Volume 14 — Alabama Reports

Before the Hón. J. W. Lessesne. The bill was filed by the plaintiff in error for the rescission of a contract, by which he had purchased from one Herring, as the agent of Woodruff, a tract of land, executing his notes for the purchase money, and receiving a bond for title. The grounds upon which the rescission is prayed, are sufficiently set forth in the opinion of the court. The answers deny the equity of the bill, and proof was taken, for which see the opinion of the court.

Writ of Error to the Circuit Court of Benton. Before the Hon. G. W. Lane.

Writ of Error to the Circuit Court of Dallas. Before the Hon. E. Pickens. Ashley W. Spaight was summoned as a garnishee by the plaintiffs in error, to answer whether he was not indebted to James George, against whom the plaintiffs had an unsatisfied judgment. The garnishee appeared, and answered to special interrogatories. He denied that he was indebted to James George, but that George was indebted to him.

Before Hon. A. Crenshaw. , The bill filed by. the defendant in error, alledges that on September 6, 1844, one P. Chantron made an agreement with M. D. Eslava, by which Eslava agreed to lease to Chantron certain property in Mobile, and afterwards said Eslava executed a lease in writing to said Chantron for the same property for six years from November 1,1844; that on the sixth September, 1844, Chantron entered into a building contract, duly recorded in Mobile county clerk’s…

Before the Hon. W. W. Mason, Chancellor. The bill, which was filed by the plaintiff in error, alledg-es, that on the 5th October, 1839, the defendant Haynes, executed a deed of trust, the defendant Houston being the trustee. The deed recites, that Haynes was indebted to Crutchfield in the sum of $2,507.

Detinue for a slave, by the plaintiffs in error, before the Hon. E. Pickens. The questions of law arise out of a bill of exceptions, presenting the following State of facts. The plaintiffs claimed through a mortgage, executed by one Fleming, in Stewart county, Georgia, made to secure a promissory note of the same- date, for $725. The mortgage bore date in April, 1842, and the law day was one day after.

Writ of Error to the Circuit Court of Mobile. Before the Hon. John Bragg. The plaintiffs in error sued the defendants in assumpsit for goods sold and delivered to their testator. On the trial, a bill of exceptions was taken to the ruling of the court, which shows, that the plaintiffs offered as evidence to prove their account, the affidavit of Thomas Burton, that the entire account was just and true.

Assumpsit by plaintiff in error, as indorsee of a promissory note, made by the defendant’s intestate, to one Scott. Before the Hon. G. D. Frierson. The questions presented, arise on a1 bill of exceptions, from which it appears, that after the deceased executed said note, he passed to Scott as collateral-security, a note on three persons, for $1,200, and that Scott passed the collateral tb one Wood, for a valuable consideration.

Before the' Hon. A. Crenshaw. The complainant alledges in his bill, that about the 18th March, 1844, the Branch Bank at Mobile recovered two judgments against Samuel Johnson, one for $694 04, besides cost; the other for $591 90. That executions issued thereon, and came into the hands of the sheriff of Monroe, about the 5th of April, 1844, and that the said executions were levied by the sheriff of Monrde, on slaves, the property of Samuel Johnson.

The estate of William Rutherford being declared insolvent on the 14th July, 1845, certain claims were filed in the clerk’s office against said estate, on the 3d May, 1845, and on the 9th March, 1846, the plaintiffs in error filed a written exception to the allowance of these claims, because not verified by affidavit.

In 1832, the last will and testament of Thomns Welch, deceased, was admitted to probate, and Samuel Bowden and Martin McElroy were appointed administrators with the will annexed. Held: discharged the administrators from liability to the children of Mrs. Cunningham, to which they filed an ex-ceptive allegation. These matters are now assigned as error.

Before the Hon. W. W. Mason, Chancellor. The bill was filed by the plaintiff in error to rescind a contract entered into between him and Pitts for the exclusive right to use, sell and dispose of a certain patent invention called “ Pitts’ patent cotton cultivator.” The bill al-ledges fraud and circumvention, by which the complainant was induced to convey to Pitts for the right to use the said invention in certain States and Territories agreed on, nine hundred and twenty acres…

On the final settlement of the estate of William Rutherford, deceased, which had been declared insolvent on the 14th day of July, 1845, the defendant in error presented for allowance, as a claim as against said estate, a note made by William Bower, William Rutherford, John J. Greening, and H. W. Coleman, dated 10th December, 1842, payable twelve months after date, to B. Gayle, cashier, or bearer, for $19,-899 44, with interest from date, negotiable and payable at said Branch…

Writ of right before the Hon. John Bragg. Held: that notwithstanding this act, the writ of right would lie, then the intention of the legislature must have been to increase, and not to diminish the remedy for the recovery of real estate. Was it the intention of the legislature merely to give a cumulative remedy ? If so, the language employed is inappropriate.

Writ of Error to the Chancery Court of Shelby. Before the Hon. D. G. Ligón, Chancellor.

Detinue for four slaves, by the defendants in error, as trustee for Rebecca Mitchell, and her children, before the Hon. E. Pickens.

Before the Hon. A. Crenshaw, Chancellor. The bill was filed by the defendants in error, for the purpose of rescinding a contract for the sale of some slaves, made in Texas between the plaintiffs in error, and William Judge, by which the latter, in consideration of a house and and lot, in Austin, Texas, conveyed certain slaves to the former.

Detinue by the defendants in error for a slave, before the Hon. Geo. Goldthwaite. The questions of law arise out of a bill of exceptions, from which it appears that the plaintiffs claimed title to the slave sued for, as trustees in a deed executed by Samuel D. Carter ■of the first part, the plaintiffs as trustees of the second part, and John B. Cook, creditor, of the third part, and is dated the 3d October, 1838.

