Volume 30 — Alabama Reports

Erom the Circuit Court of Henry. Tried before the Hon. C. W. Rapibii.

<p>From the Circuit Court of Macon.</p> <p>Tried before the Hon. E. W. Pettus.</p> <p>The prisoner was indicted for an assault and battery on one William Walker, and was convicted. The charge of the court, which was predicated on the evidence, and which is assigned as error, was, that if the prisoner “drew .a pistol on the prosecutor, with the intention of shooting him, and was then within shooting distance, then he is guilty of an assault, although the pistol was not cocked or presented.”</p>

From tbe Circuit Court of Barbour. Tried before the TIon. C. W. Bapier. The prisoner was indicted by the name of Major S. Saeyrs, alias, Major S. Sawyers, for the larceny of certain bank-notes from the person of one 'William Cunningham. Tie pleaded in abatement that his true name was Sayres ; to ¡which the State replied idem sonans, and issue was joined thereon.

<p>From tbe Circuit Court of Conecuh.</p> <p>Tried before the Hon. ANDrew B. Moore.</p> <p>The indictment in this case was in the general form prescribed by the Code, page 707, No. 70. The 'defendant demurred to it, on the ground that the outhouse, at which the playing was alleged to have occurred, “was only charged to be ‘an outhouse where people resort’ at the time of the finding of the indictment, and not at the time of the alleged playing;” but his demurrer was overruled.</p> <p>The evidence adduced on the trial, is thus stated in the bill of exceptions: “The testimony showed, that the defendant played at cards, within twelve months before the finding of the indictment, in a house located in the village of Sparta in said county, which liad two rooms; one fronting on the street, with one door and window, and the other a back room. The front room of said house was used by a justice of the peace, for the purpose of keeping Ms docket and papers; but he had not held court in said room, for more than twelve months before the playing took place. "When persons came to settle cases, he took them into that room, and settlements were there made.— The back room of said house was connected with the front by a door, to which there was no shutter, and was used only for the purpose of keeping the old account-books of the firm of Bobinson & Pettibone, merchants, who had done business in another house in said village about two years before the playing took place. It was further proved, that one of the partners of said firm'usually attended the sessions of the circuit court, and, when necessary, used said back room in settling the outstanding accounts of the firm, and, in doing so, at times invited their debtors to said back room; that one of said partners visited Sparta once in two months, and at public gatherings there, and at such times stayed a day or two, and invited debtors to said back room for settlement, and used it as the place of settling said accounts. The playing by the prisoner took place in said back room, at a time when there was no court or public gathering, and when neither partner of said firm was in Sparta; the front door and window were both closed and locked, and no other person than the four or five who were playing, and who went by invitation from one who had the key of said house, was permitted to go into either room; and it was further proved, that no person could, by passing the street or other side of the house, have seen them playing.”</p> <p>Upon this evidence, the court charged the jury, in effect, that if they believed it they must the defendant guilty of playing cards in a public house; and to this charge the defendant excepted.</p> <p>The overruling of the demurrer to the indictment, and the charge of the court, are the matters now assigned as error.</p>

From the City Court of Mobile. Tried before the Hon. Ales. McKihstry. The prisoner was indicted for keeping a restaurant, or eating-house, without a license.

Erom the Circuit Court of Jackson. Tried before the Hon ¥1. S. Mudd. The prisoner, Tbomas Liles, alias, Thomas Liles Nix, was indicted and convicted for the murder of one Wallis E. Bose.

From tlie Circuit Court of Marion. Tried before the Hon. 8. D. Hale. The prisoner .was indicted for the forgery of a promissory note for $50, wbicb. purported to be signed by William Nice as maker, and wbicb. was set out literally in tlie indictment.

<p>[INDICTMENT FOE EMBEZZLEMENT AND LARCENY FROM A STORE-HOUSE.]</p> <p>1. Sufficiency of indictment in desaiiption of stolen property. — ,An indictment for embezzlement, describing the property as “certain books, letter-files, knives, bank-shears, slates, and sealing wax, to about the value of forty dollars,” is sufficiently certain and definite, under the forms prescribed by the Code.</p> <p>2. Joinder of offenses. — .Embezzlement and larceny from a storehouse may be joined, in different counts, in the same indictment.</p> <p>3. Election by prosecution under indictment containing several counts. — When an attempt is made, as manifested by either the indictment or the evidence, to convict the prisoner of two or more offenses growing out of distinct and separate transactions, the court should either quash the indictment, or compel the prosecuting officer to elect on which count he will proceed ; but,, where the different counts are joined in the indictment, for the purpose of adapting it to the different phases which the evidence as to a single offense may assume, it should not interpose in either mode.</p>

From tlie Circuit Court of Dallas. Tried before the Hou. Nat. Cook.

<p>[APPLICATION POE BAIL IN CASE OP HOMICIDE.]</p> <p>1. Indictment for homicide of slave by a-uel treatment. — Under an indictment for tile homicide of a slays’ by cruel whipping, beating, or other cruel or inhuman treatment, framed under section 3296 of the Code, the prisoner cannot be convicted of a higher offense than murder in the second degree.</p> <p>2. Sight of bail. — A prisoner, in custody under an indictment for the homicide of a slave, framed in reference to section 3296 of the Code, is entitled to bail as a matter of right.</p>

<p>[INDICTMENT FOR GRAND LARCENY.]</p> <p>3. Charge held erroneous, because invading province of jury. — A charge in these words: “If tbe jury believed that tbe defendant knew of, and was concerned in, and aided in the stealing of the copper, as set out in the evidence, then they might find him guilty, although he was not actually present at the time of the larceny,” — invades the province of the jury, and is therefore erroneous.</p>

From tbe Circuit Court of Wilcox. Tided before tbe Hon. Robert Douuherty. The indictment in this case was in the form prescribed by tbe Code.

The petitioner, being confined in tbe county jail of Macon, under the warrant of a magistrate, to answer an indictment for perjury to be preferred against Mm, was brought on habeas corpus before the lion. Robert Dough-erty, who refused to hear the evidence offered touching the question of his guilt or innocence, on the ground that he was regularly committed, after preliminary examination, by an officer having jurisdiction of the case.

AppiicatioN for a mandamus to the circuit court of Talladega, Hon. E. W. Pettus presiding, to compel the dismissal of a suit instituted by the “Montgomery Iron Works,” a domestic corporation, against the petitioner, without first giving security for the costs, as required by section 2398 of the Code.

From the Circuit Court of Dallas. Tried before the Hon. Bobert Dougherty.

<p>Appeal from the Circuit Court of Morgan.</p> <p>Tried before the Hon. JOHN E. MooRE.</p> <p>The material facts of the case are stated in the opinion of the court.</p>

Heard before the Hon. Wade Keyes. This bill was filed by the appellees, on behalf of themselves and the other creditors of Oliver Reed, deceased, against the widow, heirs-at-law, and personal representative of said Reed; alleging, that said Reed died in 1838, being at the time indebted to them in a large amount; that in October, 1838, letters of administration on his estate were granted to Jiio.

<p>[(IDO WARRANTO FOR FORFEITDRE OF MUNICIPAL CHARTER.]</p> <p>1. When information does not lie. — Ah information, in the nature of quo warranto, cannot be filed on tho relation of a private citizen, to vacate the charter of a municipal corporation, (Code, § 2654,) on account of the passage of an unauthorized ordinance fixing the price of a license for retailing4 spirituous liquors at SI,000.</p> <p>2. Security for costs. — When an information is filed, on the relation of a 2H'ivate citizen, he must give (Code, § 2655) security for the costs of tho proceeding.</p>

<p>[0BIGINA1 ATTACHMENT — CONTEST WITH GARNISHEE.]</p> <p>1. Covenant between vendor and purchaser construed. — A contract under seal, whereby a vendor covenants to make a valid deed with warranty by a specified day, and the purchaser covenants to pay the purchase-money, on the execution and delivery of the deed, in four equal annual payments, “to bo made in iron at five cents per pound, and castings at four cents per pound, to be delivered at the place or places where made with an additional stipulation, that this sum “may be discharged and paid off,” by the purchaser taking up an outstanding note against the vendor, and giving his obligation for a specified sum, payablein three equal annual installments,— confers upon the purchaser, at his election, the privilege of discharging the purchase-money in either of the ways specified; but, if he fails to manifest an election, within a reasonable time, to avail himself of the stipulated privilege, by a full compliance with its terms, the vendor can only hold him liable on the original covenant.</p> <p>2. When debt or indebitatus assumpsit lies. — Neither debt nor indebitatus assumpsit can be maintained on a covenant to pay a specified sum, in four equal annual payments, “to be made in iron at five cents per pound, and castings at four cents per pound, to be delivered at the place or places where made. ’</p> <p>3. Whai demandsmay besubjectedbygarnishment. — An attaching creditor cannot,’ by process of garnishment, reach any demand which, from its character, his debtor could not recover in debt or indebitatus assumpsit.</p> <p>4. Admissibility of parol evidence to affect writing. — In an action on a written contract, parol evidence cannot be received, to add to, contradict, or vary its terms.</p> <p>5. Issue contesting garnishee’s answer. — "When the answer of a garnishee is contested by the plaintiff, the issue is confined to a general allegation that he is indebted to the defendant, either generally, or in a larger amount than that admitted hy his answer.</p>

<p>Appeal from the Circuit Court of Fayette.</p> <p>Tried before the Hon. E. "W. Pettus.</p> <p>This action was instituted by the appellant, before the adoption of the Code, to recover the possession of a tract of land, which (he alleged) the defendant unlawfully detained from him. On the trial, as appears from the bill of exceptions, the plaintiff produced a written notice, in his own handwriting, dated April 10th, 1852, and eon-taining a demand of possession; and, for tlie purpose of proving its service on tire defendant, introduced one Cooper as a witness, who testified, that on said 10th April, plaintiff handed him a notice, in his own handwriting, to be served on defendant; that he served the notice on the same day, but did not retain a copy; “that the notice produced contained about the same matter as the notice which he served, but he did not know that it was the same, or that it was an exact copy of the same. ” The court excluded the paper from the jury, and the plaintiff excepted. The- plaintiff then offered to prove by said Cooper, “that he had handed to defendant, on the 10th April, 1852, a notice in writing, signed by plaintiff, by which defendant was notified to surrender to plaintiff the land in dispute.” The court rejected this evidence, also, and the plaintiff excepted. The rulings 'of the court on the evidence are now assigned as error.</p> <p>cited the following-authorities : Stinson v. G-osset, 4 Ala. 170; Parker v. Haggerty, 1 Ala. 632; Lesne v. Pomphrey, 4 Ala. 77; Milton v. Howland, 11 Ala. 732; Johnson v. Haight, IS Johns. 470; Leavitt v. Lines, 3N. H. 14; Eagle Bank v. Chapin, 3 Pick. 180; Hartly v. 'Wharton, 25 E. C. L. H. 276 ; Willoughby v. Carlton, 9 Johns. 136; Cowen & Hill’s Notes to Phil. Ev., vol. 3, p. 1201.</p> <p>cited Clay’s Digest, 251, § 5; McEadden v. Kingsbury, 11 Wendell, 667; Cowen & Hill’s Notes to Phil. Ev., vol. 4, n. 239.</p>

<p>Appeal from the Probate Court of Pickens.</p> <p>The appellee, as the administrator of Mrs. Winfred J-Stapp, deceased, who was the widow of Jesse Stapp,, deceased, petitioned the probate court to set apart to Mm bis intestate’s distributive share of her husband’s estate; alleging, that the will of said Jesse Stapp was admitted to-probate on the 29th December, 1852, and letters testamentary were on the same day granted to Bobert T.. Johnston; that the widow dissented from the will, within the time allowed by law, and afterwards died; that more-than eighteen months have elapsed since said letters-testamentary were granted, and that the assets in the-hands of the executor are more than sufficient to pay all-the debts and prior claims against the estate. In his-answer to the application, the executor insisted, among-other things, that the probate court had no jurisdiction of the ease made by the petition. The court held,that it had jurisdiction, and appointed commissioners to set apart to the petitioner his intestate’s distributive share of the slaves belonging to the estate. The executor excepted to the ruling and action of the court, and now assigns the same as error.</p>

<p>Appeal from the Probate Court of Monroe.</p> <p>IN the matter of the nuncupative will of Mrs. Martha Andress, deceased, which was propounded for probate by the appellee, and contested by the appellant, who had been previously appointed administrator of her estate. It is unnecessary to notice the pleadings in the cause, since the court here decides nothing concerning them. The issue being submitted to the judge, without a jury, he decided in favor of the validity of the will, ordered it to be admitted to probate, and adjudged the costs against the administrator individually. The record contains no bill of exceptions. The decree recites, that several witnesses were examined, “whose testimony was reduced to writing by the courtbut the evidence, though incorporated in the transcript, is not set out in the decree. There is an agreement of counsel shown by the record, to the effect “that all the testimony of all the witnesses examined in the case, which testimony has been reduced to writing by the judge as the same was given in on the hearing of the cause, be, and the same is hereby, made part and parcel of the record, to go up to the supreme court, in the same manner, and with the same effect, as if fully set out in the decree of the court.”</p> <p>The rulings of the court, in admitting the will to probate, and adjudging the costs against the administrator individually, are now assigned as error.</p>

<p>[final settlement of decedent’s estate.]</p> <p>1. Parties to final settlement. — The personal representative of a deceased distrib-utee is a necessary party to a final settlement of the estate; and if a final decree is rendered without maMng him a party, he may afterwards be made a party on petition, and revise the decree on error.</p> <p>2. Limitation of appeal from final decree. — Six months is the limitation of an appeal from a decree of the probate court, rendered on the final settlement of an estate, even when sued out by a person who was made a party after its rendition.</p> <p>3. Piñal decree not set aside without notice. — A final decree, in favor of distributees, on settlement of an administrator’s accounts, cannot be set aside at a subsequent term, on the petition of the personal representative of a deceased distributee, without notice to the other distributees.</p>

Tried before the Hon. C. W. BapieR. This action was founded on an open account for medical services rendered by the plaintiff, as a physician, in the State of Texas. Notice was served on him, that his license to practice medicine as a physician would be required on the trial; but he produced no license. There was no proof that the laws of Texas required a physician to have a license or diploma.

<p>Appeal from tbe Probate Court of Dallas.</p>

Tried before the lion. Nat. Cook. This action was brought by the appellee, to recover of the defendant the balance due on his subscription for stock in said company. The defendant pleaded the general issue, with leave to give any special matter in evidence.

