28 Ala. 600 | Ala. | 1856
The appellee was the plaintiff, and the appellant the defendant, in an action for “ wrongfully taking a gray horse.” The defendant pleaded, in short by consent : "1st. Not guilty; 2d. That he levied on said horse by virtue of an attachment in favor of J. K. McCollum against said plaintiff, and that he was constable at the time.” The plaintiff replied to the 2d plea as follows : “ The plaintiff replies to the second plea, and says, that the above horse was a work horse, and the only one he had; and that he is a man of family, and claimed the same as exempt from execution under the statute in such cases made and provided ; and plaintiff says, he is, and was at the time, a resident of the State, and the head of a family.” The only matters brought to our view by the assignment of errors, are a charge given, and a charge refused by the court.
The chai'ge given was, in effect, that if the plaintiff was a resident of the State at the time of the levy, and that defend•ant levied on and sold the horse of the plaintiff, and that plaintiff was a married man, with a wife and daughter living with him, in this State, and owned no other work horse, or mule, or pair of work oxen, at the time of the levy or sale; then they must find for the plaintiff. Conceding that making an affidavit, under sections 2465 and 2466 of the Code, was a fact necessary to give the plaintiff a right to a recovery in the suit, it by no means follows that the omission of that from
The defendant asked the court to charge the jury, that the. making of the affidavit was a fact without proof of which the plaintiff could not recover. This charge was properly refused, upon the state of the pleadings. The defendant had no right to ask a charge outside of the issue.
The sufficiency of the pleas, and of the replication, and the legality of the judgment rendered, are questions not presented by the assignment of errors.
Upon the questions decided in this opinion, see Cullum v. Bank, 4 Ala. 39 ; Upson v. Austin, 4 Ala. 128.
The judgment of the court below is affirmed.