Volume 19 — Alabama Reports

Tried before the Hon. E. Pickens. It was necessary that a threat should have been stated in tbe warrant, without it, the court had no jurisdiction to bind the party to the peace. — 40 Eng. Comm. Law, 124. Even if it could he aided by reference to the affidavit, it is not sufficient. — 5 Ala. ISO; The Statute, Clay’s Dig. 446. Judgment against the securities on the appeal bond is unauthorized and error. Clay’s Dig. 446, and 8 Ala. 731. 1.

UpoN points reserved as novel and difficult, from the City Court of Mobile. Tried before the Hon. ’Alex. MeKinstry. James Davis and George Ferguson were indicted in the City Court of Mobile, for obtaining money under false pretences from one Dr. M. Parker, who was examined on the trial, as a witness for the State.

Upon points reserved as novel and difficult, from the City Court of Mobile. Tried before the Hon. Alex. McKinstry. George Willims, James Davis and George Ferguson were jointly indicted in the City Court of Mobile, for grand larceny. The indictment charged them with having stolen from the person of one Doctor M. Parker a certain purse, whose value wag stated, and certain “ Bank notes” eo nomine, the number denomination and value of wMch were stated.

<p>ERROR to tbe Circuit Court of St. Clair.</p>

<p>EuRob. to tbe Circuit Court of Perry. Tried before the Hon. Geo. D. Shortridge.</p>

Error .to the Circuit Court of Chambers. Tried before the Hon. E. Pickens. 1. An indictment for assault-with intent to murder, does not charge a felony., unless- it alleges the means of the assault. — Beasley v. The State, Jan. Term, 1851. 2.

Tried before tbe Hon. Geo. D. Sliortridge. The defendant below was indicted for perjury.

ERROR, to the Circuit Court of Pike county. Tried before the Hon. Robert Dougherty. 1. When money is paid under a mistake of fact or false representation, it may be recovered back.^ — Martin v. Morgan, 5 Eng. Com. Law, Rep. 87. 2. Money paid under a mutual mistake of facts, there being no fraud, may be recovered back. — 1 Sup. U.. S. Dig. 192. 3. When an administrator of an insolvent estate has overpaid a debt, he may recover it back in assumpsit. — lb. 4.

Ennon to the Circuit Court of Talladega. The return' of the sheriff on the first writ shows that Davd A. Griffin was not served. The return of the alias shows that D. A. Griffin was not served with process until the 2d of September, 1850; consequently but one term of tbe court bas intervened since sucb service, and it was error to render - judgment against him at the appearance term, by default. — Clay’s Dig. 384, § 115.

Tried before the Hon. John J. Woodward, Tins was an action of covenant brought in the name • of the Governor for the use of Culbreath,.against the securities of a constable, on his official bond. The constable had levied two executions in his hands on a slave, and sold her after the return day of the executions. The slave brought more than enough to satisfy the executions, and this action is brought by the defendant in the executions to recover the residue.

<p>ERROR to the Chancery Court of Lauderdale. Tried before the Hon. D. G. Ligón.</p>

Tried before the Hon. Thomas A. Walker. Contract is to be construed most strongly against party giving instrument. — Pitman on Prin. & Sur. 38, (mar. 27,) 30 L„ Lib.; Platt on Cor., 3 ib. 63. The legal effect of the bond is an obligation to obtain titles and make them to plaintiff’s intestate, in a reasonable time, and the three years which elapsed upon the death of intestate was more than a reasonable time. — Garnett v. Yoe, 16 Ala. 74; Platt on Cor. 145; 3 L. Lib. 65.

Tried before tbe Hon. Geo. D. Skortridge. This was an action of trespass commenced by Cicero L. Kirk-sey, against tbe sheriff of Marengo county, for levying on a stock of goods which the plaintiff claimed as trustee under a deed of trust, executed to him by one Wm. A. D. White, to secure certain creditors.

Ehror to tbe Circuit Court of Blount. Tried before the Hon. W. R. Smith. This was an action commenced before a justice of the peace by Huffstutler, on an instrument in writing, for the payment of eighty-five bushels of corn; executed by Armstrong to plaintiff’s intestate. A verdict was rendered for the plaintiff before the justice, and the defendant appealed to the Circuit Court, where a new trial was had, and another verdict rendered for the plaintiff.

EmtoR to the Circuit Court of Lowndes. Tried before the Hon: Geo. GoMthwaite. Gilbert & Maddox brought their action of assumpsit against Hawkins, to recover damages for the breach of a written contract. The contract declared on shows that the parties' contracted to repair and carry on two mills, the property of the defendant, until July 1866, in partnership.

The Probate Court of Sumter, on the application of Johnson, admitted to probate as the last will and testament of James Thompson, deceased, an instrument in Avriting which is sufficiently described in the opinion of the court. The plaintiffs in error, as two of the heirs at law of said Thompson, contested the probate of the instrument in the court below, and bring the case to this court by writ of error to reverse the decree of the Probate Court.

Tried before the Hon. John D. Phelan. This was an action of assumpsit, instituted by Awbrey against the plaintiffs in error, on a promissory note alleged to have been lost, affidavit being made of the loss under the statute. The declaration contained a special count on the note and the common counts. The defendants demurred to the special count, and their demurrer being overruled, pleaded the general issue, on which a verdict was rendered against them.

Tried before the Hon. Thomas A. Walker. This was an action of debt, instituted by the plaintiffs against the defendants in error to recover a sum of money, which had been decreed by the commissioners who were appointed to make distribution of the estate of A. H. McKinney deceased, to be paid to Mrs. Allen (then Mrs. McKinney,) the widow of the deceased, by Mrs. Raney (then Susan McKinney,) one of the dis-tributees of the deceased. The declaration contained two counts.

Tried before the Hon. John D. Phelan. Daniel 0. Held: had been in the undisturbed possession and use of said way, “time out of mind.” This would be equivalent to twenty years possession, which, of itself, would make plaintiff’s right of way perfect. — See Am. Com. Law cases, 8th vol. 391; also, 2 Hill, S. C. 641. 4th. The statute was intended to reach and cover this very case.

Tried before the Hon. Robert Dougherty. 1. The execution not having been returned to court, the court had no jurisdiction of it, and could make no order touching or concerning it. The court will not interfere on motion to prevent the sheriff from selling, but the party having title has his remedy by action. — Hewson v. Deggert, 8 Johns. 333. 2.

There was no error in overruling the demurrer of defendant to plaintiff’s sci.fa., as it contains everything necessary to be set out in a declaration. — See Plarris’ Entries, 465 — see sci. fa. The plaintiff below bad the same right to recover Ms costs that he had to recover his debt.

<p>1. It is not necessary that the subscribing witnesses to a will should be informed of its contents. „</p> <p>2. To constitute undue influence, some act or acts must have been done to cause the testatrix to dispose of her properly contrary to her desire.</p> <p>3. When the court refuses to give a charge requested, the party wishing to revise such refusal must set out in Ins bill of exceptions so much of the evidence as will show that the charge requested was pertinent to the evidence, and was not abstract.</p>

ERROR, to the Chancery Court of Shelby. Tried before the Hon. W. W. Mason. Held: that said will conferred such a title upon plaintiffs, as would enable them to sustain their said action at law ; afterwards, complainant, in ignorance of the existence of any facts which would enable him to defeat said suit, made a compromise with plaintiffs, by which he agreed to let judgment go against him for the negro and costs…

Eiiítoit to the Probate Court of Talladega. P*aglaND, as administrator in. chief, cum testamento annexo, of James W. Milam, deceased, was cited by Jarvis J. Milam, the succeeding administrator, to appear and settle his administration on said estate.

Tried before the Hon. S. Chapman. This was an action of debt brought in the name of the Governor, for the use of Carver and Woolsey, against the securities of a justice--of the peace, on his official bond, to recover the amount of a promissory note placed in his hands for collection, by said Carver and Woolsey.

Tried before the Hon. Robert Dougherty. This was an action commenced before a justice of the peace, by the defendant in error, on his certificate of attendance as a witness on behalf of the State, in a prosecution against Nicolas. The suit ivas instituted after the conviction of Nicolas. Judgment was rendered in favor of the plaintiff by the justice. The case was taken to the Circuit Court by the defendant, where judgment was again rendered in favor of the plaintiff.

Eaitoit to the Circuit Court of Macon. Tried before the Hon. E. Pickens. This was an action of detinue, brought by Nelson against Iverson, to recover two slaves, which the plaintiff claimed under a parol gift from his maternal únele, Garland Dawkins.

