Volume 6 — Alabama Reports

■ WRIT of Error to the Circuit Court of Mobile county. This is an action for a forcible entry and unlawful detainer, instituted by David against Mrs. Powers, before a justice of the peace of Mob Jo county. After verdict and judgment against the defendant, she removed the cause into the circuit court, by cer-tiorari, and there assigned as error; 1. That the proceedings were instituted without a written complaint, as required by the statute. 2.

Mobile, March 26, 1840. $600. Gent. — .Four months after date of this, first of exchange, second of same tenor and date unpaid, pay to David Files, or order, six hundred dollars, for value received, and charge the same to Your obedient servant, Wm. Crawford. To C. L. Fonlek, Esq. Washington City.

Wkit of Error to the County Court of Benton, The defendant in error declared against the plaintiff, in as-sumpsit for money had and received, paid, laid out and expended, as well as for money lent and advanced. The cause was tried upon the general issue, with leave to give any special matters in evidence that might be pleaded in bar. On the trial the defendant excepted to the ruling of the court.

<p>Writ of Error to the Court of Chancery for Greene county.</p> <p>The bill in this case was filed by Nabors against May and others, and alleges that in September, 1839, John P. Savage and Asa White executed to Nabors, a writing obligatory, for 166 dollars, payable to him sixty days after date. That in December of the same year, Nabors, then residing in Jefferson county, committed the writing obligatory to one W. H. Patterson for collection, and took his receipt. This recept describes the writing obligatory, and contains an agreement to collect or return it, reserving twenty-five dollars due from Nabors to Patterson. The bill further alleges, that Patterson afterwards transferred the writing obligatory to May, without the knowledge or consent of Nabors. That May early in 1840, commenced a suit on it in the county court of Greene county, and recovered judgment against White, (Savage not being served with process,) in the name of Nabors, for the use of May. That Patterson left the State soon after the transfer of the paper to May, and is now residing in Texas, and is insolvent. That just before the exhibition of the bill, Nabors ascertained the fact of transfer to May, when he called upon him, showed him Patterson’s receipt, and requested control of the judgment and collection of the money, which May refused.</p> <p>The bill prays a decree that May surrender all conü’ol over the judgment and collection of the money to the complainant, and that the writing obligatory, if required by him, may be withdrawn from the files of the court, and for an injunction restraining May, his attorney, &c. from collecting the money.</p> <p>The answer of May denies all knowledge of the transactions between Patterson and Nabors, except from information from the latter, and requires strict proof of all the allegations affecting his rights. It admits the suit and recovery of the judgment against White on the writing obligatory, in the name of Nabors for his use, and sets forth in detail, how he acquired possession of the paper, which was thus:</p> <p>Early in 1840, one Ja’s Hatter of Greene county, residing about a mile distant from the residence of May, offered to trade the writing obligatory with him, and then informed May that he had received it from Patterson, who then was residing at Eutaw, in the same county, in payment for a quantity of corn delivered to Patterson. May agreed to give Hatter, for the bond, a quantity of corn, estimated at $110, a quantity of lumber and groceries worth $20 and to pay him $35 in cash, when the money should be collected on the bond making in all $166, provided he should be satisfied there were no offsets against it. Before receiving the bond, May went to Eutaw in company with Hatter, and called on Patterson for information with respect to the bond, and was assured by him that the paper was perfectly good, and that there were no offsets against it. May having no information or suspicion that Patterson had fraudulently or improperly sold the bond to Hatter, but believing Patterson had been fairly and honestly the owner of it, and also that he had sold to Hatter for a full, fair and valuable consideration, took it from him on the terms agreed on, and delivered the corn, lumber and groceries, and bound himself to pay the remainder when collected. The evidence for the complainant established the receipt of Patterson; and that of the defendant May, very fully sustained his answer as to the sale of the bond by Patterson to Hatter, and by him to May.</p> <p>The chancellor decreed in favor of the complainant, and awarded execution against May on a refunding bond executed by him with sureties, he having collected the money on the judgment, but directed the -execution to be credited with 25 dollars and the accruing interest, that sum appearing from the receipt to be due from Nabors to Patterson, and which was to be retained by the latter out of the note when collected.</p> <p>insisted that the decree should have been in favor of May, inasmuch as Nabors had confided the bond to Patterson for collection, and thus enabled him to perpetrate a fraud upon Hatter, and through him upon May, who was an innocent purchaser for a fair consideration. It might also be considered as within the scope of Patterson’s authority to trade off the note for its value in corn. Another feature in this case distinguished it from a mere case of agency. — ■ Patterson had an actual interest in the bond for the amount due him from Nabors, and this circumstance would sustain a sale of it.</p> <p>was stopped by the court.</p>

The bill was filed by the plaintiff in error, to foreclose a mortgage on slaves and other property, executed by Thomas Crawford on the 26th March, 1889, to secure them as his sureties upon two notes payable to the Branch Bank of Mobile, on the 1st of May, 1839 and 1840, amounting in the whole to $12,676 91. By the terms of the deed, the mortgagor was to remain in possession of the property until the mortgagees sustained loss or injury by reason of default of payment.

WRIT of error to the Circuit Court of Benton. This was an action of debt, at the suit of the plaintiff in error, against the defendants. The suit was brought for the use of James L. Simmons, administrator de bonis non, with the will annexed, of Wm. Burns, deceased, against Wm.