Writ of Errror to the 16th Chancery District. Before the Hon. D. G. Ligón. William Rogues, the complainant, executed to Joseph L. Cunningham a deed of mortgage of certain slaves, on the 15th day of May, 1841, to secure the payment of a promissory note for $3,620, and by the terms of the mortgage, Cunningham had the right to sell the slaves, or so many thereof as were necessary to pay said note, on giving ten days’ notice.

Writ of Error to the Circuit Court of St. Cl/ijr., ,Re£ the Hon. G. D. Shortridge. This was an action on the case, at the suit oiNtee detenc ant in error, against the defendant below, as sherinf’ fusing to permit the plaintiff to replevy certain slaves, which the former had levied on under an attachment against the estate of the latter.

Writ of Error to the Circuit Court of Benton. Before the .Hon. G. W. Stone. The defendant in error declared against the plaintiffs in as-sumpsit. The substance of the declaration may be thus stated: Smith, the plaintiff below, held two notes on War-nock, one for $62, the other for $110.

Detinue, by the defendants in error, for a negro man slave named Turner, before the Hon. G. W. Stone. The questions presented by the assignments of error, arise out of a bill of exceptions. The defendant, who was sheriff of Talladega, introduced his deputy, Andrew Lawson, by whom it appeared, that as such deputy, he levied an execution, on the 19th September, 1846, in favor of Joel Dodson, against Weldon S. Dye, for $75, besides costs, upon the slave sued for.

Writ of Error to the Chancery Court, sitting in the 40th District and Northern Division of the State of Alabama. Before the Hon. W. W. Mason.

Writ of Error to the Circuit Court of Barbour. Before the Hon. G. D. Shortridge.

Writ of Error to the Circuit Court of Lowndes. Before tiie Hon. E, Pickens. This ivas an action of detinue, brought by the plaintiff in error against the defendant, for the recovery of two slaves. On the trial, a bill of exceptions was taken, which presents the following facts.

Asstmpsit by the defendant in error, on a promissory note executed by the plaintiff in error, before his Honor E. Pickens. From a bill of exceptions it appears, the defendant proved that the note sued on was given for what appeared to be the balance due on two notes, made by the firm of Ferrand and Jones, composed of the defendant and Ferrand.

This was a motion to quash an execution issued on a forthcoming bond. The bond was executed in 1844, and was taken by the bank agent appointed under the act found in Clay’s Digest, 118, § 86. The levy of the execution was made in Clarke county.

This was a proceeding before his Honor D. W. Sterrett, for a settlement of the accounts of the defendants in error, guardians. The only question presented for revision, is the liability of the guardians, for a note of $1,840 69, dated the 21st November, 1843, and due the first January after, executed payable to said guardians by T. Starke, with Samuel Forward as his surety.

Writ of Errror to the Chancery Court of Perry. Before the Hon. D. G. Ligón. The plaintiffs in error file their bill, alledging they became securities for Richard P. Watson, as deputy post master at Marion, in the county of Perry, and that suit was instituted against him as principal, and against the complainants as securities, for a default in the condition of the bond, and a recovery was had against all, and they have paid over two hundred dollars on the judgment.

Assumpsit by the plaintiffs in error, before his Honor H. Brown.

Hon. D. G„ Ligón, Chancellor. Bill filed by tlie plaintiffs in error, for an injunction. The bill charges, that the company had performed all the acts made necessary by their charter, to procure the right of way over a strip of land belonging to the defendant, and that they have been prevented from going on with their work, by the threats of the defendant, that he would kill, or injure their agents, if they attempted to work on the land set apart for the use of the road.

Before the Hon. A. Crenshaw. The bill was filed by the plaintiff in error, and charges, that he purchased a tract of land of the defendant, at the price of $20 per acre, which is described by its designation at the land office.

Writ of Error to the Chancery Court of Shelby. Before the Hon. W. W. Mason. The plaintiffs in error file their bill, alledging that John Edis Hughes, departed this life intestate, and that Simon Chapman took out letters of administration on his estate, which were granted by the orphans’ court of Shelby. That the estate was reported insolvent, but the administrator has paid all the debts, and having come to a final settlement he was discharged from the administration.

Writ of Error to the Circuit Court of Mobile. Before the Hon. John Bragg. The nature of the case sufficiently appears from the opinion of the court. The charges of the justice assumed, hypothetically, the existence of the following facts, which the testimony shows did not exist. That such charges are erroneous, vide Chir. v. Rei. 2 Pet. 625; 4 Porter, 523-4. 1. That Housefield was in peaceable possession.

Before the Hon. J. Bragg. The defendants in error sued the plaintiff before a justice •of the peace, for the sum of $50, for violating the act of 1841, by employing an engineer who had not obtained a certificate from the company, of his competency and skill as an engineer, according to the directions of the act, and making a trip from Mobile to Montgomery with an engineer who had not obtained a certificate.

Writ of Error to the Circuit Court of Barbour. Before the Hon. Geo. Goldthwaite. The plaintiff in error recovered a judgment against Anthony Stow, for $4,082 27, besides costs, on which he caused a writ of fieri facias to be issued, and placed in the hands of the sheriff of Barbour, on the 17th May, 1847. This writ was levied on several slaves and other property, real and personal.

Writ of Error to the Circuit Court of Mobile. Before the Hon. J. Bragg. The defendants in error moved the circuit court for judgment against the plaintiffs, on a promissory note made by them, bearing date the 5th of January, 1843, for the sum of $8,900, due at six months.

Before the Hon. E. Pickens. This was an action brought by the defendant in error, against the plaintiff in error, for the seduction of the daughter of the defendant.

<p>1. To render one liable to an indictment for retailing spiritous liquors, in quantities not less than a quart, and permitting the same to be drunk on his premises, the liquor must be drunk in some place, over which he has the legal right to exercise authority, or control.</p>

Before the Hon. J. Bragg. Motion by the plaintiff in error, for satisfaction of a judgment obtained by the defendant in error against him, and to quash an execution which had issued against him on the judgment. Upon the trial of the motion, the following facts were in evidence.

