Page:Pennington's Executors v. Yell.pdf/4

Rh 3. The court admitted illegal evidence on the part of defendant.

4. That the jury in making up their verdict acted upon other facts than those proven on the trial.

5. The verdict was contrary to law and evidence.

The court overruled the motion, and plaintiffs excepted, and put the evidence &c., upon record by bill of exceptions.

From the bill of exceptions, it appears that, on the trial, plaintiffs read to the jury a receipt given by defendant to their testator for the note on Pullen and Smith, and also the separate note of Smith, mentioned in the declaration, which receipt is dated 16th September, 1839.

Plaintiffs stated to the jury that they did not claim any recovery as to the separate note on Smith, or the note on Croce, and admitted that said J. F. Pullen was dead and insolvent at the date of said receipt.

Plaintiffs next proved a demand upon defendant, before suit brought, for all moneys collected by him upon the claims in question, and for a final settlement of all matters connected therewith.

They then introduced a transcript of the records of the Jefferson circuit court, which was admitted by the parties to be the proceedings had therein on the note against J. F. Pullen and E. G. Smith. This transcript shows that on the 17th day of September, 1839, defendant commenced suit against said E. G. Smith upon said note, in the Jefferson circuit court, returnable to the term to commence on the 14th October, thereafter, and the sheriff returned the writ served 27th September. At the following April term, he obtained a judgment against Smith for $227.84 debt, and $11.39 damages, in favor of plaintiffs' testator. On the 26th day of May, 1840, a ''fi. fa. was issued upon the judgment, with a ca. sa.'' clause, to the sheriff of Arkansas county, returnable to the October term following. The sheriff, John W. Pullen, returned upon the execution "that the said Elizabeth G. Smith, was not to be found in Arkansas county," which return bears date July 1st, 1840.

On the 9th day of July, 1841, an ''alias fi. fa.'' was issued to the sheriff of Arkansas county upon said judgment, returnable to