Volume 1 — Minor's Alabama Reports (1820–1826)

tíAR.RO W brought an action of Assurtipif against Barlow, in the Superior Court of Mobile County. Declaration enti-tied “ Mississippi Territory of the United States’ Mobile County, ss,” sets out an Indebitatus Assumpsit, by defendant to plaintiff, at the City of Mezo Orleans, omitting “ viz. at the County of Mobile,” Issues on the pleas of Non-Assumpsit, and Statute of limitations. Verdict and Judgment for plaintiff.

MIGUEL ESLAVA declared in Ind. Asst, for money had and received, against Lewis Judson, in the Superior Court of Mobile County. — General issue — Verdict and Judgment for plaintiff. On which Judson brought his Writ of error. The points in the assignments of error and BiU of exceptions, appear in the opinion of the Court.

DEBT in Superior court of Washington county. Declaration after its title proceeds, “ James C. Gamble complains of John F. Sossamon for that “ whereas the said John F. Sossa-mon on,” <fec. setting out the date and amount of the note, &c. ™ the usual form.

ASSUMPSIT in the Circuit Court of Mobile county by Gif-ford v. Ward, on a promissory note of Butler to defendant, endorsed by him .to Edgar, and by Edgar to plaintiff. General issue — On the trial plaintiff failing to prove non-payment.and notice to defendant, he moved the Court for a non-suit. Motion over-ruled; .to which defendant excepts, &c. and assigns this matter here as error.

ON the 11th daybf May, 1811, a writ issued in the name of .James H. Campbell plaintiff, vs. Wm. B. Jones defendant, returnable to the Superior Court of Mobile county. At Oc-toberterm, 1811, Acre, as administrator of Campbell, declared in assumpsit against Jones, making profert of his letters of administration. General issue. The record then sets out as •of October term 1816. “The jury find for the SI 53 53.

MESSRS. Crawford and Hitchcock, for appellee, moved dismiss the appeal on the ground that no sum was named in the penal part of the Appeal Bond. They relied on the 16th section of the Act of 1819, “ to regulate the proceedings of the Courts of Law and Equity.” (Laws Ala. p. 167.) cited 1 Ch. PI. 75. 2 Wash. 164 — 2 Doug. 514 — 1 Term Reports, 339.

IN debt by appellees as. appellant, on the trial of the issue in the Court below, on the plea of payment, he offered as a set-off, a note of plaintiffs, not payable, but assigned to him. He introduced no evidence of the time when assignment was made. The Court rejected the note as evidence of set-off, to which he excepted, and appealed to this Court.

moved for a Judgment vs. Flinn, as a delinquent tax collector, and relied on the Act of 1819, p. 58, Sect. 2. For the defendant, it was contended that this Court has no original jurisdiction.

STERLING CATO brought his action of trespass vi et armis, in the Superior Court of Washington county vs. John McGrew and another for killing his slave. Cato died pending ^6' acti°n> and if was revived in the name of his executors1, Verdict of Guilty against McGrew, and of Not Guilty as to his co-defendant. • Judgment against McGrew, on which he brought his Writ of error.

<p>The Supreme Court will not take ' notice of any other than the Errors .assigned*</p> <p>2d. Omissio’tt of Similitor not Error.</p> <p>3d. Objections to a Juror to be available must be tabón before he is sworn*</p>

<p>An agent may sue in his own name, on an express contract with him as such.</p>

IN the transcript of the Record, the entry of verdict and judgment was as follows : “ We the Jury find for the plaintiff according to specialty, “ with six per cent, interest and costs. It is therefore considered by the Court, that the said James Donnally reco- “ ver of the said Thomas Malone, according to specialty, “ with six per cent, interest and costs.” • ’• The other matters in the Record, material to the decision, appear in the opinion given by the Court.

<p>Writ of Error will not lie oii order dissolving Injunction.</p>

IN this case, and several others of considerable amount, judgments had been rendered by default in the Superior Court of Madison County. The original Writs were returned, “ Executed by B. Brandon, X). S.” Writs' of Er- or were taken to this Court. It was assigned as Error, ;hat “ The Writ does not appear to have been served by ‘ the Sheriff, and the judgment was by default.” cited 4 Bac. Ab. Sheriff. H. 1 Salk. 96. 6 Coke, 17. . 1 Hay. wood, 181.

Appeal. APPELLANT f-ied out original attachment against ap-pellee.

IN the Supreme Court of Washington county, the defend, ants in Error declared in debt against Henry, describing the note as made “in said county,”for the payment of $161 15, on the 25th day of December then next, or on Demand, in merchandize, and assigned as breach the failure to pay the money—saying nothing of a demand of, or failure to pay in merchandize.

<p>Order requiring' security for costs, (he. grounds of which do not appear in the Record,nor does there appear a~ ny application to the Court below to dismiss; failing to dismiss is not Error.</p>

<p>1. The Court will permit amendment of Sheriff’s return after demurrer, &c.</p> <p>2. On Dec. in asumpsit, on promissory note, with the common money counts, &c. judgment should not be rendered without the intervention of a Jury or entry of noL pros, on the common counts.-</p>

<p>A" party cannot take advantage of *an Error in his own favour.</p>

THE plaintiff in Error confessed a judgment in the Circuit Court in favour of defendant, and afterwards prosecuted his writ of Error. No declaration, or proceedings prior to de■fendant’s appearance and confession of judgment, appeared in the Record. A writ was necessary to give jurisdiction to the Gircuit Court; without it, the proceedings were Coram non Judici. Our Statute of 1811 (Laws Alaba. 463, sect. 12,) places the case out of all-doubt.

<p>THE plaintiff in Error moved for a certiorari, but did not from the Record or otherwise shew the diminution.</p>

Appeal. JAMES MULLINS declared in covenant ágainst Charles Cabiness, that by deed of said parties, dated 28th day of Marth-1817, plaintiff agreed to live with defendant in the capacity of an overseer for the term of 12 months (“ meaning for the year 1817”) to manage’ defendant’s business to the best of his skill, and to furnish one horse, &c. for which services the said defendant bound himself to pay plaintiff $212 on the first day of January 1818 — averred that “ in “all…

THE Planter’s and Merchant’s bank of Huntsville recovered a judgment on motion in the Superior Court oí Madison County, against Logwood and others, on a note which had been discounted by the Bank'..

BY the endorsement on the writ, the Note appeared to have been made by Miller and other payers. The writ was against Miller alone, the declaration described the note as made by Miller only, taking no notice of the others. Plea withdrawn and judgment by nil dicit. The above-mentioned matter in the declaration was assigned as Error.

THIS was an appeal from the judgment of the Circuit, Court of Dallas County, against Rose, for keeping and exhi-Siting a Fai’o Bank. Held: or charge the offence in the language and meaning of the law —That the 3d count being quashed, the whole is thereby vitiated — That the Indictment in 2d count charges two distinct offences. cited Turner’s Digest, 240.

SULLIVAN and Co. brought an action of Debt against Cain in the Court below.

THE writ of capias was tested in the name of Walter ^osi’ Clerk of the Superior Court of Montgomery County,but was signed “AlwinA. MiWorter, D. S. S. C. M. C.” The Record shewed no appearance, of defendant in the Court below. Judgment was rendered against him by default. In this Court he assigned as Error, that it does not appear that the writ was signed by the clerk of the Court, from which it purports to have issued.

<p>°enr^™Ue0nf testate «to clear ^and fer” a certain orphans’^c’omt has no power, un-order ofdecree (¡mt the adrar, make title,</p>

<p>1. To sustain aset fa? on "forfeit the re'!?? nizTnce must^appear to and° rehTrned^as directecTby .the Statute.</p> <p>2. A set fa. the proper pro-ingS the penalty on a forfeited recognizance.</p>

IN August 1805, Edward Lewis filed his bill in Chancery, against Figures Lewis, in the District Court of Washington, •-charging that they' had been partners in a trading adventure, -and praying for an account, &c. and for general relief. Figures Lewis answered and filed his cross-bill. The Cause was transferred to the Superior Court of Baldwin County, and a decree made in favour of complainant. Figures Lewis •died.

BROWN declared' against Cabiness on a special parol oontract, for the sale of the whole of plaintiff’s crop of tobacco at 6t cents a pound, to be delivered at Brown’s house, and averred that he delivered 8103 pounds, and was then: and there ready, and offered to deliver the residue of his cr0p) amounting to 5000 lbs. more, which defendant neg~ lected and refused to receive.

JOHN PHLEMING was tried in the Circuit Court of Blount County, and found guilty of murder. He moved for a new trial, on the ground that the verdict was contrary to evidence. The motion was overruled, the evidence spreádon the Record, Judgment'of death, rendered against llim> and tlie P°ints arising on the Motion referred to this Court as novel and difficult.

<p>lt Debt lies on a writing for payment of a certain sum at a certain day,11 which may be discharged in Cotton.”</p> <p>2. Appearance entered on the docket by cn¿ of several defendants, by his attorney—the minutes shew that the defendants came by their attorney and withdrew their plea. This is a good appearance, and judgment as to a]/.</p>

<p>No plea, and verdict as on issue— Error.</p>

<p>Mandamus will not lie on behalf of one claiming; the office of J udge of a CountyCourl, when another holds -the commission, and is in the exercise of its -duties.</p> <p>The two houses oflhe Legislature, after making an-election, may, be-bafore separating, arrest it, and' make another election.</p>

<p>1, On motion v, sheriff for failing to return execution, parol evidence admissible to shew failure.</p> <p>% Indorsement not responsive to mandate no return.</p> <p>3, On such motion sheriff cannot object to execution as irregular.</p>

<p>1, In covenant it is not necessary to set out in the declaration matter of defeazance’* for benefit of plaintiff.</p> <p>2, Covenant lies agreement,con-taming penalty non-performance.</p>

<p>1st. It is a matter ofdiseretion, and not assignable as Error, to allow, or deny a motion, to withdraw one, and substitute another plea in abatement.</p> <p>2nd. When a Corporation sues according to the course of the common law, it is not necessary that the warrant of attorney should appear in the Record.</p> <p>3rd. A party not having the books of the Corporation in his power, may, without notice to produce,. &c. prove its transactions by other evidence,</p>

<p>In trespass vi et armis for unlawfully entering plaintiff's house searching foranoney stolen, plain-provT mju?y his reputation,</p>

The Court refused to quash the proceedings had before the Justice. 2d. The Court permitted an amendment to the statement of the cause of action after demurrer sustained, and without stating what amendment permitted ; neither does it appear that any amendment was made. 3d. Judgment final was rendered for want of plea, after judgment for defendant onuhis demurrer, and when no leave had been given him to plead. 4th. There was no issue between the parties.as required by law.

<p>1, Writ of Error barred by Slat, lim. dismissed on motion* 2» The Act of 1820 does notapply to judgments rendered before its passage.</p>

WESTBROOK brought an action of Assumpsit againss Magoffin in Clarke Circuit Court.

IN trespass for an assault and battery, Goyne the defendant> plead not guilty: 2d. Son assault demesne. 3d. That he in defence of his father. Issues taken on all the P^eas- The entry of the verdict and judgment was: “ We “ the Jury find the defendant guilty, and assess the plaintiff’s “ damages to eighty-one dollars, with costs of suit.

