Volume 18 — Alabama Reports

Tried before the Hon. J. W. Lesesne. The facts of the case may be found in the opinion. 1. Complainant’s removal from the administration operated as an abatement of the suit. — 2 Ala. 415-418; 3 ib. 570. 2. Depositions taken whilst a suit stands abated will be suppressed. — Gresley Ev. 152 ; 1 Smith’s Cb. Pr. 341, 525; 1 Story’s Eq. PI. 328, 356:7, 361.. II. The pretended settlement in Georgia is wholly invalid as a defence in this suit — for many reasons.

Tried before the Hon. Geo. Goldtlnvaite, This was an action of detinue to recover a slave named William, and was instituted by William J. Price, Elisha Price, Oliver Hughes, John R. Hughes, William J. Hughes and John E. Hughes, heirs at law of Polly Woods, deceased, against Jacob Talley. The defendant having died, pending the suit, it was revived against his administrators.

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

Tried before the Hon. John Bragg. The ruling of the Circuit Court, in vacating the judgment against G. B. Gates for costs, was erroneous. By becoming security for the plaintiff in the attachment, he stipulates to carry on the suit to effect, and the law provides, his liability shall be the same as that of his principal. — Clay’s Dig. 60, § 27. The attachment bond was made to Gurley only, and to him alone is the security to the bond liable.

<p>1. A writ of error can only be sued out by one who is a party or privy to the record, and who has been injured by the judgment and will be benefitted by its reversal.</p> <p>2. When an Orphans’ Court in this State, in the rightful exercise of its jurisdiction, lias appointed a. guardian for the person and estate of a minor, no one else can be recognized as the lawful guardian, whilst such appointment remains unrevoked.</p> <p>3. In such case, the removal of the guardian or ward to another State does not divest the jurisdiction, or confer authority upon its courts to appoint a guardian, who can supersede the guardian appointed here.</p> <p>4. In determining whether the guardianship of a minor shall be transfered horn this to another State, the Orphans’ Court must necessarily exercise a sound discretion, and if the order is refused, the letters of guardianship, granted by the court of the State into which the transfer is proposed to be made, should be treated as a nullity, and as confering no right oil the person to whom they have issued.</p> <p>5. The design of the settlement, which the statute requires to be made before an order can be granted for the transfer of a guardianship from this to another State, is to furnish the court, into which it is proposed to be removed, with record evidence of the condition of the estate and of the property of the ward, so that such court may be able to see by an inspection of the record, with what the guardian appointed by it, is justly chargeable. A settlement that fails to show this is insufficient to authorise the transfer.</p> <p>■6. To authorise the transfer of the guardianship of a minor, under the statute, from this State to another, both the guardian and ward must reside in the State to -which it is proposed to remove it.</p>

Tried before the Hon. J. W. Lesesne. I.The lien cannot be enforced— 1. Because the contract was not made with reference to the lien, new securityhaving been taken. — 7 Ala. 31S. 2. Because the security was destroyed and extinguished by ■ the taking of a new note. — 4 Kent, 193. 3. The new note was not a renewal of the land note, because the contract was with different parties. It was a new contract, for a different note — the payee of which was different. II.

Tried before the Hon. Geo. Goldthwaite. Neither party had any lien upon the fand, until created' by the judgment of the court. “ Where A. sells land to B. and takes a security from B. for the purchase money, he thereby waives his legal lien upon the land.” — Foster v. The Trustees of the Athenseum, 3 Ala. 302. “ Where A. sells land to B., retains the title in himself, and gives a bond to make title when the money is paid, it is to all intents and purposes in the nature of a…

Tried before the Hon. J. W. Lesesne. The bill in this case was filed by the plaintiffs in error as the heirs at law of Thomas Johnson against Theophilus Toulmin, the heirs of Daniel Juzan, and the heirs of David Files, for the purpose of redeeming mortgaged premises, for an account, &c. The facts are sufficiently stated in the opinion of the court. 1. Files & Lyon, the purchasers from Juzan, went into possession under the contract with him in 1813.

This case presents but one point, viz: — the power of the court at a subsequent term to amend a judgment rendered at the previous term of the County Court, and render judgment against the successful party for half the cost. It has been repeatedly held by this oourt that it cannot be done. — ^-See Locke v. Noland, 16 Ala. 52; Johnson v. Glascock, 2 ib. 591; 12 Peters, 492. 1.

Error, to the Circuit Court of Mobile. Tried before the Hon. John Bragg. 1. The plaintiffs’ case shows that they were not entitled to recover. There was no contract with the defendant, Wiswall, nor with any one authorised by him to make a contract. It was solely with the son, who was under age; and it is the settled rule, that “ a father is not liable for clothes furnished his son, without some proof of a contract on his part, express or implied.” — Iiolfe v. Abbott, 25 Eng.

The defendant, as surviving partner of Charles Hammond, sued the plaintiff in error to recover a note or its proceeds, made payable to the firm by Fleming Freeman. Counts in debt and detinue as on a bailment and a finding, were united in the declaration, and there was a demurrer by the defendant, which was overruled by the court.

Tried before the Hon. John Bragg. 1. It is insisted that on the appeal an issue de novo should have been tendered to defendant, by way of declaration or suggestion, and when defendant refused to plead, then to proceed as in other cases of default, 2. The jurisdiction of the magistrate is $50, and no more.

Error, to the Circuit Court of Russell. Tried before the Hon. John J. Woodward. This was a proceeding by scire facias instituted by the plaintiff in error, as administrator de bonis non of Francis Williams, deceased, to revive a judgment recovered by Milton Williams, the former administrator, in his life-time, against the defendants in error. Two of the defendants resided in St.Clair county, to which county branch writs were issued for them.

Tried before the Hon. John Bragg. The error assigned is the rendition of the judgment against the garnishees. The judgment purports to be rendered on the answer — and not on any default. A motion was made for judgment on the answer at the return term and overruled. That is conclusive as to the liability of the garnishee on that answer.

Tried before the -the Hon. J. W. Lesesne. The bill in this case was filed by the defendant against the plaintiff in error, for the purpose of restraining from selling- certain slaves, alleged in the bill to be her separate property, under an execution against James N. Hill, her husband. The facts of the case will be sufficiently understood from the opinion of the court. The chancellor granted the relief prayed, and his decree is now assigned as error.

Error, to the Orphans’ Court of Wilcox. The demurrer admits that the administratrix has sufficient property in her possession, besides that of which petitioner prayed distribution, to pay all the debts of her intestate. It is the duty of the representative to distribute the estate of his intestate within three months after reporting estate insolvent. Acts 1820, ch. 20, § 1; Toulmin’s Dig. 333; Clay’s Dig. 196, § 22.

