Volume 20 — Alabama Reports

<p>1. When an indictment is withdrawn from the docket, “on motion of the solicitor, the leave of the court being first had, with permission to reinstate it if necessary,” and no other step is taken in the ease for more than two years after-wards, the cause is discontinued.</p>

Tried before tbe Hon. E. Pickens. Tbe plaintiffs in error, wbo were slaves, were indicted for tbe murder of another slave.

Ebror to the Circuit Court of Talladega. Tried before tbe Hon. E. Pickens. Libel to forfeit slaves brought into Alabama from tbe Republic of Texas. Tbe relator alleges that tbe slaves named and particularly described in tbe .libel were brought into this State from tbe Republic of Texas, contrary to tbe act of Congress for tbe suppression of tbe slave trade, and prays that they may be declared forfeited, and sold for tbe benefit of tbe State and himself.

Tried before tbe Hon. E. Pickens. Tbe plaintiff in error was indicted for “inveigling, stealing, carrying and enticing away a slave, witb a view to convert sucb slave to bis own use,” &c. On tbe trial, tbe State offered to prove tbe confessions and declarations of tbe slave, made tbe day after tbe prisoner’s arrest, and in bis presence and bearing, and after tbe slave bad been taken aside by some of tbe company present, and privately conversed witb.

<p>1. The offence of gaming is complete by playing onee.</p> <p>2. An unoccupied storehouse,'"situated in a town, and fronting on the street, if habitually resorted to by persons for the purpose of playing cards, comes within the provision of the statute against playing cards at any “ out house where people resort.”</p> <p>3. A charge to the jury in a criminal case “ that if any one or more of their number differed from the majority of the panel as to the guilt or innocence of the defendant, they might properly waive their eonviotions and agree with the majority, but were not bound to do so,” is calculated to mislead the jury, and is therefore erroneous.</p>

Tried before the Hon. Robert Dougherty. 1. The indictment was defective, in not showing that the offence was committed in a county over which the court had jurisdiction. The court was bound judicially to know that there was no such county as Buter in the State of Alabama. See Chitty’s Crim. Law, marginal page 194, and note stating N. C. decisions. 2.

Tried before tbe Hon. L. P. Walker. Tbe plaintiff in error was indicted for an assault and battery committed on bis wife. On tbe trial, be offered to give in evidence “ ber misconduct and bad behaviour at tbe time tbe alleged assault and battery was made, in mitigation of tbe offence charged, and for tbe consideration of tbe jury in their assessment of tbe fine.” Tbe court excluded tbe evidence, to which tbe defendant excepted, and which be now assigns as error.

<p>Error to the Circuit Court of Eayette.</p> <p>Tried before the Hon. Wm. R. Smith.</p> <p>The declarations of a party in possession are competnet to show in what way he holds said property, and as against his interest are conclusive. The evidence here shown, in an action for tbe freedom of tbe boys against intestate, would clearly establish tbeir freedom. Tbe prosecution stands precisely in tbe same attitude as intestate would. 4 A. R., 40; 8 ib., 658; P. Ev., 592 to 601.</p> <p>Tbe fact that Jones carried one of tbe boys to a free State was conclusive as to tbe freedom of bim, and tbe court should so have charged.</p> <p>Tbe court erred, in charging tbe jury that if they believed tbe boys were mulattoes, that that fixed tbe presumption of slavery. Scott v. Williams, 1 North Carolina, 376; see Laws on Slavery by Wheeler, 406; tbe same doctrine is held in Louisiana;</p> <p>In refusing to give tbe charge that tbe presumption of color was rebutted and destroyed by tbe declarations of Jones that they were free and born of a free woman, and bis treating them as free and never having exercised acts of ownership over them for fifteen years;</p> <p>In refusing to charge tbe jury that if they bad a reasonable doubt of tbe slavery of tbe boys, that they must acquit. Tbe slavery of tbe boys is tbe very gist of tbe prosecution. If they were not slaves, tbe defendants did nothing wrong.</p> <p>The administrator has no right to tbe boys except tbe right of tbe intestate, and if Jones never bad possession of them as slaves, and tbe administrator after bis death never bad possession of them as property, tbe court erred in refusing to give tbe jury tbe charge, if they believe tbe above facts that they must acquit tbe prisoners.</p> <p>To sustain this action requires tbe same proof that would be necessary to sustain an indictment for larceny. Hence tbe owner must be correctly stated, and tbe proof must sustain tbe charge. Hence tbe court erred in refusing to give tbe last charge asked.</p> <p>1. Was tbe charge of tbe court that “ mulatto was a presumption of slavery ” correct ?</p> <p>Mulatto is an equal admixture of tbe African and white race. State v. Thurman, 18 A. R., 276.</p> <p>The only authority I Rave been able to find against tbe charge of tbe court is a decision from North Carolina, 2 Hayw. 170, and it is based upon the supposition, that when tbe descent of a mulatto cannot be proved, the chance of descent from a white mother is equal to that of his having descended from a negro mother.</p> <p>Now if such was the fact, that mulattoes are descended as often from white mothers as from negro ones, then there might be something in the reason assigned. As a general rule, they are always descendants of negro mothers, and the cases of descents of mulattoes from white mothers are merely exceptions to the general rule.</p> <p>In Virginia and Kentucky, it has been decided that a black or mulatto complexion is prima facie evidence that the person of such color is a slave. 3 Dana 385.</p> <p>2. The charge asked, that the declarations of Jones that they were free, and born of free women, &c., was sufficient to destroy the presumption of slavery arising from color, was very properly refused by the court.</p> <p>It is not the province of the court to charge on the sufficiency of testimony, 4 Por. 321; and besides, the court' is asked to charge the jury, that if Jones said they were free merely, then they must find it, without regard to their belief whether it was so or not.</p> <p>The fact that Jones treated them as his children was no evidence of freedom.</p> <p>3. The declaration of Jones was only admissible as to pedigree.</p> <p>It is a general rule that hearsay evidence is never admissible, except in cases of pedigree, prescription, custom, &c. The declarations of Jones were admissible to prove who was the mother of the boys, but not to prove whether she was free or not. The fact whether their mother was free or not was -a specific fact, and susceptible of proof. 1 Wheat. 6; 7 Cranch 291 4 ; Rand. 617.</p> <p>Were the declarations admissible, as being made by a party in possession, and against his interest? Neither Jones, nor his representative, was a party to the suit. Such declarations can only be given in evidence in a case where the declarant is a party or privy.</p> <p>4. Upon the point of the doubt as to the slavery as charged by the court; see 2 Grattan 575, 8 Yerger 233.</p>

EeeoR to the Circuit Court of Perry. Tried before the Hon. John D. Phelan. The indictment in this case alleged that the plaintiff in error “ was engaged in the business of hawking and peddling, and being so engaged, he then and there pursued the business of hawking and peddling in one wagon,” &c. A demurrer to the indictment was overruled, and the plea of not guilty was put in.

Erbor to tbe Circuit Court of Wilcox. Tried before tbe Hon. Bobert Dougherty. Tbe plaintiffs in error were indicted under tbe statute, for playing cards “in a public place. Tbe facts, as shown by tbe bill of exceptions, were these. Some time in tbe summer of 1851, there was a large collection of people at Pharr’s store, in Wilcox county, to bear tbe discussion of tbe candidates.

<p>1. The assemblage of eight or ten persons by invitation, at a private house or room, to which the public have not the right to go, for the purpose of playing cards, or participating in social amusements, does not constitute sueh house or room “ a public place,” within the statute against gaming.</p> <p>2. If the occupants of a room are in the constant habit of inviting a number of persons to their room for the purpose of playing cards, and others are allowed to come uninvited without any restraint, it is testimony tending to prove the Toom “ a public place,” and the jury may so find it.</p>

Tried before tbe Hou. E. Pickens. 1. Courts wbicb originate in tbe common law possess a jurisdiction wbicb must be regulated by tbe common law, until some statute shall change their established principles; but courts wbicb are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction. 4 Crancb, 93, 8 How. (U. S.) Rep. 441. 2.

Ebrob to the Circuit Court of Macon. Tried before the Hon. E. Pickens. MoSes Daniel was indicted in tbe Circuit Court of Barbour county, for “inveigling, stealing, carrying and enticing away ” a negro slave. On bis motion, tbe venue was changed to tbe county of Macon, and be entered into a recognizance, with plaintiffs in error as bis sureties, to appear and answer tbe charge of negro stealing, before tbe Circuit Court of Macon.

Tried before tbe Hon. E. Pickens. Tbe indictment against tbe plaintiffs in error was as follows, viz: “ The State of Alabama., ) In tbe Circuit Court, at Spring Macon county. • j Term, 1849. “Tbe grand jurors for tbe said State, sworn and charged to inquire for tbe said county, upon their oaths present, that John R. Lawson, a man, and Mary Swinney, a woman, both late of said county, on the first day of January, 1849, and continually from that day to the finding of this…

Tried before the Hon Geo. Goldthwaite. The rules of evidence in civil and criminal cases are the same; 1 Greenl. Ev. 82. In a declaration in trespass, when the trespasses are laid to have been committed between two periods of time, evidence is not admissible to prove a trespass committed without that period. Gould’s Pleading 106, and eases cited in note. 1.

Tried before the Hon. Alex. McKinstry. The indictment is clearly defective in not averring the name of the slave, or in some other manner, designating the person, so that the particular slave traded with could be identified. “Without this, the defendant could not be apprised of the particular charge he was called on to answer. The necessity of this degree of certainty is laid down in all the text books, and in various adjudged cases. See Archbold Cr.

Ehroe, to tbe Circuit Court of Marion. Tried before tbe Hon. Turner Beavis. 1. Tbe dwelling bouse of Whitehead would not have been a public place under tbe statute. Tbe place where tbe playing took place was on bis premises, and as mucb under bis control as bis own bouse, and tbe playing was witb bis permission. A private lane leading to a man’s bouse is not a public place, especially at nigbt. Tbe case of Tbe State v. Campbell, 2.

A. J. Walker, an attorney of tbis court, submitted a motion in bebalf of James H. Campbell, accompanied by tbe record of tbe proceedings bad in tbe Circuit Court of Cherokee county, for a writ of habeas corpus, for tbe purpose of obtaining bail for tbe prisoner, who is confined, as tbe record discloses, upon a charge of tbe murder of one Martha Garett.

<p>Erroe to the Circuit Court of Choctaw.</p> <p>Tried before the Hon. John Bragg.</p>

Tried before tbe Hon. E. Pickens. At tbe Spring Term, 1844, of tbe Circuit Court of Lowndes, John H. Gindrat, for tbe use of Levi W. Patton, recovered a judgment against Albert Go McGehee.

ERROR, to tbe Court of Probate of Perry. Tbe estate of Sterling Gorman, deceased, was declared insolvent in April, 1843, and tbe Judge of tbe Orphans’ Court being incompetent from interest to preside on tbe settlement, commissioners were appointed under tbe statute, by tbe Judge of tbe Circuit Court, to settle tbe estate. Tbe commissioners rendered a decree in June, 1845, wbicb was entered of record on tbat day.

Barnaby Wilkinson, as guardian of Matilda Wilkinson, sued out a writ of habeas corpus in the name of his ward, returnable before the Judge of Probate, to obtain her custody and control from the defendant in error, who detained her. On the hearing of the writ, the judge refused to make any order for the delivery of the infant to her guardian, and allowed the defendant to retain her.

It appears from, the record, that the estate of Andrew Burnham, deceased, had been duly declared insolvent by the Orphans’ Court of Randolph, in December, 1849, and that Frederick Ross was afterwards appointed administrator de bonis non.

Tried before tbe Hon. E. Pickens. 1. The deposition of “Mrs. Beese” should have been suppressed, because her Christian name is not set forth in the affidavit, nor in the fiat of the judge authorizing it to be taken. The clerh inserted it in the commission upon his own authority.

Tried before tbe Hon. E. Pickens. 1. It is admitted, that the declarations of an agent which, constitute a part of the res gestae are admissible; but this is the case only, “ where the representation or statement of the agent is the ultimate fact to be proved, and not an admission of some other fact. See 1 Greenl. Ev. §113. Here the fact to be proven was, the failure or refusal of the rail road agent to deliver the goods when called for by the wagoner.

Erhob to the Circuit Court of Montgomery. Tried before the Hon. Robert Dougherty. ■ Jones sued Gowen & Co. and another, in the Circuit Court on a bill of exchange. The action was assumpsit, and the bill on which it was founded was drawn by Cowen & Co. and McRea on Mauldin & Terrill, for one thousand dollars. No pleas appear in the record until the fall term of said court, 1850.

Tried before tbe Hon. Robert Dougherty. This was an appeal, from the refusal of a justice of the peace to quash an execution, issued on a judgment rendered by him in favor of Robinson against Matthews, as garnishee of one Commander. The motion to quash was predicated on the ground, that the judgment had been satisfied before the issuance of the execution.

<p>1. The Court of Probate has not jurisdiction to compel an administrator to convey his intestate’s interest in certain lands, which were sold by a firm in which the intestate was a partner, unless the intestate had entered into “bond or obligation to make title thereto.”</p>

<p>1. A cestui que trust of personal property cannot interpose a claim under our statute to try the right of property.</p>

Eekob to the Chancery Court at Montgomery. Tried before the Hon. J. W. Lesesne. Bill by the defendants in error against MeLemore, to foreclose a mortgage given by him on certain lands, which he had purchased of the complainants, and for which he had received their deed with covenants of warranty; the mortgage being a security for the purchase money.

Tried before the Hon. John Bragg. The plaintiff in error obtained a judgment against the defendant iu the County Court of Mobile, in February, 1840, for $1648 48. This judgment Avas founded on a note made by one Livingston, and endorsed by defendant and Gayle & Bower. An execution, which appears to be a pluries fi.fa., issued on said judgment on the 14th February, 1846, and was levied by the sheriff of Dallas county on certain lands as the property of the defendant.

Tried before the Hon. L. P. Walker. In tbis case tbe attachment was executed by tbe service of a summons of garnishment by a constable. Tbe record does not show that tbe garnishee ever answered, or that any judgment was entered against him. A judgment by default against tbe defendant in attachment was rendered by tbe court below, to reverse which be prosecutes a writ of error to tbis court.