<p>Error to the Circuit Court of Barbour. Tried before the Hon. Geo. Goldthwaite.</p>

ERrob. to the County Court of Sumter. It is settled by many authorities that in trover the plaintiff' may recover the value of the property at the time of conversion, or at any time between that and the trial. — Tatum v. Manning, 9 Ala. 144. — The case, White v. Martin, 1 Por. 215, only holds that slaves born pending the suit cannot be recovered, but this does not conflict with the principle above.

1. The judgment was rendered by default, before a declaration was filed, as appears by the certificate of the clerk, which states that the declaration was filed after the adjournment of the court which rendered the judgment. This certificate is part of the record. — M'cElroy v. Dwight, 1 Stew. 149. 2.

1. The purchaser of land holding a bond for title must have paid all the purchase money before he is entitled to a decree directing the administrator to convey. Held: that the original debt is gone by the acceptance on account of it of a note on a third person endorsed by the debtor, so that no remedy whatever can be had, except upon the endorsement. — Frisbie v. Lamed, 21 Wend. 452.

Tried before the Hon. D. G. Ligón. On the 6th of June, 1850, Stephen McBroom filed his petition in the Chancery Court of Madison, in which he alleged that a cause entitled “ In Re, estate of Wm.

Tried before the Hon. Jno. D. Phelan. Covenant by the plaintiff in error against the defendant, in a bond for sixty dollars, purporting to have been given for the hire of a negro. The circumstances under which the bond was executed sufficiently appear in the opinion. 1.

ERROR, to the Court of Probate of Limestone. The Court of Probate charged Sloan, on the final settlement of bis administration on the estate of Wm. L. Harris, deceased, with the sum of four hundred dollars, which lie had received in November, 1849, from an attorney in whose hands he had placed certain debts due the estate, while he was acting as administrator.

ERROR, to the Circuit Court of Marengo. Tried before the Hon. Jno. D. Phelan. 1. The charge of the court assumes that the giving of the note by Hunt and his promise, made some eighteen months af-terwards, to carry the gin to Greensboro’ to be repaired, was a waiver of all his rights under the written contract, and bound him to pay the entire note and interest, which is clearly erroneous.

Tried before the Hon. W. W. Mason. The demurrer to the bill should have been sustained by the court below— 1st. Because the bill did not state any disposition by complainants of the stock of shoes, &c. conveyed by Clough to secure their demands, or that the same was insufficient security.

EhuoR to the Circuit Court of Pickens. 1. The plaintiff insists that the statute set out in the replication does not.majke the plaintiff in error a free dealer ; and being in derogation of common law and common right, must be strictly construed. . 2.

<p>Error to the Circuit Court of Dallas. Tried before the Hon. Nathan Cook.</p> <p>Motion against a sheriff for failing to return an execution.</p>

Tried before tlio Hon. Samuel Chapman. This was an action of trover brought by the plaintiff against the defendant, to recover the value of a promissory note. On the trial it was proved that, the note was made by E. A. Montgomery, payable to John Newton or,order. It also appeared that this note was delivered to one, ivho was examined as a witness, to be collected, and the money to be applied to the payment of a judgment in favor of the witness against the plaintiff.

EiatoR to the Circuit Court of Benton. Tried before the Hon. L. P. Walker. This was an action of trespass to try titles to certain lands, instituted by the plaintiff against the defendant in error. The defendant claimed under a sheriff’s sale. 1. An order of the Circuit Court to sell land levied on by a constable under an execution issued by a justice of the peace, is not a final judgment, nor in the nature of such judgment. It is at most only a confirmation of the levy.

EititoR. to the County Court of Lowndes. 1. Held: that garnishment is a remedial proceeding, and it should be liberally expounded. Demands which ai’e not such as the defendant can sue in his own name, have been frequently subjected in garnishment proceedings. — Lucas & Brooks v. Goodwin, 6 Ala. 831; Marston v. Carr, 16 Ala. 325. 3.

Tried before the Hon. Nathan Cook. This was a trial of the right of property in certain slaves which had been levied on under an execution in favor of the P. & M. Bank of Mobile, and claimed by the plaintiffs in error. The jury found a verdict in favor of the Bank, and assessed the aggregate value of the slaves.

Tried before the Hon. J. W. Lesesne. The bill shows that complainant, Susan Gregory, before her intermarriage, was possessed of ninety-two slaves in tbe State of Georgia, and also of a quantity of stock, farming utensils, &c; also, to tbe remainder in several tracts of land, and other slaves in which Mary Ingram had an estate for life.

<p>1. The defendant, under the plea of set-off, introduced an account in his own handwriting against the plaintiff, on the back of which tbe plaintiff had written, that he never could admit such an account as the within, and that until the proof accompanied it he would not attempt a settlement with the defendant or any one else. He also proved the plaintiff’s admissions that there were unsettled matters of account between them. 'Held—</p> <p>1. That the account and endorsement thereon were inadmissible without further proof.</p> <p>2. That a charge “that if the plaintiff only denied the defendant’s accounts so far as to call for proof of the amounts, it was only such a denial as would put the defendant on the proof of them, and was sufficient to take them out of the statute of limitations,” was abstract, and therefore properly refused.</p> <p>2. A general admission of unsettled matters of account is not sufficient to take any particular account out of the statute of limitation, unless it is shown that the admission was made in reference to it.</p>

Tried before the Hon. S. C. Posey. 1. Libel has always been treated with sterner vigor than slander; “ because it must have been effected with coolness and deliberation, and must be more permanent and extensive in its operation than words.” — White v. Nieholls, 3 Howard’s (U. S.) Rep. 285. — Weir v. Hoss and Wife, 6 Ala. 881. 2.

<p>1. An assignment of accounts to be created in. future vests an equitable interest in the assignee, which will be protected in a court of law, when sued upon in the name of the assignor for the use of the assignee, but not as against a debtor who without notice of the assignment has acquired a legal set-off.</p> <p>2. When accounts to be created in future are conveyed by deed of trust, together with certain other personal property, the registration of the deed is not constructive notice of the assignment of the accounts. To prevent a set-off against them, the defendant must be charged with actual notice of their assignment.</p>

Tried before tbe Hon. L. P. Walker. The facts wbicb relate to tbe first point decided by tbe court, are set out at sufficient length in the opinion. Tbe plaintiff on tbe trial below introduced ber son, Edwin Spotswood, as a witness.

<p>EbeoR to the County Court of Tallapoosa.</p>

ERROR, to the Chancery Court of Madison. Tried before the Hon. D. G. Ligón. The final settlement of the estate of Wm. McBroom, deceased, by Richard B. Purdom and Thomas McBroom, administrators de bonis non, was commenced in the Orphans’ Court of Madison.

EeRoii to the Circuit Court of Randolph. Tried before the Hon. John J. Woodward. Where it is the duty of the Commissioners’ Court to make-an appropriation out of the county treasury and they refuse to do so on application, the only remedy is by mandamus. — See Cuthbert v. Lewis, 6 Ala. 262; Boone v. Todd, 3 Missouri, 140; Tarver v. Comm’rs Court, 17 Ala. 527.

Tried before the Hon. D. G. Ligón. 1. An order for leave to amend a bill by adding a plaintiff will not be granted after replication, or after publication, or after the lapse of a year after a trial and reversal of the decree in the Supreme Court, especially if the plaintiff has been guilty of laches. In this case the plaintiffs knew the matter of the amendment before the original bill was filed, and there is gross laches. — 1 Dan.

Tried before the Hon. John J. Woodward. 1. Opinions, belief, deductions from facts, and such like, are matters which belong to the jury, and by which they arrive at their verdict. When the examination extends to these, the judgment of the witnesses is substituted for that of the jury, and their province invaded. — 1 Greenl.

EkRoe to the Circuit Court of Tallapoosa. Tried before the Hon. E. Pickens. 1.

the Orphans’ Court of Madison. A decree was rendered in the Orphans’ Court against the administrator of Donaldson Turner, in favor .of “ the personal representative, or legal heirs entitled thereto (when ascertained) of Mildred Dupree, deceased.” A scire facias issued on this judgment in the nalne of Mildred L. Dupree and Ttebecca A. Turner, as heirs at law of said Mildred Dupree, deceased, and the judgment was revived in their names, and execution awarded.

Tried before the Hon. Thos. A. Walker. A motion was made by the Attorney General, in the name of the Governor for the use of the State, against Gee, as the tax-bollector of .Sumter county, and his sureties, for a failure to pay over moneys in his hands. The defendant introduced J. C. Vandyke, as a witness, who testified that the defendant had paid the money over to him, that he had received it as Comptroller of the State, and had deposited it in the Rank at Tuskaloosa.

