Volume 21 — Alabama Reports

<p>ÍÍRROR to the Circuit Court of St. Clair.</p> <p>'Pried before the Tíou. John I). Phelan.</p> <p>This was an actiou of Tkhspass, brought by Sally Ladiga, a Creek Indian, against Richard D. Rowland and Peter Heif-ner, to try titles to the cast half of section two, in township fourteen, range eight east, of the Coosa Land district. The suit was commenced in the Circuit Court of Benton county: and a trial was there had, at Rio April term, 1846, which resulted in a verdict for the defendants: but a new trial was granted, and tbe venue was changed to tbe county of St. Clair, on the condition that the plaintiff paid all the costs that had accrued, by the first day of August then next following.</p> <p>At the May Term of the Circuit Court of Benton, an entry was made upon the record, showing that the clerk had failed to transmit the papers, as he had been directed, to the Circuit Court of St. Clair; and the order for the change of venue was renewed, and the clerk directed to transmit- all the papers .and orders in the cause. At the September Term, 1847, tbe plaintiff moved tbe Circuit Court of St. Clair, to have the ■cause entered upon the docket of that court, as one there pending, and produced the papers and orders showing the change of venire. The defendants resisted this motion, on the ground that the cause had been finally disposed of by the Circuit Court of Benton; but the court granted the motion, and the defendants excepted.</p> <p>At the March Term, 1849, the death of the plaintiff, Sally Ladiga, was suggested, and the present defendants in error moved the court to revive the suit in' their names as her heirs at law; and in support of the motion, they offered in evidence the deposition of one Frye, and also proved the common reputation among the Indians that they were the children and grand-children of said Sally Ladiga.. The defendants objected, that the evidence was insufficient to establish their heirship; but the court, deeming it sufficient, granted the motion, and ordered the suit to be revived in the names of the present defendants in error as plaintiffs, and informed the defendants that they might contest the heirship of the plaintiffs, either by special plea in bar, or under the general issue-before the jury.</p> <p>A trial was then had, upon the plea of “not guilty,” pleaded separately by each defendant, and a verdict of “ guilty” was rendered against them, and five dollars damages assessed against each; and it was further found by the verdict, that the defendant Rowland was in possession of the north east quarter of said half section of land, and the defendant Heifner in possession of the south east quarter. The plaintiffs remitted' the damages assessed by the jury, and the court rendered judgment in their favor, that they recover of said defendants the land in their declaration mentioned, and the costs of suit.</p> <p>During the trial a bill of exceptions was taken, which shows, that Sally Ladiga was a Creek Indian, and had been enrolled as one of that tribe by the agent of the General Government, under the treaty of March 24, 18S2; that she resided on the land in controversy, both before and after that treaty, and had a cabin upon it, and also a field; that she had no husband living at the date of the treaty, but that she had raised a family of children, all of whom had married and settled off to themselves; that the only persons who resided with her -were, an Indian woman named Letter and ber child, and also a boy named Ar-cbee-cbee; that Sally claimed tbis boy as ber grand-son, and there was proof tending to show that be was such, and that bis parents were dead. Tbe proof also tended to show, that Ar-cbee-cbee resided with Sally, both before and after tbe treaty; bnt there was a conflict in tbe evidence, as to whether be was related to ber or not. Tbe Indian woman Letter was not related to Sally, but lived with ber, and cultivated ber field for ber; and it further appeared, that Letter bad been located under tbe treaty as “tbe bead of a family,” upon a half section of land.</p> <p>The testimony also showed, that Sally Ladiga applied to tbe locating agents of tbe Government, and claimed to be located as “tbe bead of a family,” on tbe ball section of land in controversy; but ber application was refused, on tbe ground that she was not “tbe bead of a family.” Her first application was made to M. M. Houston, a locating agent, who testified in tbis cause, that be determined upon evidence satisfactory to him that she was not entitled to a half section of land, as tbe bead of a family under tbe treaty. After failing in ber application to Houston, she applied to other locating agents, all of whom rejected ber claim. She continued, however, to reside upon the land, until 1833 or 1884, when, in consequence of some difficulty that arose between ber and one Smith, who, it appears, entered upon tbe land, and opened a field including ber cabin and field, she left tbe place, and went to reside with a relative. Some time, however, in 1838, she was found by a soldier of tbe United States army, occupying a shelter upon or near tbe land, and was carried by him to an emigrating company about to start west;, and then at Boss’ Landing; and in tbe fall of that year, she did start with said company to Arkansas, but never reached tbe west bank of tbe Mississippi river.</p> <p>There was also proof tending to show, that some of th; white settlers used their influence with Houston, tbe locating agent, to prevent the allowance of ber claim, by representing, and expressing their opinion, that she was not tbe bead of a family; and there was also evidence going to show that tbe boy Arcbeecbee was not relatedto ber; that on one occasion, she represented tbe Indian woman Letter to be a part of her family, although she was not related to ber, and bad herself been located on a balf section of land as tbe bead of a family; tbat sbe bad also presented to tbe agent ber children, as parts of ber family, although they were married, and settled off to themselves; and tbat tbe boy Arcbeecbee and tbe Indian woman and her child were tbe only persons living with Sally at the date of tbe treaty.</p> <p>There was also a conflict in tbe evidence, as to the manner in which Sally came to tbe camp of tbe emigrating company, some of it going to show tbat sbe joined tbe company willingly and of her own accord; this proof was introduced by tbe defendants. It was proved by one Groodwyn, a witness introduced by tbe plaintiffs, tbat in March, 1832, Sally bought some clothes from him for tbe boy Arcbeecbee, and told witness that be was the same boy witness bad seen with ber once before in tbe year 1831“ Tbe defendants objected to this testimony of Goodwyn’s; but their objection was overruled, and they excepted.</p> <p>There were also several other objections made to parts of tbe evidence introduced, which were overruled; but it is not thought necessary to state them.</p> <p>Tbe defendants introduced, as evidence of their title to tbe land, two patents from tbe President of tbe United States, which show, tbat the balf section of land in controversy bad been selected and sold, under the provisions of tbe treaty, for tbe benefit of tbe orphan children of tbe Creek tribe. Tbe patent for the north east quarter section was issued to Rowland, and tbe patent for tbe south east quarter to Heif-ner; and tbe proof showed, tbat each defendant occupied tbe quarter section which bad been granted to him.</p> <p>Upon this state of proof, the bill of exceptions recites, tbat “among other things, tbe court charged tbe jury as follows: That if each of the defendants was in possession of a different quarter soction of tbe .half section of land in controversy, and each claimed title to tbe quarter section in bis possession, and there was no connection between tbe possession or title of tbe two defendants; and if they find tbat Sally Ladiga was entitled to the land, as a reservation under tbe Creek treaty of 1882, they must return a verdict for tbe possession of each quarter section separately, against tbe defendant in possession of tbe same.”</p> <p>The defendants asked the court to charge the jury:</p> <p>1. That if they believed from the evidence, that defendants Rowland and Heifner owned and possessed different quarters of the half section of land in controversy, and that Rowland never owned, possessed, or had any connection with the possession of the south east quarter, nor Heifner with the north cast quarter of the land sued for, they must ñnd for the defendants;</p> <p>2. That if they believed from the evidence, that defendants owned and possessed different quarters of the half section of land in controversy, and that Rowland never owned, possessed, or had any connection with the possession of the south east quarter, nor Heifner with the north east quarter, then plaintiffs arc entitled to a verdict against only one of the defendants, and that must be for the quarter section which such defendant possessed at the commencement of the suit ;</p> <p>3. That if they believed from the evidence, that Rowland and Heifner owned and possessed different quarter sections of the half section of land in controversy; that Rowland never owned, possessed, or had any connection with the possession of the south east quarter, nor Heifner with the north east quarter, then plaintiffs can have a j udgment against but one of the defendants, and that must be for the quarter section Avhich such defendant possessed at the commencement of the suit; and the plaintiffs must elect against which one they will proceed for a verdict, and if they do not make such election, then the jury must find for the defendants.”</p> <p>The court refused each one of these three charges, and the defendants excepted to each refusal.</p> <p>The court charged the jury: “ That Heifner and Rowland, as purchasers from the General Government of the United States, could not occupy a more favorable position in this controversy, than the Government itself; that if Houston and the other locating agents, officers of the General Government, refused to locate Sally Ladiga, and rejected her claim, when she applied for the location, then it would not lie in the mouth of the General Government to say, that Sally Ladiga had abandoned lier claim to a reservation under the treaty; and that consequently the defendants could not be heard to say, that she had abandoned the land.”</p> <p>Further: “That if it appeared from the evidence, that Houston rejected the claim of Sally Ladiga, after investigation, upon the ground that she was not the head of a Creek family under the treaty, although it rnay have been shown in such investigation that she had a graud-son, an orphan, living with her, in her house, at and before the date of the treaty, such rejection was entitled to no consideration against the plaintiff’s demand in this suit; hut if, on the contrary, it appeared that he rejected her claim as the head of a family because it was shown in such investigation that she had no child or grand-child living with her at the date aforesaid, then said rejection was a fact entitled to much consideration, against the plaintiffs and in favor of the defendants;” to the former part of which last charge the defendants excepted.</p> <p>The plaintiffs in error now assign sixteen errors in the record of the proceedings in the court below, embracing every thing to which exception was taken, in the change of venue, the revivor of the suit, the admission of evidence, the charges given and refused, and the rendition of final judgment. These different assignments of error will be readily understood from tbe foregoing statement of facts and the brief of tbe counsel for plaintiffs in error.</p> <p>1. In the action of ejectment or trespass to try titles, the general issue alone is to be pleaded; and under it (as under the general issue in assumpsit,) any thing may be given in evidence, which in law can defeat a recovery in favor of the plaintiff Wood v.-Jackson, 8 Wend. 9,40. Jackson v. Rowland, 6 Wend 666.</p> <p>2. It is good hi abatement or in bar, that the plaintiff was .dead at the commencement of the suit. Jcnks v. Edwards, 6 Ala. 148.</p> <p>3. It was erroneous to order the revival of the suit until it was shown affirmatively by plaintiffs that Bally Ladiga was alive at tbe commencement of the suit. And it was also erroneous to give the charges which were given; one of which, at least, asserted plaintiff’s right to recover, without referring to the jury the question, whether she was dead at the commencement of tbe suit, although it is expressly stated, in the bill of exceptions that there was a conflict on this and every other branch of the evidence.</p> <p>4. All proceedings in a suit at law are stopped by the death of the sole plaintiff. The order for the change of venue is utterly void, because it was made after the death of the sole plaintiff! Mansony et al. v. Bank, 4 Ala. Rep. 751.</p> <p>5. The order for change of venue is void for another reason, xo-wit: that the Circuit Court of Benton did not intend its final judgment rendered on verdict at its spring term, 1846, should be set aside or its force arrested unless the costs should be paid by the 1st day of August, as a condition precedent. The Circuit Court of Benton did not, by implication or otherwise, reserve control of said jndgment beyond the 1st day of August, 1846, and it could not act upon it after that time. 'Edwards v. Lewis, 18 Ala. Rep. 496; Lands v. McClellan, 6 Cowen 582; Noland v. Locke, 16 Ala. Rep. 52; Walker v. Hale, 16 Ala. Rep. 26; Stephens v. Broad-nax, 5 Ala. Rep. 258; Orothers v. Ross, 5 Ala. Rep. 800.</p> <p>6. The failure of the plaintiff to have any action whatever taken by the Benton court in the case at its fall term, 1846, was a discontinuance of the cause or abandonment or waiver of the conditional offer of the new trial; and this view is strengthened by the entry at the spring term, 1847, which does not even pretend that the clerk or the court had omitted, any duty — thus proving that the only default was the default of the plaintiff’. The Circuit Court of Benton had no power to act in the case at spring term, 1847, even under the decision of Reese v. Billing, 9 Ala. Rep., where the party complied with the offer for the new trial at the next succeeding term according to the terms of the offer and within proper time. Suppose, however, that Billing had failed to comply at the next succeeding term after the order, and had waited until the second term, (as the plaintiff' here did) it is clear the decision would have been different. The order at spring term, 1847, treats the order of spring term, 1846, as inoperative as to the change of venue, and orders a change of venne de now upon a new application therefor by plaintiff. If inoperative as to the change of venue, it could only be so by tbe default of plaintiff or her refusal to accept and comply with the conditionpre-cedent, and tbis would render that order of spring term, 1846, void and inoperative in toto — as to new trial as well as change of venue.</p> <p>7. The venue in such an action as this, is ¡occd. And the Circuit Court of St. Glair county could not have or exercise jurisdiction except by a regular and valid order for the change of venue. Clay’s Dig. 342, § 162; ib. 343, § 167; Boynton v. Foster, 7 Mete. Eep. 415. . Whenever the action of a court is void, no exception need be taken. 16 Ala. Eep. 730 ; 13 Ala. Eep. 529.</p> <p>8. In this and all other cases in which the Government acts through the medium of agents, the power exists and may be rightfully exercised, to examine and ascertain, if the prerequisites of the law have been complied with. Eosser v. Bradford, 9 Porter 358.</p> <p>9. Inasmuch as this suit, was commenced long after five years had elapsed from the date of the treaty of March, 1832, and by an Indian to whom no patent has ever issued, such Indian cannot lawfully recover without proving both the following propositions, to-wit: I. That such Indian “at the end of five years” from the treaty was “entitled” to the selection ; and II. That “ at the end of the five years," such Indian was “ desirous" of “remaining” in the country. 15 Ala. Eep. 531; 13 Ala. Eep. 801. See Edwards v. Lewis, 18 Ala. Eep. 495, as to estates to arise on a condition precedent. And even if she desired to remain in the country, still if her children and grand children had n'o such desire, but voluntarily removed from it and never have returned, they cannot recover. The condition of remaining in the country ajjplies to them as well as to her. 13 Ala. Eep. 800.</p> <p>10. The desire to recover the land, is different from the desire to remain in the country. The bringing of a suit more than six years after the treaty, is by no means conclusive proof of a desire to remain in the country; especially when the proof also shows that the suit was probably brought after thé death of the plaintiff, and has been vigorously prosecuted for at least ten years after her death in her name, through all the courts and the venue changed, before any offer to revive, and when it is shown also that within the five years after the treaty she sold the land to Gooden & Green, and that since her death slie has given security for costs in two Circuit Courts (Benton and St. Clair). If she had desired to remain in the country, that desire could have been made known or manifested very satisfactorily between the lapse of the five years from the treaty and hex removal to the west — a period of more than one year and five months. It was essential to her right that she should have made it manifest within the period elapsing between the expiration of the first five years of the treaty and her removal to the west (or the beginning of -this suit). She had no right to sue after the lapse of the first five years from the treaty, until she did manifest such desire. Yet there is not a particle of evidence of such manifestation of desire, after the lapse of five years from the treaty! And it was after the lapse of these five years, that Congress passed an act, which in part or in whole constituted the authority under which the defendants afterwards purchased and procured patents. The argument for defendant in error assumes that because Sally Ladiga was not in actual possession of the land, it was impossible for her, during seventeen months, to make known in any way her desire to remain in the country ! ! !</p> <p>11. The fact that she sold the land to Cooden & Green, as offered in evidence, was admissible (although the sale might have been void) for tlie purpose of showing that sbe bad no motive to remain in the country — no intention to remain — and also for the purpose of affecting the credit of Gooden (a witness for her). Cromelin v. Minter, 9 Ala. Bep. 601; Johnson v. The State, 17 Ala. Bep. 618.</p> <p>12. The charge of the court is erroneous, because it withdrew from the consideration of the jury the following important questions of fact, as to winch there was a conflict of evidence and the burden of proof on the plaintiffs, to-wit: E. Whether or not l:al the end of five years” from the treaty, Sally Ladiga made known her desire to remain in the country: II. Whether or not Sally Ladiga was not dead at the commencement of this suit; III. Whether or not the present plaintiffs were the heirs of Sally Ladiga. Hall v. Heirs of Wilson, 14 Ala. Bep. 295. 1Y. Whether since her death her heirs have mo/nifested a desire to remain in the country. Wells v. Thompson, Ala. Bep. 800. (The heirs were not forced out of the country.) Y. Whether Sally (although “entitled” during the five years) was entitled “at the end of five years" from tbe treaty.