Volume 2 — Stewart & Porter's Alabama Reports (1831–1834)

This case was commenced by bill in Chancery, filed in Madison Circuit. Court, by the defendants is: error, Patterson and Hinehman. The object of the bill was to enjoin.- the County Court from proceeding in the matter of a garnishment, existing in that Court, between Eaton, a creditor of o'ne Tumor, and Atwood and Brahan, debtors, as was alleged, of the latter.

Billinslea, a legatee, took a writ of error to the Circuit Court of Perry, from the decision of the County-Court, made on a distribution of the estate of Ab-ercrombie. The writ of error was dismissed on the ground, that other legatees, interested in the estate, had not been made parties; to correct which, the cause came into this court.

Error from Tuskaloosa Circuit Court. Charles Millings, a negro, filed a petition, agreeably to the statute, against William Y. Glover, alleging that he was a free man, and unjustly and illegally held in bondage by said Glover; and for which he prayed the interference of the Court. On. an issue joined to try the fact, a trial was had,, and a verdict rendered in favor of the petitioner : and on a bill of exceptions, the cause came up to this Court.

This was an action, brought, by Jones, before a justice of the peace of Pickens county, to recover of Thompson the sum of twenty dollars and fifty cents. The plaintiff obtained a judgment for twenty dollars thirty seven cents, of which the defendant paid all except about eight dollars. The defendant, subsequently took the case into the County Court, by cer-tiorari, and. by bis own oath, swore off the balance.

The plaintiffs in. error commenced an action at law in the Circuit Court of Tuskaloosa, against the defendants, which action, became perpetually enjoined in chancery. The Circuit Court afterwards dismissed the action at law, at the plaintiffs’ costs ; to correct which decision the case came to this court.

Error from Mobile Circuit Court. Crosby Dickerson & William C. Wayne obtained judgments against one Barton, on the thirtieth day of February, 1828 — being a special term of Mobile Circuit Court. S. C. McDowall, at the regular March term following, also had judgment against the same.defendant. Dickerson & Wayne, respectively, took out executions on their judgments, returnable to the succeeding regular term of the court.

In error from Lauderdale Circuit Court. Hill brought his action to recover of the defendant for medical services rendered. The plaintiff produced a parchment, purporting to be a diploma issued to him by the University of Maryland. The court below rejected the parchment as evidence, and this was assigned to this court as error.

In error from Pickens Circuit Court. This was a bill in chancery, enjoining a judgment. The grounds of error appear in the opinion of the court.

In error from Franklin County Court. Gray, by an. instrument under seal, rented to Thompson, for the year 1828, a tract of laud, stated in the deed to be alL his open land, on the north west quarter of section 31, of township seven, and range 11 west, except, &c.; for which Thompson agreed to paj', on or before the 1st of January, 1829, two dollars per acre. On this instrument, Gray after-wards brought an action of covenant for the recovery of the money.

<p>1. Where appeal has been taken from a justice’s decision to the Circuit or County court, the decree, or judgment of thelatter, on the merits, will not be reversed, merely because the pleadings are imperfect, or in short.</p>

This was an action of debt, commenced in the Circuit court of Madison, in the name of the Judge of the, County court, for the use of one Stewart, et ux. against Looney and his sureties, on a bond, as executor.

This suit was commenced by Smith, before a justice of the peace, to recover the amount of a promissory note. The defendant removed the cause into the county court, by certiorari, and from the record, it is shewn that judgment was rendered in her favor for costs, or 'motion. To reverso this, Smith, prosecuted his writ of error to this court.

In error from Marengo county. The defendant in error instituted his action of trespass, quare clausum fregii, against Finch, to recover for the forcible removal of log houses from the land of the -former.

This was an action of debt, instituted by Robinson in Madison Circuit court, against Joshua Cox, and Bartley Cox his surety. The cause of action, was a bond executed by the latter, and made payable to James Powell. Both defendants pleaded payment.

In error from Dallas Circuit court.. In this case, the plaintiff in error produced as evidence, an affidavit for bail, sworn to before a justice of the peace. -The court below rejected the affidavit,, on the ground, that justices had no authority to administer the oath required.

In error from Marengo Circuit court. ’ Lockhart issued a notice to the sheriff of Maren-go county, and his sureties, apprising them, that he should moYe the Circuit court for judgment, for failing to pay over certain money collected by the said sheriff, on an execution in favor of the plaintiff. — • The notice stated specially the amount claimed, comprising the principal, interest and costs of the suit, but contained no demand for the damages as provided by the statute.

