Volume 17 — Alabama Reports

<p>Error to tlie Circuit Court of Choctaw. Tried before the Hon. John Bragg.</p> <p>cited the following authorities: Smith v. Lockard, 4 A. R. 288; Wentworth v.'The People, 4 Scam. 554; Stickney v. Davis, 16 Pick. 3 9; Burns v. Taylor, 3 Port. 187; Hallowell & Aug. B’k v. Howard, 14 .Mass. 181.</p>

Tried before the Hon. Adam C. Felder. This was an action of detinue by the defendants against the plaintiff in error to recover eighty-four pieces of marble, &c. It appears that the marble in question, weighing some thirty-five or forty ton's, was freighted on the steam-boat Creole from Mobile to Montgomery, and consigned to the defendant, Darling; that the defendant removed the marble from the wharf at Montgomery, where it had been taken from the boat and deposited, without…

Tried before the Hon. Thos. A- Walker. This was an action for a malicious prosecution brought by tile plaintiff against the defendants in error, one of whom is the justice of the peace who issued the warrant. The plaintiff offered in evidence the affidavit made by the defendant Freeman and the warrant, which were rejected by the court, whereupon the plaintiff excepted and took a non-suit. The ruling of the court is the error now assigned. 1.

Tried before the the Hon. Thos. A, Walker. This was an action of assumpsit by the plaintiff against the defendant in error to recover the value of a crop of com and cotton, sold and delivered, &c. The facts of the case are sufficiently set out in the opinion of the court.

Tried before •the Hon. George Goldthwaite. This was a trial of the right of property in a slave, levied -on under an execution in favor of the defendant in error against Sarah McIntosh, and claimed by the plaintiffs in error through their next friend, Edward H. Grant. The facts appear in the •opinion -of the court.

<p>Error to the Chancery Court of-Greene. Tried before the •Hon. W. 'W. Mason.</p>

<p>1. Tba person apprehending a runaway slave is entitled to the reward prescribed by the statute so soon as he carries him before a justice of the peace.</p> <p>2. In an action against the owner te recover the reward -prescribed by statute for apprehending and carrying a runaway slave before a justice, no previous demand need be proven.</p>

<p>Error to the Circuit Court of Barbour. Tried before the Hon. Sam’l Chapman.</p>

Tried before the Hon. Daniel Coleman. Trover by the defendant against the plaintiff in error for the conversion of a horse.

Tried before the Hon. David G. Ligón. The remedy of plaintiff in error is by action at law for the failure of Mardis to invest as much in the partnership as he (Reynolds) did, as it is alleged by Reynolds that this was one of the stipulations of the contract of partnership — that each partner should invest an equal amount. — Boyd v. Mynatt, 4 Ala. Rep. 79; Story on Part. 327.

Tried before the Hon. John J. Woodward. 1. The name of the obligee in the penal part of the bond being illegible, it was clearly competent to prove by parol what name was intended. — Chitty on Bills, 176-7, note k; 10 Ala. 828; Boyd v. Gilchrist, 15 Ala. S49, and authorities there cited ; Smith v. Redus and Wife, 9 Ala. 99 j 4 B. & C. 235; 2 Stark. 29. 2. But if it be conceded that parol evidence is inadmissible for that purpose, the bond is good without it.

<p>1. Where any of the distributees of an estate have died, it is error to proceed to a final settlement without bringing in their legal representatives.</p>

Tried before the Hon. Geo. W. Lane. This was an action by the plaintiff against the defendant in error on a bill of exchange drawn by the firm of F. Hodges & Co., of which the defendant was a member, on Kirkman, Abernathy & Hanna, N. Orleans. The facts and errors complained of are.sufficiently noticed in the opinion. 1. That the ruling of the Circuit Court was erroneous, and cited Cuthbert v. Newell, 7 Ala. 457; Smith v. Armstead, ib. 60S. 2.

Tried before the the Hon. S. C. Posey. This was an action by the defehflhnt hghinst the plaintiff in error on a promissory note, which bore date on Sunday. The facts appear in the opinion. 1.

<p>Error to the Circuit Court of Marengo. Tried -before the Hon. John D. Phelan.</p>

Tried before the lion. S. C. Posey. Tens was an action of assumpsit by the plaintiff against the defendants in error, as administrators of Samuel Boyd, dec’d, to recover for the services of a slave. The facts will be sufficiently understood by reference to the opinion of the court. 1. Where one employs the slave of another, the law implies a contract to pay the master for the services of the slave. — Cook v. Husted, 12 Johns. 188; Houten v. Holiday, 2 Murphy 248. 2.

This was a proceeding to try the validity of a will, purporting to be that of Nathaniel Davis, deceased, which the plaintiff in error as his executor offered for probate, and which was contested by several of the heirs of the deceased. The will gives Elizabeth Davis, the widow of the deceased, ihd who has since died, all the ready money of the deceased, which was found to-be in amount $1312, and personal property and effects of the estimated value of $1182 — in all $2494.

Tried before the Hon. W. W. Mason. This was a bill filed by the plaintiffs against thé defendants in error as administrators of Sam’l F. Clawson, dec’d, for a discovery of assets, &c. The facts are sufficiently stated in the opinion of the court. 1.

This was an action for services rendered by the plaintiff as engineer on the steamer General Sumter, against the defendant as an alleged joint owner of said boat. To sustain his case the plaintiff introduced as a witness one Massey, who testified thát he, his brother and the defendant were the joint owners of the steamer.

Tried before the Hon. Sam’l Chapman. This was an action of detinue brought by the defendant against the plaintiff in error to recover possession of a slave. Each party claimed under the will of Robert Graves, dec’d— the plaintiff below as his executor, and the defendant as administrator of Thomas Faust, deceased, the late husband of Mary Ann Graves, one of the legatees named in the will,- and into whose possession the slave in controversy came with the assent of the executor.

Tried before the Hon. W. W. Mason. 1. The agreement was made upon good consideration and \yas obligatory on the bank. The agreement of Boykin after his discharge, and his compliance with it by the payment of one third of the, sum due on the bill, and the curtailment on his note after his discharge as a banhruqjt, was a good consideration. 2. The plaintiffs, being mere accommodation, drawers and endorsers, are entitled to the, benefit of this agreement and to have it enforced.

Tried before the Hon. Sam’l Chapman. This was an action of debt instituted by the defendant against the plaintiff in error on bis bond, dated 9th August 1843, and conditioned for the conveyance to the plaintiff below of a tract of land in Kemper county, Mississippi, so soon as the obligor could obtain title to it. The declaration contained six assignments of breach.