<p>In assumpsit or mand, plea of payment not admit the full mount of demand.</p>

<p>1. Appeal will not lie to Supreme Court in a criminal case.</p> <p>2. The County Court, as established by the Act of June, 1821, is the proper tribunal for the trial of a slave for a capital offence.</p>

<p>A paper not sealed} &c. as a bill of Exceptions, is not to be so considered, though the Judge certifies that the facts therein set forth are true,</p>

THE Writ was executed on Baker only. The declaration was against all three, charging them as partners on their writing obligatory sealed with their seals.

<p>In a case on an unliquidated demand, originating before a Justice, Court should not render final judgment.by default.</p>

THE Plaintiff sued out an original attachment against the ■defendant, charging that he resides out of the State, so that, &c. The affidavit recites “ that Russel Stebbins, one of the “ firm of Peters and Stebbins, which firm is composed of James W. Peters and the said Russel Stebbins, who are both residents of the State of Alabama, being duly sworn, “ deposeth and saith, that Ebenezer J. Bower is justly indebt- “ ed to the said firm,” &c. (stating the amount), “ and that he…

<p>A Note ddted ‘4th 'December, 1820, payable 25th December neatf, not due until 25th December, 1821.</p>

<p>1. Money collected by an execution issued, or under a judgment entered irregularly, may be recovered back by action of assump-sit. *</p> <p>2d. The Attorney for a party deposed that he filed a Note among the papers in a a cause, that he-had since searched for and could' not find it, and that when he saw it last it was in possession of H. T. — evidence of its contents not admissible..</p> <p>3. To sustain a-judgment, and where diminution appears from the transcript, a cer-tiorari will be awarded, after argument on Errors assigned.</p>

CASE on a contract as expressed in a Bill of lading, for two hogsheads of sugar delivered to Channing at Hew Orleans, on board the schooner Experience, whereof he was master ; which sugar he promised to carry safely to and deliver to Caskaden at St. Stephens, the dangers of the seas only excepted, &c.—breach, that he neglected and refused to deliver, &c.—Plea, That the injury, if any there was, to said two hogsheads of sugar accrued in consequence of tempestuous weather and…

<p>After nol. píos, on a count, it cannot be referred to, to supply-statements of time, place, &c» ■in the other counts».</p>

JOHN Taylor declared in assumpsit against George Sea-ton, for money had and received, goods, merchandize, and lands sold, money lent, and paid and expended, and on an account stated. Plea, non assumpsit and issue. The Circuit Court, after the case was put to the Jury and the evidence for the plaintiff closed, on motion of defendant, ordered that the plaintiff be nonsuited.

<p>Assumpsit on open account against two. Writ executed on one only. Judgment cannot be (aben against him alone until after alias and piuries against the other'</p>

John Clibk sen. sued out a writ of capias to- the Circuit Court of Tuskaloosa county, in debt against John Click jr. and Luther Morgan, “ surviving partners of the late firm of “ John Click and Co.” Service of the writ was acknowledged as follows: “ I acknowledge the service of this writ “ this 1st March 1822, John Click, of the firm of Morgan and Smith.” The declaration was against John Click jr. and Ijuther Morgan, “ surviving partners of the late firm of John Click and…

LUTHER MORGAN Sled his bill in Chancery in the Circuit Court of Tuskaloosa County, against David Scott and John Click, defendants, stating that in 1816 he and Samuel Smith (since deceased) established Click in mercantile business, to be conducted by him at Tuskaloosa under the firm of John Click and Co.; that by the articles of copartnership (which were referred to as an exhibit) Morgan was to furnish the goods, Click was not to purchase any, contract any debts on the credit…

<p>Plea and demureer to the same amount, the demurer may be disregarded.</p>

<p>1. Judgment of an inferior Court will notbe reversed because the verdict is for a less sum than the Court has jurisdiction of, unless it appear that motion was there made for nonsuit Under the Statute. 2d. If the judgment be for more than the verdict, it must be reversed and rendered here.</p>

<p>After verdict on plea to the merits, advantage cannot be taken of variance between Writ and Declaration,</p>

ASSUMPSIT by Ragland against Brahan and Atwood, as indorsers of a promissory Note, general issue and verdict for the plaintiff.

<p>It is not necessary that the Record should shew was calculated by the Clerk.</p>

JEREMIAH AUSTILL, administrator of David Files, de-dared in debt against Silas Dinsmore, on a note under seal, dated 20th day of January 1816, for $2357TW> payable to C. Stump one day after date, and assigned to his intestate, The damages were laid at one hundred dollars. There was no proferí of the note, or of the letters of administration. Dinsmore plead nil debit, on which issue was joined.

<p>On appeal from i'ng containin plaintiff's demand more than 20 final judgment maybe rendered by defaulty.</p>

<p>1. “This day came the parties by their Attor-nies, and the defendant says that he cannot gainsay the plaintiff right of action for the sum of ..—Debt, “ with ——per cent, interest thereon from—— —— until paid,” is a confession of judgment operating as a release of Errors.</p> <p>2. Judgment may be confessed by Attorney.</p>

ASSUMPSIT by Malone against Flant and Sossamon on a promissory note,, and judgment final by default; bn w'hich they sued out a writ of Error, and assign as Error — That by the indorsement of the writ the note appears to have been payable at the Tombeckbu Back; and the declaration does' not aver that it was then presented for payment.

IN an action for. slanderous words charging the crime against nature, Harwood recovered a verdict and judgment against Coburn in the Circuit Court of Monroe County. Coburn sued out a writ of Error, and here assigns as Error— That the words are not in themselves actionable, and they are not laid with an averment of special damages.

CHILDRESS and Hickman declared indebt in the Circuit Court of Madison County against Flournoy, on a promissory note for $75. He filed a general demurrer. A judgment as by default was entered against him for #95 debt, and $9-nnn damages and the costs—on which he brought Error to this Court. The material assignments of Errors appeal’ in the

A WRIT of Fi. Fa. issued from the Circuit Court of Baldwin County, on the 9th day of January, 1822, in favour of Edwin Lewis against the goods and chattels which were of Figures Lewis, and remaining in the hands of Robert Lewis to be administered, was levied by the sheriff of Mobile County on five slaves, died, Monday and her child, Mary and Sam, and 80 Head of cattle.

AT the last term, the plaintiff in Error obtained an order for a certiorari to bring up the citation. The certiorari was non returned with a citation issued long since the last term, The defendant now moved to quash the writ of Error.

THE appellee brought his writ of forcible detainer, and' there .was judgment against him before the. Justice of the Peace. He appealed to the Circuit Court of Baldwin County. Judgment was,there rendered for him, and McDonald appealed to this Court.

<p>A suit discontinued, unless it appear 'from tbe Record to have been continued by the Court, or by operation of the Law,</p>

JOHNSON and Connally brought an action of Trover against Peters' in the Superior Court of Mobile County. By the indorsement bn the writ, they stated that their action was to recover damages to the amount of $407TyV, the value of 362. cedar logs. In the writ and declaration the damages were laid at $800. In the declaration it is alleged that the logs came to the possession of Peters by finding or otherwise. Plea, not guilty, and issue thereon.

<p>2, Plea in abatement that the action was brought before Debt due is sufficiently verified by the in-dorsement of Writ.</p> <p>2, -It is Error to render judgment by nil dicit without disposing of such plea.</p>

<p>1, Writ of Error or appeal will not lie from an order dissolving an In* junction.</p> <p>2, The rule of Court requires an assignment of Errors in cases in Chancery as well at common law.</p>

<p>1. Omission of in dorsement of cause of action omn the writ is error, unless cured by act.</p> <p>2, The bearer of a sealed note payable to T. or bearer cannot Debt on it.</p>

IN the Circuit Court of Washington County, Henry Bright declared in Debt against James M. Tindal, on a writing obligatory, “ sealed with his seal,” &c. delivered, and payable to plaintiff and “ one Elias Coolidge, since deceas- “ ed, by the names of Messrs. Coolidge and Bright.” The writing obligatory was set out on oyer as follows : “ Dolls. 3947-fjAj-. St. Stephens, 2éth Nov. 1818. “ Nine months after date we promise jointly and several- “ ly to pay Messrs.

INDEBITATUS assumpsit by Meeker against Childress, for medical services rendered to his slave—general issue— Verdict entered : “ We the jury find the defendant?’ Judgment thereon for defendant in the usual form. A bill of exceptions taken on the trial, states That Childress, residing at Tuskaloosa, hired the slave for a year to Edward Smith, residing at St. Stephens, who called in the plaintiff, a prac-tising physician, to attend the slave.

IN the Circuit Court of Madison County, Phillips declared in assumpsit against Malone, oh a promissory note for the payment of 16780 pounds of good merchantable seed cotton,' by the i‘5th day of April, 1822.

ORTON brought an action of Debt in the Circuit Court of Lauderdale County against Craig and Dancy, administrators of James Dancy, on a bond of their intestate.

<p>Judgement Confessed Writ of Error Afterwards Taken, Appellate Court With Damages.</p>

IN the Circuit Court of Lauderdale County, Rapier and Simpson declared in Debt against Caleb Hawkins, on a bond for $689 69j-.

THOMAS LIMERICK, on the 15th day of March 1822, sued out a capias ad resp. against Isaac Butler to the Cir-«suit Court of Lauderdale County, “ of a plea that he render “ unto him one thousand and eighty dollars, which to him he “ owes, and from him he unjustly detains to his damage five “hundred dollars.” The declaration was on a note under seal, dated 27th day of November, 1820, forthe payment of $1000, 12 months after date, with interest from the date until the day. of…

<p>Writ of Error sued out before final judgment dismissed.</p>

<p>musibeof ¿rK)M musí be un or</p>

<p>¿n assumpsit, plaintiff has a verdict for less than $60, and makes affidavit that more than fifty dollars is due, but that from (he absence of material witnesses he was unable (o prove the amount justly due. A nonsuit cannot be ordered.</p>

<p>1st, Declaration on a promissory Note payable ora a contingency, avers that the contingency hap* pened on-—» -, good af* ter verdict.</p> <p>2d, In action ora a promissory Note it is not necessary to aves or prove the con* «deration.</p>

<p>A petition for cer* tiorari to bring up the proceedings on a Habeas Corpus before a Judge at Chambers, (if acted on by the Supreme Court in any event), will not lie, unless the petition be verified.</p>

EDWARD KING declared against Nathan Whiling “ of plea that he render unto him f426TW> which to him he “ owes, and from him unjustly detains.” The declaration then proceeds in the usual form of assumpsit, on a bill single of Abraham Philips to Whiting for that sum,-assigned to King, and at the conclusion states an indebitatus assumpsit for the specific sum.

