Volume 2 — Alabama Reports

This was a bill in Chancery, filed by Henry P. Lee and Julius A. Norton, originally in the Circuit Court of Montgomery county, and afterwards transferred to the separate Chancery Court at Montgomery. The bill charges, that the complainants were accommodation indorsers on a bill of exchange, for four thousand dollars, drawn by Mosely Hooker, on Bliss, Gause & Co. of New Orleans.

Writ of error to the Circuit Court of Dallas County. ActioN of debt on a bail bond, executed by the defendant to the sheriff of Dallas couiity. Plea in abatement that the defendant, at the time when the suit was commenced, was a freeholder of, and a permanent resident in, Perry county of this State. The plea commences and concludes as a plea to the jurisdiction; is signed by counsel, and verified by the affidavit of one L. H. Davis.

This cause comes here on questions referred as novel and difficult, by the Circuit Court of Jefferson.

This suit was commenced originally before a justice of the peace, by the defendant, against the plaintiff in error, in which the former obtained judgment and the latter removed it by certiorari to the County Court of Pike county.

cited the'act of the 3d February, 1840, and insisted that the powers conferred by it on the judge 'of the Circuit Court, were judicial, and consequently any decision under it must be subject to revision by this Court. relied on the case of Hill v. The State, [1 Ala. Rep. 559] and agreed that the act of 1840, was not distinguishable in principle from the one then construed.

presented to this Court the transcript of a record of the Court of Revenue and Roads of Montgomery county. From this transcript it appears that there was a controversy in that court, between Tarlton and William S. Iiadnot, in respect to the establishment of a ferry across the Alabama river.

This was a motion in the Circuit Court of Macon, against the plaintiff in error as sheriff, and others, as his sureties, under the statute, suggesting that the money could have been made by due diligence.

Writ of error to the County Court of Mobile County. Scott sued Larcher before a justice of the peace, and the latter appealed to the County Court. The only papers sent up by the justice, are the warrant and the appeal bond. No statement of the cause is furnished by the justice; but the appeal bond recites the judgment rendered by him. The County Court dismissed the appeal, and awarded a procedendo to the j ustice.

This cause comes up by writ of error from the Circuit Court of Mobile. The plaintiffs in error declared against the defendant in assumpsit, to recover the amount of a promissory note, as also for goods, wares and merchandise, sold and delivered &c. The cause was tried by a jury as on an issue, although there is no plea shewn by the record.

The defendant was indicted, tried and found guilty of murder, at the last term of Montgomery Circuit Court. The presiding judge reserved certain questions for the opinion of this Court, as novel and difficult, on the following state of facts : One of the witnesses for the State testified that, at the time the defendant gave the mortal wound, the deceased had not a gun.

Writ of error to the Circuit Court oí Autauga County. Action of assumpsit, commenced in the Circuit Court of Autauga County, against Jones and Elkins, but discontinued as to the former, who was not served with process. Bail was required, and Elkins, when arrested by the sheriff of Shelby County, was bailed by one B. Davis.

The plaintiff in error brought an action of tresspass, in the Circuit Court of Dallas, to try titles to two lots, situated in the town of Cahawba, and to recover damages of the defendant as mesne profits, in consequence of their occupancy by him.

This action was brought originally by Sims & Scott, and now carried on by Scott, as surviving partner, against the defendants, to recover the value of one hundred bales of cotton, lost on the steamboat Warrior. The plaintiff obtained judgment, and the case is brought here on. a bill of exceptions.

Writ of Error to the Circuit Court of Tallapoosa County. Shropshike sued out an attachment against Corley and several others, describing them as non-residents. At the return term, a judgment by default was taken, and the damages ordered to be assessed by a jury at the next term. At the next succeeding term, an order of publication was taken; but publication was to be made only in the event, it should be directed by the plaintiff.

The plaintiffs in error moved, the Circuit Court of Pike, to quash a writ of fieri facias, previously issued against their property on a judgment recovered against them in that court, by the defendant. The following canses were assigned as the grounds of the motion. 1. The judgment is rendered against William McMahan and William F. Evans, while the fi. fa. issued against the goods and chatties, &c. of William W. McMahan and William F. Evans. 2.

This was an action of assumpsit commenced in the Circuit Court of Lowndes county by the plaintiff in error, against the defendants in error.- The declaration is in the usual form on the common counts. Pleas, non-assumpsit, payment, set off, and former recovery. The jury found a verdict for the defendants; and certified a balance in their favor of four hundred and fifty dollars twenty-five cents, for which amount the court rendered a judgment against the plaintiff.

<p>Writ of Error to the Circuit Court of Tallapoosa County.</p>

This was a summary proceeding in the Circuit Court of Pike, at the suit of the defendant in error, against Duncan McRae, as sheriff of Barbour, and his co-plaintiffs, (sureties in his official bond.) The notice, which was the first process in the cause, is in these words, .viz: “ The State of Mab ama — Pike County — To Duncan Mc-Rae, Sheriff of the County of Barbour. — You are hereby notified, that during the term of the Circuit Court, holden for said county of Pike, on the…

This was a bill in Chancery, filed in the Chancery Court at Eutaw, by the plaintiffs in error, against the defendants.

Writ of Error to the Circuit Court of Montgomery County. AotxoN of assumpsit on a note executed by the plaintiffs in error, to Bibb, the defendant. In the progress of the trial, evidence was given, tending to show some defect in the consideration of the note, which was given for the purchase of a tract of land, sold by Bibb, by virtue of a deed of trust, executed by one Vincent, to secure certain of his creditors.

The prisoner being indicted in the Circuit Court of Dallas, for the crime of murder, pleaded, 1. Not Guilty. 2. Jlutre fois acquit; and, being put upon his trial, a verdict of “ guilty in manner and form as charged in the indictment,” was returned by the jury; whereupon judgment was, in due form, rendered against him. After the jury had returned their verdict, the prisoner moved in arrest of judgment, and assigned sundry causes.

This was a bill in Chancery, filed by the plaintiff in error, originally in the Circuit Court of Dallas County, and after-wards transfered to the separate Chancery Court at Cahaw-ba, against Bernard Johnson, Administrator uf Winfield Harris and Hugh Younge.