Tried before the lion. J. W. Lesesne. . This was a bill to foreclose a mortgage, filed by the defendants in error. One of the mortgagors had died, and his interest in the mortgaged premises had been sold by an order of the Orphans’ Court. Hall, the purchaser at the sale, was made a defendant to the bill, and answered, but the complainants dismissed their bill as to him, and a decree of foreclosure and sale was rendered without him.

Ehroh. to the Circuit Court of Macon. Tried before the Hon. E. Pickens. 1. The parol testimony was inadmissible, because it wholly destroyed the legal effect of the writing, in the view taken by the court; and secondly, a contract cannot be partly in writing and partly by parol. If the parol testimony did not destroy the effect of the writing, it completely changed its legal effect.

<p>EhRob. to the Circuit Court of Tuskaloosa. Tried before the Hon. Geo. D. Shortridge.</p> <p>cited — Clay’s Dig. 206, § 28; ib. 207, § 31; Taylor v. Acre, 8 Ala. 491; Wilson v. Collins, 9 Ala. 127; Van Cleave v. Haworth, 5 Ala. 188; Shackleford v. Miller, 18 Ala. 675.</p> <p>1. The bill of exceptions shows no error that can be noticed by this court, because both the objections named in the bill of exceptions are general objections merely for supposed irregularities in the proceedings before the justice of the peace, without pointing out and showing in what the supposed irregularities consisted. The court below, therefore, was not bound to notice the said objections, and properly overruled them.</p> <p>2. If the objections consist in any supposed variance between the warrant and the judgment entry, and executions, as to the names of the parties, it is sufficient to say, that advantage could not be taken of that, on a motion for an order to sell the land levied on; such an irregularity could only have been reached by an appeal, or on certiorari. The supposed variance would at most make the judgment erroneous, and subject to be reversed, but not void; the execution was, therefore, rightfully issued and levied, and if so, the order to sell was properly made.</p>

<p>1. The liability of the sureties of a county officer does not cease upon their application to the County Judge to require a new bond from the officer, but continues until the-new bond is given, or until the office is declared vacant on account of the officer’s failure to give it.</p>

Tried before the Hon. R. Dougherty. Assumpsit by Coster against Brack, as administrator of Gains Brack, deceased, to recover the amount of a promissory note, executed by the intestate to said Coster.

EreoR to the Chancery Court of Talladega. Tried before the Hon. W. W. Mason. It is shown by the bill that Willis Wood was indebted to the Branch Bank at Montgomery by two promissory notes, one for three hundred and seventy-five dollars, due June, 1840, and the other for two hundred and seven dollars, due in June, 1889; and that Henry G. Woodward, Matthew Wood and John Casey were his securities for the payment of them.

ERROR, to the Circuit Court of Perry, Tuts ,was an action of debt instituted by Wiley against the plaintiffs in error.

Tried before the Hon. John D. Phelan. The only question made on this record is, was the money at the time it was paid, lawfully paid by the plaintiffs in error, to Boyd, the payee of the note? The question is not decided against tbe plaintiffs in error, by bolding that they were the agents of the defendants in error by receiving the note of them. This is undoubtedly true in one sense, but were they not also the agents of Boyd to whom the note was made payable'?

<p>1. When the bill of exceptions states that “the defendant then read s> transcript in the words and figures following,” but the transcript is not set out, and the clerk certifies that it is not on file in his office,, -a transcript which is afterwards sent upon certiorari, and which, cannot be identified by any reference to it in the original record,.musí-be rejected as forming no part of the bill of exceptions.</p>

<p>Eb-Rob. to the Chancery Court of Sumter. Tried before tlio Hon. J. W. Lcsesno.</p>

<p>ERROR to the Circuit Court of Mobile. Tried before the Hon. John Bragg.</p> <p>This was a petition by the plaintiff in error to the judge of the sixth judicial circuit, for a supersedeas to restrain the execution of writ of habere facias possessionem, which had issued on a judgment to which she was not a party. The petition alleged that she claimed title to the premises, but did not set out her title. It also alleged that she had no notice of the pendency of the suit in which the judgment was rendered on which the writ of possession issued, and that her title was in no wise connected with that- of the defendant in that suit. The judge granted the order for the supersedeas in vacation, and the petition was after-wards dismissed on the demurrer of the plaintiffs in the judgment.</p> <p>Judgment in ejectment is binding only on the parties thereto and their privies, and under a judgment by default against the casual ejector, a person in possession, a stranger to the action, cannot be ousted. — Howard & Holman v. Kennedy’s Ex’rs., 4 Ala. 592. And where one who is not bound by a judgment is ousted by a habere facias possessionem, a writ of restitution is the proper remedy.- — -lb.</p> <p>The case was taken from the docket in 1842, and did not appear again until 1848. This was a discontinuance, which would have rendered the judgment erroneous even against the parties on the record, and if so, the court would not permit an execution to operate against a stranger to the action. — Kennon v. Bell, Ala. 98.</p> <p>The petition and supersedeas were properly dismissed. There was no proceeding before the court which the plaintiff was called on to answer or defend against. The petition bad done its office ; it was not a pleading to wbicb the plaintiff could plead. No motion was made, and no proof produced, either at the first or second term. There was no other course than to dismiss tire petition. The petition itself contains no merits. It does not set out petitioner’s title ; she admits that she came into possession long after the suit was brought, and that Auld was in possession at the commencement of the suit. She cannot claim tho benefit of any irregularities in the proceedings against Auld, unless she had a right to defend. As to who may be admitted to defend, see Adams on Ejectment 254, and the American notes and cases there referred to. The petitioner alleges that her claim and possession are totally disconnected from that of Auld. No one can he admitted to defend under any circumstances, whose title is disconnected from, or inconsistent with that of the tenant in possession. — 1 Bibb 128; 1 Green 66 ; 5 Mun. 539 y 1 Caines’ R. 151.</p>

1. “ By the 3rd section of the bankrupt act of 1841, not only tho property in possession, but actions ponding, and mere rights of action, of every one who is regularly declared a bankrupt, vest, eo instanti, in tho assignee appointed for that purpose.55— (Butler and Wife v. Insurance Company, 8 Ala. 146 ; Reavis y. Garner, et al. 12 Ala, 661.) 2.

Tried before the Hon. Geo. Goldthwaite. 1. If Strickland, after his purchase, bad gotten peaceable possession of the land, tbe defendant, Nance, could not have recovered against bis documentary title. Then why defeat an action upon the same facts % The rule should work both ways. — • See Hallett v. Eslava, 2 Stew. 115. 2. A sheriff’s deed is conclusive, except for fraud in its execution. — Love & Williams v. Powell, 5 Ala. 58. 3.

<p>Error to the Circuit Court of Tiiskaloosa-</p>

. Tried before the Hon. Samuel Chapman. This was an action instituted by the defendants in error against the plaintiff, to recover the amount of a promissory note which he had executed to them for medical services rendered.

<p>I. A certiorari to review the judgment of a justice of the peace cannot be regularly sued out after the expiration of three years from the rendition of the judgment. • ^</p>

<p>1. When a cause has been transferred to the Circuit Court, under the act of February 11,1850, (Pamphlet Acts, p. 34,) after the appearance term of the County Court, it is not erroneous to enter judgment by default at the first succeeding term of the Circuit Court.</p>

EbeoR to the Circuit Court of Tuskaloosa. Tried before the Hon. Geo. D. Shortridge. This was an action of trespass brought by Clements against Cribbs & Covington, to recover damages for taking away and converting certain goods, wares and merchandize, alleged to be the property of the plaintiff. The defendants’ pleas, which were demurred to, are stated in the opinion of the court. 1.

Tried before the Hon. Samuel Chapman. 1. The plaintiff in error insists that there is error in the record in this, that the said James Hair revived a suit and took a judgment in his own name as the administrator of John S. Ar-rington, who was executor of Henry Arrington, whereby the proceeds of the judgment would appear to be assets of the estate of said JohnS., when the record plainly shows that the proceeds of the said judgment ought to be assets of the estate of said…

Tried before the Hon. S. C. Posey. 1. When the plaintiff, in such actions as this, rests his title upon a sheriff’s or marshal’s deed, he must show as a proper foundation of his title, a judgment, execution thereon, a levy and the sheriff’s or marshal’s deed. — Ware v. Bradford, 2 Ala. 676; Wheaton v. Sexton, 4 Wheat, 508. 2.