IN the- Circuit Court of St. Clair County, Samuel G. Gordon declared against John Hood, “ for this, that whereas “ ^ sa^ defendant on the-day, &c. at, &c. with “ force and arms, one road waggon, &c. forcibly took out of « the possession of said plaintiff, &c. And also for that the smct defendant with iorceand arms, on the same day and « year aforesaid, at-, &c. carried away a certain road “ waggon, &c. the property of said Samuel,” &c. The defendant plead not guilty, and a…

<p>1st, Executed by R. B., D. S. for J. Y., Sheriff, is a sufficient return of the execution of the Writ.</p> <p>2d, Omission of profert can be taken advantage of by special demurrer only.</p> <p>3<f, If judgment be for correct amount, it is immaterial what part of it is called Debt, and what .damage</p>

<p>Judgment by da-feíaratíonf &- ror not cured by wards films</p>

Foster brought an action of Debt in the Circuit Court of Dallas County against Gayle, on a promissory Note for $100. At the return term of the Writ, the defendant in proper person confessed judgment for $100|. No declaration was filed. The Circuit Court entered judgment .$100 Debt and $2 Damages. Gayle sued out a Writ of Error, and assigned as Errors — 1st,- That thei’e is no declara--¿ion. 2d, Judgment is for a larger amount than it should have been rendered for. .

OB ADI AH HAND brought an action of Debt against gnas Dinsmore, in the Circuit Court of Washington, on a bill for $>1063yyV> dated 25th June, 1817, payable 1st March, 1819, and if not then paid, to bear interest from the date.' Dinsmore filed a plea on which issue was joined, and afterwards at the trial term, October, 1821, by his attorney withdrew his plea, and saying nothing further in bar, the Circuit Court rendered judgment against him for the Debt and $276t\’t Damages…

J0HM G- CREAGH, surviving executor of John Mitchell, and S. B. Shields executor of P. F. Bayard, who was 00 execut01' with Creagh of said Mitchell, declared in debt in the Circuit Court of Marengo County, against Stacy B. Waters, on his bill single, payable to Creagh and Bayard executors of Mitchell. Judgment final by default. Waters prosecuted a writ of Error to this Court; the assignment of Error on which the case was decided appears in the

<p>1st, Some of ¿he pleas do not, but others do, answet the whole declaration. Plaintiff cannot take judgment by nil elicit.</p> <p>2d, The original papers, instead of sworn copies, from a Justice the Peace may be given in evidence.</p> <p>3d, Part of the Debt being attached in the hands of the defendant, he shall be protected against a second recovery as to so much, while the proceedings, though erroneous, remain unre*</p> <p>4th, The holderof a Note may erase credits entered on it by mistake; and whether they have been so entered must be determined by the Jury and'not by Court. The Court cannot charge as to mat* ter&of fact*.</p>

<p>1st, On a certio-Fris a of Forcible Detain-“ond’anTsecun (y ¡s matter of legal</p> <p>2d, The circuitCourt may orfer a new bond to be</p> <p>3d, On aa wrst or Forcible Entry ^Si must ’lhe shew that the par^as“^factuaf possession.</p>

ON motion of the Counsel for Harris the writ of Error in this case (from Baldwin Circuit Court) was-dismissed, because no citation appeared to have issued. He afterwards produced a certificate of the Clerk, shewing that a judgment had been rendered in favour of Harris against Kennedy : that Kennedy had obtained a writ of Error and superseded the judgment ; and he now moves for an affirmance of the judgment as described in the certificate.

<p>1, Writ of Error issued by Cleric after expiration of .his term of office, quashed.</p> <p>2, Ten per cent, damages to be adjudged in all cases on judgment affirmed on writ of Error or Appeal taken since the Act of 1820.</p>

<p>1, Not a good objection to a deposition that it is in’ the hand-writing of the attorney for the party offering it in evidence.</p> <p>2, Release of interest of a witness docs not le-' galise his testimony given before the release. 8, In action vs. husband and wife, service of Writ on husband sufficient.</p>

<p>1, Informal plea of plea, country!"fnd no replication, there</p> <p>2, Plaintiff diesdies pending action: ¡hew'reíivaí'.</p> <p>3, Defendant, by Jj^viMraires* prior discontinnance by operation of !atv.</p>

the Circuit Court of Monroe, Lewis Burnell brought an action of slander against James II. Perdue.

ACRE brought an action of detinue against Gaines in the Superior Court of Washington County, for a land certificate, and recovered a verdict and judgment. By the of Exceptions it appears that in 1799, Narcissis Brontin appointed Gaines his agent to sell the land for which the certificate issued : that it issued to Brontin in the year. 1805.

THIS was a writ of Error to the Circuit Court of Wash-■inglon, on a judgment on motion at April term, 1822, in fa-vour of the State against William Crawford, President of the Tombeckbce Bank, for “ one thousand dollars, being the “ amount of the penalty incurred for failing to pay into the “ treasury the taxes accruing from said Bank for the year “ 1820.” The transcript of the Record sets out that Wil-Ham Crawford, Esq. President of th'e Tombeckbee Bank, on the 7th day of…

AT May term, 1822, of the Circuit Court of Mobile County, “ Eldridge S. Greening, Esq. solicitor of the first “ judicial Circuit, moves the Court for judgment against “ Lewis Judson, President of the Mobile Bank, for two thou- “ sand dollars, which he has incurred by failing to pay into “ Treasury the taxes accruing from said Bank in the “ year 1821.

AT a special term of the County Court of Dallas County^ on the second Monday in June, 1823, the Sheriff of Montgomery County returned the following notice : “ Comptroller’s office, Cahawba, Alabama. “ To James Armstrong, Minor W. Pinkston, and Joseph-Fitzpatrick, Esqrs.” “ You are hereby notified that I shall by the Attorney “ General move for judgment against you at a special session “ of the County Court of Dallas County, to be held on the' “ second Monday in June next,…

IN the Circuit Court of Lauderdale County, Major Har-rolson declared in case against Gabriel Bumpass. The first, count set out that plaintiff had contracted to sell to defendant and William Berry (then trading in partnership) cotton to the amount of $1000, one half to be paid on delivery ; for the other half, defendant and Berry to give their Note on time.

<p>1st, In Debt against one of several obligors, it 'is ‘íiot ñécessary to aver that the 'others failed to pay.</p> <p>2, Declaration demands interest at 30 per cent, per annum; but the obligation described ia 'for no specific rate. Interest, at the rate fixed by Statute, must be adjudged.</p>

<p>cited, 1 Bac. Abr. 640. 2 John. •Rep. 272 — 387. 5 Id. 74. 7 Id. 249.</p>

IN assumpsit by Hartón against Scales, administrator of ^att> in the County Court of Maddison County, the first count in the declaration sets out, that Walt, having in possession the receipt of W. Saunders for a Note of Thomas B. Smith and John Leaky for $500, payable to Wait by his wi’itten endorsement on the receipt, transferred the same, and his interest in the subject thereof, to the plaintiff,- for value by him received from the plaintiff; and then represented to him,…

IN the County Court of Madison, William Tiffany and Samuel Wyman, declared as partners, trading under the firm of Tiffany, Wyman and Co. in Debt against Brice M. Gar-ncr, on a promissory Note, describing it as made at Fayette-viile, to wit, in the County of Madison aforesaid. Garner craved oyer of the Mole, and it was set out in the Record as follows .* “ Fayetteville, March 10th, 189.0.

<p>It is Error to render judgment against an administrator, &c. de bonis propms.</p>

<p>1, That the petition and summons are defective in substance, in an assignment too general to be noticed.</p> <p>% Defendant demurred. The Record shews that he withdrew his plea. Tfie demurrer was withdrawn.</p>

JOHN D. CARRIEL and John Martin brought an actiore of Debt in the Circuit Court of Franklin, against Ephraim Fugua and Thomas Hewitt,, on their Bill single, dated 4tb 6ay December, 1818, for the payment of $470, twelve months after date, “ to bear interest from the date if not punctually paid.” The writ was returned, and declaration filed at February term, 1820.

<p>In proceeding against a Sheriff and securities by 'motion, all the facts and circumstances required by the Statute for the exercise of jurisdiction in this summary mode must appear in the ‘Re? cord,</p>

ASSUMPSIT in the Circuit Court of Lauderdale County, by Baggs, Cochran and Co. against Andrews and Harrison. The first count on a bill of Exchange drawn by defendants on James Jackson, John Coffee and others, by the name of the Cypress Land Company, in favour of plaintiffs, stating the presentment, and that Drawees refused to pay, notice, áse. The second count stated matter of excuse for not giving notice, that drawees had no funds of drawers, áse.

RAPIER, as administrator of Mays, brought an action of Debt in the Circuit Court of Lauderdale County, against Holland and Bruce, on their Bill single, payable to him as administrator. Defendants pleaded, first, payment to plaintiff : to which there was a replication and issue.

GROVE arid SMITH brought an action of Debt in the Circuit Court of Lauderdale County against Spain, on his promissory Note for one hundred and fifty-three dollars “ in good current money of the State of Tennessee? equal in value to said sum of $ 153. Spain failing to plead, the Circuit Court rendered judgment by nil dicit against him for #153 and #36 80 cents damages.

DEBT in the Circuit Court of Dallas County by Parks and Burke against Greening■ on a Bill single. Plea in abatement — that the Writ was executed on the defendant while returning ft'om a battalion muster, to which he had been for the purpose of perfoi’ming militia duty. The Writ did not require bail; and the Sheriff returned that it was executed by serving the defendant with a copy.

<p>3, Writjm til's name of two partners, declaration by one as surviv- or is sufficient shewing of the death of the other.</p> <p>2, Declaration in assumpsit vs. S. B. describes a promissory note with tiie proper hand of S. B. thereto subscribed ; a note subscribed S. B. executrix of W. B. hy her agent F. H. G. may be given in evidence.</p> <p>3, Verdictand judgment for more than the principal and interest due on a promissory note, Appellate Court cannot correctit.</p> <p>4, On general issue in assumpsit ** We the Jury find for the plaintiff, and assess his damages at ‡ — —•” is a sufficient entry of the verdict.</p>

• DEBT by Laughlin against Gibson in the Circuit Court; of Lauderdale County.

<p>1, One of several parties to a judgment may sue out a writ of Error in the name of all, and his bond with security is a supersedeas.</p> <p>2, The citation is in the name only of some of several plaintiffs in Error. The writ of Error will not be dismissed for want of citation, i but if necessary a Sci. Fa. will be awarded.</p>

<p>Writ in Erroe on appeal wil not lie where a final judgment the record.</p>

W RIT of Error to Mobile Circuit Court—declaration •begins as follows : “ James D. Siiburn complains of Rich- “ ard Tankersley in custody, and for that whereas the said Richard on,” &c.—and sets out an indebitatus assumpsit for three hundred dollars for so much money paid by plaintiff to defendant by mistake in settlement of accounts ; in which settlement defendant charged plaintiff said $300 for rent of a house, to which rent the defendant was not entitled, setting out a…

IN Dallas Circuit Court, Lee declared in Debt against Adkins in the usual form on a writing obligatory, of which the following is a copy as endorsed on the Writ: “ $ 150. Six months after date I. will pay John Baird or “ order one hundred and fifty dollars for value received of him this 15th>of Nonember, 1820. “ ALLEN ADKINS.

