Volume 3 — Stewart & Porter's Alabama Reports (1831–1834)

' The defendant in error, being declared against in the Circuit court of Mobile, made the usual application for a change of venue. The court below ordered the change to the county of Clark; and the plaintiff resorted to this court, praying its interference, by mandamus.

<p>1. The statute of this State, on the subject of allowing a party his own oath, where the amount in controversy is twenty dollars, or under, is an innovation of the common law. ,and must be strictly construed.</p> <p>2. If an amount claimed by a defendant by way of an off-set to a suit, be more than twenty dollars, he cannot testify in regard to it, unless he relinquishes the excess.</p> <p>3. An off-set is not available, if it appears to be the subject off a suit, pending when offered.</p>

A summary proceeding was instituted in the County court of Shelby, against Nabors, as tax collector, and his- securities. ' They were required by the notice, “ to appear at court, for failing to pay o.ver the amount of the county and'extra tax, belonging to the county of Shelby, for the year Í829.” The notice was served bj the sheriff.

In error from Marengo Circuit court. This was a judgment obtained in the court below, by Craig, a constable, against the plaintiffs in error, on a bond which had been given by them to the said Craig, indemnifying him for selling property under execution.

This case was brought up from the Orphan’s court of Mobile, by writ of error; and the only question referred to the delenninalion of this'court, was, as to the right of the brothers and sisters of the half blood, or of nephews and nieces of the whole blood, to take the estate under our statute of distribution.— The Orphans’ court decided that brother., and sisters of the half blood were to be preferred ; which was the cause assigned for the reversal of the decree.

This was an action of assumpsit, prosecuted by the plaintiff in error, on a promissory note. The note had been executed by Toulmiu, in favor of Robert. and William Armstrong; by the payees transferred, in blank, to one Chandler, and by him assigned to the plaintiff. As a defence, Tonltnin insisted on demands, subsisting in his favor, against Chandler, previous to the assignment from Chaudler to the plaintiff.

<p>1. Where, in trespass to (ry title, the plaintiff adduced a regular cham of legal title, in himself, sufficient to insure his recovery; (unless impeached for fraud or opposed by paramount title:) and the evidence offered in defence did no't resist a recovery on these grounds, but was clearly inadmissible — held, that the appellate court was not bound to reverse, merely because the court below gave instructions, which may not hare been perfectly correct, it appearing they could not have prejudiced the defendant.</p>

This case came up, on exceptions to the decision of the Circuit court of Dallas.

In error from Montgomery Circuit court. This action was instituted on a- verbal promise by the plaintiff in .error to pay an amount due by Shaw & .Black, to Smith, the defendant here. Shaw & Black entered into a special contract to build a house for Tompkins, in which' agreement, the former stipulated to find the proper assistants to complete the work.

On points reserved from Monroe Circuit court. This was an indictment against Hawkins, for committing an assault on Odum, with intent to kill, and murder. The jury found the prisoner guilty, and assessed his fine to fifty dollars, and also, assessed his imprisonment to forty-five days. The court gave judgment for the fine, committing the prisoner to prison, until the same should be paid, with costs.

In error from Mobile Circuit court. On the 17th April, ,1827, Rufus Sewall issued an attachment in his favor, ágainst Daniel Stowe, as an absconding debtor, for fourteen thousand dollars.'— There was no specification of the cause of action, either in the affidavit, or .on the writ; but, simply that Stowe was “ indebted, fourteen thousand dollars, and that he so absconds,” &c. The attachment was made returnable to the November Term, 1827, of the Circuit court of Mobile…

This was an action of detinue, in Dallas Circuit court, for slaves, brought by Mitchell and others, against Mitchell. The plaintiffs relied on a deed of gift from their ancestor. They offered in evidence what purported to bo a copy of the deed, certified by the Clerk of the Gnperior court of Wilkinson county, Georgia, to have been tru!jr transcribed from the records in his office.

This was a suit in Chancery, in Dallas Circuit court; to compel a settlement and disclosure of partnership accounts. The bill was filed by Simpson, in his own right, and as the administrator of William Read, deceased, against M’Laughlin — all co-partners of'the late firm of M’lfaughlin, Read & Simpson. A decree was had in favor of the, complainant ; and the case, by writ of error was brought into this court..

