Volume 12 — Alabama Reports

Writ of Error to tlie Circuit Court of Wilcox. Assumpsit by McLeod, as the executor of K. G. Gordon, against Powe & Smith.

Assumpsit by the plaintiff in error, administrator de bonis non of Alexander B. Puryear, against the defendant in error, for money had and received, &c. From a bill of exceptions, it appears, that the defendant, who is the widow of the plaintiff’s intestate, during the lifetime of her husband, had monies in -her hands, Avhich she loaned out, to the amount of $-, and that after the death of her husband, this money was repaid to her.

Writ of Error to the Circuit Court of Randolph. This was an action of trespass, at the suit of the defendant in error, brought as well to try titles to the east half of section six in township seventeen, and range twelve east in the Coosa land district, as to recover damages for its occupation. The cause was tried by a jury, who returned a verdict for plaintiff, assessing his damages at ninety-five dollars.

Writ of Error to the Circuit Court of Mobile. Stallswoeth sued one Thom before a justice, and there had judgment; afterwards he summoned Huntington & Cleveland as garnishees, but the/ answered, that although they were indebted to Thom, yet they had been notified by Scott, Slough & Co. that Thom had assigned the debt to them. Scott, Slough & Co. were thereupon summoned as transferees to contest the plaintiff’s claim.

The bill, which was filed by the plaintiff in error, alledges that one William Hollinger, on the 22d December, 1843, being the owner of certain slaves, by deed of that date, made a gift of them to her, for her sole and separate use, and intended so to express it in the deed, and so directed the deed to be drawn, but which was unskilfully drawn, and because the intentions of said Hollinger were not set forth, does not clearly express the intention of Hollinger, to give her a…

Writ of Error to the Circuit Court of Sumter. The plaintiff in error declared against the defendant in detinue for a female slave and other property, alledging his possession as administrator, the loss by him and the finding and detention by the defendant.

<p>Writ of Error to the Court of Chancery for the 30th District.</p> <p>The case made by the bill is this: Hunter, the complainant, in the year 1836, purchased from O’Neil, the defendant, a half-quarter section of land for the price of $456, for which he executed his note to O’Neil, payable 25th December, 1837, and O’Neil executed an instrument under seal, binding himself, his heirs, &c. to make a deed for the land as soon as the note was paid. At this time O’Neil was in affluent circumstances, but afterwards failed and became insolvent. The note was reduced by payments, but a portion of the sum remaining due, O’Neil obtained judgment in 1841 for $219 ' 81 debt, and $46 38 damages. At the time of the sale of the land, it was incumbered by a mortgage from O’Neil to the Tuscumbia and Decatur Railroad Company, which yet remains in full force, and the existence of which was unknown to the complainant when he purchased and took O’Neil’s bond. The prayer is for a rescission of the contract, and for further relief.</p> <p>The answer admits all the allegations of the bill with regard to the purchase, except the want of knowledge asserted by the complainant of the existence of the incumbrance, as to which it asserts that the fact was known or communicated. The defendant insists the mortgage spoken of does not become absolute until the year 1848, and that he is under no obligation to give any thing more than a deed when the money is paid. He admits his actual insolvency, but submits it may not continue always, and relies on his answer as a general demurrer to the bill.</p> <p>The chancellor at the hearing dismissed the bill. This is now assigned as error.</p>

Detinue by the defendant in error. From a bill of exceptions, found in the record, it appears that the plaintiff in error, as sheriff, had levied on a number of slaves, by virtue of an execution against James C. Ken-nerly, and that the action was commenced by the plaintiffs below, as trustees of Catherine Kennerly, wife of James C. Kennerly,’ and relied on a deed, made previous to the marriage, in the State of South Carolina; to which both the husband and wife were parties,…

Writ of Error to the Circuit Court of Mobile. This was a proceeding by notice and motion, at the suit of the defendant in error, against the plaintiff, as the acceptor of a bill of the following tenor : “¡$1,000. Mobile, May 31, 1841.

Writ of Error to the Circuit Court of Mobile. Debt by Campbell & Cleveland against Mrs. Quigley.

' Bill filed by defendant in error, alledges, that complainant’s intestate, was the owner thereof, and in possession of five slaves, a negro woman and her four children.

Writ of Error to the Circuit Court of Barbour. This was a trial of the right of property under the statute,, in which the plaintiff in error was the plaintiff in execution, and the defendant the claimant. The property in question is a female slave, levied on to satisfy a fieri facias against the goods and chattels, &c., of William F. Evans and others..

Writ of Error to the Circuit Court of Dallas. Claim to certain horses, slaves and cotton levied on by fi. fa. at the suit of Cole & Co. against Wm. B. Goodgame. 1. At the trial, it was in evidence that Wm. B. Goodgame, the defendant in execution, in the year 1835, was appointed guardian for George H. Goodgame, the claimant, he being then a minor.

The bill was filed by Albert McGehee, and Joel A. Stokes, against Abner McGehee, William McGehee, and James A. Smith. The material allegations of the bill are, that the complainant, Albert, and the defendant Abner McGehee, became the sureties of Wm. McGehee, in a promissory note to one Chaney, for $790, and executed their note therefor, due 1st January, 1839.

Writ of Error to the County Court of Mobile. This was an action of assumpsit, at the suit of the plaintiffs in error, on a promissory note, by which the defendant, on the 28th December, 1843, promised to pay to George G. Henry, or bearer, at the Bank of Mobile, on the 1st March, 1845, the sum of seventeen hundred and ninety-three 22-100 dollars. The note was indorsed and delivered by the payee to the plaintiffs.

Writ of Error to - the Court of Chancery for the 9th District. This bill is filed by Iverson against Edmund Sheppard, William P. Sheppard, and E. A. Dunn, and H. Moore. Its object is to obtain satisfaction of a judgment obtained by Iverson against Edmund Sheppard, and one Lor e, by setting aside the assignment and transfer of a judgment in favor of said Sheppard, against Dunn and Moore, made by Sheppard to his son Wm.

The plaintiffs in error filed their bill as judgment creditors of Robert L. Walker, to set aside a deed of assignment made by him, for the benefit of certain of his creditors.

Writ of Error to the Circuit Court of Dallas. ' This was an action of assumpsit on a promissory note, by which the defendant below, on the 21st January, 1842, promised to pay twelve months thereafter, to the plaintiff, as administrator of Margaret McCord, deceased, the sum of f 682 88. The defendant pleaded — 1. Non-assumpsit. 2.

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

Assumpsit by the defendants in error, on a promissory note. The plaintiffs count upon a promissory note made to them by the defendants, in the usual form.

Writ of Error to the Circuit Court of Barbour. A writ of fierifacias issued from the circuit court of Montgomery, against the goods and chattels, &c. of John P. Booth and others, which was received by the sheriff of Barbour, on the 7th September, 1846, and levied by him on the following day, on a male slave named Bob, as the property of Booth. Thereupon the defendant in error made an affidavit,'and executed a bond with surety, to try the right, pursuant to the statute.

Writ of Error to the Court of Chancery for the thirteenth district. The case made by the bill is, that William Armstead, the father of the complainant, John K. Armstead, as an inducement for the latter to remove with his family to Alabama from the State of North Carolina, where he was then living, promised aud undertook, if he would do so, to give him certain lands known as the Turkey Creek plantation, as well as certain slaves.

Writ of Error to the County Court of Dallas. Assumpsit by the plaintiff in error. The declaration contains the common counts, and an account stated. Pleas — Non-assumpsit, and the statute of limitations.

Writ of Error to the Circuit Court of Butler. This was a proceeding for a forcible entry and detainer, pursuant to the statute, instituted by the defendant in error against Carter alone; a verdict and judgment having been recovered by the complainant, a certiorari was obtained by the defendant, who executed a bond with Ott as surety; conditioned for the successful prosecution of the cause in the circuit court.

Writ of Error to the Circuit Court of Shelby. Detinue by Joseph B. Dunn and others, against Davis, to recover a certain slave.

The plaintiff in error, as administrator of Algernon S. Pinkston, having represented the estate insolvent, and citation having issued to the creditors of the estate, they appeared and contested the fact of the insolvency of said estate, and insisted that the inventory submitted by the administrator was incorrect, and an issue being made up and submitted to the court, the following facts appeared : That the plaintiff in error was administrator both of the estates of Algernon…

Writ of Error to the Circuit Court of Dallas. This was an action of detinue, to recover a female stave,named Rachel. The cause was tried by a jury, who returned a verdict in favor of the defendant, and judgment was rendered accordingly.

Writ of Error to the Circuit Court of Dallas, allowed in vacation by one of the Judges of the Supreme Court. The prisoner was indicted for the murder of one Rich, and tried and convicted at the spring term, 1846.

Trespass by the defendant, against the plaintiff in error, sheriff of Sumter. The defendant pleaded not guilty, and justified under an execution against one Cooksey. Upon the trial, it appeared that Cooksey rented certain land of the plaintiff, in the year 1844, on which he raised the cotton specified in the plaintiff’s declaration, and that Cook-sey was indebted to him for the rent.

Writ of Error to the Circuit Court of St. Clair. This was an action of covenant at the suit of the defendant in error, on a deed by which the defendant below conveyed to the latter certain lands'.

Writ of Error to the Circuit Court of Cherokee. Trespass to try titles to a certain tract of land, commenced by Falkner against Leith. Jones was permitted by the court to.defend as landlord of Leith, to which the plaintiff objected — 1. Because there was no proof of this relation. 2. Because the plaintiff was the purchaser of Leith’s title at a sheriff’s sale. Both grounds for the objection were admitted to exist, but notwithstanding Jones was admitted to defend.

The mayor of the city of Tuskaloosa, issued an execution against the plaintiffs in error, directed to the marshal of the city, commanding him to make the sum of $104 22, the amount due by them on goods sold at auction, and commission, in that city, as given in by them or their agent, on oath, for the year next preceding the 1st March, 1845, to the city of Tuskaloosa.

