Volume 3 — Alabama Reports

<p>Error to Talladega Circuit Court.</p> <p>THIS was an action commenced before a justice of the peace, in which the plaintiff in error obtained a judgment for ten dollars. The defendant prosecuted an appeal to the County Court of Talladega. The proceedings before the justice of the peace, and his certificate, are as follows:</p> <p>JAMES Hancock ^ f Judgment for the plaintiff by default | of the defendant, for the amount of > MOTION.plaintiff’s demand and coste. | Debt, ; : : i Costs, : : : : . V. William Holmes. $10 00 93 3.4</p> <p>I, John H. Townsend, a justice of the peace for said county, do hereby certify the above to be a true transcript of the pro•ceedings in the above cause, from my docket. I do further certify the motion given the defendant in the cause, is lost.— James Hancock directed satisfaction to be entered upon n-y docket, which was accordingly done agreeably to plaintiff's direction, but after this appeal was taken. Given under my hand and seal.</p> <p>And at the return term of the appeal, the county court dismissed the appeal for want of prosecution.</p> <p>From this judgment the -plaintiff prosecuted a writ of error to the Circuit Court of Talladega county, and there assigned for error:</p> <p>1. That the County Court erred in giving judgment against the plaintiff in error by default.</p> <p>2. In rendering judgment against plaintiff in error for costs.</p> <p>Í). In rendering judgment of dismissal against plaintiff in error.</p> <p>The Circuit Court affirmed the judgment of the County Court, from which judgment the plaintiff prosecutes this writ of error» and assigns for error the judgment of the Circuit Court.</p>

Writ of error to the Circuit Court of Greene county. Action of assumpsit on a promissory note. THE declaration alleges that the defendant and one Calvin Jones, being merchants and partners in trade, under the name and firm of C. Jones & Co., made their promissory note, &c. The defendant pleaded, 1. Non assumpsit. 2. That ho never made the note sued on, nor ever author-íised any one to make it for him, and that the same is not his promissory note. 3.

<p>1. An indictment for playing at cards in. a store-housc where spirituous liquors arc retailed, must allege such to have been the character of the store-house when the playing took place; and it is not enough to aver, that spirituous liquors were retailed there when the indictment was found — the playing being charged on a previous day.</p> <p>2. Where the defendant pleads not guilty to an indictment, containing three counts, and the entire causéis submitted to a jury who find a verdict as to one count, without responding to the others, the cause is at an end.</p>

This was a trial of right of property in four slaves, in which the plaintiff in error was the claimant, and the defendants in error, plaintiffs in execution. The latter obtained, a verdict and judgment.

<p>Writ of error to the Circuit Court of Sumter county.</p> <p>ACTION of trespass to try title. .The defendant pleaded not guilty, on which issue a verdict was found and judgment rendered for the plaintiffs.</p> <p>At the trial, it appeared that one Betsey Buckholts, was located on the land in controversy, on the 26th December, 1834, under the provisions of the 14th article of the treaty made with the Choctaw tribe of Indians, generally called the treaty of Dancing Rabbit Creek, and that the patent issued to her the 17th February, 1838. The defendant was in possession and cultivated the lands from 1835 to 1838, inclusive. Betsey Buckholts died about the 9th of February, 1838, and the plaintiffs, are her heirs at law. The Circuit Court instructed the jury that the plaintiffs were entitled to recover damages for the whole time that the defendant was shown to be in possession after the acquisition of title by the plaintiff’s ancestress as well before as after her death.</p> <p>The defendant excepted to this charge and now assigns that the Circuit Court erred in giving it to the jury.</p>

<p>THIS was a suit by attachment for the recovery-of the amount of a promissory, note, by the defendant in error against the plaintiff] in the Circuit Court of Tuskaloosa.</p> <p>The affidavit, after properly describing the amount and evidence of the indebtedness affirms “ that said Ewing F. Calhoun resides out of this State, so that the ordinary process of law cannot be served on him, and further, that said Ewing F. has not sufficient property within the State where he resides, in the knowledge of affiant, wherefrom to satisfy said debt; and that an attachment is not sued out for the purpose of vexing or harrassing the said Ewing F, Calhoun,” &c.</p> <p>The bond is in due form, attested by the Justice of the Peace who issued the attachment and bears date the 6th August, 1840, with an endorsement as follows : “ I approve the within bond August 22, 1840.</p> <p>M. D. Williams, Judge C. Court.”</p> <p>The writ of attachment after reciting so much of the affidavit as declares the indebtedness of the plaintiff in error, proceeds as follows: “.and oath having been also made, that the said Calhoun resides out of this State, so that the ordinary process of law cannot be served upon him, and the said Cozzens having given bond and security,” Ac.</p> <p>At the return term of the attachment, the defendant moved the Court to quash the same, “because the affidavit is defective and insufficient, and because there is no such bond as the law requires, &c.;” which motion was overruled by the court. Thereupon, the defendant pleaded to the merits and the cause w'as submitted to the jury, who found a verdict for the plaintiff, and a judgment being thereupon rendered, the defendant has prosecuted a writ of error to this court.</p>

<p>Error to the County Court of Cherokee.</p> <p>THIS action was commenced before a justice of the peace' by the defendant in error against the plaintiffs in error. The justice rendered judgment for the defendants below, from which the plaintiff appealed to the County Court of Cherokee. In that Court the plaintiff filed his statement, setting forth a special contract, on which he alledged there was due to him forty-nine dollars and fifty-seven cents; also, for work and labor, money paid at their request, &c. and laid his damage at one hundred dollars. The defendants pleaded non assumpsit, and the jury having given a verdict in favor of the plaintiff for twenty dollars, judgment was rendered in his favor for that amount, from which the defendants prosecute this writ of error.</p> <p>The only error insisted on is, that the justice had no jurisdiction.</p>

<p>1. When a writ of error is sued out to remove a case from the county to the circuit court, and the record is not filed, but the writ of error is dismissed, and the judgment of the county court affirmed on certificate, the judgment entry must shew affirmatively, every fact necessary to authorise the judgment pn certificate.</p> <p>2. When the judgment entry recites that it appeared from the certificate of the clerk of the county court, that one of two defendants to a judgment in that court, prayed for and obtained a writ of error, and executed bond, &c. &e., thelegal presumption is, that the writ of error was sued out by one, in the name of both defendants.</p>

<p>1. According to the modern- practice, oyer is not demandable of a record', unless-it be of ad'eed enrolled, letters of administration-, &c.</p> <p>2. The proper mode- of taking advantage of a misrecital of a record in pleading,, is, by the pica of ml tiel vecord, concluding with a prayer that the same may be inspected by the Court. A demurrer insuch case, would not avail the defendant, because the record misrecited,.does not become a part of the proceedings in the cause, until it is made such by bill of exceptions.</p>

<p>1. On a motion against a sheriff, suggesting that by due diligence, the money due on an execution could have been made, a traverse of the allegations of the suggestion, would be an issue under the statute.</p> <p>2. The sheriff may plead to such a suggestion any matter in excuse or avoid-anee, which would negative the allegation of want of proper diligence.</p> <p>3. A plea, which merely stales that the execution was levied a short time before the return day, a delivery bond taken and returned forfeited, without showing a sufficient excuse for the delay, is bad.</p> <p>4. It is the duty of the sheriff to provide himself with a sufficient number of competent deputies to enable him to execute the mandates of the Coujt within the time prescribed by law.</p>

<p>1. A declaration describing a promissary note as bearing date in November, 1836, and payable on the Isi -day of March, eighteen hundred and twenty-nine, meaning thirty-nine, must be considered as containing a sufficient cause of action, after.a judgment by default.</p> <p>2. The defendant omitting to plead to such a declaration, thereby admits the cause of action as stated, and the damages may be ascertained by the clerk, without the intervention of a jury.</p>

<p>THIS was a proceeding under the statute, in the county court of Sumter, in the nature of a libel in admiralty.</p> <p>The libel alleged that the libellant caused to be shipped on the steam-boat Robert Morris, at the city of Mobile, sundry articles of merchandize, particularly described, consigned to himself at Gainesville, in the county of Sumter: that the merchandize was never delivered to the libellant, according to the terms of the bill of lading, or in any other manner. The Judge of the County court, to whom the libel was addressed, with a prayer, for that purpose, indorsed thereon his fiat in the following words:</p> <p>“ To the clerk of the County Court of Sumter county. .Let a warrant of seizure issue against the within named boat, Robert Morris, commanding any sheriff of the State of Alabama, to seize and take into his possession, the said boat, her tackle, apparel and furniture, arid the same in his possession, safely to keep, so as to be subject to the future decree of the court; but subject nevertheless, in the meantime, to be replevied out of his hands, upon bond or stipulation, with security being entered into in due form of law; and united with said •warrant, let there be a clause, commanding that due monition be given to all persons whom it may concern, by attaching a copy of said process upon some conspicuous part of the boat, to be and appear at the next term of the County Court of Sumter county, to shew cause, if any they have or can, why the said boat should not be condemned, the said libel sustained, and the prayer of relief granted.”</p> <p>Trie warrant of seizure was issued and executed by the sheriff, taking into his possession the boat with her tackle, &c.; which was claimed by Alphonso Brooks, the master, who entered into a stipulation upon replevying the boat, conditioned ; that “ if said Brooks, the claimant of said boat, shall pay such judgment as shall be recovered and rendered on' said libel, then this bond to be void, otherwise, in full force.”</p> <p>The cause being called for trial, the same was dismissed on motion, because it did not appear by the sheriff’s return, that monition had been made as directed by the writ of seizure. From which decree, the libellant appealed to this Court.</p>

<p>Error to Tuskaloosa County Court.</p> <p>THIS was an action of assumpsit, by the defendant in error against the plantiff in error, as'indorséüftf a bill of exchange.</p> <p>The bill was dated, Tuskaloosa, 26th December, 1836, and drawn by Moses P. Walker, in favor of J. J. Foster, for twelve hundred and fifty dollars, on the 1st January, 1839, negotiable and payable at the Bank of the State of Alabama.</p> <p>The bill though not drawn on, was accepted by G. Long-mire, and endorsed by the defendant ^Robert J. Walker, and Dubose <fc Rolf, which last indorsement was filled up to the order of E. F. Comegys, Esq. cashier.</p> <p>At the maturity of the bill, it was presented by a notary public at the bank for payment, who, for default of payment, made protest and certifies, that “ notices of protest were deposited in in the post-office same day, for the drawer and first two indor-sers, respectively, at this place.” The defendant then proved, that before, and at the maturity of the bill, he resided at Tus-kaloosa, the place of payment, and moved the court to charge the jury, that upon the evidence offered, the plaintiff is not entitled to a verdict, which the court refused; and further, that unless the jury were satisfied, from the evidence, that personal notice was given to the defendant, of the protest for non-payment of the bill, they must find for the defendant; which was refused ; and the court charged the jury, that personal service of notice of the dishonor of the bill was not necessary to charge the defendant, except where the parties all resided in the same city, and that the notice stated by the notary to have been given, was sufficient.</p> <p>To the refusal to charge and to the charge given, the defendant excepted, and now assigns for error.</p>

<p>1. Where money is wagered and deposited in the hands of a stake-holder, it may be arrested by either party before it is paid over, by a notice not to pay it. In such a case, however, a special demand would be necessary to enable him who gave the notice, to maintain an action for the sum deposited by him.</p> <p>2. But if the stake-holder, after being so notified by one of the parties, pays the money to the other, he thereby waives the special demand, and may be sued as soon as the plaintiff elects to consider the wager as void ; or as soon as it is ascertained that in point of fact, the wager was neither lost nor won.</p>

<p>This cause comes here by writ of error, from the Chancery Court sitting at Montgomery.</p> <p>THE plaintiffs allege in their bill, that in the year 1836, they contracted with the defendant, Featherstone, for the purchase of several tracts of land, situate in the county of Macon, at the price of eleven thousand dollars — one half of this sum was to have been paid sixty days after the purchase, and the balance in twelve months. The sum first due has been paid, and for the payment of the last sum, they executed their promissory note, payable twelve months after date.</p> <p>The lands agreed to be sold, it appears, were reservations of Creek Indians, under the treaty of 1832, and the vendor represented to the plaintiffs “ that he possessed the approved contracts” therefor; and in a bond which he executed to the plaintiffs, covenanted to obtain patents for the lands by the first day of January, 1839, and to make titles to them for the same, as soon as patents should issue “from the government of the United States.”</p> <p>It is further stated, that the plaintiffs have never been in the actual possession of the lands in question; that Featherstone “never did possess the approved contracts for the same,” and now resides without the limits of the State, and is of very doubtful solvency.</p> <p>The complainants allege, that Featherstone made fraudulent representations to them touching his title to the lands, and a fraudulent combination between himself and co-defendant, by which McDougald became assignee of their second note, and has prosecuted a suit thereupon to judgment against them in the Circuit Court of Macon.</p> <p>The complainants declare their readiness and willingness, and offer to pay the judgment recovered by McDougald, whenever their vendor shall make them titles pursuant to the condition of his bond.</p> <p>Itps prayed that execution upon the judgment may be enjoined, and that the defendants may answer; “and that your orators may have such other and further relief in the premises as to your honor shall seem meet, and the nature and circumstances of the case may require.”</p> <p>The defendants answered severally, very fully, denying all fraud and combination, wherewith they are respectively charged ; and the defendant, Featherstone, avers, that he had approved contracts for the several tracts of land, and if patents had not been issued by the- government for the same, they would issue as a matter of course. _ ¡That he is willing to make the necessary titles to the complainants, and demurs to their bill because it is not alleged therein that a deed was ever presented to him for his execution.</p> <p>The chancellor dissolved the injunction and dismissed the bill, because the answers denied all the material allegations, and there was no prayer for “relief beyond the injunction.”.— The dismissal of the bill is now assigned for error.</p>

<p>1. An' appearance by the defendant in a suit, commenced by attachment, will have the same effect as a waiver, as it'would have in a suit commenced in the usual mode.</p>

<p>1. The 25th day of December, is not dies non juridicus, nor will a writ of error be quashed, because if was issued on that day.</p> <p>2. The affidavit for an attachment need not declare the manner in which the debt sworn to, accrued.</p> <p>3. Under the attachment act of 1833, Ailcin’s Digest, 37, the writ could only be executed in the county to which it was returnable, otherwise, under the act of 1837. P. P. 65 sec. 12.</p>

<p>1. All grants of any portion of the lands coded to the United States by the Treaty of Paris of 1803, subsequently to the Treaty of St. Ildefonso, of 1800, excepting such .as were made to actual settlers, previous to the 20th of December of 1803, are null and void.</p> <p>2. Congress docs not possess the constitutional power to grant the shore of the navigable waters within this State; and the fact that the grantee had on inoperative Spanish grant for the same, cannot legalize the act of Congress.</p> <p>3. A patent for lands, the invalidity of which appears by inspection, will not authorize a recovery, and it is unnecessary to resort to Equity, to vaate it.</p>

<p>1. It is no defence to a suit on a note, that one of the defendants had been garnisheed by a creditor of the payee, and judgment obtained against him, without proving, also, that the judgment had been satisfied.</p> <p>2. Such proof may be made in the action of assumpsit under the general issue. •</p>

Writ of error to the Circuit Court of Dallas county. THIS action was commenced by attachment, sued out bv Sackfield Brewer, as the agent of the plaintiff. The affidavit made by the agent states, that the plaintiff is a citizen of this State; in other respects it is in strict conformity with the statute, except that at the close it omifs the word defendant— thus — and that an attachment is not sued out for the purpose of vexing or harrassing the said-.

<p>Writ of error to the Circuit Court of Mobile.</p>

THIS action was commenced by the plaintiff in error as-endorsee of a bill of exchange against Hugh McCann, as drawer. Pending the action, the defendant died, and the suit was revived against the defendants in error, as his administrators.

Writ of error to the Court of Chancery for the fourth district of the northern division.

This cause comes hero by appeal from-the Chancery Court,sitting at Mobile. Held: on .payment of the said sum of The bill being continued from time to time, on the 15th January, 1838, the appellant filed a demurer to the same ; and ■upon the organization of separateChancery courts shortly thereafter, the cause was transferred to that jurisdiction.

<p>Error to the Circuit Court of Greene county.</p> <p>THIS was an action of trespass to try titles, brought by the defendants in error against the plaintiff in error. The suit was originally commenced by three persons, one of whom, having died pending the suit, it was ordered that the suit survive in the name of the survivors. The jury found a verdict for the plaintiffs for “ two undivided thirds of the lands in the declaration mentioned, and the sum of thirteen hundred and thirty-four dollars fifty cents damages, by reason of the detention of the premises, in the declaration mentioned,” upon which the following judgment was rendered: “It is therefore considered by the court, that the plaintiffs recover of the defendant, two undivided thirds of the south-east quarter and of the north west quarter of section thirty-two* in township twenty., of range three, east situate, in Greene county, the lands in the declaration mentioned pursuant to the finding of the jury, also the sum of thirteen hundred and ninety-four dollars fifty cents, damages-by the jury assessed,” &c:</p> <p>Pending the trial, a bill of exceptions was talcen, which sets forth that on the trial of the cause, the plaintiff, to establish his-title, proposed to read as evidence to the jury, two copies-of patents, which taken together, covered the land claimed in this-suit, each bearing date on the first of September, 1824, and purporting to have been duly issued according to law, with-a scrawl drawn around the letters L. S. thus (L. S.)'where the seal of the General Land Office is always affixed in original .patents of lands granted by the government of the United States* On the said copies of patents-there was written the certificate-of Commissioner of the General Land Office,-in the words and figures, following: “General Land Office, October 26,1837, — - I hereby certify, that the within is a true copy of the patent on record in the office. In testimony whereof,.I.have hereunto subscribed my name; and caused the seal of the office to be affixed'at the city of Washington, on the day and year above written.”</p> <p>James Whitcomse, Commissioner.</p> <p>To this certificate, the seal of the General Land Office, w-as duly affixed. The plaintiffs ofieredno evidence to the court of any diligence used whatever, to procure- and-produce the original patents,- of which the copies were offered as above; nor did he in. any manner, attempt to account for the absence or want of the originals; The defendants counsel objected to the copies being read as. evidence, without such preliminary proof to the court, which motion was by the court, overruled and the copies permitted to be read as evidence of title, to which the defendant excepted.</p> <p>The defendant now prosecutes this writ of error, and assigns for error,</p> <p>1st. The admission of the copies in evidence.</p> <p>2. The giving judgment for damages, for all the lands claimed in the declaration, when the defendants in error, were only .entitled to two third, thereof.</p> <p>cit-ed the dissenting opinion of Judge Johnson, in the case relied- on by the counsel for the defendant in error, reported in 5th Peters Rep. 241, and maintained that the copy or inspeximns of a grant, was not evidence per se, at common law,- and that the statutes of 4th Edward, and 13th and 17th of Elizabeth, by which he insisted such copies were admitted, were not in- force in this State.</p> <p>cited 1st Phillips on Ev. 424; ib. 387; 2d Washington, 276; 7th Wheaton, 272; 9th Wendell, 44; 3 Littell, 330; 3 Stewart, 60.</p> <p>On the point as to the verdict, 1 Bibb, 251; 4 ib. 194; 2 ib. 178, Littell* Sel. Cas. 367 ; 7 Porter,-441; 8. ib 66; 9 ib. 118.</p>

<p>Writ of Error to-the Circuit Court of Greene county.</p> <p>ACTION of assumpsit on a written guaranty, which is described in the three first counts of the declaration in.these words:</p> <p>“■March 28th 1838. For and in consideration of having'obtained from the Real Estate Banking Company of Starkeville,. Miss., a loan of four thousand three hundred dollars, at nine months, I do hereby obligate myself, my heirs, &c. to deliver to said Real- Estate Banking Company of Starkeville, Miss., the-entire crop of cotton, which I may make during the present year, estimated at one hundred and seven bales, and to place the same in good order in due season, at McAlpin’s- bluff, on the Tombigbee river, then and there to be subject alone to the order of the said Real Estate Banking Company of Starkeville, Mississippi. It is understood that when said cotton is delivered, I am to have the privilege of directing as to where the same shall be sold; witness my hand and seal.</p> <p>L. B. Johnson, (Seal).</p> <p>We, the undersigned, bind ourselves as securities for the ful-filment of the above obligation.</p> <p>Wm. T. Bell,' (Seal.)</p> <p>John M. Bell, (Seal.)</p> <p>The fourth count, without setting forth the contract in hcec verba, describes it in substance, and avers that the principal, Johnson, in the year 1838, made one hundred and seven bales of cotton. In this count, the breach is laid in not delivering the said one hundred and seven bales of cotton. ' In the previous counts, the breach laid is, that .the said Johnson, did not deliver his entire crop, made in the year 1838, estimated at one hundred and seven bales: a fifth .count describes the .contract of Johnson, as a contract to deliver one hundred and seven bales of cotton absolutely, but in all other respects follows the terms of the contract as set out in the three first counts. In the fifth count, there -is no averment that Johnson made any, or if’ any, how much, cotton in the year 1838, and the breach is laid in the non-delivery of one hundred and seven bales, at McAl-pin’s bluff.</p> <p>The defendants pleaded the general issue, and one of them, Wm. T. Bell, also pleaded infancy.; a verdict was found for the plaintiffs against the defendant, John M. Bell, and in favor of Wm. T. Bell, on the plea of infancy; on this verdict judgment was rendered.</p> <p>In the progress of the trial, a bill of exceptions.was sealed at the instance .of the defendants, which discloses that the plaintiffs offered to read in evidence, the 'contract which is set out in the previous part of this statement. The defendant objected to its being read as evidence to support the fifth count of the declaration. The Court admitted it as evidence under all the several counts, to which the defendant excepted.</p> <p>No evidence having been offered to show what amount of cotton was made by Johnson, during the year 1838,and it being admitted that he delivered none at the place designated in his obligation, the defendant asked the Court to instruct the jury that the covenant was not to deliver one hundred and seven bales of cotton, but the entire crop of cotton, which the said Johnson made during the year 1838; and the plaintiffs not having given any evidence' of any cotton having been made by the said Johnson, during the year 1838, they could not recover any damages of the defendant; or if any, only nominal damages. This was refused: the defendant then asked the Court to charge the jury, that the measure of damages was, what the plaintiffs had lost by the non-delivery of the cotton, and not its value; and as no other evidence than the possession of the instrument of writing sued on, had been given of the injury the plaintiffs had sustained- by the .non-delivery of the cotton, but only as to the value of the one hundred and seven bales, the plaintiffs eoitld not recover any damages; or if any, only nominal damages. This was refused.</p> <p>Evidence having been given, showing that the money stated in the bond to have been loaned to Johnson, by the plaintiffs, •was in the bills of the-said plaintiffs, associated under the style of the Real Estate Banking Company of Starkeville, Mississippi, purporting-to be bank notes, and in no other bills or money; and evidence having been given conducing to show, that at the time when the said Johnson received said bills, that the paper of the ■said Bank, was in market, greatly below the value of gold and silver coin. The defendants asked the Court to charge the jury, that if the value of. the cotton, as ascertained by the evidence, exceeded the money loaned, then the measure of damages, if they find for the plaintiffs, would be the amount of money loaned and the interest thereon. This charge was given, with the direction, that the jury was not to be governed by the value of the Starkeville Bank paper, as-shewn in evidence, but .the same which was expressed in the bond, with interest, should bo the measure of recovery, provided the value of the one hundred and seven bales of cotton exceeded that sum.</p> <p>The defendant excepted to all the charges given, and .to the refusals to .charge as requested, and now assigns the .same as error, as well as the refusal to exclude the contract from the jury under the fifth count of the declaration.</p> <p>insisted that the contract .of Johnson, was .to deliver his entire crop of cotton, .and not any specific quantity. If this is true, it was incumbent on the plaintiffs to aver and prove how much was made by him, and its value before they could recover more than nominal damages; (5 Term Rep. 522; 7Porter, 508; Chitty on Con. 20; -6 Porter, 344; 14 East, 160; 3 Vesey, 298; 9 ib. 325; 2 John. 357; 2 Pothier on Ob. 41; 3Comyn’s Dig. tit. covenant,3, E. Doug. 125; 2 Camp.56; 8 Peters’ 197; 2Bac. Ab. 77; Chitty on Con. 202; 5 Term, 291; 7 ib. 672 ; 8 Porter, 497; 1 A. K. Marshall, 422; l.J.J.Marshall,408; 3Dana,4S2; 5 ib. 324,140; 2 Camp. 156.; 2 ib„ 327; 2 N. H. 287.) The measure of damages, was the value of the depreciated money paid to Johnson. Story on Bail. 2 ed. 2;. Chittyon Con. 130; 5 Con.. N. S. Rep. 23; 1 Porter, 273; 6 Cowen, 628; 8 Peters, 197.</p> <p>insisted that the contract was to_ be construed according to the motives which induced it; that it was clear that the one hundred and seven bales was inserted for the purpose of fixing the minimum quantity of cotton to be delivered, and without such a construction, the plaintiffs would be exposed to the greatest hazard, either from the fraud or the negligence of Johnson. See Thos. Raymond, 464; 13 East, 63; 3 J. J. Marshal], 94; 6 Conn.. 249; 2 Gill &. John. 382; 11 Mass. 302.</p> <p>The measure of the damages was the value of the cotton, and the charge given, is more favorable for the defendant than is warranted by strict law. ' The money received by Johnson, might not, in market, be equivalent to gold and silver coin, but it certainly is in law, because the plaintiffs could have been compelled to pay their bills in gold or silver.</p>

