Volume 34 — Alabama Reports

Heard before the Hon. James B. Clark. The bill in this case was filed by John Belcher and Susan, his wife, against Green B. Sanders; and sought to establish and enforce an implied trust, in favor of Mrs. Belcher, in certain slaves which the defendant had purchased at the sale of the personal property belonging to the estate of Lewis Abbott, deceased, who was the father of Mrs. Belcher, and the father-in-law of the defendant.

Heard before the Hon. Wade Keyes. The bill in this case was filed by Nathaniel Y. Alston,against William J. Alston, his father, and the administrator of William Cade, deceased, who was his father’s surety; and sought a settlement and account of his father’s guardianship.

Tried before the lion. Robert Dou&herty. This proceeding was commenced by notice and motion for a summary judgment, against William J. Underwood, and the sureties on his official bond, as school superintendent of the county of Russell, on account of his failure to pay over to the trustees of the township, on their demand, a balance of $261 14 of the funds in his hands to which the township was entitled.

<p>Appeal from tlie Circuit Court of Greene.</p> <p>Tried before the Hon. Vm. S. Mudd.</p> <p>The complaint in this case was in these words :</p> <p>“ Minor & Bizzell [ The plaintiffs claim of the vs. >- defendants $250 as damages, the Jemison,Eicklin & Co. ] value' of a horse, property of plaintiffs, killed and destroyed on the — day of —, 1856, by their agent or servant, while pursuing and acting in the usual and ordinary business and employment of said defendants. The plaintiffs claim of the defendants, also, the further sum of $250 as damages, the value of a horse, property of plaintiffs, which the said defendants hired of them, and which died of injuries inflicted on the-day of-, 1856, caused by reason of the negligence, want of care or skill on the part of the defendants’ agent or servant, while using the same, in the ordinary business and employment of the defendants.”</p> <p>The defendants interposed the following pleas:</p> <p>“1. For answer to the first count in the complaint, defendants say actio non, because they say it is not true that a horse, the property of the plaintiffs, was killed and destroyed on the -day of- 1856, by the agent or servant of the defendants, while pursuing and acting in the usual and ordinary business and employment of the defendants, as alleged and specified in said complaint. 2. For answer to the second count in said complaint, defendants say actio non, because 'they say it is not true that a horse, the property of plaintiffs, died of injuries inflicted on the-day of-, 1856, caused by reason of the negligence, want of care or skill, on the part of the defendants’ agent or servant, while using the same, in the ordinary business and employment of said defendants, as alleged and specified in said complaint. 3. For further answer to said complaint, defendants say actio non, because they say they had no agent or servant, who was authorized by them to take, use or procure the plaintiffs’ horse, at the time alleged in said complaint, in the ordinary business and employment of said defendants, or for any other cause or purpose; nor was plaintiffs’ horse at any time injured or destroyed in any manner by the defendants, thejr agent or servant.”</p> <p>On the trial, the following exceptions were reserved by the defendants to the rulings of the court:</p> <p>“On the trial of this cause, the plaintiffs .introduced evidence tending to show that, in February, 1856, and for some months prior thereto, certain persons owned and were engaged in running a stage-line, for the transportation of the mail and the conveyance of passengers, on tbe route between Columbus, Mississippi, and Selma, Alabama, through the town of Eutaw; that plaintiffs hired a horse to said persons, through their agent, to be worked in the stage, and to he used and employed on said stage-line; that said horse, while so used, worked and employed by them, received injuries which caused his death, to recover for which injuries and loss this suit is brought; that at the time of the hiring of said horse, and of the injury and loss complained of, the persons who owned and ran said line of stages, and whose agent hired said horse, did business under the firm name of Jemison, Eicklin & Co., and also under the firm name of Jemison, Eicklin & Powell; and that they acted, and were as well known hy one of said firm names as by the other. The defendants then offered evidence tending to show that, prior to July, 1855, two lines of stages were run on said route between Columbus and Selma; that one of said lines was owned and run by Robert Jemison, Doughton Eicklin, Benjamin E. Eicklin, and Green T. Hill, doing business under the firm name of Jemison, Eicklin & Co.-; that the other line was owned and run by Jas. R. Powell and others, doing business under the firm name of J. R. Powell & Co.; that these two firms united about the 1st July, 1855, and a new firm was formed, composed of Robert Jemison, Houghton Eicklin, Benjamin E. Eicklin, Green T. Hill, James R. Powell, George R. Timherlake, and E. C. Taylor, taking the firm name of Jemison, Eicklin & Powell; that one of said stage-lines ceased on the formation of said new firm, and only one line has been in operation on said ■ route from that time to the present, employing the same stages, horses, &c., that had previously been employed by said two firms. After this evidence on the part of the defendants [had been introduced], the plaintiffs offered one Spencer as a witness, and proposed to prove by him that, subsequent to July, 1855, and during that year, as well as during a part of the year 1856, he did blacksmith-work on the stages, and shod horses employed on said stage-line; that he charged the work done by him to Jemison, Eicklin & Co.; that he repeatedly presented his accounts, for work done during that period, charged to Jemison, Ficklin & Co.; and that said accounts were settled by said Benjamin F. Ficklin, without any objection on bis part that the work had been improperly charged, or the accounts improperly made out. The defendants objected to the introduction of this evidence, and, their objection being overruled by the court, excepted. The defendants also moved to exclude said evidence from the consideration of the jury, and excepted to the overruling of their motion.'</p> <p>“ The defendants offered F. C. Taylor as a witness, who is above mentioned as one of the persons composing the firm of Jemison, Ficklin & Powell, and proposed to prove by him, that he was a member of the firm of Jemison, Ficklin & Powell; that said firm was composed of Robert Jemison, Doughton Ficklin, Benjamin F. Ficklin, Green T. Hill, James E. Powell, George E. Timberlake, and himself, said Taylor; that plaintiffs’ horse was being worked by said firm of Jemison, Ficklin & Powell at the time he was injured, and was procured for their use and service from plaintiffs, and was not hired by the defendants, Jemison, Ficklin & Co., nor to be used by them; that the firm of Jemison, Ficklin & Co. was composed of Robert Jemison, Doughton Ficklin, Benjamin F. Ficklin and Green T. Hill, and had previously sold out to Jemi-son, Ficklin & Powell; and that he (witness) had never been a member of the firm of Jemison, Ficklin & Co, To the introduction of said Taylor as a witness, for the purposes aforesaid, the plaintiffs objected, and the court sustained their objection; to which ruling of the court, refusing to permit said witness to testify, the defendants excepted.”</p> <p>These two rulings of the court are now assigned as error.</p>