This was a proceeding by habeas corpus, sued out at the instance of the defendants in error. The facts sufficiently appear in the opinion of the Court. — The question of freedom cannot be tried in fhis state upon a writ of habeas corpus sued out by a colored person, held in bondage or claimed as a slave. In such case the proceeding must be by petition in the mode provided by the statute. — Clay’s Dig. 462-542, § 19 ; 3 Blacks.

Clair. 1. The protection of those entitled by law to intestates’ estates, and the removal from others of temptations to frauds, forbid an over-solicitude to establish wills apposed to the dictates of nature and the feelings of an enlightened community. — Suggett v. Kitchell, 6 Yerg. 430. 2.

<p>1. It is not a good cause to strike an answer from the file, that it omits the name of one of the defendants in the title of the case, nor that it is interlined in a material part, unless it appears that the interlineation was made after the answer was sworn to, or some other irregularity intervened.</p> <p>2. When one of the allegations of a bill is that a sheriff’s bond was “never received or approved” by the County Court Judge — delivery being essential to a complete and effectual acceptance, proof of such delivery is not irrelevant to the issue tendered by the allegation.</p> <p>S. An actual delivery of a deed is not essential. A delivery good in law may be made by mere words, or by such words and actions as indicate an intention that the deed shall be considered as executed.</p> <p>4. Where the name of P., one of several intended sureties, is affixed to a bond under an authority which the other sureties have at the time an opportunity of examining, and all is done that was contemplated to render the bond effectual, in the absence of fraud, they cannot claim exemption from liability, because the authority is defective and insufficient to bind P.</p> <p>5. The power of a Judge of the County Court to accept and approve the bond of a sheriff is derived from and defined by law. The validity of his official acts, therefore, cannot be affected by his negligence or mistake in the performance of an act not within th'e scope of his official duties.</p>

Tried before the Hon. Geo. Goldthwaite. This was an action on the case by the defendant against the plaintiff in error, clerk of the County Court of Sumter.— The facts, together with the question arising on demurrer to the declaration, appear in the opinion of the court.

Tried before the Hon. Thomas A. Walker. This was an action of assumpsit brought by Walker Reynolds against James A. Hogan & Co. The declaration contains five counts, the first is indebitatus assumpsit for money had and received, for money lent, &c. The second, third, fourth and fifth counts are special and are founded on a written instrument, dated March 12th, 1838, and in the following language: “Received of Walker Reynolds, as one of the executors of William Wilson,…

Tried before the Hon. David G. Ligón. The bill in this case was filed by the plaintiff in error, as administratrix on the estate of Samuel G. Savage, deceased, against George M. Savage, the executor appointed by the will of Samuel Savage, deceased, Vincent M. Benham, the administrator da bonis non with the will annexed, and the various residuary legatees under said will.

Tried before the Hon. Dkvid G. Ligón. 1. The decree of the chancellor assumes, that the property of the testator was in the hands of the executor from the time of the probate of the will for the purpose of proving its value to he $30,000. This is manifestly wrong.

<p>1. Unless the record shows affirmatively, that a bill of exceptions found ill it was signed by the presiding judge before the adjournment of the court, or within ten days thereafter by the written consent of the counsel engaged in tiie canse, under the statute of the 20th Dec. 1844, it must be rejected as forming no part of the record.</p> <p>2. A record cannot be amended by proof of .matters dehors the record.</p>

Mobile. Tried before the Hon. Anderson Crenshaw, Chancellor.

Tried before the Hon. Geo. Goldthwaite. This was' an action of debt by the plaintiff against the defendant in error, for the wrongful and vexatious suing out of an ancillary attachment against him by one Benjamin C. Price, on whose bond the defendant was a surety.

This controversy arose on the final settlement of the estate of William D. Bunkley, deceased, of which his widow, now the wife of Pearly S. Gerald, was appointed administratrix, and of which she and Gordon Bunkley, an infant son of the deceased, were the sole distributees. The facts of the case can be understood by reference to the opinion. 1.

Before the»Hon. Thomas A. Walker. 1. There is a greater discrepancy in the sounds of the true and adopted names in this case, Edmindson or L. Edmindson for Edmundson, than in the following instances, which have been held not to be idem sonans: McCann for McCarn, (Russ. & Ry. 351); Shakepeare for Shakespeare, (10 East. 83); Tarbart for Tabart, (Bingham v. Dickie, 5 Taunt. 14): Lyons for Lynes, (5 Port. 241); Barham for Barnham, (Kirk v. Suttle, 6 Ala. 681); Crawley for…

Tried before the Hon. Samuel Chapman. Under the revenue law of 1843, (Clay’s Dig. 560, § 12,) no license is required for keeping a ten-pin alley, but the owner of any such alley Icept for flay is liable to an assessment of ten dollars, and upon his refusal to give in to the assessor the alley “ so kept foreplay,” the same is liable to be attached and sold by that officer for the payment of the tax.

Tried before the Hon. John J. Woodward. 1. The last two counts of the declaration are defective in this, that it is not alleged that the words spoken by Griffin were spoken in the hearing of the bidders, or that they were spoken with malice. — Hill v. Ward, 13 Ala. Rep. 310. 2. Commissioners appointed to take the testimony of a witness in another State are quasi officers of the court, and are invested with power to administer the necessary oath.

Tried before the Hon. John D. Phelan. Títk indictment in this case alleges that Henry Ha,m, the plaintiff in error, on the first day of January Í347, “a slave Fuller, of the value of seven hundred dollars, of the goods and chattels of one Mordecai Delashmert, then and there being found, then and there feloniously did steal, take and carry away,” &c. The evidence tended to show that the slave was stolen by Ham and another in the State of Mississippi, and brought by them to…

' Error to the Circuit Court of Limestone. Tried before the Hon. Samuel Chapman. 1. There is nothing upon the face of the indictment, showing that the owner of Pleasant and the party murdered, although bearing the same names, were one and the same person. S. The words in the indictment, “ late of,” prefixed to the naine of the owner, William Copeland, used as they are, mean nothing and must be regarded as surplusage.

<p>1. A juror, whose sole property in slaves consists of an undistributed share in an estate composed of slaves, is not a slaveholder within the contemplation of the statute, and is incompetent to sit as such on the trial of a slave for a capital offence.</p> <p>2. On the trial of a slave for a capital offence, the master is a competent witness for him.</p> <p>3. Where it is shown that a slave was arrested, tied, and left by his master in charge of a third person, to whom he immediately after made a confession, proof that the master “had always been in the habit of tying his slaves, when they were charged wi h any matter, and whipping them till they confessed the truth, and that he had frequently treated the prisoner in the same way,” is competent, and should be considered by the court in determining whether the confession was induced by the influence of hope or fear.</p>

Tried before the • Hon. Sam’l Chapman. Action of covenant for .breach of warranty instituted by defendant against plainlifF in error. The facts appear in the opinion of the court. 1.

