Volume 15 — Alabama Reports

Before' the Hon. G. D. Shortridge. Trespass to try title to a tract of land, by the plaintiff against the defendant in error. From a bill of exceptions it appears, that the plaintiff was a purchaser of the land in controversy, at sheriff’s sale, under execution against James Leith, one of the defendants in error, which was conveyed to him by the sheriff.

Before the Hon. Adam C. Felder. ■ The facts appear in the opinion of. the court. 1. It is admitted, that by our decisions, the annual-returns of an administrator may be corrected on a final settlement of the estate, and such a decree be rendered, as will be proper upon a view of all the facts. Willis’s adm’r v. Willis’s heirs, 9 Ala. 335.; Brazeal’s adm’r v. Brazeal’s dis. ib. 496; Cunningham v. Pool, etal. ib. 620; Smith’s heirs v. Smith’s adm’r, 13 ib. 329.

Before the Hon. G. D. Shortridge. In this case, a motion was made to the court for an order to the sheriff, as to the application of a sum of money in his hands, raised from a sale of the real estate of one Fredrick Elgin, against whom the plaintiff and defendants had severally obtained judgments and executions.

Before the Hon. T. A. Walker. The facts will appear in the opinion. The only question is one of payment. Did Briggs receive in payment of the carriage, the order set out in the bill of exceptions? Briggs himself so declares in his receipt to plaintiff in error,, and the proof shows such to be the case, independent in the order. If received in payment, there is an end of the question; the judgment must be reversed.

Before the Hon, J. D, Phelan. This was an action of trover, to recover the value of a negro girl, brought by the defendants in error against the plaintiff.

Before the Hon. A. Crenshaw, Chancellor. The bill which was filed by the plaintiff in error, alledges, that in the year 1836, the firm of Ross & Ford was indebted to John Bloodgood, in the sum of $25,000, for money which he had been compelled to pay for them as acceptor on certain bills of exchange.

Before the Hon. E. Pickens. This was a proceeding on a forfeited recognizance, at the instance of the State against the plaintiffs in error, as the securities of one Gardner Hardy.

Before the Hon. A. Crenshaw, Chancellor. The defendant in error filed his bill against the plaintiff, alledging that on the 12th day of February, 1840, he was indebted to the bank, either as principal or surety, in the sum of §29,966 09. That on that day he extended the debt, giving security, and executing six notes, payable on the 1st of February of each year, one due at one year, and one falling due each successive year.

Before the Hon. S. Chapman. Assumpsit, by the plaintiff in error, as indorsee of a bill of exchange, drawn by the defendant in error, (and one Wight-man,) indorsed to the plaintiff by Reese & Heylin, and accepted by Charles Byram. In the declaration, the bill is described as their second of exchange, (first of the same tenor and date unpaid;) and that the bill was directed to Charles Byram, Esq. at Mobile, and by him accepted.

<p>Error to the County Court of Lowndes. Before Hon. E. H. Cooke, County Judge.</p> <p>In this case, the facts appear fully in the opinion of the court.</p>

C. D. Shortridge. This was an action of assumpsit instituted by defendant against plaintiff in error, to recover the amount of six promissory notes, which had been given for the purchase money of a tract of land. The case went to the jury on the plea of the general issue, with leave to give in evidence any special matter in bar.

Before the Hon. John Bragg. This was an action of debt, instituted by the plaintiff against the defendant in error, as the surety of one Marsten, on a bond executed to the Governor of Alabama, for the faithful discharge of his duties as a notary public.

Before the Hon. E. Pickens. 1. The circuit court had jurisdiction — although its judgment was merged in that of the supreme court, as is decided in Wiswall v. Munroe, 4 Ala. 19. Yet it did not lose all power to correct its own entries. This was an affirmance on certificate, and consequently this court has no record to amend by; and from the necessity of the case, the circuit court in which the record remains, must make the amendment.

<p>1. A sheriff, or his sureties, proceeded against under the act of 1826, may insist on the fact of the receipt of the money being found by a jury; but if they appear, and make no objection, they will be considered as having waived it.</p> <p>2. When the judgment entry recites, that proof was made, that the party proceeded against, was surety of the sheriff when the money was collected, and received by him, this court will intend, that it was proved by the production [of the sheriff’s bond, on which he was surety, and that that relation continued to exist, so as to embrace the period of default.</p> <p>3. The plaintiff is not confined to the proof of the demand, at the time stated in the notice. Proof of demand at any time after the receipt of the money by the sheriff, and before the motion, will be sufficient.</p>

Before the Hon. A. S. Saffold, Judge. This case arose out of a petition filed by Warren B. Andrews, administrator on the estate of Richard Hall, deceased, setting forth that he had in his hands, as the property of said estate, a number of slaves which were not needed for the payment of debts, and praying a division of them among the distributees. A guardian ad litem was appointed for William A. Hall, an infant distributee.

The cause was tried before the Hon. Chancellor Lesesne. The facts will appear in the opinion. made the following points: I. The bill should have been dismissed as to Richard Hunley ; his answer showing he had no interest, and he being improperly joined. Toulmin v. Hamilton, 7 Ala. 362; Cherry et al. v. Belcher, 5 S. Sf P. 133. II. 1.

Before the Hon. D. Coleman. This was a motion by defendants in error against Matthias E. Garey, sheriff of Sumter, and his securities, for the failure of said sheriff to return an execution in favor of said defendants, against James E. and Richard S. Jones. The record contains two notices — the first dated the 2d February, the second the 31st of March, 1842, both returnable to the spring term, 1842, of the circuit court of Franklin.

Before the Hon. George W. Stone. This was an action on a promissory note made by James ■ Young, Reuben G. Young and William Winslett, in favor of the plaintiffs in error. James and Reuben G. Young did not defend, but suffered a judgment to go against them by default.

