Volume 25 — Alabama Reports

<p>1. A slave’s confessions of guilt to his master, when elicited or influenced by the fear of punishment or the hope of some benefit to be gained by making them, is not admissible evidence against him 5 and his subsequent repetition of them before the examining- magistrate, if made in the presence of his master, is equally inadmissible, unless it is clearly shown that he was free from the least apprehension of punishment from his master as a consequence of his recantation.</p> <p>2. Therefore, in this case, the slave’s confessions to his master wore excluded, because the latter had said to him, “ Boy, these denials only make the matter worse” ; and the repetition of them before the examining- magistrate, in the presence of the master, was also ruled inadmissible, the justice having failed to caution him as to their effect.</p>

<p>1. When there is the least conflict, in a material point, between the evidence adduced by the State and that offered by the defendant, a charge, based upon the State’s evidence, and indicating that the jury may look to it alone in passing on the guilt or innocence of the defendant, is improper; but if there is no conflict in the testimony, and the conclusion drawn by the court is the only one warranted by the facts and the law arising upon them, such a charge may be given.</p> <p>2. If one see another about to perpetrate a felony, he may use such force to prevent.it as may be necessary ; and if, while so engaged, he is intentionally killed, it will be murder in the slayer.</p> <p>3. As to reasonable apprehension of imminent danger to life or limb, when relied on as a defence.</p>

Tried before tbe Hon. ANDRew B. Moose. The appellant, John C- Powell, was indicted at the Eall term, 1850, of the Circuit Court of Coosa, for grand larceny ; to which he pleaded, not guilty, and insanity.

Tried before the Hon. Alex. B. Clitheeall. Richard M. Eskridg-e, the appellant, was indicted at the Spring term, 1854, of the Circuit Court of Sumter, for disabling a leg of a slave named. Maria, alleged to be “ the property of Mrs. Eskridge,” by shooting her in the leg with a shot gun, and was convicted. The principal evidence against him consisted of his own confessions, as testified to by the physicians who amputated the limb of the slave.

From the Circuit Court of Montgomery. Tried before the Hon. Robert Dougherty. Daniel Stare was indicted for trading with “ a slave, the property of Benajah S. Bibb, whose name is to the jury unknown.” He pleaded not guilty to the indictment, but was found guilty by the verdict of the jury, and fined ¡¿200.

Tried before tbe Hon. Nat., OooK, The indictment was as follows : “ The State oh Alabama, ) Circuit Court, Wilcox County,. f Spring Term, 1853. ■ “Tbe grand jury, charge, that, 'before .the finding of ibis indictment, Tbomas H. Thompson, Robert Thompson, Jolin W. Creagb, Tbomas Trawick, Hobson Thompson, Tbomas Burps, and Calvin Nobles, assaulted and beat Bowen Bennett, against the peace and dignity of tbe State of Alabama.” On tbe trial, tbe death of Thomas Trawick, one of…

Tried before the Hon. JOHN Gill Shoeter. The appellant was indicted, at the Fall term, 1853, of the Circuit Court, for trading with a slave, the property of one Benjamin F. Randolph, without the consent of the master, owner or overseer.

<p>1. An indictment (under § 1059 of the Code), which charges that the defendant, before the finding of the indictment, “ sold spirituous liquor, without a license, and contrary to law,” is sufficient; and under it the defendant may be convicted, on proof, of selling to a person of known intemperate habits.</p> <p>2. To authorize a witness to testify to the general character of a person in respect to his habits, he should first state that he is ¡acquainted with that person’s general character in the particular to which he deposes; but if his testimony shows that fact, whether brought out on preliminary examination or examination in chief, it will be sufficient.</p> <p>8. whether the defendant had knowledge of the intemperate habits of the person to whom he sold the liquor, should be left to the decision of the jury upon the evidence ; and a charge which assumes that such knowledge was brought home to him, is erroneous.</p>

<p>Appeal from the Circuit Court of Covington.</p> <p>Tried before the Hon. Nat. Cooe.</p>

Tried before the Hon. Alex. B. Clitheball. The indictment in tliis case was as follows : “ The State oe Alabama, ) In the Circuit Court, Pickens County. Í Spring Term, 1854. “The grand jury of said county charge, that, before the finding of this indictment, Stephen D. Swallow, D. W. Hun-ley, James T. Burdine, James A. Sanders, and John H. Thomas, played at a game with cards, or dice, or at some device or substitute therefor, at a tavern, inn, storehouse for retailing…

Tried before the Hon. Alex. McKinstry. The defendant was indicted for retailing spirituous liquors to a free person of color.

<p>1. An indictment under the act of February 12, 1850 (Pamph. Acts 1849 — 60, p. 49), which charges that the defendant sold spirituous liquor to a slave, “ without the consent of the master, overseer, or agent of sueh slave," is fatally defective.</p>

<p>1. The judge of the City Court of Mobile has power to take a bond conditioned that the principal obligor “ make his personal appearance before the City Court, now in session, instanter, and from day to day during the term, and from term to term thereafter, to answer the State of Alabama on a charge of an assault to murder.”</p>

Tried before the Hon. Alex. B. Olitiierall. The indictment in this case was found at the Fall term, 1853, of the Circuit Court of Sumter, and charged “ that, before the finding of this indictment, William Earbee and Ira J. Underwood did abuse, whip, or beat John N. Strait, upon an accusation that he had been guilty of beating Harry Earbee.” The bill of exceptions states, that “ the State proved, facts tending to show that the defendant and William Earbee met the prosecutor,…

<p>1. Maotiamos from the Supreme Court does not lie to compel the Circuit Court to vacate an order suppressing- a deposition.</p>

Mandamus is the proper remedy to compel all inferior tribunals to perform the duties required of them by law, and to execute that justice to which a party may be entitled.— Strong, Petitioner, 29 Pick. 484 ; Carpenter v. Bristol, 21 ib. 258 ; 6 Bacon’s Abr. 434, 435, 436, 438 ; Marbury v. Madison, 1 Craach 131; Bur v. Judges, 3 H. & M. 1; Street v. Gallitin Co. Commissioners, Brees. 25 ; Ex parte Bemson, 23 Ala. 17 ; and is liberally interposed for the benefit of the subject…

<p>1. When an administrator refuses to plead the statute of limitations, the dis-tributees of the estate cannot, on. motion, be made parties to the cause for the purpose of putting in that plea.</p>

APPLICATION by Benj. W. Walker for the writ of prohibition, mandamus, or other remedial process, to vacate certain orders of the Chancery Court of Macon, the Hon. James B. Clark presiding,… Held: that the representative mentioned in the statute, was the original, and not the ancillary representative, who was entitled to sue in the courts of this State. The case of Kane v. Paul, 14 Peters 33, runs on all fours with that of our own court, and with the case under consideration.

The appellant filed a claim against the estate of Daniel McDougald, deceased, which had been previously declared insolvent; and Ms claim… Held: that “ to render an appeal effectual for any purpose, there must be an undertaking that the appellant-will pay all cost,” &c. ; and it was added, that “a court of review ought not to encourage appeals.” Without now deciding that we will allow affidavits to controvert the certificate of the judge that a bond to supersede, or security…

Tried before the Hon. John D. Phelan, Assumpsit for the use and occupation of a certain house and lot in the town of Marion during the year 1846.

Heard before the Hon. James B. Claes. This bill was filed by Catherine Y. Phillips, suing by her next friend, against her husband, John W. Bridges & Co. and Martin Stetson.

Tried before tbe Hon. Alex. MoKinstry. Assumpsit by T. & G-. Forbes against Daniel Walker, on a guaranty, for a copy of wbicb see the opinion of tbe court.— The declaration, in addition to tbe common money counts, contained four special counts.

Heard before the Hon. J. W. Lesesne. The original bill in this case was filed by Eandal Cheek to enforce his vendor’s lien for the unpaid purchase money of certain lots in the town of Ilayneville, which he purchased at sheriff’s sale under execution at law against Charles Wal-drum, and afterwards sold to Susannah Waldrum, the wife of said Charles.

Tried before the Hon. G-eo. D. Siiortridge. Trial op the right op property in certain slaves, which had been levied on under execution in favor of the Branch Bank at Decatur against Benjamin Snodgrass, and claimed by William Snodgrass, the plaintiff in error, who derived title under an absolute bill of sale from said Benjamin.

Tried before the Hon. Geo. D. Shortridge. This was an action of debt on a penal bond, which Gewin, the plaintiff, who was sheriff of Lawrence county, had taken from Pilas M. McGehee, his deputy, conditioned for the faithful discharge of his duties as such deputy.

Heard before the Hon. Jambs B. Clark. This bill was filed by Carolina L. E. Love, against her husband (Addison C. Love) and John G. Graham ; its object .was, the reformation of the ante-nuptial agreement entered into between complainant and her said husband, and an injunction against further proceedings at law by the said Graham under an attachment which he had sued out against said A. C. Love, and which had been levied on certain slaves claimed by complainant as her…

Samuel W. Weems, as executor of his wife Penelope, having been cited by the appellants to settle his administration on her estate, the… Held: that the hire of a slave for a year is an absolute sale ofhis services for that time, as much so as a sale for life, except in the first case the law implies certain duties on the part of the person who hires, which it does not do in the latter ; and it cannot be doubted that, if the guardian had sold the slave, and taken a note, due…

Tried before the Hon. Thomas A. Walker. Trover by Mary Martin, as executrix of Shadrach Martin, deceased, against Levi Martin, for the conversion of a slave named Jason. The record does not show what the pleas were ; but the defence seems to have been rested upon the ground, that the defendant, if guilty at all, had stolen the slave, and had never been prosecuted for the felony.

<p>Appeal from the Chancery Court of Tuskaloosa.</p> <p>HEARD before the Hon. E. D. TowNes.</p> <p>This bill was filed by Mrs. Elvira Thomas, suing by her next friend, to protect her separate estate in certain slaves from the judgment creditors of her father, from whom she derived them. The facts are all set out at length in the opinion of the court.</p> <p>1. The common law does not allow a married woman to possess personal property independently of her husband; yet a trust for her sole benefit may be created, which a court of equity will see strictly performed. — Clancy’s Rights of Mar. W., b. 3, c. 1, p. 251.</p> <p>2. An estate to the separate use of a married woman can only be created by deed or will, or, at the least, by an instrument in writing. The exceptions to this rule (if it be proper to call them exceptions) are where the subject-matter of the estate is of a paraphernal character. — lb., pp. 92, 262.</p> <p>3. Although equity so qualifies the common law, as to permit a feme covert to take and enjoy personal property to her separate use, when given to her with that intent, yet such intent must be very distinctly expressed, before the court will permit it to prevail against the rights of the husband. The instrument by which such gift is made must clearly speak the donor's intention. — Clancy 262 ; Palmer v. Trevor, 1 Yera. 261-2 ; Tyrrel v. Hope, 2 Atk. 558 ; Pollard et al. v. Merrill & Eximer, 15 Ala. 169, 113 ; Hale v. Stone, 14 il. 803, 810 ; Mitchell v. Gates, at this term. An estate in remainder in personal property cannot be created by parol. — 2 Kent Com. 351, and note b.</p> <p>4. If such an estate may be created without deed, will, or writing, the evidence in this case is insufficient for that purpose. The witness does not pretend to remember the words employed by the donor, but says, she has used his language as near as she could recollect it.</p> <p>5. The case made by the proof is not the case stated in the bill; and for this reason the decree cannot be sustained.— Clements v. Kellogg, 1 Ala. 331, 333; Lyon v. Goodwin, 4 Por. 291.</p> <p>6. The case made by the proof does not show a separate estate in the wife. The witness says, “ the gift was made to Mrs. Thomas, free from the control of her said husband.” This, if it was in fact the language actually employed by the donor, would not create a separate estate in the donee. Mr. Bright, in his work on Husband and Wife, says, the words “ to be under her sole control ” do not create a separate estate. — 'Yol. 2, 208.</p> <p>1. The pretended gift set up in the bill is void by the statute of frauds ; the possession was not really and bona fide with the pretended donee ; it was in fact with the husband. Clay’s Dig. 255, § 2.</p> <p>The only question which arises upon the record is, whether a separate estate in personal property can be created by a verbal gift. There seems to be no authority bearing directly upon the point, either in this country or in England, and the question must be solved upon principle alone. All contracts or agreements, at common law, were divided into specialties and parol agreements, the latter including all contracts not under seal. No instrument in writing was required for the sale of personal property. It is not necessary to the validity of the sale of a negro now, that there should be any written conveyance. If, then, tlie title to a slave may be conveyed by verbal gift, why may it not be given to a particular person, and for a special purpose ? The only reason why such gifts are usually in writing, is, that the evidence thereof is the more readily perpetuated. For if, as in Tyrrill v. Hope, 2 Atk. 558, a separate estate was established in the wife, upon a mere memorandum in writing not under seal, why may it not be by verbal gift, if it does not invade the provision of the statute of frauds ? But the statute of frauds can have no influence upon this case, as the property was dedicated to the daughter by her father long anterior to the existence of any debt to complainant’s intestate. The only difficulty, then, is in the proof, and not in the principle involved. Before the passage of the statute of frauds, a trust could be created by parol declaration, if the property could be so conveyed. — Hill on Trustees 56 ; Kirkpatrick v. Davidson, 2 Kelly 291, and authorities there cited. In McQueen on Hus. and Wife, 2d part (66 Law Lib.), 292, the question whether a separate estate can be created by parol testimony is touched upon, and the author expresses it as his opinion that it may be done.</p>

<p>Appeal from tbe Circuit Court of Benton.</p> <p>Tried before tbe Hon. ANDREW B. MooRE.</p> <p>This was an action of covenant by Clougb L. Sbelton against R. D. 'Howland’s administrators, to recover damages for tbe breach of an express warranty of title to a slave, which was sold by said Rowland to Sbelton, and was after-wards recovered from tbe latter, in an action of detinue, brought by one Rutledge, who claimed and recovered under title paramount to that of Rowland; of which action Rowland had notice. The court charged the jury, “that the measure of damages in this case was not the value of the slave at the' time of plaintiff’s purchase from defendants’ intestate, superadded to the costs of the suit of Rutledge against the plaintiff, and interest thereon”; but “ that plaintiff was entitled to recover the value of the negro as assessed in that suit, and the following costs of suit, viz., the attorney’s tax-fee and the county tax, and nothing more.” To this charge the defendants excepted, and they now assign it for error.</p> <p>The measure of damages in cases of this character, is the purchase money, interest thereon, and the costs of the suit by which the vendee was evicted, as the following authorities show.: Staats v. Ten Eyck’s Ex’rs, 3 Caine’s Cas. Ill; Baldwin v. Munn, 2 Wend. 399 ; Pitcher v. Livingston, 4 Johns. 1; Smith v. Strong, 14 Pick. 128; Nichols v. Walters, 8 Mass. 243 ; Williams v. Bocinan, 2 Dev. 483. The same rule applies in the sale of personal property. — Sheppard v. Hampton, 3 Wheat. 200 ; Shannon v. Comstock, 1 Brock. 212 ; Badgett v. Broughton, 1 Kelly 591; Milton v. Rowland, 11 Ala. 132 ; Marshall v. Wood, 16 ib. 806 ; 5 Wend. 535 ; 1 Johns. 511; Willis v. Dudley, 10 Ala. 933 ; Warner v. Hatfield, 4 Blackf. 394. The judgment in the suit of Rutledge against Shelton, was no evidence of the damages in this case; that was an action of detinue, in which the courts encourage high valuations of property, for the purpose of securing its return in specie, which is the object of that suit; such assessments are no criterion of real value.</p> <p>The cases in which the value of the thing sold at the time of sale, with interest thereon, has been held the criterion of damages, in actions of this kind, are for breach of warranty of soundness, and not of title. — Willis v. Dudley, 10 Ala. 935; Milton v. Eowland, 11 ib. 132. The general rule of law is, that when the law gives a remedy, it shall be commensurate with the injury sustained. — Willis v. Dudley, supra. It is manifest that the injury sustained in this case is the value of the negro .at the time of the recovery by title paramount to that of the vendor. The warranty was, that the title was good ; it was broken ; shall the person who relied upon its bonafides and validity suffer wrong by so doing, or shall the warrantor be compelled to make good his warranty by indemnifying his vendee against whatever loss he may have sustained? The value at the time of sale, with interest, is oftentimes not a compensation or indemnity, and the vendee is made to suffer, not for laches or wrong on his part, but for relying on his vendor's statements. That the measure of damages, upon a breach of warranty of title, is the value at the time of eviction, see Gore v. Brazier, 3 Mass. 523; Cas-well v. Wendell, 4 ib. 108 ; Bigelow v. Jones, ib. 523 ; Chapel v. Bull, 17 ib. 213 ; Sweet v. Patrick, 3 Pair. 1; Sterling v. Peet, 14 Conn. 245 ; Park v. Bates, 12 Yerm. 381; Bissell v. Erwin, 13 La. 143 ; Mills v. Bell, 3 Call's R.</p>

Tried before the Hon. Andrew B. Moore. Trespass yi et armis by Dennis Crosby, an infant suing by his nest friend, against James A. Hawthorn, to recover damages for an assault and battery and illegal imprisonment.