<p>'Declaration st&t- ; ing an absolute 'contract not supported by evi- ‘ (fence shewing a contract in the ’alternative.</p>

<p>1, In attachment vs. a non-resident, the affidavit should state that the defendant actually resides out of the State, , so that the ordinary process o.f law camiot be served on him the defendant.” '3, Motion to quash ooog not cure defects m attachment, , ’</p>

IN the Circuit Court of Perry County, Micajah C. Rogers declared in Debt against Philip Taylor, on a bill single for $58 l‘2f. Taylor plead—1st, That in an action in Bibb Circuit Court, brought by Rogers against him on the same ■writing obligatory, judgment was rendered that he should recover against Taylor his costs by him about his defence in that behalf expended, which judgment yet remains in 'full force ; and that the parties in this and the former suit are the same and…

THE Recordsets out a notice, dated December 28th, 1821, from the Comptroller to Henry Wheat and his securities, of a motion to be made in the Circuit Court of Dallas County, on the 4th Monday in February next, against them for a certain amount due to the State from Wheat as Tax Collector of Mobile County for the year 1820, which was returned endorsed by the Sheriff thus : “ Received, Janu- ary 9th, 1822, and executed by giving a copy to each of the within-named persons.”…

IN Limestone Circuit Court defendants declared against plaintiffs in Error on their bond for $3070 89.

<p>In action for malicious prosecution,.averment-that defendant ahandonedthe-charge, and the prosecution is wholly ended, Is good after verdict.</p>

IN this case Turner had recovered a judgment against Gayle before a Justice of the Peace for about $48, due on open account; and on Gayle’s petition the case was brought by certiorari into the County Court of Monroe. The County Court adjudged that the judgment of the Justice be affirmed; and thereupon Gayle prosecuted a writ of Error to this Court.

<p>15 per'cent, da mages to be al lowed by Circuí Court on affirm ing judgment of •County Court. ‘ t :</p>

IN Washington Circuit Court, Francis Boykin and Sarah Bassett, administrators de bonis non 'of William B. Birney, declared in debt against Winny Caller, Executrix of James Caller, on a bill single of her testator, dated 6th day of March, 1815, payable to Thomas Bassett, administrator of William B. Birney, deceased.

<p>In a writ of Error. by the putative bastard" and his^ecurRy, oil the order of the quWng him To" give bona and not the mother of the County Court, and not the child* should bo made defendant,</p>

