Volume 1 — Stewart's Alabama Reports (1827–1831)

<p>Garnishee in attachment answers that defendant held his note for @1200, to which he has a set off, and until settlement he knows not what is due; judgement cannot be rendered against the garnishee for the $1200, subject to the set off.</p>

<p>To authorize a summary judgement against the security on a bond for' the delivery of property taken m execution and claimed by a third person, the sheriff must have returned such bond forfeited.</p>

Edwards brought an action of debt against Bruce in Lauderdale County Court, on a joint promissory note of Caleb S. Manley and Bruce.

In Dallas Circuit Court, Haynes declared against Woods in assumpsit for $500, the price of a lot in Selma, sold to him. The declaration contained the other common counts for.work, &c. goods, &c. sold, and quantum vale-bat for the lot. Pleas, non assumpsit and statute of limitations ; and issues. Verdict and judgement for defendant.

<p>1. in assumpsit against endorser of a bond, that “defendant did not pay according1 to the tenor and effect of the writing1,” &c. is sufficient assignment of breach.</p> <p>2, Commission to talce deposilion of witness issues on the affidavit of tile attorney, that he believes that his testimony is material and lias been informed that he resides in Tennessee; time of notice not set out by clerk, but time for taking set forth in the commission anti notice given on day it issued — Deposition may be read.</p>

In Lauderdale County Court, Gabriel Bumpass, M. H. Buchannon, J. Terrell, H, Stockton and J. Davis, brought an action of debt against Matthias Richardson, on a writing obligatory, payable to said Bumpass, Buchannon, John M‘Cracken, German Lester and Tyree Rhodes.

<p>Endorsement of writ describes the contract as under seal; declaration as a promissory note; judgement by default. The variance is not material.</p>

<p>In assumpsit, if verdict be for less than $50, and the plaintiff does not file his affidavit as required by the statute, he cannot have judgements</p> <p>.. Note. In the case of Howard v. Wear, [Minor’s Ala, Rep. 84,] decided at December term, 1822, the contrary doctrine appears to have been held.</p> <p>See Curtis v. Gary, Minor's Ala. Uep. 118.</p>

Assumpsit in the Circuit Court of Lauderdale county, by John Webb against Gabriel Bumpass, for money had and received, paid and advanced, &c.; general issue. Verdict and judgement for plaintiff.

Trover by Dossey against Pace, in Morgan Circuit Court, for a bank note of g50. Defendant plead, 1. Not guilty. 2. That in a suit by plaintiff against him before J. T. a justice of the pence of said county, judgement was rendered in his favor, which judgement remains unreversed or otherwise vacated, and which suit and judgement embraced and determined the matter of controversy involved in this suit. Issue on the 1st plea; demurrer to the 2nd.

<p>The statute of 1807, enacting that no freeholder shall be sued out of the county of his permanent residence, extends to suits before justices ofthe peace.</p>

<p>A.witness, at instance of one who is party in several suits, is entitled to his compensation in each case in which he is summoned. He may transfer his certificate and the holder can sustain an action m the name of witness for his use.</p>

This was an action of trover in the Circuit Court of Morgan county by Stainback v. High, for three negro slaves which he claimed under the will of Samuel Lyle, bequeathing to him in trust for the use of Mary High, daughter of testator, and wife of defendant, for her life, and after her death to her heirs. On the trial, the plaintiff offered Thomas and Peyton Lyle as witnesses.

<p>X. In proceeding' on a writ offorcible entry and detainer, the justice is not required to record the whole of the evidence.</p> <p>2. The complaint describes the boundaries of the premises that plaintiff claims by virtue of a fee simple, and says he was inpos-ession; that defendant entered with force and strong hand and turned him out of possession: this sufficiently specifies the lands, plaintiff’s estate tin rein, and the injury.</p> <p>3. Since the act of 1823, ihe venire facias and other process might be executed by a constable.</p> <p>4. It is not necessary that any of the jury should sign the verdict, or that it should appear that the complaint was read to them.</p> <p>5. Jurisdiction of a justice on writ of forcible entry and detainer, is' not in violation of the constitution.</p> <p>Note. See acts of 1825, p. 6, by which sheriff's are authorized to serve process ia cases of forcible entry arid detainer.</p>

<p>I ssue on plea of covenants performed; defendant cannot on the ground that the suit is not brought by proper parties, exclude an instrument which is correctly described in the declaration</p>

<p>cited 4 Ros. and P. 351.</p>

A bill of exchange on Searcy, in favor of Erskine for ¡S80, drawn on 25th September, 1819, was accepted on 1st April, 1821. On 24th October, 1822, Erskine assigned it to Arthur M. Henderson by a special endorsement, making himself responsible if the drawee should prove insolvent. Henderson by precisely a similar endorsement, transferred it to MbLendon, who thereupon brought his action and recovered a judgement against Erskine in Madison County Court.

At the March term 1825, of the Circuit Court of Tuscaloosa county, Phil, a slave, was indicted and found guilty of an assault, with an intent to commit a rape. The judgement was arrested. At October term, 1825, an indictment for the same offence, charging the assault to have been on a free white woman, was returned a true bill.

<p>In an original attachment, the affidavit of a garnishee, taken before a ■ justice of the peace, and without summons ; furnishes no foundation for proceeding' against d< fondant.</p>

In the Circuit Court of Bibb county, Reynolds brought an action of trespass quare clausum fregit against Speers, charging that the defendant, as overseer of a road running through plaintiff’s) land, cut down a number of his trees, and took them, and a large quantity of his rails, and con* verted them to causewaying the road, without contracting with him for said timber, and against his will and consent.

This was a case of forcible entry and detainer, tried before a justice of the peace, in Dallas county. The jury-found the defendant Ferguson, guilty of an “unlawful detainer,” and the magistrate gave judgement of restitution. Ferguson by certiorari, removed the case to the Circuit Court, where the judgement was reversed on the following grounds. 1.