Tried before the Hon. David G. Ligón. The deed relied on by defendants as a bar to the relief sought, does not include or embrace any right or interest of Mrs. Hamilton, but embraces only the distributive portions of Hamilton, Watts and McAdams in the estates of James and William Clements.

Tried before the Hon. S. C. Posey. The defendant in error sued the plaintiff in error on an instrument in the following words: “I have employed George W. Paschal to collect by suit or as he best can two accounts due me — one for two thousand and eighty-six dollars and sixteen cents on John Dillard, and the other for seven hundred and forty-six dollars against said Dillard and James Harrison and the late Samuel Mackay, deceased, and I bind myself, my heirs, executors and…

Tried before the Hon. John J. Woodward. 1. The court erred in excluding the evidence about the invoice, or rather the value of the goods, as deposed to by the witness, merely refering to the invoice as a circumstance which fixed in his mind the value of the goods. This was a fact within the knowledge of the witness, and was not proving the contents of a written instrument by parol. 2.

1. The death of the legatee for life, before the death of the testator, does not defeat the remainder, but in such case the remainder vests immediately upon the death of the testator. — 2 Williams on Ex’rs, 764, notes u and v; 2 Lomax Ex’rs, 50, see notes g and h; Chatteris v. Young, 6 Maddox, (bottom page,) 30; Hardwick v. Thurston, 4 Russ. Ch. 380; 3 Cond. Ch. 716. 2.

Tried before the Hon. John J. Woodward. This was an action of detinue instituted by the plaintiff against the defendant in error to recover two slaves, which he claimed by virtue of a parol gift from his uncle, Garland Dawkins.

Tried before the Hon. Geo. D. Shortridge. The only question involved in tíre demurrer is, does the summary remedy given by statute of 1819 lie against coroners when acting as sheriffs? This question is resolved by an examination of the statutes. The act of 1819 (Clay’s Dig. 205-6, 21-2) declares the penalty and mode of its recovery against the sheriff.

Assumpsit on a promissory note payable in bank, made by William Castlevs in favor of the defendant in error, by him en-dorsed to one Turner, and by said Turner to the plaintiffs.

Tried before the Hon. Jobo J. Woodward. The statute is intended to provide a substitute for demand and notice as required by the law merchant, and what would have excused the want of demand aud notice.or either at common law will excuse the failure to bring suit to the first court, under the statute. — Pearson v. Mitchell, 2 Ala. 736; Bishop and Bradford, 14 ib. 517; S. C. 16 ib. 769. Tested by these principles, the second count was sufficient. — Chitty on Bills, 581-2.

Tried before the Hon. Geo. Goldthwaite. This was a trial of the right of property in a slave levied on under an execution in favor of the defendant in error against one William Moore, and claimed by the plaintiff in.error. The mother of the slave was given by her father to Mrs. Moore, his daughter, and then die wife of said William Moore, but who is now deceased, by deed, the material parts of which are recited in the opinion of the court.

Tried before the Hon. John Bragg. The facts of this case may be thus stated,: The Mayor, Aldermen and Common Council of Mobile, being entitled to certain water privileges under and by virtue of an act of the Legislature, on the 20th day of December 1S40 granted to the plaintiff in error the sole right to supply the city of Mobile with water, at certain prescribed rates of compensation, from the Three Mile Creek, for twenty years, and covenanted to him the quiet enjoyment of…

Tried before the Hon. Geo. Goldthwaite. This was an action of detinue by the defendant against the plaintiff in error for a slave. On the trial the plaintiff proved that the slave was once .owned by Robert Oliver, deceased, and was allotted to Jefferson W. Oliver, one of the distributees, on a division of thé estate, by whom he was sold to the plaintiff.

Tried before the Hon. David G. Ligón. The bill in this case was filed by John Hardin, the plaintiff, against his wife, Susan Hardin, the defendant in error, for a divorce, on the ground of three years’ voluntary abandonment. The chancellor dismissed the bill on final hearing, which is how assigned as error. 1.

<p>1, After a decree pro confesso, the party in contempt is not entitled to notice of che filing of interrogatories, nor is it necessary that they should remain on file ten days prior to the issuance of a commission.</p>

Tried before the Hon. David G. Ligón, Chancellor. The answer of a corporation under its seal, when it negatives the bill, warrants the-dissolution of an injunction. — Hogan v. Br. Bank at Decatur, 10 Ala. Rep. 485.

Tried before the Hon. John D. Phelan. 1. The plea of set-off’ was good, within the principle decided in Bowen v. Snell, 9 Ala. 4S1. That case establishes that you may aver that a stranger to the record is the owner of the note, and then plead an off-set against him. • That is the principle involved in this cause.

Tried before the Hon. Anderson Crenshaw. The object of this bill, which was filed by the plaintiffs against the defendants in error, was to obtain security for the forthcoming of certain slaves in the possession of the defendants, in which the plaintiffs claim the remainder after the death of their mother, Mary Jane Lyde, by virtue of two deeds of gift executed by their grandfather, Alex’r Lamb.

Tried before the Hon. Thomas A. Walker. The defend- . ants below filed three or four pleas. To two there were demurrers. These demurrers were not acted on by the court. The judgment entry recites that the parties came by their attornies, and also that a jury was empanelled. The entry further recites that the jury was sworn to ascertain and assess the plaintiff’s damages, when the jury should have been sworn to try the issues between the parties.

Tried before the Hon. John D. Phelan. Trial of the right of property in a slave, levied on under an execution in favor of the plaintiff against James G. Carroll, and claimed by the defendant in error.

John D. Phelan. 1. By demurring to the declaration the defendant, denied that It was bis duty on the rendition of the decrees to take the vessel into] his possession, but admits thereby the fact that as marshal he did so. Here then is an admission that the taking was by color of office. 2.

The deceased owning lands and debts in the county where the will was propounded, which lands were devised in the will, gave the court jurisdiction. — Hyman v. Gaskins, 5 Iredell, 267; Treadwell v. Rainey, 9 Ala. 590; Clay’s Digest, 21-22-33, 300-301-303 p lb. § 10-12, 598; lb. § 21, 300; lb. § 22, SOIlb. $ 33, 303; lb. § 12, 598; Rice v. Jones, 4 Call. 89;. Jarman on Wills, 45; Dezezbats v. Burquiers, 1 Binny, 336.

Tried before the Hon. Thomas A. Walker. This was a proceeding by sci.fa. to revive a suit against the defendant in error as administrator de bonis non of Thomas W. Scott.