Whit of Error to the Court of Chancery of the 3d District of the Southern Division. The case made by the bill is this : Croom had sued out bailable process against Davis, for a debt of 1500 dollars or more, by reason of which he was arrested; and in order to discharge himself from custody, applied to a justice of the peace, to obtain the benefit of the act to abolish imprisonment for debt, by filing a schedule of his estate.

This was a petition by the plaintiff in error to the Judge of the sixth judicial circuit, praying an order to restrain the sheriff from executing a writ of habere facias possessionem which had issued upon a judgment to which he was not a party. The Judge granted the order in vacation, and at the return term of the writ, on motion of the plaintiffs in the judgment, quashed the order so made.

Writ of Error to the Circuit Court of Sumter. This was a trial of the right of property under the statute, in which the plaintiffs in error were the plaintiffs in execution, and the defendant the claimant. The material facts of the cause, as well as the questions of law proposed to be revised, are shewn by a bill of exceptions sealed at the instance of the plaintiffs. 1.

This is a proceeding, by way of libel, commenced on the 18th day of March, 1840, against the steamboat Robert Morris, which, after seizure, was claimed and stipulated for by Alphonso Brooks.

This was a motion by the plaintiff in error, to quash an execution. The facts were, that the defendant in error obtained a, judgment against the intestate of the plaintiff, upon which execution issued; after which, and before the return day thereof, intestate died. No other execution issued on the judgment for more than a year afterwards, when an alias was issued and levied on certain slaves of the deceased, in the hands of the plaintiff in error, as his administrator.

On points referred as novel and difficult from the Circuit Court of Shelby.

1. When the record discloses that a cause has been in court for three years, and has once been continued by consent, the judgment will not be reversed, although no service or writ appears in the transcript, and although the appearance of the defendant’s attornies is on their motion stricken out. The proper course, if there was no service or waiver, was for the defendant to explain the condition of the record, by affidavit, and ask its correction.

Action for breach of covenant by the plaintiff against the defendant in error. The action is for a breach of covenant of warranty, in a deed for a lot in the town of Greenville.

The petitioner was indicted in the Circuit Court of Shelby for an assault and battery upon Westley Gragg, with the intent to murder him. Thereupon, he moved the court for a commission to take, by deposition, the testimony of a witness resident in the State of Mississippi — first showing by a letter from'the witness, and his own affidavit, that the evidence would be material and important for his defence.

<p>1. The administrator of an intestate, against whom a judgment has been recovered, when living, is the proper party to sue out a writ of error, and may do so on application to the clerk. If he supersedes the judgment, it may be affirmed with damages, as in other cases.</p>

<p>1. A conveyance of land, by one against whom the land conveyed was held ad. versely by claim of title, is void.</p>

<p>1. Where one has been in possession of land for several years, built a house and made other valuable improvements thereon, the inference is, that his occupancy is legal, and that he has such an interest as may be sold under execution. The purchaser of land thus occupied, at a sale under execution, may maintain an action to recover the possession of the occupant.</p>

<p>Weit of Error to the County Court of Sumter County.</p> <p>This is a proceeding by Camp, as the judgment creditor of one Chiles, to subject a debt due to the latter by Saunders. The judgment entry recites, that the garnishee answered an indebtedness of 119 dollars, for which judgment was given, and on which, this writ of error is prosecuted.</p> <p>The transcript sent to this court, sets out an answer of Saunders, in writing, purporting to have been sworn to in open court, the 16th February, 1343, (the judgment is entitled ofFebruay term, of the same year) but no reference is made to it in the judgment entry, nor does it appear that any exception to the judgment •was then made.</p> <p>This answer states, that the garnishee, on the 4th January, 1843, was indebted to Chiles, in the sum of 119 dollars. That in the forenoon of the same day, he agreed to accept an order from Chiles, in favor of one Chapman, if Chiles would give it, for the balance which might be due him on settlement. Chapman presented a written order from Chiles, in the afternoon of the same day, but the garnishee process had then been served.</p> <p>insisted, the answer could be looked into, for the purpose of showing that the court erred in arriving at the conclusion of indebtedness. [Fortune v. State Bank, 4 Ala. Rep. 385.]</p> <p>If the answer is examined, it will be seen there is no admission of an indebtedness to the plaintiff; so far from this, he alleges that he had promised before the service of the process, to accept an order in favor of Chapman, for the amount due Chiles. This is, in effect, the denial of indebtedness to Chiles, and an admission that he owes Chapman. [1 Stewart, 9; 3 Porter, 105; 6 ib. 365; 1 Ala. Rep. N. S. 38; ib. 421; 2 ib. 177; 4 ib. 386.]</p> <p>relied on the case of Gaines v. Bierne, [3 Ala. Rep. N. S. 114,] as settling that the answer cannot be looked into. But, if it can, the decision in Kennedy v. Geddes, [8 Porter, 263,] repeated in the same case in 3 Ala. Rep. N. S.. shows that a naked, verbal promise to accept a bill not in esse, is not binding.</p>

<p>1. Under the act of 1829, the circuit Court may appoint a trustee, upon the death of the trustee appointed in the deed.</p>

<p>1. Where an administrator makes a warranty of the soundness of personal proper, ty belonging to his intestate’s estate, which he sells under an order of court, he is chargeable for a breach in his representative character.</p>

Wurr of error to the Circuit Court of Baldwin county. Assumpsit by Preston against Davis, upon an agreement in writing made between the parties, the 31st January, 1839. By the terms of the agreement, Preston undertook to stay at, superintend and keep in repair certain mills, belonging to Davis, for twelve months from the 1st January of the same year.