In error from Bibb Circuit court. Thomas P. Norris, assignee, brought an action of assumpsit against Alexander Hill, to recover the amount of a bill of exchange, drawn by the defendant on one Taylor of Mobile, and by the latter accepted.

In error from Montgomery Circuit court. This action was assumpsit, upon promises, brought by Mitchell againt Opothle-Yohola, an Indian chief, in which there was a verdict for the plaintiff below. There- was a judgment by default, and on executing a writ of enquiry, the defendant offered to challenge a juror, which the court disallowed. Among many other exceptions, this was taken, which disposing of the case, it is unnecessary to notice the rest.a

This action was brought in Madison county court, by Fearn, to recover one thousand dollars, covenanted to be paid in Huntsville or Tennessee bank notes of good standing in Huntsville. The plaintiff here, sought in the court below, to shew by testimony, the value of the notes of the Nashville bank; which testimony was rejected by the court as irrelevant; to this the plaintiff, Searcy; excepted, and prosecuted a writ of error to this court.

In error from Shelby Circuit court. In this case, the plaintiff, Mundine, having obtained judgment before a justice of the peace, against one Perry, levied his execution upon certain estate purporting to be the property of the defendant in the process. The defendant in error made claim to the property, as provided for by the statute, and under an issue formed before the justice, the right was determined in his favor.

Owen brought an action of debt in Tuskaloosa Circuit court, to recover of Bryant the amount of a promissory note. The note was made payable to one Robbinett; and the defendant, in the course of the trial, offered evidence to show, that Owen, the plaintiff, was not the legal proprietor of the note sued on-; which evidence was rejected by the court.

This was an action of trespass, brought to recover damages for a malicious prosecution. The declaration was filed at the fall term, 1828, of the Circuit court of St. Clair county. At the Spring term, 1829, the cause was continued, on the affidavit of the defendant. At the fall term, 1829, it was continued on the special affidavit of the defendant.

<p>The opinion of the court states this case fully.</p>

This wasan action of assumpsit in Monroe Circuit court, brought against the plaintiffs in error to recover the value of certain medicines. The articles had been purchased bj Robinson, the agent of the defendants in the action, in conformity with a letter of the latter, requesting the same. The letter, required the purchase to be made on a particular credit; and it was accordingly made of the defendants in error.

Armstrong commenced an action for malicious prosecution, against McMahan, in Lawrence Circuit court. The prosecution alleged to have been malicious, was upon a charge of perjury. The defendant was committed by the examining magistrate, but was-afterwards discharged on a writ of habeas corpus.

In error from Tuskaloosa Circuit Court This suit was instituted on the chancery side of Tuskaloosa Circuit court, by McRae, to -review a settlement of accounts, once existing between himself and the defendants in error, as joint .owners of . a barge. The matters of difference had been, some six years before the filing of the bill, submitted to arbitrators, who had made an award.

In error from Tuskaloosa' Circuit court. This was an action in chancery, commenced by Thomas Hill, complainant, against Ezekiel W. Young and others; and revived and continued bj his representative, Mary Ann McGowen, late Mary Ann Hill. The original object of the bill, was to obtain an injunction against the removal of certain slaves, alleged to have been in the possession of Ezekiel W. Young; and in which the complainant professed to be entitled to a residuary interest.

This was an action of assumpsit, brought by the School Commissioners of the sixteenth township and. nineteenth range, in the county of, Montgomery, against Dean and M’Dade, upon certain promises.The Circuit Judge quashed the writ, on motion, before any declaration was filed. The judgment of the court, thus quashing the writ, the plaintiffs contend, was erroneous.

This was an action in Dallas Circuit court, by Wallace, to recover, on an agreement in writing, by which the plaintiff in error, and two other persons, agreed to pay Wallace one hundred dollars, for teaching school for six months.

This case was an action of trespass, for false imprisonment, brought against Kinney Pool and Robert Caruthers, in the Circuit court of Tuscaloosa. The defendants plead, in justification, in substance, that the plaintiff had been arrested by them, in consequence of his answering the description of a murderer, who had fled from justice. This plea being demurred to, the Circuit court overruled the demurrer; and judgment was had for the defendants.

This case came before the Supreme Court, as on a -case agreed; and was designed to test the validity of the 5th section of an act, passed by the legislature of Alabama, , incorporating the Tuscumbia, Courtland and Decatur Rail Road Company. The President and Directors of the' Company proceeded, under the authority of the charter, to condemn a portian of the land of the plaintiff in error, under the provisions of the section alluded to, which is as follows: Sec. 5.

In this case, Mullens instituted, before a justice of the peace for Lawrence county, a complaint, alleging, that Wright was unlawfully detaining from him a tract of land, described in the complaint. -A verdict and judgment being rendered, befere the justice, in favor of the plaintiff, the cause was removed by certi-orari, into the Circuit court — and affirmed.

