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78. The sale by sheriff, under execution, of more goods than are sufficient to satisfy the process, will render him liable to the extent of the additional goods sold, in the action of trespass. Ibid.

79. When plaintiff in execution fails or refuses to give an indemnity bond to sheriff, as directed by statute 1807, and the sheriff has reasonable doubts whether the right in the property levied on, be in a defendant-such sheriff cannot be compelled to receive the bond of a co-defendant or security. Hall v. McHenry, 5 P. 123. 80. In proceedings against sheriff under the statutes of 1807 and 1819, for failing to return an execution, the plaintiff is required in his notice to inform the sheriff on which of the two acts authorizing the proceeding he relies. Hill, sheriff, v. State Bank, 5 P. 537.

81. To warrant the proceedings the record must also show, that it was proved, that the sheriff did not return the execution. The failure to return, in these summary proceedings, cannot be presumed, and every thing necessary to sustain the judgment must appear on the record. Ibid. 82. The proceedings authorized by these statutes, even construing them in puri materia, are not restricted to the return term of the execution.

Ibid.

S3. In an action or motion against a sheriff or his securities, to recover monies collected by him, and which it is alledged he has failed to pay over; an averment that a demand has been made before action brought is essential, and a defect in this particular will vitiate the declaration.

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Mc Broom et al. v. Governor, 6 P. 32. Broughton et al. v. State Bank, 6 P. 48.) 84. In an action against the sureties of a deceased sheriff, for moneys collected and not paid over—a demand for which, had not been presented to the sheriff's representatives within eighteen months after granting administration: it was held, that the non-presentation afforded no defence to the securities. The extinction of the debt against the sheriff, being by operation of law.

Ibid. 85. Mere passiveness, also, on the part of a creditor does not discharge a surety on a sheriff's bond; as the creditor is under no legal obligation to be active, except at the request of the surety. Ibid.

86. Notice against sheriff and securities for monies collected on execution, and which it is alledged he has not paid over, and returned executed; they must be produced at return term, and the motion indicated by them submitted, or they will be held to have spent their force and availability.

Broughton et al. v. President & Directors of the State Bunk, 6 P. 48. 87. A notice to the sheriff alone, under the statute of 1819 and 1826, authorizes a judgment against him and his securities, or any or either of them, for monies collected on a fi. fa. and not paid over, on demand duly made.

Ibid.

88. A purchaser at a sale, under an execution, will not be affected by a latent interest existing in the sheriff, in the avails of an execution, when that interest does not appear of record. Boren et al. v. McGehee 6 P. 432.

89. A sheriff is not liable as a trespasser for executing a process, when a supersedeas had been granted suspending such process, but no notice therefor had been given to the sheriff, the notice must be actual and not constructive. But although the sheriff may justify, for an act done under such process, yet no third person accompanying the sheriff can be protected, such third person being a volunteer, acts at his peril,

Morrison et ux. v.

Wright, 7 P. 67.

See Payment-Escape-Discontinuance.

SLANDER.

1. Words charging the crime against nature, are not actionable in themselves. Coburn v. Harewood, A. R. 94. 2. Slanderous words are to receive the construction which is most natural and obvious, and are to be understood in the plain and popular sense in which the rest of the world understand them. Ibid.

3. The words, "you have altered the marks of my four hogs," are in themselves actionable. Perdue v. Bennet, A. R. 138.

4. The declaration averring that the words were spoken falsely and maliciously, and with intent to subject the plaintiff to the penalty of the lawagainst altering or defacing the mark or brand, &c.; it is after verdict to be presumed, that the slanderous words charged that the altering &c. was without the owners consent.

Ibid.

Ibid.

5. No error, if judgment in slander be entered as in debt. 6. After verdict, words charging homicide generally, shall be deemed sufficient. Taylor v. Casey, A. R. 258. 7. Charge of larceny-pleas, "not guilty," and "justification," evidence to prove a larceny of like description as charged, admissible.

Adams v. Ward, 1 S. 42. 8. Defendant having plead justification, and offered no evidence to support it, shall not, after the evidence is closed, be permitted to withdraw this plea. Lea & wife v. Robertson, 1 S. 138. 9. Words which charged plaintiff with "perjury," are in themselves actionable, although they do not refer to any particular swearing. Ibid.

10. The words charged in the declaration,"she did wilfully and corruptly perjure herself on the examination before the justice;" proof that defendant in a conversation as to the proceedings before the justice, on which plaintiff had testified, said that she had sworn to two falsities does not sustain the declaration. Robertson v. Lea & wife, 1 S. 141.

