Volume 4 — Alabama Reports

This was a petition filed in the Chancery Court by the ap-pellee, against the appellants. The record discloses the following facts: At the February Term, 183S, of the County Court of Mobile, Denys Casey & Co. recovered a judgment against Charles Cul-lum for $4,702 44.

Wext of Error to the County Court of Mobile County. Action of assumpsit on a promissory note for eleven thousand eight hundred dollars, dated October 17, 1836, and payable three years after date to S. Andrews, or order, negotiable and payable at the Bank of Mobile, signed by the defendant and endorsed to the plaintiffs by S. Andrews. The defendant pleaded— 1. Non assumpsit. 2.

Writ of Error to the Circuit Court of Talladega. This was an action of definite' by' the' defedant in error against the plaintiff, for the recovery of a negro woman named Sally, and her three children. The cause was tried on the general issue.

<p>1. In Slander, the words charged to have been spoken, or at ¡east some of them, must be proved to have been spoken precisely as laid, and it will not be suffi. cient to prove the speaking of words of equivalent import.</p> <p>2. The charge in the declaration, that a woman was called “ a whore,” ia not es. tablished by proving that she was called “ a strumpet.”</p>

Wkit of Error to County Court of Tuscaloosa County. Assumpsit. The declaration contains a special count on the written contract hereafter set out, and the common counis. At the trial the plaintiff read in evidence an account in these words: “ Tusknloosa, February 24th, 1838. Mr. J. Langford, to Cummings & Cooper, Dr. To making frock coat $52 — which coat is to be delivered to said J. Langford, at Coffeeville.

The plaintiff in error filed his bill in the Court of Chancery holden at Mobile, setting forth that on the 18th March, 1837, at the request of Willis Lang, who was then a copartner in trade with Colin C. McRae, under the firm of McRae & Lang, he indorsed a promissory note,made by the concern,for twelve hundred and twenty-five dollars, which was duly discounted by the Bank of Mobile.

„ EnRoit to Talladega Circuit Court. This action was commenced by attachment, by the defendants against the plaintiff in error. The defendant pleaded in abatement of the service of the attachment, that it was levied on Sunday, without the oaths of two persons that the defendant intended to withdraw himself from tiie State under cover and protection of the first day of the week. To this plea the plaintiffs demurred, and the Court sustained the demurrer.

<p>3. Where the maker of a promissory note, not negotiable in its terms, transfers an account upon another person to the payee, who agrees to take it as a payment subject to the sole condition that he is able to make it available, and he then transfers the note to an assignee, who sues the maker, and after suit brought, the payee makes the account available to himself, this is no defence to the suit by the assignee, under the pleas of payment and set off.</p>

On the 2Sth February, 1837, the plaintiff filed a bill,in which it. is alledged that the plaintiff is the legal proprietor of a bill of exchange, drawn by Wm. E. Phillips, on the 3d February, 18.3,6, for the sum of twenty-one hundred dollars, on B. Mc-Kiernan, of New Orleans, in favor of Josiah W. Marshall, and indorsed by- the latter. This bill was regularly protested for non-acceptance and non-payment, and the parties duly notified thereof.

<p>1. The owner of a slave is under a moral and legal obligation to supply his necessary wants. While the slave remains under his protection, he is the judge of the extent of his wants, but cannot absolve himself from this obligation by voluntarily permitting the slave to bo absent from him, unless he provides some person to stand in the relation of Master to the slave.</p> <p>2. The hirer, where no agreement to the contrary is made, is responsible for medical services rendered to the slave during the period for which he ishired; but if such hirer should permit the slave to be absent from him, the owner would he responsible for necessary medical services as well as the hirer.</p>

Wmt of Error to tbe Circuit Court of Talladega county. Trial of the right of property levied on by virtue of au execution at the suit of Rippetoe against William T. Stubblefield, and claimed by Oden. At the trial of the suit, the slaves were shown to have been in the possession of Oden, under a sale from Stubblefield, at the time of the levy.

Writ of Error to the Circuit Court of Perry. This was an action of assumpsit, brought by the defendant in error to recover of the plaintiff seven instalments of five per cent, each, on five hundred dollars id stock subscribed for in the Rail Road of the Company.

Action for a breach of covenant by the defendant against the plaintiff in error.

Wkit of Error to the Court of Chancery for the fourth District of the Northern Division. The bill exhibits the- articles of partnership, containing the mutual stipulations of the several acts to be performed by the parties with respect to the business. The principal acts to be done by the complainant, were to supply a capital of one thousand dollars, the making of a tan yard, and the furnishing a hand to work in it.

Weit of error to the Circuit Court of Lowndes. This was an action of assumpsit on a promissory note made by the plaintiff in error, on the 11th November, 1837, for the payment, to the defendant, on the 1st of March, 1841, of the sum of three hundred and forty dollars. The cause was tried on the pleas of non assu?npsit, failure of consideration and fraud. On the trial the defendant below excepted to the ruling of the Court.

EekoR to the Circuit Court of Tuscaloosa. This was an action of assumpsit by the defendants in error as payees, against the plaintiff in error as drawer of a bill of exchange of the following tenor, for non acceptance: “Tuscaloosa, February \Zlh, 1840. $1,176.

<p>1. Where the plaintiffis twice nonsuited in the progress of the same suit, and the nonsuits are set aside by the Court, this does not affec.t his right to proceed to judgment. The act of 1807, [Digest 283, §135,] refers to nonsuits suffered in several actions for the same cause.</p>

Weit of Error to the Circuit Court of Coosa. This was a proceeding by notice and suggestion under the statute against the sheriff of Coosa and his sureties, alledging that by due diligence the- sheriff could have made the amount of an execution in his hands, at the suit of the defendant in error against Thomas W. and John Smith, for the sum of three thousand seven hundred and sixty-four 38-100 dollars, besides ten 12-100 dollars costs of suit.

Eesoh to the Circuit Court of Tuscaloosa. This was an action of trespass to try titles, brought in the Court below by the defendants against the plaintiffs. Under the charge of the Court the jury rendered a verdict in favor of the plaintiffs below, upon which judgment was rendered.

<p>Whit of Error to the Circuit Court of Sumter county.</p> <p>Ellis & Co. commenced this suit in the County Court of Sumter, and declared against Trott & Thomas in an action of assumpsit. The declaration contained -a count on a special contract, made by the plaintiffs with the defendants, to build a bouse, in a particular manner, and for which they were to receive certain specified sums from the defendants. The breach of this count is laid in the non-payment of the sums agreed upon. The declaration also contains counts for money due for work and labor, and on a quantum m&ruit.</p> <p>A verdict was found for the defendants on the general issue.</p> <p>In the record there are two bills of exceptions, both sealed by the presiding Judge, who adds to the last an explanation of his reasons for signing it. The first of these bills discloses that the jury was instructed that the written contract of the parties must be complied with; and if they believed from the testimony that Thomas & Trott, the defendants, had received the house under the written agreement, this was sufficient, and they were bound to pay for it; but if the parties, subsequently to the written agreement, had made a different special contract, then they were bound to find for the plaintiffs on the common counts for tyork and labor, &c. But they could not find on such written agreement and common counts both.</p> <p>The second bill states the charge to have been, that unless the plaintiffs had proved a special contract between themselves and the defendants, subsequent to, and distinct from, that declared on, they had no right to find for the plaintiffs on either of the common counts; and that the plaintiffs could not recover on both.</p> <p>The plaintiffs excepted, and a verdict was returned for the defendants, on which judgment was rendered. A writ of error from the Circuit Court was sued out, and the judgment of the County Court was there reversed for errors in the charges to the jury.</p> <p>From this judgment the defendants prosecute their writ of error, and here assign that the Circuit Court erred in reversing the judgment of the County Court.</p>

<p>Weit of Error to the Circuit Court of Benton.</p> <p>This was a suit brought by the defendants ’in error against the plaintiff before a Justice of the Peace, and a judgment being rendered in their favor, the cause was removed by certiorari to the Circuit Court.</p> <p>The statement filed by the plaintiffs in the Circuit Court al-ledged that H. P. Douthitt was indebted to them as the indorser of a note made by J. B. Palier, on the 9th of March, 1840, and payable on the 1st October thereafter, for forty-seven 50-100 ; Jind further, that the plaintiffs became the proprietors of the note on the 20th April, 1840, and recovered a judgment against the maker, on which an execution has been issued, and returned “ no property found,” according to the statute.</p> <p>On the trial a bill of exceptions was sealed, at the instance of the defendant, which sets out his indorsement as follows: “ For value received I endorse the within note to Hudson & Brockman, and warraut the payment of the same. April 20th, 1840. H. P. Douthitt.”</p> <p>On the 16th of October, 1840, the plaintiffs caused an attachment to be issued against the estate of Palier, which, on the 19th of that month, was levied on a negro boy, as the property of the defendant in attachment. On the 10th December, an order was issued by the Justice of the Peace before whom the proceedings were had, requiring the Constable to sell the slave levied on, who returned thereupon that he was not liable to be sold under the order. To all which evidence the defendant objected, but his objection was overruled and it was permitted to go to the jury.</p> <p>The defendant’s counsel then moved the Court to charge the jury, that the plaintiffs were not entitled to recover upon the evidence adduced; which charge was refused. Thereupon the Court instructed the jury, that to authorize ihe plaintiffs to recover of the defendant, the terms of his indorsement were such as not to make it necessary to sue the maker of the note, but the liability incurred by it was absolute and unconditional.</p>

<p>1. By going to trial in an action of forcible entry and detainer without objection to the regularity of the process, the return of the Sheriff, and the form of the complaint, all objections thereto are waived and cannot be made on error.</p> <p>2. The Justice of the Peace may grant a new trial in a case of forcible entry and detainer.</p> <p>3. A possession peaceably acquired will be converted into a forcible and unlawful detainer by a refusal to yield the premises on demand, and forcibly retaining it. Nor is it necessary that a demand to quit should be in writing, unless there was a previous tenancy, under which the possession was first acquired.</p> <p>4. The description of the land in the complaint must convey a distinct or definite idea of the land sought to be recovered ; but if no objection is taken to it in the Court below, it will be aided by the verdict and judgment if they identify the lands with reasonable certainty.</p>

<p>Wbit of Error to the Circuit Court of Mobile county.</p> <p>Action of assumpsit on the common counts by Johnson against Maynard & Co. Pleas — non-assumpsit, payment and set-off.</p> <p>At the trial the plaintiff offered in evidence -letters written by the defendants, conducing to show the course of dealing between them, and that in the year 1838, the plaintiff sold to the defendants a stock of drugs, for about two thousand dollars. Also an account rendered by the defendants to the plaintiff, under date of August, 1838, showing a balance against the defendants of 422 50-100 dollars. The defendants offered in evidence a note made by the plaintiff to them or bearer,under date of the 10th May, 1840, promising to pay 45 40-100 dollars on the first day of January then next.</p> <p>The defendants asked the Court to charge the jury, that the giving of a promissory note by the plaintiff to them, after the date of the account, on which the defendants admitted themselves indebted to. the plaintiff, was, if unexplained, presumptive proof of a settlement of accounts between them.</p> <p>. And the defendants asked the further charge, that the giving such promissory note by the plaintiff to the defendants was sufficient to warrant the jury in finding the plaintiff indebted to the defendants; and that if such fact be unexplained, the jury ought to find a verdict for the defendants, for the principal and interest of the note. These charges were refused, and the jury instructed they must take the whole case, and find such a verdict as tbs proof on both sides warranted; that the note was not conclusive evidence of a final settlement.</p> <p>The defendants excepted to the refusal to give the charges asked for, and also to that given, and prosecuto this writ of error to reverse the judgment rendered against them.</p>

<p>Wkxt of Error to the Circuit Court of Barbour.</p> <p>This was an action of assumpsit on a promissory note, brought by the defendant in .error. The writ was issued against Granberry and Wm, B. Deloach, as makers of the note, requiring them to answer the plaintiff, for the use of John P. Huntingdon, and was served on the defendant only. No return was made as to Deloach. The declaration is in the plaintiff’s name, for the use of Elliott Huntingdon, and contains the common counts in addition to a count on the note, against the defendant only,discontinuing the action as to Deloach,on whom it states process was not served. R.or the s.ame cause there is a discontinuance .of tire suit as to Deloach in the judgment, which is rendered by default against the defendant.</p> <p>contended, that as the declaration, in addition to a count upon the note, contained the common counts, and a final judgment by default, it was erroneous. The writ not being returned “not found,” as to Deloach, the discontinuance was irregular, and put an end to the suit. Lastly, the declaration was unauthorized by the writ, being in the name of the plaintiff, for the use of Elliott Huntingdon, instead of John P. Huntingdon. The plaintiff’s counsel cited Graves v. Lake, at this term,</p> <p>The efror's insisted on, even if irregularities, are too trivial to be noticed on error. It was not, according to the decisions here, necessary to non pros, the common counts before taking , a judgment by default on the count upon the note. And the Court will not look behind the declaration, and reverse for an error apparent upon the writ.</p>

