Volume 5 — Porter's Alabama Reports (1834–1839)

The defendant in error exhibited his bill on the equity side of the Circuit Court of Madison, setting forth, that on the eleventh day of May, eighteen hundred and thirty, he executed a deed of trust to Thomas J. Sumner, as trustee, for the benefit of the plaintiff, which was intended to secure the payment of a note, given by the defendant to the plaintiff, on the fifteenth of January, eighteen hundred and thirty, for the sum of two hundred dollars, with interest from the…

On a writ of error to the Circuit Court of Tus-kaloosa. This was a motion submitted by the plaintiffs in error, for the object of testing the liability of the defendants, as sureties to the bond of a constable. The default of the constable consisted in his failure to return an execution.

On points reserved as novel and difficult, from the Circuit Court of Monroe county. Held: to, against and-upon the said Primus, then and there, feloniously,-wilfully, and of his malice aforethought, did shoot- and discharge ;■ and that the said Thomas P. Kennedy, with the leaden bullets aforesaid, out of the pistol aforesaid, then and there, by force of the gunpowder, shot and sent forth, as aforesaid, the aforesaid…

Ill error to tlie Circuit Court of Mobile county. This was an action of detinue by Turner, as next friend, in the Circuit Court of Mobile county, for the recovery of a slave. The plea was non detinet; and under it, by the verdict of a jury, judgment was rendered for the defendant.

<p> As to joinder of several defendants, in covenant. </p> <p>1. Two, covenanting with another, by distinct and separate writings, — the one for the performance of several duties, and the Dther to become the surety of the other, to the performance of his covenants, — cannot be joined in the same action, to recover for a breach.</p>

On a writ of error to the Circuit Court of Ma-rengo county. Tirza Street, as the administratrix of the estate of Eleaza Lee, declared against Caiuan Pistole, in the action of detinue, for a slave. To the declaration there was a demurrer, which being sustained; the plaintiff had permission to amend. The defendant then pleaded — ■ First. — non detinet.

This was an action of assumpsit, by the plaintiffs in error, upon a promissory note. The note was dated the thirteenth day of September, eighteen hundred and thirty-four, and was payable one day after the date. And the writ was tested the fifteenth September, eighteen hundred and thirty-four. The defendant pleac^in abatement, that the writ was issued before the cause of action accrued; to-■which the plaintiff'replied, taking issue to the country.

9 On. a writ of error to the Circuit Court of Sumter. This case in the Court below, was a proceeding in attachment. The affidavit was made by Benjamin F. Logan, who swore that William H. Cannon, was justly indebted to him, in the sum of seven hundred and sixty-two dollars, and sixty-two and a half cents; and that said Cannon absconded or secreted himself, so that the ordinary process of law could not he served upon him.

George L. Medlock was summoned before a justice of the peace of Tuscaloosa county, to answer to Samuel B. Ewing, treasurer of the Jockey Club, and where a judgment was rendered against him, from which he appealed to the Circuit Court.

This was an action of trespass to try titles, brought by Birdwell against Bowlinger. On the trial, the plaintiff, to support his action, produced in evidence, a certificate .or duplicate receipt of the receiver of public monies, for the Coosa land district, showing full payment for a particular tract of land; and which appeared to have issued under the pre-emption act of eighteen hundred and thirty-four.

On a writ of error to the Circuit Court of Chambers county. In this case, M’Coy declared against the defendants in error, upon a promissory note; and in de-fence, the defendants plead, First — non assumpsit: secondly — award: and thirdly — a failure of consideration. Upon each plea, the plaintiff took issue to the country; and a verdict was rendered in favor of the defendants.

The action in this case was assumpsit, brought by Abel H. White, as the administrator de bonis non of Benjamin Palmer: and the cause of action was a promissory note, made by the defendant Beard, to secure the payment of nine hundred dollars to Job Going, the administrator of Benjamin Palmer. A demurrer having been filed to the declaration, and overruled, the defendant plead non assumpsit and judgment was given in his favor.

