Volume 1 — Stewart & Porter's Alabama Reports (1831–1834)

This was an action, under the statute, to try tire right-of property to certain slaves, which had been levied on, at the suit of the defendant ill error, as of the estate of one'Campbell.

This action was debt, brought by the defendants in error, in the Circuit Court of Mobile, to recover an amount of money, appropriated by the Mayor and Aldermen of that city to the defendants, as damages for injury donato their real estate, in widening a street.

This action was instituted in the name of Prewett,. for the use of Johnson, in the County Court of Clarke;' and was founded on a claim for money received by the defendant in his official capacity, as a magistrate.A judgment being rendered for the defendant below,, the case, on a bill of exceptions, was brought here and the questions of error arose on the opinion of the-Court below. • That Court decided, 1st. That Prewett, -though the nominal plaintiff,, could not be a…

Assumpsit, in the County Court of Monroe,' by Scott against llivers, to recover the amount of a promissory noto., Tho circumstances of the case appear fully in the opinion of the Court.

This case -wars submitted on a motion, to dismiss-the writ of error; and involved the correctness of the determination of the County Court of Monroe, in relation to an order off-setting ono judgment against another, which existed between the same parties, in the same Court. The questions decided appear in the opinion of the Court.

Scoggins brought the action of assumpsit against the plaintiff in error, in the County Court of Greene. The cause of action wTas a promisory note, executed by the wife of the defendant; on which the latter had writtenan acknowledgment. On demurrer to the declaration, judgment was rendered for the plaintiff, and the defendant by writ of error brought the case to this Court.

This case was brought by writ of error, from the Orphans’ Court of Clarke county; and raised the question, in this Court, of the validity of the will of one Clarke McGrew.

This was an action of assumpsit, on a promissory note, brought by Innerarity in the Circuit Court of Baldwin. The note bore date at Mobile, and was executed while that city was a Spanish province : it stipulated for the payment of interest after maturity; and the question raised, ivas as to what rate of interest-was legally chargeable thereon.

This action was debt in the Circuit Court of Franklin, and was founded on a promissory note executed by Felton, the testator ■ of Towns, to Bardwell, the administrator of Celia Guin. To the suit, the defendant plead the statute of limitations of six years : to which it was replied, that Felton, the testator, had executed the note in the State of North Carolina; and had not resided in the State of Alabama for the term of six years, next before the issuance of the writ.

This case originated in a bill, filed in Franklin Circuit Court, to enjoin a judgment at law. The facts as alleged in the bill, showed that in March, 1824, the complainant, together with one Thompson, had executed to Morris a bond for two hundred dollars; which Morris immediately assigned to Bell & Co. The consideration of the bond, consisted in the agreement of Morris to conduct, for the complainants, a house of entertainment.

In error from Lawrénce Circuit Court. This was an action of assumpsit, to recover of the defendant the amount of a note of hand, assigned By him to the plaintiff.

This, being one of several qui tarn actions, was brought by Canny before a Justice of tho Peace of Marion county, to recover of Briant, the tax collector of that county, the sura of twenty dollars, in each case, for not administering an oath to persons rendering in their list of taxable property.

This action was detinue in Washington Circuit Court, to recover a slave. Under the pleas of the general issue, and the statute of limitations, there was a verdict for the defendant.

Debt in Fayette Circuit Court. This was an action brought by Moore against Pe-den, to recover the amount of.a promissory note. The defendant below plead failure of consideration, payment, and set-off. During the progress of the trial, the defendant below moved the Court to instruct the jury, that if they believed the consideration of the note had failed to the full amount, except what had been paid, they should give a verdict to the defendant.

This action was brought by Boyd, before a Justice of the Peace of Pike county, to recover of Shaw the value of certain improvements on public land. There was a judgment for the plaintiff, and an appeal was taken to the Circuit Court'.

In error from the County Court of Marengo. In this case Atwood had obtained thirteen judgments against Craig, and others, ■ his sureties to a bond as constable. A certiorari was prosecuted by Craig and one of his sureties, to the County Court, which on hearing was dismissed, on the ground that all the defendants had not joined in the appeal. Exception was taken to this decision of the Court, and the same assigned for error here.

