Volume 32 — Alabama Reports

[BILL IN EQUITY EOR REDEMPTION OP REAL ESTATE.] Appeal from the Chancery Court of Marengo. Heard before the Hon. James B. Olaek. The bill in this case was filed by the appellant, and sought to redeem certain lands which had been sold under execution at law against one James McNaughton.

<p>[BILL IN EQUITY FOR SETTLEMENT OF PARTNERSHIP.]</p> <p>Appeal from the Chancery Court of Eranklin.</p> <p>Heard before the lion. A. J. Walkee.</p> <p>This bill was filed by John Prewitt and Richard Prew-itt, the appellees, against Argy L. Garner, and sought a settlement of partnership accounts relating to a plantation and slaves, which the three parties had bought- as partners, a division of the property, &e. The defendant, in his answer, admitted the existence of the partnership, and averred his willingness to enter into a settlement. The plantation and negroes were bought on a credit; the defendant was the managing partner, and had control of the plantation; and all the questions in the case grew out of the matters of account respecting the expenses of the plantation, the proceeds of the crops, &c. The bill was filed on the 6th February, 1852, and the defendant’s answer on tbe 2Bcl March next thereafter. At a special term, held on the 24th March, 1852, a receiver was appointed, who was authorized to take charge of all the partnership property, to manage the plantation business, and to collect the debts due to the firm. At the May term, 1853, “ on motion of the parties, aud by consent,’' a reference to the master of the matters of account was ordered; and it was also ordered, “ by agreement of the parties, that the cause be further heard at an extra term of the court to beheld on the second Tuesday in'December, 1853.” At the special December term, it was ordered, “ by agreement of the parties, that the cause be tried, on the coming in of the master’s report, at any time that will suit the convenience of the chancellor.” At the May term, 1854, the master’s report having been filed, the cause was “submitted for decree, upon bill, answer, pleadings, proof, master’s report, exceptions thereto, and exceptions to the testimony; ” and it was agreed that the chancellor might render his decree in vacation. At the same term, the parties entered into a written agreement respecting “the settlement of their partnership matters involved in said cause, and particularly with reference to the sale of the partnership property; ” which, “ with the sanction of the chancellor,” it was agreed, should “constitute a part of the decree.”</p> <p>The chancellor rendered his decree on the 3d November, 1854; incorporating in it the written agreement above referred to, and directing a sale and division of the partnership assets in accordance with its terms; deciding all the exceptions to testimony, as well as the numerous exceptions to the master’s report; ordering a new reference to the master, to state an account between the parties on the principles settled in the decree; and directing that all the property should remain in the custody of the receiver, until the sale and division by the master pursuant to the terms of the written agreement of the parties. Under this decree, the parties made a division among themselves of the notes and other assets of the firm, which is particularly described in the opinion of the court; and the lands and slaves were sold by the master. At the May term, 1855, the sale and division were reported to the court, and confirmed by it; and the final decree in the cause was then rendered.</p> <p>On the 31st March, 1857, the respondent sued out an appeal from this decree; and he here assigned as error the ruling of the chancellor on several of the exceptions to the master’s report, as well as in the rendition of the final decree, and in the taxation of costs. A motion was submitted by appellees to dismiss the appeal, on the ground that it was barred by the statute of limitations; or, in the event the motion to dismiss should be overruled, to strike out the several assignments of error, on the ground that the decree has been executed by the parties, and the appellant cannot now place the appellees in statu quo.</p> <p>1. 'The decree rendered at the November term, 1854, settled all the equities involved in the case, and was final in its character. — 2 Ala. 170, 573; 6 Ala. 141; 13 Ala. 681; 16 Ala. 793; 24 Ala. 697. That decree being final, the right to have it revised on error is limited by the statute (Code, § 3040) 'to two years from its rendition. That it is the decree sought to be revised is shown by the fact, that most of the assignments of error are predicated upon it. If any error intervened, it was in the matters determined by that decree. If that decree was final, it is not open to revision on the present appeal. 7 Paige, 87, 90; 2 Paige, 413; 3 Paige, 470; 4 Paige, 567; 2 Har. & G. 191, 246.</p> <p>2. The record shows that the parties have settled their litigation by agreement; and the rule is settled, that this court will not, in such case, investigate the rights of the parties, nor will it revise a decree by consent. — Emerick v. Armstrong, 1 Ohio, 233; Hargraves v. Lewis, 7 Geo. 110 ; Atkinson v. Manks, 1 Cowen, 709 ; 3 Edw. Ch. 410; 7 Texas, 184, 194.</p> <p>1. There was no final decree, settling.all the equities be tween the parties, until the May term, 1855. The only matters in controversy were matters of account, respecting the items with which the respondent was chargeable, and the credits to which he was entitled; and some of the most important of these items were not disposed of until the May term, 1855. The decree rendered at the November term, 1854, left open two of the most complicated items of the expense account, and referred .them to the master to be stated on proof. The duties required of the master, under this reference, were of a judicial character, and not simply ministerial; and each party had the right to have his action revised by the chancellor. There were no equities to be settled in the case, except in relation to these disputed items of account; and that cannot be considered a final decree which leaves any of them open and undetermined, to abide the decision of the court upon evidence not yet taken. That the decree of the November term, 1854, has not the requisites of a final decree, see the following cases: Bank 'of Mobile v. Hall, 6 Ala. 141; 3 Yerger, 157; 3 Humph. 449; 8 Mis. 53; 12 Gill & John. 275; 14 "Wendell, 539; 15 Peters, 287,; 1 Hill’s (S. G.) Ch. R. 445; 1 Equity Digest, 63, §§ 172, 174; 11 Gill & John. 362; 2 H.'& M. 558, 595; 1 Leigh, 34; 6 Leigh, 378.</p> <p>2, The several agreements into which the parties entered, as shown by the record, relative to the sale and division of the property, &c., were intended to relieve the court of the labor which w'ould have been necessary' before a formal settlement and distribution could have been made, and cannot be considered an implied waiver of the appellant’s right to review on appeal the errors and irregularities shown in the chancellor’s decree. It was perfectly competent for the parties, after the rendition of the decree deciding their respective rights, thus to relieve the court of the ministerial duty of distributing the funds in court. JSx parte Poster, Rice’s Equity R. 17; Lashly v. Hogg, 11 Yesey, 602. The rule of practice established by several decisions of, this court, refusing to consider assignments of error by a plaintiff who has coerced satisfaction of a judgment at law, has no application to a chancery case, in which, the decree has been voluntarily executed by the parties. — Tarleton v. Goldthwaite, 23 Ala. 346; McCreeliss v. Hinkle, 17 Ala. 459; Caruthers v. Ross’ Heirs, IT Ala. 821; Logan’s Heirs v. Logan’s Adm’r, 13 Ala. 659Dyett v. P.endleton, 8 Oowen, 325; Clowes v. Dickinson, ib. 328. There is a plain and marked distinction between this case and those in which the rule now invoked has been applied. In all the cases in which the court refused to hear errors assigned, the plaintiff below was the appellant, and had received or coerced satisfaction of the decree which he sought to have reversed. Here, the defendant below is the appellant, and he has voluntarily paid the decree against him which he complains of as erroneous. He was bound to. pay that decree, either voluntarily or compulsorily. If he had paid it under execution, he certainly would not thereby have lost his right to have it revised on error, though the plaintiffs might have been estopped from alleging error in it. No reason is perceived why the voluntary payment of a decree, to save the costs incident to the collection of the money by execution, should be construed an implied waiver of the right of appeal, which would have been unaffected by apayment under legal process.</p> <p>3. But, if the agreements of the parties should be held, to conclude the appellant from assigning error in the decree, he then offers to restore all that he has received under them, and asks that the cause may be continued in court to allow him an opportunity oí doing so.</p>

<p>[TROVER FOR CONVERSION OF SLAVE.]</p> <p>Appeal from the Circuit Court of Autauga.</p> <p>Tried before the Hon. C. “W. Rapiek.</p> <p>The original summons and complaint in this case were in the name of “Lewis Houser, guardian of Mary A. Felkel, who sues for the use of the said Mary A. Felkel; ” but at the spring term, 1856, on motion of the plaintiff, the complaint was so amended as to make Mary A. Felkel, “ a minor, who sues by her next friend John A. Houser,” the plaintiff; the minute entry reciting that the defendant excepted to the allowance of the amendment. At the. October term, 1857, as the bill of exceptions recites, when the cause was called for trial, the plaintiff’s marriage with one A. W. Sinclair was suggested to the court, and leave was granted to her to proceed in the name acquired by her marriage. “ The pleadings in the cause were then made up, by agreement between the counsel of the parties, that the defendant might, under the plea of not guilty, give in evidence any matter that might be specially pleaded, and that the plaintiff might also give in evidence any matter that might be replied. The jury were then selected, and thereupon the defendant moved the court to strike the cause from the docket,” on account of the allowance of the amendment above mentioned. The granting of this motion,to which the plaintiff excepted, is now assigned as error.</p>

<p>1. Amendment of complaint. — In an action against an administrator, on a promissory note described as “ made by him,” the complaint may be amended, after the argument to the jury has commenced, by striking out the word “ him,” and inserting in lieu thereof the name of his intestate.</p>

<p>1. Sill of particulars. — An objection to the sufficiency of a bill of particulars, (Code, § 2233,) when made on the trial, comes too late.</p> <p>2. Proof of account. — To entitle a party to a recovery on an open account, it is not necessary that he should prove the specific articles which constitute each item, if the correctness of the account is otherwise sufficiently established.</p>

[ACTION ON PROMISSORY NOTE GIVEN FOR RENT OF FERRY.] Appeal from tbe Circuit Court of Dallas. Tried before tbe Hon. Robt. Doughehty. Tbe complaint in this case was in these words: “ Anselm L. Haden, adm’r, and Caroline M. Haden, adm’x, vs. Wiley Milton, John D. Nance, David Weaver, and Wm.

[action on promissory note by assignee against assignor.] Appeal from the Circuit Court of Marengo. Tried, before tbe Hon. E. W. Pettus. The complaint in tbis case was as follows: “Alexander Fournier') The plaintiff claims of the vs. . V defendant the sum of one hun-J. M. Black.

[action for breach of title-bond.], Appeal from the Circuit Court of Perry. Tried before the Hon. E. W. Pettus.

[BILI, IN EQUITY FOB RESCISSION OP CONTRACT ON GROUND OP FRAUD.] Appeal from the Chancery Court at Mobile. Heard before tbe Hon. Wade Keyes. As the material facts are stated in the opinion of the court, it is not necessary to repeat them here.

[ACTION ON CHARTER-PARTY FOR BREACH BY CHARTERER Appeal from tlie City Court of Mobile. Tiled before the Hon. Alex. McKiNSTry.

[bill in equity to unjoin judomext at law.] Appeal from the Chancery Court at Montgomery. Heard before the lion. Wade Keyes. ' This bill was filed by Edmund A. Pearce, the appellant, who was a citizen of Macon couuty in this State, to enjoin a judgment which Charles Ford had recovered against him, in the district court of the United States held at Montgomery, as the debtor of the “Winter IronWorks,” a corporation chartered by the legislature of this State.

[DETINUE FOB SLAVES.] Appeal from, the Circuit Court of Tallapoosa. Tried before the Hon. JoHN Gill Shorter.

