Volume 5 — Alabama Reports

Ejmoit to the Circuit Court of Lawrence. Original attachment v. Joshua T. Kinsey, by the plaintiff in error, which was levied on certain slaves. To the property thus levied on, John M. Kinsey set up a claim, by affidavit, under the statute, and gave bond to try the right of property ; and the cause coming on to be tried, a verdict and judgment was rendered for the claimant.

Weit of Error to the Circuit Court of Dallas county. Assumpsit, by Sumwalt' against Thrash, as the administrator of Wood, on a note given by the intestate in his life time. The defendant pleaded, 1st. Non Assumpsit; on which there was a joinder. 2d. The statute of non claim, to which the plaintiff replied that the defendant did not make publication in the manner required by law.

Whit of Error to the Circuit Court of Jefferson. The plaintiff in error, Clayton, was indicted for exhibiting “ for hire, a circus, without obtaining a license from the clerk of the County Court” of Jefferson, and failing to appear, a judgment nisi was rendered against him and Badger, his co-plaintiff, who had previously entered into a recognizance with him as a surety; conditioned that he would appear at the Circuit Court, &c. On this judgment an original and alias scire…

This was a summary proceeding, by motion of the defendant against the plaintiffs in error — the following is the judgment entry: Branch Bank, vs. Daniel Smith, y Calvin S. Powe, A. K. Smith. J 17th March, 1840, This day came the parties by their at-tornies. The motion for judgment was made in the cause on the second Monday of the term.

Writ of Error to the Circuit Court of DeKalb county. Two suits upon promissory notes made by the defendants Wright and Clayton, and another person, were commenced in a justices court. The defendants removed the judgment rendered there against them into the County Court, by certiorari.

Wuit of Error to the Circuit Court of Macon. The defendant in error declared against the plaintiff, in assump-sit, on a promissory note made by his testator and two other persons, on the fourth of February, 1837, for the payment of one thousand dollars, on or before the twenty-fifth of December, 1838. The cause was tried on an issue to the plea of ne unques exectitor. On the trial the defendant below excepted to the ruling of the presiding judge.

EimoR to the Circuit Court of Dallas. This was an action commenced before a justice of the peace, on a note of the plaintiffs in error, under fifty dollars ; and judgment being rendered in favor of the defendant in error, an appeal was prosecuted to the Circuit Court.

<p>1. An infant is not personally liable, everf for necessaries, when they are supplied to her by a store keeper with the permission of her guardian, and charged to him although the credit given to the guardian may have beenwinduced by the fact that the ward had an estate of her own, and with the expectation that the debt would be paid out of it. The contract is personal to the guardian, and his liability cannot be shifted to the infant.</p>

We.it of Error to the Circuit Cou of Sumter. This was a proceeding by notice and. motion under the statute, by the plaintiff in error against Gary, as the sheriff of Sumter, and the other defendants as his sureties. The case was commenced in the County Court, and transferred from thence to the Circuit Court, because, as it is alleged, the judge of that court was interested.

EmioR to the Chancery Court at Cahawba. The bill which was filed by the plaintiff in error, alleges that he executed a note as surety for one John Dunn, together with another as co-surety to the Bank of Mobile, upon which judgment was obtained against him and the principal, and that execution issued thereon, which was levied on the property of Dunn, to an amount sufficient to satisfy the execution.

Wuit of Errof to tbe Circuit Court of Lowndes county. Action of trespass to try title. On the general issue a verdict Was rendered for the plaintiff, on which he had judgment. The defendants proved that the sheriff omitted to give notice to the defendant in execution, or to his tenant, of the levy; and also omitted to advertise the land, except on the court house door.

<p>Writ of Error to the Circuit Court of Perry.</p> <p>This was a proceeding against the defendant, as sheriff of Perry, by notice and motion, under the statute for the recovery of a judgment against him and his sureties, for failing to return a writ offieri facias, issued and placed in his hands at the suit of the plaintiff, against the goods, &c. of the “ Manual Labor Institute of South Alabama.” The notice distinctly indicates when the motion will be made; and further states that a judgment will be sought “according to the act of Assembly of 1819, in such case made and provided.” An issue was made up on the notice, and submitted to the jury, who not being able to agree, a mis-trial was had. The defendant thereupon demurred to the notice, and his demurrer being sustained, a judgment was rendered in his favor and against the plaintiff for costs.</p> <p>The defendant should not have been permitted to demur after the mis-trial, nor should the demurrer have been sustained, even if regularly interposed.</p> <p>There is no provision in the act of 1819, which authorises a proceeding by notice against the sheriff, for failing to return an execution. [Aik. Dig. 163-4.] The thirty-first section of the act of 1807, gives such a remedy. [Aik. Dig. 173.]</p> <p>The notice does not inform the defendant for what he is called upon to answer: and as to the demurrer, it will be inferred that its regularity was not objected to.</p>

Enitoit to the Circuit Court of Cherokee. This Was a motion against the sheriff of Cherokee county, for failing to return an execution which issued from the Supreme Court for costs. The judgment entry is as follows: William Hale, vs. Moses H. Hughes, late sh’ff & John Wilkinson, David Love, Zachariah Roberts, and John Lowry.

<p>Whit of Error to the Court of Chancery for the ninth district of the Southern Division.</p> <p>The bill in this case is filed by McClure, Cooper, Brown, Dans-by and Campbell, and alleges that Colelough, one of the defendants, at the fall term of the Circuit Court of Pike county, for the year 1837, recovered a judgment against McMahon & Evans, for $4089, on which $893 50-100 was paid the 28th February, 1838.</p> <p>On the 6th April, of the same year, a Ji. fa. on this judgment was issued, and placed in the hands of McRae, another defendant to the bill, as sheriff of Barbour county, to be executed. McRae could have returned the execution in sufficient time to avoid any penalty, and on the day, when he by law, ought to have returned it; but, when there was yet sufficient time to have done so, he called upon an attorney, who, as -the bill states, was the agent and attorney of Colclough, and consulted with him on the necessity of returning the execution three days before the court, to which it was returnable. This attorney assured the sheriff, that it was unnecessary, that he himself would attend Pike court, and would take the execution with him, and deliver it to the clerk, on the first day of the term.- The return of no property was written on the execution by this attorney, at the request of the sheriff, and the writ was delivered by him to the clerk, on Monday, the first day of the term.</p> <p>Colclough, with a full knowledge of these facts, afterwards ruled McRae, for not returning the execution three days before court, and obtained judgment against him, and the complainants McClure, Cooper and Brown, and the defendant Pugh, as his sureties. Neither of the complainants had any notice of the rule, nor did they know that judgment could be rendered against them without personal service. McRae afterwards, in the names of all the defendants to the judgment, prosecuted a writ of error to the Supreme Court, where the judgment was affirmed. After tins affirmance, the complainant McClure, sued out another writ of error, under the impression that he had the right to do so, and gave bond with Dansby and Campbell, as sureties, they being wholly ignorant of the previous writ of error. The judgment was again affirmed and rendered also against the sureties. In point of fact, such of the complainants as were made liable as the sureties of McRae, were not legally bound, although McClure, Cooper and Brown, signed a paper intended to be a bond when fully executed and approved. They signed “ under the expectation, with the full understanding and with assurances from the judge of the County Court, who took the bond, that the defendant Pugh, would also execute the same as surety. The judge of the County Court assured them that he was authorised to execute the bond in Pugh’s name. But he was not so authorised, by which the other sureties were deceived and defrauded;” the authority given by the said Pugh was by parol for the said judge to sign his name to the bond. When the judge came to consider the approval of the bond, doubts arose in his mind as to whether Pugh was bound thereby, and so he would not and never did approve the same.</p> <p>Pugh is made a defendant, because he resides out of the State, and his assent cannot be procured to join as a complainant; Mc-Rae is made a defendant, because he refuses to join as complainant. It is also alleged that he is entirely insolvent.</p> <p>Colclough and the sheriff McRae, answered the bill, but no question arising out of their answers is now before the court, as the chancellor dismissed the bill for want of equity; he considering the complainants as precluded from questioning the judgment in the Circuit Court, in consequence of their proceedings under the writ of error.</p> <p>This decree is now assigned as error.</p>

<p>1. It is not a sufficient ground for arresting the judgment in a criminal case, that the record does not show that the grand jury were drawn according to law, or the venire executed.</p> <p>2. An indictment against two, which charges one with an assault, with the intent maliciously and feloniously to kill and murder, and the other with maliciously and feloniously, inciting his co.defendant to make an assault with that intent, is" good at common lawi</p> <p>3. The judgment in a criminal case will not be arrested, because the record shows that the jury wore sworn well and truly to try the issue, &c.; the case could not be thus tried, without having a proper regard to the law and evidence.</p>

<p>1. Upon a bill filed for a divorce by the wife, in which she does not claim alimony, no decree can be made in 'favor of the husband, on his answer for money paid by him for the debts of the wife, contracted before marriage. If such a decree can be made in any case it must be on a cross bill filed by the husband.</p> <p>2. When it appeared that the husband had made a settlement for the separate use of the wife and her children, by a former marriage, it might be proper for the chancellor to refuse relief to the wife applying for a divorce, (although ho could not decree in favor of the husband) until she made a re-conveyance of such separate estate.'</p>

<p>1. Where a judgment is obtained against an administratrix in a suit where she is the plaintiff, (under our statute of sot off; Aik. Dig. 181, § 174,) upon the certificate of the jury, that the plaintiff is indebted to the defendant, and she is afterwards sued on a devastavit, such judgment raises no presumption of assets in her hands.</p>

Wkit' of Error to tho Circuit Court of Randolph. At a term of the Circuit Court, hoiden in April 1841, the plaintiff in error, declared against the defendant in debt, on a bill single. In the vacation thereafter, the plaintiff’s attornies noted on the docket, the failure to file a plea, and that a judgment by default was claimed.

This was a proceeding in the Orphans’ Court of Dallas county, upon the last will and testament of James McElroy, the probate of which was contested, on the ground, that the deceased was not of sound mind and disposing memory; and that the will was obtained by undue influence; and a jury being impannelled to try the issues joined between the parties, found in favor of the contestants, and thereupon tire court decreed that probate of the will be refused, and that the paper…

<p>1. The circumstance that an agent, acting in the business of his principal, takes notes payable to himself, in discharge of the sum due to his principal, is not, by itself, such evidence of a conversion as will dispense with proof of a demand of the money collected on the note before suit brought.</p>

WRIT of Error to the Circuit Court of Macon. From the record hr this cause it appears that the defendant in error, was plaintiff in a judgment recovered in the Circuit Court against the plaintiffs in error, and that the former moved that court, to allow the sheriff to amend a return made on a fieri facias, issued thereupon the 24th of February, 1841.

ERRoit to the Chancery Court at Mobile. This bill was filed in 1835, by the plaintiff in error against the defendant in error. The bill charged, that the defendant in 1816, became the administrator of the estate of the father of the plaintiff, and possessed himself of the slaves and other property of the deceased.

Whit of Error to the County Court of Tallapoosa county. Assumpsit by Taylor, for the use of Berry against Bass, on a promissory note made by him, and due 22d January, 1840. At the trial, the defendant gave in evidence, under the pleas of payment and set-off, a joint and several note made by the nominal plaintiff Taylor, and one Lovelace, payable to Dunn & Co. and due the 2d January, 1840.

<p>1. The jurisdiction of justices of the peace, is limited to eases in which the amount in controversy does not exceed fifty dollars; and where a judgment rendered by a justice is appealed from, the recovery in the appellate court, should not exceed the sum of fifty dollars, with interest from the time the primary judgment was rendered. But whore the judgment on appeal is consequent upon a ver if Ct' it will not be reversed on error, because it is rendered for a sum greater than that which limits the jurisdiction of justices, with interest from the time stated.</p>

EiieoR to the County Court of Sumter. This was an action of assumpsit, brought by the defendant against the plaintiffs in error. Upon the trial, it appeared that the plaintiff sent to the defendants, commission merchants in Mobile, a negotiable note, to be discounted in one of the banhs of that city, and the proceeds to be received by them for his use. That the note was discounted, and the proceeds thereof, the amount sued for, received by the defendants.

Writ of Error to the Circuit Court of Butler county. This was the final settlement of the estateof Henry West, deceased ; and for the proper understanding of all the questions raised, an abstract of the entire record, is necessary. Administration was granted on the estate of Henry West, deceased, by the county court of Butler county, on the 21st of August, 1837, to Margaret E. West, one of the defendants; and the others are her sureties on the administration bond.

Weit of Error to the Circuit Court of Lowndes. , The transcript of the record in this case is the proceedings had upon a writ of habeas corpus, sued out at the instance of the plaintiff in error. It appears that the plaintiff had been arrested under a writ of capias ad respondendum, issued at the. suit of the defendant in error.

<p>Error to the Circuit Court of Madison.</p>

Witrr of Error to the County Court of Mobile county. This action of assumpsit was commenced by attachment, on the 13th of January, 1841, and the plaintiffs declare for money paid, &c: verdict and judgment for the plaintiffs. At the trial a bill of exceptions was taken by the defendant, which discloses this state of facts. The defendant was the owner of certain goods, valued at $6400, and shipped at Philadelphia, on board the schooner Thomas Ewing, bound for Mobile.

