Volume 16 — Alabama Reports

John D. Phelan. Debt by the defendant against the plaintiff in error. The declaration alleges, that the plaintiff in error, with Edward. B. Elliott, Thompson Windham, Enoch Elliott and William Y. Clover, executed their writing obligatory as follows; “ Know all men by these presents that we, Edward B. Elliott and Thompson Windham, as executors of John Spencer,. Hardin Perkins and Enoch Elliott, as securities for Edward B. Elliott, and.

- Tried before Hie Hon. John D. Phelan. This was an action of debt, instituted in the name of the defendant, for the use of Isaac N. Mayfield and wife, against the plaintiff in error, as a security on the bond of Edward B. Elliott, Executor of John Spencer, deceased. The facts of the case appear fully in the opinion of the Court. 1. A judgment on a general demurrer to a declaration is a final judgment on the merits.

Tried before the Hon. Thomas A. Walker. This was an action of detinue by the plaintiff in error against the defendant for the recovery of a slave and damages for his detention. The plaintiff claimed title under a mortgage executed to him on the 24th October, 1840, by James Jackson, the consideration and bona fides of which were admitted.

The next of kin having appeared and entered their caveat, an issue was made up and submitted to a jury, who returned their verdict, establishing the instrument, as the will of the deceased, and a decree was rendered in accordance therewith. In the progress of the trial, a hill of exceptions ivas taken, and subsequently a motion was made for a new trial, which was continued by the court.

Tried before the the Hon. George W. Lane. This was an action of detinue by the plaintiff against the-defendant in error to recover the possession of two slaves and damages for their detention. The plaintiff relied on a mortgage on the slaves in controversy, executed by one James-Jackson, in the State of Georgia, to the said plaintiff, on the 24th October 184-0.

■Error to the Circuit Court of Barbour. Tried before the Hon. George .Goldthwaite, 1. The breach must be within the words of the covenant: it must appear from the declaration thht the covenant was broken. Bearcc v. Jackson, 4 Mass. Rep. 408; Twamly v. Henly, ib. 441; Prescott v. Truman, ib. 627; Richert v. Sniffer, 9 Wend. 416; Pollard v. Dwight, 4 Crunch, 421; 2 Baton’s Ab. (Am. ed. 1846,) p. 577, 578, 580, 582, 585. 2. Covenant must be construed as commonly understood.

<p>1. This Court has no power to revise the action of the Orphans’ Court oil the annual settlement of a guardian’s accounts.</p>

Tried before the Hon. A. J. Saffold, Judge. 1. The administrators should, under the circumstances, stated in the bill of exceptions, have charged the administra--tors with the value of the slave Mary. The inventory is pri-ma fade evidence to charge them. Steele v. Knox, 10 Ala. '609.

- Thomas A. Walker. The plaintiff instituted his action against the defendant inCl-for for seducing, debauching, &c., the wife of the plaintiff and made application to the court for the' allowance of interrogatories under the statute to the defendant, in aid of liis action. The' court refused the application, and to revise thfe action of the court, the writ of error in this case is sued out. 1.

Tried before the Hon. Lemuel A. Gilkey, Judge.' On the 19th November 1846, the defendant in error contested the will of Philip Noland, deceased, and having failed, judgment was rendered against him in favor of the plaintiffs in error, the executors, for the costs of the proceeding.

Tried before the Hon. Nathan Cook. This was an action of assumpsit, by the defendant against the plaintiff in error, for .ptoney lent and advanced. The following facts appear frpm a bill of exceptions found in the record.

Tried before the Plon. Samuel Chapman. The demurrer of defendant below (plaintiff here) to the 3d count of the plaintiff’s declaration, should have been sustained. That count does not aver the manner, nor the fact of the termination of the prosecution, alleged to be malicious. 1. It should have ay erred that the defendant was acquitted, or, at least, discharged from the prosécution. 2 Ch. PI. 606, n. p.; 2 Greenl. Ev. § 452; 1 Har.

Tried before thé Hon. George W. Lane. The plaintiff in error was tried under an indictment, charging him with an affray.

Before the Hon. Wilie W. Mason, Chancellor. The facts of this case appear in the opinion of the court. 1. The entire clause pf the will above referred to, shows that the $2000 directed to be retained in the hands of the executors, is a separate estate for the benfit of the wife and children, and the legal title is in the executors. 2.

1. The instrument declared on contains a warranty of the soundness and healthiness of the slave, and imports an agreement to that effect, Cramer v. Bradshaw, 10 Johnson, 484; Gilchrist v. Morrow, 2 Car.

Tried before the Hon. George Goldthwaite. This was an' action by a landlord against his tenants to re'* cover rent. The proof conduced to show, that the defendants leased a store of plaintiff for one year, ending the first of No - vember 1844. At the expiration of the term, they held over without a renewal of the lease. The defendants were partners, and' in January 1845, dissolved their partnership, and abandoned the premises.

Tried before Ibe Hon. George Goldthwaite. Held: that there was no difference. See 2 Kel. Geo. Rep., first case and the authorities there cited. 1. The circuit court has the power to admit a landlord, in to defend, where his tenant at will is sought to be ejected. Clay’s Dig. 321, § 49; Doe, ex clem. Davis vs. McKinney, 5 Ala. Rep. 719; Thompson v. Ives, 11 Ala.

of Montgomery. Before the Hon. Jos. W, Lesesne, -Chancellor.

Bragg. This was a trial of the right of property in several slaves, levied on under an execution, in favor of the defendant in error, against Alonzo B. Dossey, and claimed by the plaintifF in error, as the trustee of Mary M. Dossey, wife of the said Alonzo B. The plaintiff in execution introduced proof of possession by said Alonzo B. of the slaves in controversy, at the time of the levy, and of their value.

Error fo the Circuit Court of Tuskaloosa. Tried before the Hon. Thomas A. Walker. The facts are fully set out in the opinion of the court. 1. The plaintiffs in error were entitled to make any defence in this case, in the court below, that could have been made, if the action bad been debt instead of scire facias. 1 Chitty’s PL 481, 485- 2. If this action had been debt, founded upon a judgment of a sister State, it is clear, the defence made by the pleas must have prevailed.