<p>EkRo'íi to the Orphans* Court of Lowndes.</p> <p>On final settlement and distribution of the estate of Edward Lassiter, deceased, by the defendant in error as administrator.</p> <p>The defendant made known to the Court that the estate of his decedent was not indebted so as to prevent a division of the negro property among the widow and heirs, who are described, four of the latter being minors. Thereupon the Court appointed Commissioners to divide the slaves in the following manner:</p> <p>There being more than four children, and the widow being entitled to a fifth part, the Commissioners are directed to divide the slaves into five equal parts, as near as can be, including the amount or value of such property, as may have been given off to an3r of the heirs, by the decedent in his lifetime, the value to be ascertained by what it was worth at the time of delivery, which value is to be added to the amount or value of the negroes now on hand. One fifth part of which is by lot to be awarded to the widow.</p> <p>The Commissioners will then throw the remaining four shares into one common stock and divide the same into six equal shares, as near as may be, adding in the negroes or their value given to any of the children in the decedent’s life time, and ascertain by lot to which each share belongs.</p> <p>Any heir who may refuse to bring the negroes advanced to him by the decedent into hotch pot, his interest in the division to be dropped, and the slaves to be divided among the residue.</p> <p>The Commissioners proceeded to make division of the slaves among the widow and heirs, and returned the same to the Court, which ordered it to be recorded. The share allotted to the widow is thus stated:</p> <p>Now at this Court, the Commissioners appointed by this Court, to make division of the negro property of the estate of Edward Lassiter, between the several heirs at law of the deceased, came into Court and returned the lot drawn by Clarissa Lassiter, whereupon it is ordered by the Court, that the Clerk enter upon record in his inventory book said lot, drawn by Clarissa Lassiter.</p> <p>At the September term, 1841, of the Court, the administrator applied for a final settlement of the estate, whereupon the Court set apart the first Monday in November after, and directed publication to be made.</p> <p>At the November term the administrator produced his ac-ccounts for final settlement, which were ordered to be recorded, and thereupon the Court proceeded to make a final settlement of the estate, ascertaining the amount in the hands of the administrator subject to distribution, and decreeing the respective shares to each of the heirs, none appearing to be decreed to the widow. It does not appear that the heirs were present or that the minors were represented by their guardians.</p> <p>From this judgment the heirs presecute this writ, and assign for error—</p> <p>1. The Court erred in authorizing the Commissioners to ascertain the value of the slaves brought into hotch pot, and in disinheriting such of the heirs as would not bring their advancement into hotch pot.</p> <p>2. It does not appear that the widow had one fifth part allotted to her.</p> <p>3. The administrator did not file his accounts previous to final settlement.</p> <p>4. The Court erred in receiving the accounts of'the administrator on the day appointed for final settlement.</p> <p>5. No notice was given of final settlement after accounts filed.</p> <p>6. The minors were not represented at the final settlement.</p> <p>7. No share was set apart for the widow at the final settlement.</p> <p>S. The administrator was not entitled to his discharge.</p> <p>cited 4th Porter, 332; 7 ib. 270; Sib. 507.</p>

<p>1. The offence of usury is not complete so as to enable a common informer to sue for the penalty given by the statute until the money, &c. has been taken, accept, ed or received.</p> <p>S. When a cause is submitted to a jury on two counts of a declaration, one of which is bad and the other good, and the evidence sustains the bad count only, it is not error to refuse to charge that the plaintiff is .entitled to recover generally. If the plaintiff wishes a vpfdi.cf on such evidence, he must request the Court to charge the jury that he is entitled to a verdict on that count only to which his evidence applies; the evidence showing no legal cause of action.</p>

<p>This was an action of ejectment, brought by the plaintiffs in error, in the Circuit Court of Mobile for the recovery of “the east half of the south-west quarter of fractional section number four, south of range number one, west, in the district of land subject to sale at St. Stephens, Alabama, containing eighty acres.” The defendants, under the consent rule, confessed lease, entry and ouster, and the cause was tried on the plea of not guilty. On the trial a bill of exceptions was sealed at the instance of the plaintiff, from which it appears that James Eth-eridge, by notice addressed to the Register and Receiver of the Land Office at St. Stephens, on the 28th January, 1831, claimed the right of pre-emption under the act of Congress of the 29th May, 1830, to the south-west quarter of section twenty-two, township four, and range one, west. Afterwards, on the 30th May, 1833, a patent in due form was issued to Etheridge “for the south-west quarter of section twenty-two, in township four, south of range one, west, in the district of land subject to sale at St. Stephens, Alabama, containing ninety-two acres and sixty-seven hundredths of an acre, according to the official plot of the survey of the said lands, returned to the General Land Office, by the Surveyor General.”</p> <p>On the part of the defendants it was' shewn, that Wm. D. Stone, on the 25th March, 1831, by a notice addressed to the Register and Receiver of the Land Offide at St. Stephens, claimed the right of pre-emption, under the act of the 29th May, 1830, to the fraction situated in the west part of the south-east quarter of section twenty-two, in township four, range one west of thirteen. Afterwards, on the 17th day of December, 1832, a patent was issued in favor of Stone, “for the south-east .subdivision of fractional section twenty-two, in township four, south of range one, west, in the district of lands subject to sale at St. Stephens, Alabama, containing one hundred and ten acres and fifty hundredths of an acre.</p> <p>It was admitted that the plaintiffs have th.e entire interest which by the patent was conveyed to Etheridge, and the defendants were entitled to the land of which Stone was the pa-tentee. It was proved that the fractional section might be so subdivided as to survey an entire south-west quarter, without interference with any private land claim, leaving a residuum in the section, both on the north and on the east; and that the contents of the section were two hundred and ten acres, although the government survey indicated but two hundred and three 17-100 acres.</p> <p>The following diagram demonstates the form of the fractional section, with its subdivisions, as it is shown by the books of the Surveyor General.</p> <p> </p> <p>The plaintiffs proved that the subdivision marked on the diagram had never been made by the Surveyor by running and marking the line on the ground, but posts were found on the west and south lines, each a half a mile from the southwest corner, which appeared to have been placed there by the United States Surveyor.</p> <p>The Court instructed the jury that if they believed the evidence they must find for the defendant. And further, that if said fractional section twenty-two was capable of being subdivided into an entire south-west quarter section, or two half quarter sections, leaving a residuum still, the Surveyor General was not required under the acts of Congress providing for the subdivision of the public lands, and the instructions of the Secretary of the Treasury, made under the act of 24th April, 1820, entitled “an act making further provision for the sale of the public lands,” to make in his subdivision of the same, either such quarter section or half quarter sections; but might lawfully subdivide the same into two lots, as indicated by the diagram, and that under such a subdivision Ethridge’s patent did not entitle him to a quarter section, but only to the eastern lot marked A. while the western lot, B., vested in Stone, in virtue of his patent. The plaintiffs objected to a part of the evidence offered by the defendants, but no exception was taken to the decision of the Court overruling the objection. The jury returned a verdict for the defendants, and judgment being thereon rendered, the plaintiffs prosecuted an appeal to this Court.</p> <p>insisted that the laws regulating the survey of the public lands requires that fractional sections containing one hundred and sixty acres or more, must, if practicable, be so subdivided as to make one or more quarter sections. That the subdivision which appears on the books of the Surveyor General’s Office was unauthorized, as the fractional section of which the land in question is a part, might have been so divided as to make a south-west quarter, leaving a fraction on the east and north. Although the patent to Etheridge states the number of acres to be ninety-two 67-100, yet the description of the tract as a quarter section, is equivalent to a designation of length and breadth, and will control what is said as to quantity. They cited and commented upon the acts of Congress of 1796, 1800, 1804, 1805, 1820, 1S24, 1830, 1832, in relation to the survey and disposal of the public lands, pre-emption rights, &c. Also the second part of the work upon Public Lands, edition of 1838, containing instructions of the Secretary of the Treasury and Commissioner of the Land Office, and opinions of the Attorney General, see pages 1035,180-1-2-3-7, 921,820, 826-7, SI9, 854, 933-4, 136, 555, 363-8, 372.</p> <p>The plaintiffs also relied on 6 Cow. Rep. 607: 6 Cranch’s Rep. 237; 5 Mason’s Rep. 410; 1 Paine’s Rep. 496; 6 Cranch Rep. 165; 4 Stew, and P. Rep. 396; 2 Por. Rep. 40-3; 7 ib. 432; Wheeler’s Com. L. Cases Tit. Boundary, 488-9-90; 1 and 2 Ohio Rep. 144; 3 Stew. Rep. 76; 1 Ohio, 170; 1 Peters’ Rep. 665 ; 5 Porter’s Rep. 327 ; 3 Stew, and P. Rep. 105; 4 Stew, and P. Rep. 32 ; 5 Porter’s Rep. 245; 1 Pet. Rep. 13; 6 ib. 345; 3 Louisiana Rep. 59; Peters’ C. C. Rep. 496; 13 Pet. Rep. 498; 5 Wheat. Rep. 293; 7 ib. 212; 11 ib. 380; 10 ib. 662.</p> <p>The opinion of the Attorney General of the United States upon the present case, when it was under the examination of the Secretary of the Treasury, if it is to be regarded as authority, explicitly states that the fractional section was subdivided according to law. [2d part of the work on Public Lands, 136.] The opinion of the Attorney General is sustained by the instructions of the Secretary of the Treasury, under the act of the 24th April, 1820, [ib. 820,] and these instructions have been followed in the survey of the public lands, [881,854, 922.]</p> <p>But the opinion of the Attorney General is correct, independent of the exposition of the act of 1820, which had been previously made by the Secretary of the Treasury.</p> <p>Again — the defendants claim under the oldest patent, which appropriates the land in the eastern subdivision, but if the survey is to be changed Stone’s patent must cover a quarter section, instead of Etheridge’s.</p> <p>Lastly — the patents call for the map' made of the fractional section, and it is not permissible to claim under a survey never made as indicated by the map itself. [4 Peters’ Rep. 332.]</p>

EeRoe to the Circuit Court of Coosa. Action of debt commenced by the defendant against the plaintiff in error before a Justice of the Peace. The warrant is against William M. Gray, to answer the complaint of J. R. Thacker in a plea of debt, executed by Caroline R. Burton, now the wife of the said W. M. Gray. The Justice of the Peace allowed an off-set claimed by the defendant and rendered judgment in his favor.

<p>1. Where the contract is to pay a sum of money in promissory notes, due at a specified time and tobe endorsed by the defendant, it is not a sufficient breach to aver that “ the defendant, though often requested, has not paid the said sum of money in the said promissory note specified.”</p>

<p>Writ of Error to the Circuit Court of Talladega.</p> <p>The defendant in error declared against, the plaintiffs in as-sumpsit on a promissory note made by them on the 26th March, 1840, for the payment of the sum of eight hundred and fifty-three 47-100, current money of the State of Alabama, to him, one day after date. It is averred that the money in which the note is payable is of the value of the sum expressed in the note.</p> <p>The defendant pleaded several pleas, and on the trial he demurred to the evidence. From the demurrer it appears that the plaintiffs adduced a note in these words, viz :</p> <p>“ One day after date, we or either of us oblige ourselves, our heirs, &c. to pay, or cause to be paid, unto Thomas Penn, his heirs or assigns, the just and full sum of eight hundred and fifty-three dollars and forty-seven cents, current money of the State of Alabama, it being for value received, this 26th day of March, 1840. Joes W. Carter, [seal.]</p> <p>Henry CARTER, [seal.] ”</p> <p>It was also proved that payment of the note was demanded of the makers before suit brought. On this evidence the Cir-. cuit Court rendered a judgment in favor of the plaintiff for the amount of the note and interest.</p>

This was a bill filed by the plaintiff in error against the defendant in error.

Whit of Error to the County Court of Tuscaloosa County.’ This action was commenced as a summary proceeding, by-motion under the statute in, which the Bank recovered the amount of a bill of exchange, dated at Tuscaloosa, and payable in New Orleans, from Carson, as its drawer.

Writ of Error to the County Court of Sumter. A writ was issued at the suit of the defendant in error against the plaintiffs, founded on a promissory note, and was returned “ executed.” The plaintiff below declared against all the defendants, and a judgment by default was rendered against them.

<p>1. By a purchase of land at sheriff’s sale, the purchaser is invested with the title of the defendant in execution. If, therefore, the defendant is a tenant, his landlord cannot be permitted to become a co-defendant.</p> <p>2. The original record of a suit is competent evidence, although an exemplified copy would have been sufficient.</p> <p>3. Where a fieri facias is received by a sheriff, before his term of office expires, and without any action thereon by him, is handed over to his successor, the latter must execute the writ.</p>

Whit of Error to the County Court of Macon. The proceedings in this case are so defective as not to show with certainty, the right of the plaintiff to institute the inquiry upon which the judgment of the Court below was given. It may be inferred, however, from the caption of the case, that he claims as administrator of the estate of Elmira Outlaw, who was the widow of B. N. Pegues, deceased, and as such entitled to a distributive share of his estate.

