Volume 4 — Stewart & Porter's Alabama Reports (1831–1834)

In error from Jefferson County Court. This was a motion, submitted before a justice of the peace, and carried, by certiorari, into the County Court. It appeared that an execution had been committed to Condry, who was a constable, which lie had failed to return ; and the motion was made under the statute, against him, and the sureties to his bond.

This was an aclion of trespass, to try the tille to a cerlain lot of land, situated in the town of Mobile; and was proseeuled in 1 lie… Held: be divested out of the heirs and devi-sees of John Forbes, and vested in the said complainant, James Innerarity, as acting, surviving 'partner, of the said late firm of John Forbes & Co., for the benefit of the devisees of the said late firm, and of the heirs and devisees of the said John Forbes & Co., and of the creditors of the…

This was nit action brought by Hnlchins against Childress & Baker as copartners, before a justice of the peace, in Greene counly, on a note for twenty-five dollars, made by the firm. Hnlchins obtained judgment.; an appeal was taken to tito County Court. There, the plaintiff, Hutchins, declared against the .defendants, as copartners. They filed a joint- plea,, (in short.) the general issue; issue was joined and ■verdict found for the defendants.

This case arose upon an action of assumpsit, commenced in Pickens Circuit Court., by the plaintiff in error, upon a promissory note. The defendant in the Court below craved oyer of the writ, and plead in abatement, that no indorsement of 'the cause of action was made, upon the writ. The defendant demurred to this plea, and under it judgment was rendered for the defendant.

In this case, a scire facias was isss-oed against the administratrix of Ready, to obtain the revival of' a judgment against his estale, which had been rendered in favor of Thompson. The judgment was-had at the July term of Madison county Court, irr 182] ; and the scire facias was tested 1 he 33d December, 1828. The administratrix, 1o this proceeding, plead several pleasj the first of which tvas the statute of non claim.

This action was, assumpsit upon a verba] contract, for the sale, of- three adjoining half quarter sections of land ; and was prosecuted in> the County Court of Shelby, by Naish, against Meredith. The facts of the case were, that,-in . 1826, Naish sold to Meredith, by verbal contract, three half .quarters of a section of land, for the sum of , one thousand dollars — five hundred dollars payable on the 25th December, 1826, and five hundred dollars, on the. 25th December, 1827..

On error to the Circuit Court of Tuskaloosa. This action was covenant by Vanner, upon an agreement for the hire of slaves, executed between the plaintiff in error, and the defendant’s intestate. The covenant bore an impossible date, being the “31st February, 1821,” and was declared on under four counts, in all of which, it was averred, that the paper had been so dated by mistake.

This motion was submitted on the part of Gates, for an .attachment for contempt, against the defendants, in disregarding an injunction, which had been granted bj the Circuit Court of Covington, and perpetuated here, on appeal. The question was, whether this Court possessed' the wwer of granting such process.

In this case, an indictment having been preferred against Nugent, for the murder of one Caple — a special terra of -Dallas Circuit Court was ordered, for his trial. At the time appointed the Court was duly or-ganised, and the prisoner was arraigned, and plead not guilty. A jury was then impanneled, and sworn to try the issue between the State and the prisoner; and the Court adjourned, until the following day.

Mr. Acre, counsel for the plaintiff in error, moved to set aside the judgment of this Court, in the present entitled case, under its peculiar facts: and he read an affidavit stating that the assignment of errors, (for want of which the judgment was had,) had been delayed to be filed, in consequence of an understanding with Sallee,.of counsel with the defendant, that they might be filed at leisure; that the case was in chancery; and contained merits.

Davis, being indicted, under the statutes of this State, in Mobile Circuit Court, for retailing spiritous liquors, without license, in that city, offered proof, in excuse therefor, that the city corporation had granted him license and permission to vend liquors. Judgment being rendered against him, this point was reserved for the consideration of the Supreme Court.

This was a bill in chancery, filed in Lawrence Circuit Court, by William Wright, against John Moore and others. The bill set out, that some time in 180-, the complainant and James Doswell and John Wright, executed their note of hand to John Moore, the defendant, for the sum of fifty-five dollars.

<p>I. Semble — 'That whore a decree is had in a Chancery cause, and it is taken to the Supreme Court, on appeal, and affirmed; the Court below has the power to enforce, and carry out the decree; as though it had never been in this Court.</p>

The plaintiffs in error declared -against the defendant, in assumpsit, as the drawer of a bill of exchange. The bill' was drawn on one Chandler, at ninety days, in favor of the plaintiffs or order, and made negotiable and payable at the Bank of Mobile. The proof was, that at maturity the bill had been regularly protested, for non payment; and notice thereof directed to the drawer at “ Wigginsville,” where the bill was dated, lodged in the post office at Mobile.

