Page:Pennington's Executors v. Yell.pdf/13

224 would he be under any obligation to sue said sheriff and sureties for such neglect of duty by the sheriff."

Plaintiffs objected to each of said instructions, and moved the court to modify the last instruction thus: "That if the evidence has shown that the said sheriff rendered himself and sureties liable for said debt, interest and costs, said Yell was bound to prosecute said sheriff and securities therefor, or advise his client of the facts, and his rights therein, and ask instructions as to what he should do; and if he failed to do so, and the money could have been made from said sheriff and his securities, and the debt or any part thereof was ultimately lost, the said Yell is by law responsible for such loss; and the same is recoverable on the counts for negligence." But the court refused so to modify said instruction, and proceeded to charge the jury:

""6. That if the jury believe from the evidence that the title to the property in the hands of Mrs. E. G. Smith was in dispute, and this was generally known where the property was, the sheriff was not bound to sell such property under Pennington's execution without being indemnified, and he had a right to refuse to sell without indemnity given him.""

To the giving of which instructions plaintiffs excepted.

The court further charged the jury:

""7. That if they believe from the evidence that Pennington knew what Yell had done in 'the case, and approved what he had done as the facts transpired, or afterwards, and knowing the facts settled with Yell, and the latter Paid over what was agreed on such settlement, they should find for defendant.""

To which plaintiffs excepted.

Plaintiffs then moved the court to instruct the jury:

"That if the jury believe from the evidence that after the issuance of the last execution as mentioned in the evidence, and after the sale of the negro thereunder, and the return of said writ, the said Pullen, security in the delivery bond therein, and defendant in the judgment theron, and E. G. Smith, or either of them, had sufficient property in Arkansas county, or elsewhere in this State, to pay said debt and costs, to the knowledge of