Tried before the Hon. E. W. Pettus. This action was brought by Jacob Bookman against John E. Womack, and was founded on the defendant’s two promissory notes. The summons was issued on the 5th October, 1857, and service was acknowledged on the nest day.

Tried before the Hon. E. “W. Pettus. This action was brought by Ashley W. Spaight, as administrator, Mrs. Matilda M. George, as administratrix, and James George, the husband of said Matilda, as joint administrator in right of his wife, of Mrs. Letitia A. McNair, deceased, against the executor of Robt. J. English, deceased, to recover certain slaves and other personal property, together with damages for their detention.

Tried before the Hon. Nat. Cooe. This action was brought by Mrs. Margaret C. Bennett, against Burgess Bennett, who was the administrator of the plaintiff’s deceased husband, Jerome Bennett. The complaint contained all the common money counts, and sought to charge the defendant individually.

<p>Appeal from the Circuit Court of Greene.</p> <p>Tried before the Hon. PokteR King.</p> <p>This action was brought by John Hunter against Bartholomew Fuller, and was founded on the defendant’s promissory note for $516. The only defense interposed by tbe defendant was the plea of set-off, and on the issue joined on that plea the plaintiff recovered a verdict and judgment for twenty-seven cents. The set-off was proved on the trial by the testimony of one T. E. Fuller, a witness summoned for that purpose by the defendant. Seven witnesses were summoned by the plaintiff to impeach said Fuller, and eleven by the defendant to sustain him ; and all these witnesses were examined on the trial. After the trial, the defendant moved the court to tax the plaintiff with the costs of all thése witnesses, which, including the fees of the clerk for issuing the subpoenas, of the sheriff for executing them, and of the attendance of the witnesses, amounted to $132 25. The court taxed the plaintiff with the costs of the witness Fuller, but refused to tax him with the other costs; to which latter ruling the defendant excepted, and which he now assigns as error.</p>

Tried before tbe Hon. S. D. Hale. This action wTas brought by the Tuslkegee Insurance Company, a corporation chartered by the legislature of this State, (Session Acts 1855-6, p. 257,) against Albert G-. “Wray, and was founded on the defendant’s bill of exchange for $1828 80, dated the 17th April, 1857, addressed to one Joseph A. Jones, payable thirty days after date to the defendant’s own order, and endorsed to plaintiff.

Heard before the Hon. Wade Keyes. The bill in this case was filed by the appellants, Robt. 0. Collins and William Langworthy, against Richard B. Owens, and sought a settlement of the accounts between the parties as equal partners in a livery stable in Montgomery. After the coming in of the answer, the chancellor ordered a reference of the matters of account to the master.

Tried before the Hon. A. A. ColemaN. This action was brought by Wm. L. Buckley, against Columbus Cunningham and LaEayette Morrow, to recover damages for a breach of warranty of the soundness of a slave, named Will. The only plea was the general issue. On. the trial, as appears from the bill of exceptions, the plaintiff offered in evidence the depositions of Dr. F. A. Boss, Dr. J. C. Nott, John P. Smith, and Wm. McCall.

Robt. Bougi-ierty presiding, to compel that court to strike from its docket a cause wherein Graham Beavers, the petitioner, was plaintiff, and John T. Hardie & Co. were defendants. The facts on which the application was predicated, as shown by the accompanying transcript, are these: At the November term, 1857, a judgment on verdict was rendered in said cause for the plaintiff.

Tried before the Hon. JOHN E. Moore. This action was brought by Priscilla’ Wilson against John T. Parmer and John W. Chisholm, and was founded on the defendants’ note under seal for $162 67. Both of the defendants were served with process. At the return term of the writ, the suit was dismissed as to Chisholm, and a judgment by default entered against Farmer.

Heard before the Hon. James B. ClaRK. The bill in this case was filed by William H. McKleroy, against Paul Tulane and others, and sought to have a tract of land sold for the payment of the purchase-money. The land was bought by McKleroy & Co., a mercantile partnership iu Wetumpka, which was composed of the complainant and one Leonard H. Hamilton as equal partners.

Tried before the Hon. Robt. Dougherty. The bill of exceptions in this case is in the following words: “ This was an appeal from a justice’s court, and was tried de novo in the circuit court, on the pleas of non assum/psit and payment. The plaintiffs were introduced as witnesses, under section 2779 of the Code, and swore to the sale and delivery of the goods, as charged in the complaint and shown by their books, and that their said account was just and correct, and unpaid.

Tried before the Hon. Alex. McKiNStby. This action was brought by P. A. Julian, against Dominick O’Grady, to recover damages for the wrongful and malicious suing out of an attachment. The plaintiff was a merchant in Mobile at the time when the attachment was sued out against him, and was indebted to the defendant in the sum of about $85; and the ground on which the attachment was sued out was, that he was about to dispose of his property fraudulently.