Before the Hon. S. Chapman. This was an action of detinue, brought by the plaintiff, as •executor of Henry Trippe, deceased, against the defendant as .administrator of Mary A. Trippe, deceased, to recover the possession of four slaves.

Before the Hon. J. D. Phelan. This was a motion to the court for an application of a sum of money in the sheriff’s hands, raised by the sale of a slave, as the property of John P. Booth, against whom the plaintiff, and each of the defendants in error, had obtained judgments and executions. By the reeord it appears that the facts were agreed on, and are as follows: 1.

Before the Hon. George W. Stone. This case arose out of the action of the Commissioners’ Court of Roads and Revenue on an application for a new road.

Errror to the County Court of Jackson. Before the Hon. James M. Green, Judge. This was an action of covenant, &c. instituted by Samuel Hughes, in his lifetime, and after his death revived in the name of his administrator, against Samuel Mead, on an instrument of which the following is a copy: “$270.

Before the Hon. A. Crenshaw, Chancellor. The bill which was filed by the plaintiff in error, alledges, that Cowe Hadjo, an Indian of the Creek tribe, was entitled as a reservee to the west half of section thirty-four, township seventeen, range twenty-one, east, in the Tallapoosa land district, and that he sold said land to James C. Watson & Co.; that on the 30th of July, 1839, James C. Watson Co., for a valuable consideration, assigned, and relinquished the land, to one…

G. D. Shortridge. This was an action of detinue, instituted by Stephen Carter, and subsequently revived in the name of defendant in error, his assignee in bankruptcy, against the plaintiff in error, to recover the possession of two slaves, with damages for their detention.

, Before the Hon. G. Goldthwaite.. Assumpsit by the defendant in error. The defendant in error leased a store house,, to Philip Farris, who occupied it as such. The plaintiff in error, as sheriff, levied an execution on the goods, and sold them, the tenant. being indebted to the defendant in error for a year’s rent. The sheriff had notice of the claim for the rent in arrears, and has retained this amount in his hands. To recover this, assumpsit is brought by the defendant.

Before the Hon. J. D. Phelan^ This was a trial of the right of property in certain slaves, and horses, levied on under an execution in favor of defendants, and claimed by plaintiffs in error, as the trustees of Mrs. Sarah Ann Pollard, wife of Wm. H. Pollard, the defendant in execution.

Before the Hon. Sydenham Moore, Judge. This case arose upon a final settlement in the orphans’ court of Greene county, of the estate of William May, deceased.

Before the Hon. J. D. Phelan. The facts in this case are fully stated in the opinion of the court. 1. When this case was before in this court, it was held that a demand against a garnishee could be subjected to process of attachment only where a debt actually existed — that it must be such a demand as would enable the creditor himself to maintain either debt or indebitatus assumpsit. 11 Ala. Rep. 276. 2.

Before the lion. G. Goldthwaite. Ejectment by the defendant in error, for a tract of land.

Before the Hon. Geo. Goldthwaite. This was an actiou of trover by plaintiff, against defendant in error, to recover damages for the conversion of a slave. The facts are set out in a bill of exceptions found in the record. The slave in controversy was once the property of William Drummond, deceased, upon whose estate defendant is administrator, and was left with his wife in Florida, by-said Drummond, upon his removal to this state.

Before the Hon. James A. Young, Judge. This was a proceeding by defendants against plaintiff in error, to compel a settlement of his administration of the estate of Nicholas W. Thompson. The plaintiff, as sheriff of Marengo, was, in 1836, appointed kdministrator of said estate, and received as assets of the estate, notes on various persons to an amount exceeding ¡$700.

Before the Hon. G. Goldthwaite. The plaintiff in error declared in debt against the defendants, as the securities of the sheriff of Coosa, for failing to make the money on an execution issued against Hobdy in his favor. The execution was issued on the 6th day of October, 1841, and on the 15th November was levied on the lands of the defendant.

Before the Hon. George W. Stone. Motion by the plaintiff in error, to set aside a sale of land made under execution. The plaintiff filed his petition for a rule on the parties in intest, setting forth his title to certain lands, which had been sold as the property of one Williamson Freeman, in virtue of an execution issued on a judgment in favor of James H. Shorter, who was dead at the time the execution issued.

Before the Hon. Geo. Goldthwaite. This was a proceeding by notice and motion by defendant, against plaintiff in error and.one Findley, to recover the amount of a promissory note for $500, purporting to have made by them. Bussey and Findley severed in their pleas— the former pleading, the general issue, and the latter, non est Jactum. The jury found against Bussey, and in favor of Findley, and the judgment of the court was in conformity with the verdict.

1. This claim could not have been filed by these parties within six months after the declaration of insolvency; because it did not accrue to them until they had paid it, and if it was filed within six months after its accrual to them, it is clearly within the spirit and equity of the statute to allow it. The contract of a principal to a note, or other obligation, is of a twofold character.

Before the Hon. Geo. W. Stone. Trespass to try title to land, by the plaintiff, against the defendant in error. Held: that an execution issued in continuation of a lien acquired during the life time of a defendant, to carry out that lien as to personal property, is not irregular.

Before the Hon. J. W. Lesesne, Chancellor. Held: that the defendants have to prove their answers, still they are a part of the evidence, that the court must look to, in deciding on the correctness of the decree of the chancellor ; and when it appears that the bill is not sworn to, and the answers are, and the other testimony in the cause sustains the answer, then the weight of…

Before the Hon. N. Cook. The plaintiff brought debt, against the defendants, on a prison bounds bond, executed by Parkman as principal, and Weaver as security, and assigned as a breach, that Parkman escaped from the limits as established by law. The defendants filed a number of pleas to the second, third, fourth, sevehth, eighth, ninth and fourteenth pleas, the plaintiff demurred, and the demurrer was overruled.

