Volume 1 — Alabama Reports

THIS action was brought in the court below by the defendant in error, to recover of the Bank a sum of money alleged to have been improperly demanded and received by the Bank on a note given for the purchase of a pari of a sixteenth section.

Writ of error to the Circuit Court of Lqwndes County. Scire facias on a bail bond executed 10th April, 1837. Ca. sa,. issued against the principal 29th August, 1S38, and returned non est inventus.

<p>1. The writ of Mandamus will be granted only where there is a specific legal right, and no other legal remedy adequate to enforce that right.</p> <p>2. It is competent for a party aggrieved by a final order in the settlement of an estate of a deceased person, or in directing its' distribution, to prosecute a writ of error; and that the record may show Ins objection to the order, he may require the Judge of the County Court to seal a bill of exceptions.</p> <p>3. But where the Judge altogether declined proceeding in the settlement, or distribution of the estate, then, as there would be no order to appeal from, a party aggrieved might be entitled to a Mandamus — but quere: should not the application for the writ be made to the Circuit Court of the County.</p>

THE action in the court below was on a promissory note, of which the plaintiff in error was the maker. On the trial below a bill of exceptions was taken, from which it appears that the plaintiff in error signed his name to a blank piece of paper, and handed the same to one John G. Porter, and authorized him to fill it up with the sum of one thousand dollars, payable to some bank in Mobile, but was not indebted to the said Porter.

This is an action of debt brought by the obligee against one of the obligors of a bond given under the statute, to enable an imprisoned [debtor to have the liberty of the prison bounds. The bond is described as executed on the 6th October, ÍS37. — ■ The breach of the condition of the bond by making, an escape, is alledged to have been made on the 7th October, 1837. The declaration is in the usual form, and judgment was rendered on demurrer in favor of the plaintiff.

This case comes here from the chancery court, holden at Mobile.

THE case was brought to this Court for the revision of novel anti difficult questions which are particularly set out in the opinion of the Court.

Writ of error to the Circuit Court of Macon County. Action of assumpsit on the money counts. Plea,, non assumpsit. THE bill of exceptions taken by Boyd, at the trial, declares that sometime during the year 1836, he was the captain of a company of volunteers engaged against the Creek Indians; that the company was supplied with neither waggons or provisions by the General Government; but supplied ihemselves.

THE defendant in error having recovered a judgment against Ezekiel Nichols and others in the County Court of Montgomery, filed his affidavit, pursuant to the statute, with the clerk of that Court, alleging that the defendants in the judgment had no property in their possession; and that he had Just cause to believe that the plaintiff in error was indebted to them, or had effects of theirs in his hands: Whereupon, a garnishment was issued and served on the plaintiff in error,…

<p>Error to the Circuit Court of Pike County.</p> <p>This was an action of assumpsit brought by tho defendants in error as the endorsers of a promissory notc'for the sum of nine hundred and fifty-two and forty-three hundredth dollars, made by the plaintiff in error, to Messrs. McMahan and Brothers, or order. The defendant below pleaded non-assumpsit, set-off, failure, and want of consideration, in short by consent, the plaintiff below obtained a judgment.</p> <p>During the progress of the cause in the Court below a bill of exceptions was taken to the opinion of the Court from which it appears than the plaintiff in error (defendant below) offered to prove that a partnership had formerly existed between himself and two persons by the name of McMahan, under the firm of McMahan, Murchie, & Co., which was dissolved, and that on the dissolution the firm was indebted to him upwards of seven hundred dollars: that his two partners and another entered into a partnership under the firm of McMahan and Brothers, one of whom retained the funds oí (he late firm of McMahan, Murchie & Co. That the new firm of McMahan & Brothers proposed to the plaintiff in error to sell him goods, and he agreed to buy if the debt due him from the late firm of McMahan, Murchie & Co., should be received in payment. This was agreed to, and the debt of the old firm to plaintiff in error assumed by them, but they insisted"that the plaintiff iu error should give his note, (the one sued on) as evidence of the amount of purchase, until-it could he precisely ascertained how much McMahan, Murchio & Co. owed the plaintiff iu error.</p> <p>This evidence the Court rejected on the ground that it varied the terms of the written instrument. To this opinion of the Court an exception was taken, and the refusal of the Court is now assigned for error.</p>

Writ of error to the Circuit Court of Wilcox County. ACTION of assumpsit by Kennedy as the endorser against Manship and two others, as the makers of a promissory note: pleas non-assumpsit, payment, and set off. The note sued on was payable to one Burton, and by him endorsed to one Hanks, and by him endorsed to Kennedy. At the trial, the defendant, Manship offered a note made by Hanks to one Holly or bearer, dated 2Sth August, 1837, due, and belonging to Manship.

The defendant in error declared against the plaintiffs in the Circuit Court of Pike, in an action of assumpsit founded on a promissory note.

IN this case the plaintiff in error was cited to appear and answer as a garnishee upon an affidavit of the defendants in error, that they had obtained judgment against Pell & Carpenter and John Gordon, for two hundred and sixty nine and forty-one hundredth dollars, that the writ of fieri facias had been returned “no property found,” and that they believed the plaintiff in error had funds of the defendants to said judgment, in his hands.

Writ of error to the County Court of Montgomery County. Motion for judgment.

THE plaintiff in error brought an action of detinue in the Circuit Court of Mobile, for the recovery of two slaves, of the defendant.

THIS was an action of assumpsit brought by the defendant in error against the plaintiff in error* The declaration is in the usual form. The pleas which are filed in short are— 1. Non assumpsit. 2. That the cause of action did not accrue within three years next before the commencement of the plaintiff’s action. 3. Statute of limitations.

Writ of error to the Circuit Court of Montgomery County. POST & Main declared against Lewis in an action of assumpsit on a promissory note, described as having been made by the defendant, by the name of Lewis & Barry.

J. S. Smith 8,' Co. for the use of Hugh A. Harralson, caused to be issued a writ of capias ad respondendum against the plaintiff in error, returnable to the CircuiCCourt of Russell, and endorsed as the cause of action, a copy of a promissory note, as follows: “$306 25-100ths. Due J. S. Smith & Co. or bearer, three hundred and six and twenty-live hundredths dollars, value rec’d. Columbus, Jan’y. 18th, 1S37.