Before the Hon. J. Bragg. Case by the plaintiff in error, against the defendants, as common carriers. Upon the trial, the plaintiff proved that the defendants were the owners of the steamboat Montgomery, and that the boat was used for the purpose of transporting for hire, goods and merchandize.

Assumpsit by the defendant in error. The declaration contains two special counts, and the common money counts. There was a demurrer to the two special counts, which was sustained, and a trial was had .on the money counts.

Hon. W. W. Mason, Chancellor. The bill was filed by the plaintiffs in error, who are infants, and alledges, that on the 28th February, 1794, in the State of Georgia, one Barrett Brewer, and Melinda Pollard, the grandfather and grandmother of the complainants, in contemplation of a marriage about to be solemnized between them, entered into a marriage contract, which is made an exhibit to the bill.

Before the Hon. J, D. Phelan. Motion by the plaintiff in error, against the defendant, as sheriff, suggesting that by proper diligence, he could have made the money on an execution, which came to his hands, in favor of the plaintiff, against J. M. Friou.

The plaintiff in error sued the defendant for money had and received. The following facts were agreed on: Richard Inge was seized in fee of certain lands, and in March, 1841, made a deed of trust, by which he conveyed them to the defendant, and Herndon, in trust to pay his debts, de-cribed in the deed. The plaintiff in error was his wife, and now his widow, but she did not join in the deed, nor relinquish her dower.

Writ of Error to the Circuit Court of Marengo. Before the Hon. E. Pickens. Motion for judgment by the defendant in error, against David Curry, late sheriff of Marengo, for failing, by proper diligence to make the money on an execution. Pending the motion, Curry died, and the plaintiff in error, as his administrator, appeared in his proper person, made himself a party defendant by consent, and waived all irregularity arising therefrom.

Before the Hon. A. Crenshaw, Chancellor. The bill was filed by the defendants in error, distributees of Peter Olson, subjects of the king of Sweden. That Peter Olson, took upon himself the name of Wilson, and settled in Baldwin county, where he died, and administration was granted upon his estate to one John Thompson, on the 3d September, 1839. That the estate was sold, and the account sales returned, amounting to $1,307 24.

Before the Hon. J. Bragg. This was an action of assumpsit, for goods sold and, der livered, and also a count for money had and received.

Before the Hon. J. Bragg. Assumpsit by the defendant in error, on a promissory note, payable to B. Gayle, cashier, or bearer, made by the defendant’s intestate. The declaration describes the note thus, and alledges a promise to the bank. The defendant demurred to the declaration, which being overruled, she pleaded the general issue, and the statute of non-claim.

Before the Hon. A. Crenshaw, Chancellor. The bill was filed by the defendants in error, creditors of Charles and William McCall, on behalf of themselves and other creditors of C. & W. McCall, against Pinkston & White-sides, as trustees in a deed of trust, executed by C. & W. McCall.

Debt by the defendant in error, against the plaintiff in error, and his sureties, on his official bond, as late clerk of the circuit court of Monroe county.

Clair. Before the Hon. J. D. Phelan. Debt on the official bond of Elbert L. Gibson, sheriff of St. Clair. The breaches assigned are, that he levied certain writs of attachment of the plaintiff, against the Mississippi and Alabama Rail Road Co., on certain slaves; that judgments were obtained against the defendant in attachment, but that on demand, the slaves were not delivered to satisfy the judgments.

The facts appear sufficiently in the opinion of the court. The demurrer to the first and second counts in the plaintiff’s declaration should have been overruled. If a covenant is secured by a penalty or forfeiture, the party may either bring an action of debt for the penalty, and recover the penalty, or he may proceed upon the covenant and recover more or less than the penalty. Per Ld. Mansfield, 4 Burroughs’s Rep. 2225.

Before the Hon. A. Crenshaw, Chancellor. The bill was filed by the defendants in error for an in-¡ junction to a judgment at law,-'obtained originally by the’ plaintiffs in error against Melville Bracey and Hugh Jones, in the county court of Monroe, which was superseded by a writ of error bond to the supreme court, and there affirmed.

The defendant in error, administrator tie bonis non of Wil-loughby Barton, petitioned the orphans’ court of Mobile county, for leave to sell the land of the deceased, upon the allegation that the personal estate had all been administered, that the estate had been declared insolvent, and there, were debts still unpaid.

Before the Hon. G. D. Shortridge. This was an action of trespass to try title, and recover damages, brought by Benjamin H. Nelms, the defendant in error, against the plaintiffs in error, for a certain house and lot, situate in the town of Marion, Perry county.

Before the Hon. J. Bragg. The defendants in error issued an execution against Benjamin M. Gressett, which being levied on certain slaves, they were claimed by the plaintiff in error, as the administrator of William J. Gressett, sr. deceased.

Writ of Error to the Circuit Court of Dallas. Before the Hón. E. Pickens. Assumpsit by the defendant in error. All the questions presented for revision, arise on a bill of exceptions, reserved at the trial by the plaintiffs in error. The plaintiff produced, and read to the jury, the note declared on, and also claimed for a quantity of corn furnished the plantation of defendant’s intestate, in the year 1840, and his wages as overseer in the year 1841.

Before the Hon. A. Crenshaw, Chancellor. Bill by the plaintiff in error, for dower in certain lots in the city of Montgomery. The bill alledges, that the husband of complainant was, during the intermarriage, the owner in fee of the lots, by purchase from the Alabama company; that he paid for the same, and received bond for titles. That he afterwards sold and conveyed the lots to different purchasers, by whom they were subsequently sold, and conveyed to the defendant.

Before the Hon. J. D, Phelan. Trespass to try the title to land, by the plaintiff against the defendant in error. On the trial of the cause, the plaintiff introduced a deed made by the sheriff of Perry, conveying the land in controversy to him. This deed was made on the 4th March, 1844, and recites that he had sold the land to the plaintiff, in virtue of an execution against John Scarborough, in favor'of Jacob McElroy, on a judgment for $ 157 12, and $>78 56 costs.