<p>1. The act of 1852 (Pamph. Acts 1851-2, p. 45) “ to regulate and define the liability of railroad companies,” does not conflict with the act of 1850 (Pamph. Acts 1849-50, p. 171) granting the right of way through Jackson county to the Nashville and Chattanooga Railroad Company.</p> <p>2. To entitle the plaintiff to a recovery against a railroad company under the act of 1852, it is only necessary for him to prove property in the stock or cattle killed, their value, and that they were killed by the defendant’s cars or locomotives.</p> <p>8. Whether any degree of care and diligence on the part of the defendant will excuse it, quiere ?</p> <p>4. That the cattle were killed while roaming on lands which did not belong to their owner, is no defence to the action, as the doctrine of the common law in relation to damage feasant has never been adopted in this State.</p>

<p>1. A suit commenced by a corporation, without first giving security for the costs, as required by section 2398 of the Code, will be dismissed on motion.</p> <p>2. A proceeding' by notice and motion, on the part of a railroad company, against a delinquent stockholder, is a suit within the meaning of section 2398 of the Code; and security for the cost3 must be given when the notice is placed in the hands of the sheriff to be served.</p>

<p>1. As to the distinction between propositions, the acceptance of which amounts to a valid contract, and proposals to render a gratuitous kindness, which are not designed to create legal obligations on the parties.</p> <p>2. A complaint (under the Code) alleged the contract sued on to be “in substance as follows: That in consideration that plaintiffs would then and there buy out the store-house and lot, situate in the town of C., then occupied by M. L. E. & Go. as a store-house, and the stock of dry goods then and there owned by them, he (the defendant) would assist them, by endorsing their paper, and advancing them money, to enable them to carry on the mercantile business advantageously or, as alleged in another count, “ would endorse for them in Charleston, and, Unnecessary, advance money to them, to enable them to carry on the mercantile business”: Meld, on demurrer being interposed, that the contract was too indefmitoancT*uncertain to support an action.</p>

<p>1. On final settlement of an administrator’s accounts, ho was held entitled to a credit for the entire amount paid by him on a note, (which was shown to have been executed for the benefit of one K., by the intestate, said K. and himself, as joint makers,) on proof of the intestate’s repeated declarations “ that there were matters between him and K., in relation to the note, of which R. (the administrator) knew nothing, and which made it his (intestate’s) duty to protect It,” although there was also evidence of his own declarations that he had signed the note as co-surety with his intestate, and considered himself equally bound for its payment.</p> <p>2. An administrator in chief, on settlement of his accounts with the succeeding administrator de bonis non, cannot be charged with a sum of money which is shown to have been deposited by the intestate, a short time before his death, in the hands of a bailee for safe-keeping, and to have been paid over by the bailee to the-administrator de bonis non himself.</p>

<p>Appeal from the Circuit Court of Mobile.</p> <p>Tried before the Hon, C. W. Rapieb.</p> <p>This action was commenced by summons and complaint under the Code. The complaint contains two counts, which are as follows: .“Plaintiff claims of defendant $225, due on an order drawn by John A. Cuthbert on the 27tli day of June, 1846, to-wit: ‘ Alex. McKinstry, Esq. — Please pay to John Gliddon $225 out of the proceeds of a judgment from the County Court of Mobile, in your favor, against A. C. & A. Hollinger, when collected ; this sum to be credited on your acceptance of an order in my favor for money to be collected on said judgment ” ; which said order was accepted by said McKinstry, payable to John Gliddon; and though money sufficient to satisfy said order has been received by defendant, he has failed to pay said order, and it is still due and unpaid. And plaintiff further claims of defendant $225, for that he, said defendant, did accept a certain order, drawn by John A. Cuthberfc on the 27111 day of June, 1846, as follows :” (setting it out as before); “ which said order, so drawn as aforesaid upon said defendant, he accepted, on the day last aforesaid, to-wit: on the day of the date of said order, and then and there undertook and promised to use due diligence to collect the judgment named, and when so collected to pay the amount of said order to said plaintiff; and plaintiff avers, that by reasonable diligence the defendant could have collected said money upon said judgment, but has failed and omitted to do so from mere neglect, and has failed to pay said plaintiff said sum of money specified in said order, accepted as aforesaid, which still remains unpaid.”</p> <p>The defendant demurred to the declaration, “ for a mis-joinder, the first count being ex contractu, and the second ex delicto; and to the second count separately, 1st, because the instrument set out in it does not impose on the defendant the duty of using due diligence to collect, and plaintiff shows no other facts whereby the omission complained of could give him his action ” ; and, 2d, because the facts pleaded in it do not create a breach of the promise declared on, which authorized the complaint made in the second count.” The court overruled the demurrer to the whole declaration, and sustained that to the second count separately; and the defendant then pleaded, that the judgment mentioned in the order was obtained on a note which came to defendant’s hands under a deed of trust made by one Thomas A, Carr, subject first to the payment of an unascertained sum due to one C. A, Gilbert, the balance to be applied to the protection of one Drury Thompson, who was an accommodation endorser for said Carr for $100, and the residue only after discharging these prior rights going to said Carr; that Carr drew an order on defendant, payable from such residue to said Cuthbert, on which right of Cuthbert's the order sued on was drawn ; that the whole amount collected on said judgment has not been sufficient to pay said Gilbert and Thompson, and so defendant says ho does not owe the plaintiff.</p> <p>The plaintiff demurred to this plea, but his demurrer was overruled ; and having refused to reply, the court rendered judgment in favor of the defendant. The sustaining of the demurrer to the second count in the declaration, is now assigned for error.</p>

<p>Erroe to the Chancery Court of Lauderdale.</p> <p>Heard before the Hon. E. D. TowNES.</p> <p>The original bill in this case was filed by Hervey Dilla-hunty and John Chisholm ; and the former having died, the suit was revived in the name of Pugh Houston, his executor, who is the plaintiff in ■ error. The object of the bill was, to establish Dillahunty’s right to share with the Bank in the security afforded by a certain deed of trust, and to enjoin a judgment at law which the Bank had obtained against Chisholm as Dillahunty’s surety on certain notes hereinafter particularly described. The facts of the case, as disclosed by the pleadings and proofs, may be briefly stated as follows :</p> <p>The said deed, conveying real and personal property, was executed by William W. Garrard, on the 14th of September, 1836, to Thomas U. Lassiter as trustee, to secure Taylor, Mason & Co. against their accommodation acceptance of two bills of exchange, one of which, drawn by Garrard, was endorsed by Henry Garrard and John Arnett, and negotiated and held by the Branch Bank at Huntsville ; and the other, to which said Garrard was no party, but which was drawn by William Arnett for his accommodation, and endorsed by Henry Garrard and said Hervey Dillahunty, was negotiated and held by the Branch Bank at Decatur. The debt to the Decatur Bank was afterwards extended under the act of 1831; the bill delivered up to the drawer, William Arnett, and can-celled ; new notes executed by him, payable in three annual installments, with said William W. Garrard and Hervey Dilla-hunty as sureties; and another deed thereupon executed by said Garrard to John H. Arnett, as trustee, to secure the payment of these notes. The bill charges, that the complainant Dillahunty did not intend, by taking this second deed, to waive any rights which he might have under the first deed, and that he took the second deed only because it was doubtful whether the first had been legally acknowledged and registered.</p> <p>The first installment on the new notes was paid by said Garrard, and the balance of them by said Dillahunty. The trustee in the first deed afterwards sold the property conveyed by it, pursuant to its terms ; at which sale Dillahunty became a purchaser of a portion of it, and gave his notes, with said Chisholm as surety, for the purchase money. The trustee assigned these notes to the Branch Bank at Huntsville, and judgment was afterwards obtained on them by the Bank against said Chisholm, wdiich is the judgment sought to be enjoined. The complainant, Dillahunty, insisted that, if the first deed was held inoperative on account of its imperfect acknowledgment and registration, then he was entitled to the entire proceeds of the sale of the property ; and that, if that deed was held valid, then he should be subrogated to the rights of the Branch Bank at Decatur under it. The chancellor dismissed the bill, and his decree is now assigned for error.</p> <p>X. The principal creditor is, in equity, entitled to the full benefit of any security given by the debtor to his surety for his indemnity. — 7 Ala. 362-7; 8 ib. 866-72 ; 4 Comstock 313; 1 White’s Eq. Cas. 120, and cases cited ; 1 Johns. 0.119,129; 5 Barb. S. 0. E. 398-405. A security given by the principal debtor to one surety enures to the common benefit of all the sureties. — 1 White’s Eq. Cas. 99; 5 Barb. S. 0. E. 405, and authorities supra. Hence, the first deed of trust, although made nominally for the benefit of Mason, Taylor & Co., the acceptors of the bill, enured to the benefit of the Decatur Bank, which discounted the bill, and which was the real creditor ; and all of the sureties were entitled to the benefit of the deed. The doctrine of subrogation is the creature of equity, and is administered so as to secure essential justice, without regard to form. As between the principal and surety, payment by the surety is in the nature of a purchase by the surety from the creditor. It operates, in equity, an assignment of the debt and of all legal proceedings on it, and gives a right in equity to call for an assignment of all securities; and in favor of the surety, the debt and all its obligations and incidents are considered as still subsisting.' — 3 Leigh 272, (295); 1 White’s Bq. Cas. 193-4, 107-11, and cases cited; 14 Yesey 162; Lyon v. Bolling, 9 Ala. 466.</p> <p>The doctrine of Copis v. Middleton, 1 Tur. & Russ. 229, (11 Eng. Oh. R.), adopted by this court in Foster v. Trustees of Athenasum (3 Ala. 302, 310), has no application to this case, inasmuch as that doctrine does not reach a case where the security is distinct from the surety’s obligation, and cumulative and collateral to the original debt. — 1 Tur. & Rus. 229; 3 MyL & K. 190; 9 Ala. 464, 467; 14 Yesey 162 ; 1 White’s Eq. Cas. 108-9,110-11. But the doctrine of Oopis v. Middleton is not law. — 11 Leigh 309; 12 ib. 274; 1 Speer’s Eq.- 534, 543 ; 1 Barr 512 ; 2 Brock. 160 ; Pride v. Boyce, Rice’s Bq. Rep. 276. The only courts holding to it are those of Vermont, North Carolina and Alabama. The deed of trust being an accessorial security, if Dillahunty (the surety) has paid the debt secured by it, he is entitled to be substituted to all the rights of the Decatur Bank under it.' — 1 Tur. & Rus. 229 ; 9 Ala. 464.</p> <p>2. Has Dillahunty, as a surety of W. W. Garrard, paid the debt secured by the first deed of trust? The facts all show, that W. W. Garrard was the real debtor ; and equity will unquestionably consider Dillahunty, the endorser for Ms accommodation, as his surety. It is true, the original bill of exchange described in the deed of trust was afterwards taken up by the note of Arnett, W. W. Garrard and Dillahunty, given under the extension law of 1837, and that by this arrangement tbe form of the debt and the time of payment were changed. But this change in the form and time of payment did not affect the identity of the debt. Equity looks to the substance, not the form of things; and if the debt paid by Dillahunty, as surety on the note, is the identical debt evidenced by the bill of exchange of which he was endorser, and which was secured by the deed of trust, then the deed still subsisted as a security, following the debt through all its phases, and Dillahunty can hold to it as a lien for his indemnity. In the case of the substitution, exchange, alteration, or renewal of bills or notes, the identity of the debt is not lost by the operation. The debt remains the same ; the evidence of the debtonly is changed.' — 14 Ala. 46 ; 10 S. & M. 120, (128). Independent of this general rule, it is obvious that under the relief law of 1837 (Olay’s Dig. 112, § 51), the new note given in this case was a mere extension, not an extinguishment or payment, of the old debt. — 14 Ala. 633 ; ib. 33, (46); 4 Hill 448.</p> <p>It may be true, as argued by the chancellor, that all right of action was lost to the Bank by the giving of the note in lieu of the bill; still that does not affect the question of lien in any way. — 14 Ala. 33, (46); 1 White Eq. Oas. 111. Nor does it matter that there was a change of parties when the note was given; the debt was still essentially the same. — 10 S. & M. 120. Suppose a creditor, holding a note against one and his surety, the note being secured by deed of trust, sues the principal, obtains judgment and execution, and a delivery bond is given and forfeited, and judgment thereon is rendered against the principal and sureties on the delivery bond; does this change in the form of the debt, and the presence of additional parties to it, affect its identity, or impair the lien of the creditor under the deed ? If the identity of the debt remains, i. e., if it be the same debt, then all accessorial securities continue to subsist, despite changes in the form of the debt. Absolute payment of the mortgage money, or a re-conveyance by the mortgagee, can only destroy the-lien of the mortgage. The mere cancellation of the note, and substitution of a new one, has no such effect.' — 2 U. S. Eq. Dig. 351, § 1285. That the taking up of the bill, and the execution of a new note with an extension of payment, does not discharge the lien of the deed of trust, see 14 Ala. 33 (46), 633 ; 4 Johns. Ch. 65 ; 8 Blackf. 99; 10 S. & M. 120 ; 2 ü. S. Eq. Dig. 348-9, §§ 1230, 1233, 1234-1, 1214-1, 1285-6, 421; 18 Ala. 42.</p> <p>3. But admitting that the original debt secured by the first deed of trust was paid by the extended note, does this alter the case? The original debt was really W. W. Garrard’s ; and Dillahunty, being his accommodation' endorser, was his surety. Now, if the extended note paid the original debt, who paid it? Certainly, the makers of that note, of whom Dillahunty (the accommodation endorser on the bill, and ex vi termini the surety) was one. Upon this payment by Dilla-hunty of the original debt, he was subrogated to the rights of the Bank under the deed ; and without even waiting until he had actually paid off this extended note, he could have filed his bill to have it discharged out of the proceeds of the sale under the trust deed, applying the fro rata share of the Decatur Bank for that purpose. — 11 Ala. 352 ; 1 White’s Eq. C. 81-90 ; Rice’s^ Eq. Rep. 216 ; 1 Speer’s Eq. 534-43; 6 Gill & Johns. 243 ; 4 Johns. Oh. 123; 1 Bland’s R. 103-5; 1 Rand. 53; 3 Ired. Oh. 513; 5 Barb. S. C. R. 398 (410). A payment by a surety, by giving his negotiable note, entitles him to sub-rogation.- — -1 White’s Eq. Cas. 102; 5 Barb. S. C. R. 398 (410); 2 Mete. 561.</p> <p>It will be found, that all the cases relied on by the chancellor, as sustaining his decree, were cases in which there was no independent accessorial security, e. g. where there was a joint note, or a joint judgment,, and nothing more. There, according to the authorities cited by the chancellor, the note, or the judgment, being paid, was functus officio, and “ got back ” to the principal debtor, leaving nothing independent of the note or the judgment, by which the surety could be reimbursed. Here, the bill of exchange and the deed of trust were independent contracts, and payment of the bill did not, of itself, operate a satisfaction of the deed; for that depended on the question, who paid it ? If paid by the grantor, then the deed was satisfied; but if paid by a surety, the deed still continued in full force for his indemnity. A court of equity will keep an incumbrance alive, or consider it extinguished, as will best serve the purposes of justice, and the actual and just intention of the parties.-i — Starr v. Ellis, 6 Johns, ©h. 393.</p> <p>1. The right of subrogation must arise during the existence of the liability for which the lien was given, for the obvious reason, that when the liability is-extinguished, the lien, having accomplished its purpose, is discharged, and the party to whom it was given, having no farther claim to the security, has no right to which any one can be subrogated. When a surety pays the debt to the creditor, he is regarded, in equity, as the purchaser of the debt, and is therefore entitled to the security given the creditor, as an incident to the debt. In that case, the debt is not regarded as being extinguished, but assigned to the surety.</p> <p>2. But when the Decatur Bank accepted of W. W. Garrard the extension note, and surrendered to him the bill of exchange, the liability of Taylor, Mason & Co., as acceptors of the bill, was, eo instanti, extinguished ; the security given them against that liability, being no longer necessary for their protection, was discharged, and “ got back ” to W. W. Garrard; and they, the acceptors, ceased to have any right to it, to which any one could be substituted.</p> <p>3. But the Decatur Bank and Garrard did not occupy the relation of creditor and debtor during the existence of the lien. If the extension note had not been taken, the Bank could not have sustained an action against him, or reached his property, except as the garnishee of Taylor, Mason & Co., upon tire allegation of their insolvency; and any other creditor of Taylor, Mason & Co. would have had the same right. Garrard was a stranger to the bill; there was no privity of contract between him and the Bank; the bill was discounted, not upon his credit, but on that of the parties to it. The effect of the transaction was this : that Taylor, Mason & Co. borrowed money from the Bank on their acceptance, to be advanced or loaned to Garrard, and the latter gave Taylor, Mason & Co. a security to place them in funds to meet a debt contracted by them for his accommodation. They became the debtors of the Bank and the creditors of Garrard. If this position be correct, then Dillahunty could not claim through the Bank as creditor of Garrard, nor could the Bank claim as a creditor, during the existence of the lien, through Taylor, Mason & Co., as sureties of Garrard.</p> <p>4. But if it should be considered that the Decatur Bank was, as holder of the bill, the creditor of Garrard, and as such had the right of substitution to Taylor, Mason & Co.’s lien, after their liability was discharged, yet, we contend, that Dillahunty cannot claim that right through the Bank, for that would be claiming a right of being subrogated to a right of subrogation, and extending the doctrine a step farther than the courts have ever gone.</p> <p>5. If Dillahunty and Taylor, Mason & Co. are regarded as co-sureties for Garrard on the bill, he is precluded from asserting any right to the lien, by reason of such co-suretyship; for the reason, that long before he made any payment on the debt, he consented to the discharge of Taylor, Mason & Co.’s liability, and (as a consequence) to the extinguishment of the lien given them as an indemnity; and for the further reason, that he at the same time bargained for and got an independent security in the deed to Arnett, the terms and stipulations of which were inconsistent with and repugnant to those of the deed to Lassiter.</p> <p>The following authorities are relied upon: — 10 Leigh’s Rep. 221; Bank of Virginia v. Boisseau, 12 ib. 381; Leading Oases in Equity, pp. 99, 100, 101, and notes; Brown v. Lang, 4 Ala.</p>