The claimant also succeeded in the Circuit Court, and judgment was rendered in his favor against the plaintiff in execution and his sureties to the appeal bond.

Writ of Error to the Circuit Court of Russell County. ASSUMPSIT on a promissory note, described as having been made at Columbus, Geo., on the 10th day of August, 1836, for forly-two dollars, payable one day after date. The writ issued 29th September, 1S3S, and there was then due on the note, only forty-eight and eighty-seventh hundrelhs dollars, for principal and interest, if the latter is computed at eight per cent.

John S. Rhea, James Conner and James W. Rhea, merchants and copartners heretofore trading under the style of Rhea, Conner & Co. declared in assumpsit in the Circuit Court of Cherokee, against the plaintiffs in error, on a promissory note. A demurrer being filed to the declaration it was overruled, and thereupon, the defendant below pleaded non assumpsit, and the parties went to trial.

THIS was an action of assumpsit brought by the defendant in error against the plaintiffs in error.

Writ of error to the County Court of Lowndes County. COVENANT to recover damages for a breach of warranty in the salé of a jack-ass. No plea was pleaded, but the cause was tried by a jury as on an issue.

<p>I. A promissory note payable to a certain person or bearer, may bo transferred by indorsement, so as to authorize the indorsee to maintain an action thereon in his own name.</p>

THIS was an action brought by the defendant in error as the indorsee of a promissory note made by the plaintiffs in error to one'Cornelius D. Tobin. The defendants below pleaded non assumpsit, payment and set-off. An agreement between the parties appears of record, which recites that the cause shall be tried in every respect, as though Cornelius D. Tobin was plaintiff. The plaintiff below had judgment.

AT a previous clay of this term, the counsel for the prisoner, presented a copy of the proceedings of a special court held in Lowndes county under the provisions of the act of 7th January, 1832, [Aikin’s Digest 124] by which it appears that the prisoner had been convicted of t.he crime of murder and received sentence of death.

A motion for a mandamus lo the cleric of the Circuit Court of Mobile, — The Supreme Court may grant a mandamus, and its jurisdiction is not appellate. (Aik. Digest 237.) The writ lies to compel the performance of duty, not merely to review the correctness of a decision, 5 Com. Dig. 33. It lies to compel a ministerial officer to do a specific act, 5 Com. Dig. 38.

THIS was an action of trespass to try title to a lot of ground in the city of Mobile, brought by the plaintiffs in error against the defendant. The defendant on the plea of not guilty, obtained a verdict.

Writ of error to tho Circuit Court of Wilcox County. APPEAL from a Justice of the Peace. In the Circuit Court, McIntosh declared against Broughton on the money counts, to which the latter pleaded non assumpsit.. At the trial it appeared that McIntosh had paid Broughton twenty dollars, in part payment for building a mill. After this payment, Broughton sued McIntosh for work and labor in building the mill, and recovered judgment for one hundred and fifty dollars.

This case comes up by writ of error from the Circuit Court of Talladega. THE defendant in error brought an action of assumpsit as the second endorsee of a promissory note, against the plaintiff, his : immediate endorser. The case was tried by a jury, upon issues* on the pleas of non assumpsit, nul tiel record, and others v?hich ¡ it is unnecessary to notice. ‡ On the trial a bill of exceptions was taken by the plaintiff ini error, to the ruling of the presiding judge.

Joseph Bates, Thomas Bates, and William O’Brien, filed their bill in Chancery, against the Planters and Merchants Bank, the Bank of Mobile, James F. Roberts, and William Magee, the sheriff of Mobile county. The bill charges, that the complainants, Joseph Bates and William O’Brien, had endorsed sundry notes of Roberts, and to a large amount. That some of the notes had been discounted by the Planters and Merchants Bank, and others by the Bank of Mobile.

Writ of Error to the Circuit Court of Perry County. Scire facias on a forfeited recognizance, the entry of the judgment nisi is in the following terms — “This day came John P. Graham, solicitor of the second judicial circuit, who prosecutes for the State of Alabama, and the defendant, Robert H. Porter, with Thomas J. Tuggle, John Howie, Henry D. Morrison and Jefferson J. Watts, at a former day, to wit: on the 24th March 1839, entered into a recognisance before one John Falls…

THE defendant in error declared against the plaintiffs in the County Court of Lowndes, for money had and received, &c. by their intestate in his lifetime. The case was submitted to the jury on the pleas of non assumpsit, set-off and payment.

THIS action of assumpsit was brought by the plaintiff in error against the defendant in error. The declaration consists of the common money counts, for money had and received, and money paid, laid out, and expended. The amount of indebtedness is laid at three thousand dollars. The defendant pleaded non assumpsit, and also that they did not promise at any time within three years next before the commencement of the suit.

BATRE filed his bill, in the Chancery Court of the first district of the Southern Division, praying the foreclosure of a mortgage, and the sale of the mortgaged estate. The mortgage was executed by Burlen Brown and Thomas S. Cowiey to George J. S. Walker, to secure the payment of certain notes executed by them as partners: these notes were afterwards assigned to Batre, the complainant’s testator.

The defendant in error, having sued out'an original attachment against the estate of Alexander Bell, for the sum of six hundred dollars, returnable to the circuit court of Greene, caused the plaintiff to be summoned as a garnishee, that he might disclose on oath what he was indebted to the defendant in attachment, etc. The garnishment being served on the plaintiff, he made the following answer, viz : — “Erie, 3rd Sept,, 1837 : I acknowledge being garnisheed by S. B. Ewing,…

<p>Error to the County Court of Pickens county.</p>

Writ of error to the County Court of Mobile County. THIS suit was commenced in the County Court of Mobile county, by Sheffield & Co., who sued out a garnishee process against Lewis as a debtor of Dubose & Kibbe, who were judgment debtors to Sheffield & Co. Lewis appeared at the return term of the process, and answered: that Daniel Mayland left in his hands two notes — one signed by J. Hunley, dated, 11th March, 183S, payable on the 15th April, to Gaius Kibbe for live hundred…

IN the record of this case, which is brought up, there is neither writ, declaration, or any thing to inform us what was the form of action. We however learn, that it was founded on a promissory note for tho payment of four hundred dollars, on a day certain.