The defendants in error, in February, 1841, filed their petition in the County Court of Dallas, setting forth that the wife of the petitioner, Mathew Neil, was late the widow and relict of James Johnson, who had there died intestate — that the administration-of his estate was committed to Wm.

<p>1. Where there are two defendants and one pleads usury, the other defendant cannot be compelled, against his will, to be examined as a witness, under the statute to prove the usury.</p>

ActioN for an unlawful detainer, commenced before a Justice of the Peace, who gave judgment of restitution in favor of the plaintiff, after which the suit was removed to the Circuit Court, by certiorari, where the judgment was reversed and the cause remanded to the Justice, with instructions to award a venire de novo. The complaint contains one count only, which is for an unlawful detainer.

The plaintiff in error was indicted at the March term, 1841, of the Circuit Court of Barbour, for the murder of Henry Blake — being arraigned he pleaded “not guilty,” and was put upon his trial, but the jury not agreeing in their verdict, and the term of the Court having expired, a mis-trial was ordered by the presiding Judge, and the cause continued.

<p>Eiutoit to Dallas Circuit Court.</p> <p>Trespass vi et armis by the plaintiff in error against the defendant in error, sheriff of Dallas county.</p> <p>The declaration charges the taking and carrying away various articles of household furniture and wearing apparel.</p> <p>The defendant craved oyer of the writ, and pleaded in abatement of the Suit; to this plea there Was a demurrer of which no notice appears to have been taken.</p> <p>The cause was tried on ihe pleas of not guilty, and a special plea of justification, to which a general replication was made.</p> <p>On the trial it' appeared from the testimony that the defendant had taken the goods mentioned in the declaration under an execution, as sheriff of the county. Among the articles thus taken, were two beds, and it was proved that the plaintiff had no other beds than those thus taken. TheCourt charged that the plaintiff could not show that the goods taken as aforesaid were exempt from execution, unless that fact had been replied specially to the plea of justification, to which the plaintiff excepted.</p> <p>The defendant had judgment, and the plaintiff prosecutes this writ and assigns for error.—</p> <p>1. The demurrer to the plea in abatement is not disposed of.</p> <p>2. There is no replication to the pleas.</p> <p>3. The matter shown by the bill of exceptions.</p>

Weit of Error to the Circuit Court of Mobile County. This is an action on the case brought by Gregg against Crawford, and its nature will appear from an abstract of the facts alledged in the declaration. One Robertaille had recovered a judgment in the Circuit Court of the United States, for the Southern District of Alabama, against George W. Botts, William D. Scull and the plaintiff, on a joint and several note, to which the plaintiff was the security for Botts.

Wkit of error to the Circuit Court of Lowndes. This was an action of assumpsit by the defendant in error as the indorsee of a promissory note against the plaintiff’s intestate. The writ was returnable on the first Monday after the fourth Monday in September, 1840, and executed on the 30th of that month.

This was a bill in Chancery, filed by David Hubbard against the plaintiffs in error.

Wkit of Error to the County Court of Dallas county. This action was brought by Nance against the indorser of a bill of exchange. A great number of questions are raised upon the record, both with respect to the pleadings and the merits of the case, but as only one is determined by the Court, the facts and pleadings in connection with that only are stated. The case was tried on the general issue, and there was a verdict and judgment for the plaintiff.

<p>Wxx~ of Error to the Circuit Court of Autauga.</p> <p>The defendant in error declared against the plaintiff in as-sumpsit on a promissory note of the following tenor, viz:</p> <p>"~553 00.</p> <p>On the first day of January next, I promise to pay Henry Lewis, or bearer, five hundred and fifty-three dollars, for the hire of three negro men for the present year, to wit, Billy, Abram and Anderson, this 19th January, 1888.</p> <p>ALVIN A. McWxoRTxx,</p> <p>President W. 4~ Coosa 1?. R. Company.".</p> <p>The defendant pleaded-i. Non assumpsit. 2. That the Legislature, on the 9th of January, 1836, incorporated by statute the Wetumpka and Coosa Rail Road Company,and among other powers authorized it to elect a President and Directors. On the 4th June, 1836, the Company elected a Board of Directors, who being duly organized, elected the defendant their President. Afterwards, on the 25th December, 1837, the Directors, in virtue of the charter, authorized the defendant to employ, by hiring, slaves and other able bodied hands to work and be engaged in the service of said Company. The plea avers, that in pursuance of the directions of the Company, the defendant hired of the plaintiff three slaves, to wit: Anderson, Bill and Abram, as the agent and President of the Board of Directors, and in that character and none other made the note declared on — that it was delivered to the plaintiff and accepted by him as the note of the Company, and not as the individual note of the defendant. And therefore it is alledged_ihg¿j¡be credit was given by the plaintiff to the Compafl^^iJ^ji^ the defendant acted in his official capacity ¡/fuct|t&r that tne | labor and services of the slave were receive®, Exclusively «Fret the Company. \</p> <p>The plaintiff took issue on the first plea ancf demurred tgjhí, J second — his demurrer being sustained the canomitted to a jury, who returned a verdict in his favor, otfewhish ivtfgT ment has been rendered.</p> <p>On the trial the defendant excepted to the ruling of the presiding Judge. From the bill of exceptions it appears that the plaintiff introduced the note in suit, and rested his case. The defendant then proposed to prove that he was duly and legally elected President of the Wetumpka and Coosa Rail Road Company, that the Board of Directors, on the 25th of December, 1887, authorized the defendant, as President of the Company, to employ, by hiring, slaves and other able bodied hands to work and be engaged in the service of the said Company, and that in pursuance of the order and direction of the Board of Directors, he, defendant, hired of the plaintiff three slaves, named in the note, as the agent and President of the Board and Company, and in that character, and none other,made the note for the hire of the slaves. That the plaintiff gave the exclusive credit to the Company, and received the note as its promise and undertaking — further, the Company received the entire benefit of the services of the slaves hired.</p>

<p>ERROR to the County Court of Conecuh.</p> <p>Assumpsit on a promissory note by defendant against plaintiffs in error.</p> <p>The declaration is in the usual form, and an entry on the record of pleas in the following words:</p> <p>“ In this case defendants come and plead in short, by consent, non assumpsit, payment and set off.</p> <p>Attest, . Wm. S. Btjrd, DePts Alto.-”</p> <p>' The judgment is rendered thus: “Application in this case for continuance on the part of the defendant. On the showing it did not appear that ordinary diligence had been used, and application overruled. This day came plaintiff, by his attorney, service of writ being proved and the defendant having failed to file his plea within the time prescribed by law, hut wholly makes default, it is therefore considered,” &c.</p> <p>From this judgment this writ is prosecuted, and the defendants now assign for error—</p> <p>1. The rendition of judgment, without disposing of the pleas.</p> <p>2. The declaration shows no cause of action.</p> <p>cited 8th Porter, 469; 1 Ala. Rep. 515; 2 ib. 337.</p>

Wkxt of error to the Circuit Court of Talladega county. Trover, for the valué of a negro slave. At the trial, a witness, who was the son of the plaintiff, testified that the slave was loaned to him by his father, as a nurse.

Whit of Error to the Circuit Court of Lowndes. This was a trial of the right of property under the statute. From the record it appears that a writ of fieri facias was issued at the suit of the defendant in error against the goods and chattels, &c. of Wm. J. Staggers, and was levied on a negro man as his property, to whom the plaintiff in error interposed a claim. The question of the liability of the slave to satisfy the execution was tried by a jury.

EkRou to the Circuit Court of Butler. Assumpsit by the plaintiff'against the defendant in error. Pleas — non assumpsit, failure of consideration, want of consideration.

<p>1. An action of covenant may be maintainedon an attachmentbond.</p> <p>U. In assigning the breaches in such an action, if the damages al/edged to h'ave been Sustained exteed the penalty of the bond, it is proper to assign the non* payment of the penalty; if they do hot amount to as large a sum as the penalty then the breach will be (he non-payment of the damages actually sustained.</p> <p>3. Actions upon attachment bonds are governed in all respects by the rules appli* cable to actions on the case for wrongfully suing out attachments, but the re* cuvery never can exceed the penalty of the bond.</p>

Wb.it of Error to the Circuit Court of Tallapoosa. This was a proceeding by motion against the plaintiffs in error as the sureties of Martin T. Ellis, sheriff of Tallapoosa, for the failure of the latter to return an execution previously placed in his hands at the suit of the defendant in error, against John Bradford.

EkRoe to the Circuit Court of Benton county. Assumpsit on promissory note by the ■ defendants in error against the plaintiffs in error.

Whit of Error to the Circuit Court of Autauga county. The plaintiff declared in assumpsit on a promissory note for five hundred dollars, and it appears from the record that two other cases were consolidated with this,but the transcript does not contain the declarations filed in those cases. The defendant pleaded non-assupsit, payment, want and failure of consideration, and the plaintiff had judgment upon a verdict returned in his favor on these issues.

WRIT of Error to the Circuit Court of Autauga. The defendant in error declared against the plaintiff in cw-sumpsit, on a promissory note of the following tenor: “One day after date I promise to pay James A. Bullock, as-signee of Joseph M. Bullock, or bearer, fifty-one dollars and fifty-four cents, with interest from the first day of January last, for value received. February 20th, 1841.

EkeoR to the Circuit Court of Tallapoosa. This was an action of assumpsit.

<p>Wkit of Error to the Circuit Court of Mobile county.</p> <p>The defendant in the Court below objected to the reading of the deposition of a witness, because the certificate of the commissioner omitted to state the hours between which the commission was executed. The commission directed the witness to be examined at the office of the commissioner, in the town of Huntsville, on the I5th day of October, between the hours of 9 A. M. and 4 P. M. The certificate of the commissioner recited that, pursuant to the annexed commission, he had caused the witness to come before him at his office, in the town of Huntsville, on the 15th day of October; but it is entirely silent with respect to the hour when the examination commenced or concluded. The deposition was admitted, and the defendant excepted.</p> <p>cited 3 East, 440 ; Bell v. Morrison, 1 Peters, 351; Campbell v. Woodcock, 2 Ala. Rep. 41; Ulmer v. Austil, 9 Porter, 157; Kean v. Newall, 1 Missouri Dec. 751.</p>

<p>1. To recover upon a decree rendered in a sister State in favor of infant wards, who there sued by their guardian, an aotion should be prosecuted in this State in the name of the wards as legal plaintiffs, and not by the guardian, merely describing himself as such on the record.</p>

Eiíkor to the Circuit Court of Montgomery. This was an action of trespass quart clausum fregit, by the plaintiff against the defendant in error. The defence was that the supposed trespass was committed by the defendant, as an overseer of the road, removing a fence which the plaintiff had placed across it a short time previously.

, Wkit of Error to the Circuit Court of St. Clair county. Action of debt on bond. The declaration consists of a single count for the penalty.

On the 10th May, 1841, the defendant in error propounded for probate, to the Orphans’ Court of Marengo, a papor purporting to be the last will and testament of Polly Glover, late of that county deceased, of which-he was appointed executor. Thereupon citations were issued to John 0.

Ep.koR to the Circuit Court of Barbour. Assumpsit by the defendants against the plaintiff in error, and another, as to whom the cause was discontinued. The sheriff returned on the writ, “ not executed, by order of the attorney.” The judgment of the Court is,“ Came the plaintiffs, and discontinue as to Battle, who was not served with process, and proves- acceptance by Boughton, who made default. It is therefore considered,” &c. The assignments of error are— 1.

WRIT of Error to the Circuit Court of Talladega county. . This is a proceeding against the assignee of a debtor under the act of the 6th February, 1840. The plaintiff, McCain, sued out process of garnishment against one John L. Smith, as a debtor of Elisha B. Steadman, against whom, together with one Rivers, who were judgment debtors of said McCain, writs of fieri facias had been issued, apd returned nulla bona.

Whit of Error to the County Court of Lowndes. This was an action of trover brought by the defendants in error against the plaintiff’s testator, to recover damages for the conversion of a gold watch,chain and seal. Pending the cause the testator died, and it was regularly revived against his executrix. On the trial the defendant excepted to the ruling of the presiding Judge.