<p>This cause comes here by writ of error from the Chancery Court sitting at Cahawba.</p> <p>IN April, 1835, the defendant in error filed his bill against the plaintiff'in error, Dillen Blevins and Fielding "Vaughan, alleging that on the 18th February, 1833, Vaughan, together with one George Rives, made their promissory note for a valuable consideration, by which they promised to pay to the complainant the sum of one thousand dollars, twelve months after date. That after the receipt of that note by the complainant, he went to Montgomery on a visit, and while there, fell in company with Taylor and Blevins, who invited him to play at cards; that he yielded to their solicitations, and Taylor won from him the note of Vaughan and RiVes, which he indorsed to him. The complainant further charges, that T.aylor and Blevins were professional gamblers, and combined together to induce him to bet, &c. That suit had been brought in the Circuit Court of Dallas, by Taylor, against Vaughan, as an in-dorsee of the note, for the use of Blevins, and prosecuted to judgment.</p> <p>The bill prayed that Vaughan be injoined from paying, and Taylor and Blevins from collecting the .judgment; that process of subpoena might issue; and that the money to be collepted, be paid to the complainant.</p> <p>Taylor' and Blevins, in their answers, admit that the former played at cards with the complainant; as he had alleged in his bill; that the note of Rives and Yaughan was bet by the complainant -on the game, and upon his losing the same, that he indorsed it to Taylor, the winner; that suit had been brought thereon, as stated by the complainant, and judgment recovered against Yaughan. But these defendants explicitly deny all unfairness, in the playing on their part; and conclude, by praying in their answer, the benefit of a demurrer to the bill.</p> <p>Upon the coming in of these answers, the defendants moved to dissolve the injunction, and dismiss the bill for want of equity ; which motion was granted, and the bill dismissed generally, at the costs of the complainant. From this decree, the complainant prosecuted a writ of error to this Court.; and the same was reversed, and the cause remanded.</p> <p>Yaughan then came in and answered the bill, admitting the-making of the note, and the recovery of the judgment thereon, as alleged ; and stating that after the dissolution of the injunction against him, he had fully paid and satisfied the-same.</p> <p>Upon the coming in ofYaughan’s answer, an order was made, at the instance of the complainant, requiring William S. Phillips, the attorney who obtained the judgment, at the suit of Taylor, to answer the bill within ninety days. Phillips answered, but stated nothing material, except the prosecution of the suit, the recovery of the judgment, and its payment after the dissolution of the injunction.</p> <p>In the record there is a bill, purporting to be a supplemental bill, filed by the complainant, on which there does not appear to have been any proceedings ; and which was voluntarily dismissed by him.</p> <p>The cause coming on to be heard on the original bill, and the answers filed, the Chancellor rendered his decree, dismissing the bill as to all the- defendants, except Taylor, and referred it to the master to ascertain and report the amount due on the note in question, for principal and interest. Whereupon, the master submitted his report, which was confirmed, and a decree rendered against Taylor accordingly — the reference, report and final decree being rendered at the same term of the Court.</p>

THIS was a suit on an administration bond, commenced by the plaintiff in error, against George Whitman, as principal, and the defendants in error as his securities in the penal sum of forty thousand dollars. The writ was returned, not found, as to Whitman, and executed on the defendants in error. To a declaration in the usual form, the defendants severally pleaded.

THIS was a rule against the sheriff of Mobile coupty, for ap alleged contempt in disobeying an injunction. The Chancellor discharged the rule and the plaintiff appealed.

<p>THE defendant in error brought an action of covenant against the plaintiffs in the Circuit Court of Talladega, on a sealed instrument in the following words, viz: “ On or before the first of January next, we, or either of us, promise to pay Sol. Spence, eight dollars per acre, for rent, for a lot of ground purchased from A. Q. Nicks, that Jesse Upton cultivated last year, supposed to be ten acres, more or less, the same being for value received; herein witness our hands and seals, this 3d of April, 1836.</p> <p>Giles Driver, [Seal.]</p> <p>J. D. Shelly, [Seal.]'’</p> <p>On the writ are the following'indorsements, viz. “ I acknowledge the service of the within writ, Sept, the 27th, 1837.</p> <p>J. D. Shelly.”</p> <p>■ « Came to hand the 25th September, 1837; executed on Driver, the 27th September.</p> <p>Wm. Blythe, Sheriff,</p> <p>By D. T. Blythe, Deputy.”</p> <p>A judgment final was rendered by default against the defendants, without the intervention of a jury; to revise which, a writ of error is prosecuted to this court.</p>

<p>Error to Baldwin Circuit Court.</p> <p>THIS was an action of trespass on the case brought by the plaintiff in error against the defendant in error. The declaration contains two counts; first, for the use and occupation of land; and secondly, the common count for work and labor and. merchandize sold and delivered. The defendant pleaded the general issue, with leave to give special matter in evidence.— This and another cause between the same parties, being consolidated, the jury found a verdict for the plaintiff for nominal damages, upon which a. judgment was rendered.</p> <p>A bill of exceptions taken during the trial of the cause, at the instance of the plaintiff, discloses that the plaintiff to maintain the issue'on his part, offered evidence of the leasing and occupation of the premises, the value thereof, &c. and the defendant offered in evidence an instrument of writing, purporting to be made between the plaintiff and defendant, by which the former agreed to lease to the latter a saw mill for one year; to give the defendant the .use of two slaves, &c..forthe sum of eighty dollars in hand paid, but which was not signed by the parties, but was proved by the person who wrote it, to be the agreement under- which thp leasing was made. To the introduction of this paper, the plaintiff objected, but the Court permitted it to be read to the jury. The Court charged the jury, the writing was in evidence before them, and that the hiring of the slaves by the year, was an entire contract, and that if the slaves had been withdrawn from the service of the defendant, by the fault of the plaintiff, for half the year, the plaintiff could not recover; to which charge the plaintiff excepted.</p> <p>The plaintiff prosecutes this writ of error, and assigns for error,</p> <p>1. Permitting the writing to go to the jury as evidence.</p> <p>2. In the charge given to the jury.</p> <p>cited Chitty on Contracts, 8 ; 3 Johns. JRep. 534 ; 7 ib. 470: 12 ib. 470; 4 Wheaton, 425 ; 1 Sumner, 218 ; 1 Ala. Rep. N. S. 423.</p>

Question referred by' the Circuit Court of Wileo-x county, as-novel and difficult. THE defendant was indicted for retailing, and convicted on an indictment charging the offence, in selling spirituous liquors, to wit: rum, brandy, whiskey and gin, in less quantities than one quart, to one James Gamble, and divers other persons, without first having obtained & licence from the County Court of Wilcox county, for that purpose. It- was moved in arrest of judgment: 1.

<p>1. Each count in a declaration- is considered as the statement of a distinct cause of action, and where all arc negatived by plea', the plaintiff is entitled* to recover, by proving the allegations of either.</p>

THIS was an action of debt, on a promissory note by the plaintiff in error, against the defendant in error. At a subsequent term, the defendant pleaded filis darrien continuance, that one Howe, had sued out an attachment against the estate of Hitt, the plaintiff, and had garnisheed the defendant ; that the attachment was sued out after this cause was commenced and returnable to the same Court.

<p>1. Where L owned five slaves and W owned three others, a*d it was agreed between them to work them on a plantation, for the joint benefit of L and W; and afterwards a contract was made by L, with the defendant, for services to bo performed by the whole number of slaves; h &W may join in an action for the breach of this cpntract, notwithstanuing ,.tho defendant was ignorant of any interest of W in the contract.</p>

<p>1. The plaintiff recovered a judgment at law against the defendant, to restrain the collection of which, an injunction was awarded at the instance of the latter, and the usual bond executed; the injunction being dissolved, the defendant’s land was sold under a,fieri facias, and the plaintiffbecame the purchaser thereof; an action being brought to recover the possession, on the trial the plaintiff offered in evidence, the record of thecase, in which the judgment had been recovered: Held, that the evidence was admissible, notwithstanding it was objected, that the deed from the sheriff, the decree dissolving the injunction, and the injunction bond were not produced.</p> <p>2. If one against whom an action is brought to recover the possession of land, would put an end to the suit, and prevent the recovery of damages, for a longer period of occupancy, he should make a disclaimer in open Court, or in some other manner, and yield the possession to the plaintiff.</p> <p>3. In an action to recover the possession of land, a verdict and judgment which conclude the matter in controversy^ may be aided by the description of the premises in the declaration.</p> <p>4. In an action of trespass to try titles, the plaintiff may recover damages beyond the sum laid in the writ and declaration.</p> <p>5. The quashing of a writ oí fieri- facias, after it has been executed, does nofr necessarily avoid all proceedings, which have been had under it.</p> <p>6. All reasonable intendments aro made in favor of the regularity of the proceedings of Courts of general jurisdiction; and Semble, that an appellate Court will not reverse a judgment on error, because at some term previous to tile trial, a judgment of non-suit was set aside at defendant’s cost, though in such case he might not be remediless.</p>

<p>Error to the Circuit Court of Mobile.</p> <p>THIS was a suit commenced by attachment by the defendants in error, against one George W. Gresham, in which the plaintiff in error, and one James Fitzsimmons, were summoned as garnishees, by the style of Gaines & Fitzsimmons. The sheriff returned that he had served the garnishment, both on Gaines and Fitzsimmons. Fitzsimmons appeared at the return and answered, which is inserted- in the record sent up, and is to the following effect: “ James Fitzsimmons, one of the firm of Gaines & Fitzsimmons, answers on oath, that he is indebted to the defendant, in the sum of six hundred and eighty-five dollars fifteen cénits.”</p> <p>Signed, James Fitzsimmons.</p> <p>At the same term, a judgment was rendered on the answer, against Gaines & Fitzsimmons.</p> <p>At the succeeding term of the Court, a judgment was obtained by the defendants in error, against the defendant in the attachment, and at the same term a judgment was rendered against the garnishees, as follows: “This day came the plaintiffs by attorney, and on motion of the plaintiffs, it is considered by theCourt, that the plaintiffs recover from the said Gaines surviving partner as aforesaid, the sum of six hundred and eighty-five dollars, fifteen cents, being the amount specified in their answer, filed at the Spring Term, 1839, of this Court, in obedience to a summons of garnishment, as in the case of the said plaintiff against the said George W. Gresham,” &c.</p> <p>From this judgment, Gaines has prosecuted this writ of error, and now rssigns for error:</p> <p>1. The rendition of judgment at the Spring Term, 1839. ,</p> <p>2. The Court erred in rendering judgment against the garnishees without it being shown that they were liable.</p> <p>3. The Court erred in rendering judgment against the appellant at Spring Term, 1840.</p> <p>4. The Court erred in rendering judgment twice for the same demand.</p>

<p>1. In proceeding by writ of ad quod damnum, to establish a mill, its location should bo ascertained, cither by the inquest or the judgment of the Court, with sufficient certainty of description to enable a surveyor to find the place designated. Nothing can be claimed under a grant to build a millin number seven, of township nineteen, of range twenty-five ; as the location is not sufficiently definite.</p> <p>2. Where a writ of a.d quod damnum was sued out on the seventh of September, 1836, returnable to the next term of the Orphans’ Court, (which, holds its sessions monthly) and no proceedings are had on it until the next February, it is to be considered as abandoned, and agranito build a mill, afterwards made on this writ, will not over-reach a grant made to another, who sued out his writ in December, 1836, and prosecuted it without delay, so as to obtain a judgment in January, 1837.</p>

<p>Writ of error to the Circuit Court of Marshall.</p> <p>THIS was a proceeding by petition and summons at the suit of the defendant in error, to recover the sum of two hundred and thirty-five dollars and eleven cents, due by a promissory note, made by the plaintiff and one Robert Dickey. The transcript, after setting out the petition, and the certificate of the clerk that the same was filed in his Court, contains a memorandum in these words: “And on the back of the aforesaid note, is the following credit: “Received March 8, 1839, seventy-nine 50-100 dollars. R. J. MANNING.”</p> <p>The process was executed on the plaintiff in error, and' as to Robert Dickey, was returned “ not found.” A judgment was rendered as follows:</p> <p>“ R. J. Manning v. Robert Dickey & Andrew Ice.</p> <p>Came the parties by attorneys into Court, and the defendant withdraws his plea by him heretofore pleaded, and now says nothing in his defence. It is, therefore, considered,” &c.</p> <p>Ice alone sues out a writ of error, and here assigns for error: First, that the judgment was rendered for more than was due. Second, that although both the defendants in the summons appeared., yet judgment is rendered against only one, without distinguishing which one.</p>

. The declaration contains a special count upon an agreement between the parties, and the common counts. The defendant below demurred to the special count of the declaration, which being overruled by the Court, the jury under the general issue, found a verdict for the plaintiff below..

<p>1. A Justice of the Peace has the power to supply the loss.of any paper relating to a cause pending before him.</p> <p>.2. A complaint in a suit for a forcible entry, is not insufficient, because it seeks to recover a messuage, with the appurtenances, known as the South half of Section twenty. Such a description of the land is ample; and the judgment, if a recovery is had, may be to recover the half section; as that is the name by which the messuage is known.</p> <p>:3. An allegation of seizen in fee in the plaintiff, and an assertion that the defendant entered and disseized, and put out the plaintiff from the peaceable possession of the lands described, is a sufficient averment of possession.</p> <p>4. The defendant in an -action for a forcible entry, can not introduce evidence to shew that the land in controversy is a part of the public domain, -for the purpose of contradicting the allegation of the plaintiff that he is seized in fee.</p> <p>■5. Nor is such evidence admissible to show that the plaintiff was not in possession at the time of the entry. The fact, if admitted, has a tendency to elucidate the question as to the possession, which is alone in issue.</p>

<p>Writ of error to the Circuit Court of Barbour.</p>

<p>Writ of error to the Cireuit Court of Autauga county.</p> <p>GARNISHEE process issued on affidavit of a stranger to the judgment under the provisions of the act of 1818. (Aikin’s Digest, 213, s. 1.)</p> <p>The garnishee appeared, and moved to quash the garnishment, because an execution issued on the judgment, had been returned satisfied, and the money paid over to the plaintiff before the process in this case was issued. The plaintiff then proved by the sheriff, that the property of the defendant in execution was levied on to satisfy the execution, which he after-wards returned ; that one Amos C. Baker, gave to the defendant a drafton the sheriff for one thousand dollars, then owing to him by the sheriff, and the defendant transferred certain notes to said Baker, as collateral security for the said draft. The sheriff took up the draft, and received the remaining portion of ■ the sum due from the defendant. He afterwards paid the plaintiff, the entire amount of his execution. It was also proved, that when the draft was given, that Baker requested the sheriff to keep the execution open. It was further proved, that the plaintiff afterwards assigned the judgment to said Baker. On these facts being disclosed, the plaintiff moved the Court, that the sheriff might be allowed to amend his return on the execution, to correspond with the facts stated; which was refused by the Court, and the garnishment was quashed. The' defendant excepted to this course, and at his instance, a bill of exceptions was signed and sealed. He now assigns for error, that the Circuit Court erred in quashing the garnishment; and also, in refusing to allow the sheriff to amend his return.</p>

<p>X. A promise in writing, by N and A to R, to discharge, pay, and satisfy certain debts due by R and A, as partners, is not within the act of 1818, autho riz-ing a discontinuance, when the writ is not executed upon all the defendants and therefore, a discontinuance in such case, as to one, is a discntinuance of the action.</p>

<p>Writ of error to the Circuit Court of Montgomery..</p>

This was a case agreed. The facts presented on the record are that the defendant in error is a baker in the city of Mobile; that a quantity of bread made by him for sale was condemned for being of less weight than required by the proclamation of the Mayor, made according to the ordinance of the Mayor and Aldermen — and fined twenty dollars.

<p>Writ of error to the Circuit Court of Tallapoosa county.</p> <p>ACTION of assumpsit on a written instrument, described at length in the declaration. By it, the defendant, in consideration of eighty dollars, bai-gained and sold to the plaintiff a certain tract, of Jand, and further agreed to make him a good title within twelve months; and in case he should fail to do so, then to pay the said plaintiff one thousand dollars. The attestation clause is in these words: Given under my hand and seal, this 24th day of November, 1836; and the signature of the defendant is attached without any scrawl or seal.</p> <p>The declaration avers, that at the expiration of the time stated, a deed was tendered to the defendant by the plaintiff, to be executed by the former, which he failed to do. It also avers that the defendant did not make title to the plaintiff according to the contract, or at any other time. The declaration concludes with a s,i,pei' se assumpsit for the sum named in the instrument, and lays the breach in the non payment of the money.</p> <p>The defendant demurred to the declaration; the demurrer wms sustained, and the plaintiff refusing to amend, judgment was rendered against him. He now assigns this judgment as error.</p> <p>cited act of 1839, P. P. 99, Matthews v. Zain, 7 Wheat. 164; Dash v. Vancliek, 7 Johns. 477; Bloodgood v. Cammack, 5 S. & P. 276; Golden v. Prince, 3 Wash. C. C. 333; Pearl v. Womack, 3 N. H. 473.</p>

<p>THIS was a trial of the right of property, originally tried before 'a justice of the peace of the county of Pickens; the claimant being there unsuccessful, she brought her case into the Circuit Court of that county. An issue was there made up, and the case tried de novo. On the trial, the presiding Judge sealed a bill of exceptions, at the instance of the plaintiff in execution.</p> <p>From the bill of exceptions it appears, that when the cause was called for trial, the death of Wilder, the original plaintiff, was suggested, and Elijah Murray, his administrator, made a plaintiff in his stead; whereupon the plaintiff moved the Court to quash the appeal bond, which motion was overruled, and he excepted.</p> <p>The plaintiff then called as a witness, A. PI. Morgan, who being examined by the defendant, stated that he had no interest in the event of the suit, of which he was aware; that he was the constable who levied the execution on the property in controversy; that after the trial of the right of property before the justice of the peace, and an appeal to the Circuit Court by the claimant, he had (as constable) upon being indemnified by the plaintiff, sold the property levied on; whereupon, the defendant moved, that Morgan be excluded asa witness, which motion was granted, and the plaintiff excepted.</p> <p>The plaintiff then proposed to read to the jury, the executions which had been issued by the justice of the peace, and levied on the property in question; to this evidence the defendant objected — her objection was sustained; and thereupon the plaintiff excepted.</p> <p>The plaintiff offered no further evidence, but proposed to take a non-suit, which being objected to, by the defendant, who insisted on a verdict, the Court overruled the proposition; whereupon the plaintiff excepted.</p> <p>The jui y returned a verdict in favor of the defendant, and judgment being rendered thereon, the plaintiff has sued a writ of error to this Court, and here assigns for error: First, the refusal to quash the appeal bond. Second, The exclusion of Morgan as a witness for the plaintiff. Third, the rejection of the executions as evidence; and Fourth, the refusal of the Court to permit the plaintiff to take a nonsuit.</p>

<p>1. In a suit in Chancery, in which the corporation of the city of Mobile is defen. dant, a service of the subpeena on tile Mayor of the city would be sufficient; but the return of the sheriff, that he had executed it on H. Chamber, laine, Mayor of the city of Mobile, is not proof that Chamberlaine is the Mayor.</p>

<p>1. In a summary proceeding by a Bank, the judgment entry, if the judgment js by default, must shew a legal title in the Bank to maintain the action ; and where, in such a judgment, the note is described as payable to Andrew Armstrong, cashier, or bearer, the legal title will not be presumed to be in the Bank, . unless the judgment entry shows the note to be endorsed to the Bank; or unless the judgment entry avers the note to have been made payable to the Bank, by the name and description of Andrew Armstrong, cashier.</p>