Before the Hon. S. Chapman. Indictment against plaintiff in error for larceny of a slave, in Fayette circuit court, and transferred by change of venue to the circuit court of Marion.

Before the Hon. W. W. Mason, Chancellor. The bill in this case was filed on the 5th April, 1844, by the plaintiffs in error, as the administrators de bonis bon, with the will annexed, of Jeremiah Smith, deceased, against the defendants in error, the first of whom, Smith, was executor of said will, and the other a security on his bond.

Before theHoh. J. W. Lesesne, Chancellor. See the facts fully recited in the opinion of the court. 1. The offer to rescind is too late, the presumptions are against the vendee. Steele v. Kinkle, 3 Ala. 352; Newell v.. Turner, 9 Porter, 420; Saddler v. Robison, 2 Stew. 520. 2. John Bradford had a resulting trust in the tract of land, entered in the name of James Bradford; consequently it is not affected by the judgments, against James Bradford, as charged by complainant.

Before the Hon. James A. Young, Judge. Action of assumpsit, on the common counts, by plaintiffs, against the defendant in error. Plea, the general issue.

Before the Hon. Samuel A. Gilkey, Judge, Thjs was an action on a promissory note, by defendant, against plaintiffs in. error. Pleas — 1. Non-assumpsit. 2. Fraud. 3. The statute of frauds. 4. Want of consideration. 5. That note was given for land, and that defendant in error promised at the time it was given, to execute a bond for titles, which he has failed to do.

Before the Hon. Thomas A. Walker. The facts of this case, which was a trial of a right of property, may be thus stated: The defendant in error, commenced suit against Charles M. Lewen, and Mary Lewen, executors of Charles Lewen, deceased, and whilst the suit was pending, an ancillary attachment was sued out, and served on the slaves in controversy, and also on other property. The slaves were claimed by the plaintiff in error, as trustee of Elvira Thomas.

Before the Hon. S. Chapman. This was an action of assumpsit, instituted by defendant in error, as the agent of one John Kirby, against the plaintiff in error, in a justice’s court, and taken by appeal to the circuit court. The statement, or declaration, was on the common counts. Plea, non-assumpsit.

Before the Hon. W. W. Mason, Chancellor. This was a bill filed by the plaintiffs in error, the brothers and sisters of Harvey W. Ellis, deceased, against the defendants, to enforce the trust which they alle^ge was created in their favor by the following clause of the last will and testament of said Harvey W. Ellis: “I hereby will and bequeath unto my beloved wife, Catharine M. Ellis, my whole estate, real and personal, after the payment of my just debts, recommending to her,…

Before the Hon. Geo. D. Shortridge. The defendant in error brought debt on a judgment rendered in his favor, against the plaintiff in Mississippi. The plaintiff in error objected to the certificate of the judge, as insufficient to authenticate the record, under the act of Congress, but his objection was overruled.

Before the Hon. Thomas A. Walker. This was an action of trespass vi et armis, instituted by the defendant against the plaintiffs in error.

Before the Hon. John D. Phelan. This was an action brought by the defendant against the plaintiff in error, as administrator of Charles Sibley, deceased, on a note made by said Sibley, in his lifetime. The said administrator plead as a set off, a judgment of the circuit court of Dallas, in favor of his intestate, against one Brooks, and the said Howie.

Before the Hon. W. W. Mason. The defendant in error filed her bill in equity, by her next friend, alledging, that in 1844, she was married to Charles H. Goldsborough, her present husband.

Before the Hon. S. C. Posey. This was an action of assumpsit on a promissory note instituted by defendant against the plaintiff. Issues were formed on the pleas of non-assumpsit, want of consideration, failure of consideration, fraud, and set off. The defendant introduced the following instrument in evidence : “The State of Alabama, Benton county — Received of Daniel Bush, twenty-two hundred dollars, for the following described blooded stock, viz: No. 1.

. Error to the Circuit Court of Pickens. Before the Hon. S. Chapman. This was an action of assumpsit brought by defendant against plaintiff in error.

Before the Hon. C. C. Clay, jr., Judge. This was a proceeding in the orphans’ court of Madison, for the final settlement of the estate of R. C. Rathbone. Held: that the administrator was not chargeable with this sum of $1,286, and to reverse this decree, this writ of error is brought. . It appears from the will, that Rathbone left four children. And it appears from the bill of exceptions, that one of these had died prior to the settlement.

Before the Hon. Robert H. Wilson, Judge. This cause commenced by the filing of a petition in the court below, in the names of the distributees of William Fagan, jr., deceased, praying that the plaintiff in error, who was administrator of the estate, be compelled to make final settlement of his administration, &c. At the trial, the widow of the deceased, one of the distributees, moved to dismiss the petition, on the ground that she had not signed it, or authorized any person…

Before the Hon. John D. Phelan. This was a motion made by the plaintiff, as administrator, &c., of James Abercrombie, deceased, against the defendant, as sheriff of Perry county, for failing to make the money, Sfc. on an execution that came to his hands in favor of the said Abercrombie, against one Billingsley.

Before the Hon. James A. Young, Judge. An execution issued on the 27th day of May, 1846, in favor of Sarah Thompson, the plaintiff in error, from the orphans’ court of Marengo, against James M. Bondurant, late sheriff of said county, and by virtue of his office, administrator de bonis non of Nicholas Thompson, deceased, on a decree rendered against him, in favor of the plaintiff in error, as one of the distributees, for $272; which decree was rendered on the second day of…

Errror to the County Court of Marengo. Before the Hon, James A. Young, Judge. This was a motion by defendant against plaintiff in error to quash an execution, and set aside a levy and sale made under it. A judgment was rendered in the county court of Marengo, in favor of Walke & Clarke, use of Vm.

