Volume 4 — Porter's Alabama Reports (1834–1839)

In this case, a bill was Med in Chancery by John C. Clark against Marshall Clark, for an account, under a copartnership agreement. These were theYacts' disclosed by the record.

Peter Simmons, by warrant from a justice of the peace of Jackson county, sued Lewis Clark and Oliver J. Lindsay, as makers of a note under seal: and judgment was given against the defendants; from which they took an appeal to the Circuit Court. On the trial in the Circuit Court, judgment was also given against the defendants; and they removed the cause into this Court by -writ of error.

This was an action of slander, in St. Clair Circuit Court. The plaintiff, William Holloway, declared against Joel Chandler, in seven counts ; to which, a general demurrer was filed, and overruled: and under the plea of not guilty, a verdict was entered for the plaintiff.

This was a bill in Chancery, filed in Lawrence Circuit Court, by Jacob K. Swoope against Joseph Trotter. The bill charged, that on, or about the-- day of October, eighteen hundred and twenty-four, orator and Joseph Trotter became the sureties of one David J. Poore, in a bond, given by the latter as the guardian of William W. and Thomas S. Logwood, infants.

William M. Kennedy declared in trespass against John Derrick and others, for forcibly taking from the possession of the plaintiff certain slaves: and under the plea of not guilty, as verdict was entered for the plaintiff. A bill of exceptions under which, the cause was removed to this Court, disclosed many facts — many of them not material to a history of it as decided, or essential to a proper understanding of its features.

Nelson Robinson, as executor of the last will and testament of William Robinson, filed a bill in Chancery against John F. Forrest and his wife, Mary Ann Forrest, and James Robinson, trustee, for the purpose of satisfying a bond, signed by the defendants, out of the separate estate of the said Mary Ann.

In error, on a decree of the Circuit Court of Madison, exercising Chancery jurisdiction. The bill tn this case, was fled by Samuel Pyke against Jesse Searcy, and Mary his wife, George Fe.irn, and Elizabeth his wife, John C. Burruss, heirs of Charles Burruss, deceased, Jesse Searcy, administrator of Charles Burruss, deceased, and Thomas Fearn and Henry Cook.

This was trespass, vi et armis, against William Arnett, Charles Manor, Griffin Reed, and Levi Todd, for taking a wagon. The defendants plead not guilty ; and on that plea, verdict and judgment were rendered for them. On the trial below, the plaintiff offered in evi-. dence, the deposition of Joseph Surber, duly and regularly taken, to prove that he had sold and delivered to the plaintiff, the wagon, for the taking which the action was brought.

This Was a hill in Chancery, in Lauderdale Circuit Court, and was fded by John Webb against Gabriel Bumpass.

Writ of error to the Circuit Court of Lauderdale, on a decree in Chancery. The bill in this case was filed by Ezra Webb, Charles Bradford, and Joseph L. B. Smith.

This was a hill in Chancery, filed in Lawrence Circuit Court.

This case originated in an action of deht? prosecut■ed in the Circuit Court of Madison County, in the name of Samuel B. Moore, for the use of Francis E. Rives, against Stephen McBroom, William Derrick, Robert Walton, and Lewis Moore; and was founded upon the official bond of William McBroom, as .sheriff of Madison County, and of which the defendants were the sureties.

In this case, Charles, a slave, was indicted in the Circuit Court of Madison, at the October term, eighteen hundred and thirty-five, thereof, for the murder of Willis Sanford : and on the twenty-ninth day of October, a day of that term, by a jury, found guilty of the offence.

Flora, a slave, was indicted in.Madison Circuit Court for murder. The indictment charged, that Flora, a slave, the property of Allen and Richard Sanford, administrators of the estate of Willis Sanford, committed the murder upon the body of Willis Sanford; and she was found guilty. The case was removed into this Court by writ of error, upon exceptions taken to the opinion' of the Court in the progress of the trial.

This was an action upon the case, by Sawyer against Ballew, in the Circuit Court of Morgan : and the plaintiff declared against the defefendant for that, theretofore in a proceeding for forcible and unlawful detainer, he had obtained judgment against one Larkin R. Sawyer, before a justice of the peace, upon which execution had issued against the said Larkin, and under which he had been arrested.