<p>I. A note of the following tenor — “ Received of R. B. P., six hundred and fourteen dollars ninety cents, which I am to account for. 4th December, 1843. Signed, William Cleaver,” — indicates an absolute indebtedness, on which a suit may be instituted, without a previous demand.</p>

On points referred to this Court from the Criminal Court of Mobile. Before the Hon. John E. Jones. The defendant was indicted for betting at a certain gaming table commonly called pool, which said table was then and there kept, exhibited, and carried on for gaming.

Before the Hon. G. W. Stone. The plaintiff in error brought detinue against the defendant for the recovery of two slaves.

Writ of Error to the Comity Court of Mobile. This was an appeal from the judgment of the mayor of the city of Mobile. The plaintiff in error had committed an assault and battery upon the person of one Charles Cullum, within the corporation limits of the city of Mobile, which assault and battery was in violation of an ordinance of the city which was then in force,-and imposed a fine of $50 for a violation of its provisions.

Writ of Error to the Circuit Court of Lowndes. Before the Hon. E. Pickens. Assumhsit by the defendant in error. The action was brought by the plaintiff,' to recover money which he had been compelled to pay as contribution to a co-surety, and against the consequences of which he was indemnified by the plaintiff in error.

Novel and difficult questions from the Circuit Court of Sumter. Before the Hon. Geo. Goldthwaite. The defendant was indicted for an assault with attempt to murder with a pistol. The indictment contains two counts, in both of which it is charged that he assaulted the prosecutor, with an attempt, him, &c. to kill and murder. After conviction, the prisoner moved in arrest of judgment for the insufficiency of the indictment.

The estate of Alexander J. Jude was declared insolvent on the 7th April, 1847, and on the same day the plaintiff in error filed its claim, with an affidavit made by F. S. Owen, the secretary of the board, and the principal executive officer of the institution. At a subsequent date, on the 16th August, 1847, the same claim, with the same affidavit was filed.

Before the Hon. J. Bragg. Debt, by the plaintiff in error, on the official bond of the defendant, as guardian. The facts sufficiently appear in the opinion of the court. 1. Under the issue joined, the burden of proof was upon the defendant, and the court should have charged so. The plea of performance is an affirmative plea, and the burden of proof lies upon the defendant. Edmonds v. Edmonds, 1 Ala. Rep. 401 ; Barnett v. Cruther, 3 Bibb, 202.

The plaintiff in error filed a copy of his claim against the-estate of Alexander J. Jude, with an affidavit of its justice,, made before a justice of the peace, objections being taken to-it, that the original was not filed in time, the court refused to permit it to be filed, and verified at the settlement of the estate, to which the plaintiff excepted. This is now assigned as error. The case in 12 Ala. 191, does not apply.

Writ of Error to the Circuit Court of Lowndes. Before the Hon. N. Cook. Assumpsit by the plaintiff in error. The defendant, among other pleas, pleaded the statute of non-claim. To remove the bar of the statute of non-claim, the plaintiff proved that a suit had been instituted on this demand, against the administrator, within eighteen months after the grant of letters of administration. It also appeared, that the plaintiff in said suit, submitted to a non-suit.

<p>Error to the County Court of Mobile.</p> <p>• The facts will sufficiently appear in the opinion.</p>

Writ of Error to the Circuit Court of Tuscaloosa. Before the Hon. T. A. Walker. The plaintiff in error declared in assumpsit, against the defentant, on a promissory note made by defendant in error, for #125, payable to Thomas B. Favor, and by him indorsed to the plaintiff. The defence relied on was a set off of a demand due from the payee, Thomas Favor,- to the defendant, as an attorney, for attending to two suits against Favor by the Bank.

On points referred as novel and difficult from the criminal court of Mobile. Before the Hon. John E. Jones. The defendant was indicted for betting at a gaming table called a pool table, which indictment was found at the November term, 1847. The jury found a special verdict, finding that the defendant did bet at the game of pool, as charged, and described the game as a combination of skill and chance, played upon a billiard table.

This was a proceeding in the orphans’ court of Greene county, upon a final settlement by the plaintiff in error, as administrator of the estate of Francis Wilks, deceased.

The defendant in error, as assignee in bankruptcy, declared in assumpsit against Paletiah Chilton, and alledged, that on the 7th of April, 1839, Rezin R. Chilton, before he became a bankrupt, with one A. R. Chilton, became the security of the plaintiff in error, in six promissory notes, under seal, payable to Benjamin Silman, guardian of Mary Harding* which notes amount to $2,696 67.

Writ of Error to the Criminal Court of Mobile. Before the Hon. John E. Jones. James Y. Blocker, having been summoned as a witness before the grand jury, appeared, and being asked by the solicitor, whether he knew of any gaming in violation . of the laws of the State, answered that he did.

Before the Hon. J. Bragg. Trial of the right of property, in which the defendant in error was claimant.' The plaintiff claimed under a levy upon certain slaves, under an execution against Robert B. Patterson. The plaintiff proved possession in Patterson before, and at the time of the levy. The claimant was coroner of Clarke county, and as such levied certain executions on the slaves in question, and offered in evidence the executions, and the returns made thereon.

Before the Hon. S. Chapman. Assumpsit by the plaintiff in error, against the defendant in error, in the county court of Talladega. The facts upon which a recovery was sought, may be thus stated. Camp sued one English, and pending the suit, sued out an ancillary attachment, which was levied on certain slaves, and replevied by English, with Nabors as his surety, but the replevy bond was made payable to the sheriff, instead of being taken to English, the plaintiff.

Writ of Error to the Circuit Court of Sumter. Before the Hon. G. Goldthwaite. This was an action of assumpsit brought by Gibbs against Wright. The declaration contains all the common counts. At the trial, the plaintiff proved, that he being indebted to one Arrington, and Arrington to the defendant, Wright, drew a draft for about $3,600 payable in Richmond, Ya. which Wright passed to the credit of Arrington, and Arrington to the credit of Gibbs.