. THIS was an action of trespass on the case brought by (he defendant in error against the plaintiff in error, on an instrument in the following words :— “Articles of agreement entered into between Wm.

Writ of error to the Circuit Court of Montgomery County. ACTION of assumpsit, for not collecting a bill of exchange. The declaration states that the Bank undertook the collection of the bill, and to make the necessary demand of payment at the time and place when and where the same was due. The breach assigned is, that the Bank omitted to present it for payment, whereby the amount was'wholly lost to the plaintiffs. Demurrer to the declaration.

THE defendant in error brought an action of assumpsit against the plaintiff’ in the circuit court of Pickens, on'a writing,, dated the twenty-third day of November, 1836, by which the plaintiff in error promised the defendant to pay to him on the-twenty-fifth day of December, eighteen hundred and thirty-eight the sum of five hundred and eighty-two dollars and fifty cents. 11 Provided” he would make to him (the plaintiff) “a satisfactory deed of two lots of land, in the town…

THE plaintiff in error commenced suit before a justice of the peace, and obtained judgment. This judgment the defendant carried by certiorari to the county court of Pickens county, where the warrant of the justice was quashed, because the name of the plaintiff did not appear in the body of the summons.

Writ of error to the County Court of Wilcox County. ACTION of assumpsit against Jones as the endorser of a promissory note made by one Shering, dated, 15th October, 1836. Payable 12 months afterdate, to Jones or bearer. The declaration contains no averment of diligence to obtain the sum due from the maker, by suit or otherwise.

THE plaintiff in error brought an action of assumpsit against the defendant upon a promissory note, for the payment of three thousand dollars. The defendants pleaded, 1st. non assumpsit; 2d. payment; 3d. set-off. ' At the trial, a bill of exceptions was sealed at the instance of the plaintiff. From this it appears, that the plaintiff having read the note declared on, rested his case.

Error lo the Circuit Court of Tuscaloosa County. Held: by titles similar to that shown above to the locus in quo, the land on which- the mill was situated, and on which Francis Baker resided, and all the land lying between said tract on which the mill and residence of Francis Baker wrnre situate and the locus in quo, forming together a consolidated body of contiguous tracts ; and both of…

Reference of a question as novel and difficult arising in a criminal case from the Circuit Count of Fayette County. THE defendant was convicted on an indictment in these words: “ The State of Alabama — Circuit Court for Fayette County, Spring Term, 1839.

This case comes up' by writ of error from the Circuit Court tof Sumter. THE defendants in error brought an action of debt against the plaintiff's on a bill single for the payment of nineteen hundred .and thirty-four dollars, on the fifteenth day of August, 1S37.

THIS action was brought by the defendant in error against the plaintiff in error, for a breach of covenant, and on the motion of the parties, the matters in controversy were referred to the award of two persons, whose award was to be entered up as the judgment of the court.

Writ of error to the Circuit Court of Benton county. McGehee & Thomas sued Johnson, in an action of trespass to try titles, to recover a tract of land in Benton county. The writ issued 26lh April, 1S36, and the trial was had at the spring term of the Circuit Court, for the year, 183S. The trial resulted in a verdict and judgment for the plaintiffs.

THIS case comes here by Writ of error from the county court of Jackson. The defendant in error, caused to be issued a petition and summons against the plaintiffs in error, returnable to the county court of Jackson; which was executed on Chambers by the Coroner of that county, and on which was the following endorsement: “ I acknowledge the service of the within writ. Feb. the 6th, 1S38.

THIS was an action of detinue, commenced in the court below, by the plaintiff in error, to recover a negro slave.

SUIT commenced by attachment in the name of James Todd, administrator of Thomas B. Wade, deceased. The writ of attachment is directed to any lawful officer, and was executed by a constable.

THE plaintiff in error caused to be issued against the 'defenfendant, a writ, in the usual form, returnable to the County Court of Dallas, and endorsed thereon, as the.cause of action, a bill of exchange, drawn by the defendant, in favor of the plaintiff, on Messrs. Simpson & Douglass, which, it is stated in the endorsement, was protested for non-acceptance. The declaration, in addition to counts on the bill, contained the common counts in assumpsit.

THIS was an action of detinue, brought by the present.plaintiff, against the present defendant, to recover,an ox. Under the general issue, the. defendant Obtained judgment.

Writ of error to the Circuit Court of Sumter County. WRIGHT sued out his writ against Drummond and one McÁIpin; but the latter was not served with process.

THE defendant in error showed to the Circuit Court of Montgomery, that a writ of fieri facias had been theretofore issued, by the clerk of that court, at the suit of the defendant, against James Harrison, for the sum of sixty dollars damages, and twelve dollars costs; that the same was placed in the hands of John W. T. Reid, on the 26th day of March, 1839, who then was, and still is the sheriff of Montgomery county; and that Reid has failed and refused to make the money…

THIS was an action of trespass, to recover damages for entering the plaintiff’s close, brought in the court below by lb® defendant in error, against the plaintiff in error; on the plea of not guilty, the plaintiff below had judgment.

Writ of error to the Circuit Court of Benton County. ACTION of trespass vi et armis. Demurrer to the decíaration. Demurrer overruled. Each defendant then severally-pleaded not guilty. The pleadings need not be stated, as no opinion is given by the court, on the assignment of error respecting the demurrer.

<p>1. Where a non-suit was claimed in the Clerk’s office in vacation, for want of a declaration, ami afterwards, without noticing the proceeding in the clerk’s office, a declaration was filed, and a judgment by default, rendered agai dant, it tv«3 held not to be erroneous.</p>

Writ of error to the Circuit Court of Sumter County. THIS was an action commenced in the court below, by the plaintiffs in this court, against the defendants on a promissory note. The court, on motion of the defendants, quashed the writ. The entry of the judgment is in these words: “Motion to quash, because the form of action as presented in the writ, is one unknown to the law.

Writ of error to the Circuit Court of Cherokee County. THIS was a motion for judgment against the defendant, as sheriff of Cherokee county, on a suggestion, that he could, by the using of due diligence, have made the money on an execution issued at the suit of the plaintiffs, against Robert Bell, and which came to the defendant, as sheriff An issue was formed under the direction of the court, which was found against the plaintiffs.

