Page:Pennington's Executors v. Yell.pdf/14

Rh said Yell, or of which he might have had knowledge at, and after said sale, by the use of due diligence, and said Yell neglected to sue out further process, up to the running away of said Pullen, and the death of said Pennington, as shown by the  evidence, and the residue of said debt was thereby lost, this would be such negligence on the part of Yell as would render him liable for the residue of said judgment, interest and costs."

Which instruction the court refused to give, and plaintiffs excepted.

The court then charged the jury:

""8. That the return on said execution, levied on one negro which was sold thereunder, could be taken by the jury as a circumstance, in connection with the other evidence, from which to form their conclusion as to whether the parties had any other property at the time—and it devolves upon the plaintiffs to prove there was other property; said levy and return conducing to show that no other property existed at the time; and if they believed there was no other property, they should find for Yell.""

To which plaintiffs excepted.

The court further charged the jury:

""9. That it was the duty of Yell, as Pennington's attorney, to use reasonable diligence in ascertaining and searching whether the parties liable had property, at any time, out of which the judgment could be made; and it is not necessary, in order to make him liable, that the knowledge of the existence of the property should be brought directly home to him, it being sufficient, to render him liable, that he could have found property by the use of due and reasonable diligence.""

Plaintiffs then moved the court to instruct the jury:

"That, if the jury believe, from the evidence, that the negroes mentioned by the witness in this case were given by her father to Mrs. E. G. Smith before marriage, and they were reduced to possession by her husband after and during marriage, the title thereto vested in the husband; but, on the husband's death, the wife surviving him, and she remaining in peaceable possession for several years after his death, the dower interest of the wife