Volume 23 — Alabama Reports

Tried before the Hon. John Gill Shorter. The plaintiff in error, William J. Holmes, was indicted for an assault and battery on one Anderson, and was convicted.

<p>X. An order of court for a eliange of venue, which recites that, by consent of parties made in open court, it is agreed that the cause shall go to either one of two specified counties at the election of the plaintiff, is incomplete, until the plaintiff has made his election between the counties named, and the court has acted on his election by ordering the papers in the cause to be transmitted by the clerk to the county so chosen.</p>

Tried before the Hon. Nathan Cook. The plaintiff in error, John Carroll, was indicted for the murder of one John Key. On the trial, the State introduced evidence tending to prove that the deceased was found dead at the house of the prisoner, and that he came to his death from gun-shot wounds.

<p>Appeal from the Circuit Court of Marion.</p> <p>Tried before the Hon. B. W. Huntington.</p>

Tried before the Hon. Geo. D. Shortridge. The plaintiff in error, John Seitz, was indicted for an assault with intent to murder one Tabitha Lookingbill.

Tried before the Hon. Robert Dougherty. James H. Campbell, the plaintiff in error, was indicted in the Circuit Court of Cherokee, at the Spring term thereof, 1851, for the murder of Martha Garrett. Held: commencing on the fourteenth day of June, 1852, for his trial; at which time he was tried and convicted, the trial lasting two weeks, and was sentenced by the court, on the finding of the jury, to the penitentiary for life.

<p>Error to the Circuit Court of Macon.</p> <p>Tried before the Hon. Robert Dougherty.</p> <p>Hilliard & Thorington, for plaintiff in error.</p>

Clair. Tried before the Hon. Thos. A. Walker. This was a proceeding in bastardy, commenced against Castleberry as the putative father of a bastard child, then likely to be born of Sarah Claunch.

Petition by John Whitehead for the writ of Habeas corpus and such other remedial .process as may be necessary to obtain his discharge for an alleged illegal confinement in the jail of Choctaw County,

This was an application for a writ of prohibition, or any other remedial process within the jurisdiction of this court to grant, for the purpose of arresting certain proceedings had upon the order of the Hon. J, W. Lesesne, Chancellor, in vacation, upon a bill filed by Sarah 0. Smith against her husband Morgan Smith, the relator, in the matter of appointing a receiver.

Tried before the Hon. Geo. D. Shortridge. The facts will sufficiently appear from the opinion of tho court. 1. The declaration should show that there was an order of the court in which the chancery suit was pending, dismissing tho bill, and that the defendant have leave to bring suit on the injunction bond, and an order that defendant have leave to withdraw the bond for the purpose of bringing suit on it. 2.

John E. Moore. This was a rule against the defendant in error as sheriff, for failing to make the money on an execution in favor of the plaintiff in error against one Campbell, returnable on the second Monday in March, 1850.

Tried before the Hon. Andrew B. Moore. John Walker and the other defendants in error, who are his brothers and sister, filed their petition for freedom, under the statute of this State, against the… Held: that the question of slavery ml non could not be tried under a writ of habeas corpus, and the court expressly disclaimed any intention of deciding this question.

Tried before the Hon. Lyman Gibbons, This action was commenced at the Fall term, 1846, of the Circuit Court of Mobile, by a notice of motion in the name of the Planters’ and Merchants’ Bank against the plaintiF in error, for a summary judgment on two notes executed by said Jemison, each for the sum of $4,189 75, with interest from the first day of January, 1842, dated Columbus, Mississippi, April 5, 1842, and payable to the order of Eli Abbott, one on the first day of…

Petition for a mandamus to the Circuit Court of Benton, commanding said court to vacate a certain judgment rendered at the Fall term, 1852, Hon. Thos. A. Walker presiding. It appears from the record attached to the petition, that Eli M. Driver commenced an action of ejectment in said court, against one Alexander as tenant in possession, for the recovery of certain lands.

Tried before the Hon. John D. Phelan. Detinue by Matilda Mason, suing by her next friend, against the executors of John McNeill, deceased, to recover certain negro slaves alleged to be in their possession, which they claim as belonging to the estate of their intestate. The suit appears to have been a friendly one, brought to test the right to the property.

Heard before the Hon. W. W. Mason. The complainants below, who are also plaintiffs in error, set forth that they are children of Nelson Andrews, and as such beneficiaries in a deed of trust executed… Held: that a trustee may purchase from a cestui que trust, even at private sale, if no unfairness appear. — 9 Vesey 285. In some of the courts it is held, that a trustee should apply to a court of chancery for leave to buy at his own sale. — 6 Vesey 682 ; 2 Johns. 252.

Tried before the Hon. John A. Outhbert. Ejectment for a lot of land in the city of Mobile. The declaration laid joint and several demises from Oscar Kennedy, Charles S. Shrieve and Mary, his wife, and Ella Walker, said Oscar, Mary and Ella being the heirs at law of Joseph Kennedy. The defendant having entered into the consent rule, and admitted possession of a portion of the land sued for, the counsel of the respective parties agreed on the 'following case : “1.

Heard before the Hon. W. W. Mason. Alexander Burns filed his bill of complaint against the defendants in error, alleging that he held two… Held: and paid him $4000 for the land; that $600 of this sum was paid in cash, and the balance of $3400 was credited on a note which respondent held ou said Job Jr.; that in May, 1840, complainant informed respondent that he was going to leave said lands, and advised respondent to get some one to take possession for him, and willingly…

Tried before the Hon. Nathan Cook:. Detinue by the plaintiff in error, William E. Bird, as administrator de bonis non, with the will annexed, of Robert Gantt, deceased, against the defendant in error, for the recovery of a negro man slave, named Phil, alleged to have been the property of said testator in his lifetime, and of which he died in possession. The picas were, non detinet and the statute of limitations. Verdict and judgment for the defendant below.

Heard before the Hon. J. W. Lesesne. This proceeding was commenced on the 16th May, 1851, by bill in equity, filed by Henry W. Clements, administrator of Joshua Clements, and after his removal from the office of administrator, revived in the name of Tlios. T. Bolling, the administrator de bonis non, against the plaintiffs in error, on the 24th day of November, 1851.

<p>1. When it vendor represents his title to be good, it is equivalent to saying that lie has a perfect ti.ie to tho entire tract, unaffected by any gaps in tho chain of title, or any defect or incumbrance whatever.</p> <p>2. A court- of equity will rescind a contract of sale at the instance of the vendee, and restore to him the purchase money which he has paid, whenever the contract is tainted with falso and fraudulent representations on the part of the vendor relative to tiie title; and for this purpose, the whole conduct of the vendor in relation to the matter ma.y be looked to.</p> <p>3. If tho contract, is made under a mutual mistake as to the vendor’s title, the vendee is entitled to a rescission, if he seeks it within a reasonable time after the discovery of the mistake, and abandons the possession, delivering or offering to deliver it to the vendor.</p> <p>4. The vendee’s right to a rescission in such ease does not depend on his payment or tender of the purchase money, nor upon the vendor’s insolvency, but upon his own promptness in seeking a rescission.</p>

<p>1. The deod of husband and wife leasing the wife’s interest in land, unless acknowledged by her on private examination pursuant to the statute, (Clay’s Digest 155 § 27,) is absolutely void as to her, and incapable of confirmation, except by acts amounting- to a re-delivery.</p> <p>2. The husband’s assignee for valuable consideration is not entitled to the wife’s choses in action, as against her surviving, unless he reduces them into possession during the coverture.</p> <p>3. An executor’s assent to a legacy may be inferred from any act or expression on his part clearly recognizing the legatee’s present right to receive it.</p> <p>4. But where the executors and legatees enter into a written agreement with another person, who afterwards takes out letters of administration, by which they transfer the entire estate to him for a term of years, to be by him managed aad retained until the debts are all paid, this does not amount to an assent to the legacies on the part of the executors.</p> <p>5. When au administrator is cited by the Court of Probate to make final settlement, he cannot protect himself by plea setting up a written agreement, entered into between himself and the executors and legatees before letters of administration were granted to him, by which they transferred to him the entire estate for a term of years, to be by Mm managed and retained until all the debts were paid, and averring that he took possession of the estate and held it under the agreement, and not by the order of the court; such plea is bad on demurrer.</p>

Tried before the Hon. George Goldthwaite. Assumpsit by John H. Newton against Henry M. Jackson, on a note for $347 25, dated December 6, 1843, and payable on the 1st January, 1845, with interest from January 1, 1844.

Heard before the Hon. J. W. Lesesne. This bill was filed by the appellant against the appellees, seeking a re-conveyance of one half of a certain lot in the city of Mobile to the complainant, and for an account of the rents of the same for a series of some nine or ten years.

<p>Error to the Circuit Court of Mobile.</p> <p>Tried before the Hon. Lyman Gibbons.</p> <p>This was an action of forcible entry and detainer, brought by Walker against MeGonegal, to regain possession of certain premises described in the complaint, situated in the city of Mobile. The plaintiff, proving unsuccessful before the justice, took the case before the Circuit Court by certiorari, in which he obtained a verdict and judgment in his favor.</p> <p>Upon the trial a hill of exceptions was sealed, by which it appears that the plaintiff introduced one James Murphy, who testified that, while the plaintiff was erecting a fence between his lot and the lot of the defendant, the said defendant came with a party of men, and after using threatening language to the plaintiff, swearing that he would have possession of the lot, and that if he were to serve the plaintiff right, he would split his head, then pulled up the posts and tore down the fence which the plaintiff had erected, and moved the fence so as to take about 16 feet in width by 140 in depth of plaintiff’s lot; that at the time of using the threatening language the defendant had an axe in his hand. He also testified that one Blackball was, and for some time had been, in possession of the lot claimed by the defendant.</p> <p>' Maurice Murphy, another witness, stated that previous to the difficulty there had been an old fence dividing the lots claimed respectively by the parties. The old fence run hack from the front about 120 feet, the depth of the lots being about 140 feet; said fence was very much dilapidated, so that passage could easily be had through it. This witness was present when the defendant came and tore down the new fence, removed the posts &c. to near the line of the old fence, but within such line so as to include two or three feet of the plaintiff’s lot between the line of the new fence and the old.</p> <p>Mrs. James Murphy testified, that she was in the house on plaintiff’s lot when defendant and his party came; that the plaintiff had lived in the house some two months ; that previous to that time, one Mrs. Cotton had resided there as tenant, but had attorned to the plaintiff; that when the defendant came his language was violent; that he pulled up the plaintiff’s fence, and re-constructed it on a different line, and in so doing had taken some sixteen feet of the plaintiff’s lot.</p> <p>Patrick Byrne testified, that the plaintiff had been at work in erecting the fence some two weeks before the defendant came and tore it down ; that the plaintiff had completed about 100 feet thereof.</p> <p>One Flanery testified, that he, with the plaintiff, defendant and other proprietors of adjacent lots, agreed to employ a surveyor to run off the lines of the respective lots, so that each might know where to put his fence; that the several parties interested had deposited money in his hands to employ such surveyor; that he employed one Dean Knox, the city surveyor, who, in the presence of the parties to this suit, and previous to the controversy, surveyed the same, and the line then run between the plaintiff and defendant’s lots was that on which the plaintiff was erecting his fence; and that the line on which defendant placed the fence after taking it up, enclosed some 16 feet of the plaintiff’s lot, as surveyed by said Knox. Knox was also examined, and sustains Flanery ; says the line he run was according to instructions given and descriptions furnished, and that he run the line between the lots of these parties at their request.</p> <p>One Dalton testified, that Blackball was in possession of defendant’s lot, as his tenant, but never had all the lot as now embraced by the fence ; that, in removing the fence, the defendant took two or three feet more than was embraced by the old fence, to which Blackball previously claimed.</p> <p>Joshua Kennedy proved, that he had owned both lots, and had sold them to the parties; that the sale to the plaintiff was prior to that made to the defendant; that the lot of plaintiff, at the time of sale, was occupied by Mrs. Cotton,-who was told to attorn to the plaintiff, and who did attorn.</p> <p>The plaintiff here rested his case.</p> <p>The defendant then proved by one Blackball, that he, the witness, had been in possession of a part of the lot in controversy for about fifteen months ; that he first rented from Kennedy, and after occupying some time was informed by him that he had sold to McGonegal, and he attorned to the latter; that he has since held the possession as MeGonegal’s tenant; that some days after the lines were run by Knox, the plaintiff, Walker, informed witness that he intended to tear down the fence that divided said lots, and to run it according to the line as surveyed; this the witness communicated to tho defendant, who caused a written notice to be served upon the plaintiff, forbidding his doing so ; that soon after this, the plaintiff tore down the old fence, and part of a stable situate on the premises which the witness had in his possession, and began to construct the fence on the line run by Knox; that tho defendant, in company with three persons, came to the place while the plaintiff was building the fence — pulled up the posts, and put them over on plaintiff’s lot, and re-constructed the fence where the old one had run; that the fence run one hundred and twenty feet, the lot being' one hundred and forty feet deep ; that after the plaintiff removed the fence, witness lost possession of a portion of his lot, but when the defendant re-constructed the fence on the old line, he regained possession and has ever since held it.</p> <p>Another witness testified, that he went upon the ground when defendant pulled up the posts, and that said defendant used no violent language or violence upon the occasion.</p> <p>It was also proved by Muchi and McVatal, that they went with McGonegal when he took possession; that he used no threats or harsh language to the plaintiff or any one else ; that when the defendant got upon tho ground, Walker was at work, putting up the posts; McGonegal said to him in a quiet manner, “You are busy at work; it is useless for you to put that fence up, for I am going to take them posts up and put them over on your own ground. You have already been notified not to touch the fence, that I was in the peaceable possession of this ground, claiming title to the same that Walker replied, “ Very well, that is all I want you to do. I will see ¿further about it,” and then walked off and left the premises. They also state that McGonegal had no weapons.</p> <p>The circuit judge charged the jury, that if the parties to the suit were proprietors of adjoining lots, between which the piece of land in dispute was situated, and that the boundary line between said lots was undefined, and the ground upon the line was used as common property by the mutual proprietors, and they agreed to call upon a surveyor to give them their lines in order to fix the exclusive possession of each, and that those lines, so to be ascertained, should determine the exclusive possession of each, and that if, in pursuance of such agreement, a survey was had, and that the plaintiff had gone into the exclusive possession of the ground now in dispute according to the line ascertained by said survey, and being so in possession, the defendant entered upon him and turned him forcibly out of possession, then the defendant was guilty; but if, on the other hand, the possession of the tenants holding the said lots prior to the purchase by plaintiff and defendant from Kennedy, was one well defined by a fixed boundary line, and that the plaintiff and defendant took the possession of the property as it existed with the tenants at the time of their purchase, and that the possession exists now as it existed in the tenants occupying the premises before them, then the defendant is not guilty,</p> <p>2. The court charged the jury further, that if the possessions of Mrs. Cotton and Blackball were fixed by a definite line, then neither the plaintiff nor defendant had a right forcibly to disturb the possession of the other, and if he did he would be a trespasser; that if Walker, in building his fence, violated the possession of Blackball, the tenant of MoGonegal, the latter had a right to stop the trespass by force, even before it was consummated, and restore the old lines, and if the defendant did this only, he was not guilty. On the other hand, if the new fence put up by the defendant was not upon the old line, but encroached upon the plaintiff’s lot, then the defendant was guilty to the extent of that encroachment.</p> <p>3. That if the plaintiff, under the evidence and the law as above given in charge, was entitled to the possession of the premises in dispute, or any part of them, then the moving of the plaintiff’s fence in the manner shown by the proof was suff ficient force to maintain the action ; but, on the other hand, if the defendant was entitled to the possession, the removing of the plaintiff’s fence by the defendant as shown in proof, was justifiable as repelling a trespass not then consummated.</p> <p>4. The defendant’s counsel asked the court to charge the jury, that if they believed Blackball was in the possession of said lot of defendant, prior to his purchase from Kennedy, and that said Blackball attorned to defendant upon said purchase, and that defendant was not otherwise in possession of said premises, then, although they should find that the defendant, as landlord of said tenant, had forcibly entered and ejected said plaintiff, yet, if he immediately gave up the possession thereof to his tenant, who has held the same ever since, the action should have been against Blackball, the tenant in possession, and will not lie against the defendant. This charge the court refused to give,_ and instructed the jury that, under the evidence, the action was against the proper party.</p> <p>To the several charges given, and to the refusal of the court to charge as requested, the counsel for the defendant excepted, and here assigns the same for error.</p> <p>The action is founded on the statute in Clay’s Digest 250 §2. The evidence shows that McGonegal had not the possession, nor the right of possession; the lot was held by his tenant, and that, too, under a contract of lease entered into long before his entry, and then not ended. It was held by said tenant, who had the actual possession, at the time of demand made, and at the time suit was brought. To constitute the of-fence of forcible entry and detainer, there must bo a detainer, as well as an entry. The action is merely for the possession, and cannot be maintained against any one who has not the actual possession. — 6 J. J. Marsh. 602; 3 A. K. Marsh. 328; 3 Halstead 48 ; 5 Gilman 218 ; 2 Dana 245 ; 9 Ala. R. 509.</p> <p>Though the possession of the tenant is, in contemplation of law, the possession of his landlord, yet the tenant alone, during his exclusive tenure, is actually possessed: he alone can sue in trespass, for an intrusion on the possession, and consequently would bo entitled to the restitution of possession after disseizin, and the landlord could not maintain the warrant in his own name. — 6 J. J. Marsh. 602. It follows necessarily that the action cannot be niaintainod against one, when another has the actual possession. If McGonegal had held the actual possession at the time of demand made, or suit brought, and afterwards his tenant had taken possession before a writ of restitution issued, then the sheriff could have legally turned him out, but not otherwise. — 2 Bay’s R. 855. McGonegal was, at most, but a trespasser, and might have been so treated.</p> <p>The first charge is not predicated upon the evidence. It assumes, in effect, that there was no defined line between said lots, when, in point of fact, all the witnesses who spoke of the old fence say, that it extended back 120 feet, and that Blackball, the tenant, had and held the possession to said fence, until it was torn down by Walker : and Blackball testified, that it ivas the recognized line between said lots. Another objection to the charge is, that, in effect, it asserts that, if A enters upon B’s premises, and forcibly turns him out of possession, he is guilty of a forcible entry and detainer, though he does not hold the possession for a moment, but walks off'immediately and remains away. — See 2 Douglass’ R. 368, 872; 1 Caine’s R. 125; Clay’s Digest 250 § 2,</p> <p>The third charge refers to the jury the decision of a question of law. — 3 Ala. R. 287. There was a conflict in the evidence, in regard to the maimer of removing the posts by McGonegal; yet the court charged, that the removal of the posts, in the manner shown by the proof, was sufficient force to maintain the action. Would it have been sufficient, supposing the evidence adduced by the defendant to bo true ?</p> <p>The charge asked by defendant’s counsel should have been given. — 5 Gilman’s R. 218 ; 2 Doug. R. 368 ; ib. 372.</p> <p>The case of Matlock v. Thompson, 18 Ala. R. 600, and the authorities there cited, have no application to this case; that action was founded on the act of 1848, for a forcible and unlawful detainer.</p> <p>The record shows that, when the proceeding before the magistrate was instituted, McGonegal hold the lot in his own possession. These proceedings were read on the trial below, and are made part of the bill of exceptions. In addition to this, the testimony adduced by the plaintiff below shows, that McGonegal forcibly entered on the premises, and detained them. The testimony of Blackhall shows, that McGonegal treated the possession as his own. The evidence must be regarded as establishing the fact that McGonegal forcibly entered the premises ; and his refusal to surrender, upon demand, must bo held to constitute a forcible detainer under the statute. It is admitted that, when the entry is peaceable, the mere refusal to surrender on demand will not constitute a forcible detainer; but, it is insisted, that such refusal, after an entry with force, will maintain the action. After such an entry, the bare retention of possession will he a retainer. — -5 Gilman 222. The refusal to surrender, after the circumstances of the entry, tended to excite terror in the plaintiff, and prevent him from maintaining his rights. — 10 Mass. 403.</p> <p>The reconstruction of the fence (as it is termed) by the de - fendant, after his expulsion of the plaintiff, shows that he must have continued in possession, and there is every presumption in the record that he held the actual possession at the time. the summons issued. The substitution of a tenant, after the acts of force, will not defeat the action. — 2 Bay’s R. 355.</p> <p>That the court did not err, as to the question of force necessary to sustain the action, see Clay’s Digest 250 § 2 ; 9 Ala. 509 ; 18 Ala. 600.</p> <p>The agreement between the parties to have their lots surveyed shows that the old line was undefined, and therefore the first charge of the court below was correct.</p> <p>The third charge is not obnoxious to the objections made by plaintiff in error, and bears no analogy to that given by the court in Pharr & Beck v. Bachelor, 3 Ala. 237. In the charge complained of, there was no conclusion of fact from a question of law, nor any reference of the law to the decision of the jury. The charge is, in effect, that, upon the law as previously charged, if the jury believed from the evidence that the plaintiff was entitled to the possession, then the moving of the fence &c. was sufficient to maintain the suit. The charge may, perhaps, be an ungrammatical arrangement of words, but it is not a legal error.</p> <p>The court properly refused to give the charge asked, as it had no sufficient predicate in the evidence.</p>

<p>1. An attachment does not lie, under the statutes of this State, against a domestic executor or administrator, whose testator or intestate at the time of his death was a resident of this State.</p> <p>2. Such an attachment, when issued by a justice of the peace, is not merely voidable, but void, and operates no lien on the property attached.</p> <p>3. On the trial of a claim suit under the statute, tho record of the plaintiff’s judgment against tho defendant in execution, is irrelevant and inadmissible.</p>