Writ of Error to the Circuit Court of Mobile. The judgment entry recites, that the defendant in error, while sheriff of Mobile, on the 4th of June, 1836, took from the plaintiffs and Philip McLoskey, a bond, in,the penal sum of ten thousand dollars, indemnifying him against any action or actions that might be brought against him for levying three writs of attachment in favor of McLoskey, Hagan & Co. against one George Harrington, on certain goods and effects, as the property…

This bill was filed by the plaintiff in error, as the next friend of three infant children of Nicholas Stallsworth; Eldridge, Benjamin and William. The bill alleges, that the father of complainants, executed his will in such a manner as to pass lands, and died, leaving the defendant his executor, who has qualified as such, and taken upon himself the execution of the will; paid the debts, &c., and settled with the widow of the detíeased, and several of the heirs.

Writ of Error to the Circuit Court of Wilcox county. This action is trespass vi et armis, by McArthur against Kennedy. The declaration has three counts.

Wiiit of Error to tho County Court of Talladega-. This was action of assumpsit, brought by the defendant in error against the plaintiff, on a promissory note made by the latter, for the payment of five hundred dollars to Alexander Watson» and by the paye'e indorsed to tho plaintiff in the action, who sued for the use of Andrew Wooley. The questions arising upon the assignment of errors, are presented by a bill of exceptions.

<p>1. An averment in a declaration in an action by an assignee against an assignor, that execution issued on the judgment from the proper office, and was returned by the sheriff to the proper office, endorsed “ there is no goods, &c., of the defendant to be found in my county,” is sufficient.</p> <p>2. The assignor of a note is liable to the assignee for the costs of the suit prosecuted against the maker of the note.</p>

Weit of Error to the Court of Chancery for the first Dictrict of the Southern Division. This bill is to foreclose a mortgage executed in October, 1830, by Henry Hitchcock and Anne, his wife, upon certain lands and tenements in Mobile, to secure the payment of forty thousand dollars, due by bond, from Hitchcock to Jonathan Ogden and John Ferguson.

<p>Whit of Error to the County Court of Mobile.</p> <p>The defendants in error declared against the plaintiffs, in as-sumpsit, in several counts. The first count sets out a promissory note, as follows:</p> <p>“ Mobile, June 9th, 1838.</p> <p>$ 160 54-100. Thirty days after date, the Ncw-Orleans and Mobile Mail Line promises to pay Messrs. James Curry & Co., or bearer, one hundred and sixty 54-100 dollars, for value received, negotiable and payable at the Planters’ and Merchants’ Bank of Mobile.”</p> <p>The second is on a note in haec verba.</p> <p>“ Due J. Curry & Co., or bearer, seventy-six 18-100 dollars. $76 18. Mobile, 27 Dec. 1838.</p> <p>New ORLEANS anb Mobile Mail Line,</p> <p>By Minge & Russell, Ag’ts.”</p> <p>The third and fourth embrace the common counts in assumpsit</p> <p>To the entire declaration, the defendants pleaded non assump-sit, payment and set-off, and issues being thereupon joined, the cause was submitted to a jury, who found a verdict for the plaintiffs. On the trial the defendants excepted to certain decisions of the presiding judge. The plaintiffs offered in evidence, to support the first and second counts of the declaration, the notes above ■set forth, to which the defendants objected, but their objection was overruled, and the notes allowed to go to the jury. The plaintiffs then proved that the defendants were the agents of the “New Orleans and Mobile mail line;” that they ordered the work to be done by the plaintiffs, and after it was done, agreed to pay for it; and it was not until such a promise was made, that the plaintiffs would deliver it.</p> <p>It was proved that when the plaintiffs handed their account to ■the defendants for settlement, the latter refused to give their own note, but gave the notes of the « New Orleans and Mobile mail line,” which were accepted in payment. There was no evidence that any effort had been made to collect the notos of the mail line, and the plaintiffs had retained them in their hands ever since they received them. The court charged the jury, that if the defendants ordered the work, and promised to pay for it, the plaintiffs were entitled to recover in this action.</p> <p>The defendants moved the court to charge the jury, that if they believed the defendants refused to give their individual notes when the settlement was made, and the plaintiffs received the notes declared on in payment, the plaintiffs are not entitled to recover. That if the jury believe that no effort was made to recover the notes of the “ New Orleans and Mobile mail lino,” and they, were not returned or offered to be returned to the defendants until the trial, the plaintiffs cannot recover. Which charges the court refused to give: and thereupon the defendants excepted to the admission of the evidence, and to the charges given and refused.</p>

This was a proceeding against the sheriff of Marengo, and his sureties, suggesting that the sheriff had made a false return upon an execution issued in favor of the Bank. A notice issued and was served on several of the sureties, but not upon the sheriff.

Writ af Error to the Court of Chancery for the first District of the Southern Division. This bill was filed in December, 1837, and seeks to enforce an equitable lien on certain real estate.

Wkxt of Error to the County Court of Tuskaloosa. This was a summary proceeding by notice and motion, at the suit of the defendant in error, against the plaintiff, as the acceptor of a bill of exchange. The cause was tried on the pleas of non assumpsit, payment, and set off. On the trial, the defendant excepted to the ruling of the presiding judge.

<p>1. The endorsement on the writ cannot he looked to to show that the action was on a lost note.</p>

<p>1. The dismissing of a suit as to one of three joint and several obligors, after scr. vice of process on all, and before any defence personal to that one is pleaded, is a discontinuance of the whole action.</p>

WRIT of Error to the County Court of Dallas. The defendant in error declared in assumpsit, against the plaintiff, on a promissory note for the payment of four thousand four hundred and seventy dollars, made by plaintiff and William C, Woods (who was not sued.) The defendant below pleaded in abatement, that William C. Woods made the note declared on ns principal, and himself as his surety; that since the same became due and owing, his principal died, and William G. Hale,…

<p>ERROR to the Circuit Court of Franklin.</p> <p>This action was brought by the defendant in error as assignee, against the plaintiff in error as maker of a promissory note, of which one J. Weatherby was payee.</p> <p>The defendant pleaded that the note sued on was executed by bim as the agent of the Tuscumbia, Courtland and Decatur Rail Road Company, and for slaves hired for the use of the company, and was taken, and accepted by the payee, as the note of the company. The plea was verified by affidavit. To this plea there was a demurrer, which the court overruled, and the plaintiff- took issue on the plea. Upon the trial, the plaintiff" offered in evidence to the jury, the note and endorsement on the back of the instrument, as follows: “ Tins note has been transferred to Mr L. M. Guy by J. Weatherby.” This being all the evidence offered by the plaintiff", the defendant’s counsel moved the court to exclude the note and the endorsement from the jury; which motion the court overruled, and the defendant excepted.</p> <p>Judgment being rendered for the plaintiff", the defendant prosecutes this writ, and assigns for error, the refusal of the court to exclude the testimony.</p>

<p>1. The third section of the act of 1835, [Digest, 621,] impliedly inhibits the issuing of an execution on a judgment then in existence, after a lapse of ton years, although one was sued out within the year and day, but never continued after-wards. And an execution issued after such a lapse of time without reviving the judgment by sci.fa. is irregular, and subject to be set aside.</p> <p>2. The giving of a forthcoming bond is not a waiver of any irregularity in the execution.</p>

<p>Whit of Error to the Circuit Court of Sumter.</p> <p>This was an action of trover, at the suit of the defendant in error against the plaintiff.</p>

EitRoit to the Circuit Court of Fayotte. The suit was commenced originally before a justice of the peace, founded on a note made by Richards, and one Simeon V. Crump, to the defendant in error. Richards alone was sued, and judgment by default was rendered against him by the justice. He appealed to tiie county court, and gave bond for the appeal, with James Rice, as security. In the county court there was a judgment against Richards and Rice for $59 44.

Weit of Error to the Circuit Court of Lowndes county. This action is detinue, for the recovery of certains slaves. On the trial, upon the general issue, the plaintiffs claimed title to the slaves under one Judge, and gave in evidence, a bill of sale from him to them.

Weit af Error to the Circuit Court of Sumter. This was an action of trover, for the conversion of a slave, brought by the defendant in error against the plaintiff. The declaration commences as follows: « William Dearman, guardian in idiocy of Jonathan C. Dearman, by attorney, complains, &c.” ; and counts upon the possession of the ward, and conversion by the defendant previous to the time when he was declared an idiot, and concludes to the damage of the ward.

<p>1. A judgment rendered for a larger sum than is found duo by the jury, on a special verdict, cannot be supported.</p> <p>2. Upon a failure to return an execution, the sheriff becomes liable for the amount of the judgment.</p>

<p>1. A notice to a sheriff that a motion will be made against him and his sureties, for failing to pa^r over a sum of money collected upon an execution, is sufficient 1 when it identifies the execution with certainty, and states the time when it issued and was placed in the sheriffs hands for collection; the receipt of the money upon it previous to its return day; that the money was demanded by competent authority, and refused, with the time when the demand was made; and also informs the sheriff that a motion will be made against him and his sureties, on a certain day or term of the court, forthe sumsorefused to be paid, withthe damages allowed by statute.</p> <p>2. In a motion against the sheriff and his sureties, when he is served with notice, thehond is in no way essential, yet it may bointroduced in evidence, to show he was in office, when he received the money, and when competent, as evidence, may be established by the certificate of the clerk of the court, in whose custody it is placed by law.</p> <p>3. Under the statute which requires that the appointment of an agent shall be indorsed on the execution, when the plaintiff does not reside in the county to which it goes, or shall bo made in writing, the sheriff may refuse to pay until such evidence is furnished him, but he waives this either by paying a part of the money, or in any other manner, recognizing the agency.</p> <p>4. The sheriff is not competent to determine that one execution shall be set-off against another when he has one in favor of, and another against the same person.</p> <p>5. Where the active interest in an execution has been assigned by the plaintiff, his assignee is authorised to use the name of his assignor in a rule against the sheriff and his sureties.</p>

Whit ofErrortothe Circuit Court of Pike. This was an action of assumpsit, on a promissory note, at the suit of the defendant in error, against the plaintiff and one Wilkinson. The writ was executed on the former, and returned ‘not found,’ as to the latter; the declaration pursues the writ without noticing the defect of service thereof; and the judgment is rendered against the plaintiff alone, without expressly discontinuing the suit as to Wilkinson.

<p>ERROR to the County Court of Perry.</p> <p>This proceeding was commenced hr the court below by the defendant in error, by original attachment, as endorsee of a note made by Conklin & Moore to White & Richards.</p> <p>The affidavit recites that the defendant is a non-resident, but does not state that the ordinary process of law cannot be served on the defendant.</p> <p>The bond is in the usual form, except that it omits to state against whom the attachment is sued out.</p> <p>The plaintiff having declared in debt, the defendant appeared, by his attorney, and moved the court to quash the attachment; which the court refused, and thereupon the defendant pleaded,</p> <p>1. Non assumpsit, and two special picas.</p> <p>2. Actio non, &c. because he says that at the time of suing out the attachment in this case, and from thence hitherto, John M. Moore, one of the co-partners of the firm of Conklin & Moore, the makers of the promissory note in the plaintiff’s declaration mentioned, was and still is a resident citizen of the State of Alabama, to-wit, a citizen of the county of Talladega, and liable to the ordinary process of the law; and this defendant is ready to verify: wherefore, he prays judgment if the plaintiff ought to have or maintain his aforesaid action, &c.</p> <p>The third plea is to the same effect.</p> <p>Issue was taken on the first plea, and a demurrer filed to the second and third.</p> <p>' Hugh Davis, a garnishee, filed his answer, whereupon the court, on motion, ordered that the garnishee be restrained from paying over said money until the further order of the court.</p> <p>The court overruled the demurrers to the second and third pleas, and the jury having found the issue on the first plea, for the plaintiff, judgment was rendered against the defendant.</p> <p>Pending the trial a bill of exceptions was taken, from which it appears that the plaintiff offered in evidence, and read to the jury, a promissory note to the following effect:</p> <p>New-Yorlt, 22 Sept. 1836.</p> <p>Six months after date, we the subscribers, of Gainesville, Ala., promise to pay to the order of Messrs. "White & Richards, one hundred and ninety-seven dollars eighty-one cents, at the Branch of the Bank of the State of Alabama, at Mobile, Alabama, value received.</p> <p>Conklin & Moore.</p> <p>And also read the endorsements on the same, as set out in the plaintiff’s declaration, which being all the evidence in the cause, the defendant moved the court to charge the jury, that the note, without further proof, was not sufficient to sustain the plaintiff’s 'cause of action, but the court charged the reverse to be the law, and that the note was sufficient to authorize a verdict without further proof. To which the plaintiff excepted.</p> <p>The assignments of error are,</p> <p>1. The refusal of the court to quash the attachment, for the insufficiency of the affidavit and bond.</p> <p>2. The judgment was rendered on a verdict found on an immaterial issue.</p> <p>3. The judgment on the demurrer to the special pleas.</p> <p>4. That the declaration was defective, and was reached by the demurrer.</p> <p>5. The matter of the bill of exceptions.</p> <p>cited Aik. Dig. 39 ; Minor’s Rep. 196 ; 1 Porter, 15 ; 3 ib. 226 ; 8 ib. 445 ; 9 ib. 196, 446, 456, 493 ; 1 Ala. Rep. N. S., 129, 182.</p> <p>cited 6 Porter, 365 ; 1 Ala. N. S. 134, 235; 7 Pqrtcr, 483,486 ; 9 ib. 320; 2Ala.N. S. 326; 3ib. 250; 1 ib. 592 ; 2 Stewart, 410 ; 3 ib. 480, 192 ; 6 Porter, 352 ; Minor, 252.</p>

Wis.it of Error to the the Gircuit Court of Jackson county. Trover, by the plaintiff, as the administrator of HenryNorwood. At the trial, he proved property in the slaves in his intestate, and their sale by the defendant. The defendant justified the sale under four executions, directed to him as coroner, under which he seized and sold the slaves.