This was an action of assumpsit by the defendant in error, as bearer of two bills of exchange against the plaintiff in^ error, as acceptor of one, and as drawer of the other. The declaration'contains two counts in the usual form, by the plaintiff as bearer, against the defendant as drawer and acceptor, and also the common counts — and upon the general issue, with notice of the set-off; the plaintiff had a verdict.

<p>3. A Judge of the Gircnit Court is not authorised to award a mandamus in vacation, and the refusal to do so, however meritorious the grounds of the application may be, does not authorise the Supreme Court in virtue of its general' superintendence and control of inferior jurisdictions, to grant the writ.</p>

<p>Wkit of Error to the Circuit Court of Mobile county.</p> <p>Assumpsit by De Forest, Morris & Wilkins, on a bill of exchange, drawn in their favor by A. B. Wooldridge, agaist Child, Hibbler and Pearson as acceptors.</p> <p>Child pleaded his discharge as a bankrupt, and the plea was confessed. Hibbler & Pearson pleaded the general issue, supported by an affidavit, that the bill was not accepted by them, or by any one with authority from them.</p> <p>At the trial on this issue, it appeared the drawer of the bill was a plantel, and desired certain hardware. He went to Child, one of the firm C., H. & P., and requested him to give the security of the firm to De Forest, Morris & Wilkins, who were hardware merchants, and willing to credit Wooldridge on that condition. The goods were delivered to Wooldridge, and he drew the bill, which was accepted by Child, in the firm-name of Child, Hibbler & Pearson. C., H. & P. were commission merchants and partners in trade in Mobile, but in no way indebted to Wooldridge, nor doing his business. The business of the finn was to receive from the country, and sell on commission, cotton, which might be sent to them for that purpose. The bill was accepted for the accommodation of Wooldridge. These facts were known to the ' plaintiffs. On this state of proof, the court charged the jury, that they might infer from these facts, that the acceptance of the bill was within the business of the firm, and that the defendants were liable on it.</p> <p>This charge was excepted to, and is now assigned as error.</p> <p>cited Mauldin v. State Bank, [2 Ala. Rep. N. S- 502.]</p> <p>argued, that the. office and business of commission merchants, required them to accept bills for their employers or principals, drawn on funds in their hands, or expected to be placed there.</p>

<p>This was a motion for a mandamus. The petition sets forth that the plaintiff in error brought a suit in the circuit court of Benton county, on a bill of exchange, against the defendant in error and two others. That at the trial, the defendants suggested, that two of them had applied to the district court of the United States, for the benefit of the bankrupt law, and prayed a continuance. That the court, without his consent, and against his will, continued the cause as to two of the defendants; that the cause was then tried upon an issue as to the remaining defendant, (the plaintiff in error)' and verdict and judgment for the plaintiff below. That he is advised that this erroneous action of the court will work a discontinuance of the cause, and if he is compelled to sue again, the action may be barred by the statute of limitations. He, therefore, prays a mandaimcs to require the circuit court to set aside the continuance of the cause, and the subsequent proceedings, and to reinstate the cause in the same condition as before the erroneous action of the court.</p>

WRIT of error to the County Court of Montgomery. This was an action of assumpsit, by the plaintiff in error against the defendant. The cause was tried by a jury, who returned a verdict for the defendant, on which a judgment was rendered.

Weit of Error to the County Court of Butler County. Assumpsit on the money counts. The suit was tried on the general issue, and on the pleas of payment and set-off. The plaintiff gave in evidence, the record of a judgment obtained in the circuit court in favor of Daniel E. Starr, against 'William Burk, which showed an action of detinue to recovera slave.

Eeuoh to the County Court of Talladega. At the trial term of the cause, it was dismissed by the court, because security had not been given for costs, the plaintiff objecting, that no notice had been given, and that he was then ready to give the security.

Wan? of Eitoi’ to the Circuit Court of Mobile. This was an action on the case, by the plaintiff in error, to recover damages of the defendant. 1. Because, as sheriff of Mobile, he levied on certain goods, &c. in a store house which the plaintiff had rented to George Harrington and Noah Harrington, and refused, on demand, to pay to him the rent due. 2. Because he unlawfully detained and kept possession of the store for several months.

. Wkit of error to the Circuit Court of Sumter county. The record discloses, that this suit was instituted in the county court of Sumter county, and thence was transferred to the' circuit court, because the judge of the county court was of counsel for one of the parties.

Petition by the defendant in error, to sell lands. The petitioner alleges, that he is the administrator of one Da vid McCord, dec’d; that the deceased died seized of certain lands, which are described in the petition by their designation at the land office.

Whit of error to the circuit court of Russell. This was a proceeding under the statute for the trial of the right of property.