Heard before tbe Hon. James B. Claek. The bill in tins ease wras filed by Hives, Battle & Co., commission-merchants iu Mobile, against Richard B. Walthall and Thomas H. Hill; and sought to have a mortgage, executed by said Hill to bis co-defendant, declared fraudulent and void as to complainants, or foreclosed for their benefit.

Tried before the Hon. ¥m. M. BROOKS. This action was brought by Eugene O’Leary against Patrick Mahoney, and was founded on the defendant’s promissory note for $457 80, dated the 27th February, 1858, and payable one day after date. The summons was issued on the 1st March, 1858. At the return term, the defendant, pleaded in abatement, on account of the premature commencement of the action, and also demurred to the complaint on the same ground.

Heard before the Hon. James B. Clark. The material facts in this case are the following: On the 30th September. 1850, George W. and Jehial Read, a mercantile firm in the city of New York, sued out an attachment, before the clerk of the circuit court of Tuskaloosa county, against the estate of George Sprague, as an absconding debtor.

Tried before the Hon. JOHN Gtll Shoetee. This action was brough by Underhill E. Davis, against Joseph Eorshee. The complaint contained all the common money counts, the amount claimed by the plaintiff being $1300. The defendant pleaded non assumpsit, payment and set-off.

Tried before the Hon. William M. Bbooes. This action was brought by James Hudgins, against William M. Glass, to recover damages for an alleged fraud or deceit perpetrated by the defendant in an exchange of mules between him and the plaintiff. The fraud was alleged to consist in the fact, that the defendant, at the time of the exchange, had no title to the mule which he traded to the plaintiff, and well knew that fact at the time the contract was made.

The record does not show who .was the presiding judge. This action was brought by Henry Brewer, against Horace Ware. Service of the summons and complaint was accepted by the defendant. At the March term, 1858, judgment by default was rendered against the defendant; but the judgment did not show that any proof of the acknowledgment of service was made. From this judgment, on the 80th July, 1858, the defendant sued out the present appeal.

Tried before the lion. Nat. Cook. This action was commenced in the name of Mary D. Lamkin, whose marriage with Franklin R. Witter, pending the suit, was suggested at the term at which the trial was had. In consequence of the rulings of the court during the trial, the plaintiff was compelled to take a nonsuit, with a bill of exceptions.

<p>[action on open account.]</p> <p>1. Waiver of security for costs. — In an action brought by a non-resident, and commenced in a justice’s court, if the defendant appears before the justice, and engages in a trial on the merits, he cannot, after tbe cause has been removed by the plaintiff to the circuit court, move to dismiss it for want of security for the costs.</p>

Heard before the Hon. Wade Keyes. ON the 25th March, 1841, Ogden, Ferguson & Co. obtained a judgment, in the county court of Mobile, against Thaddeus Sanford, for $5,846 69, besides costs. 'This… Held: that the defendants, Townsend and Dawson, under their purchases at the sheriff's sale, were entitled to priority over the complainants; and he rendered a decree accordingly, which the complainants now assign as error.

<p>[ACTION iron -OSE AND OCCUPATION OP LAND.]</p> <p>1. Conflict between judgment entry and bill of exceptions. — Where there is a conflict Between the judgment entry and the hill of exceptions, the latter must control the former.</p> <p>2. Service of writ on partners. — Where the summons describes the two defendants as late partners, but the complaint contains no such description or averment; and the summons is executed on but one of them, who alone appears and pleads, the rendition of judgment against both is unauthorized .</p>

Heard before the Hon. James B. Clase. The bill in this ease was filed, on the 28th May, 1851, by Eugene Simon, against N. S. Graham and Edward Camp; and sought to redeem a certain tract of land, which had been sold under execution against said Simon on the 21st May, 1849, and purchased at the sale by said Graham, who, before the filing of the bill, had sold and conveyed to his co-defendant, Camp, who was in possession when the bill was filed.

Tried before the Hon. E. ~W. Pettus. The complaint in this case was as follows: “ Elijah Rigby The plaintiff claims of the defend-vs. I ant the sum of $2,397 40, due by John A. Norwood, j him on the 1st January, 1857, by his guaranty, dated 1st October, 1853, of a promissory note for the sum of $1,806 81, made by James C. Norwood on the 7th March, 1850, and cine one day after the date thereof, (with a credit on said note of $300 on the 2d December, 1850, with interest…

Heard before the Hou. Wade Keyes. The bill in this ease was filed by Wesley N. Capell and Harvey 8.

Tried before the Hon. Nat.,Cook. Tins action was brought by N. S. Stetson, against Sophia Lyons, to recover a balance of $5496, due by account on the 1st January, 1857 ; and was commenced by attachment. The defendant pleaded the general issue, payment, and the statutes of limitations of three and six years.

Tried before the Hon. E. W. Pettus. Tins action was brought by Woodruff & Beach, as partners, against Bobert Jemison, jr., to recover the price agreed to be paid for two steam-engines manufactured by the plaintiffs, under a contract with the defendant, and delivered to him. The complaint contained all the common counts, and a count on a bill of exchange; the bill having been given by the defendant, on the delivery of the engines, in part payment of the price of the engines.

Tried before the Hon. Syd. Mooee. This action was brought by Claiborne Gr.

Heard before the Hon. James B. Clase. The bill in this case was filed, on the 2d January, 1856, by Mrs. Lucy J. Coleman, a married woman, suing by her next friend, against Samuel Greenwood, her father, and others. Its object was, to enforce a partition of certain slaves between the complainant and her only sister, Leonora Greenwood, and to compel the said Sam’l Greenwood to account for the hire and profits of said slaves, which were in his possession.

Tried before the lion. Nat. Cook. This action was brought by William B. Whitley,, against John Murray.

Tried before the Hon. William S. Mudd. This action was brought by James P. Tarry, against Wilson R. Brown, Thomas D. Cole, and Reuben W. Cole, to recover damages for the defendants’ tortious act in forcibly taking from the plaintiff’s possession several slaves.