Tried before the Hon. ROBERT Dougherty. Assumpsit by Rachel Yardeman against Henry D. Knight’s administrators for money had and received by defendants’ intestate for the use of the plaintiff.

Tried before tbe Hon. Robert Dougherty. Trial op the right op property in a mare, between James E. Alexander, plaintiff in attachment, and William Derrett, claimant.

<p>Appeal from the Chancery Court of Mobile.</p> <p>Heard before the Hon. Wade Keyes.</p> <p>The ease made by the pleadings in the record is substantially as follows : Thomas Malone filed his bill on the 14th December, 1849, against Henry Leitman and Charles Bingham, to foreclose two mortgages ; one executed to himself on the 21st January, 1840, by them, for his indemnity and protection, as their endorser of the following notes : three held by tbe Bank of Mobile, one of them for $906 20, due 18 th April, 1840 j another for $901 06, due 18th May, 1840, and the third for $905 90, due 18th June, 1840 ; also one note for $1285, due sixty days after 4th December, 1839, and one for $1000, due 2d Eebruary, 1840 ; — which mortgage also provided for the payment of $800, for which Malone held the due bill of the mortgagors, dated May 16th, 1839. The condition of this mortgage is, that the mortgagors pay the said promissory notes and due bill, “ and all such notes as may from time to time be given on renewal thereof,” <fcc. The other mortgage was executed to John B, Toulmin, agent of Toulmin, Hazard &■ Co-, on the 3d day of March, 1838, for the same premises included in the deed to Malone, to secure the payment of a large sum, which, however, had, on the 12th June, 1845, been reduced by payments to $648 49, at which time, complainant avers, he purchased said mortgage, by paying for it that sum, and took the assignment of it by said Toulmin to himself.</p> <p>The notes to the Mobile Bank were renewed and reduced by partial payments, until the demand originally due upon them amounted on the 11th December, 1841, to $2,313, for which the mortgagors then gave their note, with complainant as endorser, which complainant paid on the 12th February, 1842. One of the other notes, having been also renewed from time to time, was reduced to the sum of $541 20, which was in like manner renewed and endorsed, and paid by Malone on the 8th day of January, 1842. These payments, with the $800 due bill, and the balance paid on the Toulmin mortgage, are insisted upon by the bill as subsisting demands chargeable upon the mortgaged premises, and prayed to be paid to the complainant by a sale under a decree of foreclosure.</p> <p>In January, 1850, Leitman answered the bill, admitting the execution of the mortgages and the indebtedness as charged ; but insisting that the amount due, if anything, was very small, inasmuch as Bingham, his late partner, had obtained his written agreement, in 1842, for the rent to be paid to Malone, to be applied to the demand, and that the property had been managed by Bingham, the son-in-law of Malone, ever since that time ; and he believed the rents had been received by him as agent of Malone, and accounted for. He further states, that a mortgage was executed on the same premises to Robertson, Beale & Go. for a large amount, which has been assigned by them to one Batre; that he and his said late partner, owing a number of debts, had applied for and obtained a discharge in bankruptcy, the certificate of which he exhibits with his answer ; that the-assignee in bankruptcy had never sold his equity of redemption, and that he (Leitman) disclaimed all interest in the suit.</p> <p>On the 14th March, 1851, Malone having in the meantime departed this life, a bill of revivor was filed by Charles Bing-ham, Thomas King, and Thomas Malone, sr., executors of said complainant, by which, after setting forth the proceedings bad by the parties to the original suit, they aver that Bingham admits the complainant’s right to the decree prayed for, and concedes the facts stated in the bill, and also pray that said Bingham’s name be stricken out as one of the defendants to the bill, and that he be allowed, as one of the executors of Malone, to become a complainant. The bill of revivor also states, that DeVendal and Batre claim some interest in the mortgaged premises under a subsequent incumbrance, and prays that they may be made defendants to the original bill and bill of revivor, and that they answer the same, &c.</p> <p>In January, 1850, DeVendal and Batre filed their bill in the same court to foreclose a mortgage upon the same premises, executed by Leitman & Bingham to Robertson & Co. on the 15th January, 1840, to secure the payment of certain notes due to the mortgagees, amounting to §5,218, which notes and mortgage were assigned by Robertson & Co. to Batre, and by Batre to one West, as trustee, for the benefit of his creditors. West having died, DeVendal was appointed trustee in his stead by the Chancery Court. Malone was made a party defendant to this bill, and the bill charges, on information and belief, that Malone’s mortgage “ was without any consideration, and that the indebtedness therein mentioned is wholly fictitious; that the object of said mortgage was, to hinder and delay creditors ; that there are no such notes as described in said mortgage in the possession of any of the said defendants, or in existence ; and for this reason, complainant is of opinion, that if ever such indebtedness existed between the parties, it had been paid or settled, and the lien of the mortgage thereby released.” It also insists, that if such indebtedness ever existed, the rents and profits received by Bingham, the agent and son-in-law of Malone, who occupied a portion of the property and rented out the remainder, was amply sufficient to satisfy the same.</p> <p>Malone answered this bill, admitting the execution of the mortgage, and the justness of the demands secured by it; reasserting the validity of his own mortgages as stated in his bill, and denying the agency of Bingham in taking possession or renting the mortgage premises lor his benefit; also denying all fraud. Having died after filing his answer, a bill of revivor was filed, and the suit ordered to stand revived against Bingham and King, as his -executors. They answer the bill, denying the agency of Bingham, and re-asserting the validity of Malone's mortgages.</p> <p>By an agreement between the counsel, the bill of DeY endal was allowed to stand as a cross bill and an answer to the bill of Malone.</p> <p>A reference was made to the register to take an account of what was due to the complainants in each cause, and to consider and report what deductions should be made on account of payment of rents received by either party. He reported, giving the priority to the Malone mortgage, and ascertained that the sum of $4,440 15 was due thereon, being the amount of the $2,373 note due to the Mobile Bank, with interest, and excluded the other demands, as also the sum paid on the Toulmin mortgage, because Eobertson & Co., the subsequent mortgagees, had no notice of that mortgage. He also reported the debt duo, as secured by the Eobertson & Co. mortgage, at $10,053 94, and charged Malone with the receipt of $115 rent, and interest thereon to 23d January, 1853, amounting to $110. -</p> <p>Both the parties filed exceptions to this report. Malone’s executors, because, 1st, the Toulmin note and mortgage were excluded for want of registration, when the objection was not taken in the pleadings; 2d, for refusing to allow the $800 note described in the mortgage to Malone ; 3d, because the master charged Malone with rent; 4th, the master erred in taking any notice of the claim of DeY endal; 5th, in failing to allow the claim of Malone as stated in the answer of Bing-ham. DeYendal excepted, 1st, because the master allowed the Malone mortgage as a charge on the premises; 2d, because he erred in giving it priority over DeVendal’s ; 3d, in allowing the $2,373 note and interest; 4th and 5th, in not charging Malone with greater rent; 6th, in holding that Malone had paid any o;f the debts of Leitman and Bingham, for which he was bound as endorser. Upon hearing- these exceptions, the register overruled all those filed by Malone’s executors, as well as those filed by DeYendal, except as to the rent, which he increased, charging Malone with three quarters, instead of .one, quarter.</p> <p>An appeal having been taken to the chancellor from the decision upon the exceptions by the master, the first exception, which objects to the exclusion of the notes and mortgage made to Toulmin, was sustained, and the other exceptions were held to be well determined by the master. Thereupon the court ordered the report to be corrected, which was accordingly done, and the amount due to the complainant in the original bill was set down at $6,140 61, less rents received $662 30, and the demand to DeVendal at $10,525 33 ; and a final decree was rendered upon the confirmation of this last report, giving Malone’s mortgage the preference. To revise this decree the case is brought to this court, and the following errors are assigned :</p> <p>1. The chancellor erred in sustaining Malone’s first exception to the master’s report.</p> <p>2. In overruling DeVendal’s first, second, third, fourth and sixth exceptions to the report.</p> <p>3. In sustaining the master in the amount charged to Malone as rents.</p> <p>4. In the re-reference to the master.</p> <p>5. In the final decree declaring the priority of Malone’s mortgage over DeVendal’s.</p> <p>6. In referring it to the master to decide upon the equities of the parties.</p>

<p>1. A claim allowed against an insolvent estate for money paid by mistake, under these facts: The creditor, as administrator of the estate of the decedent’s father, paid to the decedent’s trustee (she being- then a married woman) the distributive share of one of her brothers, which was supposed by all the parties to have been assigned to her husband for her separate use, and was afterwards compelled to pay it again to her husband’s administrator, upon proof that the assignment was to the husband in his own right, and not for the separate use of his wife.</p>

Tried before the Hon. LymaN Gibbons. Assumpsit by “ Eliza Medlock, endorsee,” against the appellants, on a promissory note for $540, executed by Agee, Dumas & Co., of which firm the appellants were partners, payable to Lucius Medlock, or bearer, for value received.

Heard before the Hon. E. D. Townes. This bill was filed to recover several slaves which complainants claimed under the will of their grandfather, John Wilhite, while the defendant claimed as purchaser under complainants’ father and mother.

Tried before the Hon. JOHN A. Cuthbert, Gilbert & Bro. recovered a judgment against Waring & Co., before a justice of the peace, for $15 60, from which the defendants appealed to the Circuit Court, where the plaintiffs filed a statement claiming $23, at the return term of the appeal in November, 1850. At the same term an order was made, by consent, referring the case, to arbitration, but the names of the arbitrators were left blank.

<p>Appeal from the Circuit Court of St. Clair.</p> <p>Tried before the Hon. G-eo. D. Shortridge.</p> <p>MotioN to dismiss the appeal.</p>

Trover by William Johnson, as surviving partner of the late firm of McCoy & Johnson, against the appellants, for the conversion of thirty-eight bales of cotton. The pleas were, the general issue, and the statute of limitations of six years. On the trial, the plaintiff offered in evidence the record of a suit in detinue, brought by said McCoy & Johnson against Holmes, Bott & Earle.

<p>1. An entry on the judge’s docket, in the hand-writing of the presiding judge, reciting that the plaintiff was ruled to give security for costs by the next term, is not sufficient to authorize the entry of an order to that effect nunc pro tunc at a subsequent term, unless it shows the reason why the order was made.</p> <p>2. Security for costs cannot be required upon proof of the non-residence of the nominal plaintiff who sues for the use of another person.</p>

Tried before the Hon. ANDREW B. Moore. Detinue (under the Code) for sundry slaves. Several errors are assigned, which it is unnecessary to notice, as the main point argued by the counsel, (and the only one decided by the court,) was the action of the court below upon the eighth plea and the replications to it, and this plea is substantially set out in the opinion.

