Volume 33 — Alabama Reports

Tried before the Hon. Alex. McKinstry. This action was brought by Lyman S. Crandall, against the appellant, to recover the value of certain drugs, medicines, &c., which were destroyed by fire while covered by a policy of insurance effected with the appellant.

Heard before the Hon. Wade Keyes. This bill was filed by Redding Byrd, the appellant, on the 15th September, 1846, against the administrator of… Held: until his death, in subordination to the mortgagor’s right of redemption. Herbert v. Hanrick, 16 Ala. 581; Gunn v. Brantley, 21 Ala. 633; Boyd v. Beck, 29 Ala. 703; Kane v. Blood-good, 7 John. Ob. 90; Benje v. Creagh, 21 Ala. 151. The case of Sims v. Canfield, 2 Ala. 555, relied on by the appellee’s counsel, is not analogous.

<p>Appeal from the Circuit Court of Tallapoosa.</p> <p>Tried before the Hon. C. W. Rapier.</p> <p>This action was brought by Wilridge C. Thompson, against Joseph C. Rawles, and was commenced in March, 1852; the cause of action being a promissory note, of which the following is a copy:</p> <p>“ One day after date, I promise to pay W. C. Thompson, or bearer, two hundred and fifty dollars, for value received, February 28, 1848. J. C, Rawles.”</p> <p>It appeared from the evidence adduced on the trial, as the same is set out in the bill of exceptions, that the plaintiff' and one Devereux, in February, 1837, sold to one A. Livingston, through his agent William Dick, a certain tract of land', or their interest therein; and executed a receipt to said Livingston or Dick in these words:</p> <p>“Received from William Dick one thousand dollars in cash, and a note on Aaron Livingston for one thousand dollars, payable the first day of January next, with the understanding that five hundred dollars is to be paid by the first day of January next, for our interest in a certain tract of land; and, at a convenient time, we promise to execute a bond ‘to refund the amount paid us, provided the title to said land should not prove to be in us. This 28th February, 1837.” (Signed by said Thompson and Devereux.)</p> <p>This instrument was assigned to said Rawles, by one Robert Watson, - the agent of Livingston, by a written endorsement in these words: “I do hereby transfer the within bond to J. C. Rawles, for A. Livingston, this 25th March, 1842;” which was signed by said Watson.</p> <p>The tract of land referred to was an Indian reservation,, and the title proved not to be in Thompson and Devereux. Thompson stated, in answer to interrogatories propounded to him by the defendant, that “ the condition of the note sued on ” was as follows: “ At the time said note was. given, affiant met with defendant in the city of Montgomery ; and defendant then stated to him, that he held the bond of affiant and Devereux, given to Aaron Livingston, and that it had been transferred to him. Affiant offei’ed to pay him $250 for said bond. Defendant looked for said bond, and said he could not find it. Affiant then told him, that if he would get up the bond, and deliver it to affiant within twelve months, he would give him $250. Defendant said, he could and would do so; that he knew where Livingston was, and could get the bond from him, if he himself did not have it, within much less time than twelve months. Upon these representations and promises of the defendant, affiant advanced $250 to him, and took from him the note sued on, which,, with the interest thereon, was to be repaid to (?) unless the defendant got up and delivered said bond.” The plaintiff further stated, that the “bond” above referred to was not the receipt of himself and Devereux above copied, but a bond which they had executed to Livingston as stipulated in said receipt; and .that the -defendant had never procured and delivered mp 'the bond. On the part of the defendant it was contended, and evidence was adduced by him tending to show, that the “bond” referred to was the said receipt, and that no other bond was ever executed to Livingston by Thompson and Devereux.</p> <p>During the trial, the defendant .offered to read the deposition of Livingston. The plaintiff >objected to it, on the ground that the witness was incompetent from interest. The court overruled the objection, because it came too late, and allowed the deposition to be read as evidence to the jury; and the plaintiff' excepted.</p> <p>The defendant offered in evidence a letter written by Livingston to the plaintiff, (but not shown to have ever been in the plaintiff’s possession,) dated .the 28th May, 1852, and in these words:</p> <p>“Dear Sir: I am informed by Mr. J. C. Rawles, that you are of the opinion that you and J. Devereux gave me a bond to refund the one thousand dollars which was paid you by William Dick for the ‘ Sally ’ tract of land. Now, I assure you that there never was any bond given, more than the receipt acknowledging the receipt of the money, which is now the property of Mr. J. -C. Rawles ; -and further, if there ever was one given, I have no recollection of it; and as you seem to apprehend there was, I now again relinquish all the right I have -or may have had to J. C. Rawles.”</p> <p>The court allowed this letter to he 'read to the jury, “ not as evidence of the facts therein stated, that no bo-nd to refund bad been given t© Livingston, &c., but as evidence of a transfer or relinquishment of Livingston’s right to the defendant; ” and the plaintiff excepted.</p> <p>There were several other exceptions to the rulings of the court on the evidence, wbidh require no notice.</p> <p>“The court charged the jury, among other-things, that if they believed from the evidence that the two hundred and fifty dollars, for which the note sued on was given, was intended by the parties as a payment to the defendant for his interest, legal or equitable, in the paper receipt herein above set forth, and in discharge of the plaintiff’s liability arising upon it, or of the liability of the plaintiff and Devereux; and if the note sued on was executed and delivered, with the understanding between the parties, that it was not to be valid or binding, if the refunding bond provided for by the receipt was taken up by the defendant, for the plaintiff, within the time agreed on between them; and that no such bond was ever given or existed,—then the note was without consideration, and the plaintiff was not entitled to recover.”</p> <p>The plaintiff excepted to this charge, and he now assigns it as error, together with the rulings of the court on the evidence'.</p>

<p>[JTNAl SETTLEMENT AND DISTBIBDTION OE DECEDENT’S ESTATE.]</p> <p>1. Appeal tried on bill of exceptions.—An appeal from a decree of the probate court, rendered on the final settlement of an administrator’s accounts, is required to be tried on the bill of exceptions, (Code, § 1891;) consequently, the appellate court will not look to other parts of the record, for supposed errors not disclosed by the bill of exceptions.</p> <p>2.' Specific objection to deposition.—A motion to suppress a deposition on a specified ground is a waiver of all other grounds ot objection.</p> <p>3. Objection to deposition good in pari only.—A motion to suppress two depositions, on a specified ground which is not well taken as to one of them, may be overruled entirely.</p> <p>4. Construction of bill of exceptions.—In a probate case, tried before the court without the intervention of a jury, a recital in the bill of exceptions, that the appellants “ objected to the 5th volume of Porter’s Reports,” which was “ offered and read in evidence” by the appellee, “ being read for the purpose of proving any fact or facts; but the court overruled their objection, and they excepted,”—is not sufficient to show that the volume was read in evidence for the purpose of proving any fact or facts.</p>

<p>Appeal from the Circuit Court of Sumter.</p> <p>Tried before the Hon. John E. Moore.</p> <p>This action was brought by William J. Cockerell, against Robert L. Brown, and was commenced on the 10th April, 1857. The land in controversy consisted of a small tract, containing about five acres, which the plaintiff claimed as a part of section 19, in township 20, range 2 west, and which the defendant claimed as part of section 30 in said township and range; the said sections adjoining each other, and the controversy turning on the location of the boundary line between them. The material facts of the case, so far as they relate to the questions here presented for revision, may be thus stated:</p> <p>Section 19 lies directly north of section 30. In 1841, the south half of section 19 belonged to one Emerson Cockerell, a brother of the plaintiff; while the north-east quarter of section 30 then belonged to George A. Brown, who was a brother of the defendant, and the north-west quarter to one W. R. Richardson. Daring that year, Emerson Cockerell and George A. Brown, by agreement, had the section line between them run by the county surveyor; the plaintiff in this suit and said Richardson being the chain-bearers. The line thus established was adopted by the parties as the dividing line between them, and a dividing fence was jointly constructed by them upon or near it; each party building his half of the fence on his own land, and connecting the two portions where they met by a lock, or panel run diagonally from one to the other; and this fence has remained ever since. At the time of this survey, there was a dividing fence between Emerson Cockerell and Richardson, which run on or near the section line between them as shown by the marks left by the United States surveyors. In 1843, while Richardson was still in possession of his quarter-section, and cultivating up to the division fence between him and Emerson Cockerell, he sold and conveyed by deed to the defendant in this suit; and in 1845, George Brown, being still in possession of Ms quarter-section, and cultivating up to the dividing fence between him and Emerson Cockerell, also sold and conveyed to the defendant. More than ten years before the commencement of this suit, but at what precise time the record does not show, Emerson Cockerell sold and conveyed his land to the present plaintiff. Under these conveyances, the plaintiff and defendant took possession of their respective tracts, cultivated up to the dividing fence between them, and exercised other acts of ownership. In February, 1856, a dispute having arisen between them about' their stock trespassing, the defendant, at the request of the plaintiff, had the line again run by the county surveyor; and the line thus established throws the land now in controversy within the plaintiff’s section. The defendant was present at this survey, and expressed himself dissatisfied with it; but he did not have the line again run by another surveyor, as the plaintiff had told him he might do if dissatisfied.</p> <p>On these facts, the defendant asked the court to give the following charges :</p> <p>“1. If the jury believe that Emerson Cockerell and George A. Brown had the line in dispute surveyed in 1841, and agreed upon the line, and built a joint fence upon the line agreed on; and that the defendant, and those under whom he claims, have ever since been in possession of the lands on his side of the line and fence so agreed on, they must find for the defendant.</p> <p>“2. lithe jury believe from the evidence that, more than ten years before the commencement of this suit, there was a fence from one end of the section corner to the other, along or near the line,- except a small strip between the corner of Richardson’s fence and 'the half-way corner of George Brown’s fence; and that the defendant, more than ten years before the commencement of this suit, completed said strip of fence, so as to make it continuous from corner to corner, and has ever since been in possession of all the land on his side of said fence, exercising acts of ownership over it, with the knowledge of the plaintiff, or those under whom he claims title; and that the plaintiff, or those under whom he claims title, had such knowledge more than ten years before the commencement of this suit, they must find for the defendant.</p> <p>“ 3. If the jury believe from the evidence that the defendant, or those under whom he claims title, more than ten years before the commencement of this suit made a dividing fence, on or near what was supposed to be the dividing line of the two sections, and has ever since been in possession of the land on his side of said fence and line, cultivating the same, and exercising acts of ownership over it, they must find for the defendant.</p> <p>“ 4. If the jury believe the last-mentioned facts from the evidence, no verbal agreement of the defendant in 1856 to another survey would be so far binding as to enable the plaintiff to recover any land found by such survey to belong to him on the defendant’s side of the line so agreed on.”</p> <p>The court- refused to give either oue of these charges, “without the following qualification: ‘If the evidence shows that the land in controversy belonged to the plaintiff, and to those through whom he claims, and the defendant would defeat that claim by an adverse possession of ten years, he (the defendant) must, to entitle him to such a plea, show that his possession has been notorious, uninterrupted, and under an adverse claim of title, for said period of ten yearsand did give them, of its own motion, with said qualification.”</p> <p>The refusal of the several charges asked, and the qualified charges given, to which the defendant excepted, are now assigned as error.</p> <p>I. The first charge asked should have been given without qualification, because—</p> <p>1. A parol agreement between two proprietors of adjoining lands, to employ a surveyor to run the dividing line between them, which agreement is executed, and possession held accordingly for the period prescribed by the statute of limitations, or even for a long time short of that period, is binding and conclusive on the parties and those claiming under them.—Boyd v. Graves, 4 Wheaton, 513; Smith v. McAllister, 14 Barbour, 434 ; Lindsay v. Springer, 4 Harrington, (N. J.) 547; Spaulding v. Warren, 25 Vermont, 316; Wilson v. Hudson, 8 Yerger, 398; Moody v. Nichols, 16 Maine, 23; Boston Railroad v. Sparhawk, 5 Metcalf, 469; Riley v. Griffin, 16 Geo. 142; Brown v. Edson, 23 Vermont, 436; Hobbs v. Cram, 2 Foster, (N. H.) 130; Mosher v. Berry, 30 Maine, 90; Ackley v. Buck, 18 Vermont, 396; Rockwell v. Adams, 6 Wendell, 467; Gilchrist v. McGee, 9 Yerger, 45; Beecher v. Parmele, 9 Vermont, 352; Burton v. Lazell, 16 Vermont, 158; Berry v. Garland, 6 Foster, (N. H.) 473; Jackson v. McConnell, 12 Wendell, 421; Rockwell v. Adams, 7 Cowen, 761; Blair v. Smith, 16 Missouri, 273; Jackson v. Van Cortlandt, 11 Johns. 137; Orr v. Foote, 10 B. Monroe, 392.</p> <p>2. The defendant having been in possession more than ten years, with the knowledge of the plaintiff and those through whom he claimed, had thereby acquired a title under the statute of limitations.—Clay’s Digest, 329, § 93, in connection with Session Acts 1853-4, p. 71; Bawls v. Kennedy, 23 Ala. 240; Iiallett v. Forest, 8 Ala. 264; Stein v. Burden, 24 Ala. 130. And the title thus acquired could not be lost by the defendant’s parol declarations. Stuyvesant v. Tompkins, 9 Johns. 61; Nichol v. Lytle, 4 Yerger, 456; Moody v. Nichols, 16 Maine, 23; Daniel v. Ellis, 1 A. K. Mar. 61; Gilchrist v. McGee, 9 Yerger, 455.</p> <p>II. The second charge asked should have been given, because the facts assumed in it, which were established hy the evidence, constituted adverse possession; and that commenced when the plaintiff, or his vendor, knew that the defendant was in possession of the land, exercising acts of ownership over it,—which was more than ten years before the commencement of the suit.—2 Smith’s Leading Cases, by Hare & Wallace, 560-68; Herbert v. Hanrick, 16 Ala. 594; Bryan v. Weems, 29 Ala. 423.</p> <p>III. The third and fourth charges should have been given as asked, for the reasons above assigned.</p> <p>TV. The qualification annexed by the court to the several charges asked, should not have been given. In addition to the reasons above stated, the qualification was erroneous, 1st, because it left the jury to say what constituted an adverse possession, when that is a question of law; 2dly, because it asserts that the defendant’s possession must have been “ under an adverse claim of title,” when color of title was sufficient, and was clearly shown; 3dly, because it confined the adverse possession to the defendant alone, when he had a right to connect his vendor’s adverse possession with his own in order to complete the statutory bar; and, 4thly, because it required that the possession should be notorious, when there was evidence from which the jury might properly have inferred notice, which would have dispensed with the necessity of notoriety.—Authorities last cited. The qualification was, moreover, too comprehensive, in excluding from the jury a material portion of the defendant’s evidence.</p> <p>—1. The first charge asked was properly refused, because (if for no other reason) it was partly abstract. The title to the land in controversy involved the location of the boundary line between the two sections, embracing both the north-east and the north-west quarters of section 30; while the agreement between Emerson Cockerell and George Brown applied only to the boundary line of said north-east quarter.</p> <p>2. The second charge asked was also abstract, inasmuch as it assumed the existence of a fact not proved, to-wit, that the plaintiff or his vendor had knowledge of the possession by the defendant and those under whom he-claimed.</p> <p>3. The principle embraced in the several charges asked, is, that a simple possession of land, per se, not shown to be adverse, or under claim of title, is sufficient,, if continued for ten years, to make the statute of limitations an available defense. The principle involved in the charges-as qualified and given,-is, that such possession, to be available, must be notorious, uninterrupted, and under an-adverse claim of title. It is submitted, that the rulings of the court are correct, and sustained by the following authorities: Herbert v. Hanrick, 16 Ala. 595; Badger v. Lyon, 7 Ala. 567; and authorities cited in Herbert v. Hanrick, supra.</p>

