Volume 22 — Alabama Reports

Eeros to the Circuit Court of Pickens. Tried before the Hon. TueNer Reavis. This was an iudictment against the plaintiff in error, a slave, for attempting to administer poison to white persons.

Tried before the Hon. Geo. D. Shortridg-e. The plaintiffs in error were indicted for an affray.

Tried before the Hon. B. W. Huntington. The indictment in this case was against the plaintiff in error and eight other persons, and contained four counts.

Tried before the Hon. B. W. HuntikotoN. The plaintiffs in error were indicted for betting at a faro bank. The indictment is the same with that in the preceding case, Ward v. The State. The defendants demurred to the several counts of the indictment separately, and also to the whole indictment, but their demurrers were overruled. They afterwards moved in arrest of judgment, for misjoinder of counts, and for defects in the several counts; which motion was also overruled.

Erroe to the Circuit Court of Perry. Tried before the Hon. A. B. Moore. This was an indictment against a slave named Dave, for an assault upon a free white person with intent to kill. On the trial below the defendant was convicted, and the sentence of the law was passed upon him.

<p>Error to the Circuit Court of Madison.</p> <p>Tried before the Hon. JOHN E. Moore.</p>

Tried before the Hon. Geo. D. Shortbibge. The plaintiff in error, Win. H. Butler, was indicted for forgery. The indictment contained seven counts, to each and all of which the prisoner demurred. The court sustained the demurrer to the fourth and seventh counts, and overruled it as to the others.

Tried before tbe Hon. Nathan Cook. The plaintiff in error, Nelson Parsons, was indicted for tbe murder of Drury Mayo.

Tried before the Hon. B. W. HujsttiNGTON. The plaintiff in error was indicted for keeping “a billiard table in connection with a house where spirituous liquors are retailed, as an appendage thereto.” • Clay’s Digest 434 § 19. He demurred to the indictment, but his demurrer was overruled.

MOTION to strike the cause from the docket. The facts upon which this motion is predicated, may be thus stated. Held: for the purpose of disposing of said causes still remaining undisposed of; and further, that said adjourned term be commenced on the first Monday in December nest, and continue in session three weeks.

The record does not show the name of the presiding judge. The proceeding in the court below arose on a suggestion, made by the Attorney General in behalf of the State of Alabama, that Arthur, late sheriff of Dale county, had failed to make the money on a certain fofa, which came to his hands in favor of the State of Alabama v. Archibald S. Justice, when by proper diligence it could have been made.

Robert Dougherty, presiding in the Circuit Court of Barbour, in refusing bail to the petitioner. The facts on which the application is based, are set forth in the opinion. The necessity which will exculpate the slayer, need not be actual. A reasonable belief of necessity is equivalent to an actual necessity. Oliver v. The State, 17 Ala. Rep. 587; Quesenberry v. The State, 8 S. & Por. 308; Poster’s Crown Cases, 263-264; The People v. Rector, 19 Wend.

Ehbor to the City Court of Mobile. Tried before the Hon. Alex. McKiNstry. The plaintiff in error was indicted, under § 397 of the Code, for exhibiting feats of sleight of hand, without having first taken out a license.

Heard before the Hon. D. (f. LigoN. The bill shows that Aaron Haynes, on the 5th of October, 1839, executed to Houston a deed of trust, by which he conveyed to him as trustee, a house and lot in the town of Jackson, a negro woman, Sophy, and her son Charles, and also various articles of household furniture, to secure the payment of twenty-five hundred and seven dollars, due by Haynes to Crutchfield, the complainant.

This was a PETITION for dower, filed in the Probate Court of Perry county, by Betsey Martin, in which it is averred, that she is the widow of Shadrach Martin, late of said county, deceased, and as such entitled to dower in the real and personal estate of which he died seized and possessed; that he died seized of divers parcels of land, which are particularly described in the petition; also, of a large number of slaves and other personal property in said county, a list of…

Heard before tbe Hon. E. D. TowNes. Freeman filed his bill in tbe Chancery Court of Madison, setting forth that one Daniel McDuff, late of Jackson county, died seized of a tract of land in the latter county, which descended to his heirs at law; that on the division of said lands, lot No. 4, containing 156Ty„ acres, was set off by tbe commissioners to Nathaniel, Nancy and Wm.

Tried before the Hon. George Goldtjuwaite. This was a motion for judgment against a tax collector and his securities.

Heard before the Hon. J. W. LesesNU. Jeremiah Day & Go., of Florida, filed their bill against Wm. Flake and Wm.

Robert Dougherty;. This was a proceeding in tbe court below by scire facias, instituted by tbe plaintiff in error against tbe defendants in error, in order to revive a judgment heretofore rendered in tbe Circuit Court of Russell county, and afterwards affirmed in tbe Supreme Court.

Errob, to the Chancery Court of Mobile. Heard before tbe Hon. J. W. LesesNE.

Ekkor to the Circuit Court of Macon. Tried before the Hon, Ezekibl Pickets. This proceeding ivas commenced by ordinary warrant before a justice of the peace, sued out by tlie defendant in error against the plaintiffs iu error, on a note for the sum of ■fifty dollars, falling due on the 1st January, 1851. The trial was had, and the judgment rendered on the 16th of August, 1851. The judgment was for $50 and costs, from which an appeal was taken to the Circuit Court.

Barbour. Heard before the Hon. J. W. Lesesne. The bill in this case was filed in the name of the Attorney General, on the relation of John Hart and John M. Copeland, against the plaintiffs in error, to enjoin and abate a public nuisance, caused by tbc erection of a fence by Hoole across a street or public road in the town of Eufaula.

Errok to the Circuit Court of Sumter. Tried before the Hon. R. W. HUNTINGTON. Held: that he could not vest it in his wife, by any act or declaration during the cover-ture, so as to enable her to set up the title in a court of law. In tbis case, Knigbt never bad tbe legal title, or, if 'be did have it, be held it as a naked trustee for those entitled to and having tbe possession. III.

Eeror to the Circuit Court of Mobile. Tried before the Hon. John Bragg. This was an action of ejectment, brought by the defendants in error against the plaintiff in error, to recover a certain tract of land described in the plaintiffs’ declaration.

Tried before tbe Hon. Oeorge G-oldthwAite. This was an action of assumpsit, instituted by William Bower & Co. for tbe use of Jobn N. Smith against Saltmarsh, tbe plaintiff in error, to recover tbe sum of twenty-three hundred and eighteen T\3o dollars, alleged to be due upon an account stated. Tbe declaration is in tbe usual form, and tbe defendant pleaded: 1st. Non assumpsit; 2d. Set off; and 3d. Payment; and tbe cause was tried upon these issues.

Ebbob to tbe Court of Probate of Lawrence. On tbe final settlement and distribution of tbe estate of Natban Grey, deceased, it was suggested by tbe administrator, that one Daniel, wbo bad married a daughter of tbe decedent, and whose wife was entitled to a distributive share of said estate, bad received advancements from tbe intestate for which be bad failed to account.

Tried before tbe Hon. John D. Phelan. EjectmeNT by the plaintiff in error, deriving the title to the premises through one who claimed by purchase at a sheriff’s sale, made in November, 1843, under execution against Thomas W. Fleming. The defendant claimed under a deed of trust executed by said Fleming in 1838, for the benefit of his creditors, and a purchase and conveyance from the trustees in 1840.