Tried before the Hon. Anderson Crenshaw. The defendants filed a bill against the plaintiffs in error, as the heirs and personal representatives of William Springle, deceased, in which they state, that in January 1834, said Springle executed a bond for title to John Shields for certain lands which he sold him at the price of $1500, and for which Shields gave him his two notes for the respective sums of $1200 and $300, payable on the 1st November thereafter, at which time it…

Tried before the Hon. David G. Ligón. The facts of this case, so far as they are necessary to elucidate the opinion, are briefly these: David Calhoun, the father of the defendants in error, died in 1826, in Franklin county, Georgia, possessed of the slaves in controversy and other property, and Matilda Calhoun, his widow, who afrerwards intermarried with William King, together with the said William, adjninislered on his estate, and took the property into their possession.

Tried before the Hon. Geo. Goldthwaite.' The facts are stated in the opinion of the court. The Circuit judge instructed the jury that the plaintiff was entitled to recover on the note, to which the defendant excepted and now assigns it as error.

Tried before the Hon. W. W. Mason. 1. The defendant is chargeable with interest on the. remaining portion of the capital stock created by the trust fund, and also with simple if not compound interest on the dividends which he has received, from the date of their reception. — Clark-son v. Depeyster, 1 Hop. Ch. 424; Garness et al. v. Gardner’s Adm’r, 1 Edw. Ch. 123; Myers v. Myers, 2 McCord’s Ch. 266; Peyton v. Smith, 2 Dev. & Batt.

<p>1. A final judgment in favor of a defendant in attachment, unless superseded by writ of error or appeal, discharges the lien of the attachment, and if the sheriff, having sold and retained in his hands the proceeds of the goods attached, afterwards and without notice pays them over to the defendant, he is not liable, notwithstanding the plaintiff may subsequently sue out a writ of error, procure a,reversal of the judgment, and ultimately obtain a judgment iu his favor.</p>

Tried before the Hon. SanTi Chapman. This was a trial of the right of property in a crop of cor» and cotton, levied on under an attachment for rent sued out by Elizabeth Hadden, the testatrix of the plaintiffs in error, against one Samuel Lewis, and claimed by Powell, the defendant m error. The facts appear in the opinion. 1. The facts clearly show that neither party considered any thing else necessary to a perfection of the contract.

Tried before the Hon. Geo. D. Shortridgc. This was an action of debt o-n a title bond by the defendant against the plaintiffs in error. The bond was executed by one' James Martin and Barah Martin, the latter being now the wife of Malalcel Johnso-n, her co-plaintifF in error, and is conditioned to make title in a reasonable time to a tract of laud hi Marengo county.

It is insisted that under our statute wherever the child will by law be deemed a bastard, the mother may make the complaint. The 6 Geo. 2, c. 31, to-be found on page 99, 2d vol. (new edit.) of Bacon’s Abridgment, uses the precise language of our statute: “Any single woman,” &c. Under that statute the English Courts have dccided that a married woman may make the statutory complaint. — King v. Luffe, 8 East. 193.

Tried before the Pión. John I). Phelan. This was an action of detinue for a slave, instituted by the-plaintiff against the defendant in error. The plaintiff claimed the slave in controversy under a deed of gift from his father, who was the son-in-law of Zachary Merriwether, deceased, and whose claim of title vested in an alleged parol gift by the said Zachary to his daughter.

Tried before the Hon. John D. Phelan. 1. In no case is the husband entitled of right to administration upon the estate of his wife, on the mere ground that he is husband. He is not the “next of kin” of his deceased wife. Clay’s Dig. 220, § 1; Leakey v. Maupin, Í0 Missouri, 368. 3.

Tried before the Hon. John D. Phelan. In this case we rely on .the following authorities to reverse the judgment. — Lacy, Terrell &Co. v. Rockett, 11 Ala. 1002; Gary v. Bates et al. 12 Ala. 544; Rives v. Garner, ib. 661; 15 ib. 540.

Tried before the Hon. Geo. Goldthwaite. This was an action of trespass to try title to certain parcels of land in Marshall county, and was instituted by the defendant against the plaintiffs in error, who are the heirs at law of Margaret Roden, dec’d. By a bill of exceptions found in the record, it appears that the plaintiff below introduced in evidence patents from the United States to him for the lands in controversy, dated in 1833, and a deed for the same from- Septimus B.…

Tried before the Hon. John Bragg. Certain slaves were levied on by the sheriff of Mobile county under an execution in favor of George Bancroft, the intestate of the defendant in error, against Phillips Gayle, William Bower and Duke Goodman, to which a claim was interposed by Richard W. Gayle and bond given by A. J. Gayle, John Gayle and Daniel M. Riggs.

Tried before the Hon. John D. Phelan. 1. The record in this cause shows that the evidence of Connolly was not reduced to writing by the committing magistrate, as the statute requires. — Digest, 449-50, §§ 25, 27, 33. And to render evidence taken before an.examining court admissible “ it must appear that the requisitions of the statute have been complied with, otherwise the proceedings would be extra-judicial.” — Roscoe’s Grim.

‘ Error to the Circuit Court of Fayette. Tried before the Hon. Geo. Goldthwaite. In this case the defendant sued in the court below and declared on her own title, as an individual. The evidence introduced by her, on the trial, shows that in that character she had no title whatever — that the only title she had,-if any, was held-by her as administratrix. .The proof, therefore, did not sustain the declaration, and so the court should have charged the jury.

Tried before the Hon. George Goldthwaite. This was an action of trover instituted by the defendants against the plaintiff in error to recover the value of fourteen bales of cotton, which he as sheriff of Sumter had levied on and sold by virtue of an attachment against Samuel H, Weir, in favor of one Duke.

Tried before the Hon. Geo. Goldthwaite. cited Clarke v. The State, 12 Ala. 492. 1. There was no error in the refusal of the court to charge “that a public place was a place where the public'had a right to go.” There are two kinds of public places — one public in itself, and the other made so by an assemblage d'f persons.

Tried before the Hon. Geo. W. Stone. This was an action of assumpsit by the plaintiff against the defendant in error, as administrator of George Pylant, on a promissory note made by the said Pylant in favor of one William B. Johnson, and by him endorsed to the plaintiff. The note bears date the 4th January 1S42, and the suit was commenced on the 6th June 1845.

Tried before the Hon. Sam’l Chapman. 1. It is insisted that the court erred in admitting the proof of Murphey’s declarations. In Bliss v. Winston, 1 Ala. 344, and in Oden v. Stubblefield, 4 Ala. 40, this court held that it was permissible to prove the declarations of a party in possession as to the title under which he held such possession, that is, whether lie held in his own right or in right of another.