Writ of error to the County Court of Wilcox County. AotioN of assumpsit, against the administrator of Thomas Evans, on a note of his intestate, dated, May 18, 1837, payable on the first day of January, one thousand forty. The declaration describes the, note according to its terms, and avers, that it was intended to mean, one thousand eight hundred and forty. The defendant pleaded non-assumpsit, the statute of limitations, and non-claim.

This was an action of Detinue brought by the plaintiff in error, in the Circuit Court of Dallas, for the recovery of two female slaves; to wit: Rachel about twenty-five years of age, and her daughter Harriet, aged ten or twelve years. The case was tried on an issue to the plea of non detinet. On the trial a bill of exceptions was taken by the plaintiff, to the ruling of the Court.

<p>Writ of error to the County Court of Mobile.</p>

Question reserved as novel and difficult, by the Circuit Court of Sumter County. The prisoner was indicted for the crime of murder, and convicted. Held: that the omission to prove the ownership of the slave, as alledged in the indictment, was fatal to his conviction.

<p>This was an action of debt brought by the defendant in error, against the plaintiff in the Circuit Court of Greene, on a promissory note of the following tenor:</p> <p>“#3339 18. On the first day of May eighteen hundred and twenty-three, we jointty and severally, promise to pay William Ely or order, as attorney and agent of the Connecticut Asylum, for the education and instruction of deaf and dumb persons, otherwise, called the American Asylum, at Hartford, for the education and instruction of the deaf and dumb, the sum of three thousand three hundred and thirty-nine dollars and eighteen cents, at the Mechanics’ Bank, in the city of New York, with lawful interest from date till paid (but if the principal sum shall be punctually paid when due, then, in that case and not otherwise, the interest is to be deducted,) value received, Tuscaloosa, State of Alabama, 3d February, 1841.</p> <p>“SAM’L. WITHERSPOON, [Seal.]</p> <p>“JOHN .W STEPHENSON, [Seal.]</p> <p>“Charles Leweh,”</p> <p>“Wm. Thomas.”</p> <p>The cause being submitted to the jury, a question arose as to the measure of damages, to which the plaintiff below was entitled in consequence of the detention of his debt. Whereupon, “ the Court charged the jury, that the plaintiff was only entitled to interest from the maturity, and not from the date of the instrument;” to which charge, the plaintiff excepted, &e.</p> <p>The jury having found a verdict in obedience to the instructions of the Court, and judgment being thereon rendered, the plaintiff has prosecuted a writ of error to this Court.</p>

This was an action of assumpsit, brought by the plaintiff in error, against the defendant in error, in the County Court of Dallas, on a promissory note, for nine hundred and fifty dollars. To a declaration in the usual form, the defendant pleaded non-assumpsit, want of consideration, failure of consideration, and set-off, and, on issues joined on the pleas, the defendant had judgment.

<p>Writ of Error to the Circuit Court of Wilcox County.</p> <p>Motion for leave to file an information in the nature of a quo ivarranto, against Burnett for usurping the office of Sheriff of Wilcox County.</p> <p>Notice was given to the defendant by the relator, that this motion would be made at the Fall Term, 1840. In support of it the affidavit of the relator was produced, which stales his election as Sheriff of said County, by the people thereof, at the general election in August, 1838; that he was commissioned hy the Governor, on the 13th of the same month, whereby he was entitled to hold the office for the term of three years, which is yet unexpired; that he has in no wise, by resignation, abandonment, or otherwise, forfeited his right to exercise the office; and that Burnett, the defendant, for seven months, then last past, had usurped and taken on himself to exercise the said office.</p> <p>The defendant appeared and recited the motion. He produced many affidavits, none of which deny the original claim of the relator, but most of which showed that the relator had been absent from the County from December, 1839, until April 1840, and for a longer period than four months. Fie also, showed that the. judge-of the County Court had enquired into the fact of the absence., and consequent vacation of the office, by the relator, pursuant to the act of 1825. [Aikins’ Digest, 100;] and had certified the fact of the vacancy to the Govern- or, who thereupon commissioned the defendant. He also, showed that, at the August election, for the year 1840, he was elected Sheriff by the people of Wilcox, and under that election, was again commissioned. He also showed that the relator was a non-resident when the motion was made.</p> <p>. The Circuit Court refused to allow the information to be filed. The relator prosecutes the writ of error and assigns the refusal as error.</p> <p>insisted that the relator was entitled to have the merits of his claim considered in due course of law, and to have the disputed facts ascertained by a jury. King v. Harwood, 2. East, 177. Commonwealth v. The Union, Fire, & Marine, Ins. Co, 5. Mass. 230. 5 Chitty, Gen. Pract, 552.</p> <p>As to the jurisdiction of the Court to review the judgment, he relied on Ethridge v. Hill, 7 Porter, 47.</p> <p>suggested that a mandamus was the appropriate remedy, if the Circuit Court has improperly refused the information. If this is not the proper course, it cannot be reviewed on error, because the granting or refusing the information is entirely within the sound discretion of the Court; and, from the affidavits submitted, there can be no question but that the office was vacated by the relator under the statute.</p> <p>To show that it is a matter of discretion, and not of right he cited, 2 John, 184; 14 S. & R. 216; 3, Mass. 285; 4 Cowan 382. Harden, 17.</p>

Writ of error to the Circuit Court of Pike. Held: by the defendant in execution, to a trustee, to secure certain debts therein specified, without first offering to produce the original, or shew where it now is, or account for its loss, and without having given notice to produce the same; the claimant objected to this, as incompetent testimony, but the Court overruled the objection,…

This was a bill filed in the Court below, by the defendant in error, to foreclose a mortgage. A décree having been made, and a sale ordered, in the event the debt was not paid, the defendant below prosecutes this writ of error, and now assigns for error, that there wg.s no reference to the Master to ascertain whether the premises admitted of division, and whether the amount might not be raised, by a sale of a part.