</p> <p>Tbe charge of tbe court is also erroneous in bolding tbe Government and tbe defendants estopped by tbe refusal of tbe locating agents to locate and tbe rejection of ber elaim “when she applied for the location,” (that is, in 1832, 1833 or 1834, and within the first five years after tbe treaty), from proving that Sally “at tbe end of tbe five years” did abandon tbe land or was not desirous of remaining in tbe country!!! Tbis was no estoppel, Inge v. Murpby, 10 Ala. Eep. 885, and it is very clear that if tbe question bad been left to tbe jur}r untrammelled by tbe supposed estoppel, they would bave found that sbe did abandon tbe land or that “ at tbe end of five years” sbe was not desirous of remaining; for tbe proof is distinct tbat sbe left tbe land without any Government force or interference, voluntarily, “in 1834, and went to Ball Play creek and never returned upon said land;" tbat sbe bad previously sold the land to Gooden & Green and given ber bond for title; tbat sbe remained in tbe country until “tbe fall of 1838,” (a period of some four years after sbe had voluntarily left tbe land,) when sbe with tbe remainder of tbe Indian tribe removed west. Sbe bad abandoned tbe land and lost all right or title or just claim to it long before hen' removal to the west with the Indian tribe — by ber conduct and omission to make known ber desire of remaining in tbe country “at the end of five years ” from the treaty or within a short time thereafter — when sbe was free from force of every description and bad full opportunity to make known such desire. Tbe error of a charge withholding any material question of fact from tbe consideration of the jury, is not cured, although tbe record contains evidence which seems to make out the fact so withheld from tbe consideration of tbe jury. The reason is, tbat neither tbe Circuit nor Supreme Court can iveigh evidence in such case. Gilliam v. Moore, 10 Smedes and Marsh, 138.</p> <p>13. Tbe phrase “head of a family" necessarily implies at least two persons, between whom there is dependancy. Allen v. Mannassee, 4 Ala. Eep. 554.</p> <p>Of course, where there are only two persons in tbe family and one of them dies tbe family relation is dissolved, and there is then no “head of a family” — '“no bead” — no “family.”</p> <p>14. Where illegal or irrelevant evidence on any point is admitted, the error of such admission is not cured, although the legal evidence on the same point seems to have been sufficient to prove the point; because the appellate court cannot tell whether the jury based their finding on the legal or illegal evidence or on both together, and also because the appellate court cannot weigh evidence. Whitman v. Bank, 8 Poter, 258; 10 Smedes and Marsh, 130-38 supra.</p> <p>15. It is the duty of the Circuit Court always to protect the jury from the admission of irrelevant or any other incompetent testimony. Mardis v. Shackelford, 4 Ala. Eep. 501.</p> <p>This duty cannot be evaded by the court or transferred to the jury, by leaving it to them to say tohal weight they will give to the irrelevant or incompetent proof. The court must primarily decide upon its “ADMISSIBILITY;” and whenever irrelevant or any other kind of incompetent evidence is admitted, it is a fatal error, wherever “ the illegal is not withdrawn, or the jury are not explicitly instructed to disregard it? (not to weigh it at all.) DeG-raffenreid v. Thomas, Ala. Eep. 681.</p> <p>n Illegal or improper evidence ought never to be confided to the jury, however unimportant it may be to the cause.” Brown et al. v. May, 1 Munford, 288.</p> <p>16. Although Sally Ladiga might have been “entitled” to the land, yet the present plaintiffs below cannot recover without proving to the jury that they had the legal title and that they were the heirs of Sally Ladiga. The general issue put in issue the legal title and the fact whether the present plaintiffs below were the heirs of Sally Ladiga. Hall v. Heirs of Wilson, 14 Ala. Eep. 295.</p> <p>17. It was error to admit “the common reputation amongst the Indians of the Creek tribe” to prove that the plaintiffs “ were the children and grand children of Sally Ladiga.” White v. Strother, 11 Ala. Eep. 720; Blann v. Beall, 5 Ala. Eep. 357.</p> <p>18. The evidence is clear beyond dispute, that the present plaintiffs below cannot recover, even if it were conceded that /Sally Ladiga could have recovered. They removed voluntarily from this country, and although Sally Ladiga has been dead some thirteen years, they have never returned or indicated any intention to return. They cannot have the land, after this voluntary removal and voluntary remaining out of the country, and without any intention of remaining in this country. 13 Ala. Eep. 800; 9 Ala. Eep. 601; Edwards v. Lewis, 18 Ala. Eep. 495, and authorities'cited there as to estates to arise on condition precedent; Pope et al. v. Hamner, 5 Ala E. 433.</p> <p>The first affirmative charge given, is wholly irreeoncileable with this view; because it asserts distinctly that the present plaintiffs were entitled to recover if the jury found that “Sally Ladiga was entitled to the land as a reservation under the Creek treaty of 1832.” This charge relieved the plaintiffs from the proof that Sally Ladiga was “entitled” “at the end of five yearsfi and from the proof of other essential matters, and is affirmative, and must work a reversal.</p> <p>1. The Act of January 16th, 1832, Aiken’s Digest, 1st edition, page 225, § 18, extended to the Creek tribe of Indians all the statute laws of Alabama, with certain exceptions, and, as a necessary concomitant, the rules of the common law, as applicable to our institutions and the genius of our government, were also extended to said tribe. This was before the treaty of March 24th, 1832, which, when adopted and certified, became the supreme law of the land. Wall v-Williams, 11 Ala. Eep. 826.</p> <p>2. There is nothing in the treaty which in any manner alters the laws of descent, made applicable to the Indians by the Act of 26th January, 1832 ; and any estate, real or personal, which the heirs at law of a Creek Indian would have been entitled to before the treaty, they would be at least equally entitled to after the treaty.</p> <p>3. Before the treaty, according to the case of Chinnubbce v. Nicks, (3 Porter, 362,) the right of occupancy, to no part of the territory, could be sold by any individual of the Creek tribe of Indians. It is not necessary to a correct decision of this case, to disputo the diclmn mentioned, but the observation of the court in that case was evidently made without at all considering the 14th section of the Act of 1836. Aikens’ Digest, 225, § 25.</p> <p>The decision was evidently based upon the authority of United States v. Clarke, 9 Peters, 168, and other cases there referred to, but those decisions did not touch upon the question, whether the general principle stated should not be controlled by legislation in the States where those tribes were situated. In Worcester v. The State of Georgia, 6 Peters, 580, the right of the States to legislate for tribes of Indians who had lost the power of self-government, and were surrounded by whites, was clearly admitted, but that case turned upon the treaty stipulations between the Cherokees and the United States, The legislature of the State of Alabama, before the treaty of 1833, at Washington, for the Creek tribe of Indians, must be presumed to have rested upon the ground stated in the case in 6 Peters, 580. The argument is conclusive, when the terms of the after made treaty are looked to. The treaty does not secure to the Indians any law-making powers in said territory, but excludes the idea, by a direct guarantee of the exclusive right to legislate for themselves, west of the Mississippi. The nationality of the tribe was destroyed, until they should emigrate west of the Mississippi. The twelfth article of the treaty regards the Indians then in this territory as a part only of the nation. The twelfth article provides a fond to defray the expenses of such Indians as before that time had emigrated.</p> <p>4. These citation^ are conclusive to show the power of the State Legislature before the treaty to extend its jurisdiction over the Creek territory and the Creek tribe,</p> <p>The reservation of' ninety sections to the principal chieis, was evidently intended to embrace also a reservation made to friendly chiefs, in the first article of the Treaty of Capitulation, made August 9, 1814. U. S. Statutes, 7, page, 120. That article granted the lands to the chiefs and their descendants, and no provision has been made by subsequent treaty, or by Congress, to give patents to the friendly chiefs provided for in the treaty at Port Jackson. The provisions of that treaty were carried out in the treaty of Washington, and not abridged in any manner.</p> <p>5. The subsequent legislation of Congress, on the treaty of 1832, (Statutes at Large, vol. 5, 186,) shows that Congress respects the rights of inheritance of the descendants of Creek Indians, and confirms sales made by them of lands belonging to the deceased reseiwoe.</p> <p>The whole power of legislation in relation to said lands is in the hands of Congress, subject to the restrictions of the treaty and the rights vested under the treaty; and the laws passed by Congress are not merely legislative construction, but stand in the light of an admission on the part of the government, that the descendants of Indians are entitled to the land.</p> <p>6. The decisions of our court upon the treaty of 1882, necessarily settle the law in relation to the hereditable quality of the estate in the hands of the reservee. In Chinnubbee v. Nicks, 8 Porter, 366, the court define the title to be a de-feasible fee, a qualified fee, and the decision is distinctly rested on the ground that Chinnubbee had made an appointment, and thereby defeated his wife’s right of dower, which otherwise would have been perfect at his death. In that case the court say that the President’s approval was no part of the contract of sale, and that it was merely an opinion of the President that the contract was good. Still, it was no contract without approval by the President, Chinnubbee died before the approval. If the land, on the death of Chinnubbee, es-cheated or reverted to the government, the President’s approval would have been more than a mere opinion; it would have been the only act, in relation to the sale, which could have been of any validity.</p> <p>The opinion in Chinnubbee v. Nicks is approved in La-diga v. Howland, 2 Blow. U. S. Rep.</p> <p>In Eipps v. McGehoe, 5 Port. 432, the title is called an inchoate legal title — the right of entry upon the land, and the right to resort to courts to assert the right. In Jones and Parsons’ heirs v. Inge and Murdis heirs, 5 Porter, 332, the court say, the right of the reservee was a legal estate vested in the Indian, and could be by him enforced in a court of law.” In this case, page 334. the case of Chinnubbe v. Nicks is approved and its meaning defined. The court did not decide that the reservee had no legal title.</p> <p>7. In Wells v. Thompson, 13 Ala. Rep. 530, the court recognize the rights of the heirs of the Indians to the land of deceased reservee, and classify the title as a “ defeasible fee,” de-feasible 11 on the not happening of a certain event,” to wit, the manifestation of a desire on the part of the reservee or his beirs, to remain upon tbe land, witbin tbe five years. Ladiga manifested ber desire, by suing for tbe land; and ber beirs, by continuing tbe suit after five years elapsed. Tbe government, by its patent, put tbe plaintiffs in error in possession of tbe land, and prevented Ladiga or ber beirs from acquiring tbe title. Can tbe government be beard, to say, “you bavc not manifested a desire to stay on tbe land,” after making sucb manifestation simply a vain act! But Wells v. Thompson is not in point. That was a suit brought after five years had elapsed, by persons who bad done nothing to signify a desire to occupy tbe land, and were not in tbe country when tbe treaty was made. That case turned upon the cur-tesy of the husband. How could be have curtesy in lands to which bis wife only bad a life estate? 2 Black. Com. 98, (125).</p> <p>8. Tbe idea, so frequently advanced, that on tbe abandonment, by the reservee, or on bis omission to signify bis intention to take a patent for tbe lands assigned to him, the land reverts to the government, cannot be extended to tbe beirs of the reservee, where tbe reservee did no act to work a forfeiture in bis life-time. There is no true idea of a reversion in the treaty, or arising ,from it; tbe idea upon which government succeeds to tbe entire estate is by forfeiture, not by reversion. It is a paradox, to say that tbe owner of tbe fee becomes a reversioner, when be grants no estate out of himself, but only agrees to grant an estate, upon condition!-. There is no provision in the treaty for either a reversion or a forfeiture; it is all a matter of construction. At common law, every intendment is made in favor of the heir at law, and be is not to be disinherited, except by a plain intention . 1st Durnford & Bast, 109 ; 1 Black. Com. 371, and note 6.</p> <p>9. The estate of the Indian reservee is very nearly assimilated to an estate upon special trust, to be conveyed to the cestui que trust or bis assignee upon conditions annexed to tin; estate, and tbe title of tbe government resembles very closely tbe ultimate fee which enured to tbe Crown, under tbe Feudal System. Tbe law is well settled, that estates do not es-cheat or revert (synonymous terms) to tbe Crown, where' there are beirs at law, or even, in a trust estate, where there are no heirs at law, but a trustee. Greenleaf’s Cruise, vol, 3, p. 194, tit. xx, Escheat, § 2, et seq., to page 208-9.</p> <p>10. By tbe treaty, it was tbe design of botb contracting powers, to secure to every class of Indians, tbe benefits of tbe same; bead chiefs, orphans, beads of families, and those who bad emigrated. If tbe land was forfeited by tbe death of tbe bead of tbe family, tbe family' would be unprovided for. Congress, in construing tbe treaty, asserts tbe rights of tbe, widow and children of tbe reservee to dispose of tbe land.</p> <p>11. If a woman bad lost her husband and children, before tbe treaty, she would be unprovided for, unless she were the bead of a family; but she would be a bead of a family, under the terms of tbe second article of tbe treaty, which makes tbe reservation for the use of the reservee, not of tbe family. Tbe term “ bead of a Creek family,” is a descriptio personas, and is not to be construed according to tbe rules of construction applicable to our statutes of exception from execution. Those statutes are intended to secure property for the use of the family, and tbe term family is not a descriptio personae, but a term denoting a class of persons. Suppose a Creek man with children married a Creek woman with children by another bus-band, and they were living together at tbe date of tbe treaty, would not botb of them take reservations? It will not do to say that this was a casus omissus in making tbe contract; such would not be a fair interpretation of it. By tbe treaties, from first to last, tbe Creeks put themselves under tbe guardianship of tbe government; and tbe President is called their great father. Shall tbe guardian, by a narrow construction, rob bis ward of a whole territory, and then of tbe promised consideration upon which tbe cession was made ? See Statutes at Large, vol. 7, p. 85 ; Cherokee Nation v. Georgia, 5 Peters, 1.</p> <p>12. If these positions be true, there was no error in admitting evidence of Ladiga’s acts and declarations about her grand-child, for which tbe court would reverse, for there was no injury. Tbe proof was clear, independent of that proof, that she was tbe bead of a family.</p> <p>13. As to tbe competency of John Gooden, these cases are conclusive. 5 Porter, 503; 5 P. 161; 18 Ala. Bep. 196; 18 Ala. Bep. 118.</p> <p>14. Tbe demurrers to tbe pleas were well sustained. Tbe general issue bad been pleaded jointly, and tbe ease tried upon it, and tbe court should have rejected the pleas; but if not rejected, the pleas were bad. 3 Bibb, 314; 2 Stew. 356; 3 Rand.; 12 Serg. & Rawle, 435; 3 Bibb, 180; 8 Watts, 356 ; 9 Dana, 452 ; 3 B. Munroe, 176 ; 21 Wend. 598.</p> <p>15. The proof of Sally’s declarations made to Goodwin were competent as a part of the res gesta’-, or control of the boy. See Phillips’ Ev. Cow. & EL, notes.</p> <p>16. The new trial, at Spring Term, 1846, was granted on payment of all costs by plaintiff, “on or before the 1st day of August following.” This would seem to bring the order within the rule which is hinted at by this court in Edwards v. Lewis, 18 Ala. Rep.; but at the same time, and in the same entry, follows an order for a change of venue In relation to this the entry says, “if the cost is not paid by the first of August, a change of venue is denied.” Is it not, therefore, apparent, the court did not intend to make the new trial depend on the payment of costs as a condition precedent ?</p> <p>17. But it is said Sally was dead at the time this order was obtained'. The record does not show this fact. We find, “ that in the fall of 1838, she started with the emigrating company of Indians, and never reached the west bank of the Mississippi river.” If inferences are to be drawn, they will be in favor of the record, and not against it. Indeed, every intendment is in favor of record, which is not expressly negatived by the facts set forth in the record.</p> <p>Again, it said “ a party complaining of error must set out in the record so much of the evidence as is necessary to show it affirmatively." Brazier & Co. v. Burt, 18 Ala. Rep. 201.</p> <p>No exception was taken in the Circuit Court of Benton County, to the action of that court in changing the venue; but we find the defendants objecting in the Circuit Court of St. Clair to the record or transcript and papers being filed in that court. This objection not only came too late, but was made in the wrong forum.</p> <p>18. The cause was revived in the name of the heirs of Sally. The Court determined who were the heirs, and no exception was taken to this mode of trial; therefore this court will not review that question. Doe ex dem. Ethridge v. Malempre, 18 Ala. Rep. 571.</p> <p>19. The judgment entry of Spring Term, 1849, shows that defendants went to trial on a joint plea of “ not guilty,” and also several pleas of “ not guilty.” They also plead specially, as appears by the return to the certiorari.</p> <p>The verdict finds each defendant in possession of a separate portion of the land, viz., Rowland of the north-east quarter, and Heifner of the south-east quarter, and separate writs of possession are adjudged as to each. We insist that this is in strict accordance with the well settled practice — -these parties being trespassers on the lands of the plaintiffs; and this has been the practice in actions of ejectment for a hundred years. Jackson ex dem. Haynes v. Wood, and cases cited, 5 John. 278; Roman v. Sidney, 12 ib. 185; Smith v. Shack-elford, 9 Dana, 452. In Camden v. Haskell, 3 Randolph, 466, the court say “the proposition insisted on is negatived by the uniform practice and all the authorities,” and refer to Buller’s Nisi Prius, 98, and Adams on Ejectment; 21 Wend. 598 ; 12 Serg. & Rawle, 435.</p>

