Volume 29 — Alabama Reports

Tried before tbe Hon. Thomas A. Walker. The proceedings in this case were instituted before a justice of the peace, on the complaint of Susannah Winsted, that the defendant was the father of a bastard child of which she had been delivered. The affidavit, on which the justice’s warrant was issued, did not state that the said Susannah Winsted was a single woman, nor that the child was begotten or born in the county of Fayette; but the warrant itself recited these facts.

From the Circuit Court of Pike. Tried before the Hon. E. W. Pettus. Indictment against Philemon J. Franklin for the murder of his brother, Christopher Franklin, by shooting him with a gun. The only evidence in relation to the killing was the testimony of a young man, then about sixteen years of age, who was an eye-witness of it, and whose testimony, in substance, is stated in the opinion of the court.

FROM the Circuit Court of Barbour. Tried before the Hon. E. W. Pettus. The prisoner was indicted for the murder of Martha L. Yining, a white child between seven and eight years old, and was convicted.

Erom the Circuit Court of Barbour. Tried before the Hon. Edmund W. Pettus. The indictment in this case charged “ that Anthony, a slave, the property of Elias G-. Hodges, did attempt to poison Elias G-. Hodges, a white person, and Mary C. Hodges, a white person, against the peace and dignity of the State of Alabama.” The record does not show that the prisoner demurred to the indictment, or that he moved in arrest of judgment.

Tried before the Hon. Alex. McKinstry. This indictment was found at the April term, 1856, and contained but a single count, which charged that the defendants “willfully burned certain property, to-wit,” (describing the bar, shelves, fixtures, Ac., of a certain building in the city of Mobile, called “The Constitution,”) “which said bar, fixtures,” &c., “ were then and there the property of the said Martin, and then and there insured by the Mobile Navigation and Mutual…

From the Circuit Court of Shelby. Tried before the Hon. Nat. Coop.

FROM the Circuit Court of Coffee. Tried before the Hon. E. W. Pettus. The prisoner, who was a slave, was indicted for the murder of another slave, and was convicted. He reserved-several exceptions, during the trial, to the rulings of the court in empaneling the jury; and these rulings, which will be readily understood from the opinion, are now relied on to reverse the judgment. 1.

Feom the Circuit Court of Coosa. Tried before the Hon. Robert Dougherty. This indictment was in the general form allowed by the Code.

<p>Eeom tbe Circuit Court of Bibb. .•</p> <p>Tried before tbe Hon. Robeet Dousheety.</p> <p>The indictment in this case was in tbe general form allowed by the Code,.and tbe facts disclosed by the bill of exceptions are as follows: “That tbe defendant and one Carson, within 'twelve months before the finding of the indictment, played a game with cards in the back room of a house on the road near the public bridge over the Cahaba river in said county; that there were two rooms in said house, one fronting the public road which passed over said bridge, and the other in the back part of the house; that said rooms were separated by a partition, in which there was a door connecting them; .that said playing took place in the back room, which was the bed-room in which defendant slept and staid, and which was as private as any other room ; that said Carson, at the time of said playing, was at said house on a friendly visit to defendant, and went there by defendant’s invitation; that the only door to said room (the door in said partition) was locked during the said playing, and the curtains to the windows were drawn, so that no person could see into said room while said playing was going on. There was no evidence to show that any person, except defendant and. said Carson, was in or about said house, or in or near the premises, or passing said road, while said playing was -going on. It was in evidence that said house was built about three years before the trial of this cause, by one Gillespie, who then owned said: bridge; that be occupied it while he kept said bridge, which was proved to be a public toll-bridge; that said house had since been occupied by persons who kept said bridge, of which defendant was the keeper when said playing took place; and that the custom of the keepers of said bridge was, to receive the toll due for crossing outside and in front of said house, and not in said room. But it was proved by one Robert Hill, that he once went into the front room of said house, before defendant kept such bridge, and paid toll there; that defendant was not present, at that time; that said Hill went into said front room as he would have gone into the private dwelling-house of any other friend or neighbor; that he also • saw other persons occasionally go into said front room, but did not know whether they went in by invitation, as friends, or on business; that he never saw any other person transact business in said front room, but had seen several persons pay toll in front of said house on the road.”</p> <p>The State then introduced as a witness one Felix Shrop-shear, who testified, “that he had been in the habit of frequently passing over said bridge; that he had paid toll at said bridge, but did not recollect that he had ever paid toll in the front room of said, house more than once, and then defendant was not present, nor the keeper of said bridge; that he then saw books in said room, in one of which an account was entered against him for toll, which he then paid; that he had seen no other person pay toll in said front room, but had frequently seen them pay toll outside of said house, and in front thereof.” William Schooler testified, “that he had once paid an account for toll, in said front room; that he saw the keeper of said bridge in Centreville, and told him that he would soon be over to pay his toll; that he accordingly went over, and went into said front room, and settled his toll from the books in said room; that he saw in said books accounts against several other persons for toll for crossing said bridge; that defendant was not then present, nor was he then the keeper of said bridge. Said Shropshear and Schooler both testified, further, that they went into said front room as they would have gone into any friendly neighbor’s dwelling-house, and as they would have gone into a public store.” Benjamin Glass testified, “that he was keeper of said bridge after defendant, and received from Mm, in the front room of said house, the books in which were kept accounts for toll for crossing said bridge.” “There was no evidence that said back room, in which said playing took place, was ever used for any other purpose than as a private bed-room, or that it was ever used by any person who did business in said front room, except as and for a private bed-room, or that there was any connection whatever between said rooms, except as shown. It was in evidence, also, that said front room was used as a sitting-room, in which the occupant of said house entertained the friends who visited him; that said house had been built about three years, was some twenty-five or thirty yards from the end of said toll-bridge, and had always been used and occupied by the person who kept said bridge and received the toll thereof; and that the defendant, at the time said playing took place, kept said bridge, received the tolls, and occupied the house as aforesaid, but liad no family, and boarded in Centreville.”</p> <p>“This was all the evidence; and thereupon the court charged the jury, that if they believed the evidence, they must find the defendant guilty; to which charge the defendant excepted.”</p>

<p>[MOTION FOB MANDAMUS — SECUEITY FOB COSTS BY NON-BESIDENT PLAINTIFF.]</p> <p>1. Construction of statute requiring security for costs from non-resident plaintiff. — The statute which requires the dismissal, on motion, of a suit commenced by a non-resident without first giving security for costs, (Code, § 2396,) doesnot apply to a suit instituted by a non-resident nominal plaintiff, for the use of a resident, although the complaint shows that the action ought to have been brought in the name of the beneficiary.</p>

In this case, ¥m. J. Greene, the comptroller of public accounts, and William Graham, the State treasurer, made application, in behalf of the State, for a, writ of prohibition from this court, to restrain further proceedings in a certain suit instituted in the chancery court at Mobile, by the Mobile and Ohio Railroad Company as complainants, against the rela-tors, the State of Alabama, and the governor of the State.

From the City Court of Mobile. Tried before the Hon. Ales. McKinstry. The indictment in this case was against Wm. R. Johnson and one Anderson, and contained three counts ; the first two for obtaining money under false pretenses from one J. R. Thomas, and the third for larceny from the person.

<p>MotioN for a mandamus to tbe Circuit Court of Madison, Hon. John E. Moore presiding, to require that court to compel an answer to certain interrogatories in aid of a discovery at law; which the party to whom they were propounded, declined to answer, on the ground that they were impertinent and irrelevant, and he therefore demurred to them; and which the court refused, on motion, to compel him to answer. The plaintiff in the action, by whom the interrogatories were propounded, excepted to the ruling of the court on his motion; and the record of the proceedings is made a part of his present application.</p> <p>The interrogatories which the defendant below refused to answer, assumed that he, in the lifetime of plaintiff’s intestate, had made a will, by one clause of which he had given said intestate certain property, in consideration of services rendered, upon condition that said intestate would set up no claim against his estate for such services; and these services are the foundation of the action. It is not contended, that such a clause in a will would be operative to pass any right to the property, or be a foundation for any right of action; but it is insisted, that it is competent evidence, as an admission by defendant that the services had been previously rendered for Mm by the intestate, and that he then owed for them. — Jennings v. Blocker’s Adm’r, 25 Ala. 415-22; Jordan’s Adm’r v. Hubbard and Wife, 26 Ala. 433. If the defendant had said to the attorney who wrote the will, ‘I owe Grantland for services rendered; insert a clause giving him $10,060 for them, but upon condition that he brings forward no claim for them against my estate,’ this would surely be competent evidence as an admission; and the fact that the clause was inserted, instead of weakening the effect of it as evidence, would add to its force.’ Such a direction could not be proved by the attorney to whom it was made, because it would fall within-the protection afforded to confidential communications; but the defendant himself can claim no such exemption. — 1 Story’s Eq. PI. § 599; 1 Dan. Ch. Pi\ 638.</p>

John E. Moore presiding, to compel the dismissal of a suit brought by Cunningham & Linton against Samuel W. Robbins.

<p>[MOTION TO DISMISS APPEAL PEOM DEOREE OP INSOLVENCY.]</p> <p>1. Proviso to section 3040 of Code, as to limitation of appeals, construed.^-The proviso to section 3040 of the Code, as to existing judgments and decrees, does not except from the statute of limitations governing appeals all judgments and decrees then existing, hut only such judgments and decrees as would otherwise come within the provisions of that section; that is, those from which appeals would he barred in two years.</p> <p>2. Limitation of appeal from deoree of insolvency. — The limitation oí an appeal from a decree declaring an estate insolvent, which was one year under the act of 1843, is thirty days under the Code (§ 1888); and such a decree, rendered before the adoption of the Code, is not one of the “existing judgments or decrees” which are within the proviso to section 3040.</p>

<p>[APPEAL PROM PINAL DECREE OP DISTRIBUTION ON SETTLEMENT OP ESTATE.]</p> <p>1. Statute of descent and distribution (Code, §§ 1572-7G) construed. — When an intestate leaves no children or their descendants, the children of a deceased brother or sister of the half blood occupy “the same degree” of relationship as the surviving "brothers and sisters, and taire, by right of representation, the share which their ancestor, if living', would have taken.</p> <p>2. Code construed Try precious judicial decisions. — The re-enactment in the Code of a previous statute must he taken as a legislative adoption of the judicial so-nstruction which it had received/</p>

<p>Appeal from the Circuit Court of Mobile.</p> <p>Tried before the Hon. C. W. Rapier.</p> <p>This action was brought by Willis W. Manghain against Jesse Cox and Moses Waring ; and the complaint, as amended, was as follows : “ The plaintiff claims one thousand dollars damages from the defendants, who are the owners of the steamboat Fashion, for permitting plaintiff’s slave Spencer to be conveyed on said boat from Mobile to Montgomery, in the month of February, 1853, said negro then and there having had no pass, or permit, from said plaintiff; and. by reason of said negro being so conveyed to Montgomery as aforesaid, against the consent of plaintiff, he was and is wholly lost to said plaintiff. And plaintiff now claims of said defendants, part owners of said steamboat as aforesaid, the value of said slave, to-wit, one thousand dollars, pursuant to section 1010 of the Code of Alabama.” The defendants separately pleaded not guilty.</p> <p>“ On the trial of the cause,” as the bill of exceptions states, “ the plaintiff offered evidence tending to prove that he was the owner of a certain negro slave, named Spencer ; that said slave ran away from him, in the city of Mobile, in February, 1853, and was transported on the steamboat Fashion, during said month, from Mobile to Montgomery, Alabama, without the verbal or written permission of plaintiff, or of any other person ; that said negro was the property of plaintiff, and said defendants were at that time the owners of said boat; that said negro was wholly lost to plaintiff, and that he was worth from §800 to $1000. The plaintiff here rested his case.</p> <p>“ The defendants then offered evidence, tending to show that said negro was not discovered on said boat, until after she had ascended the river some seventy-five miles above Mobile ; that he was put in irons, by the direction of the captain, as soon as he was discovered, and chained to a post some eight or ten feet aft the boiler ; that said slave had no blanket, nor covering of any kind, except the clothes he had on, but there were some blankets belonging to the boat hands near where he was chained, and he was told that he could use them ; that when said boat reached Montgomery, said slave was sent to the county jail, and there confined, by order of the captain of said boat, while the boat proceeded on her upward trip to Wetumpka ; that said negro was sick when he was committed to jail at Montgomery, 'and continued sick until his death at said jail; that physicians were called to see him, and he was attended by them until his death; and that the defendants paid the physicians’ bills. There was evidence tending to show that one Vickers, who is a relative of plaintiff, went to the office of Waring & Co., in consequence of having been informed that said negro had probably been carried off on said boat; that a dispatch was written by Waring, and sent to the agent of said boat at Cahaba and at Montgomery, a copy of which is hereto attached,” and which was in these words : “ To Capt. J. J. Cox. — See if you have boy Spencer on board, belonging to Mr. Mangham. The boy came down with you the last trip. If on board, bring him back.” “ There was evidence, also, tending to show that said Cox, who was the captain of said boat, and in command of her at the time of said trip, is, as a commander of a steamboat, a careful and prudent man, and a first-class captain. The defendants here closed their case.”</p> <p>The plaintiff, in rebuttal, read the deposition of one John T. Sheppard, who testified, in substance, that he has standing-on the wharf in Montgomery when the steamboat landed there, and saw the slave, whom he recognized as plaintiff’s boy Spencer, brought on shore in chains ; that he examined the slave, and thought him very sick with pneumonia ; that the men who had charge of the slave, and who were unknown to witness, said they were going to carry the boy to jail; that witness told them, the boy would certainly die if they carried him to jail in that condition, — that they had better let him take the boy, as he knew Ms master, to the house where he kept his own negroes, and have him attended to, — and that he was going to Mobile in a few days, and would take the boy down to his master’s brother ; that they replied, the boy was a runaway, and they were responsible for him, and intended to carry him to jail, where he would be safely kept; and that they then carried him off towards the jail.</p> <p>1 ‘ On this evidence, the court charged the jury,—</p> <p>“ 1. That the owners of the boat were liable to the owner of the slave for his value, if the slave was transported on their boat without the written authority of the owner, or of the person in charge of him, and was lost; provided, the slave went on board, and was transported on said boat, under the employment, or with the knowledge, of those having charge of said boat.</p> <p>“ 2. But that if the slave was a runaway, and went on board the boat, and was transported thereon some distance, without the knowledge of the owners or officers of said boat, such transportation would not make the owners of the boat liable for the value of the slave, though he was thereby lost to the owner, unless those in charge of the boat, after the slave was discovered to be on board, continued to transport him, and neglected to employ reasonable and proper means to secure and preserve him, and to have him restored to his owner.</p> <p>“ 8. But that if the slave was taken off on the boat without the .knowledge of the owners or officers of the boat, and those in charge of the boat, after he was discovered to be on board, continued to transport him, and neglected to use reasonable and ordinary means to secure, preserve, and have him restored to bis owner, and tbe slave was lost in consequence of sucia neglect, then tbe owners of tbe boat would be liable for bis value.</p> <p>“ i. That although said slave may have been, transported on said boat, from Mobile to Montgomery, without tbe written authority of the owner or person in charge of him, and may have been put in the jail at Montgomery,and there died; yet tbe owners of the boat would not be liable for his value-, unless said slave was taken off on said boat, in the first instance, under the employ of those having charge of the boat, or with their knowledge, or was lost, after being discovered on board, in consequence of the neglect of those in charge of the boat to use reasonable and ordinary care to preserve him, and to have him restored to his owner.”</p> <p>The plaintiff excepted to these charges, and requested several others, of which the first was as follows : “ That if the jury should believe from the evidence that said slave was the property of the plaintiff in February, 1853, and was transported on board said boat, then the property of the defendants, from Mobile to Montgomery, without the written authority of his owner or the person having charge of him, — then it devolved on defendants to show that plaintiff had regained the possession of said slave ; otherwise, they are liable for his value to plaintiff.” The court refused this charge, and plaintiff excepted.</p> <p>The charges given, and the refusal of the charges asked, are now assigned as error.</p> <p>As a general rule of construction, the intention of a law is to govern ; and that intention is to be ascertained, first, from the words of the act itself. If the words are clear and unambiguous, the statute itself is the best expositor ; and the courts are bound to take it without abridgment or addition, if it be not unconstitutional, whatever may be their opinion of its wisdom or policy. If the words are not explicit, another rule of construction, equally well established, requires that the old law and the mischief, or (what is the same thing) the occasion and reason of the enactment, are to be considered in ascertaining the meaning. As to these rules of construction, see Dwarris on Statutes, 694-5, 702-3 ; 1 Kent’s Com. 461, 467 ; 2 Oran oh, .202 ; 6 B. & C. 715 ; 7 B. & C. 560.</p> <p>The language of the statute, under which this action was brought, is clear and explicit beyond all controversy. Before 'the adoption of the Code, the defendants would have been liable for the value of the slave, if he had been carried off with their knowledge, and thereby lost to the owner.— 8 Porter, 191. There was, then, no necessity for this statute, unless it was intended to fasten an additional liability on the owners of steamboats, for the transportation of slaves without the written authority of their masters. The occasion and reason of the enactment are to be found in the facts, that vessels are frequently leaving Mobile, for ports in other States ■and countries where African slavery docs not exist; and that ■slaves are frequently carried off in such vessels, and thereby lost to their owners. It could not have been intended to limit the liability of the owners of the vessel, to cases in which it could be proved that, when the vessel left the port, her officers knew that the slave was on board. It would be very difficult, if not impossible, to bring home to the officers knowledge of that fact; and to require proof of it would contradict the evident spirit and intention of the act. It is the duty of ■the officers to have a competent watch on the boat, whose business it should be to see that slaves, or other persons, are not improperly concealed on board; and the neglect of this duty gives a right of action to any one who is thereby, injured. ■The following decisions, on similar statutes, sustain this construction : Nashville & Chattanooga Railroad Go. v. Peacock, 25 Ala. 229 ; Winston v. Poster, 5 Robinson’s La. R. 113 ; 17 La. R. 546.</p> <p>It is the duty of any person, who may arrest a runaway slave, to carry him before a justice of the peace ; and it is. the duty of the justice, either to commit the slave to jail, or to send him to his owner, when known. If the slave in this case was arrested in Mobile county, by what authority was he taken to Montgomery ? The party arresting him, on the .■same principle, would have had the right to carry him to any ,other county in the State. If the officers of the boat were itho wrong-doers in the first instance, and their negligent conduct caused the slave’s sickness and death, the owners of the ¿boat are liable for his value.</p> <p>The complaint charges the defendants, as joint owners of the steamboat, for permitting the transportation of the slave ; but there is no charge of negligence in them or their officers, nor of any want of skill or care on the part of the officers. The liability is charged under a penal statute, which cannot be violated, unless a wrong is willfully or negligently done to the right of another: a party cannot be charged with a penalty, unless he was in a condition to elect whether or not he would incur that penalty. The statute means an unlawful carrying, to the injury of the owner.</p> <p>It is not shown when, where, or how the negro came on the boat. The character of his transportation was changed by his arrest; but neither before, nor after the arrest, was the carrying a violation of the statute. The carrying, before it was discovered that the slave was on board, was against the will of the carrier. The slave was a runaway ; neither his master, nor the carrier, had any control over him. He was acting on his own volition, and eluded the care and vigilance of both his master and the carrier, who were equally injured by the concealment and fraud. It was the misfortune of the plaintiff to be the owner of vicious property. It was his legal duty to watch over his slave, and to take care that he did not injure others. If he suffered the slave to escape from his custody, and to roam at large, he cannot hold an innocent person responsible for the consequences.</p> <p>The arrest was lawful. The law, in such case, vests in any one authority to seize the slave, for the use and benefit of the master, and at his expense. • The party arresting then becomes the legal agent of the owner, and his bailee for a reward, with power to protect and preserve the property for the master’s use. From the moment of the arrest, the master, in legal contemplation, through his lawful agent and bailee, regained the possession of the slave ; and the carrying was, from that moment, by his bailee, and for his benefit. The arrest of the slave as a runaway, and his subsequent confinement, with intent to restore him to his master, was an individual act, and not the act of an officer of the boat. Any public officer, or any other person, had the same authority to arrest the slave ; and no liability could be thereby created against the owners of the boat.</p> <p>In support of these positionsj the following authorities are relied on : Russell v. Irby, 13 Ala. 131 ; 22 Ala. 568, 671, 629 ; 23 Ala. 724 ; 7 Humph. R. 134, 148 ; 1 Oowen, 78 ; 19 Johns. 385 ; 8 Barr, 479 ; 7 N. H. 221, 518 ; 4 N. H. 36, 512 ; 1 Foster’s (N. H.) R. 363 ; Code, §§ 1023, 1029, 1008, 1016, 1006 ; Dwarris on Statutes, 690-1, 694-5, 756-7.</p>

<p>Appeal from the Probate Court of Lowndes.</p> <p>IN the matter of the estate of George M. Eeese, deceased, of' which the appellee was the administrator, the appellant being the widow of said intestate. An annual settlement of, the administrator’s account was, by consent of parties, treated as a final settlement so far as the widow was concerned ; and from the decree thereon rendered this appeal is prosecuted. The opinion of the court renders it unnecessary to notice particularly either the errors assigned, or the -other facts of the case.</p>

<p>[[APPEAL FROM DECREE REJECTING PROBATE 01? WILL:]</p> <p>1. Nature of proceeding for probate of will. — Tile probating of a will is, under any (circumstances, a proceeding rent-, yet, under the practice and statutes of this .State, it partakes somewhat of the nature of a proceeding in per-sonam, and is assimilated, in many respects, to an ordinary suit at law.</p> <p>2. Conclusivmess of recitals in record,.- — All orders and entries made, in the regular progress of a cause, during term time, are considered as emanating from the court, import absolute verity, and estop the parties from disputing their correctness.</p> <p>3. Joinder in issue. — When objections are filed to the probate of a will, it is not necessary to join issue thereon; nor can a joinder in issue by one of the proponents work a change of parties to the record, or release a co-proponent from his duties and liabilities as such.</p> <p>4. Oral and written applications for probate, — An application for the prohate of a will may properly be made in writing, though our statutes do not require that it should be so made; hut where a will is propounded orally hy two joint executors, and a day set for the hearing, a subsequent written application by one of the proponents alone cannot annul or vary the previous proceedings.</p> <p>5. Renunciation by proponent as executor. — Where two joint executors propound a will for probate, and an issue is made up to test its validity, it is too late for either of them, at the trial, to renounce his executorship, in order that he may become a competent witness to sustain the will.</p> <p>0. Admissibility of parol evidence io contradict recitals of record. — Parol evidence cannot be received to impeach or contradict the recitals in orders and entries made during the progress of a cause in the court in which the suit or proceeding is pending.</p> <p>7. Competency of proponent as witness for will.- — After issue joined contesting the probate of a will, an executor, who is shown by the record to be one of the proponents, cannot demand to be discharged, as a matter of right, on offering to deposit in court a sum of money sufficient to cover the costs, in order thathc may be examined as a witness to sustain the will.</p>

Tried before the Hon. Alex. McKiNSTEY. 'Assumpsit, on the common money counts, by Edward Carey against Matthew 0. Held: in analogy to the decisions under the statute of limitations, that the old debt discharged by bankruptcy is a sufficient consideration to support a new express promise to pay it, made by the bankrupt after his discharge; but this can scarcely be sustained in principle, and has been questioned by many judges, and expressly denied by…

<p>[DEBT ON JUDGMENT — PLEA OP BANKRUPTCY — DISCHARGE IMPEACHED POR ERAUD.]</p> <p>1. Variance between specification of fraud and evidence as to omission of slaves.- — Where a bankrupt’s certificate is impeached for fraud, his declaration, at the time of purchasing a horse soon after the institution of the proceedings in bankruptcy, that “ he wanted him to send to North Carolina for four or five negroes he had hid out there,” is not admissible evidence under a specification of the fraudulent omission and concealment of certain notes, accounts, claims, “ two negroes, Esther and Rhoda, and a large sum of money.”</p> <p>2. Relevancy of evidence — Practice.—Where evidence is prima fade irrelevant, it • is the duty of the party offering it to show its relevancy, either by showing, its connection with facts which are already proved, or by offering it in connection with facts expected to be proved.</p> <p>3. Variance in description of judgment. — ünder a specification of the fraudulent omission of a judgment for $122 81, evidence cannot be received of a judgment for $132 81, although it corresponds in every other respect with the judgment described.</p> <p>4. Relevancy of evidence to prove concealment of money.- — The collection by the' bankrupt of a judgment, before or about the time of filing his petition in bankruptcy, is relevant evidence to sustain the charge of a fraudulent omission or concealment of money, if the circumstances tend to show that he had not parted with the money at the time of his application for the benefit of the act; but if the judgment was collected by him after the institution of the proceedings in bankruptcy, such evidence would be irrelevant and inadmissible.</p> <p>5. Amendment of specifications. — The specifications of fraud, of which notice has been served on the defendant, are amendable ; but the refusal of the court to allow an amendment, after the case has been put to the-jury, is not revisable on error.</p> <p>6. When assent of preferred creditors to deed of assignment will be implied. — As a general rule, the assent of the preferred creditors, to a deed of assignment which is beneficial to them, will be implied ; but not when the deed was-made with intent to defraud the other creditors of the grantor.</p> <p>7. When bankruptcy revokes assignment. — A fraudulent deed of assignment, when' the express assent of the beneficiaries is not shown, is a mere power, and subject to revocation; and the bankruptcy of the grantor is a revocation of it.</p> <p>8. Rights of assignee in bankruptcy to property fraudulently conveyed by bankrupt.- — • Property conveyed by the bankrupt, prior to filing his petition, by deed of assignment fraudulent as to his creditors, vests in the assignee in bankruptcy, if the preferred creditors have not expressly assented to it; and it is the duty of the bankrupt, if he still retains the possession of the property, to surrender it in his schedule.</p> <p>9. Mow fraudulent assignment, not in contemplation of bankruptcy, affects bankrupt’s discharge. — The fact that the bankrupt, before filing his petition, made a. fraudulent assignment which does not come within the provisions of the second section of the bankrupt act, does not, of itself, affect the validity of his discharge ; nor does his omission to surrender the property thus conveyed, although he retains possession of it, necessarily prove a fraud or willful concealment under the fourth.section,; but these facts are admissible evidence, when his discharge is impeached by a creditor, as affecting the question of fraud or willful concealment.</p>