<p>Error to the Circuit Court of Greene.</p> <p>Tried before the Hon. Andrew B. Moore.</p> <p>Detinue by Alexander Lawson, as administrator of Elijah Lawson, deceased, against Thomas T. Tyree, executor of Amos Lay, deceased, for several slaves, one named Isaac, another named Martha, and the others her children. The defendant pleaded : 1, JVora detinet; 2• The statute of limitations of six years ; 3. That the slave Martha had died since the last continuance. The plaintiff joined issue on the first plea, replied specially to the second, and demurred to the third ; and the demurrer was sustained. It is unnecessary to notice the other pleadings, as they do not enter into the opinion of the court.</p> <p>On the trial, the plaintiff introduced Elziabeth Lay as a witness, who testified, on voir dire, that she was the widow of said Elijah Lawson, deceased, and had by him three children then living; that said Lawson died in 1828, in Greene County, Alabama; that in 1832 she married said Amos Lay, the defendant’s testator, who had children then living by a former wife, and that she had three children by him, all of whom were living; and that the estate of neither of her said husbands had been declared insolvent. Upon this state of facts, the court decided that she was a competent witness, and the defendant excepted.</p> <p>Upon her examination in chief this witness testified, that at the death of her first husband, said Lawson, she was left with three small children, the oldest seven, and the youngest three years of age; that in 1828 Sanderson, his administrator, sold at public auction, to the highest bidder, the girl Martha, who was then about six years old; that she became the purchaser at this sale, and took the girl Martha into her possession, claiming her as her own property, and kept her until her marriage with Lay in 1832 ; that said girl went into Lay’s possession on his marriage with witness, and was held and claimed by him from that time until his death, which occurred in Greene County, Alabama, in 1851; that said girl then went into the possession of the defendant, as his executor; that the other slaves now sued for, except Isaac, were the children of said Martha ; that upon said sale and purchase of said Martha, witness did not give bond with approved security for the purchase money, nor did she give any note or obligation in writing; that the administrator did not ask or require any at the time, nor has he since asked or required any ; that she has never paid the purchase money of said slave, nor has she ever been aske.d to pay; that said Sanderson continued to act as administrator of said Lawson until his death, which occurred in 1834, never having made a final settlement or distribution of said estate ; that the slave Isaac was the property of said Lawson at the time of his death, and was never sold by said administrator, but was left by him with witness to help to raise and support her said three children by Lawson ; that said administrator had never demanded said slave either of her or her second husband, Lay, and that said slave was so held until the death of said Lay.</p> <p>The plaintiff also proved, that there had been no administra- . tion on the estate of said Lawson from the death of Sanderson, in 1834, until August, 1851, when letters of administration de bonis non were granted to plaintiff.</p> <p>It was further proved that said order of sale, under which said Martha was sold, was made after the grant of letters of administration to said Sanderson, and was as follows :</p> <p>“ Orphans’ Court, September Term, 1828.”</p> <p>“ Ordered by the court that Lemuel G. Sanderson be authorized and required to expose to sale so much of the personal property belonging to the estate of Elijah Lawson, deceased, as shall be sufficient to pay the debts due from said estate, oh giving such notice by advertisement as the law requires, on a credit of six months, to the highest bidder at public vendue, except the crop, and that he permitted to sell that at public or private sale as to him may seem best.”</p> <p>Upon this state of facts, the court charged the jury, that, if Mrs. Lay failed to give bond or note with approved security, for the girl Martha, it was not a compliance with the terms of sale, and the sale was void as against the plaintiff, and that the statute of limitations intei'posed no bar to a recovery ; that, as to the slave Isaac, uo demand previous to the issue of the writ was necessary to entitle the plaintiff to his right of'action ; but, unless lie ruado such demand, he was only entitled to hire from the issue of the writ. To this charge the defendant excepted, and asked the court to give several other charges, which it is unnecessary to set out, as the opinion is based on the charge given.</p> <p>The rulings of the court upon the pleadings and evidence, as above shown, and the charges given and refused, are here assigned for error.</p> <p>1. Elizabeth Lay, being the widow of Elijah Lawson, deceased, and a distributee of his estate, was incompetent on the ground of interest to testify for his administrator ; and her interest appearing, the party offering her must show that her interest is balanced; and this is not done by showing that she was also the widow of defendant’s testator, and that she had three children by each husband, especially when it appears that her last husband, against whose estate she is offered, has other children living. — 10 Ala. 900; 6 Ala. 656.</p> <p>2. That part of the statute which requires purchasers at administrators’ sales to give u bond with approved security,” (Clay’s Digest 223 § 13,) is directory merely, and not mandatory ; and therefore the sale made by Lawson’s administrator in 1828, being under an order of the Orphans’ Court, at public auction, after notice given as required by law, (if, as insisted by defendant in error, the administrator delivered the property to the purchaser,) was a good act of administration, and divested the estate of the title to the girl Martha: it was not rendered void by her failure to comply with the terms of the sale, by giving bond with security. Such was the doctrine held applicable to sheriffs’ sales, who, like administrators, are only authorized to sell for the purposes and under the restrictions imposed by law. — 3 Strobh. 217 ; 8 Ala. 153. If that clause be held to be mandatory, it must be strictly pursued, and no substitute to which the parties may resort can be effective to pass the title, although the interest of the estate may be equally protected in the particular case. — Humphries & Wier v. Davis, 4. Ala. 443, where it was held, in a case w'here the administrator had sold the property at private sale, in violation of the inhibition of the statute, that the sale was void, and conveyed no title, although the interest of the estate was fully protected, the property having been sold for a full price, the purchase money received, and applied in due course of administration. But we hold, that this question has, in effect, been passed upon, both by this court and in Mississippi, where a like statute is in force. In Kavanaugh & Wife v. Thompson & Wife, 16 Ala. 817, where an administrator had sold property at private sale, it was held, that he was chargeable on final settlement, at the election of the distributees, with the value of the property, because by his illegal act he had been guilty of a conversion. But in Dean & Wife v. Rathbone’s Adm’r, 15 Ala. 333, where the administrator had sold the property, and permitted it to be carried out of the State, and six months afterwards took the bond of a third person, with security, which proved insolvent, this court held the administrator not chargeable on final settlement with the amount so lost, because, as the court held, he had acted in good faith and with due diligence. But, if this provision of the statute is mandatory, his failure to take bond and security from the purchaser, upon the delivery of the property, was a violation of law, and, under the decision of Kavanaugh v. Thompson, supra, would have rendered him liable, at all events, for any loss which the estate might sustain thereby. Again ; if that clause of the statute is mandatory, a sale contrary to its provisions is void.— Fambro v. Gantt, 12 Ala. 298; Smedes’ Digest 255 §218. And the vendee, although in possession of the property, can resist the payment of the purchase money. But in 1 Smedes & Mar. Ch. 172, where the administrator had taken the notes of a third person, endorsed to him, upon the sale of property belonging to the estate, the court held that the payment of the purchase money could be enforced, and set up a statutory lien on the property for that purpose, which could not have been done if the sale were void. And this court has often held that a purchase by an administrator at his own sale, where it is impossible in the nature of things that bond with security can be given by the purchaser, is valid, and vests the title to the property in the purchaser.</p> <p>3. As we understand the facts disclosed in the bill of exceptions, Sanderson did not consent that Mrs, Lawson should take possession of the girl Martha, or in any way waive his rights in that behalf; nor was it submitted to the jury to find how the facts were in this respect, but the charge of the court was upon grounds wholly independent of any considerations of this kind, and rested simply upon the fact that the purchaser did not comply with the terms of the sale. The .administrator, then, having sold the property in comformity with the provisions of the statute, and done nothing, so far as the record discloses, to estop himself from suing the purchaser, either for the purchase money or the slave, if she failed or refused to comply with the terms of the sale, a right of action then accrued to him. — 3 Strobh. 217; 8 Ala. 153. And as the statute of limitations then commenced to run against him, the slave being thereafter held adversely to him and all others, it was not arrested by his death in 1834.— 3 Stewart 180; Lee v. Leaehman, 22 Ala. 452.</p> <p>4. At the time of the marriage of Amos Lay with Mrs. Lawson, in 1832, she was holding and claiming the slave Martha as her own property, and by virtue of the marriage he became, in law, a bona fide purchaser of the property for valuable consideration, and without notice, and is therefore entitled to protection, — Sterry & Wife v. Arden, 1 Johns. Ch. 261.</p> <p>5. The statute of limitations not only bars a recovery of personal property, but, in favor of a bona fide purchaser, absolutely changes the title thereto. — Howell v. Hair, 15 Ala. 198 ; Jones v. Jones, 18 Ala. 253, and cases there cited. It may, therefore, be well set up by way of plea, or relied on as a muniment of title under the general issue; and in this case, the record shows that there was no demurrer to plaintiff’s second replication to the plea of the statute.</p> <p>6. If it were true, as contended by defendant in error, that the sale by Sanderson to Mrs. Lawson was illegal and void, then it did not divest Sanderson of the legal title to the property, for a void act cannot divest any one of title; and being held and claimed by Lay, a bona fide purchaser for valuable consideration without notice, as his own property, in opposition to Sanderson’s legal title, and adversely thereto, from, the time of his marriage in 1832, his title will be perfected by the mere lapse of time, (Howell v. Hair, supra;) and the fact that Sanderson had, by his own voluntary illegal act, created an estoppel to a recovery by himself, cannot deprive a bona fide purchaser of his legal right to have his title perfected by lapse of time, or bring the case within any of the exceptions of the statute; and courts w’ill not extend those exceptions. — 1 Cowen 35G ; 16 Wend. 572; 17 Ala. 372.</p> <p>7. The Orphans’ Court has plenary jurisdiction over the subject matter of estates of deceased persons; and having jurisdiction, its orders will be presumed to be correct, especially after the lapse of more than twenty years.</p> <p>8. As to the slave Isaac : Detinue will not lie to recover a slave hired out to continue in the service of the hirer until demanded, without a special demand.--1 Stewart 254; 13 Ala. 376 ; 4 Dev. & Bat. 354.</p> <p>9. The unlawful detainer, and not the original taking, is the gist of the action of detinue; and therefore damages can only be recovered from the date of the demand, or from the bringing of the suit if no demand is made. — Tunstall v. McClelland, 1 Bibb 186; 3 Porter 279; 5 Ala. 304; 5 Dana 34; 2 Texas 130.</p> <p>10. The record discloses that the last charge asked by defendant below, was in reference to the hire of the slave Isaac, and asserting, as it does, a correct legal proposition, it should have been given.</p> <p>11. No supposed defect in the order of the Orphans’ Court for the sale of the property, can avail the defendant in error, because, in his fifth replication to defendant’s plea of the statute of limitations, he concedes, the regularity of the order, and relies alone upon the purchaser’s failure to comply with' the terms of the sale.</p> <p>12. In answer to the point made by defendant’s counsel in reference to the pleadings, it will be seen from an examination of the record, especially the judgment entry, that there is no demurrer to the plaintiff’s second replication to the plea of the statute of limitations, but issue thereon.</p> <p>Mrs. Lay was a competent witness. The objector must show that the witness offered has a present, certain, vested interest against him ; if the interest is of a doubtful character, the objection only goes to his credit. The witness being always piesumed competent, it is the duty of the objector to show him incompetent; and if he fails satisfactorily to establish it, the witness is to be sworn. — 1 Green. Ev, 390 ; 3 Porter 433; 3 Gill & J. 351; 6 Ala. 648. When the whole ground of objection is based on what the witness says, all he says must be taken together. — 1 Green, Ev. § 422. Oh the most favorable view for tlio plaintiff in error, neither the court nor the witness could tell which way her interest was. It might take one half of tho recovery to pay Lawson’s debts, while none of the property might be tecpiired to pay Lay’s debts; and thus her interest might, lx* with defendant below, although there wore more distributees of Lay’s estate than of Lawson’s. Therefore, the objector should have shown more than he did. 'Faking all the witness said together, the uncertainty of interest is still more apparent. Both estates wrere solvent, but to what extent, or whether they would close solvent, could not be told.</p> <p>But the interest of the witness was adverse to the defendant in error. If Lawson’s estate recovered, the witness would lose all share of it as a distributee of Lay’s estate, of course ; but if Lay’s estate succeeded, she would get a share of it, or its value, in this way: the property remaining part of Lay’s estate, she would get her share of it; Lawson’s administrator could make Sanderson account for the devastavit, and the sum obtained ■would, in part, be received by her as distributee. — Clay’s Dig. 221 § 4. Again ; should Lawson’s estate recover, Lay’s executor could, by bill in chancery, enjoin her share in it from Lawson’s estate, on the ground that she should not injure the estate by her own wrong, and on the ground that she received the property and should not participate in the fruits of her own wrong. — Weir v. Davis, 4 Ala. 446. This would be so, unless this right was obliterated by her marriage with Lay. If it was, it is shown above that, by plaintiff’s failure to recover, she would get distribution from both estates ; if the right wras not destroyed by marriage to Lay, as said, she would bo enjoined, and prevented from participating in the fruits of the recovery; and this too shows how uncertain, remote and contingent the interest of the witness is either way.</p> <p>As to the merits of the case: The statute of 1809, (Claj^s Dig. 223 § 13,) is not directory, in requiring that the administrator shall take bond with security from the purchaser. If so, every provision, except the prohibition against selling at private sale, is directory ; for, by the same language, in the same sentence, it shall be his duty to apply to the court for and obtain an order of sale, and, on'selling, take the purchaser’s bond with approved security. The following authorities, however, show that the order of sale, and of course taking bond and security, are requisite to a valid sale. — Ven tress v. Smith, 10 Peters 173; Weir v. Davis, 4 Ala. 444; Dearman v. Dearman, 4 Ala. 526; Swink’s Adm’r v. Snodgrass, 17 Ala. 652 ; Fambro v. Gantt, 12 Ala. 298; Steger v. Bush, 1 Sm. & M. Ch. R. IS'L Upon this statute the Supreme Court of Mississippi have made the same decision in many cases.</p> <p>It is said, however, that Steger v. Bush, supra, holds the sale voidable only; but this is not the principle upon which they hold that the statutory lien of Mississippi could be enforced : it is, that the purchaser is estopped from setting up the illegality of the sale. But foreclosing the mortgage is not suing on the debt ; it is a proceeding in rein, to subject certain property because of a lien. — Harbin v. Levi, 6 Ala. 399. Fambro v. Gantt may be opposed to Harbin v. Levi; but it is unnecessary to consider whether it is or not, though I think the two cases reeoncilablo. It is enough, however, to show on what principle Steger v. Bush rested, or might have rested, as to the statutory mortgage, and that it did not rest on the view of the contract’s being merely voidable. Kavanaugh v. Thompson, 16 Ala. 811, is relied on to sustain the position that the sale was only voidable ; but it fails to the point, and only shows that distributees may elect to hold the representative liable for the value of the property.</p> <p>In Dean and Wife v. Rathbone, Í5 Ala. 328, no question was made, because the note of a third person was taken, and hence it was not decided; nor is it important now to consider that question. Because the note and seem’ity of a third person may be taken, non constat that the sale is good without any note or^payment. The possession may be delivered at the administrator’s risk before the terms are complied with, and if they are afterwards complied with the sale may be perfected ; but it does not follow that the sale is good, or only voidable, if never complied with. The record si owe an order of sale by the court, but it does not show that it was u on the application of the administrator.” The order must show everything to sustain the jurisdiction; not doing so, A was void, and the sale was without order of court in fast.-"Olay’s Digest 223 § 13 ; 8 Ala. 614 ; 6 Ala. 110.</p> <p>At common law, a sale could pass no title without compliance with .the terms. Without the statute, however, the vendor might waive the compliance, and deliver the property, and the sale would be good. The statute inhibits that assent, and it does accomplish that, or it io valueless. Being inhibited from making the waiver, it is not an act binding the estate, nor is it an act of administration ; and if not, no title passed.</p> <p>That the construction contended for is the true one, is apparent from the object and design of She legislature. It would he strange to say that a public sale must be made, but it could be done without order of court, and that the whole object of the statute, towit: the protection and security of the estate, might be defeated by dispensing with the lass, the most important, requisition, reaping the fruits of the sale by securing the payment of the money.</p> <p>Cochran v. Roundtree, 3 Strobh. Law R. 211, is relied on to prove that delivery perfects the sale. The case only decides that it does against a sheriff; and conceding the law of South Carolina to be as restrictive as our statute now under consideration, which does not by any means appear, nor is it to be inferred, yet it is nothing but the doctrine of Pistol v. Street, 5 Porter 64. The plaintiff in execution could not re-levy, as is well said in that case, because he had one full levy, and defendant had lost his property by it. Of course he could not make another levy on it, or on any other property of the defendant’s, but must look to the sheriff. The case, therefore, is without analogy; it depends on well settled principles applicable to levies and sheriff’s sales.</p> <p>Defendant below could not protect himself under the doctrine of a bona fide purchaser. The doctrine of sales in market overt has no existence in this country. — Ventress v. Smith, -lOJPeters 173; Hull v. Clarke, 14 Sm. & M. 186; Weir v. Davis, 4 Ala. 442 ; Beasley v. Mitchell, 9 Ala. 780.</p> <p>The statute of limitations does not run. The proposition is, that, if the sale was void, the title remained in Lawson, and the holding was adverse. The true proposition is, that the title remained in the estate. But, taking the proposition as stated, the deduction is wrong, for the title must not only be in some one in esse, but in some one capable of suing. — Murray v. East India Co., 5 Barn. & Adol. 66 ; Angelí on Limitations 65, and cases cited in note 1; 6 Ala. 605 ; 2 Porter (71; 3 Stewart 172; 18 Ala. 828.</p> <p>It is said the record docs not show that Sanderson assented to the widow’s receiving possession, and therefore he was not estopped, but could have sued; that the statute of limitations began to run, and continued. The bill of exceptions must be construed most strongly against the plaintiff in error. But, without this, it shows that the widow bid off the girl Martha, took her into possession, held her as her own, and had never been required by Sanderson to pay for her, or to give her note ; nor has she ever paid for her. It must be supposed that the question of Sanderson’s having parted with the possession was conceded, or that the question was properly referred to the jury, and not excepted to. Again; the facts set forth in the bill justified the court in even assuming the fact, and all the charges asked show that this fact was not disputed.</p> <p>Again; the transaction between Sanderson and the widow was a fraud on the estate, and the statute could not run. — Powell v. Wragg & Stewart, 13 Ala. 161; Beach v. Catlin, 4 Day’s R. 284. The crying off the property gave no title ; an act of sale, begun by it, failed, and the transaction became a private sale; this was an act conceded to be inhibited by the statute, which estopped the administrator from suing, and thereby prevented the statute from running.</p> <p>As to the slave Isaac, the possession was not adverse. — Angelí on Limitations 402 § 5, 329 § -27, 327 § § 8, 9; Ward v. Ruder, 2 Har. &McH. 145; Strong v. Strong, 6 Ala. 347. Nor was that of Lay, on marriage, as has been before shown.— The evidence shows that Isaac was never held adversely by Lay or wife, and the charges asked concede it. By the terms of the contract, it could not become adverse until the children were grown, and the proof shows that Sanderson was then dead, and there was no representative until shortly before suit.— Clark v. Etardiman, 2 Leigh 347 ; Boatwright v. Meiggs, 4 Munf. 145. By the contract, the bailment terminated when the children were raised, and hire should have been recovered for Isaac from that time ; the charge that plaintiff could only recover his hire from suit brought, was error against us.</p> <p>It is insisted that a demand of Isaac should have been made before suit brought. But the bailment had ended; the party should not have pleaded, and put plaintiff on proof of title, but should have disclaimed title, and offered to surrender the slave. This has been decided several times, even in trover ; in detinue, no demand is ordinarily necessary.</p> <p>It is also insisted that, in detinue, damages for the detention of the property are only recoverable from demand or suit brought; but this action is nothing but debt in the detinet, and the recovery of ddmages is for the unlawful detention, and must be damages for the time it was unlawful. — Glasscock v. Hayes, 4 Dana 58; Miles v. Allen, 6 Ircd. 88. The authorities which hold general language seemingly adverse to this, use it in reference to particular facts, making it true in the cáse in hand, but having nothing to do with the general doctrine.</p> <p>The foregoing propositions show that the demurrer'was properly sustained to defendant’s rejoinder. That the'5 demurrer was properly sustained to the third plea, see Bellj v. Pharr, 7 Ala. 813; Bettis v. Taylor, 8 Porter 564; White v. Ross, 5 S. & P. 123. The plea was not puis darrein continuance. Even could the plea have been allowed in any aspect, it could only be to prevent a recovery of the clave, and to confine the recovery to her value; and this is all the judgment is entered for, though the authorities would have justified the usual entry for her.— In no aspect, therefore, was defendant injured by rejecting this plea.</p> <p>The defendant below pleaded the statute of limitations specially, to which were good replications j no good rejoinder was put in. The plea, then, railed on an issue of law. Having been beard on an issue ao to the statute of limitations, he was concluded as to it, and should not have been allowed again to raise it in the case, especially as the plea was replied to and avoided with facts to which he could not respond.</p> <p>The replications having embraced the question of valid sale, &e., to which a responso with facts was unsuccessfully attempted, defendant below should not have been again heard on the question of the validity of that sale. To allow it would be, to permit the party to speculate with a doable chance on the same matter.</p> <p>Detinue is an action as contradi^ and a eosnt in debt may be added. In debt ago hot a personal respensentative, you declare only in the itdicisiyet the statute of limitations must be specially pleaded. This was cace doubted, but is now settled.— 1 Chitty’s Pleadings Á8I, note I. And there is no action so; contractu in which the ¡Astute of limitations can be given in evidence under the general issue. .</p> <p>The charge ashed in rofsronee to the hire of Isaac is double : first, that no hire could be recovered; secondly, at least only from suit. It wao uekon as an entire propositions »fld the court was not hound to soparais A, but might refuse it altogether.— Besides, the court had Aiuaoy laid down the law on the question too favorably for defendant.</p>

