Volume 13 — Alabama Reports

Writ of Error to the Circuit Court of Lawrence. Before the Hon. G. W. Lane. Hansell brought an action of assumpsit against Yaliant, in the circuit court of Lawrence. The defendant appeared, and pleaded the general issue. At the September term, 1844, the death of the defendant was suggested, and Amos P. Galloway, sheriff, and administrator ex officio, was made a party defendant.

Before the Hon. G. W. Lane. ' Assumpsit by defendant in error, who was plaintiff below, against Tho. Tenison.

Writ of Error to the Circuit Court of Dallas. Before the Hon. Geo. Goldthwaite. 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 the north east quarter of section twenty-seven, in township sixteen of range twelve, situated in the county of Dallas, as to recover damages for its occupancy.

Before Hon. G. W. Stone. The plaintiff below, brought trover against the defendant, in the circuit court of Pickens county. The writ was issued in April, 1845.

Before the Hon. G. W. Stone. Trespass to try title, instituted in the circuit court of Sumter county, by Andrew Glassell, against the plaintiff in error, to recover possession of certain land, particularly described in the writ and declaration, and damages for their detention. The cause was submitted to a jury, and a verdict was returned for the. plaintiff below, for the land and §238 20 damages, upon which judgment was rendered.

Writ of Error to the Orphans’ Court of Shelby. The questions now presented to this court arose upon the final settlement of the accounts of the defendant with the orphans’ court, and may be thus stated: 1.

Writ of Error to the Circuit Court of Lowndes. Before the Hon. E. Pickens. This was a trial of the right of property, levied on by an execution in favor of Harris, and claimed by Haygood.

This was a proceeding had in the orphans’ court of Tuscaloosa county, to try the validity of a will, which the plaintiff in error offered for probate, as the last will and testament of Nathaniel Davis, deceased. Citations were issued to the widow and heirs of the deceased; six of the latter contested the will. The case was submitted to a jury, and a final trial was had on the 28th August, 1847, when the jury returned a verdict in favor of the contestants.

Writ of Error to the Circuit Court of Talladega. Before the Hon. S. Chapman. This suit was commenced by motion before a justice of the peace, by Robertson against May as a constable, and against Coker, Best and Spence as his official sureties. The default alledged, is the failure to return a certain writ of execution described in the notice. After judgment against them, the defendants appealed to the circuit court, where they pleaded as follows: 1.

Writ of Error to the County Court of Sumter. The defendant in error, was appointed administrator of Frances D. Wiggins, deceased, by the orphans’ court of Sumter. He returned no inventory of the estate, and in June, 1844, made application for a final settlement. The court ordered forty days’ notice to be given to all persons interested in the estate, and set the 17th of August thereafter as the day on which the application would be heard, and a final settlement made.

<p>1. When a cause is submitted for trial on bill and answer, and the defendant denies the equity of the bill, and avers that the same was filed for delay, damages of six per centum,, upon the judgment at law enjoined by the bill may be decreed.</p>

Judgment rendered by his Honor Samuel Chapman. Assumpsit by the defendant, against the plaintiff in error. The questions presented, arise out of a bill of exceptions. The plaintiff called a witness to the stand, and examined him without objection.

<p>1. A testator by his will declared, that certain of his slaves should he permitted to go to Africa, their passage to he paid, &c., but if they desired to remain subject to his daughter as they had been to him, they should be permitted to do so, but in no event to be sold, or deprived of this privilege either before or after the death of my said daughter. Should they, or any, or all, prefer not to emigrate, then and in that event, they shall in all respects be subject to my daughter, as they are to me — Held,that the slaves had not the legal capacity to choose between freedom and servitude, and that the bequest of freedom being void, the title to the slaves was vested in the daughter.</p>

Before the Hon. A. Crenshaw, Chancellor. The plaintiff in error filed his bill in the chancery court holden iñ the county of Marengo, ‘against Joseph B. Earle, individually, and as executor of James W. Earle, deceased, also against Robert J. Ware, James Battle, John Battle and Samuel, merchants and partners, under the firm name of Rives, Battle & Co.; which bill, among other things, charges that on the 28th March, 1837, complainant formed a partnership with defendant…

Writ of Error to the Circuit Court of Jefferson. Before the Hon. J. D. Phelan. This was an action of trespass to try titles to a lot situated in the town of Elyton. The cause was tried on the plea of “ not guilty,” a verdict returned for the defendants, and judgment rendered accordingly.

Writ of Error to the Circuit Court of Dallas. Before the Hon. E. Pickens. This was an action of assumpsit, brought by the plaintiff in error, against the defendant on a promissory note.

Before the Hon. G. W. Stone. Action on the case, for slander, by the plaintiff in error against the defendant and her husband, Daniel M. Pearce. Plea, not guilty. Pending the action, Daniel M. Pearce departed this life, and the suit as to him abated, but was continued as to his wife, Elizabeth, who, it is alledged, uttered the slanderous words. Trial and verdict for defendant. Upon the trial, several objections were made to the proof.

Writ of Error to the Circuit Court of Sumter. Before the Hon. G. W. Stone. This was an action of debt at the suit of the defendant in error, to recover the penalty prescribed by the statute for cutting certain trees on his land. The cause was tried by a jury, who returned a verdict for the plaintiff below for the sum of $500, and judgment was rendered accordingly.

<p>Writ of Error to Benton Circuit Court. Before Hon. G. W. Lane.</p> <p>The defendant in error brought an action of trespass against the plaintiff, to try titles to the south-east quarter of section No. 19, township 16, range 8, east. The cause was tried on the general issue, and a judgment was rendered for the defendant in error. During the trial a bill of exceptions was taken, which presents the following facts:</p> <p>The plaintiff below introduced a pre-emption certificate to the land sued for, issued by the receiver of public land to him, dated 7th March, 1845, and which purported to be issued under the pre-emption act of 1841, and proved, that the defendant was in possession of the land, and rested his case. The plaintiff in error then offered evidence tending to show, that he was entitled to enter the land under the provisions of the act of 1841, and that the defendant in error was not. That a controversy had taken place between the defendant in error, and himself, before the register and receiver, as to the right of entry under the act, and the defendant in error was successful. That an appeal to the secretary of the treasury was taken, and owing to the imperfect manner in which the papers were sent up, the decision of the secretary was in favor of the defendant in error.</p> <p>The plaintiff in error offered evidence tending to show, that he had complied with the requisitions of the act of 1841, but that the defendant had not. This evidence was rejected by the court, and the plaintiff excepted.</p> <p>The plaintiff in error then offered parol proof, tending to show, .that an Indian being the head of a family, had been located on said land, in conformity with the treaty of the 24th March, 1832. This evidence was also rejected by the court, and the plaintiff in error excepted.</p> <p>The plaintiff then offered evidence tending to show, that he claimed the right to enter said land, in opposition to the right of the defendant in error; and had made valuable improvements on it before the defendant in error entered it. This proof was also rejected by the court, and the plaintiff excepted.</p> <p>1. An entry under the pre-emption act of 1841, by a party not entitled to enter the land, will not enable the party entering it to eject him in possession, who is entitled to enter the land under that act. 9 Ala. R. 596.</p> <p>2. Parol proof maybe given to show, that a Creek Indian, being the head of a family, was located on the land, under the treaty of 1832, and this evidence will show the entry to be void, and the certificate will give the party no title. Minter v. Crommelin, 9 Ala. R. 596.</p> <p>1. The evidence does not show fraud in the entry, but at best a mistake merely, and the register and receiver are made by law, the judges to determine on the right of an applicant to enter land under the pre-emption act, and their decision cannot be collaterally impeached in a court of law. Crommelin v. Minter, 9 Ala. 607; 13 Peters, 510.</p> <p>2. An Indian reservation, under the treaty of 1832, would become subject to entry under the pre-emption act, unless the Indian continued in possession, or had sold it in accordance with the treaty.</p>

Writ of Error to the Chancery Gourt of Madison county— 22d District. Before the Hon. W. W. Mason, Chancellor. This was a bill exhibited in the chancery court of Madison county, by John Dement, George B. Smith, and Benj.