The witness was interested and incompetent — no release was executed to him. In an action against stage proprietors for negligence of the driver, driver is not a good witness without a release under seal. 2 Harrington’s R. 481. A plea of release would not be sustained by instrument not under seal. 2 lb. 481; 1 J. J. Marsh. 446 ; Logan v. Austin, 1 Stew. 476. A release must be under seal. Roscoe’s Ev. 82 : 4 Term Rep. 589; 13 Johns.

The defendants in error offered for probate a copy of the last will and testament of Walter McBeth, alledging that the original was duly executed by the deceased, in the presence of the witnesses, who attested the same; and that at the time-of the execution of the will, he was of sound mind, and disposing memory. That since the execution of the will, it has been lost or mislaid, so that the original cannot ,be produced.

Before the Son. D. G. Ligón, Chancellor. The question presented by the bill, answer and proof, is, whether a mortgagor, after a judgment obtained at law by the mortgagee, for the debt secured by a mortgage on lartd, and sale of the mortgaged premises by execution issued oil the judgment, can file a bill to redeem. The chancellor, at the hearing, granted the relief sought by the bill, and di 1.

Before the Hon, J. D. Phelan. The first charge refused was in these words: That upon the state of facts specified in the bill of exceptions, the defendant could not be convicted under the indictment. The indictment is founded on the statute of 1843, Clay’s Dig. 419, § 18. But that statute can only be applicable to this State, as it makes that larceny in this State, which was not larceny at common law.

Novel and difficult questions from the Criminal Court of Mobile. Before the Hon. John E. Jones. Thu defendant Wragg was indicted and convicted in the criminal court of Mobile, under the seventh section of the act approved the 29th February, 1848, entitled an act to prevent frauds in sampling cotton, and for other purposes. Upon the triál, it appeared in evidence, that he was a purchaser of cotton, but never sold any.

The defendant in error, having obtained judgment against the plaintiffs in error, and issued execution, which was placed ill the sheriff’s hands, he returned it “ settled in bank.” The bank moved the court to set aside this return, and for leave to issue another execution, and it being proved that the return was false, and the judgment unsatisfied, and that due notice had been given of the motion, set aside the return, and granted the motion. To which the defendants excepted.

Writ of Error to the Circuit Court of Sumter. Before the Hon. G. Goldthwaite. There is but one error assigned in this case, which.is upon the charge of the court, as set forth in the bill of exceptions. That charge was, that in an action against an attorney for neglect in the collection of a note, the attorney’s receipt describing the note, is prima facie evidence of the justness and genuineness of the same.

Clair. Before the Hon. G. D. Shortridge. Assumpsit for money paid, laid out and expended by the defendant in error.

Before the Son. N. Cook. Assumpsit by the plaintiff in error. The declaration containing the common counts does not disclose that .the plaintiffs are husband and wife, but counts in assumpsit, on promises, to the plaintiffs jointly. Pleas, non assumpsit, statute of limitations, set off, and payment.

<p>1. The revocation by the county court, of a license which had previously issued, is not a matter which can be inquired of by writ of error. Whether, if the action of the court was erroneous, it might not be controlled by mandamus — quere.</p>

Writ of Error to the Circuit Court of Coosa. Before the Hon. Geo. Goldthwaite. The defendant in error, brought assumpsit against the the plaintiff, as indorser of a promissory note, made by John'' W. Bishop to the plaintiff, Bradford, and by him indorsed to the defendant. The declaration avers the making of the note by John W. Bishop to Bradford, and that he on the same day indorsed it to the defendant in error, for a valuable consideration.

Writ of Error to the Circuit Court of Tuscaloosa. Before the Hon. T. A. Walker. John W. Beall, having judgment against Lewis Ledlow, sued out a fieri facias thereon, which was levied on a slave by the name of Joe, and thereupon Adam Ledlow interposed a claim to the property.

Before the Hon. D. G. Ligón, Chancellor. made the following points: 1. That the parents took an estate for life, by implication; or, 2. That the parents, during their lives, and the life of the survivor, were entitled to the possession and use of the property for the purpose of supporting themselves and rearing their children, and that the right of the children to the possession, was intended to be postponed until after the death of their parents.

Before the'Hon. G. W. Stone. A judgment on motion, was rendered against Fitzpatrick, as sheriff of Macon, and his sureties, for failing to pay over $570, collected by Fitzpatrick, as sheriff, on an execution issued in favor of the defendant in error against George Stone and others.

Writ of Error to the Circuit Court of Barbour. Before the Hon. J. D. Phelan. Trial of the right of property. The plaintiffs in error' claimed title to a negro slave, levied on by the defendant in' error, by execution against Anthony Stow. From a bill of exceptions it appears, that the claimants derived title under a mortgage executed by Stow. The defendant relied on the levy of an attachment on the slave,previous to the date of the mortgage.

Before the Hon. G. W. Stone. The plaintiff was indicted as the overseer of a road, and there being a variance, as to the allegations, and the proof, in the description of the road, and the defendant refusing to permit an amendment to be made, the court permitted the solicitor to enter a nol. pros., with leave to, prefer a new indictment, binding the defendant over to answer the new bill. This is now assigned as error. 1.

Before the Hon. G. W. Stone. Debt, against the plaintiffs in error, as security of Nabors, sheriff of Pickens county, in his official bond. The declaration sets out the bond, and assigns two breaches of the condition. First, the failure of the sheriff to make the money oaa.fi. fa. described in the declaration,• second, for not paying over the money collected by him on the fi. fa.

Writ of Error to the Circuit Court of Barbour. Before the Hon. J. D. Phelan. The plaintiffs in error were indicted for living together in adultery.

Before the Hon. E. Pickens. Debt, by the defendant in error, on a promissory note for $162, dated January 6th, 1842, payable 25th December, after, signed by the plaintiff in error, H. Boxley, and J. M. Hendricks. Pleas, nil debet and non est factum. Upon the trial, as appears from a bill of exceptions, the plaintiff called Boxley, the principal in the note, as a witness, to prove that he signed the name of the defendant to the note by his authority.

