Planters' & Merchants' Bank of Huntsville v. Walker

1 Minor 391

Opinions

Judge Gayle

delivered the opinion of the majority of the Court.

The Statute authorising a recovery on motion on such grounds as are stated in this Record, makes the service of notice on the President or Cashier of the Bank by the Sheriff of the County sufficient to make the Bank a party defendant. By the return of the Sheriff in this case it appears that the notice was served by him on “ Wm. G. Hill, Cashier of the Bank.” By the Record it is not shewn that it appeared to the satisfaction of the Court that' Hill was such Cashier.

It seems to us that the official duties of the Sheriff did not require him to certify in his return who was the Cashier. His return proved only that service was made on aparti-cular individual, not that such individual was Cashier. He being only an agent of the Bank-, his identity must be ascertained, as other facts are, by proof. The Sheriff might sei.ve the notice .on a stranger having no connexion with the Bank, and judgment might thus, on motion, be rendered .against the Corporation without an opportunity of making defence.

Clay and Hopkins for plaintiff. Kelley and Hutchinson for defendant in Error.

The' other Errors assigned are conceived to be unavailable. But it is the opinion of the majority of the Court that for this the judgment must be reversed.