Willis v. Willis' Adm'r.

shall assess and insert in its decree, the amount of each distributive share. [Id. § 44.] The statute of 1843, to amend the laws in relation to insolvent estates, authorises the Orphans' Court to render a decree in favor of an administrator de bonis non, appointed pursuant to its provisions, against his predecessor, for all moneys found due from him, to the estate, and all such goods, chattels, choses in action, and other personal effects, and deeds and other evidences of title to realty, as may be in his hands belonging to the estate. [Clay's Dig. 194, 9.] This enactment applies exclusively to the administration of insolvent estates, and is now referred to, because it was cited at the bar, to show the policy of the legislation in cases analagous to that before us.

We have thus noticed the statutes and adjudications which are at all times important to guide us to a conclusion, and it can scarcely be necessary to argue that they do not warrant to its full extent, the decree of the Orphans' Court. Whether it is competent in a case like the present for that Court to receive and adjust the accounts of a first administrator upon their voluntary presentation for settlement, or to require their production for that purpose, we will not stop to inquire. For however this may be, it is clear that there was no statute previous to 1830, which authorized an execution to issue upon a decree of the Orphans' Court, and the act of that year only gave it in favor of a "distributee, heir, or devisee." Neither of these designations embrace an administrator de bonis non.

The decree in the case before us, after ascertaining a certain sum to be in the hands of the displaced administrator, to which the estate of the intestate was entitled adjudges the same to be paid over to his successor, and directs an execution to issue for the collection thereof. Here then, the decree is erroneous, at least as it respects the order for an execution. [McLeod v. Mason, 5 Porter's Rep. 223,] This must be regarded as a part of the decree, as it undertakes to impart to it, an efficiency and influence beyond what the law accorded to such a decrée. Crenshaw v. Hardy, 3 Ala. Rep. 653, in this respect was unlike the present. There the order for an execution was said to be supererogatory, as the statute had declared the effect of the decree, and if the exe

[ 9 726 102 294

Samples v. Walker, et al.

cution was irregular it might be superseded in vacation, or quashed in term time on motion.

We have only to add that the decree of the Orphans' Court is reversed.

SAMPLES v. WALKER, ET AL.

1. When an execution is made returnable at an impossible day-as of a year which was gone when the execution issued-the sheriff cannot take advantage of the irregularity, when a motion is made against him and his sureties for a failure to return it within the time prescribed by law.

Writ of Error to the Circuit Court of Randolph.

MOTION, at the instance of Henry Baker, against Walker, as sheriff, and others, as his sureties, for failing to return an execution, and for failing to pay over the amount of it. The notice of the motion is dated in December, 1842, and is addressed to the sheriff and his sureties, by name, advising them that at the next term of the County Court a motion would be made against them for the amount of a certain execution there set out. In this notice the execution is described as having been issued on the 7th January, 1842, returnable to the County Court to be held for said county, on the first Monday of July, 1841. That the said writ of execution came to the hands of the sheriff on the 7th January, 1842, to execute and return according to law, and to the exigency of the said writ. It then proceeds to aver, that Walker was sheriff at the issuance of the execution, and until after its return day, and that he wholly failed to make his return of said writ within the time prescribed by law, and having failed to make the money thereon, and to pay over the same, upon demand made by the plainiff at the July term of said court,

Samples v. Walker, et al.

1841. It then proceeds to advise the sheriff, &c., that the plaintiff will move against them for the amount of the execution, and five per cent. damages on the same, for each and every month the said Walker has failed to make his return as aforesaid, and to pay over the money as aforesaid. The motion was transferred from the County Court, where it was made, to the Circuit Court, in which the death of the plaintiff was suggested, and Samples, as his administrator, made a party.

It is said in the judgment entry, that the defendant's demurrer to the notice was overruled, as well as a plea of non est factum pleaded by them; but finally the motion was submitted to a jury as on issue joined, who returned a verdict for the defendants; on which judgment was entered.