Heard before the Hon. Wade Keyes. The original bill in this case was filed by Eleazar Galloway, against William Parish aiid Roger Parish, who were the brothers of the complainant’s wife, and sought, 1st, to recover certain slaves in the possession of said Roger, which the complainant claimed under a deed from Anna Parish, deceased, who was a sister of his wife; 2dly, to set aside as fraudulent an instrument of writing by which complainant released his interest in said slaves…

In the matter of the estate of John B. McRee, deceased, on the application of James C. McRee and A. W. Hurst, as the administrators of Caleb P. McRee,' deceased, for a final settlement of their intestate’s administration on the estate of said John B. McRee. The application was filed on the 14th December, 1857 ; and the court thereupon appointed the 10th January then next for the settlement, and ordered notice and publication in the usual form.

Tried before tire Hon. C. W. RapiER. The transcript in this case is very defective, containing only the judgment, bill of exceptions, and appeal bond. The action was brought by Daniel Nolen, against William Williams, and it seems -to have been either detinue for the recovery of certain bales of cotton, or trover for their conversion.

Tried before tbe lion. Bobert Dougherty.. This action was brought by Josiah Lightsey, against William Johnson, to recover the freight agreed to be paid by the defendant fo? the transportation of several hundred hales of cotton from Selma to Mobile, at the rate ot one dollar and a quarter per balo.

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

Tried before the Hon. William M. Bbooks. This action was brought by Mrs. Jane R. Storrs, to recover a lot in Wetumpka, of which the defendant, Thos. W. Mason, was in possession, together with damages for its detention; and was commenced on the 4th September, 1855.

Tried before the Hon. Joins Gill Shouter. This action was brought by Lee &■ Larkins, as the assignees of Pruitt & Cothran, a mercantile firm in the town of Elba, against Green B. Knowles; and was founded on an open account for §>70 85, for goods, wares and merchandise sold and delivered to said defendant during the year 1855.

Heard before tbe Hon. James B. Clark. The bill in this case was filed by William Pearce, tbe appellant, against Joseph M. N. B. Nix, Thomas T. Wall, and Timothy Church.; and sought to obtain a decree… Held: that Wall was not entitled to protection as a bona-fide purchaser without notice; but he dismissed the complainant’s bill, for want of sufficient proof of the payment of the purchase-money; and his decree on that point is now assigned as error.

Tried before tbe Hon. Ales. McKiNSTRY. This action was brought by Joseph Ferri, against the appellants, to recover the freight agreed to be paid for certain hogsheads of sugar and molasses, transported by him from New Orleans to Mobile for the defendants.

Nat. Cook. This action was brought by John Lucas, against John Daniels, to recover three slaves, to-wit, Caroline, Manuel and Perry, together with damages for their detention ; .and, on the death of the defendant pending the suit, was revived against Mrs. Susan Daniels, his widow and ad-ministratrix.

Heard before the Hon. James B. ClakK. The bill in this case was filed by Mrs. Mary S. Wright and her husband, Joseph J. Wright, against… Held: 'that the statements of the deed, as to the quantity of land conveyed, were mere matter of description, and did not constitute a covenant or guaranty of quantity; citing to that point the following authorities: Powell v. Clark, 5 Mass. 355; Stebbins v. Eddy, 4 Mason, 414; Butterfield v. Cooper, 6 Cowen, 481; Allison v. Allison, 1…

Heard before the Hon. Wade Keyes. Tiie bill in this case was filed by the distributees and heirs-at-law of Benjamin N. Mock, deceased, together with the personal representatives of several deceased dis-tributees, against David A. Steele, who had been the administrator of said Benjamin Mock: and sought to obtain equitable relief against a decree of the probate court of Lowndes, erroneously allowing to said Steele, on final settlement of his accounts as such administrator, a…

Tried before the Hon. E. W. Pettus. This action was brought by Joseph A. Wilson, against Mrs. Mary English, to recover the sum of f 170, alleged to be due from the defendant, for work and labor done by the plaintiff in adding two rooms to the defendant’s dwelling-house. “ On the trial,” as the bill of exceptions states, “ the plaintiff offered evidence tending to show, that he built two rooms as an addition to the defendant’s house, and at her request; also, the value of…

Tried before the Hon. JoHN Gill Shorter. This was a motion against the sheriff and his sureties, for his failure to make the money on an execution in favor -of Mrs. Maria Walker, as executrix of John H. Walker, deceased, against Goodman & Mitchell. On the rulings of the court to the jury, the plaintiff was compelled to take a nonsuit, with a bill of exceptions.

Tried before the Hon. Nat. Cook. The record in this case shows, that the defendant, Edmund Gaillard, was summoned “to answer the complaint of Isaac C. Dubose and Emanuel Jones, merchants and co-partners, trading under the name and style of I. C. Dubose & Co.” The complaint was in the name of I. C. Dubose & Co., and did not state the individual names of the partners composing the firm.

IN the matter of the partial distribution of the estate of Thomas W. Coker, deceased, whose last will and testament had been duly admitted to probate in said county, and contained the following residuary clause: “ Lastly, t is my will that the residue of my estate, both real and personal, be converted into cash, as my executors can do so to the interest of the legatees, and the whole amount be equally divided, pro rata, between my niece, Frances Ellen Johnson, and the…

<p>[indictment por gaming.]</p> <p>1. Waiver of objection to plea.' — Id a criminal case, if issue is joined on a plea and a trial is had thereon, without objection on the part of the State, the appellate court will not, at the instance of the State, treat such plea as a nullity.</p> <p>2. Plea of former conviction. — Under the plea of former conviction in a gaining case, if the record of the former conviction, and the parol evidence adduced in aid of it, fail to show conclusively the non-identity of the two cases, the court is not authorized to instruct the jury, that if they believe the evidence, they must find the prisoner guilty.</p>

Fbom the Circuit Court of St. Clair. Tried before the Hop. William S. Mudd.