In error from Montgomery Circuit Court. ■ This action was debt, brought to, recover the amount of a judgment obtained in the State of Georgia, and also the amount of a promissory note. • The defendant plead nul teil record, and off-set. On the trial of the cause the defendant produced as a set off, notes of hand executed by the plaintiff to one Hoffman or order, which the plaintiff moved to exclude from the jury, on the ground, that the indorsement was not proven.

This was an action of trover, in Blount Circuit Court, to recover the value of a slave, brought by Robinson &.wife, against Mary Hardwick, the wife of George Hardwick, deceased. Nancy Barron, the sister of Hardwick, had deposited with him five hum dred dollars, to he placed at interest; or to purchase a negro, for the use of his daughter Kesiah, now the wife of Cornelius Robinson.

In this case, the plaintiff in error, together with the defendants, applied to the County Court of Montgomery county, for letters of administration on the estate of James Brown. Brown had died intestate, leaving neither widow, or child. Hay & Germany were the husbands of two of the sisters of Brown, and the plaintiff was the father.

This was a bill in Chancery, filed in Lawrence Circuit Court, to enjoin a judgment at law.

In error from Mobile Circuit Court. In this case John B. Hazzard, Cashier of the Tombecbee Bank, had levied an attachment on the estate of Daniel Stowe, and summoned Richards as guarnishee, to answer what money, goods or effects, &,c. of Stowe, he had in possession.

Baylor moved the Circuit Court of Jefferson county, to direct the sheriff to enter a credit on an execution subsisting against the plaintiff in favor of the defendants — and further, to compel satisfaction of the judgment entered of record. No other notice was given to the parties, than an entry on the motion docket. The Court overruled the motion, and the opinion of the Judge being excepted to, was here assigned as error.

In this case the plaintiff in error, as administrator of George Wilkerson, deceased, moved the Circuit Court of Montgomery county, for an order to perfect a judgment rendered some time before, in favor of his intestate, against the defendant. George Wilkerson had brought his action against Goldthvvaite to recover the amount of a bill of exchange. There was a demurrer to the evidence, and on that demurrer a judgment was rendered for the plaintiff.

In error from Mobile Ciruit Court. This was an action of assumpsit. Toulmin, the defendant in error, had undertaken, for a stipulated price, to build the walls of a brick house for the plaintiffs. Shortly after tlieir completion, the house fell, and the present action was brought to recover the amount contracted to be paid for the work. The witnesses examined on the trial, assigned different reasons for the destruction of the house.

• The Tombeckbee- Bank obtained a judgment in the Circuit Court of Washington against several.parties among whom were the defendants in error. The Clerk in entering up the judgments, drew out one-in proper form and at length, and entered the rest in short, referring to the first. The judgment against the defendants was in short, and on. it, execution had issued.

Travis brought his action of assumpsit in Mobile Circuit Court, to recover of Allen the sum of one hundred and' sixty eight dollars and. thirty two cents. Allen was the agent, or consignee of the owners of the ship Amelia, on which vessel Travis had shipped sundry goods from New York to Mobile. On the passage, the goods became damaged, and Travis was about calling on the Port Wardens to survey the goods, in order to charge the owners.

Error from .Mobile Circuit Court. This was an action of assumpsit, to recover the amount of a bill of exchange from Torbert, the plain-tiíFin error. The action was- commenced in Mobile-Circuit Court on the 22dr'January, 1828. Torbert plead the statute of limitations in two pleas- — First that he had not undertaken, &o. within six years, and second that the supposed .action had not accrued &c, within six years.

This was an indictment of two counts, in Dallas Circuit Court, for an assault with intent to kill and murder, and for a common assault and battery. On the first count, the prisoner was acquitted, and on the second convicted, and fined. Two points were reserved on the trial for the determination of the Supreme Court.

This was a bill in chancery filed in Madison Circuit Court, against William Moore the executor of the last will and testament of Uriah Bass. The case presented the following facts. Uriah Bass, by his last will and testament amongst other devises, bequeathed to Ann Green, his daughter, two quarter sections of land. The land in question had been purchased, by Bass, from the United States, and one fourth of the purchase money paid.