At the trial the execution was in evidence, purporting to be issued on the 7th July, 1842, returnable the 1st Monday of July, 1841, and actually returned on the 26th July, 1842. The execution docket was introduced to show that it was in fact issued in January, 1842. It was not returned within the three days next before the regular term of the court, which by law was then fixed on the 4th Monday of July, at which time it was holden. The sheriff produced the execution, in which he is required to return the writ on the first Monday in July, 1841.

The court charged the jury, that under such a state of pleading and evidence, the plaintiff was not entitled to re

cover.

To this charge the defendant excepted, and now assigns it

as error.

BOWDON, for the plaintiff in error.

WHITE, contra.

GOLDTHWAITE, J.-The whole of this case amounts to no more than this. The sheriff, in defence of a motion against himself and sureties, attempts to shew, and succeeds in shewing, the execution was made returnable on an impossible day. This is only what the plaintiff in the motion had previously admitted in his notice, as the execution is there

Holley v. Burgess.

set out precisely as it afterwards appeared in evidence.

It

is the established rule, that no sheriff will be permitted to discharge himself on account of any irregularity in process. [Watson on Sheriffs, 53; McRae v. Colclough, 2 Ala. Rep. 74; Woods v. Bondurant, 1 ib. 543; Anderson v. Cunningham, Miner, 48.] There is no question the clerk committed a mistake, both in the year and the Monday of the month, in stating the time for the return, but this did not affect the sheriff, or make it the less his duty to make the money and return the process according to law. Although it may admit of doubt whether the notice is not defective in setting out what will be moved, yet this did not warrant the court in charging that a recovery could not be had upon the evidence before the jury. For any thing which appears, the motion actually made was for not returning the execution. Judgment reversed, and cause remanded.

HOLLEY v. BURGESS.

1. An accusation that one" was whipped for stealing hogs," imports a larce

ny. It is an accusation of hog stealing, with the addition that the party had been whipped for it.

2. After an effort has been made to assail the general reputation of a plaintiff in slander, he may prove his good character.

Error to the Circuit Court of Talladega.

TRESPASS On the case, for standerous words by the defendant against the plaintiff in error.

The declaration in the usual form, charges the defendant with saying that the plaintiff "was whipped for stealing hogs." The defendant pleaded not guilty.

Holley v. Burgess.

From a bill of exceptions, it appears, that the plaintiff and defendant lived in the same neighborhood. The defendant offered to prove by several witnesses, that before and about the time of uttering the slander charged in the declaration, they had heard a report, and rumor, in different parts of the county, that the plaintiff had been whipped for stealing hogs, but they could not state that it was general at any particular place, or neighborhood. The court, on motion of the plaintiff, rejected the proof.

The defendant then offered to prove, that a short time before the words were spoken by him, another person, on the public square, in Talladega, stated, in the presence of six or eight persons, whilst the court was in session, that plaintiff had been whipped for hog stealing, but it was not shown that defendant was present or heard it. This was also rejected.

The defendant proved by a witness, that in a neighborhood in Cherokee county, where plaintiff had formerly resided, he was acquainted with the public sentiment, and that it was generally suspected and reported there, that plaintiff had been guilty of hog stealing. The plaintiff thereupon offered proof, that both before and at the time of the uttering of the slander, he had sustained a good character for, honesty, the witnesses having stated that they knew his general characDefendant objected to this proof, but the objection was

ter.

overruled.

The defendant asked the court to charge the jury, that the words in the declaration, "John Burgess, (meaning said plaintiff,) was whipped for stealing hogs," if proved as charged, would not sustain the action; that they did not import a charge of a crime; which the court refused, and charged the jury, if these words were proved, and the inuendoes, then the plaintiff had made out his case, provided it was shown, that the words were spoken with malice.

⚫ These matters are all assigned as errror.

The charge in the

WHITE and RICE, for plaintiff in error. declaration does not import a crime. The meaning is, that the plaintiff had been whipped on an accusation of stealing