<p>Appeal from the Circuit Court of Butler.</p> <p>Tried before the Hon. Nat. Cook.</p> <p>This action was brought by Sarah K. Deens, against ~W. A. T. Dunklin and J. It. Hartley; was commenced on the 28th October, 1857; and was founded on the defendants’ promissory note for $800, dated December 22d, 1854, payable on or before the 1st January, 1856, to the plaintiff or bearer, and purporting on its face to have been given for the hire of two slaves, Abe and Jake, for the year 1855. The pleas were, “ 1st,.the general issue ; 2d, former judgment; 3d, former recovery; 4th, payment; 5th, set-off; 6th, tender; and, 7th, fraud;” all of which were pleaded “in short by consent.” The cause was tried on an agreed statement of facts, which was as follows:</p> <p>“ The note sued on was given to the plaintiff for the hire of two slaves, Abe and Jake, for the year 1855; the services of each being valued at $150. The sum of $151 was paid on said note, on the 2d February, 1856; which was the price agreed on for the hire of Jake, together with the interest thereon; and this is the only payment ever made on said note. The said slaves were hired to cut logs, and to work about a steam saw-mill in Covington county, belonging to the defendants. * About one month after they were hired, and had begun to work at said mill, the boy Abe was killed by the machinery of said mill. Some time during the year 1855, and before said note fell due, the defendants tendered to the plaintiff in specie the full amount of the hire of Abe for the year 1855, to-wit, the entire amount of the note sued on so far as the hire of Abe constituted the consideration thereof, being the whole of it except that part paid and credited as aforesaid; but the plaintiff refused to receive any part of it. The defendants again tendered to the plaintiff in specie, at the time of the payment of said $151, the whole amount due on said note, with the interest thereon; but the plaintiff refused to receive any part of it, except the $151 for the hire of Jake as aforesaid. The plaintiff then brought au action of trover against the defendants, in the circuit court of Covington, to recover the value of Abe, who had been killed as aforesaid ; alleging that said negro had been killed by defendants’ wrongful act, while hired to them as aforesaid; and prosecuted said suit to a final trial on the merits, which resulted in a verdict for the defendants, at the spring term of said court, 1857. Upon said trial, the issue between the parties was, whether said slave was killed by the defendants’ wrongful act; and upon this issue the jury returned a verdict for the defendants, as above stated. In order to defend themselves against said suit, the defendants were compelled to employ counsel, at a heavy expense; and they were thus forced to pay out, for attorneys’ fees and other necessary expenses, the sum of $200, which they never would have had to pay but in consequence of the plaintiff’s refusal to receive said money when tendered, and prosecuting said action of trover against them. The defendants never refused, but were always ready and willing, to pay the whole balance due on said note, with the interest thereon, until after the plaintiff had prosecuted said action of trover against them to a final hearing; after which, to-wit, on the 1st October, 1857, the plaintiff demanded of them the balance due on said note, and they refused to pay the same, and still refuse to do so. This suit was brought to recover the balance due on said note, being the hire of Abe, with interest thereon, and for no other demand.”</p> <p>“ This being all the evidence in the cause, the court charged the jury, that if they believed the evidence, the plaintiff could not recover anything in this action, except the hire of Jake from the 1st January, 1855, up to the time when he was killed; to which charge the plaintiff excepted,” and which she now assigns as error.</p>

Tried before the Hon. Tuos. A. Walker. This proceeding was instituted against Lorenzo James, before a justice of the peace, to recover the statutory penalty for a default in not working on a public road. The justice having rendered a judgment against the defendant, the latter sued out a certiorari before the probate judge, and removed the proceeding into the circuit court.

Heard before the Hon. James B. Clark. This bill was filed by Leonora P. Morris, an infant suing by her next friend, against the executrix of Pearce A Lewis, deceased, who was the complainant’s grandfather; and sought the specific execution of a contract, entered into between said Lewis and the complainant’s father, the material stipulations of which, as alleged in the bill, were these: In 1843, shortly after the death of the complainant’s mother, who was a daughter of said…

■ Heard before the Hon. James B. Clark. The original bill in this case was filed, on the 27th February, 1845, by William Q-.

Heard before the Hon. James B. Clark. This bill was filed by David Cothran, the appellant, against the heirs and administrator of William McCoy, deceased, and sought to establish au implied trust in a certain quarter-section of land, to which the said William McCoy had a pre-emption claim at the time of his death, and which was afterwards entered in his name by his administrator, with money advanced to him for that purpose by said Cothran and one John Lay, who had married a…

Tried before the Hon. E, W. Pettus. The appellant in this case, having obtained a judgment against the mayor and aldermen of the city of Wetumpka, on the 16th October, 1854, afterwards.sued out a garnishment against Joseph B. Hart, as the debtor of said corporation ; making oath, before the clerk of the circuit court of the county, “that said Joseph B. Hart is supposed to be indebted to, or have in his possession, or under his control, effects belonging to said defendant;…

¥m. M. Brooks, late judge of the first judicial circuit, to restrain further proceedings under certain orders of said judge alleged to be unauthorized. The petitioners were Sarah Peterson, Tabitha Peterson, Thos.

Tried before the Hon. S. D. Hale. ' This action was brought by Seaborn Anderson, against William Parmer, to recover damages for the false and malicious speaking by the defendant, of and concerning the plaintiff, of certain words alleged to be “ in substance as follows: ‘ Seaborn Anderson bas stolen three of my negroes, and has them locked up iu his house; ’ ‘ Seaborn Anderson stole my negroes, and I intend to prosecute him, and put him in the penitentiary for ten years; ’ 1…

Tried before the Hon. John E. Moore. This action was brought by Mrs. Georgiana Myers, against the executors of her deceased husband, Claiborne Myers, to recover the hire of twenty negroes which were bequeathed to the plaintiff by her said husband.

Tried before the Hon. S. D. Hale. This action was brought by Cornelius Eobinson, against Eobert C. Collins, to recover several city lots in Montgomery, and was commenced on the 9th January, 1854.

Heard 'before the Hon. Wade Keyes. This bill was filed, in October, 1855, by Mrs. Partbenia Mims, a married woman, suing by her next friend, against Stanford Mims, her husband.

Tried before tlie Hon. John E. Moore. This action was brought by James E. Bates, as the administrator de bonis non of Thomas Bates, deceased, against Joseph Bates, and was commenced on the 3d May, 1849.

Tried before the Hon. S. B. Hale. This action was brought by A. C. Elewellen & Co., against John W. W. Brake, and was founded on a promissory note, of which the following is a copy : “ Columbus, Ga., Jan. 1, 1853. “ $805,87.

Tried before the Hon. E. W. Pettus. This action was brought by Joseph Eutledge, against Alexander J. Gotten, the probate judge of said county, to recover the statutory penalty (Code, § 1953) for issuing a marriage license to a minor without the consent of the parent or guardian.

Tried before the Hon. John Gill Shorter. This action was brought by the appellees, in October, 1851, “ to recover damages for the defendant’s negligence and carelessness in permitting the rain-water to run upon plaintiffs’ lots, Nos. 1, 2, 9 and 10 in square No. 2, known as the Bibb & Nickels warehouse, from-street in the city of Montgomery, and thereby washing and undermining plaintiffs’ said lots, and injuring the same.” The case was before this court at its January term,…

Heard before the Hon. Wade Keyes. The bill in this ease was filed by the appellants, on the 21st September, 1849, and sought to reach assets in the hands of the defendant, Henry F. Sterns, as the administrator of William Thomas, deceased, who was the administrator in chief of Joseph Thomas, deceased, and to have such assets subjected to the satisfaction of several judgments at law, which the complainants had obtained against George Stonum, as the administrator de bonis non…

In the matter of the last will and testament of Ephraim Pool, deceased, which was propounded for probate by George L. Stewart, the executor therein named. The record does not show by whom the probate was contested, nor what the grounds of contest were. The bill of exceptions is so confused, (and many portions of it illegible,) that it is impossible to state the substance of the evidence adduced on the trial.

Heard before the Hon. Wade Keye^. The bill in this case was filed by the appellants, Seneca A. Saltonstall and Louisa, his wife, against Archibald W. Gordon and Richard H. Redwood.

Heard before the Hon. Wade Keyes. This bill was filed by Mrs. Isabella Abernathy, suing by her next friend, against Meredith B. Abernathy, her husband, and James K. Whitman; and sought to recover certain slaves, which the complainant claimed as a part of her separate estate, and which were in the possession ot the defendant Whitman, and to have her husband removed from the trusteeship of her separate estate.

Tried before the lion. John E. Moore. The complaint in this case was in these words: “ Hewitt, Norton & Co. ~j The plaintiffs claim of the vs. V defendant the sum of four hunJames T. May.

Tried before the Hon. E. W. Péttus. This action was brought by Caroline Smith, an infant suing by her next friend, against James M. Gaffard, The words charged in the complaint were as follows : “ Caroline Smith lost a young one, or miscarried ; it took place at Jack Smith’s, and Mrs. Hawkins was sent for, but it was all over when she got there.” “ Caroline Smith has lost a young one; Mrs. Hawkins was sent for, but it was all over when she got there.” “ Mrs. Hawkins told me,…

Heard before the Hon. James B. Clark. This hill was filed by Simeon Rogers, the appellant, against the administrator of his deceased wife, alleging, in substance, that he and his deceased wife were… Held: in the case of Weems v. Bryan and Wife, 21 Ala. 302, 308, to retroact upon the estate of the wife, so as to entitle the husband to its income.

Tried before the Hon. C. W. Rapier. This action was brought by Edwin A. Glover, against H. C. Grayson and Mrs. Emeline Grayson, and was founded on the defendants’ promissory note for $500, dated January 29, 1853, payable on or before the 1st January, 1855, with interest from the 1st January preceding, to William Glover or bearer, by whom it was endorsed to the plaintiff.

<p>[ACTION AGAINST HUSBAND AND WIFE FOR ARTICLES OF FAMILY SUPPLY.]</p> <p>1. Sufficiency of appeal bond.—Where a married woman takes an appeal, from a judgment íd an action at law against her and her husband, she may execute an appeal bond in her own name, without joining her husband.</p> <p>2. Service of summons.—In an action against husband and wife, if the sheriff’s return shows that the summons was not executed on the wife, and there was no appearance by her, the judgment against both will be reversed on error.</p>

Heard before the Hon. James B. Clark. This bill was filed by Mrs. Susan M. Wray, suing by her next friend, against her husband, Albert G. Wray,, and sought a decree for alimony. The parties to the suit are the same as to the ease reported in 19 Ala. 522, which was an application by Mr. Wray for a divorce, on the ground of adultery committed by his wife.