<p>The construction of the Act of February, 1818, as to contracts for interest.</p> <p>1. In a bond or note to pay a certain sum at a future day ¡with interest from the date, at 6 per cent, a month; if not punctually paid, the contract for interest from the date is a penalty. Only interest from maturity at 8 per cent, per annum is recoverable.—By five Judges, the other Judge dissenting.</p> <p>2. To carry interest at a rate exceeding 8 per cent, per annum, the ccfl. tract, must be in writing, signed by the party tobe charged, and express that it is for the loan of money, &c. and such interest is recoverable only for the stipulated time of forbearance.—Result of the opinions of four Judges, two dissenting.</p> <p>THESE, and several other cases of the same description, were actions of debt or assumpsit on bonds or notes of plaintiffs to defendants in Error, of dates betvyeen the 13th of February, and 17th of December, 1819—Judgments by default, nil (licit, or on demurrer, had been rendered by the Courts below, for the principal and interest as expressed in the several notes, &c. The cases were all argued at the same time, the Counsel for the several parties being heard. The Reporter, for the reasons stated in the commencement of this volume, is unable to give more than an imperfect sketch Í of the argument. But, as the Cases have excited much , attention, and have been deemed important in the jurispru-, dence of the State, he has thought it advisable to give such ; a sketch as he has the means of furnishing,</p> <p>It will be unnecessary to state the several assignments of Errors. They brought distinctly into view, from the Records, the principles which were settled by the decision. One of the members of the Court had appeared in the Circuit Courts as counsel for the plaintiffs in Error in some of the Cases, and for the defendants in some others. The Counsel on both sides expressed an earnest wish that all the Judgeshould sit: and the Judge thus situated, attended, and gave his opinion on the principles generally involved; but did riot participate in the judgments in those cases in which he had appeared as Counsel in the Courts below.</p> <p>These judgments wetfc on default, nil dicit, or demurrer, for the principal and interest thereon, at 2j, 5, and in some cases, 10 per cent, a month. noteSj ¿5¿c, are of the following general descriptions</p> <p>' I, To pay the principal at a future-day, and if not punc-dually paid, to pay the premium or interest as at the rate expressed; from the date, as in the Cases of Henry and Whinstonvs. Thompson, and MbWhortervs. Standifer.</p> <p>% To pay the principal at a future day, with interest at the rate expressed, from the date, till paid — as m -Fronts vs. Manning.</p> <p>3d. To pay the principal at a future day, with a distinct agreement to pay the interest, not stating the time from which, or till'which,, it was to. run — as in Derrick vs. Sneadrs executors..</p> <p>4th. To pay the principal at a future day, with interest from the maturity of the note — as in Gray vs. Pope.</p> <p>Interest on money was not allowed at common law. 3 Inst: 151. Ord on . Usury, 6, 7,31. 2d Hume’s Hist. Eng. 456i I'Aitter. State Papers, 305, 6. In England,,interest became recoverable by Statute 37 Hen. 8. C. 9. Here too, we are to look to our Statute Book for the right to recover interest, and at‘what rates at different times. These contracts • depend' solely on our Statute of February, 1818. (L. k. 443.),</p> <p>See. 1. — That any rate of interest or premium, for the loan or use of money, wares, merchandize, or other, commodity, fairly and bona fide stipulated and agreed upon by the parties to such contract, expressed in writing, and signed by the party to be charged therewith, shall be legal and recoverable ; and no bona fide contract shall be vacated, or in any manner impaired, by reason of any premium or rate of interest so stipulated and expressed..</p> <p>Nee. 2.: — That on all contracts, written or verbal, ascertaining the sum due, where no specific premium or rate of interest is expressed, interest shall be taken,recovered,.and allowed at the rate of eight per cent, per annum, from and. after said sum is due and payáble.'</p> <p>The 3d, Section repeals all Acts contravening this..</p> <p>This Statute creates the right to compact for any rate of interest, and restricts and qualifies this right. It is not every contract, for any rate of interest or premium which shall be legal and. recoverable. If the interest is to exceed'8 per cent; per annum, the first section of the Statute requires that the rate should be fairly and bona fide stipulated and agreed upon by the parties to such contract —that the contract be expressed in writing and signed by. the party to be charged therewith — that the interest stipulated' be for the loan of money, or for the use of wares, merchandize, or other commodity. Such is .my reading, and on the fair principles of construction, as well as from the context, this will, I think, appear to be the reading. The whole contract, and not .merely the rate Of interest, must be expressed in writing, and signed by the/ party to be charged. If.the words “ expressed in writing” refer only to the rate of interest, the sentence is unmeaning; For how is the rate of interest to be signed by the party ? The term “ use,” from the context and the nature of the subject, refers to wares, merchandize, &c., and the term “ loan” 'to money. What was the object and policy of the; Statute? To increase the active capital of the-country by affording new inducements for the loan Of'money. Surely*. not to let loose the griping and merciless creditor, to impose whatever terms he would on the unfortunate debtor who might be completely within his power. To bring the contract within the operation of the 1st Section it must be ex-, pressed in the manner, and be for such subject or consideration as this section has defined. (6 Bac. .Abr. '378. 380. 391. 5 John. 327.) This is an affirmative Statute. It authorizes a new description of contracts, and the thing to be done shall not be done in any other manner, than as directed. 6 Bac. Abr. 377. '395. 3 Burrow, 1890. By the Statute of'Frauds, the agreements therein mentioned are required, to be in writing and signed by the party to be charged. By the first Section Of this Statute, as 1 have endeavoured, to shew, it is required that the contract shall be expressed in writing ahd signedby the party to be charged. It has been uniformly held that the consideration is part of the .agreement, and must be expressed in writing. Bob. on Frauds, 202, and cases there cited. 3 John. 211. 214. So here the consideration is part of the contract, and must be expressed in writing, and appear to be of the description required. The Statute requires that the interest, if exceeding 8 per cent, per annum, should be fairly and bona fide stipulated and agreed upon by the párties. Under the restrictions imposed, it appears to give a wide scope as to the power of the parties to bind themselves for any rate of interest. To bring the Contract'then within the operation of the 1st Section, it should be . shewn, (like all the otherrequisites prescribed) by proper averments in the Record, that the rate of interest wasfairly and bona fide stipulated and agreed.upoh. In these Records none of the matters appear, unless it be the rate of interest or premium, expressed in the notes. _ And as to these, their very enormity furnishes intrinsic evidence that they were merely intended as a penalty. From the esta.blished principles of law, they can only operate,as such, In ^he cage óf jEckford vs. Sale, the debt contracted on the 1st of March, 1819, was WOO. The interest adjudged at September Term, 1820, was *187.50. In Turner and Bradford v's, Manning-, the debt contracted in June, 1819, was $3000 ; interest adjudged at September Term, 1821, was $3261 22. In Gfey and Lewis Vs. Ewing and Clemens, a debt of $4,200 was contracted on the 11th day of June, 1819, the noté to be paid ninety days after daté; and if not punctually paid when due, to dráw 10 per cent, a month until paid. Interest on this debt, according to the principle on which the judgments were rendered in the Court below, would how amount to $24,570. If ho restraints whatever on contracts for interest had ever béen imposed by any Statute, could any tribunal, with the feelings and principles of thinking common to all mankind, have adjudged such <£ premium for the use of money ? Could hire or compensation for the usé of any other commodity, so far beyond all proportion to its value, be adjudged on any contract, no matter in what terms it ihay be expressed ? Whatever words may be used to bind the party to pay hire, at such rate, the com-inon sense of mankind must lead to the conclusion that it was intended but as a penalty. For no man of common sense .could make such a contract, under the expectation of Ipaying hire for any length of time, at such rate. 2 Com, Con. 538. 546. 1 Poth. 207, 9,11.</p> <p>But we may be told, that it is for a Court of Equity, and hot for a Court of CohimOh Law, to relieve against a penalty. Our Statute of 1811, L. A. 464, perhaps settles this question. If the high rate of interest, as expressed in the bonds, j &c. is but a penalty, the law. requires the judgment to be ; entered but for the principal and interest due ; and this interest, by the 2d Section of the Act of 1818, is 8 per cent, per annum.</p> <p>Without the aid of a Statute, Courts of Common Law have long since disregarded the penalty, and adjudged according to the direct intent of the contracting parties.</p> <p>As for resorting to Equity — from the very nature of the judgments which the defendants in Error seek to enforce, it would seem to be hopeless. They do equity ! What is to be hoped for by appealing to the conscience of tjhe usurer, who with Hinty heart and iron hand watches over his helpless debtor, Calculating when this rapidly accruing interest will amount to all which he can pay, and is then ready to strip a helpless family of the last bed on which disease or infancy, may find repose, and the last morsel of bread which may sustain life ?</p> <p>cited 2 Vernon, 209, 306. Orri on Usury, p. 49. 12 Mass. Rep. 365. As to the power of Courts of Common Law to cut down the penalty, a review of the cases will shew conclusively that they exercise cbn-current jurisdiction with Courts of Chancery. Reeve’s Dom. Rel. 300. 418, 10. 2 Cowper, 495, citing the wire-drawer’s case. 1 Maddon, 27, 28. 6 Mod. 101. Roberts on Frauds, 105, 118. So in the case of lost bonds, &c. 3d Term. Rep. 151.</p> <p>As to the difference between promissory notes and sealed instruments, Laws Ala. 464 — 70.—The last-mentioned Statute, passed in 1812, requires that in all actions founded on any writing, ascertaining the plaintiff’s demand, if judgment by default, nihil dicit, non sum infirmatus, or on demurrer, be entered, the Court shall enter judgment for the debt and interest thereon ; and this interest, as we have shewn, should have been computed, under the 2d Section of the Act of 1818, at 8 per cent, per annum.</p> <p>The case of Dinsmore vs. Hand, (a) decided here at the last term, is in poiht for us. It has been my intention to have the decision in that case published. It would have been hailed by a suffering and injured community as the harbinger of relief.</p> <p>I presume that these cases, like all others before this Court, must be determined by the law of the country, and not by giving hard names to the transactions and the parties; or by the influence of feelings which may be awakened by the contemplation of the effects of the contracts on the plaintiffs in Error. Courts of Justice give construction and effect to contracts, and respond to the questions of law arising out of the Record. The power of making contracts for the parties, or of relieving them from the mischiefs which may result from enforcing their contracts according to their unequivocal terms, has not been assigned to the judicial tribunals of this, or, so" far as I am informed, of any other country.</p> <p>I deny that the right to contract for interest originated. with the Statute of Hen. 8, or with any other Statute. If not restrained by law, the owner of money is at liberty to contract for its use at any rate on which he and the borrower may agree, just as the owner of lands or chattels may hire them at any rate which may be agreed on. From a remote period in the history of commerce down to the present day, wherever money has been the instrument of exchange, interest appears to have been a lawful subject of contract. In the Roman empire, in Hindostán, and in the several countries of modem Europe, the rates Varied ac* cording -to the commercial state -of the country-in other words, according to the rates of profit from the use of mo* ney — or (üke the price of any other commodity,) according to the proportion between the demand and the supply. In Holland, where the rate does not appear to have been restrained by law, it has been three per cent, per annum. In New-York, where" the law fixes the highest rate at seven, it has been sometimes at 5 per cent, per annum. 2 Bl. Com. 254. 5 Gib. Rom. Emp. 477. Ord -on Usury, 3 — 5. Addison's Rep. 477.</p> <p>If the enquiry were now as to 'the fairness of these contracts instead of a mere question as to their construction, these high rates are not more calculated tó excite surprise and exclamation than were -the prices of land, of slaves, of cotton, and other property, or the profits in some instances for the use of money, for very short periods, about the time when the Statute of 1818 was enacted, or when these notes were given.</p> <p>The right to contract for interest does not then Originate from any Statute, but has been restrained in its exercise by the negative words of various Statutes. If the plain terms of the Statute of 1818 require the aid of rules of construction, we must enquire what was the law as to this matter at the time of its enactment ? What restraints on contracts were -intended to be removed by it ? and What is the established, legal meaning of the terms used to express the Legislative will? 6 Bac. 383, &c. 12 Mod. 540. 2 Salk. 518.</p> <p>Before the enactment of this Statute, a Contract For a higher rate of interest than 6 per cent, "pet annum Was illegal. By this Statute, any rate of interest or premium for the loan or use of money, wares, &c. fairly and liona fide stipulated and agreed Upon by the parties to such contract, expressed in Writing, and signed, &c. shall be legal and recoverable. Even if interest could not accrue, Or be Contracted for, by the common law, the contracts now under consideration are in so many words made legal and recoverable by this- Statute. The principles stated in 6 Bac. 383, cited by Mr. Hüíchiñson, ate in our favour. For what is the common and known import of the terms used in this Statute ? The Engtish Statutes and the Statutes of the several States, in restraint of interest or Usury, employ terms, in describing the subject of the contract, not more-comprehénsive than those here used. The term loan of money, in these restraining Statutes, has always been held to include the use of money retained in the hands of the debtor. -Our Statute of 1818 mentions both the Joan and use of money. The interest is here the subject of controversy. The notes signed by the parties charged, express the rate of interest stipulated and agreed upon. The contracts appear on the Record to have been fairly and bona fide made. It is not so averred.; but why it should have been, in declaring on these moré than on any other contracts, I am at a loss to perceive.' The Statute declares that any rate of interest so expressed shall be legal and recoverable. And yet this Court are now called onto declare that it was illegally recovered, and that what the parties have, by their written contract, deliberately agreed to pay as interest, is not interest, .but penalty ! The notes shew what the parties intended- when they were given. The judgments by default and nil.dicit, shew- that when they were rendered the plaintiffs in Error still believed that they were bound to pay the interest which they had agreed to pay; and the defendants in Error then believed, and yet believe, that the law and their contract entitle them to receive it.</p> <p>The case cited from 5 John. 327 is on an illegal- contract for the sale of Lottery tickets,, and so far can have no application here ; and the same remark will apply as to the cases of corrupt loans as cited.</p> <p>As to the. question of penalty, where-the notes are payable at a future day,, with interest from the date if not pune-tually paid, I do not controvert- the principle as settled in Dinsmore vs. Hand. The contract there was made before the Act of 1818, and-could not be affected by it. Nor-do. I deny the correctness of the definition of penalty. It is in oúr favour. Were, these contracts to pay the rates of interest as expressed, and made with the Statute of 1818 distinctly in the view of the parties, intended as a forfeiture annexed for the better enforcing of the payment of the principal ? To general apprehension* and according to the intention of the parties, the agreements to pay interest expressed-are as clear and unequivocal as the agreements to. pay the principal,. Is there any room for doubt? Thi& agreement and intention of the parties appears as clearly in the notes to pay interest from the date, if not punctually paid, as in the others. And if this be a rate of interest ox-premium fairly and bona fide stipulated and agreed upon, and expressed, as required by the Statute, the Statute has, made it “ legal and recoverable.” Mr. Hitchcock also cited from Pothea 202, as contrasted with the matter in 204 and 206 of the same book ; and commented on the cases cited from 2 Com. on Cont. 542, &c. He also cited 4 John. 436.. Cowper, 112. And to shew that interest must be recover'ed according to the law, at the time and place of the con-, tract, cited 2 Burrow, 1098.