<p>'WILLIAM MAGEE, as administrator de bonis non, of James Goodwin, deceased, brought an action of assumpsit in the County Court of Biobile, against James Curry and Charles W. Gazzam, as partners under the style of James Curry & Co.</p> <p>In his declaration, Magee describes himself as administrator generally, and declares against James Curry and Audley H. Gazzam, as partners, &c.</p> <p>There was a general appearance and demurrer, which being overruled, the defendants pleaded non assumpsit.</p> <p>Upon the cause being called for trial, Wm. S. Paine, as administrator de bonis non of James Goodwin, deceased, was made a party plaintiff, instead of Magee.</p> <p>It appears from a bill of exceptions taken at the trial at the instance of the defendants, that after the general issue was pleaded, they craved oyer of the plaintiff’s letters of administration; and further, the case being submitted to the jury, and the plaintiff’s testimony closed, they moved the Court to charge the jury, “ that after the defendants had craved oyer of the plaintiff’s letters of administration, he could not recover against the. defendants until he had produced them in open Court;” which charge the Court refused to give, and the defendants excepted-.</p> <p>A verdict and judgment being rendered in favor of the plaintiff, the defendants prosecute a writ of error to this Court.</p>

<p>Error to the Chancery Court at Mobile.</p> <p>THE facts of this case sufficiently appear in the opinion of the Court.</p>

<p>Writ of error to the Circuit Court of Fayette county:</p> <p>ACTION of debt on a promissory note, made by the plaintiffs in error, payable to D. M. Johnson, and by him assigned to the defendant in error. The defendants pleaded nil debit and usury, on which issues were joined and verdict for the plaintiff.</p> <p>At the trial, the defendants gave evidence tending to show, that in April 1837, they and another person made a note for three hundred dollars, payable to D. M. Johnson, in December then next; for the purpose of .being sold to the plaintiff, who purchased it, for two hundred and twenty-five dollars. There was no evidence that he knew the purpose for which the note was made. The note sued on, was given to take up the former note, and was payable in January, 1839.</p> <p>On this state of facts, the defendants requested the Court to instruct the jury, if they believed the original note was made with the design stated, it was tainted with usury in the hands of the purchaser, although he was ignorant of the object for which it was made; and that the usury might be taken advantage by the defendants. These instructions were refused, and the jury was charged that the defendants could have no advantage if the purchaser was ignorant of the object for which the note was made.</p> <p>cited Faris v. King, 1 Stewart, 255; Metcalf v. Watkins, 1 Porter, 57.</p>

<p>TPIE complainants describing themselves as the heirs and legal representatives, with the exception of one, who describes herself as the widow and relict of William Bryant, deceased, filed their bill in April, 1837, on the equity side of the Circuit Court of Tallapoosa. The bill, after stating the relationship of the complainants to decedent, alleges, that he “ obtained and amassed” a very considerable real and personal estate, some of which consisted of lands in the State of Georgia, and the residue of nine half sections of land in Tallapoosa county, and a valuable house and lot in the*city of Tuskaloosa, together' with many bonds and other choses in action; besides twenty-four or five negroes, whose names &c. are particularly set forth. In addition to all which,'it is averred, that the decedent owned at the time of his death, a large stock of horses, hogs, cattle and goats; also corn, fodder and groceries, wdth household furniture, plantation tools, &c. besides about four thousand dollars in cash, which he had in his possession.</p> <p>The complainants further allege, that the decedent was not in debt at the time of his death, as they believe, more than five hundred and fifty dollars, and that he made no will of recent date, as the complainants believe. They are however informed and charge, that he made a will about ten years ago, by which, as they understand, “he disposed of all his property” to them; but they cannot undertake to state, with certainty any thing in relation to that will, as the same was taken from the decedent’s'house by the defendant, John H. Peters.</p> <p>It is further stated, that the complainants have heard it ru-moured, and some of them have seen a writing, which they understand some persons say, is the last will of the decedent. By that paper, a legacy of one hundred dollars is given to a negro woman named Sally, and the like sum to each of several other ne-groes: alegacyoftwo hundred dollars, to Richard Plunket, of the county of Tallapoosa; and the lands of the decedent, in the State of Georgia, are devised to four of the complainants, his children, to wit: J ackson, Nancy, Elizabeth and Luraney. And it is declared by that paper, that the decedent’s son, Needham, one of the complainants, “ shall be excluded from any share or interest in the said estate, beca.use of his ingratitude.” The residue of the estate of the decedent, is devised and bequeathed to one Robert F. Randall, an individual whom they have fleyer seen, and of whom they have never heard ; and consequently, believe that there is no such person.</p> <p>It is further alleged, that at the time of the decedent’s death, the complainants were all of full age, and on terms of friendship with him, with the exception of his widow; and they positively deny that he executed the pretended will, or if he did, it was at a time when he was labouring under some mental derangement, to fits of which he was subject, for some years previous to his death.</p> <p>The complainants also state, that one of them, viz: Needham Bryant, came from his residence in Georgia, to the late residence of the decedent in the county of Tallapoosa, for the express purpose of administering upon the estate he had left. Upon his arrival at the decedent’s residence, he found his papers locked up in a chest or bureau, and the premises in the possession of the servants belonging to the estate. That he examined all these papers with care, thr#e several times, the last examination being made in the presence of William Goldsby, John H. Peters and Richard Plunket, two of the defendants, but was unable to find any paper purporting to be a will, except a writing made about ten years previously.</p> <p>It is iurther stated, that the complainant, Needham, being in competent to manage the administration of his father’s estate, soon after his arrival in Tallapoosa, employed the defendant, John H. Peters, who is a counsellor and attorney at law, to aid him in the matter, and to obtain for him and in his name, letters of administration thereupon; and to this end, he executed a power of attorney, authorizing Peters to sign his, Needham’s name, to such bond as might be required to obtain letters of administration. All of which Peters did agree to attend to, and Needham returned to Georgia in a lew days, that he might move to Tallapoosa, and attend to the business of the estate. But instead of taking out letters of administration in the name of Needham, Peters, as the complainants “believe, in violation of the laws of the land, and without any authority, (unless it is from pretended letters of administration on said estate) assumed to himself, the right to manage said estate;” and before Need-ham reached Tallapoosa again, (which was after a few weeks absence,) Peters had advertised that all the slaves and other personal property of the estate would be sold on the 7th and 8th days of February, 1837. On the days appointed for the sale, the complainants all attended, and remonstrated against a sale of the property, but Peters declared that he would sell, and that a will of a recent date, made by the decedent, had lately been found, (which is the paper already described, and bears date the 26th September, 1836.) The sale'progressed and property was sold to the amount of upwards of fourteen thousand dollar’s, and bonds taken by Peters payable to himself.</p> <p>It is further charged, that Peters has had “ and still retains in his possession all the papers belonging.to the estate of the said decedent, together with the said old will, made about ten years ago, and the said paper purporting to be a late will of skid decedent.</p> <p>The complainants charge it as their belief, that Peters will waste the estate of the decedent, and they fear he will transfer the bonds, &c. due the estate to innocent persons; and that Peters’ estate is insufficient to matee good the loss whick the complainants would sustain thereby: besides, 'they have been informed and believe, that he intends to leave this State, without the intention of ever returning.</p> <p>It is further alleged, that Peters pretends to act in virtue of letters of administration, yet they have carefully examined the office of the clerk of the County Court, and find there, no evidence that letters of administration have been granted on the decedent’s estate; and they are informed by the Clerk that none have been granted, yet they are unable to deny with certainty, this pretence of the defendant, Peters.</p> <p>Among other prayers, the bill prays, that “Peters may be compelled to produce said writing, purporting to be said pretended late will, and also said old will, and that he answer and say by what means he obtained said papers and all the other papers, and by what authority he has acted, and does now act in the said matters; and that he fully and fairly account and exhibit a full and entire statement of all the property, choses in action, money and other things, which came into his possession from the said estate of said decedent; and that he state what became of all such matters, and that said Peters, further answer what has been done with the residue of the slaves and other property belonging to said estate, which was not sold on said 7th and 8th days of February, 1837.” And further, that a writ of ne exeat issue, forbidding the defendant Peters, from leaving the State; and that Peters be restrained and injoined from collecting, and the other defendants wTho were purchasers at the sale mentioned, from “ paying all, or any part of the purchase money to any person until the matters and things in this bill contained, are fully heard. And that your honor will cause such issue or issues to be made up between the rightful parties, which may be necessary to investigate the validity of said pretended late will; and that said Peters give a true state of the said sale; state who were the purchasers of every article sold, for what amount it sold, who were the sureties to the notes taken, and where said'notes now are; and that your hon- or will grant all such other and further relief which to your orators and oratrixes in the premises may pertain.” And lastly, that process of subpoena may issue, &c.</p> <p>Writs of Ne exeat and Injunction were awarded, in conformity to the prayer of the bill.</p> <p>Peters answered the bill, denying very fully, all professional, moral or legal impropriety in his interference with the estate of the'decedent, and asserting that he had been duly appointed an administrator thereof by the County Court of Tal-lapoosa, and that he had acted under the authority thus conferred. Other proceedings were had in the cause during its' pendency in the Circuit Court of Tallapoosa, which it is not material to notice; and upon the organization of separate Courts of Chancery, -the cause was transferred to the Court, directed to be holden at Talladega. At the term of that Court, holden in February, 1840. a motion was made to dismiss the bill for want of equity. The Chancellor thought that “ the whole subject of the probate of wills, granting letters of administration, appointing guárdians, revoking administration, decreeing distribution, &c. is committed to the County or Orphans Court but he conceded, that under our statute, where a will is admitted to probate, its validity .may be contested in chancery, at any time within five years from the date of the probate. He was of opinion, that it did not appear that the will in this case had been proved, or that Peters was acting under it, and dismissed the cause as one of which the Court had no jurisdiction.</p> <p>It appears from the record, that the counsel for the complainants, upon the cause being called, moved the Chancellor for leave to amend their bill in a very material respect; and, after the Chancellor had read his decree, submitted in writing, the amendment desired to be made. But leave to amend was denied by the Chancellor, on the ground that the “ motion came too late, and if granted, would make a new case”</p> <p>To revise the decree of the Court of Chancery, the complainants have sued a writ of error to this Court.</p> <p>' The Chancellor overlooked the object of the bill. He seems to have re-, garded it, as filed for the purpose of testing the validity of the supposed will of William Bryant, deceased. Had such been its object, the decree would be unobjectionable; for here, as,in England, until the will is admitted to probate, Chancery has ño jurisdiction to direct an issue of devisavii vel non; unless, perhaps, the parties interested, consent thus to test its validity, which some of the authorities maintain maybe done m equity, even before probate.</p> <p>The bill avers, that it was the intention of the next of kin' to administer on the estate of Bryant; that he employed Peters as an attorney and counsellor to aid him, and gave him a power of attorney to obtain letters of administration, and execute a bond in his name. That Peters instead of following the directions of his principal, in his absence took possession of all the property of the decedent — advertises and sells the same; alleging that he has found a will of the decedent, which justifies the proceeding, and which gives nearly all the estate to a person not related to the decedent, and whom the complainants believe has no real existence. That Peters claims to be an administrator, but the complainants-charge, if he have letters, they were fraudulently obtained, and no bond or other record evidence of his appointment can be found: And further, that he threatens to waste the estate to an extent beyond his ability to make good in damages. That he threatens soon to leave the State, to return no more,*&c. True, the bill alleges that the pretended will is void, prays a discovery &c. an account and distribution, that an issue of devisavit vel non be directed and for general relief.</p> <p>Peters divested himself of the character of attorney, and assumed to act in his own name, and in doing so committed a breach of faith, by which he should not profit. 1 Story’s Eq. 306. The Chancellor should have compelled him to account, although he may have had letters of administration. The heirs and distributees were all of age, the estate owed comparatively nothing, and they might have made a division and distribution among themselves. Gayle v. Singleton, 1 Stew. Rep. 566; Dobbs, et al. v Cockerham’s distributees, 2 Porter’s Rep. 328; Toller’s Exr. 480; 5 Bac. Ab. 447; 1 P. Wm’s 544 — 575; 2 Fonb. Eq. 322; Story’s Eq. 109.</p> <p>It is alleged, that the records of the’ County Court furnish no evidence, that administration was ever granted to Peters.</p> <p>This being the case, there could be no proceedings to revoke his authority either by appeal, or in the County Court.</p> <p>It is shown by the bill, that the property of the decedent’s estate was wasting through the agency of Peters, who was about to remove himself beyond the State. If equity could not relieve under such circumstances the complainants would be remediless; for before letters could be obtained and suit brought, the property or a portion of it, would be irreelaimably lost. The equity then, is defensible as a bill quia timel.</p> <p>Again: The jurisdiction ofchancery is undoubted, to recover the muniments of title; and such is in part the object of the present bill.</p> <p>It matters not whether Peters is administrator or not, equity will regard him as a trustee for the parties interested; will provide for the proper management of the estate, and an equitable distribution, and appropriation, of it. 1 Story’s Eq. 400; 2 Story’s Eq. 131; Fonb. Eq. B. 1, ch. 1, sec. 8, and note 9; 1 Bro. Ch. Rep. 271; 3 Bro. Ch. Rep. 624; 2 Atk. Rep. 213. The defendant, Peters, insists in his'answer, that the will of 1836 has been proved, and. may be seen on the records of the Orphans’ Court of Tallapoosa. The will is set up in bar of the complainant’s right to the estate of the decedent, and Peters insists on it in his defence; and thus its validity is drawn in question. •</p> <p>It is admitted, that upon authority, frafid in obtaining a will, forms an exception to the exclusive and concurrent jurisdiction of equity over frauds, yet the liberal views of Lord Hardwick, in Chesterfield V. Jansen, 2 Yes. Rep. 155, seem more consonant to reason. And so thinks Mr. Justice Story, 2 Com. on Eq. 422.</p> <p>Chancery, which looks mainly at the merits of a controversy, has been liberal in allowing amendments. In the present case, the necessity of the proposed amendment, was suggested by the answer, and it should have been* allowed to the complainants, to put in issue the new matter. Story’s Eq. Plead. Amendments have been allowed even after decree. 2 Mad. Ch. 289; Blake’s Ch. 195.; Bradford v. Felder, 2 McC. Rep. 170; Beauchamp v. Gibbs, 1 Bibb’s Rep. 483; Rose v. King,. 4 Píen. & Munf. Rep. 475'; 3 P. Wms. Rep. 357.</p> <p>True, more latitude is allowed where the amendment is as to parties, than where it relates to the subject matter of complaint. The amendment proposed to be made, seeks only to render the obligations of the bill more definite, and charge Peters as administrator cum testamento annexo, instead as executor de son tort. To drive the complainants to a new bill, would be productive of costs and delay to them, without a corresponding benefit to any one.</p> <p>Lastly: A bill should set forth such a state of facts as would give the Court jurisdiction ; but where chancery obtains jurisdiction for one purpose, it will retain and dispose of the whole case.</p> <p>There are cases where the defects in the bill may be aided by the answer; and it has been held, that where a defendant has fully answered, it is too late to object to the want of equity.</p>

THIS was a motion made in the Circuit Court of Barbour • county, by the defendant in error, against Morgan, as constable, and Mann and Ball as his sureties, upon a notice for failing to pay over, on demand, one hundred and thirty-nine dollars, ■ alleged to have been collected on four several executions, which issued from a Justice of the Peace, in favor of the defendant in error, against Samuel N. Brown and others, together with ten per cent, per month on the sum so…

<p>1. One of a firm of tavern keepers, has no authority to bind his co-parincr, by a note, of which the'consideration has no connexion with the business of the joint concern; and the want of such consideration may be shown in defence to an action, by a bona fide holder of the note.</p>

<p>1. The plaintiff declared on a written contract, made the 9th, July, 1838, to teach an English school for that year : the contract produced, was dated of that day, and was a stipulation to teach an English School/or one year, without stating when it began — Held, that the contract given in evidence was variant from that declared on, and consequently inadmissible.</p> <p>2. Semble, parol evidence is admissible to give direction to and apply a written instrument, but not to add to, or vary its terms.</p> <p>3. Where several persons employed an individual to teach school for them, stipulating if they dismissed him before the term of employment expired, that they would pay him for the time he was engaged — Held, that taking the scholars from the school under circumstances to show they were not to be sent back, indicated a willingness to dispense with the teacher’s services, and was tantamount to a dismissal-</p> <p>4. If the plaintiff relies upon an excuse for a failure to perform his contract, he must specially allege it in his declaration; but it seems, if he has been prevented from performance under such circumstances as entitle him to recover as much as he would, had he actually performed his contract, he may allege a performance generally.</p>

THIS was a proceeding by motion, in the Court below, by the Bank, against the plaintiffs in error, upon a note payable to Andrew Armstrong, or bearer, and upon issue joined, the plaintiff obtained a verdict and judgment.

<p>Writ of error to the County Court of Talladega county.</p> <p>ACTION of covenant. The declaration set out the agreement of the parties at length, and it is in these words: “This indenture made and confirmed this day, between Henry Taylor of the one’part, and Peter Pope of the other part, witness-eth: That whereas, Henry Taylor did sell to said Pope two certain tracts of land, lying and being as follows, to wit: The west half of the east quarter of section 5, township 21, range 4, containing eighty acres, more or less: Also, the east half of section 8, township 21, range 4, containing three hundred and twenty acres, more or less, all in the county and State aforesaid; and whereas, §aid Pope has failed to make payment to the said Taylor according to the contract made and entered into between them. Now, therefore, be it known, that the said Taylor guarantees to the said Pope, a possession of the said premises, until the 25th day of December next, and no longer, at which time I, Peter Pope, do agree to surrender to the said Taylor, the said premises, together with all the appurtenances thereunto belonging: Provided, nevertheless, that we are both to use our best endeavors to make sale of said lands, and if we should succeed in selling them for thirty-one hundred and fifty-two dollars, or more, said Pope is to receive the over-plus above the sum above specified. The liberty of making sale of the said laid, is limited to the time of giving possession, as above stated. Witness our hands and seals, this 24th August, 1838.” And it is signed and sealed by each of the parties.</p> <p>The declaration then proceeds to aver, “ that the said land in the said covenant described, had been previously sold by the defendant to the plaintiff, and the latter, in part consideration for the same, had paid a large sum of money, to wit: The sum of-dollars, and being unprepared to make the residue of the payment for said land, as had been stipulated between the parties, it was therefore agreed and stipulated between them, as by the covenant herein sued on and exhibited, will at large appear; that the plaintiff was to restore and return the possession of the said land so sold to him, to the defendant, on the 25th day of December next, succeeding the date of the covenant.— But by the substance and true intent, meaning and legal import of the proviso to the said covenant attached, the plaintiff was allowed, and the defendant was bound to use, each his best endeavors to make sale of said land; and if either the plaintiff or the defendant, should succeed in selling the same for the sum of thirty-one hundred and fifty-two dollars or more, the plaintiff was to receive the overplus, and whatever advantage might accrue or arise from such sale, over and above that sum, that being the amount still .due and unpaid to the defendant, of the whole sum originally agreed to be paid by the plaintiff to the defendant for said lands, and the said proviso being intended for the benefit and indemnity of the plaintiff, for the sum he had already paid, to wit, the said sum of- dollars aforesaid, and the lasting and valuable improvements he had made on said lands. And now the plaintiffin fapt, further avers, that the said defendant has not kept and performed his undertakings and stipulations in said proviso to the said covenant attached, but has broken the same in this, to wit, that he, the defendant, from the date of the said covenant to the said 25th day of December thereafter, did not use his best .endeavors to make sale of the said lands therein described, so that the same might command the said sum of thirty-one hundred and fifty-two dollars, or more, and that an overplus might accrue to the plaintiff-, over and above the said sum. And the plaintiff" further avers, that he, the plaintiff", using his best endeavors to make sale of the said lands, as by the said proviso authorised, did make an agreement and arrangement with one McPher- ■ son, at the county aforesaid, to sell him the said lands in the covenant described, for thirty-one hundred and fifty-two dollars, the amount specified therein, which said sum said McPherson was to pay over to the defendant, with an additional agreement on the part of the said McPherson, that the said lands should be still continued in his hands as such purchaser, free and open forisale, for the benefit of the plaintiff", and that the plaintiff" should be entitled to receive whatever amount the lands could or should subsequently be sold for, over and above the amount, with interest, so to be by him paid therefor. And said plaintiff" avers that the said lands could have been sold under such arrangements and agreements, for a much larger amount than was to be paid by said McPherson, to wit, for the sum of two thousand dollars more, to which the plaintiff would have been entitled, and of all which said agreement and arrangement with the said McPherson, and the extent to which plaintiff’s interest would be advanced thereby, the defendant had notice and perfect knowledge, and did in fact consent to ratify and confirm "the said sale and arrangement. But fraudulently and unjustly intending to injure and oppress the plaintiff, the said defendant did refuse to ratify and confirm said agreement and arrangement with the said McPherson, as made by the said plaintiff, though the said McPherson offered to ful-fil the same on the-day of-, 18 — , and thereby utterly defeated said sale, to the great injury of the said plaintiff; all which was between the date of the said covenant and said 25th day of December, at which time the privilege'of selling the said lands was to expire.</p> <p>And the plaintiff further avers, that the defendant could have sold said lands to divers individuals, if he had used reasonable diligence so to have done, to wit, at the county aforesaid, within the period in the said covenant specified, to wit, to-for the sum of five thousand dollars, and to-for the sum of five thousand dollars, which would have yielded an overplus for the benefit of the plaintiff, over and above the said sum of thirty-one hundred and fifty-two dollars, of 1348 dollars. Yet the said defendant fraudulently and unjustly failed to do so. — ■ By reason of which several breaches, the plaintiff says he is injured and has sustained damage to the value of four thousand dollars; whereupon he sues.</p> <p>The defendant demurred to this declaration, but his demurrer was overruled. He then pleaded,</p> <p>1. Actio non, because he says that he has well and truly kept and performed his covenant in all things, according to the true intent and meaning thereof, and hath not committed the breaches thereof, in manner and form as the plaintiff hath alleged, and of this he puts himself upon the country.</p> <p>To this plea, the plaintiff first demurred, and after his demurrer was overruled, joined issue to the country.</p> <p>2. And for a further plea to the first breach assigned in said plaintiff’s declaration, the said defendant says actio non, because he says that no sale of the said land was ever made, or could have been made, with the said McPherson, as therein averred, for the sale of the land to him, and the payment of the sum of thirty-one hundred and fifty-two dollars in money, by him, the said McPherson, to the defendant in manner and form as the said plaintiff has alleged, and of this he puts himself upon the country.</p> <p>To this plea the plaintiff demurred, and his demurrer was sustained.</p> <p>3. And for a further plea, said defendant says actio non, because he says he did use his best endeavors to make sale of the said land, as by the stipulations of the said covenant, he had undertaken and agreed to do according to the true intent and meaning of the said covenant, and of this he puts himself upon the country.</p> <p>The plaintiff demurred to this plea, and after his demurrer was overruled, he then joined in the issue.</p> <p>4. And for a further plea to the whole declaration, the said defendant says actio non, because he says, that at no time since the making of the said covenant, could the said land in the said declaration mentioned, have been sold for thirty-one hundred and fifty-two dollars in money, as the said plaintiff in his declaration hath alleged, and of this he puts himself upon the country.</p> <p>To this plea the plaintiiF replied, precludi non, because he . says, that after the making the said writing sued on, he did then and there, in the county aforesaid, between the time of making the same, find the 25th day of.December, 1838, make a covenant with Col. McPherson, for the'sale of the land mentioned in the writing sued on, of which writing he craves oyer, &c. for the sum of thirty-one hundred and fifty-two dollars, to be paid in cash notes, which said cash notes the defendant did then and there agree to receive of McPherson; and the defendant consented and agreed to said contract of sale, and for the further consideration, that plaintiff was to have the possession of the said lands, and the same were afterwards to be sold, and the plaintiff was to have the overplus of the said sale money, over and above the sum of thirty-one hundred and fifty-two dollars, and interest; which said contract, in all its stipulations, was then and there agreed to by the defendant, but afterwards the defendant, in the county aforesaid, did refuse to receive the said cash notes, and to satisfy the said sale; and this the said plaintiff is ready to verify.</p> <p>To this replication the defendant demurred, and the demurrer was visited1 back on his plea, which was held to be bad, and insufficient to bar the plaintiff of his action.</p> <p>5. This plea is the same as the fourth, except that the words, in money, are omitted.</p> <p>To this the plaintiff replied, that the land mentioned in the writing sued on, and in the declaration, could have been sold within the time mentioned, for thirty-one hundred and fifty-two dollars, as he has alleged in his said declaration, and this he is ready to verify.</p> <p>On this replication, issue was joined to the country.</p> <p>6. This plea is the same as the second, except that the words, in money, are omitted.</p> <p>On this plea, issue was joined to the country'; at 'least, such is the inference from the recital of the judgment entry, which states that issues were joined on a rejoinder, to a replication to this plea, but no such pleadings appear on the record.</p> <p>The cause was submitted to a jury on the several issues thus formed, and a verdict was returned for the plaintiff, on which judgment was rendered.</p> <p>In the progress of the trial, the defendant asked leave to withdraw his fifth plea, as the issue formed on the replication to it, was immaterial; the defendant tendered the costs of the motion. The Court refused to permit him to withdraw it, and he then excepted.</p> <p>In the further progress of the trial, the plaintiff introduced one McPherson, and offered to prove by him, that after the execution of the writing sued on and described in the declaration, the defendant agreed verbally with the plaintiff and McPherson, to receive notes, to be endorsed by the said McPherson, to the defendant, in substitution of that part of the written centract, to sell the land therein mentioned, for thirty-one hundred and fifty-two dollars; and that at the time appointed by them, McPherson was ready, and offered to endorse the said notes, but the defendant refused to accept them. To the introduction of this evidence, the defendant objected, but the Court admitted it, whereupon the defendant excepted.</p> <p>The plaintiff then offered to prove by McPherson, that some time after the agreement sued on, was executed, the defendant and the plaintiff came to the house of the witness, and it was thereupon agreed, between them and the witness, that the latter should pay over and indorse to the said defendant, good notes, for the sum of $3,152, and the defendant agreed that he would receive the same in lieu of the debt due to him from the plaintiff. ' These notes were to be endorsed by the witness to the plaintiff, under the understanding between themselves, to which the defendant was not privy, that witness was to have a return to the amount, with interest, and the defendant was to keep the land, or sell it for his own advantage. To the introduction and admission of this evidence, the defendant objected, but his objection was overruled: whereupon,.he excepted. t</p> <p>The plaintiff introduced a witness, and offered to prove by him, the value of the improvements made on the land by the plaintiff. To the admission of this evidence, the defendant objected, and on its admission by the Court, he then excepteed.</p> <p>The plaintiff then pi’oved by the witness, that on the said land, there was a comfortable house, and about seventy-five acres of cleared land. The plaintiff’s counsel asked what would be the yearly value of such a house to a man situated as the plaintiff was, and with such a family. To this question the defendant objected, but it was allowed to be asked; and the defendant excepted.</p> <p>The plaintiff then proved by another witness:</p> <p>1st. The yearly value of the premises.</p> <p>2d. The actual and entire value of the same.</p> <p>3d. That by the original contract of purchase, the plaintiff had contracted to pay the defendant $4,250.</p> <p>4th. That he had paid $1098 before the rescission of the contract.</p> <p>To all of this the defendant objected, as illegal and irrelevant, but it was admitted, and the defendant excepted.</p> <p>After the plaintiff had closed his evidence, the defendant proposed to demur to it, and accordingly drew up his demurer to the evidence, but the Court refused to compel the plaintiff to join in demurrer, to all which the defendant excepted.</p> <p>On this state of the evidence,- the County Court charged the jury:</p> <p>1.That if they believed from the evidence, that Pope had made an arrangement with McPherson, to settle the $3,152 in cash notes with the defendant, and that by this arrangement, Pope was to retain the possession of the land, and the arrangement was agreed to by Taylor; then if McPherson was ready and offered to perform his part of the agreement, and Taylor refused to perform his part, they ought to find for the plaintiff.</p> <p>2. That in this case, on a sale of the land, after the making of the covenant sued on, $3,152 or upwards, the parties were not restricted to a sale for gold or silver.</p> <p>3. If they believed the defendant, within the period designated by the covenant, could have sold the land for any thing more than $3,152, and that he failed or refused to do so, they ought to find for the plaintiff.</p> <p>4. That if from the evidence, they believed the land in 1838, was worth $4000, from this circumstance they might presume it could have been sold for more than $3,152.</p> <p>5. That the right of retaining possession of the lands by Pope, under the arrangement said to have been made with MPher-son, is a condition over and above the sum stipulated as the minimum of the sale.</p> <p>6. That the statute of frauds and perjuries has no application to the faets and testimony involved in this case.</p> <p>7. That under the covenant, Pope had a right to make a contract for the sale of the land, and if Taylor refused to receive his part, that is $3,152 in cash notes, it, (the sale) was as binding as if the land had been sold for gold and silver; that Pope had the right to receive the overplus above $3,152 in occupying the land, or in any thing else he might choose.</p> <p>The defendant excepted to these charges, and a bill of exceptions was signed and sealed at his instance.</p> <p>He now assigns, that the County Court erred in each of the several judgments, in overruling his demurrers to the plaintiff’s pleadings; in sustaining the plaintiffs demurers to his pleas; in refusing permission to withdraw his fifth plea under which an immaterial issue was submitted to the jury; in refusing to compel the plaintiff to join in the demurrer to the vidence; and the several charges as given.</p>