<p>1. The fourth section of the act of 1820, (Clay’s Digest, S50 § 4,) ■which gives a penalty against any person who shall sell an estray before the expiration of twelve months, applies only to estrays which are talcen up and appraised as required by the first section of the act.</p> <p>2. To entitle the plaintiff in error to a reversal, he must show injury as well as error.</p>

Ekkob to tlie Court of Probate of Mobile. The estate of Charles Hammond, deceased, was declared insolvent on the 20th February, 1846, and a final decree of settlement and distribution was made on the 9th September, 1851.

Ebeoe to tbe Circuit Court of Talladega. Tried before tbe Hon. Rorert Dougherty. Tbe plaintiff in error was indicted in. tbe court below, for obstructing a public highway.

<p>Error to the Circuit Court of Talladega.</p> <p>Tried before the Hon. E. Pickeíts.</p> <p>Walker Reynolds commenced a suit, on a firm debt, against the firm of James A. Hogan & Co., which was composed of James A. Hogan, John F. Tompkies and John Hardie. Har-die died pending the suit, and judgment was afterwards rendered against tbe two surviving partners. After tbe rendition of tbe judgment, Benjamin A. Smoot paid tbe full amount of it to the plaintiff, and took from him an assignment of tbe judgment. Tbe money so paid to Beynolds by Smoot did not belong to tbe latter, but was furnished to him by Tompkies and tbe executor of Hardie, each furnishing one half; and tbe money advanced by Hardie’s executor belonged to tbe estate of bis testator.</p> <p>Upon this state of facts, James A. Hogan moved tbe Circuit Court to have satisfaction of tb® judgment entered. A jury was empannelled to try tbe issue; and tbe court charged them, that tbe money furnished to Smoot by Tompkies operated as a satisfaction pro tanto of tbe judgment, but that tbe money furnished by Hardie’s executor did not; to which charge Hogan excepted. Tbe jury returned a verdict, that tbe cost and one half of the principal was unpaid; whereupon tbe court ordered tbe judgment to be satisfied according to tbe verdict, leaving unsatisfied tbe cost and one half tbe amount of tbe judgment.</p> <p>Hogan now brings tbe case to this court, and assigns for error; 1. Tbe charge of tbe court; 2. The matters disclosed by tbe bill of exceptions.</p> <p>Tbe question presented by tbe record, is this: Does a payment by, or a transfer to, tbe representative of' a deceased partner of a judgment obtained against tbe surviving copart-ners, on an indebtedness upon which tbe estate of such decedent is liable, operate as an extinguishment of tbe same?</p> <p>In case of a judgment against all tbe co-partners, it is clear that one could not thus purchase and use tbe judgment; and tbe principle applies in full force, where there is no judgment, but, as in this case, an admitted liability.</p> <p>It is a familiar principle, that one co-partner cannot sue another at law, whilst the partnership affairs are unsettled, and no balance struck.</p> <p>This court has held, too, in many cases, that a sheriff paying a judgment, cannot use tbe execution against tbe defendant. Eutland’s Admr. v. Pippin, 7 Ala. 469; Roundtree v. Weaver, 8 Ala. 314; Crutchfield v. Haynes et al. 14 Ala. 49.</p> <p>And eren a surety, whose equity is certainly equal to that of a co-partner, cannot pay the judgment and use the execution to reimburse himself out of his principal. Morrison et al. v. Marvin, 6 Ala. 797; Abercrombie v. Connor, 10 Ala. 293; Thompson v. Wallace, 3 Ala. 132. See, also, Chandler et al. Exrs. v. Shehan, 7 Ala. 251, deciding that a party liable to pay a debt cannot sue upon it.</p> <p>But the following citations are deemed to be more in point, and, m principle, conclusive: Bartlett & Waring v. McRae, 4 Ala. 688; Avery & Woodcock v. D. & B. Petten, 7 John. Ch. Rep. 211; Milton v. Codd et al., 7 Bam. & Cres., 419; Teague v. Hubbord, 8 Barn. & Cres. 345; Bank IT. S. v. Winston’s Exr. et al., 2 Brock. 232.</p> <p>L Even if it be conceded that the payment of a judgment by one who is technically a party to the note or bill or receipt on which the judgment is founded, and also a party to the judgment, is, per se, a satisfaction, yet it is clear, that an advance of the money by one who is not a party to the judgment, or the cause of action on which it is founded, to the plaintiff in the judgment, does not annul or satisfy the judgment; especially if the plaintiff agrees or consents that the judgment shall stand open, for the re-imbursement of the person making such advance. Olason v. Morris, 10 Johns. R. 525; Lyon v. Bolling, 9 Ala. 463; Leach v. Williams, 8 Ala. 764.</p> <p>2. Hogan and Tompkies were surviving partners, and the only defendants in the judgment. As surviving partners and defendants in the judgment, they were bound to pay off the debt, and were entitled to all the partnership property for that purpose. There was no duty on JohnT. Hardie to pay. He was not a partner, nor a party to the debt or judgment. And although he may have been executor of the deceased partner, that did not affect the case.</p> <p>It is clear there is no error in the judgment below, of which Iiogan, a surviving partner and defendant in the judgment, can be heard to complain.</p>

Tried before tbe Hon L. Gibbons. This suit was commenced by attachment by tbe plaintiff in error against Aaron H. Jones, and Labuzan was summoned as a garnishee.

Tried before tbe Hon JNO. Gill Shorter. 1. Tbe United States, in providing for tbe survey of tbe public domain, bave established rules by wbicb all disputes tbat may arise about boundaries, or tbe contents of any section or sub-division of a section, shall be ascertained.

Tried before tbe Hon. JOHN Bragg. EjbotmeNT by Cliaudron against tbe plaintiff in error, to recover certain lots situated in the city of Mobile. The statement of facts in the opinion is so full and complete, that it is unnecessary to repeat them here. 1. The secondary evidence of tbe existence and contents of tbe power of attorney from Kennedy to Duval was inadmissible. The law presumes die power to have been retained by Grarrow, or to have passed to Duval, the purchaser.