Tried before the Hon. L. P. Walker. Tbis was an action of assumpsit on a store account, brought by Ferguson, use, &c., against I. S. Helms as Ex’r of Peter Walker, dec’d. - Tbe defendant pleaded, 1. Non Assumpsit; 2. Tbe Statute of limitations of three years. To tbe plea of tbe statute of limitations the plaintiff replied a subsequent promise by the executor, Helms, and the parties joined issue.

<p>Error to tbe Circuit Court of Pickens.</p> <p>Tried before tbe Hon. William R. Smith.</p>

Tried before tbe Hon. George Goldtbwaite. This was an action of covenant brought by Knox against Anderson.

Erroe to the Circuit Court of Tallapoosa. Tried before tbe' Hon. E. Pickens. Lester commenced a proceeding, under tbe statute, against Maban, before a justice of tbe peace, for tbe unlawful detain-er of tbe possession of certain lands described in tbe proceedings ; tbe jury, trying tbe case before tbe justice, rendered a verdict against tbe defendant, and judgment was given accordingly.

Errou to the Circuit Court of Sumter. Tried before the Hon. Wm. R. Smith. Held: as he had previously suffered from having his cotton held.

<p>1. A bill for a divorce is not demurrable, because it alleges two distinct grounds of divorce.</p> <p>2. When a bill alleges that the husband drove his wife out of his house, and that he lives in adultery with another woman, the case is within the statute, and is equivalent to an allegation that he “ abandoned her,” &c.</p> <p>8. In applications for divorce, when the answer admits (he marriage, proof that the parties had lived together as man and wife for more than forty years, is sufficient evidence of the marriage.</p>

<p>1. Proof that a witness, who had been supoenaed, and whoso deposition had been taken twelve days before the trial, was infirm and generally unable to leave home about the time when his deposition was taken, raises a prima facie presumption that he was unable to attend court, and, in, the absence of proof to to the contrary, showing his ability to attend, warrants the admission of his deposition.</p> <p>2, The measure of damages for the false warranty of the soundness of a slave, when the purchaser has not offered to return him, is the difference between his actual value and the amount which he would have been worth if sound.</p>

Tried before the Hon. Greo. H. Shortridge. This was an action on the case by Collier against Eorrest to recover damages for maliciously suing out seven attachments against the plaintiff. The declaration contained two counts, which are described at sufficient length in the opinion. The defendant pleaded, 1. Not guilty; 2.

Tried before the Hon. Wm. R. Smith. Detinue by Scott as trustee against Hopkins, for the recovery of certain slaves and other property.

<p>Appeal from the Court of Probate of Autauga.</p> <p>This was an application to the Court of Probate to grant letters of administration de bonis non, on the estate of John M. Creyón, deceased, to the sheriff of the county. The applicant alleged that said Creyón in his lifetime was indebted to said Margaret Brennan, and that the administrator had died without closing the administration. The court, upon hearing the evidence, refused to grant the letters of administration, • and dismissed the application. An appeal was taken to this court, and a motion is now made to dismiss 'the appeal.</p>

<p>Error to tbe Circuit of Pickens.</p> <p>Tried before tbe Hon. William R. Smith.</p> <p>This was an action of DETINUE, brought by tbe defendants in error, Cowsert and wife, against Mitchell. They sue and declare in their joint name for the slave in controversy. The parties went to trial, on the general issue and the statute of limitations.</p> <p>In the bill of exceptions, it is stated that the plaintiffs below, Cowsert and wife, “ claimed the negro by virtue of an alleged gift by the grandmother of the wife, before her marriage, in the State of South Carolina.” The parties married there, in 1835, and now reside there. “ They also relied,” says the bill of exceptions, “ on a deed from the said grandmother to the wife, conveying to her the said slave, about the 5th January, 1850. There was no pretence or proof of any separate estate in' the said Martha, in or to the said negro.” These are all the material statements of the bill of exceptions.</p> <p>The counsel for the defendant below asked the court to charge the jury, that the plaintiffs had improperly joined in bringing this action, and that therefore it could not be maintained. This charge the court refused to give, and the refusal of the court is assigned for error.</p> <p>This action is detinue; and it is held, that if a man detain the goods of a feme covert, which came to his hands before marriage, the husband can only bring detinue, because the law transfers the property to the husband; but both shall join in trover, because the wrong originally commenced when the wife was sole; and if such injury be punished, the wife herself, who received the injury, must be party to the action; but even then, if the possession be laid in both (as in the case at bar) it is ill, because if both were possessed, the law will transfer, in point of ownership, the whole interest to the husband. So,-if goods come into possession of a feme covert before marriage, detinue lies against the husband only, but tro-ver against both, because both are concerned in the trespass. Bac. Abr. Detinue, A. To the same effect is Draper v. Fulkes, Yelv. 165, 166; Nelthrop v. Anderson, 1 Salk. 118; Wil-braham v. Snow, 2 Saunders’ Hep. 135, whore it is also held, that if the wife joins, the declaration must state that the wife, while she was sole, lost the goods, that the plaintiff intermarried, and the defendant, after the marriage, converted them. See, also, Buller’s N. P. 50. In Whittingham v. Broderick, cited in note to Nelthrop v. Anderson, 1 Salk. 118, it was held, that baron and feme in replevin might join for taking their goods; but it is evident that this was owing to the peculiar nature of the action, and the fact that the avowry admitted the joint ownership. Here, however, the plea put in issue the whole declaration.</p> <p>1. A bill of exceptions will be taken most strongly against the party excepting. 5 Ala. Bep. 258; 6 Ala. Rep. 801.</p> <p>And every intendment, ■compatible with the facts stated in the bill of exceptions, will be made to sustain the ruling of the court below; and a party complaining of the refusal of the court to give a charge, must set out in the bill of exceptions a state of facts that authorized him to ask it. 17 Ala. Rep. 249.</p> <p>2. If the slave in question was held adversely at the time of the marriage of Cowsert, and was never reduced to possession after marriage, then the parties properly joined in this action, and there is nothing in the bill of exceptions adverse to this view. 8 Porter, 242, and cases there cited; Broome v. King Adm’r 10 Ala. 819; 2 Haywood, 300; 4 Bibb, 174; or if the only valid title of the plaintiffs below was under the deed of 1850, then, under the law for the protection of married women, the wife took a separate interest in the slave, and was properly joined with her husband. 12 Smedes & M. 347.</p>

<p>J. The act of 1848, which readers the defeodant in execution an incompetent witness on a trial of the right of property, is in derogation of the common law, and extends only to claim suits under the statute.</p> <p>2. In trespass against the sheriff for attaching plaintiff’s goods as the property of his vendor, the vendor is a competent witness for the plaintiff to prove the fairness of the sale to him.</p> <p>3. When a witness is excluded as incompetent hy the primary court, the Appellate Court, in reviewing its decision, can only look to the ground of objection raised in the primary court.</p>

Tried before the Hon. Thomas A. Walter. The question presented is, whether the defendant is liable in detinue, where the property sued for was, at the time the plaintiff’s right to the possession accrued, and when the action was brought, in the possession of the defendant’s bailee, for hire for an unexpired term. 1.

Ebbor to tbe Chancery Court of Greene. Tried before tbe Hon. W. W. Mason.

Tried before tbe Hon. John D. Pbelan. This was an action of assumpsit, brought by tbe plaintiff in error against tbe defendant in error, under tbe following circumstances: Tbe plaintiff bad made a contract witb one David Cbilders, and two other persons, by which be rented to them certain lands, and was to receive one-fourth of all tbe products, after deducting all expenses for bagging, rope, and hauling tbe cotton, for tbe rent.

Ereor to tbe Circuit Court of Wilcox. Tried before tbe Hon. E. Pickens. This was an action of assumpsit brought by Waldron and wife (for tbe use of tbe wife) against tbe plaintiff in error, for board, &e., furnished to bim and bis family. Tbe declarations contains only tbe common counts of indebitatus assumpsit and quantum meruit for board, &c., furnished plaintiff in error. At tbe March Term, 1851, there was a judgment by default rendered against tbe defendant below.

Tried before the Hon. John D. Phelan. .Upon the first point, that the trial ought to be by jury; the question is settled the other way, upon principle and authority, by the cases of Moore & Magee v. The Mobile Cotton Press, 9 Por. 679; Lockhart v. McElroy, 4 Ala,, 572; Chandler v. Faulkner, 5 Ala. 567; Eaulkner v. Chandler, 11 Ala. 725.

<p>Error to the Circuit Court of Tuslcaloosa.</p> <p>Tried before the Hon. John D. Phelan.</p> <p>This was a motion for a summary judgment by Cardwell against the plaintiff in error, as executor of James J. Foster, deceased. The notice alleged that Cardwéll endorsed a certain bill of exchange, which is particularly described, for the accommodation of said Foster, the drawer; that judgment was afterwards rendered against him on said endorsement, and execution issued thereon, and that he had been compelled to pay the amount of said execution to the sheriff. Judgment by default was rendered against the plaintiff in error, to reverse which he prosecutes this writ of error.</p>

<p>Erkor to tbe Circuit Court of Russell.</p> <p>Trid before tbe Hon. Jbbn J. Woodward.</p> <p>J. J. Segar and two others brought an action of assumpsit in tbe Circuit Court of Russell, against tbe plaintiff in error to recover sixty dollars, tbe price of a gin. Tbe declaration contains a count on a special agreement between tbe parties for the sale of the gin, in which it is averred that the defendant agreed to purchase the gin at sixty dollars, or to re-deliver it to the plaintiffs in a reasonable time, and that he has never re-delivered it, or paid for it, though often requested so to do. It also contains counts for goods, wares and merchandize sold and delivered; for work and labor done; for money lent; for money paid, laid out and expended; for money received to plaintiff’s use, and on an account stated.</p> <p>No pleas appear in the record, but the judgment entry recites that a jury was sworn to try the issue joined.</p> <p>On the trial, as appears by the bill of exceptions, the plaintiffs below proved that the defendant acknowledged that he, with the plaintiffs, had levied an attachment on the property of an absconding debtor; that they had resolved to make it pay their several debts; that the defendant was to take the gin at an agreed price; and under this arrangement, if the plaintiffs recovered of him, he would only have twenty-four dollars to pay for the gin. This was all the proof of the joint interest of the plaintiffs,' and the defendant moved the court to exclude it from the jury, which was refused, and the refusal excepted to. The court was requested to charge the jury, that if the facts were as proved by the witness, yet it furnished no evidence that the plaintiffs were jointly interested. This also was refused, and excepted to by defendant. There was proof offered also showing the contract in relation to the gin to have been this: that the defendant was to take the gin and try it, and if he liked it to keep it, otherwise to return it; and if he kept it he was to pay for it twenty-four dollars in cash, and thirty-six dollars in a proved account on a certain man named. The court charged the jury, that the proof was admissible under the declaration, and that if they believed it they could find for the plaintiffs, provided they believed from the testimony, that the defendant had not returned or tendered back the gin in a reasonable time. This charge was also excepted to by the defendant.</p> <p>The jury rendered a verdict for the plaintiffs for twenty-six 7\V dollars, and on the plaintiffs making oath that they were entitled and ought to have recovered sixty dollars, the court rendered judgment for the amount of the verdict, and costs against the defendant.</p> <p>The matters in the bill of exceptions, and the rendition of judgment on the verdict, are here assigned for error.</p>

Tried before the Hon. Robt. Dougherty. Yaughan sued Robinson before a justice of the peace, and judgment was rendered for the defendant, from which he appealed to the Circuit Court, and there filed his statement for forty-five dollars, to which Robinson pleaded non assumpsit.

Tried before tbe Hon. Bobert Dougherty. This was an action of assumpsit, by Boykin, McBae, & Foster, against Mrs. Louisa Collins, for goods, wares, and merchandize sold and delivered. Tbe declaration contained tbe common counts. On tbe trial, tbe plaintiffs read tbe deposition of one Helen, who was a clerk in their bouse in Mobile at tbe time tbe account was contracted on wbicb tbe suit was founded. This deposition was taken on interrogatories and cross-interrogatories. ' .

<p>1. When two persons sign their names to the blank form at the bottom of a ' writ acknowledging themselves security for the costs of suit, their contract is joint only, and not joint and several, either at common law or under the statute of this State.</p> <p>2. But when suit is instituted against one of them on their joint contract, he can only take advantage of the non-joinder of the other by plea in abatement.</p> <p>3. And when a motion is made for a summary judgment against one for the costs of the suit, and he does not interpose any objection on account of the non-joinder of the other, as a defence, he will be held to have waived it.</p> <p>4. A motion for a summary judgment against a security for the costs of suit may be made before the costs are taxed; and it is sufficiently certain by showing that it is for cost, without setting out the amount or items of cost.</p>

Ereor to the Circuit Court of Lowndes. Tried before tbe Hon. Bobert Dougherty.