</p> <p>If these judgments can. be sustained, it must be. by fox-ce of a naked Statutory provision. If not a Statute on the subject had ever been enacted, and contracts for intex-est had been as unrestrained as contracts for the hire of any article of property, could interest be recovered at the rates expressed here ? Could any Coui't of Justice enforce a contract to pay For the hire of any commodity at a rate which in á short time would amount to double or quadruple its full value. But it is contended that these contracts must be literally enforced by operation of the direct and affirmative words of the Statute. The Statute authorizes such contracts for the loan of money. Does it extend to cases of sales on credit, where the price is to be paid at matui'ity, with interest from the time of the contract, or interest from the date, if not punctually paid ? If so, there was no necessity for the Legislature to have interfered, for the parties had but to add the interest to the principal, and express in one sum the amount to be paid at maturity, Yet it will hardly be contended, that on an obligation to pay ¡a thousand dollars in twelve months, and if not punctually paid, to pay sixteen hundred, that the sixteen hundred dollars could be recovered, even according to the technical rules of a Court of Law, and though pot a Statute restraining the rate of interest should operate on the case. But this is in effect the same as an obligation to pay a thousand dollars in twelve months, and if not punctually paid, to pay interest from the date at 5 per cent, q month. As for the notes to pay interest from the date at the rate expressed, until paid — the words, until paid, accords ing to the intention of the parties, refer to the time appointed by the contract for payment.</p> <p>But interest is the creature of Statutoiy enactment. I tvill not detain the Court by an examination of the books on this subject. The authorities cited, as I think, clearly prove this position; and it cannot be shewn, even by tradition, that interest accrued at common law.</p> <p>In acknowledged cases of penalty, the contract and the expectation of the parties may have been as explicit and distinct, and as free from the restraints of any Statute, as these contracts can be. Yet if A. were to contract that he would deliver to B. in twelve months a chattel woi’th $100, or, in case of failure, would pay him $1000, could any Court of Justice give judgment for the penalty? Do not the excessive and ruinous rates of interest here, in principle, outrage the common sense and feelings of mankind as much as the case supposed ? Their reflections and feelings as men must restrain Courts of Justice from adjudging at such ruinous rates. No man of feeling would exact such interest, and no correct member of the profession could enforce its collection-without feeling.</p> <p>gave* further.illustrations of the positions taken by Mr. Hitchcock.</p> <p>As to the question of penalty, Pothier has been cited. He treats of the principle according to the doctrine of the civil law, but 1 do not conceive that his definition of penalty differs from what is considered such at common law. In obligations acknowledged as penal; the obligee may elect to bring his action for damages, for breach of the condition, or for the penalty; and the judgment is rendered for the penalty, to be discharged by payment of the damages, or for the principal and interest due.</p> <p>By our Statute of 1811, on penal bonds for payment of money, the judgment is to be entered for no more than the principal and interest due. How could the obligees, or holders, here elect to sue for what the Counsel for the plaintiffs in Error term the penalty ? Could an action be sustained demanding this interest or penalty, as they term it, as the debt ?</p> <p>From the cases cited in 3 Comyns on Contracts, 524, &c. as well as from principle, it seems clear that wherever the parties have agreed on a certain sum for doing or not doing the act contracted for, this is to be the measure of the recovery, and not such measure as a Jury might arbitrarily adopt. Yet they may have agreed on a sum greatly exceeding or falling short of the value of the injury done by a breach of the contract. In Lowe vs. Peers, (4 Burrow, 225,) the breach of the contract may by possibility have benefited, rather than injured the plaintiff; but it was for the parties by their contract, and not for the tribunal called on to enforce it, to determine on this matter. So in Fletcher vs. Dyche, 2 Term. Hep. 32, it is obvious that the high and progressive weekly sum to Ire paid, might be as much out of proportion to the injury from the delay in performing the work as the interest here to the value of the use of the money -, and yet who doubts the correctness of the conclusion of the Court there, that defendant was bound to pay according to his contract ?</p> <p>As to the case cited by Mr. Kelly from. 12 Mass. 375, it is enough to say, that in Massachusetts there is no such Statute as the one on which we here rely. But it is contends ed that the contracts do not come within the operation of the first Section of the Statute of 1818, unless on their face they show that the consideration was a loan, and unless it be averred in the Record that the interest was fairly and bona fide stipulated and agreed upon. Can the term “ use, in the Statute, by any legal or grammatical construction, bo restricted to “ wares, merchandize, or other commodity f ’ The Section of itself furnishes the answer: “ Any rate of « interest or premium, for the loan or use of money, wares. " merchandize, or other commodity, fairly and bona fide “ stipulated and agreed upon by the parties to such con- “ tract, expressed in writing, and signed by the party to bo “ charged therewith, shall be legal and recoverable ; and no “ bóna fide contract shall be vacated, or in any manner im~ “ paired, by reason of any premium or rate of interest so “ stipulated and expressed.” If the punctuation of the Section can afford any aid, it supports our construction. Do not the terms “ loan ” and “ use ” apply indiscriminate, ly to the subjects of the contract as the case may be ? Would not a loan of wares and merchandize be within the Statute ? And is not a contract for the use of money, permitted by the creditor to remain in the debtor’s hands, equally within it ? If authority were necessary, the cases cited from Ord on Usury prove this.</p> <p>Why should the avérment, that the interest was fairly and bona fide made, be required in declaring on these more than on any other description of contracts ? Jf the contract, as described, appears to have been fair and bona fide, such averment could have had no effect as to the testimony to-be introduced by either party on the trial. But why then, it may be asked, were these expressions introduced into thei Statute ? Obviously in order to qualify the general and strong terms “shall be legal and recoverable.” That there might be no doubt in adjudicating on contracts coming within the operation of this Section, that if not fairly and bona fide made, the same defences and means of relief would bo applicable to them as to all other contracts not so made.</p> <p>As to the argument from the decisions on the construction of the Statute of Frauds, compare that Statute with this, and it can weigh but little. That Statute requires the agree - ment to be in writing — our Statute, so often cited, required that the rate of interest stipulated and agreed upon by the parties to such contract shall be expressed in writing. On any fair principles of construction, can it be concluded that this Section requires that all the matter of the contract by which the minds of the parties were brought to assent to it, weh as the matter which the obligor bound himself to perform, the consideration, as well as the rate of interest,' shaii be expressed in writing ? The context of the Section,' does not, as I conceive, require it. But how stood the old law when this Statute was enacted ? Interest exceeding six per cent, per annum, whether stipulated with writing or without writing, could not be recovered. It was the evident object of the Statute to remove or relax this restraint, and to leave the parties free to contract for any rate of interest, if it was fairly and bona fide stipulated and agreed upon, expressed in writing, and the. contract signed by the party to be charged. If in these notes, interest at the rate of one or two per cent, per annum had been expressed, under the same circumstances as the interest here, I presume that it would hardly be contended that the specific rate of interest had not been expressed as required by the Statute; and that therefore under the 2d Section, interest must be recovered at the rate of eight per cent, per annum.</p> <p>To my view the terms of the Statute, and the Statute, itself, so clearly sustain the construction for which we contend, that argument in aid of that construction is very much like attempting to prove a self-evident proposition. The interest then (as I infer) being fairly and bona fide stipulated •and agreed upon (for it was for the obligors or makei's to ■show by plea that it was not so stipulated) the rate being expressed in writing, and the contract signed by the party to be charged, was made legal by the Statute, and was rightfully recovered in the Courts below.</p> <p>As to the interest from the maturity of the notes till the judgments where parties have contracted for a given and legal rate of interest, the rate fixed by the contract is to govern until judgment rendered. 4 Burrow, 1098. 4 Johnson’s Cases, 27. Mr. Clay made further comments on the cases cited from Salkeld, 519. 2 Comyn on Contracts, 24. 12 Mod. 540, &c. &c.</p> <p>Kelly in conclusion. — I may at least say, that to my mind ■our positions remain unshaken by the arguments on the other side.</p> <p>As to the notes on which, if not punctually paid, interest is to be paid from the date, I might perhaps say that the gentlemen on the other side abandon the contest. If, in the case of Dinsmore vs. Hand, the interest from the date, though at a rate not prohibited by law, be á penalty, so here, admitting it to be at a rate allowed by law, it is equally a penalty.</p> <p>As to our position that the Statute requires not merely that the rate of interest should be expressed in writing, but that the whole contract should be in writing, and not the: iialf of it only, and the support which we attempt to give t0 p from the decisions on the import of the term agree-meni in the Statute of Frauds, I contend that the'word contract, in our Statute, is a fair equivalent for the word agrecment, especially when connected with the word “ such” that precedes it. The words “ such contract,” in our Statute can only be satisfied by a contract having all the attributes required by the preceding part of the Section. It must be a contract for the loan of money — be reduced to writing, and signed by the party to be charged. It must recite the fact of the loan, as the only legal basis for the stipulation of interest; and in addition to all this, it must be fairly and bona fide made. Then, and not till then, will it be “ such contract ” as the Statute allowed to be made ; and the plaintiff must aver and prove that the contract was made fairly and bona fide before he can recover the stipulated interest. If we go back to the intention and views of the Legislature in the enactment of this Statute, if we examine the Statute itself, can there be a doubt but that the idea of a loan of money was throughout, with the framers of the law, the governing principle ? At that time, the opinion prevailed that great profits were to be made by the use of money in this country. To give to men of enterprize facilities in obtaining it, the Legislature authorized any rate of interest for such loan to be agreed for ; but as a safeguard from the mischiefs of the innovation, and the abuses of the privilege, required that the contracts should be expressed in writing and signed by the party to be charged, and should shew that the rate of interest was for a loan, and fairly and bona fide stipulated and agreed upon by the parties. Can it be.supposed, that if contracts, such as those now under consideration, had been .presented to the view of the Legislature as coming within the Statute which they were about, to enact, that any body of men, entrusted by their fellow-citizens with the power of Legislation, could let such widespread ruin loose upon the country. Surely they could not, have authorized, and the Statute has not authorized, the unfeeling creditor, by a little farther forbearance to his debtor, to continue to double the debt in geometrical progression until the enormity must awaken the dullest understanding and feelings to an exclamation at the oppression of the transaction. The Statute then did not authorize contracts for interest at this enormous rate for the forbearance of a debt.</p> <p>But the cases of the second class, as arranged by Mr. ■Hutchinson, have hardly even this claim to come within the pale of the Statute. For the interest accrues from the date, and in all the cases, what consideration is there for the interest after the maturity of the debt ? There is no contract for forbearance, or that the debtor shall have the use of the money after that time. The interest then, unless the contract bo clearly and technically within the terms of the Statute, is judicially to be considered but a penalty. What is a penalty ? This is not to be determined by the form of the security, or by Statutory restraints upon the contract, but by the gross disproportion between the sum agreed to be paid for doing or not doing the act, and the injury thereby to be sustained by the other party.</p> <p>As to the Case Fletcher vs. Dyche, (2d Term R. 32), cited by Mr. Clay, it is a clear case of penalty ; and the principle there decided cannot be law. Will any man contend that if the defendant had agreed to pay the plaintiff £10,000, instead of £10, for every week’s or every day’s delay until the work should have been finished, that this ruinous amount could have been legal and recoverable ? Why is a penalty cut down at law 1 Not only because it exceeds the justice of the case ; but because from the intrinsic nature of the subject, it is the incident, and not the principal matter of the contract. Mortgagees were allowed to oppress for a time, but the attention of the Courts being called to the nature of the contracts, executed them so far as justice required, and held them void as to the residue. Mortgages were engines of oppression in the hands of merciless money-dealers; and if they had met with judicial sanction, would have accumulated the property of the community in the hands of cormorant avarice and reduced the other members of society to beggary. . The notes in question are engines of the same character, and wielded for the same purpose: with this difference, that the Jews were the money-dealers in the beginning of mortgages, and were already odious, and might be turned out of Court without regret; for they were even a subject of regal pillage in most countries. In England, King John put one Jew on his election between his money and his teeth, and drew a tooth a day until he yielded his money. Under such circumstances, the Courts had nothing to fear in fixing a boundary to oppression; but here usury has been made respectable, at least for a time, by the character and standing of the parties engaged in its unholy practice; and the Court that touches a hair of the head of one of these little ones will be denounced by the money-dealers. Allow them to oppress,, and “ Daniels will come to judgment.”</p> <p>But it has been said, .that there must be a wide stretch of judicial power to sustain our positions in this case. My remarks as to the nature and terms of these contracts are a SuffiCient answer to this. If we have shewn no case in print, it is because the injustice and oppression of mankind iave as yet’ *n our or judicial history, presented no contracts corresponding with these in enormity and oppression. If the harmony of society and the rights and happiness of its members, are to be protected by those who administer the laws intended for the equal protection of all, judicial remedies must of necessity keep pace with fraudulent Ingenuity; and if these be the first cases presented for adjudication, in which the merciless hand of wealth and power attempts, under the guise of law, to grind its victim into dust, it is surely time that a new precedent should be made which will put a stop to the work of ruin.</p> <p>If these contracts are not within the Statute, there is no justice to invoke to their aid, and of course they cannot be executed. The Act of 1818 is their warrant, and they must pursue it strictly. If they fail to do so, and a victim should escape, justice could not weep. Indeed, it might be said that “ God had tempered the heart to the shorn lamb.”</p> <p>They have not shewn that the notes were given for money lent, and no other consideration will sustain the stipulated interest. They have not shewn by averment that the contracts were made fairly and bona fide ; and of course they cannot recover, unless those words in the Statute can be spunged out as useless and unmeaning.' The .defendants could defend against a fraud without them, and it must have been for some other purpose that they were inserted. The meaning we assign them is the only useful one that can be given. Put the onus on the shaver — make him aver and prove the fairness of his contract, and it will amount to a safeguard against the boundless extent of his merciless ex-actions. A Jury would then have to pass upon the fairness of his contract, and find it affirmatively, before he could recover more than 8 per cent, for his interest. The competency of the Jury to make such an enquiry is conceded, if the defendant should raise the question by a plea: and it follows that they are just as competent to make it, if the plaintiff should be required to aver and prove it as the foundation of his claim to stipulated interest. The common sense of mankind, in most cases, could be relied on — an advantageous bargain, obtained from a drunken man by artifice, would be denounced as unfair.</p> <p>Juries actually do decide on the descriptive attributes of contracts and of crime in many cases. Every suit arising out of the achievements of a horse jockey furnishes a sample. and attests the capacity of the Jury for such an enquiry. Murder must be committed with malice aforethought; and larceny, feloniously. These attributes are not sworn to by witnesses as existing facts, but are drawn by the Jury as matters of inference from facts established by proof. The fairness of such contracts would depend on the relative situation of the parties. If undue advantage should be taken of the embarrassments of the borrower to extort from his sensibility more than a reasonable compensation for. the loan, the contract would be unfair. The very enormity of these exactions is of itself proof of the unfairness of the contracts, and of the undue advantage taken of necessity. The plaintiffs have not averred their fairness, and of course they cannot recover. Will the Court remand to allow them to amend in that particular ? Surely not; for justice does not require it. The Court will reverse for the Errors apparent, and render judgment for as much as the plaintiffs are entitled to have by the Record as it stands, and no more. They will “ give to Shylock his pound of flesh, but not one drop of human blood.”</p>

