Gresham v. Walker
Supreme Court of Alabama
Error to the Circuit Court of Randolph. This was a suggestion by the defendant in error, against the plaintiff in error, as coroner, that he could by due diligence, have made the money on an execution, against one Peter Usury. An issue being made up, the plaintiff produced a writ of fieri facias, corresponding with that in the suggestion, except that in the suggestion, the defendant was described as Peter Usrey, and in the fieri facias he was called Peter Usury.
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Error to the Circuit Court of Randolph. This was a suggestion by the defendant in error, against the plaintiff in error, as coroner, that he could by due diligence, have made the money on an execution, against one Peter Usury. An issue being made up, the plaintiff produced a writ of fieri facias, corresponding with that in the suggestion, except that in the suggestion, the defendant was described as Peter Usrey, and in the fieri facias he was called Peter Usury. The defendant moved the court to exclude this writ from the jury, upon the ground of variance, but the court refused to exclude it,…
1Opinion of the CourtOrmond, J.
The supposed variance, caused by the omission of a letter in the name of the defendant in execution, was immaterial. Usrey and Usury, are idem sonans.
The execution of a bond for the delivery of property levied on by a fieri facias, suspends all further proceedings under the writ, which should be returnad to the clerk’s office, and if the property is not delivered for sale, an execution issues upon the forfeited bond, against the debtor and his sureties. The bond offered in evidence, does not purport to have been taken in this case. It is payable to the “ Branch of the Bank of the State of…
2Cited by18 opinions
- Mitcham v. MooreSupreme Court of Alabama · 1883
- Rooks v. StateSupreme Court of Alabama · 1887
- Clark v. SpencerSupreme Court of Alabama · 1883
- State v. . CollinsSupreme Court of North Carolina · 1894
- Simpson v. SimpsonSupreme Court of Alabama · 1857
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