Writ of Error to the Circuit Court of Barbour. This was a proceeding instituted before a justice of the peace, and judgment being rendered against the plaintiff in error, Hodges, appealed to the circuit court, and gave bond with J. Buford as his surety.

Writ of Error to the County Court of Mobile. Attachment by Hazard, against the goods, &c. of Jordon.

Assumpsit by the plaintiff in error, as assignee, to recover of the defendant in error as assignor, of a promissory note, made by Spencer Roane. The declaration contains three counts.

Writ of Error to the County Court of Tuscaloosa. This was a summary proceeding by notice and motion at the suit of the plaintiff. The defendant pleaded to the notice non asoumpsit and other pleas; thereupon the issues were submitted to a jury, but afterwards the plaintiff excepted to the ruling of the court, and then suffered a non-suit.

<p>Writ of Error to the Orphans’ Court of Shelby.</p> <p>The estate of P. Young was declared insolvent, upon the representation of Brashear and Gooch, its administrators, on the 27th December, 1845. The plaintiff filed his account against the estate, in writing, within the six months next, thereafter, to which was appended an affidavit, purporting to> be made by him before one William J. Flagg, a justice of the-peace in the state of Connecticut, on the 1st November, 1844,, and declaring the same account to be just and true.</p> <p>The administrators filed their exceptions to the allowance of the account, on the ground that it was not filed verified by the oath of the plaintiff within six months after the estate was represented insolvent, &c., and was not due, &c.</p> <p>The trial of the exceptions was continued from time to time until December, 1846, when, in addition to the original affidavit, filed as before stated, plaintiff produced another, made before the same justice of the peace, on the 21st November, 1846, whose certificate was accompanied with that of the secretary of state of Connecticut, under the seal of state, shewing his official character. This affidavit was filed the 16th December, 1846.</p> <p>The court, upon the hearing of the claim, rejected it, on the ground that the first affidavit was not shewn to be made bofore a justice of the peace; and the second was not filed within the six months, although it was so before the hearing. The rejection of the claim is the only error assigned.</p> <p>cited Hollinger v. Holly, 8 Ala. Rep. 456 ; Brown v. Easley, 10 ib. 566.</p>

Assumpsit by the defendant in error, against the plaintiffs in error, as executors of Joshua Kennedy, endorser of a promissory note.

Writ of Error to the Circuit Court of Lowndes. This was an action of trespass at the suit of the plaintiff in error, alledging an assault and battery upon, and imprisonment of him, by the defendant, without reasonable aud probable cause, &c. On a trial before the jury, the plaintiff read as evidence an affidavit and warrant as follows, viz ; “ The State of Alabama, Lowndes county.

Writ of Error to the Circuit Court of Lawrence. Debt by Stewart, suing for the use of Thompson, as the indorsee of a promissory note, against Pickett, as one of the firm of Pickett & Barker, its makers. The defendants pleaded several pleas, to which demurrers were sustained, but which are unnecessary to be noticed here, as the defendant does not raise any point upon them in his brief.

Trial of right of property, in which the plaintiff in error was claimant. The bank obtained judgment at the September term, 1845, of Mobile circuit court, against G. Lyon and James W. Roper, upon which a fi. fa. issued, which was levied upon two slaves, Patrick and Miles, as the property of Roper, and a venditioni exponas issued on the 30th October, 1846, directing the sheriff to sell the slaves, when the plaintiff in error interposed his claim.

Writ of Error to the County Court of Sumter. This was an action of assumpsit, at the suit of the plaintiff in error, on two promissory notes, payable and negotiable at the Branch of the Bank of the Stata of Alabama at Mobile, which the declaration alledges to be lost, but still due and unpaid.

Writ of Error to the County Court of Franklin. Covenant by Briggs, against Dickson, on a bond, the condition of which recites that Dickson had sold and conveyed to Briggs two lots of land in Russellville, Nos. 188 and 189, for the sum of $200, on which is situated a two story brick building, and for which Dickson had executed to Briggs a deed in fee simple — “ the title to one of said lots is in dispute” — and then provides: “ Now if the said Dickson shall satisfytbat…

Assumpsit by the defendant in error. The declaration contains the common counts, to which the defendant pleaded the general issue. Upon the trial, it appeared that the plaintiff had built a cotton warehouse, yard, wall, &c. for the defendant, furnished the materials, &c., and that the work, and materials were worth $3200. The defendant then produced a notice, on the plaintiff to produce a written contract, which was produced and read to the jury.

Writ of Error to the Court of Chancery sitting in Lawrence county. The complainant alledges, that on the 15th of April, 1839, Thomas J. Couch as principal, and himself and William L. Couch, and David Terry, as sureties, executed their writing obligatory, by which they obliged themselves to pay to the administrators of the estate of Daniel Johnson, deceased, the sum of $1137 58, one day after date.

Writ of Error to the Circuit Court of Cherokee. Detinue by Adams, against William and Mary Garrett, to recover a certain slave. At the trial, the plaintiff proved the possession and property in the slave to have been in him previous to February, 1841, and that since that time, it had been in the possession of the defendants, as well as the value of the slave, and that his yearly services were worth $100.

The defendant in error, brought suit against the plaintiff in error, before a justice of the peace, and recovered judgment, from which the defendant appealed to the county court.

Writ of Error to the Orphans’ Court of Shelby. On the 27th December, 1845, the report of insolvency which the defendants had previously made1 of their intestate’s estate, was confirmed, and the appropriate1 order made with a view to the settlement of the same. On the 2d September, 1846, the administrators filed objections in writing to the allowance of the plaintiff’s claim, which state the following causes: 1.

Writ of Error to the Circuit Court of Mobile. Claim interposed by Del Barco to certain property levied on by a fi. fa. at the suit of the bank, against ffm. A. Hard-away. The issue found in the transcript, is the allegation by the bank that the property was subject to the levy, to which “ the claimant, R. A. Hardaway, for plea says that the property is not subject to the execution.” The judgment entry is entitled The Branch Bank of the. State of Alabama at Mobile v. ffm.

This was a proceeding to recover rent, by the defendant in error, under a local statute, peculiar to the city of Mobile. The affidavit which is the foundation of the proceeding, was made by G. M. Mallet, setting forth, that the plaintiff in error was indebted to the defendant in error, in the sum of $163, for the rent of a tenement on Royal street, within the corporate limits of Mobile.

Writ of Error to the County Court of Russell. This was an action of assumpsit on a promissory note, by which the' plaintiffs, on the first of January, 1845, acknowledged to be due to the defendant in error the sum of ‡158 75. The cause was submitted to the jury upon the pleas of non assumpsit, payment and set-off, a verdict was returned for the plaintiff below, and judgment was rendered thereon. The members of the partnership were J. H. Jones, J. H. Williams and W. Ambrose.

Assumpsit by Graves, as the indorsee of a note payable to one Eaves, against Perry., as its maker. The note is dated 30th December, 1844, payable 1st January, 1846.

The bill was filed by the defendant in error, to foreclose two mortgages.

Writ of Error to the Circuit Court of Macon, The defendant in error declared against the plaintiff, in assumpsit, on a promissory note, dated the 12th October, 1844, and payable one day after date, for the sum of $516 39. The cause was tried on issues to the following pleas, viz :— 1. Non-assumpsit. 2. That James Allen, who purports upon the face of the note to have made the same, as the defendant’s agent, acted without the defendant’s knowledge, authority or consent. 3.

Writ of Error to the Circuit Court of Henry. Ation on the case, by Ward against Whitehurst,' for a malicious prosecution, in charging the plaintiff with the crime of larceny by suing out a warrant without reasonable or probable cause. The defendant pleaded — L Not guilty. 2. If Any warrant was sued out, it was from probable cause.' At the trial, the defendant introduced evidence tending to prove — 1. Justification. 2. Probable cause.

The bill was filed by .the defendants in error, judgment creditors of J. E. P. Cowart, to set aside a conveyance made by him of all his property, to William Cowart, alledged to have been made in fraud of his creditors. J. E. P. Cowart being a non-resident, publication was made, and a decree pro confesso was taken against him. A decree pro confesso was also made against William Cowart, upon whom process was served.

Writ of Error to the Orphans’ Court of Franklin. The defendant in error filed his petition in the orphans’ court, alledging that there was “ not sufficient personal estate of the decedent in this State,” within his knowledge “ to pay off and discharge the debts and legacies due from said estate to his creditors.” He then designates certain tracts which he affirms that the intestate owned in fee simple, at the time of his death, which he prays may be sold under an order of…

Writ of Error to the County Court of Tuscaloosa. Motion by the Bank, for judgment against Pattison and Dent, as indorsers of a bill of exchange, drawn and accepted ■by R. Caruthers. The defendants, with other pleas, pleaded payment. At the trial the defendants proved the payment of-dollars.

The plaintiff in error, was indicted for challenging one Calloway to fight in single combat, with deadly weapons.

The defendant in error, by his petition addressed to the judge of the county court, stated, that at the August term, 1848, of that court,… Held: 2 Strange, 648.] If defendant in error stands in such a relation to defendant in action below, as to bring a writ of error, he ought to be made a party defendant, either on motion or scire facias as by the judgment of the court below the judgment rendered in the first instance, is merely recalled and not reversed, and the parties…

Writ of Error to the Court of Chancery for the 16th District. The case made by the bill in this cause, will be found stated in the 8th vol. (Ala. Rep.) 816. The decree dismissing the bill, was there reversed, and one rendered, declaring the heirs of Westmoreland had a lien on the land purchased by the administrator, for the purchase money unpaid, and remanding the cause for a reference to the master, to ascertain the amount of the purchase money remaining due.

Assumpsit, by the defendant in error, as assignee of a promissory note. The plaintiff by leave of the court, was permitted to amend his declaration, by adding the words to the description of the note, “with interest from date,” and thereupon filed an amended declaration, to which the defendant pleaded two pleas, npn assumpsit, and the statute of limitations of six years.