<p>Erroe to tbe Circuit Court of Talladega.</p> <p>Tried before the Hon. Robert Dougherty.</p> <p>The plaintiff sued the defendant as administratrix, in assump-sit. The declaration contains seven counts. In the first three, which are for work and labor done, for goods, wares and merchandize sold and delivered, and for money paid, laid out and expended, it is averred that these several things were done at the special instance and request of John S. Rice, the intestate, in his lifetime, and that he promised to pay, &c., and that defendant, his administratrix, since his death, promised to pay, &c., but neither has paid. The next three are identical with the first, except that the promise to pay is averred to have been made by tbe administratrix after tbe death of tbe intestate.- The seventh count is insimul computasset against the administratrix in her representative capacity. There is no count on any special contract, nor any for money had and received.</p> <p>The defendant demurred to each count of the declaration; and pleaded non-assnmpsit, payment, and set off, in short by consent. The demurrers were overruled by tbe court, and tbe parties went to trial on tbe pleas.</p> <p>Tbe plaintiff introduced one Thomason as a witness, wbo deposed, tbat in tbe fall of 1847 tbe defendant’s intestate told witness tbat plaintiff and intestate were cropping together that year, on a place called the Herrald place; that intestate was to give plaintiff one-fiftb of the crop raised; that twenty-one bales of cotton, weighing four hundred and twenty-five pound each, were raised that year on the place; that cotton was worth from five to six cents per pound in the fall of 1847 and spring of 1848; that intestate died in the fall of 1847; that the twenty-one bags of cotton, before mentioned, were carried by witness to Wetumpka, at the instance of John W. Rice, agent for the defendant, who was then administratrix of intestate; and the whole cotton was there sold by said John W. Rice, as the agent of the defendant, contrary to the wishes of the plaintiff.</p> <p>On this proof, the court charged the jury that, “ if they believed, from the evidence, that the defendant, after the death of the intestate, and while acting as administratrix, either by herself or agent, took the control of, and sold the twenty-one bags of cotton, raised by the plaintiff and intestate, that she would not be liable in her representative character.” To this charge the plaintiff excepted; and asked the court to charge the jury, that if they believed, from the evidence, that the defendant, by herself or agent, sold the twenty-one bags of cotton, raised by plaintiff and intestate, after his death, with the cotton belonging to the estate, and whilst managing the affairs of the estate, she would be liable in her representative character; which charge the court refused, and the plaintiff excepted. The plaintiff then asked the court to charge the jury, that if they believed, from the evidence, that the defendant sold the cotton, by herself or agent, after the death of the intestate, that the term administratrix, used in the plaintiff’s writ and declaration, was a mere descriptio personae, and that they might find the defendant liable in her individual capacity; which charge the court also refused, and the defendant excepted’.</p> <p>The charge given, and the refusals to charge as requested are here assigned for error.</p>

<p>Error to the Court of Probate of Wilcox.</p> <p>On the final settlement of the estate of Robert G. Gordon, deceased, by Alexander McLeod, his executor, the distribu-tees of the estate appeared by attorney, and objected to the allowance of an item of five hundred dollars, with which the executor had charged the estate. No bill of exceptions was taken; but the judgment entry recites all the evidence which was introduced relative to the disputed item, and the judgment of the court, that it was insufficient to 'authorize the rejection of the charge.</p> <p>“ The decision of the court upon the proof, as shown in and by the record, allowing to the said executor the said sum of five hundred dollars,” is now assigned for error.</p>

Tried before tbe Hon. L. Gibbons.. It appears that two executions bad been issued against Staunton by a justice of tbe peace, which bad been levied on a horse by John A. Simmons, a constable. Tbe horse was sold at public sale, and was purchased by Robertas Simmons. Staunton afterwards moved tbe justice to set aside tbe sale, on tbe ground that one of tbe executions bad been quashed, and tbe other paid, before tbe horse was sold by tbe constable.

<p>Ereor to the Court of Probate of Dallas.</p>

Tried before the Hon. Geo. D. Shortridge. Assumpsit by 0. B. Grannis & Co. against the plaintiff in error as administrator cfe bonis non of James McCullough, deceased, on a note purporting to have been executed by the intestate; pleas (among others), non assumpsit and non est fac-tum. The plaintiff offered to prove at the trial the admissions of the previous administrator as to justness and genuineness of the note.

Tried before the Hon. John D. Phelan. When this case was reached on the call of the docket, the plaintiff in error, who was the defendant below, moved the court to strike the cause from the docket, on the ground that it had been previously disposed of; and to sustain the motion, proved that at the last term of the court the plaintiff had taken a nonsuit, which was entered on the minutes of the court, and that on a subsequent day of the term the non-suit was set aside, on the…

<p>1. The fact that a creditor was unable to collect his debt is evidence tending to show the insolvency of the debtor, and is admissible for that purpose; but it may be explained by showing that the inability to collect did not result from the debtor’s inability to pay.</p> <p>2. Tbe deelax’ations of one in possession of personal property, as to the ownership, are not evidence of the condition of the same property more than three years before the declarations were made.</p>

1. The legacies to the step-children did not vest on the testator’s death, but were contingent until the happening of the specified event. The bill of exceptions shows that Ellen was born in 1823, John in 1825, and Lawrence in 1827, while Amy, the testator’s daughter, was born in 1830 or 1831. The three step-children, then, would arrive at the age of twenty-one, if they lived, before Amy became of age, and probably before her marriage.

Tried before tbe Hon. John Bragg. This was an action brought by King against Johnson and wife, on a note made by Mrs. Johnson before her marriage with Johnson. Two writs were issued in this case precisely alike; one was executed on Johnson by the sheriff of Mobile, and the other on his wife, by the sheriff of a different county. It is not said in the endorsement on the writ, that they are both for the cause of action.

Tried before tbe Hon. N. Cook. This was an action of trespass guare clausum fregit brought as well to try titles as to recover damages from Stephens, tbe defendant, for bis wrongful entry and detention of certain premises described in tbe declaration.

Tried before the Hon. S. C. Posey. The sheriff of Franklin county made application to the Circuit Court to direct him how to apply certain moneys in his hands, arising from the sale of three slaves, which had been levied on and sold under sundry executions against James C. Kennerly.

On the final settlement of the estate of James Hudson, deceased, which was had at a special term of the Orphans’ Court of Tuskaloosa County, on the second Monday in April, 1847, the presiding judge made out his decree of distribution, in which he decreed four hundred and seventeen dollars to the administrator of James Hudson, Junr. This decree was signed by the judge, and endorsed, “Decree in Est. of James Hudson, deceased.

<p>1. When a judgment by default is rendered in the Circuit Court on an appeal from the judgment of a Justice of the Peace, and the cause of action-is an open account for a less sum than twenty dollars, the record must show that proof was made to the court of the correctness of the demand; and if it docs not, the judgment -will be reversed.</p>

Tried before tbe Hon. William R. Smith. This was a proceeding, by motion, against tbe sheriff of Eayette to recover of him tbe amount of an execution issued in favor of Elizabeth Dorrah against Thomas J. Parkenson, upon the suggestion that he could have made the money by proper diligence.

Tried before the Hon. Eobert Dougherty. Assumpsit by the defendants in error against Scott, to recover upon certain promissory notes made by him to their intestate. On the trial, Scott attempted to establish an indebtedness of the intestate to him for articles of provisions, liquors, &c., sold by him to the intestate in his life time.

<p>ERROR to the Circuit Court of Lowndes.</p> <p>Tried before the Hon. E. Pickens.</p> <p>Wall bi’ougbt debt against Hinson, on tbe record of Anson Circuit Court in tbe State of North Carolina, to wbicb Hin-son pleaded nul tiel record, and other pleas.</p> <p>On tbe trial in tbe conrt below, tbe plaintiff offered in evidence a record duly certified, in wbicb the judgment entry in tbe Circuit Court of Anson county, in North Carolina, is in these words: “ Tbe following jury was sworn and empannei-led (here follow twelve names,) who find all tbe issues in favor of tbe plaintiff, and assess bis damage to five hundred and eighty-five dollars; then judgment at September term, 1844, $585 ; tbe costs arising in tbis suit, due to tbe county, to witnesses, and officers of court, is $134 92.” The clerk of tbat court certifies tbat tbe record in which tbis entry appears, is “a true and perfect transcript and exemplification of tbe record,” &c. Tbe judge’s certificate, conforming to tbe requisition of tbe act of Congress, is also attached.</p> <p>To tbe reading of tbis record as evidence of a judgment against bim, tbe defendant, bj bis. counsel, objected, but bis objection was overruled, and be excepted.</p> <p>Tbe defendant requested tbe court to' instruct tbe jury, that tbe judgment entry contained in. tbe record, with tbe certificates, (wbicb were admitted to be regular;) was not sufficient of themselves to authorize a recovery in this case; wbicb tbe court refused, and instructed the jury that tbe record and judgment entry, with tbe certificates, were sufficient to authorize a recovery, without further proof. To tbe refusal of tbe court to charge as requested, and to tbe charge given, tbe defendant excepted, and tbe case is brought here for revision on writ of error.</p> <p>Tbe court erred both in admitting tbe record as evidence, and instructing tbe jury that tbe record and judgment entry and agreement wore sufficient to authorize a recovery without further proof. Tombecbee Bank v. Strong’s Ex’r. 1 S. & P. 187 ; same Bk. v. Godbold, 8 Stewart, 240.</p> <p>Tbe pleadings of plaintiff below allege there was a judgment in North Carolina for $719 fW Tbe defendant below alleged by plea that there was no such record. If this court should be of opinion that tbe judgment entry is sufficient as to tbe amount found by tbe jury, there is certainly no judgment for the cost, and tbe jury only certify $585; and unless there is a judgment for the cost, tbe court instructed tbe jury erroneously, and also erred in admitting tbe record as evidence. If tbe record was offered as evidence only of a judgment for $585, tbe plaintiff should have disclosed that to be tbe purpose for wbicb be offered it. Kenan v. Holloway, 16 Ala. Rep. 61. If tbe record was evidence, tbe charge1 of tbe court was too broad. Under tbe pleadings, tbe special instructions, if any was necessary, should have been asked by plaintiff below.</p> <p>Included in tbe judgment, if there is any, is tbe clerk’s charge for tbe transcript and bis seal, and called by bim costs. There is no judgment, but only a memorandum of tbe clerk.</p> <p>1. Tbe judgment entry is sufficient. It contains tbe parties litigant, the verdict, and tbe amount of the judgment. These are the only facts which the judgment need show.</p> <p>2. Bach State has the right to determine its own forms of pleadings and judgments. If the record shows who were the parties, that a verdict was rendered, and the amount of the judgment, and the certificate conforms to the act of Congress, our courts are bound to accord to it absolute verity. Crawford v. Simonton, 7 Porter, 110; McRae v. Stokes, 3 Ala. 401; White v. Strother, 11 ib. 720. The act of Congress makes the certificates supply the place of evidence, and they prove the proceedings to be in due form, and that the court had jurisdiction. Several of the decisions cited below hold, that this court will ex officio take notice of the laws and forms of judicial proceedings in other States. Could not a recovery be had upon the record of a judgment from Louisiana, or New York, or any other State where the common law has been abolished or changed, without any other proof than that afforded by the certificates. Could not a recovery be had upon a judgment recovered in a statutory action; as in our trials of the right of property; or summary proceedings against officers? 5 Litt. 350; 4 Oowen’s R. 296; 1 Johns. Cases, 238; 9 Cranch, 122 ; 7 ib. 48; 13 Serg. & R. 362.</p> <p>3. The exceptions raise only the plaintiff’s right to recover. No point is made by the record as to the amount of the recovery to which he is entitled. Nor is any discrimination made between the different items which constitute his demand.</p>

Tried before the Hon. G-eorge Goldthwaite. In this case a judgment was rendered in favor of the defendant in error against tbe plaintiff in error, at the Fall Term, 1848, of the Circuit Court, -for five hundred dollars damages, with a remittitur of the darnages.

Tried before the Hon. J. W. Lesesne. This bill was filed by the plaintiffs in error against the defendants in error, and sets out the following state of facts. A judgment by default, in assumpsit on a promissory note, was rendered at the Spring Term, 1845, of the Lowndes Circuit Court, in favor of the complainants against the defendants in error.

..Tried before tbe Hon. E. Pickens. This was an action of assumpsit, brought by tbe plaintiff, to recover tbe amount of a note given to tbe plaintiff by William W. Black, for .sixty-seven dollars and tbirty-tbree cents,_ wbicb tbe plaintiff alleged that tbe defendant, Margaret Black, promised to pay.

Eeros, to the Circuit Court of Barbour. Tried before the Hon. George D. Shortridge. This was an action of assumpsit by the Bank against McDonnell, the plaintiff in error. Pleas: Non assumpsit, statute of limitations and payment. Verdict and judgment for the Bank.

<p>1. When two persons jointly commit a trespass, the injured party may sue them severally; yet he can have but one satisfaction, and when separate judgments are,recovered ho must elect on which recovery ho will seek it.</p> <p>2. A plea setting forth a former recovery agaiust a co-trespasser, and a voluntary payment of the damages and cost to the clerk in open court, by the defendant in that judgment, without averring that the plaintiff accepted such payment in satisfaction of his recovery, is bad on demurrer.</p> <p>3. when the injured party has severally sued two or more joint trespassers, and recovered separate judgments against them, his right to elect de melioribus damnis is not determined, until lie sues out execution, or accepts satisfaction of one of the judgments.</p>

Tried before the Hon. Geo. Goldthwaite. Where the holder of a bill and endorser both reside in the same place, the notice to charge the endorser must be personal, or notice must be left at his… Held: that as the Bank of Montgomery was the agent of the Bank of Augusta, the plaintiff, and had done that which it was the privilege or right of its principal to do, namely, to give notice through the post-office, such notice was sufficient.

Tried before the Hon. E. Pickens. This was an action of assumpsit by Wooding against Smith, for the use and occupation of land.

<p>Motion for a mandamus against the Circuit Judge of the eighth judicial circuit.</p> <p>1. Tbe order granting a new trial on payment of cost was an absolute grant of a new trial. Wheatly v. Price, 3. J. J. Marsh. 169; Dana v. Gill, 5 J. J. Marshall, 243; Johnson v. Taylor & Beed, 3 Smedes & Mar. 99; Beese v. Billing, 9 Ala. Bep. 263; Stephenson v. Mansony, 4 Ala. Bep. 317; Whitaker y. Sanford, 13 Ala. Rep. 522; Lyon v. Long, 6 Ala. Bep. 103. Cost could not be paid before it was taxed, and in many instances it could not be taxed during the term of the court. Southerland v. Sheffield, 2 Wend. 293.</p> <p>2. A mandamus is the proper means of obtaining relief. Stephenson v. Mansony, 4 Ala. Bep. 818:</p> <p>1. The judgment was once in force, and unless expressly opened or annulled during the term, must continue in force until reversed by a superior tribunal.</p> <p>2. The order that a new trial be granted was clearly conditional, and the condition a condition precedent. See Sands y. McLellan, 6 Cow. 582; Somers v. Sloan, 3 Harrison, (New J. B.) 46, overruling Gilliland v. Bapplea, 3 Green. 139; Rixey y. Ward, 3 Randolph, 52; Moberly v. Davar, 5 Black-ford, (Ind. B.) 409; Jackson v. Eddy, 2 Cowen, 598, 600; Dodsley v. Lady Hamilton, 5 Taunt. 1, where it said that wherever a favor is granted on terms, performance is a condition precedent.</p> <p>3. It may be said that the condition was impossible, as it extended beyond the term. If so, the right could now vest. See authorities cited in Parsons’s opinion in Edwards v. Lewis, 18 Ala. 494; Bacon’s Ab. Vol. 1, title condition, M. page 650; Taylor v. Bullen, 6 Cowen, 624 7; Wood v. Worsley, 2 TT. Blackstone, 574; and note (a) same case, page 582; and 6 Durnford & East. 710.</p> <p>4. Some cases are cited, one from Miss, recognizing one in 5 J. J. Marshall, where it is stated that such an order is not conditional, but that the party has ~a right to his costs, which may be enforced by attachment or execution. This is denied in the English cases, and in a case in Cowen, where it said that the order is a favor to the party applying for it, and his acceptance of it with the condition depends on his own volition. See Hand. v. Lady Dinely, 2 Strange, 1220; Stokes v.Woodson, 7 Sum. R. 6; Note to Jackson v. Eddy, 2 Cowen, 600; Ericker v. Eastman, 11 East., 319.</p> <p>5. If tbe order required tbe payment of costs, within tbe term, then tbe judgment was in force at tbe conclusion of tbe term, and tbe defendant Lowe would not be bound for any costs, afterwards accrued, because, the case was at an end. And tbe party would have a right to prepare for trial, if be chose to do so, as tbe defendant would not be prejudiced by bis doing so.</p> <p>6. Tbe understanding among tbe lawyers of Montgomery, as to tbe practice on such orders, would be evidence for the defence in case of a suit by the client against bis attorney, for negligence, but is no evidence of tbe law.</p>

Ebroe to the Circuit Court of Wilcox;. Tried before the Hon. N. Cook.