This was an action of debt, in Greene Circuit court, brought by the defendant in error, upon a promissory note. The facts of the case disclosed, that the note sued on, had been executed in consideration of the purchase of real estate.

The plaintiffs below, the heirs of Eslava, declared •in Mobile Circuit court, against Hallely in the action of trespass to try title. ■ The subject in controversy was a lot of land, lying in the town of Mobile.— Both the parties claimed, under certificates of confirmation, issued by the Land Office, under the act of the Congress of the United States, confirming claims to lots, in the town of Mobile.

This case was originally a motion against Neal, sheriff, prosecuted in Madison Circuit court; and the cause of action was the failure of Neal, to return an execution, which had issued on a judgment obtained by the plaintiff jn error, against Ilobinson.

This was an action of assumpsit in Tuskaloosa Circuit court, by the defendants in error,- against Jones and others, joint owners of the steam boat Warrior. ' The plaintiffs declared for a breach of undertaking, by bill of lading, to convey certain cotton to the city of Mobile; but which was lost, as was alleged, by the carelessness and negligence of the master of the said boat.

This was an action of trespass to try title, commenced by the defendant in error, in Mobile Circuit court, to recover possession of a lot of land, situated in the town of Mobile. A verdict and judgment being had in favor of the pl.aint.iif; Lewis, on exceptions, brought the case into this court.

This was ah action for goods, sold and delivered, and was brought in Mobile Circuit court, by Leeds, against Rhodes. The plaintiff, to sustain his action, proved, that the defendant had requested one Williams to write to the plaintiff, and induce the kilter to furnish one Dobson with the goods; for which he, the defendant, would pay.

This action was trespass on the case, in Mobile Circuit court, commenced by Slodder, in his lifetime, upon an agreement, in writing, whereby Roberts agreed to pay to the former, a certain sum of money, in consideration of the transfer, to the latter, of the unexpired term of' a lease-hold estate.

In error from Mobile Circuit court. This was a proceeding by scire facias, against bail, issued on the plaint of the defendants in error, against Toulmin, the bail of one Sheridan, The defendant filed his plea in bar of a recovery under the scire fa-cias, averring that the defendants, (plaintiffs in the original suit,) had not given security for costs on taking out their writ for hail, as required by statute.

This action was debt, by Bennet, in Morgan Circuit court. The note of Robinson, the intestate, was the cause of action, and the plea of his administrator was, that his intestate had not executed the note declared on. The note appeared to have beén attested, by the present plaintiff, Bennet, as a subscribing witness : it was made payable to one Hacket, and, by him, indorsed to Bennet, after its execution.

■ This was as'sumpsit in Morgan County courts by tlie plaintiffs in error, for goods, wares, and merchandise. A verdict was had for the plaintiffs, which was set aside, by the court; and a new trial granted. On a-second trial, the defendant pleaded puis dar-rein continuance; that the estate of his intestate had been declared insolvent, pursuant to. the statute.

Ths plaintiff below, M’Rclc, declared in assump-sit, in Tuskaloosa County court, against the defendant there, as indorser of a promissory note.

<p>1. Chancery will not decree the sale oflands, in satisfaction of a judgment, where it appears that the estate in such.lands, is the subject of execution at law.</p> <p>2. As where a bill was'filed against a party defendant to certain judgments of a justice of» the peace, praying the sale of the life estate of the defendant, in certain lands, in satisfaction thereof — held, that the life estate of the defendant, was subject to levy, by a constable, under our statute — and, so the bill not sustainable.</p>

This was an indictment, in Pike Circuit court, for negro stealing; in which the prisoner was found guilty. On the following points, as novel and difficult, the case was referred to this court.

This'was a suit in debt, in Limestone Circuit court, on the bond of Coalter, the executor of Chapman, to recover from French, the surety of Coalter, the amount of a distributive share, in the.estate of said Chapman. The record showed, a settlement, by the County court of the accounts of Coalter; but there was no decree of the Orphans’ court, declaring the amount of the distributive fund, the names of the parties entitled thereto, or the specific amount due to each.