<p>A slave may be punished by whipping1 and branding for manslaughter. See Laws Ala. 185. Stat. of 1826.</p>

Debt by Owen v. Rather, in the Circuit Court of Jefferson c.iunty. Next after the declaration, which was filed at the return term of the writ follows : “ At which said term, came the plaintiff by his attorney and moved the Cou>t and ob ained a judgement by nil dicit.

In the Circuit Court of Madison county, Black declared vs. Bennett for a malicious prosecution in having a warrant issued against him, and having him arrested for the crime of robbery, in forcibly taking a negro slave from Bennett’s possession, not guiity, and issue verdict and judgement for the plaintiff. £)n the trial the plaintiff gave in evidence, a warrant for the apprehension of himself, Hugh M. Miller, and Fran-f;js yy.

In the Circuit Court of Madison county, Adams declared against Ward for saying of him, “he has stolen hogs, and I can prove it.” . There were several counts in the declaration, in which the form of the accusation alleged to have been made, was varied. Verdict and judgement for the plaintiff, for one cent damages and one cent costs.

BRooics recovered a judgement before a justice of the peace, against Bass for S40, and he brought the case to the Circuit Court by certiorari. The action was on a promissory note, dated 14th April, i 824, payable at 30 days. Bass plead usury and payment, on which issues were joined. Verdict and judgement for the plaintiff.

This action was brought by Oliver, in the Circuit Court of Clarke county. The writ was returned by the sheriff of Clarke county, “ Executed. At the October tet m, 1825, a verdict was found for the plaintiff. The errors assigned by W ilson in this Court, appear in the opinion.

This was an appeal from the judgement of a justice of the peace to the Circuit Court of Monroe county. The action was brought to recover the amount of a note “ traded,” by defendant to plaintiff, but ->ot endorsed bv defendant, nor did his name appear in. or on it.

Assumpsit by Pattison against W. andJ. Wallace, on a special agreement. General issue.

John Brown, jr , impleaded John Adams, in the Circuit Court of .lefferson county, in an action of as-sumpsit, and declared against him in five counts. 1 he first count charged, that on the 7th July, 1823, in consideration that the plaintiff would, at defendant’s special instance, enter into a bond as a security for John jVI'Vvhor-ter, sheriff of said county, that he the defendant, would see to the management of the sheriffalty, and save the plaintiff harmless from all…

Farnsworth brought an action of assumps>t in the Circuit Court of Mobile county, and declared against Richardson as maker of anote for §2,591 61, payable to one John Walker, and by said' Walker endorsed to the plaintiff; alleging therein that said endorsement was made before payment of said note, and before the time fixed for payment, of which the defendant had notice, &c. To this declaration the defendant filed two pleas of payment.

Foster and ICirksey declared in debt in the Circuit Court of Tuscaloosa county, against Marr, on a penal bond, conditioned to perform such award as certain arbitrators might make in a controversy between them, and alleged that they had awarded, that Marr should pay $606 50, in instalments at stated times ; which sums he had failed to pay, and that he had not performed said award, &c. The defendant Marr pleaded two pleas ; 1st, That he had well and truly performed said award,…

Assumpsit in the Circuit Court of Lawrence county, by M‘Afee against Trotter and JYPGonnegal. Verdict and judgement for the plaintiff. On the trial it was proved, that the plaintiff had contracted with defendants for the sale of his crop of cotton, to be delivered at the gin of one Peters, who was authorized by them to receive it, and was furnished by them with bagging andirope, for the purpose of having it baled and prepared for’market.

<p>After the term to which an appeal from a justice of the peace is re* turned, it cannot be dismissed for the rust fficiency of the appeal bond, unless a motion to dismiss is made at the return term and continued.</p>

Cobb recovered a judgement before a justice of the peace against Smith, the maker, and Fortner, the endorser, of a promissory note; they appealed to Madison county Court, and there by leave of the Court, Cobb dismissed the suit as to Fortner. The County Court gave judgement against Smith and Hill, his security in the appeal bond.

The original judgement of the Circuit Court, having been reversed in December, 1824, a and the cause remanded, the Circuit Court at October term, 1825, rendered judgement for the defendant, against plaintiffs in error.

<p>In rendering judgement nunc pro tunc, the Court cannot resort tp the record in a distinct suit, toough referred to by the Clerk, to supply omissions.</p>

Trover in the Circuit Court of Washington county, by Theophilus L. Toulmin against Buchanan, fo- a negro man slave. General issue, ver,diet and judgement for defendant. The pli’intifi tlahrcd the slave under a gift from James Caller, the fathei of his wife ; he was married iu the early part of the sun unci, and the gift was made in the sun ceding fall. At the time of his marriage, he received *our or five negroes from his father- in-law.

In the Circuit Court of Wilcox county, Rhodes brought an action of trespass against Morgan, charging him with having killed his, the plaintiff’s slave, of the value of $1000 whereby the slave was wholly lost to him.

<p>One executor may maintain an action against another on his express promise.</p>

<p>1. Where u plaintiff neglects to sue out his execution from term tov term, an execution on a younger judgement delivered io the sheriff during such neglect, ivill acquire a prrfe. erice</p> <p>2. A constructive fr uid is an act hich the law declare s to fa» fraudulent, wi -bout inquiring into Us motive- Not because arbitran rules on the subject have been laid down, but because such an .act carries in itself irresistible evidence of fraud</p> <p>3. A party who is secured hv a do d of trust on property mry, when a defee is discovered in the deed, receive a judgement by confes-sio' fom his debtor, and by execution, sell the property. Vhis is not a fraud on other creditors.</p>

These were appeals from decrees of the Circuit Court of Madison county, sitting in Equity. The main points being the same in all the cases, they were all taken up for argument at the same time.

William B. Allen obtained an attachment against Peter M'Laren. which was levied on his goods. M'Laren with Allen Adkins, E. R. Byrd and William Barksdale as his securities, executed their bond in September, 1821, to replevy the goods, agreeably to the proyisions of the act 0f 1818. a Said bond was made payable to the sheriff in the penalty of $686.