<p>Appeal from tbe City Court of Mobile.</p> <p>Tried before the Hon. Alex. McKinstry.</p> <p>The material facts of this case, as embodied in the opinion of the court, are the following : “ This was an action by a riparian proprietor, owning lands on both sides of Three-mile creek, near Mobile, to recover damages for defendant’s diversion of water from said creek, at a point above the lands of plaintiff, to the alleged detriment of plaintiff and his mill-interest on said creek. The complaint alleges that, on the 20th November, 1851, and on divers other days and times between that time and the filing of the complaint, 3d November, 1853, the defendant 1 wrongfully and injuriously diverted, and turned out of its natural channel, at a point above the land and premises of plaintiff, a large portion of the water of said creek, so that the same was thereby wholly diverted and turned away from the land and mill of the plaintiff, and prevented , from flowing as it had been accustomed, and would otherwise ¡have flowed, through said lands, and by said mill, but for such ^version.’</p> <p>\\ “ The bill of exceptions shows, that the defendant had dug afditch, to convey the water back into the channel of the creek above plaintiff’s mill; 1 which said ditch would do, but from the fact, that some persons other than the parties to this suit had opened a- ditch, to lead the water from said Three-mile creek down to a paper-mill, which last-mentioned ditch imites with the creek at the same point that Stein’s ditch does ; so that much of the water that runs out of Stein’s ditch is carried down the ditch that runs to the paper-mill, and does not return to the creek above Burden’s mill.’ There was a conflict in the testimony, whether Stein’s ditch, or the ditch to the paper-mill, was first dug. Stein did not own the land where the two ditches intersected the creek.</p> <p>“ The court was requested by the defendant to charge the jury, ‘ That if Stein had dug his return ditch, so as to carry off all the surplus water into the creek, and afterwards some other person, without his concurrence, had opened the ditch to the paper-mill on the city property, so as to carry water out of Stein’s ditch down to the paper-mill, that Stein was not chargeable with the water so carried down said ditch.’ This charge the court gave, with the following qualification : ‘ That if Stein abstracted the water from the creek, it was his duty to see that it was returned into the creek above plaintiff’s mill ; and if any other person had opened a ditch, ■so as to take the water from Stein’s ditch down towards the .paper-mill, with Stein’s knowledge, and if Stein did not, within a reasonable time after such knowledge, provide means of returning the water to the creek, but permitted it still to flow so that the water did not run from his premises back into the creek above Burden’s mill, — then Stein would still be liable for not returning the water.’ To this qualification the ■defendant excepted.”</p> <p>The principal question raised by the record, is, in substance, whether a riparian proprietor, who diverts water for his mill, but returns it to its original stream, so as not to injure the proprietor below him, is responsible for a diversion caused by a third person, who intersects the artificial channel provided for the restoration of the water, just at its mouth, on his own lan,d. This question arises in two aspects : 1. Can a recovery be had on a declaration, which alleges no special damage, but only charges Stein with diverting the water. That it cannot, see the following authorities : Sedgwick on Damages, 76, 17 ; 1 Chitty’s Pleading, 396 ; Fitzsimmons v. Inglis, 5 Taunton, 534 ; De Forest v. Leete, 16 Johns. 122.</p> <p>2. Under no declaration could Stein be made liable for the diversion of Portier, or required to put an end to the wrong done by a third person ; especially as it was not on his land.— Authorities supra ; also, Vicars v. Wilcocks, 8 East, 1 ; Livie v. Janson, 12 East, 648 ; Flower v. Adam, 2 Taunton, 314 ; De Vaux v. Salvador, 4 Ad. & El. 420 ; Burrows v. Wright, 1 East, 615 ; Olney v. Fenner, 2 Rhode Island R. 214 ; Armstrong v. Percy, 5 Wendell, 538 ; 2 Greenl. Ev. § 256.</p> <p>1. The charge requested by the appellant was not law, and even the qualification given was too favorable to him. His obligation to restore the water which he had diverted, before it reached the plaintiff ?s lands, to its accustomed channel, results from the nature of the property in running water, and the rules which have been universally applied to regulate its use. No riparian proprietor has the right to use the water to the prejudice of other proprietors, above or below him. Though he may use the water while it runs over his lands, he cannot unreasonably, detain it, or give it another direction ; and he must return it to its ordinary channel when it leaves his estate. To say that another person has interrupted the return, is no excuse for his failure to return the water. The diversion is at his peril who diverts ; and if he cannot return the water, after a reasonable use of it, he must not divert it. — 3 Kent’s Com. 439, 441; Angelí on Water-Courses, §§ 5, 90, 94, 95, 97 ; Beissell v. Sholl, 4 Dallas, 211; Parker v. Griswold, 17 Conn. 288^ Omelvany v. Jaggers, 2 Hill’s (S. C.) R. 634; Howell v. McCoy, 3 Rawle, 256 ; Wood v. Waud, 3 W., H. & G. (Exch.) 148 ; Rlanchard v. Baker, 8 Greenl. 266; Embry v. Owen, 6 W., H. & G. (Exch.) 361-10; McAlmont v. Whitaker, 3 Rawle, 84 ; 20 Penn. State R. 89 : 5 Vermont, 311 ; 9 Watts, 119 ; 2 Denio, 443 ; 1-Bos. & Pul. 404.</p> <p>2. Under the complaint, the plaintiff was entitled to recover damages for any diversion of the water of Three-mile creek which the evidence might establish. The evidence corresponded substantially with the averments of the complaint, and entitled the plaintiff to a recovery. — Shears v. Wood, 1 Moore, 345; Ricketts v. Salwey, 2 Barn. & Aid. 360 ; Burdick v. Glaseo, 18 Conn. 494; Hutchinson v, Granger, 13 Vermont, 386 ; Pastorius v. Fisher, 1 Rawle, 21 ; Arnold v. Foot, 12 Wendell, 330 ; Hodges v. Hodges, 5 Metcalf, 205.</p>

<p>[ORKHNAL ATTACHMENT AND GARNISIIMENT — SUMMONS OP TRANSEERREE.]</p> <p>1. Validity of garnishment on void attachment. — "When a suit is commenced by an original attachment, which is void on its face for want of jurisdiction in the officer who issued it, and there is no appearance, plea, or waiver by the defendant in attachment, the summons of garnishment is also void, and the court has no jurisdiction of the proceedings.</p> <p>2. Cleric of Mobile city court cannot issue original attachment.• — The case of Stevenson v. O’Hara, 27 Ala. 362, as to the power of the clerk of the city court of Mobile to issue original attachments, re-affirmed. ("Walker, J., dissenting.)</p> <p>3. Construction of reference clause in statute. — A clause of reference, in a statute creating a court, and prescribing the jurisdiction and powers of its officers, confers upon its ministerial officers only the general powers of the other officers referred to, and does not embrace such powers as are special and quasi judicial; such, for instance, as the power to issue original attachments.</p> <p>i. Conclvsiveness of judicial decisions. — A decision of the supreme court, however erroneous, is the law of the case in which it is pronounced, and concludes the parties as to every point necessarily determined; as where a judgment in an attachment case, discharging the garnishee, -was reversed on error at the instance of the plaintiffs, and the fund held subject to their attachment, which was afterwards found to be void on its face for want of jurisdiction, held, that a claimant of the fund, who was a party to the former appeal, could not question the validity of the attachment.</p>

<p>Appeal from the City Court of Mobile.</p> <p>Tried before the Hon. Alex. McKiNSTry.</p> <p>This action was commenced by an original attachment, which was issued by the clerk of the city court of Mobile, at the suit of Paul, Cook & Co. v. A. Plash & Co. ; and the present appellants were summoned, by process of garnishment, as the debtors of said A. Plash & Co. A judgment by default was rendered against the defendants in attachment, and at a subsequent term a judgment was rendered against the garnishees on their answer, which judgment, they now assign as error.</p> <p>cited tbe case o Stevenson v. O'Hara, 27 Ala. 362.</p> <p>Admitting that the attachment was issued without authority on the part of the clerk, yet the appellants, having appeared, and answered without objection, cannot avail themselves of this defect. — Walker v. Taylor, 1 Stew. & P. 298 'Smith v. Chapman, 6 Porter, 365 ; Daniel v. Hopper, 6 Ala. 298 ; Gill v. Downs, 26 Ala. 670.</p> <p>IT. The cleric of the city court had authority to issue the attachment. The late case of Stevenson v. O'Hara, it is respectfully submitted, ought to be fully re-considered, and overruled. That case ought not to be considered of great, much less of binding authority, because,—</p> <p>1. The point on which it was decided, was not argued ;* and this greatly diminishes its authority. — Earn on Judgment, m. p. 182 ; Tyler v. Lake, 4 Simons, 144; Purcell v. McNamara, 9 East, 161.</p> <p>2. It is only one case on the point; and the attention of the court was not called to the authorities, nor to a material statute hereinafter noticed. — Earn on Judgment, 121.</p> <p>3. It is on a mere question of practice ; and in such cases, the maxim stare decisis is not applied as strictly as in cases affecting titles to property, long acquiesced in and acted on.</p> <p>4. It is contrary to the generally received opinion of the profession in Mobile, where alone the question could arise ; and many of the most learned jurists have considered the common opinion of the profession as of high authority.— Co. Litt. 186 a, 205 a ; 1 Taunton, 448 ; 1 Maulé & Sel. 396 ; 5 Cranch, 22 ; Earn on Judgment, 12.</p> <p>5. It is in conflict with the uniform practice of the court ever since its organization ; and that practice, though not conclusive, is strong evidence that it is right. — 5 Cranch, 22¿ Harper's R. 102 ; 14 Ala. 423 ; 7 Ala. 710, 713 ; Ram on Judgment, 62-65, and cases there cited.</p> <p>6. The court should look to the consequences of the decision. — Ram on Judgment, 233. This decision will inevitably lead to many lawsuits, and to much injustice. About two hundred and fifty original attachments have heretofore been issued by the clerk of the city court. The titles to a large amount of property depend upon their validity. How can the sheriffs, clerks, and other officers escape liability in all these cases ?</p> <p>But it is insisted, also, that the decision itself is erroneous; because, 1st, the several statutes bearing on the subject, which are to be construed in pari materia, confer on the clerk of the city court power to issue original attachments. Those statutes are the following : The act of January 27, 1845, gave authority to “ the clerks of the circuit and county courts to issue original and ancillary attachments.” Under this act, the clerk of the then county court of Mobile had authority to issue an original attachment ; it was process of the court, and a part of its system of practice. The act of February 3,1846, which established the criminal court of Mobile, provides that it “ shall have a seal, a clerk, and other officers for the exercise of its jurisdiction, as the circuit courts have,” <fcc. ; and “ that the process of said criminal court shall be tested, &c., and in the form, as is or may be provided for the process of the circuit courts.” The act of February 11, 1850, contains a provision, “ that the same jurisdiction and system of practice which the county courts now possess,” &c., “ be, and the same is hereby, conferred on the criminal court of Mobile.” The act of February 12, 1850, changed the name of the court. The Code (§10) continues in force “ all acts creating the city court of Mobile, and in relation thereto.” The act of February 7, 1852, which is the only act noticed in the opinion of the court, vests in the city court “ all the powers and jurisdiction of the circuit courts, ■ except in actions to try titles to land ”; and the second section declares, “ that all laws of a general nature, (except as to actions to try titles to land,) that may hereafter be adopted, giving jurisdiction to the circuit courts of this State,” &c., “ shall be held to apply and extend to the city court of Mobile, though it may not be mentioned in said law.” The act of February IT, 1854, “ to regulate the sessions of the circuit and city courts of Mobile,” providing that “ suits begun in either of said courts by attachment,” &c., seems to recognize the power of the city cleric to issue such attachments. Besides these special statutes, the act of 180T (Clay’s Digest, 834, § 123) provides that “all original process,” &c., “ to bring any person to answer to any action in any court, shall be issued by the clerk of such court.” That an attachment is original process to bring the defendant into court, especially if he is a non-resident, see 11 Ala. 218, 942; 9 Ala. 615.</p> <p>These statutes, construed by the general rules for the interpretation of statutes, clearly give the power to issue original attachments. Our attachment laws are remedial, and should be liberally construed to advance the remedy. — Clay’s Digest, 59, § IT; Dwarris on Statutes, T18. Both persons,and things, though not within the words of a statute, are often held to be embraced in what is called its equity. — Dwarris, TIO, T13, T21, T28. A practice which has grown up under a statute is to be considered in construing it, and the statute should be so construed as to support the practice. — 5 Cranch, 22 ; T Ala. TIO, T13 ; 14 Ala. 425 ; 4 Mass. 4TT’; IT Pick. 518. The meaning of the words of a statute may sometimes be gathered from a- subsequent statute in pari materia. — 3 How. 565. In construing a statute, the court should look to the consequences, and so construe it as to avoid inconvenient consequences.— Dwarris, T5T.</p> <p>At common law, clerks, even of the superior courts at Westminstér, had no power to issue original writs. Those courts themselves had no such power. All original writs were issued by the king alone, out of his court of chancery, officina brevium. — 3 Bla. Com. 48, 2T3. The clerks could not even issue the subsequent writs to compel appearance, which were issued by the court. — lb. 2T9-80. In the courts of the United States, and in those States where the common Jaw is unchanged, such writs are still issued by the court, and tested by the chief-justice. It is only by virtue of the act of 180T that our clerks are authorized to issue process. After suing out the original writ, at common law, the next step was a summons to the defendant to appear ; and, if he did not appear, then an attachment against his goods. After the attachment, a capias might issue, but only in actions of trespass, &c. — Bla. Com. 279, 281, and authorities there cited. An attachment, then, is not (as the court considered it) a summary proceeding in derogation of the common law : on the contrary, it is a process well known at common law, and immemorially used, and has existed' here since the first organization of the territorial courts. If it had ever been extraordinary, surely an uninterrupted use of it for fifty years would make it ordinary. Nor is it, in any proper sense of the word, summary : on the contrary, it is more complex and less expeditious than a suit commenced by summons. No statute, in express terms, gives the clerk of the city court power to issue a capias j yet it is conceded that he has the power. Why has he not, under the same statutes, equal power to issue attachments ?</p> <p>It is further submitted, that the decision is erroneous, in holding that the act of the clerk, in issuing an attachment, is judicial, and not ministerial. It is difficult, in some cases, to distinguish between judicial and ministerial acts ; and most ministerial hcts require the exercise of some judgment and discretion on the part of the officer. At common law, where a judgment by default was taken, with a writ of inquiry, the sheriff presided at the execution of the writ; and many of the most eloquent speeches of Erskine, Curran, and others, in cases of slander, aim. con. &c., were made before a sheriff and jury. So, too, in executing writs of ad quod damnum. Yet in all these cases, the sheriff acts ministerially, and may even act by deputy. — 2 Johns. 68 ; Watson on Sheriffs, 221-225. In taking and approving an administration bond, a judge of probate acts ministerially. — 3 Ala. 88, 92. In taking and approving an appeal bond, or a writ-of-error bond, a clerk acts ministerially. — 9 Ala. 434 ; 17 Ala. 478 ; 9 Sm. & Mar. 641. Registers and receivers of the land-offices, in receiving evidence and deciding on pre-emption claims, act ministerially. 9 Missouri, 187. In issuing a summons of garnishment on a judgment, or a judicial attachment, a clerk acts ministerially. 7 Ala. 160 ; 22 Ala. 496,499. A judicial officer is not liable for an injury resulting from a judicial act. — 5 Johns. 282,295; 9 Johns. 395 ; 26 Ala. 527 ; 1 Denio, 595 ; 4 Dev. & Bat, 351. But it cannot be doubted, that a clerk would be liable in damages for taking an insufficient bond, or for issuing an attachment without affidavit and bond ; and therefore he cannot act judicially. In taking and certifying acknowledgment on proof of a deed, a clerk acts ministerially ; and the act may, on this ground alone, be performed by a deputy.— 7 Ala. 138 ; 11 Ala. 9. If, then, the clerk acts ministerially in issuing an attachment, the whole ground of the decision in Stevenson v. O’Hara falls to the ground.</p>

