Volume 1 — Porter's Alabama Reports (1834–1839)

Error from Madison Circuit Court — Before the Hon. John M. Taylor. In this case, John Whitaker had ob'ained a judgment against Patton, administrator of Robinson, on which an execution had issued, and been returned mulla Iona. Whitaker filed a suggestion, under the statute, averring, that a large real estate had descended to the heirs of Robin* son; and a sci. fa. issued thereon to Patton, and to the heirs.

jError from Madison Circuit Court — Before the Hon, John White. This was a case brought 'before a justice of the peace, to recover an amount due on a single bill. Judgment was given' against the defendant, and an appeal taken to the Circuit Court.

Error from Madison Circuit Court — Before the Hon. JoHJV M. Taylor. This was an action of debt, brought in the Circuit Court of Madison county, against Moore, the plaintiff in error, a* surety to an injunction bond. ' The penalty of the bond was twelve thousand dollars.

Error from Lauderdale County Court. This case originated from a motion made in the County Court of Lauderdale county, against a sheriff, for not making the money on an execution of the plaintiffs. The declaration set out, that the sheriff’s return on the execution was, that a levy had been made in pursuance of the same, but that the money was not made for want of time, and suggested, that the sheriff could have made the money by due diligence.

There was a motion made in the Supreme Court to dismiss the writ of error in this case, on the ground that the «lérk of the court below had no authority to issue the writ .of error at the instance of the administrator, the party defendant being dead.

Error from Limestone Circuit Court — Before the Hon. John White. This case came up on errors assigned in the determination of a supersedeas. A judgment had been obtained against Harkins as sheriff, for failing to return an execution. James Clemens had recovered a judgment at March term, 1824, against one David Low, et al, for $476, on which an execution went into the present plaintiff’s hands.

Error from Madison Circuit Court — Before the Hon. Joshua L. Martin. This was an indictment for larceny.

<p>The declarations and acts of a vendor, as to the ownership of property which he has conveyed to another, cannot be given in evidence, to defeat the right of his vendee.</p> <p>A vendor is a competent witness to prove' the fairness of a sale he has made.</p>

<p>Where a review is sought of the matters of a decree in chancery, in the absence of error obviously on the face of the former decree, there must be new and material matter pressing upon it, which has arisen, or been discovered at too late a period to have been made available, by proper diligence on the former hearing, to entitle a party to redress. But where the directions of a former decree have not been complied with, according to a just interpretation of their object and intent; or if a material matter might have been adjusted by the former decree, and was supposed to have been done, but by the artifice or evasion of the party complained of, has been omitted, or defeated — these are proper subjects of review, and chancery will interfere.</p>

<p>A bill of review may be granted either for errors of law apparent in the decree sought to be reviewed, or for the discovery of new matter.</p> <p>As a general rule, no review ought to be granted of a fact .previously in issue, on account of newly discovered evidence ; unless that evidence • be in writing, or on record, and does not consist in swearing alone.</p> <p>While this rule will be applied to the situation occupied by parties, it must appear that they have done every thing which can reasonably be required, to avail themselves of new matter during the pendency of the writ, which they, desire to review. \</p>

<p>Anote or bill mads for the especial accommodation of an individual, to enable him to miso m moy by its discount, at a rate beyond the legal interest, is usurious in tho hands of an innocent purchaser, and he cannot maintain an action on it; being void in its original formation.</p> <p>Tho doelarut'.ois of tho porsou for whoso accommodation the paper is made, not evidence.</p>

Error from, Idmestone County Court. Asa Hodges instituted an action of trespass on the case against William Dickerson, to recover for the use and' occupation of sixty acres of land rented to him. The evidence produced by the plaintiff below, established, according to the admissions of Dickerson, a contract between himself and .one Smith, the agent of Dickerson, for the rent of the land in question.

<p>Where A. sells property to. B. and B. sells to C. and the property is levied on and sold to D. under an execution subsisting against A. in a suit brought by C. to recover from D. — A. is not a competent witness for C. •</p> <p>A levy and sale underran execution by one constable for.another, which levy and sale are recognised and returned by the latter — not void on .tile ground of false return.</p>

<p>On demurrer to a plea, the court will look first to the declaration, and give judgment on its sufficiency before noticing the .defects of the plea. In a declaration against a common carrier for negligence, it is essential to aver that defendant accepted, or undertook to carry the goods.</p>

<p>In slander, the defendant, under plea of justification, will not Be permitted to vary the issue tendered.</p> <p>Where one lias been guilty of uttering slanderous words of another, he will not be allowed in an action against him, to give evidence of his subsequent qualification of the words — thus creating evidence for his defence.</p>

'Error from Lauderdale County Court. Where A. in consideration of work and labor to be performed by B. covenants to convey land to B, aud B. ascertaining A. has no title, abandons the contract before its completion; he cannot in the common count on quant, val. recover for the work actually performed. Trespass on the case for work and labor. The plaintiff brought his action to recover of the defendant, for clearing and grubbing between ten and twenty acres of land.

