Volume 27 — Alabama Reports

Tried before the Hon. George D. Shortridge. Abijah INGRAM, one of the appellants, having been, arrested on a charge of horse-stealing, and required to give bond for his appearance at the next term of the Circuit Court to answer the charge, thereupon entered into the required bond, with his co-appellants, Isbon Ingram and William W. Thompson, as bis sureties.

From the Circuit Court of Butler. Tried before the Hon. C. W. Rapier. The appellant (George Mickle) was indicted in the Circuit Court of Conecuh, at its Spring term, 1855, for larceny from a dwelling-house; and on his- application tk'e venue was changed to Butler county.

Eroji the Circuit Court of Bibb. Tried before the Hon. Robert Dousherty. The appellant, Noah Smitherman, and one Tempe Manerd, a free mulatto woman, were indicted at the Fall term, 3,850, of the Circuit Court of Bibb, for living together in adultery; the indictment containing but a single count.

<p>FROM the City Court of Mobile.</p> <p>Tried before the Hon. Albs. McKihstry.</p> <p>The indictment in this case, which was found at the special May term, 1855, of the City Court, was as follows</p> <p>“ The grand jury of said county charge, that, before the finding of this indictment, A. M. Salomon set up, or was concerned in setting up, or carrying on a lottery, without the legislative authority of this State, against the peace,” &c.</p> <p>The bill of exceptions states, that the defendant, at the trial, “moved to quash the indictment, 1st, for want of certainty ; 2dly, because it should have set forth the name of the lottery, or so described the lottery, if the name was unknown, as to have enabled the defendant to prepare his defence ; and, 3dly, because it is insufficient. This motion was refused, and the defendant thereupon excepted.”</p> <p>“The proof was, that the defendant had sold Maryland lottery tickets, Havana lottery tickets, and Georgia lottery tickets ; but there was no proof of his connection with said lotteries, or either of them, except that he vended the tickets. The court charged the jury, 1st, ‘If yon believe that defendant is the agent of the persons carrying on either of the lotteries testified to, the State has made out its case’; 2dly, ‘ If you believe that the defendant is shown to have been engaged in the business of selling lottery tickets of a lottery to be drawn, it would amount to being concerned in carrying on such lottery/ To these charges the defendant excepted, and asked the court to charge the jury, that selling lottery tickets alone, or buying and selling lottery tickets, does not constitute the. offence of being concerned in setting up or carrying on a lottery; which charge the court refused, and the defendant excepted.”</p> <p>These several rulings of the court are now assigned for error.</p> <p>1. The mere fact of being the agent of a person who carries on a lottery out of the State, is not a violation of the statute. Tates & McIntyre v. O'Neale &'Smith, 3 Gill & J. 253. The charge would seem to apply to any agency, though it had no relation to a lottery.</p> <p>2. The mere act of vending tickets in a foreign lottery is not an offence against the statute. — Mount & Wardell v. Waite, I Johns. 440. The statute is penal, and cannot be extended by construction. Selling tickets is a different thing from carrying on, or being concerned in carrying on the lottery : one may sell tickets, and yet have no concern in carrying on the lottery. Again, the statute only relates to lotteries in this State. — See Smith’s Commentaries on Statutes, §§ 143, 146, 747 ; Scribner and Barker’s cases, 2 Gill & J. 246.</p> <p>3. To show error in the first charge, see 21 Ala. 9.</p> <p>1. It was not necessary for the indictment to allege that the lottery was within this State, nor that it should.be specified by name. — Commonwealth v. Clapp, 5 Pick. 41; Commonwealth v. Hooper, ib. 43.</p> <p>2. The prohibition of the statute extends to all lotteries not authorized by a law of this State, or of the United States. Commonwealth v. Dana, 2 Mete. 338; The People v. Stur-devant, 23 Wend. 420 ; Hunt v. Knickerbacker, 5 John. 332.</p> <p>3. The selling of tickets in lotteries not authorized by the laws of this State, is a participation in the carrying on of such lotteries, and therefore indictable. In the commission of crimes, a party is guilty either as principal or accessory ; but in misdemeanors (as in treason) there are no . accessories —all are principals.- — 1 Chitty’s Criminal Law, p. 261 ; 1 Archb. (by Waterman), pp. 11 to 17 ; 3 Pick. 29 ; 2 B. Mon-. 417 ; 3 Wash. 0. 0. R. 238. Whatever constitutes one an accessory before the fact in a felony, renders him liable as a principal in misdemeanors. — State v. Westfield, 1 Bail. 132 ; 12 Wheat. 415. Boots kept in relation to proceedings respecting a lottery, have been held materials íor a. lottery.' — -Commonwealth v. Dana, supra. No action could be maintained on a contract made for the sale here of tickets in a lottery not authorized by our law. — 5 Johns. 326 ; 2 A. K. Marsh. 181 • ib. 209.</p>

<p>Eboh the Circuit Court of Marengo.</p> <p>Tried before the Hon. Robert Dougherty.</p> <p>This indictment was found at the Fall term, 1854, against Thomas J. Dale, Berry Q-. Underwood, Edward F. Martineer, and "William Mobley, and was in the general form allowed by the Code. Mobley was not taken, and a nolle pros, was entered as to Martineer; the other two defendants were tried jointly, and were convicted. The bill of exceptions states, that the State proved, on the trial, “that the defendants played cards in the said county of Marengo, within twelve months before the finding of the indictment, in' a room used and occupied solely by defendant Dale as a sleeping room; that said room was one of three rooms in the second story of a house in the town of Demopolis ; that said house was rented at the time by one Martineer, and said room in which the playing took place had been rented by said Martineer to said Dale, who, at the time of said playing, was occupying it. It was in proof, also, that said Martineer used the lower story of said house as a family grocery ; that in said house he kept and sold spirituous and vinous liquors, but not by retail; and that the playing took place when he so kept the house, and sold vinous and spirituous liquors, &c. On this state of facts, there being no conflict in the proof, the court charged the jury, that, if they believed the evidence, they must find the defendants guilty ; to which charge the defendants excepted,” and they now assign it for error.</p>

Eeom tbe Circuit Court of Butler. Tried before tbe Hon. C. W. Rapier. This indictment, which was found at the Fall term, 1854, was in the general form prescribed by the Code (§ 1059) for “ retailing spirituous liquors without a license.” On the trial, the State introduced evidence “ tending to show that the defendant retailed in the town of Greenville in said county, between the 24th March, 1854, to within a few days of the Fall term of the Circuit Court.

Feom the Circuit Court of Benton. Tried before the Hon. Thomas A. Walker. The appellants, Frank, Jerry and Trussvan, with four other slaves, were indicted at the Spring term, 1855, of the Circuit Court of Benton, for the murder of another slave named La Fayette, otherwise called Fayette, and were tried at the same term.

Tried before the Hon. George D. Shortridge. Soike facias on a forfeited recognizance, against Henry S. Brantley and his sureties, of whom the latter only were served with process. The sureties appeared, and filed seveu special pleas in answer to the scire facias, of which the second plea was as follows : “ 2.

Eeom the Circuit Court of Barbour. Tried before tbe Hon. Nat. Cooe. The appellant and three other persons were indicted at the January term, 1854, of the Barbour Circuit Court, for gaming; the indictment being in the general form allowed by the Code. — See Form No. 69, p. 707.

Tried before the Hon. EdmüNd W. Pettus. This indictment charged, that the defendant, James Powell, “ before the finding of this indictment, sold, gave, or delivered to a slave named John, belonging to Berry Pippin, vinous or spirituous liquors, without an order in writing, signed by the overseer or master o.f such slave, specifying the quantity to be sold, given, or delivered; against the peace,” &c. The bill of exceptions states that “ the evidence tended to show that the…

Tried before the Hon. G-eorge D. Shortridge. This indictment was found at the August term, 1854, and was in the general form allowed by the Code (§ 1059.) On the trial, as the bill of exceptions states, “ the State proved, by one Matthew Patton, that in the month of July, 1854, he bought a drink of whiskey from the defendant, and paid him ten cents for it; and that said whiskey was so bought in the town of Elyton, in the county of Jefferson.

Tried before the Hon. Thomas A. Walkes. The appellee (James E. Phelps) was arrested under the warrant of the mayor of Huntsville, on a charge of fighting, within the corporate limits of the town, and was fined thirty dollars.

Tried before the Hon. Ales. McKihstry. This action was brought (under the Code) by the mayor, aldermen and common council of the city of Mobile, against Claude Beroujohn and the sureties on his official bond as city sexton.

Heard before the Hon. E. D. TowNES. . The original bill in this case was filed by John Mosely and William Mosely, in March, 1841, and an amended bill was filed in March, 1851.

Tried before tbe Hon. Alex. McKinsery. This was an action (under tbe Code) on a policy of insurance on 198 bales of cotton, shipped from Mobile to New Orleans, on board of tbe Helen ; and tbe. only… Held: has no influence on the case at bar, further than to illustrate the principle, that at all events, and whether the law be as ruled in England or America, we were bound to receive the goods which were uninjured.

Heard before the Hon. Wade Keyes. This bill was filed by John Burden, the appellant, to enjoin the defendant’s diversion of the waters of Bayou Chataqne (or Three-mile Creek) from complainant’s mill.

JOHN E. Moore. DetiNüe for a slave named Eve, which the plaintiff claimed under the will of his father-in-law, Nathan Saunders, deceased, who bequeathed the mother of said slave to his wife, Mary Saunders, during her life or widowhood, with remainder to his daughter Elizabeth, who is now plaintiff’s wife ; while the defendant claimed under a purchase from said Mary Saunders, during her lifetime, and while said negro was'in her possession with the assent of her husband’s…

Heard before the Hon. James B. ClaRK. This bill was filed by Franklin G. Kimball, the appellant, as administrator de bonis non of John C. Sims, deceased, against Washington Moody, the appellee, as administrator de bonis non, cum testamento annexo, of Edward Sims, deceased.

Tried before tbe Hon. Alex. McKinstry. Action on the case by Isaac Picard against appellants, to recover damages for tbe wrongful and vexatious suing out of an attachment against him, on tbe ground-that he bad moneys liable to satisfy bis debts which be fraudulently withheld.

<p>Appeal from the Circuit Court of Cherokee.</p> <p>Tried before the Hon. Thomas A. Walker.</p> <p>This action (William E. Jordan v. William F. Owen) was commenced in September, 1854, and was founded on an open account for goods, merchandise, and chattels sold by plaintiff to defendant, and money paid for him and at bis request; the total amount claimed being §165. The defendant pleaded, in short by consent, payment, set-off, and the statute of limitations, with leave to give in evidence any matter which might be specially pleaded.</p> <p>On the trial, as the bill of exceptions states, “ the plaintiff’s counsel proposed to prove by the plaintiff himself, on oath, that he had sold and delivered various articles to the defendant, comprising the account sued on, and the price of the same ; having first showed that he had given more than five days’ notice to the defendant of his intention to establish the demand sued on by his own oath. The court, by the consent of both parties, allowed the plaintiff to be first sworn as to the truth of the facts which he proposed to prove, before any denial of the same on oath was made by the defendant. The plaintiff then swore', that he sold and delivered to the defendant, in ,1852, one cow and calf lor §15,00, another cow and calf for §18,00, a third cow and calf for §20,00, one yoke of oxen for §40,00, twenty pounds of pork for §1,20, and six hundred and fifty ears of corn for §3,25; that he also sold and delivered to the defendant, in 1853, one plow-rod worth 35 cents, one pound of bluestone worth 25 cents, one pair of shoes worth §1,60, two bushels of rye worth $1,50, and ninety-one pounds of beef at §2,57 ; and that in 1854-, he paid John Jones, as surety for said defendant, $73,44, debt, interest, and costs. Plaintiff’s counsel then closed his examination of plaintiff, and defendant cross-examined him as to several of said items, The defendant was then introduced, and, after being sworn, was asked, whether he denied upon oath the truth of the facts stated by the plaintiff; to which he answered, that a portion'of the plaintiff’s statement was true, and a portion untrue. He was then asked, what portion was true, and what untrue ; and answered, that the cow and calf charged at $20,00 in 1852 was never sold and delivered by plaintiff to him, that the pork was only $1,00 instead of $l,20t that the corn charged at $3,25 was sold at $1,95, that the plow-rod and bluestone mentioned by plaintiff were never sold and delivered to him, and that the balance of plaintiff’s statement was true. The defendant’s counsel then asked him this question, ‘Is it true that you were indebted to the plaintiff at the commencement of this suit, for any of the articles sworn to by him’ ? The plaintiff objected to this question, because it was illegal and tended to elicit illegal evidence ; but the court overruled the objection, and allowed the question ; and to this the plaintiff excepted. The defendant answered, that he denied that he owed the plaintiff anything ; to which answer the plaintiff excepted, and moved the court to exclude it, but the court refused to do so, and the plaintiff excepted. The.court then, upon this state of facts alone, and against the plaintiff’s objection, excluded from the jury all the statements of both plaintiff and defendant; and thereupon, to the exclusion of said plaintiff’s statements, plaintiff excepted.”</p> <p>These rulings of the court are now assigned for error.</p> <p>that the defendant should have been confined to a denial of the facts sworn to by the plaintiff. — Bennett v. Armstead, 3 Ala. 325 ; Yar-borough v. Hood, 13 ib. 176; Ivey v. Pierce, 5 ib. 374; Hayden v. Boyd, 8 ib. 323. The truth of the defendant’s testimony is only reconcilable wjth the idea that the account, once due, had been discharged by payment or set-off; and he could not show such a discharge by his own oath. — Bennett v. Arm-stead, supra.</p> <p>insisted, that the substance and effect of the facts to which the plaintiff swore, was, that the defendant owed him a certain amount at the commencement of the suit; and that therefore the defendant might deny that fact in express terms.</p>

Tried before the Hon. Ohaeles W. Rapieb. Held: that a deed of trust is void against a subsequent judgment creditor, unless recorded within tho limited time. — Wallis v. Rhea & Ross, 12 Ala. 646 ; Bradford v. Dawson & Campbell, 2 ib. 203; Cummings & Cooper v. McCullough, 5 ib. 324; Ohio Life Ins. Co. v. Ledyard, 8 ib. 866; Chamberlain v. Adams, MS. opinion by C. J. Dargan. 2.

