Volume 10 — Alabama Reports

Writ of Error to the Circuit Court of Mobile. This is a suit for forcible entry, commenced before a justice of the peace, by Horsefield, against Adams and Knapp, and by them removed to the Circuit Court by certiorari, At the trial before the justice, witnesses having been examined, the defendants offered in evidence the record of the suit Doe on the demise of Walker v. Bebee, Etter, Brown and Hall, the writ of possession under it, the sheriff’s return by which he put Daniel…

This bill was filed by the defendant in error, against Gabriel Jones, and charges, that Jones sold to one Matthew Talbot, certain parcels of land, describing them, at $15 per acre, amounting in all to the sum of $16,445, and conveyed the same to him with warranty, he executing his notes for the purchase money. That the purchase was made by Talbot, for complainant, who was to pay the purchase money, and upon the payment to receive a conveyance from Talbot.

Writ of error to the County Court of Mobile. This was a suit commenced by the defendant in error before a justice of the peace, and removed by appeal to the County Court. On the trial, both the plaintiff and defendant were sworn to testify under'the act of 1839, though the amount in controversy exceeded twenty dollars.

Writ of Error to the Circuit Court of Perry. Sex. pa. by Massey against the Walkers, as the bail of one David Walker. The sci. fa. issued on the 20th February, 1845, and the defendants not appearing, a judgment was rendered against them at the appearance term, for the amount of the judgment against their principal, without interest.

The Judge of the County Court of Mobile, appointed B. B. Breeden, W. Magee, and W. H. Platt, commissioners to examine the books and vouchers of the county treasurer of Mobile county, for the year 1845, and issued a commission to them for that purpose, who returned thereon, that the plaintiff in error, the county treasurer, declined to permit the examination to be made.

Writ of Error to the Court of Chancery sitting in Russel. The plaintiffs in error alledge in their bill, that the city of Columbus was first incorporated by the Legislature of the State of Georgia, by the name of the Xntendaut and Commissioners of the Town of Columbus, and “vested with certain powers, privileges and immunities,” among which was the right to hold real estate, to construct a bridge across the Chattahoochie, at or near ihe city, and have the exclusive right of…

Writ of Error to the County Court of Mobile. Assumpsit by Faires against Lodanc for use and occupation. At the trial, on the issue of non assumpsit, a witness stated he was present when the plaintiff and defendant entered into a contract for the rent of the upper saloon of the Mobile Theatre, during the Theatre season. Lodanc agreed to rent the saloon from Faires and pay him f300 for the season.

ActioN by the defendant in error against the plaintiff in error, as captain of a steam boat, to recover the penalty of f 50 for making a trip with the steam boat Eureka, without a principal engineer, certified by the board of engineers. The plaintiff made a short statement of the cause of action, in the county court, to which the defendant demurred. No judgment appears to have been rendered on the demurrer, but atrial was had before a jury, on the plea of not guilty.

This was a motion for the retaxation of costs, at the instance of the defendant in error. From a bill of exceptions in the record, it appears that the plaintiff was summoned as a witness in two causes lately pending in the Circuit Court of Mobile, at the suit of the appellee, one against Jos. Cain and the other against B. C. Gallop; in each of which the sum of sixty-nine dollars was taxed for the appellant’s attendance as a witness.

Writ of error to the County Court of Mobile. COVENANT by A. A. and A. J. Girard, as heirs of Edward Girard, deceased, against Masterson, on a lease executed by Masterson to the decedent, in his life, for a tenement in the city of Mobile, reserving a monthly rent of $25, from the 1st July, 1839, to the 1st July, 1844.

Bill by the plaintiff in error, for an injunction against an alledged nuisance. The bill charges, that the complainant is the owner of a lot in the town of Tuskegee, on which is a dwelling house, worth $600, which he occupies with his family.

Writ of Error to the Court of Chancery sitting at Mobile. The plaintiff in error filed a bill for the foreclosure of a mortgage, and the sale of certain slaves, which the defendant, Taylor, had conveyed to it for the security of a debt.

PetitioN by Roberts and wife, praying that Weatherford, as the administrator cum testamento annexo of Charles Toney, deceased, might be decreed to set apart and pay over a specific legacy given by his last will. The administrator resisted the application on the ground the legacy was adeemed.

Motion to quash an execution, which had issued upon a forfeited replevy bond, in a suit commenced by attachment. The bond bears date 1st December, 1836, and was returned forfeited, by the sheriff, on the 27th June, 1838. The court quashed the execution, from which this writ is prosecuted. The forfeited bond was taken by the sheriff, on the 1st December, 1836, and at that time was properly made payable to the sheriff.

Writ of Error to the Circuit Court of Randolph. This was an action of assumpsit, at the suit of the defendant in error, as the endorsee of a promissory note, by which the plaintiff, on the 7th April, 1843, promised to pay to Davis E. Gresham, $632 50, on the first day of December thereafter. The cause was tried by a jury, who returned a verdict in favor of the plaintiff below, and a judgment was rendered accordingly.

Writ of Error to the Circuit Court of Perry. Assumpsit by the company against Duke, to recover certain tolls. The declaration contains two counts, one special, setting out the manner of incorporation, the right to tolls under the act, ¿cc. &c. — the other general, merely referring to the acts, without setting out how the tolls became due. The defendant demurred separately to each count, and when his demurrer was overruled, pleaded — 1. Nul tiel corporation. 2. Non assumpsit.

Rule by the defendants in error, against the plaintiff, as sheriff, suggesting that by due diligence he could have made the money on a ft. fa. of the plaintiff, against one Jeremiah M. Friou, which was returned on the 1st February, 1840.

Writ of Error the County Court of Mobile. The plaiaintiif in error as the treasurer of Mobile county, caused a notice to be served on the defendant, informing him thathe would move the county court for judgment against him for $5,305 28, being the amount of county taxes collected by him in 1842. On the 25th November, 1844, the motion was accordingly submitted, and continued until the 21st January, 1845, at which time judgment was rendered for $2,134 33.

Assumpsit by Carpenter & Watson, as partners, against Cunningham for work and labor. The defendant pleaded — 1. Non-assumpsit. 2. Payment, 3. Set off. 4. That the several promises, if made at all, were made to and with Watson, and none other. The plaintiff replied to the three first pleas, and demurred to the fourth.

Debt, by defendants in error, against plaintiff in error, on the following instrument: $1,766. On or before the 1st January, 1845,1 promise to pay'S. S. Simmons, or bearer, the sum of seventeen hundred and sixty-six dollars, which may be liquidated in cotton of a fair quality, at seven cents per lb., for value received; to be delivered at Gaston landing, on the Alabama river, 13 Dec. 1842. E. Love. The declaration is in the usual form, as upon a money demand.

Writ of Error to the Circuit Court of Dallas. The defendants in error, by the name of William Hudson and Sylvester J. James, discontinuing their suit againsl Robert J. Lawrence, declared against George W. Gayle and Matthew Gayle, in debt.

Writ of Error to the Court of Chancery for the 2st District. The bill in this case was filed by Gibbs & Labuzan, against Waller, in the first instance, and afterwards it was amended, by making one Williams a party defendant, but without seeking any relief against him. The case made by the bill is briefly this, to wit: Waller had obtained a judgment against one Lunsford, at the July term of the county court for the county of Greene, in the year 1840.

