Page:Pennington's Executors v. Yell.pdf/11

222 for his delivery, which was forfeited. I then returned the execution. A pluries execution was, issued in said case, and placed in my hands; I levied the same upon the said boy Dick, and sold him for $180, by Yell executing to me his bond of indemnity. This negro, with all the rest of the property then held by E. G. Smith was in dispute, and I did not feel bound to sell unless I was indemnified. I have Yell's bond of indemnity yet, signed by him only. My costs for keeping and clothing said boy amounted to $70, which fees I retained, as I considered I had a right to do by law.

Defendant then proved that he had paid costs in the case in the transcript aforesaid mentioned, to the clerk of Jefferson circuit court, $4.25; to the sheriff of Arkansas county, $78.25, and that, out of the moneys collected on said execution, he had paid over to Pennington $26.12½, being the same sum referred to in the deposition of Irwin.

That for services rendered to Pennington in his lifetime in respect to the two smaller notes mentioned in the declaration, he was entitled to $20. For prosecuting the case against E. G. Smith $25.20; for writing bond of indemnity in said case $5. Plaintiffs also admitted that if defendant was entitled to make an extra charge for going to the Post of Arkansas to attend to execution, and if he performed that service, his charge therefor of $20 was reasonable—also a charge of $10 for advising plaintiffs in reference to the mode of proceeding with the will of their testator.

The above being all the evidence, the court proceeded to instruct the jury as follows:

"G: 1. The declaration in this case presents two aspects: Under the count for money had and received, if the jury believe from the evidence that said defendant received any money belonging to said Pennington in his lifetime, or collected any moneys on the claims placed in his hands by Pennington, the plaintiffs are entitled to recover so much money as was so received, after demand made therefor and refusal to pay, after deducting therefrom all costs paid out by said Yell in the suit