<p>1. When a bill is filed to restrain a suit at law, on grounds of defence which could he available at law, if sustained by sufficient evidence, and it is alleged in the bill that the facts constituting this defence can only be established by evidence -from the defendants to the bill; — this is a bill for discovery merely, and on the doming in of the answer of the defendant, denying the equity, it is proper for the chancellor to dismiss the bill when ho dissolves the injunction.</p>

Trrrs was an action by the plaintiff against the defendant in error, and two others, on a bond of indemnity.

<p>Whit of error to the county court of Mobile.</p> <p>This was an action of assumpsit, by the defendant in error against the plaintiff. The declaration was on a writing called a due bill, or promissory note, in the following words, &c., viz: “$542 — 16. Mobile, Dec. 13 th, 1838. Due Wm. Moore, for moneys which I have collected from his effects, and put into the house of J. & P. Paine & Co., over and above what I have paid out for him while acting as his agent, from March 1st, 1837, to 1st Dec. 1838, five hundred and forty-two 1G-100 dollars.</p> <p>Parker Paine.”</p> <p>To this count was added the common counts lor money had and received, and collected for the plaint.ff, at his special instance ank request; and, also, on an account stated for $542 16.</p> <p>The cause was tried by a jury, who rendered a verdict, in damages, for the amount stated in the writing, with interest thereon; and a judgment was rendered accordingly. On the trial, a bill of exceptions was sealed, at the instance of the'defendant, from which the case may be thus stated, viz:</p> <p>The plaintiff read to the jury the writing declared on. It was then proved, on the part of the defendant, that the plaintiff was a member of the firm of J. & P. Paine & Co at the time the credit, mentioned in the writing, was given him. The members of the firm were the plaintiff, defendant and James Paine. James Paine and the defendant were the active partners. It was also proved, that the plaintiff was absent Horn Mobile during the year ■-, and left the defendant as his agent to hire out his negroes, rent his houses, and collect the hire and rent of the same; that the plaintiff had eight or ten negroes thus hired out, all of whom, together with the real property rented by the defendant, had no connection wfith the firm. The defendant had credited the books of J. & P. Paine & Co., as stated in the writing adduced by the plaintiff It was proved, further, by one of the defendant’s witnesses, that, as the agent of the plaintiff, he called upon the defendant to collect the writing in question, and his answer was, that he was not able, or had not the money to pay the same. Upon this evidence, the defendant, by his attorney, prayed the court to charge the jury, that crediting the books of the firm of J, & P. Paine & Co., with the amount sued for, was a payment of the money to the plaintiff, and the plaintiff could not recover; which charge was refused. The court charged the jury, that, if they believed the defendant was the agent of the plaintiff, and collected the hire of his negroes and rent of his houses, and credited the books of the firm with the- amount thereof, without the plaintiff’s knowledge or consent, such a credit would not prevent the plaintiff from recovering in this case. The defendant further prayed the court to charge the jury, that the writing described in the declaration, was not a promissory note, and, from the proof, a suit at law could not be maintained upon it. This charge was refused by the court; and the jury were instructed, that a suit might be maintained upon the writing.</p>

<p>Whit of error to the Circuit Court of Benton county.</p> <p>This suit was commenced by Henderson against Kenum, in a justice’s court, and Kenum appealed to the circuit court. No declaration or statement is on file, nor is there any matter disclosed in the transcript to induce a presumption that the suit is founded on a writing ascertaining the amount of the debt. A judgment by default was taken, and a writ of inquiry awarded at one term; but this was afterwards set aside,and a judgment final was entered, as on default, for 18 61-100 dollars, besides costs ; but it does not appear that the facts, upon which the defendant was charged, were passed on by the court.</p> <p>This judgment is now assigned as error.</p>

<p>1, A stranger to a judgment or decree of the orphans’ court, cannot carry it by certiorari to the circuit court; and if the circuit court should determine on the errors assigned, its judgment will bo reversed and remanded, that the order granting the certiorari may he quashed,* and this may be done on the application of the party at whose instance the cause was removed into the circuit court.</p>