[BILL IS EQUITY TO HATE ABSOLUTE COSVEYAXÜE DECLARED A MORTGAGE.] Appeal from tbe Chancery Court of Jackson. Heard before the Hon. A. J. Walker. Held: that the transaction between the parties, as shown by the evidence, was a conditional sale, and not a moi-tgage. He therefore dismissed the bill, and his decree is now assigned as error.

[DETINUE FOE. SLATES BY HUSBAND AGAINST WIFE’S TRUSTEE.] Appeal from the Circuit Court of Madison. Tried before the Hon. Thos. A. Walker. This action was brought by Geo. W. Thompson against John C. Drake, to recover certain slaves which the plaintiff had conveyed to said Drake, as trustee of Mrs. Francis Thompson, who was plaintiff’s wife.

<p>[action at law by ward against guardian.]</p> <p>Appeal from the Circuit Court of Talladega.</p> <p>'Tried before the Hon. Johk Gill Shorxee..</p> <p>This action was brought by the appellant, to recover the value of the services or hire of a slave belonging to him, which was alleged to have been in the defendant’s possession, from the year 1838 to the year 1846, both inclusive. The defendant pleaded the general issue, payment, and set-off; and also two special pleas, which averred, iu substance, that the slave went into his possession by virtue of his appointment by the • orphans’ court of Sumter, in March, 1836, as the guardian of plaintiff; who was then a minor, and that there never had been a settlement of his guardianship. The plaintiff demurred to these special pleas, but his demurrer was overruled. The evidence adduced on the trial supported these pleas; but it further appeared that the defendant had never returned any inventory of the slave as the property of his ward, nor made any return to the court of the manner in which he had disposed of him, nor hired him out. The plaintiff reserved several exceptions to the rulings of the court on the evidence, but the opinion of the court renders it unnecessary to notice them.</p> <p>The court' charged the jury, “ that if the defendant received or held the said slave as his own, the plaintiff would be entitled to recover; but, if they believed from the evidence that the defendant, at the time he took possession of the slave, was the plaintiff’s guardian, and that he received and held the slave as guardian, then the plaintiff' could not recover in this action; ” also, “ that if they believed from the evidence that the defendant was appointed plaintiff’s guardian at the time shown in the transcript read in evidence, and that the slave went into his possession after that time, then the law would presume, in this action, that he received him as guardian.” The plaintiff excepted to these charges, and he now assigns them as error, together with the rulings’ of the court on the pleadings and evidence.</p>

[actions on policies op insurance on steamboat.] Appeal from the Circuit Court of Mobile. Tried before the Hon. C. W. Rapier. These two actions were brought by Jolm H. Goodman, against the appellants ; were founded on policies of insurance on the steamboat Jenny Bealle, and were tried together by consent. The policy of the Fulton Insurance Company was effected by said.John H. Goodman, “for account of himself; ” was for $5,000, and was dated the 4th July, 1853.

[BILL IN EQUITY BOB SETTLEMENT OP PARTXEKSIIIP ACCOUNTS.] Appeal from the Chancery Court at Wetumpka. Heard before the Hon. James B. Clahe. Held: that the bill would have been dismissed for want of equity, or on account of the staleness of the demand, if the defendant had interposed either defense; but that he had waived the plea of the statute of limitations, by averring in his answer his readiness and willingness to account.

[IN SUTTEE OE CONTESTED SHERIFF'S ELECTION.] Appeal from tbe Circuit Court of Coosa. Tried before tire Hon. C. W. Rapieb,.

[creditors* bill in equity to set aside deed as fraudulent.] Appeal from the Chancery Court at Tuskaloosa. Heard before the Hon. James B. Clakk.

{BILL IN EQUITY FOR REDEMPTION OF MORTGAGED LANDS SOLD UNDER DEGREE OF FORECLOSURE IN CHANCERY.] Appeal from the Chancery Court of Mobile. Heard before the Hon. Wade Keyes.

[COVENANT FOR BREACH OF'TITLE-BOND.] Appeal from the Circuit Court of Benton, now Calhoun county. Tried before the Hon. Thos. A. Walker.

[ACTION AT LAW BETWEEN CO-SURETIES FOR MONET HAD AND RECEIVED.] Appeal from the Circuit Court of Dale. Tried before the Hon. C. W. Rapier. This action was brought by Thomas Robinson against Esau Brooks. The record contains nothing but the bill of exceptions and the judgment'of the court; the former stating that, by consent of parties, the cause was tried without the summons and complaint, which had been lost or mislaid.

[BILL IS EQUITY FOB SETTLEMENT 03? ADMINISTRATION.] Appeal from tbe Chancery Court of Dallas. Heard before the Hon. James B. ClaRK.

[TRESPASS BY OWNER AGAINST HIRER OS' SLATE.] Appeal from the Circuit Court of Autauga. Tried before the lion. E. W. Pettus. This action, which was commenced in September, 1866, was brought by Dixon S. Hall, against Elias B. Goodson, to recover damages for injuries inflicted by defendant on a slave named Simon, the property of the plaintiff.

[BILL IN EQUITY FOR SETTLEMENT OF ADMINISTRATION.] Appeal from the Chancery Court of Franklin. Heard before the Hon. JohN Fostee.

<p>1. Executor not chargeable with devastavit at suit of legatee who concurred in it. Where an executor, acting upon an erroneous construction of the testator’s will, which he, in common with all the legatees, honestly believed to be the true construction, allotted a share of the slaves to the widow, — held, that a legatee, who was present at and assented to the allotment, could not hold the executor liable as for a devastavit.</p> <p>2. What is assets in the hands of executor. — "Where the testator, having a life-estate in certain slaves, purchased an interest in the remainder, and took the conveyance in the name of his children, his executor is not chargeable with the hire of the slaves after the termination ot the life estate.</p> <p>3. Husband’s interest in wife’s personal property in possession .■ — If a widow, having a life estate in slaves, marries a second time, her interest vests in her husband at common law; and on his death, living his wife, is assets in the hands of his executor.</p> <p>4. Estoppel cn pais, — Mere silence, or an omission to assert one’s right, does not constitute an estoppel, when resulting from ignorance of that right.</p> <p>5. Construction of mil as to advancements. — A provision in a will, executed several years before the testator’s death, directing that his elder children, then at school, should account for the moneys that might be advanced for their education, does not render them liable for moneys advanced by the testator himself in his lifetime.</p> <p>6. Debts chargeable equally on legacies. — Where no fund is provided for the payment of debts, each legatee is bound to contribute ratably to their discharge.</p> <p>7. Depress trusts not affected by statute of limitations or laches. — Neither the statute of limitations, nor the doctrine of laches, can be invoked by an executor to shield himself from an account for property held under an express and acknowledged trust.</p> <p>8. Jurisdiction of equity oner foreign executors. — A foreign executor, who, without making a settlement of his trust, has removed to this State, and become domiciled here, may be sued by a legatee in the chancery courts of this State, for an account and settlement of his administration and the recovery of a legacy.</p> <p>9. When legatees or their personal representatives are necessary parties. — When a legatee files a bill against a foreign executor, who has removed to this' State without settling his trust, seeking an account and settlement and the recovery of a legacy, all the other legatees who are interested in the fund are necessary parties to the bill; and if any one of them has died, his personal representative must be brought before the court, or a sufficient excuse for the omission must be shown.</p> <p>10. Effect of nonjoinder of parlies. — The chancellor should not dismiss a bill on final hearing, on account of the non-joinder of necessary parties, without affording the plaintiff an opportunity to amend.</p>

[BILL IN EQUITY BY FOREIGN CREDITOR TO ATTACH BANK-STOCK OF FOREIGN INSOLVENT DEBTOR.] Appeal from the Chancery Court of Madison. Heard before the Hon. JOHN FosteR. This bill was filed by Hugh Wilson, and sought to subject fifty shares of the capital stock of the Northern Bank of Alabama, at Huntsville, which was standing in the name of Matthews, Finley & Co., to the payment of a debt of $6,500 due to him from them.

[DETINUE FOR SUAVES.] Appeal from the Circuit Court of Barbour. Tried before the Hon. John G-ill SiioRteR. This action was brought by Henry B. Boynton, against John M. Sims. In the summons the plaintiff was described as “ Henry B. Boynton, administrator de bonis non of the estate of James A. McEwen, deceased;’’ while the complaint was in these words : “ Henry B. Boynton, adm’r,'j The plaintiff claims of defendant, the follow-slaves, to-wit : a news.

[DBTIN0B H>K SLAVES.] Appeal from tbe Circuit Court of Lowndes. Tried before tbe Hon. JohN Gill Shorter.

[bill in equity to enforce partnership agreement.] Appeal from the Chancery Court at Talladega. Heard before the Hon. James B. ClaRK. This bill was filed by Jesse W. Garth, against the executor, widow and heirs-at-law of Solomon C. Smith, deceased; and sought to establish a partnership contract between plaintiff and said Smith, in certain lands subject to entry and sale at Lebanon, and to have an account and settlement of the partnership matters.

[ACTION AGAINST MASTER WORKMAN FOR BREACH OF CONTRACT.] Appeal from tbe Circuit Court of Madison. Tried before the Hon. ¥m. S. Mudd. This action was brought by the administrator of H. II.

[ASSUMPSIT ON NOTE GIVEN POR PURCIIASE-MONET OP SLAVE.] Appeal from the Circuit Court of Perry. Tried before tire ITon. RobeRt Dougherty. This action was brought by Walker Reynolds, against W. W. Ward and another, and was founded on a promissory note for' f800, dated the 5th April, 1847, and payable on or before the 25th December next after date.

[ASSUMPSIT POE MOSEY PAID.] Appeal from the Circuit Court of Perry. Tried before the Hon. Bobt. Dougherty. This action was brought by James G. Evans, the appellant, against the administrator of Thomas Billingsley, deceased, to recover certain moneys alleged to have been paid by the plaintiff for the intestate in his life-time, and at his special instance and request; and was commenced in April, 1852.

[CREDITOR'S BILI, TO REMOVE CLOUD OVER TITLE TO HEAL ESTATE.] Appeal from the Chancery Court of Dallas. Heard before the Hon. James B. Claeií. This bill was filed by John N. Smith, against Alanson Saltmarsh, audthe heirs-at-law and administrator de bonis non of William Rutherford, deceased.

[BILL IS EQUITY EOR RESCISSION 01? CONTRACT.] Appeal from tbe Chancery Court at Mobile. Heard before the Hon. Wade Keyes. This bill was filed by Hiram 33.

[BILL IN EQUITY TO OPEN SETTLEMENT OP PARTNERSHIP ACCOUNTS.] Appeal from the Chancery Court at Montgomery. Heard before the Hon. Wade Keyes. This bill was filed by C. C. Billingslea, against Robert J. Ware and Thomas M. Cowles, and sought to open a settlement of partnership accounts between the parties, and to cancel a mortgage given by complainant to secure the payment of his notes for the balance found against him on that settlement.