<p>Appeal from the City Court of Mobile.</p> <p>Tried before the Hon. Ales. McKinstey:</p> <p>Debt by the Firemen’s Insurance Company of Mobile against Thomas McMillan, on a penal bond which was dated July 10, 1850, purported to be signed by Rufus Greene, said McMillan and one Daniel Robertson, and which was conditioned as follows : “The conditions of the above obligation are such that, whereas the above bounden Rufus Greene has been elected secretary of the Firemen’s Insurance Company of Mobile, now, therefore, if the said Rufus Greene shall well and truly perform all and singular the duties required of him according to the charter, by-laws and resolutions of said insurance company, now in force, as well as such other duties as from time to time may be required of him as secretary of said company, to the best of his judgment and ability, and according to law, then this obligation to be void; otherwise, to remain in full force and effect,” &e.</p> <p>The suit was commenced in January, 1851, and the declaration contained two counts; the first for the penalty, without noticing the condition; and the second setting out the bond and condition, and assigning breaches. The defendant filed seven pleas to the first count, which were, substantially, as follows: 1. “ That at the time he signed said supposed writing obligatory, the same was filled with the names of Rufus Greene, this defendant and Daniel Robertson, but that the said supposed writing obligatory was not signed with the name of said Robertson; that defendant signed the same, and delivered it to Rufus Greene as an escrow, to be by him held until signed by Daniel Robertson, and then (and not until then) to be delivered to the plaintiff.- And defendant avers, that said Robertson never did sign the same; and so he says, said supposed writing obligatory is not his act and deed,” &c. 2. “Defendant says, he signed said supposed writing obligatory, and delivered the same, as an escrow only, to be delivered and binding on him in the event that one Daniel Robertson should execute the same, and that said Robertson never did execute the same; and so he says, that the same is not his act and deed,” &c. 8. That he signed said supposed writing obligatory, and delivered the same to Greene, as an escrow only, “to become binding on him only in the event the same should be signed by some good and sufficient third person as co-surety”; that this was not done, and so it is not his act and deed, &c. 4. Substantially the same as the third, with the additional averment, “that the name of Daniel Robertson was forged to the same by said Greene”; and so it is not his deed, &c. 5. (After craving oyer of the bond and condition, and setting them out,) “ That when said bond was presented to him for signature, it had in. the body of the same the names of Rufus Greene, this defendant and Daniel Robertson, as the intended obligors; that defendant signed the same, and delivered it, as an escrow, to become his act and deed only when the same should be executed by said Robertson”; that it was not executed by said Robertson; and so it is not his act and deed, &c. 6. That plaintiff required of said Greene a bond, in the penalty and with the conditions of §aid supposed bond, and with two sureties; that Greene, in order to comply with such requisition, procured defendant to sign the same as one of his sureties; that defendant did sign it, and delivered it to said Greene, only as escrow, and to become obligatory on him only when further signed by Daniel Robertson, or by some other third person, as co-surety; that no third person did execute the same, but that said Greene or some one else, without defendant’s knowledge or consent, forged the name of said Robertson thereto; and so it is not his deed. 7. Performance generally.</p> <p>The defendant demurred to the second count, but the court overruled his demurrer; and the plaintiff’s demurrers to the several pleas above set out were also overruled. Thereupon tho plaintiff joined issue on the first six pleas, and replied to the seventh assigning breaches. To this replication the defendant demurred, and his demurrer was overruled. It was then agreed that the same pleas should be considered as filed to the second count, and five additional pleas were filed, which were, 1st, non est factum; 2d, performance; 3d, “And for further answer to so much of said breaches as relates to bills and notes, defendant says that plaintiffs have elected to treat said Greene as their debtor for the amount of the same, and have ratified the acts of the said Greene in reference thereto, by having waived the tort and held Greene to answer for the value of the same in money”; 4th, that Greene has accounted with and paid plaintiff for the defaults complained of; and, 5th, that plaintiff has released Greene. The plaintiff joined issue on all these pleas except the third; and the demurrer to the third having been overruled, issue was also joined on it.</p> <p>On the trial, the plaintiff offered in evidence the bond declared on, with the deposition of Joseph Caywood, one of the subscribing witnesses, who testified, that he saw McMillan sign the bond, heard Greene at the same time acknowledge his signature, and did not recollect that anything else was said by the parties at the time; also, that the name of Daniel Robertson was not then signed to the bond. Plaintiff then offered evidence, conducing to show that said Rufus Greene, for several years prior to the date of said bond, had been secretary of said insurance company, the term of office being one year; that he was re-elected secretary on the 13th June, 1850, for the year commencing on the 15th July then next following; that he acted as secretary until the 24th December, 1850, and then resigned; that the board of directors of said company passed a resolution, previous to the last election of said Greene, requiring their secretary to give bond, with two sureties, in the sum of $25,000, for the faithful discharge oí his duties; that it was 'the duty of said Greene, as secretary, to receive and safely keep, or properly pay out and disburse, the moneys, promissory notes, bills of exchange, and other effects of the company; that after the 15th July, 1850, and whilst said Greene was secretary of said company, moneys, promissory notes, and bills of exchange to a large amount, belonging to said company, were in Greene’s hands as secretary, and were by him fraudulently embezzled and converted to his own use; and that he failed, on demand made by the president and directors of said company, to deliver the same to the persons authorized to receive them. “The evidence tending to prove these facts, was, that Greene, on the 2d July. 1850, produced to- the directors a bundle of papers, purporting to be the bills and notes belonging to the company, (but none of which proved to be genuine, otherwise than by such admissions of Greene,) amounting to $123,000; which evidence was admitted against the objection and exception of defendant. Also, proof that, about the 15th December, 1850, after some suspicion that all was not right, and in response to a call from the directors for an account, Greene exhibited a bundle of papers, purporting to be bills and notes belonging to the company, to the amount of about $40,000, and entries in the company’s bank-book showing about $60,000 more of bills, notes, and cash in bank; but the genuineness of none of them was proved — on the contrary, some of the pretended notes and bills were afterwards ascertained to be forged copies of genuine notes, which the company had taken; and the entries in the bank-book were proved to be forgeries. This proof in no wise identified any bill or note, by parties, date, amount, or in any other manner; and the proof made by defendant tended to show that, when Greene máde said exhibition in July, he was largely a defaulter; that when he made the exhibit in December, he was not only suspected, but knew that he was suspected; and that on the 25th December he admitted his default, saying that it was useless longer to attempt to conceal the matter.”</p> <p>The plaintiff then offered evidence tending to show that, by an agreement between said company and the corporate authorities of Mobile, the city taxes were deposited with the company, and that Greene, as secretary, was authorized and required by the president and directors to receive and keep these funds until they should be properly called for or paid out; and offered to prove by the tax-collector that, after the 15th July, 1850, and before the resignation of Greene as secretary, city taxes to a large amount were deposited with said company, and were received by Greene as secretary. The defendant objected to this evidence, on the ground that the company was not authorized by its charter to receive money on deposit; the court sustained the objection, and the plaintiff excepted.</p> <p>The plaintiff offered in evidence, also, the' record of a judgment recovered against said Greene, in the city court of Mobile, at its July term, 1851, for $95,000, the amount of his alleged defalcation as secretary of said company. This judgment was rendered by nil dicit, and the action was assumpsit. The defendant’s counsel agreed that the record might be read in evidence, subject to the opinion and charge of the court as to its effect.</p> <p>“The plaintiff gave evidence, also, conducing to show that said bond was actually delivered by said Greene to the president of said company, about the latter part of July, 1850. The evidence (and the only evidence) on the question of delivery, was that of Caywood, above set out; the resolution of the company inquiring bond and two sureties; and the face of the bond, from which it appeared (and which was admitted by plaintiff to be the fact) that, when McMillan signed the bond, the names of Greene, McMillan and Robertson were in the face of the bond as obligors, and a seal remaining at the bottom, after Greene and McMillan had signed, to which there was np signature or attestation; and the proof that the president of the company wished to leave home for the summer about the last of July, and called on said Greene for his offical bond, and was (?) told he must furnish it — that the president would not leave until he did, and that if he did not do so speedily, the president would call the directors together; when Greene replied, that it was incomplete, but he would ’ get it completed and hand it in. The president left home in a few. days, and nothing more was proved to have been' seen or heard of the bond, until after Greene’s resignation on the 24th December, 1850, when the witness saw the bond in the president’s possession. The plaintiff offered in evidence, also, entries on the boohs of the company, made by said Greene while secretary, and after the 15th July, 1850; and admissions of said Greene during that time, tending,to show that he was a defaulter to the amount of the judgment recovered against him as aforesaid.”</p> <p>The bill of exceptions sets out some other evidence which was adduced by the plaintiff, but which is not deemed material.</p> <p>“The defendant offered in evidence to the jury the original indictment found against said Greene at the February term, 1851, of the city court of Mobile, for the alleged larceny and embezzlement of notes and bills of the plaintiff; upon which indictment, it was admitted, a nolle -prosequi had been subsequently entered. It was proved that said indictment was in the handwriting of, and had been drawn up by, counsel employed by the plaintiff to prepare said indictment; and it was then offered by defendant, as evidence of an admission on the part of plaintiff that said notes and bills had been embezzled or stolen by said Greene before the 15th July, 1850. Thereupon, plaintiff objected to the admission of said indictment in evidence, and moved the court to exclude the same from the jury; but the court overruled said objection, and permitted said evidence to go to the jury; to which the plaintiff excepted. The defendant stated, in offering the indictments (both that here mentioned, and the one hereafter mentioned), that it was offered, notas evidence of the fact of embezzlement or forgery, but to show to what the admission of plaintiff, afterwards to be proved, related; stating that he would prove, and then immediately proceeding to prove, that plaintiff had employed counsel to prosecute Greene on these indictments, and thereby admitting that the offenses charged had been committed. The object was to prove nothing by the record, except by its application to the admissions of plaintiff, and to show to what bills and notes the admissions related. Defendant also offered in evidence, for the purpose before shown, an indictment against said Greene, found in the city court of Mobile at its February term, 1851, for the alleged forgery of the name of said Robertson to said bond, and the judgment of conviction thereon”; “and prated, also, that this indictment had been drawn up by counsel employed by plaintiff to prosecute Greene for said alleged forgery. To the admission of this indictment plaintiff also objected, and moted the court to exclude the same from the jury; but the court overruled the objection, and the plaintiff excepted.”</p> <p>The forgery of Robertson’s name to the bond was admitted by the plaintiff; “and the defendant having offered evidence tending to show large defaults by Greene before the 10 th July, 1850, the plaintiff offered no rebutting proof, and gave no evidence to distinguish the amount of defaults (if any) done before and after the 10th July, 1850.” The defendant also offered evidence tending to show that the plaintiff, after Greene’s defalcation became known, realized a large sum from his assets, and credited said judgment against him with a portion of the amount.</p> <p>The court gave numerous charges to the jury, which it is not necessary to set out. The 12th and 14th charges were as follows:</p> <p>“12. The judgment in favor of the company, against Greene,obtained in the city court, is not, of itself, evidence in the case at bar, to show the extent of the surety’s liability. It has been admitted, howevei’, without objection on the part of the defendant, to be evidence so far as it may be shown by extraneous evidence to have been based upon defaults occurring after the delivery of the bond. The judgment, then, is in evidence, subject to such restriction, to be considered by you, in connection ivith the evidence introduced to explain and limit it, in ascertaining the amount of the surety’s liability.”</p> <p>“14. If there were defalcations for which the defendant was liable, but the plaintiff has obtained satisfaction or payment for such defalcations from the principal obligor, that would discharge the liability of the defendant. If the payments, or money, or property,-which the company may have obtained from the principal obligor towards satisfaction for such defalcations, were less than the amount of such defalcations, then the surety would be liable for the residue, to the extent of his bond, unless there was proof that the company had elected to discharge the liability of the surety, to the extent of the money or property so obtained.”</p> <p>The plaintiff excepted to both of these charges, and then asked the following: “ That if the jury believe from the evidence that the bond was signed and sealed by the defendant, and acknowledged by him in the presence of an attesting witness, and was then delivered by him to Rufus Greene, for the purpose, and with the expectation, of its being by him delivered to the plaintiff; and that there was, at the time it was so delivered by the defendant, an express condition declared by the defendant to Greene, that it should not be binding on the defendant, unless the bond was also signed by Daniel Robertson or some other person as co-surety; and that that condition was not communicated or made known to the plaintiff before the delivery of the bond by Greene to the plaintiff; and that Greene afterwards signed the name of Robertson to the bond, without authority from said Robertson; and that it was not known to plaintiff, at that time, that the name of said Robertson was forged, or signed by a person not authorized to sign it, — this would not make it an escrow, but it was valid as a bond against the defendant. This charge the court refused, and the defendant (?) excepted.”</p> <p>The court further charged the jury, at the plaintiff’s request, as follows : “That if the jury believe from the evidence that the bond sued on was signed and sealed, or acknowledged, by the defendant in the presence of the subscribing witness, and it was afterwards in the possession of the plaintiff, and produced by the plaintiff on the trial — this is sufficient prima facie evidence that it was signed, sealed, and delivered by the defendant to the plaintiff, and throws on the defendant the burden of proving that it was only delivered by him as an escrow; and that the evidence offered by the defendant on this point being all in writing, and no conflict of evidence respecting it, the evidence is not sufficient in law to prove that it was only delivered as an escrow.”</p> <p>The rulings of the court on the pleadings and evidence, and the charges to which exceptions were reserved, are now assigned as error.</p> <p>1. The correctness of the ruling of the court on the demurrer to the first six pleas, and of the charge asked and refused, depends upon what is necessary to constitute an escrow. On the part of the plaintiff. it is insisted that, to constitute an escrow, the delivery must be made to a stranger: it cannot be to the obligee or grantee, nor, as we insist, to a co-obligor. Such, undoubtedly, is the doctrine held in England from a very early period, and supported by the highest authority. — Sheppard’s Touchstone, 58, 59; 2 Bla. Com. 307; 4 Kent’s Com. 454. The same doctrine has been held by the supreme court of the United States, and by the highest courts of many of the States. — Moss v. Riddle, 5 Cranch, 351; Fairbanks v. Metcalf, 8 Mass. 238; Lawton v. Sager, 11 Barbour, 349; Warrall v. Mann, 1 Selden, 229-38; Graves v. Tucker, 10 Sm. <fc Mar. 9; Johnson v. Branch, 11 Humph. 521; Foley v. Oowgill, 5 Blackf. 18; 4 Pick. 520; 10 Wend. 313;. 23 Wend. 45; 4 Watts, 180; 16 Yermont, 530. It is supposed that the decision in Bibb v. Reid, 3 Ala. 88, is contrary to this doctrine; but, admitting that it decides there may be a delivery as an escrow to a co-obligor, it does not decide that there may be such a delivery to the obligee; and therefore it does not support the fourth or fifth plea, each of which alleges a delivery generally, but does not state any particular person. The presumption is, that the delivery was to the plaintiff. . No case can be found deciding that there can be a delivery as an escrow to- the obligee. The defendant must show by his plea to whom the delivery was made. — 3 Chitty’s Pleadings, 962, note o; 5 Bac. Abr. 809. Upon principle and public policy, as well as upon authority, the doctrine should be fully maintained, that there cannot be a delivery as an escrow to any but a stranger.</p> <p>2. It is further insisted, that the condition, if any, must be made known to the obligee. This is reasonable, as well as necessary to avoid opening the door to the grossest fraud. It is expressly so decided by this court, in Price v. Cloud, 6 Ala. 249-54; also, in McClure v. Colclough, 17 Ala. 89. None of the pleas state that the alleged condition was known to the plaintiff.</p> <p>3. Greene, as shown by the pleas, was the defendant’s agent as to the delivery of the bond to the plaintiff. If he violated the trust reposed in him by the defendant, and forged Robertson’s name to the bond, the defendant, having by his act enabled Greene to do this, ought to bear the loss.</p> <p>4. The third additional plea is clearly bad, and the demurrer to it should have been sustained. The fact that the plaintiff held Greene responsible, could not discharge either him or the defendant.</p> <p>5. The evidence as to the city taxes was erroneously excluded. The charter of the company, as amended, certainly does not prohibit it from receiving money on deposit. This may be done consistently with the charter, and, indeed, is authorized by the charter. But, even if this was not so, it is shown that Greene, as secretary, was duly required to receive this money; it is within the terms of his bond; and neither he, nor the defendant, can raise this objection.</p> <p>6. The admission of the indictments as evidence was erroneous. They were necessarily instituted, prosecuted and conducted, in the name, and by the officers of the State. The plaintiff was no party 'to the record. It could not have been evidence for the company, and of course could not be used against the company: there must be mutuality. — 1 Green. Ev. § 524.</p> <p>7. The 12th charge of the court, in relation to the effect of the plaintiff’s judgment against Greene, was erroneous. It was, at least, prima-facie evidence against the defendant, both of the fact of the embezzlement and the amount embezzled. — Drummond v. Prestman, 12 Wheaton, 515; Williamson v. Howell, 4 Ala. 693-5; McClure v. Colclough, 5 Ala. 65. The entries and admissions made by Greerie were admissible in evidence against the defendant. — Pendleton v. Bank of Kentucky, 1 Monroe, 178-81; Middleton v. Melton, 10 Barn. & Cress. 318; Townsend v. Everett, 4 Ala. 607-12; 7 Ala. 835; 9 Ala. 484; 13 Ala. 321. The defendant was liable for moneys, or effects, received by Greene before the execution of the bond, but wasted afterwards. — 4 Ala. 607; 7 Ala. 79-82. And where effects of the company are shown to have been in Greene’s hands, the burden of showing that they were properly disposed of is thrown on the defendant. — The United States v. Boyd, 5 How. (U. S.) 29-50; Baldwin v. Gully, 11 Ala. 716.</p> <p>8. The 14th charge was also erroneous. The judgment against Greene was for $95,000, and there was a considerable amount of interest on it. The whole amount realized by the plaintiff was not, at most, more than $61,000. There then remained due on the judgment largely over $31,000, which is much beyond the penalty of the bond sued on. The charge, then, was not warranted by the evidence; was erroneous, and calculated to mislead the jury. There was no ground for the application of the doctrine of the appropriation of payments. The record set out all the evidence in the case, and showed that the whole recovery was for defaults occurring after the last bond was given.</p> <p>9. Injury will be presumed from error, and the judgment will be reversed, unless the record shows, affirmatively and clearly, that no injury was possible. — Kirksey v. Dubose, 19 Ala. 44; Spivey v. McGeb.ee, 21 Ala. 423; Frierson v. Frierson, 21 Ala. 550; Ex parte Keenan, 21 Ala. 558; Gilmer v. Ware, 19 Ala. 258.</p> <p>1. The record shows that, in no aspect of the case, was the plaintiff entitled to recover. The liability covered by the bond was only one term of office: it was either the term ending the 15th July, 1850, or the term then begun; and it only took effect from its delivery, which was in the latter part of July, 1850. — 4 Kent’s Com. 454; Burlestone on Bonds, 9, Conceding that it was the term then to begin, it covered defaults committed from and after the 15th July, and not from 2d July; and the burden of proving defaults niter that day was on the plaintiff. The plaintiff gave (illegal) proof, faintly tending to show a default after the 2d July; and on its own showing, therefore, no recovery could be had. — Arlington v. Merrick, 2 Saunders, 414, note; 24 Ala. 450; 2 Maulé & Sel. 363; 3 ib. 502. The defendant gave evidence, strongly showing large embezzle-ments by Greene before the 10th July, 1850; and against this evidence plaintiff “offered no rebutting proof, and gave no evidence to distinguish the amount of defaults (if any) done before and after the 10th July, 1850.” This evidence consisted of strong facts, tending to prove a matter, without rebutting proof of any kind to disprove it. This is but another phrase for prima-facie evidence, which, until rebutted, is conclusive. The fact that defaults were committed before the 10th July was proved, and no rebutting proof was offered; conceding that the plaintiff’s proof tended to show defaults after that day, where was the proof to distinguish the amount of these subsequent defaults ? where was the proof by which the jury were to ascertain the amount for which the defendant was liable? The law, in such case, says for nothing. 1 How. (U. S.) 104, 259; 8 Peters, 418; 1 McLean, 493; 9 Cranch, 212; 5 How. (U. S.) 29; 8 Peters, 399, 383.</p> <p>2. The court charged the jury, at the appellant’s request, that "‘the evidence was not sufficient, in law, to prove that the bond was delivered as an escrow.” This charge threw the question of delivery out of the case, and rendered it impossible for the plaintiff to be harmed by any pleas touching that question. It is well settled, that error, without injury, will not reverse. — Stein v. Ashby, 24 Ala. 521.</p> <p>3. The pleas demurred to are good. The declaration showed that a bond, with two sureties, was required; and the pleas aver that the instrument was given to Greene, to be held until the third name was added, and then to be delivered. A bond may be delivered as an escrow to a co-obligor, or to the obligee. — Bibb v. Reid, 3 Ala. 91, and cases cited; 4 Barn. & Adol. 440; 2 Barn. & Cress. 82; 1 Blackf. 355; 12 Leigh, 479; 4 Watts, 21; 3 Wendell, 380; 2 Leigh, 151; 2 Geo. 203; 30 Maine, 110; 11 Ala. 466.</p> <p>4. The third additional plea, which was taken in short, alleges that the company held Greene as its debtor, (as distinguished from being liable for damages,) and ratified his act. It raises no objection to answering on account of the bills and notes, but says, in substance, that since the company has ratified the act, the defendant, though liable under the bond for so much money received and converted, is not liable for damages for the wrong. In other words, it says, “I will answer to this matter on your counts for money, but you are no longer in a condition to call it an embezzlement of bills and notes.” That the plea is good, see Story on Agency, §§ 254, 259; 3 Dallas, 357; 3 Johns. Ch. 261; 1 Hill, 240; Addison on Contracts, 407; 24 Ala. 81; 23 Ala. 783; 22 Ala. 405; 20 Ala. 216; 15 Ala. 705; 5 S. & P, 340.</p> <p>5. The indictments were only offered in evidence to identify the subject-matter of the plaintiff’s admissions; a purpose for which they were legal and proper.</p> <p>6. The evidence as to the city taxes received on deposit, was rightly excluded, not only for the reason that the charter of the company did not authorize it to receive money on deposit, but because no such matter was alleged in the declaration. The only allegation is, that Greene embezzled the money, notes and bills of the company; while the evidence was in reference to money paid in, “to be kept until called for or paid out.”</p> <p>7. The 12th charge of the court, as to the effect of the plaintiff’s judgment against Greene, was more favorable to the plaintiff than the law would justify; and the 14th is liable to the same objection.</p>

<p>[appeal prom decree op distribution op separate estate op deceased wife.]</p> <p>1. When husband, as distributee, shares in separate estate of deceased wife. — On the death of the wife, intestate, her surviving husband is entitled, under the provisions of the act of 1850, to one half of the separate estate secured to her under that act or the act of 1848; but he takes nothing under this statute in property which vested in the wife, by bequest, before the passage of the act of 1848, although the period of its distribution did not arrive until 1854.</p>

<p>Appeal from the Probate Court of Dallas.</p> <p>IN the matter of the estate of Leroy W. Chapman, deceased, which was regularly declared insolvent, and against which the appellants and others filed their claims as creditors, within the time allowed by law. The material facts shown by the bill of exceptions are as follows : The claims filed by the appellants were debts against the firm of L. W. Chapman & Co., of which the decedent was a partner. On these claims, suits were instituted against the surviving partner of the firm, judgments rendered, executions issued thereon, and returned ‘no property found.’ The appellants then brought suit against the administrator of the decedent, and recovered judgments against him ; and these judgments, on the plea of insolvency being interposed, were certified to the probate court, and no objection there made to them. “ It was proved, also, that the surviving partner of said firm of L. W. Chapman & Co. had sued upon several claims due said firm, and collected the money upon them by due process of law. This was the only proof tending to show that .there ever had been a joint fund, to which the partnership creditors could resort for payment; but there was no proof that said surviving partner, at the present time, has in his hands a joint fund, or assets, to which the partnership creditors can resort for payment. It was in proof, also, that said surviving partner was insolvent at the death of Chapman, and has remained so to the present time ; that he had been sued, as surviving partner of said firm, on claims amounting to about $2,000 ; and that executions upon them had been returned ‘ no property.’”</p> <p>Upon this proof, the court refused to allow the claims of the appellants, as partnership creditors, to be paid pari passu with the claims of the individual creditors, but decreed that they should be paid out of the residue (if any) of the estate after the individual creditors had been paid in full; and to this ruling the appellants excepted, and they now assign it as error.</p>

Tried before the Hoe. Alex. MgKiNSLRY. This action was brought by the administrator of Isaae Jones, deceased, against Thomas P. Miller, to recocer a certain slave, which the defendant .claimed .under a purchase .at sheriff’s sale under.attachment -against Mrs. Julia Canfield, who was a daughter'of plaintiff’s intestate.

<p>[trover against sheriff -for conversion of slaves claimed by plaintiff UNDER PURCHASE FROM DEFENDANT IN EXECUTION.]</p> <p>1. .Receipt of deceased person, admissibility and effect as evidence. — The receipt of a person since deceased, discharging a demand due to him, is evidence of the payment, and,of the person by whom the payment was made.</p> <p>2. Of contradicting a 'party’s own, witness: — Although a party is not allowed to .discredit his own -witness, he is not precluded from giving evidence which varies from the testimony of his witness. .</p> <p>3. General objection to.evidence. — A general objection to evidence, of which apart is legal; may be overruled: '</p> <p>4. Declarations explanatory of possession. — The declarations of a person in possession of slaves, to the effect that they belong to him, are competent evidence for the purpose'of explaining his possession.</p> <p>5. Charge withdrawing evidence from jury. — A charge which has the effect of with- ' drawing from'the consideration of the Jury testimony which tends, even slightly, to sustain either the plaintiff’s case or the defense, is erroneous.</p> <p>6. Construction of charges — While the charge of the court to the jury must be construed with reference to the proof, it would be improper for the appellate court to undertake to determine the weight of the evidence, and to construe the charge upon the -hypothesis that the preponderance of conflicting evidence was on one side or the other.</p> <p>7. Vendor’s retention of possession, after absolute sale, explained by contract of hiring.— The retention of possession by the vendor of a slave, after an absolute sale, may be explained by proof of á bona-fide hiring, the consideration of which was paid. ‘ ' /</p> <p>8. Consideration of such 'contract. — The retention of possession by the vendor under a, contract of hiring, the consideration 'of which was the board and clothing of the slaves, though a suspicious circumstance, may consist with fairness and honesty ; and the fact -that the keeping of them was expensive to him, would not, of .itself, authorize, the- court to assume that the hiring .was simulated and unreal. -•</p> <p>9. Statute of frauds as to three years possession of property. — £. possession of slaves under a bona-fide contract of hiring, for valuable consideration, is not within the second section of 'the statute of frauds; apd it makes no difference, in legal effect, whether the hiring is at will, from year to year, or for a definite - period.</p> <p>10. What is possession upon valuable consideration. — If the vendor of a family of slaves retains possession of them, after an absolute- sale, under a bona-fide contract of hiring, the consideration of which is their board and clothing, this would be a possession upon valuable consideration, if the chief value of the property was its prospective growth and improvement, and the board and clothing of-the slaves was a fair' equivalent for such services as they could render.</p> <p>11.. When fraud is question of law or of fad. — Although fraud vel non, when the facts are clear and undisputed, is a pure question of law-for the determination of the court; yet, where there is any conflict in the evidence, or where the facts are not clear and indisputable, the question should be 'left to the decision of the jury. . ■</p>

Tried before tbe Hon. Alex. McKiNSTey. This action was brought by Richard T. Forsyth against Charles S. Partridge, to recover the balance due on a contract for the building of a house, which was destroyed by fire before its completion. A cross action was also instituted by Partridge, to recover the amount which he had paid on the contract before the house was burned down. The two actions were tried together, by consent; and the jury returned a verdict in favor of Forsyth.

<p>[slander eor words spoken.]</p> <p>1. Conversion by joint owner, or tenant in common, not larceny. — A joint owner, or tenant in common, cannot be guilty of larceny by taking- and disposing of the whole property to his own use; unless he takes it out of the hands of a bailee, with whom it was left for safe keeping, and the effect of such taking would be to charge the bailee.</p> <p>2. Words held not slanderous. — The words, “He is mighty smart after night,” “Put him in the dark, and he would get it all,” falsely and maliciously spoken by defendant, of and concerning plaintiff, do not impute the crime of larceny, and are not in themselves actionable; nor are they slanderous, when alleged to have been spoken in a conversation had in the presence of third persons, “with reference to a dispute and difficulty which existed between plaintiff and defendant, relative to a certain tan-yard, and the hides and leather in said tan-yard, and the division and disposition of the same.”</p>

<p>Appeal from the Chancery Court of Mobile.</p> <p>Heard before the Hon. Wade Keyes.</p> <p>William MathesoN died, in 1836, in Clarice county, Alabama; and by his will, which was duly probated, specifically devised certain lands to his three daughters, Maria, Flora, and Caledonia. Letters of administration, cum test, ann., were granted on his estate, in 1831, to John Darrington and John Murphy; and on the death of Murphy, in 1842, Dar-rington became sole administrator. On the 28th October, 1844, Darrington, as administrator, and the widow of said Matheson, filed a petition in said orphans’ court, praying a sale of a portion of the lands of the estate, for the payment of debts. The petition alleged, among other things, “that said administrator has employed the profits arising from the plantation and slaves, to the payment and discharge of the indebtedness of the estate, so far as the same was available"; “that said indebtedness is large, and most of the debts of' a pressing and important character”; “ that it has become necessary that some portion of said estate should be sold, in order to discharge the debts which are now due and owing”; and “that the estate will be less injured by a sale of the above named portion of the lands, for the payment of its debts, than by a sale of the slaves.” The petitioners prayed that citations might issue “to, Jacob Pearson, "who married Maria Harwell, William Matheson, Flora Matheson, and Caledonia Matheson, children and heirs-at-law of said William Matheson, deceased, minors under the age of twenty-one years,” to show cause, &c.</p> <p>On the filing of this petition,' the court appointed the 9th December then next for the hearing, and ordered a citation to the widow and heirs named above. The citation was returned “not found” as to Jacob Pearson, and “executed by leaving a copy at the house, December 5, 1844,” as to all the others. On the 9th December, which was in vacation, the court granted an order of sale, the material portion of which is in these words: “ Such proceedings being had as the law requires, and no person appearing to dispute or resist the facts set forth in said petition; and this court, being fully satisfied from the enumeration of reasons contained in said petition, and other good and sufficient causes, that ,it will be more to the advantage of said estate to sell .a portion of the real estate, to pay debts due and owing, than to sell slaves,, doth order, adjudge, and decree, that said administrator be authorized to sell, on a credit‘of twelve months, (the purchasers giving notes, with two approved securities,) the following described lands,” &c.; “said land being decreed to be sold, in order to raise funds to pay debts due and’ owing from said estate. It is further ordered that said administrator report the same to this court by the first Monday in February next.”</p> <p>On the 2Tth October, 1845, it was ordered that the report of the sale “be received, recorded, and filed.” In this report the administrator says, “I advertised said lands, in four public places in said county, forty days previous to the day of sale; and on the 20th day of January, 1845, on the premises, said lands were sold at auction to Thomas Hearin, trustee of Mrs. Eliza Ann Flinn, he being the highest and best bidder for the same”; also, that said Hearin paid a part of the purchase money in cash, and gave “a good and sufficient note” for the residue.</p> <p>In September, 1854, Hearin, as trustee of Mrs. Flinn, and Mrs. Flinn and her husband, filed their bill in equity, setting forth the facts above recited, and further alleging, that the purchase money paid by Hearin was applied by Darrington to the payment of the debts of the estate, but no conveyance of the lands was. ever executed; that complainants took possession under said purchase, cultivated a portion of the land, sold the tract to one Deas, and placed him in possession; and that the heirs-at-law of said Matheson have instituted an action against said Deas to recover said land, on the ground that said saléis void. The bill seeks an injunction against the prosecution of the suit at law, and a conveyance of the legal title.</p> <p>The defendants answered the bill, insisting that the proceedings of the orphans’ court were void.</p> <p>The chancellor decreed in favor of the complainants, and his decree is now assigned as error.</p> <p>contended that the sale made by Darrington, as administrator, was a nullity, on the following grounds :</p> <p>1. The court had no jurisdiction to order the sale. The proceedings of the court, if valid, must find their warrant in the act of 1818, (Clay’s Digest, 195, § 18,) which provides, in substance, that whenever it shall be made to appear to the satisfaction of the court, on the petition of “any person interested,” that the estate, or those entitled to inherit the same, will be less injured by a sale of the land, for the payment of debts, than of the slaves, the court shall issue a citation to “all other interested persons,” &c.; and on the return of said citation “made known,” at the next term of said court, if no cause be shown, order such sale, &c. The personal estate of a decedent is primarily liable for the payment of his debts, (Clay’s Digest, 191, § 1;) and the act of 1818, taken in connection with this statute, necessarily presupposes that all the personal estate, except the slaves, has been so applied. The petition fails to make any such allegation: it only alleges that the administrator “has employed the profits arising from the plantation and slaves, to the payment and discharge of the indebtedness, so far as the same was available.” The further allegation, “that it has become necessary that some portion of said estate should be sold, in order to discharge the debts,” is simply the averment of a conclusion, and is insufficient. Non constat but that there was a sufficiency of personal property, besides slaves, to pay all the debts. The jurisdiction of the court is dependent on the petition; and if that fails to aver the facts necessary to give jurisdiction, the proceedings are coram non judice, and void. — Cloud v. Burton, 14 Ala. 347: Bishop’s Heirs v. Hampton, 15 Ala. 761.</p> <p>The administrator is not a “party interested,” within the meaning of the statute. The phraseology of the act of 1818 is different from that of the other statutes in pari materia, and clearly shows that only “those who are entitled to inherit the estate” are embraced in the words “any party interested.” What interest has an administrator in the estate? or in the question whether the lands or slaves shall be sold to pay debts? Nor does the statute include the widow, who has no estate in the lands, until dower is assigned her, and then only a life estate in one-third; and whose interest in the slaves is absolute. Her interest, therefore, is, or may be, adverse to that of the heirs-at-law; and a sale which would promote her interest, might prejudice theirs. It .is to be borne in mind, too, that these lands were specifically devised to the appellants, which excludes the idea of any interest in the widow; and it may well be doubted whether the court has jurisdiction, under the statute, to order the sale of lands thus situated. 12 Ala. 510; 8 Porter, 151. In Couch v. Campbell, 6 Porter, 262, it was held, that the court acquired jurisdiction by the petition of the administrator; but it seems to have been taken for granted, in that case, that the previous case of Wyman v. Campbell, p. 219, was conclusive on the question, and thus no attention was paid to the difference in the phraseology of the acts of 1818 and 1822. In that case, too, the lands were undevised. The case of Conch v. Campbell is the only one in which the act of 1818 has been construed; and that case, it is insisted, is entitled to no weight as authority, because it assumed, without consideration, the very point which the court was called on to decide.</p> <p>2. But, if the court acquired jurisdiction of the subject-matter by tho filing of the petition, it did not acquire jurisdiction of the “other parties interested.” This presents the question, whether a proceeding under this statute is in rem, or in 'personam', a question now for the first time presented to this court. In Couch v. Campbell, the heirs-at-law were duly cited to appear; and the court thus having jurisdiction of the parties, this question could not arise, and what was said respecting it by the judge who delivered the opinion was more dictum. The other cases in which the question is noticed, arose under different statutes, in which entirely different phraseology is employed, and the nature and object of which are manifestly distinct from the act of 1818. The object of this statute was, not to empower tho administrator to change the order of administration, but to enable the heirs-at-law to elect whether they would have the land sold rather than the slaves. A “party interested” must file the petition, and “all other interested persons” must be cited to appear; and the proceedings are to be conducted between them. The object is not to sell that which, of necessity, must be sold, as in a proceeding under the act of 1822; but that the parties interested might determine, or, in case of their disagreement, have the court determine for them, whether it would be less injurious to them to sell the land than to sell the slaves. It is not made the duty of the administrator to take a step in the matter; nor does it make the slightest difference to him whether the debts are paid by a sale of the slaves or of the land.</p> <p>8. The order of sale is void, because, in the first place, it was made in vacation; whereas the statute only authorizes it to be made “at the next term,” which must mean the next regular term. It is void, also, because it does not prescribe that the sale shall be public, that a specified notice shall be given, and how it shall be given; and fails to designate the place of sale. Although the statute does not say that the sale shall be at the court-house door, yet, by analogy to judicial sales, it should be held there. — Clay’s Digest, 216, § 76; Pollard v. Cocke, 19 Ala.</p> <p>4. The sale itself is void, because it was made on the premises, and because the statutory notice was not given.'</p> <p>But if the proceedings of the orphans’ court are valid, the bill should have been dismissed, because the complainants have a complete and adequate defense at law. — Lightfoot v. Lewis, 1 Ala. 475.</p> <p>Under the former decisions of this court, the proceedings of the orphans’ court were in the nature of a proceeding in rem, and the jurisdiction of the court-was complete. — Wyman v. Campbell, 6 Porter, 219; Couch v. Campbell, 6 Porter, 262; Perkins v. Minter, 7 Ala. 864; Duval v. McLoskey, 1 Ala. 732; Duval v. P. & M. Bank, 10 Ala. 652; Thompson v. Toulmie, 2 Peters, 157; 2 How. U. S. R. 319. It is now too late to question the propriety of these decisions. They have become a settled rule of property, on which many titles depend,</p>