<p>1. A plea, puis darein continuance, is a waiver of, and substitute for all former pleas, and must allege matter of defence arising after issue joined.</p> <p>2. Matter which haa arisen ponding the suit, but before plea pleaded, is an original pica, pleadable with other pleas in bar, under the statute which allows a' defendant to plead several pleas. • "</p> <p>3. The words “ payment and set off,” or other brief designation of the defence, though signed by the defendant’s counsel, will not be regarded as a plea ; unless the plaintiff elects to treat it assuch-</p> <p>4. The plaintiff moved to strike out two of defendant’s pleas, and took issue on one; the defendant moved for judgment on the pleas replied to ; the Court did not decide upon either of the motions, and the case was tried on the issue— Held, that as the pleas were not mere nullities, though they were demurrable, the refusal to strike them out, on motion, or to put the plaintiff to bis demurrer, was an error, under our practice, of which the defendant might avail himself.</p>

<p>Error to the Circuit Court of Tallapoosa.</p> <p>THIS was an action of assumpsit, by the defendant in error, against the plaintiff in error, as administrator of William Bryant.</p> <p>In the declaration, the defendant is charged as being indebted to the plaintiff, for the work and labor, care and diligence of the plaintiff, as attorney and counsellor at law of the defendant, in prosecuting, defending and soliciting divers causes, suits and business, for the defendant, as administrator of William Bryant, and for fees due him in respect thereof.</p> <p>The second count, on a quantum meruit, charges the services to have been rendered for the defendant, and upon his retainer in and about the prosecuting, defending and soliciting divers other causes, suits, &c- connected with, and arising from his administration of the estate of William Bryant, &c. and being so indebted, &c.</p> <p>The defendant failing to appear, a judgment by default was taken, and writ of inquiry awarded, and the jury having returned a verdict in favor of the plaintiff, for nineteen hundred dollars. Judgment was rendered against the defendant de bo-nis propriis, from which he prosecutes this writ of error, and assigns for error,</p> <p>1. That the suit is against the plaintiff in error, as administrator, and the declaration does not show any liability of the estate.</p> <p>2. The judgment does not follow the writ and declaration.</p>

Writ of error to the Circuit Court of Mobile county. / ACTION of assumpsit.

THIS was a proceeding by scire facias, in the Orphans’ Court of Tuskaloosa, to revive an order or decree rendered by that Court against the plaintiff in error, as one of the executors of John Spencer, sen’r, deceased.

<p>1. The assignment of a judgment, is a transfer of the money to be collected on it, and when collected by the attorney of the original plaintiff, who has had notice of the assignment, is held for the use of the assignee.</p> <p>2. The action of assumpsit may be maintained by the assignee, for the recovery of the money, against the attorney, after notcie of the assignment, and demand of the proceeds of the judgment.</p>

Writ of error to the Circuit Court of Talladega. THE defendant in error brought an action of assumpsit against the plaintiffs, and set forth his cause of action in two distinct counts.

<p>Error to the Circuit Court of Barbour.</p> <p>THE Court below, on motion, discharged the bail which had been taken in a suit of the plaintiff in error v. one McMa-han, supposing that the bail was discharged by the act of 1839, abolishing imprisonment for debt. From which judgment the plaintiff prosecutes this writ of error.</p>

THIS action was commenced in the Court below, by the plaintiff in error, against the defendants, by writ of capias ad respondendum. As auxilliary to this process, the plaintiff on affidavit, obtained also a writ of attachment. The bond executed by him for the attachment, does not disclose the term to which the writ of attachment is returnable, and the attachment is made returnable to the first1 instead of the second Monday in July.

THIS was a bill in chancery, filed by the plaintiff in error against the defendants in error.

JOSEPH H. DENNIS, the defendant in error, brought suit against William Y. Fryer, in the Circuit Court of Pike county, and at the fall term, 1838, obtained judgment for fourteen hundred and forty dollars sixty cents, upon which a writ of fieri fiadas issued on the 8th Septémber, 1838, returnable to the fij;st Monday in Marfch next, after. On the ist|'da.y.of.

THE suit in the Court below was brought by the plaintiff in error, as assignee of one Wynne, against the defendant in error, on a note which fell due on the 1st January, 1840. The summons was issued by the clerk on the 5th February, 1840, and executed on the 8th of the same month. The defendant pleaded payment and set off.

THIS action was.commenced in tlie Court below, on motion, on a note made to the Bank by the plaintiff in error, for a loan of the notes of the Bank.

Writ of error to the Circuit Court of Tallapoosa county. ASSUMPSIT on a promissory note for fifty dollars. At the trial it was shewn, that in 1837, a clock pedler sold a clock to the defendant, who thereupon executed his two notes, each for twenty-five dollars. This clock pedler had no license to sell clocks.

<p>Writ of error to the Circuit Court of Lauderdale.</p> <p>THE defendant in error brought an action by petition and summons, on a bill single, against the plaintiff and one Henry L. Ward. The summons is endorsed as follows: “ I acknowledge service of this writ, Sept. 23, 1840.</p> <p>E. A. O’NEAL.”</p> <p>Test, Geo. W. Sneed, Clerk.</p> <p>The record does not show' that process was served on Ward. At the appearance term, a judgment by default, was rendered against O’Neal, without proving the acknowledgment of service by him, and without a discontinuance of the suit, as to Ward.</p>

<p>Error to the County Court of Tallapoosa..</p>

<p>1. In a case where property levied on is claimed, and after trial is subjected to-the payment of the execution, by the verdict of a jury, which also assesses-damages for the frivolous claim, it is irregular to render judgment against the claimant for the debt, damages, and costs, to be levied on thfe property subjected ; but such a judgment can not be reversed at the instance of the claimant, because he is not injuriously affected by the irregularity.</p>

Writ of error to the Circuit Court of St. Clair. The defendants in error declared against the plaintiff in as-sumpsit, on a promissory* note, dated the twelfth day of November, 1838, by which the latter, together with John R. Allen, who was not sued, promised to pay to the former, “ as administrators of the estate of Samuel J. Bradford, deceased, nine hundred and sixteen dollars and sixty cents,” twelve months after date.

<p>1. A presentment of a claim against an estate, within the time required by law, to the executor or administrator, is sufficient, without establishing at that time, its justice.</p>

<p>1. When a motion is made, in the mode provided by statute, against a justice of the peace, for a refusal to pay over money collected by him, in his official capacity, he will not be permitted to set-off costs due to him in other 'cases, for the payment of which the plaintiff may be liable.</p>

<p>Writ of error to the Circuit Court of Tallapooso.</p>

<p>Error to the Circuit Court of Tallapoosa.</p>

<p>1. When a statute gives.a summary remedy, by motion, and is silent with respect to the notice to be given to the defendant, he is entitled to reasonable notice. To support a judgment in such a case, it must affirmatively appear that such notice was given, and such notice will not be inferred from a statement on the record, that the parties came by thoir attornies.</p> <p>2. In the summary proceeding given by statute, in.favor of a security against his principal, to recover money paid on a judgment, it is necessary to connect the instrument, by which the security was bound, with the judgment paid by him.</p> <p>3. In such a case, if judgment is rendered for interest on the sum paid, the record must show the time when the security pai‘d the debt, if the liability is not ascertained by verdict.</p> <p>4. Query — Whether any summary proceeding can be had under the act of 1821, by the surety to a writ of error bond, when the judgment is rendered against him in the Supreme Court, inasmuch as the motion is to be made in the Court where the judgment was rendered.</p>

<p>Writ of error to the Circuit Court of Mobile.</p> <p>THE facts of this case are substantially the same as those of The Mayor, &c. of Mobile v. Eslava, 9 Porter’s Rep. 577, and Doe ex dem. Pollard’s heirs v. Files, at the last term.</p>

<p>Error to the Circuit Court of Tallapoosa.</p> <p>THIS was an action of assumpsit, commenced in the Court below, by the intestate of the defendants in error, against the plaintiffin error. Whilst the cause was pending, the plaintiff filed interrogatories, under the act passed in 1837, to provide more effectually for discoveries in suits at common law, which the defendant was called on to answer. The plaintiff’s attorney having made affidavit that the evidence of the defendant was material to the trial of the cause, the Court, on motion, made an order that the defendant file his answer to the interrogatories, within sixty days.</p> <p>At a succeeding term of the Court, the following judgment was rendered. “ This day came the parties, by their attornies, and it appearing to the Court, that interrogatories were filed for the defendant to answer, which he failed to do, therefore it is considered by the Court that the plaintiff recover of the defendant, the sum of-- dollars, the damages in the declaration mentioned, together with the costs in this behalf expended, &c.</p> <p>From this judgment, this writ of error is prosecuted, and the following errors assigned:</p> <p>1. The Court erred in rendering judgment by default final, without the intervention of a jury.</p> <p>2. The oath establishing the materiality of the interrogatories, should have been made by the plaintiff.</p>

<p>X. A note made negotiable and payable at Bank, is not subject to off-set in the hands of a bona fide indorsee, who has acquired it previous to maturity, although it has never been negotiated at the Bank where it is made payable.</p>

THIS was-a proceeding by notiee and' motion, in the County Court of Montgomery, at the instance of the plaintiff in error, against Reid,, as sheriff of that county, and his surety, for a judgment, for the failure of the former to pay over, on demand,, the money collected by him, on an execution issued from that Court, at the suit of the plaintiff, against Samuel Q. Hale.

THIS was a bill in Chancery, filed by the plaintiff in error, against the defendants in error. The bill charges, that in the early part of the year, 1836, a Stock Company was formed in Tuskaloosa, for the purpose of establishing a female school; that Alva Woods, was President of the Board of Trustees of said association.

<p>1. An attorney who has money belonging to a defendant in execution, is subject to be garnisheed, although the money in his hands has been collected by suit.</p> <p>3. When the answer of a garnishee states facts, from which an indebtedness to the defendentin the execution must be inferred, and that for a specific sum, a judgment may be rendered against him, although his answer contains no distinct admission of indebtedness.</p>

<p>THIS was an action of assumpsit, brought in the Circuit Court of Tallapoosa, for the recovery of a sum of money, due by promissory note. The cause was tried on the plea of non-assumpsit. On the trial, the plaintiff inquired of a witness, introduced by defendant, whether he believed in a future state of rewards and punishments, but the witness objected to answering the question, and his objection was sustained; and thereupon the plaintiff excepted. The jury returned a verdict as follows : “ We, the jury, find the issue in favor of the defendant;” on which the Court rendered its judgment, “ that the defendant recover of the plaintiff, the costs in this behalf expended,” &c.</p> <p>To revise the judgement of the Circuit Court, the plaintiff has brought his case here by writ of error.</p>

THIS was an action of debt, on a sealed instrument, for the payment of one hundred and thirty dollars, brought in the Court below, by the defendant, against the plaintiff in error. To a declaration in the usual form, the defendant pleaded specially : 1. That the bond sued on in this action, was given without any consideration, to wit: at the county aforesaid, wherefore, 2.

Writ of error to the Circuit Court of Autauga county. ACTION of trespass, for breaking the close and carrying away the goods of the plaintiffs.

Writ of error to the County Court of Morgan. THIS was a proceeding by notice and motion, at the suit of ■ the plaintiff in error, to recover of the defendant, the amount of a promissory note of which he was the indorser. The cause was tried on the plea of non-assumpsit. On the trial, the plaintiff excepted to the ruling of the Court.

<p>1. Where the instrument sued on is executed by one, who professes to be an agent, the plaintiff i s not required, under our statute, to prove the authority of the agent, unless that fact is put in issue by a plea, verified by affidavit. The statute applies as well to corporations as to individuals.</p> <p>2. The statute, making the instrument itself, unless questioned by plea, evidence of the debt or duty for which it wts given, there was no necessity on the part of the plaintiff, in the absence of such plea, to prove the consideration, or that the contract was within the scope of the legitimate objects of the corporation.</p>

<p>1. The City court of Welumpka is a court of limited jurisdiction, and has no authority to issue a certiorari toa justice of the peace.</p>

Writ of error to the Circuit Court of Cherokee. THE plaintiff in error declared against the defendant, in covenant, upon a writing obligatory, executed on the thirty-first day of July, 1835, for the payment of two hundred dollars, on or before the first day of January, 1837. The defendant craved oyer of the writing sued on, set it out in extenso, and demurred.

the Circuit Court of Limestone. THIS was an action of debt, brought by the defendant in error against the plaintiff in error, on a note executed by the defendant, and one Eldred Rawlins, not sued in the action. The defendant pleaded a set-off, with leave to give any matter in evidence which would constitute a good special plea in bar, upon which issue was joined.

Question reserved by the Circuit Court of Mobile County, THE defendant was indicted at the February term, 1841, for keeping and exhibiting a faro-bank. He pleaded, in abatement of the indictment, that it was found by a grand jury not legally constituted; verdict and judgment in favor of the State.

THE defendant in error, brought an action of assumpsit, against the plaintiffs, in the County Court of Dallas, on a promissory note, of the following tenor: Selma, July 18, 1838. Ninety days after date, I, John A. Cowles, as principal, and Uriah Grigsby and Henry Traun, as securities, jointly and severally promise to pay R. R. Nance, or bearer, five thousand dollars, value received, negotiable and payable at the Real Estate Bank of South Alabama, at Selma.

THIS bill was filed by the plaintiff in error, to rescind a contract, entered into between him and the defendant, Lehr.

<p>Writ of error to the Circuit Court of Coosa county.</p> <p>THIS suit was commenced in the Circuit Court, against James M. Logan, by motion, setting forth that he, as constable, received two executions in favor of the plaintiff, against Martin L. Daniel, on which the said Logan failed to make the money, as required by the mandate of the executions, which he might have made by the use of due diligence. The notice of this motion is dated the 13th February, 1839, but there is nothing in the record showing any service.</p> <p>At the March term, 1840, the death of ilje defendant was suggested, and a sci.fa. ordered to issue to John Logan, his administrator. This was'executed on the administrator on the 4th of July, 1840, and on its return, he was made a party to the suit, and the cause continued.</p> <p>At the next term, the plaintiff filed a suggestion, setting out the same cause of action as stated in the notice, and to this the administrator demurred. The Court overruled the demurrer, and the .administrator then pleaded the statute of non-claim, setting out his appointment as administrator on the 21st October, 1839 ; that publication was made according to law, and that the demand was not presented to the administrator within eighteen months, as required by law.</p> <p>The plaintiff demurred to this plea, and the Court sustained the demurrer. Issue was then joined on the suggestion, and a verdict returned for the plaintiff, on which judgment was rendered.</p> <p>The defendant now prosecutes his writ of error, and insists that the Court erred in reviving the suit, it not surviving by law, andalso in overruling the plea of non-claim.</p> <p>relied on the want of any statute, authorising the revival of such a suit.</p> <p>insisted that the securities of the constable would be liable for this misfeasance, and when a recovery was-had by the plaintiff against them, they, in their turn, could have an action against the administrator. If such a result could be thus produced, no good reason could be given for not permitting the plaintiff at once, to go against the administrator.</p>

This case comes here by appeal from the Circuit Court of Mobile. . IT appears from the record, that the plaintiff brought an action of covenant against the defendant, and another in the County Court of that county, for the recovery of a sum of money, which they had undertaken by deed to- pay him as rent for the occupancy of a house.

THIS action was assumpsit in the Court below, brought by the defendants in error against Thomas S. Clark and Augustus Law, partners, under the style of Clark & Law.

<p>Writ of error to the Circuit Court of Mobile county.</p> <p>ASSUMPSIT on a promissory note, with the common counts. The defendant pleaded non assumpsit, and the statute of limitations to the money counts; and the statute of non claim and plene administravit to all the counts. The plaintiff replied to the plea of the statute of limitations, that the cause of action accrued within six years next before the commencement of the suit; to the plea of the statute of non claim, that the debt sued for, was contracted in the States of Mississippi and Louisiana; and to the plea of plene administravit, that he exhibited his demand to the defendant as administrator, on the 28th day of April, 1836, at which time he had notice of the cause of action and demand, before the time of pleading his said plea; that on that day, and on divers other days between that and the day of pleading the said plea, divers goods and chattels, which were of the said intestate at the time of his death, of great value, to wit, of the value of the damages in the declaration mentioned, came to and were in the hands of tho defendant as administrator, to be administered, wherewith he could and might, and ought to have satisfied the damages aforesaid; and that this he, the said plaintiff, was ready to verify, &c.</p> <p>The defendant demurred to the replcations to the pleas of non claim and plene administravit, which demurrers were overruled. The plaintiff then discontinued his action as to the money counts, and thereupon came a jury, who being sworn to try the issue joined, returned a verdict for the plaintiff for $411 29, for which judgement was rendered, to be levied de bonis testator is, in the hands of the administrator, to be ad • ministered.</p> <p>The defendant prosecutes this writ of error, and assigns, that the Court erred in overruling the demurrers to the plaintiff’s replications to the pleas of non claim anhplene administravit; and also, in rendering judgement on the verdict, inasmuch as it does not ascertain what amount of assets were in the hands of the defendant to be administered.</p> <p>cited 1 Chitty’s Plead. 574; 2 Wms. on Ex. 1209; Booth v. Armstrong, 2 Wash. 301; Rogers v. Chandler, 3 Mum. 66; Eppes v. Smith, 4 Mum. 466; Siglar v. Play wood, 8 Wheat. 675; Fairfax v. Fairfax, 5 Cranch, 19; Ewing v. Peters, 3 D. & E. 686.</p>

Writ of error to the Circuit Court of Morgan. The plaintiff in error, brought an action of detinue against the defendant, in the Circuit Court of Morgan, for the recovery of a female slave, named Caroline, and her children, Jenny and Amanda. The defendant pleaded Non cletinet, and the statute of limitations, in short, by consent, with leave, to give any available special matter in evidence, and on issues to these pleas, the cause was submitted to the jury.