This •was a writ of error to the County Court of Madison, upon • a judgment rendered by default against George W. Welch, administrator of the estate of Samuel D. Sherrell, deceased; which judgment was founded upon an application of William. Walker and wife.

David B. Johnson, survivor, declared against Horace Green and Robert W. Green, as late merchants and copartners, trading under the firm and style of H. & R. W. Green, — -in assumpsit, for work and labor. The defendants plead— 1. Non-assumpsit. 2. Another action for same cause, pending. And on these pleas a verdict' was rendered for the defendants.

This case arose upon a bill in Chancery, filed by William Ely, Commissioner of the funds of the Arne-rican Deaf and Dumb Asylum, at Hartford, Connecticut, against James W. M’ Clung, the surety of one Jesse D. Noble; the object of which was to foreclose a mortgage.

This was an action of trespass to try titles, in the Circuit Court of Madison; and was prosecuted by the next friend of the heirs of James M’Cartney, against William M. Kennedy and Elisha Moreland, for the recovery of a tract of land, known and describe ed as the reservation of Conaleskee, or Challenge, a Cherokee Indian.

Margaret A. Peck and John W. Peck, by their next friend, Darwin, sued out a writ in trespass on the case, against “ Benjamin Sherrod, President, and David Hubbard, James B. Wallace, John Gregg’, Jack Shackleford, David S. Goodloe, James Elliott, Micajah Tarver, Branham Merrill, John L. McRea, Henry W. Rhodes, James T. Sykes, and James Fen-nell, directors, being the president and directors of the Tuscumbia, Courtland and Decatur Rail Road Company.” The cause of action was for…

In this case, Beeson brought his action of trespass, against Roberts, |n the Circuit Court of Blount, for wrongfully taking goods, the property of the plaintiff. To the action the defendant plead— First — Not guilty. Secondly — A special plea, justifying a sheriff of the county, under a writ of fieri facias, by virtue of which a levy had been' made, and which was the trespass complained of: to which plea there were replication and issue.

This was an action of trespass on the case, by Hill, upon the following'agreement, viz : “Alabama, Montgomery.

In this case an application was made by the plaintiff in error, to the judge of the County Court of Lowndes county, and the commisioners of revenue and roads, for a license to establish a ferry.— The application was resisted by Hall, but was eventually granted by the order of the'Court. Upon this order the clerk of -the County Court issued a a writ of error, returnable to the.

This was a notice, issued by the president of the Tombeckee Bank, to Stephen.Chandler, Joseph B. Earle, John Duncan and Edward B. Byrd, lately merchants in company, trading under the firm and style of Edward R. Byrd & Co.; and apprising them, that at the ensuing Spring term, eighteen hundred and twenty-seven of the Circuit Court of Washington county, the said Bank would move for judgment and award of execution against them, for the amount of a promissory note, made by the…

John C. Cabiness and Ransom Covy, were indicted in the Circuit Court of Tuskaloosa county, for keeping a gaming house.

This was a proceeding by scire facias, issued in the name of James Leonard against John S. Glid-den ; and was founded upon a bail bond, executed by the said Glidden, as the bail of one Walker.

In this case, an action of trespass to try titles was brought by the heirs of Archibald Campbell, deceased, against the plaintiff id error, for the recovery of three lots pf land, lying, situate and being in the town of Montgomery, and known as lots numbered 18, 10 and 20.

<p> As to orders for the payment of money, not aufhoris* ■ ing an action. </p> <p>1. A mere request or authority in writing to an attorney, to pay money out of a particular fund, when collected, can not be made the foundation of an action against the drawer.</p> <p>2. Such an instrument is not embraced within the statute of 1807,* authorising suit by an assignee.</p>

In this case, Houston & Gillespie, the assignees of Ann Rossell, filed their bill in Chancery, to compel the payment of a promissory note, bearing the singar-tures of Isaac and Mary Sadler — out of a… Held: under marriage articles. The answer of the defendants admitted, that the note had been signed by Isaac Sadler, with his own and wife’s name, and that the consideration thereof was for the benefit of the wife.

This was an action of trespass on the case, for the recovery of damages, for the loss of cotton, undertaken- to be carried upon a steam-boat; and was prosecuted by the plaintiffs in error, against the defendants in Mobile Circuit Court. Upon the plea of not guilty, a verdict was rendered for the defendants; and by bill of exceptions and writ of error, the cause was removed here.

