
    Williams v. M‘Broom.
    Prior to the statute of 12th January. 1826, a motion would not lie • against a sheriff (duly making his return) for failing to make the money on a fi. fa.
    
    A fi. fa. Williams against Howson, was delivered to a deputy of M‘Broom, sheriff of Madison county, who made return thereon, “ levied 24th December, 1823, on four negroes,” naming the negroes, and other property, “property claimed by Fleming Hodges as per affidavit, made 4th February, 1824.”
    Notice on behalf of Williams, was served on M‘Broom, of a motion for judgement against him, for having failed and refused to cause the money to be made, and for having failed to return the execution.
    On the trial of the motion in the Circuit Court, it was proved that on the day advertised for the sale of the property, Fleming Hodges exhibited a mortgage from How-son to him, dated prior to the date of the execution, and duly recorded; that Williams urged, and Hodges consented that the property should be sold, subject to the mortgage, and the deputy manifested a willingness to sell, but the sheriff objected saying that he was advised that the plaintiff had no right to sell, as the property was mortgaged. On this, Hodges withdrew his assent, and made affidavit of his claim. Williams then offered one Miller as his security, to indemnify the sheriff, and required him to proceed to sell. The security was amply sufficient. The sheriff did not accept the indemnity, nor did the claimant give any bond as required by the statute; and he refused to proceed to sell. It was not shewn that the execution was not returned to the clerk’s office on its return day, but that it probably was.
    The Circuit Court rendered judgement for the defendant. The evidence being set out by bill of exceptions, Williams here assigned the matter of the bill of exceptions as error.
    Kelly and Hutchinson for plaintiff.
    Clay and M‘Clung, for defendant in error.
   JUDGE SAFFOLD

delivered the opinion of the Court.

The statute which authorizes a judgement on motion against a sheriff, for improperly failing to make the money on an execution, passed 12th January, 1826. The notice in this case, is dated 1st February, 1825. The statute of 1818, makes an action on the case, the proper remedy for such default as is charged in the record, and when the notice was given and motion made, this seems to have been the law governing the case. Judgement affirmed. 
      
      o Laws Ala.315,
     