<p> Of superseding executions. </p> <p>1. Where, by a transcript appended to a writ of error, properly certified, it appeared, that a petition had been filed to supersede an execution, on the ground, that property, more than sufficient to pay off the judgment on which issued, had been levied on and sold under a previous execution, and by the returns on this latter execution, certified as part of the transcript, the facts alleged in the petition, were shewn to be true,-r-it was held — ■</p> <p>First — That it could not be objected in this Court, that the executions were no part of the transcript, unless appearing by bill of exceptions.</p> <p>Second — That the Court below, erred in quashing the su-persedeas, the case appearing to have been heard on the merits.</p>

In error from the County Court of Madison. This was an action of assumpsit against Moore, for the value of goods, wares and merchandise, sold and delivered: and under the plea of non assumpsit, verdict and judgment were rendered for the plaintiffs.

This was an action of covenant, by Morris, for the use of another, against Derrick, in the County Court of Madison.

Oa a writ of error to the Circuit Court of Shelby county. In this cause, an action of trespass on the case, was prosecuted by Hal], the plaintiff in error, to recover damages of BÍHenry, for the refusal of the latter to sell as a sheriff, certain property levied on under an execution issued against one Royster, and the plaintiff as his surety. The plea was not guilty, upon which a verdict was rendered for the defendant..

On points reserved as novel and difficult. From the Circuit Court of Madison. Williams was indicted in the Circuit Court of Morgan county, from which county the venue was changed to Madison, for the offence of horse-stealing.

On a writ of error to the Circuit Court of Morgan. In this case, Kimbell commenced an action of detinue, against Burt, who was the administrator of Thomas Peyton, for the recovery of a slave, named Abraham.

Oa a writ of error to the Circuit Court of Tus-kaloosa comity.

On a writ of error to the County Court of Tus-kaloosa county. This was an action of assumpsit upon twelve promissory notes, eleven for the sum of forty-five dollars each, and one other for the sum of nineteen dollars and forty-four cents — all executed by the defendant, Hunley.

This case was brought up by writ of error, to the Circuit Court of Talladega county, on. a decree of the Chancery side of that Court, dismissing a bill, filed by the plaintiff in error. The bill alleged, that under the treaty formed between the United States and the Creek Indians, an allotment of three hundred and twenty acres of land, had been made to one Holeyar, a Creek, upon which land, orator, had, with the consent of said Indian, for some time, resided.

On a writ of error to a judgment of the Circuit Court of Marengo county.

This was an action of assumpsit against the defendant in error, in the Court below, and was prosecuted in the name of the school commissioners of township twenty-two of range ten, west.

This cause came before this Court by writ of error, to revise a judgment of the Circuit Court of Tuskaloosa county.

la error to a decree of the Circuit Court of Jack,son county, exercising Chancery jurisdiction. This was the case of a bill in equity, filed by John Larkins against Henry Rhodes.

On a writ of error to the Circuit Court of Dallas county. Barnard Johnson declared in two counts, against William Hendrick, in the action of trespass on the case, to recover damages for a nuisance.

On a writ of error to the Circuit Court of Cov-ington county. James Harrison sued out a summons from before a justice of the peace of Covington county, on a claim of debt against Danelly, founded upon the note of the latter, for forty dollars.

On a writ of error to the Circuit Court of Shelby. This was assumpsit by Gold against Mundine, for cotton, and goods, sold and delivered; and for money lent and advanced to, and had and received by, defendant. The pleas were, non-assumpsit, payment and set off, and failure and want of consideration: and on issue to these pleas, a verdict was rendered for the plaintiff.

On a writ of error to a decree of the Circuit Court of Jefferson, exercising Chancery jurisdiction, perpetuating’ an injunction of proceedings at law.

On a writ of error to proceedings of the Orphans’ Court of Madison county.

On a writ of error to the County Court of Jackson county. The proceedings upon which this case were' founded, originated on the relation of' Carter, the treasurer of Jackson county, who, on the seventh day of July, in the year of our Lord, eighteen hundred and thirty-six, filed a notice to Patilla, and his sureties, as the tax collector of said county, shewing that at a special term of the County Court of said county, a motion would be submitted upon the bond of said…

The plaintiff in error made a suggestion of the death of the defendant in error to this Court, and moved that his representative be made a party. The record in the case, purported to be a petition for the supersedeas of an execution, which was dismissed by the Court below, and from which the plaintiff in error, took an appeal.

At the last term of this Court, it being suggested, that in the record and proceedings, of the Circuit ..Court of Madison, in a case wherein the said Lynes was defendant to an indictment, and upon which •he was convicted, — great error existed — this Court awarded a writ of error.

