Chenault v. Walker

14 Ala. 151 | Ala. | 1848

COLLIER, C. J.

1. It is provided by statute, that attachments may be levied on the defendant’s goods and chattels, and that the same shall remain in the custody of the officer seizing them, unless -the defendant or his agent shall enter into a replevy bond, with surety in double the amount of the plaintiff’s demand, “conditioned that if the defendant be condemned in the action, he shall return the specific property attached, and in case he fail to do so, the securities will do it for him,” &c. Clay’s Dig. 57, $ 11; 61 § 33. “For taking bonds Of every kind,” the sheriff is entitled to a fee of fifty cents. Id. 234, 235.

The first count of the declaration alledges that the plaintiff tendered to the defendant a bond executed by himself, with good and sufficient sureties, bouforming to the requirements of the statute; and the second avers an offer to execute such a bond. Both alledge the refusal of the defendant, as sheriff, to accept a bond with the sureties proposed. It is quite enough to state the substance of these counts, to show that they are good, at least on general demurrer. In respect to the second, if it was supposed that the plaintiff should not merely have offered to replevy, but should have tendered a bond in all respects perfect, we would answer, that the law in giving to the sheriff a fee for taking such a bond, imposes' on him the duty of preparing it, But if it were incumbent on the defendant in such case to tender a complete bond, he-would be excused from it, by the refusal in advance to accept it, provided the sureties proposed were sufficient.

2. The inquiry of Elisha R. Chandler, what he was worth when he proposed to execute the replevy bond with the plaintiff, we think was altogether unobjectionable. It cannot be admitted as a general rule, that a witness shall not be allowed to state a conclusion of fact, without first disclosing all the facts and circumstances of which the conclusion in his own mind is predicated. The opposite party may, so far as they are pertinent and proper, elicit them by a cross-examination. In Lawson v. Orear, 7 Ala. R. 784, it was said that reputation was not admissible to prove insolvency, as that is the legal conclusion from facts to be stated; but reputation of facts or circumstances from which insolvency may be inferred, is proper'evidence to go to to the jury. In Massey v. Walker, 10 Ala. 288, it was objected, that a witness should not have been allowed to state that a party “was largely embarrassed by debts,” because this was a statement of conclusions, not of facts. To this it was answered, that “fromthe course this notion of conclusions as distinguished from facts, seems to be taking, it is as well to state that the decisions upon this point refer to conclusions of law, to be deduced from facts which may or may not exist. There is no matter which involves a combination of facts that is not liable to be called a conclusion, if this term is properly applied to the knowledge by one individual that another is embarrassed with debt.” 2 Pick. R. 304; 3 N. Hamp. R. 349; 6 Id. 462; 3 Dana’s Rep. 301; 11 Serg. & R. 137.

3. What is said on the preceding point, and especially in the case cited from 10 Ala. Rep., is decisive to show, that the circuit court did not err in permitting E. R. Chandler to testify that he was acquainted with the situation of the persons offered as his co-sureties, and what he believed they were respectively worth.

4. The remaining question arises upon the charge of the court. By the terms “solvent and responsible,” we must understand, it was meant, that the sureties proposed were capable and able to discharge the obligation to be contracted; in other words, that they were good for th e penalty of the bond. There is no law which makes it indispensable that such sureties should be the proprietors of land; it is enough if they own other property which is tangible and available for the payment of debts. Upon this being shown, it devolves on the party controverting their sufficiency, if the fact be so, to show that they have no fixed residence — are men of uncertain and dubious pursuits, or are not (from any cause) such persons as men of prudence would trust. It is not shown that such proof was adduced, and it cannot be assumed that such was the character of the sureties offered.

It may be that the charge is somewhat ambiguous, and might have been more precise in its import, yet we cannot affirm, from the proof recited in the bill'of exceptions, that the jury were necessarily misled. We have repeatedly held that a judgment will not be reversed merely because a charge is ambiguous, or too general; if the party who supposes that he may be prejudiced, desires more specific instructions, he should pray the court to give them. If he suffers such an opportunity to pass, without an effort to repair what he con.siders injurious to himself, he cannot be heard on error to alledge that the charge was not sufficiently pointed, or was too general.

It follows that the judgment must be affirmed.

Chilton, J., not sitting.