Tried before the Hon. C. W. Rapier. In this case, an original attachment was issued, at the suit of J. C. Dubose & Co., against Hull, Robinson & Co.; and the appellant, who is the clerk of the city court of Mobile, was summoned as garnishee. Judgment by default was rendered against the defendants in attachment, and at the same term a judgment was rendered against the garnishee, on his answer.

<p>[ACTION AGAINST RAILROAD COMPANY POR FAILURE TO DELIVER FREIGHT.]</p> <p>1. Power of private corporation to appoint agent. — A railroad company is a private corporation, and has power, independently of any provision in its charter, to appoint an agent in the constrnotion of its road, or in the transportation of its freight.</p> <p>2. Mode of appointment. — The appointment of an agent need not he evidenced hy the written vote of the corporation or its officers, hut may be inferred from their adoption of the agent’s acts.</p> <p>3. Mvidence tending to prove ratification of agency. — In an action against a railroad company, to recover damages for its failure to deliver certain bales of cotton, the receipt for which was signed “R. B. S., R. R. agent, 'per J. R. B.”, said B. testified, on behalf of the plaintiff, that he was appointed sub-agent of the company by said S.; that the president and superintendent of the road knew that he was acting as such agent, and made no objection; that the officers of the road had frequently given him directions about the business ; and that freight had been delivered, on at least two occasions, on the production of his receipts, in similar form with the above. Held, that the evidence was admissible, as tending to prove a ratification of the agency.</p> <p>i. General objection to evidence. — A general objection to evidence, of which a part is legal, may be overruled.</p> <p>5. Admissibility of custom to affect written contract. — Evidence of a custom cannot be received to vary or contradict the express terms of a written contract, but is admissible to add new terms, as to which the writing is silent; as where a railroad company gives a receipt for freight, “to be delivered to R. R. agent” at the terminus of the road, and the agent there deposits it in a warehouse not belonging to the company, evidence of its custom to deposit freight in that warehouse is admissible for the company, when sued for the loss of the cotton.</p>

<p>Appeal from the City Court of Mobile.</p> <p>Tried before the Hon, Alex. McKinstby.</p> <p>This action was brought by Hugh McCaw against James Kelly, and the second count of the amended complaint was as follows : — “ The plaintiff claims of the defendant the further sum of $3,000, as damages caused by said Kelly’s having fraudulently and wrongfully induced the sheriff of Mobile county to release and discharge from his possession a negro man, named Dick, and a negro woman, named Matilda, which had been levied on, and were held by James F. Hutch-issoti, as sheriff of said county, to satisfy an execution issued on a decree, of the chancery court of the first district of the southern chancery division of the State of Alabama, on the 6th July, 1852, in favor of the said plaintiff, and against the goods and chattels, lands and tenements of Harvey Snow and Wm. M. McConaghy, for the sum of $7,269 85 debt, and $1 10 costs ; which said negroes the said defendant removed, or caused to be removed and taken away, so that they could not afterwards be found. And said plaintiff avers, that said decree is still in force and unsatisfied, and that said Snow & McConaghy are insolvent, and had, at the time of said wrongful act of the defendant, no other property out of which plaintiff’s said execution could have been satisfied.”</p> <p>The defendant demurred to the amended complaint, on the ground “ that the facts alleged in it do not create any liability on the defendant”; but the court overruled the demurrer. This is the only error assigned.</p> <p>The complaint shows no cause of action. Admitting that the common law gives a remedy for every wrong that works an injury to another; yet, when a specific remedy is given, no other can be resorted to, in the absence of statutory provisions. Upon the facts stated in the complaint, the plaintiff has a clear remedy against the sheriff, at common law ; and our statutes make it available against his sureties. — Webb v. Bumpass, 9 Porter ; 2 Saunders, 130. Besides this remedy, a garnishment would lie against the defendant. There is, then, no necessity for resorting to an action which is unprecedented, and which was never attempted, except in the case of Barker v. Mathews, I Denio, 335 ; and there it failed. See, also, Lamb v. Stone, II Pick. 527 ; Wellington v. Small, 3 Cushing, 145 ; Platt v. Platt, 13 Iredell, 455. Besides, the wrong complained of was an immediate injury to the sheriff, who might, therefore, have compromised or released the cause of action. The plaintiff, then, is suing for a cause oí action that belongs to another-; and this is the distinction between this case and Yates v. Joyce, 11 Johns. 136.</p> <p>It is a maxim of the law, that “where any wrong or damage is done to a man, the law gives him a remedy.” — 4 Burr. 185. When cases are new in principle, legislative interposition is necessary to remedy the grievance; but where a case is new in the instance, and only requires the application of recognized principles, courts of justice are as competent to apply the remedy as they were two centuries ago. — 3 Dura. & East, 63 ; 4 Comstock, 110. The case at bar is only “new in the instance,” while the principle upon which it rests is as old as the maxim above quoted. The following principles are clearly deducible from the cases cited :—</p> <p>1. That for every wrong, accompanied by an injury to another’s rights, the law gives a remedy by action on the case. Cro. Jac. 694; Carthew, 3-4, cited in 6 Watts, 304; 2 Wend. 559 ; 1 Hall’s (N. Y.) R. 210 ; 7 Pick. 542, 550 ; 27 Maine, 436;-7 Wendell, 229; 4 Comstock, 110; 11 Johns. 136; 8 Barbour, 518 ; 15 Ohio, 726 ; 6 Watts, 304 ; 2 Penn. 126; 8 Serg. & Rawle, 522 ; 2 Tyler’s (Vermont) R. 11.</p> <p>2. That the party is liable, though the act be done innocently, and without moral turpitude. — 7 Pick. 542; 27 Maine, 436.</p> <p>3. Especially when an act, from which an injury accrues to a third person, is fraudulently and wrongfully done. — 1 Hall, 210 ; Carthew, 3-4.</p> <p>4. That case is maintainable, though there be no connection or privity between the plaintiff and defendant. — Authorities cited in 1st paragraph.</p> <p>5. That the action may be maintained, though the plaintiff has a remedy against another person in another form. — 7 Pick. 550 ; 1 Hall, 210.</p> <p>6. That it is not necessary, in order to maintain the action, to allege or prove a conspiracy between the defendant and the sheriff; nor to join the two in one suit. — 7 Hill, 107 ; 7 Cowen, 445.</p> <p>7. That it is not necessary, in order to maintain the action, that the plaintiff should have an absolute property in the subject-matter of the wrong: it is sufficient if he has a “valúa-ble right,” of which he is deprived. — 2 Barn. & Adol. 817 ; 2 Stephens’ N. P. 1005.</p> <p>The case of Barker v. Mathews. 1 Denio, 385, cited for the appellant, was a case of minor importance, and received but little attention from the court. It is contrary, in principle, to the whole learning of the profession, as shown by the above citations. It differs materially from the case at bar, in that it does not show that there was no other property liable to satisfy the execution. It has been dissented from, impliedly, in Marsh v. White, 3 Barbour, 518. It is predicated upon two ideas, which are equally vicious in law : 1st, that the plaintiff has no remedy against the defendant, because he has one against the sheriff; and, 2d, that the plaintiff had no lien upon, or property in the goods.</p>

<p>Appeal from tbe Chancery Court of Monroe.</p> <p>Heard before the Hon. Wade Keyes.</p> <p>Linda Dean, who was the daughter of John Dean, intermarried with William R. Hamilton in 1823, being at the time the owner of a negro woman named Hannah, who then had two children, and who was in the possession of said John Dean. On the death of said Dean, intestate, prior to 1837, letters of administration on his estate were granted to John Dean, jr., and Robert Lee. Mrs. Hamilton died, intestate, in 1837, before the final settlement of the estate of her father, leaving as her heirs-at-law her two children, Rebecca, who afterwards married Warren B. Gwynn, and Charles D. Hamilton ; and letters of administration on her estate were granted, in January, 1838, to her surviving husband, William R. Hamilton. Soon afterwards, said Hamilton, as administrator of bis deceased wife, instituted two actions at law, one against said John Dean, jr., and the other against said Robert Lee, for the recovery of several negroes, together with damages for their detention; and recovered judgments, in 1842 and 1843, for the slaves, with damages; which judgments were fully satisfied, by the delivery of the slaves, and the payment of the damages. On the final settlement of the estate of John Dean, sr., in 1842, Mrs. Hamilton’s distributive share, amounting to over $2,000, rvas decreed to her said husband, as her administrator, and was received by him under the decree. In the latter part of the -year 1842, said Hamilton, as administrator of his said wife, delivered to each of her children several of the slaves which he had recovered in the actions at law, and which were delivered to them as a part of their distributive shares of the estate.</p> <p>In November, 1852, Gwynn and wife filed their bill in equity against Hamilton/for an account and settlement of his administration on the estate of his said wife. Hamilton answered the bill, and set up several defenses which it is unnecessary to notice. He denied that his wife was possessed of any separate estate at the time of her death, or that she left any choses in action, except her distributive share of her father’s estate. .In reference to the negroes, Hannah and her children, he alleged that they belonged to his wife at the time of her marriage with him, under a gift from her grandfather, and were in the possession of her father as her natural guardian and bailee; that her father admitted her title to him, and afterwards held them as his bailee; that his marital rights thereby attached to the slaves; and that the subsequent suits, in' the name of himself as administrator of his wife, were so instituted by the advice of counsel. His delivery of the slaves to Mrs. Gwynn and her brother, he alleges, -was in ignorance of his own rights, and on the express understanding that they were received in full satisfaction of all claims against him arising out of his wife’s estate.</p> <p>On the part of the defendant, it was proved that, under the advice of counsel, he instituted a suit against his father-in-law, in the names of himself and wife, for the recovery of the slaves Hannah and her children; that Mrs. Hamilton and her father both died pending this suit, and it'was then suffered to abate; and that the subsequent suits against Lee and Dean were instituted, under the advice of counsel, to recover the same slaves.</p> <p>The chancellor sustained the bill, and ordered a reference to the register of the. matters of account; holding, that the . defendant was chargeable with the money which he had received as his wife’s distributive share of her father’s estate; that the slaves Hannah and her children were not assets of the estate, but belonged to the defendant jure m'ariti; that his institution of the suits for their recovery did not qstop him from asserting his title, but was, at most, an admission against interest; and that the complainants, having received a portion of these slaves in discharge of the defendant’s liability as administrator, must be charged with their value at the time of the delivery.</p> <p>The complainants appeal from this decree.</p> <p>Hannah and.her children belonged to the estate of Mrs. Hamilton. Whatever rights Hamilton may have had, he sued for, and recovered them, as administrator of his wife; thereby admitting that he had no title to them, and that they belonged to his wife. This is a conclusive estoppel against him and his representatives. — 1 Greenl. Ev. §§ 27, 627 a, and authorities there cited. The hire and damages recovered in those actions, must be governed by the decision as to the right to the slaves. The slaves delivered by Hamilton to the complainants, were delivered and received as a part of Mrs. Gwynn’s distributive share of her mother’s estate; and they cannot be allowed as a credit to the defendant, in accounting for the money received by him as Mrs. Hamilton’s distributive share of her father’s estate.</p> <p>1. The value of the slaves may be allowed to the defendant, under the answer merely, against the complainants’ demands. If money had been distributed, on a partial settlement, under the supposition that it belonged to the estate, when in fact it did not, equity would allow it against the distributees, on final settlement, in dimnuition of tbeir claims, without a cross bill; and there can be no material distinction between that case and this. — Montgomery v. Givhan, 24 Ala. 568; Craig v. McGehee, 16 Ala. 41; Breckenridge v. Floyd, 7 Dana, 456.</p> <p>2. That the1 mistake was one of law, and not of fact, does not affect the right to the allowance. — American Jurist, vol. 5, 146, 371; 4 Dana, 314; 3 B. Monroe, 510; 4 ib. 190; 19 'Conn. 548; 7 Geo. 64; 2Bailey, 623; 2McCord’s Ch. 455; 1 Hill’s Ch. 251; 6 Har. and John. 500 ; 11- Ohio, 223, 480;. 8 Wheaton, 215; 1 Edw.467;2Barb. Ch. 505. Thesupreme court of .Alabama has recognized this principle in several cases. — Craig v. McGehee, 16 Ala. 41; Betts v. Betts, 18 Ala. 787; Larkins v.'Biddle, 21 Ala. 252; Stone v. Hale, 17 Ala. 557. Where the draughtsman, from ignorance or mistake of what the law is, fails to use words of such legal import as will effectuate the intention of the parties, and the instrument is executed by them under the belief that he has used proper words, it is idle to say that this is a mistake of fact, and not of law. The mistake is in the legal effect of the language used; and the mistake in the case at bar is of the same character.</p>

Tried before the Hon. Thomas A. Waleer. This action was brought by Samuel Gann against W. C. M. Allman, to recover a stallion, together with damages for its detention; and the bill of exceptions is as follows :— “ On the trial of this cause, it was admitted by the defendant, that the plaintiff owned the horse sued for at the time of the levy and sale under the execution under which the defendant claims, and that he has not since parted with his> title, except by virtue of…

<p>Appeal from tbe Circuit Court of Conecuh.</p> <p>Tried before the Hon. O. W. Rapier.</p> <p>This action was brought against the appellant and othera, as owners of the steamboat ‘A. B. Shaw/ to recover damages for the loss of fifteen bales of cotton. The bill of exceptions states that, “ among other questions, it became material to inquire whether there was enough of officers and hands on said boat, and whether they were skillful and competent.” The defendants offered in evidence the deposition of one James Burroughs, which was taken on interrogatories and cross-interrogatories. The plaintiff moved the court to exclude from the jury a portion of one of the answers to the interrogatories in chief, which was in these words : “ There was a sufficiency of officers and hands on said boat to run her in the manner which she was to run.” The court sustained the motion, and excluded the evidence; and the defendants excepted. This is the only matter assigned as error.</p>

Tried before the Hon. Wade Keyes. This bill was filed by Mrs. Louisa P. Roper, suing by Her nest friend, against her husband, Joseph'E. Roper ; audits object was, to remove him from the trusteeship of her separate estate, and to compel an account and settlement of the trust.

Heard before the Hon. Alex. McKinstey. This bill was filed by Calvin E. Parish, against the administrator of Augustus T. Redus, deceased ; seeking to have an absolute bill of sale for several slaves declared a mortgage, and to recover the balance realized on a sale of them by the mortgagee after deducting the amount of the debt.

<p>Appeal fi'om the City Court of Mobile.</p> <p>Tried, before- the Hon. Alex. McKinstey.</p> <p>This action was brought by the appellant against the owners of the steamboat ‘ Sallie Spann’, to recover damages for the defendants’ failure to deliver a cash letter, containing $400 in bank-notes, which was delivered to the first clerk of said boat by McDowell, Withers & Co., at Mobile, to be carried to the plaintiff in Pickens county. The complaint contained two counts ; the first alleging that the letter was received by the defendants, “ as common carriers, to be delivered to the plaintiff in Pickens county, according to law, for a rewardand the second, that the letter was “received by them, to be delivered, according to law, to the plaintiff in Pickens county.” Evidence was adduced by the plaintiff, showing that the letter, marked “ cash $400,” was delivered to the first clerk of the steamboat at Mobile, addressed to the plaintiff at Pickensville landing on the river ; that this was the usual way in which cash letters were transmitted from persons in Mobile to persons residing on or near the river in the interior ; that no compensation was offered or demanded, nor was any receipt or bill of lading given ; that the letter was never seen or heard of afterwards ; and that there was a post-office at Pickensville landing. On the part of the defendant, several witnesses, who had acted as clerks on different boats plying on the rivers of this State, testified that the carrying of cash letters was a mere gratuity, and was a matter with which the boat had no connection; that such letters were always delivered to the clerk, who alone, according to their understanding of the custom, were responsible for the faithful discharge of the trust. The court charged the jury, (1st) “that if they should find that the clerk received the letter, and failed to deliver it, the statute of the United States did not, of itself, without any other contract, express or implied, have such effect as to máke the defendants common carriers for hire”; and (2dly) “that if the loss was occasioned by the negligence of the defendants, then, before the plaintiff would be entitled to recover under “the second count of his complaint, he must show that the loss of the letter by the boat was occasioned by some, gross negligence.” These charges, to which exceptions were duly reserved, aré now assigned as error.</p> <p>1. The first charge was erroneous. It was proved that there was a post-office at Pickensville, and it was the duty of the defendants, under the acts of congress, to have deposited the letter in that office.— U. S. Statutes at large, vol. 4, p. 104, §6 ; ib. vol. 5, p. 136, § 13. These statutes further provide, that the officer so depositing letters shall be paid, &c. The defendants, then, having the right to compensation, cannot avoid the responsibilities of common carriers, by violating their duty, and declining tffe hire. — Knox v. Rives, Battle & Co., 14 Ala. 249, 261.</p> <p>2. The second charge is erroneous, in that it imposes on the plaintiff the burden of proving more than the law requires of him. It asserted, in effect, that he could not recover on proof of the delivery to the defendants, their undertaking to carry it, and their failure to deliver it ; but that he must prove what was done with the package, and, if lost, show when and how lost. The plaintiff was not required to show, gross negligence. Where one undertakes to perform service for another, compensation is always implied, unless there is an express stipulation to the contrary. The right to compensation is not yielded, because some of the boats may have performed the service without charge ; and where the right to compensation exists, the carrier is liable for ordinary negligence. — 14 Alá. 249.</p> <p>1. The acts of congress, on which the appellant relies, are mere postal regulations, defining the liabilities of mail-carriers to the Federal government, and having no effect on contracts between them and third persons. If there whs no contract for compensation, the boat was not a coinmon carrier. — Conwellv. Yoorhies, 18 Ohio, 523.</p> <p>2. Not being a common carrier, the boat was liable only for gross negligence. — Angelí on Carriers, §§ 17, 21; Sewall v. Allen, 6 Wendell, 335.</p>

Tried before the Hon. Thomas A. WalkeR. .Assumpsit by Fleming Jordan, suing for the use of Daniel B. Turner, against Samuel Hatton ; who having died pending the suit, it was thereupon revived against his administrators.

<p>Appeal from the Chancery Court of Monroe.</p> <p>Heard before the Hon. Wade Keyes.</p> <p>The facts are stated in the opinion of the court.</p>

Tried before the Hon. Andrew B. Moore. This action was brought by the appellee, to recover damages for the defendant’s breach of a contract, by which plaintiff agreed to serve him as overseer for the year 1853, at a stipulated price; the complaint alleging, that the defendant, wrongfully, and without cause, discharged plaintiff before the end of his term of service, and prevented him from performing his part of the contract, as he was ready and willing to do.