Tried before the Hon. Wm. M. Gallaway, Judge. This was a motion by the defendants in error to quash an execution issued from the Orphans’ Court of Lawrence, in favor of the plaintiff in error. The facts are sufficiently set out in the opinion of the court. The Judge .of the Orphans’ Court sustained the motion, and the same is now assigned as error. 1.

Clair, Tried before the Hon. Thomas A. Walker,. Assumpsit by the defendant against the plaintiffs in error, ■as executors of John Robertson, deceased.

Tried before the Hon. Nathan Cook. This was an aclion of debt on a bill single by defendant 'against the plaintiff in error.

Tried before the Hon. Sidney C. Posey. Assumpsit for rent of'land, instituted by defendant in error, for the use of Benham against Henry Smith, and after his death revived against the plaintiffs in error as his executors.

Tried before tlie ITon. Geo. W. Stone. ' Detinue for a slave by plaintiff against defendant in error. The plaintiff examined a witness, who testified that in the latter part of the year 1844, he heard one Hardy Jones, at that time the owner of the slavej say, that he had given the slave to plaintiff, and hired her from him at $5 per month until his crop was gathered. The slave remained in the possession of Jones until the early part of the year 1845, at which time Jones died.

Tried before the Hon. A. Crenshaw, Chancellor. Tiie facts appear in the opinion of the court. 1. The Court of Chancery has jurisdiction to make a settlement in favor of a married woman out of her own property, whether at her suit or at the suit of her husband, or his assignees or creditors. 2 Story’s Eq. § 1404, § 1408; Lady Eli-bank v. Moatolien, 5 Yes. 743; 1 Danl. Ch. Pr. 149, 150; Griffith v. Hood, 2 Ves. 452; Haviland v. Myers, 6 Johns.

Before the Hon. David G. Ligón, Chancellor. The bill in this case was filed by the complainants, and alleges, that in 1837, Lunda Lee, their grandfather, died, leaving two children, Betsey M. and Nancy H. — the first of whom, in 1832, intermarried, with the defendant, Williams Coxe, and the last, in 1819, with James Nance, of which marriage the complainants and Pleasant Ann, the wife of Nixon Coxe, are the issue, and that they are now the only living descendants of Lunda1…

Tried before the Hon. A. Crenshaw, Chancellor. The facts of this case are fully set out in the opinion. 1. The complainant shows in his bill that he is neither in possession, nor entitled to the possession of the premises, that he has no interest in them, but that the estate belongs to others. For this want of title apparent on the face of the bill, a demurrer lies, or the bill for the want of title to relief, may be dismissed. Story’s Eq. PL 389; 1 Story’s Eq. 101,102. 2.

Tried before the Hon. John Bragg. The facts in this case appear in the opinion of the court. 1. The death of Thomas Sanders,. the original plaintiff, is not in any manner shown upon the record. Meggison was, therefore, improperly made a party in his stead. Curry & Co. v. Paine, adm’r, 3 Ala. 154; Hughes v. Ringstaff, 11 do. 566; 1 Saund. PI. & Ev. 402; Thompson v. Donaldson, 3 Esp. 63; Try v. Hard, 8 Pick. 529. 2.

Before the Hon. John E. Jones, Judge. This was an indictment against plaintiff in error for a nuisance in erecting and continuing a number of large posts in the Mobile river, so as to obstruct the navigation thereof. A verdict of guilty was returned by the jury, and thereupon a judgment was rendered,’ which is sufficiently set out in- the opinion of the court for a full understanding of the question involved. The judgment of the court is now assigned as error. 1.

Tried before the lion. John Bragg, Circuit Judge. The facts of this case are fully stated in the opinion of the court. 1.

. Tried before the Hon. John Bragg. The facts are stated in the opinion of the court. 1. The plaintiff below showed no title to the slave for whose services hire is claimed. A deed of gift is a contract which, like all other contracts, may be rescinded by the consent of the parties thereto. The testimony shows a recission of the gift on the part of Sturdevant and wife, by returning the deed and negroes to the testator, (Britton Mims,) by whom they loere received.

Before the IIo.u. David G. Ligón, Chancellor. The bill in this case was filed by plaintiff against defendants in error, and alleges, that on the 15th February 1844, he confessed a judgment in the County Court of Talladega in favor of the defendant, Barclay, for $1048, on which Barclay has had execution issued and handed to the sheriff, who has levied the same on slaves belonging to plaintiff, and will sell the same unless restrained, and that the judgment was confessed under…

Tried before the Hon. A. J. Saffold. / / DetiNue for a number of alavés by defendant against the plaintiff in error, who was the administrator AA^jh the will annexed of Richard B. Harris an, deceased, and alsb a distribu-tee of his estate. The slaves in controversy vbelonged to the decedent in South Carolina, and were in cha^gfe of the defendant in error as his overseer. The latter livecT with an illegitimate daughter of the decedent as his wife, but they were never married.

Tried before the Hon. John Bragg. 1. The writ of right, strictly so called, lies only in favor of one who claims a fee simple estate. But other writs, called writs in the natwe of writs of right, lie to recover lands by persons claiming a free-hold less than a fee simple. 3 Black. Com. 193. Thus such a writ lies to recover dower — an estate strikingly analogous to curtesy. Roscoe on Real Actions, 29.

Tried before the Hon. Nathan Cook. The facts of this case are fully set out in the opinion of the court. 1. The intention of the testator must prevail, and to ascertain it, every clause in the instrument may be looked to, and every word in each clause weighed.

Tried before the Hon. John D. Phelan. This was an action by plaintiff against defendant in error on a writing under seal, by which the defendant acknowledged to have received from the plaintiff the sum of fifteen hundred dollars, which he covenanted with him to pay over to certain persons in Tennessee, in specified amounts. The defendant interposed the plea of infancy, to which the plaintiff replied a promise to pay after he had become of age.