<p>[BILL IN EQUITY FOR REFORMATION OF SHERIFF’S DEED.]</p> <p>Appeal from the Chancery Court of St. Clair.</p> <p>Heard before the Hon. James B. Clare.</p> <p>This bill was filed by John Martin, the appellant, seeking the reformation of a sheriff’s deed in the description of the land, and an injunction of an action at law instituted by the defendant in the judgment for the recovery of the land. The land was sold in 1838, under a judgment of the circuit court against one John Hollar, and was purchased by the plaintiff, who afterwards sold and conveyed to Eendall Bobertson. The chancellor held the deed void, and therefore incapable of reformation, because the judgment against Hollar was predicated on the levy of an original attachment by a constable. He therefore dismissed the bill, and his decree is now assigned as error.</p>

<p>1. When legal set-off is cognisable in equity. — One legal demand may be set off against another in equity, when the defendant is insolvent.</p> <p>2. Construction and effect of anmer. — A literal denial in the answer of a material allegation of the bill, although it might be held insufficient on exceptions, cannot be deemed an admission of the allegation.</p> <p>3. Burden of proof. — The onus of proving a material allegation of the bill, which is not admitted in the answer, is on the complainant.</p>

[BILL IN EQUITY BOB RESCISSION OR CONTRACT ON GROUND OR ERAUD.J Appeal from tbe Chancery Court of Franklin. Heard before tbe Hon. JoiiN Foster. This bill was filed by James Roberts in bis life-time, and was afterwards revived in tbe name of bis administrator.

[ACTION ON PROMISSORY NOTE, BY PAYEE AGAINST MAKER.] Appeal from tbe Circuit Court of Barbour. Tried before the Hon. S. 3>. Hale. This action was brought by Louis B. Hass, against Robert T. White, and was founded o-n the defendant’s promissory note for $187 88, dated at Clayton, Ala., ou the 1st May, 1854, and payable six months after date, to the plaintiff’s order.

[BILL IN EQUITY TO ESTABLISH RESULTING TRUST IN LANDS.] Appeal from the Chancery Court at Mobile. Heard before the Hon. Wade Keyes. ■ This bill was filed by Joseph Wiswall, the appellant, against Stewart & Easton, late partners in the practice of the law, and sought to have the defendants declared trustees for his benefit of the legal title to a certain tract of land.

[línvL.M EQUITY FOE SETTLEMENT OP PARTNERSHIP AND ADMINISTRATION. J Appeal from the Chancery Court at Mobile. Heard before the Hon. Wade Keyes. The material facts are stated in the opinion of the court.

[creditors’ bill to establish and enforce general assignment.] Appeal from the Chancery Court of Pike. Heard before the Hon. Wade Keyes. This bill was filed by Jeremiah Warren, the appellant, in behalf of himself and such other creditors of Jacob Pruitt as might come in and contribute to the expenses of the suit.

<p>i. Statutory judgment against administrator for costs, in malicious action, not enjoined. A statutory judgment for costa against an administrator individually, after the return of an execution de bonis intestalis ‘ no property found,’ will not be enjoined in equity on account of the insolvency of his intestate’s estate, when it appears that the action at law was instituted by him maliciously, and without reasonable or probable cause.</p>

[BILL IS EQUITY TO ENFORCE VENDOR'S LIEN ON LAND ] Appeal from the Chancery Court at Montgomery. Heard before the Hon. Wade Keyes. This bill was filed by Howell Rose against John G. Winter, aud sought to foreclose a vendor’s lien for the unpaid purchase-money of land. The chancellor rendered a decree for the complainant, from •which the defendant appeals. There are nine assignments of error, none of which require special notice.

<p>I. Declarations in disparagement of tille. — The declarations of the husband, to the effect that certain slaves in his possession were held by him^as trustee for his wife, and not as his individual property, are admissible evidence against his administrator, in an action against the widow to recover the slaves.</p>

[BILL IN EQUITY TO QUIET TITLES AND ENJOIN ACTION AT LAW.] Appeal from the Chancery Court at Mobile. Heard before the Hon. Wade Keyes. This bill was filed by Frederic Ravesies against Leonard Fash, and sought to quiet the plaintiff’s title to a tract of land of which he was in possession, and to perpetually enjoin the defendant from suing at law for its recovery.

[BILI, IN EQUITY FOR RELIEF AGAINST USURIOUS CONTRACT.] Appeal from the Chancery Court of Macon. Heard before the Hon. James B. Clapjc.

<p>1. Sufficiency of complaint. — A complaint in the iorm prescribed by the Code, (p. 551,) “ on promissory note, by payee against maker,” is sufficient to support a judgment by default.</p> <p>2. Time of service of summons. — Where a summons is executed on the 8th day of the month, the cause stands for trial (Code, § 2257) at the ensuing term of the court commencing on the 29th.</p> <p>3. Preemption as to regularity of service of summons.- — Mere identity of name will not, after judgment by default, authorize the appellate court to presume, for the purpose of reversing the judgment, that the sheriff who executed the summons on one of the defendants was a party to the suit.</p>

[DETIXDE roil SLAVES.] Appeal from the Circuit Court of Marengo. Tried before the Hon. Robt. Dougherty. This action was brought by the administrator of Scriven S. Cox, deceased, against Burwell KcKinney, to recover several staves, together with damages for their detention from tbe 1st January, 1848.

[action on detinue bond.] Appeal from the Circuit Court of Walker. Tried before the Hon. Wm. S. Mudd. This action was brought by Macon Gunter, against James Savage, Thomas M. Ga’bbert, Wm. L. Stanley, and Wm.

<p>[BILTj IN EQUITY BOB INJUNCTION OB JUDGMENT AT LAW.]</p> <p>Appeal from the Chancery Court of Lawrence.</p> <p>Heard before the Hon. A. J. WalkeR.</p> <p>The bill in this case was filed by Samuel Henderson, the appellant, against Lancaster 0. McVay, Hugh McVay, the heirs of John McVay, deceased, C. C. Gewin, and Isaac N. Owen.' Its object was, to set off a judgment which Henderson had obtained against said Lancaster 0. McVay, against a judgment which said McVay had obtained against said 0. C. Gewin, as slieriff of said county. Henderson’s judgment against McVay was recovered in the name of one D. II. Valiant, for the use of Henderson, in January, 1889, and was founded on a promissory note executed by said McVay, with Hugh and John McVay as his sureties. In July, 1840, Henderson obtained another judgment on said note, against said Hugh and John McVay, the sureties. A pluries fi. fa. on this latter judgment was levied by C. C. Gewin, the sheriff of the county, on a slave named Letty, who was sold under the execution on the 6th June, 1842, and brought $230, which was applied as a credit on the execution. The slave was levied on as the property of said John McVay, and the plaintiff indemnified the sheriff to make the levy. Lancaster C. MeVay claimed the slave as his property, and brought an action of trespass against the sheriff for making the levy and sale. lie recovered a judgment in that action, on the 20th September, 1848, for $448; and the sheriff, at the same time, obtained a judgment against Henderson, on notice and motion, for the same amount. The judgment recovered by said Lancaster MeVay against the sheriff was assigned on the day of its rendition to said Isaac N. Owen. The bill alleged, that Lancaster, Hugh and John MeVay were all insolvent; and sought to enjoin the judgments recovered by said Lancaster against Gewin, and by Gewin against Henderson, and to have the former judgment set off' against Henderson’s judgment against said Lancaster. Other facts are disclosed by the record, which the view taken of the case by the court renders immaterial.</p> <p>On final hearing, on pleadings and proof, the chancellor dismissed the bill; and his decree is now assigned as error.</p>

<p>[BILL IS EQUITY FOR SPECIFIC PERFORMANCE OF CONTRACT.]</p> <p>Appeal from the Chancery Court of Perry.</p> <p>Heard before the Hon. James B. Clark.</p> <p>This bill was filed by the appellant, against the administrator with the will annexed and the devisees of his deceased wife, to enforce the specific execution of a parol contract, by which Mrs. Booker agreed that her husband, in consideration of certain valuable improvements to be by him erected on a tract of land belonging to her separate estate, “ should have and enjoy ” the land and improvements during Ms life. The land was conveyed to Mrs. Booker by her father and mother, in June, 1848, and became a part of her separate estate by virtue of an ante-nuptial contract between her and her husband, which was in these words:</p> <p>“ This indenture, made and entered into this 19th November, 1845, between Rickard M. Booker, of the first part, Pernecy Motes, of the second part, and-James McLe-more, of the third part, (all of the county of Perry and State of Alabama,) witnesseth, that whereas a marriage is shortly intended to be solemnized between the said Richard M. Booker and the said Pernecy Motes; and whereas the said Pernecy is possessed of and entitled to, by inheritance or otherwise, certain property, consisting of four beds and furniture, together with other household furniture, and a debt owing to her from one Albert G-. Hudson of $500; and the said Richard having agreed, that if the said marriage shall take effect, then, notwithstanding the same, he, Ms executors, heirs and assigns, shall not and will not have any right or title to any part of the said property which said Pernecy is or may he possessed of or entitled to in any manner whatever, but that the same shall remain in, and be the separate property and estate other, the-said PernecyNow this indenture witnesseth, that for the purpose of making the said agreement effectual, and reserving the said property to the use and benefit of the said Pernecy and the children of her body, so that the same shall not be in the power, or at the disposal of the said Richard, he, the said Richard, for himself, his executors, and administrators, doth covenant to and with the said James McLemore, his heirs, executors and administrators, by these presents, that notwithstanding the said intended marriage shall take effect, all of the estate and property of the said Pernecy shall be recognized and taken as a distinct and separate estate of and from the estate of the said Richard, and be in no wise subject or liable to his contracts, or the payment oí his debts, and the interest or profits hereafter deriving from said property shall be enjoyed and disposed of in such manner, and for such purposes, as the said Pernecy shall direct. And the said Richard, for himself, his heirs, executors, administrators and assigns, doth agree to and with the said James McLemore, in manner following, to-wit: that if the said intended marriage shall take effect, he, the said Richard, shall and will permit and suffer the said Pernecy to give, grant and dispose of her separate estate, as she shall think proper and fit, by will or otherwise as aforesaid, and will permit any such will hereafter made by the said Pernecy to be duly proved by the executors of said will therein named, and proper to be taken (?) as usual; and that the said person or persons to whom the said Pernecy shall give, dispose, or otherwise, (?) shall and may quietly and peaceably use, possess and enjoy the same according to the true meaning of said bequest or gift, without any denial or interference of him, the said Richard, his heirs, executors, or administrators. And the said Pernecy, in consideration of one dollar to her in hand paid, and for the consideration and purposes above mentioned, doth hereby sell, transfer, convey and confirm unto the said James McLemore, his heirs and assigns, all the right, title, claim and interest of her, the said Pernecy, in and to the effects and property which she now is or may hereafter become entitled to. from the estate of her father or any one else, and all property of every description'which she is or may be entitled to by inheritance or otherwise whatsoever ; in trust, nevertheless, that the said Pernecy is to have the use and benefit of the said property, if she should require it, during her natural life-time; and should she, the said Pernecy, die without a will, then, and in that event, the property is to be equally divided between all of the children of her body that she has at this time. Witness our hands and seals,” &c.</p> <p>The chancellor dismissed the bill for want of equity, and his decree is now assigned as error.</p>

<p>[ACTION ON THE CASE FOE WRONGFUL AKD MALICIOUS ATTACHMENT.]</p> <p>Appeal from the Circuit Court of Dallas.</p> <p>Tried before the Hon. Bobekt Dousiieety.</p> <p>This action was brought by Edwin M. Howlett against Philip P. Hudson, to recover damages for the wrongful and malicious suing out of an attachment, and was commenced in November, 1852. The attachment was sued out on the ground that the defendant was about to remove from the State, so that the ordinary process of law could not be served on him. The plaintiff read in evidence on the trial the deposition of one Booker, the justice of the peace by whom the attachment was issued, which was taken without interrogatories, both parties being present by their attorneys. This witness testified, on cross examination, “ that the recovery of his money was all that the defendant (Hudson) seemed desirous of, or expressed any wish to deponent to do-.”' After the plaintiff had read in evidence the whole deposition, he moved the court to exclude that portion of the above extract which is italicized. The court granted the motion, and the defendant excepted. During the further progress of the trial, the defendant moved to exclude the deposition of one Smith, offered by the plaintiff, on account of the insufficiency of the notice; the deposition being taken without interrogatories, and without any cross examination by the defend-' ant. The court overruled the motion, and the defendant excepted. The court charged the jury, “ that the plaintiff was entitled to recover in this action the actual damages sustained, unless they believe from the evidence that he was about to remove from the State at the time the attachment was sued out;” to which charge, also, the defendant excepted. The rulings of the court above stated, to which exceptions were reserved, are now assigned as error.</p>

<p>1. Assignments of error not noticed unless insisted on. — In civil causes, the appellate court is not bound to express any opinion on those assignments of error which are not insisted on by counsel.</p> <p>2. When judgment debtor, on decree for redemption, not entitled to writ of possession. Under a bill for redemption filed by a judgment debtor, if it appears that he was not in possession of the land at the time of the sale under execution, but that the purchaser was then holding possession of it under a claim of title from another, the court is not authorized, on decreeing a redemption, to award a writ of hab. fac. pos.</p>

[action at law against separate estate of feme covert.] Appeal from tlie City Court of Mobile. Tried before tbe Hon. Alex. McKiNStby.