Writ of error to the Circuit Court of Mobile County. Action of assumpsit, commenced by Samuel Acre, in the Spring of 1838. At the Spring Term of 1840, his death was suggested, and James Frowner, his administrator, made a party. The record does not shew how Frowner was appointed, nor is there any evidence of his right, to make himself a party, appearing in any part of the proceedings.

This cause comes here by writ of error from the Chancery Court, sitting at Cahawba. The plaintiffs in error were complainants below in their Among other things, they state, that on the fourth of March 1833, Christian N. Sims, the mother of Mrs Du executed and recorded in the office of the Ck Court of Dallas, gave to her daughter, and to i daughter, then in life, and thereafter to be born]? and other property.

This bill in Chancery was filed by the defendant in error' against William' Creighton to foreclose a mortgage. Upon the answer of the defendant, the Court decreed a sale' of the property described in the bill. A sale was advertised by the complainaint, and postponed1 to a day beyond the next term. At the next term, the- order of sale was revised.

Motion by the plaintiffs in error, to be allowed to file a bill of exceptions, under the act of 1826. (Aikin’s Digest, 254, s. 5.) The facts attending this case, as they appear by affidavit, are these: The case was tried in the Mobile Circuit Court, atthe November Term, 1840, some two or three days before its termination, in the manner hereafter to bed escribed, and exceptions were taken by the plaintiff to the charge of the Court.

In the transcript sent up in this cause, we find a paper addressed to the plaintiff in errar, in which it is stated that the defendants recovered a judgment against Benjamin Lang in the Circuit Court of Mobile, on the 21st of April, 1826, for the sum of eleven hundred and sixty seven dollars and ninety cents, besides costs.

This was a bill in Chancery, filed by the defendant in error, against Margaret Tait, Downey and wife, and Newman and wife, for a specific performance of a contract, entered into by Newman with the defendant, by which he agreed to sell the interest of his wife, an Indian woman, in a tract of land which the plaintiffs in error were said to have acquired by the treaty of Fort Jackson, and an act of Congress passed in 1S17.

ActtoN of assumpsit commenced by attachment in June, 1837, at the suit of Foster, Nostrand & Co., against Bard Meslier. The atttachment was served on certain lands, and Daniel Walker summoned as garnishee or the 2d September, of the same year.

The plaintiff brought an action of Assumpsit against the defendants in the Circuit Court of Mobile, on a promissory note, dated the 31st January, 1838, for the payment of thirteen hundred and thirty and thirty-five one-hundredths dollars, six months thereafter. In the transcript there is no plea, but the case was tried by the jury as on issue joined. On the trial, the defendants excepted to the ruling of the Circuit Judge.

This was a bill filed in the Chancery Court at Mobile, by the defendant in error against the plaintiffs in error to foreclose a mortgage.

Writ of error to the Cricuit Court of Covington County. This case had its origin in the county Court, in which Jones appeared, and claimed to be one of the distributees of Benjamin Merrill, deceased, and suggested that Jacob Merrill, the administrator of the said Benjamin Merill, had certain slaves belonging to the estate, which had not been accounted for by him, and prayed that the said administrator rnight be cited to appear, and make a final senttlement of the estate.

The plaintiff brought an action of assumpsit against the defendants in the Circuit Court of Mobile, on a promissory noto, ■dated the 31st January, 1838, and payable twelve months after date, for the sum of thirteen hundred and sixty-nine and ten one-hundredths dollars. The cause was tried on the plea of non-assumpsit. On the trial, the plaintiff excepted to the ruling of the presiding judge.

This was a bill in Chancery filed Ity the plaintiff in error in the Chancery Court at Montgomery, as the guardian, and next friend of Sarah Shelman and five other infants. The bill charges, that John Lucas, the grandfather of the minors by deed, dated in May, 1829, (and which is annexed to the bill) conveyed to Charles J. McDonald certain- slaves in trust, for the use and benefit during her life, of Martha A Shelman, and at her death, remainder over to the minors.

Writ of error to the Circuit Court of Coosa County. Claim of property levied on by execution. Bradford caused a writ of fieri facias against the goods of one William J. Campbell to be levied by the Sheriff of Coosa county. The goods levied on, were claimed by A. B. Dawson and John Alexander Campbell, under the statute; and a claim bond executed by Campbell, with one Haggerty as surety.

The defendant in error, filed his bill m equity against the plaintiff, in the Circuit Court of Montgomery, in the spring of. 1835, alleging that Martin Brooks recovered a judgment in the County Court of that County, against Sterling E. Harrison, for the sum of five hundred and eighty dollars, and costs of suit— that an execution, issued on that judgment, was levied on the 26th March, 1834, by William Gregory, then Sheriff of Montgomery, on a negro woman, the property of…

This was a bill in Chancery by the defendant in error, to subject the separate estate of Mrs. Forrest, to the payment of a debt alledged to be due from her to the defendant, as the executor of her father. The case was formerly before this Court, 'reported in 4th Porter, 44, when the principle governing the case, was settled. The question here determined, is one of practice merely, which sufficiently appears in the opinion of the Court.

Writ of Error to the Court of Chancery for the Fifth District of the Northern Division. Tins bill was filed, and subpoena issued, the 5th of April, 1839.

The only entry in this cause, with the exception of the order for an appeal to this Court, is in the following words, viz : “ Charles A. Stewart, who has been summoned as a garnishee in the case of T. Sanford vs. James Zurcher, came into court and was sworn.

This was a petition filed by Thompson Littell, to set aside a sale made by the Master pursuant to a decree rendered in favor of the petitioner, in a bill filed by him against John N. Warren and others, to foreclose a mortgage; the petition sets forth the facts as follows: The petition of Thompson Littell respectfully showeth that, on the day of your petitioner filed his bill in this Honorable Court against John N. Warren and others, for the purpose of foreclosing and selling…

Writ of error to the Circuit Court of Tallapoosa County. Motion by one surety, for a judgment against another, under the act of 1839. The facts of this case, as declared by a bill of exceptions, are these: A joint and several note was made by one Wilson and five others, for 322 dollars, payable the first Monday of April, 1837. The payee sued Benjamin and Bird H. Young, and obtained a judgment in the Circuit Court of Tallapoosa county for 400 dollars, besides costs.