Weit of Error to the Circuit Court of Perry. The testator of the defendants in error recovered a judgment in-the Circuit court of Perry against Charles B. McKinney, Walter A. Parrish and Henry Yarborough, as partners trading under the style of McKinney, Parrish & Co., and Wilson McKinney and Charles B. McKinney, partners trading under the style of W. & C. B. McKinney, for the sum of two thousand two hundred and seventeen dollars, besides costs.

This was an action commenced by the defendant in error, against the plaintiff in error, and one Obadiah Mayfield, as joint makers of two promissory notes, for thirteen hundred and twenty dollars, each. Mayfield having died, the suit was abated as to him. Pending the trial, a bill of exceptions was taken by the plaintiff in error, by which it appears that the plaintiff produced and read in evidence, the notes declared on.

Writ of Error, allowed by the Chief Justice, to the Circuit Court of Benton county The plaintiff in error was the prosecutor of a certain individual indicted for petit larceny. He was acquitted of the charge, and the couid, after rendering its judgment on the verdict of not guilty, proceeded, on the motion of the counsel for the person thus discharged, to render judgment against the prosecutor for the costs, for which the execution was directed to issue.

Writ of Error to the Circuit Court of Lowndes. The plaintiff in error was summoned as a garnishee, at the instance of the defendants, to state on oath what he was indebted, &c. to J. H. McMichael & Co., against whom the defendants in error had recovered a judgment in the Circuit court of Lowndes.

Glair. This was a trial of the right of property. Prom the testimony it appeared that a writ offieri facias against the defendant in execution was issued, and came to the sheriff’s hands, whilst the defendant in execution was the owner of the mare, which was subsequently levied on, but that before such levy he married and became the head of a family.

Weit of Error to the Circuit Court of Madison county. Action of debt, by Horn & Bouldin against Moore. On the summons is the following endorsement: Service acknowledged; G. Moore. Teste, Wm. H. T. Brown, clerk. At the proper term of the court, a judgment by default was entered against Moore, but there is nothing in the judgment entry to show that any proof was then, or previously made of this acknowledgment of service.

<p>Weit ofError tothe Circuit Court of Pony.</p>

This was a distress for rent, in .the city of Mobile, commenced by the defendant in error, against the plaintiff in error, as administrator of Edmund Bacon, deceased. Affidavit having been made by the defendant in error, that Bacon was indebted to him for the rent of a house in Mobile, in the sum of five hundred dollars, and that the plaintiff’in error was his administrator, the justice issued a distress warrant, directed to the sheriff, and returnable to the' circuit court.

EkkoR to the Circuit Court of Montgomery. This cause is presented on questions reserved for the opinion of this Court, as novel and difficult.

WitiT of Error to the County Court of Dallas; This was an .action of assumpsit, by the plaintiffs nr^3^EEngaiast’ the defendant, on three several promissory notes, for the sum of eighteen hundred dollars each, dated the 15th September, 1837, .and payable on the first day of March, 1839, ’40 and ’41, to the plaintiff’s testator. The defendant pleaded non assumpsit, payment and set-off, and several other pleas, on which the plaintiff took issue.

<p>Ehrok. to the County Court of Morgan,</p>

Whit of Error to the Circuit Court of Montgomery county. This action is by the Bank, against the defendants, as parties to a bill of exchange. The defence relied on was, that its purchase was unwarranted by the charter of the Bank, and its consideration illegal and against public policy.

Weit of Error to the Circuit Court of Lowndes. This was an action of assumpsit, brought by the defendants in error against the plaintiff, as one of the partners in a late mercantile concern, doing business under the style of Jacob H. McMi-chael & Co. The declaration contains all the common counts ; and the cause was tried by jury as on issue joined, (though there is no plea in the record,,) and a verdict was found for the plaintiffs below for the sum of fifteen hundred and…

Error. to the Circuit Court of Mobile. _ Assumpsit, by the plaintiff against the'defendant in-error. This cause had been before this court previously. [3 Ala.

Writ of Error to the Circuit Court of Dallas county. Action of detinue by Wallace, against Thomas, to recover a slave. Pleas, non dstinct and the statute of limitations. . Held: would bar the trustee, and this although during such time West and his wife should claim the property as their own, exercise over it the usual acts of ownership, and then sell it to a bona fide purchaser without notice.

Writ of Error to the Circuit Court of Pike. Held: that though said deed might have been‘made to defraud creditors and purchasers, yet it could not thus, at law, be collaterally impeached by the plaintiff) and excluded all rebutting evidence; and the plaintiff excepted to the exclusion as error, and reserving his right to prosecute his writ of error, declined offering more evidence,…

<p>1. No execution can issue on a decree of the County Court, rendered in favor of “ the legatees, of Philip Joseph,” nor can a writ of error bo prosecuted against them by that appellation, it not appearing in the record who the legatees of Philip Joseph are.</p>

Whit of Error to the Circuit Court of Montgomery. This was a proceeding by notice and motion, at the suit of the defendant in error, against Reid and his sureties, for the failure of the former to pay over a certain sum of money collected upon a sale of perishable property, levied on by an attachment at the instance of the real defendant in error, against I. R. Thacker.

<p>1. On a bill filed to foreclose a mortgage, it appeared by the bill that there was a prior incumbrancer, who was not made a party; the answer denied the existence of the prior incumbrance, and alleged that it was discharged by payment before the filing of the bill, but demurred to the bill for want of proper parties : Held, that as the answer showed that the prior incumbrance was discharged, there was no necessity to make the prior incumbrancer a party, notwithstanding the allegation in the bill, but that a general demurrer to the bill without answer, would have been sustained.</p>

<p>Wiut of Error to the County Court of Madison.</p> <p>This was a summary proceeding by notice and motion, at the suit of the Bank, against the plaintiffs in error. The notice describes the indebtedness to be a promissory note made by Jordan, as executor ofG. J. Weaver, for the payment of three thousand one hundred and fifty dollars, to the order of John C. Weaver, by the latter indorsed to John W. Weaver, and by him to the plaintiffs below. The judgment entry refers .to the notice as being produced to the court in proof of notice to the defendants, and describes the note as having been made by Jordan, as executor-, &c., payable to the order of John C. Weaver, “ indorsed by the said John C. Weaver to John-W. Weaver, and by said John C. Weaver to the said Branch Bank.” The certificate of the President of the Bank is recited in the judgment thus “and Stephens. Ewing, President of said Branch Bank, producing here in open court his certificate as President- of said Branch Bank.” The notice was executed on Jor-dan and John W. Weaver and against them only has judgment been rendered.</p>

' This was an action of assumpsit, by the defendants in error as endorsees against the plaintiffs in error, as endorsers of a promi s-sory note made by King, Upson & Co. for $2,442 44.

<p>1. Where a commission directs the deposition of a witness to taken on a day designated, within certain hóurs, and the commissioners certify, that pursuant to the annexed commission, they have caused the Witness to come before them, between the hours therein stated, &c.: Although their certificate is not dated, it mtís't be inferred, that the witness was examined on the day stated in- the commission.</p>

<p>EmioR to the Circuit Court of Chambers.</p> <p>Assumpsit byAhc plaintiff against the defendant in error.</p> <p>On the trial, it appeared in testimony, that the defendant’s intestate married the daughter of the plaintiff’s testator; that the plaintiff’s testator, died, and also the defendant’s intestate without having reduced into possession, the distributive share of his wife, in his father’s estate. That plaintiff, under the belief that the defendant as administrator, was entitled to the share of his intestate’s wife in her father’s estate, paid it over to him, who ap-. plied the money in payment of a tract of land, contracted for by his intestate; that the estate has been declared insolvent, the land sold as part of the assets, and that the widow had agreed to take a part of its proceeds in lieu of dower, and it had been so assigned in lieu of dower.</p> <p>The court charged, that upon these facts the plaintiff was not entitled to recover. To which the plaintiff excepted, and now assigns the charge of the court as error.</p> <p>cited 18 Wend. 319; 7 Paige, 137; 2 McCord’s Ch. 455; 1 Hill’s C. R. 251; Cook, 374, 467; 4 Littell, 125; 1 Edwards, 467; 1 Peters, 15; 2 J. C. R. 51; 1 Stew. 81; 2 Har. & Johns. 474, 500.</p>

.Weit of Error to the County Court of Mobile. The judgment entry in this cause, shows that this was a proceeding by notice and motion, at the suit of the defendant in error, under its charter, to recover the amount due on a promissory note, which had been discounted by the Bank.

<p>ERROR to the Circuit Court of Marengo.</p> <p>The plaintiff in error having obtained a judgment and execution against Samuel Pickering, ■which was levied on a negro, affidavit was made, and the property claimed by the defendant in error as trustee, and upon issue joined, the jury found for the claimant.</p> <p>Pending the trial a bill of exceptions was taken, from which it appears that the claimant introduced a deed, dated 8th April, 1840, executed by the defendant in execution to the claimant, in trust, to secure certain debts therein mentioned, which was also executed by the trustee and the cestuis que trust. By the deed, the defendant in execution conveyed a considerable quantity of land and slaves, horses, mules, oxen, cattle, sheep and hogs, wagons and plantation utensils : also, fifteen hundred bushels of corn, one thousand pounds of fodder, and six_ thousand pounds of bacon, « and all the right, title, claim, and control of the crops to be raised the present year- on the plantation on which he now resides, and hereby abandons all claim, right, title, and interest to the same, to the said trustees and their assigns.”</p> <p>It was further stipulated, that the maker of the deed should remain iu possession of the property before mentioned, until the 1st March, 1841, and until .ho gives possession to the said trustees, alter making default in the payment of the debts before mentioned. The debts secured by the deed were due and becoming due during the ensuing year, and on a considerable portion the beneficiaries of the deed were sureties.</p> <p>• It was “ further agreed that if alter selling enough to pay and satisfy the said William J. Powell and the said Richard R. Pickering, and the debts in which they or either of them are his securities, there shall be any of the property herein before mentioned left, it shall bo and remain the property of the said Samuel Pickering, all the purposes of the trust being satisfied.”</p> <p>The deed was acknowledged before a justice of the peace by all the parties to it, on the 27th April, 1840, and recorded on the same day in the clerk’s office of Marengo county court.</p> <p>The claimants offered to read the deed upon the certificate of acknowledgment, without calling the subscribing witnesses; to which the plaintiff objected, but the objection was overruled, and the plaintiff excepted.</p> <p>The plaintiff next objected to the reading of the deed, upon the ground that there were interlineations and erasures, apparent on its face, not shown to have been made before the deed was executed, which the court also overruled, and the plaintiff excepted.</p> <p>The plaintiff further objected to the reading of the deed, because by its terms, there was a substantial benefit reserved to the grantor, which rendered it fraudulent and void ; which was also overruled, and the plaintiff excepted.</p> <p>The proof at large, adduced upon the trial, conduced to show, that the debts secured by the deed were the bona fide debts of Samuel Pickering, and that these debts, upon which the cestuis que trust, his son and son in law were his sureties, had been taken up and paid oiF by them. That the deed conveyed the whole property of Samuel Pickering. That a short time alter the law day of the deed, the property Was exposed to sale by the trustees, which sale was open and fair, and at which the property sold at good prices. That at the sale, the cestuis que trust became the purchasers of nearly the whole property, real and personal. That the crop of 1640 was marked in the name of the trustees, sold by them, and the proceeds appropriated to the purposes of the trust. That Samuel Pickering and his wife were elderly persons, and that his wife, for about two years, had been in a bad state of health, and that he and his wife had resided on the premises from the date of the deed to the present time.</p> <p>The counsel for the plaintiff requested the court to charge, that the fact of Samuel Pickering having resided upon tl e premises from the dale of the deed continually to the present time, was one from which they might infer fraud in the deed, which charge the court refused, and the plaintiff excepted.</p> <p>Judgment being rendered for the claimant, he prosecutes this writ, and assigns ibr error the matter of the bill of exceptions.</p> <p>contended, that the deed was i-ead without any legal proof of its execution, — [2 Ala. Rep. 203] and that it shoutd not have been read without proof that the erasures and interlineations were made before it was executed. [2 Wendell; 555.]</p> <p>That the deed, upon its face, is fraudulent and void, because it secures to the maker a substantial benefit. [11 Wendell, 187.] Because it conveys perishable articles which are left in the possession of the maker. [4 Yerger, 541.] Because many of the debts secured by the deed, were past due when it was made, and the maker was entitled to the possession of the property for near* ly a year after.</p> <p>The charge asked for should have been given by the court; the possession after the sale, was clearly a badge of fraud.</p> <p>If the deed is void in part, it is void in Loto.</p> <p>maintained that as the deed included lands, as well as personal property, it was properly admitted in evidence upon the probate. [Aik. Dig. 88.]</p> <p>As to the objection on account of erasures, he cited 12 Viner’s Ab. 58 ; 1 Peters, 369 ; 1 Dali. 67 ; 5 Har. & Johns. 36.</p> <p>As to the objection that perishable property was conveyed, he denied that this was like the case cited from 4th Yerger. PI ere the profits of the farm were conveyed, and the provisions, 'corn, &c. was necessary to make a crop. He cited 11 Wendell, 240, as in point; also, 2 Joints. C. R. 579 ; Cowper, 566.</p>

Wmt of Error to the Circuit Court of Shelby. This was an action of detinue, brought by the plaintiff in error, against the defendant, for the recovery of a female slave, named Mahala, aged about twenty-two years, and her two infant children, the one about two years, and the other about one year old. The cause was tried on the general issue, and a verdict returned for the defendant, on which a judgment was rendered against the plaintiff for costs.