Ejectment by the plaintiffs, against the defendant in error, -for a tract of land in Russell county. From a bill of exceptions it appears, that the plaintiffs deduced their title from a deed of mortgage, executed to them by Jesse B. Reeves, dated the 1st January, 1842, to secure the payment of $281 87, due sixty days from the date of the mortgage. This deed was acknowledged before a notary public on the day of its date, but was not recorded until the 10th July, 1842.

Writ of Error to the' Circuit Court of Greene. This was an action of assumpsit at the suit of the plaintiff in error.

Assumpsit by Lewis & Wallace against Peck & Clark. The declaration contains the common counts only, to which' the defendants pleaded the general issue.

Writ of Error the Circuit Court of Mobile. Motion against sheriff and. his sureties, for failing to return an execution. The notice is addressed to Edward T. Broughton, sheriff of Monroe, and John R. Davis, William Robinson, and Samuel Bozman, his securities, for the faithful performance of his. duties as said sheriff.

Writ of Error to the Court of Chancery sitting at Livingston.

On the final settlement of the estate of James H. Gaston, by David Boyd, executor, an exception was taken to one item of his account, claiming to be allowed the sum of $362, loaned to one Hall, on a note executed by one Holt, and secured by mortgage from Holt to Hall. At the settlement, the proof in relation to this item was, that Hall borrowed $300 in 1841, from the executor, for which he gave his note at twelve months.

The bill was filed by Kennon Harris, against Samuel Hughes, who died during the progress of the suit, and it was revived in the name of W. Brandon, his administrator. The bill alledges, that the complainant was indebted to the firm of Bierne & Patton, who had a judgment against him.

Writ of Error to the Circuit Court of Dallas. This was an action of assumpsit at the suit of the plaintiffs upon a promissory note made on the 11th July, 1840, by L. M. H. Walker, and the defendant, by which they promised to pay the plaintiffs five hundred dollars on the 1st of March, 1841. Process issued against both the makers, but was returned “ not found,” as to the former, and the cause progressed against the defendant only.

Ejectment, for the recovery of a lot of land in the city of Mobile. The plaintiff counts on the several demises of Solomon Andrews, E. L. Andrews, Joseph J. Andrews, and Andrews & Brothers, consisting of the two first named and Z. Andrews.

Writ of Error the Circuit Court of Limestone. George B. Wilkinson, executor of John B. Wilkinson, applied to the orphans’ court for a final settlement, and filed his accounts and vouchers, &c., and upon the settlement it was ascertained by the court, that there was in his hands for distribution, the sum of $3,577 85, which was decreed as follows: to the widow and her present husband $1192 62, to G. S. B. Wilkinson, Reuben Wilkinson, John G. Wilkinson, Samuel B. Wilkinson, W.…

This was a scire facias on a bail bond executed by Daniel E. Harper, as principal, and the defendants in error as his sureties, in a suit prosecuted by the plaintiff in error, against the former.

Writ of Error to the Court of Chancery for the first District. Bill by the Bank to foreclose a mortgage executed by one Elliott for certain real estate, to secure certain notes described in the bill. Held: that he took nothing by the tax sale, and directed the mortgage and notes to be referred to the master to taire an account, &c. The master’s report, after taking the account, was excepted to, and the exceptions overruled in the master’s office, and no appeal taken.

The bill was filed in June, 1841, by the defendants in error, creditors of William R. Meyer, against R. B. Harrison, to charge him as the trustee of Meyer. The bill sets out the various demands, the evidences of which are appended to the bill as exhibits.

Writ of Error to the Circuit Court of Sumter. The plaintiff in error declared against the defendants in assumpsit, for work and labor done, for money lent and advanced to, and money had and received by the supposed testator in his lifetime. Issues were joined and the cause submitted to a jury, who returned a verdict for the defendants, and judgment was rendered accordingly.

Writ of Error from the Orphans’ Court of Greene. The errors complained of in this cause, are supposed to arise out of the proceedings of the orphans’ court upon the final settlement of the estate of Gabriel Long, at the instance of Benjamin Long and Bryan Watkins, the qualified executors. So much, and such parts of the record as seem necessary to the correct understanding of the errors assigned, will be recited.

Assumpsit, by the defendant in error, on the following note : $150. We do therefore acknowledge to pay, J. Gill, or bearer, the just sum of one hundred and fifty dollars, for his services in the case pending in the circuit court, betwixt Scott and W. Anderson, concerning Jonas Jones’ property, when decided in said court of Sumter county. If said Scott loses the case, we only pay half the above amount. 8 October, 1842. D. Dawkins, A. Scott.

This was an action of assumpsit at the suit of the plaintiff in error, as the indorsee of David Stone, upon a promissory note to the latter, made on the 24th April, 1833, by the defendant and John T. Brooks, Littleberry Strange, S. W. Mitchell, Edward Bird and Julius N. Brooks, for the payment of the sum of $6,350 46.

Writ of Error the Circuit Court of Dallas. Assumpsit by Cuthbert & Stanly v. Walker, who was sued in the first instance with one Bowie, but the latter not being served with process, the suit was discontinued as to him, when the declaration was filed.

Assumpsit by the defendant, against the plaintiff in error. The suit was commenced by attachment, the plaintiff making affidavit, that the defendant was indebted to him in the sum of fourteen hundred dollars, and had not, within af-fiant’s knowledge, sufficient property within the State of his residence, to satisfy the debt. Both parties were non-residents. A declaration was filed in the following words.

Writ of. Error to the Circuit Court of Tuskaloosa. This was an action of assumpsit, at the suit of the defendant in error, against the plain tiff, as indorser of a promissory note, by which the maker, on the 18th May, 1842, promised to pay to M. W. L., on the first day of January, 1843, four hundred and eighteen dollars and fifty cents.

Claim interposed by Lockhart to certain slaves levied on as the property of one Hopkins, on the 7th of January, 1843, at the suit of Wyatt. At the trial, the claimant made title to the slaves in controversy, under a deed executed by Hopkins on the 1st November, 1841, conveying the said slaves, with other personal and real estate to him upon trust. The terms of this deed, and the trusts created by it, are set out in the report of Graham v. Lockhart, 8 Ala.

The indictment is as follows: The grand jurors, &c. upon their oaths present, that one Christopher Kyle, late of the county and State aforesaid, did, on the 25th September, 1843, in the county aforesaid, aid and assist one Ellory Neighbors, John Q,.

Writ of Error the Circuit Court of Sumter. This was an action of debt at the suit of the defendant in error upon a bond to keep within the prison limits of Sumter,, executed by the plaintiffs and James M. Cade. The cause was tried by a jury, who returned a verdict for the plaintiff, for $314 86, and judgment was rendered accordingly.

Writ of en'or to the County Court of Barbour. Infoematxon by the State tit the relation of L. S. Cato and E. C. Bullock, against Ledbetter, as clerk of the county court of said county, for failing and neglecting to perform the duties of his office. The charges consist of eight specifications, which may be thus briefly stated: 1. In failing to keep in regular files the papers belonging to his office. 2.

Assumpsit, by the defendant against the plaintiffs in error.