<p>[action against pahtnbuship on promissory note.]</p> <p>Appeal from the Circuit Court of Tallapoosa.</p> <p>Tried before-the Hon. Johh Gill Shobtee.</p> <p>This action was brought by ¥m. J. Boone, for the use of Hugh R. Banks, against the firm of James L. Burney & Co., which was composed of James L. Burney, II. H. Mapp, and M. A. Mills; was founded on a promissory note for $1,000, executed in the partnership name, dated the 24th September, 1851, and payable on or before the 25thDecemher next after date, to Vm. J. Boone or bearer; and was commenced on the-day of April, 1852. The defendants pleaded the general issue, “ in short by consent, with leave to give any thing in evidence which might be specially pleaded in bar.”</p> <p>On the trial, after the plaintiff had read in evidence the note declared on, the defendants offered a written instrument, dated 24th September, 1851, “ after proving that it was executed at the same time, and was apart of the same transaction, in these words: “Know all men by these presents, that I, William J. Boone, for and in consideration of $1,000 to me in hand paid by James L. Burney, do this day sell and convey to James L. Burney all my interest in two certain stores, one in the village of Dudley-ville, and one at a place known as Youngsville, together with all the notes, accounts, books, and every other kind of indebtedness made to the firm of W. J. Boone & Co. since the 18th February, 1851, together with all goods on hand, or that has been purchased by said company, since the time above mentioned ; also, my interest in the books of Dr. M. A. Mills; upon this express condition, that if the debts and goods of the firm of W. J. Boone & Co., with the exception of the books of Dr. M,. A. Mills, are sufficient to discharge the liabilities of the said firm, then, and in that ease, the said W. J. Boone does not convey his interest in the books of Dr. M. A. Mills. Signed and sealed,” &c. “ The defendants then offered evidence tending to show, that said W. J. Boone had not turned over money which he had received from the sales of goods belonging to said two stores before the 24th September, 1851; ” also, “ that said Boone, at the time of said trade, said he was not ready to make a full showing to said Burney in relation to the money which he had received from said two stores, but would do so in a short time to the satisfaction of said Burney; ” also, “that said Boone had failed to make out such showing to the satisfaction of said Burney at any time, either before or since the commencement of this suit.” The court excluded each portion of this evidence, on the plaintiff’s objection, and the defendants reserved exceptions to its rulings.</p> <p>The plaintiff then read in evidence-, after proof of its execution, a penal bond executed by said Burney, Mapp and Mills to him, also dated the 24th September, 1851, the condition of which was as follows: “ The condition of the above is such, that if the said James L. Burney, Marcus A. Mills and Hampton II. Mapp shall pay oft' and discharge all the debts and demands, of every kind and description, made by the firm of W. J. Boone & Co. since the 18th February, 1851, to the present date, then the above bond to be null and void, else to remain in full force.” “It was proved, that the firm of W. J. Boone & Co. was formed on the 18th February, 1851, and was composed of said W. J. Boone, II. II. Mapp, and M. A. Mills; that Mapp, in a few months after they commenced business, sold out his interest to said James L. Burney, who became a partner in said firm, and was such partner on the 24th September, 1851, when he bought out the interest of said Boone; and that the said business was continued by said Burney, Mapp and Mills, on and after said 24th September, 1851, under the partnership name of James L. Burney & Co., in which character they signed the note sued on.”</p> <p>“ This was all the evidence ; and thereupon the court charged the jury, that if they believed all the evidence, they must find for the plaintiff, for the amount of the note sued on, with interest; ” to which charge the defendants excepted, and which, together with the rulings of the court on the evidence, they now assign as error.</p>

<p>[BILL IN EQUITY TO SUBJECT WIFE’S SEPAEATE ESTATE TO PAYMENT OF CHARGE CREATED BY HUSBAND.]</p> <p>Appeal from tbe Chancery Court of Dallas.</p> <p>Heard before the Hon. James B. ClaRK.</p> <p>The bill in this case was filed by Michael Mulhall, the appellant, against John D. 3?. Williams and wife, and sought to subject the separate estate of Mrs. Williams to the payment of services rendered by the complainant, under a contract with the husband, in ditching the lands belonging to her separate estate. Mrs. Williams’ separate estate was created by ante-nuptial contract, which vested the legal title in a trustee; but the trustee died without accepting the trust, and Mr. Williams became the acting trustee. Mr. Williams gave his promissory note for the amount of the complainant’s demands, and afterwards confessed a judgment in his favor. An execution was issued on this judgment, and returned “ no property found; ” and the bill alleged that Mr. Williams was insolvent. The chancellor dismissed the bill for waut of equity, on the authority of Jones v. Dawson, 19 Ala. 672; and his decree is now assigned as error.</p> <p>cited Coopwood v. Wallace, 12 Ala. R. 790 ; N. A. Coal Company v. Dyett, 8 Paige, 9; S.. C., 20 Wendell, 570; Upton v. Gray, 2 G-reenl. 373; Cater v. Evelagh, 4 Dess. 19; Williams v. Mitchell, 17 Mass. 98; McElroy v. McKenzie, 2 Porter, 33 ; Sanford v. Howard, 29 Ala. 684; Thomas v. Lambert, 21 Maine Hep. 308 ; 2 Story’s Equity, §§ 1235, 1399.</p> <p>cited Jones v. Dawson, 19 Ala. 672; Kirkman, Abernathy &.Hanna v. Benham, 28 Ala. 501; Lyonv. Hays’ Adm’r, 30 Ala.-430.</p>

<p>1. Presumption in favor of validity of fordgn judgment. — A transcript of a foreign judgment, rendered by a court of general jurisdiction at a special term, and properly certified under the acts of congress, is prima-faoie evidence of a valid judgment, although the record does not affirmatively show a compliance with the statutory requisitions authorizing special terms: the courts of this State will presume, in the absence of evidence to the contrary, that the requisitions of the statute were complied with.</p>

[ACTION ON PROMISSORY NOTE, BY ASSIGNEE AGAINST MAKER.] Appeal from the Circuit Court of Barbour. Tried before the Hon. S. D. Hale. This action was brought by William A. McKenzie against Hunt & Andrews, as partners, and was founded on the defendants’ promissory note for $175, dated the 14th February, 1853, and transferred to the plaintiff through several intermediate holders. The defendants pleaded payment and set-off, and issue was joined on those pleas.

[APPEAL ER03I DECREE OP PARTIAL DISTRIBUTION.] Appeal from the Probate Court of Marengo. IN the matter of the estate of William McAllister, deceased, on the petition of Elizabeth Thompson, as sole distributee and heir-at-law, for her distributive share of the estate. McAllister died in October, 1853, leaving a will, which was duly admitted to probate by said court in August, 1854, and of which Lewis B. McCarty was the executor.

[ACTION ON PROMISSORY NOTE — PLEA, NON EST EACTDM.] Appeal from tbe Circuit Court of Marengo. Tried before tbe Hon. E. W. Pettus. This action was brought by John Yarner against William Monis, and was founded on the defendant’s promissory note for $265, payable on the 1st January, 1854, and dated the 29th-r, 1852. The only plea was non est factum, on which issue was joined.

[ACTION FOR BREACH OP WARRANTY OP SOUNDNESS OP SLAVE.] Appeal from the Circuit Court of Chambers. Tried before the Hon. E. W. Pettus. This action was brought by John R. Humphries, the appellant, against the firm oí Barr & Bradford, to recover damages for the breach of a warranty oí soundness of a slave named Len, sold by defendants to plaintiff; was commenced in April, 1852; and was prosecuted against Bradford, as surviving partner, after the death of Barr.

<p>[scire facias os decree of PROBATE COÜRT.]</p> <p>Appeal from the Probate Court of Macon.</p> <p>IN this ease, Jefferson R. Herrin, as administrator with the will annexed of William Herrin, deceased, sued out a scire facias on the 24th June, 1856, to revive a decree of the probate court, which was rendered on the 24th May, 1854, and which was described in the sci. fa. as a “judgment for |28,487 02 against Arnold Seale and Jehu Sharp, executors of William Sharp, deceased, in favor of Jefferson R. Herrin, administrator with the will annexed of William Herrin, deceased.” Arnold Seale, against whom alone the decree was sought to be revived, demurred to the scire facias, on the ground (with others) that the decree was not such as the statute authorized to be revived in this manner. The demurrer was overruled, and the defendant then interposed five pleas, to each of which the court sustained a demurrer. Prom these pleas it appears, that letters testamentary were granted by said probate court, on the 10th September, 1847, to said William Sharp, as the executor of William Herrin’s will; that said Sharp continued to act as executor up to the time of his death, and died without making a settlement of his executorship; that on the 15th September, 1852, the last will and testament of said Sharp was admitted to probate by said, probate court, and letters testamentary thereon were granted to Arnold Seale and Jehu Sharp, the executors named in said will; that on the’ 16th October, 1852, said probate court granted letters of administration de bonis von, cum test, arm., on the estate of said William Herrin, to Jefferson R. Herrin, who afterwards (at what particular time is not shown) instituted proceedings against the executors of said William Sharp, to compel a settlement by them of their testator’s execu-torship on the estate of said William Herrin; that this proceeding terminated in the decree now sought to be revived, on which no execution had been issued; that said executor’s afterwards reported the estate of their testator, the said William Sharp, insolvent, and it was so declared by said probate court on the 8th January, 1855; that said decree was not filed as a claim against the estate of said William Sharp until after the expiration of nine months from the declaration of insolvency, and was, on that account, rejected and disallowed by said probate court as a claim against said estate; that on the 14th January, 1856, the executors of said Sharp made a final settlement with said probate court of their administration on said Sharp’s estate, and delivered over all the assets to said Arnold Seale, who was continued by the court as the representative of the estate, in consequence of the failure of the creditors to nominate an administrator.</p> <p>The defendant’s first plea stated the facts connected with the rendition of the decree sought tobe revived, and averred that it was not such a judgment or decree as could be revived by scire facias; the second set up the failure to file the decree as a claim against Sharp’s estate, within nine months after the declaration of insolvency, as a bar to the revivor of the decree; the -third set up the final settlement of the executors, after the declaration of insolvency, as a bar to the revivor; the fourth insisted on the disallowance and rejection of the decree by the probate court, on account of the failure to file it within nine months after the declaration of insolvency, as a bar to the revivor; and the fifth averred, that the decree against the executors was joint, and could not be revived against Seale in the absence of his co-executor, who had not been cited.</p> <p>The errors assigned in this court were, the overruling of the demurrer to the scire facias, and the sustaining of the demurrer to the several pleas. By an agreement of record between the counsel of the respective parties in this court, formal defects in the scire facias and poleas were waived, and four questions were submitted to this court for decision — to-wit: “1. Can such a judgment be revived on scire facias ? 2. Can it be revived after the declaration of insolvency, the claim not having been filed as ordinary demands are required to be filed against insolvent estates ? 3. Is not the disallowance of the claim by the probate court, when it came to determine upon the claims after the expiration of nine months from the decree of insolvency, as shown in the record, a bar? 4. Is the decree of the court declaring the estate insolvent, the settlement of the executors, and ‘the continuance of Seale as the representative thereof,’ a bar to the revivor?”</p>