Tried before tbe Hon. Ezekiel Pickets. This was an action of assukrsit by tbe plaintiff in error against tbe defendant in error, on a written contract, of which tbe following is a copy: “On tbe 25th day of December next, we, or either of ns,promise to pay to Andrew Dill, guardian of John Goodwin, minor heir of Thomas Goodwin, deceased, tbe sum of one hundred and twenty-five dollars, it being for tbe hire of two negro boys, Garter and Alexander, wbicb I promise to feed with…

Tried before tbe Hon. A. B. Moore. Assumpsit against tbe defendant in error, as endorser of a bill of exchange, drawn and accepted by Donoho & Payne, dated tbe 2d of June, 1840, and due twelve months thereafter.

Errob to the Circuit Court of St. Clair. Tried before tbe Hon. Thomas A. Walker. This was au action of debt, brought by Walker against Ohenault in his lifetime, and after his death revived against his administrators, the present plaintiffs in error. The suit was commenced 17th November, 1846.

Tried before the lion. Robt. Dougherty. Rainey commenced a proceeding under tbe statute for unlawful detainer, against Capps, before a justice of the peace. On tbe trial, a judgment was rendered for tbe defendant, from which the plaintiff appealed to the Circuit Court.

Tried before the Hon. JohN Bragg-. Trespass ON the case by Bolling against Walker, to recover damages from tbe defendant as the owner of the steamboat “Olive,”… Held: that where a butcher purchased a bullock, and employed a licensed drover to drive him home instead of doing it himself, and where the bullock did mischief while driving, the butcher was not responsible for the damage, but that the drover was. Story on Agency, § 454, a; Milligan v. Wedge, 12 Adolph. & Ell. 739.

Tried before tbe Hon. LYMAN Gibbous. Trial or the right op prorerty in certain slaves, between Richard W. Gayle, as claimant, and George Bancroft, plaintiff in execution. Pending the suit, tbe plaintiff in execution. died, and tbe action was revived in tbe name of bis administrator, Charles Bancroft, against tbe objection of tbe claimant.

Tried before the Hon. A. B. Moore. íhis was an action of detinue brought by the plaintiff in error, as the executor of Thomas Einley, deceased, against the defendant in error, to recover a certain negro woman named Peggy, and some seven or eight children, her natural increase. • The plaintiff, in order to maintain his action, offered ia evidence, the last will and testament of Thomas Einley, dec’d., the parts of which that are deemed material, read as follows: “I give and…

Heard before the Hon. J. W. Leseshe. This bill was filed by the defendants in error, as heirs and next of kin of Matthew Bradley,… Held: tbat tbe statute of 29, Charles 2, was merely declaratory of tbe common law, and hence they bold tbe same doctrine in tbe absence of tbe statute; and again, some of tbe states bave held tbe same doctrine strictly upon common law principles, as they understood them, referring to decisions wbicb were either based upon tbe statute of…

Tried before tbe Hon. Thomas A. Walker. The plaintiff in error sued out a writ of attachment against Francis Inge, returnable to tbe Circuit Court of Tuskaloosa, and caused it to be levied on a negro man slave named Jackson.

Tried before the Hon. A. B. Moore. MotioN to set aside a sale of land under execution. The motion was made by the plaintiff in the execution, who is also plaintiff in error, and the purchaser at the sale was made defendant. The facts of the case appear in the opinion. 1. A sale of land by a sheriff will be set aside for the misrepresentation or fraud of a purchaser. McCollum v. Herbert & Caple, 13 Ala. 291. 2.

Robert Dougherty. This was an action on the case, by Barclay against Dixon, as survivor of Cunningham & Dixon.

Eeror to tbe Circuit Court of Perry. Tried before tbe Fon. Geo. D. Shortridge. This was an action of assumpsit, brought by tbe plaintiff in error against tbe defendants in error, in order to recover a certain amount of rent alleged to be due on a contract of lease, and also for damages occasioned by tbe burning, (during tbe term, of tbe buildings and improvements on tbe lot and premises let.

Eeroe. to tbe Circuit Court of Perry. Tried before tbe Hon. Geo. I). Shortridge. Debt on a refunding bond, by Thomas H. Wiley against Joseph W. Smith. The defendant pleaded, “ in short by consent, nil debet, payment and set-off.” The defendant having died pending the suit, it was revived against bis executor; and at tbe Spring term, 1852, there was a verdict and judgment for the plaintiff.

<p>1. Tbe condition of a replevy bond can only be complied with, after a judgment baa been rendered against tbe defendant in attachment, by a delivery of tbe property to the sheriff on bis demand; arid if the bond is returned “ forfeited” on account of a failure to deliver the property, the statute gives the plaintiff in attachment a right to a J>. fa. against all the. obligors, without any further action of the court.</p>

Ekror to the Circuit Court of Greene. Tried before the Hon. George D. Shortridge. Assuitpsit by the defendants in error against Drake, on a written contract made and entered into between Drake of the first part, and the defendants in error of the second part.

the Circuit Court of Coosa. Tried before the Hon. Geo. Goldthwaite. Trial oe the right oe property between Jas. Held: as trustee, for William Ahílen. Berry, use, &c. v. Hardman, 11 Ala. 606. 3. The proof offered and excluded tended to prove more than a contract of purchase; it tended to prove that the purchase was for William Allen’s benefit. West v. Kelly’s Exrs.-19 Ala. 355. 4.

Tried before the Hon. Robert Dougherty. This is an action of assumpsit brought by the plaintiff in error against the defendant in error to recover a certain amount of money, on the following facts and circumstances: One Price, in virtue of his office as sheriff, was the administrator with the will annexed of one Burns, deceased, and the plaintiff in error and one Haynes were his securities on his sheriff’s bond.

Tried before the Hon. Ezekiel PiokeNS. This was an action of trover, brought by the plaintiff iu error,'as the administrator of Mary Williamson, deceased, to recover for the conversion of five negro… Held: that the deed is inartificially drawn, and that the clause under the warranty limits and controls the gift, still, the question arises, whether’, according to the rule in Shelly’s case, there is not an absolute estate in tbe first taker, and not simply a life estate ?

Tried before the Hon. Thomas A. Walker. Debt by the defendant in error, as the administrator of James Word, against White, as the maker of two promissory notes, each payable to John Taylor, and assigned by him to the intestate in his lifetime; both assignments bearing date May 13, 1853.

Tried before the Hon. Robert Dougherty. DetiNue by Parks against Jones, for a w&gon and harness.