ERROR, to the Circuit Court of Mobile. Tried before the Hon. John Bragg. The plaintiff contends there was error in the court below in excluding the judgments in the County Court. Those judgments it is admitted were irregular, but there is no foundation for the argument that they were void. The court had jurisdiction of the garnishee by the summons of the garnishment, and no judgment against him could be resisted as a nullity.

To authorize a judgment of non pros, it should appear, that '■■notice of the appeal has been served on the appellee as the ■statute directs, (Olay’-s Dig. 315, § 17.) — -Wyatt vs. Avery, 1-1 -Ala. 58G. In this case no notice vras given.

Tried before the Hon. Robert Dougherty. The material facts of the case, and the first charge of the ••court, are set out at length in the opinion of the court.

Ereor 4o the Chancery Court of Dallas. Tried before the TIon. W. W. Mason. Held: that a bill will be dismissed if there is a failure to prove the case as to any of the complainants.

EerCR, to the Orphans* Court .of Lowndes. David Hughes, guardian of Flora Ann Ringstaff, was cited by Daniel Mitchell, the succeeding guardian, to make a final settlement in the Orphans’ Court of- his said guardianship. Several exceptions were taken by Hughes to the decisions of the Orphans’ Court,, which are now assigned as errors.. 1.

Tried before the Hon. Geo. Goldtkwaite. 1. In cases of application for the satisfaction of judgments, the affidavits of parties are competent evidence, and are sufficient to prove payment, unless the facts are controverted by the oath of the opposite party. — Faulkner & Faulkner v. Chandler, 11 Ala.725. The truth of the affidavits is not controverted by the oath of the opposite party, or by other testimony. 2.

EeRok to tiie Probate Court of Lowndes. Guardians’ accounts and settlements are .placed on the same-footing as those of administrators. — Clay’s Dig. §-27, 226; ib.. § 38, 304 ; ib. § 42, 304. Settlements of Harrison and Larkins, in October, 1840, were ■defective, and werenot evidence, and the same as to that of Harrison, in October, 1840. — Ashley v. Ashley, 15 Ala. 75; Willis v. Ashley, 16 Ala. 652.

Tried before the Hon. John Bragg. The plaintiff as administrator of George M. Rives, deceased, declared upon a writing obligatory, bearing date the --day of-, 1845, but averred to lrave been executed on the 1st day of September, 1845, whereby the defendant acknowledged himself to be held and firmly bound unto the plaintiff in the sum of twelve thousand dollars, to be paid to him.

<p>1. If the complainant is not entitled to relief upon the original bill, matters which subsequently occur, and which are averred by way of supplemental bill, cannot cure the defect.</p> <p>2. When a remainder man files a bill quia timet, to protect his interest in certain slaves, an allegation in the bill that one of the defendants seized upon, and took possession of the negroes, from and out of the possession of the tenant for life, and that he has ever since exorcised, and claims to exercise full control over them, and has placed them in the possession of another defendant, who still retains them, does not warrant the presumption that he took them as a trespasser, or that he holds them otherwise than in subordination to the true title.</p> <p>3. A remainder man cannot complain of a trespass upon the tenant for life, unless such trespass in some way endangers his remainder.</p> <p>4. Every fact essential to entitle the complainant to the relief which lie seeks, must be averred in the bill, and relief cannot be granted for matters not alleged, although they may be apparent from other parts of the pleadings and evidence.</p>

<p>EaRoa to the Chancery Court of Lauderdale. Tried before the Hon. D. G. Ligón.</p>

<p>1. Trespass is the only remedy for damage occasioned to the plaintiff by the malicious act of the defendant in causing an execution issued against a third person to be levied on property belonging to the plaintiff.</p> <p>2. An action does not lie to recover damages for the- malicious act of the defendant in suing out an injunction against .the plaintiff, until the injunction is finally disposed of, or until the suit in which it was sued out is terminated.</p>

Tried before the Hon. J. W. Lesesne. 1. The proof shows that the defendant is guilty of cruelty in a legal sense, both in threats and kicking his wife. — Moyler v. Moyler, 11 Ala. 620 ; Otway v. Otway, 1 Eng. EecL R. 200 Hulme v. Hulme, 2 ib. 208-9; D’Aquilar v. D’Aquilar, 8 ib. 329; Shelford on Marriage and Divorce, (marg. p.), 425,43& & 430. 2. One act of cruelty is sufficient. — Popkin v. Popkin, 3 Engv Eccl. R. 325 and notes. 3.

EitRos. to the Circuit Court of Talladega. Tried before die Hon. E. Pickens. 1. The interest of James A. H. Givens having been first -shown alittnie, it was erroneous to allow him to prove that he had released. — Dent v. Portweod, 17 Ala. 242. 2.

ERROR, to the Court of Probate of Dale county. On the 14th August, 1849, a decree nunc pro tunc was rendered as of the March term, 1848, by the Court of Probate of Dale county, in favor of Isaac Metcalf against John and Mary Metealf, administrators of Anthony Metcalf, for the amount of his distributive share of the estate of said decedent.

EeRoe to the Circuit Court of Butler., Tried before the,: Hon. Nathan Cook.. Wesley Rodgers and: William Leaird were arrested under a' warrant issued by a justice of the peace, at the instance of William' Long, charging them with having unlawfully taken from his premises his daughter,, and detaining her with intent to carry her' out of the limits of the State against her will and consent;. After the termination of the prosecution,.

Geo. Goldthwaite. Assumpsit by Hammond against Henderson, on a written ■contract, executed between the plaintiff on one part, and… Held: at which election the ¡plaintiff voted. Complaints wore made to the trustees «¡gainst the plaintiff, on account of which there was a disagreement between them. “ The plaintiff refused to be governed by the ¡action of the trustees, and denied their right to control him-The said trustees thereupon 'discharged him as the teacher of said…

ERROR, to the Circuit Court of Bibb. Tried before tlie Hon. John D. Phelan.

<p>ERROR to the Chancery Court of Benton; Tried before the Hon. D. G. Ligón.</p>

Eehor to the County Court of Pickens.- Assumpsit on a promissory'note executed by the plaintiffs in' error, of which the following.is a copy: u For and in considera-tion of services to be performed by H.-W. Ellis and Isham H. Kelly, attorneys at law, &c.,-in a certain suit in chancery hereafter to be instituted in our behalf against David Sloan to remove • him as trustee,- &c., we promise to pay to them on the first day of’ January, A., D. 1842, the sum of two hundred…

Tried before the Hon, Thomas A- Walker. This was an action of detinue for the recovery of two slaves, instituted against Turner, in October, 1847, by Joseph F. Fen»her, Thomas B. Fenner, Julius Johnson- and Mary, his wife-,» formerly Mary Fenner, and Thomas Bv Fenner,- who- sues as next friend for Richard H.,- Margaret E., Ann- M.- and Lucy M. Fenner, minors under the age of twenty-one.- The plaintiffs claimed under the will of John- Howson,- which they proved had been duly…

Tried before the Hon. J. W. Lesesne. This was a bill filed by the wife against her husband, alleg • ing cruelty, abandonment and adultery on his part, and praying a divorce a vinculo matrimonii. The bill alleged that a short, time before it was filed, complainant had offered to return to her husband’s house, and that her offer had been rejected by hint. The chancellor granted the prayer of the bill, ar:d also decreed alimony to the complainant out of her husband’s estate.

’ERROR, to the Circuit Court of Shelby. Tried before the lion. Geo. D. Shortridge. Upon the petition-filed and the court assuming to act upon it, the Orphans’ Court accpiired jurisdiction, and its proceedings, no matter how irregular, cannot be collaterally impeached while they remain unreversed —Wyman y. Campbell, 6 Por. 219; Duval v. McLosky, 1 Ala. 708-; Calhoun v. McCarlny, 11 ib. 110.

Emtoit to the Circuit Court of Mobile, Tried before the Hon. John Bragg. An execution was issued from tbo County Court of Mobile-county, in favor of A. Wolfe, against A. F. Edwards, which was levied by the sheriff on a negro man named Jerry, as the property of the defendant. A claim was interposed by Cuth-bert, as trustee for Mrs. Edwards,, and bond given to try the right of property, as provided by the statute.

Tried before the-Hon. John Bragg. The act of 1822 confers no title on the defendant in-error,' or those under whom be holds ; it is nothing more than a relinquishment of any claim on the part of the government, and both parties in this case must depend upon their rights, independent of the confirmations.' — Eslava'-v. Farmer’s Heirs, 7 Ala. 558; S. C. 11- ib. 1028; 2 How. U. S. It. 285> 8 Ala. 47.