Tried before the Hon. Thomas A. Walker. Assumpsit by the defendant against the plaintiffs in error on a promissory note for one hundred and sixty-eight dollars, made by them to him for the hire of two slaves, dated the 23d January 1847, and payable the 25th January 1848.

Tried before the Hon. N. Cook. This was au action of trover brought by'the plaintiff in error against the defendant for the conversion of about seven hundred bushels of corn.

Tried before the Hon. John J. Woodward. This was an action of assumpsit, originating in a justice’s court, and was instituted by the defendant against the plaintiff in error to recover for work and labor done as a ditcher. The plaintiff below swore that he cut for the defendant some time in the winter of 1S45-6, a ditch seventeen hundred and twenty yards long for which he was to have five cents per yard ; that the work amounted to $86, of which defendant paid him $40.

<p>1. The value of an orchard is to he estimated with reference to what in its growing state it is worth to the premises.</p> <p>2. Growing fruit trees and fences enclosing a field are fixtures, and as such belong to the freehold.</p> <p>3. In an action of trespass quare clausum fregit, exemplary damages may be given, where the tortious act is attended with circumstances of aggravation.</p>

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

Tried before the Hon. Arthur Foster, Judge. On the final settlement of the estate of Robert Walker, deceased, by Moses P. Walker, his executor, the plaintiffs in error, who are still minors, claiming under the tenth and thirteenth clauses of the will, moved the Orphans’ Court for a decree that the legacies bequeathed to them respectively be paid by said executor, which motion the court refused.

The judgment by default was allowed when Campbell has not been brought into court. A defendant in attachment can only be brought into court by a levy upon Ids property. Here the property levied upon, before judgment in the attachment case, was claimed by affidavit, the mode prescribed to make a claim.

Tried before the Hon. Sydney C. Posey. The plaintiffs in error sued out a supersedeas to restrain and have entry satisfaction of an execution issued on a judgment against them in favor of the defendant. The case was tried by a jury who found that the principal of the judgment, with the costs, had been paid, but that the interest accruing on the judgment since its rendition was still due.

<p>Error to the Circuit Court of Tallapoosa. Tried before the Hon. John J. Woodward.</p>

Tried before the Hon. Nath. Cook. 1. The measure of damages is generally the actual injury which the plaintiff in the particular case has sustained, and all the facts and circumstances which tend to show this actual injury are admissible evidence. — Sedgwick, 28-29-30. 2. No certain or positive rule can be laid down as to what facts or circumstances can be given in evidence. — See Johnson v. The State, at the present term. They must depend upon each particular case.

This was an action of ejectment brought by the plaintiff against the defendant in error to recover possession of a tract of land in Dale county, and was submitted to the judgment of the court below on the following agreed state of facts: One John McKinney, being seized in fee of the land in controversy, sold it in 1839 to Amos Dubose, to whom he executed a bond conditioned to make tide on payment of the purchase money.

Tried before the Hon. John D. Phelan. 1. The charge of the court below as to the ownership of the property alleged to have been stolen, was erroneous. The facts show that the buggy did not belong to Hinton. The written evidence of the settlement should have been produced. 2. The written evidence of Connolly should have been produced, or its absence satisfactorily accounted for.

Tried before the Hon. David G. Ligón. The bill, which was filed by the plaintiffs against the defendants in error, alleges that Elizabeth Felder is the daughter of Bud Davis, deceased, and the wife of B. B. Felder, one of the defendants,'and that the other complainants are the children of the said Elizabeth and B. B. Felder; that in 1837 the said Bud Davis by deed of gift conveyed negro slaves Sam, Jack, Ansey, Cinda, Harry, Edy, Katy, and Jackson, to one James Davis,…

Tried, before-the Hon. Sam-uel Chapman. This was an- action on the case by the plaintiff against- the-defendant in error, for his failure as deputy sheriff of Montgomery county to require sufficient security on a replevy bond taken, by him as such deputy for certain goods which he had levied* on' under an attachment in favor of the plaintiff, against one Charles G. Mitchell. The declaration contained two counts, to each of which there was a demurrer.

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

Tried befare the Hon.'John Bragg. Ti-iis was a case of unlawful detained originally commenced by Eslava and others against Rood, before a justice of the peace in Mobile county. Judgment was rendered by the justice in favor of Eslava. Rood then took the case by certiorari to the County Court of Mobile. That court reversed the judgment of the justice of the peace, and from that judgment of reversal Eslava sued out a writ of error to the Supreme Court.

Tried before the Hon. Thos. A. Walker. I.The mode of drawing the jury, for the trial of capital cases, as pointed, out in the 54th section, 10th ch. Penal Code, is merely directory.; — The State v. Brook, 9 Ala. 17. 1. The counsel for defendant objected to the name of Reeves (one of the jurors summoned to try the case, and which was lost from the hat) being returned to the hat, and the objection was sustained.

Tried before the Hon. Sydney C. Posey. The plaintiffs in error were indicted for a conspiracy to commit a burglary by breaking and entering the store house of one Nathaniel B. Sturdevant with intent to steal, &c. the goods of the said Sturdevant. The accused filed two pleas to the indictment, which were demurred to and the demurrer sustained. These pleas are sufficiently recited in the opinion of the court.

<p>Error to the Circuit Court of Barbour. Tried before the Hon. Thos. A. Walker. .</p>

Tried before the Hon. Nath. Cook. 1. It is an established and inflexible rule of evidence that the testimony offered 'must tend to support the issue, otherwise it will be rejected. — Rasco & Brandy v. Willis, 5 Ala. 38; 1 Stark. Ev. 949. 2.

• The service of garnishment merely creates a lien on the fund attached for the benefit of the creditor, between whom and the garnishee, if the fund be liable, the relation of trustee and cestui que trust immediately springs up by operation of law. In the older States, at least in parts of New England, the garnishee is technically styled trustee after judgment, and the process is known as trustee process.

The authority of an administrator do bonis non embraces only siich of the personalty of the first decedent as remains in specie unaltered or unconverted by his predecessor. — Chamberlain, adm’r, v. Bates, 2 Porter, 550. 2. An administrator do bonis non cannot be allowed credits for payment of debts contracted by the administrator in chief, unless he shows that such debts were justly chargeable to the estate. — Hearin, adm’r, v. Savage, adm’r, 16 Ala, 286.

Tried before the lion. David G. Ligou. The bill in this case was filed by the defendant against the plaintiff in error, who was her husband,, for a divorce, on tlie grounds of abandonment and adultery, and for alimony.