<p>Appeal from the Chancery Court of Erauklin.</p> <p>Heard before the Hon. John Eoster.</p> <p>The facts of this case will he readily understood from the briefs of counsel, and the opinion of the court, in connection with the former report in 28th Ala. 521-29, The counsel of both parties submitted very elaborate arguments, tbe great length of which prevents their insertion in the report. The annexed abstracts show only the points made and the authorities cited.</p> <p>1. The chancellor erred in overruling the application of the defendants below for leave to take additional testimony, and also for leave to file a cross bill for discovery. Keenan v. Strange, 12 Ala. 292; Lyon v. Bolling, 24 Ala. 763; Beach v. Fulton Bank, 2 Wendell, 225.</p> <p>2. The chancellor erred, also, in overruling the defendants’ exceptions to the master’s report, and in decreeing in favor of the complainant. The bill should have been dismissed, because the proof showed that the plaintiff had forfeited all claim to relief, if he ever had any, by his failure to disclose that he had received partial indemnity from Barton. So far from disclosing this important fact, the bill alleges, “ that Barton died insolvent, without making provision for the payment of any fart of said debts ; ” and that, unless the complainant “got the benefit of the set-off claimed by him, it would be a total loss to him.” It is a fundamental maxim of the chancery court, that a party asking relief must come before it “with clean hands and a clear conscience;” and again, that “ he who is guilty of iniquity shall not have equity; ” and again, that nothing can call the powers of the court into active exercise, “ but conscience, good faith, and reasonable diligence.” For analogous cases, in which the court refused relief, because the party complaining was guilty of fraud or want of good faith, see Overton v. Perkins, Martin & Yerger, 371; Kennedy v. Kennedy, 2 Ala. Rep. 572 ; Dabney v. Green, 4 Hen. & Mun. 109 ; Brantley v. West, 27 Ala. Rep. 552; Pierce v. Partridge, 3 Mete. 44; Fairfield v. Baldwin, 12 Pick. 388; M. E. Church v. Jacques, 3 John. Ch. 117; Taylor v. Harwell, 5 Humph. 331; 2 Vesey, 289 ; 1 Vernon, 452; 1 P. Wms. 731; 2 P. Wms. 748; Wells’ Ex’r v. Bransford, 28 Ala. 200; 7 Mon. 465; 4 Peters, 184 ; 1 Fonb. Eq. 25, 139-40, 327, note; Adams’ Eq. 175; 2 Story’s Eq. § 61; Askew v. Hooper, 28 Ala. 635.</p> <p>3. The former opinion pronounced by the court in this case is not conclusive on the points now presented. The former appeal was taken from a decree of the chancellor dismissing tbe bill for want of equity. The jurisdiction of the supreme court, as conferred and limited, by the constitution, is appellate only. It has no power, on appeal from a decree dismissing the bill for want of equity, to decide the cause upon its merits, for this would be the exercise of original jurisdiction. The effect of the former decision was simply to reverse the chancellor’s decree, and to reinstate the cause in the court below for further proceedings not inconsistent with the principles there settled. That decree was interlocutory merely, and does not conclude the court on the present appeal, which brings up the whole case for revision, from examining any error or mistake oí law or fact.—Keenan v. Strange, 12 Ala. 292; Brown y. Lang, 14 Ala. 722 ; Price v. Nesbitt, 1 Hill’s (S. C.) Ch. 452-65; Pearson v. Damngton, 18 Ala. 352; Moore v. Barclay, 23 Ala. 750; 1 Bailey’s Ch. 98 ; Harwood v. Oglander, 6 Yesey, 225; Curtis v. Curtis, 2 Bro. C. C. 629 ;• Roberts v. Salisbury, 3 Gill & L 425; Hagthorp v. Hook, 1 Gill & J. 270 ; Daniels v. Taggart, 1 Gill & J. 311; Claggett v. Crawford, 12 Gill & J. 275; Snowden v. Dorsey, 6 Har. & J. 114; Walker v. Forbes, 31 Ala. Rep. 9; 10 Yesey, 34; 17 Johns. 548; 16 Johns. 415; 2 Cranch, 33; 2 Atk. 438; 1 Johns. Ch. 88 ; 1 Sneed, 101; 12 Yes. 458 ; 2 Madd. Ch. 351; 3 Hen. & Munf. 243; 3 Call, 243.</p> <p>1. That the application for leave to take new testimony came too late.—2 Dan. Ch. Pr. 1134, note ; ib. 1136, note ; Hamersly v. Lambert, 2 Johns. Ch. 428; Wood v. Mann, 2 Sumner, 316; Moody 'v. Payne, 3 Johns. Ch. 294; Johnston v. Glasscock, 2 Ala. 249 ; Grier v. Campbell, 21 Ala. 328; Gray v. Murray, 4 Johns. Ch. 412; Baker v. Whiting, 1 Story, 233; McCall v. Sinclair, 14 Ala. R. 764; Hunt v. Smith, 3 Rich. Eq. 466; Young v. Keightley, 16 Yesey, 359; Greenlee v. McDowell, 4 Ired. Eq. 481; Franklin v. Wilkinson, 3 Munf. 112; Dunham v. Winans, 2 Paige, 24; Moody v. Farr, 27 Miss. 788; 19 Penn. 431; Caller v. Shields, 2 Stew. &P. 417; Bradshaw v. Garrett, 1 Porter, 47; Randolph v. Randolph, 1 Hen. & Mnnf. 180; Pfeltz v. Pfeltz, 1 Maryland Ch. Dec. 456.</p> <p>2. That the petition for leave to file cross hill for discovery also came too late.—Sterry v. Arden, 1 Johns. Ch. 62; Fielder v. Schceflin, 7 Johns. Ch. 250; Gouverneur v. Elmendorf, 4 John. Ch. 357; White v. Bnloid, 2 Paige, 164; Cartwright v. Clark, 4 Mete. 104; Irving v. DeKay, 10 Paige, 319; Boberts v. Peavy, 9 Foster, 392; Cocke v. Evans, 9 Yerger, 294; Moore v-. Dial, 3 Stewart, 155; Mallory v. Matlock, 10 Ala. 596; Price v. Cannon, 3 Mis. 453; 15 Ark. 29.</p> <p>3. That the former decision is conclusive of all the other points made for the appellants.—Carroll v. Malone, 28 Ala. B. 522; Miller v. Jones, 29 Ala. B. 174; Bryan v. Weems, 25 Ala. 195; Johnston v. Glasscock, 2 Ala. 519; McClellan v. Crook, 7 Gill, 333 ; Gelston v. Codwise, 1 Johns. Ch. 189, 194; Young v. Frost, 1 Md. 377, 396 ; Biscoe v. Tucker, 14 Ark. 515; Gilmore v. Patterson, 36 Maine, 544 ; Calkins v. Evans, 5 Ind. 441; 10 Wheat. 431, 441; 5 Cranch, 316; 1 Wheaton, 364; 7 Wheaton, 58; 3 Md. Ch. Dec. 418 ; 1 Ohio St. B. 511; Haskell v. Boaue, 1 McCord’s Ch. 29; Grier v. Campbell, 21 Ala. 333; Ilanberry v. Hanberry, 29 Ala. 719; 3 Dana, 427; 4 Florida, 359 ; 9 Leigh, 262.</p>

<p>Appeal from the Chancery Court of Balias.</p> <p>Heard before the Hon. James B. Clark.</p> <p>The facts of this case, as presented by the bill, are these:</p> <p>Adonijah "Worley died, in said county of Dallas, in the year 1830, after having executed his last will and testament, which was duly admitted to probate after his death, and which contained the following clause: “It is my wish and desire, that all the lands which I own, adjoining the town of Selma, may be held and retained by my executor, for the use and support of my wife and children, together with two female slaves, all the household and kitchen furniture, and the stock of every description whatsoever, until my daughter Fanny Ann shall arrive at the age of sixteen years; then to be sold, and the proceeds equally divided between my wife and children, share and share alike.” The testator’s widow, Mrs. Fanny Worley, and his three children, Williamson W., Fanny A., and Nancey E. Worley, survived him, and were his sole distributees and heirs-at-law. After the testator’s death, Williamson W. Worley also died, intestate, and without having ever married. Nancy E. Worley married Edward W. High, (at what time does not appear,) and died on the 25th December, 1844, intestate, and leaving an only child, who survived her but a few weeks, and whose sole heir and distributee was its father, said Edw’d W. High. Fanny A. Worley, the testator’s other daughter, married one Thomas Todd, but was living separate and apart from him when the bill was filed.</p> <p>The testator, at the time of his death, did not have the legal title to the tract of land mentioned in his will, but held the title-bond of William R. King and George Phillips, who were the patentees of the United States, and also commissioners of the town of Selma to make titles to town lots. In 1849, after the death of his wife and child, High went to California, leaving Mrs. Worley in the possession of the land, and supposing that she would hold and cultivate it for the benefit of all the parties interested. On his return, he found that she had obtained a deed for the land from said King and Phillips, conveying it to her, or to her and Mrs. Todd. Pie then filed his bill against Mrs. Worley, Mrs. Todd and her husband; alleging, in addition to the facts above stated, that this deed was intended to deprive him of bis interest in the land, and to prevent him from maintaining any action at law on account of it; that it was never recorded, and that the parties refused to let him inspect it. The prayer of the bill was for a discovery in relation to the deed; that the same might be set aside and annulled, if found to be inconsistent with his rights, and for general relief.</p> <p>The defendants demurred to the bill, for want of equity, and the chancellor sustained their demurrer; and the decree of the chancellor, dismissing the bill, is now assigned as error.</p>

<p>[BILL IN EQUITY BY CREDITOR AGAINST ADMINISTRATOR OR DECEASED WIFE.]</p> <p>1. Liability of wife’s separate estate fw necessaries furnished- to herself and family.—A married woman, owning a separate estate created by deed, may charge it, by contract express or implied, with the payment of necessary medical services rendered to her and the family ; but, where it appears that the physician was called in by the husband, and it is uot shown that the wife authorized or assented to his employment on the credit of her separate estate, the debt imposes a legal liability on the husband alone, although he was insolvent at the time; and the fact that the wife, during her last illness, requested her husband and children to pay the debt, is not sufficient to charge her separate estate with its payment.</p>

Heard before the Hon. James B. Clark. The bill in this case was filed by Alexander May, on the 24th January, 1855, against the administrator of his deceased brother, John May; and sought to have a… Held: that while the evidence showed that the deed was accompanied by a parol agreement, which might be sufficient to convert it into a mortgage, it also established the further fact, that the transaction was intended by the parties to defraud the creditors of the grantor.

Tried before the Iioa. Alex. McEinstry. The complaiut in this case was in these words: “John ~W. Mann & Co. \ The plaintiffs, John-us. IW.

<p>[BILL IN EQUITY BY CREDITOR, TO SUBJECT WIPE;S SEPARATE ESTATE, CREATED BY DEED, TO PAYMENT OP CHARGE.]</p> <p>1. Construction of deed of gift.—A deed of gift, by which a father conveyed a slave to a trustee, in trust for the sole use and benefit of his daughter Eliza Jane, then a married woman, “ for and during tbe time which she shall remain the wife of the said David,her husband ; “ and if the said Eliza Jane shall die before her said husband, then to the sole use and benefit of the heirs of her body forever ; which said' hire and profit of said negro, and the use and benefit thereof, to the said Eliza Jane as aforesaid, are,, from time to time, and at all times during the coverture, to be and remain to the sole and separate use and enjoyment of the said Eliza Jane during her life, and after her death to the heirs of her body,”—vests an absolute title in the daughter.</p>

<p>Appeal from tbe Chancery Court of Talladega.</p> <p>Heard before the Hon. James B. Clark.</p> <p>This bill was filed by Jesse M. Burns, against the administrator and heirs-at-law of Milton B. Hamilton, deceased, on the 16th April, 1849. The facts on which the complainant predicated his claim to relief, as stated in the bill, were these:</p> <p>Milton B. Hamilton died, in Cherokee county, Alabama, in August, 1839, being in possession of a tract of land which he had been cultivating for several years, but which belonged to the United States. In the spring of 1843, his administrators made application to the land-office at Lebanon, claiming that their intestate had a preemption right to the land, paid the purchase-money, and obtained a certificate of entry in his name! On the 10th April, 1844, the register of the land-office at Lebanon, being instructed by the commissioner of the general land-office at Washington that this certificate was improperly issued, issued another certificate of entry in the name of “the heirs of Milton B. Hamilton;” anda patent was issued to them, by that description, on the 1st May, 1845. On the 2d February, 1844, the administrators in chief having resigned and been removed, letters of administration de bonis non on the estate of said decedent were granted to John Chapman, who, on the 5th April, 1844, filed a petition in the orphans’ court of Cherokee county, asking an order to sell this land for the purpose of paying the debts of the estate. Under this petition, the court granted an order of sale on the 7th September, 1844; and the land was sold under this order, at public outcry, on the 31st of October, 1844, the complainant becoming the purchaser. “At the time of said sale, complainant and his agent, Samuel Burns, by whom the purchase was made, were totally ignorant that there was any defect in the title to said land, or that the title to the same did not pass by the said sale; and complainant was ignorant that the first certificate had been improperly issued, and that a second one had issued, and remained thus ignorant until after the execution of Ms note for the purchase-money, as hereinafter stated.”</p> <p>The terms of the sale required a part of the purchase-money to be paid in cash, and the balauce in six months; but the cash payment was not made until the 8th February, 1845, when a note, with two sureties, was also given for the balance, ante-dated as of the day on which the sale was made; and the administrator then executed a written instrument, under seal, acknowledging the receipt of the money and note, and binding himself, “so soon as said sale shall be confirmed,” to make to the complainant, “ pursuant to the order of the court, such deed for said land as” he might be “bylaw authorized and required to make.” The administrator’s report of the sale was confirmed by the court in February, 1845; but it does not appear that any deed was executed to the complainant. Soon after the maturity of the note for the balance of the purchase-money, the administrator brought suit on it, and recovered a judgment against all the parties thereto in April, 1849. The cQmplainant attempted to defend the suit, on account of the failure of consideration ; but the circuit court ruled, that he could not set up that defense while retaining possession of the land.</p> <p>The complainant offered in his bill to account for the rents and profits of the land, while in his possession ; and prayed, that the purchase-money paid by him might be refunded, that the judgment might be enjoined, and for other and further relief.</p> <p>The chancellor dismissed the bill, for want of equity; and his decree is now assigned as error.</p>

Heard before the Hon. James B. Clark. The bill in this case was filed on the 22d April, 1848, by Josiah Kilgore, against Samuel H, Taylor and wife, and sought to recover from the defendants reimbursement for costs and expenses incurred by the complainant as guardian of Mrs. Taylor, then Miss Ramsey, in the unsuccessful prosecution of a chancery suit in South Carolina.

