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The Hon. ABNER S. LIPSCOMB, Chief Justice and Judge of the First Circuit.

The Hon. REUBEN SAFFOLD, Judge of the Second Circuit.

The Hon. JOHN GAYLE, JR. Judge of the Third Circuit.

The Hon. JOHN WHITE, Judge of the Fourth Circuit.

The Hon. JOHN M. TAYLOR, Judge of the Fifth Circuit.

The Hon. ANDERSON CRENSHAW, Judge of the Sixth Circuit.
The Hon. SION L. PERRY,* Judge of the Seventh Circuit.

CONSTANTINE PERKINS, Attorney General.

*Elected 9th January, 1828, said Circuit being then created.

REPORTS OF CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF ALABAMA.

CASES DETERMINED AT THE TERM OF THE FIRST MON
DAY IN JANUARY, 1827, AT TUSCALOOSA.

PRESENT AT THIS TERM, ALL THE JUDGES.

ALLEN V. MORGAN.

Garnishee in attachment answers that defendant held his note for $1200, to which he has a set off, and until settlement he knows not what is due; judgement cannot be rendered against the garnishee for the $1200, subject to the set off.

JUDGE GAYLE delivered the opinion of the Court. ALLEN was summoned as garnishee on an attachment issued at the suit of Morgan, and returned to Madison Circuit Court; and in his answer stated that he had given to the defendant his note for $1200, due 25th December, 1824, which was yet outstanding; that he has matters of set off against the note, but does not know to what amount, until a settlement with defendant.

The Circuit Court rendered judgement against Allen for the $1200, "subject to said offsets in his garnishment mentioned," and he now assigns as error, that the judgement does not shew any amount due, and that the answer does not contain sufficient certainty to be the foundation of a judgement.

It was contended in the argument that Allen was bound to know the amount due to him from the defendant, and if judgement has been rendered against him for too much,

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103 312

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Morgan.

JANUARY 1827. it must be attributed to his own negligence. If the an swer was unsatisfactory, it was competent for the plaintiff in the attachment, to require one more certain, or to have formed an issue, by which the sum really due could have been ascertained. But he has thought proper to rely entirely on the answer, and the facts therein stated must be taken as strictly true. If a jury had returned a special verdict, setting out the facts as stated in this answer, it would not have authorized the Court to render judgement for any amount. Let the judgement be reversed and the cause be remanded.

KELLY and HUTCHINSON, for plaintiff.

CLAY and M'CLUNG, for defendant in error.

Laws Ala. 311, dec. 7.

ALLEN V. HAYS.

To authorize a summary judgement against the security on a bond for the delivery of property taken in execution and claimed by a third person, the sheriff must have returned such bond forfeited.

JUDGE WHITE delivered the opinion of the Court. AN execution, issued at the instance of Hays, had been levied on a slave as the property of John Cox. Lynden Crocker claimed the slave, and entered into bond as required by the statute, with Allen his security, conditioned to return the slave, &c. A trial of the right of property being had. it was adjudged to be in Cox, the defendant to the execution. Crocker having failed to deliver the slave as required by the condition of the bond, the sheriff filed the bond in the clerk's office of Dallas Circuit Court, (from which the execution had issued,) but without any return endorsed. Hays, having given ten days notice, recovered a judgement against Allen, as security of Crocker, by motion before Dallas Circuit Court.

A bill of exceptions was taken, the matter of which is here assigned as error.

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The statute requires that if the property be not deli. vered to the sheriff, he shall forthwith return the bond to the clerk's office, &c. We believe that a technical return, and not a mere filing of the paper in the clerk's office, was

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