This was assumpsit, in Greene Circuit court, to recover the amount of a promissory note:, and was brought by the plaintiff iri error, as endorsee of one Shackleford, The note had been given for the price of a slave, who died eight days after the sale.— Shackleford, in consideration of the note, executed to the defendant a bill of sale, with warranty ; and the present action was defended on the ground of the unsoundness of the slave, at the time of the sale.

This was an action, in Lawrence Circuit court, to recover on a promissory-note, which stipulated, for the payment of three hundred dollars, in shoes.

Turner brought an action of assumpsit, in Limestone Circuit court, against Matthews, to recover for medical services rendered. The plea was non-as-sumpsit. The plaintiff proved that he was a prac-tising physician, when the act passed establishing medical boards. He also introduced evidence to show, that he made, through his friend, an application to have his name enrolled as such, by the Huntsville board.

Dearing brought of trespass to try titles in Lawrence Circuit Court, to recover possession of a piece of land, from Hall. Dearing derived title through Petnay, and had a patent for the land as assignee 0f Petnay, who was the original purchaser from the United States. The defendant relied on a deed from Petnay, made after Petnay had become the purchaser, and paid one-fourth of the purchase money. The deed was made from Petnay to Hall.

This was an action of assumpsit, brought by Allen against Mitchell in the Circuit Court of Marengo. The defendant pleaded— 1st. That at the time of the service of the writ, and befoi’e, he was a freeholder and permanent resident of Dallas county ; and, 2d. That the note otf which the action was brought, was, at the time of the service of the writ, the bona Jide property of the sheriff.

This was a suit, in chancery, in Tuskaloosa Circuit court, instituted by Tindall against the defendants in error. The subject of the suit was a lost note, originally executed by Childress to one Stolen-work, who assigned it to May, who transferred it to one McMahan, who delivered it to the complainant. From the bill, answers and exhibits, it was shewn, that the note came into the hands of McMahan, by May having wagered it on a horse race.

In error from Madison County court. .This action was brought by Hazlehurst against Pope, the drawer of a bill of exchange. The bill was drawn by Hazard, Pope & Co. on Montgomery & Sons of Philadelphia, in favor of Banker, one of the firm of Hazard, Pope & Co.; and Banker, indorsed the bill to the plaintiff, in trust, to secure the payment of certain debts, due to other persons.

This action was debt, in Franklin Circuit court, by G. and J. Southerland; and was founded on a writing under seal, whereby the plaintiff in error agreed to pay a certain sum, on account of his son. The plaintiffs relied alone on the production of the agreement; and produced no further evidence.

The questions arising on this case, came before the County court of Autauga, by appeal from the judgment of a justice of the peace, of that county. The defendant in error, as bearer, commenced an action on a joint note, executed by Robinson, and one Ethridge, and payable to Nancy Crenshaw.

In error from Franklin County court. Perry, Administrator .of Thew, brought an action of debt against Bullock, on a due bill, for three hundred and ninety dollars, signed by said Bullock, payable to M. Gilchrist, and b'y him indorsed to Perry’s intestate.

This was trover in Tuskaloosa Circuit Court, by Harrell against Hamer, to recover possession of a -slave. The facts of the case, were, that -Hamer having borrowed three hundred -dollars of Harrell, gave the latter the possession of the slave in question, on a contract, that the value of the hire of the slave, should discharge the interest, until one hundred and eighty-four dollars of the loan¿ should be discharged.

Assumpsit by Tarver, in Greene Circuit court, on several promissory notes. The notes sued on, had been given by the defendants, in part consideration of three negro slaves, one of whom was diseased; and in consideration thereof it was agreed, that if the slave, who was sick, did not recover, the price at which she was estimated, to-wit, four hundred dollars, was not to be discharged.

Ttíís was an action of assumpsit, for goods sold, &c. brought by the plaintiff in error, in Franklin Circuit court. The defence relied on, was, that the plaintiff, being the factor of the defendant’s intestate, the latter had placed in his possession a crop of cotton, with directions to ship to a particular house : but that he had violated these instructions, and had become the purchaser himself.

This suit was instituted in Franklin Circuit court-by Sugg, on certain forthcoming bonds, given by the plaintiffs in error, conditioned for the production of a slave, who had been levied on, on an appointed day of sale. The defendants plead— First — a former judgment in their favor, in the County court df Franklin, which judgment was then in full force, &c.; and, Second — that the slave so levied on, had died before the commencement of this suit.