<p>Error to the Chancery Court of Barbour.</p> <p>Tried before tbe Hon. J. W. LesesNE.</p> <p>William Cowart filed bis bill in tbe Chancery Court of Barbour, against Moses Bryan and David MePhail, in which he alleges that, in 1838, Bryan applied to him to procure a loan of §500 for the defendant MePhail, who was Bryan’s son-in-law; that complainant made the loan, and Bryan became security for MePhail; that about a year afterwards complainant made another loan, of $622, to MePhail, at the instance of Bryan; that, at the time of the last loan, complainant surrendered to MePhail the note for the previous loan, and with his consent it was cancelled; that, at the same time, it was agreed that Bryan should advance a sum equal to the two loans made bjr complainant to MePhail, and that both Bryan and complainant should each execute to MePhail his promissory note for $1,042XW, which was accordingly done; that at this time complainant and Bryan took from MePhail a deed for a certain house and lot in the town of Eufaula, wliicb is particularly described in tbe deed which is made a part of the bill; that this deed, though absolute on its face, was intended as a mortgage and a security for the money thus advanced; that the advancement was made to enable McPhail to complete the building, and the notes were given without any consideration, but merely to correspond with the amount stated in the deed as its consideration; that at the commencement of these transactions, he was wholly unacquainted with McPhail, and advanced the money at the instance of Bryan, whom he knew; that complainant never took possession of the premises, nor received the rents and profits, but that McPhail retained and held both; that Bryan never made any advance of money to McPhail, as he had agreed to do, nor does complainant believe that he ever paid his note for $1,042XW; but that said Bryan has retained constantly since both his own note and complainant’s ; that he now pretends to have obtained complainant’s note by transfer from McPhail, and has brought suit on said note against complainant in the Circuit Court of Barbour, and recovered judgment ; that complainant endeavored to prevent a recovery, by offering to prove the foregoing facts, but his defence was ruled out by the court; that execution has issued on the judgment, and is now in the hands of the sheriff: that Bryan and McPhail have wholly failed to repay the money advanced by complainant to McPhail.</p> <p>The bill prays that the deed may be declared a mortgage, that the mortgage may be foreclosed, that the premises may be sold, and that the judgment may be enjoined; or, if the court should not hold the deed a mortgage, then he prays that McPhail may be made to account for the rents and profits, and that they may be applied to the satisfaction of Bryan’s judgment against complainant.</p> <p>The defendants filed separate answers. Bryan admits that Cowart advanced the §500 to McPhail at his instance. He also admits the payment by Cowart of the sum of $622, but he positively denies that it was intended as a loan to McPhail. He alleges that, at the time this payment was made, Cowart and himself purchased the house and lot from McPhail, and the $622 was paid by Cowart on this purchase; that the price of the lot was agreed on between the parties, one-half of which. Cowart agreed to pay, and the other half was to be paid by respondent; that at this time Cowart surrendered to McPhail said note for $500, paid the $622, and executed the note on which the judgment mentioned in the bill was founded; that at the same time respondent agreed to pay to McPhail, or to account with him for a like sum, which respondent did by crediting McPhail on advancements already made to him, and by giving his note for $500, which respondent has since paid; that thereupon McPhail made the deed to Cowart and respondent mentioned in said bill; that this deed was never designed as a mortgage, but was intended to be, what on its face it purports to be, an absolute deed of bargain and sale; that he has long since paid to McPhail his portion of the purchase money, and is the owner, for valuable consideration, of the note on which the judgment is founded. He admits that McPhail has kept possession of the house, but alleges that he did so as the agent of Cowart.</p> <p>McPhail admits that he borrowed the $500 as charged, and that he afterwards received from Cowart $622; but denies that it was as an additional loan to enable him to finish his house, and alleges that it was paid as a part of the purchase money of the house and lot mentioned in the deed, and was paid contemporaneously with the making of the deed, and with the cancellation of the $500 note. He also denies that the deed was intended as a mortgage, and insists that it was an absolute deed of conveyance, and that such was the intention of all the parties. He admits that Cowart then made the note on which judgment was rendered, but denies that it was made without consideration, or for the mere purpose of corresponding with the amount named in the deed; but, on the contrary, asserts that it was for the balance of Cowart’s portion of the purchase money for the house and lot according to the agreement between them; denies that Bryan has not paid his portion of the purchase money according to his contract; alleges that he owed Bryan all that the latter was to pay, except $500, for which Bryan executed to him his note, which he has since paid in full; that some time after Cowart’s note was delivered to respondent, he sold it to Bryan, who paid him the full amount of it. He disclaims all interest in the judgment, and denies all fraud. He alleges that he was in possession of two rooms in the bouse as tenant for Cowart & Bryan, and of the remainder of the house as their agent, in which latter character he rented the rooms to others, and received the rents, for all which he is ready and willing to account.</p> <p>After the testimony was taken, the bill was amended, by making a fuller averment of an attempt to defend the suit at law, and alleging McPhail’s insolvency. The consideration for the making of the deed, as expressed on its face, is $4,399?W. The subscribing witness to it are James McNabb and James G-resham.</p> <p>Jacob Nelson, the first witness in behalf of complainant, whose deposition appears in the record, testifies that Bryan told him in 1842, that Cowart and himself had kept McPhail’s house from being sold, and that they held the house in their own names; and in another conversation, when Bryan was complaining of Cowart, he told witness that he held Cowart’s note for $1,040, and when asked why he did not sue on it, replied, that there was a secret about the note, that he could not sue on it, that it was given about the time McPhail failed. This witness was not cross-examined by the defendants.</p> <p>L. 0. Harrison, another witness for complainant, testifies that Cowart handed him a note on Bryan, does not recollect the time, but his iirfpression is that it was in 1843, in payment of a debt due witness; does not recollect who was the payee of the note; it was paid, and the proceeds applied to Cowart’s credit; does not know who paid it; has no recollection of an}r conversation with B. concerning it; the whole business was attended to by his book-keeper.</p> <p>McIntyre, another witness for complainant, testifies that McPhail told him, in June, 1841, that he was paying interest on $2,200, which Cowart and Bryan had advanced for him on the brick-house in Irwinton, and that the rent of the house would soon pay it; that Cowart and Bryan held a mortgage on the house. Witness further says, that at various times he heard McPhail say — that he was renting the house at from $10 to $12 per month; that in March, 1842, Bryan told witness he was owing Cowart borrowed money, and having taken Cowart’s notes to one Boberts he was short of money, and could not pay witness what he owed him.</p> <p>Gr. C. Hodges, another one of complainant’s witnesses, deposes that he met Bryan in 1846, at Columbus, Gra., when a conversation took place between them about the note; witness observing that it was wrong for old neighbors to fall out, alluding to Bryan and Cowart, Bryan replied, that if Cowart had not attempted to keep John E. P. Cowart’s property back, the note should never have come against him.</p> <p>Kobert Hill, another one of complainant’s witnesses, deposes that, in 1843, he was present when Bryan and the Cowarts had an interview at Bryan’s shop; they met, as witness understood, to make friends; Bryan and complainant shook hands at parting; witness did not hear what passed between them, but, after the Cowarts left, Bryan told him that they had made friends, and when he (B.) had destroyed a note in his possession, which he would do that evening, everything would be settled between him and complainant; in 1842, or early in 1843, witness had heard Bryan speak of having borrowed money from Cowart.</p> <p>M. A. Browder, for complainant, testifies that, in the spring or fall of 1838, Bryan applied to him for a loan of money, for the purpose of relieving McPhail’s house from the debt for building it, Bryan expressing his apprehensions that it would be sold; witness could not let him have the money; a few months afterwards, witness asked Bryan whether he had arranged that business for McPhail, and Bryan answered that he had got the money from Cowart, and saved the property, and witness thinks he said that he had taken the title in his own name.</p> <p>J. Buford, for complainant, testifies that, from 1838 to 1843, he alone, and himself and partner, rented a room in the house in controversy; that he rented of McPhail, and when making payments took receipts signed by McPhail, which are appended to his deposition; McPhail seemed to have the sole control of the property during those years; witness thinks that in settling his last account he paid a part in a note on Bryan.</p> <p>John McNabb, one of defendants’ witnesses, testifies, that in the latter part of 1838 or in 1839, Bryan deposited $1,600 or $1,700 with witness and his brothers, with instructions to pay it over to McPhail, which was accordingly done; a part of it was used to pay workmen on tbe building; after this Bryan drew $400 or $500 from the Bank at Montgomery, and from this source McPhail received money, but witness does not state how much. This witness was cross-examined, but his testimony remains the same in effect.</p> <p>Creo. W. Thomas, for defendants, deposes, that in 1845 he went to complainant, for the purpose of renting a room in the house mentioned in the bill, when complainant referred him to McPhail, saying that he (McP.) was his agent to rent out the house; witness then went to McPhail, who rented him the house as agent of complainant.</p> <p>Stow, a witness for complainant, deposes, that McPhail occupied and rented the house in dispute, from 1840 to 1846 or 1847, when he abandoned it, after the judgment at law was obtained against Cowart; supposes that McPhail received the rents; knows that he received the rent for one year of one room which was used by the Town Council; witness estimates the rents, and values the lot and building in 1889-40 at $2,500; says that the value of the property rapidly declined after 1840.</p> <p>T. Robison, a witness for defendant, testifies, that he has known the premises since the house was built; that they were occupied by McPhail and others until the spring of 1847, when he abandoned them; in 1839 the building and lot was worth $4,000, but has been steadily declining in value; that the rents in 1839 and 1840 were worth $700 each year; in 1841 and 1842, half that sum; and steadily declined; when McPhail abandoned the premises, they were not worth more than $300, and the annual rents $50.</p> <p>At the hearing, a motion was made to dismiss the bill for want of equity, which was overruled. TJpon the state of facts above set forth, the Chancellor declared the deed a mortgage, decreed a foreclosure of the mortgage, and a perpetual injunction to the judgment at law, and directed the Master to state an account, &c.; and all these things are now assigned for error.</p> <p>1. A collateral writing (the deed) does not exclude oral evidence, to show the consideration or want of consideration in the note sued on. If the complainant ever had any remedy against tbe note, that remedy was in tbe court of law. 1 Starkie on Ey. 394, § 16; Baroque y. Bussel, 7 Ala. 798; Bates y. Terrell, 7 Ala. 129; 1 U. S. Dig. (Supplement) 731 to 733.</p> <p>2. Tbe judgment at law is conclusive of every fact and '•question wbicb might have been tried there; such as tbe question, whether, at 'the date of tbe note and deed, McPhail was indebted to Cowart, or Cowart to McPhail, &c.</p> <p>3. Where the plaintiff’s own witness proves that he is not entitled to sue in Chancery, although the evidence is not pertinent to the issue, the court is bound to notice it. A law court will do so, and of course Chancery will. Chancery always looks to see whether complainant’s hands are clean, and whether he ought to have its active aid. Susan v. Wells, 3 Brevard’s Bep. 11.</p> <p>4. Whenever, in proving or attempting to prove his right to relief, the complainant proves that the transaction out of which his case arises, is part of a scheme to defraud the creditors of a known insolvent, the Court of Chancery cannot soil its hands by becoming the agent or minister of either party to such fraud, to consummate their unlawful agreements.</p> <p>5. Chancery has no jurisdiction of the case made by the bill. But if it has, the case made by the bill is not sustained by proof against the responsive denials of the answers.</p> <p>1. As to jurisdiction: at law, a deed cannot be explained as a mortgage, 12 Ala. 678 ; 8 Conn. 189; 4 Mass. 443; 2 Sumner, 527; 13 Mass. 446, even when the question arises collaterally, and between strangers to it. 8 Conn. 121; 7 ib. 143; ib. 409; 3 Phil, on Ev. 1422,1431-5, note 961; 2 Am. Chan. Digest 180-6; 5 Smedes & M. 91; 14 Ala. 218; 2 Conn. 481; 6 ib. 653; 5 Stew. & P. 67; 4 ib. 116; 1 Ala. 438; 3 Johns. 508. But in equity, an absolute deed may be explained to be a mortgage. 14 Ala. 221. If the transaction was intended as a security, the form is immaterial. 2 Sumner, 533; 5 Paige, 9; 2 J. J. Mar. 471; 1 Johns. Ch. B. 594; Dev. Eq. B. 373; 12 Mass. 456; 6 Monroe, 120; 3 J. J. Mar. 354. The grantee may treat the deed as a mortgage, and apply for a foreclosure. 9 Wheat. 489; 5 U. S. Con. E. 648.</p> <p>Though a party may defend on one ground at law, yet if equity has jurisdiction on another ground, he may go into equity after a judgment at law. 18 Ala. 200; 8 ib. 35; 1 Am. Chan. Digest 348. As to the foreclosure the jurisdiction is clear, and the right to enjoin the judgment at law, or to order the money to be refunded if paid, follows as an incident. Bryan, being cognizant of all the facts, has no better equity than MePhail; and it seems, when the note constitutes the over-payment, money may be recovered back, even at law, though paid on judgment. 11 Mass. 66. But suppose the foreclosure and injunction were independent, rather than incidental causes of action, yet as they grew out of the same transaction, cognizance of one branch draws after it jurisdiction of the other. Story’s Eq. PI. §§ 283, 284; 1 Story’s Equity § 68, 73. And where the remedy is more complete in chancery, jurisdiction attaches. 4 Howard (Miss.) 455; 6 Ala. 24.</p> <p>The attempt of Bryan and MePhail to treat the note as binding is “ using it against the intent of the parties,” and is such a fraud as gives equity jurisdiction. 14 Ala. 220. Cow-art could not defeat the note, without showing the deed to be a mortgage, which he could not do at law; and the suit at law was making that court an instrument of injustice, where equity will interpose. Story’s Eq. PL 472.</p> <p>II. As to the evidences of the deed being a mortgage: The vendor remained in possession. 2 Sumner 536 ; 3 Powell on Mortgages 1090. The transaction began by the proposition to borrow money. 2 U. S. Con. E. 481. The relation of debtor and creditor existed. 7 Ala. 724. Bryan and MePhail both admit in their answers that Cowart’s note was never in McPhail’s hands. Bryan did not advance his portion of the cash, as per agreement. Both answers admit a deficit of $500. Where the onus is on the defendant, his answer to a negative allegation is no proof. 6 Ala. 718. MePhail states Bryan’s advance to have been partly made prior to the purchase. A failure to take note is not conclusive of sale. 12 Ala. 678; 16 ib. 472. Several witnesses testify to facts showing that the deed was treated as a mortgage by tbe parties. And this evidence is sufficient to outweigh the answers, though positive, clear, precise and definite. G-reenl. § 260; 2 Peters U. S. Digest 258, §§ 11, 35.</p>

Tried before tbe Hon. Robert Dougherty. Assumpsit by Robinson against Holt on a promissory note. All tbe facts of tbe case are set out in tbe opinion. 1. Tbe note originally executed by Jernegan to Robinson is void. A promise made to an officer, as a sheriff, for tbe omission of a duty, wbicb be is bound to perform, is void.

The estate of Thomas Williamson, deceased, was declared insolvent, by the Orphans’ Court of Talladega, on the 28th April, 1845. Upon tbe final settlement of said estate, on tbe 18th July, 1846, Gaffney, tbe plaintiff in error, presented for allowance a promissory note, of which tbe following is a copy : “ On or before tbe first of March next, we or either of us promise to pay Michael Gaffney, or bearer, the sum of sixteen hundred dollars, for value received.

Tried before the Hon. L. GibboNS. This was an action of detinue brought by McDevitt against Brainard, to recover a negro woman slave.

Appeal to tbe Circuit Court of Mobile. Tried before the Hon L. GtbbONS. EjectmeNT by the Bank against the plaintiffs in the appeal, who are the heirs at law of Charles Smith, deceased, to recover a lot of ground situate in the city of Mobile, and particularly described in the pleadings. There was a judgment in the court below for the Bank, and appeal by the defendants to this court.

Ebbor to the City Court of Mobile. Tried before the Hon. Alex. McKikstry. The plaintiff in error, Nathan H. Crist, was indicted in the City Court of Mobile, for the murder of Theodore Nye. On the trial, a bill of exceptions was signed and sealed at the instance of the prisoner, and made part of the record by the court.

Tried before tbe Hon. JOHN Bragg. Tbe defendant in error, as tbe administrator of G. W. Creagb, deceased, brought bis action of detinug against Benje, tbe plaintiff in error, to recover certain slaves. Tbe statute of limitations and tbe general issue were pleaded.

Tried before tbe Hon. Lymah GibboNS. Tbis was an action for a malicious prosecution brought by Sanford against Ewing. Tbe prosecution instituted by Ewing against Sanford, was for tbe larceny of a slave, a woman named Eliza. Tbe evidence of tbe cause showed, that tbe negro woman Eliza bad been levied upon as tbe property of T. Sanford.

A. C. Cbeesborough was summoned, on tbe 18th day of April, 1849, as a garnishee at tbe suit of James Counoley, to answer wbat be was indebted to Joseph W. Eurniss. The garnishee answered that be owed Eurniss $386x4/o, but that on tbe 1st of April, 1849, be bad received a letter from Eurniss, informing him that be bad drawn a draft on him, in favor of Wingate & Breman, for $895.

Tried before Hon. W. W. MasoN. This bill was filed by the plaintiffs in error, against the defendant, as the administrator with the will annexed of William Matherson, deceased, to recover certain legacies which were bequeathed by said testator to Maria Pearson, one of tbe complainants, and for an account and settlement of the administration.

