Jones v. Welch , 15 Ala. 306 ( 1849 )

COLLIER, C. J.

1. The writ of supersedeas was not a nullity, because it commanded the constable to suspend proceedings on two executions. The petition prayed the proceedings and judgments upon which each of them were founded, to be certified to the county court, that the causes might be there retried. Including both cases in the petition, and applying the supersedeas to both of them, was a matter of convenience, which could prejudice no one; for when the proceedings of the justice were returned to the justice, they would be tried as distinct causes, unless they were consolidated by the court. Murray v. Ezzell, 3 Ala. Rep. 148; Powell v. Gray, 2 Ala. Rep. 77; W. & C. Rail Road Co. v. Bingham, 5 Ala. 657; Cooper v. Maddan, 6 Ala. 431.

2. The court very properly refused to charge the jury, that upon the evidence, they should find the defendant, Jones, not guilty, and there is no valid objection to the charge, that the jury might consider of the facts, that Jones was the plaintiff in the executions, and that one of the signatures to the papers presented by the defendant, Abernathy, to Sullivan, was a circumstance, with the other proof in the cause, tending to show that Abernathy sold the property under Jones’s directions. The justice had advised the constable to demand a bond of indemnity from Jones, and it is but a reasonable presumption, that the blank paper subscribed with the name, and in the hand-writing of Jones, with the signature also of another person, was delivered to the constable by the .persons whose names were written on it, for some purpose. Whether to be filled up as such a bond, was a question for the consideration of tbe jury. It does not appear in so many words, that this paper was also sealed, but this may be presumed from the testimony of the justice, that he filled it up as an indemnifying bond ; and from the too common practice of thus delivering sealed blanks, over which words are intended to be written.

There is then no error in the ruling of the circuit court, as the jury might from the facts have inferred a notice and positive approval of the sale. The judgment is consequently affirmed.