11. Charge for saying that she had stolen his sheet and shirt, not sustained by proof that defendant said she had taken his sheet and shirt, and was so fond of money that nothing could slip through her fingers. Ibid.

12. In slander, where words are unequivocal and convey a direct imputation of crime, and point with certainty to the person, no colloquium is neThirmun v. Matthews, 1 S. 384. 13. To say of a person, he is a counterfeiter, is actionable per se.

cessary.

14. Words are to be construed according to their common import.

Ibid.

Ibid.

15. The words, "he swore a lie," colloquium-of plaintiff's testimony on a trial before a justice, actionable per se; nor is it necessary that the justice should have had jurisdiction, or that plaintiff was duly sworn, or that the matter charged as having been falsely sworn were material to the issue. Harris v. Purdy, 1 S. 231.

16. By statute 1S24, a general verdict on good and bad counts in slander, is good. Ibid. 17. Defendant not permitted to show that the plaintiff was an incompetent witness in the case he testified, and to which testimony, the slanderous words were directed.

18. Not necessary to prove malice or special damage.

1bid.

Ibid.

19. Words charging a party with having broken open and read a letter sent by mail, are not actionable per se.

Tillhouse v. Peck, 2 S. & P. 395, 20. It is not necessary to insert the inducement specially in every count in the declaration, such inducement being set forth in the commencement of the declaration, and referred to generally in the remaining counts by the words "aforesaid." Canterbury v. Hill, 4 S. & P. 224. 21. Words charging one with having "sworn a lie in a trial, before esquire T, actionable per se; proof being made that T was a justice of the peace. Ibid.

22. To say of a woman, "she is not chaste, and I have kept her," "I have had criminal conversation with her, I have had sexual intercourse with her," do not imply an offence made indictable by the statute of this State, consequently the words are not actionable, per se.

Berry v. Carter et ux, 4 S. & P. 387. 23. In slander under the plea of justification, the defendant will not be permitted to vary the issue tendered. Lathan v. Berry, 1 P. 110. 24. Nor would a defendant be allowed to give evidence of his subsequent justification of his slanderous words, thus creating evidence for his defence.

Ibid.

25. Evidence going to show that the plaintiff was suspected of being guilty of the offence imputed to him, by the words charged, is not admissible under the plea of justification, which plea undertakes to prove the truth of the words. Commons v. Walters, 1 P. 323–377.

26. Where a plaintiff sues for an injury done to his character by a particular charge uttered and published against him, proof of a want of character by a general suspicion of his guilt in the very particular charged, is appropriate testimony under the general issue; but it is necessary, to authorize the admisssion of such testimony, that it should obviously relate to a time anterior to the uttering of the words charged to be slanderous.

66

Ibid.

27. Although it is not sufficient in an action of slander, that the words proved to be tantamount to the words charged, it is sufficient if they be substantially the same: Thus, the words are you not afraid, as you have perjured yourself" are held to be substantially the same with these" you are perjured;" and these words are clearly actionable per se, with or without a colloquium.

Ibid.

28. If it be alledged that a particular affidavit was made, or a particular trial had, the same must be proved as laid; but if it is merely charged that defendant said of plaintiff "he swore to a lie," in reference to a certain affidavit before a justice, the words are actionable, and if they be proved in reference to such affidavit, the count will be sustained, without further proof of the proceedings before the justice of the peace.

se.

Ibid.

29. To say of a member of the legislature in reference to the future discharge of his duties, that he is “ a corrupt old tory,' " held not actionable per Hogg v. Dorrah, 2 P. 213. 30. Words charged as slanderous, are to be construed neither in their most harsh or innocent sense, but in their plain and common acceptation, and according to their popular use and obvious import.

Ibid.

31. It is well settled that words may be actionable if uttered against officers, which would not be so if spoken against common citizens; but words to be actionable as to officers, must relate to past conduct, implying criminality or moral turpitude, and not to the prospect of future misconduct in office.

Ibid.

32. To charge one with having burned a gin house, is actionable per se. Waters v. Jones. 3 P. 442.

33. To say of one "I believe you are guilty," &c. of a crime, is equivalent to a positive charge, so it is a good cause of action to say "it is the general opinion of the people of J's neighborhood that he, J., burned C's. gin house," or I can prove that J. burned the gin house of C. by H," or "that J. was in a condition about the gin house, previous to the burning of it, which caused every person in J's settlement to believe J. did burn the gin house."

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Ibid. 34. To say of J, "that he has been at different times close about where C's gin house was burnt, in disguise, with a sheep-kin or bear-skin," is not actionable.

