The statute under which this proceeding •was instituted, is in these words, «Whenever any sheriff or coroner, to whom an execution shall have been delivered, shall fail to make the money on or before the first day of the term of the court to which said execution shall be returnable, the plaintiff or plaintiffs, his, her or their attorney, shall suggest to the court, that the money could have been made by said sheriff or coroner, with due diligence, it shall be the duty of the court forthwith to cause an issue to be made up, to try the fact; and if it shall be found by the jury that the money could have been made by the sheriff or coroner, with due diligence, judgment shall be rendered against said sheriff or coroner, and his securities, or any or either of them, for the sum of money specified in said execution, together with ten per centum on the amount, &c,” [Clay’s Dig. 218, § 85.]
This act, it will be observed, affords a summary remedy, and inflicts a penalty for a neglect of duty, and according to the repeated adjudications of this court, cannot be extended by construction beyond what its terms fairly import. The inquiry which it directs to be made upon the suggestion, is whether the money ■could have been made “with due diligence,” and to entitle the plaintiff to a judgment, this fact must be found affirmatively by the verdict where the defendant makes default, or concluded, by the issue where he appears and pleads. [Adams, et al. v. White, 2 Ala. Rep. 37.]
In Hallett v. Lee, et al. [3 Ala. Rep. 28,] it was decided, that it was not only competent for the sheriff to traverse the allegation *248of the suggestion, but he might interpose by way of plea, any matter of avoidance which constitutes a legal defence. The defendants pleas in the present case, allege facts which negative the idea of negligence, such as the statute contemplates. The Mure to make the money, a fact of which the want of diligence is predicated, is denied by the second and third pleas; by the second, it is averred that the enttie amount of the execution has been collected; and by the third, that the greater part of it has been made. The third plea appears to have been fully sustained by the proof, and on this as well as the other, issue was joined, and by consent, submitted to the court instead- of the juxy. The court affirms, that it was sustained by the proof, and to the extent of the money made upon the execution, refuses to render a judgment in favor of the plaintiff. In all this we can discover no error; for it is clear, if the sheriff made the money, he is not chargeable with a want of due diligence for not having collected it.
The judgment in this case will not preclude the plaintiff from proceeding summarily against the defendants for the money in the sheriff’s hands — it, in fact, furnishes evidence sufficient to sustain a recovery upon such a motion.
Whether the plaintiff in execution may maintain an action against the sheriff at common law, and recover the full amount of it, when the sheriff is willing to pay what he has collected, where he has been guilty of negligence in not making the residue, is a question not necessary to be considered. The proceeding in the case before us, is regulated by a statute, which must be strictly pursued.
The judgment of the circuit court is affirmed.