Volume 3 — Porter's Alabama Reports (1834–1839)

As to decrees in Chancenj, where parties have not answered; or have not been served with process. As to the service of process upon a personal representative, before decree. Held: in his lifetime, many certificates of purchase, on which, portions of the purchase money had been paid; and, upon some of which, patents were afterwards granted, by the United States, to the heirs of Joseph Philips.

In this case a question is decided as to the pleading of an immaterial fact; and the effect of taking issue thereon. The action was assumpsit, and was brought to recover a sum of money of Hazard, who was charged in the declaration as the administrator, de bonis non, of T. Livingston.

As to the jurisdiction of the Orphans' Court on the subject of a destroyed mill, and the establishment thereof by proof As to the establishment of such a will, by a copy thereof As to the number of the attesting witnesses necessary to establish a will. In error from the Orphans’ Court of Autauga. This was a proceeding before the Orphans’ Court, instituted for the object of establishing the last will and testament of James L. Cottrell.

As to the competency of one to execute a valid convey« anee of realty, in consideration of natural love and affection, under a provision that the deed shall take effect in futuro. Held: that some estates tail, created after the passage of the statute, must, by it, be turñed into fees simple, it, by no means, follows, that all must.

QUESTIONS IN THIS CASE As to the answer of a garnishee. As to the issuance of a summons in garnishment against an administrator, within six months after the grant of letters.

As to the right of action upon a promissory note, by the bearer. .As to averments of diligence, as against the maker. The action was originally commenced before a justice of the peace, on a note drawn in favor of Al-day or bearer, and by him endorsed to one Burnett, and subsequently endorsed by Wells and Stokes. — ■ Jamison having become possessed of the note, as bearer, brought his action to recover the .amount thereof from Alday, as the original endorser.

In respect to the right of an attorney or counsellor, to make new contracts with the client, for compensation, after retainer. This was a bill in Chancery, filed in the Mobile Circuit Court, by Littleton Lecatt; the object of which was to enjoin a judgment obtained against him, by the defendant in error.

As to charges of Courts, upon abstract questions. As to a defence by a vendee of personal property, while retaining possession. In error from Montgomery Circuit Court. This action was assumpsit, upon a promissory note, instituted by the defendant in error, to whom the note was made payable. The defence relied on to resist a recovery, was, that the note had been executed in consideration of the purchase of a slave, the title to which was not in the vendor.

As to a creditor*slienin attachment; and the effect of a replevy bond thereon. As to a description, in pleading, of the name of an obligee in a bond. In error from Autauga Circuit Court.

Upon the conclusiveness of a judgment in garnishment, againt the maker of a note, after notice of its transfer. This suit was instituted by Rich, in Montgomery Circuit Court, and was assumpsit, upon a promissory note. The note was executed by Colvin, and was made payable to B. B. Ginn, or bearer; and Colvin resisted a recovery against him, by pleading that he had been garnisheed in respect to the amount of this note; under which he had answered, and made payment thereto.

What evidence mill enable a parti/ to maintain trespass to try title. Trespass to try title in Dallas Circuit Court.

The competency of a defendant in attachment, to testify as to the title of goods levied on-, as of his property. As to the admission in evidence, of the record of an attachment cause, under which goods have been levied, in trespass against a sheriff. What taking, by a sheriff’s deputy, will justify trespass against the sheriff. This was an action of trespass, for taking cotton, in Dallas Circuit Court, and was brought by Burns, against Taylor.

Extuse by a Constable for failure to return an execution. This was a motion against Weir, a constable' of the county of Wilcox, for failing to make clue return, on an execution, which had gone into his hands, and in which the plaintiffs in error were plaintiffs.

Upon the validity of a voluntary conveyance, to children, from, a father. As to the effect of a child's marriage, upon such conveyance. In these several cases, trials of the right of property taken upon execution, were had, in the Circuit Court of Autauga, on claims instituted by the plaintiffs in error. In the execution, Thompson was plaintiff, Henry Miller and Charles P. W. Miller defendants. The property in question consisted of slaves, one to each of the claimants.

'Upon the return of an officer executing scire facias. 1. That no return appeared on a scire facias issued'against a defaulting witness, held to be sufficient error to reverse a judgment rendered thereon.

As to the liability of an administrator individually. 1. An administrator purchasing goods, for the use and benefit of an estate, is personally responsible to the vendor; and an action for the price thereof lies against him, in his individual capacity.