ERom the Circuit Court of Greene. Tried before the Hon. Vm. M. Bkooks, The indictment in this case was found at the fall term of said circuit court, 1857, and was in these words: “The grand jury of said county charge, that before the finding of this indictment, Amasa M. Borman, not a druggist keeping a.regular drug-store, or practicing physician, sold, exchanged, or bartered away for money, or other consideration of value, or for the promise or expectation thereof, within…

Ekom the Circuit Court of Autauga. Tried before the Hon. A. A. ColbmaN.

Tried before the Hon. Eobert Dou&herty. The indictment in this case was found at the March term of said circuit court, 1859, and contained two counts) the first charging, that the defendants, Elisha Hudson and Thomas C. Carlisle, “ unlawfully-, aud with malice aforethought, killed a negro man slave, named Gus, the property of one William Fuller, by shooting him with a gun;” and the second, that said defendants, “ with malice aforethought, caused the death of a negro man…

Ekom the City Court of Mobile. Tried before the Hon. Alex. McKiNStkv.

Tried before the Hon. Robt. Dougherty. Ties was a motion, in the name of the State of Alabama, for the use of William Long, against Thomas H. Burch, late clerk of said circuit court of Russell county, and the sureties on his official bond, “for the failure of said Burch to pay over money collected by him on witness-certificates.” The court rendered judgment against all the defendants, for $38 85; from which judgment an appeal was sued out by William E. Barnett, one of the…

Tried before the Hon. Alex. McKiNSTry. The plaintiff in error, Hazael Warfield, was indicted for an assault on one John Eeid, with intent to murder him ;, was found guilty of an assault, and a fine of $2,000 was assessed against him by the jury; and thereupon the court rendered the following judgment against him : “It is therefore considered by the court, that the State of Alabama have and recover of the defendant, H. Warfield, and of Caleb Price, his surety, the said sum of…

Ebom tbe Circuit Court of Pike. Tried before tbe Hon. Eobeet Doughebty.

Tried before the Hon. Alex. McBÚNstry. • The indictment in this ease contained two counts, the first of which was in these words : “ The grand jury of said county charge, that before the finding of this indictment, one Bostick, whose first name is tó the jury unknown, having in his possession a certain falsely altered, forged, or counterfeited instrument, purporting to be a bank-bill for one hundred dollars, issued, or purporting to be issued, by the Bank of the State of…

Bryant, William Bryant, James Dobbins, and Eliza Byers; bail having been refused them by the Hon. Wni. S. Mudd, presiding in and for the circuit court, of Tuskaloosa.

Tried before the Hon. Nat. Cooe. The record in this case shows these facts: On the application of Elijah- Bell and others, for the establishment of ^public road in said county of Dallas, the commissioners’ court of said county, at its May term, 1858,' appointed a jury “to view and mark out” the proposed road. On the 14th June following, in vacation, the jury returned their report to the court.

Tried before tbe Hon. Ales. McKiNSthy. This was a statutory suit for freedom, (Code, § 2049,) instituted by Maria Louisa, a woman of color, against Edward Farrelly, the appellant. The defendant denied the allegation of freedom, and insisted that tbe petitioner was bis slave; and the cause was submitted to a jury on an issue of freedom vel non.

Heard before the Hon. Wade Keyes. The bill in this case was filed by the appellees, who were the surviving children and heirs-at-law of William Ilall, deceased, against Samuel Wilson and others ; and… Held: that William Hall, under the 14th article of the treaty, (for which see the

IN this ease, Charles T. Pollard, James T. Holtzclaw and N. W. Cocke, executors of the last will and testament of Thomas M. Cowles, deceased, who were relieved by an express provision in their testator’s will from giving bond for the faithful discharge of their duties as such executors, were required by an order of said probate court, granted on the application of one Robert J. Ware, a creditor of the estate, to give bond with sureties, in the penal sum of $1,000,000, by the…

These two cases were argued and submitted separately. The former was brought up by appeal from the circuit court of Greene, and was there tried before the Hon. JOHN Gill Shoetee; the latter was an appeal from the probate court of Lauderdale.

Tried before the lion. Wm. M. Brooes. This action was brought by Wilson H. Couch, against J. D. W. McKellar, to recover damages for%ie defendant’s act in “ wrongfully,… Held: that malice was not necessary to sustain an action on the ease for wrongfully suing out an attachment. But that case was decided by a divided court; and that it is contrary to the uniform and unbroken current of decisions, is shown by the authorities above cited. Nor can it be sustained on principle.

Heard before the Hon. Wade Keyes. The material facts shown by the* record are these: Caleb P. McBee and Martha Ann Burt were married, in this State, on the 17th January, 1847.

IN the matter of the final settlement and distribution of the estate of Samuel R. Pate, deceased, by John Mc-Innis, tbe executor.

Heard before the Hon. James B. Clark. The bill in this case was filed by Mrs. Maria R. Parkman, as the administratrix of the estate of her deceased husband, Elias Parkman, against Aicardi & Tool, A. E. Bayol, and Thornton B. Goldsby; and sought to enjoin the defendant Bayol from sub-letting to his co-defendants, Aieardi & Tool, a certain storehouse in the city of Selma, which he had rented from said Goldsby, and which belonged jointly to said Goldsby and Elias. Parkman.

