Hill v. Ward. cutions against the plaintiff, in favor of one William D. Stewart, as well as others, levied on said slave, and publicly exposed her to sale at auction, to the highest bidder, for cash, as the property of the said plaintiff, to satisfy said fi. fa's, when and where the defendant, without probable, or justifiable cause, but wantonly, &c. publicly forbid the sale of said negro slave, under a pretended claim of title to the same, whereby, persons being deterred from bidding, she was knocked off at a price greatly below her real value, and below what she would otherwise have brought, but for such interference, to plaintiff's damage," &c. A declaration must alledge all the circumstances essential in law to the support of the action, and these circumstances must be stated with such precision, certainty and clearness, that the defendant may know what he is called upon to answer, and be able to plead a direct and unequivocal plea. In actions for slander, both as it respects the reputation of a party, or his title to property, the slanderous words should be set out in the declaration. 1 Chit. Pl. 404; Yundt v. Yundt, 12 Sergt. & R. 427. The pleader in this case, aware of the rule, has framed the other counts of his declaration in strict conformity to the law. We are clearly of opinion, the two counts above mentioned are bad on general demurrer. See forms, 8 Wentworth's Pl. 299; 2 Chitty's Pl. 641. It is not averred in these counts what the defendant said-nor what title he set up; nor is it stated that the words were spoken in the presence or hearing of the bidders. Conceding that a party is liable for any false and malicious words spoken to the prejudice of another, if special damage ensue, the allegations contained in these counts, in our opinion, do not bring them within this rule. See 4 Ala. R. 18; Starkie on Slander, 204-5. There was no error in permitting the defendant, in order to rebut any presumption of malice, to show that he was advised by an attorney at law, to forbid the sale of the slave. The facts show, the slave was sold under execution against the plaintiff, and was seized by the sheriff, while in defendant's possession, by virtue of a mortgage made by the plaintiff to the defendant. On the morning before the sale, the defendant obtained the advice of counsel as to the course for Hill v. Ward. him to pursue, and was instructed to forbid the selling of the slave, so as to render his mortgage deed effectual. The admissibility of such testimony, with the qualifications under which it is to be received, is laid down in the case of Chandler v. McPherson, 11 Ala. Rep. 916, and cases there cited. It was held, and we think correctly, that malice must be shown, or implied from the circumstances, in order to entitle the plaintiff in such actions to recover. Starkie on Sl. 205. The circumstances of the defendant's title and interest, may rebut the implication of malice, and the fact that he was advised by counsel, learned in the law, upon a fair representation of his claim, that it was necessary for his protection to forbid the sale, is proper for the jury, in determining whether the interference of the defendant was wanton, or was called for by a desire to protect what he was advised was his rights. Star. Sl. 203. It follows from what we have said, that there was no error in the charge of the court "that unless they should believe that the defendant was actuated by malice in forbidding the sale, and that the words used by him in regard to his claim to said slave were false, they must find for the defendant. It is sufficient if the defendant have a bona fide claim, or color of title, which he asserts in good faith. His title need not be paramount to that which the plaintiff claims; for if an action should lie, when the defendant claims bona fide an interest, how can any one make claim or title, or begin any suit, or seek advice and counsel, without subjecting himself to an action. The question of malice was properly referred to the jury by the court, and they, by their verdict, have found the defendant asserted his claim in good faith, and as we are satisfied that malice is a necessary ingredient to entitle the plaintiff to recover, the court did not err in refusing the charges asked, which assume that a recovery may be had by reason of the invalidity of the defendant's title, in the absence of malice. Let the judgment be affirmed. Casky, et al. v. Haviland, Risley & Co. CASKY, ET AL. V. HAVILAND, RISLEY & Co. 1. It is not necessary, in a notice to a sheriff, that a motion will be made against him for a neglect of duty, to alledge that his official character continued, up to the time when a fieri facias placed in his hands was returnable. 2. The forms of returns to be made to process, as prescribed by statute, are not exclusive of all others, expressing the same meaning. A return of a sheriff to an execution, which states a levy and sale of certain lands, and the appropriation of the proceeds to older executions, but which does not affirm, that the defendant had no other property from which the residue of the execution can be satisfied, is substantially defective. 3. The refusal of a court, pending a motion against the sheriff, to permit him to amend his return, cannot be assigned as error in the judgment upon the motion. If the party is prejudiced by the refusal, the remedy is by mandamus. 4. A judgment will not be reversed because a charge, legal in itself, may not be sufficiently full, or is calculated to mislead the jury; but additional or explanatory charges should be moved for. 5. It is not the duty of the sheriff to return the execution to any one but the clerk, or his deputies; but must use all reasonable diligence, to make a due return to the clerk. 