<p>Error to the Circuit Court of Talladega.</p> <p>Tried before the Hon. Robert Dougherty.</p> <p>Ejectment by Samuel P. Hudson, the defendant in error, against Thomas Crutchfield, for certain lots situated in the town of Jacksonville in Benton County. The venue was changed, at the instance of the defendant, to Talladega.</p> <p>The tenant in possession, upon whom the.notice was served, was one John Ramey. Crutchfield appeared, and asked to be made a party as-Ramey’s landlord, and the tenant’s name was dropped in the future progress of the suit. Crutchfield died before the trial, and the suit'was revived against bis heirs at law and administrator, the latter objecting to the revival of the suit against him.</p> <p>On the trial, the plaintiff adduced evidence showing that the locus in quo was sold by the sheriff of Bouton County, under an execution issued on a judgment of the Circuit Court of Benton, rendered on the 25th of October, 1839, for $2500, besides costs, in favor of Choice, Harbin & Co. against Aaron Haynes; that ho became the purchaser at this sale, and received the sheriff’s deed, which he produced ; and that defendant, by his tenant, was in possession of the lots. This sale took place in ’46.</p> <p>The defendants then proved that said Haynes, on the 15th of October, 1839, executed a deed of trust, conveying the locus in quo, with other real and personal property, to one M. M. Houston, as trastee, to secure the payment of certain debts due to Thomas Crutchfield and other creditors ; that said Hudson was one of the creditors secured in the deed, his debt being a store account; that said deed was properly recorded, and that a sale was made by the trustee, pursuant to its provisions, of the land in controversy, at which sale Crutchfield became the purchaser, and received the trustee’s deed ; which was produced, dated February 1, 1841; and that Hudson received his pro rata share of the proceeds of this sale.</p> <p>The plaintiff then proved that the note on which Choice, Harbin & Co. recovered judgment against Haynes, was made in August, 1837, and that the suit on it was commenced in February, 1889 ; that a pluries ji. fa. issued on this judgment in 1847, and was levied by the sheriff of Benton County on several articles of personal property embraced in said deed of trust from Haynes to Houston ; that Crutchfield, the defendant in this suit, interposed a claim to the property under the statute; that a trial was had of this claim suit, between Choice, Harbin & Co. and Crutchfield, and that the property was found subject to plaintiffs’ execution, and judgment was thereupon rendered condemning the property, and awarding costs against the claimant ; that upon this trial, the plaintiffs in execution adduced evidence to show that said doed of trust was fraudulent and void, as having been made with intent to hinder, delay and defraud creditors, that the question of fraud vel non was distinctly made and submitted to the jury on that trial, and that the jury found the property subject to the plaintiffs’ execution on the ground that said deed of trust was fraudulent and void, as having been made to hinder and delay the grantor’s creditors ; that the sale of said personal property was made at the same time the land in this suit was sold, viz., February 1,1841; and that Hudson, the plaintiff in this suit, was not a witness on that trial.</p> <p>The defendants objected to this proof relative to the claim suit, as being irrelevant; but the court admitted it, and defendants excepted.</p> <p>Upon this evidence, the court charged the jury, that, if they believed the evidence, the verdict and judgment rendered in the claim suit between Choice, Harbin & Co. and Crutchfield, was conclusive evidence, in favor of Hudson, of the invalidity of the deed of trust from Haynes to Houston, as against the heirs and representatives of Thomos Crutchfield in this action ; to which, defendants excepted.</p> <p>The several rulings of the court excepted to as aforesaid, and the charge given, are assigned for error.</p> <p>1. The judgment in the suit between Choice, Harbin & Co. and Crutchfield was not evidence, for any purpose, in this suit, because the record of that judgment would not conclude Hudson, if offered in evidence against him. In such cases, there must be mutuality. It is a question of estoppel merely; and Hudson, not being concluded by that record, could not set it up as evidence in his favor. The record does not show that Hudson had any other connection with the case, than that he purchased under the Choice, Harbin & Co. judgment, under which they condemned the personal property. — Stephen’s Nisi Prius 1663 ; McLelland v. Ridgeway, 12 Ala. 482.</p> <p>2. Suppose Hudson had been offered as a witness for Choice, Harbin & Co., on the trial of the right of property. Would he have been incompetent, because he held the title to property which he had previously purchased under the same execution 1 If so, any other creditor of Haynes would have been incompetent, for he would have had an equal interest in setting aside the deed for fraud.</p> <p>3. If the judgment of Choice, Harbin & Co. is conclusive in favor of Hudson, on the ground of privity, it must be conclusive for all purposes, and would exclude all denial of his title by Crutchfield. If the judgment is not conclusive of every question in the case, it can only be pleaded as an estoppel in the nature of an estoppel in pais, and is a part of the evidence to support the plea, thus destroying its own conclusive character.</p> <p>4. There is no privity between Choice, Harbin & Co. and Hudson. It is not privity of estate, for the estate is different, and purchased at a different time and under different process, but upon the same judgment. If Choice, Harbin & Co. had failed in their suit, for any cause, would Hudson have been estopped 1 — Allen’s Heirs v. Hall’s Heirs, 1 Marsh. Ky. R. 525. Hudson had his title before the trial of the case between Choice, Harbin & Go. and Crutchfield.</p> <p>5. Hudson was one of the creditors provided for in the deed, which he now insists was fraudulent, and accepted his pro rata share of tho proceeds of the very sale at which Crutchfield bought the lots now sued for. If he had knowledge of the fraud in the deed, and acted upon it, and was a party to the fraud, even by an act of ratification, ho would be estopped from setting up his title against Crutchfield, who was the purchaser at the sale.</p> <p>6rTt was fraud in the deed, which was insisted on in this case as an estoppel, for the verdict in the claim suit was based solely upon that idea; fraud in the purchase made by Crutchfield was not pretended. Crutchfield and Hudson were both parties to the deed, and both accepted its provisions. If it was fraudulent, so as to bo set aside by the judgment of a court, both Hudson and Crutchfield must have participated in the fraud; and Hudson, having acquiesced in Crutchfield’s purchase, and having taken his portion of the proceeds of the sale, would be himself estopped from setting up the fraud in the deed. This evidence was before the jury, without exception, in the court below, and the charge efiectually excluded it from their consideration. The charge is, that, if the jury believe the evidence, the verdict and judgment in the claim suit was conclusive evidence of the validity of the deed, in favor of Hudson in this action, as against the heirs and representatives of Crutchfield.</p> <p>7. The personal representatives of Crutchfield could not be joined with his heirs at law, as defendants in this action. The test is, whether the judgment against them would have been de bonis propriis, aui intest atis. If they had been sued jointly in the first instance, it would have been a misjoinder, and the case is not altered by tbe revival of the suit against them. The administrators of Crutchfield are not shown to have had possession of the land when the suit was revived. Ramey was tenant in possession when the suit was brought, and Crutchfield was admitted to defend as his landlord; and if Crutchfield thus undertook to pay the damages, in the place of his tenant, the administrators would not be bound by the undertaking in this form of action. — Seo T Ala. 459;</p> <p>1. In this suit, Hudson, as a purchaser of the land at sheriff’s sale, must be regarded in two distinct points of view, and as clothed with two distinct classes of rights and immunities; I. As a purchaser from the time he became such, and entitled to all the rights and immunities pertaining to him as such purchaser. II. As standing in the situation of Choice, Harbin & Co., the judgment creditors, and entitled to all the rights and immunities to which they would be entitled, if they had been the purchasers of the land, instead of Hudson, and the plaintiffs in this action of ejectment, instead of Hudson. — A vent v. Read, 2 Stewart’s Rep. 488 ; Daniel v. Sorrells, 9 Ala. Rep. 436.</p> <p>2. Hudson must be regarded as a privy of Choice, Harbin & Co,, so far as beneficial to him ; and the heirs and representatives of Thomas Crutchfield, deceased, who was the defendant in this action, are clearly concluded by any thing which would have concluded him, if he had not died during the pendency of this suit. In other words, it is the right of Hudson to demand of every court to give him, in this suit, the benefit of every matter which could have been given to Choice, Harbin & Co., if they, instead of Hudson, had been the purchasers of the land under their judgment, and thereupon had brought this action against Crutchfield. — Wood v. Jackson, 8 Wend Rep. 36. ‘</p> <p>3. The verdict and judgment rendered on the trial of the right of property against said Crutchfield, claimant, having turned upon the ground that the jury believed the deed of trust fraudulent, which in that case was relied on by said Crutchfield, the claimant, and which in that case was assailed for fraud by said Choice, Harbin & Co., the plaintiffs in execution, must in this suit he regarded as conclusive evidence of the invalidity of said deed of trust. — Gardner v. Buckbee, 3 Cowen’s Rep. 120 ; Strutt v, Bovington, 5 Esp. Rep. 58 ; Burt v. Sternberg, 4 ib. 559 ; Adams v. Barnes, IT Mass. Rep. 365 ; Rakes v. Pope, T Ala. Rep. 161; McCrary v. Remson, 19 Ala. Rep. 431; Saint v. Ledyard, 14 Ala. Rep. 244; Betts v. Starr, 5 Conn. Rep. 550; Landreth v. Landreth, 12 Ala. Rep. 640; Davis v. Davis, 10 Ala. Rep. 299; 3 Phillips on Ev. 827, 828, 960, 961.</p> <p>4. On the death of said Crutchfield, the defendant, it was proper to revive the action against his heirs and representatives, especially under our statutes, which authorize the representatives to rent out the lands of the intestate, and by necessary implication confer upon him the right to the possession, in order that he may rent it and deliver possession to the person renting it. The administrator is the proper party to* pay the damages. — Abercrombie et al. v. Jordan, 15 Ala. Rep. 580 ; Rowland v. Ladiga, 21 Ala. Rep. 9.</p> <p>5. But, even if there was error or irregularity in this, or in entering the final judgment, this is no ground for reversal in this court: — The administrator alone objected to the revival— he did not pretend that he did not have possession of the property in controversy, either by him or his tenant. And after he excepted, he, as well as the heirs at law, “ proceeded to a trial of the cause, and to make up the issue to try the titles to the lots of land and premises described in the declaration.” The administrator and heirs having thus made up the issue, and having had a fair trial by jury, how can either of them be heard to complain of injury 7 What more were they or any of them entitled to 7 If there was error, it was in allowing them and each of them rather more than, perhaps, they were entitled to. By the course they took, they waived their right to object here; and even if they can object here, it is mere error without injury. In ejectment, there is no special pleading. The issue is as to the titles; and there would seem to be no sort of objection to allowing administrator and heirs to defend in such case.— Jackson v. Wood, 8 Wend. R» 9.</p> <p>6. But, as all the parties are before the court, and as the title and damages have been settled by a verdict, rendered on an issue made up by all the parties, and tried by a jury selected by all the parties, it is clear this court will not reverse upon the objection of the administrator or heirs that no judgment should have been rendered against the administrator. If there is any irregularity in this, the Supreme Court will amend the judgment, at the cost of the plaintiffs in error. — Loomis v. Allen, 7 Ala. Rep. 706.</p> <p>7. Ejectment, in this State, performs the double office of ejectment and the action of trespass for mesne profits. — 1 Chitty’s PI. 193, 194. And if the administrator could, in the action of trespass for mesne profits, be made liable for the damages, how is he injured by having that liability enforced in the present suit 1 He is actually benefited, because he is here relieved from the costs, the heirs being liable for the costs. He is complaining here of a benefit. — Alford v. Samuel, 8 Ala. Rep. 95; 1 Chitty’s PI. 193.</p> <p>8. The fact that Hudson was a beneficiary in the deed of trust, and received a pro rata share under it, cannot affect the result of this case: I. Because Choice, Harbin & Co. would not have been affected by that fact, if they had been the purchasers under their judgment, instead of Hudson, and therefore Hudson cannot be affected by it. II. That fact, at most, would only amount to an estoppel in pais, and such estoppel cannot be made available in an action of ejectment, in a court of law.— McPherson v. Walters, 1G Ala. R. 714. III. No question as to that fact, or its effect, is presented by the record, or subject to revision in this court. The charge of the court does not raise the question, nor does the objection to the evidence in a mass raise it.</p> <p>9. When a deed of trust embraces real and personal property, if it is void as to the personal property, for the fraud of the grantor and grantee, it is void as to the realty also, especially in a court of law. — Hunter & Thomas v. Tatum, 14 Ala. Rep. 557.</p>

<p>Appeal from the Chancery Court of Mobile.</p> <p>Heard before the Hon. J. W. Lesesne.</p> <p>The bill was filed by William L. McDow, the appellee, to enjoin a certain action at law instituted against him by the appellant, William Byrne, as administrator of Josiah Thomas, deceased. The casojnade by the hill is this:</p> <p>One Jacob Alford, as principal, and one Achilles Edwards, surety, made their joint note to one Josiah Thomas, for the sum of $2875, payable on the 1st day of January, A. D. 1886.— The said makers of the note were then residents of Greene County, and the said Thomas a resident of the State of Virginia. The said Thomas brought suit on the note on the 12th of July, 1838, in tho United States Court for the Southern District of Alabama-, against the said Alford and the said Edwards, but the process was served only on the said Edwards j the suit was discontinued as against Alford, and thenceforward prosecuted against the said Edwards alone.</p> <p>Whilst the suit was pending against the said Edwards, and before judgment was rendered, he departed this life, leaving a will, and naming therein one Tasker his executor. Tasker proved the will, and entered upon the administration, but acted as such but for a short time, and the complainant was appointed administrator with the will annexed, and was regularly made a party to the above mentioned suit pending in the United States Court as aforesaid. At the December term of said court, 1846, a verdict and judgment were rendered in said cause in favor of the plaintiff, for the sum of $4,945. On this judgment execution issued against the complainant, as administrator de bonis non as aforesaid, and was returned no property found. Edwards died in Greene County, where he had resided, about the first of January, 1839, and the complainant was appointed administrator de bonis non on the 18th November, 1839, (the said Tasker having in the mean time also died prior to that date.)</p> <p>The bill states that the estate of Edwards was insolvent; that complainant so reported it to the County Court of Greene, and that court, out of which the complainant’s letters of administration had issued, so declared it on the 29th of June, 1840. This decree of insolvency was made before the complainant was made a party to the action at law above mentioned ; and the complainant pleaded this in bar of the recovery sought to be had against him in the said suit; but the plea was demurred to, the demurrer sustained, and judgment rendered against the complainant.</p> <p>The bill further shows that one William Byrne, administrator of the said Thomas, who has also departed this life, has commenced, and is now prosecuting, in the Circuit Court of Mobile County, an action of debt against the complainant, founded on said judgment in the Circuit Court of the United States and the return of the execution issued on said judgment as aforesaid, and is seeking to make the complainant individually responsible for said debt, as for a devastavit of the assets of said estate.</p> <p>The bill prays that this suit be perpetually enjoined, and that the creditor be compelled to come in with the other creditors in the Probate Court of Greene County, and be limited to his pro rata share of the assets of said estate on a fair and just division of the same amongst the said creditors.</p> <p>On the filing of this bill an injunction was granted, restraining the further prosecution of the action at law, and Byrne, the administrator of Thomas and plaintiff in the action at law, so enjoined, files his answer.</p> <p>The answer admits all the allegations of the bill relative to the judgment obtained in the Circuit Court of the United States, and admits that the complainant, amongst other pleas, pleaded the insolvency of the estate of Edwards, and offered to support it by the decree of the County Court of Greene; that said plea was demurred to, and the demurrer sustained.</p> <p>The answer denies that the estate is in fact insolvent, but alleges the contrary to be the fact ; that after the sale of the lands belonging to the estate, there was a fund created which, with the personal assets of said estate, was more than sufficient to pay all of the debts ; that the proceeds arising from the sales of land alone were upwards of $9000, whilst tho claims presented for payment, exclusive of the debt of the respondent, were only $8,879 16.</p> <p>The answer also admits the institution of the suit in the Circuit Court of Mobile County against the complainant, with a view to make him liable individually for his debt, as for a devastavit of said estate; further admits that the note which was the original cause of action, was given by the said Alford and said Edwards to said Thomas on account of a debt of the said Alford, but alleges that, at the time the said note was executed, the said Edwards took from said Alford indemnity, on which the said complainant had realized a part at least, if not the whole, of his debt, and had thereby become a trustee for the respondent for the payment of the money ; and therefore the debt of the respondent could, in no manner whatever, be affected by the fact that tho estate of the said Edwards was insolvent.</p> <p>The answer further alleges that tho complainant has interposed every obstacle in Isis power to the collection of this debt, has made no showing as to what assots ho actually has in hand, and offered to pay nothing ; aid therefore, in consequence of such conduct, he is not entitled to any equitable relief in this court; that he conceals tho actual state of tho affairs of the estate, and has the funds belonging to the creditors in liis hands, and there retains thorn with the design of defrauding- the creditors and particularly this respondent; that complainant has made no showing of the fund in his hands as collateral security for this debt, but conceals the same; and charges that complainant has misapplied the fund, or retained it in his hands, refusing to appropriate it to the payment of the debt which it was provided to pay, and shielding himself all tho while by a plea of insolvency, which is not true in fact, but is predicated upon a declaration of insolvency made upon a showing of the personal assets alone, without taking into account the real estate of the decedent, and which, when taken in, renders the estate entirely solvent.</p> <p>Tho complainant offers the depositions of divers persons, who prove the insolvency and worthless character of many of the persons named in the inventory of notes and accounts due to the estate.</p> <p>There is offered also a transcript of the record and proceedings from the Orphans’ Court of Greene County, and by that transcript the following facts appear:</p> <p>By the first inventory rendered by the complainant there appears in his hands, in the shape of notes and accounts, the sum of $9925 87. Many of these claims, however, arc marked doubtful. It also appears that there was in his hands personal property, other than notes and accounts, which was appraised at and which sold for the sum of $2,921 75.</p> <p>Tho debts of the estate at the same time are shown to be $13,707 46, in which is included tho debt'of the defendant.— The estate is declared insolvent by tho court, and an order made to sell tho real estate of tho decedent for the purpose of paying debts. The commissioners appointed to sell make return of their proceedings, by which it appears that they sold real estate enough to amount to the sum of $9,334 45. The record also shows that on a certain judgment in favor of the estate and against Abraham Alford, for the sum of $4,455 29, an execution was levied upon some fifteen negroes, which were claimed by one Peppin ; but what was the result of the claim suit, does not appear. On the same judgment, on another execution, there seem to have been sold lands of the defendant Alford, as follows : one tract for the sum of $552; another tract for $15 63; another tract for $82 ; one other tract for ,$400 ; amounting in all to the sum ef $1049 63, leaving still some lands unsold for want of bidders. These were subsequently sold for $19 70; and afterwards another slave was levied upon as the property of Alford, and claimed by one Coleman, and bond given to try the right; but it nowhere appears in this record, what the result of this claim was.</p> <p>On the final hearing, the Chancellor rendered a decree perpetually enjoining the defendant from the further prosecution of his action at law against the complainant, leaving him at liberty, however, to take his place among the other creditors of Edwards in the Orphans’ Court of Greene County; and this decree is here assigned for error.</p> <p>1. It cannot be denied that the legislature of Alabama had full power to prescribe the manner in -which the estates of decedents in Alabama shall be disposed of, and, in case of insolvency, that the creditors shall share in it equally and ratably. This was done by our acts of the legislature on that subject. It is certain that it never was designed to give a foreign creditor an advantage over a resident creditor — to prefer foreigners to our own citizens. There must be some remedy to prevent such gross injustice as that would be. Nor was it ever designed to let a foreign creditor compel an administrator to pay, out of his own pocket, a claim against an insolvent estate. If this bill cannot bo maintained, one of those monstrous consequences would result. If litigation wrore carried on only in the State courts, no such consequence could ensue; for, to any suit in such courts, the administrator could plead the insolvency of the estate, and thus, by the statute, each creditor would be compelled to submit his claim, along with the others, to the Orphans’ Court, where all would share equally.</p> <p>2. But a difficulty arises from a conflict of jurisdiction, where a foreign creditor sues, as in this case, in the United States courts. Tho constitution of the United States secures to a citizen of another State the privilege of suing a citizen of this State in the Federal courts, and he has a constitutional right to have his case tried there. But a plea of insolvency, according to our statute as it then stood, ousted the court in which it was filed of jurisdiction of the ease, and transferred it to the Orphan’s Court, a State tribunal. Hence the Supreme Court of the United States decided, (and no doubt properly,) in the case of Suydam et al. v. Broadnax, 14 Peters 67, that such a plea was not good in the United States court. The consequence was, that, notwithstanding the State laws, the foreign creditor would get a judgment in that court for the whole amount of his claim, which might sweep the whole estate, and leave the home creditors nothing. This injustice obviously could not be tolerated,— There must certainly be some mode of preventing it. Accordingly, if the creditor proceeded on his judgment in the United States court to collect the whole in that court, or to make the administrator personally liable, that court would stop him by injunction from collecting more than his ratable share ; and this was expressly decided in Williams v. Benedict, 8 Howard’s R. 107.</p> <p>3- If the administrator of Thomas had sued on his judgment in the United States court, we could have stopped him in that court by injunction. But having gotten his judgment in that court, and execution thereon de bonis tesiatoris, and a return of nulla bona, he sued McDow on his judgment, as for a devastavit, in the Circuit Court of Mobile County. This court has decided that such a judgment and return was conclusive .evidence of a devastavit, as against McDow, (Garrow v. Emanuel, 3 Stewart 285 ; Thompson v, Searcy, 6 Porter 393 ;)' and subjected him to a judgment de bonis propriis for the whole amount. The monstrous fraud and injustice of this is obvious ; and there was no remedy at law. It was clearly a case for the interposition of equity. — Williams v. Benedict, 8 How. R. 107. And the decree of the Chancellor was perfectly correct: it does not deprive the creditor of any right. He had no right to anything but a pro rata share of Edwards’ estate, and that right the decree gives him liberty to assert in the proper forum.</p> <p>4. The record does not show that the sale of lands made the estate solvent; directly the contrary is shown: it was and is insolvent.</p>

