13 Ala. 357 | Ala. | 1848
It was left by this court, in Rutland’s Adm’r v. Pippin, et al. 7 Ala. Rep. 419, an open question whether, if the sheriff paid the money demanded by an execution in his hands to be levied, at the request of the defendant in the execution, he could maintain an action against
The third plea avers, that the money was paid by the plaintiff below, as sheriff of Dallas county, on an execution against the defendant, and without his consent. The answer of the plaintiff is, “ after the payment was so made, the defendant recognized, adopted, and assented to said payment by moving to quash, and thereby became liable, and promised to pay plaintiff.” These pleadings, by the courtesy which is so liberally extended usually at the bar, are in short. We must then, in accordance with the former decisions of this court, consider them as drawn out in proper form, but as containing the substance only of what is stated in short.
Applying this rule, we think the above plea is good. Its evident meaning is, that the defendant below availed himself of the payment made by the sheriff in quashing the execution, and thereby recognized, adopted, and assented to the payment. This is the only reasonable construction which it will bear, when considered in reference to the plea which it follows, and purports to answer. The plea need not set out the petition for the supersedeas. It is sufficient that the plaintiff should aver, that the defendant below adopted and sanctioned the payment of the money, by insisting upon it as a satisfaction of the execution, and by
Let the judgment be affirmed.