Tried before the Hon. John Bragg. This was a trial of the right to a slave, levied on under an execution in favor of defendant in error against James H. Draughan, and claimed by the plaintiff in error as trustee of Jane S. Draughan, wife of the said James H. The plaintiff in execution having proven possession of the slave by the said James H. Draughan at the time of the levy, and its value, the claimant read to the jury a deed from James M. Lindsey to the said Jane.S.…

Tried before the Hon. Jos. W. Lesesne, Chancellor. The defendants in error .filed their bill to foreclose a mortgage, executed by the plaintiffs in error, to secure the payment of two notes given to them as Ihe agents of Hinman & Dut-ton.

Tried before the Hon. John Bragg. This was an action of assumpsit by plainti^igainst the defendant in error.

Tried before the lion. S. G. Cochran. Assumpsit by the plaintiff against the defendant in error.

Tried before the Hon. John Bragg. This was an action of debt commenced by the defendant against the plaintiff in error in a Justice’s Court, to recover the penalty imposed by the act of 20th December 1820, for obstructing or injuring the waters of Three Mile Creek, near the city of Mobile, by permitting the saw-dust from his mill to fall therein.

Tried before the Hon. Wm. H. Walker, Judge. The plaintiff in error, as administrator, with the will annexed, of Patrocleus Lewis, deceased, rendered his accounts and vouchers to the Orphans’ Court of Limestone for a final settlement of his administration.

Tried before the Hon. Samuel Chapman. In this case an application was made to the court by the sheriff of Sumter, for direction as to the appropriation of a sum of money in his hands, raised by sale under execution of the land of one Blake Little.

Tried before the Hon. Jos. W. Lesesne, chancellor. The bill alleges that William McDaniel, on the 27th day of April 1837, executed bis promissaiy note to one Henry Dickinson, for two thousand one hundred and thirty-eight dollars, payable on the first day of January 1840, with interest from date, which was transfered to the complainant by said Dickinson on the same day for a 'valuable consideration: that complainant is now the owner of said note, and that it has never been…

Error tc the Circuit Court of Mobile;. Tried, before the Hon. Jolnr Bragg.. Held: that the jury might presume a restoration of possession, to the heirs, then- an. ouster, and so a title. Camp v. Camp, 5 Conn. 291, 301 — 2 and seq. Presumptions do not proceed on a belief that the thing, presumed has actually- taken place.

Before the Hon. W. W. Mason, chancellor. The bill, which was filed by defendants against plaintiffs in error, two of whom are infants, to recover certain slaves and to have an account of their hire, &c., alleges that Jonathan Brantly, the father of the complainants, on the 12th Sept. 1834, conveyed by deed to James B. Brantly, another child, certain slaves, for and during the term of his natural life, and at his death, having no child or children then living, to his brothers…

This was a proceeding by the plaintiff in error as guardian of the minor children of Robert White, dee'eased, against the defendant in error, as a former guardian, to compel a final settlement of his accounts. The accounts of the defendant in error were contested, and the court summoned a jury to try the issue. The remaining facts appeal- in the opinion. The jury rendered a verdict in favor of defendant in error, and the court decreed accordingly.

Tried before the Hon. Nathan Cook. Tins was a suit commenced in the Circuit Court of Talla-dega by attachment sued out at the instance of the defendant against the plaintiff in error, to recover the amount due on a promissory note, executed by John and William Tidmore to Herndon and Kelly, and endorsed and delivered by the plaintiff to the defendant in error. A plea in abatement is found in the record, but nothing to indicate what disposition was made of it.

Tried before the Hon. Nathan Cook. The facts of this -case appear fully in the opinion of the Court.

Tried before the Hon. John Bragg. This was an action of trespass quare clausum fregil, instituted by the plaintiff against the defendant in error for rents and profits of the premises mentioned in the declaration. The case was submitted to the judgment of the court below on an agreed state of facts, which so far they are necessary to be recited areas follows: William W. Fry, the ancestor of the plaintiff and George W. Fry owned the premises jointly.

Tried before the Hon. Terrell Powers, Judge. In 1843, P. T. Harris qualified as executor of Thomas L. Starke, deceased, was succeeded in the administration by Bil-lups Gayle, who resigned in December 1845, and he by the defendant in error, who was appointed administrator de bonis non in January 1846, and upon whose representation the. estate was declared insolvent on the 14th December 1846, The plaintiff in error was then selected and qualified as administrator.

Tried before the Hon. Geo. W. Stone. This was a trial of the right of property in three slaves, which, on the 12th day of April 1847, were levied upon under an attachment in favor of plaintiff in error against Thomas M. Nelson, and claimed by William N. Nelson, the defendant in error, as trustee of Anna Matilda Nelson, and of certain creditors of the said Thomas M. The plaintiff having made out a prima facie case, the claimant read in evidence a marriage contract, executed…

Ym. H. Stearns petitioned the Judge of the Orphans’ Court for partition of certain lands, alleging that he was entitled to one sixth part equally with five others, who as heirs at law held by descent from William H. Bryant. One of the five, William Bryant, is stated to be' a lunatic.

Tried before the Hon. Nathan Cook. This was a trial of the right of property in several slaves, levied on in July 1842, by virtue of an attachment in favor of the defendants in error against Nicholas Scales, and claimed by Joseph H. Scales, under a deed of trust executed to him by the defendant in attachment on the 21st October 1840. The claim was interposed by the plaintiff in error on the day of levy.

<p>1. Where the facts of a case are clear and undisputed, the court may charge directly upon them without hypothesis.</p> <p>2. W., a resident of North Carolina, executed to C., of the same State, a power of attorney to receive a slave from S., who resided in Alabama, and to sell him: C. passing through Alabama on his way to Mississippi, received the slave from S. and endeavored to sell him, but failed to do so : He then endeavored to hire him, but in this also was unsuccessful', and, not being authorised to incur the expense of taking the slave along with him in the stage — the mode of conveyance by which he was travelling — he thereupon left him with S., free of hire, until W. could be informed of the circumstances and make some other disposition of the slave: Held — That in this unforeseen emergency, the agent acted in the line of his duty, and that S. is not liable for the hire of the slave.</p> <p>3. The declarations of an agent, acting within the scope of his authority, and of the party with whom he contracts, when made at the time of a transaction, are a part of the res gesta;, and admisisble in evidence. •</p>

Before the Hpn. David G. Ligón, Chancellor. The bill in this case was filed by the defendants against the plaintiffs in error. The facts are fully set out in the opinion of the court. The chancellor decreed in favor of the complainants and his decree is now assigned as error. 1. Pope has the right to dispute the complainants title, having been induced to recognise it by the representations of the complainants. Law Lib. Oct. 1846,150; 2d U. S. Dig. 740, § 144; 2d Phil. Ev.