Sat.tmarsu and Becic sued out an original attachment against Evans, as a non-resident, returnable to the Circuit Court of Wilcox county. The bond was conditioned to prosecute the attachment to effect, and to pay to Evans all such damages as he might sustain by the wrongful or vexatious suing out of the attachment. The Circuit Court quashed the attachment on the ground, that the bond was not conformable to the statute. Tho, plaintiff’s prosecuted a writ of error to this Court.

This was an action on the case by Loftin against M‘Le-more,' in the Circuit Court of Montgomery county, for erecting and continuing a dam across a stream running through the plaintiff’s land, by which the plaintiff’s timber was killed and destroyed, and his land injured, 8cc. which dam plaintiff requested defendant to remove, and which he contined to keep across the stream, notwithstanding such request. General issue, verdict and judgement for the defendant.

<p>An action will lie against two partners, on a written contract, in (lie name of one only, and evidence aliunde may be given to prove that it wis a partnership contract.</p>

<p>3. A contract to pay a certain quantity of cotton on a clay stated, or in current money, rating- the cotton at twenty cents per pound, is for stipulated damages and not a penalty</p> <p>2. Courts of law ard equity have concurrent jurisdiction on questions of penalty, and after an adjudication at law on the question, the only remaining ground for equity jurisdiction is for discovery,</p>

Trespass by Ross against Ward, in the Circuit Court of Mobile, for the recovery of possession of a lot or land. General issue, verdict and judgement for tbe plaintiff. On the trial the plaintiff gave in evidence a copy, certified by the clerk of the County Court of Mobile, of a power of attorney from Jotham Meeker, of New Jersey, to William Crawford, authorizing him to sell and make conveyance for the lot.

In the Circuit Court of Perry county, Robertson brought an action against Lea and wife, for slanderous words spoken by Mrs Lea of him. The words charged in the first count were, “ he is perjured in the second count “ he has committed perjury,” with other counts, stating other forms of expression.

Assumpsit in the Circuit Court of Wilcox county, by Wells against Ross and wife on a promissory note made by Mrs Ross, while sole and William J. M‘ Carro 11 payable to Wells. The writ iss ied against Ross and wife and M1 Carroll jointly, not being executed on M'Carroll, the suit was discontinued as to him. Issues on the pleas of non assumpsit, failure of consideration and fraud in obtaining the note. Verdict and judgement for the plaintiff.

Temple Lea and Nancy, his wife, brought an action against Isaac Robertson, in the Circuit Court of Perry county, for slander.

Trespass vi et armis by Roberts against Rhodes, in the Circuit Court of Dallas county.

Clarke brought an action against M'Elroy, before a justice of the peace of Dallas county, on a note for §30, payable to G. Ponsonby, or bearer, dated 15th January, 1825, payable 1st of January next. The case being taken by appeal to the Circuit Court, verdict and judgement there were for the defendant, on the pleas of payment and set off.

<p>t To sustain a judgement on motion against a sheriff, the record must shew that he had notice of ti e motion</p> <p>2, Semble, a motion will not lie for not returning an execution which had been superseded.</p>

<p>Judgement by default. The transcript contains a bail bond, but no writ. Judgement sustained.</p>

<p>Error to render judgement by default before declaration filed,</p> <p>Note. Rankin vs, Crowells, Minor’s Ala. Rep. 125, accordant.</p>

In the Circuit Court of Madison county, M‘Nairy brought an action on the case against Pryor, for fraud and deceit in thé sale of two horses.

Alered Yarbrough and Robert Goodwin, agreed in writing to submit to the arbitrament of Thomas Ring-gold, James Gay andBenajah P. Whitlow, a control ersy between them as to killing a mule and wounding a horse of Yarbrough, and killing another horse the property of T. C. Livingston, and in Yarbrough’s possession as his agent; which injuries he charged to have been done or procured to be done by Goodwin.

Joseph C. and Charles C. Keyser, brought an action sf assumpsit, in the Circuit Court of Pike county; and declared on a promissory note made by Pitts, payable to them.

<p>In an action for an assault and battery, defendant cannot introduce evidence of provocation not immediately preceding-and connected with the assault.</p>

<p>Judgement cannot be rendered against a sheriff for an escape, unless the verdict expressly find that the escape was by his consent or through his negligence : or that the prisoner might have been retaken, and the sheriff and his officers neglected to make immediate pursuit.</p>

James S. Gaines sued out a scire facias to Madison Circuit Court against Stephen Neal, late sheriff of Madison county, reciting that a writ of capias at his suit against Samuel Ragsdale, by the endorsement whereof bail was required, had been executed, and said Ragsdale arrested by said Neal, then sheriff of said county, by virtue thereof, and that he failed to talce bail as required; by reason whereof, and by virtue of the statute, &c. he became liable as bail for Ragsdale.

In the County Court of Lawrence county, Garth declared in assumpsit against Anderson that, by written agreement between them, defendant acknowledged that he had sold to him his crop of cotton, supposed to be 20,000 pounds, and promised to gin and bale it, and deliver it at Brown’s ferry as soon as practicable ; and plaintiff bound himself to pay defendant for it at the rate of 11¿ cents per pound as soon as delivered ; the amount of an execution which plaintiff had against…

M‘Kenzie and Bennock brought an action of debt in the Circuit Court of Marengo county, against Connor, to recover on the exemplification of a record of recovery by them in the State of Georgia.

David Ripitoe, on the complaint of Dixon Hall, was summoned to the County Court of Montgomery county, to shew cause why his letters of guardianship on the estate of Wesley D. Hall, should not be revolted. Charges and specifications were made as follows : 1. A general charge of mismanagement of the property ánd illegal conduct as guardian.

William Johnson, for the use of Thomas Stone, sued Joshua English in the Circuit Court of Dallas county, in assumpsit, on a promissory note made by English to Johnson.- The note was produced with the following endorsement: “ I assign the within note to Thomas Stone, value received, December 1st, 1823.

This was an action of trespass' by Nabors against Wood, in the Circuit Court of Jefferson county, brought to try the title, and recover possession of a half quartet-section of land. General issue. Verdict and judgement for plaintiff.