Tried before the Hon. Ceo. D. Shortridge. Detinue by the plaintiff against the defendant in error, for certain slaves. By the bill of exceptions it appears, that Zachariah Neal died, having made his will, which was duly admitted to probate, by which Frances Neal, his widow, was made residuary legatee of his estate, after the payment of his debts and a few specific legacies.

Tried before the Hon. J. W. Lesesne. The bill alleges that the administrator in chief of Elliott had, without an order of sale from the Orphans’ Court, sold, and conveyed on the books of the Bank, certain stock belonging to the estate of his intestate, to one Munroe, for its full value; that the proceeds of the stock had been appropriated by the administrator to the benefit of tbe estate, and that the Orphans’ Court had recognized -the sale, by passing bis accounts, in which…

Tbis was a motion by MeElroy, as executor of Isaac MeElroy, deceased, against tbe plaintiff in error, for a judgment for costs.

MOTION to set aside a judgment rendered on a previous day of the term, quashing an execution for costs, which bad issued from tbe Appellate Court. Tbe facts upon which tbe motion was based, appear in tbe opinion. 1. Costs were not given at common law eo nomine, but were in fact always included in the quantum of damages, in actions where damages were given, or entered on tbe roll, as increase of damages, by tbe court. Bacon’s Ab. tit. Costs, A, note a, 484; 8 Bl.

Tried before the Hon. John Bragg. This was an action of assumpsit by the plaintiff in error against the defendant, as administrator de bonis non of William Godbold, deceased, to recover the value of certain property which had been sold by the administrators in chief, and which the declaration alleges was by law exempt from sale.

Tried before the Hon. Geo. W. Stone. This was a proceeding by garnishment in favor of the defendant in error against the plaintiff in error in the court below. The summons of garnishment was executed upon the plaintiff in error in Mobile county, and the attachment suit out of which it grew was pending in the Circuit Court of Macon county. The garnishee failed to appear and answer, and judgment nisi was rendered against him.

Tried before the Hon. John D. Phelan. This case was brought into tbe Circuit Court, by a certiorari to tbe judgment of a justice of tbe'peace.

<p>X. A certiorari should not he granted to remove into the Circuit Court proceedings had before a justice of the peace, -when the .petition does not show any reason why the petitioner did not appeal from the judgment of the justice.</p> <p>2. But when a certiorari is awarded upon a petition which does not set forth such a state of facts as properly justifies its issuance, the Circuit Court must proceed with the trial de novo, without regarding the defects of the petition.</p>

<p>ERROR, to tbe Court of Probate of Tuslcaloosa.</p> <p>Ormond & NICOLSON, for plaintiff in error.</p>

Tried before tbe Hon. Vm. R. Smith. This was an action of debt instituted in the name of tbe Governor, for tbe use of Bird Ivey, against tbe defendant in error, on bis official bond as sheriff of Pickens county.

Ebkor to tbe Circuit Court of Perry. Tried before tbe Hon. George Goldtbwaite. This was an action of debt on a judgment r eco ver d by Barney against tbe plaintiff in error and one Bell, as partners under tbe firm name of Bell & Martin, in tbe Circuit Court of Perry. Tbe defendant pleaded 1. Nul tiel record; 2.

Erbob, to the Court of Probate of Limestone. On the final settlement of tbe estate of Patroclus Lewis, deceased, by Samuel J. Jones, the administrator, the latter was charged with an item of $1,200, for a balance due on a note for a large amount, made by one Samuel Jordan, deceased, and payable to said Lewis.

<p>1. In an action to recover damages for injuries done to plaintiif’s hogs, which had broken into defendant’s enclosure, the defendant cannot recoup for damages done to his crop by the hogs, when it is shown that his fence was not a “lawful fence” agreeably to the statute.</p> <p>2. The court may, in its discretion, refuse a motion to have a person, who is about the court, but has not been subpoenaed, brought in to testify as a witness in a cause.</p>

Hon. J. W. Lesesne, presiding. The facts of this case, as they are exhibited by the bill, answer and exhibits, may be thus stated: William Jones, one of the plaintiffs in error, as executor of Hiram Cheesborough, deceased, filed his bill in the Chancery Court of Mobile, to foreclose a mortgage executed by John Mayrant and wife, on certain real estate described in the pleadings of this case, and at the April Term, 1848, obtained a decree of foreclosure, by which the Register…

<p>Error to the Circuit Court of Fayette.</p> <p>Tried before tbe Hon. William R. Smith.</p>

Tried before the Hon. W. W. Mason. Walker and Wife filed their bill against the plaintiffs in error, setting forth that John B. Williams married Winifred, daughter of Samuel Hayes, in the State of North Carolina, ■ about the year 1823; that said Hayes, before Williams left that State, put him in possession of a negro girl named Hannah, declaring that he did not give said girl to Williams, but placed her in his possession for the benefit of such children as his daughter,…

Ebror to the Circuit Court of Morgan. Tried before tbe Hon. S. C. Posey. This was a motion by tbe Bank for judgment against tbe plaintiff in error, on a promissory note of which the following is a copy: “We, Amos B. Murrah, as principal, and Wm.

Tried before the Hon. Thomas A. Walker. The plaintiff in error, as executor of Andrews, filed his petition for a supersedeas, to quash an execution.

<p>Error to tbe Court of Probate of Marshall.</p> <p>Motion to dismiss tbe "Writ of Error.</p>

Tried before the Hon. Robert Dougherty. This was on action of assumpsit, brought by the plaintiff to recover of the defendant for the board of a minor by the name of Amanda Phipps. It appeared that the father and mother of the child were both dead, and that they left five small children; three of whom were taken by the plaintiff to be raised, and Amanda was taken by Mr. Dozier. The girl left the house of Dozier and came to the defendant’s, and remained there for several days.

Tried before tbe Hon. Greorge G-oldth waite. Assumpsit by tbe defendant in error. Tbe declaration contained two counts, tbe first on a lost promissory note, and tbe second, indebitatus assumpsit. There was a demurrer to the first count, which was sustained by tbe court below, and tbe parties went to trial on tbe second.

Tried before the Hon. Geo. D. Shortridge. This was an action of trespass by Harris against Lightsey, “brought to recover damages of the defendant, for suing out a void execution, before one Anderson B. Davis, an acting justice of the peace in and for Perry county, and causing the same to be levied by one Leroy Davis, a constable in and for. said county, on the cotton of plaintiff, and causing said cotton to be sold by said constable, under said void execution.” The defendant…

Tried before the Hon. E. Pickens. This was an action of trespass vi et armis, brought by tbe plaintiff in error against tbe defendants, for injuries to tbe person. Tbe defendants pleaded tbe general issue, with leave to give any special matter in bar, in evidence.

Tried before the Hon. George D. Shortridge. The Branch Bank at Montgomery recovered a judgment against Duncan McRae and Samuel N. Brown, in the Circuit Court of Montgomery, for two hundred and forty-five dollars. After tbe recovery of the judgment Brown was declared a bankrupt, and obtained his certificate of discharge.

ERROR the the Chancery Court of Pike. Tried before the Hon. J. W. Lesesne. This bill was filed by the plaintiffs in error, asking a perpetual injunction against a judgment at law.

Tried before the Hon. John D. Phelan. The Branch of the Bank of the State of Alabama at Montgomery, recovered a judgment against lucien Reeves on the 27th November, 1841, for $430 fvV, on which execution regularly issued. Four other executions were subsequently issued at irregular periods on the same judgment, the last of which was issued on the 27th November, 1850.

Tried before tbe Hon. Thomas. A. Walker. The facts set out in this record, do not show a partnership between plaintiff and defendant; but an employment of plaintiff, for which he was to receive of defendant a portion of the product of his labor. Moore v. Smith, January Term, 1852.

Tried before the Hon. George Goldtbwaite. This was an action of assumpsit, by the Branch Bank against Parrish. There was a special count, and the common counts for money lent, and money had and received.

Tried before tbe Hon. Jbbn D. Pbelan. Tbis was an action of debt, brought by John Collins against Johnson and wife, on a bond executed by James Martin and Sarah Martin, now tbe wife of tbe defendant Johnson, whereby they bound themselves to John Collins in the penal sum of thirty-two hundred dollars, with a condition, to be void if the obligors, within a reasonable time, should make or cause to be made unto the obligee a good and lawful title, free from all incumbrances, to…

<p>Appeal from the Chancery Court at Cahaba.</p> <p>Hon. W. W. Mason, presiding.</p>

Tried before the Hon. L. P. Walker. Motion against county treasurer under the statute. The plaintiff in error moved for judgment against the defendant as treasurer, of the county of Lauderdale, in the Circuit Court of said county, on a certificate of allowance of a claim in favor of John R. Henry, which is in the following words and figures: “ The State of Alabama, Lauderdale county. Commissioners’ Court, Special Term, 4th April, 1849.

Tried before tbe Hon. E. Pickens. Tbis was an action of detinue, brought by Shelby against McGuire, to recover a slave.

The writ of error in this case was sued out to reverse a final decree of the Court of Probate for the settlement and distribution of an estate. Three errors are assigned, viz: 1. That there were minor heirs, and that it does not appear by the record that they were represented on the settlement by a guardian, or guardian ad litem. 2.

Tried before the Hon. D. G\ Ligón. The bill in this case alleges, that in the year 1843, the plaintiff in error filed his original bill in equity, setting forth a partnership between the plaintiff in… Held: and the complainant placed in the same situation as he would have been, had it never been rendered. It also prayed an injunction, restraining the execution of the decree.

Tried before tbe Hon. Jobn Bragg. 1. It was error to take judgment by default, and compute tbe damages (in suit upon note made in Mississippi) without proof of tbe rate of interest of tbe State of Mississippi. Dunn y. Clement, 2 Ala. Rep. 392; Evans v. Clarke, 1 ■ Port. 388 ; Evans v. Erwin et al. 1 Port. 390. Tbe judgment in sucb case must be reversed. It is not sucb a clerical error as can be corrected by reducing tbe judgment to tbe amount of principal due on tbe note.

ERROR, to the Circuit Court of Montgomery. Tried before tbe Hon. George Goldtbwaite.

Eeeor to tbe Chancery Court of Mobile. Tried before the Hon. J. W. Lesesne. 1. Elizabeth C. Acre was a devisee under the will, which, was sought to be set aside. She was an essential party. The bill prayed that she be made a defendant; but she was never brought before the court by service of process; nor did she voluntarily appear and submit to its jurisdiction.

Tried before the Hon. Wm. R. Smith. This was an action of assumpsit, for services as an attorney at law and solicitor in chancery. The declaration contains the common counts only, three in number, for an indebitatus assumpsit, for work and labor, and on a quantum meruit.

Tried before the Hon. Robert Dougherty. This was an action of COVENANT, brought to recover damages for the false warranty of a slave, sold by the defendants to the plaintiff, on the first of April, 1850. It appeared, that the slave did ordinarily good work on the plantation of the plaintiff for several months after his purchase, and in May or June after the purchase, the plaintiff expressed himself better pleased with the boy than he bad expected he should be.

Tried before tbe Hon. Thos. A. Walker. Tbis was an action of assumpsit by tbe plaintiff in error against tbe defendant. G-eueral issue, and verdict for tbe defendant.

Tried before the Hon. W. W. Mason. Sarah A. Swoope filed her bill, against the plaintiff in erról-as administrator with the will annexed of Henry S. Mason, deceased, setting forth that said Mason died in September, 1843, leaving a large estate both real and personal, which he disposed of by his will, which was duly made and recorded; that among other bequests, it contained the following: “I also wish that my sister-in-law, Sarah A. Swoope, be considered as one of my heirs so…

Tried before the Hon. E. Pickens. This was a trial of the right of property of certain slaves, which had been levied on by an execution in favor of the defendant in error against one Hudson.

Tried before tbe Hon. L. P. Walker. This was an action, (commenced by attachment) on a promissory note executed by Evans to Bell, purporting to have been given “ for tbe rent of land.” On tbe trial, tbe defendant offered to prove “ that after be bad passed into tbe possession of the land, for the rent of which the note was given, the plaintiff, upon being applied to by the defendant’s overseer to repair the fencing around said land, said that it was his (plaintiff’s)…

Tried before the Hon. George H. Shortridge. This was an action of trespass against the defendant, who was a Marshal of the United States, for levying on a certain stock of goods, which the plaintiff claimed under a deed of assignment executed to him by Theron Brown on the 10th May, 1845. “ To prove, among other things, the amount of the assets included in said deed of assignment, the plaintiff introduced one Perkins as a witness, who stated that he was the clerk of the said…

Tried before the Hon. W. W. Mason. Edwards & Walke filed this bill to restrain the collection of a judgment which the State Bank at Tuskaloosa had recovered against them.

Tried before tbe Hon. Robert Dougberty. Whitman sued out a writ of attachment against one Powers, and summoned Harrell as bis debtor. Harrell appeared, and answered, denying any indebtedness; the plaintiff contested the truth of the answer, and an issue was made up under the statute.

