Robertson v. Coker
Supreme Court of Alabama
Error to the Circuit Court of Talladega. This proceeding commenced by notice against one May, a constable, and Joseph Coker, Thomas L. Best, and Solomon Spence, his sureties, for failing to return an execution in favor of the plaintiff in error, against one Elliott, and judgment being rendered thereon, in favor of the plaintiff against the sureties, they prosecuted an appeal to the circuit court.
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Error to the Circuit Court of Talladega. This proceeding commenced by notice against one May, a constable, and Joseph Coker, Thomas L. Best, and Solomon Spence, his sureties, for failing to return an execution in favor of the plaintiff in error, against one Elliott, and judgment being rendered thereon, in favor of the plaintiff against the sureties, they prosecuted an appeal to the circuit court. The sureties appeared in the circuit court, and pleaded— 1.Taking issue upon the allegations of the notice. 2. That one Cox was the party really interested in the judgment, and that one Blythe, as…
1Opinion of the CourtOrmond, J.
The demurrers to the-pleas were correctly overruled. An instruction by the person beneficially interested in the judgment, or by his authorized agent, to the constable, not to return the execution, is a sufficient warrant for his holding it up. The facts alledged in the third plea, constitute a defence, because if true, they establish that the bond upon which the motion is predicated, was never delivered by them as their bond, but upon a condition which has-not been performed. [Reid & Hoyt v. Bibb, 3 Ala. R, 88.], The right of the sureties to litigate the factum of the bond,, is clear in…
2Cases cited3 opinions
- McClure v. ColcloughSupreme Court of Alabama · 1843
- Logan v. BarclaySupreme Court of Alabama · 1842
- James v. AuldSupreme Court of Alabama · 1846
3Cited by12 opinions
- Guild v. ThomasSupreme Court of Alabama · 1875
- Wright v. LangSupreme Court of Alabama · 1880
- Birmingham News Co. v. MoseleySupreme Court of Alabama · 1932
- Sharp v. AllgoodSupreme Court of Alabama · 1893
- Morgan v. Smith, Wykoff & NichollSupreme Court of Alabama · 1856
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