Rives brought an action of debt, in the Circuit Court of Dallas county, in August, 1822. against Rinaldi on a promissory note, for g>150, dated 6th September, . 1820,. payable 12th November, 1821.

<p>Pleas of the (garnishee on a scire facias against him, bringing in question ti e regularity of the proceedings as between the plaintiff' and the defendant to the attachment, may be stricken out as frivolous.</p>

Debt in the Circuit Court of Limestone county by defendants against plaintiff in error. The writ of capias was returned “Executed 7th October, 1822. James Slaughter, sheriff, by Ruffin-Coleman, deputy sheriff.” Garner plead in abatement that the writ was not executed by the sheriff, or any other lawful officer of said county, and that Slaughter was not, at the date when it purports to have been executed, the sheriff of said county.

The court of commissioners of revenue and roads of Lauderdale county, having appointed a jury to lay out a road in the county, five of the jurors made their return of the >oad as marked out by them. Henry Smith there-0-'0« obtained a certiorari to remove the proceedings iuto the Circuit Court. The Circuit Court, at October term, 1895, dismissed the certiorari. Smith sued out a writ of error, and made several assignments of error.

Webster and Smith as copartners, declared in the Circuit Court: of Tuscaloosa county, at September term, 18 ?3, against Wyser, Colgin and ¡VTGéhee, in assumpsit. Ti-e declaration contained two common counts for work and labor by the plaintiffs as bricklayers, and for materials furnished, &c. in building an academy.

<p>Writ of error will not lie on a voluntary nonsuit,</p>

<p>Notice of taking depositions left at dwelling house of party, with his clerk, not sufficient.</p>

Withers , filed his bill in Madison Circuit Court, stating that in an action on a contract for building the run-rung gear of a cotton gin and mill, Thomas F. Dickey had recovered judgement against him ; that the work was not done according to the contract.

A fi. fa. Williams against Howson, was delivered to a deputy of M‘Broom, sheriff of Madison county, who made return thereon, “ levied 24th December, 1823, on four negroes,” naming the negroes, and other property, “property claimed by Fleming Hodges as per affidavit, made 4th February, 1824.” Notice on behalf of Williams, was served on M‘Broom, of a motion for judgement against him, for having failed and refused to cause the money to be made, and for having failed to return…

The plaintiffs sued a sci. fa. to Madison Circuit Court, in which it is stated, that they instituted an action of covenant in said Court against Littleberry Robinson, pending which he died intestate. It was revived, and judgement rendered against bis administrator..

At the November term, 1826, of the Circuit Court of Washington county, the grand jury found an indictment against Hiram McLendon, for murder, to which he plead not guilty.

<p>Declarations made by vendor after sale, cannot be .given in evidence to defeat the title derived from him. W. conveyed'with warranty to M, M. to Y, Y. to plaintiff, W. and wife are competent witnesses for defendant.</p>

<p>The payee is a competent witness to impeach the consideration of the note.</p>

Debt in the Circuit Court of Madison county, by the plaintiffs against the defendants in error, on their bond in the penalty of gro,000,… Held: that such bailee is not liable for loss by theft without his negligence; and from all the cases, as well as from the reason and principles whit h must govern all such contracts, it seems clear that he cannot be liable if robbed while resisting to the utmost of his power; and, (as it was competent -for us to have proved under our…

<p>In tréspásg against several, if the inferior court order a change of venueas U? one only, the Supreme Court will supersede the order.</p>

<p>Assignment of mere technical errors made before motion for affirm-* anee, but not within the first three days. Judgement affirmed on motion.</p>

This case at December term, 1824, having been remanded to the Circuit Court of Madison, a the plaintiffs there filed an amendment to their’ declaration, in the first count of which they state the several circumstances of the transaction nearly as in the fourth and fifth counts of the original declaration, and make other averments, not made in their original declaration, viz : That defendants agreed to procure to be executed and delivered to plaintiffs the promissory note of…

Murphy sued an original attachment against Davis G. Tuck, returnable to Shelby Circuit Court. King being summoned as garnishee, stated that he had given his note to Tuck, and also stated matters leaving it doubtful whether he was then indebted to Tuck.

In Greene Circuit Court, James Gillespie declared in trespass against Duncan Dew that, the defendant broke and entered his close, and cut down and carried away sundry timber trees, &c. General issue. Verdict and judgement for defendant. On the trial the plaintiff proved title to the land, and that the defendant had cut timber thereon and carried it away, while the plaintiff was so entitled. It was proved that the plaintiff resided about twenty miles from the land.

<p>X: The words “He swore a He,” colloquium of plaintiff’s testimony on a trial before a justice, are actionable. Not necessary that the justice had jurisdiction of the case, or that plaintiff was duly sworn, or that the words charged him with swearing falsely in a matter material to the issue,</p> <p>2. By the statute of 1824, a general verdict on good and bad counts in an action for slander, is sustained.</p> <p>3. Defendant not permitted to shew that plaintiff was not a competent witness.</p> <p>4. If several suits between same parties, plaintiff not required to prove to which of them colloquium referred. -</p> <p>5. Not necessary to prove malice or special damage.</p>

In the County Court of Lauderdale county, James Irvine, administrator of Hugh Hagerty, brought an action of debt on a note which was as follows: “ On the first of January next, we or either of us, promise to pay to Hugh Hagerty, in New-Orleans, or bearer, to [at] the bouse of Bedford and Mackey, seventy weight dollars and twenty cents, value received, this 13th November, 1823. R. O. BENNETT, Seal. WM. F. WITHERS. Seal.

<p>cited authorities in support of the assignment of errors. a</p>

In Mobile Circuit Court, on a trial on the general issue in trespass to recover possession of a lot of ground, Robertson and Barnewell, plaintiffs, against Kennedy and Kitchens, defendants, the plaintiffs offered to read in evidence a deed of conveyance for the lot from Addin Lewis, mayor of the city of Mobile, to them.