6. When the declarations of a sheriff constitute a part of his acts, they are admissible as part of the res gestae against his sureties. 7. It is not necessary in a motion against the sheriff and his sureties, for neglect of duty of the former, that the jury should be satisfied beyond a reasonable doubt, that the plaintiff's case, or the defence has been made out. All that is necessary, is, that there should be such a preponderance of proof as will convince the judgment, by the application of the ordinary tests of truth. Writ of Error to the County Court of Randolph. In the transcript, there is a notice addressed to Robert Casky, late sheriff of Randolph, informing him that during the term of the county court of Randolph county to be holden on the fourth Monday of July, 1846, the defendants in error would move for judgment under the act of 1819, against him and the sureties in his official bond, as sheriff of Ran Casky, et al. v. Haviland, Risley & Co. dolph, for the amount of a fieri facias issued from that court in favor of the plaintiff in the motion against John Gooden and Lawson B. McKee, for the sum of $305 81 damages, and the sum of $13 43 costs; which fi. fa. is tested of the 11th March, 1845, and was placed in the hands of Casky on the 25th of the same month-he being then sheriff, to be executed and returned according to law. The notice is dated the 8th of July, 1846, and alledges that the fi. fa. therein described was returnable to the county court of Randolph, on the fourth Monday of July, 1845, and that Casky hadfailed to return the same according to law. At the term of the court when the notice indicated that the motion would be made, the parties appeared, and the defendant moved the court to quash the notice for defects apparent on its face, which motion was overruled. In the transcript, it is stated that the defendant, Casky, demurred to the notice, and the plaintiffs joined therein; the judgment entry takes no notice of the action of the court thereon, but the bill of exceptions states that the demurrer was overruled. Issue was taken upon the notice and submitted to a jury, who returned a verdict for the plaintiff, and judgment was thereon rendered against the sheriff, and the persons who were shown to be his sureties. From a bill of exceptions, sealed at the instance of the defendants, it appears that the plaintiffs offered in evidence the fieri facias described in their notice, and proved that the defendant, Casky, was sheriff of Randolph when it was placed in his hands, and also when it was returnable. This defendant however objected to evidence of the fact that he was sheriff after the reception of the execution, on the ground that there was no averment in the notice to authorize it, but the objection was overruled, and the defendant excepted. Plaintiffs then offered to prove the declarations of Casky, made in the absence of his sureties; to the admission of this evidence the defendants objected, but their objection was overruled, and proof of the declarations admitted. The defence relied on was, that the deputy in whose hands the execution was placed, went to the office of the clerk for the purpose of returning the same, either a few days before it was returnable, or on the day of its return; Casky, et al. v. Haviland, Risley & Co. that the clerk was absent, the office closed, and neither himself or deputy could be found. Thereupon a witness was offered, who stated, that in the summer of 1845, and a few days before the sitting of the court, according to witnesses best recollection, (but he could not state the precise time,) he saw the deputy referred to, at the court house, who inquired of him where the clerk was, or any person who was doing business for him, and the deputy also informed witness that he wished to return to the office of the clerk some papers then in his hands, but could not find any person to receive them. Witness could not identify the execution in question, or state whether it was mentioned by the deputy. To rebut this testimony, the plaintiffs proved by the clerk, that on Wednesday, Thursday and Friday before the court was holden, that he (the clerk) was in town, and the most of the time in his office. It was also shown, that the clerk was absent from home, from some time in May up to the Tuesday night before the court was holden, and that he had no sworn deputy; but in his absence one W. H. Cunningham was in the habit of doing business for him. During the absence of the clerk, Cunningham was occasionally absent; when this occurred, the key of the office was left with J. Benton, or A. J. Hamilton-and at such times they occasionally attended to the business of the office. But there was no proof that either of these persons were known to the deputy as such representative of the clerk. The defendant's counsel prayed the court to charge the jury as follows: 1. That they must be satisfied beyond a reasonable doubt, that the defendant failed to return the fieri facias in question, and that he had no reasonable excuse for such failure, or else they must find for the defendant. This charge was refused, and the jury were instructed, that it devolved upon the plaintiffs to satisfy them beyond a reasonable doubt of the failure to return, and that the defendant was sheriff; that if this was shown, it then devolved upon the defendant to show that he had a reasonable excuse; and that the question of a reasonable doubt did not arise on the excuse, although the statute under which the recovery was sought was highly penal. 2. That if they believed that the failure to return did not |