Johnson v. Gray
Supreme Court of Alabama
WRIT of error to the Circuit Court of Barbour county. This is a proceeding by Gray against Johnson and his sureties, to recover a sum of money alleged to have been collected by him as constable, and not paid over upon demand.
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WRIT of error to the Circuit Court of Barbour county. This is a proceeding by Gray against Johnson and his sureties, to recover a sum of money alleged to have been collected by him as constable, and not paid over upon demand. The notice asserts that this collection was made by virtue of an execution issued by a justice of the peace against Austin H. Smiley, on the 10th of August, 1841. The plea is, that the money mentioned in the execution set out in the notice, was not collected. The plaintiff introduced the justice of the peace as a witness, and also, gave in evidence his dockets and other…
1Opinion of the CourtGolhthwaite, J.
In these motions, the question before the jury is not merely with reference to the collection of the money, but also is, whether it was collected by virtue of the particular execution which the plaintiff undertakes to describe in his notice. The consequence is, that when there is a misdescription of the execution, that is a fatal defect. In the present case, the evidence seems to have left it doubtful whether the money was collected by virtue of an execution against Austin Smiley, or by virtue of one against him and another person. This doubt was proper to be solved by the jury, and…
2Cited by1 opinion
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