<p>[DETINUE FOB SLAVES.]</p> <p>Appeal from the Circuit Court of Dallas.</p> <p>Tried before the Hon. JohN Gill Shorter.</p> <p>This action was brought by Thos.- M. Williams against David Moore, and was commenced in March, 1852. In the writ, and in the commencement of the declaration, the plaintiff was described as “ Thomas M. Williams, administrator de bonis non on the estate of Peter Wyatt, deceased;” but he declared ou his own individual title and possession, and there was no averment showing that he sued in his representative character. The defendant pleaded, “in short by consent, 1st, won detinet; 2d, the statute of limitations of three years; 3d, the statute of limitations of six years; and, 4th, ne unques administrator.” 'To the second, third and fourth pleas, the plaintiff replied, •“ that Mary A. E. Wyatt and William Mock, in 1833, took out letters of administration on the estate of Peter Wyatt, deceased, from the orphans’ court of Lowndes ■county, the late residence of said Peter Wyatt; that ■said administrators, without any order from said orphans’ •court, sold said slave sued for in this action to defendant; and that said administrators continued to act as such until March, 1852, when they were removed from said administration, and plaintiff was appointed by said court administrator de bonis non of said estate.” The court sustained a demurrer to this replication, and its ruling is now assigned as error.</p>

<p>[BILL IN EQUITY FOB BEFORMATION OF DEE».]</p> <p>Appeal from the Chancery Court of Marengo.</p> <p>Heard before the Hon. "Wade Keyes.</p> <p>This bill was filed by Bennett Flanagan, Francis L. Flanagan, and Mrs. Lucy Hylton, their mother, against Sterling Hylton, the husband of Mrs. Lucy Hylton, John "Whiting, the commissioner and trustee of the State Bank and Branches, and other parties not necessary to be named. It sought, 1st, to enjoin the sale of a slave named Linah, on which an execution in favor of the State Bank against Sterling Hylton had been levied; 2d, to reform a deed under which the complainants claimed said slave; and, 3d, to have said slave declared subject to the trusts of a deed by -which a slave named Cicely, who was afterwards exchanged for Linah, was conveyed to trustees for the use and benefit of the complainants. The slave Cicely was conveyed by Lewis Ford, the father of Mrs. Hylton, (then Flanagan,) in September, 1825, to B. W. Boberts and William Cottrell, “as trustees for Lucy Flanagan and her children.” This deed directed, that the proceeds of the labor or hire of the slave should be applied by the trustees “to the use and benefit of the said Lucy Flanagan and her children during the natural life of said Lucy, and then said negro, with all her increase, to go and descend to the said children of the said Lucy; ” and secured Mrs. Flanagan’s interest to her sole and separate use. The girl Cicely was sold or exchanged, some time in 1836, after the death of Mrs. Flanagan’s first husband, for the girl Linah. The bill alleged, that the slave was sold by Cottrell, the trustee, at the request of Mrs. Flanagan, and that Linah was bought with the proceeds of the sale ; that it was the intention of the parties that Linah should be held under the trusts of the deed in the place of Cicely; that for this purpose she was delivered by the trustee to Milton Ford, who was a brother of the said Lucy, “ upon the express understanding that said girl was to be settled upon said Lucy and her children, in the place and stead of the girl Cicely, to be held in the same manner, and subject to the same deed ; ” that said Milton Ford accordingly delivered the girl Linah back again to the said Lucy, (who soon afterwards married Sterling Hylton,) and at the same time executed a deed, by which said slave was conveyed, through mistake, “to the heirs of said Lucy,” instead of “ to the sole use and benefit of the said Lucy and her children; ” and that tbe mistake in the deed was only discovered a short time-before the filing of the bill.</p> <p>The complainants took the deposition of Milton Ford, who testified, in substance, as follows: “ The girl Cicely, named in the deed of Lewis Ford to Cottrell, did not suit Lucy. Cottrell thereupon had her appraised,.with her children. She was appraised at $600. Cottrell had the girl Linah, recently purchased by him at the price of $340. He gave Linah, with $260 in cash, to Lucy Flanagan, and took Cicely and her children himself, and as his own. This was done, with Lucy Flanagan’s consent, in September, 1836. Upon the exchange being made as above stated, Cottrell assigned, to witness the bill of sale for Linah which he had, and witness gave Cottrell his obligation to convey Linah, or make such disposition of her, as Lucy Flanagan should direct.” “When witness made the deed, he intended to carry out the intention ot the first deed; but, at the instance and request of Lucy, made it to her children, or heirs. One Alexander, a justice of the peace, who was a plain, common man, drew the deed. Neither Alexander nor witness knew anything about drawing deeds. When this deed was drawn, neither the original deed of Lewis Ford, nor a copy, was in the possession of witness; nor had' witness ever seen it.”</p> <p>On final hearing, on pleadings and proof, the chancellor dismissed the bill, absolutely as to Mrs. Hylton, but without prejudice as to the other complainants; from which decree the complainants appeal, and which, they now assign as error.</p>

<p>[MOTION FOB SUMMARY JUDGMENT BETWEEN SURETIES.]</p> <p>Appeal from the Circuit Court of Madison.</p> <p>Tiled before the Hon. Jomsr E. Mooue.</p> <p>This proceeding was instituted by John W. Scruggs against William B. Irwin, both of whom, together with one Richard 0. Mason, were sureties on the official bond of Henry E. Scruggs, as register of the chancery court of Morgan county. In the notice, which was issued and served on the 11th August, T855, the defendant was “ notified that Isaiah Bill has sued ” said Scruggs on said bond; that the writ was returnable to the August term,. 1855, of the circuit court of Madison, “ and stands for trial at said term.” At the March term of the court, 1866, the following judgment was rendered : “ This day came the plaintiff, by his attorney, and shows that, heretofore, Henry E. Scruggs, with plaintiff, defendant and Richard 0. Mason as his sureties, executed their bond, dated the 25th of March, 1849, for the sum of $10,000, payable to Reuben Chapman, governor, &c., with condition to be void if said Henry E. Scruggs should well and truly perform all the duties by law required of him as the register of the chancery court of Morgan county; and it further appearing to the court, that the office of said Henry F. Scruggs has expired, and that Isaiah Dill is his successor ; and it further appearing that said Scruggs, while such register, received money growing out of a sale of property in a suit wherein Edward Holliday was complainant, and Thomas Price and others were defendants, and failed to pay the same over; and that said Dill has sued this plaintiff upon said bond, and has at this time recovered a judgment thereon against him, for the sum of $10,000, to be discharged by the payment of $3,288 86 and it further appearing that plaintiff caused a written notice to be served on this defendant, on the 11th day of August, 1855, of the pendency of said suit in favor of Dill, and that he would move for a judgment against this defendant, for one half the amount for which said Dill might recover against him; and it further appearing to the court that said Henry E. Scruggs and Richard C. Mason are insolvent: It is therefore considered by the court, that plaintiff recover of said defendant the sum of $1,641 93, being one half of the liability of the plaintiff* upon the judgment against him in favor of said Dill, besides the costs of this motion.”</p> <p>The errors assigned are — “ 1st, the rendition of judgment upon the facts disclosed in the record; 2d, the rendition of judgment without the intervention of a jury.”</p>

<p>[MOHOS TO QUASH EXECUTION.]</p> <p>Appeal from tbe Circuit Court of Dallas.</p> <p>Tried before tbe Hon. Robert Dougherty.</p> <p>This case is a branch of that reported in 31 Ala. 659, under tbe name of Steamboat Farmer v. Me Oraio. That case was commenced in May, 1852, by attachment against the said steamboat, sued out by Abner G. MeCraw, to recover damages for injuries caused by a collision between said steamboat and a flat-boat. The sheriff having seized the boat under the attachment, J. B. "Walker, Edward E. Shields, Daniel Walker, M. Waring, Stephen Twelves and Jos. T. Hunter entered into a replevin bond, conditioned as follows: “ Now, if the said Edward E. Shields, J. B. Walker, Daniel Walker, Joseph T. Hunter, Moses Waring and Stephen Twelves shall well and truly pay, or cause to be paid, unto the said Abner G. MeCraw, his heirs, executors, administrators, or assigns, such judgment aá may be rendered in such attachment proceeding, in favor of said MeCraw, against said Edward E. Shields, J. B. Walker, and Daniel Walker, and shall further pay all costs that may accrue in the trial of the same, then this, obligation to be void,” &c. At the spring term, 1856, a judgment was rendered in the cause, which (omitting the recitals as to the appearance of the parties, &c.) was in these wbrds: “ It is therefore considered by the court, that the plaintiff recover of the defendant the sum so assessed by the jury, with the costs in this behalf expended, for which execution may issue; and it is ordered, adjudged, and decreed, that the said steamboat, named and called the Farmer, her tackle, apparel and furniture, be, and it is hereby, condemned to the satisfaction of the damages so assessed by the jury, and the costs of this suit.” On this judgment execution was issued, commanding the sheriff to make the money “ of the steamboat Farmer, her tackle and furniture, and also of the goods, chattels, lands and tenements of Edward E. Shields, J. B. Walker, D. Walker, M. Waring, Stephen Twelves and Joseph T. Hunter.” The defendants moved the court to quash this execution on the following grounds: “1st, that there is no judgment authorizing the issu£ of said execution; 2d, that there is no judgment authorizing the issue of said execution against the goods and chattels, lands and tenements of Joseph T. Hunter, Edward E. Shields, J. B. Walker, Daniel Walker, Moses Waring, and Stephen Twelves; 3d, that the bond set out in said execution is not a statutory bond, and no execution could be issued thereon; and, 4th, that the condition of said bond has not been broken, and therefore no execution could issue thereon.” A similar motion, predicated on the same grounds, was submitted on behalf of said Walker, Shields, Hunter, Twelves and Waring. The court oveiTuled the motion to quash the execution, and its action is now assigned as error.</p>

<p>1. Dower not barred by statute of limitations, nor by staleness of demand. — The act of 1843, (Clay’s Digest, 329, § 93,) limiting “ all actions for the recovery of lands, tenements, or hereditaments,” to ten years after the accrual of e the cause of action, does not apply to suits for dower ; nor is a court of equity authorized to treat a claim to dower as a stale demand, on account of the mere lapse of time short of twenty years, independent of other equitable circumstances.</p>

