Volume 24 — Alabama Reports

Robert Doughertv. Detinue by James R. Nelson against William Iverson, for the recovery of two slaves, which plaintiff claimed under a parol gift from his maternal uncle, Garland Dawkins. Tho principal facts of the case may be found in the previous reports of it in 17 Ala. 222, and 39 ib. 95. The additional facts necessary to an understanding of it as now presented, appear in the opinion. 1.

Tried before the Hon. Lyman Gibbons. Parham brought an action on the case against the plaintiffs in error, as co-partners and owners of the steamboat Wm. R. King, for the value of a slave named June, who was hired as a deck hand on the boat, and who, it was alleged, came to his death by the negligence of the defendants. It appears from the record, that on the night of the 5th Feb., 1847, a collision took place between the Wm.

Heard before the Hon. W. W. Mason. The facts upon which the complainant’s original bill was filed may be thus briefly stated: In 1836, a company was formed, consisting of James Hamilton, James L. Pettigru, J. C. Vaughan, John G. Coster, and A. E. & C. Hexier. The objects of the association were, originally, to buy and sel Hands on speculation, but afterwards the company engaged in the cultivation of cotton, and this formed a part of its regular business.

Tried before the Hon. John. A, Cuthbert. Robert R. Harrison, the plaintiff in error, was indicted for the murder of one George W. Gilbei t; was tried and found guilty, and sentenced to the penitentiary for the term of his natural life.

Tried before the Hon. Alex. McKinstry. 1. The indictment charged that the defendant “harbored and concealed” the slave. The charge of concealing was a substantive, descriptive, material one, and ought to have been proved as laid. — Roscoe’s Crim. Ev. 107, 109.

Tried before the Hon. Nathan Cook. was convicted at the Spring term, 1853, of the Circuit Court of Bibb, of an assault and battery on one Thomas Muse, and was fined $75.

<p>Appeal from the Circuit Court of Greene.</p> <p>Tried before the Hon.«Turner Reavis.</p> <p>The appellant, John C. Tucker, was indicted for selling spirituous liquors to “ one Dade Massey, a free person of color.” On the trial, as appears from the hill of exceptions, “several witnesses were introduced, who stated, that they had known said Dade for a long time ; that he had acted and been recognized as a freo man, residing in the State of Alabama for more than twenty years, and in Greene County two years ; that, from hearsay and general reputation,'' they had always considered him a free person ; that they did not know that he was born freo, or descended from free parents, or whether he was manumitted ; but that all they know of his being free was, from hearsay or general reputation, and from his acts and his being recognized as free.” The defendant objected to this evidence, but his objection was overruled, and he excepted.</p> <p>A person of color in this State is presumed to be a slave.— Field v. Hilly Walker, 17 Ala. R. 80. And this decision is supported by the various statutes regulating the manner of emancipation. The rule is universal, equally applicable to criminal and civil cases, that the best evidence the nature of the case admits of must be adduced. — 2 Mason 464 ; 6 Peters 352; 14 Peters 431; Ala. Rep. Evidence of hearsay and general reputation is only admissible as to pedigree, but not to establish freedom. — Davis et al. v. Woods, 1 Wheat. 6, and cases there cited ; 5 Ala. R. 361; 11 Ala. R. 720. The best and only evidence of the freedom of a colored person, in this State, is, a certificate, deed or will of manumission, or proof of descent from free parents; the latter of which cannot be resorted to, until the impossibility of obtaining the former is accounted for by the State. — 5 Ala. R. 357. Such testimony, clearly, would not be allowed under a petition for freedom, for the purpose of establishing freedom, or even the freedom of one’s ancestors. — 1 Wheat. 6. Much stronger the rule, then, ivhen applied to cases arising under penal statutes, where the strictest proof is required. In the construction of penal statutes, we are not allowed to conjecture what may have been the intention of their framers ; they must; in all cases; be strictly Construed.</p> <p>Although hearsay or general reputation is sufficient to prove pedigree, yet the authorities are conflicting, as to whether it is .admissible, in á suit for freedom, to prove the status of a party. 7 Cranch 295 ; 1 Wash. 123; 4 Rand. 621; 2 Wash. 64; 1 Hen. &. Mun. 388. But in a collateral issue of this sort, the State should not be held to as strict and direct proof, as in a suit for freedom ; hearsay should be admitt ed from necessity ; it is the highest evidence of which the nature of the case admits. In most cases, it wmuld be impossible to adduce any other kind of testimony ; no documentary evidence, perhaps, may exist; the person may have been born in a distant country.</p> <p>But the circumstance that the boy Dade had enjoyed freedom for twenty years, and had been recognized as such among his neighbors, is, of itself, sufficient evidence of his freedom. — The State v. McDonald and Armstrong, Coxe’s (N. J.) R. 332; Naylor v. Hays, 7 B. Mon. 478. He was proven to be a person of color; a person of color is an admixture of the white and black races, and is generally called a mulatto. — The State v. Davis, et al., 2 Bailey’s (S. C.) R. 558.- Although there is a presumption of slavei’y arising from a black color, yet there is none arising from a mulatto color. — Scott v. Williams, 1 Dev. 376.</p>

<p>1. Under the act establishing courts of probate, a judge of probate has power (now taken away by the Code) “to grant, hear and determine writs of habeas corpus” where the petitioner was confined m jail under a charge of grand larceny.</p>

Tried before the Hon. Thomas A. Walker. Assumpsit by the State of Alabama against the plaintiff in error, Jefferson C. Van Dyke, late Comptroller of Public Accounts; the suit being commenced by attachment, in November, 1851. The defendant craved oyer of the attachment, bond and affidavit, and demurred to the declaration.

<p>Appeal from the Circuit Court of Wilcox.</p> <p>Tried before the Hon. John Gill Shorter.</p>

Pickett, who was at the time a member of the House of Representatives, from Lawrence, against William Garrett, the Speaker of said House, to compel him to certify to the Comptroller of Public Accounts the amount to which the petitioner was entitled, for mileage, or per diem compensation, or both, accruing to him during the recess of the General Assembly, between the 20th of December, 1853, and the 8th of January, 1854.

The City Council of Montgomery, by its attorney, Thomas J. Judge, made application to the Supreme Court, by petition, for a mandamus against the Hon. Joseph W. Lesesne, Chancellor of the Southern Division of the State of’ Alabama, requiring him to dissolve an injunction which had been granted in a certain cause pending in the Chancery Court of Montgomery, wherein Marion A. Baldwin, Attorney General of the State, on the relation of George Montague and others, was complainant,…

Tried before the Hon. George D, Shortridge. This was an action of covenant, in the name of Henry W. Collier, Governor of the State of Alabama, against Samuel G. Frierson and his sureties on his official bond as State Treasurer ; the declaration assigning seven separate breaches.

Tried before the Hod. John D. Phelan. Action on the case by Benjamin A. Smoot against the Mayor and Aldermen of the City of Wetumpka, a municipal corporation, to recover damages for injuries sustained by plaintiff from the breaking down of a certain bridge in one of the streets of the city, while he was crossing it with his wagon and team; which bridge, the declaration avers, it was the duty of said defendants to keep in repair, but they wholly failed and neglected to…

Eekor to the Circuit Court of Russell. Tried before the Hon. John Gill Shorter. Ejectment by Bryant Duncan, as administrator of Catharine Golding, deceased, against William A. Golding, the plaintiff in error, to recover the possession of a tract of land containing eighty acres, as well as damages by way of mesne profits for its detention.

Tried before the Hon. Lyman Gibbons. Action on the case by John Burden against Albert Stein, to recover damages for defendant’s alleged diversion of the water of the Three Mile Creek from plaintiff’s mill.

Heard before the Hon. J. W. Lesesne. The record shows the following facts : One Henry F. Scruggs, being largely indebted to sundry persons, among whom was Eli M. Driver, his brother-in-law, executed a deed of trust for their benefit, on the 29th of June, 1889, to one James B. Tartt, as trustee.

Tried before the Hon. John D. Phelan. This was a proceeding on the part of Edmund King, one of the defendants in error, ou behalf of himself and others as creditors of the estate of Job Mason, deceased, against Jack Shackelford, the plaintiff in error. Said King and Shackelford were the executors of the last will and testament of Mason, letters testamentary having been granted to them, in 1821, by the Orphans’ Court of Shelby.

<p>Appeal from the Circuit Court of Autauga.</p> <p>Tried before the Hon. Nat. Cook.</p> <p>This was an action of slander, brought by Benjamin J. Drummond against Raymond Robinson. The declaration contained two counts, to each of which there was a demurrer. The demurrers were overruled, hut the plaintiff afterwards abandoned his first count. The defendant pleaded not guilty and justification. The facts are particularly noted in the opinion.</p> <p>1. If the words set forth in a count in slander are not actionable pe?’ se, an innuendo that by the speaking of such words the defendant meant to impute some felony to the plaintiff, will not help the count. Such count is defective, without an averment that the words were spoken with intent to charge a crime. —Andrews v. Woodmansee, 15 Wend. R. 232; Gibson v. Williams, 4 Wend. R. 321; Rundell v. Butler, 7 Barb. Sup. Ot. Rep. 260 ; Borland v. Patterson, 23 Wend. Rep. 422 ; Sasser v. Rouse, 13 Iredell’s Law Rep. 142.-</p> <p>2- If the words are not actionable per se, they will not support an action of slander, unless two things are averred and proved: 1st, that defendant meant thereby to impute a felony or crime ; 2d, that those who heard the words spoken, understood them to convey such slanderous imputation. The reason for this is, that both malice and damages must concur, in order to give a ground of action.</p> <p>3. Where a statute gives the right to defendant to plead as many pleas as he deems necessary to his defence, the exercise of that legal right cannot constitute a legal ground for increasing the plaintiff’s damages. Whatever may have been the common law, in a case where the plea of justification only was pleaded, can make no difference, in a case arising under our statute. — Montgomery v. Richardson, 5 Carr- & Payne 247 : Firmin v. Crucifix, 5 Carr, & Payne 97. These cases show, that the rule which applies where there is only one issue, has no application where there are several. If it be conceded that, at common law, the charge of the court was correct, our statute changes the common law in this respect. It would he strange to hold that where a statute gives the defendant a right, the exercise of that right should increase Ms liability. — Swails v. Butcher, 2 Carter’s (Indiana) Rep. 84: Wright v. Lindsay. 20 Ala. Rep. 428.</p> <p>4. One of several pleas cannot be (e given in evidence” by the plaintiff. — Harrington v. Macmorris, 5 Taunton’s Rep. 233 ; Wright v. Lindsay, 19 Ala. Rep. 428, In the assessment of damages, as well as in finding the facts, the jury are confined by their oath, and by the law, to the matters which are “ given in evidence.” If one of several pleas cannot becs given in evidence” by the plaintiff, the jury cannot consider it in mitigation, or in aggravation of damages. — Montgomery v. Richardson, 5 Carr. & Payne 247 ; Firmin & Crucifix, 5 Carr. & Payne 97.</p> <p>5. The charge cannot he supported; for it left the jury no discretion; it declared as matter of law, that they a must” consider the plea of justification, and the failure to prove it, in aggravation of damages-. This never was the rule, and never ought to be ; for cases can easily be imagined, where the failure to sustain such pica by proof, could not justly be taken as aggravation.</p> <p>6. The general rule excludes the opinion of witnesses. The opinions allowed as evidence in this case, do not fall within any exception to the general rule. — Sasser v. Rouse, 18 Iredell’s Law Rep. 142.</p> <p>7. The opinion of the witness as to how he understood the words, was irrelevant; for there is no averment that any person understood the words in any particular sense. — Before proof on that point could be admitted, it was essential that there should have been an averment to which it could apply.</p> <p>The case of Jackson v. Stetson et ux., 15 Mass. Rep. 43, is pronounced by Judge Woodbury4£ contrary to immemorial practice, as well as authority.” — Gilley v. Jenness, 2 New Hamp. Rep. 89, 90.</p> <p>1. The demurrer was properly overruled; because the words spoken contained an allusion to the averment ot the felonious' burning of the house, a statement that he had examined the tracks going to and fro, and that there was but one man inimical enough to do such a thing, viz . Drummond. The previous averment is, that he spoke these words ££ of and concerning the plaintiff.” The case cited from 23d Wendell sustains this declaration ; the first count sustained in that case is the only one analogous to this declaration. Reference may be made in a declaration to a previous count, -which has been held bad on demurrer, for dates, and, by parity of reasoning, to averments and inducements. — Mardis v. Shackelford, 6 Ala. 433 ; Morrison v. Spears, 8 ib. 93.</p> <p>2. If words are ambiguous, or doubtful in meaning, or in their applicability, plaintiff has a right, in an action of slander, to inquire how the bystanders understood them. — 2 Stark, on Slander, m. p. 51; 2 Sup. U. S. Digest, p. 326, § 229; 15 Vermont 245 ; Morgan v. Livingston, 2 Richardson 582.</p> <p>3. A plea of justification in slander, if not sustained, is an aggravation of the slander. — Lea v, Robertson, 1 Stewart 138 ; Nelson v. Nations, 5 Yerger 211; Jackson v. Stetson, 15 Mass. 48. Tho case in 2d Carter, cited by defendant, contains no reason for the opinión ; it is doubtless based on the opinion, that, if the testimony under the plea of justification fails to establish it, it may yet be looked to in mitigation. — See, also, U. S. Digest for 1850, p. 310, § 92; Shelton v. Simmons, 12 Ala. 466. The statute which allows a defendant to plead as many pleas as he may deem “ necessary to his defence,” is like any other law of privilege ; it must be exercised with reference to the rights of others ; as, the law of speech, of writing and publishing, of carrying arms, &e. It is not “ the exercise of that legal right,” but its abuse, which is made a “ legal ground for increasing plaintiff’s damages;” the failure to prove the plea, shows that it was not necessary to defendant’s defence. Our statute does not take away the common law liability as to such a plea; the extension of privileges cannot be argued as an exemption from the consequences of a malicious act. The plea of justification was not offered in evidence under the general issue. The slander was proved; and the charge was, that, if proved, the failure to sustain the plea of justification was an' aggravation.</p> <p>The case of Jackson v. Stetson, supra, has never been pronounced by Judge Woodbury “ to be contrary to immemorial practice, as well as authority ;” on the contrary, in the case cited in 2 New Hamp. 89, he decides, that where a creditor, in one count of his declaration, admits certain articles to have been returned, he cannot recover for those articles.</p>

<p>1. Under a count in an indictment for gaming, charging the defendant with playing cards “ at a storehouse then and there for retailing spirituous liquors,” no conviction can be had, upon proof that the playing took place “near a house formerly used for retailing, but which was not then so used.”</p>

Tried before the Hon. Turner Reavis. Detinue by Alexander Lawson, as administrator de bonis non of Elijah Lawson, deceased, against Thomas T. Tyree, as executor of Amos Lay, deceased, for a slave… Held: that there was no error in this prejudicial to him. The question now is, was there any error in this charge prejudicial to the present plaintiff in error. It is insisted, that damages should have been allowed from the time the wrong was done.

. ERROR to the Circuit Couit of Lawrence. Tried before the Hon. John E. Moore. This was an action of covenant by Hugh D. Boazman against John T. Abernathy, for breach of warranty of title to a certain tract of land, which Abernathy had conveyed to Boazman by deed dated June 8, 1843.

Tried before the Hon. Alex. McKinstRY. Assumpsit by Charles Armour against the appellants, “to recover the sum of $480 for a breach of contract, it being the sum of money agreed to be paid by said defendants to said plaintiff, for his services for one year from the 10th of May, 1852 ; said plaintiff having been discharged from the performance of his part of the contract.” The writ was issued on tlie 26th of July, 1852, and was executed on the defendants on the 3rd of…

Tried before the Hon. John D. Phelan. Assumpsit by Hatcher & Brother against Allen Gibson, to recover for advances made on cotton, which had been destroyed by fire while stored in plaintiffs’ warehouse. The defence was, that the cotton was destroyed under such circumstances as authorized the defendant to recoup the damages. — See 18 Ala. 589.

ERROR, to the Circuit Court of Autauga. Tried before the Hon. Andrew B. Moore. Detinue by the plaintiffs in error, as administrators of Nathaniel M. Dillard, deceased, against William T. Hall, for a slave named Big George, alleged to be the property of the plaintiffs’ intestate.

<p>1. In an action of slander, the defendant may show, in mitigation of damages, that he was incited and provoked to the utterance of the slanderous words, by some act or declaration of the plaintiff, contemporaneous with the speaking of the slander, or nearly concurrent therewith ; but to render such act or . declaration of the plaintiff admissible in evidence, it must be shown to have been the immediate and proximate cause or provocation of the slanderous words: it is not sufficient, to show that it occurred, and was communicated to the defendant, before the speaking of the slanderous words.</p> <p>2. When the record shows an error in the conditional admission of evidence, it must also show that the error was rectified or cured by the introduction of the proper preliminary proof, or the judgment will be reversed: the Appellate Court will not presume that the error ■vVas corrected, or deprived of its injurious effects, because the bill of exceptions does not purport to set put all the evidence.</p>

Tried before the Hon. Lyman Gibbons. Eslava obtained a judgment in ejectment against Jaques Chighizola, which was regularly entered on the minutes of the court on the 23d of April, 1844.