<p>Appeal from the Circuit Court oí Autauga.</p> <p>Tried before the Hon. C. W. Bapier.</p> <p>This action was brought by Sarah J. Vincent, against Mills Rogers, and was founded on a writing which is in these words:</p> <p>“Washington, Ala., January 1, 1844.</p> <p>“ This is to certify, that Joseph II. Vincent deposited in my hands four hundred dollars on the 1st May, 1842, for the use and benefit of Sarah J. Vincent, to be kept for her use and benefit; which amount of money is to bear the lawful interest of eight per cent, per annum. And it is agreed, that I am to furnish the said Sarah J. Vincent what amount of clothing, schooling, and other probable expenses, as I may' think necessary, and am to be allowed of said expenses tobe deducted from the said deposit of four hundred dollars in my hands. Mills Rogers.”</p> <p>At the January term of this court, 1857, the judgment of the circuit court on a former trial was reversed, and the cause remanded.—See the report of the case in 30 Ala. 471. After the remandment of the cause, the plaintiff filed an “amended and additional complaint,” which was as follows:</p> <p>“ 1. The plaintiff claims of the defendant, also, another sum of four hundred dollars, due to plaintiff by a written agreement made by defendant on the 1st January, 1844, which agreement is substantially as follows: ” (setting it out as above copied.) Plaintiff avers, that said agreement and said money due thereon is her property and right; that she was a minor, under the age of twenty-one years, when said agreement was made; that she became and ivas of age before this suit was brought, to-wit, on the 1st December, 1853 ; that before this suit, was brought, to-wit, on the 1st December, 1853, she demanded of defendant the money due to her under and by virtue of said agreement, and of the iacts aforesaid; and that defendant wholly failed and refused to pay her said sum of money, or any part thereof. Plaintiff' avers, also, that at the fall term of said circuit court of Autauga county, 1853, plaintiff, then a minor, suing by her next friend, Joseph H. Vincent, recovered a judgment against said defendant; that in said suit, which was for work and labor done for defendant by plaintiff, the defendant filed, with other pleas, the pleas of set-off and payment; that plaintiff took issue thereon; that on the trial thereof, the defendant gave evidence of money paid by him for schooling of plaintiff, and of money paid by him for clothing plaintiff, and of the value of her board furnished by defendant, and of the value of books furnished her by him; that said account for board, schooling, clothing and books, furnished plaintiff by defendant, were for her board, clothing, schooling and books furnished her during the whole period she lived with defendant, aud for the whole period that he acted as her trustee, to-wit, from the 1st May, 1842, to the 1st January, 1852; that these items were all the items which he had expended for and on her account; that the jury considered of said items, and gave a verdict, in favor of the plaintiff in said action, of $—; that the judgment of the court was thereon rendered in favor of the plaintiff, and that said judgment has never been reversed. And plaintiff’avers, that said defendant has never incurred any other expense on her account, aud has not furnished to her since the commencement of said suit any money, clothing, schooling, books, board, or any other thing whatever, nor has he iucurred any liability since the commencement of said suit on her account; that since the commencement of said suit he has ceased to act in any way for her, as trustee, or friend, to-wit, since the 1st January, 1852; that there is no account of said trust to be entered into and had between plaintiff and defendant, on account of any expenditures under and by virtue of said instrument declared upon as above; and that the whole sum of four hundred dollars, with interest from the 1st dajr of May, 1842, is due and owing to her, exclusive of any and all demands of defendant, which demands were passed upon and adjudicated in the trial aforesaid.</p> <p>“2. The plaintiff claims of the defendant, also, the further sum of four hundred dollars, due to plaintiff by a written agreement made by defendant on the 1st clay of January, 1844, which is substantially as follows,” (copying the agreement.) Plaintiff avers, that said agreement, and said money due thereon, is her property and right; that she was a minor, under the age of twenty-one years, when said agreement was made; that she became and was of age, to-wit, of the age of twenty-one years, before this suit was brought, to-wit, on the 1st day of December, 1853; that before this suit was brought, to-wit, on the 1st December, 1853, she demanded of said defendant the money due to her under and by virtue of said agreement, and of the facts aforesaid; and that said defendant wholly neglected and refused to pay her said sum of money, or any part thereof. And plaintiff further avers, that at the fall term of the circuit court of said county of Autauga, 1853, plaintiff' then a minor, suing by her next friend, Joseph H. Vincent, recovered a judgment against said defendant; that in said suit, which was for work and labor done by plaintiff for defendant, the defendant filed, with other pleas, the pleas of set-off and payment, and plaintiff took issue thereon ; that on the trial thereof, the defendant gave evidence of money paid by him for schooling of plaintiff, and of money paid by him for clothing plaintiff, and of the value of her board furnished her by defendant, and of the value of books furnished her by him; that said account for board, schooling, clothing and books, furnished to her by defendant, were for her board, clothing, schooling and books furnished her during the whole period she lived with defendant, and for the whole period that he acted as her trustee, to-wit, from the 1st May, 1842, to the 1st January, 1852; that these items were all the items he had expended for and on her account ; that the jury considered upon said items, and gave a verdict in said suit, in favor of the plaintiff, of $—; and that the judgment of the court was thereon rendered in favor of the plaintiff, which judgment has never been reversed. And plaintiff' avers, that said defendant has never incurred any other expenses on her account, and has not furnished her since the commencement of said suit any money, clothing, schooling, books, board, or any other thing whatever ; that he has not incurred any liability on her account since the commencement of said suit; and that since the commencement of said suit he has ceased to act in any way for her as trustee or friend, to-wit, since the 1st January, 1852. And plaintiff avers, that there is no account of said trust to be entered into and had between plaintiff and defendant, on account of any expenditures under and by virtue of said instrument declared on as above; and that the whole sum of four hundred dollars, with interest thereon from the 1st May, 1842, is due and owing to her, exclusive of any and all demands of defendant, which demands were passed upon and adjudicated in the trial aforesaid. And plaintiff further avers, that heretofore, to-wit, on the 1st December, 1853, a settlement was had between plaintiff and defendant, of all matters of expense for board, clothing, schooling and other expenses incurred by defendant on account of plaintiff, and abalance struck; and that the sum of four hundred dollars, with interest from the 1st May, 1842, is the balance due to plaintiffj for which she sues.”</p> <p>The court sustained a demurrer to each of these counts, leaving only the common counts in the complaint. On the trial, as the bill of exceptions states, after the plaintiff had read in evidence the writing above copied, “the defendant introduced in evidence facts tending to show that, from the 1st May, 1842, to the 1st January, 1852, he had paid money for the board, clothes, and schooling of the plaintiff during that time. • The plaintiff then introduced the records of the court, showing that, at the spring term, 1852, of said circuit court, she, by her next friend, sued the defendant for work and labor; that the defendant pleaded .set-off and payment, and, under the plea of set-off, proved a large amount of money paid out and expended by him, between the 1st May, 1842, and the 1st January, 1852, for board, clothing, schooling, and other expenses of plaintiff; that he boarded her a part of the time, and the value thereof. The record showed a verdict for plaintiff of one cent, the judgment of the court thereon, and that said judgment isunreversed. This being all the evidence, the court charged the jury, that if they believed the evidence, this court has no jurisdiction of the cause, and the plaintiff cannot recover; to which ruling of the court the plaintiff excepted.”</p> <p>In consequence of these rulings of the court, the plaintiff was compelled to take a nonsuit, which she now moves to set aside.</p> <p>cited Vincent v. Rogers, 30 Ala. Rep.- 471; Guernsey v. Carver, 8 Wendell, 492; Stevens v. Lockwood, 13 Wendell, 644; Evans v. Billingsley’s Adm’r, 32 Ala. 395; 2 Rich. (S. C.) Rep. 560.</p> <p>cited Hitchcock v. Lukens, 8 Porter, 333; Wilson v. Sear-gent, 12 Ala. 778.</p>

Tried before the Hon. E. W. Pettus. This action was brought by Griffin M. Bender, against Mrs. Sarah E. Acker, and was commenced on the 5th January, 1857.

Tried before the Hon. C. W. Rapier. This action was brought by Andrew J. Eloyd, against John T. Hamilton and others, and was founded on an attachment bond executed by the defendants, for the purpose of procuring an attachment at the suit of said Hamilton against the estate of said Eloyd, conditioned that “ the said Hamilton shall prosecute his attachment to effect, and pay the defendant all such costs and damages as he may sustain by the wrongful or vexatious suing out of…

Heard before the Hon. James B. Clark. ' This bill was filed by Thomas J. Moore, as the admin- • istrator of Hardy H. Moore, deceased, and sought to remove the final settlement of his administration from the probate court, where it had been commenced, into the chancery court. The intestate died in September, 1836, leaving his widow, Mrs. Penelope N. Moore, and their only son, Thomas H. Moore, his sole distributees and heirs-at-law. In 1841 Thomas Ii.

Tried before the Hon. Wi. S. Mudd. This action was brought by L. J. Wilson, against Archibald Campbell, to recover certain lands which were described in the complaint as follows: “The south-east quarter of section seven, township eleven, range one east, containing one liiindred and sixty 61-100 acres; the south-west quarter of section eight, same township and range, containing one hundred and sixty 92-100 acres; the north-east quarter of section eight, same township and…

<p>[ACTION ON BROMSSORY NOTE, BY PAYEE AGAINST MAKER.]</p> <p>1. Liability as partner on note «mated in partnership name.—In an action against several persons, as partnen, on a promissory note executed by the partnership, if one of the cLefendari.s pleads non est factum, it is incumbent on the •plaintiff to prove that such cbfendant himself executed the note, or that he •was a member of the firm men it was executed, or that he had been a ■member of the firm, and that the plaintiff, having had previous dealings with it, had not been notifiol of his withdrawal at the time when the note was given.</p> <p>2. Competency of defendant as loitnesi for co-defendant.—Under section 2288 of the Code, a defendant against whim there is no evidence is a competent witness for a co-defendant.</p> <p>■'3. Admissibility of partnership accounts against third persons as affecting liability of person as partner.—In an action against several persons, as partners, on a promissory note executed in the name of the partnership, accounts contracted by third persons with the partnership, under its different firm names, are not, prima fade, competent eiidence against one of the defendants, who pleads non est factum and the geeeral issue.</p>

Tried before the Hon. E, W. Pettus. This action was brought by Rebecca Jones, as the administratrix of William 0. Jones, deceased, against William E. Boyd, as the administrator de bonis non of Reuben Harrison, deceased, and was founded on a judgment recovered by said William C. Jones, in the city court of Mobile, on the 29th March, 1854, against said Reuben Harrison and others.

<p>Appeal from the Chancery Court at Troy.</p> <p>Heard before the Hon. Wade Keyes.</p> <p>This bill was filed by David P. Fawcetts, against Sea-born C. Kimmey, M. C. Kimmey, John Lindsey, Alfred Holley aud others. Its material allegations were, that the complainant, on the 6th January, 1850, at the solicitation and request of Seaborn C. Kimmey, became jointly bound with said Seaborn as surety of John M. Kimmey, on several promissory notes due and payable to John Lindsey, which amounted in the aggregate to nearly §1,000; that Seaborn Kimmey, on the same day, executed \ a mortgage to said Lindsey on a tract of land of which he was then seized and possessed, as well to secure the payment of said notes, as to indemnify complainant against loss by reason of his said suretyship; that this mortgage was duly recorded; that Lindsey afterwards recovered judgments on said promissory notes, as they severally fell due; that complainant was compelled, in consequence of the insolvency of said Seaborn and John M. Kimmey, to pay off and satisfy these judgments; and that Lindsey had “given up ” to him the said mortgage. The prayer of the bill was, that the complainant might be subrogated to all the rights which Lindsey had under said mortgage, and for general relief.</p> <p>Alfred Holley, who was made a defendant on an allegation that he claimed an interest in said lands, filed an answer to the bill; setting up title to the lands embraced in the mortgage, under a purchase made by him at sheriff’s sale, on the 1st Monday in February, 1851, under au execution against John M. Kimmey, issued on a judgment recovered against him by the Branch Bank at Montgomery; and alleging that Seaborn Kimmey, at the time said mortgage was given, had no title to the lands thereby conveyed, but that the title thereto was in John M. Kimmey. The facts connected with the title to said land, as alleged in Holley’s answer, are stated in the opinion of the court, and, therefore, need not be here detailed.</p> <p>On final hearing, on pleadings and pyoof, the chancellor dismissed the bill, and his decree is now assigned as error.</p>

Tried before the Hon. John Gill Shorter. This action was brought by Lucius B. Johnson, (and afterwards revived in the name of his administrator,) against the administratrix of Calvin C. Sellers, deceased; and was founded on a verbal contract, which is thus described in the compla/int: “ In consideration that plaintiff and his wife would discontinue teaching school in the Dallas Academy atf Smlma, and leave and abandon all their interest in said academy, and in the lot on…

<p>Appeal from the Circuit Court of Talladega.</p> <p>Tried before the Hon. Eobert Dougherty.</p> <p>This action was brought by Holman F. Simmons, against Eobert H. Wynn, and sought to recover damages for the defendant’s alleged breach Of a partnership agreement between him and the plaintiff. The defendant pleaded “the general issue, in short by consent, with leave to give in evidence anything that could be legally pleaded in bar.” The jury returned a verdict in favor of the plaintiff, .for forty-one 99-100 dollars ; and the court thereupon rendered judgment in his favor for that amount, with costs. The defendant afterwards moved “to set aside the judgment and dismiss the casé; on the ground that the recovery is less than fifty dollars.” On this motion the following judgment was rendered: “Motion having been made by defendant, to set aside the verdict and dismiss the cause, because the recovery is less than fifty dollars; which motion, after argument had thereon, was by the court overruled, and the defendant excepted; the plaintiff having filed no affidavit. It is therefore considered by the court, that said motion be overruled, and that plaintiff recover of defendant the costs of this motion.” The overruling of this motion is now assigned as error.</p>

Heard before the Hon. James B. Clark. This bill was filed by Mrs. Lucinda J. Arnett, against the executor of her deceased husband, Thomas Arnett, and sought to recover an allowance for her support and maintenance, under a provision in her husband’s will which was in these words: “I also direct, that my wife be allowed a sufficient support to last her twelve months from my decease.” The testator died in April, 1849; and letters testamentary on his estate were duly granted by…

<p>Application for a mandamus to the circuit judge of the eighth judicial circuit, sitting for Barbour county, to compel the dismissal of a suit therein pending, wherein one Samuel Gilbert was plaintiff, and John McLendon and Matthew Averett were defendants. It appeared from the transcript exhibited with the petition, that the following orders were made in the cause:</p> <p>“ Spring term, 1857. Continued for want of plaintiff’s answers to interrogatories, and if not answered within one hundred and twenty days, plaintiff’s suit stands «dismissed ; and on the further condition, that plaintiff pay all costs in one hundred and twenty days, or his suit to> stand dismissed.”</p> <p>“ Fall term, 1857. Came the parties by their attorneys, and the defendant moved the court to dismiss, in pursuance of the previous order made at the last term of this court; the answers, as required by said order, not having been filed within one hundred and twenty days. Plaintiff filed answers to the interrogatories in October preceding the motion to dismiss, but after the expiration of the time stated in the order of the last term. The court refused to dismiss, and continued the cause; to which action of the court the defendant excepted.”</p> <p>The record did not show when the interrogatories were filed, nor did it contain any other orders of the court. The refusal of the court to dismiss the suit is the ground of the application for a mandamus.</p>

<p>[action on guaranty.]</p> <p>1. Sufficiency of complaint in action against administrator.—In an action against an administrator, on a contract made by bis intestate in his life-time, a count which does show not that the defendant is administrator is demurrable.</p>

Tried before the lion. Robt. Dougherty. This action was brought by William Hassell, as trustee of Mrs. Elizabeth Hamilton, against David Hamilton, to •recover a slave named Letitia, a girl about fourteen years of age.

<p>[ACTION FOR MONEY HAD AND RECEIVED, BY WIFE’S ADMINISTRATOR AGAINST SURVIVING HUSBAND.]</p> <p>1. Husband’s marital rights.—Money paid to the husband, during his wife’s lifetime, by the executors of her deceased father, on account of her interest as a legatee in the debts due to the estate, becomes the absolute property of the husband, unless the bequest created a separate estate in the wife ; but the husband’s marital rights do not attach to money collected by the executors after the death of the wife, although paid over to him by the executors.</p> <p>2. When action lies for money had and received.—An action for money had and received lies against the husband, in favor of the personal representative of his deceased wife, to recover money paid over to him by the executors of the wife’s father under a legacy to her, to which his marital rights never attached.</p> <p>3. When administrator cannot sue.—If an executor makes an unauthorized sale of lands, as to which his testator died intestate, the administrator of one of the deceased heirs has no interest in the proceeds of sale, and cannot maintain an action for any portion thereof.</p> <p>■4, Construction of will as to reversionary interest after widow’s death.—Where a testator directed “ the remainder ” of his estate, after payment of debts, to be equally divided among his wife and children ; bequeathing the interest of the widow to her during life or widowhood; authorizing his executors, by a codicil, to sell any part of the real estate which they might deem advisable, and directing them to divide the proceeds of salo according to tho main body of the will,—held, that the testator died intestate as to the reversionary interest in that part of the real estate which was allotted to the widow during life or widowhood, and that the executors had no authority to sell it after her death.</p>

In tbe matter of tbe estate of Edward Henry, deceased, on final settlement of the accounts of the administratrix, Mrs. Angelina Simmons, at the instance of a succeeding administrator de bonis non, John Henderson. The intestate died in September, 1852, leaving a widow, but no living children ; but his widow, about six weeks after liis death, gave birth to a posthumous child.