<p>1. Under a demurrer to a declaration filed in fin attachment case a question cannot arise as to the propriety of the claim under which the process issues — the declaration on its face containing a substantial cause of action.</p>

Does debt lie against the maker of a note, by the bearer. Whether, the action being debt, the judgment can be entered, as in assumpsit. As to the right of the bearer of a note, to sue the maker thereon, there being an intermediate indorsee, between the bearer and his assignor. The competency of a payee and indorsee of a note, to testify in an action by a bearer, against the maker.

The effect of an agreement to arbitrate a claim, upon the right of action thereon. Whether covenant lies for the breach of a contract, contemplating a copartnership. As to the breach of covenants difficult to be performed. As to the plea of performance of covenants. Excuse for breach of covenant — how far available, in mitigation of damages. in error from Mobile Circuit Court.

The effect of the act of 1806, (exempting the representative of an estate from suit, within six months after letters,) on the statute of limitations. This was an action of assumpsit, in Washington Circuit Court, bj the plaintiff in error, to recover of the administrators of Shields, for work and labor, done and performed for the intestate. The pleas were non-assumpsit and the statute of limitations.

Fraudulent and void purchases of a debtor's estate, by ' his friends, for the object of assisting him; as against creditors. This was a bill in Chancery, filed in Lawrence Circuit Court, by Jones against Evans, the executor of Nimmo Morris, and others; and subsequently prosecuted by Overton the executor of Jones, against the present defendants, executors of Evans.

Justification by an officer, in trespass against him fór taking goods. As to irrelevant charges reguested of a Court. Held: and so charged, that the execution was a sufficient justification to the officer: and verdict and judgment were entered for the defendants; and a writ of error taken here. ' The cause being decided on one point alone, renders it unnecessary to .present a more full history, in this statement.

Discontinuance as to parties, not served with process. This was a suit, by summons and petition in Morgan County Court; and was brought by Lane, in that Court, to réeover of the plaintiffs in error, the amount due on a bond. The process seemed, by the returns, to have been' executed, on part only of the defendants; but the minutes showed the general entry, that all had appeared by counsel: and, that a judgment, under that appearance, had'-been entered for the plaintiff.

As to the acts of an agent — how far binding on the principal. This action was assumpsit, in Madison Circuit Court, and was there commenced and prosecuted, by Pattison, against Moore. The plaintiff declared on a contract, under which the defendant had sold to Pattison, one hundred and fifty thousand, nine hundred and thirty-nine pounds of baled cotton, amounting, at ten cents per pound, to fifteen thousand and ninety-three dollars and ninety cents.

Whether a cleric, after certifying a record, can prove it incomplete. The competency of an administrator to carry into effect a will, found after letters granted. As to the construction of the act of 1823, on the sub jectof the testimony of Indians, &c. Proof of the interest of a witness in the event of a ■ suit. Proof of ‘a will by an Indian, as between Indians. As to forcible acts in detinue; can they effect title? 'Damages in the action of detinue.

Whether the bond given by a claimant of property levied on under execution, can embrace real estate. This was a proceeding in Madison Circuit Court,instituted by Walton, for the object of enforcing a judgment, on motion, against the administrator of King, on a bond executed by the intestate, as a claimant of property, levied on under execution.

Relative to the reference of novel and difficult qiies* tions. As to words in an indictment for flaying at cards. This was an indictment tried in Jackson Circuit Court, in which the defendants were convicted, un? der the act of 182S, on the subject of gaming. The indictment, charged, that the defeudantsy>fay-.ed at cards: and it was contended, that it was bad, in as much as it did not aver the playing at a game, with cards.

Ct'jüs'Cioys a this cast:. Relative to the assignability of stock certificates, and of off-sets thereto. As to sales to a trustee, of the trust estat ■ Compensation to an acting trustee. This was a Chancery cause in Lawrence Circuit Court. The hill was filed by Joseph Spence, executor of John Spence, and the suit was revived in the name of Campbell, administrator.

Upon defects in a writ of error. As to citation. As to a division of one claim into several actions. As to recovery of money paid upon a note, but not credited thereon. As to an off-set. This was originally a suit, by the plaintiff in error, before a justice of the peace of the County of Mobile, where judgment was rendered for the plaintiff ; and an appeal taken to the Circuit Court, and the judgment of that Court awarded for the defendant.

Relative to the construction of the act of 1829, on the sulyject .of tax collectors. This action was instituted by Peck, before a justice of- the peace of Jefferson County, to r'ecover the sum of twelve dollars and seventeen cents; money illegally collected by the defendant, as a 'tax collector.- A judgment was rendered, before the justice, for the defendant; and on appeal to the Circuit Court,he succeeded also.

