
    KAVANAUGH vs. THE STATE BANK.
    1. under the act of February 11,1850, (Pamphlet Acts, 34,) which abolished the County Coui'ts, the Circuit Court has jurisdiction of a motion against a sheriff for failing to pay over money collected on an execution which was issued from the County Court before its abolition.
    Error to the Circuit Court of Tuskaloosa.
    Tried before the Hon. Thomas A. Walker.
    This was a summary proceeding by motion, made at the September term, 1850, of the Circuit Court of Tuskaloosa, against the plaintiff in error, as sheriff of Madison county, for failing to pay over money collected by him on an execution, which issued from the County Court of Tuskaloosa before its abolition, on a judgment previously rendered in said court, in favor of the Bank against Joseph Oloyd, Geo. W. Drake and Thomas McCrary.
    The sheriff appeared by attorney, and insisted that the Circuit Court had no jurisdiction to proceed against him in this summary way, inasmuch as said execution was issued from the County Court before its abolition; but the court ruled otherwise, to which he excepted, and now assigns its ruling for error.
    
      E. W. Peck, for plaintiff in error.
    P. & J. L. MARTIN, contra.
    
   CHILTON, J.

— Tbe only question in tbis case is, bas tbe Circuit Court, to wbicb tbe records and papers of tbe County Court have been transferred by tbe act of lltb February, 1850, jurisdiction of a motion against tbe sheriff for failing to pay over money collected by virtue of an execution issued from tbe County Court before said court was abolished.

Tbe statute authorizing such motions, requires them to be made in tbe court in wbicb tbe judgment was rendered. Clay’s Dig. 218. And it follows, that, unless tbe statute above referred to, abolishing tbe County Court, and transferring its papers, records, &c., to tbe Circuit Court, gives tbe latter court jurisdiction, it had no right to proceed in tbis case.

Tbe thirty-sixth section of that act provides for depositing tbe papers and records of tbe County Courts in tbe office of tbe clerks of tbe Circuit Courts, and for tbe issue, by tbe clerks of tbe Circuit Courts, of writs of execution, of scire facias, and of error, and for giving exemplified copies of tbe record, &c. Tbe forty-second section repeals all laws contravening tbe provisions of tbe act. Tbe forty-third enacts that tbe same jurisdiction and system of practice wbicb tbe County Courts possessed, saving tbe jurisdiction conferred by tbe act on tbe Probate Court, should be conferred on tbe Criminal Court of Mobile county. Tbe forty-fourth section increases tbe salary of tbe judge of said Criminal Court; and tbe forty-fifth section provides as follows: “Be it further enacted, That sheriffs and other officers shall be liable to tbe same proceedings by summary notice, for failing to execute or return process, or for failing to collect or pay over money, as heretofore existing under former laws.”

Tbe counsel contends, that tbe section of tbe act last quoted bas reference to tbe Criminal Court alone, and bas no applicabibty to tbe Circuit Courts. If tbis construction be correct, tbe section was altogether supererogatory; for none of tbe records or papers of tbe County Court are, by tbe act, transferred to tbe Criminal Court, and by tbe forty-third section, j urisdiction is conferred upon tbe Criminal Court coextensive witb tbe powers before vested in tbe County Courts, except so far as tbe act confers powers on tbe Probate Court, wbicb it creates. So that this court would, aside from tbe forty-fifth section, have ample jurisdiction of such motions, in respect of its own process, under tbe general law, and can take none upon process issued by the County Court, as none is made returnable to that court.

But it is needless to pursue tbe subject. We do not entertain a doubt but that tbe forty-fifth section was intended to put to rest tbe very question here raised. For it might very reasonably have occurred to tbe legislature, that, inasmuch as these summary motions imposed in some cases heavy penalties upon defaulting officers, it might well be argued that they were not given upon process issued out of tbe County Court after that court was abolished. Hence, an express declaration of tbe legislative intention, that tbe sheriffs and other officers should be liable to tbe same proceedings by summary notice, &c. Tbe section is general in its terms, and we see no reason for restraining its operation to tbe Criminal Court, wbicb needed no aid from it to render its jurisdiction complete; whereas, tbe Circuit Courts, without it, -are powerless to afford such relief upon process issued on judgments rendered by tbe County Court — and every reason wbicb prompted to tbe enactment of tbe summary remedy pursued, or which forbids its repeal, is available as a motive wbicb may be supposed to have influenced tbe legislature in conferring tbe jurisdiction in cases like tbe one before us. Indeed, tbe act of transfer would have been wanting in completeness without such provision, as it would have deprived parties of summary remedies they would otherwise have bad, and wbicb were afforded to other plaintiffs in judgments.

It is said these summary remedies are penal in their character, and should be strictly construed; that they cannot be aided by intendment. This may be conceded, without at all 'interfering witb tbe position we have attempted to sustain; for we are called on, not to construe tbe statute giving tbe summary remedy, but tbe remedial statute abolishing an inferior court, and conferring its jurisdiction upon another and higher tribunal. It would be difficult to conceive of a reason for rendering tbe Circuit Court less efficient in affording remedies to parties who bad been referred to it, than tbe County Court was, or tbe same court is as to parties who have obtained judgments in it.

It remains but to add, that tbe judgment of the Circuit Court must be affirmed.  