Heard before the Hon. Wade Keyes. This bill was filed by the appellants, (Pearly S. Gerald, and Camilla, his wife,) to protect certain slaves, in which Mrs. Gerald claimed a separate estate, from sale under execution at law, at the suit of John McKenzie against Justus Wyman.

Tried before the Hon. George D. Shortridge. Assumpsit by Reuben Crutcher against the appellants, as partners, on a promissory note for $1681 68. The defendant Cordle, who alone defended the action, filed interrogatories under the statute to the plaintiff, touching the execution of the note declared on and other matters; and the plaintiff filed his answers thereto within the prescribed time.

Heard before tbe Hon. Wade Keyes. This bill was filed by Daniel McRae, tbe appellee, as a judgment creditor of Thomas M. Hill, tbe principal defendant. Held: used, and managed by him, the said William B. Lott.

Heard before the Hon. James B. Clark:. This bill was filed by John 0. Sims against the administrator of James A. McEwen, deceased, to enforce the specific execution of a parol contract.

Heard before the Hon. A. J. Walker. This bill was filed by Charles Spoor, as a judgment creditor of one Lewis J. Davis, against the heirs-at-law and administrator of John Phillips, deceased, to redeem a tract of land, lying in Macon county, which had been sold under execution at law against said Davis, and purchased by said Phillips.

Tried before the Hon. Thomas A. Waleek. Detinue by the appellant, an infant who sued by his next friend, to recover a negro woman, named Amanda, and her children, whom he claimed under the will of his grandfather, Joseph Cook, which was duly admitted to probate in Davidson county, Tennessee, in February, 1841; while the defendant derived title by purchase for valuable consideration from one Isaac Rutland, who was regularly appointed plaintiff s guardian in said county of…

<p>Appeal from the Circuit Court of Coffee.</p> <p>The record does not show the name of the presiding judge.</p> <p>ACTION (under the Code) by Alfred Holley against Henry A. Younge, on a promissory note for $1,000, executed by the defendant, dated September 28, 1851, payable to the plaintiff or bearer on or before the 1st January, 1851. The defendant pleaded, 1st, non assumpsit; 3d, payment; 4th set-off; 5th, pendency of another action, commenced prior to this suit, between the same parties, and for the same subject-matter ; and the second plea was as follows : “ That defendant made the note sued on for lands, and obtained deed from plaintiff with covenants of warranty against all incumbrances ; that at the time of the purchase and execution of said deed, the original purchase money due for said lands was unpaid, and after-wards the vendor filed his bill in chancery in this district, against said plaintiff, and obtained a decree condemning said lands to the lien of the vendor for said unpaid purchase money ; that said lands were sold under said decree by the register in chancery, and defendant became the purchaser, at about $300 ; that said plaintiff was a party to the said proceedings in chancery, condemning said lands as aforesaid ; that defendant has paid the $300, and had paid the same prior to the commencement of this action.”</p> <p>The plaintiff joined issue on the first, third, and fourth pleas, and demurred to the second and fifth. The grounds of demurrer specified to the second plea were, “ that it does not set up a legal defence to plaintiff’s action, or any part of it; that said plea offers to set off against plaintiff’s note an action sounding in damages merely ; and that said plea sets up no request by the plaintiff to the defendant to pay said $300.” And the grounds of demurrer to the fifth plea were, “that it sets up matter in bar of plaintiff’s action, which could only bo pleaded in abatement of the same ; that it is a plea in abatement, put in after the defendant had pleaded in bar; that it is a plea in abatement, pleaded with pleas in bar ; and that the matters set up in said plea are insufficient to bar plaintiff’s action.”</p> <p>The court overruled both these demurrers, and the plaintiff then filed two replications to the second plea, which were as follows : “ 1st, That said defendant, at the time of the execution of said deed, in said plea mentioned, agreed with plaintiff to pay said incumbrance in said plea mentioned, and that he would not hold plaintiff responsible for said incum-brance in consequence of the low price he was to pay for said land, and said defendant was to take said land, subject to said incumbrance, for the original purchase money claimed by plaintiff in his said complaint” ; and, 2d, “ That said deed of warranty mentioned in said plea was obtained by defendant from plaintiff, by his fraudulently representing to plaintiff that said deed should never be used against him, but was executed solely for the purpose of getting the Rimmies out of possession of said-land, when, in fact, defendant is using said deed in this suit, against plaintiff, contrary to his said representations.”</p> <p>The defendant demurred to these replications, “ upon the ground that they are contradictory of said deed, and are not alleged' to be in writing; “ because the facts in said replications do not amount to a defence in law to said matters specially pleaded ; and because the same is no answer to said plea.” The court sustained the demurrer, and the plaintiff then took issue on said pleas ; and on the trial he recovered a verdict and judgment for $839 *11, from which he prosecutes this appeal, and here assigns for error the rulings of the court on the several demurrers, as above stated.</p>

<p>Appeal from the Circuit Court of Picfcens.</p> <p>Tried before the Hon. Edmund W. Pettus.</p> <p>ACTION (under the Code) on’ a promissory note for $325, executed by. Jesse W. Bryan, William H. Davis, and John M. Sprowl, dated January 2, 1854, and payable to “Benjamin E. Wilson, noble-grand of Porter Lodge No. 16,1. O. 0. F. ”, on the first day of January, 1855, The summons and original complaint were in the name of “ Tandy P, Duncan, noble-grand of Porter Lodge No. 16, of the Independent Order of Odd Fellows, in Carrollton, Alabama”, who was alleged to be the successor in said office of said'-Benjamin F. Wilson; but a demurrer being sustained to said original complaint, and leave given to the plaintiff to amend his complaint, a new complaint was filed in the name of said Wilson.</p> <p>The defendants pleaded seven pleas, of which the first was the general issue, and the others were as follows :—</p> <p>(< 2. That plaintiff is not the party really interested in said note mentioned in said complaint; and this they are ready to verify,” &c.</p> <p>“ 3. That said note was given for money belonging to the widows and orphans’ fund of Porter Lodge No. 16, of the Independent Order of Odd Fellows, which money was lent by the noble-grand of said lodge to said defendant Jesse W. Bryan, without authority so to do, and contrary to the constitution and by-laws of said lodge; and this they are ready to verify,” &c.</p> <p>“ 4. That said Jesse W. Bryan was indebted to the widows and orphans’ fund of said lodge, in said county, by note for the sum of §200 ; that said lodge authorized its secretary to take a new note for said debt, upon the payment of the interest thereon by said Bryan; that said secretary, without any authority, included in said note the further sum of $125, which the said Bryan, as treasurer of said lodge, was- indebted thereto, on account of said fund ; that by the constitution and by-laws of said lodge, of force at the time, the said secretary was not authorized to take a new note for said $200, and at the time said note sued on was taken, said widows and orphans’ fund was under the exclusive control and management of a committee, appointed by said lodge, who alone were authorized to lend said fund, and to take a new note therefor; and that said committee never received, nor authorized the receipt of, either of said notes, and never lent the money for which either was givon ; and this they are ready to verify,” <fcc.</p> <p>“ 5. That said note was given for a debt, or debts, due from said Jesse W. Bryan to said lodge, under a resolution of said lodge, authorizing its secretary to receive the same, subject to the future action and approbation of said lodge; that said note was never delivered to, nor accepted by said lodge, nor was the receiving of the same by said secretary ever approved by said lodge, nor was there ever any action of said lodge, receiving said note, or accepting the same ; and this they are ready to verify,” &e.</p> <p>“ 6. That said Jesse W. Bryan was indebted to said lodge, by note for the sum of $200, and as treasurer of said lodge in the sum of $125, upon his bond as such treasurer to said lodge; that said lodge passed a resolution, authorizing its secretary to extend said debt of $200, if the said Bryan would pay the interest thereon, and give a new note with security, which new note was to be subject to the future action and approval of said lodge ; that the note sued on was given to extend said debt of $200, and said secretary included in it said sum of $125, without any authority so to do, which note, after being signed by said defendants, was delivered by said Bryan to said secretary; that said note has never been delivered by said defendants, nor by said secretary, to said lodge, nor has said'lodge ever accepted or had possession thereof, nor approved the same or the taking thereof; that said note of $200 against said Bryan is still held by said lodge, unsatisfied and uncanceled ; that the liability of said Bryan, upon his said bond as treasurer of said lodge, for said sum of $125, still remains, and is unsatisfied and undischarged; and that this action was not commenced by authority of said lodge; and this they are ready to verify,” &c.</p> <p>tltl. And said defendants Wm. H. Davis and John M. Sprowl, for separate plea in this behalf, by leave of the court pleaded, say actio non, because they say that said Jesse W. Bryan, before the making of said note mentioned in said complaint, was indebted to said lodge in the sum of $325 ; that said note was given for said debt of said Bryan, but does not express that such was the consideration thereof; and so the said Davis and Sprowl say, that said note, as to them, is void by the statute of frauds; and this they are ready to verify,” &c.</p> <p>The plaintiff demurred to all these special pleas, and assigned the following grounds of demurrer to each :—</p> <p>To the second plea, — “ 1st, because it does not allege or state any fact, nor aver that said note has been transferred, nor aver to whom said note belongs, or who has an interest therein; and, 2d, because said plea, in fact, is a plea in abatement, and is not sworn to.”</p> <p>To the third plea, — “ 1st, because said plea is no answer to the complaint; 2d, because it is immaterial to whom said money belonged, or whether it was loaned by the plaintiff with or without the authority of said lodge; 3d, because there is no averment that said lodge had any corporate existence, or that said lodge had any authority to adopt a constitution or by-laws.”</p> <p>To the fourth plea, — “ 1st, because there is no averment in said plea that said lodge has any corporate, existence ; and, 2d, because there is no averment that said lodge, or the committee under whose control said widows and orphans’ fund. is alleged to be, refused to accept the same, or dissented from the action of the secretary in that behalf.”</p> <p>. To the fifth plea, — “ 1st, because there is no averment in said plea that said lodge ever disapproved the action of said secretary in taking and receiving said note; 2d, because there is no averment that said secretary did not hold the note as the agent of said lodge, or that said lodge ever in any way dissented from the action of said secretary in that behalf.”</p> <p>To the sixth plea, — “ 1st, because there is no averment that the secretary in any way accepted (exceeded ?) his authority in taking said note sued on ; 2d, because there is no averment that said lodge in any way dissented from, or disapproved of, the action of its secretary in that behalf; 3d, because there is no averment that said secretary is not the agent of said lodge to hold said note ; and, 4th, because there is no averment that said lodge claims or seeks to enforce the liability of said Jesse W. Bryan, either on said note for $200, or on his bond as treasurer.”</p> <p>To the seventh plea, — “ 1st, because there is no averment that there was not any new consideration for said note; and, 2d, because there is no averment that the time of payment was not extended.”</p> <p>The court sustained all the demurrers, and thereupon the defendants withdrew their first plea, and refused to plead over; and judgment was accordingly rendered for the plaintff.</p> <p>The errors now assigned are, 1st, in allowing the complaint to be amended by striking out the name of Duncan and inserting the name of Wilson; and, 2d, in sustaining the demurrers to the several pleas respectively.</p> <p>1. The case of Leaird v, Moore, decided at the present term, settles beyond question that the court committed an error, in allowing Duncan's name to be struck out as plaintiff» and Wilson's to be substituted. In that case exception was taken to the allowance of the amendment, but in this none was taken. The fact, however, that no exception was taken, cannot make a 'difference between the two cases; for it is a rule, that whenever the court acts against a party, in invitum, and the record shows that the court erred in doing so, no exception is necessary to enable the party injured to insist upon the error in this court. — Carter v. Pickard, 11 Ala. 673. In this case the court gave «leave to amend, as part of the judgment on the demurrer, without being asked for leave. No exception to this erroneous judgment was necessary, according to the case cited; and no exception being necessary, pleading to the amended complaint can no more cure the error than it did in the case of Leaird v. Moore. Allen v. Harper, 26 Ala. 686, is not like this case. In that case, there was a trial and verdict, without objection to the want of a declaration. The court did not, mero motu, act against the party, as it did in this case.</p> <p>2. The second plea was a good plea in bar. No one but the party really interested had a right to sue on the note.— Code, § 2129. Under the general issue, at common law, the defendant had a right to show, that the plaintiff had no right to maintain the action. — Bryant v. Owen, 2 Stew. &Port. 134; 1 Saund. on PI. <& Ev. 142, 152 and 153, top pages. Under section 2237 of the Code, the defendant may plead specially 'any matter of defence. The case of Agee v. Medlock, 25 Ala. 281, was upon an endorsed note, and was decided without reference to the provisions of the Code, above cited. This action is not upon an endorsed note.</p> <p>3. The third plea is good, as a plea of want of consideration. For, if the noble-grand had no authority to lend the money, the defendants were liable for it to the party to whom it belonged ; and a recovery by the plaintiff, and a satisfaction of the judgment by the defendants, would not relieve them from the liability. — Hunter v. Field, 20 Ohio R. 340 ; Sowles v. Sowles, 10 Term. 181; Bryan v. Philpot, 3 Ired. 467.</p> <p>4. The fourth plea is good for the same reason; and for the further reason, that as the secretary had no authority to include the $125 in the note, there was a want of consideration as to that amount.</p> <p>5. The fifth plea is good, because, until the lodge approved or accepted the note, the debt against Bryan still subsisted, and, consequently, there was no consideration for it, until such acceptance or approval. Indeed, the note could have no binding validity at all, until the lodge accepted it. — Crops v. Bealle, 5 Eng. Law & Eq. Rep. 408 ; Capps v. Smith, 3 Scam. 177; .Denniston v. Bacon, 10 Johns. R. 198.</p> <p>6. The sixth plea is good, as a plea of want of consideration. The note being given to extend Bryan’s debt to the lodge, subject to the approval of the lodge, had no validity until it shoiild be accepted by the lodge, and Bryan’s debt canceled. If the consideration is sufficient as to the $200, it is not as to the $125. Consequently, the plea is good as a plea of partial want, or failure of consideration. If Bryan’s debts to the lodge are still held against him, and the cancellation or extension of these debts be the intended consideration of the note, then there is no consideration at all, — especially as the note has never been accepted, nor acted upon, nor approved by the lodge, in accordance with its own resolution. There can be no doubt that the sixth plea presents a good bar to the action. — See the authorities previously cited.</p> <p>7. The seventh plea is also good, under the new statute of frauds. — Code, § 1551.</p> <p>1. Pleading to the amended complaint, without saving any objection to its allowance, was a waiver of the irregularity, and the point cannot be raised here for the first time. — Allen v. Harper, 26 Ala. 689; Henley v. Branch Bank at Mobile, 16 ib. 557; Bancroft v. Stanton, 7 ib. 351.</p> <p>2. The second plea was bad on demurrer. — Agee & Agee v. Medlock, 25 Ala. 283.</p> <p>3. The third, fourth, fifth, and sixth pleas were all defective for the causes assigned in the demurrers. None of them show a failure of the consideration of the note sued on.</p> <p>4. The seventh plea does not present a case within the statute of frauds. — Code, § 1551.</p>

