Volume 37 — Alabama Reports

Heard before the lion. Wabe Keyes'. ■ The facts of this case, as disclosed .by the averments of the bill, are these : Alley Riley died, in 1S29, in Autauga county, Alabama ; and b.y bis last will and testament, which was duly admitted to probate after bis death, devised and' bequeathed to his widow, Mrs. Lorcas Riley, a life-estate in all his property, consisting of lands and slaves.

Tried before the Hon. Robeet Dougiiekty. This action was brought by Mrs. Mary McCall, against' Tilomas Polly and James Eh Whitman, to recover damages for the overflowing of plaintiff’s lands by the defendants’’ .diversion of water from its natural channel.. The defendants pleaded “the general issue, and the statute of limitations,” in short by consent; and the cause was tried on issue joined on these pleas.

Tried before the Hon. Robert Dougherty. This action was brought by Iienry McClellen, as admin* istrator da bonis non of the estate of Mary Wynn, deceased, against George L. England and Reese Howell, and was commenced in a justice’s Gourt.

Tried before the Hon. Egbert Dougherty. This action was brought by John Bolling, against-A. F. Whittle, to recover damages - for a trespass to land¡« The complaint was in the form prescribed by the Code,page 555.

Heard before the Hon. James B. Clakk. The bill in this case was filed for the purpose of obtaining-a. judicial construction of the will… Held: that Mrs. Wjmne took an equal interest with her children, and no more, both in the annual increase of the property after-the payment of debts, and in the house and lot purchased by the executor under the fourth clause ; and that, while she whs entitled to receive and retain the entire annual profits, she could not invest' any portion…

Circuit -Court of Calhoun. Tried before the Hon. S.-LX Hale. .. This action was brought-by M. W-/ Wynne, against W. J. Whisenant; .and was founded on-the defendant’s promissory note for $866 66, dated October .16, 1854, and payable on the 1st day of May next after date, with interest from date. No pleas- appear in the record..

Tried before the Hon. Alex. McKiNStry. This action was brought by John W. Monette, against William McGill and Harvey Snow; but was allowed to abate as to Snow, who died before the trial.

Tried before the Hon. Nat, Cook. This action was brought by D. C. Fowler, against John B. Wood and Burrell Kimbrough; and was founded on the ■defendants’ promissory note for $452, dated the 16th… Held: that the defense made under the special plea above copied, constituted a “ set-off” within the meaning of the statute; and therefore overruled the defendants’ motion. The defendants excepted to this decision, and they now assign it as error’.

Porter KiNG. This action was brought by John M. Lambert, against A. T. Kannady; and was founded on the defendant’s promissory note, of which the following is a copy r “$1100.

Tried before the Hon. Nat. Cook. This action was brought by William Wood, against Stephen B. Barker and others, the sureties of said Barker; and was founded on‘an attachment bond, executed by the defendants, in a suit previously brought by said Barker against the plaintiff in this suit. The attachment bond was conditioned as the statute prescribes.

Tup bill in this case was hied by Mrs. Mahulda Burns, tbe wife of A. S. Burns, suing by her next friend, against Samuel P. Hudson and the said A. S. Burns ; and sought a recovery of certain slaves in the possession of Hudson, in which the complainant claimed a separate estate, with an account of their hire.

Cunningham',, deceased, on the petition of A. C. Bush and Mary, his., wife,, (formerly Mary Cunningham,) D. F. Shuford and Cyüthia, his wife, (formerly Cynthia Cunningham,) John B. Cunningham and Victoria Cunningham, for the recovery of a legacy, which they claimed under the second clause of the will of said John H. Cunningham, deceased, which, after making’several specific bequests to the said testator’s wife, was in the following words: “ The remaining portion of my…

.Appeal from the Chancery Court of Shelby. ’'Heard before the Hon. James B. Clark, 3?he material facts of this case, as stated in. the bill, are these: Benjamin 6r. Wilson, the complainant, was appointed by the -probate court of said county, in December, 1852, administrator of the estate of his father, Benjamin Wilson, deceased % of Which estate, Mrs. Nancy Randall, wbo was the sister of the pomplainani, (and who, with her husband, Benjamin -F. Randall, was made a defendant…

Tried before the Hon. JOHN Gtll Shorter. This action -was brought by the appellees, and was founded on the appellant’s guaranty of a promissory note, which was endorsed on the note, in these words: “I guaranty payment of the within,” (signed,) “ George Cowles.” The note was for $5Si 50. made by Eudler & Jlockwell, dated September 28, 1849, and payable eight months after date, to the order of the defendant, (not the plaintiffs, as stated in the former report, 31 Ala. 428,) at…

Ik the matter of the estate of William King, deceased,, on the petition of the appellants, who were the sureties of Solomon Spence, on his official bond as sheriff of Talladega county, to supersede and quash an execution, which had been issued against them, as such sureties, on a decree of said probate court against their principal, as administrator de lonis non of said King.

Abpeal from the Circuit 'Court 'of Bickens. Tried before the Hon.-A.-A. Coleman^ The record'in'this-case'shows the following facts: On the 15th September, 1859, Martin ■& Lowe commenced an action-, -by summons and complaint, against Simpson H. Williams, aud at the sateie time, sued mut a garnishment, under the act of February 5th, 1858, (Session Acts 1857-8, p: 36,) against John T. Bonner, C. B. 'Sanders, and C. L. 'Stone.

Heard-before the Hon. Wade Keyes. The original bill in this case was filed on the 19th March,., 1853, by James Hinter, as the administrator of Samuel B. Marsh,deceased, against George Elsworth; andanamendedl bill was afterwards filed,- to which F. G. Kimball; as the-administrator of Mrs. Julia D. Marsh, who was the widow of said Samuel B. Marsh, was made a defendant.

The record does not show who was the presiding judge. This case originated in a justice's court, where several actions were commenced in the name of R. T. Sauls, for fbe use of Thomas Wickham, against Carmichael & Allen, surviving partners, &c. The several cases having been consolidated in tire circuit court, the defendants there moved, at tire November term, 1858, to dismiss the suit for wairt of security for the costs ,- and the court thereupon, ordered, “that the…

'ML J. Saeeold, The bill in this case was filled by Thomas E, Bishop, against Mrs. Susannah Snell and A. J. Biggers; and William Snell, the husband of said Susannah, was afterwards made a parly defendant by consent, It alleged, that the complainant was-the owner of two promissory notes, made by Mrs. Snell, and payable.to one Jesse M. Rowe; that said notes were given in part payment of the purchase-money of a tract Of land, sold by said Rowe to Mrs. Snell, and were obtained…

.'Appeal from-the Circuit Court of Choctaw, Tried before the Hon. C, W. Rapier. This action was brought by Mrs. Damarius Canty, - against John Sanderford, to recover a horse, which the plaintiff claimed as a part of her separate estate under the laws of this State, and to which the defendant asserted title as a derivative purchaser from F. M. Canty, the plaintiff’s late husband.

.Heard before the Hon. James B. Clabk. 'The bill in this case was filed, on the 11th February, 1858, by John A. J. Phillips, and Mary E. his wife, (formerly Mary E. Drake,) against' William Threadgill, and Martha A., his wife, (formerly Martha A. Drake;) and sought a recovery, partition, and distribution of certain slaves, which were alleged to be in the possession of the ■defendants at the commencement of the suit.