<p>Declaration on decree of the Court of Cumberland County, Virginia—plea nul tiel Record—Clerk's certificate: "the cloras office °f the County of is a failure of Record.</p>

<p>On writ on Error on judgment quash execution, the statue of limitations does not run from and tHe to the original not supported’by it-On writ Of Error on judgment on motion to quash</p>

<p>In a written agreement, evidence of declaration made by defendant at time of ex-not admissible</p>

<p>1, Id a declaration in assumpsit, if the written contract is described,shews defendant’s liability, the super se ass’ump-sit is unnecessary. •</p> <p>2, The words payment and set off, signed by defendant’s attorney, do not amount to a plea, and plaintiff may "ireat them as a nullity.</p> <p>3, In assumpsit, where judgment by default and writ of enquiry tobe executed instanter would be proper entry of verdict, as on a plea of not guilty -is not Error.</p>

DEBT in the Circuit Court of Madison County; Wm. Locke, ass., &c. vs. Fleming Jordan, on a bill single originally payable to Seth Norton. There were five pleas, and issues on the first four. The fifth plea, after Oyer prayed and had, was in substance that the writing obligatory was given for the payment of money then and there lost by defendant and won by Horton at gaming and betting.

<p>After suit brought against administrator, the estate is declared insolvent, the action cannot proceed.</p>

<p>Admissions made cause to arbitration, not afterwards suit brought against party making them.</p>

<p>A legate not competent witnessso long as his legacy is subject to 3 n omen. A legatee not competent</p>

THE consideration of the bond was the hire of a slave for a year; two or three months afterwards the slave, by a wound, is disabled from performing any labour; if there be no express agreement to the contrary, the full amount of the hire must be paid.

THIS was an action on the casé fbf slanderous words.. The declaration contained four, counts. In the first, the words charged were, “you, damned rascal, have killed mv brother, and I will kill you.” In the second, “ you havc-murdered my brother,” In the. third, “ he has killed my brother.” And in the fourth, “ he has murdered my brother.” Each count containing the usual matter of inducement, colloquium, innuendo, &c. Plea, not guilty; verdict, and judgment for the plaintiff.

THIS was an action of assumpsit—1st count, on. a promissory note to pay plaintiff or bearer the sum of $315, money borrowed, when defendant should be thereunto af-terwards requested. 2d count, insimul computasseij, concerning divers sums of money due from defendant to plaintiff-general issue.

<p>Several promissory notes may be included in the same count.</p>

IN the Circuit Court of Washington County, James Fos-. ter declared in assumpsit against John Bowie, describing a promissory Note of defendant to him, by which defendant acknowledged himself to be indebted to him in $141 75 j and thereby then and there promised to pay the same to one Thomas Carson.

<p>After notice of assignment of a judgment defendant pays to plaintiff, equity will not protect him from execution for the benefit of the as-signee.</p>

IN the Circuit Court of Jackson County, Sampson Reece was tried on an indictment; the first count of which charged him with having stolen a grey horse, the property of Robert Vann ; the second count, with having stolen another grey horse, the property of Vann, and a bay mare, the property of Elizabeth Pack ; the third count, with having unlawfully, &c. received another grey horse, the property of Vann, and another bay mare, the property of Elizabeth Pack, (which had been…

<p>1, On demurrer to plea, the Appellate Court look back to the plaintiff’s right of action as set out in the Record.</p> <p>2, Chief Justice of County Court orders a party in custody of Sheriff to be discharged 5 the Sheriff not liable as for an escape, though the order be erroneous.</p>

■ SAMUEL BENNETT brought an action of assumpsit against David Hubbard and Marlin Wilson in the Circuit Court of Lawrence County; on the trial the plaintiff gave in evidence a paper signed by the parties, the material parts of which are as follow : “ The said Bennett binds himself to “ furnish the said Firm of Hubbard and Wilson with the sum “ of one thousand dollars, to be appropriated to the pur- “ chase of lands from the United States, and dispose of the , “ same in the…

DEBT in the Circuit Court of Lauderdale County. Wrk of capias returned “ executed this 9th day of March, 1822.

<p>On appeal to the Inferior Court, the judgment is against the principal and his security to the appeal. Writ of Error thereon, in which the security is not joined, must be quashed.</p>

ASSUMPSIT by Wade H. Greening, executor of J. Greening, on a promissory Note. Plea—that the writ was executed on defendant while he was returning from a bat-tallion muster, to which he had been for the purpose of performing militia duty. Plea verified by affidavit—general demurrer to the plea—:demurrer sustained, and resp. oust. awarded.

■SAMUEL G. SMITH brought an action of replevin agamst IVilham Crockett, m the Circuit Court of Dallas County, charging him with having wrongfully taken and detained from the plaintiff eight negro slaves. The defendant demurred ; the- Circuit Court sustained the demurrer ; and on a writ of Error to this Court, Smith assigned this matter as Error.

IN the Circuit Court of Washington County Samuel B. Shields brought an action of trespass against James G. Lyon, on the title to a tract of land claimed by him, and charged to be in possession of defendant. The venue being changed to Clarke County, a verdict and judgment were rendered for the defendant.

<p>Writ of Error not includingall the parties who £ecPor?shouidbe made defendants dismissed.</p>

<p>Writ Error in plaintiffs than were parties to judgment dismissed.</p>

<p>In trespass for cutting timber trees final judgment by default cannot berender- ' ed for the amount of the penalty as fixed by the Statute.</p>

THIS was an appeal from the Circuit Court of Washington County. ’ A fi. fa. at the suit of the appellee against Alexander B. Smoot, was delivered to the Sheriff of Washington County on the third and on the fifth of February, 1823, levied on five slaves. The appellants claimed ti-. tie. A trial of the right of property was had in conformity with the Statute, and a verdict and judgment rendered against the appellants.

THIS was a scire facias at the suit of David White against Wm. B. Allen as the appearance bail for Thomas K. Roberts, The writ of capias and bail bond were dated 1st day of October, 1821, the writ returnable to the Circuit Court of Dallas County on the fourth Monday in February next. The bail bond conditioned for the appearance of Roberts at the next term of the Court above mentioned, on the second Monday in February.

<p>Notice dated 6th of March, 1824, of motion to be made on second Monday after fourth Monday in March next, does not refer to second Monday after 4th in March, 1824.</p>

IN this case the writ of capias was returnable to the Superior Court of Clarke County of the Mississippi Territory, on the 1st Monday of March, 1817. Held: or that the Record and cause were transferred from the Superior to the Circuit Court of Clarke County — the former decisions of this Court and the Acts of Assembly have disposed of these points.

IN thé Circuit Court of Limestone County, Bernard M‘Kiernan declared in assumpsit against Freeman Crenshaw, as endorser of a promissory note of Stump .and Cox, dated 15th of October, 1818, payable to John P. Erwin twelve • months after date, at the Branch Bank of Tennessee at Nashville, endorsed by Erwin to Crenshaw, and by him to the plaintiff; “ and the plaintiff in fact says, that afterwards, to “ wit, on the 18th day of October, 1819, at the Branch Bank, “ &c>, said…

THIS was an action of assumpsit in the Circuit Court ■of Madison County, by John Nance and John R. Lucas, part-tiers, under the firm of John Nance, and Co., for the use of Lucas against Willis Pope and John P. Hickman, late partners under the firm of Pope and Hickman. The declara- « tion contained five counts.

<p>A second transcript being returned on general certiorari, the first or the second must be solely' relied on, • and one cannot be amended by the other; but on application of defendant in Error, a specific certio-rari will be awarded.</p>

THIS was an appeal from a Justice of the Peace to the Circuit Court. The judgment rendered by the Justice does not appear in the Record otherwise than by the recital in the bond for the appeal to the Circuit Court. “ Whereas “ judgment.by default hath, the day of the date hereof, been “ entered against the above-mentioned R. C. McAlpin, for “ $49 33¿, together with,” &c., naming the Justice of the Peace by whom the judgment was entered.

THIS was an action of assumpsit in Washington Circuit Court, by Young Games against Thomas Melone, executor of Lemuel Henry, deceased. General issue — A case was agreed between the parties to the following effect: On the — day of — the testator died seized and possessed of a considerable personal and real estate. By his last will he ‘appointed Sarah Henry his executrix, and Edmund P. Gaines, 'Thomas Melone, and Benjamin S. Smoot, executors.

<p>Certiorari award* ed for a copy of the opinion of the Judge on the trial in the Court below,</p>

<p>In an action on a note payable to two persons, evidence that they were then transacting business in partnership with a third who is yet alive, &cis not admissible.</p>

<p>Debt by administrators of ob-ligee on the joint bond of two; under their joint plea a debt from the intestate to one of the obli-gors may be set off.</p>

<p>A Sheriff appointed by the Governor to fill a vacancy bolds his office only until the next annual election for Representatives to the General Assembly.</p>

THIS was a Scire Facias against Baird, returnable to the Circuit Court of Dallas County, on a bond of Thorington and said Baird, to James and Wm. S. La Tourette, dated 10th day of August, 1821..

A WARRANT was issued by a Justice of the Peace against Gary at the suit- of Bowman, on a note for #35.-Gary offered to prove a set off; the Justice being of opi-njon that his claim was unliquidated anti above his jurisdiction, rejected the testimony, and gave judgment against Gary, from which he appealed to the Circuit Court.

ON the 8th day of May, 1822, an attachment was issued by a Justice of the-Peace of Mobile County, returnable to Mobile Circuit Court, at the suit of Roland Clapp, a resident citizen of this State, against Richard Harris and Nimrod Far? row, oath having been made that they “ reside out of the “ State of Alabama, so that the ordinary process of law can- “ not be served upon them.” The affidavit of the plaintiff in the attachment stated that the defendants “ are justly indebt-…

ALEXANDER SAINT GÜIRONS declared against Dur-rett White, in the Circuit Court of Greene County, for that the defendant with force and arms entered the plaintiff’s close, being section two of township… Held: that an omission to charge on any particular point is not within the reach of a bill of Exceptions. The greater part of these objections, however, have already been answered ; no Error is seen in those that are not, and they also can be readily answered.

<p>In action on a bond in considc-ralion.of rent, lessee cannot ques fian lessor’s title.</p>

<p>1, A promise of Executor, though not in writing', takes the case out of the Statute of limitations.</p> <p>2, Demurrer to replication to plea in bar overruled, the judgment is final, unless defendant pays and obtains leave to plead further.</p> <p>3, Judgment against Executor de bonis propriis is Error.</p>

<p>Heath of Plaintiffs in Error suggested if representatives do not appear and revive. Writ of Error abates at the next term.</p>

THIS was an action of debt by Christian against Scott m Madison County Court, on two bonds for $2000 each, payable to John Evans, and by him assigned to the plaintiff; to which defendant plead failure of consideration and fraud, with leave to give special matter in evidence; on which issues were taken and verdict and judgment rendered for defendant.

DECLARATION in assumpsit by defendants against plaintiff in Error filed in Mobile Circuit Court at November term, 1821. Plea, non assumpsit. Next follows in the Record continued on suggestion of defendant at May term, 1823—November term 1823 continued, there being no court —February special term 1824, “ This day came the parties by their attornies,” &c.; then follows a verdict and judgment for the plaintiffs in the usual form.

ASSUMPSIT in the Circuit Court of Limestone County, Matthew Gray against James W. Dupuy as assignor of a bond whereby Wm. Burns bound himself in the sum of $453 50f to Dupuy, conditioned to pay said sum into the Land Office at Huntsville, according to the terms provided by the Acts of Congress for the disposal of the public lands, &c.: viz. one-third on the 11th of February, 1820; one-third on 11th of February, 1821; and one-third on the Hth of February, 1822.

<p>1, Plaintiffs in Error, after join-der, cannot dismiss their writ.</p> <p>2, In action vs. several on a joint contract, plaintiff may confess the matter plead separately by one in bar as to him, enter nol. pros, as to him, and proceed to judgment vs. .the others.</p>

<p>The Record shews a plea in bar, not noting when died, and afterwards a claim of judg-meat in vacation —Error, to render judgment without disposing of the plea.</p>

^ the Circuit Court of Morgan County, McMahon de~ dared in debt against Crockett on a promissory note; defen-daiit plead nil debit, and another plea, averring generally that he never received any consideration from plaintiff or any other person for the note; on both of which pleas issues were joined.