Relative to motions to retax costs. As to the attendance of witnesses summoned, but nett examined. In error from Covington Circuit Court. In this case a petition was filed by the plaintiff in error, praying a supersedeas as to certain executions obtained against him, by the defendant. The ground of the prayer was that the defendant had illegally summoned six witnesses to each case, as was alleged,with the design of oppressing the plaintiff.

Relative to the liability of the indorser of a bill of ex? change. In, error from Tuskaloosa County Court. This was a suit by notice, under the statute, in* stitute.d by the President and Directors of the Bank, against Hudson, as indorsor of a bill of exchange.— The bill was dated the first of January, 1832, and payable at one hundred and twenty days. It was purchased,, by the bank, on the 2nd January, 1833, and was protested, for- non-payment, on the 4th May, 1833.

As to discrediting a witness. Trover by Drake against Davenport, in Lowndes Circuit Court. After the defendant had closed his testimony, a witness to prove facts, rebutting those reli ed on in de-fence, was examined by the plaintiff. The defendant then offered to prove, that this witness was not entitled to credit; which the Court below refused to admit.

The construction of the act of 1830, for the relief of securities in Bank. This, was a motion made by the defendants in ef-ror, in Mobile Circuit Court. The plaintiffs in error being indebted to Butler & Harris, drew their bill of exchange; which, after* having been endorsed by the defendants in error, was discounted by the Branch Bank of Mobile ; and, after protest, paid by the endorsors.

Relative to the reference of questions novel and difficult. This was an indictment against Lynes, in Madison Circuit Court, for gaming. The record disclosed that he plead in abatement; and that a demurrer to that plea was sustained by the Court, At a term, subsequent to these proceedings a verdict was rendered in favor of the State; and in arrest of judgment, the defendant mooted the previous decision of the Court, on the demurrer to this plea.

As to the hire of slaves, bequeathed in futuro. In this case, Daniel Hovey, guardian of John W. Christian, filed a petition in the Orphans’ Court of Wilcox, praying an account of the estate of his ward, in the hands of Christian, the administratrix, cum tes-tamento amiezo, of the estate of George Christian, deceased.

What evidence of protest will charge the indorser of a foreign hill. The President and Directors of the Bank of the State of Alabama, issued a notice, directed to Moor-man, the plaintiff in error, informing him, that at an ensuing term of the Circuit Court of Tuskaloosa, they would move for judgment against him, as the indorser of a bill of exchange. ■ The bill was for two thousand dollars, and due at four months.

Relative to attachment, for cpntemjpt of Court,- ly breach of injunction. Held: on motion, it was ordered, that the above order, for taking of the body of the defendant, be rescinded: and thereupon, the plaintiff in error took his writ, from this Court.

Relative to lands of which an Indian widow is dowa-Me. This was a proceeding, instituted’in. Talladega Circuit Court, by tlie plaintiff in error, the widow of General Chinnubbee, a Creek chieftain of that tribe; .on a claim of dower. The land, of which the plaintiff prayed to be endowed, had been selected by her husband, in conformity with a provision of the treaty, entered into, on the 24th March, 1S32, between the United States and the Creek tribe of Indians.

As to the collateral impeachment of a patent, issued fir lands. Relative to proceedings in the action of trespass to try title. Wiley Eastis brought his action, of trespass to try title, to certain lands, against Robert Masters, in the Circuit Court of Jefferson ; and on the plea of the defendant, of not guilty, recovered judgment against him.

As to proof of property to the chattel converted, in trover. Trover by the plaintiff in e,rror, in Shelby Circuit Court. Tint plaintiff-declared against lhe defendants, for the conversion of a female slave: and the plea of the general issue was relied on.

Relative to bonds, required in an action of detinue. ■ This was an action of, debt, prosecuted in Shelby Circuit Court, By James B. Reed, against ttie defen-dantsin error, the obligors of a bond, executed under the statute of 1830, in detinue. In the action commenced by Thomas H. Brasher, one of(the defendants, against Reed, this bond liad been given, and Samuel Brasher was the surety. The bond was written, as follows, to wit: “The State of Alabama, Shelby County.

Relative to the answer of a garnishee in attachment. This was a proceeding in garnishment, before a justice of the peace, of Butler county, against the plaintiff in error, at the instance of Waters. The justice, on the answer of Colman, gave judgment, against him, which he removed, by'appeal, to the Circuit Court of that county ; where the judgment was again rendered against him on his answer.

Relative to admission of testimony, on sundry points in issue. As to criteria of damages, m trespass to try titles. James Wilson declared against Leonard Bullock, in Shelby Circuit Court, in the action of trespass to try title, to a parcel of land, whereon was situated a mill. The plea was, not guilty ; and under that issue, verdict and judgment were rendered for the plaintiff in the action.

