Sutherland v. Cunningham
Supreme Court of Alabama
George and Thomas Sutherland brought an action of trespass on the case in the Circuit Court of Lawrence county, against Hance M. Cunningham, sheriff of said county, endorsed to recover for making a false return of ,• an execution.
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George and Thomas Sutherland brought an action of trespass on the case in the Circuit Court of Lawrence county, against Hance M. Cunningham, sheriff of said county, endorsed to recover for making a false return of ,• an execution. The declaration alleged that a decree in Chancery was rendered in Lawrence Circuit Court in favor of the plaintiffs against Hamlin Epps and Samuel Mitchell, for $738 debt, ¿36 90 damages and $39 25 costs ; that on the 23d of April, 1821, a fi.fa. on said decree was handed to the defendant, then sheriff, to execute ; that Epps and Mitchell had property sufficient,…
1Opinion of the Court
By JUDGE PERRY.
■ The charge of the Court is assigned for error, and the last part is relied on for a reversal of the case ; but the whole charge must be taken together, and is to be considered as having been made with reference to the evidence. Then, does the testimony sustain the cause of action as laid in the declaration ? It seems, to the Court that it does not, for it is admitted and shewn by the proof, that the defendant took a replevin bond. If that bond had been such as contemplated by the statute of 1820, the sheriff could not surely be made liable for a false return ; and the bond…
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