<p>Appeal from the Circuit Court of Benton.</p> <p>Tried before the Hon. Thomas A. WalKEr.</p> <p>This action was commenced by summons and complaint tinder the Code. The contract declared on is as follows: “ The plaintiff claims of the defendants $1000, agreed to be paid to her by the defendants, in consideration that she and one Memory Allen and his wife Elizabeth, children and heirs-at-law of John Prater, deceased, would desist from objections which they were about to make to the probate of the last will and testament of said John Prater, the father of said defendants, who were devisees under said last will and testament, and to the validity of the same, and permit the same to be admitted to probate without her objecting thereto, or contesting the validity of the same ; and she says that, in consideration of said promise, she did desist, and said Allen and wife did desist, from making any objections to the probate of said will, and that the same was admitted to probate without any objections being made thereto ; whereupon the defendants, heirs-at-law and devisees of said John Prater, deceased, promised to pay said plaintiff within $100 of the amount to be received by them respecting a devise of the said John Prater under his said last will and testament; and she says the above sum of $1000 will be the amount within $100 of the sum which defendants respectively received as devisees under said will, and that sum is now due.”</p> <p>“ On the trial, the plaintiff, who was one of the heirs and legatees of John Prater, deceased, offered evidence tending to prove that, on the day when the will of said Prater was offered for probate before the probate judge of Benton county, she appeared for the purpose of contesting the same, and had employed counsel for that purpose ; that the defendants made the promise set out in plaintiff’s complaint, the sole consideration for which was, that plaintiff should withdraw all objection to the probating of said will, and suffer the same to be probated so far as she was concerned. There was no evidence that there was any objection whatever that could have been urged against admitting said will to probate.” The court charged the jury, in substance, that if they believed from the evidence that, when said will was offered for probate, plaintiff employed counsel to contest it, and appeared before the court for the purpose of contesting it, and that defendants, in consideration of her withdrawing her opposition to the probate of said will, promised to pay her the sum of money now sued for, this is a sufficient consideration to sustain an action on the promise; to which charge the defendants excepted.</p> <p>“After all the evidence had been adduced, the argument of counsel heard, and the court had charged the jury, upon defendants’ asking the court that, if there was a variance between the proof and the contract set out in the complaint, plaintiff could not recover, plaintiff asked leave to file an additional count to her complaint; to which defendants objected, but their objection was overruled, and the following count was then filed, to-wit: “ Plaintiff claims of defendants $1000, due from defendants to plaintiffs, with interest from the — day of October, 1850”; to which defendants excepted.</p> <p>The charge of the court, and the allowing of the amendment, are now assigned for error.</p> <p>1. The complaint alleged the consideration of the contract declared on to be, that plaintiff and Allen and wife should desist from objecting to the probate of Prater’s will, and that they did desist; while the charge asserts, that plaintiff may recover without showing that it was a part of the contract that Allen and wife should withdraw their objections, and that they did withdraw them. The charge, therefore, was erroneous. — Rowland & Heifner v. Ladiga’s Heirs, 21 Ala. 9. The consideration of the contract must be proved as alleged, •to entitle the plaintiff to a recovery. — Chitty’s PL, pp. 304-5; Stone v. Knowlton, 3 Wend. 374; 3 Caines’ Rep. 286.</p> <p>2. The charge broadly asserts that the plaintiff may recover upon the consideration proved, although no injury or inconvenience resulted to her from the promise, and no benefit accrued to the defendants, and although it was not in compromise or settlement of a suit, or other legal contest, as to the result of which there was any doubt in law or fact. The bill of exceptions declares, that the sole consideration proven was, that the plaintiff should desist from objecting to the probate of the will; and this was not sufficient. In all the cases in which a promise, made in compromise of a legal claim or demand, has been held good, either a suit was then pending, the cost and trouble of which were avoided by the promisor, or the facts showed the existence of a cause of action, the justice or legality of which was doubtful; for it is well settled, that forbearance to sue, when no cause of action existed, is not a sufficient consideration. — Parsons on Con., pp. 363-6 Newell y. Fisher, 11 Sm. & Mar. 431: Edwards v. Baugh, 11 Mees. & W. 641; Longritlge v. Dorville, 7 Serg. & Low. (5 B. & Aid.) 43; Oro. Eliz. 206; Holt v. Robinson, 21 Ala. 106.</p> <p>3. The court erred in allowing an additional count to be filed. An amendment of a declaration will not be allowed, in a material point, after an issue is submitted to the jury.— Watkins v. Canterbury, 4 Por. 415. There is nothing in the Code which tends, in the slightest degree, to sanction the action of the court. Section 2402 applies only when there is “ a defect, or want of form,” in the complaint, which is not pretended here, as the complaint set out a good cause of action, in a legal and formal manner, and its allegations, if proved, would have authorized a judgment on it. The amendment was allowed after the evidence was closed, after argument had, after the jury had been charged, and when the defendants’ counsel invoked a principle of law which showed that the plaintiff had failed to make out her cause of action by the proof; its effect was, to allow the plaintiff to declare upon another cause of action, of which the defendants had no notice, and which changed the case that had been already submitted to the jury. To allow such an amendment, would be to abrogate all the substantial and salutary rules of pleading, as well as those which are merely technical, and, instead of requiring the proof to conform to the pleadings, allow.a party to make his pleadings conform to the proof when ascertained. Amendments which are allowable are within the discretion of the court, and cannot be reviewed; but the granting of inadmissible amendments is revisable on error.- — Guilford v. Adams, 19 Pick. 376 ; Haynes v. Morgan, 3 Mass. 208 ; Brigham v. Este, 2 Pick. 32.</p> <p>4. Is not the contract here relied on illegal, as being against public policy ?</p> <p>1. The consideration of the contract declared on is sufficient to sustain the action. A benefit conferred, or an injury suffered, is a sufficient consideration to sustain a promise. Prevention of litigation, or any equivalent proceedings to try a question, the legal result of which is doubtful, is a good consideration ; and no investigation into the character of the claims submitted, upon an agreement to prevent or stop litigation, will be permitted. — Parsons on Con., pp. 351, 364,369; Chitty on Con., pp. 29, 43, and notes ; Story on Con., p. 353; Okison v. Barclay, 2 Penn. 531; 3 Pick. 93.</p> <p>2. The amendment of the declaration was properly allowed. Code, §§ 2402, 2403.</p>

Heard before the Hon. J. W. LeseSNE. This bill was filed by Samuel M. Griggsby against James Hair, to obtain the legal title to a tract of land which the defendant held, and to enjoin him from… Held: and to enjoin him from further proceedings in an action at law to recover possession of it.

<p>Appeal from the Circuit Court of Lawrence.</p> <p>Tried before the Hon. Geo. D. Shortridge.</p>

<p>Appeal from the Circuit Court of Madison.</p> <p>Tried before the Hon. Thomas A. Waleer.</p>

Heard before the Hon. Wylie W. Masoh. This bill was filed by the defendants in error, who are the heirs-at-law of John Harper, deceased,… Held: “ that Bradford’s answer, when taken in connection with the proof, clearly showed that his lien upon the land was lost by the acceptance of the bill of exchange, and that Harper was a bona fide purchaser for valuable consideration without notice, and therefore his equity was superior to Bradford’s.” He therefore granted the relief…

<p>1. A chancery suit for the abatement of a livery stable as a nuisance was referred to arbitration by order of the court, and it was ordered that complainant’s bill should be dismissed if she did not comply with the conditions of the award by the next term of the court. The arbitrators having-awarded an exchange of lots between the parties, and the payment by complainant of the estimated difference in the value of the lots, and the complainant having failed to comply with the award, her bill was afterwards dismissed : Held, that the award was not final until the parties had performed, or offered to perform, the acts required to be doneby them respectively; and therefore, a plea to an action on the injunction bond must aver performance, or a readiness to perform, on the part of the pleader.</p>

Tried before the Hon. Robert Dougherty. The appellee, as administrator of Matilda P. McLane, brought suit against the appellant, as executor of Thomas H. Lightfoot, on a promissory note for $29 60, executed by said Lightfoot, and payable to said Matilda. The defendant pleaded non assumpsit, ne ungues executor, and several other pleas which it is unnecessary to notice.

Tried before the Hon. Alex. McKikstey. This action, which was commenced by summons and complaint under the 'Code, was founded on a policy of insurance executed by the appellee to one Trimble on the “ Planters' Press,” including the warehouse, press, and machinery, which policy was assigned by said Trimble to the plaintiff.

Heard before the Hon. Wylie W. Maroh. This bill was filed, in 184T, by John Foster, as administrator.of William Royall, deceased, against John McKenzie and Amasa Howard, to compel a settlement and account of an assignment executed to the defendants by said Royall, in October, 1832, in Lancaster District, South Carolina, where the parties then resided.

Tried before the Hon. ANDREW B. Moore. Covenant by William Young against Samuel P. Hudson on a detinue bond, which the defendant had signed as surety of Joshua B. Wicldiam, who was the plaintiff in the detinue suit.

Tried before the Hob. Alex. McEjNStby, This was an action of debt on a penal bond, broug-bt by the appellant, as administrator of the estate of George M. Rives, deceased, against Jacob Baptiste.

Heard before the Hon. J. W. LesesNE. This bill was filed by the appellant, as a judgment creditor of Aaron Gage, to redeem certain lots… Held: “ that the note and judgment thereon were prima facie evidence that the demandant was a bona fide creditor of Bernard.” A judgment by default stands on no higher ground than a judgment by confession, since it is but an implied confession of the cause of action alleged. The present, however, is a stronger case than the one just cited.

Tried before the lion. John Gill Shorter. Assumpsit by Samuel J. Stewart against the appellants, on a promissory note, of which the following is a copy: “$1085. By the 14th day of December next, we promise to pay William Davis, administrator of Samuel J. Stewart, or bearer, one thousand and eighty-five dollars, for value received, this 11th Jan’y, 1851. (Signed) Bryant Dunoan. Geo.

Tried before the Hon. Turner Reavis. Detinue by the appellee, as the administrator of Mrs. Mary J. Blocker, deceased, against Samuel K. Jennings, the appellant, for a slave named Miranda ánd her four children.

<p>Appeal from the Chancery Court of Jefferson.</p> <p>Heard before the Hon. Jr...íes B. ClaRK.</p>

<p>Appeal from the Chancery Court of Greene.</p> <p>Heard before the Hon. E. D. Towses.</p> <p>This bill was filed by the children of George Hays, deceased, against William P. Gould, his executor ; seeking an account of the trust, and charging the executor with gross negligence and mismanagement in regard to it. At the June term, 1851, the decree of the former chancellor was reversed, and the cause remanded for further proceedings in accordance with the principles then laid down. — See 19 Ala. 438. A reference to the master of the matters of account was after-wards awarded in the court below, and the case now comes back on appeal from the decision of the chancellor, on the points presented by exceptions to the master’s report.</p> <p>The only question now presented in this cause, is, as to the amount of compensation to be awarded to the executor for his services. His right to reasonable and just compensation has already been settled by this court.' — -Gould v. Hays et al, 19 Ala. 438. Under the decision remanding the cause, and the decree of the chancellor directing the master to take evidence and report a reasonable and just allowance to the executor for Ms services, the plaintiff in error insists the rules of evidence have been violated and disregarded, and manifest injustice done him. In taking the account the master ruled, that no witness could be allowed to testify as to the quantum of compensation, except upon his personal knowledge of “the amount of labor performed by the executor, the responsibility involved, and the value of the estate” ; that no inspection of the bond of the executor, and the inventory and appraisement of the estate, showing the extent and value of the property managed, would authorize a witness to say what would be a reasonable and just compensation.</p> <p>Let the case be tested by this rigid rule, and how does it stand ? Only nine of the witnesses whose testimony was before the master came within his rule: Thomas Cauffield, Henry Cauffield, Madison Johnson, N. G. Friend, E. Eidge-way, Joseph W: Hall and Caswell Eady, for plaintiff in error, and John C. Johnson, for defendant, testified from their own knowledge of the facts ; they were of the neighborhood, acquainted with the business attended to by the executor, and had a knoweldge of the “labor performed by him, the responsibility involved, and the value of the estate” ; they were equally credible, and had an equal opportunity of knowing the facts ; the average of their testimony established an an■nual compensation of $1786. The evidence of the eight witnesses first named, established an annual compensation of $1,857 50 ; the evidence of the one last named established an annual compensation of $1166. The master, in his report to which exception was taken, allowed an average annual amount of $1,170 27, in the form of commissions for the first three years, and an annual salary afterwards. The inquiry then presents itself, under what rule did the master attain his conclusion? Not from.the testimony of any of the witnesses, because from that a different result is shown. Had he, then, a right to depart from the testimony, and act upon his supposed private knowledge of facts ? The law says not. A master, in taking an account, cannot act upon facts in his own knowledge. — Bissell v. Bozman, 2 Dev. Eq. 229. The rules of evidence are the same in courts of equity as in courts of law. — 2 Dan. Oh. Pr., 1031, note 1 ; 2 Bibb 5 ; ib. 28: IT Mass. 803 ; 4 Monroe 20 ; 1 Johns. Oh. 425. All circumstances being equal, as to the knowledge and standing of witnesses, the preponderance of numbers is entitled to the advantage. — Part 1, Oowen & Hill's Notes; 1 Stark. Ev. 465. Upon the mere question then, as to the weight of testimony, the master’s report would be set aside.</p> <p>This court can, without remanding the cause, or causing the account to be referred back to the master, settle the true amount of compensation to the executor, upon the evidence reported. Upon this point, see Davis v. Roberts, 1 Smedes & Marshall 543.</p> <p>Where, in an inquiry before the master on a matter of account, several witnesses are examined and give different estimates as to value or price, and lie can make no discrimination among them, either as to their integrity, intelligence or opportunities of knowledge, or judgment, he may safely assume as his guide an average of their different estimates. — Morrison v. McLeod, 2 Ired. Eq. 108.</p> <p>In determining the compensation to be allowed to an executor, regard must be had to the nature and extent of the estate, the duties which he is required to perform, the manner in which he has discharged them, and the result of his management to the estate. In this case, the appellant acted as executor nearly six years ; the estate consisted of a large body of lands, embracing two plantations in this State and other lands in Mississippi, and about one hundred and sixty negroes; one of these plantations was situated about one mile from the appellant’s residence, and the other about three miles ; and the record nowhere shows that he ever went to Mississippi on account of -the lands there situated. The estate was a large one, bnt it was not of that character which required extraordinary services from the executor, nor even his absence from home. The duties required of him were, to exercise such superintendence over the plantations and slaves as would make them most valuable to the appellees, — to see that fit and proper persons were employed as overseers ; that the slaves were provided with suitable houses, food, and clothing ; and that the crops were gathered and sold3 an<l the proceeds applied to the payment of the expenses and other proper debts and charges against the estate. The record tends to show that he did not give the same care and attention to the plantations of the estate, that a prudent man would have given to his own : he seldom visited the plantations ; he employed overseers at the highest rates ; the condition of the cabins is proved to have been bad, and there was a scarcity of blankets ; and by his management the estate lost $1826 by Toulmin.</p> <p>To what compensation is an executor entitled, whose management has resulted so unprofitably to the estate ? The ap-pellees insist, that the register and chancellor allowed as high a rate of compensation as was justified either by the testimony in the case, or the result of the executor’s management to the estate. The testimony of McAlpin and Eambro was entitled to more weight than that of any other witnesses, because they had both been engaged in the management of estates requiring much more care and attention than that of Hays, and were therefore better qualified to put a proper estimate upon the value of the appellant’s services, and the amount of his compensation, than the other witnesses ; and they estimate the executor’s compensation at 2-J per cent, on receipts, and the same on disbursements. But, even if the rate of compensation fixed by them should not be adopted, still the amount fixed by the court below was a fair average compensation as fixed by all the witnesses. The usual commissions allowed to executors are, 2£- per cent, on the receipts, and the same on the disbursements j and this is deemed a sufficient compensation for their ordinary services (2 Lomax on Executors, p. 329, § 27) • and it is only where extraordinary trouble has been imposed, and extraordinary risk incurred, that a higher rate has been allowed. — Fitzgerald v. Jones, 1 Munf. 156 ; Ashurst v. Ashurst, 13 Ala. 786 ; O’Neil v. Donnell, 9 ib. 737. But in this case, there is no evidence that the executor was put to any extraordinary trouble, or that he incurred any extraordinary risk.</p>

Tried before the Hon. Nat. Cooe. Assumpsit by Wiley Dorman against the appellants, on a joint and several promissory note for $578 18, dated the 28th December, 1849, and payable one day after date to said Dor-man or bearer, for value received. The defendants pleaded usury, and several other pleas which it is unnecessary to notice..