<p>[ACTION FOR MONET HAD AND RECEIVED.]</p> <p>Appeal from tbe Circuit Court of Bibb,</p> <p>Tried before tbe Hon. C. W. RapieR.</p> <p>This action was brought by Samuel W. Davidson, as tbe administrator of Pleasant Hill, deceased, against Josiab S. Kennedy. No pleas appear in tbe record. The evidence adduced on tbe trial, as set out in tbe bill of exceptions, was substantially as follows: Tbe plaintiff proved, that be sold six bales of cotton, belonging to his intestate’s estate, to Philpot & Lapsley, of Selma, and directed them to send tbe proceeds, which amounted to $219, by tbe bands of tbe defendant, on bis return from Mobile to Centreville; that tbe money was counted out by one of tbe partners of tbe firm of Philpot & Lapsley, and banded to one Alexander, their book-keeper, with instructions to deliver it to tbe defendant, who was then about leaving Selma, on tbe railroad, on bis return to Centreville. Alexander testified, that be went to tbe railroad depot with tbe money, and there banded it to the defendant, together with tbe account of sales, in an unsealed envelope directed to Bernhard & Davidson; that tbe defendant, on receiving it, jestingly said, “Are you not afraid that I will run away with so much money?” and that tbe money was in current bank-bills, mostly of Georgia banks, with perhaps some few of tbe South Carolina banks. Tbe plaintiff’s agent afterwards called on Philpot & Lapsley for tbe money, and, on being informed that they had sent it by the defendant, “ called on defendant for the money, who stated that be bad not got it.” Bernhard, one of tbe firm of Bernhard & Davidson, also testified, “that, having been informed that Philpot & Lapsley had sent the money to them by the defendant, he called on the defendant for the money, who stated to him that he had no recollection of having received it, but that if he did receive it, it must have been at the clerk’s office at the warehouse of the railroad depot at Selma.” The court charged the jury, “that upon the evidence aforesaid, they must find a verdict for the defendant;” to which charge the plaintiff excepted, and which he now assigns as error.</p>

<p>[CONTEST AS TO VALIDITY OP WILL.]</p> <p>Appeal from tbe Probate Court of Baldwin.</p> <p>IN the matter of the last will and testament of Mary A. Stedham, deceased, which was propounded for probate by James B. Stedham, the executor therein named, and contested by the decedent’s heirs-at-law and distributees. The grounds on which the will was contested were — “ 1st, that said Mary A. Stedham, at the time of executing said supposed will, was not of sound mind and disposing memory, and therefore said paper purporting to be her will is not her last will and testament; 2d, that said Mary A. Stedham, at the time of executing said supposed will, was 'under the influence of morphine, and had been for eight or ten days previous thereto, and, from the effects thereof, was incapable of any act requiring judgment and deliberate intention, and under the influence of this medicine, which destroyed her capacity to make a will, she executed the same; 3d, that said supposed will was executed by the decedent, under the influence, and at the suggestion of her husband, while she was in a debilitated condition of health, laboring under medicines and disease which rendered her incapable of any deliberate act of judgment; and hence they say, that said paper is not the last will and testament of said decedent.” These objections, as the judgment entry recites, were filed by T. 0. Barlow, in right of his wife Elizabeth, who was a sister of the decedent ; “ at which time neither of said parties demanded a jury to try the validity of said will.” On the trial, Andrew J. McBavid, another heir-at-law, appeared, andjoined with the other contestants. The court, on motion of the proponent, “ struck out the second and third grounds of objection, and refused to allow the contestants a jury to try the validity of said will; ” to which rulings of the court the contestants excepted, and which they now assign as error.</p>

[bill in equity for INJUNCTION AND ACCOUNÍ,] Appeal from the Chancery Court of Pickens. Heard before the Hon. James B. Clake.

<p>1. Equitable relief against judgment at law. — A defendant in a judgment at law, who seeks relief against it in equity on grounds which would have formed a good defense at law, must allege and prove that his failure to discover and avail himself of such defense at law was attributable, not to any negligence or want of diligence on his part, but to fraud, accident, or the act of the opposite party.</p>

<p>1. Construction and effect of answer. — A literal denial in tlie answer, though evasive, and insufficient on exceptions, cannot be taken as an admission of the allegation of the bill.</p>

[ASSUMPSIT ON PBOJÍISSORY NOTE, BY ENDORSEE AGAINST ENDORSER.] Appeal from the Circuit Court of Montgomery. Tried before the Hon. JoHN Gill Shorter. This action was brought by John P. Hailey, against William Falconer, and was founded on the defendant’s endorsement of a promissory note for $800, made by one F. A. Wingfield, dated Shreveport, La., February 22, 1850, and payable on the 1st November next after date, to defendant or order.

[ACTION 3?01l FORCIBLE ENTRY AND DETAINER.] Appeal from the Circuit Court of Coosa. Tried before the Hon. John Gill ShokteR.

<p>1. Feme covert's power to make will. — A married woman, owning a separate estate, whether created by contract or by statute, may dispose of it by will.</p> <p>2. Instrument held will, and not deed. — A writing under seal, in form a deed of gift; executed by husband and wife; purporting to convey to their children, by the'words “have given, granted, and bestowed, and, by these presents, do give, grant, and bestow,” ail the real and personal property composing the wife’s separate estate, “under the following restrictions, reservations, and conditionsreserving to the wife a life estate in all the property ; and further providing, “ that the foregoing gift is to take effect” at her death, that her husband is to be appointed her executor, and that he “ shall keep the property together for two years for the benefit of the children, until all of the estate can be wound up, when the said gifts are to be distributed,” — is a will, and not a deed.</p> <p>3. Validity of will not affected by unnatural or inequitable disposition of property. The fact that a will makes an “unnatural and inequitable disposition” of property does not, per se, destroy its validity, if executed by a person of sound and disposing mind and memory.</p> <p>4. Hearsay inadmissible as evidence. — Dangerous illness, or the fact that a particular person was at the point of death, cannot be proved by general report in the village.</p> <p>5. Competency of testator's attorney as witness for will. — An attorney-at-law, who was employed by a married woman to file a bill for a divorce and the removal of her husband from the control of her separate estate, and who holds her note for the amount of his fees, is a competent witness (Code, § 2302) to sustain the validity of a will, subsequently executed by her, disposing of all her separate estate, and attested by said attorney.</p> <p>6. Validity of will not affected by mistake. — A “ mistaken notion ” on the part of the wife, that her husband intended to convert to his own use the property composing her separate estate, which induced her to make a will excluding him from all participation in her property, does not avoid such will.</p>

[INDICTMENT FOB SELLING SPIRITUOUS LIQUOB TO MINOB.] Appeal from tbe Circuit Court of Lowudes. Tried before tbe Hou. Nat. Cook.

[INDICTMENT AGAINST SLAVE EOR ASSAULT WITH INTENT TO KILL WHITE PERSON.] Appeal from the Circuit Court of Choctaw. Tried before the Hon. C. W. Bapieb. The prisoner’ in this, case, who was a slave, was indicted for an assault with intent to kill one Thomas Curtis, a white person. The indictment was found at the March term, 185T, and a mistrial was had at the same term.

[INMCTMEUT EOR LMtCEHY J?ROM STOREHOUSE.] Appeal from the Circuit Court of Pike. Tried before the Hon. JOHN G-ill Shoetee. The prisoner in this case was indicted for the larceny of a pair of shoes, alleged to have been the personal property of one Archibald T. Lockard, and to have been stolen from a storehouse.

[INDICTMENT EOR ASSAULT WITH INTENT TO MURDER.] Appeal from the Circuit Court of Mobile. Tried before the Hon. C. W. RapieR.

<p>1. Death of bastard child. — The death of the alleged bastard child, after issue joined, is proper matter for a plea puis darrein continuance, but constitutes no ground for a motion to dismiss the proceeding.</p> <p>2. Competency of prosecutrix as witness. — The mother of the alleged bastard is made a competent witness by the statute, (Code, § 3807,) and her competency is not affected by the death of the child before the trial.</p>

[judgment against DEFAULTING -WITNESS before grand jury.] Appeal from the Circuit Court of Choctaw. Tried before the Hon. E. W. Pettus. The appellant in this case having been summoned to attend as a witness before the grand jury, and having made default, a judgment nisi was taken against him, on which a scire facias was issued.

[indictment fob lending pistol to minob.] Appeal from the Circuit Court of Dallas. Tried before the Hon. William M. Bbooks. The indictment in this case charged, that the prisoner, James Coleman, “did sell, give or lend, to Matthew Locke, a male minor, a pistol.” On the trial, the prisoner reserved the following bill of exceptions to the rulings of the presiding judge: “ On the trial of this case, but one witness was examined by the State, and none at all by the defendant.

<p>1. Sufficiency of indictment — An indictment under section 1176 of the Code, charging that the defendant “ did obstruct a certain public road,” which is particularly described, “ by a fence, bar, or some other impediment, without leave of the court of county commissioners first had and obtained,” is fatally defective.</p>

[SCIRE ¿FACIAS AGAINST BAIL ON FORFEITED RECOGNIZANCE.] Appeal from the Circuit Court of Shelby. The record does not show the name of the presiding judge.