Dillahunty recovered a judgement against Parry & Co. before a justice of the peace, and they appealed to the Circuit Court. On the trial there, he produced in evidence, as the foundation of his claim, a paper as follows : 25 • No. 268. 25 Hartwell H. Hobbs, Pay the bearer twenty-five cents in current bank notes whenever the amount of five dollars of my change tickets are presented at your office. Bainbridge, Sept. 12, 1821. Samuel M. Parry & Co. Accepted, Sept. 13, 1821.

This was an action of assumpsit, brought by Brook-shire, executor of Branson, in Clarke Circuit Court, against Landrum, on a note, of which the following is a copy: &200.

<p>1. When the statute of limitations begins to run, it continues to run, no'withstanding an intervening disability to.sue. But if the. time limited has not elapsed at the death, one having the rig-h> of action, his executor or administrator may sue within twelve months from his death.</p> <p>2. file slave in controversy, hired to defendant to continue in his service till d manded. A special demand necessary.</p>

Debt in the Circuit Court of Shelby county, Edmund King against James W. Faris and Edward Powell, on their bill single, for S500, dated 22nd April, 1824, payable to Isaac Johnson, 1st January, 1825, and by him assigned to the plaintiff. The defendants plead several pleas, all in' effect, averring, that the note was given in consideration of $400, lent by King to Faris, and in violation of the statute to regulate the rate of interest.

<p>The principal in a bond tor writ of error, without the assent of his securities, agrees with ttie adverse part/, tha’ the judgement shall be affirmed ; that lie will deliver endorsed bills for the amount, piyable by instalments, and that no execution shall be levied, but - in the event of nonpaymi nt of the bills. The securities are discharged.</p>

A warrant was issued on the 6th day of June, 1826, by a justice of the peace of Shelby county, at the suit of William Johnson against Abner and John E. Hughes, to re. over a forfeiture of $20, which they were charged with having incurred, by failing to keep their cotton gin sufficiently enclosed.

<p>Note. See Gayle vs. Turner; M'Alpin, et al, vs. Pool, Minor’s Ala. R. 204, 316.</p>

On notice and motion by the county treasurer, the County Court of Bibb rendered a judgement in favor of the State of Alabama, for the use of Bibb county, against George Mayberry, tax collector for the county, for the year 1824, and his securities in his bond of office, for £544-9 81, the amount of the county tax for that year, and $67 47, fifteen per cent damages thereon. They prosecuted a writ of error to this Court.

This cause was tried at May term, 1823, of the Circuit Court of Washington county, Judge Webb presiding. The writ of error issued 6th April, 1826. The plaintiffs here assigned as error, that the Court below misdirected the jury. No bill of exceptions appeared in the record.

In the Circuit Court of Lauderdale county, George Zachariah declared in debt against William W. Garrard, on a promissory note for ,$100.

Assumpsit in Autauga Circuit Court, John Allen against John Mathews; both parties died, and the suit was revived by and against their representatives. On the trial, the plaintiff produced in evidence, a note as follows : Milledgeville, September 30, 1818. Sixty days after date, I promise to pay to John Allen or order, at the Branch Bank of the State of Georgia, at; Milledgeville, four hundred and fifty dollars, without de» falcation, for value received. JOHN MATHEWS.

In Lawrence Circuit Court, David Mason declared in assumpsit against Thomas and Isaac Smith, and Noble R. Ladd, on their promissory note for $5,508 19, due and payable 25th December. 1821. At September term, 1823, judgement by nil dicit, was entered against the defendants for $3,885 and the costs.

Peter Morgan, jr. declared against George Goodwin, in the Circuit Court of Washington county, in detinue, for eleven slaves. The defendant pleaded non detinet, a trial was had at November term, 1827, and a verdict found for the plaintiff, for eight of the slaves, upon which a judgement was entered.

Joseph W. Moore brought an action on the case against the mayor and aldermen of the city of Mobile, in the Circuit Court of Mobile county; and declared specially for the loss by the negligence of the defendants, of a certain quantity of gun powder, which had been delivered to them under the city ordinance, which was recited.

Samuel Powell brought in the Circuit Court of Mo* bilecounty, in 1S23, an action of trespass, endorsed under the statute “ to try titles,” against Seth Stodder, to recover of him the possession of the Globe Tavern in Mobile, and the lot upon which it stood, and damage# • for the detention. The defendant pleaded the general issue, and at February term, 1826, a trial was had, and a special verdict was found by the jury.

This was an indictment found in the Circuit Court of Mobile county, against Stebbins and eight others, charge ing them with having exercised banking privileges, in issuing a note for circulation as a bank note, without the authority of law, and contrary to a statutory enactment.

Edmund King brought an action of debt in the Circuit Court of St Clair county, against Garland Hardwick, to recover on the exemplification of a record oi recovery, in the Superior Court of Jackson county, Georgia, wherein said King had obtained judgement against Hard-wick for 84,473 27. The declaration contained one count in the usual form on the record. The defendant pleaded: 1st. Nul tiel record. 2nd.

This was an action on the case brought by McCrary, in the County Court of Lawrence county, against Scott, for the recovery of damages for a malicious prosecution instituted by Scott before a justice of the peace, against him for felony; A trial was had on the plea of not guilty, and a verdict was found for the plaintiff for $154 damages'. On the trial in the County Court, the defendant ten* dered three bills of exceptions to the decisions of the Court.

Beckwith was indicted in the Circuit Court of Lau-derdale county, for an assault on one David Houston. The indictment contained two counts ; one for an assault with an intent to commit murder., the other for a common assault. In each count, the offence was laid to have been committed “ on the-day of-in the year 1826.” There was a verdict and sentence against the defendant.

Thomas- and William Brandon as copartners, brought an action of trover in the Circuit Court of Madison county, against the President, Directors and Company of the Planters and Merchants’ Bank of Huntsville, and declared for the conversion of certain bank bills, issued by said Bank, two hundred and seven in number, describing them as amounting in all to the sum of @2190, and averring that they were equal in value to that sum.