<p>ERROR to the Chancery Court at Cahawba.</p> <p>The bill in this case was filed by the defendants in error against the complainant and. wife, for an account of certain slaves and other property, conveyed to them by the plaintiff in error, by the following deeds:</p> <p>Know all men by these presents, that, I, Tristram Bethea, of the district of Marion, South-Carolina, in consideration of the friendship and intimacy, love and affection which I have and bear unto John McColl, Solomon S. P. McColl, Daniel T. McColl, Philip B. McColl, and Tristram B. McColl, minors and sons of Daniel T. McColl, and also for divers other good causes me thereunto moving, have given, granted, &c., to the above named John, &c., the following slaves-and other property, viz: Tina, a negro woman slave, Edmund,_ a negro man, and- Matilda, a negro girl; also one horse, one mare, and cart, two feather beds, two counterpanes, eight white sheets, four bed covers, two bed quilts, and four pair of blankets, to have and to hold the said negro slaves, and other property, unto the said John, &c. to the only proper use and behoof of the said John, &c„ their heirs and assigns, against me the said donor, my heirs and assigns ; all of which said negroes and other property, I, the said Tristram Be-thea have put the said donees in possession of, by the delivery thereof. And I the said Tristram Bethea, as one of the considerations of the grant, require the said donees to keep the said ne-groes and other property together, in the possession of their mother, Margaret McColl, for the use and benefit of the said donees until Tristram, the youngest, shall arrive at the age of twenty-one years. In testimony, whereof, &c.</p> <p>Tristram Bethea, (Seal.)</p> <p>Upon the same day the plaintiff in error executed another deed in all respects like the preceding, and with the same condition, by wbich he conveyed a negro slave named Henry, to Tristram' and Philip B. McColl, two of the donees previously provided for.</p> <p>The bill alledges that the said-property came to the possession of the mother of the complainants ; that their father soon after died, and subsequently the plaintiff in error married the widow. The bill also charges various acts of mismanagement of the trust fund; that the trustee has exchanged one of the slaves for another, and taken the title in her own name; that with the proceeds of the fund she has purchased a tract of land and two negro girls, and taken the titles in her own name ; that the trustee and her husband claim the property as their own, refuse to educate them, &c.; with other charges of a like nature.</p> <p>The prayer of the bill is for an account, and the appointment of another trustee. John and Philip, two of the donees, have departed this life, and the bill is filed by the remaining three, two of whom are minors.</p> <p>The plaintiff in error, the husband of the former Margaret Mc-Coll, answered the bill, admitted the execution of the deeds, the design of which, he insists, was to provide for a destitute family, and to protect the property from being taken for the debts of Daniel T. McColl, who was insolvent. Pie insists that the labor of the slaves was not more than sufficient to support the family; that the slaves and land were purchased by the industry and economy of the trustee, aided by him; that the children were supported and educated, &c. from the labor of the slaves.</p> <p>The mother of complainants has not answered the bill; a decree pro confesso, was taken before the register for the failure of the defendants to answer, but was afterwards set aside.</p> <p>The chancellor referred the cause to the master to state an account, which he accordingly did, finding that the eighty acres of land and the two slaves mentioned in the bill were purchased with the proceeds of the trust fund; that the trustee was indebted to the general trust fund $1916, and to Tristram McColl individually. $187 75; for which a decree was rendered. .</p> <p>Many exceptions were filed to the master’s report, which were overruled, but need not be here set out, as they are explained in the opinion of the court.</p> <p>The assignments of error, are,</p> <p>1st. Mrs. Bethea has not answered, nor is there any decree pro confesso against her.</p> <p>2. Administration should have been granted on the estates of John and Philip McColl, and their legal representatives, parties to the bill.</p> <p>3. The trustee was not liable to an account for profits before the youngest child came of age.</p> <p>4. In overruling the exceptions to the report.</p> <p>5. The bill should have been dismissed.</p>

<p>Writ of Error to the Circuit Court of Tallapoosa.</p> <p>The defendant in error and his partner, since deceased, caused an attachment to be issued against "the estate of Salem C. Gar•rett, returnable into the circuit court of Tallapoosa; which attachment was levied on a stock of merchandize, to which the plaintiffs in error interposed a claim, in the manner prescribed by ■the statute, with a view to a trial of the right of property, and executed a bond with William C. Morgan and John W. Butler, their sureties, payable to the sheriff of Tallapoosa, which bond is dated on the 20th December, 1837, conditioned to pay to the plaintiffs in attachment “all damages, which the jury, on the trial of the right of property, may assess against them, in case it should appear that such claim was interposed for the purpose of delay.” At the term of the circuit court, holden in the spring of 1838, a motion was made to dismiss the claim of the plaintiffs in error, on the ground, that it was not regularly presented, across which, as noted on the motion docket, a memorandum was written as follows: “Motion discharged, on giving sufficient bond.” The claimants executed a bond, bearing date the 5th of April, 1838, together with the same sureties who joined in the first, payable to the plaintiffs in attachment, conditioned to «have the goods, wares and merchandize forthcoming to answer the judgment of the court, if the same shall be found liable to the attachment, and pay and satisfy all such costs and damages as shall be recovered for putting in the claim for delay.”</p> <p>A third bond is found in the transcript, bearing date the 1st day of April, 1839, payable to the sheriff of Tallapoosa, and executed by the claimants, with John W. Butler, L. P. Alford and John Morgan, as their sureties. By what authority this bond was filed in court, it does not appear.</p> <p>■ The cause was submitted to a jury upon an issue made up to try the light of property in question, who found the same, subject to the attachment which had been levied thereon, and estimated the value of each article of merchandize separately. In addition to which, they found that the claim had been interposed for delay, and hi consideration thereof, assessed the plaintiffs damages at one hundred and fifty-nine 64-100 dollars, “that being eight per centupon the amountof the plaintiff’s judgment on his attachment.” On this verdict a judgment was entered condemning the property to the satisfaction of the plaintiffs attachment as well as for the recovery of the damages with costs.</p> <p>On the trial, the claimants excepted to the ruling of the presiding judge. From the bill of exceptions, we extract the following as the points therein presented for the decision of this court.</p> <p>■1. The claimants offered William C. Morgan as a witness, who was objected to by the plaintiffs, because he was a surety of the claimants in their claim bond, which bond was the one first above recited. The claimants then produced the bond thirdly above recited, which appeared by the sheriff’s indorsement thereon, to have been approved by him. There was no evidence how this bond came into court; the clerk could not tell, but did not believe it was ever received by the court. The memoranda made at the Spring term of 1838, which has been already stated, was produced, and on this state of facts, the claimant’s counsel asked the court to permit the witness to testify, but the court decided that he was incompetent; and thereupon the claimants excepted.</p> <p>2. The attachment and indorsement thereon of the levy were produced, but no judgment or other proof of the plaintiffs demand was shown. It was shown, that at the time of the levy, the goods were in possession of the claimants, and that the sheriffhad summoned the claimants to answer as garnishees. Upon this state of facts, the claimants counsel asked the court to charge the jury, that the issuance of- the attachment and levy, was not sufficient evidence of an indebtedness by the defendant in attachment to authorise the plaintiffs to recover. This charge was refused, and the court charged the jury, that the attachment and levy was sufficient to authorise the trial of the right of property; and thereupon the claimants excepted.</p> <p>3. The claimants then proved, that a note executed by them to the defendant in attachment, in part payment of the goods levied on, was, after the issuance and levy of the attachment received by one of the plaintiffs in attachment, in part payment of their debt against him, and that it was subsequently transferred by the plaintiffs to one Thornton, as collateral security for a debt due by them to him. It was further proved, that the makers of the note were insolvent. Upon this evidence, the claimants counsel asked the court to charge the jury; first, if they were satisfied from the evidence, that the plaintiffs received the note of claimants which they had given to the defendant, in part payment for the goods in controversy, in payment of the note of the defendant, due to them for the same goods, with a knowledge of the circumstances under which the claimants made the note to the defendant, that the plaintiffs must be considered as having recognized the sale of the goods, made by the defendant to the claimants, and were estopped from insisting upon its invalidity on the ground of fraud. Second, if the jury believed from the evidence, that the plaintiffs received from the defendant in attachment a note made by the claimants for the goods in controversy, not knowing what was its consideration, but after being informed of it, retained the note without any offer to return it, then their recognition of the contract between the claimants and defendant in attachment will be presumed, and they, the plaintiffs, cannot bo allowed to show that it is fraudulent. These charges the court refused to give, but charged the jury, that in determining whether the plaintiffs, in receiving the note in question from the defendant intended to affirm the contract of sale, between the claimants and defendant, they might consider the taking of the note by the plaintiffs from the defendant, also the retaining it by the plaintiffs with other circumstances of the case, and also might inquire whether the plaintiffs, when they thus received the note in question, intended to affirm the contract between the claimants and defendant; or whether the taking or retaining the same, was for the better security of their debt. To the refusal to charge as asked, and to the charge as given, the ..claimants, by their counsel, excepted.</p> <p>Gunn and Belser, for the defendants in error. Morgan was a competent witness, and should have been permitted to give evidence for the claimants. The bond first executed by the claimants, and to which the witnesses name appears, is not good as a statute bond, because it does not conform to the act of 1828. [Aik. Dig. 160, 171‘. 1 Ala. Rep. N. S. 611; 2 Id. 203, 378.] It is not good as a common law bond, because taken, without legal authority, to the sheriff instead of the plaintiff in attachment. [2 Ala. Rep. N. S. 144,204.]</p> <p>If the last bond to the sheriff, is to be regarded as regularly in court, it is clear that it superseded the first, and the witnesses competency is unquestionable.</p> <p>The plaintiffs in attachment should have established their debt by proof, as they had not recovered a judgment; otherwise they might defeat the contract between the claimants and defendant without making out an indebtedness to them, and this, although the contract, even if fraudulent, would be valid between all persons but creditors. [See 3 Mason’s Rep. 378.]</p> <p>If the plaintiffs in attachment received of the defendant in part payment of a demand against him, a note which the claimants had made to the latter in payment of the goods in controversy, they, (plaintiffs) must be taken to have affirmed the sale, if they acted with a knowledge of the facts. And the several charges prayed upon this point, should have been' given to the jury, and that given is erroneous. ' [2 Stew’t Rep. 479; 5 East’s Rep. 449; 4 Mass. Rep. 502; 12 Pick. Rep. 307; 4 Greénl. Rep. 306; 4 Maine Rep. 364; 1 Hill’s Rep. 305.]</p> <p>The judgment is irregular in not showing the amount of the judgment in attachment, if any has been rendered; and for any thing appearing it may be less than the value of the goods condemned to its satisfaction.</p> <p>Even admitting that the first bond was taken pursuant to the statute of 1828, yet it is good at common law, añd this will be sufficient to disqualify Morgan as a witness. [2 Stew’t Rep. 509; 2 Porter’s Rep. 493; 6 Id. 414; 1 Ala. Rep. N. S. 316; 3 Id. 593.] The bond dated in 1838, is in proper form, is executed by Morgan, and should be considered as regularly in court.</p> <p>The bill of exceptions should show the pertinency of the charges asked and refused. [2 Stew’t Rep. 38; 1 St.ew’t & P. Rep. 71; 2 Porter’s Rep. 29; 1 Ala. Rep. N. S. 517; Id. 582.]</p>

This bill was filed by the defendant in error, to vacate, for fraud, a deed made by the defendant Cummings, to defendant Cooper, on the 19th January 1839; and also a deed made two days afterwards by the former to the latter, conveying all the property, real and personal, dioses in action, &c. of the grantor, in trust for the payment of the creditors of the assignor.