IN the Circuit Court of Dallas County, Wardlaw declared in case aginst Wren and Glover, that he purchased a negro woman of them, whom on the sale they promised to be sound. Breach, that the slave was not sound, whereby she became of no value to the plaintiff. There, were other counts, of indeb. ass. ins. comp. &c. The defendants separately plead non assumpsit; on which issues were taken.

<p>In action aganst two on a joint contract, the death of one being suggested, the plaintiff may proceed to judgment against the other.</p>

<p>One of two joint ngbfof action is in survivor, and survivor of both cannot join.</p>

IN Dallas Circuit Court, David While and John. B. Norris, as surviving partners of the late firm of Lane and White, ■declared in assumpsit against William B. Allen for goods sold and delivered, &c. On filing the declaration at September term, 1823, Norris came in proper person and disclaimed any interest in the event of the suit.

WRIT of Error to Tushaloosa Circuit Court, The de»' claration charged that the defendant, being the owner of a ferry, ferry boat, &c. at the falls of Cahawba, and a carrier of goods therein for hire, the plaintiff, on the east side of the river, delivered a waggon, two horses, and- divers goods and chattels of his property, to defendant; and defendant received them to be safely and securely carried in the ferry boat across the river.

<p>In action for wrongfully suing out attachment, it is not necessary to prove-raalice.</p>

ASSUMPSIT in Dallas Circuit Court by Torver against Brown and Parsons. The first count sets out that William W. Gary and others, on 16th September, 1820, made and delivered a promissory note to Jonas Brown for twelve hundred dollars, payable six months after date. The assignment by Brown to Jonas Brown and Rock Parsons, partners under the firm of Brown and Parsons. Assignment by them to Wm.

IN the Circuit Court of Lauderdale County, Chapel Sledge made a motion against Joseph N. Baker, Sheriff of that County. Baker appeared and admitted due notice.

IN Dallas Circuit Court, at April term, 1824, John A* Marrs recovered a judgment on motion against John McWhorter, Sheriff of Jefferson County, and John Brown, jr., Dempsey H. Hicks, and Thomas S. Hutchingson, for failing to return a writ of capias ad satisfaciendum, issued from said Court at the suit of Marrs against James L. Baird.

<p>1, Damages left blank in the declaration and judgment by nil dicit, omission cured by reference to the writ. Is made before ¡S></p> <p>2,' The Act of February, 183 S, does not change-the rate of interest on contrae! enactment,</p>

<p>Writ of Error dated day of 1823. and 471h year of American Independence, returnable on the second Monday of June next, shall not be dismissed for want of date.</p>

DEBT in the Circuit Court of Bibb County. John Du-barry against Henry W. Stevens and Sally B. Stevens as Administrators of Robert Sterrett. The declaration charges that the estate of Sterrett had been reported insolvent, and that $1260 62^ had been allowed by the County Court, and ordered and adjudged to be paid by defendants to plaintiff as his proportion of his claim, and that defendants had committed a devastavit.

■ MEAL SMITH sued out a -writ of capias against Eli Mendenhall, returnable to September term, 1820, of Monroe Circuit Court. By the endorsement on the writ, it was stated to be an action on the case .for breach of a verbal contract, whereby the defendant was bound to build two saw-mills, &c. &c. Writ executed 8th September, 1820.

<p>Motion for Juclg*ment on certificate, alleging that transcript has not been filed, transcript appears to have been filed; and case yet pending on a former writ of Error issued without bond and second writ of Error, appears to have been issued on bond ‘given. Motion denied.</p>

IN the Circuit Court of Mobile County, Lewis declared against Rea, for having maliciously and wrongfully sued out an original attachment against him. General issue, and verdict and judgment for the plaintiff. The defendant here assigned as Error—That it is not alleged in the declai’ation that the suit instituted by attachment was at an end before the commencement of this action. cited 2 Gould’s Esp. 120. I Doug. 215. lEsp. R. 80.

<p>In assumpsit vs. H. surviving partner, for goods sold and delivered to the partnership, though the goods were charged on the books of the vendor to the deceased partner separately, evidence is ad* missible to shew that they came to the use and possession of the firm.</p>

cited 6 Cra. 222. 4 Mass. 258. 1 Ch. PI. 231. Ch. Bills, 498. He contended that the amended declaration was a new declaration, and therefore the Jury rendered a verdict on an issue which they had not been sworn to try.

<p>In trespass vs. admissible the shew that the act was done by one o is deputies.</p>

IN the Circuit Court of Montgomery County, Wm. Banks declared in assumpsit against Wm. Peacock, as maker of a promissory note to him, due ninety days after date, and payable and negotiable at the Branch Bank of the State of Tennessee at Nashville, and to bear legal interest from the date until paid.

<p>For plaintiff in Error a certiora-ri will be awarded to shew that after a verdict was returned) it was modified by the Court.</p>

<p>in proceeding by judicial attach* ment, the Record should shew fhat defendant was an inhabitant of the State when original \vril issued.</p>

IN the Circuit Court of Madison County, James B. Walker recovered a judgment on motion against the President, Directors, and Company of the Planters’ and Merchants’ Bank of Huntsville, for the amount three Bank notes of said Bank for $50 each, which he had duly presented for payment, and payment of which had been refused.

<p>To charge the endorser, deamnd accept tor within die maturity of the bill.</p>

IN the Circuit Court of Washington County, Moses, a slave, was indicted for the murder of Saridford McLendon, his master. The indictment did not charge that the slain was a free person. The prisoner was found guilty of manslaughter. His Counsel moved in arrest of judgment, that the indictment and verdict do not bring the offence within the Statute.

IN the Superior Court of Madison County, Hickman declared in debt against Ellis; declaration entitled October term, 1819 ; the defendant filed a plea in abatement, dated as of the same term, that, when the suit was instituted he was and yet is a freeholder and resident of Franklin County in this State. The affidavit annexed to the plea was dated 4th of March, 1820.

AT November term, 1821, of the Circuit Court of Mobile County, (to which the writ was returned executed) Judson and Banks filed their declaration in assumpsit against Joshua Clemens on a promissory note.

<p>1, On quant: mer: for board, food furnished horse, &c. the established tavern rates are not the best evidence, unless it be 1 not be permitted ial circumstances, shewn (hat the plaintiff was a tavern-keeper. 2, A witness, in giving testimony, shoult to examine entries made by plainilff in his book of accounts, unless under spec •is the witness having seen the entries made, &c.</p>

<p>Refusing (o charge the Jury as requested not Error, unless it appear that the points as to which the charge was prayed arose from the evidence before the Jury.</p>

<p>cited 2 Doug. 593.</p>

<p>On certiorari judgment of Justice affirmed, .15 ges not allowable.</p>

A WARRANT on behalf of Solomon Rhodes against James Sneed for $42, due by account, was issued by W. Furris, as a Justice of the County Court of Tuskaloosa Coui\ty, on the 8th day of June, 1821. On the 23d'day of June, 1821, judgment for the plaintiff was rendered by Isaac Patrick, Chief Justice of the County Court of that County, for $42 and costs.

A FI. FA. on behalf of Gantt, against John Stone, was ■levied by the Sheriff of Lawrence County on property, a .part of which was claimed on behalf of John A. Marrs and John Slone, Jr., partners under the firm of John A. Marrs and Co. The affidavit of claim was made by John Stone, Jr. and the bond given by him and Parker Alexander, his security, and the proceedings, were returned to the Circuit Court of Lawrence County for the trial of the right of property.

THIS was an action by Wilson against Rogers, for an assault and false imprisonment. Pleas, not guilty and justification. Yerdict and judgment for plaintiff. On the trial the plaintiff introduced a witness who proved that defendant and ‘ one Davis, acting as Constable, brought him to a blacksmith’s shop, and had handcuffs put on him. His Counsel examined the witness as to the- conversation of defendant while at the shop relative to the orders for putting the irons on.

<p>On appeal from Justice, objection to the return on the warrant cannot be made unless it has been made before the Justice.</p> <p>2, The appellate Court should permit the Constable to amend his return.</p>

In action for penalty for voting without legal qualification, the list of votes taken as required by Statute is the best evidence to shew who voted.

IN Franklin County Court, Thomas and James Kirkman declared in debt against Tidence Lane on a note under seal, payable to Ayres Hudspeth, and assigned to them. The note on oyer was set out as follows: “ On or before the “20th day of November next, for value received, I promise “ to pay Ayres Hudspeth one hundred and twenty-six dol- “ lars and thirty cents, which may be discharged with cot- “ ton at the market price. Witness my hand and seal¿ June “ 1st, 1822.

<p>If a bill of Exceptions refers to a paper, and does not set it out or so describe it as to leave no room for the Clerk by mistake or otherwise to transcribe some other paper into the Record, the Court will not consider such paper as spread on the Record, or award a certi-orari to bring up a copy.</p>

<p>I» Plea and demurrer to same count, demurrer to be treated as a nullity.</p> <p>2, Obligation, to pay $100 nine months after date, on condition that obligee perform certain services, the performance is a condition precedent.</p>

ASSUMPSIT by Horatio Dade against George Buchan-non, Benjamin S. Smoot, and Matthew D. Wilson, charging that as managei’s of the St. Stephens Academy Lottery, they sold and delivered to him a ticket in the lottery, to which a prize of $5000 was drawn ; and that from the time of the sale he was and still is the bearer of the ticket, &c. &c. The Defendants plead 1, General issue. 2, That the alleged assumpsit was made by them merely as agents and managers for the President and…

<p>Bill penal, ble on demand» Carries interest only from demand proved, qr from-date of wit.</p>

ÍN the Circuit Court of Washington County, James? ^amseJ declared in assumpsit against John Johnson, on a promissory note payable to George Steed, and by him assigned to the plaintiff; to which defendant plead, 1st, The general issue, 2d, That George Steed, the payee, made and signed the note jointly with the defendant. Demurrer and joinder to the second plea.

<p>Writ of Error to Jefferson County Cpurt.</p> <p>cited Laws Ala. 853. 8 John. 218. 18 John. 428.</p> <p>cited 2 Bl. XL 842. 5 East. 244. 3 Wilson, 313. . 1 Term R. 141, &c¡</p>

<p>Declaration describes a writing obligatory ; issue on the plea of payment; a writing which is not a specialty caiv not be given in evidence for plaintiff.</p>

SARAH F. CHOTARD filed her bill in the Circuit Court Tuscaloosa County, charging that Henry Willis, her first husband, was entitled to certain lands on Bay on Sara, which were s°ld by the United States ; that, as indemnity for the same, an Act of Congress was passed on the 8th of May, 1820, entitled “ An Act for the relief of the legal representatives of Henry Willis,” authorizing them to enter without payment in any land office in the States of Alabama or Mississippi; and…

IN the Circuit Court of Washington County, at the Spring term, .1824, a motion on behalf of the State was made against the President, Directors, and Co. of the Tombeckbee' Bank, for the penalty of $2000, for having failed to pay into the Treasury the taxon their capital stock for the year 1821. The defendants appeared by Attorney, and claimed the right of a trial by Jury, and moved the Court for the same, but filed no plea.