William S. Jones brought an action of covenant against Alexander Somerville, in the Circuit Court of Franklin county, and declared for the breach of a contract made between the parties on the 8th of January, 1823, in which there was a variety of stipulations concerning the shipment and proceeds of a crop of cotton ; and wherein among other things, Somerville obligated himself “to pay and discharge a judgement which had been obtained against Jones as the administrator of one…

This was a writ of error sued out by the State, to reverse the judgement of the Circuit Court of Washington county, on a motion made in said Court at the November term, 1826, by the State against the Bank, for the recovery of a penalty of two thousand dollars, incurred by the President, Directors and Company of said Bank, for having failed to pay as required by law, into the Treasury of the State, on or before the 1st day of January, 1824, a tax at the rate of fifty cents on…

This was a writ of error from the County Court of Monroe county. The action originated in a justice’s court in said county. The warrant was issued in August, 1826, against Theophilus Nicholson, to answer the complaint of Monroe county; it was endorsed “to recover five dollars, returned by the overseer for failing to work on the roads,” and was executed on Nicholson.

F. Boykin, Executor, and S. Bassett, Executrix of Thomas Bassett, declared in the Circuit Court of Washington county, in covenant against W. Jordan, on a writing under seal, made by him and James Caller, on the 29tli of June, 1816, by which they acknowledged to have hired of the plaintiffs as executors, four negroes, from the first of July till the las* day of September, in that year; and thereby promised to pay them on the last day of September, ‡17 SO per month each, for…

This was a writ of error sued out by Pope and Hickman to reverse a judgement rendered in the Circuit Court of Madison' county, in the same cause originally commenced… Held: that if the note was an entire forgery, the failure of the defendants tp offer, as goon as the allegation of forgery was heard, to return the note, released Pope and Hickman from responsibility. That decision of the Court irrevocably settled the rights of the parties in relalion to the note transferred.

This cause was brought into this Court by writ of error sued out by Pope and Hickman, who were also plaintiffs below, to reverse a judgement rendered by the Circuit Court of Morgan county, at April term, 1826, on a summary proceeding against Stout, as coroner of said county, for failing to return according to law, a certain writ ot fieri facias which had issued on the 18th of November, 1819, from the then Superior C.onrt of said county, then called Cotaco county, in favor of…

J. N. S. and A. P. Jones brought an action of covenant in Madison Circuit Court, against Joshua and Bart-ley Cox.

A. R. Alexander and J. H. Bills recovered a judgement against P. Ward, in the Count)' Court of Lauder-dale county, at January term, 1826, in an action of debt. Ward on the 17th of July, 1826, sued out a writ of error on said judgement, returnable to the (circuit Court of said countv; and gave bond with Samuel Maxwell and Waller Ford as his securities, to supersede the execution.

Robert Matthews brought an.action for slander against John Thirman, in the Circuit Court of Morgan county. The venue was changed on the application and shewing of the plaintiff, to the county of Limestone, where the cause was tried. The declaration, which was filed in Limestone county, consisted of three counts.

An action of debt was brought in September, 1826, in the name of John Murphy, Governor of the State, against T. C. H. Gantt, John May, Pleasant May and James May, in the Circuit Court of Greene county, on a sheriff’s bond made by Gantt as principal, and the other defendants as his securities in office; to recover the amount of the estate of Anthony Parks, deceased, which it was said Gantt had received and failed to pay over according to law.

This suit, together with another similar one, was instituted before a justice of the peace in Tuscaloosa, by P On the trial (the causes being tried together) a bill of exceptions was taken as follows: “ Be it remembered that these two cases were by consent submitted to the same jury; and on the trial it appeared that the plaintiff as a constable, held in his hands three executions against the sou of the defendant, Elliott.

James Patterson brought an action of assumpsit against Samuel G. Cloud, in the Circuit Court of Cone-cuh county, to recover on a note made by Cloud on the 4th May, 1824, for ¡¡¡5650, payable to Patterson or bearer on the 1st of January thereafter. The defendant pleaded nonassumpsit, want of consideration, and failure of consideration. There was a verdict for the plaintiff and judgement.

John Loving brought covenant in Madison Circuit Court, against Eldridge K. Rivers and Robert Rivers, on a written obligation made by them. The writ was served on Eldridge only, Robert was returned not found. The declaration was against both. The plea was filed in short in those words: “Plea covenants performed by consent.

Alexander Autery and Anonymous Autery, were indicted in the Circuit Court of Conecuh county, for an assault and battery on one Charlton Thompson. At September term, 1827, the case was tried and the jury found the defendants guilty, and assessed against Alexander Autery a fine of five hundred dollars, and against Anonymous Autery twenty-five dollars.

Ransom Davis and Pekson Davis, executors of William Davis, deceased, sued out a writ in debt in the Circuit Court of Dallas county, against Samuel G. Norris, Alexander Cathey, Tilman Hitt, and Matthew M‘CIellan, to recover on a bond made by them the 1st July, 1822, in the penalty of $605, payable to Joseph Graham, sheriff of Dallas county, and by him assigned to the plaintiffs as executors ; with condition that, “ whereas the said Norris had been charged and taken in custody…

This was a case of unlawful detainer, where a verdict and judgement had been rendered before a justice of the peace in Franklin county, in favor of G. W. Martin, against Gavin Payne.

This was an action of assumpsit, brought by Morgan G. Brown against John Thomas in Perry Circuit Court, on a promissory note. The declaration is entitled of November term, 1826, and in the record, in its proper place, and entitled of the same term, is a plea of nonas-sumpsit, filed by the defendant.

Joseph Robinson brought an action against John Van Steinburg, in the Circuit Court of Dallas county.

This was an action of detinue for a negro, brought on the 1st October, 1824, by J. and W. Park, as copartners, against Jesse Jones, in the Circuit Court of Franklin county. The general issue was pleaded, and at the October term, 1826, a verdict was found for the plaintiffs for the negro, or §500. his value, andj§150 damages for detention. By a bill of exceptions taken by the defendant, it appears that the negro belonged originally to one James M‘Culloch.