Goodlet commenced an action of trespass to try titles, against Smithson, in the Circuit Court of Benton. The plea was not guilty, upon which an issue was joined to the country. On the trial, the plaintiff relied upon a sheriff’s deed, — the land having been sold under an execution issued upon a judgment at law.

This was a petition, in the nature of a libel in admiralty, filed in the County Court of Mobile county.

This was an action of trespass, to try titles determined in the Circuit Court of Madison county. The action was brought in the name of David Bradford against Sarah Freeman; and the defendant, under the plea of not guilty, defended the suit as the guardian of Young E. Freeman, a minor, under whom the plaintiff claimed title.

On a writ of error to the Circuit Court of Mobile county, exercising Chancery jurisdiction. Held: that a.corporation of a city, by virtue of its general powers, cannot make it lawful to do so — the right to regulate markets does not authorise a nuisance to be erected. — [Ibid.] Even the Crown cannot au-thorise or sanction that which is a nuisance. — [2 Story’s Equity, 202. — Eden on Injunctions, 157,-8.] Nor can the patentee of…

In this case, an action of covenant, was brought by Aaron Perry, against Augustin A. Hewlett, Augustin Hewlett and William Milligan, in the Circuit Court of Morgan.

This action was trespass to try titles, determined in the Circuit Court of Talladega county. The case was commenced on the twenty-fifth day of August, eighteen hundred and thirty-five, in the name of Samuel W. Mardis and William M. Inge, who sought to effect a recovery against Parsons and Jones, of a tract of land, known as the east half of section four, in township nineteen, of range five.

This was an action of trespass to try title, determined in the Circuit Court of Shelby county, upon the plea of not guilty. On the trial in the Court below, the plaintiff offered in evidence, the duplicate receipt of the receiver of public monies, for the Tuscaloosa land district, dated on the twenty-eighth day of July, eighteen hundred and thirty-three, showing full payment for the parcel of land in controversy.

This was the case of a bill in Chancery, determined in the Circuit Court of Talladega county, and filed by Benjamin S. Parsons. The purpose of the bill was to render the defendants to it, accountable to the complainant, for an aliquot part of the proceeds of a sale of certain town lots, in the town of Tal-ladega, in the original purchase of which, from an Indian reservee, complainant claimed to be a co-partner.

On points reserved from the Circuit Court of Sumter county. The record in this case showed, that at the October term, eighteen hundred and thirty-six, of the Circuit Court of Sumter, an indictment was found by the grand jurors of that county, against Robert Bell, in the following terms. “The grand jurors of the State of Alabama, elected, sworn and charged to enquire for the body of the county of Sumter, in said State, upon their oaths present, that the river Sucarnochee, —…

In this case, the plaintiffs in error, had been sued and declared against in the Circuit Court of Greene, for representing a person notoriously insolvent, to defendant in error, “as perfectly good for his contracts.” By means of which representation, defendant in error was induced to credit him in sundry sums of money, for goods, wares and merchandise, which were due and unpaid, and which defendant was likely wholly to lose.

The plaintiff in this case sued out a writ in trespass, for an assault and battery, against Samuel Boyd, William Bragg and Joseph Bragg. The writ was served on Samuel Boyd and William Bragg, against whom, at the October term of the Circuit Court of Benton county, eighteen hundred and thirty-four, plaintiff declared. To the declaration, defendant, William Bragg, pleaded not guilty.

Meakings and James B. Burnet, co-partners as merchants trading together, under the name and style of B. H. Meakings and Company,… Held: and firmly bound, unto the said plaintiffs, in the sum of four thousand dollars, above demanded to be paid to the said plaintiffs; which said writing obligatory, was subject to a certain condition thereunder written, whereby, after reciting, to the effect following, viz: “That whereas, the said William B. Ochiltree, stood indebted to…

In this case, the plaintiff in error as landlord, complained before a magistrate in Talladega county, that the said plaintiff, on the-day of -, in the year of our Lord, one thousand eight hundred and thirty-four, was seized and possessed of a certain tract or parcel .of land, known and designated, as the south half of section .eighteen, in township, eighteen, of range six, east, in the Coosa land district, to wit, in the county aforesaid, together with the messuage and…

On the twenty-sixth day of April, eighteen hun On this writ, they declared at spring term, eighteen hundred and thirty-six, and to the… Held: at the house of Peter Dudley, Esq. in the county of Tallapoosa, on the second day of October, in the year of our Lord, one thousand eight hundred and thirty-five; by virtue of the right and power, in said tribe, by the last mentioned article of the treaty aforesaid, vested, the said tribe relinquished, released, assigned over and…

This was a case in which the plaintiff below had furnished articles to a son, a minor, a pupil at a literary institution, and sought to charge the father. The case was tried before a magistrate, who gave judgment for the defendant. The case being removed to the Circuit Court, plaintiff obtained a verdict, whence it was removed to this Court by writ of error.