Tried before the lion. John Gill Shoktes. This action was brought by James T. Burnett, against the Town Council of Cahaba, to recover the sum of $1000, alleged to be “ due by account on the 1st March, 1855, the same being money paid said defendant unlawfully for a license for the year 1855.” A demurrer to the complaint was intei’posed, but overruled. “ On the trial,” as the bill of exceptions states, “the plaintiff proved by one Lodor, who was cleric, secretary and treasurer…

Tried before the Hon. Bobt. Boughebty. This action was brought by Benjamin You, against James Flinn, to recover the possession of certain lots in the town of Newton in said county, together with damages for their detention ; and was commenced on the 15th February, 1858. The plaintiff claimed the lots under a purchase at sheriff’s sale against James J. Flinn, who was the father of the defendant.

. Tried before the Hon. Nat. Cooe. This action was brought by William Parmer, against. John King, to recover damages for the conversion of an ox, alleged to be of the value of one hundred dollars. The jury returned a verdict for the plaintiff, and assessed his damages at thirty-nine 50-100 dollars ; and. the court thereupon rendered judgment in his favor for that amount.

Heard before the Hon. James B. Clark. The bill in this case was filed by John Shackelford, against the heirs-at-law of his deceased wife, whose maiden name was Maria L. Turner; and sought the reformation of an ante-nuptial contract executed by the complainant and his said wife, so as to make it provide that, on the death of the wife leaving no children, the property conveyed should go to the complainant, instead of the heirs of the wife.

Heard before the Hon. JOHN Eostee. The complainants in this case, who were the children and grand-children of Mrs. Nancy E. C. by her'first husband, filed their bill against her surviving second husband, Samuel B. ~W., and the children of said second marriage ; asking a partition of certain slaves, and general relief.

Heard before the Hon. James B. Claek. The bill in this ease was filed by Noel A. Vaughn and Sarah A., his wife, against Jeremiah E. Lovejoy and wife, George M.… Held: that Mrs. Goldsmith, by her marriage with Yaughn, forfeited her interest in the slaves, and was therefore improperly joined as a co-plaintiff with her husband. He consequently sustained the defendants’ demurrer on account of such misjoinder, and dismissed the bill; and his decree is now assigned as error.

Ou final settlement by Abram Martin of bis accounts as guardian of Wade H. Allen, bis late ward, the court allowed.the guardian five per cent, commissions on the amount of his receipts, and two-and-a-half per cent, on the amount of his disbursements; and in ascertaining the amount of his disbursements, abalance of over $24,000 in the guardian’s hands, for which a decree was rendered against him in favor of the ward, was included.

Poutee Kins presiding, to compel the entry of a nonsuit in a case therein pending, wherein Crox-ton & Henry were plaintiffs, and the petitioners were defendants. The facts shown by the record, which was made a part of the motion, are these: The action was brought by Croxton & Henry, against C. I). Lawrence and others, as the sureties of one Tandy P. Duncan, deceased, on his official bond as sheriff of said county of Pickens ; and was commenced on the 15th September, 1856.

This was an application by Jeremiah Smith, for a writ of prohibition, or other remedial process 'from this court, to be directed to the chancery court of Randolph, Hon. JoHN Fostee presiding, to vacate, set aside, and prevent further proceedings under an interlocutory order of said chancery court, rendered in a suit therein pending, wherein said Jeremiah Smith was defendant, and Mrs. Margaret E. Smith, his wife, complainant.

Tried before the Hon. Nat. Cook. IN this ease, the commissioners’ court of Lowndes county, on the application of J. H. Robertson and others, granted an order changing one of the public roads of the county. The application was contested by Samuel W. Bowie, who was made a party to the proceedings for that purpose, and who removed the proceedings by certiorari into the circuit court.

IN the matter of tbe last will and testament of Joseph K. Walker, deceased, which was propounded for probate by William W. Hardy, the executor therein named, and contested by Thomas Walker, who was a brother and heir-at-law of the testator, on the grounds of fraud, undue influence, insufficient attestation and execution, and mental incapacity on the part of the testator.

Tried before the Hon. Nat. Cook. This action was brought by A. B. Oxford, against W. B. Band, to recover damage!? for the conversion of a slave named Sarah. The only plea was the general issue.

Tried before tbe Hon. Nat. Cook. This was a trial of tbe right of property in two slaves,, between Beard & Henderson, plaintiffs in execution, against David Edwards, and James E. McAdams, as-claimants. Tbe levy was made on tbe 3d December* 1855; and the claimant made the statutory affidavit, and gave the required bond, on the 7th January, 1856.

Tried before the Hon. C. W. RapieR. The appellant was prosecuted, before the mayor of the city of Mobile, for the violation of a municipal ordinance, and was fined $50.

Tried before tbe Hon. C. ~W. Rapieb. This action was brought by R. C. Torrey, as the administrator of George R. Hendree, deceased, against Lorenzo James, and was commenced in a justice’s court.

C. W. Rapieb. This action was brought by' John Fleming, against-Israel Moore, and was founded on the defendant’s written contract, dated the 26th September, 1860, a copy of which is set out in the opinion of the court. The,only plea was-the general issue, with leave to give any special matter in evidence.

Heard before tbe Hon. Nat. CooK. This action was brought by the appellants, as partners, against Jno. M. Walkeand Clementine M. Walke, his wife; the complaint, as set out in the record, being in these words: “ The plaintiffs claim of the defendants seventy-four dollars, due by ¡promissory note made by them on the 1st June, 1857, and payable one day after date, with interest thereon.

Tried before tbe Hon. JoHN Gill ShoRtek. IN this case, at the spring term, 1857, after the rendition of a judgment on verdict for the defendant, on motion for a new trial, the court made an order in these words: “ It is-considered that said motion be granted, on the sole condition that the plaintiff pay all costs in four months.” At the next ensuing term, the defendant moved the court to strike the case from the trial docket, on these two grounds : 1st, because the order…

Wade Keyes. The bill in this case was filed on 6th March, 1858, by-Montgomery S. Relfe, against his brother, Blakely J. Relfe, and the personal representatives and heirs-at-law of his deceased… Held: prima facie, barred by mere delay; and that period must be the time limited for the recovery of the subject-matter of the claim.