This was an action of debt brought by the defendant in error against the plaintiff, in the Circuit Court of Cherokee, on the exemplification of a judgment rendered by the Inferior Court of the county of Richmond, in the State of Georgia. The cause was tried by a jury on the pleas of nul tiel record, payment, &c., and a verdict was found for the plaintiff below.

Tee defendants in error brought suit against the plaintiffs in error, by scifa. as the bail of J. F. and M. H. Johns.

Questions referred by the Circuit Court of Cherokee County. The prisoner was indicted for murder. The facts of the case, so far as applicable to the questions referred, are these: When the jury was about to be sworn, one Weakly was called as a juror, and answered on his voir dire, that he had formed, but not expressed an opinion, as to the guilt or the innocence of the'prisoner.

The plaintiff in error brought an action of debt against the defendants in the Circuit Court of Greene, on a bill single, dated on the 7th day of February, 1836, for the payment of six hundred and seventeen 50-100 dollars, on the first day of January thereafter. The cause was tried on pleas which averred — 1st. That the writing declared on, was executed when said Allen proposed to sell said Litchfield a certain negro woman.

This was an action of assumpsit commenced in the Circuit Court of Mobile County, by the plaintiff in error against the defendant in error.

Writ of error to the Circuit Court of Sumter County. At a former day in this term, a writ of error was awarded returnable instanter. The transcript now certified as the return to that writ, discloses that the plaintiff in error was indict-ted at the April term, 1839, of Sumter Circuit Court, for the murder of Daniel Hendrick.

This was an action of Assumpsit brought by the defendant in error against the plaintiff in the Circuit Court of Macon, as the last indorser of a promissory note of the following tenor, viz : $>1,200. November, 24th, 1836. One hundred and eighty days after date I promise to pay to the order of W. Fleming, twelve hundred dollors, at the Central Bank of Georgia, for value received. [Signed] JAMES BUSSEY.

The defendant was indicted in the Circuit Court of Madison County, for the murder of James Still, and found guilty by the jury. Previous to the sentence of condemnation, the prisoner moved in arrest of judgment, because the writ of venire, which issued to the sheriff to summon the grand jury, was, by the clerk, directed to “ any sheriff of the State of Alabama.” The writ was returned executed, by the sheriff of Madison County.

Writ of error to the Circuit Court of Tuscaloosa County. Action of debt. The cause of action endorsed on the writ, is a penal bond for one thousand dollars, conditioned that the said Halsill should stand to, and abide, an award of arbitrators, of a certain controversy, respecting a tract of land. The declaration is on a single bill for one thousand dollars.

Writ of error to the Circuit Court of Lawrence. In the transcript, a power of attorney, purporting to have been executed by the plaintiffs in error, on the 3d December, 1839, is set out at length. This power of attorney authorizes the attorneys therein named, or either of them, to confess a judgment for the plaintiffs, in favor of the defendants; but as it is not considered by the Court as a part of the record, it is deemed unnecessary to recite it more particularly.

The defendant was indicted in the Circuit Court of Madison of the murder of Samuel Hudson, and being found guilty by the jury, moved in arrest of judgment, because the writ of ve-nire issued by the Clerk to summon the grand jury, was directed to any sheriff of the State of Alabama, whieh motion the Court overruled.

Writ of error to the Circuit Court of Lawrence county. Action of assumpsit, commenced on the 16th of September, 1839, by White the endorsee of a promissory note made by John C. Price & Co. payable to Price and Puckett, and by them endorsed, against Reese, a subsequent endorser. The declaration describes the note as being dated the 1st of March, 1838, payable ten months after date. The several endorsements are alledged to have been made before the maturity of the note.

This was a case of the trial of the right of property, under the statute, in the Circuit Court of Cherokee. From the record, it appears that a fieri facias, at the suit of the defendant in error against William Hall, was placed in the hands of the sheriff of that county, and was levied on two slaves, viz : a woman named Edy, and a boy named Wiley, as the property of the defendant in execution.

This was a trial of right of property in the Circuit Court of Henry County, in which the defendant in error was plaintiff in the execution, and the plaintiff in error Williams, trustee of Thomas Battle claimant. The jury found for the plaintiff in execution, and subjected a negro man and a bay mare to the payment of the plaintiff’s execution..

Writ of error to the Circuit Court of Talladega. Action of covenant by Bishop against Hill, on articles of agreement sealed by both, to this effect: Bishop rented to Hill the house, lot and appurtenances thereto, known as the Indian Queen Hotel, from the 18th January, 1838, until the 1st day of January, 1839 — Hill to keep the same as a Hotel.- Bishop bound himself to have the Hotel painted; to have the window .sash repaired; to put glass therein; to build a meat house, and…

<p>Writ of error to the Chancery Court, sitting at Mobile.</p> <p>This was a bill for the foreclosure of the equity of redemption in, and the sale of, mortgaged premises A subpcena was Served on one of the defendants to the bill, on the 23rd March 1840, on the other, on the 3'0th of April; and the decree was rendered on the 22nd May, referring it to the Master, to report the amount due to the mortgagee. This report was made and confirmed on the 23rd of May, arid' the Master accordingly directed to sell the mortgage premises.</p> <p>It is now assigned for error, that a decree was rendered within less than thirty days after service of the subpoena.</p>

This action was commenced in the Court below, by the plaintiff in error, hy attachment, for the use of W. H. Wilder.

Writ of Error to the Court of Chancery for the fifth District of the Northern Division. The bill was filed the. 39th September, 1838, and its object is to foreclose a mortgage executed in January, 1826, by Richard Inge, senior, to secure to Boardrnan the payment of nine .promissory notes, due on the first of May of each year, from 1826 to 1834 inclusive.

The defendant in error caused to be issued an attachment returnable into the Circuit Court of Chambers, against the estate of the plaintiff, upon an affidavit of his non-residence. The plaintiff in error pleaded the pendency of another action for the same cause. And a judgment was rendered in favor of the plaintiff by default for the amount of the note declared on, with interest, without noticing the plea.