Writ of Error to the Court of Chancery sitting in Greene county. Before the Hon. D. G. Ligón, Chancellor. The plaintiff in error filed his bill, stating the marriage of himself and the defendant, together with other appropriate facts, alledging that she had voluntarily left his house, bed. and board, more than three years, and had voluntarily remained away ever since, with the intention of abandoning him; and thereupon praying a divorce a vinculo matrimonii.

Before the Hon. S. Chapman. ' Assumpsit by plaintiff in error, on a promissory note for $700, due first March, 1839. Amongst other pleas, the defendants filed a plea puis darrein continuance, the substance of which is, that the note sued on, was given by defendants, to plaintiff, to protect him, and one Lewis, from the consequences of their being surety, for La Roque, on a note for about the same amount, to the Tombeckbee Railroad Company.

Writ of Error to .the Circuit Court of Dallas. Before the Hon. E. Pickens. The plaintiff in error was indicted in the circuit court of Dallas county, for the larceny of a pistol, charged in the indictment to be the property of one Ashley W, Speight, and of the value of fifteen dollars. At the fall term of said circuit court, 1847, the prisoner was arraigned, and pleaded not guilty to the indictment.

Writ of Error to the Circuit Court of Cherokee. This was an action of debt at the suit of the defendants in error, on a bill single. The defendant pleaded two several pleas in abatement — 1. That previous to the institution of this action, the plaintiffs caused an attachment to be issued against his estate for the same cause of action, returnable to the county court of Cherokee, which was still pending and undetermined. 2.

Writ of Error to the Circuit Court of Tallapoosa. Before the Hon. S. Chapman. Trial of the right of property. The defendants in error levied an execution on slaves, as the property of David Powell, which were claimed by the plaintiff in error, and bond given to try the right.

Writ of Error to the County Court of Marengo. This was a proceeding at the instance of the defendants in error, by scire facias, to subject certain lands to the payment of a judgment rendered in their favor, in the county court, for the sum of $81 79, rendered against one Wood F. Monk in November, 1839.

On points referred from the Circuit Court of Lawrence, by the Hon. G. W. Lane. The defendant was indicted as a married man, for living in adultery from the first day of January, 1844, to the first day of September of the same year, with Jane McMichael, a married woman. A verdict assessing a fine of $100 was rendered against the defendant, and judgment was rendered accordingly. The points reserved as novel and difficult may be thus stated: 1.

Writ of Error to the County Court of Randolph. This suit was commenced before a justice of the peace, and after judgment thereon was rendered, it was removed to the county court of Randolph. The facts, so far as they are necessary to be shown, may be thus stated.

Error from the Circuit Court of Chambers. Before the Hon. Geo. Goldthwaite. Detinue by the plaintiff against the defendant, to recover nine negro slaves. The defendant pleaded non detinet, statute of limitations of six years, and six years’ peaceable and adverse possession under claim of title in his own right, upon which issues were joined. Judgment and verdict for the defendant.

Writ of Error to the Circuit Court of Greene. Before the Hon. J. D. Phelan. This was an'action on the case, at the suit of the defendant in error, to recover damages of the plaintiff, for the failure, as sheriff, to serve a garnishment placed in his hands, on Robert Leachman, a supposed debtor of G. B. Ross, against whose estate the plaintiff below had sued out an attachment.

Before the Hon. W. W. Mason, Chancellor. The facts of the case sufficiently appear in the opinion of ■the court. The -bill and amendment charge, the land was’ held by 'Clarke under a bond for titles, from Driver, when-the purchase money should be paid.

Before the Hon. J. B. Clarke. ‘ The bill was filed by defendants in error, perpetually to enjoin a judgment against them in favor of the bank, rendered in the circuit court of Mobile county. The bank, after due service of subpoena upon- the president, failed to make defence, whereupon a decree p'o confesso was rendered against it, and finally, a decree was pronounced, granting the relief •sought for by complainants. relied on the case in 8 Ala.

Writ of Error to the Court of Chancery sitting at Livingston. Before the Hon. A. Crenshaw, Chancellor. The case made by the bill is substantially as follows : — . In 1836, the complainant purchased of Thos. Ware, a certain tract of land, and received his bond for titles. Complainant' paid part of the purchase money, and gave his note for the residue, which was transferred by Ware to Jesse Duren, and notice of the transfer given to the complainant.

Writ of Error to the Orphans’ Court of St. Olair. This was a proceeding before his honor John I. Thomason, in the orphans’ court of St. Clair, to try the validity of the will of William Watson, deceased. The cause was submitted to a jury, on the issues made up between the contestants, and the executor, who propounded the will for probate. The first plea, or objection interposed by the contestants, was, that the testator was not of sound mind. 2.

The plaintiffs in error filed their petition in the orphans’ court of Perry county, claiming dower in certain lands described in said petition, in right of said Lucy Ann Adams, who was the widow of James B. Tutt, late of Perry county, deceased, and who, since the death of heríate husband, had married the said Benjamin H. Adams. The facts of the case sufficiently appear in the opinion of the court. cited 10 Ala. R. 455; 6 Ala. R. 219; Clay’s Dig. tit. Dower. cited Aik.

Writ of Error to the Circuit Court of Greene. Before the Hon. G. D. Shortridge. This was an action of detinue at the suit of the defendant in error, for the recovery of a slave named Charles. The cause was tried on the plea of non detinet, a verdict returned for the plaintiff, in which the value of the slave, with damages for his detention, were assessed, and judgment entered in usual form. On the trial, the defendant excepted to the ruling of the court.

Writ of Error to Perry County Court. This suit was brought by plaintiff, as administrator of Singleton Shields, to recover of the defendant, for work and labor, money had and received, &c. The cause was tried, and a verdict and judgment was rendered for the plaintiff.

Before the Hon. G. Goldth waite. Detinue by defendant in error, who was the plaintiff below, against Hinton, to recover three negro slaves. A verdict and judgment was rendered for the slaves, or their alternate value, to reverse which Hinton brings the case to this court. • The facts appear from a bill of exceptions in the cause, taken upon the trial.

Writ of Error to the Circuit Court of Perry. Before the Hon. J. D. Phelan. Held: that either a moral or equitable obligation is a sufficient consideration to support an express promise. 5 Taunt Rep. 35; 15 Term. Rep. 716; 2 Caine’s Rep. 150; 2 Dev. L. Rep. 517.

The plaintiff in error, was appointed administrator1 of the estate of William Long, by the orphans’ court of Talladega* in November, 1841, and entered upon the execution of the trust. In September, 1842, upon his report, the court declared the estate insolvent.

Before the Hon. W. W. Mason. The bill was filed by the defendant in error, to redeem certain slaves, under an instrument under seal, executed in the State of Georgia, on the 22d February, 1825. The facts, and the testimony, so far as they are necessary to illustrate the opinion of the court, are sufficiently detailed in the opinion of the court.

Writ of Error to the County Court of Sumter. Before his honor G. B. Frierson. This was an action of detinue at the suit of the defendant in error for the recovery of two female slaves, named'Melissa and Eliza. The cause being submitted to a jury, a verdict was returned for the plaintiff, assessing the value of the slaves and damages for their detention severally, and judgment was thereon rendered.

Before the Hon. S. Chapman. The defendant in error declared against the plaintiffs, on a promissory note, dated — day of June, 1840, for six thousand dollars, due the 1st of May, 1844, made by defendants, payable to the order of A. Henderson, and by him indorsed to the plaintiff below. At the fall term of the circuit court, a trial was had, and a verdict returned for the plaintiff, for the amount of the note and interest. Thereupon judgment was rendered.

Before the Hon. E. Pickens. Assumpsit on a bill of exchange by the defendant in error against the plaintiff in error. The defendant pleaded seve-' ral special pleas, to which the plaintiff demurred, and the-court sustained his demurrer. Upon the trial, as appears from a bill of exceptions, the defeiident proved the bill in suit was made and dated-in Mobile, and handed to one Haynes, in blank, to enable him to purchase bagging and rope.

Before the Hpn. S. Chapman. This was an action of Trespass at the suit of the defendants in error to try titles to several adjoining tracts of land situated in Fayette county. The cause was tried on the plea of “ not guilty,” averdict returned for the plaintiff, assessing his damages at two hundred dollars, and judgment thereon rendered. A bill of exceptions was sealed at the defendant’s instance, which presents the following points: 1.