<p>Ereor to tbe Chancery Court of Mobile.</p> <p>Tried before the Hon. J. W. LesesNE.</p> <p>The bill in this case was exhibited by the defendant in error against Mrs. Lang, in her own right, and as administratrix of Willis Lang, deceased, and the other defendants, as distrib-utees, and heirs at law of said intestate. The object of the bill is three-fold; first, to procure a settlement of the estate of Willis Lang, so as to ascertain and set apart the share to which Mrs. Lang, his widow and administratrix, is entitled; secondly, to charge that share with the payment of the claim of the defendant in error, who is her judgment creditor; and thirdly, to set aside a voluntary deed made by Mrs. Lang to her children, conveying all her interest in her husband’s estate to them.</p> <p>The bill charges, that the value of the personal estate which came to the hands of the administratrix, is $13,000, besides a large and valuable real estate in the city of Mobile, and elsewhere; that the administratrix has made no settlement, but that the estate is ample to pay off all its debts, and leave a large sum for distribution; that complainant has obtained judgment against Mrs. Lang, and an execution on it has been returned, “no property found;” that, to avoid the payment of this debt, she has by deed conveyed to her children, the heirs of Willis Lang, all her right, title and interest in and to the . estate of said Willis Lang, and that said deed is fraudulent and void. The bill further charges, that Mrs. Lang refuses to settle in the Orphans’ Court, that the amount of her share of the estate may be ascertained. The prayer of the bill is, that she be required to state an account, and make settlement in the Court of Chancery; that her portion of the estate be ascertained, and by the decree of the court subjected to the payment of the complainant’s demand, and that the deed to her children be set aside.</p> <p>The defendants answer, denying that Mrs. Lang is in equity entitled to any portion of the estate, and alleging that she has wasted and misapplied the assets of the estate to the amount of upwards of $10,000, a sum exceeding the value of her distributive portion. They deny all fraud in making the deed to the children, and insist it was made in good faith by Mrs. Lang, to indemnify them against loss from the waste of the assets by her as administratrix. To the answers, an account of the assets, expenditures, &c., of the estate under the management of the administratrix, is appended as an exhibit.</p> <p>The Chancellor, on the first hearing of the case, held, that the lien of the distributees on the distributive portion of Mrs. Lang, arising out of their claim against her for wasting the assets of the estate, was superior to that of Brown, the defendant in error, and must be first satisfied, and offered the complainant an account,' to ascertain if there would be any balance due to Mrs. Lang on her portion of the estate of her husband, after accounting to the children for her waste of the assets of the estate; but he declined setting aside the deed until such account should be taken.</p> <p>The complainant prosecuted a writ of error from this decree to this court, where it was affirmed, and the case was sent back to the court below for further proceedings on the decree, under the leave given by the Chancellor.</p> <p>After the case was returned to the court below, the master, upon notice to the parties, proceeded to act on the matters referred to him by the Chancellor, and reported at the April term, 1851. The order of reference, and decree accompanying it, are in these words: “It is ordered and decreed, that the master take an account of the estate of Willis Lang, deceased, and the amount of assets of said estate wasted or misapplied by Catharine Lang, the administratrix, and of the balance of debt against her, and in favor of said estate, and the value thereof she is entitled to as a distributive share of the same.</p> <p>He will also take an account of any payments made by Willis Lang to the complainant, in bagging and rope, or otherwise, as stated in the answer. He will also take an account of the amount due the complainant on his said judgment.”</p> <p>In his report, the master states the sum due complainant to be, $1982,Vo, including interest to the date of his report; that the real estate left by Willis Lang was, at the time of his death, worth $8,000; his personal estate, $18,000; the rents and slave hire to the taking of the account, $5,000; making an aggregate of $31,000. IJe reports Mrs. Lang’s portion to worth, $5,700.</p> <p>The report does not show, that the master stated any account current between the administratrix and the estate, from the commencement of her administration to the time of taking the account, so as to show what was the true condition of the estate; he makes no inquiry as to the waste or misapplication of assets by the administratrix, nor does he strike the balence between her and the estate, as required by the order of reference. These portions of the order of reference are wholly disregarded.</p> <p>The defendants filed exceptions to the action of the master, in taking and reporting the account. They are :</p> <p>1. “Because, in ascertaining the value of the personal estate, of which Willis Lang died seized and possessed, the master disregarded the appraisement thereof, made by due course of law in the Orphans’ Court, in evidence before him by the bill of complaint, and by the answers;</p> <p>2. Because the master set aside and disregarded said ap-praisement, on the oath of one witness, who stated Ms knowledge of the value thereof to be slight;</p> <p>3. Because the master allowed the said appraised value to be disputed by parol proof;</p> <p>4. Because it was in proof by Dudley Hubbard, that when the said Lang died, he owed debts to a large amount, which had been discharged by the administratrix, the amount of which debts so paid, in the ascertainment of the dower of the administratrix, Mrs. Lang, was not deducted from the said value of the personal property, nor was any account whatever taken of the same;</p> <p>5. Because the master failed to take any account of the waste of assets by the administratrix, which is distinctly set out in the answers of the heirs, and admitted by the adminis-tratrix, and that he refused to receive said answers as evidence of these acts of waste;</p> <p>6. Because he refused to consider the accounts A., B. & 0. attached as exhibits to the answers, as proof, though they are called for by the prayer -of the bill, and are given in response thereto;</p> <p>7. Because the account was not taken, nor the report made up, according to the directions of the Chancellor;</p> <p>8. Because the master refused to consider the accounts A., B. & 0. attached to the answers, when they were not surcharged or falsified, if at all, by more than one witness, who is unsupported by corroborating circumstances;</p> <p>9. Because the master’s report is contrary to the evidence before him upon the matters referred.”</p> <p>These exceptions were severally and collectively overruled by the master, and on an appeal to the Chancellor, were also overruled by him.</p> <p>At the April term, 1852, the master was, by consent of parties, ordered to report the proof of Hubbard and Lang, witnesses examined before him.</p> <p>But the view taken of the case renders it unnecessary to note particularly this proof.</p> <p>On the final hearing, the Chancellor set aside the deed from Mrs. Lang to her children, declaring it to be fraudulent as to the complainant, who is her creditor, and proceeds, -‘that the defendants pay into court, for the use of the complainant, the sum $1982tW, together with interest on $1265TVo, the principal amount of said sum from the 21st April, 1851, within thirty days of this date, and, in default thereof, that an execution may issue therefor against said defendants in the usual form.”</p> <p>From this decree a writ of error is prosecuted to this court, and the action of the court in overruling the defendants’ exceptions to the master’s report, and the final decree, are here assigned for error.</p> <p>The complainant’s evidence, if all true, proves nothing as against the children of Lang. The issue between them and the complainant, may be thus stated: The complainant charges, that the estate of Lang is able to pay all its debts, &c, and have, at the time of filing the bill, a large surplus for distribution ; that Mrs. Lang is entitled to a distributive share ; 'that she is indebted to them, and they seek to condemn it. The children, in their answers, deny the charge, and say that there is no fund in hand to which she is entitled; that she has received and spent already much more than she is entitled to as a distributee. Now, what is the proof under this issue ? The complainant proves that Mrs. Lang received into her hands, some fifteen years ago, as administratrix of said estate, a large amount of property; and here all the evidence stops. There is no evidence that she has ever accounted for one cent of this property. Nor does the complainant, who has taken her shoes, even propose to do it; nor does the evidence any where show that there is now one dollar on hand, in reach of the court, subject to a present division. There may have been a surplus on hand, in 1837, before any debts were paid or losses incurred; but can any one answer, from the evidence, where it is now ? of what it consists, money, property or doubtful claims? The complainant seems to have forgotten his position in this case; he seems to claim a child’s position, and endeavors to charge Mrs. Lang, when, in fact, he has assumed Mrs. Lang’s place, and she must account for all these things before he can get her share.</p> <p>The master should have reported the amount of assets now on hand, subject to division, and of what it consisted. The funds should then have been divided by a fair mode of division, and Mrs. Lang’s portion set apart, and sold to pay complainant’s debt. But, instead of doing this, they ascertain what ought to be the amount of funds, without any regard to whether it is a real or only an imaginary fund: whether notes or outstanding debts. No final decree could or ought to have been rendered on this report.</p> <p>The decree in this case is erroneous in another essential. The defendants are ordered to pay this ascertained share of Mrs. Lang, or execution issues against them all; so, the result will be, that if this uncertain surplus the master reports, is not found when the sheriff goes, the children of Lang are not only to lose their interest in the estate, but are to pay the judgment against Mrs Lang out of their own funds.</p> <p>But, considering this case as the parties seem to have considered it below, the master’s report is full of errors. The complainant charges in his bill, that, except from what appears to be an account filed in the Orphan’s Court in 1840, he is unable to ascertain the present condition of the estate, and prays that Mrs. Lang be required to state her account as ad-ministratrix. In response to this, she states and presents the account exactly as called for. Yet the master refuses to consider this as any evidence whatever, though he is, in substance, directed so to do by the order of reference, and although the plaintiff stands in Mrs. Lang’s shoes, and is bound by her admissions, until some fraud or mistake is shown. 7 Ala. 582; 1 Freeman’s Ch. 546; 1 Cow. 742; 4 Ala. 64.</p> <p>The court erred in setting aside the deed from Mrs. Lang to the children until fraud was proven; the deed must stand good until the full and final settlement takes place, and the effects handed over to the children; for, until then, it cannot be known what devastavit may take place. 4 Ala. 64-6.</p> <p>The answers of defendants are not evidence, except when they are strictly responsive to the bill; as when a bill was filed against the separate estate of a married woman, to subject it to the payment of a bond given to the complainant as executor, the answer admitted the execution of the bond, but alleged that, since its execution, she had discovered some errors in the account upon which it was given. The court says the effect of the admission cannot be destroyed by these subsequent statements; of these matters, set up in avoidance of a portion of her bond, her answer is not proof. Forrest and wife v. Robinson, 2 Ala. 216; Br. Bank at Huntsville v. Marshall, 4 ib. 60; Cummings v. McCullough, 5 ib. 324; Carpenter v. Dunn, 6 ib. 718; Powell v. Powell, 10 ib. 900; also, 306; lWash. 224; Payne v. Coyle, 1 Munf. 395; Walker v. Miller, 11 Ala. 1067.</p> <p>This question is especially referred to in the decision of this case in the Supreme Court, 14 Ala.; and it is said, this question would arise before the master, that is, how far the exhibits would be proof, and could then be determined upon. Supposing, however, an account furnished would be evidence for the administratrix, and still the exhibit offered would not do. It states, for instance, as her credit, “Amount expended on estate, $31,988 64.” Thisjis not an account, but the conclu sion or result of one. Again: the account or exhibit is scarcely to be credited. Of the sixteen negroes mentioned, whose wages produce $17,282, we find, by the evidence of Lang, that four of them were used for family purposes, so that the account is not true in that particular. Again: by the account filed with the Orphan’s Court by Mrs. Lang, 24th January, 1840, which she swears was a true account, we find, that for two years and nine months, she received for hire only $830 93. Allowing the same rate for the succeeding six years and nine months, ($2,039,) and it would only give $2,869 93. And this, also, invalidates the answer.</p> <p>Again: It is seen that the family all live with Mrs. Lang, who supports and educates them at great expense, and since the filing of the account, it nowhere appears that she has made any charge for this since she filed her account. Again: The answer is invalidated by the allegation, that she made the deed to secure her children against a devastavit, when the proof offered by her own account shows that the estate, at that time, was in her debt. The deed was made 14th June, 1839. The return to the Orphan’s Court, 24th January, 18.40, shows a balance in her favor of $166 40, and yet the deed is said to have been made to protect the heirs against her devastavit.</p> <p>But this proof of devastavit, by the rules of evidence, is thrown upon the defendant. It is the affirmative which she is bound to prove. The answer carefully conceals all facts or circumstances by which the truth of the allegation might be tested. The complainant has no means of proceeding. 2 Daniel’s Oh. Pr. 981, 1496; 3 Phil. Ev. 490; Carpenter v. Devon, 6 Ala. 726.</p> <p>If there has been no competent evidence before the register to sustain the plea of devastavit, then there would exist no obstacle to subject Mrs. Lang’s share to the payment of the claimant’s demand, except it be upon the ground that the deed executed 14th June, 1839, by Mrs. Catharine Lang, conveyed away to her children all her estate. This question, whether the deed could be supported upon the consideration of ‘‘love and affection,” and whether it can be supported by proof of “valuable consideration,” is waived by the Supreme Court. 14 Ala. 721. And they “rest the decree upon the paramount lien of the co-distributees.” That is, the complainant had no lien except • by the filing of his bill; and if, on reference to the master, it is shown by competent proof that Mrs. Lang was indebted to the estate, to an amount greater than her distributive share, the lien of the estate would be regarded as paramount.</p> <p>The question, then, is: have the parties shown that there was a devastavit, or indebtedness of any kind, by Mrs. Lang to ber children? The defendants rely upon tbe exhibits to the answer. The register excluded them, as not responsive, and they fail to offer any other evidence to sustain them, and this is affirmed by the decree of the Chancellor. We maintain the correctness of this decision, and the case is, therefore, before the court upon matters set up in the answer, by way of avoidance, unsustained by evidence. It is said that a former chancellor decided the answers were responsive. This is not admitted; but if it be true, it does not conclude the question, for the Supreme Court, in the case already referred to, at page 722, expressly reserve the'adjudication of the question, as one “which will arise before the register, and may come before the chancellor upon exceptions to the report, and when it has been definitely adjudicated in the primary court, can be here revised.” So that this question is now presented in the very form indicated .by the Supreme Court.</p> <p>If the parties are driven, by the state of the account before the register, to take shelter under the deed, then that question is distinctly presented, and must be adjudicated. It needs no argument to show that the deed founded upon “love and affection” cannot be supported.</p> <p>Can it be supported by the valuable consideration set up in the answer ? To prove a different consideration, is contrary to the rules of law and equity. Murphy v. Trustees, 16 Ala. 94; Gresley’s Eq. Ev. 287. Mrs. Lang makes the deed, and the other defendants claim under it. It has been already shown, that the deed was made 14th June, 1839; that she filed her account with the Orphan’s Court, which is an exhibit to the bill, 24th January, 1841, eighteen months after-wards, showing the estate to be in her debt. Her answer to the bill is, that she admits she filed the said account, “ and she now charges it was a true statement of the receipts and disbursements which had come to her hands at that time,” and both the other answers admit the same thing. Now, if this be true, as already stated, how extraordinary is the statement that the “real consideration for deed made eighteen months prior, was to secure the estate against her devastavit.” Respondent charges, “ that in the management of said estate, acting, as she supposed at the time, for the benefit of said heirs, but, as she is advised and believes, without any authority or warrant of law, as administratrix, she has so acted that she is and was liable for a devastavit of the estate more than the amount of her distributive share.” The statement of the answers in reference to the account filed with the Orphan’s Court, given above, apply, also, to the objection made as to the admissibility of that exhibit before the register.</p>

On the 21st February, 1846, the estate of Charles Hammond was declared insolvent, and on tbe 20th August, 1846, a claim against said estate was filed by Benjamin B. Hogan, the testator of the plaintiff in error, for $4,186TW) predicated, according to the record, on five bills of exchange, drawn by Hammond on Saxon & Smith, in favor of Hogan & Hammond, and by them endorsed to Hogan in settlement of the business of the firm, and remaining unpaid, and another item which is thus…

Tried before the Hon. JOHN Bragg. Trover by Broughton against Andress.

<p>1. A testator, under our statute, can only defeat his heirs at law or distribu-tees by making a distribution of his property; and if any portion of it remain undisposed of by will, the heirs at law or next of kin are entitled to it, not. withstanding it may appear that the testator did not intend that they should succeed to it.</p>

1. In 1881, Rhodes made a full settlement of his accounts as executor; it was so considered and acted on by the parties and the court. In 1832, at the instance of the defendant in error, Emily, by her guardian, Arrington, Rhodes is ordered to pay to the guardian, Arrington, the amount ascertained in his hands. In 1833, Rhodes resigns his executorship, stating he has made a final settlement. This is accepted by the court, and an administrator de bonis non appointed.

Ereor to tbe Circuit Court of Butler. Tried before tbe Hon. E. Pickens. The plaintiffs in error were indicted in the Circuit Court of Butler County for an affray, and on the trial, each of them excepted to the ruling of the court, and two bills of exceptions are found in the record.

Tried before the Hon. Ales. McKiNSTky. The assessors of the city taxes of Mobile made an assessment upon the “ cash capital ” of the plaintiffs in error, “ who are bankers and dealers in exchange,” and returned it as “ merchandize.” The plaintiffs in error objected to this asessment, upon the ground that it was wholly unauthorized, by the facts, and by the law.

<p>Error to the City Court of Mobile.</p> <p>Tried before the Hon. Alex. McKiNSTRY.</p> <p>James O’Riley filed a libel in tbe City Court of Mobile against the Schooner Southron, in which he alleged that, at the instance of the master, the libellant did, within the six months last preceding, work and labor as a shipwright in repairing and rebuilding said schooner, and did furnish materials to the amount of four hundred and fifty-six dollars, and that said work was done in the State of Alabama. Annexed to the libel is a statement of the account, as follows;</p> <p>“ The Schooner Southron and Owners,</p> <p>To James O’Riley, Dr.</p> <p>To eleven months and eight days work and labor done on board said Southron, at the monthly wages of forty dollars per month, - - $456 00”</p> <p>Upon this libel process of seizure was issued, under which the sheriff attached the schooner. James Lombard, the master of the vessel, and Patrick O’Bryan and O. S. Jewett, gave bond conditioned to pay the judgment that should be rendered on said libel, and the vessel was released. Patrick O’Bryan intervened, and claimed the vessel, and, by way of answer, denied that the facts stated in the libel entitled the libellant to relief.</p> <p>Upon the trial the court, holding the libel sufficient, decreed in favor of the libellant the sum of two hundred and seventy-five dollars, and rendered judgment against the stipulators for that amount.</p> <p>The statutes of 1824 and 1836 are to be construed in pari materia, both containing operative -provisions, and forming one system. Richardson v. Cleaveland, 5 P. 252; and the act of 1848 is not intended to repeal either. S. George v. Skates, et al., last term.</p> <p>The account is part of the libel when attached to it, and referred to therein. 5 P. 251.</p> <p>The decree in this case was for more than, by the libel, it appears that there could exist a lien for. Six months work, at $40, would be $240, but he has a decree for $275.</p> <p>The libel must make such a case as will give a lien; as in common law, a declaration must make out a cause of action. Dunlap’s Adm. Prac. 113.</p> <p>The defendant in error submits, that the demurrer to the libel was properly overruled. The libel contains all the allegations necessary to show jurisdiction over the case, as well as over the subject matter; it shows the demand was for labor and materials furnished to a water craft, a schooner, within six months before suit was brought, and within the State of Alabama. Clay’s Dig. 139, §§ 22, 23; ib. 537, § 5. Stewart George v. Skates et al., June Term, 1851.</p> <p>A Court of Admiralty is liberal in permitting amendments. The amendment allowed in this case, was entirely within the discretion of the court to grant. Dunlap’s Adm. Practice, 211.</p> <p>The decree as to the amount should be sustained. The decree shows it was rendered on proof satisfactory to the court. Although a larger sum was claimed, it was properly reduced in the decree, to the amount proved to be due within the statutory limitation of six months. The labor may have been done by-libellant and his servant or apprentice. This court will not presume error.!</p> <p>The decree against the stipulators is correct. The claimant made his claim as owner,'and pleaded in exception to the libel; this.exception seems to have been sustained, and leave given libellant to amend. The motion to continue the cause, was addressed to the discretion of the court, and will not here be reviewed</p> <p>No answer was filed to the libel; on the facts, it was altogether undefended, but proof was made of the debt, and decree of condemnation passed against the vessel. Thereupon, on suggestion that the vessel had been delivered to the claimant on his stipulation, and that the stipulators had bound themselves for the absolute payment of such decree as might be rendered upon the libel, a personal decree against the stipulators was rendered by the court. This proceeding was formal and regular, and no injury has been done the parties in the cause. 5 Por. 251; Wainwright & Twelves v. Sanders, this term.</p>

<p>1. When the court below charges the jury, that, if they believe all the proof, the plaintiff is not entitled to recover, the plaintiff wishing to revise the charge in the Appellate Court, must set out in the bill of exceptions all the evidence upon which it was predicated.</p> <p>2. When the defendant in trover fails to give any account of the manner in which he acquired possession of the slave in controversy, he will be presumed, in the absence of all rebutting proof, to hold from or under the person who is shown to have had the possession for several years next before the defendant acquired it.</p> <p>3. The declarations of one who is in possession of personal property, in disparagement of his own title, or repudiating title in himself, are competent evi-denee against himself, or against a subsequent purchaser from him, or one claiming to hold under him.</p> <p>4. The declaration of one in possession of a slave, made at the time of hiring her to the witness, “that the slave belonged to the plaiutiffs, who were minors and orphans,” is admissible evidence for the plaintiffs, in an action of trover subsequently instituted by them for her conversion against a third person, as showiug that he was but the plaintiffs’ bailee, and held the slave in that capacity, in subordination to their title, and not adversely to them.</p>

Tried before the Hon. Alex. MoKiNSTRY. The declaration, which is for malicious prosecution, contains two counts.