The plaintiffs in this action, declared in assump-sit, in Mobile Circuit court, on the common money counts: and on the trial, judgment was rendered in favor of the defendant.

This case was founded on a proceeding in Mobile Circuit court, by scire facias, against bail. The record brought up, bv error, in favor of the defendant below, showed a judgment against Clements, the bail, on plea withdrawn. The question was, admitting the scire facias, to be defective, could it be reached in error, after a judgment on plea withdrawn.

In this case, Barton, the surety of John M’Kinney’s executors, having executed a bond to the defendants in error, under a notice, issued under the statute, requiring security for costs, a judgment, on motion, on the bond, was rendered against him, in Tuskaloosa Circuit court.

This was a bill in Chancery, filed by William's, in Tuskaloosa Circuit court; the object of which, yvas to enjoin a judgment at law. The facts, material here to be stated, were, that Williams, having executed a note to Berry, for nine dollars, the latter, for the use of Wright, recovered a Judgment thereon, before a justice of the peace; which judgment was, afterwards, _affirmed, by the Circuit court, on appeal.

Ia error from Madison Circuit court. In this case, the plaintiff in support of- his action, below, offered to read the deposition of a witness, taken under a commission, as directed by the statute. ' The defendant objected, on the ground of thé insufficiency of the affidavit, upon which the commission had issued : and the particular objection was, that the residence of the witness was stated to havebeen in “the city of New York;” and, it was said, that this was no showing,…

This was a bill filed on the Chancery side of Monroe Circuit court, by the plaintiffs in error; the object of which was to obtain an injunction against certain judgments at law, rendered against the complainants. The bill charged certain .payments, to the agents or attornies of the defendants, upon the judgment of the latter against the former: together with other facts, not material in the history of the case — as it was decided.

This action was commenced by the harbor master of the port of Mobile, before a justice of the peace, to recover a tonnage duty of three cents per ton, as laid by the act of 1822, on vessels entering Mobile harbor. The judgment rendered by the jus-> tice, in favor of the defendant, was affirmed by the Circuit court, and was removed to this court, by writ of error. The question was upon the constitutionality of the act.

Quesenberry was indicted in Jackson Circuit court, for the murder of one Lewis; and was found guilty, and condemned. In relation to questions of law, raised in the progress of the trial' the Circuit court reserved the points, as novel and difficult.

This was a proceeding in garnishment, under the statute, in Madison circuit court, requiring the plaintiffs in error, as executors of Jones, to answer as to the indebtedness of their testator’s estate, to one Wilkinson. The process of garnishment was served on Terry alone, who answered, and upon'which judgment, on yerdict, was rendered agaiust both executors, as administrators.

This action was case, in the nature of deceit, commenced by the plaintiff in error, in Lawrence Circuit court, for fraudulent representations as to the value of a slave, sold by the defendant. The slave had been purchased under a bill of sale, containing a general warranty of soundness of the title, and of the body and mind of the slave; and of being a slave for life.

In error from Madison County court. This was a proceeding under attachment, before a justice of the peace of Madison county; and a judgment was there liad against, the defendant in error.

This,was a bill in Chancery, filed by the plaintiff in error, on the chancery side of Madison Circuit court.

This was a motion, submitted to the court here, for the dismissal of the writ of error, in this case, because the citation had ■ been directed, by the clerk, to' the coroner, to be executed, no part of the record showing the sheriff to have been a party in interest ; or in any way incapable of executing the citation.

Motion to dismiss the writ of error, in this case, on the ground, that co-defendants were not embraced in the writ. The case was in chancery; and/ although the defendant’s attornies were named in the bill, the decree was alone against him.

A motion whs submitted to the county court of Madison county, on the part of Prout, one of the defendants in error, to quash an execution which-had issued against him, on a judgment of that court.— Brahan, under a statute of this State, had become the surety of Prout, and the motion to quash was made on a parol showing of its payment, by the surety.

This was au action of debt in the Circuit court of Limestone, and was instituted by the plaintiff in error, for the use of the guardian of Martha Chapman, against the defendants, on the bond of Coalter, as executor. A distributive share, in the estate of Chapman, had been declared in favor of Martha Chapman; and the non-payment of this amount, was the breach. assigned.