Tried before the Hon. John Bragg. Tun defendant in error made affidavit that William D. Primrose was indebted to him by judgment in the County Court of Mobile, in the sum of $2333, and that execution had issued and been returned no property, &c.; whereupon a summons of garnishment was served on the plaintiff in error, his alleged debtor, returnable to the February term 1846 of said court.— The garnishee at the same term filed his answer, in which he stated that he made an…

This suit was commenced in a Justice’s Court, and taken by appeal to the County Court. The plaintiff having established his demand, the defendant proved as an offset an account for work done by one Richardson, who was a journeyman wheelright in the employment of defendant.

<p>Error to the County Court of Barbour.</p>

Tried before the Hon. Sidney C. Posey. This was an action of trover, in which the plaintiff sought to-recover damages of the defendant in error for the conversion by him of several horses. The evidence conduced to show that the plaintiff for his own accommodation and benefit received from the defendant, the note ofthe latter for two hundred dollars, and left with the defendant the horses in question as a security or indemnity against it.

Tried before the Hon. Geo. W. Stone. This was an action of debt instituted by, the defendant in error, for the use of Robert N. Murphy, against the plaintiffs in error, on a bond executed by them as administrator and ad-ministratrix of the estate of Archibold K. Smith — suggesting a devastavit.

. The defendant in error as guardian of Nancy Cross', received from the clerk of the Orphans’ Court of Perry a sum of money as- the distributive share of ihe estate of bis ward’s mother. The ward intermarried with the plaintiff in error, McDaniel, and died before she arrived at the age of twenty-one',, and without any thing being done to reduce the money in the guardian’s hands to the actual possession of the husband.

Tried before the Hon. Nathan Cook. 1. Independent of the facts stated to the court by plaintiff’s counsel, the proof abundantly shows that Thomas White, the patentee, was a mere nominal plaintiff. It is not necessary that the record should disclose the party in interest, unless called to indemnify the nominal plaintiff for costs. Brazier v, Tarver, 4 Ala. 569. 2.

1. The petition is insufficient — it should have alleged the title to have been in Vann, at the time of his decease; such a state of facts should be stated as will bring the party within the statute; therefore it is necessary to state the title to have been in the deceased vendor- to give the court jurisdiction. Clay’s Digest, 157 § 38; Simpson v. Simpson, Minor Rep. 33; Crim’s adm’r'v. Townsend, 9 Ala. 403. 2.

Tried before the Hon. John Bragg. Debt on bond by defendant against plaintiffs in error, commenced in a justice’s court and taken by appeal to the Circuit Court of Mobile.

Tried before the Hon. Preston G. Nash. The defendants in error, — the latter of whom was the widow of John Knox, and, in conjunction with John Steele, administered on her deceased husband’s estate — on the final settlement of Steele’s administration, obtained a decree against him for her distributive share, upon which an execution issued returnable to a monthly term of the Orphans’ Court, and was returned no property.

<p>Error to the Criminal Court of Mobile. Tried before the Hon. John E. Jones.</p>

Tried before the Hon. Edward H. Cook. This was a proceeding on supersedeas, sued out by the defendant against the plaintiff in error, to arrest and quash an execution, on the ground that the defendant was a certificated bankrupt, having obtained his discharge in 1842.

Tried before the Hon. John D. Phelan. Tins was an action of assumpsit by the defendant against the plaintiff in error, for the recovery of toll on near three hundred bales of cotton, shipped on a flat boat of the plaintiff' down that portion of the Cahawba river improved and rendered navigable by the said defendant, under the act of the Legislature incorporating it, &c. The defendant in error having proved the shipment of the cotton, and read the several acts of the…

Error fo the Circuit Court of Madison. Tried before the Hon. Daniel Coleman. This was an action of debt instituted by the plaintiff against the defendant in error on a note for $3000,. made payable to-one James B. Vaught, and- by him assigned to the plaintiff.. The facts of the case are sufficiently noticed in the opinion of the court. 1.

Tried before the Hon. John Bragg. Rule by plaintiff against defendants in error, for the failure of Spinks to return an execution, &c. The excuse relied on in defence was that the sheriff had delivered the execution to the plaintiff, who promised to return it. In the course of the trial, the sheriff himself was permitted by the Court, against the plaintiff’s objection, to testily in his own behalf.

Tried before the Hon. John Bragg. 1. The plaintiff had the right to fill up the endorsement of Crawford & Gandy to himself, and being in blank, it has the same legal effect as if filled up, and the defendant could not prove property in the assignee of Crawford & Son, without a sworn plea. See 10 Ala. Rep. 817, and the numerous cases there cited, decided by this court; 9 Port. 309; 14 Ala. R. 619. 2.

Tried before the1 Hon. Richard S. Watkins, Judge. Assumpsit by defendant against plaintiffs in error on the endorsement by their intestate of a promissory note made by David Deshler, dated 18th January 1840,. at twenty-eight months after date, and payable at the Planters’ Bank of Tennessee at Nashville. The suit was instituted on the'23d July 1842. The declaration contained five counts, to the third, fourth and fifth of which a demurrer was interposed.

Tried before the Hon. Geo. W. Stone. This was an action by the plaintiff against the defendant in error as the drawer of a bill of exchange for $5,500, drawn on and accepted by William Bower & Co., in favor of A. W. Coleman, and by him endorsed, payable at the Bank of Mobile.

<p>Error to thé Chancery Court of Mobile. Before' the Hon. Joseph W. Lesesne, chancellor.</p>

From the Criminal Court of Mobile. Tried before the Hon. John E. Jones, Judge. 1. The Criminal Court of Mobile has no jurisdiction of the offence charged in the indictment. The grant of jurisdiction in the 98th section of the revenue act to the Circmt Court, is by legal construction an exclusion of the Criminal Court. 2. The question of jurisdiction arises upon the record, without plea. Wyatt v. Judge, 7 Porter, 37; Merrill v. Jones, 8 ib. 554; Bell v. Tomb. ft.