<p>Wb.it of Error to the County Court of Tuskaloosa.</p> <p>This was a proceeding by notice and motion, under the statute, at the suit of the plaintiff in error against the defendant, as the in-dorser of á bill of exchange drawn by R. J. Inge, at Tuskaloosa, on the 1st of October, 1838, for the sum of five hundred dollars, payable at twelve months after date. The defendant pleaded, 1. Non assumpsit. 2. That the bill in question was made to be sold to the plaintiff, under the terms and regulations under which the Bank agreed to advance their bills upon cotton, to wit, “upon the 23d of October, 1838, at the place, &c.” that the defendant indorsed the bill at the request, and for the accommodation and exclusive benefit of the drawer: of all which the plaintiff had notice at the time of its purchase, at, to wit, &c. That the consideration and inducement of the defendant to indorse the bill was, that the drawer had before that time, to wit, on the 23d of October, 1838, deposited ten bales of cotton in the ware-house at De-mopolis, and at the time of the negotiation of the bill, gave the plaintiff the receipt of, or order upon the ware-house keeper, for the same. It is then alleged, that the cotton was of the value of one thousand dollars; and further, that the plaintiff agreed with the defendant to take and sell the same and apply the proceeds thereof to the discharge of the bill before the defendant should be called on to discharge any part of it — all of which the plaintiffs have failed to do; and the defendant is ready to verify, &c. On the first plea, the plaintiff took issue, and to the second he demurred; his demurrer being overruled, he replied, that although it was agreed to take and receive of the drawer of the bill, the cotton in the plea mentioned, yet when the time had arrived for the demand and delivery of the same, it was demanded according to order of the ware-house keeper, and a delivery refused, &c. Issue being joined upon the replication, the cause was submitted to a jury, who returned a verdict for the defendant, and judgment was thereupon rendered. From a bill of exceptions sealed at the trial, it appears, that in order to prove the fact of the protest of the bill of exchange upon which the action is founded, the plaintiff offered in evidence, a formal protest signed thus, “J. H. Adams, Notary Public.” It appeared that a seal of metal, or other hard substance, had been impressed upon the paper about the place where notaries usually put their seals to such official acts; but the entire device of the seal was not legible. The defendant then proved, by a witness, that he had seen the notary, J. H. Adams, who is now dead, frequently write, and knew his hand wilting, that he did not believe the signature to the protest to be in Ms hand writing; if it was, it was unlike what he had seen him write. To the admission of this evidence, the plaintiff objected, but his objection was overruled; thereupon, the court excluded the protest, and plaintiff excepted, &c.</p> <p>The demurrer to the second plea, should have been sustained, because it does not show that the plaintiff was a party to the agreement under which the •defendant indorsed the bill, and for the further reason,, that the plea sets up a parol agreement to defeat a written contract.</p> <p>The notarial protest was improperly excluded from the jury— the proof went merely to question the genuineness of the signature without denying the seal of the notary. But be this as it may, the court should not have taken upon itself to decide against the protest; it should rather have been left to the jury to determine upon the sufliciehcy of the evidence.</p> <p>It is not necessary that a notary should subscribe a protest with his own hand — it may be signed by a clerk, or the signature may be printed, or even omitted entirely, if the seal is undisputed. [25 Am. Jurist, 350.j</p> <p>Tiie effect of the agreement set out in the second plea was, to place the cotton under the control of the Bank, and whenever the ware-houseman’s receipt was delivered to the plaintiff, the pledge became •complete. If the cotton was not delivered on demand, the plaintiff should have proceeded against the ware-house keeper, and •cannot charge the defendant until this remedy has been pursued. The Bank gave no notice of the refusal to deliver the cotton, and made no effort to rescind the contract for its shipment; and it must be considered as s.till continuing.</p> <p>The duties of a notary cannot be performed by a clerk or other .person; and it is not only necessary that he should seal a protest, but he must sign it also. [The Onandaga county Bank v. Bates, ■3 Hill’s Rep. 53.J</p>

<p>Whit of Error to the County Court of Coosa county.</p> <p>The first proceeding in this cause is, a summons of garnishment, signed by J. M. C. Logan, sheriff of Coosa county, and directed to Clark. It recites, that a judgment was rendered, and execution issued in the county court of Coosa county, at the Janu-ry term of that court, wherein Eli E. Garthor is plaintiff, and Edward Camp is defendant, for the sum' of 671 dollars, which execution had been placed in said sheriff’s hands, to do execution thereof. It then proceeds to notify Clark to appear at the next term of the county court of Coosa county, to be held on the 4th Monday of July, 1839, to answer, &c.</p> <p>At the January term, 1840, a judgment ni si, was rendered against Clark for want of appearance. On this, a writ of sci.fa. issued, returnable to the July term, 1840, which was not served, but notwitastanding, the judgment was made final.</p> <p>Clark here assigns as error, that the county court erred,</p> <p>1. In giving judgment when there was no affidavit to support the writ of garnishment.</p> <p>2. Because there was no return of nulla bona upon the execution.</p> <p>3. Because there was no service of the wilt of garnishment.</p> <p>4. Because there was no service of the sci.fa.</p>

EeRoe. to the Chancery Court of Mobile. Motion to dismiss the writ on the ground, that the decree is not final, but interlocutory merely.

Wjmt of error to the circuit court of Wilcox. This was an action of assumpsit on a promissory note, in the name of Edwards, for the use of Burke & Ratcliff, against the plaintiff in error. The defendant below pleaded in bar, that the plaintiff, Edwards, ought not to have and maintain his action, because he departed this life previous to its commencement.

<p>1. A contract, for the sale of a horse, which is not reduced to writing, but for the price of the horse a note is given, is not affected by the rule that written contracts cannot be explained by parol evidence. In such a case it is competent to prove by parol that the note was to be returned if the horse died.</p>

<p>I. A defaulting witness, in a civil cause, may, upon scire facias excuse himself for his failure to attend in obedience to the subpcena, by his own oath*</p>

Wiut of error to the County Court of Talladega. This was an action on the case, at the suit of the defendant in error, to recover damages of the plaintiff, for the failure to levy an attachment placed in his hands as sheriff, on the 27th of Octo- On the trial, the defendant excepted to the ruling of the court. The bill of exceptions shows : 1.

Writ of Error to the Circuit Court of Washington county. Assumpsit by Camfield against Crawford, as the maker of two promissory notes, and as the endorser of a third. The declaration contains counts on each of the notes, and also a general money count.

Attachment by the defendant in error against Jones; Wafer being summoned as garnishee. The defendant in attachment failing to appear, a judgment by default was rendered against him. The garnishee appeared and answered, denying being indebted to the defendant in attachment. An issue was made up under the statute, and the jury found that he was indebted to the defendant in attachment.