<p>Appeal froiil tile Circuit Court of Shelby'.</p> <p>Tbe record dobs not show the name of the presiding-, judge.</p>

The record does not show the name of the presiding judge. This action was brought by Josiah Dunn and others, against Bennett Davis and others; and was founded on a penal bond, dated the 19th September, 1849, and conditioned as follows: “Whereas the above bound Bennett Dav,is has this day filed in the chancery court for said county his original bill against the said Dunn, Parker and wife, and Beavers, and, amongst other things, prayed an inj unction, in the nature of an…

Tried before the Hon. S. D-.-Hale.- This action was brought by Lewis Schuessler, against the administrator of Thomas Watson, deceased, and was founded on a promissory note, of which the following is a copy: “PANAMA, March 16, 1S50. “ One day after date, I promise to pay to Lewis Schuess-ler one hundred and fifty dollars, ih work or cash, after my arrival in San Francisco. his íkoftAs X Watson.’’ “ Witness : W. C-.-Houghton.” mark.

Feoji the Circuit Court of Baldwin. Tried before the Hon. 0. W.'Rapier. The prisoner in this case, a slave, was indicted for the murder of another slave, and pleaded not guilty to the indictment. “ On the trial,” as the bill of exceptions states, “during the opening examination of the witnesses for the prosecution, the State proposed to prove the good character of the deceased, as a peaceable, well-behaved negro.

From the Circuit Court of Mobile, ,on change of venue ■from Baldwin. Tried before the 'Hon. C. W. Rapier.- The prisoner was indicted, jointly with another slave* in the circuit court of Baldwin, for the murder of one Rouis Boudet, (or Boredet,.as the count decided,-on inspection, it might be,) a white man. The venue having been ..changed to Mobile,-the prisoner was ¡there tried alone, at the December term, I860..

FROM tbe Circuit Court of Dallas, on change of venue from Wilcox. Tried before the Hon. Porter King. The indictment in this case was found by tbe grand jury of Wilcox county, and originally contained three counts : the first charging tbe prisoner, who was a slave ■with tbe murder of.

ÍF®om the Cireuit Cburt of Baldwin. Tried before the Hon. C. W. RapieR. This case originated in Mobile county, and was removed to Baldwin county on the application of the defendant.

Feom the Circuit Court of. Pickens. Tried before the Hon. A. A. ColemaN.

FROM tbe'Circuit Court of-Terry» Tried before the Hon. Poster King. .In : fcbis case, Luther Merkle and William H. Redding were jointly indicted -for selling liquor to a student of .Howard college,;in tbe town of Marion, and were jointly tried.

FROM the Circuit '’Court of' Montgomery.-- Tried before the-Horn-JáMes B. -Martin. • Tiie prisoner ill this'case, Patrick Murphy, was indicted^ for the murder of Hugh Keys, and pleaded not guilty to-the indictment. “ On the trial,?-' as the bill of exceptions* states, “the court asked juror,' regularly summoned, whether be- had a fixed opinion -against capital or penitentiary punishment.

¡From '-the City Court of Mobile. Tried before the Hon. Herry Chamberlain.

FROM the City Court of Mobile. Tried before the Hon. Ales. McKiystry. The indictment in this ease was in the form prescribed . by section 1059 of the Code. On the trial, as appears from , the bill of exceptions, the State proved, that the defendant . sold spirituous liquors, at the bar of the City Hotel in Mobile, within the time covered by the indictment.

Feom the Circuit Court of Dallas. Tried before the Hon. Porter King. . The indictment in this case contained two counts; the first charging the prisoner with larceny from “a dwelling-house and the second, with larceny from “ a shop.” The jury returned a general verdict of guilty, and the court thereupon sentenced the prisoner to confinement in the penitentiary for three years.

FROM the Circuit. .Court of Lowndes. Tried before the Hon. John K. Henry.

From the City Court of .Mobile. Tried before the Hon. Henry Chamberlain. The indictment in this case charged, that the defendant did keep a restaurant, or eating-house, without a license, .and contrary to lawl” The defendant moved to quash the indictment, and also demurred to it, on the ground that it did not sufficiently describe the offense. The court refused to quash,.and overruled the demurrer; and the defendant reserved exceptions to its decisions.

Feom the Circuit CourtAffiDále. Tried before the Horn JohNGécl 'Shorter.- The indictment in this case changed, • “that Redding Ward, a white person, did play at cards with a slaveiiamed Cain, the property of Dempsey Dowling.- “Oil the’trial,” as the bill of exceptions states, “the State introduced a witness, who testified, in substance, that, within twelve months next before the finding of the indictment in this case, he went to a mill in said county, belonging to Mr.…

Feom tbe Circuit Court of Jefferson, on change of venue from Blount- Tried before tbe Hon. Wm. S. Mudd.

FROM the City Court' of Mobile. Tried before the Hon. Alex. McKjNSTry. The indictment in this case was in these words : “ The grand jury of said county charge, that, before the finding of this indictment, John McGuire forged'an instrument of writing, purporting to be an order, drawn by Sister Adeline, on George Battiste, for nine dollars, with intent to defraud.

Tried before the Hon... John Gill Shorter. The appellee in this case, who was the sheriff of Lawrence county, applied to .the circuit court for & mandamus to 'William J. Greene, the comptroller of publrc.accounts, to compel that officer to draw his warrant on the State treasurer, in favor of the petitioner, for the amount claimed by-him as compensation for conveying a convict to .the penitentiary.

Heard before the Hon. James B. Clark. This is the same case-.which is reported in 28 Ala. 267, under the title of Hair, adm'r ébe., v. Avery,, et al. The original bill was filed in January, .1852,… Held: that the amendment ought not ,to have been allowed, as it made an entirely new case; and that the statute of limitations was a complete bar to-.the relief sought by the bill as amended. -He therefore -.dismissed,the. bill j and his decree is now assigned as error. 1.

Heard before the Hon. Wade Keyes. Tiie -material facts of this case, as alleged in the bill, may be 'thus stated: John Breedlove died in Montgomery comity, in 1838, having first-made and published his last will and testament, which was duly admitted to probate after bis death, and which contained the following provisions-: The first clause directed the payment of all his debts. ’The second clause was a devise and bequest to his wife, Mrs. Nancy Breedlove, of his entire…

Tried before the lion. William S. Mudd. '■This action was brought by James B. Smith and others, wlio were the, children, grandchildren, and great-grandchildren oí Sion Smith, deceased, against… Held: that the will of Sion Smith-, being -more than fifty years old, “was admissible-as an ancient ’paper,” although the probate was defective. In the case of Gray v. Gray, the following points were decided: 1’.

Tried before the Hon. Robert Dougherty. This action was brought by John M. C. Reed, against W. R. Martin, and was founded on the defendant’s promissory note for $58, dated the 14th January, 1856, and payable on the 14th January, 1857.

Hoard before the Hon. M. J. Saeeold. On the 7th July, .1858, Cox, Brainard & (Do., (a firm composed of Henry L. Jayne,'F. M..

Tried before the Hon. S. D. Hale. This action was brought by Joseph D. Hopper, as the administrator of Elisha Moseley, junior, deceased, against Peter B. Mastín. In the summons, the plaintiff was described as the administrator of Elisha Moseley, jr., deceased ; m the marginal statement of the parties’ names in the complaint, “as athn’r of Elisha Moseley, jr., deceased and in the body of the complaint, “as aclm’r of a,11 goods and chattels, rights and credits of Elisha…

ApBEal from the Circuit Court of Montgomery. 'Tried before the Horn John Gill Shoetee. This action WSs brought by the administrator of Stephen íTinnett, deceased, to recover certain moneys alleged to 'fitve: been'deposited with the defendant by said Plannett in Sis liie-ti'mfe ;'”and' Was commenced on the 5th March, 1857. The complaitfheontained a count on an open account, and another on'a -stated account.