Perryman, the defendant in error, procured the issuance of a warrant, from a magistrate of Conecuh County, against Margaret Wiggins, for the sum of twenty-five dollars, due upon a promissory note.— The magistrate, after a hearing of the cause, rendered judgment in favor of the defendant; and the plaintiff appealed to the Circuit Court. At March Term, 1832, it being the return term of the appeal, a formal judgment, by default, was rendered against the defendant.

James R. Maltbie declared, in the action of as-sumpsit, in Jefferson Circuit Court, against the plaintiffs in error, upon a promissonr note, executed by them, (jointly and severally,) to the plaintiff. The writ was executed upon both of the defendants. But Brooks neither appeared, nor plead to the action.

In thischse an action of trespass vi et armis, was instituted by the plaintiff in error, in Lauderdale Circuit Court. The declaration charged the defendants with having taken out of the possession of the plaintiff, by violence, a servant girl, who had been ap-. prentieed to him. The proof offered was, that the mother of the child had entered into a parol contract with the plaintiff, by which the child was to serve the plaintiff for a certain time.

On the 6th day of September, 1831, complaint was made by Daniel Coats, before F. Sealy, a justice of the peace of Tuskaloosa county, that James C. Hemphill and Alexander Hemphill, being millers, in violation of the statute in such case made and provided, kept at their mill, a toll dish which measured more than one eighth part of a bushel; and that they'were in the habit of causing the grain ground at the aforesaid mill, to be measured by ihe said toll dish.

On the Mth day of September, 1830, the plainliff in error filed a bill in Chancery, against ihe defendants, in Morgan Circuit. Court. The bill staled, that, on the 23d day of January, 1826, ihe plaintiffs became the assignees, for valuable consideration of .a promissory note, executed by the defendants, Isaac .arid Mary Sadler, to one Anne P. Rossel.

In this case, which was a chancery proceeding ire Tuskaloosa Circuit Court, Jonathan Hunt, filed a bill against the defendants in error, for the foreclosure-of a rnorlgage deed.

In this case Nichols, the plaintiff in error, petitioned the Circuit Court of Tuskaloosa Courtly, for a rule against G. W. Crabb, the comptroller, reqiring him to shew cause, why a mandamus should not issue, compelling him to grant a warrant on the treasury. ■By statute, enacted on the 3d January, 1S27, providing for tlie erection of a State Capitol, com missioners were appointed to carry into effect, the re-q uirements and duties therein prescribed.

This was a motion against, a constable and it is sureties, before a justice of the peace, for the failure of the former, t.o return an execution which had been delivered to him, within the time prescribed by law.-Ju lgmeut- was obtained before the justice by the-plnintilfs in error; and the case was removed by certiorari, into the Circuit, Court of Greene.

This case originated upon a petition and mandate, for a certiorari, filed in the Circuit Court of Tuska-loosa. The petition disclosed, that some time previous to September, 1829, a judgment had been rendered against Wright, by a justice of the peace, in favor of Wheelock: that subsequently to the rendition of said judgment, a settlement took place, between the parties, in which this judgment was included.

This war a writ of error, taken by the sureties to a bond, given by a claimant of .property, levied on under execution.

This action was assumpsit, against Hays, for the use and 'occupation of lands, the freehold of the defendant in error.

This was an action of assumpsit, upon a promissory note executed by the plaintiffs in error, to White and Leslie, administrators of all and singular the goods and chattels, rights and credits which were of Edmund Lane deceased.

On the 27th day of April, 1830, Wade Allen, the defendant in error, obtained process of attachment, against the estate of John Thomjrson, returnable to the ensuing September term of the Circuit Court of Montgomery. The writ issued by the justice, was in the usual form prescribed by statute, and contained an indorsement, that the process was founded upon ten promissory notes, executed by the defendant, to one Slaughter or bearer.

.This was a process of garnishment, issued upon a judgment, rendered in Madison Circuit Court, against John Carney.

This case was removed, by certiorari, into the County Court of Autauga; and was a suit upon a promissory note, instituted before a magistrate, by Tatum, against Cavanaugh, as the indorsee of a promissory note; The note was drawn by one Ashly, and was due and payable to bearer, on the 1st day of March, 1830. indorsed by Cavanaugh-, on the 5th December, 1829.

This was an action of assumpsit brought by the defendants in error, in Dallas Circuit Court, as physicians, for medicine and medical services, furnished and performed by the said defendants, for the said plaintiff, &c. Common counts were alone inserted in the declaration; to which several pleas in bar to the merits, were filed.

On the 31st day of July, 1830, a bank notice was issued to the sheriff of Monroe County, requiring him to serve the same upon Daniel Walker, surviving partner of the late firm of Smith & Walker.

