Volume 3 — Stewart's Alabama Reports (1827–1831)

This was a suit in Chancery, commenced in October, 1827, by N. Herbert and E. G. Kyle, copartners, against John Hobbs, administrator, and Elizabeth H. Fennell, ad-ministratrix of James Fennell, deceased, in the Circuit Court of Madison county.

T. W. BooTr~ and W. BELL, filed theirbill in Chancery against Comegys and Pershouse, in Limestone Circuit Court, in 1824, in which they charged that Falconer and Coipegys had obtained a judgment against one Brice l%1.

The President, Directors and Company of the Planter’s and Merchant’s Bank of Huntsville, brought an action of debt in the Circuit Court of Madison county, in April, 1826, against Charles Betts, to recover a balance remaining unpaid on a sealed note, made by him op the 20th of February, 1S22, for the sum of #4,477 40, payable to the plaintiffs, eight months after date. The defendant pleaded payment, and it was agreed that any special matter might be given in evidence.

G. M. Gullett, as bearer, brought an action against J). H. Lewis, in Montgomery Circuit Court, to recover the amount, of a promissory note made by him, payable to ono ■McBrydeor bearer, for $150. At September term 1828, the jury found a verdict for the defendant under the instruction given by the Court on the facts proved, which were as follows: The plain tiff rested his case on the production of the note.

Ose Scales made a promissory note for $2S8, dated the -’•Oth of August, 1826, and payable to Malone & Co. one day after date, in current money.

Hunt and Norris, copartners, declared in assumpsit in Marengo Circuit Court, against Ed. Chaudron, alleging that the defendant had executed his promissory note on the 4th of June, 1825, promising to pay to the plaintiffs or order, #155 71, on the 1st of January, 1826, and averred that the note “was lost by misfortune, as appears by the affidavit here produced and shewn to the Court.” At the time of the issuance of the writ, an affidavit was filed, in which one of the…

In February, 1828, John Blevins made his promissory note payable on the 25th December, to one J. Hutchison, for $380. On the 4th of March, 1828, Hutchison indorsed the note to Uriah Jordon, and on the same day Jordon indorsed if. again to George Phillips. In March, 1829, Phillips brought his action of debt in Shelby Circuit Court, against Blevins and Jordon, under the provisions of the act of 1828, which requires the maker and indorser to be joined in the same action.

Covenakt. The action was brought to the spring term IS23, of Madison Circuit Court, by L. Wilkinson against J. W. Jones. To the declaration, the defendant pleaded several special pleas, to which there were no replications filed, and no issue was joined.

In the Circuit Court of Shelby county, Allen Bullard brought an action of trover, against Smith L. Young, for the conversion of a certain quantity of flour, received by him of the plaintiff.

In Lauderdale Circuit Court, Stevenson declared in assumpsit against Findlay & Buchannon, for goods sold, work and labor, money advanced, and an account stated, charging them as copartners under their firm name. At the trial, at the fall term, 1828, under the general issue, a verdict was found for the plaintiff.

Assumpsit in Madison County Court, by Jesse Searcy against'Martin, Bradley. & Co; The action was to recover a balance claimed on a written agreement, made by the defendants, Martin, Bradley, & Co., on the 14th May, 1825, by which they promised to pay to one G. D Taylor $450, for the rent of a store house occupied by them, for twelve months, to commence on the 8th of July next after the date. The instrument was assigned by Taylor to Searcy.

Whit of error, from Marengo Circuit Court. The defendant in error, moved for ajudgment of affir-mance on certificate, against which the plaintiff shewed cause and asked leave to dismiss his writ of error, with a view to prosecute another; he made known to the Court by affidavit, that “shortly before the meeting of the Court,” to which the writ of error was returnable, “Russell informed the affiant, who is attornej^ of the plaintiff, that said cause had been compromised…

The President, Directors & Co. of the Tombeckbee Bank, gave notice to J. H. Draughan, that a motion would be made against him, at the… Held: on the first Monday in January, in the year of our Lord one thousand eight hundred and twenty-seven, in a certain cause, wherein Peter Randon, James H. Draughan David Randon were plaintiffs, and the President, Directors & Co. of the Tombeckbee Bank were defendants in error, it was by said Supreme Court considered, that the judgment…

SpeNCRR Adams Jr., by his attorney, produced in this Court, the certificate of the Clerk of the County Court of Dallas county, shewing that a final order had been made in the Orphans’ Court in said county, appointing guardians for Spencer Adams Sen., who had been regularly adjudged non compos mentís; and that an appeal f.o Court had been claimed from this order by the counsel for the defendant, which was allowed by the Judge of the Orphans’ Court.