<p>The opinion of the Court., in this ease, shows all the points arising, in its decision.</p>

’ This was an action of assumpsit, County Court. The bill of exceptions, stated, that the cause, the Court below permitted to the jury, of the admission of defendáis she had purchased a portion of the goods Also, that the Court, having given an erroneous charge to the jury, and the same being excepted to by plaintiff's counsel, the jury were recalled, and the charge retracted.

In error from Dallas Circuit Court. This was an action of debt instituted by Cargill to recover the amount of a note given for the purchase of a slave;. which having been levied on, as of the the estate of one Outlaw, it was proposed by the defendant, to the agent of the plaintiff, that if the latter would execute a bond of indemnity, the former would defend the claim ; which having been declined, the slave was sold.

In error from Wilcox Circuit Court. This action, being assumpsit, was brought to recover the amount of a promissory note. The note was executed by Evans to the defendants in error for the rent of eighty acres of land, including a ferry. The County Court had granted the privilege of keeping the ferry to another individual, whereby the defendant, Evans, had been deprived of its income, which was proved to be worth one.hundred and fifty dollars a year.

In error from Madison County Court. So much of this case as involves the point decided, shows that Lewis for the use of Sanders, moved' the County Court of Madison county, for an order directing the sheriff to retain certain fees charged by him as attorney for Long, out of money then in the sheriff’s hands, belonging to the plaintiff in error.

Hudson brought an action of assumpsit, in Tuscaloosa County Court, against Tindall, the executor of Payne, to recover for work and labor. Tindall filed the plea of general issue, and a notice of set-off. In support of the set-off, the defendant produced a note of hand, executed by the plaintiff, to one Lewis Hudson, and by the latter endorsed in blank.

This was assumpsit, brought in Dallas Circuit Court, to recover of the plaintiffs in error, the sum of one hundred dollars.

<p>A judgment by default, before filing a declaration, is error.</p>

In error from Lawrence Circuit Court. In this case Taylor commenced an action of as-sumpsit against Branch, as endorser of a bond, which had been executed by one Campbell. The declaration averred, “ that the instrument had been duly-presented for payment,” <&c. and the evidence disclosed that the demand was not personal on Campbell, but had been made at his late residence a day or two after he had left it.

<p>lEn order to bring a cause into the app~iIa~e Coert by error, all the partes must join in the writ-and it is competent for one to use the name of hie co-defendant, without his consent.</p>

In error from Lauderdale Circuit Court. This was an action of assumpsit, and was founded on an agreement in writing.

In this case, which was an action for malicious prosecution, in Dallas Circuit Court, the declaration recited the particular felony under which the plaintiff had been prosecuted, but did not set out the affidavit at length. On the trial, the Court excluded the affidavit and warrant from the jury, on the ground of their not being conformable to the averment in the declaration.

In error from Jefferson Circuit Court. This cause originated in the trial of the right of property. An execution in the name of Jonathan Steele against the goods and chattels of John Kil-lough, was levied on certain property, claimed by Allen Killough, who founded his claim on a bill of sale, with condition of defeasance, or mortgage, made by said John Killough to Allen Killough, dated 16th March 1827; which bill of sale was not recorded.

This was an action of assumpsit, in Lauderdale County Court, brought by the-indorsee of a promissory note against the indorser. It was in proof that the plaintiff searched for the maker of the note, in order to make a- demand of payment, but that coming in sight of his house, he found it closed ; and was told, that he had left the country. Plaintiff made no personal application at the house, and desisted from further search. Two points were assigned for error in this Court.

This was an action of debt, brought in Madison County Court, against the plaintiffs in error, to recover the amount of a promissory note. The note was payable to the “ Nashville Bank,” and the declaration thereon was in the usual’form, but contained no special averment, that the Bank was a body corporate. After a demurrer, which was overruled, the defendants, below,, relied on the pleas of nil debet and nul tiel corporation. On the issues, a verdict was had for the plaintiff.