<p>Writ of Error to the County Court of Dallas.</p> <p>This was an action of assumpsit at the suit of the defendant in error. The first count alledges that the defendant, in consideration that the plaintiff would execute to James H. Fiffe a bill of sale for certain negroes, particularly designated, being the mother and her children, and the family of one Lawson Thomas, and the property of the plaintiff, promised to pay to the plaintiff on the execution of the bill of sale, the sum of $475. It is then averred that the bill of sale was executed, and together with the slaves delivered to the defendant, &c.</p> <p>The second count charges, that the defendant having in his- possession for collection, as an attorney at law, certain notes due to James H. Fiffe from the estate of Samuel M. Gantt, deceased, of whom the plaintiff and Sarah Gantt were administrator and administratrix, proposed to the plaintiff, that if he would execute a bill of sale to Fiffe for certain slaves, whose names are mentioned — being the mother and her children, the family of Lawson Thomas, and the property of the plaintiff, then he, the defendant, would pay to the plaintiff the further sum of $475. The execution of the bill of sale, and the delivery of the slaves, are averred as above.</p> <p>It is stated in the third count, that Lawson Thomas was indebted to the plaintiff in the sum of $475, for property before that time sold and delivered him; and the defendant having in his possession funds belonging to Thomas sufficient to pay that sum, in consideration that the plaintiff would execute to James H. Fiffe a bill of sale for certain slaves, described as in the preceding counts, he, the defendant, promised to pay to the plaintiff, on the execution by the latter of a bill of sale for these slaves to Fiffe, the further sum of $475, that being the amount due and owing to the plaintiff by Lawson Thomas. The court then avers the execution of the bill of sale, and the delivery of the same with the slaves embraced by it as in the preceding counts — deduces thence the liability of the defendant, and his promise to pay, &c. To each of these counts the defendant demurred severally, and his demurrer being overruled, he pleaded —1. Non-assumpsit. 2. Want of consideration. 3. Failure of consideration. 4. The statute of frauds. On each of these pleas an issue was joined, and the cause submitted to a jury, who returned a verdict for the plaintiff, and judgment was rendered accordingly.</p> <p>From a bill of exceptions sealed at the defendant’s instance, it appears that defendant, as attorney for James H. Fiffe, held for collection certain notes made by Samuel Gantt, deceased, of whose estate the plaintiff and Sarah Gantt were administrator and administratrix; the aggregate amount of these notes was about $2100. It was agreed by the plaintiff, upon the proposition of the defendant, that the former should settle the notes by selling to Fiffe the family of negroes described in the declaration. While the transaction was in the progress of consummation, the plaintiff objected to going on with it, stating that one Lawson Thomas, a free negro^" who was the husband of the woman and father of the children about to be sold, owed him $475, and he feared he would not be able to collect it of him, if he allowed his wife and children to go — that being the only hold on him. Lawson being present, admitted that he owed the plaintiff the sum stated. The defendant then said to the plaintiff that he had Lawson’s effects in his hands, and if the bill of sale was executed, he would see the debt paidplaintiff said that would not do, but defendant must say he would pay it. To which the defendant assented, adding, “ I have the money in my pocket, and will pay as soon as you make the bill of sale,” The plaintiff then executed the bill of sale, and handed it to, the defendant; the defendant then receipted the notes, and left them on the table. Plaintiff then demanded the $475, to which the defendant replied that he did not know so well about that — plaintiff then remarked that he could and would endeavor by law to make him pay, and the defendant answered that he could try it. After this conversation, and on the same day, the defendant took one of the slaves home with him, and on the next day the others were sent to him. In a deposition of the witness who narrated in open court the above facts, which had been previously taken, it was stated that at the time of the defendant’s refusal to pay the $475, all the papers were lying on the table ; and that she did not see, hear or know of any discharge or acquittance of Lawson from the payment thereof.</p> <p>The slaves referred to belonged to the estate of the intestate, Samuel Gantt, of which the plaintiff and the witness were the representatives, as stated above. There was no evidence of their sale at auction, or under the authority of the orphans’ court, though the plaintiff was to take them at their value, which had been returned to that court — was in possession of them and claimed them as his own.</p> <p>There was no evidence that the defendant had any effects of Lawson in his hands, except as above stated. On the evening of the day on which the bill of sale was executed, the plaintiff sent to the person having charge of a tin box of Lawson’s, which contained some notes and accounts of the latter, for the most part, if not entirely valueless, to inquire of Lawson’s ability to pay, and Lawson procured the box and went off in the direction of the plaintiff’s house.</p> <p>After all the foregoing had taken place, the plaintiff spoke to Lawson about paying him some money — how much or on whakaccount, witness could not state, and said to Lawson if he did not pay it he would kill him, or words to that effect.</p> <p>The defendant acted in the purchase of the slaves as the attorney or agent of Fiffe, to whom the bill of sale was taken — and there was no evidence that he transcended his authority. A witness who stated that he was the agent and guardian of Lawson, testified that he did not know of any of the effects of Lawson having gone into the defendant’s hands, and if any had been received by him, he thinks he should have known it. The bill of sale recited as its consideration, the payment to the plaintiff of $2073 by Fiffe, who purported to be the purchaser. There was no proof that any one interested in the slaves ever objected to the sale of them by the plaintiff, that Fiffe had ever been disturbed in the enjoyment of the property, or that he was dissatisfied with his title, or demanded a better one.</p> <p>The court charged the jury as follows : 1. if Lawson owed the plaintiff.$475, and the defendant proposed to the plaintiff to purchase from him the family of negroes embraced by the bill of sale, and the condition upon which the latter acceded to the proposition was, that besides receipting for and delivering up the notes in favor of Fiffe, against the estate of Samuel Gantt, deceased, he (defendant) should pay him the sum of $475, the amount of Lawson’s indebtedness, and to this the defendant assented, and promised payment, upon the sale being consummated by the execution of a bill of sale ; and thereupon the plaintiff, upon the faith of that promise, made and delivered such bill of sale, then the undertaking of the defendant was an original promise, and was not under the statute of frauds such a contract as should necessarily be in writing, in order to impart to it validity.</p> <p>2. The defendant prayed the court to charge the jury, that if the negroes referred to, belonged to the intestate’s estate, and the plaintiff was one of the administrators of that estate, then he had no right to take them at the appraised value, or to sell them otherwise than at a public sale ; and a sale otherwise made by the plaintiff to Fiffe was illegal, and did not constitute a good consideration for the defendant’s promise ; and if no other consideration was shown, they should find for the defendant. This prayer was denied; and the jury were charged, that as between the parties to this suit, if the proof showed, that at the time of the sale the plaintiff was in possession of the slaves, claiming and treating them as his own, and sold them as such, the sale would constitute a good consideration for the defendant’s promise.</p> <p>3. The defendant also prayed the court to charge the jury, that if at the time of the sale, the slaves belonged to the estate of the intestate, the plaintiff had no right to sell them at private sale to Fiffe, and if the promise of the defendant to pay the four hundred and seventy-five dollars was made in consideration of plaintiff’s making such sale, or executing the bill of sale under the circumstances, then the consideration was not sufficient to support the promise. This prayer was denied.</p> <p>4. The defendant further prayed the court to charge the jury, that if the defendant did promise to pay the $475, yet to be binding on the defendant, the promise should be supported by a sufficient consideration moving to him; and that if the promise was verbal, it should appear that the original debtor was discharged, and there was a new consideration. This prayer was also denied.</p> <p>5. The defendant then asked the court to charge the jury, that, if the promise to pay the $475 dollars was to pay out of the effects which he had of Lawson, and it was shown that such effects were worthless, or insufficient, there could be no recovery against the defendant beyond the value of such effects. This charge was refused on the ground that it was abstract — there being no proof that the promise was thus qualified, but the evidence showed an undertaking to pay the full amount of the $475, with an assertion that he had the money in his pocket, and would pay as soon as the bill of sale was executed.</p> <p>6. The defendant also prayed the court to charge the jury, that he had the right any time before the consummation of the contract, to retract his promise as to the $475, and if he did so before the delivery of the negroes, the plaintiff could not recover. This prayer was denied, and the jury were instructed that the defendant could have retracted previous to the consummation of the contract, but the contract was perfected by the execution and delivery of the bill of sale, and without a delivery of the slaves.</p> <p>To the refusals to charge as prayed, and to the charges given, the defendant excepted, and now assigns for error the overruling of his demurrer to the declaration, and the rulings of the court, as shown by the bill of exceptions.</p> <p>made the following points : 1. The several counts of the declaration do not alledge a sufficient consideration to support the supposed promise of the defendant. 2. If the promise of the defendant was to pay in consideration of the sale of the ne-groes, and the execution of the bill of sale, the court should not have charged that the execution of the bill of sale entitled the plaintiff to recover. 3. The promise is within the statute of frauds; because it was not in writing, and supported by a consideration. [Nelson v. Boynton, 3 Mete. R. 396; McKenzie v. Jackson, 4 Ala. Rep. 230; Puckett v. Bates, Id. 390; Hester v. Wesson, 6 Id. 415 ; Brown v. Barnes, Id. 694.] 4. The sale of the property of the intes-f tate by his administrator, at private sale, and without an or-| der of court, is unauthorized, and passes no title to vendee. | [Weir v Davis ^-Humphries, 4 Ala. 442; Dearrnan v Dearman,; Id. 521; Clay’s Dig. 223, § 13.] Such a sale is contrary to,the statute, in violation of public policy, and a promise founded on it is void. [Story on Con. §§ 137, 139, 218, 220; Wheeler v. Russell, 17 Mass. 258, 281; Warren v. M. Ins. Co. 13 Pick. Rep. 518 ; White Franklin Bank, 22 Id. 181; Atlas Bank v. Nahant Bank, 3 Mete. Rep. 581; Williams v. Woodman, 8 Pick. Rep. 78 ; Carrington v. Caller, 2 Stew’t Rep. 175; Black & Manning v. Oliver, 1 Ala. Rep. N. S. 449; O’Donnell v. Sweeny, 5 Id, 467.]</p> <p>5. To take the case out of the statute of frauds, there should not only have been a consideration, but the original debtor should have been discharged. [Jackson v. Rayner, 12 Johns. Rep. 291; Simpson v. Patton, 4 Id. 222; Tillot-, son v. Nettleton, 6 Pick. Rep. 509; Watson v. Randall, 20 Wend. Rep. 201; Anderson v. Davis, 9 Term. Rep. 136 ; Sinclair v. Richardson, 12 lb. 33; Simpson v. Nance, 1 Spear’s Rep. 4, Matson v. Wharam, 2 T. Rep. 80; Carlow v. Moss, 1 Bailey’s Rep. 14; Rogers v. Collier, 2 Id. 581.] 6. The charge that was denied on the ground that it was abstract, should have been given — it affirmed the law correctly, and was warranted by the facts. [McKenzie v. Jackson, 4 Ala. Rep. 230.] 7. The defendant might have retracted his promise any time before the contract was consummated, and the proof shows that he did so. [Story on Con. <§> 83; Mactier v. Frith, 6 Wend. Rep. 103; Bruce & Bruce v. Pearson, 3 Johns. Rep. 534; Tuttle v. Love, 7 Johns. Rep. 470.]</p> <p>made the following points : l. The declaration is good. The law which governs a subsequent promise to pay the debt of a third person will be found in the following cases. _ The declaration conforms to it. [McKenzie v. Jackson, 4 Ala. 230 ; Hester v. Wesson, and Brown v. Barnes, 6 Ala. 415 and 694,- Leonard v. Yredenburgh, 8 J. R. 31, top page; Meech v. Smith, 7 Wend. 315, (analogous,) General Principle by Kent, 3 Kent, new ed. 122.] 2. The subsequent promise of Fambro was an original undertaking. 3. If the property sold to Fife, through Fambro his agent and attorney, belonged to the estate of Samuel Gantt, of which plaintiff below was administrator, Fambro having taken plaintiff’s individual bill af sale for the same, regarded him as the owner, and never having returned the negroes, he is estopped from denying the ownership of Gantt, the vendor. See Shattuck v. Gregg, 23 Pick. 88 ; Smith v. Cudworth, 24 ib. 196; Beersley v. Hamilton, 15 ib. 40 ; Robertson v. Mansfield, 13 ib. 139; Riley v. Million, 4J. J. Marsh. 395; Hayle v. McCoy, 7 J. J. Marsh. 138 ; Riley v. Million, 1 Dana, 359; Bush v. Whitney, Washburn’s (Ch.) Digest, 312, $ 19 ,• Worthington, et al. v. McRoberts, et al. 7 Ala. R. 814. 4. It was not necessary that the original debtor be discharged. This is only necessary where there is no new consideration. [Fairley v. May, 4 Cowan, 432; Cleveland v. Farley, 9 ib. 639; Rogers et al. v. Kneeland, 13 Wend. 115.] Where there is no new consideration, the original debtor should be discharged, (to take the case out of the statute,) in order to make it a case of harm to the promisee. 5. A delivery of the negroes not necessary to the consummation of the contract. The bill of sale was sufficient. [Starke v. Kenan’s ex’rs, 6 Ala. Rep. 773.] If the promise is upon a new consideration, it is not necessary to be in writing. [15 Pick. 166; 27 Mass. Rep. 122; 7 Har. & J. 391 ; 5 Greenl. 81.]</p>