On the 6th of January, 1829, James Hogan, as surviving partner, sued out a writ in debt, returnable to the April term of Fayette Circuit Court, against.!. & A. Odam, to answer in a plea that they render unto him the sum of $38 21, which to him they owe and from him unjustly detain, to his damage $50. The writ was indorsed to recover of the defendants, on a note made by them to the plaintiff for $38 21, due the 19th day of June, 1823.

Tins was a writ of error from the Circuit Court of Greene county. Thomas Noel had instituted an action of trespass to try titles in that Court, against William .Tinkins, to recover the possession of a tract of land, and damages for the detention.

W. Crenshaw, J. B. Earle, J. Childress and G. S. Gaiiíes, as survivors of C. Lefebvre Desnoettes, Commissioners of the town of Demopolis, brought an action of assumpsit in Shelby Circuit Court, against Charles Mun-dine, to recover the amount of four promissory notes made by him and one J. Howard, dated June 4th, 1819, payable to “the Commissioners of the town of Demopolis,’51 and falling due at different periods.

Robinson and Davenport sued out an original attachment in Tuscaloosa Circuit Court against Daniel Stow, trading utider the style of Stow, Ellis & Co., he being a non-resident debtor. The attachment was returnable to the fall term 1827, of the Court. The debt was levied in the hands of George Starr, who was summoned to appear and answer as a garnishee to declare how much he was indebted to Stow, the defendant in the attachment.

This was a bill in Chancery, filed in 1817, in Madison Circuit Court, by William R. Paulling against James A. Sturgus, and his two sons, William F. Sturgus and James B. Sturgus, and against William Pope jr. his son-in-law.

This was an action of debt originally brought before a •justice of the Peace of Marengo county/by B. H. Spann against R. Reagh, to recover a penalty of $20, given by statute for marking an unmarked hog of the plaintiff. The Justice having rendered judgment for the plaintiff, the cause, together with fifty one other cases of the same kind* \vas carried by certiorari into the County Court of Ms-rengo, on the pc;tilion oí Reagh.

This was an action of scire facias tried in the Circuit Court of Madison county, in which F. E, Rives was plaintiff, and W. Sanders and J. Fenwick were defendants.

This was an action of assumpsit tried in Madison Circuit Court at November term 1828, before Judge Perry.

Aquilea Seay was indicted in the Circuit Court of Mobile county, at March term 1S30, for larceny, and for bringing property to that county stolen by him in Georgia. The indictment contained five counts.

John M. Caldwell made a motion in the Circuit Court of Madison county against JohnP. Neale as Sheriff of said county and his securities, for judgment against them for failing to return an execution in favor of the plaintiff, which bad been delivered to him.

Assumpsit in Tuscaloosa Circuit Court by A. Duff against T. Ivy, to recover damages for a breach of warranty in the sale of a negro. At September term 1828, the cause was tried.

Samuee St. John Jit-, brought this action and several others in the Circuit Court of Washington county, against the President, Directors and Company of the Tomheckbee Bank, to recover the. amount due by a large number of the notes of said Bank held by him. The proceedings were instituted under the act incorporating the Bank, by notice and motion.

At the spring term 1828, of Lawrence Circuit Court, Hugh Warren, administrator of George Kauck, declared against James Perrine, in debt, on a promissory note, made by said Perrine to his intestate, in his lifetime. The defendant pleaded non detinet, with notice that at the trial, he would give in evidence, and insist by way of setoff, on several demands due said defendant by the decedent at the time of his death, and specifying them particularly.

