Marcum v. Burgess
Supreme Court of Alabama
Action on Sheriff’s Bond for Damages for Failing to Return Execution. Appeal from Etowah Circuit Court. Tried before Hon. W. L. Whitlock. This action was brought by G. J. Marcum against Thomas J. Burgess, and the sureties on his official bond as sheriff of Etowah county.
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Action on Sheriff’s Bond for Damages for Failing to Return Execution. Appeal from Etowah Circuit Court. Tried before Hon. W. L. Whitlock. This action was brought by G. J. Marcum against Thomas J. Burgess, and the sureties on his official bond as sheriff of Etowah county. The complaint contained two counts, the first of which claimed five thousand dollars for the breach of the condition of a bond made by the defendants, payable to the State of Alabama with condition “that if the said Burgess shall faithfully perform all the duties that are, or may be by law, required of him .as such sheriff,…
1Opinion of the CourtStone, J.
— The statutory damages of twenty per cent, on the judgment for not returning an execution according to the mandate thereof, can be recovered of a sheriff only in a summary proceeding under the statute. — Code of 1876, section 3357; Governor v. Powell, 10 Ala. 544. In a common law action on the bond for not returning such process, the statutory damages, as such, can not be recovered. The violation of duty by the sheriff, in not returning the execution, is a breach of the official bond, which entitles the plaintiff to recover ; but in the absence of averment and proof of actual injury, there…
2Cases cited3 opinions
- Bagby v. HarrisSupreme Court of Alabama · 1846
- Evans v. The GovernorSupreme Court of Alabama · 1851
- Governor v. PowellSupreme Court of Alabama · 1846
3Cited by2 opinions
- Higdon v. FieldsAlabama Court of Appeals · 1912
- Branch v. DavisUnited States Circuit Court · 1886