<p>Error to .the Circuit Court of Perry. Before the Hon. G. Goldthwaite.</p> <p>David Campbell declared in assumpsit against the plaintiff in error, on several promissory notes. The defendants •pleaded non-assumpsit, failure of consideration, and fraud. On the trial, it appeared, that the notes sued on, were given by the defendants, to the plaintiff, in the purchase of a negro, •in 1840. The price agreed to be paid was $900; $500 was paid in cash, and the notes sued on were given for the residue. The negro was sold to the defendants by Alexander Campbell, the agent of the plaintiff. The bill of sale was under seal, and signed David Campbell, by Alexander Campbell, and contains a warranty of soundness. It did not appear that Alexander Campbell had authority under seal, but there was testimony tending to show, that he was authorized to sell the negro. The defendants also offered proof, tending to show, that at the time of the purchase, and before, the negro was diseased, and unsound; that the plaintiff and his agent knew of this unsoundness. That the negro was sold as sound, and so represented to the defendants, and that the defendants were ignorant of his unsoundness until a short time after the sale. That as soon as they discovered the hegro to be unsound, they addressed a letter to plaintiff, and also to Alexander Campbell, offering to rescind the contract of purchase, and testimony was also offered, tending to show, that the letter was received by the plaintiff.</p> <p>On this proof the court charged, that to authorize Alexander Campbell, to bind David Campbell, by a warranty under seal, it was necessary that he, Alexander Campbell, should have had authority under seal; and without authority under seal, the warranty was not the deed and warranty of the plaintiff.</p> <p>The defendants requested the court to charge the jury, that if they believed that Alexander Campbell was authorized to sell the slave, that the warranty, though not the deed of the plaintiff, might yet be considered as his written warranty. This charge the court refused to give.</p> <p>The defendant also requested the court to charge, that if Alexander was the agent of David Campbell in the sale of said negro, and that he represented said slave as sound, knowing him to be unsound; that this would be a fraud, and that the said writing, purporting to be a warranty of soundness, although not the deed of David Campbell, might- be regarded as evidence that Alexander Campbell represented said slave as sound, at the time of the sale. This the court also refused.</p> <p>The defendants also requested the court to charge the jury, that if they believed, that said David received the price for said slave, and knew of the sale and warranty, and also received the letter of the defendants, and made no reply, and waited for near five years before he made any demand for the payment of the notes, that these facts might be considered by the jury, as a ratification of the warranty, although under seal. This charge the court also refused.</p> <p>The charge given, and the refusal to charge as requested, is here assigned for error.</p> <p>1. The American authorities differ from the English as to the strict rule requiring an agent to have authority under seal, to execute a deed. Story on Part. <§> 121, 122.</p> <p>2. A ratification of a deed may be without seal in some cases.</p> <p>3. The warranty was not required to be under seal, and is therefore binding as a parol contract. Story on Part. $ 122, and note ; 2 Kent, 614; 1 Wend. 424; 4 lb. 285; 19 Johns. 65.</p> <p>4. A principal is bound by the fraudulent representations</p> <p>of his agent. Story on Ag. § 126, 127, 139; 1 Greenl. Ev.125; 13 Wend. 518. '</p> <p>5. A power to sell a slave, implies a power to warrant. 1 Ala. Rep. 446; 9 Por. 305.</p> <p>6. The statements in the deed were not the less false representations from the fact of their being under seal. Indeed, being in writing, no verbal evidence would perhaps be' heard. Hilliard on Sales, 256.</p> <p>An agent cannot bind his principal under seal, unless his authority so to bind is under seal. Story’s Ag. § 49; Skinner v. Gunn, 9 Por. 305.</p> <p>The principal must ratify by seal, the acts of his agent, done for him under seal, before he is bound thereby. Story’s Ag. § 242.</p> <p>The writing of a third person in respect to a fact, is not good evidence, but the writer ought to be called. 1 Stark.. Ev. 40, 41.</p>

Error from the Circuit Court of Fayette County. This was an application upon the motion of the plaintiff in error, to set aside a sale made of a tract of land, the property of the plaintiff, by one R. H. Poe, then sheriff of Fayette county, and which had been purchased, as was alledged, by defendants, Hubbert and Caple.

Writ of Error to the Circuit Court of Perry. Before the Hon. G-. D. Shortridge. On the 13th August, 1845, defendant in error made an affidavit that she had recovered a judgment before a justice of the peace of Perry, against Charles Chidsey, and that the money thereon due, could not be made of him; thereupon a garnishment was issued by the justice to C. G. Byrne, a supposed debtor of Chidsey.

Writ of Error to the Court of Chancery for the 40th District, Northern Division. Before the Hon. W. W. Mason, Chancellor.

Error from County Court of Perry. Action on the case by Hill against Ward, for slandering the title of the plaintiff to a certain slave, sold by the sheriff of Perry county, at a public sale under executions against plaintiff, át a great sacrifice, as it is alledged, in consequence of defendant’s wanton, false and malicious forbidding the sale, and assertion of a pretended title. Plea, not guilty— verdict and judgment for defendant. The facts more fully appear in the opinion.

Writ of Error to the County Court of Randolph. In the transcript, there is a notice addressed to Robert Casky, late sheriff of Randolph, informing him that during the term of the county court of Randolph county to be hold-en on the fourth Monday of July, 1846, the defendants in error would move for judgment under the act of 1819, against him and the sureties in his official bond, as sheriff of Randolph, for the amount of a fieri facias issued from that court in favor of the…

Writ of Error to the Orphans’ Court of Chambers. The plaintiffs in error, filed their petition in the orphan’s court of Chambers county, setting forth that the testator, by will bearing date the 4th of June, 1838, thereby gave and bequeathed Mary A. M., now the wife of Warrenton Casly, $600, to be paid to her in cash when she should become of age. That he appointed his wife, and one William Casly, executors thereof.

Before the Hon. G. W. Stone. Action on the case, by plaintiff against the defendant, for wrongfully and vexatiously suing out an attachment. Plea, not guilty. Verdict and judgment for the defendant. The facts sufficiently appear in the opinion of the court.. 1. The action is for the wrongful and vexatious suing out of an attachment, and also for a wrongful and vexatioqs and excessive levy. The several decisions of the court excepted to, are clearly contrary to law.

Upon the final settlement of the accounts of an administrator of the intestate, the heirs and distributees of the estate excepted to the- ruling of his honor J. P. Graham, presiding judge-. It appears from the bill of exceptions, that the administrator claimed a credit of $3,344 80, to the allowance of which the heirs and distributees objected.

Writ of Error to Randolph Circuit Court. Before the Hon. S. Chapman. The defendant in error, sued the plaintiff, ori a ntite executed by him to one Crook, and indorsed to the defendant id error.

The defendants in error were garnisheed to answer what they were indebted to Johnson & Patton,, against whom, the plaintiff in error had sued out an attachment, returnable to the county court. They answered, denying indebtedness, but stated that two notes were placed in their hands, for small amounts, payable to Johnson & Patton, and which were handed them as attorneys at law to collect, by one Dearing, to whom they had executed the usual receipt.

Writ of Error to the Circuit Court of Greene. Before the-Hon. J. D. Phelan. This cause was instituted at the instance of the plaintiff in ■error, by a summons returnable before the intendant of the’ corporation, requiring the defendant to answer to a charge of retailing spiritous liquors, without a license, in violation of one of the ordinances of the town. Upon the trial, the defendants were fined $20, and a judgment given accordingly, with costs, by the Intendant.

This they declined in do, and the clerk refused to make out the transcript. and citéd Clay’s Dig. 306, § 1; 308, <§. 13; and McRae v. Juzan, 4 Ala. Rep. 286.

This action was commenced before a justice of the peace on a promissory note made by the plaintiff in error, Leonard Bullock, payable to E. W. Ogburn, for $46 16, dated 8th October, 1844, and due six months after the date thereof.