Tried before the Hon. John E. Moore. Boazman sued Callahan before a justice of the peace, on a promissory note for the payment of $48TV3, and obtained judgment against him for $50. Callahan took the case to the County Court by certiorari, and on a trial there, a verdict and judgment was rendered against him. On the trial, a bill of exceptions was signed and sealed by the judge of that court, and a writ of error was sued by Callahan to the Circuit Court.

Tried before the Hon. J. W. LbsesNE. The complainant, Eliza Larkins, filed her original bill to reform a deed of gift, which was executed and drawn by her father, James Maul, on the ground that it was his intention to settle certain slaves, specified in said deed, to her sole and separate use, free from the debts of her husband, which intention was not expressed in the deed, in consequence of the ignorance and want of skill in the draftsman.

<p>1. In scire facias at common law, the plaintiff may treat the sci.fa. as a writ simply, and declare upon it, or he may make it stand in the place of both writ and declaration; but in the latter case, the writ must contain the averments which are necessary to make a declaration good.</p> <p>2. This rule of the common law is not at all affected by the statute of this State, respecting judgments «is;, and scire facias thereon, against a defaulting witness in a civil case.</p> <p>8. A sci.fa. against a defaulting witness should set out the subpana, either verbatim or substantially, and aver that it was served. It should also contain an averment showing at what day and term the witness was bound to appeal-, or it is fatally defective.</p> <p>4. Jf there is no declaration, or if the declaration is fatally defective, for the want of an indispensable averment, the defendant may demur, move in arrest of judgment, or assign error.</p> <p>6. A judgment by nil dicit cannot cure a defective declaration; it only admits that the party has been properly brought into court.</p> <p>6. Where judgment by nil dicit is rendered on a scire facias against a defaulting witness, the judgment will be reversed on error assigned in the Appellate Court, if the scire facias is fatally defective for the want of necessary aver" ments.</p>

<p>1. A party is incompetent to execute process in bis own favor.</p> <p>2. But mere identity of name will not authorize the court to infer, in the absence of a direct allegation in the pleadings, that the plaintiff in the writ and the deputy constable by whom it was executed are the same person.</p> <p>3. In trespass against defendant for taking plaintiff’s horse, defendant pleaded justification under legal process, to which plaintiff replied specially that at the time of the levy he had a family and but the one horse levied on, which was protected by law from levy and sale. Held,</p> <p>That the replication admitted the validity of the writ and the capacity of the person by whom it was levied to execute it, and only raised the question whether the horse was subject to the levy; and though the proof showed that the plaintiff in the writ was the person who executed it, and the court charged the jury that the levy was valid though made by the plaintiff in the writ, yet it was error without injury, and the judgment would not be reversed.</p> <p>.4. The statute of this State, (Clay’s Digest 210, § 47,) which exempts from levy and sale one horse for the use of every family, can be invoked only by a person who resides in this State, and has a family.</p> <p>5. The statute of Mississippi which exempts one horse from levy and sale is- a local act, and can only protect the property exempted so long as it remains within the limits of that State.</p>

Heard before the Hon. 3). Gr. Ligoh. This bill was filed by Rowland Bryant, tbe plaintiff in error, against William Young, Fleming Young and Thomas Hall. Its object is, a discovery of effects, and to subject to tbe satisfaction of complainant’s judgment at law against William Young, certain real and personal property alleged to bave been fraudulently conveyed by bim to tbe other defendants, for the purpose of bindering, delaying and defrauding his creditors.

Clair. John Roberson made bis will on tbe 1st day of August, 1844, and died. James Roberson and John P. Roberson were named as executors, and at the January term, 1846, of the Orphans’ Court of St. Glair, they produced and proved the will, and took out letters testamentary thereon. By the will, specific legacies are given to his daughter, Nancy Maddin, and his grand-daughter, Catharine Allen, as well as to his sons, -Tames, Willis, John P. and Robert 1?.

Eeeor to the Circuit Court of Dallas. Tried before tbe Hon. E. Pickens. This was a trial of tbe right of property to certain cotton, on which an execution bad been levied in favor of tbe defendant in error against Isam Bilberry, and which was claimed by Henry Bilberry, tbe intestate of tbe plaintiff in error.

Heard before Hon. W. W. MasoN. This bill was filed by Paulding, against Watson and Eid-son, to enjoin a judgment at law recovered by them against the complainant, on a note which he alleges was founded on a gaming consideration. The bill was filed in June, 1845, and the note on which the judgment was founded, was for $1080, dated September 17, 1886, payable January 1, 1837, to said Eidson, or bearer, and by him transferred to said Watson.

<p>1. Justices of the peace had no admiralty jurisdiction previous to the act of 1S36_ (Olay’s Digest, 139.)</p> <p>3. The act of 1841, which was designed to remove all doubts as to the construction of the act of 1836, confers upon justices of the peace the same admiralty . jurisdiction when the sum claimed is less than fifty dollars, that was given by the act of 1836 to the Circuit and County Courts when the sum claimed was over fifty dollars; and that jurisdiction is confined to demands which arise from “ furnishing materials, labor or stores, for the use of any steamboat ox-other water-craft.”</p> <p>8. Debts or demands for dockage must be collected by common law process against the debtor, and not by admiralty process against the rein, unless such debts can bo enforced against the vessels in the Admiralty Courts of the United States.</p>

Ehror to tbe Chancery Court of Pickens. Tried before the Hon. W. W. MasoN. This was a bill filed by the defendant in error, Wilson, against William H. O’Neal, Eobt.

Tried before tbe Hou. Jsro. Gill Shorter. Tbe plaintiffs brought ejectment against tbe defendant to recover possession of lot No. 5, in tbe city of Montgomery, claiming title as beirs at law of Mrs. Jane A. E. McBryde, deceased. Tbe defendant set up title under a deed of bargain and sale, made by Edward A. McBryde and tbe said Jane A. E. Brydc, Ms wife, to one Homer Blackman, under whom tbe defendant bolds tbe premises by purchase.

<p>1. If a wound is inflicted not dangerous iu itself, and the death which ensues was evidently occasioned by the grossly erroneous treatment of it, the original author will not be accountable.</p> <p>2. But if the wound was mortal or dangerous, the person who inflicted it cannot shelter himself under the plea of erroneous treatment.</p> <p>3. The evidence was conflicting, as to whether the deceased came to his death from the effects of a wound inflicted by the prisoner, or from the improper treatment of it by the attending physician in sewing it up. The prisoner’s counsel requested the court to charge that if the wound was not mortal, and it clearly appeared that the deceased came to his death from the erroneous treatment, and not from the wound, they must acquit the prisoner. This charge the court gave, with this qualification, “ that if the ill treatment relied on was the sewing np of the wound, the defendant would not be excused if otherwise guilty.” Held: '</p> <p>That the legal proposition asserted by the qualification to the charge was erroneous. (Goldthwaite, J., dissenting.)</p>

<p>X. An executor is bound to indudo in his inventory of assets a debt due from himself to Ms testator.</p> <p>2. Since the passage of the acts of 1848 and 1850, the husband is entitled, as income, to the money accruing during coverture from the hire of the -wife’s slaves and the 1’ent of ¡her land.</p> <p>S. The husband, -who is executor of his -wife, may bc-compelled to settle his trusteeship of her separate estate in the Court of Probate; and on this settlement, he should state with that court a full account of all moneys or other property of the wife, received by him as corpus or capital of her estate, and not as income, and credit himself with all proper payments or disbmvements. made by him in her behalf as trustee.</p> <p>4. Under the act of 1850, the husband becomes tenant for the life of the wife of the rents and profits of her estate, and, like any other tenant for life, he is entitled to emblements, that is, the crop growing' or matured, whether gathered or not-, at the termination of the life estate.</p>

Tried before the Hon. L. GibboNS. This suit was commenced by Burden before a justice of the peace, to recover damages from the defendants for diverting the water from the plaintiff’s mill, the damages claimed in the warrant being less than twenty dollars. Judgment was rendered in favor of the plaintiff, and the defendants removed the case, by appeal, into the Circuit Court.

Tbe will of Isaac McElroy, deceased, was propounded for probate, in tbe Court of Probate of Sumter, by Isaac E. Mc-Elroy, tbe executor, wbo was also a son of tbe testator and bis principal legatee. Held: that his admissions, made after parting with the note sued on, cannot be given in evidence to defeat the beneficial plaintiff. Head, use, &c. v. Shearer, 9 Ala. 791.

Eeroe to tbe City Court of Mobile. Tried before the Hon. Alex. McKinstry. Smith sued Yan Eppes and one Stall by warrant before a justice of the peace, on an account for work and labor done, to the value of $23. The warrant was executed on both defendants, the case was tried, and judgment rendered for the defendants.

Tried before the Hon. Alex. MoEjkstry. An action of detinue was brought by the defendant in error against one Hutchinson. The writ and- declaration are filed against Hutchinson alone, and the pleas are in his name only. The judgment entry is as follows, viz: “ Martha McAdams, Ex. vs. James E. Hutchinson, Sheriff of Mobile .County. This day came the parties, by their atterneys, and also came Greo.

This was a contest before the Court of Probate, concerning the validity of a certain claim filed by Frederic Boss, the plaintiff in error, against the estate of Andrew Burnham, deceased, which had been duly declared insolvent, and of which said Ross was administrator de bonis non. The contest was carried on, under the statute, between said Ross as plaintiff, and himself as administrator de bonis non as defendant, defending in behalf of James Pearson, an objecting creditor.

Tried before the Hon. John Bragg. 1. Consent cannot give jurisdiction ; but where a court has jurisdiction of a matter, the parties may agree to a re-hearing or new trial. Such an agreement is binding if it is on good consideration. Ransom v. Peters, 2 Ala. 647; Nabors v. Camp, 14 Ala. 460. 2. A release of a judgment founded on good consideration, is a discharge of it, though not under seal. Wentz y. De Haven, 1 S. & R. 312; Whitehill v. Wilson, 3 Penn.

Heard before the Hon. W. W. Mason-. This was a bill filed bjr Grier against Campbell, in the Chancery Court of Macon county, charging that, the plaintiff being a citizen of the State of Georgia, Campbell sued out an attachment against him, on the 2d November, 1844, for the recovery of $232XIW, which writ was levied on the 11th March, 1845, on one brass candlestick by the sheriff of Macon county; that, on the 19th October, 1846, judgment was rendered on said writ of…

Tried before the Hon. A. B. Moore. On the 25th August, 1849, George R. Evans sued out a writ of fi. fa. against Obediah Lamar, on a judgment in his favor in the County Court of Autauga, for the sum of $632,06, which came to the hands of the sheriff of that county, on the 29th August, 1849, and was returned by him endorsed “ not received in time to make the money,” on the 13th September, 1849.

On tbe 17th January 1845, a decree was rendered by the Court of Probate of Benton County, against William C. Price, as administrator of William Burns, in favor of James L. Simmons, as administrator de bonis non of said Burns, for the sum of $1982 69.

Eiatoit to the Circuit Court of Benton. Tried before the lion. L. P. Walker. This suit was commenced by attachment, in the mime of Keith & Weir for the use of Eliza Jane Tate, against the plaintiff in error. The affidavit for the attachment was made by William M. Weir, as agent for Mrs. Tate : and on the trial, the plaintiff offered said Weir as a witness.

This was a proceeding against tbe plaintiff in error, as the putative father of a bastard child. It appears that tbe mother, Lamantha Music, went before a justice of tbe peace for Sbelby county, on tbe 7th day'of May, 1850, and made oath that she was then with child; that it was likely to be born a bastard, and that James Seale, the present plaintiff in error, was tbe father of said child.

Error, to tbe Circuit Court of Mobile. Tried before tbe 1-Ion. L. GibboNS. George Huggins was duly elected sheriff of Mobile County on tbe first Monday in August, 1846. On tbe lltb day of tbat month be was duly qualified, and entered upon tbe discharge of tbe duties of bis office, having executed bis official bond, with tbe defendants in error as bis securities.

On the 18th of August, 1849, the defendants in error, who are the heirs at law of John Ferrell, deceased, moved the Court of Probate to state an account against the plaintiff in error, who was their guardian.

Tried before the Hon. L. GtbboNS. 1. The plaintiff does not make the defendant liis witness, by filing interrogatories to him under the statute. He does not represent him as worthy of belief, but only hopes that, notwithstanding bis interest, the truth'may be extracted from him. 2. But even if defendant is to be regarded as plaintiff’s witness, still the testimony of Moulton was improperly rejected.

Clair. John Collins, administrator de bonis non with the will annexed of Joel Chandler, deceased, appeared before the Court of Probate of St. Clair county, on tbe second Monday in August, 1850, and tiled his accounts' and vouchers for a settlement of said estate, so far as the same had been adminis-. tered by him; whereupon the accounts and vouchers were examined, audited, and reported for allowance at a special term of said court, to be held on the fourth Monday in…

Erbok to tbo Chancery Court of Chambers. Heard before the lion. W. W. MASON. This was a bill for a specific performance, by tbe defendant in error against tbe plaintiff in error.

The plaintiff in error brought an action of assumpsit against the defendant, in the Circuit Court of Butler. The declaration contains two counts. The first avers, that the defendant, in 1836, being an attorney and counsellor at law, collected, as such, a sum of money for the plaintiff, from one Davis, which he has failed and refused to pay over.

