Volume 31 — Alabama Reports

Tried before tbe Hon. Alex. McEjkstp.y. Assumpsit by T. & G-. Forbes, against Daniel Walker, on«a written guaranty for tbe “ultimate payment” of goods furnished by plaintiffs to one Cogburn. Tbe former report of the case (see 25 Ala. 139) discloses all the material facts as then presented; and the additional facts adduced on the second trial, after the remandment of the cause, are stated at sufficient length in the opinion of the court.

<p>[ACTION AT law FOR BREACH OF SPISdAL CONTRACT.]</p> <p>1. Construction of contract, as to rights and liabilities of parties, and measure of damages for breach. — Plaintiff having built a mill on defendant’s land, thereupon the parties entered into a written contract, containing the following stipulations : That plaintiff should ‘'continue to keep the mill in good order, or by performing all the mechanical labor necessary to keep the machinery in good running order,” should “receive for his services one third of the toll arising from said mill,” and should “have the privilege of ginning his cotton and threshing his grain toll free;” that defendant should “continue to furnish the mill-seat, with all the necessary conveniences and appurtenances thereto, and all materials necessary for putting said machinery in order for running,” should “at all times furnish a miller,” and should be “entitled to two thirds of the profits ;” and that, if either party wished to sell his interest in the mill, he skould“give the other the refusal of said interest.” Held, 1st,that defendant’s right to sell the mill-seat, with his interest in the mill, did not depend upon the plaintiff’s assent to the sale, but upon his first offering plaintiff an opportunity to purchase it; and, 2d, that the measure of damages, which the plaintiff was entitled to recover on account of an unauthorized sale by the defendant, was not the value of his labor on the mill at the time of the sale, but the value of one third of the toll, with the privilege of ginning his cotton and threshing his grain toll free, less the value of the services necessary on his part to keep the mill and machinery in running order.</p> <p>2. Relevancy of evidence to prove consent. — Where the issue is, whether the plaintiff consented to a sale by defendant of a mill in which they were both interested, evidence showing that his consent was fraudulently procured is irrelevant.</p> <p>S. Parol evidence of contract within statute of frauds. — Parol evidence cannot be received in reference to a contract which the statute of frauds requires should be in writing.</p> <p>4. General objection to evidence. — When evidence is on its facoprima-fade illegal, a general objection is sufficient to exclude it.</p>

Tried before the Hon. E. W. Pettus. This ease was commenced by original attachment, sued out on the ground that the defendant absconded to avoid the service of process.

<p>Appeal from tbe Circuit Court of Mobile.</p> <p>Tried before tbe Hon. Thomas A. ‘Walker.</p> <p>This action was brought by David Jackson against Albert Stein, “to recover f 50 damages for refusing to furnish plaintiff with water from tbe Mobile water-works,” of which said Stein was the lessee; was commenced in a justice’s court, and removed by appeal, by the defendant, to the circuit court; where, as the judgment entry recites, the parties agreed to dispense with a jury, and submitted the case to the decision of the court, “upon the facts as well as the law.” The court rendered judgment for the plaintiff, for «¡>50, besides costs; and its judgment is now assigned as error. The view taken of the case by this court renders it unnecessary to notice the facts set out in the bill of exceptions.</p>

<p>Appeal from tbe Circuit Court of "Wilcox.</p> <p>Tried before tlie Hon. JohN G-ill Shoetee.</p> <p>This action was brought by John Q-. McArthur against the appellants, as partners, to recover damages for the conversion oí a hired slave. The suit was commenced on the 14th February, (?) 1854; but the complaint, which is styled by the clerk “amended complaint,” alleges the conversion to have taken place on the 80th February, 1854, and is marked “filed 6th March, 1854.” The defendants pleaded, 1st, the general issue; and, 2d, that they hired the said slave from the plaintiff, on or about the 1st January, 1854, for the whole of the year 1854, and that the term of hiring had not expired at the commencement of the suit. The court sustained a demurrer to the second plea, and issue was joined on the first.</p> <p>On the trial, as the bill of exceptions states, “the plaintiff introduced evidence tending to show that, on the last of December, 1858, the defendants wrere engaged, as co-partners, in making brick in Wilcox county; that he hired to them, for the year 1854, two slaves, one of whom was the negro woman for whose conversion this suit is brought; that said negro woman was removed from the defendants’ brick-yard, some time after the middle of January, 1854, to the plantation of the defendant Fail; that she was there put to picking cotton on the low grounds, where there was more or less mud and water; and that, on the third day after she commenced work on the plantation, she was taken sick, and, after a few days illness, died. With a view of showing misconduct and neglect of duty on the part of plaintiff, the defendants attempted to show that said negro womau, within one month before said hiring, and while in plaintiff’s possession, had given birth to a child, which had died. This evidence was admitted without objection on the part of plaintiff; and, in rebuttal on this point, the plaintiff introduced a witness who lived about a quarter of a mile from his house, and who testified, that about the last of November, 1853, his wife left home, to go to plaintiff’s house, and, as she started off in that direction, told him. that she had been sent for to seo a negro woman there who was about to have a child; and that his wife told him, when she came home, that the negro woman had been delivered of a child. To each; portion of this evidence the defendants objected; the court overruled their objections, and they excepted.</p> <p>“It was in proof, that at and before the commencement of this suit, and while the defendants were co-partners, the defendant Miles said, that said negro woman was hired by them to work in their brick-yard. On this point, the defendants’ counsel, asked the court to instruct the jury, that the admissions of Miles were not evidence against his co-defendant, as this was an action of tort. The court refused to give this charge, but instructed the jury, that what Miles may have said, while he and Fail were partners, in reference to the contract of hiring, was evidence against both as to the terms of the contract, hut was not evidence against Fail as to the conversion ; and to the refusal to give the charge as asked the defendants excepted.</p> <p>“It was in proof, also, that the defendants gave plaintiff a note for the amount of the hires of said two slaves, due the 1st January, 1855 ; and that plaintiff, after the commencement of this suit, sold said note to one Miller, hut afterwards, before it fell due, and before any part thereof had been paid, got it hack into his possession and ownership, by giving said Miller bis own note in exchange. On this point, defendants’ counsel asked tbe court to instruct tbe jury, tliat if plaintiff, after tbe commencement of tliis suit, had sold said note, and got it back under tbe circumstances stated, this was an assertion of tbe original contract, and be could not recover for tbe conversion of tbe negro ; which charge tbe court refused to give, and tbe defendants excepted. *</p> <p>“The defendants asked the- court to charge tbe jury, also, that to constitute a special hiring of a slave, it was necessary that tbe parties should agree, that tbe slave should work at a particular place or business, and should engage in no other employment. This charge tbe court gave, but with this qualification : that it was not necessary to show that these express words, to-wit, ‘that tbe slave should engage in no other employment,’ were used by the parties in making the contract; and that they might determine from the evidence, whether such was the understanding and agreement of the parties at the time of the hiring, and was embraced in their contract; to which qualification of the charge asked the defendants excepted.</p> <p>“The court further charged the jury, ‘that if there was a mutual understanding and agreement between the parties that the negro was to work at the brick-yard, and the defendants removed her from the brick yard, and put her to work on a. plantation, such disposal of her would violate their contract.’ The jury afterwards returned to ask an explanation of this charge, and inquired of the court, ‘whether the defendants should have hired the slave to work at one business exclusively, in order to constitute a special hiring.’ In reply to this question, and in further instructions as to the law, the court said, that if a man hired a horse from a livery-stable, to go to Allenton, he had no right under this contract to go to another and a different place, and that such a contract would be a special contract; and closed by saying, ‘that if the defendants hired the negro from the plaintiff to work at the brickyard, aud this was their agreement with him, such contract was a special hiring;’ and to this charge, also, the defendants excepted.”</p> <p>The sustaining of the demurrer to the second plea, and the several rulings of the court to which exceptions were reserved, are now assigned as error.</p>

<p>Appeal from the Circuit Court of Autauga.</p> <p>Tried before the Hon. Andrew B. Moore.</p> <p>Assumpsit by J. S. "Winter & Co., (a firm composed of Joseph S. Winter and John G-. Winter,) against Martin R,. Bnrt, as the maker of a promissory note for $1060 66, dated Montgomery, April 18, 1851, and payable on tbe 1st January next after date, to the plaintiffs’ order, at their office in Montgomery; which note was proved to have been given in part payment for certain machinery manufactured for defendant, at the “Winter Iron Works” in Montgomery, by Gindrat & Co., which firm was composed of John G-. Winter, Joseph S. Winter, and Abram Gindrat. No pleas appear in the record.</p> <p>On the trial, as appears from the bill of exceptions, the plaintiffs offered in evidence the note sued on, with the written contract for the manufacture of the machinery; and proved that the note was given in part payment for the machinery, as stipulated in the contract. “There was evidence tending to show, that the machinery specified in the contract was delivered to the defendant, and was put up for him by one Doyle; he having refused an offer by plaintiffs to have said machinery put up, for a sum named, and to guaranty its being well done. The defendant introduced his son John as a witness, who testified, that he had never been engaged about a steam-engine, before being engaged with the one bought by his father from plaintiffs; that when he took it in charge as chief engineer, he had only about eight days experience, acquired by serving under Doyle for that time; that he knew nothing about the amount of pressure the boilers of that engine would bear, — did not know what was meant by giving .head to the steam, nor what were the parts of the steam-engine, nor their use, nor how to manage the packing and rings around the piston in the cylinder where the steam escaped from the cylinder, nor the value and cost of a cylinder, piston, piston-head, or flywheel, used in steam machinery, or of any other part of said machinery; that he had never known one to be sold, at either private or -public salo; that he had never put up such machinery, but had seen that machinery put up by Doyle; that he had attended a saw-mill about three years, and had sufficient knowledge of mills of that description to say how many hands were necessary to attend. The defendant offered evidence tending to show that, after said machinery had been run about six months, and while the chief engineer (said John Burt) was absent, the fly-wheel broke; that another wheel broke about two months afterwards, when said chief engineer was again absent; that the packing around the-piston-head was too small for the cylinder, thereby letting the steam escape; and that the piston-rod also broke. There was evidence, also, tending to show that defendant took said broken machinery to the ‘"Winter Iron Work,s’ and there had them repaired; that the packing was found, by the machinist who examined the cylinder, to be sound and perfect; that the way to manage packing in a cylinder, in order to prevent the escape of steam, was to screw out, by means of screws placed in it for that purpose, the rings composing it; that said machinist, by thus turning the screws a few times, made the packing fit, and that this was all that was done to make it fit. Said John Burt further testified, that he did not know the use of said screws, and had never made an attempt to screw out the packing. Defendant then asked Mm, what was the value of said machinery at public sale; and the witness answered, that it was worth about $1,000. Plaintiffs objected to this question, and excepited to the-action of the court in overruling their objection.”</p> <p>“The defendant asked one Gotbell, a witness, if said machinery cost $3,200, and was warranted to cut 3,000 feet of inch boards in a day, and yet cut but 1500 feet in a day, how much would it be worth; and the witness answered, that it would be worth about one half of that sum. The plaintiffs objected to this question and answer, separately, and excepted to the overruling of their objections. The defendant asked said Gotbell, if ho had ever known theories to fail; and the witness answered, that he had. The plain tiffs objected to this question and answer, separately; but the court overruled both objections, and allowed the answer to go the jury, to test the knowledge of the witness; and to each ruling plaintiffs excepted.</p> <p>“The defendant introduced ^a letter, signed ‘Gindrat & Go., per A. "Warner,’ on proof that it was in the handwriting of said Warner, who was clerk of the ‘Winter Iron Works,’ and only had authority to correspond for the corporation on such matters as shipments of machinery and accounts due, but had no authority to make or alter contracts. There was no other evidence of authority in Warner to write said letter; and there was evidence that he was, at the time of testifying, living in Montgomery, and out of the employment of said iron-works. The plaintiffs objected to the introduction of said letter altogether, and particularly to” the sentence which is in italics; but the court overruled each of said objections, and allowed tbe whole of sa'd letter to be read to the jury ; and to these rulings of tbe court the plaintiffs excepted.’ Said letter was in these words:</p> <p>“Montgomery, Eeb. 14, 1851.</p> <p>“Martin R. Burt, Esq.—</p> <p>Bear Sir: We shipped to-day, pr. st. .Emperor, 2 boilers, 30 in. diam., 30 feet long. Mr. Doyle, has not yet arrived ; will dispatch him to your mill as soon as he comes. Have the kindness to send tbe boiler left at Watts’ landing for you, to us, by the Emperor, next trip. Respectfully, Gtndrat & Co.,</p> <p>per A. Warner.”</p> <p>“The defendant asked a witness, introduced by plaintiffs, if he and one Ililton bad not been sworn in two other cases, in the circuit court of Montgomery, in which plaintiffs and third persons were parties, having no connection with the matters of (his suit; and the witness answered, that it was so. Tbe plaintiffs objected to this question and answer, and excepted to the overruling of their objection.</p> <p>“The defendant asked said John Burt, bow the new wheel and piston-rod, which had been made at said ironworks, and sent down to defendant’s mill in charge of a man sent by said iron-works, had been put up ; and tbe witness answered, ‘In tbe same way that the other machinery had been put up.’ The plaintiffs objected to this answer: but tbe court overruled their objection, and allowed said answer to go to Ihe jury; and plaintiffs excepted.</p> <p>“Tbe defendant was allowed by the court, against the plaintiffs’ objection, to prove that one Smith came to the mill, took out the saw, to put it in order, and put it back again, and that it did not then work so well as before,— this being after said machinery was repaired; and plaintiffs excepted.</p> <p>“There was evidence tending to show, that one Lamb was sent clown by Gindrat & Co. to examine the manner in which said machinery was put tip ; and that said Lamb, while there, said that it was well put up. Neither one of the plaintiffs, nor any member of the firm of Gindrat & Co., was present when these declarations were made. The plaintiffs objected to the introduction of said Lamb’s declarations as evidence, and excepted to their admission.”</p> <p>The rulings of the court above stated, and in the order stated, are now assigned as error.</p>

<p>Appeal from the Chancery Court of Butler.</p> <p>Heard before the Hon. "Wade Keyes.</p> <p>The hill in this case was filed hy Mrs. Sarah Oliver, suing by her next friend, against her husband, Charles Oliver, Robert B. Smyth, and Thomas Erost. Its material allegations were these: That complainant intermarried with said Charles Oliver, in Butler county, Alabama, on the 9th of January, 1851; that she was possessed, at tlie time of her marriage, of an undivided interest in several slaves and other personal property, which, belonged to her in her own right; that on the 6th February, 18-51, she and her husband sold her interest in said slaves and other property, to Thomas Frost, for ¡$812 50, and took his two notes for the purchase-money, one for $750, and the other for $62 50, payable on the 1st January next thereafter; that both these notes were, by the advice and direction of her husband, made payable to “Charles and Sarah Oliver or bearer,” were delivered to complainant, and by her deposited in the hands of her husband for safe-keeping; that her husband, on the same day, or very soon afterwards, transferred and delivered said notes, without her knowledge or assent, and without consideration, to said Robert B. Smyth, who was cognizant of the fact that they constituted a part of her separate estate, and that her husband had no right to dispose of them, and who has since instituted an action at law on them, in the name of Charles Oliver for his use; and that her husband immediately abandoned her, and left the State. The prayer of the bill was, that the complainant’s husband might be removed from the trusteeship of her separate estate ; that the action at law might be enjoined, and said Frost compelled by decree to pay to complainant the amount due on the notes; and the general prayer, for other and further relief, was added.</p> <p>The defendant Smyth answered the bill; alleging that he had no definite knowledge, until after his purchase of thenotes, of the consideration on which they were founded; that they were purchased for him by an agent, Williamson Harrison, who discounted them by taking 12-J per cent, off the face of them, and paid full value for them ; insisting that, on the face of the notes, said Oliver had a right to transfer or sell them, and. that he is entitled to protection as a bona-fide purchaser for valuable consideration ; and demurring to the bill for want of equity.</p> <p>Motions were made to suppress the depositions of Thomas Frost and Williamson Harrison, for causes which are stated in the opinion of the court; but the motions do not appear to have been acted on by the chancellor, wbo, on. final bearing, rendered a decree for tbe complainant, which is now assigned as error.</p>