This action was trespass on the case, by Simpson, against Wiley, M’Guire and Henry, for the recovery of damages, for publication of a libel, in a certain paper, of which the defendants were charged to. be proprietors and editors; and whereby ’the plaintiff was charged as having violated his duty, as a post master.

Samuel fu. Johsa, jr. decís?.red in Mobile Circuit Court, against Samuel EL GLutow, as indorser of a bill of exchange. The defendant relied upon non-assrauRii, n:i;i the plea of the statute of limitations; and under these pleas, the jury found a verdict for the clofenuant.

This action was assumpsit upon a biil of exchange,by Clements, the endorsee, against Moore, the drawee.-The biil was protested for non-payment; and the defendant plead, non-assumpsit; paymentand accord and satisfaction ; and a verdict and a judgment were had for the plaintiff. On the trial below, the defendant requested the Court to charge the jury— First — That the damages, in the event of the plaintiff's recovery, could only be assessed at five per centum.

In this case, Henry Hitchcock, who sued for the use of Thadeus Sanford, exhibited his complaint for unlawful detainer, against the plaintiff in error, before a justice of the peace, of Mobile county, and obtained a judgment upon verdict of a Jury.

This was an action of debt, by Randle against Gayle, in Dallas County Court, upon a note under seal, signed by Stephen Miller, Matt. Gayle, and James Goodwin. The pleas were entered as follow— “ The defendant pleads — first, payment. Secondly, that he was only security, and requested suit brought against Miller, principal, whe has since become insolvent, and absconded.

In this case, Henry W. Taylor, prosecuted an action of trespass on the case, in Mobile Circuit Court, against Nathaniel F. Williams and Henry Hitchcock, for the recovery of the value of a negro man, slave, who had been hired on board a steam-boat, of which the defendants were charged to be owners; and which slave had been killed, as was alleged, through the carelessness and mismanagement of the agents and servants of the defendants.

This was a bill in Chancery in Baldwin Circuit Court; and it was filed by William Wilkins against Benjamin S. Bromley, for the purpose of foreclosing a mortgage. The bill recited the mortgage, and prayed a sale of the mortgaged premises for the satisfaction of the plaintiffs’ claim. Among other allegations, the bill also averred, that one Charles Hall, had purchased the premises mortgaged, from the mortgagor, with notice; and made him also a defendant.

In these cases, writs of fieri facias, were issued from the County Court of Tuskaloosa county, to the sheriff of Montgomery county, commanding the levy of a debt, recovered by the Bank of the State of Alabama, against William D. Bynum and Alexam der McDade. These executions were accordingly levied upon certain property, consisting mostly of slaves, and which was claimed by Charles S. Lucas, Thomas J. Faison, James McDade, and William McDade.

A motion wtts rinde, in this case, t > affirm upon certificate, n > transcript beingfiled. The writ of error was filed in the case, and a transcript appended thereto, which hitter was not s:gned or attested by the Clerk of the Court, to which the writ of error issued.

This case was an action of debt, by Bridges, Judge of the County Court of Wilcox, for the use of Rodgers, upon the bond of Botts, and another, given by Botts, as the keeper of a ferry.

In this case Allanson Saltmarsh exhibited a bill in Chancery, against Jesse Beene; which set forth that, on or about the first day of February A. D. eighteen-hundred .and thirty, orator agreed with defendant, in writing, that defendant, for the mutual benefit of the parties, should purchase a certain tract of land, known as the S. E. quarter of section of thirty-five, township sixteen, range nine ; that, in pursuance of said, agreement, on the said first day of February,…

This was a bill in Chancery, filed in i he Circuit Court of Talladega, by Joshua Lyon; and its object was to enforce the specific execution of a parol agreement for the sale of lands.

A motion was made, by Clark, in this ease, for the affirmance of the judgment rendered below, on the certificate of the clerk of the Circuit Court of Wilcox County.

moved to abate this suit, and asked for judgment of af-firmance against the sureties to the writ of error bond. And he shewed, by the minutes of Court, that at the last term, the death of the plaintiff in error, had been suggested; and that no personal representative had appeared.