<p>1. A bill of interpleader lies only where two or more persons claim the same deb or duty from the complainant, by different or separate interests.</p> <p>2. The bill alledged that the testator of complainant executed two notes- to J. C, with J. as surety — that the testator was afterwards garnisheed by 0. & B. to answer whether he was not indebted toP.C.; that after his death, a jury, upon an issue made upon complainant’s answer, found that the testator was so indebted, and judgment was rendered against her in favor of O. & B. on the garnishment! that J. C. instituted a suit against J. as the surety of the testator, and recovered a judgment against him, which he discharged, and moved against the complainant for a judgment for the amount so paid as surety of the testator— Held that this was not the case of two persons claiming the same debt, and that a bill of intepleader would not lie.</p>

<p>1. A judgment de bonis testatoris is erroneous when the declaration sets out a cause of action created by the administvatorin his own name and right, although he is described as an administrator in the'declaration.</p> <p>2. Where a judgment is rendered de bonis testatoris when it should have been de bonis propriis, it will be reversed and rendered at the cost of the plaintiff in error.</p>

The prisoner, a slave of Daniel Long, was indicted at the Circuit Court of Dallas, holdeti in 1842, for the murderof Reuben, a slave of the same master.

The bill charges that the defendant, Reid, as sheriff of Montgomery county, received an execution from the Circuit Court of Montgomery, in favor of the defendant, Mead, against the defendant, Gillan — That Gillan was possessed of a valuable stock of goods, in the town of Montgomery, and to prevent a levy on the goods and save the trouble of taking an inventory, and prevent the necessity of closing the doors of the store of Gillan, it was agreed between the sheriff and Gillan…

Whit of Error to the Circuit Court of Tuscaloosa county. Assumpsit by Brown, who states in bis declaration that he sues for the use of Clements against Foster. The plaintiff sues as indorsee of a promissory note, not payable in bank, made by -one Atkins, payable to one Beard, by him indorsed to the defendant, and by him to the plaintiff. The declaration contains the averment of suit against the maker, and the return of the execution against him of nulla bona.

<p>1. The Register of a Court of Chancery is bound to furnish the copy of a bill to the defendant, together with the subpoena, although the plaintiff may not have paid him his fees therefor.</p>

Upon the trial it appeared that the defendant, as sheriff of Greene county, had levied on twenty-five bales of cotton, as the property of one Isaac Jordan, against whom he had an execution, and left the cotton so levied on, in the ware-house where he found it. It also appeared that the plaintiff claimed fifteen bales of the cotton by purchase from Jordan, before the levy, but whether before or after the execution came to the sheriffs hands, was not shown.

Whit of Error to the County Court of Shelby County. The first matter which appears in this record is a report of certain Commissioners, setting out that they were appointed by the Hon. P. T. Harris, Judge of the Circuit Court for this State, Commissioners to settle and adjust the claims against the estate of George L. Medlock, that they met at Montevallo, on the 9th day of October, 1840, and from the vouchers and assets of the said estate, presented to them by Woodruff, the…

This was a suggestion in the County Court of Sumter by the defendant in error against Gary, as sheriff of that county and his sureties, that the sheriff could, by due diligence, have made the amount of an execution issued from that Court and placed in his hands, at the suit of the defendant in error against John Hillman for the amount of one hundred and thirty-one dollars damages, and thirteen dollars and sixty-eight cents costs of suit.

<p>1. A note payable to “ the President and Directors of the Planters’ and Merchants’ Bank of Mobile,” is in its legal effect a note payable to the corporation, and may be sued on as such.</p>

Weit of Error to the Circuit Court of Talladega county. Detinue for a slave. The cause was determined on a demurrer to the evidence and upon the general issue. The evidence is stated at large, but may be condensed into the following facts : Charles Harvey, the plaintiff in the present action on the 26th December, 1840, was in custody of one Jeter, on a peace warrant, issued by a Justice of the Peace, at the suit of his wife.

Wkit of Error to the Circuit Court of Mobile. This was an action of assumpsit by the defendant in error against the plaintiff, to recover the price of cotton sold and delivered. The cause was tried on the general issue.

<p>1. Where a notice was given by a Bank that a motion would be made for judgment against four persons, and a judgment was taken against two only, and this judgment set aside and the cause continued and at the next ten* a judgment was taken against all four, without any other notice, the judgment against all was erroneous, because there was no evidence that a motion was submitted, at the first term against the two who were not noticed in the first judgment.</p>

Weit of Error to the Circuit Court of Coosa County. The questions made by the assignments of error grow out of the rendition of a judgment against the securities of Quinn to on appeal bond. The action was commenced before a Justice in the name of E. W. Quinn, for the use of Abner Quinn, against Adair.

Wkit of Error to the Circuit Court of Mobile. This was an action of trespass by the defendant in error against the plaintiffs, to try the title to, and recover the possession of, certain real estate, situate in the county of Mobile, together with damages for its occupancy. The cause was tried at the term of the Court holden in April, 1839, and a verdict returned in favor of the plaintiff, that he recover the possession of the land and one thousand dollar's damages.

Detinue for a slave by the defendant in error against the plaintiff in error.

<p>Appeal from a judgment of the Circuit Court of Mobile, quashing an execution.</p> <p>cited 1 Strange, 100; Hardin’s Rep. 521.</p>

Wkxt of Error to the County Court of Tuscaloosa. This was a proceeding in bastardy, commenced under the statute, by the defendant in error against the plaintiff, in which she charges him with being the father of a bastard child, of which she had been delivered more than three years previously.

The plaintiff in error having obtained a judgment against one Thomas R. Bolling, upon which an execution was returned “no property found,” made the necessary affidavit and sued out process of garnishment against the defendant in error as a debtor of Bolling.

<p>1. When the Court improperly refuses to dismiss a claim to try the right to property levied on by an execution,- and non-suits the plaintiff for his refusal to proceed further in the cause, this is an error sufficient to reverse thejudgment.</p>

WRIT of Error to the Circuit Court of Lowndes. The defendant in error, as the administratrix-of William H. Dailey, deceased, declared against the plaintiff in assumpsit— 1. Upon a promissory note for the payment of four hundred and six 94-100 dollars. 2. For services rendered by the intestate as an overseer. 3. For work and labor done,&c. The cause was tried by a jury, and at the trial, the defendant below excepted to the ruling of the presiding Judge.

Ekror to the County Court of Mobile. Assumpsit b}r defendant in error against plaintiff in error, as indorser of a promissory note for thirty-six hundred dollars, executed by McRae and Laing to the plaintiff in error, and by him indorsed to the defendant in error.

<p>Whit of Error to the Circuit Court of Autauga county.</p> <p>This is a summary proceeding, by motion, against a sheriff and his securities, for failing to return a writ of capias adres-pondendum. The defendants demurred to the notice and their demurrer being overruled they pleaded oyer, and a verdict was found against them, on which judgment was entered. The judgment entry discloses all the facts and circumstances, from which the jurisdiction of the court is to be supported or denied.</p> <p>The writ of error is prosecuted by the sheriff and his securities to revise this judgment, and the assignments of error question the jurisdiction of the court to entertain the motion.</p> <p>insisted that none of the legislation subsequent to the act of 1821,[Digest 279, §119,] gives any summary proceeding against a sheriff or his sureties for such a default as this. The act of 1S21 was intended solely to give a new return day, and ought not to be so construed as to confound the remedies on executions, with those upon ordinary writs.</p> <p>contended that the several acts giving summary remedies against sheriffs are remedial in their nature, and ought therefore to be construed so as to advance the remedy and repress the mischief.</p> <p>The act of 1821, provides that a sheriff failing to return a writ or execution three days before Court, shall be liable to all the penalties of the laws then in force for failing to return any writ or execution.</p> <p>This must be construed to give the same remedy for failing to return a writ, as then existed for failing to return an execution; because the intention to give some remedy by this act is evident from its terms.</p>

Wkit of Error to the Circuit Court of Barbour. , This was an action of covenant by the plaintiffs in error, and David C. Kolb, their deceased partner. The declaration contains three counts.

<p>ERROR to the Circuit Court of Dallas.</p> <p>Detinue for a slave by the defendant in error against the plaintiff in error.</p> <p>Upon the trial below it was in evidence that the plaintiff, had married the sister of the defendant in 1S28 — that the father of the defendant and plaintiff’s wife, by his last will and testament, made a disposition of the slave in controversy in the following words: “I give and bequeath unto my son Noel Pitts, a negro boy named Jacob, until he arrives at the age of twenty-one, and the remainder of his life to my daughter Henrietta Pitts.” The negro boy became twenty-one years of age in the year 1839, went into possession of defendant under the will and has so remained ever since. Henrietta, wife of plaintiff, died in 1836. There was proof of demand and refusal.</p> <p>Upon this state of facts the Court charged the jury that the facts if true, authorized the plaintiff to recover the slave, to which the defendant excepted.</p> <p>Judgment was rendered for the plaintiff. The errors assigned question the propriety of the charge of the Court.</p> <p>insisted that the negro in question belonged to the representatives, or next of kin, of the wife; that the husband was not entitled to it, because it never had been reduced into possession. [3 Stewart, 375 ; 9 Porter, 636; 2 Nott& McCord, 147.]</p> <p>That the cases relied upon from Kentucky were not applicable, because made in reference to statutes éntirely unlike ours, by which slaves were considered real estate.</p> <p>maintained that this was not a chose in action, but a vested interest in the slave, which would have gone to the representatives of the husband if his wife had survived him. That the possession of the son, taking the particular estate, was the possession of those -in remainder. [2 Call, 447; Clancy on Rights, 11; 8 Porter, 36; 3 Littell, 275; 4 id. 356; Litt. Sel. Cases, 331; 4 Bibb, 174; 1 H. B. 535; Coke Litt. 351, note a.; 1 Cruise Dig. 59; 3 Wilson, 521; 3 Term, 631; 7 id. 390; 8 id. 213.]</p> <p>To show that where the cause of action has its inception before marriage, but is completed afterwards, the husband and wife may join, or may sever in trover or trespass, but that in detinue the husband must sue alone, he cited 1 Chit. P., 6 ed. 85, 139; 1 Sel. N. P. 546; 2 Murphy, 351.</p>

Action for an unlawful detainer of a certain piece of land situate in the city of Wetumpka. The suit was commenced before a Justice of the Peace by ■Clark against Stringfellow, and after judgment in favor of Clark, was removed into the Circuit Court by certiorari, where the judgment was affirmed.

<p>Whit of Error to the County Court of Mobile.</p> <p>The plaintiff in error having recovered a judgment against Jesse Turner, caused a fieri facias to be issued thereon and placed in the hands of the sheriff of Mobile. This execution was levied on a negro man, to whom the defendant interposed a claim, and entered into bond with surety for the prosecution thereof, pursuant to the statute. The bond bears date the 22d July, 1840, but the case of the trial of the right of property was not placed upon the docket of the County Court, to which it was properly returnable, until the February term, 1842, after two or three terms had intervened since the execution of the bond: whereupon the County Court, for the reason that the cause was not placed on the trial docket in time, determined that it should be stricken therefrom; which was accordingly done, and thereupon the plaintiff in execution excepted, &.c.</p>

<p>1. An administration bond is an official document appertaining to the administration, and cannot be removed from the office of the Clerk of the Orphans’ Court, without a breach of his official duty — when necessary to be given in evidence an examined copy, or one verified by the certificate of the proper officer, is sufficient, without producing or accounting for the original.</p> <p>2. In an action against a surety to an administration bond, it is necessary to shew that assets came to the hands of the administrator, and the surety is responsible only to the extent of the devastavit. After the plaintiff has shown what amount of assets came to the hands of the administrator, it rests with the defendant to show that they have been lawfully appropriated.</p>

<p>1. It is not necessary in a suit against partners, to describe them as such in the writ.</p>

<p>This was an action of assumpsit in the Circuit Court of Pike, by the defendant in error against the plaintiff. The declaration contains the common counts, for Avork and labor done, goods, Avaros and merchandise sold and delivered, money lent advanced, paid, laid out and expended, money had and received, and upon an account stated. The cause was tried on the pleas of non assumpsit, set off and payment.</p> <p>At the trial the defendant excepted to the instructions of the presiding Judge to the jury. From the bill of exceptions it appears that the defendant had sold to the plaintiff the quarter of a quarter section of land for the sum of two hundred dollars, one hundred of which sum was to be paid in hand, the residue some short time thereafter. The plaintiff paid to the defendant a mare at the price of one hundred dollars; to recover back that sum this action was brought. The defendant had been, and continued up to the trial in peaceable possession of the land under his purchase, the occupancy of which, with its improvements, was worth from sixty to seventy-five dollars annually. The possession of the plaintiff had continued for three years. The sale from the defendant to the plaintiff of the land was not evidenced by writing, but the plaintiff had offered to pay the residue of the purchase money in notes, which offer was rejected unless he would insure their collection.</p> <p>The defendant prayed the Court to charge the jury, that the purchaser of land taking and remaining in possession thereof, could not maintain an action against the vendor for the recovery of the money paid by him on such purchase; which charge was refused by the Court. Further, that the rent of the land for the three years during which it had been in the plaintiff’s possession, was a fair set-off against his demand; which charge was also refused, on the ground that it was not pleaded.</p>