<p>Appeal from the Circuit Court of Butler.</p> <p>Tried before the Hon. Johk Gill Shorter.</p> <p>The complaint in this case was in these words.:</p> <p>“The plaintiff, Caroline Smith, an infant under the age of twenty-one years, who sues by her next friend, claims of the defendant $10,000, as damages for falsely and maliciously charging said plaintiff, who is an unmarried female, with a want of chastity, by speaking of and concerning her, in the presence of divers persons, in a conversation where the subject of the plaintiff’s having, previous to that time, been pregnant with child, and having given birth to it by producing an abortion, was spoken of and referred to, these false, malicious, and scandalous words, in substance, £I suppose Caroline Smith has lost a young one’; also, these words, ‘Caroline Smith has lost a child’; also, these words, ‘I suppose Caroline (meaning-plaintiff) was with child, and took something to make her lose it’; also, these words, ‘There was something the matter with Caroline Smith that Doctor Donald could not account for, until he sent for Mrs. Hawkins, and she examined her,’ (meaning thereby that plaintiff had been pregnant, and had miscarried, or had given birth to a child,) viz., on the 1st May, 1856.”</p> <p>To this complaint a demurrer was interposed, on the following grounds: “1st, that there is no sufficient cause of action set forth in said complaint; 2d, that said complaint shows on its face that the words alleged to have been spoken are true; 3d, that the words charged to have been spoken by defendant are not, of themselves, actionable, and there are no averments in the complaint making them actionable; 4th, that said complaint shows that plaintiff had been pregnant, and had given birth to a child by producing abortion, and that the words charged to have been spoken by defendant were spoken of and concerning such pregnancy and abortion.”</p> <p>The court,sustained this demurrer; and the plaintiff, declining to amend, excepted, and took a nonsuit.</p> <p>— 1. The complaint conforms to the requirements of the Code, and, consequently, is sufficient, even though it may not contain all the averments necessary to show a cause of action. — Pickens v. Oliver, 29 Ala. 537. On the authority of this case, it must be understood as charging the words to have been spoken under such circumstances as would constitute slander; and if the proof did not disclose such circumstances, no recovery could bo had. The form prescribed by the Code is general, and intended to apply to all cases of verbal slander, whether the words are or not, per se, actionable. The averment of facts of inducement is not, in terms, dispensed with; but such is the necessary effect of the several statutory provisions. The colloquium and innuendo are dispensed with; and why should it be necessary to aver facts of inducement, when it is not necessary to show any connection between those facts and the words spoken ? In an action for words charging the crime of larceny, but not actionable per se, would it be necessary to aver that property had been stolen, when the statute makes it unnecessary to aver that the words were spoken in reference to such larceny ? Is it reasonable to suppose that the framers of the Code intended to require an averment of extrinsic facts, but dispensed with the link connecting them with the words spoken ? The prescribed form professes to state all the necessary averments of the complaint, and to be general in its application. To confine it to any particular class of cases, would produce a strange jumble of conflicting systems of pleading: we would then have common-law suits for slander, and Code slander suits. If section 2229 is to be confined in its application to cases in which the words charged are, perse, actionable, it becomes entirely useless and purposeless; for, in such cases, at common law, there was no necessity for a colloquium or innuendo.</p> <p>2. The complaint sufficiently shows, when fairly construed, that the plaintiff was unmarried at the time of the charge. It shows that she is an infant, unmarried, aud bearing the same name by which she was known when the charge was made. The term unmarried, in its ordinary acceptation, means a person who has never been married; and it is to be presumed that! an unmarried female, under the age of twenty-one, never was married.</p> <p>3. The words charging that plaintiff produced an abortion on herself, are clearly slanderous. They charge an offense involving moral turpitude, and indictable. The procuring of a miscarriage, by the pregnant woman herself, or by a third person, was a misdemeanor at common law. The distinction found in the books, as to the woman being “quick with child,” or not, grew out of the English statutes on the subject. — 4 Bla. Com. 198; 1 Hale’s P. C., ch. 31, § 16 ; Tomlin’s Law Dictionary, 108; Boscoe’s Cr. Ev. 240; 3 Chitty’s Or. Law, 798; 1 Bussell on Crimes, 553. Aside from the common law, the offense charged comes within the provisions of section 3230 of the Code, which is couched in terms similar to the English statutes, under which women who produced abortion on themselves were held included.— 7 Bacon’s Abr. (by Bouvier,) 189.</p> <p>4. The complaint does not contain an admission of the truth of the charge, but only that the charge was the subject-matter of the conversation; and the same sentence avers distinctly that the charge was false.</p> <p>— 1. An action on the case, for the false speaking of words imputing to a woman a want of chastity, is purely statutory; the common law gave none, without proof of special damage. The statute dispenses with the averment of special damage, and gives an action, only where the words themselves impute a want of chastity. If the words themselves, though intended or understood to convey that imputation, do not contain such charge, the additional facts necessary to complete the charge must be averred.</p> <p>2. A charge of pregnancy is not an imputation on the chastity of a woman, unless she was at the time unmarried. Construing the complaint in this case most strongly against the pleader, it must be presumed that the plaintiff was married at the time of the alleged pregnancy.</p> <p>8. The complaint itself admits the truth of the charge.</p>

<p>[action against owneks eor goods fcekished steamboat.]</p> <p>1. What must be shown to authorize admission of evidence prima facie illegal and irrelevant. — When a party offers evidence which is, prima facie, illegal as well as irrelevant, it is not sufficient for him to state to the court, “that he could probably, by other evidence, so connect the defendant with it as to make it competent evidence.”</p> <p>2. When admission of illegal evidence is reversible error. — The admission of illegal evidence, against a party’s objection, is an error for which the judgment will be reversed at bis instance, unless the record shows that the jury were explicitly directed to disregard such evidence.</p> <p>3. Interest on open account for goods sold and delivered.- — On a contract to pay for goods sold and delivered, interest attaches from the delivery of the goods, unless the contract fixes some other time of payment.</p>

Tried before tbe Hon. Thomas A. Walkeb,. This action was brought against Albert Stein, tbe lessee of tbe city water-works of Mobile, to recover $10 damages for unlawfully closing and stopping tbe plaintiff’s hydrant; was commenced in a justice’s court, and removed by tbe defendant to tbe circuit court. Tbe judgmert of tbe circuit court is now assigned as error.

Is the matter of a paper propounded for probate as the last will and testament of Nancy Taylor, deceased, which was in these words: “State of Alabama, \ Know all men by these presents, Autauga county. / that I, Nancy Taylor, of the State and county aforesaid, do make and publish this my last will and testament.

<p>[ACTION By MUNICIPAL CORPORATION ON PENAL BOND.]</p> <p>1. General powers of corporations. — A corporation, public or private, can only exercise such powers as are expressly conferred by its charter, and such as are necessary and proper to carry into effect its granted powers ; and when a corporation is created for a specific purpose, it has 'an implied power to use the necessary and usual means to effect that purpose.</p> <p>2. Power of corporate authorities of Montgomery to aid in construction of'plank-roads. The I4th section of the charter of the city of Montgomery, conferring on the corporate authorities power and authority to enact such laws and regulations as may be deemed necessary, ‘‘in relation to the streets and highways, public buildings and powder-magazine, and every other matter and thing which they may deem necessary for the good order and welfare of said city,” does not authorize them to construct or aid in constructing a plank-road or bridge beyond the corporate limits of said city ; nor is the exercise of such power a necessary means of effecting- the purpose for which said corporation was created, or necessary to carry into effect any of the powers expressly granted ; consequently, the loan of the city bonds to the Montgomery and Wetumpka Plank-Road Company, so far as relates to the building of a bridge across the Tallapoosa river and the construction of said plank-road beyond the limits of the city, was unauthorized and void.</p> <p>3. Sufficiency of complaint. — Where the complaint alleges a loan of city bonds to a private corporation, it is not necessary to aver that the corporation received the proceeds of said bonds : if the bonds were in such condition that they could not be made available, this is matter of defense, to be presented by a proper plea.</p> <p>4. Validity of bond taken by municipal corporation without authority under charter. A penal bond, taken by a municipal corporation from an incorporated plank-road company, and conditioned for the faithful application by said plank-road company of certain city bonds, loaned by said municipal corporation, without authority under its charter, to aid in the construction of a bridge and plank-road, and for the completion of said bridge and road by a specified day, — is invalid, and cannot be enforced by suit; nor is its validity affected by a subsequent sale or transfer of the city bonds by the plank-road company.</p> <p>5. Judicial notice of rivers and towns. — The courts of this State judicially know that no part of the Tallapoosa river lies within the corporate limits of the city of Montgomery.</p> <p>6. Judicial notice of charter of corporation. — Judicial notice cannot be taken of the charter of an incorporated plank-road company, which is a private corporation.</p> <p>1. Bond partly void, and partly valid. — A. penal bond, taken by a municipal corporation, and conditioned for the faithful performance by the principal obligor of certain public works, some of which said corporation had no authority under its charter to construct or aid in constructing, is valid as to that portion of the works which the corporation had authority to con struct, though invalid as to the residue.</p> <p>8. Estoppel against party contracting with coi-poration from alleging invalidity of contract. — A party who contracts with a municipal corporation for the perform anee of works which the corporation has no authority to construct, and who has received the benefit of his contract, is Dot estopped, when sued by the corporation, from setting up its want of authority to make the contract.</p>

Tried before the Hon. JohN Gill SHORTER. This action was brought by the administrators of Mrs. Elizabeth Lambert, deceased, against the executor of Mrs. Bethany Parker, deceased; and was commenced in March, 1854. It was founded on several promissory notes, fourteen or fifteen in number, for less than $50 each, amounting in the aggregate to about $600, all dated 11th May, 1852, executed by Mrs. Parker, and payable to Mrs. Lambert.

Tried before the Hon. C. W. B,apier. This action was brought by the appellee, a corporation chartered by the legislature of this State, against James H. Daughdrill, “to recover damages for wrongfully taking three mahogany writing-desks, the property of plaintiff,” which the defendant had seized, as tax-collector of Mobile county, to satisfy the county taxes for the year 1853, which the plaintiff refused to pay.

'' IN the matter of the estate of Edward Henry, deceased, on final settlement of the accounts of Thomas P. Renfro, sheriff, and, ex officio, administrator de bonis non, with the will annexed, of said decedent.

Tried before the Hon. Andrew B. Moore. This action was brought by Matthew D. Thomason agaiust Aaron Odum, to recover a negro woman named Watsey, together with her three children; and was commenced in April, 1849. It was before this court at its June term, 1853, and is reported in 23 Ala. 480.

Heard before tlie Hon. A. J. Walker. This bill was filed by the Branch Bank at Decatur, seeking to enforce an implied trust, against Daniel M. Martin, in the proceeds of a certain note executed by A. C. Austin, payable to William G-. Martin, and by him endorsed to said Daniel M. Martin, who was the brother of said William Martin.

Heard before the Hon. Wade Keyes. The original bill in this case was filed by James G. Ingraham, the appellant, against Pirineas 0. Foster, Roger A. Hearne, and James A. Gage; alleging that, in.

<p>[assumpsit on bill op exchange, by payee against acceptor.]</p> <p>1. Admissibility of parol evidence to vary written acceptance of bill. — Io an action by tbe payees against the acceptor of a bill of exchange, the defendant cannot bo allowed to prove that he accepted the bill under a verbal agreement with the payees, to the effect that, if the bill was not paid at maturity, the payees “should not call upon aim until they had prosecuted the drawers to judgment or insolvency, and used all proper and lawful means to collect the same.”</p>

<p>Appeal from the Circuit Court of Dallas.</p> <p>Tried before the Hon. RobeRT Dougherty.</p> <p>This action was brought by Mary "Wittick, then a, feme sole, against Henry Traun, to recover a negro woman, named Betsey, and ber seven children, Dick, Jim, Lucy, Sarah, John, Ann, and Edward. The plaintiff having intermarried, pending the suit, with one Louis Keiffer, her husband was made a party with her. At the fall term, 1852, a judgment on verdict was rendered for the plaintiff, which was amended nunc pro tune at the next ensuing term; and this amended judgment was reversed by this court, at its June term, 1855, and the cause remanded, as shown by the report of the case in 27 Ala. 570. "When the case was called for trial, as appears from the bill of exceptions in the present record, “the defendant showed to the court that, at a former term, a judgment on verdict was rendered against him, for all the slaves in controversy except the girl Ann; that an execution in the usual form was issued on this judgment, and placed in the hands of the sheriff of the county; that satisfaction of said execution being demanded by the sheriff, defendant delivered up to him, in satisfaction thereof, four of said slaves, and paid in cash the alternate value of the others as assessed by the jury; that the execution was thereupon returned by the sheriff ‘satisfied,’ and the negroes and money received under it were handed over by him to the plaintiff; that said judgment was afterwards reversed by the supreme court, on writ of error, and the cause remanded; that plaintiff' still retained the slaves and money collected under said judgment, and refused to return the slaves or to refund the money; that defendant afterwards brought, his action of detinue against plaintiff, in the circuit court of Lowndes, for two of said slaves, Betsey and Edward, and now had them in his possession under a statutory bond given in said suit; that plaintiff had recovered a judgment in that action, and defendant had appealed to the supreme court. On this state of facts, the defendant insisted that, before going to trial, the plaintiff should be required to place him iii statu quo, by refunding the money and restoring the slaves, or, at least, by delivering the slaves to the sheriff, and paying the money into court, to be subject to further proceedings in the premises ; and moved the court accordingly. But the court overruled the motion, and required the defendant to go to trial; and the defendant excepted.”</p> <p>The defendant pleaded, “in short by consent,” 1st, non detinet; and, 2dly, “that the slaves sued for came to defendant’s possession, after the death of his intestate, as a part of his estate, and that he held the same as such, — the said slaves being in the possession and the property of said intestate in his lifetime.”</p> <p>All the evidence is set out in the bill of exceptions, but a brief summary of it is sufficient to explain the questions which are here presented for revision. The plaintiff claimed the slaves in controversy, under a parol gift of Betsey, the mother of the others, from Frederick Witticlc, who was the uncle of her first husband; while the defendant relied on the title of said Frederick Wittiek, of whose estate he was the administrator. The plaintiff adduced evidence, tending to show that she and her first husband, who were natives of Germany, came to the United States on the invitation of Frederick Wittiek, in 1836 ; that her • husband died on his arrival in Mobile; that she soon became dissatisfied with the couutry, and desired to return to Germany; that said Wittiek, to induce her to remain here and live with him, gave her the girl Betsey; that she continued to live with him, and attended to his domestic affairs as his housekeeper, from that time until his death, which occurred in 1850; that Wittiek always recognized the girl Betsey as belonging to her, admitted her title, asked her permission about the employment of the girl, &c. On the part of the defendant it was proved, that the slaves remained in the possession of said Wittiek, and upon his plantation, up to the time of his death ; that several persons, who •were employed about the place in different capacities, had never heard of the plaintiff’s claim of title to them; that after the death of said Wittiek, the slaves passed into the possession of defendant as his administrator’, and were appraised as part of his estate; that plaintiff' was present at the appraisement, and made no objection to the slaves being included as a part of the assets, though she claimed several articles of household furniture. In rebuttal of the defendant’s evidence on this last point, the plaintiff proved, by one of the appraisers, “that after the appraisement, but before the appraisers had dispersed, and before they had signed the appraisement,” she called the witness into a private room, and there stated to him that she claimed Betsey and her children ; and the witness further stated, that he never communicated this fact to the other appraisers or to the defendant. The defendant objected to this evidence, and moved the court to exclude it from the jury; and also excepted to the overruling of his objection.</p> <p>The plaintiff offered to prove, by one Harris, “that he, as sheriff of Balias county, had received an execution from this court, in favor of plaintiff, and against defendant, for seven of the slaves in controversy, or their alternate value as assessed; and that defendant had delivered up to him, on his demand as sheriff under said execution, a portion of the slaves therein mentioned, and liad paid the alternate value of the others, as assessed.” The defendant objected to the admission of this evidence, and reserved an exception to the overruling of his objection.</p> <p>The defendant requested the court to give the following charges to the jury :</p> <p>“1. If the jury believe from the evidence that the slaves in controversy were on the plantation and in the possession of Frederick Wittick at his death, and went into the possession of his administrator as part of his estate; and that the plaintiff'was present while the estate of said Wit-tick was appraised, and understood and witnessed the appraisement, and saw the slaves in controversy pointed out by the administrator to the appraisers as a part of the estate; and that the appraisers appraised and inventoried them as part of said estate; and that the slaves, as appraised and inventoried, were returned to the probate court, and were treated by the court and administrator as belonging to said estate; and that plaintiff made no objection to the proceedings, and gave no notice to the appraisers or the administrator of any claim to the slaves, — she is now estopped from asserting any claim to said slaves.</p> <p>“2. If the jury believe the evidence in this case, the plaintiff is estopped from setting up a claim to the slaves in controversy against the administrator of Frederick Wittick.</p> <p>“3. If Frederick "Wittick held continuous possession and control of the slaves in controversy, as bis own property, for six years next preceding and down to bis death, the plaintiff’s claim is barred by the statute of limitations, and she cannot recover; and this applies to each one of the slaves separately.</p> <p>“4. If the slaves in controversy were in the possession of Frederick Wittick at the time of bis death, and then went into the possession of his administrator as a part of his estate, — the said Wittick, up to the time of his death, continuously treating and controlling them as his own — if, under these circumstances, the possession of said Wittick and his administrator continued for six continuous years prior to the commencement of this suit, the plaintiff cannot recover; and this applies to each one of the slaves separately.</p> <p>“5. It is indespensable to the perfection of a parol gift, that the delivery of the slave by the donor should be proved ; and taking all the proof in this case to be true, there is no sufficient proof of the delivery of the woman Betsey and her children.</p> <p>“6. The delivery of the slaves Betsey and her children cannot be inferred from the facts proved in this case.</p> <p>“7. The proof in this case is not sufficient to establish a valid gift, from Frederick Wittick to the plaintiff* of the woman Betsey and her children.”</p> <p>The court refused to give any of these charges, and to the refusal of each one the defendant excepted; and he now assigns as error all the rulings of the court to which exceptions were reserved.</p> <p>— 1. The court below had the power, and should have exercised it, to compel the plaintiff’ to restore what had been coerced from the defendant under the reversed judgment, before proceeding to another trial, which might give the plaintiff’a double recovery. — Hall v. Ilrabrowski, 9 Ala. 278 ; Bradford v. Bush, 10 Ala. 274; Tidd’s Practice, 470.</p> <p>2. The evidence of Harris was incompetent, and ought not to have been admitted. The delivery of the slaves by the defendant, and his payment of money to the sheriff, being made under legal process then in the officer’s hands, could notbe considered voluntary; and not being vol untary, no implied admission could properly be inferred from those acts. — 1 Phil. Ev. 349 ; Gamble v. Gamble, 11 Ala. 1010; Byrd v. Odom, 9 Ala. 756.</p> <p>3. The plaintiff’s declarations to Hardy, one of the appraisers, were not admissible as a part of the res gestae. She was not in the possession of the slaves, and could not prove title in herself by her own declarations. — 1 Greenl. Ev. § 329; 1 Phil. Ev. 372; Abney v. Kingsland, 10 Ala. 355. These declarations were made after the appraisement, and were not a part of the same transaction. — People v. Green, 1 Parker’s Or. Hep. 11; Stewart v. Sherman, 5 Conn. 244; Ogden v. Peters, 15 Barbour, 562; Boberts v. Trawick, 22 Ala. 493.</p> <p>4. The plaintiff’s failure to claim the slaves at the time of the appraisement, coupled with the fact that the administrator returned them in his inventory, operates an estop-pel against the plaintiff', which is not avoided by her subsequent private claim to one of the appraisers, not communicated to the defendant. — McCravey v. Bemson, 19 Ala. 436; Pool v. Harrison, 18 Ala. 514; Steele v. Adams, 21 Ala. 534; Garrett v. Lyle, 27 Ala. 586.</p> <p>5. The third and fourth charges asked, relative to the defense of the statute of limitations, asserted correct legal propositions, and were authorized by the evidence.</p> <p>6. The facts proved do not, in legal contemplation, establish a parol gift. — Hunley v. Hunley, 15 Ala. 104; Biyant v. Ingraham, 16 Ala. 116; Jones v. Dyer and Wife, 16 Ala. 221; Seawell v. Gliddon, 1 Ala. 52; Blakey v. Blakey, 9 Ala. 391; Sims v. Sims, 2 Ala. 117 ; Phillips v. McGrow, 13 Ala. 255.</p> <p>— 1. After the issues had been made up, and the parties had announced themselves ready, the court had no power to refuse to proceed with the trial. Nor could the court know, until a trial ivas had, that the slaves and money did not belong to the plaintiff. If the plaintiff had failed, the defendant had a perfect remedy. The plaintiff’s right having been established, the defendant has not been injured.</p> <p>2. The delivery of the slaves to the sheriff, and the payment of money to him, under the former recovery, must be regarded as voluntary acts, because the defendant might have superseded the judgment; ’and being voluntary acts, on which the plaintiff afterwards acted by spending the money, the defendant is thereby estopped. Steele v. Adams, 21 Ala. 534 ; Lay v. Lawson, 24 Ala. 184; Gwynn v. Hamilton, 29 Ala. 233.</p> <p>3. The testimony of the witness Hardy, relative to plaintiff’s claim- of the slaves at the time of the appraisement, was in rebuttal of defendant’s evidence on the same point, from which lie sought to establish an implied admission.</p> <p>4. The facts proved do not make out a ease of estoppel against the plaintiff. The public assertion of her claim, at the time of the appraisement, would have liad no other effect than the private assertion of it had. Her failure to assert her claim publicly gave her no advantage, and did no injury to the defendant Moreover, she was an ignorant foreigner; and a mistake of her legal rights, caused by her ignorance, cannot create an estoppel. — Inge v. Murphy, 10 Ala. 885; Gamble v. Gamble, 11 Ala. 966 ; Pounds v. Richards, 21 Ala. 424; Hunley v. Hanley, 15 Ala. 91.</p> <p>5. Possession and control by defendant’s intestate, “as his own property,” did not create an adverse holding against the plaintiff. — Pool v. Harrison, 16 Ala. 16T; Kennedy v. Innerarity, 16 Ala. 239.</p> <p>6. The 5th, 6th, and 7th charges asked by the defendant, were invasions of the province of the jury, and, for that reason, were properly refused. — Bryan v. Ware, 20 Ala. 687; Freeman v. Scurlock, 27 Ala. 407; Stanley v. Nelson, 28 Ala. 514; Foust v. Yielding, 28 Ala. 658; Ivey v. Owens, 28 Ala. 641; Nelson v. Iverson, 19 Ala. 95 ; King v. Pope, 28 Ala. 602; Lawler v. Norris, 28 Ala. 675.</p>

Tried before the Hon. Andrew B. Mooee. The slave in controversy in this case was levied on by the sheriff, as the property of Robert W. Stone, under an execution in favor of Hurt & Brother.

