Reeder v. Huffman

WEAKLEY, C. J. — This is an action for damages for breach of a constable’s bond, and the breach alleged is that Huffman, the constable, “did refuse and wholly fail to execute two writs for the seizure of personal property, which the plaintiff had recovered in detinue. The plaintiff’s evidence tended to show a refusal by the defendant to execute the writs, accompanied by the statement that they weie not worth the paper on which they were written; but the main defendant denied such refusal and statement, thus making a question for the [474] jury’s decision. A failure and refusal being alleged conjunctively, it was essential to a recovery to prove, not only that the constable failed to exercise due diligence, but that he refused to execute the process.— L. & N. R., R. Co. v. Dancy, 97 Ala. 338, 11 South. 796. The evidence was in conflict in respect of the aver-ments of the complaint, and hence the affirmative charge for the plaintiff was properly refused. In support of the assignments of error predicated upon the two charges given at the request of the defendants, it is argued merely that the charges were erroneous, because, it is said, the court should have given the affirmative charge, and should have passed on the evidence as a matter of law. We have already shown why that course could not have been properly pursued. The first interrogatory propounded to the witness Bud Haynes called merely for the uncommunicated motive or purpose of the witness in performing certain acts to which he had testified; and it was not permissible to inquire of the witness whether he would have told the constable he had the property if the constable had inquired of him about it; no such inquiry having been made. A witness should not be asked what he would have done or said if something 'else, which was not done, had happened. This would be to indulge in mere speculation. The two interrogatories were propounded as one question. There was one refusal to allow both to be answered, and one exception. There would be no error unless both subdivisions of the question were such as should have been allowed. No> error was committed in sustaining the objection to the double question. There is no error in the record. Affirmed. Haralson, Dowdell and Denson, JJ., concur.