<p>Error to the Circuit Court of Russell.</p> <p>Tried before the Hon. Jno. Gill Shorter.</p> <p>Ejectment by Jesse Wilkinson, as administrator of Daniel MeDougald, deceased, against N. W. Long, the plaintiff in error, to recover an undivided moiety in section eight, township fifteen, range twenty seven, situated in the County of Russell. There was a verdict, and judgment thereon rendered, for the plaintiff below.</p> <p>It appears from the bill of exceptions, that the said half-section of land was reserved to a Creek Indian, under the treaty of March 24, 1832; that the said resorvee duly sold and convoyed the samo to Fannin & Howell, on December 31, 1834 ; and that John D. Howell, in the name of Fannin & Howell, executed to MeDougald the following instrument:</p> <p>££ For value received, I, John D. Howell, of Muscogee, and State of Georgia, do hereby assign, transfer and set over unto Daniel MeDougald, of said county and State, all my right, title, claim and demand to a tract of land purchased by Fannin & Howell, designated as the north half of section number eight, in township number fifteen, of range number twenty seven, situate in the district of lands subject to sale at Montgomery, and request that a patent may be issued to said MeDougald, his heirs or assigns. Witness my hand and seal, this first day of Feb’y, A. D. 1840.”</p> <p>(Signed) Fannin & Howell,</p> <p>by John D. Howell, [L. S.j</p> <p>It was also shown that said MeDougald had departed this life, and that his estate had been duly declared insolvent before the commencement of this suit. This was the plaintiff’s title.</p> <p>The defendants claimed under a tax collector’s sale, and deed made in pursuance thereof. It appears that the land was advertised to he sold on Tuesday after the first Monday in August, 1849, but on that day the sale was publicly postponed until the first Monday in September; the advertisements in the newspaper and at the court-house door, were changed accordingly, and the land -was then sold, on said first Monday in September,</p> <p>Lease, entry, ouster and possession having been admitted, the plaintiff asked the court to charge the jury, that, if they believed all the evidence, they must find for the plaintiff; which charge the court refused to give, and charged the jury, that, if they believed all the evidence, they must find an undivided half of said land for the plaintiff; to which charge the defendants excepted. The defendants then asked the court to charge the jury, that, if they believed all the evidence, they must find for the defendants; which charge the court refused to give, and the defendants excepted.</p> <p>The charge given, and the refusal to charge as asked, are now assigned for error.</p> <p>The first question presented is, whether the administrator of an insolvent estate can recover in ejectment, on the evidence disclosed by the record. The act of 1843 (Clay’s Digest 192 § 2,) does not change the previous law ; and it is certain that, before its passage, the administrator had no right to bring an action of this kind : it could only be brought by the heirs at law, upon whom the legal title is cast by operation of law, on the death of their ancestor. — 7 Ala. R. 459. The ninth section of the act shows what rights vest in the administrator. The first section of the act of 1839 empowers him to rent the lands; and the act of 1820 authorizes him to apply for leave to sell real estate. — Clay’s Digest 196, 199. The rule laid down in this court seems to be, that both the administrator and the heirs are necessary parties. — Jordan v. Abercrombie, 15 Ala. 580 ; Swan v. Driver, at this term,'opinion by Gibbons, J.</p> <p>The statute of 1843 does not give the administrator the right, even though the estate be insolvent, to sue in his own name for the recovery of the land. This suit, therefore, cannot be sustained by him.</p> <p>The approved deed to Fannin & Howell, and the transfer by Howell of his interest in the land to McDougald, aro not sufficient evidence of title to sustain this action. The words of the transfer do not purport to convey a title, for it requests the Government of the United States to issue a patent to McDougald ; and where it is evident that the vendor did not intend to convey title, it has been held that the instrument amounted only to a bond for titles, though it contained the words “ grant, bargain and sell.” — Chapman v. Glassell, 13 Ala. R. 50.— What more is this instrument than that 1</p> <p>The postponement of the sale by the tax collector, as shown by the record, does not vitiate his deed, nor render it void. The owner of the land ought not to be permitted to recover it, without paying the purchaser his money and interest. These sales for the purpose of raising revenue ought not to be set aside, unless wholly void.</p> <p>1. Administrator may sue in ejectment, when the decedent might have done so. — Masterton v. Girard, 10 Ala. 60.</p> <p>2. Approved contract conveys title, as against any one not claiming through the Indian. — Jones v. Inge et al., 5 Por. 331; Treaty found in 6 Porter 414.</p> <p>3. As to the sale by the tax collector, mode of advertising, deed, &c. sec the tax laws of 1848 and 1849.</p> <p>4. Tax laws construed strictly. — Scales v. Alvis, 12 Ala. 619 ; Lyon et at. v. Hunt et aL, 11 Ala. 310; Pope v. Headen, 5 Ala. 434.</p> <p>5. Plaintiff may recover a moiety. — Sawyer v. Fitts, 4 S. & P. 366; 2 Porter 9.</p>

Tried before the Hon. John A. Cuthbert. Assumpsit by Milner, Tinsley & Co. against the appellant on a valued or closed policy of insurance on seventy-eight boxes of manufactured tobacco, shipped from… Held: without the aid of any custom, that losses are to be settled as the court below directed in this case. — 4 Howard’s Miss. R. 63.

Tried before the Hon. Robert Dou&herty. This was a motion made by Hargrove in tho court below, to enter of record his discharge from a judgment rendered against him at the Spring term, 1839, in favor of the plaintiffs in error, and also from tho affirmance of the same judgment in the Supreme Court against himself and tho said Elliott, who was his surety on the writ of error bond.

Tried before the Hon. Thomas A. Walker. Detinue by Reuben Mitchell, the plaintiff in error, as administrator of Philip Gates, deceased, against Valentine Gates, the defendant in error, for certain slaves.

Appear from tho Court of Probate of Dallar.. The appellee, Joint B. 3oner, applied to the Court of Probate of Dallad for lottery of adminmiration with tho will annexed on the estate of John Walker, deceased, which were granted to him. Ho then propounded for probate, as tho last will and testament of said decedent, the following instrument, as set out in the record : Postscript: Interline before assigning, May 18, A. D. 1847.

Tried before the Hon. John A. Cuthbert. This was an action of assumpsit by Murphy against Hoyt, Ford & Robinson, to recover upon an account for goods sold, moneys advanced, &c. The defendants below admitted the account sued on, but pleaded, by way of set-off, that the plaintiff was indebted to them in a larger amount, which they offered to have extinguished to the extent of the plaintiff’s demand.

David Barnett died in the year 1828, and his will was admitted to probate at the September term, 1828, of the Orphans’ Court of Dallas County, by which he appointed William Barnett and James Olds his executors, to whom letters testamentary were granted at the same term.

<p>Error to the Circuit Court of Mobile,</p> <p>Tried before the Hon. Lyman Gibbons.</p> <p>This action was brought by"Reuben Thom, the'defendant in error, against the owners of the steamboat Lowndes, who are the plaintiffs in error, to recover damages for the loss of a stage, occasioned by a collision between the steamboat and the ferry flat on board of which the stage was.</p> <p>On the trial, a witness for the plaintiff stated, that he had known the ferryman of the flat for fifteen years, and that he believed him to be an export and careful ferryman. The defendants objected to this evidence, on the ground that it was matter of opinion only, andj because it was irrelevant; but the court overruled both of the objections, and defendants excepted.</p> <p>The same witness also testified, that, after the collision, the Steamboat stopped her engine, and when about fifty yards from the fiat she was called on, by those on board of the flat, to come to their assistance; that upon this call being made, some one on board of the steamboat was heard to say, in a loud and commanding tone, “ Go ahead, and let her sink; it’s nothing but a damned flat-boat, any how” ; and that the steamboat then went on, without rendering any assistance to the flat. The words above stated, as being heard used by some one on the boat, were objected to by defendants; but their objection was overruled, and they excepted.</p> <p>The same witness, after stating the circumstances under which the collision took place, also stated, that ho thought, if the steamboat had returned to the flat when the call for assistance was made, the stage might have been saved. This evidence also was objected to by the defendants; their objection was overruled, and they excepted.</p> <p>The plaintiff also introduced a witness, who stated, on his voir dire, that he was in the employment of the plaintiff, at the time and place of the collision, as the driver of the stage, and as such had the control and management of it; that the plaintiff was not present at the collision ; that, before putting the stage on the flat, he asked the ferryman, who was a negro, whether it would not be better to wait until the steamboat, which was then heard approaching from below, had passed ; to which the ferryman replied, that the boat had rung her bell to stop at the lower landing, and that they 'would have time to get across before she came up; that thereupon the stage was put on the flat by witness, and the ferryman started at once across the river. The defendants then objected to the competency of this witness, on the ground of interest; but their objection was overruled, and they excepted.</p> <p>These several rulings of the court upon the evidence are here assigned for error.</p> <p>1. The opinion of witnesses ought not to have been given to the jury as evidence. — 4 Ala. 46 ; 10 ib. 461.</p> <p>2. The witnesses were permitted to state to the jury, that, after the collision had taken place, some one on board of the boat was heard to say, “ Go ahead, and let her sink ; it’s nothing but a damned old flat-boat, any how.” There was not a particle of evidence going to show that this expression was used by any one in authority on board of the boat; there is much more probability that it was used by a negro, or an intoxicated passenger.</p> <p>3. The witness Sanders was clearly incompetent, on the ground of interest. — 1 Green. Ev. § § 394, 396, 564 ; 1 McL. R. 540, note.</p> <p>1. The general rule, that a witness must testify to facts, and not merely to his belief or opinion, is not disputed. But to this rule there are many necessary and well established exceptions ; and it is often difficult to say what is fact, and what is opinion or belief. Thus, testimony as to handwriting, as to personal identity, as to the value of property, and various other matters, must, from the nature of the case, be matter of opinion to a greater or less extent; so, too, all testimony as to character, or skilfulness, must, from the nature of the case, be more or less matter of opinion. In all such crises, such evidence is admissible. — 1 Green. Ev. § § 488, 490; 1 Phil. Ev. 227 ; 2 Stark. Ev. 368. In this case, the character of the ferrynian for carefulness, experience and skill, was obviously material; and the witnesses who had known and observed his acts as ferryman for years, were competent to prove it. That was their evidence, and nothing more. The court should not (especially as the depositions were taken on notice, and not objected to,) seize on the expression “ I believe,” to prevent the true import and effect of the evidence. — See, especially the case of The Commonwealth v. Thompson, 3 Dana 301, where, in a question of solvency, the expression “ I considered him good,” was held unobjectionable; see also Gentry v. McMinnis, 3 Dana 383; McKee v. Nelson, 4 Cowen 355; 16 Ala. 778.</p> <p>2. The witnesses hero state the facts and reasons of their opinion or belief; and in cases where the main fact to be proved, is a deduction from other facts observed, this seems allowable.— See cases before cited.</p> <p>3. For the same reasons, the statement of the witness, that the steamer could have saved the flat from sinking after the collision, was properly admitted. It was not mere opinion; he was an eye witness of the occurrence, and details the facts.</p> <p>4. The witness Sanders was clearly competent. He was but the agent of Thom; and the general rule is, that an agent is competent to testify for his principal. There is no showing of any liability on his part, or negligence. The verdict and judgment in this case could bo no evidence for or against him.</p>

The bill in this case was filed in the Chancery Court of Madison ; but the Hon. David G. Ligón, who was then the Chancellor of the Northern Division, having been of counsel, it was transferred to Jefferson & Walker, and was heard before the Hon. W. W. Mason. It is brought to this court by writ of error.

Tried before the Hon. Andrew B. Moore. Detinue by the appellant, Matthew D. Thomason, against Aaron Odum, for a certain negro woman, named Watsey, and her three children.

Ehror to the Court of Probate of Wilcox County. George W. Williamson and Martha J., his wife, filed their petition in the Probate Court of Wilcox, setting forth that one Jonathan Mason, late of said county, died intestate on the ' 15th of August, 1849 ; that said Martha is his only heir at law; that Lucy H. Mason, the widow of said intestate, administered upon his estate in Wilcox County, and took possession of all the property of the estate as such administratrix; that said…

Error, to the Chancery Court of Marengo. Heard-before the Hon. J. W. Lesesne.

Heard before the Hon. James B. Clarke. The bill in this case was filed by the plaintiffs in error, who are the heirs at law and personal representatives of Jesse Beene, deceased, against the heirs at law of Willis Randall.

Error, to the Court of Probate of Benton. Held: neither the appearance nor consent of the parties could give the court jurisdiction.

Heard before the Hon. Jambs B. Clark. This bill was filed by Henry McGown, the plaintiff in error, in behalf of himself and others, against his late co-partner, George Sprague, and… Held: in analogy to our attachment laws, that a complainant, in aid of his bill to enforce the payment of an equitable demand, might have, in a proper case, an attachment to seize and condemn the property of the defendant in the hands of a third person. — T. &. J. Kirkman v. Vanlier, 7 Ala.

Tried before the Hon. Nathan Cook. This was an action on the case by Marks, to recover for a tortious breach of the defendant’s (plaintiff in error) duty aris - ing out of a contract of hire of a slave named King, in these words: a$170.

Heard before the Hon. W. W. Mason. The bill was filed by Francis E. Bailey, the defendant in error, against James M. Pearson, Mary Pearson, Matthew Lyle and Mary D. C. Lyle.

The record shows that Samuel H. Bogle was appointed administrator of the estate of James Bogle in 1826, that as such administrator he procured an order for the sale of the personal property, and bis return of the sales, the inventory and appraisement.

Tried before the Hon. Thomas A. Walker. Detinue by Alfred E. Going, as administrator de bonis non with the will annexed of Thomas Woolfork, deceased, against William Sullivan, for two negro slaves. The pleas were non detinet and the statute of limitations of six years.

Heard before the Hon. J. W. Lesesne. This was a bill filed by Alfred Shepard, the appellee, against Benjamin H.Halstead, his late co-partner, Wilson Ashley, Elijah McCreary, Willis Strickland and William Thomas as administrator of Joseph Thomas, deceased.

<p>1. Assumpsit does not lie on an award when the submission to arbitration is under seal.</p>

Tried before Hon. John Gill Shorter. This was a summary proceeding in the name of the governor for the use of the State, against Joseph B. Powell and Jesse G. Bradley, the appellees, as sureties of… Held: no judgment by motion could be taken against the securities of a sheriff, except upon actual notice to the sheriff. — Orr v. Duval, 1 Ala. 262.

<p>X. When a husband abandons Ms wife without just cause, cn account of a difficulty occurring between them-respecting her property, and soon.aftorwards proposes a reconciliation through the medium of a third person, which the wife refuses, declaring that “ she had made up her mind not to live with him any longer,” her declaration is evidence that she consented to the separation, and she cannot afterwards obtain a divorce on account of the abandonment.</p>

Er'ror, to the Court of Probate of Franklin. The defendants in error, who are the executors of Jeremiah S.\Helmcs, deceased, were cited before the Court of Probate to mako a final settlement of their said testator’s guardianship of James B. Hudson, the plaintiff in error.

Tried before the Hon. Tiiomas A. Walker. Assumpsit by William B. Martin, for the use of John N. Young, against Stephen P. Hollingsworth. The cause of action endorsed on the writ is said to be the following instrument in writing : “Received, Tuskaloosa, Februrary 11, 1836, of H. L. Martin, on account of William B. Martin, one hundred dollars.

The record does not show the name of the presiding judge. This was a special action on the case by the plaintiff in error against James McCann, for debauching and getting with child one Elizabeth Rogers, who was an inmate of the poorhouse of said county during the time said McCann wa's employed as the keeper of it.

Tried before the Hon. Andrew B. Moore. Suit was brought in the court below by tho appellee, for the use of Benjamin J. Hogg, against the appellant, as surety on an administrator’s bond, made by Benj. L. Jordan and Elizabeth Hogg, as administrators of the estate of Benjamin Hogg, deceased. The declaration originally contained three counts, the first on the bond, properly setting it out, averring that the penalty was duo and unpaid, although it had been demanded.

Tried before the Hon. George Goldthwaite. Detinue by the plaintiffs in error against the administrator of Meredith Price, deceased, for certain slaves. Held: in construing this deed, that the fact that the remainder was to the heirs of Polly Wood, who were not the heirs of her husband Drury, withdrew the deed from the operation of the rule in Shelley’s case; and that, therefore, Drury Woods did not talco an absolute estate, but only an estate for his life.

Tried before the Hon. Robert Dougherty. Assumpsit by Elijah Corley, for the use of William Townes, against David Carter, on a note which is copied in the opinion. The plea was the general issue, with leave to give any special matter in evidence.

Heard before tho Hon. W. W. Mason. This bill ivas filed by the plaintiffs in error, Jno. J. Thrasher and Peter Mitchell, against the widow, heirs at iaw and personal representatives of Peyton Pinckard, deceased.

Tried before the Hon. Alex. McKinstry. Assumpsit by James F. Hutchison, against Charles Cullum, the declaration containing all the common counts. Under the quantum meruit count in his declaration, the plaintiff offered evidence to show the amount of work and labor dono and materials furnished by him in erecting a certain building for the defendant.

Tried before the Hon. Lyman Gibbons. The plaintiffs in error, having two judgments iu tho Circuit Court of Washington Comity against Curtis N. Wilcox, Jacob Boyd and George W. Boyd, caused two writs of,/?, fa. to be issued thereon on the 24th day of March, 1849, winch came to the hands of the defendant in error, as sheriff of Choctaw County, on the 80th day of March, 1849. Said executions were returnable on the 2nd Monday in October-, 1849.

Tried before the Hon. John Gill Shorter. Ejectment, the declaration laying separate demises from Matilda Harvey and Robert Carlisle.

<p>1. Under the act of 1818, securing to married women their separate estates, a, feme covert may charge, sell or dispose of her property without the consent or concurrence of her husband.</p>

Error, to the Circuit Court of Benton. Tried before the Hon. Thomas A. Walker. This was an action of assumpsit by the defendants in error, as the personal representatives of one Richard D. Rowland, against the plaintiff in error, to recover a certain sum of money alleged to be due and owing the estate of the said Rowland, by reason of a Breach of warranty on a contract of sale of certain negroes made by the said plaintiff in error, to the said Rowland in his life-time.

<p>Error to the Chancery Court of Chambers.</p> <p>Heard before the Hon. James B. Clark.</p>

<p>Error, to the Circuit Court of Mobile.</p> <p>Tried before the Hon. Lyman Gibbons.</p> <p>This action was commenced by notice of motion for judgment on a certain promissory note made by John A. Cuthbert, and endorsed by the plaintiff in error. The note is payable on the 1st day of July, 1845. The notice of motion for judgment is dated, and executed on defendant, on the 21st June, 1851.</p> <p>On the return day of the notice, the court made an order that all motions in favor of the Bank of Mobile to be made on that day, and on which the notices were made returnable on that day, be continued until the next succeeding Monday of the term. On the Saturday preceding the Monday to which the motions in favor of the Bank had been continued, the court adjourned over until the next succeeding Tuesday, on which day a judgment by default was regularly entered against the defendant. On a subsequent day of the term the record contains the following minute entry: “It is ordered by the court, on motion of the defendant, that the judgment rendered against him at a prior day of this term of the court be set aside, and that the cause be placed on the trial docket, to stand for trial at this term of the court.” At the same term the defendant pleaded non assumpsit and the statute of limitations. The case was continued generally until the Fall term, 1852, when being reached in its order on the docket, the defendant moved to quash the proceedings : 1st. Because the motion for judgment had not been made on the day named in the notice; 2nd. That no action was taken on the notice on the day to which it was first continued ; 3rd. The motion for judgment is now made on a day of which the defendant has not had legal notice. This motion was overruled, arid verdict and judgment for the plaintiff were rendered on the issues made on the pleas. The defendant excepted to the overruling of his motion.</p> <p>On the trial, as appears by the bill of exceptions, the plaintiff exhibited the note mentioned in his notice, and offered a protest of a notary public, in which ho certified, among other things, that he left a notice to the defendant as endorser at his office. He also called the notary, who testified that he had no recollection of the protest or notice, but from his knowledge of his habits of business he was sure that he left the notice, at the office of the defendant, in the afternoon and before night. The plaintiff proved by another witness, that the defendant was a practicing attorney, and did not keep a clerk. This ‘was the whole testimony in relation to notice of protest.</p> <p>The defendant requested the court to charge the jury, that the certificate of notice, in the protest of the notary, was not sufficient to charge the defendant; which charge the court gave, but added, that the jury might connect with it the other evidence on the part of the plaintiff, and that if they believed from the evidence, that the notice was left in such a way that in all probability it reached the defendant, it was sufficient to charge him.</p> <p>The defendant requested the court to charge the jury, that in all the evidence there was not sufficient to charge the defendant ; which charge the court refused to give, but left it to the jury to decide as to the sufficiency of the notice. To which charge and refusals to charge the defendant excepts.</p> <p>The court also charged, that the issue of the notice wras the commencement of the suit; and that, as six years had not elapsed from the accrual of the plaintiff’s cause of action to the time of such issue, the action was not barred by the statute of limitations ; to which th,e defendant also excepted.</p> <p>The refusal to quash the notice, and to dismiss the proceedings, the continuing of the case, and requiring the defendant to plead after the judgment by default was set aside, the refusal of the charges asked, and the charges given, are here assigned for error.</p> <p>When the facts are ascertained, it becomes a question for the court to determine whether the notice is sufficient. The only material evidence in this case is, the recital in the protest “ that notice was left at the office of endorser same day.” The notary remembered nothing about it; and the fact that defendant was a lawyer and kept no clerk, is entirely immaterial. The recital in the protest is not, of itself, sufficient to charge the endorser. — Rives v. Parmley, 18 Ala. 256 ; Coster, Robinson & Co. v. Thomason, 19 Ala. T19.</p> <p>No motion was made on the day indicated in the notice, but there was an order granting leave to the plaintiff to make the motions on a subsequent day which were to have been made on that day, not to continue any motion that had been made. The plaintiff might have done this without such an order, but not without another notice to defendant. The effect of the notice was thus lost. — 8 Porter 125. Again ; all the virtue and validity of tliis notice was lost for another reason : On the day to which the motion was attempted to be continued, there was no court, and no order of any kind taken.</p> <p>The subsequent appearance was not made until after a judgment by default. An appearance to quash or set aside a judgment for irregularity, certainly cannot be a waiver of that very irregularity. The defendant afterwards pleaded, but not until his motion was decided. The objection that the motion was too late, was not raised in the court below.</p> <p>'Fhe charge of the court on the statute of limitations was erroneous. In summary proceedings like this, there is no case pending until the motion is made ; therefore, the making of the motion is tho commencement of the suit, and not the act of issuing notice. — 1 Stewart 470; 8 Porter 125 ; 1 Ala. 543 ; 8 Ala, 844. Six years having elapsed before the motion was made, the statute was a bar.</p> <p>1. If there was any irregularity in submitting the motion, or in the previous orders, defendant has waived it, by procuring the judgment rendered at the first term to be set aside, and having the cause put on the trial docket, and continuing it several times. — Crawford v. Bank of Mobile, 7 Ala. 205 ; Griffin v. State Bank, 6 Ala. 911; Garey v. State Bank, 11 Ala. 771 ; 18 Ala. 787.</p> <p>2. The notice stands in the place of both writ and declaration, and its service is the commencement of the action ; and, therefore, the statute of limitations was no bar to the motion.— Griffin v. State Bank, 6 Ala.. 910 ; Angelí on Limitations 334 ; 4 Cowen 158.</p> <p>3. The question as to the sufficiency of tho notice of protest rests not only on the recital in the protest, but upon the additional proof that defendant kept an office a3 attorney and had no clerk, and that the notice was left at his office before night. This brings the case within the decisions of Rives v. Parmley, 18 Ala. 261, and Coster, Robinson & Co. v. Thomason, 19 Ala. 721.</p>