Tried before the Hon. C. W. Rapier. This actiou was • brought by Samuel IT. Hartshorn against G-eorge W. Williams, to recover damages for the conversion of a stock of goods, on which the defendant, as sheriff had levied an attachment. The plaintiff claimed the goods under a conveyance from James M. Hamilton, while the attachment levied on them by the defendant was against the firm of J. M. Hamilton & Co., of which said Hamilton was a partner.

<p>Notion to recover statutory penalty por arresting runaway slave.]</p> <p>1. Admissibility of slave’s declarations. — The declarations and admissions of a slave, made at the time of nis arrest as a runaway, are not competent evidence for the party making the arrest, in an action against the owner to recover the statutory penalty.</p>

<p>Appeal from the Circuit Court of Dallas.</p> <p>Tried before the Hon. DobeRT DougheRTY.</p> <p>This action was brought by Eiehard K. Harrison, against Simeon Dobbins, to recover $180 “due from defendant by account on the 1st January, 1850, for two mules and a horse; also, the further sum of $500 for work and labor; also, the like sum for cash advanced by plaintiff, for defendant, and at his request.” The defendant pleaded non assumpsit, payment, set-off, and former recovery. On the trial, as appears from the bill of exceptions, í£ the plaintiff proved that, during the year 1850, he sold to defendant two mules and one horse, at the price of $60 each; but the witness said that he had no knowledge or information -whether or not the defendant paid for them. The defendant then offered in evidence the record of a judgment from the circuit court of Lowndes county”, which is appended as an exhibit to the bill of exceptions, “ showing that, in 1851, plaintiff commenced an action against him, before a justice of the peace of said county, to recover the sum of $10 loaned money; that the ease was taken by appeal to the circuit court, and that the defendant, under the plea of set-off', there recovered a judgment of $12 68. The defendant offered in evidence, also, the record of a judgment from the circuit court of Autauga county, in his favor, and against the plaintiff in this action, for $201 44”, which is also made an exhibit to the bill of exceptions, showing that the action, which was assumpsit, was commenced in April, 1851, and was founded on several promissory notes- and an open account; and that tlie judgment was rendered, on the verdict of a jury, at the spring term, 1853; but on what issue the cause was tried, or what pleas were interposed, does not appear.</p> <p>“ This was all the testimony adduced on the trial, and thereupon the defendant requested the court to instruct the jury,—</p> <p>“ 1. That if they believed from the evidence that the claim sited on in this case was due before the institution of the suit before the justice of the peace in Lowndes county, then the plaintiff would not be entitled to recover in this action.</p> <p>“ 2. That the jury may look to the suit brought by plaintiff before the justice of the peace in Lowndes county, as evidence to show that the claim here sued on had been settled, should they believe that the plaintiff’s claim in the present action was due before the suit in Lowndes county was instituted.</p> <p>“ 3; That, although they might believe all the evidence offered by the plaintiff, the plaintiff was not entitled to recover.</p> <p>“ 4. That if they believed all the evidence in the case, plaintiff could not recover.”</p> <p>The rulings of the court in refusing to give these charges, to which exceptions were reserved by the defendant, are the only matters now assigned as error.</p>

<p>[PINAt. SETTLEMENT AND DISTRIBUTION OE DECEDENT’S ESTATE.]</p> <p>1. What constitutes advancement or ademption of legacy. — Where the husband's slaves, being under mortgage, are redeemed by his father-in-law, at his request, upon the understanding and agreement that they should be conveyed by deed to the wife, and are afterwards so conveyed to her; the redemption money being either furnished by the husband, or by his father-in-law on his credit and promise to repay, — this is neither an advancement to the wife by her father, nor an ademption or satisfaction, in whole or in part, of a legacy to her under a will previously executed by him.</p> <p>2. Presumption in favor of judgment. — To authorize the reversal of a judgment on error, the record must, affirmatively show that the action or ruling of the primary court was wrong : it is not enough that the appellate court cannot see that such action or ruling was right.</p>

Heard before the Hon. John EosteR. The bill in this case was filed by Franklin C. Owen, the appellee, alleging that, at the June term, 1854, of the probate court of Lawrence, he filed his accounts and vouchers for a final settlement of his guardianship of Martha A. Couch, (who had then recently intermarried with Jeremiah Allman,) showing a balance of $966 13 in favor of his said ward; that the probate court thereupon appointed the 2d Monday in August, 1854, for the auditing,…

Heard before the Hon. Wade Heves. This bill was filed by Samuel Quarles, the appellant, against James B. Grigsby, Jr., Edwin A. Glover, and John N. Ransom, as administrator of James B. Grigsby, deceased; and sought to subject to the satisfaction of a judgment, obtained by complainant at the spring term, 1843, of the. circuit court of Perry county, against said Ransom, as administrator of Grigsby, certain slaves which were alleged to have been fraudulently conveyed by said…

Heard befoi-e the Hou. James B. Claes. This bill was filed by Alexander H. Ledbetter, against N., W. Cocke, Jethro Walker, and Cleveland Croft; charging the perpetration of a fraud by said Walker and Croft, in combining together to procure from said Cocke the legal title to a tract of land, which complainant had previously purchased from one Kimball, who was Cocke’s agent; praying the cancellation of Croft’s deed from Cocke, and the vesting of the legal title in the…

Heard before the Hon. Johh Foster. This bill was filed by Mrs. Sarah Jones, one of the distributees of the estate of Joseph K. Blalock, deceased, against the administrator and other distributees of said estate.

Tried before the Hon. Eobekt Dougheety. This action was brought by John’Boothe, as trustee of Mrs. Eliza Bettner, against Mrs. Mary K. G-ardner, to recover certain slaves, together with damages for their detention.

IN the matter of the estate of Edward Harris, deceased, on the application of Mrs. Elizabeth D. Dillard, one of the distributees and legatees, for the removal of the executor from his trust, on account of his having removed from the State more than ten years before the petition was filed, without making a settlement of his accounts, and his continued non-residence.

Heard before the Hon. Wade Keyes. The bill in this case was filed by the appellees, against Mrs. Mary Keiffer and Louis Keiffer, her husband; and sought to subject Mrs. Keiffer’s separate estate to the payment of a promissory note, executed by her and her husband jointly, during coverture, dated January 18, 1855.

Heard before the Hon. Wade Keyes. The bill in this case was filed by Henry T. Wilkinson, a judgment creditor of Asa Alexander, seeking to subject to the satisfaction of his judgment certain real estate conveyed by said Alexander to Hosea Holley. The complainant’s judgment against Alexander was rendered at the fall term, 1853, of the circuit court of Coffee county.

<p>[DETINUE EOE SLATES.]</p> <p>1. Admissibility of declarations in rebuttal of implied admission. — Plaintiff having proved that the slaves in controversy were appraised as a part of his intestate’s estate, in defendant’s presence, and that defendant then asserted no title to them, it is competent for defendant to rebut this evidence, by proof of her private assertions of title to one of the appraisers, before the completion of the appraisement.</p> <p>2. Weight of verbal admissions as evidence. — Although a verbal admission, deliberately made, may afford proof of the most satisfactory character; yet it is erroneous to instruct the jury, that it is “ the best kind of evidence.”</p> <p>S. Judgment for defendant in detinue. — In detinue, if the property has gone into the possession of the plaintiff on his execution of the statutory bond, and the verdict of the jury is in favor of the defendant, the judgment should be for the property itself or its alternate value ; and a judgment for the specific property alone will be reversed on error at the instance of the plaintiff.</p>

<p>Appeal from the Probate Court of Russell.</p> <p>In the matter of the final settlement and distribution of the estate of Madison T. Key, deceased. The errors assigned question the correctness of the rulings of the probate court in refusing to allow to the decedent’s widow, now the wife of George W. Turner, a distributive share of said estate, on the ground that she had a separate estate.</p>

At the instance of the appellant, Rachel Wittick, who is an emancipated negro, a citation was issued to Henry Traun, who had been previously appointed by said probate court administrator of Frederick Wittick, deceased, requiring him to produce the will of said decedent, which was alleged to be in his possession.

<p>Appeal from the Circuit Court of Autauga.</p> <p>Tried before tbe lion. Robert Dougherty.</p> <p>This suit was a trial of tbe right of property in a slave, between A. 3L McWilliams, plaintiff in execution against W. L. Durden, and Mrs. Gilly Durden, wbo was tbe mother of said defendant in execution, as claimant. Tbe plaintiff’s judgments were rendered on tbe 14th April, 1854, and were founded on several promissory notes executed by said W. L. Durden, dated December 27, 1850, Jan. 21, 1852, Feb. 17, 1858, and Feb. 27, 1854. It-appeared that tbe claimant, about Christmas, 1849, divided out her slaves among her children; but her son W. L. Durden being wild and dissipated, “she would not part with the title to the slaves set apart to him, among whopr was the slave in controversy, but said she would let him have their use and labor so long as she saw fit,'and reserve to herself the privilege of repossessing herself of them when she pleased.” At the time of the levy, August 2, 1854, the slave was in the claimant’s possession. The court charged the jury, “that if the defendant in execution had been for three years in uninterrupted possession of the slave, without demand made and pursued by due course of law by the claimant, and without there having been any written agreement, testifying as to the character of his possession, duly recorded; and plaintiff had acquired a lien on the slave during that time, — then the slave would be subject to plaintiff’s lien.” This charge, to which the «claimant excepted, is the principal matter now assigned as error. v.</p>

Heard before the Hon. JohN Fostee. This bill was filed by Franklin C. Owen, against the heirs-at-law and distributees of John Stewart, deceased, for a settlement of his administration on the estate of said Stewart, which was pending in the probate court of Lawrence.

Heard before the Hon. A. J. Walkeb. This bill was filed by George ~W. Gunn, against Elisba Betts. Held: that the bill presented no case for a rescission or reformation of the contract, but might be retained to establish an equitable set-off in favor of the plaintiff, on account of the insolvency of the defendant; and, on final hearing, a reference of the matters of account was oi’dered.

Tried before the Hon. Alex. McKiNSTry. This action was brought by the appellees, against Augustus Brooks, a regularly licensed auctioneer in and for the city and county of Mobile, to recover the school tax on the amount of auction sales made by the defendant from the 15th February, 1856, to the commencement of the action.

<p>Appeal from the Circuit Court of Autauga.</p> <p>Tried before the Hon. E. "W. Pettus.</p> <p>This action was brought by the executor of John P. DeJarnette, deceased, against Murdock McQueen. The complaint contained the common counts in assumpsit under the Code. The defendant pleaded, in short by consent, non assumpsit, payment, set-off, and the statutes of limitation of three aud six years. The facts disclosed on the trial, as the same are stated in the bill of exceptions, were, in substance, these: A partnership had existed between the plaintiff’s testator, the defendant, and one Sutherlin. After the dissolution of the firm, the several partners executed to one John McBride two promissory notes, for the amount of a partnership debt; signing their respective individual names. The plaintiff, as executor of John P. DeJarnette, paid off the balance due on these notes, and brought this action to recover contribution. Sutherlin had removed to Louisiana before this payment was made. A witness for the plaintiff testified, that he, as an attorney-at-law, “ advised the plaintiff and defendant that a settlement of the business of the firm could only be forced by a long and difficult chancery suit, and advised them to quit even; to which both assented.” On this evidence, the court charged the jury, in effect, that the plaintiff could not recover. The plaintiff reserved an exception to this charge, and he now assigns it as error.</p> <p>cited Lyon v. Malone, 4 Porter, 501; Neale v. Turton, 4 Bing. 149; Nevins v. Townsend, 6 Conn. 5; G-ibson v. Moore, 6 N. IT. 547; Sawyer v. Proctor, 2 Conn. 480; Van Ness v. Eorrest, 8 Cranch, 80; Collyer on Partnership, §§ 272, 274, 269, 281.</p>

<p>Appeal from the Circuit Court of Monroe.</p> <p>Tried before the Hon. Thomas A. "WALKER.</p> <p>This action was brought by Jesse T. Odom, against John Lyon and Garrett Longmire, and was founded on a penal bond, which was conditioned that Lyon should indemnify Odom “against all damages and costs ” that might be incurred by him, as the surety of one Leroy A. Kidd, on his official bond as the administrator of Joseph K. Kush, deceased; and which was executed in pursuance of a decree of the chancery court of Monroe, in a cause then pending therein between Odom, Lyon and Kidd, by which it was ordered, that a judgment at law against Odom, in favor of Kidd, and transferred by him to Lyon, should be perpetually enjoined, unless such bond was executed. The breach assigned in the complaint was, that plaintiff as the surety of said Kidd, had been compelled to pay, under execution from the probate court, the amount of a decree rendered by said court on the 19th February, 1855, in favor of James P. Kush, as administrator de bonis non of said Joseph K. Kush, deceased, against said Leroy A. Kidd, the administrator in chief, on which decree an execution had been previously issued against said Kidd, and returned “no property found;” and that the defendants refused to repay this amount.</p> <p>The defendants craved oyer of the condition of the bond, and pleaded, 1st, nul tiel record; and, 2dly, a special plea which was, in substance, as follows: That at the May term of said probate court, 1850, said Kidd made a final settlement of his administration on said estate, and a decree was then rendered against him by said court, “in favor of the heirs of said estate when known,” for $232 32; that letters of administration on said estate were after-wards granted to K. O. Torrey, as administrator de bonis non; that afterwards, to-wit, in 1854, Torrey’s letters were revoked by said court, and letters of administration de bonis non were granted to said James P. Rush; that at the January term of said probate court, 1855, said Kush filed his petition in said court, praying that the decree formerly rendered against Kidd, as above stated, might be rendered in his favor, as such administrator de bonis non; that at a special term of said probate court, held in February, 1855, a decree was rendered in favor of said Kush, as such administrator, against said Kidd, for $232 32, with interest from the 6th May, 1850 ; that an execution was afterwards issued on this decree, and returned “ no property found; “ all which proceedings of said orphans’ and probate court will more fully appear, by reference to tbe record ther eof herewith, filed.” — “And said defendants aver, that said decree of said orphans’ court, against said Kidd, and in favor of the heirs of said Joseph K. Kush, remains unreversed and unsatisfied; that neither said Kidd, nor said plaintiff and John J. Roach, his sureties, were made parties to the proceedings of said probate court set out in plaintiff’s complaint, nor had they any legal notice thereof; that said decree in favor of Kush was without authority, and void, and not binding on plaintiff', ñor was he obliged by law to pay the same,” &c.</p> <p>The plaintiff demurred to this special plea, 1st, for duplicity; 2d, because it states .conclusions of law, instead of facts; and, 3d, because it is not a sufficient answer to the complaint. The court sustained this demurrer, and decided the issue joined on the plea of nul tiel record in favor of the plaintiff.</p> <p>There is an agreement of counsel copied into the transcript by the clerk, in these words: “We agree, that the within copy of the proceedings of said orphans’ and probate court may be inserted in the transcript in this case, if the same should be taken to the supreme court; and that it, together with the decree of said court dated 6th May, 1850, a copy’of which is marked A.’; and a copy of the chancellor’s decree between said Odom and Lyon, may form a part of the pleadings, as fully as if inserted therein, and whatever else the parties may deem necessary of any record connected with the case.”</p> <p>The transcript from the records of said probate court, as set out under this agreement, contains the following proceedings:</p> <p>1. The decree of May 6th, 1850, against said Kidd, the material portion of which is as follows: “ It appears that said administrator has received and is chargeable with the sum of $1318 89, and that he is entitled to credits in the sum of $1086 57, leaving a balance in his hands of $232 32, to be distributed among the heirs of said estate hex-eafter, when known. Ordered, that the preceding statement stand as the judgment and decree of said court, and, after said distribution, that said estate be held and esteemed as finally closed. It is farther ordered, that the account current, as stated, be recorded and placed on. file.”</p> <p>2. A decretal order of the April term, 1854, revoking the letters of administration, previously granted to B. C. Torrey, and granting letters to James P. Bush.</p> <p>3. The petition of said Bush, which was filed on the 8th January, 1855, reciting the rendition of the former decree against Kidd, alleging that the same had not been paid or satisfied, and praying that a decree might be rendered in his favor, as administrator de bonis non, for the amount of said decree, with interest thereon; and the order of the court, made at the January term, 1855, appointing the third Monday in February then next for the hearing of said petition, and directing “that notice thereof be given, by publication in the Claiborne Southerner, for three successive weeks, so that all persons concerned may, if they think proper, appear and contest the same.”</p> <p>4. A decree, rendered at a special term held on the 29th February, 1855, in these words: “ This day came James P. Bush, administrator de bonis non of Joseph K. Bush, deceased, by attorney; (the same having been appointed for the hearing of his petition, praying that a decree may be rendered in his favor, as administrator as aforesaid, against L. A. Kidd, former administrator of said estate, for the amount of a certain decree heretofore rendered against said Kidd as such administrator, but not in favor of any particular person;) and the notice required by a previous order of court having been given ; and no person appearing to contest said petition; and the court being satisfied that the facts therein set forth are true: It is, therefore, ordered and decreed, that James P. Bush, administrator de bonis non on the estate of Joseph K. Bush, deceased, do have and recover of and from said Leroy A. Kidd, former administrator of said estate, the amount of said decree, to-wit, the sum of $232 32, with interest from the rendition thereof, to-wit, the 6th May, 1860; for which execution may issue.”</p> <p>5. A ji. fa. on this decree, purporting to be issued on the 26th February (?) 1855, received by the sheriff on the 7th May, and returned, on the 11th June, “ no property found;” an order of court, made at the August term next following, reciting the issue and l’etum of this execution, and directing the issue of an execution against the administrator and his sureties; and the execution thereon issued against said sureties, with their principal, under which plaintiff paid the money which he seeks to recover in this suit.</p> <p>The rulings of the court on the pleadings are now assigned as error.</p>