Ai'ueal from the Chancery Court of Greene.. Heard before the Hon. Jas. B. Clare. Held: on tbe authority.of .Carroll and Wife v. Brumby, (13 Ala. 102,} that the trusts for .the benefit of. the slaves were void, and dismissed the bill, at the costs of tbe estate; and his decree .is now .assigned as error: The fourth ..clause of the testator’s will creates a valid trust, which the executor is bound to execute. — Ativood…

From the Circuit Court of Chambers. Tried before the Hon. Nat. Cook. IN this case, the appellant’s counsel made a motion to establish a bill of exceptions, whicb the circuit judge bad failed to sign within the time required by law; and submitted, with the motion, several affidavits as to the correctness of the bill tendered; while counter affidavits were submitted on the part of the appellees, denying its correctness.

. Tried before tbe Hon. Nat. -Cook. This action, was brought'by Elijah Williams,' against Samuel Ivey, to recover damages for an assault and battery, and for false imprisonment.' The original complaint con* tained two counts, which were identical with those in the-’ case of Reason Williams against Ivey, page 244. The ' circuit court sustained a demurrer to the complaint, for a '• misjoinder of counts ,* holding, that the first count was in - trespass, and the second in case.

Tried before the Hon.. Nat-. Cook, The original complaint in this case Was in these wolds : “Reason Williams \ vs. > The plaintiff claims of the defendant Samuel Ivey. ' twenty thousand dollars, as damages for an assault and battery committed by the defendant on the plaintiff, viz., on the 10th January, A. D. 1858. “Tbe plaintiff claims of the defendant twenty thousand dollars, as damages for maliciously, and without probable cause therefor, arresting and imprisoning him,…

Tried before the Hon. C. W. Rapier. This action was brought by the appellee, to recover oí' the appellants $82 32, “ for freight, primage and average, due from said defendants to plaintiff, upon, for, and in respect of the conveyance of divers goods, merchandize and chattels, on board the plaintiff’s schooner B. W. Tull, from the port of Philadelphia to the port of Mobile j” and the complaint also contained a count for work and labor, and a count on an account stated.

. Tried before the Hon. Nat. Cook. This action was brought- by Thoinas-Mahon®,, against Augustas McGehee,-to recover several slaves,-together with damages for their detention.. If appeared from.- the evidence on the trial, that the slaves hadrance belonged to the plaintiff, and had been either given or loaned by him to bis daughter, who married the. defendant in.

<p>[STATUTORY SUIT FOlt FREEDOM.]</p> <p>1. Validity of bequest of freedom to slave. —In this State, a direct bequest of freedom to slaves is void, unless their emancipation is author.zed by some special legislativo provision; and where the testator is authorized, by a special statute, to emancipate his slaves at his discretion, but is required, as a condition precedent, previously to convoy a certain quantity of land to the judge of the county court, in trust, for their use, as a security that they shall not become a public charge, a devise of the land to the slavos themselves, in a will which is not sufficiently attested to pass real estate, is not a substantial compliance with the statute, and the bequest aud devise are both void.</p>

Isr the matter of -the estate of Bailey C. Newman, deceased, on final settlement of the accounts of Henry L. Wilkinson, administrator de bonis non, to which he was cited by William H. Hunter, his successor in the administration. Wilkinson appeared, in answer to the citation, alleged that no assets belonging to the estate had come to his hands, and moved t© be discharged.

Tried before^ the Hon. Robert Dougherty. „ This action was brought by Richard Falkner, against William Wright, and was commenced on the 12th August, 1859.

. Tried before tbe Hon. S. D. Hale. This action was brought by William C. Roney, (and was revived in the name of his administrator,) against Joseph S. Winter ;. -and was founded on a promissory note, of which the following is a copy : “$390. Montgomery, Ala., Jan. 1‘, 18551. “Twelve months after, date, we promise to pay Wm. C. Roney, or bearer, three-hundred and ninety dollars, for the ■hire of Jim and Jerry for. the present year.

. Tried before the Hon, Robeet Dougiieett.. This action was brought by S. D'.

Tried before the Hon. C. W. Rapier. This action was brought by Burwell T. Connor, an infant, suing by his next friend, against the administrator of Ignatius A. Trawick, deceased, to recover a slave named Toby, which the plaintiff claimed under an alleged gift from his grandfather, Burwell Trawick, deceased, as evidenced by an instrument of writing in the following words ; “Know all men, by these presents, that I, Burwell Trawick, of the county of Attala, State of…

. Tried before the Hon. C. W. EapieR. Tms-action was brought by James Pilkington, agaihst Garrett M. Longmire and Richard F. Longmire, to recover damages for the conversion of a horse. In the original complaint, the plaintiff sued in his own right, and alleged that the horse was his property..

.AppEAL'-from the Circuit Court of Wilcox. Tried before the Hod. Nat.

Tried before th.e, Hon. Alex. McKiNSTky. This action was brought by C. B. Iiopkinson, against James T. Shelton, to «recover damages for the conversion of certain cattle, which the defendant, as sheriff of said county, had seized and sold under.-execution against one F. B. Sheppard.

IN the matter of the estate of Benjamin Y. Beene, deceased, which was declared insolvent on. the 12th April, 1858 ; and against which the appellees filed a claim, on the-22d November, 1858. Ths administrator filed a written objection to the allowance of this claim, “on the ground that the same had not been verified in the time and manner required by law;” and an issue was formed on this objection..

of Dallas. Tried before the -Hon. Nat. Cook. The appellant in this case, having recovered judgment against Jones & Co., (a mercantileffirm in Selma, composed of Abner Jones and William Ickes,) sued out jfrocess of garnishment on it, and summoned John T. Morgan, the administrator of William M. Murphy, deceased, as the debtor of said Jones & Co., or either of them.

Tried before the Hon. R®bert Dougherty. Ti-iis action was brought by William L. Tillman, against Dickinson Chadwick, to recover damages for injuries inflicted on a slave. At the time of the commission of the alleged trespass, the slave was in the defendant’s possession, under a contract of hiring.

Tried before the Hon. Robert Dougherty. This action was brought by the appellee, a corporation chartered by the legislature of this State, against William Cox, and was founded on a promissory note for $1448 97, executed by one A. D. Cleckley and the defendant, dated the 15th April, 1850, and payable on the 1st January, 1851, with interest from the 1st January, 1850, to William M. Lampkin or bearer.

-Heard before the Hon. James B. Clark. ’’The bill in this-case was filed by Amos Moore,'against William Gr. Held: that the entire fund, both principal and interest, or as much thereof as was necessary, was liable to complainant’s debt. He therefore overruled the demurrer, and rendered a decree for the complainant.;, -.and his, decree is-, now assigned as error. . 1.

Tried before the Hon. Alex. McKixstry. This action was brought by James Kelly, against John T. Webb, to recover a slave named Wash, under the following circumstances : The slave belonged to the plaintiff, and was employed by him as a cab-driver in tbe city of Mobile, but was permitted to retain for himself about one-half of his wages.