<p>Appeal from the Probate Court of Wilcox.</p> <p>The record slrows the following facts: The last will and testament of John McBeynolds, deceased, was propounded for probate on the 4th. September, 1854, by the executor therein named, and was admitted to probate on the lltb December following. By said will, the testator directed all Ms slaves to be carried to Liberia .by Ms executor, and there emancipated ; bequeathed $8,0.00 to Ms wife, “as her full portion and share” of his entire estate, and the residue of Ms estate to the children of his brothers and sisters, to be equally divided among them; and directed his executor to sell all his lands and personalty, not otherwise disposed of, and divide the proceeds of sale among his residuary legatees. On the 5th September, 1854, the widow filed her written dissent from the will, and claimed her distributive share of the estate. On the 25th September, 1854, Joseph C. Jones and Samuel L. Jones were appointed special administrators of the estate; and afterwards, on the 11thDecember, 1854, they were appointed administrators with the will annexed. On the 1st January, 1855, commissioners were appointed by tbe court, on the application of the widow, to divide the slaves belonging to the estate, and allot to her her portion. On the 15th January, 1855, as the next minute entry recites, the commissioners made their report, “which report was confirmed by the court, and ordered to be spread on the minutes.” On the same day an order was made, on the petition of* the widow previously filed, for the allotment of her dower; and on the 19th January, the return of the sheriff and commissioners, relative to the allotment of dower, was ordered to “he confirmed, filed, and recorded.” On the 22d January, 1855, an order was made, authorizing the administrators to sell the lands, on a credit of twelve months.</p> <p>On the 14th February, 1855, tbe widow filed her petition, asking the court “to set aside the order appointing commissioners to divide the negroes belonging to said estate, and also the order made by the court on the return of the report made by said commissioners,” on the following grounds: 1st, that said proceedings were had before the expiration of eighteen months from the grant of administration on said estate, and therefore the court could not take jurisdiction of the same; 2d, that said application was made by her under the apprehension that the property of the estate, other than slaves, was not sufficient to pay her distributive share; 3d, that said proceedings, if carried into effect, would defeat the provisions of the will respecting the emancipation of the slaves, which the court had no power to do, The administrators objected to the granting of this petition, because, 1st, the proceedings complained of were had on the application of the widow herself; 2d, that said proceedings were had in pursuance of law, and had been, “in effect, confirmed by the court.” On the hearing of the petition, it was “ordered by the court, that said motion be refused, and that the report stand confirmed”; to which ruling of the court the petitioner excepted, and which is now assigned as error.</p> <p>1. The order for the division of the slaves is void, because it was made before the expiration of eighteen months from the grant of administration. — Code, § 1772. The probate court, being one of limited powers, must strictly pursue the statute.</p> <p>2. The provisions of the will, respecting the emancipation of the slaves, created a valid trust. — Atwood’s Heirs v. Beck, 21 Ala. 590; Abercrombie’s Executor v. Aber-crombie’s Heirs, 27 Ala. 489. The widow’s dissent from the will leaves it untouched, except so far as may be necessary to give her her statutory rights. — 2 Lomax on Executors, 205; Mitchell v. Johnson, 8 Leigh, 400. The condition of the estate shows that the slaves can be emancipated, the widow have her distributive share, and the residuary legatees the remainder. That the land, directed to be sold, is converted into personalty, see 2 Story’s Equity, §§ 790, 793, 1212, 1214; 2 Lomax on Executors, 220-2; 5 Barbour, 190; 2 SandforcL’s Ch. 341; 7 Barr, 287; 16 Ala. 67.</p> <p>(No brief on file.)</p>

Heard before the Hon. Made Keyes. The bill in this case, which was filed by Charles G-Coffin, as surviving partner of the late firm of Coffin & McCullough, in behalf of the creditors of said firm, alleged that said firm was dissolved in 1846, and a new firm formed, by the addition of a new partner, under the firm name of Coffin & Griggs; that the stock of goods belonging to the old firm, amounting to more than $18,000, was put into the new firm; that in 1848 McCullough filed…

<p>Appeal from the Chancery Court of Tallapoosa.</p> <p>Heard before the Hon. James B. Claek.</p> <p>The bill in this case was filed by the appellants, to obtain the rescission of a contract for the sale of certain lands, and an injunction against a judgment at law on the notes for the purchase-money. The chancellor dismissed the bill, on final hearing; but his decree was reversed on error, and the cause remanded. — See 25 Ala. 554. After the remandment of the cause, the complainant asked leave to amend his bill, so as to negative the facts set up by Culberson, in his answer to the original bill, as to the circumstances under which he acquired the ownership of the note which was the foundation of the judgment at law; but the chancellor held the amendment unnecessary, and therefore refused to allow it. The complainant further asked leave to take additional testimony, for the purpose of contradicting Culberson’s answer; alleging, as his excuse for not having taken such proof on the former hearing, that his counsel informed him that it was unnecessary, in consequence of the refusal of the chancellor to dissolve the injunction on Culberson’s answer, and to dismiss the bill for want of equity. The chancellor held the excuse insufficient, and refused to grant the motion. The complainants also moved to suppress certain portions of the deposition of one Rossen, on the ground of irrelevancy; but the chancellor overruled the motion, on the ground that it came too late. The complainant Lanier also m'oved to dismiss the bill without prejudice; which motion was resisted by his co-complainant and the defendants, and overruled by the court. These rulings of the chancellor are the matters now assigned as error.</p>

<p>[ACTIOS BY CONSTABLE AGAINST PURCHASE» AT EXECUTION SALE.]</p> <p>1. Secondary evidence of execution. — To authorize secondary evidence oí the contents of an execution, issued by a justice of the peace, it is sufficient to show by the justice that he cannot, alter diligent search, find it in his office, and has not seen it since the last term of the circuit court, when it went before the jury as evidence in another cause ; accompanied by the testimony of the circuit clerk, that he has made diligent but unsuccessful search for it among the files of his office containing the trial pax>ers of the last term.</p>

Heard before the Hon. Wade Keyes. This bill was filed by the appellees, to obtain a judicial construction of the will of Mrs.' Martha Burt, who was the mother of Mrs. McKee; also, to remove the… Held: that Martha Ann Burt, now Mrs. McRee, took an absolute estate under the will; and his decree on this point {inter alia) is now assigned as error.

<p>Appeal from the Circuit Court of Russell.</p> <p>Tried before the Hon. JOHN Q-ill Shobtee.</p>

Tried before the Hon. JOHN E. Moore. This action was brought by Barclay & Henderson against the appellant, a corporation chartered by the State of Georgia, to recover damages for injuries to certain goods which the defendant, as a common carrier, undertook to transport down the Coosa river, from Rome to Greensport; ■and was commenced by original attachment on the 23d February, 1864.

Tried before tbe Hon. JNO. Gill Shoetee. This action was brought by tbe appellant, to recover of tbe county tbe amount of an account for medicines furnished and services rendered by him, as a physician, at tbe request of tbe sheriff, to certain prisoners confined in tbe county jail.

Tried before the Hon. Robert Dousherty. This action was brought by Richard H. Oakley against Reuben Oakley, to recover the rent of a tract of land, containing seventeen or eighteen acres, for the year 1853. The plaintiff claimed the land under a conveyance from his father, Armstead Oakley; while the defendant held possession under a contract of rent made with said Armstead.

Heard before the Hon. James B. Clabe. This bill was filed by the appellant, against the inten-dant and members of the town council of Cahaba; alleging, that said town council, in January, 1855, passed an ordinance fixing the price of a license for retailing within the corporate limits of Cahaba at $1,000, and re-adopted the same ordinance in January, 1856; that complainant, having procured a State license for retailing, and being advised by his attorneys that said ordinance…

Heard before the Hon. A. J. Walker. This bill was filed by John McKenzie and wife, the appellants, alleging that, on the marriage of Mrs. McKenzie’s only daughter, in 1852, with Hiram D. Bentley, she permitted said Bentley and wife to take one of her slaves, on which her husband held a mortgage, under an agreement that said Bentley should clothe and pay taxes on said slave during the year 1853, and return her to Mrs. McKenzie at the end of that year; that Bentley and wife…

Heard, before the Hon. James B. Glare. This bill was filed by Patrick H. Andrews and wife, the appellants, against the administrator of George F. Huckabee, deceased, who was the former husband of Mrs, Andrews, to compel an account and settlement of the intestate’s trusteeship of liis wife’s separate estate, which she held under the will of her father. Huckabee and wife were married on the 11th January, 1850 ; and ITuck-abee died on the 24th March, 1851.

<p>Appeal from the Circuit Court of Benton.</p> <p>Tried before the Hon. E. W. Pettus.</p> <p>This was a real action, under the Code, in the nature of an ejectment. The judgment was by default final without the intervention of a jury. The errors assigned are — 1st, that the description of the land sued for is not sufficient to support the judgment; and,- 2d, the rendition of judgment for costs against the defendant.</p> <p>cited the. following authorities : On the first point, Bennett v. Morris, 9 Porter, 172; Eenwick v. Eloyd, 1II. & G. 172 ; and on the second point, Code, § 2218.</p> <p>1. That the description of the land was sufficient. — Heifner v. Porter & Simmons, 12 Ala. 470; Sturdevant v. Merrill, 8 Porter, 328; Huffaker v. Boring, 8 Ala. 87; Crommelin v. Minter, 9 Ala. 594 ; 3 Stew. 60; 4 Day, 448.</p> <p>2. That it must be presumed that proof of the defendant’s possession was made in the court below. — 3 Ala. 109; 16 Ala. 541; 14 Ala. 822; 3 Stewart, 339.</p> <p>3. That the error in the imposition of costs was, at most, a mere clerical misprision, which would be corrected at the appellant’s costs. — Drane v. King & Devitt, 21 Ala. 557; Powell v. Hadden’s Executors, 21 Ala. 745; Smith v. Robinson, 11 Ala. 270 ; Spence v. Rutledge, 11 Ala. 590; Code, §§ 2401, 3037.</p>

Heard before the Hon. James 33. Claek. This bill was filed by the appellants, as partners, against Frederick Yoegelin and L. 33. Vasser, to compel an inter-pleader between the defendants respecting the title to the proceeds of a certain note. The note in controversy was executed by Plant & Co. to E. L. Lee, their landlord, for a portion of the rent of a house leased by them during the year 1854.

Heard before the Hon. Wade Keyes. ' This bill was filed by Mrs. Sarah Goldsmith, the appellant, who sued by her next friend, alleging that she intermarried with her present husband, in this State, in 1849 ; that she was possessed, at the time of her marriage, of #2,000, which, by ante-nuptial contract with her liusb and, was settled and secured to her separate use; that no trustee was appointed in said marriage-contract; that said $2,000 went into the possession of her…

Tried before the Hon. C. W. Rapiep„. This action was brought by the appellants, and was founded on a marine policy of insurance on 300 pieces of bagging, to be shipped from New Orleans to Mobile on board the steamboat Helen; 185 pieces of which, were consumed by fire, while on the wharf at the lake end of the Jefferson and Ponehartrain railroad, about eight miles from the city of New- Orleans.

Tried before the Hon. Andrew B. Moohe. This action was brought by the administrator of Peter Donaldson, deceased, against the administrator of John C. Waters, deceased, to recover the sum of $>5,000, paid by said Donaldson to Waters, on the 7th January, 1837,. as a part of the purchase-money for a tract of land; and was commenced by attachment, on the 19th July, 1847.

Tried before the Hon. Alex. McKietstry. This action was brought by Coil Gilleland, against Edward Sexana, James A. McElhaney, James Nelly, and William S. Paine, and was commenced in a justice’s court.

<p>[motion to dismiss appeal.]</p> <p>1. Amendment of judgment mine pro tunc. — In an appeal case from a justice’s court, flic judgment may be amended at a subsequent term, nunc pro tunc, by vacating it as against a party against whom it was improperly rendered as the surety on the certiorari bond.</p> <p>2. Sufficiency of appeal band. — When an appeal is taken from a judgment which was amended, nunc pro tunc, at a term subsequent to its rendition, the appeal bond should describe the judgment as corrected by the amendment, but as having been rendered at the former term; but it is not necessary that the character of the action should be mentioned.</p>

<p>[TRIAL OF RIGHT OF PROPERTY IN SLAVES.]</p> <p>1. Construction of deed of gift. — A deed of gift, conveying certain slaves to the grantor’s wife and children, by these words, “do give, grant,” &c., “unto the said Elizabeth, during her natural life, and to Mary Ann, John M., Sarah Caroline, James E., Elizabeth, Robert, and Nancy, their heirs and assigns “to have and to hold unto their only proper use, benefit, and behoof of the said Elizabeth, Mary Ann, John M., Sarah Caroline, James E., Elizabeth, Robert, and Nancy, their executors, administrators, and assigns, forever,” — confers upon the children, jointly with the wife, a present and immediate right of property, and does not postpone their interest until her death.</p>

Heard, before the Hon. Wade Keyes. The material facts of this case are these: Holt & Chambers, a mercantile firm in the city of Montgomery,… Held: that the intent of the grantor alone is sufficient to constitute a fraud in law. — Harshman v. Lowe, 9 Ohio, 92 ; Wilcox v. Kellogg, 11 Ohio, 394; Mitchell v. Gazzam, 12 Ohio, 315. 3. The deed to Alexander Chambers being fraudulent in law, his assent to its provisions cannot be implied. Ashley’s Adm’r v. Kobinson, 29 Ala. 112. 4.

<p>[action por purchase-money op horse J</p> <p>X. Jurisdiction of circuit court as to amount. — In a civil action, commenced in the circuit court, and founded on a moneyed demand, if the plaintiff recovers only fifty dollars or less, and the amount of his recovery is not reduced’hy a set-off successfully made, the court should dismiss the suit on motion, (Code, § 2365,) unless the statutory affidavit is made.</p> <p>2.. Judgment reamed and rendered. — Where the circuit court erroneously renders judgment for an amount 1’ess than its constitutional jurisdiction, the appellate court, in reversing such judgment, will itself render the judgment which the circuit court ought to have rendered..</p>

<p>[REAL ACTION UNDER CODE IN NATURE OF EJECTMENT.]</p> <p>1. TF7¡a¿ Hile will support action. — To enable a plaintiff to recover in a real action . under the Code, in the nature of an action of ejectment, he must have, at the commencement of the suit, a legal title and the right of possession.</p> <p>2. When general charge on evidence is erroneous. — Where the question of fraud •vel non is directly involved in the issue, and the evidence upon the point is conflicting, it is error in the court to instruct the jury, that if they believe the evidence they must find for the plaintiff.</p>

Tlie record does not show the name of the presiding judge. This action was brought by Joshua W. Young against William H. Davis, to recover damages for the defendant’s conversion of thirty-six bales of cotton. The defendant pleaded four pleas, the second of which was the statute of limitations of six years, and the fourth was as follows : “4.

Heard before the Hon. JohN Foster. This bill was filed by John L. Harris against John I). Miller, seeking to have a bill of sale for a negro girl, which was absolute on its face, declared a mortgage, and for redemption under it.

<p>[TBOVER EOE CONVERSION OE HOESE.]</p> <p>1. Exemption law construed. — Under the Code, (§§ 2462-66,) a verbal claim i® sufficient to perfect the right of exemption, though the statutory affidavit is necessary to give an action for damages against the officer ; but, if the property thus claimed as exempt is afterwards sold or exchanged by the head of the family, it immediately becomes liable, in the hands of the purchaser, to be seized and sold under execution against the former owner.</p>

Tried before tbe lion. C. W. BapieR. This action was commenced in tbe name of G-eorge C. Iiodges, as tbe trustee of Mrs. Martba Bootbe; and was prosecuted, after tbe death of saidBoothe, in tbe name of tbe present appellant, who was appointed in bis stead.

Tried before the Hon. JohN Gill Shorter. The proceedings in this case were instituted by the appellees, who libeled the steamboat Pink Toney, for work and labor performed by them, at the instance of the captain and master, in getting the said boat afloat from the wharf at Montgomery, where she had been left aground by a sudden fall in the river.

IN the matter of the last, will and testament of W^iggins. W. Whitaker, deceased, which was propounded for probate by the executor therein named, and contested by the-appellants, (Mrs. Saxon being a daughter of the testator,) on the grounds of mental incapacity and undue influence..