By a bill of exceptions, it was shewn-’ — that the plaintiffs, to maintain the issue on their part, produced, and read in evidence a deed of trust bearing date the eighteenth day of March, eighteen hundred and twenty-five, between Stephen Chandler, and Rebecca, his wife, of the first part, John B. Hazard of the second part, and the President, Directors and Company of the Tombeckbee Bank; of the third part: which deed conveyed from Chandler and his wife, to John B. Hazard, in…

This case originated in proceedings, carried on in the Orphans’ Court of Clarke County, and removed thence, to the Circuit Court, by Garrard W. Creagh, an executor, against whom, with others, a decree of the Orphans’ Court had been rendered. From the record, the following facts appeared: On the seventh day of November, eighteen hundred and twenty-five, the will of Ira Portis, deceased, was admitted to probate, in the County Court of Clarke County.

This was an action commenced by the plaintiff' in 'error, in his capacity of Judge of the County Court of Dallas county, against Lunsford, and others, his sureties ; and was founded upon the bond of Lunsford, as an 'assessor and collector of taxes.

On a writ of error to the Circuit Court of Wilcox, The action in this case was upon a bill of exchange, by the indorsee, against the drawer. The bill was made negotiable and payable, at the Branch of the Bank of the State of Alabama at Mobile, for the sum of five hundred and ninety-five dollars, and was due at ninety days from its date, which was the (seventeenth day of December, eighteen hundred and thirty-three.

This was the case of a bill in equity, filed in the’ Circuit Court of Monroe County, in February eighteen hundred and twenty-seven, by James H. Draugh-on and Jane Edwards, against LafdnerC. French amcl Mary, his wife. The bill alleged, that Magnus Draughon of Monroe* County, died on the eighth day of September, eighteen hundred and twenty, intestate, leaving his widow, Mary Draughon, James H. Draughon, Robert-H. Draughon.

On a writ of error (o’ the Circuit Court of Autau-ga County.. The defendant in error brought Lis action of as-sumpsit, (as the County treasurer of Autauga,) in the Circuit Court of that County, against the plaintiff; and declared— First — For money had and received, for the use of •the County. Second — Upon an account stated.

In error, to a decree of the Circuit Court of Lowndes County, exercising Chancery jurisdiction. The original bill in this case, was filed by Richard II. Hays, Patrick W. Hays, and Robert S. Hatch-er.

By the record in this case, it appeared that the defendant in error, on the eighth day of March, eighteen hundred and thirty, was appointed a guardian of Lawrence Bass, by the Judge of the Orphans-Court of Dallas.

<p> As to practice in the Supreme Court. </p> <p>1. This Court will not set aside a judgment obtained on certffi-* cate, on motion to file a complete transcript of the record and proceedings in the case — ho return being made to a certiorari previously issued to complete the record, and the transcript sought to be filed, appearing to have been Certified from the' Court below, upon a writ of error sued out to a previous term of this Court, and not prosecuted.-</p>

On points reserved from the Circuit Court of Dallas county. In this case an indictment was preferred against Wiley Mosely and Elijah Absence, in the following terms: “ The State of Alabama, Dallas county — Circuit Court, Spring Term, 1836. “ The grand jurors for the county aforesaid, upon their oaths present, that Wiley Mosely, late of the county aforesaid, on the twenty-first day of March, A. D. eighteen hundred and thirty-six, with force and arms at-, to-wit, in the county…

county. This was an action of trespass on the case, which the pla,in tiff in error commenced against the defendant, in the County Court of Montgomery county, on the ninth of February, eighteen hundred and thirty-five.

On points reserved. From the Circuit Court of Russell County. The prisoner was tried, and convicted of slave-stealing, at the last Fall term of the Circuit Court of Russell County, and received sentence of death. It was moved, in arrest of judgment — ■ 1st. That the indictment did not conclude against the form of the statute, in such case made and provided. 2ndly.

<p>Motion to amend a writ of error.</p>

This was an action of assumpsit, upon an instrument in writing, for the delivery of cotton in the seed. The writ issued in the cause, commanded the sheriff to take the body of Barnabas R. Watkins] and the declaration was against Barnabas Watson — describing the note as made by Barnabas R. Watson. On the trial, the plaintiff having produced a note signed by B, R. Watkins, the defendant’s counsel objected to its being offered as evidence.