Tried before tbe Hon. C. W. Rapier. The complaint in this ease was as follows: “William M. Stallworth h Tbe plaintiff claims óf tbe vs. >defendant tbe sum of five hun-Holden Preslar. j dred dollars, being one-balf the sum of one thousand dollars, paid by said jdaintiff in satisfaction of a certain judgment rendered in tbe county court of Monroe county, Alabama, at its January term, 1842, for tbe sum of three thousand four hundred and sixty-six 81-100 dollars, together with…

Tried before the Hon. Nat. Cook. This action was brought by James K. Brazeale, against tbe administrator of Mrs. Malinda J. Rodgers, deceased.

Heard before the Hon. Wade Keyes. The petition in this ease was filed by Mrs. Erancis L. Bryan, the wife of Leonidas L. Bryan, and sought to remove their children from the custody and control of her husband. The opinion of the court contains a sufficient statement of the facts. On final hearing, on petition, answer and proof, the chancellor dismissed the petition, at the costs of the co^nplainant’s next friend; and his decree is here assigned as' error.

Tried before the Hon. Vm. S. Mudd. Detihue by Matthew A. Marshall, against Abram Johnson and Thomas A. J. Cliatt, for four slaves, to-wit, Amos and Sylva, with their two children. The defendants executed the statutory bond, and retained the possession of the slaves. The cause was tried on issue joined, 'but no pleas appear in the record.

Tried before tbe Hon. Wm. M. Buboes. This action was brought by Samuel M. Stewart, against Thomas H. Lewis, as the administrator of John L. Buckner, deceased, to recover contribution for money paid by plaintiff, as co-surety with defendant’s intestate, on an injunction bond, which was in the following words: “Know all men, by these presents, that we, John E. Roehell, Samuel M. Stewart and John L. Buckner are held and firmly bound unto James L. Evans, register in chancery for…

Heard before the Hon. Wade Keyes. The bill in this case was filed by John H. Morgan, against Frederick A. Cowles, and Lucretia C., his wife; and sought to subject Mrs. Cowles’ sepai’ate estate to the payment of a note executed by her, jointly with her said husband, on the 16th January, 1857.

Tried before the Hon. Nat. Cook. This action was brought by the administrator of John A. Bell, deceased, against'Warren B. Andrews, to recover the sum of ninety-two 23-100 dollars alleged to be due by open account, and also on an'account stated, “for work and labor done by plaintiff for defendant, and for board and lodging furnished by plaintiff to defendant, at defendant’s special instance and request.” The defendant pleaded, in short by consent, ne ungues administrator,…

Heard before the Hon. James B. Clabk.' The bill in this case was filed by Mrs. Martha Paulk, suing by her next friend, against her husband, their children, and certain judgment creditors of her husband ; and sought to restrain the creditors from further proceedings at law, to subject to the satisfaction of their several judgments certain slaves, in which the complainant claimed a separate estate for life, with remainder to her children.

Heard before the Hon. Nat. Cooe. The complaint in this case, as amended, was as follows : “ Joseph J. lioundtree v The plaintiff claims of the de-vs. Vfendant $26,000 damages, for John Brantley.

IN matter of the final settlement and distribution of the estate of Richard H. Puryear, deceased, which was duly declared insolvent on the 29th October, 1855. It appeared on said final settlement, at the December term, 1858, that there remained in the hands of the administrator, after paying in full all the claims against the estate which had been allowed by the court, a surplus of nearly nine thousand dollars.

Tried before the Hon. Nat. Cook. The record in this case shows the following facts: On the 12th Mai’eh, 1858, Turner Ivey, “apportioner of Mill beat No. 2 in said county,” returned Z. W. Salter as a defaulter, “in failing to make all the hands apportioned to him in his precinct work on the road, with and when the other hands worked, at his last working in the spring of 1858.” On this return being made, Salter was summoned before a justice of the peace of the county, “to…

Heard before the Hon. James B. Clare. The material facts of this case, as disclosed by the bill, answer, and testimony, may be thus stated : Jane E. Garrett, the daughter of John Garrett, was married to Nathan B. Garrett in September, 1841, in this State.

Tried before tbe Hon C. W. Rapiee,. This action was brought by L. N. Walthall, as tbe administrator ofRobert T. Goree, deceased, against Marrast & Lee, commission-merchants in Mobile, to recover tbe sum of $>1804 57, “the balance of tbe proceeds of one hundred and fourteen bales of cotton, sold by defendants as tbe factors of, and for and on account of said Robert T. Goree in bis life-time and was commenced on tbe 29th April, 1858.

Tried before the Hon. Nat. Cook. This action was brought by William A. Kimbrough, against John W. Davis and Walter B. Band; was founded on the defendants’ promissory note for $500, dated 1st June, 1855, payable on the 1st March, 1857, with interest from date, to B. B. Thomas or bearer, and endorsed by said Thomas to plaintiff; aud was commenced on the 10th March, 1857.

Tried before the Hon. AhdRew B. Mooke. This action was brought by the children, heirs-at-law and devisees of Peter Walker, deceased, against Mrs. Maria Murphy, to recover a tract of land in said county, of which said Peter Walker was seized and possessed at the time of his death, and to which the defendant derived title under a purchase at private sale from the executors of said Walker.

Heard before the Hon. James B. Claek. The bill in this case was filed by 'William E. Bierce, against John Wilson and Richard Davis, on the22d February, 1856; a¡nd sought to obtain the rescission of a contract, by which the complainant purchased from said Wilson the right to make, use and vend, within the State of Tennessee, “a certain improvement in looms,” for which said Wilson had obtained a patent from the United States on the 29th May, 1849; and also to enjoin an action…

IN the matter of the estate of G-eorge W. Coker, deceased, which was regularly declared insolvent on the 22d October, 1855, and against which the appellant, as the surviving partner of the firm of J. B. & P. M. Dennis, had filed as. a claim an account for $189 92.