<p>1. A plea by a sheriff justifying the seizure of property under process of attachment must allege that the writ was - returnable, to what court, and that it was in fact returned. But it may, perhaps, be permissible to excuse a return by proper averments.</p> <p>2. Where the replication or rejoinder, &c., contains matter which does not support and fortify it, and which is consequently not pursuant to it, there is a departure in pleading, of-which the opposite party may avail himself on demurrer.</p> <p>3. The defendant in an action of detinue pleaded the general issue, and several special pleas; to the latter picas there were replications, rejoinders and sur-rejoin-dersjfthe defendant demurred to the sur-rejoinders and his demurrers were sustained; and the plaintiff .¡declining to plead further, the court ordered a non-suit; Held, that the non-suit was irregular, and the plaintiff should have been allowed to submit his case to the jury on the general issue.</p>

<p>ERROR to the Tallapoosa Circuit Court.</p> <p>Assumpsit by the defendants in error, againt the plaintiffs in error, on a promissory note. The defendants pleaded non as-sumpsit, and a special plea, that the note was given without any consideration. The plaintiff took issue on the first plea and replied to the second “ that the note declared on was not given without any consideration.” To this replication the defendant demurred, and the court overruled the demurrer.</p> <p>On the trial of the issue, the plaintiff offered in evidence the note sued on, and rested his case, and this being all the evidence the defendant demurred to it, and the court rendered judgment on the demurrer for the plaintiff.</p> <p>These matters are assigned for error.</p> <p>cited, Gould on Plead. 344; 3 Ala. Rep. 316.</p> <p>was stopped by the court.</p>

<p>Wiiit of Error to the County Court of Clarke county.</p> <p>Assumpsit on a promissory note, dated 15th April, 1836, payable twelve months after date, to the order of Darwin Gibson, negotiable and payable at the Bank of Mobile. The note is signed by Forward, and endorsed in blank by Gibson. The suit is by Marston as indorsee.</p> <p>At the trial, under the pleas of the general issue, and failure of consideration, the defendant offered to read the depositions of certain witnesses, taken under the act authorizing depositions to be taken when the witnesses reside more than one hundred miles from the place of trial. The plaintiff objected, on the ground that the witnesses did not reside so far from the place of trial; and the proof was, that from Macon, where the trial was had, to Mobile, where the witnesses resided, was less than one hundred miles; that there was a road sometimes used, by which the distance was not more than ninety-five miles, but the usual and common route was by the river, by which the distance was more than one hundred miles. The court overruled the objection, and held that the distance was to be computed by the usual travelling route. The defendant offered to impeach the consideration of the note, by showing that it was executed to Gibson, to be used only for the building of a boat intended to navigate the Alabama river. The plaintiffobjected to this evidence unless the defendant proved that the plaintiff had notice of the failure of the consideration before he became the holder of the note. The objection was overruled iand the evidence admitted.</p> <p>The plaintiff then asked the court to charge the jury, that unless he had had notice of the failure of consideration of the note, before he became its holder, he was not affected by it. This was refused, and the plaintiff excepted to the several rulings against him.</p> <p>It is now assigned that the court erred in these several matters.</p>

<p>1. A plaintiff in execution stated to the court in writing, that the sheriff had collected of a defendant a large sum of money on executionsinhishands, (some of which were in favor of the plaintiff,) and concluded with an affirmation that the money should be applied to the satisfaction of his judgments and executions Held, that although the plaintiff might have moved against the sheriff, for the failure to pay over the money upon his executions, yet upon the suggestion made, no judgment could be rendered against the sheriff, on which a writ of error could he sued out.</p>

In this case, a bill was filed by Cheatham, in the court of chancery, holden for the sixth chancery district of the northern division, to enjoin a judgment at law, obtained against him by Young, in the circuit court of Lauderdale.

<p>1. In a qid tam action against the clerk of the county court for the penalty for is. suing a license to marry a female under the ago of eighteen years, without the consent of the parent or guardian, the plaintiff is not hound to prove the negative averments of the declaration that no consent to the marriage was given.</p> <p>2. The record of the consent of the parent or guardian which the clerk is, hy the statute, required to make, may be given in evidence hy him, to show prhna facie that consent was given.</p> <p>3. A memorandum shown to have been made by the father of a child, of the time of its birth, would, after his death, be evidence of the date of its birth, as a de_ claration ante litem motam; but not if the father wore living and able to testify.</p> <p>4. If the father by bringing a suit, in which it becomes necessary to prov.e the age of the child, is thereby incapacitated from being a witness, he cannot introduce the secondary evidence of his own declaration of the time of its birth, although he may bo the only witness who can prove the fact.</p>

Writ of Error to the Court of Chancery sitting at Talladega. The plaintiffs in error, filed their bill against the defendants, setting forth with particularity, that their testator had sold property to the defendant Isaac Dickerson, for the sum of twenty-five hundred dollars, and received in part payment, a note made by Henry Click, for nine hundred and sixty-eight dollars.

<p>ERROR to the Circuit Court of Autauga.</p> <p>This was an action of assumpsit, brought by the plaintiffs against H. M. Northrup &Co. on a promissory note given by the defendants to the plaintiffs for the payment to them, or bearer, of two hundred and seventeen 65-100 dollars, twelve months after date. The declaration was filed against H. M. Northrup alone, and the action discontinued as to Andrew B. Northrup, on whom process was not served. The defendant pleaded, in short, set-off, non-assumpsit, and payment. On the trial of the cause, it appears by a bill of exceptions, that the plaintiffs introduced, as evidence, the promissory note described in the declaration.</p> <p>The defendant then offered to read, as a set-off, a note, of which the following is a copy:</p> <p>“ $100. “West Wetumpka, 13th March, 1837.</p> <p>“ Fifteen months after date, we promise to pay Francis Gray, or bearer, one hundred dollars, for value received, if not punctually paid, interest from date.</p> <p>“ Carew & Coaíes.”</p> <p>The defendant having proved that said note was made by the plaintiffs, and having proved that said last note was in possession of defendant long before the commencement of this action — the plaintiff objected to the defendant’s reading said last note, because it was not endorsed by the payee, Gray. But the court overruled the objection, the plaintiffs excepted to the opinion of the court, prosecuted his writ of error, and now assigns the following :</p> <p>There is error in said record, in the admission upon the trial, of the note made by plaintiffs, as set out in the' bill of exceptions.</p>

<p>1. If the defendant diespending an action on the case, brought to recover damages for a fraud in the exchange of horses, it cannot be revived against his administrator.</p>

Whit of Error to the Circuit Court of Tuskaloosa. This was an action of debt on a bill single, made by the defendant and George N. and Joseph H. Langford, on the 29th of August, 1838, for the payment of one thousand dollars to the plaintiff or bearer, ninety days thereafter. The cause was tried on the plea of non est factum.

This case originated before a justice of the peace, who issued his warrant against the plaintiff in error, in favor of the defendant in error, in a plea of debt, due by note for the sum of thirty dollars. On the trial, the justice gave judgment in favor of the defendant in error for the amount of the note, including principal and interest, besides costs.

Assumpsit in the court below by the defendant in error, as holder, against the plaintiff in error as endorser of a bill of exchange. On the trial, the plaintiff read in evidence the bill sued on, which was drawn by one Moses P. Walker, in favor of the defendant, for twelve hundred and fifty dollars, negotiable and payable at the Bank of the State of Alabama.

<p>Wbit of Error to the Circuit Court of Benton.</p> <p>The defendant in error declared against the plaintiffin assump-sit, as the endorser of a promissory note made by Joel D. Hicks, on the 29th June, 1839, for the payment of three hundred and fifteen dollars, one day after date. The cause was tried on the plea of non assumpsit, with leave to give special matter in evidence. On the trial, the plaintiff offered the note with its indorse-ments, which are as follows: “ I assign the within to Caleb Garrison, for value received, January 4, 1840, — E. Herndon. Also, this note is not to be sued for three months, I will stand good for the payment of the same, waiving all demands and notices. January 4th 1839. E. Herndon.”</p> <p>The defendant offered the record of a suit by the plaintiff, against the maker of the note, commenced on the 4th of March, 1840, which shewed the recovery of a judgment, and the return “ no property found,” previous to the institution of the present action. Thereupon he moved the court to instruct the jury, that under the proof they must find for the defendant, which instruction was refused, and he thereupon excepted. The jury returned a verdict for the plaintiff, and a judgment has been rendered thereon.</p>

This was an action of assumpsit, founded on a promissory note of the following tenor: 1000 Dolls. — Twelve months after date, we,-Benjamin Fuller, James K. Thompson and George H. Patillo, jointly and severally promise to pay Andrew Armstrong, Esq. cashier, or bearer, ,one thousand dollars, for value received, negotiable and payable at the Branch of the Bank of the State of Alabama, at Mobile. Credit — Benjamin Fuller, \ Signed.

This was an action of covenant by the defendants against the plaintiffs in error, upon the following instrument: « John Mackay as. principal, and Hugh McDonald as security, bind themselves, and agree to give their promissory note, payable to Dodgo, Kolb & McKay, twelve months from the date hereof, for whatever sum the abisrators, chosen this day, by Dodge, Kolb & McKay and John Mackay, to settle and determine certain matters in controversy between them, may decree, which sum…

Whit of Error to the Circuit Court of Mobile. This was an action of ejectment brought by the defendant in en-rol- for the recovery of a « certain lot of ground” situate in the city of Mobile. The defendent below was admitted to defend as the landlord of the tenants in possession, and confessing lease, entry and ouster, the cause was tried on the plea of not guilty. At the trial the defendant excepted to the ruling of the court.

<p>Euuoa to the Chancery Court at Huntsville.</p> <p>A bill was filed in the Chancery court, at Huntsville, by Reuben Chapman against Launcelot Chunn and James Linn, which charged that complainant, in November, 1839, sold to the defendant, Chunn, certain lands lying in Morgan county, for eighteen hundred dollars, payable at future periods, in three instalments, for which complainant took Chunn’s notes, and gave his bond for title, to be conveyed after full payment of the purchase money. It was further agreed that Chunn should give good personal security, who should sign said several notes, but he failed and refused to comply with this part of the agreement. It is further charged that Chunn took possession of the lands, but has made payment of no part of the consideration, and has absconded with all his property, leaving his family and the said James Linn in possession; that Linn takes the profits, estimated at the annual value of $400, and although requested so to do, refuses payment of any part to complainant, notwithstanding he has offered to credit Chunn’s notes with the amount of such payment. The bill further charges that lands have so fallen in value, that the tract sold is not now worth the purchase money; and seeks to recover rents, as w>ell as to have the lands sold, and the proceeds applied to the satisfaction of said notes. '</p> <p>The subpoena was executed on defendant Linn, but returned “ not found” as to Chunn, and the record shows no farther proceedings against him.</p> <p>Linn filed his answer, stating, in substance, that he knows nothing of the agreement between complainant and Chunn; that he found Chunn in possession, and made a contract with him, to the effect, that Chunn should furnish the land, and a certain number of hands, and that Linn should furnish certain other hands ; that they should work in conjunction, and divide the crop equally. Linn denies that he has any other interest in the land, or that he intends holding possession of the same longer than may be necessary to gather his crop ; and prays that his answer may be given the force of a demurrer tp the bill.</p> <p>No further step seems to have been taken toward preparation of the cause for final hearing; and at May term, 1842, on argument of said demurrer of defendant Linn, it was ordered by the court, that the bill be dismissed generally, at complainant’s costs.</p> <p>It is now assigned for error, that the court below erred:</p> <p>1. In sustaining the demurrer ; and</p> <p>2. In dismissing the bill.</p>

<p>1. The act of 31st December, 1841, the more speedily to collect debts against corporations, does not have a restropective effect so as to authorise a suit commenced before its passage.</p> <p>2. When the stockholder of a corporation is garnisheed as a debtor of the company, and answers that he has paid all the calls made by the President and Directors of the company upon him, he cannot be made responsible upon the residue of Ids stock, upon which no calls have been made, upon the general law of garnishment.</p>