THE plaintiff in error, caused to be issued against tbe defendants, a notice, of which a copy is set out below, viz: “The State of Alabama, Tuscaloosa Coüntv. In the County Court, July Term, 1S39. To the President and Directors of the Bank of the State of Alabama.

THIS was an action' of forcible detainer, brought by the defendant in error, before a justice of the peace, to recover the possession of a house and lot, in the town of Welumpka. The petition does not state, that the possession of the premises was ever in the defendant in error; but the recovery is sought on the possession of the defendant’s-intestate.

Writ of error to the Circuit Court of Pickens County. JOHN T. Rich sued out his writ against Henry H. Mitchell, William Rix, George Rix, and Reuben Rich ; describing them, as late merchants in trade, doing business under the name, firm, and style of Mitchell, Rix & Co. : and against same parties as late merchants in trade, under the name, firm, and style of Rix, Rich & Co. The writ was served on Reuben Rich only, and returned not found as to the other defendants.

<p>1. The President pro tem. of the Branch Bank at Mobile, may certify under its charter, that a note sued on, is bona fide the property of that-Branch.</p>

Writ of error to the Circuit Court of Madison County. THIS was an action of assumpsit, brought in’the court below by the plaintiff in error, as administrator of Richard Jones, on an instrument of writing of the following tenor: Gloster, July, 21, 1823.

Writ of error to the County Court of Sumter County. GREEN sued out a writ of attachment against Pyne, describing him therein, as one of the late firm of Pyne & Huntington. The sheriff’s return shews that the process was levied “on all the goods, merchandize, and stock in trade of Thomas Pyne, in the store, by him heretofore occupied, be:ng his entire assortment in trade, estimated at about nine thousand dollars.

THE plaintiff in error brought an action of Trover against the defendant in the circuit court of Pike, for the conversion of certain negro slaves, alleged to be the property of the plaintiff. The case was submitted to the jury on the plea of “ not guilty,” and a verdict was returned for the defendant.

THIS action was brought by the defendant in error, against the plaintiffs in error, as the acceptors of a bill of exchange. Under the issue joined, on the plea of non assumpsit, the plaintiff below had judgment.

Writ of error to the Circuit Court of St. Clair County. A previous judgment was reversed in this court at a former term [7 Porter 488] and the case was remanded for further proceedings.

THIS was a proceeding against the defendant, as the sheriff of St. Clair. The plaintiff suggested to the circuit court of that county, that an execution issued on a judgment of that court, in his favor, for the sum of two hundred and eighty dollars and sixty-two cents, besides interest and cost, was placed in the defendant’s hands to make the money thereon, by a levy on, and sale of, the goods and chattels, lands and tenements, of Robert Lawson.

THIS action of assumpsit was brought in the court below, by the present plaintiff, against the present defendant, in which the defendant had judgment.

Writ of error to the Circuit Court of Walker County. MOTION for judgment against the defendants, as the securities of Hudson, late sheriff of Walker county, for the amount of an execution collected by the sheriff and not paid to the plaintiff.

THIS was a proceeding commenced by the defendant in er_ ror, before a justice of the peace of Wilcox, against Patlerson, as constable, and Rosser and Forniss as bis sureties, upon an allegation that Patterson had failed to execute a capias ad satisfaciendum theretofore placed in his hands, at the suit of the defendant in error, against James Hanks.

THIS was a motion in the court below, by the bank, for judgment against the plaintiffs in error, as makers of a promissory note, to S. Andrews, for four thousand seven hundred and twenty dollars. An issue being made between the parties, and a jury impannelled, the plaintiffs below produced and read the certificate of the president of the bank, that the note sued on was the pro-pert}7 of the bank.

Writ of error to the Circuit Court of.Sumter county. ACTION of assumpsit, to recover thea'mount of a promissory note. No plea appears in the transcript of the record; but the cause was tried by a jury, as on issue joined. Verdict and judgment for the plaintiff.

<p>1. Am application for the continuance of a cause, addresses itself to the discretion of the court, and a decision upon it, cannot bo revised by an appellate tribunal.</p> <p>2. Quero. Is not a deposition admissible as evidence, although not certified “undor the seal” of the commissioner, as directed by the commission. It certainly is, if the commission does not require such a certification.</p> <p>3. The possession of a bill by the drawee, after its maturity, is prima facie evidence of payment.</p> <p>4. Whenever a merchant sends goods to the order of his customer, duly directed by the usual mode of conveyance, he is entitled to be paid for them, unless he failed to comply with some instruction which has occasioned a loss to his customer.</p>

THE defendant in error brought an action of trover, in the ■Circuit Court of Perry, against the plaintiff, for the conversion ■of a quantity of corn in a crib, and for five stacks of fodder.

Writ of error to the Circuit Court of Talladega County. ACTION of debt on a bill single, executed by George W. §£ Isaac Stone, dated 4th January, 1836, payable on or before the' 1st January, 1837. Suit was instituted against both obligors, but was afterwards discontinued as to George W. Stone, who was not served with process. Pleas 1.

THIS was amotion in the Circuit Court of Wilcox, submitted by the defendant in error, for an order upon Jonathan M. Hill, the sheriff of that county, requiring him to apply the sum of five hundred and forty-four dollars, to the satisfaction of an alias fici'i facias in favor of James Hanks, for the use of the defendant in error, against John W. Dunn, issued from that court.

THIS action was brought by the plaintiff in error, as the last endorsee against the defendant in error, as maker of a promissory note.

Writ of error to the County Court of Tuscaloosa County. WILLIAMS sued Hinton before a justice of the peace of Tuscaloosa county, and recovered judgment for fifty dollars. Hinton appealed to the county court; and Williams there filed a statement of his cause of action as follows : — i. For unjustly detaing a mule colt, the property of the plaintiff, of the value of fifty dollars. 2.

THIS case comes here by writ of error, from the Circuit Court of Franklin. By the record, it appears that the plaintiffs in error brought an action of assumpsit against the defendant for goods, wares and merchandize sold and delivered. The case was tried upon the general issue. On the trial, an exception was taken to the refusal of the presiding Judge, to instruct the jury as requested by the plaintiffs, and to the charge given by him.