<p>Wmt of Error to the Circuit Court of Tuskaloosa.</p> <p>This was an action of assumpsit, at the suit of the defendants in error against the plaintiffs, on a pomissory note, of the following tenor.</p> <p>“f 1,824 37. New-York, August 25, 1836.</p> <p>Twelve months after date, we, the subscribers, of Erie, State of Ala., promise to pay to the order of Granger, Birch, & Co., eighteen hundred and twenty-four dollars and thirty-seven cents, at the Merchants’ Bank, New-York, for value received.</p> <p>Beal & Bennett.”</p> <p>On which note, are the following indorsements, viz. “New-York, February 24, 1837, Granger, Birch & Co.” New-York, February 24, 1837. B. F. Lee, & Co. The cause was tried on the pleas of non assumpsit, payment and set-off. On the trial the defendants excepted to the ruling of the court. From the bill of exceptions it appears, that after the plaintiffs introduced the note declared on, with the indorsements set out above, the defendants gave in evidence two promissory notes made by Granger, Birch & Co. for $1,762 63, each, dated New-York, 25th July, 1838, payable at nine months after date, to the order of Mc-Nulty & Chapman, and by them indorsed to the defendants; and further proved, that these notes were transferred to the defendants before the maturity of the note sued on, aud before they had notice of the assignment thereof. It was further shown by the defendants, that the signatures and indorsements of the notes which they offered as sets-off, were genuine, and the notes transferred to them unconditionally. This was all the evidence adduced; thereupon, the defendants moved the court to charge the jury, that the plaintiffs could not recover without proof, that notice of the transfer of the note sued on, had been given before they became proprietors of the notes offered as sets-off. This charge was refused, but the court charged the jury, that the note sued on being payable at a bank, was a commercial paper, subject to the law merchant, and if transferred before maturity, was not subject to set-off. A verdict was returned for the plaintiffs, and thereupon, judgment was rendered.</p> <p>insisted, 1. That the written date to the indorsements, was no evidence that they were' made on that day. 2. The note sued on, is not of that class, which by the laws of this State, are made subject to the law mer--chant. 3. The law of set-off, is the law of the forum, and although in New-York, the note may bo governed by the principles of mercantile law, yet being sued here, any defence peculiar to the forum, must be governed by our laws. [Story’s Conf. of Laws,481: 2N. Hamp.Rep. 298, Gibbs v. Howard;3 Johns. Rep. 263, Ruggles v. Keeler; 1 Poth. on Ob. 641-2; 2 Id. 101, N. 12.]</p> <p>The reason given by the circuit Judge, viz: that the note being payable at a bank, was not subject to a set-off, may be incorrect, but a judgment will not be reversed for an erroneous reason, where the conclusion was correct. [2 S. & P. Rep. 428; 5 id. 195; 7 Porter’s Rep. 40; 9 id. 403; 1 Ala. Rep. N. S. 423.] The note was payable in New-York, and as we cannot judicially know what the laws of that State are, we must suppose that the English common law prevails there; according to which, the note is clearly negotiable.— [Minor’s Rep. 387; 1 Porter’s Rep. 388; 1 Ala. Rep. 80; 2 id. 392; Gray v. White, June Term. 1843; Dunn v. Adams, Parme-ter & Co. 1 Ala. Rep. 527; 3 Kent’s Com. 72, and note a 77; Chitty on Bills, 218, 583.] A negotiable note, transferred before maturity, to an innocent holder, is not subject to sets-off, existing between the original parties. [Chitty on Bills, 6; 4 Dal. Rep. 307; 16 Wend. Rep. 659.] The lex loci contractus, must determine the character of the security — what rights it confers, and obligations imposes. [Story on Bills, § 129, 139, 161; Story’s Conf. of Laws, § 283, 556. 353 a 565, 566; Story on Bills, § 158, 173; l'Bing. New Cases, 151, 159 to 161; Story’s Conf. of L. § 317, 332,343,344; 16 Martin’s Rep. 277.] The case cited by the plaintiff in error from 2 New-Hamp. Rep. does not lay down the law correctly. [Story’s Conf. ofL. 481.[</p> <p>Where a bill or note, is indorsed in blank, it is a legal presumption, that the transfer was made before its maturity. [3 Day’s Rep. 311; 5 Mass. Rep. 335; 8 Wend Rep. 600.]</p>

<p>Weit of error to the Circuit Court of Russell county.</p> <p>King, the present plaintiff in error, was summoned as a garni* slice, at the suit of Moore against Lewis, and answered, that ho had in his hands 113 dollars belonging to the defendant, the remainder of the proceeds of a sale made by him as constable, after satisfying the fii. fas. directed to him. In a supplemental answer, he asserts the money had been demanded from him by the defendant in execution, and that he had received notice of a rule against him to pay over the money.</p> <p>The court rendered judgment against him for the amount of the judgment previously rendered against the defendant in attachment, which Was less than the sum in his hands. He now assigns the judgment as error.</p> <p>relied on the case of Zurchcr v. Magee, [2 Ala. Rep. N. S. 253.]</p>

This was a suggestion, under the statute, by the defendant in error, against the sheriff of Sumter, alleging that, by due diligence, he could have made the money on an execution of the defendant in error. The sheriff appeared, and an issue was made up upon the suggestion, and the jury found, that the sheriff could have made the money on the plaintiff’s execution, by due diligence.