Tried before the Hon. George Goldthwaite. This was an action of trespass to try titles to certain lots in the town of Marion, and was instituted by the defendant against the plaintiff in error. The plaintiff on the trial read in evidence a deed of trust executed by John Huntington to Wil- - liam Howell, on the 17th September 1840, to which deed Jas.

Tried before the Hon/ John Bragg. 1. When a suit is continued and:the continuance entered of record, the parties are then discharged from attendance until next .term, It is erroneous during same term to proceed to final judgment. Innerarity v. Frowner, 2 Ala, Rep. 150. 2. The court cannot order plaintiff to be non-suited against his consent. Smith’s adm’r v. Taylor & Seaton, Min. Rep.,75; Phillips v. Jordan, 3 Stewart, 38; Hun.t v. Stewart, 7 Ala. Rep. 525. 3.

Tried before the Hon. A.. Crenshaw.. The bill in this case wad filed by the plaintiff hgainst the defendant in error, and was dismissed by the chancellor, at the hearing, for want of equity. The facts appear fully in the opinion of the court. 1. The objection to the bill is in the nature of a demurrer to thq jurisdiction of the court, of which the complainant should have had previous notice; but none was given until the objection was made in argument.

Tried before the Hon. John E. Jones, Judge. The facts of this case appear fully in the opinion of the Court. 1. The indictment was defective, and the demurrer to it should have been sustained. The statute contemplates that there must be an informer, and that his name must appear as such in connection with the indictment. The language of the statute excludes the idea of an indictment to be found in the ordinary way.

Tried before the Hon. Jas. A. Young, Judge. The estate of the plaintiff’s intestate having been duly declared insolvent, the defendant in error as evidence of a demand held by him against the estate, on the same day, filed with the clerk a certificate of the clerk of the Circuit Court of Perry county, stating that a judgment was rendered on the 19th May 1843 in said court, in favor of the defendant against the plaintiff in error for $3630 44, and appeared on the record as…

Tried before the Hon. A. Crenshaw. 1. The wife may maintain her bill upon the abandonment and ill usage of her husband as a bill standing alone on this ground, and not incidental to a Bill for divorce or the execution of a contract to settle.

Tried before the Hon. N. Cook. The facts of this case may be thus stated: The plaintiffs, as attorneys and partners in the practice of law, had performed various services for the Bank of Rome, and for which the bank was indebted to them. In the settlement of a claim they held on one Thomas, at the request of the agent of the bank, they took a note for twenty-four hundred dollars in the name of Estill alone.

Phelan. This was an action of assumpsit, by the defendant against the plaintiff in error, to recover contribution for monies paid by him, as co-surety with William H. Jones,, the plaintiff’s-intestate, of one Allen Jones.

Tried before the Hon. Nathan Cook. Assumpsit by defendant, against plaintiff in error as administrator of Thomas Evans, deceased. In 1839, Harris S. Evans as principal, and the defendant in error and Thomas Evans, deceased, as his sureties, executed a note to one Coley for upwards of $1100, on which’suit was brought and judgment rendered, at the fall term 1839 of Wilcox Circuit Court, against the defendant in error alone, the other parties to it having in the meantime died.

Tried before the Hon. John Bragg. 1 This was an action of debt to recover rent of land, and was commenced by the defendant against the plaintiff in error, in a justice’s court, and thence carried by appeal to the Circuit Court. The facts are sufficiently set out by the court in its opinion for a full understanding of the points decided.

Before the Hon. Joseph W. Lesesne, chancellor. The bill in this case was filed by the defendant against the plaintiff in error, to redeem two slaves, Pompey and Julia.

This was a proceeding before the Orphans’ Court for a final settlement of the administration of James Maul], deceased, on the estate of James P. Larkins. It appeared that Maull, the administrator, had reported the estate of his intestate insolvent, and that on the 8th of July 1844, after due notice, a decree was rendered declaring said estate insolvent. A final settlement was ordered to be made on the 14th day of April 1845.

Tried before the Hon. John Bragg. Detinue by the plaintiff as executor of Alexander B. Pur-year, deceased, to recover of the defendant in error, who is the widow of his testator, slaves Sarah, Anna and Harriet, and her four children.

Heard before the Hon. A. Crenshaw, chancellor. The bill in this case was filed by the plaintiff against the defendants in error, and makes in substance the following case Elizabeth Kelly died in 1833, intestate, possessed of several slaves and owing debts to the amount of $115 only.

Before the Hon. David G. Ligón, chancellor. 1. A deed absolute on its face will not be declared a mortgage, or conditional sale, but on the most stringent and conclusive proof The early eases in this court declare the law, that a contract absolute on its face may be shown by parol to be a mortgage or conditional sale.

- Error to the Chancery Court of Fayette. Heard before the Hon. Wilie W. Mason, chancellor. ■ The bill in this ease was filed on the 9th of March 1843, by the plaintiff against the defendants in error, three of whom were infants. The record does not shew, that service was ever perfected on the infant defendants otherwise than by delivering a subpoena to their mother, who was also a defendant to the bill. The remaining facts appear in the opinion of the court.

Tried before the Hon. John A. Cuthbert. This was a rule sued out by the plaintiff against the defendant in error and the sheriff of Perry county, to show cause why a sale of certain lands, to which the plaintiff claims title and of which he held the possession, made by said sheriff under an execution issued on a judgment rendered in the County Court of Mobile in favor of the Branch of the Bank of the State of Alabama at Mobile against one A. B. Hopkins, should not be set…

Tried before the Hon. Geo. W. Stone. Trover by defendant against the plaintiff in error for the conversion of a slave. Each party claimed title through John T. Goldsmith, deceased, — the plaintiff as guardian of George M. Goldsmith, her son by said deceased, and the defendant as guardian of John T. Goldsmith, a son of the deceased by a former marriage.