. TO an action of debt on promissory note, brought by the defendant in error, in the Court below, the plaintiff in error pleaded, that the note on which the action was founded, was-given for the north halves of two lots, in the town of Dadeville; that said lots were purchased from the Commissioners of Dade-ville, by one John C. Webb, and as a consideration of the sale, the payment for said lots was to be made before they could be obtained from, the Commissioners; that the…

Question reserved by the Circuit Court of Mobile county. THE defendant was indicted at the special Term of the Circuit Court of Mobile county, held in February, 1841, for keeping and exhibiting a faro-bank. He pleaded in abatement of the indictment, as follows: 1.

<p>1. Damages equal to the statute rate of interest, are recoverable upon a sum of money due for the use and occupation of a house, &c.</p>

ASSUMPSIT in the Court below, by the defendant, against the plaintiffin error, to recover the value of medical services.

<p>1. The functions of an executor do not necessarily cease with the final settlement of the estate, either w.ith the Orphans’ Court, or with the devisees or dis-tributees.</p>

<p>1. Where an attachment is sued out under the act of 1837, as ancillary to an action at law, the irregularity of the attachment or proceedings on it, will not authorise the reversal of the judgment in the action.</p> <p>2. And where, in such case, the record contained the entry of a judgment in favor of the plaintiff, it will be considered as having been rendered in the suit, and not on the assistant process.</p> <p>3. If the replevy bond executed on the levy of the attachment, can not, on being returned forfeited, have the effect of a judgment, an execution issued thereupon will be superseded, or enjoined, according as the objection may be.</p>

THIS was an action on the case in the Court below, by the defendant in error against the plaintiffs in error. The declaration contains four counts. The first and second counts charge the defendants as public ferry-men, and common carries, with the loss of a sulkey, the property of the plaintiffs. The third and fourth counts, are as follows.

Writ of error to the County Court of Montgomery county. ASSUMPSIT against Carpenter, -as drawer of a bill of exchange. The suit-was commenced by capias ad responden-dum, which was served; afterwards the plaintiffs sued out a writ of attachment pursuant to the statute authorising such process, and this was levied on certain real and-personal estate.

THE defendants in error, brought an action of debt against the plaintiff, in the Circuit Court of Marengo, upon the exemplification of a judgment recovered by them in the Superior Court of law, for the town of Petersburg, in the State of Virginia, on the 27th May, 1824.

<p>1. The notice published in a newspaper, that a debtor, would appear at aplace designated “ on Saturday the 28th July next,” and render a schedule of his property as an insolvent debtor, when in fact the 28th of July was Friday, held ' sufficient.</p> <p>2. The condition of a bond to take the benefit of the act for the relief of insol. vent debtors, is not forfeited because the justice of the peace will not permit the debtor to take the oath, or render the schedule required by law, if the ere. ditors have been duly notified of th e intended application.</p>

Writ of error to the Court of Chancery, for the third district of the southern division. THE bill alleges, that the complainant Calloway, in February, 1837, purchased from the defendants several tracts of land, which are specifically described; for which he executed his notes, with two other individuals as securities.

THIS was a proceeding by notice and motion, at the suit of the plaintiff in error, against the defendant, in the County Court of Montgomery, to recover of him, as the surety of E. N. & S. Peirce, the amount of a promissory note for the sum of “ twenty one hundred and fifty-one dollars and seventeen cents, with interest from date, under the second section of the act of June, 1837.” The note is dated the 23d September, 1837, and payable on “or before the first of June, 1840.”…

<p>Referrence of novel and difficult questions from the Circuit •Court of Mobile.</p> <p>THE defendant was tried, and found guilty of murder. At the trial of the cause, the prisoner moved the Court to set aside and quash the pannel of jurors summoned to try the cause, because it appeared that the jury had been summoned, and a list of the jury had been served on the prisoner by the coroner, and not by the sheriff; but it appearing to the satisfaction of the Court, that on Monday, when the Court was about to open, the sheriff of Baldwin county, was confined by sickness, and unable to attend the Court and execute its orders. It was ordered that the coroner of Baldwin, who was ' then present, do attend said Court, during its present term, and discharge the duties of sheriff thereof, which was ordered to be recorded on the minutes of the Court. The Court refused to quash the pannel, but considering the question one of novelty and difficulty, reserved it for the consideration of this Court.</p> <p>cited, the act of 1833, Aik. Dig. 96 § 2, empowering the coroner to act, when from any cause, the sheriff was incompetent to act.</p> <p>cited, the act of 1826, Aik. Dig. 389, § 10, imposing on the coroner the duties of sheriff, whenever that office became vacant, and insisted that the act was in conflict with the constitutional provision which devolves on the Governor, the appointment of sheriff, whenever the office was vacant, that the legislative provision was and void.</p> <p>He also maintained, that the act cited by the Attorney General, had no application to this case, because, here there was no vacancy, but a mere temporary inability to act.</p>

THE prisonor was indicted at the fall term, 1841, of the Circuit Court of Montgomery county, for the murder of one James Glover, and convicted of manslaughter. At the trial, certain evidence was introduced, conducing to prove that the prisoner assaulted and stabbed the deceased, by which he came to his death. Evidence was also introduced in behalf of the prisoner, conducing to prove that he fought in his own defence.

<p>This cause comes here by writ of error from the Chancery Court sitting at Cahawba.</p> <p>THE defendant’s intestate filed his bill, stating that he had but one child by his first marriage, who several years previous to the 8th of May, 1824, intermarried with Thomas Gibson; that his Wife and son-in-law, often persuaded and importuned him to convey his property to his daughter, and he as often refused, until on that day, being at a drinking house in the neighborhood of his residence, and under the influence of spirituous liquors, by the persuasion of his son-ih-law, he consented to execute voluntary conveyances of all his property, to his daughter, and her then and future increase. Gibson accordingly, while the intestate was in this state of mind, prepared two deeds, which were then executed by intestate; the one conveying his land, and the other his slaves and other personal property, to his daughter, and her then and future issue; which deeds were taken possession of by Gibson.</p> <p>It is alleged, that the intestate had but little property, yet the deeds did not reserve to him the property conveyed for the maintenance of himself and wife during life; he was consequently dissatisfied with what he had done, and went to Gibson’s in a few days, and not finding him at home, he informed Mrs. Gibson of his dissatisfaction, and asked her for the deeds, who replied, if he was unwilling for her to have the property, he could have the deeds; and accordingly,handed them to him. The intestate carried the deeds home with him, intending to burn them, and informing his wife of his intention, threw them into the fire; his wife made an effort to rescue them, and succeeded in rescuing one of them, which intestate, until within a few months before filing his bill, supposed to be so obliterated as to be illegible and unintelligible. It is further charged, that intestate’s wife immediately carried the deed to Gibson, and related to him the circumstances under which she prevented it from being burnt.</p> <p>It is then stated, that intestate’s first wife died on the 13th of August, 1828, leaving no other issue than Mrs. Gibson; and on the 11th of November, 1829,' he married a second wife, by whom he has five children. At the time of the intestate’s second marriage, he was in possession of the lands and slaves conveyed by the deeds of May, 1824, (except the slaves he had given to his daughter and son-in-law) and his wife believed him to be the owner thereof, and looked to them as a source for her maintenance. Intestate alledges, that he gave to his daughter, upon her marriage, and since, negroes and other property, of the value of twenty-five hundred dollars; among the negroes so given, were four negroes, embraced by the deed of May, 1824. On the 17th April, 1832, Gibson caused the deed for the slaves and other personal property, to be proved by one of the subscribing witnesses, and recorded in the clerk’s office of the County Court of Dallas, telling the witness not to make the registration publicly known.</p> <p>It is further stated, that after the second marriage of the intestate, and the birth of two children, and while he was still in possession of the land and slaves, except those given to Gibson and wife as aforesaid, the intestate was very sick, and called on Gibson to write his will, asking him if the deeds were still in existence, who affirmed, most solemnly, they were destroyed ; Gibson wrote the will, devising the land and bequeathing the slaves, except those given to him and wife, to the second wife of the intestate, and her issue. ■ That will, it is alleged, has been destroyed by intestate, and cannot now be exhibited.</p> <p>Mrs Gibson died previous to the drawing of the will, leaving five children under twenty-one years of age.</p> <p>When the intestate heard that Gibson had had the deed recorded, he spoke to him on the subject, but he refused to give him any satisfactory explanation.</p> <p>It is further alleged, that on the night of the third of November, 1837, all the negroes left the intestate’s house, and went into the possession of Thomas Gibson, his son Robert C. Gibson, and son-in-law, James Campbell, who refused to deliver them up on demand, asserting a right to hold them under the deed.</p> <p>Intestate alleges, that he is about sixty-seven years of age, infirm and unable to labor, and has but little property left, except the land, of which he apprehends an effort will be made to divest him at some future time.</p> <p>Thomas Gibson, Robert C. Gibson, James Campbell and wife, and the infant children of Thomas Gibson, are made defendants ; and the bill concludes with a prayer, “ that the titles to said land, slaves and other personal property, may be decreed to have been all along, and still to be in your orator, and that the said deeds may be set aside and cancelled, as having been obtained without consideration, and fraudulently, from your orator, and as being in fraud of the rights of his wife and children, and that said slaves be restored to your orator; and that the said Thomas Gibson, Robert C. Gibson and James Campbell, be decreed to pay what is reasonable and right, for the use of said slaves, from the time of their seduction and elopement, until surrendered up.” There is also a prayer for general relief.</p> <p>■A copy of the deed for the slaves and other personal property, is exhibited with the bill, from which it appears that the gift is to Mrs Gibson and her children born at the date of the deed, or thereafter to be born, without any reservation in favor of the intestate or any other person. Without attempting to recite the answers of the defendants, it may be enough to say, that the answer of Thomas Gibson is a denial of the equity of the bill, and a statement of facts going to exculpate himself from all impropriety of conduct.</p> <p>The defendants, Campbell and wife, and Robert C. Gibson, say, they believe that the deeds in question, were executed without any trick, fraud, &c., admit the detention of the slaves by Thomas Gibson, and conclude their answers with a general demurrer.</p> <p>The infant defendants answer in usual form, by their guardian, ad litem.</p> <p>Depositions were taken as well by the complainant as the defendants, but as the testimony is not contradictory, it will be quite sufficient to recite it substantially, so far as it need be noticed. It is shown that the deeds were made and executed by the intestate, at the time and place alleged; that the intestate at that time, was about fifty years of age, and though an habitual drunkard, was not then intoxicated, but was apparently, as intelligent as usual. No effort on the part of Gibson, was observed, to induce the execution of the deeds, but he wrote them by the intestate’s directions, who said, they were such as he desired ; that his wife had requested him to make them ; that they were not made to defraud, as he was not in debt, and they would save him the trouble of making a will, &c.</p> <p>Further: The intestate said, the deeds were his will, and as he had ordained it to be done, that he was to enjoy all the property during life, which latter remark was assented to by Gibson. The witnesses do not recollect that the slaves were bequeathed by the will which Gibson wrote for intestate some years before his death, but the land was thus disposed of. Although the intestate was not drunk when he executed the deeds, he made his mark instead of writing his name, assigning as a reason therefor, that his hand was too unsteady to write; and when the deed for the slaves was recorded, eight years thereafter, Gibson requested the subscribing witness, not to make it public.</p> <p>Upon the hearing, the Chancellor was of opinion, that the execution of the deeds was induced by the fraud, imposition, or undue influence of Gibson, or else the intestate misapprehended the legal effect of the deeds, and interest they conveyed to the objects of his bounty. Thereupon, he adjudged that the deeds be set aside and wholly vacated, the slaves be delivered up to the complainant; and that the master take an account, and report the value of the hire of the slaves, &c. since they went into Gibson’s possession; also, the names and description of the increase of the slaves, if any, &c. To review the decree of the Chancellor, the defendants have prosecuted a writ of error to this Court,</p> <p>cited 2 Kent’s Com. 451; 1 Chitty’s Prac. 827; 3 McC. Rep. 477; 1 Hill’s Rep. 316; 1 Story’s Eq. 235; 3 Eccl. Rep. 461, 254; 4 Dess. Rep. 518; 2 H. & Johns. Rep. 422.</p> <p>cited Kennedy’s heirs and ex’rs v. Kénnedy’s heirs, 2 Ala. Rep. 593; 1 Dess. Rep. 250, 300; 3 ib, 273; 3 Madd. Rep. 191; 2 H. & Johns. Rep. 292; 6 ibid. 435; 1 Munf. Rep. 527; 3 Cow. Rep. 572; 2 Yes. sr. Rep. -; 3 Yes. & B. Rep. 119; 5 Yes. Jr. Rep. 27, 67; 6 ibid. 267; 9 ibid. 292; 10 ibid. 209; 13 ibid. 136, 14 ibid. 273; 1 Madd. Ch. 224; 1 Cox’s Rep. 333; 1 Johns. Ch. Rep. 482.</p>

<p>1, Fraud, in a sale made by an administrator of his intestate’s effects, is a valid defence to the contract, when attempted to be enforced by an administrator de honis non of the estate.</p>

<p>1. A surety for the payment of the purchase money of land, may be entitled to subrogation of the vendor’s mortgage, in case of payment, but when this is con. ceded, it will not warrant him in resisting payment, on the ground that he can not have relief under the mortgage, unless the vendor relieves a prior in-cumbrance created by himself. A surety is bound in the same manner and to the same extent as his principal, and if the latter is satisfied with the purchase, it can not be rescinded by the surety for a defect in the security afforded by the title executed.</p>

THE appellees in April, 1839, filed their bill in the Chancery, Court sitting at Mobile, praying that a deed bearing date the 13th December, 1824, by which Wm. E. Kennedy, their ancestor conveyed to Joshua Kennedy, the ancestor and testator ofthe appellants, extensive and valuable real estate, in and contiguous to the city of Mobile, might be set aside.

<p>Error to the County Court of Pickens.</p> <p>ASSUMPSIT in the Court below by the defendant in error, against the plaintiff in error, to recover for work and labor done as an overseer.</p> <p>On the trial it was proved, that the plaintiff below, contract- . - ed with the defendant as an overseer for twelve months, for the sum of two hundred and seventy-five dollars and twenty bushels-of -corn; that he commenced about the 1st January, 1-839, and continued near eleven months, and that he quit his employer’s service without his consent. The defendant moved the Court to charge the jury, that if they believed from the evidence that the plaintiff contracted to serve the defendant as an overseer, for twelve months, it was an entire contract; and if before that period elapsed, he left the employ of defendant without his consent, or other good cause, the law was with the defendant. This charge the Court refused to give, and instructed the jury, that if they believed the plaintiff had labored faithfully for the defendant for nearly eleven months, he was entitled to a verdict for the value of his services during that time, to which the defendant excepted. The jury found a verdict for the plaintiff; upon which the Court rendered judgment, from which this writ of error is prosecuted.</p> <p>. The assignment of error is the refusal to charge, and the charge given by the Court.</p>

<p>1. Under the act of 1839, which allows the oath of the plaintiff to he receiyeef in suits upon accounts not exceeding one hundred dollars, the deposition of the plaintiff may be taken, under circumstances that will authorise the taking the deposition of any other witness.</p>

<p>1. A party indebted to otberd, in the sum of sixteen hundred dollars, or thereabouts, executed an absolute conveyance of real estate, m which the consider, alion expressed ivas eight thousand five hundred dollars ; afterwards, the pro» er.ty was sold under execution and purchased by the judgment creditor. The ' grantees in the deed, filed their bill against the grantor and the purchaser, stating that although unconditional in its terms’, it was intended as a mere security for what was due, and praying that they might have the benefit of it as such. ~ It was admitted that the deed would not authorise a recovery at law, but would be there considered as fraudulent. that being void for fraud in fact, it was void in toto, and could j\o,t be enforced to auy extent in Equity.</p>

THIS was an action of trespass to try title, by the defendant against the plaintiff in error. The plaintiff below obtained a verdict, and judgment was rendered thereon.

<p>Writ of error to the County Court of Mobile county.</p> <p>ASSUMPSIT for work and labor. The pleas pleaded by the defendants, do no appear in the transcript, but it does appear that a trial was had on an issue submitted to the jury.</p> <p>In the progress of this trial, the plaintiff, O’Brien, offered one Keho, as a witness, to whom the defendants objected, supposing him to be incompetent, on account of interest. To establish his incompetency, they gave in evidence an instrument in writing, signed by the witness and Joshua Kennedy, the defendants testator, by which it appeared that the witness had agreed to fill up a certain lot in the city of Mobile, in a certain manner, for a certain price, to be paid by Kennedy on the completion of the work. They also gave in evidence another instrument, signed by the witness and another person, which acknowledged the receipt from Kennedy, of the full price agreed to be paid by the former contract. This stated that the work was not completed, and contained an agreement to complete the job within two months after a certain barrier should be placed on the lot by Kennedy.</p> <p>It further appeared, from the statement of the witness, that some time after the barrier was finished, Kennedy called on the witness, and wished him to go on with the work. The witness said he had quit the business, and sold his carts, but could procure the plaintiff to do the work. Kennedy then said it was immaterial to him who did it; that the plaintiff agreed to do the work on the procurement of the witness, but that Kennedy was to pay the plaintiff, and not the witness; that Kennedy did agree and admit that he was to pay the plain tiff for the work. The Court overruled the objection to the witness, who was admitted to give evidence, and the defendant excepted.</p> <p>A verdict was found, and judgment rendered thereon for the plaintiff, which the defendants now- seek to reverse for the supposed error, in admitting this witness to give evidence.. . ;</p> <p>Other questions were likewise presented by the assignments of error, but were not pressed in the argument, and are. unnoticed in the opinion of the Court. . .</p> <p>cited 1 Phillips on Ev. 130; 3 Camp. 317’; 4 Mass. 653; 8 Cowen, 60 ; 1 Cowen, 535.</p> <p>He insisted, that as soon as the interest of the witness appeared, that it could not be removed by any statement made by him.</p> <p>cited 5 Ohio R. 424; 9 Cranch, 39; 5 Mason, 211; 12 Eng. C. L. R. 32; 16 John, 95.</p>

This cause comes here by writ of error from the Court of Chancery sitting at Cahawba. THE defendants in error filed their bill against Wm.

<p>Error to the Circuit Court of Pike.</p> <p>THE proceeding in this and forty-two other cases, which by agreement, are to abide the event of this, were motions before Jefferson Buford, a justice of the peace for Pike county, for failing to return executions received by him. The justice having rendered judgments against the constable.and his sureties, they prosecuted appeals to the Circuit Court of Pike, and the parties having submitted the cause to a jury, a verdict and judgment was rendered against ihe constable and his sureties, from which this writ of error -is prosecuted.</p> <p>From-a bill of exceptions it appears, that it was proven by the. plaintiffs that the executions in all the cases were duly issued and delivered to the constable, as set forth in the notice, and were not returned according to law. It was admitted by the plaintiffs, that all th.e executions were issued by one Richard Johnson, in the name of Buford, the justice wh.o rendered the judgments; that at the time of issuing the executions, Johnson was not an. acting justice of the. peace, but that Buford was, and rendered the judgments; that Buford, by parol, authorised Johnson to issue executions in all cases in which he.rendered judgments, and that by , virtue of that authority, these executions were .issued.</p> <p>The defendants, by their counsel, then moved the .Court to charge the jury, that the executions-having been issued by Johnson, who was not at the. time an acting justice of the -peace, were nullities, although Johnson was authorised to issue the same, in the name of the justice; that the justice could not delegate that authority to any other; and that the justice himself was alone authorised to issue executions. These instructions the Court refused to give; to which refusal the defendants excepted, and now assign for error, the refusal to charge as moved.for. - • .</p> <p>argued, that • the executions: not having been issued by the justice who rendered them, were nullities, and would not have afforded him any protection, if he' had executed them, and therefore he had a right to disregard ■ them. He also insisted-that the justice of the peace could not delegate his authority to another, at least by parol. In support' of these positions, he cited 10 Johns. 416;. 1 Wendell, 213;’ 6 ib.-276, 1 Cowen, 212; 9, ib. 61; 3 Cranch; 331; 1 Peters, 340. 1</p> <p>maintained that the issuance of an execution was a mere ministerial act, and that' an authority by parol, was- • sufficient. He cited Minor’s Rep. '48; 2 Ala. Rep. 68; ib. 74 % 4 Term Rep. 313; Story on Agency, 52.</p>

<p>1. When the condition of the writ of error bond/recites the seeing out of a writ of error, and the superseding of a judgment against two defendants, and the judgment is against one only, no summary judgment can be rendered against . the surety: because it, (the bond,) is not applicable to the case sent up, and ■ could not legally supersede the judgment in the court below;</p>

