Welch v. Fourier
Supreme Court of Alabama
ERROR to the County Court of Sumter. This was a motion by the defendant in error, against the plaintiff, as constable, and others, his sureties, for failing to pay over, on demand, the amount of an execution collected by him.
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ERROR to the County Court of Sumter. This was a motion by the defendant in error, against the plaintiff, as constable, and others, his sureties, for failing to pay over, on demand, the amount of an execution collected by him. At the trial of the motion, the sheriff and his sureties appeared and objected to the sufficiency of the notice, because it did not specify the day of the term when the motion would be made; but the court overruled the objection, and refused to quash the notice. The defendants then pleaded to the merits. On the trial, the defendants moved the court to charge the jury,…
1Opinion of the CourtOrmond, J.
In McRae v. Colclough, [2 Ala. 74,] it was held, that notice of the intended motion against a defaulting sheriff, was sufficient, if it specified the term of the court, without designating the day of the term.of the court at which the motion would be made. The two statutes are alike, both requiring three days’.notice to be given of the time and place of making the motion. That decision must, therefore, govern this case.
Where sureties, as in this case, appear and unite with their principal in the defence, a plea to the merits will be an admission of the fact of suretyship, and supersede the…
2Cases cited2 opinions
- McRae v. ColcloughSupreme Court of Alabama · 1841
- Reid v. Planters' & Merchants' Bank of MobileSupreme Court of Alabama · 1842