Tried befo.re the Hon. John Bragg. 1. The new trial was granted on the condition that issue should be joined at next term. The defendants had no right to plead any special plea, but were bound by the condition to join issue on the declaration. The condition was not to plead to issue, but it was to join issue on what was already avered before the court.

This was a motion against Robert Caskey, sheriff of Randolph county, and his securities, for failing to return an execution, issued from the County Court in favor of the plaintiff against John Dobson. The notice of the motion was served on the sheriff alone, who appeared and made up an issue of fact'which was submitted to a jury for trial.

Tried before the Hon. John Bragg. This was an action of trover for the conversion of a slave, and was brought by Elizabeth C. Acre against the defendant in error. After the institution of the suit,-Elizabeth C. Acre intermarried with Joseph Tucker, who was thereupon made a party plaintiff with her.

John J. Woodward. 1. The contents of papers or proceedings had before a justice of the peace and reduced to writing, and of notes, cannot be proved by parol evidence, without first showing the loss or destruction of the higher evidence. — Bullock v. Ogbourne, 13 Ala. 346; Smith v. Armistead, 7 ib. 698. 2.

Tried before the Hon. John Bragg. 1. A pardon does not discharge the costs going to the officers, and it was therefore error in the court below in sustaining the motion to quash the execution in the case, without payment of costs. — Bac. Ab. 7.408, (b;) Exparte McDonald, 2 Whart. 440; Perkins v. Stephens, 24 Pick. 280. 2. A remission of a fine by the Executive does not discharge the moiety going to the informer. — -Rowe v. The State, 2 Bay. 565 ; U. S. v. Lancaster, 4 Wash.

Tried before the Hon. John J. Woodward. The plaintiff in error was tried and convicted in the' Circuit Court of Conecuh county on an indictment, of which fhe following is a copy: “ State of Alabama — Conecuh County, Circuit Court — Fall Term 1849. ) ) The grand jurors for said State and County, on their oaths present that Emanuel Hirschfelder, late of said county, ’being then'and there a pedler, did on the first day 'of September, Eighteen hundred and forty-nine, in said…

Error, to the Cffcujt Court of Mapon. Tried before the. Hon, John John J. Woodward. This was an action of assumpsit on a promissory note made by the defendant in favor of the plaintiffs in error. The cause was tried' upon issues formed on the pleas of non assumpsit and want of consideration.

Tried before the Hon. John, E. Jones. The plaintiff in error was indicted for refusing to testify in gaming cases, before the grand jury, after being summoned and having appeared before them.

Tried beforelhe Hon. Nathan Cook. Trover by (he plaintiff against the defendant in error to recover damages for the conversion of a horse. The horse in question was seized and sold by the defendant, as a constable, under an execution for $45, against the plaintiff, who at the time of the levy was in possession of another horse, and a pair of work oxen, the latter of which were claimed by 1ns minor son.

1. Wilson was clearly entitled to amend his return. — Hudson v. Parker, 9 Ala. 413 ; Cunningham v. Pool, 1 ib. 615; 5 Watts. 91. 2. Wilson was clearly not liable for any thing but what he received as guardian — he gives bond and security for the faithful discharge of his duties as such. The amount of the estate is determined before hand, and by it is the amount of the bond determined.

Error, to the Chancery Court of Clarke. Tried before the Hon. J. W. Lesesne. The bill in this case was filed by the plaintiff as the half brother and heir at law of Ann Eliza Davis, deceased, to recover from the defendants certain real and personal properly, which they claimed, as remaindermen, under the will of Norphlet Davis, deceased.

Tried before the Hon. John Bragg. Debt .on arbitration bond by the plaintiff against the defendant in error. The declaration counts on the penalty alone. The defendant craved oyer of the bond and condition, which being set out, he pleaded no award.

I. An advancement must be made to the heir of the intestate ? therefore the record should show conclusively, that the advancement was made to the children (and each of them,) of Sarah Hammond. The record states that the advancement was made to Asa Hammond in his lifetime. Asa Hammond had no authority to receive an advancement to his children. He was not their guardian, and it will not be presumed that he liad any authority to receive money for his children. 8.

■ Error to the Circuit Court of Butler. Tried before the Hon. John J. Woodward. This was an action of ejectment brought by the defendant against the plaintiff in error to recover a lot of land in Butler county. It appears by a bill of exceptions that the plaintiff showed a patent for the land to one Manning, and a deed from said Manning to him, dated on the 9th day of January 1838.

■ Error to the Circuit Court of Montgomery. Tried before ■ the Hon. Thos. A. Walker. '• I.The action is trespass, brought by Wm. T. Givens in,the court below against James W. Pryor, for seizing and carrying away certain slaves improperly. ‘ 1. The suit was brought to the fall term of Montgomery county 1846; at the spring term thereof, in 1847, the death of the plaintiff, Givens, was suggested and James M. Newman was made plaintiff in his place. 2.

Tried before' the Hon. Nathan Cook. This was an action of assumpsit, brought by Matilda Nixon, as administratrix of Alexander Nixon, deceased, against the plaintiff-in. error as the executor of Martha Burt, deceased. Matilda Nixon, having been removed from the office of administratrix during the pendency of the suit, it was revived in the name of the defendant in error, who had been appointed the administratorde bonis non.

Tried before the Hon. John J. Woodward. This was an action of assumpsit by John B. Lewis, against the plaintiff in error, as adminissrator of John Lewis, deceased, to recover for money paid, laid out and expended to and for the use of his intestate. The facts appear in the opinion. 1. The facts disclosed by the bill of exceptions show that the witness, Jacob Lewis, is interested in the event of this suit.

Tried before the Hon. John J. Woodward. 1. The administrator had the right to resign, under our statute, and the administrator de bonis non was the proper successor in the suit. — See Skinner v. Frierson, 8 Ala. 915; Warren v. Rist, 16 ib. 686; Elliott v. Eslava, 3 ib. 568. 2- The plaintiff below could, at his election, retain the administrator in chief (unless he showed either a due administration, or a transfer of all the assets to the succeeding administrator,) or he…

Tried before the Hon. Geo. W. Stone. This was a trial of the right of property in six bales of cotton levied on under an execution in favor of the plaintiffs in error against one John M. Mock, and claimed by the defendant in error.

Tried before the Hon. Nathan Cook. To show that the court erred, the plaintiff makes the following points, and sustains them by the authorities cited: 1. Slander consists in the false and malicious charge made, •.of. crime ignominiously punished. Unless the expressions; or words used, convey to the minds of the by-standers the impression that a charge of crime is made against the person of whom the words are spoken, no action will lie.