<p>1. A plea in abatement of matters de hors the record is fatally defective on demurrer, if not verified by affidavit.</p> <p>2. In trespass to try titles, the pendency of another action between the parties for the same premises is not good matter for a plea in abatement,</p> <p>3. If the names of the sureties for the costs of the appeal are shown by the record, although not mentioned in the clerk’s certificate, it is sufficient.</p>

Tried before the Hon. Nat. Cook. Assumpsit on the common money counts, by Marcellus B. Jelks against Dawson A. McRae; plea, the general issue.

<p>1. Suspicion of fraud on the part of the defendant, coupled with gross inadequacy of price, and the pre me of pecuniary embarrassment on the part of compilainant, is sufficient te .minee a court of equity to rescind a contract of sale.</p> <p>2. In this case the contract v. as rescinded, upon proof that the complainant, who was in embarrassed circumstances, (Ms property levied on, and about to bo sold under execution,) sold liis farm to defendant, received part of the price in cash, and for the residue accepted a deed from defendant to a tract of land lying in Georgia, which complainant had never seen, and which was not worth more than one half the amount at which it was estimated in the transaction.</p>

Tried before the Hon. C. W. Rapier. The appellant commenced two actions on the same day, before a justice of the peace, against the appellee, one to recover $50 for the hire of a horse, buggy and harness, and the other to recover $20 damages for injuries done to the buggy and harness while in defendant's possession; and both actions were removed by appeal into the Circuit Court.

<p>1. Whea an action is brought by summons and complaint (under the Code) on a promissory note and an open account for work and labor done, it is error to render judgment final by default, for the aggregate amount of the sums claimed, without the intervention of a jury, or the execution of a writ of inquiry.</p>

<p>1. When an action at law is brought on a penal bond conditioned for the payment of money on the performance of a condition precedent, and the defendant flies a bill to obtain a discovery as to the execution of the trust which constituted the condition, if the answer of the obligee discloses that the trust has not been fully executed, the court may enjoin the action at law, without compelling the obligor to account for the benefit received from the partial performance.</p> <p>2. A court of equity has no power to change contracts fairly entered into, nor can it, unless under special circumstances, relieve against the consequences of the non-performance of a condition precedent.</p>

<p>Appeal from the Court of Probate of Mobile.</p> <p>(No briefs bare come to the Beporter’s hands.)</p>

Tried before the Hon. O. W. Rapier. The appellant sued the appellee before a justice of the peace, for $18, the hire of carriages procured by the sheriff, under the direction of the circuit judge, while the court was in session, to convey the grand jurors to the county jail for the purpose of inspecting it.

<p>Appeal from the Circuit Court of Morgan.</p> <p>MotioN to affirm the judgment on certificate, because the record was not filed until after the third day of the term.</p>

<p>Appeal from tbe Court of Probate of Choctaw.</p>

<p>1. Plaintiff in detinue, having recovered only one of the slaves sued for, excepted to the rulings of the court against him, and took an appeal, but after-wards coerced satisfaction of the judgment; this fact havingbeen brought to the knowledge of the appellate court by affidavits, he was required to make restitution by the next term of the court; and now, having failed to comply with this order, his appeal was dismissed.</p>

Tried before the Hon. Andrew B. Moore. Assumpsit, on the common counts, for work and labor done, by Henry M. Oates against Perry Kirkland ; pleas, non as-sumpsit, payment, set-off, and failure of consideration.

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

<p>1. When no supersedeas bond, nor security for the costs of the appeal, is given, the cause will he stricken from the docket on motion, although the clerk certifles that “ no bond was required because all costs have been paid.”</p>

Tried before the Hon. C. W; Bapier. George B. Gayle, suing for the use of W. A. Williams, having recovered a judgment against George Petty, before a justice of the peace, for $13 12, the defendant took an appeal to. the Circuit Court, where the plaintiff filed a statement claiming “$15 for negro hire.” Both parties were examined as witnesses in the Circuit Court. -The plaintiff testified, that he had hired the slave to the defendant for one month, at $15 per month ; that he…

Tried before the Hon. Turnee Reavis. Assumpsit by William A. Smith against Alexander Glass-cock, on a promissory note for §950 50, dated April 1, 1851, payable to the order of Monroe Donoho on the 15th February, 1852, payable and negotiable at the Bank of Mobile, endorsed by said Donoho to Fontaine & Dent, and by Fontaine & Dent to plaintiff.

<p>1. Warehouse-men may maintain assumpsit for cotton “shipped hy them as warehouse-men only,” and not delivered to the consignees, provided the contract was made with them personally.</p>

Tried before the Hon. Robert Dougherty. The appellee sued out a certiorari to remove into the Circuit Court certain proceedings had before the Commissioners’ Court in the establishment of a road, which is described in the report of the jury as I! commencing on the old Federal road, running through section 28, township 16, and range 29, through lands belonging to Sterling Bass and Turner More-land, thence through Wm.

<p>Appeal from tbe Circuit Court of Barbour.</p> <p>Tried before tbe Hon. John Gill Shorter.</p> <p>This action, which was commenced by summons and complaint, was founded on a promissory note for fifty dollars, executed by the defendant (Willis Hughes) on the 28th. day of December, 1849, and payable to Benjamin Parmer by the first day of January, 1851. 'The defendant pleaded want of consideration. Yerdict and judgment for plaintiff, under the charge of the court, which is now assigned for error.</p> <p>cited Duncan v. Hall, 9 Ala. 128, and Finn & Dulaney v. Barclay, 15 ib. 626.</p>

<p>1. Whan an appeal is taken by “the solicitor of the complainants,” some of whom were infants suing by their next friend, the appeal is not valid so far as the infants are concerned ; but as to the adult complainants, the authority of their solicitor will be presumed.</p> <p>2. A bond lor security for the costs of an appeal is not necessary : a simple acknowledgment in writing is sufficient, unless the appeal is intended to operate as a supersedeas.</p> <p>8. An appellant who has enforced and received satisfaction of the decree, will not be allowed to assign errors, until lie has done what is necessary to place the appellee in statu■ quo.</p>

<p>Appeal from the City Court of Mobile.</p> <p>Tried before the Hon. Alex. McKinstry.</p> <p>This was an action against a sheriff for an alleged escape, and was commenced by summons and complaint under the Code. The complaint alleges, that the plaintiffs, Goldsmith, Forchoimer & Co., commenced an action at law against one L. B. Acker on the 30th day of January, 1852, and at the same time sued out a bail writ against him, on the ground that he had fraudulently conveyed his estate or effects ; that said writ was placed in the hands of the then sheriff of Mobile, who arrested said Acker under and by virtue of it; that said Acker,.on the same day, gave bond, in due course of law, with condition that, if cast in said suit, he should pay and-satisfy the judgment of the court, or surrender his body in satisfaction thereof, or that his sureties in the bond should do the same for him ; that such proceedings were afterwards had in said suit, that plaintiffs recovered a judgment against said Acker on the 11th day of November, 1852, upon which judgment an execution was issued, in due form of law, returnable to the next term of the court, commanding the arrest of the body of said Acker to satisfy said judgment; that this writ came to the hands of the defendant, James W. Lang, who was then the sheriff of Mobile, on the 20th day of December, 1852, and was by him returned “ not found ” on the 4th day of February, 1858 ; that said Acker was afterwards, to-wit, on the 4th day of April, 1853, surrendered into the custody of said defendant, as sheriff, in satisfaction of said judgment; and that said defendant afterwards suffered him to escape out of custody, without any legal right or authority for so doing.</p> <p>The defendant pleaded, that said Acker, after Ms surrender as alleged in the complaint, to-wit, on the 29th day of April, 1853, made affidavit, before a justice of the peace, that the particular allegation sworn to by plaintiffs in order to hold him to bail, viz., that he had fraudulently conveyed his estate or effects,.was untrue, and that he had no estate, moneys, or effects, real or personal, in possession or expectancy, within the State of Alabama, subject to levy or sale by execution, or anything in action, in his possession, or under his control, within said State, excepting articles which are exempt from levy and sale.by law ; that the plaintiffs had three days’ notice of the time and place when, where, and before whom said affidavit would be made • that the justice of the peace before whom the application was made thereupon granted an order discharging said Acker from custody, under which order defendant discharged him, as he was by law bound to do. The affidavit and schedule made and filed by said Acker, which are made a part of the plea, are as follows :</p> <p>“Affiant says, that he has no moneys, estate, or effects, real or persona], in possession or in expectancy, within the State of Alabama, subject to levy and sale by execution, nor anything in action, in his possession, or under his control, in said State, excepting those articles which are exempt from levy and sale by law ; and that he has not conveyed or concealed anything for his own use, or to defraud his creditors.”</p> <p>“L. B. Acker has no estate, moneys, or effects, of any kind, real or personal, in possession or expectancy, within the State of Alabama, subject to levy and sale by execution, and nothing in action, in his possession, or under his control, in said State; and for this reason he can file no schedule of his property.”</p> <p>The plaintiffs demurred to this plea, and specified the following causes of demurrer:</p> <p>“1. That said plea is inconsistent on its face, in this : It states that said Acker, in the affidavit made by him before said justice of the peace,1 declared on oath that the particular allegation sworn to on behalf of the plaintiff in order to hold him to bail, to-wit, that he had fraudulently conveyed his estate or effects, was untrueand said plea sets forth said affidavit at length as a part of said plea, and there is no such allegation on oath in said affidavit.</p> <p>“ 2. That said plea is double.</p> <p>“ 3. That, in order to discharge said Acker with schedule, plaintiffs were entitled to ten days'’ notice of the time, place, and justice of the peace, when, where, and before whom said Acker was to appear, and make such schedule and affidavit.</p> <p>“4. That said affidavit was'insufficient to warrant the discharge of said Acker by said defendant in the suit complained of.</p> <p>“ 5. That, if the affidavit itself were sufficient to warrant a discharge, such as the plea sets up, no such schedule is annexed as is required by the statute, but only an excuse why no schedule is made.</p> <p>“6. Because the magistrate had no jurisdiction to order a discharge in the premises.”</p> <p>The court overruled the demurrer; and issue being then joined on the plea, the jury returned a verdict for the defendant. The overruling of the demurrer is the only error assigned.</p> <p>Mr. Acker was arrested under the old law existing before the Code; and to discharge himself, he should have taken the oath required in Clay’s Digest, page 71. — 23 Ala. 668 ; 1 ib. 22; 10 ib. 237.</p> <p>The affidavit is wholly insufficient as a controverting oath, under the second section of the said act. The act says, the defendant must swear, that he has neither “ money, estate, or effects, whereby to satisfy the debt.” The affidavit says, that he has no money, estate, &c., “in the State of Alabama, subject to levy and sale by execution.” The act also requires the affidavit made by the plaintiff to be controverted, which this affidavit fails to do. He may have had money “whereby to satisfy the debt,” although it might not be subject to “ levy and sale.” — l„Cranch 117; 2 Port. 410 ; 3 M. & W. 248 ; 4 Yerm. 513.</p> <p>Neither is this affidavit good under the third section of the act referred to. The oath provided by that section can only be taken when the defendant has some effects, and therefore he cannot take the controverting oath provided in the second section. Under this section, the defendant is .required to file his schedule of effects. The oath required is not as comprehensive as that required by the second section, and the defendant cannot be allowed, when he has no effects at all, to escape the oath provided for his case in the second section, by taking that in the third; that would enable defendant to avoid both acts, as he has attempted to do in this case.</p> <p>It is clear, however, that the affidavit was made in view o,f the provisions of the Code, which, we say, is wrong ; but admitting this is right, then he has equally failed to comply with that act. By the Code, two classes of cases are provided for, as under the old law : one, where the defendant has no effects ; and the other, where he has effects. In the first case, defendant must controvert the oath made by the plaintiff, which is here not done, and must also swear that he has no money, effects, &c., within the State of Alabama, to satisfy the debt.' In this case, the defendant only swears that he has none “ subject to levy and sale by execution.” In the latter case provided by the act, the defendant “ must file his schedule, setting forth the character, description, &c., of the effects.” Now tbe defendant, in Ms affidavit, does not pretend to cpm-ply with this act: instead of affirming the requirements in his own affidavit, he says that he cannot comply because he has no effects. Then he should have taken the oath required by the first section, which was provided specially for his case. The oaths are very different, and he cannot protect himself under this last section, without complying fully with its requirements. As the creditor cannot arrest his debtor, except by a strict compliance with the statute; so the debtor cannot discharge himself, when arrested, except by a compliance with the terms of the act. — 1 Paine 400.</p> <p>1. The law having given a judicial cognizance of the matter to the justice of the peace, his order of discharge, even though erroneous, cannot be disregarded by the sheriff, (a merely ministerial officer.) unless the order of the justice be suspended or restrained by a superior judicial tribunal.</p> <p>2. And independent of the order, Acker was entitled to enlargement by his affidavit alone; and this either according to the Code, (§ 2182, clause 1,) or to Clay's Digest (p. 70-1, § 2.) The words “ subject to levy and sale by execution,” in Acker's affidavit, clearly mean not exempt from execution; or, that he he retained no property which he was not allowed by law to keep, as against his creditors. Property is “ subject to levy and sale under execution,” though the sheriff may not be able to find, or lawfully to reach it. If the affiant were prosecuted for perjury, it would be ridiculous for his attorney to argue in defence, that although his affidavit was false in the former sense, it was true in the latter. He swears, moreover, that he has not concealed anything for his own use, or to defraud his creditors ; and that he has not anything in action, either in his possession or under his control, in the State ; and in swearing that he “ has not conveyed or concealed anything for his own use, or to defraud his creditors,” he directly denies the particular fraud charged against him.</p> <p>It was not contemplated or required by the law, as set forth in Clay's Digest, (70-71,) that the arrested debtor should account here to his creditors for what he might have in another State. If they wish to pursue such property, they must do so in the State where it is (Croom v. Davis, 6 Ala.); and this is provided expressly in the Code (§2182); so that, according to either Clay's Digest or the Code, the affidavit is ample.</p>

Heard before the Hon. James B. Clark. Bill for specific PERFORMANCE. The complainant, Jas.