<p>[trover for conversion of slaves.]</p> <p>1. Validity of order of sale of personalty by probate court.—An order for the sale of slaves belonging to a decedent’s estate, granted by the probate court on the application of the administrator, which application shows on its face that a sale was necessary for the purpose of paying the debts of .the estate, is valid.</p>

<p>[FINAL SETTLEMENT OF ADMINISTRATOR'S ACCOUNTS.]?</p> <p>1. Limitation of appeal.—The act of February 15, 1854, (Session Acts 1853-4, p. 71,) “ to modify the operation of the statute of limitations,” in its application to “causes of action” accruing prior to the 17th. January, 1853, embraces appeals. (Overruling Green v. Maclin, 29 Ala. 695.)</p>

<p>[MOTION TO AMEND JUDGMENT NUNC PRO TUNC.]</p> <p>1. Admissibility of parol evidence.—On motion to amend a judgment nunc joro tunc, parol evidence is not admissible to prove facts not shown by the record.</p> <p>2. Sufficiency of evidence to authorize amendment.—An entry “ on the minutes kept by the presiding judge,” in these words, “Service proved, and judgment,’.’ is sufficient to authorize an amendment of the judgment at the next term, nunc pro tunc, so as to show that proof of the service of the writ was made to the court.</p>

<p>[detinue fok slaves.]</p> <p>1. Plea of former recovery.—In detinue, a plea of former recovery in a statutory claim suit, averring that plaintiff has not acquired any title since the rendition of that judgment and verdict, is a bar to the action.</p> <p>2. Judgment not merged in forfeited claim bond.—The forfeiture of a claim bond does not operate as merger or satisfaction of the original judgment, nor does it deprive the plaintiff of the right to sue out an alias or pluries execution.</p> <p>3. Validity of execution and levy thereof.—An agreement between the parties to a pending claim suit, to the effect that a judgment of condemnation should be rendered for the plaintiff in execution, for a, sum less than the real value of the slave in controversy, and that the title to the slave should vest in tlie claimant on payment of this agreed value within a reasonable time, does not render void an execution afterwards issued on the judgment of condemnation ; nor does it affect the authority of the sheriff to levy on and sell the slave under the execution, notwithstanding a tender of the agreed value by the claimant.</p>

<p>[trover for conversion of slave.]</p> <p>1. Presumption from lapse of time.—In an action brought by an administrator de bonis non, against one claiming under a purchase at a public sale by the administrator in chief, the regularity of the sale, and of the order under which it was made, may be presumed from the lapse of twenty years, accompanied with proof of adverse possession under the sale for that length of time, and of the fact that the records of the court were loosely kept about the time when the order of sale was made.</p>

Heard before the Hon. Wade Keyes. The hill in this case wms filed by Jacob Lose, against Samuel Armour, and alleged, that the complainant, in December, 1846, owned a tract of land, near the city of Mobile, containing about thirty-five acres; that Samuel Armour, his father-in-law, proposed that their families should live togther on this land, and jointly cultivate a garden for market purposes, and that complainant should let him have an undivided half interest in the land;…

Appear from tbe Chancery Court of Wilcox. Heard before the Hon. Wade Keyes. The bill in this case was filed by Benjamin W. Matthews, against James Robinson, and alleged the following facts: On the 15th March, 1849, complainant sold and delivered to defendant a slave, in consideration that defendant would pay all the debts then owing by complainant.

Heard before the Hon. James B. Clark. The bill in this ease was filed by the appellants, and sought to enjoin two judgments at law which had been obtained against them by the defendants.

<p>Appeal from the Circuit Court oí Mobile.</p> <p>Tried before the Hon. Wm. S. Mudd.</p> <p>This action was brought by Edward R. Thorpe, against Mrs. Hannah Sughi, to recover $150 for the rent of a dwelling-house in the city of Mobile, from the 1st November, 1856, to the 1st February, 1857. The defendant pleaded, “in short by consent,” the general issue, payment, tender, and set-off; and issue was joined on all these pleas. It appeared on the trial, that the plaintiff had leased the house to the defendant, for one year from the 1st November, 1855, at an annual rent of $600, payable quarterly. The lease contained a provision in these words: “ The said house is to be furnished with gas, and painted all over to the satisfaction of Mrs. Sughi; and she has the privilege to retain the said house, at the same rent yearly, for as many years as she may wish.” Mrs. Sughi paid the entire rent for the first year under this lease, “without having demanded anything from the plaintiff for gas; ” and she continued to occupy the premises, after the expiration of the year, under the terms and stipulations of the lease.</p> <p>“ On the trial, the defendant pleaded a set-off to a portion of the plaintiff’s claim, and a tender of the balance. The account consisted of a gas-bill for $60 75, paid by the defendant for gas burned by her in the house from the time of her original renting up to the 1st February, 1857. The plaintiff objected to allowing this set-off\ because (1st) it was not the intention of tbe parties, at tbe time of the original renting, that the plaintiff should furnish the house with gas, but only with gas-fixtures; and because (2dly) the defendant not having demanded of the plaintiff any sum for gas during the first year of her tenancy, but having paid it herself, it would not be allowable for her to make any other defense to this action than she could have made if sued for the rent due for the first year. In support of the first ground of objection, the plaintiff offered one James Burns, who had been employed as the agent and manager of the gas-company in the city of Mobile, as a witness to prove that, between landlord and tenant, the term, ‘ to furnish the house with gas,’ as used in a lease, without any word of explanation, was always understood, so far as he knew, to mean that the landlord was to introduce gas-fixtures only, and leave the tenant to make his own arrangements with the gas-company for a supply of gas; that for the last twenty years he had known words of this character to be used by landlords in leases, without its having ever been contended that they were liable for the gas itself. The defendant objected to each portion of this evidence, and the court sustained the objection; to which the plaintiff excepted.”</p> <p>“As circumstances to show that the parties did not intend that the plaintiff should furnish the house with gas, but only with gas-fixtures, the plaintiff offered to prove, that the premises in question, prior to the renting to the defendant, were rented for $550 annually; that he added to the premises, before the defendant took possession under her lease, an additional piece of land, and four or five rooms, and painted the house inside and out, and placed an iron verandah in front of the house, and introducod gas-fixtures at a cost of $170, and furnished the house with costly chandeliers. To all this evidence the defendant objected, and the court sustained the objection; whereupon the plaintiff again excepted.”</p> <p>The rulings of the court on the evidence are now assigned as error.</p>

<p>Appeal from the Circuit Court of Russell.</p> <p>Tried before the Hon. S. I). IIale.</p> <p>This action was brought by the administrators ot George Tillman, deceased, against the administrators de bonis non of Campbell Cooper, deceased, to recover “ two hundred dollars due by account, for money1' paid on the 1st March, 1855, on account for the benefit of the estate of said Cooper, with interest thereon.” The defendants pleaded, “ in short by consent, 1st, that this court has no jmdsdiction of the case, but the matter in controversy should have boon determined and settled in the probate court: 2d, non assumpsit; 3d, payment; 4th, set-off; and 5th, the statute of limitations.” The plaintiff's moved to sti’ike out the first plea, and took issue on the others; but the record does not show what the action of the court on the motion was. The facts of the case, as disclosed on the trial, are thus stated in the bill of exceptions.</p> <p>“ The plaintiffs’ intestate, George Tillman, was the former administrator of the defendants’ intestate, and, as such, contracted with Mess. Baker & Lewis, attorneys-at-law, to pay them $75 for professional services to be by them rendered to him, as such administrator, from the time of the grant of letters to him up to his final return on said estate in the probate court; and said Baker & , Lewis agreed, in consideration thereof, to render to him all such professional services as he might require in the probate court, as such administrator, up to said final return. Some days afterwards, Tillman applied to Baker, of the firm of Baker & Lewis, to attend the appraisement, and render such services as might be necessary. Baker gave him the necessary advice, and informed him that his presence at the appraisement would be useless and unnecessary. Tillman, however, insisted that he should go, and agreed, as such administrator, to pay him $25 additional if he would go; which terms Baker accepted, and attended the appraisement. Soon after the appraisement, and before the sale of the property belonging to said Cooper’s estate, Tillman died, and the plaintiffs administered on his estate; and the defendants were afterwards appointed administrators de bonis non of Cooper’s estate. Baker & Lewis afterwards sued the plaintiffs, as administrators of Tillman, and recovered judgment against them for $100, besides interest. This judgment was introduced as evidence by the plaintiffs, to prove that they had not paid said fees voluntarily; to which the defendants objected, and excepted to the overruling of their objection. It further appeared from the evidence, that Baker & Lewis, after Tillman’s death, tendered their professional services to the defendants; but that the defendants declined them, and retained other counsel.”</p> <p>The court charged the jury, on this evidence, that if they found that Tillman, as administrator of Cooper, contracted with Baker & Lewis to pay them $75 for their professional aid and assistance in and about the business of said estate, from the beginning of his administration until the final settlement of the estate; and that such contract was a reasonable one, and would be a reasonable compensation for the services to be rendered; and that the $25 charge was a reasonable compensation for the services rendered for which it was charged,—then they should find for the plaintiffs such charges, with interest thereon from the time they were due.</p> <p>“ The defendants excepted to this charge, and requested the court to instruct the jury as follows:</p> <p>“ 1. That if they believed a contract was made by Baker & Lewis with Tillman, as administrator of Campbell Cooper, deceased, by which he was to pay them a certain sum for their services, then Tillman was personally liable to them on such contract.</p> <p>“2. That if the plaintiffs, as administrators of Tillman, paid said sum to Baker & Lewis, this was in discharge of a personal liability of their intestate, and not a charge against the estate of the defendants’ intestate.</p> <p>“ 3. That if an administrator employs an attorney to assist him, he is individually liable to such attorney for his services, and not in his representative capacity; and that such charge and liability cannot, in a court of law, be enforced against the estate which he represents.</p> <p>“ 4. That if Tillman, as administrator of Cooper, employed Baker & Lewis, he only was responsible to them at law; and if his administrators paid the debt, it then became (if a charge at all) an equitable charge against the estate of Cooper, which could not be enforced at law.</p> <p>“ 5. That if Cooper’s estate was responsible at all, at law, to the plaintiffs, it is only responsible in this action for the value of the professional services actually rendere said estate, wdth interest.</p> <p>“ 6. That this claim should have been adjudicated and settled in the probate court.”</p> <p>The court refused each one of these charges, and to each refusal the defendants excepted; and they now assign as error the charge given by the court, and the refusal of the several charges asked.</p>

<p>Appeal from the Circuit Court of Clarke.</p> <p>Tried before the Hon. John E. Moore.</p> <p>This action was brought by Augustus Tomlinson, as the guardian of Sarah H. Curtis, a lunatic, against ¥m. H. Peebles, to recover money collected by the defendant from one P. S. McNeill on a note for $994 40, dated April 4, 1848. The defendant pleaded, 1st, non assumpsit; 2d, the statute of limitations of three years; 3d, the statute of limitations of six years; 4th, payment; and, 5th, that plaintiff was not the guardian of Sarah H. Curtis. To the second plea the plaintiff replied that the cause of action was not an open account, and joined issue on the other pleas. On the trial, as the bill of exceptions states, the plaintiff introduced one Atkinson as a witness, who proved his delivery to the defendant, as the property of Mrs. Curtis, of the note on McNeill, and the defendant’s execution of a receipt to him for that and several other notes; also, that he (witness) received these notes, with, some other property, from one Crenshaw in Texas, “ who was acting or professing to act as guardian or agent of Mrs. Curtis, and who delivered them to him on the order or at the request of Mrs. Curtis; ” that he settled up Mrs. Curtis’ business in Texas, and took said note from McNeill on settlement; that he brought Mrs. Curtis with him to Clarke county, Alabama, where she remained four or five weeks, and then returned to Texas in company with the defendant; that Mrs. Curtis, resided in Texas when he first knew her, and he had no knowledge that she had ever resided any where else; that he did not know of any property which she had in Wilcox county, Alabama, but could not say that she had none there. The plaintiff: then read in evidence the deposition of said McNeill, who testified, that he owed Mrs. Curtis, in 1848 and 1849, the note above described; and that he paid said note to the defendant in this suit, to whom it had been assigned or transferred by Mrs. Curtis. The plaintiff then offered in evidence the certificate of the probate judge of Wilcox county, stating the fact that, on the 17th April, 1854, the plaintiff was appointed guardian of Mrs. Curtis. The defendant objected to the admission of this certificate, and reserved an exception to the overruling of his objection. “This was all the testimony offered to the jury; and thereupon the court charged the jury, that the evidence, if believed by them, was sufficient to entitle the plaintiff to recover.” This charge, to which the defendant excepted, together with the admission of the evidence objected to, is now assigned as error.</p>

Tried before the Hon. John Gill Shorter. This action was brought by Hugh Blakeney, against Claiborne Patterson, to recover tbe amount of an open account for $58,59, due on the 1st January, 1856. The only plea was the general issue. On the trial, the plaintiff introduced the deposition of Eranklin Blakeney, who testified, in answer to interrogatories, as follows: “ I am acquainted with the parties to the suit.

Tried before the Hon. Robt. Dougherty. ' This action was brought by Levi R. Lawler, against Robert M. J eans, to try titles and recover the possession of the north-west quarter of the north-west quarter of section seven, in township twenty, range thirteen east, in the Coosa lancl-district. The defendant was in the possession of the laud as the tenant of one William M. Cos-per, who claimed title to it in himself.

Tried before the Hon. Nat. Cook. In this case, an execution was issued by a justice of the peace of Tuskaloosa county, on a judgment rendered by another justice of said county, in favor of one John Little, against E. H. Eipley; and was levied by a constable of Mobile county on a slave, as the property of said Eipley.

<p>Appeal from the Circuit Court of Autauga.</p> <p>Tried before the Hon. William M. Brooks.</p> <p>The indictment in this case charged, that the prisoner, Eli T. Sears, “ carried concealed about his person a bowie-knife, or knife or instrument of like kind or description.” The evidence adduced on the trial is thus stated in the bill of exceptions: “ The State introduced a witness who testified, that in August, 1857, in said county, he saw the defendant, at his request, unbutton his vest, and take from a belt around him a knife, which was about from seven to ten inches long, from an inch to an inch and a quarter broad, with a white handle, having the blade permanently fastened in the handle, and having a leather sheath; that he was not much acquainted with bowie-knives, or ‘Arlcansas tooth-picks,’ and could not say what kind of a knife it was; but that he took it to be a bowie-knife. The-defendant then introduced one Booth as a witness, who-testified, that he saw the defendant at the time spoken of by the witness for the State, and saw the knife, and had examined it since; that he had known what bowie-knives-were for seventeen years, and did not think that the defendant’s knife was a bowie-knife; that a bowie-knife was generally longer and wider, the width generally being-from one and a half to two inches, and the length from twelve to twenty inches; that the back and edge of a bowie-knife were straight, from the hilt to within about two-inches of the point, and then the edge curved upwards, while the back deflected downwards, and then up to a point where the edge and back met; that the blade was-■wider, and swelled somewhat in thickness, at the point where the edge and back commenced to curve; that the blade, at that point, was wider and thicker than at the-hilt, and heavier than any where else, in order to give weight to a descending blow; that the blade of the defendant’s knife was about seven i nches long, and one ineb wide, and wider and thicker at the hilt than anywhere else; that the blade had but one sharp edge, and tapered on both sides from the hilt to the point; that it was not so wide or so heavy at any point as at the hilt; that it was not a bowie-knife, but was more like a dirk than anything else, though he did not know what name to give it. It -was conceded by the defendant, that he carried concealed about his person, in the county of Autauga, within twelve mouths prior to the finding of the indictment, the knife spoken of by the witnesses.”</p> <p>“ This being all the evidence, tbe court charged the jury, that it was not necessary, to find the defendant guilty, that the knife which the witnesses had deposed to, as having been concealed about his person, should he a bowie-knife—that if it was one of like kind or description, it was sufficient; that the law, in prohibiting the carrying of one of like kind and description, implied that there was a difference between such an one and a bowie-knife; and therefore, even if the defendant’s knife was wider at the point, and heavier there, and not so long as a bowie-knife; yet, if they believed it was of the like kind and description, they would find the defendant guilty.</p> <p>“ The defendant excepted to this charge, and asked the court to instruct the jury, that if they believed from the evidence that the knife, which the defendant was charged •with having carried concealed, was, in its essential particulars, unlike a bowie-knife, they will find the defendant aiot guilty; which charge the court refused to give, and the defendant excepted.”</p>

Tried before the Hon. William M. Brooks. Held: that the grand jury, on an indictment for perjury, should have the original affidavit in the making of which the perjury was charged, and that an office copy was not sufficient. 2. In the offense of gaming, there are no aiders, abettors, or accomplices, unless one person is assisting, another to play the game.