<p>Error to tbe Circuit Court of Greene.</p> <p>The record does not show the name of the presiding judge.</p> <p>Assumpsit by Lee against Leachman, as the administrator de bonis van of Lewis Oliver, deceased, on a promissory note made by said Oliver, dated May 15, 1837, and payable two years after date.</p> <p>Among other pleas, the defendant pleaded the statute of limitations; to which the plaintiff replied, that, after the death of said Oliver, Elizabeth Oliver was appointed his ad-ministratrix on the 11th November, 1839, by the Orphans’ Court of Greene; that said administratrix, afterwards, on the 11th January, 1841, reported the estate of her intestate insolvent, which report was received by the court, and an order was made, agreeably to the statute, requiring all claims against said estate to be filed in the office of the clerk of said court within the time prescribed by law ; that plaintiff filed his note in the clerk’s office, as a claim against said estate, on the 21st May, 1841, agreeably to the terms of said order; that said claim remained on file until March, 1845, no settlement of said estate having taken place, at which time said administratrix appeared in said court, and resigned her said administration; that said resignation was accepted by said court, and that said Leachman was, then and there, appointed administrator de bonis non of said estate. The replication then proceeds as follows: “And so the said plaintiff in fact says, that deducting the time during which his right of action on the aforesaid promissory note was suspended by the report of the insolvency of said estate, as aforesaid, his said action did accrue within six years, &c.; and this he is ready to verify,” &c.</p> <p>To this replication the defendant demurred, and Ms demurrer was sustained; and the judgment on the demurrer is now assigned for error.</p> <p>1. By our statute, after an estate is declared insolvent, a creditor cannot commence and prosecute an action on his debt against the executor or administrator, but is required to file his claim in the clerk’s office within six months after the estate is declared insolvent. Clay’s Dig. 194, § 10. If, however, an action has been commenced before the estate is declared insolvent, it will not be abated on any plea or suggestion that such estate has been reported or declared insolvent; in such case the creditor may have judgment, that he is entitled to the sum found to be due him, but on such judgment no execution can issue; the only effect of such judgment is, to settle the amount of the creditor’s claim against the estate, which is to be certified to the Orphans’ Court, and there paid like other claims that may be established againsr the estate. Clay’s Dig. 196, § 13.</p> <p>2. Although, as a general rule, when a statute of limitations once commences, it runs on, notwithstanding any subsequent disability ; yet, when the disability grows out of some statutory provision, the time during which such temporary disability continues, is excluded from the computation. 3 Por. 247; 2 ib. 44; 2 Smedes and Marshall’s Rep. 452, and the cases cited. As, therefore, the plaintiff was prohibited from suing on his own claim, from the time the estate was declared insolvent until it was afterwards found to be solvent, the time between those periods ought not to have been counted against the plaintiff.</p> <p>The statute of limitations had commenced to run, before the report of the insolvency of the estate; and when the statute has once begun to run, no intervening disability of either party will arrest it. Angelí on Limitations, 67 ; 4 Howard’s R. 38; 2 Bibb 537 ; 4 ib. 468; 15 Ala. 198.</p> <p>This case is not within any of the express exceptions of the statute, — Olay’s Digest 326 ; and when a party seeks to avoid the. statutory bar, be must bring himself within some one of its exceptions; courts will not extend the exceptions of the statute. 1 Cowen’s B. 856; Angelí on Limitations 205. The death of neither party will arrest it. 3 Stew. 180; 15 Ala. 546. The pendency of an injunction will not arrest it.' 16 Wend. 572. The bankruptcy of a party will not suspend it. 17 Ala. 873.</p> <p>The report of an estate as insolvent, does not prevent the creditor from proceeding to enforce his debt; it only changes the forum of litigation to the Orphans’ Court. Aikin’s Dig. 152, 154; Edwards v. Gribbs, 11 Ala. 292.</p>

Eeroe to the Circuit Court of Limestone. Tried before the Hon. Thomas A. Walker.

Tried before the Hon. GIeo. D. Shortridge. This was an action of assumpsit, by the defendant in error against the plaintiff, to recover certain moneys alleged to have been paid by the plaintiff’s intestate, in part execution of a contract for the purchase of the premises known as the Bell Tavern in the city of Tuskaloosa.

Tried before the Hon. A. B. Moork. The plaintiff' in error being a judgment creditor of ODe Bobert B. Jones, caused a writ of… Held: the sum of $295, under the following circumstances: One Stannard, who was a judgment creditor of B. B. Jones, had caused an execution in his favor to be levied on certain slaves; after tbe levy, Edward B. Mosley, as trustee for tbe wife of said Jones, interposed a claim to said slaves and executed a claim bond, with Nathan Bryan and…

The record does not show the name of the presiding judge. This suit was commenced by attachment by the plaintiff in error against Hugh McDonald, on the ground that the defendant was a non-resident debtor; and the defendant having died during its pendency, a scire facias was issued, in the usual form, against the defendant in error, as his executor, to appear and show cause why the suit should not be revived, against him.

The plaintiff in error was appointed by the Orphans’ Court of Marion county administrator of Daniel Holliday, in March, 1837.

Tried before tbe Hon. NathAN Cook.. This was a proceeding originally commenced in the Commissioners’ Court of Roads and Revenue in Dallas county, at the instance of the plaintiff in error and others, for the purpose of establishing a new road. The Commissioners’ Court granted the prayer of the petitioners, and empanneled a jury to view and lay out the road, according to the statute in such case made and provided.

Eeror to tbe Circuit Court of Pickens. Tried before tbe Kon. TuRNER Reavis. The issue in this case in tbe court below was devisavit vel non. Held: that the declarations of Mrs. Davis, who is the principal legatee, were not admissible evidence for the contestants, to show that the will was obtained by fraud or undue influence, because there were other legatees.

Tried before the Hon. B. W. HusttiNGTON. Tbe plaintiffs in error, who were also plaintiffs in the court below, sued out their writ of capias ad respondendum in as-sumpsit, on the 15th day of October, 1851, against Johnson, returnable to the Circuit Court of Pickens, which commenced its session on the 20th of the same month.

Error, to the Circuit Court of Talladega. Tried before tbe Hon. ROBERT Dougherty. The action was a special action on the case, brought by the defendant in error against the plaintiff in error, to recover damages for a deceit in the sale of land.

Tried before tbe Hon. B, W. HtjNtiNGTON. Sims sued Williams before a justice of the peace, upon a written instrument, of wbicb tbe following is a copy : “Due on tbe first day of January, 1852, Tbomas Sims, twenty-six dollars, to be paid in solvent notes and accounts of other men. November 18, 1851. (Signed) James 0.

Tbe defendant in error, as tbe administrator of Tbomas Finklea, deceased, bad an annual settlement of bis administration on said estate, with tbe Court of Probate, at its December term, 1852. On tbis settlement, tbe administrator claimed a credit for two particular items in bis account, wbicb were resisted bj tbe plaintiffs in error; but tbe court allowed tbe items as credits, and tbe plaintiffs in error excepted.

Eeeoe to tbe Circuit Court of Lowndes. Tried before tbe Hon. Nathan Cook. 1. This cause having been “three times” tried in tbe Circuit Court, after tbe appeal, on tbe general issue, “ non assump-sit,” tbe court erred in permitting tbe defendant to withdraw bis plea of non assumpsit after tbe cause came from tbe Supreme Court, and file bis plea in “ abatement.” Tbis plea, if good at all, should have been filed on tbe first trial before pleading to tbe merits.

Tried before tbe Hon. Ezekiel Pickens. This case originated before a justice of the peace, and was brought to the Circuit Court by writ of certiorari.

William Gilbert, the plaintiff in error, as executor of James M. Gilbert, deceased, propounded bis nuncupative will for probate, which was contested bj the defendant in error, a son of the deceased, who appeared in person, and, being a minor over fourteen years of age, was represented by a guardian ad litem appointed by the court.

Tried before tbe Hon. Turner Reavis. Detinue ■ by Smith against Bryan for thirty bales of cotton.