Tried before the Hon. A. A. Coleman. This action was brought by J. W. Hampton, as the administrator ofMsrthi Miller, deceased,,against Lucius C. Miller and Matthew R. Miller, to recover several slaves j and was commenced on the 12th March, 1859-. The writ was exécuted by the sheriff, on the day of its date, on both of the defendants, who, on the same day, executed a delivery bond for the forthcoming of the slaves, which was approved by the sheriff on the 14th.

C. W. Bapier. This action .was brought by William A. Baine, against John P. Cook, to recover damages for the tortious seizure and sale of a horse and wa»' 'commenced on the 25th March, 1S59. No pleas appear in the record.

Tried before, the Hon. Nat. Cook. This action. was. brought by Mrs. Matilda Bell, against William N. Boothe, tenant in possession, to recover the possession of two town-lots in Cahaba, with damages for their detention ; and Stephen B. Barker, the landlord of Boothe, was made a party on his own motion.

' APPLICATION for a mandamus, or other remedial writ, to tbe probate court of.Wilcox, to compel that court to grant to tbe petitioner. James. P. .Maxwell,- original letters of administration on the estate of his father, James.Maxwell, deceased, who died some .tima'in. -the year 1845, seized and possessed of real and personal, property in the county of Wilcox.

Tried before the Hon. Nat. Cook. This'action was brought 'hf F. K. Beck, as the executor of D. W. Sterrett, deceased., against Henry Kaster, to recover damages for the tortious taking of certain personal chattels, consisting principally of articles of household furniture.

Tried before the Hon. Nat. Cook. This action was brought by Ransom C. Ruff, against Andrew J. Brooks, to recover damages for the conversion of a horse; and was commenced on the 2d September, 1858. The plaintiff claimed the horse under a mortgage from one S. P. Brownlie, and the defendant held him under a .purchase from said Brownlie.

Tried before-the Hon. Jxo. Gill :&iorteR. The complaint in this case was in the following words : “‘Mary S. Salisbury. \ The plaintiff claims of the defend-ió. > ant fifty-six 95-100 dollars, due by Ezekiel Alexander.account for-goods and merchandize furnished by plaintiff to defendant, at his instance and. request; which .'account was payable on the 1st January, 1854, with interést thereon.

Appeal ,1'rom tbe Circuit Court of Marengo. Tried beiore the,Hon. Robert Dougherty. This action was'-.brought by Maria F. Jones, against David Espy, to recover damages for a breach of promise of marriage.

Tried, before tbe Hon. Bobert Dougherty. This action was -brought by William Towni^ as the administrator of the estate of Silas Strickland, deceased, against John. Walker a,ud Joshua Strickland ; was founded on tbe defendants’ promissory note for $1,000, dated the goth December, 1843, and. payable one day after date, to said Towns, administrator, &c, 5 and was commenced on the 10th day of March, 1852.

Tried before tbe Hon. John K. Eenby. The appellant in this case recovered a judgment against 'the appellees, in the circuit court of Montgomery, on the ■9th June, 18S9, for $8,000 damages, besides costs. The defendants removed the case, by appeal, to the supreme court, and gave bond with surety to supersede the judgment.

Appeal -from the Chancery Court of Fayette. Heard before the-Hon. James B. Clask.

before, the Hon. Nat, Cook, This action was brought by Stephen B. Barker, against • Benjamin R. Thomas, to recover damages for the breach of' a.-special contract, by which the plaintiff sold a negro girl to the defendant at the price of $1100, and the latter agreed' to pay plaintiff, in addition to the $1100, “one-half of what he might get-for said girl on a re-sale, over and above $1100;” the alleged breach being, that • tbe defendant resold the girl for $1400, and refused…

'Appeal from the Chancery Court of Chambers. 'Heard before the Hon. James B. Clare.

IN the matter of'the estáte of William'Forrester, deceased, on the petifcibn of George Forrester for tile revocation of the letters 'of administration' previously granted to William Forrester and David Spradling.

Cook, The appellee in this case obtained a judgment against William Leonards at the spring term, 1857, of said circuit • iiourt | and the appellant was afterwards summoned, by process of garnishment, as the debtor of said Leonard, The ..record contains, 1st, the affidavit of the plaintiff’s attorney, -on which the garnishment .was issued $ 2d, -.the writ of garnishment -, 3d, a minute-entry reciting the .garnishee’s appearance and answer j and, 4th, the judgment against the…

Tried before the Hon^C. W. Rapier. This action was brought., by William M. Stallworth, against Holden Preslar, to recover one half of the amount which the plaintiff had paid,, as the surety of Thomas R. Watts, on a judgment which Halsey, Utter & Co. had recovered against Mm and said Watts jointly; and was commenced on the 30th June, 1856.

<p>-[ACTION ON PROMISSORY NOTE,.BY ENDORSEE AGAINST ENDORSER.]</p> <p>1. Waiver J>y endorser of demand andnotiee.- — The words, “I waive protest on the within note,” written by an endorser, on the last day of grace, ‘ on the hack of a promissory note payable in bauk, are -a waiver- of demand and notice, and fix his liability.</p>

<p>[detinue jtor slaves.]</p> <p>1. jEstoppel bg^firformanee of award — After an award has.been ratiñeóf and fully executed, tlie xiartios are estopped, from asserting tliatij was not authorizethby the submission.</p>

.. Tried before the Hon. Pouter King. - This action was brought'by Mrs. Laura Singleton,against Gains B. Murphree, to recover damages for the conversion of a promissory note for $ 240, made ■ by Rush Elmore, dated the 8th November, 1861, and-payable, two years after date, to Martha Sims or order.

The record does not show the name of the presiding judge. The transcript in 'this case contains only ‘the papers returned to the circuit court by the justice of the peace, before whom the proceedings originated, and the judgment of the circuit court.

■Appeal from the Chancery Court of Macon. Heard before the Hon. James B. Claps. The bill in this case was filed by Mrs. Mary S. Wright .and her husband, Joseph J. Wright, against John Wright; and sought an abatement of the purchase-money of a tract of land sold by the defendant to Mrs. Mary Wright — 1st, on account of the defendant’s fraudulent misrepresentations as to the location of the southern boundary-line ; and, 2d, ; the note.

'Appeal from the Circuit Court of Jefferson. Tried before the Hen. -Wi. S. Mudd. This action was commenced -in a justice’s court, and was founded on certain written articles of agreement, signed by tlie defendant and several other persons, in the following words: “ Articles of agreement, between the undersigned subscribers,- of the one part, and John II.

<p>Appeal from the Chancery Court of Perry,</p> <p>Heard before the Hon. Jakes B. Clakk.</p>

Tried before the Hon. Nat. Cook. This action was brought by 'the appellant, to recover damages for killing a dog.

Tried before the Hon,-John E.-Mooee This action was brought by'W. L.-Lanier, as the administrator of J. J. McMahon, deceased, against J. C. Jarman and others ; and was founded on a bill of exchange, wliich was drawn by said Jarman on said McMahon, endorsed by the' other defendants, and accepted and paid by said McMahon.

Tried before the lion. Nat. Cook. This action was brought by Shadrach McMichael, against Samuel Adams, to recover the possession of several slaves, which the defendant held and claimed as the I administrator of one John T. Henderson, deceased; and was commenced in March, 1860, after the decision of -this court had been made in the case ‘-of Henderson v. Adams, (35 Ala. 723,) in which 'the title .to the same slaves was involved.