<p>THE appellant, who is a feme covert, filed her bill in the Court of Chancery, sitting at Tuskaloosa,. stating that about the third of November, in the year 1834, she intermarried with Alva Prescott, of the State of Mississippi; that after, her .marriage,- and-during coverture, her father (John Rogers) di.ed, in the county of Copiah,-in that State, having first made his last will and testament, which was duly proved and recorded in. the proper Court of that county, and letters- testamentary thereon, issued to Alva Prescott and-Wm. T. Scott, the persons designated as executors by the testator. The will, among other bequests, contains one as follows: “ I give my beloved daughter Mary Ann, wife of Alva Prescott, all the land owned by me in township ten, range seven, east, in section twenty-seven and twenty-eight, and nine, with all the appurtenances thereto belonging; also, with the exception hereafter mentioned, all my stock of cattle, horses, hogs, farming utensils, waggon and team, and household furniture, &c. And also, I give my said daughter1, Mary Ann, wife of the said Alva, twenty-two ne-groes, to wit: Alpha,” <fcc. “The property hereby given and •bequeathed to' my said daughter, Mary Ann, and to her heirs alone, if any there should be, and that of her body alone, and in default, the property hereby bequeathed, is to return to my brothers and sisters, and to Alva Prescott, in equal shares.”</p> <p>The complainant alleges, that the slaves bequeathed to her by the will of her father, were delivered to her, to be held to her sole and separate use, and have remained in her possession without disturbance or claim from any source, until a short time' previous to the exhibition of her bill. That by the bequest to her, a separate estate was created, and'had been so conceded by all concerned, until the time referred'to. That after receiving the possession of- the slaves as aforesaid, her husband, Alva Prescott, in the year 1887, removed into the Parish of Caddo, in the State of Louisiana, where the complainant, with the slaves in her possession as aforesaid', resided with him up to the period of his death, which took place nine or ten months after his removal. At the time of the death of her then husband, the complainant was the mother of a son, the issue of her marriage, named John Thomas, (who is still living with her, aged about five years) of whose person and estate, she was duly appointed “dative tutrix,” by the proper Court of the Parish of Caddo ” And further, administration of the estate of Alva Prescott, was granted to one Robert V.'Marye, of that Parish, who has not made final settlement thereof. " •</p> <p>The complainant also alleges, that, in August, 1838, in the Parish of Caddo aforesaid, she intermarried with Charles W. Lewen; one of the defendants,- and in February, 183&, removed with him to the county of Tuskaloosa, where they now reside; bringing with her, in her separate possession'and enjoyment, the slaves in question. That a few days previous to the exhibition of this bill, the sheriff of Tuskaloosa county levied an execution which issued from the Court of Chancery in favor of Wm. D. Stone, against Charles W. Lewen, on some of the slaves and'their increase, bequeathed to the complainant as aforesaid, and who are described as follows: “Clint, or Clinton,” <fcc.</p> <p>, It was alleged that the liability on which the .decree in favor of Stone was rendered, originated long before the defendant Lewen intermarried with .the complainant; notwithstanding which, the said Stone, with a full knowledge of the complainant’s claim to the slaves, (as she believes,) is desirous of subjecting them to the satisfaction of his execution.</p> <p>The complainant then insists that the slaves in question are not liable to the payment of the execution for the following reasons: 1. By the will of her father, they are bequeathed to her sole and separate use, and the ordinary marital rights do not attach to property thus circumstanced. 2. If the form of the bequest does not create a separate estate to her use,, then, the right to the slaves vested in her former husband, whose estate has not been settled, but remains in Robert Y. Marye as the administrator thereof, subject when settled, to be distributed to the complainant and her son.</p> <p>It is further stated, that by the laws of Louisiana, no interest whatever in the property of the wife, passes to the husband in virtue of the marriage; and if the complainant had no-separate estate in the slaves, then her possession was only as a trustee for Marye, the administrator.</p> <p>. The bill, after setting out the other usual formal parts, prays process of subpoena for Charles W. Lewen and Wm. D. Stone, and that they may answer; prays an injunction as to -farther proceedings on Stone’s execution against the slaves, and concludes as follows: “ The premises considered, may it .please your Honor to decree, that said Wm. D. Stone and his confederates, and all others concerned herein, be perpetually in-j.oined from intermeddling with, or any way disturbing the possession and enjoyment of the aforesaid slaves of your oratrix; and if your oratrix has mistaken the relief proper to be granted ■ her in the premises, your oratrix prays your Honor to grant .her such other and further relief in the premises, as to your -.Honor may seem right and proper, according-to the rules of equity,-and the course of this Court,” &c.</p> <p>An injunction was awarded ■ in conformity to the prayer of the bill. The defendant, Lewen, answered the bill, admitting its allegations and inferences, disclaiming all right to the slaves bequeathed to his wife by her father, and consenting, that if necessary, the same may be settled to her sole and separate Use. The defendant, Stone, demurred to the bill, assigning as causes of demurrer, that it is multifarious, repugnant, contains a misjoinder of causes of complaint, and does not disclose a sufficient ground for equitable relief.</p> <p>The cause came on to be heard on the demurrer, and the Chancellor being of opinion that the bill was multifarious, dismissed it without costs and without prejudice. To revise that decree, the complainant appealed to this Court.</p> <p>insisted,</p> <p>1. A bill may be predicated upon several claims-to the same property; some claiming the absolute interest; others the right of possession. Story’s Eq. Plead. 233, § 284; Yarick v. Smith, 5 Paige Rep. 160.</p> <p>2. There are sufficient parties before ■ the Court. The object of the bill is not to affect the title as to Marye; he was not an indispensable party, and being out of the jurisdiction of the Court, might well be omitted. Story’s Eq. Plead, 79, § 78-80; Gayle, et al. v. Singleton, 1 Stew’t Rep. 566.</p> <p>3. The right of possession- is sufficient to maintain a bill for an injunction. 2 Story’s Eq. § 882, 912, 914,928, 929, 956.</p> <p>4. If a bill professes to state several grounds for relief, some of which are good, and others not, the Court will entertain the, bill, but disregard the objectionable parts. Story’s Eq. Plead. 232, § 238; Yarick v. Smith, 5 Paige’s Rep. 160; Gayle v. Singleton, 1 Stew’t Rep. 566.</p> <p>A bill that alleges title in the alternative, is bad on demurrer. Story’s Eq. Plead. 392; 3 ibid. 208-9, § 244-5. . When a bill is filed with a double aspect, the grounds of relief must be. consistent witif each other. ■ 212-13, § 254.</p> <p>If the complainant claims as a distributee, and distribution be made after removal to'Alabama, then the marital.rights evf the husband will attach. This shows, that in this .view of the case, the complainant has no interest whatever, except the right of survivorship, if her husband dies, before distribution is, made.</p> <p>It was said by Lord Eldon, that where there is no marriage contract, the law of the.pctual domicil will govern, as-to all property, without distinction, whether acquired before or after a change of domicil. Lashley v. Hogg, cited in Robertson’s Appeal Cases, 4. See Story’s Conf. Laws, 150; Decouche v. Sa-vetier, 3 Johns. Ch. Rep.' 210-14-15.</p> <p>Where property is conveyed to a trustee, in trust for the sole and separate use of a married woman, and she survives her husband and marries again, she no longer holds the property to her separate use, but her whole interest, if it be personal property, vests in her second husband. ■ Miller v. Bingham, et a'L ex’r., 1 Iredell’s Eq. Rep. 423; Knight y.'-Knight, 9Cond. Ch. Rep. 199; Benson v. Benson, ibid. 201.</p>

<p>1., When the sheriff demands abond of indemnity from the plaintiff in execution, ■which is not given, he pray deliver the property levied on to the person from whose possession it was taken, but if he does not do so, but retains it, the lien continues.</p> <p>2. Where, upon the refusal of the plaintiff in the senior execution to indemnify the sheriff, on his demand, the plaintiff in a junior execution gives the necessary bond, the levy of the senior execution is discharged, and the lien transferred to the younger execution. ' ■</p> <p>3. Property levied on may be sold after the return day of the execution, by the consent of the defendant, without a venditioni exponas.</p> <p>4. Upon a motion to the Court to direct the application of money in the hands of the sheriff, if there is no controversy about the facts, there is no necessity foi impannelling a jury.</p>

<p>1 To support an indictment for putting out an eye of an individual,"under the statute of mayhem, it is not necessary where the injury is done in a sudden" conflict, that the defendant should have formed the design previous to the conflict; it is sufficient if the defendant maliciously and on purpose does the act in pursuance of a design formed during the conflict.</p>

<p>1. The complainant alleged, that she was to hold certain slaves, which she claim, éd under a, 4eed of gift, agreeably to a statute of Mississippi, for the protection ' of the-property of married women. The terms of the act were uot more par- . tieularly recited, but it was alleged that the slaves were given by the deed, to be held by the complainant to her separate use, benefit, &c. during life, and to the heirs of her body thereafter — Held, that the bill was not demurrable for the omission to state the provisions of the statute referred to, the more especi- . ally asthe interest set up by oomplainant was alleged to be an estate to her separate use.</p> <p>9. Where the separate estate of the wife is levied on to pay a debt of the husband, in default of any other remedy, a sale may be stayed by injunction:</p> <p>3. Where a bill for an injunction is not regularly verified by affidavit, and its allegations are denied upon information and belief only, the injunction should not be unconditionally dissolved for the insufficient verification, but the Chancel- ' lor should direct that the complainant, or some one acquainted with the facts, should verify the bill in a reasonable time, and in default thereof, the dissolution be absolute.</p> <p>4. Where the allegations of the bill for an injunction are positive, but the answer is a mere denial of them, upon information or belief, the answer does not war- • rant the dissolution of the injunction. . .</p>

<p>1. Under the act of 1841, ‘‘ the more, effectually to enforcS the performance of the duties of sheriffs,” it is not necessary, in a motion against the sureties of the sheriff, to show that the sheriff has been notified of the intended motion.</p> <p>2., A judgment is never arrested for extrinsic matter, notappearing on'the record itself. . . ■ ; . - - ’ '</p>

<p>Writ of error to the County Court of Sumter county.</p> <p>ACTION of debt on a sealed note, by Armstead, for the use of Hair, as the administrator of the estate of Hugh.Torbert.— The defendant plead nil debit, set-off and and. payment. At the trial, he proposed to prove a set-off, by his own oath. The set-off was an account for one hundred dollars.. The Court refused to allow him to do so, and he excepted.</p> <p>He now prosecutes this writ of error, and assigns the same matter as error.</p> <p>insisted, that although the statute only names ■ the plaintiff as the party permitted to be sworn, yet the defendant is equally within the mischief intended to be remedied. . ' ■</p>

<p>1. When a plea begins as an answer to a part of the declaration, and is in. truth nothing more, the plaintiff cannot demur, but must take judgment by nil dicit, for the yart unanswered. But if a plea profess in its commencement to answer more than it afterwards answers, and the part unanswered is material, and of the gist of the action,, the whole plea is bad on general demurer.</p> <p>2. Where, from an inspection of promisory note, it is doubtful whether the party making it, acted for himself or as the agent of another, parol ev. idence is admissible to remove the doubt, and show the character of the trans - action.</p>

<p>. Motion for affirmance of a decree of the Chancery Court at Montgomery. •</p>

<p>1. A note, payable to J. E. or bearer, made previously to the enactment of the slat, ute of 1837: — Meek’s Supplement. 108 — ¿improperly sued in the name of one who holds it by delivery without any indorsement from J. E. the payee.</p>

THE defendant in error, brought an action of assumpsit against the plaintiffs in the Circuit Court of Barbour, on a pro-missary note, of the following tenor.. “ $1836..66-100: Six months afterdate, we or, either of us promise to pay Alexander McColl, Judge of the County Court of Barbour county, or bearer, eighteen hundreed, thirty-six 68-100 dollars, value received. • ; February 4, 1839. Daniel McKenzie, John Cuheie.” The’defendants pleaded: 1. Non Assumpsit. 2.

<p>Error to the. Chancery Court at Talladega. , ■</p> <p>THIS was a bill in chancery, filed by the plaintiffs in error, against the defendant in error. The bill charges, that the plaintiffs in error, kept a public house at the Talladega Springs, and employed the defendant, to assist in the management of, the house, for his .board, lodging and his . bill at the bar, and deposited with him eight hundred dollars, to buy provisions for the house; that defendant remained four or five months, but. from intoxication, was unable to attend to business, and, was.dismissed; that defendant did not expend more than three -hundred dollars, for provisions, and is indebted to complainants for the remaining five hundred dollars.</p> <p>That defendant instituted suit against complainants, in the Talladega Circuit Court, for work and labor; and complainants being residents of Wilcox county, at the return term, pleaded that fact in abatement of the suit. That complainants summoned their witnesses and sent the patents, the evidence of their freehold in Wilcox, but the witnesses did not attend, and the patents miscarried; that complainants from sickness, were unable to attend the Court at Talladega, and in addition, had an important suit in Wilcox county, which required their attention at the same time; that complainants attorney, not knowing of the materiality of the absent witnesses; could not obtain a continuance, and that the defendant unjustly obtained a judgment against them, which he is seeking to énforce by execution.</p> <p>That if they had been able to make their defence at law, on the merits it consisted of matters of account, which a jury could not properly adjust. That the defendant is utterly insolvent, and has left the country.</p> <p>The prayer of the bill is for an injunction to the judgment at law, that an account be taken between the parties, and for general relief. The'Chancellor dissolved the injunction, and dismissed the bill. To reverse which, the plaintiffs have sued out this writ'of error. ■</p> <p>insisted that this • edse was distinguishable from French v.'Garner, 7-Porter,-553, ■and cited 9 Danna, as a case in point. He also insisted, that the bill was filed for an account, which gave the Court jurisdiction: 8'Porter,‘63. • • . -</p> <p>contended, that there was no equity in the bill, and'nó «excuse shewn for not defending at law. He cited 7 Porter 583; 1 Ala. Rep. 351.</p>

<p>I. A Judge of the County Court has no authority to award a writ of certiorari, return" able into the Circuit Court, in v, suit for a forcible.entry and detainer.</p>

<p>1. ,Tii¿,dec]aration'described a judgment’feQovéj-ed'át - — in the county of Richmond, in the State of New-York, by-Ánd - befaré the Supreme Court of . Ju|igSttire for said county and State; the exemplification produced, was a judgment rendered by the Supreme Court *qf jiuáiqfiture of the pepple of'the State ófNew-Nork, at the city of Albápyít-.flE¿fdj',--that the record offered in ■evictóí’tucj was not‘admissible under the plea-of nul tiel recor.d.</p>

<p>, Error to the Circuit Court of Cíárke. ;</p> <p>THIS was an action of detinue, by the defendant in error, as administrator of his wife, to receiver .of .the plaintiff in error, certain slaves.. ■:</p> <p>Upon the pleas of the general.issue,, and the statute of limiT tatións, the plaintiff obtained a verdict and judgment.</p> <p>On(the trial of the cause, a biff of exceptions was taken by the .plaintiff in error, from which' it appears that the plaintiff offered in evidence a copy of the record of a will of John Finlay, deceased, in the Court of Ordinary'of .Greene county, in the State'of Georgia, through which he claimed the slaves in the present action. To which the defendant objected. The pro-1 bate is as follows: \ ;</p> <p>Georgia, Greene County,</p> <p>Court of Ordinary, 30th September, 1803.</p> <p>The within will and testament of John Finlay, deceased, proven in open Court, by the oaths of James Wood and John Wood, subscribing witnesses thereto,'who declared they s$w the same signed and acknowledged by him, the said John Fin-lay, in his proper senses, and saw E. Park and John Buckner, subscribe their names as witnesses with themselves.</p> <p>Thomas Carleton, Clerk.</p> <p>Recorded 30th September, 1803.</p> <p>Thomas Carleton, Clerk.</p> <p>Georgia, Gkbene County.</p> <p>I, .Thomas W. Grimes, Clerk of the Inferior Court when sitting for ordinary purposes, for the county and State aforesaid, do hereby certify that,the foregoing exemplification corn tains a true copy of the last will and testament of John Finlay, deceased, taken from the records of my office, Book D, pagó fifty-four.</p> <p>Given under my .hand and seal of office, this 17th June, 183G.</p> <p>Thomas W., Grimes, Clerk.-</p> <p>Greene Court of Ordinary.</p> <p>. Georgia, Greene County.</p> <p>-I) Thomas Stocks, Chairman of the Inferior Court, when sitting for ordinary purposes, for the county and State aforesaid, do hereby certify, that. Thomas W. Grimes, whose signature appears attached to the foregoing certificate-is at this date, the acting clerk, of the Court of Ordinary, for the county of Greene, and State aforesaid, duly appointed and commissioned, and whose .attestation as such, is .intitled to all due faith and credit, his certificate in due form, and signature genuine.</p> <p>Given under my hand, this 17th day of June, 1836.</p> <p>Thomas Stocks, Chairmain</p> <p>Inferior Court, Greene Co. Ga.</p> <p>The Court overruled the objections to the- will and probate, and permitted it to be read to the jury., .</p> <p>The plaintiff was "also permitted to prove, though objection was made by defendant’s counsel, that John Dean, senior, the father of plaintiff’s wife, and through whom defendant claimed, had on'kwo occasions, in 1817, or 1818, mid in the year 1823, on the ¡morning of the marriage of .plaintiffwith the daughter of Deal}, declared that Hannah and her children, were the property ofjhjs daughter, given to her byber.’gr&nd-father.</p> <p>The defendant then offered to prove,,by witnesses, that John Deaiik,' senior, was in the habit of deél^flng’that he gave the ne-grod|.;in controversy, to different members of his family. Sometime^ he would say, it was the property- of one of his children, andat other times, that it belonged tp, a-different one, and was in the habit of making such contrary .[declarations of gifts, for twenty or thirty years before his death, but that he never would or did give any of his children possession of his negroes, in pursuance of such-promises; which pro;of being objected toby plaintiff’s counsel, was excluded by Court ; to all which the defendant, by his counsel, exce.pte4j.:Rjt.4 now assign for error.</p> <p>Other testimony was also offered-, and Ejected, but not being notiA in the argument of coi$|6eI,,. oj¡|Íy the Court, is not</p> <p>contended that there was no evidence that the will had ever been:admitted to probate; that the action on it in Georgia, was the mere act of the clerk; that this was the mere copy of a copy, and therefore, not evi-dencei and cited Aik. Dig. 250, § 22; 2 A. K. Marshall, 555; 1 Ala. 529; 4Philips’ Ev. 1065, 1137; 3 Littel, 479; 2 Cain, 363; 3 Rand. 167 ; 4 Wend. 543; Bulier N. P. 246 ; 3 Starkie, 1682. As to the declarations of Dean, he cited 1 Philips’ Ev. 231; 2ib. 585; 1 Starkie’s Ev, ,50; 15 Johns. 292.</p>

<p>\ Writ of error to the Circuit Court of Shelby County. "'</p> <p>ASSUMPSIT on a promissory noté, signed by Tulane and Meshaux, payable to one Pitts, and by him ássigned to Har- . rison.</p> <p>' The defendanfs.'.pleaded non assumpsit, and other pleas, on which issues were joined, and submitted'to'a jury, whoretuni-ed a verdict for the defendants, on which judgment was ren- ‘ dered. ■</p> <p>At the trial, the defendants called a witness, who swore that the note sued on, was given by’the defendants to the witness, as the agent of Pitts, the payee," for the right of said Pitts’ cotton cultivator, for a certain section of country7, and offered to "prove by this ,'witness, the declarations made by him to the defendants, at the time of the purchase. The evidence of these declarations was offered for the purpose of-showing'that" a fraud was practised on the defendants at the said purchase.</p> <p>This;witness was asked by "the plaintiff’s counsel, whether ' there was not a written power of-attorney under which he acted as the agent of Pitts. The witness ‘answered, that there was such a power, but he had left it’at his residence. Thereupon the plaintiff objected to this witness stating what declarations were made by him as the agent of .'Pitts, unless this power of attorney was produced. i</p> <p>This objection was overruled, and the witness allowed to swear to such declarations. The plaintiff excepted; and this matter is now assigned as error.</p> <p>cited Paley on Agency, 235, 245; note d.; Fisher v. Campbell, 9 Porter, 210; Nixon v. Hyseratt, 6 J. R. 58; Gibson v. Colt, 7 ib. 390; Fenn v. Harrison, 3 T. R. 757; Jeffrey v. Bigelow, 13 Wend. 522; Perkins v. Washington, In. Co. 4 Cowen, 659.</p> <p>cited Story on Agency, 126, notes 1, 2; McGill v. Hauffman, 4 S. & R. 317; Phillip's’ Ev. by C. & H. 168, ét sup. 180, 604.</p>