<p>1. Upon questions of insanity, a witness whoso acquaintance with the party] has been such as to enable him to form a correct opinion of his mental dition, may not only depose to facts conducing- to establish unsoundness of mind, but may also, in connection with those facts, give his own opinion upon the question of sanity or insanity.</p> <p>2. The practice of admitting illegal evidence, and afterwards excluding' it, is improper, because of the difficulty of eradicating from the minds of the jury the impression which the evidence may have made ; but, whore the record shows a clear and unequivocal charge, withdrawing and excluding-such evidence from the consideration of the jury, its admission is, at most, error without injury.</p> <p>3. Fraud, or undue influence in procuring one legacy, does not invalidate other legacies which are the result of the free will of the testator; but if the fraud or undue influence affects the whole will, though exercised by one legatee only, the whole will is void.</p> <p>4. An insane delusion, existing- in the testator’s mind at the time of the cxeeeution of his will, as to the principal legatee being- his son, renders the will void, if it is the offspring- of that insane delusion.</p> <p>5. Where the principal legatee, who was born in lawful wedlock, two or three years after his mother’s marriage with the testator, boars the peculiar, distinctive marks of the negro, while his mother and the testator were white persons of fair complexion, the testator’s belief that the legatee was his son, is admissible evidence for the purpose of ’showing mental delusion on this particular subject.</p>

<p>Error, to tbe Court of Probate of Chambers.</p> <p>On the final settlement of the defendants’ administration on the estate of Peyton Pinckard, deceased, the distributees objected to the allowance of several items in their accounts and vouchers ; and their objections having been overruled, they excepted to the several rulings of the court against them, and now assign for error:</p> <p>“ 1. The matters set forth in the bill of exceptions, as specified in the following items: 1st, in refusing to charge the administrators with the hire of negroes unaccounted for, to-wit: Lambert, Randall, woman Amy, girl Amy, and girl Julia, and twenty head of stock hogs unaccounted for; 2nd, in allowing vouchers presented by E. G. Richards, numbered 2, 9, 24, 26, 29, 30, 31, 32, 33, 34, 35, 43, 44; 3rd, in allowing vouchers presented by Carothers and wife, numbered 3, 8, 15, 20, 22, 25; 4th, in allowing commissions upon the aggregate amount of the estate, at the rate of five per cent.</p> <p>“ 2. The court erred in rendering the decree: 1st, in the allowance of ten dollars paid to G. W. Gwinn, attorney’s fee, for representing tho guardian ad litem, for the minor heirs; 2nd, in allowing the administrators tho sum of $1182 48, it being five per cent, on the aggregate amount of said estate.” The evidence with regard to these items, as set out in the bill of exceptions and the decree of the court, is, in substance, as follows : The decedent died on the 2nd day of February, 1850 ; at the time of his death he resided, with his family, in the town of La Fayette, and had a plantation six miles distant in the county; ho had employed an overseer for the year 1850, who was at that time on his plantation, preparing to make a crop ; on the 11th day of March, 1850, letters of administration on the estate of said decedent were granted to Martha E, Pinckard, the widow, and E. G. Richards. It was proved that the boy Lambert, who was a blacksmith, had been hired out by the decedent, for the year 1850, to a carriage-maker, for the sum of $175, on condition that he should be found to suit the business : the boy was in the hirer’s possession, on trial, at the time of the decedent’s death; but a few days afterwards ho was returned to the widow, before letters of administration were granted on the estate ; after the grant of letters of administration, the administrator, Richards, made several efforts to hire out said boy for the balance of the year, but failed ; the boy was, however, hired out several times during the year, by the day, the siims received for such hire amounting to $92 47, with which the administrators charged themselves. On this proof, the court refused to charge the administrators with said sum of $175 for the hire of said boy.</p> <p>It was shown, also, that the decedent had hired out the boy Randall, who was a blacksmith, for the year 1850, for the sum of $150, to one Cole, who was a carriage and wagon maker ; but the hiring was on condition that the boy would suit him; said Cole took the boy on trial, and was to pay for the time he had him, if the boy did not suit; three days after the decedent’s death Cole returned the boy to the widow, and gave her his note for $9 37 for the time he had kept him; the boy was then placed on the plantation, to do the smith’s work, and was kept there during the remainder of the year; it was shown that the boy was worth about $15 per month to work at his trade, but was not worth so much on the farm. The administrators charged themselves with the amount of the hire received from Cole, and the court refused to charge them with said sum of $150.</p> <p>The woman Amy was hired out by the widow, about the middle of February, for the balance of the year 1850, to one Callahan, for $45, for which sum he gave his note, payable to Richards, the administrator ; said Amy became sickly in June, and proved to be pregnant, and thereupon said contract was rescinded, and the woman returned to the administrators, who kept her the balance of the year, during which time she gave birth to a likely, child. The administrators charged themselves 'with the sum of $22 41, received from said Callahan for the hire of said woman, and the court refused to charge them with any further sum.</p> <p>The girls Amy and Julia, who were employed about the house before the decedent’s death, one as a nurse, and the other as a house girl, were kept in the family during the balance of the year; “it was further, in evidence, that five other negroes wore kept by the administratrix at the residence in town, of the following description: a cook woman, an old negro man about seventy years old who tended the garden, an old man who was unable to take care of himself, two small girls six or seven years old, and a small boy less than the girls ; it was also shown that the decedent’s family consisted of his wife and five children, the youngest being an infant. The court refused to charge the administrators with anything for the hire of Amy and Julia.</p> <p>As to the twenty head of hogs unaccounted for, the proof was, that six or seven died during the year, and six of seven more were killed and eaten by the family; that previous to the sale, the overseer hunted up all he could find, and they were sold; and that the number returned in the inventory was about twenty more than were accounted for in the return of sales. The court refused to charge the administrators with the value of those which were missing.</p> <p>Voucher No. 2 was a receipt for $12, paid by the administrator for four barrels of corn, which was purchased by him and used on the plantation ; and the proof was, that there was no other corn on the plantation at the time of the purchase.</p> <p>Voucher No. 9 was a receipt for $10 paid to one Towles, who was proved to be a superior salesman, for two days’ services in selling- the property of the estate.</p> <p>Voucher No. 24 was for $12 70, money paid out by the administrator for travelling expenses to Montgomery, to sell the cotton belonging to the estate.</p> <p>Voucher No. 26 was a receipt for $27 24, the amount of an account paid by the administrator; “ it was in evidence that the items mentioned in said voucher were purchased by the administratrix, after the decease of Pinckard, for the use of the family, in the town of 'LaFayette, and that they were such articles as were usually purchased by families in like condition.”</p> <p>Voucher No. 29 is a receipt for $30 50, the amount of a store account for several articles of clothing; but tho bill of exceptions does not state what evidence was offered in connection with it.</p> <p>Voucher No. 30 is a receipt for $11 50 paid for three barrels of corn ; and the evidence was, that one half of the corn was used on the plantation, and the other half by the family at their residence in town, and that they were out of corn at the time it was purchased.</p> <p>Voucher No. 31 is a receipt for $19 61, the amount of a store account ; and the evidence was, that the articles charged were such as are usually bought for negroes, and were applied to the use of the negroes at the residence in town and on the plantation.</p> <p>Voucher No. 32 is a receipt for $71 92, the amount of a store account, some of the articles having been bought in the decedent’s lifetime; and the evidence was, a that the articles purchased by .the administrator, after the 2nd of February, 1850, were used for the white children and negroes, at the residence in the town of La Fayette, except the thread which was made into cloth for the use of the negroes.”</p> <p>Voucher No. 33 is a receipt for $83 07, the amount of an account for groceries ; “ the evidence was, that some bacon was sent to the plantation, for the use of the negroes, and the balance was used by the administratrix and the family in the town of La Fayette.”</p> <p>Voucher No. 34 is a receipted account for $80, for repairs on a barouche; and the evidence showed, that $80 was a reasonable price for said repairs, that the barouche was not worth more than $50 without them, and that it sold for $141.</p> <p>Voucher No. 35 is a receipted account for $30 14 ; “ the evidence was, that the articles were such as are usually purchased by families in like condition to that of the deceased, and were used by the family, and in clothing the negroes on the plantation; that the amount of clothing purchased was less than is usually found necessary to clothe- the same number of negroes, and that the negroes were all well clothed when delivered to the heirs.”</p> <p>Voucher No. 39 does not appear in the bill of exceptions ; but it is stated that “ the evidence showed that Richards, the administrator, and Presley, his copartner, were attorneys, and that the amount charged was not more than a prudent administrator would have been authorized to pay for such services.”</p> <p>Voucher No. 48 is a receipted account for $125, paid to Messrs. Richards & Presley, attorneys at law, for professional services rendered to the estate in an attachment suit at law and another suit in chancery ; “ the evidence was, that the attorneys performed the services, and that said services were necessary ; that the fees charged were reasonable ; that the services of a competent attorney or solicitor in chancery could not have been procured for less; and that the amount paid was such as a prudent administrator would have been authorized to pay.”</p> <p>Voucher No. 44 is an allowance of $25 to the administrator “ for counsel fees on final settlement of said estate;” and it is stated that “there was no evidence in support of this voucher, further than the statement of the administrator, that, in consequence of the litigation by contestants, he was compelled to employ counsel, but for which it would have been unnecessary; that he had presented no such voucher on filing his account, but now asked allowance for said sum.”</p> <p>Of the vouchers presented by Oarothers and wife, (Carothers having intermarried with the widow,) the first to which exception was taken is a receipted account for $6 45; and the evidence was, “ that the articles were purchased by the administratrix after the death of Pinckard, and were used by the family of the deceased at the residence in the town of LaFayette.” In support of voucher No. 8, the same evidence was given as in support of No. 8.</p> <p>Vouchor No. 15 was a receipted account for $61 75, for furniture and repairs, while “ the evidence showed that the repairs increased the value of the property, and that all the articles were sold at the sale in their improved condition, and the administrators charged themselves with the amount said articles sold for.”</p> <p>Voucher No. 18 is a receipt for $4 00 paid for a barrel of Hour, which was bought by the administratrix, and used by the family at their town residence.</p> <p>Voucher No. 20 is a receipt for $6 00, for making mourning bonnet, dress, &e., for the widow.</p> <p>Voucher No. 22 is a receipted account for $25, for printing 200 copies of “Appeal to the United Christian World;” it was in evidence that the contract for this printing was made by Mrs. Pinckard, in the lifetime of her husband ; that the account was charged to her, and was never presented to said Pinckard in his lifetime.</p> <p>Voucher No. 25 is a receipted account for $10, for medical services rendered to Mrs. Pinckard after the death of her husband, and the evidence showed that the services were rendered.</p> <p>The court allowed all these accounts as charges against the estate, and the distributees excepted to the allowance of each item. The further sum of $10, paid to the attorney for the guardian ad litem of the minor heirs, was allowed; and the administrators were allowed, “ for commissions and their trouble in superintending, the estate,” the sum of $1182 48, being five per cent, on the amount of the estate.</p>

<p>Error to the Circuit Court of Chambers.</p> <p>Tried before the Hon. Robert Dougherty.</p> <p>Detinue by Bryant Slaughter against William H. Cunningham, for a slave named Mary. The only plea was, the general issue, with leave to give any special matter in evidence. It appears from the bill of exceptions, that the plaintiff claimed title under a deed of gift from Champion T. Stallings to him as trustee, in trust for the benefit of the said grantor’s daughter, then living and named in said deed, and such other children as he might have by his then present wife, whose maiden name was Mary L. Slaughter. This deed, dated August 7th, 1845, was executed while the grantor was a minor, and was by him acknowledged in open court, before the Hon. George W. Stone, at the Fall term, 1845, of the Circuit Court of Chambers. The plaintiff offered said deed in evidence, and proved that the slave was in said grantor’s possession at the time of its execution ; but it does not appear that any change of possession took place when said deed was executed or delivered.</p> <p>For the purpose of showing title in himself, the defendent first offered in evidence a transcript of the records of the Court of Ordinary for Jasper County, Georgia, purporting to be a copy of the last will and testament of William Traylor, the grandfather of said Champion Stallings. This will contains the following clause:' “Item, To my grandchildren, William J. Stallings and Champion T. Stallings, I give and bequeath a negro girl named Julia; also, two cows and calves, bed and furniture, bedstead, chest and spinning wheel; all of said property to remain in the family until the youngest child, Champion T. Stallings, becomes of age.” Said will purports to bear date on the 2d day of November, 1826, and to have been proved in open court by the subscribing witnesses, on the 7th day of May, 1827. The action of the Court of Ordinary upon it is as follows :</p> <p>"Georia, Jasper County :</p> <p>6ourt of 0rclinalN Term, 1827-</p> <p>Personally came into open court the subscribing witnesses to the foregoing will (naming them), who depose and say, that they saw William Traylor sign, seal, publish and declare this instrument of writing to contain his true last will and testament, and at said time was of sound, disposing mind and memory.</p> <p>Subscribed and sworn to, in open court, this 7th day of May, 1827.</p> <p>A. R. Buchanan, c. c. o.</p> <p>Green D. Brantly,</p> <p>Christopher Deadwilder,</p> <p>Paschal Traylor.</p> <p>Registered 19th of May, 1827, A. R. Buchanan, C. C. 0.”</p> <p>The authentication of the transcript is as follows .</p> <p>“ The State of Georgia, Jasper County :</p> <p>I, Davis Lane, Clerk of the Court of Ordinary of Jasper County, in the State of Georgia, do hereby certify, that the above and foregoing is a true copy and transcript of the last will and testament of William Traylor, late of said county, deceased, together with the probate and registration of the same, as fully as the same is of record and on file in my office.</p> <p>[L. 61.]</p> <p>Given under my hand and the seal of my office, which is the seal of the said Court of Ordinary, at Montecello, in the County of Jasper, in the State of Georgia, on the second day of October, 1849.</p> <p>Davis Lane, C. C. O.,</p> <p>Jasper County, Georgia.”</p> <p>“ The State of Georgia, Jasper County .</p> <p>I, James M. Williams, one of the justices of tlfe Inferior Court of the County of Jasper, in the State of Georgia, which said justices of the Inferior Court are the Court of Ordinary for said county, and have, when sitting for ordinary purposes, original jurisdiction of all matters and things touching the probate of wills, the granting of letters testamentary thereon, the granting of letters of administration on estates intestate and other estates, and of letters of guardianship of the person and property of all orphans, illegitimate children, idiots, lunatics and insane persons, within the county, and the care of their estates, do hereby certify,” &c., in the usual form as required by the act of Congress; and then follows this additional certificate: “And I do further certify, that there is no judge, chief justice, or presiding magistrate of said court; that the same is composed of five justices, each of whom have and exercise co-equal and co-ordinate powers and jurisdiction; all of which I, the said justice, do hereby certify,”' &c.</p> <p>In connection with this transcript, the defendant offered in evidence certain statute laws of Georgia, which are not set out in the bill of exceptions. The plaintiff objected to said transcript going in evidence to the jury, and in support of his objection read certain statutes of Georgia, which are also omitted from the bill of exceptions. He objected to the transcript being read, first, because there was no proof by the record, or to the court, that said Traylor was dead; secondly, because it did not appear, from anything on the face of the proceeding, that said Court of Ordinary had jurisdiction to admit said will to record; thirdly, because it did not appear there was present, when said will was probated or admitted to record, the number of justices required by law. The court overruled all these objections, and admitted the transcript; and the plaintiff excepted.</p> <p>The defendant then introduced as a witness one Jeremiah Stallings, the father of the said Champion, who testified, that said Champion was born on the 8th of March, 1826 ; that witness was present at the trade between defendant and said Champion for the negro now in suit, which took place in the last of July, or first of August, 184Y, just before said Champion left, to join the United States army in Mexico as a volunteer ; defendant had said slave in his possession at the time, and had had her since September or October, 1843 ; witness did not see the bill of sale executed, but saw a paper which they said was a bill of sale. On cross examination witness stated, “ that he held an order on defendant, which his son gave him, for whatever was coming to him, said Champion, on account of said sale, after deducting what he (Champion) owed defendant; this order was given to witness by his son, and the money was to bo paid at the termination of the suit; his son had (given ?) this order, or its proceeds, as- a present to his mother, the wife of witness, when ho was about loaving for Mexico ; witness did not know how much would be coming on it; it did. not specify any .amount, but there would be some amount coming on 'the order.” On this state of facts, plaintiff moved to exclude the evidence of the witness, on the ground of interest; but the court overruled the motion, and plaintiff excepted.</p> <p>The plaintiff then proved by said Stallings, on his further cross examination, “ that in 1843 or 1844, after said William J. Stallings had come of age, witness, at the request of said William J., made a division of the negro woman Julia and her four children between his said two sons ; that he gave to said William J. the three youngest children and $50 in money, and to Champion T. the woman Julia and her daughter Mary, who is the slave now sued for; that this division was as just and equal as he could make it; that said William J. was satisfied with it at the time, and took his negroes off home, (he being married and living by himself at the time,) and has never given them up, or brought them back for re-division, and that he has since sold them; witness was also satisfied with this division ; said Champion ivas married after this division took place, but before he came of age ; and the deed of gift under which plaintiff claims, was made after his marriage, and before he came of age.”</p> <p>The defendant then offered in evidence a deed or declaration of revocation, executed- by said Champion T. on the 23d of March, 1847, specifically revoking the said deed of gift under which the plaintiff' claimed. This deed was proved to have been executed on the day of its date. The plaintiff objected to its admission in evidence, “ because it was an ex parte transaction, of which he had no notice, and because it was illegal and irrelevant evidence to show a revocation. The court overruled the objection, and alloAYcd the deed to bo read ; to Avhich plaintiff excepted.”</p> <p>The defendant then offered in evidence, after having proved its execution by one of the subscribing witnesses, a bill of sale for the negro in suit, from said Champion to defendant, dated April 12,1847; the consideration expressed therein being $500 in hand paid. On cross examination, this witness testified, “ that said bill of sale was written by one of the defendant’s counsel, and said deed of revocation was written by defendant himself; that all the consideration which defendant had paid for said slave, within his knowledge, was the sum of $16, which defendant assumed, some time in May, 1847, to pay one W. T. Wood on account of what said Champion owed him ; that nothing was paid by defendant at the time said bill of sale was made; that nothing has been paid, within his knowledge, by defendant, since its execution, except said sum of $16. It was not shown that said Champion could read or write ; neither did defendant prove that said several instruments were read to him before he signed them.” The plaintiff objected to the admission of this deed in evidence, u as illegal, irrelevant and incompetent evidence to show a revocation of said deed of gift” ; but the court admitted it, and plaintiff excepted.</p> <p>The defendant then proved, and offered in evidence, an instrument in writing executed by William J. Stallings on the 12th of April, 1847, assigning and transferring all his interest in the slave to the defendant, for valuable consideration. “ Plaintiff objected to this instrument going in evidence, as being illegal, irrelevant and incompetent proof for any purpose, under the facts now before the court. The court overruled the objection, and plaintiff excepted. This hill oí sale was admitted by the court, on the ground that the proof tended to show, that, after the division of the property as above shown, said William J. had become dissatisfied with said division, and claimed something more, and that defendant paid him the sum of $55, the amount mentioned in said bill of sale, for his claim to the slave now sued for. This proof was also objected to by plaintiff; which objection was overruled, and plaintiff excepted. The defendant also proved by a witness, that, before the probate of the will of William Traylor, said Traylor was dead. Plaintiff objected to this evidence; but his objection was overruled, and he again excepted.”</p> <p>“ On this state of facts, the court charged the jury, that, if they believed the deed of gift uuder which plaintiff claimed was made by Champion Stallings, after his marriage, and after the birth of his first child, but before he came of age, and that the slave sued for was one of the children of the woman Julia, given to William J. and Champion T. Stallings by the will of William Traylor, then they must find for the defendant. To this charge plaintiff excepted, and asked the court to charge : 1. If Champion T. Stallings, after his marriage and the birth of his first child, and while he was in possession of the property named in the deed of gift, under the division made by his father as shown in evidence, but before he came of age, executed the said deed of gift, as shown in the evidence, and that the same was acknowledged in this court at Fall term, 1846, as shown in evidence, then said deed was valid and irrevocable. 2. That the deed of gift under which plaintiff claimed could not be revoked, except by appearing in open court, and making the act of revocation, as the acknowledgment of the execution of the deed had been, unless the defendant had shown actual notice to plaintiff of the revocation of this deed of gift in the manner shown in evidence. The court refused to give these charges, and plaintiff excepted.”</p> <p>The errors now assigned are, the several rulings of the court shown in the bill of exceptions.</p> <p>1. The transcript from the Court of Ordinary from Jasper County, Georgia, ought not to have been admitted as evidence. By' the agreement of counsel, of record, any and all statutes of Georgia, found in Prince’s Digest, were regarded as in evidence, and may now be regarded as inserted in the record. The Court of Ordinary, in Georgians a court of limited jurisdiction. — 8 Ala. 6JO; McCartney v. Calhoun, 11 ib. 118. All such courts must show, on the face of their proceedings, the facts necessary to give them jurisdiction. — Com’mrs’ Court of Talladega v. Thompson, 18 Ala. 694, and authorities there cited. That case was reversed, because the record did not “ affirmatively show the jurisdiction of the court over the road.” In the case at bar, the transcript does not show that a quorum of the justices who compose the court were present at the time the will was admitted to record. The paper is no record at all, for there is nothing to show that it was ever admitted to record in Georgia ; indeed, when we look at the statute, we must come to the conclusion that it never has been recorded: — Prince’s Digest, p. 240, § 7. There must be a majority of the justices to hold the court on the first Monday in every month ; but two or more may admit an executor to prove a will, though it cannot be admitted to record until a regular term. — lb. There is nothing in the transcript to show, that William Traylor was dead at the time this paper was made. The proof made on this trial cannot aid the transcript; this fact is indispensable to the jurisdiction of the court.</p> <p>2. Jeremiah Stallings was an incompetent witness : he was directly interested in sustaining the defendant’s title to the slave, so that the money might be paid on the order in his wife’s favor. A gift to his wife, was a gift to him.</p> <p>3. The deed of William J. Stallings to defendant was inadmissible : it was the act of a third party, and should have been excluded.</p> <p>4. The first charge given cannot be sustained : it relieves the defendant from making proof of the revocation of plaintiff’s deed ; this was indispensable. — 17 Wend. 135, 136, and cases cited in opinion. It was, also, an erroneous construction of that clause of the will of Traylor which gives the slave Julia to his grandchildren. This provision was made for the benefit of Stallings’ family ; if he was willing to waive it, and William J. was satisfied with it, and was of age at the time of the division, there is no one to complain of it, unless Champion T. does. But he does not complain, but is satisfied with the division. William J. was of age at the time, and a married man ; he has kept the slaves which he got by the division, and though he extorted something more from Cunningham, yet that cannot be to the injury of plaintiff. The case of Johnson v. Oulbreath, 19 Ala. 348, does not apply to this. Moreover, Cunningham had admitted the title of Champion T. to be good, by purchasing from him: he was estopped from saying that it was not good. — Brown v. Ayers, 14 Johns. 224 ; Duncan v. Harder, 4 ib. 210; 6 ib. 36; 7 ib. 158. But the deed under which plaintiff claims was irrevocable. It was a provision for his children, which the law will sustain. An infant may marry, and may make a marriage settlement. — Kent’s Com., 2 vol., pp. 76, 77, 243. Then why may he not provide for his offspring 1 It is a clear duty.</p> <p>1. The legal proposition asserted in the charge given by the court, is, that if the defendant, in an action of detinue, brought by a plaintiff who claims under one of two joint owners, does connect himself with the title through the other joint owner, he may avail himself of the rights which he has thus acquired, in bar of the action. This is sound law. — W light v. Bennett, 3 Barb. Sup. Ct. Rep. 451; Bell v. Hogan, 1 Stew. R. 536 ; Miller v. Eatman, 11 Ala. R. 609. The defendant not only showed a conveyance from one of the joint owners (William Jesse Stallings), but also a conveyance from the other joint owner (Champion T. Stallings), who was the grantor of the plaintiff, and who conveyed to defendant a few days after he arrived at lawful age. The only claim of plaintiff was a voluntary deed, executed by said Champion T. Stallings during his infancy, unaccompanied by the possession of the property, which remained with said Champion until his conveyance to defendant. u On this state of facts” the charge given was clearly correct, for it must be construed with reference to the facts.</p> <p>2. The defendant having a conveyance from said Champion (the grantor of plaintiff), made some few days after he arrived at lawful age, had the right to show, if he could, that the voluntary deed executed to the plaintiff by said Champion, during his minority, had been disaffirmed and revoked by him on his arrival at lawful age, or soon thereafter. For that purpose, the several instruments executed by said Champion, to-wit: the one dated 28d March, 1847, and the other dated 12th April, 1847, were competent evidence.' — 15 Ohio R. 192 ; 5 ib. 251; 7 Blackford’s R. 442 ; 11 Johns. R. 541 (top page 601) ; 14 é. 124; 10 Peters’ R. 58; 15 Wendell’s R. 631 ; 17 ib. 119.</p> <p>8. The transcript from Georgia was properly certified — the certificate showing that there is no chief justice, &c.; and the statutes of Georgia also showing the same facts set forth in the certificate.— See White v. Strother, 11 Ala. 720; Huff. v. Campbell, 1 Stew. R. 19 ; Dozier v. Joyce, 8 Porter’s R.</p> <p>4. The grant of letters, or the probate of a will, is vrima facie evidence of the death of the testator. But the death of the testator “ before the probate of the will,” was positively proved by a witness on the trial of this cause.</p> <p>5. Both the charges asked were correctly refused. The'first, if given, would have rendered an explanation necessary. — Ross v. Ross, 20 Ala. Rep. Neither of these charges was authorized by the evidence, nor by the law.</p>

