Volume 2 — Porter's Alabama Reports (1834–1839)

This case was brought into this Court by a writ of 'error from the Circuit Court of Bibb. It was an action of trespass to try title, and a verdict and judgment were had in favor of the plaintiff below. The defendant in the lower Court filed a demurrer, to the evidence, (which was mostly circumstantial,) but refused to admit the facts and circumstances of that evidence.

This was an action, brought by the defendant in terror, in the Circuit Court of Mobile, to recover on a joint contract, executed between Collins and his deceased partner Bebe, and Tindall and one Myers. The said Tindall and Myers had jointly contracted with Collins and Bebe for the performance of a job of work; and the action was to recover for a breach bf the agreement, which was not a covenant.

In this case, the defendant in error sued Scarborough and Skinner, before a Justice of the Peace, in the county of Clarke, on a note of hand, Scarborough, under oath, denied the execution of the note — whereupon, the justice gave judgment, by default, against Skinner, who did not appear. . Skinner subsequently took the case, by certiorari, into the Connty Court of Clarke ; where, after several continuances, verdict was rendered against him.

This action was brought in the County Court of Bibb, to recover the rate of ferriage allowed by law to the plaintiff, Henry. The defendant, Turner, had, it appeared, crossed the river in a canoe, not belong-* ing to the owner of the ferry; and had landed, by stepping into the boat of the plaintiff. The Court be^ low, determined that the action was not sustainable \ Whereupon, the defendant took his writ of error to this Court. cited Aih. Dig. 396;

Leavis brought his action of trespass, to try title, against Munn and Griffin, in the Circuit Court of Madison.

This case was brought into the Supreme Court by writ of error from the Circuit Court of Morgan. It was an action of assumpsit, commenced by the intestate of the defendant in error, to recover for work and labor, performed for the plaintiff here, and his deceased partner. The account rendered against the plaintiff in error, was acknowledged in writing, by Johnson, to be correct, both as to prices and the execution •of the work.

This was an action of assumpsit, in the Circuit Court of Morgan against McEldery and Chapman, executors of Goodhue's estate. The cause of action declared on, was work and labor for the estate of Goodhue, performed at the instance of the executors. McEldery alone appeared, and plead “ non-assump-sit and set off,” and a judgment was rendered against both executors, cle bonis testatoris.

This was an action of trespass, to trj title, instituted by Walters against Commons, in the Circuit Court of Perry. Walters was owner of the south east quarter of section eight, in township eighteen, of range ten, and Commons claimed the east half of the south west quarter of the samé section.

This action was instituted by Tolls, in the County Court of Madison, to recover of the plaintiff in error, the amount of an account due by his testator. The defendant below, filed the- plea of the statute of ■limitations, to which there was a special replication.

. This action was commenced before á Justice of the ■Peace in Bibb county — taken to the County Court . by certiorari, - and thence by writ of error to the Oir- • cuit Court. The Court was requested to charge the jury, that a payment after the rendition of judgment by the magistrate, could not be pleaded, except by plea puis darrein continuance. The Judge refused to give this charge, but instructed the jury that the defence of payment was good without such special plea.

This case originated in a bill for injunction, filed by Huntington against Bell, et al, in the Circuit Court of Dallas. The bill disclosed — that sundry executions had been levied on a slave of the complainant, as the property of one Miller, upon a judgment against him, and that on trial of the right of property, in pursuance of the statute, a verdict was rendered in favor of complainant, from which an appeal was taken to the Circuit Court.

- Hatch declared, in assumpsit, in the Circuit Court of 'Franklin, against Crawford, on a written agreement, signed by himself and the defendant’s intestate. The cause of action concluded, “ Given under our hands and seals,” and was signed by Hatch and Crawford, the latter immediately under the signature of the first. Following Hatch’s name, there was & seal, but none to Crawford’s. On the plea of gene-tal issue, a verdict was rendered for the defendant.

In -this case a bill was filed in the Circuit Court of Jackson county, by Montgomery and Belcher, for the redemption of a negro slave.