■ Tried before the Hon. ¥m. M. Brooks. The prisoner in this case, Louis Rosenbaum, was indicted for an assault and battery on one Jacob Gittleman, “ exhibiting at the time an awl as a weapon; ” and on his trial, having pleaded not guilty, reserved the following exceptions to the rulings of the court: “Jacob Gittleman, upon whom the alleged assault and battery charged in the indictment was committed, was introduced as a witness, and testified, that Rosenbaum, a few days…

Tried before the Hon. William 8. Mudd. The prisoner, George Russell, was indicted for the-murder of one John Henry, “by stabbing him in the-neck with a knife;” pleaded not guilty; was convicted: of murder in the first degree, and sentenced to he hanged.

Tried before tbe Hon. ¥m. S. Mudd. This case was before this court at its January term, 1858, when the judgment of the circuit court was reversed, and the cause remanded.—See 31 Ala. 362.

Tried before tbe Hon. Alex. McKinstry. The prisoner, William H. Dupree, was indicted for the murder of one Smith, whose given name was alleged to 'be unknown to the grand jury, by shooting him with a gun; was convicted of manslaughter in the first degree, ■;and sentenced to imprisonment in the .penitentiary for three years.

Tried before the Hon. Nat. Cook. The indictment in this case was in these words: “ The grand jury of said county charge, that, before the finding of this indictment, Henry, a negro man slave, unlawfully, and with malice aforesaid, killed James Griffith, a white person, by stabbing or cutting him with a knife, against the peace and dignity of the State of Alabama. “The grand jury further charge, that, before the finding of this indictment, Henry, a negro man slave, unlawfully…

Tried before the Hon. William M. Brooks. The indictment in this ease was found at the November term of said court, 1857, and was in these words: “ The grand jury of said county charge, that before the finding of the indictment, and after the first day of March, 1856, William P. Molett, being then and there the owner of certain slaves, did suffer and permit more than six hands, the property of said William P. Molett, to reside on a plantation belonging to him, known as the…

Tried before filie Hon. Robt. Dou&hertv. The bill of exceptions in this case, which shows the ■only point presented for revision in this court, is as follows : “ On the trial of this case, the State introduced as a ■witness Solomon B. Scrimpshire, the person on whom fhe alleged assault was committed, and who testified, among other things,-that the prisoner came to the door •of a house in which he (witness) was, and presented a loaded pistol at him, and told him, ‘that if he…

Tried before the Hon. Robert Dougherty. The. indietment in this case contained two counts; the first charging the prisoner, Mary Oxford, with the larceny of two- hundred pounds of bacon, the personal property of one Samuel J. Sellers, alleged to have been stolen “from a store-house, dwelling-house, smoke-house,kitchen or shopand the second charging that she feloniously' received the bacon, then lately stolen, knowing that it had been feloniously taken and carried away. “ On…

Tried before tbe Hon. Robert Dougherty. The prisoner in tbis case, Hawk Mooney, was indicted for an assault on one Isaiah M. Owens, with intent to murder him; pleaded not guilty; was convicted and sentenced to. five years imprisonment in tbe penitentiary. “ On tbe trial,” as the bill of exceptions states, “tbe State proved, that Jeremiah Owens, upon whom tbe assault was alleged to have been committed, passed along where tbe prisoner, a youth, was crying, and asked him what…

Tried before the Hon. S. D. Hale. This was a scire facias against bail on a forfeited recognizance. The defendants craved oyer of the recognizance, or undertaking of bail, and demurred to the scire facias, on the ground that the recognizance was void for uncertainty. The court sustained the demurrer, and an exception was reserved by the State to its ruling. The material facts of the case are stated in the opinion of the court.

Tried before the Hon. William M. Brooks. The indictment in this case was in the general form prescribed by the Code.

Tried before the Hon. Robert Dougherty. The indictment in this case charged, “ that R. A. Red-man and John Hicks did unlawfully engage in a horse-race along a public road in said county.” After conviction, the defendant Redman moved in arrest of judgment, on the ground that, “ although the statute makes horse-racing along a public road a misdemeanor, it fails to provide any punishment therefor; and as it is a purely statutory offense, the statute alone can be looked to for…

<p>[INDICTMENT FOB GAMING.]</p> <p>1. Charge invading province of jury.—A charge to the jury, instructing them “ that the testimony of a man who was asleep a part of the time, and who contradicted another witness on the question of the defendant’s playing, should have no weight with them,” is an invasion of the province of the jury.</p> <p>2. Same.—A charge which malíes the defendant’s guilt or innocence depend on what one witness proved, instead of facts to be found by the jury from the whole evidence, is obnonious to the same objection.</p>

Tried before the Hon. Porter King. “On the trial of this ¡ease,” as the hill of exceptions recites, “ the State introduced as a witness one Wiley Hawkins, who testified, that the defendant kept a house in the town of Eutaw where spirituous liquors were sold; that he, (witness,) within twelve months before the finding of the indictment, frequently bought whiskey from the defendant by the quart; that said liquor, on divers occasions, was drunk in an alley, five or six feet…

<p>Appeal from the Circuit Court of Autauga.</p> <p>Tried before the Hon. Porter, Kino.</p> <p>The defendant in this case was indicted for gaming, and, on his trial, reserved the following bill of exceptions to the rulings of the presiding judge:</p> <p>“ The State proved, that one Whetstone, within twelve months before the finding of the indictment, and in the county of Autauga, put up a small, fancy work-box, which he had for sale at his store, to be disposed of by a raffle; that the chances in the raffle were taken by several persons who were present, at one dollar per chance, and, amongst the number, by the defendant, who took one chance; that the raffle was conducted with dice, the party throwing the highest number with three dice being the winner; and that dice were the instruments most generally used in raffling. The proof further showed, that the tax assessed by law on the amount of said raffling had been assessed against, and paid by said Whetstone, pursuant to law. This was all the evidence in the cause; and thereupon the court instructed the jury, ‘that if they believed all the evidence to be true, they must find the defendant guilty;’ to which charge the defendant excepted.”</p>

Tried before the Hon. Alex. McKinstby. The prisoner, George Collins, was indicted for receiving stolen goods, tbe personal property of one Anderson, knowing them to be stolen; was convicted, and sentenced to three years imprisonment in the penitentiary.

Tried before the Hon. S. D. Hale. This was a proceeding by scire facias on a forfeited recognizance.

<p>[ACTION AGAINST SURETY ON PROMISSORY NOTlB.]</p> <p>1. Notice to creditor to sue principal.—A letter, Written by the surety to the fcrecl itor, containing this language, “ I am desirous that you should bring suit on M.’s note, On which I am surety, and would prefer that you enter suit in this county, early in August, so that the principal would not have the same time to dodge,’5 is not -such a notice te sue (Code, § 2647) as will discharge the surety if the creditor fails to sue as requested.</p>

Tried before the-Hon. Jo-hn É. Moore. The facts of this case, so far as they have any bearing; on the motion to dismiss the appeal, are stated in tket opinion of the court..

Heard before the Hon. James B. Clark. The bill in this ease was filed by Pleasant W. Kittrell, against Stith Evans, to enforce the specific performance of a contract which was, in substance, as follows: On the 15th December, 1848, complainant, being then a citizen of Alabama, aud about to remove to Texas, sold and delivered to the defendant, at the price of $1250, a negro man slave, named Carney, who was a blacksmith by trade; executed to him an absolute bill of sale, and…

Tried before the IT on. Nat. Cook. The record in this case shows, that William Garrett commenced a suit by attachment, on the 21st January, 1856, against A. T. Stewart, and obtained a judgment for $90 70, at the fall term of said circuit court, 1857; that a garnishment was .served on William Saunders, as the debtor of said Stewart, on the same day the attachment was issued; and that the said garnishee, at the term to which he was summoned, filed a written answer in these…

<p>Appeal from the Probate Court of Limestone.</p> <p>In the matter of the estate of Henry Meachem, deceased, which was duly declared insolvent by the said probate court on the 12th October, 1857, and against which a claim was filed by the appellant, as a creditor, within nine months after the declaration of insolvency. No objections were filed, either by the administrator or by any of the other creditors, against the allowance of this claim, until the final settlement of the estate came on to be heard; when written objections to it were filed, “denying its justice, and interposing the plea of the statute of limitations of three and six years.” The appellant “moved the court to dismiss' said objections, because they were not made or filed within twelve months after said estate had been declared insolvent. The court then stated, that it was understood between said administrator and the court, that all objections to claims against said estate might be made on the final settlement ;■ and overruled the motion to dismiss the objections.” This ruling of the court, and its final rejection of the appellant’s claim, to each of which exceptions were reserved, are the matters now assigned as error.</p>

In the matter of the estate of Owen Parker, deceased, ou final settlement of the accounts of Rhese C. Parker, the administrator. The assignments of error embrace all the rulings of the court to which exceptions were reserved by the distributees, some of which- require no special notice. The material facts are as follows: “ When the case was taken up, the debit side of the ■account was blank as to amounts.

<p>Appeal fro in the Chancery Court of Lowndes.</p> <p>Heard before the Hon. "Wade Keyes.</p> <p>The bill in this case was filed by James Harrison, against Henry G. Deramus, and alleged the following facts: That on the 29th January, 1852, complainant purchased from defendant, at the price of $4,000, a tract of land in Autauga county, on which were a dwelling-house, a saw-mill, and some other improvements, and which was represented by defendant to contain about eleven hundred acres; that at the time this contract was made, no conveyance of the lands was executed by the defendant, but a written memorandum was signed by him, showing the terms of the sale, which was made an exhibit to the bill, and which was in these words-:</p> <p>“ January 29th, 1852. Articles of agreement made and entered into day and date as above. Henry G. Deramus has this day sold to James Harrison his saw-mill, and all the land embraced in said mill-tract, containing about six hundred and -fifty acres; also, four hundred and sixty acres on the west side of the creek, embracing the lands bought of Lamar and some entered, with the appurtenances attached to said mill—carry-log, log-wagon, &c.; also, one negro man, Boykin; all Lor the sum of $4,000, to be paid -as follows—$1,000 by draft on Harrison k Robinson; tbe balance in equal payments, on one and two years, with security, either E. Harrison or J. Eh "Whitman. H. G. Deramus.”</p> <p>The bill alleged, that the complainant, when he entered into this contract, was ignorant of the precise location and quantity of the lands, and relied on the defendant’s representations in regard thereto; that his principal object in making the purchase, was to obtain the saw-mill and the timbered lands, for the purpose of carrying on the lumber business; that the defendant represented the lauds lying on the west side of the creek, which were chiefly valuable on account of the timber, to contain four hundred and sixty acres, when in fact they only contained about two hundred and sixty; that he also pointed out ■other lands, which were heavily timbered, as belonging to his tract, when in truth he did not own them; that all these representations were fraudulently made, and the ■complainant was thereby deceived and induced to make the purchase; that complainant took possession of the land under the contract, paid the $1,000 as stipulated, and gave his two notes for the balance of the purchase-money; that a short time afterwards, while complainant was on a visit to the defendant’s house at night, the latter delivered to him a deed for the lands, in which they were described according to the government surveys, and which he received and carried home with him without examination ; that on examining the deed the next morning, he discovered that there was a deficiency of about two hundred acres in the quantity conveyed, and immediately sent the deed back to the defendant; that defendant refused to take back the deed, but promised to make a satisfactory arrangement in regard to the deficiency of the land; that complainant was thereby induced to l’etain the possession of the land, and afterwards resold and conveyed to the defendant about three hundred and twenty acres of the mill-tract, including the dwelling-house and most of the cleared lands ; that the defendant afterwards refused to make any arrangement whatever on account of ■the deficiency in the quantity of land, but brought suit ■on the notes for the purchase-money, and recovered judgments thereon; and that the amount due on these judgments was not more than the amount which was due to the complainant on account of the deficiency in the quantity and quality of the land conveyed to him.</p> <p>The bill prayed, 1st, an injunction of the judgments at law; 2d, a rescission of' the contract on account of the alleged fraud, and an account “ with a view to place both parties in statu quo ; ” 3d, (in the event a rescission could not be granted,) that the defendant might be compelled to account for the deficiency in the quantity of lands ; and, 6th, for other and further relief consistent with equity and good conscience.</p> <p>The defendant answered the bill; denying the charges of fraud and misrepresentation on his part; and alleging that the exhibit to the bill, if it was a true copy of the writing which he signed at the time the contract was made, and which was written by the complainant, was incorrectly read to him at the time, as embracing only the number of acres which he had contracted to sell to the complainant.</p> <p>On final hearing, on pleadings and proof, the chancellor dismissed the bill; and his decree is now assigned as error.</p> <p>1. The bill seeks to have deducted from the unpaid purchase-money damages, or compensation, for the deficiency in the quantity of lands sold; and, in addition thereto, seeks relief on account of the fraud which is averred and proved against the defendant, in representing that the two tracts contained more lands than in fact they do, and in misrepresenting the boundaries. It is evident from the facts of the case that these misrepresentations must have been intentionally made, and they constitute an independent groundfor equitable relief. —Kennedy v. Kennedy, 2 Ala. 572.</p> <p>2. The complainant’s conduct, in selling back a part of the land to the defendant, is not a waiver of the fraud. Huckabee v. Albritton, 10 Ala. 657.</p> <p>3. The bill may well be maintained foqthe single purpose of recovering compensation for the deficiency in the quantity of the land.—Woodcock v. Bennett, 7 Cowen, 711; Pratt v. Law, 9 Cranch, 492; Pharr v. Bussell, 7 Iredell’s Equity Bep. 222; Thrasher & Mitchell v. Pinckard’s Heirs, 23 Ala. Bep. 616 ; Springle v. Shields, 17 Ala. 295.</p> <p>1. If any ground of rescission originally existed, it was waived by the complainant’s acceptance of the deed, with full notice of the deficiency in the quantity of lands conveyed by it, and his subsequent re-sale to the defendant of a part of the same lands; which conduct on his part is totally unexplained by the evidence..</p> <p>2. The sole object of the bill, then, so far as it is sustained by the evidence, is to obtain compensation out of the unpaid purchase-money; and in this aspect it is without equity, since the remedy at law is plain and adequate, and no special equity is shown.—Sims v. McEwen, 27 Ala. 184; Hatch v. Cobb, 4 Johns. Ch. 560; Kempshall v. Stone, 5 Johns. Ch. B. 195; Todd v. Gee, 17 Yesey, 279; Greenaway v. Adams, 12 Yesey, 395; 1 Sch. & Lef. 22; Jenkins v. Parkinson, 1 Cooper’s S. C. 179; Story’s Equity, § 798.</p>