<p>1. When the object and intent of a deed is to hinder and delay creditors, and both grantor and grantee participate in it, the deed is void as between a creditor, and the fraudulent grantee, though there may be included in the deed a valid debt, due to an infant ward of the grantee.</p>

Writ of Error to the Clerk of the Circuit Court of Dallas-Before the Hon. N. Cook. Assumpsit by the defendants in error, on a promissory note-for $4,455 76. The defendants, among other pleas, pleaded the statute of limitations, to which the plaintiff replied, m subsequent promise within six years.

Error from the Circuit Court of Talladega. Before the Hon. G. W. Stone. This suit was originally commenced in the county court of Talladega, by the plaintiff, against the defendant in error, in assumpsit, upon the indorsement óf a due bill. Upon the trial, a witness proved, that the defendant bet the note sued on, with one Conner, at a game of cards, played by the witness, and Conner.

Before the Hon. G. W. Stone. “ Mayberry Lovejoy sued Robert Nelson, before a justice of the peace, on a note for $27 44. Judgment was rendered by the justice in favor of the plaintiff, and Nelson removed the cause by certiorari to the circuit court.

Error, to the Circuit Court of Tuscaloosa. Before the Hon. G. D. Shortridge. Motion by the defendant in error, to tax the costs of a suit instituted against him by John J. Webster, against the plaintiff in error, for whose use, and at whose instance, a suit was unsuccessfully prosecuted by Webster against the defendant in error.

1. The orphans’ court had no authority to settle with, or discharge the defendants in in error, for the administration of their deceased testator, on the estate of James Wade, deceased. Taliaferro, Adm’r, v. Bassett and wife, 3 Ala. 670 ; Snedicor v. Carnes, 8 Ib. 655. 2. There is no limitation to suing out a writ of error from the orphans’ or chancery court, except in certain special cases, in matters pertaining to insolvent estates, &c. Clay’s Dig. 309, 17; Ib. 285, 1, 4.

Writ of Error to the Circuit Court of Montgomery.- Before the Hon. Geo. Goldth waite;- This was a qiii tarn action, brought by the defendant in error against the plaintiff, to recover two penalties of a hundred dollars each, for taking up and using two stray oxenr Without complying with the statute in regard to estrays.

Writ of Error to the Circuit Court of Randolph. Before the Hon. G. W. Stone. Debt by the defendant in error, upon a bond payable to him, executed by the plaintiffs in error, upon suing out an original attachment. Upon the trial of the cause, the defendants offered evidence conducing to show, that about the time the attach-' ment was sued out, the plaintiff was about to dispose of his property fraudulently, with intent to avoid the payment of the debt sued for.

Before the Hon. D. G. Ligón, Chancellor. 1. The court had jurisdiction, the land being situate within the county of Randolph, where the bill was filed. See Clay’s Dig. 342, § 162. 2. If there was a want of jurisdiction it should have been presented to the court by plea, in the nature of a plea in abatement. See Bank of Norfolk v. Holman et als. 12 Ala. 360; Freeman v. McBroom etal. 11 lb. 943. 3.

<p>Writ of Error to the Circuit Court of Autaügá. Before the Hon. J. D. Phelan.</p> <p>Appeal from the judgment of a justice of the peace.</p> <p>cited Wiggins v. Perryman, 4 S. & P. 94; Betts v. Nicholson, 1 Stewart, 349; Hancocks v. Holmes, 3 Ala. 9; Clay’s Dig. 315, <§> 17, 18.</p>

Writ of Error to the Circuit Court of Lowndes. Before the Hon. N. Cook. The plaintiff in error being proceeded against as a defaulting overseer of a road, offered to prove, that at the time he was appointed overseer of the road, by the commissioners’ court, he was, and has been ever since, a resident of the State of South Carolina. On the objection of the solicitor, the court excluded this testimony, and the defendant excepted. This is now assigned as error.

Before the Hon. Geo. Goldthwaite. Action of assumpsit. The facts appear in the opinion of the court. 1. The question, whether a promise is original or collateral, depends not so much on the particular words of the promise, as on the circumstances of each case, and the general features of the transaction. Chit, on Con. 508, last ed.; Pit-man on Pr. and S, 40; Law Lib. 35, and note 9; Bell v. Bruen, 1 How. U. S. 169. 2.

Before the Hon. G. W. Stone. Assumpsit on a promissory note by the defendant in error as indorsee, against the defendant as maker. Upon the trial, the plaintiff offered the deposition of Geo.

Before the Hon. W. W. Mason. 1. Mandamus is the proper remedy. P. and M. Bank v. Willis & Co. 5 Ala. 770; same v. Walker et al. 7 lb. 926. 2. The 36th rule of chancery practice is cumulative, and does not abrogate the law as it existed before. 3. The object of the rule is to prevent vexatious litigation.

Writ of Error to the Circuit Court of Montgomery. Before the Hon. G. Goldthwaite. Assumpsit by the plaintiff in error. The defendants in error, who were tenants of the plaintiff in error, held over for about two months after the expiration of the period when the term expired, and then offered to deliver the premises to an agent of the plaintiff, who declined to receive it, and informed them they would be looked to for the year’s rent.

Before the Hon. G. W. Stone. The defendant was indicted, for corruptly promising to give one Daniel Stewart, a justice of the peace, $25, to influence his decision in a certain controversy, or proceeding that might be brought before him, wherein said Miles Bare-field was to be plaintiff, and W. H. Owen was to be defendant.

Writ of Error to the Circuit Court of Barbour. Before the Hon. J. D. Phelan. The plaintiff in error was indicted, for living in adultery, with one Polly Williams. From the evidence it appeared, that the defendant had a wife at home. That at least one night in every week he visited the house of Polly Williams, which was a half mile from his own residence, and slept with her all night, and that this was continued for about seven months.