Tried before the Hon. Wilie W. Mason, chancellor. Tars was a bill filed on the 6th of March 1846, by defendant against the plaintiff in error, for the rescisión of a contract for the purchase of land.

Tried before the Hon. Samuel Chapman. This was a itrial of the right of property in a slave by the name of Captain, levied on under an execution in favor of the ■defendant in error for the use of Goodwin & Walthall against Thomas Batte, sr., and claimed by the plaintiff in error.

Before the Hon. Jos. W. Lesesne, Chancellor. Tiib bill, which was filed by the plaintiffs against the defendants in error as legatees of Joseph Johnston, alleges that at the time of the testator’s death, he was indebted to them in the sum of $195, and that after his death his executors contracted a debt with them for the benefit of the estate to the amount of $229, both of which demands were presented to the said executors within eighteen months after grant of letters…

Tried before the Hon. Samuel Chapman. TRbspass to try title by defendant against plaintiff in error to a lot of land, described in the declaration as the lot in the town of Pickensville, Pickens county, known in the plat of said town as number twenty-eight.

<p>1. An assignment by an insolvent debtor for the benefit of creditors, which, after empowering the trustee to expose the property to sale on the best terms practicable, either at private sale or public auction-, for cash or on credit, as shall in his opinion most comport with the interest of all parties concered, requires him, if the property is not sold within</p> <p>■ six months, to sell it at public auction, &c., is not rendered fraudulent on its face by a provision that the debtor shall retain possession of certain of the property conveyed until a favorable opportunity for the sale of it shall offer — such possession being expressly limited to the time for the sale at public auction.</p> <p>2. That a trustee is authorised to sell for cash or on credit, as shall in his opinion most comport with the interest of all parties concerned, is not sufficient to affect the validity of a deed of assignment for the benefit of creditors.</p> <p>3. Where a deed of assignment is not fraudulent on its face, it is competent to show by parol proof that no secret fraud was intended to be consummated by it.</p> <p>4. Where the trustee by a deed of assignment is given the discretionary power to sell whenever he thinks proper, either at private or public sale, a provision that the assignor shall retain possession of the chattels conveyed, until a favorable opportunity for the sale of them shall offer, does not impair the right of the trustee to reduce them to his immediate possession, or to maintain trover against one who converts them.</p> <p>6. The wrongful seizure under an attachment of goods in the hands of a bailee, and taking from him a forthcoming bond for their delivery, is such a conversion as will support an action of trover by the owner against the sheriff.</p> <p>6. The assent of creditors will be presumed to a deed of assignment, which appropriates the property conveyed absolutely and unconditionally to the payment of their debts.</p> <p>7. Where a deed of assignment is not fraudulent on its face, the possession and use of the property by the assignor, in conformity with the express provisions of the deed, cannot render it void.</p> <p>fi. The fraudulent intent of the grantor alone will not avoid a deed of assignment for the benefit of creditors.</p>

Tried- before the Hon. John Bragg. This was an action of ejectment brought by the plaintiffs1 against the defendants in error to recover certain real estate-in the city of Mobile.

Tried before the Hon. John D. Phelan. m as This was an action of trespass to try titles to three lots of round in the city of Montgomery designated by the numbers… Held: were purchasers without notice,, but the court was bound from the evidence to declare that they bought with notice. 10th. The mortgage having beetrrecorded within the time required by statute, the defect of the probate cannot impair the validity of the record as notice. Hobson v. Kissam, 8 Ala, 357. 11th.

Tried before the Hon. Wilie W. Mason, chancellor. The bill was filed in May 1843 by the plaintiffs in error as judgment creditors of Thomas W. & John Smith, partners using ihe firm name of T. W. Smith & Son, and alleges that one or both oí said firm have an equitable intersst in various tracts of land in Coosa county, viz, the W. 1-2 Sec. 17, T. 23, R. 20 — the E. 1-2 18, in the same Township and Range — the W. 1-2 19, T. 24, R. 18 — the E. 1-2 31, T. 24, R. 19. — a half…

' Error to the County Court of Mobile. Tried before the Hon. John A. Cuthbert.

Tried before the Hon. Jos. W. Lesesne, chancellor. The bill in this casé was filed in June 1841 by the defendants in error, as creditors of William It. Meyer, against him, Richard B. Harrison, et al. to enforce 1he provisions of a deed of trust executed for the benefit of his creditors generally in April 1840 by said Meyer to the said Harrison.

Before the Hon. David G. Ligón, Chancellor. The bill in this case was filed by the plaintiff in error as executor of Henry Anderson, against the defendant in error as the administrator •cum testamento annexo of Samuel Savage, and makes the following ease: Samuel Savage died in 1837, leaving a will, a copy of which is made an exhibit to the bill, by which he directs that his property, both real and personal, be kept together and managed by his executors until the death of his…

Tried before the Hon. Nathan Cook. 1. At common law an ante-riuplial contract could not be set up in bar of dower — Bae. Ab. Tit. Jointure; 2 Ala. 83; but the statute of 27th of Henry VIII, commonly called the statute of uses, altered the common law in this réspect.

<p>1. S. H. G. and C. J. G., in exchange for the bonds, payable at a future day, of The Ala. L. Ins. &. Tr. Co. — a corporation whose charter does not authorise it to lend its credits — executed to the company their individual bond, secured by mortgage, which they afterwards took up by transfering to the company the notes of E. given to them for land. E., before the transfer of his notes, had made a payment on one oi them,1 which S. H. G. and C. J. G. neglected to enter, and in consideration thereof, they gave him their note for the amount of the payment,’which hetransfered to the company in part discharge of his notes, and which was subsequently taken up by S. H. G.’s substitution of his own note therefor, payable to the company : Held — That the note of S. H. G. is not vitiated by the invalidity of the original contract between him and C. J G. and the company, but'is founded on a sufficient consideration.</p>

Geo. D. Shortridge. • This was an action of trespass to try title to a lot and improvements in the town of Elyton, and was instituted by the defendant against the plaintiffs in error.

