17 Ala. 184 | Ala. | 1850
1. Griffin was defendant in the Circuit Court, and filed a demurrer to each of the three counts in the declaration, but the demurrers were overruled. The first count states that Isbell, the plaintiff below, had obtained two attachments against the estate of one Kennerly, which the defendant, as sheriff of Talladega county, levied on a barouche and harness and a negro man, the property of Kennerly; and that Griffin afterwards wrongfully discharged the property from the Jevies and abandoned the custody thereof, whereby Isbell lost his debts. This count states a good cause of action, and we think the demurrer was properly overruled.
2. The second count states that the defendant levied the attachments on the same property and afterwards released and
State of Virginia, ^ Pursuant to the annexed commisPatrtck County, j sion to me directed, by, &c., I have caused Thomas Penn, the witness, &c., to come before me, a justice of the peace in and for the county of Patrick and State of Virginia, on, &c., and the said Thomas Penn being duly sworn on the Holy Evangelists, &c. The commissioner slates, in conclusion, “ The above answers were sworn to and subscribed before me, a justice of the peace in and for the county of Patrick and State of Virginia.” The commissioner inserts the letters J. P. between his signature and seal. We think the words justice of the peace, &c., descriptive of the person, as-if instead, he bad said, “administrator of A. B.” The words “pursuant to the annexed commission,” plainly show the char-’ acter in which he acted. If he had said pursuant to his office of justice of the peace he had taken the deposition, the objection might have been good.
4. The counsel has objected to two particular parts of this deposition: First to that part in which the witness states the fact of an “understanding” between Griffin, Kennerly and himself, that some of tfie property was to be returned to Kennerly, as stated in the deposition. We think the witness-clearly used the word understanding as synonimous with agreement, intending to state the fact that such an agreement had been made. This answers the objection urged at the bar.
5. The next point of the deposition which was particularly objected to, is that in which the witness stated tha-t Griffin, alter purchasing the negro of Kennerly, paid to -the latter over one hundred dollars, which appears by another portion of the deposition to have been part of the price of the negro. It is insisted that this payment was not a fact in issue, and that proof of it should have been excluded, ©n the authority of Griffin v. Ganaway, 6 Ala. 149; where it was held that an action against a