Ibid. Ibid.

35. In this action, evidence of the plaintiff's character is admissible.

36. An averment to wit: "you (meaning the plaintiff and others) are a gang of murderers-you killed Taylor, and you know it," held to be sufficiently certain, and entitled the plaintiff to his separate action.

Chandler v. Holloway, 4 P. 17.

37. When a plaintiff avers that one, whom he is charged to have murdered, was killed, the manner of such killing need not be set out.

Ibid.

38. The principle that where words, some actionable, and others not, are alledged in a count, it is sufficient to prove those that are actionable; applies to a case where the application of some of the actionable words is shewn, and that of the others does not appear. Ibid.

39. The common law rule that a general verdict upon a declaration in slander of several counts, where one is defective, is bad; is abrogated under the statute of amendments of 1824, in all cases where the declaration contains a substantial cause of action, and a material issue is tried. Ibid. 40. The verdict upon the plea of not guilty, "that the jury find the issue for the plaintiff," &c., is sufficient.

Ibid.

41. Defendant cannot show the truth of the words charged as slanderous in mitigation of damages, but any facts or circumstances which will rebut or repel the presumption of malice, are properly admissible under the general Kennedy v. Dear, 6 P. 90:

issue.

42. Malice is essential to be shewn, and therefore, when a defendant has charged plaintiff with perjury, for having used the term "violent" in an affidavit, describing an assault and battery committed by defendant on plaintiff, the legal import of which term appears to have been misapprehended, it may be shewn in mitigation of damages, and to rebut the presumption of malice, that defendant uttered the slanderous words with reference alone to his understanding of the plaintiff's use of the term "violent.” Ibid.

STATUTES, CONSTRUCTION OF.

1. When a generic term is employed in a statute, and is succeeded by one more definite in its meaning, it is necessary in an indictment, upon such statute, to use the particular and not the general term.

State v. Pluncket, 1 S. 11.

2. The statute of 1811, against marking hogs without the owner's consent, and imposing a penalty of twenty dollars, to be recovered in an action of debt, "supersedes and must be considered as repealing the 24th section of the act of 1807." Reagh v. Spann, 3 S. 100.

3. Under that statute no previous connection of the offence is required to recover the penalty-proof of the commission of the act at time of trial is sufficient.

Ibid.

4. Under this statute a judgment final on demurrer cannot be rendered, the penalty can be recovered only on a trial on the merits, on proof or confession of the guilt.

Ibid.

5. The statute of 1819, does not divest the court of law and equity in this State of a general superintending control over the pleadings and proceedings of suitors therein: they may set aside office judgments, whether of default or non suit, upon cause, and even after judgment has been perfected. Acre v. Ross, adm. 3 S. 288.

6. The act of 15th December 1821, conferring a military title, and settling an annuity for life upon Samuel Dale, for services rendered and losses sustained during the creek war, as set forth in the preamble thereto, was an act of ordinary legislation and created no obligation or contract, on the part of the State, nor vested any right in the annuitant, and it was competent for the Legislature, at any subsequent time, to repeal the said act.

Dale v. Governor, 3 S. 387. 7. The statute of 1812, which relates to the action of assumpsit for rent, applies only to cases of demise, and when there exists an agreement creating the relation of landlord and tenant. Bell v, Ellis heirs, 1 S. 294.

8. The act of 1823, declaring a forfeiture of the charter of the Huntsville bank, to ensue from a failure to pay specie for its notes, did not take from the bank the right to sue in its corporate capacity.

Huntsville Bank v. McGehee, 1 S. & P. 306. 9. The 11th and 13th section statute 1807, "concerning witnesses, contain distinct and independent provisions for taking testimony in the different modes presented, and a party seeking such testimony is at liberty to select Glover v. Millings, 1 S. & P. 28.

either course.

10. The statute of the State, in relation to lost notes, does not deprive chancery of jurisdiction. Tindall v. Childress & May, 2 S. & P. 250. 11. Statute 1820, providing for the reservation of novel and difficult questions, in criminal cases, was intended to exclude misdemeanors.

Callahan v. State, 2 S, & P. 379. 12. The statute allowing a party his own oath, when the writ in controversy does not exceed $20, is an innovation of the common laws, and must be construed strictly. Lock v. Miller, 3 S. & P. 13.

13. The statute of 1827, in relation to summary proceedings on bonds given to officers indemnifying them against levy and sale, is not to be construed strictly against the officers in favor of the obligors,

Atwood v. Craig, 3 S. & P. 21.

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