Writ of Error to the Circuit Court of Franklin. This was an action of trespass at the suit of the.defeudaijt in error, .brought as well to fry titles to a, tract,of ;la,nd.. situate in-the county of Franklin, as to recover damages fpr fts occupancy. The cause was .tried upon the general, issxie^ and a verdict returned for the plaintiff, assessing .the .damages by reason of the defendant’s possession since the-13th.

Writ of error to the Circuit Court of Dallas. Assumpsit, by White, against Kornegay, for'breach of warranty of a slave.

Assumpsit by the defendant, against the plaintiff in error, on a promissory note, negotiable and payable in bank. From a bill of exceptions found in the record, it appears, that the defence set up by the defendant was, that a judgment was obtained against him, by the State Bank, as a debt- or of Caraway, by process of garnishment, for the amount of the note sued upon, which judgment he had satisfied.

This was an action of debt at the suit of the defendant in error, on a bill single executed by the plaintiff ’s testator on the 25th March, 1841, for the payment of $1,054 75, one day after date. The defendant below pleaded — 1. Nil debit. 2. The statute of limitations. 8.

Writ of error to the Circuit Court of Perry. Detinue, by Hodge, against Wyatt & Houston, to recover a slave.

Motion by the defendant,- for a rule oh the plaintiff, to show cause, why the writ in this cause should not be dismissed.

This is an action of trover, at the suit of the defendant in error, to recover damages of the plaintiff for the conversion of one pair of osen and an ox-cart. The cause was tried by a jury, but on what plea the record does not discover. On the trial the defendant below excepted to the ruling of the court. It is shown by the bill of exceptions, that the plaintiff proved property in himself, and a conversion by the defendant.

Writ of error to the Circuit Court of St. Clair. Supeesedeas sued out by Boyd against Shearer, to stay proceedings on certain executions. The petition asserts, that at the spring term 1831, Shearer, as the indorsee of Benjamin Smith, recovered a judgment against one Joel Chandler, for $248 56, besides costs; and at the same time said Smith for the use of Shearer, recovered another judgment against said Chandler, for about $523 23.

This bill was filed by George Huggins, administrator de bonis non of George W. Hilliard, and George H. Hilliard, an infant, by his next friend, sole heir at law of George W. Hil-liard, as complainants, to foreclose a mortgage executed to G. W. Hilliard, by Elisha S. Bebee, and G. W. Clark, on a parcel of land in Mobile, to secure the payment of a debt due to the deceased.

Writ of error to the Circuit Court of Mobile. This was an action on the case by the defendant in error, against the plaintiff, to recover damages for his neglect to give notice to Thomas G. Newbold, that a promissory note made by Jeremiah Findlay and John Cody, and indorsed by New-bold, Andrews, and Fontaine & Freeman, for the payment of $741, on the first and fourth day of January, 1839, had not been paid by the makers at maturity.

Writ of error to the Circuit Court of St. Clair. Claim interposed, by G. S. Massey, to a slave levied on by attachment, as the property of John Massey, at the suit of Walker. At the trial, the plaintiff offered to read to the jury, as evidence, the note upon which the attachment was sued out, and at the same time offered to read the writ, declaration and judgment in the suit against John Massey.

Writ of Error to the Circuit Court of Lowndes. Tbial of the right of property, between the plaintiff in error as claimant, and the defendant in error, plaintiff in execution. Upon the trial, the plaintiff proved the levy of an execution in his favor, against Mary A. Sally, on two slaves, which had been allotted to the defendant in execution, upon the division of her father’s estate, in 1837 — and went to the possession of her guardian.

The facts of this case, so far as necessary to the understanding of the opinion of the court, may be thus stated. A bill of exchange was drawn by E. C Walker, in favor of James Aber-crombie, on Gideon Riddle, by whom it was accepted, and indorsed first by the payee, secondly by Zimri Madden, and thirdly by David Conner.

Motion by Garrett, to enter satisfaction of a judgment obtained^ against him by Huie. On the hearing of the motion, the facts were these, to wit : At the fall term, 1838, judgment was entered for Huie against-Garrett, forf 1620 19. In 1840, one Marvin, as the attorney of Charles Dewey, sued out an attachment against Huie, to which suit Garrett was summoned as a garnishee.

The plaintiff in error was cited by the orphans’ court of Autauga, to settle his accounts as guardian of the defendant in error, and failing to appear, the Judge of the orphans’ court proceeded to state the account in his absence, and cited him to appear at a succeeding term, and file his accounts and vouchers. He appeared accordingly, and filed his accounts and vouchers, and the court proceeded to a settlement, and rendered a decree against him for $2,401 58.

Writ of Error to the Circuit Court of Chambers. This was an action of assumpsit, a-t the suit of the plaintiffs in -error against the defendant, for money had and received; for money paid, laid out and expended; for money paid by plaintiff to the defendant, by mistake, in a settlement previously had between them; and upon an account stated.

Writ of Error to the Court of Chancery for the Eighth District.

Writ of eri;or to the Circuit Court of Barbour. Motion by the plaintiff in error, against the defendant in error, as sheriff, for failing to make the money on. an exe* cution, which by proper diligence he could have made. The execution is. alledged t.o have come to the hands of the she* riff on the 27th May, 1841, and notice was given that the motion would be made on the third Monday of September, 1841.

Writ of Error to the Court of Chancery sitting in St. Clair. The defendant in error exhibited his bill, setting forth that he made a wager in the year 1840, with the plaintiff, upon the result of the presidential election, then pending between Martin Van Burén and Wm. H. Harrison.

Writ of Error to the Circuit Court of Barbour. Claim of property interposed by Spear, as trustee for his wife and children, to a certain slave levied on as his individual property, by virtue of a writ of fi. fa. in favor of Walldey.

Assumpsit by the defendant’s intestate, against the plaintiff’s intestate. The declaration contains only the general indebitatus count, for work and labor, during the year 1840, as an overseer.

Writ of error to the Orphans’ Court of Greene. The plaintiffs in error presented their petition to the judge of the Orphans’ court, setting forth that Henry S. Mason departed this life in September, 1843, leaving the female petitioner, Catharine E., his widow, and three infant children, to-wit, Sydney, a son, aged about seven years, who died shortly after his father, a daughter named Josephine, aged about five, and Henry, a son, about two years old.

Writ of error to the Circuit Court of Macon. MotioN, by Kelly, to direct the clerk to retax the costs of witnesses in this cause. It appeared that certain witnesses were summoned by both parties, and claimed compensation for, and proved their attendance against both. The clerk taxed the attendance as proved m the bill of costs.

MotioN by the Bank for judgment, on a bill of exchange against the defendant, as drawer, payable at the Bank of Louisiana, New Orleans. Judgment in the usual form, for f700-debt, $210 damages, at the rate of thirty per cent for non-payment, and $22 16 damages by way of interest for the detention of the debt, together with the costs. The defendant prosecutes this writ, and assigns for errror — 1.

Writ of Error to tire Court of Chancery sitting in Chambers county. The defendant in error filed his bill, setting forth that in the year 1837, he employed William Richards to purchase for him, in the land office at Montgomery, a tract of land known and described as fraction C, of section thirty, in township twenty-four, of range twenty-five, situate in the county of Chambers, and containing 36 60-100 acres.