Benjamin Cleveland commenced an action of debt in Dallas Circuit Court, against James Blair by original writ; and upon a return of “ not found,” sued out a judicial attachment against the effects of the defendant, which issued by order of the Court, and was levied on s;x negroes.

Abner Robinson sued out a warrant in 1823, in Madison county, against Francis L. Adams, D. Wade, and G. Terry, which was served on Wade and Terry only. A general judgement by default was rendered by the justice for the plaintiff, from which Wade and Terry appealed to the Circuit Court, and gave B, Reynolds for security.

<p>The points shewn by the record on which the decision of this cause turned, appear in the opinion of Bhe Court.</p>

Matthew Gayle and George W. Pitts, as administrators of John Greening, brought an action of detinue in the Circuit Court of Dallas county against A. J. Blackburn, for a slave as the property of the deceased, by him detained. In their declaration they alleged they were appointed administrators, with the will annexed, of said Greening, by the Judge of the County Court of Dallas county.

G. D. Stone, Judge of the County Court of Franklin county, as successor in office of James Dayis, brought an action of debt in the Circuit Court of said county, against Silas Fuqua, on an administration bond made by the defendant (and others as his securities) as administrator of Jacob Fuqua, payable to James Davis, Judge, &c. and his successors in office, in the penalty of §4000, conditioned that he should faithfully discharge the duties of said administration.

George and Thomas Sutherland brought an action of trespass on the case in the Circuit Court of Lawrence county, against Hance M. Cunningham, sheriff of said county, endorsed to recover for making a false return of ,• an execution.

■ This was a suit commenced bir tbe President and Directors of tbe Bank of the State of Alabama, in tbe County Court of Tuscaloosa county, by notice and motion against James G.' Lyon, a security in a note discounted, by said Bank. The notice issued by the Bank 'was as follows : “The sheriff of Washington county will serve and return this notice. Bank of the State of Alabama, Tuscaloosa, June IS. 1827. To TVm. D. Gaines, Geo.

This was a writ of error from the Circuit Court of Franklin county. The action was covenant, brought by R. White against P. Martin, administrator of J. Heslip, to recover damages for failing to return five negroes, which had been hired by White to the intestate Heslip and others, and which they had covenanted, among other things, to return at the end of the year.

This was a writ of error from the Circuit Court of Lawrence county, sued out by Cook to reverse a judgement rendered against him at September term, 1824, in favor of Cockrill, for $621 50» as endorser on a note for $300.

This was an action of trespass commenced by Austin in Perry Circuit Court for an assault and battery committed on him by Logan. Logan pleaded not guilty, justification, accord and satisfaction and a release, which pleas were taken in short. At the April term, 1827, there was a verdict and judgement for the plaintiff, damages g500.

This was an action of debt against Martin as administrator of Heslip, in the Circuit Court of Franklin county, on an instrument which on oyer, is set out as follows: “$1583 33§ On or before the twenty-fifth day of December next, for value received, I promise to pay Isaac Dortch the sum of one thousand five hundred and eighty-three dollars thirty-three and onfe third cents, if-being for bacon purchased from said Dortch.

Laweence brought an action of covenant in the County Court of Limestone county against Foote; issue was joined on the plea of covenants performed, and at the January term, 1827, there was the following record of the trial: “came the parties by their attorneys, and thereupon also came a jury of good and lawful men to wit, (here follow the names of eleven persons only,) who being duly sworn to try Ihe issue joined, on their -oaths do say, “we the jury find said issue for the…

This was an action of assumpsit brought by Williams, against Summerville, in the Circuit . Court of Franklin county, as endorser of a bond.

This was an action of debt by the plaintiff in error.who was plaintiff below, in the County Court of Madison county, to recover of Scott on two notes for $2000 each, both dated' the 20th of April, 1820. The defendant pleaded a failure of consideration, and also fraud. The notes were originally payable to one Evans, and were assigned to the plaintiff.

<p>cited 3 East. Rep. 165,166.</p> <p>cited 4 T. 247. 2 Stra. 691. 2 Chit. 299. 7 Eng. Com. Law Rep. 217. Saunders 228 to 230.</p>

Johnson brought an action of debt in the County Court of Shelby county, against Whatley and Gragg, on a note. The declaration contained two counts, the first charging the defendants as on a writing obligatory, and the second as on a promissory note. Gragg pleaded separately to the first count, non est factum, and to the second, a plea in the same nature, denying the execution of the instrument. Whatley pleaded nil debet.

This was an action of -assumpsit in Mobile Circuit Court, by Garrow against Salles, for the price of a quantity of lumber. The plaintiff proved that he had lumber in the hands of one Kennedy, and that he had drawn an order for it in favor of the defendant, and that the defendant had received it under this order. The quantity of lumber received and its value was proved. The order was In writing, but was not produced.

This was an action of trespass to try titles, brought under the statute of 1821, by Hobart against Richardson, in Mobile Circuit Court, to recover possession of a section of land in Mobile county, and damages for the detention. A trial was had at February term, 1827, and a verdict found for the plaintiff for the land, and fifty dollars damages.

Samuel Smith was indicted in the Circuit Court of Bibb county, at the April term, 1828, on a charge of challenging one Daniel Williams to fight a duel.

On the trial of this cause in Franklin County Court, Miller, who was plaintiff below, produced the depositions of some witnesses taken by him on the 30th July, 1825 ; and offered to prove by one Wood, one of the Commissioners who had taken the depositions, that he and one Bruce, a justice, and also one of the commissioners, had taken the depositions in Florence; that they had sealed them up in an envelope with three seals, and written their names across the seals; that he…

Joseph Oliver declared against Alexander M‘Coll, in the Circuit Court of Conecuh county, in assumpsit. The declaration contained three counts, the first of which was special, setting out an instrument signed by M‘Coll, as follows: “On a final adjustment of the copartnership business between Alexander M‘Coll and Joseph Oliver, who have been engaged in the business of merchandize, and which copartnership was dissolved on the 1st of September, 1824.