<p>1. In assumpsit for a breach of warranty of the soundness of a slave, plaintiff offered in evidence the deposition of the physician who attended the slave in her last sickness, whoso testimony tended to prove that she had died of chronic pneumonia, having never recovered from an attack of acute pneumonia which she had had before the sale; in answer to the interrogatory, “ State anything else you may know which will benefit the plaintiff,” the witness answered, “As further testimony in favor of the plaintiff, I offer the two following cases, as having a bearing on the case at bar.” and proceeded to detail the history of two cases, -which he had treated, of acute pneumonia becoming chronic : Held, that the answer was not admissible evidence.</p> <p>2. Illegal evidence may be excluded, on motion, at any stage of the cause.</p>

<p>Appeal from the Circuit Court of Dallas.'</p> <p>Tried before the Hon. Nat. Cook.</p> <p>Job Self, having obtained a judgment against one Lilly, caused a garnishment to issue against Kirkland, as his debt- or. Kirkland answered as follows : “ That at the time of the service of garnishment, to-wit: the latter part of May, 1852, he would have been indebted to said Lilly in the sum of $28 or $30, for blacksmith’s work, but before the service of the garnishment one Ww. B. Hall, held a note against the said Lilly, for more than garnishee's indebtedness to said Lilly, and. proposed to sell said note to garnishee, who. consented to take it to the extent of what he might.be indebted to said Lilly on settlement, the amount of which indebtedness was not, at that time, ascertained or known ; that Hall would have delivered the note at the time of the agreement, but that the note was mislaid, and he was unable to find it, ; that upon finding it, Hall endorsed it, and dated the endorsement back to the date of the agreement; at the tíme of the agreement nothing was said about endorsement, but that the note was to be delivered to the garnishee ;. that the note remained in the hands of said Hall, until after the service of the garnishment, when the same was handed to the garnishee, and then endorsed to him, which endorsement was made, in reality, after the service of the garnishment, and was dated back to the time of the first agreement.”</p> <p>On this answer, the plaintiff asked for a judgment against said Kirkland, for the amount of his judgment against said Lilly, which was about $20. This the. court refused, and rendered a judgment discharging the garnishee. The plaintiff excepted to this ruling of the court, and he novr assigns it for error.</p>

<p>Appeal from the Circuit Court of Sumter.</p> <p>Tried before the Hon. B. W. Huntington.</p> <p>Debt on an administration bond, in the name of Preston G. N ash, Judge of the Orphans’ Court of Sumter, for the use of Warren Hooks and Cullen Hooks, against Georg eAmason and his sureties on his official bond as administrator of Thomas Amason, deceased. The declaration sets out the bond, and alleges the recovery of a judgment against said administrator by said Warren and Cullen Hooks, that a sufficiency of .assets came to his hands, which were wasted, &c. The defendants demurred to the declaration, and their demurrer being overruled they “ jointly and severally pleaded fully administered, with leave to give any special matter in evidence to which the plaintiff “ demurred in short by consent.” The demurrer was sustained; and the defendants declining to plead over, judgment final was rendered ageinst them for the amount of the judgment described in the declaration.</p> <p>The errors assigned are: 1st, the overruling of the demurrer to the declaration ; 2nd, the sustaining of the demurrer to the plea; 3rd, in rendering judgment final without the intervention of a jury.</p> <p>1. The demurrer to the declaration should have been sustained, on the ground of a misjoinder of plaintiffs. The judge of the Orphans’ Court should not have been joined, but the action should have been in the names of Cullen and Warren Hooks alone. — Clay’s Dig. 221, § 34. This question was not raised in the case of Perkins v. Moore, 16 Ala. 9. That case, therefore, is not an authority against the position now assumed.</p> <p>2. The sureties of an administrator are not liable beyond the assets which come to his hands. — Clay’s Dig. 228, § 34. The assets may be consumed in the payment of preferred debts : such as debts due for the last sickness, and funeral^expenses of the intestate (Olay’s Digest 192, § 2); debts due the State (Clay’s Dig. 245, § 20); debts due for taxes (Clay’s Dig. 566, § 52); and debts due by execution, which had acquired a lien on the assets in the lifetime of the intestate. — Collingsworth v. Horn, 4 Stew. & Port. 237 ; Caperton v. Martin, 5 Ala. 217 ; Boyd v. Dennis, 6 Ala. 55. The failure of the administrator to plead fully administered to the action in which the plaintiffs recovered their judgment against him, cannot prejudice his sureties. — Clay’s Dig. 228, § 34. But they, when sued upon the administration bond, may plead that he had fully administered. — Randolph v. Singleton, 12 Smds. & Marsh. 439. Indeed, their right to plead this plea, results from their exemption from liability beyond the assets received by the administrator. The demurrer to their plea of plena admimsfravit was, therefore, improperly sustained.</p> <p>3. The sureties being only liable for the assets which came to the hands of the administrator, it was necessary for the plaintiffs to prove, and for a jury to find, that he had received a sufiiciency to pay the plaintiffs’ debt. The court, therefore, erred in rendering a final judgment without such proof, or the verdict of a jury. — Thompson v. Searcy, 6 Port. 393; Miller v. Gee, 4 Ala. 359 ; Dean.v. Portis, 11 Ala. R. 104 ; Sims v. Nash, 1 How. Miss. R. 271; Cogan v. Duncan, 23 Miss. (Cushman, vol. 1), 274.</p> <p>2. The words 11 fully administered” cannot be construed or held as a good plea to an action of debt against an administi ator and his sureties, when the declaration sets fórth'the bond, the judgment recovered against the administrator, its non-payment, a sufficiency of assets to pay it, and the waste and conversion thereof, &c. There is no error in sustaining a demurrer to such a plea. The administrator had no right to plead any such plea ; and he and his co-defendants all joined in pleading these words u fully administered.” The court was not bound to separate. Wells v. Vance, 8 Ala. 399.</p> <p>3. The demurrer to such plea being sustained, and leave given to defendants to answer over, and they declining to answer over, although in court, and not demanding any trial by jury or any inquiry of damages by a jury, there was no error in rendering final judgment without the intervention of a jury. Such conduct on their part was a waiver of a reference of any question to a jury ; and they cannot, in the Appellate Court, spring the objection that a jury did not come, as they did not make the objection below. It was not, however, necessary to call a jury. — McGehee v. Childress, 2 Stew. 506; Clay’s Dig. 325, § 70 ; Holdipp v. Otway, 2 Saund. R. 107, note 2; 4 Am. Com. Law Cases, 108 and 109 ; 1 Littell’s R. 211.</p>

<p>Error to the Circuit Court of Greene.</p> <p>Tried before the Hon. Andrew B. Moore.</p> <p>John C. Johnson made application to the Commissioners’ Court of Greene for the establishment cf a road, and also for a ferry license ; and both of his applications were granted. The order establishing the road is as follows:</p> <p>ic It appearing to the satisfaction of the court, that thirty days’ notice of the application, as required by law, have been given, after hearing the evidence and the argument of counsel, it is considered by the court, that said application be granted; that the report of the jury of review, appointed at the last term of the court, be, and the same is hereby, ratified and confirmed; and it is ordered by the court, that the road,, as laid out and marked by said jury of review, be established as a public road: that is to say (here follows a description of the route designated, commencing on the east side of the Warrior River, and “ running in a north-west direction to the said river at the mouth of Big Creek, thence across the river, and along the highest point on the west bank of said river, to the steam mill of John C. Johnson,” &c.); upon the following conditions and stipulations, that is to say, upon the said John C. Johnson entering into bond, with good security, payable to the judge of the Probate Court and his successors in office, in the sum of $10,000, conditioned to cut out said road and put it in good repair, to furnish twenty-five good hands ten days’ each year for the next five years after said road is opened, to work on said road on the east side of the river in addition to the hands that may be appointed to said road, if necessary to keep said road in good repair, and to pay all damages which may be assessed to private individuals in consequence of the said road running over their lands.”</p> <p>The order granting the ferry license is as follows: ,.</p> <p>“ This day came the parties by their attorneys, and it appearing to the satisfaction of the court that thirty days’ notice, as required by the statute, has been regularly given, and after hearing the evidence and arguments of counsel, it is considered by the court, that John C. Johnson be, and he is hereby, authorized and permitted to keep a ferry across the Black Warrior River at the mouth of Big Creek, upon his entering into bond, with good security, in the sum of $15,000, conditioned according to law.”</p> <p>The plaintiffs in error, on their application, were made defendants to these proceedings, and obtained a certiorari, after the final orders were made, removing them into the Circuit Court; suing out but one writ, and giving but one bond. The circuit judge dismissed the certiorari, holding that the record did not show such an interest in the petitioners as entitled them to sue it out. This judgment of the court is now assigned for error.</p>

J. W. Lesesne, This bill was filed by Jonathan Mealing against David A. Steele, for an account and contribution of a certain mortgage fund alleged to be in the defendant’s hands and partly claimed by the complainant.

<p>Appeal from tbe Circuit Court of Clarke.</p> <p>Motion to abate the appeal, for causes stated in the opinion.</p>

On the final settlement of the estate of Jesse Bendall, deceased, by William H. Moore, his administrator, the legatees and distributees excepted to several rulings of the court, which they now assign… Held: that their legacies lapsed, and went to the next of kin under the statute of distribution. 1. The credit for moneys expended about the tombstone is unsustained by the will or bylaw.

Error Lo the Ciicuit Court of Madison. Tried before the Hon. Thomas A. Walker. This action (Francis J. Levert v. Benjamin T. Moore) was commenced before a justice of the peace, to recover one half of the cost of a partition fence. Judgment was rendered by the justice in favor of the plaintiff, and the defendant took the case, by appeal, to the Circuit Court.

Tried before the Hon. Robert Dougherty, Detinue by the defendants in error, infants who sue by their next friend, for the recovery of certain slaves. After the action was commenced, and before the return of the writ, ono of the plaintiffs died; whereupon his death was suggested on the record, and plaintiffs proceeded in the name of the survivors, but defendant reserved the question of their ability thus to continue the suit.

<p>1. A certiorari cannot be awarded to bring up an amended record, unless by consent, until the amendment has been made in the court below.</p> <p>2. When defendant is in court, and consents to the revival of a suit in the name of an administrator as plaintiff, and at a subsequent term continues the cause, he will be hold to have waived all objections to the order of revival.</p> <p>3. When an executor brings trespass for injuries inflicted on a slave belonging to the estate of his testator, the suit may be revived, after his removal, in the name of the testator’s administrator.</p> <p>I. In a plea in abatement, form is substance; and therefore, in trespass, a pflea in abatement defending the wrong and injury,” instead of “ the force and injury,” is bad on demurrer.</p> <p>5. If a party fails to object to an interrogatory which asks for a conclusion of law, he cannot object to the answer, if it is responsive,</p> <p>fi. In trespass for whipping- a slave, a plea averring that defendant only punished said slave reasonably and moderately, is defective on demurrer. No person has a right to chastise a slave belonging to another, without the owner’s consent, unless the authority is given to him by statute ; and if he acted under such authority, he must aver it in his plea.</p>

<p>1. Tho husband is liable, in assumpsit, for necessaries furnished to the wife (she being separated from him without fault on her part) while confined in a lunatic asylum, although the credit for them was given to tho person who, as agent for ifiaintiff, made tho contract, and paid the expenses, which were afterwards repaid to him by his principal; but if the person who made the contract was acting- for himself individually, and not as agent of the plaintiff, the latter cannot, by voluntarily paying- the debt, make the husband his debtor.</p>

Tried before the Hon. Lyman Gibbons. McArdle & WJaters brought suit, before a justice of the peace, against Albert Stein, the proprietor of the City Water Works of Mobile, for neglecting and refusing to furnish a supply of water, after a tender of the water rent. The facts of the case appear in the opinion of the court. The justice rendered judgment for the plaintiffs, and the defendant appealed to the Circuit Court, where judgment was again rendered against him.

Tried before the Hon. Geo. D. Shortridge. Trespass to try titles by William T. Minter, Hiram F. Saltmarsli and Ashley Parker, against Charles Crommelin, tenant in possession.