<p>Erroe, to the Circuit Court of Sumter.</p> <p>Tried before the Hon. TURNER Reavis.</p> <p>Assumpsit by Lyon & Baker against Loftin, on the following state of facts: One Roane was indebted to Loftin in the sum of about eighty dollars, and was also indebted to Lyon & Baker in the sum of about one hundred and fifty dollars; he delivered .to Loftin a certain amount of cotton, to be sold, and the proceeds to be appropriated, first to the payment of Loftin’s debt, and the balance to be paid to Lyon & Baker in extinguishment of their debt; Loftin took the cotton on these terms, and agreed to sell it and apply the proceeds in the manner above stated; he sold the cotton for one hundred and sixty dollars, and this action was brought to recover the balance remaining in his hands after the payment of his own debt.</p> <p>On the trial below, the plaintiffs released Eoane from all liability to them on his said indebtedness, and then offered him as a witness to prove the above mentioned facts. The defendant objected to his competency as a witness, but the objection was overruled, and defendant' excepted. This ruling of the court is now assigned for error.</p> <p>Eoane was incompetent as a witness, because he was the transferror of a chose in action, and because it is contrary to public policy to permit a witness to prove a consideration, moving from himself, by which he may fix a liability upon a third person to pay his debt; and even a release cannot render him competent. Houston v. Prewitt, 8 Ala. 846; Clifton et al. v. Sharpe, lo ib. 618.</p> <p>He was also incompetent, because the effect of his evidence was to create a fund in discharge of his own liability. Pey-ton v. Hallett, 1 Caine’s Eep. 864, note; McLeod v. Johnson, 4 Johns. 126; Stewart v. Kip, 5 ib. 256; 5 Wend. 55.</p> <p>By the sale of the cotton, a debt was created from Loftin to Lyon & Baker, for which they could sue in their own name. Hitchcock et al. v. Lukens & Son, 8 Porter 883. It was not, therefore, the transfer of a chose in action, but the creation of an original debt.from Loftin to Lyon & Baker.</p> <p>The validity of this debt rests on the promise to pay by Loftin for valuable consideration; it does not depend on the fact of the existence of the debt from Eoane to Lyon & Baker. The defendants in error might, as they did, release Eoane, and look only to Loftin; and having done so, Eoane had no interest in the result, and was competent.</p> <p>In the cases cited by plaintiff’s counsel, no release had been executed.</p>

<p>Ereos to the Chancery Court of Talladega.</p> <p>Heard before the Hon. David GL Ligón.</p> <p>The facts will be found in the opinion of the court.</p> <p>The question presented by this record has, in effect, been decided by this court in the case of McPherson v. Walters, 16 Ala. 715. See also Dongrey v. Topping & Holmes, 4 Paige 94; Read v. Heasley, 2 B. Monroe 254.</p> <p>Where a man encourages another to settle upon and improve land, and expend his labor and money upon it, he will not afterwards be permitted to take it from him, although he has an older and better title to it. McElvey v. Truby, 4 Watts & Serg. 323: McCormick y. McMutin, 4 Watts 195; Eply y. Withword, 7 ib. 163; Carr v. Wallace, 7 ib. 394.</p> <p>It is said in the last case cited: “ There is no principle of equity and public policy better settled than this: If one knowingly, though passively, suffer another to purchase and spend money on land, under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal right against such person.” See also Hatch v. Kimball, 16 Maine B. 106; Marshall y. Pierce, 12 N. Hamp. 186-7; Moore v. Child & Carlton, 6 ib. 521. So a man may be estopped by matter in pais, which is not in writing. 4 Comyn’s Dig. Estoppel 200, a. 3; Brown v. Wheeler, 17 Conn. 354; Shelton y. Alcox, 11 Conn. 240; Martin v. Ives, 17 S. & B. 364; Bunlett v. Otis, 2 N. H. 167; Morris v. Bosser, 3 East 15; Jackson y. Desling, 2 Caine’s C. 198; 15 John. 497; Jackson v. Gager, 5 Cowen 383 ; 12 Wend. 578; Jones v. Boston Mill Cor., 6 Pick. 148; Emans v. Turnbull, 2 John. 313; 1 Phillips’ Ev. C. & H. Notes, 200 et seep; Whiteside v. Jackson, 1 Wend. 418; Jackson v. Miller, 7 Cow. 747; Jackson v. Walker, 7 ib. 637; Jackson v. Smith, 7 ib. 717. These last four cases settle the law of estoppel between vendor and vendee.</p> <p>1. To create an estoppel in pais, which shall preclude a party from alleging the truth, or deprive him of his legal title to land, it must appear: first, that he has made some declaration, or done some act, inconsistent with the truth, with a design to influence the conduct of another; second, that the party alleging the estoppel was ignorant of the truth, and relied and acted upon the faith of such acts or declarations; third, that an injury will result to him, if the other party shall be allowed to gainsay them — that is, the acts or declarations upon which the other party acted. Fraud and injury must concur, to create such an estoppel. Martin v. Angelí, 7 Barb. Sup. Ct. Bep. 407; Hunley v. Hunley, 15 Ala. Bep. 92; Carter v. Darby, 15 ib. 696; Brewer v. Logan, 19 ib. 482; Shelton v. Carroll, 16 ib. 148; Morton v. Hodgdon, 32 Maine Bep. 127.</p> <p>2. A party will not be estopped by a declaration made to a stranger, (that is, to one who, “so far as the question of estoppel is concerned,” is a stranger,) where it does not appear that such declaration was ever communicated by him to the party setting up the estoppel, so as to influence his conduct. Pennell v. Hinman, 7 Barb. Sup. Ct. Bep. 644; 19 Ala. Bep. 482, supra ; Whitaker v. Williams, 20 Conn. Rep. 98. Therefore, the direction of Britton to the sheriff, to levy on and sell the land, cannot estop Britton, especially as Stone never beard of this until after his purchase, and was not influenced by it.</p> <p>3. Under our act of 1820, the equitable title or claim to land, cannot be sold under execution at law. And a purchaser at sheriff’s sale acquires no right or interest whatever, where the title of the defendant in execution is merely equitable. The maxim, “caveat emptor,” applies to such sales in its utmost rigor. There is no warranty in such sales. Perry v. Williams, Dudley’s (S. C.) Rep. 44; Hughson v. Burr, 5 Strobhart’s Law Rep. 147. This case last cited shows, that, although such purchaser acquires no title, and although the owner of the property sues him for it and recovers it, yet he cannot, in any mode, recover from the defendant in execution, whose debt he has paid, any part of the money which he paid under such sale. 5 Strob. Law Rep. 147, supra; Perry v. Williams, Dudley’s (S. C.) Rep. 44.</p> <p>4. It is not alleged or pretended by the bill, that the'defendant, in any manner, or to any extent, directly induced or influenced Stone to make the purchase at sheriff’s sale.</p> <p>5. Upon the facts alleged in the bill, the court of law from which the execution issued, would not, on a direct motion, set aside the sheriff’s sale, or vacate the satisfaction caused by the payment of the bid. Davis v. Hunt, 2 Bailey’s Rep. 412; Dudley’s Rep. 44, supra.</p>

This case arose ou a scire Jadas. It appears that the plaintiff in error, with one Thomas C. Hanson, sued out letters testamentary on the estate of William Hanson, deceased. A final settlement of said estate was had in 1844, when a decree in favor of the defendants in -error was made for $838 TW.

Tried before the Hon. JOHN E. Moore. Assumpsit by Allen Cooper against Alexander P. Jones, to recover the amount of a tavern bill, the greater portion of which consisted of items for spirituous liquors sold to the defendant, by the glass, for himself and others. On the trial, plaintiff introduced the account, and offered evidence tending to show defendant’s admission of its correctness.