<p>Appeal from the Circuit Court of Lowndes.</p> <p>Tried before the ITon. ANDREW B. Moore.</p> <p>This action was brought by James J. Scott against Thomas M. Williams, to recover damages for the wrongful taking of a slave; the complaint being in the form prescribed by the Code, (p. 555,) “for trespass in taking goods.” It was agreed that the trespass complained of grew out of the following facts : The plaintiff had placed the slave, for sale, in the possession of one Robinson, against whom Williams, as administrator of one Peter Wyatt, deceased, brought an action of detinue, for the recovery of the slave. The detinue suit was commenced on the 15th April, 1853, and was defended by said Scott. The defendant therein having failed to give the statutory bond, the slave was delivered to the plaintiff, on his execution of the necessary bond, who retained the possession until the 7th July, 1853, and then delivered him back to the sheriff. The detinue suit was dismissed on the 19th September, 1853, and the sheriff then delivered the slave to said Scott. The plaintiff proved, also, the value of the trouble and expense incurred by him in defending the detinue suit, counsel fees paid by him, and the value of the slave’s services while he was deprived of his possession during the pendency of said suit. The case was submitted to the decision of the court, without the intervention of a jury, with leave to either party to revise the decision on error or appeal. The court decided, “that the plaintiff was entitled to recover tbe counsel fees paid by bim, and the hire of said slave, with interest from the dismissal of said suit; and entered a verdict for the plaintiff accordingly.” This ruling of the court, to which the defendant excepted, is now assigned as error.</p>

<p>[EJECTMENT FOB SCHOOL LANDS.]</p> <p>1. Title of purchaser of school lands. — A purchaser of school lands, at a sale made under the act of 183*7, (Clay’s Digest, 524^6,) who has paid the purchase-money in full, and obtained the certificate of the commissioners, duly acknowledged, has a perfect title without a patent.</p> <p>2. Presumption in favor of affirmative charge. — Where the bill of exceptions does not purport to set out all the evidence, the appellate court will presume that a general affirmative charge was justified by the evidence.</p>

Tried, before the Hon. Thomas A. Walkeb. This action was brought by Wilson Littlefield against Benjamin B. Wharton, to try titles to a small tract of land embraced in fractional section 18, township 12, range 6, east, in the Coosa land district, and to recover damages for its detention.

Tried before the Hon. JonN Gill Shorter. Held: taken and considered as security to the same, and be in all respects bound as security, until said promissory note, or other instrument is paid off and discharged, and shall be liable to be sued, in the same manner, and in the same action, with the principal, or maker of said promissory note or other instrument; any law, practice, or…

Tried before the Hon. JOHN Gill Shobtee. Lsr this case, the defendant was summoned “to answer the complaint of John D. Adair, special administrator of Zebulon D. Bragg, deceased”; and tbe original complaint was as follows: “John D. Adair, special adm’r on\ The plaintiff claims the estate of Z. D. Bragg, dec’dJ of the defendant $ 114, vs. ( due to him as admin-Bobert B. Barrow. ) istrator as aforesaid, from the said defendant, by account, on the 25th day of December, 1853;…

Heard before the Hon. Wade Keyes. This bill was filed by John Burden against Albert Stein, to impeach and set aside a decree of the probate court in a cause therein pending between the same parties, which was affirmed on appeal by the supreme court at its June term, 1854. — See the case reported in 25 Ala. 455.

Heard before the Hon James B. ClaRK. This bill was filed by Shadrach Bogan and James W. Bogan, against John Camp, individually, and as… Held: that the contract sought to be enforced. was illegal and void, as being in contravention of the statute which prohibits private sales by executors and administrators; and in support of this position he cited the following cases: Dearman v. Dearman, 4 Ala. 521; Eambro v. Gantt, 12 Ala. 298; Wier y. Davis & Humphries, 4 Ala. 442;…

<p>Appeal from the Circuit Court of Eayette.</p> <p>Tried before the Hon. S. L>. Hale.</p> <p>This action was brought by Robert N. Fleming against Robert Ussery, Miles Gr. Riggs, and Ransom IJssery, to recover the possession of a tract of land. The bill of exceptions does not purport to set out all the evidence. The court charged the jury, “that if they believed the evidence, they must find for the defendant.” This charge, to which an exception was reserved, is the only matter now assigned as error.</p>

<p>Appeal from the Chancery Court of Shelby.</p> <p>Heard before the Hon. James B. ClaRK.</p> <p>This bill was filed by Elbert H. Sawyer against Mrs. Susan A. Caldwell, seeking to subject the defendant’s separate estate to the payment of a promissory note executed by her, jointly with her husband since deceased, for a part of the purchase-money of a slave sold to them by said Sawyer on the 8th February, 1851. The bill alleged, that the complainant had instituted an action at law on said note, against both the makers; that Mrs. Caldwell pleaded her coverture, and was thereupon discharged; and that he obtained a judgment, with a return of “no property” on an execution, against the husband, who had since died. It does not appear whether Mrs. Caldwell’s separate estate was held under contract or statute.</p> <p>The defendant answered the bill, admitting all its material allegations, but setting up fraud and misrepresentation in the sale, and a breach of the warranty of soundness, in defense of the relief sought by the bill.</p> <p>On final hearing, on pleadings and proof, the chancellor held, that the defense was not sustained by the evidence ; and he therefore rendered a decree in favor of the complainant, which is now assigned as error.</p>

<p>[BILL IN EQUITY TO ESTABLISH COPARTNERSHIP INTEREST OR RESULTING. TRUST.]</p> <p>1. repugnancy in bill. — A bill filed with a double aspect, seeking-to establish for an infant complainant either a partnership interest in certain waterworks, under a contract made by his father for his benefit, or a resulting trust on account of the investment of his money in said water-works by his father as guardian, is not obnoxious to the charge of repugnancy.</p> <p>2. Presumed equality of partners. — -A partnership is presumed to be one of equality among the partners, in the absence of proof of any stipulation to the contrary.</p> <p>3. Partner’s right to repudiate contract on account of copartner’s violation. — The failure of one partner to furnish as much money for partnership purposes as he had agreed to furnish, does not give his copartner a right to repudiate the contract, when called upon to carry it- out, after having accepted and used the money actually furnished.</p> <p>i. Competency of guardian as witness for ward.-. — A guardian, who has invested his ward’s funds in a partnership, is not a competent witness for the ward, when the latter seeks, -while still an infant, to enforce the partnership for his benefit.</p> <p>5. What defenses may be set up in avoidance of partnership. — Where a father invests his own funds and personal services, or the funds of his children in his hands as guardian, arising from an unauthorized sale of their property, in a partnership for their benefit; and the children afterwards seek to enforce the partnership in equity, — the other partner cannot avail himself of these facts to avoid the contract,</p>

<p>[bill in equity by purchaser, for reformation of deed, abatement of PURCHASE-MONEY, AND INJUNCTION OE ACTION AT LAW.]</p> <p>1. Competency of surety as witness for principal. — Where the principal alone files a bill in equity, to enjoin an action at law against himself and his surety, he may render the surety a competent witness for him, by paying all costs of the action at law, and depositing with the surety a sum of money sufficient to cover any liability in that action.</p> <p>2. When mistake is no ground for equitable relief. — If a portion of the land sold is, by mistake, omitted from the deed, such mistake furnishes no ground for equitable relief against an action at law on the notes for the purchase-money, when it appears that the purchaser was put in possession of the entire tract sold, and has retained it undisturbed.</p> <p>8. When fraud is no ground for equitable relief. — When the price of a chattel is, by agreement, included in notes given for the purchase-money of a tract of land, although the two sales are entirely distinct transactions, a fraud in the sale of the chattel is available as a defense at law against an action on the note, and, consequently, constitutes no ground for equitable relief.</p> <p>4. Secondary evidence of title-bond. — After the execution of a deed by the vendor, his title-bond is presumed to have been given up and destroyed; consequently, secondary evidence of its contents is then admissible for the purchaser, although none of the witnesses recollect what became of it.</p> <p>5. Reformation and cancellation of deed. — Añex the death of the vendor, leaving infant heirs, the purchaser may come into equity, to havehis deed reformed and canceled, as to a tract of land to which the vendor had no title, and which was included in the deed by mistake.</p> <p>6. Abatement of purchase-money as incidental to reformation and cancellation of deed. Where the jurisdiction of equity has attached, on bill filed by a purchaser, for the purpose of reforming and partially canceling his deed, the court may also, as incidental to this ground of relief, allow an abatement of the purchase-money, on account of the vendor’s misrepresentations respecting the location of the boundary lines.</p> <p>7. When equity will grant partial relief without settling all equities betwen the parties. Where the vendor’s deed omits, by mistake, a portion of the land which he intended to convey, and of which the purchaser has retained the uninterrupted possession; and, by a similar mistake, includes another tract to which he had no title whatever, the chancery court may, without settling all the equities between the parties _ growing out of the transaction, take jurisdiction, at the instance of the purchaser, to reform and partially cancel the deed, and make an abatement of the purchase-money, on account of the vendor’s misrepresentations respecting the location of the boundary linos.</p> <p>8. Parties to bill for reformation of deed. — The heirs-at-law of the vendor are not necessary parties to a bill, filed by the purchaser against his administrator, for a reformation and partial cancellation of the deed, as to a tract of land to which the vendor had no title, and which was included in the deed by mistake.</p> <p>9. What relief defendant may obtain without cross-bill. — On bill being filed by a purchaser against the personal representative of his deceased Tendor, scek-ing a reformation and partial cancellation of his deed, as to a tract of land to which the vendor had no title, and an abatement of the purchase-money,— although the defendant can obtain no active relief without a cross-bill, he may nevertheless insist that the complainant shall bo required to do equity, by accounting for another tract, which was omitted from the deed by mistake, but of which the purchaser has retained the undisturbed possession ; and this, notwithstanding the frame and prayer of the bill prevent the complainant from obtaining any relief as to that tract.</p>

<p>Appeal from the Chancery Court of Mobile.</p> <p>Heard before the Hon. Wade Keyes.</p> <p>This bill was filed by the executor of Mrs. Martha Bryant, deceased, on the 21st May, 1850, to obtain the rescission of a contract for the purchase by his testatrix, from one Joseph Boothe, of a certain tract of land. The contract was made in 1833. The bill is predicated on the vendor’s fraudulent concealment of a defect in the title. The material facts of the case, as disclosed by the pleadings and proof, are thus stated by'the chief-justice:</p> <p>“Among the facts alleged and proved are the following : That in 1833, Mrs. Martha Bryant, the testatrix of the complainant, bought of the defendant the north half of the west half of north-west quarter of section 8, township 2, range 3, east, in tbe St. Stephens land-district, at the price of six hundred dollars; that she paid the purchase-money, took his receipt therefor, containing a description of the land, and thereupon took possession, made improvements, and retained possession until her death in 1848; that at the time of the sale, no defect appeared on the face of the title paper of the defendant; that the defendant had entered the land at the St. Stephens land-office, and had the certificate of entry, which did not disclose any defect of title on its face; that there was in fact, however, a defect of title, which was known to the defendant, but which was concealed from Mrs. Bryant; that the defect in the title consisted in this, that a material portion of the land was covered and embraced by an older and better claim, or grant, known as the ‘Weakly claimthat the Weakly claim was run out, and located by surveyors, in 1841, when it was ascertained to embrace the improvements of Mrs. Bryant on the land she had bought of defendant; that thereupon she called on him, to know if she had not bought the land of him, and he replied that her improvements were not on the land he had sold her; that thereupon, in the presence of the defendant, she bought of Mims, the owner of the Weakly claim, the four acres thereof which included her improvements, and paid him one hundred dollars therefor; that afterwards, and in 1843, the defendant, by the false pretense that he wanted to give her a good title fo,r the land he had sold her, obtained from her the receipt he had given her, and induced her to accept in lieu thereof his quit-claim deed to the land, by the false representation that he had thereby made her a good title; that Mrs. Bryant was far advanced in years, uneducated, a near neighbor of defendant, considered him her friend, reposed great confidence in him, and was deceived by him ; that in 1847 the defendant’s entry of the land which he had soltl to her was vacated and canceled by the government officers, because of its conflict with the Weakly claim, and the defendant’s money which he had paid to the land-office for the land sold by him to Mrs. Bryant, was returned to him by the government officer, and accepted by Mm ; that afterwards, all that part of the land which he had sold to Mrs. Bryant, which was not embraced by the Weakly claim, was entered at the land-office in the name of Joseph Silver, a son-in-law of the defendant; that the defendant himself made that entry for Silver; that afterwards, and about the 1st of June, 1848, Mrs. Bryant died, leaving her last will and testament, which has been duly admitted to probate, but which does not appear to mention, describe, or devise to any person the land sold to her by the defendant.”</p> <p>On final hearing, on pleadings and proof, the chancellor dismissed the bill, but without assigning any reason for the decree; and Ms decree is now assigned as error.</p> <p>1. Boothe knew, when he made the sale to Mrs. Bryant, that he had no title to the land, and that Ms entry of it could be canceled; and his concealment of this fact, coupled with his misrepresentations, constitutes such a fraud as entitles the complainant to a rescission of the contract, and return of the purchase-money, with interest. — Young v. Harris, 2 Ala. 158; Camp v: Camp, 2 Ala. 632; Park v. Brooks, 16 Ala. 538; Munroe v. Pritchett, 16 Ala. 790 ; Elliott v. Boaz, 9 Ala. 776; Bead v. Walker, 18 Ala. 323; Moore v. Clay, 7 Ala. 742; Smith v. Richards, 13 Peters, 26; Reese v. Wyman, 9 Geo. 430; Edwards v. M'cLeary, Cooper’s R. 308. He is entitled, also, to recover the $100 paid Mims, with interest. — Smith v. Mitchell, 6 Geo. 458 ; Tomlinson v. Savage, 6 Ired. Eq. 430; Kindley v. Gray, ib. 445 ; 2 Strob. Eq. 14. The fact that a conveyance was executed, does not affect the right of rescission. — Berry v. Armistead, 2 Xoen, 221; Gibson v. D’Este, 2 Y. & C. 542; Dart on Vendors and Purchasers, 377.</p> <p>2-, The executor of Mrs. Bryant is the only necessary party complainant, since a recovery of the purchase-money is the only relief which can be obtained. The title to the land, which has been divested by the cancellation of Boothe’s entry, cannot be affected by any decree in this suit; consequently, the heirs-at-law were not necessary parties. Moreover, Mrs. Bryant’s will directs all the estate, real and personal, to be sold; and the executor, who has duly qualified, is the proper person to represent the interests of the estate. In support of these positions, see Nice v. 'Spottswood, 6 Monroe, 40; 3 Munford, 54 ; Harris v. Carter, 3 Stewart, 233; 6 'Wheaton, 550; 1 Wash. C. C. 517 ; Sugden on Powers, 160-65 ; 4 Kent, 326 ; 2 Johns. Ch. 254; 8 Porter, 380; 1 Sneed, 318.</p> <p>3. The delay in the institution of the suit is satisfactorily accounted for by the condition of the parties, and the circumstances of the case. The fraud was not discovered until after Mrs. Bryant’s death. — Poster v. Gressett’s Heirs, 29 Ala. 393.</p> <p>4. The sale under an order of the orphans’ court, and the executor’s purchase at that sale, constitute no defense. Those proceedings did not affect the title to the land, and can have no effect on the right of rescission.</p> <p>1. The charge of fraud is denied by the answer, and is not substantiated by the proof.</p> <p>2. Mrs. Bryant was put in possession of the land, under the contract, in 1833, and retained it until her death in 1848. The defect of title, caused by the conflict with the Weakly claim, was discovered and communicated to her in 1840; and she then elected, instead of rescinding the contract, to purchase a part of the conflicting claim, and retain possession under the contract. After this long delay and acquiescence on her part, it is now too late to seek a rescission of the contract. — 4 Ala. 29; 12 Ala. 38; 7 How. (H. S.) 159 ; 3 Ala. 852; 9 Gill, 156 ; 3 Peters, 215.</p> <p>3. The land has been sold, since the death of Mrs. Bryant, as belonging to her estate, and bought by the executor; the proceedings connected with the sale being returned to the probate court, approved, and recorded. The executor is concluded by these acts.</p> <p>4. The bill shows no right in the .complainant to maintain this suit.</p>

<p>[ACTION ON PROMISSORY NOTE — PLEA OP USURY.]</p> <p>1. Costs on successful plea of usury. — To authorize a reversal of the judgment, at the defendant’s instance, on account of the refusal of the court below to impose the costs on the plaintiff, when the plea of usury was successfully interposed, the record must show that an intentional reservation of usurious interest was proved : if the bill of exceptions does not purport to set out all the evidence, the appellate court cannot infer that this proof was made, from the mere fact that the plaintiff recovered a judgment for less than the amount of his note.</p>

. Tried before tbe Hon.. John Gill Shorter. The complaint in tbis case was as: follows: “Richard Coxe & Co. ^ The plaintiffs claim of the dews. > fondant |2,500 damages, for in-Cliarles Crommelin.