<p>Appeal from the Chancery Court of Dallas.</p> <p>Heard before the Hon. James B. Clark.</p> <p>The bill in this case was filed by the appellees, as creditors of Charles K. Walker, and sought to foreclose a mortgage on two slaves, which the said Walker had executed to his sureties on the notes due to complainants, to indemnify them against liability thereon. The notes were due on the 1st July, 1855, and the mortgage contained a power of sale in the event of any default being made in their payment. The mortgage was executed on the 20th October, 1854, and was duly proved and recorded on the 15th November following. Before the law-day of the mortgage, the slaves were sold by the sheriff under executions against said Walker, which were issued on judgments rendered in November, 1854, and were purchased at the sale by Daniel S. Troy and C. C. Pegues. After the sale under execution, the mortgage was assigned to the complainants. The purchasers at the sheriff’s sale were made defendants to the bill, and filed answers, in which they alleged fraud in the execution of the mortgage, and demurred to the bill for want of equity. On final hearing, on pleadings and proof, the chancellor rendered a decree for the complainants, which the defendants now •assign as error.</p>

<p>Appeal from the Circuit Court of Dallas.</p> <p>Tried before the Hon. "William M. Brooks.</p> <p>This action was brought by D. W. McKellar, against Wilson H. Couch, to recover $75 for the use and occupation of a store-house during the year 1856. The only plea was mm assumpsit. It appeared from the evidence adduced on the trial, as set out in the defendant’s bill of exceptions, that the store-house belonged to the estate of one James M. Howard, deceased, of which the plaintiff and one James T. Jones were the administrators, and was rented by the plaintiff, acting for himself and his co-administrator, to the defendant, for the year 1855; that the defendant took possession under his lease, and retained the possession of the premises during the whole of the year 1855, and the month of January, 1856; that during the year 1855 the premises were sold by the administrators, “ under proper authority from the probate court, at public outcry,” and were purchased by the plaintiff, who received from his co-administrator a conveyance; and that the plaintiff had not been in actual possession of the premises, nor was there any express contract between him and the defendant. On this evidence, the defendant asked the court to charge the jury,—</p> <p>“1. That if he rented the premises from Jones and McKellar for the year 1855, and McKellar individually bought the land in 1855, and the defendant held over during the month of January, 1856, then he cannot be held to be in possession under the terms of the renting for 1855, and the plaintiff can claim nothing in this action from-such renting.</p> <p>“ 2. That if the plaintiff’s vendors, by their contract with him, were to put him in possession, and he never ■was in possession, he has no right to bring this action.</p> <p>“ 8. That if the plaintiff never got title until the 22d April, 1856, as evidenced by his deed, and was never in possession under his purchase, he cannot recover in this action.”</p> <p>The refusal of these charges, to which exceptions, were reserved, is now assigned as error.</p>

<p>Appeal from the Circuit Court of Tuskaloosa;</p> <p>Tried before the Hon. ¥m. S. Mudd.</p> <p>This was a motion to enter up an award of arbitrators as the judgment of the circuit court. The submission and award, on which the motion was predicated, were as follows :</p> <p>“Tuskaloosa, January 18, 1858. At a meeting of the president and directors of the Tuskaloosa Bridge Company, pursuant to a call by the president, and held by appointment at the office of J. M. Van Hoose in the city of Tuskaloosa; Robert Jemison, jr., president, and Seth King, director, being present, and J. M. Van Hoose being appointed secretary, pro iem.,—the following resolution was adopted, to-wit:</p> <p>‘“Hesolved, That the unsettled matters of account existing between Robert Jemison, jr., and the Tuskaloosa Bridge Company, which the parties have not been able to settle, be referred to the arbitrament of James M. Van Hoose and Newton L. Whitfield, who, in the event they •disagree about any matter connected with the arbitrament, are authorized to call in a third person to decide between them ; the company, through its secretary and treasurer, Seth King, and the said Jemison, to submit to the said arbitrators all accounts, vouchers, letters, writings, and books of entry, relating to said matters of account between the parties, and to furnish a list of the witnesses to be examined, in due time to procure the attendance of said witnesses; the said arbitrators being hereby authorized and required to take testimony in the premises by deposition or otherwise, and to enter upon the settlement here submitted to them as soon as they [have] settled the matters connected with the bridge-company at Columbus, Mississippi, referred to them by the said Jemison and King. ' R. Jemison, Jr.,</p> <p>President Tuskaloosa Bridge Co.</p> <p>Seth King, Sec. and Treas. R. Jemison, Jr.’</p> <p>“In the matters of account between the Tuskaloosa Bridge Company and Robert Jemison, jr., referred to us by the parties by resolution of the board of directors of said company, passed at a called meeting of the directory on the-day of-, 1858, we, the arbitrators named in said resolution, having met at the office of J. M. Van Iloose, on the 27th January, 1858, pursuant to notice, and having taken the oath prescribed by statute for arbitrators in such cases, and the said parties being present, have this day entered on said matters, of settlement. The said company, by Seth King, acting as its secretary, having filed the company’s account against the said Jemison, and the said Jemisou having filed his account against the said company, we have turned over to the respective parties said accounts for-their mutual inspection, and adjourned, to meet at 3 o’clock, P. M. this day.” (The award here sets out several meetings and adjournments of the arbitrators.) “ February 24,1858. Met pursuant to adjournment, the parties being present. Examined the lumber account of Jemison, and determined that it amounts to -feet, and is worth $3,574 89. Examined also Jemison’s account for labor on the bridge, and found that it amounts to $222 95; making a total of $3,777 84, besides interest. The above amount is allowed, subject to errors; the interest on the same to be settled hereafter.” “March 8,1858. Having investigated and decided on the accounts of Seth King, treasurer and individually, against the said company, we resumed the investigation of the accounts of said Jemison against the company, and decided to allow his account for the lumber, and interest on the same as it is stated, to-wit, $3,777 84.” “Met pursuant to adjournment. After further investigation, we decide to exclude the item, of $800, extra cost on said bridge, charged against Jemison. We have allowed the amount of said company’s account against Jemison, to-wit, the sum of $817 15, as stated. On making the account rendered, we find there is due said Jemison from said company the sum of $3,605 15, with interest from the 1st January, 1858. It is therefore our award, that said Tuskaloosa Bridge Company pay to said R. Jemison, jr., the sum of $3,605 15, with interest thereon from the 1st January, 1858. Given under our hands, this 4th March, 1858.</p> <p>J. M. Van Hoosb,</p> <p>N. L. Whitfield.”</p> <p>The bill of exceptions states, that when the motion of Jemison, to have the award entered up as the judgment of the court, came on to be heard, “ the defendant made sundry objections as to the defects and deficiency of the said motion, and of the submission and award; all of which were overruled by the court, and the defendant excepted.”</p> <p>The rendition of judgment on the award is the only matter assigned as error.</p>

<p>Appeal from the Circuit Court of Madison.</p> <p>Tried before the Hon. William M. Brooks.</p> <p>This action was brought by John W. Scruggs, against William D. Bibb, and was commenced by attachment. Tbe cause of action was a promissory note for $182 36, dated January 1, 1845, and payable on the 1st July next after date, which was alleged to be lost; and all tlie com.mon money counts, with a count on an award, were added in the complaint. The defendant pleaded the general issue, with leave to give any special matter in evidence ; and the cause was submitted to a jury on issue joined thereon.</p> <p>On the trial, as appears from the hill of exceptions, the plaintiff read in evidence the deposition of W. L. Patton, (with the exception hereafter referred to,) which was taken in Jackson, Mississippi, the place of the defendant’s residence. This witness testified, in substance, that the note in suit, enclosed in a package with some other papers relating to the same matter, was handed to him by the plaintiff) in Huntsville, Alabama, in tbe summer of 1853, with the request that he would show them to the defendant on his return to Mississippi; that he mentioned the matter to the defendant ón his return home, but did not show him the papers ; that the defendant said, in reply, that he intended to start to Huntsville in a few days, and would there see the plaintiff about it; that the papers were afterwards deposited by witness in a fire-proof safe in a counting-house in Jackson, and could never after-wards be found. The third cross interrogatory propounded to this witness, called on him to state what the defendant said, when the claim was mentioned to him: to which the witness answered : “ Mr. Bibb said, that he had a receipt against the claim, and that he was going to Huntsville, and would there settle the matter.” In reading the deposition in evidence, the plaintiff moved the court to exclude from the jury that portion of the above answer which is italicized, on the ground that it was illegal and irrelevant. The court overruled the motion, on the ground that it came too late; and the plaintiff excepted.</p> <p>Among the papers, the loss of which was proved by the witness Patton, was an award rendered by William IT. Powers and James J. McClelland, as arbitrators, under a submission by the parties to this suit of the claim now in controversy. Powers, one of the arbitrators, was introduced as a witness by the plaintiff, and testified, that the submission to them was made in the early part of the year 1853; that both the parties were present when the arbitrators first met,—the plaintiff’contending that the claim was unpaid, and the defendant insisting that it had been paid ; “ that the defendant said, the note was embraced in a settlement which he and the plaintiff had made, which settlement and receipt he had at his house in Mississippi, and requested that the award should not be made for a specified time, (which was several months,) within which, he said, he could get the receipt, and send it to the arbitrators ; that the arbitration was accordingly adjourned, without specifying any day to meet again; that they waited out the time specified, but no receipt was sent; that they then met, and made an award in writing, which was signed by both the arbitrators, and was delivered by them to the plaintiff; that the award was, in substance, that the defendant should pay the plaintiff the amount of the note with interest; and that no notice was given by them of said meeting, or of said award, except its delivery to plaintiff'.”</p> <p>The defendant offered in evidence a receipt signed by the plaintiff, dated August 20, 1848, which was in these words: “ Received of W. I). Bibb iiayment in full of all claims against him which are due up to this date.” This receipt, except the signature, was proved to be in the defendant’s handwriting, “was written on a piece of account paper, and had the appearance of having been written at the bottom and cut off above in the original.”</p> <p>The court charged the jury, 1st, “that the award was void according to the evidence, and the plaintiff could not recover thereon ; ” 2d, “ that the receipt offered by the defendant was presumptive evidence that the note had been paid.” The plaintiff excepted to each of these charges, and requested the court to instruct the jury, “that they might look to all the evidence in the cause, to see if said note was embraced in the settlement on which said receipt was given.” The court “ did not give this charge as asked, but again instructed the jury, that the receipt was presumptive evidence of the payment of the note, and that the plaintiff could not recover on the note unless he had introduced evidence which satisfactorily rebutted that presumption; ” and to these rulings of the court the plaintiff excepted.</p> <p>The rulings of the court on the evidence, and in the instructions to the jury, are now assigned as error.</p>

<p>[BILL-IN EQUITY FOR DIVORCE ON GROUND OF ABANDONMENT.]</p> <p>1. Proof of plaintiff’s residence.—To entitle a party to a divorce, (Code, § 1969,) when the defendant is a non-resident, the plaintiff must allege and prove his own bona-fide residence in this State for one year next before the filing of the bill.</p> <p>2. What constitutes abandonment.—The husband cannot obtain a divorce on the ground of abandonment, (Code,-§ 1961,) on proof that he removed to this State more than twenty years before the filing'of his bill, and that his wife afterwards refused to comply with her promise to follow him: he must show a refusal on her part to live with him for three years next before the commencement of the suit.</p>

<p>Appeal from tbe Probate Court of Sumter.</p> <p>In the matter of the final settlement and distribution of the estate of John H. Sherard, deceased, on the application of the widow for compensation on account of her dower interest in the lands, which had been sold, with her consent, under an order of the probate court. “ The lands were sold, by order of court, on the 15th December, 1855; the widow filing her written assent thereto under the statute, and agreeing to take her portion of the proceeds of sale, which ($37,145), with interest thereon, amounted to $41,354 74. It was proved, in behalf of the widow, that she was, and always had been, perfectly healthy and free from disease, was thirty-seven years old, and had no separate estate; and that the decedent died in June, 1855. No other proof was introduced on the subject; and the court thereupon allowed her one-ninth of the proceeds of sale and interest; to which ruling of the court the widow excepted, on the ground that the allowance was too small,” and which she now assigns as error.</p>

(The name of the presiding judge is not shown by the record.) This was an application for a rehearing after final judgment at law, under section 2408 of the Code.

Tried before the lion. Robert Dougherty. This was an application for a rehearing after final judgment at law, under section 2408, by Ezekiel Stewart, who was the plaintiff in the action at law. The action was commenced in April, 1846, and was founded on the defendant’s promissory note for $35, and his breach of a written agreement to deliver to plaintiff a horse, wagon, and yoke of oxen.

Heard before the Hon. James B. Clark. The bill in this case was filed by Charles Stewart, for the purpose of obtaining from the defendant, John Stokes, a divestiture of the legal title to a tract of land, which the complainant had purchased from one Willis B. Stokes, who had previously purchased it at sheriff’s sale under-execution against said John Stokes, his father; and to enjoin, tlie said John. Stokes from cutting and hauling away timber from the land.

<p>[BILL IN EQUITY TO ESTABLISH RESULTING TRUST IN SLAVES.]</p> <p>1. When resulting trust will be established in equity.—Where the surviving brothers and sisters of a decedent agree, that the money arising from the sale of his lands may be appropriated to the use and support of their father and mother, during the rest of their lives; and one of them, having the money in his possession, invests it in the purchase of a slave, taking the title in his own name, a resulting trust arises, at the election of the other brothers and sisters, in their favor ; but, when they file a bill to. establish and enforce such trust, they must allege that the slave was purchased and paid for with the trust funds.</p> <p>2. Dismissal of bill without prejudice.—When a bill is defective for want of necessary allegations, but the evidence shows that the plaintiffs have a good cause of action, the bill should not bo dismissed absolutely ; and if the chancellor, on final hearing on pleadings and proof, dismisses the bill absolutely, the appellate court will so far reverse his decree as to order the dismissal to be without prejudice.</p>

Tried before tbe Hon. William S. Mudd. The record in tbis case shows tbe following facts : On tbe 5tb March, 1858, a submission and award were returned into tbe office of tbe clerk of said circuit court, which were as follows: “'Articles of agreement, between Robert Jemison, jr., acting individually, and Seth King; and between tbe Columbus (Miss.) Bridge Company, represented by R. Jemison, jr., as its president, and Seth King.