<p>Motion for judgment in obedience to the mandate of the Supreme Court of the United States, reversing the judgment rendered by this court at the June term, 1848, and remanding the cause.</p>

<p>Error to the Chancery Court of Tallapoosa.</p> <p>Heard before the Hon. James B. Clark.</p> <p>The bill in this caso was filed by James A. Pearson against Isaac Smith and Isaac T. Smith, the latter of whom died during the progress of the suit, and his administrators were thereupon made parties. It charges, in substance, that said Isaac Smith agreed to lend to complainant the sum of about §200, for the payment of which the latter agreed to mortgage three slaves ; that the money was advanced, but said Isaac T. Smith, who was the son of said Isaac, and the son-in-law of complainant, induced complainant, by falso representations, and by imposing upon his ignorance and confidence, to believe that the proper way of arranging the matter was, to make an absolute bill of sale of the slaves, expressing therein the consideration of §600, and to let defendants give him their notes for the difference between that sum and the amount advanced by said Isaac ; that the transaction ivas accordingly arranged in this way ; that the bill of sale and the notes wore both executed on Sunday, but, having been executed beforehand, purport to bear date on Saturday preceding. The prayer of the bill is for an account, redemption, and general relief.</p> <p>The defendants answered, admitting the execution of the hill of sale and the note, insisting that the transaction Ayas an absolute sale, and denying all fraud.</p> <p>During the progress of the cause, the defendants moved to suppress the deposition of one Basil Adams, on the ground of improper conduct in the commissioner by whom it Avas taken ; but the motion was overruled, and this constitutes one of the assignments of error. It is unnecessary, however, to notice this motion more particularly, as the decision of the court expresses no opinion upon its merits. It is also unnecessary to state the evidence in detail, as the conclusions drawn by the court are general, and present no legal question.</p> <p>On the hearing, the Chancellor held the bill of sale void for fraud, and decreed its cancellation; also, that the $400 note should be cancelled 5 that the defendants should have a lien, in tlie nature of a mortgage, for the money actually advanced to complainant on the slaves ; and that the complainant might redeem the slaves on the payment of the amount due.</p> <p>This decree is now assigned for error, together with other matters immaterial to an understanding of the points decided.</p> <p>contended that the contract was void, because executed on Sunday (9 Porter 151; 5 Ala. 467 ; 9 ib. 198 ; Chitty on Contracts, p. 423 ; 5. Blackf. Ill); that a void contract forms no cloud upon the title, and the party has his remedy at law (9 Ala. 198; 10 ib. 566); that if the contract is void, either-at common law or by statute, it cannot be enforced by either party (5 Ala. 467 ; 10 ib. 811); and that the bill of sale was not a mortgage (7 Ala. 724 ; 14 ib. 281).</p>

Error, to the Chancery Court of Benton. Heard before the Hon. E. D. Townes. This bill was filed by John B. Palmer against Joshua ft. Walker.

Heard before the Hon.'J. W. Lesesne. This bill was filed by Sophia Cole, the appellee, against John E. Turner and Hannah, his wife, Charles A. Deshon, Samuel Myers, J. C. Dubose and Henry Myers. Held: liable to such claim, but the party must pursue his rights against the legatees. — Sawyer v. Birchmore, 15 En. Ch. R. 392 ; .David v. Frowd, 7 Con. En. Ch. R. 4.

<p>Appeal from the Circuit Court of Monroe.</p> <p>Tried before the Hon. John A. Cuthbert.</p> <p>The appellant sued Slocum &, Henderson in assumpsit, the writ being issued on the 11th of March, 1852. Afterwards, on the 24th of January, 1853, he sued out an ancillary attachment in the cause, which, on motion of the defendants, was quashed, because the affidavit was made before an officer (the circuit judge) who was not authorized by law to administer the same ; and this judgment is now assigned for error.</p>

Tried before the Hon. Robert Doughertv. Hagadon, having obtained a judgment in his own name against Campbell, in the Circuit Court of Montgomery, caused a writ of fieri facias to be issued thereon.

<p>1. An endorsement of a note by ono of the makers, purporting to transfer it, by written power of attorney, in the name of the payee, must be held to be the act of the payee himself.</p> <p>2. When the sureties of a principal debtor are sued on a note, their principal is not a competent witness for them without a release.</p> <p>3. A charge which is partly based on facts of which there is no evidence, is abstract.</p>

<p>Error to the Circuit Court of Cherokee.</p> <p>Tried before the Hon. Thomas A. Walker.</p> <p>Assumpsit by Lee against Cothran for medical services rendered defendant’s wife. The facts of the case appear in the opinion.</p>

Tried before the Hon. B. W. Huntington. Assumpsit by Coleman against Maury, on an instrument in writing of which the following is a copy: u 1135. On the first of January, 1852, we, or either of us, promise to pay L. D. Phillips one hundred and thirty-five dollars, for the hire of a negro man named April, and to furnish said negro with the usual clothing. Dee. 30, 1850. (Signed) T. F. Maury. J. T. Hill.” No pleas appear in the record.

Heard before the Hon. J. W. Lesesne. A bill was filed in the Chancery Court of Lowndes for the partition of certain slaves among the children of John M. Mock, in which partition had been decreed, and a sale of the slaves ordered.

<p>1. A practical surveyor, who testifies that lie is familiar with the peculiar marks used by the United States’ surveyors in their government surveys, may give his opinion, as an expert, whether a particular line was marked by them.</p>

<p>1. The acts of Congress of 1805 and 1820, “ concerning the mode of surveying the public lands of tlio United States,” do not establish the corners of subdivisions of fractional sections, as fixed by the United States’ surveyors, in the government surveys, as the true corners ; but the corners of quarter sections are to be placed equi-distant from the section corners on the same line. (Adhering to the decision in waiters v. Commons, 2 Porter 38.)</p>

<p>ERROR to the Court of Probate of Shelby.</p> <p>The error assigned is, the decree of the Court of Probate on the final settlement of the estates of Charles Richardson and Mary Richardson ; the administrators of said Mary Richardson being plaintiffs in error. The facts of the case are detailed in the opinion.</p> <p>contended, that the decree was erroneous, because the settlement of the two estates could not be consolidated, as no execution could issue on such a decree against the sureties on either bond.</p> <p>contended, that plaintiffs in error could not be heard to object to the decree, as it was made by their consent; and that they could not raise the objection that the minors could not consent, as the latter did not assign error for themselves, nor complain of the decree.</p>

<p>ERROR, to tho Chancery Court of Cherokee.</p> <p>Heard before the Hon. David G. LigoN.</p> <p>The plaintiffs in error filed their bill in the court below against Wilson Nesbit, alleging, that one Jane Lowry, in her life-time, owned and kept a ferry at Cedar Bluff in said county, under a license granted to her by the Commissioners’ Court of said county ; that, on her death, the said ferry license and privileges were renewed and revived, by grant from said court to complainants, who were the heirs at law of said Jane Lowry ; that complainants have kept up said ferry, according to law, from the time of said grant, in 1845 ; that some time during the year 1846, defendant, having obtained leave from said court, established another ferry within fifty or one hundred yards of that owned by complainants ; that there is no town within two miles of complainants’ ferry, and that neither the public good nor convenience demanded the establishment of another ferry; that complainants are in no default with respect to their said ferry, and that this proceeding on tho part of the defendant is in derogation of their rights, greatly to the prejudice of their interests, and destructive of their chartered privileges. The prayer of the bill is for an injunction against the defendant; that his ferry be abated, and he be decreed forever from keeping up said ferry, without the leave or consent of the complainants being first had and obtained.</p> <p>On the filing of this bill the Chancellor granted the injunction. The defendant afterwards filed his answer, alleging, among other things, that the town of Cedar Bluff was duly incorporated by an act of the Legislature ; that the Commissioners’ Court of said county, therefore, have the right to determine how many and what ferries shall be established at that place, because it is an incorporated town ; that he was authorized, by regular grant of license from said court, to establish his ferry; and he sets out in his answer said act of incorporation and said order of the court granting his license.</p> <p>The complainants filed an amended bill, alleging, by way of rejoinder, that only one election had ever taken place under said act of incorporation; and claiming that said charter had therefore been forfeited by non-user, and that Cedar Bluff is not to be considered an incorporated town, and is not within the exception of the statute. The pleadings and evidence contain, much other matter, which is not deemed necessary to an understanding of the decision, and is therefore omitted.</p> <p>On the coming in of the answer the Chancellor dissolved the injunction, and on the final hearing he dismissed the bill 5 and his decree is now assigned for error.</p> <p>1. That the corporation of Cedar Bluff had been dissolved before the establishment of the defendant’s ferry, and it had not the power of resuscitating itself; that the succession of individuals composing the corporation was to be kept up, according to the charter, by elections held by managers appointed by the council; that there had long ceased to be any council, and therefore no managers could be appointed, and no elections held ; citing Angelí & Ames on Corporations, pp. 654, 655 ; Phillips v. Wilkham, 1 Paige 596.</p> <p>2. That the town, within two miles of which the Commissioners’ Court is authorized to establish ferries, must be an incorporated town.</p> <p>3. That, if Cedar Bluff was not a town, the Commissioners’ Court had no power to establish a second ferry, and this court will interpose by injunction to prevent it. — Yates v. McDaniel, 2 Stewart 211.</p> <p>1. That Cedar Bluff was an incorporated town, and therefore defendant’s ferry is within the exception of the statute. — Clay’s Digest 514 §29 ; Pamph. Acts, 1837, p. 41; ib. 1842, p. 170. Whether the charter had been forfeited, is a question which cannot be raised in a collateral issue. — 2 Kent’s Com. 305, 312, note (c), with authorities there cited ; 16 S. & R. 140 ; 1 Penn. R. 421; 2 Gill & J. 126 ; 6 Oowen 23 ; 5 Ala. 805 ; 16 ib. -372.</p> <p>2. That incorporation is not necessary to constitute a town, within the meaning of the statute. — 1 Black. Com. 116 ; Bouv. Law Die. 265 ; Clay’s Digest 272.</p> <p>3. That the power to decide upon the necessity for an additional ferry is confided to the Commissioners’ Court, from whose decision, so far as that question is concerned, there is no appeal. Jones v. Johnson, 2 Ala. 747; Cox v. Easter, 1 Porter 130.</p>

<p>ERROR to the Circuit Court of Chambers.</p> <p>Tried before the Hon. Nat. Cook.</p> <p>Action of debt by Nathaniel Baber against the plaintiffs in error on a detinue bond. The pleadings are not shown by the record ; but the bill of exceptions recites, that the defendants’ demurrer to the declaration was overruled, and they thereupon pleaded the general issue, with leave to give any special matter in evidence. On the trial, it was shown that in said action of detinue, judgment was rendered for the defendant therein by the Circuit Court, which judgment was affirmed on error by the Supreme Court; and it was admitted that the plaintiff in that suit had paid all the costs, both of the Circuit and Supreme Courts, before the commencement of this suit. The plaintiff offered to prove the reasonable value of the services rendered Mm by Ms attorneys, in defending said suit in the Circuit Court, and afterwards in the Supreme Court, and that he had paid.for such services. The defendants objected to each part of this evidence ; but their objections were overruled, and they excepted. There was no proof of malice on the part of the plaintiff in said action of detinue, in prosecuting said suit in the Circuit and Supreme Courts. The court charged the jury, in effect, that the plaintiff in this suit was entitled to recover the reasonable value of necessary counsel fees for defending said action of detinue, both in the Circuit and Supreme Courts; and to this charge the defendants excepted.</p> <p>The rulings of the court on the demurrer and evidence, as above stated, and the charge given, are now assigned for error.</p> <p>1. Where a plaintiff in an action of detinue gives bond at the commencement of Ms suit, conditioned to be void if lie fails in the suit, and pays the defendant “ all costs and damages he may sustain by the wrongful suing out of said writ,” in the absence of malice, there is no liability on such bond for the fees paid by the defendant to attorneys for defending the action of detinue, nor for fees paid by the defendant to attorneys for services rendered in the Supreme Court on the removal of said suit to that court, by writ of error sued out by the plaintiff in that suit.</p> <p>2. It is clear, that fees paid by the defendant to Ms attorneys, for their services rendered in the Supreme Court, on the removal of the cause to that court by writ of error, sued out by the plaintiff in the action of detinue, cannot be regarded as costs or damages sustained “by the wrongful suing out” of the original writ in detinue. These fees are not the “natural and proximate consequences” of the wrongful suing out of the original writ, but of a now suit commenced by the suing out of another and different writ, to-wit: a writ of error. The sureties on the bond (who are sued in this case) cannot be made liable for the issuance of the writ of error, nor for any injury resulting from it, because it is not embraced in the bond. — 'Plurlestone on Bonds, 57 to 60, top p. (9 vol, Law Library),</p> <p>3. If such fees could be recovered at all in any suit upon such bond, they cannot be recovered under the declaration in this suit, because they are not averred or set forth in the declaration as damages.— Donnell v. Jones, 13 Ala. 490; Seay v. Greenwood, 21 ib. 495.</p> <p>4. The action on such a bond is not to be governed by all the rules which govern actions on attachment bonds. For instance ; it is settled, that in an action on an attachment bond, the wrongful suing out of an attachment means, the suing it out when not a single one of the grounds on which an attachment may be sued out, in fact exists. The wrongfulness of the suing out of an attachment depends on the existence or non-existence of some one legal ground for suing out such process. How can this be applied to the suing out of a writ in detinue ? The law does not specify any ground on the existence of which a writ in detinue may be sued out. How then can we determine when such writ is wrongfully sued out ? The mere failure in the suit, on the construction of written instruments, as to the meaning of which respectable lawyers and judges might well differ, ought not to be held as proof that the writ was wrongfully sued out. But if so, the damages ought to be confined to the loss of service of the property sued for and seized under the writ, and ought not to extend to attorneys’ fees.</p> <p>5. But the bond set forth in the bill of exceptions in this case is utterly void, and furnishes no ground for a recovery. It is nudum pactum, and there was no authority in the cleric, or any other officer, to take or approve it. — Jackson v. The Governor, 15 Ala. 103. The statute authorizes the clerk to issue the writ, upon the plaintiff, his agent, or attorney, making affidavit that the property belongs to plaintiff. If no affidavit is made by tlic plaintiff, his agent, or attorney, as provided by statute, the clerk has no power or authority to take a bond from the plaintif, nor to require the sheriff to take the property. Where by statute a special authority is delegated “to a particular person, affecting the property of individuals,” it must be strictly pursued, and “appear to be so upon the face of the proceedings.” — Bex v. Croke, 1 Cowper’s Bep. 26 ; Braley v. Clarke & Peck, 22 Ala. As it does not appear that any affidavit was ever made, nor that tbe sheriff ever was required to seize the slaves, nor that the slaves ever were seized, there is nothing to uphold the bond; there is no authority in the clerk to take it, and there is no consideration to support it. No court will enforce it.</p> <p>6. Bach objection to the evidence should have been sustained. The affirmative charge is erroneous. It not only asserted, that upon the whole evidence the plaintiffs below were entitled to recover, but that they might recover the attorneys’ fees for defending in the Circuit Court, and also the attorneys’ fees for services in the Supreme Court on the writ of error. The charge asked should have been given, not only for the reasons above set forth, but also, because, in no case can attorneys’ fees be recovered, except where malice is shown and vindictive damages are recoverable.— Marshall v. Betner, T7 Ala. 832.</p> <p>1. The demurrer to the declaration being general, it was properly overruled, as the first count was unexceptionable.</p> <p>2. Attorney’s fees for defending the detinue suit must be regarded as a part of the actual damage occasioned by the suing out of the writ, and are therefore recoverable.' — Seay v. Greenwood, 21 Ala. 491. The removal of the cause, by writ of error, from the Circuit to the Supreme Court, was merely a continuation of the same cause, so far as the injury flowing from the suing out of the original writ is concerned. Barron v. Pagles, 6 Ala. 422 ; Wiswall v. Moore, 4 ib. 9.</p>

<p>1. Tim plaintiff in the execution, under which a sale is made by a constable, is not a necessary party to a motion to set aside the sale on tire ground that the constable had no authority to make it.</p>

