehee v. Gewin

CHILTON, C. J. —

We know of no principle of law, which enjoined it as a duty upon G-ewin, the principal sheriff, to notify the sureties of his deputy of the default of the latter, previous to the institution of an action against them. The creditor must not actively interfere to the prejudice of the surety of his debtor, but he is not bound to keep the surety advised of facts, a knowledge of which may be necessary for his protection, The surety must be on the alert, and protect himself. The creditor may repose upon the indemnity which their liability to him furnishes for the default of his deputy. He may remain passive, so that he brings his suit within the period required by the statute applicable to such cases. If the securities desire to protect themselves, and provide against liability which they may have incurred, it was their privilege to have the account taken, and to see that McGehee did not leave the country full-handed without paying the amount for which they were bound. It follows, that the condition of McGehee at the time he left this State, and since, had nothing to do with the liability of his sureties, and the evidence relating to it was properly excluded.

2. The charges which the court refused to give appear to be based upon the idea, that the payment by the principal sheriff of the amount of the execution to the plaintiff therein, while such writ is in full force in the hands of the deputy, satisfies such demand, and deprives the deputy of all legal authority to collect the same; and having no authority to collect, his sureties are not bound to pay the money thus collected. This is not a correct view of the effect of such payment. If the plaintiff in execution receives payment from the sheriff, the defendant in the execution may set up such payment, and have satisfaction entered. But this is a privilege which is personal to him ; he may waive it, and allow the execution to proceed, and the money to be made; and if he does so, it is not for the deputy who collects the money to say, “ I had no authority to do soneither can his sureties set this up. If the defendant in the execution interferes so as to prevent the sheriff from proceeding for his indemnity, by reason of the payment which has been made by the latter, and sets it up as a satisfaction, he becomes liable to the sheriff for the amount thus paid, in assumpsit. — 13 Ala. 357. But if he waives the payment, and permits the execution to proceed, no one else can take advantage of it. — Fournier v. Curry, 4 Ala. 321; Mooney & Black v. Parker, 18 ib. 708, where the cases relating to this subject may be found collated.

3. As to the charge, which proceeds upon the idea of a tender of the money by the deputy to the principal sheriff, &c: We think the court properly refused it — first, because it was abstract ; the proof being, not that the money was tendered, but merely that the deputy “proposed to pay it to Mr. Gewiu, wlio told Mm that be (the deputy) would see the persons it was going to, and that he could pay it to them.” This, in legal contemplation, was no tender, nor was it, as the charge asserts, “ permitting, the money to remain in the hands of the deputy ” after declining to accept the money on a tender; but it amounted to a direction to the deputy to pay the money to the persons entitled. It was a part of the deputy’s duty to do this, upon the direction of the principal sheriff — a duty covered by the bond sued on; and if he failed to do this, and retained the fund, in consequence of which the sheriff had to pay it to the parties entitled (for this evidence would seem to imply Gewin had not then paid the money to the parties entitled to it), the latter had the right to recover, and the charge prayed for was improper.

4. The notice given by Felton to Gewin, that he would no longer be bound as security for McGehee, amounted to nothing. The statute makes no provision for a surety’s discharging himself in this way, in cases of this character.

5. There is no error available to the plaintiffs in error, in. the charge given. It conforms Substantially to the views we have above expressed, except that it is too favorable to them in respect of the right of the sureties to discharge themselves by surrendering their principal.

Let the judgment be affirmed.

LigoN, J., having been of counsel before his election to the bench, did not sit in this case.