1st 1S25, G-. Moore filed his .bill in Chancery, in Madison Circuit Court, against R, Rial, He charged, that i.n 7.515, he executed his bond to said'Dial, as guardian- of 6a* briol M. Clarke and Newton D. Clarke, in the penalty of $200, with a condition as follows: “The condition of the above obligation is such, that whereas the said G. Moore promises and binds himself to make unto the said Robert Dial and Elizabeth Dial his wife, or the longest liver of them, a life estate…

This was an action of assumpsit brought by R. Griffin againstT. Goodman in Tuscaloosa County Court, to recover on a note made by Goodman and one L. Myrick for $202 39, payable in June 1825, to R. Cheatham, guardian &c. or bearer; and of which the plaintiff was the bearer.

Iir December, 1828, J. McMillion filed a bill in the Circuit Court of Tuscaloosa county, sitting in Chancery, against C. Pigg and W. M. Marr, praying an injunction and relief against a judgment at law, which had been rendered against him in the County Court of that county, in favor of Marr.

This was an action of Trover, brought by J. Johnson, as administrator of S. Ramsey, against W. Wren, for the conversion of eleven slaves. The writ was returned to the fall term 1827, of Dallas Circuit Court. The plaintiff declared as administrator, and made proiert of letters of administration, granted to him on the estate of Ramsey, in Abbeville district, State of South Carolina, on the 20th of October, 1824.

This was an action of debt, commenced in the Circuit Court of Lauderdale County, in April, 1828, by Ely, against Boddiá.

In this case, the record was filed by the defendant in error, and he now moves for an affirmance of judgment for the want of an assignment of errors. The plaintiff insists that the record was not filed by his counsel, and that the defendant has no right to file it and tax him with the costs.

At the spring term 1826, of Tuscaloosa Circuit Courl> J. S. Wallace declared against J. McMillian, in an action of assumpsit, on a special contract reserving rent. Besides the special count, the declaration contained one for use and occupation, and the common counts.

This was an action of trespass to try titles, brought by Eddins against Hamner, in the Tuscaloosa Circuit Court, to recover possession of a tract of land, described in the writ as the “west half of the north west quarter oí section one, township twenty two, range ten west, of Coffee’s survey, in the Tuscaloosa land district.” The declaration contained four counts. In the first count the land was described as in the writ.

Rufus Sewall, by his counsel, filed his petition in this Court at this term, setting forth that at the April term, 1828, of Mobile Circuit Court, he had entered a rule against James P. Bates, then Sheriff of that county, requiring him to shew cause why he should not be held as special bail for the defendant in a suit therein pending, in which the petitioner was plaintiff, and one Daniel Stow was defendant; that the motion was heard and the Circuit Court determined that he…

Jakes Sneed, brought an action of assumpsit in Tus* caloosa Circuit Court, against M. Barringer and S. Rhodes, as copartners, for damages for the non-performance of a contract in writing, which he alleged was lost,’and of which he produced a copy as follows: “An article of agreement between James Sneed of the one part and Matthew Barringer of the other: witnesseth, that the said Matthew doth agree to load James Sneed’s boat to Mobile with corn, at the rate of twenty five…

This was an action of assumpsit, tried in the County Court of Shelby county, at August term, 1828. The action was brought by A. Naish against D. Meredith, to recover $200, as a balance of purchase money due by Meredith on a purchase of land.

This was a writ of error from the Circuit Court of Pick-ens county, sued out by P. Naylor, to reverse a decree rendered by that Court, in favor of Phillips, on a bill filed by him against Naylor. The writ of error issued the 10th of November, 1829, and was returnable to the January term, 1830, of this Court.

Offa WilsoN, as administrator of Henry M. Wilson, deceased, instituted an action of assumpsit in Shelby Circuit Court, in 1S27, against Joseph Walker, to recover on a note for §1200, made by the defendant, dated at Washington City, January 22, 1823, and payable on or before the 10th of April next, thereafter, to the order of Henry M. Wilson.

