Nabors v. Camp
14 Ala. 460
Ala.
1848
Check Treatment
DARGAN, J.

Although it is clear to my mind, that after . the execution was quashed, and' the bond declared not to be *463a statutory bond, Nabors, in the absence of all other proof, was entitled to recover back the $700 paid by him on the execution that was quashed, yet if this sum was paid by him under an agreement to discharge him from all liability growing out of his connection with the suit, by reason of the bond,, and this agreement has been faithfully observed by Camp,, then Nabors cannot recover back the money; for this payment under this agreement, would discharge him from any liability he might be under to the sheriff, if the bond was; good at common law; and the money would therefore be considered as paid in extinguishment of a doubtful liability, and could not be recovered back.

In addition to the, record evidence which shows the issuance of the attachment, the execution of the replevy bond by English, with Nabors as surety, the return of forfeiture, and the issuance of execution thereon, which was quashed before this suit was brought, it appears that Nabors proposed to pay to the agent of Camp $700, in full satisfaction of the damages recovered by Camp, but refused to pay the cost, which amounted to $200. This proposition was accepted by the agent of Camp, and the judgment, to the extent of damages and interest, was satisfied; but the execution was left with the sheriff, who collected the cost, which was received by the plaintiff, in addition to the $700 paid by Nabors. If this cost was collected of Nabors, then the agreement under which the $700 was paid, has been violated by Camp, and1 Nabors has the same right to recover it back, that he would have had, if the $700 had been simply paid on the execution, without any agreement. But the proposition made by Nabors was, to pay $700 in full of all damages, he refusing to pay the cost. This proposition was accepted by Camp, and which did in fact, or was intended to release Nabors from the cost. But it cannot be said that English was discharged from the cost by virtue of this agreement, or that it was intended that he should be, and whether this cost was paid by Nabors or by English, we are not distinctly informed by the proof. It should therefore have been submitted to the jury to determine, whether this cost was collected of Nabors, or whether it was paid by English. If collected of Nabors, then the agreement under which the $700 was paid, has been vi-*464dated. If paid by English, it' has not been, and Nabors could not recover. But the charge of the court rendered it wholly unnecessary for the jury to consider, whether this sum was paid under this agreement, or whether Camp had faithfully observed it. The charge in substance was, that if the jury believed, that the $700 was paid by Nabors to Camp, on the execution which had been issued on the bond given for the delivery of the slaves, which execution had been quashed, that the plaintiff Was entitled to recover, which amounted to nothing more, than that the record evidence, entitled the plaintiff to a recovery. Under this charge, it became unnecessary for the jury to consider, whether the money was paid under the agreement, or whether Camp had observed it, or whether the sum of $200 had been collected of Nabors, or paid by English, although the evidence rendered it material that these facts should be considered, and determined by the jury. If they had come to the conclusion, that Nabors had paid the $700 under an agreement that he should be discharged from all liability, and the cost had not been collected of him, in violation of this agreement, but had beeh paid by English, then he would not have been entitled to recover, notwithstanding the evidence afforded by the record of the attachment bond, &c. The charge was calculated to mislead the jury, and did withdraw from their consideration, facts material to the plaintiff’s right of recovery, placing it on grounds wholly independent of those facts. That such a charge is objectionable, see Cothran v. Moore, 1 Ala. Rep. 423; Sims v. Sims, 8 Porter, 449; Toulmin v. Lesesne and Edmondson, 2 Ala. Rep. 359.

The judgment of the circuit court, reversing the- judgment of the county court, is affirmed.

Chilton, J., not sitting.