<p>1. When a bill is filed by a married "woman against her trustee and certain judgment creditors of her husband, to reform a deed alleged to have been intended to convey the property in trust for her sole and separate use, and to appoint another trustee, and decrees pro confesso are taken against all the defendants except the trastee, who answers that he knows nothing about the alleged mistake, the clear and direct testimony of one witness is sufficient to authorize the reformation of the deed.</p> <p>2. In such ease, the trustee, after having taken on himself the execution of the trust, cannot allege fraud in the execution of the deed, as a defence against the relief sought by the bill.</p>

<p>1. A decision of the inferior tribunals upon facts, cannot be made the basis of an ■ assignment of error, unless the record shows that exception was taken in the court below to its ruling.</p> <p>2. Where an estate is directed by the will to be kept together until the testator’s youngest child becomes of age, (1845) and the administrator with the will annexed rents out the real estate, or cultivates it for his own benefit, he is chargeable with the rents on final settlement, although the administration commenced prior to the passage of the act of 1839, and although he failed to make final settlement at the time appointed by the will.</p>

<p>Error to tbe Chancery Court of Greene;</p> <p>Heard before the Hon. W. W. MasoN.</p> <p>The defendants in error filed their bill in the Chancery Court of Greene county, against Hitt and Wade, alleging that, on the 10th of April, A. D., 1831, John Pearson, their maternal grand-father, then a resident of the State of South Carolina, executed a deed of gift, which was duly recorded in that State, by which he conveyed certain slaves, in the bill named, to Thomas H. Wade, as trustee, to the sole and separate use of his daughter, Martha Ann Rush, wife of James Rush; she to have the sole possession, use and control of said slaves during her natural life, and the remainder in the said slaves and their increase to go to her children who might be living at the time of her death; the said Martha having power to defeat the remainder, by disposing of said property by will, having obtained her husband’s consent thereto in writing.</p> <p>The bill avers the death of the said Martha, without having disposed of said slaves; that complainants are the persons designated in the deed as entitled to the remainder; that since, the removal of the beneficiaries under the deed, from South Carolina to this State, and before the death of Mrs. Rush, one of the slaves mentioned in the deed, named Eve, and her increase, which compose the slaves now in controversy, viz: in 1839, came into the possession of said John M. Hitt, who refuses to deliver them to complainants, but claims them as his own; that the grantor, Pearson, is dead; that Wade, tbe trustee, resides in’South Carolina, has acted negligently in not protecting complainants’ interest, and in permitting said Eye and her children to remain in possession of Hitt.</p> <p>The bill prays a decree for the slaves and an account of their hire; alleges that, in 1844, the complainants filed their bill, by said Hitt as their next friend, to remove Wade as trustee, and for the appointment of some suitable person in this State; that the court required, as a condition of its decree, that the next friend should give bond in the sum of $500, conditioned to abide such decree as should be made upon the appearance of Wade, he being a non-resident of this State; and avers that Hitt, combining with Wade, refuses to give the required bond, so that the decree has not been executed.</p> <p>The defendant, Hitt, filed his answer, and afterwards a supplement thereto, and among many other grounds of de-fence, which it is unnecessary to state, inasmuch as they are not insisted upon in this court as grounds for reversal, averred that the negro woman Eve, who is the mother of the other slaves sued for, was given by John Pearson to James Eush, his son-in-law, anterior to the execution of the deed to Wade, the trustee; that said slave was delivered to Eush, and the gift perfected, before the alleged deed of gift was executed; and that on the 7th day of January, 1837, the defendant, Hitt, purchased said slave, for a full and fair consideration, of Eush, who held her under the previous gift, and not under the deed.</p> <p>Whether the slave Eve was given to said James Eush, by John Pearson, and delivered before the 10th day of April, 1831, the date of the conveyance in trust to Wade, is the sole question argued before this court.</p> <p>The Chancellor decreed in favor of the complainants, ordering the slave Eve and her increase to be delivered up to them, and that they recover their hire, &c.</p>

Tried before the Hon. JOHN Gill Shorter. Causey sued Smith before a justice of the peace, to recover damages for injuries which his hogs had received from the dogs of the defendant. He recovered a judgment against him for ten dollars, from which Smith appealed to the Circuit Court.

MOTION by tbe defendants in error to strike tbe bill of exceptions from tbe record, because it appeared on its face to have been signed by tbe presiding judge after tbe adjournment of tbe court.

<p>Erroe to tbe Circuit Court of Mobile.</p> <p>Tried before tbe Hon. LymAN GtbboNS.</p> <p>This was an action of assumpsit by tbe Fireman’s Insurance Company of Mobile against Perrine, as endorser of a note for $180, made by one Jeanarett, dated tbe 9tb of April, 1847, payable to tbe defendant eight months after date, at tbe Bank of Mobile, and endorsed by tbe defendant to tbe plaintiffs.</p> <p>Tbe plaintiffs proved demand and notice, and rested their cause.</p> <p>Tbe defendant proved, that, sometime in tbe year 1839, Jeanarett became indebted to plaintiffs for ten shares of tbe stock of the Company, and that be (Perrine) became bis security, and as such endorsed bis note for tbe amount; that tbe note was renewed from time to time, until 1847, when tbe note sued on was given, and was tbe last renewal of said indebtedness.</p> <p>Tbe defendant then read in evidence tbe second section of an act of tbe legislature, passed in 1841, amending tbe charter'of plaintiffs, which is in these words:</p> <p>“ Sec. 2. And be it further enacted, That each and every stockholder shall be individually and personally liable at law, as well as in equity, (in addition to the securities given,) for the amount of instalments due upon each share of the stock of said Company, until the capital stock is paid in full; and the Board of Directors of said Company may, at its option, retain the dividends, and prohibit the transfer of tin- stock belonging to any stockholder who may be indebted to J|id Company for loans, or otherwise.”</p> <p>This amendment the Company accepted, but no by-law ox' resolution was ever passed, declaring that they would retain dividends or prohibit the sale of stock by the stockholders in debt to the Company.</p> <p>Defendant then proved, that, in the year 1844, the said Jeanarett still owned the said ten shares of stock, and they stood in his name on the plaintiffs’ books, and that he still owed the plaintiffs the same debt, for which this suit is brought, and for which defendant was surety; notwithstanding which, the plaintiffs permitted the said Jeanarett to sell his stock to a third person, which he did, and the stock was assigned and transferred on the books of the plaintiffs, to the name and account of the purchaser, by the plaintiffs, without the knowledge or consent of the defendant.</p> <p>XJpon this evidence, the court charged the jury :</p> <p>That the statute made it optional with the plaintiffs to claim a lien on the stock; and as they had never exerted that right, and had not exercised the option spoken of in the statute, making the stock of Jeanarett liable for his debt, that no actual lien attached in favor of the Company while the stock belonged to Jeanarett, until the exercise of the right by the Company; and that the defendant, therefore, was not injured by their permitting the transfer to be made, and he could not set this up as a defence to the action, unless he first showed that he had called upon the Company to exercise the right, and they refused to do so.</p> <p>To this charge the defendant excepted, and here assigns the same for error.</p>

<p>1. A sheriff may, by leave of the court, amend his return on an execution, pending a motion against him for failing to pay over the money collected on it.</p> <p>2. A levy and sale of property under execution is a satisfaction of it pro tanto, if the property is subject to the execution; but if it is not in fact subject, the party having the better legal right may appear before the court, and claim the money, which is then no satisfaction of the execution, nor even a credit to be applied to it.</p>

Heard before the Hon. David G. LigoN. This bill was filed by the plaintiff in error against George W. Webb, Clement G. Lanier, Dent Lamar and others, to obtain an injunction against a judgment at law. An injunction was awarded on tbe filing of tbe bill; and after the answers came in, the cause was submitted to tbe Chancellor, on motion to dismiss tbe bill for want of equity, or, if tbis motion was overruled, to dissolve tbe injunction on tbe bill and answers.