Writ of Error to the Circuit Court of Fayette. Trespass for breaking the house and carrying off goods, by Ishe against Waddle, et al. The defendants pleaded not guilty, and a former acquittal of the same cause of action. At the trial, the defendants produced the warrant and proceedings in a suit brought against them by Ishe before a justice of the peace purporting to be a suit for damages for breaking the house, &c. in which judgment was given against the plaintiff for costs.

The bill was filed by the plaintiffs, to redeem a tract of land described in the bill, under the act of 1842, which had been sold under execution, against one Nicholas Scales, and purchased by Thadeus Scales, the defendant in error.

Writ of Error to the Circuit Court of Dallas. Upon a suggestion to the orphans’ court of Dallas, by the plaintiffs, two of the legal voters of township 17, in range 12, situated in that county, that the defendant, a commissioner of the same township, had collected funds belonging to the township which he had failed to pay over, it was ordered, on motion of the plaintiffs, that a citation issue requiring the defendant to appear before the court on the second Monday in July…

Writ of Error to the Court of Chancery for the 4th District.

This was a case agreed, presenting the following facts: That on and previous to the 4th May, 1844, the plaintiff was administrator of the estate of one George Clanton, which was reported insolvent.

Writ of Error to the Circuit Court of Montgomery. This was an action of assumpsit at the suit of the plaintiffs in error, to recover of the defendants the difference in value between a sum of money collected by them as attorneys at law for the plaintiffs, in bills of the Bank of the State of Alabama and its branches, and specie funds. The declaration also contained the common counts.

Writ of Error from the Circuit Court of Mobile. Action on the c'ase, by McCrory, against Hosea. Several of the counts are against the defendant as common carrier, .and alledge the delivery to him by the plaintiff of a letter ■containing f 183 15, to be safely carried from Mobile to Pick-ensville. In other counts, the money is charged to have been deposited with the defendant, to be re-delivered to the plaintiff on request, as well as to be kept with due and proper care.

Writ of Error to the Orphans’ Court of Greene. On the final settlement of the accounts of the defendant in error, as guardian of Joseph H. Bryant, it appeared that the guardian had received for his ward a large sum of money. There was no evidence to show that he had lent, or attempted to lend the money so received by him.

Writ of Error to the Circuit Court of Perry. This was a proceeding by scire facias against the defendant in error. It appears by the record, that the defendant, at the spring term, 1845, of the circuit court entered into a recognizance with Solomon S. Horton, who was indicted for the murder of James B. Tutt; conditioned for the appearance of Horton at the then next term of the court, under the penalty of four thousand dollars. .

Writ of Error to the Court bf Chancery for the eleventh Chancery District. The case made by the bill’ is this : In December, 1842, the complainant obtained a decree against one Wyman for the foreclosure of a certain mortgage, and the sale of the mortgaged premises. Under this decree, the premises were sold, and purchased by Furness for $2525.

The bill was filed by the appellees, to foreclose a mortgage executed, to-wit, on the 29th March, 1828, by Charles Brown and wife, on certain property in the city of Mobile, to secure… Held: that the effect of the bill is to show, she was appointed by the authority of Alabama, the answer of Holman denies the appointment by this State, and alledges she was appointed by Massachusetts. The proof of the complainant shows she was' appointed by the authority of Massachusetts only.

The appellant alledges in his bill, that he is a creditor of Aaron Haynes upon different demands, which may be thus classed: 1.

Writ of Error to the Court of Chancery for the fourteenth District. Held: that the property in controversy should be sold, and its proceeds distributed between the parties, on the basis of an agreement between them, dated the 17th February, 1842. This agreement provides, 1. That certain slaves therein named, shall be bid off by the trustees, and conveyed to In-gersoll, without further consideration. 2.

On the 7th January, 1847, a writ oí fieri facias issued from the circuit court of Barbour, against Duncan McRae, and others, on a judgment previously rendered, in favor of the plaintiff in error, which was made returnable to “ our next circuit court, to be holden for said county, on the third Monday in October next.” The sheriff returned the execution into the clerk’s office on the 14th April, 1847, and at the spring term, 1847, the defendant moved to quash the execution,…

Writ of Error to the Circuit Court of Lowndes. Held: that a purchase of stock, or a gift by the husband, for the joint use of the husband and wife, is a gift to the wife. [1 Roper’s H. and W. 41, or 55 Jacobs’ ed. 1841.] 7. The words of this settlement, declaring the uses if the ■cestui que trust were not husband and wife, would be a joint tenancy. [Fearne, 268; 4 Kent, 357-8.] 8.

Writ of Error allowed by this Court to the Circuit Court of Butler. INdictment against Benjamin Hughes and John S. Hughes.The first count is for an assault with intent to commit murder, on one Adams. The second count is for an ordinary assault and battery. At the trial, there was no positive evidence that either of the defendants had committed the assault for which they were indicted.

Judgment by motion of the defendant in error., against the plaintiffs in .error.

<p>1. A charge of stealing hogs, implies malice in the speaker, notwithstanding there is proof that the charge was currently reported, and believed in the neighborhood in which the parties resided. Evidence in mitigation of damages, is proper where the general issue alone is pleaded, and not where the plea of justification is also inteiposed.</p>

At the trial of this cause, the plaintiff, Park, offered to read the deposition of a witness taken under a commission directed to James W. Wilson, and two other persons, directing themi or either of them, to examine the witness on interrogatories annexed to the commission. The same to be returned annexed to the commission, sealed up under their, or either of their seals.

<p>1. “ The south half of section II, township .15, range 9, with the exception of eighty acres at the west end; and a lot donated for a school house, of land in the Coosa land district,” is a sufficient description of the premises sued for, in an action of trespass to try title.</p>

Writ of Error to the County Court of Walker. The defendant in error caused an attachment to be issued against the estate of the plaintiffs, returnable to the county court. At the return term, the defendants below moved to quash the attachment “ for want of a sufficient bond, and other irregularities alledged by the defendants to be apparent on the face of the proceedingswhich motion was overruled and the plaintiff ordered to enter into a new bond.

The writ in this case is in the name of A. A. Dickinson & Co., who are described in the declaration as being Achilles A. Dickinson and James Jones, partners in trading, doing business under the name and style of A. A. Dickinson & Co. The defendant, Bonneau, craved oyer of the writ, and then pleaded the variance between that and the declaration, in abatement.

Rule by the defendants in error, against the plaintiffs in error, sureties of one Curry, sheriff of Marengo county, suggesting, that by due diligence he could have made the money on an execution against one Price, for $1,927, besides costs, which was delivered to the sheriff on the 29th June, 1839, and returnable on the second Monday of November, 1839.