Emiob. to the' Chancery Court of Wilcox. Tried before the Hon. J. W. Lesesne. The allegations of the; bill, so far as, they,,are ..material to th.e questions of law raised in this case, may he thus stated : The complainant became the security of Harris Smith Evans upon a .note to Sanford Cooley, for $1,127 59, due at twelve months from date, and also became the joint security with said Harris Smith Evans, for one Ellison, on a note of $2,000.

Tried before the Hon. J. W. Lesesniri This caso waS'before: the Supreme Court at-the June Term 1846, and is reported in 10 Ala. 102.

EeRob, to the Circuit Court of Mobile. Tried before the-Hon. John Bragg. This was an action of ejectment, brought by the plaintiffs to-recover of the defendant a, lot of land in the city of Mobile, situated on the North side of Dauphin street, between Royal street and the river.

EeuoR to the Circuit Court of Talladega. Tried before the Hon. John J. Woodward. This was an action of detinue instituted by the plaintiff in ■ error, as executor of Kinchen Carr-, deceased, against Remson, for the recovery of a negro girl named Lucinda. The plaintiff .produced a certified copy of the last will and testament of said Carr, which was duly admitted to probate in Habersham county, ■Georgia.

EekoR to the Chancery Court of Groene. Tried before the Hon. W. W. Mason. The bill in this case was filed by the children of George. Hayes, deceased, against William P. Gould,. Ms executor, after his removal from office. The bill charges the executor with waste, negligence, &c., and prays an account of the assets that have come to his hands.

Tried before the Hon. John Bragg. The opinion in this ease decides that-.'tbe-action is-a writ -of ■entry sur disseizin, and not u, writ of right.

Tried before-the Hon. J. W. Lesesne. CcoiDwm et. als., who were all judgment creditors of the Mont.gomery Rail Road Company, afte? exhausting their legal reme* dy against the Company by executions returnedno property found,” filed this bill against Abner McGehee, T. M. Cowles and others, stockholders in the Company, for the purpose of s4!> .jecting their indebtedness to the Company to the satisfaction of complainants’ judgments.

J. W. Lesesne. Thomas J. Brewer filed his bill against George W. Brewer .•and Benjamin F. Logan in the Chancery Court at Livingston. The bill alleges that in 1834 the complainant was in possession -of a certain quarter section of land to which he had a pre-emption right; that being unable to pay the entrance money, his brother Gee. W. Brewer agreed to pay it for Mm, .and let him .redeem it when able; that Geo.

ERROR 'to the Cirbuit Court of Marengo. T.riejd before the Ilbn. Geo. I). Shortridge: ' 1. All the title of the plainfiff below was derived from the order or decree of a register, ‘the mere cleric of a Chancery Court, and the statute^ under which the register acted are void. The people of Alabama, in forming their government, took great pains to keep the legislative, executive and judicial functions separate. Upon' ‘this point the constitution is remarkably eihpliatic.

ERROR, to the Court of Probate of Dallas. I. The court below erred in admitting as evidence the Alabama divorce and proceedings connected with it. 1. Harriet Harrison is .not Harriet F. Harrison. — See Poyin-ter on M. & D., 10, (Note F;) 2 Ecc. R. 121. 2. The insertion of the letter “Y” was fraudulent; the notice was by publication. Defendant could not answer hill by that name.

'Tried’before •the Hon. Thomas A. Walker. The Solicitor of the-Fourth Judicial Circuit sued out a scire facias in the name of the State against the defendants, to show cause why a forfeiture of-their .charter should not be declared.

Tried1 before the Hon. J. W. Lesesne. This was a bill for a divorce by Albert G. Wray against his wife, Susan M. Wray, on the ground of adultery. The defendant in her answer denies the adultery.

'Tried before the Hon. Sam’l Chapman. The defendant below was indicted for resisting process. admitted that the demurrer to the indictment ought to have been sustained.

<p>Error to the Circuit Court of Barbour. Tried before the Hon. John D. Phelan.</p> <p>cited The State v. Terry -et al. 4 Dev. & Bat. 186, and Commonwealth v. Saunders, 5 ¡Leigh, 751.</p>

Tried before the-Hon. John D. Phelan. 1- The indictment-is bad for uncertainty». The allegation is that the playing took place at a public? place, without 'designating .the character of the public place. The rule is, that where a general term is used in a statute creating an offence, in connection with words more precise and definite, the indictment must charge the offence in the particular words used in the statute. — The State y. Raiford, 7 Port. 101; The State v..

<p>Emtoit- to the Circuit Court- of Covington. Tried before the Hon.-E. Pickens..-</p>

Ekuor to the Circuit Court of Conecuh. Tried before the Hon. E. Pickens. 1. No person can be prosecuted in this State for any offence, except by indictment.- — See Bill of Rights, sec. 12; Constitution of Ala., sec. 10, (Clay’s Dig.,) and The State v. Middleton, 5 Por. 4-84. 2.

E'feROR to the City Court of Mobile. Tried before the Hon. Alexander McKinstry. 1. The Criminal Court' of Mobile County cannot at an adjourned term originate an indictment against a prisoner under its original charter. — Acts 1846 ; 5 Mass. 435 ; Clay’s Dig¡ 202, § 20-1; 6 Wheat. 106-. 2.

Tried before the 'Hon. E. Pickens. 1. The- .ancient rule was, that-.jn iconics, particularly of .the . higher grades, tho prisoner was not permitted to njake consent? which operated to Ms prejudice. The modern rule has relaxed ¡the principle, only so far as to allow him by express consent to ■waive any of his rights. 2. In this case the defendant was indicted for two distinct .felonies in one indictment.

Tried before the Hon. John D. Phelan. 1. The indictment in this case is framed under the 16fch section of the 6th chapter of the Penal Code, (Clay’s Dig, 484) and is defective and insufficient in not setting forth the facts and circumstances constituting the offence. 2.

Alex. McKinstry. A grand jury of good and lawful men of tbe county for which, the court is held, shall be returned agreeably to law, at each term, who shall… Held: shall be returned agreeably to law, at each term, who shall inquire and true presentments make of all crimes, &c., committed in their county, and such offences the court has jurisdiction to try, — Clay’s Dig. 294, § 32. An indictment, in its caption, must state the jurors by whom it was found. — Wheat. Crim.

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

W. R. Smith having refused them bail. 1. The papers accompanying the petition do not present the case in such form that this court can revise the decision of the court beloAY. The certificate of the judge does not describe the transcript with sufficient particularity to identify it. — Minor’s Ala. 413'; 12 Ala. 58. There is nothing to connect the certificate of the judge with the petition. Neither one contains any reference to the other.

Tried before the Sion. Geo. D.. Shortridge. 1. The prisoner ought not to have been tried the second ¿time. The discharge of the jury for no better reason than that They could not. agree, is not authorized by law, and the prisoner .-cannot be legally tried again — See Ned.v. State, 7 Por. 187» ,In principle this case cannot be distinguished from the case cited .from 7 Por. 187.

to obtain the discharge of the petitioners from imprisonment, bail having been refused'them by the Hon. Alex. McKinstry, Judge of the City Court of Mobile. The rule of the common law is “that no-person shall be adjudged by any act whatever to kill another, who does not die thereof within a year and a day after the stroke received.”■ — -1 Russel on Crimes, 428.

Ekrou to the Circuit Court of Conecuh. Tried before1 tile-Hon. E. Pickens. The plaintiff in error was indicted, under the act of 1850, for keeping a hotel without license.

Tried before the Bon. John Bragg. 1. The act of 1840 is repealed by the act of 1848.' A subsequent statute will control a former act which is repugnant to it, and it makes no difference that one is a general act and the other special. — -21 Pick. 878; 4 ib, 899; 3 Ala, 626; 3 Me-Lean, 212; 7 Blackf. 314,; 7 Mass. 140 ; 12 ib. 545 ; 1 Ash: mead, 179 ; 10 Pick. 39; 20 ib. 407. The language of the act of 1848 is plain and unambiguous, and leaves no room for construction.

EanoR to the Circuit Court of Dallas. Tried before the Hon. Geo. Goldthwaite. We contend that the lex rei sites, and not the lex loci con* tractusj must govern. Giving operation to a foreign law, rests in mere comity. All that relates to the remedy must be determined by the lex fori. Pickering v. Fisk, 6 Ver. 102 j 2U. S. Dig. 437, § 24.

that the estate was out .of debt and in a condition for distribution. The petition was opposed by the administrator on the .ground that the .petitioner at that time was .not entitled under the will to any part of the estate except the sum of $5, therein bequeathed to him.