Writ of Error to the Circuit Court of Russell. Assumpsit, by Ann Palmer, for the use of Jesse A. Palmer, against Severance & Stewart, as the joint makers of a promissory note. At the trial, it was proved the note was given for the loan of money at usurious interest, and that the principal 'sum had been paid previous to the commencement of the suit.

the Circuit Court of Greene. Trespass to try title, by the defendants, against the plaintiffs in error, to eighty aeres of land in Greene county.

Writ of Error to tlio Circuit Court of Sumter. On the first day of August, 1843, a writ of fieri facias was issued from the county court of Sumter, at the suit of the defendants in error, against the goods and chattels, &c. of M. Abney, and levied in November following, by the sheriff of that county, on a negro man named York, who was claimed by the plaintiff in error, and bond given to try the right, pursuant to statute.

Writ of error to the Circuit Court of Marengo. AotioN of detinue by Young and McDowell against Du-bose to recover a slave. At the trial, the plaintiff made title under a deed of trust, conveying the slave to them for certain purposes, executed by Samuel D. Carter, on the 3d of October, 1838. The deed also conveyed land, and was acknowledged on the day of its date, before a justice of the peace.

This was a suggestion by the defendant in error, against the plaintiff in error, as coroner, that he could by due diligence, have made the money on an execution, against one Peter Usury. An issue being made up, the plaintiff produced a writ of fieri facias, corresponding with that in the suggestion, except that in the suggestion, the defendant was described as Peter Usrey, and in the fieri facias he was called Peter Usury.

Writ of Error to the Circuit Court of Mobile. On the 2d day of December, 1842, a notice in usual form, was addressed to J. H. Walker, George Walker, and Thomas Andrews, informing them that the county court of Mobile would be moved for judgment against them, as the maker and indorsers of a promissory note, particularly described, at the term next thereafter to be holden, &c. This notice was executed by the sheriff of Lowndes on the two first named individuals, and “John…

Assumpsit by Petty against the Walkers, on a promissory note, dated 23d February, 1839., The pleas do not appear, but the parties in this court consent that the cause went to the jury on an issue upon the replication per fraudum to a plea of bankruptcy. At the trial, the plaintiff read to the jury a notice served on the defendants, stating that their certificate of bankruptcy would be impeached for fraud, on the following grounds, viz : 1.

Writ of Error to the Circuit Court of Randolph. Motion by the defendant in error, against the plaintiff in error, as coroner, for failing to make the money on a fieri facias, which came to his hands against Peter Usury. contended, that as the coroner proceed» ed upon the writ, and made aievy, he was estopped from af» firming that it was not directed to him.

Writ of error to the Circuit Court of Benton. This was an action of assumpsit at the suit of the plaintiff in error, upon a promissory note made by the defendant on 3d November, 1841, by which he promised to pay to the plaintiff, the sum of five hundred dollars, on the 25th December, 1842. The cause was tried on issues joined upon the pleas of — 1. Non assumpsit. 2. Want of consideration. 3. Failure of consideration. 4. Payment. 5. Set off.

Writ of error to the County Court of Mobile. Dbbt, by Chaudron v. Duval. The declaration contains several counts, of which the first is in these terms, to wit: — • “ For that at an orphans’ court of said county, held on the 15th April, 1843, that day having been appointed for an allowance and settlement of the accounts of the said plaintiff, as guardian of the said defendant; and the said plaintiff, and the said defendant, then of mature age, appearing in said court.

Dallas. Detinue by the defendant in error, against the plaintiff in error, to recover a female slave named Susan. Upon the trial of the cause it appeared, that the defendant had intermarried with the daughter of the plaintiff, and that the slave in question, with two others, were sent home to the defendant, about the 25th January, 1841, when he commenced housekeeping; and the question was, whether this was an absolute, or only a qualified gift of the slaves.

Writ of Error to the Court of Chancery sitting in Dallas. Held: either by the vendee or Mrs. Jones, under a secret trust for Geo. J. S., or John Y. F., or their families.

Writ of error to the Circuit Court of Tuscaloosa. Claim of property interposed by Smith, to a slave levied on by afi.fa. at the suit of Webster against one Avery. At the trial, the plaintiff offered evidence, tending to show that Avery, the defendant in execution, remained in possession ot the slave in controversy for three years, so as to make it subject, under the statute of frauds, to his debts.

<p>1. The clerk has no power to tax costs, not regulated and provided hy statuté. Whether extraordinary costs may not he allowed by the direction of the court — Qaere.</p> <p>2. The clerk may tax in the hill of costs, the fee provided by law to justices of thepeace, fortaking depositions; whether taken in or out of the State, by a justice of the peace, or by commissioners.</p>

Writ of Error to the Court of Chancery sitting at Mobile. The plaintiffs in error alledge in their bill, that some of them are citizens of New York, and others of Pennsylvania-, and that they recovered sundry judgments against the defendant in the circuit court of the United States for the fifth judicial district and the southern district of Alabama — the time when and the amounts for which these judgments were rendered is specially stated.

Writ of Error to the Court of Chancery for the 13th District. The bill is filed by White against Stover and Curtis, to enforce the vendor’s lien upon a certain tract of land, sold and conveyed with warranty, by White to Evans, and for which two notes were executed from Evans to White, one dated April 27, 1836, for $6,000, the other dated November 8, 1837, for $1,036 94. The date of the conveyance is not stated.

The bill was filed by the defendant in error, for the settlement of a partnership in the purchase and sale of lands.

This was a proceeding under the statute for the trial of the right of property. From a bill of exceptions sealed at the instance of the claimant, it appears, that a writ of fieri facias was issued from the circuit court of Morgan, on the 25th January, 1842, which on the 23d February following, was received by the sheriff of Pickens.

Writ of error to the Orphans’ Court of Montgomery. In the matter of the distribution and settlement of the estate of John S. Sankey, deceased.

Writ of error to the Circuit Court of Tallapoosa. ActioN on the case for a malicious prosecution, by the defendant against the plaintiff in error. The declaration sets forth the cause of action to be, a charge of perjury upon a proceeding before a justice of the peace.

Writ of Error to the Circuit Court of Dallas. This was the trial of the right of property under the statute. The plaintiffs in error caused a fieri facias to be issued in 1842, on a judgment recovered by them in the circuit court of Dallas, against the goods and chattels, &c. of John Y. F. Walker, for the sum of $14,177 78.

Writ of Error to the Circuit Court of Clarke. Debt by Dubose, on a note to him as administrator of Wm. Brookshear, for $480, dated 24th February, 1844, payable six months after date. The defendants pleaded nil debit, with other pleas.

Detinue for eight slaves. Upon the trial under the general issue, as appears from a bill of exceptions, the plaintiff was sworn to give evidence of the loss of a deed of trust, executed by one Thomas L. Holley, to him, for the slaves in controversy, to secure certain debts therein specified, and made oath, that the deed had been in his possession; that in 1844 he left it in his pocket book, in the law office of Nathaniel Cook, at Hayneville, where he kept some of his papers.

The plaintiffs in error filed their bill, setting forth that the Messrs. Hogan, as principals, and S. Meredith and T. Skidmore, as their sureties, on the 28th May, 1841, made and negitiat-ed their promissory note to the defendant, for the sum of $7,000 ; which has been reduced by payments to $4,050. For this balance, a suit is pending in favor of the defendant, in the circuit court of Morgan.

Writ of Error to the Court of Chancery forth the 28th District. This bill is by Harkins, Brahan, and the administrator, the widow and heirs at law, of one Suifrance against Pope, and the heirs at law of his deceased wife.