This was an action of assumpsit, at the suit of the defendant in error, on a writing by which Smith & McLelland acknowledged, on the 8th May, 1840, to be due to the plaintiff below, two hundred and ninety-five dollars, in Tombigby Rail Road money. The defendant pleaded, 1st. Non as-sumpsit. 2d. Payment. 3d. Set-off. 4th.

Writ of Error to the Circuit Court of Sumter. Detinue to recover certain slaves. The plaintiff, Kinnard, madé title through a deed executed by S. D. Hooks, on the 11th April, 1845, to him, conveying the slaves in controversy with other property, upon certain trusts which will be hereafter stated.

Novel and difficult question from the Circuit Court of Pickens. Samuel Clark was indicted for playing at cards, in a public place. The evidence was, that the playing took place in the office of a physician, where he exhibited his medicines, received professional calls at all times, and being an unmarried man, where he also ate, and slept. The playing was at night, with closed doors : only a few friends were present, by invitation.

<p>Writ of Error to the Orphans’ Court of Perry.</p>

Writ of Error to the Circuit Court of Sumter. Tkespass to try titles to a certain tract of land. At the trial, the plaintiff, Sims, made title to the land in controversy under a sheriff’s deed, conveying to him the title of one Jacob Sims. ' The defendant made title under a deed of trust executed by said Sims to one Pettigrew, through a sale made by one Thomas, his successor in the execution of the trust.

Trial of the right of property. • The defendant in error, having obtained a judgment against Jacob G. Maull, on the 5th October, 1840, sued out an execution thereon, on the 2d June, 1846, which was levied on a negro girl named Betty, in the possession of the defendant in execution, which was claimed as the property of John T. Maull.- The facts, as shown by the bill of exceptions, are, that the slave went into the possession of the defendant, in February, 1840, by a loan from…

Writ, of Error to the Circuit Court of Mobile. This was a .proceeding by notice and motion, at the suit of the defendant in error, to recover of the plaintiff the amount of a promissory note, of which he was alledged to be the maker. The defendant filed several pleas, and thereupon issues were made up and submitted to a jury, who returned a verdict for the plaintiff below, on which judgment was rendered. On the trial, the defendant excepted to the ruling of the court.

Motion by the Bank for judgment against Lyon and Berry.,, ;as the sureties of one Oliver,, on a note made by them, dated :24th December, 1838, payable the 1st of October, 1839. The. notice is dated 22d October,. 1845, but was not served .until the 28th on Lyon, and the 5th November on Berry. The defendants, with other pleas, pleaded the statute of limitations.

This was an application to the orphans’ court of Sumter, .for a citation to the plaintiffs in error, to show cause, why she should not expose to sale a quarter section of land, the property of her intestate, pursuant to an order of court which she had obtained for that purpose.

Writ of Error to the Circuit Court of Mobile. This was a suit instituted before a justice of the peace by the defendant in error, and removed by appeal to the circuit court, where the cause was tried by a jury, who returned a verdict against the defendants below, and a judgment being thereon rendered, they have prosecuted a writ of error to this court. On the trial, the defendants excepted to the ruling of the presiding judge.

Assumpsit by Marbury against Bradford, for goods sold and delivered. At the trial, a witness for the plaintiff testified, that in September or October, 1844, he was present, when a conversation was had between the plaintiff and defendant, respecting the purchase and sale of the plaintiff’s crop of cotton, of that year. The defendant said, “ I’ll give you six and a half cents a pound for all the cotton you pick out by the 25th December.” To this the plaintiff assented.

The facts, as shown by a bill of exceptions, are, that one Thomas Woolfolk, made his will on the 14th July, 1840, in the following words: “ I give my wife every thing I possess during her widowhood, if she marries, she is to have one third. Not to give security when she qualifies, unless she marries, then to give security. Given under my hand this 14th July, 1840.” Signed by the testator, and attested by two witnesses.

Writ of Error to the County Court of Sumter. The defendant in error declared against the plaintiff on two promissory notes for two hundred and fifty dollars each, to which non-assumpsit and set off were pleaded.

Assumpsit by Stewart against Weaver. No declaration is found in the transcript, but the case seems to have been tried on the general issue to the common counts, and a special count on the contract. At the trial, the defendant gave in evidence a written contract, entered into between the parties.

Motion by the plaintiff in error against the defendant, as sheriff and his sureties, for failing to return an execution. The defendant pleaded, that after the rendition of the judgment, and before the execution issued, the plaintiff had been duly declared a bankrupt. The plaintiff demurred to the plea, and the court overruled the demurrer, and rendered judgment for the defendant, which is the mattar now assigned as error. 1.

Writ of Error to the Circuit Court of Lowndes. This was an action of detinue at the suit of the defendant in error, to recover a female slave named Keziah. The cause was tried on the general issue, a verdict returned for the plaintiff below, estimating the value of the slave at $350, and the damages for her detention at $150, and judgment was thereon rendered.

Writ of Error to the Orphans* Court of Pickens, The supposed errors sought to be revised, are alledged to exist in the record, and proceedings, of the settlement of the estate of Joseph H. Harris, at the instance of Davis, administrator de bonis non. So much of the proceedings as are necessary to show the bearing of the errors assigned will be recited.

<p>Error to the County Court of Mobile.</p> <p>Assumpsit by Charles A. Kelly, against the plaintiffs in error, on the following instrument: “ Mobile, 11 Oct. 1841. Due Charles A. Kelly, or bearer, three hundred and thirty dollars, 29-100, for work and labor done, on steamboat Jewess.</p> <p>(Signed) for steamboat Jewess, and owners.</p> <p>Alphonso Bbooks.”</p> <p>Upon which the following declaration was filed:</p> <p>Charles A. Kelly, &c. complains of Alphonso Brooks, and Levin J. Wilson, joint owners of the steamboat called the Jewess, in custody, &c. For that, &c. on the 11th October, 1841, the said defendant, Alphouso Brooks, for himself and the said Levin J. Wilson, joint owners of the said steamboat, made his certain due bill in writing, bearing date, &c.; and thereby, and then and there, for himself and the said Wilson, as owners of the said steamboat, promised to pay the said plaintiff, the said sum of $333 29. By means whereof, „&e. There was also a count for work and labor.</p> <p>The defendant Wilson pleaded, that since the makirfg^of the note, to wit, on the 20th January, 1842, the plaintiff^vygs declared a bankrupt, by the district court of the United States. To this plea the plaintiff demurred.</p> <p>When the cause came on to be heard, the plaintiff’s attorney suggested to the court, that since the commencement of the action, the plaintiff, Charles A. Kelly, had been duly declared a bankrupt, under the bankrupt law of the United States, and that Ptolemy T. Harris, had been regularly appointed by the district court of the United States, the as-signee in bankruptcy, whereupon the said P. T. Harris was by the court made the plaintiff in the cause. And the demurrer of the plaintiff, to the plea of the defendant Wilson, being sustained, a judgment was rendered in favor of the plaintiff, on the verdict of a jury.</p> <p>A bill of exceptions found in the record, discloses, that the plaintiff offered evidence, tending to prove, that Wilson was an owner of the steamboat, prior to the date of the due bill, and the defendant, Wilson, having offered no evidence, ex-, cept such as tended to show he was not a joint owner of the boat, the court charged the jury, that defendants being sued on a due bill, expressly made the foundation of the action, without a plea, denying under oath the instrument declared on, it is evidence of the debt it expresses. And if there was sufficient proof, that Wilson was part owner, at the time the due bill was given-, this, with the due bill, will bind him upon the pleadings.</p> <p>The court having overruled the admissibility of the due bill as evidence, under the declaration, the defendant moved the court to charge, that although Wilson may have received a written transfer, of a former part owner’s interest in the boat, yet if he was not concerned i,n navigating her, and assumed to exercise none of the rights of an owner, the mere possession of the title, would not make him liable in this action. 2. That the jury were not to regard the date of the due bill, as conclusive evidence, that the work was done at the time it bears date, or that Wilson was owner at that time.</p> <p>' These charges the court refused to give, but qualified the second charge, by saying, that if the due bill bore date during the joint ownership of Wilson, it was in the absence-of other proof on the point, conclusive on him. This was excepted to, and these matters are now assigned as error.</p> <p>By the third section of the bankrupt law, all rights of property of .every nature are by the decree, ipso facto, by mere operation of law, deemed to be divested out of the bankrupt, and the same shall be vested by force of the decree in the assignee. The demurrer to the plea of bankruptcy therefore admits that the plaintiff was incompetent to prosecute the suit.</p> <p>The note offered was variant from the allegation, and was not evidence under the special count, as matters of description are matters of substance when they go to the identity of the instrument. . [1 Greenleaf Ev. 65, and authorities there cited.]</p> <p>It was not necessary to deny the execution of the instrument by plea of non est factum under the statute, for the note is not signed by the defendant, nor by any one for him.</p> <p>Nor does the declaration set forth any execution by a competent authority, as one joint owner of a boat has no authority to bind the other part owners by such an instrument. [Story on Part. 420, 426.]</p> <p>The possession of the title by defendant did not make him liable for the contracts of the boat. [Jones v. Pitcher, 3 S. & P. 169; Leonard v. Huntington, 15 Johns. 298 ; Reynolds v. Toppan, 15 Mass. 372; Thorn v. Hicks, 7 Cowen, 698; Cutler v. Winson, 6 Pick. 339.]</p> <p>The case of plaintiff’s bankruptcy, after commencement of suit, is analogous to the death of the party, and in the absence of any other rule, the statute of this State allowing the personal representative to make himself a party, might be considered as the rule to govern.</p> <p>An assignee of bankrupt is allowed to sue out a writ of error to reverse a judgment rendered against the bankrupt. [Day v. Laflin, 6 Mete. 280.]</p> <p>The plea in this case is amere plea of bankruptcy of the plaintiff, and the suggestion of the bankruptcy upon the record, and the making the assignee a party, may be' regarded as a mere admission of the suggestion of the plea making the proper party, which is authorized by the law of Congress.</p> <p>Plea of bankruptcy properly demurred to because it appeared upon an inspection of the record that the defect was cured. When action was commenced in the name of the bankrupt, before the act of bankruptcy, the assignees may proceed, and if the court can see upon the whole record that the assignees are entitled to recover, they will use their utmost sagacity to give them judgment. [Hewitt v. Mantell, 2 Wilson, 374.]</p> <p>The conclusion of the plea of bankruptcy, viz., that there is no person before the court authorized to conduct the suit, is a mere inference from the former part of the plea, and so regarded by the counsel for the plaintiff in error in his argument.</p> <p>The defendant’s plea may perhaps be properly regarded as a plea in abatement, and seems, in argument, to be so considered by plaintiff’s counsel. If that be the case, then it should have been verified by affidavit, and is bad for the want of it.</p> <p>Pleas, puis darrein continuance, are required to express every thing with extreme certainty; which was scarcely done in this case. [Vicary v. Moore, 2 Watts, 451.]</p> <p>There was no variance between the first count in the declaration and the due bill offered in evidence. It was substantially described, and that is sufficient. [Greenleaf on E. 65, note.] Besides, the point was not raised in the court below, as shown by the bill of exceptions.</p> <p>When a plea denies that a writing declared on is the defendant’s act in law, or in other words, insists that it was not intended to impose a legal obligation or duty upon him, it must be verified by affidavit. [Lazarus, use, &c. v. Shearer, 2 Ala. Rep. 726 ; Sorrelle v. Elmes, 6 Ala. 706.]</p> <p>The first charge asked by the defendant, was properly refused — there being'no evidence to warrant it; also, because the charges given covered all the ground.</p> <p>The second charge asked by defendant, was properly refused, or rather qualified by the court, under the facts as shown in the bill of exceptions.</p> <p>The first charge given by the court, as to the effect of the due bill, and proof of Wilson’s ownership, under the pleadings at bar, was correct, and covered the whole case, and rendered the other charges unnecessary, and inapplicable.</p> <p>When stores were supplied to a ship, on the order of one of several owners, who acted as ship’s husband, and took his note in payment, and gave a receipt in full, held, that ¿11 the owners were liable, the note not being paid. [7 Johns. 311.]</p> <p>The owner of a vessel, as well as master, is liable for re-pairsdone to it. [16 Johns. Rep. 89.]</p> <p>The cases cited by the counsel for the plaintiff in error, will not sustain the idea that the owners of a boat are not liable for the repairs. Besides, they are inapplicable to the case before the court. [See. cases cited by him — also, 4 Pick. 458; Perry v. Osborn, 5 lb. 422 ; Higgins v. Pickard, 2 Hall, 226.]</p>