In error from Morgan Circuit Court. This was an action of assumpsit, instituted by Gragg, as next friend of Ellis’ heirs, to recover rent for the use and occupation of a tract of land, of which Ellis died deceased.

In error from Madison Circuit Court. Walker recovered „of Drumgoole a judgment for three hundred and twenty four dollars and thirty four cents in the Madison County Court. At a subsequent term, Taylor, who was alleged to owe Drum-goole three hundred dollars, was summoned as garnishee. The summons had a deputation indorsed on it in the name of the sheriff, appointing one Bul-lington to execute and return it. It was so executed and returned.

This was a motion, submitted on the part of the plaintiffs, praying that William Crawford might be made a party to the above suit, as representative of the estate of Shields. A sci. fa. had before issued generally and had been returned, executed on Crawford.

The plaintiff in error brought an action of debt in Limestone Circuit Court, against the defendant, to recover the amount of a promissory note. The defendant plead in abatement, that the charter of the plaintiff had expired, and that the “ Huntsville Bank,” in its corporate capacity, could not maintain, an action. On this issue there was a verdict in favor of the defendant. This point, as also others, noticed in the opinion of the Court, were here assigned for error.

In error from Limestone Circuit Court. This suit was commenced by Rogers & Sons,' by a bill in chancery, charging a fraudulent transfer of estate from John W. Smith, a judgment debtor of the complainants, to Joseph A. Smith.

This important cause arose on the conviction of Caldwell for the murder of a Creek Indian. The crime*was committed on the lands of the Creek nation, the Indian title to which had not, at the time of the commission of the offence, been extinguished.

This was an action of assumpsit, and was brought to recover the amount of a note of hand, executed by the defendants in error to the plaintiff. The note had been taken up by the substitution of notes on other persons, which the defendants had indorsed.

This was a proceeding in Madison Circuit Court,, to try the right of property in certain slaves, levied on as the estate of Skelton Standefer, to satisfy subsisting executions in favor of the defendant in error. So much of the extensive testimony as related to the decision in this cause, shewed the following facts.

This was a bill in Chancery, filed in Madison Circuit Court, by Lamkin against Bell. One John W. Bell having taken out writs of error on several judgments obtained against him, Lamkin and Bell, together with, two other individuals, became his sureties, to the writ of error bonds. John W. Bell then executed to Lamkin and the two other sureties, a deed of trust of several slaves for securing the payment of the judgments in the event .of their affirmance.

Cargill and Goodwin were recognised by,a Justice of the Peace, in a bond,, conditioned that Cargill made personal appearance at a term of Bibb Circuit Court, ensuing the date of the bond, and kept the peace towards one Ward, and another. The .condition set out no particular offence to have been committed ; and it did not appear from the record that the prosecutor appeared at the return term, or that any measures were then taken in the cause.

This was a motion against Barton and others, for the failure of Barton to pay over money collected by hi in as sheriff, on an execution in favor of the Bank. The record did not disclose that any evidence wás submitted to the Court below, to shew who were the sureties of Barton ; which was assigned as error- to this Court.

In error from Bibb Circuit Court. Sundry executions against Thomas Carlton, in favor of the defendant in error, being levied on certain property, the same was claimed, under the statute, by the plaintiffs. It was assigned for error in this Court, among other matters noticed in the opinion, that the Court below admitted the executions under which the property was seised, to go to the jury, without proof of the judgments.

In error from Tuskaloosa Circuit Court. Patrick’s representatives brought .an action of debt against the plaintiffs in error, to recover the amount of a sealed note. The instrument was made payable to Patrick, in his life-time; and when produced iu evidence, on the trial,, had two lines drawn through the body of it; which, it was contended, was prima facie evidence of its being paid — and so, not evidence of the demand, against the defendants.

In error from Marengo Circuit Court. This case originated from a notice, served on Barton, late sheriff of Marengo county, and his sureties, that a motion would be submitted to the Circuit Court of said county, on a day therein named, for judgment and award of execution for a certain sum of money collected by the said, sheriff in a case wherein said Pecks were plaintiffs, and one John Craig defendant.