Tried before the Hon. Nathan Cook. This was an action of debt by the defendant against the plaintiffs in error as administrators, &c., of Daniel M. Forney, deceased, on a writing obligatory, by which the said Forney as principal, and two others as his securities promised “ to pay William Lee Davidson the sum of three thousand five hundred dollars for value received.” The writ issued against the plaintiffs in error and one Jones M. Withers, as the administrators of Forney,…

Tried before the Hon. Thos. A. Walker. This was an action of assumpsit, brought by the defendant in error, for the use of Jeremiah Walker, surviving partner of John Walker, deceased, against the plaintiffs in error as administrators of Isham Gwinn, deceased, to recover the amount of a note for $S0, made by said Gwinn in bis life-time in favor of the defendant in error. The case was tried on the pleas of non-assumpsit, payment, and set-off.

Tried before the Hon. John Bragg. This was an action of assumpsit by the plaintiff against the defendant in error, as the first endorser of a promissory note for five thousand dollars, made by Horatio L. Spooner in favor of the defendant, dated the 21st Dec. 1845, and payable twelve months after date, at the Planters Bank of Tennessee, at Nashville. The note was endorsed by the defendant to A. H. Jones, by said Jones to James Perrine, and by said Perrine to the plaintiff.

Tried before the Hon. Sam’I Chapman. This was an action of trover brought by the plaintiff in error as the administrator of John L. Flowers, deceased, against the defendant in error to recover damages for the conversion of a negro woman, named Celia, and her two children.

Tried before the Hon. Nathan Cook. 1. The plea to the first count in (he declaration should have been sustained — the facts of the plea bring the case within the principle decided in Branch Bank Montgomery v. Sydner, 7 Ala. 308. 2. The witness was improperly admitted. — Bean v. Pearsall, 12 Ala. 592. 1. The question raised on the demurrer is: can an agent maintain an action on a written promise made to himself?

Tried before ílíg Hon. Thos. A. Walker. This was an action of assumpsit by the plaintiffs against the defendant in error to recover for medical services rendered by them to a slave'by the name of William. It appears by the bill of exceptions that the slave was hired by the agent of one Drish, who resided in Tuscaloosa, to the defendant, for the year 1848, and that the services were rendered during that year.

Error, to the Circuit Court of Montgomery. Tried before the Hon. Thomas A. Walker. This was a motion made by the plaintiff in error to have satisfaction entered of a judgment recovered against him by the defendant in error in the Circuit Court of Montgomery county, at its fall term 1843.

The intention of the testator appears clearly from the will that his estate should be a joint stock, for the use of bis family, including the widow, until a division should be made. This intention is expressed in the clause in which the sum of fifty dollars per annum is given to the Methodist church. This annuity was to be a charge on the whole estate, as it had been in effect, while the whole estate belonged to him.

Tried before the Hon. John J. Woodward. Assumpsit by the plaintiff against the defendant in error for money paid, laid out and expended for his use, &c. The statute of limitations of the State of Georgia, ra which State the defendant lived at the time of the transaction and .for six years afterwards, was relied on as a defence, it being agreed between the parties that any special matter in bar might be .given in evidence under the general issue.

Tried before the Hon. John J. Woodward. Trover by the plaintiff against the defendant in error for the conversion of a horse. The defence relied on was a former recovery in trover, for the conversion of the same property» against one Oden, under whom the defendant claimed title. The court held the defence good, and so charged the jury, which is the error now assigned. 1.

Tried before the . Hon. John Bragg. Assumpsit by the defendant against the plaintiff in error as the drawer of a bill of exchange.

Tried before the Hon. John J. Woodward. The defendant is sued as executor, and the declaration contains one count only, in which several causes of action are stated. — 2 Saund. 338, top page, note 2. The plaintiff is unquestionably entitled to the cause of action last described in the count against the defendant as executor, it being an account stated between the plaintiff and the defendant as executor of Thomas. — 12 Serg. & R. 97-8-9.

Tried before the Hon. John J. Woodward. Assumpsit by the defendant against the plaintiff in error, on a special contract. The facts of the case are sufficiently noticed in the opinion of the court.

Tried before the Hon. W. W. Mason. 1. The purchase was made by a special agent, limited to pay three thousand dollars, and if he exceeded that amount the principal was not bound for the excess, but the agent alone. — .2 Kent’s Com. 619-20; Roe v. Predeux, 10 East. 158. 2.

<p>Error to the County Court of Mobile.</p> <p>Cited 6 Cow. 193 ; 7 Wend. 322; 14 Pick. 188; 1N. Hamp. R. 19 ; 7 Halst. 339.</p>

Error, to the Circuit Court of Russell. Tried before the' Hon. John J. Woodward. The plaintiff in error was indicted for a rape on a white woman. The case will be fully understood from the opinion of the court. 1. The word mulatto is a term used to denote the offspring of a union between a white and a negro.

Tried before the Hon. John J. Woodward. Thus was a trial of the right of property In .two slaves, levied on under am execution in favor of the plaintiff .in error against one Bryant S. Matsgham, and claimed by the defendant in error.

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

Tried before-the Hon. Thomas A. Walker. This was an action by the defendant against the plaialii? ire •error. The. declaration contains two counts.

Tried before the Hon. George W. Stone. This was a proceeding by scire facias against the defendants upon a bail bond for the appearance of James Weaver to answer to an indictment to be prefered against him, See.

<p>Error to the Circuit Court of Montgomery. Tried before the Hon. Thomas A. Walker.</p> <p>cited 1 McCord, 370 ; 2 Bail. 276 ; 4 Bibb, 246; 2 ib. 467; 15 Pick. 500; 9 ib. 112; 2 Penn. 419; 1 Monr. 209; 6 Dana, 7.</p>

Error, to the Circuit Court of Montgomery. Tried before the Hon. Thomas A. Walker. The defendant in error was summoned to show cause why an alleged transfer of a note made by the garnishees, McLeod &Leaird, to James Davidson, for $J,240 23, due January 1st, 1850, should not be declared invalid and said demand subjected in the hands of the garnishees to the payment of the plaintiff’s claim against Davidson.

Eiiror to the Circuit Court of Benton. Tried before the Hon. Thomas A. Walker. This was an action of assumpsit, instituted on the 16th Oct. 1847, by the defendant in error, as executor of Thos. A. Powell, deceased, against the plaintiff in error, to recover the amount of a promissory note for $2500, dated, Benton county, Ala., 26th Dec. 1S40, and payable one day after date, to Mildred Hogue, by whom it was endorsed to said Powell.

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

Error, to the Circuit Court of Mobile. Tried before the Hon. John Bragg. 1. The separate debt of the plaintiff cannot be defeated by an off-set of a joint debt. The debt offered by the defendants is due from Murphy & Brack, and is an open account. The debt is joint. — 2 Saun. PI. & Ev. 789; 2 Sum. 409; 2 Bibb, 86; 4 Rand. 359; 1 Port. 232; 5 Ala. 110. 2.

