The demurrers to the-pleas were correctly overruled. An instruction by the person beneficially interested in the judgment, or by his authorized agent, to the constable, not to return the execution, is a sufficient warrant for his holding it up. The facts alledged in the third plea, constitute a defence, because if true, they establish that the bond upon which the motion is predicated, was never delivered by them as their bond, but upon a condition which has-not been performed. [Reid & Hoyt v. Bibb, 3 Ala. R, 88.], The right of the sureties to litigate the factum of the bond,, is clear in every case, where they are sought to be charged upon it. It is equally certain, that in motions under this statute, they may also litigate the question of the liability of their principal, as a judgment may be rendered against him, upon a notice to them. The cases of McClure v. Colclough, 5 Ala. Rep. 70, and Price v. Cloud, 6 Id. 248, rest upon a statute different from this.
The statute upon which this motion is founded, authorizes the plaintiff, when a constable has failed to return an execution, to move against him for the amount of the judgment, on giving three days notice to the constable, or his securities, and thereupon it is made the duty of the court to render judgment against him, and his securities. [Clay’s Dig. 219, § 87.] It is no objection therefore, that he is not a party to the motion. The cases of Logan v. Barclay, 3 Ala. Rep. 361, and of James v. Auld, 9 Ala. Rep. 462, only established, that where the constable is dead, so that no judgment can be rendered against him, none can be rendered against his sureties, *472as the statute requires the judgment to be rendered against him and his sureties, and that this defect was not remedied as to constables, by the act authorizing a judgment against the sureties of a sheriff, without including their principal.
From this it results also, that the constable was improperly admitted as a witness for his sureties, as a judgment could be rendered against him, although he had no notice of the motion; he had therefore a direct interest to defeat the motion, and against this interest it is obvious he could not be released by the sureties.
We are also of the opinion that the court should have charged the jury, that although the bond was originally delivered as an escrow, yet if subsequently the sureties suffered him to act under this bond, it would authorize the inference that they had waived their demand of additional sureties, and had consented to be bound by it as it stood. It would be a fraud upon the public, to permit them to lie by for such length of time, and suffer him to act without objection, upon a bond which the public had no means of knowing was insufficient.
Let the judgment be reversed, and the cause remanded.