<p>[DETINUE'FOR SLAVE — DELIVERY OF BILL OF SALE.]</p> <p>1. Title passes by delivery of bill of sale. — The delivery of a hill of sale to the purchaser of a slave, of itself, passes the title to him; and the vendor, when sued by a sub-purchaser, cannot avoid the effect of it, by proof of a parol agreement that the delivery was conditional, and that the title was to revest in him in the event the purchaser failed to give his note, with a specified surety, for the purchase money. (Rice, O. J., dissenting, held, that the question of delivery vel non involved the consideration of the parties’ intention, which was a question of fact for the determination of the jury, and which the evidence did not authorize the court to assume without hypothesis; and that contemporaneous oral declarations of intention, relating to the execution, as contra-distinguished from the construction of the instrument, were admissible as part of the res gestae.)</p>

<p>Appeal from the Circuit Court of Mobile.</p> <p>Tried before tlie Hon. C. W. EapieR.</p> <p>This action was brought'by the appellants, and the amended complaint was in these words : “ The plaintiffs; who are merchants, residing in.the city of New Orleans, claim of the defendant,, a resident of Mobile, $400, • for this : — One M. Eranceschi, who carried on the business of a confectioner in the city of Mobile on the 26th July, 1858, desired to open an account with plaintiffs, and to purchase from them.goods necessary and proper in his line of business ; and the defendant, knowing this, promised said plaintiffs, that if they would, from time to time, sell, and deliver to said Eranceschi such goods as he required, on the usual credit upon which such articles were sold, he ■ (said defendant) would pay said plaintiffs for such goods, if the said Eranceschi failed to pay for the same; which promise plaintiffs accepted; of which defendant had due notice. . And plaintiffs aver, that, relying on said promise so made by defendant, they did, from said 26 th July, 1853, up to the 23d August, 1854, at their store in said city of New Orleans, sell and deliver to said M.: Eran-ceschi goods necessary and proper in his line of business, to the amount of $750 90.; and they further say, that during that time — that is, between the 26th July, 1853, and the 24th August, 1854 — said Franceschi paid to said plaintiffs, from time to time, the sum of $400 ; so that, on the 24th August, 1854, which was the last time plaintiffs sold goods to said Franceschi, he was indebted to them, for goods so sold and delivered, in the sum of $350 90. And plaintiffs aver, that the usual credit, on which such articles as they sold to said Franceschi are, and then were, usually sold, was ninety days; that such was known, both to said Franceschi and said defendant, to be the usual term of credit; and that said goods were sold on the usual term of credit. And said plaintiffs further aver, that on the 1st day of December, 1854, they requested said Franceschi to pay them said sum of $350 90, due them as aforesaid, but he then and there failed to pay the same, and was then, and ever since has been, insolvent; of all which said defendant had due notice, whereby he became, and is, liable to pay plaintiffs said sum,” &c.</p> <p>The defendant demurred to the amended complaint, on the following grounds: “ 1. Because, admitting that defendant promised as therein alleged, and that said Franceschi after-wards became plaintiffs’ debtor, at different times, upon a credit of ninety days, yet said promise was not a continuing guaranty ; by means whereof, defendant would be liable only for the first of the series of debts contracted by said Fran-ceschi with plaintiffs, and the amount of said first debt is not alleged. 2. Because, conceding that said alleged promise is a continuing guaranty, it was plaintiffs’ duty, upon the maturity of each successive debt contracted by said Franceschi with them at ninety days, as well to pursue him therefor (unless he was then insolvent) at the first court thereafter, if he made default, as to give defendant reasonable notice of each of said defaults ; and the said facts, as to due diligence and notice of each particular debt contracted, are not alleged in said complaint.” The court sustained the demurrer, and rendered judgment for the defendant; and its rulings in this behalf are now assigned as error.</p> <p>In cases of continuing guaranty, it is not necessary to give notice of every transaction : it is only necessary to give notice of the amount due within unreasonable time after the transactions are closed.— Clark v. Remington, 11 Metcalf, 366 ; Reynolds v. Douglas, 7 Peters, 113 ; Louisville Man. Co. v. Welch, 10 Howard, 474 ; Whifney v. Groot, 24 Wendell, 82. But the insolvency of Eranceschi is averred in the complaint; and this dispenses with the necessity of giving notice of his default, unless the creditor can show probable loss or injury from the want of it. — 10 Howard, 474 ; Lawrence v. McAlmont, 12 Peters, 497 ; Farmers’ & Mechanics’ Bank v. Kercheval, 2 Gibbs, (Michigan,) 504. But, since the complaint averred notice, the reasonableness of the notice was a question for the jury, under proper instructions from the court.</p> <p>1. The promise alleged is not a continuing guaranty ; consequently, if the defendant was liable at all, it could only be for the first in the series of debts contracted.- — 8 Johns. 92. The complaint is defective, in not stating the amount of this debt, nor how or when it was to be paid. — 25 Ala. 140. There is no allegation of default as to this first debt; nor of a demand by the institution of a suit against the principal debtor ; nor of the debtor’s insolvency at that particular time. — 25 Ala. 140, 151 ; 6 Ala. 749-50.</p> <p>2. Conceding that the promise is a continuing guaranty, still the complaint is fatally defective. The allegation of the debtor’s default is not sufficiently specific to fix the guarantor’s liability, the contract being uncertain in its amount. — 11 Met-calf, 361 ; 1 Mason, 323 ; 12 Pick. 135 ; 8 ib. 423 ; 7 Peters, 126 ; 22 Maine, 175 ; 13 Conn. 28 ; 15 Conn. 457 ; 3 Denio, 512. The alleged notice is obviously unreasonable, and this was a question of law for the court.- — 22 Maine, 175; 13 Conn. 28 ; Parsons on Contracts, vol. 1, 502; 16 Ala. 747; 17 Ala. 231 ; 4 Ala. 449 ; 1 Chitty, 237 ; Plowden, 361.</p>

<p>[ASSUMPSIT ON PROMISSORY NOTE — SET-OEF.]</p> <p>1. Sufficiency of evidence guesiion for jury. — Where notes on plaintiff, purchased from a third person, are offered as a set-off, and there íb some evidence tending to show that the ownership of them passed by the contract of sale, while the bill of exceptions does not purport to set out all the evidence, there is no error in overruling the plaintiff’s motion to exclude the set-off from the jury.</p> <p>2. SiaMe of frauds as to contract of sale. — A contract for the sale of promissory notes, at a price not exceeding two hundred dollars, is not required to be in writing, although the notes are not delivered at the time, nor any part of the price paid.</p> <p>3. Set-off.- — Under the Code, (§§ 2129, 2240,) a party may use as a set-off a promissory note of which he is the equitable owner, although he may not have the legal title.</p> <p>4. When title passes by contract of sale. — Where any thing remains to be done at the time the contract is made, to determine the identity, quantity, or price of the thing sold, the contract is executory, and the title does not vest. in the purchaser ; but a sale of promissory notes, at a price not exceeding two hundred dollars, may be so made, without writing, without delivery of the notes, and without payment of any part of the price, as to invest the purchaser with the equitable title and ownership.</p> <p>5. 1'ransferrm incompetent witness for the transferree. — Under the Code, (§ 2290,) the transferror, or assignor of the note sued on, is not a competent witness for the plaintiff.</p>

<p>[ACTION von DAMAGES AGAINST INNKEEPER FOR LOSS OF GUEST’S WATCH.]</p> <p>1. Exception construed. — -"Where the bill of exceptions, after stating that the defendants objected to the reading of a deposition, on the ground that the witness was incompetent, proceeded thus: “This objection was overruled; and the defendants, by their counsel, then objected to the entire deposition as improper and illegal testimony. This objection was overruled, and the defendants excepted,” — held, that the exception referred only to the last ruling of the court, and did not reserve the question of the competency of the witness.</p> <p>2. General objection to evidence. — A general objection to an entire deposition, “as illegal and improper testimony,” when a part of the evidence is legal and proper, may be overruled.</p>

<p>[CASH AGAINST PART OWNER OH STEAMBOAT TO RECOVER DAMAGES EOR LOSS OF SLAVE DROWNED BT NEGLIGENCE OF DEFENDANT’S SERVANTS.]</p> <p>1. Buie as to liability where both parlies are in fault. — The general rule of law, that neither party can recover damages where both are in fault, only applies, it seems, to faults which operate directly and immediately to produce the result, and cannot be invoked by a party who failed to use ordinary care, when that degre of care might have prevented the act which caused the injury.</p> <p>2. Accident, without design, may be negligence. — The term negligence, in its legal acceptation, includes acts of omission as well as of commission, while diligence implies action as well as forbearance to act; an act, therefore, which is the result of an accident, may constitute a legal cause of action.</p>

<p>[SUMMARY PROCEEDING AGAINST CIRCUIT CLERK AND SURETIES.]</p> <p>1. Nature of such proceeding. — A summary proceeding against a circuit clerk and the sureties on his official bond, for his failure to pay over to the county treasurer, on demand, all flues, forfeitures, or other moneys belonging to the county, (Code, 2596-7, 2616-21,) is, as to the parties who have received notice of the notion, joint only, and not several as well as joint, and is governed hy the rules which apply to joint actions.</p> <p>2. Confession of judgment. — A. confession of judgment by the cleric does not authorize the rendition of judgment against either himself or the other defendants.</p>

Tried before the Hon. C. W. Rapier. This action was brought by Peter Desplous against Henry C. Russell, to recover the possession of a city lot in Mobile, and was commenced in August, 1851. The case was brought to this court at the June term, 1854, and was then reversed and remanded. — See 25 Ala. 514. The complaint was then amended in the court below, as shown in the opinion ; and a demurrer to the amended complaint having been overruled, a trial was had on issue joined.

<p>Appeal from the Chancery Court of Pike.</p> <p>Heard before the Hon. Wade Keyes.</p> <p>This bill was filed by Mrs. Belinda Mosser, seeking a divorce from her husband, Samuel Mosser, on the ground of his alleged adultery with a mulatto girl named Holland, the property of his wife. The defendant moved to dismiss the bill for want of equity, on the ground that adultery cannot be committed with a slave ; but the court overruled the demurrer, and on final hearing, on bill, answer, and proof, rendered a decree for the complainant. The testimony in the case, in substance, was as follows :</p> <p>On the part of the complainant, Mrs. Faitha Wood was the only witness who was examined to prove the alleged adultery ; and her testimony, after stating that she lived at the defendant’s house, in the capacity of housekeeper, during his wife’s absence in Florida, was as follows : “ The first thing I noticed of the defendant, in connection with the girl Holland, was, that a little negro girl about the house came and told Holland that her master said she must go there in the store; and this was repeated four mornings in succession, directly after breakfast. I saw her go into the store one morning, and, after remaining there about half-an-hour, come out again ; the other mornings I only saw her go out of the bouse when tbe little girl came after her. One morning Holland came into the house, with some white homespun, which she said her master had given to her in the store. The defendant appeared very fond of Holland’s company — was frequently in the kitchen with her when she was cooking; she frequented the store, and I could hear two persons talking in the store, which I took to be Holland and the defendant; and at these times I have seen her come out of the store, and when there was no other company there with him, he was with Holland. The defendant said in my presence, that he told his wife to go to Elorida, but that he was not going himself — that he was going to stay where'he was. At the time of the intimacy between him and Holland', Mrs. Mosser was in Elorida. He further said, that he did not intend to sell the house where he lived, but was going to live there another year, and Holland would keep house for him. I have seen her go into his bed-room, and the door was shut-to ; and I heard a voice, which I took to be Mosser’s, say, ‘lie down.’ I heard two people talking in the room for about an hour, which I took to be the defendant’s voice and Holland’s. There was no one else in the room that I know of. This was about two weeks after she went into the store on the morning previously referred to. It was about 8 o’clock at night when she went into the room, and she had not come out at 2 o’clock in the morning ; after which I paid no further attention to them that night. I know nothing of his treatment of the girl, except that he fondled around her more than he did around his wife when she was at home ; and' the girl acted impertinently towards me — sometimes she would not speak to me, and when I said anything'was so, she would frequently say it,was not-so. I went to the door of Mosser’s room, three mornings, after he went out, and saw the impression where two persons had laid in the bed, and two headings : it was a large feather bed. I then told him, that I was going away from there ; he asked me, what was the matter ; and I replied, that Holland would not mind anything I said to her. He then called her in the house, and asked her what was the matter with her and me ; she replied, nothing'; I told him, that.when I said anything was so, she would say it was not so ; and she replied, that, she did not say it, and then flirted out of the room with a great air. I have seen her, on two occasions, come out of his room with him about 8 o’clock in the morning. I never at any time saw them in bed together.”</p> <p>Her answers to the cross-interrogatories are immaterial.'</p> <p>On the part of the defendant, it was proved by several witnesses, that during his wife’s absence in Florida he was afflicted with a cutaneous eruption on his legs,-and was under medical treatment for it; that his legs were much inflamed and swollen, and required to be dressed with poultices several times a day. One of his witnesses, Mrs. Williams, further testified, that she was at his house frequently during his wife’s absence, and while Mrs. Wood was actingas his housekeeper; that the girl Holland was the only servant about the house ; that there was no good feeling between Mrs. Wood and Holland ; that on one occasion, while she was at the house, she saw the defendant, on the complaint of Mrs. Wood, give Holland a severe whipping ; that she heard him tell Mrs. Wood to whip'the girl whenever she was disobedient; and that she (witness) sent the girl to defendant for the homespun about which Mrs. Wood testified.</p> <p>The chancellor’s decree, and the overruling of the motion to dismiss the bill for want of equity, are now assigned as error.</p>

Tried before the Hon. Nat. Cook. This action was brought by John H. Burton against George ■ S. Holley, to recover damages for the defendant’s wrongful act in taking'and withholding from plaintiff six slaves which he had hired from defendant for the year 1854 ; and the defendant pleaded “not guilty, in short by consent, with leave to give any special matter in evidence.” On the trial, as appears from the bill of exceptions, the plaintiff offered to prove, “ that he owned a…

<p>Appeal from the Circuit Court of Mobile.</p> <p>Tried before the Hon. C. W. Rapier.</p> <p>This action was commenced in September, 1852, and the trial was had in December, 1854. On the trial, as appears from the bill of exceptions, the plaintiff offered a deposition in evidence, “ to which the defendant objected, because it was taken without an order of court, when the deposition of the same witness had been previously taken to testify to 'the same facts ; and on the further grounds, that the commissioner does not state in his certificate that the witness was duly sworn, nor that he had personal knowlege of the identity of the witness, nor was the identity of the witness made to appear in any other way.” The court overruled each one of these objections, and allowed the deposition to be read ; and the defendant excepted. In the caption of this deposition the commissioner states, “ and said witness having been by me first cautioned and sworn to testify the truth, the whole ti'uth, and nothing but the truth, in answer to interrogatories propounded by counsel”; but his final certificate contains no similar statement.' The admission of the deposition is now assigned as error.</p>

<p>Appeal-from the Circuit Court of Dallas.</p> <p>Tried before the Hon. ANDRew B. MooRe.</p> <p>This action was brought by Kelly & Levin, in March, 1854, and was founded on the defendant’s promissory note for $100, “ dated at Bath, Eeb. 21, 1852, and payable six months after date, at either bank in Boston, to the order of Kelly, Levin & Co.” The defendant pleaded the general issue, payment, accord and satisfaction, and a special agreement under seal which is hereinafter described. On the trial, as appears from the bill of exceptions, after the plaintiffs had read in evidence the note declared on, the defendant offered in evidence, after proving its execution, an instrument in writing in these words :—</p> <p>“ To all persons to whom these presents shall come, the undersigned send greeting. Whereas James W. Keep, of Bath, is indebted to us severally, in divers sums of money, which he is at present unable to pay, know ye, that each of us severally, at his request, do, by these presents, give and grant to said Keep full and free liberty, license and right to attend to and transact any business affairs, at all places, without let, suit, or any impediment on our part, to him or his property of any kind, for and during the term of two years from this date ; and we severally covenant, to and with said Keep, that we severally shall and will not, during the time aforesaid, sue, arrest, attach, or prevent said Keep, on account of our respective debts ; and [if] trouble, damage, or hinderance shall happen to said Keep, or to his estate or property, by any one of us, or by any one else by our means or procurement, on account of said debts, contrary to the true intent and meaning of these presents, then said Keep, by virtue hereof, shall be forever discharged and acquitted from all manner of claims, debts, dues, or demands, which such of us may have or claim against him as shall, by themselves or by any one else by their means, sue, arrest, attach, hinder, or meddle with said Keep, or with his property, chattels, or estate, during said term of time. In witness whereof, we have hereunto set our hands and seals, this 12th day of June, 1852.’-' (Signed by the plaintiffs, with several others, but not by the defendant.)</p> <p>“ The court then charged the jury, that under the evidence they must find for the plaintiffs”; to which charge the defendant excepted, and which he now assigns as error.</p> <p>1. The covenant was supported by a sufficient consideration, and was valid and binding. — Smith on Contracts, 101, (180); Morton v. Barnes, 7 Ad. & El. 19 ; Forth v. Staunton, 1 Saunders, 210 ; Smith v. Algar, 1 B. & Ad. 603 ; Willatts v. Kennedy, 8 Bing. 5 ; McLane v. Miller, 10 Ala. 857 ; 2 Michigan, 408 ; 1 Johns. Cases, 22 ; Ferguson v. Hill, 3 Stew. 485 ; Bank v. Darring-ton, 9 Ala. 953.</p> <p>2. The instrument itself, being under seal, imported a consideration, unless impeached. — Code, § 2230 ; Smith on Contracts, 69-73 ; Alsobrook v. Sutherland, 2 S. & P. 270. 3. Under the facts proved, the question of the sufficiency of the consideration should have been submitted to the jury.</p> <p>1. The bill of exceptions does not set out all the evidence, and therefore the charge cannot be held erroneous. — G-aines v. Harvin, 19 Ala, 491 ; Patton v. Hay ter & Johnson, 15 Ala. 18.</p> <p>2. The covenant set up in defense of the suit is without consideration, so far- as the defendant is concerned, and operative only between the creditors. ■</p> <p>3. The covenant cannot be pleaded in bar. The remedy, if any, is by an action on the instrument itself. — Winans v. Houston, 6 Wendell, 471; 1 Lord Raymond, 419, 691; Cro. Eliz. 352; 6 Bing, 547 ; 2 Salk. 573 ; 3 Lev. 41 ; 2 Bulstr. 95, 290 ; 1 Rolle’s Abr. 939.</p>

<p>[appeal from judgment on award op arbitrators.]</p> <p>1. When judgmentmayberenda-edon award. — The parties to a pending-suit may agree in writing to submit the matters in controversy between them to arbitration, and to have the award entered as the judgment of the court; and if the award is returned into court by the arbitrators, deciding the matter in controversy in favor of one, and against the other party, and showing on its face that the arbitrators wore duly sworn, judgment may be thereon rendered by the court in accordance with its terms.</p> <p>2. Notice of award.- — If the agreement, in such case, does not stipulate that notice of the award shall be given to the parties, notice, it seems, is not necessary; but, whether notice is necessary or not, the judgment will not be reversed, on error, because the record does not affirmatively show that actual notice was given.</p> <p>3. Objections io award. — To such an award no objection can be made in the appellate court, which was not made in the primary court.</p>

<p>Appeal from the Chancery Court of Barbour.</p> <p>Heard before tbe Hon. Wade Keyes.</p> <p>This bill was filed by the appellees, children and distribu-tees of Jethro Denson, deceased, seeking an account and distribution of certain slaves, and other personal property, which said Jethro had bequeathed to his surviving wife, “ to have and hold during her natural life, and at her death to dispose of at her will and pleasure”; and which the defendants claimed as the separate property of Mrs. Mitchell, as the only child and heir-at-law of said testator’s widow, who had died intestate. At the January term, 1855, on the complainants’ appeal to this court, it was held, that the testator’s widow took but a life estate in this property, with power to dispose of the remainder ; .and she having died intestate, that the property went to tho testator’s personal representative, to be by him administered as in cases of intestacy. — See 26 Ala. 360. The cause having been remanded, the defendants filed an amended answer, alleging that Mrs. Denson, the tenant for life, was advised that, under the provisions of said will, the property vested in her absolutely in fee-simple, and upon her death would descend to her legal heirs ; that this advice was given to her by an attorney, whom she consulted to ascertain whether it was necessary for her to make a will in order to dispose of the property ; that, relying on this advice, she made no disposition of the property, but left it to descend to her only child, Mrs. Mitchell; that she would have exercised the power of appointment given to her by the will, and would have given the property to Mrs. Mitchell, if she had not considered that it would descend to her by law ; that she asserted, during her life, that she intended the property for Mrs. Mitchell; that the property was mostly acquired by the testator through his said wife, the tenant for life ; and that the will was written under the instructions of the testator, who believed and stated that its effect was to give his wife the absolute title to the property.</p> <p>The cause having been submitted on bill and answer, the chancellor rendered a decree in favor of the complainants ; and his decree is now assigned as error.</p> <p>cited Irwin v. Earrer, 19 Yesey, 86; Carter v. Carter, Mosely, 365; 1 .Story’s Equity, § 1*72.</p>

Tried before the Hon. Nat. Cooe. The appellee recovered a judgment, in the circuit court of Hem’y, against Lemuel Searcy, and summoned the appellant, by process of garnishment, as the' debtor of said Searcy.

Tried before tbe Hon. Robert Dougherty. This action was brought by Jasper Bright against James A. Pike, and was commenced in a justice’s court; but tbo record nowhere shows any statement of the cause of action, except so far as it may be ascertained from the bill of exceptions, which is as follows : “ On the trial of this cause, which was tried by the presiding judge, (the amount claimed not requiring a jury,) the plaintiff introduced the following account:— ‘ James A. Pike…

Heard before the Hon. W. W. Mason. This bill was filéd by the plaintiff in error, as the administrator of Jack E. Eoss, deceased, against Columbus W. Lee and Silas M. Ivey ; seeking to hold Lee accountable, as trustee and attorney-at-law, for certain claims alleged to have been placed in his hands by said Ivey, to collect and pay over the proceeds to said Eoss, in payment of a debt owing to him by Ivey & Goodwin, of which firm said Ivey was a partner.

<p>Appeal from the Circuit Court of Mobile.</p> <p>Tried before the Hon. ANDREW B. Moore.</p> <p>This action was brought by Archibald W. Gordon against William D. Gager, to recover a city lot in Mobile; and was commenced in November, 1850. The defendant appeared, entered into the usual consent rule, pleaded not guiity, and suggested three years adverse possession and valuable improvements. At the May term, 1851, on the application of the defendant, a change of venue was granted to Washington county, and it was ordered that the papers be transferred to the circuit court of that county. At the October term, 1851, of the circuit court of Washington, it was ordered that the cause “be transferred back to Mobile county”; and at the November term, 1851, of the circuit court of Mobile, it was “ordered by the court, by consent of both parties, that the order for a change of venue, made in this case at the last term of this court, be rescinded, and the cause continued.” After this the cause was regularly continued, from term to term, by both parties, until April, 1855; when the defendant moved the court to strike it from the docket, on account of the change of venue to Washington, and the court overruled his motion.</p> <p>On the trial, as appears from the bill of exceptions, “the plaintiff offered in evidence, to sustain his title, a deed made by John and Celeste Graves to Damner & Williams, to the introduction of which the defendant objected; and the court overruled the objection, and permitted it to be read to the jury, against the objection of the defendant.”</p> <p>The jury returned a yerdiet in these words: “We, the jury, find the defendant guilty of the trespass as the plaintiff has cotnplained against him ; and we assess the value of the improvements on the premises at $3,000, and the value of the rents at $2,854 20, — balance in favor of defendant $145;80.” The judgment entry, after reciting the verdict, states, “and thereupon the plaintiff paid into court said sum of $145,80, the damages assessed in favor of the defendant.” The defendant moved in arrest of judgment, because the jury did nót by their verdict assess the value of the land;'but the court overruled the motion, and rendered judgment for the plaintiff; and the defendant excepted..</p> <p>The errors now assigned are: 1st, the overruling of the motion to strike the cause from the docket; 2d, the admission of the deed in evidence; 3d, the overruling of the motion in arrest of judgment; 4th, that there was no legal writ, summons, or declaration; and, 5th, that the court had no jurisdiction to render judgment in the cause.</p> <p>1. The court should have sustained the motion to strike, the case from the docket. The statutory power to change the venue is restricted to a single change. The power thus conferred on the circuit judges is a special power, having no reference to their general jurisdiction. The circuit court of Washington had no original jurisdiction of the cause, the subject-matter being local; and its order, transferring the cause again to Mobile, was an absolute nullity on its face. In such case, consent of parties cannot confer jurisdiction. The change of venue to Washington county ousted the jurisdiction of the circuit court of Mobile, and there was henceforth no such cause in that court. — 2 Yerger, 443; 4 Yerger, 579; 2 Gilman, 578; 1 Swan, 194.</p> <p>2. The deed of Graves and wife, which purported to have been made by them as administrator and administratrix of Simon Eavre, should have been excluded from the jury.— 21 Ala. 277; 4 Ala. 679; 10 Ala. 811; 6 Conn. 258, 387; 1 Sm.' & Mar. Ch. 495; 4 Sandf. S. C. R. 374.</p> <p>3. The verdict of the jury is a nullity, and no judgment ■ could properly be rendered on it. — 4 Howard, 131; 2 Wheaton, 221; 7 Halsted, 352; Code, § 2202.</p> <p>1. The circuit court of Mobile had original jurisdiction of the cause. If there was-any irregularity in the change of venue, it was waived by the consent and acquiescence of the parties.'</p> <p>2. The record docs not affirmatively show error in the admission of the deed from Graves and his wife.</p> <p>8. The failure of the jury to assess the value of the land is, at most, error without injury. The value of the land is only necessary to be known, in case the plaintiff refuses to pay the assessed value of the improvements. But the record shows that the plaintiff, before the rendition of the judgment in his favor, elected to pay the assessed value of the improvements; and therefore the defendant’s right to pay the value of the land never could arise. • ■</p>

<p>[ACTIOS OS NOTE GIVES l?OR PURCHASE MONEY OP SLAVE AT PUBLIC SALE 1)Y ADMINISTRATOR' — COMPETENCY OP WITNESS — MISREPRESENTATIONS BY AUCTIONEER.]</p> <p>1. Competency of surety as witness for principal. — In an action against the principal, on a promissory note executed by him, in this State, jointly witbseveral sureties, a surety who is not sued is a competent witness for him.</p> <p>2. Fraud, when good defense to note. — The maker of a promissory note, given for the purchase money of a slave, at a public sale made by an administrator under an order of court, may sot up fraud in the sale as a defense to the note.</p> <p>3. Fraud of agent affects principal. — The fraud of the auctioneer by whom the sale wa^-made, although he was not authorized by the administrator to make the fraudulent representation, is a good defense to a suit on the note for the purchase money.</p> <p>• 4. When misrepresentations amount to fraud. — -Representations of soundness, recklessly made by the auctioneer for the purpose of inducing the purchaser to buy, may amount to fraud, although the auctioneer did not know at the time that they were false; and if the purchaser buys on the faith of such representations, the fact that the administrator gave public notice, before the commencement of the sale, “ that no warranty of soundness would be made, and that every purchaser must judge for himself,” does not avoid the defense of fraud.</p>

<p>[AMENDMENT OP JUDGMENT KÜNO PEO TUXC.]</p> <p>1. Code construed by previous judicial decisions.- — .Where a pre-existing statute has been incorporated in the Code, it must be received with the judicial construction which had previously been placed on it.</p> <p>2. When amendment nunc pro tunc may be made. — Under the statute (Code, § 2401) authorizing the amendment of clerical errors “at any time within three years after the rendition of final judgment,” a judgment may be amended, nunc pro tunc, after the lapse of twelve years, when the record shows sufficient evidence.</p> <p>3. Binding effect of precedents. — The decision in this .case-was rested partly on the authority of previous adjudications ; the court saying, “We should be strongly inclined to dissent from this proposition, if the question was not embarrassed by previous decisions.”</p>