<p>[PARTIAL SETTLEMENT AND DISTRIBUTION OP DECEDENT’S ESTATE.]</p> <p>1. Mississippi statute of descent and distribution. — Under tbo Mississippi statute regulating the descent and distribution of the estates of intestates, as the same is set out in the record in this ease, an illegitimate child takes equally with legitimate children in the estate of their deceased mother.</p>

<p>[motion to dismiss suit fob want of secukity fob costs.]</p> <p>1. When appeal lien. — An appeal does not lie from an order of tlio circuit court, overruling a motion to dismiss the suit for want of security for costs.</p> <p>2. Jurisdiction by consent. — Consent of parties, express or implied, cannot confer on the appellate court jurisdiction of a cause in which there is no final judgment to support the appeal.</p>

<p>[bill in equity by feme covert, against purchaser at execution sale against HUSBAND, POR RECOVERY OE SLAVE.]</p> <p>1. What witness may state. — A witness may testify, in general terms, that he “loaned” a slave to another person.</p> <p>2. Distinction between gift and loan. — When a father sends a slave home with his newly married daughter and her husband, the law presumes that a gift was intended, unless a different intention is expressed at the time ; or, if a loan is declared, while the father has a positive intention never to exercise tbe rights of an owner in reference to the slave, the transaction cannot be distinguished from a gift; but, if a loan is declared, it cannot be converted into a gift, by the mere fact that the father had not then determined whether or not he would permit the slave to remain forever with the bailee.</p> <p>3. Declarations againstinteresl, and explanatory of possession. — The admission of the husband, while in possession of a slave, to the effect that he hold under a loan from his wife’s father, and was willing that the latter should convey the slave to the wife, are admissible evidence against a purchaser at execution sale against the husband, under a judgment subsequently rendered.</p> <p>4. Validity of voluntary conveyance. — A voluntary conveyance cannot be avoided by a subsequent creditor, without proof of an actual fraudulent intent.</p> <p>5. Possession referáble.to title. — The possession of a slave by tho husband, under a gift from his father-in-law for the sole and separate use of his wife, will be referred to the wife’s title, when it is shown that he and his wife were then living together.</p> <p>6. Statute of frauds as to proof of gift. — A voluntary conveyance of a slave, to the sole and separate use of a married woman, is not required to be acknowledged or proved in open court, when it is shown that the possession remained with the husband and wife under the deed.</p> <p>‘J. When wife may come into equity. — A married woman, whose separate personal property has been sold under execution against her husband, may come into equity for its recovery, whore no trustee was appointed by the deed which created her separate estate.</p>

<p>[SUMMARY PROCEEDING AGAINST CONSTABLE’S SURETIES.]</p> <p>1. Constable necessary party. — The constable is a necessary party to a summary proceeding, under the act of 1824, (Clay’s Digest, 219, § 87,) for failing to return an execution.</p> <p>2. Practice in appeal cases. — In a case removed by appeal or certiorari from a justice’s court, a new party cannot be brought in before the circuit court.</p>

<p>{TROVER FOR CONVERSION OF SLAVE.]</p> <p>1. Parol evidence not admissible, at law, to vary bill of sale. — -Where a bill of sale for a slave is, by the direction of the purchaser, executed by the vendor to a third person, and delivered to him, as a security for the repayment of the purchase-money advanced by him, the subsequent repayment of the money by the purchaser cannot, at law, divest the title out of such grantee. (Rice, O. J., dissenting.)</p>

Tried before tbe Hon. E. W. Pettus. This action was brought by John Eontaine against Charles G. Gunter, and was founded on a bill of exchange for $2500, which purported to be drawn by the defendant on Eontaine & Dent, of Mobile, was dated Montgomery, January 23, 1851, payable twelve months after date, at the Bank of Mobile, and endorsed by J. Moore and Lewis McQueen. The only plea was the general issue.

Heard before the Hon. Wade Keyes. The bill in this case was filed by Moses McLemore, the appellant, and sought to foreclose a mortgage on several slaves, which was executed by… Held: that the mortgagor was entitled to a credit for the money advanced by Mrs. Pinkston to the complainant; but ordered a foreclosure as to the balance paid by complainant for the mortgage. The complainant appeals from this decree, and assigns as error the allowance of the credits to the mortgagor.

AppíxcátioN for a mandamus to tbe circuit court of Tal-ladega, Hon. C. W. Rapier presiding, to compel that court to strike from its docket a cause therein pending, wherein Ezekiel McCravey is plaintiff, and David H. Remson defendant, on the ground that said cause has been discontinued.

Heard before the Hon. John Eostek. The bill in this case was filed by Giles L. Driver and William R. Hunt, executors of the last will and testament of Eli M. Driver, deceased, against James H. Scruggs, as executor of the last will and testament of Mrs. Julia S. Driver, who was the widow of said E. M. Driver; and sought the rescission of a contract, by which plaintiffs purchased from said Scruggs, acting as the agent of Mrs. Driver, her dower and distributive interest in the…

Heard, before tbe Hon. James B. Clark. The original bill in this case was filed by Thomas M. Thompson, against Columbus ~W. Lee, and sought, 1st, the rescission of a contract for the purchase of a tract of land, on account of the defendant’s misrepresentations as to the quality of the land, and the quantity subject to overflow; 2d, the cancellation of a mortgage on several slaves, which was afterwards given to secure the payment of the purchase-money for the land; 3d, the…

Heard before the Hon. Wade Keyes. The bill in this case was filed by Mrs. Matilda S. Pink-ston, suing by her next friend, against James K. Pink-ston, her husband, Moses MeLemore, andKebecca Smith; and sought to enjoin the two last named defendants from further proceedings at law, to subject to the satisfaction of their several judgments against said James K. Pink-ston, certain slaves and other personal property in which complainant claimed a separate estate.

Tried before the Hon. Alex. McKinstry. The prisoner was indicted for tbe murder of William Toomey, a police officer in tbe city of Mobile, wbo was stabbed in the.neck, in August, 1857, while attempting to quell an affray, and died on tbe 14th day afterwards. Of tbe several rulings of tbe court on tbe trial, to which exceptions were reserved by tbe prisoner, it is only necessary to notice tbe following: “ One P. I).

From the City Court of Mobile. Tried before the Hon. Alex. McKiNSTRY. The prisoner in this ease, who was a slave belonging to Mrs. Margaret Stuart, w’as indicted for the murder of a child named Lawrence Gomez, whose nurse he was; the child being four years and eleven months old at the time of the alleged murder.

From the Circuit Court of Perry. Tried before the TIou. C. W. Rapier. The prisoner was indicted for the larceny of a “ one-dollar bill of the Bank of East Tennessee, of the value of one dollar, and a ten-dollar bill of the Bank of Middle Tennessee, of the value of ten dollars;” alleged to have been the personal property of one 'William W. Sjialding, and to have been stolen from a storehouse.

From the Circuit Court of Franklin. Tried before tbe Hon. Robert Dou&herty. The prisoner, Robert R. Cbaney, was indicted, jointly with, one David B. Chaney, as an accessary before the fact, for the murder of David N. Martin by one Christopher Price; but was tried separately. The indictment was found at the September term, 1851, of the circuit court of Lauderdale. The case was removed by the defendants to Fi’anklin county, where a trial was had at the October term, 1857.

<p>[SCIRE FACIAS AGAINST BAIL.]</p> <p>1. Recognizance not part of record. — In scire facias against bail, for tbe failure of the principal to appear in accordance with the condition of their bond, the recognizance is no part of the record, unless made so by plea or bill of exceptions.</p> <p>2. Judgment final against bail. — In such proceeding, it is not necessary that the final judgment should show that the sureties were called and made default.</p>

Tried before the Hon. William M. Brooks. The indictment in this case charged, that the defendant “ did sell, give, or deliver, to a slave named Joe, the property of Mrs. Kavanaugh, vinous or spirituous liquor, without an order in writing, signed by the overseer or master of such slave, specifying the quantity to be sold, given or delivered.” “ On the trial,” as the bill of exceptions states, “ the State introduced a witness, who testified, that during Christmas week, 1856,…

From the Circuit Court of Perry. Tried before the Hon. C. W. Rapieii. The indictment in this case was in the general form prescribed by section 1059 of the Code. The bill of exceptions is as follows: “On the trial of this case, to make out the offense charged in the indictment, the State introduced the following testimony: That the defendant kept a store in said county, near to tbe public road leading from Greensboro’ to Centreville..

Erom the Circuit Court of Perry. Tried before tbe Hon. C. W. Rapiek. The indictment in this case, to which a demurrer was interposed and overruled, was in these words: “ The grand jury of said county charge, that Robert 0. Harris, before the finding of this indictment, played at a game with cards, or dice, or at some device or substitute therefor, at a tavern. And the grand jury of said county charge, that Robert 0.

Tried before the Hon. William M. Brooks. The bill of exceptions in this case is as follows': “In the organization of the jury in this ease, preliminary to the trial, the State objected to three of the jurors who were on the regular panel No. 1; and the court, before it would permit their places to be filled, required the defendant to make his objections to the remaining nine jurors ; the defendant objecting to this action of the court, and excepting to the overruling of his…

From the Circuit Court of Benton, (now Calhoun.) Tried before the Hon. ‘William M. BROOKS. The prisoner, Larlcin Bramlett, was indicted at the fall term, 1853, of the circuit court of Cherokee, for the murder of Benjamin E. O’Bannon; was arraigned at the same term, and- pleaded not guilty.

Tried before the Hon. S. X>. Hale. This proceeding was instituted by Brayton J. Hand, as relator, against William W. Taylor, for an alleged usurpation of the office of county treasurer of Randolph.

<p>[INDICTMENT POE CARRYING CONCEALED WEAPONS.]</p> <p>1. What constitutes such offense. — A person who, in the room of another in whieh there are several persons, bears in his vest pocket a pistol, which is willfully or knowingly covered or kept from sight, is guilty of a violation of the statute (Code, § 3274) against carrying concealed weapons.</p>

Tried before the Hon. William M. Brooks. The indictment in this case was found under section 771 of the Code, and charged that the defendants, who composed the court of county commissioners of Cherokee, had failed and neglected to discharge their duties as such commissioners, by not levying a county tax for the erection of a county jail; the old jail being, during their term' of office, insecure, insufficient in size, and not properly ventilated.

Vm. S. Mudd presiding, to compel the dismissal of a suit therein pending, wherein James B. Smith and others are plaintiffs, and William II. Jemison is defendant, on account of the plaintiffs’ failure to give security for the costs. The circuit court overruled the motion to dismiss the suit, because it appeared that one of the plaintiffs was a resident citizen of this State at the time the suit was commenced, and so continued up to the time when the motion wras heard.

Tried before tbe Hon. Robebt Doughebtt. IN tbis case, an indictment having been found at tbe spring term, 1854, of tbe circuit court of Macon, against Geo. N. Eldred and J. Robinson, for exhibiting, “ at tbe village of Union Springs in said county, a side show, without first having paid tbe license as by tbe statute made and providedtbe defendant Eldred, when arrested, gave bail for bis appearance at tbe next term of said court, to answer said indictment.

IN the matter of the estate of David ~W. Clark, deceased, which was declared insolvent on the 2d June, 1856.

Tried before the Hon. Nat. Cook. In this case, a final judgment on verdict having been rendered in favor of Ryan & Martin against Zacbariah White, the defendant filed a petition for rehearing, within the period allowed by the statute; the material allegations of the petition being as. follows: “Your petitioner was surprised to learn that, at the last term of said circuit court, a judgment was rendered against him, in favor of Ryan & Martin.

Tried before the Hon. Nat. Cook. This action was brought by 'William Dwyer, for the use of John G-.

IN the matter of the estate of David W. Clark, deceased, which was declared insolvent on the 2d June, 1856.

Tried before the Hon. C. W. Rapiee. This action was brought by Charles Crommelin, against B. 8. Thiess & Co., to recover $500 for the use and occupation of a storehouse in the city of Montgomery, “from the 1st October, 1854, to the 1st April, 1855'’; and was commenced on the 18th April, 1855.

<p>Appeal from the City Court of Mobile.</p> <p>Tried before the Hon. Alex. McKinstry.</p> <p>This action was brought by George C. Yonge, against the Mobile and Ohio Railroad Company, to recover $300, due by open account, for provisions furnished, and work and labor done for said company. On the trial, the plaintiff offered to establish the correctness of his demand by his own oath; having given the notice prescribed by the statute. The defendant objected to this, and the court sustained the objection; to which the plaintiff excepted, and which he now assigns as error.</p>

IN the matter of the estate of John M. Pinckard, deceased, which was declared insolvent by said probate court, (but at what time the record does not show,) and against which a claim was filed by the appellants, within the time allowed by the statute.

<p>AppiioatioN by Mrs. Jane H. Boaz, suing by her next friend, for a writ of mandamus, or other remedial process, to be directed to the probate court of Balias, for the purpose of compelling that court to take jurisdiction of her petition for the writ of habeas corpus against her husband, to obtain from him the custody of her infant child. The petition for the writ of habeas corpus, the defendant’s answer thereto, the. evidence adduced on the hearing, and the decision of the probate judge, declining to act ’for want of jurisdiction, are made part of the application to this court. The petition alleged, that Mrs. Boaz had been married to her said husband about four years, and had in the meantime given birth to a female child, who was about two years old when the petition was filed; that her husband, a short time before the filing of the petition, had abandoned her, on account of the institution by her of a chancery suit against him respecting certain property which she claimed as her separate estate, and had removed to another plantation owned by him, carrying with him, against the petitioner’s remonstrances, their said infant child; and that, in consideration of the infant’s sex and tender years, the petitioner is its lawful custodian. In his answer to the writ of habeas corpus, the defendant admitted, that he had voluntarily abandoned his wife, (but for reasons which he deemed sufficient to justify him in so doing,) and had taken his child with him ; asserted his lawful right to its custody, and denied that he exercised towards it any unlawful or improper restraint; and denied that the probate judge had any jurisdiction to deprive him of its custody on the application of the petitioner.</p> <p>— The general doctrine of the common law, that the father is entitled to the guardianship and custody of his child, is admitted; and it is further admitted that, in case of the voluntary separation of the husband and wife, the custody of the children is a question -which the statute gives to the decision of the chancellor. The application here is rested on a distinct ground: the mother’s right to the custody of her infant child for nurture; in which case, the court acts solely for the good of the infant, irrespective of other considerations. — 8 Burr. 1436; 1 Stra. 444; 2 Stra. 982; 3 Oon. Eng. Ch. B. 120, note b; 8 Paige, 56; 25 Wendell, 95; 4 Johns. Ch. 83; 13 Johns. 418; 3' Mason, 485; 5 Binney, 520; 18 'Wendell, 637; 6 Rich. (Law) R. 344; 8 Johns. 328; 4 Humph. 535; Forsyth on Infants, 10, 65; Bishop on Marriage and Divorce, § 633. The common-law doctrine, as to the father’s right to the custody of his child, is based upon his obligation to support it, and his right to its services; he being the only member of the family who could hold property. The principle ought not to obtain here, at least to the same extent; for our laws give the wife a separate estate, and make it liable for the support of her family.</p> <p>cited 16 Pick. 203; 8 Paige, 68; 2 Story’s Equity, § 1341; 4 Johns. Ch. 80 ; 13 Johns. 419; 5 East, 221; 25 Wendell, 64, 104; 18 Wendell, 638; 19 Wendell, 16; 16 Eng. Law and Eq. R. 221; 12 ib. 463; 14 Geo. 657; 6 Rich. Eq. 249; Bright on Husband and Wife, 318, note d; Bishop on Marriage and Divorce, 633-41; 19 Ala. 604; 17 Ala. 14; 3 Ala. 760; 2 Ala. 531.</p>

Tried before the Hon. E. W. Pettus. This action was brought by the appellants, and was founded on the defendant’s guaranty of a promissory note for $581 50, made by Rudler & Rockwell, dated September 28, 1849, and payable eight months after date, to the plaintiffs’ order.

Tried before tlie-Hon. C. W. Ra-piee. This action was brought by the appellees, against Charles W. Durden and Martha, his wife; the complaint being as follows: “The plaintiffs claim of the defendants the sum of $130, due by account on the 1st January, 1857, for goods, wares and merchandise sold and delivered by plaintiffs to defendants, on said 1st January, 1857, at their special instance and request.

Tried before the Hon. Alex. McKinstby. The complaint in this case was as follows r “ Lewis Daniels and Armstead M. Elgin, partners under the firm name and style of Daniels.

Tried before the Hon. Alex. McKiNStby. This action was brought by Mrs. Martha E. McConeghy, wife of William McConeghy, against Hugh McCaw, to recover damages for the conversion of a slave named Hide, which the plaintiff claimed as a part of her separate estate, under the facts hereinafter stated, and -which the defendant induced the sheriff' of Mobile to sell under execution against said William McConeghy.

Tried before the Hon. Wm. S. Mudd. This was a motion for a summary judgment, under section 2619 of the Code, against the appellant and his sureties on his official bond as clerk of the circuit court of Jackson county, for his failure to issue an execution, within the time prescribed by law, on a judgment which the plaintiffs bad obtained, at the March term, 1855, of said court, against J. M. & W. J. Greene.