. Error to Talladega Circuit Court. This was an action of trespass, brought by the plaintiffs against the defendants, to recover damages for an assault and battery; by the wife of the defendant, on the wife of the plaintiff. The defendant obtained a verdict and judgments.

<p>Question referred by the Circuit Court of Bibb County, as novel and difficult.</p> <p>INDictment for betting on an election; the charge as stated is, that the defendant “on the 10th day of October, 1839, did bet promissory notes upon the result of an election in this State, to wit: upon the election for representative in the Congress of the United State from the Congressional district including the County of Bibb, to wit: the third Congressional district of the State of Alabama — held on the 1st Monday of August, 1S39.” The defendant demurred to the indictment) the demurrer was overruled, but the question of law reserved for the decision of the Supreme Court.</p>

<p>The defendants in error declared against the plaintiff in the County Court of Talladega, as the second endorser of a bill of exchange.</p> <p>The declaration describes a bill of exchange drawn by John G. Eve, at Talladega, on the 7th January, 1839, for the sum of two thousand six hundred and fifty dollars, on Messrs. O’Neil, Michaux & Thomas, at Mobile, and payable twelve months after date. And alledges that the same was presented to the’ drawers in the city of Mobile, on the 2Sth January, 1839, for acceptance; that acceptance was refused; and the bill then and there duly protested for non-acceptance. The declaration then avers, that the defendant below had due nd-tice of the protest for non-acceptance, and promised to pay the plaintiffs the bill on request; and then concludes with an averment of non-payment to their damage, &c.</p> <p>The judgment recites, that the bill and protest for non-payment, were produced to the Court, and is rendered by default for the amount of the bill, with ten per cent, damages and costs.</p> <p>A writ of error has been prosecuted by the defendant below, to revise the judgment of the County Court; and it is here assigned for error — 1. The declaration avers a promise to pay “ on request,” but alledges no subsequent request. 2. The record does not set out the bill of exchange, or a protest for nonacceptance, or non-payment. 3. The judgment was rendered by default, without the intervention of a jury, for the amount of the bill and damages.</p>

This suit was commenced before a justice of the peace, and carried by appeal to the County Court of Tuscaloosa county; Charles Snow & Co. were the plaintiffs before the justice.

This was a proceeding in the County Court of Morgan, at the suit of the Branch Bank at Decatur, by notice under 'its charter, to recover a debt of the defendants below. A judgment was rendered by that Court, at a term holden on the third Monday in February, 1839, as follows: “ The Branch of the Bank of the State of Alabama at Decatur. v. Goodrich Lightfoot, Henry W. Hodges, Wm. P. Borum.

■Error to the Circuit Court of Mobile. This was a suit, commenced by attachment, by John B. Hazard, against one' Daniel Stowe, in which the defendant in error was summoned as garnishee.

In this case, a writ of error from the Circuit Court of Jefferson, returnable to the present term, with a transcript of the record attached, was filed. The plaintiff in error suggested to the Court, that it did not appear that a citation had been served on the defendaut, or that one had ever issusd; and thereupon moved, that a scire facias to hear errors be issued from this Court.

It appears from a bill of exceptions taken in the cause, that the claimant relied on a conveyance, made to him by the defendant in execution, of the property levied on, which was absolute in its terms, and proved that a fair consideration was paid by him for the property. The possession of the property remained with the defendant in execution.

This canse comes here by writ of error, from the Circuit Court of Mobile. The defendants in error, declared against the plaintiff in Tro-ver, for the conversion “ of one hundred and thirty pieces of ■cotton bagging of great value, to wit: of the value of fifty dollars each.” The case was tried on the general issue. On the trial a bill of exceptions was taken by the plaintiff in error, to the ruling of the presiding Judge.

This was an action nf assumpsit brought by the defendant in error, against the plaintiff in error, on the following note: Macon, 1st May, 1838. Nine months after date I promise to pay F. O’Callaghan or order, nine hundred and thirty-nine dollars eighteen cents, at either of the Banks in Mobile, for value received. J. O’HARA. The declaration is in- the usual form, and judgment for plain-: tiff below.

Writ of error to the County Court of Sumter. This was an action of Assumpsit brought by the defendant in error, in the County Court of Sutnter, against.the plaintiff as the drawer of a bill of Exchange, for eight hundred and twenty-five dollars, addressed to Messrs. Turner & Lewis of Mobile, dated the 5th November, 1836, and payable twentyrsix days thereafter. The cause was submitted to a jury, who returned a verdict for the plaintiff below; on which judgment was rendered.

This action was brought in the Court below, by the defendants in error, against the plaintiffs in error, as guarantors of one Walter West. The guaranty is to the following effect : “ Talladega, Nov. 22,1836. Whom it may concern.

The plaintiffs in error caused an original attachment to be sued out against the estate of Salem C. Garrett, returnable to the Circuit Court of Tallapoosa; which the sheriff levied on a stock of goods in the possession of the defendants, and also by summoning John W. Butler and Berry Horn as garnishees. The defendants claimed the goods levied on as their own property, and executed a bond to try the right to the same, pursuant to the statute.

This was an action of assumpsit by the defendant in error against the plaintiffs in error. The declaration contains the common counts for money lent — money had and received, and an account stated, to which the defendant pleaded — ■ 1. Non-assumpsit — on which issue was joined. 2.

■The counsel for Norris, Stodder, & Co., presented to the Court the certificate of the clerk of County Court of Sumter, in conformity to the statute, stating that they had recovered a judgment in that Court against one Joel W. Winston; and that Winston, on, &c., sued out a writ of error to this Court, and executed a bond, with sureties, &c. The counsel then suggested that, since the suing out of the writ of error — •plaintiff in error had died, and that Elizabeth.

Tnis action was commenced in the Court below by the plaintiffs against the defendant, on a note for fifty-three dollars eighteen cents, dated 25th January, 1839. The defendant pleaded non-assumpsit; set off; payment; and failure of consideration — -judgment for defendant.

Writ of error to the Circuit Court of Conecuh. This action was'brought to recover the amount of two promissory notes, subscribed by all the defendants below. One writ issued against Mayo and Smith “ To any Sheriff” &c. Another issued against Fleming in the same form. Both writs were returned executed, but by sheriffs, bearing different names.