Writ of Error to the Orphans’ Court of Butler. From the record it appears, that the defendant in error, on the 21st September, 1840, propounded for probate, a testamentary paper, and made an affidavit, that the same was the last will and testament of Josiah Hill, dec’d, &c. This paper is attested by five names as subscribing witnesses, but was admitted to probate upon the affidavit of two of them, deposed to in open court, declaring,‘that they were personally present, and…

<p>I» The act of 1821-, [Clay’s Dig. 506, § 3,] does not give the landlord a lien on the crop raised on the rented land ; it merely declares that, as between the landlord and an execution creditor, the former shall be entitled to preference, to the ex. tent of one year's unpaid rent.</p> <p>2. A count, of a declaration asserting that a landlord had a lien upon certain chattels, Which has been destroyed by the act of the defendant, is bad, without show* ing how the lien was created : the existence of a lien is the conclusion of the law upon certain facts, and thejr should he stated, in order that a judgment may he formed of the existence of tíre lien.</p>

<p>Error to the Circuit Court of Talladega.</p> <p>The defendant pleaded in abatement of the action, that he was not sued in the county of his residence. The plea was sworn to before a justice of the peace. To the affidavit was appended a certificate of the county clerk, certifying the official character of the justice, with the county seal attached. To this plea, the plaintiff demurred, and the court overruled the demurrer. Thereupon, the plaintiff moved the court for leave to take issue on the plea, which the court refused, and rendered judgment for the defendant. This is now assigned for error’.</p>

<p>1. A writ of error will not lie, from an order of court, permitting a sheriff to amend his return to a fieri facias; the party prejudiced by such order has a remedy by mandamus, to cause it to bo vacated.</p>

WRIT of error to the County Court of Marengo county. Assumpsit by Graves & Hogan against Alston for medicines and medical services.

The bill was filed by the plaintiff in error, and charges, that he obtained a judgment against Ticknor in the circuit court of Mobile, for $2,233 17, that execution has issued thereon, and been returned, no property found.

Writ of error to the County Court of Mobile. This was an action of assumpsit, at the suit of the defendant in error against the plaintiffs. The declaration contains a number of counts, among which were several seeking to charge the defendants for the proceeds of sixty-nine bales of cotton, which they had shipped to, and caused to be sold in Liverpool for the plaintiffs’ account and benefit; in addition to which, the common counts are added.

Andrew's filed a petition, in which he set out that he was the purchaser of certain premises sold on the 1st day of June; 1843, under a decree of foreclosure made in a suit in equity, wherein he and two others, as partners under the firm of Andrews & Brothers, were complainants ; and Basil Meslier, the mortgagor, Jonathan S. Beers, Adolph Batre, the New Orleans and Cafrol-ton Railroad Company, and several others named therein, were defendants.

EeRok to the County Court of Randolph,. This was a proceeding before the judge ©f the- eounty court of Randolph, against the sheriff of the county, at the instance of one of his sureties.

WRIT of .error to the Circuit Court of Mobile. From the record in this ease, it appears that the defendant in error, on the 14th September, 1836, caused an attachment to be issued against the estate of Nelson Phillips, returnable to the circuit court of Mobile, for the recovery of a promissory note for “ one hundred and forty-one 25-100 dollars, due sixty days after the 16th August, 1836.” This attachment was placed in the hands of T. L, Toulmin, then sheriff of Mobile…

Weit of Error to the Circuit Court of Pike county. Nabors was indicted at spring term, 1843, of the circuit court of Pike county, for slave stealing.

The action was brought by the plaintiff in error, as sheriff of Madison, to recover from the defendant in error the difference between the sum bid by him for several tracts of land, sold under execution, and the price for which they were subsequently sold on his refusing to complete the purchase.

Wbit of Error to the Circuit Court of Tuskaloosa. This was an action of assumpsit at the suit of the defendant in error, against the plaintiff, for the breach of a parol warranty of a slave sold by the latter to the former, for the sum of five hundred and fifty-three dollars.

Whit of Error to the Circuit Court of Mobile county. Assumpsit by Dawes & Co. against Hodges, to recover the amount of an account for a carriage and setts of harness. At the trial, the deposition of one Mitchell, was .offered by the plaintiffs, and resisted by the defendant, upon the ground that the witness was interested in the event of the suit. The witness deposed, that he was the agent of the defendant, under a written power of attorney, which he produces and proves.