<p>A debtor agreed with his creditor that a slave should be sold at a constable’s sale, and purchased by the creditor; that the property might be redeemed, and when redeemed it should belong to the son of the debtor as a gift from his father. It was held;</p> <p>1. That the delivery to the creditor was a sufficient delivery to the son to constitute a valid gift by parol, and that when redeemed, the property belonged to the son.</p> <p>2. TIiat the father, having no interest, was a competent witness to establish the agreement, in an action by the son against the creditor.</p> <p>3. That a sufficient amount of hire, received by the creditor, redeemed the slave under the contract.</p> <p>4. In detinue against one sued individually, it is no defence that the defendant is an administrator, and that the conversion was by him only as suoli, and jointly with a co-administrator who is not sued.</p> <p>5. The jury are to determine the value of the property, and where it was not proven, to sustain their verdict, it was held they might lawfully have drawn the inference of the value from proof of the price of the hire.</p>

AN original attachment was issued by a Magistrate in Perry county on the 5th of February, 1827, against the goods and chattels of Isaac Brown on the complaint, made on affidavit, of'Oliver Massey, “that1 the aforesaid Isaac-Brown is removing himself and property out of the ty of Perry privately, so that the ordinary process of law cannot be served on him.” The attachment was levied -on a negro.

This cause was brought here from the Circuit Court of Madison county, by appeal to reverse a final decree rendered in that Court, on the Chancery side, at November term, 1828, by the Honorable Sion. L. Perry.

This was a writ of error from Pike Circuit Court. Foley, “as administrator of John Green,” sued Warren Green in debt, and recovered. Green sued out his writ of error, and the writ of error did not describe Foley in his representative character, but describes him individually merely.

The President, Directors & Co. of the Tombeckbee Bank, brought an action on the case returnable to the spring term, 1827, of Monroe Circuit Court, against.

Ox the 87th September, 1S34, James H. Draughan, executor of Robert Draughan, deceased, filed his bill in Chancery against Daniel Bozman, Philemon Bozman and Jacob 'Hollingsworth, in Monroe Circuit Court.

This was a Chancery proceeding, in which five several Mis were filed in Madison Circuit Court, by John Brahan and William Atwood, for the purpose of obtaining relief against a judgment which had been obtained against them at law in said Court by N. Ragland, at September term, 1821, for the sum of @1837 34, which was affirmed in the Supreme Court with @183 damages, with costs; and which was sought to be enforced against them for the use and benefit of Simon Turner, as was…

FRIERSON made a note payable to Thomas English, or bearer, on which a suit was brought before a justice of the peace in Tuscaloosa, in the name of English, for the use of Italpha Blakesley, and judgment by default was rendered for the plaintiff.

This is an action of assumpsit, brought by Stephenson & Johnston, in the Circuit Court of Franklin county, against the plaintiff in error, as the indorser of a specialty, for the payment of $604 47-100, payable immediately.

Boyd sued McCrory in trespass, in the Circuit Court of Madison county. At the appearance term, the time for filing declarations was extended. After the expiration of the time for declaring as extended, McCrory claimed an office judgment of non pros. At the subsequent term, this judgment was set aside by the Court below, on a shewing of what it deemed a sufficient excuse for not declaring within the limited time, and the plaintiff was permitted to proceed in his suit.

Miller recovered iti the Circuit Court of Limestone county, $1,000 damages of Smith for slander. Smith sued out a writ of error, to carry the case to the Supreme Court for revision, after which, and before any further step in the case was taken by eilher party, Smith made Overtures to Miller for a compromise.

The defendants in error were plaintiffs below, as indor-sers of a promissory note. The note was drawn by Bond, the plaintiff in error, payable to Stow, Ellis & Co., by whom it was indorsed. The action was assumpsit, brought by Hills & Fay, to the Circuit Court of Mobile county.

Since the repeal of the statute, which exempted executors and administrators from liability, for not pleading or mis-pleading, Emanuel broughtsuit in the Circuit Court of Mobile county, against Garrow, as executor of Brooks, and obtained judgment by default, on which execution issued, and was returned “no property found.” Afterwards Emanuel brought an action of debt, to the November 1827, of the same Court, upon that judgment against Garrow, in his individual character,…

This was an action of assumpsit, brought by Samuel Acre against Jack F. Ross, as surviving administrator of Turner Starke, deceased, to recover for professional services rendered his intestate in his lifetime, by the plaintiff as an attorney at law. The writ was returnable to a special term in February, 1827, of Mobile Circuit Court.