This action was commenced, by attachment, against Ronalds, in the County Court of Limestone. The plaintiff declared as in indebitatus assumpsit, on an agreement under seal, to abide the award of certain persons. The agreement stipulated, that whatever amount should he found due against either of the parties, should he paid in debts due, to the party found indebted, in the State of Alabama. An award was made, and a balance found against the defendant, Ro-nalds.

In this case, the plaintiff below, brought his action of debt against the defendants, in the County Court of Franklin, to recover the amount due on a judgment rendered in the State of Virginia. The entry of judgment in the Virginia Court, was, for the sum of two hundred and twenty dollars debt, to be discharged by the payment of one hundred and ten dollars, &c. The plaintiff declared for the sum of one. hundred and ten dollars, and to his declaration a demurrer was filed.

This was an action before a Justice of tbe Peace-in Blount county, for forcible entry and detainer.— On the trial before tbe Justice, a judgment was rendered in favor of the plaintiff in error. The defendants having taken the case to the Circuit Court by certiorari, assigned, among other causes— 1st. That the complaint did not specify the land with sufficient certainty, nor the estate of the plaintiff therein. 2d. That sufficient evidence was not recorded.

Holloway, by guardians, brought an action of deti-nue against the plaintiff in error, in the Circuit Court of Marion, for the recovery of a negro slave. The declaration contained no profert of letters of guardianship, and under the plea of non detinet, a verdict was rendered for the defendants in error.

This was an action of assumpsit, instituted in the Circuit Court of Blount, by Little against Callison. ■The declaration showed the cause of action, to have been a reward offered by Callison for the arrest of one Brazille, who was charged with murder. On the trial, it was admitted by the plaintiff below, that one Queen, who was deceased, had had an equal interest in the reward, but no statement of this fact was disclosed in the declaration.

Warner’s executors commenced their action of covenant, in the Circuit Court of Franklin, against the plaintiff in error. The cause of action, was an agreement, signed by the parties, and one Thompson, which was framed to answer the purpose of an assignment by the firm of Aldridge, Myers & Pendle-ton, to Warner, of certain bonds, and as a receipt by Thompson; as an attorney, for their collection.

Charles Boyington was indicted and found guilty,, in the Circuit Court of Mobile county, for murder. On his arraignment, he plead in abatement of the indictment, that his name was Charles R. S. Boying-ton ; on which issue having been taken, it was adjudged that he answer over to the felony. The prisoner then filed a special plea, averring that one of the grand jurors who preferred the bill of indictment against him, was, at the time of finding, an alien.

Lemons commenced an action of trespass, assault and battery in the Circuit Court of Blount, against the plaintiffs in error.

This was ail action of trespass, to try title, brought by Hayter, in the Circuit Court of Jackson. The land in controvert^-, had been entered by McElyea, under a,pre-emption law of Congress, passed on the 29th May, 1880, Previous to the issuance of the patent to McEfyca, ho executed a power of attorney to one Campbell, authorising him to convey the land to Hay-ter, when the patent should issue.

In the Circuit Court of Jackson, a proceeding by' scire facias against bail, was instituted by Smith & Co, against the plaintiff in error,. Turk. The plea was nal tiel record — on which, after an examination of the record, in the original judgment, the-Court below, decided in favor of its sufficiency, and judgment was regularly entered for the plaintiffs be-' low.

This was an action of debt, brought? in the name of Wyatt, against the defendants, in the Circuit Court of Jefferson. The defendants filed their plea, setting out, in substance, that one Thompson, had artfully induced the defendants to execute the note sued on, as.a compromise of certain motions which he was prosecuting against them, by falsely and fraudulently representing himself to be the agent of the plaintiffs in those motions.

This action, being detinue, was instituted in the Circuit Court of Shelby, by the defendant in error, to recover possession of certain slaves. An objection, by plea, was made to the writ, that it was returnable to a day in February, when, by law, it should have been to March. The Court below, rejected the plea, and a writ of error was taken to this Court, where the defect in the return of the writ, was insisted on, as error.