Writ of Error to the Circuit Court of Covington. A writ of fieri facias was issued against the goods and chattels, &c. of Thomas Loyd and Josiah Jones, requiring to be made the sum of three hundred and seventy-seven dollars damages, and fifteen dollars and 18 3-4 cents costs, which the plaintiff in error had recovered against them- This fi. fa. was levied by the sheriff of Covington, on a negro boy as the property of Loyd ; thereupon Loyd executed a forthcoming bond, with…

Writ of Error to the County Court of Sumter. Assumpsit by Posey, suing by prochien ami, against Hair. The declaration consists of four counts, the three first of which were overruled, on demurrer, and a verdict for the defendant on the other. The overruled counts are very similar, and one only need be stated, as the same ground for exception exists in all.

Assumpsit by the defendant in error, to recover the amount of certain costs, which the plaintiff had been compelled to pay, under the following circumstances: The plaintiff had obtained several judgments against the defendant, and one William Merrill, before a justice of the peace, which he transferred to the defendant, by the following instrument: “For value received, I, John Smyth, do hereby transfer to Jacob Merrill, all my right, title and interest, in, and to eight…

This was an action of assumpsit, at the suit of the defendant in error. The cause was tried on the general issue, with leave to give any special matter in evidence ; a verdict was returned for the plaintiff below, and judgment was rendered thereon.

Writ of Error to the Circuit Court of Shelby. Mason, one of the plaintiffs in error, in March, 1846, petitioned the judge of the county court for certiorari and su-persedeas to remove to the circuit court a judgment obtained by Moore & Tulane, for the use of Moore, against him, be-foi’Q a justice of the peace. The petition does-not state when this judgment was given.

The bill was filed by the plaintiff in error, for the rescission of a contract, for the purchase of a tract of land. He charges, that on the 21st December, 1841, he purchased a tract of land (which is described) from Lemuel Merrill, who represented himself to be the properly authorized agent of the firm of Watson & Co., who it was represented by Merrill, and one Peter C. Harris, were the owners of the land, and in whose names the patent had issued.

The plaintiff in error caused an original attachment to be issued against the estate of John Evans, jr., returnable to the county court, which was levied by the sheriff on two bales of cotton. An affidavit was made by the defendant in error, that the cotton was his property, and bond executed by him as directed by the statute, to try the right.

Writ of Error to the Circuit Court of Talladega. Trover by Driver against Riddle, for fifteen hundred bushels coal. At the trial, there was evidence tending to show a quantity of wood had been cut by the hands in tjie employment of the plaintiff, in the vicinity of a coaling ground, on public land.. There was also evidence tending to show that these hands, when they cut the wood, were in the employment of the defendant.

Assumpsit by the defendant in error. Upon the trial, the' plaintiff introduced the deposition of John T. Abernathy, by which he proved, that he paid a sum of money ove].' to the-defendant, for the plaintiff, and on his account, wly&h money was in the hands of Kirkman, Abernathy & Hanna, belonging to the plaintiff.

A garnishment, issued pursuant to the statute, upon affidavit, that the plaintiff had recovered a judgment, &c. against D. D. Kane and John P. Clark, on which a fieri facias had been issued, and returned “ no property found,” &c., and it was believed the Branch of the Bank of the State of Alabama at Mobile was indebted to D. D. Kane. The garnishee, through its officers, answered, disclosing the following facts. 1.

Writ'of Error to the Orphans’ Court of Marengo. King, in January, 1838, was appointed administrator with the will annexed of William Cabiness. In March, 1839, he returned the estate insolvent. The transcript states this report was accepted, but no formal decree appears, declaring-the insolvency. Subsequently, in 1840. a commission was appointed to audit the claims upon the estate, but nothing seems to have been done under this order.

<p>Error to the Circuit Court of Talladega.</p> <p>The plaintiff sued the defendant before a justice of the peace, and obtained judgment, from which the defendant appealed to the circuit court, where the plaintiff declared in as-sumpsit. On the trial in that court, the following facts were in evidence. The plaintiff’s demand was for the rent of land, for which he was to receive a part of the crop from one Wilson, the tenant. That Wilson sold the crop to the defendant, who removed it from the premises, without paying the rent due for that year, and that the plaintiff had sued Wilson, and recovered a judgment for the rent, which, judgment was still in force, but that Wilson was insolvent.</p> <p>Upon this evidence, the court charged the jury, that if Dulany had brought suit, and recovered judgment against Wilson, the tenant, although the judgment was unproductive, yet having elected to sue the tenant, he could not afterwards resort to his statutory remedy against Dickerson ; and that upon the above facts, they must find for the defendant. This charge was excepted to, and is now assigned as error.</p> <p>1. Tort may be the ground of assumpsit, and will support the action, where there is a contract expressed or implied, and the property is sold by the defendant, or converted to his use. [10 Ala. Rep. 248 ; 5 Greenl. 323 ; 3 Dana, 552 j Clay’s Dig. 506, § 3.]</p> <p>2. The statute gives a remedy in favor of a lessor against a lessee about to remove the crop from the premises, but is silent as to the remedy against any other person after it is removed by him, and it cannot affect the plaintiff’s right that he elected to proceed at common law — both parties were bound for the rent to the plaintiff at any time they had the same in possession, respectively — the ground of the action here is the tortious interference with the plaintiff’s lien, and it is not necessary that the relation of principal and surety should obtain between Dickerson and Wilson, (lessee,) to give the plaintiff a right of action. Dickerson became bound of his own wrong, for the value of the rents, by taking them from the premises, and the recovery against Wilson should not, at all events, bar a recovery against Dickerson, unless there was a satisfaction of the judgment against Wilson.</p> <p>If Dickerson had pleaded a recovery and satisfaction against Wilson, by plaintiff, puis darrein, he could not have had judgment for costs against the plaintiff here. The judgment against Wilson was not for the condemnation of particular property; it was for a sum of money due, and there is nothing in the suit against Dickerson incompatible with the attempt to recover by action of assumpsit against Wilson the amount due for the rent, there being no lien of attachment, or satisfaction of the demand, to render the subsequent suit incompatible with the former. [J. W. & R. Leavitts v. Smith, 7 Ala. 183.]</p> <p>3. There is no such thing as a man’s waiving his right of action, when once a wrong has been committed, and the acceptance of goods converted does not bar an action for the conversion. [Ib. 182.]</p> <p>1. The lien of the landlord does not give him such an interest in the crop as will enable him to sustain assumpsit for the value of the “ rent cotton.” A lien is said to be a right to have satisfaction of a debt out of a particular fund. But until the possession is changed, neither trover nor trespass could be maintained for an injury done to the goods. An execution in the sheriff’s hands creates a lien on the defendant’s goods; yet the sheriff cannot maintain an action for any injury done to them, until after he has levied. An action on the case, by the party having the right, would be the proper remedy. But an action of assumpsit for rent will not lie at common law, except upon an express promise. [Bell v. Ellis, 1 S. & P. 294.]</p> <p>2. But in this case the lien was lost by the landlord’s election to pursue his tenant, Wilson, as a debtor, in the usual manner: and this act was well calculated to mislead the defendant in error, as it did in fact. It was equivalent to an agreement to look to the personal credit of his debtor. [Bailey v. Adams, 14 Wend. 201.]</p>

Writ of Error to the Circuit Court of Barbour. An attachment was sued out by the plaintiff in error, returnable to, the circuit court, and levied by the sheriff’ on a female slave named Elva, and her child Jane, as the property of Cullen Cross, the defendant therein. The defendant in ■error interposed a cl aim to these slaves pursuant to the statute, .■as the trustee of Sarah and Nancy Smith, and gave bond with surety to try the right.