Error from Dallas Circuit Court — Before the Hon. H. W. Collier. This case was decided on points reserved — and was an indictment for larceny. The defendant was charged in two counts, with the larce - ny of four promissory notes.

Error from Limestone County Court. This was an action before a justice of the peace, from whose judgment an appeal was taken to the County Court. On the trial, the defendant pleaded, that at the time of issuing the summons at the suit of the plaintiff, hé was a resident citizen and freeholder, in the County of Lauderdale.

Error from the Commissioners Court of Limestone County. The bill of exceptions sealed in this cause, relates that Easter and Cox applied on the same day to the Judge and commissioners of Limestone county, foy a license to establish a ferry over Elk river, at a place called Jones’s ferry.

Error ■ from Tuscaloosa Circuit Court — Before the Hon. A. Crenshaw. This casé was founded on a notice issued bythe Attorney General against the plaintiffs in error, preparatory to a motion for j udgment, for the obstruction of a public road by Harriet Rather, the wife of the plaintiff James. The notice was issued in the name of the state, returnable on the 2d Monday of the term, and was continued from time to time, until disposed of.

Error from the Circuit Court of Tuscaloosa County — Before the Hon. A. Crenshaw. Trover for the conversion of seven clocks. The points involved in the decision of this case, came before the court on a bill of exceptions, which sufficiently explains its nature.

Error from Pickens Ciruit Court — Before the Hon. S. L. Perry. Lemuel E. Singleton commenced proceedings in a justice’s court, against Charles Finley, for the unlawful detainer of a. certain parcel of land mentioned in his complaint. Judgment being had against Finley, and a writ of restitution awarded, this case was taken to the Circuit Court of Pickens County, by writ of certiorari.

Error from Tuscaloosa Circuit Court — Before tbe Hon. A. Crenshaw. William R. Colgin, the administrator of Irby, filed his bill in equity to compel John O. Cummins, the surviving partner of Irby & Cummins, to account for the effects of the intestate Irby. The bill, answer, and exhibits, show the following facts. John T. Irby and the defendant, Cummins, associated themselves in trade, as copartners in the year 1824.

Error from, Marengo Circuit Court — Before the' Hon. H. W. Collier. This ease came before the court on a bill of exceptions, which disclosed the following facts. , On the twenty-ninth day of March, 1830, an execution was issued from th'e office of the clerk of the Circuit Court of Greene county, in favor of Benjamin Hart, against the property of James L. Philips.

Error from Greene Circuit Cowr£ — Before the. Hon. H. W. Collier. „ This was a debt on a penal bend.

Error from Greene County Court. Assumpsit for money had and received. In this case, the plaintiff, Herndon, had purchased of one Billings, a note of hand drawn by James and John Trussel, in favor of said Billings.

.Error from Tuscaloosa Circuit Court — Before the Ho». A. Crenshaw. This was an action of debt on a promissory note, payable to one Bobinett, or bearer. There was a general demurred to the declaration, which was overruled. i The defendant then pleaded— 1st. That Owen was not the legal holder of the note. 2d. Nil debet — Payment and off set. On these pleadings there was a verdict for the plaintiff Owen.

Error from Shelby Circuit Court — Before the Hon. A. Crenshaw. Assumpsit to recover the amounl of a note of hand executed by the defendants. It appeared that the note in question, was placed by the plaintiff in the hands of an attorney at law, for collection, who without the knowledge or consent of the plaintiff, paid over the same to Genette, in satisfaction of his (the attorney’s) own debt.

Error from Greene Circuit. Court — Before the Hon. A. Crenshaw. This action was trover for the recovery of two negrdes. In the year 1824, Martin instituted an action of trover against White, for the permanent conversion of sundry negro slaves, among whom was a negro woman slave named Charity. In .that action Martin recovered a judgment against White, fin#5 the full value of the said slaves, which judgment was satisfied In full.

Erroi' from Greene Circuit Court — Before the Hon. A. Crenshaw. This was an action of trover, for the conversion of a slave^ brought against the testator of the plaintiff s in error. Green-lee claimed a recovery in this case, on the ground, that being under duress of imprisonment, threats, menaces, perturbation of mind, and false accusations, he had been induced to execute to Hatter, a bill of sale for a certain negro boy, Daniel — to recover whom this action was commenced.

Error from Greene County Court. On the final settlement of the estate of John May, deceased, in the Orphans’ Ceurt of Greene county, Rebecca May, the defendant in error, had become entitled under an order of distribution, to a certain sum of money, as her distributive share of said estate. At her instance a scire facias issued against the administrators, calling upon them to show cause why she should not have execution for the same.