Blackwell, the plaintiff in error, commenced a qui tam action, in Morgan Circuit court, to recover of the defendant, the penalty, prescribed by law, for voting at an election, without the necessary qualifications.— In support of his action, the plaintiff produced, as a witness, one of the managers of the election, into whose- possession, the list of voters, kept by the clerks, and also, the ballots, had been placed : but, who could not tell what had become of the said list,…

This was a suit in Chancery, in Limestone Circuit court. The allegations of the hill were, that Simmons, the complainant, being the cestui que use, in a deed of trust, on certain property, made by one Ca-pel, to secure the former against liabilities incurred for the latter — the property was levied on by sundry executions, in favor of the defendants, creditors' of Capel: that Wallace, the trustee, having declined making the oath, required by law, in order to try the right of…

This action was brought, in Franklin Circuit court, by Coalter, use of Kirkmans, to recover of Bell, an amount of money, covenanted to be paid, in consideration of legal services; and, tó be paid, when a certain cause was determined. > The defendant plead— first, that the plaintiff had not performed his covenant, &c.; and, second, that the suit, on the determination of which the obligation was to be paid, was still pending, and undecided.

This case was determined in Madison Circuit court, on a final hearing, on a bill in Chancery. Rowan, the complainant below, being the administrator of'his father’s estate — in pursuance of law, and under the necessary order, proceeded to sell the personal estate of his intestate.

In error from Madison county court. Betts, administrator of Blackwell, in pursuance of an order of court, sold a quantity of seed cotton, belonging to the estate of his intestate, at public sale, on a credit of twelve months, the purchasers to give bond with good security. After it was thought that nearly all the cotton had been sold, one Atkinson bought the part that remained. This proved to be larger than was anticipatéd, amounting in vglue to $476 42.

In this case Callahan, having been the -Clerk of the Circuit Court of Pickens-.county, was dismissed’ fronr office, ;by the presiding Judge of that court, under the authority of the act of 1819: and took a writ of error to reverse the-decision. ¡A motion was here made to dismiss the writ of error, on the ground that the plaintiff was not entitled to the writ in a case like the present.

Cobb, for the use of Wilson, declared in debt, in Madison Circuit court, against the plaintiffs in error, as obligors of an injunction bond. The bond was drawn in the penalty of six hundred and sixty-six and two-thirds cents: and the condition recited, that .the principal obligor, -was restrained from suing on, or disposing of a note, payable, in the s.um of three hundred and thirty-three and two-thirds dollars.

In error from Madison county court. — This case came up for the object of settling a question, arising in reference to the priority of the liens of sundry executions, which had been levied on a slave, the alleged property of one Houson. The slave was first levied on by virtue of an execution in favor of Williams, issued from Madison county court.

This action was slander, proseuted in Greene Circuit court. The words charged to'be the ground of the slander, were, that the defendant charged the plain tiff with having broken open, and read a letter, sent by mail to one Barron; and lodged in the post-office at Greensborough, of which office the defendant was assistant. The question raised in the court below, on a demurrer, which was sustained, and revived in this court — was, whether the words were actionable, perse.

Assumpsit by Ridgel, in Wilcox County court, on a promissory note.

Robert E. Center, as.agent of the plaintiffs in error, filed an affidavit in attachment, against the goods and effects of the defendant in error. The process having issued and been returned to the Circuit court of Mobile, it was there proposed, on the part of the plaintiffs, to amend the affidavit, which was disallowed. A motion was then made, amicus curia, to quash the attachment, which prevailed: and was here assigned as error.

In error from Washington Circuit court. The facts of this case, (which, was decided in Chancery,) as condensed from the bill, answer and exhibits, &c. showed, that, one Lester having, in 1821, obtained a judgment against Winney Caller, the executrix of James Caller, deceased, an execution issued on the same, was levied upon a certain tract of land, late of the estate of the deceased, and which having been sold, Shields became the purchaser.

In error from Marengo Cir'cuit court. This was an action brought by the holder of a bill of. exchange against the maker. The bill had been dishonored; and of this the plaintiff had sent the defendant notice, directed to Linden, the seat of justice of Marengo county, the county of the defendant’s residence.

Foley brought an action of debt iii Pike Circuit-court, against the plaintiff in error ; and the- cause of action declared on was a decree rendered in Chancery, in the Staté of Georgia.

This case was brought into the Supreme court, on a question raised in reference to the probate of a will. An instrument in writing having been exhiba ited to the County court of Lawrence, as the will of David Mason, deceased, and probate thereon prayed, of the court; the said court had a jury summoned, who, on the evidence, determined the said paper to be the last will and testament of the said Mason, as to the personalty: and probate was had accordingly.