<p>1. When application is made for a continuance to enable plaintiff to retake the deposition of a witness, (who had stated, through inadvertence on his part or that of the commissioner, that another material witness for plaintiff was interested as a partner with him,) the court may, in its discretion,.continue the cause unless the defendant will consent that the other witness may testify ; and if the defendant elects to let him be examined, and the witness swears that he is not interested, in which statement he is sustained by the testimony of his confidential clerk, there is no error in his admission.</p> <p>2. when a party reads in evidence to the jury a 'deposition taken by his adversary, which the latter declined to offer, he thereby makes it his testimony, and it does not lie with him to say that any portion of it is illegal or incompetent.</p> <p>3. When the evidence of a custom is conflicting, it should be left to the jury to determine whether the custom is proved ; but where the only evidence is that of one witness, whose testimony, not restricting the custom to any particular time or place, tends to prove the law merchant to be otherwise than it really is, the court may instruct the jury that there is no evidence of custom before them.</p> <p>4. The law merchant cannot be proved by witnesses, but is matter of law for the court.</p> <p>6. Evidence of a custom held to be so vague as to the length of time it had existed, and so general and indefinite as to the place of its existence, as not, pritna, fads, to enter into and form a part of the contract sued on, so as to control its provisions as a particular usage of trade.</p> <p>6. The non-production by a witness of a letter spoken of by him, which he is required by the interrogatory to attach to his answer, does not justify any inference prejudicial to the party by whom his deposition was taken; its non-production after notice would only justify parol proof of its contents.</p>

Heard before the Hon. J. W. Lesesne. This bill was filed in March, 1853, by the appellant, Franklin Preston, an infant suing by his next friend, to redeem a tract of land, which had once belonged to… Held: in reference to the question whether the heir could plead statute of limitations to the debt which was in judgment against the administrator, and I know of no case in which it has been held that he could not.

<p>1. The appellee cannot insist on error in the ruling of the court below, allowing an amendment, when that ruling is not covered by the assignments of error.</p> <p>2. An action for an unlawful detainer cannot be maintained, either under the general statute (Clay’s Digest, p. 251) or under the special act applicable to Mobile (Pamph. Acts 1847-8, p. 99), against one who, “ within three years last past, unlawfully entered upon and took possession of” premises then in the plaintiff’s possession, “ and has since unlawfully kept and detained the possession thereof from him” : this remedy only lies against a tenant who holds over after the expiration of his term, or against one who obtains or holds possession by, from, under, or by collusion with such tenant.</p>

<p>1. The owner of a slave, having loft her in plaintiff’s possession, — telling him that, if ho never called for her, plaintiif’s wife was to have her, — afterwards died without calling for her, and made no disposition of her by his will: Held, that these facts were not sufficient to establish a gift, as the owner had never parted with his control or right of dominion.</p> <p>2. Although the donor’s subsequent declarations cannot be received to invalidate his previous gift, when once it is established ; yet, where the issue is whether he had parted with his dominion in favor of the donee, with whom he had left the slave, a letter subsequently written by him to the latter is admissible evidence for the purpose of showing that the latter was holding as his bailee merely.</p> <p>3. But evidence that the slave was the kept mistress of her owner, and that she had children by him, is irrelevant and inadmissible for the plaintiff.</p>

Tried before the Hon. Alex. McKinstby. This action was, commenced by summons and complaint, and was brought by Augustus Brooks “ to recover as auctioneer $200, being the difference between the price at which a negro was bid off by defendant, and the price brought at a resale made on defendant’s account.” The defendant pleaded, 1st, that lie never purchased from plaintiff the said negro alleged in his complaint; 2d, that the slave which plaintiff offered to sell Mm was…

<p>Appeal from the Circuit Court of Russell.</p> <p>Tried before the Hon. Ezeiciel PioiceNS.</p> <p>Trial op the right op property in slaves, between Geo. D. Hooper, plaintiff in attachment, and Loxla Edwards, claimant. It appears that the said Edwards was the deputy sheriff of Russell county in 1848-9, and lived within one mile of the defendant in attachment, Bryant S. Mangham, from whom he had hired some negroes for the year 1848, and that he had in his hands, as deputy sheriff, several executions against Mangham, one of which (in favor of one Crews) had been indulged j that on the night of the 25th of November, 1848, which was Saturday, said Mangham ran off with his property, and on the next day (Sunday) Edwards sent an agent after him, with general instructions to arrange and settle the said executions, and another small debt which Edwards had against him ; that one Adair, who also had a debt against said Mangham, accompanied said agent; that they overtook Mangham about sunset that evening, and the agent then purchased from him, for Edwards, the negroes now levied on, and agreed that Edwards should pay and satisfy the said executions in his hands, and also said Adair’s claim, to which the said Adair assented; and that Edwards ratified the contract on the return of his agent.</p> <p>The claimant, after having proved the existence of the debts against Mangham on which the executions were founded, and that he had paid all the claims except the execution in favor of Crews, offered to prove the conversation had between his said agent (Thornton) and said Mangham, “ which immediately preceded and led to the arrangement then made between them, containing admissions by Mangham of the debts which claimant was to pay with the negroes purchased of defendant, and a statement of defendant’s indebtedness and liabilities to claimant, which liabilities were the executions and claims above mentioned ; to which evidence the plaintiff objected, and his objection being overruled, he excepted.”</p> <p>“ The claimant further proved that, in the spring of 1848, about ten of the defendant’s negroes were delivered to him by the defendant, ■ to be held for him on hire for the year 1848; and at the time of the delivery, claimant and defendant spoke of a previous contract for the hire of said negroes from defendant to claimant for the year 1848 ; — witness being claimant’s overseer. To this evidence, so far as related to Mang-ham’s statement that he had hired them, plaintiff objected ; but the court overruled the objection, and plaintiff excepted.”</p> <p>“ The plaintiff then proved, by way of rebuttal, that the said Mangham, in the early part of the year 1848, owned, cultivated, and improved a large tract of land in Russell county ; and that the said land and negroes went into the possession of the claimant in March, 1848 ; and here stopped with his proof on this point. The claimant then introduced ,the deposition of one Heydenfeldt, to show a sale of the land above spoken of, and the hire of the negroes to claimant in 1848, by the said defendant.” This witness testifies, that he had in his hands, in 1848, as attorney of one Hurt, certain notes on said Mangham for collection; that Edwards, by arrangement between himself and Mangham, gave his notes to witness in place of Maugham's, and afterwards paid them in full; “ that Edwards became indebted to Mangham by the purchase from him of his land, and the hire for one year of his negroes and mules.” “The plaintiff objected to so much of the deposition of said Heydenfeldt, as speaks of a sale of land from defendant to claimant; but the court overruled the objection, and plaintiff excepted.”</p> <p>The court charged the jury, “ that, if the contract for the purchase of the negroes was made on Sunday, it was void, unless the evidence satisfied them that it was a case of necessity. The plaintiff contended, that, as neither the sheriff nor his deputy, the claimant, was liable on the Crews execution, there was no necessity that it should have proved a part of the consideration of the said contract, and so the whole contract was void as against plaintiff, and the same as to the defendant said Adair (?) But the court charged the jury, if a necessity existed that the claimant should, on that day, secure himself by then making the contract; and if the evidence authorized them to believe that the claimant thought, from the slaves having been in his possession when run off, that he might be made liable, or believed that good faith called upon him to secure that debt, — then its inclusion as part of the consideration of the contract did not render it void, though not liable therefor, nor for the Crews debt; that if Adair had a debt which he wished then paid or secured, and Mangham had not the money to discharge it, and Adair wished to have it secured in that way, this would not render the contract void. To which charges the plaintiff excepted.”</p> <p>All these rulings of the court are now assigned for error.</p>

<p>1. An appearance by the defendant merely for the purpose of moving to set aside the service of the writ, is not a waiver of any defect or irregularity in the service ; but if, after such an appearance, he takes any action in relation to the case which recognizes it as in court, disconnected from the motion, whether the motion is then pending or not, this -is a waiver of the defect or irregularity.</p>

<p>Appeal from the Circuit Court of Coosa.</p> <p>Tried before the Hon. Nat. Cook.</p> <p>Teial of the right of propertt between the appellant, as claimant, and the appellees, as plaintiffs in execution. The facts are stated in the opinion of the court.</p>

<p>Appeal from the Court of Probate of Sumter.</p> <p>MotioN to dismiss the appeal, and cross motion for a special certiorari to perfect the record.</p>

<p>1. When, an execution from a justice’s court is levied on land in default of personal property, a venditioni exponas, or order of sale, from the Circuit Court, is only the means of satisfying the justice’s judgment, and does not make it a judgment-of that court.</p> <p>2. The common law is presumed to exist in our sister States, in the absence of an averment to the contrary.</p> <p>3. By the common law, a justice of the peace had no civil jurisdiction, and his court was not a court of record.</p> <p>4. Therefore, in declaring on a judgment rendered by a justice of the peace in another State, the declaration is fatally defective on demurrer, if it does not affirmatively show that the justice had jurisdiction by force of a local statute.</p>

<p>Appeal from the Court of Probate of Limestone.,</p> <p>ON the final settlement .of the estate of Achilles Whitlock, deceased, which had been declared insolvent, the creditors-moved the court to charge the administrator de horns non with the value and amount of certain goods, which had been sold by him under the following circumstances : A judgment having been rendered against said Whitlock in his life-time, an execution was issued thereon on the 29th of April, 1846, which was returned “ no property found.” Whitlock died on the 9th day of February, 1847, and bn the 8th day of March thereafter' another execution was. issued on the- judgment, which was- levied by the sheriff on certain goods found, on said Whitlock’s premises, and in his possession at the time of his death. These goods were sold by the sheriff;,pn the 22d day of March and 24th day of April, and the proceeds of sale were paid over by him to the plaintiff in execution on the 6th and 24th days of April, without notice or objection from any person. One Allen Me Cargo qualified as administrator of Whitlock’s estate on the 15th day of February, 1847, and resigned on the 3rd day of April following, having done nothing towards the collection of the assets' of the, estate,; and afterwards, on the 29th day of May, 1847, the administration of the estate was committed to the said sheriff. On this state of facts the court charged the administrator with the proceeds of said sale, and interest thereon; to which ruling of the court he excepted, and which he now assigns for error.</p>

<p>Appeal from tbe Circuit Court of Montgomery.</p> <p>Tried before tbe Hon. JogN Gill Shorter.</p> <p>MotioN for a summary judgment by David Campbell against Charles R. Waller, for one balf tbe amount paid by said Campbell on a judgment rendered in November, 1851, in favor of Hugh Watson, for tbe use of William G. Waller, as guardian of Racbel E. Lewis (late Waller), against Annis Waller, late guardian of said Racbel, and said David Campbell, Charles R. Waller, and John R. Waller, as sureties of said Annis on her guardian’s bond; said John R. being alleged to be insolvent.</p> <p>The bill of exceptions states, that, on tbe trial of the motion, tbe plaintiff therein proved the rendition of the judgment against the obligors in the guardian’s bond, as alleged in the notice of motion, at the Fall term, 1851, of the Circuit Court of Montgomery, for $82 05 ; that the suit on said bond was founded on an annuaj settlement made by said Annis Waller in the Probate Court on the 5th of April, 1841, showing a decree against her for $59 88 ; that he had paid on this judgment $102 18, on the 16th January, 1853, which satisfied it; that said Annis Waller had died before the judgment, and said John R. Waller was insolvent at the time this motion was instituted. The said bond was dated April 5th, 1841, the same day on which the decree of the Probate Court was rendered.</p> <p>“ The defendant then proposed to introduce proof, showing that said Annis Waller, some years before the said settlement in the Orphans’ Court, was the guardian of said Rachel E., and had given the usual guardian’s bond, with said David Campbell and one Spear as her sureties, and that this bond continued in force until the making of the other bond above described; that while this first bond was in full force, said Annis Waller reported her accounts for allowance to the Orphans’ Court, showing that the said sum of $59 88 was the balance due to her ward on said account; that after giving forty days’ notice, said account was allowed, and the decree rendered on the 5th of April, 1841, which was the decree recited in tbe said judgment recovered against the sureties, in the second bond ; and that said Campbell, as such, surety on the first bond', was liable for the payment of said d,eere.e .before the making of the said second bond on which he, and said John R. and Charles R. Waller were sureties. This testimony was excluded by the court, and the defendant excepted,</p> <p>“And the defendant also proposed to prove, in connection with this proof, that said Campbell had been informed by the counsel of said’Rachel Waller that there was a mistake in bringing suit on the said bond of Annis Waller,-Campbell, John R. Waller'and Charles R. Waller, and that, unless the money was paid on the judgment as rendered, another suit, would be brought on the said bond of Annis Waller, Campbell and Spear ; and that said Campbell, after being so informed, paid said judgment. The court excluded this proof,, also, and the defendant excepted.”</p> <p>The judgment recites, that the parties came by attorney, and thereupon came also a jury, &c., “ who, being elected, tried and sworn well and truly to try the issue joined -between the parties, on their oath do say, that they find in favor of the plaintiff, and that the defendant is indebted to the plaintiff in the sum of §52 73 ; and it is therefore considered by the court, that the plaintiff recover of the’defendant the sum of $52 73, the amount so found to be due to the plaintiff..by the jury, together with the costs,” &c.</p> <p>The errors assigned are, first, that the court excluded the. testimony, as shown by the bill of exceptions ; 2d, in- render-. ing judgment on the verdict returned by the jury ; 3d, .in ren-, dering judgment without proof of the facts set forth in the notice ; 4th, that no judgment ought to have been rendered against appellant under the notice and motion ; and, 5th, that the court erred in rendering judgment against the appellant on the notice, motion, and facts shown in the record.</p>

Heard before the Hon. J. W. Lesesne. The bill in this case was filed by the appellee, as a judgment creditor of one Enoch Parsons, to redeem certain lands which had been sold under a decree in chancery. After the defendant had filed an answer, but before any order or decree was taken, the bill was dismissed, on complainant’s oVn motion, and at his cost, but without prejudice ; and this is now assigned for error.

’Appeal from the Circuit Court of Coffee. The record does not show the name of the presiding judge. MotioN “;to .establish a judgment, wherein Hansel Keel, for the use, of .