<p>THE testator of the defendants in error, brought an action of assumpsit, in the Circuit Court of Tallapoosa, against the plaintiffs, on a. promissory note, of which the following is a copy. ‘‘Six months after date,, we, or either of us, promise to pay Sinnort Gilder or bearer, the sum of one thousand do.llars, for value received, this 14th day of March, 1837.</p> <p>Catlin, Peeples & Co.”</p> <p>The writ was executed on Peeples only,, but the -plaintiff de-dared against him, together with Henry Catlin and John D. Saunders, as surviving partners of Joseph C. Heard. Peeples alone pleaded,</p> <p>1. That the note was-not made by him, nor by any one au-thorised by him.</p> <p>2. That he was not-a member of the firm of Catlin, Peeples & Col at the time the mote was made, and that it is not his act.</p> <p>3. Non assumpsit.</p> <p>All of which pleas are verified by affidavit.</p> <p>Pending, the suit, Gilder .died, and it was revived in the name of his executor and executrix, and tried by a jury, who returned a verdict in favor-of the plaintiffs.</p> <p>On the trial, the defendant excepted to the ruling of the pre • siding Judge. From, the bill of exceptions, it appears that a witness, offered by the plaintiffs, testified that the note in suit, was signed by Henry Catlin; that Catlin and Peeples, and perhaps other members of the firm, informed him, that the firm was composed of Henry Catlin, Rufus D. Peeples, (the defendant) John D. Saunders and Joseph C. Heard. That this information was given him ip,1835, and that-he. afterwards understood Heard was-dead. but when he died, or when the firm was dissolved, witness could not state; and further, that it was an ordinary mercantile concern, dealing in goods, wares and merchandize. Upon this evidence, the plaintiffs offered to read the note to the jury, when the defendant offered a'witness to prove, that Heard died before the date of the note, but the Court rejected the evidence, stating that it would be competent for the defendant'to offer the witness after the plaintiffs had gone through with their evidence; and that plaintiffs might read their note to the jury. Thereupon the defendant excepted, &c.</p> <p>The defendant then proved that Joseph C. Heard died about the 15th February, 1837, and offered to prove that Henry Cat-lin, after the death of Heard, executed new notes in the name of Catlin, Peeples & Co. which notes Peeples had refused to recognize, or pay; to the proof of this latter fact of disaffirmance on the part of Peeples, the plaintiffs'objected, and their objection was sustained. Thereupon the defendant excepted, -&c.</p> <p>The defendant having closed his evidence, the plaintiffs introduced a witness, who stated, that Peeples informed him in June, Í837,- that the firm of Catlin, Peeples & Co. was dissolved, as to talking new contracts, fita the'survivors had the right :to-usé the firm name to borrow money to. Settle old debts, and to settle up its old debts; and that he expected'the money "Catlin had borrowed from the Witness, was obtained for that purpose. The witness further stated, that the plaintiff’s testator resided in the neighborhood of the' place, where.the firm had carried on their mercantile business'. To the introduction of this proof, as to the borrowing of money, the,making a note to the witness therefor, and the statements of Peeples," the defendant objected; but his objection was overruled; and thereupon he excepted, &c. , • • ■</p> <p>The plaintiffs introduced another witness,- who. testified, that between the 20th 'of January and the first of February, 1837, he was informed by Henry Catlin, that he had made a contract "with one Edwards, a hog-drover, on behalf of the firm of Cat-Tin, Peeples &'Co. for the purchase of a number of-pork hogs. Witness resided where the -firm had done business; and was employed by Catlin to pickle the pork for the firm. ■ Witness, "under a written order from Catlin, sold some of the pork for the "firm, and in addition, made other sales on behalf of the firm.; 'the remainder-of the pork, together with the goods of Catlin, Peeples & Có. on hand, were sold at auction in June, 1837, in the presence of Peeples. The note in'suit, was given for money "borrowed of Gilder, by Catlin, at or about the' time of .the loan, the latter stating it was to pay for the pork .purchased as afore-‘sáíd. The witness further stated-, that -the firm dealt in dry goods- and groceries, traded with' the Indians, and were in the habit bf trading in- any thing on which they could make money; but did not bny lands nor mules, nor did he know of any pork having been purchased by them, except as already stated.— 'That Catlin, Heard and Saunders' were the active co-partners in the firm; that- Peeples resided sbme -miles distant, and was not actively engaged in the concern; that he does not- know ■whether-the defendant knew any.-thing about the purchase of the pork, the -borrowing of the money, or giving of the note; nor does he know that Peeples ever derived any benefit-from the' sale of the-pork.- ■ The pork was purchased before the death of'Heard,hut:thb'-money was-borrowed, and-the-note made after that event. •>'The defendant-objected to the'evidence as to the purchase of-the-pork, the borrowing of the money, and the-declarations of Catlin .at the time it was borrowed, as. to the manner in which it-was to be appropriated; it not appearing that Peeples was privy thereto; but the Court overruled the objection, remarking that the plaintiffs had laid a predicate for such evidence, by proving the admission of Peeples, that, the survivors had authority to use the firm name to settle its old .debts. Thereupon, the defendant excepted,&c.</p> <p>The plaintiff then introduced another witness, who testified, that in the spring of 1838, she . heard a conversation between ■Saunders and the defendant, in which the former remarked, that he had just received a dun for money due from the firm to old Mr. Catlin, of Wetumpka, and that there, was, a debt due to old Mr Gilder, for money borrowed, when it could be obtained no where else; that old Mr Gilder was an honest man, and ought to be paid. In reply, the.defendant said, “ we must do the best we can — it ought to be paid.” Here the plaintiff closed his evidence.</p> <p>The defendant then offered the original articles of co-partnership, by which Catlin, Peeples & Co. became associated in business, and proposed to prove their execution by the subscribing witness; these articles provided for dealing in merchandize, at a place therein designated: he proposed further to show, by proof aliunde, that the purchase of pork by any member of the firm, was without the scope of the partnership dealings. . All which was rejected, on the ground that the testimony last adduced, was rebutting evidence, in answer to that previously offered by the defendant, and according to the practice of the Court, the introduction of additional proof,.was not permissible. Thereupon, the defendant excepted, &c.</p> <p>The defendant then proposed to withdraw from the jury, the evidence offered by him, and to demur to the plaintiffs. evidence, but.the Court decided that the plaintiff at- this stage of the proceeding, could not be compelled to join in a demurrer — that the defendant could not withdraw his evidence; and the Court would not. allow him to do so. And thereupon, the defendant ■ excepted. . ■</p> <p>The defendant then prayed the Court to instruct the jury,-</p> <p>1. That having denied, on oath, the making of the note in suit, it was incumbent on the plaintiffs to prove, his liability, and on failure of such proof, the jury should find for the defendant on the first count, which charge the Court gave with this qualification, that it was necessary for the' plaintiffs to make out a prima facie case.</p> <p>2. That the death of one of the partners put an end to the partnership, and if the jury believed from the -evidence, that the note mentioned in the first count was executed after the death of one of the firm, without the consent of the defendant, he is not liable'thereon; which charge the Court gave, with this qualification, that if the surviving partners consented to the giving of such a note, or had subsequently ratified, or recognized the act, they should find for the plaintiffs ; for in such ease, the note would be good against the survivors, and void as to the representatives of the deceased partner.</p> <p>3. That if there was no other consideration than such as was liquidated and settled by the giving of the note in controversy, the plaintiffs mnst recover on the note, or not at-all, unless he has offered to cancel or return if>; which charge the Court refused to give, but instructed the jury, that the plaintiffs' might give the note -in evidence, under the common counts, and recover upon them. ■ ■ ' "</p> <p>4.- That to make the defendant liable for a contract made by Catlin for the purchase of hogs, it was neeessary •that the' plaintiffs'should show that the putfdhase of such-stock came within the scope of thé partnérshíp dealings of the late firm of Cat-lin, Peeples & Co. ór that it-was assented to, by the defendant; which-charge the Court refused to give-as prayed; but charged, that if the plaintiffs had proved a general partnership, the jury mig-ht presume the purchase of hogs was embraced, and if such a partnership had been proved, it was incumbent on t}ie defendant to show, that the purchase of hogs did not come within the scope of its dealings. To the refusal of the Court to charge the jury as prayed, and to the charges given, the dé-fendant, excepted, &c. And judgment was rendered in favor of the plaintiffs against the’defendants.-1The judgment entry recites, that the parties came by their attornies,' and this is the only evidence'in the record of the appearance of the defendants not served with process." From the judgment of the Circuit Court, a writ of error is prosecuted to this Court.-' • -</p> <p>insisted that the partnership of Catlin; Peeples & Co. was dissolved by the death-of Heard, and that the note in suit being made by Catlin-, imposed no liability upon the defendant, Peeples; that the evidence tdduced to show-his assent to the making of the note, and that he derived a benefit from it, was too indirect and indefinite to authorise its admission.</p> <p>Again, a judgment is rendered against all the parties declar-?d against, though Peeples only was served with process, and appeared. Such a judgment cannot be sustained. " -</p> <p>The charges of the ’ Court are not free from objection;• and -the fourth charge prayed, should have been given. It merely affirms the familiar principle, that a partnership, cannot -be bound by the act of one of its members, not within, the; scope of its dealings. • •</p> <p>The judgment shows that the parties came by their attornies, and the presumption is, .that-all who are declared against, appeared. ■ .. ;</p> <p>The note being'made in the partnership name, it will be intended that it was given for a partnership debt. Chitty on Bills, 617; Yallettv. Parker, 6 Wend. Rep. 619. . . .,</p> <p>The admissibility of evidence is to be determined by the Court, its sufficiency by the jury. Clifton- v. Grayson, 2;Stewi, Rép. 412; Bell v. Rhea, Conner & Co. 1 Ala. Rep. N. S. 85. ;</p> <p>- The admission of the defendant’s testimony after- the plain: tiffs had closed their rebutting evidence, was a matter-within the discretion of the Court, and consequently, not .revisabje.— James, et al. v. Tait,- et al. - 8 Porter’s Rep. 476; Towns v> •Riddle, 1 Ala. Rep. N- S. 694; 2 Phillips’ Ev. C.-& H.’s notes; 712,717. • .</p> <p>The Circuit Court properly refused to compel the.plaintiffs to join in a demurrer to the evidence. Alexander v. Fitzpatrick, 4-Porter’s Rep. 405. , -,</p> <p>The note was evidence under the money-counts., Hightow,.er v. Ivey, 2 -Porter’s Rep. 308; Hunley' v. Willis, Lang &Co. 5 ibid. 154; Gillespie, et al. v. Wesson, 7 ibid. 454.. - ;</p> <p>• The admissions of a partner, though not a. party,to the suit,-is "evidence as-to .joint contracts. against any .other partner,. as well after the determination .as during the existence of the partnership. Chitty on Bills, 617.</p>

<p>On points novel and difficult, from the Circuit, Court of Mobile. ■</p> <p>THE defendant was indicted in the Court below, for a libel, and pleaded in abatement, that one of the grand jurors, by whom the bill of indictment was. found, was not -a citizen of the United States, but was an alien, and a subject.of the Queen of Great Britain. ' Isstie being taken on the plea, it appeared in evidence, that the jnror was born in Ireland, and came to the United States, in the year one thousand eight hundred and nine, being then over.the age of twenty-one, and came to Louisiana, in the year one thousand eight hundred -and eleven, and remained there, until the year one thousand, eight' hundred and fourteen, at which time he came to Mobile, in the now State of Alabama, where he has lived ever since; and there being no proof that said juror had ever been naturalized, under any act of Congress, or in any other manner than as above stated, the-Court directed the jury to find the issue for the State; but considering the question novel and difficut, reserved it for the revision of this Court. ' • •</p>

<p>1. When no'special venue is disclosed in an action on a bill of exchange, tjis place of drawing will be inferred, on demurrer, to be that stated in the map, ' gin of the declaration.</p> <p>-2. When a-verdict is found, the correctness of its amount can not be enquired • into upon a writ of error. ■ . ¡</p> <p>.3. inland bills of exchange parry damages, when protested for nonracceptance, by virtue of the'statutes.</p> <p>■4. The entering óf a nolle prosequi to the last count'af a declaration, does not • carry with it , the breaqh of the contract, which is: assigned at the end of the declaration. .■' ,</p>

Writ of error to the County Court of Madison. 1 THE plaintifFin error, declared against the defendant in debt upon the exemplification of a judgment alledged to have been recovered against him and one Benjamin G. Sims, as partners, in the Circuit Court of Hinds county, in the State of Mississippi. The defendant pleaded, 1. Nul tiel record. 2.

' THIS action was commenced before a justice of the peace, by the defendant in error, and judgmfent having beenrendered in her favor, was -carried by the plaintiffs in error to the County Court of Chambers, where the plaintiffs in error pleaded that the plaintiff below was a feme covert, to which she replied that her husband had abjured the realm before the’note on. which the action is founded, was; given, and has ever-since re-maimed abroad.

<p>1. Lands of the debtor, within the county, are bound by the rendition of a judgment, and not merely from the teste of the execution, or the time of its receipt by thfe sheriff.</p>

<p>1. The defendant addressed a letter to C, (one of the plaintiffs) at the city of Mobile, requesting him to send him goods according to a bill annexed: C and his co-plaintiffs were doing business as partners and commission merchants in-the city of Mobile, and not otherwise, and the' defendant resided in the' interior, about two hundred miles distant. The plaintiffs sent the goods, but without a bill of lading or letter; the agent of the defendant, as well as his principal supposing, that they were sent by C individually, and that to him alone the defendant was accountable — Held, that the plaintiffs were entitled to recover in an action for goods sold and delivered.</p>

<p>1. The resignation of an executor or administrator will not abate a suit then pending. If there be more than one, the suit will proceed in the name of or against those remaining; if he is the sole representative of the estate the suit will be revived in the name of his successor.</p> <p>2. A plea that the defendants were not joint administrator and administratrix Is frivolous.</p> <p>3. An estoppel must, in general, be pleaded; if offered in evidence, the jury are not precluded from finding the truth of the case.</p> <p>4. Upon the trial of an issue whether the defendant was administratrix at the time the suit was commenced, the record of the Conniy Court showing the time of the appointment, is evidence of a higher grade, than the statement of the time of her appointment, jn the bond executed by her as-administratrix.</p>

the first Distrist of the Southern Division. THE object of the bill, in this case, is to obtain satisfaction of sundry debts due from the defendants intestate, and secured by a mortgage of the steam-boat Jefferson, .executed by him in Kentucky, in the year 1837. When the mortgage was executed, the intestate was a resident of Mobile, in this State,.to which place he removed the steam-boat, ■ and continued to' run it until his death, which took place in 1839.

<p>1. A promise io accept a bill thereafter to be drawn, for goods to be sold to a third person, is binding in law, and an action will lie for its breach ; although at the time the promise was made, the amount of the bill, or precise period when it was payable was unknown: and it is no objection to a bill drawn and presented upon the faith of such a general promise, that ithad four months to run, and that interest was calculated on the account, for goods sold — Such being the usual course of dealing, and the drawee making no objection when the bill was presented for acceptance.</p> <p>2. Where documentary proof is offered for the purpose of discrediting a witness, its relevancy should be made apparent, or it may be rejected.</p> <p>3. Where a bill presented to a drawee for acceptance, was at his request, left with him, a notice to his executors, after his death, to produce it on the trial of an action against them, for the refusal of their testator to accept, will authorise the admission- of parol evidence of its contents, although they deny it ever came to their possession.</p> <p>4. The death of the defendant, JK, was suggested of record, and a scire facias directed to issue to his representatives, without naming them, or characterizing them as executors or administrators; a sci, fa. issued, describing ELW and WRH as executors, and was served on them, but they were not formally made parties. The cause, in the margin of the judgment, is thus stated— “ Robert Geddes & Co. v. Joshua Kennedy’s ex’rs,” and the entry recites that the parlies came by their attornies, and thereupon came a jury, &c ; the judgment is, that the plaintiffs recover against the defendants, to be levied of the goods, &c. of J K, dec’d, in the hands of R L W and W R H, his executors, to be administered : Held, that the judgment and its recitals was a waiver of all info: mality, and equivalent to an express assent to be made defendants.</p>

THIS was an action of assumpsit brought in the Court below, by the plaintiff it) error, against the defendant, op an open account. To a declaration in the usual form, the defendant pleaded as an off-set, an open account due from the plaintiff to him, to which plea the plaintiff replied, that the account pleaded as an off-set, did not accrue within three years, &c., upon which replication iss.ue was joined.

Writ of error to the Circuit Court .of Jackson,-county. ASSUMPSIT to recover asufp of money 'due from the defendants ,to .the plaintiffs, for the freight and .lighterage of a quantity of cotton shipped by a flat-bqttomed boat, from Cross’s Landing, pp .the Tenpessee .river, to New-Qrleans. The declaration contained a special count on the contract, and two of a general character- The defendants pleaded non,as$umps,vt and set-off.

,THJE-defendants in error, brought an action of debt, against :the plaintiffs, on a penal bond in the sum of. one - thousand dollars. ■… Held: andffrmly bound unto the plaintiffs, in the penal sum of one thousand dollars, .for the payment of which, well and truly to be made, theybound,themselves, their.heirs, executors. &c. jointly and.save.rally, &c. conditioned, that whereas, there had been an attachment at the suit of said li-bellants, levied on the steam-boat Fox, which…

ASSUMPSIT in the Court below, by the plaintiff in error, • against the defendants in error. • The writ was sued out by the plaintiff against Leonard Tar-rant, Mary E.. Mardis-and Reuben- Mardis, adm’rs -and adm’x-. of Samuel Mardis, deceased, executed on Tarrant and Mrs. Mardis, and not found as to Reuben - Mardis. ■ The declaration-is in the usual-form against those on whom the writ is served, and the action discontinued as-to Reuben Mardis.

Question reserved by the Circuit Court of Cherokee county. THE defendant was indicted for the crime of perjury^-ahd tried and convicted at the last fall circuit. After the conviction,-.h,e moved in arrest of judgment, that the indictment was not sufficient in law to authorise the sentence,- and the Circuit Court' considering the question presented- by the record as novel and difficult, reserved it for the consideration of the Supreme Court.

Writ of error to the Circuit Court- of Tallapoosa. ■ This case was commenced before a justice of the peace, by the defendant in-.error, against Moses Bentley, Wiley'Crawford and Salmon Washburn, for the recovery of a note-of-fifty dollars. A judgment-was there rendered for -the amount of the note, with one dollar for interest, besides-costs. From that judgment, the defendants prosecuted an appeal,Crawford alone, -entering into bond with. John -Hopkins, his surety.

Error t© the County Court of Pickens. THIS -action was commenced in the Court below, by the plaintiff in error, against the defendant in error, on his indorsement of a note to 'one Green S. S.tilwell, the note -having been executed on the 1st January, 1836, by one Rezin Ridgeway, for the payment to the plaintiff, -twelve months thereafter, of one thousand and'eighty dollars.

Writ Of error to-the County-Court- of! Tuskaloosa county, - DEBT’upon bond.

THIS was a proceeding in the Orphans’ Court of Chambérs, at the suit of an executor against the heirs -of his testator, for the purpose of obtaining.an order for the sale of-the lands of the decedent.

<p>L Where tw.o statutes are so repugnant to each other that they can not stanabto, gether, the latter will repeal the former; but so far as they can consist together, they should be sustained, as ll)e law does not favor a repeal by implication.</p> <p>2. iThe replevy bond required by the 6th section of the act of 23d December 1837, • “ to explain and amend the-law ip relation to attachments,” may be execute^ by a stranger. ' ‘</p>

Writ of error to the County Court of Morgan. TRESPASS for taking and carrying away a slave. The defendant pleads not guilty, and justification. The plaintiff introduced a deed of trust in evidence, by which jt appeared that Aai’on Perry had' conveyed the slave in controversy, to. Malcajah' D. Fowler, in trust to sell; for the, purpose of paying- certain liabilities of Perry,to John Fowler, jfcmes Teague and Francis!M .

<p>1. Where the judgment recites, that there came a jury of good and lawful men, to. wit,-and eleven others, it will be intended that the case was tried by a competent jury.</p> <p>9. If the jury return a verdict in favor of the plaintiff for a specific sum, and the judgment is, that theplaintiff “ recover of said defendant the said sum of-dollars, so assessed as aforesaid,” &c. the legal conclusion is, that the judgment is for the amount of the verdict.</p> <p>3. Where there are several plaintiffs, and the jury find for the “plaintiff,” the verdict will be regarded as a finding of the issue in favor of the “ plaintiffs.”</p>

THIS was an action of assumpsit in the Court below, by the plaintiff in error, against the defendants in error. The declaration, in substance alleges, that one Charles S, Lewis, on the 1st September, 1833, made his promissory note, by which he promised to pay to the defendant, R. R. Chilton, or bearer, five hundred and fifty dollars, on the first of January, 1840, with interest from the date.

<p>Appeal from the Court of Chancery for the fifth District of the Northern Division.</p> <p>The bill alleges, that Cozens, on the 6th August, 1839, procured an attachment at his own suit, to be levied on certain slaves, as the property of one Calhoun, and having afterwards, in March, 1841,recovered judgment on the attachment, he caused an order of sale or execution to be issued. This was plac* ed in the hands of the sheriff of Tuskaloosa county, on the 7th April, 1841, and he, by virtue of it, seized and took the slaves into his possession; whereupon, the said Calhoun replevied the property by executing a forthcoming bond, conditioned to deliver the slaves on the 1st Monday of June, thereafter. To this bond, the complainant was Calhoun’s surety.</p> <p>The slaves were not delivered to the sheriff on the 1st Monday of June, as required by the' condition of the bond, which was consequently returned forfeited: and afterwards, an execution was issued against Calhoun, and also against the complainant, as his surety.</p> <p>On the 21st June, the complainant delivered the slaves to the sheriff, who levied the execution that issued on the bond upon the slaves, and advertised them for sale. It is also alleged that these slaves are of sufficient value to satisfy the execution.</p> <p>The bill then alleges that Mrs. Calhoun, the wife of the defendant in execution, commenced proceedings by bill in equity, against Cozens, asserting that the slaves levied on were her sole and separate estate, and not1 in any manner, liable to the debts of her husband, and prayed an injunction t,o restrain Cozens from selling them under his execution. It also alleges that proceedings wer-e had on this suit; that an injunction was allowed by the Chancellor, upon the execution of a bond payable to Cozens, and conditioned in conformity with the fiat, which, however, is not set out.</p> <p>The bill asserts that Cozens has instructed the sheriff to seize property belonging to the complainant, and to sell the same in satisfaction of the same execution,’ which the complainant believes the sheriff will do, unless restrained by injunction, which is -prayed for.</p> <p>The injunction was awarded and the defendant demurred to the bill. The Chancellor sustained the demurrer and dismissed the bill. From this decree the complainant, appealed and here insists that it is erroneous.</p> <p>made two points;</p> <p>1. That by delivering the property to the sheriff on the execution issued on the forthcoming bond, the complanant is entitled in equity, to a discharge from the legal penalty of the bond. Roberts v. Henry, 2 Stewart, 42; Laughlin v. Ferguson, 6 Dana, 111.</p> <p>2. That the levy by the sheriff on the property named in the bill being sufficient to satify the execution, operates as a discharge of the execution until it is determined finally that the property is not liable to be sold under the levy. Hoyt v. Hudson, 12 John 207; 1 Cowen 47 note, a; Clark v. Withers, 2 Ld. Raymond, 1072; exparte Lawrence, 4 Cowen, 417.</p> <p>contended, that the forfeiture ofthe condition of the bond, gave to Cozens an absolute right to pursue the complainant, which right could only be satisfied by payment of the amount of the execution. This right being given by statute, cannot be taken away in consequence of any hardship which may be supposed to result to the security. Aiken’s Digest. 171, § 64; Sadler v. Glover, 5 Dana, 551; Syms v. Montague, 4 H. & M. 180.</p> <p>Another reason why the subsequent delivery even of the same property, ought not to discharge the surety is, that the lien of the execution is discharged by the forfeiture of the bond, and other liens may have attached, or rights accrued, which the plaintiff in execution ought not to be compelled to litigate. Lusk v. Ramsay, 3 Mun. 417.</p> <p>The levy of the sheriff having been released by the or'der of a competent tribunal, is, so far as the complainant is concerned, as if it had never been. This makes a distinction, which renders it necessary to examine how far a levy is a satisfaction, when it produces nothing to the plaintiff in execution.</p>

<p>THE plaintiff in error declared against the defendant in the Circuit Court of Baldwin, for goods, wares and merchandize, sold and delivered.</p> <p>On the trial, the plaintiff proved that he was a merchant, and that b|e had no clerk, but sold goods himself. He then produced his daybook and ledger, kept by himself, in which the defendant appeared to be charged with merchandize sold by the plaintiff, to the amount of one hundred and sixty-nine dollars. It was proved that the charges were reasonable and proper; and persons who had dealt with the plaintiff testified, that he kept correct books, and his accounts were fair. The defendant moved the Court to exclude the plaintiff’s books from the jury as inadmissible evidence, which motion was sustained; and thereupon the plaintiff excepted.</p> <p>A verdict and judgment being rendered in favor of the plaintiff, he has prosecuted a writ of error to this Court.</p>