<p>Appeal from the Circuit Court of Dallas.</p> <p>Tried before the Hon. Nat. Cooe.</p> <p>Assujipsit by William H. Hiscox against John Hendree, on two promissory notes, each for $325, dated January 1st, 1851, payable six and twelve months after date to the order of G. D. Hiscox, and by him endorsed to plaintiff. On the trial, after the plaintiff had read his notes in evidence, the defendant introduced evidence tending to show that said notes were given in part payment of a philosophical apparatus for which he had contracted with said G. D. Hiscox by letter at .the price of $1300 ; that the balance of the purchase money was paid in cash ; and that the apparatus was not worth more than the amount of said cash payment. The plaintiff then offered in evidence the deposition of said G. D. Hiscox, which had been taken on interrogatories and cross-interrogatories ; and it appeared that the defendant, at the time of filing his cross-interrogatories, objected to the examination of the witness for plaintiff, on the ground that he was interested in the event of the suit, and gave written notice that he would move to suppress his deposition at the trial for this reason. The defendant now objected to the reading of the deposition on that ground; and the plaintiff thereupon offered to show that the witness was released from all liability upon said notes before he was sworn, and for this purpose read to the court the answer of the witness to the second interrogatory, in which he stated that he had been released by the plaintiff, and appended the release as an exhibit to his answer. “After the reading'of said release to the court, the plaintiff again offered to read said testimony to the jury; which was objected to by the defendant; and the court excluded said testimony from the jury, and all and every part of it, and the plaintiff excepted.</p> <p>“ The plaintiff then offered to read the testimony of James R. Chilton, which testimony was taken on interrogatories in the city of New York.” This witness, in answer to the third interrogatory, describes the apparatus sold by said G. D. Hiscox to the defendant, and states what Hiscox told him was the price of it. “ The defendant moved to exclude the answer of said witness to the third interrogatory ; and thereupon the court excluded all and every part of said testimony from the jury, and plaintiff excepted.”</p> <p>These two rulings of the court are now assigned for error.</p> <p>I.The deposition of Hiscox ought not to have been ruled out. This action was commenced before the Code went into operation, and therefore, by force of section 12, it is not affected by section 2290. The question of the competency of this witness, therefore, must be tested by the rules of the common law. In a suit by the endorsee of a promissory note against the maker, the payee and endorser was a competent witness to impeach the consideration, and he should therefore be competent to sustain it. — State Bank v. Seawell, 18 Ala. '616. But, admitting that, at common law, he was incompetent for this purpose by reason of interest; yet, in this case, he had been released, and this was sufficiently shown to have authorized the admission of his deposition, because,—</p> <p>1. The defendant examined him as to the release, and is not allowed, after doing so, to object to his competency to prove it.</p> <p>2. For the further reason, that the only evidence of the identity of the witness with the payee, was his own deposition ; and if he was competent to prove that fact, he was also competent to prove his release.</p> <p>3. For the further reason, that the witness, being released as to one of the notes by the failure of the plaintiff to sue to the first court, was, to the extent of the amount of that note, competent to prove the consideration.</p> <p>4. The original release was appended to the deposition, and certified by the commissioner. The plaintiff had the deposition of the witness regularly taken, and offered the release as his own act on the trial; which was sufficient to estop him from afterwards denying it. These facts are sufficient to raise a legal presumption of the execution of the release before the taking of the deposition. — 2 Story’s B. 16, 42 ; 8 Term R. 303 ; 10 Johns. 381; 9 C. & P. 235 ; 8 Shep. 494 ; 13 Conn. 319 ; 1 Greenl. 536 ; 22 Ala. 269.</p> <p>5. The defendant allowed the evidence of the witness as to the release, and also the release, to be read without objection ; and if these were sufficient to remove the objection to the competency of the witness, the deposition ought not to have been excluded.</p> <p>6. All that is necessary to be done, in such a case, is to furnish the court with sufficient evidence to raise a legal presumption of the genuineness of the release; and this was done. The court, therefore, should not have excluded the deposition. — 1 Greenl. Ev. §§ 423, 425 ; Herndon v. Givens, 16 Ala. 261 ; Carlisle v. Russell, 1 C. & P. 234 ; ib. 197 ; Dent v. Portwood, 17 Ala. 242.</p> <p>II. The court erred, also, in excluding “ all and every •part of” the testimony of Chilton — that is, not only the answer to the third interrogatory, but the entire deposition, and every part of it; thereby, in effect, passing upon every part of it in advance, and anticipating any offer on the part of the plaintiff of a portion of it only. To have offered any portion of the deposition, after “ every part” of it had been thus excluded, would have been a violation of the courtesy which is due from the bar to the court, if not a contempt of court. By failing to object to any other portion of the testimony, the defendant conceded its admissibility ; and therefore the court erred in excluding it- — Bartol v. Calvert, 21 Ala. 46. Many decisions of this court hold, that the court below ruled properly, in not sustaining an objection when a part of the evidence was admissible. — Rowland v. Ladiga, 21 Ala. 31; Litchfield v. Falconer, 2 ib. 280 ; Hatchett v. Gibson, 13 ib. 597 ; Melton v. Troutman, 15 ib. 535 ; Allen v. Smith, 22 ib. 416 ; Newton v. Jackson, 23 ib. 335. But no one of these cases decides, that it is a matter in the discretion of the court to exclude the whole or “ every part” of the testimony. The dictum, therefore, in Gibson v. Hatchett & Bro., 24 Ala. 201, cannot be sustained. The true distinction seems to be this : If testimony is offered, of which a part only is admissible, and a general objection is made to its admission, the court may either overrule the objection, or it may sift the evidence and exclude the illegal part; and this is within the discretion of the court, and will not be reviewed on error. But, on the other hand, this rule certainly does not authorize the court to exclude “ every part" of the testimony offered, when an objection is only made to an answer to one interrogatory.</p> <p>contended, 1st, that the deposition of Hiscox was properly excluded under the authority of Dent v. Portwood, 17 Ala. 24-2 ; and, 2d, that the testimony of the witness Chilton was correctly suppressed, because a part of it was illegal, while the whole deposition was offered together.</p>

Heard before the Hon. James B. Clark. This bill was filed by Mrs. Milly David against her husband, Henry P. David, seeking a divorce on the ground of cruel and inhuman treatment. The chancellor granted the divorce, and his decree is now assigned for error.

Tried before the Hón. Alex. McKinstry. Trover by the appellant against S. W. &• S. ^jpochra^s^'' Co., to recover the value of certain bills of excliange^ánd promissory notes, amounting in all to near $20,000. The defendants pleaded the general issue, together with several special pleas, which are as-follows :■*- “ 2.

Tried before the Hon. JOHN E. MooRE. DetiNue by Robert M. Patton, as administrator of Hugh McVay, deceased, for a negro woman (named Perse) and her three children, whom the said McYay conveyed by deed of gift to his daughter Eliza W. Martin.

<p>[ACTION AGAIXST PAliTNEKSILIP ON promissory note.]</p> <p>.1. lAabiliLy of partnership on note given, with concurrence of majority of partners, for ¡ necessary supplies, ordered by one partner, for persons engagedin its business. — where | three persons are engaged in carrying on a steam saw-millin copartnership for a specified term, and during its continuance the note of the firm is ¡; given, with the concurrence of two of the partners, for necessary supplies, >; ordered by one of them, for the hands engaged in carrying on the business, V the partnership is bound by it.</p> <p>2. .Effect of notice by one copartner that ho will not be bound for any future déi contracted on account of partnership. — If a firm consists of but two partners, each having an equal voice in the direction and control of the common business, either may protect himself against liability on a future contract, by giving notice of his dissent to the person with whom it is about to bo made; and where the partnership consists of more than two persons, one of whom gives notice of his dissent, the party contracting with the others acts at his peril, and cannot hold the dissenting partner liable, unless his liability results from the articles, or from Ihc nature of the partnership. _</p> <p>3. Majority shall rule, in the absence of express stipulations. — When a partnership consists of more than two persons, there is an implied understanding, in the absence of express stipulations to the contrary in the artioles of partnership, that the acts of the majority, as to all matters within the scope of the common business, shall bind llio firm; and if one partner, in such'oase, gives notice of his dissent before tlio creation of the contract, he is nevertheless bound by the act of the other partners, and there is no necessity that he should be consulted by them in the matter.</p>

Tried before the Hon. Alex’. MoKinstet. This action was brought by the appellee against Jacob B. Walker, James A. Mooring, and S. G. Stone, “to recover the sum of §110 68, duo by open account on the 21st February, 1853, lor work, labor, and materials furnished, at the request of defendants, in and about Llio repairs and fitting up of a certain steamboat, called the ‘Frank Lyon’, the-property of said defendants ; also, the sum of §451, the premium of insurance duo and payable…

Tried before the Hon. Charles W. Rapier. This action was founded on a promissory note for'f>82 46, executed by S. C. Benson and John S. Wright, dated April 18, 1854, and payable by the' 25th December next thereafter, with interest from the 1st January, 1854, to John Bolling, or bearer. The defendant Wright, on whom alone the summons was executed, defended the suit, but the record does not state what the pleas were.

<p>Appeal from the Circuit Court of Chambers.</p> <p>Tried before the Hon. JNO. Gill ShoeteR.</p> <p>This action was commenced in August, 1853, and was founded on a promissory note of which the following is a copy:</p> <p>“ §89,75. One day after date, I promise to pay Robert L. Mays, adm’r, <&c., the sum of $89,75, for value received this March 13, 1851. (signed) Wilson Williams.”</p> <p>The plaintiff sued on this note as administrator of Thomas J. Williams, deceased. The bill of exceptions states, that after the plaintiff had read the note in evidence, “ the defendant proved by a witness, that said note was given entirely for a medical account contracted by defendant with plaintiff’s intestate in his lifetime, in the years 1850 and 1851, which account was found on said intestate’s boohs after Ms death; that when said note was given to plaintiff, the said medical account was given up to the defendant, and the note was handed by him to plaintiff; that at the time the said note was thus executed, and said account receipted and given up, defendant raised no other objection to the account than that it was too large, and, on being informed that plaintiff, as administrator of his intestate, could deduct no portion of said account, ho then executed said note, and delivered it to plaintiff. Defendant further proved, that he had regularly served a notice on plaintiff, in pursuance of the statute in such case made and provided (Olay’s Digest, p. 491, § 42 ; Code, § 978), to produce the license or diploma of his intestate to practice medicine ; and it was admitted that plaintiff had notice to produce said license or diploma of his intestate, and that it could not be produced by him. There was no evidence before the jury, tending to show whether or not defendant, at the time he executed said note and took up said account, knew that said intestate had been practicing medicine in his family without a license or diploma. There was proof, that said intestate, during the period in which said medical account was made, practiced sometimes on the botanic system, as well as the old medical system ; and there was also proof that he bled, blistered with Spanish flies, and gave calomel to defendant’s family, while rendering the medical services embraced in said account: but there was no proof that said intestate, while said account was being contracted, ever practiced on the botanic system in the defendant’s family.</p> <p>“ This was all the evidence in the cause adduced by either of the parties ; and on these facts, the plaintiff, by his counsel, requested the court to charge as follows :</p> <p>“ 1. That a notice to plaintiff to produce, on the trial of the cause, his intestate’s license or diploma to practice medicine when the account in question was contracted, and after the note was given for it to plaintiff as his administrator, without raising the objection, at the time of the execution of the note, that said intestate had no license or diploma at the time the account was contracted, (if they believe these to be the facts,) presents no bar to plaintiff’s recovery on said note, although he fails to produce the license or the evidence thereof, and that if no other defence against said note be made out to their satisfaction, they must find for the plaintiff.</p> <p>“ 2. That to entitle plaintiff to recover on said note, he is not bound to show that his intestate, when said medical account was made, had a license or diploma to practice medicine, although he had been notified to produce it.</p> <p>“ 3. That if they believe the whole evidence, they must find for the plaintiff the amount of the note, with interest from its maturity.</p> <p>“ These several charges the court refused to give, and to each refusal the plaintiff excepted.</p> <p>“ The defendant then asked the court to charge the jury,—</p> <p>“ 1. That if they believe from the evidence that the note sued on was given for medical services performed by plaintiff’s intestate, or for medicines furnished and sold, as prescribed by him as a physician, or for either of them, then plaintiff cannot recover if ho practiced medicine as a botanic physician.</p> <p>“ 2. That in civil cases, all that is required is, that the proof shall preponderate in favor of one party or the other, and the jury must find according to the preponderance of the proof.</p> <p>“ 3. That although the note, on its face, imports a consideration, yet, if the proof is so far satisfactory to their minds as to produce the preponderance that the note was given for medical services performed by plaintiff’s intestate, or for medical services furnished as prescribed by him as a physician ; and that said intestate, in his practice, used calomel, or any of the preparations of medicines sold, or bled his patients, or blistered them with Spanish flies, — -then plaintiff cannot recover.</p> <p>“ These throe charges were given by the court, as asked, and to the giving of each separately the plaintiff excepted.”</p> <p>The charges given, and the refusal to give the charges requested by plaintiff, are now assigned for error.</p> <p>1. That the statute in force at the time the account was contracted for which the note was given, must govern the sufficiency of the-notice; that by the express terms of this statute (Clay’s Digest, p. 491, § 42), the notice must be given to the physician by whom the services were'rendered, and therefore his administrator could not be required to produce it.</p> <p>2. That inasmuch as the note was given, not to the physician himself, but to his administrator, and given without objection, the case is taken out of the operation of the statute and decisions cited for the appellee. — Gilmer v. Ware, 19 Ala. 252.</p> <p>cited Clay’s Digest, pp. 487, 491, §§ 1, 2, 42 ; Code, § 978 ; Holland v. Adams, 21 Ala. 680 ; Allcot v. Barber, 1 Wend. 526.</p>

AppbaXj from the Court of Probate of Franklin. In the matter of the estate of John Snow, deceased.