Before the Hon. E. Pickens. Assumpsit by the plaintiff in error, against the defendant in error, executor of Robert G. Gordon. Upon the trial of the cause, as shown by a bill of exceptions, it appeared, that Gordon, as an attorney at law, had brought a suit in the circuit court of the United States, at Mobile, and that pending the suit, and after it was dismissed, he had promised the plaintiff, who was clerk of the court, to pay him his costs.

<p>1. Where a court of law, requires a suitor before it, to elect whether he will proceed at law, or dismiss a suit he has instituted in equity, having the same, object, and the election is made to dismiss the suit at law, error will lie. Otherwise, if the election had been to dismiss the bill in chancery, as the order would have no effect in the court of chancery.</p>

Motion by the plaintiff in error, against the defendants in •error, sureties of Lunsford Stallings, sheriff of Cherokee, for failing to return an execution of the plaintiff, which is described. The defendants pleaded in abatement of the rule, that at the time the notice to them issued, the sheriff was dead. The plaintiff demurred to this plea, which was overruled by the court, and judgment rendered for the defendants. This is now assigned as error. 1.

Assumpsit by the plaintiff in error, as indorsee of two promissory notes, executed by the defendant in error, payable to J. A. Butler. The defendant pleaded non-assumpsit in the usual form, without affidavit.

Before the Hon. T. A. Walker. Tbespass to try title to a house and lot in Tuscaloosa, by the plaintiff in error. Held: the plaintiff could not recover — that the lots being the property of the State Bank, were not liable to taxation. This is now assigned as error. made the following points: 1.

Before the Hon. G, D. Shortridge. to show that the act of the legislature referred to in the record, was unconstitutional, referred to the following cases: Ward v. Morris, 4 Har. & McHen. 341; Campbell v. Morris, 8 lb. 554; Murray v. McCarty, 2 Munf. 298; Corfield v. Cargill, 4 Wash. C. C. Rep. 381.

Before the Hon. G. D. Shortridge. The bank sued out execution against John Chandler, which was levied on a slave named Reuben, as the property of Chandler, to whom the plaintiff in error interposed a claim under the statute, and gave bond to try the right.

Before the Hon, W. W. Mason, Chancellor. The bill was filed by the plaintiff in error, and alledges, that about the 26th September, 1837, one Evan Murphy sold to Thomas G. Dobbins a lot of land in the town of Moul-ton, with the improvements thereon, which is described, for the sum of $1500, by three several writings obligatory, for $500 each, executed by Dobbins to Murphy, all of which complainant believes to have been paid, except one, which fell due on the first of…

At the June term, 1845, of the orphans’ court, a settlement was made by the court, of the estate in the hands of the defendant in error, and the sum of $2,583 85, was decreed to the plaintiffs in error, as their share of the estate.

Errol to the Circuit Court of Russel. Before the Hon. Geo. Goldthwaite. Debt on the official bond of the defendant in error, as sheriff. The -breach assigned is, that the plaintiff placed in the defendant’s hands, as sheriff of Russell, a writ of attachment ob the 8th- January, 1842, against Thomas Preston, and Wil-liatn ’Nelms.

Writ of Error to the Circuit Court of Coosa. Before the Hon. J. D. Phelan. Debt by the plaintiff in error, on the official bond of John A. Chapman, coroner of Coosa county, against the defendant’s intestate, one of his sureties.

Before the Hon. N. Cook. The plaintiff in error having a judgment against Peter Melton, sued out garnishee process against the defendant in error, who appeared and answered, stating, he received in the winter of 1843 for collection, several promissory notes made by one Hezekiah Bussey, payable to Peter Melton, indorsed by Peter Melton to W. J. Sorrell, and by him to J. Y. Suther-lin ; that he received the notes as the property of Sutherlin, sued the maker and obtained…

Writ of Error to the Circuit Court of Mobile. Before the Hon. John Bragg. MotioN, by the plaintiff in error, against the defendant, as indorser of a bill of exchange for $6,000 drawn by Samuel M. Hill, on W. Bower & Co. in favor of Allen W. Coleman, and by him, and the defendant m error, indorsed to the plaintiff. The defendant pleaded, 1. non assumpsit. 2.

Before the Hon. G. W. Stone. The plaintiff in error sued out execution on a judgment against Athanasius Thomas and William Thomas, which was levied on a slave named Jenny, and her two children, to which, Mary Thomas, the defendant in error, interposed a claim under the statute.

Before the Hon. A. Crenshaw, Chancellor. Aaron Lee, the father of the complainant, on the 4th day of January, 1844, executed a deed, whereby he conveyed to the children of Noel Lee, two slaves, with this proviso: “Nevertheless, the said Noel Lee, is to have the use of said slaves as long as he lives.” The deed expresses, that it is to be considered as the portion of the estate of the grantor, that would have fallen to the said Noel Lee.

Before the Hon. G. W. Stone. Teespass vi et armis, by the plaintiff in error, for the taking, and carrying away, by the defendant, of one hundred bushels of corn. Upon the trial, as appears from the bill of exceptions, the plaintiff proved, that in the year 1846, he cultivated a tract of land in Talladega county, and made thereon a crop of corn,which he gathered in the fall, and deposited it, two-thirds in a crib, and one-third in a pen.

Before the Hon. T. A. Walker. . Assumpsit by the defendant in error, as indorsee, against the plaintiff in error, as maker of a promissory note. The plaintiff below obtained a judgment, which on error to this court was reversed, and the cause remanded. After its return to the court below, another writ is found in the transcript, the service of which purports to be acknowledged by the defendant, but the writ is without the signature of the clerk.

Before the Hon. J. D. Phelan. Assumpsit by James Semple, against the plaintiffs in error; The plaintiff below having afterwards departed this life, the suit was revived in the name of the defendant in error, his executor. The action was brought to recover the proceeds of a crop of cotton, shipped to the defendants, as factors in Mobile, and by them sold. Pleas, wore assumpsit, and set-off.