<p>[INDICTMENT FOB EMBEZZLEMENT.]</p> <p>Appeal from .the City Court of Mobile.</p> <p>Tried before the Hon. Alex. McEjNSTRY.</p> <p>Ti-ie indictment in this ease was in these words:</p> <p>“ The grand jury of said county charge, that, before the finding of this indictment, Jules Lowenthal, being the agent or clerk of Henry Sengstak, (the said Jules not being an apprentice, or under the age of eighteen years,) embezzled, or fraudulently converted to his .own use, money .to about the amount of eighteen hundred dollars, and a bill of exchange to about the amount of eighteen hundred dollars, which came into his possession by virtue of his employment.; against the peace and dignity of the State of Alabama.”</p> <p>The rulings of the court on the trial, to which exceptions were reserved, are thus stated in the bill of exceptions :</p> <p>“ The State offered in evidence a certain bill of exchange, dated New York, May 4, 1857, purporting to be drawn by Samuel B. Matthews, in favor of Mad. Diadem on Rives, Battle & Co. of Mobile, for $1800, payable on the 1st day of .January next after date; which bill was shown to have been signed by Samuel B. Matthews. To the introduction, of this bill as evidence the prisoner, by his counsel, objected; the court overruled his objection, and allowed .said bill to go to the.jury ; and the prisoner-excepted.</p> <p>“ The State introduced the book-keeper of Rives, Battle- & Co. as a witness, who- testified, that the prisoner called1 at the office of Rives, Battle & Co. on the 24th December, 1857,' and presented said bill of exchange to-a member of the firm for acceptance; that the latter told him, as the-bill had but a few days to run, they would cash it, if the-interest to accrue between that time and its matui’ity were taken off; that the prisoner then left the office, but returned in a few minutes, and said, ‘ "We will doit,’ or ‘ They will do it,’ (the precise words witness eould not recollect;) that Rives, Battle & Co. thereupon gave the-prisoner their check for $>1785 61, whereupon the prisoner wrote at the bottom of the bill the following words :■ ‘ Rec’d payment, Sengstag & Co., pr. J. Lowenthal,’ and then delivered said bill' to- Rives, Battle & Co. Said witness testified, also, that i:t was customary in Mobile to-pay bills, having but a short time- to run, when they were presented for acceptance, by taking off the interest-To the introduction of this evidence, as to custom, the-prisoner, by his counsel, objected; the court overruled the-objection, and allowed the evidence to go to the jury, and the prisoner excepted.</p> <p>“ It was shown that the said check had been paid by the hank on which it was drawn ;■ but there was no proof that the prisoner had presented it for payment, or that he-received the amount of it.. The State introduced one-Ilye as a witness, who testified, that he was the agent in Mobile of the mercantile firm of Sengstag & Co., whichfirm consisted of Henry Sengstag, and Meyer, and Stenckle,, who resided in New York, and was engaged in the foreign commission business; that Sengstag was the controlling; and managing partner, and the other partners, by an agreement which had never been published to the world,, shared with him in the profits and losses; that the prisoner, on the 24th December, 1857, was a clerk of said firm-in Mobile; that his duties were to copy letters, deposit letters in the post-office, and go on errands; that the said; bill of exchange, on the 24th December, 1857, came into-the possession of witness, as the agent of Sengstag & Co. £ that it had been sent to- them for collection ; that witness; banded tbe bill to tbe prisoner on tbe same day, witb instructions to present it to Rives, Battle & Co. for acceptance, and then return it to witness; tbat tbe prisoner never bad possession of said bill, until it was so banded to him by witness; tbat tbe prisoner bad no authority, either from Sengstag & Co., or from witness as their agent, to collect tbe amount of tbe bill, nor to negotiate, discount, or dispose of it in any way, but was simply instructed to present it for acceptance, and there bis duty and authority ended; and tbat bis possession of tbe bill wTas a mere custody for tbe purpose of presentation.</p> <p>“It was shown, also, tbat when tbe prisoner returned to' tbe office of Sengstag & Co., on the 24th December, 1857, nothing was said about tbe bill; tbat when be was sent for it on tbe next day, be returned, saying, tbat both of tbe Mess. Battle were out of town, but they would accept the. bill when they returned, and send it to Seng-stag & Co.; tbat on tbe 26th December tbe prisoner went to New Orleans, without informing bis employers of bis intention ; tbat they looked for him there, but could not fine! him ; tbat they then offered a reward for him, and be was arrested by tbe police, and brought back to Mobile ; tbat tbe prisoner bad never paid any money to Sengstag & Co. on account of said bill, was over twenty-one years of age, and was not an apprentice; tbat Sengstag & Co., and Rives, Battle & Co. were merchants in Mobile: and tbat tbe facts above detailed occurred in Mobile county.</p> <p>“ This was all the testimony in tbe case; and thereupon tbe court instructed the jury, among other things, that if they believed from tbe evidence tbat tbe prisoner was tbe clerk of Sengstag & Co., and received tbe bill of exchange from them, or from their agent, witb instructions to present it to Rives, Battle & Co. for acceptance, and then to return it; and tbat, instead of doing so, be fraudulently converted it to bis own use, — such conversion, was an embezzlement under section S143 of tbe Code, although they should believe from' tbe testimony tbat he bad no authority to negotiate, discount, or in any way dispose of tbe bill; and this is so, if they were satisfied tbat tbe bill bad first come to tbe possession of bis employers.</p> <p>“ The prisoner excepted to this charge, and then requested the court to instruct the jury as follows:</p> <p>“ 1. That if they believed from the testimony that the bill of exchange first came into the possession of his employers, the subsequent conversion or appropriation of it by the prisoner did not constitute the offense of embezzlement.</p> <p>“ 2. That if they believed from the testimony that the prisoner had the mere custody of the bill, for the purpose of presenting it for acceptance, his subsequent conversion of it did not constitute the offense of embezzlement under section 3143 of the Code.</p> <p>“ The court refused both of these charges, and to the refusal of each the prisoner excepted.”</p> <p>After conviction, the defendant moved in arrest of judgment, on the following grounds: “ 1st, because the indictment is too general, vague, and uncertain; 2d, because it does not describe the bill of exchange with sufficient particularity; 3d, because it should have set out the bill according to its terms, or, at any rate, have described the bill by its date, amount, names of parties, and to whom it belonged; and, 4th, because it should have contained an averment that there was an intention to defraud.” The motion in arrest was overruled.</p> <p>1. The motion in arrest of judgment ought to have been sustained, because the indictment, though in the form prescribed in the appendix to the Code, is utterly wanting in that certainty which is essential to put the party upon his defense'; that certainty which, as this court said in Noles v. The State, 24 Ala. 672, every indictment must contain — such “ as furnishes the accused reasonable information of what he is called on to answer, by setting forth the constituent averments which, at common law, were necessary to the validity of an indictment.” That the averments of the indictment are fatally defective, see Martin & Minn v. The State, 28 Ala. 71; Regina v. Parker, 3 Adolph & El. (N. S.) 292.</p> <p>2. The court erred in the charge given, and in the refusal of the several charges asked. All the authorities, English and American, in defining the offense of embezzlement, lay down as a fundamental rule, “that the money, or other thing, must not come into the master’s possession before it does iuto the servant’s; for, if it does, the taking of it, whether delivered to the servant by the master or not, is larceny.” — 2 Bishop’s Criminal Law, § 301, and authorities there cited; Bose. Grim. Ev. 446.* The uniform construction thus given to the several English statutes, from 21st Henry VUE, ch. 7, to 7th and 8th George TV, eh. 29, led to the enactment, in 1844, of the state 14th and 15th Victoria, ch. 100, § 13, which gave the jury power to find a verdict for either larceny or embezzlement, as the facts of the case might justify. Our statutes on this subject are borrowed from the English, except that we have no provision similar to their act of 1844; and the distinction between larceny and embezzlement, under this statute, was distinctly recognized in Case v. The State, 26 Ala. Rep. 17. The New York statute, on which is founded the case of Dalton v. The People, 15 'Wendell, 581, is essentially different from ours.</p> <p>1. The indictment conforms precisely to the form prescribed by the Code, and, consequently, must be deemed sufficient.</p> <p>2. Embezzlement is the fraudulent appropriation, by a servant, of goods entrusted to him by his master. — 2Bish. on Criminal Law, 302. The statute was designed to protect employers against the frauds of those in whom they have reposed confidence. The evidence brought the case within the express terms of the statute, and justified the charge of the court. — The People v. Dalton, 15 Wendell, 581; The People v. Sherman, 10 Wendell, 298.</p>

[INDICTMENT FOE GAMING.] Appeal from the Circuit Court of Talladega. Tried before the Hon. Robebt Doughebty.

[action against husband and wife for necessaries furnished family.] Appeal from the Circuit Court of Mobile. Tried before the Hon. Wm. S. Mudd. The complaint in this case was as follows: “Henry Stoddart & Co.h The plaintiffs claim of the vs. [defendants the sum of two Paul F. Eavisies, and j hundred and eighteen 21-100 Virginia Eavisies.

<p>[ACTION ON PROMISSORY NOTE BY ASSIGNEE AGAINST MAKER.]</p> <p>Appeal from the Circuit Court of Russell.</p> <p>Tried before the Hon. E. W. Pettus.</p> <p>This action was brought by Robert B. Murdock, against James Rousseau; was commenced in August, 1854, and was founded on the defendant’s two promissory notes, dated 7th January, 1854, and payable four and six months after date to the order of Strang, Murray & Bruster, by whom they were transferred to the plaintiff. The defendant having died, the suit was revived b j scire facias against his executor and executrix; and his estate having been reported and declared insolvent, a scire facias was issued to 'William E. Barnett, the administrator de bonis non, to show cause why the action should not be revived against him. The administrator de bonis non appeared, and filed four pleas “for answer to the complaint,” the last of which was as follows: “ That the estate of said decedent was decreed to be insolvent by the probate court of said county on the 8th October, 1855; and the plaintiff has not filed his said demand against the estate of the said decedent within nine months from the time when said estate was so declared and decreed insolvent, and that the same has never been filed in said court.” The plaintiff demurred to this plea, on the following grounds: “1. That this suit was commenced and instituted by the plaintiff, against the said decedent in his lifetime, and, after his death, his representatives were duly made parties; and that, after said estate was decreed insolvent, the administrator elected by the creditors was made a party"; that said suit has been pending, from before the death of said James Rousseau, until the present time; and that the facts stated in said plea are not a sufficient bar to a recovery. 2. That said estate was decreed insolvent after the commencement of this suit, and can only be pleaded puis darrein continuance. 3. That said plea presents no sufficient defense in law, but presents an immaterial issue.” The court overruled the demurrer, and the plaintiff then replied as follows: “That this suit was commenced and instituted against the said decedent, at the fall term, 1854; that the said decedent afterwards died, and his representatives were thereafter duly made parties defendant to said suit; that afterwards, to-wit, on the 8th October, 1855, the estate of said decedent was decreed insolvent by said probate court, and William E. Barnett was appointed by said court administrator de bonis non of said estate, and, at this term of the court, was made a party defendant to the suit.” The court sustained a demurrer' to this replication, aud the plaintiff was thereupon compelled to take a nonsuit, with a bill of exceptions; and he now moves to set aside the nonsuit, and assigns as error the rulings of the court on the pleadings.</p>