The record does not show the name of the presiding judge. Trespass to trt titles, as also to recover possession of a tract of land lying in Shelby county, which the plaintiffs claimed as heirs-at-law of Francis Shrader, deceased; George Reeves and Rutha, his wife, being named in the writ and declaration as two of the plaintiffs.

Tried before the Bou. JNO. Q-ill Shorter. Assumpsit by John J. Hussey against Yinson P. Roque-more, on a promissory note for $300, dated August 2, 1847, and payable to the plaintiff on or before December 25,1849 ; on which was endorsed a credit of $225, dated December 8, 1849. The only plea was the general issue, with leave to give any special matter in evidence.

<p>Appeal from the Circuit Court of Madison.</p> <p>Tried before the Hon. Thomas A. Walked,.</p> <p>ActioN under the Code by Joshua Collier against Irvine Windham, on a bond of indemnity. The complaint states, in substance, that at the March term, 1845, of the Circuit Court of Limestone county, William Brandon obtained a judgment against Achilles Whitlock, for a sum specified in the complaint ; that on this judgment execution issued in the lifetime of Whitlock, and “ a chasm intervened”, and he died, and on the 8th March, 1841, a fieri facias issued, which was delivered to the. plaintiff, who then was the sheriff of said county, and wlio as such sheriff levied it on various articles of personal property specified in the complaint, as the property of Whitlock ; that on the 13th March, 1847, said Brandon (who is not sued) and the defendant Windham executed to the plaintiff a bond, in the penal sum of one thousand dollars, the condition of which, after reciting all the aforesaid facts except the death of Whitlock, concludes in the follow’ ing words, to-wit: “And a doubt having arisen whether the right of said property is in said Achilles Whitlock, now, if the said William Brandon shall well and truly indemnify the said Joshua Collier, sheriff as aforesaid, against all suits, or actions, 'or other injury on account of said levy and sale, to take place by virtue qf said execution at the 'request of said Wm. Brandon, then this obligation to be void; else, to remain in full force and virtue.” The complaint then proceeds'to assign a breach as follows : “And the plaintiff says, the condition of said bond has been broken by defendant, in this, that afterwards, to-wit, on the — day of -, 18A7, plaintiff, at the request of said Brandon, sold said property mentioned above as such sheriff, for the sum of $374 94, and paid the proceeds of said sale to said Wm. Brandon ; that said Whitlock, against whose property said execution had been issued, died previous to its issuance, and his estate was regularly declared and settled as an insolvent estate ; that after said sale, plaintiff was appointed, by the Probate Court of Limestone county, as administrator de bonis non of the said Whitlock; that one Allen McCargo had preceded him in said administration, and had resigned without collecting the assets of said estate; and plaintiff having declared and settled said estate as (an) insolvent estate, upon his final settlement thereof, on to-wit, 12th of January, 1852, plaintiff was charged with the value of all the property mentioned in said bond, it being the sum above-mentioned, with interest from said sale to said final settlement, it being $119, and rendered a decree therefor to the creditors of said Whitlock against plaintiff. Yet said defendant, although he has had notice of the above facts, has not paid to the plaintiff the amount for which he has been charged in consequence of said sale, nor has he in. demnified him, though requested so to do; nor did the said Wm. Brandon in his lifetime, nor Ms personal representatives since his death, nor this defendant, paid plaintiff said sums, or any part thereof,” &c.</p> <p>A demurrer, specifying the grounds of it, was filed to the complaint, and sustained by the court. The plaintiff refused to amend, and judgment was rendered against him ; and he now assigns for error the sustaining of the demurrer.</p> <p>contended that, although the execution was void, yet, as the parties to the bond did not know it, the act of the sheriff was not manifestly illegal ; that as the parties in interest waived the trespass, and affirmed the sale, (which they had a right to do, as this court decided in 25 Ala. 548,) it did not lie in the defendant’s mouth, at whose special request the plaintiff acted in making the levy, to set np the illegality of the act to avoid liability on his bond. He cited Moore v. Appleton, 26 Ala. 633, and authorities there referred to.</p> <p>contended that the execution was a nullity (Collingsworth v.- Horn, 5 Stew. & P. 237 ; Holloway v. Johnson, 7 Ala. 660 ; Henderson v. Gandy’s Adm’r, 11 ib. 431; Moore & Cocke v. Bell, 13 ib. 469; Stewart v. Nuckols, 15 ib. 225; Graham v. Chandler, ib. 344), and that the bond of indemnity, being given to induce the sheriff to do an act not authorized by law, was also void, (Renfro v. Heard, 14 Ala. 25; Prewitt v. Garrett, 6 ib. 128.)</p>

<p>Appeal from tbe Circuit Court of Pickens.</p> <p>Tried before the Hon. Turner Reavis.</p> <p>MotioN to dismiss the appeal, because the appellant, in whose name it was sued out, appears by the affidavits here filed in support of the motion to be an infant, who here assigns errors by attorney. The appellant was defendant below, and was sued by the appellee, in an action on tbe case, to recover consequential damages for a tort. Judgment was rendered against the defendant below; but he excepted to several rulings of the court, which are set out in the bill of exceptions, and whicNhe here seeks to revise ; assigning for error, among other things, that the court proceeded to try the cause, and rendered judgment against him, being a minor, without the appointment of a guardian ad litem.</p>

Heard before the Hon. J. W. Lesesne. This bill was filed by the appellants, as heirs-at-law and distributees of Charles R. Marshall, deceased, to establish the nuncupative will of the said decedent, which was made and published on the 4th April, 1853, during his last sickness, and was committed to writing within five days after his death.

Tried before the Hou. Andrew B. Moore. Detinue by Lucy Reese against Mary M. Harris, for a slave named diaries; pleas, non detinet, and the statute of limitations of six years. All the evidence is set out in the bill of exceptions, but the view here taken of the* case renders it unnecessary to give a detailed statement of it.

Tried before the Hon. O. W. Rapier. Detinue by James M. Bonner against the appellants, for a negro boy named Moses, whom the plaintiff claimed under the will of his father, which was in these words: “ I ordain this my last will and testament, as follows, to-wit — 1. I will that my just debts be paid. 2. I give and bequeath unto my daughter Emily one negro woman, Jinney, and all her increase which she now has or may hereafter have.

Tried before tbe Hon. C. W. Rapier. This was a motion against tbe appellant, as sheriff of Mobile county, for failing to pay over money collected under execution. By consent of parties, a jury was dispensed with, and it was agreed that the court should decide both the law and the facts of the case.

Heard before the Hon. A. J. Walker. This bill was filed by the appellee, as executor of John Potter, deceased, against the appellant, as administrator of William Potter, deceased ; and its object was to obtain partition of a slave, which was alleged to have been bequeathed to one David Potter for life, “ and at his death to go to his sons, John and William, to be equally divided between them.” The bill alleged, that the slave was held by said David Potter during his life…

Heard before the Hon. Wade Keyes. This bill was filed by the appellants against William G. Jones, as the administrator of Edward 0. Branch, deceased, who was the father of Mrs. Cowan.

<p>[ACTION ON PROMISSORY NOTE — CONSTRUCTION OP STATUTE OP AMENDMENTS, CODE, § 2103.]</p> <p>1. Sole plaintiff’s name cannot be stricken out and that of another substituted.- — Under the statute authorising amendments of the complaint (Code, § 2403) “ by striking out or adding new parties plaintiff, or by striking out or adding-new parlies defendant,” the court cannot allow the name of a sole plaintiff to be stricken out and that of another person to bo substituted.</p>

Tried before the Hon. Alex. McKinstby. Tom, about seven years old, and Mary (alias Louisa), about nine years old ; pleas, non detinet, and justification under certain attachments sued out by third persons against Michael M. Rowan, a brother of plaintiff, and levied by the defendant, as sheriff of Mobile’ county, on said slaves as the property of said Michael.

Heard before the Hon. James B. Claris. This bill was filed by the appellants, asking the reformation of a certain deed of mortgage executed by J. A. & W. H. Knight, and an injunction against several judgment creditors of the mortgagors who bad levied on the property. The mortgage, which was made an exhibit to the bill, is dated February 9, 1852, and the law-day is January 1, 1858.

Heard before the Hon. E. D. Townes. This bill was filed by John E. Wyche, as executor of the last will and testament of Clackston Lightfoot, deceased, against the heirs-at-law and legatees of said decedent; asking the direction of the court in the settlement and distribution of his estate.

Tried before the Hon. B. W. Huntington. This action was brought by the appellants, in December, 1851, to recover the possession of a certain tract of land in the county of Pickens, as well as damages by way of rent for its detention ; and the only plea was, not guilty.

Tried before the Hon. Alex. MoKihstry. The appellee commenced suit against the appellant by original attachment sued out before the clerk of the City Court, and judgment by default was taken at the return term of the writ. From this judgment the present appeal js taken, and it is here assigned for error, among other things, that the clerk had no authority to issue the attachment, and the judgment is therefore void. No briefs were submitted by counsel on this point.

Tried before the Hon. 0. W. Rapieb. Ejeotment for a lot of land in the city of Mobile ; separate demises being laid from William R. Hallett, as executor of Joshua Kennedy, deceased, and from the children and heirs-at-law of said Kennedy. The defendant entered into the usual consent rule, pleaded not guilty, and made the statutory suggestion of adverse possession and valuable improvements.

Tried before the Hon. Robert Dougherty. This action was brought (under the Code) by Henry Shra-der against the appellants, and was commenced by attachment. No pleas appear in the record. On the trial, as appears from the bill of exceptions, “ the plaintiff offered evidence tending to show that, in 1852, he had made one hundred and fifty safes for the defendants, under a special contract to do the work for $3 per safe.

Tried before the Hon. Andrew B. Moore. The appellees brought an action against the appellant on certain promissory notes, and recovered judgment thereon.

Heard before the Hon. James B. Clare. This bill was filed by Isaac Kirksey against Harlan Eike, and alleged,'substantially, the following facts : In November, 184T, Kirksey and Eike entered into co-partnership in the tanning business, but did not commence their operations until the fall of 1848.

Chancellor James B. Clark, presiding in the Chancery Court of Macon. The facts, on which the application is based, arc stated at length in the opinion of the court.

Tried before the Hon. John Gill Shorter, This was an action of debt, brought by Irá R. Foster against Sion B. Glazener.

Tried before the Hon. Alex. McKinstry. The appellants, on the 16th May, 1853, sued out an original attachment against the estate of Stone & Walworth, as nonresidents, and summoned Alexander Auld by… Held: that the drawee, until after the bill is accepted, owes no duty to the holder. — Harris v. Clark, 3 Comstock’s B. 118 ; Cowper-thwaite v. Sheffield, ib. 243 ; Winter v. Drury, 1 Selden’s B. 525 ; Chapman v. White, 2 ib. 412 ; also, Mandeville v. Welch, 5 Wheat. 286. 3.

<p>Appeal from the Circuit Court of Talladega.</p> <p>Tried before the Hon. Robeet Dougheety.</p> <p>This action was brought by the appellee, as administratrix of Edward Henry, deceased, on a promissory note for $559 47, executed by the defendant, Baldwin M. Eluker, dated April 15, 1851, and payable one day after date to E. Henry or bearer. The only plea was the general issue, with leave to give any special matter in evidence.</p> <p>At the trial, after the plaintiff had offered in evidence the note sued on, the defendant introduced evidence tending to show that, in the year 1849, J. G-. Dent & Co. had purchased a negro from said Edward Henry, plaintiff’s intestate ; and then introduced said Henry’s bill of sale of said slave, which was under seal, and contained a warranty of title and soundness. He introduced evidence, also, “ tending to show that said J. G-. Dent & Co. gave their promissory note to said Henry for the price of said slave, with himself (defendant) as surety to the same ; that said Dent & Co., immediately after the purchase of said slave, went into Tennessee, and commenced working on a railroad where they had taken a contract, and carried said negro with them; that defendant, whilst they were so operating in Tennessee, after part of said ol’iginal note had been paid, lifted it, by giving the note now sued on, in discharge of the balance remaining due on said original note, which balance was the amount of the note now sued on. Defendant then introduced one John Deborde as a witness, who testified, that he was employed by said J. Q-. Dent & Co. to work on said railroad; that some time in June, 1849, about the time of the purchase of said negro, witness left Talladega, in advance of said Dent & Go. and their hands, for said railroad ; that J. G-. Dent & Go. arrived in Tennessee, within fifteen days from the time witness left, at the place of operating, with their hands and implements, the said negro being one of them; that he discovered, on the day of their arrival, that said negro was very short-winded, and breathed like he had (what witness called) ‘ the bellowses’, and complained of pains in his side or chest; that, within three or four weeks after his arrival, his feet and ankles were swollen, and the swelling extended up his legs and system, and in twelve or fifteen months he died ; that said negro did not work more than one-third of his time, in consequence of his complaints, and when he did work was not able to do a full hand’s work ; that he would not have' hired for anything in his then condition ; that a good deal of the time he had to be attended to and waited on by some one of the other negroes; that the wages of a hand were usually about $13 per month and boarded ; that the negro, as he was when witness saw him, was worth nothing.</p> <p>“ Plaintiff moved to exclude all the evidence of this witness, on the ground that defendant could not recoup damages for a breach of warranty made to J. Gr. Dent & Co.-; and thereupon defendant stated to the court, ■ that he would prove, m connection with what Deborde had testified to., that said negro was diseased at the time said Henry sold him to J. G. Dent & Co., and long before that time, and that said Henry knew it; and stated, that the testimony of Deborde was offered in connection with this, which he would introduce in the further progress of the trial. Defendant also offered to' prove, in connection with the testimony of Deborde, that J. G. Dent was in fact defending-this suit,'and had employed the attorney who conducted the defence, and had authorized him to make any defence which could be made available by him as a party really interested. Defendant further insisted, that the evidence of Deborde was good, of deceit and fraud, or failure of consideration. The court, notwithstanding, excluded the evidence, and the' defendant excepted.”</p> <p>The exclusion of this evidence is now assigned for error.</p> <p>That the original note could have been successfully defended, without returning the negro, if fraud was prácticed.— Ricks v. Dillahunty, 8 Port. 133; Williams v. Cannon, 9 Ala. 350; 13 Johns. 302 ; 14 Pick. 217; Chitty on Contracts, 402. If it was void for fraud, there is no consideration for the note sued on. — Huckabee v. Albritton, 10 Ala. 660. The surety can make any defence which the principal could. — 9 Ala. 46 ; 7 ib. 837; 13 ib. 773. The giving of a new note is no more obligatory than a parol promise, which does not preclude such defence. — Huckabee v. Albritton, supra. The cases of Langdon v. Roane, 6 Ala. 520, and McGowan v. Gar-rard, 2 Stew. 479, though at first view inconsistent with this position, on examination will be found not to be so.</p> <p>insisted, that the doctrine of recoupment only applies where there are mutual promises, between the same parties, made at the same time, and in relation to the same subject-matter. — Hatchett & Bro. v. Gibson, 13 Ala. 593; Hill v. Bishop, 2 ib. 320; Green v. Linton, 7 Port. 141; Batterman v. Pierce, 3 Hill, 174; Craddock v. Stewart, 6 Ala. 82.</p>