<p>Error to the City Court of Mobile.</p> <p>Tried before the Hon. Alex. McKinstry.</p> <p>The plaintiffs in error were garnisheed at the suit of Burke & Co. v. Eslava and others, and answered that they had given certain promissory notes to Eslava, which are particularly described in the answers. Ketchum also answered, that he had been notified that the notes which he referred to in his answers had been transferred to Roberts, the defendant in error. The plaintiffs in the judgments upon which the garnishments issued, contested the right of Roberts to the notes as transferree, and thereupon a notice was issued calling upon him to appear and contest with the plaintiffs in such judgment his right to the notes. This notice was executed, and more than five days afterwards, Roberts having failed to appear at the court to which the notice was returnable, such court rendered judgment, that Roberts be barred from setting up any claim to the notes, and against the garnishees for the amount specified in their answers to be condemned in their hands to the satisfaction, pro tanto, of the judgments upon which they were garnisheed.</p> <p>The record further shows, that the day after the service pf the garnishment, the garnishees were sued before a justice of the peace by the defendant in error, upon one of the notes described in their answers as garnishees, and that subsequently, and before the filing of such answers, judgment had been rendered against them on the note by the justice. The defendants in this judgment removed the proceedings into the City Court by certiorari, and there pleaded to the statement filed against them the garnishment, proceedings and judgment thereon, and that they had paid the judgment so rendered against them as garnishees. On the trial the plaintiffs offered in evidence the note sued on, and other testimony tending to show, that the note sued on had been transferred by Eslava to Roberts, before the service of the garnishments, in payment of a bona fide debt, that both of the defendants had been informed of the transfer, and that Smoot knew that Roberts was the owner of the note sued on at the timo he answered. The defendants objected to the whole of this evidence as irrelevant, and the objection was overruled.</p> <p>The plaintiff then proved, that the garnishments were sued out by Smoot, acting as the agent of the judgment creditor; that on the day on which the judgment was rendered condemning the money in the hands of the garnishees, it was paid by them to the clerk of the court, and by him paid back to Smoot as the attorney of the plaintiffs in whose favor it had been condemned. The defendants objected to each portion of this evidence, and the objection was overruled, and judgment rendered in favor of the plaintiffs.</p> <p>The rulings of the court are here assigned for error.</p>

<p>1. In appeal oases from justices of the peace, where judgment is rendered as on issue joined, it is not error to allow the substitution of a lost statement without notice to the defendant.</p> <p>2. In assumpsit to recover for lumber furnished by plaintiffs to defendant, defendant’s agent by whom it was procured is a competent witness ^for plaintiffs ; and evidence that he was indebted to defendant for money advanced on the building contract at the time he procured the lumber is irrelevant.</p> <p>3. The testimony of a witness on a point not in issue ■ caunot be contradicted, nor can he bo questioned about a matter not relevant to the issue in order to lay a ground for impeaching him.</p> <p>4. When a partnership is plaintiff, and the Christian names of the partners are nowhere set out in the summons or declaration, if defendant neither pleads in abatement, nor demurs, but goes to trial on a ploa to the action, he will be held to have waived the defect, and cannot assign it for error.</p>

The defendants in error suggested to the court below that the executors of Britton Mims, deceased, had failed to charge themselves in their inventory with a certain negro, named John, the property of said estate.

<p>Error to the Circuit Court of Monroe.</p> <p>Motion is made to dismiss the cause from the court for want of jurisdiction, the writ of error having issued since the 17th January, 1853, the day on which the new Code went into operation.</p>

<p>1. When the defendant in execution files a bill to redeem, he must allege in his bill that he delivered possession to the purchaser without suit, or that the latter consented to his retention of possession as tenant.</p> <p>2. Relief cannot be granted beyond the allegations of the bill, even when there is ample evidence to justify it.</p>

<p>Appeal from the Court of Probate of Barbour.</p> <p>George W. McGinty and Elizabeth, his wife, were cited before the Court of Probate to make a final settlement of the said Elizabeth’s guardianship of her minor son, Moses Griffith. Their accounts were audited and stated, showing a balance in the hands of the said guardian of $594 50. Legal notice by publication having been given, the court proceeded to render a final decree, which is as follows : “ It is therefore ordered, that the said account of the said guardian as stated be allowed, arid recorded and filed; it is further ordered, that Seth Mabry, the present guardian of the person and property of tbe said Moses Griffith, recover of the said George W. McGinty, guardian in right of 1ns wife Elizabeth, late Elizabeth Griffith, the guardian of Moses Griffith, a minor, the said sum of $594 50, as a balance of tbe assets of the said ward remaining in the hands of said guardian, as also tbe costs in this behalf expended, for which execution may issue.”</p> <p>This decree is now assigned for error.</p>

<p>This case comes back to this court from the Supreme Court of the United States, where the previous judgment of this court, rendered at the January term, 1850, was reversed, and the cause remanded. For the facts of the case, see 17 Ala. 781, and 13 Howard’s U. S. R. 381.</p>

Tried before the Hon. Alex. McKinstry. Assumpsit by Joseph Cassell against Sidney E. Collins, on the following facts, as shown by the bill of exceptions : On the 23rd June, 1851, Cassell was in possession of a small lot and tenement at the corner of St. Anthony and Commerce streets, in the city of Mobile, deriving his possession from one Lowry, who had rented the lot from one Meslier, who claimed to be the owner and proprietor of it; Lowry had rented for one year from the…

<p>Error to the Circuit Court of Russell.</p> <p>Tried before the Hon. Robemf Dougherty.</p> <p>This was an action of trespass, quare clausum, fregit, by Kirkley against Segar. Plea, not guilty, with leave to give special matter in evidence, &c. Verdict and judgment for plaintiff below for fifty dollars.</p> <p>Upon the trial a bill of exceptions was sealed, by which it appears that the plaintiff, in order to entitle himself to vindie.tivo damages, the action being for a continuation of trespasses, was allowed to road, against the defendant’s objection, as evidence to the jury, the record of a former recovery for a similar trespass upon the same land, of thirty-five dollars, had in a suit between the same parties, commenced bofore the present suit, and determined at a previous term of the court.</p> <p>The evidence conduced to show, that tho plaintiff had erected some houses, and had enclosed and was cultivating a portion of the south-west quarter of section twenty, township 17, rango 28, in Russell County, which is the locus in quo ; and that tho defendant, before the commencement of the former suit, had cleared and enclosed some fifteen acres of said land, embracing tho improvements previously made on the land by the plaintiff, a portion of which improvement was made by the defendant’s consent; that upon enclosing these fifteen'aeres in February, 1850, said defendant had removed the plaintiff’s fences, and had thrown down his houses, and had. continued to cultivate the fifteen acres so enclosed from February, 1850, until the trial of this cause.</p> <p>1. The plaintiff offered to prove the value of tho rents of the fifteen acres, which were enclosed and cultivated by tho defendant as above stated. The defendant objected to this proof as irrelevant and illegal; but the court overruled tho objection, and he excepted.</p> <p>2. The defendant then offered to prove tho value of his' improvements made on the land; which proof the court rejected, and he excepted. ‘</p> <p>3. The proof conduced to show, also, that tho defendant claimed under an informal tax sale, and had the deed of the tax collector for the south half of section twenty, township seventeen, range twenty-eight, and that the plaintiff claimed the south-west quarter, on which his improvements were made, and which he had in possession until it ivas'cncloaed by tho defend-, ant, which was done before the commencement of the former suit. The plaintiff had never retaken tho possession, hut the defendant had retained it, and cultivated the land from a period anterior to the commencement of the former action.</p> <p>Thereupon, the defendant asked the court to charge the jury, that, although they might believe from too evidence that, before said former suit was brought, the plaintiff had actual possession of a part of said close, and that the defendant had committed a trespass upon and entered into such part before said former suit was commenced, yet, if they also believed that such trespass was proved on the trial of the former suit, anti a recovery was had therefor in said former suit, and that the plaintiff had never since such trespass and entry by 'defendant had possession of said part of said close, and has ever since continued to hold and cultivate the same, then the plaintiff could not recover for his thus continuing in possession. This charge the court refused to give, and defendant excepted.</p> <p>4. The defendant asked the further charge, that the plaintiff must show, under the general issue, in order to recover, that he had the rightful possession, as against the defendant, of the premises, at the time the injury was alleged to have been committed by the defendant with force. This charge was also refused, and the defendant excepted.</p> <p>These rulings of the court are assigned for error.</p> <p>cited 1 Chitty’s Pleading 175, 177,178, 179 ; 7 Term R. 481 ; Smith v. Wilson, 1 Dev. & Bat. 40 ; Bennett v. Holmes, ib. 486;</p>

The record does not show the name of the presiding judge. On the 12th day of March, 1851, Broxson sued out a capias in assumpsit against Yonge, returnable to the Circuit Court of Coffee County, which was executed on the 18th clay of the same month, and returned into the office of the clerk of said court.

Heard before the I-Ion. J. W. Lesesne. The defendants in error were the complainants below, and the bill was filed by them as the heirs of Kitty J. Hollingsworth, who was a daughter of Winbeck Boney, against the plaintiffs in error, who are the other heirs of said Winbeck. The charges arc, in substance, that the defendants, Wm. G. and R. 0. Boney, after the death of the said Winbeck, their father, the said Wm.

Heard before the Hon. J. W. Lesesne. This bill was Jnlod by David H. Kenyon, as executor of Solomon Pool, deceased, against the appellees, who are alleged to be the brothers and sisters of William T. Relfe, deceased, and as such his heirs .at law. ..It alleges that said Pool became surety of said William T. Relfe on a guardian’s bond; that said Relfe afterwards made default as guardian, and a judgment was recovered on^said bond; against the obligors for the sum of $327 68 ;…

Error, to the Circuit Court of Macon. Tried before the Hon. Robert Dougherty, Detinue by the plaintiff in error, as administrator of… Held: that it is an inseparable incident to the creation of a separate estate in the wife, that the husband has no control or dominion over the property, and that his interest must be excluded by direct words, or a manifest intent; and in many of the cases it is said, that, notwithstanding the conveyance be made to trustees for the use of…

<p>1. When suit is brought on a note in the name of the payee for the use of another person, if the defendant does not by plea deny its execution, the note itself imports a consideration, and this presumption is not repelled by showing that tho payee “ never was the owner of tho note, and never put it in circulation or authorized it to be done.”</p>

<p>1. Proceedings for tlie recovery of finos or penalties for the violation of city ordinances, are quasi criminal in their character, and should be conducted according to the rules applicable to indictments for misdemeanors.</p> <p>2. When defendant is charged with the violation of a city ordinance forbidding theitrading with slaves without tlie permission of the owner or employer, and the statement does not aver the name of the slave or of his owner or employer, it is fatally defective on demurrer.</p> <p>3. When the evidence before the jury, in a quasi criminal proceeding for the violation of a city ordinance., is entirely circumstantial, the court may refuse to charge upon a portion of the testimony, and should refer the whole of it to the jury.</p>

<p>Error to the Circuit Court of Mobile.</p> <p>Tried before the Hon. Lyman Gibbons.</p> <p>The plaintiff in error sued out an attachment against John McGinnis, and summoned John C. Morton as garnishee, Morton answered, denying any indebtedness to the defendant in attachment, and stating that he had executed three promissory notes to the wife of the defendant, which had been transferred to O’Grady, the defendant in error. O’Grady was thereupon summoned as transferree, and an issue was made up between him and the plaintiff in attachment to try the right of said notes.</p> <p>On the trial it was proved, that the notes in question were given by the garnishee for the fixtures, counters, pans, &c., of a bakery belonging to a bake shop, which had been occupied as such by the defendant in attachment, who had removed to California some four months before the notes were given; that the property for which the notes were given was in the bake shop when occupied by such defendant in attachment, and that at the time the purchase was made, and for a long time thereafter, the wife carried on the same business at that place, dealt and traded on her own account, and in her own name; that the notes in question were payable to her, and endorsed by her to the defendant in error before the summons of garnishment was served, in payment of a debt which she had contracted with him while trading on her own account, for supplies necessary to carry on the business ; that the defendant in attachment had never returned from California, and there was no evidence offered to show that he had, during his absence, assisted his wife in any way.</p> <p>The court charged the jury, that, although a promise to the wife during coverture was in law a promise to the husband, yet this rule was subject to modifications; that in case of abandonment by the husband, when the wife is acting as feme sole, she may take a note payable to herself, and endorse it in her own name and pass a title, where there was no proof that the husband dissented from it; so, where the husband and wife were living separately, and she was trading and doing business in her own name, with the effects of the husband, or her own effects, her contracts would be valid and binding if the husband assented, and his assent would be presumed, unless he expressed his dissent ; that as to the effects of the husband, the law in such a case would make the wife his agent, and she would be presumed to act within the scope of her powers until he dissented; that if the jury believed the defendant in attachment had abandoned his wife without any intention of returning, or, if he went to California without such abandonment, or with the intention of returning to her, or sending for her, and that she carried on business in her own name uniformly, and that she so dealt with the garnishee when she took the notes from him — when she endorsed them to the defendant in error, and when she contracted the debt to pay which the notes were éndorsed to him, and if such debt was a bona fide debt, and the transaction was without fraud, then the title to O’Grady was good, and would override the title of the plaintiff in attachment, as it was prior in point of time.</p> <p>The charges thus given were excepted to, and are here assigned for error.</p> <p>The notes, being made payable to a married woman, became instantly the property of her husband, and her en lorsement would transfer no property in them. — Barlow v. Bishop, 1 East 432; Savage v. King, 17 Maine 301; Commonwealth, v. Manley, 12 Pick. 176; Miller v. Delamater, 12 Wend. 435 ; Story on Promissory Notes, 129 § 12-i; Vaneev. Wells & Co., 6 Ala. 737.</p> <p>More especially did the property in the notes vest in the husband, since the consideration for them was the property of the husband. — Commonwealth v. Manley, 12 Pick. 176; Keith v. Woombell. 8 Pick. 211.</p> <p>This case is very different from that of Roland v. Logan, 18 Ala. 807. In that case the wife had been abandoned by her husband and b ft to her own shifts. She had removed with her children from Georgia to Alabama, where she had conducted business on her own account for three years prior to the endorsement of the note in question, and near ten years before the institution of the suit. Her husband had never come to Alabama, and had asserted no claim to her earnings. In the case at bar, the record furnishes no indication, of an abandonment by the husband of his wife. In Roland’s case, who wife contracted in reference to means and property acquired by her own industry. In this case, the wife contracted in reference to the property of her husband.</p> <p>The decision in Roland’s case turns upon the presumption of the husband’s assent to tho wife’s transaction, and that presumption is founded upon the fact of abandonment. So, the reason of that caso can apply with no force to this.</p> <p>If tho circumstances in this case would have warranted the inference of the husband’s assent to tho wife’s transaction, that inference should have been left for tho jury, a.nd not have been drawn by the court. — Roland v. Logan, 18 Ala. 307 ; Barlow v. Bishop, 1 East 432-</p> <p>Tho court below charged tho jury that tho wife’s agency under the circumstances would be presumed, and that her acts as such would be valid, unless the husband dissented. The rule is, that the wife, whether the husband is abroad or at home, is not presumed to be his agent generally, or to he entrusted with any other authority as to his affairs, than that which it is usual and customary to confer upon the wife.'-Benjamin v. Benjamin, 15 Conn. 347.</p> <p>The instructions of tho court below to the jury were argumentative, indirect and uncertain, and were of a character to mislead the jury. —Cothran v. Moore, Í Ala. 423 ; Kenan v. Holloway, ] 6 ib. 53.</p> <p>The charge given to the jury last set forth in the bill of exceptions, assumes facts which it is the province of the jury to ascertain, and virtually directs a verdict for tho claimant upon the facts so assumed. — 9 Ala. 937 ; 14 ib. 460; 16 ib. 398.</p> <p>1. The charges of the court below, as to the validity of the assignment of the notes, correctly state the la?;, and are in conformity with the decisions of this court in tho caso of Roland v. Logan, 18 Ala. 307, and authorities there cited. The ancient rule imposing disabilities on femes covert, has boon greatly relaxed, and many exceptions to tho rulo have been allowed.— The caso at bar is within tho exceptions.</p> <p>2. Where a husband leaves his wife in tho possession of property, she is, during his absence, necessarily his agent, and the husband is bound by her acts. — 10 'Wend. 79 ; 16 Verm. 653; 1 Peters 108. A husband may abjure the realm, so as to confer on his wife the character of a feme sole, and whether he left his wife with the intention of not returning is a question for the jury. — 9 Ala. 857 ; 8 ib. 557 ; 4 McCord 148. A wife may sell, and convey personal property as the agent of the husband; and whether she was so authorized is for the jury to decide from the facts and circumstances. — 3 Strobh. 315; 8 Black. 240.— Any evidence tending to' prove such agency is admissible, — 11 Verm. 628. The authority of the husband will be presumed.— 4 Dev. & Batt. 180 ; 12 Wend. 433 ; 18 Ala. 307.</p> <p>The cases cited by plaintiff in error will be found, upon examination, not to affect the one at bar. That of Barlow v. Bishop, 1 East 432, cannot be considered as authority, inasmuch as the English courts have since decided differently.— 7 Bing. 565 ; 1 Campbell 485. In the case in 12 Pick. 178, there was no express assent of the husband, nor was there evidence from which such assent could be implied. No analogy exista between the case at bar and that of Savage v. King, 17 Me, 801. There was nothing in the circumstances of that case to take it out of the operation of the general rule, that a note made payable to the wife is a note to the husband and becomes, eo instanti, his property. There is as little analogy in the case of Benjamin v. Benjamin, 15 Conn. 347. There there was direct proof not only that the husband left home for a merely temporary purpose, but that he made ample provisions for the support of iris family, and that she was not only not his general agent, but that she was not in any manner to act for him. There was no room for presumption of agency. It is not denied in that caso, that the “wife may act as agent of her husband,” or that her agency may be presumed; see page 857. In the case of Rotch v. Miles, 2 Conn. 638, which in some respects is similar to the case at bar, the court held, that if a man leave his wife, without making provision for her support, and did not return, and she continued in the business in which she was left, the husband will be liable for her contracts, and the law will presume his assent to her acts. See opinion of Chief Justice Swift.— This case was cited and approved in Benjamin v. Benjamin, 15 Conn. 347. The case from 7 Wend. 68, was essentially different from the one at bar, and the subsequent case of Miller v. Delamater, 12 Wend. 433, is an authority in favor of the defendant in error. In that case' the Supremo Court of New York review the case of Barlow v. Bishop, 1 East, and dissent ' to tha judgment there given. The case cited from 3 Humph. 80, is merely an affirmance of the general rule, and has no correspondence to the case at bar.</p> <p>The charge of the court below to the jury, “that if they believed the facts deposed to by the witnesses, and that there was no fraud in the transaction between O’Grady and Mrs. McGinnis, the claimant, O’Grady, was entitled to a verdict,” was not erroneous. The testimony was clear and without conflict, and it was only necessary to draw a legal conclusion from it; thus bringing it within tho ruling of tho court in Abney, adm’r, v. Pickett, 21 Ala. 739, and Hopkins v. Scott, 20 ib. 179-</p>