ApíbaB from the Circuit Court of Macon. Tried 'before the Hon. Rojbekt DouaiiBETY. 'This action was brought by A. G. Bragg & Co., against William R. Cunningham ; and was founded on a promissory note -for '$203 25, executed by Cunningham & Cole, dated the 8th May, 1856, and payable five months after date, to the order >of plaintiffs.

■Tried before the lion. JoiiN Gill Shorter. This action was brought by Bobert Thompson, against-'William M. Bell, to recover the balance due on a promissory note, dated .the. 27th September, 18-54, and payable on the -1st July, 1866.

Tried before the Hon. Nat. Cook. The appellant in this-case made a motion, at the spring term, I860, of said circuit court, to have satisfaction entered, nimepro tunc, as of the spring term, 1854, of a judgment which J. & C. B. Sanford had previously recovered against him.

Tried before the Hon. Alex. McKiNStey- This was -a summary proceeding, by notice and motion, at the suit of-Hazael Warfield, against George N. Stewart, as the surety on a bail-bond for one James Hagan,-who had been arrested on-a ca sa. -sued out'by said Warfield, The judgment is as follows : “ This day came the plaintiff, by his attorneys, and the defendant in his-own proper person ;: and it appearing to the court, that one James Hagan was arrested on the :15th March, 1858,…

IN the matter of the final -settlement of -the estate of Jacob Merrill, deceased, on the trial of an issue between Josiah Rhodes and wife, (keen Franklin and wife, Samuel T, Smith and wife, Robert Davis and wife, and Rebecca Merrill, as plaintiffs, and Creen B. Merrill, Henry M. Merrill, Thomas L. Merrill, and William R. Merrill, as defendants, respecting the nature of certain gifts of property, made by the decedent in his life-time to each of said defendants, which the…

M. J. Saffold. The bill in this case was filed, on the Sth January, 1856, by Nancy Bradford, against Ely Bradley y, and sought, principally, the recovery of certain slaves, with an account of their hires while in the defendant’s possession.

From tbe Circuit Court of Shelby.. Tried before the Horn Wm. S. Mudd. - The indictment in this case contained two counts ; the-first charging, that the defendant, Martin Johnson-, “willfully or maliciously injured- a-mule-of some value, belonging to William Richards and the second, that he “willfully or maliciously disfigured a mule,” &c. No objection was made to the indictment; and the only-plea was* nok .guilty.

Feobi the Circuit Court of Montgomery- Tried before the Hon. S. D. Hale. The indictment in this case was founded upon the act of February 6, 1858, entitled “ An act to prevent nuisances and illegal trafficking with slaves,” which is in the following words: “ SectioN 1.

Flom the Circuit Court of Covington. Tried before tbe Hon. Jno.

From the Circuit', Court of- Choctaw. Tried before tbe. Hon. A. A. ColemaN. . ÍN this case, George Frank Smith, Marcellus A. Coleman, M. Van-Camp and Charles.

AkplicatioN by ffohn Kelly and .Richard Dodge, alias Richard Norton, for the writ of habeas corpus, or other remedial process, to-obtain their'release from imprisonment in the county jail of-Mobile.

of. Pickens. Tried before tbe Hon. A. A... ColejiáN. This action was brought by the “Most Worshipful-Grand Lodge of Ancient Free-masons of Alabama and its Masonic Jurisdiction,” against James T. Burdine. The complaint contained the common =count for money had and received, and another on an. account.stated. The pleas were — 1st, the general issue ; -2d, payment; .and, ,3d, that-the plaintiff, never was a corporation .authorized to sue on said causes of action.

. Heard before the Hon. Wade Heyes. The bill in this case was filed'' by Mrs. -Agnes McAllister,' the widow of William McAllister,, deceased, against the-executor of said decedent, to recover the The .executor-filed an answer to-, the bill? denying -that-the plantation was appurtenant to the decedent’s residence, or connected therewith, or that the complainant was entitled to any portion of the rents; but admitting all tbe other, allegations of the bill.

-Appeal from the Circuit Court oftDallas. .Tried before the Hod. Nat. Cook.

Tried before tbe Hon. Jso. Gill Siiortee. This was a summary proceeding., instituted in the name of W. J. Greene, -the comptroller of public accounts, fat the use of the State, against John G. Burgess, tax-collector of Coosa county, for-the year lS45,--and James-L.- Burgess', A. C. Mahan, Hamilton Ware, and R-.- L. Lauderdale, as the sureties on his official bond; -and was ’-commenced on the IStb May, 1857.

Application by William IL Northington, as the executor of John D. Fralick, deceased, for a mandamus, proce-dendo, or other appropriate writ, process, or order, to be directed to the circuit court of Autauga, to compel that court to allow the petitioner to proceed in a certain cause, therein pending, in which the petitioner, as executor of said Fralick, was plaintiff, and one John E. Williams was defendant.

.Appeal from the Circuit Court of Madison. .Tried.before.the Hon. S. D. Hale. This case was before this court, at its January term, 1860, on appeal from the judgment of the circuit court sustaining a demurrer to the complaint; and the judgment of the circuit court was Jthen reversed, and the cause remanded. — .See 35 Ala. 602.

Tried before tbe Hon. Nat. Cook, Ik this' case, Allen Matthews, suing for the use of Baker, Fry & Co,, recovered a judgment against Stephen M, In-gersoll, iii the circuit court of Russell, ■■on the 14th October, 1839. Executions were issued on this judgment op. the 29th November, 1839, and on the 15th January, 1841; and on the 2títh Februaíy, 1857, a scire faeias '•to revive it was sued out in the name of said Matthews.

Tried before the Hon. Alex. McKiNSTRY. 'This action was brought by F. F. Foscue, against the i -appellants, as common carriers, to recover damages for the •loss of two bales-- of cotton, which were shipped by the plaintiff on board the defendants’'steamboat Elisa- Battle, consigned to Goode & Ulriek at Mobile, and which were never delivered. -'.The case was before this court at its January term, 1859, «when the judgment of the city court was reversed, and the-cause remanded.…

. Tried before the Hon. Nat. Cook. Tins action was brought - by Mrs. Eliza E. Flanagan, against-.I),. A. W. Patterson, and was commenced on the 21st September, 1858.

• Tried before the Hon. S. D. Hale. This action was brought by M. J. Turnley, as the administrator of Washington Manly, deceased, to… Held: claimed and controlled them as his own, until the Gth.December, 1855, and then*.sold them to the defendants,, for a fair and füll price, believing; that he was selling a perfect title;-and that the defendants purchased in good faith, believing that they were obtaining a good title, and heldiand claimed the slaves openly as their own,…

IN the matter of the estate ©f Richard Greene, deceased* on final settlement of the accounts of Thomas J. Woolf, the executor, and distribution of that part of the estate which was left undisposed of by the decedent’s will. The decedent died in August, 1856, leaving a widow and six children-.

John K. Henky. This action was brought. b,y. the 'administrator of Lucy Bell, deceased, against William C. Bell, to recover certain… Held: that an administrator, who makes an illegal and void sale of . the property of the estate, is estopped by his own act from suing for the property ; and that the statute of limitations does not begin to run in fa~ ■vor of the purchaser, as against the estate, until the appointment of a succeeding administrator ; in other words, that…

Sumter. IN tlic matter of tlfe. estate of George L. Watt, deceased, on final settlement.- of the -accounts and vouchers of Joel Watt, the administrator. . The citation was issued on the 12tli March, 1860.

the Circuit Court of. Mhcon, Tried before tbe Hon;. Robert Dougherty. . This action was brought;by tbe appellées, suing as late* partners, and was founded ornan-.open account for goods, wares and merchandize, sold and. delivered to tbe defendant during the years. 1853 and 1854. The defendant pleaded, “ that he is not indebted to the said firm of White & Johnson, as the plaintiffs have above complained,” &c.; and issue was joined on that plea.