. Neil brought an action of debt,, in the Circuit Court of Madison, against Cunningham’s executors, to recover an. amount, alleged to have been due by the defendants’ testator, as the surety of one Buford.

Pledger, bearer of Chapman, instituted an action of assumpsit, in the Circuit Court of Marengo, against Glover. The cause of action was a note of hand for fifty dollars. The plea of non assumpsit was relied on,!|with a notice of set-off.

The complainant, Haughy, filed his. bill in the Chancery Court of Tuskaloosa county, for relief against a judgment at law. The bill stated, that the defendant in error had recovered judgment against the complainant, in an action of trover; that the property was that of the complainant, and that on trial, (the Court having convened earlier than usual, when he was not enabled to assemble his. witnesses,) unfail-evidence, as lie was informed, was introduced against him.

This was a motion for a mandamus. It appeared, that in this cause a new trial had been granted by a Judge, who had not presided at the first decision. 'The term was held, by two Judges sue-cessively,… Held: by two Judges sue-cessively, one of whom had left the bench for some canse unknown, and it was here assigned as good canse for the mandamus to issue, that his successor had considered and granted the new trial.

This action was trespass, vi et armis, for carrying away a slave; brought by Estill, in the Circuit Court of Shelby. There was a demurrer to the declaration ; and the defect complained of, was, that the time of committing the alleged trespass, was left blank in the declaration. The Court sustained the demurrer, and the plaintiff took his writ of error to this Court. . Shortridge, contra.

Baird commenced proceedings, by warrant, before a Justice of the Peace in Tuskaloosa county, to recover the balance, of an open aocount, alleged to be due by the defendant, Nichols. The magistrate, on the trial, rendered judgment in favor of the plaintiff, for seventeen dollars and twenty two cents, with which he being dissatisfied, removed the case by cer-tiorari, into the Circuit Court.

Thomas instituted proceedings of forcible entry and detainer, in a Justice’s Court, in St. Clair county, to recover possession of a tract of land lying in the Cherokee nation, from which, as was alleged, Adams had with force ejected him.

Fierce & Baldwin, for the use of Stewart, brought an action of assumpsit against the defendant, in the Circuit Court of Tuskaloosa. They declared, as co-partners, and merchants, for goods sold by the firm, to the defendant, and the pleas filed, were, non as-sumpsit,' paymént, and set-off. On the trial, the defendant offered as a sét-off to the plaintiffs’ demand, a judgment, obtained by him against Pierce, one of the partners, which, the Court, after objection,- admitted.

An action of debt was commenced by Merriwether, against the defendant, in the Circuit Court of Tuska-loosa. The cause of action declared on, was the record of a judgment, originally rendered against the defendant in the State of Georgia. Under the plea, of mil tiel record, the Court below rejected the record, on the ground of its insufficient authentication.

This action was originally commenced by the plaintiffs in error, before a Justice of the Peace, in Tuska-loosa county, for an unlawful detainer, by the defendants. In the course of the trial, the defendants insisted on the right of a peremptory challenge to one of the jurors, which the magistrate refused.

This was an action of assumpsit, commenced by the plaintiff, in the Circuit Court of Shelby.

This was an action of slander, instituted in the Circuit Court of Tuskaloosa*, by the plaintiff, Hogg. Held: for instance, that to say of a member of Parliament, “He is a papist,” is actionable. This would surely not be law here, in reference to our Legislature. But, I hold that under our form of government, no action will lie for words like these.

This action was brought before a Justice of the Peace, in the county of Jefferson, to recover of the defendant, the sum of seventeen dollars and eighty four cents. The defendant was a constable, and the cause of action, was, his failure to return process on an attachment, in favor of the plaintiffs. The Justice having rendered judgment in favor of the plaintiffs, the case was taken, by appeal, to the Circuit Court.