<p>Wkit of Error to the Circuit Court of Mobile.</p> <p>This Avas an action of ejectment brought by the defendant in error for the recovery of the possession of certain real estate in the city of Mobile. The defendant below, upon the receipt of the usual notice from the casual ejector, entered into the rule confessing lease, entry and ouster as to a part of the premises, and as to the same insisted upon the superiority of his title. In respect to the residue, he disclaimed all pretensions either to the title or possession.</p> <p>It is shown by a bill of exceptions, sealed at the instance of the . defendant, that the plaintiff, through several mesne conveyances sought to deduce a title from Henry Baudin, who claimed under a Spanish concession, bearing date the 28th July, 1798. The evidence adduced by the plaintiff, was as follows: 1. The concession to Baudin. 2. A quit-claim from Baudin to William E. Kennedy, acknowledged the 14th May, 1814. 3. A quit-claim deed from Wm. E. K. to the plaintiff’s lessor, dated 20th March, 1818. 4. A deed of release and assignment, dated 4th February, 1813, from the plaintiff’s lessor to William Pollard, written on the back of a Spanish concession of the same premises to the lessor: but objection being made, the concession was only read for the purpose of shewing, that the land described in the deed of assignment embraced the premises in controversy. 5. The will of William Pollard, admitted lo pi'obate in January, 1818, which authorised his executor to sell his real estate; also a deed from the executors of Pollard to the plaintiff’s lessor. 6. A lease from Pollard to Plumley, dated 14th May, 1814, to commence from July, 1813, and determine in 1818. All this documentary evidence related to, and embraced the premises in question, together with other lands. 7. He read to the jury from the American state papers, relating to the public lands, certain proceedings which shewed that the land described in the concession to Bau-din had been confirmed to Baudin, Pollard and Joshua K, severally, at different times. 8. He also adduced a patent certificate to the lessor for the same premises, with a request written by him at the foot thereof, that a patent might issue to Baudin, which was issued accordingly on the’31st March, 1837. 9. Proof was offered tending to shew, that Wm. E. K. was in possession of the premises in 1813', having built a small house thereon in 1805; and that he stated in 1806 he intended to claim it by pre-emption: further, that Plumley was in possession under Pollard.</p> <p>The defendant on his part, adduced the following proof. 1. A deed from Plumley to Sarah Shaeffer, for the premises in question, dated the fourth of March, 1815. 2. H. V. Chamberlain testified, that in February, 1814, he came to Mobile, and found George Shasffer, the husband of Sarah S, in possession of the lot in controversy, and claiming it as his own: that Plumley publicly disavowed the title of Pollard, and was selling off in lots the property embraced in the lease of the latter to him; this was known to Pollard and Kennedy at the time, “for there was a constant contention between them as to the right to the property.” That Shasffer occupied the lot sued for as his own, until his death, and his widow and children lived on it afterwards. Mrs. .Shaeffer intermarried with Frazier, who made application for confirmation, and it appeared from the State papers,.that the lot was confirmed to her for 40 feet depth, with a front of 72 feet. It was further shown that Frazier and his wife were dead. Mrs. F. leaving two infant children, one by each of her marriages; that . the lot occupied by their mother was divided between them; that William Raser purchased the part of one of the children, being the premises in question, and Joshua K., about the year 1830, took forcible possession of the part allotted to the other child, in the absence of his guardian, and has retained it ever since. 3. It was shown that Raser was dead; that the premises were sold by the guardian of his infant child, under a decree of the Orphans’ court of Tuskaloosa county, and that the defendant became the purchaser, received a deed of conveyance, and entered upon and took possession thereof.</p> <p>Upon this evidence, the defendant moved the court to charge the jury, that if they believed, that Plumley entered upon the premises described in the lease from Pollard to himself, and after-wards publicly disavowed the title of his lessor, and went on to sell out the premises in lots, as his own property, that this was known to Pollard, and no rent was paid to him, and that the purchasers under Plumley entered with the knowledge of Pollard, then, the statute of limitations would commence running against him and those claiming under him « from the time of such disavowal of his title by Plumley and sale to another.” Further, if they believed that Shasffer thus entered, that the statute of limitations would begin.to run against Pollard from the time Shasffer took possession of the lot; and if more than twenty years had elapsed previous to the commencement of the present action, the plaintiff could not recover. This charge was refused. But the court charged the jury, that the statute did not commence running until the expiration of the lease, and that it was optional with Pollard, whether he would sue or not before that time.</p> <p>The defendant also prayed the court to charge the jury, that the patent to Baudin, under the proof did not inure to Kennedy, or give him a right of entry, but the title, if any was conveyed thereby, and vested in Baudin, or his heirs — it being shewn that Baudin had died previous to the time it issued. This charge was refused; and the court charged that the patent (under the proof,) innured to the benefit of J. Kennedy, and was but the confirma.tion of his title. To all which the defendant excepted.</p> <p>A verdict was. returned for the plaintiff that he was entitled to recover the premises sued for, and that the value of the improvements made by the defendant thereon, were ten- thousand and fifty three 50-100 dollars, and judgment was rendered according to the verdict in favor of the respective parties against each other.To revise this judgment, the defendant alone has prosecuted a writ of error, and assigned for error the questions of law presented by the bill of exceptions, &c. With the assent of the plaintiff in error, the defendant has assigned for error the rendition of the judgment against him for damages, if it be competent for the court to consider it.</p>

<p>1. Joinder in issue, between plaintiff in execution and garnishee, is a waiver of previous irregularity.</p>

<p>1. Where in an action of trespass quare clausumfregit, the plaintiffs, to show their right to maintain the action in their joint names, introduced a deed by which one conveyed to the other, an interest in the land on which the trespass was committed, and offered to prove its execution by proof of the genuineness of the signatures. — Held, that as the defendant was neither a party or privy to the deed, it was necessary to prove that the deed was executed when it bore date, or at least that it existed at the time of the commission of the alleged trespass.</p>

<p>1. Where an attorney at law acknowledges in writing, that he has received a promissory note for collection, the rule of law which forbids that verbal evidence shall not be admitted to contradict a writing, will not prevent a creditor of the holder of the note, from proving by the attorney, that he was directed to pay it to him when collected.</p>

<p>1. The right of the Branch Bank at Mobile, to recover judgment on thirty days notice, is a summary proceeding, authorised by the statute, creating the institution ; and the provisions of the statute must be strictly pursued.</p> <p>2. That remedy is only given against the maker, or endorser of a note, bill, or band; and is not authorised against the representatives of a deceased maker or endorser.</p> <p>3. The administrators of a joint maker of anote, &c. cannot be sued jointly with the surviving makers.</p>

'Eitaos. to the Circuit Court of Tuskaloosa. Trover, for the conversion of a slave, by the plaintiff against the defendant in error.

Whit of error to the Circuit Court of Madison. The plaintiff in error declared against the defendant, in assump-sit, upon a parol contract; by which, the former agreed to carry from Whitesburg, in Madison county, to the city of New-Orleans, ninety-seven bales of cotton, weighing thirty-nine thousand one hundred and thirty-three pounds ; and the latter, in consideration thereof, undertook to pay him seventy-five cents per hundred pounds, for all the cotton that was thus…

<p>1. A party who sets up a title must furnish the evidence necessary to support it; and if the validity of a deed depends on an act in pais, the party claiming under it, is hound to prove the performance of that act.</p> <p>2. To sustain the exercise of a naked power, not coupled with an interest, the law requires that every pre-requisite to the exercise of that power should precede it.</p> <p>3. To sustain a sale of land for taxes, by the Marshal and Collector of Wetumpka, the party claiming under it, must show that every pre-requisite has been strictly performed.</p>

<p>1. A count which does not allego a trespass directly .and positively by the defend, ant, but charges by way of recital, “that whereas, &e.” and also alleges that the plaintiff was discharged from imprisonment, by the judge of the county court on habeas corpus, that the prosecution is ended and determined and that the imprisonment was without probable cause, must from its structure, be considered a count in case, for a malicious prosecution, and not a count in trespass 0</p> <p>2. Where the plaintiff obtains leave until the next term to amend his declaration, a plea in abatement need not be filed until then — but if no time is allowed, the presumption m this court will be, that the amendment must be made instanter, and unless the contrary is shewn, will be presumed to have been so made, and a plea in abatement filed at the next term properly rejected.</p> <p>3. Proof of the hand writing of the justice who took the affidavit and issued the warrant to arrest the plaintiff, at the instance of the defendant, will be sufficient ... evidence, prima facie, of the authority under which the arrest was made.</p> <p>4. A search of half an hour by a lawyer in his office for a paper which was there three days before, without finding it, will raise a presumption of its loss, and authorize secondary evidence of its contents, especially in a case where no doubt could exist as to its contents. Nor in the absence of proof indicating that it might be found elsewhere, would it be necessary to searcli elsewhere for it.</p>

<p>1. A promissory note for the payment Of a sum of money to the State Bank or one of its Branches, eo nomine, “ at the counter thereof,” if not in proper form to authorise the summary remedy provided by its charter, is sufficient under the 27th section of the act of 1837, “ to extend the time of indebtedness to the Bank, &c.”</p>

On the 1st of February, 1843, John D. F.'Williams made oath before the clerk of the county court of Montgomery, that the legal representatives of William Thomas, deceased, had recovered a judgment in the Orphans court of said county, for the sum of eight hundred and seventy-one 60-100 dollars, besides costs, against one Anderson Thomas; that the defendant had no property, within the knowlege of affiant, in his possession; but that affiant believed that Joseph D. Hopper was…

<p>1. Where real estate is purchased by a commercial partnership with the partnership funds, for the purpose of sale, to pay the debts of the firm, it will be considered, in equity, as part of the stock in trade, and therefore, as personalty, will go toi' the surviving partner.</p> <p>2. In such a case it will make no difference that the title is in the deceased partner alone, his heirs will be considered trustees for the survivor.</p>

WRIT of error to the Circuit Court of Shelby. This was atrial of the right of property, under the statute, at the suit of the defendant in error, as the plaintiff in execution, against the plaintiff and his wife. The husband alone makes the affidavit, and executes the bond, but the affidavit affirms, that the two slaves levied on are the property of the husband and wife, in right of their infant children, who are particularly named.

EkkoR to the Circuit Court of Montgomery. This was an action of assumpsit, brought by the plaintiff against the defendant in error and one Charles Labuzan, in the circuit court of Montgomery county. The declaration was in the usual form, for work and labor done; goods, wares and merchandize sold and delivered; for money laid out and expended; and for money paid and advanced, to the amount of thirty-five thousand dollars.

This was a proceeding to try the right of property to certain slaves, in which the plaintiff in error was the plaintiff in execution, and the defendant claimed the property as trustee, in a deed executed by the defendant in execution.

<p>Wmt of Error to the Circuit Court of Shelby.</p> <p>The plaintiff in error, was indicted for malicious mischief ifl killing a bay filly, the property of Richard Booth, of the value of fifty dollars. To the indictment the defendant pleaded not guilty and on that plea the cause was tried. The jury returned aver-diet of guilty; that the filly mentioned in the indictment, was the? property of Richard Booth, and assessed the fine atone hundred! and seventy-five dollars, which was five fold her value. A judg-tnent was rendered as follows^ «It is therefore considered by the court, that the State of Alabama recover of the defendant, the fine aforesaid assessed, for the use of said Richai’d Booth, together with the costs of this prosecution, and that defendant remain in custody, until the fine and costs are paid: and it is further ordered and adjudged by the court, that the said Washington Ooton, the defendant, be confined in the common jail of the county of Shelby, for the space of thirty days, and the sheriff of Shelby county, be charged with the execution of this order.”</p>

<p>Eeroe to the County Court of Montgomery.</p>

Assumpsit on a promissory note by the defendant against the plaintiffs in error. The defendants below pleaded non-assumpsit, and a special plea, that the note was executed on the first day of the week, commonly called Sunday, in consideration of a horse sold by the plaintiff, on that day to the defendants, in the regular course and prosecution of the plaintiff’s trade and occupation, áre. To this plea, the plaintiff demurred, and .the court sustained the demurrer.

<p>1. In a summary proceeding under the act of 1821, at the suit of a surety against his principal, to recover back money paid on a judgment, the record must show in which court the judgment against the surety was rendered.</p>

<p>1. When an executor, administrator, or guardian wishes his account settled, he must first present it to the judge of the orphans’ court, with his vouchers ; it must then be examined, or audited, and stated for allowance: forty days’ no tice of the term, at which it will be reported for allowance, must then be given, that all persons interested may examine the account, thus stated, and be prepared to contest it.</p> <p>2. Those pre-requisites, to a settlement of such accounts, must appear, by the record, to have been complied with.</p>

Debt by the plaintiff as assignee of John Twitty, against the defendant in error. The declaration contains two counts, in both of which the instrument sued on is declared upon as á sealed instrument, executed by one Dunlap Scott, for the payment to John Twitty, on the 23d of October, 1828, of one thousand dollars, in current bank notes.

The prisoner was indicted in the circuit court of Jackson, for the murder of a negro man, a slave, named Jacob.

Ehroe. to the Circuit Court of Barbour. This was an action of assumpsit, brought by George Field against Johns & Cole, as makers of a promissory note for one thousand dollars, payable to one Abram K. Allison, by whom it was endorsed to said Field. The declaration was in the usual form, by the endorsee against the makers. The defendants filed several pleas, only one of which requires any notice.

EkRok to the Circuit Court of Morgan. This was a motion by the defendant in error against the Bank, for judgment on notes of the Bank, amounting to twenty-eight hundred dollars. The record disclosed that thirty days’ notice had not elapsed from the time of giving notice of the motion, to the time when the judgment was rendered ; which was assigned for error.

