Harper v. Howard
Supreme Court of Alabama
Writ of error to the Circuit Court of Tallapoosa county. Appeal from a Justice’s Court, before which the plaintiff, in a motion made pursuant to the statute, obtained judgment for twelve dollars. In the Circuit Court it appeared that the plaintiff placed several notes and .accounts with the defendant, as a justice o.f the peace, for collection. All were sued; on some the money was collected, and on others the executions were returned nulla bona.
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Writ of error to the Circuit Court of Tallapoosa county. Appeal from a Justice’s Court, before which the plaintiff, in a motion made pursuant to the statute, obtained judgment for twelve dollars. In the Circuit Court it appeared that the plaintiff placed several notes and .accounts with the defendant, as a justice o.f the peace, for collection. All were sued; on some the money was collected, and on others the executions were returned nulla bona. The costs on the latter exceeded the sum collected, and refused to be paid over, it being retained in payment of the costs of the other cases. On…
1Opinion of the CourtGoldthwaite, J.
This proceeding is not governed by the rules which might prevail in the ordinary action for money had and received, in which it is probable that the defendant’s right to set off his demand, could not be refused.
The statutory remedy, by motion, is to be governed by the same principles as control motions against other public officers. 'The claim of a sheriff, or of the clerk of a Court, to off-set his private demand against money collected by him, or coming to his hands in his public capacity, would be disallowed without scruple, when the extraordinary powers of a Court were invoked to compel a…
2Cited by5 opinions
- Sawyer v. BradfordSupreme Court of Alabama · 1844
- Sawyer's Adm'r v. PattersonSupreme Court of Alabama · 1847
- Lee v. BairdSupreme Court of Alabama · 1903
- Shelton v. Blount CountySupreme Court of Alabama · 1919
- Erwin, Myers & Co. v. CrowellSupreme Court of Alabama · 1850