<p>1. Accounts of creditors of the defendant found amongst the papers of the plaintiff’s intestate, receipted by the creditors, are, without aid from other proof, no evidence of the payment of money by the intestate, for the benefit of the defendant, so as to make these accounts sets off</p> <p>2. Nor does it change the effect of the evidence if the receipt expresses to be of the note of the defendant’s intestate. Such receipt, by itself, is no evidence of an assumpsit for the plaintiff.</p>

Detinue by the defendant in error, for a female slave.' From a bill of exceptions, it appears, that the plaintiff below deduced his title to the slave, as a purchaser at a sale made under a mortgage, or deed of trust, executed by one John Davis, to William Blount and Felix Stanley, to secure the payment of a debt there recited.

Writ of Error to the Circuit Court of Perry. On the 26th of April, 1843, the defendant in error caused a garnishment to be issued against the plaintiff, upon an affidavit that he was believed to be a debtor of John Scarbrough, against whom the plaintiff below had obtained a judgment, and who had no property from which it could be satisfied.

Writ of Error to the Circuit Court of Talladega. Trespass to try title by Scales against Alvis. At the trial, the plaintiff made title to the land in controversy, through a deed made by the collector of taxes of said county, under these circumstances, to wit: The land was patented to one Nicholas Scales, in August, 1837, and with other lands and personal property of said Nicholas was assessed for his taxes in 1842.

The defendant in error, sued out execution against Charles E. R. Strode and Harriet S. Strode, which was levied on certain slaves, and thereupon, Matthew Houston, as the next friend of the plaintiff in error, made affidavit, that he verily believed the property levied on, belonged to certain minors who are named, and prayed a trial of the right, and also executed a bond with surety, conditioned as the statute directs, in cases of trial of the right of property.

Writ of Error to the Circuit Court of Fayette. This was an action of covenant at the suit of the defendant in error, against Lester and his surety, on the official bond of the former, as a justice of the peace.

The defendant in error, having reported the estate of his intestate insolvent, and having made his final settlement of the estate, objected to the claim of the plaintiff in error, because it was not filed with the clerk of the court within six months, after the report of insolvency, as required by law ; and thereupon the plaintiff introduced the clerk of the court, who deposed, that the attorney of plaintiff placed the claim in controversy, and several others with him. about…

Writ of Error to the Circuit Court of Lowndes. A WR.it of fieri facias, issued from the circuit court against the goods and chattels, &c. of C. B. Easley, which was levied on a male slave named George, about two years of age. Thereupon, the defendant in error interposed a claim, and entered into bond with surety, conditioned to try the right of property pursuant to the statute'.

Assumpsit by the plaintiff, against the defendant in error. From a bill of exceptions, it appears the following facts were in evidence. About the year 1839, the defendant held a note on one Berry Pace, which he transferred to one Si-monds, and indulged him upon it one year, on his giving him sixteen per cent, per annum ; at the end of the year he indorsed the note to plaintiff.

Writ of Error to the Orphans’ Court of Cherokee. In October 1844, the plaintiff made a final settlement of his accounts as administrator of the estate of Thomas Lan-dreth, deceased, with the orphans’ court — having previously filed as vouchers with his account, certain receipts for money paid the guardian of the infant distributees of that estate, for which .he claimed a credit.

Teespass vi et arms, by defendant in error, for seizing and carrying away three slaves. The plaintiff proved the taking of the slaves from his possession, in August, 1842, by the defendant as coroner, and their value.

Writ of Error to the Circuit Court of Pickens. This was the trial of the right of property under the sta- * tute, and was before this court at a previous term. [10 Ala.

Assumpsit by the defendant in error, for a false warranty of soundness in the sale of a slave.

Writ of Error to the Circuit Court of Talladega. Held: that the clauses of the will now in question, invested Mrs. Driver with a life estate in the property, which might be sold to pay the husband’s debts. That case is not reported, but the levy in that now before the court was influenced by it.

This was an information in the nature of a quo warranto, instituted by the direction of the Governor, in virtue of an act of the Legislature passed 13th February, 1843, to' inquire whether the charter of the bank was not forfeited, in consequence of the refusal of the bank to redeem its bills, and obligations, according to' the promise therein expressed, on demand.

The bill was filed by the defendants in error, and alledges, that W. & J. Farmer executed a voluntary deed of assignment to the plaintiff in error as trustee, by which deed they conveyed to him all their goods and chattels, and property of every kind, real and personal, in trust for the benefit of their creditors, which the trustee was to convert into money, and discharge certain debts in the order named in the deed, these creditors being divided into eight classes.

Assumpsit by the defendant in error, against the plaintiffs in error, to recover the value of an improvement, or right to the entry of land, under an agreement of the following tenor: Ladiga, May 12, 1840.

<p>1. A notice of the dishonor of a note, given to the executor of an indorser, before he has qualified as such, is not such a presentment, as will take the case out of the statute of non-claim.</p>

Tbial of the right of property, in which the plaintiff in error was claimant. The plaintiff levied an execution on certain slaves in the possession of Mahala May, the defendant in execution, and on the trial gave in evidence the will of James B. May, dated 22d September, 1838, as follows: “ It is my wish and desire, that all my just debts be paid. ' It is my wish that my property should be kept together on my plantation, under the superintendance of an overseer.

The bill was filed by the plaintiff in error, to redeem certain slaves upon an alledged mortgage, existing between the defendant in error, and one Giles M. Mallett,. a bankrupt, whose interest the plaintiff asserts by a purchase, and conveyance from the assignee in bankruptcy.

Detinue by the defendant in error, against the intestate of the plaintiff in error, to recover a number of slaves. Upon the trial, as appears from a bill of exceptions, the plaintiff, to prove the execution of a mortgage by the defendant, introduced one of the subscribing witnesses thereto, who stated that his signature was genuine, and that the instrument was either subscribed in his presence, or acknowledged by Bell to be his signature at the time he subscribed his name.

The bill was filed by Reuben Hill, the plaintiff in error, to set aside a will purported to be executed by Josiah Hill, brother of complainant. The bill alledges that the deceased was of unsound mind, and memory, for a considerable time previous to his death. That he was exceedingly weak in body and mind, and was influenced by John Barge to make the will, which was executed a few days before his death, he being then incompetent to make a disposition of his property.

Writ of Error to the Comity Court of Mobile. This was an action of covenant at the suit of the defendants in error.

The bill was filed by the plaintiffs in error, to foreclose a mortgage, alledged to have been made by E. & I. Dansby ; on certain slaves, and alledges a sale by the complainants to E. & I. Dansby, of certain slaves, which were to be paid for at certain periods, and for the payment of which certain bills of exchange were drawn.

<p>1. A demurrer to the declaration does not reach the objection that the cause of action is ona for which attachment will not lie. The proper mode of presenting that question is by a rule on the plaintiff, to show cause why his attachment should not be disvlosed.</p> <p>2. When an attachment is sued upon a debt not due, the declaration should not be filed until the maturity of the contract.</p> <p>3. One employed to act as pilot on a steamboat, who is willing, and ready, and offers to act as such, but whose services are refused, may, after the expiration of the term of service, recover the value of his services in ira-debitatus assumpsit, and need not alledge any excuse for not performing the contract on his part.</p>

<p>Error to the Circuit Court of Limestone.</p> <p>The plaintiff in error, a colored man, sued for his freedom, and upon the trial of the cause, proved, that by the will of William Patterson, of the State of Delaware, a negro slave woman named Phillis, was bequeathed her freedom, and providing that she should remain in servitude, until she became thirty-one years of age; and that such a will was legal in Delaware. That she was carried to the State of Tennessee during the term of her servitude, and that whilst there, and before she attained the age of thirty-one years, she gave birth to the plaintiff, who was sold to the husband of the defendant, who was an innocent purchaser, and that the defendant has held him as a slave, since her husband’s death.</p> <p>The court, at the instance of the defendant, charged the jury, that if they believed the plaintiff was bora before his mother attained the age of thirty-one, he was born in slavery, and was not entitled to his freedom. To this charge the plaintiff excepted, and this is the matter now assigned as error.</p> <p>In the case of a life estate and a remainder man a child born pending the life estate goes to the ulterior legatee. [Wheeler’s Law of Slavery, 23 ; Erwin, and others, y. Kil-patrick, et al. 3 Hawkes’ N. C. Rep. 456; Tims v. Potter, Martin’s N. C. Rep. 22; Preston v. McGaughy, Cook’s Rep. 113; Harris v. Clarissa, 6 Yerger’s R. 227.] This last case is in full, and on review of all the cases relied on by counsel for defendant in error. [Wheeler’s Law of Slavery, 34, section 10; Jacob v. Sharp, Meigs’s Rep. in Ten. ’38, ’39, p. 114; Harrell v. George, 3 Hump. R. 255; Isaac v. Frost’s Ex’r, 6 Randolph, 652.]</p> <p>A testator directs that a female slave shall be free at a certain, period — her children born before that period, and after' testator’s death, are slaves. [Ned v. Beal, 2 Bibb, 298.]</p> <p>A, by will, bequeathed her slave Mary to B, for life, and that at B’s death, Mary should be free. During the life of B, Mary has issue — they are slaves. [Chew v. Gary, 6 Harris & Johnson, 526.]</p> <p>A slave who has a deed of emancipation, under which she is to be free at the grantor’s death, is in the meantime a statu liber, and children born from her, meantime, are slaves. [8 Martin’s Lou. Rep. 218 ; Law of Slavery, 206; to the same effect, 4Leigh, 252; 10 Id. 277; 6 Rand. 652.]</p>

<p>Writ of Error to the Circuit Court of Marengo.</p> <p>insisted that the indictment did not charge an offence known to the law, and cited Clay’s Dig. 437, § 8; 4 Porter, 410; 1 Bailey’s Rep. 144; 2 Hill’s (S. C.) Rep. 459; 6 S. & R. Rep. 5.</p>

The bill was filed by the plaintiff in error, and alledges, that in the year 1839, she purchased of her son Oswell E. Burt, one hundred acres of land, which is described, for which she paid him $ 1,250. That the son represented to her at the time, that he had a good title to the land, holding the fee simple title, and that she was ignorant of any incum-brance upon it.

