3 Stew. 109 | Ala. | 1830
In this cause a great many points have been pressed on the consideration of the Court; some of them were abandoned by the counsel in the concluding argument, and there are some others that we should not find material in the investigation; we shall therefore proceed to examine those wo consider most prominent, and involving the true grounds of the contest between the parties. The judgment was rendered on a scire facias against the plaintiffs in error, as the securities of Walter Otey in a writ of error bond, in a case, where Rives, the present defendant was plaintiff, and Otey and others defendants.
The first objection taken by the appellants, is to the writ -of error bond. It is contended, that it goes beyond what is required by the law, and imposes conditions that had never been contemplated by the obligors. Those conditions, it is urged, are not such as the law imposes, and that such being the case, the bond is void. If it wore true that those conditions are not such as the law imposes, we should then inquire how far a bond or recognizance containing all the conditions that the law requires, with the addition of others not required, is bindingou the parlies to it. In such a case, it would seem, that the bond would be valid, so far as the conditions correspond with the law, and that those which are superadded should be treated assurpius-age. This rule of construction would do ample justice to all parties; and the maxium ulileper inutile non viiiatur, would apply. But in point of fact, the bond under consideration does not go beyond the statute; it is true, that it is much more minute and runs more into detail of the conditions to be performed than was at all necessary, yet minutely as those conditions have been set out, the law substantially requires their performance. The actoflS20,
The next objection is, that the scire facias does not correspond with the record on which it purports to be founded, that it calls for twenty dollars costs in the Circuit Court on the affirmance of thejudgment in that Court, on the writ cf error from the County Court. Thejudgment bad been originally rendered in the County Court, and was taken to the Circuit Court, where it was affirmed with costs; the record did not shew to what the costs amounted; nor indeed could it well do so, as it remained to be taxed by the Clerk. It was a matter to be proved on the trial of the scire facias. The amount is alledged to be twenty dollars, and there can be no doubt but the allegation is supported by the ice bill.
The objection that interest was allowed on the damages given in the Supreme Court, is not fairly presented; it
All the other material points arise out of the charges asked and refused by the Court, and those given and objected to; they arc presented to us in the bill of exceptions signed by the presiding judge. Two receipts were produced, one for five hundred dollars and the other for three hundred dollars, signed by Sanders, who was proven at that time to have been the deputy sheriff, and to have had the fierifacias against Otey in his possession. The first receipt expressed on its face to bo in currency, and the second in Tennessee money, both were signed by Sanders with the addition of D. S. to his name. On the back of both receipts was an indorsement in the following words: “Ihe private and individual understanding was between me and Captain Otey, that Ihe within receipt was to be applied to an execution which F. E. Rives obtained against said Otey, when the judgment was affirmed in the Supremo Court,’5 signed, “William Sanders.” These receipts were offered by Fenwick, one of the defendants below, as evidence of so much money paid by his principal, and for which he claimed a credit; they were objected to, and the objection was sustained by the Court. It lias been argued by the counsel for the plaintiff in error, that these receipts were improperly rejected by the Court, that they ought to have been permitted to go to the jury, and that the indorsement ought not to be allowed to repel the evidence on their face, of the money having been paid absolutely and unconditionally as a part of the execution. The counsel contend that the indorsement on the receipts contains intrinsic evidence of having been made ata different time, and without the privity and consent of Otey. If we were to put the indorsement on the receipts enlirely out of view, it would then only be by inference, after connecting the fact of Sanders being the deputy sheriff, and his holding the fieri facias at that time, that we could arrive at the conclusion that the money paid to him was in part payment of Rives’ execution against Otey. The receipts of themselves would not prove on what account the mone)'
Two other receipts were given by Sanders, which were offered in evidence, one for $500 and the other for $1000 signed by him as deputy sheriff. There can be no doubt that those two payments were intended to be applied to the same execution, as it docs not appear that the deputy sheriff ever had but the one. These receipts were read to the jury, there was some evidence that the money paid by Otey to Sanders on the execution, was, by an agreement between them, to remain in his hands, and abide the event of the writ of error in the Supreme Court, and it was in proof by the evidence of Mead, the clerk of the Court, that on his making some objection to the sufficiency7 of the security offered on taking out the writ of error, Sanders said that he as deputy sheriff, had received on the execution, between $2300 and $2500 in currency, in part payment thereof. After this evidence, the Court, at the request of the plaintiffs below, charged the jury in substance, that if any payment had been made by Otey to Sanders
Laws of Ala. 481.
Note. The v.siñ argued at the last term and retained under ad» 's’isement till the present term.