Tried before the Hon. Robert Dougherty. This action was brought by Holman Freeman, the appellant, against William L. Scurlock and Thomas Cliett, to recover damages for the conversion of two slaves, Lucy and her infant child. As the substance of the evidence is embodied in the opinion of the court, it is unnecessary to state it in this place.

<p>[ANCILLARY ATTACHMENT AND GARNISHMENT.]</p> <p>1. Garnishees discharged on answei'. — Garnishees answered, that the defendant in attachment, being indebted to their firm in the sum of $2,000, agreed to serve them as bookkeeper for the year, at a salary of $1,500, payable monthly; that he was to receive in money only enough to pay the necessary expenses of his family, and the balance of his salary was to be applied to the liquidation of his said debt; and that they had paid him about $500, which was a reasonable sum, for his family expenses: Held, that no judgment could be rendered against the garnishees on this answer, either under 'the Code (§ 2517) or under the act of 1854 (Acts 1853-4, p. 26, § 4).</p>

<p>[SUMMARY PROCEEDING BY SURETY AGAINST ADMINISTRATOR OP DECEASED OO-SURETY.]</p> <p>1. Summary proceeding, if record shmo jurisdiction, like other suits. — A statutory proceeding hy notice and motion, on the part oí a surety against his co-surety, if the defendant appears and pleads, and the issues are tried hy a jury, is like any other case commenced in the ordinary mode, except that the record must show that the court had jurisdiction.</p>

Tried before the Hon. Nat. Cook. This action of ejectment (Code, §§ 2209, 2210) was brought by the appellants, Alfred Iverson and Alex. J. Robinson, to recover an undivided moiety of the east half of section twenty-three (23), in township twelve (12), range twenty-eight (28), east.

Heard before the Hon. James B. Clark. This bill was filed by Solomon Heydenfeldt, the appellant, against William Towns and the heirs-at-law of Benjamin Young, deceased, and alleged, in substance, these facts : That said Benjamin Young, at the time of Ms death, in July, 1841, was justly indebted to complainant in a large amount; that letters of administration were granted on his estate, in November, 1841, by the Orphans’ Court of Tallapoosa county, in which county he resided…

Heard before the Hon. Wade Keyes. This bill was filed by William Johnston, the appellee, and alleged the following facts : That complainant, living in Dallas county, and owning a valuable tract of land in Mobile county on which he was desirous of erecting a steam saw-mill, and being totally unacquainted with mechanics and with that kind of business, was anxious to form a partnership for that purpose with some person who was skilled in machinery and fully competent to erect…

Appeal front the Circuit Court of Choctaw. Tried before the Hon. C. W. Rapier.

Tried before the Hon. EdmuND W. Pettus. This action was brought by the appellants, as partners, to recover the amount of two promissory notes, executed by Nathaniel G. Eriend and John C. Johnston ; each for $2,500, dated April 4, 1852, and payable respectively nine and ten months after date, to Harrison & Robinson, or order, at the Bank of Mobile.

Heard before the Hon. James B. Clark. This bill was filed by William Spears to redeem certain • lands which were sold under execution against him, and were purchased by the appellant. The judgment, on which the execution issued, was rendered on the 7th November, 1844, for $100 debt, and $18 21 costs ; and the lands were sold on the first Monday in February, 1845, and were purchased by the appellant, who was the plaintiff in the judgment, for $32 12|.

<p>[ACTION UNDER CODE TO RECOVER DAMAGES l'OR MALICIOUS PROSECUTION.]</p> <p>1. Evidence of plaintiff’s general bad character admissible. — In an action to recover damages for a malicious prosecution for larceny, the defendant may introduce evidence of the plaintiff’s general had character, showing that his only occupation was that of gambling and horse-racing-; since it would require less stringent proof to make out probable cause for prosecuting a man of such character, than one who had always maintained a good reputation and followed a lawful occupation.</p> <p>2. Admissibility of declarations of ownership, when accompanied with possession, and when referring to past transactions. — Declarations of ownership of a slave, when accompanied with possession, are admissible evidence as a part of the res</p> <p>' gesta:; but declarations referring to a past transaction are mere hearsay, and therefore inadmissible.</p> <p>3. General objection to evidence, of which purl is legal. — A. general objection to evidence as a whole, when a part of it is legal, may be overruled.</p> <p>4. Hearsay inadmissible.- — A witness, who saw two persons engaged in writing,’ cannot testify to the character of the writing from what one of the parties afterwards told him respecting it: such evidence, relating to a past transaction of which the conversation formed no part, is mere hearsay.</p> <p>5. Malicious prosecution. — The cases of Leaird v. Davis, 17 Ala. 27, Long v. Rogers, ib. 540, same parties, 19 ib. 321, Ewing v. Sanford, ib. 605, and 21 ib. 157, cited and approved.</p>

Heard before the Hon. E. D. Towiíes. This bill was filed by James K. McCollum, the appellee> against Samuel Caple, George M. Hubbert, Raza H. Poe, and Samuel B. Abernathy, and contained, in substance, the following allegations : That certain judgments wore rendered against complainant, in 1840, on which executions were issued and levied on his lands by defendant Hubbert, who was then sheriff of Fayette county ; that Hubbert’s term of office expired soon afterwards, and said…

Appeal frota the Circuit Court of Lowndes. Tried before the Hon. Nat. Cooic. This action was brought by the appellant, as administrator de bonis non of John J. Funchess, deceased, to recover damages for the conversion of a slave named Patience, belonging to the estate of bis intestate, and was commenced in March, 1853. The defendant pleaded, 1st, not guilty ; and, 2d, the statute of limitations of six years.

Heard before the Hon. Wad® Keyes. This bill was filed by Wm. II. Rives, and Sarah Jane, his wife, as administrator and administratrix of Philip A. Wray, deceased, against Abram Martin, as administrator of Henry F. Slatter, deceased, and Henry Furniss.

<p>Appeal from the Court of Probate of Wilcox.</p> <p>MotioN by Samuel F. Perkins, at the May term, 1853, for the rendition of a final decree against the executors of Solomon Perkins, deceased, nunc fro tunc as of the 14th April, 1851. The court granted the motion, and its action is now assigned for error.</p>

Tried before the Hon. Andrew B. Moore. This action was brought by Burrell H. Mise against James Parker ; the complaint being in these words : “ The plaintiff claims of the defendant $500, as damages for wrongfully shooting plaintiff’s dog, said dog being the property of plaintiff, and of the value of $50 ; and other wrongs done to the said plaintiff by the said defendant on the 81st December, 1853.” The defendant demurred to the complaint, “ 1st, for the reason that no…

<p>Appeal from the -Chancery" Court'of Barbour.</p> <p>Heard before the Hon. Wade Keyes.</p> <p>This bill was filed by Allen W. Hill against Matthew Averett, alleging, that complainant, being the owner of certain lands lying- on both sides of the Ohattahoochie river at Florence, Georgia, was authorized by an act of the legislature of that State to establish a ferry across said river at that point, and had his ferry established and in successful opera-' tion ; that there has been for many years a public road, duly authorized and opened by the Commissioners'" Court of Barbour county, Alabama, running- between the lands of complainant and one Williams, on the one side, and the lands of .Matthew Averett, on the other, and leading to said ferry ; that said Averett has recently erected an obstruction across said’public road, commencing on his own lands, and extending across said road to the lands of said Williams ; that this obstruction changes said public road from the direction in which it was authorized and accustomed to run, and thereby diverted the public travel- from complainant’s ferry, and rendered his chartered privilege entirely worthless to him ; that Averett has no chartered privilege granted to him by the legislature of Georgia to erect either a bridge or ferry across said river at Florence, and that complainant's is the only chartered ferry at or near that point; that Averett erected said obstruction with a knowledge of complainant's chartered privilege, and with the intent to render the same valueless to him ; and that he is now proceeding in said Commissioners’ Court of Barbour, for an order to legalize said obstruction and change of the public road. The prayer of the bill is, for an abatement of the obstruction, an injunction against further proceedings in the Commissioners’ Court, and for general relief.</p> <p>The defendant answered the bill, admitting that there was, and for many years had been, a public road in Barbour county, duly authorized and opened by the Commissioners’ Court, running between his lands and those of complainant and Williams, and términating at or near the place on said river where a chartered bridge formerly stood, which fell down and was destroyed about eleven years ago; alleging that complainant’s ferry was over one-quarter of a mile from the point where said road terminated, and that there was no road opened by authority of said court, leading from complainant’s ferry into this public road. He alleged, also, that at a regular term of said court, held in May, 1848, he was authorized to erect a toll-gate across said public road at its termination on said river, and gave bond and security, as required by the order ; that all persons were prohibited by said court from interfering in any manner with his privileges, within one mile of his toll-gate up and down said river ; that at the time said- bridge fell down, there being no means left for persons to cross said river at Florence, he made a contract with one H. H. Jernigan, who was the agent of the company to whom the lands on which Florence was built belonged, for the establishment of a ferry across tho river at that place ; that ever since that timo he has kept a good ferryboat and competent ferrymen at Ids ferry, and has kept the same in good order and repair ; that the road leading from the Georgia side of said river to his ferry has been in the constant and uninterrupted use and possession of the public for more than twenty years, and the United States mail has been carried over it for more than eleven years; that complainant, a short time before the filing of his bill, obstructed said road. by catting ditches across it, Ac., and thereby diverted the public travel to his own ferry ; that he also, with the view of interfering with respondent's rights, purchased a tract of land on the Alabama side of the river, through which, without any order or authority from any court in this State, he has lately opened a private road, leading from his ferry to the public road within a half mile of respondent’s toll-gate; that this road runs over low, flat, muddy lands, and compels the public to travel a much worse road, and to go about a mile further to get to Florence, than they would be obliged to go by crossing at respondent’s ferry. He further states, “ that for the purpose of securing and protecting his rights, respondent commenced, a little west of the point where the lands of complainant, respondent, and said Williams cornered, to throw said public road south of its original course, and caused it to run parallel with the old road, until it reached the old road immediately below the point where it turned down the river to respondent’s ferry, leaving a strip of land between the old and new road not more than six or eight feet wide, and leaving the old line of fence running along said strip between said roads ; and at the point where said road leaves the old road, respondent erected a fence across said old road. Respondent further avers, that said public road, as it ha s been made to run by him, has been rendered more convenient to the public than the old road, not only because it passes over ground equally as good as the old road, but because it shortens the distance to the point where the old road terminates at the river, and throws said road in a straighter line from the point where said new road leaves the old one to respondent’s ferry.” Respondent avers, also, that said fence is erected entirely on his own land ; that the overseer of said public road, appointed by the Commissioners’ Court, pronounces the new road a nearer and better road than the old one, sanctions respondent’s act in opening it, and has received it in place of the old road.</p> <p>The chancellor dissolved the injunction on the coming in of this answer, and his action is now assigned for error.</p> <p>' 1. The injunction should not have been dissolved, because the equity of the bill is not denied by the answer. — Moore v. Barclay, 16 Ala. 158; Calhoun v. Cozens, 3 ib. 503.</p> <p>2. The injury to the complainant’s .ferry is the same, whether the public road leads to it or not. Admitting that the road does not lead to it, still the bill shows the injury, and the answer admits enough to constitute the equity ; admitting a public road, his fencing it, and the injury to complainant. — Barney v. Earle, 13 Ala. 106:</p> <p>3. On motion to dissolve an injunction, whenever it appears that the complainant was entitled to an injunction at the time of obtaining it, but there still remains a dispute be'tween the parties, the injunction is invariably continued until final hearing, or until further order. — Lynch v. Colegate, 2 Har. & John. 36.</p> <p>4. The Commissioners’ Court of Barbour county had no jurisdiction to license the defendant’s toll-gate. Their authority is where the water-course is in their county. — Clay’s Digest, p. 513, §§ 25 to 32.</p> <p>5. A private person has no right, without a charter, to establish a ferry on a public highway ; and the defendant had no legal right, under his contract with Jernigan for his ferry, to be affected by complainant’s ferry.</p> <p>6. If the complainant obstructed the public road in Georgia, he is amenable to the laws of Georgia; and this furnishes no excuse for the defendant’s obstruction of the road in Alabama.</p> <p>1. If the bill has any equity, it is contained in the allegation that a public road, leading to complainant’s ferry, has been obstructed, and the public thereby prevented from crossing at liis ferry. The answer denies that there is any public road leading to liis ferry, and alleges that he has himself changed the public road over worse ground, and increased the distance to Florence. If he has forced the public out of the highway on the Georgia side, by cutting ditches and felling trees across it, to compel them to travel his private way and to cross at his ferry, he cannot, on the failure of such measures, ask relief of chancery. He presents himself in the attitude of a wrong-doer asking the court to sanction his own wrongful act. He made the road run to his ferry by violating the law in changing it; and because he went on the Georgia side, and thus avoided an indictment, he now says there was no wrong in the act because he was out of the jurisdiction. He must come into equity with clean hands, and do equity, before he can ask it.</p> <p>2. The Commissioners’ Court had jurisdiction over the subject-matter, and the toll-gate was properly established.</p> <p>3. The defendant’s obstruction of the road was no injury to the public, since it was put on better ground, and made straighter.</p> <p>4. The bill is not framed for relief against injury to the complainant from obstructing his private right of way.</p>

■ Appeal from the Chancery Court of Montgomery. Heard before the Hon. Wade Keyes. This bill was filed by Robert J. Ware, as executor of the last will and testament of Albert G-. Abercrombie, deceased, against the heirs-at-law of said decedent; asking the court to' construe his will, and to decide upon the validity of the bequests contained in it.

