Br. Bank at Mobile v. Darrington

14 Ala. 192

• Court: Supreme Court of Alabama
• Decided: January 15, 1848
• Status: Published

Opinion

DARGAN, J.'

The agents of the State Bank and Branches, appointed under the act of 1843, were clothed with the same powers in the execution of process in favor of the banks, conferred by law on sheriffs; but in the execution of those powers, they were bound to observe the same rules prescribed to sheriffs.

It is the duty of a sheriff, when he levies on personal property, to take bond and good security for the delivery of it, on the day of sale ; but he can only sell slaves, and land, at the court house of his county; consequently the condition of a forthcoming bond for the delivery of slaves, must be to deliver them at the court house of the county in which the levy was made by the sheriff, and if the condition of the bond be to deliver the slaves to the sheriff, in a different county, although the bond may be a good common law bond, yet it is not a statutory bond, upon which the plaintiff can issue execution, upon the return of forfeiture made thereon by the sheriff. To entitle the plaintiff to this summary remedy, the statute must be strictly pursued. Marsh, the agent of the bank, made the levy on the slaves in Clarke county, which was the county of the defendant’s residence. He was bound to sell the slaves in the same manner, and at the same place, that the sheriff of Clarke would have done, had the levy been made by him, which was at the court house of that county. It was also his duty to take a forthcoming bond; but to make it a statutory bond, on which an execution could issue on the return of forfeiture, the condition should have been to deliver the slaves at the court house in Clarke, and not at the court house of Mobile county. As the condition of the bond was to deliver the slaves in Mobile on the day of sale, and not at the court house of Clarke, where the law directs they should have been sold, it is not a statutory bond, upon the forfeiture of the condition of which, an execution could issue against the obligors. There was no judgment, then, on which the execution could rightfully issue against Dar-rington, and the county court properly quashed it.

The judgment is affirmed.