<p>[KILL IN EQUITY EOR ALLOTMENT OE DOWER AND RECOVERY OE LEGACY.]</p> <p>1. When widow’s dissent from her husband’s will is necessary to perfect right of dower. Whore any provision, either by bequest or devise, is made for the wife by her husband’s will, and such provision does not plainly appear from the will to have been intended in addition to her dower, her right of dower is barred by her failure to dissent from the will within twelve months after its probate ; and this rule applies where the will, purporting to dispose of both, realty and personalty, and directing the entire estate to be kept together, and the whole proceeds to be applied to the support of the testator’s wife and children, is valid only as to the personalty.</p> <p>2. Construction of legacy as to condition precedent, — Under a bequest in these words, “If my wife never marries, she is to pick out fifteen of my best negroes, and keep possession of them during her natural life, or her will and pleasure,” the selection of the slaves by the legatee is in the nature of a condition precedent.</p> <p>3, When legatee may come into equity.- — If an executor refuses to assent to a legacy, where his refusal is not necessary to protect the rights of creditors or other legatees, the legatee may come into equity, to compel an assent to and delivery of his legacy, with interest or hire; but where a selection by the legatee is annexed as a condition precedent to his legacy, tbe selection must be made, and notice thereof given to the executor, before the filing of the bill, unless such selection is prevented by the executor.</p> <p>i. Supplemental hill. — A fact which, though necessary to the perfecting of the original cause of action, did not exist until after the original bill was filed, cannot be brought forward by supplemental bill.</p>

<p>[BILI IN EQUITY BY FEME COVERT, TO SET ASIDE CONVEYANCE OS' SEPARATE ESTATE, AND REMOVE HUSBAND FROM TRUSTEESHIP.]</p> <p>1. Construction and validity of deeds by Imsband and wife, and by their grantee to wife. — whore husband and wife voluntarily convey to a stranger, who after-wards, and since the passage of the “woman’s law” of 1848, conveys by quit-claim to the wife, both deeds being duly recorded, the.title vests in the wife, as against a subsequent purchaser from the husband.</p> <p>2. Separate estate in wife created by quit-claim deed under statide. — A quit-claim deed, executed since the passage of the “woman’s law” of 1848, by which lands are conveyed to a married woman, creates in her a separate estate under that act.</p> <p>3. Acknoioledgment of deed by wife. — The statute which makes an acknowledgment by the wife, on private examination apart from her husband, essential to the validity of a conveyance by her, has no application to conveyances of her separate estate under the acts of 1848 and 1850.</p> <p>4. Duress avoids deed of wife. — Where the wife is compelled, by threats Of personal violence from her husband, to join wkh him in a conveyance of her real estate, the deed will be set aside, as to her, by a court of equity.</p> <p>5. Removal of husband from trusteeship. — The husband will be removed from the trusteeship of his wife’s separate estate, where it is shown that he is an habitual drunkard ; that he has deserted her ; that while living with her, he treated her with such harshness and violence as to keep her in constant alarm ; and that he compelled her, by threats of personal violence, to join with him in a conveyance of her separate estate.</p>

Tried before the Hon. Jnto. Gill SiioRtek. This action was founded on a bond, of which the following is a copy : “State of A1 ' esents witness, that day had a partial Tallapoosa settlement with Thomas M. Cowles, on my claim in the share of John H. Broadnax in the company of Ware, Dougherty & Co., and that the said Thomas M. Cowles has turned over to me land to the amount of $4,420, which I acknowledge this day to have received.

Heard before the Hon. Wade Keyes. This bill was filed by Theodore B. Stubbs, to enjoin a judgment at law against himself and James E. Stubbs, as partners composing the firm of James E. Stubbs & Co.,, in favor of J. W. & R. Leavitt. The action at law was founded on a promissory note, purporting-to have been executed by said James E. Stubbs & Co., and representing on its face that complainant was a partner in said firm.

<p>Appeal from the Circuit Court of Bussell.</p> <p>Tried before the Hon. Bobert Dougherty.</p> <p>Tnis action was brought by Bichard P. Spencer, against "Wells Godwin and Alfred P. Beed, to recover damages for the conversion of a slave named Job; and was commenced on the 18th March, 1850. The plaintiff derived title to the slave under a purchase from Mrs. Mary A. Yonge, which was made in Columbus, Georgia, on the 8th November, 1849, where the parties and the slave then were. At plaintiff’s request, but without any new consideration, W. P. C. Yonge, the husband of Mrs. Mary A. Yonge, joined with her in the bill of sale to plaintiff, which contained a warranty of title, “except so far ás he [said slave] may be subject to the debts and judgments against W. C. Yonge in the State of Alabama.”</p> <p>Mrs. Yonge claimed said slave, as a part of her separate estate, under a deed dated March 15, 1847, by which her husband conveyed said slave, with other property, to Wells Godwin, as trustee, for her benefit; which deed, the bill of exceptions says, “was fair and lawful, but voluntary.” At the time of the execution of this deed, said W. P. C. Yonge and Wells Godwin were partners in trade, under the firm name of Yonge & Godwin; and there were several outstanding debts against them, one in favor of L. M. Wiley & Co., and another in favor of Parmelee, Bodgers & Co. Wiley & Co. having reduced their debt to judgment, an execution issued thereon was levied on the slave in controversy, as the property of said W. P. C. Yonge; whereupon Mrs. Yonge interposed a claim, by lier next friend, and obtained the possession of the slave on executing the statutory bond. The slave remained in the possession of Mrs. Yonge, under this claim bond, until the sale to plaintiff above mentioned, the claim suit being then mi disposed of.</p> <p>On the 12th January, 1850, the slave was levied on by the sheriff of Russell county in this State, by the direction of said "Wells Godwin, under an execution against said Yonge & Godwin, in favor of Parmelee, Rodgers & Go. ; and was delivered by the sheriff to said Wells Godwin, for safe-keeping. This execution was received in office on the 8th November, 1849, and was issued on a judgment which was founded on a debt older than the deed from Yonge in trust for his wife. At the time of its levy, the trial of the right of property between Mrs. Yonge and Wiley & Co. was still pending.</p> <p>These are all the facts, as set out in the bill of exceptions, which relate to the respective titles of the parties.</p> <p>The plaintiff offered in evidence the record of a chancery suit, instituted by Mrs. Yonge, suing by her next friend, on the 25th September, 1849, against her husband, Wells Godwin, and certain execution creditors of her husband who had levied on the slave Job; seeking to reform, if necessary, the deed under which she claimed said slave, to remove Wells Godwin from the trusteesliij) of her separate estate, and to enjoin the execution creditors of her husband from further proceedings to subject said slave to the satisfaction of their debts; also, the record of another similar chancery suit, instituted by Mrs. Yonge, against Parmelee, Rodgers & Go., on the 1st April, 1851; both of which suits were still pending and undisposed of. The court ruled that these records were not admissible evidence, and the plaintiff’ excepted to its decision.</p> <p>“The plaintiff offered to prove, that the defendant Reed, immediately after the commencement of this action, received the possession of said slave through the sheriff, and claimed his custody as being the assignee of the execution in favor of Parmelee, Rodgers & Go., and having the control thereof. The court excluded this evidence,- on the defendant’s objection, and tlie plaintiff excepted. It was offered in proof, that the sheriff of Russell county, during the fall term of said circuit court, had given plaintiff au order, or permisson, to take said slave home with him, but plaintiff was prevented- from doing so at that time ; and that plaintiff and said Reed had a conversation, during that court, in which Reed said to plaintiff, ‘The conversion of Job is now complete, if it was not before.’ The court excluded this evidence, also, as being illegal, irrelevant, and occurring after the commencement of this action ; and the plaintiff' excepted.</p> <p>“This was all the evidence ; and thereupon the court charged the jury, that if they believed alL the evidence above set forth, the plaintiff had no right to recover in this action; to which charge the plaintiff excepted.”</p> <p>The charge of the court, and its rulings on the evidence; are now assigned as error.</p>

<p>[TROVER EOR CONVERSION OR SLAVES.]</p> <p>X. Proof of possession and ownership. — The more fact that plaintiff’s donor, about thirty years ago, executed to him a deed of gift of the slaves in controversy in another State, with the additional fact that the slaves were then and there known to the subscribing witness of the deed, is not sufficient to authorize a recovery in trover agaiust one who has had possession, under claim of title, for twenty-five years.</p>

<p>[Ci.SE VOR MVKRSION OP WA.TER PROM MLIfJ’</p> <p>1. Conclusiveness of judicial decisions. — An opinion of the supreme court is the law of the case in which it is pronounced, when brought up on a second appeal.</p> <p>2. Survey and boundaries of public lands. — -The case of Stein v. Ashby, 24 Ala. 521, re-affirmed as to the principles stated in the seventh and eighth head-notes, respecting the subdivision of a fractional section, and the contents of a patent for such subdivision.</p> <p>3. Specific objection to charge. — -When a party excepts to a charge on a single specified ground, the appellate court will confine him to the objection specifically stated.</p> <p>i. When abstract charge will not reverse. — A charge which is abstract, but unobjectionable in other respects, is no ground for a reversal of the judgment, when the record clearly shows that it could not have injured the appellant.</p> <p>5. What defense mag be set up under general issue. — Under the plea of not guilty, to an action on the case for diverting water from a mill, the defense cannot be set up, that plaintiff has no right to mill privileges, because he owned the lands on hut one side of the stream, and failed to institute proceedings for a condemnation of the land on the opposite side.</p> <p>8. Plea must go as far as it professes. — A plea puis darrein continuance, professing to be “in bar of the action,” but answering only apart of the declaration, is demurrable.</p>

<p>Appeal from the Chancery Court of Lowndes.</p> <p>Heard before the Hon. "Wade Keyes.</p> <p>This bill was filed by John N. Smith, who was a judgment creditor of James A. Branch, against said Branch and wife, William H. Chambliss, J osiah Blackman, and others; seeking to subject to the satisfaction of complainant’s judgment a tract of land, alleged to be held by Blackman, under a contract of purchase from Chambliss, on secret trust for Branch of his wife. The opinion of the court states all the material facts of the case. On final hearing, the chancellor rendered a decree for the complainant, which is now assigned as error.</p>

<p>Appeal from, the Chancery Court of Barbour.</p> <p>Heard before the Hon. Wade Keyes.</p> <p>This bill was filed by Lewis J. Leaird against Edward B. Young, alleging that, in 1846, Clealand & Danforth obtained a judgment against one John M. Moore, which Moore enjoined by bill in equity; that complainant became surety for said Moore on the injunction bond in said suit; that Moore, being about to remove from the country in 1848, placed a slave in the hands of Young, “for the purpose of holding complainant harmless in the premises,” and Young promised and agreed to hold the slave for that purpose; that in 1850, Moore having in the meantime died insolvent, and judgment having been rendered against complainant on said injunction bond, Young refused to carry out the trust for his benefit, or to indemnify him in any manner; that the matters in controversy between complainant and A oung, growing out of these transactions, wore submitted to arbitration, and the arbitrators made an award in the premises; that this award is not binding on complainant, “because it was decided against the law, in requiring him to prove that Young had possession of said negro when the bill was dismissed, or could have had the possession of him by the use of due diligence”; that Young, “without regard to his duty as trustee, and for the purpose of defrauding complainant, has permitted said negro to pass out of his possession since the arbitrament”; that Young “fraudulently concealed from complainant the fact that he had permitted said negro to pass out of his possession, and this fact did not come to complainant’s knowledge until after the arbitrament”; and that complainant tendered to Young, for his signature, a conveyance such as the award required him to execute, but Young refused to sign it. The prayer of the bill is, “that said award be annulled, or, in default thereof, that said Young be compelled to a specific performance of the same.”</p> <p>The award, which is made an exhibit to the bill, is as follows:</p> <p>“In the matter submitted to the undersigned, as arbitrators, between Lewis J. Leaird and Edward B. Young, they find the following to be the facts : That Clealand & Danforth recovered a judgment against John M. Moore, which Moore enjoined by bill in equity, with Leaird as his surety on the injunction bond; that Moore, while this suit in equity was pending, made an absolute bill of sale for a negro boy to Young, the intent and meaning of which was, that the negro was to be sold by Young, in case it should become necessary to pay Young a debt due to him by Moore for about $80, and the balance be applied to the Clealand & Danforth judgment, should the same be recoverable out of Moore by a dismissal of his bill; and that the negro has been run off .to parts unknown to Young, without his knowledge or permission, and is not within his reach. Upon these facts we decide, that Young did not have the right of possession and sale of the negro, until the bill in equity was dismissed; and that the question is, whether Young, after the dismissal of the bill, could have obtained possession of the negro by the exercise of due diligence. There is no evidence upon this point; and it being Mr. Leaird’s duty to establish this point, and thereby show a breach of duty by Young as trustee, the arbitrators decide, that Mr. Young is not liable, upon the evidence, to pay Mr. Leaird the amount advanced by him on the Clealand & Danforth. judgment. But, if within tlie scope of cur power, we direct Mr. Young to give Mr. Leaird the benefit of his bill of sale, to the extent of his demand, by assignment, power of attorney, or otherwise, as the parties may think proper; Young not to be held responsible for good title to the negro, if it should be found that Moore’s title to him was not good at the time the bill of sale was made to Young. Witness our hands and seals,” &c.</p> <p>The instrument tendered by Leaird for Young’s signature, -which is also made an exhibit to the bill, is as follows:</p> <p>“In accordance with the direction of the arbitrators in the case submitted by Lewis J. Leaird and myself on the 2d inst., I hereby assign, relinquish, and set over to said Lewis J. Leaird, all of my right, title, and interest, of, in, and to a certain slave, named Moses, conveyed to me, by absolute bill of sale, by John M. Moore in his life, for the purpose of securing a debt to me of about $80, and a judgment against said Moore in favor of Clealand & Dan-forth ; which said judgment, since said conveyance to me,, has been paid by said Leaird, as surety of said Moore. Said Leaird, if he recovers said slave,'is to appropriate him, first, to reimburse himself the amount paid out by him as surety as aforesaid; and the balance to be paid over to me, in discharge of said $80. And I do covenant with said Leaird, that I have made no conveyance of said slave, or of the interest in him conveyed to mo by said absolute bill of sale. Witness my hand and seal,” &c.</p> <p>A demurrer to the bill, for want of equity, was overruled by the chancellor, who, on final hearing, on bill, answer, and proof, rendered a'decree for the complainant; and his decree is now assigned as error.</p> <p>contended that the award was a bar to the relief sought by the bill; citing to this point the following cases: Bumpass v. Webb, 4 Porter, 65; Morris- & Overton v. Boss, 2 II. & M. 408; Bn-derhill v. YanCortlandt, 2 Johns. Ch. 339; Todd v. Barlow, 2 Johns. Ch. 551.</p> <p>cited Watson on Awards, 162; Corneforth v. G-eer, 2 Yernon, 705; Morgan v. Mather, 2 Ycsey, 15; Torrance v. Amsdeu, 8 McLean, 509; Hewitt & Bussell v. The State, 6 liar. & John. 95; United States v. Ames, 1 Woodbury & Minott, 76 ; Wickoff v. Coxe, 1 Y. 353; Williams v. Craig, 1 Dallas, 315.</p>

<p>[TRESPASS TO TRY TITLES TO LAND.]</p> <p>1. Boundaries of public lands. — The corners and boundaries of sections, as marked and run by the United States surveyors in their original surveys, although not located with mathematical precision, are established by law as the proper corners and boundaries, and cannot be altered'or controlled by other surveys.</p> <p>2. Mode of ascertaining lost corner or boundary. — In ascertaining the lost corner or boundary of a section, which must be presumed, in the absence of evidence to the contrary, to have been established and marked in the original survey, recourse may be had to the unobliterated marks and corners of that survey, the field-notes and plat, and subsequent surveys made under their guidance, although such subsequent surveys are not proved to correspond in every particular with the original survey. If only a portion of one of the boundary lines, leading to the lost corner, has been obliterated, the remaining portion, whether straight or not as marked, must be considered established ; and the corner must be presumed, in the absence of evidence to the contrary, to be at the point where the marked line, if continued, would intersect the township line. But, if the lost corner is proved to have been at another point, the lost portion of the boundary must be ascertained, by running a straight line, from the point at which the marks disappear, to that corner.</p>

Tried before tlie Hon. Robert Bougherty. This action was brought by Benjamin Glover, against Mrs. Mary L. Brake and her husband, Reuben Brake, to recover damages for tbe conversion, of a slave named Oarvis, whicli Mrs. Drake claimed as a part of her separate estate, while the plaintiff claimed under a purchase at execution sale against one Andrew J. Campbell, who derived title through a purchase from Thomas G. Rainer, as trastee of Mrs. Drake.