Tried before tbe Hon. Eobert Dougherty. This was an action of slander, brought by tbe plaintiff against tbe defendants in error, for words spoken. Tbe court below sustained a demurrer to the declaration, and this is now assigned for error.

Heard before the Hon. VV. W. MasoN. Rankin, Duryee & Co. et al., wbo were mercantile firms doing business mostly in New York, filed tbeir bill in equity against the defendants in error, to obtain the aid of chancery in the collection of their several debts against the firm of E. & J. W. Ransom, which was composed of Elijah Ransom and Joel W. Ransom, and against said Elijah Ransom individually.

Tried before the Hon. George Goldtuwaite. This was an action of Debt, by Beck as surviving obligee, on a bond executed by Pryor and others, as securities for costs in a certain suit instituted by Margaret Batchelor against Pharr & Beck. The condition of the bond is set out verbatim in the opinion of the court, and also the breach assigned in the declaration.

Tried before the Hon. George Goldthwaite. Assumpsit, by Foreman, as endorsee of Daniel West, against the plaintiff in error, on a written order, in the following words: “ Messrs. Crook & Moore, attys. Please pay Daniel West two hundred and ninety-three dollars and seventy-five cents, and all interest on the same, the demand I have against the estate of David Yarbrough, deceased. Sept. 11. 1843.

Tried before the Hon. L. GibboNS. Stetson & Co. sued out a writ of attachment against Gold-sticker for $557tW, as stated in the writ. The defendant below filed his plea in abatement, setting out, without craving oyer, the affidavit, the bond, and attachment.

On tlie 25th April, 1852, Clara Chighizola filed her petition in the Court of Probate, in behalf of herself individually, and as guardian of Anna Chighizola, Louisa Chighizola and John Baptiste Chighizola, who were her children and minors, propounding her own interest, and that of her said children, in the estate of her late husband, G-oakomo Chighizola, under his last will and testament; and praying for a citation against Charles Le Baron, who is alleged to have qualified…

Tried before the Hon. JOHN Bragg. This was a trial of the right of property, under the statute, to a certain slave, between Greyer, as trustee, and the Branch Bank at Mobile. Held: that such an interest of the husband, in a joint use created by a marriage settlement of the wife’s property, could not be subjected to his debts. The trusts of the deed of settlement in this case are precisely such as those contained in the settlement in that case.

Tried before tbe Eton. E. PlCKENS. Tbe facts of tbis case all appear from tbe opinion. 1. In an action on tbe bond, for tbe wrongful suing out of tbe writ of ne exeat, tbe plaintiff is not bound to sbow malice, nor can tbe defendant rely, by way of defence, upon probable cause. Petit v. Mercer, 8 B. Monroe’s Rep., 51; Cox v. Taylor, 10 ib. 17. 2.

Tried before tbe Hon. Robert Dougherty. This was an action of Trover, by tbe plaintiff in error against Daniel Rayfield, Elisha C. Wilson, Jacob Richards and George W. Johnson, for the conversion of two slaves, Isabella and Mary. Tbe suit was discontinued as to Wilson, upon whom tbe writ was not served. There was a verdict of not guilty as to Richards and Johnson, and a verdict for $447 against Bayfield.

Tried before the Hon. E. PiCKENS. Benj. L. Goodman, administrator of John Grady, deceased, sued out an attachment against the estate of Joel Hammond, and a writ of garnishment against Isaac Nolen, as the debtor of Hammond. Nolen appeared to the garnishment, and answered that he made a note for $140 to Hammond, but before the garnishment in this case was either issued or served, one Henderson Allen informed garnishee that he was the holder and owner of the note.

Tried before the Hon. Bobert Dougherty. Ejectment by Stevens against King. It appears from the bill of exceptions, that the plaintiff relied on a deed from the sheriff, the land having been sold under execution against Thomas Jennings, Jr., on a judgment rendered in the Circuit Court in 1832, and purchased by plaintiff.

Tried before the Hon. J. W. LesesNe. This was a bill filed by Wm. Miller and the other complainants as the heirs at law and next of lcin of Simon Miller, deceased.

Eeroe to tbe Chancery Court of Mobile. Heard before tbe Hon. J. W. Leseske. .•Tbe original bill in tbis ease was filed by Tbos. Gr. Held: of the partnership property, and for the partnership account, and not individually, certain lands and tenements, viz: a lot in the city of Mobile on the south side of St. Francis street, another lot fronting north on St. Anthony street, and a tract of land in Sumter 'county, known as the “Gayle plantation;” that all of said lands…

<p>ERROR to tbe Circuit Court of Lowndes.</p> <p>Tried before the Hon. E. PickeNS.</p>

Tried before the Hon. L. GtbboNS. B. 0. Caldwell brought an action of detinue against D. T. Sbomo for the recovery of two slaves, named Edgar and Abram. On the trial of the cause in the court below, the facts of the case were agreed on by the parties, and are these: On the 15th day of November, 1829, David Tate made a deed of gift to his sister, Bosanna Shomo, wife of Joseph Shomo, of certain slaves, including the two before named.

Eiieor to the Circuit Court of Mobile. Tried before the Hon. L. GtbboNS. EjeotmeNT by Lucy St. Cyre against the plaintiff in error, to recover a certain lot, situated in the city of Mobile, which the plaintiff claimed as the sister and heir at law of one Cyrus Evans, a free man of color.

ApphaIj to the Circuit Court of Barbour. Tried before the Hon. JonisT GriLB Shorter. . Plaintiff and defendant both deduce title from Jones. A title was outstanding adverse to Jones, at the time when he conveyed to Shipman, and adverse possession was held by bis grantee, or those holding under him. Shipman had never taken possession under Lis deed; for Baxter was in peaceable possession, bolding adversely to bim.

Tried before the Hon. TURNER Eeavis. This was an action of trover, brought by the defendants in error against the plaintiff, for the… Held: that the grandsons took the estate in fee, but that the limitation over was valid as an executory devise. In that case, the fee simple estate was created by the terms of the will; in this, by operation of the statute. In both, the condition is the same; and in this, the limitation is defeated by the performance of the condition.

Tried before the Hon. Jno. Gill Shorter. Amand P. Pfister applied to the Circuit Court of Montgomery, for a mandamus against Joel Riggs, Comptroller of Public Accounts of the State of Alabama, commanding him to draw his warrant on the State Treasurer, in favor of said Pfister, for fifty dollars, the amount claimed by said Pfister as his quarter salary as Quarter Master General of the State, for the quarter ending April 20, 1852.

Ebbob, to the Circuit Court of Mobile. Tried before the Hon. LymaN GibboNS. Moses Copeland commenced a suit, by attachment, before a justice of the peace, against Mary Flowers, and recovered judgment for $50.

This was an issue under the act of 1843, to try the validity of a claim filed by the defendant in error against the estate of Andrew Burnham, deceased, which had been regularly declared insolvent, and of which the plaintiff in error had been appointed administrator cle bonis non.

Tried before the Hon. Robert Dougherty. This was a joint action against several defendants. It was erroneous for the justice to render two distinct judgments; one in favor of Davis against ¡John J. and Mary E. Magee on the 2oth May, 1850, and the other in favor of Sarah Goss against David Davis, on the 10th August, 1850. True v. Clark, 3 Bibb, 295; Edwards v. Lewis, 18 Ala. 494; Prewitt v. Caruthers, 7 How. Miss. 304; 6 Black. 485.

<p>1. where a tort is committed by the talcing at ene time of several chattels, the property of one person and in his possession at the time, it gives him but one cause of action, and he cannot be allowed to split it up and bring separate suits for separate articles, although he was possessed of some as trustee, and of others in his own right.</p> <p>2. And if the plaintiff in such case, first declaring as trustee, recovers in trespass for the taking of the goods which belonged to him as trustee, and brings another action for the goods which belonged to him individually, the record of the former judgment sustains the plea of a former recovery, and bars a second recovery.</p>

Ereor to tbe Circuit Court of Mobile. Tried before tbe Hon. L. GibbONS. 1. No formal submission, whether written or verbal, is necessary. Matters may be referred to arbitration in any manner that expresses the agreement of the parties to be bound by the award. Russell on Arbitration, 92; 9 Ala. 755; 1 ib. 278. In this case, the letter of the defendant to his son contained ample authority to him to refer the matters in controversy to arbitration. 8 Barn. & Cress. 16. 2.

Eeros, to the Circuit Court of Sumter. Tried before the Hon. TueNee Reavis. Marshall filed his petition for a supersedeas of an execution, issued on a judgment recovered against him by Caudler in the Circuit Court of Sumter.

Tried before tbe Hon. John D. Phelan. Tbis was an action on tbe case, by Greenwood against Seay, to recover damages for tbe wrongful and vexatious suing out of sundry attachments by Seay against Greenwood.

<p>1. The assignment of the note or bond which a mortgage is intended to secure, unless there is some contract to the contrary, is an equitable assignment of the mortgage; and the assignee of the note or bond may use the name of the mortgagee, to enforce the mortgage at law.</p> <p>2. But if the mortgage itself is assigned in proper form, the legal title of the mortgagee passes to his assignee, and in any proceeding at law to enfoi’co the mortgage the latter must use his own name.</p> <p>3. If the mortgage is of land, there must he a deed from the mortgagee to the assignee, to convey the legal title to the premises, either on a separate paper, or endorsed on the mortgage with suitable words to convey the thmg itself.</p> <p>4. But if the mortgage js of a personal chattel, the legal title will pass by the mortgagee’s assignment of “all right, title and interest, in and to the within mortgage,” endorsed upon the mortgage itself; and the assignee must sue in his own name to recover the chattel.</p>

Tried before tbe Hon. ¥m. R. Smith. This was an action of DETINUE, brought by tbe plaintiffs in error for tbe recovery of certain slaves. To show title in themselves, tbe plaintiffs offered to introduce a certified copy of a deed, which tbe court, upon the objection of tbe defendant, excluded. Tbe plaintiffs excepted to tbe ruling of tbe court, and tendered their bill of exceptions, which was signed and sealed by tbe presiding judge; and tbe plaintiffs then took a non-suit.

<p>1. In the absence of statutory regulations the father is under no legal obligation to support his illegitimate child; the statute prescribes the only legal mode by 'which this support can be obtained.</p> <p>2. A bill filed by an infant bastard by its uext friend, alleging that the defendant was its father, and that he, to avoid the statutory liability for its support, had removed beyond the jurisdiction of the State, leaving property, out of which the bill prays that provision may be made for complainant’s support, is without equity.</p>

Heard before tbe Hon. J. W. LesesNE. John B. Lepretre exhibited his original bill against Miguel D. Eslava, and Adrian S. Lumie and Ovid Mazan ge, guardians of Louise Eslava, wife of said Miguel, setting forth, that on the 10th day of September, 1835, M. D. Eslava and Louise his wife, being indebted to him in the sum of $67,-776Ty¥, payable at various times, and in various amounts, as set forth in said bill, made to him a mortgage of an interest of three-fourths in a certain…

ERROR, to tbe Circuit Court of Lowndes. Tried before tbe Hon. E. Pickens. Detiuue by Steele against Adams, for tbe recovery of a slave wbicb tbe plaintiff claimed under a mortgage executed to bim by one Borland, and wbicb tbe defendant claimed through a purchaser at sheriff’s sale under execution against Borland.

Tried before the Hon. Thomas A. Walker. 1. The deed to Crow & Moore is void for uncertainty. Humble v. Clover, 1 Orolce, Eliz. 328; Allison v. Hampton, 11 Humphrey, 71; Revis v. Lamme & Bro., 2 Mo. 207; Hudson v. Cayle, 10 Ala. 116. 2. The title to land must be by deed or writing; hence it must all be in' writing, not part writing and the rest parol i proving the Christian names of these grantees, Crow & Moore, would be showing a title to land by parol evidence.

<p>EftROR to tbe Circuit Court of Mariou.</p> <p>Tried before tbe Hon. Turner Reavis.</p>

Heard before the Hon. J. W. Lesesne. Mrs. Ann M. Linn filed this bill against the defendants in error, alleging that they were in possession of, and claimed title to a certain lot situated in the city of Montgomery, of which her deceased husband had been seized in fee during their coverture, and which be had aliened to some person unknown to complainant; that valuable improvements had been made on said lot since said alienation, and that her dower interest therein could not…

Tried before tbe Hon. Geo. D. Shortridge. Detinue by tbe plaintiff in error, Mary C. Frierson, against tbe executor of ber deceased busband, Robert Frierson, for tbe recovery of four slaves, wbicb tbe plaintiff claimed under tbe will of ber father, Tbomas McRae, as- ber separate estate.

Eebor to the Circuit Court of Lauderdale. Tried before the Hon. S. C. Posey. King & Devitt recovered a judgment in the Circuit Court of Lauderdale, against Matthew C. Galloway, upon which process of garnishment was afterwards issued, and Thomas L. Drane was summoned to appear before said court, at its next term, to be held on the first Monday after the fourth Monday in March, 1849, and answer as to his indebtedness to Galloway.

Ezekiel Pick-ens, Judge of tbe Second Judicial Circuit. made application to tbe Hon. E. Pickens for a certiorari, to remove into tbe Circuit Court certain proceedings bad by tbe Commissioners’ Court of Dallas in tbe establishment of a road. Tbe petition alleged tbat tbe road, as established, ran two miles through tbe petitioner’s land, and tbat tbe thirty days’ notice required by tbe statute bad not been given previous to tbe order establishing it.

<p>ERROR to the Circuit Court of Benton.</p> <p>Tried before the Hon. L. P. Walker.</p> <p>Assumpsit by Crow against Hudson, to recover tbe proceeds of a note on one "Williams, wbicb plaintiff bad placed in defendant’s bands for collection. Tbe defendant’s receipt for tbe note was read in evidence on tbe trial, by wbicb be promised to account for tbe note when tbe plaintiff paid bim $300. It was shown, that tbe defendant recovered a judgment on tbe note, in tbe County Court of Benton, in tbe name of tbe payee, for tbe use of bimself; that an execution was issued on this judgment, wbicb was levied on eighteen bales of cotton ; that said cotton was sold by tbe sheriff, under said execution, and was bid off by tbe defendant, some at 6| cents per pound, and tbe rest at 5£ cents; that tbe cotton, at tbe time of tbe sale, weighed about 450 lbs. per bale, at which weight tbe proceeds of sale would have amounted to $479 25; and that the sheriff, in settling with tbe defendant, and in making bis return, estimated the cotton at tbe weight put upon it by tbe commission merchants in Wetumpka, thus making tbe proceeds only amount to $319 77.</p> <p>Tbe court charged tbe jury, that tbe sheriff’s return on tbe execution was conclusive, in this suit, and between these parties, as to tbe amount for wbicb tbe cotton was sold at tbe execution sale. Tbe plaintiff excepted to this charge, and be now assigns it for error.</p> <p>Tbe charge of tbe court is erroneous. Crow is not concluded by the sheriff’s return on tbe execution, because be is not a party to it, nor to tbe record. At most, tbe return is but a record, and strangers are not estopped by a record. St. John v. O’Connell, 7 Porter, 476, and cases there cited; Blann v. Cbambless, 9 ib. 412. As to who are parties, see 1 Green-leaf on Evidence, §§ 523 to 528.</p> <p>1. Tbe return of a sheriff cannot be impeached collaterally. He is a sworn public officer, to whom tbe law gives credit. Crafts v. Dexter, 8 Ala. 767; Clark v. Garey, 11 ib. 98; Governor, use &c. v. Bancroft, 16 ib. 605.</p> <p>2. Crow, in this action, claims under tbe judgment and execution. Hudson, Crow’s agent, bad tbe right to rely upon tbe sheriff’s return, as showing the true amount for which the cotton sold; and, if that return is false, Crow has his remedy directly against the sheriff, but he cannot be allowed to falsify his return, for the purpose of charging Hudson. Phil, on Ev. C. & H.’s Notes, 1087-8; 4 Ohio R. 155; Bean v. Parker, 17 Mass. 591; 1 Litt. 16; 18 "Vermont, 67; 6 N. Hamp. 393.</p> <p>Did not Crow and Hudson sustain to each other the relation of bailor and bailee ? and if so, are they not concluded by the same evidence ? See Hare v. Puller, 7 Ala. 717, and cases there cited.</p>

<p>1. In scire facias against a defaulting witness, where no declaration is filed on the return of the wit, the writ itself must show, by positive averment, that a subpcena had been issued and served, and then set out the judgment nisi in substance; the writ is insufficient if it only sets out the judgment nisi, which recites that the plaintiff appeared and suggested to the court that a subpcena had been issued and returned executed.</p>

Tried before the Hon. Thomas A. Walker. This was a summary proceeding by motion, made at the September term, 1850, of the Circuit Court of Tuskaloosa, against the plaintiff in error, as sheriff of Madison county, for failing to pay over money collected by him on an execution, which issued from the County Court of Tuskaloosa before its abolition, on a judgment previously rendered in said court, in favor of the Bank against Joseph Oloyd, Geo. W. Drake and Thomas McCrary.