As to suggestion against a sheriff, for failing to make the money on an execution.

As to the want of replication to a defendants picas. This action was debt, in Tuskaloosa County Court, •on a sealed note executed by the plaintiff in error. There were several pleas tendered by the defendant in the action, to none of which, however, was there ,a replication by the plain 1 iff. A judgment was rendered upon the verdict of a jury, in favor of the plaintiff, Filch, upon this state of the pleadings; and Wheelock prosecuted las writ of error to this Court.

As to the power of Chancery, to decree to a mortgagee the proceeds of a policy of insurance, effected, on the mortgaged property. In this case, a bill in Chancery was filed in the Circuit, Court of Tuskaloosa, against Medlock, by the plaintiffs in error, for the purpose of controlling the proceeds of a policy of insurance, which the defendant had effected upon certain real estate, situate in the town of Tuskaloosa.

The statute of limitations — how affected Toy previous adjudication. In this case, an action of assumpsit was brought, by the plaintiff in error, in Sumter Circuit Court, against the defendant, administrator of Irby. The cause of action was a promissory note, executed by Irby, in his life-time, to one Comegys, and, by the latter assigned to the plaintiff.

Points of practice in relation to continuances of causes, &c. Assumpsit in Tuskaloosa County Court,on a note of hand, executed by Greer.

As to evidence, in cases of the trial of right of property. Rendition of costs against the sureties of a claimant. This was a proceeding in the Circuit Court of Tuskaloosa, for the purpose of trying the right to' certain slaves. The slaves hp.d been levied on, under an execution issued upon a judgment, in favor of William Pair, ¡is of the property of Obadiah Hooper; and were claimed by-John its. Hooper.

As to a levy■ upon property, the claim to which has ' been tried under execution. In error from Talladega Circuit Court. Certain slaves having been levied on under an execution, in favor of Edmund King, issued to the sheriff of Talladega county, as of the property of Lucy ■Carlton, the same were claimed by the plaintiff in error, under the statute.

Qüestíos is this case. Relative to mandamus, directing the establishment of a ferru. . In litis ense a relation was filed, in Talladega Circuit Court, in the name of the Stateyif Alabama, by Driver and others, praying a mandamtls to the Court of Commissioners of Revenue and Roads, of that County, to compel the- issuance of a license to the re-lators. lor a public ferry.

QUESTIONS IN THIS CASE, As to the verification of a plea. Relative to a material alteration in a promissory note. Jones declared in assumpsit against the plaintiffs in error, in Tuskaloosa County Court, upon a promissory note. The defendants plead a special plea, and the general issue.

QUESTIONS II? THIS CASE. Relative to averments in a declaration in trespass, for hilling a slave. Relative to pleas, in such action. This was an action of trespass, for killing a slave, prosecuted by Holmes, in Pickens Circuit Court, against the plaintiff in error. The declaration was-in the usual form; and contained no averment, that the defendant had been tried by the State, for the of-fence.

Upon the mode of taking the deposition of absent witnesses. The competency of an administrator to testify as a witness. As to parol evidence of a receipt. William Pryor, administrator of the estate of Asa Pryor, declared against Wiggins’ administrators, in Madison Circuit Court, in the action of assumpsit, for money had and received, by the defendant’s intestate, to and for the use of the intestate of the plaintiff.

Principles, upon which Chancery will enjoin a judgment at law. In this oase, Royster filed a bill in Chancery, in Madison Circuit Court, for the purpose of enjoining the defendants from .proceeding to enforce a judgment obtained against him, at law.

<p>1. That an inferior Court, in reserving a question for the opinion of the Supreme Court, suspends judgment beyond the forty days, directed by the statute of 1834,* is not error — the statute being only directory.</p>

Relative to what words are actionable, per se. As to evidence of the general character of a plaintiff, in slander. This was an action of trespass on the case, instituted by Jones against Waters, in the Circuit Court of Butler.

Relative to the construction of the word, “children” in a will.

QUESTION IN THIS CASE to parol contracts for the s'üe of lands. This was a bill it) Chancery, filed in Madison Circuit Court, against the plaintiffs in error, the adminis-tratrix and heirs of the estate of Reuben Brock, deceased. The bill shewed, that the said Reuben Brock, in his life-time, being seized of certain lands, made sale thereof, to one Sadler.

Upon relief in Chancery on impertinent testimony. As to suhjec iug assets to payme/il of debts, in Chan- . eery. Relative to rights of parties not litigating a cause. In error from Tuskaloosa Circuit Court. This was a case in Chancery.