Tried before the Hon. Jos. W. Lesesne, chancellors This case turns on the construction of the statutes — Clay’s Dig. p. 316, § 23, and p. 310, § 25 — which were enacted in 1826 and ’7, while the circuit and chancery courts were one. The statute empowers clerks of the circuit courts, clerks of the couuty cowts and justices of the peace, whenever executions are returned “ no property found,” to issue against the successful party for costs caused by him.

Tried before the Hon. Thos. S. Mays, Judge. LbtteRS of administration on the estate of Brittain Willis, deceased, were granted to the plaintiff in error in January 1837, revoked and granted to Moses McLemore in October 1845, and, on his resignation in April 1846, again granted to the plaintiff.

<p>1. When a claimant has appeared and proceeded without objection to a trial of the right of property, he cannot insist for the first time in this court that the suit was discontinued for want of prosecution.</p> <p>2. Either party in a claim suit has the right before trial to require that the issue be made up, but if they go to trial without doing so, the want of an issue cannot be assigned in this court as error.</p> <p>3. Where the verdict in a claim suit finds the issue generally in favor of the plaintiff, a judgment condemning the interest of one defendant in execution only is variant from the verdict and erroneous, but the error is one which does not require the cause to be remanded, and will consequently be here corrected at the cost of the plaintiff in error.</p>

Berttbn. Tried before the Hon. Thos. Ai Walker». 1. The demurrer should have been sustained to both of the counts in the indictment for their uncertainty in the description of the road, for not keeping which in repair, &e. he was indicted.

Tried before the Hon. Nathan Cook. This was an action of trespass vi et armis by the plaintiff against the defendants in error for an assault and battery committed by them on the person of a slave, the property of the plaintiff. Pleas — not guilty, and that they whipped the slave by permission of the plaintiff, which is the trespass complained of.

Hrror to the Circuit Court of Jefferson. Tried before the Hon. John D. Phelan. Thomas, the defendant in error, claiming under a deed of trust, executed on the 25th October 1848, by William H. Grimes, brought an action of detinue against the plaintiff in error to recover eight horses.

Tried before the Hon. Samuel Chapman. 1. The principal clerk was authorised by statute to receive the sum of money mentioned in the indictment. — Clay’s Dig. 147, § 24; Murray v. Charles, 5 Ala. Rep. 678. 2. The principal clerk is bound by the acts of his deputy in the ordinary course of his business, and payment to his deputy is a payment to him of the amount of a judgment. — Weddes v. J, W. & S. Esdell, 2 McLean, 366; Stuart v. Madison, 1 Call, 417, 3.

• Error to the Circuit Court of Russell. Tried before the Hon. J. J. Woodward. The plaintiff in error was indicted for the murder of one Mavin Whatley. After the jury was impannelled, the counsel of the prisoner asked that the witnesses on the part of the State be put under the rule, which was accordingly done.

Tried before the Hon. Thos. A. Walker. This was a rule against the sheriff, Solomon Spence,, for failing to make the money on an execution placed in his hands in favor of the plaintiff in error against one Wm. H. Moore.

Tried before Ihe Hon. Geo. Goldthwate. 1. The only question presented on the record, is as to the right of the executrix of an administrator to revive by sei.fa. a judgment obtained by (he testator in his representative character. 2. The executor of an administrator does not represent the first intestate — 2 Sand. 720, note ; 2 Tidds Pr. 1118; 2 Blac. Com. 506; Dunham v. Grant, 12 Ala. 105; 7 ib. 478; 6 ib. 579; the demurrer was therefore properly sustained.

Tried before the Hon. Sidney C. Posey. The plaintiff in error executed a power of attorney, of which the following is a copy: “ Know all men by these presents, that I, Nathaniel Evans, of the county of Morgan and State of Alabama, do hereby constitute and appoint Benjamin A. Phil-pot or Thomas Price, they or either of them, my true and lawful attorney or attorneys, for me and in my name to confess judgment, at the April term 1849 of the Circuit Court of Morgan county, for…

Tried before the Hon. Jas. L. Lewis, Judge. This was a proceeding for the final settlement by the defendants in error of their administration of the estate of Owen Jenkins, deceased. At the time the order of publication was passed, James Crow was appointed guardian ad litem for the infant distributees, but it does not appear that he was notified of the appointment or ever accepted it, and on the day of the final settlement another appears to have been appointed in his stead.

The defendant in error, Samuel A. Howell, having a judgment against one. Cunningham, sued out a summons of garnishment against the plaintiff in error, as administrator of Samuel Howell, deceased. The facts will be found sufficiently set out in the opinion of the court. 1.

Tried before the Hon. Geo. D. Shortridge. This was an action of trover by the defendant against the plaintiff in error, as exjcutor of James C. Locke deceased, for the conversion by the litter in his life time, he being the sheriff of Greene county, of certain slaves, the .property of the said defendant in error. The facts are sufficiently detailed in the opinion of the court.

Tried before the Hon. J. J. Woodward. Tins was an action of assumpsit by the plaintiff against the defendant-in error to recover from him a sum of money, which the defendant, as tax collector of Benton county, had in the years 1846 and 1847, collected from him, without authority of law.

Tried before the Hon. Geo. Goldthwaite. * This was a proceeding by supersedeas to arrest and quash an execution, issued against the plaintiff in error on a bond executed by him in conformity to a judgment of condemnation rendered against him under the bastardy act. The facts on which the supersedeas was sued out and the grounds on which the motion to quash was made are sufficiently set out in the opinion for a full understanding of the poinls decided.

Tried before the Hon. Sidney C. Posey. This was an action of assumpsit by the defendant against the plaintiffs in error on a promissory note for $1120 33, dated the 21st October 1840, and payable six months after date.

Tried before the Hon. Nathan Cook; This was'an action of ejectment by the plaintiff against the defendant in error to recover .possession of the premises described in the declaration. The facts appear fully in the opinion of the court.

<p>1. A sale under execution is not void, merely because the officer sells a less interest in the property than the defendant really owns.</p>

Tried before the Hon. Lincoln Clark. This was an action of slander by the defendant against the plaintiff in error.

Tried before the Hon. Geo. W. Stone. This was an action of trespass to try titles, brought by the plaintiffs against Isham Gwyn in his life time, and after his death, revived against his heirs at law.