Writ of Error to the County Court of St. Clair. This was a proceeding instituted before a justice of the peace, on a note for thirty-five dollars, of which the defendant was the maker, and the plaintiff the payee. Judgment was rendered against the defendant for the amount of the note, with interest and costs, and he appealed to the county court, where a verdict was returned for the plaintiff for $20 35.

<p>Writ of Error to the Chancery Court of the 30th District of the Northern Chancery Division. Before the Hon. W. W. Mason, Chancellor.</p> <p>John Sanders filed his bill in the court of chancery, against the Branch of the Bank of the State of Alabama at Decatur, alledging that the bank recovered a judgment at law against him, in the circuit court of Morgan, for $2,200 debt, $47 15 interest, and $110 by-way of damages, being five per cent, on the amount of a bill of exchange, on which he was sued as first indorser, which was drawn by Harvy Jemison, on Hugh Maddox & Co. of New Orleans. That he indorsed the bill for the accommodation of Jemison ; that execution issued thereon against him, he being the only party sued, which came to the hands of the sheriff; that Jemison, the drawer, paid to the sheriff, Henderson, $700 on said execution, and took his receipt as sheriff, which receipt is lost, and complainant therefore cannot specifically describe it. That some short time thereafter, Jemison, the drawer, procured one Joseph Jemison to pay, and discharge the balance of the judgment, which was done by Joseph Jemison’s paying to- the bank $600 in cash, and giving his note in full for the residue. That notwithstanding said judgment is thus paid in full,, the bank has caused execution to be issued on it, and the same levied on the lands of complainant. The bill prays a perpetual injunction of the judgment at law, and general relief.</p> <p>The bank answered the bill, and admitted the recovery of the judgment on the bill of exchange as stated, and that execution issued thereon, and went into the hands of Samuel Henderson, sheriff, but denied the payment to the said Henderson of the $700; denied that Joseph Jemison paid, and discharged the residue of the judgment; but admitted that Harvy Jemison, the drawer of the bill, had a note discounted in the bank, and on the 19th February, 1840, checked in favor of said judgment $1,043 40, and at the same time the further sum of $601 71;. also that he paid George W. Rice’s check for $500, on account of said judgment. The answer-then sets forth a calculation of interest, and the amounts paid, and. claims as yet due. for principal $274 22, $100 damages oni the bill, and cost. George W. Rice was examined on the part of the complainant, who states, that the judgment was paid off in part, by Harvy Jemison to the sheriff of Lawrence county, and the balance was paid into bank by Joseph Jemison, by substituting his note, for an amount equal to the balance of the judgment. That when Joseph Jemison was settling the judgment with the bank, he tendered the receipt of Henderson, the sheriff, for seven, or eight hundred dollars, given to Harvy Jemison, the drawer of the bill, for money paid on the execution upon the judgment referred to. The bank took the receipt, and put it into the hands of an attorney to proceed against the sheriff; afterwards, that the sheriff paid into bank $500, and alledged that $200 had been retained by him, and applied to other executions, then in his hands against Jemison, the drawer of the bill. This witness states, that the true amount due on said judgment, is the amount due on the sheriff’s receipt. Joseph Jemison deposed, that he applied to the bank, in consequence of an agreement between Harvy Jemison and himself, to settle the debt. That he proposed to the bank, if they would receive the sheriff’s receipt for $700 on this judgment, which he then had, that he would settle the balance by notes he held, and by his own note. This was agreed to, and he gave up the receipt to the bank, which was allowed as a credit, and that he settled the balance by his own note, and a note he held on one Harris, which notes have been paid. He states that he was informed, there were no damages, as they had been released by an act of the legislature, but that his settlement was in full of said debt. The statement of the clerk was taken, who made out an account, showing a balance due the bank on the bill of $274 22; this account was taken from the books of the bank.</p> <p>Henderson, the sheriff, was examined, who states, that before the execution came into his hands, Harvy Jemison proposed to pay to him $700 on this debt. That he informed him he had no authority to receive it, but that he would do so, and apply some of it to other executions he had against him at the time, and the residue he would apply to the debt now in controversy. That Harvy Jemison at first objected to the application of any part of it to any other debt, than the bill of exchange, but finally consented, that he might satisfy other executions, and apply the balance to this debt. That he paid Rice, the bank attorney, $500 of this sum, and retained $200 to pay costs, commissions, and the other executions he held against Harvy Jemison.</p> <p>The deposition of Harvy Jemison was taken, but this was suppressed by the chancellor, on the ground of interest.</p> <p>The case was heard, on bills, answer and proof, and the chancellor enjoined the collection of all the judgment, except $384 22, which he considered as still due, and dissolved the injunction as to this sum. This decree is assigned for error.</p>

Before the Hon. E. Pickens. Action of assumpsit by the defendant in error against the plaintiff. The declaration contains the common counts. Pleas in short: 1. Non-assumpsit. 2. That the demand sued for is an open account, and the same is barred by the statute of limitations of three years. That the money sued for by the plaintiff, was paid by plaintiff as sheriff of Dallas county, on an execution agaiust defendant, and without his consent. 4. Set off.

Before the Hon. G, W. Stone. Trespass to try title, by the plaintiffs in error. Held: this was not such a title as could be sold by execution at law; to which the plaintiff excepted. This is the matter now assigned as error. 1. The interest of Harris, in 1841, was such that the judgment bound it, and by the sale was transferred to plaintiffs.

Before the Hon. H. W. Lane. The plaintiff declared in assumpsit, against the defendant, and a trial was had in the court below on the plea of nonassumpsit. In the progress of the trial, a bill of exceptions was sealed by the presiding judge, which presents the following facts: In the month of November, 1843, the plaintiff, and defendant, bet a hundred dollars on a horse race, and each staked the money in the hands of a third person.

Before the Hon. G. W. Lane. The defendant in error, who was the plaintiff below, sued Brock in an action of detinue, to recover a carryall and horse, alledged to have been unlawfully detained from him.

Before the Hon. E. Pickens. Assumpsit by the plaintiff in error. From a bill of exceptions it appears, that the defendant who lived in the interior, wrote a letter to one Nance, a clerk in the house of the plaintiff, at Mobile, requesting him to send him some articles in the grocery line. Nance had previously lived in Selma, and was indebted to the defendant.

Before the Hon. G..W. Stone. The plaintiff in error declared in assumpsit against the defendant, on an instrument in writing, to the effect following : “ For value received, I transfer and indorse to James Isbell, to be first paid out of the proceeds of the sale of the land and mills, which the Longs bought of me in the year 1840, and for the sale of which said land and mills I have filed a bill in the chancery court of Talladega, the following described note : $2,000.

Error from the Circuit Court of Mobile. Before the Hon. J. Bragg. Action of debt by plaintiff, as assignee in bankruptcy, upon a lease reserving a certain money rent due by instalments in 1839 and 1840, made by defendants to one John Tarleton, who was duly declared a bankrupt in June, 1842, and who then turned over said lease to his assignee, the plaintiff in error. The suit was commenced 17th November, 1045.

Before the Hon. E. Pickens. Assumpsit by the defendant in error, against the plaintiff in error, as indorser of a bill of exchange for $4,000, drawn by Samuel M. Hill, on Bower & Co., in favor of A. W. Coleman, dated 13th December, 1845, and payable thirty days after date ; accepted by Bower & Co., and indorsed by Coleman, and Saltmarsh. The defendant pleaded — 1. Non-assumpsit. 2.

The defendant in error brought a suit before a justice of of the peace of Fayette county, against the plaintiff in error, to recover damages for false imprisonment. The damages claimed were less than $20. This suit was brought in the year 1844. The justice dismissed the suit for want of jurisdiction. An execution for costs was issued against the defendant in error; he petitioned the county court of Fayette and obtained a certiorari.

Before the Hon. G. D. Shortridge. The prisoner was indicted in the circuit court of Shelby county, for an assault with intent to kill and murder… Held: at and against the body of the said Henry W. Robertson, then and there did cut, thrust, and stab, with the intent him, the said Henry W. Robertson, then and there, feloniously, wilfully, and of his malice aforethought, to kill and murder.” The defendant was found guilty by the jury, and sentenced by the court to five years’…

Before the Hon. D. Coleman. This was an action of assumpsit, at the suit of the plaintiff in error, to recover the amount of an order drawn in his favor by the defendant, on Joel D. Hicks, for $250, under date of the 5th April, 1841. The cause was tried on the general issue, and an issue to the plea of infancy; a verdict was returned for the defendant, and judgment was rendered accordingly.