This case was commenced before a magistrate in Jackson county, and carried by writ of error, through the County and Circuit Courts, to this Court, as follows: • On the seventh of April, eighteen hundred and thirty-four, the plaintiff in error, signed a sealed note, together with one L. Wood, and as security for Wood, by which they promised to pay, on the first day of January, thence ensuing, the sum of thirty-five dollars, to one J. T. Bradford, administrator of L. James,…

This case was brought up by writ of error to the Circuit Court of Franklin county, exercising Chancery jurisdiction, to reverse a… Held: made by complainant, and which complainant had given to Browder, who transfered it to respondent; the bond was conditioned to make title, to lot number five hundred and sixty-three, in the town of Tuscumbia, upon the payment of the purchase money, and bore date, fifth of August, eighteen hundred and twenty-eight, for which Haley gave…

Indictment for larceny, In this case, tfee bill was íoond 1b She? fc and on motion of the defendant, and for cause shewn by affidavit, the venue was changed to Talladega; where ths defendant being convicted, brought hik case up to this Court, on a reservation of novel and difficult points.

At the September term, eighteen hundred and thirty-six, of the Circuit Court of Tuskaloosa county — John Thomas, foreman, James Pinion, N. W. Ware, Wiley Watson, Curtis Ivy, James M’Creight, Dennis Springer, Jesse Hughes, Thomas M’Crackin, John Poe, sen., David Baugh, Thomas B. S. M’Ge-hee, John Terrell, and William L, Reese, good and lawful men of said County, impanneled, sworn and charged to inquire for the body of Tuskaloosa county, within the State of Alabama, exhibited…

Error from the Circuit Court of Jackson county. Assumpsit, on the following instrument in writing: “$190. On or before the first day of January next, I promise to pay Allen Steger, or order, the sum of one hundred and ninety dollars, the same being for the hire of negroes, and rent of land:— which negroes are Ned and Davy. Said negroes to be clothed with the usual clothing.

In-this case, the plaintiff came, and said there was error in the proceedings and judgment of the Court below, Because, 1st. Martha T. Goff, instead of her ward, was made plaintiff in th.e writ. 2. In the declaration .also, 3. That the judgment was in her favor. 4. There was a misjoinder of counts, the first or two first, alleging a supposed cause of action in favor of the ward, and the last in her own right. 5.

The plaintiff in this case, carne into Court and prayed that a certain judgment, rendered against him, in the Court below, might be reversed and held for nothing.

Indictment for assault, with intent to murder. Held: then and there, feloniously and wilfully, and of their malice aforethought, did discharge, and shoot off, to, against, and upon, the said Levi A. R. Lowry, and which the said William H. Standifer, Israel Standifer, sen’r. Janies Standifer, Jesse Standifer, Lemuel Standifer, Franklin Standifer, and Israel Standifer, jun’r, with the…

<p> Of points of practice in the Supreme Court, </p> <p>1. If one suing out a writ of error, fails, from any cause, to file the transcript at the term to which the writ is returnable, — a new writ of error may be sued out, al any time before the affirmance of the judgment, on certificate.</p> <p>2. And the neglect or omission of a defendant in error, to affirm the judgment on certificate, where the transcript is not filed, at the first term, or any time thereafter, — precludes his right to such affirmance, on certificate, at a subsequent term, when the case has been brought up by a new writ of error, and the transcript is filed.</p>

la error to the County Court of Tuskaloosa county. Motion to enter up judgment against plaintiff in error, for not returning a. certain execution.

Bill in chancery, — determined in the Circuit Court of Washington county. The hill alleged, that on or about the twenty-seventh day of September, A. D. eighteen hundred and twenty, orator signed a note as surety, for one Thomas H. Douglass, payable to the President, Directors and Company of the Tombeckbee Bank, for the sum of five hundred dollars, payable ninety days after date, and made payable and negotiable at said Bank.