<p>Error to the Circuit Court of Choctaw.</p> <p>Tried before the Hon. Lyman Gibbons.</p> <p>Debt on an administrator’s bond, in the name of Preston G. Nasli, Judge of the County Court of Sumpter, for the use of Thomas C. Grimm, against James M. Reid, the plaintiff in error; the suit having been discontinued as to the other obligors in the bond, upon whom process was not served. The declaration sets out the bond, and alleges a special breach of the condition, to-wit: the recovery of a judgment against the administrator to be levied de bonis intestatis, the issue of an execution and its return u no property found,” and assets in the administrator’s hands more than sufficient to satisfy it, which he wasted ,and converted to his own use. The defendant demurred to the declaration, but his demurrer was overruled. The pleas are stated at length in the opinion.</p> <p>1. The declaration is defective, and the demurrer thereto should have been sustained. It is not averred in the declaration that the judgment recovered against James H. Owen, as the administrator of John M. Owen, deceased, was upon any act or indebtedness of the said John M. Owen in his life-time, which constituted a proper charge against his estate, or upon any debt or act which was or could have been a proper charge against the said James H. Owen, as administrator of said estate. As against the administrator, the rendition and non-payment of a judgment, of the form of that stated in the declaration, would be prima facie evidence of a devastavit; but, as against the sureties of the administrator, it is not even prima /acie evidence, they not being parties to the suit. To fix the liability of the sureties of an administrator, an actual devastavit must be shown ; and, of course, it must be averred. — See Williams v. Hinkle et aL, !f> Ala. 718, and authorities there cited. In the case at bar, the surety, and not the administrator, demurred to the declaration.</p> <p>2. The demurrer to the pleas of defendant below', should have been overruled. The record shows that the demurrer was to all the pleas jointly, and not to each plea separately ; therefore, if any one of the pleas bo good, this court must reverse. — Spann v. Boyd, 2 Stew. 480 ; Kent v. Long, 8 Ala. 45. Some of the pleas may be bad, but it is insisted that some of them are good ; and being “ in short by consent,” form was dispensed with.</p> <p>To sustain the third and fourth pleas, see Williams v. Hinkle, 3 5 Ala, 713, and authorities there cited.</p> <p>Upon the fifth and sixth .pleas, see Powe & Smith v. Stcrrett, judge, &C-, 16 Ala. 83U.</p> <p>Besides, under our statute, “ no security for an executor or administrator shall be chargeable beyond the assets of the testator or intestate, on account of any omission or mistake in pleading of the executor or administrator.” — Clay’s Dig. 228 § 34. If then, the administrator in the case at bar omitted to plead, when he was sued on the claim or demand upon which judgment was rendered, the matters set forth in pleas numbered five and six, it is clearly competent for his sureties to do it when they are sued, otherwise the statute above cited would be a nullity.</p> <p>The seventh, which is a plea of plene administravit, is clearly good ; under our statute above cited, the surety should be allowed to interpose this plea. — Williams v. Hinkle, supra.</p> <p>3. But it may be contended that the pleas are defective, or are not to be treated as pleas, because they are not signed by counsel. That this is not a defect available on demurrer, see DeForest, Morris & Wilkins v. Elkins, 2 Ala. 50. The filing of a plea is an admission that a declaration was filed. — (Arthur & Oorprow v. Broadnax, 3 Ala. 557.) So is the filing of a demurrer an admission that a plea was filed; and the defendant in error having demurred to these pleas, as pleas, is now estopped from asserting that they are not pleas. The statement of the clerk in the record that the pleas wore not signed, is no part of the record, and cannot be looked to for any purpose.</p> <p>The declaration is good. — Thompson, judge, v. Searcy et al., 6 Port. 393 ; Burke v. Adkins, 2 Port. 236.</p> <p>Nil debet to an action on a bond, is a bad plea. The second plea is performance generally, and this is bad to an action on a bond, when breaches are assigned. These are elementary principles.</p> <p>The third and fourth pleas seek to litigate the question of indebtedness of the estate, notwithstanding a judgment and return of no property against the adm’r. That this cannot be done, see Deaneíai. v. Portis, 11 Ala. 104. This case holds (p. 107) that “ the judgment rendered in the primary cause cannot be opened by the pleadings and evidence.” The conclusion results too from the fact that the administrator is the sole representative of the estate. When no fraud in submitting to the judgment is set up, to allow the securities to contest the judgment, to which they arc privy, would be to make them in fact quasi personal representatives of decedent. If fraud were set up, it could not be done by plea at law, but must be by bill in chancery. It docs not follow that the judgment was submitted to by fraud because of the facts contained in the fifth plea; and it must be taken most strongly against the pleader. In rules against the sheriff for not making money, it nas been often held that the securities need not be parties to the rule, and yet as a consequence of the verdict, a judgment goes against the sureties. — Gary v. Frost & Dickerson, 5 Ala. R. 638.</p> <p>It is erroneously supposed that the statute of 1826, and the case of Williams v. Hinkle, 15 Ala. 713, allows these pleas.— Dean et al. v. Portis, supra, p. 107. The mispleading or failure to plead by the executor cannot, by statute of 1826, injure the securities. The effect o" this statute is, to put the plaintiff in a suit on the bond, to prove an actual devastavit. If none such has occurred, it is difficult to see how admitting the conclusiveness of the judgment against the administrator can injure them, as it is no evidence of assets against them. If a devastavit has occurred, of course there is no injury. Williams v. Hinkle decides that the judgment does not fix a devastavit as against the securities, but it is very far from holding that it does not fix the indebtedness of the estate, and gives no countenance to such a position.</p> <p>The fifth plea simply meaus this : admitting that eighteen months had expired before judgment against the administrator, admitting that the debts were all known before such judgment, the estate was not reported or declared insolvent, yet, since the rendition of the judgment, (and since the bringing of this suit,) the estate has been declared insolvent. Such is the meaning of the plea — the legal intendments being incorporated, and it receives no aid from the exception to the general rule very properly created by Powe & Smith v. Sterrctt, 16 Ala. 339, nor from the statute of 1326 ; for the plea being true does not establish that there was mispleading or failure to plead, unless it can be said that not pleading that which does not exist is a mispleading or failure to plead.</p> <p>It is difficult to see how the seventh plea can, in point of lawr, be true. Under our statute, there can be no other than an equitable (equal) distribution of assets. How then can a plea of plena administravit bo good under our law, without setting out that in whole or part the plaintiff was paid ? In no other way than by medical bills and funeral expenses having consumed the assets, and if so, this i- on exception to tho rule of payment of creditors and should have been pie?(led. But the plea is open to another and more fatal objection ; it amounts to this : the security pleads in bar of tho action, (and of course of costs accrued,) that the administrator has fully administered, not that ho had before suit brought. It should have added that he (the administrator) hath not, nor on tho day of commencement of the suit of the plaintiff, or at any other time since, had any goods and chattels, &c.~ 8 Ohitty’n Ph 944, arid notes.</p> <p>There are, in fact, no pleao in tho record. Tho paper inserted as pleas has neither the endorsement of tho clerk nor the signature of counsel, and it would he dangerous to treat every pretended paper found by the clerk among tho 'files as part of the record. The judgment only shows there were picas and a demurrer to them which was sustained, but non constat that these are tho pleas. — Murrah v. Bv. Bank Decatur, 20 Ala. 892 ; Bv. Bank Decatur v. Moreh-y, 19 Ala. 222. It has also been held by this court (I think in 21 Ala.) that a bill of exceptions not signed by the judge cannot be looked into; and it has also been held, that it musí even appear that it was done in term time; and if not, hovr can pleao not signed or endorsed be looked to 1 It cannot bo said that this objection should have been taken before joining in error. The error assigned is, sustaining the demurrer to tho pleas. The judgment shows there were pleas, and to them a demurrer was sustained; and this is so far record, and tho plaintiff" in error can assign tho action of the court as error. Whether a particular paper incorporated into the record constituted such pleas is not involved in the assignment of tho, errors, and is a very different question.</p>

<p>1. When two conflicting opinions are delivered in the same case at different times, and it is brought up a third time on error or appeal, neither one of the previous decisions is conclusive, but the case must be considered as if presented for the first time.</p> <p>2. When a judgment is froely and voluntarily confessed, with full knowledge on the part of defendant of all tho facts connected with it, and without any fraud or collusion on íhs part of plaintiff, tho defendant is estopped from setting yiy any dofanco to the debt which existed anterior to such confession, and a court of equity cannot afford relief against it except upon some equity subsequently arisinjj.</p>

<p>Appeal from the City Court of Mobile.</p> <p>Tried before the Hon. Alex. McKinstry.</p>

<p>Appeal from the Chancery Court at Montgomery.</p> <p>Heard before the Hon. James B. Clark.</p> <p>The appellant, as administrator of Thornton Taliaferro, deceased, exhibits his bill, in which he sets forth and charges, that on the 1st day of March, 1841, one Bushrod W. Bell drew his bill of exchange for the sum of $8754 80, addressed to one B. J. Guise; that said bill was endorsed by James C. Boyd and his intestate, and was bought by the Branch Bank at Montgomery ; that the parties to said bill were liable according to the order in which their names appear upon it, that is, Boyd as first, and his intestate as second endorser; that after said bill was negotiated to and became the property of said Bank, Thornton Taliaferro died insolvent, and the complainant became his administrator; that pending such administration the Bank filed the bill of exchange as a claim against the estate of said Thornton Taliaferro, and judgment was rendered by the Orphans’ Court in its favor, for $1446 42, the pro rata share of this demand in the assets of the estate of said Thornton Taliaferro, deceased.</p> <p>The bill then charges, that, since this judgment was obtained, the complainant has been informed and believes, that, at the time of such judgment, the Bank had no claim or demand against the estate of his intestate, and that before that time Boyd, the first endorser on the bill before mentioned, had paid the amount in full to the Bank; that “this was not known to orator until long after the rendition of said judgment in said Orphans’ Court as aforesaid.”</p> <p>It is further alleged, that if the debt was not so paid, that some secret arrangement, founded on sufficient and valuable consideration, had been made between Boyd and the Bank, by which the latter agreed with the former to extend the time of payment, without the knowledge or consent of the complainant or his intestate, and that complainant had no knowledge of this arrangement, “until long after the rendition of said judgment in the Orphans’ Court, and for this reason said defence was not made in said Orphans’ Court before judgment.”</p> <p>It is further charged, that, notwithstanding these things, the Bank has had execution issued, which is now in the hands of the sheriff, and is thus attempting to enforce the collection of its judgment. The bill prays an injunction and general relief.</p> <p>Boyd and the Bank answer, and also demur to the bill for want of equity.</p> <p>The Chancellor sustained the demurrer, and dismissed the bill; from which decree the complainant appealed to this court, and here assigns it for error.</p> <p>cited Dunham v. Carter & Carroll, 2 Stewart 496; Boyd v. Woodfin, 3 Stewart 360; Corner v. Corner, 3 Ala. 524; Gray v. Dennis, 3 ib. 716; 9 Porter 631; 13 Ala. 471.</p> <p>There is no equity in the bill:</p> <p>1. The charge, as to the payment of the debt by Boyd, puts in issue the fact of the complainant’s information merely, and not the fact of the payment. — Story’s Eq. PI. § 242 to § 256 ; Reed v. Walker, 18 Ala. 332; Spence v. Duren, 3 ib. 253.</p> <p>2. The bill does not show such an excuse for failing to make the defence at law, as will justify the interposition of a court of equity. — 5 Port. 547; 2 Ala. 20 ; 9 ib. 120 ; 17 ib. 672 ; 17 *6.719; 19 *5. 686.</p> <p>3. There is no allegation that the debt has been paid by Boyd since the rendition of the judgment; but if there was, it would not benefit the complainant, for in that case, he has a complete remedy at law. — 19 Ala. 686, supra.</p>

<p>Error to the Circuit Court of Macon.</p> <p>Tried before the Hon. John G. Shorter.</p> <p>Roney brought his action of assumpsit against Jordan, and declared on an agreement in writing made by the defendant on the 8th day of May, 1851. The declaration, after setting out the date of the agreement, proceeds thus : “And thereby, then and there, promised, in consideration that said plaintiff would take a certain negro boy of the said defendant, who had a sore leg, and effect a cure of the said leg, to pay to the said plaintiff, six months after or from the time said cure was effected, or from the date that the said negro was returned by the plaintiff and pronounced well, the sum of $100; and then and there delivered,” &c.</p> <p>On the trial the plaintiff introduced an agreement as follows : “ Memorandum of an agreement entered into this day, between Benjamin Roney of the first part, and Samuel'Jordan of the second part, witnesseth, that the said Roney agrees to take a certain negro hoy of the said Jordan, named Alfred, who has a sore leg, and effect a cure of the same free of any charge for hoard, in consideration of which the said Jordan agrees to pay said Roney the sum of one hundred dollars, payable six months from the time the cure of said negro is effected, or from the date that he is returned by said Roney and pronounced well; the intention and understanding of the parties being, that a sound and perfect cure is to be effected, for which the said Jordan is willing to pay the above sum, otherwise he is not to pay anything. May 8th, 1851.</p> <p>(Signed) Benjamin Roney.</p> <p>Samuel Jordan.”</p> <p>This was objected to, on the ground that the agreement offered varied from that described in the declaration ; which objection was overruled, and the agreement allowed to go the jury. The plaintiff then proved that the boy ivas returned by him to the defendant on the 1st of September, 1851, and offered evidence tending to show that said negro was cured when so returned; but upon this point the evidence was conflicting.</p> <p>The plaintiff then offered to prove, that when he returned the negro, he (the plaintiff) pronounced him well; which evidence was objected to, and the objection overruled.</p> <p>The defendant then offered evidence tending to show, that from the appearance and condition of the negro’s leg in July, 1852, he was not cured at the time he was returned.</p> <p>Upon this evidence the court charged, that by the terms of the contract the plaintiff stipulated to receive defendant’s negro free of charge for hoard, and to effect a perfect cure of the sore upon his leg; and that the defendant stipulated for six months time after his return by the plaintiff to ascertain the fact, and that at the expiration of six months ho would pay the plaintiff one hundred 'dollars if the negro was cured at the time of his return ; that the jury must ascertain when the negro was returned to the defendant by plaintiff and pronounced well, and whether at that time a perfect cure had been effected ; and if they found such to be the fact, it devolved upon the defendant to show, by evidence within the six months after the return of the negro, that the sore was not cured ; and if he had failed to do so, they must find for tbo plaintiff; and that the jury could not look to any evidence of unsoundness after the six months, and must disregard any evidence of unsoundness in July, 1852, if the six months had previously expired. The defendant excepted to the rulings of the court upon the evidence and also to the charge, and the same are hero assigned for error.</p>

Heard before the Hon. James B. Clark. The plaintiffs in error, William T. Minter and Matthew Gayle, filed their hill 'against the Branch Bank at Mobile, setting forth that the defendants had recovered a judgment against them, as the sureties of one Pritchard, on a note for $500, in 1842, in the Circuit Court of Mobile ; that shortly after the rendition of the judgment, an execution was issued on it, which was placed in the hands of the sheriff of Dallas; but no money was…

<p>1. The Orphans’ Court having granted an order of sale of “all the perishable property” belonging to an estate, the administrator proceeded under it to sell all the persona l property, including the negroes, and made due return of the sale to the court, which was received and ordered to be recorded; and the administrator de bonis non afterwards brought detinue for one of the negroes sold : Held, that in the absence of a statutory definition of the term “perishable property,” as applied to the estates of decedents, the order should receive the same interpretation given to it by the court that made it and the parties acting under it, and that the sale passed the legal title to the slaves.</p>

<p>1. Assumpsit lies in favor of the landlord against a stranger for rents received by the latter from the tenants under an assertion of title in himself.</p> <p>2. If the tenant pays over rents to the mortgagor after the law day of the mortgage, before notice of any claim by the mortgagee, the payment is effectual against the latter ; nor does the mortgage constitute any objection to a recovery by the mortgagor against one who has wrongfully received the rents under an assertion of title, when it is not shown that the mortgagee has asserted any claim to the fund.</p> <p>3. The heir at law may sue for and recover rents accruing after the death of his ancestor, whose Gstate has been declared insolvent, if neither the administrator nor creditors interpose any obstacle.</p>

<p>Error to the City Court of Mobile.</p> <p>Tried before the Hon, Alex. McKinstry.</p> <p>The facts are these: On the 10th September, 1852, Higgins obtained a judgment against Martin, before a justice of the peace, for the sum of $50 and costs. On the 18th of that month Martin took an appeal to the City Court, which commenced its session on the second Monday in October, 1852.— During that term, Higgins appeared by his counsel, and filed a statement in the following words : “ Plaintiff claims $50 for work and materials.” Martin having failed to appear, a judgment by default was rendered against him, and a writ of inquiry was awarded returnable immediately. A jury was empannelled, who assessed the plaintiff’s damages, and the court gave judgment final for the amount of the verdict.</p> <p>On the last day of the term Martin appeared, filed affidavits, and moved for a new trial, which the court refused. To the ruling of the court on this motion Martin excepted, and the court signed and sealed a bill of exceptions, setting forth many facts, which it is unnecessary to note, as they are not looked to in passing on the errors assigned.</p> <p>1. That the justice of the peace did not return the appeal and papers in the case into the City Court until after the commencement of the session at which the judgment was rendered;</p> <p>2. Because no notice of the appeal issued to the appellee un-> til after the court commenced its session;</p> <p>3. Because the statement of the cause of action is insufficient ;</p> <p>4. Because the court overruled the motion for new trial;</p> <p>5. The court erred as set out in the bill of exceptions.</p>

<p>1. A bill for a divorce on the ground, of adultery must allego th® nata® oí tbé person with whom the adultery was committed, or the fact that it is unknown to complainant; but if the defendant answers the bill, without raising any objection on account of the want of such an allegation, he will be held to have waived it.</p> <p>2. A divorce a vinculo matrimonii was granted to the wife, on the ground of abandonment and adultery on the part of her husband, when the evidence showed that she bad separated from him before the consummation of their nuptials, because she bad ju3t reasons to apprehend that be bad another'wife then living ; that he consented to the separation at the time, and promised to produce sufficient evidence toremove hep suspicions ; that lie entirely failed to produce such evidence, and showed no exertions to obtain it; and that he led a vagabond, roaming life, and committed adultery with different women, with one of whom he lived four months.</p>

Tried before the Hon. Robert Dougherty. Assumpsit by the appellees, James Childers, David W. Childers and Paschal W. Childers, against Felix M. Tankersley. The action was brought to recover plaintiffs’ portion of the proceeds of certain bales of cotton, which the defendant, who was a constable, had seized and sold under an execution against David Childers : i;ho declaration contained the common counts. 1.

<p>Error to the Chancery Court of Lawrence.</p> <p>Heard before the Hon. D. G. Ligón.</p> <p>The bill in this case was filed by Sarah Reese, by her next friend John M. Eldridgc, against, her husband, John C, Reese, who istho plaintiff in error, fov a divorce a vinculo ra-ttrimonii, on account of cruel and inhuman treatment on his part.</p> <p>The bill alleges that in January, 1831, she intermarried with the defendant, when he had a small amount of property, and she had considerably more than he had, which she brought to him. The bill then details a long series of indignities, cruelties and oppressions, continuing for a long series of years, until at last it became intolerable, and she was forced to abandon him. The bill alleges this continuous ill-treatment up to the time of her abandonment, but it also specifies certain times when Ms conduct to her had been more outrageous than at other times, and amongst others, one time is specified about two years before she abandoned him.</p> <p>The bill prays that the marriage be dissolved a vinculo, and that a reasonable allowance be made to her out of the property as alimony for her support and maintenance.</p> <p>The defendant answers the bill, denying all cruel treatment, and casting the whole blame of their unpleasant and disagreeable life upon the complainant, and by his answer presents himself before tbe court as blameless, whilst the complainant is anything but an innocent or an injured person.</p> <p>The hill is demurred to, because there are no specific acts of cruelty alleged after a certain date specified in said bill, about two years before she abandoned him, and when his conduct was alleged to have been more than ordinarily brutal and cruel. The answer also states, by way of plea, that the complainant did not reside in the county of Lawrence, where the bill was filed, but in the county of Madison.</p> <p>The answer further alleges, by way of plea to-.all that part of the bill charging cruel treatment before the 15th of September, 1846, that- on that day all prior offences were condoned, and consequently cannot be alleged against the defendant.</p> <p>Much proof was taken in the cause, too much to be repeated in this statement. The allegations of th.e bill are all substantially established by the clearest and most undoubted testimony.</p> <p>The decree of the Chancellor was as follows:</p> <p>“ This cause is submitted on bill, answer, plea, demurrer and proof, for final decree. The bill is filed for divorce and alimony. The divorce is claimed on the allegation of cruel, inhuman and barbarous treatment on the part of the husband. The causes of demurrer are: first, that Mrs. Reese, the complainant, was at the time of filing the bill a resident of a different chancery district from the one in which the bill was exhibited. The statute which allows complainants in cases of divorce to file their bill in the courts of the district in which they reside, is remedial in its character, and cumulative of former remedies. It cannot be so construed as to take from complainants any pre-existing right. Jurisdiction in chancery, as well as at law, before the passage of that act, was fixed and regulated by the residence of the defendant, when he was a citizen of this State. This bill distinctly charges that the defendant resides in Lawrence County, in which it is filed. The demurrer, therefore, so far as it depends upon this cause, is overruled.</p> <p>“ The other ground of demurrer, which, with the one already disposed of, forms the principal matter of both demurrer and pleas, is, that the bill charges no specific acts of inhumanity, cruelty and barbarity after the 15th day of September, 1846, but that the charges are vague and general. On examining the bill, I find that the charges of cruel, inhuman and barbarous treatment are made to extend in general terms to the day of the final separation, and a few out of many instances are specifically charged, some without date, and one with the very day on which it occurred. I do not think it necessary to allege every act of cruelty complained of with circumstantial particularity ; one or two specifications will be sufficient, and proof may make out others under the general charge. In a lapse of eighteen years of matrimonial strife, such as is shown to have existed between these parties, it would require a voluminous bill indeed to charge every act of violence and abuse. The demurrer is, therefore, overruled.</p> <p>“ The pleas, except so far as relates to the question of con-donation, are not sustained, and are disposed of in the examination of the demurrer.</p> <p>“As to the question of what will amount to condonation of the wrongs and injuries sustained by the wife, when it has to be inferred from the acts of the wife, it would be exceedingly difficult to lay down any fixed general rule, which should govern in all cases. The wife who is timid and fearful, shrinks with horror and dismay from the odium which attaches to a separation from her husband, and becomes the patient martyr of his tyranny and brutality, rather than seek peace in separation, unless a time should arrive in the history of her sufferings, when, justified by the opinion of the world, and sustained by the counsel of friends, she might seek freedom in abandoning him. Such patient endurance would not amount to condonation.</p> <p>“ The wife of a dissipated and drunken husband, who has become the mother of his children, and the subject of his cruelty and inhumanity, will patiently bear her wrongs, under the hope, sometimes well founded but often delusive, of being able to reform him. Her forbearance in this respect, influenced as it is by the most praiseworthy of all motives, should not be construed into condonation of the brutal wrongs inflicted upon her, if, when she despairs, she seeks freedom in flight from the homo of her misery and the scene of her humiliation and suffering.</p> <p>“In this latter category I am constrained by the proof to arrange the present case, and consequently cannot regard the fact that complainant remained with the defendant for two years after the violence done her on the 15th September, 1846, as such evidence of condonation as will preclude her from now complaining of that wrong, and seeking such relief as the law will warrant for its infliction.</p> <p>a Under this view of the case, my conclusion is, that the complainant is entitled to the relief she seeks. She is entitled to alimony, and it must be sent to the master, to ascertain what property should be allotted to her. In doing this, he will allot to her one half the slaves in value, leaving the balance of the estate, both real and personal, to the defendant, for himself and son.”</p> <p>The decree was then entered, dissolving the bonds of matrimony between the parties, so far as the complainant was concerned, and the balance of the decree left to abide the master’s report.</p> <p>The errors here assigned ape, that the court erred in its final decree.</p> <p>contended that the proof established a case of mutual misconduct, such as should estop either party from seeking relief; that the decree for alimony, giving the wife one half of the husband’s estate, was wrong and not sustained by law, as the parties had one child; one-third would have been ample for her, under the circumstances. He cited Lovitt v. Lovitt, 11 Ala. 763 ; Quarles v. Quarles, 19 ib. 365 ; Clay’s Digest 170 § 8.</p> <p>1. That the statute allowing a bill for divorce to be filed in the county of the complainant’s residence, was remedial in its character, and cumulative of former remedies; the complainant, therefore, might elect to exhibit her bill in the county of her own residence or in that of the defendant. — Butler v. Butler, 11 Ala. 6(38; Eldridge v. Turner, ib. 1049.</p> <p>2. That it was not necessary to allege specifically every act of cruelty complained of; that one is sufficient, and other acts properly come out in evidence. — Holden v. Holden, 1 Hag. Cons. R. 458; 23 Lav; Library 427, and cases there cited ; 2 Adams 27 ; 10 Ala. 527; 1 Hag. Ee. R. 776.</p> <p>2. That it is legal and meritorious in the wife to be patient as long as possible, and that the facts proven in this case did not amount to condonation on her part. — 6 Mass. 147 ; 1 Johns. Oh. 492; 3 Hag. Ec. R. 629; id. 351; 9 Conn. 233; 4 Paige 460; i Hag. 733, 752, 786, 793 ; 2 Barr 449.</p> <p>4. That the allegation of “ cruel, barbarous and inhuman treatment,” was fully sustained by the proof. — Lockwood v. Lockwood, 2 Curtis 281; 6 Bacon’s Abr. 500 ; Moyler v. Moyler, ll Ala. 620, and cases there cited.</p>