J. S. WilsoN brought an action of assumpsit in Mobile Circuit Court, against Torbert, as a copartner of the late mercantile firm of J. A. Torbert & Co. of St. Stephens,, Alabama, which was composed of Torbert and one J. N. Simpson. The cause of action was a bill of exchange for $650, dated at New Brunswick, the 1st June, 1820, payable to Wilson, six months after date, drawn by Simpson on J. A. Torbert & Co. and accepted by the firm.

A. McGee brought an action of trespass to, try title, against A. and W. Eastis, in the Circuit Court of Jefferson county.

Thkee attachments were sued out from a justice’s court of Montgomery county, by the plaintiff McDaniel, against one Miller, and levied on a cotton gin, the running gear thereof, and a packing screw, as the property of said ler, ail of which was claimed by the defendant Moody, as belonging to him. The justice thereupon issued a writ of venire facias, summoning a jury, before whom the title was tried, and who found the property suqjectto the plaintiff’s executions.

An action of assumpsit was brought in the Circuit Court of Monfgomery county, by Phineas Davis & Co., against Campbell, who had indorsed to them a promissory note, in the following words: “I assign my interest to ihe within note to Phineas Davis & Co., holding myself liable for the within, should the maker fail.” The declaration was in the usual form of those upon notes indorsed in the ordinary way, averring the refusal of the maker to pay.

This was a suit commenced before a jusiice of the peace in Pickens county, in the name of Thomas Wooldridge, ■junior, for the use of Thomas Wooldridge, Senior, 1o recover the amount'of an order drawn by the former in favor ■ot the latter, on Moffet, one of the plaintiffs in error, and accepted by him. The justice rendered judgment for the plaintiff below, and Moffet appealed to the Circuit Court of said county, giving Singleton as his security in the appeal bond.

Parmer made his promissory note for forty dollars, payable to one Cook or bearer, who passed it to Ballard, and afterwards absconded. Several attachments were sued from a justice of the peace, against Cook, by one of his creditors, and Parmer was garni.-heed, and judgment was rendered against him for the amount due on said note, which he satisfied, having no notice of its assignment.

This was a proceeding by scire facias, in the County Court of Lauderdale county, in the name of John and Thomas Simpson, surviving partners of Alexander Me* Fadden against David Brown. Brown had become security in a bail bond, required of the defendant in an action of debt by said partners against William Ii. Middleton, previously commenced in said Court, and prosecuted to judgment against said Middleton.

Barber obtained three judgments against Gamble, before a justice of the peace of Greene county, two of #40 S4 each, and one of #21 93, amounting in all, to #103 61.

This was an action of covenant, commenced in the Circuit Court of Lauderdale county, by Ihe defendants in error, as surviving partners of Alexander McFaddin, against the plaintiff in error, founded on an instrument, of whi.'h the following is a copy: “On or before the fir.-t day of January, 1S25, I promise to pay John Simpson & Co. the amount of a note of hand under seal, given by me to Geoi'ge F. Huber, for seventy four dollars, fifty six cents, together with costs of suit…

In this case, the attorney general moved for a certiorari to bri-'.g up a transcript of the venire, and the entry cf the Court of Dallas county, shewing that the jury were summoned, and that the grand jury who found the indict-mcnt. were regularly drawn. ' 0

In the County Court of Madison, McCausland commenced an action of debt against J. Drake, as maker of a promissory ■ note under seal, which had been assigned to the plaintiff by Polen, the payee. Another action of debt was brought by the plaintiff at the same time, on alike strument, made by A. Drake to Polen, which had been assigned to him: and the pleadings of the one, by agreement of counsel, answered to both cases.

Bell and Woodfin executed several notes to- Boyd, upon which suit was brought, and all had been satisfied but one, whereon judgment had been rendered by a justice of the peace of Madison county, for 049 34. Upon this judgment an execution was issued, and levied on a negro slave, as the property of Bell; and to whom, claim was made by one Milikin.