This ca'se originated dn an action of assumpsit,. brought against the plaintiffs in error, in the Circuit Court of Tuskaloosa. The plaintiff declared, for a certain sum of money, allowed to him by resolution of the corporate authorities of the town of Tuskaloc-sa, in settlement of his- accounts as marshal.

Burke, plaintiff in eiror, having obtained a judgment by default, in the Circuit Court of Shelby, against the estate of one Porter, brought his action of debt, suggesting a devastavit against the present defendants, representatives of the same. The declaration of the plaintiff was demurred to, and judgment was rendered by the Court, in favor of the defendants.

Debt was commenced by Williams, in Greene Circuit Court, on a sealed note. Tbe plaintiff declared on the instrument, averring the same to be made at “ Virginia, to wit, in Greene county.” After judgment by default, for want of plea, Richardson took a writ of error to this Court.

In this case, the plaintiff, Burford, instituted an action of debt, in the Circuit Court of Jefferson, to re-1 cover'of the defendants, the amount of a promissory! note. The' indorsement-of the cause of action, on} the writ, described it to be a sealed note, without set-1 ting ont the seals, and the declaration was in the common form upon a writing obligatory, but omitted a description of the seals.

Assumpsit in the- Circuit Court of Tuskaloosa, And tho plaintiffs declared for money paid, &c. at the instance and request of the defendants, they being partners in trade. The writ, as appeared, was-executed alone oil Griffin, and thereupon, in accordance with the statute in such case made and provided,, the declaration was filed against both defendants.

This case was commenced, by bill in chancery, filed by the complainants in the Circuit Court of Jefferson.

In this Gase, the plaintiff in error obtained a judgment by default, in the Circuit Court of Tuskaloosa, against the defendants, as administrators of one Par-ham. Held: that even sd. fa. is not necessary, and that a special fi. fa. de bo-nis propriis, is sufficient. It seems, though, that sd. fa. is the most appropriate remedy. The same doctrine will be found in 2 Haywood, 125, 377.

This action was trespass on the case, brought by the defendant in error,, in the Circuit Court of Henry, The plaintiff there, declared for an injury caused to his property, by the negligent conduct of the defendant’s slaves.

In error from the Circuit Court of Pike. Lowry was indebted to Murrell in the sum of one hundred dollars, In part payment of this debt, the former paid to the latter, two notes of twenty dollars each, on one of the Banks in Georgia.

Assumpsit on a promissoiy note. The defendants in error sued out a capias ad respondendum, from the County Court of Tuskaloosa, against Randolph, on the day the note became due. At the appearance term, the plaintiff in error entered a formal appearance by attorney, and at the succeeding term, judgment by default, for want of a plea, was rendered against him.

This cause was brought into the Supreme Court, bjr writ of error from the Circuit Court of Tuskaloo' sa, on the final decree of a chancellor, dissolving an injunction. The complainant filed his bill, praying an injunction against the erection of a toll bridge. He claimed, to be the proprietor of a ferry, over the Black V7arrior river, opposite the town of Tuskaloosa; which he held under a license from the County Court.

This was assumpsit, brought by Hightower, in the Circuit Court of Autauga. Hightower sold a slave to Ivy, who gave his note for the price, Ivy afterwards took up his note, and in lieu thereof, transferred by indorsement, a note which was payable to himself from one Maples, to the said Hightower.

Baylor, who had been a defendant in execution,, instituted a proceeding, by motion, in the Circuit Court of Jefferson, against Scott, the former sheriff1 of that county, for failing to-pay over a sum of money, which he alleged, the said sheriff had received on the execution, beyond what was sufficient to satisfy it. The judgment against Baylor was for $749 22 cents, besides $51 28 cents costs.

