Gary v. Boykin
Supreme Court of Alabama
Writ of error to the County Court of Sumter. MotioN against Gary, as sheriff of Sumter, for having failed to return an execution at the suit of Boykin.
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Writ of error to the County Court of Sumter. MotioN against Gary, as sheriff of Sumter, for having failed to return an execution at the suit of Boykin. The defendant pleaded: 1. That before the return day of the execution the sheriff paid to the plaintiff the damages and interest mentioned therein; and he then excused the sheriff from returning it. 2. A similar plea, with the further averment, that the money so paid was accepted in full satisfaction, and that the plaintiff had not been, aggrieved or injured by the failure of the sheriff to return the said execution. Demurrers were, sustained…
1Opinion of the CourtGoldthwaite, J.
— 1. So far as the questions raised in this case are connected with the pleas, We think they are concluded by the case of McClure v. Colclough, 5 Ala. Rep. 65, when we held, that if the plaintiff’s attorney, or an agent properly authorized, induces the sheriff by any advice or direction, to delay the return of an execution, this would constitute a defence to a rule against the sheriff and his sureties. We also said in that case that the plaintiff had an undoubted right to control his own process, and relieve the sheriff from *156the necessity of returning it when not executed. Here, the pleas…
2Cases cited2 opinions
- McClure v. ColcloughSupreme Court of Alabama · 1843
- Willard Freeman & Co. v. WomackSupreme Court of Alabama · 1842
3Cited by4 opinions
- Hoover v. Missouri Pacific Railway Co.Supreme Court of Missouri · 1893
- Governor v. PowellSupreme Court of Alabama · 1846
- Tucker v. GillespieSupreme Court of Alabama · 1910
- Spenney v. SorrellAlabama Court of Appeals · 1915