<p>Error to the Circuit Court of Montgomery.</p> <p>Tried before the Hon. John D. Phelan.</p> <p>John McCall, the intestate of the plaintiff, as the evidence tended to show, took possession of certain unoccupied lands and premises, without any claim of right or title thereto; but because, as he said, “he knew the titles were destroyed, and that in consequence he believed the true owner could never recover them.” Afterwards, McCall was sued for the possession of the lands by one Pryor, and, during the pendency of the suit, Capehart & Harbin, who claimed title to said lands and premises under a purchase made by them at sheriff’s sale, with the knowledge of how McCall’s possession was acquired, covenanted and agreed with him, that if he would deliver to them the possession of said lands and premises, they, in consideration thereof, would pay to him five hundred dollars, and would further save harmless and indemnify him against all claims for rent of said lands, and particularly against all liability to said Pryor for rents, in the suit which he had brought against him, The said sum of five hundred dollars was paid to McCall, and Capehart & Harbin were put in possession of the lands. The suit of Pryor was afterwards determined, in which he recovered the possession of said lands and ten hundred and forty dollars damages, which judgment was satisfied by McCall before the institution of this suit. This suit was instituted by McCall’s administrator, to recover for an alleged breach of said covenant in not paying said sum of ten hundred and forty dollars.</p> <p>The court charged, 1. That if McCall had taken possession of said lands when they were unoccupied, without any right or title to the same, and for the purpose of keeping the true owner out of the possession, he was a trespasser; and if he sold his possession as a trespasser, the contract of sale was void, and this, notwithstanding the purchaser may have known at the time of the contract all the facts relating to his possession.</p> <p>2. That if the suit for the recovery of the lands had been commenced by Pryor, and was pending at the time of the execution of the covenant sued on, the same was void for maintenance.</p> <p>These charges were excepted to, and are here assigned for error.</p> <p>1. A person in possession of lands, without any title either legal or equitable, may for any consideration paid, or without consideration, agree to surrender that possession to one claiming title, and such agreement will not be against public policy; and the agreement so to surrender possession will not be champertous, although a consideration be paid for such surrender, and a covenant to indemnify against rents, because 1st. An agreement to surrender possession of lands, tbe subject of a" suit pending, by one claiming no title to one claiming title, cannot be said to be a bargain for and sale of tbe lands or any part thereof; ■ and this is necessary to constitute champerty. Story on Contracts p. 511, § 581, and authorities there cited; 2d. Because a man has a right to buy his peace, and therefore one claiming title cannot,, by paying a trespasser to surrender to him the possession, be said to “foment litigation and pervert the objects of the law,” although a third person may be prosecuting his suit for the recovery of the same lands. See same page and section of Story on Contracts.</p> <p>2. Such covenant is not maintenance: 1st. Because the defendants had an interest, and claimed title to the lands under and by virtue of a sheriff’s sale to them; and it is not unlawful to maintain in such a case. Story on Contracts, p. 508, §578, p. 509, § 579 ; and see Pindon v. Parker, 11 Mees. & Welsby 675, 682 ; 3 Cowen 647; indeed, a supposed interest is sufficient to justify the party in maintenance, however small that interest may be, and whether certain or uncertain, vested or contingent. Story on Contracts, p. 510, § 579, before cited, and the authorities there referred to. In the case at bar, the defendants state in their covenant, under their hands and seals, that they claim the lands, having purchased the same at sheriff’s sale, sold as the property of Henry Hall, and the lands are said to be known as the lands of Hall; and this is binding on defendants. See 3 Cowen 647, before referred to.</p> <p>3. But there must be an agreement to maintain the suit, either by advancing money for that purpose, or an agreement to pay costs. See the authority before referred to. In the case at bar there is no such agreement; the agreement on the part of McCall was, to surrender possession by a particular time, in consideration of which promise or covenant defendants paid him $500, and covenanted to protect him against paying rents to any one, particularly to Pryor, and released McCall from liability to- pay rents to them, defendants, who claimed to be the true owner. Here is no agreement to pay costs, or to advance money to defend the suit, and this is necessary. See tbe authority above referred to. And a covenant to indemnify against costs and damages is not maintenance. See Campbell v. Jones, 4 Wend. 306; Williamson v. Henly, 6 Bingham 299; 19 Eng. Com. Law Rep. 87.</p> <p>1. As between McCall and defendants, defendants were the owners of said lands and premises; they, defendants, having and claiming title to the same, and McCall being, as he acknowledged, an open trespasser in the possession of them ; he having taken possession for no laudable purpose. There was no sufficient consideration then to sustain the promise made by defendants to McCall, to indemnify him; besides, it is against public policy, to permit one in the unlawful possession of property to stipulate for payment for its restoration to its true owner. “ An enlightened morality and the dictates of honesty denounce such a contract, and the law cannot lend its sanction to enforce it.” See McCaleb, use, &c. v. Price, 12 Ala. Rep. 753, which in principle is decisive upon this point; see also, Duncan, use, &c. v. Hall, 9 Ala. 128.</p> <p>2. The covenant between the parties was void also, on the ground of maintenance. McCall was a naked trespasser; a suit was pending against him on account of his said trespass; the stipulation was, to save him harmless from the consequences of said suit; the effect of which was to maintain him unlawfully in the same.</p>

Ereor to the Circuit Court of Sumter. Tried before the Hon. Turner Reavis. This was an action on the case brought by plaintiff in error against the defendant, for wrongfully and vexatiously suing out an attachment against the plaintiff ancillary to a suit at law.

Eebok to the Circuit Court of Russell. Tried before the Hon. E. Pickens. The plaintiff commenced an action of assumpsit against Bryant S. Mangham, and pending the suit, sued out an ancillary attachment, which was levied on certain property; and Laxla Edwards, the defendant in error, was also served with a writ of garnishment. The attachment was issued on the 24th of November, 1848, and the defendant summoned as garnishee on the 30th of the same month.

Tried before tbe Hon. Jobn D. Pbelan. Assumpsit by plaintiffs in error against tbe defendant, wbo was sheriff of Perry county, “to recover tbe sum of $99T\2T, tbe surplus arising from tbe sale of William A. Strong’s land under a venditioni exponas, issued upon a judgment rendered in tbe County Court of Perry, in a certain case of attachment, wherein John H. Reid was plaintiff, and said Strong was defendant, being money bad and recived by defendant for tbe use of plaintiffs.”…

Fleming Jordan, executor, and Martha H. Weaver, executrix of George I. Weaver, deceased, filed their report of the insolvency of their testator’s estate, in the office of the Clerk of the County Court of Madison, on the 1st November, 1841. The report is signed by Jordan only, and verified by his affidavit.

<p>Error to the Circuit Court of Morgan.</p> <p>Tried before the Hon. L. P. Walker.</p> <p>This was a motion by the plaintiff to recover a judgment against the defendant for the sum of two hundred and fourteen dollars and seventy-nine cents, besides interest thereon. The notice of tbe motion sets forth the grounds on which it was made, which are, that the plaintiff and defendant became joint securities for one Thomas Beed on a promissory note to the Branch Bank at Decatur, upon which suit was brought by the Bank, and a joint judgment recovered against Beed, and also against the plaintiff and defendant, for the sum of three hundred and forty dollars debt, besides the cost, which judgment the plaintiff himself paid. Beed, the principal, is insolvent, and the defendant was sought to be charged with one half of the judgment and cost, as a co-security, which the plaintiff had thus paid. The defendant demurred to the notice, and the demurrer was sustained by the court. To reverse the judgment sustaining the demurrer, the plaintiff prosecutes a writ of error to this court.</p> <p>The statute of 1821 (Clay’s Digest 531 § 4) gives the remedy by motion against obligors, &c., for their respective shares, in favor of the security, or securities, against whom judgment has been obtained and execution awarded, when the principal is insolvent. This court has fully passed upon this statute, and sustained, by that decision, the right of the plaintiff here to proceed by the summary mode of notice and motion. Boberts v. Adams, 6 Porter 361.</p> <p>The statute of 1839 (Clay’s Digest 533, § 12) gives the summary remedy by motion, to a surety who has been sued against a co-surety who has not been sued; but it does not require proof of the insolvency of the principal.</p> <p>Now it is true, that the letter of neither act embraces this case; but certainly the spirit of each does. The allegation of the insolvency of the principal does not take away the remedy under the act of 1839. The plaintiff had a right to proceed in a court of equity, or to sue at law, or to avail himself of the summary remedy given by statute. Couch v. Terry’s Admrs., 12 Ala. 225; Sherrod v. Bhodes, 5 ib. 683; Young v. Clark, 2 ib. 264.</p> <p>1. The statute of 1821 (Clay’s Digest 531, § 4) contemplates that the remedy provided by it shall be given, only wben judgment bas been rendered and execution awarded in favor of tbe common creditor against one surety, a co-surety not having been sued by the creditor; or if one is sued, and judgment obtained against him, that on his motion, judgment should be rendered against each co-surety, for the amount for which each is liable. It does not authorize a motion to be made by one surety against another, when both are sued by the common creditor, and judgment obtained by him against both. The object of the statute was to place the sureties upon an equal footing, by giving to the surety against whom, the creditor obtains judgment, a speedy remedy to compel all the sureties to contribute to the payment of a common liability. If there was already a judgment and execution in favor of the common creditor against both sureties, this remedy was unnecessary. The fact that the plaintiff in this case paid the judgment, does not affect this question. It is not the payment, but the rendition of judgment in favor of the creditor, that gives the remedy.</p> <p>But suppose we adopt the construction contended for by the plaintiff in error. Immediately on the rendition of judgment in favor of the creditor, Nation was entitled to a judgment against Boberts, Roberts was equally entitled to a judgment against Nation, and this too when the creditor had a judgment against both.</p> <p>2. Nor can the notice in this case be sustained under the act of 1839, (Clay’s Digest 533, § 12.) That statute was passed in aid of the statute of 1821. Under the act of 1821, the surety against whom the creditor obtains judgment was not entitled to the statutory remedy, unless the principal was insolvent. He could not sue until after the creditor obtained judgment against him; and if there were ten sureties, and eight of them were insolvent, judgment could only be rendered for one tenth of the amount for which the surety suing was liable. To remedy these defects, the statute of 1839 was passed. To maintain the remedy given by the statute last cited, the plaintiff must allege in the notice, 1. That a suit is pending against him as surety, founded on a bill, note, bond, covenant, or other written instrument; 2. If he desires'judgment for more than an aliquot portion of the debt, that the other sureties are insolvent. Broughton v. Robinson, 11 Ala. 922.</p> <p>3. Tbe cases in 2 Ala. 264, 11 ib. 922, and 12 ib. 225, construe only tbe statute of 1839. This notice was evidently framed in view of tbe remedy given by tbe statute of 1821. Tbe allegation of tbe principal’s insolvency, and of tbe rendition of judgment against tbe plaintiff, shows this conclusively.</p> <p>4. Tbe notice does not connect tbe defendant as surety, witb tbe judgment, wbicb tbe plaintiff alleges be paid. It is true, tbe plaintiff alleges that be and tbe defendant were sureties for Reed, on a note described as payable to tbe Bank. But it is not alleged, that tbe judgment paid by plaintiff was rendered on that note. This was a material fact, necessary to be proven, and if a judgment by default bad been rendered against tbe defendant, a fact wbicb tbe record must have shown. Brown et al. v. Wheeler, 3 Ala. 289.</p>

EkboR to tbe Chancery Court of Mobile. Tried before tbe Hon. J. W. Lesesne. This bill was filed by William Weatherford, claiming to be the only lawful son and heir of the late William Weatherford, sen’r, and as such entitled to the whole of his estate.

Eeror. to the Court of Probate of Madison. The facts shown by the record in this case are identical with the facts in the case of Steele v. Weaver’s Executors, (see page 540) and it is therefore unnecessary to repeat them here.

Tried before tbe Hon. Jobn D. Pbelan. This was an action of assumpsit, brought to recover for work and labor done by tbe plaintiff’s slave.

Tried before the Hon. W. W. Mason. • On the part of the plaintiff in error, Moody, it 'is insisted that he has a good and perfect title to the lands described in his answer, which ought to have been recognized by the court below. His note is dated 2d January, 1887; bis judgment, 5tb February, 1839; bis deed, 5th August, 1839. The alleged agreement is dated 12th January, 1837; the patents are dated 20th September, 1839.

Ebeor to the Circuit Court of Marion. Tried before the Hon. Turner Beavis. This suit was commenced by Moses Purser against James W. Homer, before a justice of the peace, to recover the sum of fifty dollars. After the rendition of judgment by the justice, the cause was removed to the Circuit Court by certiorari.

Tried before tbe Hon. John Bragg. Daniel McLeod, tbe defendant in error, having obtained a judgment against one John Ashby, sued out a writ of garnishment against “tbe firm of James Reid & Co.” as tbe debtor of said Ashby. Tbe garnishees failed to appear, and judgment nisi was rendered against them, which was aftdrwards made final.

Tried before the Hon. John Bragg. This was an action of detinue by McCoy & Johnson against Holmes & Bott, surviving partners of Holmes, Bott & Earle, for seventy-eight bales of cotton. The case was submitted upon an agreed statement of facts, and judgment thereon was rendered in favor of the plaintiffs. The agreed statement of facts is set out at sufficient length in the opinion.

Ereos to tbe Circuit Court of Greene. Tried before tbe Hon. Jobn D. Pbelan. 1. Tbe action of trover is an equitable action, and tbe defendant bas a right to give in evidence any fact or facts which will show that the plaintiff ought not to recover full damages. ■Strong v. Strong, 6 Ala. Rep. 845; Plevin v. Henshall, 10 Bing. 24, (25 E. C. L. R. 17); McGowen v. Young, 2 S. & P. 160,170, 171; Baldwin v. Porter, 12 Conn. Rep. 473; Sedg--wick on Dam. 519. 2.

<p>1. A motion to quash an original attachment is addressed to the sound discretion of the primary court, and its discretion 'will not be controlled by mandamus from the Appellate Court.</p> <p>2. when an amendment is allowed to an original attachment by the primary court, mandamus does not lie to vacate the amendment.</p>

<p>EreoR to the Circuit Court of Talladega.</p> <p>Tried before the Hon. E. Pickens.</p>

Tried before the Hon. Turner Reavis. Shearer brought an action of assumpsit against Tiller, in the Circuit Court of Sumter, on a note dated 20th October, 1848, payable to ¥m. Brown or order, on the 1st day of February, 1849. This note was made, on the day it bears date, in the State of Tennessee, and was subscribed by A. G. Lof-tin and Eldridge Loftin. In June after the maturity of the note, Brown came to Livingston, in Sumter County, where the Loftins resided, to collect it.