EnaoR to the Court of Probato of Mobile. The plaintiff in error filed a claim against the estate of Tho. iCasey, deceased, which had been declared insolvent. The claim ■was a partnership debt against tho firm of .¡Greene, Casey &. James, of which Thomas Casey was proved to be a member. It was also proved that Greene and James, tho other partners, were insolvent.

Tried before the Hon. Alexander McKinstry. In eases of appeal from justices’ courts, if the amount in controversy he over twenty dollars, there must be a statement of the cause of action, and though such statement is not required to be in conformity with technical rules of pleading, yet it should sot forth a substantial cause of action, and contain the material facts of a declaration. — 4 Por. 509 ; 1 Ala. 297 ; 1 Stew. 260, No amount is mentioned in the statement in this…

Tried before the Hon. John Brass;. This was an action on the case by Sanford r. Ewing, to recover damages for a malicious prosecution. The affidavit made by Ew’ing to procure Sanford’s arrest is sufficiently described in the opinion of the court. Sanford was committed by the magistrate, and was afterwards discharged on habeas corpus by Judge Bragg.

<p>t . An acknowledgment in writing by a married woman that an act-count for medical services, which is made out against her individually, is just and correct, is tantamount to an express promise in wiiting to pay, and creates a charge upon her separate estate.</p>

<p>Eb.Ror to the Circuit Court of Tallapoosa.. Tried before ■ the Hon. John J. Woodward.</p> <p>Detinue for a slave by Sealy Jordan, wife of Elijah Jordan... who sues by her next friend, Charles Jordan, against Gray. A demurrer to the declaration was sustained by the court below.. Two declarations are set out in the record, to the second of" which the following certificate of the clerk is prefixed: “ After the adjournment of the court plaintiff proposed to file the following as the amended declaration under the leave given to amend,., and to which the second demurrer was sustained, it then being-considered by the court filed though not actually done, but defendant objecting because it was not filed within the term, plaintiff was not allowed by the clerk to file the same as a part of the record in the case, but at his instance it is sent up with the record and certified with the above facts.” The record does not otherwise show that leave was given to amend after the judgment on demurrer, and but one demurrer and judgment thereon arc set out.</p> <p>cited! Chitt-y’s Pleadings, 887; 9 Ala. 855.</p> <p>cited 1 Black. Com. 3-17-8 ;• 2 Kent’s Com. 154-5; Clancy on Hus, & Wife, 54; 1 Chitty’s PI.. 28; Dan. Ch. Pr. 189; Story’s Eq. PI. Gl-2; 14 Ala. 740.</p>

EeRos to the Court of Probate of Marengo. On the final settlement of the estate of Reuben Vaughan, deceased, at the June Term, 1849, of the Court of Probate of Marengo county, a decree was rendered in favor of R. V. Montague and wife, A. J. Kidd and Wife, Henry Dugger and wife, Gaskett and wife, and White and wife, for the respective distributive shares of the wife.

Error.to tbo Circuit Court of Coosa. Tried before ithc Sion. Geo. D. Shortridge. This was an action of debt, instituted in thb name ®f the •.Governor,.for the use of Reuben A. Mitchell, paymaster of the sixty-eighth regiment of Alabama Militia, against the sheriff of • Coosa county and his sureties on his official bond.

EeRob. to tbe Circuit Court- of Dallas. Tried before the Hon. E. Pickens. 1. The statute of redemption suspended McNair’s title for two years after the register’s sale, and upon his paying ■ the money and 10 per cent., he fell back on his old title from Calhoun. There are many reasons why this construction should be. given to the act. Unless, the act operated a suspension of title, the purchase at register’s sale would give an indefeasible title to the purchaser.

EmtoR to the Chancery Court of Barbour. Tried before the- Hon. J. W. Losesne. 1.. Under the marriage settlement, Boothe,, the husband,’, retained an interest for life in the property, therein mentioned. The deed recites that the property is to be and remain in possession of Boothe, fon the benefit of the parties. — 15 Ala. .169. The property was to bo held by Boothe, for the “ benefit of the partiesthat is, for the benefit of the parties to the deed.

Eekor to tbe Circuit Court of Benton. Tried before tbe 3íon. L. P. Walker. There can be no valid objection to this as a statutory bond. It is a literal transcript of tlte form prescribed by tbe statute in every particular. True, tlie term treasurer does not immediately follow -the name of the obligor, nor does it appear in tbe form laid down in the statute But tbe bond affirms en its face that it was a treasurer’s bond. -It imposes duties .required of no other officer.

- Tried before the’ Hon. Goo. Goldthwaite. 1. When joint trespassers are sued jointly and plead separately, or are sued separately, plaintiff may recover against both^ but can have but one satisfaction. — Knickerbocker v. Colver, .8 Cow. Ill; Livingston v. Bishop, 1 J. R. 290; Lansing v.Montgomery, 2 ib. 382;- Layman et als. v. Hendrick, 1 Ala.-212.

-The declaration is bad — 1st. Because it should have been' iii the name of the successor of Fitzpatrick. — 4 Wend. 406. 2, Because there is no averment that the defendant, Hoskins, was called to appear according to the tenor of the bond. — 4 I\. Hamp. 866. The ruling of the court below on the second plea was erroneous, as the judgment thereon was not rendered upon a default of i-iie defendant, Hoskins, to appear, hut upon his not abiding the order of the court.

1 ERROR, to the,Circuit Couyt of Talladega. Tried before the /Hon. E. 'Pickeng. .This was an action to recover damages for. the wrongful and ■-.vexatious suing opt of an attachment by ¿Hudson against Yar-abrough. The attachment w;as issued on ..-2d February, 1848. .At the trial the -defendant offered..in evidence, after proving its , execution, a deed.of trust executed-by .plaintiff, dated./January 18, 18.48, to secure a debt due to his brother, L. Yarbrough.

Tried before the Hon. J. W. Lesesnc. 1. Where a father has not the means or ability to maintain and educate his child, and when such child has a large separate estate, yielding a handsome income, a portion of that income should be allowed to the father to pay the expenses of educating tlie child. — 2 Story’s Eq> Juris. § 1354, 1354 (a); 3 Dan.

EuRait. ;to tbe Circuit Court of Mobile. Tried before '¿Hon. John Bragg. This was an action of covenant on a lease of real estate be-,' longing to the Bank, to recover the rent thereby reserved. Judgment by default was taken against the defendants. The appellants contend — 1. That the declaration is insufficient to support the judgment.

Enuoa to the Circuit Court- off Covington. Tried before the ' Hon. -E. Pickens. ■ This was an action of assuiUpsit by the' plaintiff in error against the defendant, to recover on the common counts, for ser- ■ vices rendered as an attorney and counsellor at law. The plain- - tiff’s witnesses testified that his-services were worth one hundred'-5 dollars, exclusive of the tax fees, -which amounted to one bun- • dried and ’-thirty-five, -and which'-the plaintiff had received.

The plaintiff in error filed in the Orphans’ Court a, claim against the estate of Thomas Casey, deceased, which had been declared insolvent, but the claim on final hearing was rejected by the court.

. Tried before the-Hon. W. W. Mason. The hill alleges that Robert Gantt, the father of complainants, duly executed his last will and testament, which, after his death, was admitted to probate in the proper county. By said will the testator bequeathed certain slaves to his wife during her life or widowhood, with remainder to complainants.

<p>1. .When a judgment is rendered by a justice of the peace and the case is taken by certiorari to the Circuit Court, the certiorari should not be dismissed because the penalty of the bond is less than the amount prescribed by the order of the judge by whom the writ was granted.</p>

EiuioR to the Chancery Court of Dallas. Tried before the Hon- W. W- Mason.