<p>Error to the Circuit Court of Talladega.</p> <p>Tried before the Hon. Robert Dougherty.</p> <p>Debt on a sheriff’s bond, against him and his sureties. The writ is in the name of “Reuben Chapman, Governor, &c., who sues for the use of the Branch of the Bank of the State of Alabama at Decatur;” and the declaration is in the name of “Reuben Chapman, Governor of the State of Alabama, and successor in office of Benjamin Fitzpatrick, who sues for the use of the Branch of the,Bank of the State of Alabama at Decatur.”</p> <p>The defendants below moved to strike the declaration from the files, because there was no writ in the case which would support it, and because it was a gross departure from the writ on file. The motion was allowed, and the declaration ordered to be stricken from the files; whereupon the plaintiff took. a non-suit, with leave to move to set it aside in this court.</p> <p>1. It is. impossible,, we think, to hold that the writ in this case will not authorize the declaration which was struck from the files. The writ was issued April 13,1848; and the court will judicially take notice that Reuben Chapman was governor at the date-of the writ. The endorsement of the cause of action is thus stated; “ The within action is founded on the official bond of said Spence, as sheriff of Talladega county,” &c., “payable to Benjamin Fitzpatrick, Governor, and his successors in office.” This was not a variance. Caldwell v. Branch Bank at Mobile, 11 Ala. 551. The statute requires tbe sheriff’s bond to be made payable “to the governor for the time being, and his successors in office;” it does not add the words, “ of the State of Alabama.” The case of Bagby v. Baker, 18 Ala., does not apply to this at all.</p> <p>2. If there is any variance at all, it is so slight that the court should have permitted an amendment. The statute provides, “that the party may amend, by the record, any mistake in the Christian name or surname of either party.” If the writ is a part of the record for the purpose of sustaining a motion to strike out the declaration, is it not also for the purpose of amendment ? Clay’s Digest 821, § 50; 11 Mass. 388; 11 Ala. 549.</p> <p>3. If there is anything in the objection, it ought to have been pleaded in abatement. If a corporation sue or is sued by a wrong name, to take advantage of the misnomer, it must be pleaded in abatement, and not in bar. Angelí and Ames on Corporations 514; 1 Chitty’s Pleadings 440; Bank of Utica v. Smalley, 2 Cowen 778; Medway Manuf. Co. v. Adams, 10 Mass. 860. A variance between the writ and declaration must be pleaded in abatement, 9 Porter 195; 9 Ala. 866; 3 ib, 154; ib. 741. And the statute is to the same effect. Clay’s Digest 835, § 123. The usee is the real party plaintiff; he is responsible for the costs, and alone interested in the suit.</p> <p>1. The governor of the State of Alabama is a corporation sole. Article 4 of the Constitution, § 1; Governor v. Allen & McMurdie, 8 Humph. 176; Bagby v. Baker, 18 Ala. 653.</p> <p>2. The writ cannot be considered as brought in the name of the governor of the State of Alabama; it is the individual suit of Reuben Chapman. The words, “Governor, &c.,”used in the writ, are mere surplusage, or a descriptio personal. 18 Ala. 658; 6 ib. 387; 4 Rand. 859. "When the suit is by the governor as an officer, or as a corporation sole, the name of the individual is surplusage, and may be stricken out. Bagby v. Chandler, 8 Ala. 230. Strike out “Reuben Chapman” in this case, and the writ is a nullity. 20 Ala. 576.</p> <p>3. A corporation, whether aggregate or sole, can only sue in the name given it by law. 4 Rand. 359; 2 Bacon’s Abr. 440, 444.</p> <p>4. A writ in favor of an individual will not sustain a declaration in favor of an officer or corporation. Sucb declaration is a nullity, and may be so treated. 1 Ala. 74; 4 ib. 120; 11 ib. 618; 18 ib. 395 ; 1 ib. 525 ; 2 Dev. Law R. 156.</p> <p>5. The writ shows who are the parties to the suit, and these parties cannot be changed. A writ by one man will not authorize a declaration by another. All the pleadings must be in the name of the parties shown by the writ. A stranger, cannot be permitted to intervene. 16 Ala. 813.</p> <p>6. A writ or process is necessary to give the court jurisdiction ; and it only confers jurisdiction over the defendant, as to the plaintiff in the writ. The court cannot compel the defendant to plead or demur to a declaration by another plaintiff. 2 Dev. Law R. 156.</p> <p>7. The objection was beyond the power of amendment; the declaration introduced an entirely new and different plaintiff. 1 Ala. 525; 18 ib. 395; ib. 653; 2 Dev. Law R. 161.</p> <p>8. The objection was properly taken by motion to strike the declaration from the files. The plaintiff never filed any declaration at all, and how could the defendant plead in abatement ? This is not the case of a variance between the writ and declaration; but it is the bringing in of a new party plaintiff, when there has been no abatement by death or otherwise. 3 Ala. 154; 16 ib. 813; 3 Stew. 322. The rule which requires a variance between the writ and declaration to be pleaded iú abatement, applies to only three classes of cases: 1. Where the identity of the parties is admitted, but there is a mistake in the name; 2. Where the form of the action is changed; 3. Where the plea gives the plaintiff a better writ. 18 Ala. 395.</p> <p>9. The motion to strike the declaration from the files was addressed to the discretion of the court, and cannot be revised on error. 9 Ala. 866; 4 ib. 118; 9 Porter 232. The case last cited also shows, that the endorsement of the cause of action is no part of the writ.</p>

Heard before the Hon. James B. Clark. This bill was filed by the administrator of Bethel Holmes and the administrator of William M. West, against the heirs of Holmes and the heirs of West.

Tried before the Hon. TURNER Reavis. Trespass to try titles, by Coleman against Hair. Saxon & Saxon (use of Myer) brought suit by attachment against Horrisberger & Brother, in the Circuit Court of Sumter, on the 7th day of September, 1849, and afterwards recovered judgment. The writ of attachment was levied upon the bous in quo, 7th September, 1849.

Tried before the Hon. NATHAN Cook. This was a proceeding by garnishment in the court below, instituted by the plaintiff in error against the defendant in error, calling upon him to answer, according to the statute in such cases made and provided, what he was indebted to one Jeter. The garnishee appeared in obedience to the summons, and answered at length, detailing various transactions with the said Jeter, but concluding by a denial of indebtedness.

<p>1. A complainant cannot set up one contract in his bill, and recover upon proof of a different one.</p>

Tried before tbe Hon. Turner Reavis. Tbe plaintiff commenced bis suit in tbe court below, by suing out a writ of attachment against tbe defendant, for tbe recovery of one hundred and five dollars for the use and occupation of certain lands for the year 1850. The ground laid for the attachment is, that the tenants are removing the crop from the rented premises, without having paid the rent.

Tried before the Hon. A. B. Moore. Assumpsit by Stephen H. Martin, executor of Josee Dunn, deceased, against William E. Nall. The declaration contains three counts. The first count alleges that defendant was indebted to plaintiff for money paid, laid out and expended by plaintiff, to and for defendant, and at his special instance and request.

Tried before the Hon. Geo. D. Shortridge. This was an action of trespass vi et armis, by Blackburn against Minter. The record in the case shows, that the parties went to trial upon issue joined. The plaintiff introduced evidence conducing to make out his case, and rested.