Tried before tbe Hon. Alex. McKinstry. Pitman Sanders filed bis libel in tbe City Court of Mobile, against tbe steamboat Arkansas, No. 5, upon wbicb a writ of seizure was issued, and tbe boat taken into possession by tbe sheriff. Wainrigbt and Twelves entered into bond, by wbicb they stipulated to pay tbe judgment tbat should be rendered on tbe libel, and tbe boat was delivered to them.

<p>1. On tlie trial of an action of assumpsit, a "bill of exceptions whs taken by the plaintiff to the rulings of the court, and the jury also rendered ayerdictin his fayor. On motion of the defendant, a new trial was granted, “ with the understanding that the same be revised, and a bill of exceptions allowed.” The plaintiff filed a transcript of the record in the Supreme Court, without suing out a writ of error, and assigned for error the bill of exceptions. It was held, That the cause should be stricken from the docket, there being no final judgment, and no writ of error.</p>

Tried before tbe Hon. John Bragg. This was an action of ejectment brought by Chastaug’s Heirs against tbe defendant in error, to recover a certain lot situated in tbe city of Mobile. Held: that a right to a reserve conferred by a treaty with the Creek tribe of Indians did not stand in need of location to perfect the right of the reservee, although the treaty provided for the locations and selections. 2 Howard, 581.

Ereor to tbe Circuit Court of Dallas. Tried before tbe Hon. E. Pickens. This was an action of debt by Harriet Harrison against Margaret Harrison and Francis A. Saunders, tbe personal representatives of Kirkland Harrison, deceased, to recover from them, as such representatives, tbe sum of fifty-five thousand dollars, upon a decree of tbe Chancery Court of Fair-field District, in tbe State of South Carolina.

Tried before the Hon. Anderson Crenshaw. The facts of the case, so far as they are necessary to an understanding of the opinion and of the errors assigned, appear in the opinion of the court. 1.

Tried before the Hon. W. W. Mason. This bill was filed by a creditor of Charles L. Eoberts, on behalf of himself and the other creditors of said Eobérts, to subject to the payment of his debts certain real and personal property which, it is alleged, was purchased by said Eoberts in his lifetime, and the real estate improved, with the individual funds of said Eoberts, and the titles taken in the name of a trustee for the use and benefit of his wife and children, who were the…

Tried before tbe Hon. George (xoldthwaite. This was an action of assumpsit, brought by Bryan against Ware and others, survivors of S. M. Haggerty & Co., for services as an agent and attorney in procuring patents for Indian lands. These services were rendered in the years 1838, ’39 and ’40, and this suit was not brought until April, 1850. The defendants relied on the statute of limitations, and the plaintiff replied a subsequent promise.

Tried before the Hon. L. Gibbons. This was an action of trover, brought by Blount against Ewing, for the conversion of a slave. It was shown that the slave ran away from the plaintiff in January, 1849, and soon afterwards was in the possession of the defendant, who sold Mm to one Yaughn. It also appeared, that the negro ran away from Yaughn in the year 1850, and was arrested and put in jail in Baldwin county, as a runaway.

Tried before the Hon. Alex. McKinstry. The defendants in error declared against the plaintiff in error as administratrix of Charles McCulloch, deceased, in indebitatus assumpsit for goods sold, and on account stated between the parties. The defendant below pleaded non assumpsit, payment, statute of limitations of three years, statute of non-claim, and the insolvency of the estate of her intestate.

Tried before the Hon. J. ~W. Lesesne. Thomas Saunders and Mary D. Moniac made a marriage contract, which, after reciting the intention of the parties to intermarry, provides: “ Each of the before named parties, to wit, Thomas Saunders and Mary D. Moniac, having and owning property, at the date of their marriage, and all that shall hereafter belong to them, by heirship, legacy, or gift, from, any relation or friend, either living or deceased, the right to convey and make…

<p>Error to the Court of Probate of Shelby.</p> <p>cited Willis v. Willis, 9 Ala. 721; Price v. Simmons, 13 ib. 749; Clay’s Digest 304, § 42; ib. 19 6, §§ 22, 23; Pamphlet Acts of 1846, page 14.</p>

Tried before the Hon. J. W. Lesesne. This was a bill filed by the widow of James Maull, deceased, against his administrator, to enjoin an action of detinue brought by the latter against her, to recover divers negro slaves which she claims as her separate property. The nature of her claim, and so much of the proof as is necessary to a proper understanding of the points decided, will be found in the opinion of the court.

Tried before the Hon. J. W. Lesesne. This bill was filed by Miguel D. Eslava, Joseph Bogerean and James Johnston, against Victor Gannard, Susannah Gan-nard, his wife, Octavia Gannard and Tuskena Garnard, (their children,) and the Merchants’ Insurance Company of Mobile.

Tried before the Hon. J. W. Lesesne. This bill was filed by Murray E. Smith against his late partners Bobert Desha and John E. Sheppard, for the purpose of correcting certain alleged errors in the settlement of the partnership accounts.