<p>Appeal from the Circuit Court of Montgomery.</p> <p>Tried before the Hon. Robert Dougherty.</p> <p>Action on the case by Robert A Moseley against Beverly N. Wilkinson; the declaration containing two counts in case and one in trover. The first count alleges, that plaintiff hired and delivered to the defendant two slaves, “ for a certain reasonable reward to be paid to said plaintiff in that behalf,” from the first day of February, 1844, until the first day of January, 1845 ; that it thereby became and was defendant’s duty, to treat said slaves with due and proper care and attention, and, in case of sickness, with proper medical treatment and attendance ; that one of said slaves, during said term of hiring, became sick, and required medical treatment, which defendant, disregarding his said duty in that behalf, wholly failed and neglected to furnish; by means whereof, said slave died, &c. The second count alleges the contract of hiring of the slaves on the same consideration, and for the same space of time, “ to be used by said defendant in the city of Montgomery, while so hired by him, and the said Adeline to be used by him as a cook” ; u yet said defendant, in breach of his duty in that behalf, used said slave Adeline otherwise than as a cook and in said city of Montgomery, by working in the field and a plantation beyond the limits of said city of Montgomery, on” &e.; “ by means whereof, she died, and became and was wholly lost to plaintiff.” The third count is in trover.</p> <p>The defendant pleaded, that the said slave went into his possession under a contract of hiring until the first day of January, 1845, and that before that time she died; that the plaintiff afterwards, with full knowledge of her death, and of defendant’s use, treatment and disposition of her, received and collected the note for the hire during the entire term, thus ratifying defendant’s use and treatment of her during the term. He also pleaded not guilty to each count, and non assumpsit to the first and second counts.</p> <p>On the trial, plaintiff introduced a witness, by the name of Moseley, who testified, that he was present when the contract of hiring between the parties was made ; that the hiring was to continue until the first day of January, 1845 (but he afterwards stated, on cross examination, that it was to terminate at Christmas preceding); that defendant gave his notes for the hire, two for $45 each, and one for $50, due January 1, 1846 ; that said girl Adeline was hired to the defendant to cook for him, and that defendant lived in the city of Montgomery ; that after the price of hiring was agreed on, but before the delivery of the negroes to the defendant, or the execution of the notes, plaintiff told defendant, that he hired his negroes in the city of Montgomery because it was healthier than the country; that in April, 1845, defendant re-hired said Adeline to one Hughes, who lived in the county about three miles from the city of Montgomery, where she was worked in the field, and died in the latter part of July of that yean” There was evidence that the girl was neglected in her sickness ; no physician was called in, but she was treated medically by Hughes’s overseer, under whose treatment she died, and there was evidence that- this treatment was improper ; but on these points, as to neglect and treatment, the evidence was conflicting. It was also in evidence, that the place where Hughes lived was, in general, more unhealthy than the city of Montgomery, but that it was healthier than said city in the year 1845; that after plaintiff had full information that the girl Adeline was hired to Hughes, and of her death, and the circumstances of her sickness and.treatment, he disposed of the notes given for the hire in October, 1845, before the commencement of this suit, to one Noble, for a valuable consideration, without any deduction therefrom, and that defendant paid them to said Noble, when due, without any deduction therefrom ; all of which occurred before this suit was commenced.</p> <p>The court charged the jury, that, if the terms of the contract of hiring were truly stated by the witness Moseley, and if, by its terms, the hiring was to continue until Christmas, and not to the end of the year, then plaintiff could not recover upon the first and second counts of his declaration ; to which charge the plaintiff excepted.</p> <p>The court also charged, that, if tho terms of said contract were truly stated by said witness Moseley ; and if, afterwards, said defendant hired said Adeline to said Hughes, before the expiration of the term of hiring, and she was worked in the field, and died; and if plaintiff, afterwards, and before this suit was commenced, with full knowledge of all the facts and circumstances concerning her hiring to Hughes, her sickness, treatment and death, disposed of said notes given for the hire, for a valuable consideration, without any deduction theiefrom; and if defendant, afterwards, and before this suit was commenced, paid off said notes to Noble, without any deduction therefrom, then plaintiff cannot recover under the third count in his declaration ; to which charge the plaintiff excepted.</p> <p>1. The action being case, and the contract being inducement merely, a variance in the allegation and proof, as to the time when the term of hiring terminated, was immaterial. The gra- ' vamen of the action was, the defendant’s neglect of duty in not providing proper medical attendance for the girl during the term. — 1 Chitty’s Pleadings 290, marg. note 291.</p> <p>2. The plaintiff was entitled not only to the hire during the term, but also to a return of the negro at its expiration. If he was entitled to both, the fact that he received the hire for the entire term cannot deprive him of the right to recover for the conversion during the term, any more than it would deprive him of the right to a return of the slave. — Perry v. Hewlett, 5 Port. 319 ; Ricks v. .Dillahunty, 8 ib. 153.</p> <p>1. Although driving a hired horse a greater distance than is agreed, or in a different direction, is a conversion, yet receiving payment for the whole distance or route actually travelled, with a full knowledge of the facts, will bar an action of trover for this cause. — Rotch v. Hawes, 12 Pick. R. 136. And a ratification of a tortious taking, will defeat an action of trover.— Hewes v. Parkman, 20 Pick. R. 90.</p> <p>2. It is a rule, that if a necessary inducement of the plaintiff’s right, &c., even in actions for torts, relate to, and describe, and be founded on a matter of contract, it is necessary to be strictly correct in stating such contract, it being matter of description; and a variance is as fatal, as if the action had been brought on the contract. — Williamson v. Allison, 2 East 452; 1 Chitty’s PI. 885 ; Myers v. Gilbert, 18 Ala. 467 ; Felix v. The State, ib. 720 ; 1 Green. Ev. § 65 ; 1 Stark. Ev. 874 ; 1 Ghicty’s Pleadings, 228, 229, and notes. The variances are numerous and fatal: I. In the first and second counts, the allegation is that the contract of hiring was made on 1st February, 1844, and that the term of hiring was from that day until the first January, 1845. The evidence of Moseley is, that the contract was made in January, 1845, and the term of hiring until Christmas of 1845. II. The allegation is, that the contract was “ for a certain reasonable reward,” not fixing any sum. The evidence is, that one of the negroes was hired for $50, and the other for $>90, and notes given accordingly for such hire. III. The allegation in second count is, that by the terms of the contract, Adeline was to be used by defendant in the city of Montgomery, the said Adeline to be used by him as a cook. The evidence of Moseley shows that such were not the terms of the contract. These and other variances between the contract of hiring as alleged and described in the first and second counts, and the terms of the contract as proved by the witness, authorized the first charge, which relates only to those two counts.</p> <p>8. The contract, by its terms, does not deprive Wilkinson of the right to re-hire the slave to another. There is no term in the contract, either as alleged or proved, that he should not re-hire the slave. And the whole argument of plaintiff in error assumes erroneously that there is such a term in the contract.</p>

<p>Appeal from the Court of Probate of Marshall.</p>

<p>L In debt on an administration bond, to charge the sureties with the amount of a decree of the Orphans’ Court, the declaration alleged that a final settlement was had by the administrator with the Orphans’ Court, “and on said final settlement the sum of 8259 was, by the decree and judgment of ¡.aid court, assessed, and decreed, as the distributive share” of the person for whoso use the suit was brought, who was one of the distributees of the estate: Held, that the declaration was defective on demurrer, because it showed no judgment in favor of any one for the amount, and no order on the administrator to pay the money to any one.</p>

Tried before the Hon. Ezekiel Pickens. Assumpsit by Emmett Jones against Philip J. Weaver, for the use and occupation of land. The facts sufficiently appear in the opinion. The charge of the court is clearly erroneous. It assumes, as a principle of law, that all contracts made with minors, not advantageous to them, are absolutely void; whereas they are only voidable. — Oliver v. Handlet, 13 Mass.

<p>Appeal from the Circuit Court of Barbour.</p> <p>Tried before the Hon. John Gill Shorter.</p> <p>Assumpsit by Hardy Stevenson against Asher Reaves, for a breach of warranty of the soundness of a slave. On the trial, the plaintiff proved, that he had purchased the slave from the defendant, at the price of §540, as sound property, and that she was not sound at the time of sale; that she would have been worth, if sound, at the time of sale, between $500 and $600, but, in her real condition at that time, she was not worth $50. “ He also introduced evidence tending to prove, that the defendant, at the time of the sale, represented said slave to be sound, and to be deceitful in pretending to be sick frequently ; and that defendant said, all she wanted was a master to drive her, and represented her to be a breeding woman, and as a slave of good qualities and capacity for household and field work” ; that said slave was, at the time of said sale, incapable of conception or bearing children, and that defendant had owned her some six years ; that, at the time of the sale, he had been deceived by the false and fraudulent representations of the defendant, as to the qualities, condition, and soundness of said slave ; but on all these matters, which plaintiff’s evidence tended to prove, there was a conflict in the evidence.</p> <p>The court charged the jury, 11 that plaintiff’s declaration in this case was in assumpsit, and that, to entitle him to recover, he must prove that there was a warranty of soundness of said slave, and a breach of said warranty; that, if defendant made any false and fraudulent representations to plaintiff, they would be considered by the jury, with the other evidence in the cause, for the purpose of determining whether there was a warranty, a breach of warranty, and the amount of plaintiff’s damages for breach of warranty; but for that purpose only, and not as a ground of recovery.” To this charge the plaintiff excepted, and he now assigns it for error.</p> <p>A representation to the vendee that a slave is sound, made by a vendor who knows it to be false, is, in law, a warranty. —Lobdell v. Baker, 1 Metcalf 201; Cook v. Moseley, 3 Wendell 277 ; Wood v. Smith, 4 Carr. & P. 45, or 19 E. C. L. R. 267. The charge of the court asserted, iu effect, that false and fraudulent representations, alone, could not authorize a recovery ; whereas the law is, that the jury might, from such representations alone, if there was no other evidence of a warranty, find for the plaintiff in an action of assumpsit. — Wood v. Smith, supra; Hillman v. Wilcox, 30 Maine 170; Wood v. Ashe, 3 Strob. Law R. 64; Cook v. Moseley, supra; Roberts v. Morgan, 2 Cowea 438, If the vendor’s false and fraudulent representations, in this ease, did not, by mere judgment of law, amount to a warranty, the question whether they amounted to a warranty, was a question of fact, and should have been left to the jury, but was, in effect, taken away from them by the charge. Representations may amount to a warranty, although not false and fraudulent. — Ooolidge v. Bingham, 1 Metcalf 252, and cases cited su/pra.</p> <p>contended, that the charge, properly construed, amounted to this : that breach of warranty, and not fraud, was the gist of the action in this case, which was assumpsit ; that the charge, thus construed, was correct; and that contemporaneous representations are not, per se, a warranty. He cited Bradford v. Bush, 10 Ala. 386 ; Williams v. Cannon, 9 ib. 348 ; 4 i&. 700; Sedgwick on Damages, pp. 36 to 43 ; Hillman v. Wilcox, 30 Maine 171.</p>

Tried before the Hon. Ezekiel Pickens. James Dowdle, for the use of Alexander MeDade, brought an action of debt against Michael J. Summerlin, and, after service of the capias, declared against him in his own name and right; and after one continuance by the plaintiff, judgment by nil dicit was rendered against the defendant.

The questions presented in this case arose on the final settlement of the estate of Moses Wheat, deceased, whose will contained the following provisions : By the third clause, he directs certain negroes, specified by name, to be divided into six lots, and the lots to be appraised by three freeholders ; the next clause directs that the widow shall have her choice of these lots, and that the remaining five shall be divided by lot among the testator’s five living children ; the…

<p>Appeal from the Circuit Court of St. Clair.</p> <p>Tried before the Hon. Geo. D. Shortridge.</p> <p>Trespass quare clausum fregit by John Melton against Evan Watkins, to try titles to a certain tract of land, and to recover damages for its detention. The defendant pleaded not guilty, with leave to give any special matter in evidence.</p> <p>On the trial, the plaintiff introduced in evidence a deed for the land, from the defendant, conveying the same to him absolutely in fee simple, and dated the 18th of December, 1850 ; and then proved that defendant was in possession of said land at the commencement of this suit, and remained in possession thereof until the fall of the year 1851; also, the value of the rents and amount of damages during the time defendant had possession. “The defendant then offered to prove, by the subscribing witness to said deed, that, at the time said deed was executed, when defendant was about to sign the same, and immediately before he did sign the same, lie and plaintiff made a verbal contract, that defendant was to have the possession of said land to' the end of the ensuing crop year ; to the introduction of which evidence plaintiff objected, on the ground that it varied the terms of the written contract as expressed in said deed.— The court overruled the objection, and plaintiff excepted. Proof was then made, tending to show a contract that defendant was to retain the possession of the land, either during the balance of the year 1850, or during the ensuing crop year ; but no proof was made of any contract subsequent to the signing of the deed.</p> <p>“ Upon this state of facts, the court charged the jury, that said deed, from defendant to plaintiff, prima facie entitled the plaintiff to the possession of the land embraced in it, as soon as it was executed; but, if they found from the evidence that there was a parol contract, made by plaintiff and defendant, contemporaneous with the execution of the deed by the defendant, by which defendant was to retain possession of the land to make another Crop, and if defendant abandoned possession of said land at the expiration of that time, then they must find for the defendant; to which charge the plaintiff excepted.55</p> <p>The admission of the parol evidence, and the charge of the court, are now assigned for error.</p> <p>A prior ©r contemporaneous agreement, inconsistent with the legal effect of a deed or conveyance, is void. — Litchfield v. Falconer, 2 Ala. 280; West & West v. Kelly’s Ex’rs, 19 Ala. 354; Walker v. Clay & Clay, 21 Ala. 797.</p> <p>By the statute of uses, the possession of the vendor of land is transferred to the vendee, and becomes his possession, eo instanti with the execution of the deed. — Bliss v. Smith, 1 Ala. 273.</p> <p>If the terms of a deed are clear, the meaning of the parties must be ascertained by reference to it. The right to the immediate possession, was as much a term of the deed, as the title itself. — McCutchen v. McCutchen, 9 Porter 650; Lamar v. Winter, 13 Ala. 31 ; Dunn and Wife v. Bank of Mobile, 2 Ala. 152; 8 Ala. 349 ; 2 Porter 29; 4 S. &. P. 96; 2 U. S. Digest, p. 49, § k 559, 560; ib. 57, § § 750 to 753.</p> <p>The admission of the parol evidence was not error : it does not contradict the deed in any particular. The deed conveys the legal title in the land to the grantee; but the title may well be in him, while the possession and right of possession remain with the grantor. Defendant’s possession would not be inconsistent or incompatible with the plaintiff’s right of property.— 1 Black. Com. pp. 157 to 160.</p> <p>Parol evidence is admissible to show that a conveyance absolute-on its face was intended to operate only as a mortgage or security. — Hudson v. Isbell, 5S. & P. 67.</p> <p>A parol agreement, made contemporaneously with a written one, may be established by parol evidence, and maintained, if it does not form a constituent part of the written contract, and does not alter or contradict it. — Garrow v. Carpenter, 1 Porter 359 ; Mills v. Geron, 22 Ala. 669.</p>

<p>Error to the Circuit Court of Talladega.</p> <p>Tried before the Hon. Nat. Cook.</p> <p>Three judgments were rendered by a justice of the peace, in one of which Wilburn Whittington, for the use of Jesse Calhoun, was plaintiff, and Jeremiah S. Davis was defendant ; in another, Jesse Calhoun was plaintiff, and Jeremiah S. Davis and William S. Davis were defendants ; and in the third, Jesse Calhoun was plaintiff, and Jeremiah S. Davis was defendant. After the rendition of these judgments, said Jeremiah S. Davis removed the three cases to the Circuit Court by certiorari, suing out but one writ, and giving but one bond. In the Circuit Court, said Calhoun moved to dismiss the certiorari, for irregularities appearing in the record, and his motion was sustained ; and this judgment is now assigned for error.</p>

<p>X. When a transcript is filed at a term subsequent to that to which the appeal was taken, the appeal will be dismissed on motion of the appellee, and the appellant may sue out another appeal at any time before the affirmance of the judgment; but the appellee cannot have a dismissal of the appeal and an affirmance of the judgment at the same time, and on the same, transcript.</p>

<p>Appeal from the Chancery Court of Montgomery.</p> <p>Heard before the Hon. James B. Clark.</p> <p>This bill was filed by Reuben H. Brewer against the appellees, to enjoin proceedings under a judgment at law, which the Branch Bank at Montgomery recovered, in 1842, against Alexander S. Howell, Joseph D. Hopper, and M. Ashurst, on which judgment an execution was issued, and levied on a certain tract of land, which complainant purchased of said Howell in 1845. It alleged, that said Bank, prior to the issue of said execution, had accepted a note made by Robert T. Ashurst, Joseph D. Hopper, and Moses McLemore, in full payment and extinguishment of said judgment, which was thereby paid and extinguished; that complainant, being ignorant of this fact, bought in said land at the sheriff’s sale, being the highest bidder. The prayer of the bill is, that the Bank may be restrained from collecting the amount of complainant’s bid, and perpetually enjoined from all further proceedings under said judgment to subject said land to its satisfaction.</p> <p>The Chancellor dismissed the bill for want of equity, holding that the acceptance of a note from a person who was no party to the judgment, was no satisfaction of that judgment; and his decree is now assigned for error.</p>

Heard before the Hon. James B. Clark. This bill was filed by the appellant, James R. Powell, against the Central Plank Road Company.

Heard before the Hop. James R. Clark. This bill was filed by the appellants, Robert J. Ware, Arnold Seales and Moses Jones, against Thomas M. Cowles, for a specific execution of a contract and an injunction against an action at law.

<p>1. The second section of the act of 1848,“ to provide for the appointment of inspectors and physicians of the penitentiary,” confers upon the lessee and inspectors jointly the power of appointing tho physician; if the lessee fails to appoint within three days after tho happening of a vacancy, the inspectors alono may fill the place: but if tho lessee makes a nomination within such throe days, which is rejected by the inspectors, he has a reasonable time (not exceeding three days) after the rejection, within which to make another nomination; an appointment by the inspectors alone, before the expiration of three days after the rejection, is void, and confers no authority on their appointee.</p> <p>2. Where the plaintiff’s evidence is all sot out in his bill of exceptions, and shows that he is not entitled to recover, the judgment in favor of the defendant will not be reversed, on error or appeal, no matter what may have been the rulings of the court below.</p>

Tried before the Hon. George D. Shortridge. Assumpsit by Anselm B. Easley, as administrator of George W. Law, deceased, against the defendants in error, on a promissory note, which was proved to have been given for the hire of a slave.

<p>Error to the Circuit Court of Talladega.</p> <p>Tried before the Hon. Nat. Cook.</p>

Tried before the Hon. Thomas A. Walker. Assumpsit by Seaborn J. Roundtree against Grove Salmons,' for the non-performance of an agreement to the following effect: In Consideration of plaintiff’s giving a receipt in full satisfaction of a certain judgment which he held against defendant, the latter promised to pay him a certain sum in money, and to pay the costs of a claim suit then pending between plaintiff and one Turner.

Tried before the Hon. John Gill Shorter. Assumpsit by Benjamin R. Jones against Robert L. Brown, for a breach of warranty of the soundness of a horsethe declaration containing four counts, each of which averred that defendant, at the time of sale, “faljsely warranted the said horse to be sound, when in fact he was', unsound.” The only plea was non assumpsit.

Tiied before the Hon. Thomas A. Walker. Trover by Susannah Beason against Calvin Brown, for a mule which was shown to have belonged to the plaintiff’s husband at the time of his death.

Tried before the Hon. George D. Shortridge. Motion for a summary judgment.