<p>ERROR to the County Court of Tuscaloosa.</p> <p>This was an action of assumpsit by the plaintiff in error against Duffee & Healy, as makers of a promissoiy note for eighteen hundred and thirty-five dollars and forty-six cents, dated Mobile, 30th September, 1835, due five months after date, and payable to F. Gumming, and by him indorsed; and one for the same amount, dated 15th October, 1835, at four months.</p> <p>Pending the suit Healy died, and the cause was continued against Duffee.</p> <p>Upon the pleas of non-assumpsit, pa3unent and set-off, the defendant obtained a verdict..</p> <p>Upon the trial below, it appeared in evidence that Gumming & Remy formed their partnership in 1835, and that from that time until their dissolution in 1837, that firm and the firm of Duffee and Healy at Tuscaloosa, had large dealings together in mercantile transactions. That on the dissolution of the firm of Cumming & Remy, and death of the former, the papers of the firm fell into the hands of Remy. That in 1837, Cumming told the witness that Duffee & Healy had paid up all the claims they had against them, and that in 1838 Remy said that he held an account to the amount of sixteen hundred dollars against Duffee & Healy, which they had refused to pay, but that if'they did not pay it he would sue them on two notes in his possession, which had been paid and not taken up. The plaintiff’s counsel moved to exclude tiiis testimony, btff the Court refused to exclude it.</p> <p>The defendant also proved that it was customary among merchants in Mobile to retain in their possession notes and bills paid by them for persons up the country, for settlement at the end of the year. This evidence was also objected to, but the Court overruled the objection.</p> <p>The Court charged the jury that if Gumming & Remy, whilst they were the owners of the notes in suit had acknowledged they were paid by the defendants, they must find for the defendants ; that if the plaintiff was an innocent holder of the notes before maturity, they must find for the plaintiff — to which the plaintiff excepted, and now assigns the same for error.</p>

Whit of Error to the Circuit Court of Clark county, Action of trespass to try title. Pleas — not guilty and libe-rum tenementum. Verdict and judgment for the plaintiff. Held: was not a perfect one, and that the conditions of the grant had failed. These charges were severally refused.

<p>1. It is competent for a merchant to establish an account by proof that thé entry . on his book is in the handwriting of a deceased clerk, who is proved to have been correct and accurate in making his charges ; and where a deposition professes to set out an exact copy of the entry, as thus, “ 500 doz. cut glass beads, ' a 30 cts. $100,” it is evidence to show that at least one hundred dollars was due for the articles charged; the plaintiff claiming only that sum by his declaration, the fair inference is, that the sale was made at twenty cents the dozen, and the mistake- was made by the commissioner or scrivener who wrote the deposition.</p>

Ekrok to the Chancery Court of Mobile. This was a bill in Chancery, fried by the defendants in error to set aside a deed of assignment made by Audley H. Gazzam. The complainants alledge that they are judgment creditors of A. H. Gazzam, having obtained judgment against him for ®7,568, besides costs — that an execution issued thereon to the sheriff of Mobile county, which he returned no property found. That another execution has issued and been levied on certain lands of A. II.

Whit of Error to the Circuit Court of Autauga. This is an action of debt on a prison bounds bond, conditioned that McMichael should continue a true prisoner within the custody and keeping of the keeper of the said prison, (the jail of Autauga county,) or of his steward, deputy or other officer, or some of them, within the limits of the prison bounds, as by law established, until he should be discharged by due course of law, without committing any escape in the mean time.

Wkit of Error to the County Court of Tuscaloosa. The defendant in error having sued out an attachment against the estate of Thomas Amis, caused a garnishment to be served on the plaintiff, requiring him to state on oath what he was indebted, &c. to the defendant in attachment.

<p>1. A judgment rendered by default against a garnishee on the third day of the term to which he is summoned, is erroneous and will be reversed on error.</p>

Wkit of Error to the Circuit Court of Sumter County. Bates declared against Puckett on the common counts for work and labor, and for materials furnished in erecting a house. A verdict was found as upon issue joined, and judgment rendered thereon for the plaintiff. The defendant had a bill of exceptions sealed at the trial, which discloses the following facts.

<p>The plaintiffs, by their counsel, have presented to this-Court a record of the County Court of Mobile, showing that on the 29th April, 1840, they brought an action of assumpsit against the defendant, in that Court, on several promissory notes, amounting in the aggregate to the sum of eighteen hundred dollars, or thereabouts, exclusive of interest and exchange. • On the 21st May, 1840, the plaintiffs caused an attachment to be issued pursuant to the statute, as ancillary to the aetion, which attachment was levied on the same day otunerchandize and a replevy bond executed therefor. At the return term of the attachment, a motion was made to quash it, on the ground that the bond executed by the plaintiff was insufficient; this motion being continued until the next term, was accordingly granted. Afterwards the plaintiffs recovered a judgment by nil dicit against the defendant for the amount of the notes and interest, and in order to make the same available, now move for a writ of mandamus to be directed to the Judge of the 'County Court of Mobile, requiring him to reinstate the attachment in his Court.</p>

Assumpsit by the plaintiff in error, as assignee, against the defendant in error as assignor of a promissory note executed by E. H. Moore & Co. The declaration, which is in the usual form, charges that suit Was brought against the makers “ to the first Court of the :aforesaid county, of the residence of said E. H. Moore & Co. to which, a writ could properly be made returnable, to wit: tor the.

Wkit of Error to the Circuit Court of Greene county. Detinue to recover a quantity of lumber. ■ The cause was tried on the general issue, and a verdict returned in favor of the plaintiff, Mabe, on which judgment was rendered. A bill of exceptions was sealed at the instance of the defendant Foster, which discloses the following facts.

<p>Whit of Error to the Orphans’ Court of Pickens.</p> <p>The decree complained of, adjudges that the sum of four thousand one hundred and one dollars and sixty-one cents, should be paid by the plaintiffs in error to the defendants, as guardians of Edith M. Booker; further, the sum of seven hundred and twenty dollars and thirty-seven cents should be paid them as a compensation for services, &c.; and lastly, the sum of one thousand six hundred and fourteen dollars and seventy-seven cents should be paid them for moneys advanced, &c. The decree concludes thus: “ Ordered that executions may issue for the aforesaid several sums of money.” The writ of error only complains of the decree, so far as it directs the payment of four thousand one hundred and one dollars and sixty-one cents, and the defendants now move to dismiss the same, as irregular.</p>

<p>Error to the Circuit Court of Pickens.</p> <p>Detinue for two slaves by the defendant against the plaintiff in error.</p> <p>On the the trial of the cause the plaintiff, as the foundation of his title offered the following instrument:</p> <p>Received, of Thomas B. Childress, trustee of James Chil-dress, Hubert Childress, and Thomas Childress, children of the said Thomas B. Childress, the sum of thirteen hundred and fifty dollars, in full, for two negro slaves, named Sam, twenty-six years of age, and Frank, twenty two years of age, which I warrant and forever defend against the claims of any person whatsoever, and also warrant the said negroes to be sound and healthy and free from all incumbrance whatsoever. Given under my hand and seal, 1st March, 1838.</p> <p>John Beard, (seal.)</p> <p>Which being the only evidence of title, was objected to by the defendant as insufficient for that purpose, but the Court overruled the objection and permitted the evidence to go mthe jury, to which the defendant excepted.</p> <p>The assignment of error questions the propriety of this decision.</p>

Writ of Error to the Circuit Court of Sumter county. Brown, declared in trespass against Bailey for wounding certain cattle. At the trial on the general issue, the evidence was, that the defendant had killed one mule and wounded another. The Court charged the jury, that the allegation of an injury to cattle was not supported by the evidence of an injury to mules. The plaintiff excepted, and now questions the correctness of this decision.

Wbit of Error to the Circuit Court of Talladega. The plaintiff in error recovered a judgment before a Justice of the Peace on the 30th March, 1839, for forty-five dollars and ninety-three cents.

<p>1. The act of 1832, [A:k. Dig. 253,] which authorises an execution to issue against the surety of an executor to his official bond upon a return of “ no property found," to an execution issued on a decree of a County Court against the executor, was intended to embrace bonds executed prior to its passage, but was not intended to retroact upon decrees of the Orphans’ Court rendered prior to the passage of the law. The act is constitutional.</p> <p>2. E. & W. being appointed executors of S. qualified as such, and entered into the following bond : “ Know all men by these presents, that we, Edward B. Elliott and Thompson Windham, executors of lohn Spencer, Hardin Perkins and Enoch Elliott, as sureties for said Edward B. Elliott, and William Glover and John Cummings as sureties for Thompson Windham,- are held and firmly bound unto Plume R. Field. Judge of the County Court of Tuscaloosa county, and his successors in office, in the penal sum of thirty thousand dollars, to which payment well and truly to be made, we and each of us do bind ourselves, our heirs, &c. firmly by these payments. Sealed with our seals and dated this 24th January, 1827.</p> <p>Now the condition of this obligation is such, that, whereas, the above bound Edward B. Elliott and Thompson Windham, have been duly appointed executors of the last will and testament of John Spencer, deceased — Now if the sard Edward B. Elliott and Thomas Windham shall well and ttuly perform all the duties which are or may be by law required of them, as such executors, then the above obligation to be void, else to remain in full force and virtue.</p> <p>Witness our hands and seals the date above written.</p> <p>E. B. Elliott, [seal.]</p> <p>Thompson Windham, [seal.]</p> <p>H. Perkins, [seal.]</p> <p>Enoch Elliott, [seal.]</p> <p>W. Y. Glover, [seal.]</p> <p>Thomas Cvicmings, [seal.]</p> <p>Held — first, that as it was clearly the intention of the sureties to this bond not to bind themselves jointly for both executors, but severally for each, the bond would operate as the several bond of each executor, with his sureties, and was in effect the same as if separate bonds had been executed — second that there was nothing in the condition to contradict this intention, or to show that it was intended as a joint bond — third, the mere fact that the bond appears on its face to have been executed by Thomas Cummings instead of John Cummins, will not render the bond void as to the other parlies who executed it.</p>

<p>Writ of Error to the Circuit Court of Sumter county.</p> <p>Action of trespass, under the statute to try title. V erdict and judgment in favor of the defendant.</p> <p>At the trial the plaintiff read in evidence a judgment obtained at the October term, 1837, of said Court, by Isaac Ci Sned-icor against Cornelius Rain, for #712 96. This judgment was superseded by writ of error, and was affirmed at the June term, 1838, of this Court, against Rain, and judgment also given against William Johnson and Cleaveland Robb, his securities on the writ of error bond. A writ of Ji.fa. issued on this affirmed judgment against all the defendants to it, on the 15th April, 1839, which on the same day was received by the sheriff of Sumter.</p> <p>This writ was endorsed by the Clerk that a fi. fa. on the same judgment, on a forfeited forthcoming bond issued the same day to Mobile county; and the payment of that would be a su-persedeas to the one thus indorsed. The writ to Sumter county was levied on the tenements sued for, and under which they were sold as the property of Cleaveland Robb, on the 5th of August, 1839, to the plaintiff. It was also in evidence that Robb lived in Sumter county, and Rain and Johnson in Mobile. The plaintiff then offered to read the sheriff’s deed for the premises sued for, and purchased under said execution.</p> <p>The defendant objected to the reading of this deed,, and showed that an execution was issued on the 5th of March, 1839, on the affirmed judgment against Rain, Robb and Johnson, which was received by the sheriff of Mobile county on the 11th of the same month, and on the 23d levied on fifteen head of horses and two coaches, and other property, as the property of Rain, for which a forthcoming bond was taken from Rain, with one Maxwell as security; this was returned “ forfeited,” with the execution. After the return of this execution, another was sued out against Rain, Maxwell, Robb, and Johnson, on the same day as that under which the sale was made of the premises sued for, and was indorsed that it was sued on a forthcoming bond, and therefore no security of any kind should be taken.</p> <p>The sheriff of Mobile returned to this execution that he had levied the same on the 19th April, 1839, on two slaves as the property of Johnson; that the same, on the 6th May, were claimed by one Walker, trustee of Mrs. Johnson, and the sale forbid; that the plaintiff was apprised by the sheriff that the slaves were claimed and indemnity required; and that this being refused the slaves were released.</p> <p>The Court sustained the objection to reading the deed, and the plaintiff excepted.</p> <p>insisted that the exclusion of the deed was erroneous, because, under the statute, [Digest, 159, 160,] the plaintiff is permitted to sue out two executions at the same time,to different counties. Having this right, the omission to insert the name of Maxwell, the security of Rain to the forthcoming bond, was at most an irregularity, which ought not to avoid the sale. [Boren v. McGehee, 6 Por. 432.] At all events the regularity of the sale cannot be collaterally impeached. [Campbell v. Wyman, 6 Porter, 219; University v. Keller, 1 Ala. Rep. N. S. 406.]</p> <p>contended that by the levy of the first fi. fa. on property sufficient to pay the debt, the judgment was discharged — a new security, provided by the statute, was given to the plaintiff, and the old securities discharged.</p> <p>Independent of this, the forthcoming bond having been returned forfeited, the judgment became merged, and no execution could properly issue on it. [Tucker’s Comm. 360, 361 ; 3 Rand. 490; Bondurant v. Buford, 1 Ala. Rep. N. S. 357; 2 Howard, 853; 5 Howard, 235, 677.]</p>