Before the Hon. S. Chapman. Action of assumpsit, for money had and received, by plaintiff, against defendant in error. By the bill of exceptions, it appears, that Wood had sold to White a tract of land, at the price of $700, of which the latter paid $150 in cash.

Before the Hon, George Goldthwaite. This was an action of detinue, by defendant against plaintiff in error, to recover a negro man by the name of Charles. At the trial, a bill of exceptions was sealed, by which the following facts are disclosed.

Before the Hon. D. G. Ligón. The bill in this case was filed by plaintiff in error, who claimed by deed from Nelson A. Crawford, one of the patentees, against Benjamin Baldwin, the other patentee, and some twenty sub-purchasers under him, for a partition of the land in controversy, which had been sold by the Indian reservee, to said Nelson A. Crawford and one Robert G. Hayden, the latter of whom assigned his interest to Baldwin, before the issuance of the patent.

Before the Hon. Thomas A. Walker. Detinue for five slaves, instituted by plaintiff, as executor of William Machen, deceased, against the defendant in error, who was the widow of the testator/ The plaintiff proved the possession of the slaves by his testator for several years before and at the time of his death.

Before Hon. J. A. Young, Judge. This was an action of assumpsit, instituted by plaintiff against the defendant in error, on a note given by him to plaintiff, in part payment for a circular saw. The note was for $100, and was given with the understanding, that if the defendant was legally bound, and forced to pay for a patent right to use said saw, he should have the benefit of such payment against the plaintiff, but the payment was not to be voluntary.

Before the Hon. S. Chapman. This was an indictment’against the plaintiff in error, for card playing. By a bill of exceptions taken in the case, it appears, that the State proved by a witness, that the defendant played at a game of cards, with others, in an unoccupied house in the fown of Yienna, in said county, at least once, in the presence of the witness, and that persons did resort to said house, for the purpose of play.

Before the Hon. James A. Young, Judge. This was an action of assumpsit, by defendants, against the plaintiff in error, as the irregular indorser of a note, made by one Taylor, on the 1st February, 1842, for $50, in favor of Edward J. Rew, payable on the 1st day of March next after date. The common counts were added to the declaration, which contains four special counts on the indorsement.

Before the Hon. T. A. Walker. This was an action of detinue, brought by the plaintiff’s intestate, and renewed after his death, in the name of the plaintiff in error.

Before the Hon. S. Chapman. The defendant instituted an action in Pickens circuit court, against the plaintiff in error, on a bill single for $1,000, dated 14th October, 1841, and payable the 1st March, 1846. Pleas — 1. Want of consideration. 2. Failure of consideration. 3. Fraud.

Before the Hon. David G. L'igon, Chancellor. The bill in this case was filed by plaintiff, as administrator, &c., of one Robert S. Carson, against the defendants in error, to set aside a deed of gift, absolute on its face, for certain slaves, executed by said Carson, in his life-time, to said defendants, and for the delivery of said slaves to him to be administered, &c. The facts, on which the relief is sought, the answers of defendants, and the testimony read on the…

Before the Hon. George W. Stone. This was an act of trespass, to try titles to a tract of land. The facts were agreed upon, and are as follows: The Bank of the State of Alabama, recovered a judgment for f400, in the county court of Tuscaloosa county, at its February term, 1839, against William Wilson and Fleming J. Thompson, on which execution issued, and was levied by the sheriff of Fayette county, on the 4th July, 1839, upon the land in controversy.

Before the Hon. T. A. Walker. This was an indictment against plaintiff in error, under the statute, for malicious mischief, &c. The court, in opposition to the objection of the plaintiff, allowed the party whose property was injured, to be examined as a witness for the State, and considering it a novel question, certified as such to this court. The prisoner was illegally convicted, on the testimony of Brown, who was the owner of the property, alledged to have been injured.

Before the Hon. Geo. W. Stone. This was an action of trespass to try titles, instituted by plaintiffs, against defendant in error. The bill of exceptions discloses the following facts: In 1840, Hurst, Cox & Co. recovered a judgment against one McCollum, in the county court of Randolph, on which execution issued, and was returned no property.

Before the Hon. William H. Campbell. This was a motion by defendants in error, to set aside a sale of land.

Before the Hon. G. W. Stone. This was a proceeding on a forfeited recognizance, at the instance of the State, against plaintiffs in error.

Before the Hon. A. Crenshaw, Chancellor. This bill was filed by Josephine Barclay against the plaintiffs in error, for dower in the real estate of which Henry A. Barclay, her late husband, was seized, during the coverture, or at the time of his death.

Before the Hon. N. Cook. This was an action of debt, brought by defendant, against plaintiff in error, on an award, with the common counts. The defendant below demurred to the first and second counts of thfe declaration, for want of profert of the award, but the court overruled the demurrer. He then pleaded as follows: The defendant, in short by consent, pleads — 1. The general issue. 2. The statute of limitations of six years, to each count. 3.

Before the Hon. Geo. Goldthwaite. , This was an action oí assumpsit, op. a promissory note, made by John L. Flowers, in his life time, for $4,000, dated in 1843, and due in April, 1844, instituted by defendant in error, originally, against Erick Hueston, as the administrator of said Flowers, and afterwards, on the resignation of Hues-ton, revived against plaintiff in error, as the administrator de bonis non.

Before the Hon. A. Crenshaw, Chancellor. This was a bill filed by the defendants in error, against the plaintiffs in error. The facts, &c. are so fully set out in the opinion of the court, that it is unnecessary to state them here. The chancellor decreed in favor of defendants in error. 1. The bill is multifarious. Two mortgages are joined in one bill.