<p>1. The articles exempted by law from sale by execution, are not rendered subject to such sale, in consequence of the husband making a fraudulent sale of all the rest of his property.</p>

Writ of Error to the Court of Chancery sitting at Mobile. On the 5th of October, 1843, the plaintiff in error filed his bill for the foreclosure of the equity of redemption of the defendant, Anderson, and the sale of certain real estate which the latter had previously conveyed by way of ¡mortgage. The facts of the case, as they are gathered from the bill, am swer and exhibits may be thus condensed.

Writ of Error to the Court of Chancery for the 2d District.. This bill is. filed by Wm. A. Hardy and others, as children of Robert Hardy, sen., against Catterlin.

Writ of Error to the Circuit Court of Lowndes. Assumpsit by the defendant, against the plaintiff in error. Pleas, non-assumpsit, with notice of set off, and the statute of limitations.

The plaintiff in error was one of the predecessors of defendant in the administration of the intestate’s estate, which had been reported insolvent, and insisted upon the right to retain from the assets of the estate, an account, amounting to more than $2200, which he affirmed the intestate was indebted to him at the time of his death.

Writ of Error from the County Court of Mobile, Assumpsit by Fox against Paine, to recover the amount of a promissory note, made by W. S. Paine & Co., payable to Judson & Hoppin, on the 8th July, 1837, and by them indorsed to Fox.

Writ of Error to the Chancery Court of Sumter. Bill for a divorce by the plaintiff in error. The bill seeks a divorce a mensa et thoro, and charges that the defendant was violent, and disorderly in her conduct, “ until at length her life was one continued practice of extreme cruelty, upon your orator and his children.” It further charges that she has left his house, and gone to the State of Mississippi.

Writ of Error to the Circuit Court of Barbour. This was ail action of covenant, at the suit of the defendants in error and John McKay and the plaintiff, and has been twice before this court at previous terms. (See 4 Ala. Rep. 346 ; 5 Id. 388.) The questions of law now presented for revision, arise upon the fourth count of the declaration, the defendant’s pleas, and the plaintiffs demurrers thereto.

Writ of Error to the Circuit Court of Pickens. Assumpsit by Swansey, suing for the use of W. C. Ferguson, against James H. Cameron and Sarah Cameron, as executor and executrix of the last will and testament of John M.' Cameron, deceased, who, in his lifetime, was the executor of the last will of Moses W. Taggert, deceased.

Assumpsit by the plaintiff, against the defendant in error. The declaration alledges, that the plaintiff transferred a promissory note to the defendant, executed by one Donoho to A. Battle, and indorsed by Battle to the plaintiff. That the note was transferred by indorsement by Battle to the plaintiff, and by him was transferred before its maturity to the defendant, as collateral security for the payment of a debt which he owed him.

This action was bronght to recover damages for alledged neglect on the part of plaintiff in error, as sheriff, in not serving a writ of capias ad satisfaciendum, sued out by the defendant in error, on the 2d of January, 1843, for $700, besides damages and costs, on a judgment obtained by him against William Miller, Henry Carter, and John W. Carter, which writ came into plaintiff’s hands, as sheriff, for service and execution and also for a false return by plaintiff in error,…

Writ of Error to the Chancery Court of Coosa. Action of debt in the name of the Governor suing for the use of the Branch Bank at Montgomery, who sued for the use of Bolling Hall, against Powell and others, as the sureties of one Campbell, upon his official bond as sheriff of Coosa county. The breaches assigned to the condition of the bond, are ■ — 1. That Campbell did not perform all and singular the duties of sheriff. 2.

The bill which was filed by the defendant in error, states, that about the 1st February, 1840, the plaintiffs in error, as trustees in a deed made by Willard Freeman for the benefit of the Tombigbee Rail Road Co., offered for sale at Jones’Bluff, certain lots which were bought by complainant, for $2,176, for which complainant executed his two notes for $1,088 each, due twelve and twenty-four months from the date, payable to the trustees, with surety, aud at the same time…

Writ of error to the .Circuit Court of Talladega. This was an action of assumpsit, at the suit of the plaintiff in error. The declaration contains several counts: 1. For boarding and lodging the intestate and her servant, at her instance and request. 2. For money paid, laid out and ek-pended. 3. For money had and received. 4. Upon an account stated.

Writ of Error to the Court of Chancery for the 11th District. Brin by Girard Hansford, describing himself as a free man of color, against Maria Hansford, who is not described as colored, his wife, for a divorce. The bill charges that the parties were married on the 15th November, 1825, in accordance with the laws of Alabama.

The estate of Eli Shortridge being reported insolvent, by the defendant in error, and an order made for the creditors to file their claims, the plaintiffs in error filed an account in the clerk’s office, against the estate, within the time prescribed by law, and verified by affidavit, but not by the oath of the plaintiff.

Writ of Error to the Circuit Court of Benton. This was an action of assumpsit at the suit of the plaintiff, Dodson. The declaration contains a count upon a promissory note, by which the defendants, on the 23d February, 1843, promised to pay to the plaintiff below, one hundred and fifty dollars, in Alabama bank notes, on the first day of Janu_ ary, 1844, with interest from the date.

Writ of Error to the Circuit Court of Lowndes. Claim interposed by Thomas Smith, on behalf o'f himself and others, as trustees of a deed executed by Henry Stewart, to certain cotton levied on as his property, at the suit of Frow. At the trial, the claimants offered a deed from Stewart, dated 19th December, 1842, and conveying to them certain lands, slaves, and other property therein described, as well as certain notes due from divers individuals to the grantor.

Assumpsit, by the defendant in error against the plaintiffs in error. Upon the trial, the plaintiff swore to the correctness of his account, it being under one hundred dollars, and proceeded to detail the circumstances of the account, and stated that the wife of the defendant, whilst sole, had contracted with him for a tombstone, at a price then agreed on, which had. been delivered at Prairie Bluff. That he then called on her' for payment, and she promised to pay in the fall.

Writ of error to the Court of Chancery sitting in Talla-dega. The plaintiffs in error alledge in their bill, that the complainant, Jones, in 1838 or 1839, borrowed of .the defendant thirteen hundred dollars, at a usurious rate of interest; that he has some four or five times, and perhaps oftener, renewed his notes for this loan, and at each successive renewal, usurious interest has been added.

Detinue by McMillan to recover of Spence a certain sack or bag marked in a particuliar manner, and containing forty-nine pieces of gold coin, called sovereigns, and $63 50 in silver coin. At the trial, on the general issue, it was in evidence that several persons, having learned that one Ware had stolen a slave or slaves, and that a considerable reward was offered for his capture and commitment to some jail, proceeded to watch the road in Talladega county.

Writ of Error from the County Court of Pickens. Assumpsit by the plaintiffs in error, against the defendants, oil a promissory note for $>623, due the 25th December, 1836, executed by them jointly with one Childs. The defendants pleaded non assumpsit, and that they are the mere securities of Childs, and Were released by time being given to him, by the creditor, without their consent.

Writ of Error to the Court of Chancery sitting at Jacksonville. It is stated in the bill that the complainants, William and Henry H. Mallory, the former as principal, and the latter as surety, executed their bill single, on the 15th February, 1841, by which they promised to pay to the defendant, twelve months after date, $3,315.