<p>Error to tbe Circuit Court of Chambers.</p> <p>Tried before the Hon. Robert Dougherty.</p> <p>Assumpsit by Zachariah B. Pounds against Gideon R. Wheeler, on the common money counts ; pleas, non assumpsit, statute of frauds, and want of consideration. The bill of exceptions is as follows :</p> <p>“ This cause coming on for trial, the evidence conduced to show, that Pounds had traded horses with one Marshall.; that Pounds claimed $20 of Marshall for cheating him in the trade ; that Wheeler bought the horse from Pounds for $50, and it was, at the same time, agreed that Pounds should sue Marshall, in an action of damages, in a justice’s court, for $20; and that amount, or any other, if recovered, was to be paid! to Wheeler ; that if the suit failed in the justice’s court, Pounds was to take the case, by appeal, to the Circuit Court; if Pounds succeeded in that court, Wheeler was to have the recovery; and if Pounds lost the case, Wheeler was to pay all the costs. The evidence conduced to show, that both Pounds and Wheeler were in attendance on both courts, where the case against Marshall was tried; and that Marshall finally succeeded in obtaining judgment against Pounds for costs. Pounds then proved that he had paid the costs, and that Wheeler requested the clerk of the Circuit Court not to issue execution against Pounds, as he was responsible for the cost, and promised to pay them. Upon this evidence, they must find for the plaintiff; defendant excepted,” &c. The charge of the court, as shown by the bill of exceptions, is now assigned for error.</p> <p>contended, that the contract shown by the evidence was champertous, and therefore could not be enforced; citing Burt v. Place, 6 Cowen 431 ; Arden v. Patterson, 5 Johnson’s Chan. 44; Rust v. Lome, 4 Litt. 417.</p> <p>insisted that the contract was not champertous, and cited the following cases: Knight v. Sevain, 6 Green. 361; 1 U. S. Digest, p. 503, % 14 ; 3 Cowen 624; Campbell v. Jones, 4 Wend. 306 ; Stoddard v. Mix, 14 Conn. 12 ; Evans v. Bell, 6 Dana 471; Wilhite v. Roberts, 4 Dana 172; 13 Metcalf 362 ; 8 Johns. 220 ; 3 Fairf. Ill; 7 Humph. 347.</p>

<p>1. Where several co-executors qualify and give bond, a promise by the sole acting- executor, who has the possession and control of the entire estate, will not remove the bar of the statute of limitations and revive the debt against the estate.</p>

<p>Error, to the Circuit Court of Macon.</p> <p>Tried before the Hon. Jno. Gill Shorter.</p> <p>Abner McGeiiee filed a bill in chancery against Eli B. W. Spivey to foreclose a mortgage on certain slaves, and prayed a writ of ne exeat to prevent the defendant from removing with the slaves beyond the limits of the State. This writ was granted, upon complainant’s entering into bond conditioned “according to law”; and a bond was accordingly given, with the following condition : “ Now, if the said complainants shall prosecute their said bill and writ to effect, or, failing therein, shall well and truly pay, or cause to be paid, to the said Spivey, all such costs and damages as he shall sustain from the wrongful filing of said bill, or the wrongful suing out of said writ of ne exeat, then this obligation to be void,” &c. After the coming in of defendant’s answer, an order was made in the cause, “that upon defendant’s delivering to complainant the mortgaged negroes remaining in his possession, the sheriff of Russell do release and discharge said defendant from custody under said writ of ne exeat” ; and under this order the defendant was discharged from custody, upon his delivering up to the sheriff four of the mortgaged negroes. Upon the final hearing, an account of the mortgage debt was ordered, and a sale of the mortgaged slaves decreed?</p> <p>After the final decree in the chancery cause, the defendant therein brought an action at law on the bond, for damages ; and he introduced in evidence, on the trial, the papers in said chancery cause showing the facts above recited. The court charged the jury, at the request of the defendant’s counsel, that, if they believed all the evidence, the plaintiff could not recover; to which charge the plaintiff excepted, and he now assigns it for error.</p>

<p>1. A writ of error will be quashed, ou motion, when the record shows that the defendant therein was dead when the writ issued, and that he had no legal representative.</p> <p>2. Writs of error are governed, as to the practice in making parties, by the rule laid down in Sewall v. Bates, 2 Stew. 462 ; but when an appeal is taken under the Code, parties may be made in court below (§ 3069).</p>

’ George W. Hamner, as the administrator of Benjamin Williamson, Jr., obtained a decree in the Court of Probate of Wilcox, on the 13 th of December, 1850, for $3265… Held: that they would not look to notices or other papers sent up with the transcript, either to reverse or sustain a judgment, unless they wore so recited or referred to in the judgment entry as to make them part of it. 4. The new bond given is no part of the record in this case : it is not made so by statute.

<p>1. Where letters of guardianship have been granted in this State, the guar.dian and ward both residing- here at the time, the property cannot be removed to another State under the Code (§§ 2031, 2032), upon the application of another guardian appointed there, who alleges in his petition that the ward has been removed to that State.</p>

<p>Appeal from the Circuit Court of Perry.</p> <p>Tried before the Hon. Thomas A. Walker. »</p> <p>Assumpsit by Myatt & Moore against James Scott, to recover the amount of an account of $120 for goods, wares and merchandise. On the trial, the plaintiffs proved, and read in evidence to the jury, a written order of which the following is a copy :</p> <p>“ Messrs. Myatt & Moore : Please let the bearer, Mr. Orr, have any little things he may stand in need of, and I shall be good for the same. Very respectfully,</p> <p>January 8, 1850. James Scott.”</p> <p>Plaintiffs then offered testimony, tending to show tha¿ they had sold goods, wares and merchandise to said Orr, from the 19th Jannary, 1850, until the 1st of January, 1851, amounting to $105 30 ; that said goods were sold to said Orr on the faith of said written order, and that Orr was a stranger to them ; but there was no proof that plaintiffs had, at any time, given notice to defendant that they were selling, or had sold, any goods to said Orr on the faith of said order; and there was no proof showing any demand of payment for said goods, fiom said defendant, at any time, otherwise than by the bringing of this suit. The defendant then proved, that the goods so sold and delivered to said Orr were all charged to said Orr alone on plaintiffs’ books, and not to defendant; that Orr had settled said account, on the 27th February, 1851, by paying $60 in cash, and giving his note for the balance, dated February 27, 1851, and due one day after date, with interef-t from January 1, 1851. This note was produced by plaintiff, on notice from defendant, and was proved to be unpaid. Defendant also proved, that said Orr, in the fall of the year 1851, went to Texas, and had not since returned. “ There was no proof to show that Orr was in need of the articles bought, except that plaintiffs were merchants, and that Orr delivered the order to them, applied for and bought the goods, and the character and quality of the goods sold to him; the same being articles of men’s clothing, tobacco. &e.”</p> <p>On this evidence the court charged the jury, that the instrument sued on in this case was not a collateral guaranty, but was a direct obligation, from defendant to plaintiffs, to pay for the goods bought by said Orr, and that plaintiff could maintain this suit, without proof of notice of the acceptance of the order by plaintiffs,'’or of the sale of goods to said Orr on the faith thereof, or any demand of payment before suit brought; that the settlement of the account by Orr, by paying $60 in cash, and giving his note, due one day after date, for the balance, did not discharge defendant from liability, if otherwise liable, as to the balance of the account unpaid, under his obligation to plaintiffs, unless said note had been paid.</p> <p>The defendant excepted to each part of this charge, and asked the court to give the following charges :</p> <p>1. That, if they believed that plaintiffs, after they had received defendant’s said written order, sold the goods embraced in their account to said Orr, charged said Orr alone with them on their books, and then settled said account with him as shown in the evidence, these acts of plaintiffs would show that they had treated said order as a collateral undertaking, and then plaintiffs could not recover, without proof of notice to defendant that his guaranty had been accepted.</p> <p>2, That, if there vfas no evidence that plaintiffs, after receiving said order, gave notice to defendant that they accepted the same, or that they were selling goods to said Orr on the faith of it, but sold said goods to said Orr, charged them on their books to him, applied to him for settlement of the account, received $60 in cash from him, and took his note for the balance, due one day after date, then plaintiffs could not recover.</p> <p>3. That the instrument sued on is a collateral, and not a primary obligation, from defendant to plaintiffs.</p> <p>4. That the burthen of proof is on the plaintiffs, to show that said Orr stood in need of the articles sold to him by plaintiffs. This charge the court gave ; and defendant then asked the court to charge, that if the only proof in the case, on this point, was, “ that plaintiffs were merchants, and that Orr delivered the order to them, applied for and bought the goods, and the character and quality of the goods sold to him, the same being articles of men’s clothing, tobacco, &c.,” this proof would not be sufficient to entitle plaintiffs to a recovery ; which charge the court refused to give.</p> <p>The defendant excepted to these several refusals to charge as requested ; and he now assigns for error the several rulings to which he excepted, as above shown.</p> <p>1. The ■ instrument sued on is a guaranty. — Goodman v. Parish, 2 McCord 259. The case of Bates v. Starr, 6 Ala. 897, though somewhat similar, is not precisely the present; and that case, it is submitted, is not correct. The case therein cited (Chase v. Day, 17 Johns. 114) is not at all in point.</p> <p>2. But, if the instrument itself does not show that it was intended as a guaranty, the circumstances place the matter beyond doubt; and the intention of the parties, as shown by the proof, must determine the nature of the transaction. — Story on Contracts, p. 754 § 858 ; 11 U. S. Digest, p. 247 § 15. The facts that the plaintiffs below charged the goods to Orr alone, called upon him for payment, received from him a part payment in cash, and took his note for the balance; the absence of any notice of acceptance of the guaranty, or of the amount of the account contracted ; and that no demand was made before bringing suit: all these facts show conclusively, that plaintiffs below regarded Orr as primarily liable to them, and Scott as collaterally liable. — Parsons on Contracts, p. 499; Burge on Suretyship, pp. 22, 28; Babcock v. Bryant, 12 Pick. 133 ; Matthews v. Milton, 4 Yerger 576; Watson v. Wharam, 2 Term R. 80.</p> <p>■ 3. Scott’s undertaking being thus shown to be collateral, he was entitled to notice of acceptance of his guaranty; and as it was shown that no notice was given him, he is not bound. Story’s Con. § 873 ; Parsons’ Con. 501; Chitty’s Con. 207, note 1; Louisville Man. Co. v. Welch, 10How. U. S. R. 461; 22 Pick. 223, 228 ; Lawson v. Townes, 2 Ala. 373.</p> <p>4. The debt not having been paid at maturity, Scott was entitled to notice thereof, and the bringing of the suit is not sufficient notice. — Courtis v. Dennis, 7 Metcalf 518. Scott having received no notice, until after Orr had gone to Texas, he could not indemnify himself; he was discharged, therefore, because injury was done him. — Story’s Con. § 874.</p> <p>5. Orr gave his note, due one day after date, for the debt, and this novation or change of the debt discharged Scott.— Chitty on Contracts, pp. 528, 529; Story’s Con. § 870.</p> <p>6. This was not a continuing guaranty. It does not appear that Scott so intended it. The articles furnished were not only to be ££ little things,” but such little things as Orr then — at the date of the order, and not in all time to come — needed. Plaintiffs had no right, without any notice whatever to Scott, to sell Orr goods for more than a year. — Creener v. Higginson, 1 Mason 323 (336); Rogers v. Warner, 8 Johns. 119 ; White v. Reed, 15 Conn. 457 (466); Whitney v. Groot, 24 Wend. 84.</p> <p>7. The refusal of the court to charge that the facts, all of which are set out in the bill of exceptions, were not sufficient to show that Orr needed the articles furnished-him, was wrong.— The same proof would have enabled him to set up a clothing store at Scctt’s expense.</p> <p>8. Suppose, instead of giving the writing sued on, Scott had used the same words verbally to plaintiffs, in the presence or absence of Orr ; and thereupon Orr had bought the goods, which were charged to him, and for which he afterwards settled, and then left the country. Would not the case be within the statute of frauds ? and could plaintiffs recover against Scott 1 Parsons on Contracts, p. 499 ; Burge on Suretyship, p. 22 ; 12 Pick. 133 ; 4 Yerger 576; 2 Term R. 80. If this position is correct, it shows that Scott’s undertaking was collateral, and not primary. The writing does not alter the character of the transaction ; it is only evidence of it.</p> <p>1. The instrument on which .the action is founded, is not a collateral, but a direct undertaking on Scott’s part to pay for the goods which Myatt & Moore might let Orr have under it. Therefore, no notice of acceptance, or demand of payment, was necessary. — Bates v. Starr, 6 Ala. 697 ; Oliver v. Hire & Le Baron, 14 ib. 250 ; Donley v. Camp, 22 ib. 659; 40 Law Lib. 37 (29).</p> <p>2. The note given by Orr did not extinguish or affect Scott’s liability: the note was not paid; it was not taken in satisfaction or extinguishment of Scott’s liability ; there was no extension of time, and no new consideration. — Muldon v. Whitlock, 1 Cow. 290, 306.</p> <p>8. The contract was a continuing, as well as a direct undertaking, and bound Scott until he gave plaintiff’s notice to furnish no more goods on its credit. — Pitman on Principal and Surety (40 Law Lib.), 39 (29); 2 Bouv. Inst. 59 § 1394 ; Parsons on Contracts, p. 508 ; Graham v. O’Neill, 2 Hall’s Rep. 474.</p> <p>4. The last charge requested was properly refused, because the court could not pass on the sufficiency of the evidence: that was a question for the jury exclusively.</p>