The original writ having been returned “ not found,” on motion of the plaintiffs helow a judicial attachment issued* which was executed by the sheriff, and on which he made the-following return; “By virtue of this writ, I have levied upon and taken, four negroes, viz: Cam, Jack, Kit, and Sol, and the same replevied by a bond given by the defendant and James Goodwyn.” To a declaration in the usual form, against all the defendants' below, the general issue was pleaded by John…

THE plaintiff in error, as the endorsee of the defendant, brought an action of assumpsit against him upon his endorsement, in the circuit court of Talladega. The declaration alleges as an excuse for the failure to bring suit against the maker of the note endorsed at the first court to which it could be brought after its maturity, that the defendant consented to a delay of legal proceedings.

Writ of error to the Circuit Court of Tuscaloosa County. THE defendant m error having obtained a judgment against one Richard Jones, summoned the plaintiff in error, as garnishee, upon whose answer, the court rendered judgment against'him, •from which judgment, this writ o.f error is prosecuted. The substance of the answer appears -in 41)0 opinion of the Court.

Wfit of error to the County Court of Tuscaloosa. On the 3d June, 1839, McCown & Conrow, two of the plain* tiffs in error, obtained from the judge of the county court of Tuscaloosa, an order to supercede an execution theretofore issued against their goods and chattels, lands and tenements, by the clerk of that court; they, before the order was to become operative, “first giving bond with good security, in double the amount of the executions” McCown & Conrow, entered into bond…

Writ of error to the Circuit Court of Tuscaloosa County. THIS was an action of assumpsit, brought by the plaintiff in error against the defendant in error, as bearer of a promissory note, for five thousand, three hundred and seventy dollars, made to H. F. Arrington, or bearer, by the defendant in error.

THE defendant in error brought an action of assumpsit, in-the County Court of Pickens, upon a bill of exchange, of the following- tenor, viz: “ Carrollton, Ala. March 15, 1838. ‘‘Exchange $1852 S0-100ths.

THE defendant in error, by Henry Y. Chamberlain, her fiext friend, in April, 1830, filed her bill on the equity side of the Circuit Court of Mobile. In the bill, the defendant is represented as being twelve yeai’3 of age, or thereabouts, and only child and heir of Theron Keilog, late of Mobile county deceased, who died in the summer of the year one thousand eight hundred and twenty.

This case comes here by writ of error, from the Chancery Court holden at Moulton.

<p>Motion for leave to file an Information in the nature of a quo ivatranlo against the Judge of the County Court of Tuscaloosa.</p>

THIS was a proceeding for a forcible entry and detainer, commenced by the plaintiff against the defendant, before a justice of the peace… Held: the question being in this form — Did you ever hear Payne, who was in possession, say in his lifetime under whom he held the ‘ premises described in the complaint.’ Which question was objected to by the plaintiff, and the objection sustained ; whereupon the defendant excepted, &c. It is further shown that the court charged the jury,…

THIS was a bill in chancery, filed by the plaintiff1 in error against the defendant in error, in the Chancery Court for the Southern Division, sitting at Mobile.

Writ of error to tho Circuit Court of Tuscaloosa County'. ASSUMPSIT on a promissory note. Pleas, non assumpsit, payment, and set-off. Verdict and judgment for the defendant. The Circuit Court allowed the defendant to give evidence to the jury to prove the consideration of (he note sued, to be the transfer of two notes and an account, due from one Ellege.

THE defendant in error, having given notice in due form, of his intention to move for judgment against the plaintiffs, for the amount of an execution against Samuel Pickering, theretofore collected by James M. Bondurant, as sheriff of Marengo, together with interest and damages, therupon submitted a motion to the County Court of that county, in pursuance of the notice.

THIS was an award, made in pursuance to a submission, under the statute of this State.

Writ of error to the County Court of Sumter County. ASSUMPSIT by Chisholm to the use of Bigelow & Co..r ■on a promissory note, payable to Chisholm or order Picas:'-Now assumpsit; want of consideration; and gaming.

THE defendant in error brought an action of assumpsit against the plaintiff, in the County Court of Mobile county, as the endorser of a promissory note, of the following tenor, viz: “Mobile, 17th November, 1834. “®2005 39.

BILL.to foreclose a mortgage, filed by the defendant in error, against Geo.

Writ of error to the Circuit Court of Jackson county. ACTION of -debt on a single bill against an endorser. The bill is dated in 1836, payable in 1837, and endorsed in 1837, after it beeame due. Suit commenced 17th March, 1838.

Writ of error to the County Court of Mobile. THE defendant in error having recovered a judgment against Rufus Greene in the County Court of Mobile, made an affidavit in usual form, of the impracticability of finding property out of which to satisfy, the same, and prayed that process of garnishment might issue to the plaintiffs in error, and to John B. Norris, the President, and Billups Gayle, the Cashier of the corporation.

ASSUMPSIT on a promissory note, payable and negotiable at the Branch Bank at Huntsville, by the defendant in error as endorsee, against the plaintiff in error, as endorser. Plea non-assumpsit, and judgment for plaintiff below.

Writ of error to the Circuit Court of Tuscaloosa county. Action of debt on a forthcoming bond executed in Virginia and conditioned for the delivery of certain slaves to the sheriff of Brunswick county, on a day and place named in the condition. The defendant pleaded performance of the condition and payment, on which issue was joined. At the trial, the plaintiff gave the bond described in the declaration in evidence and rested his case.

<p>On certificate from the Clerk of the Supreme Court of the United States.</p>

THIS was an action of assumpsit brought in the court below, by the testator of the defendant in error, to recover back a sum of money paid under the following circumstances: The testator of the defendant in error was a purchaser from (he University of certain lands under the act of theLegislature of 1S22; and on the 1st Monday of September, 1828, confessed a judgment in favor of the University for one hundred and ninety-eight and fifteen hundredths dollars.

Writ of error to the County Court of Madison county. Bell sued Horton as the maker of a note payable to W. H. Jones, and endorsed by him to Bell.

THE defendant in error brought an action of debt against the plaintiff, in the Circuit Court of Marengo, on a bill single, dated the 4th June, 1S35, for the payment of twelve thousand three hundred and five dollars, on the first day of January, one thousand eight hundred and thirty-eight.