Error, to the County Court of Mobile. with sureties on his official bond as constable, was sued by the Governor for the use of Geo. W. Torrance to recover for selling a quantity of wood, which he had levied on under an execution in his hands, after the execution had been superseded by certiorari. The defence relied on was that Payne, the constable, had no sufficient notice of the certiorari and supersedeas.

Tried before the Hon. David G. Ligón. 1. The statements and allegations of the bill must show that the Chancery Court had jurisdiction, and that the complainant was entitled to the relief prayed. In this case the complainant seeks a rescisión of the contract, without abandoning possession, and therefore, must not only show a demand of title, or an inability on the part of the defendant to make it, but that there was fraud on the part of the latter, or that he was insolvent.

Erroe to the Chancery Court of Russell. Tried before the Hon. W. W. Mason. James C. Cook, the father of the complainant, amongst other things, bequeathed to the complainant and her children five thousand dollars, to be put at interest for their benefit by the trustees, appointed by his will, who are the defendants ira error.

Error, to the Circuit Court of Sumter. Tried before the Hon. Geo. Goldthwaite. 1. The pleas in abatement raise the question whether the infants should have been followed in the suit by their guardian, and not by pro. ami. — Clay’s Dig. 336 §130. For the doctrine on this subject, (independent of our statute,) see 1 Thomas’ Coke, 171, note 29. Although this right was first given in England by statute, it has been long regarded as common law. — Thomas v. Dicke, 11 Verm. 273. 2.

Tried before the Hon. John J. Woodward. This was an action of assumpsit, brought by the plaintiff in error against David Walker, the testator of the defendant in error, in his life-time, on a promissory note, alleged to have been executed by the deceased, but which was signed in the name of David S. Walker. The note was- made payable- to Nichols, Poor & Hall, and by them assigned to the plaintiff.

Tried before the Hon. W. W. Mason. The facts sufficiently appear in the opinion of the court. 1. The power given to County Courts over the estates of deceased persons does not divest chancery of jurisdiction, particularly where a matter peculiar to chancery jurisdiction is involved. — Gayle et al. v. Singleton, 1 Stew. 566, and see Cherry & Bell v. Belcher, 5 S. & Port. 133; Leavins v. Butler & Wife, 8 Port. 3S1; Hunley et al. v. Hunlev, 15 Ala. 91. 2.

Tried beiore the HoikD. G. Ligón. This bill was filed by the plaintiff in error against the administrator and heirs at law of James C. Wayland, deceased, for the specific performance of a parol contract, entered into by the complainant with the said Wayland in his life-time, for the purchase of a certain lot of land adjoining the town of Huntsville.

Tried before the Hon. Nathan Cook. ' This was an action of assumption instituted on the 7th Sept. 1846, by the defendant against the plaintiffs in error, as executors of Britton Mims, deceased, to recover the hire of a slave . by the name of Penny, from January 1839 to Sept. 1S45. The case was tried on issues formed upon the pleas of non-assumpsit and the statute of limitations of three years.

Tried before the Hon. J. W. Lesesne. The bill in this ease was filed by the plaintiff against the defeudant for alimony.

Tried before the Hon. J. W. Lesesne. -»r The bill in this case was filed by ibe^iffefenclant against the plaintiff in error, and allege$7that, arCtbe 1st July 1S44, the complainant sold to the defendant a lot of land in Lowndes county, known as the south-west quarter of section fifteen, township twelve, and range sixteen, except thirty acres of the north end thereof, for six hundred and fifty dollars, and executed to him his bond to make titles when the purchase money should…

Tried before the Hon. J. W. Lesesne. The bit! in this case was filed by the plaintiff in error, who was administrator of Edmund Alexander, deceased, to have contribution decreed him from the defendants (one of whom was the widow of the intestate and is now the wife of William P. Fisher, her co-defendant,) for monies advanced by him over and above the assets, in payment of the debts of the estate.

Tried before the Hon. John Bragg. 1. Brodnax, Newton Sr Co. were the acceptors of the draft sued on. Brodnax, one of the acceptors, affirmed the genuineness of the signatures upon it, in delivering it for sale to the broker. His firm could not contest the signatures of the other parties. They were estopped by his act. — 2 G. '& Johns. 296; 2 Bing. N. C., 544; Chitty on Bills, 634; 10 B. & C. 468; Chitty on Bills, 631, note n., 636 notes.

<p>1. The amendment of an execution, by striking out the name of a person, not a party to the judgment, and which name had been improperly inserted in the execution, does not affect its lien.</p> <p>2. The delivery of an execution to a Bank Marshal, appointed under the act of 1843, whilst that act was in force, created a lien on the goods of the defendant, co-extensive with the limits of the State.— (Dargan, C. J., dissenting.)</p> <p>3. The Act of 1843, (Clay’s Dig. 118, <! 86,) confering on Marshals, appointed by the State Bank and its Branches, power to serve process, &c., did not conflict with the 24th sec. of the 4th article of the Constitution.</p>

Tried before tb* Hon. John Bragg. 1. The declaration is a nullity. The writ does not warrant it. The parties are other and essentially different from those in the writ. — Elliott & Smith, use of Haralson, 1 Ala. 76 ; Sexton v. Roane, 7 ib. 829 ; Moffatt v. Singleton, 3 Stew. 322. 2. Stipulators are not parties to the suit.

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

1. By the act of 4th February 1S46, the administrator do bonis non is authorised to cite the former administrator to a settlement in the Orphans’ Court. 2.

This was an application, .made to the Orphans’ Court by the defendant in error, to admit to probate the will of Mary S. Hassel, deceased, by which she bequeated to Webster R. Hassell, since deceased, certain personal property to which she was entitled, under the will of her father, after the termination of a life estate in her mother.

<p>Motion for a mandamus against the Judge of the Ninth Judicial Circuit.</p>

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

Tried before the Hon. John Bragg. This was an action of ejectment, instituted by the defendant against the plaintiffs in error, to recover a lot and improvements in the city of Mobile.

<p>Error to the Circuit Court of Tuscaloosa. Tried before ?he Hon. Jno. D. Phelan.</p>

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

Tried before the Hon. J. W. Lesesne. The bill in thÍ3 case was filed by Samuel A. Carpenter and his wife, the latter of whom was the daughter of Charles Hall, deceased, against the defendants in error, who are heirs at law of the deceased, and the executors of his supposed will.

Tried before the Hon. John Bragg» The defendant in error caused a summons of garnishment to be served on the plaintiff in error, requiring him to appear before! a justice’s court, to which the writ was returnable, and answer what he was indebted to one Albert ,G. Tucker. The garnishee answered and denied all indebtedness, and the defendant in error having contested his answer, an issue was made up and tried, and a judgment rendered by the justice against the garnishee.