Tried before the Hon. John D. Phelan. This was an action on the case by the plaintiff against the defendant in error to recover damages for the default of the latter, as deputy clerk of the County Court of Greene, in taking insufficient security on a writ of error bond in a case in which one Cawthorne was plaintiff and one Pearson defendant, in consequence of which the plaintiff in error, who was the principal clerk of said court, was sued by said Cawthorne and compelled to…

Tried before the Hon. Nathan Cook. 1. The statute exempts from levy and sale “tools and implements of trade” belonging to heads of families. — Digest, 2.10, § 47. 2. What are “ tools or implements of trade,” can never be- ' come a pure question of law, but is a question of fact for the jury, under the charge of the court. This court cannot presume. that the printing press, &c. were tools or implements of trade.

This was a proceeding in the Orphans’ Court of Dallas, at the instance of the defendant against the plaintiff in error, who was his guardian, and who had removed' from the State, to compel a settlement of his guardianship. The plaintiff in error having failed to appear in obedience to the notice given by publication, the court proceeded to state an account and to render a final decree against him at the same term.

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

cited Crayton v. Clark, 11 Ala. 7S7; Moore v. Jones, 13 ib. 296. 1. Part of the debt being attached in the defendant’s hands, he shall be protected against a second recovery as to so much, while the proceedings, though erroneous, remain unreversed.— T ubb v. Manning, — Ala. Rep. 129; Palmer v. Ballard, 3 Stew. 32G. 2. The answer of a garnishee is to be taken as strictly true &c. unless the,answer be traversed. — Robinson v. Rapelye and Smith, 2 Stew. 86.

Tried before the Hon. J. W. Lesesne. 1. The bill is filed to redeem real estate sold under execution, and the decree was for the complainant. The answer contains a demurrer, but the bill ,is believed to contain all the needful allegations; and by the second proviso, (see Clay’s Digest, 503, § 5,) Jordan, who was plaintiff in execution under which the land sold, has the right to redeem.

Tried before the Hon. Thos. A. Walker. This was a trial of the right of property in several slaves, to-wit, a woman by the name of Sarah and her children, levied, upon on the 16th April 1849, under an execution in favor of the plaintiff in error against John B. Taylor, and claimed by the defendant in error.

Tried before the Hon. Henry M. Elmore. Motion by defendant as treasurer of Macon county against Boring, tax collector of said county, and seven out of eight of his securities, for his failure to collect and pay over the taxes of 1847.

Tried before the Mon. John J. Woodward. The plaintiff in error filed his petition in the Circuit Court of Tallapoosa, praying a mandamus against the commissioners’ court of reads and revenue of Tallapoosa county, to compel them to levy, collect and appropriate a sum sufficient to pay a debt, contracted by the plaintiff as a commissioner, in building a court-house and jail for the county.

Tried before the Hon. Geo. W, Stone. This was an action of ejectment instituted by the defendant against the plaintiff' in error to recover the possession of a parcel of land in the county of Lowndes. The facts are sufficiently stated in the opinion of the court. 1.

Tried before the • Hon. Nathan Cook. This was an action for a malicious prosecution and was instituted by the defendant against the plaintiff’ in error. The declaration, which is fully set forth in the opinion of the court, was demurred to, but the demurrer was overruled.

Tried before the Hon. Wiley W. Mason. The bill in this case, which was filed by the defendant in error, discloses the following state of facts : On the 4th day of April 1845, an agreement was entered into between George Stone and Micajah Young, by which Stone sold and delivered to Young a stock of goods, two wagons, and four horses, at the price of SIS,134 66, upon the following terms, viz: If Young -should desire to-do so, he had the privilege-of rescinding the ■contract…

Tried before the Hon. Wilie W. Mason. The bill in this case, which was filed by the plaintiff against the defendants in error, alleges that Warren Stone, desiring to secure certain slaves and their increase for the support and maintenance of his daughter, Martha G. Hamilton, then the wife of John M. Hamilton, who was an improvident man, on the 21st of March 1837, employed H. W. Hilliard, Escp, an , attorney at law, to draft a deed to the complainant for the said slaves, to…

Geo. W. Stone. This was an action of debt by .the plaintiff in error against the defendants in error on the official bond of William J. Campbell, late sheriff of Coosa county, to recover the amount due on an execution in favor of David Wheeler against one Jeremiah M. Friou, which execution was placed in the hands of said Campbell on the 1st day of October 1840, returnable to the spring term 1S41, of the Circuit Court of said county, and upon which it is suggested that…

Wilie W. Mason. An injunction will be granted to secure to a party’ the enjoyment of a privilege confered by statute, of which he is in the-actual possession, and where his legal title is not put in doubt. Croton Turnpike Co. v. Ryder, 1 Johns. Ch. 611.

<p>1. A certificate, which omits to show the time at which the -writ of error issued and the term to which it is returnable, is /Sufficient to authorise •, an affirmance of the judgment. '</p> <p>2. If a writ of error he not returned to the term to which it issued, but is abandoned, by the party afterwards suing out a new one returnable t'o a subsequent term, it becomes a nullity, and a certificate issued on it, pending the second writ, will not authorise an affirmance of the judgment.</p> <p>Note b.y Reporter. — On. a subsequent day of lbs team» the motion for an affirmance was renewed on production, of the-, proper certificate, which was resisted, and the following opinion, was delivered.</p>

Tried before the Hon. John J. Woodward. The plaintiff in error was indicted for the murder of one William E. Hammond. The evidence, so far as it is necessary to a proper understanding of the questions raised by the assignments of error, was substantially this: The accused and‘ the deceased married sisters.

Tried before the Hon. John J. Woodward. This was a trial of the right of property in a slave named Jenny, and her two children, which had been levied on under an execution in favor of the defendant in error against. Athanasius Thomas and William Thomas and claimed by Mary Thomas, the plaintiff in error.

Tried before the Hon. Wilie W. Mason. The facts of this case are as follows: In 1833, Rhesa Bostick, a citizen of Burke county, in the State of Georgia, by his last will and testament devised and bequeathed to George S. Morris certain lands in said county and State, together with a number of slaves, on the special trust, “that he, the said George S. Morris, his heirs, exeoutors or administrators, do and shall use and employ the said 'land and negroes in agriculture, or in…

Tried before the Hon. John J. Woodward. 1. Dying declarations must be confined to “ the circumstances of the death” and must not consist of mere matters of belief. A witness cannot give his belief. — 2 Barn. & Ores. 008; 2 Phil. Ev.; McLane v. The State, 16 Ala. 674. 2. The evidence of the supposed previous attempt to poison the wife, by something called laudanum, was improperly admitted. — Morris v. The State, 8 Smedes & Marsh. 772; Dow-ling v. The State, 54b. 686. 3.