THE ’plaintiff in error was summoned as garnishee, at the instance of the defendants, to answer whether he was not indebted to one Samuel Redus, against whom the testators of the defendants in error had obtained judgment.

Writ of error to the circuit court of Cherokee county. DECLARATION in assumpsit. Counts on acontract of bailment, and a count on a quantum meruit for the sale of goods. Pleas: non ssumpsit, pay ment, and set-off. The two first counts show a contract betwen the parties, that the defendant should receive certain goods on storage, and safely and securely keep them for the plaintiff.

THIS was a summary proceeding, by notice, in the County Court of Morgan, to recover the amount of a promissory note, made by the plaintiffs in error, on the 30th of September, 1837, for the payment of two thousand dollars, to the defendant in error, in three equal annual instalments, being for money lent by the defendant, under the provisions of the twenty-first section of an act passed by the Legislature in June, 1837, entitled “ an act to extend the time of indebtedness of…

DEBT on writing obligatory for eight hundred dollars, by the plaintiffs in error, against the defendant in error. The defendant Patillo, failing to appear and plead, a judgment by default, was rendered against him.

Writ of error to the Circuit Court of Tuscaloosa county. ACTION of debt. Plea in abatement of the action, because a copy of the writ was not served on the defendant as required by law, in this, that the paper purporting to be such copy, required the defendant to appear on the first Monday in February* 1839. Demurrer and judgment thereon, in favor of the defendant.

Writ of error to the County Court of Morgan. THE record in this ease is in all respects similar to that in Sale el al. v. The Branch Bank at Decatur, ante, with the exception that the certificate of the president of the bank is here set out in extenso, and is as follows; “ The State of Alabama, Morgan county.

ASSUMPSIT on a promissory note. Plea, non assumpsit; verdict and judgment for plaintiff below. From a bill of exceptions, taken in the cause, it appears that one Palmer made a parol contract with the plaintiff in error, for the sale of a tract of land, and put him in possession.

A reference of questions as novel and difficult from the Circuit Court of Walker County. INDICTMENT for playing at cards in a public place. Several pleas in abatement were pleaded by the defendant, of which two only are necessary lo be examined, the'others not being within the reference to the Supreme Court.

THE plaintiff in error declared against the defendant, in the Circuit Court of Lauderdale, for the breach of a warranty of soundness contained in a bill ef sale, by which the agent of the defendant, in consideration of five hundred and twenty-five dollars, transferred the right to a negro boy named Jackson, to the plaintiff.

The facts of the case, as set out in a bill of exceptions taken at the trial, are that the defendant in error, about eighteen months after his removal to this State from South Carolina, sold and conveyed by bill of sale, the negro woman in controversy, to one Robert Sweet.

Writ of error to the Circuit Court of Perry County. ASSUMPSIT. — One count is on a promissory note, averred to have been lost; this note is described as bearing date and and payable sometime during the last of the m,onlh of October, or about the first of the month of November, 1838. The count then alleges that the note was lost or mislaid “ as appears by the affidavit here produced and shewn to the court.” To this was added the common money counts.

<p>1. A motion to dismiss a writ of error, on the ground that it does not set out the names of all the defendants, will not be entertained after joinder in error.</p> <p>2. Where it appeared from the record that the plaintiff recovered a verdict and judgment in a proceeding for a forcible detainer, before a justice of the peace, and afterwards the case found its way to the circuit court, where the defendant assigned errors — and the entry of the judgment shows that the parties came by their attorneys, and that the questions of law arising upon the assignment, were fully argued held thatit is not an available objection to the proceedings in the circuit court, that the cause does not appear to have been taken there by certiorari; it will be intended that a certiorari was either waived or lost.</p> <p>3. Where the complaint in a proceeding for a forcible detainer substantially conforms to the statute, the circuit court in reversing the judgment of a justice of the peace at the instance of the defendant, should direct that the cause be remanded.</p>

THIS was a bill filed for specific performance, by the plaintiff in error, against the defendant in error.

Writ of error to the Circuit Court of Barbour Ccunty. Field & Morgan declare against Clark & Welborne as the joint makers of a promissory note dated at Irwinton, Alabama, 12th January, 1838, payable on the 1st January, 183.9, to S. W. Brown or bearer. Brown transferred the note by delivery to one Robinson, who indorsed it to Field & Morgan.

THE defendant in error declared against the plaintiff, in assumpsit, in the circuit court of Cherokee. 1. For goods, wares and merchandise, sold and delivered. 2.

THIS action was assumpsit, brought by the plaintiffs in error as endorsees, against the defendants in error as endorsers, of a promissory note, made by one McCoy, and payable to D. A. Wilkins, on the 1st February, 1S38.

Writ of error to the Circuit Court of Greene County. EJECTMENT to recover a tract of land,-described in the declaration. Plea; Not guilty. The lessors of the plaintiff claimed title, as the heirs at law of Richard S. Lewis.

This case comes here by writ of error from the Chancery Court holden at Tuscaloosa. The plaintiffs in error were complainants below. In their bill they allege that the defendants testator executed and delivered to Martin Phifer of Cabarrus county, North Carolina, a writing obligatory to the effect following: “Twelve months after date, I promise to pay unto Martin Phifer or order, the sum of one thousand dollars with interest from the date, for value received by me.

THIS case is brought to this court, on exceptions to the report of the Master in chancery.

Writ of error to the Circuit Court of Russell County. ACTION of debt. The declaration is to the following effect: “ John J. Harper complains of Wesley Williams in a plea, that he renderto him the sum of twenty-five hundred dollars, with interest thereon, which he, the said defendant owes to and unjustly detains from him, the said plaintiff.

THIS was an action of assumpsit brought by the defendant in error in the County Court of Tuscaloosa. The cause of action is a promissory note of the following tenor: “ Dollars 750 00. Tuscaloosa, January the 2d, 1837. “ On the first day of January, eighteen hundred and thirty. nine, I promise to pay Abel Pennington or bearer, seven hundred and fifty dollars, for value received. “ MATTHEW DUFFEE.” The case was tried on the pleas of non assumpsit, payment and set off.