<p>'[bill in equity to enforce vendor’s lien for purciiase-money of land.]</p> <p>1. JEqnilable estoppel against assertion of vendor's lien.—A court of equity will not enforce a lieu for the unpaid purchase-money of land, at the suit of an administrator of the deceased vendor, when it appears that the purchaser also is dead; that his estate was duly declared insolvent, and settled as such; that the -land was sold, under an order of the probate court, as belonging to his estate; that the vendor’s administrator was a bidder at the sale, and publicly stated that the purchaser would got a good title; and that he iiled the notes for the purchase-money as claims against the purchaser’s estate, and received his pro-rata share of the proceeds of the sale of the land, which he does not offer in his bill to return or account for.</p>

<p>Appeal from the Circuit Court of Franklin.</p> <p>Tried before the Hon. John E. Moore.</p> <p>The record in this case shows these facts: On the 27 th September, 1852, John Sevier obtained a judgment in the circuit court of Franklin county, against one John L. Bunch, for $251 71 debt, and $13 38 damages, besides, costs; and on the 7th November, 1856, sued out process of garnishment thereon, and summoned James Tkrockmorton as the debtor of said Bunch. At the ensuing spring term of the court, the garnishee filed an answer, denying all indebtedness to the defendant; which answer was sworn to and subscribed, before the clerk of the court, on the 31st March, 1857. At the same term, but on what day the record does not show, the court rendered a judgment, discharging the garnishee on his answer. On the 1st April, 1857, the plaintiff made affidavit before the clerk, contesting the correctness of the garnishee’s answer; and the garnishee joined issue thereon. On the trial of this issue, at the spring term, 1858, the court instructed the jury, “that the garnishee’s answer was evidence for him; ” to which the plaintiff excepted, and which he now assigus as error.</p>

<p>Appeal from the Circuit Court of Lauderdale.</p> <p>Tried before the Hon. Bobert Dougherty.</p> <p>This was an application for a rehearing’, after final judgment at law, under section 2408 of the Code. The application was made by the defendants in the action, who also executed a statutory bond to supersede an execution which had been issued on the judgment. The court dismissed the application, because it appeared that the petitioners, who were shown to be non-residents, had not given security for the costs of the proceeding; to which ruling of the court the petitioners excepted, and which they now assign as error.</p>

Tried before the Hon. E. W. Pettus. This action was brought by Allen & Eeynolds, against the appellants, to recover damages for their conversion of a buggy in August, 1855.

Heard before tbe Hon. James B. Clark. This bill was filed by the appellant, against the company and individual members of the Tuskaloosa aud Northport Manufacturing Company, a private corporation chartered by tbe legislature of this State; and sought to ascertain aud obtain I137 decree of the court tbe value of his interest as a stockholder in said corporation.

Heard before the Hon. Wade Keyes. The bill in this case was filed by Mrs. Lydia Ann Sessions, against the administrator of her deceased husband, John B. Sessions, and alleged tbe following facts : That the complainant and her said husband were married about the year 1840; that in 1847, her father, Thomas Bowman, departed this life in said county, leaving her his only child and heir-at-law; that no administration was ever taken out on his estate, because it was entirely free…

<p>[ACTION COMMENCED BY ORIGINAL ATTACHMENT.]</p> <p>1. Motion to quash attachment by stranger to record.—An original attachment, regular on its face, and supported by a regular affidavit, cannot be quashed, on the motion of a stranger to the record, “who is shown to have an interest in the question and motion,” for matter dehors the record, which is properly triable by a jury.</p>

<p>[ACTION OK BILI, OF EXCHANGE, BY ENDORSEE AGAINST ENDORSER.]</p> <p>Í. Damages against payee and acceptor.—In an action against the payee antf endorser of an inland bill of exchange, duly protested' for non-payment,, tbe mere fact that the bill was addressed to,, and: accepted by the defendant,, does not relieve him from tila payment of damages.</p> <p>2. When writ of inquiry is unnecessary.—In an action on an inland bill of exchange, duly protested for non-payment, by endorsee against payee aiy endorser, the statute (Code, § 2366) authorizes the rendition of a final, judgment by default, without the intervention of a jury, for the amount of the bill, with interest and damages.</p>

<p>[ACTION FOR BREACH OF WARRANTY OF SOUNDNESS OF SLATE.]</p> <p>1. Admissibility of slave’s declarations.—The declarations of a slave, complaining of sickness, and detailing her symptoms, are competent evidence on the principle of res gestee, as well as from the necessity of the case, though made to a person who is not a physician; seats, as to her declarations, to the effect “ that she had been that way, off and on, for the last year or two.”</p> <p>2. Gharge on question of damages, excluding porlian of evidence from consideration of jury, erroneous.—Plaintiff having introduced a physician as a witness, who testified that, in his opinion, the slave whose soundness was in controversy was diseased at the time of the sale, and valueless; and there being no evidence of the actual value of the slave at that time, if she was not valueless,—it is error in the court to instruct the jury; “that if they were satisfied that the slave was unsound at the time of the sale, and if they believed the testimony of said physician as to her worthlessness, then they must find the full value of the slave for the plaintiff, although, on the whole proof, they might believe that the disease did not render her wholly valueless.”</p>

Heard before the Hon. Wade Keyes. The original bill in this case was filed by Schnetz k Hewitt, of Louisville, Kentucky, on the 3d August, 1850. Held: that the complainants were entitled to be first paid, ouf of the proceeds of the sale of the boat, for their entire debt; that the claim of French & Co. was next entitled to precedence; and that the residue of the funds should be applied to the satisfaction, pro tanto, of the debts of the attaching creditors.

<p>[MOTION TO AMEND JUDGMENT NUNO PKO TUNC.]</p> <p>1. Admissibility of parol evidence to affect record.—On motion to amend a record nunc pro turn, so as to make it show that a judgment by default was rendered on the fourth, instead of the third day of the term, the correctness of the entries on the minutes of the court, showing the meeting and adjournment of the court, and the day on which the judgment was rendered, cannot be contradicted or impeached by parol testimony, which does not show fraud.</p>

In the matter of the last will and testament of John A. Stubbs, deceased, which was propounded for probate by James B. Stubbs, who was a brother of the testator and the sole beneficiary under his will, and was contested by the appellees, who were the children of a deceased sister of the testator.

<p>Appeal from the Circuit Court of Marengo.</p> <p>Tried before the Hon. C. W. Rapier.</p> <p>The appellant in this case, having obtained a.judgment against one Ellis, summoned the appellee, by process of garnishment, as the debtor of Ellis. The garnishee appeared, and filed an answer, wbicb, at tbe fall term, 1856, was stricken from tbe files on motion of tbe plaintiff1; and a judgment nisi by default was then rendered against him. At tbe ensuing term, tbe judgment nisi was- set aside, on tbe motion of tbe garnishee, and be was examined orally in open court as to his indebtedness to Ellis. Tbe plaintiff' contested tbe correctness of this answer, and tendered an issue on several specifications of its incorrectness. Tbe garnishee objected to tbe sufficiency of these specifications, and excepted to tbe overruling of bis objections; and he reserved several other exceptions to tbe rulings of tbe court in tbe formation of the issue joined on bis answer. At tbe fall term, 1857, on motion of tbe garnishee, tbe court dismissed tbe garnishment proceeding, because it appeared that tbe plaintiff1, who was admitted to be a non-resident, bad not given security for the costs when tbe garnishment was sued out; to wbicb tbe plaintiff excepted, and wbicb be now assigns as error.</p>

In the matter of tbe estate of Joel Burt, deceased, on the application of Thomas D. Curtis, tbe appellant, for the revocation of letters of administration previously •granted to Thomas M. Williams, and the grant of letters to himself.

Tried before tbe Hon. C. W. Rapier. The complaint in this case was as follows: “William Otis ’aims of the defendant James Rhodes. r__________, __________D, in Clarke county, upon or near a water-course, or creek, called Bashi creek, which, in the winter-time, and at other rainy seasons, was navigable by rafts of large size, and by vessels of many tons burden, and which was at such times commonly used for such navigation, been engaged in cutting, hewing, and getting large…

Heard before the Hon. John Foster. The bill in this case was filed by Matthew IT. Bone, and Martha, his wife, against the executors and legatees of Fleming J. McCartney, deceased, and sought to set aside the probate of the said McCartney’s will, which bad been admitted to probate by the probate court of said county. The testator was the son of Mrs. Bone by a former husband.

In the matter of the last will and testament of Joseph A. Blakey, deceased, which was propounded for probate by the testator’s widow, and contested by his six children by a former marriage.

Tried before the Hon. Ales. MoKinstry. This action was brought by T. & J. M. Meagher, suing as partners, against the president, directors and company of the Bank of Mobile, to recover the value of certain bank-notes, which were destroyed by the burning of the steamboat Orline St. John in March, 1850.

Tried before the Hon. Nat. Cook. This action.was brought by the appellant, against the owners of the steamboat William Jones, jr., to recover the sum of |1550, with interest thereon, alleged to have been delivered to the defendants, in the city of Mobile, on the 23d December, 1853, to be delivered to Greenwood & Co., at Benton, in Lowndes county, and to have been lost by their negligence.

<p>Appeal from tire Circuit Court of Pickens.</p> <p>Tried before the lion. William S. Mudd.</p> <p>This action was brought by William GL Mustin, against •James T. Burdine, and Mary, his wife, and was com- ' menced in a justice’s court. ¿^g^!tsiice%aving rendered judgment against the defe^^^A&sL.3|urdine appealed to the circuit court, and e^eisfed an appeal l|ond, without joining her husband. In me|«c^£^&%,£the plaintiff and Mrs. Burdine only ap¡paced; and that court rendered judgment, dismissing the Sppg^g'®t]ifee&Sst|í)f Mrs. Bur-dine and her sureties. Eroa^jhis judgpaenf Mrs. Burdine sued out an appeal, and executeffan^Tppeal bond, wherein the judgment is-described as having been rendered “in a cause between William GL Mustin, as plaintiff, and James T. Burdine and his wife, Mary, as defendants.” On these facts, the appellee’s counsel submitted a motion to dismiss the appeal, on account of the insufficiency of the appeal bond; which motion was resisted by the appellant’s counsel, on the ground that the motion came too late.</p>

Tried before the Hon. S. D. Hale. The amended complaint in this case was as follows: “Albert T. Henley r The plaintiff also claims of the vs. J defendant $1000, for the breach of an Edmund T. Bush.

Tried before the Hon. C. W. Rapier. This was a trial of the right of property in a slave named Frank, between the Branch Bank at Montgomery, plaintiff in execution against Warren Green, and said Green as claimant, under his appointment by the chancery court as trustee in a deed hereinafter mentioned.

Heard before the Hon. Wade Keyes. The bill in ibis case was filed by John Gill Shorter, against Edmund Sheppard, in bis own right, and as administrator of George W. Lore, deceased, and the infant heirs-at-law of said Lore.

Tried before the Hon. John Gill Shorter. This action was brought by the appellees, suing as partners, against Gardner Elliott; was founded on two judgments, rendered by the circuit court of Greene, on the 18th October, 1848, against Hubbard, Eames & Elliott, of which firm the defendant was a partner; and was commenced on the 15th September, 1856.

Tried before tbe Hon. E. W. Pettus. This action was brought by William Pearson in his life-time, and afterwards revived in tbe name of bis administrators; and was founded on tbe defendant’s promissory note, of which tbe following is a copy : “ $265. Twelve months after date, I promise to pay John T. Watson, or bearer, tbe sum of two hundred and sixty-five dollars, for tbe hire of a negro man, named Joseph, for twelve months.

Tried before the Hon. William S. Mudd. The amended complaint in this case was as follows: “ John M. Sprowl 7 The plaintiff claims of the dens.

Tried before the Hon. Alex. McKinstry. This was a summary proceeding, by notice and motion, instituted by tbe Bank of Mobile, against George L. Pearce, and was founded on tbe defendant’s promissory notes for $2,900, dated the 8th March, 1857, payable and negotiable at the Bank of Mobile, ninety days after date, to David' Stodder, by whom it was endorsed and transferred to the said bank.

Tried before the Hon. Nat. Cook. The complaint in this case was in these words: “ Richard K. Harrison, plaintiff, claims of the defendant, Bolling Smith, who is brought into court by attachment, the sum of two thousand dollars as damages, for that whereas, heretofore, to-wit, on the 20th May, 1838, the defendant made his promissory note, bearing date the said 20th May, 1838, whereby the said defendant promised, on the first day of January next after the date thereof, to pay…

<p>[PETITION FOR SALE OF PERSONAL PROPERTY OF DECEDENT’S ESTATE.]</p> <p>1. Sufficiency of appeal bond as security for costs.—A bond, conditioned as supersedeas bonds usually are, is a sufficient security for the costs of an appeal, (Code, § 3041,) although the decree appealed from is one which cannot be superseded.</p> <p>2. Jurisdiction of probate court to order sale of decedent’s personal estate.—Under the act of 1854, (Session Acts 1853-4, p. 45,) the probate court has no authority to order the sale of a decedent’s personal estate, for the purpose of making distribution, when that power is vested in the executor by the will.</p> <p>3. Executor’s authority to sell property.—Where the testator’s will directs all his property, both real and personal, to be “ valued by three disinterested men, and divided or sold,” and the proceeds of sale to be distributed among the legatees, but does not designate the person by whom the sale is to be made, the executor has the power to sell.</p>

Tried before the Hon. Alex. McKinstry. This action was brought by E. E. Eoscue against the appellants, as common carriers, to recover damages for the loss of two bales of cotton, which were shipped on hoard of the steamboat Eliza Battle, of which boat the defendants were the owners, consigned to Goode & Hlrick at Mobile, but never delivered. The only plea was the general issue.

Tried before the Hon. William M. Brooks. This action was brought by Howell Rose, against Martha M. and Bennett S. Griffin, to recover “the south half of section throe, in township nineteen, range nineteen, in the Tallapoosa land-district,” together with damages for its detention. The defendants pleaded not guilty, and made the statutory suggestion as to the erection of valuable improvements under adverse possession for three years.

<p>Appeal from the Probate Court of Talladega.</p> <p>In the matter of the estate of Wm. Jenkins, deceased, on the petition of the widow, who had dissented from the will, for her distributive share of the personal property. The only matter assigned as error in this court is “ the refusal of the court below to allow the appellant [the executor] commissions, as shown in the bill of exceptions.” The ruling of the court below is thus stated in the appellant’s bill of exceptions: “ The executor moved the court to allow him two-and-a-half per cent, commissions for receiving, and the same per cent, for .disbursing, on the sum of $48,856, or such other sum as the court may now here decree to be paid to the said widow as her distributive share. It was admitted, that the said executor had performed his trust well and faithfully. The court refused the motion, and ruled that commissions could not be allowed on any other property than money, or the representative of money; to which decision of the court the executor excepted,” &c. The decree of the court shows, that this amount, $48,856, on which the executor asked the allowance of commissions, “ was composed of the following items: Cash and cash notes, $16,950 25; bank-stock, $7,600 ; negroes, $29,900 ; mules, $860; cattle and oxen, $305; grain, stores, &c., $2,240 75—amounting in all to $48,856.”</p>