Heard before the Hon. JAMES B. Clark. The bill in this case was filed by the appellants, in November, 1854, seeking an assignment of Mrs. Bidg-way’s dower in certain lands, of which her former husband, George W. McAlpine, was seized and possessed during coverture, and which were aliened by him.

Tried before the Hon. E. W. Pettus. This action was brought in the name of Henry W. Collier, for the use of Henry A. Temple, against Stephen A. Pearce, sheriff of Coosa county, and the sureties on his official bond; and sought a recovery for injuries caused by the jailor’s negligence, in the treatment of a slave belonging to said Temple, while in jail as a runaway.

Tried before tbe Hon. Johk E. Moore. The complaint in this case, to wbicb tbe court below sustained a demurrer, was as follows: “Tbe plaintiff claims of tbe mayor, aldermen and common council of tbe city of Mobile, a corporate body of tbe State of Alabama, $2,000 damages, for tbe loss and destruction of a slave named Henry, of tbe value of $1,500, tbe property of plaintiff; which said slave was killed and destroyed by tbe officers, servants, and agents of tbe defendants,…

Heard before the Hon. A. J. Walker. The bill in this case was filed, in August, 1852, by Mrs. Emily Cornelius, suing by her next friend, against her husband, William Cornelius; and sought a divorce a vinculo matrimonii, on the ground of the defendant’s cruelty, resulting from his habitual intoxication; also, a division of the husband’s property, and that the custody and education of the only child of the marriage, who was about three months old when the bill was filed, might…

The record in this case shows these facts: 'Robert S. Hatcher and John A. Lodor were appointed by said court (at what time does not appear) administrators de bonis non, cum, testamento annexo, of William P. Dunham, deceased; and, by virtue of said appointment, undertook to act as testamentary guardians of Texana Dunham and Willie P. Dunham, infant children of said decedent, but without giving bond as guardians.

. Tried before the Hon. ANDREW B. Mooee. This action was brought by John L. Storrs, against James L. R. Leonard; and was founded on a promissory note for $867, made by the defendant and one Daniel Courtney, dated Montevallo, January 16th, 1854, and payable four months after date, to the order of J. C. Riddle, The pleadings were drawn out at great length, presenting substantially the same question in different forms; but the decision of the court renders it unnecessary to…

Tried before the Hon. JoHN Gill Shorter. This action was brought by Robert B. Smith, against William J. Garrett and Daniel T. McCall; and was founded on the defendants’ promissory note for $420, given for the unpaid balance of the purchase-money of a slave sold to them by plaintiff.

<p>.Appeal from the Circuit Court of Marshall.</p> <p>Tried before the Hon. ’Wm. S. Mudd.</p> <p>This action was brought by William Blassingame, against Solomon S. Ledbetter, to recover damages for the wrongful taking of a wagon, which had been manufactured for the plaintiff by one J. C. Cornwell, in pursuance of a contract between them, and which was sold by the defendant, as constable, under the order of a justice of the peace. The wagon never was delivered to the plaintiff, and never was in his possession: Before or about the time of its completion, Cornwell, the manufacturer, was summoned by process of garnishment, returnable before a justice of the peace, as the debtor of plaintiff; and, on answering that he “was indebted to plaintiff for a two-horse wagon, worth $75,” the wagon was condemned in his hands by the justice, as the property of plaintiff, and was after-wards sold by the defendant, as a constable, under the order of the justice. On these facts,'the court, charged the jury, among other things, “that if they should believe from the evidence that, before and at the time of the service of the garnishment, Cornwell had the wagon finished, and ready to be delivered to plaintiff when called for, and was only holding the wagon for the use of the plaintiff, then plaintiff had such a possession, or right to the possession of the wagon, as would enable him to maintain, this action.” The defendant reserved an exception to this charge, and he now assigns it as error.</p>

Tried before the Horn Alex. McKiNStry. This was a proceeding in admiralty, instituted by Wm. H. Lewis & Co., against the steamboat J. JR. Thompson, to enforce a claim for materials and repairs amounting to ¡$188 62. An account, showing the different items of which the debt was composed, extending from the 21st December, 1855, to the 19th March, 1856, was annexed to the libel.

<p>Appeal from tbe Circuit Court of "Wilcox.</p> <p>Tried before the Plou. E. W. Pettus.</p> <p>The appellee in this case was summoned, at the suit of the appellants and five other attaching creditors, as the debtor of J. B. & N. E. Camp; and filed an answer in each case, denying any indebtedness; which answer was not controverted. The garnishments were all returnable to the same term of the court. The garnishee resided in Butts county, Georgia; but the garnishment was served on him in Wilcox county, in this State, while on a visit. On these facts, the circuit court held, that the garnishee was entitled, in each case in which he was summoned, in addition to his per-diem compensation, to mileage from the court-house of the county to the State line, in the direction of his residence, by the route most usually traveled; to which the attaching creditoi's excepted, and which they now assign as error.</p>

Tried before the lion. Alex. MoEiNStey. This action was brought by the appellant, against the owners of the steamboat Eliza Battle, as common carriers, to recover damages for the loss of seven bales of cotton, which were shipped on board of said boat at Warsaw, in Sumter county, to be delivered to Lyon, Hudson & Bush, in Mobile; and which were destroyed by fire while on the boat.

Tried before the Hon. Tiios. A. Walker. The appellant was summoned, on the 29th December, 1851, by process of garnishment, at the suit of the appellees, as the debtor of A. S. Ayeock, against whom the appel-lees had recovered a judgment, in said circuit court, on the 29th February, 1847, for $1065 66; and filed an answer, in these words: “John Hall, garnishee in this cause, for answer thereto, says, that he was not indebted to said A. S. Aycock, at the time of the service of…

Tried before tire lion. Nat. Cook. The record in this case shows the following facts: On the 10th April, 1855, William B. Head obtained a judgment, in said circuit court, against John C. Oldham; and ©n the 6th March, 1856, sued out a garnishment thereon, which was served on Alexander H. Falconer, the clerk of said court.

Tried before the Hon. Robeet Houg-hehty. The appellees commenced suit, by original attachment, issued on the 23d June, 1852, against Levi M. Sennett; and summoned the appellant by process of garnishment, on the 24th June, as the debtor of said Sennett. At the return term of the garnishment, the garnishee answered, denying any indebtedness; but his answer was controverted on the affidavit of the plaintiffs’ attorney, and the issue formed thereon was found against him.

IN the matter of tlie last will and testament of Thomas Hughes, deceased, which was executed iu South Carolina, in February, 1847; was propounded for probate in February, 1854, by William C. Dunn, the executor therein named, who had married the testator’s only daughter; and was contested by Thomas Hughes, the testator’s only son, on the grounds of mental incapacity, fraud, and undue influence.

Tried before the Hon. S. D. Hale. This was a trial of tbe right of property in 'a lot of cotton, between I. & J. M. Lampley, plaintiffs in execution against Thomas Sheppard, and the appellants as claimants.

Tried before the Hon. Alex. McKiNSThy. This action was brought by the appellee, against Baniel Walker, Jacob B. Walker, and Edward E. Shields, as owners of the steamboat Farmer, to recover |232 21, due by open account, for work and labor done, and materials furnished said steamboat; and the further sum of $361, “ premium of insurance due and payable from defendants to plaintiff in respect of plaintiff’s having underwritten a policy of insurance, on behalf of defendants, and…

Tried before the Hon. S. D. Hale. This action was brought by the appellants, as iiartuers, against Edward L. McIntyre, and was founded on an open account.

■Tried before the Hon. Robt. Dougherty. IN this case, the appellee filed a petition, uuder section 2408 of the Code, to set aside a final judgment which had been rendered against him, at the last preceding term of said circuit court, in favor of the appellant.

<p>Appeal from the Circuit Court of Barbour.</p> <p>Tried before the Hon. JohN E. MooRe.</p> <p>The complaint in this case was as follows :</p> <p>“Michael Sborran, sr.,\ The plaintiffs claim of the Michael Sherran, jr., ( defendant $460, for the breach vs. ( of an agreement, entered into Joseph C. Boylston. / by him on the 28th, June, 1854, in substance as follows: ‘ June 28th, 1854. Contract between Joseph C. Boylston on one part, and Michael Sher-ran of the other part: The said Sherran agrees to cut a canal, or ditch, three quarters of a mile long, twelve feet wide, one foot and a half deep, more or less; the earth to be thrown on the east side of the ditch, making a dam oí levee. The said Joseph C. Boylston agrees to pay said Michael Sherran $460 when the job is completed. In witness whereof, we have hereunto set our hands and seals.’ (Signed) ‘Joseph C. Boylston, Michael Sherran, Michael Sherran.’ Yet, although the plaintiff has complied with all its provisions on his part, the defendant has failed to comply with the following provisions thereof: he has failed and refused to pay the said plaintiffs the said sum of $460, according to his agreement, on the completion of said job of work. Plaintiffs claim interest on said sum of money, from the 20th May, 1855.”</p> <p>“ Seals & Cox,”</p> <p>“ att’ysforpltffs.”</p> <p>At the bottom of this complaint, as copied into the transcript, is a memorandum in these words, “ Common counts added by consent; ” which is not signed by any one.</p> <p>The action was commenced on the 15th September, 1855. Accompanying the complaint was an affidavit, made and subscribed by both of the plaintiffs on the 26th May, 1855, to the effect that the contract, as set out in the complaint, “is a copy of an original instrument which they had in their possession, as their property; that the same has been lost, and has not been paid or otherwise discharged; and that the said amount in the said instrument is still due to them.” The only plea was the general issue, upon which issue was joined. On the trial, after reading their complaint and affidavit, the plaintiffs offered in evidence an admitted copy of the original con-ti’act between them and the defendant, which was in these words:</p> <p>“ 28th June, 1854. A contract between J. C. Boylston on the one part, and Michael Sherran on the other : The said Sherran agrees to complete a canal f- mile long, 12 feet wide; throwing the dirt on the east side, making a dam or levee 1-f- feet deep, more or less; also, to open the track; for $460, to be paid by J. C. Boylston at the completion of said job. In witness whereof, we set our hands and seal.” (Signed by the three parties.)</p> <p>The defendant objected to the introduction of this contract, on the ground that it was variant from the contract declared on. The court overruled the objection, because the defendant had not interposed a sworn plea, denying the execution or contents of the instrument as set out in the complaint; to which the defendant excepted, and which he now assigns as error.</p> <p>— 1. There was a fatal variance between the contract declared on and that offei-ed in evidence. — McLendon v. Godfrey, 8 Ala. 181; May & Bell v. Miller & Co., 27 Ala, 515; 4 Texas, 85; 9 N. H. 304; 12 N. II. 52.</p> <p>2. There was but one count in the complaint. The record does not show that the common counts were added, nor could they have been added without making the complaint demurrable.</p> <p>8. The instrument sued on is not within the terms of the statute (Code, § 2151) requiring a sworn plea of non est factum ; nor would such plea have been necessary, even if the case were within the statute, to enable the defendant to take advantage of a variance.</p> <p>contended, — 1st, that there was no substantial variance between the contract set out in the complaint and that offered in evidence; 2d, that the contract was admissible under the common counts, if not under the special count; and, 3d, that a sworn plea was necessary, under section 2151 of the Code, to enable the defendant to deny the execution or contents of the contract declared on.</p>

<p>[action against municipal corporation on special contkaot.]</p> <p>1. Powers of corporate authorities of Livingston to procure water. — The corporate authorities of the town of Livingston, under their charter and the act amendatory thereof, (Session Acts 1834-5, p. 133; lb. 1839-40, p. 123,) have power to procure a supply of water on the public square of the town, and are themselves the judges of the mode and manner best calculated to accomplish that object.</p> <p>2. What defenses corporation may set up in avoidance of contract. — In an action against a municipal corporation, to recover the price agreed to be paid for the boring of an artesian well, the defense cannot be set up that, -though the corporate authorities had power to contract for the procuring of a supply of water on the public square of the town, they ought to have adopted some less expensive means of procuring it.</p> <p>3. Joinder of causes of action, and assignment of breaches. — In an action on a special contract, to recover the agreed price for work done, it is not necessary to assign a special breach ; and if such breach be assigned, the common counts may nevertheless be added. — Code, § 2235.</p> <p>4. Plea must go as far as it professes. — A plea which, while professing to answer the whole action, answers a part only, is fatally defective on demurrer.</p>

<p>Appeal from tbe Circuit Court of Coosa.</p> <p>Tried before tbe Hon. Robeet Doughee,ty.</p> <p>The . appellant was summoned by process of garnishment, at tbe suit of tbe appellees, as tbe debtor of tbe Central Plank-Road Company, and answered in open court as follows:</p> <p>“ Tbat be bad a contract with said Central Plank-Road Company, by tbe terms of wbicb be was to pay $20 per mile, per annum, for running bis stages over tbe road of said company. When tbat contract went into effect, sixty-five miles of tbe road were completed. He paid tbe company, to tbe 1st August, 1858, all they claimed be owed them. From tbe 1st August to tbe 24tb December, 1853, be was indebted, if tbe company bad complied witb tbeir contract; during tbat time be paid nothing. He bad tbe use of tbe road from 1st August to 24th December, 1858, except on tbe 1st, 2d and 8d days of August, when be was interrupted by tbe company, and was prevented from traveling tbe road witb his stages. Said contract witb tbe company was to extend to tbe 1st July, 1854. He used tbe road from tbe 24th December, 1853, to the 1st July, 1854, except such parts of it as could not be used. He remembered but two places where tbe road could not be used, but was informed of many others. From tbe 1st July, 1854, to tbe present time, Powell & Taylor used the road for running stages; but, for two months of this time, they used it in the name of "Wilkins. On tbe 2d March, 1854, the gates on the road were thrown open by operation of law. From tbe 24th December, 1853, to the 2d March, 1854, be used the road; but be denies that be is liable to pay for tbe same, either under said contract or otherwise. From the 2d March to the 1st July, 1854, he used such portions of the road as could be used; but he denies that he is liable to pay for it, either under the -contract or otherwise, the gates having been thrown open by operation of law, by order of the commissioners under an act of the last legislature. From the 1st August to the 24th December, 1853, he claimed the right to use the road under said contract; hut he neither admits nor denies that he owes anything for it. From the 1st July, 1854, up to the present time, Powell & Taylor used the road, but not under any contract with said company or any other person. He denies that he owes anything for using the road from the 1st July, 1854, to the present time; because the road had been thrown open to the use of the public, by commissioners under an act of the legislature. The money for running the road was, under the contract, to be due annually; the first annual payment to be .made on the 1st July, 1853, and the second on the 1st July, 1854. He settled up Avith the company to the 1st August, 1853, and paid about $100 (the amount not recollected) under protest. This was a charge for crossing two bridges, for crossing which he was not liable to payanything; and he claims this as a set-off.</p> <p>“ Garnishee, further answering, says that, after being-prevented from running the road with his stages on the 1st, 2d and 3d August, he filed a bill in chancery against said company, for an injunction, and sued out a writ of injunction, after giving bond with the usual conditions in such cases. Said bill was not filed to enforce a specific performance of the contract; it is still pending, but the injunction dissolved. He claims $300 from the company for the non-compliance with the contract on their part. He has been informed that the plank-road was sold on the 1st May, 1854. The company abandoned the road from and after the 2d March, 1854; the gates were opened, and the company had no agent on the road to receive or claim toll, aiid no toll was demanded up to this time. When the contract was made, the road was in good repair, but is now in bad condition. Injury 25 per cent, on that account-on the value of the use of the road from the 1st July, 1854, and 10 per cent, for six or eight months preceding that time. The validity of said contract is in issue in said chancery suit; the company denying its validity, and garnishee insisting that it is valid and binding. Wilkins used the road for two months; but Powell & Taylor made no contract with him to assume any liabilities for any trespass committed, or damages done by him to said road. The contract speaks of annual settlements only, and nothing is said in it about bridges ; except as to a bridge over the Tallapoosa river, for crossing which he was to pay when it was built. This bridge was on the Montgomery and Wetumpka plank-road, which was embraced in the same contract with the Central plank-road. He claims under the contract the right to use the entire length of the road,'without any extra charge for crossing bridges, except said bridge that was to be erected over the Tallapoosa river; and was to pay, to the Montgomery and Wetumpka Plank-Road Company, about $100 per annum, ferriage across said river. He was interrupted in crossing said ferry by the ferry-man, under the direction, as he said, of John G. Winter, the president of the Central Plank-Road Company, and was required to pay toll before his stages were permitted to cross the ferry. This was in the latter part of the fall or winter, 1853. Again, in March, 1854, he was required to pay toll at said ferry by the same authority, and was thereby forced to quit [crossing] in said ferry. There was no toll-gate at any one of the bridges on said Central plank-road, nor was any toll ever demanded of him at any of said bridges. The Central Plank-Road Company never interrupted him at said ferry on the Tallapoosa river, except John G. Winter, its president. At the time of the alleged violation of said contract, John G. Winter, claiming to act as the agent of the Central Plank-Road Company, demanded of garnishee $12,000 or $13,000 per annum for 90 miles of road, and at another time demanded 25 cents per mile for each time his stages passed the road. He received a notice from John Gr. "Winter, acting as agent for tbe company, stating that they would charge him for the use of the road; but he disregarded said notice, claiming the right to travel the road under said contract. The road was worth $20 per mile, subject to a deduction of 25 per cent, on the value of the use of the road, from the 15th January, 1854, up to this time; and for six or eight months prior to the 15th January, 1854, he claims a deduction of 10 per cent., for the bad condition of the road. The balance of the time the road was worth $20 per mile.”</p> <p>This answer being contested by the plaintiffs, an issue was made up between the parties; but at the next term, as appears from the bill of exceptions, “ the court withdrew the cause from the jury, and proceeded to render judgment against the garnishee on his answer ” for $1382 63; to which the garnishee excepted, and which he now assigns as error.</p> <p>made the following points:</p> <p>1. On motion for judgment on the answer, the answer must taken as true; and judgment cannot be rendered against the garnishee, unless the answer admits an indebtedness which the debtor himself might recover in debt or indebitatus assumpsit.</p> <p>2. The demand in favor of the Central Plank-Boad Company, disclosed by the answer, is not of such a nature as can be reached by process of garnisment. — Nes-bitt v. Ware & McClanahan, 30 Ala. 68, and authorities cited.</p> <p>3. The answer discloses a breach of contract on the part of the company, and that the gaimishee only got possession of the road by virtue of an injunction bond, on which he is still .liable. The company could not, under these circumstances, proceed to judgment against the garnishee, either upon the express contract, or upon an implied promise, until the determination of the injunction suit.</p> <p>4. The abandonment of the road by the company, as alleged in the answer, no matter for what cause, threw the road open to tbe public. The charter only authorized the company to charge toll when its road was kept in repair, and toll-gates established.</p> <p>5. The act of 1854, under which the road was thrown open by the commissioners, is not obnoxious to any of the constitutional objections urged against it. The company was bound by its charter to keep the road in repair, “ so as to afford a safe and convenient transit for persons or freight; ” and yet the charter prescribed no remedy to be pursued, either by the State or an injured party, for a neglect of this duty. The act of 1854 only supplied this omission, and provided a summary remedy to enforce the duty undertaken by the company. This act does not affect the charter of the company, or any of its vested rights; nor does it impose any new duty or liability on it. It is analogous to a statute giving a summary remedy for the enforcement of an existing contract. The charter does not authorize the company to receive tolls when it fails to keep its road in repair; and there is nothing in the charter which could preclude the legislature from prescribing the mode of ascertaining when the road is out of repair. In support of these propositions, see the following analogous cases: 6 How. (U. S.) Rep. 607; 2 Ala. 452; 5 Cranch, 281; 10 Wheaton, 246; 6 Peters, 404; 8 Peters, 88; 2 Sandf. 355; 11 Ohio, 112; 16 How. (U. S.) Rep. 406 ; 9 Ala. 236.</p> <p>— 1. The charter of the company conferred on it unlimited powers as to tolls.</p> <p>2. This charter was accepted by the company, and large sums of money were expended on the faith of it. It thus became a contract, which the legislature could not, without the consent of the stockholders, violate or impair. 4 Peters, 514; 4 Wheaton, 537; 34 Maine, 415; 13 Ire-dell, 75; 10 Geo. 190; 2 Stewart, 30; 3 01. & Pin. 513, 521; 14 Barbour, 405; 27 Miss. 517; 13 B. Monroe, 150; 13 Vermont, 402, 525; 11 N. H. 19; 23 Ala. 68.</p> <p>3. The act referred to in the answer of the garnishee, under which the gates of the company were thrown open, is unconstitutional and void, in that it attempts to take away tbe vested rights of the company, without a trial by jury, without a judicial investigation, and without due process of law. — 34 Maine, 247; 3 Mass. 146; 3 Pick. 343; 17 Johns. 195; 2 John. Oh. 162; 8 Sm. & Mar. 9; 15 Barbour, 517; 3 How. (Miss.) 246.</p> <p>4. The answer admits an indebtedness sufficient to support the judgment, outside of the matters covered by the legal questions involved.</p>