Writ of Error to the County Court of Lauderdale. This was an action of assumpsit at the suit of the plaintiff in error, against the defendant, upon the indorsement of her intestate, on a bill of which he was the payee.

E. L. Akdkews & Co. having obtained a judgment against William F. Gee for $1,808 17, besides costs, made the necessary affidavit, and obtained process of garnishment against F. K. Beck, administrator of S. Burnett, and John R. Me* Dowell, as debtors of Gee. McDowell appeared, and answered in writing, in substance, that in February, 1845, he made an agreement to purchase certain lands of Gee, for which he was to pay $2,250.

Writ of Error to the Circuit Court of Fayette. This was a suit commenced by tire plaintiff in error, before’ a justice of the peace, and removed by appeal to the circuit court. The cause of action is a promissory note, by which' the defendant, on the 27th October, 1840, promised to pay to the plaintiff the sum of thirty-five dollars, on the 25th December thereafter.

Assumpsit by the plaintiff in error, on a promissory note of the defendant’s intestate. Plea of the statute of non-claim. Held: that the special, like general statute of limitations simply bars the remedy, but does not extinguish the debt. By a dictum, they say, that in neither case will a promise by an administrator, to pay the debt, revive the remedy.

This was an action of debt at the suit of the defendants on a bond executed by the plaintiff, and Abram Borland, on the 16th April, 1844, in the penal sum-of four thousand dollars, for the prosecution of a writ of error, by which the record and proceedings of a cause in chancery were returned to this court for revision.

The plaintiif in error, was indicted and convicted, in the circuit court of Tallapoosa county, for the murder of her husband. In the course of the trial, a bill of exceptions was taken, and the cause brought to this court by writ of error. The bill of exceptions discloses the following facts.

This was an action of assumpsit by the plaintiffs in error, against the defendants in error, and was here at a previous term of this court. [10 Ala. 142.] The facts as they now appear, are, that the defendants in error, as attorneys at law, received from the plaintiffs a note for collection on Lamkin, Gilkey & Co. for $146 26, payable to the order of Jeremiah Boyd, and indorsed in blank by him.

Writ of Error t-o the Circuit Court of Tuscaloosa. The plaintiffs in error brought an action of debt against the defendants, in .the circuit court of Tuscaloosa comity, ¡and declared on a bond by them executed, and conditioned, that if Edward F. Comegys, one of the defendants, should perform all the duties required of him as cashier of said bank, then-said bond-to be void, otherwise to remain in full force; .and then by way of breach of .condition, set forth that certain…

Assumpsit by the defendant, against the plaintiff in error. Upon the.trial, as appears from a bill of exceptions, Sergeant, administrator of the estate of Edmund O’Reilly, paid to Wilson, adm’r de bonis non of the estate of P. O’Reilly, $2,296 87, in part discharge of a decree, which had been obtained in the orphans’ court of Franklin, in favor of the estate of the latter, against the estate of the former.

<p>Appeal from the Court of Chancery at Huntsville.</p> <p>The material allegations of the bill are. that complainant and defendant, on the 15th December, 1840, entered into the following contract: The said Preston Capshaw, promises to pay to .Tames W. Fennell, $2,450, for which he has given his notes, half payable on the first of March, 1841, and the other half payable the first of March, 1842, for the tract of land on which said Fennell now lives, containing 300 acres, more or less, and the said Fennell hereby obligates himself, in the penal sum of $4,900, to make unto Capshaw, a good title to said land. The bill also alledges, that previous to the sale, the said Fennell represented to the complainant, that the tract of land contained 300 acres, and attaches as an exhibit, a letter of the defendant, addressed to complainant, in which Fennell proposes to sell the land, and in this letter it is stated, that he owned 300 acres. The bill also alledges, that the complainant took possession of said land after the con-? tract, and has paid the first note described in the contract, and the greater part of the second note, and on the 3d March, 1843, executed a new note for $346, being the balance due on the second note, and to recover the residue, suit at law was brought by Fennell, against complainant. It is further ailedged, that the tract of land contained only 282 acres, and that this was known to Fennell at the time of entering into the contract, and of making the representation that it contained 300 acres. That the tract of land originally contained 304 acres, but that 22 acres were sold off, and detached from the tract before Fennell purchased it, and that the title deed, or bond for titles held by Fennell, showed the quantity to be 282 acres. The bill admits that complainants accepted a deed for the land, from one John Simmons, in whom was the legal title, which bears date the 22d March, 1842, and specifies the tract of land by metes and bounds, and states the quantity to be 304 acres, less 22 acres, particularly described, and previously sold to one Howell. The bill prays an injunction against the suit at law, for the recovery of the amount of the purchase money unpaid, and for compensation for the difference betweeen 300 and 282 acres — the actual amount conveyed to complainant.</p> <p>The answer admits the execution of the contract, and that the defendant represented to the complainant, that the tract of land contained 300 acres, but denies that he knew it contained less; or that he had in his possession any deed, or title bond that would show that fact ; but states that he had no written title, or bond for title, and always believed that the tract of land contained 300 acres. Denies that the sale was by the acre, or that the precise quantity of land was the inducement to the contract; and insists on the reception of the deed, from Simmons, without objection, as evidence thereof.There was some testimony taken to show the quantity of the •land.</p> <p>The vendee of land has a right to receive a title, so far as the vendor has title, and to demand compensation for such •portion contracted to be sold, to which the vendor has no title- [2 Bibb, 410; Jones v. Shackleford, Marshall, 494; 9 Johns. 460, and many other cases.]</p> <p>contended — 1. That the contract ■of sale was not by the acre, but a contract for the tract of land, for a gross sum, and that as there was no ffaud in the contract, the bill was properly dismissed.</p> <p>2. That complainant having accepted the deed from Simmons, which showed the deficiency on its face, without objection, he could not now seek compensation for such deficiency.</p>

Ejectment by the defendants, against the plaintiff in error.- Upon the trial of the cause, as appears from a bill of exceptions, the plaintiffs, to show their right to sue, and in support of the issue, offered in evidence a decree, purporting to-be made by the chancellor of the Tuscaloosa district, on the 10th November, 1842, in the case of Reese, et al. v. James-McCown, and others, by which he appointed the plaintiffs, trustees, in the place of James McCown, to execute…

Writ of Error to the Chancery Court of the 30th District, Northern Division. The defendant in error filed his bill against James M. Coopwood, Bennett Driver, and Samuel (Henderson, the material allegations of which are, that Coopwood, and Driver, in the year 1836, were appointed administrators of the estate of John Reynolds, by the orphans’ court of Lawrence county.

Writ of Error to the Circuit Court of Pickens. Tbial of right of property. The plaintiffs in error sued out execution on a judgment, against James, and Elizabeth Tanner, which was levied on certain slaves, claimed by the defendant in error as the trustee of Elizabeth Tanner.

The plaintiff below, declared against the defendants, on a bill of exchange, dated 29th August, 1838, due at nine months, drawn by P. F. Pearson, directed to Kirkman, Abernathy & Hanna, New Orleans,… Held: that the loss of the bill, after it fell due, will not entitle the plaintiff to recover. [272.] made the following points : • 1.

Covenant by the plaintiff in error. Prom a bill of exceptions taken at the trial, it appears, that the plaintiff purchased a tract of land of one Henry F. Arrington, sen. who in-informed him at the time, that he had not a legal title to the land, and offered to execute to him a bond for title, which the plaintiff declined, saying he preferred a deed. At this time Arrington was solvent, but afterwards, and before the purchase money became due, was insolvent.

This was an action of detinue, brought by the plaintiff, to recover of defendant, certain slaves. On the trial, the plaintiff read in evidence a bill of sale, executed to him for the slaves, by George L. Patrick, bearing date the 9th January,, 1845. At the date of the instrument, the slaves were in possession of Patrick, and belonged to him. The consideration expressed in the bill of sale, is $1,200.

The motion was originally made in the county court of Perry, and transferred to the circuit court, the judge of the county court being interested. On motion of the defendant’s counsel, the court refused to take jurisdiction, and dismissed the cause, which is the matter now assigned for error.

<p>1. The plea of accord and satisfaction, is not an admission of the cause of action, when the general issue is also pleaded.</p> <p>3. One who receives goods as a warehouseman, from one who obtained them by the commission of a trespass, and on demand, refuses to deliver them to the owner, is not liable to be sued in trespass. Trover, or detinue, is the appropriate action.</p>

<p>Error to the Circuit Court of Greene.</p> <p>The facts of the case appear sufficiently in the opinion See the case previously reported 9 Ala. 228.</p>

Writ of Error to the Orphans’ Court of Sumter. The record presents the following statement of facts. The plaintiff in error was appointed by the orphans’ court of Sumter county, administrator ad colligendum, of the goods that were of Nancy Flora, who in life was the plaintiff in error. It then shows, that citations, from time to time, were issued ■to him, requiring him to file an inventory of the estate, but were not served on him.

<p>1. The lien of an attaching creditor, on land, is superior to the title of a purchaser under a subsequent judgment with notice of the levy of the prior attachment.</p>

Novel, and difficult questions, from the circuit court of Macon. The defendant was indicted for an assault upon a constable, and pleaded not guilty. Upon the trial, it appeared in evidence, that the constable went to defendant’s house, to levy an execution, and attempted to levy it on a mare in his possession.