Error from the Circuit Court of Greene. Before the Hon. J. D. Phelan. The defendant in error declared in assumpsit against the plaintiff, as administrator of William Bezzell, deceased ; a trial was had, and a verdict returned in favor of the plaintiff below, whereupon judgment was rendered.

<p>Error from the Circuit Court of Montgomery. Before the Hon. Geo. Goldthwaite.</p> <p>Assumpsit by Taliaferro, against the plaintiff in error, to recover the amount which the plaintiff below had been compelled to pay by suit, as indorsee of a bill of exchange upon which Boyd was a prior indorser.</p> <p>It appeared in evidence, that before the payment made by Taliaferro, Boyd had paid the amount of the bill to the Branch of the Bank of the State of Alabama at Montgomery, but under an agreement, that the payment should not be entered upon the books of the bank, and that the bank should prosecute the claim against Taliaferro’s estate, (he having died in the mean time,) for the benefit of Boyd. The claim was prosecuted, judgment rendered, and the money collected by the sheriff of Montgomery county, and paid over to Boyd upon the order of the bank. There was no evidence showing that Taliaferro had any knowledge, before the payment of the money by him, of the previous payment made by Boyd, the first indorser.</p> <p>The court charged the jury, if they found the above state of facts to be true, they should find for the plaintiff below. To reverse the judgment because of this charge, Boyd prosecutes this writ of error.</p> <p>1. The money sued for, was not, in law, paid to the plaintiff in error, but was paid to the bank, upon a valid judgment.</p> <p>2. There is no right of action in defendant against Boyd, for Boyd had paid the debt to the bank before the judgment was rendered against defendant, and of this he was bound to take notice and plead it.</p> <p>3. The defendant has no remedy at law, nor can he be relieved in equity, unless he can impeach the judgment for fraud or accident, or the act of the opposite party, unmixed with fault or negligence on his part. French v. Garner, 7 Por. 549.</p> <p>4. If the defendant has any remedy, it is against the bank, for Boyd received the money to the use of the bank. Bank U. S. v. Bank of Washington, 6 Pet. 8; Story on Agency, 303-4-5.</p> <p>5. If the payment was made to Boyd, and not to the bank, it was a voluntary payment, and hence defendant could not recover it back.</p> <p>6. If the last indorser of a bill be notified of its dishonor, and he desires to hold any prior party liable to him, he must notify him, unless due notice has been given to the prior party by the holder. Sherrod v. Rhodes, 5 Ala. 683.</p> <p>1. The action of assumpsit for money had and received, has been assimilated to a bill in equity, and the true test of the plaintiff’s right to recover, depends upon the fact, whether the defendant can, in equity and good conscience, retain the money sought to be recovered. Dupuy v. Roebuck, 7 Ala. 486.</p> <p>2. These actions on the money counts are resorted to as substitutes for bills in equity, and ought to be encouraged, whenever the law affords no other remedy; and where a court of equity would compel the defendant to repay the plaintiff a sum of money, which the latter had been compelled to pay for his benefit. Wright v. Butler, 6 Wend. 290,</p> <p>3. This action will also lie by a second indorser against the holder of a promissory note, to recover back money paid on, a judgment against such, indorser, where the holder, previous to the payment, released a prior indorser. Brown v. Williams, 4 Wend. 360; Knox v. Abercrombie, 11 Ala. R. 9,97.</p> <p>4. An action of assumpsit on the money counts, will lie by the second indorser against the first indorser, to recover back money paid upon a judgment. Wright v. Butler, 6 Wend. 284 ,• Brown v. Williams, 4 lb. 366.</p>

Before the Hoh. G. W. Lane. A writ of fieri facias issued from the circuit court of Montgomery, against the goods arid chattels, &c. of Á. P; Wade arid another, which was levied on a male slave, named Sampson. The déféndant in error made an affidavit pursuant to the statute, declaring that the slave in question belonged to the estate of William Johnson, deceased, of which he was the administrator, and executed a bond with surety to try the right.

Writ of Error to the Circuit Court of Perry. Before the Hon. J. D. Phelan. On the first day of October, 1846, a writ of execution, in favor of the bank, against James M. Harwood, William Ford, and Ennis Ford, defendants, was placed in the hands of the sheriff of Perry county, for $290 05, issued on a judgment rendered, in the county court of Mobile, on the 17th of Feb-; ruary, 1840.

The plaintiff in error filed his petition in the orphans’ court of Shelby county, alledging, among other things, that he and the defendant became executors of one Mason, deceased. That at a sale of the effects of Mason’s estate, one Ferrill purchased a portion of the same, and gave his note payable to the executors, with Shackleford, the defendant as security.

Writ of Error to the Circuit Court of Sumter. Before the Hon. S. Chapman. This was an action of assumpsit at the suit of the defendants in error against the plaintiff, as the surviving partner of W. Carlton & Co. The declaration alledges that Samuel B. Lacey and Austin Lacey, made a bill single, particularly des» cribed, payable to Henry McCall, which the payee indorsed to Messrs. Carlton & Co., and the latter to the plaintiffs.

Writ of Error to the Circuit Court of Montgomery. Before the Hon. G. D. Shortridge. This was an action of trover, brought by the defendant in error, against the plaintiff, to recover damages, for the conversion of a promissory note, executed by A. Martin, to Mrs. Amanda Converse, or bearer, for $ 125. The declaration described the note as dated the 24th December, 1843, and due January, 1845. It does not appear that the note was indorsed by the payee.

Writ of Error to the Orphans’ Court of Clarke. Proceedings were instituted in the orphans’ court, and a final settlement made of the accounts of William R. Hamilton, guardian of Sarah Ann Burriss, now the wife of Charles F. Lucas, the plaintiff in error.

Writ of Error to the Circuit Court of Talladega. Before the Hon. S. Chapman. This was an action of assumpsit at the suit of the plaintiffs in error, as the indorsees of a promissory note made by John Long, James Long and Wm. P. Long, by which, on the 14th February, 1840, they promised to pay to the defendant, by the 25th December, 1841, the sum of $2,000.

Before the Hon. G. D. Shortridge. This was a trial of the right of property: an issue was made up, whether the slave was subject to the execution ? The testimony tended to show, that the slave was purchased with the money of John P. Boothe, the defendant in the execution.

Error from the County Court of Perry. The plaintiff declared in assumpsit for $225. The declaration contains all the common counts. Plea, general issue. Verdict and judgment for defendant. A bill of exceptions, sealed at the trial, shows these facts: The plaintiff proved by one witness that the defendant had stated to the witness he had purchased of the plaintiff a counter and shelves for a store house, and was to give the plaintiff one hundred and sixty dollars for them.

Before the Hon. G. W. Lane. This was an action of assumpsit, at the suit of the defendant in error. The declaration, among other counts, embraces one for goods, wares and merchandize, sold and delivered ; money had and received, and an account stated. The cause was submitted to a jury, who returned a verdict for the plaintiff, for $22 damages, and judgment was rendered accordingly.

Before the Hon. E. Pickens. James Harris, filed a petition in the circuit court of Dallas, setting forth, that he leased to William H. Steetz a lot of ground in Cahawba, for the year 1846, and that Steetz executed to him a note for the rent, with Ulmer as security, for $132, due at twelve months, dated 31st December, 1845. That the note is due and unpaid.

Bushrod W. Bell, having obtained a judgment in the county court of Perry county, at the February term, 1846, against John B. Moore, for the sum of $285 33, afterwards, the 8th July, 1847, the said plaintiffs in error filed their petition in the said court, in which, after reciting the proceedings and judgment against said Moore, it is averred, at the time the judgment was rendered, as petitioners believe, and. certainly before the issual of any execution thereon, the said…

Writ of Error to the Circuit Court of Macon. Before the Hon. S. Chapman. This was a motion to quash an execution. It appears from a bill of exceptions, sealed at the instance of the defendant in the action, that the defendant made an application for the continuance of the cause, which the circuit court granted, upon condition that he would confess a judgment for so much of the plsintiff’s demand as was undisputed.