Error from Tuscaloosa Circuit Court — Before the Hon- A. Crenshaw.

Error from Mobile' Ciruib Court, — Before the Hon. S. L. , Perry. This action was commenced by Thouron & Co. in the court below, to recover the value of a box of laces, which had been deposited with Durand for sale. Durand had effected an insurance of the goods in his store, and the same had been destroyed by fire.

Error from Dallas Circuit Court — Before the Hon. Reuben Saffold. This was an action of assumpsit; to recover the amount of ® promissory note. Among other pleas, the defendant pleaded the statute of limitations. To this plea, the plaintiff filed his replication, alleging that the defendant was for a long time, to wit, one year of tha six years next before the commencement of the suit, absent from the state.

. Error from Mobile Circuit Court — Before the Hon. Show L. Perry. This was an action of assumpsit, to recover the value of certain guns, which had been placed in the store of the defendant in error, to be sold at auction.

Errw from Dallas Girv.il Court, — Before the Hon. Reuben Saffold. In this case, a bill in equity was filed,, to force the performance of ante-nuptial articles between Carson and. his wife. The bill made an exhibit of a copy of the articles, alleged to have been executed, stating that the original was not in the possession or control of the complainant.

Error from Dallas Circuit Court — Before the Hon. Sion L. Perry. This action was assumpsit, to recover the amount of sundry accounts, subsisting in the hands of the plaintiff, against the. defendants’ testator. The defendants, to discharge this debt, had placed in the possession of the plaintiff, certain notes ont one Wiley Saunders, who, the plaintiff alleges, was insolvent.

Error from Mobile Circuit Court? — Before the Hon. Sion ■ L. Perry. , This was an action to recover of O’ Donnell the amount erf a promissory note, indorsed by him to Walker. On the trial in the court below, the plaintiff read in evidence the protest of Thomas Mather, a notary public, stating that notice had been left at the counting house of William R. Hallett, the agent of O’Connell.

Error from Dallas Circuit Court — Before the lion. ' A. Crenshaw. Peter Maher was indicted in the Circuit Court of Dallas county, for an assault with intent to kill. On the trial of the cause, the defendant, by his counsel, moved the court to quash the indictment, on the ground', that the venire facias, on which the jury were summoned, did not issue under the seal of the court, but was merely subscribed by the clerk, in his official character..

Error from Mobile Circuit Court — Before the Hon. Sion L. Perry. In this case, Eslava brought an action of trespass on the case, against Terry, for using certain presses in compressing cotton, in the city of Mobile, in violation of a contract made between the parties. The plaintiff below, had paid the defeu-dar.t twelve hundred dollars, for refraining from the use of these presses.

Error from Eolias Circuit Court — Before the Hon. P. T. Harris. A motion was made in this ease, by defendant, Hill, to quash the writ of error, because it was brought in the name of Swift alone, for the purpose of reversing a judgment rendered on an appeal bond, against Swift and Harris. This record specifies no particular road, for failing to work on which, the party was sued.

Error from Monroe Circuit Court — Before the Hon. SioN L. Perry. This was an action of assumpsit, brought by Coolidge, as assignee of ail accepted bill of exchange, against Moore, the acceptor. There was but one count in the declaration, which was upon the bill of exchange; the amount of which was charged to be $672. There was an averment of non-payment, but no averment of protest. No plea appears upon the record ; yet there was a jury and verdict.

(Motion to dismiss for the want of writ of error.) Stewart asked that a certiorari might be issued, to bring ,up the writ of error : or if the court would hot grant this, he asked that the trial might proceed : the plaintiff in error was ready; and as this case had been here for several terms, if was too late to dismiss for want of a writ of error.

(Motion to dismiss.) Salle moved tt> dismiss, for want of a citation. Something was said by the court about the same motion having been made at last term, and overruled. Goldthwaite. — The defendant appeared at last term.He appeared and moved to dismiss the case for want of a citation, as will appeár from the record. The appearance which he then Made cures the defect which he now complains of.- Salle. — An appearance to dismiss is not an appearance to th'e cause.

Error from. Mobile Circuit Court — Before the Hon.. - P. T. Harris. This was an action of assumpsit, brought by Daniel Stowe, trading under the firm of Stowe, Ellis & Co. to the use of H¡ A. Ellis, against James Taylor.

Error from the Circuit Court of Autauga County — Before the Hon. P. T. Harris. In this cause, which was an action of detinue for a slave, brought by Young against Tatum,'the plaintiff challenged a juror for cause.

:Error from Wilcox Circuit Court — Before the Hon. Sign L'. Perry. This was an action of trespass on the case, brought ’ey /illiahison for the use of Nicholson, against Gee, on a wrii^ 1 ten instrument given by the latter to Williamson, acknowledging the receipt of eleven hundred dollars, the amount of a debt then due from Williamson to the St. Stephens Bank, and promising to pay the said bank debt as the instalments should become due.