<p>Error to tbe Chancery Court of Perry.</p> <p>Tried before the Hon. W. W. Mason.</p> <p>This was a bill filed by William K. Paulding, and it alleges that he is the owner of a receipt given by the defendant Lee, as an attorney at law, to Boss, Strong & Co., for certain demands due to said firm from Goodwin & Ivey, which receipt had been sold at a bankrupt sale by the assignee as a portion of the assets of Boss, Strong & Go. It is averred, that in July, 1834, an agreement was entered into between Jno. M. Boss, Silas Ivey and Lee, by which Boss, Strong & Co. were to leave their said demands against Goodwin & Ivey in the hands of Lee, as an attorney at law, for collection, and that Goodwin & Ivey should turn over to Lee notes on solvent persons residing in the neighborhood (their solvency to be judged of by Lee) sufficient in amount to pay off and discharge the demands so left by B., S. & Co. That this agreement was carried out — the notes were left with Lee, who proceeded to collect them, and has derived therefrom money sufficient to pay the demands mentioned in his receipt, but that he has failed to pay it over, or to give any list of the claims so deposited with him, and has fraudulently combined with Ivey, to convert the fund so raised from the collaterals to their own use, withholding from B., S. & Go. all information as to what he has done with the same. That Lee pretends that he has collected nothing from the claims, that they were insolvent; whereas the complainant avers they were good, and that enough of them were collected to pay the demands of B., S. & Co.</p> <p>That said. Lee was guilty of gross negligence and fraud, in failing to commence suit against Goodwin & Ivey, and failed to sue on tbe same until tbe spring of 1836. That Ivey bad real and personal property sufficient to pay double tbe amount of said debts, wbicb property Lee aided bim in disposing of privately, and in removing to Mississippi portions of tbe personal property, with a view of defrauding R, S. & Co.</p> <p>That Goodwin & Ivey pretend to bave obtained a discharge under tbe bankrupt act of 19tb August, 1841, but tbe discharge is fraudulent, by reason of tbe wilful and fraudulent refusal on tbe part of Ivey to surrender certain articles of property wbicb are described in tbe bill. That tbe receipt of Lee to R., S. & Co., was sold by tbe assignee in bankruptcy in 1840.</p> <p>This bill was filed on tbe 18th February, 1847. Lee and Ivey are both made defendants, and tbe prayer is for a discovery, and that they may be decreed to pay what has been received or collected from tbe collaterals, and such other sum or sums as might bave been collected but for tbe fraud and negligence of tbe defendants; also, that tbe discharge of Ivey in bankruptcy be set aside and annulled.</p> <p>Lee and Ivey both answer, and deny that any such agreement as that set up in tbe bill was ever entered into, or that any notes were ever deposited by Ivey, for tbe firm of wbicb be was a member, with Lee, for tbe benefit of Ross, Strong & Co., as charged.</p> <p>Lee states, in bis answer, that be was tbe attorney at law for Goodwin & Ivey, and bad received from them, for collection, certain notes, for wbicb be bad given no receipt; that afterwards Ivey procured from bim a receipt for said notes, specifying that when collected, tbe proceeds should be paid to said Goodwin & Ivey, or to tbe payment of certain claims in Lee’s bands for collection in favor of Turner & Lewis, Ross, Strong & Co., and Mott & Thompson; that these notes were sued upon in tbe name of Ross, Strong & Co.; one hundred and seventy-seven dollars only bave been collected from them, fifty-five of wbicb be has paid to Messrs. Turner & Lewis, and has their receipt therefor; be denies all combination with Ivey to defraud R., S. & Co., and avers that be never refused to account or furnish information when called on; he insists that he has been guilty of no negligence or bad faith, but on the contrary, that he has fully discharged his duty as an attorney, both in respect to the notes left with him by Boss, Strong & Co., and those deposited by Ivey & Goodwin as above stated; he claims the benefit of the statute of limitations, and demurs generally to the complainant’s bill.</p> <p>The answer of Ivey substantially corresponds with that of Lee, respecting the notes transferred to the latter by the firm of Goodwin & Ivey; admits that he promised one of the members of the firm of B., S. & Co. to hand over to Lee notes and accounts to a large amount, for the use and benefit of B., S. & Co., Mott & Thompson, Turner & Lewis, and Jack F. Boss, but that Ivey & Goodwin never complied with this promise, and determined to make another arrangement with said effects. Said Ivey insists on the validity of his bankrupt certificate of discharge, and demurs to the bill.</p> <p>Numerous witnesses were examined, and so much of their testimony as is important to be considered may be thus stated:</p> <p>Norflett Goodwin, the late partner of Ivey, says, that said late firm was indebted to B., S. & Co. in the sum of about $2000 in 1833-4; that in the spring of 1834, the firm being in failing circumstances, it was agreed between him and Ivey that they should effect a compromise with their creditors, among whom were B., S. & Co.; that Lee was employed to aid them in this matter, and agreed to take their notes and accounts, an inventory of which was made out upon their ledger, amounting to eleven or twelve thousand dollars, many of which were good. He states there was no written agreement in regard to the compromise, and recollects no pledges of Lee, other than as an attorney at law, to collect the claims so placed in his hands so far and as fast as he could, for the benefit of the creditors. “ That the understanding between all the parties, viz: Boss, Strong & Co., Jack F. Boss, Turner & Lewis, Mott & Thompson, and John M. Mott, and the firm of Ivey & Goodwin was, that if none of the other creditors of the firm than those named should come into the arrangement, then those already named should derive the whole benefit of it; that Lee, the attorney for the firm, should take the books, papers, &c., of tbe concern, do tbe best be could with them, and get a full release from all tbe creditors above named in favor of said Ivey & Goodwinthat before tbe claims of R., S. & Co. were sent up, tbe firm of Ivey & Goodwin bad employed said Lee as tbeir attorney, and bad paid bim tbe sum of $200, but bad not delivered over to bim tbeir claims. Witness also states, tbat finding on bis return from North Carolina in 1885 that Lee bad brought suit against tbe firm of Ivey & Goodwin in favor of R., S. & Co. and others, be inquired of bim bow be, being tbe attorney of Ivey & Goodwin in tbe matter, could bring suits against them in favor of tbe creditors of said firms above named, and was informed by Lee tbat tbe suit or suits bad been brought by Ivey’s consent, and tbat it would be to tbe advantage of Ivey & Goodwin.</p> <p>John W. Mott states, tbat being informed by J. M. Ross at Ivey & Goodwin’s store tbat R., S. & Co. were leaving tbeir claims with Lee for collection, and tbat Goodwin & Ivey bad agreed to deposit claims with Lee to be collected for their benefit, be left bis claim with said Lee, taking bis receipt, with tbe understanding that it should be similarly secured; tbat be has called since on bim to learn tbe condition of tbe claim, and has uniformly been informed that nothing has been derived from tbe assets placed in bis bands.</p> <p>John Me D. Ross deposes, that in July, .1884, be, being a member of tbe firm of R., S. & Co., placed the demands of said firm against Ivey & Goodwin, amounting to $2000, in tbe bands of O. W. Lee, for collection, as an attorney at law; tbat Lee informed bim be bad received from I. & G. claims on different individuals, sufficient to secure tbe amount of tbeir indebtedness to R., S. & Co.; that Ivey & Goodwin made an assignment, and applied to tbeir creditors, of whom R., S. & Co. were among tbe number, and proposed tbe conditions of tbe assignment should be acceded to on or before tbe 28th or 29th July, 1884; tbat on tbe 19th of said month, witness proposed to Ivey & Goodwin tbat be would leave bis ■claims with said Lee, to whom they promised, if tbe creditors should not perfect the assignment by consenting to it by tbe 29th July, 1834, they (I. & G.) would place in tbe bands of said Lee good and solvent notes in said county, and known to said Lee to be good, sufficient to pay tbe indebtedness of I. & G. to Ross, Strong & Co.; tbat be afterwards called upon Lee to pay tbe amount collected, but was informed by him he had not collected enough to pay the cost.</p> <p>Thomas Strong says, his understanding was, that all the claims placed by I. & G. in Lee’s hands, were for the benefit of R. S. & Co. and Jack F. Ross; that he called on said Lee in the summer of 1838, for settlement, but was answered by him that Ivey & Goodwin had made collections of all the good debts, and he had nothing left for R. S. & Co.; that he frequently wrote him on the subject, but received no answers.</p> <p>Clinton Ford proves, that he was the book keeper of Jack F. Ross; that in 1833, Goodwin & Ivey were indebted to said Ross in the sum of six thousand dollars, which, so far as the books of said firm disclosed, remains unpaid. He exhibits a letter written by the defendant Lee to J. F. Ross, dated 24th March, 1835, asking for advice, whether he should accept security of I. & G., in discharge of their indebtedness, to the amount of twenty-five hundred dollars, or whether he should refuse this, and contend for the full amount of the claims, the collection of which depended, in his opinion, upon the contingency, as to whether Goodwin did not remove his property from the State; stating also, that he was unable to say what amount would be finally realized, upon the notes Goodwin & Ivey had delivered to him; that many of them were valueless.</p> <p>This witness also exhibits a letter from Ivey to J. F. Ross, dated on the same day with that from Lee, stating that Goodwin had pocketed the funds which should have gone to the payment of the debts; that Lee was pressing the claims against the firm, in order to subject certain slaves in Goodwin’s possession, to their payment; that the proceeds of these, with what he can collect from the notes left with him, will render the creditors of the firm tolerable secure.</p> <p>The depositions of Ivey and Brown fully sustain the answers ; that of Ivey is attacked by several witnesses, who prove his general character, such as to render him unworthy of credit, while on the other hand, a larger number prove Lim to be a man of good reputation for truth and veracity.</p> <p>The record contains much proof, showing payments made to Lee on certain notes placed in his hands by Ivey & Goodwin, and some of them sued on in the name of Ross, Strong & Co.</p> <p>It appears also, that the receipt given by Lee to Ross, Strong & Co., embraced claims amounting to seventeen hundred and sixty-six dollars, and was purchased at the bankrupt sale, by one Livingston, and by him transferred, without recourse, to the complainant, on the 16th May, 1845.</p> <p>The complainant also read the answer of the defendant Lee, made to a previous bill, in which he admits the receipt of certain claims for the sole benefit of Ross, Strong & Co.; but this is noticed in the present answer, and stated to be a mistake, which subsequent investigation, and a conference with Ivey, to whom a receipt was given for the claims, enables the defendant Lee to set right.</p> <p>The Chancellor, upon a full hearing on bill, answerSj exhibits and proof, dismissed the bill, and his decree is here assigned for error.</p> <p>I.Ivey was an incompetent witness for his co-defendant, because,</p> <p>1. He was a party to the suit, directly interested in the event of it, and at least liable for the cost. Allison v. Allison, 7 Dana, 90; Holman v. Bank of Norfolk, 12 Ala. 870.</p> <p>2. He is charged in the bill as a particeps frauclis, colluding with his co-defendant to complainant’s injury, &c. Whipple v. Lansing, 3 John. Ch. 612 ; Pope v. Andrews, IS. & M. Ch. 135; Eckford v. DeKay, 6 Paige, 565; Chambers v. Chalmers, 4 Gill & J. 420; Breedlove v. Stump, 3 Yerger, 257; Ormsby v. Bakewell, 7 Ham. 98.</p> <p>3. Whether liable or not, he made an active defence, resisting complainant’s claim, demurring to bill, examining-witnesses and actively mixing in the litigation. And this alone would make him incompetent, even if he had disclaimed. Holman v. Bank of Norfolk, 12 Ala. 370.</p> <p>II. The bill is not multifarious. It is single as to the subject matter and relief sought, and the defendants are directly connected with the subject matter, the one deriving from the other, and both colluding together in regard to it. Planters’ and Merchants’ Bank v. Walker, 7 Ala. 926; Watson v. Cox, 1' IrecL Cb. 889; Parish v. Sloan, 3 ib. 607; Yaun v. Harzch, 2 Dev. & Batt. Oh. 31; Wheeler v. Clinton Oo. Bank, Harr. Oh. 449. Multifariousness is confined to cases where the case of each defendant is entirely distinct and separate in its subject matter from that of his co-defendants. Kennedy v. Kennedy, 2 Ala. 571; Pleasants v. Glasscock, 1 S. & M. Oh. 17 ; Wright v. Shelton, ib. 399. The court in this case can go on, and do complete justice between the parties before it, and without injury to the rights of any other persons. There is no proof sustaining the statement in the answer, that other persons have any interest in this controversy. Indeed, such statement is indefinite, and therefore it was not necessary to make them parties. Batre v. Auze, 5 Ala. 173. If Mott & Thompson, and others named in the answer, were proper parties, the failure to make them parties was no ground for dismissing the bill, unless upon being required to amend the complainant refuses to do so. Singleton v. Gayle, 8 Por. 270; Toulmin v. Hamilton, 7 Ala. 362; Hunt v. Wickliffe, 2 Por. 201; Thompson v. Olaj'-, 1 J. J. Marsh. 413; Cooper v. Gunn, 4 B. Mon. 594. They were not proper parties. Dias v. Bonchaud, 10 Paige, 445; 2 Story Eq.</p> <p>III. Chancery has jurisdiction in this case on the following grounds :</p> <p>1. It is a trust, which the Court of Chancery will enforce. 2 Story Eq. p. 405, § 1041.</p> <p>2. For account and discovery. 1 Story Eq. § 458.</p> <p>8. Agencj'-. Pendleton v. Wamburzie, 4 Cranch, 73 ; Post v. Kimberly, 9 John. 470-493; Mackenzie v. Johnston, 4 Madd. 374. Nor is it a bar to a bill in equity to enforce a trust, that an action at law for money had and received can be maintained. New York In. Co. v. Bonlet, 24 Wend. 505; 23 Pick. 148, 153.</p> <p>IY. And the suit was properly brought in the name of the complainants; for a court of equity recognizes an assignment of a chose in action, and will enforce it in favor of the assig-nee. 2 Story Eq. § 1040, and same p. 392; ib. § 1057, and p. 424, § 1057, a. The complainant was not a volunteer, but a bona fide purchaser, for a valuable consideration ; not of a mere right to bring a suit, but an actual chose in action, the evidence of which was in the possession of his assignor, and was delivered to him. See references above. A thing in trust is a matter of alienation. 2 Story Eq. 974, a.</p> <p>V. The limitation of two years, in the bankrupt act, is no bar to this suit; because,</p> <p>1. By the terms of the act the limitation extends only to suits, “by or against such assignee, (the assignee in bankruptcy,) or by or against any person claiming an adverse interest, touching the property or rights of property, &c.” 5 Stat. at Large, pp. 446-7, § 8. In this case, neither the assignee in bankruptcy, nor any one claiming an adverse interest, is suing. Hence, by the terms of the act, the limitation does not apply. Ex parte Christy, 8 How. 292, 311, 313. And that such is the proper construction is manifest from the tenth section of the act; and the court will not extend the terms of the act by implication or construction.</p> <p>2. The repeal of the bankrupt act, (3d January, 1843,) was a repeal of this limitation of two years, and left the prescription where it was by the laws of the State. There was no saving in the repealing act of this two years, or of any provision in said act, except so far as to proceedings which were pending in said District Courts. The case then, as to limitation, falls within the rule laid down in Henry and Wife v. Thorpe, 14 Ala. 103; Nichols v. Haskins, 16 Ala. 619 ; Cox v. Davis, 17 Ala. 714; Piatt v. Yattier, 1 McLean, 146.</p> <p>YI. The statute of limitations of six years is not a bar to this suit; because,</p> <p>1. It is not sufficiently pleaded or relied on in the answer. The plea is, that as to the negligence charged, it took place more than six years before suit brought, and he “ insists on the benefit thereof.” The plea is no defence as to the money collected and withheld, or converted to his own use, which is the gravamen of the charge, but only to the negligence in not making the debt out of Ivey, which was but an incident of the abuse of the trust confided to him. Now, the rule is, “ that every plea must rest the defence upon a single point creating of itself a bar to -the suit.” Groodrick v. Pendleton, 3 John. Ch. 384; Allen v. Randolph, 4 ib. 693; Meeker v. Marsh, Saxton, 198; Story Eq. PI. p. 317, § 661.</p> <p>2. If the statute applied and was well pleaded, it would not commence running until a demand and refusal. Lever v. Lever, 1 Hill Ch. 62-67; McBroom v. Tbe Governor, 6 Bor. 82; Kidd v. King, 5 Ala. 84. Lee denies in bis answer that any demand was made on bim prior to the first suit; and in bis answer to that suit be expressed bis willingness to account, or arbitrate the matter. And in case of an agency or trust for tbe collection of money, the right to sue does not exist, and of course tbe statute of limitations does not commence running, until tbe money has been collected by tbe agent or trustee. Scott v. Osborne, 2 Munf. 413, 420. Lee states in' his answer that be collected one claim in 1842, and no where states when be made any other collections. Tbe acknowledgment of tbe liability in tbe answers of Lee, defeated tbe operation of tbe statute of limitations. 20 John. 576, 586.</p> <p>3. Because Lee concealed bis acts, and failed to give information. This was fraud, and a party cannot avail himself, in bar of claims prosecuted against bim, of a lapse of time brought about by bis own improper conduct. 2 Story Eq. § 1421, and n. 2, 3; Richardson v. Jones, 3 Gill & J. 153, 188 ; 1 Story Eq. §§ 207, 210, 219.</p> <p>4. Because it is a case of direct, express trust, continuing and unexecuted, wbicb is within tbe exclusive jurisdiction of tbe Court of Chancery, and such a trust is not within tbe statute of limitation. 2 Story Eq. §§ 962, 954; Proost v. Gratz, 6 Whea. 481, 487; Cook v. Williams, 1 Green. Cb. 209; Redwood v. Reddick, 4 Munf. 222; Kane v. Bloodgood, 7 John. Cb. 90; McNair v. Ragland, 1 Dev. Cb. 533: 2 Story Eq. §§ 1039, 1040, 1041. At least, until tbe trustee has openly refused to execute tbe trust and denied tbe title of tbe cestui que trust, or practiced a fraud which has been discovered, and then tbe statute will commence running only from tbe discovery or knowledge by tbe cestui que trust of such refusal, denial or fraud. Talbot v. Todd, 5 Dana, 190, and cases above cited; and as a bailment, tbe statute does not apply. Collier v. Poe, 1 Dev. Eq. 55; Story on Bailments, § 2; Pin-kerston v. Brewster, 14 Ala. 315. This is not a case of concurrent remedies at law and in equity. There is no remedy at law. A discovery is necessary, also an account; it is a case of fraud, and a case of trust. If Lee has collected more than enough to pay one debt, the surplus belongs to Ivey. A court of law could not adjudicate the rights of the parties. 2 Story Eq. p. 294, §§ 962, 964. A trust may be creatéd and proved by parol, whether express or resulting, except as to real estate, which is within the statute of frauds. Lord v. Lowry, 1 Bail. Ch. 510; Martin v. Greer, 1 Geo. Dec. 109 ; 14 Maine, 281; 5 John. Oh. 1. Ivey’s discharge as a bankrupt is no bar to the suit against him, for the decree of discharge is void, the court having no jurisdiction.</p> <p>I.The complainant’s bill should have been dismissed:</p> <p>1. Because it seeks relief as to two separate and distinct matters, against different persons, and prays for two separate and distinct decrees. In such a case, the court, of its own motion, will dismiss the bill. See 1 Story’s E. P. § 281, note 1; Greenwood v. Churchhill, 1 Mylne & Keene, 546 ; 7 E. C. Eep. 168.</p> <p>2. Because there was a remedy at law, if he had a remedy anywhere.</p> <p>3. Because the bill shows that complainant has purchased a mere right to bring a suit in equity, for an alleged fraud; which is against public policy, and will not be encouraged by a court of chancery. 2 Story’s Equity Jurisprudence, § 1040, G.</p> <p>4. Because the bill shows, that no suit was instituted on the receipt, until after the lapse of more than two years from the decree in bankruptcy. See Bankrupt Act, § 8,10 ; Com-yges v. McCord, 11 Ala. Rep. 934; 13 ib. 388 ; 17 ib. 372 ; 18 ib. 250.</p> <p>5. It was the duty of the assignee in bankruptcy to sue upon the receipt. Bankrupt Act, § 10.</p> <p>II. The answer and evidence show a state of facts, that would prevent the complainant from proceeding without making Mott & Thompson, Turner & Davis, and Jack P. Ross, parties to the bill. The chancellor, in deciding the case, must pass upon the rights of these parties. This he could not do, unless they are properly before the court. Story’s E. Jurisprudence, § 1526; Story’s E. Pleading, §§ 72-73-74-75-76.</p> <p>III. The court will not entertain this bill, because of the staleness of tbe claim. 2 Story’s Eq. Jurisprudence, § 1520, and notes; 9 Peters’ 417; 1 Howard, 167-168; ib. 192-8 ; 3 Brown’s Cb. Bep. 640.</p> <p>IY. Tbe bill charges an express and direct trust. Tbe proof shows that there was no trust. Tbe law never implies a trust, nor will tbe court presume one. Hill on Trustees, 144, note.</p> <p>Y. If there be a trust in this case, it must have been created by parol declarations; and to create a trust by parol declarations, tbe words must amount to a clear and explicit trust, and must point out tbe beneficiaries with certainty. Ib. 59.</p> <p>YI. A trustee is one to whom tbe legal title to property is conveyed, for tbe use and benefit of others. 4 Kent, 305 ; Hill on Trustees. .</p> <p>YII. Tbe proof shows, that tbe claims were placed in Lee’s bands, as an attorney, and in no other capacity.</p> <p>YIII. Tbe defendant having denied all tbe material allegations in tbe bill, and tbe complainant having failed to sustain a single allegation, by even one witness, tbe chancellor was compelled to dismiss tbe bill; and more especially, when all tbe material matters in tbe answer are sustained by two witnesses.</p> <p>IX. The small discrepancies in tbe answer of tbe defendant Lee may be readily accounted for, if we consider tbe great lapse of time which intervenes between tbe transaction and tbe date of tbe answer; and tbe further fact, that be kept no books; that many of tbe claims were small, many insolvent; and that be was attorney for Jack P. Ross, Ross, Strong, & Co., Turner & Lewis and Mott & Thompson, as shown by tbe proof.</p> <p>X. Tbe complainant is a mere speculator in bankrupt claims, and is not entitled to tbe tender consideration of the Court of Chancery, to enforce a pretended claim, which others were too conscientious to prosecute. 2 Story’s Eq. Jur. § 440, note 5.</p>

It appears, by a recital in the record, that the estate of Macon had been declared insolvent, and within the time prescribed in the statute McNeil filed a claim in the clerk’s office, verified by his own affidavit. This claim consisted of a title bond made by Macon to McNeil for a half section of land, which is described in it.