Tried before the Hon. Geo. D. Shortridge. This case commenced in a justice’s court by the defendant against the plaintiff in error, to recover fifty dollars for work and labor done by him as an artist in painting a landscape for the plaintiff. The justice rendered a judgment for fifty dollars and costs against the plaintiff in error, and from that judgment he appealed to the Circuit Court.

Tried before the Hon. David G. Ligón. The bill in this case was filed by Gabriel E. Moore and Benjamin T. Moore, the plaintiffs in error, against Gabriel Moore, James Penn, the Branch Bank of the State of Alabama at Huntsville, Clement C. Clay, and James W. McClung.

<p>Error to the Circuit Court of Benton. Tried before the HonThos. A. Walker.</p>

Tried before the Hon. John J. Woodward. This was an action of assumpsit by the defendants against the plaintiff in error to recover for goods sold and delivered to the firm of D. Dickson & Co., which firm they allege was composed of Josiah Dickson, the defendant below, and David Dickson.

Tried before the lion. Nathan Cook. I. The lex loci determines the nature and validity, obligation and legal effect of the contract, and furnishes the rule of construction and interpretation. — Story’s Confl. of Laws, §§275-6; Carnegie v. Morrison, 2 Mete. 381-397; Bulger v. Porcher, 11 Pickering, 36; Blanchard v. Russel, 13 Mass. 1-4; Pitkin v, Thomason, 13 Pickering, 64; Sbelford on Mar. & Divorce, L. Lib. vol. 33, p. 115; Trimly v. Vignier, 1 Bingham, 151 — see* also,…

<p>1. An execution issued on a decree of the Orphans’ Court, which is not made returnable'to a regular term of the County Court, is void and should he quashed on motion.</p>

Tried before the Hon. John D. Phelan. This was an action of assumpsit by the defendants against the plaintiffs in error to recover the amount due on a promissory note, dated 1st March 1S45, at nine months .after date, and payable at the office of Rhea, Sykes & Co., Mobile. It appears by the bill of exceptions that the note was protested at maturity for non-payment and returned to the payees in New York, who remitted it to Messrs.

Tried before the Hon. Thos. A. Walker. The plaintiff, as administrator de bonis non of George Swink, deceased, brought an action of detinue against the defendant in error, to recover certain slaves. On the trial it appeared that the slaves belonged to the intestate at the time of bis death.

'Tried before the Hon. Geo. I). Shortridge. This was an action of trespass instituted by the plaintiff against the defendants in error to recover damages for forcibly taking and carrying away certain goods and chattels, which he alleged were his property.

Tried before the lion. John D. Phelan. This was an action of trespass vi et armis instituted by the defendant in error against Rial H. Watkins, James Watkins and others. Pleas, not guilty, and justification.

Tried before the Hon. Wilie W. Mason. This was a bill filed by the plaintiffs in error as administrators on the estate of William C. Wood, deceased.

Tried before the Hon. Wilie W. Mason. The bill in this case was filed by the plaintiff against the defendants error to enjoin ajudgment at law, rendered against him in the Circuit Court of Tuskaloosa, as the endorser of a bill of exchange drawn by one Brown. The facts are sufficiently noticed in the opinion. 1.

Tried before the Hon. Joseph W. Lesesne. The bill in this case, which was filed by the plaintiff in error against the administrator and heirs at law of Nathaniel Maynard, deceased, alleges that the complainant intermarried with the said Nathaniel Maynard, deceased, on the Hth of August 1847, and was possessed at the time of certain personal property, which is named in the bill; that the administrator since the death of her late husband has taken said property into his…

Tried before the Hon. David G. Ligón. This bill was filed by the defendant in error against Richard D. Rowland, Embargo C. Lane, and the personal representative and heirs at law of Benjamin Hollingsworth, deceased, for the purpose of subjecting a lot of land in the town of Jacksonville to the payment of the purchase money.

<p>1. In a suit against a third person by the grantee in a deed of trust to recover the property conveyed, it is not necessary to prove the consideration of the deed, until the defendant bas shown that he claims as a purchaser from or creditor of the grantor.</p> <p>2. Where it becomes necessary to prove the consideration of a note, the most regular mode of proceeding is to introduce the note in evidence Í first, and then go on to show its consideration. *.</p> <p>3. Until the creditor shows a judgment or execution, he is not in atfeondition to question the validity of a deed of trust executed by the grantor. '</p> <p>4. In a contest between the trustee in a deed of trust and a creditor of the grantor, the introduction of evidence by the latter, tending to show the consideration of the deed, will not authorise the court to charge the jury, that it is unnecessary for the trustee to prove the consideration. The effect of such a charge is to place the burden of proof on the wrong party, and thus to mislead the jury.</p> <p>5. If a security in good faith assumes the payment of the debt, on which he is liable, it is a valid consideration for a deed of trust executed to him by his principal.</p> <p>6. The validity of a deed of trust is not affected by the fact that one of the items, of which the debt secured is composed, consisted of usurious interest, which the creditor had in good faith been compelled to pay to a third person, for the purpose of replacing money, that the grantor had borrowed from him and failed to return.</p> <p>7. If a deed of trust is intentionally made to secure to the creditor a larger amount than is justly due to him, it renders the deed void, but a miscalculation, mistake, or unintentional error will not vitiate it.</p>

Tried before the Hon. John D. Phelan. This was au action on the case by the defendants against the plaintiff in error to recover damages for the wrongful and vexatious suing out of an ancillary attachment.

Tried before the Hon. Samuel Chapman. This was an action of detinue, instituted on the 31st December 1S44, by the defendant in error, as the administrator of Susan R. Cough, deceased, against the plaintiff in error, to recover a certain slave named in the pleadings. The declaration contains’ two counts.

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

Tried before the lion. John Bragg. The facts are sufficiently stated in the opinion of the court to render it intelligible. No omission or irregularity in the proceedings in the Circuit Court can be supplied by intendment. — Brown v. Wheeler, 3 Ala. 287; 8 Port. 360; Allums et al. v. Hanley, 8 Ala. 586; 15 ib. 81; 14 ib. 573. The first introduction of the cause into the Circuit Court was the rendition of the judgment.

Tried before the Hon. Geo. Goldthwaite. The facts of this case appear sufficiently in the opinion of the court. cited and relied on the following authorities for a reversal of the judgment: Brewer v. Strong’s Ex’rs., 10 Ala. 961; Scott v. Baber, 13 Ala, 182; Paysant v. Ware & Barriüger, 1 Ala. 161. 1. The objection does not go the sufficiency of the proof to authorise the paper to be read to the jury, but, only to the mode of proving it.