<p>Appeal from the Chancery Court of Sumter.</p> <p>Heard before the Hon. Wade Keyes.</p> <p>This bill was filed by Jacob Lockhart and Lucretia, his wife, against the administratrix and certain creditors of George Cameron, deceased, who was the father of Mrs. Lock-hart; asking the reformation of a deed of gift of certain slaves, an account of their hire, an injunction to prevent their sale, the specific delivery of the slaves to complainants, and general relief. The deed of gift was executed in South Carolina, in 1824, by Simeon Clay, who was the maternal grandfather of Mrs. Lockhart; and conveyed a negro girl, named Louisa, who is the mother of the other slaves in controversy, to his daughter Nancy 0. Clay, who was then unmarried, but who married said Cameron in 1828, and became by him the mother of Mrs. Lockhart. The bill alleges, that this deed was drawn either by the donor himself, or by one Thomas, both of whom, were unskilled in drawing conveyances, and ignorant of their legal .effect, and, in consequence of the ignorance and unskillfulness of the draftsman, fails to express the intention and meaning of the donor; that his purpose and intention was, “to convey said slave to his daughter Nancy, for the sole and separate use and behoof of herself and of any children she might have, so that said slave should- not be subject to any rights, debts, or engagements of any husband whom she might marry, and at her death should be the property of her children.” It further alleges, that said Clay, when Cameron asked the hand of hjs daughter in marriage, distinctly informed him that this slave had been settled upon said Nancy, for the exclusive use of herself and any children-she might have, so that her husband would not acquire any interest whatever in said- slave — that -the family of slaves to which Louisa belonged had been entailed on him by his grand-father, and he intended that Louisa and her increase should be entailed on his grand-children in the same way; that Cameron made no objection to this; that the marriage of Cameron and said Nancy was soon afterwards solemnized, and Cameron received said slave into his possession, as the separate property of his wife during her life, and of her children at her death; that they removed to Alabama several years afterwards, and brought said slave with them ; that Cameron always disclaimed any title in himself to said slaves, repeatedly and publicly declaring that they belonged to his wife and children; that after the death of his wife, which happened about five years before the filing of the bill, he" declared, frequently and publicly, that the slaves belonged to his only daughter, said Lucretia. It is further alleged, that said Cameron afterwards married one Sarah Grant, who was a daughter of Samuel Swilley; that in 1853 he executed two deeds of trust on said slaves, conveying them to one Roberts as trustee, to indemnify Samuel and John Swilley against their accommodation endorsement and acceptance of two bills of exchange; that said -Swilleys, at the time these deeds were executed, had actual notice of complainants’ title to said slaves, or were apprised of -facts which arc sufficient to charge, them with implied notice; that -Cameron afterwards died in possession of said .slaves, and his administratrix had them appraised as a part of his property; that said slaves will be sold;- unless the court interpose, under said deeds of trust, and as the property of Cameron’s estate.</p> <p>Answers on oath were waived, and all the defendants filed answers, denying the equity of the bill, and insisting that the slaves belonged to Cameron. The Swilleys further allege, that before they became bound as accommodation endorser and acceptor for Cameron, hearing that Mrs. Lockhart claimed some interest in said slaves under the deed of gift to her mother, they obtained a copy of it, and asked the opinion of an attorney-at-law as to its construction, and were advised by him that it vested the absolute property in said Cameron.</p> <p>The evidence, so far as it is material, is noticed in the opinion of the court.</p> <p>On final hearing, the chancellor dismissed the bill, on account of the insufficiency of the proof; and his decree is now assigned as error.</p> <p>The case is presented in two aspects: 1st, in respect to the complainants' rights as against the personal representative of George Cameron; and, 2dly, as regards their rights against the Swilleys.</p> <p>I. In the first aspect of the case, it is well settled that a court of equity will reform a deed of gift, drawn by the grantor himself, which, from his want of skill, or ignorance of law, does not express his intention. — Larkins v. Biddle, 21 Ala. 252; Trapp v. Moore, 21 Ala. 693; Godwin v. Young, 22 Ala. "553; Betts v. Betts, 18 Ala. 787; Stone v. Hale, 17 Ala. 557. It is also well settled, that if a husband receive property from his wife’s father, with a distinct understanding, even by parol, that it is for her separate use, a trust fastens upon it, which a court of equity will enforce.- — Betts v. Betts, 18 Ala. 787; Crabb v. Thomas, 25 Ala. 212; Jennings v. Blocker, 25 Ala. 415. Even if the title has vested in-thc husband by operation of law, and he recognizes and treats it as her separate property, a court of equity will sustain the wife’s title, as against the personal representative of the husband. — Williams v. Maull, 20 Ala. 721; Jennings v. Blocker, 25 Ala. 415. The declarations of a person in possession of personal property, in disparagement of his own title, or repudiating title in himself, are competent evidence against him, or against a subsequent purchaser from him.— Barnes v. Mobley, 21 Ala. 282; Jennings v. Blocker, 25 Ala. 415'.</p> <p>Applying these principles to the pleadings and evidence in this case, the decree of the chancellor cannot bo sustained, sp far as the personal representative of George Cameron is concerned.' The testimony of the donor, corroborated by proof of the repeated declarations .of Cameron, and of his wife in his presence, that the deed does not express his intention, and that his intention was to the effect alleged in the bill, is undoubtedly sufficient to authorize a reformation ol' the deed; the answers not being under oath, nor sustained by any sufficient evidence. It is alleged and, proved, also, that Cameron, while negotiating for the marriage, was distinctly informed by the grantor, that the slave had been settled upon his intended wife and her children: and as he made no objection, but consummated the marriage shortly afterwards, took possession of the slave, and always treated her and her increase as the property of his wife and child, it must be presumed that he consented to hold the property as the separate estate of his wife, and subject to the trust created by her father. Even if no trust had attached to the property, Cameron’s continued recognition and treatment of the slave, from the time of the marriage until his wife’s death, as the property of his wife and child, vested a title which a court of equity will enforce against his personal representative. Whatever, therefore, may be the rights, of the complainants as against the Swilleys, they are certainly entitled to the slaves which shall be left after the debts are paid for which the Swilleys are bound, and to compensation from Cameron’s estate for the value of those sold for that purpose. It was error, therefore, to dismiss the bill without ’ qualification.' Larkins v. Biddle, 21 Ala. 257.</p> <p>II. The Swilleys stand in no better condition than Cameron occupied. His repeated declarations, that the property was not his, but belonged to his wife and child, are evidence against them, and would charge them with notice, even if they were absolute purchasers. — Jennings v. Blocker, and Barnes v. Mobley, supra. Complainants'claim a lien on the property through Cameron, not an absolute title from him. Their equity could be enforced against the Swilleys, if they had a lien by execution; and there can be no difference, in principle, between a lien by execution, and a lien by deed of trust. — Stone-v. Hale, 17 Ala. 557; Betts v. Betts, 18 Ala. 787; It is the priority of equity that must prevail. .</p> <p>Independently of these considerations,: the evidence shows a state of facts which charges- them with notice of the complainants’ equity. Whatever is sufficient to put a party upon inquiry, is sufficient to charge him with notice. — Herbert v. Hanrick, 16 Ala. 581; Chapman v. Gl-assell, 13 Ala. 55: 3 Stew. 233. The answer, though contradictory and disingenuous on the subject of notice, admits that they had heard of the complainants’ claim, and sent to South Carolina for a copy of the deed. The words used in the deed, “for the only proper use and behoof of said Nancy,” are unusual in a deed of personal property, and, when used in a gift to a married woman, create a separate estate. — Griffith v. Griffith, 5 B. Monroe, 115;'Snydcr v. Snyder, 10 Barr, 423. These words alone were sufficient to put them upon inquiry; yet the only inquiry made was of counsel who had money to lend to Cameron if they would become his sureties, and who did lend it in consequence of the opinion given to them. — Dart on Yen-dors and Purchasers, pp. 402-27; 1 Story’s Equity, § 399, note 4; 2 Dev. & Bat. Eq. 130, 360; Hardin, 37; 1 Sm. & Mar. Ch. 45.</p> <p>III. The allegations and proof substantially correspond, and that is sufficient. — Eldridge v. Turner, 11 Ala. 1050: David v. David, 27 Ala. 222. The intention “to bind the property to Nancy and her children,” was an intention to give them a joint interest during her life; and the intention expressed by these words, with the further qualification “that the property should not be subject to any man’s debts,” was to give her a separate estate, so far as her interest was concerned. Fellows, Wadsworth & Co. v. Tann, 9 Ala. 999; Goukl v. Hill, 18 Ala. 84; Cuthbert v. Wolfe, 19 Ala. 373; Eurlow v. Merrill, 22 Ala. 705; Newman'v. James, 12 Ala. 29.- But. since Nancy, who was only to have a life estate, is now dead, and her only child is seeking to secure her rights in remainder by a reformation of the deed, the allegations in reference to the separate estate of Nancy are immaterial, and the failure to prove them cannot affect the substantial case made by the bill. It is wholly immaterial whether those allegations are proved or not; the rights of all the parties being precisely the same in either event, and the defendants not being taken by surprise. — Lanier v. Hill, 25 Ala. 554; Montgomery v. Givhan, 24 Ala. 568.</p> <p>1. Under the allegations of the bill, it was the intention of the donor that the children of his daughter Nancy, as they were born, should take a joint estate with her in the property during her life, with remainder to them at her death, (9 Ala. 999;) while the testimony of the grantor shows, that he either intended to give the slave to his daughter, for her separate use, during her life, with remainder to her children, or intended to create an estate tail; and, in either event, the variance between the allegations and proof is fatal. — Crabb v. Thomas, 25 Ala. 216; McKinley v. Irvine, 13 Ala. 695.</p> <p>2. The testimony of the grantor is confused, inconsistent, contradictory, and altogether insufficient to authorize a reformation of the deed. — Wall v. Arrington, 13 Geo. 88; Greer v. Caldwell, 14 ih. 207; Dennis v. Dennis, 4 Rich. 307.</p> <p>3. A deed will not be reformed, as against hona-fi.de purchasers for valuable consideration without notice; and the Swilleys occupy that position. — -13 Geo. 88; 5 Mason, 270; Lomax’s Digest, vol. 2, 380, § 6; Leading Cases in Equity, vol. 2, pt. 1, p. 33, and notes; 9 Yosey, 30; 7, Wheaton, 46; 5 Monroe, 194; 2 Story’s Equity, § 959; 9 Barr, 404; 2 Grat. 499; Powell on Mortgages, 654; 2 Swan, 548.</p> <p>4. Cameron’s admissions, during coverture, that the slaves belonged to his wife, were made in ignorance of his rights, and were disavowed when he saw a copy of the deed, as he might lawfully do. That such admission did not create a separate estate in his wife, see Gamble v. Gamble, 11 Ala. 976; Machem v. Machom, 15 Ala. 376;Puryear v. Puryear, 12 Ala. 16; ib. 299.</p> <p>.5, If the complainants rely on a gift to Mrs. Lockhart, their remedy is at law. — Jennings v. Blocker, 25 Ala. 415.</p>

<p>Appeal from the Circuit Court of Mobile.</p> <p>Tried before the Hon. 0. W. Rapiee.</p> <p>This action was brought against -the appellants, as the owners of the steamboat ‘S. S. Prentiss,’ to recover the penalty of fifty dollars'for their transportation of plaintiff’s slave on board of said boat, without his written permission ; and was commenced before a justice of the peace, but removed by appeal into the circuit court, where the following bill of exceptions was taken to the rulings of the court:—</p> <p>“ On the trial of this cause, the defendants admitted that they were the owners of the steamboat ‘ S. S. Prentiss,’ which was running on the Alabama river between Mobile and Wetumpka, as a passenger and freight boat; and that they had transported a slave, the property of plaintiff, on said boat, without the verbal or written permission of plaintiff. A witness for plaintiff testified, that the slave, when arrested, bad been run away about sis weeks, and lie was employed by plaintiff to bunt bim up and arrest him ; that be found the slave near said steamboat, on the wharf in Mobile ; that he beard Massey, one of the defendants and owners of said boat, after said slave was arrested, admit that the slave had been on board of said boat for about sixteen days, and had been used as second cook, — that the slave was first discovered above Claiborne, on the upward trip, and was then placed in charge of the steward of the boat, without being confined in any manner. The evidence of this witness further tended to show, that when said boat reached Mobile,-no steps were taken by the master, owners, officers or agents of said boat, to restore the slave to plaintiff, but he was permitted to leave the boat and go about at large ; the witness arrested him on the morning after the boat arrived at Mobile, and was paid the reward offered by plaintiff. The defendants offered evidence, tending to prove that said slave, who was a small boy about twelve or fifteen years of age, got on board of the boat at the wharf in Mobile, without the knowledge or consent of any one in charge of her ; that he was first discovered, soon the next morning, above Claiborne, and was then put in charge of the steward of the boat, with instructions to bring liim back to Mobile on the return trip, and to deliver him up to his owner ; that the boat was unavoidably detained up the river for about sixteen days, being aground ; that the boy was then brought back to Mobile on said boat, and plaintiff got possession of him without expense charged by the defendants; that the boy was of no service to the boat, and was not employed, but was an expense ; that all who were in charge of the boat were instructed to use every diligence to prevent negroes from getting on board of the boat, to be carried, without the consent of their owners ; and that they are, and always have been, thus diligent. The defendants offered evidence, also, tending to show that said boy was in the habit of running away and making trips on other boats, as he had done on the defendants’boat; which evidence, on the plaintiff’s objection, was excluded by the court, and the defendants excepted.”</p> <p>“ The court charged the jury, among other things, that although said slave may have got on board of the boat, and have been taken away on board of her, without the knowledge or consent of those in charge of her ; yet, if those in charge of the boat, after the slave was discovered to be on board, employed him in the service of the boat, and continued to transport him so employed, and neglected to use the necessary care and means to secure him as a runaway, and to have him restored to his owner, the transportation of him under such circumstances, after the discovery of him on board, would render the owners liable for the penalty sued for.”</p> <p>The defendants requested the following charges to the jury;</p> <p>“ 1. That if they believed the defendants used every diligence to prevent plaintiff’s slave from getting on board of their boat, without the knowledge or consent of his owner, then they are not liable for the penalty sued for.</p> <p>“ 2. That if the defendants, or those in charge of the boat, as soon as they discovered the. negro on board, took charge of him, and brought him back on the’return of the boat; and the owner regained the possession of his negro, without expense caused by the defendants, then the defendants are not liable to the penalty sued for.</p> <p>“ 3. That the defendants were not bound to have put the negro in jail, at the nearest jail they came to after he was discovered on board of the boat; but, if they took such care’ of him, and brought him back to Mobile, so that the owner got possession of him, without expense caused by the defendants, they are not liable for the penalty sued for.”</p> <p>The. court refused these charges, and the defendants excepted to each refusal, as well as to the charge given; and they now assign these matters as error.</p>

<p>Appeal from the Chancery Court of Marengo.'</p> <p>Heard before the Hon. Wade Keyes.</p> <p>This bill was filed by the appellant, Hopkins G-. Charles,, in November, 1852, to compel a settlement and account of a deed of trust, which was executed by one Isaiah Dubose on the 14th October, 1842, to James H. Dubose as trustee, to protect and secure certain creditors and sureties. Complainant and said James H. Dubose were bound, with others, as sureties for said- Isaiah Dubose, on a large debt to Clement D. Wallace, of South Carolina, which was there reduced to judgment, against all the parties except James H. Dubose, before the execution of the deed ; and this was the principal debt secured by the deed. The bill alleged, that the trustee took upon himself the execution of the trust, and possessed himself of all the property conveyed by the deed, which he still retains ; that complainant was compelled, in 1850, to pay about §6,000 in satisfaction of the balance due on said judgment; that be afterwards applied to the trustee for indemnity or reimbursement out of the trust property in his hands, and that the trustee refused to refund any part of the money. The bill also contains the following allegation :— “Your orator further showeth, that he is informed and believes, that said James H. Dubose pretends that ho has heretofore sold said property, as trustee as aforesaid, under and by virtue of the deed, and purchased the same upon his own individual account; but your orator insists, that if such is the case, (which, however, he denies,) said James H. Dubose bought the same at a grossly inadequate price, and that it would be contrary to equity and good conscience to maintain the validity of such sale.” The prayer of the bill is for an account of the trust, a sale of the property, and for general relief.</p> <p>The trustee answered the bill ; admitting the execution of the deed, and his acceptance of the trust • alleging that he sold the property conveyed pursuant to the terms of the deed, and became himself the purchaser at a full and fair price, and that he paid out the proceeds of sale as directed by the terms of the deed. The answer contains other allegations, and sets up several distinct defenses, which are immaterial as the case is here presented.</p> <p>The chancellor, on final hearing, dismissed the bill; holding,, that the allegations of the bill did not authorize a decree setting aside the trustee's sale ; and his decree is now assigned as error.</p> <p>1. The complainant bases his right to the relief sought upon the express trust created by the deed, and not upon the sale made by the trustee. The sale is no part of his case ;• and, if of any importance, it appertains to the defense, and should have been set up and relied on in the answer. When set up in the answer, no allegation or prayer touching it is necessary in the bill, because it presents, prima facie, no lawful bar to the relief sought. The sale will be set aside, at the mere option of the cestui que trust, without th.e averment of a single fact or circumstance against it. It creates no bar, because it may be thus set aside. The trustee cannot, by purchasing the trust property at Ms own sale, create an interest in himself in opposition to the trust. When he buys, he is considered as having bought for the benefit of the beneficiaries, and in his character of trustee, and is liable to account as trustee. He acquires no title to the slaves bought at his own sale : they must still be regarded as subject to the trusts of the deed, and he must account for them accordingly. — Andrews v. Hobson, 23 Ala. 239 ; Montgomery v. G-ivhan, 24 Ala. 569 ; Cunningham v. Rogers, 14 Ala. 149 •; Harrison v. Mock, 10 Ala. 194 ; 1 Dan. Ch. Pr. 428-9. Nor does the trustee say, in his answer, that he bought the property for himself, and paid the purchase money ; but, on the contrary, that he expressed a willingness to hold it subject to the trust, or to permit the complainant to take the property at his bid.</p> <p>2. What shall be deemed a reasonable time, within which the cestui que trust must apply to set aside a sale and purchase by the trustee, is not susceptible of any definite rule, but must depend upon the circumstances of the case, and the sound discretion of the court. Eleven years have been deemed a reasonable time. — Butler v. Haskell, 4 Dess. 702.</p> <p>3. Under the general prayer, any relief may be granted which is not inconsistent with the case made by the bill.</p> <p>1. W. GaeROTt, with whom were LyON & PRINCE, contra, contended, 1st, that the trustee had such' an interest in the property conveyed by the deed, as authorized him to become the purchaser at his own sale ; and that his purchase vested the title in him. — Creagh-& Eorwood v. Savage, 9 Ala. 963 ; Johnson v. Johnson, 5 Ala. 92 ; Scott v. Freeland, 7 Sm. & Mar. 419.</p> <p>2. That the allegations of the bill' did not authorize a decree setting aside the sale. — Story’s Equity Pleadings, §§ 241, 255, 257 ; Maury v. Mason, 8 Porter, 211.</p> <p>3. That relief was barred by the statute of limitations and by lapse of time. — 21 Ala. 682; 4 Cowen, 717 ; 8 Porter, 211 ; 2 Story’s Equity, § 1520.</p>

<p>[SUMMARY JUDGMENT, OS NOTICE AND MOTION, AGAINST DELINQUENT STOCKHOLDER.]</p> <p>1. Record muslshoio jurisdiction. — To sustain a summary judgment, on notice and motion, the record must affirmatively show every material fact to give the court jurisdiction; and the notice, though copied into the transcript, cannot be looked to, unless it is made part of the record by proper reference.</p> <p>2. Judgment by default final. — Unpaid calls for railroad stock are not “ instruments of writing ascertaining the plaintiff’s demand”, within the moaning of the statute (Code, § 236.6) authorizing the rendition of a final judgment by default without the intervention of a jury.</p>

<p>Appeal from the Circuit Court of Cherokee.</p> <p>Tried before the Hon. JOHN E. MooRE.</p> <p>This action was brought by William L. Cain against John Penix; and the bill of exceptions shows the following facts: “ The plaintiff gave in evidence, on the trial, a deed from one Hooper to himself for the land in controversy, and also proved the existence and loss of a deed from the sheriff of Cherokee county to said Hooper for said land, and that said land had been levied on and sold as the property of one Crawford, under an order of sale from the circuit court of said county; which order of sale, and the decree of the court under which it was issued, were also produced in evidence. On the part of the defendant, it was proved, that Hooper, previous to the execution of said deed to plaintiff, had executed a deed to said Crawford, under the following facts: Hooper swore, that he made the deed to Crawford upon the proposition of one Lay, as tire agent of Crawford, to purchase said land; and that he gave the deed to Lay, to be delivered to Crawford if he paid the consideration money. Lay swore, that lie received the deed from Hooper; that it was agreed between Hooper and himself, that he would either return the deed, or would pay him the money; that Hooper subsequently informed him, (he having in the meautime delivered the deed to Crawford,) that Crawford had run away without paying the money; that Lay then said, ‘You have got me for the money,7 and offered to pay it, -and that Hooper said he would not receive it from him. It was in proof, also, that Hooper had notified Penix that he had executed a deed to Cain for the said land upon valuable consideration; but Penix purchased from Hooper’s son a justice’s judgment against Crawford, (which, with an order of sale subsequént to that under which plaintiff claimed, was in évidence.) and had the land levied on and sold, and became the purchaser.”</p> <p>“On these facts,” the court refused several charges which were asked by the plaintiff, and instructed the jury as follows:</p> <p>“ That if they believed the testimony of Hooper, they should find for the plaintiff; but, if they believed the statements of Lay, they must find for the defendant,inasmuch as Crawford became invested with the title to the land the moment Lay delivered the deed to him, and the land was then subject to be sold as Crawford’s.” The plaintiff excepted to this charge, and he now assigns it as error.</p>

<p>[EJECTMENT BY CLAIMANT UNDER DEED OP CREEK-IXDIAX RESERVED.]</p> <p>1. President's approval of contract;, how proved. — The president’s approval of a ■contract for the sale of an Indian reservation, cannot be proved by the mere certificate of the secretary of war, not under the seal of his department, endorsed on the contract.</p>

Heard before the Hon. J. W. Lesesne. The bill in this case was filed by the appellant, seeking the settlement of the partnership accounts between himself and the defendant. The partnership was formed in the fall of 1842, and was dissolved in April, 1845. Its business was the manufacture and sale of tobacco, snuff, cigars, &c.; Zimmerman superintending the manufacture in Philadelphia, and Huber making the sales in Mobile.

Tried before tbe Hon. Robert Dougherty. This action was founded on the appellant’s official bond as sheriff of Perry county ; the breach assigned being, that said Raiford, as sheriff, sold under execution certain personal property belonging to Alfred Berry, (who was the defendant in execution, and for whose use this suit was brought,) without having it present at the time and place of sale, and thereby caused it to sell for an inadequate price.

Tried before tbe Hon. Robeet Dougherty. The facts of this case may be thus stated: Charles P. Shelley, tbe appellant, suing for the use of R. M. Minatt, recovered a judgment against George W. Graves, before a justice of tbe peace, on tbe 23d March, 1838 ; on which an execution was issued on the 10th April, 1838, and returned ‘no property found.’ On the 23d March, 1854, a s'cire facias was issued on this judgment, and on the 22d April it was revived.

Heard before the Hon. James B. Clark. This bill was filed by James Brantley against Larkin R. Gunn, and the merits of the case were decided in favor of the complainant at the June term of this court, 1852, as shown by the report in 21 Ala. 633, to which reference is made for the material facts.