Tried before the Hon. C. W. RapieR. This action was brought by Kelly & Frazier against James T. May, on a bill of exchange of the following tenor: “ Exchange for §416.

<p>[BHi EI EQUITY TO ENJOIN ACTION AT LAW FOB CONTRIBUTION.]</p> <p>1. When equality is equity. — When parties stand in asquali jure, with reference to liabilities arising ex contractu, equality of burthen becomes equity. •</p> <p>2. Horn this equity may be destroyed. — But, although parties are equally bound to bear the burthen of any loss which may accrue from their joint contract, this equality may be destroyed by the act of one party in superinducing the loss, or by their subsequent contract.</p> <p>3. Jurisdiction of equity where remedy at law is plain, adequate, and complete. — A party cannot come into equity to enjoin an action at law for contribution, when his bill shows that he has a plain, adequate, and complete remedy at law, and he does not ask a discovery.</p>

Heard before the Hon. James B. Clabk. This bill ivas filed by the appellant, James L. Simmons, against Thomas R. Williams and William 0.

Thu record in this case shows these facts : On the final settlement of the estate of David Watson, by Solomon Hutto his administrator, on the 10th August, 1853, a decree was rendered in favor of Mrs. Elizabeth Watson, the widow of the intestate, for $514' 15, as her distributive share of the estate ; but as this decree is nowhere set out in the record, its terms cannot bo stated.

Tried before the Hon. Alex. McKihstby, This action, was brought by J. 0. Miller & Oo. against Jamos T. May and Busbrod W. Bell, and the complaint was as follows:— “James 0. Miller and William Miller, partners under the firm of J. 0.

<p>[BILL IN EQUITY FOB DIVORCE — MOTION TO DISSOLVE INJUNCTION.]</p> <p>1. Injunction dissolved for want of equity, and bill retained for other relief. — Whenever the allegations of the hill are not sufficient to warranfthe interference of the court hy injunction, the injunction may properly he dissolved for want of equity, although the hill may he retained for othe'r relief.</p> <p>2. Allegation of wife’s fear, without staling facts, insufficient to enjoin husband’s removal of his property. — Where the wife files a hill against her husband for a divorce a vinculo, and alleges “that she has just cause to fear, and in fact does fear, that upon the filing and service of this bill he will remove or dispose of his whole property”, hut does not state the facts which cause her fears, the allegations are not sufficient to authorize an injunction to prevent the removal of the defendant's property.</p>

<p>Appeal from the Circuit Court of Sumter.</p> <p>Tried before the Hon. B. W. Huntington.</p> <p>This action was brought by the appellant, Norfleet T. Harris, against John W. Bell and Robert J. Allison, to recover damages for the conversion of a slave, named Mary, who, with her husband, was hired by. plaintiff to one Maury, for the year 1852. Maury re-hired the slaves to Allison, for himself and Bell, and the woman died in Allison’s possession before the expiration of the year. It is unnecessary to notice the several points' presented by the bill of exceptions, since the judgment of the court below is here reversed, on account of an erroneous charge, which, with the facts on which it was predicated, will be readily understood from the opinion.</p>

Tried before tbe Hon. JOHN E. Moose. Teial op the right op property in a slave named Jim, between Thomas Henderson, plaintiff in execution, and Mary Thomas, daughter of Athanasius Thomas, the defendant in execution, as claimant. The plaintiff’s judgment was for $432, besides costs, and was rendered on the 1st November, 1841, in the Circuit Court of Benton county; and the execution was issued on the 17th November, and levied on the 6th December, 1847.

<p>[action unber'code for specific recovery of bales of cotton.]</p> <p>1. Mcecution of poma- of appointment. — A. bequest by will to the separate use of a married daughter, by a widow having a life estate with a power of ap- . pointment in favor of her children, is a good execution of the power.</p> <p>2. Qode (§ 2131) inapplicable to separate estates created by will. — Section 2131 of the Code, which requires the wife to sue alone when the suit relates to her separate estate, does not apply to separate estates created by will before the adoption of the Code.</p> <p>3. When husband must sue alone for wife's separaie estate. — "Where a separate estate in a married woman was created by will before the adoption of the Code, and no'trustee was appointed, the legal title passed to the husband, and he alone had the right to sue for the recovery of the property.</p> <p>4. Amendment of complaint.- — When the wife improperly sues in her own name for the recovery of her separate property, the complaint cannot be amended by strilring out her name and inserting that of her husband.</p>

Tried before the I-Ion. Nat. Cook. This action was brought by John M. Bnrke against the appellant, and the complaint was in these words :— “ The plaintiff claims of the defendant #1,500, damages for the price or -value of a negro man slave, named Allen, -which said slave was hired by the plaintiff to the defendant, .on the first day of January, 1852, at the special instance and request of the defendant, to work on said railroad as a laborer ; but the said defendant removed…

<p>[BILL IS EQUITY TO HAVE ABSOLUTE SALE HELD A TRUST OR MORTGAGE.] j</p> <p>1. Variance between allegations and proof. — -Whore the bill alleged a single contract, by which complainant transferred six slaves to defendant, in consideration that he should pay all tho just debts of complainant; while the proof showed that there were two contracts, made on different days, and that defendant promised to pay only those debts which were then in execution,— held, that the bill was properly dismissed on account of the variance.</p> <p>2. Fraudulent contract cannot be established in equity. — Equity will not interfere to declare a contract, which is on its face an absolute sale, to be a trust or mortgage, when the evidence shows that the transaction was intended to defraud the vendor’s creditors. In pari delicto, potior est conditio possidentis.</p> <p>3. Sufficiency of parol evidence to concert written contract of sale into trust or mortgage. Where a parly seeks relief in equity in tho face of a written instrument, asking that an absolute sale may be held a trust or mortgage, he must establish his ease by clear and convincing proof, it is not sufficient to raise a doubt, or suspicion, whether the writing expresses the true contract of the parties; nor is proof by several witnesses of defendant’s subsequent declarations, which are not charged in the bill, sufficient to outweigh the positive denial of his answer under oath, tho writing itself, and tho testimony of the subscribing witness.</p>

Tried before the Hon. Nat. Cook. This action was brought by Anderson Dill, guardian of John Goodwin, minor heir of Thomas Goodwin, deceased, against Joseph Camp, John Bell, anxl Ben. F. Burns, and was founded on the defendants’ note for $125 50, for the hire of two slaves, named Carter and Alexander. The defendants pleaded separately, in short by consent, the general issue, want of consideration, and failure of consideration.

Tried before the Hon. Nat. Cook. This action was brought by Mary Wittiok, the appellant, against Henry Traun, to recover ten slaves — to-wit, Rose, Will, Ann, Caroline, Jim, Lucy, Sarah, John, Eliza, and Martha, together with damages for their detention. The defendant pleaded, 1st, the general issue; 2dly, the statute of limitar tions of sis years ; and his other pleas were as follows “3.

<p>Appeal from the Circuit Court of Dallas.</p> <p>Tried before the Hon. ANDREW B. Moore.</p> <p>This is the action of detinue referred to in the pleadings of the last case. II; was brought by Mary Wittick against Henry Traun, to recover eight slaves. The verdict of the jury, and the judgment thereon rendered at the Fall term, 1852, are set out in the third plea to the complaint in that case, which see. At the Spring term, 1853, the judgment was amended nunc fro tunc, as described in the replication to the third plea ; and from the amended judgment the defendant now appeals, and assigns the same for error.</p>

Mes. Eliza A. Williams, the appellant, having made application for letters of administration on the estate of her deceased husband, James 0. Williams, the guardian ad litem, of the decedent’s minor heirs appeared, and contested her right to administer on the ground of her unfitness. On the trial of this issue, the applicant proved tho death of said James 0. Williams, that she was Ms widow, and that she was over twenty-one years of age, and a resident of this State.

Tried before tile Hon. 0. W. Rapieu.- Tms;action was brought by Davenport & Patterson, as partners, against Thomas H. Robertson, on an open account for $159 33.

■Appeal from the Chancery Court of Montgomery. Heard before the Hon. James B. Clark. This bill was filed by the appellant, Mrs. Eliza Jane Ed-mondson, to enforce a claim to dower, as the widow of John Edmondson, deceased, in certain lots in the city of Montgomery, of which (as the bill alleged) said Edmondson was seized during the coverture, and which were in the defendants’ possession at the filing of the bill.

<p>Appeal from the Circuit Court of Dallas.</p> <p>Tried before the Hon. Nat. Cook.</p> <p>This action was brought bv Robert H. Cowan and Thomas Cowan, against Edward Gantt, for the recovery of a town lot in Selma. The title adduced by the plaintiffs was, 1st, a quit-claim deed from Jesse Beene to Jeremiah Pitman, dated January 14, 1881; 2d, a quit-claim deed from said Pitman to Thomas H. Cowan, dated January 24, 1838 ; 3d, a quit-claim deed from said Thomas H. Cowan to themselves, dated March 4, 183-8; and, 4th, “ oral testimony tending to show that the lot in controversy was the same lot mentioned in said several deeds, and that Jesse Beene was in the possession of the same at the time of his said sale to Pitman.” The defendant then introduced and read to the jury the following documentary evidence of -title: 1st, a patent from the United States to George Phillips and ¥m. R. King, for the section of land embracing'the lot in controversy, dated November 24, 1828 ; 2d, a deed from the coroner of Dallas county to Tarleton Woodall, for the lot in controversy, which had been sold under execution in favor of Jeremiah Pitman against Thomas H. Cowan and John E. Conoley, who was the sheriff of the county, dated October 6, 1845 ; and, 3d, a deed from said Woodall and wife to himself, dated February 18, 1847.</p> <p>This being all the evidence, the court charged the jury,—</p> <p>“ That if they believed from the evidence that both the. plaintiff and the defendant claimed title to said lot from Thomas H. Cowan, then the defendant would be precluded from setting up in defence an outstanding title in a third person.”</p> <p>The defendant excepted to this charge, and asked the following instructions:—</p> <p>“1. That if the plaintiffs rely on a documentary title to said lot, they must show a connected chain of title from the United States Government to themselves, or they cannot recover.</p> <p>“ 2. That if the defendant claims under a judicial sale, he can show an outstanding title in a third person.</p> <p>“ 3. That if the' plaintiffs claim under a quit-claim deed from Jesse Beene,-the defendant can show an outstanding title in a third person — the patentees and their heirs.”</p> <p>The court refused these charges, and to each refusal the defendant excepted ; and he no>v assigns for error the charge given, and the refusals to charge as requested.</p> <p>1. That the defendant could show an outstanding title in a third person, because the plaintiffs, holding under a quit-claim deed, had only a possessory title. — Jackson v. Hubble, 1 Cow-en’s R. 613; Jackson v. Hill, 5 Wend. 532. It is true that one who has had a prior possession may recover in ejectment; but when both parties (not being landlord and tenant) have nothing but a possessory title, there is nothing to prevent the ordinary defence of an outstanding title.</p> <p>2. That the defendant was not estopped from setting up an outstanding title, by any act done by him with plaintiff, or by any relation existing between them, — King v. Stephens, 18 Ala. 475; Badger v. Lyon, 7 ib. 564; Cox v. Davis, 17 ib. 716; Jackson v. Morse, 16 Johns. 197.</p> <p>3. The case of Seabury v. Stewart & Easton, 22 Ala. 207, has no application to this case, because the defendant, in effect, there occupied the position of tenant to the plaintiffs, and was estopped by the relation from setting up an outstanding title.</p> <p>4. It is not shown that Beene, under whom plaintiffs claim, had any title, or exorcised acts of ownership. The plaintiffs, therefore, were disseizors and trespassers against the legal owner, and cannot recover even of a trespasser. — Bradstrect v. Huntington, 5 Peters, -102; Knox v. Kellock, 14 Mass. 200; Wolcott v. Knight, 6 ib. 418; Prop. Ken. Pur. v. Springer, 4 ib. 416.</p> <p>5. Thomas H. Oowan only hold a possessory title, while the defendant was in possession, and held the coroner’s deed. Ejectment cannot be maintained upon mere possession against adverse documentary title. — Xíallett v. Eslava, 2 Stew. 115.</p> <p>6. The plaintiffs, relying as they they did on documentary title, were bound to show a complete chain of title from the United States to themselves ; and this they failed to do. — 2 Stew. 115; 8 ib. 60; 1 ib. 298; Stevens v. King, 21 Ala. 429; Brock v. Tongue, 4 ib. 587; Hines v. Greenlee, 3 ib. 73; 2 Port. 280.</p> <p>contended that, where the plaintiff and defendant claim through the same source, or a common vendor, the defendant is estopped from setting up an outstanding title, and the plaintiff is relieved from the necessity . of tracing Ms title back beyond the common vendor ; and cited the following cases: Pollard v. Cocke, 19 Ala. 188 ; Seabury v. Stewart & Easton, 22 ib. 20*7 ; Cooper y. Gal-breath, 3 Wash. O. 0. 549.</p>

Heard before the Hon. W. W. MasoN. This bill was filed by Thomas G. Lyle agaiust John Garrett, Bartholomew B. Moore, Allen McWalker, and the heirs-at-law of William Vann, deceased; and its object was, to obtain a divestiture of the legal title to a certain tract of land, and a perpetual injunction of an action at law instituted for its recovery.