<p>[FINAL SETTLEMENT OF ESTATE — CONSTRUCTION OF WILL.]</p> <p>1. TF/¡m legatees taire per capita. — Under a Request to testator’s brother and sisters of the half blood and the children of his sisters of the whole blood, to be equally divided between them, share and share alike, on the death or marriage of his -wife ; with the additional provision, that “should either of his said whole sister’s children be dead” at the time fixed for the distribution, leaving children, such grand-children should “take the place of their deceased parent, — the children of the two sisters of the whole blood take per capita., equally with the brother and sisters of the half blood.</p>

<p>Appeal from tbe Chancery Court of Jefferson.</p> <p>Heard before the Hon. James B. Clabjí.</p> <p>This bill was filed by Mrs. Mary C. Edwards, by her next friend, against her husband, Wiley C. Edwards; seeking to obtain a divorce, on the grounds of cruelty, adultery, and abandonment, and to have certain slaves set apart to her as alimony. The parties were married in this State, and soon afterwards removed to Mississippi, where the alleged grounds of divorce occurred. Of the slaves which the complainant asked to have set apart to her, some belonged to her at the time of her marriage, which occurred in this State, in May, 1847, and others afterwards accrued to her, as her distributive share of her mother’s estate, but the record nowhere shows at what time her mother died. On final hearing, the chancellor held, that the complainant was not entitled to a divorce, because she had adduced no proof of her residence in this State for one year next preceding the filing of the bill; but he further hold, that she was entitled to hold the slaves, of which she was possessed in her own right at the time of her marriage, for her support and maintenance, “until the defendant comes before the court, and stipulates, with sufficient security, to take the complainant home, and to treat her in a kind, humane, and husband-like manner”; and tbat she was also entitled to bold tbe other slaves, which she claimed as her distributive share of her mother’s estate, to her sole and separate use. The complainant appeals from this decree, and assigns for error the refusal of the chancellor to grant her a divorce.</p>

<p>Appeal from tbe Chancery Court of Mobile.</p> <p>Heard before the Hon. "Wade Keyes.</p> <p>This bill was filed by James Perrine, against the heirs-at-law and personal representative of George Huggins, deceased, late sheriff of Mobile county, to subject to the satisfaction of certain judgments, some of which had been paid by complainant as surety of said Huggins, and others of which had been transferred and assigned to him, certain lands in Mobile county, which are alleged to have belonged to said Huggins in his lifetime, though the legal title was then held by one White, and which, since the deaths of said Huggins and White, have been conveyed by the heirs of White to the children of said Huggins. These lands, the bill alleged, were sold at execution sale by said Huggins, as sheriff, and were hid off by said White, as agent or trustee of said Huggins and others, who were jointly interested in them. White afterwards conveyed to the other parties their respective interests in the lands ; but Huggins being insolvent at the time of the purchase, and having judgments then outstanding against him, his interest was retained by White, and no conveyance was made between them ; and this arrangement was alleged to have been intended to hinder, delay and defraud the creditors of Huggins. The judgments owned by complainant, as well as those paid by him as surety of said Huggins, were rendered after said purchase, and were founded on debts contracted after that time. The estate of Huggins was regularly declared insolvent, and complainant’s judgments were filed as claims against it within the time prescribed by law.</p> <p>The answers admitted the payment by said Huggins of a portion of the purchase-money for said land; but they insisted that this was intended by him, and was so understood and agreed between him and White, as a gift or advancement to his children; and that he never claimed any interest whatever in said lands for himself.</p> <p>On final hearing, on bill, answers, and proof, the chancellor rendered a decree for the complainant; which is now assigned as error.</p> <p>At the time the lands were bid off by White, at the sheriff’s sale, in trust for Huggins and others, Huggins declared that his interest was intended for his children, and such was the understanding with White and all concerned. White endorsed on his deed from the sheriff, that Huggins’ interest was intended for the benefit of his children; and, after his death, his heirs conveyed it to the children of Huggins. Huggins always recognized the property as belonging to his children. If the complainant, who was not a creditor of Huggins at the time of this transaction, can, under these circumstances, subject these lands to the satisfaction of his subsequent debts, merely because Huggins was then indebted to other persons, it must be upon the principles of the common law, or the rules which govern courts of equity; for, there being no conveyance from Huggins, the statute of frauds has no application to the case. — Clarke v. White, 12 Peters, 178-98; Sugden on Vendors, vol. 2, topp. 170. Although the transaction was fraudulent as to the existing creditors of Huggins, it cannot be impeached by his subsequent creditors, because there was no existing intent to defraud them. — Upton v. Vail, 6 Johns. Ch. 180; 1 Story’s Equity, §§ 860, 361; Clarke v. White, supra.</p> <p>At common law, before the statute of frauds, a deed or conveyance, fraudulent in fact, was void only against existing creditors.. Since the statute, a conveyance made colorably, with, actual intent to defraud, may be avoided by subsequent creditors. An intent to defraud may be legally inferred from the fact of the grantor’s insolvency, or from his being so largely indebted that his conveyance has the necessary effect of hindering or defrauding his creditors. Indebtedness alone raises the presumption of fraud, which becomes conclusive in law by proof of insolvency, and can only be repelled by proof that the existing debts have all been paid, or that they were secured by mortgage on other property. American Leading Cases, vol. 1, pp. 55-57; 3 Wendell, 411; 19 Pick. 231-37; 6 N. H. 67; 12 N. II. 397-403; 4 Yerger, 164; 6 Humph. 218; 3 Dev. 12; 2 Bibb, 204; 2 B. Monroe, 347 ; 1 Rob. Va. 125 ; 1 Peters’ C. C. 460; 4 Washington, 129; 3 Johns. 481, 497, 501; 12 Serg. & R. 448; 4 G-reenleaf, 105, 208; 1 McCord’s Ch. 518; 1 Bailey’s Eq. 138; 4 Bess. 227, 232; 3 Humph. 118; 3 Bev. 82; 1 Bana, 531, 433; 8 Metcalf, 411, 419 ; 11 Wendell, 241; 3 Paige, 557.</p>

<p>[bill nr equity for foreclosure of mortgage.]</p> <p>1. Validity of conveyance by husband to wife. — If the husband buys a tract of land for his wife, at her request, and pays the purchase-money with funds belonging to her separate estate; but, in violation of her instructions, takes the title to himself,- — his subsequent conveyance ofitto her will be sustained.</p> <p>2. When mortgagee is entitled to protection. — Where a mortgage is executed by the husband, on a tract of land previously conveyed by him to his wife, by a deed which has been properly recorded, and which a court of equity will uphold, the mortgagee must be regarded as a purchaser with notice ; but, if the deed has not been recorded, and the mortgage was given to secure a debt created at the time of its execution, the mortgagee is entitled to protection, because he has the legal title, while the equities are equal.</p>

<p>[bill in equity by remainder-man for recovery of slaves.]</p> <p>1. Construction of bequest for life with remainder over. — Under a bequest of certain personal property, consisting of a slave, horses, cattle, household and. kitchen furniture, plantation tools, &c., to the testator’s wife for life, with limitation over of “whatever may remain and be in her possession at her death,” a life estate only vests in the first taker, and the remainder over is valid.</p>

<p>[CREDITORS* BILL TO SUBJECT PROPERTY IN POSSESSION 01? DEBTOR’S WIDOW UNDER ERAUDULENT PURCHASE EROM EXECUTOR.]</p> <p>1. Estoppel against creditor from impeaching fraudulent sale. — Where lands are sold by an executor, under an order of the orphans’ court, after the estate of his testator has been declared insolvent; and are purchased by the widow, through the fraud and collusion of the executor, at a grossly inadequate price, — a creditor of the estate, who has obtained a decree for his pro-rata share of the assets, knowing that the proceeds of such sale were included therein, cannot afterwards impeach the validity of the sale in equity.</p> <p>2. Condusiveness of judgment. — In an action brought by the executor against the widow of a decedent whose estate has been declared insolvent, for the recovery of slaves, a judgment for the defendant is, in the absence of fraud and collusion, conclusive on the creditors of the estate.</p> <p>3. Equitable relief against judgment at law. — -Where the plaintiff in an action at law fails, for want of evidence as to the identity of the slaves sued for, this is matter on which to base a motion for a new trial, but is no ground for relief in equity.</p>

<p>APPEAL from the Chancery Court of Mobile.</p> <p>Heard before the Hon. WADE KEYES.</p> <p>Tnis bill was filed by the appellants, as heirs-at-law of Alexander Mints, deceased, to set aside the probate of their ancestor's will, which was dated January 20, 1845, and was admitted to probate on the 20th July, 1845. In accordance with the prayer of the bill, an issue was submitted to a jury, who returned a verdict in favor of the validity of the will. The chancellor refused to grant another trial, and dismissed the bill; and his decree in these particulars, together with the rulings of the circuit court on the trial of the issue, to which exceptions were reserved, is now assigned as error.</p> <p>1. That an issue at law is a matter of right in the heir, see 12 Ala. 694. But the verdict is not conclusive, and the court must still decide on the sufficiency of the proof. — 3 Porter, 62; 11 "Wendell, 227 ; 11 Ala. 894 ; 2 Ban. Ch. Pr. 1019.</p> <p>2. The proof is not sufficient to establish the will in a case like this. More proof is required in a will, than in a deed. — 3 P. "W". 93. As to what is meant by attestation, see 3 Mass. 236, 330; 2 Paige, 147; 19 Barbour, 448; 1 B. Monroe, 117; 10 Paige, 90; 3 Poi’ter, 66.</p> <p>3. Proof of acknowledgment is not sufficient to satisfy the statute. — 2 Harr. (N. J.) 86 ; 7 Halst. 70 ; 11 Grattan, 220, 244, 250.</p> <p>4. In cases like this, the law does not presume in favor of the will, but every necessary fact must be proved.— 12 Ala. 687; 1 Eng. Ecc. B. 273, 442 ; 1 Lomax on Executors, 104, § 7.</p> <p>5. Each witness must be able to prove the will in all its material requirements. — 6 Serg. & B. 47; 1 Bandolph, 131, 141; 1 Mass. 258; 13 Barbour, 17.</p> <p>6. A will can never be established on the oath of a single witness. — 6 Bandolph, 234; 1 Balias, 278.</p> <p>A motion for a new -trial, in cases like this, must be addressed to the chancellor.— 2 Ban. Ch. Pr. 1306; 2 Paige, 482; 1 Hill’s Ch. 443; 1 Hoff Ch. Pr. 513. A new trial is not a matter of right in the heir. — 5 Johns. Ch. 154 ; 12 Simons, 28. Generally, the verdict will not be disturbed, if the presiding judge report that he is satisfied. — 3 My. & K. 353. The object of the issue is simply to satisfy the conscience of the chancellor; and if he thinks that substantial justice has been done, he will not disturb the verdict. — 2 Ban. Cb. 1311; 1 Hoff. Ob. Pr. 514 ; 1 Greene’s Oh. B, 154 ; 2 Paige, 482 ; 1 Sim. & Stu. 150; 1 Turner & B.uss. 138; 15 Vesey, 503; 11 ib. 52; 1 Edw. 17 ; 8 Dana., 207; 1 Turner, 178.</p> <p>2. Tbe proof of execution and attestation satisfies all tbe requisitions of tbe statute. — 1 Jarman on Wills, 214; 1 Jjomax on Executors, 25-33 ; 1 Metcalf, 349 ; 10 ib. 55; 17 Pick. 373 ; 6 Bing. 310 ; 7 ib. 457; 1 Oromp. & Mees. 140; 4 Kent’s Com. 513-16 ; 3 Burr. 1775; Hoffman v. Hoffman, 26 Ala. 546.</p> <p>3. Tbe plaintiffs, having received their legacy under tlio will, thereby elected to confirm it, and are bound by that election. — 17 Pick. 303; 2 Gill, 283; 2 Bawle, 168; 1 Dev. & Bat. Eq. 634; 7 Beavan, 93 ; 1 Biley’s Ob. B. 205.</p>

Heard before tbe Hon. James B. Claek. This bill was filed by Benjamin EL Cameron, against Job Taylor, Daniel Neves, Joseph Bryan, Thomas J. Abbott, Alfred Johnson, and Moses Bentley, to enforce the specific performance of a contract for the sale of a tract of land, which Cameron purchased from Bentley, who bought from Johnson, who bought from Taylor, by and with the consent of Neves.

<p>[BILL IN EQUITY Foil FORECLOSURE OF MORTGAGE — CROSS BIEL SETTING UP EQUITABLE SET-OFF.]</p> <p>1. When defect of title avails purchaser as equitable set-off. — A purchaser of land, having been put in possession under his contract, and received a deed with covenants of warranty, cannot, in the absence of fraud in the sale, or the insolvency of his vendor, maintain a cross bül on account of a defect in the title, when the vendor files a bill to foreclose a mortgage given to secure the purchase-money.</p>

<p>[summary proceeding to establish destroyed judgment,]</p> <p>1. Parties and practice,- — Under the act of February 17, 1854,’ (Session Acts 1858-4, p. 218,) providing for the establishment of lost records and other papers which were destroyed by the burning of the court-house of Coffee county in 1851, a judgment of the circuit court may be established on the application of one claiming to be the assignee of the plaintiff’s administrators ; nor is it necessary, in such case, that the judgment should be revived before it is established ; but it may be afterwards revived in the court in which it was originally rendered.</p>

In tbe matter of the estate of Thomas Haines, deceased, which was reported insolvent by John J. Cassady, the administrator; which report was contested by the creditors of the estate.

