Welch v. Fourier

ORMOND, J. In McRae v. Colclough, [2 Ala. 74,] it was held, that notice of the intended motion against a defaulting sheriff, was sufficient, if it specified the term of the court, without designating the day of the term.of the court at which the motion would be made. The two statutes are alike, both requiring three days’.notice to be given of the time and place of making the motion. That decision must, therefore, govern this case. Where sureties, as in this case, appear and unite with their principal in the defence, a plea to the merits will be an admission of the fact of suretyship, and supersede the necessity of proving it. Such proof would only become necessary on the plea of non est factum. See Reid v. The P. & M. Bank of Mobile, [3 Ala. Rep. 712,] where the point was thus ruled. The same principle [518] applies to the constable who, by pleading to the merits, admitted the character in which he was sued. It was not necessary that the jury should have found expressly that a demand was made oí the constable for the money. The penalty which has been recovered in this case, depends, it is true, on that fact; but the statute does not require that the fact should bo expressly found bj' the jury, if one is empannclled. In the absence of any such requisition, the finding of the jury for the plaintiff, on the issue, is conclusive that those facts were proved, upon which alone their verdict could be founded. There is no error in the judgment, and it must, therefore, be affirmed.