CoveNAnt. In the Circuit Court of Madison county, ■Childress commenced suit against M. Weaver, as administrator of W. Weaver, deceased-, upon an instrument tinder seal, entered into by Childress and W. Weaver, in July, 1819, in thefollowing words, vi!z: “Know all men by these presents, that I, Vaulton Childress, of &c. have this day bargained and sold unto William W. Weaver, a certain tract of land, lying &c. and have agreed to take eight hundred and fifty dollars for the…

This was a writ óf error, sued out by Thomas Mayfield, guardian of Nancy Murphy, to reverse the decision of the Judge of the County Court of Madison county, made at June term, 1S29, on the hearing of a petition filed by Mayfield in that Court, against Thomas Clifton.

This was a suit in Chancery, commenced in the Circuit Court of Tuscaloosa county, by Calvin, Gideon, and Eliza Morgan, complainants, against George Morgan, Boyd & Suydam, David J. Boyd & Co., Weyman & Clark, and Lawrence & Keese, defendants.

This case brought up for revision, a judgment of the Circuit Court of the county of Monroe, rendered against the plaintiff below, who is also plaintiff in error, at October term, 1S28.

The plaintiff brought suit before a justice of the peace, upon a bond entered into by one Nixon, with the defendant and several others as securities, of which the condition was, that «if said Samuel Nixon shall well and truly personally appear before the said James H. Wood and John Thomas, 0n the 17th day of November next,” &e. “and then and there make surrender of his property or effects, for the benefit of his creditors, in such manner as is now provided by the laws of…

At the March term, 1830, of Lawrence Circuit Court, a motion was made by Gregg, the high sheriff of that county, for judgment against Cary, as his deputy, for failing to pay over on demand, one hundred and twenty one dollars, and fifty and one fourth cents, which had been adjudged December term,, 1827, of the County Court of Law-in favor of D. Wallis against W. Scott, which he alleged had been collected by said Cary, and not applied to the satisfaction of said judgment; on…

This was an action of debt., first instituted before a justice of the peace for Dallas county, upon an order or decree of the Orphan’s Court of that county, directing the payment of a sum of money by R. C. Morrison, plaintiff in error, as administrator of Allen Orr, deceased.

An action of debt was commenced in the Circuit Court of Lauderdale county, by Blow against Craig, upon a writing obligatory, executed by the Lifer to the former, for V? 1,050 50. The writ was returnable to April term, at which time the defendant, Craig, filed three special pleas in bar; the first alleging a failure of consideration; the second, facts averred to constitute a failure; and the last, a fraud in procuring said writing.

It appears from the exemplification of a record of the Circuit Court of Montgomery, sent to the county of Au-tauga, (hat at March term, 1829, of said Court, a bill of indictment was preferred against Coleman Williams, for the murder of Silas Gorce, which commenced as follows: “Indictment. The State of Alabama v. Coleman Williams. The State of Alabama, Montgomery county, Circuit Court, March term, 1829.

On the 21st day of January, in the year 1829, Arrington brought an action of assumpsit, founded upon a promissory note for $600, against one Hill, as the maker, and Chapman, as indorser thereof to Arrington, the plaintiff below. The writ, with a branch thereof to Mobile county, which was executed on Chapman, was returnable to the March Term', 1S29, of the Circuit court for Clarke county ; there was no return as to Hill, and the declaration filed was against them jointly.

In the Circuit court for Wilcox county, Taylor brought an action of trespass on the case, against Bethea, to recover the value of a horse, alleged to have been shot, through the negligence of the defendant below.

On the 15th day of September, in the year 1827, Ferguson, for the use of De Jarnette, brought an action of debt against Hill, founded upon a promissory note, for @160, payable to Ferguson, and which was never transferred, by an indorsement, to any one. The writ was returnable to the November Term, 1827, of the Circuit court, for Bibb county.

Cleveland, A. Carson, sen and H. Brantly, as executors of David Carson, dec’d, brought, an' action of debt) in the Circuit court of Dallas county, against Chandler, founded upon a promissory note, executed by him to the plaintiffs’ testator.

Writ of error, from the Circuit court of Monroe county. — • It appears, from the record, that while this suit was pending, in the court below, the parties agreed to submit all matters of difference between them, to arbitration ; that, Davis, the defendant below, entered into a bond, to M’Connel, in the penalty of ten thousand dollars, by which he bound himself to perform the award, which the arbitrators should make.