<p>Wkit of Error to the County Court of Tuscaloosa.</p> <p>The defendants in error brought an action of > assumpsit against the plaintiffs on a promissory note for the sum of one hundred and ninety-four dollars and seventy-five cents, dated the 20th December, 1838, and payable four months after date, at the Bank of the State of Alabama. The writ is returned executed on two of the defendants, to wit: James H. Dearing and Philip J. Sink; as to the other, Wiley J. Dearing, there is po return, but on the face of the process, as well as in the declaration, they are all described as copartners and merchants, trading under the style of Dearing, Sink & Co.</p> <p>Sink appeared and pleaded, non assumpsit, failure of consideration, payment and set-off James H. Dearing pleaded that he did not make or execute the note declared on, nor did he authorize any other person to make the same for him; which plea was duly verified by affidavit.</p> <p>A judgment by nil dicii is rendered against Sink and W. J. Dearing, for the amount of the note, with interest and costs, and execution therefor directed to issue. Immediately following which, and in continuation thereof, is a judgment rendered against James H. Dearing for the amount of the note, with interest and costs, on a demurrer to the plaintiff’s evidencé.</p> <p>The evidence demurred to is—</p> <p>1. The deposition of F. P. Betts, of New Jersey, who states ’ that he always understood that Dearing, Sink & Company were copartners in business. On the 17th day of September, 1S35, Dearing, Sink & Co. purchased of Smith & Wright a bill of goods, and gave in payment of the same their note due 31st August, 1836, for six hundred and sixty dollars and fifty cents. A part of that note has been paid, leaving a balance of one hundred and ninety-four dollars and seventy-five cents, due to Smith & Wright on the 20th April, 1839, for which balance Dearing, Sink & Co. gave their note, which is still unpaid. The note last given was signed by Mr. Sink, in Tuscaloosa, on the 20th day of December, 1S38, as near as the witness can recollect in the presence of Mr. Dearing.</p> <p>2. The plaintiffs’ counsel also testified that he had been informed by Mr. Sink, one of the defendants, that the note in question was signed by him, and that he several times promised to pay it. Witness had always understood that Dearing, Sink & Co. .yvere partners, but did not know whether there had been a dissolution of the firm. Mr. Dearing he had understood was a partner.</p> <p>3. The note declared, which'is as'follows:</p> <p>Tuscaloosa, 20th Dec. 1838.</p> <p>-$194 75</p> <p>Four months after'date, we promise to pay Smith'& Wright, or order, one hundred and'ninety-four 75-100 dollars, for valúe ’ received, negotiable and payable, at the State Bank of Alabama,"át Tuscaloosa, being a balance due us from the'old house of Dearing, Sink & Co. 'Due 20'|23 April, 1839. ,</p> <p>Deaking, SINK & Co.</p> <p>It appears from the bilfof exceptions in the'record, that the defendants below excepted to the reading of the deposition' adduced'by'the "plaintiffs, as well as the testimony of the p'láiátiffs’ counsel, and the promissory note, all of which was set out in the demurrer to evidence.</p> <p>The judgment entry it is true is joint against'all the defendants, but the damages áre severed. The correct practice is, where some of the defendants pléád and others do not, to assess the damages by the jury who tries the issues; there is an entry of a stay of judgment against the latter until the jury return their véfdict upon the issues. [Tidd’s Practice, 670-1.] Such is’the Efi-glish practice, but under our statute the clerk may assess damages against those not pleading where the cause of action is" a promissory note, &c. Here, although there is but one entry, yet executions may so issue as to recover á double satisfaction, viz: 'against W. J. Dearing and Sink, and also against J/H. Dearing. Such a judgment cannot be sustained.</p> <p>Genera] reputation is' inadmissible to establish the fact of partnership. ' [Carter, Hogan and' Plowman v. Douglass ,2 Ala. Rep. 499 ; McPherson y.' Rathbóne, 11 Wend. Rep.'96 ; Holliday' v.'McDougal, 20 Wend.'Rep. 81; 22 Wend. Rep. 264; Whitney v. Sterling, 14 John. Rep. 215; Gowan v. Jackson, 20 id. 176 ; Bryden v. Taylor, 2 H." & Johns. Rep. 396 ; Brown v. Crandall, 11 Conn. Rep. 92; Goddard v.' Pratt, 16 Pick. Rep. 412, 433.]</p> <p>The. evidence of the witnesses was insufficient, and the note was inadmissible. [Bailey on Bills, 492-3-4; Powell v. Brown, 3 Johns. Rep. 104; Chauvin v.Labarge, 1 Missouri Rep. 556; Clark v. Small, 6 Yerger. Rep. 418; McGregor, Darling & Curtis v. Cleaveland, 5 Wend. Rep. 475; Roberts v. Rowan & Co. 2 Harrington’s Rep. 314 ; Bell v. Rhea, Conner & Co, 1, Ala. Rep. N. S. 83; Lewis v. Post &. Main, id. 65; Mauldin v. Branch Bank, at Mobile, 2 id. 502.]</p> <p>He also cited Fowlks & Co. v. Baldwin, Kent & Co. 2 Ala. Rep 705; Catlin, Peoples & Co. v. Gilder’s ex’rs. 3 id.- 542 ; McCollum & Capel v. Hogan ex’r. &c. 1 Ala. Rep. N. S. 515; Towns & O’Brien v. Alford & Butler, 2 id. 378; Craddock v. Craddock, 3 Litt. Rep. 77.</p> <p>The judgment may be defective in point of form, yet as informality can’t prejudice any one, it is not reversible. [1 Porter’s Rep. 15; 3 id. 226; 4 id. 160; 1 Ala. Rep. 182.] ' •</p> <p>The service of process on either one of the co-partners, was, under our statute, equivalent to service on all; but if it were otherwise, the judgment would still be good, for it .expressly recites that W. J. Dearing and Sink, appeared and suffered judgment by nil (licit. [2 Ala. Rep. N. S. 705.] As to the pleas of Sink, the legal intendment is, that they were withdrawn. [3 Stew. Rep. 339 ; 8 Porter’s Rep. 469; 9 Porter, 145; 1 Ala. Rep. 515 ; 2 id. 337.]</p> <p>The note, without any proof of its genuineness, or legal obligation upon J. H. Dearing, was admissible. [1 Ala. Rep. 83; 3 id.]</p> <p>In respect to the deposition of Betts, it was admissible, so far as the matter was concerned, and the objection to the form of the interrogatories came too late. [1 Starkie Ev. 270 ; Pick. Rep. 310; 3 Binn. 130; 4 Conn. (2d series,) 275 ; 10 S. & R. Rep. 63 ; 18 Maine’s Rep. 128; 1 Penn. 305; 7 Greenl. Rep. 181; 4 Hen. & M. Rep. 88 ; 15 Pick. Rep. 56.]</p> <p>The demurrer to the evidence was properly overruled. The legal intendment is most strong against the party demurring. [7 Porter’s Rep. 540; 3 S. & R. Rep. 416 ; 1 Wheat. Rep. 179; .Carson v. State Bank at this term; 2 Porter’s Rep. 261;</p>

<p>Emtoit to the Circuit Court of Tuscaloosa.</p> <p>Trover, by the plaintiff against the defendant in error, for a slave.</p> <p>Upon the trial the plaintiff offered in evidence a deed of trust made by Samuel Miller and James G. Addison to secure the plaintiff as surety to a note payable in Bank, which deed contained the following clause:</p> <p>“ If said Andrew B. Brown, trustee, should fail or refuse, from absence or any other cause, to execute this trust, it shall be in the power of the said parties of the third part to appoint another trustee in his stead, who, when so appointed, shall be invested with all the duties, powers and privileges here given to said Brown.”</p> <p>The plaintiff, to establish a sale to him of the negro sued for under the deed, offered to prove that in consequence of the absence of the trustee named in the deed, the party of the third part had substituted by parol another person as trustee, who proceeded to act by taking a portion of the property into possession, on the first default, but delivered up the same on payment of the money for which the default was incurred, and upon a like failing further to act, the party of the third part then substituted by parol, another, by whom the sale of the negro was made pursuant to the deed.</p> <p>The Court ruled that the deed by its terms, only provided for the appointment of a second trustee upon the happening of the contingency contemplated by the deed, and that when, such appointment was made the power was exhausted, and that a further appointment could not be made — the Court further held that such appointment must be in writing, to which the plaintiff excepted. Judgment was rendered ior the defendant.</p> <p>The assignment of error brings to view the charge of the Court.</p> <p>cited 15 Johns. 207; 7 Dana, 246 ; 7 Johns. 9; 11 id. 529; 2 Stewart, 144; 4 Mimford, 351; 9 Dana, 380; 8 Porter, 303 ; Story on Agency, 137,159; Lewin on Trusts, 465.</p>

<p>1. In this State it is unlawful for an administrator to sell the personal estate of his intestate at private sale, and if such sale is made, it conveys no title to the purchaser.</p> <p>2. A bona fide purchaser from an administrator, cannot be deprived of his possession in the property sold, bv an execution in favor of a creditor against the administrator, to be levied of the goods and chattels of his intestate in his hands, when the execution issues after the sale, although the sale itself is illegal. Such • a sale, if accompanied with possession leaves nothing in the administrator but a mere right of action for the slave, and this is not the subject of levy or sale ; nor is the property itself in the possession of the purchaser subject to levy.</p>

The defendant in error declared against the plaintiffs in as-sumpsit, in the Circuit Court of Tuscaloosa.

EeRor to the Chancery Court at Mobile. This was a bill filed by Henry Hitchcock, in his life time, to foreclose two mortgages executed by the Mobile Steam Cotton Press and Building Company, on a lot of land in the city of Mobile.

<p>X. The defendant having answered the bill, but no testimony being taken, the parties agreed in writing, that the complainants were heirs, as they described themselves, and to submit the cause to the Chancellor at the approaching term of the Court — Held, that this was a hearing on bill and answer by consent, and the answer under the rule of practice was to be taken as true in all respects.</p> <p>2. Where an act of the Legislature authorized the building of a bridge by means of stock to be subscribed, and after stock to a certain amount was subscribed, authorized the proprietors of a Ferry at the same place to subscribe their interest in the ferry and landings at an amount designated ; if the owner of an interest in the ferry, &c., refuse to subscribe it, after the requisite amount of stock was taken, and the bridge is afterwards erected, his heirs cannot come in as stock holders, but will be concluded by the refusal of their ancestor.</p>

<p>1. The act of 1828, [Aik. Dig. 208, §5,] requiring deeds and conveyances of personal property to be recorded, applies to mortgages of personal property.</p> <p>2. Deeds conveying personal property may be admitted to record on the oath of one witness, where there is but one to the deed.</p> <p>3. The right of a mortgagor of slaves to the possession before default made may be sold under execution.</p> <p>4. Such default will not be presumed from the fact merely that one instalment- of the debt, to secure which the mortgage is made, is due.</p> <p>5. The possession of a mortgagor, when consistent with the decree, is not a badge of fraud — therefore, where a mortgage was made to secure the mortgagees as sureties on three notes falling due at different times, with power-to sell-at the happening of the first default, the mortgagees may permit the property- to remain in the possession of the mortgagor until the happening of-the last default.</p>

IN June, 1839, the defendants in error filed their bill in the Chancery Court at Mobile, for an injunction, and the settlement of the priority of certain deeds of trust, executed by Platt Stout, in which the parties were respectively interested. The record is voluminous, and it will be quite sufficient to the understanding of the points here considered, to make a condensed statement of the facts as they may be gathered from the bill, answers and report of the Master.

This was a qui tam action by the defendant against the plaintiff in error, for selling rope and bagging without inspection. The Court charged the jury, that if they found the defendant guilty under the third section of the act, on which the action is founded, their verdict should be for the plaintiff. That the repeal of this act by the last Legislature could not affect the plaintiff’s right — to which the defendant excepted.

Whit of Error to the Circuit Court of Talladega. This was an action of assumpsit by the defendant in error against the plaintiffs. The declaration contains six counts, to each of which there was a demurrer, which was sustained as to the fourth and overruled as to the others. The sufficiency of the third count alone is now drawn in question.