Before Hon. J. A. Young, Judge. On the 23d day of October, 1845, Susan Browning, and William G. Browning, propounded to the orphans’ court of Marengo, a paper for probate, purporting to be the last will and testament of Nelson Browning, deceased. Citation was ordered to issue to Joseph L. Browning, and to- Wayne E. Lee, guardian of Deartha Lee, Yerilta Lee, and Greene. W. Lee, who were the next of kin, to show cause why said will should not be admitted to probate.

Before the Hon. Wm. M. Galloway, Judge. This case originated in an application of the plaintiff in error to make final settlement of the estate of Thomas H. Seward, of which he was administrator.

J. W. Lessesne, in vacation, sitting for the Third District, Southern Chancery Division, dissolving an injunction. Held: from Henderson, on the 1st of October, 1840, to collect, and when collected, he was to apply the proceeds to the payment pari passu of certain debts of Henderson, several of which Nelson himself had taken up.

Before the Hon. A. J. Saffold, Judge. The facts of this case are sufficiently set out in the opinion of the court.

Before the Hon. David G. Ligón, Chancellor. The bill in this case was filed by plaintiff in error, against the defendants, Gideon Arthur and the heirs of John J. Williams, and alledges, that prior to the year 1833, said Arthur, a white man, residing in the Greek Indian territory, now included in the county of Chambers, by intermarriage with a woman of the Greek nation, became identified as a member of said Indian tribe, and as such,, under the treaty of 1832, Was located on…

Before the Hon. George Goldthwaite. This wás an indictment against the plaintiff in error, for the murder of William Hadden, a white man. On the trial the jury returned the following verdict: “ We, the jury, find the defendant Stephen, a slave, guilty of voluntary manslaughter.” The counsel of the accused moved in arrest of judgment, on account of the defect in the verdict; but the court overruled the motion, and pronounced sentence of death on the accused.

Before the Hon. S. Chapman. Action on the case, by Melton against Troutman, for wrongfully, vexatiously and maliciously suing out an attachment, returnable to Shelby circuit court. The attachment was sued out for the sum of $2,300, but the verdict and judgment were for $1,201 only ; the claim having been reduced by proof that usury entered into the consideration of the note, on which the attachment was founded.

Before the Hon. Samuel Chapman. This was a trial of the right of property in a quantity of seed cotton, levied on under an execution in favor of the defendants in error, against one Alanson Brownlee, and to which a claim was interposed by the plaintiff in error.

Before the Hon. G. . W. Lane. Action of debt, by defendant in error, against Ferdinand L. Hammond, administrator on the estate of George A. Lowe, the plaintiff in error, on two bills single, executed by one Key and the said Lowe in his life time ; one dated the 10th, and the other the 11th December, 1830, and payable one day after date. The writ issued on the 5th August, 1846.

Before the Hon. Geo. W. Stone. Tuts was an action of trover’, instituted by plaintiffs, against the defendants in error, to recover damages for the conversion of a wagon, four mules and a horse.

This was a proceeding under the bastardy act, instituted at the instance of one Lucy Farr, who made affidavit, that the plaintiff in error was the father of a bastard child, with which she was then enciente. The cause was submitted to a jury, on the plea of thejjgeneral issue, and a verdict of guilty rendered. The judgment entered thereon is set out fully in the opinion of the court, and is the error now assigned by the plaintiff.

Before the Hon. Sidney C. Posey. This was an action of detinue, instituted by defendant, against the plaintiff in error, to recover possession- of a female slave.

Before the Hon. David G. Ligón, Chancellor. The bill in this case was filed by defendant against plaintiffs in error, to enforce the provision made for his benefit in a deed of trust executed by one Cathey, deceased, to Graham, as trustee, who also is administrator on said Cathey’s estate. The facts appear in the opinion of the court. The chancellor decreed in favor of complainant, which is now assigned as error.

Before the Hon. John D. Phelan. This case originated in a notice by defendant, to plaintiffs in error, to show cause why they should not be required to pay the costs, that had accrued in a claim case, wherein one James Scott was plaintiff in execution, Robert H. Porter and David Harding, defendants, and defendant in error, claimant.

Tried before the Hon. W. W. Mason, Chancellor; The facts of this case appear in the opinion of the court- made, the following points: 1. The object of the second section of the statute- of frauds, requiring voluntary conveyances to- be proved, in- open court, and recorded-, when possession, did not accompany'the deed, was; manifestly notice merely... The mode of proving the deed prior to its registration, was a secondary consideration.

Before the Hon. Preston G. Nash. It appears by a bill of exceptions in this case, that the plaintiffs in error sued out a supersedeas against the defendant, in which they allege, that on the 27th day of April, 1840, Eleanor Knox and Hiram Steele were appointed administratrix and administrator on the estate of John C. Knox, dec’d, and gave bond with said plaintiffs as their securities, conditioned as the law requires : that the said Eleanor and Hiram thereupon undertook the…

<p>1. Where a defendant in an action of trespass to try titles, in which a judgment has been rendered against him for the recovery of the land, and damages for its occupancy, sues out a writ of error, and dies, the suit must be revived in the names of the heirs and personal representatives of the deceased.</p>

Before the Hon. W. W. Mason, Chancellor. The bill in this case was filed by defendants in error, against plaintiffs in error, to enforce a trust, which it alleges was created in their favor, by a deed of their grandmother, Margaret Millwee.

Before the Hon. Sidney C. Posey. This was an action of trespass, to try title to several tracts of land in Jackson county, and to recover damages for the occupancy thereof, instituted by defendant… Held: that an execution can not issue, in such case, against the land of the survivor, until the judgment be revived, and that an execution issuing without this is void. 1 Cowen’s Rep. 711, 738; 4 Howard’sU. S. Rep. 88: and see Stewart v. Nuckíes, decided at this term.