<p>1. The statute, giving damages at the rate of ten per cent, on the affirmance of judgment in this court, when the defendant below is the plaintiff in error and has superseded the judgment, applies to judgments for specific money demands only, and does not embrace judgments of condemnation in trials of the right of property.</p> <p>2. A judgment in this court, which awards ten per cent, damages on affirmance of a judgment of condemnation in a trial of the right of property, is too uncertain to enable the clerk of the court below to compute or ascertain the amount of damages, and to that extent is consequently void.</p> <p>3. The bond prescribed by the 3d section of the act of 1828, (Clay’s Dig. 213,) regulating trials of the right of property, was merely intended to secure to the plaintiff the value of the property as assessed by the jury, if that value be less than the amount of the judgment, and if as much or more, the amount of the judgment itself. Tb e act does not in any manner alter the character of the judgment of condemnation, or authorise this court to award ten per cent, damages on its affirmance.</p>

<p>1. A non-resident, against whom, a final decree.has been rendered with: out appearance or personal service, may file a petition for the rehearing- of the cause, within three years from the rendition of the decree, although he has never been within the limits of the State.</p> <p>2. In such case, the petition, need only set'forth the proceedings, or make such reference to them as will show the condition of the cause, and state the non-residence of the petitioner, and that his application is made within three years from the date of the decree.</p>

Tried before the Hon. J. W. Lesesne. The bill in this case was filed in behalf of the defendant in error by his next friend, to restrain the plaintiff in error from selling, under an execution against bis father James N. Hill, a slave that had been levied on as his property.

Tried before the Hon. David G. Ligón. The bill in this case was filed by the plaintiff against the defendants in error. The facts sufficiently appear in the opinion. The chancellor dismissed the bill for want of equity, which is the error here assigned. ' If there is equity in making the estate of him, who enables an unprincipled or imprudent guardian to get possession of an orphan’s property and spend it, responsible .to the orphan, then there is equity in this bill.

<p>1. Where the trial of a party, charged with a capital offence, is continued at one term, on account of the inconrpetency of the presiding judge to try him, and at the succeeding term by the State, without his fault or assent, he is entitled, as a matter of legal right, to be admitted to bail, and this, notwithstanding the cause had been previously continued at his instance.</p>

Tried before the Hon. John Bragg. This was an action instituted by the plaintiff against the defendant in error to recover damages for the loss of a negro alleged to have been hired to him. The questions arising upon the pleadings will be understood by reference to the opinion of the court. By the bill of exceptions it appears that the defendant offered as a witness his brother Samuel C. Gilbert and that the plaintiff objected to him on the ground of interest.

Tried before the Hon. John J. Woodward. This was an action of ejectment instituted by the defendant against the plaintiff in error to recover a lot or parcel of land in Macon county. It appears by the bill of exceptions that the plaintiff below to make out his title introduced the following evidence: 1.

<p>Error to the Circuit Court of Tuscaloosa.</p>

Tried before the Hon. John J. Woodward. This was an action of assumpsit, commenced by the defendants in error against Hugh M. Cunningham in his life-time, and revived after his death against the plaintiff in error as his executor, to recover certain fees which they claimed to be due them for professional services, as attornies, by the Western Bank of Georgia at Rome, and which they alleged the testator of the plaintiff in error, in consideration of the transfer to him by…

Tried before the Hon. Nathan Cook. This case was commenced by a petition from sundry citizens of Butler county to the Commissioners Court for the establishment of a private road running through the lands of the plaintiff in error.

Tried before the Hon. W. W. Mason. The bill in this case was filed by the defendant against the plaintiffs in error.

<p>1. If a party, after the grant of a new trial on condition that he pay 'he costs of the suit, without complying with the condition, sues out a writ of error to reverse the judgment, it is a waiver of his right to the new trial.</p> <p>2. The grant of a new trial, on condition that the costs be paid by a specified day in vacation, is a nullity. (Per Parsons, J. — Dargan, C. J., expressing no opinion, and Chilton, J., dissenting.)</p> <p>3. The regularity of the practice of granting a new trial after judgment, as to part, and letting the judgment stand as to the residue of the demand sued for, questioned per Parsons, J., and Dargan, C. J.- — Chilton, J., holding that the practice has been too long sanctioned by'this court to be now disturbed.</p>

Error, to the Chancery Court of'Marengo. Tried before the Hon. J. W. Lesesne. This bill was filed by the plaintiffs against the defendants in error, one of whom is William Armistead, the executor of James Semple, deceased.

Tried before the Hon. Nathan Cook. This was an action of detinue instituted by the plaintiff against the defendant in error to recover certain slaves. The defendant filed the plea of non detinet and two of estoppel.

Tried before the Hon. Thos. A. Walker. This was an action of debt, instituted by the plaintiffs against the defendant in error, in December 1849, to recover the amount of a judgment recovered in 1840.

Tried before the Hon. Alex. McKinstry. The prisoner was indicted in the City Court of Mobile for the abuse of one Hannah Smith, a child under ten years of age, in an attempt to carnally know her. It appeared by the testimony offered on the part of the prosecution that the child’s private parts were inflamed, which one physician testified arose from pressure and bruising, but another from a venereal disease.

Tried before the Hon. Thos. A. Walker. The defendant was indicted for uttering and publishing as true a counterfeit half dollar, and being convicted, moved in arrest of judgment, for defects apparent upon the face of the indictment, which motion was overruled by the court-below, and certified to this court as novel and difficult. 1. The indictment was good, and the motion in arrest of judgment should have been refused.

Tried before the Hon. Thos. A. Walker. 1. The statute under which the conviction in this case was had, is in the following words: “Every person who shall be be guilty, and be thereof convicted, of an assault with intent to murder, maim, rob, or ravish, or shall attempt to commit murder by any means which do not amount to an assault, shall be punished, &c.” — Clay’s Dig. 416, § 30. 2. The statute of 1 Vie.

Tried before the Hon. Geo. Goldthwaite. 1. The demurrer to the first count in the indictment should have been sustained, first, because the indictment charges “ an assault with intent” merely as a legal conclusion, no facts or circumstances constituting the offence being set forth. — See Lambevlin v. State of Ohio, 11 Ohio, 282 ; Turnipseed v. The State, 6 Ala. 664, and authorities there cited; Clarissa v. The State, 11 ib. 57; (in the State v. Marshall, 14 Ala. 411, the…

Tried before the Hon. Geo. Goldthwaite. The plaintiff’in error was indicted in the Circuit Court of Butler for inveigling, stealing, carrying and enticing away a slave, by the name of Cary, the property of one John J.Moorer, with a view to convert said slave to his own use.

<p>Error to the Circuit Court of Pike. Tried before the Hon. Robert Dougherty.</p>

Tried before the Hon. Preston G. ÑasH¿ 1. The custom of charging five per cent, ¿bove legal interest for accepting and advancing, is a custom against law. — Kent v. Lowen, 1 Camp. 177 ; Dunham v. Dey, 13 Johns. 40; Dun-ham v. Gould, 16 ib. 367. 2. But in any event, the service was rendered to Grant only, for whose accommodation the bill was drawn and who got the money; thereupon Swilley & Riley ought not to have beeu charged with the per centage.