Aldridge was summoned at the suit of Hightower., to answer before a justice of the peace of Autauga County, upon a complaint of forcible entry and de-tainer. On the trial before the justice, a jury was impan-nelled, who rendered a verdict against Aldridge; and he took the case, by certiorari, into the Circuit Court.

There was a motion to dismiss the writ of error, in the cause, on the ground of variance between it, and the transcript. The transcript disclosed the names of certain parties to the suit, and the writ of error recited the names of other persons than were therein embraced.

This was trespass on the case for slander. The writ was issued and declaration filed, to September term, eighteen hundred and thirty-four.

This was a proceeding by scire facias against bail. ‘The scire facias ivas in the following terms— •“ The State of Alabama, Mobile County. To the .sheriff of Mobile County — greeting: “Whereas, heretofore, to wit, on the thirtieth day of May, in the year eighteen hundred and twenty-nine, a writ of capias ad respondendum, issued from the.

This action was assumpsit, by Asbury, for the recovery of a sum of money, due upon a contract for the building of a house. The plaintiff declared in a count upon a special agreement between the parties, for the building of a house, and also in a common count upon a quantum meruit. The plea was non assumpsit, and verdict and judgment were rendered for the plaintiff.

On motion to the Court, to amend a judgment, rendered by this Court, on certificate, at June term, eighteen hundred thirty-seven.

Oil a writ of error to the Circuit Court of Russell county. This was an action of assumpsit, by Goar, the administrator of Ford. The declaration alleged, tka t on the nineteenth day of January, A. D. eighteen hundred and thirty-one, one EsraB.

The prisoner was indicted in the Circjuit Court of Lowndes, in an indictment with four counts.

. This was a bill for divorce, by Lucinda Richardson against her hir-band, John Richardson. The bill slated that complainant,‘entered into matrimony wiih the defendant, in the year eighteen hundred and ten. That the union oil her part, was one of affection, rather than of prudence, and that from it, she had long cherished the hope of deriving happiness and contentment.

This wrs an action of trespass, for breaking and entering the close of the plaintiff, and talcing there-Hum a horse, alleged to have been in the possession of, and owned by the plaintiff; and was prosecuted in Greene Circuit Court, by Bartlett against Herndon.- ' The declaration complained, that the defendant, on the --- day of -- eighteen hundred and thirty-one, with force and arms, &c, broke and entered a certain stable of the said plaintiff, in the county aforesaid, and…

The action in this case was assumpsit upon a promissory note, made by the plaintiff in error, to the defendant, for the payment of money. The cause was tried upon issues taken to the pleas of non assumpsit and payment.

On a writ of error to a judgment of the Circuit Court of Mobile county. Clements, the administrator of Clements, was complained of, at the suit of Eslava, in the action of assumpsit.

In this case, it was moved by to strike the cause from the docket. The judgment in the case had been affirmed on certificate, and the same afterwards set aside,' as was alleged, without the knowledge of defendant’s' counsel. It also appeared, that the record had not been filed within the time required by law; but at a subsequent day, had been suffered to be docketed, on motion to the Court.

Joseph Agee, the executor of Noah Agee, commenced an action of assumpsit against John Gayle, and Matthew Gayle, to October term, eighteen hundred and twenty-seven. The-cause of action was a joint and several note, signed by J. Q,. Guild, Matthew Gayle, jr. and John Gayle. At Fall term, eighteen hundred and twenty-eight, the death of John Gayle was suggested, and a scire facias awarded to Matthew Gayle and J. W. Hues-tis, his representatives.

This case was originally commenced before a justice of the peace, and removed into the Circuit Court by appeal. The action was commenced in the name of A. C. Hinson & Co. to recover of Hanks,the amount of an open account, alleged to be for rent, and before the justice, a judgmeut was recovered by the plaintiffs for thirty-eight dollars, and costs of suit.

This was an action of assumpsit, tried in the Circuit Court of Washington, and prosecuted by Bar-rington vs Chamberlain.

This was a bill, filed by the testator of the one of the defendants in error, Farley, to enjoin a judgment at law. The bill stated that Pinkston, the testator, with others, previously to the filing of the bill, had executed to Haynes, a bond, conditioned for the execution of titles to certain lands, within five years after its date.