Before the Hon. D. G. Ligón, Chancellor. The bill in this case was filed by plaintiffs, against defendant in error, and alleges, that complainants, Carter T. Hamilton, and William C. Hamilton, deceased, the father of the other complainants, on the 24th December, 1844, purchased from William P. Chilton, the south half of section of land nineteen, township twenty-one, and range four, east, in the county of Talladega, and received from him a bond for titles, but which, by…

Before the Hon. Sidney C. Posey. This was an action of trespass for a malicious arrest, and false imprisonment, instituted,by plaintiff against defendants in error.

Clair. Before the Hon. Thomas A. Walker. Debt, brought against the defendant, as sheriff, for .taking illegal fees. The facts, so far as they are material to be stated, are, that on the 4th December, 1843, an attachment was issued against the plaintiff, and was levied by the defendant, on eight slaves. The defendant took these slaves into his possession, and retained them for twelve months, during which time, he fed and clothed them, and paid taxes for them.

Before the Hon. George W. Stone. This was a trial of the right of property in certain slaves, levied on under a 'fieri facias, in favor of the defendant in error, against one Peter C. Harris, as the property of said Harris, and claimed by the plaintiff in error. The bill of exceptions found in the record, discloses the. following facts.

<p>Error to the 22d Chancery District, before the Hon. W. W. Mason, Chancellor.</p>

Before the Hon. B. W. Wilson, Judge. This was an action by defendant in error, for the use of Alfred Battle, guardian of the orphans of Elias Fort, deceased, against the plaintiffs in error, on a bill single.

Before the Hon. Nathan Cook. This was an action of ejectment, instituted by plaintiff against defendant in error. On the trial, the plaintiff gave in evidence a judgment, rendered on the 3d October, 1837, in favor of Nickles,'Poor & Hall, for $810, against Peter Dudley and one Brinson •: an executionpssued thereon: proved a sale of the Iánd-'-ih'.cpntroversy, by the sheriff, under it, and the sheriff’s-deed, dated 7th Sept., 1840.

Before the Hon. John Bragg. This was an 'action of detjnue, for the recovery of a slave, and was instituted by plaintiff in error, against one William Hunley, who died pending the action, and of whose estate defendant in error is administratrix.

Before the Hon. D. G. Ligón, Chancellor. The bill in this case, filed by the plaintiffs in error, alleges that on the 23d September, 1844, they executed a note to Joseph N. Savery, one of the defendants, for $160, payable on the 4th day of March, 1845, provided James K. Polk, of Tennessee, should be elected to the presidency of the United States previous to that date, &c: that Finn was the principal, and Dulaney his security, in said note, and that at the time said note was…

Before the Hon. Adam C. Felder, Judge. This was an issue, made up in the orphans’ court, on a demand presented and sworn to, as the statute requires, by plaintiff against the estate of Simeon Fuller, of which defendant was administrator, and which had been declared insolvent.

Anderson Crenshaw, Chancellor. In this case, the bill was filed by defendant against plaintiff in error, and alleges, that on thel8th day of May, 1836, he purchased of Susanna McNeill, then of Sumter… Held: and, further, if he was, that the mere setting up of a claim by him would have enabled him legally to withhold payment: as it would not. 6.

Before the Hon. George W. Stone. This was an action of debt, for cutting down, and carrying away, thirty pine trees, from off the plaintiff’s land, without the consent of the owner. On the trial, it appeared, that Givens had hired one Davis, to build him two houses, and was to show him public land, on which the timber was to be cut.

Before the Hon. Clement C. Forbes, Judge. In this case, a petition- was filed by defendants, praying that the plaintiff in error, as guardian of the heirs of John Terrell, deceased, and who had removed from the state, should be compelled to make settlement of his accounts. Two of the heirs were married women, and they and their respective husbands, together with the other heirs, who are adults, united in the petition.

Before the Hon. George D. Shortridge. This was an action by defendant, against plaintiffs in error, to recover his salary as tutor in the University. The case was submitted on an agreed state of facts, which are set out in the opinion of the court, and upon which the court below rendered judgment for the defendant in error. This judgment is now assigned as error. 1.

Before the Hon. John D. Phelan. This was a motion by plaintiff in error, against defendant, as sheriff of Perry county, and his securities, for failing to make the money on an execution in his hands in favor of plaintiff, against one Hopkins.

Before the Hon. Sidney C. Posey. This was an action of slander, instituted by defendants against plaintiff in error. A sufficient notice of the first sount in the declaration, and the evidence adduced under it, will be found in the opinion of the court. The second count charges the speaking of the words, “ McKinnish’s wife has been counted a whore“ is a whore.” Plea, not guilty.

Before the Hon. N. Cook. This was a trial of the right of property, levied on under an execution in favor of defendant in error, against one Tho. A. Cargill, and claimed by plaintiff in error.

Before the Hon. W. W. Mason, Chancellor. The material facts of the case, are, that Moses L. Barr was appointed guardian of Julia and Mary Harding, by the orphans’ court of Madison, and gave Joseph Laughinghouse and Samuel Harris as his securities, and in February, 1837, being authorized to remove his guardianship to Benton county, he was appointed guardian by the orphans’ court of Benlon, and gave the complainant, and one Doyle as his securities.

The action in this case, was commenced in a justice’s court, by plaintiff, against defendant in error. The warrant of the justice requires the defendant to answer to a demand for $99 27. At the trial, a judgment was rendered by the justice, in favor of the plaintiff, for $36 45, from which the defendant appealed to the county court. In the county court, the plaintiff filed his declaration, laying his damages at the sum of $100.

Before the Hon. Preston G. Nash, Judge. This was an action of assumpsit, on the common counts only, by defendant, against plaintiff in error.

Before the Hon. Nathan Cook. This was an action by defendant against plaintiff in error, on a breach of warranty in the sale of six slaves.