<p>Error to the Court of Probate of Madison.</p> <p>There is a manifest difference, if not a direct conflict, between the certificate sent down to the court below and the certified opinion, and again between the certified opinion and the reported opinion. In this conflict the certificate must govern; it is absolutely conclusive, and the primary court cannot receive any evidence of any kind to contradict it. The law makes it the duty of the clerk of the Supreme Court to certify to the primary courts every final judgment of tho Supreme Court. — (Clay’s Digest 809 § 14.) The entry on the minutes is the judgment of the court, and not the opinion. The same law that requires the judges of the Supreme Court to write out and file opinions on all material points, requires the same thing of tho circuit judges. — (lb. 286 § 6.) Suppose a circuit judge has written out an opinion in a case, giving his reasons for rendering judgment, and the case is reversed on error. Which is reversed, his opinion or the judgment ? The judgment certainly; otherwise, a- right judgment, if founded on a wrong reason, would.be reversed. The minute entry, then, must bo the judgment of the court. Here, then, is a sworn officer doing a particular act, which he is required by ¡aw to do, and it must import absolute verity.</p> <p>This certificate informed the primary court that its decree had been reversed and annulled,, because it required the executors to settle their accounts before the contests among the credi. tors were determined, instead of first hearing and deciding the contests among the creditors. None but an ascertained or admitted creditor would have the right to litigate with the executor ; and it could not be determined who were in fact creditors, until the contests among those claiming to be such were settled. Even if the certificate was a total departure from the judgment itself, the primary court would be bound by it, and could not re* ceive any evidence to vary or contradict it; and the Supreme Court, in revising its decision, can only look to the evidence on which that decision was predicated.</p> <p>If the court should decide this point against plaintiffs in error, and look beyond the certificate, and set it aside as of no force, then it opens up the whole case, and leaves the court at liberty to reconsider the points formerly decided in the case. In this event, the following suggestions are submitted on those points : An executor derives all his rights and powers from the will of the testator. With one or two restrictions, he can do anything before probate that he can after it. The court confers on him no new rights or powers. — 1 Williams on Executors 171, 172, 173. Our statutes have somewhat modified the common law, and imposed some new restrictions, but none of those affect the question. The executor holds hi3 office by appointment of the testator, and not by appointment of law ; he holds independently of the law, and may rightfully hold in defiance of it: the law cannot deprive him of his office. The will invests him with the property, to be held by him as a trustee for legatees and creditors. This trust is created by a man, and not by law, and therefore partakes of the nature of a contract. The law can no more deprive him of this trust, than it could if it were created by deed; the trust stands upon the same footing as all other trust deeds. Again; by the will, the executor acquires personal rights : 1 st, he has a right to retain money due to him by his testator, (Milam v. Ragland, 19 Ala. 85;) 2nd, he has the right to retain for a debt due to him, even though it is barred by the statute of limitations, (Knight v. Godbold, 7 Ala. 804 ;) 3rd, if he has paid debts with his own money, the assets to that amount become his, (Merchant v. Driver, 1 Saund. 307; 3 John. Ch. 312; Hall v. Chenault, 13 Ala. 710.) If you remove him from his office, you deprive him of each of these rights.— In Shortridge v. Easley, 10 Ala. 520, this court say, that the act of 1843 takes away the executor’s general right of retainer; and it may be clearly inferred from the ease, that this common law right existed here until this act. If you remove him, you destroy the protection which the law threw over his debt, and subject it to the statute of limitations; you deprive him of all the notes and money, notwithstanding he may have paid debts to the amount of them. It sometimes happens that an executor pays debts in full, supposing the estate to be solvent, or in ignorance of debts contracted out of the State. If the act of 1843 is made to relate back, and govern the prior report,, the executor is deprived of all these rights. The report of insolvency by the executors in this case, as the law then stood, did not deprive them of their office, nor did it put it in the power of any officer of the law to deprive them of it. Nor can the act of 1843 be made to retroact on the report, and give it an effect which it did not have when made. It may well be doubted whether the legislature had any such power; but it is enough for the argument that they have not attempted to exercise it: the act itself shows that it was intended to be prospective only. Phillips v. Gray, 1 Ala. 226 ; Martin v. Baldwin, 7 ib. 923 ; Gould v. Hayes, 19 ib. 429.</p> <p>If this be so, then nothing less or other than a report and decree after and under the act of 3 843, can deprive the executor of his office. All the court could do would be, to make distribution of the assets in his hands according to the statute in Clay’s Dig. 194 § § 10,11, 12.</p> <p>The Probate Court was proceeding to do just what this court determined at January term, 1862, ought to be done. — Steele v. Weaver’s Executors, 20 Ala. 540 ; Weaver’s Executors v. Weaver’s Creditors, ib. 557. The court below, therefore, committed no error, and plaintiffs in error should be taxed with the costs individually.</p>

<p>1. A stranger to a contract cannot enforce it by suit.</p> <p>2. The hirer of a slave is liable to a physician for medical services rendered him, independent of any contract to that effect with the owner.</p>

Heard before the Hon. J. W. Lesesne. The bill was filed by the Branch Bank at Mobile against the plaintiffs in error, to foreclose a mortgage. The facts sufficiently appear from the opinion.

<p>1. In a claim suit under the statute, wlicro the plaintiff in execution attacks the bona fides of the deed executed to the claimant pj the defendant in execution, as having been made with intent to hinder and delay the grantor’s creditors, evidence that the grantor executed another deed on the same day to the same grantee, who was his son and a minor, that the grantor was in embarrassed circumstances at the time, and that the two deeds conveyed all his property in this State, is relevant to the issue, and its weight must be determined by the jury.</p> <p>2. The assent of a creditor tq a deed of trust of which he is the benefieiary will be presumed, and the deed becomes perfect on its execution as against other judgment creditors who afterwards levy executions on the property; but if the deed is made with intent to hinder and delay creditors, an actual assent by the benefieiary before the levy of an execution is necessary, to render it valid as against the plaintiff in execution..</p>

Tried before the Hon. Alex. McKinstky. This was a summary proceeding under the statute, in the name of the Governor, for the use of Chamberlain & Co., against the sureties of George Huggins, late sheriff of Mobile, on the following facts, constituting an agreed case : “ Whereas, under and by virtue of an attachment in favor of Chamberlain & Co. v. James J. Dyer, the sheriff, Huggins, who departed this life before the commencement of this action, seized and took into his…

Tried before the Hon. Alex. McKinstry. 1. The court erred in overruling the demurrer to the declaration. The averment that the capias was “ marked and endorsed for bail,” was not sufficient. — 1 Saunders’ PI. & Ev. 188, 479; 2 Chitty’s Pleading 789, 446, and notes; Nightingale v. Wilcoxon, 15 E. C. L. R. 57; Sharpe v. Abbey, ib. 418. 2. The demurrer to the second plea should have been overruled. The plea shows that the debtor was legally discharged. —Clay’s Digest 70 § 3.

<p>Error to the Court of Probate of Autauga.</p> <p>The legal questions involved in this case Arose upon an issue contesting the report of insolvency made by the defendant in error as administrator of Bartley L. Cox. On the trial, the said administrator introduced the following deed, after having proved its execution:</p> <p>“The State of Alabama, day of February, 1849, between Bartley L. Cox of the first part, and James Ramsay of the second part, witnesseth : That Autauga County. the said Bartley L. Cox, for and in consideration of the natural love and affection which he bears towards Penelope E., his wife, and the sum of one dollar to him in hand paid by said Ramsay, has given, granted, bargained, sold and conveyed, and by these presents doth give, grant, bargain, sell and convey the following negro slaves, to-wit: Anthony,” &c., “and their increase, to have and hold said slaves to the said James Ramsay, for the use, benefit and behoof of the said Penelope E., wife of the said party of the first part, forever ; Provided, however, that the title or property in said slaves shall be and remain in the said Ramsay, for the use and behoof of the said Penelope E,, her heirs, executors and assigns as aforesaid, during her natural life only; at the termination of which natural life of the said Penelope E., the title or property in said negroes and their increase to descend to and vest in the issue or bodily heirs of the said Penelope E., should she have borne any such by the said party of the first part, should any of which said heirs be living at the termination of the natural lile of the said Penelope E.; but should the said Penelope E have borne no bodily heir or heirs by the said party of the first part, which said heir or heirs shall be living and survive the said Penelope E., then, and in that event, the title and property in said slaves to revert and remain in said party of the first part, and should said party of the first part depart this life before, and leave the said Penelope E. living, then the title and property in said slaves and their increase shall descend to the heirs at law of him, the said party of the first part. And it is further expressly understood, by and between trie parties to these presents, that said slaves and their increase shall be and remain in the possession of the said James Ramsay, for the use, benefit and behoof of the said Penelope E., her heirs and assigns forever, and that all and singular the benefits, proceeds, &c., arising from the labor, increase, &c. of said slaves, to go to the said Penelope E, during her natural life ; should said life terminate before that of said party of the first part, then said slaves to descend and bo divided among the bodily heir or heirs by the said 'party of the first part of the said Penelope E., if any, and should there be no such bodily heir or heirs, then to the heirs at law of the said party of the first part as aforesaid. And it is further understood by said parties, that should it at any time hereafter be necessary to dispose of said negroes, or either of them, or their increase, by sale or otherwise, with the consent of the said Penelope E., the said party of the second part is hereby empowered to do the same, provided it can- be done for the benefit or interest of the said Penelope E., and before the death of said party of the first part. In testimony whereof we have hereunto set our hands, and affixed our seals, the day and date aforesaid.</p> <p>Bartley L. Cox, [Seai.]</p> <p>James Ramsay, [Seai.]”</p> <p>This deed was recorded, but not in the mode required by the law. It was admitted that Bartley L. Cox was married to the said Penelope E. at the execution of the' deed ; that they lived together as man and wife up to the time of his death, which was in February, 1851; that he died leaving no child or children by the said Penelope E., who survived him, and was then living ; that the slaves specified in the deed remained in his possession up to the time of his death; that after the death of said Cox said Ramsay took out letters of administration on his estate, returned the slaves in his inventory as belonging to the estate, hired out the same, and took notes for their hire payable to himself as such administrator; but that he subsequently applied for leave to amend his inventory so as to leave out said slaves, and leave was given that he might so amend. It was also admitted that he applied a portion of the hire of said slaves to the payment of the debts due by said Bartley L. Cox; that there had been no reconveyance of said slaves by Ramsay to Bartley L. Cox, and that if the slaves specified in the deed are not assets of the estate, the same is insolvent, but if assets, the same is solvent as to all debts which had been presented.</p> <p>Upon this state of facts the court charged :</p> <p>1. That said slaves were not assets of the estate of Bartley L. Cox;</p> <p>2. That upon the whole evidence the jury should find that the estate was insolvent.</p> <p>There were other charges given, and also sundry charges requested by the plaintiffs in error, which it is unnecessary particularly to notice, as the legal questions presented are considered by the court upon the second charge above stated.</p> <p>The charges given are here assigned for error,</p>

<p>1. An execution in the name of “Henry W. Collier, use of officers of court,” is not void, but furnishes a protection to the officer levying it, if issued by a court of competent jurisdiction; the words “ use of officers of court” may be rejected as surplusage.</p>

<p>Error to the Circuit Court of Talladega.</p> <p>Tried before the Hon. Robert Dougherty.</p> <p>Debt by Ezekiel McCravey, as executor of Kinehen Carr, deceased, against Walton Wylay, upon a bond payable to said Carr. The declaration concludes with a profert of plaintiff’s letters testamentary. The defendant craved oyer of the bond and condition, and of said letters testamentary, and demurred, “ in short by consent, to the precedent matter and declaration.” The condition of the bond, as set out on oyer, was as follows : “ The condition of the above bond or obligation is such, that whereas the said Carr guarantied for said John W. Walker on his hid for carrying the mail on route 3315, from Gainsville to Spring Place, in, through and by said Wyley’s influence and persuasion, Avhich said contract the said John W. Walker has refused to execute ; Now, if the said Wyley does and Avill stand betwixt the said Carr and the General Post Office Department, SO that the said Carr has no more trouble and expense, and releases the said Carr from all responsibility and damage in said matter, then the above bond to bo void,” &c. The letters testamentary which were set out, were granted in Georgia.</p> <p>The court sustained the demurrer, and plaintiff took a non-suit. The ruling of the court upon the demurrer is now assigned for error.</p> <p>1. We insist that debt is a proper remedy “ on bonds conditioned for the payment of money, or the performance of any other act, by or against the parties and their personal representatives.” — 1 Chitty’sPl. 109; Herndon v. Forney, 4 Ala. 243.</p> <p>2. Where plaintiff’s act is procured by the defendant’s request, a subsequent promise is not a naked one. — Chitty’s Con. 62 ; 1 Smith’s Loading Cases 167, and cases cited; Com. Dig. Ac. Con. B. 1312; 1 Saunders 264 note 1; Lord Suffield v. Bruce, 2 Stark. R. 175 ; 1 Roll’s Ab. 27, 49; Child v. Mosely, 8 Term R. 610 ; Stokes v. Lewis, 1 Term R. 20; Hayes v. Warner, 2 Str. 933; Dumford v. Mester, 5 M. & S. 446; Livingston v. Roper, 1 Caines 584; Comstock v. Smith, 7 Johns. 87, and cases cited in note; Parker v. Crane, 6 Wend. 647.</p> <p>Again; “ where the consideration is executed, unless there has been an antecedent request, no action is maintainable upon the promise, for a request must be laid in the declaration and proved, if put in issue at the trial.” — Child v. Mosely, 8 Term Rep. 610; Stokes v. Lewis, 1 Term Rep. 20; Naish v. Tat-lock, 2 H. Black. 319; Hayes v. Warner, 2 Str. 933 ; Richardson v. Hall, IB. & B. 50.</p> <p>It will be found on examining the condition of the bond that it acknowledges “Carr guarantied for Walker in, through and by the said Wyley’s influence and persuasion,” and this express promise is founded on that fact, and it brings the case fully up to the rule laid down in the above cases. It is not necessary that the defendant should have requested plaintiff' to do some act beneficial to him, in order to support a promise to pay, subsequently made.</p> <p>As to moral obligation being sufficient consideration for subsequent express promise, see Vaneev. Wells,6 Ala. 737; Same v. Same, 8 ib. 399; Harris v. Davis, 1 ib. 257; Westmoreland v. Davis, 1 ib. 299 ; Barron v. Vantvert, 13 ib. 232.</p> <p>1. The instrument sued on, and set out fully on oyer in the demurrer, was executed in Georgia. No averment is made as to any statute law of Georgia. The eomrnon law is presumed to be in force there, and by the common law the said instrument is void for uncertainty, and also for want of sufficient consideration. It is nudu/tn pactum. — Beall & Co. v. Ridgway, 18 Ala. 117 ; Holt v. Robinson, 21 ib. 106 ; Kirksey v. Kirksey, 8 ib. 131; Duncan v. Hall, 9 ib.</p> <p>2. A mero moral obligation, though coupled with an express promise, is not a sufficient consideration to support a bill, note or bond between the same parties. An express promise can only revive a precedent good consideration, which might have been enforced at law through the medium of an implied promise, had it not been suspended by some positive rule of law; but can give no original cause of action, if the obligation on which it is founded never could have been enforced at law. — Nash v. Russell, 5 Barb. S. C. R. 556; 21 Ala. 106; 7 Conn. 57 ; 11 Adolph. & Ellis 438 ; 3 Bos. & Puller 249, note A ; 7 Term Rep. 348. There was no legal obligation — no legal consideration. A legal obligation is “one inferable by law.” — 5 Barb. S. C. R. 558, supra; 18 Ala. H7, supra.</p> <p>3. It is clear that, until the bond was executed, Wyley was not legally liable in any manner to Carr. If there was any consideration, it was “a past consideration.” The consideration of the bond is recited and shown in the condition thereof, to-wit: that Carr had previously guarantied Walker’s bid “in, through and by said Wyley’s influence and persuasion,” which said contract Walker had previously refused to execute. This consideration being thus-shown by the bond, and being set forth on oyer and demurrer, and being insufficient, the court was authorized to sustain the demurrer. — 14 Ala. 23.</p> <p>4. A “ bid for carrying the mail on route 3315, from Gains-ville to Spring Place,” is not a- contract. Nothing else like a contract by Walker, is shown by the bond. Yet the bond says: “ which said contract the said J. W. Walker has refused to execute.” Parol evidence cannot be received to add to or vary the provisions of the bond. The bond itself, without parol evidence which does add to or vary it, is wholly uncertain, if not senseless and unmeaning. It must, for this uncertainty, be held void.</p> <p>5. But if the bond is not void for uncertainty, what does it mean 1 The bond provides that it shall be void “if the said Wyley does and will stand betwixt the said Carr and the General Post Office Department, so that the said Carr has no more trouble and expense, and releases the said Carr from all responsibility in said matter.” Now what is meant by the words “said matter55 % There is nothing in the bond to which those words can refer, except the guaranty of Carr for Walker on his bid for carrying the mail. If the bid was the “said matter,55 then Walker had the right to “refuse to execute55 it at any time before its acceptance, for no bid is binding until accepted.</p> <p>6. If any action can be maintained on said bond, it is covevant, not debt.</p> <p>7. The plaintiff makes profert of his letters testamentary in his declaration, but does not aver in what State his letters were granted. The legal implication from his declaration is, that his letters wore granted in Alabama, where he sues ; but on oyer and demurrer, it appears his letters were granted in Georgia.</p>