Tried before the Hon. C. W. Bapieü. This action was brought by William Bower & Co., late partners, for the use of John N. Smith, against Alanson Saltmarsh, and was commenced on the 7th, October, 1847. The cause of action was the sum of $2,818 23, alleged to be due on an account stated, for goods, wares and merchandise sold and delivered, for money had and received, and money paid, laid out and expended, as stated in the com'mon money counts.

Heard before the Hon. James B. ClaRK. The bill in this case was filed, on tbe 18th December, 1852, by Joseph S. Oliver and others, children and heirs-at-law of Whiting Oliver, deceased, against Henry Lucas and James H. Judkins. Its object was to set aside a mortgage sale of a tract of land, and let in the complainants to redeem.

Heard before the Hon. James B. Clakk. The bill in this case was filed, on the 23d March, 1858, by William M. Bell, against Bobert Thompson.

Heard before the Hon. “Wade Keyes. The bill in this case was filed by Charles B. Dickinson, the appellant, against William M. Lewis, William Grant, John Van Bardóme, and Caleb C. Garthwaite, partners in trade under the successive firm names of Lewis, Grant & Co., and Lewis, Garthwaite & Co.; and alleged, in substance, the following facts: In June, 1848, Dickinson, who was a clothing-merchant in Mobile, entered into a contract with Lewis, Grant & Co., who were manufacturers…

IN tbe matter of the estate of George E. Iluckabee, deceased, on the petition of his widow (now Mrs. Harriet H. Andrews) for her distributive share of the estate. The decedent was married to the petitioner in January, 1842 (?) and died in March, 1851.

Tried before tbe Hon. Alex. McXiNStry. This action was brought by E. B. Sheppard and C. B. Hopkinson, against James T. Shelton, and the sureties on his official bond as sheriff of Mobile county ; the complaint being in the following words: “ The plaintiffs claim of the defendant one thousand dollars, for the breach of the condition of a bond made by the defendants on the 4th day of August, 185S, payable to the State of Alabama, with condition as follows,” &c., (setting out…

Tried before the Hon. Nat. Cook. This action was brought by Pinckney L. McCoy, against John Ii. Walker, to recover the sum of $200, alleged to be clue by account on the 1st August, 1857; on an account stated; for money had and received, and for money paid, laid out and expended.

Clair. Heard before the Hon. JAMES B. Clark. The bill in this case was filed, on the 3d March, 1848, by Bussell J. Allen, against Andrew J. Crawford, Russell J. Kelly, John 3). Fennell, and others, distributees of the estate of George A. Kelly, deceased.

Tried before the Hon. Alex. McKiNstry. Tins action was brought byP. E. Flint, against Francis M. Johnson and David Stodder, and was founded on an appeal bond, which was executed by the defendants as the sureties of one Robert S. Kirk, and conditioned as follows: “Whereas the above bound Robert.

<p>Appeal from the Chancery Court of Dallas.</p> <p>Heard before the Hon. JaMes B. Clare:.</p>

In the matter of the estate of Mrs. Elizabeth Crenshaw, deceased, on the respective applications of Daniel II. Bingham and William M. Crenshaw for the grant of letters of administration. The intestate was the widow of Ereemau Crenshaw, deceased, and died in Limestone county, the place of her residence, on the 13th October, 1857, intestate.

Tried before the Hon. JoHN Gill Shouter. This action was brought by the Bank of Brunswick, (now the Union Bank,) a corporation chartered in Georgia, against Alonzo G. Storey ; and was founded on a bill of exchange for $5,000, drawn By Allen Elston on Slough, Elston & Co., of Mobile, dated the 15th February, 1852, payable ten months after date, to the order of J. D. Elston, aud endorsed by said J. I).

Tried before tbe Hon. K,obt. Dou&hekty. This action was brought by John II. Williamson, against Ilowell Sammons, to recover damages for the conversion of a horse. The plaintiff bought the horse in controversy from one Fields, in January, 1855, and after-wards sold him to one Henry P. Graham.

Appeals from the Circuit and Probate Court of Lowndes. Tried before the Hon. Nat. Coos, and lion. E. H. Cooe.

Tried before the lion. Jonif Gill Shorter. This action was brought by Littleton Olive against Henry Athey, and was founded on the defendant’s promissory note for $500, dated the 14th February, 1857, and payable on or before the 1st January, 1858, which was proved to have been given in part payment for the purchase-money of a slave.

Tried before the Hon. John Gill Shoeteb. This action was brought by Frederic .Stewart, against Todd R. Wyatt, to recover damages for the conversion of twenty thousand pounds of seed cotton and nine hundred bushels of corn, which the defendant, as sheriff of said county, had seized and sold under execution as the property of one Thomas L. Pledger; and was commenced on the 14th January, 1856.

Tried before tbe Hon. Nat. Cook. This action was brought by W. B. Andrews, against M. J. A. Keith, to recover the purchase-money agreed to be paid for certain pieces of marble and tomb-stones, ■which the plaintiff had sold, as sheriff of Dallas county, under execution against one J. M. N. B. Nix, and which were knocked off at the sale to the defendant, as the highest and best bidder.

In tbe matter of tbe estate of Joel Burt, deceased, on the application of Thomas D. Curtis, the appellant, asking tbe revocation of letters of administration previously granted to Mrs. Jane Burt, the decedent’s widow, and the grant of letters to himself. The facts of the case, as shown by tbe petition, are these: The decedent was a resident of Lowndes county, and died in said county, on the 28th November, 1858, intestate.