, This case came to the Supreme Court; on the .final-decree of the Orphans’ Court of Pickens, in relation, to the settlement of an estate. . ■ Dobbs and Cookerham, administrator and admin-istratrix,- of the estate of William W. 'Cockerham, hay-' ing been required to make final settlement and distribution of the estate of their intestate, the defench ants in error, heirs of said estate, filed a statement, alleging, that, the administrator and administratrix had not made . a…

White, the defendant in error, instituted a proceeding for unlawful detainer, before ‘a Justice of the Peace in Pickens county ; which, on trial, by a jury, resulted in favor of the defendant. Several days after the rendition of the judgment, the Justice, considered and granted a new trial to the plaintiff, and thereon the latter obtained a verdict.

This action was commenced before a Justice of the Peace, and taken by certiorari to the Circuit Court of Shelby. The point there raised, ivas as to the privilege of the plaintiff in error, Moore, under the statute of 1807, exempting parties from suit, out of the county of their permanent residence. The proof was, that Moore was a resident citizen of St. Clair, at the time the action was commenced, and a freeholder in the county of Shelby.

Southwick, Cannon & Warren, merchants, of New York, brought their action against Tarrant & Marr, as partners, in the Circuit Court of Tuskaloosa county. The writ was served on Marr only. During the pendency of the trial, Marr died; and judgment was rendered against Tarrant, the surviving partner.

Assumpsit in the Circuit Court of Greene. The plaintiff below, Perry, declared for work and- labor done and performed at the instance and request of defendant, and there vas a verdict for the plaintiff.

Tate, guardian of S. McGuire, commenced an action of assumpsit in the County Court of Shelby, against Gilbert, to recover an amount of money charged to be in his hands, as former guardian of the plaintiff’s ward. At the final trial, the Court permitted the defendant to withdraw the plea of general issue, which he had previously relied on, and to file three other pleas in bar, the last of which was a plea puis darrein continuance.

This was an action of Assumpsit in Tuskaloosa Circuit Court commenced by McRea against Ken-non. The plaintiff declared against the defendant, as indorser of a promissory note, drawn by one Long-mire, in favor of one Shaw, and by him endorsed to the defendant. The plaintiff was the indorsee of one Fuller; who was the indorsee of Kennon.

This action was trespass on the case, instituted by the defendant in error, in the Circuit Court of Lawrence.

This case came up by appeal from the Circuit Court of Greene, exercising Chancery jurisdiction. The bill was filed by Eastin, praying the redemption of a negro slave.

Poland obtained a judgment by default; in debt, against Boardmán, in the Circuit Court of Madison. The cause of action declared on, was a promissory note, for the sum of three hundred and eighty eight dollars and six cents, which the defendant owed; &c; to the plaintiff’s damage 'one hundred dolíais.

Hopkins brought an action of detinue, in the Circuit Court of Jackson, to recover the possession of certain slaves.

Trespass to try title in the Circuit Court of Shelby, by Wilson against Bullock. The action was brought to recover possession of a fraction of land, and the appurtenances, bounded by the Coosa river. Held: had erected the mill under the authority of an act of the Legislature, and the subsequent entry of the land by the plaintiff was subject to the privilege : also, that this being a navigable river, the plaintiff could not claim soil beyond the high water mark.

Patton, Donegan & Co. commenced an action of assumpsit against Moore, the plaintiff in error, in Madison Circuit Court; and declared for goods, wares and merchandise, before that time sold and delivered to the defendant, at his special instance and request. The accounts of the plaintiffs, were for sales of goods for several years; and the question raised in the Court below, was, whether under the facts, interest was recoverable on the common counts.

Assumpsit by Campbell, in the Circuit Court of ■Lauderdale, on an instrument in writing, payable at the United States Branch Bank at Nashville, on the twenty third of April, 1832. Held: and so charged the jury, that if Boggs, the maker, had removed out of the State, before. the bond became due, and had so continued; the plaintiff was entitled to judgment, even though no demand had been made at the Bank for payment.

This was a bill in Chancery, filed in the Circuit Court of Lauderdale, by Coalter and wife, to enforce the terms of adeed.