<p>ERROR to the Chancery Court of Dallas. Tried before the Hon. W. W. Mason.</p>

<p>Error to the Chancery Court of Lowndes.- Tried before the Hon. J. W. Lesesne.-</p> <p>L'Ateñberg & Co.- filed this bill against Mrs.- Louisa L. Collins et als< for the purpose of enforcing out of her separate estate the collection of a promissory note which she had executed for goods, wares and merchandize furnished by complainants to her and her family. Wiley Collins,the husband of Mrs. Louisa Collins, bad conveyed his entire property, consisting of negroes and other personal property, to a trustee, in trust, after the payment of ail the debts which he then owed, “ for the sole and exclusive use, benefit, maintenance and support” of his said wife and such children as they then had or might afterwards have, “and to tho survivor or survivors of them for and during the natural life of him, the said- Wiley Collins, (the said trust estate, or proceeds therein provided for the said Louisa Collins, to be held to and lor her sole and separate use, free and discharged from all con,tracts, engagements, debts and liabilities of the said Wiley,) to be held, used and enjoyed without division or distribution until the death of the said Wileyand after the death of the said Wiley, the said estate and the whole of it to vest absolutely, free and discharged from all further trusts, in the said Louisa and such of their children as should then be living, in equal parts, share and share alike.</p> <p>Mrs, Collins and her husband, and the trustee, were made defendants to the original bill. An amended bill was afterwards filed, alleging the death of the husband after the filing of the original bill, and making the children parties defendants. The answers of Mrs. Collins and the trustee deny that the trust estate is bound for the payment of the note, and contain several demurrers to the bill. 1. Because the original bill contained no equity. 2. Because the bill, as amended, contained no equity. 8. Because the amendments make a new and entirely different case from that made by the original bill. 4. Because the original bill and the amendments thereto are incongruous and inconsistent.</p> <p>The chancellor granted the relief prayed, and directed the appointment of a receiver c£ to take charge of the property mentioned in said trust deed; and from the proceeds or profits of that portion belonging to Louisa L. Collins to pay the amount due complainants, and the gpsts of suit.5’</p> <p>1. At the filing of the original bill, Mrs. Collins had no separate estate in the property which could be subjected to the payment of the note, except, perhaps, her proportion of the proceeds and profits of the property.</p> <p>2. On the death of her husband, Mrs. Collins’ interest became an absolute estate, in and to one share, she and her children sharing equally. Her interest, then, could only be subjected by her creditors, by a bill for partition, or with appropriate allegations to separate her interest from that of her children, and subject it to the payment of her debts.</p> <p>3. The death of Wiley Collins and the consequent change in the character of the trust property ought to have been brought before the court by supplemental bill. The demurrer to the bill, as amended, should have been sustained,</p> <p>4. The appointment of a receiver for an indefinite period of time works an injury to the rights of the children.</p> <p>1. The separate estate of a married woman is liable for all the debts, charges, incumbrances, and other engagements which she does, expressly or by implication, charge upon it. — 2 Story’s Eq. Jur., §§ 1398-9-1400; 17 Ala. 797.</p> <p>2.. The rule that requires all legal remedies to be exhausted before a resort can be had to a court of equity, does not apply to a case like the one at bar, for here the remedy exists in equity, independent of that at law. — 17 Ala. 797. When this bill was filed the husband was living. It was not necessary to proceed to judgment against the husband, and the wife could not have been sued at law. When the husband died, the suit could properly abate as to him, and proceed against the other parties, without making his representative a party. The property is not yet divided, and there is yet no remedy at law.</p> <p>3. When property is given to a feme covert and her children, to be enjoyed jointly or collectively, the creditor’s only remedy is in a court of equity, where the interest of the mother may be separated and subjected to the payment of her debts. — 9 Ala. 1002; 10 ib. 328; lb. 702.</p> <p>4- The amendment of the bill Avas properly allowed before the chancellor. — Story’s Eq. PI. 887; Mitford’s Ch. Pr. 325. A supplemental bill is never resorted to, when the same end can be obtained by an amendment. — Story’s Eq. PL, § 614; 3 Paige’s Ch, 505; 3 Atk, 111-371; 2 ib. 15.</p>

Court o'f Mobile. Tried before the Hon. J. W. Lesesne. The -allegations of the bill are, that 'Perrine -'became accommodation endorser on a certain bill of exchange for Riha, Sykes & Co., and loft it with them to be used at its par vahte; that Riha, Sykes & Co., becoming embarrassed, sold the bill at a heavy discount' to Carlisle ; that' Carlisle sued Perrine and Riha, Sykes & Co. on the bill, 'and recovered judgment; that Perrine had no knowledge, until after the rendition…

<p>1. When,a father pays without objection an account contracted by his minor son while attending school at a distance from home, the payment is equivalent, to a recognition of the sou’s authority to bind him, and will render him liable on a similar accouut subsequently contracted,</p> <p>2, When the authority of the son to bind his father for goods furnished is once shown to exist, the lapse of fifteen months will not overcome the presumption of the continuance of that authority, so as to discharge the father from liability for goods subsequently furnished, it being shown that during all that time the sou was absent from the place where the two accounts were contracted.</p> <p>3. The authority of the sou to bind his father by the purchase of good.s being established, the declarations of the son respecting the subject matter are also admissible evidence against the father, if made at the time of the purchase and constituting a part of theses gestea.</p> <p>1. In assSmpsit against the defendant for goods furnished to Ins minor sop, the facts being proved from which the law will presume the son’s authority to bind his father lay such contracts, apt! no proof being offered to rebut this presumption,- it is not error for the court to charge the jury that if they believe the evidence they must find for the plaintiff.</p>

ERROR, to the Circuit Court of Benton. Tried before the' Hon. L. P. Walker.

Appeal, from the Chancery Court- at .Mobile.. Tried before she Hon. «L W* Lesesne. It is said equity cannot give relief 'in such a case as this. If this be so, it is very ineffectual to suppress fraud! This is a fraudulent device of Barney. — 1 Story’s Éq., § 186-87-88-90;. Equity has jurisdiction to apply a remedy where a creditor’s judgment is satisfied and it is attempted to be set up against the debtor. — 2 Story’s E'q., §'876, .886, 877.

'Geo. Goldthwaite, Tgis was a trial-of the .right .of .property to .certain slaves, which had been levied on. under execution in favor of Stewart against Benjamin B. Patton,jand'daimed by the 'plaintiff in error who was a son-in-law of Patton’s, The judgment on which the execution was issued was rendered on the fifth of March, 1849.

<p>SI. An endorser who is fully indemnified, Or one for whosé'accommo-dation the -note was drawn and who ‘has received' the benefit of it, is not entitled to notice of its non-payment.</p> <p>' 2. On a demurrer to evidence the'court must assume as trne'-every fact which a jury 'could, with any propriety according to-the'evidence, find to be true.</p> <p>3. A., as attorney, recovered a judgment against -E. & R. for §900, but could not obtain satisfaction by legal process. R. .proposed to give his individual note with a good endorser, for about$300, in full satis.faction of the, judgment. He also afterwards proposed to give‘his note for the same amount with W., who was his mother, as endorser, and that A. should assign the judgment to her. A. accepted the latter proposition, and executed an assignment of the judgment to W. The assignment was delivered to R., who thereupon gave his note for the required amount endorsed by W., payable in Bank. A. en» dorsed the note to H., who brought assumpsit on it against W., and relied on these facts to exeeuse want of notice. It was held,</p> <p>That the evidence, on demurrer to it, was not sufficient to justify the inference that W. assented to the assignment of the judgment to her,, or that she was informed of it.</p>

ERROR, to the Circuit Court of DeKalb. Tried before the Hon. George W. Lane. A JUDGMENT was rendered by a justice of the peace in favor of Turrentine v. Watts, on which an execution was issued and levied on certain personal property, to which a claim was interposed by Appleton, and bond given to try the right thereto. A trial was had before the justice, and the property was found subject to the execution.

Euhok to the Circuit Court of Mobile. Tried before the Hon. John Bragg, A judgment was rendered by the Mayor of the City of Mobile against the plaintiff iu error for a fine of twenty-five dollars and costs, for his infraction of a city -ordinance. The defendant appealed to the Circuit Court, where judgment was «again rendered against him, to reverse which he prosecutes this writ of error. The facts of the case may be collected from the «pinion,

Ere.gr: to» the Circuit Court. ofMobile,- Tried before &?-: lion, John-. Braggi--. 1; Tbe substituted papers cannot be recognized as parts of the record.

<p>ERROR to the Circuit Coiift of Talladega. Tried before the lion. Robert Dougherty.</p>

Albest Stein, made application,-by petition',, to the Judge of Probate of Mobile, for a-writ of ad quod''damrmm to ascertain the damages occasioned to- those interested,, by the construction of an aqueduct, resorvoir and, dams, which he intended to construct at a point on Bayou Chautauque for the purpose of bringing water from the bayou, into the city..