Before the Hon. Edw. H. Cook, Judge. This was an application of Harriet E. Teams, a minor, over the age of fourteen, to appoint John N. Smith, the defendant in error, her guardian, in the place of the plaintiff in error, who had formerly been appointed by the court, before, under the statute, she had the right of election. The court granted the application, and made the appointment without notice to plaintiff, and this is now assigned as error. 1.

Before the Hon. Edward H. Cook, Judge. The facts all appear in the opinion of the court. 1. When execution shall have issued against any executor, administrator, or guardian, and shall have been returned “ no property found,” execution shall forthwith issue against the securities of such executor, administrator, or guardian. Clay’s Dig. 335. 2.

Before the Hon. Geo. Goldth waite. This was an action of assumpsit for money paid, laid out, and expended, and also for money had and received, brought by the plaintiff against the defendant. On the trial, it appeared, that the plaintiff and defendant, and two others, were securities on a note for $500, for one White, which was given to the Branch Bank at Montgomery.

Before the Hon. Nathan Cook. This was an action by plaintiffs against defendant, on a promissory note for $132 82, dated 26th January, 1842, at one day after date.

Before the Hon, Thomas A. Walker. This was a proceeding by scire facias, by plaintiff, against defendant in error, as administrator of one Gregory. An indictment was found against Lemuel Leonard, in the circuit court of Lawrence, for an assault, with intent to murder. A capias issued, under which Leonard was arrested, and entered into a recognizance, with Gregory, and another, as his sureties, before the sheriff of Lawrence county, for his appearance to answer the charge.

Before the Hon. Samuel Chapman. The defendant in error, as administrator of Thomas Wool-folk, declared against the plaintiff, in assumpsit. ' In the progress of the trial, a bill of exceptions was Sealed by the presiding judge, which presents the following facts: The deceased, Thomas Woolfolk, died in 1840, possessed Of a- plantation, and sundry slaves.

Before the Hon. Rufus C. Torrey, Judge. Action of assumpsit, by defendant, against the plaintiff in error, on the money counts. By bill of exceptions, it appears, that the parties were partners, under the name and style of Riley & Morrow, in the Monroe Springs, and kept a house of entertainment.

Before the Hon. Nathan Cook. This was an action of debt, by plaintiff, against the defendants in error, on an administration bond, suggesting a devastavit. The facts, and errors assigned, sufficiently appear in the opinion delivered by the court. 1.

Before the Hon. J. D. Phelan. The plaintiff in error, sued out an attachment against the defendant, returnable before a justice of the peace. The attachment was levied on a buggy, in the county of Dallas, by a constable of Perry county, who took possession, and brought it into the county of Perry. The attachment being returned, showing that it had been levied on a buggy, as the property. ■ of the defendant, judgment by default was rendered against the defendant.

Before the Hon. Nathan Cook. ■ This was an action by the defendant, against the plaintiffs in error, to recover the amount due- oh their promissory note, given for the purchase money of a sixteenth section.

<p>Error to the County Court of Mobile. Before the Hon. John A. Cuthbert, Judge.</p> <p>The facts fully appear in the opinion of the court.</p>

Before the Hon. George Goldthwaite. This was an action of assumpsit, on á promissory noté, éxecuted by the defendant, to the plaiñiiff’s intestate, for four hundred dollars, bearing date the 5th of May, Í846, and due the first day of January, 1847. The plaintiff read the note as evidence, and closed. The defendant then introduced a witness, who testified, that he was present when the defendant employed the plaintiff’s intestate, in the fall of 1845, to dig a well.

Petition- for a mandamus. The facts on, which the petition is based, sufficiently appear in the opinion. 1. The court of chancery, • not .being a. supervisory court,, cannot, prohibit the, orphans’ court from, proceeding to exercise its jurisdiction. 2. An injunction cannot issue, to enjoin another court. 2 Story’s Eq. Jurisp. § 875; Eden on Injunctions, ch. 2, ,p. 14. 3.

• Before the Hon. Clement C. Forbes, Judge. The facts are set out in the opinion of the court. 1. By the marriage, the husband and the wife are one pérson, in law; he is entitled to her work and labor, and all her earnings, and should he die his representatives are entitled to them.- 1 Bl. Com. t. p. 355; 1 Chitty’s PL t. p. 29 ; Chitty on Con, 38 ; Morris v. Booth and Wife, 8 Ala. Rep. '907. 2.

Before the Hon. Thomas A. Walker. The plaintiff in error was indicted at the fall term, 1847, of the circuit court of Lauderdale, fer selling slaves without a license, under the act of 1846. On the trial, the defendant requested the court to charge the jury, that the 2d section of the act of 1846, under which he was indicted, was repealed by the act of 1848, and that the defendant could not be convicted.

Before the Hon. Geo. D. Shortridge. This was an indictment against the plaintiff in error, for uttering and publishing counterfeit coin.

Before the Hon. Ezekiel Pickens. This was an action of tresspass, to try titles to several parcels of land, brought by plaintiff against defendant in error, and to recover damages.

Before the Hon. S. C. Posey. This was an action of trespass to try titles, brought by the plaintiffs in error, against the defendant, in the circuit court of St. Clair, and was removed by change of venue, to Benton. The plaintiffs, to show title in themselves, proved, that their father died seized of the premises. The defendant read to the jury, a transcript of entries, and proceedings, in the orphans’ court of St. Clair.

