Samuel Nelson

“ The replication that the defaults are not the same, is bad. No such replication has been sustained by judicial authority in such a case as ours. Where, indeed, the defendant pleads a former recovery against him for the same cause of action, there the replication, that it is not for the same cause of action, is good, and may be used instead of a new assignment; but the reason is, that the plea admits a liability as to the cause of action to have once existed, and alleges that it has been satisfied by the recovery, so that, if not so satisfied, it still exists. ”

“ In order to understand the purport and legal effect of these breaches, and the pleadings which follow them, it is proper to refer to two provisions in the statutes of Alabama that have a material bearing on the subject. One is, that when the sheriff shall levy an execution on property claimed by a person not a party to the execution, such person may make oath that he is the owner: and thereupon it shall be the duty of the sheriff to postpone the sale until the next term of the court ”

“ This plea being admitted by the demurrer, it is a matter immaterial to the plaintiff whether the goods were kept, or lost, surrendered to a claimant with or without a bond, or what became of them. Whoever has or may have a right to call upon the sheriff by reason of his disposition of the goods, the plaintiff has none his whole right and interest therein being founded upon their supposed liability to the execution. ”

“ It should also be noted that the plaintiff in his first breach alleges a judgment and execution thereon, and in every succeeding breach refere to this one execution and the returns alleged to have been made thereon, and to the one term to which it was returnable. Hence it judicially appears that the whole gravamen of all the breaches is one and the same default, and not other and different defaults; from which it would seem to follow that what is an answer to one breach is an answer to every other. ”

“ Thirdly. The replication tenders a formal traverse that Smith delivered up the goods to claimants under any other order or judgment of the court than that set out in the replication, and therefore seems to admit a delivery by him under that order, and that order being a justification, the traverse tenders an immaterial issue. Fourthly. The plaintiff ought either to have replied null tiel record of the order alleged in the plea, or admitting the record, have traversed the delivery under it, if he deemed the latter fact material. ”

“ The defendants, by their 9th plea, also pleaded severally to all the breaches, that the goods and chattels levied upon, as stated in the several breaches, were not the property of the defendant in the execution, nor subject to be taken for the payment, &c.; and also by their 10th plea, that said Smith was not guilty of the several defaults, &c.; and to these pleas plaintiff demurred. ”

“ The defendants filed an amended 7th plea to the 9th, 10th, 11th, and 12th breaches in the declaration. The plea averred that before the return day of the execution, the goods were claimed by Dawson and Frion, and an affidavit made by Dawson; that the execution and claim were returned to the court, and a suit docketed between the Leavitts as plaintiffs, and Dawson and Frion as defendants; that at the fall term of 1840, the Leavitts refused to make up an issue; that the court thereupon ordered the goods to be restored to the claimants; that they were accordingly restored. ”

“ It would be more reasonable to require such special plea in the latter action, the sheriff being cognizant of all the facts, than in the former, the sureties having no such knowledge. The only ground assumed on the other side is the technical one, that 'not guilty' cannot be pleaded to an action of debt-but the position is not true. ”

“ The record contained thirty-eight printed pages, which were occupied exclusively with pleas, replications, demurrers, joinders, and judgments upon them; and finally the case came up to this court upon two judgments upon demurrers. In giving a narrative of all this, the controversy between the plaintiffs and the sureties will be detached from the tangled history, and left out of this report. ”

“ To the 1st, 2d, and 3d breaches, the defendants pleaded that the said Leavitts, in the Circuit Court of Coosa County, according to the statute of Alabama, suggested the issuing of the fi. fa.; that it came to the hands of Smith to be executed; that he might by due diligence have made the money and did not; that an issue was made up whether Smith by due diligence could have made the money, &c.; that the issue was tried and found for Smith, for whom judgment passed, &c. ”