Tried before the Hon. WA- S. Mudil This action was brought' by Noah, Lawrence, agganst Horace Ware was founded on- the defendant’s promissory note for $87 87, dated 25th May, 1854] and payable on ¡the 1st January,, 1S55, to, Matthew Lqe or order; and was commenced on. the 3d August, 18-58. The defendant pleaded a former judgment on the note, in his favor; and issue was joined on that plea.

ATPEAL.from-,th‘e Chancery Court m>£,.Bussell. Heard before t[ie,Hon.. James B., Clark. Tf-iE bill in this..;case was filedby’,-Charlas T. Pollard, Samuel Gr. Jones, and Wm.

Tried before tbe Hon. Nat. Cook. The complaint in this case was in tbe following words’; “ George W. Owsley ^ The .plaintiff claims of the vs. defendants the sum of two Montgomery & West Point T thousand dollars, as damages Railroad Company. J for Maliciously and without probable cause suing out a warrant, commonly called a peace-warrant, against the plaintiff, on the 21st January, A. D. 1857.

Heard before tbe Hon. James B. Clark. The original bill in this case was filed, on the 20th March, 1848, by Joseph IL Bondnrant, against the personal representative and heirs-at-law of Charles Sibley, deceased ; and sought to redeem certain lands, which had been sold under execution against said Bondurant, and which were purchased at the sale by said Sibley.

James B.-Clabk.; The bill in..,this case-was filed, on the 30th September, 3.859, by James K. McCollum,:,.against John W. Prewitt; and sought to enjoin a judgment at law, which said Prewitt bad recovered against said McCollum and others.

Tried.before the Hon. Alex. McKiNSteyv. This action was brought by E. Dohlorrdb &''Co.-, against the appellants-, to i-ecoverthe sum of $1587 60, the- price of certain goods, wares and’merchandize sold and delivered.

'Appeal from the Circuit Court of Randolph.. Tried before the Hon. Robert Dougherty. . The agreed facts of this ease are these: On the 26th January, 1858, Stephen NIC,Herrin -borrowed $1260 from-F. W. Buekelew, and, to secure the repayment thereof,, executed to said Buekelew twenty-eight promissory notes, for $45 each, all dated on said 26th,'.

-., Tried before tbe Hon. C. W. Bapiek. The complaint in this case was iñ-the following .-words A. R. Davis, adm’r of tbe estate of Wm.

Heard before tbe Hon. WadS’-Ejeves. The bill in this --case was filed;' on -the 10th August, 1857, by'Eleazer Galloway, against William Parish and Roger Parish ; and sought ' a recovery of certain slaves, With an account of their hire, and the cancellation of Amy Parish, William and Roger Parish, aiid the complainant’s wife, were the children of Edward Parish, deceased, who died in South Carolina, where he then resided, in 1822.

• Tried before tlie Hon.-Robert Dougherty;- This action was brought by James Heath,'agairi'st Sdm-uel Devaitghn;-. George W. Devaughn, Joshua Bussey, and Washington-Bussey, toffecovOr damages for a trespass on the plaintiff’s lands.

Heard before the Hon. James B.. Clark. The bill in this case was filed, on the 12th 'February, 1857, by the children and heirs-at-law of John F. -Martin, deceased, against.

Appbau from, .the Chancery Court of Macon. Heard before the Hon. James B. Olauic.

un. Tried before the Hon. S. D. Hale. The original action in-'this case was brought by James A. McCampbell, against J. L„ Havis, and was founded on -, the defendantfopromissory note for $346 37,: dated the 27th April, 185$,'>apd payable onetday after date. The defend- . ant pleaded not guilty, want of consideration,-'failure of ■ consideration, fraud,in procuring the execution of the note, and set-off.

..at .Claiborne, sitting as Probate Judge for Monroe comity.