Tried before the Hon.. John D. Phelan. David E. Davis brought his action of trespass to try titles against Samuel H. Cox, in the Circuit Court of Bibb county, on the 20th day of March 1S4S. The lands sued for are lot number 1, in the town of Maplesville, in section 12, township 21, range 12, and also an adjoining lot, in range 13, in the south-west quarter of section 7, township 21 and range 13,' on the north side of the Tuskaloosa and Montgomery road,' and-immediately east…

Tried before the Hon. Wilie W. Mason. Appeal from an order dissolving the injunction.

Tried before die Hon. Wilie W. Mason. 1. The estate of the wards being undivided, and the decree of tbe chancellor being that the entire estate should remain in the hands of the guardian, undivided, and to be distributed as they came of age, or married, there was no such interest in the female ward as could vest in the husband by the marriage.— Until the distribution, it was a mere chose in action.

the-Circuit Court of Chambers.. Tried before,-the-Hon. John J. Woodward., This was an action of.assumpsit brought by the, plaintiff against the.deferjdan.tin error-to recoverthe value of one seventh part of a crop of cotlon, corn, fodder and, oats, made on,the plantation of the defendant in- the year 1844, under a contract with the plaintiffs intestate, by which defendant agreed to.furnish the said intestate with a certain, number of hands and, to give, him one seventh part…

<p>Error to the Chancery. Court of Cherokee.. Tried: before the:., Hon.,Wilie W.- Mason.</p>

’ Error to the Circuit Court of Chambers. Tried before the Hon. John J. Woodward. This was an action of detinue, instituted by the plaintiff against the defendant in error, to _ recover four slaves.

Tried before the Hon. Samuel Chapman. 1. This court has repeatedly decided that in actions of ejectment or trespass to try titles, it will not notice merely equitable interests; nor will it suffer the interposition of them to prevent the transmission of the legal title in the usual and well known legal methods.

Tried before the Hon. John Bragg. This was a proceeding by notice at the instance of the dedefendant against the plaintiff in error.

Tried before the Hon. John Bragg. This was a proceeding by notice to recover of the plaintiffs in error the amount due on a bill of exchange… Held: when the case was last in this court, (14 Ala. .Rep.) that this-was a legal transaction, and that it was not the exercise of the banking pow’er of “discounting.” If it were necessary to sustain this decision of the court, the authorities may be found inHallowell Bank v. Hamlin, 14 Mass. 178; Fleckner y. U. S.Bank, S Wheat. 355;…

Tried before the Hon. S. C. Posey. Immediately upon the probate of this will, the legal title to the land sued for vested in the legatee. The contract made by him with the heirs of the testator did not divest him of this title. The utmost effect that can be given to it is, that it gave the others equitable titles to certain undivided portions of the land. • This left the legal title still in him.

Tried before the Hon. Geo. W. Stone. I. The court below erred in the rejection of the evidence offered.

Tried before the Ilon. John J. Woodward. The defendant brought his action against the plaintiff in error to recover damages for overflowing his mill. The mill stands on the west side of the Cbattahoocbie river above low water, but below high water mark, and is supplied with water by means of a dam that runs in a north-east direction into the river, and which dam diverts a portion of the water to the mill.

Tried before the Hon. David G. Ligón. The bill in this case, which was filed by the plaintiff against the defendant in error, alleges that the complainant is the administrator on the estate of bis father Burrell’ Horton, who died in eighteen hundred and thirty-, leaving an estate of seven negroes, and his widow, William Horton, John Horton and the complainant as his only distributees; that he and his brothers on. the death of their father agreed to let their mother retain…

Tried before the ■Hon. D. G. Ligón. The facts are sufficiently stated in the opinion of the court, 1. There was a full and adequate remedy at law; this remedy should have been exhausted. — Vandergraff v. Medlock, 3 Port. 3S9; Morgan v. Crabb, ib. 473 ; Chandler v. Faulkner, 5 Ala. 569. This being the husband’s debt, the bill should have shown a judgment against him and an execution returned nulla bona.

Tried before the Hon. Thos. A. Walker. 1. Sureties are not liable for a penalty, nor for the tort or trespass of their principal. 2.If sureties are liable for damages resulting from such • wrong as is alleged, — the pleadings must precisely show, that some damage, appreciable by the law, has arisen. Because Lawrence recovered in an action to which plaintiffs in error were no parties, it does not follow that he was damnified, nor that he had a right to recover.

Tried before the Hon, Thos. A. Walker. 1. The court should have excluded from the jury the testimony of Barclay in reference to the declarations of David Walker, deceased, because the witness did not and could not state the times and places, and the persons in whose presence the declarations wrnre made. 2.

Tried before the Hon. Nathan Cook. This was'an action of assumpsit brought by the defendant1 against the plaintiff in error to- recover $T50 commissions due him as the assessor of the taxes for the county of Butler. The defendant below was the tax-collector, and the only point raised in the case was whether the assessor is entitled, under the revenue act of 1847-8, to .commissions on the county tax.

The facts disclosed by the record, so far as they are material for an understanding of the opinion, are briefly these; Mary T. Ross, the widow of Jack F. Ross, deceased, was appointed administratrix, and William Crothers, the plaintiff in error, adm’r on his estate in November 1S37. On the 12th April 1839, the widow resigned the trust and removed from the State, leaving the estate entirely to the management of said Crothers.

Tried before the Hon. John Bragg. ■ This was an action by Daniel Walker against the plaintiffs in error, to recover the amount due on a promissory note, purporting to have been signed by McGrew & Harris, in favor of William Stewart and by him endorsed to the defendant in error. McGrew interposed a plea of non est factum, upon which issue was joined.

' Tried before the Hon. John Bragg, 1. The third section of the act of 1848, Pamph. p. 95., repeals the act of 1819, under which this motion is made, and the case stands as if there had been no penalty for the default at the time it was committed. — 1 Stew. 347, 506; 8 Por. 434; 9 N. Hamp. 59; 3 J. J. Marsh. 594; 1 Hill 324; 5 Pick. 168; Dwarris on Statutes 693. If the statute was repealed, then, the motion was at an end. — Pope v. Lewis, 4 Ala. 487.

Tried before the Hon. John Bragg. The general law requires that parties shall be sued in the counties of their residence. This is our general policy. The special act relates to actions ex contractu — necessity required that act in such cases, because on joint contracts, separate actions could not be sustained. The construction must be given in view of what the evil was, which sought to be remedied.

1. The court should have sustained the demurrers to the 3d and 5th pleas. These pleas are double. 2. In any action on the case it is only necessary for the plaintiff to allege and prove the consequential damage, and the facts, or conduct of the defendant, out of which it grew. If any law justifies the conduct of the defendant, he must show it.