Page:Pennington's Executors v. Yell.pdf/5

216 the October term following. The sheriff, John L. Jones, returned upon the execution that he had levied upon a negro boy named Dick, about seven years old, and had taken a bond for his delivery on the day of sale, which was forfeited. The delivery bond made part of the return, was executed by the defendant in the execution, as principal, (who in the meantime it appears had become Elizabeth G. Ruffin) and John W. Pullen as security. The return is dated 4th October, 1841.

At the October term of the Jefferson circuit court, 1841, the defendant, Yell, moved for, and obtained a judgment upon said forfeited delivery bond against said "Elizabeth G. Smith, alias Ruffin," and John W. Pullen, for the amount of the original judgment, interest and costs. On the 10th day of November following an execution was issued thereon to the sheriff of Arkansas county, returnable to April term, 1842. The sheriff, John L. Jones, returned thereon, that on the 18th November, 1841, he levied on a negro boy by the name of Dick, about seven years old, and sold him on the 4th of April, 1842, for $180. He also endorsed his costs as amounting to $78.25, of which there is a charge of $67.50 for keeping said boy Dick 135 days, at 50 cents per day. Here the transcript closes.

Plaintiffs then introduced the depositions of John W. Irwin, M. A. Dorris and R. A. Anderson, taken by consent of parties, on behalf of plaintiffs and defendant.

Irwin testified that defendant paid him $25 or $26, of the money collected on execution against said Elizabeth G. Smith: that it was paid to him as agent of plaintiffs' testator about a year before his death.

He also testified that about a month after John E. Pennington's death, plaintiffs told defendant that if any thing could be made out of said Elizabeth, execution should be run against her, by him as soon as letters testamentary were taken out upon the estate of Pennington; and in the same conversation one of the plaintiffs expressed surprise that out of $180 collected of said Elizabeth, on execution, by the sale of the negro, only $25 was coming to Pennington; and that defendant explained, by saying