<p>Error to the Court of Probate of Benton.</p> <p>This was a proceeding by supersedeas in the court below, at the instance of Williams, one of the defendants in error, by way of petition, praying that a certain execution in favor of the plaintiff in error, and against the defendants, might be superseded and quashed. The petition presents the following grounds as a predicate for its prayer : It sets out tiie execution then running, in which said execution it is recited that it is issued on a judgment or decree of the Orphans’ Court of Benton Countj7, rendered on the 17th day of January, 1845, at a special term of said Orphans’ Court, for the sum of $620 24 in favor of the plaintiff in error, and against Wm. C. Price, ex officio administrator of the estate of James Riddle, deceased, and against the petitioner and one Haynes, as his sureties on his-official bond as sheriff of Benton County. The petition denies the truth of the recitals of the execution, and alleges that there is no such judgment in existence as the one recited, but that the judgment was against Price alone, and not against him and his sureties.</p> <p>It denies that any execution was ever regularly issued on said judgment against said Price, and returned “no property found” as to him, so as to authorize a statutory judgment and execution against his sureties on said judgment; states that, on the margin of said judgment or decree appear certain entries, as follows : “Fi. fa. April 22, 1345, to W. J. Willis, sheriff.” “Fi. fa. returned ‘no property found,’ April 25th, 1845.” “Alias fi. fa. issued 28th April, 1845, to W. J. Willis, sheriff, against sureties.” “Pluries fi. fa. issued Dec. 4,1845, to W. J. Willis.” “Pluries returned ‘no property found,’ Jan. 17,1846.” “ Alias pluries fi. fa. issued 19th December, 1850, to C. Sublott, sheriff.” But it denies that said entries are evidence of an actual issue and return of said executions, and that no other evidence of said issue and returns appear of record than as above stated; alleges that, if executions were in fact issued on said judgment, they were irregularly issued, and void as to the sureties of said Price.</p> <p>The petition further alleges, that the judgment rendered against Price, the principal, being in favor of the plaintiff in error as administrator de bonis non, and not in favor of the heirs or distributees of the estate, is void, as there was at the date of said judgment no law authorizing the court to render such a judgment in favor of said plaintiff in error, and therefore an execution issued on said judgment, as against the petitioner and said Haynes, sureties of said Price, is also wholly void.</p> <p>The petition further alleges, that the claim sought to be enforced against the sureties by the execution is barred by the statute of limitations of six years, as more than that space of time has elapsed since the liability, if any, accrued by reason of the default of the said Price ; and further, that the plaintiff in error has made a final settlement of the estate, and been discharged from any and all liability on account of said judgment or decree against the said Price, and therefore he is not the proper party to enforce the liability against the sureties of said Price, if any such liability exists, but that the heirs or distributees of the estate of the said Riddle are ; and for these reasons he prays that the execution bo superseded and quashed.</p> <p>The plaintiff in error demurred generally to the petition, and also particularly to each portion of said petition setting out a separate and distinct ground for quashing the execution. These demurrers were overruled ; and on the trial a bill of exceptions was taken, from which, as well as from the agreement of counsel, the following facts appear :</p> <p>On the 17th day of January, 1845, a judgment was rendered in favor of the. plaintiff in error, as administrator de bonis nop of the estate of Riddle, and against said Price, as administrator ex officio as sheriff of Benton County, for the sum of $620 24. Then there was read in evidence the entries above recited, of the issue and returns of the several executions as above recited, proved to bo in the hand-writing of the person who was clerk of the Orphans’ Court of Benton County at the time the same purport to have been made. It was proved that the original execution was lost. There was also produced and read in evidence what purports to be a pluries fi. fa., dated the 4th December, 1845, against all of the defendants, Price, Williams and Haynes, and reciting a judgment existing in said court against all of said defendants 5 and also the alias pluries fi. fa. which is the one sought to be superseded and quashed. The facts agreed upon between counsél are: That the defendants, Williams and Haynes, became the sureties of said Price, as sheriff of Benton County, on the 29th day of July, 1849 ; that said bond was duly approved, and is to be considered as in evidence; that said Price acted as sheriff under said bond, until the expiration of his term of office, which was the 4th of March 1842, when his connexion with the estate of Riddle, of which he had been ex officio administrator, ceased ; Price had been sheriff of Benton County before the defendants, Williams and Haynes, became his sureties, and on the 26th day of December, 1889, he was, as said sheriff, appointed administrator with the will annexed of the said James Riddle, deceased, and had acted as such continuously from that date until the 4th of March, 1842, when ho ceased to be sheriff of said county. The judgment against the said Price in favor of the plaintiff in error as administrator de bonis non, rendered the 17th January, 1845, was for moneys collected by the said Price as such administrator and not paid over or accounted for in any manner whatever.</p> <p>The court below quashed the execution on the above evidence, and the plaintiff in error here assigns for error the ruling of the court in rendering said judgment, and also the overruling of the several demurrers to the petition for the supersedeas.</p> <p>The petition does not set forth any facts showing the illegality of the execution. The moro fact that there was no judgment of record against the sureties, is insufficient to authorize a supersedeas, because there may be an execution against the principal and his sureties, in the absence of a judgment of record corresponding as to parties with the execution. The officer issuing the fi. fa. must bo presumed to have acted legally : it must be presumed that no had the authority prescribed by the statute, for the issue of the process, fhe onus is on the petitioner, to show that the clerk had not authority for his act. Hence, the averment that there was no judgment of record, is not enough : it does not negative the existence of the facts which constitute the statutory judgment, and which must be presumed to exist. The law does not require a recital in the execution of the facts which authorize its issue —Clay’s Dig. 305 § 25 ; 16 Ala. 368; 3 ib. 285; J2Í&.561.</p> <p>The averments that no legal execution had issued within a year and a day, and that petitioner was satisfied the executions were not legally returnable, must be disregarded, because they are conclusions, not facto. The petition does not slate that the execution against Price, the principal, was returnable into the Orphans’ Court: the statement is, that it was the custom of the clerk, in similar cases, to issue executions returnable into the Orphans’ Court. .</p> <p>The absence of liability cannot be inferred, in favor of Williams and Haynes, because they became the sureties of Price two years arter his appointment as administrator. Notwithstanding that fact, his defaultlmay have taken place after they became his sureties, and in that event they would be liable.</p> <p>The judgment against Price was voidable, not void. It might have been reversed on error, because not rendered in favor of the person designated by law ; but the court had jurisdiction of the parties and subject matter, and hence its judgment is simply voidable. The statute authorizing executions against the sureties of administrators, does not prescribe the plaintiff: the only pro-requisites are, a decree on final settle ment and a return of nulla bona against the principal.— 6 Porter 218; 19 Ala. 228 ; ll ib. 579 ; Clay’s Digest 805 § 45.</p> <p>The bar of the statute of limitations of six years is not shown by the averment and proof that Price’s office expired six years before the issue of the particular execution sought to be superseded, as previous executions had issued. The plea of the statute cannot be sustained by proof of the expiration of six years before the issue of the pluties. It might be otherwise, if six years had elapsed before the return of nulla bona on the execution against him. The return oí nulla bona on the execution against the principal, perfected a judgment against the sureties; and they must show that the bar was complete at the date of the return of nulla bona, because on that day there was a judgment against them.- — -Thompson v. Bondurant, 15 Ala. 351 ; Clay’s Digest 304.</p> <p>The statute of limitations of six years does not apply in behalf of a sheriff’s sureties, as to his defaults as administrator. When the sheriff is appointed administrator, his official bond becomes an administration bond, it is not the bond of a “public officer,” for this purpose. Otherwise, the security provided for those interested in estates administered by the sheriff, is less than the security provided in other cases. The statute says, that judgment ma.y be rendered on his bond “in the same manner as on other bonds of administrators.” — Digest 222 b 10, 329 § 91.</p> <p>The order appointing Price administrator docs not show that he was sheriff of Benton County.</p> <p>There is no evidence in the record that his term of office had expired before Hanna was appointed, or that he had been removed. This is fatal to the jurisdiction of she court: it could not appoint Hanna, until Price was removed, or his letters in some way revoked.</p> <p>The court had no jurisdiction to render a judgment, and award an execution, in favor of an administrator de bonis nonf in January, 1845, and the act of 1846 has no effect to cure the proceeding. — Price v. Simmons, 13 Ala. 750 ; Willis v. Willis, 9 Ala. 722. The money collected by Hanna would not be assets in his hands, especially as he had made final settlement before the ft,, fa. issued.</p> <p>The sureties of Price can make the question of jurisdiction. The motion, as to them, does not come up collaterally, but directly. This is the first opportunity they have had to contest their liability, and the proceeding is in the nature of a suit as against them. This being a summary, statutory proceeding, every fact necessary to support the jurisdiction of the court must exist at the time they are sought to be charged: no intendments can be made to support it. If it be said that the judgment was conclusive as to Price, it must be because of his mispleading or failure to plead ; and while he might stand charged individually by the judgment, he could not be charged as an administrator. Neither would the rights of distributees or legatees bo affected by a payment of this judgment to Hanna; they might proceed again. — Poacher v. Weisinger, 20 Ala. 102; Crenshaw v. Hardy, 3 Ala. 658.</p> <p>There can be no judgment without a record to support it. The only evidence to support a statutory judgment against the sureties of an administrator is, the judgment against the administrator, the issue of an execution thereon, and its return “no property found.’5 If the fi. fa. was issued and lost, that fact should appear, and its contents bo proven. The more entry on the minutes, in the absence of other proof, was insufficient to support such a judgment.™Jenkinson v. Gray, 16 Ala. Rep. 101.</p> <p>The execution should have been superseded, because it does not appear that any execution was issued within a year and a day after the return of “ no property found” against the principal. The entry on the minutes “ (¿lias fi. fa. against sureties, April 28,1845,” is no proof that execution issued against them.</p> <p>The appointment of a sheriff as administrator attaches to the office, and not to the person. VI/hen his office as sheriff expires, ho can do no act to render Iris official sureties liable : his letters are revoked by operation of law. The subsequent act in relation to the statute of limitations on sheriffs’ bonds, includes every character of liability against them. — Governor v. Stonum, 11 Ala. 681. And the statute begins to run, when the liability of the surety is conclusively ascertained. In this case, the default of the sheriff must have been committed while he was in office, prior to the 4th March, 1842, and the alias •pluries fi. fa. was issued in 1850, and was the first process of any validity on its face which has been issued on tlio judgment.</p>

Tried before the Hon. Nathan Cook. The appellant, Lindsey, sued Jones to recover fifty dollars and interest, and the parties agreed upon the facts, which wore submitted to be tried by the court… Held: that these facts did not entitle the plaintiff to recover, and gave judgment for cost against him ; from which he appealed to this court, and here assigns the judgment on the facts for error.

<p>Error to tho Chancery Court of Montgomery.</p> <p>Heard before the Hon. J. W, Lesesne.</p> <p>The bill was filed by tho defendants in error for an account of copartnership dealings, and to enforce a trust in certain lots in the City of Montgomery, which the bill charges were purchased by Owens, and the title taken in his own name. The hill also charges in relation to these lots, that it was agreed between the parties, that the purchase should be made for their joint uso and benefit, and for that purpose that certain moneys in the hands of Owens belonging to Collins should be used, Owens having the management of the whole matter ; that the purchase of the lots ivas made by Owens in September, 1844, as the partner of the complainants, with tho partnership funds, and for the joint benefit of tbe partners; that after the purchase he divided the lots into three parts, one of which was assigned to one Allen, who was interested in the purchase, one set apart for himself, and the other for the complainants ; that Owens concealed the fact of the purchase from the complainants, and slandered the title to induce them to abandon the purchase; that he holds the lots as his own, &c.</p> <p>The answer of Owens denies the agreement that he was to buy the lots for the benefit of the firm, but insists that the agreement was, that if Collins should collect certain moneys, and the titles to the lots were good, then he was to purchase with the money of Collins, retain two-thirds of the lots as his own, and. the remaining third to he for the firm ; that this was the understanding until August, 1846, when the authority to use the money of Collins for the purchase was revoked by him, which put an end to the agreement; that he made the purchase on his own account, and with his own money, and lie also alleges, that in November, 1846, Collins, with a full knowledge of the purchase, demanded the money left in his hands ; and that a portion of it was, by his direction, invested in the purchase of a note, Collins at the time disclaiming all interest in the lots, hut claiming the money.</p> <p>The evidence upon the points in controversy, is sufficiently referred to in the opinion of the court. The decree directed an account of the partnership concerns, and also decreed the title of one-third of the lots purchased to the complainants, and the delivery of the possession accordingly.</p> <p>The decree of the Chancellor is here assigned for error.</p> <p>1. There is a resulting trust in the lands, only when the purchase is made with another’s money, furnished at the time for the purpose, under some agreement to that effect between the parties. — r2 Story’s Eq. § 3201; Wallace v. DuffielcI, 2 Scrg. & R. 629; Kislcr v. Easier, 2 Watts 328; Graves v. Bargan, 6 Dana 881.</p> <p>2. A subsequent tender or reimbursement would fce evidence of some contract, hut creates no trust. — Botsford v. Burr, 2 Johns. Ch. 406 ; Foster v. Trustees &c , 3 Ala. 802 ; and cases supra.</p> <p>3. Declarations which are unequivocal, that one purchased for another, unless there was an agreement or advance of money for that purpose, do not create is trust. — -Taliaferro v. Taliaferro, 6 Ala. -101; and cases supra.</p> <p>4. Trusts must be eertaio and definite. Although a trust of some kind is clearly created, yet, if its terms are so vague that the character, subject and objects of the trust cannot also bo clearly ascertained, it must fail. — 2 Story’s Eq. § 979 et seq.</p> <p>5. A declaration of trust purports to be, and is in form and substance, a completo transaction, and requires nothing more to be done. Then: must be an intention to create a trust, and the act or declaration to carry out that intention must not only be completed, but must create the trust. — -McFadden v. Jenkins, 1 Keen (15 En. Oh. XI.) 558; Walwyn v. Coutts, 3 Sim. (5 En. Oh.) 1-1; Beatson v. Beatson, l2Sim. 291; Coleman v. Sarel, 1 Vescy 50 ; Ellison v, Ellison, 6 ib. 656 ; Antrobus v. Smith, 12 ¿6. 46; Pulvertoft v. Pulvertoft, 18 ib. 149; Edwards v. Jones, 1 M. & Cr. 226; Dillon v. Coppin, 4 ib. 647 ; Cunningham v. Plunkett, 2 Y. & C. 245.</p> <p>6. Tf the declaration or trust is incomplete, a meritorious consideration is not sufficient to enforce it, — Meek v. Kettlewell, 1 Hare 474; Holloway v. Headington, 8 Sim. 324; James v. Bidder, 4 Beav. 600; Jeffreys v. Jeffreys, Cr. & Ph. 138; Caldwell v. Williams, 1 Bailey’s Eq. 175; 5 Watts 389; Minium v. Seymour, 4Johns. Ch. 497 ; Ageev. Steel, 8 Ala. 948; Taliaferro v. Taliaferro, 6 ¿6.404; Forward v. Armistead, 12 ib. 124; 2 Story’s Eq. § § 706, 793, 973.</p> <p>7. The intention may be proved by the act or declaration itself, if it be completed, but if necessary to inquire into its origin, then there must be a valuable consideration to support it.— See cases cited on third point, supra, particularly McFadden v. Jenkins. 1 Keen 558.</p> <p>8. The intention may be proved by the act itself, or by parol declarations, or by circumstances ; but it may also be rebutted in a like manner, even though the act or declaration on its face creates a trust.--Botsford v. Burr, 2 Johns. Ch. 405; Steen v. Steen, 5 ib. 1; Squire v. Campbell, 1 M’yl. & Cr. 489; Phillips v. Craymond, 2 Wash. C. C. 441 ; White v. Carpenter, 2 Paige 217 ; Page v. Page, 8 N. Hamp. 187 ; Foster v. Trustees &c., 3 Ala, 302; Bishop’s Heirs v. Bishop’s Adm’r, 13 Ala. 476. ■</p> <p>9. 'When the party doe;’ not intend to give or part with the dominion of the property, he may retain it, although he may have executed a deed and declared the trusts, when it is voluntary. — Walwyn v. Coutts, 3 Sim. 14; Kennedy v Kennedy, 2 Ala.; Hughes v. Stubbs, 1 Hare 476; Gaskell v. Gaskell, 2 Y. & J. 502, cited in Law Library for July, 1849.</p> <p>10. For specific performance, tbo contract must be proved and performed by the complainant; and to take it out of the statute of frauds, when it is parol, ho must have paid all the purchase money, and been let into possession under the contract. —Goucher v. Martin, 9 Watts 106; Haslet v. Haslet, 6 Watts 464.</p> <p>11. To obtain performance, there must be an agreement for a specific priee, and for a specific piece of land or interest therein, and the terms of the contract must be certain. — 2 Story’s Equity § § 742, 751, 757, 761, 762, 764, 769, 770, 771, 793 a; Batten on Specific Performance 60, 108; 5 Beav. 433 ; Thompson v. Thompson, Í Coll. 380; Sparling v. Parker, lfi Law J. N. S. Eq. 13.</p> <p>12. When the answer denies the existence of the parol contract, and insists on the statute of frauds, the bar is complete. 2. Story’s Eq. § 758, and cases cited in note.</p> <p>13. A trust or interest in lands may be waived or discharged by parol. The stature interposes no bar to this. — Botsford v. Burr, 2 Johns. Cb. 406 ; Price v. Dyer, 17 Vesey, 356; Phillips v. Craymond, 2 Wash. C. G. 445 ; 2 Story’s Equity § § 1202, 1262, 1263.</p> <p>14. A party having a resulting trust in lands, has the right to elect which he will take, the money or the lands, and having once elected ho is bound by it. -2 Story’s Equity § § 1262, 1263.</p> <p>15. If relief is denied to ono complainant, the bill must be dismissed as to all. — Hardeman v. Sims, 3 Ala. 747 ; Wilkins v. Judge, 14 Ala. 135.</p> <p>1. The principle of trust and trustees should be applied to the parties in this case, upon the equitable principle that where one takes a conveyance in his own name, which he undertakes to obtain for another, equity will consider him as holding it in trust for his principal. — 2 Story’s Equity § 1211, and authorities there referred to. This principio is illustrated by a great variety of cases in the hooks, many of which will he found collected in Kennedy v. Kennedy, 2 Ala. R. 588. If these three partners had placed money in the hands of another person, to be applied by him in making this purchase for thorn, and he should make the purchase, taking the title in his own name, and after-wards refuse to convey, would not a court of equity compel him? and if a partner is thus entrusted, and thus promises, does lie occupy a better position ?</p> <p>2. Where real estate is purchased for partnership purposes, and on partnership account, it is wholly immaterial, in the view of a court of equity, in whoso namo or names the purchase is made : whether in the name of one partner, or of all the partners, or of a stranger jointly with one partner, it is equally deemed partnership property. — 2 Story’s Equity § 1207, and cases there cited; Hoxiev. Carr, 1 Sum. 182 to 186 ; Foster v. Hale, 3 Vesey 696 ; 5 Vesey 308, In the case at bar, the answers and proof show very clearly that the partners considered the purchase of these lots as necessary to the success of the partnership ; that Owens, one of the partners, was to make the purchase; that he had in his own hands all the funds of the partnership, and also those of Collins, with which to purchase. A trust, therefore, results, by operation of law, for the benefit of the partnership. The rule is the same in the case of joint purchasers. — 2 Vesey & B. 388 ; 3 Pr. Williams 158 ; 2 Story’s Equity § 1208; Leo v. Nutta.ll, 1 Russ. & Myl. 53.</p>

<p>Error, to the Circuit Court of St. Clair.</p> <p>Tried before the Hon. Thomas A. Walker.</p> <p>The plaintiffs in error sued the defendant in error for the rent of certain lands belonging to the estate of their father, John McLaughlin, deceased.</p> <p>On the trial it was proved, that the defendant rented said lands, as the administrator of said John McLaughlin, for four years, and had not complied with the terms of the lease. The defendant offered to prove that he had made a final settlement of the administration, and on such settlement had accounted for the rent; but it did not appear that the plaintiffs, who were minors when such settlement was made, had over had a guardian ad litem appointed, or that any such guardian appeared for them. To this evidence the plaintiffs objected; but the objection ivas overruled, and the testimony admitted. It further appeared that the land, for which the rent was claimed, was the plantation on which the intestate resided at the time of his death, and that no dower had ever been assigned to his widow.</p> <p>Upon this evidence the court charged, that the plaintiffs were not entitled to recover; to which, as well as to the ruling of the court upon the evidence, the plaintiffs excepted, and the same is assigned for error in this court.</p>

<p>Error to the Circuit Court of Benton.</p> <p>'Tried before the Hon. Geo. D. Shortridge.</p> <p>Appeal from a justice, on a. note for thirteen dollars made by Dickey, dated 25th November, 1848 and payable to Davis on the 25th November, 1849. The case, being under twenty dollars, was tried by the court, and the record show's that, after the introduction of the note, the defendant proved it was given for a clock, and then introduced a writing of which the following is a copy : “ This is to certify' that the clock is to keep good time, and if it does not, I ana to make it do so, either by repairs or exchange of clocks. 25th November, 1848. (Signed) D. B. Davis” : and proved that the writing ivas executed by the plaintiff at the same time with the note, and referred to the clock which was the consideration of the note. He also proved that the clock did not keep time but for a very short period after it was put up ; of which fact the plaintiff on being notified took out the works and put others in their place, after which the clock did not run more than twenty minutes. The witness who proved these facts also proved, that the clock for keeping time was entirely worthless, and that the defendant purchased it to keep time, On the part of the plaintiff it was proved, that the ease of the clock, without the works, was worth more than a nominal value; and this being all the evidence which enters into the opinion of the court, the court gave judgment for the defendant, which judgment is here assigned for error.</p>

<p>Error to the Circuit Court of Barbour.</p> <p>Tried before the Hon. Robert Dougherty.</p> <p>Motion to enter a judgment nunc pro tunc by David A. Bush against Ephraim Dickens. The record shows that Bush sued Dickens before a justice of the peace, and obtained judgments against' him in several cases, all of which Dickens removed by appeal into tho Circuit Court. At the Spring term, 1852, a judgment was rendered in said court, as follows :</p> <p>“ Came the parties by their attorneys, and the plaintiff moves to consolidate this and the seven following cases, which motion is granted ; and the parties having joined issue, there came a jury of good and lawful men, to-wit: &c., who upon their oaths say, they find for the plaintiff, and assess the damages at It is therefore considered by the court, that the plaintiff recover of the defendant the said sum so assessed, and fifteen per cent, damages on the same for frivolous appeal, and also the costs of suit.”</p> <p>In support of his motion, the plaintiff produced the judge’s docket, on which were the following memoranda in the handwriting of the presiding judge : “ This and the seven following cases consolidated“ Jury and verdict for plaintiff, and fifteen per cent, damages.” It also appeared that there were several promissory notes on file, among the papers of the cause, corresponding with the pleadings.</p> <p>On this evidence, the court entered judgment nunc pro tunc, as of the Spring term, 1852, for the amount of said notes and fifteen per cent, damages thereon, the plaintiff agreeing to remit the interest. This judgment is now assigned for error.</p>

<p>1. A judgment on verdict against the plaintiff in attachment is not conclusive evidence, in a subsequent suit on the bond, that the attachment was wrongfully sued out.</p> <p>2. The party excepting is only required to set out in the bill of exceptions so much of the evidence as may be necessary to show that the court erred in its ruling; and a reversal necessarily follows, unless the record also shows that no injury resulted from the error.</p> <p>3. When the bill of exceptions states that the ruling of the court “was objected to” at the time it was made on the trial, it is sufficient.</p>