<p>Error to the Circuit Court of Lauderdale.</p> <p>Tried before the Hon. Thomas A. Walker.</p> <p>Detinue for certain slaves, by the administrator of Martha Prater, deceased, against Drucilla Darby. The pleas were, the general issue and the statute of limitations. It is unnecessary to notice the other pleadings, as they have no connection with the errors assigned, which only relate to the matters shown by the bill of exceptions.</p> <p>“ The evidence showed, that on the 14th of January, 1826, in Lauderdale County, Alabama, and at the same time and place, the plaintiff’s intestate, Martha Prater, and one Richard Darby, respectively executed and delivered the following instruments :</p> <p>“ State of Alabama, Lauderdale County.)</p> <p>Received of Richard Darby five hundred and twenty-fiye dollars, in notes, for a negro woman named Rachel, about twenty-five years of age, and her three children, Eliza, about eight years of age, William, about five years of age, Thomas, about three years of age; the right and title of said negroes sold, warranted and defended forever, against myself, my heirs, executors, administrators, and all other persons whatsoever. Witness my hand and seal, January 14th, 1826. her</p> <p>Test. Joseph Phillips, Martha |xj Prater.”</p> <p>Thomas M. Phillips. mark</p> <p>“ Know all men by these presents, that I, Richard Darby, of the State of Alabama, and County of Lauderdale, am held and firmly bound, in the penal sum of one thousand and fifty dollars, well and truly to be made to Martha Prater. I bind my heirs, executors, administrators and assigns, firmly by these presents. Sealed with seal, and dated this 14th of January, 1826.</p> <p>“The condition of the above obligation is such, that if the above bound Richard Darby doth liberate and set free a certain negro woman, named Rachel, and her children, when a reasonable compensation is made to the above bound Darby for his trouble and expenses that the said Darby is at with the above named negro woman and her children, then the above obligation to be void ; otherwise, to remain in full force and virtue.</p> <p>Signed, sealed, and delivered in presence of us, the day and date above written.</p> <p>Richard Darby. [Seal.]</p> <p>Test. Joseph Phillips,</p> <p>Thos. M. Phillips.</p> <p>“ The proof showed, also, that the negroes mentioned in said bond and bill .of sale, who then, and for a long time prior thereto, had belonged to Martha Prater, were then delivered to said Richard Darby, and continued in his possession until he died in December, 1834; that the negroes sued for are the negroes named in said bond and bill of sale, and are in the possession of the defendant, who obtained them through the will of said Richard Darby,” which contains the following clause in relation to them : “And I give her (his wife Drucilla) my three negroes, viz., Lige, William and Tom, to labor for her support and the benefit of my children ; and I also give her my crop on hand; all of said several bequeaths and gifts to be held and enjoyed by her during her natural life, and after her death an equal division to be made of all that she leaves among all my children.” * * “And it is my desire that each of my negro boys, viz., Lige, William and Tom, be emancipated at the age of twenty-eight years; to be effected in that manner which my executors can justifiably and lawfully do.”</p> <p>“ There was evidence, also, tending to show that, at the time and place when and where said instruments were executed, and after their execution, a twenty dollar Bank note was handed by said Richard Darby to Martha Prater, for which she handed over, and delivered up to him, his promissory note to her for about $500. There was evidence, also, though not clear and conclusive, that the said twenty dollar note was, in fact, Mrs. Prater’s own money, and not the property of said Darby. The proof showed, that Mrs. Prater, prior to said 14th of January, 1826, and at that time, owned a number of slaves ; that she had entertained a fixed and frequently expressed purpose of emancipating them ; that, at the time said contracts above specified were made, she was on the eve of leaving this State for Illinois, with the view, and for the purpose, of effecting her design to emancipate them ; that said woman Rachel had, at that time, a husband in this county, who belonged to some other person residing here ; that Mrs. Prater left for Illinois on $aid 14th of January, 1826, and remained there until her death in 1834; that no administration was granted on her estate, in this State, until 1844; that said Richard Darby died in this county, in December, 1834. There was proof tending to show declarations, made by said Darby long subsequent to the date of said contracts, to the effect that he intended to free said negroes, and to carry out his contract with Mrs. Prater in good faith. There was, also, evidence tending to show that, according to the cotemporaneous understanding and agreement of the parties, the said Darby was to be compensated for his trouble and expense in raising and freeing said slaves by their services.”</p> <p>u The court charged tho jury as follows: If the jury believe from the proof that Martha Prater was of sound mind, and voluntarily made, executed and delivered the negroes and bill of sale read in evidence to Richard Darby, and under this sale and contract said Darby held the uninterrupted possession of said negroes, from January 14, 1826, to 1834, the year when both Martha Prater and said Darby died, then plaintiff, as administrator of Martha Prater, cannot recover in this action, notwithstanding said Darby did execute said bond at the same time, by which he obligated himself to set the negroes free according to the terms of said bond. The court stated to the jury, before and at the time this charge was given, that the same was given with reference to, and in view of, all the facts occurring at the time said instruments were executed, including the evidence in relation to the payment of money, the taking of a note, &e.; and plaintiff thereupon excepted to said charge.”</p> <p>“The plaintiff then requested the court to charge, that, if said bond and bill of sale were executed at the same time and place, they constitute but one contract; and if only §20 was paid by Darby to Mrs. Prater, and the jury believe that that sum, in fact, belonged to Mrs. Prater, and not to Darby, then the contract between the parties was illegal and void, and plaintiff is entitled to recover, unless barred by the statute of limitations ; which charge the court refused to give, and charged the jury, instead thereof, ‘that said instruments, if executed at the same time and place, did constitute but one contract; and taking the same in connection with all the evidence of facts occurring at the time, if the proof showed Darby’s continuous possession of the negroes for six years, from January 14, 1826, to 1834, then plaintiff cannot recover.’ To this charge, and to the refusal to charge as requested, plaintiff excepted.</p> <p>“ The plaintiff then requested the court to charge, that, if the jury believe from the evidence that the only money paid by said Darby to Mrs. Prater was §20, then this small amount, when contrasted with the value of the slaves transferred, and when connected with said Darby’s bond, if that bond was executed at the same time with the bill of sale, shows that the contract was not a valid bargain and sale of the negroes, but was an illegal and void contract; which charge the court refused, and plaintiff thereupon excepted.</p> <p>“ The plaintiff' then asked the court to charge, that, if the jury believe from the evidence that, at the time said bond and bill of sale were made, said Darby’s note for about $500 was taken up by §20, then paid by said Darby, and that said noto was given as the consideration of said bill of sale, and that said §20, in fact, belonged to Mrs. Prater, then the statute of limitations did not begin to run, until Darby did some act evincing his intention to hold said negroes absolutely as his own property, and discharged of any obligation to emancipate them; which charge the court refused to give, and plaintiff excepted to the refusal.</p> <p>“ The plaintiff then requested the court to charge, that, if the jury believe from the evidence that said bill of sale and said bond were executed at the same time, and were delivered by the parties respectively as part and parcel of the same contract, and Darby’s said bond was the only consideration for said bill of sale, and that Darby was to be compensated for his trouble and expenses in freeing said slaves, by their services, then said contract was void, and plaintiff must recover unless barred by the statute of limitations ; which charge the court refused, and plaintiff excepted,”</p> <p>The only error assigned is, that the court erred as shown by the bill of exceptions.</p> <p>1. Mrs. Prater’s bill of sale and Darby’s bond constitute but one agreement, and are to be construed together. — 1 Green. Ev. p. 321; 3 Phil. Ev. 1421; 8 Ala. 375; 9 ib. 24; 2 Deniol29. The two instruments together show the conditional character of the delivery; and then the parol evidence shows that the money consideration was less than that recited in the bill of sale. That the parol evidence was admissible, to show that the written' instrument was altogether void, or that it never had any binding efficacy, see Corbin v. Sistrunk, 19 Ala. 203; Dixon v. Barclay, 22 ib. 378. And that the acknowledgment in the bill of sale, as to the consideration, is considered as a receipt for money merely, and therefore open to explanation by parol proof, see 5 Ala. 224 ; 8 ib. 24 ; 12 ib. 678. The contract being thus explained by the parol proof, we must look, in ascertaining the intention of the parties, to the subject-matter of the contract, the situation of the parties, the motives that led to it, and the object to be obtained by it.— Watts, ex’r, v. Sheppard, 2 Ala. 425. Thus viewed, it is clear that it was the intention of the parties to free the negroes, and that they sought to consummate this object by the contract entered into. The sale of the negroes did not constitute a substantial contract, distinct from Darby’s obligation to manumit them; the sale and the stipulation to free them were both pro - vided for in the agreement, and had reference to each other, the one depending on the other. The bill of sale and the obligation to free the slaves constitute distinct transactions provided for by one entire contract. — 2 Stewart 196.</p> <p>2. Such a contract is void, because of illegality. The first article of the constitution, in regard to slaves, amounts to an inhibition of the owner’s right to emancipate them, except only under such regulations as the Legislature may prescribe. — 6 Porter 269, 292 ; 13 Ala., 105; 18 ib. 515. In 1826, when this contract was made, no such regulations had been prescribed; and this contract must be construed in reference to laws then existing, and to no subsequent changes. — Alston v. Coleman, 7 Ala. 795. It is not necessary that a law should contain prohibitory terms, or impose a penalty, to make a contract in violation of it void. — 6 Ala. 21; 9 ib. 198 ; 13 ib. 105 ; 1 Conn. R. 502 ; 19 Johns. 311. The contract was also against public policy, and therefore void. — 2 Stewart 175 ; 6 Ala. 20; Chitty’s Con. 519; 11 Wheat. 261, 271.</p> <p>3. Being thus void for illegality, and as contravening public policy, the plaintiff can recover everything advanced upon it. There is a locus penitentice, and right of rescission and action. Being void, the contract did not divest plaintiff’s title. — 9 Porter 154 ; 3 Ala. 37. No change of property was effected by the contract; the plaintiff might have reclaimed it, and defendant could not have been compelled to keep it and perform his agreement with reference to it. — 10 Ala. 569 ; 11 ib. 659 ; 2 Green. Ev. § 111 ; 7 Porter 251; 2 Stewart 126.</p> <p>4. The maxim, that where there is an executed illegal contract, and the parties are in pari delicto, the law will not interfere, does not apply. — 1 Ala. 450 ; 7 ib. 357- The contract here is not executed. An executed contract is where the illegal act agreed on has been fully performed — where the delictum is complete. — Broom’s Legal Maxims, top p. 210 ; 7 Porter 251; 10 Ala. 567 ; 11 ib. 535, 656; 9 Porter 151, 227, 229 ; 11 Johns. 25 ; Ghitty’s Con. 637 ; 2 Doug. R. (4th ed.) 697. The parties are not in pari delicto. — 7 Porter 256 ; 7 Johns. 433. The plaintiff committed no crime in making the contract. It is not malum in se. The maxim, therefore, does not apply. The contract is simply void on principles of public policy; and in all such cases, although the contract may be executed, as the parties do not stand technically in pari delicto, the plaintiff is entitled to recover. — 7 Johns. 433 ; Jacques v. Golightly, 2 Black. R. 1073 ; 7 Term R. 535. In Vischer v. Yates, 11 Johns. 29, C. J. Kent says: i(The courts take a distinction between contracts that are immoral and criminal, and such as are simply illegal and void. Assistance is given to the party in the latter case to recover back his money.” The same point is decided by Lord Kenyon, in almost the same language, in Munt v. Stokes, 4 Term R. 561. Where the action is in affirmance of an illegal contract, the object of which is to enforce the performance of an engagement prohibited by law, such an action can never be maintained; but where the action is in disaffirmance of the contract, and seeks to prevent the defendant from retaining the benefit derived from an unlawful act, the plaintiff can recover. — 2 Com. Contracts, p. 109, cited in 8 Cowen 24.</p> <p>5. The statute of limitations is no bar, unless Darby and his executor have been in the adverse possession of the slaves for six years since the cause of action accrued. But Darby’s possession was not adverse ; the contract of sale, being against public policy, was but a bailment: no title passed to Darby under it (see authorities cited in third paragraph, supra). He was, therefore, Mrs. Prater’s bailee, or trustee, sub modo ; and until a trustee does some act evincing his intention to annul the trust or bailment, and to convert the property to his own use, the possession is not adverse. — 8 Porter 222; 11 Ala. 1043 ; 5 ib. 90, 407; 3 Yerger 211; 4 ib. 104. That this contract, though illegal, created a bailment or trust, see 6 Ala. 345,589, 600 ; 7 Porter 256 ; 4 Kent’s Com. 306 ; 1 Dev. & Bat. Law R. 336, 479 ; 2 ib. 115. The case of Hill v. Hughes, 1 Dev. & Pat. 836, uras the gift of a slave by parol, whereas the act of 1806 declared that no gift of a slave should be good unless made in writing; and the court held, that thé gift by parol operated as a bailment simply, and that no length of possession, under Such gift, would raise a presumption of title in the bailee. The case in 1 Dev. & Bat. 479, reported again in 2 ib. 115, is a stronger case, both on the point of bailment and the statute of limitations. In these cases, the gift was illegal, as contravening an express statute; in the case at bar, the contract is void, because against public policy. In neither case, therefore, did the title pass; and defendant, being in possession by sufferance, must be considered as holding under a bailment. But, in addition to this, the proof shows that the bailment was always admitted by Darby, and was recognized in his will. No / adverse holding, in the proper sense of that term, was ever asserted or proved. Applying these principles to the charge of the court, it was clearly calculated to mislead the jury ; for it asserted, in effect, that the plaintiff could not recover, if Darby had been six years in possession, no matter what may have been the facts occurring at the time the instruments were executed under which they went into his possession.</p> <p>Darby took the slaves absolutely, and plaintiff has no right to recover. The condition to liberate the slaves is void ; yet Darby may remove them from this State and liberate them.— Atwood’s Case, 21 Ala. 590; Black & Manning v. Oliver, 1 ib. 449, where the vendee of a slave woman gave bond to marry and liberate her, and this court held that he took her unencumbered. This last case has been recognized and affirmed in principle, in Corprew v. Arthur, 15 Ala. 531, where it is ruled, “that when the parties are in equal fault, in making an illegal contract, better is the condition of him in possession,” and the law will aid neither touching the contract. — Boyd v. Barclay, 1 Ala. 34; 2 Stewart 175; Hopper, adm’r, v. Steele, 18 Ala. 831; Burt v. Place, 6 Cowen431; 8 Barb. S. C. R. 449 ; 7 Sm. & Mar. 380 ; 4 Peters 184; 11 Mass. 368; 8 Sm. & Mar. 624.</p> <p>In answer to the above position, Terrel’s counsel relies upon the decision of this court in 11 Ala. 659; but that case does not conflict with our position ; it does not, on its face, purport to overrule the cases above cited, and the principle asserted in it does not conflict with the principles of those cases. In suits respecting lands, whoever sets up title must hold it by written documents; and if they are void by statute, of course his defence fails. But this is not the case with regard to personal property; slaves, for example, are taken by delivery, and held by oral title, and need no paper title ; and the case in 11 Ala. (p. 659) is expressly put on the ground, that the deed being void, the title still remained with the grantor. Money loaned usuriously cannot be recovered back. — 5 Johns. Ch, 142; 2 Story’s Eq. 300.</p> <p>The idea that there is a locus penit entice, at which one in pari delicto can retrace his steps, and have back what he has illegally disposed of, under the assumption of a trust or bailment, is wholly untenable in this case. In the case of Rochell v. Harrison, 8 Porter 852, the owner of slaves conveyed them, in fraud of creditors, and contrary to statute ; yet it was held, that the title passed by delivery of possession, and that the vendee should hold them against his-vendor. — 11 Mass. 375 ; 8 Johns. 515 ; 18 Ala. 831.</p> <p>There is here no distinction between malum in se and malum prohibitum: all are void, being illegal, and the same rule obtains as to pari delicto.- — 1 Ala. 34; ib. 449 ; 15 ib. 553 ; 18 ib. 828 ; 6 ib. 16; Pennington & Kean v. Townsend, 7 Wend. 280 ; 20 Johns. 897 ; U. S. Bank v. Owen, 2 Peters 527 ; 7 Johns. 433; 8 Cowen 20 ; ib. 195 ; 1 Parsons on Contracts, p. 382, and note (a); Jackson v. Walker, 5 Hill (N. Y.) 27.</p> <p>No consideration was necessary from Darby, as she had a right to make a voluntary conveyance of the slaves. But the $500 paid is a sufficient consideration, and estops her and her administrator. Judge Story decided, that one dollar was enough to bind a grantor to the amount of upwards of $40,000; and that, if the one dollar had not been paid, the grantor had a right to it, and might have it by suit. — Lawrence v. MeAlmont, 2 How. (U. S.) 426 ; 7 Vesey 249 ; 10 ib. 470; 7 ib. 34.</p> <p>Darby held adversely to Mrs. Prater. All who hold by deed alsolute, hold against the vendee ; bare possession and claim of right, without deed, is adverse. — Herbert v. Hanrick, 16 Ala,. 595 ; Hinton v. Nelms, 13 ib. 222 ; Abercrombie v. Baldwin, 15 Ala. 363 ; 24 Wend. 587.</p> <p>If Mrs. Prater had the right to repudiate her deed of sale to Darby (which we do not concede), she should have done so within six years from the date of the conveyance, or she was barred by the statute of limitations. — Howell v. Hair, 15 Ala. 194 ; Powell v. Wragg & Stewart, 13 ib. 161; Sims v. Canfield, 2 ib. 561; 11 Wheat. 361; 5 Crunch 358 ; 24 Wend. 587; Humphrey v. Terrell, 1 Ala. 650 ; Brown v. Brown, 5 ib. 508; Williams v. Harvey, 3 ib. 371.</p> <p>The charge of the court below, therefore, was correct.</p>

<p>Appeal from the Circuit Court of Tuskaloosa.</p> <p>Tried before the Hon. Turner Rea vis.</p> <p>Ejectment for the west half of the north-west quarter of section seventeen, in township twenty-three, range four, east. The facts sufficiently appear in the opinion.</p>

<p>Error to the Circuit Court of Cherokee.</p> <p>Tried before the Hon. L. P. Walker.</p>

Tried before the Hon. John E. Moore. Trover for the conversion of a slave, by William T. Barry ■against John S. Napier and John Weatherford. On the trial, the plaintiff offered in. evidence the deposition of a witness, who testified, that he, as agent of plaintiff, brought the slave from Mississippi to Lawrence County, Alabama; and his testimony tended to prove, also, that the slave was sold under attachment against himself, sued out by the defendants.

<p>1, When an appeal is taken under the Code, and security for costs merely is given, it is only necessary that the surety should acknowledge himself liable for the costs of the appeal as under the old practice; but if a bond is given to supersede the judgment (§§ 3019, 3011), it is the duty of the clerk to send uj) a copy of it with the record (§ 3032). When the clerk merely certifies that the appellant “ has given bond, with A. B. security for said appeal,” and does not send up a copy of the bond, the appeal will be dismissed on motion.</p>

J. W. Lesesne- . The appellees filed this bill to enjoin a judgment at law, . recovered against them by the appellant, as the administrator of Samuel Humphries, deceased, on a note given for the purchase money of a certain tract of land, sold by said Humphries to complainant Bonham in 1846, on which note the other complainants were said Bonham’s sureties.

<p>Error to the Court of Probate of Clarke.</p> <p>The plaintiff in error was cited by the defendants to make final settlement of his administration on the estate of Linda Hamilton, -deceased. After several continuances, a decree was rendered, which is entitled “ In the matter of the estate of Linda Hamilton, deceased,” and is as follows : “ This being the day to which the final settlement of the estate of Linda Hamilton, deceased, was postponed, the cause came up for hearing; and the said administrator, having previously filed his account current for final settlement, now moves the court to be discharged, on the grounds of payment and delivery of the property and negroes in his hands belonging to said estate to the heirs;” the decree then sets out the testimony adduced on the motion, and concludes thus : “which motion being argued by counsel on both sides, and due deliberation had thereon by the court, it is considered by the court that the testimony is not sufficient to discharge the said administrator ; to which ruling of the court the administrator excepts,” &c. A motion is now made to dismiss the writ of error.</p>

<p>1. An action at law on tlieir bond does not lie against the sureties of an executor, on a decree against his administrator, rendered by the Orphans’ Court on the final settlement of his executorship, under the act of 1845.</p>

<p>1. When a note is payable on a specified day, and contains a stipulation that it shall not bear interest until another specified day after maturity, an action may be maintained on its non-payment at maturity, although the judgment will bear interest from the time of its rendition ; but the judgment must be for the principal only, without interest.</p> <p>3. And the fact that the note is secured by a mortgage containing a power of sale, in which the law day is fixed at the time when interest begins to accrue,' does not affect the mortgagee’s right to proceed to judgment on the note, if it is not paid at maturity.</p>

<p>1. The City Court of Mobile has jurisdiction of an action on the caso to recover damages for the diversion of the water of a running stream to the injury of plaintiff’s mill privileges.</p> <p>2. The use of the water of a running stream for nine years confers no right.</p> <p>3. Stein v. Burden, p. 130, re-affirmed, as to the principle asserted in the first head-note.</p> <p>4. The sustaining of a demurrer to a special plea, when the facts stated in it may be given in evidence under the general issue, is not an error for which the judgment will be reversed.</p> <p>5. In an action on the case for damages to plaintiff’s mill privileges, by the diversion of the water, it is not necessary to aver the manner or the means of the diversion.</p> <p>6. It is sufficient, in such an action, to aver injury to plaintiff’s mill privileges, without alleging the existence of a mill. The gist of the action being the invasion of the right, there need be no actual damage, when the act complained of is of such a character that its repetition or continuance might become the foundation of an adverse right.</p> <p>7. When the course of a running stream through a fractional section prevents the sub-division of the quarter sections into eighty acre tracts, under the act of Congress of April 24,1820, the sub-division of a quarter section by the United States’ surveyor into two tracts divided by the stream, is not in contravention of the act.</p> <p>8. Certain boundaries are of more importance.than quantity in designating lands. Therefore, where a patent calls for a sub-division of a fractional quarter section, described as lying north of a certain creek and containing a specified number of acres, it embraces all the land in the sub-division north of the creek, although the actual number of acres exceeds the number specified in the patent.</p> <p>9. Stein v. Burden, p. 130, re-affirmed, as to the principles stated in the third, seventh and eighth head-notes.</p> <p>10. A map, not made under the authority of the State, or of the United States, although “generally received as a correct representation of what purports to be shown or described therein,” is not admissible evidence.</p>

<p>1. When the property of the surety, by his consent, is sold under execution against his principal (the surety not being a party to the judgment), and is bought in by the principal, through an agent, and sent back to the surety’s house, the principal, although he afterwards pays the debt under which the property is sold, cannot invoke the doctrine of estoppel to defeat the surety’s title.</p> <p>2. If the transaction was intended by the principal and surety, both being insolvent at the time, to hinder and delay the creditors of the surety, the agent who became the purchaser would hold the property against both parties, and might dispose of it as he pleased ; if he did not participate in the fraud, but acted in good faith as agent of the principal, the agreement begin a fraud on the surety’s creditors, the principal’s title would prevail against the surety, and the fact that the latter afterwards acquired the possession, would not prevent a recovery by the principal, in the absence of all proof thathe acquired it under a contract with the principal; the maxim “ in pari delicto potior est conditio possidentis,’’1 does not not apply in such case.</p> <p>3. The act of the agent, in sending the property back to the surety’s house, where the principal also lived, if intended as a delivery to the principal, would vest the title in him by' the delivery, and nothing could pass by a subsequent bill of sale to his administrator in trust for his estate ; but the acceptance of such a bill of sale by the administrator would not preclude him from deducing title through his intestate under the previous sale consummated by delivery.</p>

Heard before the Hon. J. W. Lesesne. This bill was filed by Mark H. Pettway, for himself and the other secured creditors, to foreclose a deed of trust executed to him as trustee by Charles J. Gee and Sterling H. Gee, and to enjoin certain proceedings at law on the part of other creditors who were not secured.

Heard before the Hon. Anderson Crenshaw. Held: that the purchase of the eleven slaves by the executor in South Carolina was intended by him for his individual benefit, and did not enure to the benefit of the estate ; that the executor was only accountable for the nine negroes brought by him to Alabama, with their increase and the profits of their labor, and the price of the…

Tried before the Hon. Alex. McKinstry. This case was submitted to the decision of the Hon. Alex. Held: “ that the said acts of the Legislature, above referred to, are constitutional, and may be enforced ; that said water works come within the provisions of the act, and are taxable under it; and that Stein, being the owner of the land, and of the pipes and privileges attached to said land, and in possession thereof, is liable to pay…

Tried before the Hon. Robert Dougherty. This was an action of slander for words spoken imputing eo the plaintiff a want of chastity; she being an unmarried… Held: that the defendant’s circumstances cannot be given in evidence in an action of slander. Again; if the plaintiff, in such an action, claims increased damages from the fact that defendant is wealthy, that fact ought to be averred in the declaration.— Donnell v. Jones, 13 Ala. 490 ; Seay v. Greenwood, 21 ib. 495. 3.

The estate of George M. Mallory having been declared insolvent, the appellants, Robert W. Smith & Co., filed as a claim against his estate certain notes which they held against the firm of George M. Mallory & Co., which was composed of said Mallory and one John Meldrum.