<p>Appeal from the Chancery Court of Greene.</p> <p>Heard before the Hon. James B. Clark.</p> <p>This bill was filed by Alexander Lyons, the appellant, to coerce payment out of the estate of George Hays, deceased, for services rendered by him, at the instance of Robert Leachman, a former administrator cum test, ann., in ditching the lands of the estate. The bill alleged, that the services rendered were valuable to the estate; that the plaintiff had obtained a judgment against said Leach-man, with a return of “no property” on an execution ; and that Lcachman had made a final settlement of his accounts as administrator, and had been removed from the office. The chancellor held, that the bill contained no equity; and his decree is now assigned as error.</p> <p>1. The equity of the bill is sustained by Coopwood v. Wallace, 12 Ala. 790, which is only overruled by Jones v. Dawson, 19 Ala. 672, so far as it dispensed with a judgment at law, and return of “no property found.” — See, also, Cater v. Eveleigh, 4 Dess. Eq. R. 19 ; James v. Mayrant, 4 ib. 591; Montgomery v. Eveleigh, 1 McCord’s Ch. 267.</p> <p>2. The complainant’s equity stands on higher ground than in the cases cited, because he was employed by an administrator, who was acting under a will which conferred on him the authority and discretion to have the work done.</p> <p>cited the following cases: Jones v. Dawson, 19 Ala. 672; Colvin v. Owens, 22 Ala. 782; Kirkman, Abernathy & Hanna v. Benham, 28 Ala. 501; Brown v. Lang, 4 Ala. 55 ; 8 Yesey, 4; 3 A. K. Mar. 487 ; 1 Hill’s Ch. 231; Hill on Trustees, 567.</p>

Tried before the Hon. Roeeet DouoheRTY. This action was brought by Marcus and Penolia Sanders, infants suing by their next friend, against William W. Stokes, to recover damages for the conversion of several articles of personal property, which the plaintiffs claimed under a deed of gift from their grand-father, William Sanders, and which had been seized by the defendant, as sheriff of Perry county, under sundry executions against Sherrod Sanders, who was plaintiffs’ father.

<p>Appeal from tbe Chancery Court of Tallapoosa.</p> <p>Heard before the Hon. James B. Clark.</p> <p>This bill was filed by 'William G. Stark and Joseph C. Rawls, against Henry Henderson and others ; seeking the rescission of a contract for the purchase of certain lands, and an injunction of a judgment at law on the note for the purchase-money. The lands were sold, at public auction, by Green W. Hill, as administrator with the will annexed of John 0. Webb, deceased, under the erroneous supposition that the will authorized him to sell; and were purchased by said Stark, who was induced to buy by the misrepresentations of said Hill as to his authority to sell. A note for the purchase-money was given by Stark, with R. Lanier and L>. Neal as sureties, on which suit was af-terwards brought, in the name of said Hill, for the use of said Henry Henderson. This action w7as settled by Stark executing a new note, with other sureties, payable to Henderson; and the bill alleged that, at the time of the execution of this new note, Stark still believed that he had acquired a good title by his purchase, and that Henderson was cognizant of the want of consideration. Henderson, in his answer, denied all knowledge on his part of the consideration of the original note, but admitted that he had “understood from some of the parties that the consideration was land”; and alleged that the new note, on which he had recovered a judgment in his own name, was given in consideration of his extension of the day of payment of the first note.</p> <p>The testimony, so far as is material to the points here decided, is stated in the opinion of the court.</p> <p>On final hearing, on pleadings and proof, the chancellor dismissed the bill; and his decree is now assigned as error.</p>

<p>Appeal from the Circuit Court of Tallapoosa.</p> <p>Tried before tbe Hon. Robert Dougherty.</p> <p>This action was brought by John Hutchinson against General J. Bryant; was founded on the defendant’s promissory note for $30, dated January 10, 1852, and payable on or before the 25th December next after date, to John Hutchinson or bearer ; and was commenced before a justice of the peace, and removed by certiorari, by the defendant, to the circuit court.</p> <p>On the trial, as the bill of exceptions states, after the plaintiff had offered in evidence the note sued on, “the defendant then offered to read the second interrogatory, and answer thereto, of Rhodieey Bryant, as follows :</p> <p>“ iIni. 2. — If you answer that you are acquainted with General J. Bryant, state whether or not you know of any business transaction between him, John H. Hurst and the plaintiff in the above suit. If you answer that you do, please state fully what that transaction was, when it took place, and on what day. Give .the day of the month and week, if you can; and, if you cannot, state your best recollection.’</p> <p>“ lAns. — To the second interrogatory she saith: I do. I know of G. J. Bryant loaning some money to Hurst, and I know of Bryant signing anote as security for Hurst, I can’t recollect the day of the month. I know it was done on Sunday morning after Christmas. The note was dated on some other day. . I can’t recollect as to the day of the month. I know it was done on Sunday morning, in December.’</p> <p>“This answer was objected to by plaintiff. The objection was sustained by the court, and the answer excluded.,', to which defendant excepted.</p> <p>“Defendant then offered to read the third interrogatory, and answer thereto, of said Bhodicey Bryant, as follows ~</p> <p>“ ‘■Int. 8. — If, in answer to the foregoing interrogatory, you state that General J. Bryant signed a note with John II. Hurst, state to whom the note was payable, what amount it called for in dollars and cents, and when due. In what capacity did Bryant sign it ? as principal, or security ? If there was any conversation between the parties at the time, state what it was, to the best of your recollection.’</p> <p>“ ‘A?is. — To the third interrogatory she saith : I can’t read; but I heard both parties, that is, Hurst, Bryant and Spivey, talking about it. They said it was to carry to John Hutchinson. The note was given for $30, as they said; that is my best recollection. It was due the 25th day of December next from the date of the note ; that is the best of her recollection. He signed the note as security in the 2d instance. There was about $10 that Hurst was due Bryant, borrowed money.’</p> <p>“To the reading of which answer plaintiff objected. The court sustained his objection, and excluded the evidence ; and plaintiff (?) excepted.”</p> <p>The exclusion of this evidence, as shown by the bill of exceptions, is now assigned as error.</p>

Tried before tbe Hon. Robeut Boughehty. This action was brought by John F. Dill against Francis M. Thomason, and was founded on the defendant’s promissory note, under seal, for $800, the purchase-money of a slave. The defendant pleaded the general issue, in short by consent, with leave to give any special matter in evidence which might be a defense to the action; and plaintiff replied in like manner.

Tried before the Hon. Joi-iN E. Mooee. This action was brought by Memory Allen and wife, the appellants, against John B. Prater, James Prater, and Andrew J. Prater; and was founded on the defendants’ verbal promise to pay $1,000, in consideration that plaintiffs and one Susan Miller, who were children and heirs-at-law of John B. Prater, deceased, would desist from contesting the probate of their ancestor’s will, and allow the same to be admitted to probate without objection.

APPLICATION by James T. Burnett for habeas corpus, or other remedial writ, to obtain bis discharge from imprisonment in the county jail of Dallas, for an alleged violation of a municipal ordinance passed- by the corporate authorities of the town of Cahaba, fixing the price of a license for retailing spirituous liquors within the corporate limits of said town at $1,000, and prescribing a penalty of $50 per day for a violation of it.

<p>Appeal from the Circuit Court of Jackson.</p> <p>Tried before the Hon. E. W. Pbttus.</p> <p>This action was founded on an open account; was commenced in a justice’s court, in October, 1851; and was removed by appeal, by the defendant, to the circuit court. On tbe trial in that court, the defendant offered in evidence, under the plea of set-off, a judgment in his favor, against the plaintiff, which was rendered by a justice of the peace in 1838. The exclusion of this judgment by the court is now assigned as error.</p>

Tried before tlie Hon. Robebt Doughebty. This action was brought by Sarah J. Vincent against Mills Rogers, and was founded on a writing which was in these words : “Washington, Ala., January 1, 1844. “This is to certify, that Joseph Ii. Vincent deposited in my hands four hundred dollars on the 1st May, 1842, for the use and-benefit of Sarah J. Vincent, to be kept for her use and benefit; which amount of money is to bear the lawful intei’est of eight per cent, per annum.

<p>Appeal from the Chancery Court of Pickens.</p> <p>Heard before the Hon. James B. Clark.</p> <p>This bill was filed by the appellant, on behalf of itself and the other creditors of Erederic C. Ellis, deceased, against the administrator, heirs-at-law, and mother of said Ellis, to subject to the satisfaction of complainant’s; demand certain real estate, alleged to have been conveyed by said Ellis in his lifetime to his mother for the purpose of hindering and defrauding his creditors. The material facts are stated in tlie opinion of the court. The chancellor, by interlocutory decree, overruled a demurrer to the hill for want of equity; hut, on final hearing on pleadings and proof, revoked this order, and dismissed the bill, but without prejudice, for the want of equity; and his decree is now assigned as error.</p>

<p>[bill in equitt bob injunction op judgment at law, specific perpobmance op-parol CONTRACT, AND GENERAL RELIEF.]</p> <p>1. Conclusivtmess of judicial decisions. — In reviewing a final decree in chancery,, rendered on hearing on bill and answer, the appellate court will not reexamine the points decided od a former appeal from an interlocutory-decree dissolving the injunction on the coming in of the answer.</p>

Tried before the Hon. RobeRT Dougherty. This action was brought by Maria Walker, executrix of the last will and testament of John H. Walker, deceased, against Benjamin L. Goodman andRobert Mitchell, partners in the profession and practice of law, to recover damages for the defendants’ negligence and unskillfulness in the institution and prosecution of a suit against Charles Bussey and Irwin Lawson, whereby plaintiff failed to collect the demand on which said suit was founded.

Tried before the Hon.- E. W. Pettus. The prisoner in this case, Henry A. Scott, together with one Jesse West, alias Anson Weston, was indicted for the larceny of a watch, the personal property of David Scott, of the value of $150 ; and was tried at the May term of said court, 185T, when he reserved several exceptions to the rulings of the court, which are thus stated in the bill of exceptions: “On the trial of this case, the evidence tended to show that, on the 13th February…

<p>[INDICTMENT FOB PEEJOEV.]</p> <p>1. fiorm of interrogatory to witness. — A. question in those woi'ds, “Do you know any circumstances which will show that the defendant knew his son went to school in the year 1854,” is neither leading, nor otherwise objectionable in form.</p> <p>2. lielcu inaj of evidence to prove perjury. — Under an indictment charging that the prisoner falsely swore, in a civil suit, “that ho did not send his son to school last year, and did not know that his son went to school,” the fact that ho knew his son went to school, if material to the issue in the civil suit, would be relevant evidence ; seats, if immaterial.</p> <p>S. W/iat bill of exceptions must state, to show error in admission of evidence, or charge of court. — Where an exception is reserved to the admission of evidence, uuder an indictment for perjury, on the ground that it is irrelevant because immaterial to the issue which was involved in the judicial proceeding ; or where an exception is reserved to the refusal of the court to instruct the jury that the fact was immaterial to that issue, — the record must affirmatively show, in either case, that the evidence or fact was immaterial.</p> <p>4. Objection to grand jury. — The objection cannot bo raised for the first time in tlie appellate court, that the record does not show that any of the grand jury except the foreman was sworn.</p>

Ee,om the City Court of Mob ile. Tried before the Hon. Alex. MoKjNSiey. The indictment in this case charged, that Augustas Brooks, “being a negro-trader, broker, or agent for the sale of slaves, sold, offered, or exposed for sale a slave named Rufus, the property of Jason Ii.

<p>[INDICTMENT FOR MDRDER.]</p> <p>1. Punishment of murder in second degree. — On a conviction for murder in the second degree, the court has the power (Code, §§ 3081, 3621, 3623) to fix the imprisonment, and may, in its discretion, sentence the offender to imprisonment for life.</p> <p>2. Sentence on conviction for murder. — Where two persons are jointly tried and convicted for murder, and the court thereupon adjudges “that the said defendants be confined in the penitentiary of the State of Alabama during their natural life-time,” this is equivalent to sentencing each one of the defendant to imprisonment during his natural life.</p>

<p>Eeom the City Court of Mobile.</p> <p>Tried before the Hon. Alex. MoKiNStey.</p> <p>The indictment in this ease was in these words :</p> <p>“The grand jury of said county charge, that before the finding of this indictment, 'William Baker, being then and there the father of one Elizabeth Baker, and within the degree of consanguinity within which marriages are declared by law to be incestuous and void, and then and there knowing the said Elizabeth Baker to be his daughter, did then and there live with the said Elizabeth Baker in a state of adultery, against the peace and dignity of the State of Alabama.</p> <p>“The grand jury pf said county further charge, that before the finding of this indictment, the said William Baker, being then and there the father of said Elizabeth Baker, and within the degree of consanguinity or relationship to the said Elizabeth within which marriages are declared by law to be incestuous and void, and then and there knowing the said Elizabeth to be his daughter, did then and there live with the said Elizabeth Baker in a state of adultery or fornication, against the peace and dignity of the State of Alabama.”</p> <p>The defendant pleaded not guilty; the jury returned a verdict, finding him “guilty as charged in the indictment”; and thereupon the court sentenced him to confinement in the penitentiary for four years.</p> <p>There was no bill of exceptions, and no motion in arrest of judgment.</p> <p>made these points :</p> <p>“1. The indictment is insufficient in law to authorize the judgment and sentence of the court.</p> <p>“2. The jury having found the defendant guilty, and the sentence being made the duty of the court, the time not being specified when the offense was committed, the court cannot determine on the record whether the punishment should be inflicted as provided by the Code, or under the law in force before the enactment of the Code, as it is not known whether the offense was committed before or after the Code went into effect.</p> <p>“3. The indictment contains two distinct offenses, the punishment of which is different, and which, consequently^ cannot be joined.</p> <p>“4. The second count, being in the alternative, (fin adultery or fornication,’) is bad.</p> <p>“5. The indictment does not specify the facts constituting the consanguinity, so that the court can judge whether it was within the prohibited degrees; nor that the daughter was born.in wedlock, so that it may appear that she was the defendant’s daughter in contemplation of law; nor that either the defendant or his daughter was married.</p> <p>“6. The statute does not extend to a living in incestuous fornication, but only punishes adulterous incest. The charge of incestuous fornication, therefore, amounts only to a charge of fornication, which is a mere misdemeanor. Consequently, there was a misjoinder of offenses of different character, and involving different punishments.</p> <p>“7. The averment of the consanguinity, being such as tbe law condemns, is alleged only as a conclusion of law, and is insufficient.”</p> <p>cited Noles v. Tbe State, 24 Ala. 672; Johnson v. Tbe State, 29 Ala. 62 ; Hinton and "Watson v. Tbe State, 6 Ala. 865.</p>

<p>Eeom the Circuit- Court of Eranldin.</p> <p>Tried before the Hon. A. B. Mooes.</p> <p>The prisoner in this case was indicted by the name of “-Skinner, late of said county, whose Christian name is unknown to the grand jury aforesaid.” He demurred to the indictment, ou account of the omission of his Christian name; hut his demurrer was overruled, and he then pleaded not guilty.</p> <p>The bill of exceptions is as follows :</p> <p>“The State introduced one Barnett as a witness, who testified, that he saw the defendant, within less than twelve months before the finding of the indictment, engaged in a game at cards, in a storehouse in the town of Tuscmnbia, in said county, where dry goods exclusively were sold ; that the playing took place at night, only four persons being present, viz., defendant, witness, and two others, all of whom engaged in the game, and who were gentlemen, playing only for a can. of oysters; that no other person was present, and no other person came into the room during the playing; that the doors were closed and locked on the inside, and the windows closed and fastened on the inside; that no person could see the playing from the outside, nor could any person on the outside be seen from within ; and that he had never seen cards played in that house at any other time, either before or since.</p> <p>“This was all the evidence in the case ; and thereupon the court charged the jury, that if they believed from the-evidence that the playing took place in a storehouse, and in the room where the goods were sold, it was a public house, although the playing was at night, with the doors and windows closed.”</p> <p>“The defendant excepted to this charge, and then requested the court to instruct the jury, that a storehouse where dry goods exclusively are sold, situated in a town, is not a public house within the statute against gaming, if the playing was at night,” and under the circumstances above detailed. The court refused this charge, and the defendant excepted.</p>

<p>[indictment for forgery.]</p> <p>1. Laying predicate for secondary evidence. — Secondary evidence of tbe contenta of tbe instrument charged to have been forged, -which is alleged in tbe indictment to have been destroyed or withheld by tbe defendants, cannot be received, on proof that it was last seen, on tbe trial of a habeas corpus at tbe suit of another one of tbe defendants, in tbe possession of bis attorney, who is not called to answer as to bis possession.</p>

EboM the Circuit Court of Marshall. Tried before tbe Hon. ¥m. S. Mudd.