<p>Appeal from the Chancery Court of Tallapoosa.</p> <p>Heard before the Hon. James B. Clark.</p> <p>The original bill in this case was filed by Reuben Lanier, David 0. Neal, and William D. Powell, against .Green W. Hill and David Culberson, to obtain a rescission of a contract for the sale of certain lands, and an injunction against a judgment at law on the notes given for the purchase money. It alleges, that said Green W. Hill, as the administrator with the will annexed of John C. Webb, deceased, after having given notice by public advertisement, sold at public auction certain lands belonging to the estate of said Webb ; that he publicly declared, at the time of the sale, that he had full authority under the will of said Webb to sell said lands ; that complainants Lanier and Neal, believing and confiding in said declaration of Hill's, became the purchasers of said lands, and executed their notes for the parchase money, with their co-complainant Powell as surety; that Hill, as administrator of said Webb, afterwards made and executed to complainants a conveyance of the said lands, which is attached to the bill as an exhibit, and prayed to be taken as a part thereof ; that said Hill had no authority whatever to sell said lands, having never given bond as administrator of said Webb, and not having obtained an order of sale ; that complainants accepted said deed from Hill under the belief that it conveyed to them a fee-simple title to said lands ; that said Hill well knew that it was of no validity, and concealed that fact from them ; that he acted fraudulently throughout the whole transaction, and has fled beyond the limits of the State to escape the consequences of Ms fraud and illegal acts, leaving here no property of any kind whatever to respond in damages; “ that said Hill handed over or transferred said note to defendant Culbersonthat suit was brought on it, in the name of Hill for the use of Culberson, and judgment obtained, notwithstanding complainants attempted to set up their defence at law ; that complainants gave up the possession of said lands so soon as they discovered the want of authority on the part of Said Hill to make said sale, and that George 1). Hooper, who is now the administrator with the will annexed of said Webb, has obtained from the proper court an order to sell said lands, under which he has advertised them for sale.</p> <p>. A decree pro confesso, on publication, was taken against Hill. Culberson answered, averring that, before he purchased said note from Hill, he communicated with Lanier in regard to it; “and was informed by the latter that he had not then received Hill's deed for the land, but, when Hill executed a deed, defendant might consider it a good note, and if he traded for it he should be paid the amount of it at maturity, or words to that effect; ■ that respondent thereupon, on the strength of this promise, and ascertaining from said Hill his readiness to make the deed, purchased said note.”</p> <p>The chancellor dismissed the bill, because as he held, there was no allegation that complainants had obtained a conveyance, with covenants of warranty, from said Hill; and his decree is now assigned for error.</p> <p>1. The bill is fatally defective, for want of averments which are required of a vendee who seeks a rescission of his contract : there is no averment of Hill’s insolvency, or inability to respond in damages, and the allegation that he has fled the country is not sufficient; and there is no averment that complainants obtained a conveyance with covenants of warranty, and were ousted by superior title. — Cullum v. Branch Bank at Mobile, 4 Ala. ; Bliss v. Smith, 1 ib. 274 ; 7 Mass. 19 ; Freeman’s (Mich.) R. 209.</p> <p>2. Although the bill alleges fraud, the proof only shows an honest mistake, common to both parties, as to Hill’s authority to sell. The sale was made at public auction, under such circumstances as were sufficient to put the purchaser on his guard, and therefore the maxim 11 caveat envptor” applies.— Cullum v. Branch Bank, supra.</p> <p>3. Complainants do not show sufficient diligence on their part to entitle them to the relief asked. Six months after the sale elapsed before the conveyance was executed ; within that time they ought to have looked into the facts, and repudiated the contract, if necessary for their protection ; and failing to do this, the presumption is, that they elected to rely on the covenants of warranty. — 1 Dana 327 ; 1 Johns. Ch. 213 ; 2 ib. 519 ; Steele v. Kinlde, 3 Ala. 352 ; 2 ib. 108 ; 8 ib. 373 ; 7 ib. 7L</p> <p>4. Culberson having traded for the note, and paid a valuable consideration for it, on the faith of complainants' promise to pay it, he is a bona fide holder, and complainants are es-topped from settingup any defence against its payment, either at law or in equity. — Clements v. Loggins, 2 Ala. R. 514 ; McCravey’s Ex’r v. Remson, 19 ib. 430 ; Brewer v. Brewer & Logan, ib. 482 ,• Steele v. Adams, 21 ib. 534; 8 ib. 373 ; Greggs v. Woodruff, 14 ib. 9 ; Story’s Eq. § 203 ; 6 Vermont 529 ; 8 B. Monroe 559; 20 Conn. 563 ; 3 Barb. 222 ; 13 N, 475 j 14 Miss, 550 j § o, 258,</p> <p>5. There are several fatal variances between the allegations and proof. The bill alleges that the lands were purchased by Lanier and Neal, and that the conveyance was made to “ complainants,” who are Lanier, Neal and Powell; while the deed exhibited, and offered in evidence, was to Neal only.— This allegation goes to the substance of the contract, while the deed offered was the evidence of that contract; the proof, then, does not support the averment, and it ought not to have been received for any purpose. Again ; the bill alleges fraud, while the evidence only shows an honest mistake. The case certainly demands the strict application of the rule, so often laid down by this court and others, requiring the proof to conform to the allegations. — Freeman v. Swann, 22 Ala 106 ; Flake & Freeman v. Day & Co., ib. 182 ; Adams v. Garrett & Garrett, ib. 602 ; McKinley v. Irvine, 18 ib. 682 ; Owens v. Collins & Langworthy, 23 ib. 845 ; Gilchrist v. Gilmer, 9 ih. 985 ; Langdon v. Roane’s Admr., 6 ib. 518 ; Clement v. Kellogg, 1 ib. 330; Maury v. Maury, 9 ib. 211; Moffat v. Clements, 1 Scam. 384; Gres. Eq. Ev., m. p. 243-4; 4 Por. 306 ; Gibson v. Carson, 3 Ala. 421 ; Graham v. Tankersley, 15 ib. 634; Julian v. Reynolds, 11 ib. 960 ; Ansley v. Robinson, 16 ih. 793.</p>

<p>1. A judgment by default, against a defendant who was not before the court, purporting to be founded on an original attachment, which nowhere appears in the record, but which was prayed for and obtained (if at all) by the person for whose use, in the name of another as nominal plaintiif, the judgment was rendered, — is wholly irregular and erroneous, and cannot be aided by any intendments.</p>

<p>Appeal from the City Court of Mobile.</p> <p>Tried before the Hon. Alex. MoKinstry.</p> <p>MotioN to establish a bill of exceptions. In support of the motion, Mr. Robinson, of counsel for the appellant, submitted the affidavits of himself, Mr. Blount, and Mr. Chamberlain, who were attorneys for the appellant in the court below, in which they stated that the case (involving less than $20) was submitted to the decision of the court without the intervention of a jury, and was taken under advisement; that they frequently applied to the judge to know whether he had decided the case, and were informed by him that he had not; that they were in daily attendance on the court, and had no notice whatever that the case had been decided until more than twenty days after the rendition of the judgment, when they learned that an execution had already been issued on it; that they immediately prepared the bill of exceptions, (which is sworn to be correct,) and handed it to the judge for his signature, but he refused to sign it.</p> <p>Endorsed on the bill of exceptions, is the following certificate of Judge McKinstry:</p> <p>“ I certify that I do not think the attorneys of Mr. Stein are chargeable with negligence in not presenting their bill of exceptions. The case was taken by me under advisement, and no decision was publicly announced by me ; nor did I give Mr. Stein’s attorneys notice of having rendered the same, although the judgment was entered on the minutes of the court. But, as the bill was presented for my signature more than twenty days after the rendition of the judgment, I did not conceive that I had power to sign it.”</p>

Tried before the Hon. Geo. D. Shortridge. The record in this case is very defectiveit contains, 1st, a declaration in assumpsit, by John R. Chappell against Lewis Kennedy and James Merritt, on a promissory note for $215, the damages being laid at $200; 2d, an affidavit of the loss of the note on which the suit was founded, by a fire in Wetumpka; and, 3d, the judgment entry, which is as follows: “ This day came the parties, by their attorneys, and the defendants, withdrawing…

Heard before the Hon. J. W. Lesesne. This bill was filed on the 24th April, 1852, by St. John, Powers & Co. and John Henley, against the… Held: that the bill was well filed; that the defence set up by John G. Winter, as to his residence in this State, was not sustained by the proof, and, even if it were proved, could not avail him, because the grounds on which the attachment was sued out are not traversable ; that Moulton and Earley were not necessary parties to the suit;…

Heard before the Hon. J. W. Leseske. This bill was filed by Moses Waring, the appellee, against the heirs-at-law of Willis Lang, deceased, to obtain a divestiture of their legal title to a certain storehouse and lot in the city of Mobile, and to enjoin them from the further prosecution of an action at law to recover its possession.

Tried before the Hon. Alex. McKiNStry. Assumpsit by Robert C. Cunningham against Eliza Fon-taine. The declaration contained three counts, the first of which is the common indebitatus count for goods, wares and merchandise furnished by plaintiff to defendant at her special instance and request.

<p>1. When a scire facias to revive a suit is issued against several executors, and executed on all save one, there is no discontinuance in proceeding without him, if the record does not show that he ever qualified; and if the record shows that he died several terms before the trial was had, and that the cause was afterwards treated by all the parties as regularly in court, the irregularity (if any) is cured, and cannot avail on error.</p> <p>2. A railroad company, of which both plaintiff and defendant were directors, transferred to the former, by resolution of the board of directors, a quarter’s pay dues from the Postoffice Department on a contract for carrying th.e mail» (which contract was in defendant's name,) as collateral security for his endorsement of a note for the benefit of the company, which he subsequently paid ; and afterwards, by another resolution, transferred the same quarter’s pay to defendant for the purpose of paying other debts, which defendant accordingly paid : Held, that plaintiff might maintain assumpsit for money had and received against the defendant, to the amount paid on the note.</p>

Tried before the Hon. Alex. McKinstry. The declaration, which was in case, alleges that the slave of the plaintiff below, Marsh, was bound for a term of years to one Sadler, a bricklayer, to learn the trade ; that the defendant hired one Coxe, who was in the employ of Sadler, and was his agent, to do certain work near the furnaces and boilers of a building owned by defendant, and used as a cotton press, knowing that the building was unsafe to work in, and that while engaged…

<p>1. Where a part owner of a slave has possession, claiming only an undivided half interest, and acknowledging the title of the other part owner to the other half, his possession is not adverse', although “ he refused to deliver the possession to any one until his portion should be allotted to him.”</p> <p>2. The discharge of a levy, on account of the plaintiff’s failure to give a bond of indemnity when required by the sheriff, destroys the lieu on the property, and thus gives effect, as against a Subsequent levy, to a deed executed by the defendant while the execution was in the sheriff’s hands, but before it was levied.</p> <p>3. Where the claimant’s bill of exceptions shows an erroneous affirmative charge against him, the objection cannot be raised, to prevent a reversal in his favor, that the bill of exceptions purports to set out all the evidence in the cause, and does not show that the claimant proved the consideration of his deed from the defendant, although it was executed after the rendition of plaintiff’s judgment: that point cannot be raised in the appellate court, when no objection was made to the reading of the deed in the court below, and no charge asked in reference to the effect of this deficiency of proof upon the rights of the parties.</p>