<p>1. The statute authorizing the summoning of a jury to try any question of fact touching- the validity of a will (Olay’s Digest, 304, § 35), vests in the court trying the issue a more enlarged discretion than is ordinarily exercised by courts in trying issues in civil causes.</p> <p>2. The statute requiring the subscribing wituesses to a will to sign it in the presence of the testator, applies only to devises, and has no application to bequests ; and therefore a will containing an attestation clause, hut not attested, though - void as to the realty, may he good as to the personalty, if it was really intended by the testator to operate as his will irrespective of the attestation.</p> <p>3. Where a will of real and personal property, though-containing an attestation clause, is not attested, the presumption is, that it is incomplete and is not the will of the testator; hut this presumption is slight, and may be rebutted by slight circumstances; as if tho testator was prevented from finishing it by the act of God, or if lie intended it to operate in its present form.</p> <p>4. The validity of a will of realty and personalty was contested on three grounds, viz., because it was not signed by the subscribing witnesses in the presence of the testator; because tho testator, at the time of its execution, was of unsound mind and memory; and because it was procured by fraud and undue influence on the part of the testator’s wife ; the jury having returned a verdict finding it invalid generally, the court, on motion of the contestant, inquired on what ground their verdict was predicated, to which one of then- number replied, “ principally on the ground that it was not signed by the witnesses in the presence of the testator and tho court then ordered them to retire and find another verdict: Held,, that the contestant could not have a mandamus for judgment on this first verdict.</p> <p>5. Where a verdict, finding the will invalid, is rejected by the court on the motion of the contestant himself, he cannot afterwards have a mandamus for judgment on it.</p> <p>6. Where the jury return a general verdict finding tho will invalid, but slate to the court that their verdict is not predicated on any one of the grounds of contest, and that- they cannot agree upon any one of them, their verdict may be rejected.</p>

<p>Error to the Circuit Court of Talladega.</p> <p>Tried before the Hon. Robert Dougherty.</p> <p>Detinue for a slave, by Thomas K. Beckj as executor of Ephraim Pharr, deceased, against James T. Reese. The plaintiff proved a purchase of the slave by his testator, in 1845, at a sale by the trustee in a deed of trust executed by one Bushrod W. Bell; also, the defendant’s possession at the commencement of the suit, a demand and refusal, and the value of the slave and his hire.</p> <p>The defendant then offered in evidence the deposition of one Isaac M. Thomas, taken on interrogatories, which the court, on motion of the plaintiff, suppressed for supposed irregularities; but as these irregularities are particularly noticed in the opinion, it is not necessary to repeat them here. The defendant derived title under a purchase by his wife, then Mrs. Bell, from said Ephraim Pharr ; but the evidence was conflicting as to the terms of this contract. The evidence in relation to it, so far as material to an understanding of the case, is stated in the opinion. The first charge of the court was not excepted to. The second charge, in effect, was as follows: If the jury believed that the contract between Pharr and Mrs. Bell was, that she should keep the boy during the year 1846, and at the end of that year might elect to keep him on paying $700, or to return him and pay $100 for his hire; and that she expressed her willingness to plaintiff, some time in November of that year, to take the boy at $700, and plaintiff then repudiated the contract; yet this would not dispense with the necessity of making a tender of the $700 at the end of the year 1846; and if the tender was not made, then plaintiff was entitled to recover. To this charge the defendant excepted, and asked the court to charge, that if the jury believed the contract to have been as .stated in the last charge, then Mrs. Bell had the right to make her election at any time during the year 1846 ; and if she did make her election at any time before the expiration of the year, and offered to pay the $700, then they must find for the defendant. The court refused this charge, and the defendant excepted.</p> <p>The rulings of the court in suppressing the deposition of Thomas, in the second charge given, and in the refusal to charge as requested, are now assigned for error.</p> <p>1. The affidavit, by an attorney, made upon information and belief, is sufficient. — Brahan. v. Debrill, 1 S. 14. A deposition must be certified under the signature of the commissioner, but the certificate must be under his seal. — Dozier v. Joyce, 8 Porter 303; Hill v. Gayle, 1 Ala. 275. The omission to describe the defendant, Beck, as executor, was not sufficient ground for suppressing the deposition. — Jordan v. Hazzard, 10 Ala. 221; and see, also, Evans v. Norris, 1 Ala. 511. The notice is good. — 1 Ala. 632 ; 11 Ala. 732 ; see Acts 1849-50, p. 73, §§ 6,1.</p> <p>2- The first principle, in the construction of contracts, is, to carry out, if possible, the intention of the parties, not in á. literal, but in a just and reasonable sense. On the constructiori of this contract, and its legal effect, see Barker v. Jones, 8 New Hampshire, 413 ; McLeod v. Powe & Smith, 12 Ala. 9; Lamb v. Lathrop, 13 Wendell 95 ; Sewallv. Henry, 9 Ala. 24. See also Chitty on Contracts, p. 11, et seq. to p. 14. Mrs. Bell was excused from an offer to perform by the act of Beck repudiating the contract. — Chitty on Contracts 689. Apd a party may subject himself to liability before the time of performance arrives.— Chitty on Contracts 781, 742 ; 20 Pick. Ill $ 25 i5. 455 ; 5 Ohio 514.</p> <p>The case in 7 Barb, does not apply. It is founded on a statute which does not warrant the court in saying what is a substantial compliance with the provisions of it. The court say, it must be strictly construed. That is directly contrary to the intention of the Legislature iri passing ours. This and the other cases cited by defendant’s counsel in support of the decision of the court below, suppressing the deposition of Isaac M. Thomas, do not apply.</p> <p>The law does not require a party to do a useless act: there - fore, when Mrs. Bell offered to take the boy, and comply with the contract, and Beck refused it, and said she should not have the slave, it was unnecessary for her to make the tender in form at the end of the year.</p> <p>1. Under the third section of the act of 12th February, 1850 (Pamphlet Acts of 1849-50, p. 75), it is essential that the com-'" missioner shall, under his hand and seal, below the testimony, or on some convenient place in the papers, certify to the clerk of the proper court, or to the justice, that the evidence of the witness was taken down under oath, and subscribed by him, in his presence, at a time and place appointed by him,” &c, &c. This act repealed all former acts contravening its provisions, and designedly provides the mode of procedure under commissions to take testimony. If the mode thus prescribed is not substantially pursued, the deposition must be suppressed on motion ; for no court in this State can dispense with any requisition of a statute. If the “ seal” of a commissioner can be dispensed with, any other part of the certificate can be dispensed with; and upon such reasoning, the certificate itself can be dispensed withDepositions are in derogation of the common law,- and owe their origin and authority to statutes. The statute must be observed; no excuse can supply the non-observance of the statute. — Caldwell v. Mayor, &c., 9 Paige’s Rep.-572; Fleming 'v. Hollenback, 7 Barb. Sup. C. Rep. 274 -, Shed v. Leslie, 22 Vermont 498 ; Whitney v. Sears, 16 ib. 591; Sanford v. Octalomi, 23 Ala.</p> <p>The correctness of this position is rendered the more certain, by a reference to the statutes in relation to depositions which were of force prior to the act of 1850, and the construction put upon those statutes by the Supreme Court. — Dozier v- Joyce, 8 Porter 303 ; Hill v. Gayle & Bower, 1 Ala. 275. In this case last cited (1 Ala. 275), the court assign the reason why the iC seal” of the commissioner was not essential under the laws then of force, as follows . Neither of our statutes pre- , scribing the manner in which depositions are to be taken, requires that the commissioners should attest the genuineness of the examination by certificate under their hand and seals.” Ten years after this decision had been made, the Legislature passed the act of 1850, and did thereby expressly require the seal of the commissioner “ below the testimony, or oh some convenient place in the paper.” This legislation annuls the former law, and the decisions thereon founded.</p> <p>There are other grounds which justified the suppression of the deposition of Thomas; for instance, the pretended notice is a mere nullity. It is not a notice. It is not addressed or directed to either of the parties to this suit, nor to the attorneys of either of the parties, but “ to Messrs. Rice & Morgan,” not as attorneys of any party, but simply to “ Rice & Morgan.” This pretended notice was not served on Rice and Morgan, but on “ John T. Morgan, Esq.” The pretended notice aserts that “ the above int’ries are on file in the “ proper office,” and that a commission will issue according to law.” — Rex v. Croke, 1 Cowper’s Rep. 26, 30; Shehan v. Hampton, 8 Ala. 942. The commission does not appear to have been issued in this case, but in a case “ wherein Thomas K. Beck is plaintiff, and James T. Reese is defendant.” There is a material difference between Beck and Beck “ executor of the last will and testament of Ephraim Pharr, deceased, who sues as such executor.” — Chapman, Governor &c., v. Spence et al., 22 Ala. There was no proof offered that Beck, in his individual right; did not have a suit against Reese in the same court:</p> <p>The commission derives its efficacy from the law. By law; all the power conferred on the commissioner named in the commission, ceases on the return day of the commission. After the return day, he ceases to be commissioner, and cannot add a seal or do any other act as commissioner. — Herndon v. Givens, 16 Ala. 261; Ulmer v. Austin, 9 Porter 157. After the return day of the commission, and after the commission and the acts of the commissioner under it have been actually returned to and filed in the court to which it was returnable, the court has no power to re-commit the commission or any thing done under it to the commissioner. And if it were to do so, its action would be void, and every thing done under such re-commitmént would be void. — Snell v. Bangor Navigation Co., 30 Maine 337 ; Wentworth v. Keazer, 20 ib. 336.</p> <p>A contract between E. Pharr and Mrs. Bell, “ that she was to keep the boy (a slave) during the year 1846, and at the end of that year had her choice to keep the negro on paying $700, or to return him and pay $100 for the hire,” does not divest Pharr of his title to the negro; nor will such agreement, in connexion with the expression by Mrs. Bell in November, 1846, to Pharr’s executor, of “ her willingness to take the boy at $700,” operate a divestiture of title to the negro out of Pharr or his executor; especially if there is no payment of the $700, and no tender of it, and no expression of readiness or ability to pay it, and no offer to pay it, but merely an expression of “ her willingness to take the boy at $700.” — Eskridge v. Glover, 5 Stew. & Por. 264, and cases there cited; Cook v. Oxley, 3 T. R. 654; Grant v. King, 14 Vermont 367 ; Buckmaster v. Smith, 22 ib. 203; Smith v. Foster, 18 ib. 182 ; Bigelow v. Huntley, 8 ib. 151; Falls v. Gaither, 9 Porter 605 ; Chitty on Contracts (edition of 1851), 344, note 1.</p> <p>The utmost effect which can legally be assigned to such an agreement is, that it constituted a bailment or hiring of the slave to Mrs. Bell for the year 1846, at the price of $100, with the privilege to her, “ at the end of the year” (the expiration of the term of hiring), of relieving herself from returning the slave and paying the hire, u on paying $700.” — Grant v. King, 14 Vermont 869. Or, it is ££ an agreement to sell the property on condition of receiving payment within a stipulated time. — George v. Stubbs, 26 Maine 247. Such an agreement is not a sale. She was not bound by it to pay for the slave. She was not a purchaser, but had the mere option to become a purchaser t£ at the end of that year.” ££ While the agreement Continued the option to her, the law gave it to Pharr or his representative. — Eskridge v. Glover, 5 Stew. & Por. 274, 275. ££ The important but nice distinction is,” that this contract was not a sale of the slave££ with only a reservation of the right to one to renounce it; but the agreement was, that it should become a sale, if, at the end of that year,” Mrs. Bell should choose to buy the slave and t£ pay $700” for him. — Eskridge v. Glover, 5 S. & P. 275, supra; 9 Porter 605 George v. Stubbs, 26 Maine 247. This was not a conditional sale, since it was to be optional with Mrs. Bell, “ at the end” of the year 1846, whether any sale should take place. — Grant v. King, 14 Vermont 370. In these respects, as well as in others, this case is distinguishable from the case of McLeod v. Powe & Smith, 12 Ala. 9, so much relied on by plaintiff in error.</p> <p>Without designating all the differences between the case last cited and this, it may not be improper to notice, that in that case there was a valid agreement in writing that Gordon should become the purchaser of Smith’s slaves at the marshal’s sale; that Gordon did purchase the slaves under the agreement; that it was also agreed, that on the payment of $4,832 by Smith to Gordon, on the 1st January, 1844, the said slaves should revest in Smith ; that, “ on the 26th December, 1843, with a view to carryout said contract,” said sum of $4,832 was duly tendered. This was a conditional sale — a sale to Smith on condition that he paid the $4,832 by the 1st January, 1844. The judgment in the action of detinue concerning said slaves, was never brought to the Supreme Court, but remained of force when McLeod v. Powe & Smith was tried, and was part of the evidence in that case. In the present case, no tender has ever been made, and there is no sale, conditional or otherwise.</p> <p>The actual delivery of goods does not, of itself, transfer an actual ownership in them ; to perfect the title of the vendee, there must be a consummation of the contract of sale. The fact that Mrs. Bell had the slave, does not prove that the title was changed by the delivery to her. It is plain, the title was not thereby changed. — Marston v. Baldwin, 17 Mass. 606, 611. The expression by Mrs. Bell“ of her willingness to take the hoy at $700,” made to the executor of Pharr, in November, 1846, is not, and was not, a tender of $700. No money was produced. There was no offer to pay any money. A-tender of $700, is a very different thing from an expression by Mrs. Bell of her willingness to take the hoy at $700. — 9 Porter 615 ; 14 Yiner’s Abr. 19 § 4 ; Flower’s Case, which shows that a mere offer will not change the title. If the executor “ repudiated the contract” in November, 1846, that did not relieve Mrs. Bell from tendering the $700. Whether she made any tender was referred to the jury by the second charge; and in finding for the executor under the second charge, the jury found she made no tender. That finding ought to settle that question of fact, at least in the appellate court.</p> <p>But the charge, as given, is justified upon another clear ground : “Where the estate is to arise upon a condition precedent (as, “ on paying $700”), it cannot vest- till that condition is performed ; and this has been so strongly adhered to, that even where the condition had become impossible, no estate or interest grew thereupon.” — Vanhoone v. Dorrance, 2 Dallas 317 ; 2 Bacon’s Abr. 292 ; Edwards v. Lewis, 18 Ala. 495. The payment of the $700 was a condition precedent, in this casé, and was never performed.- — Falls v. Gaither, 9 Porter 617. The agreement between Pharr and Mrs. Bell, operated as a mere license to Mrs. Bell to buy at the end of the year on paying $700. Such license was revoked by Pharr’s death, or, at all events, by the executor.</p> <p>The charge asked was properly refused- — See authorities above cited. There is one objection fatal to the charge asked. If it had been given as asked, and without any explanation, and the jury believed the state of facts on which it was based, the jury would have been bound thereby to “ find for defendant,” although the jury might have believed there had been “ a rescission of the contract” — of which rescisssion there was evidence. Inasmuch as there was evidence tending to prove a rescission of the contract, and inasmuch as such rescission (if it existed) was fatal to the defendant below, any charge asked by him might well be refused, which excluded the question of the rescission of the contract from the consideration of the jury, and authorized the jury to “ find for defendant,” although they might believe there had been a rescission: If the charge as asked had been given,- an explanation thereof would have been necessdry, and such an explanation as would have amounted to a remodeling of that charge. — Ross v. Ross, 20 Ala. 105 ; 19 Ala. 322:</p>

<p>1. Where conditional words are used In a will, which, if unexplained, would prevent the vesting of a legacy, such words will not be allowed to defeat the intention of the testator, when apparent from other portions of the will, that the legacy should vest immediately ; and where an absolute property is bequeathed to one at a certain period in futuro, and the whole of the intermediate interest is given to another, the legatee of the absolute property takes a vested interest.</p> <p>2. Where a testator bequeathed certain slaves to his daughter, “during her natural life, with this proviso: that if her son Thomas, now an infant, should line to he twenty-one years of age,” then he gave three of said negroes to his said grandson, “to him and to his heirs forever,” it was held, that the legacy to the testator’s grandson was contingent, and did not vest until he arrived at the age of twenty-one years.</p> <p>3. An executor’s assent to the legacy of a life interest in slaves, operate as an assent on his part to the legacy of a vested remainder in them ; but if the remainder is contingent, and the interest in the .property during the interval between the termination of the life estate and the happening of the contingency on which the remainder is to vest, is not disposed of by the will, it must be administered accordingly by the executor, and his assent to the legacy for life will have no effect whatever on the remainder.</p>

Tried before the Hon. Nat. Cook. Joseph Noles, the plaintiff in error, was indicted in the Circuit Coürt of Dallas, at its spring telm, 1853, for the murder of George Sharp. The indictment was in the form prescribed by the Code, on page 698.

<p>1. A final decree ol' tlie Chancery Court, which has been fully executed, cannot be opened on the petition of one who, by his own showing, had no interest whatever in the subject-matter of the controversy until long after it was terminated.</p> <p>2. When a party propounds his interest by petition to the court, praying to be made a parly to a suit that he may prosecute an appeal or writ of error from the final decree, the order making him a party would relate back to the time when the decree was rendered ; and therefore, if his petition shows that an appeal or writ of error from the decree is already barred by the statute of limitations, it will not bo granted. This rule applies equally to Chancery Courts and Courts of Probate.</p> <p>Ü. The limitation proscribed to writs of error by the act of 1818 (Clays Digest 300 § 17), applies to final decrees in chancery, as well as to final judgments at law.</p>

<p>Appeal from the Chancery Court at Cahaba, to which the cause had been transferred from the Mobile Chancery Court.</p> <p>Heard before the Hon. James B. Clark.</p> <p>(No briefs have come to the Reporter’s hands.)</p>

Error, to the Circuit Court of Shelby. The record does not show the name of the presiding judge. This was an action of slander, by Clowney against Ware.

Heard before the Hon. J. W. Lesesne. ' Stainton and wife, and the former as administrator of two infant brothers of his wife who died in 1833, exhibited their bill in chancery, setting forth that the defendant, Rumbly, married Christiana Manning in 1827 ; that shortly after the marriage the father of Mrs. Rumbly gave to her-, for her own separate use, two negro girl slaves, and afterwards made to her a deed for them, which read, u to her and her heirs.” This deed was…

In the matter of the final settlement of the estate of Tom, a free negro, by Garland F. Gardner, his administrator. The following facts are shown by the record: The intestate belonged to Baxter Smith, who died in Dallas County, in 1828, leaving a last will and testament, in which he directed his executors to emancipate said Tom and a woman named Charity, with whom said Tom had cohabited, and- by whom he had two children, Malinda and Sarah, the appellants.