
    The Planters’ and Merchants’ Bank of Huntsville against James B. Walker.
    December, 1825.
    Sheriff’s return of service of notice on IV. G. H. cashier, &c. not evidence that he was Cashier, on a motion for judgment under the Statute.
    IN the Circuit Court of Madison County, James B. Walker recovered a judgment on motion against the President, Directors, and Company of the Planters’ and Merchants’ Bank of Huntsville, for the amount three Bank notes of said Bank for $50 each, which he had duly presented for payment, and payment of which had been refused. The judgment was by default, and the defendants, on writ of Error to this Court, among other matters assigned as Error—That it does not appear that notice was served on the Planters’ and Merchants’ Bank of Huntsville, or on the President or Cashier of said Bank.
   Judge Gayle

delivered the opinion of the majority of the Court.

The Statute authorising a recovery on motion on such grounds as are stated in this Record, makes the service of notice on the President or Cashier of the Bank by the Sheriff of the County sufficient to make the Bank a party defendant. By the return of the Sheriff in this case it appears that the notice was served by him on “ Wm. G. Hill, Cashier of the Bank.” By the Record it is not shewn that it appeared to the satisfaction of the Court that' Hill was such Cashier.

It seems to us that the official duties of the Sheriff did not require him to certify in his return who was the Cashier. His return proved only that service was made on aparti-cular individual, not that such individual was Cashier. He being only an agent of the Bank-, his identity must be ascertained, as other facts are, by proof. The Sheriff might sei.ve the notice .on a stranger having no connexion with the Bank, and judgment might thus, on motion, be rendered .against the Corporation without an opportunity of making defence.

Clay and Hopkins for plaintiff.

Kelley and Hutchinson for defendant in Error.

The' other Errors assigned are conceived to be unavailable. But it is the opinion of the majority of the Court that for this the judgment must be reversed.

Judge Crenshaw.

I concur with the majority of the Court in thinking, that, as this is a Summary and extraordinary remedy, the Record should shew that, the plaintiff in the motion had complied with all which the Statute requires to entitle him to the remedy. But I think that the plaintiff has done all this in the present case. I cannot think that it was contemplated by the Statute that the plaintiff should prove that the person on whom, the notice was served was the Cashier. It is enough that' the Sheriff certifies that he served it on the Cashier ; and if the service was on one who was .not cashier, the matter might have been plead in abatement, in the same manner as pleas in abatement in ordinary .actions. I am of opinion that the. judgment should be affirmed.

By the majority of the Court. Judgment reversed.  