Assumpsit by Stewart and another, as administrators de bo* nis non of B. G. Sims, deceased, against Garnett and another, as the makers ofa note payable to one Gordon, administrator in chief of that estate. The defendants pleaded, 1. Non as-sumbsit. 2. Want of consideration. 3. Failure of consideration. 4. Fraud. At the trial, the note was read to the jury, and appeared to be given on the 14th February, 1845, due on the 1st January thereafter.

The plaintiff in error was appointed administrator, on the 27th of April, 1840, and at the same time, an order was made authorizing a public… Held: the administrator was guilty of a devasta-vit, in keeping the property together for four years, without an order of the court for that purpose, and was chargeable with hire, and that there being no necessity to sell the slave, for the payment of debts, he was liable for his value, at the time of the appraisement, and charged him…

Writ of Error to the Circuit Court of Tuskaloosa. This was an action commenced by attachment, at the suit ■of the defendant in error against the plaintiff, upon a promissory note for the sum of $177 33, made by the latter, and indorsed by Joel White, and two other persons. The affidavit upon which the attachment issued was made by the first indorser of the note.

Writ of Error to the Orphans’ Court of Talladega. Ragland was appointed by the court, in the first instance, as administrator of J. W. Milam, deceased, but afterwards resigned, whereupon J. J. Milam was appointed administrator de bonis non.

This was a petition by the plaintiff in error, for a share in the distribution of the estate of John Trewhit, deceased. The facts upon which the application was based, arc, that the petioner married one of the daughters of the intestate, that she died before her father, leaving issue a child by the marriage, that then the intestate died, and afterwards the child of the petitioner, leaving neither mother, brother, or sister, or the descendants of such.

Writ of Error to the Circuit Court of Macon. This was an action of trespass, at the suit of the defendants in error, against the plaintiff and Jackson Rains, to try the title to a half section of land, particularly described, and. to recover damages for its occupancy.

This proceeding is the final settlement of the estate of Thomas D. Reid, as an insolvent estate, by John Ward, the administrator. So much of the proceedings as are necessary for the understanding of the errors assigned, may be thus stated. Administration was granted to Ward on the 21st December, 1841, but there are no recitals in the record shewing that the orphans’ court of Pickens county was invested with jurisdiction over the particular estate.

Tkial of right of property. The defendant in error having obtained a judgment against Delilah Wall, sued out execution thereon, which was levied on certain slaves, to which a claim was interposed by the plaintiff in error. Upon the trial it was proved, that the defendant in execution, and the claimant resided together, and that the claimant exercised acts of ownership over the slaves, but they, were considered by the witness as in possession of the defendant.

Writ of Error to the Court of Chancery sitting at Mobile. The plaintiffs in error are Julius Chaudron, and Annette, his wife, late Annette Duval, Felix Chaudron, and., his wife, late ...... Duval, daughters of Daniel Duval, deceased, Philip Duval, William Duval, Theodore Duval, Geo. and Francis Duval, (the latter an infant under twenty-one years, by Julius Chaudron, his next friend,) all children and heirs of the deceased and his wife, Catherine, who has since died.

Writ of Error to the Circuit Court of Pickens. Assumpsit by Huckabee, as the administrator of one Foster, against Albritton, as the maker of a promissory note. At the trial it was proved the note was given for the price of a slave sold by Foster to the defendant, and for which a written bill of sale was given, containing a Warranty of the title, but no warranty of the soundness.

Writ of Error to the Chancery Court of Mobile. Held: sold first, and the rest in the inverse order of the conveyance from Gazzam ■ — that this rule for the sale of the property, was fully acquiesced in by all the defendants — that their several answers exhibit their derivative titles, and the dates of-the conveyances from Gazzam, under which they claim.

This was a motion, under the statute, at the suit of the defendant in error, against Easley, as sheriff of Talladega, and the sureties on his official bond. Several pleas were interposed, which need not be here noticed, as issues were formed and submitted to a jury, and the questions now presented do not controvert the adaptation of the proof to the issues, but the sufficiency of the facts proved to bar a recovery.

Writ of Error from the Circuit Court of Barbour. Motion against Hodges, the sheriff of Barbour, and his sureties, for failing to pay over money collected on a fi. fa. issued at the suit of Laird against one Richburg.

Writ of Error to the Circuit Court of Clarke. From a bill of exceptions it appears, that on the trial, the plaintiffs introduced a copy of a deed of marriage settlement, having first accounted for the non-production of the original. To which the defendant excepted, because the deed was not recorded as required by the law of N. Carolina, and because there was no certificate of the register, showing that the law of N. Carolina had been complied with.

Writ of Error from the Circuit Court of Benton. This was an action of assumpsit on a promissory note, at the suit of the defendant in error. The declaration describes the note as made by the plaintiff in error, on the 3d January, 1837, for the payment of twelve hundred dollars, twelve months after date. The cause was tried upon the plea of non-assumpsit, with leave to give any matter in evidence which would bar the action, or avail the plaintiff in answer to such bar.

Writ of Error to the Circuit Court of Franklin. Assumpsit by Deshler, as the assignee of B. Merrill & Co. upon a promissory note against Alsobrooks as one of its makers. The declaration is in the usual form.

Debt, by the plaintiff in error, on a bond executed by the defendants, to the plaintiffs, in the penal sum of $ 18,200, with condition to prosecute an attachment sued out by Martin, against the estate of the plaintiffs, and to pay them all such costs, and damages, as they might sustain by the wrongful, or vexatious suing out such attachment. The plaintiffs declare upon the penalty, and assign several breaches.

Writ of error to the Court of Chancery sitting in Hayno-ville. Held: that if property be given by will, or otherwise, it must remain subject to the incidents of property, and will be liable to the payment of the donee’s debts, and upon his bankruptcy, to his assignees.

Writ of Error to the Circuit Court of Perry. Claim interposed by Brumby, as the administrator of John P. Wallis, to a philosophical apparatus, levied on by a fi.fa. at the suit of L. & C. C. Langdon & Co. against the Manual Labour Institute. At the trial, the claimant offered the deposition of a witness, to whom the plaintiff in execution objected, on the ground that he was one of the defendants in execution, he being a trustee of that corporation.

The questions here presented, arise out of a petition presented to the orphans’ court of Greene, by which, and the other proceedings found in the record, it appears, that one William L. Bennett, died in Williamson county, Tennessee, leaving a last will and testament, and that the plaintiff in error was appointed administrator de bonis non, with the will annexed, in the State of Tennessee — that the estate in Tennessee is largely insolvent, and in the course of settlement in…

This was an action of assumpsit at the suit of the defend-* ants in error. The declaration contains eight counts, the three first of which are on a promissory note for the sum of $3,623 18, dated the 26th June, 1837, and payable the 1st March next thereafter; the other counts all charge a liability without reference to any writing, and are sufficiently comprehensive to tolerate a recovery, if the proof authorizes it.

Writ of Error from the Circuit Court of Randolph. Assumpsit by Wilder against Bazemore, and another, on seventeen promissory notes for fifty dollars, each dated 18th May, 1841, and due one day after date. At the trial the defence relied on was usury.