<p>Appeal from tte Circuit Court of Macon.</p> <p>Tried before tbe Hon. Robt. Dougherty.</p> <p>This action was brought by Abram Martin, as administrator de bonis non of Joseph Fitzpatrick, deceased, against "William H. Baker; and was commenced in December, 1850. The cause of action, as endorsed on the writ, was “a promise by the defendant, to one Charles Cook, to pay to the executor of Joseph Fitzpatrick, deceased, the amount of a judgment recovered by said executor against said Cook, in the county court of Macon county, in consideration of the sale of 240 acres of land in section 34, 14, 24, and the transfer by said Cook to said defendant of the bond of Jas. C. Watson & Co., for the east half of said section; also, upon defendant’s promise to said Cook to pay the holders and owners of two notes, given by said Cook to said Jas. 0. Watson & Co., one for $400, and the other for about $420, in consideration of the sale by said Cook of 240 acres of land,” &c.</p> <p>On the trial, as appears from the bill of exceptions, the plaintiff offered in evidence the deposition of said Charles Cook, which was taken on interrogatories and cross interrogatories. This deposition was excluded by the court, on the objection of the defendant; to which the plaintiff excepted, and which he now assigns as error.</p>

<p>[supersedeas op execution.]</p> <p>1. Construction of agreement as to extinguishment of judgment. — Where a judgment debtor transfers to his creditor a claim for services rendered as special register in a chancery cause, under an agreement that the amount allowed and realized on it is to be applied to the payment of the judgment, and that the judgment is to be extinguished if $700 is realized from the claim, — the judgment is not extinguished, if less than $100 is allowed and realized on the claim, although the defendant himself pays enough to make up that amount.</p> <p>2. Summary judgment on supersedeas bond. — There is no statute now of force in this State which authorizes a summary judgment against the surety on a supersedeas bond.</p> <p>3. Judgment reversed and rendered. — In reversing a judgment on appeal, the appellate court will render the proper judgment, (Code, § 3034,) when the record states facts sufficient to authorize it.</p> <p>Note bt Reporter. — On a subsequent day of the term, the following opinion was delivered:</p>

<p>[ACTION ON PROMISSORY NOTES — PLEAS, STATUTE OP LIMITATIONS, AND DISCHARGE IN BANKRUPTCY.]</p> <p>1. Variance. — In an action on a promissory note barred by the statute of limitations, to which the defendant pleads the statute of limitations and bankruptcy, and the plaintiff replies a subsequent promise, proof of a subsequent promise by the defendant to pay the principal only, without the interest, does not entitle the plaintiff to a recovery.</p> <p>2. Parol evidence of indebtedness. — The issue being whether the defendant was able to pay a debt barred by the statute of limitations and of bankruptcy, he may prove his indebtedness to third persons, without producing the written evidence of that indebtedness, or accounting for its non-production.</p>

<p>Appeal from the City Court of Mobile.</p> <p>Tried before the Hon. Alex. McKiNStrt.</p> <p>This was a petition for freedom, under section 2049 of the Code, by Grasey and her children, who are described in the proceedings as “persons of African descent,” against Hildreth Bloodgood and his wife, who claimed them as slaves. The petitioners claimed their freedom under a deed of manumission from Josias ~W. Dallam to the maternal grandmother of Grasey, with other slaves ; which was executed in Maryland, and of which the following is a copy:</p> <p>“ To all whom these presents shall come, Greeting : I, Josias "W. Dallam, of Harford county, in the State of Maryland, for divers good causes and considerations me thereunto moving, do hereby declare free, manumit and enfranchise, the negroes following, to-wit: Oromwell, to be free at the expiration of too years; Malborough, 'at the expiration of four years; Orange, at the expiration of five years ; Lemon, at tbe expiration of eleven years; Hannah, at tbe expiration of thirteen years; Nance, at tbe expiration of fifteen years; Sook, at tbe expiration of seventeen years from tbe date of tbis manumission. All the children, or children’s children, that may desend from said negroes, and be born in slavery from tbe date hereof, shall be free at twenty-three years of age. Hereby acknowledging the said negroes discharged from all claim of service, and right of property whatever, from me, my heirs, executors and administrators, at the periods above specified. As witness my hand and seal, this thirteenth day of March, in the year of our Lord one thousand seven hundred and eighty-seven.”</p> <p>• “ Josias Vm. Dallam, [seal.]”</p> <p>“Attest: John Archer.”</p> <p>The petitioner Grasey was the daughter of one Matilda, who was the daughter of Hannah, one of the slaves mentioned in the deed. To prove the validity of the deed of manumission, the petitioners read in evidence a certified copy of a statute law of Maryland, which was enacted on the 23d June, 1752, and continued in force, by successive statutes, until 1796; an extract from which, “containing all the provisions of the law of Maryland on the subject of the emancipation of slaves, so far as pertinent to the case, that was introduced in evidence,” is made an exhibit to the bill of exceptions, and is as follows :</p> <p>“An act to prevent disabled and superannuated slaves being set free, or the manumission of slaves by any last will and testament; approved 23d June, 1752.</p> <p>“ * * * And to the end that hereafter there may be an uniform and regular manner of granting freedom to slaves, be it likewise enacted, that where any person or persons, possessed of' any slave or slaves within this province, who are or shall be of healthy constitutions, and sound in mind and body, capable by labor to- procure to him or them sufficient food and raiment, with other requisite necessaries of lite, and not exceeding fifty years of age; and such person or persons, possessing such slave or slaves as aforesaid, and being willing and desirous to set free or manumit such slave or slaves, may, by writing under bis, her or their hand and seal, evidenced by two good and sufficient witnesses at least, grant to such slave or slaves, his, her or their freedom; and that any deed or writing, whereby freedom shall be given or granted to any such slave, which shall be intended to take effect in future, shall be good to all intents, constructions and purposes whatsoever, from the time that such freedom or manumission is intended to commence by the said deed or writing, so that such deed and writing be not in prejudice of creditors, and that such slave, at the time of such freedom or manumission shall take place or commence, be not above the age aforesaid, and be able to work and gain a sufficient Mvetyhood and maintenance, according to the true intent and meaning of this act; which instrument of writing shall be acknowledged before one justice of the peace, of the county wherein the person or persons granting such freedom shall reside; which justice shall endorse on the back of such instrument the time of the acknowledgment, and the party making the same, which he or they, or the parlys concerned, shall cause to be entered among the records of the county court where the person or persons granting such freedom shall reside, within sis months after the date of such instrument of writing; and the clerk or clerks of the respective county courts within this province shall, immediately upon the receipt of said instrument, endorse the time of his receiving the same, and shall well and truly enroll such deed or instrument, in a good and sufficient book in folio, to be regularly alphabeted, in the names of both parties, and to remain in the custody of said clerk or clerks for the time being, among the records of the respective county courts; and that the said clerk or clerks shall, on the back of every such instrument, in a full, legible hand, make an endorsement of such enrollment, and also of the folio of the book in which the same shall be enrolled, and to such endorsement set his hand; the person or persons requiring such entry paying the usual and legal fees for the same. And be it likewise enacted, that a copy of such record, duly attested under the seal of such office, shall, at all times hereafter, be deemed, to all intents and purposes, good evidence to prove such freedom. And to the end that this act may be duly observed, the justices of every county court within this province respectively shall, at their respective county courts to be held in March yearly, give in charge to the respective grand juries of each respective county to inquire into any breaches made contrary to this act. This act to continue for three years, and to the end of the next session of assembly which shall happen after the expiration of the said three years.”</p> <p>'When the petitioners offered in evidence the certified copy of the deed on which they based their claim to freedom, the defendants objected to its admission, on several grounds, one of which was, “that said deed was not evidenced by two witnesses, as required by the said Maryland statute of 1752;” and, “to show the judicial construction of said act by the courts of Maryland,” read to the court the reports of the following adjudged cases before the court of appeals of Maryland: Negro James v. Gaither, 2 liar. & John. 176-78 ; and Young v. State of Maryland, 7 Gill & John. 253-62. On the authority of these decisions, construing the Maryland statute, the defendants objected to the admission of the deed offered by the petitioners, and moved the court to exclude it from the jury; but the court overruled the objection, and the defendants excepted.</p> <p>The petitioners, having adduced evidence tending to show that Grasey was the daughter of Matilda, was born about the year 1820, was run off from Kentucky by a son of Mrs. Molly Townsend, against whom Matilda had previously instituted a suit for her freedom, and that the defendants in this suit claimed' by purchase under said Townsend, — offered in evidence a certified transcript of the Kentucky suit, wherein the petitioner claimed her freedom under the deed now in controversy; which suit was commenced on the 4th May, 1831, and was decided in favor of the petitioner. The defendants objected to the admission of this transcript, “ as not being competent evidence against them for any purpose ; ” further, “ that it was not admissible, except as evidence that Matilda recovered a judgment of freedom in tliat suit; ” and “tbat it was not admissible, except as evidence tbat Matilda, at the time of the impetration of the writ, was entitled to ber freedom.” Tbe court overruled eaeb of these objections, and admitted the transcript; “remarking, tbat tbe jury would be instructed as to its effect, when tbe evidence was closed; ” to which rulings of tbe court the defendants excepted.</p> <p>Other objections were made to this transcript, and other questions as to tbe admissibility of evidence were made; none of which, however, require special notice.</p> <p>Tbe court charged tbe jury as follows:</p> <p>“ 1. Tbat tbe deed of Josias "W. Dallam was, under tbe laws of Maryland, valid and effectual to entitle tbe negro Hannah, therein mentioned, to ber freedom at tbe expira-tiop of thirteen years from its date; tbat any child of Hannah, born during tbat interval of thirteen years, would be entitled to ber freedom at twenty-three years of age ; tbat if the jury believed tbat Matilda was tbe child of Hannah, and was born during the said period of thirteen years, she would be entitled to ber freedom at tbe age of twenty-three years; tbat if Grasey was tbe child of Matilda, and was born before Matilda reached twenty-three years of age, she would be entitled to ber freedom at the age of twenty-three, and ber children, born after that time, would be free; and tbat if Grasey was born after Matilda had reached tbe age of twenty-three, then she was born free, and she and all ber children are entitled to their freedom.</p> <p>“ 2. That if tbe jury believed tbat the defendants held the petitioners as slaves under Molly Townsend, then the judgment in favor of Matilda against said Molly Townsend would be evidence against them; that if Grasey was born after tbat judgment, then these defendants are bound by that judgment; but, if she was born before that judgment, then it is not conclusive, but is a circumstance, or part of the chain of evidence in the cause, which the jury will take into their consideration.”</p> <p>The defendants excepted to each one of these changes; and they now assign them as error, together with the rulings of the court on the evidence, and other matters which require no particular notice.</p> <p>— 1. The deed of Josi'&s ¥m. Dallam, even if the original had been duly proved and offered in evidence, should not have been permitted to go to the jury, because it did not comply with the act of 1752. The deed is attested bj only one witness: the law requires, it “shall be evidenced by two good and sufficient witnesses at least.” The language of the law is plain. The object declared is, to provide a uniform and regular mode of manumission. The law points out that mode. Any person, desirous of granting freedom to his slaves, may do so, if the slaves are healthy, capable of maintaining themselves, and under fifty years of age, by writing .under his hand and seal, evidenced by two good and sufficient witnesses at least. This is the general provision, applicable to all cases of manumission: then comes the case of a manumission in futuro. In such case, the act shall be good at the time appointed, if then not in prejudice of creditors, and the slave not above fifty years old, and able to maintain himself. Then come the general provisions, that the instrument of freedom shall be acknowledged before a justice of the peace, who shall endorse the date of the acknowledgment, and then be registered among the records of the county court. There is no intention on the face of the act to make any different formalities, in the cases of a present and future manumission. The same mode of proceeding is required in the two cases. That of future freedom is mentioned by way of parenthesis, and to avoid what might be a difficulty as to the age of the negro; whether it applied to the date of the deed, or to the time when the right to freedom accrued. There is no punctuation in the act, to point out two classes of cases. The act speaks in one sentence, and points out the one mode of proceeding for all cases. And such is the construction of this act by the court of appeals in Maryland. Negro James v. Gaither, 2 Har. & J. 176; 7 G. & J. 262 ; 5 Howard’s R. 72. The act of 1796 on this subject is the same as that of 1752. — See Laws of Maryland; 5 How. It. 72; 4 Crancb C. C. B. 189. The decisions 2 H. & J. and 4 Crancb, were upon manumissions to take effect in futuro.</p> <p>The judicial decisions of a State, upon its own statutes, will be received in the courts of another State, as forming part of the law itself: they are binding and conclusive. 3 Sandf. B. 416; 3 Strob. Eq. 263; 3 Zabriskie’s B. 690 ; 10 Wheat. B. 162; 11 Law Rep. 207; 12 Wheat. B. 153; 4 Pet. B. 127; 5 ib. 161; 6 ib. 291; 1 Brock. R. 539.</p> <p>With regard to the manumission of slaves, the law has uniformly been declared to be, that the provisions of the statute must be strictly complied with. — 4 Harrison’s B. 173 ; 1 Penning. B. 10; 6 Band. B. 561; 1 ib. 15; 6 Munf. B. 191; 5 II. & J. Ill; 2 Leigh B. 300. For it is not the policy of the law to manumit slaves. — 11 Mo. B. 193. And in Maryland, the strictest adherence to the letter of the law has been enforced. — 5 How. B. 72. In this ease, the deed is evidenced by only one witness: and that being so, under the law established in Maryland, the deed offered in evidence was not admissible, and should have been excluded; or, if admitted, the court should have charged the jury, the petitioners were not entitled to their freedom.</p> <p>2. As to the admissibility and effect of Matilda’s suit for freedom in Kentucky: Mr. Bloodgood was no party to that suit, nor was any privity established between him and Mrs. Townsend. The petitioner’s counsel did not undertake to establish it. They promised only to connect the possession of Mrs. Townsend, with that of the party next before Bloodgood: but even that was not done. They did not show whence Bloodgood acquired his possession. They made a show of proof down to a Mr. Clieesborough. Now the .burthen was on them. They did not show that the vendor of Hazard was the man Allen Townsend, who took the negroes from Kentucky. A year after the time of their removal, a man of the same name, but apparently from "Washington county, in Alabama, sold the slaves to Hazard — 1S. & B. 175; 1 Wheat. B. 6; 2 Cranch B. 23. It is conceived the court below erred in permitting the record to be admitted for any purpose, beyond showing the fact that Matilda had in a certain suit recovered a judgment of freedom, or that she was entitled to her freedom at the time the suit was brought. The statement of the testimony contained in the transcript should not have been admitted. It does not appear that the substance of all the witnesses swore was therein contained. — 22 Ala. B. 700. As to the evidence of Drane, Bailey and Smith, it is perfectly clear that all was not there. Their evidence of a particular matter only is stated; and that is given as the conclusion of the party, who prepared the bill of exceptions. No original depositions were produced, nor were copies of such originals produced, No witness was introduced to prove that he had made copies of such depositions, and that the copies were correct. Admitting that, if such had been done, the evidence was competent, still the court has no certainty that it has got copies of their evidence, or a statement of the substance of their evidence. The statement of evidence is not contained in the judgment of the court. We have here nothing but a certificate of the clerk that the transcript contains “ as full a transcript of the records and proceedings as the same remain on file in his office.” This evidence appears only in the bill of exceptions. We don’t know what the law of Kentucky is, with regard to bills of exceptions. It is a subject altogether of statute regulation, not known to the common law. It is prepared for a particular purpose, and for that purpose only forms a part of the record. A statement contained in such a document cannot be made evidence generally; much less can a mere copy of the document be made evidence in another cause, between other parties.</p> <p>3. What is the effect of the deed of 1787 on these petitioners? They were never in the possession of the grantor: there was no proof that they were ever in Maryland. Admitting they came from Kentucky, we do not know what was their status by the laws of that State. 12 Ala. K. 728. Being of African descent, they are to be presumed slaves: it will not be presumed the laws of another State permit emancipations. — 7 Mo. B. 197; 2 Bob. Ya. 58; 11 Mo. 193 ; or that they forbid slavery. 9 Mo. R. 3. Negroes are slaves here, and their emancipation is prohibited. These petitioners claim freedom, under a grant to their grand and great grand mother in 1787. They have been held slaves in this State, the mother since 1831, twenty-five years, and the children, all their lives. The deed gives freedom to all the descendants of Hannah, after they reach twenty-three years of ago. What is the effect of that deed in Kentucky ? We do not know. What is its operation here ? Does the law of this State recognize this mongrel status ? And are its free citizens liable to be defrauded of their property, by stale demands resting on old deeds made in foreign jurisdictions, of which they cannot be advised? As long as property in slaves is recognized, protection should be extended over that property. The right to such property is based on possession. The origin of that possession cannot be inquired into. If it can, the property no longer exists, for it cannot have commenced in right. How long back must the possession have existed ? Or is there no prescription to the claim ? There is a prescription, of necessity, to the general right. Is there none in particular cases ? The general limitation of twenty years should apply. It is no hardship to the slave, for he knows no bettor condition; and the general good of the country demands that the mixture of free and bond should not exist in the community, and certainly that this mongrel state of neither bond nor free should not be tolerated. Such certainly is the declared policy of the State of Alabama.</p> <p>— 1. The Maryland statute does not require any witness at all to a deed of prospective manumission. It evidently provides for two classes of deeds: those which take effect instanter, and those which take effect in fi'turo; and two witnesses are required to the former only. This is the evident meaning and intention of the act; and no plausible objection to this construction, looking only to the act itself, could bé urged. The deed under which the petitioners claim their freedom, providing for prospective emancipation of the slaves named, and being duly-acknowledged and recorded as the statute directs, is sufficient to establish their claim.</p> <p>2. The appellants seek to avoid this construction of the statute, by proof of a different construction by the courts of Maryland, as shown by the reported case of James v. Gaither, 2 Har. & John. 176; and the question is thus presented, whether that decision estops this court from examining and construing the statute for itself. It is admitted, that this court would yield to the authority of the Maryland court, if the very same point was presented in each case, was actually considered'and decided by the former, and was necessary to the decision; but it is insisted, that all these facts must appear, to make such decision conclusive on this court. The courts of one State, in construing the statutes of another, will look to the judicial decisions of the latter, not as constituting an estoppel, but on principles of comity, and on the supposition that the courts of each State are the best judges of the proper construction of their own local laws. Hence, to give weight and authority to such decisions, the very point in issue must appear to have been considered' — -to have been in the mind of the court, and actually decided. This doctrine is held by the courts of Maryland, and by other courts almost universally. — Matthews, Finley & Co. v. Sands & Oo., 29 Ala. 136; 5 Maryland, 489; 16 Howard, 286; 1 Wheaton, 290; 10 ib. 164; 11 ib. 369.</p> <p>What was the point actually considered and decided in the case of James v. Gaither? That case was decided at an early day, when the decisions of the courts were taken down in short hand by the reporters. No opinion appears to have been delivered by the court; only saying, “judgment affirmed.” To ascertain the points actually presented and decided, recourse must be had to the argument of counsel. The point presented by the argument' of the appellant’s counsel was, “ whether the court would-', give a rigid or liberal construction to the act;” he insisting that, though but one witness signed the deed, a liberal construction would allow him to prove by parol that another was actually present, was called on to witness the deed, and did witness it. This position seems to bave been denied by the adverse counsel. All the authorities cited by either were upon the single point, whether such parol evidence was admissible; and the head note of the reporter confines the decision to that single point. There is nothing, then, either in the decision itself, or in the report of it, which can make it conclusive as an authority on the question presented in this case.</p> <p>3. It appears that the negroes had left Maryland before that decision was made, and that the petitioners in this case never were in that State. Can the State of Maryland pass a law, or her courts declare the law, so as to affect property beyond her jurisdiction ? Suppose citizens of Alabama should go to Maryland, and there purchase slaves — slaves in fact under a proper construction of their laws — and bring them to this State; could the courts of Maryland so construe those laws as to set free all these slaves, and bind our courts to follow their construction ? Or suppose, as in this case, a slave is legally emancipated in Maryland, under the proper construction of their existing laws, and is in fact a free man, when he is kidnapped, or comes voluntarily into Alabama; could the courts of Maryland, by an erroneous construction subsequently given to those laws, enslave him, and authorize a citizen of Maryland to come here and seize him ? Or could the freesoil judges of Pennsylvania make a decision to-day, so construing their old statutes of 1700 on the subject of slavery as to set free all the slaves, with their descendants, that have been brought into the southern States for the last fifty or one hundred years ?</p> <p>4. The defendants are strangers to the deed, and cannot be heard to impeach it, although its attestation may be defective. — Smith v. Houston, 16 Ala. Ill; Herbert v. Hanrick, 16 Ala. 599; 7 G-ill & J. 96. They are shown to derive title from Molly Townsend, who, as to these petitioners, was a mere trespasser and wrong-doer, holding under no one.</p> <p>5. The judgment of the Kentucky court, establishing Matilda’s claim to freedom, is in the nature of a proceeding in rem, and binding on the whole world. — 1 Greenl. on Ev. § 525; Smith's Leading Cases, yol. 2, p. 85. But, regarding it only as a proceeding in personam, it is binding’ .on the defendants, wbo are privies of the defendant in .that suit.</p>