Fbom tbe Circuit Court of Coosa. Tried before the Hon. E. W. Pettus.

<p>FROM the Circuit Court of Blount.</p> <p>Tried before the Hon. S. D. Hale.</p> <p>“ON the trial of this ease,” as the bill of exceptions states, “the State proved, that the defendant, with two or three other persons, on one occasion within twelve months before the finding of the indictment, played cards in an outhouse in Brooksville in said county, in a room of which the door was fastened, and where the parties could not be seen from without; and that said parties went to said room, af that particular time, for the purpose of playing cards. There was no proof that these parties, or any other parties, had ever been to that house for the purpose of playing cards, or for any other purpose.</p> <p>“This was all the proof; and thereupon the court charged the jury, that if they were satisfied from the evidence that the defendant, with two or three other persons, went to an outhouse in said county for the ’purpose of playing cards, and did play therein, within twelve months before the finding of the indictment, he was guilty, whether he or any other person had ever been there at any other time, for the pui'pose of playing cards, or for any other purpose; to which charge the defendant excepted.”</p>

Fjiom the City Court of Mobile. Tried before the Hon. Alex. McXiNstry-. “The prison er-was indicted for bigaifiy, án'-d1 pleaded n'ót -guilty. ..

TfieA-béfofé the ’Iion-V AtfexCM'cK'iNSirRT.' Tjpii'- appellant .was. fined‘;i$50i by ‘the» maydr of the city of Mobile, for an allegediviolation-ofr amofdinance, ;pim bibiting tbe selling of liquor without a license; and removed tbe proceedings, by appeal, into the city court, where tbe following complaint was filed against him: “Mayor, Aldermen, an dr Common Council of Mobile/ Plaintiff claims of defend-ys.

Tried before tbe Hon. Alex. McEjjststry. The appellant in this case was fined $20 by tbe mayor of tbe city of Mobile, for an alleged violation of a municipal ordinance, wbicb prohibited, under a penalty of $20 for each offense, “all hawking and peddling about the streets of tbe city of meat, game, poultry, vegetables, or any other article or commodity usually sold or vended in tbe market.” On tbe trial in tbe city court, to wbicb tbe defendant removed tbe case, “tbe…

Tried before the Hon. RobeRT Dougherty. The indictment in this case charged that the defendant played “at a game of cards, or dice, or at some device or substitute therefor,” &e. The evidence adduced on the trial, and the rulings of the court in relation thereto, are thus stated in the bill of exceptions : “On trial of this case, the solicitor for the State introduced Vm. II.

<p>Appeal from the City Court of Mobile.</p> <p>Tried before tbe Hon. Alex. McKjNSty.</p> <p>The appellant was fined $50 by tbe mayor of tbe city of Mobile, for an alleged violation of a municipal ordL nance, which was in these words : “Be it ordained Dy the mayor, aldermen, and common council of the city of Mobile, that it shall not be lawful for any person to buy, sell or receive from any slave or slaves any commodity of any kind or description whatsoever, without the consent of the owner or employer of such slave or slaves, in writing, expressing the articles so permitted, or unless the owner or employer of such slave or slaves shall personally authorize the same; and if any person1 or persons shall sell or receive from any slave or slaves, without such consent or permission, he, she, or they, so offending, upon conviction, shall be fined in the sum of fifty dollars.”</p> <p>The complaint filed in the city court was as follows:</p> <p>“Mayor, Aldermen, and Com-) Plaintiff charges,that mon Council of Mobile (the defendant, on the vs. (26th day of March, George Eberlin. /1856, traded and sold to sundry slaves, the names and owners of whom are totally unknown to plaintiff, to-wit, one black boy, about twenty years of age, and one yellow boy, stout and heavy, sundry commodities, to-wit, candles and sugar, in the corporate limits of the city of Mobile, without the written or personal assent or permission of the owner, master, employer, or agent, contrary to the ordinance of said city then in full force, duly passed by the proper authorities of said city, and hereto annexed as a part of this complaint; wherefore plaintiff claims that defendant is liable to pay the said sum of fifty dollars, as fined by the said mayor.”</p> <p>The defendant demurred to this, complaint, “because the same is insufficient and uncertain, in this: that it does not state the names of the said negroes with whom defendant is alleged to have traded, nor the names of their owners, employers, or agents; and because the same does not show a breach of the city ordinance.” The overruling of this demurrer, with other matters, is now assigned as error.</p>

¡Appeal from tbie Circuit Court of Russell. -Tried before the-Hon. JohN Gild Siiobtek.

Court of Montgomery. Tried before tbe llou. John Gill Siioetee. This action was brought by Robert A. Moseley against Beverly N. Wilkinson, to recover damages for the loss of a hired slave. The case was before this court at two former terms, and was each time reversed and remanded.— See 18 Ala. 288 ; 24 Ala. 411. A demurrer was sustained to the whole declaration, on account of a misjoinder of counts ; and leave was granted to the plaintiff to amend, on payment of costs.

Tried before the Hon. Robeet Doughehty. This action was brought by the administrator of Erasmus Love, deceased, against Ebenezer G-. Carew and others, to recover a slave which the defendants had purchased at execution sale ! against one E. I). Jarrett, who held possession under a loan from said Love.

Tried before the Hon. Bobeet Dou&heety. The complaint in this case was in these words : “James George, and Matilda > The plaintifFs claim of M. George, admr’x, and Ashley 1 the defendant the follow-~W. Spaiglit, adm’r, (ing slaves, to-wit, Patty, vs. I George, Sam, Nathan, Bobert J. English. /David, Jane, Curtis, Maria, Albert, and Lilly; also, one mule, called Nelly; with the value of the hire or use thereof.

<p>[summary proceeding against sheriff for failing to make money on EXECUTION.]</p> <p>1. Revivor of motion against sheriff. — A summary proceeding against a sheriff,, for failing to make the money on an execution, (Clay’s Digest, 218, § 85,) abates by the death of the plaintiff in execution, and cannot be revived in the name of his personal representative ; and an order of revivor, without the appearance or consent of the defendant, may be vacated at a subsequent term.</p> <p>2. Costs. — la vacating, at a subsequent term, a void order of revivor, it is erroneous to render judgment for costs against the personal representative of the plaintiff; but, if he appeals from such judgment, giving bond or security for the costs, the error will be amended at his costs.</p>

<p>Appeal from the Circuit Court of Lawrence.</p> <p>Tried before the Hon. SydeNHAM Mooee.</p> <p>This action was brought by William Gunter against William D. Leclcey, to recover damages for the conversion of two slaves, named Addison and Harriet. The defendant pleaded, in short by consent, 1st, not guilty; 2d, that plaintiff, on the 25th November, 1858, in this State, being then a negro-trader, sold said two slaves to defendant without a license; 3d, that plaintiff, on the day last mentioned, and in said county, being a negro-trader, and then and there engaged in the business of selling slaves, sold and delivered to plaintiff, without alicense, two other slaves, named Mary and Eliza, and received in part payment for them tbe slaves mentioned in tbe complaint; 4th, that plaintiff, on said 25th November, 1853, and in said county, being then and there a negro-trader, and engaged in the business of selling slaves, sold and delivered to defendant, without a license, the two slaves Mary and Eliza, for the sum of $1,900, and received from defendant, in payment of said slaves, $100 in money and the slaves mentioned in the complaint.</p> <p>The cause was tried, as appears from the bill of exceptions, on an agreed statement of facts, which was as follows:</p> <p>“It is admitted that, in November, 1853, the plaintiff was a negro-trader, and, as such, sold to defendant, in Lawrence county, Ala., two negroes, named Mary and Eliza, and, in payment therefor, received the negroes Addison and Harriet, for the conversion of which this suit is brought, and $100 in money; that plaintiff afterwards went to defendant’s premises in, said county, in defendant’s absence, and took therefrom, without his knowledge, or consent, the two negroes first above named, and left on defendant’s premises the two negroes last above named that shortly afterwards, meeting with defendant, he told him what he had done, and offered to return to him the $100 paid by defendant as aforesaid, which defendant refused to accept; that afterwards, and before this suit was brought, defendant sued plaintiff in detinue for said ne-groes first above named, and recovered them in said action, and now has them in his possession; that defendant also has in his possession the negroes now sued for,, and has had them since they were left in his possession by plaintiff as aforesaid. It is admitted, also, that at the time of the said trade between plaintiff and defendant, plaintiff had no license, granted by the probate court of said county of Lawrence, to sell or offer for sale said ne-groes so sold and traded by him to defendant; that the slaves Mary and Eliza went into defendant’s possession at the time of said sale, and the slaves Addison and Harriet went into plaintiff’s possession under said sale, and remained in his possession until he returned them to defendant’s possession as above stated; that defendant recovered a judgment against plaintiff, in said action of detinue for the slaves Mary and Eliza, at the September term of said court, 1854, which is hereby referred to and incorporated as a part of this agreement. It is further admitted that the negroes now sued for are worth $1200 ; that plaintiff demanded said negroes of defendant before the institution of this suit, and defendant refused to give them up ; and that plaintiff, when he took said negroes Mary and Eliza from plaintiff’s possession, and left in his possession the slaves Addison and Harriet, did so because he thought himself defrauded in the trade, and erroneously supposed that he had the right to rescind the trade, and did so with the intention, as declared by him at the time, of rescinding the trade.”</p> <p>“Thereupon the court charged the jury, that if they believed the aforesaid state of facts to be true, they must find a verdict for the defendant; to which charge the plaintiff excepted,” and which he now assigns as error.</p> <p>made these points:</p> <p>1. The statute on which the defense is ^founded must be strictly construed. — Bettis v. Taylor, 8 Porter, 572 ; Crawford v. The State, Minor, 143 ; United States v. "Wrigglesworth, 2 Story, 369; 6 Watts & Serg. 269; 3 Pick. 229; 9 Pick. 412; 7 B. & C. 569; 6 ib. 712; 10 ih. 527; 3 Bing. 580; 2 Wheaton, 119 ; 5 Wheaton, 76-96 ; 1 Gall. C. C. 114.</p> <p>2. The transaction shown by the admitted facts is not within the statute. The statute applies only to sales, not to exchanges; while the facts show an exchange. The distinction between the two kinds of contracts is clear and well-defined. — 1 Parsons on Contracts, 436, c ; Chitty on Contracts, (4th Amer. ed.)297 ; Smith on Contracts, 330; Sheppard’s Touchstone, 290; 2 Greenleaf s Cruise’s Digest, title 32, cli. 9, §§ 4, 19; Jackson v. Delancey, 4 Cow. 427 ; Vail v. Strong, 10 Vermont, 57. Nor is the contract within the mischief intended to be guarded against. It did not increase the number of slaves in the State, nor diminish the number in plaintiff’s possession on which he was required to pay license. If Gunter brought but two slaves into the State for sale, he cannot be required to pay license on four.</p> <p>3. If the contract be within the statute, it is no obstacle to plaintiff’s recovery. Ilis right of action is independent of the contract. He has a right to recover on his possession alone, without disclosing the means by which he acquired that possession. — Armstrong* v. Toler, 11 Wheaton, 258, and cases therein cited; Theobald on Principal and Surety, 387.</p> <p>4. Whenever the title to property has passed by an executed contract, it cannot be revested by capture, nor by any other mode of acquiring possession. — Windham v. Childress, 7 Ala. 358; Rochelle v. Harrison, 8 Porter, 357. If Gunter had hired out the slaves to any other person than Leckey, could it be contended that a recovery might be defeated on this ground ?</p> <p>5. Although the contract be within the statute, it is not available as a defense in this case. The purchaser can only take advantage of the statute in the particular mode pointed out; that is, by action to recover the purchase-money, commenced within the specified time.</p> <p>6. The onus was on the defendant. — State v. Hayward, 2 Gall. C. C. 485.</p> <p>1. The contract between the parties was a sale, and not an exchange. Smith on Contracts, 330; Sheldon v. Cox, 3 Barn. & Cress. 420; Smith v. Clark, 21 Wendell, 83; Poster v. Pettibone, 3 Selden, 433.</p> <p>2. Whether the transaction, technically considered, was a sale or an exchange, it is equally within the statute, which was intended to prohibit all speculation and trading in slaves by the persons designated. To exempt a technical exchange from the operation of the statute, would be to allow that to be done indirectly which cannot be done directly. — 13 Ala. 29.</p> <p>3. The contract, being prohibited by statute, is illegal and void. — Givens v. Rogers, 11 Ala. 546 ; McGehee v. Lindsay, 6 Ala. 20; Smith v. Mawhood, 14 Mees. & W. 452; Cope v. Rowlands, 2 Mees. & W. 157; Milne & Co. y. Huber, 3 McLean, 214 ; Hale v. Henderson, 4 Humph. 199; Bell v. Leggett, 3 Selden, 176.</p> <p>4. An action cannot be maintained in affirmance of an illegal contract, or to enforce a right growing out of such contract; though a recovery may be had in disaffirmance of such contract, or to prevent the defendant from retaining a benefit derived from it. The true test is, whether the plaintiff requires the aid of the illegal transaction to establish his claim. — McG-ehee v. Lindsay, 6 Ala. 22; 8 Cowen, 24; 14 Mees. & ~W. 452.</p>

Tried before tbe Hon. C. W. Rapier. The complaint in tbis case was in these words : “Lucy H. Masons The plaintiff claims of the defend-vs. >ant $155, due for the hire of a negro Thomas Hall.

Tried before the Hon. Thomas A. WaiKER. This action was brought by Meyer Goldsmith, against M. S. Stetson & Co., to recover damages for the wrongful and malicious suing out of an attachment; and was commenced on the 7th January, 1856. The defendant pleaded not guilty, in short by consent; and issue was joined on this plea.

