Forward v. Marsh
Supreme Court of Alabama
Error to the Circuit Court of Clarke. Tried before the Hon. John Bragg. This was an action of debt by the defendant in error, who was bank marshal, against the plaintiffs in error, who were the sureties on the bond of William Cleaver, the deputy of the defendant in error, for the failure of Cleaver to pay over money collected by him on an execution. The declaration describes the execution as dated on the 15th June 1844, and “ returnable according to the statute.”
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Error to the Circuit Court of Clarke. Tried before the Hon. John Bragg. This was an action of debt by the defendant in error, who was bank marshal, against the plaintiffs in error, who were the sureties on the bond of William Cleaver, the deputy of the defendant in error, for the failure of Cleaver to pay over money collected by him on an execution. The declaration describes the execution as dated on the 15th June 1844, and “ returnable according to the statute.” The execution offered in evidence appeared to be returnable on the second Monday after the fourth Monday in October ] 844, when, by…
1Opinion of the CourtParsons, J.
The declaration alleges that the execution was returnable according to the statute, which means, if it means any thing, that, on its face, it was made returnable to the term to which it should have been returnable, according to the Statute. But on its face it was returnable at a different time, and, therefore, it did not agree with the allegation and should have been rejected. — 5 Wend. 276.
2. As Cleaver received the money after the time when the execution was made returnable on its face, but before the lime when it should have been made returnable, the question is, are his sureties liable?
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2Cases cited2 opinions
- Toof v. BentlyNew York Supreme Court · 1830
- Butler v. Merchants' InsuranceSupreme Court of Alabama · 1845
3Cited by7 opinions
- Hawkins v. ThomasIndiana Court of Appeals · 1891
- Washington v. TimberlakeSupreme Court of Alabama · 1883
- Central of Georgia Ry. Co. v. IsbellSupreme Court of Alabama · 1916
- Brevard's Executors v. JonesSupreme Court of Alabama · 1874
- Prestwood v. McGowanSupreme Court of Alabama · 1906
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