<p>Ereor to the Circuit Court of Montgomery.</p> <p>Tried before the Hon. Johw Gill Shorter.</p> <p>This was an action of slander, brought by Elizabeth Myatt against Margaret Sidgreaves, to recover damages for certain slanderous words spoken by defendant, of and concerning plaintiff, imputing to her a want of chastity.</p> <p>On the trial below, a bill of exceptions was allowed, from which it appears, that the plaintiff was a niece of the defendant ; that she was an English woman, and came to this country in 1849 with defendant, and stopped in Mobile; that in June, 1851, she came to Montgomery, in company with defendant’s son, and remained several weeks at defendant’s bouse; that tbe slanderous words charged were spoken while plaintiff was staying at defendant’s house; that plaintiff remained in Montgomery until a short time before the trial, and then removed to Mobile, where she now resides.</p> <p>The bill of exceptions also shows, that, on the trial below, the defendant asked that the witnesses might be put under the rule, and the court so ordered. Plaintiff introduced only two witnesses, and when the second was introduced, being sworn on his voir dire, he stated, that he was in the court room when the order was made for the witnesses to retire, but remained there during the entire examination of the first witness. The defendant objected to his being allowed to testify; but it being shown that the plaintiff was not present at the trial, that her attorney had directed the sheriff to call this witness, that he was called at the court house door and did not answer, and that neither the attorney nor the sheriff knew him or was apprised of his presence in court, the court overruled the objection, and permitted the witness to testify; and to this the defendant excepted.</p> <p>The defendant’s counsel asked the court to instruct the jury as follows:</p> <p>1. “ That if they believed from the evidence, that plaintiff was not a citizen of Alabama, or of the United States, at the time the words charged were spoken, then they must find for defendant; which charge the court refused to give, and defendant excepted;</p> <p>2. That if they believed from the evidence, that plaintiff was a citizen of the United States, and not of the State of Alabama, and was only sojourning here temporarily, they must find for defendant; which charge also the court refused, and defendant excepted.”</p> <p>The court thereupon charged the jury:</p> <p>“ That if they believed from the evidence, that plaintiff was living in the State, although not naturalized at the time the alleged words were spoken, they must find for plaintiff, if the other facts were proved necessary to sustain her action under the rules laid down by the court; tQ which charge defendant excepted.”</p> <p>“ That although plaintiff had alleged in her declaration, by way of inducement, tbat sbe was chaste and in good repute, yet she was not bound to prove such to be the fact, in order to recover in this action; to which charge defendant also excepted.”</p> <p>1. The court erred in refusing to give the first charge asked. The words charged were not actionable at common law, without an averment and proof of special damages. Berry v. Carter & Wife, 4 Stew. & P. 387. The statute of this State making such words actionable of themselves, when “ spoken and published of any female person of this State,” is in derogation of the common law, and must be strictly construed. The intention of the legislature evidently was, to confer this benefit on female citizens of this State; “female person,” as used in this statute, means “female citizen.”</p> <p>2. The court. erred in refusing to give the second charge asked. If the statute is held to extend not only to female citizens, but to female residents or inhabitants of this State, it would not include “sojourners.”</p> <p>3. The charge given was erroneous for the same reasons; it was too indefinite, and included in the operation of the statute those who were not entitled to its benefits. Sutliff v. Forgey, 1 Cowen’s R. 89.</p> <p>1. It was discretionary with the court to permit the witness to testify, although he had remained in the court room after the order was made requiring the witnesses to withdraw. Brookshire v. The State, 2 Ala. 305.</p> <p>2. The act of 1830, under which the action was brought, does not require that the plaintiff shall be a citizen of this State, or of the United States. A foreigner dwelling or living in this State, is as much entitled to the benefit of the statute, as a naturalized citizen. The statute was designed to protect the character of every female within the State, whether she remained temporarily or permanently. If this is the proper construction of the statute, the charge given and the refusals to charge as requested, were correct. The second charge asked was also abstract.</p>

Tbe record does not show tbe name of tbe presiding judge. Trespass by Glass against Eavers, for that tbe defendant, wbo was a constable, seized and sold under execution a vehicle with four wheels, drawn by oxen and called an ox wagon, which plaintiff claimed to be exempt from execution under tbe statute found in Clay’s Dig. 210 § 47.

Tried before tbe Hon. Ezekiel Pickens. Hornsby brought suit before a justice of tbe peace, to recover tbe value of certain pine trees wbicb Orossland bad cut and removed from bis lands, and recovered nine dollars, tbe statutory value of three trees. Crossland appealed to tbe Circuit Court, and tbe case was there tried by a jury, and a verdict rendered for fifty cents in favor of tbe plaintiff.

Tried before the Hon. George Goldthwaite. Motioh by the plaintiff in error to quash a writ of capias ad satisfaciendum, issued against him on a judgment rendered in favor of the defendant in error.

Tried before tbe Hon. Ezekiel PickeNS. This was an action of TRESPASS m et armis, brought by Griffin against Lindsay.

Tried before tbe Hon. TURNER Reayis. This was a trial oe the right of property in certain slaves, which were levied on under an execution… Held: kept and used said negroes in the State of Mississippi, until the fall of the year, 1848, when he removed with them to Sumter county, Alabama.” The claimant then introduced, and read without objection, the statute of the State of Mississippi in Hutchinson’s code, showing that the statute of limitations of that State for actions of…

Heard before the Hon. James B. Clark. This bill was filed by the plaintiff in error to enjoin the Bank from selling under execution at law against John S. Burnett, the husband of complainant, certain slaves, which she alleges belong to her, and were bequeathed by her father, James Hebbin, to her sole and separate use.

Tried before the Hon. Geo. W. Stone. The defendant in error commenced a suit by attachment against one Joseph Wood, in the Circuit Court of Macon, and the plaintiff in error was summoned as a garnishee. The writ of garnishment was sent to the county of Mobile, and was there served upon the garnishee, as appears by the return of the sheriff of that county.

Heard before tbe Hon. W. W. MASON. This bill is filed by the plaintiff in error, against Benjamin P. Lewis and Samuel D. Lewis.

Tried before the Hon. Lyman GibboNS. This was a motion by the plaintiffs in error to quash a bond given for the trial of the right of property, in a claim suit between the defendant in error and Eichard W. Gayle as claimant. The court refused tbe motion, and its refusal is now assigned for error.

Tried before the Hon. NathaN Cook. Hall commenced two actions before a justice of the peace against the defendants in error, founded on two promissory notes executed by them jointly, each for $44 TW, dated January 30, 1849, and payable January 30, 1850. The justice rendered judgment in each case in favor of the plaintiff, and the defendants appealed to the Circuit Court, where plaintiff filed his statement against them.

<p>1. When a bill is filed for the settlement of an estate by several complainants, ■ claiming to be next of kin of the decedent, and one of them claims through his father, who died after said decedent, there is a misjoinder of complainants •which is fatal on general demurrer.</p>

<p>1. In appeal cases, where the amount in controversy is less than twenty dollars, the failure of the plaintiff to he present at the trial cannot deprive the defendant of his legal right to testify.</p>

Essos to tbe Circuit Court of Talladega. Tried before tbe Hon. Robert Dougherty. Held: at the present term, that the endorsed note must be proved. 3. The rule is well settled, that.a judgment, except as to the fact of its existence, is evidence only as to parties and privies. It follows, of course, that the sheriff’s return on an execution cannot be extended beyond this.

Tried before tbe Hon. Lyman Gibbons. Assumpsit by Moseley, as administrator with tbe will annexed of Louisa Laurandine, against tbe plaintiff in error, to recover tbe bire of a certain slave alleged to have been hired to defendant by plaintiff’s testatrix. Waring defended on tbe ground, that tbe contract of hiring was made with him as tbe agent of one Robinson.

Thomas A. Walker. Assumpsit by Jehu W. Geron against John P. Mills, for the recovery of a certain sum of money alleged to be due and. owing to plaintiff, under the following state of facts, as disclosed by the bill of exceptions: - In 1889, the defendant was indebted to the plaintiff in the sum of $2858, by promissory note dated October 28, 1889, and payable one day after date; on this note, the sum of $350 ■was paid on the 10th August, 1841, and the further sum of $500, on…

<p>Error to tbe Circuit Court of Limestone.</p> <p>Tried before tbe Hon. S. C. Posey.</p>

EreoR to the Circuit Court of Coosa. Tried before the Hon. JOHN D. PhelAN. This was an action of debt on an administrator’s bond against the plaintiff in error as tbe surety of William E. Hatchett, who was the administrator of Thomas Hatchett.