EkRoe to the Circuit Court of Tuscaloosa. Assumpsit by defendant in error against the pit! ror as acceptors of a bill of exchange for twenty-1 dred and twenty-nine dollars seventy-six cents, draw? by McCown, Hobson, Williams & Co. on the 13th March, 1839, at four months, in favor of Samuel B. Ewing. To a declaration in the usual form, the defendants plead— First — Non assumpsit. Second — That the bill of exchange sued on was not their act, or accepted by their authority.

WRIT of Error to the County Court of Mobile. This was a proceeding under the statute, by notice and motion against the Sheriff of Monroe and his sureties, for the failure of the former to return a writ of fieri facias, which had issued from the County Court of Mobile, and been placed in his hands, against the goods and chattels, lands and tenements, of Cornelius D. Tobin, L. J. Moore, Nathan Jenkins, and J. R. Moore, for the sum of $977 14-100, besides $17 06-100 costs.

<p>1. A father and.son join in a conveyance of slaves, the property of the son, to another son, with an understanding that the transferee should hold the slaves during his life, or until the children of the father come of age, and then to be divided among those children. The conveyance was made from the apprehension that . the creditors of the father, who had once owned the property, would sieze it;for his debts — Held, that if the slaves were not liable for the debts of the father, sucji an agreement, though it might be suspicious, would not necessarily be fraudulent.</p> <p>2. The administratrix of the transferee having divided the slaves according to the agreement, and delivered them to thosg antitied, a part of whom werejeft with •her to assist in gathering the crop, and which she afterwards refused to deliver, in an action against her for the recovery of the slaves — Held, that if the original agreement to divide the slaves was fraudulent, the division- made by her was void; but if the agreement was bona fide, the division was good, as she was -merely doing voluntarily what a Court of Chancery would have, compelled ,h.er to do.</p> <p>3. An administratrix cannot dispose, of the property of the estate by private sale, and such a sale, though for a full consideration, will be void as against heirs, dis-tributees and creditors.</p>

<p>1. An attachment cannot be sued out where the indebtedness of the defendant depends upon a contingency which may never happen : aliter, where the indebtedness is absolute, though the day of payment has not arrived.</p> <p>2. An attachment issued against the estate of Charles G. Miller, William J. Wright and Thomas R. Crews; the writ was indorsed thus — “ I do hereby authorize R. Thom, as my special deputy, to execute the within attachment. 10th February, 1841. M. E. Gary, sheriff, S. C.” “ Levied on four bags marked T. R. C., also twenty.one bags W. J. W., also fifteen bags marked C. G. Miller, as the property of the defendants. M. E. Gary, 8. S. C. by R. Thorn, D. S.” Held, 1. That the Supreme Court must judicially know that Mathias E. Gary was sheriff of Sumter, and that the letters “S. C.” are intended to designate that county. 2. That the appointment of the special deputy was regular ; and, 3. That the return sufficiently shewed that the property levied on was the defendants.</p> <p>3. Where an attachment against a non-resident debtor was continued in Court for more than six months after its return, it cannot be objected to a judgment rendered thereon, that publication of its pendency was not made.</p> <p>4. It is no objection to a declaration in a suit commenced by attachment, that it charges the defendant in custody, instead of stating that his estate was attached.</p>

Samuel Poweiis was arrested in December, 1841, for. an of-fence against the State, and taken before John Stringer, then acting as a Justice of the Peace for Mobile cppnty, who recognized him with the plaintiffs in error as his sureties, to appear at the term of the Circuit Court of that county, to be holden in February, 1842.

The defendant in error, as the indorsee of a promissory note made by Thomas J. Ewing, brought an action of assumpsit in the Circuit Court of Talladega, against the plaintiff, his immediate indorser.

<p>This was a suggestion in the county Court of Sumter, against the sheriff of that County, alledging that, with due diligence, the amount of an execution issued from that Court and returned by him unsatisfied, could have been made.</p> <p>The cause was submitted to the Court on facts agreed by the parties. From the case agreed, it appears that on the 7th of March 1840, a writ of fieri facias for the sum of seventeen hundred and sixteen dollars and forty cents, besides costs, was issued from the County Court of Sumter, and placed in the hands of the defendant, as sheriff — that the fi. fa. was at the suit of the plaintiffs against Edward B. Colgin and Washing-iogton Dunn, and returnable on the second Monday in July next after its issuance. It was admitted that the sheriff, by the return term of the execution could, with due diligence, have made the money thereon, and that he had entirely failed to do so.</p> <p>. It was further admitted, that Edward B. Colgin, on the 10th ' February, 1841, paid the amount of the judgment on which the execution issued, with interest thereon, (but not the costs of suit,) to the plaintiffs in Mobile, who gave a receipt to the successor of the defendant, the present sheriff of Sumter; and that the suggestion in this cause was made on the 12th February, 1841.</p> <p>On these facts the County Court rendered a judgment in favor of the defendant; to revise which the plaintiffs have sued a writ of error to this Court.</p>

Eiuton to the Circuit Court of Talladega. This was a motion by the plaintiff against the defendant,. ■sheriff of Talladega, for failing to pay over money on an execution against one Chandler and William H. Moore. The defendant in error having realized a sum of money by the sale of some lands of Moore, by his return on several exer cutio ns, brought the money into Court, in discharge of the eldest liens, and this motion was made for the purpose of ascertaining that fact.

<p>1. The statute which exempts certain property from execution for the benefit of every family in this State, does not cover the property of one who has a family in another State, although he is here accompanied by a son, not shown to be de. pendent upon him.</p>

<p>* Writ of Error to the Orphans’ Court of St. Clair.</p>

EkeoR to the Chancery Court at Camden. This bill was filed by the defendant in error to foreclose a mortgage executed on real estate, to secure the payment of seven thousand five hundred dollars, secured by a bond for that amount, with the following condition: The condition of the said obligation is such, that whereas, the said Archibald K. Smith, is indebted to the Alabama Life Insurance and Trust Company in the said sum of seven thousand five hundred dollars, which sum is…

<p>Whit of Error to the Circuit Court of Lowndes county.</p> <p>In the writ and declaration Brazier is named as the plaintiff, but in the progress of the cause he filed an affidavit, stating that it was commenced and carried on without his knowledge or consent, and he asked that it might be dismissed, and the attorney of record required to give security for costs.</p> <p>The Court then ordered that the plaintiff of record should be indemnified by the person claiming the beneficial interest, by bond, with surety, conditioned to pay the plaintiff such costs as he might be compelled to pay. The order, as entered on the minutes, is silent with respect to the time when the indemnity should be given, but was really limited to four months, as appears by an entry, nunc pro tunc, made after the cause was dismissed. At the next term after the order for indemnity, the suit was dismissed, although the person interested then offered to give the requisite security.</p> <p>The writ of error is not on file, but the assignment of error is entitled in the names of the parties to the suit, and the judgment of the Circuit Court dismissing the cause is sought to be reversed, on the ground that the security was offered within the time allowed by the order actually entered, and that it was erroneous to enter the amended order after the case was ended.</p>

<p>Whit of Error to the County Court of Barbour.</p> <p>The defendant in error, for the use of Seaborn Lewis, declared against the plaintiff in assumpsit, on a promissory rnote, made by the latter, and payable to Seaborn Lewis, or bearer. It is not alledged that the legal interest in the note has in any manner passed from the payee, or become vested in the plaintiff below. A judgment by default was rendered against the defendant for the amount of the note with interest and costs. ,</p>

<p>1. An execution may be superseded if an unjust or improper use is attempted to be made of it, although the execution be authorized by the judgment.</p> <p>2. Where two judgments exist for the same debt, the payment of one is a satisfac. tion of both ; and the attempt to coerce the payment afterwards, by execution is an abuse of the process of the Court, which may be arrested by supersedeas.</p>

<p>Weit of Error to the Circuit Court of Conecuh county.</p> <p>This is an action of assumpsit on a promissory note, payable to John Crosby &Co. and the suit was by John, Joseph C. and William Crosby, as co-partners, using the name of John Crosby & Co. Upon the trial of the case, on the general issue, no other evidence than the note was given, and the defendants insisted the partnership ought to be shown, and requested the Court so to instruct the jury. This was refused and excepted to. It is now assigned by the defendant as error.</p> <p>cited Bell v. Rhea, Conner & Co. 1 Ala. Rep. N. S. 83.</p> <p>insisted that the case was controlled by the act of 1839, [Meek’s Sup. 113, §5,] and that the case cited by the plaintiff was a decision upon a declaration drawn before the passage of the act referred to.</p>

Whit of Error to the Circuit .Court of Mobile. This was an action of ejectment against the plaintiff in error to recover the possession of a tract of land situate in the city of Mobile, and described in his declaration as follows, viz:— Beginning at a point in the county of Mobile, on the sectional line between section number twenty-seven and thirty-four, and twenty-six and thirty-five, township number four, south, range number one, west, and distant eight chains and…

<p>1. A plaintiff in ejectment must recover on the strength of his own title, and if that is not sufficient to enable him to maintain the action, it is unimportant what the title of the defendant is.</p> <p>2. When the plaintiff in ejectment claims by a sale under execution, it is not necessary that he should deduce a regular chain of title subsisting in the defendant in execution ; it is sufficient if he shows a legal title in the defendant at the time of the rendition of the judgment.</p> <p>3. The rule that this Court will not reverse a judgment though the Court below may have erred in its charge to the jury, where it is clear from the entirerecord that the plaintiff cannot recover, is confined to those cases where the matter relied on to affirm the judgment, notwithstanding the error of the Court, is uncon-troverted.</p>

Whit of Error to the Circuit Court of Wilcox county. This is an action of assumpsit against Cook, as the administrator de bonis non of Jesse W. Norwood, deceased, on several notes described in the declaration, as made by. the firm of Garrison, Ryan & Co. of which firm Norwood is averred to have been a member.

Writ of error to the Circuit Court of Mobile. This was a motion by the plaintiffs in error, at the Spring term of the Circuit Court in 1842, to set aside a judgment by default, rendered at the preceding term, in an action of ejectment, in which Doe ex dem Kennedy’s executors was plaintiff, and Isaac H. Lewis and Norman Otis, were tenants in possession.

<p>ERROR to the County Court of Russell.</p> <p>This action was commenced in the Court below by original attachment. The defendant at the appearance term pleaded in abatement, “that said plaintiff ought not to have and maintain the said attachment against the defendant, for this, to wit: that the said plaintiff is and was, at the time of suing out the same, a resident of the State of Georgia, of which the defendant was at said time, and is also a resident, and that said plaintiff omitted to state in his said affidavit for suing out said attachment, that the defendant had not sufficient property in the State of his residence, within the knowledge or belief of plaintiff to satisfy said debt, which said averment is required by law to be made in the affidavit of a party suing out an attachment, when and where both the plaintiff and defendant reside out of the limits of the State of Alabama. Wherefore the defendant prays the judgment of this Court, whether the said plaintiff can have and maintain his said action against this defendant,” &c. The plea was verified by affidavit.</p> <p>To this plea the plaintiff demurred, and the Court overruled the demurrer. The plaintiff then asked leave to reply to the plea and traverse the facts therein contained, but the Court refused to permit the plaintiff to reply, and dismissed the attachment, notwithstanding the plaintiff objected to trying an issue at the return term.</p> <p>From this judgment this writ is prosecuted by the plaintiff, ^who assigns for error—</p> <p>1. In its judgment on the demurrer to the plea.</p> <p>2. In rendering judgment for the defendant.</p> <p>contended that the plea was bad, because it began and concluded in bar, and contained matter in abalement, and that oyer should have been craved of the affidavit. [2 Porter, 249 ; 9 id. 195 ; 1 Chitty’s Pleading, 496; Gould’s Pleading, 29, 293.]</p>

Wkit of Error to the Circuit Court of Fayette. This action is upon two twenty dollar notes, against the defendant, as a partner of the Real Estate Bank of Caledonia, Mississippi. It was commenced before a Justice of the Peace, and was carried to the Circuit Court by appeal.

The defendants were indicted in the Circuit Court of Cherokee, for a conspiracy; they were all tried on the plea of “ not guilty,” and a verdict was returned as follows: “We, the jury, find the defendants guilty, and assess their fine to twenty dollars each.” A motion was made to arrest the judgment, on the grounds as alledged, that the indictment did not charge an offence known to the law; and was insufficient.