<p>[ACTION AGAINST COMMON CAUKIEKS FOE LOSS OF COTTON.]</p> <p>Appeal from the City Court of Mobile.</p> <p>Tried before the Hon. Alex. McBjnstey.</p> <p>This action was brought by the appellants, to recover damages for the loss of five bales of cotton, which were shipped at Claiborne, on board of the steamboat Pink Toney, of which the defendants were the owners, consigned to the plaintiffs at Mobile, and never delivered to them. The only plea was the general issue. The rulings of the court on the trial, which present all the points covered by the assignments of error, are thus stated in the bill of exceptions:</p> <p>“ On the trial of this case, the plaintiffs introduced in evidence the bill of lading hereto attached, marked £ exhibit A,’ which is made a part of this bill of exceptions, and proved that it was signed by the clerk of the steamboat Pink Toney; also, that the cotton sued for was delivered to the officers of said steamboat, to be carried from Claiborne to Mobile; that the defendants were the owners of said boat at the time; that the cotton was worth fifty dollars per bale; that the consignees had demanded said cotton of the officers of the boat, who failed to deliver it, saying that it had been burned up. The defendants offered in evidence the depositions of ¥m. P. Lesslie and Elijah E. Bobinson, copies of which are hereto attached, marked ‘exhibits B’ and ‘C.’ The plaintiffs objected to any evidence of a custom that fire was one of the dangers of the river; but their objection was overruled by the court, and they excepted. The plaintiffs objected, also, to each and every part of said depositions, which spoke of a custom to carry cotton on a barge, when a bill of lading had been given to have it transported on a steamboat; which objection was overruled, and the plaintiffs excepted. Said depositions were then read to the jury. -</p> <p>“ The defendants then offered evidence tending to show, that said cotton was put upon a barge which said boat towed in low water, upon which freight was carried; that the risk on the barge was no greater than on the boat; that the insurance offices made no difference between freight on said barge and freight on said boat; that said barge classed A No. 1; and that when cotton was insured on such a bill of lading, the insurance offices .made no difference, in either their rates or liabilities, whether the cotton was put on the boat, or on the barge in tow. There was, also, evidence tending to show, that said steamboat, on her downward trip at the time said cotton was lost, took on board a lot of cotton a short distance above Claiborne, and gave a receipt for it to the effect that it was to be transported on the said boat or barge; that one of the clerks had given a bill of lading, stating that it was- shipped on the boat and barge; and that this, though not the usual practice, was considered as making no difference in practice. There was some evidence tending to show, that the cotton was put on said barge; that said barge took fire before it reached Mobile, and the cotton was destroyed; and that the steamboat came safe to Mobile. There was some evidence tending to show, that the fire was accidental, and that there was no negligence in the officers of the boat. The proof showed, that the cotton on the barge had no cover on it. A witness was asked, on cross examination, if he ever knew of a case like this; to which he replied, that he did not. There was evidence tending to show, that it was the universal practice and understanding, when a boat had a •barge in tow, that the freight was to be put on the barge ■or boat.</p> <p>“ Upon this evidence, the court charged the jury, among ■other things, that if they believed from the evidence that it was the universal practice and understanding on the Alabama river, among persons employed in navigating said river, when a boat had a barge in tow, to put cotton ■on the boat or barge; and that there was not any greater risk to the owner of the cotton by putting it on the barge; and that the cotton on the barge took fire by accident, without any fault or negligence of the officers of the boat, — then they should find for the defendants: that the ■carrier, in such case, -would not be liable for the cotton ■so burnt, because it was put on the barge instead of the boat, if the carrier had conformed to what was the usage of the trade in this respect.</p> <p>“ The plaintiffs excepted to the foregoing charge, and to every part thereof, and then asked the court to charge the jury, that fire was not one of the dangers of the river, within the meaning of the exception of the bill of lading. This, the court said, might be true; but instructed the jury, that if they believed from the evidence that it was the understanding of all parties engaged in the trade of the Alabama river that accidental fire was one of the dangers of the river, and that in the steamboat trade on that river, the words ‘dangers of the river,’ as used in the bill of lading, were understood to include the risk of accidental fire, and not understood or considered by the shippers and others [as] creating a liability for doss by accidental fire, — then the carrier would not be liable for such accidental fire, under the-terms of the bill of lading as so explained, and with such understanding proved; to which charge the plaintiffs excepted.</p> <p>“ The plaintiffs asked the court to charge the jury, also, that if they believed from the evidence that the cotton was not put on the said boat, but was put on a barge, and was destroyed on the barge, then the defendants were liable. [The court refused this charge,] and instructed the jury, that if they believed it was usual and customary in that trade for boats to have such barges in tow at such stages of tlie water, and tbat it was the common understanding that steamboats had the privilege of storing the cotton on the one or the other at their option; and that such practice was universally known and understood by shippers; and that the boat had placed the cotton on the barge in accordance with the usage and custom as understood under such bill of lading, — that the [defendants], would not be liable because of its being put on the barge instead of the boat. Plaintiffs excepted, and now pray the court to sign and seal this bill of exceptions,” &c.</p> <p>The exhibits referred to in the bill of exceptions are not incorporated in the transcript, but there is an agreement of record, signed by the counsel of both parties in this court, to the following effect: “It is agreed,that the depositions of Lesslie and Robinson contained the original bill of lading for the cotton; that said bill of lading recited that the cotton was shipped on the steamboat Pink Toney, and was in the usual form, with the stipulation ‘ dangers of the river navigation excepted,’ (but no clause as to fire;) that the steamboat had a barge in tow, the water being low. The depositions contained evidence conducing to show, that it was usual and customary for boats, in low water, to have and use barges in tow; that this was known to the shipper, who was the warehouseman, and who was present when the cotton was put on the barge; and that it was considered the usual privilege of the boat so to carry it. They went to establish, also, that the usual understanding of the words £ dangers of the river navigation,’ in the bill of lading, included accidental fire in steamboat navigation ; and that the carrier was not liable for fire, under such a bill of lading, by the understanding of those engaged in that trade.”</p> <p>All the rulings of the court to which exceptions were reserved, as above stated, are now assigned as error.</p>

[detinue bt husband and wipe for slaves belonging to separate estate.] Appeal from the Circuit Court of Butler. Tried before the Hon. E. W. Pettus. This case was before this court at its' January term, 1857, when the judgment of the court below was reversed, and the cause remanded. — See 29 Ala. 528. The additional facts disclosed on the second trial, as shown in the bill of exceptions in the present record, are stated in the opinion of the court.

<p>1. Plea of statute of limitations to amended complaint. — When an action is’ commenced before the statute of limitations has effected a bar, and an amendment of the complaint is filed after the completion of the statutory bar, the statute is not a good plea to the amended complaint, since the amendment relates back to the commencement of the suit.</p> <p>2. Retraction of charge, and disclaimer. — If the defendant, in slander, wishes to avail himself of the statutory privilege (Code, § 2221) of proving, in mitigation of damages, a retraction of the charge before suit brought, he must bring himself within the express terms of the statute : a public disclaimer by him, after suit brought, of any intention to charge plaintiff with the crime imputed by his words, is not admissible evidence, either in defense of the action, or in mitigation of damages.</p> <p>3. Emdence in mitigation of damages. — The fact that the defendant, in other conversations relative to the subject-matter of the slanderous words, spoke of the plaintiff in terms less offensive, or declared that he did not believe him guilty of the charge imputed to him, is not admissible evidence in mitigation of damages.</p>

[MOTION AGAINST CONSTABLE FOB FAILURE TO MAKE MONET ON EXECUTION.] Appeal from tbe Circuit Court of Lowndes. Tried before tbe Hon. E. W. Pettus. This was a motion for a summary judgment against 'William Atkinson and tbe sureties on bis official bond as constable, for bis failure to make tbe money on an execution wben by due diligence be might bave made it, and was commenced in a justice’s court.

<p>{DETINUE FOR SLAVES, BY WIFE'S ADMINISTRATOR AGAINST SURVIVING HUSBAND.]</p> <p>Appeal from the Circuit Court of Dallas.</p> <p>Tried before the Hon. JoiiN Gill Shortek.</p> <p>This action was brought by the administrator of Mrs. Jemima G. Johnson, deceased, against her surviving husband, William Johnson, to recover certain slaves, together with damages for their detention, which the plaintiff claimed as the separate estate of bis intestate, under the will of ber father, George Phillips. The defendant pleaded, in short by consent, non detinet, and ne unques administrator.</p> <p>The will of said George Phillips, which was dated in September, 1834, and admitted to probate in Dallas county on the 12th October, 1835, contained the following (with other) provisions: “ It is my will and desire, that all my just debts be first paid, and the remainder of my estate, both real and personal, to be managed and distributed as follows, within one year after my decease: the whole of my estate, both real and personal, to be appraised by disinterested persons on oath, and to be equally divided amongst my beloved wife and my eight children, share and share alike, viz: ” (mentioning the names of the children, and with the rest Mrs. Jemima G. Johnson, then the wife of the defendant.) “It is .further my will and desire, that the shares, or dividends, that may be allotted by said division to my different daughters, shall vest absolutely in them and their respective heirs of their bodies forever.”</p> <p>It was proved that, on the division of the testator’s property, in December, 1835, under the provisions of his will, some of the slaves sued for in this action were allotted to Mrs. Johnson, and went into the possession of her and her husband; that the others in suit were the descendants of those so allotted to her ; that Mrs. Johnson died in May, 1837 ; aud that all of said slaves remained in the possession of the defendant, from that time until the commencement of this suit. “ The plaintiff offered to prove to the court, by William S. Phillips, who drew said will, that the testator, who was his father, had for many years kept a will provided, to be ready iu the event of his death; that at the time said will above set out was executed, he had another will in' his possession, which made the same disposition of his property, except that it did not contain this clause: ‘ It is farther my will and desire, that the slaves (?) which may be so allotted to my several daughters, on such division, shall vest absolutely in th'em and the heirs of their respective bodies forever; that said will was then destroyed, and this will'was prepared to supply the deficiency in .that; that Mr. Blevins bad persuaded tbe testator that it was his duty to so make his will as to secure the property intended for his daughters to their separate use, and to their children; and that it was under the influence of this persuasion that he made his will in its present form, and changed his previous intention as declared in said will. The court refused to allow said proof to be made, either to the court or to the jury; and ruled, that the words of the will were unambiguous, ánd had a fixed, legal signification, which could not be explained, interpreted, or controlled by the parol evidence; to which ruling of the court the plaintiff excepted.”</p> <p>On all the evidence adduced, the court charged the jury that, if they believed it, they must find a verdict for the defendant; to which charge the plaintiff excepted. In consequence of these adverse rulings of the court, which are now assigned as error, the plaintiff was compelled to take a nonsuit, which he now moves to set aside.</p>

[EETINDE FOE SLAVES.] Appeal from the Circuit Court of Coosa. Tried before the lion. E. W. Pettus.

<p>1. When chancery court will compel execution of testamentary trusts in favor cf shres. Whore au executor is directed by his ¡testators will to carry certain slaves to a non-slaveholding State for the purpose of emancipation, the chancery court here will recognize his authority to execute the trust, and, if he voluntarily submits his administration to the court, might possess the power to-enforce its execution ; butthe slaves themselves cannot enforce the execution of such trust; nor can they, after their removal by the executor to a non-slaveholding State, under an agreement between the legatees and distributees of the testator, maintain a bill hero for the recovery of a «pecuniary legacy, which the will directed the executor to deposit in a foreign bank for'their benefit after their removal, when it appears that, prior to .their removal, the executor had made a final settlement and distribution of the estate before the probate court, and had been discharged by its decree.</p>

[RETINUE FOE SLATE, BY ADMINISTRATOR de bonis non against porchasee from ADMINISTRATOR IN ’CHIEF.] Appeal from the Circuit Court of Dallas. Tried before the Hon. E. ~W. Pettus. This action was brought by James L. Evans and Thos. G-. Port-is, against Edward Ikolheimer.

[action against county eor MEDICAL services rendered'to paupers.} Appeal from the Circuit Court of Autauga. Tried before the Hon. C. W. Eapiek.

[BILL IN EQUITY AGAINST ADMINISTRATOR; POR ACCOUNT, SETTLEMENT, AND DISTRIBUTION OP ESTATE.] Appeal from tbe Circuit Court of Dallas. Heard before tbo Hon. James B. ClaRK.

<p>1. Constitutionality of redemption law. — The redemption law of 1842, (Olay’s Digest, 602, § —,) in its operation upon pre-existing mortgages, is not vio-lative of the provisions of the State and Federal constitutions respecting laws which impair the obligation of contracts.</p> <p>2. Proof of tender. — where three witnesses testify to the amount tendered, each specifying a different sum, the complainant’s only witness, who was the agent by whom the tender was made, cannot be considered discredited by the other two, when no sufficient reason is shown for doubting his integrity, and it does not appear that any special circumstances existed which were calculated to impress the facts on the memory of the others.</p>

[ACTION ON LOST BOND, BT TKANSFEIÍREE AGAINST OBLIGOR.] Appeal from tbe City Court of Mobile. Tried before tbe Hou. Alex. McBjnstby. The complaint in this case, as amended, was as follows: “W. Leroy Mason v Tbe plaintiff claims of the dews. Ifendant the sum of $483 65, due by Andrew Grlassell.

[BILL IN EQUITY FOB INJUNCTION OF TBESPASS ON LANDS.] Appeal from the Chancery Court at Claiborne. ■Heard before the Hon. Wade Eexes. The bill in this case was filed by Mrs. Bmeline E. Thomas, the wife of Nathan II. Thomas, who sued by her next friend, against Robert I). James, said Nathan II. Thomas, and others; and sought to restrain the defendant James from cutting steamboat-wood on- certain lands which the complainant claimed as part of her separate estate.

[action to recover damages for false imprisonment.] Appeal from tbe Circuit Court of Dallas. Tried before tbe Hon. JoHN Gill Shorter. The complaint in this case was in these words : “James T. Burnett,\ The plaintiff claims of the dews.