<p>Appeal from the Circuit Court of Mobile.</p> <p>Trie'd before the Hon. Thomas A. "WaleeR.</p> <p>This action was brought by M. "W. Peterson against Cox, Brainard & Co., to recover damages for the defendants’ failure to deliver at Columbus, Mississippi, certain goods which were shipped at Mobile, by Calvert & Co.? 011 board the steamboat Eliza Battle, of which the defendants were the owners, to be delivered to the plaintiff at Columbus; and which were carried up the river as far as Newport, 35 or 40 miles below Columbus, the highest point to which the low stage of the water permitted the boat to ascend the river, where they were deposited in a warehouse, and there a portion of them was destroyed by fire. The defendants pleaded the general issue.</p> <p>On the trial, as appears from the bill of exceptions, the plaintiff offered in evidence, after proving its execution, the bill of lading for the goods, which stipulated that the goods should be delivered to the plaintiff at Columbus, “dangers of the river excepted”; and proved the loss of the goods as above stated. The defendants offered in evidence an advertisement inserted by them in the newspapers, relative to the voyage of the said steamer to' Columbus, in which it was stated that they would give “clear bills to Gainesville.” They also offered to prove,- “that the shippers knew that said boat, though advertised to go to Columbus, would give clear bills of lading only to Gainesville, which is below Newport, and that she was to carry the goods to Columbus only in case the water permitted; that they knew of this advertisement, and that the true contract between them was to that effect; and that the bill of lading was drawn without restriction by mistake.” The court excluded this evidence, on plaintiff's objection, on the ground that the bill of lading could not be contradicted by parol proof; to which defendants excepted.</p> <p>“The defendants then offered to prove that another bill of lading for said goods was made out by the clerk of the boat, was forwarded to plaintiff by the boat, with the goods, and by him received; which bill of lading contained the restriction of ‘water permitting’ as to any point beyond Gainesville; and that the clerk was instructed not to give clear bills on that voyage to Columbus. It was not stated whether this bill of lading was filled up before or after the boat left the wharf. This evidence was offered in connection with the previous evidence, and separately: and was rejected by the court, on the ground that the bill of lading could not be contradicted by such evidence”; to which defendants excepted.</p> <p>The defendants offered in evidence, also, the depositions of Geo. "W. Cloudis, Richard A. Jackson, and Gideon B. Massey, each of whom testified to the existence of a custom among the steamboat-men on the Tom-beckbe river, in the event of the water in the river falling before their boat reached its destination, to land their cargoes at the highest point which they could safely reach, and there store the goods in warehouses. The court excluded this evidence, on plaintiff’s objection, and the defendants excepted.</p> <p>It was proved, that the plaintiff, after the goods bad been stored in the warehouse at Newport, hauled away a portion of them, paying the freight and storage.</p> <p>Upon this evidence, the pourt instructed the jury,—</p> <p>“1. That by the obligation of the bill of lading, the defendants were bound to carry the goods safely, and to deliver them at Columbus; that although the goods were landed and stored in the warehouse, because the water was too low to allow the boat to go to Columbus, still they were in the warehouse at the defendants’ risk, whose obligation was in the nature of an insurance until the goods reached their destination ; that accidental fire, not being the act of God, was not a danger of navigation, such as would excuse the defendants ; and that such loss by fire, while the goods were in the warehouse, if there deposited by the defendants, was at their risk.</p> <p>“The defendants excepted to this charge, and requested the court to instruct the jury, that if the plaintiff received and hauled away part of his goods from the warehouse, paying the freight for those taken; and tbat this was done with the intention of taking away the remainder so soon as his wagon could return, — then such acceptance, with such intention, determined the contract of the carriers, and discharged them from further liability. The court refused this charge, and instructed the jury, that the acceptance of part of the goods excused the carriers only as to that part; unless the plaintiff actually received all tlie goods, and left part with the warehouse-man, on his own account, until he could haul them away; and the defendants excepted, both to the charge given, and to the refusal to charge as requested.”</p> <p>The rulings of the court on the trial, both in the rejection of evidence offered by the defendants, and in the instructions to the jury, are now assigned as error.</p>

The original petition in tbis case was filed by Samuel B. Tuttle and Lucretia, Ms wife, to obtain an order for the removal of the property of Elihu Carlisle, a minor child of Elihu Carlisle, deceased, to the State of Connecticut. It alleged, that Mrs. Tuttle, who was the widow of said Elihu.

<p>Appeal from tbe Probate- Court of Dallas.</p> <p>In the matter of tbe guardianship of Adam S. H. Led-low, a minor, who was one of tbe heirs-at-law and distrib-utees of Adam Ledlow and Obedience Ledlow, both deceased; on'the application of Alfred B. Lary to remove tbe property of said minor to tbe State of Arkansas. All the material facts of the case are stated in tbe opinion of the court.</p>

Tried before tbe Hon. Thomas A. WaleeR. The defendant in this case was summoned “to answer tbe complaint of J ames 'Williams, administrator of Edward Williams, deceased”; while tbe original complaint, as was decided by tbis court at its June term, 1856, (27 Ala. 644,) put in issue tbe plaintiff’s individual title.

Tried before tbe Hon. E. W. Pettus. Tiie complaint in this ease was as follows : “John C. H. B,eed\ Tbe plaintiff claims of the dews. /fendants tbe sum of $842 40, due Nathaniel J. Scott, (bypromissory note,made by them James E. White, jand Wm.

<p>Appeal from the Probate Court of Tuskaloosa.</p> <p>IN the matter of the final settlement of the estate of "William I. Smith, deceased, which was transferred from the probate court, on account of the incompetency of the presiding judge, to the registrar in chancery. In ascertaining the widow’s distributive share of the estate, the coui*t below refused to make any deduction or abatement on account of certain slaves which she held under deed of gift from her father, dated March 11, 1839; which deed, it was contended by the executors and other dis-tributees, created in her a separate estate. An exception was reserved to this ruling of the court, and it is now assigned as error.</p>

<p>[trial of right of property in slates.]</p> <p>1. Objection to competency of witness. — A deposition Till not be suppressed, on account of the incompetency of the witness on grounds of public policy or interest, when the attorney of the objecting party, with knowledge of the incompetency, attended the examination, and cross-examined the witness, without objecting to his competency.</p> <p>2. Declarations of party inpossession of personal property. — The declarations of the defendant in execution, while in possession of the personal chattels in controversy, and explanatory of his possession, are admissible evidence against the claimant, on the principle of m ¿resto; but his declarations respecting the source of his title, as that he claimed them as a distributee of his father’s estate, are not admissible.</p> <p>3. Witness cannot testify to insolvency. — A witness, “well acquainted with the affairs of” another person, cannot bo permitted to testify that the latter was “insolvent.”</p>

<p>[ACTION BY CORPORATION AGAINST DELINQUENT STOCKHOLDER.]</p> <p>1. Amendment of complaint. — In an action by a corporation, the complaint may he amended by the correction of a mistake in setting out the plaintiff’s name.</p> <p>2. Name of corporation. — Although a name is necessary to the existence of a corporation, and is generally expressed in the charter, it may nevertheless be acquired by usage and implication.</p> <p>3. Construction of act incorporating Central Plank-Road Company. — ünder the act incorporating the Central Plank-Road Company, (Session Acts of 1849-50, p. 208,) the corporate existence of said company could not commence until $50,000 of stock had been subscribed ; but the actual payment of $10 on each share is not a condition precedent to the existence of the corporation. The branch roads, however, which the charter authorizes, declaring them “hereby incorporated,” are not limited to any amount of stock, but, on accepting the provisions of the act, and organizing under it, thereby acquire a corpjgiate existence.</p> <p>4. Notice to stoclcholders of calls far stock. — Whore the charter oí the corporation does not require a written notice of calls for stock, a verbal notice by the secretary, by order of the president, in pursuance of a resolution, of the board of directors, is sufficient.</p> <p>5. Competency of stockholder as witness for corporation. — The secretary of a corporation, who was also a stockholder, but transferred all his stock after the institution of the suit, is a competent witness for the corporation, in an action against a delinquent stockholder, although the corporation was indebted at the time he transferred his stock, and continued indebted up to the time of the trial.</p> <p>6. Fraudulent management of corporation. — The fraudulent management of a cor. poration, or the fact that its operations are inconsistent with the purposes of its charter or the public interest, although it might authorize proceedings for a forfeiture of its charter, is not available as a defense to a delinquent stockholder, when sued by the corporation.</p> <p>1. Parol evidence not admissible to affect written contract.- — A parol agreement, made prior to or contemporaneously with a written subscription for stock in a plauk-road company, relative to the manner in which the money should be appropriated, cannot be l’eceived to vary the terms of the written contract.</p> <p>S. Declarations of president not admissible against corporation. — The declarations of the president of a plank-road company, relative to the manner in which the money subscribed for the road should be appropriated, are not admissible evidence for a delinquent subscriber for stock, when it is not shown that such declarations influenced the defendant’s subscription, or that they were made while the declarant was acting- as the agent of the company in receiving subscriptions for stock.</p>

<p>[ACTION COMMENCED BY ORIGINAL ATTACHMENT AND GARNISHMENT.]</p> <p>1. Garnishee's liability for interest. — A garnishee, who interposes a dilatory plea, cannot raise the question of his liability for interest during the period intervening between the service of the garnishment and the rendition of final judgment.</p> <p>2. Interest incident to debt. — Interest attaches as an incident to a debt or money demand, as contra-distinguished from mere damages for the breach of a contract, from the time of its maturity.</p> <p>3. Irregularities in proceedings against defendant in attachment not available to garnishee. In an action against a non-resident partnership, commenced by original attachment and garnishment, the fact that the individual names of the partners composing the firm nowhere appear in the proceedings, is a mere irregularity, of which a garnishee cannot take advantage on error.</p>

IN the matter of the final settlement of the estate of Mrs. Elizabeth Wilson, deceased, by Wilson Q-. Mustin, her administrator.

Tried before the Hon. C. ~W. RapieR. This action was brought by Marmaduke Devers, against James Bonham and James Pool, to recover damages for the false and malicious speaking by the defendants of certain words charging plaintiff with the crime of petit larceny.

<p>[action on promissory note by transferred against maker.]</p> <p>1. Sufficiency of complaint. — In. an action on a promissory note, by transferree against the maker, tbe complaint must aver the assignment, or contain some other allegation to show the plaintiff’s ownership.</p> <p>2. Substantial defect in complaint not cured by judgment by default. — A substantial defect in the complaint, on account of the omission of a necessary allegation, is available on error, after judgment by default.</p> <p>3. Signature to complaint. — A complaint, under the Code, (§ 2234,) must be signed by either the plaintiff himself, or his attorney.</p>

Tried before the Hon. C. W. RapieR. This action was brought by the appellant, and was founded on a promissory note for $175, which was given for the hire of two slaves, named Gabe and Mary, for the year 1852.

Tried before the Hon. S. D. Hale. This action was brought by John Morton against John Bradley, to recover damages for tbe killing of a slave; and was commenced in October, 1854. The sufficiency of the complaint was determined on a former appeal.— See 27 Ala. 640. The defendant interposed seven pleas in bar of the action; to the third, fourth, and fifth of which, demurrers were sustained. The other pleas, on which issue was joined, were as follows : \ “1.

In the matter of the last will and testament of Milton Powell, deceased, which was propounded for probate by David H. Williams, as next friend of the infant legatees, and contested by the testator’s distributees and next of kin.

Tried before the Hon. Nat. Cook. The original complaint in this case was as follows : “Lewis Turner h The plaintiff claims of the de-vs. >fendant the sum of $300, for work Seaborn J. Roundtree.

The record does not show the name of the presiding judge. This action was brought by Wiley, Banks & Co., against Overdeer & Aughinbaugh, as partners, Benjamin E. Gibson, and Samuel C. Norwood; and was founded on the defendants’ promissory note for $300, dated June 6th, 1850, and payable May 1st, 1852.

Tried before the Hon. C. W. Rapier. This action was brought by Mrs. Jane Sterns, the appellant, against the administrator of Samuel Weathers, deceased, who was her former husband, to recover |500 belonging to her separate estate, alleged to have been received by said Weathers on the 8th November, 1849.

Heard before the Hon. James B. Claek. This bill was filed by Mi’s. Harriet Smedley, by ber next friend, to obtain a divorce from ber bnsband, George Smedley, on tbe ground of cruelty.

The record shows these facts: The estate of Alfred Van Clock was decreed insolvent, by said probate court, on the 31st August, 1850, on the report of his administratrix. On the 28th June, 1852, decrees were rendered by said court against said administratrix, in favor of the several creditors of the estate, one of whom was Elbert Hoogland, for their pro-rata share of assets in the hands of the ad-ministratrix.

<p>Appeal from the Circuit Court of Mobile.</p> <p>Tried before the Hon. C. W. Napier.</p> <p>This action was brought by Henry & Mott against Moses Waring, to recover $105 35, the amount of an open account for china-ware sold and delivered by plaintiffs, on the 11th August, 1852, to Jacob B. Walker, for the steamboat Alamo, of which defendant was at that time a part-owner. On the trial, as the bill of exceptions states, “having given notice to that effect, the plaintiffs offered Thomas Henry, one of their firm, as a witness for them.. The defendant objected, and prayed the court to require said Henry to state to the court what he proposed to prove, so that the defendant might deny it on oath, if he thought proper to do so, and have it excluded from the jury. But the court decided, that said Henry might be sworn, and give his evidence before the jury; that the defendant might also be sworn to testify, and that the jury would be instructed not to regard as evidence the portions of the plaintiff’s evidence which were denied on oath. The plaintiff’ Henry was accordingly sworn and examined generally as a witness; to which the defendant excepted.”</p> <p>Said Henry testified, “that Jacob B. Walker came to plaintiffs’ store, at the date of the account sued on, and purchased the goods, saying that he bought them for the use of the Alamo, of which he was a part-owner, and that he was the ship’s-husband of said steamboat; that the goods were sent, and, he presumed, received by the vessel, although he could not testify to that fact — he knew that they were delivered and sent on the 11th August, 1852 ; that said Walker was not the captain of said boat, and he could not state who was. He further testified to conversations with defendant, in the summer of 1854, in which he demanded payment of said account, and defendant admitted that be was a part-owner of said vessel when the goods were sold. No notice of the claim was shown before the boat was sold, and the proceeds divided. The account was produced, and at the bottom of it was written a certificate, dated the 12th May, 1853, and signed by said Walker, (and which said Henry testified was sisned by Walker at the time of its date,) stating that the account was correct; but it was admitted by the plaintiffs, before going into the trial, for the purpose of preventing a continuance, that said Walker, if present, would testify that said certificate was signed by mistake, and that he knew nothing about this account, and_ supposed he was signing an account for another boat.”</p> <p>The above is all the evidence set out in the bill of exceptions.</p> <p>“The defendant requested the court to instruct the jury, among other things, that to bind a joint owner of.the boat, it must appear that the goods were obtained for that vessel, and that she got them; also, that if they believed the goods were bought by Walker for the Alamo, but were got by some other vessel, the defendant Avould not be bound as a joint owner of the Alamo, although Walker also was a part-owner.</p> <p>“The court refused to give this charge, and instructed the jury as follows: That to make the owners of the boat liable, it was not imperatively necessary that the goods should have been actually received by or upon the boat; but, if they were purchased by an agent of the owners of the boat, as such agent, and delivered to him, or according to his directions, and such purchase was made pursuant to direct authority from the owners, or within the scope of a general authority from them to him to make purchases for the boat, — in such case, the owners would be liable for the goods, whether they were received on the boat or not, and they would be so liable though they resided at the place where the goods were furnished.</p> <p>“The court further instructed the jury, that if the plaintiffs were entitled to recover, they were entitled to interest on the amount due them from the time it was payable ; and that, if there was no agreement or understanding between the parties, at the time of the purchase, as to the time of payment, the debt was due presently, audit would be proper to allow interest on it from the time of the purchase.”</p> <p>The defendant excepted to the charges given, as well as to the refusal of the charge requested; and he now assigns as error all the rulings of the court to which he reserved exceptions.</p>

Tried before the Hon. A. B. Mooee. This action was brought by A. D. Carey, judge of probate of Conecuh county, who sued for the use of the county, against William E. Ellis, John Ellis, and George Kyser; and was founded on the defendants’ penal bond for $400, conditioned that they should keep in repair, for the term of five years, a certain, bridge which the said William E. Ellis, under a contract with commissioners appointed by the commissioners’ court for that purpose, had…

<p>[ACTION ON PROMISSORY NOTE — SET OPJ? — PARTNERSHIP,]</p> <p>1. Action at law between partners.- — An action at law lies on a promissory note, given by one partner to bis co-partner, on tbe formation of tbepartnerskip, for one half the value of the stock of goods furnished by the latter.</p> <p>2. What constitutes partnership. — -An agreement between two partners, on the dissolution of their firm, to the effect that one should take all the goods on hand, and the notes and accounts due the firm, and, in consideration of the other’s interest therein, should pay all the outstanding debts of the firm, “and give him, from that time forward, one-third interest in the profits arising from the sale of said goodsthe latter “agreeing to share one-third of the losses that might accrue from said sale of said goods, and to act as clerk in the sale of said goods” for the former, — constitutes them partners inter sese.</p> <p>3. Set-off at law. — A demand accruing to defendant under a contract with plaintiff which constitutes them partners inter sese, is not available as a set-off' at law.</p>