<p>Appeal from the Circuit Court of Macons</p> <p>Tried before the Hon. Robert Dougherty.</p> <p>This action was brought by'Géorge Smith, against-tbs personal representative of Thomas-J." Bedell, deceased; was-founded -on the decedent’s penal-bond, dated the 11th April, 1838, and conditioned that he should, on or before the 25th December, 1839, make to the said George Sm-itb good and sufficient titles” to a certain tract of land, situated in Wilkes county, Georgia, containing three hundred and twenty acresy and ‘described in the bond as “ tire east half of section number one, township nineteen, and range twenty-five”; and was commenced on the 15th September,. 1857. The complaint set out’the bond," and alleged asa breach of the condition, that the said decedent in his lifetime, and the defendant as his administrator, had each been requested to make titles to the said tract of .land, according to the conditiort of said bond, and had failed and--refused so to do ; aud.that neither the decedent in his lifetime, nor the defendant as his administrator, had ever had a;good title to the said--tract -of.--.land. The defendant-.demurred' to each breach assigned in the complaint, because there was no averment of the tender of a deed, and because there was no averment that the plaintiff had been evicted from the land. The court overruled the demurrer, and the defendant then pleaded the statutes-of limitation of ten and sixteen years. There 'Was also an agreement, “ that any matter of defense might be given in evidence, as if legally and .properly, pleaded* and that all proper and legal replications should-be-considered as filed.”</p> <p>On the trial, as the bill-of .exceptions states,-the plaintiff read in evidence the bond on which ■ the suit was founded, and proved that the lands, on-the .25th -December, 1839, were worth $3,000 ; also, “that.-he called on the defendant’s intestate, at the maturity of said bond, and demanded of him a title to said land; that the said intestate replied, that lie did not have a title, and.,could not then make one”; also, ‘¡that he again called on said intestate, in 1841, or 1842, and demanded a title to ¡said lands; that said intestate replied to this demand as before, and asked for further time to comply with his .bond”.; “that he again called on the intestate, in 1852, and demanded• titles to said lands; that said intestate replied as before, and further said, that ..the man had run away .from -whom -he had purchased the land, and that he had been unable to find him ; that plaintiff thereupon told him., that; he had employed counsel- to bring suit on the bond.; to which said intestate replied, that the statute of limitations would soon give title to the land, and that, he .would get.a,.patent for the land, if plaintiff would not sue him on the bond,- and make him a title, and asked for further-time to*make-.title”; “that in June, 185?, plaintiff called on defendant, and demanded a title to said lands ; and that defendant replied, that she had no title to said lands, and did not know anything about the title, and had not been able to find out from wliom her intestate bad purchased said lands.” ‘ The defendant objected to the admission of the declarations' of herself and her intestate, as above ■ stated, and reserved exceptions to the overruling of her- several objections. .</p> <p>“The foregoing being-all the evidence introduced by the ■ plaintiff, the defendant then proved, that the plaintiff went' into the possession of said lahds, in 1839, and retained the * possession of one hundred and: sixty acres thereof for several years, and them sold the same to Miss Susannah, i Hugely, .who went into the possession thereof immediately!'-, after the sale, and has cultivated the :same, and remained' i in possession ever since, undisturbed; that the other half • of said'(land was •-purchased by plaintiff for his mother, who wont into the possession .thereof.in 1839,-and has, been in possession thereof ever since, cultivating: the same as her own. The.defendant offefed to prove, that, on the 12 th December, 1853, at the instance of-the plaintiff, said intestate-made a deed to Miss Hugely fofc one hundred and i sixty acres of said land, and- that ¡plaintiff received said- < deed as-a compliance, to that extent, with the obligation of . the-bdnd ; but, because the range named in said deed was,- , by mistake, different from that, ¡stated in the bond, tho • court excluded said deed from, .the jury., on the plaintiff V-objection; to which the defendant excepted. Ini connec- - tion With said deed, and. the acceptance of the same by the ■ plaintiff, the defendant offered to show, 'that the land de- - scribed in the bond was the land, intended to be conveyed "1 by said deed.;' but the court excluded tbis evidence also, . and ¡.the defendant; excepted. The defendant "¡offered to ■ prove* also,-the valué of the rent.of tine land so - possessed i by the plaintiff, since the plaintiff went into tho .possession * thereof; 'hut the court excluded this evidence ala®, and the ¡ defendant-exceptedid The defendant-also proved, that she • obtained letters of administration on ¿the estate^of her intestate, on the 16th October, 1856; and, immediately there— t after, made publication as the law directs.” The defendant ■ also read, in evidence two letters ; onev from the commis- - sioner of the general land-office at Washington, dated the ■ 28th December, .1857, which stated, that the land described ¡ in the bond was an Indian reservation, and was not subject ' to? entry as public land ; and tbe other from the plaintiff, , toUthe..defendant's -attorney, dated the 27th September, 2858, and stating, that plaintiff, had bought one-half the land for his another — that the title was “going” to his mother — that: the «suit was brought in his name, because-the bond was in bi-S name-^-and.that the.intestate had made a deed to Miss Hugely for-the other half of thedand. .</p> <p>“This being all the evidence, the court charged the juryy.v that, if they believed the evidence to be true, the plaintiff’ was entitled to recover vfche value of .the land on the 25tk'-.-December, 1839, with interest from that time to the pres- ■ ent”; also, “that the declarations of the defendant’s intes- •• fate, as proved,af they believed that they-were madeias-pipved, would prevent the statute of limitations from being a bar to this actionand that, “the suit having been com- - menced within eighteen months after the grant of letters of administration on the intestate’s ’estate, the jury had noth- • ing to do with the .plea of the statute of non-claim, .and 'i need not ascertain, whether the claim was presented to. the .• defendant before the commencement of the suit ” ; to each\> of« which charges the «defendant excepted. . •</p> <p>The rulings of the.court on»the pleadings and evidence,.-, and the charges to th-a. jury, as before stated;.are now .as- ■ signed as error. .</p> <p>1. Each breach assigned in the complaint. is demurrable, because there is no averment of the tender of, a deed, and na averment .of an eviction by title paramount. — Wade v. Killongh, 4 Stew: &'->P. 450 ; Johnson o. Cdlins, 17, Ala. 324, and authorities there cited; Banks-v.-.Whiteliecud, 7 Ala.*84.</p> <p>2. The statute of--.-limitations, was a complete bar, under the facts proved ; and.-neitber the declarations of the intestate, nor those of the ^defendant,, could, prevent the statute from funning. — Crawford v. Childers, 1-.Ala. .482; MeVay v.-Wheelev, Q-Porter, 205 ; Baffle,,v. Phillips, 3L Ala. 573; lit Wheaton, 309 ; 3 Md. Ch. 398/;., 16 Geo. INC; 11 Ired. 427 ; Nugell on Li in; 247, § 28.</p> <p>3...¿The .deed to Hugely,_ for a part .of the .land,, being, ex-ecutcd at the'request of the plaintiff,-and accepted by him, was a partial satisfaction-of the bond; at least,-it ought ■to have been allowed to go to -the. jury, that they might determine whether it-was so accepted. — Collins v. Johnson, 20 Ala. 435 ;■ Gibbs v. Jamison,-12 Ala. 820.</p> <p>4. The first charge to the, jury was erroneous for several -reasons. In the first place, it-was an invasion of the province of the., jury, because there was a conflict in the evidence. — Allman .¿a Gann, -29 Ala. -240 ; 'Freeman o. Scur-loclc, 27- Ala. 407. In-the next place, the plaintiff was not entitled to recover at .all, because he was not the party really interested ; having bought -one half of the land for his mother, and having sold the. other «half to Hugely. In ■the next place, if the plaintiff was entitled to recover at all, the charge asserted an erroneous--measure of .damages. Whitesides v. Jennings, 19- Ala.- 784.</p> <p>1. The .complaint alleges facts which dispense with- the necessity of averring an eviction and the tender of a deed. — Johnson v. Collins, 17 Ala. 318; Garnettv. Toe, 17 Ala.74,; Alieno. Greene, 19Ala.34.</p> <p>2. The statute of limitations prescribed by the Code, (§ 2476,) does not govern the case, because only four years intervened between the adoption of the Code and the commencement of .-the suit. — Henry v. Thorpe, 14 Ala. 103 ; Rawls v. Kennedy, 23 Ala. 420. The .act of 18Q2, (Clay’s Digest,.327,.§ 81) does not include penal bonds conditioned for afiy thing else than the payment of-money. — Williams v. Talbot, 16 Tex. 1; 7 Johns. Ch. 556; 1 Saunders, 38; 17 Johns. 165 ; 33 Penn. St. R. 435 ; 2 Martin’s La. (N. S.) 545 ; 4 Texas, 159; 16 Arkansas, 122; 21 Barbour, 351.</p> <p>3. If the statute of limitations be applicable to the case, the repeated promises of the intestate would.prevent its operation. — Evans v. Carey, 29 Ala. 99 ; 30-Vermont,-262.; 14 Geo. 661; 8 Rich.' (S. C.) Í13.</p> <p>4. The admissions of the defendant and her intestate, having-been acted upon by the plaintiff, were hot only- com-potent evidence, but might amount to an estoppel. — Garrett r. Garrett, 27 Ala. 651; G-icynn v. Hamilton, 29 Ala. 232.</p> <p>5. The deed to Hugely could have nothing to do with the case, because tbe-land conveyed by it was not the land mentioned in the bond ; and because, if the land had been the same, the grantor had no title to it.</p>

' In the matter of'-the estate of Benjamin Y. Beeüe, de-¡ ©eased, which was declared insolvent by said probate court, and against which I. B. & T. Stubbs filed as a claim, within the-time prescribed by law, a receipt signed by the intestate, -in the following words: “ Received for collec-ticn, of Valentine Kirkpatrick, a note drawn by J. Gibson, in favor of I. B. &'T. Stubbs, Dec. 1, 1853.” The accompanying affidavit of I. B. Stubbs, attached to the receipt, stated, that,…

Appeal The before the Hon. James 13. MautiN. Tfie: action was brought by John B. 'Wilson, against Hen; v J; Sawyer, to recover the sum of about $250, money reta o a! by the defendant as his commissions, as sheriff, on the :.:ue of property under an execution against the plaintiff; and. was commenced on the 13th August, 1860.

IN the matter of the petition of Mrs. Anna E. Smith, formerly tlie widow of Emanuel Johnson, deceased, for an assignment of her dower in the lands of her said deceased husband. The decedent died on the 14th February, 1856, and the petition was filed on the Oth April, 1859.