Writ of Error to the Chancery Court of Autauga. Before the Hon. W. W. Mason, Chancellor.

Before the Hon. G. Goldthwaite. Case by the defendants in error, for the wrongful and malicious suing out by the plaintiff in error, of an ancillary attachment, by which their reputation and credit as merchants were destroyed, &c. See the declaration at length in the opinion of the court. The defendant pleaded five pleas, the two first of which the plaintiff took issue upon, and demurred to the third, fourth, and fifth, which are set out in extenso in the opinion.

<p>Writ of Error to the Circuit Court of Tuscaloosa. Before the Hon. G. D. Shortridge.</p> <p>cited Clay’s Dig. 599, § 3.</p>

Before the Hon. J. D. Phelan. Debt by the defendant in error, against the plaintiffs in error, sureties of William J. Campbell, sheriff of Coosa county, on his official bond. Several breaches were assigned, the third of which only need be noticed. It recites, that the sheriff received an execution, which issued in favor of George Patterson, for whose use the suit is brought, against Starke Hobday, for $234, besides costs, returnable to the fourth Monday of March, 1842.

<p>Error to the Circuit Court of Autauga. Before the Hon. J. D. Phelan.</p> <p>Motion by the defendant at the spring term, 1847, requiring the plaintiff, who was proved to be a non-resident of this State, to give security for the cost, which motion, upon sufficient showing to the circuit court was granted, and it was ordered by the court, at said term, that unless the plaintiff gave security in sixty days from the time of making the order, the said cause was to stand dismissed. At the next succeding term, security for the cost not having been given, on motion of the defendant, the cause was dismissed by the court.</p> <p>It appears from a bill of exceptions, that before the dismissal of the cause, and when it was called for trial, the plaintiff offered to give security for the cost. The court refused him permission to do so, but dismissed the cause, for the reason that the security had not been given within the time prescribed by the order.</p> <p>The refusal of the court to permit the security to be given, and the judgment dismissing the cause, are assigned for error.</p>

Writ of Error to the Orphans’ Court of Shelby. Before his honor W. G. Bowdon. The defendants in error filed several claims against the estate of the plaintiffs’ intestate, which had been declared insolvent, one of which was an open account for $45 22. To the allowance of these claims, the administrators objected in writing — 1. Beeause they were not due to the pretended creditors, and have been fully paid. 2.

Before the Hon. E. Pickens. This is an action of debt against the defendants, on a bond executed by Dean, as principal, and Johnson as his security, conditioned that Dean should well and truly perform all the duties of sheriff of Conecuh county, and pay over all monies that might come into his hands, as such sheriff. The first assignment of the breach of the condition of the bond is, that Dean did not well and truly perform all the duties of sheriff of Conecuh county.

Before the Hon. E. Pickens. Trover by plaintiff in error, against the defendant in error, to recover various articles of property, named in the statute of this state, as exempt from sale, by an administrator' of intestate’s estate, or executors, and reserved for the use of the family. The defendant pleaded — 1. Not guilty. 2. That the subject matter of this suit had been adjudicated, in the orphans’ court of Lowndes.

Writ of Error to the Court of Chancery sitting in Talladega. Before the Hon. W. W. Mason, Chancellor. This cause was here at a previous term, and the decree which had been rendered was affirmed. 9 Ala. Rep. 772.

Writ of Error to the Circuit Court of Macon. Before the Hon. S. Chapman. The defendant in error, declared in assumpsit, against the plaintiff in error, for money had and received ; and upon a special contract.

A. Crenshaw. The defence at law was a good one, and it was defeated not by any fault or negligence on the part of the defendant. Is not this case, in principle, the same as though the defence at law had failed by reason of the loss of the receipts, without any negligence on the part of the defendant ? If so, then the decree is right.

Before the Hon. J. Bragg. This was an action of assumpsit, at the suit of the defendant in error. The indorsement on the writ states the object of the suit to be, the recovery of seven hundred dollars— bills of the bank of Mobile, which were lost by the plaintiff, in the waters of Mobile and Alabama rivers, and which the defendant refuses to pay. The plaintiff does not declare specially, but his declaration embraces the common counts in assumpsit.

Before the Hon. A. Crenshaw, Chancellor. 1. This is not a bill for discovery, but for relief. The defence could not have been made at law, unless by a bill of discovery, and if the discovery sought was denied, the party would have been without remedy, Steele v. Lowry and McGehee, 6 Ala, 124, 2.

<p>1. No action can be maintained on a note, which was made upon the consideration of running a horse race, and before the race was run, delivered up by the stakeholder, although it is again put in circulation by two of the makers, upon a valid consideration, one of the makers not being privy to, or assenting to such re-delivery.</p>

Writ of error to the Court of Chancery setting in Mobile. Before the Hon. A. Crenshaw, Chancellor. The defendant in error, the wife of Nathaniel Allen, by her next friend, Josiah Kennedy, filed her bill, alledging that Joshua Kennedy, of the city of Mobile, died, leaving his last will and testament, which has been admitted to probate in the orphans’ court of Mobile, of which the plaintiffs in error were appointed executors.

Before the Hon. W. W. Mason, Chancellor. The bill was filed by the plaintiff in error. The bill, answers and proof, are sufficiently set forth in the opinion of the court. The chancellor dismissed the bill, which is the matter now assigned for error. 1. The interest of one partner may be sold under execution, but chancery has jurisdiction to settle the accounts of the partnership, as well before as after the sale. 1.

Apsumpsit by the plaintiff in error. By a bill of exceptions, it appears, the defendant sold the plaintiff a tract of land in the State of Georgia, which he represented to contain 240 acres, and conveyed it to him by deed, which recites, that the tract contained 240 acres, more or less.

Writ of Error to the Circuit Court of Mobile. Before the' Hon. John Bragg. This was an action of ejectment for the recovery of certain real estate, situated in the city of Mobile. The defendant confessed lease, entry and ouster, pleaded not guilty, alledged that he wa^ in possession under an adverse claim of title for more than three years previous to the institution of this suit,, and had made permanent and valuable improvements on the premises since the year 1836.

<p>Error to the Circuit Court of Chambers. Before the Hon. G. Goldthwaite.</p> <p>The plaintiff below declared in assumpsit against the plaintiff in error. She pleaded coverture. On the trial a bill of exceptions was taken, the language of which is as follows : It was in evidence that the defendant and Benjamin G. Reed intermarried in the State of Georgia, and were there divorced ■ the defendant obtaining the divorce ; and that afterwards they intermarried in the State of Alabama, which last marriage, if valid in law, remains in full force, and since which last marriage the note sued on was executed.</p> <p>The court charged the jury that the second marriage in Alabama was null and void, under the statutes of this State. This charge is here assigned for error.</p> <p>The first point in this case is, to determine the nature of this divorce, and in doing this, no statute law of Georgia on divorces being pleaded, this court, in accordance with previous decisions, will determine this cause according to the laws of England, which is presumed to prevail in that State; and by the laws of England, two kinds of divorces are permitted, a vinculo and a mensa et thoro ; the first is for some canonical cause, that existed at the time of the marriage, and made it unlawful for the parties to contract marriage; both are equally guilty of a violation of law; both may contract marriage, and both may marry again, and strictly speaking, it cannot be said to be a divorce from the bonds of matrimony, because a divorce supposes a valid marriage; it is but declaring the unlawfulness of the marriage, the incapacity of the parties to marry. 1 Bl. Com. 353-4; Shelford on Mar. & Div. 192-3 ; Head v. Head, 2 Kelly’s Rep. 191.</p> <p>The second kind is of a very different nature from the first, it is permitted when the marriage was just and lawful, but for some cause after the marriage, the parties may be separated, for a definite, or indefinite time, and the relation of husband and wife still subsists between the parties, and the law contemplates a reconciliation of the parties. 1 Bl. Com. 354; Shel. on Mar. & Div. 192-3.</p> <p>Now I assume the position, that this divorce is of the second kind, because the proof shows, that divorce was granted to the plaintiff in error; and secondly, because by the rules of law, it cannot be construed into a divorce of the first kind.</p> <p>1. When the record discloses that the proof was, that a divorce was granted, in another State, and no statute law of that State being pleaded, showing the nature of divorces in that State, the legal construction of such a divorce is, that it is a mensa et thoro, and the parties have the right to cohabit together again, or may intermarry a second time. 1 Bl. Com. 353-4; Shel. on Mar. & Div. 192-3; Head v. Head, 2 Kelly’s Rep. 191.</p> <p>2. The facts show that this was a divorce a mensa et thoro, and that the parties had a right to cohabit together again, or to intermarry a second time. 1 Bl. Com. 354; Shel, .on Mar. & Div. 192-3,</p> <p>There is no statute in this State prohibiting persons divorced in another State from intermarrying in the State of Alabama, and the court erred in the charge to the jury, and if they do intermarry, there is no statute of Alabama declaring the marriage null and void.</p>