This was a suit upon a promissory note, prosecuted, before a justice of the peace of Montgomery county : and was removed into the county Court, by cer-tiorari. At February term, 1828, of that Court, the parties appeared, and a verdict was rendered in favor of the plaintiff. Upon this Verdict an execution was issued, which was subsequently superseded by order of the judge.

This action was trespass, on the case, in Bibb Circuit Court, charging Hill, the defendant in error, with the speaking of slanderous words of and concerning the plaintiff.

This action, being trespass for taking goods, was brought by the defendant in error, in Pickens Circuit Court. The plaintiff declared against the defendant, for that he, being the sheriff of that county, with force and arms, seized, took and carried away, ten bales of cotton, of the property of the plaintiff.— The defendant plead the general issue.

In this case, Horn, the defendant in error, having laid claim to certain slaves, levied on,-under execution at law, as of the-estáte of one Han by, the regular proceedings under the statute, were instituted, to try the right of property. Collingsworth, the plaintiff in error, having, in the lifetime of Han by, to wit, at Spring term, 1824, of Blount Circuit Court, recovered judgment against him, executions were regularly issued thereon, and duly returned nulls, bona.

This was a bill in chancery, filed in Marion Circuit Court, by William H. Ragsdale, against Mathew McCollum, Benjamin Harris, David Kennedy, James Ormond, Robert Elliott, Morris Hall, Robert Taylor, Oliver Woods, David Hawkins, and Joseph Franks. The object of the bill was to enjoin the use of a road, which the defendants had made, and were using, as was alleged, to the detriment of the complainant’s turnpike.

This was an action of assumpsit in Limestone County Court, prosecuted against the defendant in error, by Tanner & Evans, for the use of Samuel Tanner. The declaration charged, that on the 9th day of January, 1829, the said defendant made and signed his certain instrument in writing, in the words and figures following, that is to. say : “Athens, January 9, 1829.

In this case, a bill in chancery was filed in the Circuit Court of Lauderdale, by Styles, executor of Carswell, against Craig, Dawson and Blow. The object of the bill was to enforce the collection of a balance due to complainant, as executor, on a note executed by Craig, and which had been trans-fered by the defendant, Dawson, in whose hands it was placed for collection, to Blow, in payment of Dawson’s individual debt.

This ease was removed by a writ of error from the County Court of Madison, and was the judgment of that Court, against the plaintiffs, as sureties to a writ of error bond, executed on taking a certain cause from thence into the Circuit Court.

This was an action of trespass on the case, prosecuted in Butler Circuit Court, against Caldwell, for' the recovery of damages for the… Held: that the warranty extended as well to defects of mind, as of body; and that if the value of the slave was impaired by unsoundness of intellect, such unsoundness should be considered: to all which, the defendant excepted, &c. The question is, .does a warranty, as to defects of person, extend to defects of mincl 1 As there is no direct…

In error, to the Circuit Court of Franklin. This was a bill in chancery, 'to subject certain slaves in the possession of Hogan, to restitution- — - they being claimed by the complainants, under the will of Thomas B. Whitmell; and in right of Ann, wife of Bell, and the child of the testator. , The bill was filed in the name of Bell and Ann, formerly Ann Smith Whitmell, his wife, the said Bell being the administrator of Thomas West Whitmell, and of Elizabeth W. Hogan, formerly…

Peter Wyatt filed a bill in Chancery, in the Circuit Court of Autauga, setting forth, that on or about the fifteenth day of July, 1822, he purchased from Moses Greer, a negro man slave, named David : that, in payment for this negro, the complainant transferred to said Greer, anote executed by his brother, William Wyatt, for the sum of five hundred and fifty-one dollars and two cents, dated the fifteenth day of July, 1820, and payable at one day; and also a horse, saddle and…

This action was detinue, for certain slaves prosecuted by Dennis Carpenter, administrator of John Carpenter, against the plaintiff in error, in Montgomery Circuit Court. The defendant plead, first — non delinet.

George Johnston declared in trover against Sims, in Greene Circuit Court, for the conversion of a negro girl slave. At September term, 1831, a verdict was rendered for the plaintiff, and his damages assessed at one dollar : and on this verdict a judgment was rendered for one dollar costs. At March term, 1832, a motion was submitted to the Court by the plaintiff for a correction of the judgment, by the entry of full costs.

In this case an action of debt was commenced in the Circuit Court of Wilcox, in the name of the Judge of the County Court of that County, for the use of Norton; founded upon the bond of the defendants, given as keepers of a ferry, upon the Alabama river.

This was a petition, filed in this Court, by Garrow, praying for a supersedeas, against an execution at law. Carpenter and Hanrick, administrators of Hall, having recovered a judgment at law against Garrow, in the Circuit Court of Mobile, Garrow filed a bill in.