<p>Error to the County Court of Tuskaloosa.</p> <p>r THIS was an action of assumpsit in the Court below, by the defendant against the plaintiffs in error, on an accepted bill of exchange, for two thousand eight hundred and sixty-four dollars and sixteen cents. The parties went to trial on issues taken on the pleas of non assumpsit, payment, set off and usury.</p> <p>Upon the trial, as appears from a bill of exceptions, the defendants, to sustain the plea of usury, proved that the plaintiff had a large claim on one John C. Cabiness, secured by a deed of trust on land and slaves, and on the day the bill here sued on was drawn and accepted, a settlement took place between Cabiness and Dyer, when the former fell in debt to the latter, the amount of the bill; that the defendants also had a large claim against Cabiness, secured also by a deed of trust on the same land and slaves conveyed to secure the debt to Dyer, but this latter deed was junior, in point of time, to his. That it was arranged and agreed between all the parties, that the defendants should accept the bill sued on, and that Dyer should enter satisfaction of his deed of trust in the clerk’s office, and upon his doing so, the defendants accepted the bill, the acknowledgment of satisfaction- of his deed of trust, being the inducement to the acceptance. The property contained in the deed of trust, was more than sufficient to pay Dyer’s debt, and came to the possession of the defendants, and was sold by them. It further appeared, that the debt, both of plaintiff and defendants, due from Cabiness, were usurious, and that the whole' amount due from Cabiness to Dyer, on settlement, and for which the bill was drawn, consisted of unlawful interest, the principal having been all paid; but that Cabiness claimed no abatement from either party, on account of usury, but desired to settle the full amount of both debts.</p> <p>Upon this testimony, the defendants asked the Court to , charge the jury, that if they believed from the evidence, that the whole amount of said bill was for usury, at the rate of four per cent, per month, and that it was accepted by defendants for the accommodation of Cabiness, that then the plaintiff cannot recover in this action, which charge the Court gave, and further charged the jury, that if the acceptance was given in consideration that Dyer would enter satisfaction on his deed of trust on the property of Cabiness, that then defendants could not set up usury as a defence to this action. The Court charged further, that usury was a personal privilege, and that defendants could not take advantage of the usury between Dyer and Cabiness, in this action, unless the acceptance was an accommodation acceptance. To all which the defendants excepted.</p> <p>The jury found a verdict for the plaintiff, and judgment being rendered thereon, this writ of error is prosecuted to reverse it.</p> <p>The assignments of error are the charges given by the Court as set out in the bill of exceptions.</p> <p>contended, that as the bill was drawn and accepted for a debt, consisting entirely of usurious interest, that no recovery could be had upon it.— That the taking of usurious interest was an indictable offence, and that no Court could sanction a recovery, when the receipt of the money would subject the party receiving it, to a criminal prosecution. They cited 2 Peters, 538.</p> <p>insisted that the plaintiffs in error were not in a condition to raise the question of usury; that as between the parties to this suit* the consideration of the bill was lawful. That usury was a personal privilege, and as Cabiness waived the defence, no one else could maKe it.. In support of these views, he cited 9 Mass. 45; 4 Esp. Rep. 11; 10 Johns. 204; 1 Bul. N. P. 224 : 4 Dana, 181; Hardin’s Rep. 82; 7 Peters, 111; 8 Term, 390; 5 Reports, 119, Whelpdale’s case; 3 Reports, 436.</p>

<p>1, A blank endorsement imports a consideration, and can be given in evidence on the common counts.</p> <p>2. When one places his name in blank upon the back of a note, negotiable and payable in Bank, although the note is not endorsed by the payee, the endorser thereby becomes bound to a similar extent as he would be by a perfect endorsement to another party to the note; and he may be charged by the payee, upon showing a demand upon the maker, and notice to the endorser, on the last day of grace.</p>

<p>1. Upon the settlement, by the Orphans’ Court, of the accounts of the guardian of a female ward who has married, the decree should be rendered in favor of the ward and her husband jointly.</p> <p>2. Where an execution is unauthorised by the judgment, a supersedeas is the proper remedy, or when the Court, from which it issued, is in session, a motion to quash will be entertained.</p>

Lyon, Joseph B. Earle, Samuel II. Garrow, and Henry Goldthwaite, to foreclose a mortgage against the heirs of S. Y. Y. Schuyler. The master having reported the amount of the debt, his report was confirmed, and a sale of the mortgaged premises directed to be made.

Writ of error to the County Court of Dallas county. THE capias describes the plaintiffs by the name of the Ca-hawba, Marion and Greensborough Rail Road Company, but they declare as “The Cahawba and; Marion Rail Road Company, at whose suit, by the name of the Cahawba, Marion and Greensborough Rail Road Company, the defendant was served with process; and who sue for the Use of Julius Snead, by attorney, &C.” ' ' : The first count of the declaration states the incorporation of…

<p>1. A supersedeas is not grantable to suspend or arrest an execution, upon an allegation which is not sustained by the record.</p> <p>2. It is competent for a Court to correct, or set aside an entry at the term at which it was made, but this cannot be don.e at a subsequent t.erm, upon a mere allegation that an improper entry had been made by the neglect or inad. vertence of the clerk.</p>

THIS was a proceeding in the Orphans’ Court of Madison county, by the defendants in error, and others, legatees of Asa Thompson, deceased, against .the plaintiff in error, as administrator de bonis non of Polly Thompson, deceased, who was executrix of Asa Thompson. The record shews, that in May, 1828, Polly Thompson applied to the Orphans’ Court of Madison eounty, and obtained letters testamentary on the estate of Asa Thompson, deceased.

<p>Writ of error to the County Court of Cherokee county.</p> <p>COVENANT upon a contract under seal, by which the defendant agreed to employ the plaintiff, for the term of twelvemonths, to go to Cedar Bluff, and help to erect a house, and also to keep a grocery. The plaintiff bound himself to attend diligently to the business, and to take good care of all things committed to his care by the defendant; to make the best sales of the same, in such way and manner as the defendant should direct, and make- true return of all the proceeds to the defendant, when he should call for the same.</p> <p>The defendant bound himself to furnish the plaintiff with such materials as would be comfortable for cooking, and provisions uncooked, together with some cooking utens is, and to pay the plaintiff for his services at the rate of twelve dollars per month. Or the said defendant was to allow the plaintiff a chance to make a trial of selling, after he should commence, and until the defendant should return with another parcel of liquors; and if the plaintiff then thought proper, he might pay over to the defendant, one dollar and fifty cents per gallon for every gallon of whiskey he might then have sold, and retain the overplus, in place of the twelve dollars per month.</p> <p>, The plaintiff then avers that he entered upon the service of the defendant under the said covenant, and remained therein from the day and year last aforesaid, (which however is left .entirely blank in the previous part of the declaration) until -- (another blank.) It then avers the failure of the defendant to furnish the articles before agreed on; that the plaintiff made his election to receive the twelve dollars per month, and the neglect to pay the twelve dollars per month for one yéar; and concludes, that so the defendant has broken his covenant to the plaintiff’s damage of five hundred dollars.</p> <p>The defendant demurred, and the Court overruled the demurrer; whereupon he pleaded as follows:</p> <p>The defendant says actio non, because he saith that the said plaintiff did not truly and faithfully serve the defendant according to the form and effect of the said agreement, but wholly ' neglected so to do; and on the contrary thereof, the said plaintiff, after the making the said articles of agreement, and during the said term therein mentioned, departed and absented himself from the service of the defendant, and during the said time tvent into the service and employment of others, without the consent and against the will of the defendant, and continued .therein, and hath commenced this action against the defendant before the expiration of the said twelve months, on the articles mentioned, the contract being still open and entire, and hath pot returned to the service of the defendant; of all which, he puts himself upon.the country. •</p> <p>To this the plaintiff demurred, and the Court having overruled the demurrer, he then replied that the said plaintiff remained in the employment of said defendant until and so long as the said defendant would permit him, and of this he put himself upon the country.</p> <p>In the record are found two other pleas, which are to this effect:</p> <p>Actio non, because he saith that from the plaintiff’s own showing, he has not continued in the employ of the defendant for the term of twelve months, or for any other specific period, so as to entitle himself to call on the defendant to answer.</p> <p>Actio non, because he saith that the said plaintiff by his own shewing of the instrument declared,, shows that it contains conditions precedent, which were to be performed by plaintiff,which have not been performed by him-</p> <p>The defendant demurred to the pleas, but no notice is taken, of his demurrer by the Court, and he afterwards replied to the first of the two last stated, that he had performed the conditions precedent so far as the defendant would permit him.</p> <p>The case was tried as on an issue, and a verdict found for the defendant, on which judgment was rendered.</p> <p>It is stated in the judgment entry, that a re-pleader was awarded, but this is presumed to refer to- other pleadings not shewn by the record.</p> <p>To reverse this judgment, the plaintiff prosecutes his writ of error, and assigns that the Court erred in awarding a re-pleader, and in overruling the demurrers to the first, second and third pleas.</p>

<p>1. It is a general rulé of thd common law, that by the mere contract'of sale, the' property in the thing sold passes to the vendee,, yet he is not invested with a right to the possession, if no credit was agreed'upon,.until the price is paid, or tendered.</p> <p>2. Where the sale is perfect, the goods are placed at the buyers riels, even before delivery, and- if they perish without the sellers fault, the purchaser is bound to- pay the agreed price.</p> <p>3. Goods are not transferred to the vendee by the contract of sale, if any material acts remain to- he done before delivery,, to'distinguish- them,, or ascertain.' their price;, or where- at sale is made subject to the condition of weighing, counting, or measuring, the property does not vest in- the buyer until the goods are weighed,, counted, cr measured. '</p> <p>&. Upon a sale of goods by sample, there is an implied warranty by the- seller, that the bulk of the'commodity is equal in quality to the sample exhibited to the buyer; and if it does not correspond,, the’purchaser may refuse to receive it, or if received he may return it in a reasonable time, allowed for examination, and thus rescind, the contrast. — But if he keep the goods and use them as his own after time allowed for inspection, he eannot repudiate the purchase, though he may maintain an action for a breach of the implied warranty.</p> <p>5. Where goods are sold by sample, the property passes immediately to the ven-dee, if the performance of no act is stipulated by cither party as a condition precedent, and the loss resulting from their destruction must be borne by him, if they were of the quality indicated by the sample; if they were not of that quality their destruction cannot deprive him of the right of repudiating the contract, where a reasonable time had not elapsed for examination, nor can it revive that right, if such time had passed previous to their loss.</p> <p>6. Where'a contract is made for the sale of cotton stored in a warehouse, and an order given to the purchaser, addressed to the warehouseman, directing the latter to deliver to him the cotton, the prima facie inference is, that the seller intended to part with the property and possession to the buyer.</p> <p>7. A warehouseman is an agent of the party -storing goods with him merely for the purpose of taking care of them, and a notice to him by one who has made a contract for them, that he will not receive them, is no notice to the seller.</p> <p>8.' Evidence which does not tend to establish any material fact, is inadmissible.</p> <p>9. Where the seller of goods makes a false representation as to their quality and condition, the buyer, upon ascertaining it, may rescind his contract.</p> <p>10. An agreement was entered into to purchase an entire crop of cotton, without reference to quantity, (then in a warehouse where the contract was made,) at an agreed sum per pound, all of which had been weighed by a public weigher within seven days preceding; the price was to be paid when called for, within a few days, and an order on the warehouseman was given to the purchaser: Held, that weighing was not annexed by the parties as a term of the contract necessary to complete the sale, and the law would not imply it in the absence of proof showing it was contemplated; inasmuch as it was not necessary to ascertain the aggregate sum to be paid.’</p> <p>11. A charge upon an abstract point of law, not calculated to mislead the jury, furnishes no ground for the reversal of a judgment. '</p> <p>12. An error in a single expression contained in a charge to the jury, if explained and corrected, so that the jury could not have been misled by it, will not be fatal to the judgment.</p>

<p>■ Error to the County Court of Madison.</p>

<p>1. If an affidavit is actually sworn to before the justice who issues the attach, ment, his omission to certify the affidavit, will not vitiate the proceedings.</p> <p>2. Although the affidavit states that the defendant will be indebted, yet, if it shows other facts, as by setting out the dale and time of payment of the note from which the indebtedness arises, it will be considered as if a present indebt, edness was sworn to in direct terms.</p>

Writ of error to the Circuit Court of Mobile. IN the record we find a notice in which is described a writ of fieri fiadas, at the suit of the defendant in error, against James Walsh and William C. Baldwin, issued on a judgment rendered by the Circuit Court of Mobile.

<p>1. No advantage can be taken on error because the damages' found by the ver. diet and judgment, exceed the amount of the note and interest, as described in the declaration.</p>

<p>This cause comes here by writ of error from the Circuit Court of Autauga.</p> <p>THE plaintiffs by their petition, addressed to the Judge of the County Court of Autauga, stated, that an execution had been issued against them by William Price, a justice of the peace of that county, for the sum of thirty-six dollars and forty cents, besides costs; which execution appeared upon its face to be founded on a judgment rendered by James H. Gorman, a justice of the peace of the same county. The plantiffs further stated, that Gorman was still in office, in possession of all the papers and entries pertaining to the case in which the judgment was rendered; notwithstanding, all which, Price had issued the execution returnable before himself. The petition then concludes with a prayer that a certiorari may issue to remove the proceedings into the County Court, and in the meantime the execution be superseded. An order was made in conformity to the prayer of the petition, and a certiorari directed to Price, who certified two executions issued on the judgment, one by Gorman, on the 2d April, 1839, the other (the execution complained of,) by himself, on the 28th August, 1839.</p> <p>At the return term of the certiorari, the County Court, on the motion of the defendant, dismissed the petition of the plaintiff and all proceedings consequent thereupon, on the ground that all the papers of the justice had not been sent up. To revise the judgment of the County Court, a writ of error was sued to the Circuit Court and the same there affirmed; and it is that judgment of affirmance which is here sought to be reversed.</p>

THIS! was a bill in Chancery, filed by the plaintiff in error, to subject the lands of Joseph Phillips, in the hands of his de-visees and others, to the payment of a debt alleged to be due from him to the complainant.

<p>Writ of error to the Circuit Court of Tallapoosa.</p> <p>THIS was an action of assumpsit on a promissory note. The writ is addressed “ to any sheriff of the State of Alabama,”' and was returned “executed by H. ■ J. Pickard, cor. by R. Espy.” Judgment being rendered against the defendant by default, he has prosecuted a writ of error to this Court.</p>

THE bill states that one Walker drew a bill of exchange on the defendant Riddle, for three thousand five'hundred and twenty dollars forty-three cents, payable at the Bank at Montgomery, which bill was accepted by Riddle; and which at the instance and persuasion of Riddle, and on his assurance that there was no risk, complainant indorsed it; that the bill was also indorsed by T. Maddox and D. Conner, — and afterwards andinthe regular course of trade, became the property of…

<p>THE defendant in error, declared against the plaintiffinthe Circuit Court of Tallapoosa, for goods, wares and merchandize sold and delivered. The cause was tried on the pleas of non assumpsit, payment and former recovery.</p> <p>On the trial, the plaintiff introduced one Rodgers as a witness, who executed to him a release of. all his interest in the subject matter of the suit. The witness stated that a contract existed between himself and the plaintiff, whereby the latter was to'furnish the goods of a mercantile concern, which goods the former was to sell, and in consideration of his services, he was to receive one half of the profits arising therefrom. The witness furnished none of the goods, and'was not liable for any losses incurred in the prosecution of the business. Whereupon the defendant’s counsel prayed the Court to charge the jury, that if they believed the statement of the witness, then he (the witness) was a co-partner of the plaintiff, and not being joined in the prosecution of the suit, the action- could not be maintained, but they must find for the defendant; which charge, the Court refused to give: and thereupon, the defendant excepted.</p> <p>A verdict being found for the plaintiff, and judgment thereon rendered, the defendant has sued a writ of error to this Court.</p> <p>cited Collyer on Part. 2, 8,9, note (0) 14, 43; 1 McC. Chan. Rep- 218; 6 Conn. Rep. 347; 3 H. & Johns. Rep. 505; 19 Yes. Rep. 459.</p> <p>relied upon Lloyd v. Archbowle, 2 Taunt. Rep. 324.</p>

THIS was an indictment against the defendant, for setting up and using a billiard table for play, without first obtaining a license therefor, contrary to the-statufe, &c. The jury found the defendant guilty, and assessed his fine to one hundred a.nd fifty dollars. The defendant moved in arrest of judgment on the ground, 1. That keeping a billiard table for play was not an in-, dictable offence. 3.

<p>THE defendant in error on the first day of October, 1839; caused to be issued from the Circuit Court of Cherokee, a writ of capias ad respondendum, against the defendants, with a view to the rocovery of a promissory note, of the following tenor:</p> <p>“ $120. — On or before the first day of February, 1839, we promise to pay Silas Smith, or bearer, the sum of one hundi’ed and twenty dollars, for value received, this 8th February, 183-8.</p> <p>William S. Dupree,</p> <p>Wade Hampton.”</p> <p>On this writ, the sheriff made the following indorsements:</p> <p>“Came to hand 1st Oct. 1839. Executed the 2d Oct. 1839.</p> <p>M. H. Hughes, sheriff, by his deputy W. F. Means.</p> <p>“Dupree not found in my county, Oct. 2,1839.</p> <p>M. Hughes, sheriff, by his deputy,</p> <p>W. F. Means.”</p> <p>On the 1st day of April, 1840, another writ, similar to the first, was issued returnable to the spring term of the same (Jourt. This writ was placed in the sheriff’s hands on the day of its issuance and executed the same day. On the lOthMarch, 1840, the plaintiff filed a declaration against both the defendants, entitled as of the spring term, 1840. At an adjourned term of the Court, holden in July, of the same year, a judgment was rendered against the defendants for the amount of the note, with interest and costs, which recites that the parties came, by their attorneys, and the defendants say nothing in bar or preclusion of the plaintiff’s right of action.</p> <p>To revise this judgment, the defendants have sued a writ of error to this court.</p>

The record recites that the plaintiff came by his attorney and moved the Court for judgment against Andrew J. Stephens, as late deputy, &c. and against Larkin D. Holleman, his surety, &c. for the sum of five hundred dollars, the amount of a judgment this day rendered against the said Jesse Womack, as sheriff aforesaid, for failing to pay over the amount of an execution, &c, which is particularly described.

<p>THE plaintiff in error'declared against the defendant and Frederick Ravesies, in the County Court of Mobile, upon their joint promises to pay him money, due for the hire of his servants ; and also, for work and labor done for them by his servants, at their joint request. It appears from the record, that the writ was executed on Lesne only, and returned, “ not found,” as to Ravesies.</p> <p>It does not appear that either of the parties declared against, pleaded; but at the trial term, an entry was made as follows t “ This day came the parties by their attornies, and this cause is discontinued by plaintiff as to Frederick Ravesies, and the plaintiff's attorney having leave to amend his declaration by striking out the name of F. Ravisies, so as to declare upon the several promises and undertakings of said Lesne; and thereupon came a jury of good and lawful men, to wit: Mark A. Ward and others, who upon their oaths do say, “We, of the jury, find for the plaintiff and assess the damages at three hundred and sixteen dollars and 24 cents. It is, thex-efore, considered by the Court, that the plaintiff í’ecover from the defendant, James Lesne, the sum of three hundred and sixteen dollars and twenty-four cents, for his damages by the jury, in form aforesaid assessed; also, his costs by him about his suit, in this behalf expended.” Afterwai’ds, on a day of the same term, the Court made an order in these words: “On motion of defendant’s counsel, it is ordered, that the verdict in this case be set aside, and a non-suit be entered against plaintiff. It is, therefore, considered that plaintiff pay costs, for which execution may issue.”</p> <p>To revise the order setting aside the verdict, and directing a non-suit, and the payment of costs, the plaintiff has pi-osecu-ted his writ of error to this Court.</p>

<p>1. A justice of the peace may permit an amendment to the complaint in a case of forcible entry and detainer, before issue joined.</p> <p>2. When the Circuit Court affirms the judgment of a justice of the peace, in a case of forcible entry and detainer, it is not error for the Court to remand the case, to .enable the justice to issue a writ of restitution.</p>

<p>IT appears from the record in this canse, that the- defendant in error recovered against the plaintiff at the fall term,. 1840, of the Circuit Cour.t of Mobile, a judgment for the sum of sixteen hundred and thirty-seven dollars ? and at the spring-term, 1841, the plaintiffs moved for a new trial, which being refused, they excepted. The bill of exceptions is as follows: “-la-this cause, a verdict was rendered for the plaintiff at the last term of the Circuit Court for Mobile county, and a motion was-made at the said term for a new trial-. Before a decision was-made on the motion, and while it was still pending,- the Courts aforesaid,, adjourned to the next regular term of the said Court;; a judgment having been entered on said verdict At the present term,, the same motion was made for a new trial upon the same verdict, before the Hon. El S. Dargan, the presiding-Judge, who: declined to hear the same-, or inquire into the merits; thereof, because the said motion should have been determined at the last term of the Court, and that it could not- now be decided. Tb which- refusal to hear the aforesaid motion, the said-defendants except, and pray the Count to sign this-bill of exceptions.”</p> <p>The only error assigned- is-, that the Court erred iff not hearing the motion for a new trial'.</p>

THIS was a bill in Chancery, filed by the plaintiffs in error, against the defendants in error.

<p>Writ of error to the Orphans’ Court of TuskaJ'oosa county.</p> <p>It appears from the record, that the parties were both legatees under, and executors of the will of James Childress, deceased. Among other bequests by the testator, in favor of the defendant in error, is one of “one thousand dollars in cash; to be paid to her out of the money due me (him) m the State of Virginia, from Thomas McCargo, when the same shall be collected.” He also bequeathed to the plaintiff “the balance of the debt, or money due me (him) in the State of Virginia, from Thomas McCargo, after my (his) wife shall receive the amount of the said debt to her above bequeathed.”</p> <p>Upon a final settlement of the accounts of the executors with the Orphans’ Court, the plaintiff exhibited an account for about eight hundred dollars, being his expenses and commissions for collecting the debt due from McCargo, which was, including principal and interest, about fifty-nine hundred dollars. The Court refused to allow the account of the plaintiff, and rendered a decree against him in favor of the defendant as a legatee under the will, for the sum of one thousand dollars bequeathed.</p> <p>The plaintiff in his account, as executor, admits that he collected the McCargo debt, and charges himself with one thousand dollars, as due to the defendant for her legacy. He also charges himself with “ his note for Areola lots, #265 00.”</p> <p>insisted that the Orphans’ Court erred,</p> <p>1. In charging the plaintiff with his note for Areola lots, and rendering a decree against him for the amount of the same,</p> <p>2. In rejecting the plaintiff's account for collecting McCar-go’s note, and thus charging his portion of the same with the expence of the collection.</p> <p>3. In rendering a decree in favor of the defendant for one thousand dollars, the amount of the monied legacy bequeathed her by the testator.</p> <p>The writ of error in this case, does not authorise this Court to look into any objection to the decree of the Orphans’ Court, except such as relates to the defendant, as legatee.</p> <p>The decree, so far as it respects the plaintiff’s note for Ar-eola lots, cannot as the case is presented, be drawn in question.</p> <p>The testator, it is obvious, from the terms of his will, intended that the McCargo debt, if collectable, should bear the expense of its collection, and that the nett balance should be paid to the plaintiff, after the defendant had received her portion of it. As' the money remaining in the hands of the plaintiff subject to the payment of the legacies, &c. was more than equal to the decree in favor of the defendant; the Orphans’ Court did not err in thus directing its payment.</p>

Writ of error to the Court of Chancery sitting at Columbi-ana.