Tried before tlie Hon. S.- D. Hale. This action was brought by Jules Douglass, against the appellee, as a common carrier, to recover damages for the loss of tbe plaintiff’s baggage while traveling on tbe defendant’s railroad between Montgomery, Alabama, and Columbus, Georgia.

. Tried before the Hon. James B. Martes. . This action was brought by Wilson-. Strickland,, against Jesse R. Taylor $ and was founded on a promissory noto, oí which the following is a copy-: “ On or before the 1st of January, 18-58,: I, as trustee for Mary Ann Taylor and Eliza Ann Taylor, promise to pay Aaron Formey, or bearer, four hundred dollars, being balance of purchase-money for land near. Rock.

'.Appeal from tbe Chancery Court of Dallas. Heard before the Hon. James B. Clark. Held: that the legacy and devise to Richard Jones, under section 1605 of the Code, did not lapse by his death before the testator, and did not pass directly to his children, but vested in his administrator, to be administered and distributed by him under the'statute ¡regulating the distribution of intestates’ estates; and'this part of the…

'Appeal from the Circuit Court of Macon. '.Tried before the Hon. Nat. Cook. This action was brought by Allen C. McGehee, asrainstr James Rump, to-recover damages for a breach of warranty of the soundness ofia slave named Myra, alleged to have been sold by defendant to plaintiff on the 29th January,. 1,854. No pleas appear in the record.

Tried before the Hon. Robert Dougi-iertt.. This action was brought by William M. A. Mitchell, against Green L. Turner, Simon B. Smith, James T. Shackle-ford, William Paige, and Wyatt II. Whatley, as the sureties on the official bond of Hugh Lockett, deceased, late sheriff of said county.

S. D. Hale. This action was brought by -Moses McLemore, as trustee for Mrs. Matilda S. Pinkston, the wife of James K. Pinks-ton, and… Held: that the complainants were entitled.to relief, and ordered an account to be taken by the master, to-. ascertain the amount of the trust funds which had come to - the hands of each of the defendants, the amount due to-, each one of the complainants from McCall & Co., and their pro-rata dividend of the funds with which the defendants.…

. Tried before the Hon. Johjt Gill Shorter. The complaint in this case was in the following words : ■ “ James Heath \ The plaintiff claims of the de- ■ vs. > fendant ten thousand dollars as dam- ■ Samuel Devauglm. ) ages tor falsely and malicio usly charging him with the crime of trading with slaves, by speaking, of and concerning him, in the presence of divers persons, in substance as follows: ‘Have you not been trading with my negroes’?

‘ Application'for a mandamus’tb'tbe circuit*com't of Tus~ k aloosa, Horn Wm. S. Mudd presiding,'to compel that court to render judgment in-a certain cause'therein pending, wherein the North-east and South-west’-Alabama RailroáS Company was- plaintiff, 'and one Jobn'McCle’lland' was- defendant.

In the matter of tbe estate of James A. Anderson, de- • ceased, on final settlement of tbe accounts and vouchers óf John B. Thompson, the executor.

Heard beforedbe lion. James B. Clark. This complainant in this case, L. 0. Harrison, and P. ÍL McCrary, the defendant, formed a. mercantile partnership in October, 1851. 5 the business to be conducted in tlie town of Summerfield, in Dallas county, and to continue for the period of five years, unless sooner dissolved by agreement.

Iw the matter of the estate of Angus Cameron, deceased/’, opthe application of John Ward and--Christopher Ward J for the revocation of letters of- administration previously granted to Sarah Cameron and Richard T. Hudspeth, and the grant of letters-to themselves.,- Th.e refusal of theag-plication is assigned as error. ,

<p>ISAM' OF SLAVES BY BROBATE COURT FOR BARTITION.]</p> <p>3. When sale for partition may he decreed. — Under file act of February 5, 1856, (Session Acts 1855-6, p. 20,) an order for the sale of slaves, for partition among tlie several joint owners or 'tenants in common, should not be granted by the probate court, on the application of the guardian of infants, without proof that the sale would be to the interest of the infants; ,t>ut, when the applicatiomie 'made by adult part-owners, such proof is not- necessary, although some of the parties interested are infants.</p>

<p>[ACTION AGAINST RAILROAD COMPANY AS COMMON CARRIER.]</p> <p>1. ExaminaMonfef parties as witnesses, inXappéaV case from justice’s court. In appeal oases from, a., justice’s court, where the amount in eontro-'versy exceeds twenty .dollars, the statute authorizing either party to he a witness in his oiwn ■behali',. (Code, §.2773,) has no application to suits by or against corporations aggregate.</p>

tbe Circuit Court- of...Ciarle;. Tried before tbe Hon. JOHN K. Henry. This action was brought by E. P. Chapman, as tbe ad-.-ministrator of William P. Coate, deceased, against Burr J. Coate, to recover damages for the conversion of several slaves.

Tried before the Hon. S. D. Hale. This action was brought by A. S. Bibb, against the ap-ypellant, a corporation chartered by an act of the legislature • of this State, to recover the value of two horses, which ' were run over and killed by a train of cars belonging to the defendant; and was- commencéd-on the 5th of November, 1859.

Tried before .the. Hon. C. W.’ Tins action .was brought by the executrix of Thomas F. Hunt, deceased, against John Hall, Joseph Hall,-and Gerald-B. Hall | .was founded on the defendants’ promissory note, fo.r $2,000, dated Mobile, March 11th, 1S50, payable to John Hunt, or order, in' the city of-.New Orleans, with , interest from date, and assigned by the personal representative of said John Hu,nt to the plaintiff’s testator ; and was commenced on the 23d March, 1859.

Armal from the Circuit Court of Dallas. Tried before tbe Hon.- Porter KiNG.

Appeal'from the-Circuit Court of Jackson. The record does -not show the name of the presiding ¡.judge.. .This action .was brought by Matthew Sims, against L> ¿B. Evans, and was commenced in a justice’s court. After the removal of .the case to the circuit court, the plaintiff t there filed ..a complaint, in which he claimed forty-nine dollars, alleged to be due to him from the defendant, on an ..account, and for money paid, and money.had and received.

Tried before the -Hon. Robert Dougherty, ‘‘This action was’commenced in a justice’s court, on the 26th February, '1855* and was removed by the defendant into the- circuit--court, where, at the fall term, 1857, the plaintiffs' filé A a¡complaint, claiming the following--sums, alleged to be due by open account for goods sold and de~ livered, to-wit: '$13 05, due on the 25th December, 1851 %, $18- 62, due on the 25th December, 1852 ; and $18 38, due on the 25th December, 1853 ;…

Tried before the Hun.'-EoÉERT Dougherty. .The -defendant in. this case -was summoned “to answér the complaint of Joseph D. McCann, administrator of all ..and singular the..goods and chattels, - rights and credits, '-which were of Christopher P. McCann, deceased and the same words followed the plaintiff’s name in the margin of the complaint, though there was .no averment that he sued .as administrator, or that the recovery would enure to the - estate; the cause of action, as…

the Chancery Court of Pibe. Heard before the Hon.N. WV Cocke. The bill in this case was filed by Ephraim-. Saunders, . against Joseph E. Albritton, to enjoin a judgment at law which, said Albritton had recovered against him in the cir- . cuit court of Coffee. The action at law, in which the judgment was rendered, originated in a., justice’s court, where two suits were instituted by said Albritton, against Saunders and one Striplin, founded on. two promissory notes.