Writ of error from a decree in chancery. William H. Moore, by bill in Chancery, filed in Franklin Circuit Court, set forth — that some time in the year 1825, he being advised, that one Peyton Palmer, being the agent and trustee of one Maxwell, held the bond of Maxwell, to Godley, conditioned for the title deeds of a lot or parcel of land, lying in the town of Tuscumbia; and understanding that the legal title to said lot was in said Godley, and that said Palmer was fully…

This was an action of detinue, for the recovery of two patents, for two lots of land, prosecuted by the defendant in error, in Tuskaiocea Circuit Court, as executor of Elias JL. Payne. The declaration was in the common form, compcs-ed of one count, and alleged that Payne, the intestate, possessed them of his own property; but averred no right to them in the plaintiff, c-xccpt as executor of Payne.

This action was trespass to try titles, by Fitts against Sawyer.

In this case, an execution having issued in favor of Mosely, against one Samuel Dale; and being levied on two certain slaves; they were claimed by the plaintiff in error, James Dale, as of his property. Upon this claim, the usual proceedings, under the statute, were had, and determined in favor of the plaintiff in execution. The defendant subsequently moved the Court for a new trial, which was granted, as to one of the slaves, and refused as to the other.

Error, from a decree in Chancery, in Tuskaloosa County. The bill in this case was filed by James Meek, John Meek and Samuel M. Meek, then lately merchants and copartners in trade.

This was an. action upon the case, in the nature of assumpsit, by David Kellar, against George Sprowl, Andrew Buchanan, Hugh Findley, James E. Dickson, James W. Behan, James M. Banks, John Kennedy and John Elliott, late partners in, and owners of the steam-boat, “ Dewit Clintonand was prosecuted to recover damages, for a failure of the defendants, to comply with their undertaking, by a bill of lading, to deliver certain cotton, at New Orleans.

Samual Carter and Sabina, his wife, declared against Presly A. Berry, in custody, &c., in a plea of trespass on the case, &c. For that, whereas the said Sabina, being a good, true, honest, just and faithful citizen of this State; and as such, having always behaved and conducted herself; and, until the grievances committed by the said defendant, was always reputed, esteemed and accepted among her neighbors, and othér good and worthy citizens of this State: and, whereas the…

This action was assumpsit for rent, prosecuted by John D. Bibb, against Peter Wyatt, in Montgomery Circuit Court.

Error, to the Circuit Court of Tuskaloosa. This action was debt, on a bond, executed on the replevy of property, taken hi attachment; and was prosecuted by John O. Cummins, assignee, against Francis T. Scott, James Jack and Janies Gray.

On motion to dismiss. In tills case, two judgments were rendered by a justice of the peace of Mobile county, in favor of the plaintiff in error, against the defendant: and on appeal, taken to the Circuit Court of Mobile, the judgments were reversed. The plaintiff took a writ of error, on these judgments, from this Coart; and in it embraced the judgments rendered below in both cases.. It was now moved, to dismiss the writ of error.

In this case, which was in the Chancery Court of Mobile, Stacey B. Waters, by bill, prayed relief against a judgment recovered against him, at law, by Creagh, surviving representative of one Mitchell. Held: as the executor of Mitchell: that Bayard replied, tliat Bidgood had settled the matter and Waters need not trouble himself about it.

David Chandler, administrator of the estate of Robert Chandler, declared in Lauderdale County Court, in debt, against Zedekiah Tate, as maker of a promissory note; which note was payable to the plaintiff, as administrator; To the action the defendant plead nil debet, and set off.

A bill, praying an injunction, was submitted to this Court, by Curley, guardian of Davis, praying that the Tuscumbia, Courtland and Decatur Redi Road Company might 'be restrained from trespasses… Held: that the grant of a mine takes with it the land that covers the mine. The •Chancellor, therefore, considered the mine as the principal thing; and the injunction was granted, because the defendant was carrying away that which constituted a part of the inheritance. — 7 Ves. 307.

la this case, an action of debt was instituted in Pickens County, in the name of the Governor for the use of Callahan, against White and others, his sureties. The cause of action was the bond of White, as sheriff of Pickens county; and the action was brought to recover of the defendants, fees collected by the sheriff, and which were due to Callahan as Clerk.

In error on a decree in Chancery of the Circuit Court of Mobile. Russel Stebbins and John Hunter, as trustees, filed a bill in Chancery, which set forth the following facts : — On or about the 23d day of February, A. D. 1828, John S. Bourne, then a citizen of the County of Mobile, but since deceased, together with Mary Ann Bourne and Ann Mary Bourne, of the city of New York, were seized,, or pretended to be seized, of a certain parcel of land, lying in the city of Mobile.