Assumpsit on promissory note by the defendant in error, against the plaintiff in error.

This was an action, brought in the Circuit Court of Barbour, by the plaintiff in error against the defendant. The' declaration contains two counts.

This was an action instituted in the Court below by the Bank, against the defendants in error, as endorsers of a note to the following eifect. , Rome, ll July, 1838. Eightv-nine days after date, I promise to pay to the order of Edward Givens, three thousand and twenty-eight dollars and forty-four cents at the Western Bank of Georgia, value received. ROBERT L. LANE. The note was endorsed by Givens to Herndon, and by him to the plaintiff.

<p>1. Where the defendant pleads to the declaration, and the cause is submitted to ■the jury upon issues of fact, the Court should not exclude evidence which tends to sustain the issues, on the part of the plaintiff, because the declaration does not disclose a good cause of action.</p> <p>2. The act of February, 1839, which authorizes an action to be brought against the representatives of a deceased partner, upon an affidavit being made, that the survivor is insolvent, &c., as it merely gives a remedy at law, in a case in which the remedy was in equity, without any interference with the right, operates re. trospeetively, so as to embrace liabilities incurred previous to its passage.</p>

This cause comes here by writ of error, from the Court of Chancery sitting at Cahawba. In August, 1836, the defendant in error, Wm. T. Minter, filed his bill in equity, stating that he had been lately chosen, and legally appointed, the guardian of George J. and Sarah R. Bowie, infant heirs of John Bowie, deceased; of whose persons and estates, the plaintiff in error had been a guardian, from the year 1827, until a short time previous thereto.

ChaRles Batre, the testator of the defendant in error, in April, 1838, filed his bill on the equity side of the Circuit Court of Mobile, against Chas. Cullum, Burlin Brown, Thomas J. Cawley and Charles Gascoigne, for the foreclosure of a mortgage.of a tract of land, situate in the County of Mobile. The mortgage was' executed to Geo.

This was an action of debt, brought by the defendant in error against the plaintiff’s testator, in the Circuit Court of Dal- • las.

This was an action, commenced by motion, by the defendants in error, against the plaintiffs in; error, as drawer and endorser of a bill of exchange for four thousand six hundred and thirty-two dollars and seventy-five cents. The defendants appeared, and pleaded — first, Non-assumpsit.

Writ of error to the Circuit Court of Talladega County. This action was instituted before a justice of the peace; and after judgment, was removed by certiorari, to the County Court, from which, it was transferred to the Circuit Court by consent of the parties.

This was a proceeding by notice, at the suit of the Bank against the plaintiff in error, in the County Court of Mobile. The notice sought to recover of the plaintiff, as surviving partner of Mauldin & Morgan, upon an endorsement alledged to have been by that firm, of a note negotiable and payable at the Bank; by which note, L. Rogers, as maker, on the 14th August, 1337, promised to pay Wm.

<p>1. A vendee of land cannot entitle himself to a rescission of the contract, by tendering the purchase money, and demanding title before the time stipulated by the contract for making the title.</p> <p>2. Nor is it any objection that the title is not then in the vendor, if he can obtain the title*</p> <p>3. Where the payee of a note is inquired of, by one wishing to purchase it, whether he has any defence against it, and answers that ha has none, he does not thereby preclude himself from making any defence against the note growing out of the original transaction, of which he had no knowledge at the time. But if, when so inquired of, he promise to pay it, if purchased, he will be compelled to pay it at all events.</p>

The petition sets out that the complainants moved the Court of Chancery to proceed to take an account and make distribution of the estate of John Johnston, deceased, in conformity with the decree rendered and produced the certificate from the clerk of' this Court, directed to the Register of the Court of Chancery, certifying the reversal &c. {Supra page.

The plaintiff brought an action of assumpsit in the Circuit Court of Talladega, on a promissory note, made on the 22d of November, 1838, for the payment of one hundred and ninety-three dollars and thirty-four cents, by the defendant, on or before the 1st March thereafter. The writ bears test of the 28th February, 1839, a day pre vious to the maturity of the note.

<p>Error to Coosa Circuit Court.</p>

Writ of Error to the Circuit Court of Cherokee County. ActioN of detinue for seven slaves. The defendant pleaded non-detinet, and other pleas. Verdict for the defendant and judgment thereon. In the progress of the trial, a bill of exceptions was take by the plaintiff, which declares that several questions were made with respect to the admisison of the copy of the will of Mary Hall.

The defendant in error declared against the plaintiff, in the Circuit Court of Jefferson, in covenant upon a deed of the following tenor: “To all to whom these presents shall come, greeting.

The bill charges, that on the 27th December, 1836, the complainant entered into a contract with the defendant Wallace, in writing, for the sale to him, of twenty-seven slaves, for the sum of twenty-nine thousand dollars; and by a subsequent verbal agreement, another slave was added, at the price of twelve hundred dollars,upon the same time,to be paid for as follows : one-half of one-third part in ninety days; one-half of one-third part in four months; and the remaining…

Writ of error to the Court of Chancery of the Third District of the Southern Division. Bill to redeem a slave mortgaged by the complainant Sims to the defendant’s testator. The bill charges, that the complainant, in June, 1829, borrowed one hundred and sixty dollars from the defendant’s testators which was to be paid at a certain period, which is left blank in the bill.

This was an action of assumpsit brought by the defendant in error, in the County Court of Sumter, upon a bill of exchange, for two thousand two hundred and nineteen and forty-one hundredths dollars, drawn by the plaintiff in error, at Mobile, on the 28th of January, 1837, in favor of Jas. Bates, Jr., on Jas. F. Roberts. The plaintiff below claims title to the bill as an indorsee. The cause was tried on the general issue.

The action was brought by the plaintiff in error on four promissory notes, amounting to the sum of four thousand four hundred and twenty-eight dollars. Pleas non-assumpsit, payment, and set-off. During the trial, the defendant introduced evidence against the nominal plaintiff, of demands existing previous .and subsequent to the date of the. notes sued on, and previous to notice of the transfer to Redus, for whose use the suit was. brought.