Read having purchased a tract of land, at a sheriff’s sale, as the property of Avent, brought his action of trespass, to try title, against the latter, in the Circuit Court of Madison, to recover possession. On the trial, in the Court below, one Gaston, who claimed the land, offered to defend the action, which the presiding Judge would not permit. Avent then offered to shew a title in Gaston to the land.

This was a bill filed, in the name of the Governor against the plaintiff in error, in the Circuit Court of Franklin. The object of the bill, was the discovery of the amount of rents, alleged to have been received by the plaintiff in error, as agent of the University of Alabama. The answer admitted the agency, and the receipt of rents, but demurred to the bill, and made other objections as to the right of the plaintiff below to recover.

This case, was an action of debt, brought by Se-wall, against the defendants in error, in the Circuit Court of Mobile. The cause of action was a bond executed ¡by defendants, and made payable to the said Sewall, conditioned, for the return of certain property to one Bates, sheriff of Mobile, or for the payment of such judgment as should be rendered in a certain attachment cause, under which, the goods had been taken.

This bill was prosecuted by the plaintiff in error, in the Circuit Court of Lauderdale, for the foreclosure of a mortgage of real estate, executed by one Clifton, to secure the payment of a note, for two hundred dollars. It appeared, that the mortgage, also included personal property of greater value than the amount of the mortgaged debt, the balance due on which, at the time of filing the bill, was below the sum of one hundred dollars.

Standifer declared in debt, as the assignee of two several promissory notes executed by the plaintiff in error, as the surety of another.

This case originated in a bill in Chancery, filed in the Circuit Court of Conecuh, by the defendants in error, against the plaintiff and others, distributees, for relief, &c. The bill charged the defendant, as administratrix of the estate of her husband, who was the father of complainant’s wife, with having, by fraudulent representations, procured from the wife of the complainant, before his marriage, in discharge of aright she possessed in the estate of her father: also, to…

The plaintiffs below, Sledge and Maxy, declared against the defendant Haynes, in the action of trespass on the case. The defendant plead in abatement of the writ, that it had issued upon the Sabbath, and on demurrer, the Circuit Court held the plea bad, and gave judgment thereon for the plaintiff. The case was brought up, upon this point, from the Circuit Court of Montgomery. Cited ? Comyn, 399 ; •2 Dye?', 183.

Assumpsit, by defendant in error, in the Circuit Court of Madison ; and the plaintiff declared a,gainst the defendants, copartners in trade, for certain goods, wares, and merchandize, before the commencement of the suit, sold and delivered. It appeared, from the writ, that it had been executed upon two of the partners, and returned non est inventus, as to one.

<p>Suit cannot be maintained against tbe surety of an administrator, on the ad-» ministration bond; where it does not appear, that a judgment has been rendered regularly against the administrator, as such.</p>

This was a motion in the Circuit Court of Montgomery by the plaintiff in error against the defendant, on a bill of exchange. It was objected that the notice should have been under the corporate seal of the Bank, and that it was otherwise insufficient. The 'Court below quashed the notice, and the cause was brought into this Court by writ of error.

Weaver instituted an action of debt in the Circuit Court of Bibb, as endorsee of a promissory note.

The plaintiff in error was summoned at the instance of Atkinson, to answer what money, goods, &c. he had in his hands of one Deweese, the debtor of defendant. The plaintiff, in his answer, acknowledged himself to- he in possession of certain monies, which the debtor had placed with him for safe keeping} and which, he, the debtor, said (and which the garnishee believed) belonged to the United States.

This was a suit before a Justice of the Peace of Pike county, commenced by the defendant in error. On appeal to the Circuit Court, the presiding Judge refused to allow the plaintiff in error the privilege of his own oath, (the amount in controversy being under twenty dollars) and on this point, he prosecuted a writ of error to this Court.

This case was tried in the Circuit Court of Mobile. Chamberlain administrator de bonis non, of the estate of one Negus, left unadministered by James P. Bates his former representative; declared in assumpsit against the defendant, administrator of Bates, to recover a sum of money alleged to have been received by the latter, while the administrator of Negns, and which had never been accounted for, or paid over.