Before the Hon. George Goldthwaite. This was a motion, on the part of plaintiff, against defendant in error, to quash an execution, issued on a judgment rendered in favor of the defendant, againsCthe plaintiff, on the 3d October, 1838, and also a levy made thereon, in April, 1848, upon the ground, that on the 22d October, 1842, he filed his petition for the benefit of the bankrupt act, upon which, he, in the due course of proceeding, was duly declared a bankrupt, and…

Before the Hon. Joseph W. Lesesne, Chancellor, The facts of this case are sufficiently stated in the opinion of the court. 1. Though this is a civil case, yet the facts are criminal, and the consequences of the decree, serious and final; therefore, the strictest proof should be required. Evans v. Evans, 4 Eccl. Rep. 313, 342. 2. To entitle the wife to a divorce, the abandonment must be without fault on her part. Taylor v. Taylor, 6 Eccl.

Before the Hon. Geo. W. Stone. The court below erred in the charge given, and in refusing to give the charge asked for. Pam. Acts, ’45-6, p. 49. This act provides, that “a majority of the voters of the township in which such 16th section lies, voting in township meeting, &c.,, shall have full power to rescind or cancel the contract of sale,” Sfc.

Before the Hon. N. Cook. This was an action of assumpsit, on several promissory notes, instituted against defendant, originally in the name of the executors of John Sorrell, and afterwards revived in the name of plaintiff in error, as administrator, &c. A number of pleas were filed by the defendant, Upon which issue was taken, and among them the plea of ne unques executor. The suit was commenced in 1842, and the notes sued on, all matured 1839, ’40, and ’41.

Before the Hon,John Bragg. ■ •' :- This was an action of trespass on the ¡case, instituted by defendant, against plaintiffs in error. Held: that a transfer of a contract to purchase real estate, was a sufficient consideration, to support a promise to pay money; and that a court of error could .not say there was.no consideration, although the contract of purchase, may have been void, by reason of being by parobonly, the .defendant having enjoyed the benefit of his…

Before the Hon. Lemuel A. Gilkey. This was an action of assumpsit, brought by defendant, against plaintiffs in error, to recover of them the sum due on a promissory note, made by E. A. Reid. The declaration alleges, that Elizabeth Tanner, one of the plaintiffs in error, whilst she was unmarried, made the note, and that she did not, whilst unmarried, pay said note, nor have either of the defendants paid it, since their intermarriage.

Before the Hon. John A. Cuthbert, Judge. -■ In this ease, a petition 'was filed by. plaintiff in error,- who was the administrator of Jack F. Ross’s estate, for a superse-. deas, to stay proceedings on an-execution, issued in favor- of the distributees, on a decree, rendered upon final settlement.

The récord does not show before whom tried. On the 24th of March 1841, a suit commenced in the name of Powell, for the use of John Morgan, against Warner Washington, one of the defendants in error, in a justice’s court, to recover of him the sum of thirty five dollars, due by note, on which a judgment was rendered against said Washington.

Before the Hon. Edward H. Cook, Judge. The facts of this case are fully shown in the opinion of the court. 1. Bills payable at sight, being different from those payable on demand, (9th ed. Chit. 410,) should be presented for acceptance within a reasonable time, and before payment thereof be demanded. Chitty on Bills, 10th ed. 274; Fernandez v. Lewis, 1 McCord, 322.

Before the Hon. Anderson Crenshaw. The bill in this case was filed by defendant, against the plaintiffs in error, and alleges, that on the 1st of April, 1835, ¥m.W.&G.H Fry, executed and delivered to Peter A.- Rem-son and Miguel D. Eslava, their deed of mortgage whereby they conveyed to them, certain real estate in the city of Mobile, particularly described in the mortgage, which is made an exhibit to the bill, to secure a debt of forty two thousand three hundred and fifty…

Before the Hon. A. J. Saffold, Judge. This was an action of assumpsit, on the common and money counts, by plaintiff, as trustee of Clementina M. Walke, against the defendant in error. The record recites that, “ the defendant, in short, by consent, pleads, 1st. Non assumpsit. 2d. Payment. 3d. Off-set. 4th. Tender.

Before the Hon. George Goldthwaite. Action of trespass on the case, by plaintiff, against defendant in error.

-Before the Hon. Samuel Chapman. This was an action of trespass vi etarmis by plaintiff against defendant in error. It appears that the defendant, as sheriff of Walker, levied on a pair of oxen, in the possession of the plaintiff, under an execution in his hands, against the plaintiff and another person, whose name is not mentioned in the record, as the property of the latter.

Before the Hon. George Goldthwaite. This was a proceeding by certiorari, sued out at the instance of the State of Alabama ex rel. Dr. Francis L. Gilmer, to correct the errors of the commissioners’ court of roads and revenue of Montgomery county, in its action on an application of Thomas M. Barnett et als., to alter and change a pub-lie road.

Before the Hon. Geo. F. Smith, Judge. The facts of this case are stated in the opinion of the court. The averment of presentation, in this case, is insufficient. The absence of the partners, and the dissolution of the firm, did not authorize the presentment to an agent of one of the partners.

Before the Hon. John Bragg. This was an action of assumpsit by defendant, against plaintiff in error, on a promissory note for #250, in favor of George Bancroft, and by him endorsed in blank.

The record does not show before whom tried. The facts appear in the opinion of the court. The error assigned is, that judgment was rendered against plaintiff in error, in an action on two promissory notes, in favor of defendant, without declaration being filed. 1. A judgment by default, was rendered against the defendant below, at the spring term of the circuit court, 1848. The declaration in the case was filed as of the fall term following. This is a fatal error.

Before the Hon. Jos. W. Lessene. The bill in this case was filed by plaintiff in error, as the widow of Geo. Held: that the widow is entitled to dower, as against the heir, even where she has relinquished her right of dower to the mortgagee. 4 Kent’s Com. 44, 47, (3d Ed.) 5.

Before the Hon. Nathan Cook. Action of assumpsit, by defendant, against plaintiff in error, on the money counts. The defendant in the court below, pleaded the general issue, and statute of limitations.