WRIT of error to the County Court of Tuskaloosa, This was an action of Assumpsit, by the defendants in error, against the plaintiffs' and Lorenzo L. Sexton, on a promissory note made by a mercantile firm, of which their intestate was a partner, for the payment, twelve months after date, to the order of the Messrs. White, of the sum of four hundred and eight 18-100 dollars, at the U. S. Bank in Mobile. The defendants below pleaded jointly. 1.

This was an action of assumpsit, brought by the defendants in error, in the County court of Sumter, to recover of the plaintiffs in error the amount of nine bills, or notes, issued by the agents of said banking company, as president and cashier, payable, respectively, to different individuals, by name or to bearer.

This was a scire facias sued out at the instance of the defendants^ error against the terre tenant and heirs of Joseph Fitzpatrick, deceased, and others alleging that on the 10th December, 1840, the plaintiffs recovered a judgment against Joseph Fitzpatrick, deceased, for $1192 91 damages, besides costs, and six other persons, who are named; that execution of the damages and costs aforesaid, remain to be made, and commanding the sheriff to make known these facts to the…

Writ of Error to the Circuit Court of Montgomery. This was as action of assumpsit, by the defendant in error against the plaintiff, and was tried on the pleas of non-assumpsit, payment, set-off and the statute of limitations* At the trial, the defendant excepted to the ruling of the court-.

Ehror to the Circuit Court of Greene county. Beverly Brown brought an action of detinue against John Brown, in the Circuit Court of Greene county, to recover a ne,-. gro man. The defendant relied on the plea of non detinet.

This suit was commenced in the court below, by the defendant in error against Robert H. Dansby, on a promissory note, pending which, under the act of 1837, affidavit was made, and an ancillary attachment sued out, by which Mrs. M. A. Tillinghast was summoned as garnishee, to declare on oath what she was indebted to Robert H. Dansby.

Whit of Error to the Court of Chancery sitting at Montgomery. The plaintiff in error filed his bill, by guardian, alleging that he had been formally married to the defendant, in August, 1839; that at the time of such marriage, previously and since, he was incapable, by reason of the want of understanding, to enter into any contract, much less one by which a relation in life so important was formed.

<p>Ehroe to the Circuit Court of Pickens.</p> <p>Holt sued Moore, on his indorsement of a‘ promissory note, given by E. H. Moore & Co., to the defendant in error, for the sum of $3,882 27-100. The declaration is in the usual form. For his defence, the defendant in error, who was defendant in the court below, relied on a plea, setting forth, that his indorsement ■of the note in the declaration mentioned, is subject to the following condition, to wit: it was agreed and understood between the said E. H. Moore & Co., Thomas Holland, agent of Holt, Rose & Gibson, for whose benefit said note was made, and the said defendant, that if the said defendant would endorse said note, that an amount of avaible notes and accounts due to E. H. Moore & Co., on solvent persons, should be placed for collection, in the hands of said defendant, sufficient to pay off and satisfy the sum of money in said note specified; and that beyond the amount of such available notes and accounts on solvent persons, which said defendant should so receive, he should not be bound or liable on his said indorsement; and defendant avers that a sufficient amount of available accounts and notes, due to said E. H. Moore & Co., had not been placed in his hands for collection, to pay off and satisfy the said sum of money, in said note specified.</p> <p>To this plea, the plaintiff demurred — the court overruled the demurrer*, and gave judgment for the defendant; to reverse which this writ of error is prosecuted, and the judgment overruling the demurrer, is now assigned for error.</p>

Calhoun, since dead; that administration of his estate was granted to his widow and one William King, who by virtue thereof took all the property into their possession, and not long after intermarried; that King disposed of all the property, real and personal, except the negroes, six in number, and with his wife, removed to Talladega county, bringing with them the whole of the personal property of said deceased, and the two infant children (complainant and his brother,)…

Writ of Error to the Circuit Court of Barbour. This was a proceeding under the statute, at the suit of the de* fendants in error, to recover of the plaintiffs the amount collect-* ed by Johnson, as constable, on an execution issued by a justice of the peace of Barbour, in favor of the plaintiffs below, against John Davis, for the sum of forty-nine dollars and sixty-eight cents, besides costs.

The Planters’ and Merchants’ Bank of Mobile, having some time before obtained a judgment against George Walker, Robert Lowe and John H. Walker, for #8,464 10-100, caused an execution to be levied by the sheriff of Lowndes county, on a large number of slaves, as the property of said John H. Walker, about the 15th June, 1842.

This was a bill filed by the plaintiff in error, to rescind a contract for the sale of land, upon the ground of fraud and misrepresentation.

This was a motion by a surety in a writ of error bond, to vacate a judgment rendered at the last term on a certificate from the clerk of the circuit court of Mobile. The motion is founded on the affidavit of Sanford, the certificate on file, and the transcript from the record from the circuit court.

EeROR. to the Circuit Court of Perry county. This was an action of assumpsit, brought by the plaintiff against the defendant in the circuit court of Perry. On the trial, a bilí of exceptions was taken, which sets forth, that the plaintiff introduced the deposition of Allen E. Laughridge; which was read to the jury. The defendant sought to impeach the credibility of this witness, by proposing to prove certain declarations previously made to the defendant, pending the action.

This was a bill filed by the plaintiff in error, to enjoin the defendants in error, from collecting a sum of money by execution, which the bill alleges the plaintiff had been compelled to pay by a judgment against him as a garnishee. The chancellor dismissed the bill, on the ground that relief could be had hysupe?'sedeas and motion in the court out of which the execution issued;

Writ of Error to the Circuit Court of Lowndes. This was air action of assumpsit, by the plaintiff in error, against the defendant. The defendant pleaded, 1. Non-assump-sit. 2. The promissory note and guaranty described in the declaration have been materially altered without his consent, and are therefore not his acts, which last plea he verified by oath. On the trial, the plaintiff excepted to the ruling of the court.

The plaintiffs brought an action of covenant, against the defendant, in the county court of Dallas, on articles of agreement between the testator of the plaintiffs and the said defendant.

<p>1. A life estate being conveyed by deed in certain slaves to husband and wife, and upon the death of the survivor, remainder to the heirs of the wife — Held, that as there were no words seeming a Separate estate to the wife, the legal effect of the deed was to create a life estate in the husband, with a contingent remainder to the heirs of the wife; and that on the death of the wife before the destruction or termination of the particular estate, the remainder became vested in the heirs of the wife.</p>

<p>1. Senible: Where a plaintiff in attachment moves for judgment upon the written answer filed by a garnishee, it will be inferred that he accepted the answer, and waived an examination in open court.</p> <p>2. Although a garnishee is required to appear, within the first four days of the term to which the garnishment is returnable, and answer on oath, &c.; yet no judgment can be rendered against him upon the answer, before the plaintiffhas recovered a judgment against the defendant in attachment.</p> <p>3. Where a garnishee has appeared and admitted in writing, that he is indebted to the defendant in attachment, it is moro regular to render a judgment against the defendant and garnishee at the same term; but if it has been entered against the defendant only, it is competent for the court, at a subsequent term to render judgment against the garnishee; and this, although he has not been notified since the cause was disposed of as to the defendant, that a judgment would be moved for against him.</p>

<p>1. The words “ grant, bargain, sell,” must all be used in a deed, to imply a covet nant of the grantor, against incumbrances, done or suffered by him, within the meaning of the “ act respecting conveyances,” see. 20, approved March 4th 1803.</p>

<p>1. A written acknowledgment by an acting executor, that^a claim was presented within the timejrequired bylaw, is evidence of the factrof presentment; and the subsequent resignation of the executor, will not'.impair its value as evidence, and make it necessary to call the executor as a witness.</p>

<p>Writ of error to the Circuit Court of Autauga.</p> <p>This was an action of assumpsit, by the plaintiffs in error, against the defendants. The declaration is drawn without much regard to technical precision, and contains counts for goods, wares, and merchandize, sold and delivered; land sold and conveyed, and “ promissory notes, books of account, vouchers, bills, bonds, accounts, claims, papers and claims in action due from divers persons, amounting in all to the sum of fifteen thousand dollars.” The cause was tried on the plea of non-assumpsit. On the trial, the plaintiffs excepted to the ruling of the presiding judge, from which it appears, that the following writing was adduced, viz:</p> <p>“ Syllacogga, Oct. 17, 1837.</p> <p>Rec’d from Sims & McQueen,' all their accounts, books, papers, vouchers and claims at and in the store-house at Syllacog-ga, valued at four thousand dollars; also their stock of goods at the same place, valued at four thousand dollars; also their books of account, notes, vouchers and stock of goods at Tallashatchey, valued at four thousand dollars; also their right, title and interest to all the real estate bought by the said Sims & McQueen from E. C. Wilson and Charles Cott’.ngham, at Syllacogga, valued at three thousand dollars, for the payment of the follow’ng notes, viz: one for 81087 33-100, due 5th May, 1837; one for $1C87 33-100, due 5th Feb. 1837; one for 8811 9 l-lC0,due2d Jan.1837; one for $150, due 22d July, 1837; one for $2000, due 1st September, 1837; one for $6017 88-100, due 1st February, 1838; one for $107 94-100, due 24th January, 1837, andene lor $425, due 21st Sept. 1837.</p> <p>James Bkadfokd,' Agent for Pryor & Saxon, Assignees of Felder & Bradford.”</p> <p>The plaintiffs introduced' proof tending to show, that James Bradford was the agent of the defendants, and in that character purchased of the plaintiffs, the goods, &c., mentioned in the writing set out above; they also proposed to prove, that at the time of making the writing, it was agreed that the defendant was on a settlement of the no.tes described therein, to pay to the plaint.fis any surplus which might remain of the notes, accounts and other property then transferred. To the admission of this last evidence, the defendants objected, and their objection was sustained, the court deciding that the writing could not be explained, by evidence showing that it was verbally agreed, at the time it was' made, that the notes, áse., remaining, or their proceeds after satisfying the debts in consideration of which the transfer was made, were to be returned or paid to the plaintiffs. A verdict was returned for the defendants, and’ thereupon a judgment was rendered.</p>

<p>1. Cana mortgage, which has been referred to, and admitted by the mortgagor and mortgagee, in the course of their testimony, be admitted as evidence, without having been proved by a subscribing witness, notwithstanding the objection of the pi lintiff, who is not a party to the mortgage ?</p> <p>(2. The concealment, or non disclosure of facts, to amount to a fraud, must be of ! those facts and circumstances, which one party is under some legal ormoralob-ligation to communicate to the other; and which the latter has a right, not ¡ merely in fero cv.ssienlia, but juris at dejvre to know.</p> <p>3. An omission to communicate, or a concealment of facts, in such cases, should be attended by some evidence of trust or confidence, reposed by one party in the : other, to constitute a fraud.</p>

EfiKOR to the Chancery Court sitting for Russell county. This bill, which was filed by the plaintiff in error, charges, that in January, 1839, the complainant and one Swan, purchased of the defendant in error, a tract of land, at .the price of thirty-two hundred dollars, paying down at the time of purchase, one thousand dollars,- and executing their notes, one for one thousand dollars, payable on'the 25th December, 1839, and the other for twelve hundred dollars, payable on…

<p>1. The court may, after judgment for the plaintiff, permit a declaration to be substituted in lieu of the original, when it has been lost or mislaid; and though it is proper to require notice to be given to the defendant, that a motion will be made for that purpose, yet if the court grant the motion, without a previous notice, its action will not be considered as void or irregular.</p>

John Mosely, defendant in error, brought an action, in the oir-cuit court of Dallas, aga'nst the plaintiffs in error, as adminstra-tors of Lloyd Barns, deceased, upon a bond, dated 4th December, 1832, executed by Henry W. Barnes, with Martha M. Barnes, his wife, and the said Lloyd Barnes, deceased, for the payment of twenty-eight hundred dollars, to said'Mosely, with a condition under written; whereby, after reciting to the effect, that said Mosely, together with Mary .and…

Assumpsit, by the plaintiffs in error, against the defendant in error, who in proper person pleaded in abatement, “ that at the time the plaintiff’s writ was executed upon him, that he was a citizen and free-holder of the county of Tallapoosa, and that he still resides in said county, and ever has, from the begining of the said action; all of which he is ready to verify and therefore he puts himself upon the country, whether the plaintiff should have or maintain the said…