Heard before the Hon. James B. ClaeK. This bill was filed by the appellant, against the heirs-at-law of Benjamin Dorman and Franklin Shaw, late partners, both deceased; and sought to obtain a divestiture of the legal title to a house and lot in the town of Greensboro’, which the complainant and his late partner had purchased from the firm of Dorman & Shaw.

Tried before the Hon. Thomas A. Walker. This action was brought by Samuel Tipton, against the administrators of William Robinson, deceased; was commenced on the 26th April, 1853; was revived, on the death of the plaintiff, in the' name of G-eorge ~W. Carmichael, as Ms administrator; and was founded on a special contract between plaintiff and defendants’ intestate, made in August, 1839, which is thus stated in the first count of the amended complaint: “ On the 20th February,…

Heard before the Hon. Wade Keyes. This bill was filed by the appellee, as one of the stockholders of the Gainesville Insurance Company, against the president and directors thereof, alleging that said company was incorporated by an act of the general assembly of this State, approved on the 22d January, 1856, and was organized under the provisions of its charter, by the subscription of the requisite amount of stock, and the election of president and directors; “that on the…

Tried before the Hon. William M. Bkooks. This action was brought by the appellant, against Nicholas Davis, Jr., to recover certain premises in Huntsville, known as “The Grove,” of which the defendant was in possession, and which the plaintiff claimed by purchase at sheriff’s sale under execution against Bartley M. Lowe. The premises in controversy belonged to Dr. James Manning, who died in 1841, devising them to his widow, Mrs. Sophia Manning.

<p>[BILI. IN EQUITY BY BENEEIOIARIES OB TRUST DEED TO ENJOIN SALE OB PROPERTY UNDER EXECUTION AGAINST GRANTOR.]</p> <p>1. Validity of deed of trust for indemnity of sureties. — A deed of trust on slaves, executed by the guardian of several minors under fourteen years of age, who was in embarrassed circumstances, for the indemnity of the sureties on his bond; providing that the property shall remain in the possession of the grantor until the happening of the contingencies on which a sale is authorized; and authorizing the trustee to proceed to sell the property, on the written request of the four sureties, their agents or attorneys, after the grantor had committed a breach of his bond, and had failed to save his sureties harmless, — is void on its face, (Code, § 1550,) as against the grantor’s creditors.</p>

Tried before tbe Hon. JohN Gill SiiouteR. This action was brought by George E. Plant & Co., as partners, against Mary M. Harris, as administratrix of Hartwell S. Harris, deceased, and Elijah Rigby; and ivas founded on a penal bond, executed by said Hartwell Harris on the 1st January, 1850, with said Rigby as his surety, the condition of which was in these words : “ Whereas the above bound Hartwell S. Harris is - keeper of the public ferry across the Alabama river below the…

<p>Appeal from the Circuit Court of Benton.</p> <p>Tried before the Hon. William M. Bhooks.</p> <p>* This action was brought by J esse Clopton, an infant, suing by his next friend, against Eobert Thompson; and was commenced before a justice of the peace. The justice rendered, a judgment by default against the defendant, who afterwards took an appeal to a jury; and the jury having returned a verdict for the plaintiff" the defendant removed the case by appeal to the circuit court, and there pleaded in abatement that he was a freeholder and resident citizen of Tallapoosa county. The action of the circuit court in striking out this plea, to which the defendant excepted, is the only matter now assigned as error.</p>

<p>[BILL IN EQUITY EOR INJUNCTION OE JUDGMENT AT LAW.]</p> <p>1. Trespass by levy of void legal process. — A party who procures a sheriff to levy an attachment which is void on its face, is a trespasser.</p> <p>S. Equitable relief against judgment at law. — A party against whom a judgment at law has been rendered, in an action of trespass, for procuring the levy of an attachment which was void on its face for want of authority on the part of the officer by whom it was issued, cannot obtain relief against it in equity, on the ground that the attachment was not sued out wrongfully or maliciously, but to prevent the apprehended loss of an existing debt; and that the decision of the supreme court, holding such attachment void for want of authority on the part of the officer by whom it was issued, had not then been pronounced, and was contrary to the practice and general understanding of the bench and bar.</p>

<p>[ACTION BT VENDOR ÍOR PRICE OP HORSE SOLD.]</p> <p>1. Admissibility of partner’s declarations as evidence against co-partner. — The declaration of one of the partners in a livery-stable, made during the existence of the partnership, to the effect that a horse purchased by him was bought for the firm, is admissible evidence for the vendor, in an action against the other partner, as survivor, to recover the price of the horse.</p> <p>2. Admissibility of declarations as part of res gestae. — The declarations of the purchaser of a horse, made after the consummation of the purchase, and when the vendor was not present, to the effect that he had won the horse, or had bought him on his own individual account, are not competent evidence against the vendor, in an action brought by him against a third person, as surviving partner of the firm of which the purchaser was a member, to recover the price of the horse.</p>

<p>Appeal from the Circuit Court of Butler.</p> <p>Tried before tbe Hon/JoHN Gill Shorteb,.</p> <p>This action was brought by "William R. Fuller, against William Bean, to recover damages for the false and malicious speaking by defendant of certain words charging-plaintiff with having stolen a sack of salt. The pleas were, not guilty, the statute of limitations of one year, and justification; the last plea being interposed, by consent, after tbe argument to the jury had commenced. On the trial, as appears from the hill of exceptions, the plaintiff proved that the words charged were spoken by the defendant on the 1st August, 1855, and had reference to a transaction which occurred at Claiborne in the year 1832. The defendant offered to prove by a witness, “ that, in 1853, he (witness) told plaintiff to his face that he had stolen a sack of salt, and be (witness) could prove it; and tbat plaintiff said nothing. This occurred after the witness and plaintiff had had a fight. The plaintiff objected to this evidence, but the court permitted it to go to the jury;” to which the plaintiff excepted.</p> <p>“ The defendant then examined a witness, who swore, that he knew the plaintiff’s general character, particularly for honesty, prior and up to August, 1855, and knew it to be bad. Defendant then asked said witness this question : ‘ Do yon know, whether or not the plaintiff) before the speaking of the words by Dean about which you have testified, was or not generally suspected in the neighborhood in which [he] lived of having stolen a sack of salt.’ The plaintiff objected to this question as illegal, unless it was preceded or accompanied by an admission on the part of the defendant that the charge was false; but the court overruled the objection, and allowed the question to be propounded to the witness, without requiring the defendant to make such admission; and the plaintiff excepted. The witness answered, that he was so suspected; to which answer the plaintiff objected, and moved the court to exclude it from the jury; but the court overruled the objection, and the plaintiff excepted. In admitting this evidence, the court stated, that it was admitted only in mitigation of damages.”</p> <p>The defendant introduced several witnesses, who testified, that the plaintiff’s general character, particularly for honesty, prior and up to August, 1855, and as far back as 1882, was bad. This bad character was referred by one of the witnesses, partly, to a charge against him of having “ sworn a lie about the entry of some land in the Choctaw purchase;” and by the others was attributed principally to the charge of having stolen a sack of salt, and partly to another charge of having stolen a five-dolla-r bill. This evidence appears to have been admitted without objection when it was offered; but, after the plea of justification had been interposed, in answer to an argument which plaintiff’s counsel, in his opening speech to the jury, had drawn from the failure to put in that plea, the plaintiff’s counsel moved the court “ to exclude from the jury all testimony in relation to the plaintiff’s bad character subsequent to the year 1832, when the alleged stealing of the sack of salt occurred, and growing out of the alleged stealing of said sack of salt.” The court overruled this motion,. “ and permitted the evidence to remain before the jury in mitigation of damages;” and the plaintiff excepted.</p> <p>“The plaintiff asked the court to instruct the jury, that if they found from the evidence that the plea of justification was untrue, they cannot consider the plaintiff's bad character which had been produced in consequence of the charge of stealing said sack of salt, made prior to the speaking by defendant of the words charged in the complaint, even in mitigation of damages, if they found that the defendant spoke the words charged in the complaint maliciously; which charge the court refused to give, and the plaintiff excepted.”</p> <p>“ The court charged the jury, that they could not look to the proof of the bad character of the-plaintiff, acquired after the alleged stealing of the sack of salt in 1832, and before the utterance by defendant of the charge against the plaintiff, (if they found such bad character to have existed,) in ascertaining the truth or falsity of the plea of justification; but, if they found against the defendant on said plea, then they might look to such bad character, (if they found it existed,) in estimating the damages to which the plaintiff was entitled. To this • charge the plaintiff excepted.”</p> <p>All the rulings of the court to which, as above shown, exceptions were reserved, are now assigned as error.</p>

<p>Attachment against steamboat fob damages caused by collision.]</p> <p>1. Comtiiulionalily of statute giving attachment against steamboat. — The act of January 17, 1814, (Session Acts 1843-4, p. 98,) giving a remedy by attachment against a steamboat, in the nature of a proceeding- in admiralty, for damages caused by a collision, is not violative of any provision of the constitution of this State or of the united States.</p> <p>2. Former recovery and satisfaction. — A recovery by a common carrier, for an injury to goods while in his possession, with satisfaction thereof, is a bar to an action by the owner of the goods for the same injury, provided the' action of the carrier was commenced before that of the owner.</p> <p>S. Demurrer to plea. — Where the sufficiency of a plea in bar depends upon the day on which the suit was commenced, and .neither the plea nor the declaration shows the day, the court cannot, on demurrer, look to the teste of the writ.</p> <p>4. Competency of witness governed by what law.- — In a suit which was commenced before the adoption of the Code, the competency of witnesses is to be determined by the former law.</p> <p>5. Competency of part owner as witness for co-owner. — In a statutory action against a steamboat, under the act of 1844, one of the part owners of the boat having intervened to defend, another part owner, who also joined in the replevy bond, is not a competent witness for the defendant.</p> <p>6. Waiver of objection to attachment and discontinuance. — After a party, who has been allowed to intervene as defendant, has filed the plea of not guilty to the amended declaration, it is too late for him to move to quash the attachment by which the suit was commenced, or to dismiss the proceeding on account of a discontinuance.</p>