The bill was filed by the appellant, and alledges, that he is the owner and occupier of a cotton press, in the city of Moa-bite, known as the “ Independent Press,” and of the wharves and warehouses thereto attached, and was engaged in the business of compressing, and storing cotton — that there was a certain other cotton press in the city, with large warehouses and wharves thereto attached, known as Hitchcock’s Press, situ* ate contiguous to the press of appellant.

<p>Writ of Error to the Circuit Court of Lowndes.</p> <p>Action on the case by Fortune against Brazier. The plaintiff alledges in his declaration, that J. A. Tarver, Fortune & Withers, John Dunn, H. R. Nixon, James Brazier, J. L. Rochelle, Nath’l Bozefnau, B. J. B. Lathrop, J. R. Gilbert, Hearn & Whitman, C. Toliver, The. Sayre, H. P. Perry, H. V. Wooton, H. V. Smith, James M. Gunn and James H. Rochelle, were partners in a line of stages, and for the purpose of establishing said line of stages, subscribed from one to five shares each, at $100 per share, one half to be paid for on the first January, 1839, the other half on the 1st January, 1840. By the articles of co-partnership, the partners contracted and agreed, by and between themselves, each to pay the sums subscribed to some certain person therefor to be appointed by the partners, or a majority of them, and by them authorized to receive the same, and in case of their failure to pay, then the said partners, by the said articles of agreement and partnership, gave to the said person so appointed authority to sue for and recover the amount of the said shares so subscribed. Under these articles, Brazier was appointed to collect and sue for the sums due. The partnership, on the 1st May, 1841, was indebted to Fortune in the sum of $928, and the defendant, Brazier, in consideration of this indebtedness, authorized ■ and employed Fortune to sue in his (Brazier’s) name for the sums due from the several partners. Under this power and authority, Fortune commenced suits in the name of Brazier, against nine of the delinquent partners, when Brazier, maliciously intending, &c. to injure the plaintiff,'caused the said suits to be dismissed, and refused to permit the plaintiff to use his name in said suits, as he had previously agreed, whereby the said plaintiff wholly lost the means to rocover the said debt, and was put to great cost and expense, &c.</p> <p>At the trial, the plaintiff produced and read the articles of partnership, which is substantially as set out in the declaration; the clauses bearing upon the questions raised are as follows, viz:</p> <p>“ And each doth bind himself to the others, to pay to some person to be appointed by the said shareholders, or a majority of them.”</p> <p>“ And in case of failure so to pay, do give the said person so appointed, authority to sue for and recover the same as a,-foresaid.”</p> <p>“ And we do hereby covenant and agree, with each other, that so soon as, &c. they, or a majority of them would appoint some certain person to collect the amounts subscribed, with authority in his own name to sue for and recover th¿ sums so subscribed.”</p> <p>He also proved that Brazier was the person appointed under these clauses, of the articles of partnership, and that he executed a certificate to the plaintiff in these terms, viz:</p> <p>“I certify that the amount now due J. A. Fortune, by the stockholders of the Selma and Montgomery stage line, on the 1st day of May, 1841, is $928 16. Selma, 27th April, 1841.</p> <p>J. BRAZIER.”</p> <p>“ The said Fortune has power to collect the above amount from the stockholders. 27th April, 1841. J. Brazier,</p> <p> Agent for collecting from original subscription. </p> <p>The plaintiff also proved the commencement of the suits in the name of Brazier, and that the latter caused them to be dismissed, against the consent of the plaintiff.</p> <p>It was also in evidence, that after the commencement of the suits by Fortune, in the name of Brazier, an order was made by the circuit court in which they were pending, at the instance of Brazier, that Fortune should give security for the costs within four months, or the suits to be dismissed. It was shown the security was not given within that time, but at the succeeding term of the court, before the suits were dismissed, Fortune offered in open court, to indemnify Brazier against the costs, by executing to him a bond with sufficient sureties for that purpose, which Brazier refused. It was also proved, that Brazier then had in his hands between $400 and $500 of Fortune’s money.</p> <p>On this state of proof the court charged the jury, the plaintiff was not entitled to recover, because the suits commenced by Fortune, in the name of Brazier, could not have been maintained by Brazier.</p> <p>The court further charged, that the orders for the dismissal of the suits, was a protection to Brazier against a recovery in this suit; that however it might be as a question of morals, there was no legal liability resulting from the dismissal of the suits by Brazier.</p> <p>These charges are now assigned as error.</p> <p>made the following points:</p> <p>1. Case is the proper remedy for an injury of this nature. [2 Step. N. P. 1010; Smith v. Goodwin, 2 B. & A. 420; 1 Chitty PI. 136 ; 3 Wils. 349.]</p> <p>2. The suits dismissed could have been maintained in the name of Brazier. [Nance v. Grigsby’s Ex’rs, 3 Ala. Rep. 347.]</p> <p>3. The order dismissing these suits is no protection to the defendant here, it being shown the act was against the right of the plaintiff and maliciously procured to be done by the defendant.</p>

Trial of the right of property, in which the plaintiffs in error were claimants. From a bill of exceptions found in the record, it appears that the plaintiffs offered in evidence the executions on which they made their levy, showing that on the 6th October, 1842, they were levied on 175 pair russet brogans, 1800 sides of leather, 25 sides russet upper leather, three mules, two horses, and one road wagon.

Writ of Error from the Circuit Court of Cherokee. Trespass by Roden against Murphy and others for taking from his possession and carrying away two slaves. All the defendants joined in the plea of not guilty, but severed in their other pleas.

Writ of Error to the Court of Chancery for the 3d District. This bill is filed to set aside the sale of a certain tract of land made by two of the defendants, with the will annexed of John F. Conaway, and purchased by the other defendant.

On questions of law referred as novel and difficult by the Circuit Court of Benton. The defendant was indicted, at the spring term, 1845, of the circuit court of Talladega county, for the stealing, taking and conveying away two slaves, with a view then and there to convert such slaves to his own use.

Assumpsit on a promissory note by Brownrigg as the in-dorsee, against Frazer, as the maker. The declaration states the note is made payable to one Harrald, or order, and that it was indorsed by him to the plaintiff.

Writ of Error to the Circuit Court of Sumter. Trover, by J. C. Broome, J. A. Bradford, M. A. Broome and S. Broome against David Curry, for the conversion of a slave. Curry died during the pendency of the suit, and King was made a party as his administrator.

Writ of Error to the Court of Chancery for the first District. This is the same case reported under the title of Toulmin et al. v. Hamilton, et al, 7 Ala. Rep. 362. It comes here now, after some change in the parties, on the question of distribution referred to, but not decided, in the third paragraph of the opinion then delivered. In order to present the facts'' of the case in connection with the present judgment, they will be here recited.

Writ of Error from the Circuit Court of Sumter. Assumpsit, by Meredith, as the executor of the last will of James E. Jones, against Richardson & O’Neal, for money paid by his testator for them, and for money had and received to his use.

Writ of Error to the Circuit Court of Talladega. Action on the case, by Jones against Kirksey, for maliciously suing out an attachment, on the ground that Jones was about to dispose of his property, fraudulently, with intent to avoid the payment of the debt due to Kirksey. The defendant pleaded the general issue, and also that the plaintiff, when the attachment was sued out, was about to remove himself and property out of the State of Alabama..

