Olmstead v. Thompson

McCLELLAN, J.

The bond sued on in this case not being a good statutory undertaking (Cobb v. Thompson, 87 Ala. 381), the indorsement on the back of it purporting to have been made by the constable, to whom, by its terms, the property was to be returned, to the effect that, the property had not been returned to him as required by the bond, and that the same was returned forfeited, is no more than the es-parte, unsworn, and unofficial statement of a private person, wholly inadmissible as evidence of the fact that the condition of the bond had been broken by a failure to re-deliver the property, if objection had been made to it. But we gather from the bill of exceptions that this indorsement was offered and read in evidence as a part, of the bond, without objection. The parties thus treated it as competent evidence of the fact it sets forth, and thereby invested it with probative force which, but for its being mutually taken and considered as evidence, it would not have had. Objections to its competency, now for the lirst time presented, will not avail the appellant, “either for the purpose of putting the lower court in error in admitting it, or for the purpose of having this court exclude it in passing upon the sufficiency of the proof to support the” judgment. Rice v. Tobias, 89 Ala. 214; Glennon v. Mittenight, 87 Ala. 455; Seals v. Robinson, 75 Ala. 363; Binford v. Dement, 72 Ala. 491; Perry & Hale Counties v. R. R. Co., 65 Ala. 391.

This evidence tended to show that the property had not been re-delivered according to the condition of the bond. There was absolutely no fact or circumstance adduced in evidence which went to rebut this tendency, but, on the contrary, it, perhaps, receives a shade of corroboration from the established fact, that no part of the debt or cost for which judgment was entered in the suit in which the, property was attached had been paid; and in any view, every other fact proved is in perfect harmony with the conclusion to which it *130points. Our opinion is, that it was sufficient proof of the breach of the bond to support the judgment.

The other assignments of error are not insisted on in the argument of counsel. It is, and has long been, the practice of this court, not to consider assignments which are unsupported by brief or argument, at least, in all cases where, as here, any brief is filed, or argument is made at the liar, unless the matter assigned involves the jurisdiction of the trial court. — 3 Brick. Dig., p. TO, § 125.

We avail ourselves of this practice, however, only to the extent of not enlarging upon the other points presented by the assignments. We have considered them, and find them without merit.—Adler v. Potter, 57 Ala. 571.

The judgment- is affirmed.