Tried before the Hon. Preston G. Nash. The plaintiff sued the defendant in error on a bond, for not delivering at Moscow forty bales of “good fair” cotton, which he had undertaken to deliver, in consideration of the rent of the plaintiff’s plantation and hire of his negroes for the year 1841.

Tried before the Hon. George D. Shortridge. 3. The act of the Legislature is a concession that the defendant could not inherit the estate, because he was an alien, and not a citizen. If so, then the Legislature could not grant him the privileges of citizenship for that purpose; Congress alone could do this.

<p>1. The general rule is, that the defect in a bill of the want of proper parties? defendant should be taken advantage of by plea or demurrer, or be insisted upon in the answer, and if the objection be not taken in one of these modes, it is considered as waived, and the court, unless the absent defendant be an indispensable party, may proceed to a final decree.</p> <p>2. But the omission of one, who is an indispensable party to the bill, is a defeet that wiH reverse the decree on appeal or writ of error, although the objection is taken for the first time in this court.</p> <p>3. To a bill filed to set aside a will, all the legatees are indispensable parties.</p>

Tried before the Hon. John J. Woodward. 1. To charge an endorser on a foreign bill of exchange, a presentment to and demand of payment must be made of the acceptor personally, at his place of business, or his dwelling. There are sound reasons for this rule. — Mason v. Lake, 4 How. (U. S.) Rep. 274. 2.

Tried before the Hon. Thos. A. Walker. This was an action of detinue, instituted by the plaintiffs against the defendant in error, to recover certain slaves. The plaintiffs claimed the slaves in controversy under a deed of gift executed in the State of Georgia, on the 14th March 1S25, by one John C. Hooper to Amanda Greenwood, now Amanda Foote, one of the plaintiffs.

<p>I. The trustee in.a deed of trust for the benefit of creditors, whemsued law .- by one of the cestuis que trust, may, with the assent of the grantor, defeat,; a recovery by showing that the security was obtained by-fraud or that the debt has been-paid.</p>

<p>Error to the Circuit Court of Mobile. Tried before the Hon. John Bragg.</p>

<p>1. Although a demurrer opens the pleadings and reaches back to the first error committed, yet it cannot be visited, in favor of the party demurring, upon separate and distinct pleas, on which he has previously taken issue.</p> <p>2. Where a party, without objection, takes issue on a bad plea and goes to trial, he cannot afterwards avail himself of the irregularity.</p> <p>8. By the common law, when the plaintiff failed to demur to the plea of nil debet pleaded to debt on a specialty, he was bound to prove every allegation in his declaration. Our Statute, (Clay’s Dig. 340, § 1S2,) changes the common law in this respect, so far as to dispense with proof of the execution of the instrument declared on, whether under seal or not, unless denied by plea supported by affidavit, but the plaintiff is still bound to produce the instrument on the trial, and if, when produced, it varies from that described in the declaration, the defendant may move to reject it, or test its legal sufficiency by demurrer to the evidence.</p> <p>4. Whether a writing sued on is a sealed instrument or not, there being no such ambiguity as would authorise explanatory parol proof, must be determined by the construction of the instrument itself, and is a question peculiarly within the province of the court.</p> <p>5. A writing executed prior to the statute of 1839, with nothing on its face to indicate that the parties intended it to operate as a specialty, except a scroll after the signature, with the 'word seal written within, is not to be regarded as a sealed instrument.</p> <p>6. Where to a plea of the statute of limitations, in an action against husband and wife for a debt contracted by the wife whilst sole, the plaintiff replies a subsequent promise by the defendants, &c., it is necessary for him to prove a promise that is binding upon each, otherwise the issue is not sustained and he cannot recover.</p> <p>7. A promise by the husband to pay the debt of the wife, contracted dum sola, is not in law the promise of the wife, and will not take the demand as against her out of the influence of the statute of limitations.</p>

<p>1. Where the payee of a note, not payable in Bank, assigns it for value and binds himself “for the payment of the same until paid,” the necessity of i suit against the maker at the first court to which suit can be brought is thereby waived, and his liability is complete, whenever the endorsee shall * have exhausted his legal remedy against the maker.</p>

Tried before the Lion. John D. Phelan. This was an action.by the plaintiff against the defendant in error as the drawer of.a bill of exchange, dated the 7th August 1840, at six months after, date. The suit.was commenced on the 25th day of April 1.848, and the cause was tried on.issues formed on a special plea of non est factum* and the plea of the statute of limitations of six years.

<p>1. The appearance of the parties, on a motion to set aside a- judgment, and re-instate the cause on the docket, dispenses with the neqessity of,notice.</p> <p>2. Where an attorney has appeared in the canse in the count, below, without objection, his authority cannot be questioned in the appellate court.</p> <p>3. Where a sole plaintiff dies during the pendency of the suit, .a judgment rendered in his name is a nullity, and the court, in. which it-was rendered, may set it aside at a subsequent term, and re-iiqgtatR.the -cause on tfee docket.</p> <p>4. In such case the action is not discontinued by tjip, failure of the personal representative, for more than two years, to have.the judgment,set aside and the suit revived, but the court, in contemplation of law, is to be considered as still having jurisdiction of the cause.</p> <p>5. Upon the death of the plaintiff pendente lite, it is not necessary, if the defendant has been regularly brought into court, to sue out a scire facias, but the practice is to suggest his death, and if the suggestion is not denied, it is entered of record, and on the production of the letters testamentary or of administration, the cause is revived and immediately proceeds in the name of the personal representative.</p>

Tried before the Hon. John J. Woodward. This was a trial of the right of property in. certain slaves, levied on by the sheriff of Tallapoosa county as the properly of Robert J. W. Crockett, under an execution against him from the County Court of Montgomery county in - favor of the defendant in error, and claimed by the plaintiff’in error as the trustee of Mrs. Crockett, wife of the defendant in execution* The plaintiff in execution offered in evidence-a certified copy of the…

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

Eaitqjt to the Circuit Cpurt of Liipestpne. Tried before the Hon. Samuel Chapman. This was an action of trover by the defendant against the plaintiffin error to recover for the conversion of thrpp slaves. The bill of exceptions shows that evidence wa3 introduced tending to prpve that, in 1S26, one John Bell contracted to sell to'Chas.

Error tó the . Circuit Court of Tuskaloosa. This was an action against the deféfidant in error as the endorser of a bill of exchange, dfawn and accepted by Don-oho & Payne, dated -the 2d of June 1840, and payable at twelve months after date.