Richard Perkins brought an action of trespass to try titles, in the Circuit Court of Madison county, against Alexander P. Jones, to recover possession of an undivided third part of a certain tract of land pi said county, which the plaintiff sued fir, under a deed from one Benjamin Perkins, who claimed a life estate in said portion as the husband of, and in right of his wife, who was a daughter of one Lewellen Jones, and entitled to one third of his estate.

This was an action of assumpsit, brought by the plaintiff in error, who was also plaintiff below in the County-Court of Madison county, against Eason, to recover the value of a parcel of cotton delivered by the former to the latter as owner of a cotton gin, and which was destroyed by fire. There was at February term. (827, a vei diet for the defendant.

Boardman, who was plaintiff below, brought an action of debt in the Circuit Court of Tuscaloosa, against Gore and Williams, onajoi®fand several note under seal, made by them to B. M. GaWer or bearer, and which was - assigned by Garner in writing, to one Ragsdale, and by Ragsdale to the plaintiff.. The defendants pleaded several separate pleas.

This was an action of debt brought in the Circuit Court of Greene county, by May against the plaintiffs in error, on a note for ,$160.

Parker was sued by Leek and Lambertson, in assump-sit, in the Circuit Court of Lauderdale. The declaration contained the common counts only. It appeared in proof that the plaintiffs below had become jointly and severally bound in a hail bond for the appearance of Parker, in a suit in North Carolina, and that the debt had been collected by an execution against them, which they had satisfied.

Jesse Edwards brought an action of assumpsit in the Circuit Court of Montgomery county, to recover of the ■appellant on a note as follows: “On or before the 25th December, 1825, 1 promise to pay Jesse Edwards, the just and full sum of four thousand pounds seed cotton, it being for value received of him, this 16th Octobor, 1823.

Hugh H. Rolston, as assignee of one Merritt, brought an action of debt in the Circuit Court of Jefferson county, against James G. Click, and also against John Click and Luther Morgan, as the surviving partners of the firm of John Click & Co. to recover on a note for 0696 73, dated in 1819, payable to Merritt, and signed “James G. Click”' and “John Click & Co.” Morgan who was charged in the declaration as a surviving co-partner of the firm of John Click & Co., pleaded on…

Edmund Randle brought an action of assumpsit in the Circuit Court of Dallas county, against J. Gayle, senior, to recover (§260 for certain articles sold .and delivered to him, by Randle, as executor of the last will of Willis Randle, and as part of bis personal estate; and obtained a verdict in his favor.

This was a bill in equity, filed by Harree M‘Whorler in the Circuit Court of Franklin county, in July, 1824, against Israel Standifer, Janies Standifer, and James Clemens.

John J. Bell and Anne S. Bell, his wife, brought an action of detinue in the Circuit Court of Franklin county, against Arthur S. Hogan, to recover twelve negroes claimed under a will, iri which a trial was had at the spring term, 1827.

This was a writ of error sued by Samuel Huff, to reverse a judgement rendered against him in the Circuit Court of Jackson county, at the April term, 182}', in favor of William H. Campbell.

William M‘Gehef, issued a notice, directed to John M‘Whorter, late sheriff of Jefferson county, and nil#; other persons ás his securities in office, to notify them that he would move the Circuit Court of said county at the September term, 1825, for judgement against them,* under the statute, for moneys collected by M‘Whorter on an execution in favor of the appellee against one Tarrant.

Robert Thompson commenced this and two other similar actions of debt, in August 1826, in Lauderdale Circuit Court, against Littleberry H. Jones, to recover on three several promissory notes made by him, J. R. B. El-dridge and T. Eldridge, to the plaintiff, on the 14th March 1822, each for $2100, with interest from the date at eight per cent, payable in one, two, and three years respectively.

<p>1, The power given to County Courts over estates of deceased pen sons, does not entirely divest chancery of jurisdiction; particularly where a matter peculiar to chancery is involved, in which case it takes jurisdiction of the whole subject.</p> <p>2. A bill should not be dismissed for improper parties, or for want of parties. Such defect is amendable at any time.</p> <p>3- A mortgagee of slaves files a bill to forclose against an estate reported insolvent; his preference being lost by a delay of thirteen years, chancery will call in all the creditors and make distribution.</p> <p>4. Where property is sold by an administratrix, subject to a mortgage, and bought by herself at an inadequate price, which mortgage is afterwards determined to have lost its lien, the sale will be set aside.</p> <p>5. Commissioners may be appointed to audit claims of creditors, and to state an account with the administrator; but sufficient notice to creditors must be given.</p> <p>6. A decree ordering the sale of property in the hands of heirs, must specify and identify it.</p>

This was an action of trover and conversion, brought by Spencer against Wright, in the Circuit Couit of Tuscaloosa county, to recover the value of a horse.

James and John C. Jackson, brought, in the Circuit-Court of Franklin county, an action of covenant against Noeland John C. Waddill, to recover on an obligation under seal, whereby they promised jointly and severally to pay to “Nathaniel P. Russel, bis heirs or assigns, the sum of two hundred dollars, to be discharged in good current bank notes” and which was assigned to the plaintiffs.

Harriett G. Pettigrew, an infant, by her guardian, brought an action of debt in Greene Circuit Court, against John Pettigrew, to recover a legacy’. The writ was agninstthe defendant without naming him as executor, and was endorsed to recover a legacy bequathed to her by her father, of whom the defendant was execut.or. The-declaration contained two counts.

A. M‘Gehee brought an action of trespass to try titles, in Greene Circuit Court, against S. Evans, to recover possession of certain land, and damages for the detention. The venue being changed to the county of Perry, the cause was there tried at November term, 1827, and aver-dict was.fonnd for the plaintiff, with six and a fourth cents damages.

Littleton Lecatt declared in the Circuit Court of Mobile county, in an action of trespass to try titles, against Alexander B. Smoot, to recover possession of certain premises in Mobile, called the Mobile Hotel, and damages for the detention. At a subsequent term, Isaac R. Nicholson, on his motion, was made a party defendant, on condition that he offered no evidence to prejudice the title and possession of Smoot.