Writ of Error to the County Court of Sumter County. ActioN of assumpsit by the endorsees of a promissory note against the maker. The note is described in the declaration, as payable six months after its date to Lea&Langdon, At the trial, on the general issue, a note purporting to be negotiable and payable at the Branch of the Bank of the State of Alabama, was offered in evidence under this declaration.

Joseph S. Kennedy, Jesse Carter and Mary L. (late Mary L. Kennedy) his wife, and Martha Kennedy and Delphine Kennedy, infants under the age of twenty-one years, by Joseph S. Kennedy, their brother and next friend, children and sole heirs of Wm. E. Kennedy, deceased, filed their bill in the Chancery Court, holden at Mobile, on the 22nd April, 1839. The complainants state that Wm.

This bill is filed by Larkin Camp, and seeks the rescission of a contract, for the purchase of a half section- of land. The complainant alledges, that he is a cousin of the defendant, and being desirous to settle himself on such a tract, as had sufficient good land for his means, he called on the defendant to aid him in purchasing.

<p>’Writ of error to the Circuit Court of Talladega County.</p> <p>MotioN against the defendant as sheriff of St. Clair, for a false return.</p> <p>The motion to the sheriff sets out the execution, &c., on which was the ■ following return: “ Levied on four negroes, Eliza, Ellen, Mill and Sam, as the property of Solomon W. Dunn. The property levied on by this execution, was sold to satisfy an older execution which I had at the same time.” This return was averred to be false.</p> <p>An issue was formed, and submitted to a jury, who returned a verdict for the defendant, on which he had judgment.</p> <p>A bill of exceptions was taken at the trial by the plaintiffs, which discloses, that the evidence'before the jury shewed that the return, so far as it went, was truey* that is, that the slaves levied on were sold by virtue of an older execution, which was in the sheriff’s hands at the same time. But the evidence also proved, that the return did not set out all the facts attending the case — that is, the slaves sold for more than sufficient to pay the older execution and all incidental expenses, costs, &c., leaving in the hands of the defendant, one hundred and seventy-four dollars unappropriated, and which should have been applied to the plaintiff’s execution. It was also in evidence, that after the slaves were sold, and before the return was made, the plaintiff’s attorney requested the defendant to apply whatever money was to the execution, and to make the proper return ; also, that the attorney demanded whatever sum of money was due on the execution, and when the sheriff refused to pay it, informed him he should rule him for the money and damages. The Court determined, that the defendant, under the circumstances in evidence, was not liable in this form of proceedings, as the notice did not inform him wherein his return was false, and for which he was sought to be made accountable ; and instructed the jury, if they believed the return of the sheriff was true as far as it went, yet in this form of proceeding, and under this notice, they must find for the defendant, although the return omitted to set out some facts very material to the plaintiffs’ interest.</p>

This was a proceeding by scire facias in the Circuit Court of Bibb, to revive a judgment which the defendant in error recovered against the plaintiff at the fall term of that Court, holden in 1832.

This was a motion in the Court below against the sheriff of Butler county, and his sureties for failing to return a capias ad satisfaciendum issued by the clerk of the Circuit Court of Pike county, on a judgment of the plaintiff in error against one PliramA. Sessions for fifteen hundred and eighty dollars, sixty-si-x cents.

Writ of error to the Circuit Court of Marshall county. Appeal to the Circuit Court from the judgment of a justice of the peace for a sum under twenty dollars.

Writ of error to the Circuit Court of Walker. This was an action of trover by the defendant in error, against the plaintiff, to recover damages for a negro slave named Lucy, alledged to have been converted while she was the property of the intestate. The cause was tried on issues upon the pleas of “ not guilty” and “ the statute of limitations.” On the trial, the defendant below excepted to the ruling of the presiding Judge.

Erroy to Sumter,Circuit Court. This was a petition filed in the Orphans’ Court of Sumter county by the defendant in error, as administrator of John Bond, deceased, setting forth that the personal estate of his im-testate was insufficient to pay the just debts against the estate without a sale of the real estate, which is particularly described; the petition sets out tne names of the heirs, ánd prays-that commissioners be appointed, &c. Upon this petition an order was made,…

Writ of error to. the Circuit Court of Lauderdale County. This suit was commenced in the County Co'urt, and is a proceeding under the act of 1836, [Digest 604,] to subject a steamboat to the payment of a demand alledged to constitute a lien. The libel is unnecessary to be stated, as it is not included in • the decision of the Court. The steamboat was released from seizure on the stipulation of the defendants in error.

The appellee brought an action of detinue against the appellant in the Circuit Court of Mobile, for the recovery of a female slave, named Matilda. The declaration is in usual form, and the cause was tried on the plea a “ non detinet.” At the trial, a bill of exceptions was sealed by the presiding Judge, at the instance of the defendant..

The action was on a promissory note by the plaintiff in error against the defendant in error. Held: the same under an agreement prior to the commencement of the suit by the plaintiffs, they must allow the bill as a set off; to which charge the plaintiffs excepted.

Writ of error to the Circuit Court of Talladega County. Action of trespass under the statute to try title and recover a tract of land.

This was an action of detinue brought by the defendant in error against the plaintiff in the Circuit Court of Talladega, for the recoyery of a negro woman named Sally and her three children. The cause was tried upon an issue to the plea of non detinet. On the trial, a bill of exceptions was sealed at the instance of the defendant below. The defendant claimed the slaves in controversy under a bill of sale from Win.

. This action was commenced at the Fall term, 1838, of the Circuit Court for Mobile county, by the Bank, by a notice which issued the 20th of August preceding, against the plaintiff in ér-ror, as endorser of a promissory note. The bank obtained judgment.

Writ of error to the Circuit Court of Talladega County. Action of assumpsit on twenty-seven promissory notes, each for the sum of fifty dollars, dated the 27th February, 1836, and payable on the 25th December then next. The defendant pleaded, 1. Non-assumpsit. 2.

The defendant in -error brought an action' of assumpsit against the plaintiff in the Circuit Court of Clarke on a promissory note of the following tenor : “ Twelve months after date I promise to pay to the order of the Treasurer of the Manual Labor Institute of South Alabama, with interest, fifty dollars, payable and negotiable at the Branch Bank of the State át Mobile. February 26th, 1838.