<p>Appeal from tbe Circuit Court of Perry.</p> <p>Tried before tbe Hon. JOHN Gill Shoeteb.</p> <p>This action was brought by William McTyer, against John C. Steele, William Hendrix, and William :S. Hanna, as common carriers, to recover damages for tbe loss of fifteen bales of cotton, which were shipped by plaintiff on board of a flat-boat belonging to defendants, consigned to McDowell, Withers & Co. at Mobile. In' consequence of the rulings of the court on the first trial, the plaintiff was compelled to take a nonsuit; which was set aside by this court, at its January term, 1855, and the cause remanded. See the case reported in 26 Ala. 487.</p> <p>One count of the declaration alleged, that the contract for the transportation of plaintiff’s cotton was made with said John C. Steele, acting for and on behalf of himself and the other defendants; and set out the receipt, or bill of lading, which was signed by said Steele, and a copy of which may be seen in the former report of the case. After the remandment of the cause, the defendants Hendrix and Hanna pleaded nov esi factum to this bill of lading; to which plea the court sustained a demurrer, and refused to visit the demurrer on the declaration. To these rulings of the court exceptions were reserved.</p> <p>On the last trial, as appears from the bill of exceptions reserved by the defendants, the plaintiff introduced evidence tending to show that the flat-boat was built near Centreville in Bibb county, under a contract with said Steele, and was paid for by him and the other defendants; that it was brought down the river, when finished, by said Steele, who acted as the master or pilot; that the plaintiff’s cotton was shipped on board of said boat in Bibb county, where other cotton belonging to one Massey was also put on board; that the boat proceeded down the river, and took on board cotton belonging to N. Lockett and J. Nave, at their respective landings on the river in Perry county ; and that it was afterwards run on a log or snag in the river, in Perry county, and sunk. The evidence in relation to the loss of the boat is thus stated in the bill of exceptions: “ The plaintiff proved, that said boat struck the log about 5 o’clock in the evening of the day; that there was room enough on either side of the log for boats to pass; that several witnesses had, for many years, known that there was a log in the river at or about that place; that two pilots, who were introduced as witnesses by him, and who had run on said river for many years, knew of a log at that point iu the river; that one Belcher, a pilot, bad taken down a float-boat safely at about 11 o’clock of that day ; that the river was then falling, and, as he passed the place where defendants’ boat struck the log, he.saw several feet of the top of the log, but could not see the body of it on account of the depth of the 'water ; that Henry Johns, an experienced pilot, took another boat down the river, and passed defendants’ boat on the log while they were trying to save the cotton; that said Johns had known the log for years, and a considerable portion of it was visible above the water when he passed; and that three other boats passed down the river safely, on the day after the disaster to defendants’ boat, passing on the east side of the log. The witnesses stated, that the root of the log caused a ripple in the water, by which its position could be know,n; and that most of the log was covered by the water. The defendants proved, that the place where said boat was wrecked was one of very dangerous and difficult navigation, and was generally known to be so by persons acquainted with said river; that said Steele was a good and experienced pilot, and O’Brien a good bow-oarsman, and both had been engaged in flat-boating cotton down the Oahaba for many years; that said boat had on board twelve good and efficient hands, — eight or nine being about the usual number for managing a boat of that size. O’Brien, one of the oarsmen on said boat, testified, that the boat was well and skillfully managed, and was wrecked on said log by what ho called inevitable accident; that the water ran over the log, and concealed it where it ran over it; that he did not see the log until the boat struck it, and did not know whether Steele saw it, or knew where it was, or even that there was a log in that place; that he saw the boiling of the water, but it did not show how the log lay; that the boiling was at or over the root of the log, some distance from where the boat struck it; that immediately after passing a dangerous place just above said log, an officer on the boat cried out, ‘All safe ; ’ that Steele then gave way on his oar, and immediately afterwards the boat swung around, and struck the log.”</p> <p>Evidence was introduced by the defendants, tending to show that flat-boats, similar to theirs, never carried more than one load of cotton or other produce down the river to Mobile; that after reaching Mobile, they were sold for lumber, or cut up and sold for fuel; “ that it was usual for persons carrying cotton down said river on flat-boats to engage the same before starting, and to take no other cotton, unless they were hailed as they went down, and requested to receive cotton from the banks of the river; that unless the cotton was so engaged, or the manager or owner of the boat was requested to- take it, no cotton was ever taken on board such boats; that the captain or manager of the boat, when hailed, took cotton from the banks, and receipted for it; ” that defendant Hendrix had engaged to take down Lockett’s cotton on said boat, but the cotton of Nave and plaintiff was taken on board without any prior contract; that Hendrix and Hanna were the owners of said hoat, and Steele was only their pilot. The defendants proved by one Marsh, “.that when Steele was going up to Bibb county for the boat, Hendrix told him not to take any cotton until he got down to Lockett’s landing; and then proposed to prove that, in the same conversation, Hendrix stated to Steele that they had a load of cotton engaged at said landing and below it on the river, and that this was the reason why he wished him not to take on any above.” The court excluded this evidence, on the plaintiff’s objection, and the defendant excepted.</p> <p>The defendants offered to prove, that said W. S. Hanna, on the day after the accident to the boat, on being informed of the accident, engaged a steamboat, to go up to the wreck, and assist in saving the cotton; and offered to pay the steamboat $2 per bale for saving and freighting the cotton to Mobile. The court excluded this evidence, on the plaintiff’s objection, “ and would not permit the defendants to prove what price said Hanna had offered the steamboat for her services; ” and the defendants excepted.</p> <p>The defendants introduced several witnesses, who testi-tified to the existence of a custom on the Cahaba river, exempting flat-boats from liability for losses which occur red from dangers of the river; that this exception was sometimes expressed in the bill of lading, and sometimes omitted, — the liability of the carrier being in each, ease the same. On the other hand, the plaintiff introduced several witnesses, who testified that, though they had been engaged in freighting cotton down said river many years, they had never heard of the existence of such a custom, or of any other custom exempting flat-boats from common-law liabilities as carriers. The bill of lading in this case contained no express exception.</p> <p>The court charged the jury as follows:</p> <p>“ That if Hendrix and Hanna were partners, engaged in the business of transporting cotton on flat-boats down the Cahaba and Alabama rivers to Mobile for hire, and had purchased the boat in question for that purpose, and had constituted Steele their agent to receive the boat and navigate it to Mobile as captain; and that said Steele, in that capacity, executed to plaintiff the bill of lading described in the declaration, and received the cotton therein mentioned on board of the boat, to be transported to Mobile as therein stated, — then Hendrix and Hanna were bound by the contract so made by Steele; and if the cotton was not delivered in Mobile, but was lost by the wreck of the boat on the river, under the circumstances detailed by the witnesses, they wTere liable to plaintiff for the same; and that there was not before the jury any sufficient evidence to establish a custom which exempted them from such liability.”</p> <p>To this charge said Hendrix and Hanna excepted, and requested the court to charge the jury :</p> <p>“ 1. That if they believed from the evidence that the boat was well managed up to the time when the cry was made that all was safe, and that it was not then in the power of human agency to avoid the log on which the boat was wrecked, and that said log was concealed, and not generally known to pilots accustomed to run the river, and that there was no evidence to show that said log was known to the officers or hands of the boat, — then the plaintiff could not recover.</p> <p>“ 2. That the plaintiff could not recover, unless the jury were satisfied that there was negligence in the management of said boat, which caused it to run on said log and become wrecked.</p> <p>“ 3. That if they believed from the evidence that the boat, on account of the wrecking of which this action was brought, was a flat-boat, constructed and procured by Hendrix and Hanna for the purpose of being carried to Mobile for a single trip, and had never been used before ; that the cotton which Hendrix and Hanna, the owners, inteuded to transport on said boat, was engaged beforehand by them from the owners thereof; and that there was no evidence to show that the managers of said boat were bound to take any cotton that might be offered to them on their trip down the river, on tender of the payment of freight, — then the defendants were not common carriers, and the law would not hold them responsible as such.</p> <p>“4. That the defendants, under the evidence introduced before the jury, were not common carriers in law.</p> <p>“ 5. That if the jury believed from the evidence that Hendrix and Hanna were the owners of the boat; that Steele was instructed to go up the river, and bring down said boat, but not to take any cotton on board until he got down to Lockett’s gin-house on the river; that said Steele did go up for said boat, and on the way down the river, before reaching said Lockett’s gin-house, took plaintiff’s cotton on board of the boat, and the same was after-wards lost, — then said Hendrix and Hanna were not liable therefor.</p> <p>“ 6. That if Hendrix and Hanna were not engaged in the business of common carriers in the county of Bibb at the time plaintiff’s cotton was taken on their boat, and had engaged a load of cotton for it in the county of Perry; and if said Steele was merely the captain of the boat, and contracted for and received plaintiff’s cotton on the boat in Bibb county, contrary to the instructions of Hendrix and Hanna, — then said Hendrix and Hanna are not responsible, unless they adopted the contract with full knowledge thereof.</p> <p>“ 7. That if there was no proof of a custom, as to the authority of a pilot or master to give receipts binding the owners of the ooats on the Cahaba river, and the defendants Hendrix and Hanna had never allowed Steele to give receipts for them, but always either gave receipts themselves, or sent an agent other than Steele with their boats to give receipts, — then said Hendrix and Hanna would not be bound by the receipt given in this case by Steele.</p> <p>“ 8. That if Steele was simply the pilot of the boat, and Hendrix and Hanna sent him up the river for the boat, with instructions not to take any cotton on board until he had brought the boat down to Lockett’s; and if he was authorized only to take on board the cotton which Hendrix and Hanna had engaged for the boat, but, in opposition to the instructions of Hendrix and Hanna, contracted for plaintiff’s cotton, and received it on the boat, without the knowledge or consent of Hendrix and Hanna; and if it did not appear that they adopted the act, — then they are not liable for the loss or injury to the cotton.”</p> <p>The court refused each of these charges, and said Hendrix and Hanna excepted; and they now assign as error all the rulings of the court, as above stated, to which they reserved exceptions.</p>

<p>[MOTION AGAINST SHERIFF FOR FAILURE TO COLLECT MILITIA FINES.]</p> <p>1. Courts-martial held courts of special jurisdiction, — Under the military code of this State, courts-martial are courts of special and limited jurisdiction; and, consequently, the validity of their proceedings is to be tested by the rales applicable to other courts of limited jurisdiction.</p> <p>2. Jurisdiction of battalion court-martial.- — A battalion court-martial can only try defaulters at battalion musters : it has no jurisdiction to assess a fine against a person for refusing to accept an appointment as captain, and neglecting to fill vacancies in his company by election or appointment; nor for his failure to attend in person, and neglecting to order the defaulters of his company to attend, the court-martial by which the fine is imposed; nor for his failure to present to the court-martial, or to his superior officers, a muster-roll of his company.</p> <p>3. Jurisdiction of circuit court as to amount. — A motion against a sheriff, for failing to collect a fine assessed by a court-martial, cannot be made in the circuit court, when the amount of the fine is less than fifty dollars.</p>

<p>Appeal from tbe Circuit Court of Talladega.</p> <p>Tried before tbe Hon. E. W. Pettus.</p> <p>This action was brought by Tbos. G-. Fleming, against Joseph M. Roberts, to recover damages for the defendant’s breach of warranty of the soundness of a slave, named Frances, bought by plaintiff from defendant in December, 1858. The bill of sale for the slave was in the usual form, recited a consideration of $1000 as the price, and contained a warranty both of soundness and title, in the usual form.</p> <p>Before entering on the trial, as appears from the bill of exceptions, the defendant moved the court to suppress the depositions of Dr. E. D. Connor and William G. Lancaster, which had been taken on interrogatories and cross-interrogatories. The specified grounds of objection to each deposition were, — “1st, that the commissioner does not certify the manner of taking said deposition ; 2d, because said commissioner does not certify that said witness was first sworn by him to speak the truth, the whole truth, and nothing but the truth; and, 3d, because said commissioner does not certify that he reduced the answers of the witness to writing, or caused it to be done by the witness himself or some other impartial person, as near as may be in the language of the witness.” The final certificate attached by the commissioner to each deposition was the same, and was in the following form: “By virtue of the commission hereto annexed, I have this 7th October, 1854, at the office of Clarke & Terrell, in the town of Dayton in said county, caused the above named E. D. Connor,” [or Wm. G. Lancaster,] “the witness in said commission named, who is personally known to me, to come before me; who, after being duly sworn, deposed as set forth above in his answers to the annexed interrogatories; that his said answers, as above set forth, were reduced to writing, read over to, approved, and signed by said witness in my presence. Given under my band and seal,” &c. The- court refused to suppress either deposition, and the defendant excepted.</p> <p>Dr. Connor testified to his examination of the slave in controversy, about six weeks after plaintiff’s purchase of her, and to the diseased condition in which he then found her; and, in a portion of his answer to the third interrogatory, used this language: “ Were I not a medical man, I would not have her, as the medical bill for attention to her would exceed the profit she could render her owner.” To each portion of this answer the defendant objected, and moved the court to exclude it from the jury. The court suppressed the italicized portion, but refused to suppress the remaining portion; "and todhis the defendant excepted.</p> <p>After the argument to the jury had commenced, and during the closing argument for the plaintiff, “it was suggested by the court that, under the pleadings as they then stood, the plaintiff' could not recover the purchase-money, as upon a rescission of the contract.” The plaintiff then asked leave to amend his complaint, by inserting the common counts; to which the defendant objected, and also excepted to the overruling of his objection and the allowance of the amendment. After the amendment of the complaint by the addition of the common counts, the defendant demurred to it, “ on the ground that the common counts could not be joined with a count on a contract on which a special breach had been assigned.” The court then granted leave to the plaintiff to withdraw his amendment, and it was accordingly withdrawn; to which also the defendant excepted.</p> <p>The court charged the jury as follows: “ That if they believed defendant sold to plaintiff the slave mentioned in the bill of sale, and warranted her to be sound; and that said slave was unsound at the time of the sale, and, by reason of such unsoundness, was of no value; and that plaintiff, after the sale, but before the bringing of this suit, had expended a reasonable and proper amount of money for necessary care and attention to said slave,— then plaintiff was entitled to recover what would have been the value of said slave, if sound, at the time of the sale, with, interest thereon from the day of sale to the ■present time; and also the amount so expended for reasonable and proper charges for necessary care- and attention to said slave, with interest jthereon from the time of payment.”</p> <p>The defendant excepted to that portion of this charge “ which allowed plaintiff to recover for money paid for care and attention to said slave,” and requested the court 4to instruct the jury, “ that if said slave was of no value at the time of the sale, the measure of damages would be, the value of the slave if she had been sound, with interest thereon up to the present time; and that the plaintiff in such case, could not recover for any expenses incurred in care and attention to herwhich charge the court refused to give, and the defendant excepted.</p> <p>The errors assigned embrace all the rulings of the court to which exceptions were reserved.</p>

<p>[action by purchaser por breach op covenants contained in deed.]</p> <p>1. Breach of covenant at law. — A purchaser of laud, with full covenants of warranty, is entitled to recover, at law, for money paid by him to remove a paramount equitable title existing at the time of the conveyance.</p> <p>2. When outstanding equitable title constitutes breach of covenant. — A purchaser for valuable consideration, without notice of an outstanding equitable title, cannot, on purchasing such equitable title, recover the amount paid from his vendor; whether he could recover, if he had notice of the equitable title at the time of his purchase, but his vendor was an innocent purchaser without notice, quaere ?</p> <p>3. Judicial notice of public lands. — It is a historical fact, of which the courts of this State are bound to take judicial notice, that all the lands in Franklin county are held under the government of the United States.</p> <p>4. Variance. — Under a complaint alleging the purchase by plaintilf of an outstanding equitable title in several persons, for which he seeks to recover damages from his vendor, a recovery cannot be had on proof of the purchase of such title from one of the persons named.</p> <p>5. Admission of fact and law. — The existence of an outstanding equitable title to land in a third person may bo proved by a party’s parol admission.</p>

Appeal fro.ru the City Court of Mobile. Tried before the Hon. Ales. McKlNStey. The appellees in this- case, having obtained two judgments against Charles H. Bostwick, at the November term, 1854, of said city court, amounting together to nearly $600, caused a garnishment to be thereon issued and served on Caleb Price, as the debtor of said Bostwick. The garnishee appeared, in answer to the summons, filed a written answer, and afterwards answered orally in open court.

Tried before the lion. Ales. McEinstry. This action was brought by the appellees, to recover damages for the loss of 134 bales of cotton, part of 198 bales, shipped by them from Mobile to New Orleans per steamboat Helen, consigned to Hugely, Blair & Co., and destroyed by fire while on the wharf at the lake end of the Jefferson and Pontchartrain railroad about eight miles from the city of New Orleans. It is the samepase which is reported in 27 Ala. 77.

<p>Appeal from tbe Circuit Court of Pickens.</p> <p>Tried before tbe Hon. JohN E. Mooee.</p> <p>This action was brought by the appellants, as partners, against tbe administrators of William M. Gilkey, deceased, as one of the partners in the late firm of Gilkey & Davis. The original complaint was, in substance, as follows : “ The plaintiffs claim of the defendants, as administrators as aforesaid, the sum of $108 10, due on a bill of exchange which was drawn by one John Young, on the -of-, for that amount, upon the late firm of Davis & Gilkey, (one of whom was defendants’ intestate,) and accepted by them, payable to J. L. Shotwell, on the 15th April, 1849; ” also, “ the sum of $88 22, due on a bill of exchange drawn by one A. S. Horton, on the-day of-, for that amount, on the firm of Davis & Gilkey, and accepted by them, payable to J. L. Shotwell & Co., on the 10thMarch, 1849 ; ” also, “the sum of $100, due on a bill of exchange drawn by one Joel Glass, on the -day of --, for that amount, on the firm of Davis & Gilkey, and accepted by them, payable to J. L. Shot-well & Co., on the 15th March, 1849; ” also, “ the sum of $40 52, due on a bill of exchange drawn by one S. K. Simmons, on the-day of-, for that amount, on the late firm of Davis & Gilkey, and accepted by them, payable to J. L. Shotwell & Co., on the 15th March, 1849;” also, “the sum of $138 88, clue on a bill of exchange drawn by one T. G. Sheppard, on the-day of-, for that amount, on the late firm of Davis & Gilkey, and accepted by them, payable to J. L. Shotwell & Go., on the 1st March, 1849 ; all of which said bills of exchange, with the interest thereon, are now due and unpaid. The plaintiffs also claim of the defendants $132 76, for so much money had and received from the said plaintiffs, to the use of said defendants, before the 30th March, 1847; ” also, “the sum of $608 48, for money had and received from the plaintiffs, to the use of said Davis & Gilkey, before the 1st May, 1849; ” also, “ the sum of $6J38 48, on an account stated between plaintiffs and defendants’ intestate, as a member of said firm of Davis & Gilkey, on the 7th June, 1849; all of which sums of money, with the interest thereon, are now due and unpaid.” ' N</p> <p>An amended complaint was afterwards filed, by leave of the court, which was in these words :</p> <p>“ The plaintiffs, late partners, &c., as aforesaid, claim of the defendants, administrators as aforesaid, the sum of $608 48, with interest thereon, for this : On (t-o-wit) the 24th November, 1848, the plaintiffs, under the firm and style of J. L. Shotwell & Co., were indebted to a certain mercantile firm of Coffin & Griggs, in the sum of $590 57, by promissory note, dated Mobile, March 27, 1847, payable twelve months after date to said Coffin & Griggs, negotiable and payable at the Rank of Mobile; and, being so indebted, plaintiff's delivered to defendants’intestate, said William M. Gilkey, on the 24th November, 1848, certain claims, commonly called drafts, then in the possession of and belonging to plaintiffs, that is to say: ” (describing the drafts as in the original complaint, and adding “ one other note for $68 65, made by Mrs. Lucy Howard, and payable at the office of said Davis & Gilkey, March 1st, 1849 ; ”) “and defendants’ intestate then and there received said claims, and promised to collect and apply the same to the payment of plaintiffs’ said note to said Coffin & Griggs. And plaintiffs aver, that said Gilkey, of tbe firm of Davis & Gilkey, was and is defendants’ intestate, and was liable to pay said drafts as they respectively became due, and then and there promised plaintiffs to pay tbe same at maturity, and, on said 24th November, 1848, the day he received said drafts, promised plaintiffs to collect and apply the same to the payment of plaintiffs’ said note to Coffin & Griggs. And plaintiffs further aver, that John H. Glass and Mrs. Lucy Howard were solvent and able to pay said notes on them respectively; that defendants’ intestate, when he received the same, promised plaintiffs to collect the same, and to apply the money to the payment of said note to Coffin & Griggs; that said intestate, for collecting said claims, and applying the same as aforesaid, was to receive a reasonable reward, to be paid to him by said plaintiffs, and his said promises were made in consideration of said reasonable reward, which plaintiffs promised to pay him at the time his said promises were made; that said intestate, at the time said drafts became due, received the money on the same, and also received the money on said notes; yet said intestate, not regarding his said promises, did not apply said money to the payment of said note to Coffin & Griggs, nor did he ever pay the same to plaintiffs, nor have said defendants, as his administrators, since his death applied said money to the payment of said note, nor paid the same to plaintiffs, although often requested by plaintiffs so to do,” &c.</p> <p>The defendants demurred to the amended complaint, “in short by consent,” on the following grounds : “ 1st, because the complaint shows the right of action to be in Coffin & Griggs, and not in the plaintiffs: 2d, because the complaint is double, and shows a misjoinder of causes of action; and, 3d, because said amended complaint discloses a cause of action requiring the assignment of a special breach, which cannot be united with any of the causes of action in the original complaint.” The court sustained the demurrer, and, on the plaintiffs’ declining to amend, rendered judgment for the defendants; and its ruling is now assigned as error.</p>

IN the matter of the last will and testament of Joseph A. Blakoy, deceased, which was propounded for probate by Henly G. Sneed, one of the executors therein named, and contested by the appellants. On the day appointed for the trial of the contest, the court allowed the proponent to dismiss his application ; to which the contestants excepted, and which they now assign as error.