<p>Error to the Circuit Court of Tallapoosa.</p> <p>Tried before tbe Hon. J. J. Woodward.</p> <p>Tbe defendant in error filed bis petition in tbe Orphans’ Court of Tallapoosa County, setting forth, that John Loveless died in said county, after first having made and published bis last will and testament, by wbicb be devised certain lands to bis wife for life, and to bis children in fee at her death, to be equally divided among them; that there were ten children entitled to take under tbe will, among whom are John and Daniel Loveless, (tbe names of tbe others are also set forth in tbe petition;) that Joseph C. Rawles, then sheriff of Tallapoosa county, after the death of the widow, became administrator with the will annexed of the elder John Loveless, and as such filed his petition in the Orphan’s Court, setting forth that the lands devised could not be fairly, equally, and beneficially divided among the parties in interest, without making sale of them; that an order was accordingly granted, and a sale made in pursuance thereof. At this sale the lands brought $300.</p> <p>The petition further alleged, that before Rawles, the administrator with the will annexed of John Loveless, filed his petition for the sale of the lands, and after the death of the widow of the testator, one John 0. Holeman had obtained a judgment in the Circuit Court of Tallapoosa county, (in which the lands are situated,) against John and Daniel Loveless, two of the devisees under the will, upon which an execution issued to the coroner of Tallapoosa, which was levied upon the undivided interest which the defendants in that judgment had in the lands devised, which was sold, and the defendant in error became the purchaser; that the coroner made him a deed for the undivided interest of said John and Daniel, which was duly recorded. The petition further-sets out, that after the purchase of the petitioner, and before the sale by the administrator with the will annexed, said administrator had received $111 for rent of the premises; that upon the expiration of his term office as sheriff, Rawles relinquished his administration, and paid over to the plaintiffs in error, who became administrators de bonis non with the will annexed, the purchase money and rents aforesaid, and that they yet have them in their hands; that the estate was not finally settled when the petition was filed, but more than eighteen months had elapsed since the grant of letters of administration.</p> <p>He prays that the administrators de bonis non be compelled, by decree of the Court, to pay to him the portions to which John and Daniel Loveless would have been entitled under the will of John Loveless.</p> <p>On this petition citations issued to the plaintiffs in error, who appeared, and filed reasons why the prayer of the petition should not be granted. They are numerous and prolix, but may be resolved into two, to-wit: 1st. That the petitioner bad no sucb interest in tbe estate of tbe testator as would entitle bim be beard in tbe Orphans’ Court; and, 2d, That be took no title to tbe premises devised bj bis purchase at tbe coroner’s sale.</p> <p>Tbe principal facts stated in tbe petition were admitted in tbe Orphans’Court, and, without any bill of exceptions, were spread on tbe record at the request of the petitioner. Tbe Orphans’ Court dismissed tbe petition.</p> <p>Tbe.case was taken to tbe Circuit Court by certiorari, where tbe judgment of tbe Orphans’ Court was reversed, and on tbe record sent up, the Circuit Court rendered judgment in favor of tbe petitioner, without requiring, tbe execution of a refunding bond.</p> <p>Erom this judgment of tbe Circuit Court, a writ of error was sued out by tbe administrators with tbe will annexed, and tbe case brought here for revision.</p> <p>Tbe judgment of tbe Circuit Court is here assigned for error.</p> <p>1. Daniel and John Loveless bad no sucb interest in tbe land as was tbe subject of levy and sale under execution at law, and, therefore, Isaac P. Hall acquired no right by bis purchase from tbe coroner of Tallapoosa.</p> <p>2. Tbe estate of Jno. Loveless was yet in tbe course of administration; tbe land was subject to be sold by tbe administrator to pay tbe debts of John Loveless; tbe administrator did sell, as is shown by tbe record.</p> <p>3. If Hall acquired any title, it was legal; it will not be pretended.be could have acquired any other. If legal, Hall bad a right to enter into possession; if be bad that right, ejectment was bis remedy; if bis title was not sufficient to support that action, it is good for no purpose whatever.</p> <p>4. While tbe land was in tbe bands of tbe administrators it was trust estate, tbe administrator having a paramount right till tbe close of tbe estate, or it was found that it was not needed to pay debts.</p> <p>5. Tbe Orphans’ Court is one of limited powers; has no other than is given by statute. Tbe power here sought to be exercised was never conferred, or intended to be conferred, on tbe Orphans’ Court,</p> <p>6. It will not be pretended tbat tbe power of tbe Orphans’ Court is concurrent witb tbe Court of Chancery in such cases. It is denied tbat either court could have given tbe remedy sought. If, however, tbe judgment creditor, whose judgment Hall claims through or under, had seen fit, at a proper time, and under proper circumstances, to have gone into equity, he could have done so, and subjected the interests of Daniel and John T. Loveless.</p> <p>7. The Orphans’ Court has no power to substitute a stranger for an heir, or a distributee of an estate by process of law, without the consent of the heir, and allow such stranger such rights as to allow him to come forward and petition for distribution in,a part or whole of the estate. Such a proceeding has never before been entertained, and is without the slightest foundation in law.</p> <p>8. Nothing but the legal title to real estate can be sold under execution. Olay’s Dig. p. 350, § 31. The legal title to an estate is in the personal representative until distribution, and consequently, is not subject to levy and sale under an execution against the heir. 10 A. E, 630. So far as the heir is concerned, the intestate’s equitable or legal title to land is the same, and passes in the same way. 2 A. E. 712. As to the title of the personal representative to the real estate, see 10 A. E. 60, and 10 A. E. 393, and cases cited on plaintiff’s brief in that case. By the construction of the Orphans’ Court, it has no power to try questions of title to real estate; and to allow such a proceeding as this in the Orphans’ or Probate Court, would involve that court, as well as heirs and distributees of estates, in endless difficulties.</p> <p>1. The title to real estate descends to the heir upon the death of the intestate ancestor, and not to the personal representative, and the administrator has nothing to do with it, and has no right to meddle with the same, unless for a division among the heirs under the statute or to pay debts. 2 A. E. 663; ib. 717; 12 A. E. 533; 15 A. E. 228 and 12 A. E. 391.'</p> <p>2. And the heir has such an interest in the land so descended, from his ancestor, as may be taken for his debts under an an execution against bim before distribution, or any action in the Probate Court; and tbe purchaser at the execution sale takes the title of the heir, subject to all the legal demands for the debts of the ancestor, while the title remained in the hands of the heir, that could have been enforced upon the land before the execution sale; in other words, the purchaser takes by his purchase, only such title as the heir had, and is substituted for the heir; and the land is liable to such proceeding, after the sale, as it would have been if no sale under the execution had taken place; the purchaser standing in the same condition as to distribution and sale to pay debts under the statute, as the heir did before the sale, he being by his purchase only an assignee of the heir; and the title of the purchaser and the other heirs may be divested, on the proper application of the administrator in the cases allowed by the statute, to pay debts or for distribution among the heirs; but in that case the purchaser is substituted for the heir whose interest has been sold, as in this case, and is thrown before the Orphans’ Court to assert his interest for the proportional part of the amount of the sale made by the administrator, and he is entitled to the amount the heir would have got upon distribution. Mattock v. Sterne, 9 Ver. R 826; Proctor 'v. Newhall, 17 Mass. R 81; Griswold v. Penniman, et al., 2 Conn. R 564; 16 Ohio 271; 12 A. R 891; 17 A. R 20.</p> <p>8. Orphans’ Court has, in the administration and settling up estates, equity jurisdiction, and an assignee may assert his interest in his own name, and it can make no difference that the assignee claims as a purchaser at an execution sale. When any one petitions the Probate Court for distribution, it is the duty of the administrator to bring those interested in the distribution before the court. Graham et al. v. Aber-crombie et al., 8 A. R 552. When the facts are all proven in the court below, the reversing court will render proper judgment upon the reversal, and not remand.</p>

Tried before the Hon. Thomas A. Walker. This was an action of debt instituted in tbe name of tbe Governor, for tbe use of Morgan county, against Tbomas R. Williams and bis securities, on bis official bond as county treasurer. The suit was brought to recover the amount of tbe county taxes for tbe year 1845, wbicb, it was alleged, tbe defendant bad not paid over; and another suit was also instituted for tbe taxes of 1846, wbicb was pending at tbe time of tbe trial of this.

Tried before tbe Hon. E. Pickens. This was an action of assumpsit brought by Dearing against Hutchinson, to recover for tbe services of certain slaves.

<p>1. In an action of debt on a claim bond, where theíplea of non est factum is interposed, the sheriff is an incompetent witness for the plaintiff, without a release, to prove the execution of the hond.</p> <p>2. A return of “forfeiture” is not necessary to the maintenance of a common law action of debt upon a claim bond.</p> <p>3. If the obligor in the bond is absent from the county, a demand of the property from his general agent is sufficient.</p>

Tried before tbe Hon. L. Gibbous. Tbe plaintiff brought an action of assumpsit in tbe Circuit Court of tbe county of Mobile against tbe defendant, and filed bis declaration containing five counts. Tbe first count avers, that plaintiff rented to defendant a saw and grist mill for tbe year 1845, for which defendant agreed to pay him 150,000 feet of assorted lumber, to be delivered in tbe city of Mobile; which be failed to deliver, to plaintiff’s damage $1000.

Ekrob to tbe Chancery Court of Lowndes. Tried before tbe Hon. J. W. Lesesne. Tbis bill was filed by Gayle & Bower, et al. against tbe plaintiffs in error, as executors de son tort of Jeremiab Watts, deceased, wbo was one of tbe securities of Margaret West, on ber bond, as executrix of Henry West, deceased.

<p>Ereos, to the Circuit Court of Mobile.</p> <p>Tried before the Hon. John Bragg.</p> <p>This was an action of assumpsit, brought by Lougbridge against Thompson, for services performed as a pilot on board a steamboat of which the defendant was one of the owners.</p> <p>The declaration sets out a special contract to act as pilot on board the steamboat “8th January,” for the boating season, to-wit: from 1st November, 1848, to 1st May, 1849, for $1200. A count on a quantum meruit and other common counts are added for services as pilot on the “ 8th of January.”</p> <p>The pleas are, first, the general issue, and second, payment.</p> <p>The plaintiff introduced evidence tending to support his declaration. The bill of exceptions then proceeds in these words; “ Defendant introduced G-. W. Cloudis, who proved that while he was at New Albany, Indiana, in the summer of 1849, (this is a manifest mistake for 1848,) he wrote a letter by instructions from the defendant, then with him, to Campbell, Owen & Co. of Mobile, requesting them to employ the plaintiff to run as pilot on the steamer “ 8th of January,” or the “Aberdeen,” as his services might be required on either by the owners, the same persons being owners of both boats; that witness had no interest in said boats, or either of them; that after witness returned to Mobile, and immediately after tbe 118th of January1'1 was laid up, witness, wbo was captain of tbe “Aberdeen," went to plaintiff, and required bim to go on board tbe Aberdeen, and finish bis season as pilot. IJpon this demand being made, tbe plaintiff acceded to it, and promised to finish bis season as pilot on tbe Aberdeen; that when tbe Aberdeen bad received her freight, and was ready to start up tbe river, tbe plaintiff refused to go, alleging that be bad tbe cholera; that plaintiff was then drunk, and that witness, in consequence thereof, was compelled to employ another pilot; that on tbe succeeding trip of tbe Aberdeen, plaintiff was drunk, and unable, from intoxication, to go on board and act as pilot, and never rendered at any time during tbe season, any services as pilot on board of said boat.”</p> <p>There was proof that $224 bad been paid to plaintiff for bis services on tbe 8th of January up to tbe 5th January, 1849, at which time tbe said last mentioned boat was laid up for tbe season, and tbe bands discharged; also proof that plaintiff acknowledged himself indebted to defendant $30 for iron.</p> <p>To tbe admission of all tbe testimony contained in tbe foregoing abstract from tbe bill of exceptions, “ in regard to plaintiff’s agreement to serve on tbe Aberdeen after be bad been discharged from tbe 8th of January, plaintiff excepts as irrelevant.”</p> <p>Tbe court charged tbe jury:</p> <p>1. That it would be their duty to ascertain what was tbe true contract between tbe parties. If tbe contract was an entire one, to serve on a particular boat, then in tbe event of its being first broken by tbe captain or owners of tbe boat, tbe plaintiff would be absolved from performing bis part of it, and would be entitled to recover tbe whole amount agreed to be paid for tbe season.</p> <p>2. That if tbe jury should be of opinion that plaintiff’s contract was confined to a particular boat, and be bad been prevented from complying with it, bis subsequent promise to serve on tbe Aberdeen would not be binding on bim, without some new consideration.</p> <p>Tbe admission of tbe testimony aforesaid, and the charges of tbe court, are assigned for error.</p> <p>The testimony of said witness in relation to tbe services upon tbe Aberdeen, was irrelevant, and not admissible under tbe general issue; because, nothing shall be given in evidence which does not directly tend to the proof or the disproof of the matters in issue. State v. Wisdom, 8 P. 511; Grreenl. on Ev. p. 58 §§ 51-2,</p> <p>When the defence in any way admits the plaintiff’s cause of action, and seeks to avoid it by matter aliunde, the matter of defence must be raised by plea. 3 McCord, 317; see Brewer v. Strong’s Ex’rs, 10 Ala. Bep. 966; Saunders’ PI. and Ev. 137, and cases there cited.</p> <p>Even if the evidence in this case was admissible under the general issue, still it did not amount to an alteration of the former contract, or a release of the defendant, and a discharge of his liability. It was nothing more than an agreement on the plaintiff’s part, subsequently to his discharge, to run the balance of the season on another boat. Such an agreement cannot be construed into a release of the existing liability, or a substitution of a new contract for the old one.</p> <p>The error complained of is, that the court permitted this evidence to go to the jury, under the instruction that it rested with them to say what the contract was. The jury may well have thought that the evidence of the captain of the Aberdeen was properly before them, for the purpose of showing what the original contract was.</p> <p>A party shall not be permitted to offer evidence irrelevant to the issue, or incompetent, when excepted to, for there is great danger that it may bias the jury; and this result may happen, even though the court should afterwards, in its charge, tell the jury not to consider it.</p> <p>There is no error in the record to authorize a reversal. The defence made below was perfectly legitimate,, under the issues joined. Considering the form of the declaration, the plea of the general issue enabled the defendant to show that the contract sued on was an entire contract. 1 Saunders on PI. and Ev. pp. 152-3.</p> <p>An agreement to serve a specified time is an entire contract ; and if the party leaves before the termination of the time, be cannot recover. 1 Stew. 29; 12 Johnson, 165; 3 Ala. 440-676; 13 Johnson, 53. The case in 12 Johnson shows, that the plea of the general issue is sufficient to allow the proof upon which the defence rested in this case, to come in. We might admit that the testimony of Gr. W. Cloudis, as to the contents of the letter, was not strictly admissible, without at all weakening the case of the defendant in error; for the reason that it could not have misled the jury, inasmuch as the same witness proved the acts and declarations of the plaintiff in error, which clearly proves that he considered that he had been engaged for a specified time; thus bringing the case under the rule laid down in the cases cited above from the decisions of this court.</p> <p>That this court will not reverse a case for an immaterial error, or one which does not work a prejudice to the party, has been repeatedly adjudged. The plaintiff in error cannot with reason complain of the charges of the court below, because they could scarcely have been put in terms more favorable to him.</p>