<p>1. The surety of a County Treasurer, on his official bond, is bound for the monies of the county in the hands of the Treasurer, at the time of the execution of the bond, although a previous bond then existed with different sureties. But if the money had been wasted by the Treasurer, or appropriated to his own use, before the execution of the last bond, the sureties on the first bond would alone be responsible.</p> <p>S. The surety of a County Treasurer, to his official bond, is bound by those acts of the Treasurer which by law, as Treasurer, he is required to perform — the annual settlements, therefore, of the County Treasurer, and the statement to his successor in office of the amount of public money in his hands, being acts which by law, as treasurer, he was required to perform, are evidence against his surety in an action against him on the official bond of the Treasurer.</p>

<p>1. When a creditor receives a note from his debtor with other persons as security, and the notéis made payable to a Bank, under the expectation that it will be discounted, the securities are not discharged by the refusal of the Bank to discount it, but the creditor may sue in the name of the Bank, or transfer the note to another, who may in like manner use the name of the Bank to collect the money.</p>

<p>1. Where a contract was entered into for the performance of professional services, the value of which was to be ascertained by arbitration, if the parties could not agree; if the party for whom they are rendered refuses to ha ve them arbitrated, assumpsit will lie for a quantum meruit.</p> <p>2. Where professional gentlemen agree with their client, that as it could not be - known what business they would be required to perform, they wottld receive for their services what any gentleman of the bar would consider reasonable, this is an agreement to arbitrate, and will not bar an action.</p> <p>3. An agreement by counsel to attend to the litigated business of a Bank, pending and to be brought before the Courts, to the end of the then current year, does not oblige the counsel to attend to such as are undetermined at the end of the year.</p> <p>4. The act of 1839, in prescribing the salary '"of the Attorneys of the State Bank and its branches, applies alone to the regular Attorney in the different Banks, who is elected by the Directors, and does not inhibit the Banks from the employ, ment of such other professional assistance as their interest may require.</p>

The bill was filed by the plaintiffs in error, and alledges that they purchased of the defendant, Brown, the sixteenth section, in township nineteen, range six, east — the north east quarter of the north east quarter and the south east quarter of the north east quarter of section seventeen, in the same township and range, all in the Coosa land district, at the price of six thousand dollars, to be paid in three payments, and executed to him three notes for two thousand…

<p>Wkit of Error to the County Court of Pickens.</p> <p>The transcript certified to this Court with the writ of error, states the proceedings of the County Court with respect to this case in the following manner:</p> <p>“On the final settlement with Robert Jemison, Jr. and Charles Stewart, as executors of the last will and testament of W m. Booker, deceased, Aurelius N. Jones and Wm. F. Connor, executors of the last will and testament of Sarah N. Booker, being present. And the matters of the settlement having been referred to George B. Saunders, as auditor, and the accounts and vouchers examined by the Court, it appears that the debts against the estate and legacies have been satisfied, as described by the will of the said William N. Booker, deceased, by his said executors, as appears by the account current and vouchers filed. And it further appears that there is in the hands of the said Aurelius N. Jones and William F. Connor, as executors of the last will and testameut of Saráh N. Booker, deceased, the sum of $4,101, due to the said Robert Jemison, Jr. and Charles Stewart, as guardians of the estate of Edith M. Booker, a minor, and legatee in the will of the said William N. Booker, deceased. Ordered, therefore, that Robert Jemison, Jr. and Chas. Stewart, as guardians of Edith M. Booker, recover of Aurelius N. Jones and William F. Connor, executors of the last will and testament of Sarah N. Booker, the said sum of $4101 61, It further appears that the said Aurelius N. Jones and William F. Connor, are indebted to the said Robert Jemison Jr. and Chas,. Stewart in the sum of $720 37, for an allowance made by this Court to compensate them for their services as executors aforesaid. Therefore, ordered, and decreed that the said Robert Jemison, Jr. and Charles Stewart, recover of the said Jones and Connor, executors of Sarah N. Booker, deceased, the said sum of $720 37. It further appears that the said Jones and Con-nor, executors as aforesaid, are indebted to the said Jemison and Stewart, executors as aforesaid, in the sum of $1,614 77, for money by them advanced of their own funds, in the management of the estate of the said William N. Booker, deceased, as executors. Therefore, ordered that the said Jemison and Stewart, recover of the said Jones and Connor, executors of the last will and testament of Sarah N. Booker, the aforesaid sum of $1,614 77. Ordered that executions issue for the aforesaid several sums of money.</p> <p>No further proceedings whatever appear in the record of the cause.</p> <p>To reverse this judgment the defendants thereto now prosecute their writ of error, and assign that the County Court erred in making it.</p>

■ Whit of Error to the Orphans Court of Pickens. The defendant in error propounded for probate, to the Orphans Court, a paper purporting to be the last will and testament of Rachel Windham, deceased; in which he is designated an executor.

EhRoe to the Circuit Court of Greene. This was an action of assumpsit, by the plaintiff in error as indorsee, against the defendant in error as indorser of a promissory note made by Joseph B. Earle, for twenty-one thousand seven hundred and eighty-one dollars and seventy-seven cents.

<p>1. Where a bill single is described in the declaration, as made and delivered to the plaintiff, by the name and description of J. D. F. agent for G. A. K. or bear, er, the suit is properly brought, and the words agent, &c. will be considered merely as descriptio persona.</p>

The defendant was indicted for burglary, at a term of the Circuit Court of Mobile, commencing on the sixth Monday after the fourth Monday in September, 1842. The cause was tried on the plea of not guilty, and certain questions of law reserved, which are referred to this Court as novel and difficult.

Ekkor to the Circuit Court of Dallas. Assumpsit by the defendant against the plaintiff in error. On the trial it appeared that the action was brought by the defendant for services rendered to the daughter-in-law of the plaintiff, at her request.

Weit of Error to the Circuit Court of Madison. This was a motion to quash a writ of fi. fa. sued out by Martin, Pleasants & Co. against Harrell and Jarman, on the 23d September, 1841, and made returnable to the Court to be held on the 4th Monday of April then next.

Wsit of Error to the Circuit Court of Mobile. Held: that a mere custom inde-pendant of a by-law, would give a lien. [8 Serg. and R. Rep. 73.] Public policy, instead of being thwarted by the by-law* in question, is really promoted, as it sustains the Company, by affording increased means to pay its liabilities.

This action of assumpsit was brought in the Court below, by the plaintiffs in error, executor and executrix of Uriah Grigsby, deceased, against the defendant, as survivor of the firm of David Cooper & Brothers, on two promissory notes made by them to Uriah Grigsby, for the payment of eight hundred and thirty-three dollars thirty-three cents, each.

<p>Wext of Error to the Circuit Court of Chambers.</p> <p>Claim, under the statute, to a slave levied on at the suit of ■Traylor by an execution against John Davis.</p> <p>, The facts, so far as they are connected with the only matter ■¡decided by the Court, are these :</p> <p>Davis died on the 8th of October, 1840, no execution having then issued. On the 23d of the same month, this execution •was issued, and levied on the 2d of November of the same .year on the slave in controversy. Blount and Stanley took ■out administration on Davis’ estate and interposed their claim on .the 1st March, 1841.</p> <p>At the trial the claimants made title in two ways:</p> <p>. 1. As the mortgagees of the slave by deed from Davis, to ¡secure the payment of a note falling due 1st March, 1841.</p> <p>2. Under the administration.</p> <p>It was shown that they had returned an inventory in which this slave, was described as Davis’ property, but subject to their mortgage.</p> <p>Under this state of proof, they requested the Court to instruct the jury—</p> <p>1. That if Davis was dead when the execution issued, it was void.</p> <p>: 2. That, under the circumstances there was not such a possession in the mortgagor as was liable to sale under execution; and in either event, a verdict should be rendered in their favor.</p> <p>•. These charges the Court refused., and in lieu of them the jury was instructed—</p> <p>1. That the claimants could, not question the regularity or validity of the execution.</p> <p>2. That if the claimants held possession of the slave, not as mortgagees, but as administrators of Davis, their possession ■was equivalent to the possession by Davis, and created such an equity of redemption as was liable to the execution.</p> <p>This was excepted to and is now assigned as error.</p>

Wkit of Error to the Circuit Court of Butler. The defendant in error brought an action of detinue against the plaintiff and Unity Pearce, for the recovery of three slaves.

<p>1. It is not necessary to enter a formal discontinuance as to those on whom process is not served; by taking judgment against the others, the cause is, in law and in fact, discontinued as to them.</p> <p>2. Where the undertaking of sureties was for the appearance of their principal to answer the charge of the State against him, on his failing to appear, the recognizance was forfeited, and it was not necessary to call the sureties to produce their principal.</p> <p>3. A judgment rendered on a forfeited recognizance must follow the condition ; if that is joint the judgment must be joint, also.</p> <p>4. A judgment cannot be rendered against the sureties toa recognizance for a larger sum than the penaly.</p>

Writ of Error to the Circuit Court of Perry. • Assumpsit by Quarles against Glover as administrator de bonis non of the estate of Grigsby, on his intestate’s indorsement of a promissory note. At the trial the defendant gave evidence that the plaintiff had sued out a ca. sa. on his judgment, against the maker, and after arrest had directed him to be discharged.

This was an action of ejectment brought by the defendant in error, in the Circuit Court of Tallapoosa. The usual consent rule being entered into, the cause was tried on the plea of not guilty. On the trial, the defendant below excepted' to the ruling of the Court.

Assumpsit commenced by original attachment by the plaintiff in error, against James H. Caldwell. Process of garnishment issued against Samuel W. Caldwell and Williamson A. Glover.

<p>1. The 8th section of the attachment act of 1837, does not warrant the suing out of an ancillary attachment in an action of detinue. This process is authorized in such actions only as can be commenced by original attachment.</p>

Weit of error to the Circuit Court of Mobile. This was a motion to quash an execution upon the following state of facts, which appear by bill of exceptions. It was admitted that a judgment was rendered against the defendant in error, as the surviving partner of McRae & Lang, for a partnership debt; that an execution was issued thereon and returned “no property found” as to part.

Erkoh to the Chancery Court of Camden. This was a bill filed by the plaintiff in error, and alledges that he became some years since the surety of Lucy M Howell, as administratrix with the will annexed of Caleb Howell, deceased — that she afterwards intermarried with one Joseph Arrington, who thereby, in right of his wife, became administrator of the estate, and that for mismanagement of the estate, the letters of administration were revoked, and Arrington and wife being…

WRIT of error to the Circuit Court of Autauga. Claim of property under the statute. The proceedings which appear in the transcript of the record, are— 1. An execution at the suit of E. S. Dargan against Dixon Hall, with the return of the sheriff of a levy on certain slaves thereon named, and the further return that the same were claimed by William S. Hall, and bond given to try the right. 2.

Wkit of error to the Circuit Court of Mobile. This was an action of covenant at the suit of the defendants mirror against the plaintiff.

Eiuioit to the Circuit Court of Mobile. Trespass by the plaintiff against the defendant in error. The defendant, sheriff of Mobile county, pleaded not guilty, and also a justification that he seized the goods by virtue of legal process, as the property of one Casper Albert, and that they were his property.

Wkit of Error to the Court of Chancery for the First District of the Southern Division. The complainant seeks a specific performance from the defendant of a contract, for the sale of certain real estate, in the City of Mobile ; and in the event, the defendant is unable to give the title contracted for, that the sum of five hundred dollars paid on the contract may be refunded.

Writ of Error to the Court of Chancery sitting at Mobile. The defendants interror filed their bill for a foreclosure of a mortgage, which had been executed bn real estate, situate in the City of Mobile, for the payment of a debt' of about four thousand dollars, owing to them by tlie5 plaintiff McMillan.

The bill which was exhibited by the plaintiffs in error, charges .that the defendants in error obtained a judgment against one John Lunsford, upon which he was desirous to prosecute ?i writ of error to the Supreme Court, and obtain a supersedeas -thereon, and applied to the plaintiffs in error to become .his sureties to the writ of error bond.

Whit of Error from the Court of Chancery for the Second District of the Southern Division. The case made by the bill is as follows: On the 3d September, 1834, Bissent, the defendant, entered at the Land Office at Montgomery, the west half of the north-east quarter of section nineteen, township ten, range twenty-eight.

Wkit of Error to the Court of Chancery sitting at Mobile. In the cause out of which this case arises, three bills have been filed; the first at the suit of Jos.Cowperthwaite, Thos. Held: claim--ing under a purchase made at a sale by the sheriff of Mobile, under an execution issued on a judgment of the Circuit Court of that county, which had been affirmed by the Supreme Court of the State, in which ffm. McGehee, use, &c., was plaintiff, and Henry Hitchcock defendant.

EkRou to the Circuit Court of Mobile. In this case, which was commenced by original attachment, by the defendant in error, against the firm of Green & Co., the plaintiff in error Was summoned as garnishee, the direction being to 'summon the President and Cashier of the Bank.

<p>Wsit of Error to the County Court of Sumter County.</p> <p>Caldwell sued out an attachment before a Justice of the Peace of Greene County, and the writ was made returnable to the County Court of Sumter County. On its return, the attachment was quashed by the County Court, on the ground that the Justice issuing it had no jurisdiction.</p> <p>This is now assigned as error.</p> <p>argued that the authority is general in its terms, and being so- there is no more reason to restrict a Justice of the Peace to his comity, than there is to restrict a Judge of the County or Circuit Court. [Dig. 37, §2.]</p>