<p>Appeal from the Chancery Court of Monroe.</p> <p>Heard before the Hon. Wade Keyes.</p> <p>This-bill was filed by the heirs-at-law of William J. Gres-sett, deceased, against Flavel Foster ; asking the rescission of a contract for the purchase of a tract of land, on account of the vendor’s fraudulent misrepresentations, the cancellation of the deed and notes given for the purchase money, an injunction of a judgment at law on one of the notes, and general relief. The alleged misrepresentations were, that Foster, in pointing out to Gressett the boundary lines of the land, falsely pretended that they included a fertile tract, containing about fifty acres, which was one of the principal inducements to the purchase, and which was not in fact so included; and that he assured Gressett, that a field of from seventy-five to one hundred acres, of rich bottom land, could be obtained within the limits of the tract. The contract was made in August, 1842; and the bill was filed in June, 1816. Gressett died about eight months after the purchase was made, without having discovered (so the bill alleged) the fraud which had been practiced on him, and which was only discovered by the complainants within the year preceding the filing of their bill. One of the notes given for the purchase money was paid before the discovery of the fraud, and the other was transferred to one William Foster, who obtained judgment on it against Gressett’s administrators. Flavel Foster removed from the State before the filing of the bill, and had no property within the State.</p> <p>The defendant answered the bill; admitting the execution of the alleged contract, but denying- all fraud on his part; alleging that his representations as to the location of the boundary lines, and as to the number of acres in the bottom lands, were mere matters of opinion, about which the purchaser had equal means of forming a correct judgment; and insisting on the laches in the filing of the bill as a bar to the relief sought.</p> <p>The testimony adduced by the complainants established the alleged misrepresentations of the defendant as to the location ,©f the boundary lines, and the further fact that he knew their r-eal location. On the part of the defendant, one Asa Parker testified to a conversation between himself and said Gressett, shortly after the purchase was made, in which he informed Gressett, in answer to a question from him, that there was very little swamp land in the tract, and Gressett replied “ that he supposed there was between seventy-five and one hundred acres, but it was cheap enough any how.”</p> <p>The chancellor rendered a decree in favor of the complainants ; declaring a lien on the land for the repayment of the purchase money, and ordering it to be sold by the register if the money was not repaid by a specified day ; perpetually enjoining the judgment; and referring the matters of account to the register. The decree of the chancellor, together with his action on exceptions to the master’s report, is now assigned as error.</p>

<p>Appeal from the Chancery Court of Tallapoosa.</p> <p>Hoard before the Hon. James B. CLARK.</p> <p>This bill was filed by Joel Stow, the appellant, against the executors of Nathan Bozeman, deceased ; the material allegations being as follows : That complainant, in 1837, purchased a tract of land from said Bozeman, at the price of $4,500, and executed to him four notes for the purchase money, payable on the first of March respectively in the years 1838, 1839,1840, and 1841 ; that the land consisted of two contiguous half-sections, through which the Tallapoosa river ran, and which were represented by Bozeman to contain together 640 acres, when in fact they were fractional sub-divisions, and did not contain more than 540 acres ; that Bozeman, on pointing out the boundaries of the land, represented a fertile tract, one hundred yards in width and extending the whole length of the two half-sections, as included within the boundaries, when in fact it was not so included ; that complainant, on discovering the deficiency in the quantity of the land, insisted on an abatement of the purchase money, and Bozeman promised that the matter should be satisfactorily adjusted on the final settlement between them; that partial payments were, from time to time, made on the notes, but no receipts were taken for these payments ; that in 1843 complainant took up the original notes given for the purchase money, and executed three new notes for the amount ascertained to be due by Bozeman’s calculation, but in this computation several errors intervened to the injury of complainant; that Bozeman afterwards died, and his executors have instituted suit on these new notes. The bill prays an injunction of the action at law, an abatement of the purchase money, a settlement of the accounts, and general relief.</p> <p>The defendants answered the bill, denying its material allegations ; but, as no point is here made on the answer, it is unnecessary to notice its allegations.</p> <p>On final hearing, on bill, answer, and proof, the chancellor held, that the.complainant was entitled to an abatement of the purchase money on account of the deficiency in the quantity of land ; that in computing the injury which he had thereby sustained, it was proper to take into consideration the value of the adjacent lands on the east and west boundaries of the tract, after deducting from the price agreed to be paid the full value of the river and ferry privileges ; that Bozeman’s misrepresentation of one of the boundary lines was but the expression of an opinion in which he was honestly mistaken, and did not constitute a fraud on the purchaser; and that the complainant could obtain full redress at law, in défense of an action on the notes, for all partial payments. He therefore rendered a decree in accordance with these views, and ordered a reference to the register ; and directed him, after ascertaining the amount which was to be deducted from the purchase money, to divide that sum into four parts, and to calculate interest on each part, from the time the original notes respectively fell due, to the time when the new notes were given.</p> <p>From this decree the complainant appeals, and here assigns the following errors : 1. The chancellor erred in not allowing the complainant the average value of the land, and in deciding that the adjacent lands should be- estimated in ascertaining the damages. 2. The chancellor erred in not allowing compensation for the misrepresentation made by Bozeman as to one of the' boundary lines. 3. The chancellor erred in not allowing the credits on the notes to which complainant was entitled. 4. The chancellor erred in not directing the register to take and state an account of all the matters in controversy.</p> <p>1. The proper mode of ascertaining the compensation to which the complainant was entitled, was, to compute the average value of the tract, without reference to the adjacent lands. — Blessing v. Beatty, 1 Robinson’s Ya. Rep. 28T.</p> <p>2. Bozeman’s misrepresentations as to one of the boundary lines, constituted a fraud on complainant, against which he should have relief. — Munroe v. Pritchett, 16 Ala. 785 ; 7 English, 699 ; 8 Ired. Eq. 304; 14 Ala. 209.</p> <p>3. It is a principle of equity jurisprudence, that when jurisdiction has once attached, the court will grant complete relief, and not mete out justice by halves. — Catheart v. Robinson, 5 Peters, 263 ; Beardsley v. Hall, 1 Root, 363 ; McRaven v. Forbes, 6 How. Miss. 569 ; Miami Ex. Co. v. U. S.' Bank, Wright, 249 ; Oliver v. Pray, 4 Hamm. 175 ; Hawley v. Sheldon, Harr. Oh. 420.</p> <p>contended that the bill should have been dismissed, because the complainant had a plain and adequate remedy at law ; and that this court should render the decree which the chancellor ought to have rendered. •</p>

Heard before the Eton. A. J. Walker. This bill was filed by John Teakle against his son, Wm. P. E. Teakle, and one William Cosper, asking the reformation of a deed from said Gosper to said William Teakle, and an injunction against an action at law instituted by said William Teakle to recover a portion of the land conveyed by the deed. William Teakle died pending the suit, and it was thereupon revived against his heirs-at-law and personal representatives.

<p>[BILL IN EQUITY BY VENDOR EOR REFORMATION OF TITLE-BOND.]</p> <p>1. Purchaser's remedy for defect of title. — The purchaser may elect, on discovering a defect of title, either to take the necessary steps to entitle himself to a rescission of the contract, or to sue at law for a breach of the covenant contained in the bond for title.</p> <p>2. How election may be waived or lost.- — The purchaser’s right of election, in such case, can only he lost by his own act or laches, and cannot be exercised by any court for liim; nor does he deprive himself of it by bringing suit on the title-bond, in which the lands are by mistake incorrectly described, and by defending a suit in equity for the correction Qf the mistake.</p> <p>3. Form of decrees in equity. — The prescribed forms of proceeding in equity are flexible, and may be suited to the different postures of the case: the court may so adjust its decrees, and vary, qualify, restrain or model the remedy, as to meet most (it not all) of the exigencies of the case, and to adjust the' adverse claims, controlling equities, and substantial rights of all the parties.</p> <p>4. Decree for reformation of title-pond. — where the vendor filed a bill, asking a reformation of his title-bond in the description of the land, and an injunction against an action at law on the bond; and the proof showed that the land was misdescribed by mistake, and that the vendor did not have, the title to the land which he intended to sell, — the mistake in the bond was corrected, but the action at law was not enjoined; and it was expressly declared by the. decree, that the purchaser might, at his election, either proceed'with his action at law, or dismiss it and institute proceedings for a rescission of the contract; and further, that if he elected to proceed with his action, it should be considered in all respects an action on the bond as reformed.</p>

<p>Appeal from the Circuit Court of Dallas.</p> <p>Tried before the Hon. ANDRew B. Moose.</p> <p>This action was commenced in March, 1856, and wag founded on the defendant’s endorsement of a promissory note for $250, dated July, 1850,.executed by Lewis Bowdon, payable on or before the first day of January then next to Gayle & Gayle, and endorsed by the payees and the defendant; the former endorsement being in blank, and the latter dated April 23,'1852. The bill of exceptions is in the following-words: “The facts of the case are these: On the 23d April, 1852, Lodor endorsed the note on which the suit is brought to the plaintiff, as shown by the endorsement on the note; and, at the time of making the endorsement, agreed to waive the necessity of Gayle’s bringing suit against the maker to the first court. The maker of the note lived in Shelby county; and it was thought, both by Lodor and Gayle’s agent, that there was not sufficient time to bring suit and get service to the first term of the court, which was the reason of the waiver; but it was expressly stated by Lodor, that he waived the bringing of suit to the first court only, for the reason above given. Suit was not brought against Bowdon on the note until 1854, two years after Lodors endorsement; and execution against Bowdon was returned ‘no property.’ Whereupon, the court charged the jury, that the plaintiff was entitled to recover; to which charge the defendant excepted.” The charge of the court is now assigned as error.</p>

<p>Appeal from the Circuit Court of Tallapoosa.</p> <p>Tried before the Hon. Robert Dougherty.</p> <p>The proceedings in this case were instituted by Benjamin S. Tarver, by a petition for a mandamus against the commissioners’ court of Tallapoosa, to compel the levy of a tax under the authority conferred upon said court by the special act of 1843, (Pamphlet Acts, 134,) to discharge a certain liability which had been previously incurred by the relator and others, who had been appointed commissioners to contract for the erection of certain county buildings. This liability consisted of a judgment which had been rendered against said commissioners, in favor of the contractors, and counsel fees incurred in .defending the suit. The petition alleged, in addition to these facts, that the commissioners paid off all the notes which they had executed to the contractors for the erection of the county buildings, except the one last falling due, which amounted to $3,500, and which was only partially paid by them, while the balance was paid by the relator out of his own private funds ; that these payments were made by said commissioners out of the effects and assets belonging to the county, arising from the sale of town-lots in Dadeville ; that on their refusal to pay the balance due on the last note, on -the ground that the buildings had not been erected in accordance with the terms of the contract, the contractors instituted an action on the note, and recovered judgment against them, and it was the balance due on this judgment which .the relator was compelled to pay out of his individual funds ; that he afterwards presented his claim for reimbursement to the commissioners’ court, substantiated by proper proof, and asked an appropriation for its payment; and that the court refused to make any appropriation for his benefit, and refused'to levy the tax which they were authorized to levy for the purpose.</p> <p>In return to a rule nisi the defendants filed an answer, alleging, among other things, “ that the said several sums of money set out in said application, were paid by said Tarver out of moneys arising from the sale of town-lots in the town of Dadeville by the court-house commissioners of Tallapoosa county, and not out of the individual and private funds of said Tarver.”</p> <p>The court quashed the return as insufficient, and awarded ‘ a peremptory mandamus; and 'its judgment is now assigned as error.</p> <p>contended that the return was sufficiently definite and certain, and cited the following cases: 11 Modern, 114; 1 ib. 84; 10 ib. 101; 12 ib. 2. 3; Salkeld, 434; Fitzh. 195; Shower, 252, 154; 2 Ld. Rajm. 1404; 1 ib. 564; 1 Sid. 210; 6 T. R. 490; 2 Stephens’ N. P. 2326; 2 Wheaton’s Selw. 281; 5 B. & A. 731; Petersdorf’s Abr. vol. 12, 363.</p> <p>insisted that the return was insufficient, because it did not allege that the money arising from the sale of the town-lots belonged to the county, and was the appropriate fund for the payment of the debt; citing, to this point, 10 Wendell,. 25, 32 ; 6 Serg. & Rawle, 469-76 ; 1 ib. 254; 6 Bacon’s Abr. 447-8.</p>

<p>Appeal from the Circuit Court of DeKalb.</p> <p>Tried before the Hon. Thomas A. Walhee.</p> <p>This action was brought by Mrs. Eliza R. Smith against John B. Walden, to recover a slave, named Amanda, who was hired to said Walden for the year 1850 by James Lamar, as executor of Solomon C. Smith, deceased, who was the husband of the plaintiff at the time of his death. The action was commenced in August, 1850, and the trial was had at the April term, 1855. On the trial, as appears from the bill of exceptions, the defendant offered said James Lamar as a witness, after having released him both in his individual and representative capacity. “It was. shown that he, as executor, was the real party in interest in the defense of this suit; that he had employed the counsel who were defending it; that the defendant had only hired the negro from him, as above stated; that his title, as executor, was set up by the defendant, and was in issue; and that a verdict for the defendant would enure to his benefit as executor. The plaintiff then objected to the ‘ competency of the witness, because he was interested in the event of the suit, and because the record of this suit would be evidence for or against him in another suit for the same property.” The court sustained the objection to the competency of the witness, and excluded him; to which the defendant excepted, and which he now assigns as error.</p> <p>cited the following cases: Mockbeev. Gardner, 2 Har. & Gill, 176; Howard v. Burgen, 4 Dana, 187; Ricks v. Dillahunty, 8 Porter, 133; Walton v. Shelley, 1 T. R. 301; Blackett v. Weir, 5 Barn. & Cress. 387; Nelson v. Iverson, 24 Ala. 9; Jackson v. Rum-sev, 3 Johns. 234; 4Serg.&Rawle,222; ILitt. 107; 1 Greenl. Ev. §§ 386-90; Phil. Ev. (C. & H. Notes,) vol. 3, 1501-30; 2 Stark. Ev. 775.</p> <p>cited Tarleton & Pollard v. Johnson, 25 Ala. 300.</p>

<p>Appeal from the Chancery Court of Monroe.</p> <p>Heard before the Hon. Wade Keyes.</p> <p>This bill was filed by Mrs. Martha Gallagher against Augustus L. Witherington, asking the rescission of a contract for the purchase of a tract of land containing one hundred and sixty acres, on account of the vendor’s alleged fraud and defect of title to a portion of the land ; an injunction of a judgment on the notes for the purchase money, and general relief. All the facts of the case will be readily understood from the opinion.</p>

<p>Appeal from the Chancery Court of Dallas.</p> <p>Hoard before the Hon. James B. ClarK.</p> <p>The case made by the record may be -thus stated $ In December, 1831, Simmons Harrison, of the county of Jones -in North Carolina, there executed a deed of gift, conveying certain slaves to one William H. Green, his heirs, executors and administrators, in trust for the sole and separate use, benefit and behoof of Mrs. Mary K# Bush, who wangle daughter of said Harrison and the wife of Nathan B. Broh, during her life ; and after her death, for/the use, benefit and behoof of her children by the said Nathan B. Bush, and their heirs forever. Soon after the execution of this deed, Bush and his wife removed to this State, and brought with then^ the slaves conveyed by the deed# Mrs. Bush died in 183® leaving three children, Holland, Mary and Penelope» ThP slaves remained in the possession of said Nathan B« Bush until his death, which happened in 1844, at which time he had acquired several others by his industry and economy, and by the services of the slaves conveyed by the deed* By his last will and testament, which was duly admitted to probate, and of which one Alexander Sledge was the executor, said Bush bequeathed all the slaves then in his possession, including those conveyed by the deed, with the increase of the females, to his three daughters, but not in equal portions' — the bequest to Penelope being larger than the others. The executor proved the will, took possession of all the property, proceeded to a settlement of the estate, and delivered the slaves to the respective legatees. After the death of said Bush, his daughter Holland married Frederic B. Bryan; Mary married Thomas J. McQueen ; and Penelope, the youngest, married Samuel W. Weems. In August, 1850, Mrs. Weems died, having lflpqueathed all her property to her said husband, who afterwards proved her will, and took possession of all her slaves and other property.</p> <p>In December, 1850, Mr. and Mrs. Bryan, with Mary Bush, who was then unmarried, filed their bill against said Green, Weems, and Sledge ; alleging their ignorance of the deed from Simmons Harrison until a short time previous to the filing of the bill; and asking that the said Sledge, as executor of Bush, might be mijide to account for the hire and services of the slaves durihg the life of his testator, and that the slaves might be divided between Mrs. Bryan and Mrs. McQueen*</p> <p>The defendant Weems answered the bill, demurring for want of equity, and setting up the statute of limitations in defense of the suit. The answer also contains other matter, which is not deemed material.</p> <p>On final hearing, the chancellor held the statute of limitations a bar to the relief sought, and therefore dismissed the bill; and his decree is now assigned as error.</p> <p>1. When the objects of a’trust have been fully performed, the title of the trustee' ceases, and the legal, as well as the equitable title, vests in the beneficial owner, unless it clearly appears to have been the grantor’s intention that the legal title should continue in the trustee after the trust had been fully performed; and whore the trust is created by deed, the courts are more cautious in restraining the trustee’s title, that when it is created by will. Comby and Wife v. McMichael, 19 Ala. 147; Freeman v. Perry, 2 Dev. Eq. R. 243; Falls v. Torrence, 4 Hawks, 412.</p> <p>2. The death of the negroes must be the loss of Weems, who wrongfully withholds them. — Goodman’s Ex’rs v. Pledger’s Adrn’rs, 14 Ala. 120.</p> <p>3. When the trustee has the mere legal title, his acts cannot affect the rights of the beneficiaries. — Smith v. Riddle, 15 Ala. 29.</p> <p>4. In all cases where trustees ought to convey to the beneficial owner, it should be left to the jury to presume, if such presumption can reasonably be made, that they had conveyed accordingly. — 1 Green. Ev. § 46; Doe v. Sybourn, 7 T. R. 2; Doe v. Staple, 2 T. R. 696. And so, in equitafc'here the possession unites with the ultimate equitable title, and so remains for six years, the naked legal title of the trustee will be extinguished in favor of the beneficiaries. — Smith v. Ruddle, 15 Ala. 29; 4 Hawks, 412; Comby v. McMichasl, 19 Ala. 747; Couth way v. Berghaus, 25 Ala. 393; Hillary v. Waller, 12 Yesey, 252; 7 T. R. 49; 8 ib. 118; Langley v. Sneyd, 1 Sim. & Stu. 45-55; Carteret v. Carteret, 2P. Wms. 134; Goodson v. Ellison, 3 Russ. 583; England v. Stade, 4 T. R. 683; Angier y. Stanard, 3 My. <fc K. 571; Wilson v. Allen, 1 J. & W. 611; Cook v. Sottan, 2 Sim. & Stu. 154; Hill on Trustees, 253-68.</p> <p>made several points which are not decided by the. court, and which are for that reason omitted; and further contended-,—</p> <p>1. That the complainants, before filing a bill for partition, should have established their title at law. — Phelps v. Green, 3 Johns. Ch. 302.</p> <p>2. That the legal title of the trustee did not cease at the death of Mrs. Bush, but continued at least during the minority of her children; and that the cases cited to this point by the "appellant's counsel, arose under deeds containing language different from that employed in Harrison's deed, and were therefore inapplicable., ,</p> <p>3. That the trustee was informed that the property was hold adversely to the deed, and was therefore barred by the statute of limitations; and his title being barred, the complainants are also barred. — Williams v. Otey, 8 Humph. 563; Colburn v. Broughton, 9 Ala. 362.</p>

<p>Appeal from the Circuit Court of Dallas.</p> <p>Tried before the Hon. Atorew B. Moore.</p> <p>This action was brought by Spencer Adams and Elizabeth his wife, against John Adams, who was the father of said Elizabeth and the uncle of said Spencer, and was founded on a contract which, in substance, was this : In July, 1849, there was a controversy existing between the defendant and one Jane Caudell, who was the sister of the defendant and the mother of Spencer Adams, relative to the will and estate of their deceased father, of which the defendant was the executor ; and Mrs. Caudell and her husband had appointed said Spencer Adams their agent and attorney in fact, authorizing him to demand and receive Mrs. Oaudell’s interest in her father’s estate, to make a settlement in her name with his executor, and to convey her interest in the estate. In consideration that Spencer Adams would abandon a contemplated chancery suit in reference to theáe matters, and would make to the defendant a good title to Mrs. Caudell’s interest in a certain tract of land which belonged to her father at the time of his death, the defendant promised that he would give Elizabeth Adams, the wife of said Spencer, a child’s share of his estate, which share is alleged to have been worth about $25,000. The declaration also contained the common counts. The pleas were, the general issue, want of consideration, failure of consideration, payment, and the statute of limitations of six years.</p> <p>On the trial, as appears from the bill of exceptions, the plaintiffs offered evidence tending to prove the contract declared on, and then proved that said Spencer Adams, on the 5th July, 1851, delivered to the clerk of the probate court of Dallas, for registration, a deed purporting to have been executed by said Jane Caudell and her husband on the 14th November, 1835, and conveying to the defendant the tract of land described in the complaint. The plaintiffs having rested their case, the defendant offered in evidence a written instrument, in form a deed, but not under seal, dated Sept. 15, 1833, signed by Jane Caudell and her husband, attested by said Spencer Adams, and purporting to convey to the defendant the same tract of land. On this deed was endorsed a certificate of acknowledgment, taken by one of the judges of the superior court of North Carolina, which bore some marks of erasure; and also, on the same sheet of paper, a letter from said Jane Caudell and her husband to defendant, informing him that, after they had acknowledged the deed, the judge examined it, and erased his certificate because the instrument was not under seal. This instrument also bore the certificate of the clerk of the county court of Dallas, that he had recorded it on the 5th August, 1856 ; and the clerk testified, that he thought the certificate of the judge was not erased. The defendant also proved the signature of the attesting witness to the deed ; and on this proof the court admitted the deed, and the plaintiffs excepted. !1 But the court afterwards charged the jury, that this deed did not convey the title of Jane Caudell to the lands therein described.”</p> <p>The defendant then offered in evidence, after proving its execution, a writing signed by Abner Caudell, and dated Feb. 8, 1832, which was in these words : “ Deceived from John Adams, executor of the estate of his father, Spencer Adams, deceased, the sum of one hundred and thirty-eight dollars, in full for all my right, title and interest in said estate, whereof I, as a son-in-law of said Spencer Adams, deceased, am one of the heirs ; and I hereby release and discharge him, the said executor, and also the said estate, from any and all demands and claims whatever, except the proportion that may be coming to me of the property held as dower-right by my wife’s mother.” The plaintiffs objected to the admission of this receipt,' but the court overruled their objection, and they excepted to its decision.</p> <p>“ The plaintiffs offered to prove that, at the time of the said agreement between said Spencer Adams and the defendant, on the 28th February, 1848, the said plaintiffs were poor and in destitute circumstances ; to which proof the defendant objected, and the court sustained the objection; to which the plaintiffs excepted.”</p> <p>The rulings of the court on the evidence, to which exceptions were reserved, are now assigned as error. •</p> <p>1. The court erred in allowing the deed from Caudell and wife, dated Sept. 15, 1833, to be read in evidence. It was not under seal, and therefore did not convey the land described in it. The act of 1839, providing that instruments purporting to be under seal shall be received as such, has no effect upon the case, because it was enacted after the execution of this instrument. Not conveying any title, the deed was irrelevant. Nor was it properly acknowledged.</p> <p>2. The receipt from Abner Caudell to the defendant was not under seal, and therefore did not release any interest in the lands. If it had been under seal, its only effect would have been to release the husband’s life estate, subject to the entry of the wife, or of her heirs, upon his death. — 2 Kent’s Com. 111.</p> <p>3. The evidence excluded by the court, as to the pecuniary condition of the plaintiffs at the time the contract was’made, was essential to the true interpretation of the contract.— Watts v. Sheppard, 2 Ala. 434 ; Ely v. Witherspoon, ib. 131; Bates v. Bank, ib. 452.</p> <p>1. The deed to which the plaintiffs objected, and to which Spencer Adams was an attesting witness, was clearly admissible to show fraud on the part of said Caudell and Spencer Adams ; and being admissible for that purpose, the objection, which was general, was properly overruled. — Hatchett v. Gibson, 13 Ala. 273 ; Havis v. Taylor, 13 ib. 324 ; Abney v. Kings-land, 10 ib. 355.</p> <p>2. The receipt was admissible to show a want of consideration for the promise declared on, as well as fraud in procuring that promise. — Eant v. Cathcart, 8 Ala. 725, and cases supra.</p> <p>3. Evidence of the plaintiffs’ poverty could not have any effect on the validity or construction of the alleged contract, and was therefore properly rejected.</p>

<p>Appeal from the Chancery Court of Chambers.</p> <p>Heard before the Hon. James B. Claek.</p> <p>The opinion of the court contains a full statement of all the facts deemed material to a correct understanding of the points decided.</p>

IN this case, ChiltoN, C. J., and Rice, J., having been of counsel before their election to the bench, and Goldthwaite, Jn being of opinion, from an examination of the record, that the judgment ought to be reversed, the cause was certified to the governor, at the July term, 1855, for a special court under section 573 of the Code ; and the Hons.

<p>[trover, by administrator against bailee op widow por conversion op slave.]</p> <p>1. Widow’s title to possession of chattels of intestate husband.- — When the husband dies intestate, and his widow remains in possession of his personal chattels, her right to their possession, until administration is granted on his estate, against every one but the rightful administrator, is maintainable upon a principle analogous to that which enables the finder of lost property to maintain trover for it against every one but the real owner.</p> <p>2. General charge on evidence, when calculated to mislead jury. — The court may properly refuse to charge the jury, at the request of either party, that if they believe the evidence they must find for him, unless the facts proved of themselves, independent of any inference which the jury might have drawn from them, entitled him to a verdict.</p>

ÁPPEAL'from the Chancery Court of Lowndes. Heard before the Hon. Wade Keyes.

<p>[SPECIAL STATUTORY PROCEEDING TO RECOVER PENALTY EOR RETAILING SPIRITUOUS LIQUORS WITHOUT LICENSE.]</p> <p>1. Construction of act of 1S56 respecting public schools in Mobile. — The act of 1856, “supplementary of an act entitled ‘an act to regulate the system of public schools in Mobile county,’ approved January 16, 1854,” (Session Acts 1855-6, p. 148; ib. 1853-4, p. 190,) does not repeal that provision of the former statute, which directed the collection and appropriation to school purposes of a tax on licenses for retailing spirituous liquors, and imposed a penalty of three times the amount of the license for its violation.</p>

<p>[action commenced by original attachment and garnishment.]</p> <p>1. Garnishee’s written answer part of record. — Although the garnishee may answer in writing, yet the plaintiff has the right (Code, § 2540) to require an oral answer in the presence of the court; and when the record shows that, after the garnishee had filed a written answer, he was again examined orally in open court, and that this oral answer was, by order of the court, reduced to writing and filed, the written and oral answers together constitute but one answer.</p> <p>2. Summons of transferee. — If tbe answer of the garnishee shows that a third person claims an interest in his debt to the defendant in attachment, it is the duty of tbe court to have him cited to appear and contest the plaintiff’s right to the money, although his claim may appear, from the facts stated in the answer, to bo invalid.</p>

Tried before the Hon. ANDREW B. Moore. This action was brought by Mary Averhart against John D. Fraliclc, to. recover a slave named Mack, together with damages for .his detention ; and the plaintiff having intermarried with John Presley pending the suit, her husband was made a party plaintiff with her.