ASSUMPSIT by the defendants in error, against the plaintiff in error. Pleas, non assumpsit, payment and set-off, statute of limitations, and statute of non claim; upon all of which issue was taken. At the fall term, 1839, being the trial term of the cause, this entry appears: “ Norris, Stodder & Co. v. Josiah T. Evans, administrator.

Writ of error to the Circuit Court of Fayette County. ACTION of assumpsit on a promissory note. In the transcript of the record, is found the following memorandum of pleas: “ Want of consideration. Failure of consideration. Fraud.” “Pleas by leave of the court at the spring term, 1830. (This was the trial term.) Non assumpsit. Payment. Setoff. Want of consideration. Failure of consideration.

THE defendants in error declared against the plaintiff in the circuit court of Dallas, in assumpsit, for work and labor done, for goods, wares, and merchandise, sold and delivered, for money lent and advanced, and paid, laid out, and expended, for money had and received, and on an account stated. The case was tried on issues to the pleas of non assumpsit, accord and satisfaction, set-off, and payment.

ASSUMPSIT by the plaintiff in error, against the defendant in error and judgment for the defendant.

Writ of error to the County Court of Tuscaloosa county. THE writ issued at the suit of Sandford & Cleveland for the use of John Hi Ezell. A declaration according with the writ was died and pleaded to.

THE defendant in error, recovered a judgment in the county court of Lawrence, against the plaintiff', Be Graffenreid, who prosecuted a writ of error to the circuit court of that county; and executed a bond, with the co-plaintiffs as his sureties. In the circuit court, the judgment was affirmed on certificate against the plaintiffs.

ASSUMPSIT by the defendant in error, against the plaintiff in error, on the indorsement of two promissory notes, made and indorsed at Augusta, in the State of Georgia, and negotiable and payable, at the Branch Bank atEatonton, in that State The declaration is in the usual form against an indorser of a promissory note, negotiable by the law merchant; and avers a presentment for payment at the bank where the note was payable, on the last day of grace, a refusal to pay, and…

Writ of error to the Circuit Court of Bibb County. MOTION to enter satisfaction of a judgment obtained by Clements against Crawford, as the second indorser of a bill of exchange for two thousand five hundred dollars. The facts of the case are stated in the judgment entry, and are as follows: The judgment against Crawford was takera to the supreme court by writ of error; Hines being the security on the writ of error bond.

THIS case comes here by writ of error, from the County Court of Tuscaloosa. Held: occupied, possessed and enjoyed, and being so indebted, he, the said defendant afterwards, to wit: on the same day and year aforesaid, promised to pay to the said plaintiff the said sum of money, when he, the said defendant should be thereunto afterwards requested.'5 The second count states the use and occupation to have been by the…

TPIIS action was commenced by motion, by the defendant in error, against the plaintiff in error, as endorser of a promissory note. The defendant pleaded non esl factum, which was verified by affidavit. Upon the trial of the cause, the plaintiff below read the note, on which the action is founded, in evidence, (to which the defendant made no objection,) and proved a protest of the note at maturity, demand, &c., and rested the cause. The defendant offered no evidence.

Writ of error to the Circuit Court of Talladega County. ACTION of tresp. quee.fre. to try title, as well as to recover damages, for entering on a tract of land. The defendant first demurred to the declaration, and his demurrer being overruled, he then pleaded not guilty. In the progress of the trial, several bills of exceptions were taken by the defendant to the evidence of the plaintiff’s title, which was derived under a sheriff’s sale.

THE record in this case discloses a notice addressed by the defendants in error, through their attorney, to James M. Bondurant, late sheriff of Marengo, and eight others as securities in his official bond. The notice describes an execution issued from the circuit court of Marengo, on a judgment obtained by the defendants against John McRae, for twenty-three hundred and thirty-seven and ninety-four one hundredths dollars.

THIS was an action of assumpsit in the court below brought by the plaintiff in error, as endorsee against the defendant in error, as the drawer of a bill of exchange. The declaration' is in the usual form, to which the defendant below pleaded. 1. JSton assumpsit. 2. Failure of consideration both, in short, by consent, and 3.

Writ of error to the Circuit Court of Wilcox County. THIS cause had its origin in the following order, made by the judge of the county court of Wilcox county: “ Order, by the judge of the county court, in vacation, April 11th, 1840. “ Complaint having been made to the judge of the county court, that Jonathan M. Hill, sheriff of Wilcox county, has been absent for the space of four months and upwards; and the court having had the said Jonathan M. Hill called to come into…

THIS was a procedingby notice under the statute, commenced by the defendant against the plaintiff in error, in the county court of Mobile. An issue being made up and submitted to the jury, the plaintiff below to maintain the same, offered in evidence a promissory note of the following tenor: “$5,000. Mobile, February 24th, 1837.

(Signed) S. R. MARIOTT, For B. MARIOTT. is the warranty of B. M., the principal. Error, to the Circuit Court of Greene County. ASSUMPSIT on a promissory note, by the defendant in error, against the plaintiffs in error. Pleas: non assumpsit, fraud and deceit, in the sale of the slave, which was the consideration of the note and payment.

Writ of error to the Circuit Court of Wilcox County ¡ White sued Hill before a justice of the peace, and, after judgment, the latter appealed to the circuit court where the judgment was affirmed, and rendered against Hill and also against Proctor, his security in the appeal bond. The summons was issued on the 3Qth May, returnable, the 6th July.

TPIE records submitted to us in these cases contain the entry of a judgment by confession in each, and are in all respects precisely similar, except as to their respective sums, and the name of plaintiff.

<p>Writ of error to the Circuit Court of Cherokee County.</p> <p>THE facts of the case sufficiently appear in the opinion of the court.</p>

Writ of error to the Circuit Court of Autauga County. AN issue was made, (under the statute) to determine the right to certain property levied on as the goods of one Elias Over-street, at the suit of Thomas Stone, for the use of Benjamin Underwood, and claimed by William T. Stone. The claimant offered one Newton as a witness.

THE defendant in error declared against the plaintiff’s in the county court of Mobile, for Work and labour done, for goods, wares and merchandise sold and delivered, for money lent and advanced, paid, laid out and expended, for money had and received, and on an account slated. The record informs us that the case was tried on an issue of fact, and that a verdict was thereupon rendered, but it no where appears what the pleas were.