Tried before the Hon. E. H. Cook, Judge. The plaintiff in error sued out a summons of garnishment against the defendant in error as the debtor of one Boling Smith. The defendant answered, denying any individual indebtedness, and submitted a statement of facts for the judgment of the court.

Tried before the Hon. Adam C. Felder. Tub facts of this case will be found sufficiently set out in the opinion of the court. 1. Under the facts set forth in the record, the mother is entitled to compensation for the support of her son. — See Whipple v. Dow, 2 Mass. 415; Dawes v. Howard, 4 ib. 97. 2. The assertion in the record, that the mother was able to support her son, is a gratuitous opinion.

Tried before the Hon. J. J. Woodward. Tins was an action of detinue brought by the plaintiff against the defendant in error to recover a slave by the name of Harriett. The plaintiff on the trial, in support of his title, offered in evidence a deed of mortgage of said slave executed by one John Simmons to him on the 6th day of August 1844, to secure the payment of certain notes to him by said Simmons.

Tried before the Hon. J, J. Woodward. The plaintiffs sued the defendant in error in indebitatus as-sumpsit, and to the money counts added a count on an account stated.

Tried before the Hon. J. J. Woodward. The facts of this case are fully set out in the opinion of the court. The charges asked were properly refused — not only because they are contrary to law, but because they are abstract.

Tried before the Hon. Sam’l Chapman. The facts of this case are set forth at length in the opinion of the court. 1. The judgment of the County Court was erroneous. Upon .the verdict of the jury, the judgment should have been so as to satisfy the original judgment as to the $5190, and the court should have ordered satisfaction for that amount to be entered. 2.

1. The record and proceedings of the Orphans’ Court of the county of Montgomery, appointing the guardian, are void,, it not appearing, that the minors were residents of that county. Clay’s Dig. 226, § 27; ib. 267, § 1; McCartney, et al. v. Calhoun, et al. 11 Ala. 110; 8 Porter, 375; 2 Ala. 533. 2. There cannot be two guardians acting at the same time by appointments made in different counties.

Tried before the Hon. J; J. Woodward. This was an action of debt instituted by the defendant against the plaintiffs in error on an attachment bond.

Tried before the Hon. Geo. D. Shortridge. This was an action by the plaintiff against the defendant in error as the endorser of a promissory note made by one John W. Bishop. The plaintiff sued the maker to the first court after the note fell due, and recovered judgment against him.

Tried before the Hon. Jos. W. Lesesne, chancellor. The defendant in error filed a bill against the plaintiffs in error, and, after two of them had separately answered, dismissed it. The register in the bill of costs taxed the defendant in error with two solicitor’s fees, and the defendant thereupon moved the chancellor for a re-taxation of the costs. The chancellor granted the motion, and ordered the register to tax the defendant with but one fee.

Tried before the Hon. Geo. Goldthwaite. The plaintiff in error was indicted for the murder of Elizabeth Sheppard, and was described in the indictment as her property.

Tried before the Hon. Sam’l Chapman. 1. On questions of science, trade, &c., persons of skill, as a general rule, alone may give their opinions in evidence. 1 Greenl. Ev. § 440. 2.

<p>1. The crime of murder being divided by our penal code into two grades, with different punishments, it is necessary on the trial of an indictment for that offence, that the verdict of the jury should ascertain the degree, otherwise no judgmeut can be pronounced upon it.</p> <p>2. Where the judgment of conviction on an indictment for murder is reversed, because of the insufficiency of the verdict to support it, the prisoner may be tried again, without violating the 13th section of the 1st article of the constitution.</p>

Tried before the Hon. Thos. A. Walker. An action for deceit in a sale can only be sustained when an affirmation wilfully false, or some artifice is proved, or is to be presumed from the circumstances attending the transaction. — Emerson v. Brigham, 10 Mass. 197; Parkinson v. Lee, 2 East, 320; ib. 4-26.

Tried before the Hon. Geo. Goldthwaite. This was an action of slander by the defendant against the plaintiff in error, for charging him with the offence of perjury. Plea of justification. The proof tended to sustain the plea.

<p>1. A decree is final which settles the rights of the parties, notwithstanding a reference is ordered; and such decree cannot be altered or amended, except in matter of form or clerical misprision, unless it be done by consent, or upon a re-hearing granted, or on bill of review, or bill in the nature of a bill of review.</p> <p>2. Courts of equity in this State are courts of record; and decrees, like judgments at law, are considered matters of record, and deemed enrolled as of the term when rendered.</p> <p>3. A decree cannot embrace matters not charged in the bill, although warranted by the proof, or the admissions of tire defendant.</p>

Before the Hon. W. W. Mason, chancellor. Tiie bill in this case was filed by the testator of the defendants in error, and alleges that he recovered a judgment at the fall term 1841 of the Circuit Court of Russell against William D. Hargrove, one of the plaintiffs in error, on which execution had issued, and been returned no property; that Har-grove, about the time the judgment was rendered, conveyed certain slaves, viz. March, William, Monday, Robin, George, and Gilbert, to…

. Tried, before the Hon. Nathan. Cook.. This was air action- of assumpsit,.instituted By the defendant against the plaintiff in. error to- recover damages for the breach of warranty of a female slave.

Tried before the Hon. Jno. J. Woodward. 1. The second piea traversing the satisfaction of the judgment and execution should not have been stricken out. The object of the proceeding was to bring the parties before the court and to ascertain whether or not, the execution was satisfied, and Baker had the right to show that the plaintiff in superse-deas had not legally discharged it. 2.

Tried before the Hon. C. C. Clay, Judge. George Connelly and Catharine Lewis, the widow of the deceased, were appointed in 1832 administrator and adminis-tratrix on the estate of William Lewis. Catharine, the widow, subsequently intermarried with Cortez D. Kavanaugh, one of the plaintiffs in error.

Tried before the Hon. Geo. D. Shortridge. This was a proceeding by scire facias by the defendants against the plaintiff in error as a defaulting witness. A judgment nisi was rendered, a copy of which will be found in the opinion of the court, and the plaintiff failing to appear and show cause to the contrary, a judgment final was rendered at a succeeding term. This judgment iá now assigned as error.