Before the Hon. T. A. Walker. Assumpsit by tbe defendant in error as indorsee, against the plaintiff in error ás indorser of a promissory note. For ' the facts of the case see the opinion of the court. In the case of Bates v. Ryland, 6 Ala. 668, 671, it is decided, that two conditions are imposed on the holder of a note, not payable in bank, before an indorser can be charged. 1. A suit to the first court after maturity, or indorsement, must be brought against the maker. 2.

Before the Hon. A. Crenshaw, Chancellor. The bill was filed by the plaintiff in error, and alledges, that at the request of Willis Lang, of the firm of Lang & McRae, he became the indorser of a note for the sum of $1,225 for the said firm. That before the maturity of the note, Willis Lang died, and at the instance of Cátharine Lang, he indorsed, for the renewal of the said note in bank.

CL W. Stone. The suit was commen ced before a justice of the peace, by the defendants in error, against the plaintiff in error, as endorser of a sealed note, made by one Jesse Moody. They obtained judgment before the justice, and he appealed to the circuit court. In that court the plaintiffs filed a declaration, in which they alledged, “ that they held a sealed note, in words and figures, substantially as follows.

the County Court of Mobile. The defendant in error commenced a suit by libel against the steamboat Norfolk.

Before the Hon. A. Crenshaw, Chancellor. Bill filed by the plaintiff in error, to enjoin a judgment, which had been obtained against him by the defendants in error, in an action of ejectment, and to redeem the land from a mortgage, which existed upon it. The facts are fully set forth in the opinion of the court. The chancellor, at the hearing, decreed a redemption, on the payment of the sum of $1,400, and the balance due on the mortgage, and costs.

Writ of Error to the Circuit Court of Marengo. Before the Hon. G. Goldthwaite. The defendants having instituted suit against Hugh Mc-Phail by attachment, which was levied on certain property, the property was regularly claimed by the plaintiff in error, and bond, &c. given to try the right.

Before the Hon. G. W. Stone. Assumpsit by the defendants in error, on a promissory note which was given by the plaintiff in error, for an advance on cotton stored in plaintiff’s warehouse, which was destroyed by fire.

On the 9th December, 1835, Morgan Brazeal was appointed administrator of George Brazeal, sen’r, and entered into the customary bond, with the plaintiffs in error as his sureties.

Before the Hon. A. Crenshaw, Chancellor. The bill was filed by the plaintiff in error, and alledges, that he was the indorser of Thomas R. Bolling, on three promissory notes of $ 1,250, executed by him to one Diego McToy. That judgment was obtained by McVoy on two of the notes, and execution thereon being returned not satisfied as to Bolling, he was compelled to pay them, and the last note he has paid without suit.

Assumpsit by the plaintiff, against the defendant in error, on six promissory notes, purporting to be executed by Jane Sinclair, the defendant in error, and John A. Spear. Plea, non est factum. The plaintiff offered the .deposition of John A. Spear, who was not sued in the action, to prove, that he signed the name of defendant to the notes, at her request, and in her presence, and his own name as surety. The deposition had been regularly taken upon cross examination.

Before the Hon. N. Cook. Debt, by the plaintiffs in error, on a prison bounds bond, executed by the defendants in error, and one Thomas J. Frow. Breach assigned, the escape of defendant Parkman. The defendants pleaded twelve pleas.

Before the Hon. A. Crenshaw, Chancellor. Held: and by whom it was enjoyed. The authorities go rather upon the sufficiency of the evidence than upon its competency. The receipt of dividends — the use of the property purchased by a father in the name of the child, is still consistent with the notion of an advancement, especially in the case of an infant.

<p>1. Proof by a subscribing witness to a deed, “that the donor signed, sealed, and delivered the same, in his presence, or acknowledged he had done so at the time witness signed it, he could not tell which,” is sufficient to admit the deed in evidence to the jury.</p> <p>2. Declarations of a donor at the time of the delivery of slaves, that they were delivered to the trustee pursuant to the provisions of a deed,- are admissible as part of the res gestae.</p> <p>3. A deed by a father, conveying slaves to a trustee for the benefit of his daughter, is not required by the statute of frauds to be recorded, as against the creditors of the husband.</p> <p>4. A conveyance of slaves to a trustee, in trust, that he would permit the daughter of the grantor, a married woman, “ to have the use and benefit of the labor, and services of the said slaves, and all the proceeds thereof, during her life, and at her death, shall convey the said negroes to the lawful heirs of her body,” does not give her a separate estate in the slaves.</p>

Trespass on the case, by the plaintiff, against the defendant in error, for carelessness, and negligence, in the treatment .of a negro girl, hired by the former, to the latter. Upon the ’trial of the cause, as shown by a bill of exceptions, it appeared in evidence, .that the negro girl was sick, and died in a few 'days.

Before the Hon. G. Goldthwaite. Trial of right of property, in which the plaintiff in error was the plaintiff in execution. From a bill of exceptions it appears, that the plaintiff levied on a slave by the name of Jesse, by virtue of an execution against Columbus W. Mitchell, and proved that the slave was in his possession at the time of the levy, and that he and the claimant, John Mitchell, were brothers.

Writ of Error to the Circuit Court of Dallas. Before the Hon. N. Cook. Teespass to try title by the defendant in error. It appears from the bill of exceptions, that the defendant in error who was the plaintiff in the court below, in order to establish his tiile to the premises sued for, offered, and read in evidence to the jury, a deed executed by John M. Terry to him for the land in controversy, dated 24th January, 1844, which deed was duly acknowledged and recorded.

Before the Hon. S. Chapman. Debt by the defendant in error, executor of Nathaniel H. Hooe, against the plaintiff in error. The plaintiff in his declaration makes profert of his letters testamentary, obtained in the State of Mississippi, and duly recorded according to the statute. The defendant pleaded — 1. That the plaintiff was not the executor of Nathan H. Hooe, in manner and form as.in his said declaration alledged. 2.