<p>Error to the Circuit Court of Pickens County.</p>

Writ of Error to the County Court of Washington County. ACTION of assumpsit. The cause of action, indorsed on the writ, is stated to be a promissory note, payable to P. T. Harris or order; but no assignment of the note or any other matter is set out, to show any title to the note, in the plaintiff.

THIS was a proceeding in the Orphans’ court of Tuscaloosa. The first entry found in the transcript, was made on the 22d July, 1839, and is as follows: “ This day, Herbert P. Douthitt, administrator of the estate of James Douthitt, deceased, came into court, and presented his accounts and vouchers against said estate, for allowance; which were stated and examined by the court.

This was-a-bill-in chancery-filed by Jonathan Emanuelj to foreclose-a-mortgage on certain-lands described in the bill, executeffby the plaintiff^in error to him, and one Bloodgood.

Writ of error to the Circuit Court of Perry County. ACTION of assumpsit for the use and occupation of land. Pleas — -non assumpsit, payment and set-off; verdict and judgment for the plaintiff. At the trial a bill of exceptions was taken by the defendant, which stales, “ that a witness was introduced by the plaintiff who said the land was rented from one A. J. Cady by the defendant, for the year 1837, under a written contract.

This was a summary proceeding by molion in the County Court of Madison, to recover of the plaintiff in error, as a tax collector of that county, for a failure to collect and pay over the county taxes for the year eighteen hundred and thirty-six. The court rendered a judgment against the plaintiff for the amount of the taxes unaccounted for, with fifteen per cent, damages and interest.

SUIT on a promissory note, commenced by attachment, by the plaintiff in error. Plea: that Charles Blackman, who bad signed the name of the defendant to the note sued on, had no authority for that purpose. The jury found the issue for the defendant, and judgment was rendered accordingly.

Writ of error to the Circuit Court of Shelby County. Hughes interposed a claim to certain slaves and horses, levied on as the property of one Bell, at the suit of Rhea, Conner & Co.; and gave the bond required by the first section of the act of 1828, At the trial of the claim, the jury found the property subject to the plaintiff’s execution, and awarded fifteen per centum damages, on the amount of the execution, because the claim was interposed for delay.

THE defendant was indicted in the Circuit Court of Montgomery, for carrying concealed about bis person, a certain species of fire arms, called a Pistol, contrary to the form of the statute, &c. To which he pleaded not guilty.

THE action was assumpsit on two promissory notes, for two hundred dollars each, made by the defendant in error, to one Obadiah Cooper, and by him assigned to the plaintiff in error. On the plea of non assumpsit, the defendant had judgment.

Writ of error to the Circuit Court of Macon County. ACTION of debt on a penal bond, conditioned that Adams should faithfully perform the duties required of him, by an act of the Legislature, passed 9th January, 1836, in the assessing and collecting of taxes for Macon county, during the year 1833, agreeable to the provisions of the laws then in force. Plea; That he did assess, collect, and pay over the taxes. Verdict and judgment for the plaintiff.

THE defendant in error, as the administrator of Jesse W. Norwood, deceased, declared against the plaintiff in the Circuit Court of Wilcox, on a promissory note or due bill. The case was fried on an issue upon the pleas of non assumpsit, set-off and payment. On the trial, a bill of exceptions was taken by the plaintiff in error, to the ruling of the presiding judge.

Error lothe Circuit Court of Montgomery. THE defendant in error brought this action to try titles to a lol of land in the town of Wetumpka, and obtained judgment.

Writ of error to lite Circuit Court of Wilcox County. JUDGMENT was rendered against Mason and Daniel, as securities of one Hill, sheriff of Wilcox county, on the motion of Brazier, for failing to .pay over money collected by the sheriff on an execution issued at Brazier’s suit, against Thomas E. Ellis, J. M. Hill (the sheriff,) II. C. Fountain, and William C. Garrison.

THE plaintiff brought an action of assumpsit against the defendant in error in the county court of Greene, and declared against him as the indorser of a bill of exchange, dated the 1st of August, 1836, and payable five months after date.

ASSUMPSIT by plaintiff in error against defendants in error. Pleas : non assumpsit, payment, set-off, failure of consideration, fraud and deceit. Issue in short by consent.

Writ of error to the Court of Chancery, for the fifth District o-f the Northern Division.

THE prisoner being indicted in the circuit court of Dallas, for the murder of Richard Hillburn, vvas tried on the plea of “ not guilty,” and convicted by the verdict of a jury.

THIS was an action of ejectment brought by the defendants in error, against the plaintiff in error, to recover possession of a lot in the city of Mobile. The plaintiffs below obtained judgment from which the defendant below prosecutes this writ of error.

THE facts of this case are substantially the same, as the preceding case of In'nerarity v. The heirs of Mims. A great many important questions were presented by the bill of exceptions, which were not considered in this court, as the case turned upon the same point, — the statute of limitations. It is therefore, not necessary to make any remarks, further than to refer to the opinion of the court in which the facts, so far as they are necessary, are’set forth.

Writ of error to the Circuit Court of Coosa County. THIS was a proceeding against the sheriff of Talladega county, on a suggestion that by the use of proper diligence, he could have made the money on an execution, in favor of the plaintiff against one Johns, which the sheriff had returned “ no property.” An issue was made between the parties and a verdict returned for the defendant, on which judgment was entered.

THIS was a proceeding by motion against the plaintiffs as the sureties of Jonathan M. Hill, sheriff of Wilcox, for a failure to return within the time prescribed by law, a writ of execution theretofore placed in the hands of their principal for collection, at the suit of the defendant in error, against Lewis Hobbs. The record does not show the service of notice on the sheriff' or his sureties, but in the record are found the following pleas: First — The execution is returned.

THIS is an information in the nature of a quo zoarranio, at the suit of the State, on the relation of the Attorney General, for the purpose of trying the respondent’s right to the office of judge of the tenth circuit of this State.

Writ of error to the Circuit Court of Mobile County. THIS vvas an action of ejectment brought by the plaintiffs in error, for the recovery of the possession of certain real estate, situate in the city of Mobile. On tlie trial, two bills of exceptions were taken to the ruling of the presiding judgp. The first bill embodies all the evidence of title offered, both by the plaintiffs and the defendant.