Tried before the Hon. John Bragg. Assumpsit on .a bill -of exchange against an endorser. 1. As to the exclusion of the testimony, as shown in the bill ■of exceptions: The question before the jury was the sufficiency of the notice of non-payment to the endorsers. The firm of Coster, Robinson & Co. had no place of business. The evidence was competent to negative the idea that actual notice had been given. 2. The bill of exchange is misdescribed in the declaration. ■3.

Tried before the Hon. John Bragg. Beers & Smith sued out an cillary attachment against George H. Johnson, which was levied,.on the 12th June, 1840, on the Brig Republic, then lying at the wharf in Mobile. A claim was interposed by Fontaine & Dent, and bond given to try the right of property.

<p>1. When no provision is made in the deed for the resignation of tire trustee therein appointed, there are but two ways in which the trustee can resign his trust after having once accepted it, viz., in the summary manner pointed out in the statute, (Clay’s Dig. 581,) or by the permission of a Court of Chancery.</p> <p>2. An instrument in writing executed by the trustee, purporting to be a resignation of his trust and a transfer of the trust estate to another person, as trustee, with the consent and approbation of the cestu-is que trust, creates no vacancy in the trusteeship until ratified by the pourt, when the deed confers no such power qn the trustee,</p>

<p>1, Under the statutes and rules of court regulating the action of ejectment in this State, a plaintiff may proceed for his costs and damages, after the premises have been recovered against him by an adversary plaintiff in another suit.: consequently a plea puis darrein continuance of a recovery by a stranger is demurrable, if pleaded to the whole action, because it is no defence to the recovery of damages.</p> <p>2. But a plea of a recovery by a stranger puis darrein continuance is no bar to a recovery of the premises; for the defendant, if not estopped from denying the plaintiffs title by some peculiar relation existing between them, may protect himself against a recovery by showing a superior outstanding title in a stranger; and if the plaintiff’s title is superior, he ought not to be prevented, from recovering against the defendant by reason of a recovery of the premises by one who would in turn become liable to him for damages upon entering into possession.</p>

Tried before the Hon. Alex. McKinstry. Pitman Saunders filed a libel in the City Court of Mobile against the steamboat Arkansas, No. 5, on the 1st July, 1850, to recover for damages done to cotton in its transportation from Wetumplta to Mobile.

Tried before the Hon. Alexander McKinstry. Tins case and the preceding one (Stewart George v, Slreates & Co.,) are parts of the same suit, and the record of the former case forms a part of the record in this.

Ekroe. to tbe Court of Probate of Greenth, This application was made under the act of 1845, (Pamphlet Acts, 166-7,) to ascertain the amount due from the guardian, so (hat the sureties might be sued on their bond), -according to the cases of Snedicor v. Carnes* (8 Ala, 6,55*) and Eiland v. Chandler, (ib. 783.) The object of the petition is not to get anything from the estate of the defendant’s intestate* but simply a decree-ascertaining the amount due the ward.

ERROR, to tbe Chancery Court of Benton. Tried before the ¡¡Ion. D. G, Ligón,. The court of chancery has jurisdiction in this case. There is a trust shown, which remains unexecuted, and the trustee being dead, the court will appoint another in his stead, if nothing more. — 2 Hen. & Mun. 11; 4 Hayw. 4; 9 Cow. 524; 2 Eng. Com. Law R. 409; 9 Ala. 999. The legal title being in the trustee, the remedy of the cestuis que trust is only in equity.-*— IT Ala. 636; Ib. 743.

<p>1. When the mortgagor of personal property remains in the actual possession of the property before the law day,7ms entire interest therein, consistingof the usufruct of the property, until the law day and the equity of redemption, .may be sold under, execution at law against him.</p> <p>2. The plaintiffs in execution are entitled to precedence over a stranger to whom, after the levy, the mortgagor, has given an order on the mortgagee, which has been accepted by the latter, to be paid out of the surplus fund'after satisfying'the mortgage debt.</p> <p>3. The lien of the plaintiffs in execution is not affected by a sale of the property made by agreement between the mortgagor and the mortgagee, after the levy, and before the law day. In such case the plaintiffs would be entitled to recover the value of the hire of the property from the time of the sale until the law day, and to have an account taken of the value of the property on the law day.</p> <p>4. When the mortgagees file a bill to. separate their interest from that of the mortgagor, after the levy of an execution against the latter on the property, they cannot be allowed out oí the mortgage fund reasonable solicitor’s fees incurred by them in the prosecution of the suit. ■</p> <p>5. A deed of mortgage may properly be admitted to record, on proof by the subscribing witness that he saw the same signed, sealed and delivered on the fourth day after its date. When it is not shown that any fraud was intended, nor that any injury was done, or attempted, by the wrong date, the probate will behold-a substantial compliance with the statute, although it {loes not strictly accord with .the form prescribed by it.,</p> <p>C. In taking, an-account of the mortgage fund alter a sale of the property, the-plaintiffs m execution cannot take advantage of usury in the mortgage debt;.</p>

‘ERROR to the 'Circuit Court of Montgomery-. Tried before the Hon. Robert Dougherty.. Held: that when an injury is done to a person by the regular process of a competent court, although it may have been the result of malice, case is the proper remedy, and trespass is not sustainable; and it is there said, that the warrant being a nullity, “ it follows necessarily that it should not have been executed, and the authorities…

EheoR to the Chancery Court of Mobile. Tried before the lion. J. W. Lesesne. I.Can the court afford relief or take jurisdiction of the cause? A court of chancery has an undoubted jurisdiction to relieve against every species of fraud, whether, 1. Malus dolus and actual, arising from facts and circumstances of imposition; 2.

1. The court should not have allowed the plaintiff below to amend the endorsement of the cause of action, because more than two years had elapsed since the commencement of the suit -j there had been a trial and a now trial; the amendment introduced a new and different cause of action, and by that cause, the defendant was deprived of the statute of limitations. — 1 Tidd’s Pr. 698, T08. 2. New special counts should not have been allowed as in this case.

, Tried before the-Hon. L. P. Walker.. This was an action of debt by Jennings against Whiteside and others, on a bond executed by the defendants, who had been appointed by the Judge of the Orphans’ Court commissioners to-sell the real estate belonging to Owen Jenkins, deceased, conditioned that they should make or cause to be made to the plaintiff a fee simple title to certain lands therein described.

Esrob. to the Court of Probate of St. Clair-. The facts of this case upon which the questions of law arise, may be thus stated: Joel Chandler was duly appointed administrator of the estate of Harris G. Bishop, by the Orphans’ Court of St. Clair, and on the 11th day of March, 1836, the following order was made by said court and entered upon the minutes of the court; “This day came into court Joel Chandler-, administrator of the estate of Harris G. Bishop^ deceased, and makes…

Tried before the Hon. W. W-. Mason. In 1843, Robert C. Macon executed a deed of trust to secure •■certain of his creditors against liability on debts for which they were bound as sureties for him, some of which debts were due to ’the Branch Bank at Mobile.

If the plaintiff in error craved an appeal within five days from the rendition of judgment, and executed his appeal bond on the first day after the expiration of five days and before the issuance of execution, it was sufficient, and the appeal should not have been dismissed. — Johnson v. Hale, 8 Stew. & Por. 331; Henderson v. Plumb & Robbins, 18 Ala. 74. The case of Jones v. Moore, (13 Ala. 296,) does not settle this question.

Tried before the Hon. Geo. D. Shortridge. This was an action of trover brought by the- plaintiffs in error against the defendants, for the conversion by their intestate of a negro man slave, alleged to be the property of the plaintiffs. The plaintiffs claimed under the will of their grandfather, which is set out in the opinion of the court at sufficient length.

. Ja'Oob Roy,.an .infant, by his next friend,, petitioned the Court of Probate ■to set aside the probate of the last will and testament of his grand father,'Jacob Segrist, deceased, alleging that he was one 'of .the testators heirs at law, and that notice had not-been given ,to'him of the application to admit the-.will to probate. The axecutors appeared and opposed the pc--.tition.

Euuok, to the Chancery Court of Talladega. Tried before the Hon. D. S, Ligón. ’ This bill was filed by William McPherson, as administrator ■ of the respective estates of John 0. Balfour and his wife Regina Balfour, against all those who were interested in the two estates, either as legatees or distributees.

<p>1. .To charge the husband, under the act of 1846, with the debts of his wife contracted dum sola, it must be shown that he has received property in right of his wife before the commencement of the suit; and a recovery can on]y be had .against him to the amount of the property so received before the commencement of the suit.</p> <p>2. What is the creditor’s.remedy to obtain a judicial recognition of his debt contracted by the wife dum sola, when the husband 'has not received any property in right of his wife — Quere 1</p>