<p>[ACTION ON PROMISSORY NOTE BY PAYEE AGAINST MAKER.]</p> <p>1. Validity of subsequent contract between endorsee and endorser. — The endorser and endorsee may, by contract subsequent to the endorsement, rescind or modify it; and such subsequent contract, so far as it conflicts with the endorsement, will control it.</p> <p>2. Construction of such subsequent contract. — A contract, by which the endorser agrees to extend the statutory time for the institution of a suit against the maker, and to repay the consideration in the event the note is proved to be void for fraud, or for want of consideration, or paid off, or reduced by scls-off, imposes on him the risk of the specified defenses only, but not that of the statute of limitations ; and if arecovery on the note is defeated alone by the plea of the statute of limitations, the contract is no defense to an action on the note which constituted the consideration of the endorsement.</p> <p>3. Admissibility of parol evidence to affect record. — Where issue is joined on several pleas, and the jury find a general verdict in favor of the defendant, parol evidence is admissiblo, in aid of the record, to show on what plea the cause was decided.</p>

Tried before the Hon. Nat. Cook. This action was commenced in a justice’s court, and removed by appeal to the circuit court, where the plaintiff filed the following statement: “ The plaintiff claims of the defendant $50, due by open account, for services rendered, due in 1852 and 1853, with interest thereon ; also, $50 upon account stated between- them the 18th January, 1852 ; also, $50 due upon a contract between them, made the- 18th September before the commencement of…

Tried before the Hon. Edmund W. Pettus. This action was brought by Benjamin E. Bigelow against Isaac L. Ward, and was founded on the defendant’s three promissory notes, amounting in the aggregate to about $300, and, all payable to the plaintiff. .The pleas were, the general issue, payment, and accord and satisfaction.

Tried before the Hon. Alex. McKinstry. This action was commenced on the 5th February, 1855, and was founded on the defendant’s three promissory notes, one of which was not due until the 1st March, 1855. The judgment was by nil dicit, for the amount of the notes and interest, and was rendered on the 14th April, 1855. It is now assigned as error, that one of the notes was not due when the suit was commenced.

<p>Appeal from tlie Chancery Court at Wetumpka.</p> <p>Heard before the Hon. James B. ClaRK.</p> <p>This bill was filed by William Rogers, the appellant, against Joseph H. Bradford, Benjamin A. Smoot, and Almon D. Waller; asking the rescission of a contract for the purchase of a tract of land from said Waller, on account of his defective title, an injunction of a judgment at law on the notes given for the purchase money, and general relief. The bill alleged, that Waller represented that he had a perfect and unincumbered title to the land, and that he executed to complainant a bond conditioned that he would make title on the payment of the purchase money, for which complainant executed his note ; that a suit was in fact pending, when said contract was made, to enforce a previous vendor’s lien for the purchase money, which suit was still pending when this bill was filed ; that complainant, on discovering this incumbrance on the title, tendered the land back to said Waller, and asked him to rescind the contract; and that Waller refused to do so, alleging that he would make a good title to the land on the payment of the purchase money. The bill does not allege that Waller is insolvent, nor is there any allegation of fraud on his part in making the contract. • The note for the purchase money was assigned by Waller to Smoot, who recovered a judgment on it for the use of said Bradford.</p> <p>The defendants Bradford and Smoot filed a joint answer, which need not be further noticed. The defendant Waller, in his answer to the original bill, admitted the execution of the alleged contract, and the pendency of the suit to enforce a vendor's lien on the land ; but insisted that he was a bona-fide purchaser without notice, and that the vendor’s lien was not operative against him. His answer also contained the following allegation: “Respondent has offered, since the commencement of this suit, to take back the land sold by him to complainant, and to procure a surrender of all demands against him on account of the sale thereof, if complainant would pay the costs that have accrued in regard thereto. This offer complainant refused to accept, but did agree to cancel the contract for the sale of said land if respondent would pay all costs incurred about it; and this is the only offer to cancel the contract between them in reference to the sale of said land.”</p> <p>On this answer, a motion was made to dissolve the injunction ; but the chancellor (Walker) overruled the motion, on the authority of Buckner v. Beirne, 9 Smedes & Mar. 305. The bill having been afterwards amended, the defendant Waller filed an answer to it, containing an allegation in these words : “ Respondent denies, on his own knowledge, that complainant tendered him the bond executed to complainant for the title to said half-section of land, and asked him to rescind said contract, or made any other offer on that subject than as set forth in respondent’s first answer to complainant’s original bill.” 'On the coming in of this answer, the chancellor (CLARK) dissolved the injunction ; and his decree.in this behalf is now assigned as error.</p>

<p>[ACÍION ON rKOMISSOItV NOTE — ‘JUDGMENT NIL DICII.]</p> <p>1. Amendment of complaint. — An amendment of the complaint, by a change of parties plaintiff, is not revisable on error, when the defendant was present in the court below, and there raised no objection to the amendment.</p> <p>2. Waiver of defects in complaint. — When the judgment is by nil dicit, and the - complaint shows a substantial cause of action, advantage cannot be taken on error of defects to which no objection was taken in the court below, though they might have been available on demurrer. — Code, § 2405.</p> <p>3. Judgment by nil dicit.- — when the defendant appears by attorney, and does not plead, judgment by nil dicit is proper.</p>

’ Heard before the Hon. A. J. Walkee. The original bill in this case was filed by Apples Sledge, an infant suing by her next friend, against… Held: that the limitation over to the brothers and sisters of Thomas A. Sledge was void, but that complainant took an undivided moiety of the land as heir of said Thomas ; that George Horton was not entitled to any compensation for improvements made o.n the lands, but was entitled to be subrogated to complainant’s rights in the negro…

Heard before the Hon. James B. ClaRK. This bill was filed by the appellant, against the president and directors of the Prattville Manufacturing Company ; charging them with gross mismanagement of the business of the company, misapplication of its funds, &c.; and asking that they might be compelled to render an account of the profits realized from the business, and to declare a dividend for distribution among the stockholders.

Tried before the Hon. C. W. RapieR. This action was brought by the appellant, to recover a slave named Maria, and her three children, and was commenced in March, 1852.

<p>Appeal from the Circuit Court of Butler.</p> <p>The record does not show the name of the presiding judge.</p> <p>This action was brought by James V. Pickens and Margaret C., his wife, against Samuel Oliver ; and the complaint, to which a demurrer was sustained, was in these words :— “ The plaintiffs claim of the defendant, as the separate estate of Margaret C. Pickens, wife of said James Y. Pickens, the following slaves, Amy, a woman, and her three children, Jane,' Austin, and Mima ; with the value of the hire of said slaves, or use thereof, during their detention, to-wit, from the 1st January, 1849.” The sustaining of the demurrer is the only matter now assigned as error.</p> <p>The principle is well settled, that where the wife is the meritorious cause of action, the husband may or not join her. — Morris v. Boothe and Wife, 8 Ala. 907. This action is brought to recover for the conversion of the wife’s separate estate. Where there is no trustee, the legal title is in the husband, if he reduces the property to possession. — Gerald and Wife v. McKenzie, 27 Ala. 166. But how is the court to know whether or not there is a trustee ? That must depend upon the proof; and the rules of pleading do not require that the proof should be set out in the declaration. In the action of trover or detinue, the plaintiff is not required to set out his title : he alleges only that the property is his, and that it is detained, or has been converted ; and whether the property is his or not depends on the evidence adduced in support of his title. He might, with equal propriety, be required to set out his proof as to how the conversion occurred. It is not pretended that a feme covert can sue at law; but, if she renders services, or is slandered, or assaulted and beaten, she may. join with her husband in the action. The case of Gibson v. Land, 21 Ala. 117, does not assert that the wife cannot be joined, but only that the husband may sue alone.</p> <p>1. At common law, the wife had no legal existence, and could not sue alone. Her separate estate could only be protected in equity ; she could maintain no action at law for its recovery. Unless the statute law gives the wife a remedy in her own name, she has none at law; and the statute gives her no remedy. — Gerald and Wife v. McKenzie, 27 Ala. 166 ; Friend v. Oliver, 27 Ala. 534.</p> <p>2. Nor can the wife be joined with the husband in suing for her separate estate. She has no standing in a court of law, as to her separate estate, except by virtue of some statute. •The cases in which she may be joined arc all defined ; and the declaration must set forth the facts showing her right to be joined. — 1 Chitty's Pleadings, 73, 7l ; Gibson v. Land, 27 Ala. 117.</p> <p>3. The complaint only alleging that the property sued for was the separate estate of the wife, without undertaking to show how it was held, or its character, the legal title vested in the husband as trustee, and he alone ought to have sued. Friend v. Oliver, supra.</p>

Appeal froth the Court of Probate of Lawrence. IN the matter of the last will and testament of James Armstrong, deceased, which was propounded for probate by his widow, Lucy Armstrong, and was in these words : “ In the name of God, amen. I, James Armstrong, being weak in body, but sound in mind, make this my last will and testament, viz : I give and bequeath to my wife Lucy all my property, both real and personal; and it is my wish that she shall live with my mother.

<p>[ACTIOS BY HEIRS-AT-LAW TO RECOVER ANCESTOR’S LANDS SOLD UNDER ORDER: OP orphans’ court.]</p> <p>1. Nature of proceedings in orphans’ court for sale of decedent’s realty.— Proceedings in the orphans’ court, for a sale of the real estate belonging to a decedent, are in rem ; and therefore, when collaterally attacked, cannot be avoided for mere irregularities.</p> <p>2. Widow may filepetitionfor sale. — The widow of the deceased is a “party interested,” within the meaning of the act of 1818, (Olay’s Digest, 195, § 18,) and may therefore file the petition for a sale of lands.</p> <p>3. Description of lands inpetition. — A description, of the lands by the numbers of the section, township and range “ in the district of lands sold at Cahaba,” sufficiently shows their location within the State of Alabama; since the court will1 take judicial notice of the fact, that Cahaba, and the lands within the district subject to sale at that place, are within this State.</p> <p>i. Allegation in petition that estate will be less injured by sale of lands than of slaves.■ — • Where the petition was in these words: “ Tour petitioner is satisfied that said estate would be less injured by a sale of the real estate described in the petition, than by a sale of the slaves belonging to the estate. If the slaves be sold, to pay said debts, it will leave to the heirs a largo amount of land, without any one to cultivate it; but if said lands be sold, it will leave to the heirs 170 acres, on which your petitioner resides, with a sufficient number of slaves to cultivate it; which is a matter of great importance to said minors, as well as your petitioner,”. — held, that the averment, although it might not have been sufficiently certain, on demurrer,, was sufficient, when collaterally assailed, to sustain the jurisdiction of the court. (Bice, C. J., dissenting.)</p> <p>5. Allegation of necessity for sale. — ■“ Yourpetitioner further represents, that said, estate is indebted to about.the amount of $4,000, and that it would probably take the whole amount of the slaves of the said estate to pay the debts of the same,” held a sufficient averment that a sale was necessary for the payment of debts.</p> <p>6. Statute not restricted'to intestates’ estates. — The authority to order a sale of lands, under the act of 1818, is not restricted to the estates of intestates, but extends to the estate of any deceased person..</p> <p>7. Plea of not guilty in a real action. — In an action for the recovery of lands, in the nature of an action of ejectment, the plea of not guilty (Code, § 2213) is equivalent to the consent rule, and is an admission of the defendant’s possession at the commencement of the suit.</p>

Tried before the Hon. Edmund W. Pettus. This action was brought by Arthur E. Williamson against Louis Stoudenmeier, and was founded on the defendant’s written warranty of the soundness of a slave.

<p>Appeal from the Chancery Court of Perry.</p> <p>Heard before the Hon. James B. Claric.</p> <p>This bill was filed by the appellant, to redeem his interest in certain lands, which had been sold under execution against him, and purchased by Charles Sibley, whose heirs-at-law and personal representative were made defendants to the bill. The material facts are stated in the opinion of the court. On final hearing, the chancellor held the allegations of the bill defective, and therefore dismissed it; and his decree is now assigned as error.</p> <p>cited Daniell's Chancery Practice, vol. 1, p. 421 ; Story’s Eq. Pleadings, §§ 240, 253 ; 1 Scammon, 192.</p> <p>cited Sandford v. Ochtalomi, 23 Ala. 670 ; and Paulling v. Meade, ib. 513.</p>

Heard before the Hon. Wade Keyes. The material facts shown by the record are these :— Under the act of February 17, 1854, “to aid the Mobile and Ohio Railroad Company,” (Session Acts 1853-4, p. 36,) a loan of $400,000 was made by the State of Alabama to said railroad company, to be repaid in two years ; and the repayment of this loan was secured by a mortgage on bonds of the company,' to the amount of $600,000, conferring a power of sale, in the event of a failure to repay…

Heard before the Hon. E. D. Townes. This bill was filed by the heirs-at-law and distributees -of John Webb, deceased, against his widow and personal representative ; asking the reformation and specific performance of an ante-nuptial contract entered into between said Webb and his second wife (now his widow), and an injunction of certain proceedings instituted by Mrs. Webb in the probate court for her dower and distributive share of her said husband’s estate.

Heard before the Hon. James B. ClarK. This bill was filed by E. L. & D. E.' Constantine, late partners in trade, to enjoin certain attaching and execution creditors of Young L. West and Penelope, his. wife, from further proceedings at. law to condemn to the satisfaction of their debts a stock of goods which the complainants claimed under a mortgage executed to them by said West and wife, who were also made-defendants to the'bill.

<p>[ACTIOS OS OPEN ACCOUNT — PLEA AVERRING SUBMISSION TO ARBITRATION.J</p> <p>1. Sufficiency of plea. — A pleat's darrein continuance, averring that the matters-in controversy had been submitted to arbitration, and that the arbitrators had made an award, is fatally defective on demurrer, unless it sets out the submission and award, either substantially, or in hose verba.</p>

<p>Appeal from the Circuit Court of Pickens.</p> <p>Tried before the Hon. 0. W. Rapier.</p> <p>The complaint in this case, as amended, (the words inserted by way of amendment being italicized,) was as follows :</p> <p>“ James W. Crawford, adm’r \ The plaintiff, as administra-de bonis non of Nancy Cul-1 tor de bonis non of JYancy Cul-lens, deceased, plaintiff, \ lens, deceased, claims of the dews. Vfendant the folowing slaves— Thomas Orimm, defendant, /to-wit: Ben, a man about fifty years of age, and Esseck, or Essex, a man about twenty-six years of age ; with the value of the hire, or use thereof, during the detention — to-wit: from the 1st day of Jan’y, 1848.”</p> <p>The defendant pleaded, 1st, that the slaves sued for are not the property of the plaintiff; 2d, non detinei; 3d, the statute of limitations of six years. The defendant died pending the suit, and it was thereupon revived against his administrators. On the trial, as the bill of exceptions states, the plaintiff failed to show any individual cause of action, but the evidence tended to show a right of action in him as administrator of Nancy Cullens, deceased. “ After the evidence and arguments on both sides were closed, the defendants requested the court to charge the jury, that if the plaintiff had proved no title in himself in his own right, but had only proved title in Nancy Cullens, the jury must find a verdict for the defendants. The court said, this charge should be given, but the plaintiff might amend his complaint, if he desired to do so, by alleging that he sued as administrator of Nancy Cullens, and thus obviate the effect of the charge. To this action of the court the defendants excepted.” The plaintiff then moved to amend his complaint, by inserting the words above shown, and his motion was granted ; the defendants excepting to the allowance of the amendment. After the amendment was made, the defendants requested the court to charge the jury, 1st, “ that if they believed all the evidence, they must find for the defendants” ; and, 2d, “ that if the plaintiff has proved no title in himself individually, but has only proved title in Nancy Cullens, the jury must find a verdict for the defendants.” The court refused these charges, and the defendants excepted. .</p> <p>All the rulings of the court, to which, as above stated, exceptions were reserved, are now assigned as error.</p> <p>1. As the pleadings and evidence stood when the first charge was asked, that charge should have been given ; for the pleadings only put in issue the plaintiff’s individual right to recover. — Agee v. Williams, 27 Ala. 644. It was not proper for the court, instead of giving the charge, to say it should be given, and at the same time to suggest to the plaintiff how its effect might be anticipated and obviated. It was the duty of the court to give the charge, as requested, and leave the plaintiff to take his own course in reference to it. The action of the court was equivalent to taking the management of the plaintiff ’s case into its own hands.</p> <p>2. The amendment was not allowable, for the purpose suggested by the court. Section 2403 of the Code only allows defects oí form, to be amended, and defects of parties, where there are more than one. The amendment allowed was one of substance, if of any effect at all. It was equivalent to striking out the name of one sole plaintiff, and inserting another. It changed the character in which the plaintiff sued altogether. As the complaint stood before the amendment» James W. Crawford, in his individual character, was the plaintiff, (Agee v. Williams, 27 Ala. 644 ;) and as amended, if the amendment made a material change, he became plaintiff as administrator of Nancy Cullens. These are totally different characters. — Chapman v. Spence, 22 Ala. 588 ; Walden v. Smith, at the last term. An amendment which substitutes one sole plaintiff for another, is erroneous. — Leaird v. Moore, 27 Ala. 826.</p> <p>3. The amendment did not change the character of the suit. James W. Crawford still remained plaintiff in his individual character. The words added by the amendment, in the commencement of the complaint, were as much descrip-tio personae, as those stated in the margin. The complaint, after the amendment, did not count upon the title of Nancy Cullens, nor allege that the slaves sued for were assets of her estate, any more than it did before. — Tate v. Shackelford, 24 Ala. 510; Arrington v. Hair, 19 Ala. 248 ; Agee v. Williams, 27 Ala. 644. The complaint, as amended, amounts to nothing more than was stated in the margin before the amendment. The case of G-ibson v. Land, 27 Ala. 117, seems to be precisely in point. In that case, both the writ and declaration described the plaintiff as suing “ as trustee for his wife, Elizabeth Land,” and the words “ as trustee,” &c., were treated as merely descriptio personae. The charges asked after the amendment was made, ought, therefore, to have been given. — Agee v. Williams, 27 Ala. 644.</p> <p>contended, 1st, that the suggestion of the amendment was a matter of discretion with the primary court; 2d, that the amendment itself was proper under the Code ; and, 3d, that the amended complaint authorized a recovery by the plaintiff on the title of his intestate.</p>

Heard before the Hon. James B. Clauk. The material facts shown by the record are these :— In September, 1840, Dr. Henry- Trippe and Mary A. Harris, in contemplation of marriage,' entered into an ante-nuptial contract, by wbicb the property, both real and personal, of the said Mary, was secured to her sole and separate use. The marriage was soon afterwards solemnized; and the parties lived together as man and wife, until the death of the said Henry.

Tried before the Hon. JOHN Gill Shoetee. The complaint in this case was in these words :— “ The mayor and aldermen of the city of Wetumpka, plaintiffs, vs. John G. Winter, defendant. _ . Held: that a municipal corporation would not be authorized to exercise the right of appropriating streets, or to narrow or widen them, unless expressly vested with such power by its charter, or in carrying out an incident to such express delegation. In Smith v. Ala.

Heard before the Hon. Wade Keyes. This bill was filed by Beverly N. -Wilkinson, against the heirs-at-law of Mrs. Jane A. E. McBryde, deceased, seeking to enjoin an action at law for the recovery of a… Held: that the words “ the foregoing instrument,” used in the second certificate of the justice, referred to the relinquishment of dower, and not to the deed.

Tried before the Hon. JOHN Gill Shorter. The complaint in this case was in these words : ; John Gibson, plaintiff, vs. George Marquis, and Mary R. Marquis, deft’s. The plaintiff claims of the defendants $6,425, with interest thereon, due by two promissory notes, made by them on the 30th day of September, 1854, and payable on or before the 1st day of January, 1856 ; the one for $3,212, with interest from the 1st day of January, 1855 ; the other for $3,213.

<p>[ACTION BY NON-BESIDENTS COMMENCED BY OBICINAl ATTACHMENT.]</p> <p>1. Security far costs necessary. — In an action by a non-resident, commenced by original attachment, security for costs is necessary, (Code, § 2396,) although the attachment bond is conditioned that the plaintiff “ shall prosecute his attachment with effect, or, failing therein, pay the defendant all such costs and damages as he may sustain for the wrongful suing out of said attachment.”</p> <p>2. Liability of surety for costs. — Although a summary judgment is given against the surety for costs, (Code, § 2399,) only in the event of the plaintiff being successful in the suit ; yet he is liable for them, equally with the plaintiff, if, when adjudged against the defendant,‘they cannot be collected.</p>

<p>[bill in equity to enforce assignment of distributee’s interest in UNDIVIDED ESTATE.]</p> <p>1. Assignment pendente liteMdchampertous. — A contract, by which a distributee, pending a protracted litigation respecting the validity of the decedent’s will, assigns to a stranger, in consideration of 6100 in hand paid, all his interest in the estate, which proves to be worth about $1,000 ; reciting in the assignment, that he is “ becoming uneasy, and willing and desirous to sell his interest in said will and estate for a sum certain, to be released of all the trouble and expense of contesting said will,” — is cliampertous, and will not be enforced in equity.</p>

Tried before the Hon. Robert Dougherty. This action was broughtby Charles Sanford against George W. Howard, to recover the price of certain goods and merchandize, which were sold and delivered by plaintiff to the minor children of Jacob Mayberry, deceased, on the defendant’s verbal promise, which, as proved by plaintiff’s clerk, was in these words : “ Let tbe children of Jacob Mayberry, deceased, have any goods they wish, and charge them to the children separately, and I…

<p>Appeal from the Circuit Court of Benton.</p> <p>MOTION to dismiss the appeal, on the ground that it is barred by the statute of limitations. The record shews that the judgment was rendered on the 21st April, 1851 ; that a writ-of-error bond was executed on the 15th September, 1851, returnable to the then next term of this court, but the cause was not docketed, and no proceedings appear to have been afterwards had on said writ of error; that an appeal bond was given in the court below, in March, 1854, payable to the next friend of the plaintiffs of record, but formal in all other respects ; that another appeal bond was executed in August, 1854, returnable to the then next term of this court, and in all respects formal.</p>

Tried before the Hon. Andrew B. Moore. This action was instituted by the appellee, a corporation chartered by the legislature of this State, under sections 2574-86 of the Code, to recover damages for the loss of a barge, freighted with coal, which was sunk by collision with the steamboat ‘ Empire.’ At the trial term, as appears both from the judgment entry and the bill of exceptions, the defendants moved to dismiss the suit, on account of the plaintiff’s failure to give…

<p>[statutory action by administrator to recover damages for intestate’s DEATH.]</p> <p>1. Merger of civil action in felony. — The common-law doctrine, as to the merger of a civil action in a felony, does not apply to a statutory action (Code, § 1938) by an administrator to recover damages for the wrongful act or omission which caused the death of his testator.</p>

<p>JBILL IN EQUITY FOR FORECLOSURE OF MORTGAGE ON PERSONAL PROPERTY.]</p> <p>1. Domicile. — A temporary absence from the county of one’s fixed domicile, on business or pleasure, with the Intention of returning, and an actual return in accordance with such intention, do not work a change of domicile. .</p> <p>2. Mortgage not affectedly renewal of note. — The renewal of a note or bill of exchange, secured by mortgage, is neither a payment nor a discharge of the lien of the mortgage.</p> <p>3. Nor by second mortgage on same and other properly. — A second mortgage, on the same and other property, postponing the law-day fixed by the first, does not destroy the lien of the first.</p> <p>4. Registration and notice. — Actual notice of a prior unrecorded mortgage dispenses with the necessity of registration : a party who, with such actual notice, takes a conveyance of the mortgaged property, can claim no advantage, as against the prior mortgagee, on account of the want of registration.</p> <p>5. Who area-editors andpurchasers under ac¿o/’1828. — Taking a second mortgage as a further security of a pre-existing debt, without incurring any new liability, or parting with anything valuable, does not constitute the mortgagee either a creditor or purchaser under the act of 1828. (Clay’s Digest, 255, § 5.)</p> <p>6. Adverse possession as between mortgagor and mortgagee. — The statute of limitations does not begin to run against a mortgagee out of possession, as in favor of the mortgagor’or his vendee, even after the law-day has passed, until there is some overt act, or open assertion of adverse title, because the latter are presumed to hold in subordination to the title of the mortgagee ; and if a second mortgagee recover the property (personal) by suit from the mortgagor, and afterwards purchase at his own sale, the first mortgagee is not barred of his right of foreclosure, at least until after the expiration of six years from the sale.</p> <p>7. Presumed satisfaction of mortgage debt. — Where a mortgage, given to secure an accommodation endorser in bank, became forfeited in 1838, while the bank debt was extended, from time to time, until 1842, and reduced to judgment in 1843; the balance due on the judgment being- paid by the mortgagee in January, 1845, — held, that the mortgage debt could not be presumed satisfied, so as to bar the right of foreclosure, at least until the expiration of six years from the time of this payment.</p>

<p>[application por prohibition to probate court.]</p> <p>1. Writ doe-i not lie, in first instance, to probate court. — The supremo court will not, in the first instance, award a prohibition to the probate court: application must be first made to the circ.uit court, which is invested by statute (Code, § 628) with power and authority to exercise a general superintendence over the probate court.</p>

Heard before the Hon. James B. Clark. This bill was filed by Mrs. Rebecca J. Hanberry, suing by her next friend, against her husband, Henry R. Hanberry ; asking a divorce, on the grounds of adultery and abandonment. A decree pro confesso, on proof of publication, was taken against the defendant as a-non-resident.