Tried before the Hon. Charles W. Rapieb. This action was brought by Henry D. Blair, trading under the name and style of H. D. Blair & Go., against 0.

IN the matter of the estate of Martha Andress, deceased. Stephen D. Andress, the appellee, filed his petition in the Probate Court, in May, 1854, alleging that, in March, 1852, said Martha Andress, then the wife of the petitioner, departed this life, being possessed in her own right of property to the amount of several hundred dollars in value; that she made a nuncupative will, bequeathing all her property to the petitioner ; that said will was admitted to probate by said…

<p>Appeal from the Chancery Court of Wilcox.</p> <p>Heard before the Hon. Wade Ketes.</p> <p>This bill was filed by the appellant, John S. Williams, against Willis Sturdevant, to obtain the rescission of a contract for the purchase of a large tract of land, on the ground of fraud on the part of the vendor. The entire tract purchased contained about five hundred and fifty acres, of which a forty-acre tract was omitted from the conveyance. The bill alleges that this omission was fraudulent — that the vendor, as he well knew at the time of the contract, did not have the legal title to this tract, and knowingly concealed that fact from the complainant; and that when complainant, on discovering the defect in his conveyance, applied to said Stur-devant for the re-payment pro rata of the purchase money, the latter confessed that he had knowingly sold the land when he had not the legal title. It further alleges, that the legal title to said tract is in one Jesse Reeves, who was defendant’s vendor ; that an execution against said Reeves has been levied on the tract; that complainant, since the levy of the execution, has tendered back the land, and demanded a rescission of the contract; and that defendant has refused to rescind.</p> <p>The defendant answered the bill; admitting the contract of sale as alleged, and denying all the allegations of fraud. He states that he purchased all the lands from said Reeves, and received his conveyance for the same ; that when he sold the lands to complainant he supposed that he had the legal title to the entire tract; that he is an illiterate man — not being able to read or write ; that the forty-acre tract in dispute was, through mistake, omitted out of the deed from said Reeves to himself, and the mistake was afterwards carried into his deed to complainant, — the description of the land being copied from one deed into the other ; that he know nothing of the mistake until informed of it by complainant a short time before the filing of the bill; that complainant only informed him that there was a mistake, without pointing it out, and insisted on a rescission of the entire contract; that so soon as he ascertained, through the assistance of a friend, in what the mistake consisted, he immediately had a corrected deed prepared, and despatched a messenger with it to said Reeves, who had removed to Arkansas; that Reeves signed the corrected deed, conveyingsaid tract of land'to respondent, wbo then executed a corrected deed to complainant, and tendered it to Mm. And these corrected deeds are made exMbits to the answer.</p> <p>The contract of sale was made in October, 1846, and the bill was filed in May, 1850.; while the corrected deeds exhibited with the answer bear date the 14th June and 15th July, 1850. The testimony in the case fully sustains the allegations of the answer as to the mistake and omission in the description of the land.' It was admitted, as appears from an agreement of record, that a judgment creditor of said Reeves had levied on the land, that he was enjoined by the defendant, and that the injunction suit was still pending and undecided when this cause was heard. On final hearing, the chancellor dismissed the bill, and his decree is now assigned for error.</p> <p>1. That the contract between the parties was entire, and could not be severed without consent; and the appellant was therefore entitled to the whole of the lands purchased,- and might refuse to take a part only.</p> <p>2. That the corrected deed of Reeves could not convey a good title, because his creditors had acquired liens on the land by actual levies. The interposition of chancery was necessary; and when this cause was heard, the power of that court, though invoked, had not been exercised; and on final hearing, if the court should refuse the injunction, the land will be sold. The chancellor, therefore, should have either decreed a rescission of the contract, or should have continued ■ the case until the suit against the attaching creditor was disposed of.</p> <p>8. There is no proof in the record that the deeds ever were corrected. The exhibits, purporting to be copies of the corrected deeds, are not shown to have been proved, or even offered in evidence.</p> <p>4. If the dismissal of the bill was correct, the costs should have been awarded against the defendant, because the complainant had just cause for filing 'his bill; and if the title was ever perfected, it was not done until after the bill was filed. The decree, therefore, even if affirmed, should be varied as to the costs. — Alexander y. Alexander, 5 Ala. 517; Gray v. Gray, 15 ib. 779.</p> <p>contended, among other things, that the variance between the allegations and proof was fatal to the relief sought by the bill; and cited the following cases: Pierce v. Brassfield, 9 Ala. 973 ; Graham y. Tankersley, 15 ib. 634; Julian v. Reynolds, 11 ib. 960; Ansley v. Robinson, 16 ib. 793.</p>

Tried before the Hon. Robert Dougherty. ■This action was brought by Thomas T. Rodgers against William Foster, in September, 1851, to recover damages for a breach of warranty in the sale of fifty-two… Held: in an action for a breach of warranty, that interest was necessarily included. The charge asked, therefore, should have been given.

<p>[PROCEEDINGS IN PROBATE COURT POR ELEVATION OP MILL-DAM.]</p> <p>1. In summary proceedings, record must affirmatively show compliance with statute.— Where a special and limited jurisdiction is conferred by statute, upon either an individual or a court, the record must affirmatively show a compliance with all the requisitions of the statute.</p> <p>2. Inquest of jury, on writ of ad quod damnum, hdd insufficient. — The writ of ad quod damnum in this case was issued on an application to the probate court for tho elevation of a mill-dam already erected (Code, §§ 2089-98); and tho inquest of the jury was quashed, because, 1st, tho return did not show that the jury were sworn by tho sheriff “ to discharge their duties fairly and to the best of their ability” ; 2dly, it did not show that they were charged by the sheriff as the statute directs; and, 3dly, it did not respond to the matters which the statute requires them to investigate.</p>

<p>Appeal from the Circuit Court of Baldwin.</p> <p>Tried before the Hon. 0. W. Rapier.</p> <p>This action was brought by George G. Henry against the administrator of William T. Powell, deceased, in October, 1853, to recover the amount of a judgment rendered in said court on the 13th April, 1840, in favor of the plaintiff and against said Powell, for §483 61, together with the costs of suit and interest. The defendant pleaded “ the general issue,” and payment.</p> <p>On the trial, after the plaintiff had introduced the record of his judgment,’ the defendant read in evidence the deposition of one 'William H. Lee, and the plaintiff’s answers to interrogatories propounded to him under the statute ; the substance of which evidence may be thus stated : The plaintiff was a merchant in Mobile in 1840, and Lee was employed by him as a clerk in his store from about December, 1840, to June, 1841; being then a mere lad, and just commencing to learn business. Learning that a Mrs. Tate was claiming Powell’s property, and was paying off his debts, plaintiff sent Lee to her to demand payment of his judgment, with instructions to take a draft on her commission merchant, if he could not get the money ; but Lee, through want of experience in business, took from her, as collateral security, a note on one D. N. Harris, for §400, payable to himself, and gave her a receipt for the debt, except as to a small balance due. Lee states that he had no authority to take the note, that he only took it as collateral security, and that his .employer was much displeased with him on account of it. The plaintiff states that, on making inquiry at the time, he learned that Harris was insolvent, and therefore regarded the note as worthless; that he notified Powell of this, and afterwards had execution issued on his judgment; that he afterwards obtained another note from Harris, of the same date, amount, and falling due at the same time, intending to return it to Mrs. Tate in place of the note which Leo had taken from her, but he neglected to do this, and still has the note in his possession. After the defendant had read this evidence to the jury, the plaintiff introduced a witness, who testified to facts conducing to show that Harris was insolvent from 1840 to 1853; but the witness stated, also, that he could not say from his own knowledge that Harris was insolvent, nor did he know of any debts outstanding against Mm.</p> <p>On this evidence, the court charged the jury as follows:—</p> <p>“ 1. That if Lee, the agent of Henry, exceeded his authority in making the settlement, Henry was not bound by it, unless he had subsequently recognized it.</p> <p>“•2. That though the receipt, of itself, was prima facie evidence of payment, it might be explained ; and if the note of Harris was in fact taken as collateral security only, and not as payment, and the jury believed that the note was worthless, then Henry was not bound to sue on it.”</p> <p>The defendant did not except to these charges, but requested the court to give the following:—</p> <p>“ 1. That Lee, being the agent of Henry, and in possession of the account, was authorized to make the settlement, unless repudiated by Henry ; and his refusal to be bound by the settlement should have been made known, within a reasonable time, either to Mrs. Tate or to Powell.</p> <p>“ 2. That Henry giving no notice to Mrs. Tate or Powell of his refusal to recognize the act of Lee in the settlement, Mrs. Tate or Powell had a right to presume-that it was satisfactory, and that the debt was paid.</p> <p>“ 3. That Lee’s acts were binding on Henry, to the extent of the settlement, unless the extent of his authority was made known either to Mrs. Tate or Powell.</p> <p>“ 4. That the retention of the note by Henry, from April, 1840, until 1853, without a rescission of the settlement, — returning the note, and notifying Mrs. Tate or Powell of the fact, — might be regarded as a payment of the debt.”</p> <p>The court refused these charges, and the defendant excepted to each refusal; and he now assigns these matters for error.</p>

The transcript in this case was brought up to tho June term, 1858, and a decision was here rendered at June term, 1854, which may be found in 25 Ala. 109.

<p>Appeal from the Circuit Court of Coosa.</p> <p>Tried before tlie Hon. Nat. Cook.</p> <p>This was a trial of the right of property in several yokes of oxen, a large quantity of lumber, and other articles of personal property, on which an attachment had been levied at the suit of Fortunatus S. Webb against Church & Skinner, and a claim interposed under the statute by the appellant. When the cause came on for trial, and after the plaintiff had announced himself ready, the claimant applied for a continuance on account of the absence of a material witness, and in support of the application submitted the affidavit of L. B. Moody, who swore “ that Joseph S. Winter is a material witness for the claimant, has no interest in the result of this case, has been subpoenaed and does not attend, and is not absent by the procurement or consent of claimant”; and then stated the material facts which said witness, if present, would prove. “ The plaintiff admitted, that said witness, if he was in coiirt, would swear to the facts set forth in said affidavit. Plaintiff also proved, that said witness, in the spring of the year 1850, was a member of the board of directors of said company. Plaintiff objected to the claimant's reading said affidavit to the jury as evidence, because of the interest of said witness in the result of this suit; which objection the court sustained, and ruled out said testimony.” The claimant excepted to this ruling of the court, and now assigns it for error.</p> <p>1. That the admission made by the plaintiff below, under the 16th rule of practice (Code, p. 715), was an admission that the facts stated in the affidavit were absolutely true. The language of the rule (“ If the adverse party will admit what, it is so alleged, such absent witness will swear,” &c.) admits of no other construction; and it was obviously intended that the party applying for a continuance should have the benefit of the facts which he desired to prove, — a benefit of which he would be entirely deprived, if he could be forced into a trial, while his adversary had the right to prove that the facts stated in the affidavit were not true, or that his witness was not worthy of credit.</p> <p>2. One of the facts stated in the affidavit was, that Winter, if present in court, would swear that he had no interest in the result of the suit. If the witness had personally sworn to this fact, his testimony could not have been excluded.— Dent v. Portwood, 17 Ala. 245.</p> <p>3. The evidence was not sufficient to raise a presumption that the witness was interested. — Cleland v. Huie, 18 Ala. 346.</p> <p>insisted, 1st, that as the evidence showed that Winter was a director (and therefore a stockholder) in the spring of 1850, the presumption was that he was a stockholder at the time of the trial; and, 2dly, that a stockholder is not a competent witness for a private corporation. They cited, to the first point, 1 Greenl. Ev. § 4i • and to the second, ib. § 333.</p>

Wade Keyes. This bill was filed by Wm. H. Weed & O^feáaJaáarfent creditors of James E. Warren, to redeem certain lots in the town of Clayton, which had been sold under mortgage executed by said… Held: that the complainant was entitled to the relief prayed. A reference to the master was ordered of the matters of account, and his report was confirmed without exception. The chancellor’s decree is now assigned for error. 1.

In the matter of the estate of Amos Pickle, deceased, which was reported and declared insolvent on the 21st March, 1853.

<p>[BJIX IN EQUITY YOB SMSCnTC RECOVERY OF SLAVES.]</p> <p>JSxecutory contract of sale construed — Articles of agreement, bipartite, whereby the party of the first part “ doth hereby agree to bargain, sell, and convey,” unto tlje party of the second part, certain slaves, in consideration that the party of the second part “ hereby delivers lo the said” party of the first part, “ by order, all his right, title, and interest, both in, law and equity, to the sum of $2,000”, part of an amount just recovered from the United States hy an agent of the party of the second part; and conditioned, that if the said party of the second part “ will, by any means, with or without suit, either in law or equity, enable the said” party of the first part uto recover said sum of $2,000, with lawful interest,” from said agent, then the said party of the first part, “ hinds himself, his heirs, executors, &o., that the above bill of sale shall be absolute, and shall convey unto him, his heirs, executors, Sfc., all right, title, and interest in, said slaves ; otherwise, to be void and of no effect,” — held neither a mortgage, nor an absolute sale, hut an agreement to sell, which did not, joer se, pass the legal title to the slaves.</p> <p>2. Equity jurisdiction, where remedy at laxo is plain, adequate, and complete. — If the owner of slaves allows them to go into the possession of an intended purchaser, under an executory contract of sale, which does not pass the legal title, he may recover them by action of detinuo; hut whether he proceeds for the slaves themselves, or for their agreed price, his remedy is at law, and he cannot como into equity.</p>

Tried before the Hon. Alex. McKiNstex. This suit was brought by Wm. Jones, jr., against Charles W. Dorrance, to recover rent accruing on a demise by plaintiff to one Kenneth King of a certain storehouse in Mobile.