This action, being debt, was brought by the defendant in error, in the circuit court of Lauderdale, to recover the amount of a judgment rendered against the plaintiffs, in Tennessee, by a justice of the peace. The court below, rendered judgment in favor of the defendant in error; and on that decision the case was brought here.

This was an action of assumpsit, ia Dallas Circuit court, instituted by the defendants in error, as the administrators of Edmund Lane, The cause of action was a prommissory note, for .the sum of nine hundred and tea dollars, .which had been executed' in part consideration of the’purchase of real estate, of the intestate, sold by the administrators. The declaration was in common form, and the general issue pleaded.

This action, being in debt, in Madison circuit court, was commenced by Phillips, Ihe administrator of Ann Hancock, against the defendants, the executor anti’ executrix of Mills Ely. The cause of action was a penal bond, executed by Mills Ely, in his lifetime, conditioned for the payment,'to one Wilson, of seven hundred and fifty dollars ; which bond was assigned by Wilson to one Drew', and by the latter to the plaintiff's inféstate.

This was a proceeding, ia the County court of Franklin, on certiorari, bringing up, before that court, the judgment of a justice of the peace. The validity of the judgment was not contested, on the trial; hut it was sought to be proved, that the amount of the judgment had been paid, to one Olive, the constable. The facts were, that, after Olive had returned the execution, nulla bong,, he received frona the defendant, pork, in satisfaction of it.

In error from the Circuit court of Lauderdale. The plaintiff in error declared in debt, on a penal bond, conditioned for the prosecution of a writ of error, from the county, to the circuit court, gf that county, wherein one Brown was appellant, and the defendants, his sureties. The defendants pleaded — first, performance of the condition of the bond; and, second, that the cause had been reversed in the Supreme court.

<p>I. To authorise a reversal of a case, in the Supreme court, there must be a concurrence, by a majority of the court, in the result of a conclusion on some point, presented by the record, though the views, or reasons in arriving at such conclusion, be different.</p>

This was a motion, submitted by the plaintiff in error, to the county court of Franklin county, to re-tax the costs of a certain suit, decided between the parties, so as to exclude from the bill oh costs, the charges for attendance of such witnesses, as had not •been examined, on the trial' of said cause. The court below refused the motion, because the application came too late, having been made, at the term, next subsequent to that at which the trial was had.

In error, from Jefferson Circuit court. This was a'proceeding, under the statute, to determine the property in certain- slaves, levied on, tinder execution, as of the estate .of one Baylor; a claim to which, had been interposed, by the defendant in error. On the trial, a verdict was had, in favor of the claimant; and the plaintiffs,in execution, took a writ of error, here.

This case was originally the judgment of a justice of the peace, of Lauderdale county; and was taken .into the County court, on certiorari.

Thin was a bill in Chancery, filed in the Circuit court of Madison county, tg enjoin a judgment subsisting in that court, in favor of the plaintiffs in error. The facte of the case, as presented by the record, were, that one Tilford, being, indebted to Maltbie, the complainant below, he placed in the hands of one Lewis, the attorney of Mallbie, a note drawn by one Chunn, as collateral.security.

In error, from the County court of Tuskaloosa. This was a proceeding by scire facias, on a repie-, vy bond, taken in attachment, and conditioned for the return of the property attached. The attachment was sued out, by the defendants in error, against the estate of one Littleton Busby, an absconding debtor, as was alleged; and was re plevied by Christian Busby, who gave bond to the sheriff, as required by the statute, with the plaintiffs in error, as sureties.

David Killough declared in debt, in Jefferson Circuit court against Reuben Wade, on a promissory note, payable 25th December, 1828. The defendant plead, first, the general issue; second, a special plea, averring that'the said note had been given in consideration of real estate, and that said Killough possessed no title threto; insisting generally on a failure of consideration.

In error from Franklin Circuit court. Alexander Somerville filed a bill in Chancery, against Catherine Gillespie, setting out, that, in January, 1823, and, for some time previous, he was the co-partner of Robert Gillespie, the husband of Catharine, in the business of merchandising: that the said Somerville and Gillespie, about that period agreed, mutually, to dissolve their connection; and, thereupon, stated their accounts, whereby Gillespie was found indebted, in a…