<p>Appeal from the Chancery Court of Talladega.</p> <p>Heard before the Hon. E. D. Townes.</p> <p>The original bill in this case was filed by the appellant against Matilda M. King, Solomon Spence, David A. Calhoun and John Bradley, to enforce a vendor’s lien for the unpaid purchase money of land. It alleged, that the land was sold, in 1836, by one Jesse Dunn to said Bradley, for about $5,000, and a conveyance in fee simple executed by the vendor ; that Bradley gave his two promissory notes, for $1,000 each, to secure the payment of a part of the purchase money, which notes Dunn afterwards, for a valuable consideration, assigned to the complainant; that Bradley subsequently sold a part of the land to one William King, and took his two notes, for $1,000 each, for the payment of the purchase money ; that Bradley afterwards assigned King’s said notes to complainant, in exchange for the two notes which the latter held on him, and took up his own notes ; that complainant obtained judgments at law on King’s two notes, “ but cannot find assets to satisfy themthat King died in 1840, and Bradley after-wards conveyed the land to said Matilda King, who was the widow and executrix of said William King, and to her son John C. Calhoun, who was executor of said King ; that said defendants Matilda and John C. took the conveyance with full knowledge that the land was not paid for ; that said John C. Calhoun afterwards died, intestate, leaving his brother David A. Calhoun his only heir-at-law; that said Matilda was afterwards removed from the executorship of said King’s estate, and the defendant Solomon Spence was appointed his sole administrator ; that Spence was also appointed administrator of said John C. Calhoun’s estate, and had reported both estates insolvent.</p> <p>After Mrs. King had put in an answer to the bill, there seems to have been an order of reference to the master, to ascertain and report the amount due on complainant’s said judgments ; at least, the master’s report, which is next copied in the record, purports to have been made in pursuance of an order of reference, - but the order itself nowhere appears.— This report ascertains that" one of the judgments had been satisfied in full, and there was a partial satisfaction entered on the other, leaving a balance due of $427. Several supplemental bills were afterwards filed, the object of which was to have these credits on the judgments set aside, and the complainant remitted to his lien on the land for their full amount. The facts presented by these several bills, which are sustained by the proof, may be thus briefly stated :</p> <p>Executions were issued on complainant's judgments, against said Spence as the administrator of King, and were levied on several slaves. These slaves were claimed by Spence as administrator of said John 0. Calhoun, and also by said David A. Calhoun ; but the plaintiff indemnified the coroner to sell, and became the purchaser himself for the sum of $2,483, which constituted the said credits on the judgments. At the time of the sale, Spence gave public notice that he claimed the slaves as the property of his intestate John 0. Calhoun, and said David A. Calhoun also gave notice that he claimed them as his own, and would assert his right to them. Subsequently, Spence, as administrator of said John C. Calhoun, brought an action at law against complainant for the said slaves, and recovered a judgment against him for their full value; and said David A. Calhoun filed his bill in chancery against complainant, and obtained a decree against him for about $2,800 for his interest in the said slaves. Complainant, having paid off this judgment and decree, now seeks to be relieved of his purchase, and to be remitted to his lien on the land for the full amount of his judgments.</p> <p>The chancellor refused the relief prayed by the supplemental bills, holding that, as the complainant purchased at the coroner’s sale with full knowledge of the defect in the title to the slaves, he could not be relieved of his purchase in equity: and his decree is now assigned for error.</p> <p>1. There is an undisputed lien for the purchase money, to the extent of the sum due on the judgments described in favor of McCartney v. Spence, administrator of King. The question is, what sum is due ? and this question is not to be determined alone by reference to the fact whether the judgments are satisfied, or even extinguished, in contemplation of law ; for, if such is the case, and if in equity the debt will not be considered as extinguished, it will exist in its full force, and attended with its original incidents and liens.</p> <p>2. There was no satisfaction of record of these judgments, so as to conclude a court of chancery from looking into the fact whether there was a satisfaction of the judgments.— Conceding to a sheriff’s return full force, it is still only prima fade evidence, as to third persons, of the facts stated in it. — Gov., use &c., v. Gibson, 14 Ala.; Nolin v. Hamner, 22 Ala. 580; Gifford v. Woodgate, 11 East 297 ; Cator v. Stokes, 1 M. & S. 600 ; Phil, on Ev., vol. 5, p. 391 ; 8 B. Monroe 302.</p> <p>3. There is no satisfaction of record in this, case : there is a receipt on the record of the Circuit Court, purporting to be signed by the plaintiff in execution, for the damages on one of the judgments, and for a portion of the damages on another ; but this receipt does not prove itself, and if it was proven to be genuine, it does not, by being put on the record, ipso facto create a satisfaction. A satisfaction of record, and possessing the qualities of record evidence, is something more than a mere receipt, or return of a sheriff: it must be a matter which passes sub judice to have the effect mentioned.</p> <p>4. Conceding, for the Sake of the argument, that a court of law could not bo controlled by a court of equity, so far as to authorize the latter to set aside entries made on the records of the former ; still, cannot a court of equity examine into the effect of a receipt, on a judgment at law, and allow it to be explained, as it could any private receipt, and declare the debt to exist in the form of an equitable right or demand, although it could not be again restored to vitality and force as a judgment at law ? and if declared to exist in this form, to proceed, and enforce the liens attendant upon it? — McGehee v. Ellis & Browning, 4 Litt. 244. And it makes no difference that the purchaser of the property had notice of the defect in the title. — McLaughlin's Administrator v. Daniel, 8 Dana 182.</p> <p>5. Equity has jurisdiction to decree the re-payment of money to one who has paid it, in good faith, under a mistake, or for the benefit of a person whose duty it was to pay it, on the principle of substitution, and will place the person paying the money in the place of the creditor who received it, and enforce the obligation of the debtor to pay the debt in favor of such person. — McG-ehee v. Ellis, 4 Litt. 244. And a court of equity, where the demand is of an equitable nature, will, enforce it, in favor of a person who by Ms act ias extinguished a debt against another, if the latter by any act adopts or ratifies the payment. — See Poe, sheriff, v. Dorrah, 20 Ala. 291 ; Bray v. Howard, 7 B. Mon. 467. In this case, King's administrator adopts the payment endorsed on the execution by McCartney, and insists that it is a discharge ; so that, if King’s administrator did not, in fact, pay the debt, the person who did pay it, is entitled to recourse against him. And if the plaintiff, by mistake, or upon an insufficient consideration, entered a discharge upon the debt, when the defendant was not entitled to it, the debt still remains. — Pearson & Eantt v. Thomason, 15 Ala. 700.</p> <p>6. In this case, the executor of King, who preceded Spence in the administration, had returned under oath to the Orphans’ Court that the slaves levied on by the sheriff were the property of King’s estate, and had also made a fraudulent purchase of them, at his own sale as King’s property, and returned his purchase to the Orphans’ Court. Spence took no steps to correct the action of his predecessor, and left all of King’s creditors under the false impression that the property was still belonging to the estate, if Calhoun’s purchase was invalid, of which there could be but little doubt. At the sale of the property, Spence made no claim to the property, as belonging to Calhoun’s estate, of which he was also the administrator, but suffered it to be sold without objection. His conduct was calculated to mislead the purchaser at that sale, and he is estopped, in equity, from claiming either the property or its proceeds. — Stone v. Britton, 22 Ála. 543 ; 19 Ala. Bep, 430,</p> <p>7. Spence, as administrator of John C. Calhoun, made an election, after the sheriff's sale, to consider the slaves as the property of the estate of Calhoun, instead of King ; and on this election, he predicated an action at law, which resulted in the recovery of the whole value of the negroes by him.— This election was in direct opposition to what a court of equity would have required him to have done, at the instance of any person interested in the estate ; and by this means, he took the value of the negroes out of the hands of McCartney, who was the indemnitor of the coroner, McLane. Can Spence, in equity, claim the credit on the judgment, and thewalue of the slaves? — See McLane v. Spence, 11 Ala. 172; Same v. Same, 6 Ala. 898. Spence can claim neither the credit on the execution, nor the value of the slaves ; because the slaves never belonged to him as administrator of King or Calhoun.</p> <p>8. The maxim caveat emptor is, in effect, that the sale was made under such circumstances that there is no warranty.'— The purchaser takes the risk of defects of title, so far as the vendor is concerned. It operates as an estoppel upon the purchaser, to attempt to avoid the contract of purchase for defects of title ; but, like all other estoppels, there must be mutuality, and while the vendee is estopped to set up a defect of title at the time of sale, the vendor is also estopped from denying the validity of the sale. He simply says, “ I am not bound to defend the title as against third persons.” He cannot say so as to a title he held at the time of the sale, and afterwards attempts to enforce: he is bound not to set up such a title.</p> <p>9. This maxim only applies as between the parties to the contract, and to those in privity with them. A defendant in execution is not a vendor nor vendee of property sold under execution against him. He is passive: he has done and suffered nothing, which could create an estoppel for or against him.</p> <p>10. A person acting fraudulently cannot shield himself behind this or any other maxim of the law.</p> <p>11. The maxim 11 caveat emptor” does not apply to sales on a warranty. This is a sale on a warranty: where the sheriff is indemnified to make a sale, he is a warrantor of the title (Hodge v. Thompson, 9 Ala. 131) ; and the indemnitor stands in the shoes of the sheriff. If a stranger purchases at such a sale, he must have a good title. If the plaintiff in execution should purchase, why must he not have a good title ? He was compelled to indemnify the coroner to make the sale, or let it pass entirely. The law imposes no penalty on him for this act, but makes it a duty on the part of a plaintiff to save the officer from trouble ; and it is always the defendant's fault that a plaintiff is forced to such measures : if he would pay his debt, or even make a fair disclosure of his property, indemnities would not be needed ; and so it was in this case. What disadvantage, or loss, or contract, or understanding is it, to which a defendant in execution is a party, and which would enable him to say to the purchaser, whether plaintiff or a stranger, “You bought with notice,” or “There was no warranty in this case?” No one ever supposed that he would warrant the property.</p> <p>12. The very fact that there was a warranty at this sale is the reason why a court of equity will interfere at the instance of the plaintiff in execution, or even a stranger, and give relief as against the defendant in execution. — McGeheev. Bilis, 4 Litt. 244 ; Jones v. Henry, 3 ib. 421.</p> <p>13. The effect of the declaration of insolvency of the two estates of King and Calhoun, is not to give Spence, as the administrator, any rights superior to such as ho would have in the absence of such a declaration. It is not shown that there are any creditors of either estate besides McCartney. This is not a question between creditors, but between a creditor and the administrator or heirs of the estate. McCartney is the creditor, and the defendants claim the estate. Such a declaration is by no means conclusive as to the insolvency of the estate. — McGuire v. Shelby, 20 Ala. 456.</p> <p>14. It is the policy of the law to uphold and sanction judicial sales, and to give purchasers confidence in them. If such sales are to be mere traps for the unwary, they will become a curse to the parties interested in them. A sheriff, who fails to disclose at the sale a known defect of title, is liable, even to the plaintiff in execution, if he is a purchaser, for the whole value of his bid. — Bank U. S. v. Carroll, 4 B. Monroe 49 ; Commonwealth v. Dickinson, 5 ib. 508.</p> <p>There is no ground stated in the bill for the jurisdiction of this court: the remedy, if any, is to be had by application to the court whence the execution issued, to set aside the sales, and this remedy must be sought promptly. — Lamkin v. Crawford, 8 Ala. 159 ; Nolin v. Hamner, 22 ib. 581; 22 ib. 365 ; McGehee v. Ellis & Browning, 4 Litt. 247; Banks v. Spain, Litt. S. C. 451.</p> <p>Complainant shows by his bill, that he was cognizant of all the facts, and after knowing the facts he forced a sale by indemnifying the coroner to sell. If there was a mistake, it was a mistake of law, and will not avail him. If a man has knowledge of the facts, and acts presumptuously upon his knowledge of the law, though mistakenly, if not drawn into the mistake fraudulently, that is no ground for relief in equity. Priedly v. Sheetz, 9 S. & R. 161; Bank of United States v. Daniel, 12 Peters 32, 55-6 ; Hunt v. Rousmaniere, 1 ib. 15; 1 Story’s Eq., §§ 113, 116-20 ; Haden v. Ware, 15 Ala. 149.</p> <p>Here there was no fraud, no imposition, no undue influence, or surprise ; but a deliberate, settled, wilful determination to take the risk of his own conduct by complainant. It is, to say the least, a naked mistake of law, without admixture of any of the circumstances which justify the interposition of a court of equity. — See 1 Story’s Eq., § 110 ; and for exceptions to the rule, see § 120, et seg.</p> <p>This is not the ordinary case of a party resisting the payment of purchase money bid by him at sheriff’s sales, upon the ground that he has been deceived, or that he acquired no title, and that there was no consideration; but complainant satisfies the execution, receives the property and retains it, and yet asks that the price which has been paid for it shall be paid back, because the officer who sold it has been found liable for it in one action, and that it has been charged with the value of D. A. Calhoun’s interest in it, of both of which he had distinct and emphatic notice.</p> <p>The sale was upon sufficient consideration ; the uncertainty as to the right would enable the complainant to buy it in very low, and the transfer of the possession was enough to sustain the promise, and the more so to prevent a rescission of the contract after it had been executed. Adequacy of consideration will not be inquired into in the absence of fraud. — Parsons on Cont. 861-2 ; Livingston v. Byrne, 11 John. 566 mar.; Perry v. Williams, 4 Dudley 44.</p> <p>In all of the cases in which relief has been granted in this court, similar to the case made by complainant, it will be found that there was fraud or some act of the defendant in execution misleading or deceiving the purchaser, or that cases in which there was no such element of decision are based upon those in which it did exist. — See Lansing v. Quackenbush, 5 Cow. 38; McLaughlin v. Daniel, 8 Dana 182; McGehee v. Ellis, 4 Litt. 244; 3 Blaclcf. 293; 3 Litt. 428. 1</p> <p>If McCartney has any remedy, it is as a purchaser and against the defendant in execution, and not as an original creditor whose' lien for the. purchase money of the land is yet retained,, or an execution creditor whose debt has not been satisfied; but his present demand is a new debt from defendant in execution to him, arising out of and based upon the fact of his having paid off and discharged the debt of defendant in execution by the purchase of property which did not belong to defendant, and for which he has had to account to a third person. — 4 Litt. 244; 8 Dana 184. By the satisfaction of the executions the endorser was discharged, and he being discharged, the lien upon the land is gone. — Click v. Bass, 5 Ala. 363.</p> <p>The sheriff’s return of satisfaction is conclusive until set .aside in the Circuit Court. — Clarkev. Gary, 11 Ala.; C.&H. Notes to Phil. Ev., vol. 4, pp. 798-9 ; 3 Litt. 129-30.</p> <p>But it is insisted that the prevailing doctrine, and the correct one, is that the sheriff only sells the interest of the defendant in execution in the property sold by him under execution, and that all persons who buy at such sales buy at their own risk. “ Let the purchaser beware,” is the rule applicable to such sales.-^Worthington v. McBoberts, 9 Ala. 297; Perkins v. Winter, 7 ib. 867 ; Thayer v. Sheriff, 2 Bay 170 (cited 7 Ala. 870) ; Eriedly v. Scheetz, 9 S. & R. 156 ; The Monte Allegro, 9 Wheat. 616 ; 4 Gill <fe J. 491-2 ; 19 Yer. 325-6; 18 Yerm. 390; 10 Miss. 157; 2 Yerg. 394 ; 9 Ala. 300; 11 Wheat. 307; 4 Am. Com. Law Jour. 137.</p> <p>A purchaser cannot object to a sheriff’s sale a defect of title of which he had notice. — Eriedly v. Scheetz, 9 S. & B. 161.</p> <p>When the plaintiff in execution indemnifies the sheriff in levying, and purchases the property without paying the money, at a sufficient sum to cover his debt, it operates as a satisfaction of the execution, though in fact the property did not belong to the defendant, and the plaintiff was forced again to pay for it upon his bond of indemnity. — 4 Dudley 44; 2 Bailey 418; 5 Strob. 148; 4 Strob. Eq. 186; 9 Yerger 100.</p> <p>When plaintiff in execution bids off property of defendant at sheriff’s sale, the bid itself is payment. — Smith v. Godbold, 4 Strob. Eq. 186.</p> <p>Equity follows the law, and will not set aside a plain and settled principle of law upon the mere hardship of the case.</p> <p>Plaintiff in error cannot recover, either as purchaser or as plaintiff in execution, of the defendant in execution. There was nothing done by defendant in execution to induce him to buy; on the contrary, Spence, the defendant in execution, forbid the sale, and notified McCartney that the property did not belong to the estate of King. There is no privity of contract between McCartney as creditor, or as purchaser, and the defendant in execution, in the purchase of this property, and without this no indebtedness on the part of defendant in execution to complainant could originate. — Atkinson v. Par-mer, 2 Murph. (N. C.) Rep.; Abel v. Sutton, 1 Esp. 112; Williams v. Willington, 1 H. Bla. 82-3 ; Corbett v. Poilnetz & Wife, Durn. & East, 1 Term R. 17 to 21 mar.</p> <p>Moral obligation not sufficient to sustain an action, either at law or in equity. — Parsons on Cont. 358, 361.</p>

Clair. Heard before the Hon. E. D. TowNes. Held: that the complainant in the original bill was not entitled to any relief, as the doctrine “ caveat emptor applied to his purchase; but he retained Shahan’s cross bill, and ordered a sale of the lands under the trust deed to pay the second and third notes yet unpaid, and directed the surplus, if any, to be paid to said Shahan to…

<p>1. A writing in these words: “ Sir — At Mr. S.’s request, I have concluded to stand his security for the hire of two hoys, not exceeding $220, for the year 1847. Dec. 31, 1846,” — held a collateral guaranty which required notice of acceptance within a reasonable time, there being- no new consideration between the parties.</p> <p>2. In an action on a guaranty, where notice of acceptance is necessary to charge the guarantor, notice must be averred in the declaration; but the general allegation (“of all which aforesaid premises the said defendant,” &c., “then and there had notice”), when the declaration states facts on which it can operate, is sufficient.</p> <p>3. The declaration must also aver the terms of the credit given to the principal debtor, and his failure to pay.</p>

<p>1. In an action of unlawful detainer, whore the defendant, haying purchased, the premises at sheriff’s sale under execution against the plaintiff, received the possession from an under-tenant of plaintiff’s lessee after the expiration of the original tenancy, the record of the judgment under which the land was sold, and the sheriff’s deed for the premises, are not admissible evidence for the defendant, even “ to show that his possession -was lawfulsuch evidence goes to the merits of the title, and is therefore inadmissible. — Clay’s Digest 251, § 5 ; Code, § 2869.</p>

Tried before the Hon. Robert Dougherty. Trespass to try titles to a certain tract of land, between John Westwood and Theophilus Stephens, both of whom claimed under patents from the United States. At the January term, 1852, of the Supreme Court, a former judgment of the Circuit Court was reversed, and the cause remanded. — • •See 20 Ala, 275.

<p>1. Under the Code (§1888) an appeal does not lie to the Supreme Court, on an order of the Probate Court for the sale of real estate belonging to a decedent.</p>

<p>1. when letters of administration are granted to a sheriff virtute officii, and after his removal from the State ex parte proceedings are instituted against him to compel a settlement of his administration, all the preliminary orders of the court must show that he was proceeded against in that capacity ; especially when it is shown that, after the expiration of his term of office as sheriff, he took out letters of administration individually, and gave a new bond with new sureties.</p> <p>2. The objection may be raised for the first time on error assigned by the defendant, that the preliminary proceedings, in which he is described as “ administrator de bonis non,” are not sufficient to support a final decree, by default, against him as ‘‘ late sheriff of said county, and by virtue of his office as sheriff administrator de boms non," &c.</p> <p>S. And the fact that the estate had been previously declared insolvent on the report of the defendant, will not prevent him from raising the objection, when the record show’s that the estate was not otherwise treated as insolvent, and the final decree against him is in favor of a succeeding administrator de bonis non.</p>