Tried before the Hon. John Bragg. This was an action of debt by the defendant in error, who was bank marshal, against the plaintiffs in error, who were the sureties on the bond of William Cleaver, the deputy of the defendant in error, for the failure of Cleaver to pay over money collected by him on an execution.

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

<p>Error to the Circuit Court of Russell. Tried before the Hon. N. Cook.</p>

<p>1. The injunction meant by the statute (Clay’s Dig. 337, § 79,) upon the dissolution of which the bond is to have the force and effect of a judgment, is the -writ of injunction, and unless such writ issues, there is nothing to support the statutory judgment.</p> <p>2. On a motion to quash an execution, it is not admissible to prove a mistake in the judgment, as to the name of one of the parties by whom it was ccnfessed, so as to make it support the execution; but such mistake can only be corrected, if at all, by a direct proceeding for that purpose.</p> <p>3. Where the execution, issued on an injunction bond which misdescribes the judgment sought to be enjoined, pursues such judgment, it cannot be so amended as to make it conform to the judgment described in the bond and thus vary from that which it was intended to describe.</p>

<p>Error to the Circuit Court of Perry. Tried before the Hon. Geo. D. Sbortridge.</p>

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

Tried before the Hon.' Geo. D. Shortridge. This was an action by the defendant against the plaintiff in error as the drawer of a bill of exchange for $300 on Desha, Smith & Co., of Mobile, dated March 26th, 1846, and payable on the 26th May following. The declaration contained a count on the bill and the common counts.

This was a motion rpade by the plaintiff in error, as administrator of James B. Tutt, against the defendant in error, to quash an execution and to re-tax the costs.

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

<p>1. A scire facias will lie to revive a judgment, on which no execution has-issued within ten years, notwithstanding an execution issued thereon within a year and a day. The 3d sect, of the Statute of 1835, (€lay’s Dig. 206,) inhibits the issuance of execution on a judgment under such circumstances»</p>

. Error to the Circuit Court of Jefferson. Tried before the Hon. Geo. D. Shortridge. This suit was commenced by attachment, sued out by the defendant against the plaintiff in error. The case will be understood from the opinion.

Tried before the Hon. John D. Phelan. 1. In this proceeding the State is bound to show nothing. The defendants are called upon and are required to show by what warrant they claim the franchise which they exercise, and’ they are bound to show every thing required by the act of incorporation to be done in order to establish their legal existence as a corporation. — Ang. & Am. on Corp. 636, § 8; The State v. Ashley, 1 Ark. 513-552-3; Bank of Auburn v. Aikin, 18 Johns.

Tried before the Hon. W. W. Mason. The bill in this case was filed by the plaintiff in error, by her next friend, against the defendant in error, to reform a deed, and for an account, &c. It alleges that William Smith, the father of the complainant, on the 3d November 1838, executed a deed of gift, by which he conveyed certain lands and a slave “to her. during her natural life, and after her death, to her heirs forever;” that at the time of its execution she was the wife of…

Tried before the Hon. Sam’l Chapman. The defendant brought an action against the plaintiff in error for a malicious prosecution. The plaintiff offered to prove what his wife had testified to before the magistrate, by whom the charge was investigated. The court rejected the testimony, which is the error bow assigned.

The demurrer to the statement of the plaintiff should have been overruled. — See the act prescribing and regulating the fees of the judges and clerks of the County Courts of this State, passed in February 1848; Pamphlet Acts, p. 86, § 3 and 6.

Tried before the Hon. Sam’l Chapman. This was an action of trover by the plaintiffs against the defendant, for the conversion of four slaves. The plaintiffs introduced as evidence of their title a deed, which is sufficiently noticed in the opinion, and proved that the cestui que trust named therein afterwards intermarried with Henry W. Norton, who, with her, is plaintiff in this suit.

Tried before the Hon. John J. Woodward. The Commissioners’ Court of Revenue and Roads for the county of Talladega, on the petition of sundry citizens, passed an order for the establishment of a road, a portion of which ran through the lands of the defendant in error.

<p>1. Where a usurious debt has been settled, by the creditor taking in satisfaction property mortgaged to secure it, a court of equity will not open the transaction and allow a redemption, on the ground of the usury alone.</p> <p>2. Where the mortgagee has paid the full value of the mortgaged property, and without fraud, misrepresentation, or the exercise of undue influence, obtained from the mortgagor a release of the equity of redemption, a court of equity will not disturb the transaction.</p>

<p>Error, to the Chancery Court of Montgomery. Tried before the Hon. J. W. Lesesne.</p>

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

This was an application to the Orphans’ Court of Montgomery, for the final settlement of the estate of John S. Sankey, deceased. It appears that in January 1843, at the instance of the distributees and legatees, the executors were cited to appearand make distribution of the estate, according to the provisions of the will of said decedent.

Tried before the Hon. Geo. Goldthwarte. Trover by the defendant against the plaintiff in error for the conversion of several slaves. It appears from the bill of exceptions that the slaves belonged jointly to the plaintiff and his brothers, Alfred and John Kelly, and that the defendant obtained possession of them as the agent of Alfred Kelly, one of the joint owners, and as such agent sold them.

Tried before the Hon. Alex. McKinstry. 1. The general rule is, that words are not sufficient to reduce a killing to manslaughter. But to this, there are exceptions, and in the prisoner’s case, the jury from the whole evidence, should have been permitted by the court below to say whether thé prisoner’s case furnished one of the exceptions. — United States v. Meltberger, 8 Wash.

Tried before the Hon. Rob’t Dougherty. The indictment in this case was as follows: The grand jurors, &c.., “ upon their oaths present that Lovick P. Murray, late of said county, on the sixth day of June in the year of our Lord eighteen hundred forty-nine, in the county aforesaid, two certain slaves, to-wit, John and Alfred, the property of Jacob Inabinet, then and there being found, unlawfully and feloniously, then and there did inveigle, steal, carry and entice away, with a…

Tried before the Hon. Geo. D. Shortridge. Ejectment by the plaintiff against the defendant in error.