Error from Perry Circuit Court — Before the Hon, P. T. Harris. Walters, the defendant in error, brought an action of slan*der against Commons, iri the Circuit Court below, for saying that he, Walters, bought cotton of negro slaves,; and in one count, that he hired negroes to steal cotton and bought it of them.

An Appeal from a decree of the Mobile Circuit Court- — Before the Hon. Pi T. Harris.

Error from ike Circuit Court of Mobile County — Before the Hon. P. T. Harris. B. H. Hall, on the 1st of March, 1821, entered into a written agreement with Banieron and Williams, whereby they were to build him certain stores in the city of Mobile.

Error from Perry Circuit Court¡ The plaintiff below, who is also the plaintiff’ in error, brought an action of slander against the defendant. The declaration contained several counts.

Error from Wilcox Circuit Court — Before the Hon. Sion ■ .L. Ferry.' This case was submitted without argument. The follow» ing is the opinion of the court:

Error from Wilcox Circuit Court — Before the Hon. P. T. Harris. This cause was submitted without argument. The following is the opinion of the court:

Error from Wilcox County Court. Irvin & Dunlap sued Evans on a note, ‘ which the declaration shows to have been executed in South Carolina. 'The defendant demurred; and final judgment was given against him on demurrer. Tne' court gave judgment for a larger sum than the principal due on the note. That there was no venue laid in the declaration, and that judgment was given for too much, are the principal assignments of error.

An appeal from a decree of the Mobile Circuit Court. Hogan conveyed a lot and certain bnildings in the city of Mobile, accompanied with relinquishment of dower, to Gordon, as trustee, to secure A. F. Stone and Company against any loss which they might sustain on account of their having become indorsers for him on a note given to the Mobil© Bank.

krror from the Circuit Court of Dallas County — Before the Hon. P. T. Harris. Mosely brought suit against White, in the Circuit Court in October, 1831, to recover the amount of a decree of the county or orphans’ court of Dallas county. The declaration states the decree as having been made by “ the honorable, the orphans’ court, held within and for the county of Dallas.” The defendant pleaded mil tiel record.

Err : from the Circuit Court of Autauga County — Before the Hon. P. T. Harris. This case was brought into the Circuit Court by an appeal from the judgment of a justice of the peace. It originated in a warrant by White against Hadnot, to recover the amount of a judgment rendered before a justice of the peace, several years previously.

Error from the County Court of Bibb County, Nathan Hicks brought an action of trover in the Circuit Court, against J. J. Harrison and Absalom Harrison, for the value of a slave by the name of Harry. The defendants pleaded not guilty; and the jury found a verdict for the plaintiff for the sum of seven hundred dollars.

.Error from Wilcox Circuit Court — Before the Hon. Sio?? L. Perry. This cause was submitted to the court without argument. The following is the opinion of the court.

Error from Bibb Circuit Courti The action was debt on bond. The attorney of the plaintiff was introduced by the defendant, to prove what had bceri the contents of an indorsement on the bond, which had bees obliterated by the witness. The attorney having been sworn, stated that the matter erased was a mere private memorandum for the benefit of the plaintiff, and that he had no knowledge of the case, other than such as he had received as attorney in the cause.

Error from Franklin Circuit Court — Before the Hon. S. Ik Perry,, Sommerville brought an action of covenant against Jones», upon articles of agreement entered into between tbete^ 1823.' By this instrument Jones agreed that he would ship croP cotton, by Sommerville to New-Qrleans, supposed to be one hundred and twenty bales. Sommerville agreed to pay off a judgment which one Davis held against said Jones for two thousand dollars.

Error from Bibb Circuit Court. This was an action of trespass quart clausum fregit, brought by Williams against Perkins, for entering upon his grounds and taking his rails. The plaintiff obtained a verdict; but the damages recovered did not exceed five dollars. The court below refused to give judgment against the defendant for full costs, arid gave a judgment, against him for costs to the amount of the damages recovered, and no more.

On a point reserved by the Limestone Circuit Court. This was a question reserved by the court-below, for the, ■ determination of this court, arising on the trial of Hawkins for horse-stealing. The prisoner pleaded, that subsequent to the commission of the offence with'which he was charged, if committed at all, he had been convicted for negro-stealing, and that he had been pardoned by the Governor, for this last mentioned offence.

Error from St. Clair Circuit Court. This was a case brought before the Circuit Court, by cer-tiorari from the office of a justice of the peace. The Circuit Court gave a judgment superseding the judgment given by the justice of the peace, and awarded cost against the plaintiff in the action before the justice. The court erred in superseding finally the judgment of the justice of the peace. The case should 'have been tried de novo.