<p>Weit' of Error to the Circuit Court of Sumter.</p> <p>This was a motion by the plaintiffs i® error, to quash a forth' coming-bond*. The bond: is dated the 26th March, 1840;; is executed by John Lunsford, Peter B. Whiting, and Jamies' E. Jones, 'in favor of the defendants-, and is' its the penal sum of five thousand four hundred and eighty-six dollars. In the condition it is recited that an execution issued from the Circuit court of Sumter, in favor of the defendants in error against “ John Lunsford for the sum of two thousand seven' hundred and forty-three dollars, including debt, damages and costs'; bearing test the 16th day of March* 1840, which execution was levied on one hundred bales! of cotton as' the property of Lunsford, to satisfy the same. The-condition proceeded as usual' to declare, that the bond should be void- if the cbtton was delivered at the time and place of sale, both of which were particularly designated.</p> <p>The execution, including debt, damages, and the costs taxed, by the clerk, required to be made the sum of twenty-four hundred and ninety-two 50-100 dollars} and on the ground of the discrepancy between the execution- really issued and! that described in the condition of the bond, the motion to quash was founded. The judgment of the court on the motion is as follows í “ Richardson & Oneal V, John Lunsford, This day came the parties, by their attorney, and the motion to quash the forthcoming bond, &ev «coming oa to be heard, and after argument of 'counsel ’had tfaere-ion, it is considered by the court that said motion be discharged.1’</p> <p>The parties to the writ of error are John Lunsford, Peter B. Whiting and Richard S. Jones, adm’rs of James E.- Jones, dec. plaintiffs, and Richardson & Oaeal, tfe «defendants.</p> <p>Anticipating the argument for the defendant in error, he insisted «that the judgment on the motion to quash may be reviewed on error; the cases decided by this court are not opposed to such a conclusion; that if there is a misjoinder of plaintiffs in error, the writ may-either be amended, or considered as amended .under the late ¡statute upon the subject. The description ¡©f ithe parties to the judgment in the «margin of the enÉrynamyfee rejected as surplusage, and -the judgment be held to decide the motion as between all the parties to the execution and forthcoming bond. {Drummond w. Wright, 1 Ala. Rep. 205.] The execution is a part of the ¿record, and may he referred to for the purpose of ascertaining whether it authorized such a bond as was executed. £ 1 Mimf. Rep. 60; '2 Leigh’s Rep. 545] In a proceeding .such as -this was, ho notice was necessary — it was an incidental step in -the case which the parties ¡are presumed to have been informed of, in consequence of their continuance in court</p> <p>These objections being out of the way,the discrepancy between ■the bond and execution will be apparent. The penalty of the bond is $5,486, and the execution described is for $2,743, including debt, damages and costs. Ths fieri facias which was-levied is for $2,492 50-100, including defat, damages and costs, and double the amount is $4,985. This is regarded as sufficient to authorize ¿reversal. [Aik. Dig. 171; 2 Porter, 494 ; 3 Ala. R. 484; 1 Ala: Rep. N. S. 316; 7 Mass. R,e.p. .98 ; 1 Mum£ Rep. 605; 2 Leigh’s Rep. 545]</p> <p>‘The writ of error should be dismissed, because there is no-such judgment as can be revised by an appellate court; the judgment described in the writ of error is aot such as is found in the record; and besides, there is a misjoinder of plaintiffs, which cannot be amended. [Smith & Hill v. Cobb, 1 Stewt. Rep. 62] But if the writ of error be sustained, it is. insisted, that the bond and execution cannot be looked to, not being set out by bill of exceptions. [4 Porter’s R. 332 ; 7. Id. 156-270 ; 9 Id. 136-312 ; 1 Ala. Rep. N. S. 425 ; 2 Id. 345 ; 3 Id. 285.']</p> <p>Again, the motion was rightly overruled, because it did not appear tha.t the’ defendant in error had notice of it. [1 Stewt. & P. Rep. 158 ; 1 Ala. Rep. N. S. 207; 3 Id. 289.] The appearance'by attorney, when no issue was made or trial had, does not cure the want of notice. [1 Porter’s Rep. 285; 8 Id. 99 ; 3 AI. Rep. 28,9.]</p>

Eiutoit to the County Court of Madison. This was a motion by the plaintiff, suggesting that the defend» dant, as sheriff of Madison county, by proper diligence, could have made the money on an alias pluries writ of jierie facias, which issued in favor of the plaintiff, on a judgment of the plaintiff for one thousand and eleven dollars six cents, besides costs, against John Kinkle, R. B. Purdom and G'ortz D. Kavanaugh, which, writ came to the sheriff’s hands on the 5th…

WRIT of Error to the Circuit Court of Russell. The defendants in error, being merchants and partners in trade, under the style of “ Hope & Co.” recovered a judgment against the plaintiffs, doing business together in the name of “ The Oswitchee .Co.” An execution was issued on that judgment, and placed in the sheriff’s hands on the 1st June,, 1842, which by his indorsement thereon, appears to have been levied on sundry tracts of land.

Ekkoe to Sumter County Court. This was a proceeding by the defendants in error, against the plaintiff in error, as sheriff of Sumter, suggesting that he could have made by due diligence, the money on an execution of the defendants in error.

Wkit of Error to the Circuit Court of Dallas. The plaintiffs in error recovered a judgment against Stewart George, in the County Court of Dallas, and filed their affidavit under the statute, on which garnishment issued to the defendant, requiring him to appear and answer on oath what he was indebted, &c. to the defendant in the judgment.

Eiuton to the Circuit Court of Russell. This was a motion by the plaintiff in error, against Worsham, as sheriff of Russell county, and the other two defendants as his sureties for failing to pay over money made by him on an execution of the plaintiff. The sheriff took issue upon the suggestion, and the sureties offered and pleaded two special special pleas. 1.

WRIT of error to the Circuit Court of Mobile. This was a proceeding by garnishment under the statute, at the suit of the defendant in error against the plaintiff. The garnishee was alleged to be the debtor of Henry C. Holmes, against whom the plaintiff had obtained a judgment, for the sum of twenty-eight hundred and five 29-100 dollars, in the circuit' court of Mobile, which was still unsatisfied.

<p>Etror to the Circuit Court of Tuskaloosa.</p>

Weit of Error to the County Court of Russell. The defendant in error, declared against the plaintiff as the indorser of a promissory note, made to his intestate. The declaration is in the usual form, but concludes with the proferí of letters of administration, granted to the plaintiff below by the inferior court of the county of Muscogee, in the State of Georga, when sitting for ordinary purposes.

Enít¿>R to the circuit court of Autauga. This proceeding consisted of eight cases, originally commenced by the defendant in error, before a justice of the peace, against the company, to recover the amount of a draft of the following tenor.

Weit of-Error to tho circuit court of Barbour. This was a trial of the right of property under the statute, The defendants in error recovered a judgment against John McKay, in the county court of Barbour, and an execution issued thereon, was levied on sundry goods, wares and merchandize, which were claimed by the plaintiff, who gave bond with surety to try the right to the same. On the trial the claimant excepted to the ruling of the court.

The defendant was indicted in the circuit court of Perry county, for the murder of his own slg.ve. The first count of the indictment, is in the usual form of an indictment at common law, charging the slave to be his propérty, and the death to have been caused by beating with clubs, sticks and whips.

Writ of error to the Circuit Court of Barbour. This was an action of Assumpsit, by the defendant in error, against the plaintiff, upon a writipg as follows: “Received, Feb. 19th 1839, three hundred and twenty-five dollars 20-100, belonging to Edmund Sheppard, and foij which I agree to account on a final settlement with him. Wm. Wellborn. A judgment final was rendered by default without a declaration, and it is now assigned for error. 1. That there is no declaration. 2.

EkRoe to the Circuit Court ofRenton. This was an action of assumpsit, on a promissory note, by the defendant in error against E. L. Givens, H. L. Givens and W. T. Givens as partners.

<p>Whit of Error to the Circuit Court of Greene.</p> <p>This was a motion to cause satisfaction of a judgment recovered by the plaintiff, against the defendant, to be entered of record and to quash the execution thereupon issued. The facts of the case áre presented by a bill of exceptions, and are substantially as.follows, viz: At the March Term] 1842, of the circuit court, the plaintiff recovered a judgment against the defendant, for one hundred and sixty nine 80-100 dollars, besides costs; after the court had adjourned and an execution jiad been made out, but before it was placed in the sheriff’s hanjls, or had been taken from the clerk’s office, the defendant paid to the then clerk of the court the amount of the judgment, with interest and costs, after deducting a credit to which he was entitled. I After the payment thus made, the plaintiff procured an execution to be issued on the judgment and placed in the hands of the sheriff of Greene, to be levied of the goods, &c., of the defendant. Upon these facts, the court ordered the execution to be quashed, and satisfaction of the judgment to be entered, and thereupon the plaintiff excepted.</p>

Judgment on motion by default in the court below, by the bank, against the plaintiffs in error.

Writ of Error to the Circuit court of Russell. This was a proceeding by notice and motion, at the suit of the defendants in error against the plaintiff as coroner, for the recovery of money collected of them on sundry writs of fieri facias, issued from the Circuit court of Russell, which had been quashed by order of that court.

Writ of Error to the Circuit Court of Tuscaloosa county. Assumpsit by Sherrod against Rhodes, to recover the amount of three bills of exchange, each for f6,034. The declaration contains counts on each bill, and also the common counts. The cause was tried at the Fall term, 1842, upon the issues of non as-sumpsit, payment and set-off, when a verdict was found for the defendant; and on this he had judgment.

Writ of Error to the Circuit Court of Tuskaloosa. This was an action of assumpsit by the plaintiff in error, against •the defendants, joint owners and proprietors of the steam-boat Warrior, to recover damages for the failure of them to deliver in Mobile, according to contract, one hundred bales of cotton, -ship-ed on board that boat at Tuskaloosa.

Writ of Error to the Chancery Court sitting at Huntsville. The plaintiff in error filed his bill against the defendants in November, 1836, in which it is substantially alleged that in October, 1828, he mortgaged, or conditionally sold to the defendant Har-die, a negro man named Jack, in consideration of money owing by him to Hardie, and of money then advanced by the latter to pay judgments which had been rendered against him.

<p>1. Seville; where the burthen of proving the fairness of a. sale made by a sheriff, is thrown upon a defendant he may inquire whether the property did not sell for as much as such property usually brought at sheriff’s sale.</p> <p>2. Semite; a deputy sheriff, who has levied a fieri facias, may hid for and pur. chase the property at a sale made by his principal.</p>

Writ of Error to tho Circuit Court of Barbour. Allen V. Robinson was indicted at the term of the circuit court of Barbour, holdcn in October, 1840, for betting at a faro bank, and a capias was thereupon issued to Macon, which was executed by arresting the defendant therein, who entered into a recognizance, with John W. Hinson, Thomas S. Woodward, ffm.

Wjiit of error to the Chancery Court sitting at Cahawba. The defendant in error filed an original and supplemental bill against the plaintiffs, which, so far as necessary to be noticed, allege, among other things, that the complainant was the proprietor of two promissory notes for one thousand dollars each, made by George Thomas, and payable to him, the one on the first of March, 1842, the other on the first of March, 1843.

Wkit of Error to the Circuit Court of Lowndes. The defendant in error declared against the plaintiff afe the drawer of a bill of exchange, dated September 12th, 1838, requesting Messrs. Robinson & Dejarnette, one hundred and twenty days after date, to pay to the order of Ben. F. Tarver, five thousand dollars, negotiable and payable at' the Bank of Mobile. The bill is indorsed by the payee, to John Tipton, and by the latter to the plaintiff- below.

WRIT of error to the Circuit Court of Perry, This was an action of ejectment for the recovery of the possession of “ a certain lot or parcel of land or ground lying in the town of Marion in the county of Perry,” which is particularly described in the declaration by metes. An order was made, pending the cause in the Circuit Court, appointing Samuel A. Townes guardian ad litem for Wm.

WitiT of Error to the circuit court of Autauga. This was a trial of the right of property under the statute. In July 1842, a writ of fieri facias previously issued at the suit of the plaintiff in error against Ashley Parker, was levied on sundry slaves, as the property of the defendant therein, to which the defendant in error interposed a claim in the manner prescribed by law.

Whit of Error to the Circuit Court of Sumter. This was a trial of the right of property under the statute. In November, 1840, an execution issued from the circuit court of Sumter, at the suit of the plaintiff in error, requiring the sheriff of that county, to make of the goods, &c., of Allen Harrison and others, the sum of thirty-seven hundred and seventy-seven 80-100 dollars, besides costs.

The defendant was indicted in the circuit court of Benton, for forgery. Held: that comparison by the jury may be made to aid doubtful proof, but is not evidenceper ss. [2 McC. Rep. 518; 3 N. Hamp.'Rep. 47.] In Virginia, it has been decided that the jury cannot compare a genuine with a doubtful paper in any case. [1 Leigh’s Rep. 216; 6 Rand.

Weit of Error to the Court of Chancery sitting at Montgom-' ery. This was a suit commenced by the ancestor of the defendants, in Talladega, and transferred from the chancery court of that county, because the presiding chancellor had been intei’ested as counsel in the cause.

Writ of Error to the County Court of Lowndes. .The plaintiff in error recovered a judgment against Robert Lowe and others, in the circuit court of Mobile, and caused a fieri facias to be issued thereon and placed in the hands of the sheriff of Lowndes, which among other slaves, was on the 15th June, 1842, levied on the following, as the property of Lowe, viz: Jack, Chapman, Tom, Susan, Lucy, and Caesar.

Whit of Error to the Circuit Court of Dallas. This was an action of Jssumpsit, by the plaintiff in error, against the defendant. The declaration contains four counts.

This was a motion in the court below, by the defendants in error, to quash an execution, and levy thereon, which had issued on a judgment of the plaintiff against them, subsequent to the time of their making application to the United States Court for the Southern District of Alabama, and upon which they had obtained a decree in bankruptcy.