Tried before tbe Hon. L. P. Walker. COVENANT by Holcombe against Ramey, fox a breach of tbe following contract: “A contract, made this 2d day of July, 1844, between WiHiam Ramey and Benjamin Holcombe; First, tbe said Benjamin Holcombe undertakes to feed and have attended to 'tbe back horses of tbe said Ramey, for a term of time to expire tbe 1st July, 1846, at tbe price and rate of one hundred and fifty dollars per year; and tbe said Holcombe binds himself to treat tbe said…

<p>Error to the Circuit Court of Wilcox.</p> <p>Tried before tbe Hon. E. PickeNS.</p>

<p>Error to the Chancery Court of Mobile.</p> <p>Heard before tbe Hon. J. W. LesesNE.</p>

<p>1. In a claim suit uuder the statute, although the claimant cannot defeat the execution by interposing the title of a third person, yet where he himself has an undivided interest in the property, as where it belongs to him and a third person, a stranger to the suit, he may interpose his title, and thereby defeat the execution.</p>

Tried before tbe Hon. Samuel Chapman. Tbe Union Bank of Tennessee obtained a judgment, in the Circuit Court of Limestone, against Nathaniel Hancock and Donald Campbell, on which process of garnishment issued, and the plaintiff in error was summoned as garnishee.

Ereor to the Circuit Court of Mobile. Tried before the Hon. L. GibboNS. The statement of the cause of action in this case, which was filed in the Circuit Court, is in these words : “ This case is brought into this court by an appeal, on part of defendant, from the judgment of C. C. Langdon, Mayor of the city of Mobile, and ex officio justice of the peace in and for said county, in favor of the Mayor, Aldermen and Common Council of the city of Mobile against the defendant.

<p>ERROR to tbe Circuit Court of Mobile.</p> <p>Tried before tbe Hon. L. GibboNS.</p>

Heard before tbe Hon. D. Gr. LlGON. This bill was filed by the plaintiff in error, as the administrator of Samuel Betts, deceased, to recover of the defendant in error a legacy, which, it charges, was bequeathed to said Betts by his son, Samuel Betts, jr., who resided and died in the island of Cuba.

Tried before the Hon. George Goldthwaite. This was the trial of the right of property to a slave named Eeuben, claimed by the plaintiff in error, Taylor, after he had been levied on as the property of John Chandler, to satisfy an execution in favor of thé Bank.

Eeror to the Circuit Court of Autauga. Tried before the Hon. A. B. Moore. Assumpsit, by E. S. Dargan against A. C. Love. 1. Tbe assignor of a cbose in action, is an incompetent witness for the plaintiff. 2 Sup. U. S. Digest, 974, §§ 381, 382; Saltmarsh v. Smith, at January term, 1852; 8 Ala., 846. 2. Crawford is interested in the recovery, and therefore incompetent.

<p>1. A deoreo pro confesso cannot be rendered against a defendant who has not been seryed with process.</p> <p>2. A defendant against whom a decree pro confesso has been regularly rendered, has no right, except by consent or by leave of the court, to file an answer after the master has made bis report upon a reference to him to take an account.</p>

Ebeor to the Court of Probate of Baldwin. Tbe last will and testament of John E. Stapleton, deceased, was admitted to probate on tbe 13th November, 1849, on tte application of tbe executor, without notice to tbe widorL She afterwards filed her petition in tbe Court of Prob|j® propounding her interest, and praying to be made a party to the record. The prayer of her petition was granted, and she now sues out a writ of error to reverse the decree of the Court of Probate.

<p>Error to the Circuit Court of Payette.</p> <p>Tried before the Hon. WM. R. Smith.</p>

Heard before the Hon. J. W. Leseshe. This was a bill filed by the heirs of Henry S. Atwood, alleging that, on the third day of August, 1843, said Atwood executed his last will and testament, a copy… Held: that the constitution and laws of this State declare a distinct policy, which is not only against the increase of free negroes, but against the emancipation of slaves.

Tried before the Hon. Thomas A. Walker. MOTION to set- aside the sale of lands, made under execution by Sublett, as sheriff of Benton county. The plaintiffs in the motion were Meredith P. Henderson, in right of his wife Elizabeth A., formerly Elizabeth A. Lindsay, and Flora E. Lindsay and Wm. W. Lindsay, minors, by said Henderson as their next friend; and the defendants were the sheriff, the purchaser and the plaintiffs in the several executions.

Heard before the Hon. W. W. MasoN.- The bill in this case was filed by James Brantley, the de-fenclant in error, against Larkin R. Grunn, the plaintiff in error.

Tried before tbe Hon. N. Cooic. For tbe sufficiency of tbe declaration, see 2 Chitty’s- Pleading, 371 to 375. That there is no misjoinder of counts, see Church v. Munford, 11 Johns. B. 479 ; Jones y. Conway, 4 Teates, 109 ; 1 Chitty’s Pleading, 201, note 1.

Tried before the Hon. George Goldthwaite. MOTION by the plaintiff in error to quash an execution, and set aside a sale of land made under it b}' the sheriff. The land was proved to be worth §1000, and was purchased at the sale, by the attorney of the plaintiff in execution, for §6. The sale should have been set aside.

Tried before the Hon, George Goldthwaite. The plaintiff in error brought assumpsit against the defendant, to recover five hundred dollars-per annum for two year’s services as physician of the penitentiary, the defendant being lessee of that institution during the whole period for which the plaintiff was elected physician. The declaration contains three counts, two of them special, and the third, general indebitatus assumpsit.

This was an application by the defendant in error for a mandamus against the Commissioners’ Court of Tallapoosa, to compel them to levy a tax under the act of 1843, (Pamphlet Acts, 134,) to discharge the liability incurred by the relator, wbo was one of tbe commissioners appointed under a previous act of tbe Legislature to contract for and superintend tbe erection of a court-bouse and jail in Tallapoosa.

<p>1. The statute imposing a forfeiture on a defaulting ■witness (Olay’s Digest, 599, § 21) of one hundred dollars, does not give the party summoning the witness any right to this sum, by way of satisfaction for the injury which'he may have sustained; but it is imposed as a. puuishiheut upon the delinquent, for his disobedience to the process of the court, and is bestowed gratuitously as matter of good policy, upon the party summoning him.</p> <p>2. A defaulting witness may excuse himself, by showing that, in failing to attend, he was not guilty either of negligence or wilful disobedience; and this should be the limit of the power of the courts below in allowing excuses.</p> <p>3. Where the witness appeared in the court below, and rendered his excuse upon scire facias, and the bill of exceptions states that he “ had been duly subpoenaed,” it is not necessary that the subpoena should appear in the record, to enable the Appellate Court to consider the errors assigned.</p>

Tried before the Hon. Ezekiel PickeNS. TRESPASS ‘by tbe plaintiff in error against Weathers, Bur-son and Pricket. The bill of exceptions shows that a charge of felony was preferred against Sasnett and one Kirkland; whereon the preliminary proceedings were had against them before three justices of the peáce, and they were bound over to appear at the next term of the Circuit Court; but the grand jury refused to find a true bill against them.

Tried before the Hon. Bobert Dougherty. The case made by the record is this: McClellan lent a horse to one Hall, who exchanged it with Oliver, without the consent of McClellan, but on a stipulation that the exchange was not to be final until it was ratified by McClellan. In a few days after the exchange took place, McClellan refused to ratify it, and insisted on having his own horse restored to him.

Erkok. to the Circuit Court of Tallapoosa. Tried before the Hon. Ezekiel Pickets. Detinue by Banks against Eowler; judgment' by default. Error assigned: “That the judgment was by default, when the record does not show that the writ had been executed on the defendant.”

<p>ERROR to the Circuit Court of Macon.</p> <p>Tried before tbe Hon. Ezekiel PickeNS.</p>

Heard before the Hon. D. Gr. Ligón. The original bill in this case was filed by James E. Nimmo in his own right against Thomas Stewart, John Thompson, James Nimmo, the… Held: that where a' defendant to a bill of revivor inserted in his answer a variety of matters, which, if stated in answer to the original bill, would have been a good defence to that bill, but was not relevant to the question of revivor, the answer was to that extent impertinent. 3 Dan. Ch. Pr., 1711.

Heard before tbe Hon. W. W. MASON. Tbe bill in this case was filed by tbe defendants in error, to reform a certain deed executed by William S. Hill, one of tbe plaintiffs in error, to Border and Moore, to secure certain of tbe grantor’s debts. Tbe facts upon wbicb tbe reformation of tbe deed is sought, appear in tbe opinion.

Tried before the Hon. G-eorge Holdthwaite. This is an action of debt on an attachment bond made by the defendant and one J. J. Steiner to the plaintiff, for the payment of $1100 25; with the following condition: “The condition of the above obligation is such, that whereas the above bound John J. Steiner hath the day of the date hereof prayed an attachment at the suit of Robert Cornell and Charles Cornell, merchants and partners, using the name of Cornell & Brother, against…

G-eo. D. Shortridge. MotioN by tbe defendant in error against tbe plaintiff, for a summary judgment under the statute, upon the following state of facts: In tbe year 1838, tbe firm of Cummings, Pitcher & Co. made an assignment of their property, in trust for tbe payment of their debts.

Ekrob. to tbe Circuit Court of Perry. Tried before tbe Hon. G-eo. D. Shortridge. Assumpsit by M. A. Eiland, to tbe use of Crocker, against M. B. Hopper.

Tried before the Hon. Ezekiel PickeNS. This suit was instituted against Margaret Black, the testatrix of the defendants in error, on a… Held: either the parties for whose benefit the promise Aras made, or the person who furnished tke consideration may maintain the action, the decisions rest on the principle that both were parties or privies to the contract, both being present when the contract was made; or there was some circumstance to make them parties or privies, as a…

Tried before the Hon. Thowas A. Walker. EJECTMENT by tbe plaintiff against tbe defendant in error.

Tried before the Hon. Turner Reayis. Assumpsit by tbe plaintiff in error, as tbe administratrix de bonis non of Hardy Abney, deceased', against Martin Pickett, tbe defendant in error.

Tried before tbe Hon. JOHN D. Phelak. Assujipsit on tbe common counts against the plaintiff in error by Joseph Pickett, Albert A. Dumas and Eliza, his wife, for the recovery of rents.

Tried before the Hon. TurNer Reavis. This was a trial of the right of property to some corn and cotton, which was taken under attachment as the property of one Samuel Lewis, at the suit of Elizabeth Hadden, and was claimed by Powell, tbe plaintiff in error. Mrs. Hadden died pending tbe suit, and it was revived in the name of her executors, the defendants in error.

Tried before Hon. Robert Dougherty. Assumpsit by tbe plaintiff in error against tbe defendant, as tbe surviving partner of tbe firm of McLester & Mclvor, attorneys at law, to recover mone}^ alleged to bave been overpaid to tbem by mistake.

Tried before the Hon. Thomas A. Walker. 1. The case should have been tried de novo in the Circuit Court. Gayle v. Turner, Minor’s E., 806; Colman v. Waters, 3 Porter, 381. 2. Before Moore could obtain a judgment final in the Circuit Court, it was necessary for him to take the proper steps in that court to entitle him to it. Case had a right to answer over. Colman v. Waters, 3 Porter 381.

This writ of error is sued out to reverse a decree rendered by the said Court of Probate, on the final settlement of the estate of William C. Smith, deceased.

Heard before the Hon. W. W. MasoN. This bill was filed by Thomas J. Burke against the plaintiffs in error, to obtain the redemption of certain lands, which were sold under execution against James M. Dunlap, of whom the complainant claimed to be a judgment creditor.

Ebrob to tbe Circuit Court of Marshall. Tried before tbe Hon. Geo. D. Shortridge.

The record does not show tbe name of tbe presiding judge. Assumpsit by tbe defendant in error against John H. Morrison and Abraham Eowden, as to the'latter of whom tbe suit was discontinued, process not having been served upon him. Tbe suit was commenced in tbe County Court, and removed by writ of error to the Circuit Court.

'Error to the Circuit Court of Tuskaloosa. Tried before the Hon. Thomas A. Walker. Trespass to try titles to certain lands described in the declaration by Ezekiel Anders v. James P. Smith. The writ appears to have been issued on the 17th of May, 1850. The declaration is in the usual form.

Tried before tbe Hon. Thomas A. Walker. Assumpsit by tbe defendant in error against tbe plaintiff, on two written instruments, in tbe form of promissory notes, executed by tbe firm of J. Murdock &… Held: that his death removed the impediment to a suit at law, and that the survivors of one firm might sue the survivors of the other.

Erkor to tbe Circuit Court of Talladega. Tried before Hon. Bobert Dougherty. EJECTMENT by Walter D. Eiddle against Samuel S. Cruise.

Tried before the Hon. THOMAS A. Walker. This was an action of debt by the defendants in error against the plaintiff, on a promissory note of which the following is a copy, viz: “ Six months after date, I promise to pay C. C. Clay & C. C. Clay, Jr., four hundred dollars, for value received of them, this 29th September, 1848.” (signed) (xEORGE WALKER. “ Test.

Tried before the Hon. TURNER Reavis. DetiNue by Henry R. Thornton against James H. Thompson, for the recovery of certain negroes and other personal property, which the plaintiff claimed under a deed… Held: that after default, a mortgagor in possession may convey to a second mortgagee such an interest as will enable him to maintain detinue.

Heard before the Hon. W. W. MasoN. The bill in this case was filed by John Michan and wife against William N. Wyatt.

Heard before tbe Hon. David Gr. LigoN. Tbe original bill in this case was filed in September, 1845, by Jordan, tbe defendant in error, as administrator of Samuel Dillard, against Bennett Ware and others.