<p>Error, to the Circuit Court of Limestone. Tried before the Hon. S. C. Posey.</p>

<p>1. Whore the court cannot clearly see that a deed is fraudulent on its face»/ is it may submit to the consideration of the jury, as well the suspicious pro-l.¥2 visions of the deed, as the evidence tbat may be adduced to explain them, ,Jt, or to show the fraudulent intent; but if it be apparent from the deed itself1 that the object and design of its execution were to hinder, delay, and defraud creditors, the court is bound to pronounce it null and void.</p> <p>2. I.., being largely indebted, and having taken judgments, that had been rendered against him, to the Supreme Court for delay merely, executed to It. a deed of trust, to secure the payment of a debt of one hundred and fifty dollars due by him to C., and to indemnify C. and another as his sureties on certain debts, some of which were due, and others running to maturity. The property conveyed was of much greater value than the aggregate of the debts intended to be secured, and consisted of land, slaves, horses, cattle, cotton, lumber, house-hold and kitchen furniture, and a stock of goods, together with all the debts due the grantor, by note or' aocount, and amounting to more than seven thousand dollars. The deed provided that L. should remain in the possession of all the property, both real and personal, including the debts, and take the profits thereof to his own use, until default should he made in the payment of the debt due to 0., or until C. and his co-surety should be compelled by law to pay any of the debts for which they were hound, upon the happening of cither of which contingencies, D. was authorised to sell for cash all, or as much of the pro-.party as might be sufficient, first giving twelve months notice of such sale, aad from the proceeds to pay the debt due to C., or such part thereof as remained unpaid, and also such sums as C. and his co-surety, or either of them, had been compelled to pay, and thesui-plus, if any, after defraying the expenses incurred in the execution of the trust, was to' be paid over to L., the grantor. AfeZd — That the deed, as against the creditors of L., is fraudulent and void on its face. ’</p> <p>3. A purchaser is chargeable with notice of every deed, which constitutes a , necéssaty link in his chain of title, and if any such deed be cle'arly fraudu- "'' lent on its face, he is not entitled to protection as-a bona fide purchaser without notice.</p> <p>4. A deed for land, fraudulent on its face as against creditors, being void, a judgment afterwards rendered-against the grantor creates a lien, of which a subsequent purchaser from the grantee, and those claiming under him, are chargeable with notice, in the same' manner, as if the purchase had been . made directly of the original grantor.</p>

Tried before the Hon. N. Cook. The plaintiff sued the defendant in error on a note given for the purchase money of three slaves, which were sold by the former to the latter, with warranty of soundness. The case was tried on issues formed upon the pleas of non-assumpsit and failure of consideration. The points raised by the bill of exceptions will be understood from the opinion.

<p>Error to the Circuit Court of Chambers. Tried before the Hon. E. Pickens.</p>

This was a proceeding under the bastardy act, instituted iy Mary Ann Lawhorn against the plaintiff in error. The questions raised by the assignments of error will be understood from the opinion of the court.

Tried before the Hon. J. W. Lesesne. The bill in this case was filed by the plaintiff against Ne-smith & Snell, the defendants in error, and alleges that on the 9th Feb. 1838, be purchased of Nesmith three quarter sections of land at and for the price of one thousand dollars each, making in the aggregate three thousand dollars, for which he gave him his three notes for one thousand dollars, respectively, the one payable on the 1st January 1839, another on the 1st Jan. 1840,…

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

Tried before the Hon. D. G. Ligón. The original bill in this case was filed in the name of Samuel Green, as administrator of William Fagan, and also Silas Fagan, and in behalf of such of the heirs and legatees of William Fagan, sen., deceased, as should see proper to make themselves complainants, against John Ramey, sen., John Ramey, jun., and Caty Fagan.

Tried before the Hon. Geo. D. Shortridge. Dunlap sued out an attachment against Reuben Clements and caused it to be levied on a stock of goods, &c., which the latter replevied by giving bond with Elijah and James C. Clcm•entsas his sureties. Subsequently to this Dunlap also sued out an attachment against James C. Clements, and caused a portion of the same goods to be levied on and sold under it, before judgment bad been obtained in the first mentioned suit.

<p>Í. Where administration has been rightfully granted and is still pending in another State, a court of chancery here, although it may entertain a bill quia timet to prevent the destruction of assets of the estate that have been brought within its jurisdiction, will not proceed at the instance of the distributees to a final settlement of the administration, but will remit them for that purpose to -the tribunal, which has first taken cognizance of the cause.</p>

<p>1. Where a father, having executed in favor of his daughter on instrument, which is ineffectual as a conveyance, but of which fact lie is ignorant, immediately after her marriage delivers property to the husband under the impression and belief that such instrument secures it to her sole and separate use, and the husband accepts it with full notice and under a similar belief, a trust arises in behalf of the wife, which a court of equity will enforce.</p> <p>2. Although a bill is multifarious and is demurred to for th'at cause, yet if the parties proceed to a hearing and the chancellor, without noticing the demurrer, renders a final decree on the merits upon one matter alone, this court will presume the other portion of the bill, on whieli the objection was founded, to have been waived and abandoned in the court below, and will not dismiss the bill on the ground of multifariousness.</p> <p>8 An indebtedness accruing from a husband to his wife on account of her separate estate does not create a specific lien on his property, and cannot, therefore, be prefered in payment to debts due by him to third persons, who hat e acquired liens on such property by judgment and execution.</p>

Tried before the Hon. D. G. Ligón. ' The case of Beavers & Jemison v. Smith, 11- Ala. 20, decides that when an assignment cannot be made of a portion of the premises, the interest of one third part of the value thereof, at.the time of the alienation, is a just criterion, by which to measure the rights of the dowress, and in the same case, on page 451, the court say in reference to this rule that “ it is fair and just to. both parties, and in any series of years would be…

■ Error to the Chancery Court of Sumter. Tried before the Hon. J. W. Le.sesne. The bill shows that the right asserted is a fraud on the preemption law. The land was obtained by a contract, that;the eider Dial should have a moiety, entered into before a pre-emption certificate issued. — Martin v. Tennison, 13 Ala. 29; .12 tb. 667; 7 Port. 58; 2 ib. 148.

<p>Error to the Circuit Court of Madison. Tried before the Hon. L. P. Walker.</p>

Carothers and endorsed by Charles S. Patterson and Dennis Dent. The evidence shows that on the 5ih day of July 1841, after the maturity of the bill, which had been duly protested for non-payment, the defendant went into, the Bank and asked for the bill, which was handed him with the protest, and the defendant then wrote his name across the back of said bill.

Tried before the Hon. Geo. Goldthwaite. Ti-irs was an ejectment by the plaintiffs against the defendant in error to recover the possession of a lot or parcel of land described in the declaration.

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

This was a contest in reference to the proper construction to be placed on the last clause of the will of Alexander Martin. The words out of which the controversy arose will be found in the opinion. The court decided adversely to the grand-children of the testator, and they have sued out a writ of error to revise its decree. 1.

Tried before the Hon. Geo. D, Shortridge. This was an action of detinue brought by the plaintiff against the defendant in error to recover the possession of a slave. The plaintiff claimed title under an alleged parol gift from Joseph B. Chambers to bis gratad daughter, Frances McKewall, with whom the plaintiff intermarried in February 1847, and who died in the month of December following the marriage.

' Error to the Circuit Court of Lowndes. Tried before the Hon. Nathan Cook. The plaintiff in error, as administrator delonis non, with the will annexéd, of Richard S. Hickman, deceased, brought his action of detinue against the defendant in error, to recover the possession of a certain slave. The facts appear in the opinion of the court. 1.