Page:Pennington's Executors v. Yell.pdf/22

Rh inference in this aspect can be drawn against the defendant. On the contrary, it is clear, from the whole evidence, that he has demeaned himself throughout, in this respect, in a manmer altogether unexceptionable.

The first writ of execution (being a fi. fa. with an alternate ca. sa. clause) was issued with promptitude, and although there was subsequently a hiatus of near nine months between the return day of this writ of execution and the issuance of the alias, the return of the sheriff on the first, that the defendant "was not to be found in his county," was, under the state of the case, as to this point, as shown by the testimony, amply sufficient, in our opinion, to exonerate the defendant from gross negligence in this delay. There was also, we think, sufficient legal testimony to authorize the jury to find that, in failing to sue out further process of execution against the defendant, Smith, after the sale of the negro, the defendant in this action was influenced bona fide by a prudent regard for the interest of his client, and to exonerate him as to this conduct from gross negligence.

But we are unable to find any testimony in the record going to exonerate him from the duty of taking further steps against Pullen, the security in the forthcoming bond. This bond had been taken by the sheriff of Arkansas county in discharge of his official duty, and a part of this duty in the premises was to take sufficient security. This, of itself, in the absence of testimony to the contrary, would have authorized a prudent man to infer that Pullen was solvent. And although there was no direct evidence that the defendant knew Pullen's place of residence, reasonable diligence would have induced him to make enquiry as to the fact from the sheriff of Arkansas county, who had taken the forthcoming bond, if indeed he was uninformed as to this fact. No such exonerating proof was adduced, nor are there any facts or circumstances proven as to Pullen's pecuniary condition or other collateral facts that authorized a finding that in failing to pursue him with other process the defendant was superinduced bona fide by a prudent regard for the interest of his client.