■ 'Fiiis proceeding was commenced originally beforea justice of the peace, by the plaintiff against the defendants. The plaintiff having obtained judgment, the defendants appealed to the'County Court of Jackson, where a judgment was also obtained by the plaintiff, and an entry appears, that a motion for a new trial made by the- defendants, was overruled.

Writ of error to the County Court of Sumter county. Action of assumpsit on a promissory note. Plea putting in issue the execution of the note. Verdict and judgment for the defendant.

The defendant in error brought an action of assumpsit against the plaintiffs in the County Court of Sumter, founded on a promissory note for eleven hundred and twenty-four and five one-hundredths dollars. The defendants in the writ are des-scribed as Henry A. Fowlkes and Phineas Fowlkes, partners under the name, firm and style of H. A. Fowlkes & Co.” Henry A. Fowlkes, one of the defendants, pleaded 1. Non assumpsit. 2.

This was an action of debt in the Court below, brought by the plaintiff in error, for the use of John T. Adams against Malcolm J. McRae, on his official bond as clerk of the Circuit Court of Mobile County. The declaration assigned as a breach of the condition of the bond, that the defendant had taken insufficient sureties to an injunction bond. The defendant craved oyer of the bond, and condition, and demurred to the declaration.

■ Writ of error to the Court of Chancery for the third District of the Southern Division. The bill seeks a rescission of a contract for the purchase of lands.

Writ of error to the County of Dallas. The plaintiff declared against the defendant in assumpsit as the acceptor of a bill of exchange of the following tenor, viz “Dollars 1276 89. Mobile, 24th April, 1838. On the first day of January, 1839, of this nay first of exchange, second of the same tenor and date unpaid, pay Henry Lazarus or bearer twelve hundred and seventy-six eighty-nine one-hundredths dollars, for value received, negotiable and pay-, able at the Bank of Mobile.

This was a bill in Chancery, filed by the defendant in error, against the plaintiff in error.

<p>Writ of Error to the County Court of Sumter County.</p> <p>ActxoN of debt on a sheriff’s bond against the defendants, who signed the same as sureties for William Johnson. The bond is conditioned, that Johnson, as sheriff of Sumter County, shall well and truly pay over all monies received by him, and otherwise faithfully discharge all the duties, which are .or may be required of him by law, during the time for which he is appointed.</p> <p>The declaration sets out the bond and its condition, and the breaches assigned are substantially these : That an attachment was issued at the suit of Anne Simmons against the estate of Jackson Brewer, to secure a debt of fourteen hundred dollars. This attachment was levied on a negro woman and child, of the alledged value of two thousand dollars. That Johnson, after the levy and before the return of the said attachment, falsely and fraudulently represented to Mrs. Simmons, that the said Brewer had removed all his property from the County; and that the said attachment had not been nor could be levied. That these false representations were made to induce Mrs. Simmons to sell her claim against Brewer to the said Johnson, for the sum of one hundred dollars; and that she did sell the claim to him in consequence of the said representations, for the sum named. A similar breach is alledged, except that she was induced to sell the claim to the said Johnson and one Cleveland. Another breach is assigned by alledging that Johnson, with a view to induce Mrs. Simmons to dismiss her attachment, after its levy and before its retprn, fraudulently connived at, assented to, and permitted a great fraud to be practised, and divers misrepresentations to be fraudulently and wickedly made; and that in consequence, she did dismiss her said suit against Brewer, and thereby entirely lost the benefit and advantage of it.</p> <p>The defendants demurred to the declaration; and judgment was thereon rendered in plaintiff’s favor.</p> <p>The plaintiff prosecutes this writ of error, and assigns, that the County Court erred in its judgment on the demurrer.</p> <p>insisted, that the bond of a sheriff is forfeited by any misfeasance or malfeasance in his official duties. He is not permitted to use the process of the Courts in making unequal bargains or taking undue advantage. [Jenner v. Joliff, 9 Johns. 380; Reed v. Prayer, 7 Johns. 426; Bartlett v. Cruger, 15 Johns. 250.]</p> <p>As to the right, in the first instance, to sue on the bond, he ■relied on Searcy v. Fearne, 6 Por. 400; Governor, use, &c. v. White, 4 S. & P. 441.</p>

This was a proceeding under the statute, in the Circuit Court of Tuscaloosa, to try the right to some cotton, which was levied on by a writ of fieri facias, issued from that Court, at the suit of the plaintiff, against the goods and chattels, &c., of William Carroll. The cotton was claimed by the defendant in error, and an issue made up and submitted to the jury for the trial of the question, whether the property was liable to the plaintiff’s execution.

This was an action of assumpsit in the court below by the plaintiff in err.or as assignee against the defendant, as assign- or of a promissory note. The note fell due 1st January, 1837. The plaintiff sued out a writ against the maker returnable to' the February term of the County Court of Marengo, that being the county in which he resided, and the first court to which suit could be brought.

Libel to enforce a lien on a Steam Boat under the act of 1836. [Aik. Dig., 2 Ed. 604.] The libel was filed on the 20th February, 1838, and prays the.condemnation of the Steam Boat for the value of certain goods shipped and not delivered.

The defendant was indicted at the Fall term of the Circuit Court of Shelby, holden in 1837. The indictment contains two counts, the first charges an assault and battery, with the intent to commit murder; the second, a simple assault and battery. At the Spring term holden in 1838, the defendant came into Court and pleaded to the indictment: First, not guilty. ' Second, not guilty within six months next before the prosecution against him.

This was a bill in chancery, filed by the defendant in error against the plaintiffs in error, to enjoin them from keeping a ferry across Jhe Tombeckbee river.

Writ of error to the Circuit of Pickens county. ActioN of assumpsit ou a promissory note. Plea puis (¡ar-rien continuance, that since the-last term of the Court, to writ: on the 29th August, 1S40, in the county, &c., he, the defendant, paid to the said plaintiffs the full amount and interest due •on the note declared on, whereupon, &c. Issue to the country, and verdict for the plaintiffs; for which judgment was rendered.