Heard before the Hon. Wade Keyes. The original bill in this case was filed by Sarah Murphy against Joseph Barefield, and alleged the following facts: That on the 2d day of January, 1848, one Duncan W. Murphy, being in possession of two slaves (Bill and Suckey), and being indebted to Mrs. Nancy Harris in the sum of §2,297 60, mortgaged said slaves to her to secure said debt) and a copy of the mortgage, marked “ exhibit A”, is appended to the bill; that Mrs. Harris took…

<p>Appeal from tbe Circuit Court of Pickens.</p> <p>Tried before tbe Hon. E. W. Pettus.</p> <p>This action was brought by John Morton against John Bradley, and the original complaint was as follows:— •</p> <p>“ Tbe plaintiff claims of tbe defendant §2,500, as damages for wrongfully killing a negro man slave, named Spencer, the property of tho plaintiff, by shooting him with a gun, to-wit, on the lltli day of April, 1854, in the county aforesaid.”</p> <p>The defendant demurred to this complaint, assigning as the ground of his demurrer “ that in the killing of said slave, as alleged in the, complaint, the defendant committed a felony, and the complaint does not show that he was prosecuted therefor before the commencement of this action.” The court sustained the demurrer, but gave leave to the plaintiff to amend his complaint; and the complaint was thereupon amended by the addition of another count, in which, after repeating the previous allegations, the .plaintiff averred “ that afterwards, to-wit, at the Eall term, 1854, of-the Circuit Court of said county, a prosecution was instituted against said defendant, before the grand jury for said county, at said term, and said grand jury did refuse to find a true bill against him for the killing of said slave; by means whereof this action accrues to plaintiff.”</p> <p>To the amended complaint the defendant interposed another demurrer, and assigned the following grounds of demurrer : “ First, that in the killing of said slave, as alleged in said complaint, the defendant committed a felony, and said complaint does not show that he has been tried upon an indictment therefor ; and, secondly, said complaint does not show that there has been any sufficient prosecution for said killing, to enable the plaintiff to maintain his said action.”. The court sustained this demurrer, and again granted the plaintiff leave to amend his complaint; and another count was then added to the complaint, containing this averment: “ And plaintiff avers, that afterwards, to-wit, at the Fall term of this court, 1854, lie instituted a prosecution against the defendant, for ■said alleged killing, before the grand jury for said county,' and caused diligent inquiry to be made by said grand jury, whether said alleged killing was a felony, and whether said defendant, by said killing, was guilty of a felony ; and said grand jury, after diligent inquiry into said killing, did refuse to find any bill of indictment against said defendant, for any offence for killing said slave. And said plaintiff further avers, that said killing was not, by the laws of this State, a felony.”</p> <p>To the complaint, thus amended, the defendant again demurred, on the following grounds : “ First, that from the killing of said slave, as alleged in said amended count, the law presumed that a felony was committed, and yet said complaint does not show that said defendant, before the commencement of said action, was tried and convicted, or acquitted, therefor, nor said killing ; secondly, that the allegation that said killing was not a felony, is not sufficient to rebut the presumption that said killing was a felony ; thirdly, that the allegations in, respect to the action of the grand jury are not sufficient to rebut the presumption that said killing was a felony ; fourthly, that said count does not show any sufficient prosecution of said defendant, nor said killing, to enable plaintiff to maintain his said action; fifthly, that the allegations of said amended count, in respect to said prosecution before said grand jury, are not sufficient to enable plaintiff to maintain his action.” The court again sustained the demurrer, and, the plaintiff declining to make further amendments, rendered judgment for the defendant.'</p> <p>The rulings of the court on the several demurrers are now assigned for error.</p> <p>cited the case of Nelson v. Bondurant, 26 Ala. 341.</p> <p>contended, that the several demui’-rers were properly sustained, because neither count in the complaint showed in what county the slave was killed, nor in what county the grand jury, investigated the case, and therefore failed to show a sufficient prosecution ; that as no county was named either in the caption, margin, or body of the complaint, there was nothing to which the words “ the county aforesaid” could apply; and that they could not be referred to the county named in the summons, because the summons and complaint are distinct things, and not parts of each other.</p>

<p>[MOHOS TO DISMISS APPEAL.]</p> <p>1. Security for costs held insufficient.- — An obligation, on the part of the appellant’s surety, to pay the costs of the appeal “if the judgment is affirmed”, is not a compliance with the statute. — Code, § 30-11.</p>

Tried before the Hon. C. W. Rapier. The defendant in this case was summoned “ to answer the complaint of James Williams, administrator of Edward Williams, deceased”; and the complaint was as follows: “ James M. Williams, adm’r of' Edward Williams, dec’d, vs, William R. Agee.

<p>[BILL IN EQUITY BY HEIRS-AT-LAW AGAINST DEYISBES — ISSUES AT LAW TO TEST • VALIDITY OE WILL AND DEED OE GIFT.]</p> <p>1. Order directing issue at lam interlocutory merely. — An order in chancery directing an issue at law is interlocutory merely, and may therefore be set aside at a subsequent term.</p> <p>2. When new trial may he refused. — Although the inheritance is concerned, a new trial of the issue may be refused to the heir, notwithstanding the erroneous rulings of the court trying- the issue, when, on all the evidence in the case, if the verdict of the jury had been against the validity of the will, a new trial should have been awarded.</p> <p>3. Error on trial of immaterial issue vxn-lts no injury. — 'Where issues at law are directed to try the validity of a will and of a deed of gift, which are so connected by words of reference that if the will is valid the deed cannot be held invalid, and the verdict of the jury establishes the validity of the will, the trial'of the other issue is an immaterial matter, and its regularity will not be looted into on error.</p> <p>4-, Costs.' — Where the verdict is in favor of the will, and the court trying the issue erroneously renders judgment for the costs against the heir, besides certifying the costs to the chancellor, by whom also they are decreed against the heir, the error is without injury.</p>

<p>Appeal from the Circuit Court of Montgomery.</p> <p>Tried before the Hon. JohN G-jll Shorter.</p>

Tried before the Hon. ANDREW B. Moore. Trial op the right op property in a slave named Jenny, and her two children, who had been levied on under execution in favor of tlio appellee against Athanasius Thomas and William Thomas, and a claim interposed by Mary Thomas, who was a daughter of said Athanasius.

Tried, before the Hon. Geo. D. Shortridge. Robert Maxwell, the appellant, was indicted at the March term, 1854, for retailing without a license; the indictment charging that he “ sold vinous or spirituous liquor without a license and contrary to law”, and that he “ sold spirituous liquor to one George Taylor, a person of known intemperate habits, by the quart, without a license and contrary to law.” On the trial, as the bill of exceptions states, “ the State proved that the…

<p>Appeal from the Court of Probate of Mobile.</p> <p>IN the matter of the estate of Charles McCullough, deceased, which was declared insolvent on the 22d March, 1852. Among the claims which wore filed against said estate, within the time prescribed by the statute and the order of the court, were the claims of J. & L. K. Bridge & Co. and J. & G. 0. Alexander & Co., who are the appellants in these two cases; and to the allowance of their claims no objection was raised. On the 5th December, 1854, no person having been nominated to the court by the creditors of the estate as administrator de bonis non, the former administrators were continued in office; and the court then rendered a decree, allowing the claims filed against the estate to which no objections had been made, and citing the administrators “ to a final settlement of their accounts, and a distribution of the proceeds of said estate, as by law required, on the 9th December, inst.”</p> <p>On the day appointed, all the parties interested in the es-’ tato being present, the court proceeded to audit and examine the accounts and vouchers of the administrators, ascertaining the amount of money in their hands, and the credits to which they were entitled.' The administrators then filed a written motion, “ to postpone the payment of the ela|íns.of J. &L. K. Bridge & Oo. and J. & G. 0. Alexander out of the assets of said estate, until after the payment of the claims of the individual creditors of said McCullough, because said claims are debts due by the firm of Coffin & McCullough, which was composed of said McCullough and C..G-. Coffin; that said Coffin is now surviving, and the personal assets in the hands of said administrators are not more than sufficient for the payment of the individual creditors of said McCullough; and that said Coffin, as -surviving partner, received funds, after said McCullough’s death, belonging to said firm, and administered the same.” The appellants “ objected to the right of said administrators to interpose in this case, at this time, with any such motion, and moved the court that the same be taken from the files of the case; but the court overruled their motion, and said plaintiffs excepted.”</p> <p>The administrators then offered evidence in support of their motion, to the introduction of which the appellants objected ; but the court overruled their motion, and they thereupon excepted. Evidence was adduced by both parties, in support of their 'respective positions, on the facts involved in the administrators’ motion, and several exceptions were reserved to the rulings of the court on the evidence; but it is unnecessary to notice these matters, as they are not passed upon by this court. On all the evidence adduced, the court sustained the motion of the administrators, and postponed the payment of the appellants’ claims until after the separate debts had been fully satisfied : holding, that these claims were partnership debts, that the moneys in the hands of the administrators were not sufficient to pay all the individual debts in full, and that there were partnership assets in the hands of the surviving partner ; and the appellants excepted to this decision.</p> <p>Each of the appellants sued out an appeal from the 'decree of .the court postponing their- claims, and here assigned-for error the several rulings of the court above ,stated ; and the two causes were argued and submitted together-'.</p>

Berob from the Circuit Court of Chambers. Tried before the Hon. Nat. Cook. This action was brought by Larkin E. Gunn against Isaac Howell, to recover the proceeds of certain promissory notes, amounting in all to about $2,500, which plaintiff had placed in defendant’s hands for collection. The declaration contained a special count on the contract, and the common money counts.

Tried before the Hon. G. W. Rapier. This action was brought by Jacob Heim against John Roberts, to recover damages for the defendant’s wrongful act in causing an attachment’against Frederic Heim to be levied on plaintiff’s goods, whereby plaintiff was compelled to institute an action at law for their recovery, in the prosecution of which he necessarily expended a large sum of money, and sustained great loss in his credit and business by the withdrawal of the same from his…

<p>[IST MATTER OP AX INSOLVENT ESTATE — CLAIM RREPEItliED BY SURVIVING PARTNER.]</p> <p>1. Covenant by continuing partner to pay outstanding partnership debts. — On tlio dissolution of a partnership, if tlio remaining partner, who takes all the goods and partnership effects, covenants to become solely responsible for the outstanding partnership debts, tho covenant is not one of indemnity merely, but binds him to discharge tho retiring partner within a reasonable time from all liability for the debts; and if he dies without complying with his engagement, and his estate is declared insolvent, the retiring partner has a claim against the estate to the amount of the outstanding debts.</p>

ERROR from the Circuit Court of Chambers. Tried before the Hon. Ezekiel Pickens.

<p>Appeal from the Court of Probate of Pickens.</p> <p>IN the MATTER of the estate of W. C. Dunham, deceased.</p> <p>The record discloses the following facts: At a regular term of the court, held on the 13th March, 1854, “ came Alexander B. Clitherall and Andrew J. Roberts, and moved the court to appoint them administrators on the estate of saidW. C. Dun-ham, deceased, and that they give separate bonds in equal amount; and it being made known to the court, by the said Alex. B. Clitherall, special attorney of Melissa C. Dunham, that the said Melissa, widow of the said deceased, relinquishes to said applicants her claims of the said administration, and no person else objecting thereto, it is ordered,” &c., that said Clitherall and Roberts be appointed administrators of said estate, upon their entering into bond with good security. Thereupon said administrators filed their bonds, which were approved by the court, and entered on the discharge of their duties.</p> <p>On the 30th March, 1854, Clitherall filed his written resignation of his office as administrator, which was accepted by the court; and on tbo same day Mrs. Melissa 0. Dunham, the widow and relict of the deceased, filed her written petition in the court, asking the removal of Roberts from the administration, and the grant of letters of administration to herself. Her petition states, that said W. 0. Dunham died, on or about the 21st day of February, 1854, in the State of New York, intestate, and leaving personal property in said county of Pickens, which was his domicile ; that the petitioner is his widow, is a resident of said county, is of lawful age, is fully competent to discharge the duties of administra-trix of her said husband’s estate, and has never relinquished her right to the administration as required by the statute ; that letters of administration on said estate were granted by said court, on the 13th March, 1854-, to said Clitherall and Roberts, as appears by the records of said court to which reference is, prayed, but petitioner is advised that their appointment was null and void, and that she is by law entitled to the administration, and is ready to give bond as by law required; and that Clitherall has resigned his said office. The prayer of the petition is, that the letters of administration granted to Roberts' may be revoked and set aside, and that letters of administration may be granted to the petitioner, because, 1st, “ she is the widow of the decedent, fully competent, legally qualified, and by law entitled to administer on his estate”; 2dly, “ said Roberts was illegally appointed, and not entitled by law to said administration”; 3dly, “ said Roberts has not given such bond as is by law required”; 4thly, “said appointment was coram non judice, illegal, and void, and there were no proceedings in writing in said court, nor any written application on the part of said Roberts made or filed”: and, 5thly, “ the death of said W. C. Dunham was not here known, nor to the widow, until about the 23d of February last, and forty days have not elapsed since his death was here known.”</p> <p>Roberts, being duly notified of the filing of this petition, appeared in court, by his attorney, on the 4th May, 1854, and filed his demurrer to the petition, assigning as grounds of demurrer, 1st, “that the petition shows that letters of administration have been .granted by this court, at a previous term thereof, to Alexander B. Clitherall and this defendant, and does not allege any of the causes on account of which this court is authorized to revoke the same” ; 2dly, “ that said petition does not show that the petitioner is one of the parties or persons authorized by law to ask a revocation of letters of administration” ; and, 3dly, “that said petition shows that the whole matter incorporated therein has been previously adjudicated in this court, and between the same parties, and cannot bo reviewed and reversed by this court.”</p> <p>The court sustained the demurrer, and dismissed the petition ; and its ruling is now assigned for error.</p>

Heard before the Hon. James B. Clark. This bill was filed by Thomas II. Wiley, the appellant, who alleged in his bill that ho was a resident citizen of Dallas county ; asking a divorce from his wife Ruthy, on tho ground of her voluntary abandonment of his bed-and board, and residing separate and apart from him in Perry county.