Tried before the Hon. Robert Dougherty. This was an action of trover, brought by the plaintiff in error against the defendant in error, to recover for the value of a certain amount of cotton claimed by the plaintiff. On the trial, a bill of exceptions was allowed, by which it appears, that both the plaintiff and defendant claimed title in the cotton through one J. W. Barrow.

EBRO® to the Circuit Court of Choctaw. Tried before the Hon. Lymah GibboNS. Trespass bj Wedgworth et al. against Tankersly, to recover damages for injuries done to plaintiff’s hogs. cited Blackburn v. Baker, 7 Porter 288; Brown v. Bristol, 1 Cowen 176.

Tried before the Hon. Ezekiel Pickens. George M. Biddle & Co. sued the plaintiff in error before a justice of the peace, on an open account for a sum less than twenty dollars, and recovered a judgment. The defendant appealed to the Circuit Court; and on the trial in that court, no statement having been filed, plaintiffs offered evidence to show that the firm of Geo. M. Biddle & Co. was composed o£ George M. Biddle and Elias B. McClellan.

Ekeoe to the Circuit Court of St. Clair. Tried before the Hon. Thomas A. Walker. This was an action of assumpsit by the defendant in error against the plaintiff in error, to recover the amount of a promissory note for $200, made by the defendant and one Burwell Sellars.

<p>1. In assumpsit against the endorser of a note not payable in bank, it its erro-roneous to render judgment by default without the intervention of a jury, either under the common counts, or a special count which contains no averment of suit against the maker, and no allegation dispensing with the necessity for such averment.</p>

Eeboe to the Circuit Court of Limestone. Tried before the Hon. Thomas A. Walkeb. Addison H. Binford, the plaintiff in error, made a final settlement in 1848, with the Orphans’ Court of Limestone, of his guardianship of Robert H. Binford, the defendant in error.

Tried before tbe Hon. Thomas A. Walker. Assumpsit by Hickman against tbe plaintiffs in error, as busband and wife. Tbe declaration contains two counts; one upon a promissory note made by tbe wife during coverture, with tbe allegation that tbe consideration of tbe note was goods, wares and merchandize, furnished to the family of defendants’ as supplies, such as were suitable and adapted t,o their degree and condition in life.

<p>Error to the Circuit Court of Choctaw.</p> <p>Tried before the Hon. JOHN Bragg.</p> <p>Assumpsit by the plaintiff in error against the defendant, as administrator of James W. Earle, deceased.</p>

<p>X. The act of February 11, 1850, confers upon a judge of probate power to “ grant” a certiorari; and when the writ is issued and signed by him, it is operative as hisjiai, even if he has no authority to issue it.</p> <p>2. The writ of certiorari itself is simply the means by which the ease is. removed to the Circuit Court, and it may be dispensed with by the parties without affecting the jurisdiction of the court.</p> <p>3. When the plaintiff files his statement in the Circuit Court, and continues the cause, it is an admission on his part that he is rightly in court, and he cannot afterwards object to the certiorari.</p>

Tried before the Hon. JOHN Bragg. This was an action commenced by the defendant in error against the plaintiff in error, before a justice of the peace in Choctaw county. The justice gave j udgment for the defendant, and the plaintiff appealed to the Circuit Court. On the trial in the latter court a judgment was rendered against the plaintiff in error for five dollars.

Tried before the Hon. John D. Phelan. This was an action of debt on an administrator’s bond, in the name of the judge of the County Court, for the use of Isaac P. Pond, against the plaintiff in error, as the surety of William E. Hatchett..

Tbe record does not show tbe name of tbe presiding judge. MOTION by tbe defendants in error for a summary judgment, under tbe act of 1819, (Clay’s Digest 206 § 22,) against Job M. Williams, as sheriff of Perry county, and bis sureties on bis official bond, for bis failure to return an execution according to law. Tbe notice of tbis motion was issued on the 5th of November, 1846, and was served on Williams on tbe 7th of November, 1846.

This was a proceeding commenced before a justice of tbe peace, and brought to tbe County Court by appeal. It appears that White, having a judgment before a justice of tbe peace against George M. Ilardwicke, executor of Geo.

Tried before tbe Hon. JOHN Bragg. EjectmeNT for a lot of land situated in tbe city of Mobile, being a portion of tbe lands reclaimed from tbe river. Held: without disturbance or objection from Kennedy or his representatives, since; that if this line was extended, without deflection, to the channel of the river, it would embrace the premises sued for; and also offered evidence conducing to show that such Avould have been the case in 1807 and in 1819.

Erroe. to tbe Circuit Court of Mobile. Tried before tbe Hon. LymaN GibboNS. Held: for ten consecutive years, a tract of land not claimed by any other person; 3. That he had possession at the date of the act. The register and-receiver reported favorably on the claim to Congress, according to the act.

Ebror to the Chancery Court of Mobile. Heard before the Hon. J. W. Lesesne. This bill was filed by the plaintiff in error against L. M. Wilson and the P. & M. Bank.

Tried before the Hon. LymaN Gibbous. . Assumpsit by George Westfeldt against Augustus A. Winston, on a promissory note for $2156xyv executed by said Winston and others, dated June 13,1848, payable three years after date to the order of Jonathan Bliss, negotiable and pay-v. able at the Bank of Mobile. The plaintiff declared as endor-see of said Bliss.

Tried before tbe Hon. Alex. McKinstry. Tbe plaintiff in error was indicted, at tbe September term, 1850, of tbe City Court of Mobile, for an assault and battery on one Isabella King. Held: that the Circuit Courts have the power to supply a new record, where the original has been lost; and that this power is independent of express legislation. 8 Porter 309; 19 Ala. 710, and cases there cited.

Heard before the IIoN. J. W. Leseske. This bill was filed by the defendant in error, alleging, that, in 1835, one Alexander Colvin departed this life, leaving a last will and testament, of which his wife and widow, Mary J. Colvin, and Timothy S. Colvin, his brother, were the executor and executrix; that they both qualified and acted as executor and executrix for several years; that the heirs and legatees of the said Alexander were, the widow and executrix as above stated,…

Tried before the Hon. John Gill .Shorter. This was an action of debt by the plaintiffs in error, to recover of McArn the amount of a judgment which they had obtained against him in the Circuit Court of Montgomery county, for the sum of $1965. The defendant pleaded his discharge in bankruptcy, in bar of the suit.

Ebbob to tbe Chancery Court of Mobile. Heard before the HoN. J. W. LesesNE. The complainants, Warren Bentley and Cecilia, his wife, and Lewis Young, a minor, who sues by Edward Parker, his next friend, set out in their bill that said Cecilia and Lewis are the only heirs at law and distributees of the estate of Lewis Young, deceased, a free man of color, who was a resident of the city of Mobile, and who died intestate in the year 1834.

Ereor to tbe Chancery Court of Wilcox. Heard before the Hon. J. W. Lesesne. This bill was filed by the defendant in error, against the intestate of the plaintiff in error, to redeem certain lands which had been sold, in 1844, by the United States marshal of the Southern District of Alabama, under an execution issued on a judgment rendered in March, 1840, in the Circuit Court of the United States for said Southern District.

<p>Eeror to tbe Court of Probate of Lowndes.</p>

Tried before the Hon. JOHN A. Cuthbert. The appellants commenced a suit by attachment against John A. Stainton, as a non-resident, and summoned the ap-pellees, as administrators with the will annexed of John Stain-ton, deceased, as garnishees.