ActioN of debt by Roper against Garnett, as the administrator of one Russell, on a bond executed by him as the surety for one Grimes, given by the latter upon interposing a claim to certain horses, levied on as the property of one Parks, at the suit of Roper. The bond is conditioned that Grimes should have the horses forthcoming, if the same should be found liable to the attachment, and pay such costs and damages as should be recovered, for putting in the claim for delay.

Writ of Error from the County Court of Sumter. Assumpsit by Mrs. Wideman affainst Hellen, as the administrator of Henry Wideman. The declaration, amongst other matters, counts on a note dated 19th May, 1838, for $286 37, made by the intestate, payable to the plaintiff, by the name of Henry Wideman, or bearer, on demand, and also for divers slaves sold and delivered. The defendant pleaded non assumpsit, and the statute of non-claim.

Assumpsit by Winston v. Locke, oh a special contract, and the common counts.

Writ of Error to the Court of Chancery for the third District. This bill is filed by Gary against Frost and Dickerson and five other defendants, and the case made by it is as follows, to wit: Gary, the complainant, in the year 1842, was the sheriff of Sumter county.

Writ of Error to the Circuit Court of Talladega. Tiiespass, by Miller against McLane, for taking slaves out of the plaintiff>s possession: The defendant pleaded- — 1. Not guilty. 2. A justification that he took the slaves as coroner by virtue of an execution against the goods, &c. of one King, in the hands of the sheriff, to be administered.

Action of malicious prosecution by Fowler against Collins. The allegation of the declaration is, that the defendant false-1 y, maliciously, and without any reasonable or probable cause, charged the plaintiff, before a justice of the peace, in Talla-dega county, with having stolen, taken and carried away two bales of cotton from the defendant’s gin, with intent to steal the same.

Writ of Error to the Court of Chancery for the 16th District. The bill is filed by Dougherty against McGehee and Thomas, and the case made by it is this, to wit: In 1835, the complainant, defendants, and some twelve other individuals, whose names are set out in the bill, entered into co-partnership, for the purpose of purchasing Creek Indian reservations of lands.

Writ of Error to the Circuit Court of Dallas. Scire eacias by Carr on a bail bond against T. R. Kenan, one of the obligors.

gainst Henry, as the obligor. The declaration describes the bond, as dated the 9th of April, 1840, assigned the 15th February, 1841, and only the penal part is set out.

Writ of Error to the Circuit Court of Greene. Detinue, by Murphy against Inge, for a number of slaves. At the trial, the following state of facts was agreed by the parties, and submitted as evidence to the jury, to wit: Dr. Richard Inge married Miss Eliza Bullock, in Granville county, North Carolina, in the year 1813. At that time Dr. Inge resided at Louisburg, in Franklin county, North Carolina, about thirty-five miles from the residence of his wife’s father.

The complainants in this bill are the legatees of D. Powell. upon whose will letters testamentary were granted to Seymour Powell, and the suit is against M. A. Powell, as his adminis-tratrix. Its object is to obtain a discovery of the, assets sold by the executor, in his lifetime, and to compel an account and settlement.

Writ of Error to the Orphans’ Court of Madison. The estate of Henry Stokes being represented as insolvent by George Steele, the administrator, the Bank filed as a claim against the estate, the note of Benjamin Patterson, dated 12th August, 1841, payable one hundred and twenty days after date, to said Stokes, for $4000. The note is indorsed by Stokes and another person, and they waive entirely the necessity for protest and notice.

The prisoner was indicted for biting off the ear of Isaac J. Kirkendall, a white man. Upon the trial of the cause, it was in proof, that Kirkendall, who was the overseer of the prisoner, seeing him loitering about the negro cabins, told him to go to work. The prisoner replied he was sick and unable to work, upon which the overseer felt his pulse, told him he Was not sick, and again ordered him to his work.

This was an action of covenant, at the suit of the defendant in error, to recover damages of the plaintiffs, for the breach of warranty contained in a bill of sale of a slave named Major, The cause was tried upon the plea of covenants performed, a verdict returned for the plaintiffs for'$970 45; and judgment was rendered thereon.

Writ of Error to the County Court of Jefferson. Assumpsit by Badger & Steele against Kelly, as the administrator of one Hall. The declaration contains the com•mon counts, to which the defendant pleaded, with other pleas, that the claim of the plaintiffs was not presented to the administrator within eighteen months from the 11th June, 1842, at which time administration was granted.

Detinue for a slave by the plaintiff in error. This case was here at a previous term — 5 Ala. Rep. 578.

The plaintiff in error suggested to the circuit court, that a writ of fieri facias, which is particularly described by its date, amount, &c. issued therefrom, at his suit, against the goods and chattels, &c. of Samuel Campbell, deceased, in the hands of B. F. Roper, his administrator, to be administered; that this fi.fa. was addressed to any coroner of the State of Alabama, and was placed in the hands of the defendant, Bass, to execute, on which it is suggested he could,…

Writ of Error to the County Court of Fayette. AotioN of assumpsit by Tunnell and wife against Boswell. The defendant pleaded in abatement, that before the writ in this cause was issued, the plaintiffs impleaded him for the same identical causes of action before a justice’s court, and obtained judgment thereon against him, upon which he appealed the said cause to the county court, where it was pending against him, at the return term of said writ.

Assumpsit by the defendant, against the plaintiff in error, on an open account. Pleas, non-assumpsit and the statutes of limitations, of three and six years. On the trial, the plaintiff proved the account, the last item of which was due more than three years before the commencement of the suit, and also proved that the defendant within three years, admitted the correctness of the account, but said he had off sets to a small amount, but did not promise to pay' the account.

Writ of error to the Circuit Gourt of Fayette. The plaintiff in error brought an action of detinue against the defendants, as executors of the last will; &c., of Wm. M, Strong, deceased. The declaration is in usual'form, alledg-ing the possession by the plaintiff of two slaves, particularly designated, their loss by him, and their finding and detention by the defendants. Issues were joined upon the pleas of non detinet and the statute of limitations.

Writ of Error to the Court of Chancery for the 1st District. A receiver having been appointed in the case of the Bank ,of the U. States vs. Hitchcock’s heirs and others, in the progress of that cause, to which the defendants in error are parties, his accounts were referred to the master for examination, with instructions to report what allowance should be made as a compensation for renting the property in his charge, and disbursing the money necessary for repairs.

The estate of Josiah N. Boggs having been declared insolvent, the Branch Bank presented two claims against the estate, which were rejected by the commissioner appointed to act for the judge of the- orphans’ court of Perry, who was incompetent to sit, and thereupon the bank obtained a certiorari removing the proceedings into the circuit court.

Writ of Error to the Circuit Court of Limestone. The plaintiffs in error filed their petition, setting forth that the female petitioner was the wife of the intestate, Binford, who died in the year 1835; at the time of his death and previously, the intestate resided in Limestone, and died seized and possessed of a tract of land situate in that county, which the petitioners particularly describe, and alledge to be the place of his residence: Further, that intestate left two…

Assumpsit by Browning & Co. against John Grady. The declaration counts on two notes made in New York on the 27th of August, 1838, one for $1050 37, payable sixty days after date, -at the Merchants’ Bank at Cheraw, South Carolina, and the other for $1056 41, payable at the same place, ninety days after date. Also, upon money due for goods, &c. —account stated, &c. By agreement, the defendant was to have the benefit of special matters of defence as if pleaded.