Before the Hon. G. D. Shortridge. Action on the case, for injury done by plaintiff in error, to the house of defendants in error. Plea, not guilty, 1. The legislature may, from time to time, in establishing police regulations, prescribe the manner of exercising individual rights over property. Yanderbilt v. Adams, 7 Cowen, 351. The legislature may therefore authorize any municipal authority to abate nuisances within its jurisdiction. Ib. 2.

<p>Error to the Circuit Court of Shelby. Before the Hon. G. D. Shortridge.</p> <p>Assumpsit by the plaintiffs in error. From a bill of exceptions, it appears that the action was founded on a note of the defendants, payable to the plaintiffs, nine months after date, at the office of Rhea, Sykes & Co., Mobile, Alabama. That it was protested for non-payment, and placed in the hands of an attorney for collection. That whilst in his hands, defendants wrote to plaintiffs, who resided in New York, to “return the note to Rhea, Sykes & Co. our agents in Mobile, who will pay it on presentation.” That upon this request, plaintiffs sent the note to Rhea, S. Co., and informed the defendants they had done so. That the defendants sent cotton to Rhea, S. & Co., who were their factors, which they sold, and delivered the note to defendants, in accounting for the proceeds of the cotton; but never paid it to plaintiffs. Rhea, S. & Co. have failed.</p> <p>The plaintiffs asked the court to charge, that upon the facts as above stated, if believed by them, they were entitled to recover ; which charge the court refused to give, and they excepted. This is now assigned as error.</p> <p>The letter requesting plaintiffs to send the note to Rhea, Sykes & Co., was in such terms as authorized plaintiffs to send the note directly to Rhea, Sykes & Co.; and if so, Rhea, Sykes & Co. were the agents of defendants, and defendants were bound to see to the proper application of funds placed in the'hands of their agents, and if they placed means in their hands for the payment of the note, which was never paid to plaintiffs, they are still liable, although Rhea, Sykes & Co. delivered them the note.</p> <p>But if Rhea, Sykes & Co. were not the agents of Kidd & Co., but the agents of Cromwell, Haight & Co., then the transfer of the note in satisfaction of a previously existing liability of Rhea, Sykes & Co. to Kidd Sf Co., was no payment of the note, and Kidd Co. are still liable to plaintiffs for the amount of it. Bailey on Bills, 114, note, v; 5 Johns. Ch. 54; Johns. Rep. 637; Bailey on Bills, 131, and note, g; lb. 133-4 and 394, note, 62.</p> <p>If Rhea, Sykes & Co. were the agents of both, Kidds are liable. Chit, on Bills, 201-2. And if either of these positions be right, the court erred in refusing the charge requested. The plaintiff could sue upon the original consideration, beyond doubt, under the circumstances of this case. 10 Ala. Rep. 755.</p> <p>1. There was evidence tending to show, that Rhea, Sykes & Co. were the agents of the plaintiff, to receive the money due on the note, and that they were also the agents of the defendants to make the payment of the note. As Rhea, S. & Co. were thus the agents of both parties, the note was discharged as soon as they received .the money appropriated by the defendant for its payment. It can make no difference that they received the money from the proceeds of the sales of defendants’ cotton. It is enough if they received the money, as the agents of the plaintiffs for that purpose, and surrendered the note bona fide to the defendants.</p> <p>The evidence shows, that the note was made payable at the office of Rhea, Sykes & Co. at Mobile — that it had been in their possession before its maturity; and that they were the agents of the plaintiffs to receive the payment, and to surrender the note on receiving the money. If the plaintiffs have never received their money from their agents, Rhea, S. & Co., that gives them no right to compel the defendants to pay the note a second time. The plaintiffs must look to Rhea, S. Sf Co. for their money.</p> <p>The charge asked by the plaintiffs’ counsel was properly refused, because it assumes that the defendant is liable in this action, if Rhea, Sykes Sf Co. were the agents of the defendants, and have never paid over the money to the plaintiffs, although Rhea, Sykes & Co. were the agents of the plaintiffs, as well as the agents of the defendants. There was no error in refusing to give the charge, because it does not refer to the jury the question, whether Rhea, Sykes fy Go. were not the agents of the plaintiffs, to receive payment of the note, and to surrender the note. Only a- small portion of the evidence is set out in the bill of exceptions, and no error is affirmatively shown, in the refusal to charge as asked by plaintiffs. The evidence on which the charge was based, is not pretended to be set forth. But only a small portion of the evidence is set out, and the request to charge does not even profess to be based upon the portion thus set forth. All presumptions are made against the party excepting.</p>

Writ of Error to the County Court of Wilcox. The defendant in error, sued the plaintiff, as drawer of a bill of exchange for $10,000. After the writ was issued, the plaintiff sued.out an ancillary attachment, which being levied, and returned, the plaintiff in error filed a plea in abatement to this process, to which plea the defendant in error demurred, and the demurrer was sustained.

Before the Hon. John Bragg. Trtal of the right of property, in which the plaintiff in error was claimant.

Assumpsit, by the plaintiffsjn error. Before the Hon. G. W. Stone. The action was brought to recover for advances of money and merchandize, on cotton in store. ■ The defence was, that the cotton was destroyed under such circumstances as authorized the defendant to recoup the damages.

Before the Hon. S. Chapman. • The plaintiff in error was indicted, in the circuit court of Pickens county, for playing a game at cards. The indictment contains several counts — one for playing cards at a public place, another for playing cards at a place where spiritous liquors were retailed. There were other counts, not necessary to be noticed.

<p>I. A creditor, who obtains a judgment, after a sale of the debtor’s land under judgment and execution against him, and before the expiration of the time allowed by the statute for redemption, may redeem the land from the first purchaser.</p>

Before the Hon. D. G. Ligón, Chancellor. Held: that the real estate must be sold before they should be for the payment of debts. In Adams v. Breckett, 5 Mete. 280, as in several other cases, the question was between heirs, devisees, &.C., and not between them and creditors, claiming as such, to be cestui que trust under a will.

Writ of Error to the Circuit Court of Montgomery. Before-the Hon. Of. D>. Shortridge. The defendant in error, as the administrator of Mrs. Clough, brought detinue against the plaintiff for a slave. The defendant below pleaded the general issue, and the statute of limitations of six years.

Writ of Error to the Circuit Court of Mobile. Before the Hon. John Bragg. Trespass to try title to a lot of land in Mobile, by the plaintiff in error against the defendant in error.

<p>1. The widow can claim nothing from advancements made by the husband to his children, and by them brought into hotchpot.</p> <p>2. When the decree made by the orphans’ court, gives to the widow the benefit of the advancements made to the children, and this fact appears in the decree itself, the error may be revised in the appellate court, without a formal exception to the action of the orphans’ court.</p>

Before the Hon. W. W. Mason, Chancellor. Harwell filed his bill against Y^ilkinson, Woodruff and Glenn, alledging, that on the 19th July, 1839, Glenn informed him that Woodruff was the owner in fee of many valuable tracts of land, in Macon county, and that he, Glenn, was his authorized agent to make sale of the same; and complainant being desirous to purchase, and believing the statements made by Glenn, he entered into a contract with him, as such agent, and purchased the…

Writ of Error to the Orphans’ Court of Dallas. The defendant in error, moved the orphans’ court, to amend the original order, made six years previously, so as to authorize him to keep the estate together, under the act of 1835, which motion-the court ailowed, though there was no evidence of record that such order had been originally made. The plaintiff in error also objected to the compensation allowed the administrator.

Judgment by his Honor George W. Stone. Case for a malicious prosecution, by the plaintiff in error, against the defendants in error. Held: that there was no proof against Burns and and Simmons, and instructed the jury to find a verdict of not guilty as to them; to which the plaintiff excepted. Burns was then introduced as a witness for the defendants, and the plaintiff again excepted. These matters are now assigned as error. . 1.

The plaintiff in error, administrator de bonis non of the estate of William Phelan, deceased, represented the estate to be insolvent, and it was accordingly so declared, no creditor appearing to show cause; and no nomination being made by the creditors, he was continued in the administration, an order made that all creditors should file their claims, and a day set for auditing them.

Errror from the 28th Chancery District. Before the Hon. D. G. Ligón, Chancellor. The bill was filed by the plaintiff in error. The facts, as shown by the bill* answers, and proof, so far as they are material to the points decided by the court, may be thus briefly stated.

Assumpsit by the defendants in error against the plaintiffs in error, as indorsers of a bill of exchange, drawn in this State, payable at the Union Bank of Louisiana. Judgment being rendered by default, the defendants here assign for error, that damages were calculated by the clerk at fifteen instead of ten per cent. relied on the case •of Crawford v. The Br. Bank at Mobile, 6 Ala. 12. / By § 4, p. 381, Clay’s Dig., (Damages,) the damages are 15 per cent.

Writ of Error to the Circuit Court of St. Clair. Before the Hon. G. D. Shortridge. This was an appeal from a justice of the peace to the circuit court; and the amount being under $20, was tried by the court, without a jury. A bill of exceptions was taken to the judgment of the court, which brings to view the evidence, and on which the circuit court rendered judgment in favor of the defendant in error for $10.

Before the Hon. E. Pickens. The facts of the case sufficiently appear from the opinion (of the court. The sale in this case has all the usual badges of a legal fraud. 1. A debtor in failing circumstances conveys all his property to his relation for a consideration to be paid ; and after the sale, which is absolute-on its face, retains the possession. And the fact that specie was demanded on an execution, is a prominent inducement to the sale. The sale also was secret.

Before the Hon. G. Goldthwaite. This was an action of debt at the suit of the plaintiff, in error, on a bill single for $ 127 25. The cause being submitted to a jury, a verdict was returned for the defendant, and judgment was thereon rendered. Upon a bill of exceptions sealed at the plaintiff’s instance, the following points are now presented for consideration. 1.

Writ of Error to the County Court of Marengo. Daily, sued Hudson in debt, and an ancillary attachment was issued, and returned. The defendant filed two pleas in abatement of the ancillary attachment — one that the plaintiff was a resident citizen of Yirginia, the other, that no suit was commenced before the issuance of the attachment. To those pleas in abatement, there was a demurrer, which was sustained.

<p>Error to the 20th Chancery District. Before the Hon. W. W. Mason, Chancellor.</p> <p>The facts of the case sufficiently appear from the opinion1 of the court.</p>

Detinue by Broughton, as the administrator of Thomas Hightower, against Banks and Adams severally for certain ■slaves. Actions commenced in January, 1845.

<p>1. Upon a writ of error sued out upon a final decree in, the orphans’'court ' against an administrator, he cannot assign for error, that he had been im-’ properly removed from the administration, by a previous decree of the court.</p> <p>2. An erroneous judgment, and award of execution, in favor of an administrator do bonis non, against a removed administrator, made previous to the passage of the act of 4th February, 1846, authorizing such a decree to be rendered, is not cured by the passage of that act.</p>

Error from the Lauderdale Chancery Court. Before the. Hon. W. W. Mason, Chancellor. The complainants, as the representatives of John Do nelson, filed their bill in the chancery court of Lauderdale, and-among other things, charged that the intestate, John Donelson, and one P. F. Pearson, now also deceased, were partners in merchandizing.

Assumpsit by the defendant in error, before his honor D. W. Sterrett. Upon the trial, as appears from a bill of exceptions, the defendant proved that he was surety upon the demand sued for, for one Robert H. Gregg, and then proved a written direction, from the plaintiff to Grigg, to furnish wood to the steamboat Dallas, to the amount of his indebtedness, if called for.

Before the Hon. D. Coleman. Trover, by the plaintiff in error, against the defendant. In the progress of the trial, a bill of exceptions was sealed at the instance of the plaintiff, which presents the following facts.

<p>1. P lent D a sum of money, taking his note for the payment; at the same time a parol agreement was entered into by the parties, that the borrower should pay the State tax on the loan, which was one fourth of one per cent. Held, that P was entitled to recover eight per cent, on the loan, and that the contract was not on its face usurious.</p>

Upon the final settlement, the administrator proved, that he had paid the widow $3,500 for her dower in the lands of the intestate. That he had sold the lands of the intestate under an order of the orphans’ court, and that the purchasers supposed they were purchasing free from the widow’s claim of dower, and that it accordingly sold for a larger price. The court refused to allow this item as a charge upon the estate.

Motion by the bank, against the plaintiffs in error, sureties of Daniel Chandler, sheriff of Perry county, for the amount of an execution collected by him, and five per cent, per month, from the time of making demand of payment. The notice was, that a motion for judgment would be made at the December term, 1846, of the county court of Tuscaloosa.

<p>1. H having received from S, property in pledge for his indemnity, lent his note to S for the purpose of raising money upon it. S lost the note at gaming, and the winner lost it in the same way. The third holder took it to H, who being ignorant of the facts, executed to him a new note, in lieu of the old one payable to him. After this, S notified H of the facts, and forbade the payment of the note. Held, that a payment by H, after notice, created no charge upon the property placed in his hands for his indemnity.</p>

Judgment by his Honor George W. Stone. Trespass to try title, by the plaintiffs in error. From a bill of exceptions it appears, that one Mary Wells, under the-2d article of the Creek treaty of the 24th March, 1832, was enrolled as the head of a family, and located on the land in controversy, and that the defendant was in possession at the commencement of this suit. The plaintiffs are the children of Mary Wells, who was not more than one-fourth of Indian blood.

Before the Hon G. W. Stone. Solomon Spence at a previous day of this term, filed his • petition, in which he represented, that at the last August election, he was duly elected sheriff of Talladega county, receiving 711 votes, Josiah Terry receiving 709 votes, and Givens 343 votes.

Before the Hon. George W. Goldthwaite. Trespass to try title, by the defendant, against the plaintiff in error. From a bill of exceptions it appears, that the title of the plaintiff consisted of a conveyance by deed, from Stroud Sf McLemore, the patentees of the land, which was executed in the fall of 1844.

Before the Hon. E. Pickens. Assumpsit by the plaintiff in error. It appears from a bill of exceptions, that the plaintiff, and one Vance, made a bet on a horse race of $250, which was placed in the hands of the defendant as stakeholder, and upon the conclusion of the race, the stake was paid over by the defendant, to Vance, after notice from the plaintiff not to pay over.

<p>Error to the Chancery Court of Benton. Before the Hon. W. W. Mason, Chancellor.</p>

Error from the Circuit Court of Dallas. Before the Hon. E. Pickens. The defendant in error exhibited his petition for writ of error coram vobis, and for supersedeas of an execution issued from the circuit court of Dallas county on a judgment in favor of the plaintiff in error, for the sum of $132 66 damages, besides cost of suit, upon the ground that the said judgment, since its rendition, had been fully paid off and satisfied by him.

Writ of Error to the Circuit Court of Macon. Before the Hon. G. W. Stone. This was an action of detinue at the suit of the plaintiff in error, for the recovery of certain slaves. The cause was put to the jury on the general issue.

Writ of Error to the Chancery Court of Macon. Before the Hon. D. G. Ligón. The plaintiffs in error filed their bill, in behalf of themselves, and all the other creditors of the firm of Thomas & Hunter, who would make themselves parties to the same as complainants, and would bear their proportion of the expenses thereof. They alledge, that Thomas & Hunter commenced business in Tuskegee, as partners, in March, 1844, did an extensive business, and realized good profits.