<p>Error to the County Court of Washington.</p> <p>This was a proceeding by the defendant in error against tho plaintiff in error, for a settlement of the estate of the defendant’s ' wife’s father.</p> <p>The petition of the defendant in error to the Judge of Washington county court, is as follows: The petition of William G. Vastbinder, of the county of Baldwin, sheweth, that by a recent marriage with one of the heirs of Nathan Blackwell, dec’d, he has become interested in the final settlement of said estate. That the said Blackwell died intestate, seized of an estate in Washington county, on or about the year 1808 — that Priscilla Blackwell, wife of said Nathan, became administratrix of said estate — that the courthouse and clerk’s office of Washington county, was during this administration destroyed by fire, so that all the papers relative to said administration were destroyed — that James and David Blackwell, sons of the deceased, have been managing the estate much to the prejudice of the other heirs — that since his marriage, petitioner has frequently requested a settlement of the estate, both from the administratrix and her sons, which they refuse to make, and prays that the administratrix may be brought before the court, and compelled to account, &c.</p> <p>Upon this petition, a citation issued to the administratrix, and was executed as follows: “You are hereby commanded to make known unto Priscilla Blackwell, administratrix of Nathan Blackwell, dec’d, if to be found in your county, that she is hereby required to appear before the Honorable the Judge of Washington county court, on the 3d Monday of July next,, and then and there make a shewing, of how and in whaf manner, she has administered and disposed of the estate of said deceased. And further, to do and perform the orders and decrees of said court.”</p> <p>The administratrix failed to appear, and at the July term the Judge proceeded to a final settlement of the estate, taking as the basis of the settlemont, a paper found among the records of the office, which purported to be an inventory of the personal property of the deceased, amounting to the sum of $1,435 25, and rendered a judgment in favor of the defendant in error, against the administratrix, for one fifth part thereof, with interest from the 5th October, 1807.</p> <p>From this decree, this writ is now prosecuted. The assignments of error are, 1. The court of Washington had no jurisdiction.</p> <p>2. The citation was illegal, informal, and insufficient.</p> <p>3. There was no proof of any liability on the part of the plain-tiffin error.</p> <p>4. The court erred in rendering judgment in favor of one dis-tributee, without including the others.</p> <p>5. In not giving the notice required by law.</p> <p>6. In rendering judgment in favor of the defendant in error, without including his wife.</p> <p>cited 3 Ala. Rep. 670; 4 id. 632; 4 Porter, 332; Clay’s Dig. 226, § 28; id. 223, § 11; id. 304, § 42,' 44; 1 Ala. Rep, 594-'</p>

Weit of Error to the Circuit Court of Fayette. This was an action of trespass, at the suit of the plaintiffs in error, to try the title to certain tracts of land, particularly described in the declaration, as well as to recover damages of the defendant, by reason of the occupancy of the same, by him. The cause was tried upon the plea of “ not guilty, and a verdict returned for the defendant, on which a judgment was rendered.

Whit of Error to the Circuit Court of Mobile county. , Action of detinue, by Henry, to recover a slave from Seawell.

Ejectment by the defendant against the plaintiff in error.— Upon the trial, the plaintiff below offered in evidence, that the land sued for was parcel of a tract of land known as the De Lus-ser claim; that the father of the lessors of the plaintiff,in 1820, or 1824, caused it to be surveyed into lots, and that it was divided between the heirs of De Lusser, and the father of the lessors of the plaintiff.

<p>1. Land was levied on under an execution issued by a justice of the peace, and ail order made by the Circuit court directing its sale ; the costs, up to the time the papers were returned to court, wore $3 81-100, and the entire costs arc stated in the venditioni exponas, at $13 81-100. The order of court is, that the sheriff ' “ be commanded to sell, &c.,” and the terms of the venditioni exponas arc, that he is “ commanded to cause to bo made of the lands, &c.: ” Held, 1. That the inference is, that the costs were increased by the action of the Circuit court, h 2. That the legal effect of the terms employed in the order and venditioni ex-ponas is identical; consequently, there was no variance between them.</p> <p>2. Quere? will a purchaser at a sheriff’s sale be affected by a variance between the • venditioni exponas, and the order under which it issued, if the writ is not void.</p>

WRIT of error to decree of the judge of the country court of Wilcox county on a petition for dowei.

This was a motion by the Bank against the plaintiff in error, on a note negotiable and payable at the Bank by Ransom Covey, as principal, and the plaintiff in error and one James Rogers as his sureties.

Weit of error to the Circuit Court of Greene. This was a proceeding against Locke, late sheriff of Greene, and the other defendants, as his securities, suggesting that the former, with due diligence, could have collected the amount of a fieri facias, which had been placed in his hands as sheriff to execute and return. The defendants pleaded, 1. Not guilty. 2.

Wuit of error to ihe County Court of Benton county. Motion by Cloud, for judgment against Price, as sheriff of Benton county, and the other defendants, as sureties upon his official bond. The notice of the motion alleges, that a Ji.fa, issued from the county court of said county, on the 26th July, 1841, in favor of Cloud, against Erasmus R. Burt and George Morgan, for $ 121 87, and $13 31 costs, returnable to the then next term of said court.

Assumpsit by the defendant against the plaintiff in error. The declaration contains the money counts. Upon the trial, the plaintiff offered in evidence the following instrument of writing, proved to have been made by the defendant’s intestate.

Wmt of error to the Circuit Court of Barbour. This was an action of assumpsit, commenced by attachment / on two promissory notes, at the suit of the defendant in error' against the plaintiff. A judgment was rendered for the plaintiff for the amount of the notes and interest, reciting that the defendant had withdrawn his- plea. Previous to the rendition of the judgment, the defendant excepted to the ruling' of the court.

<p>1. Where a father, upon the marriage of his daughter, or afterwards, sends home a slave with her, which remains in the husband’s possession for ten years, the presumption that it was a gift, must be explained or rebutted by satisfactory proof that it was notoriously understood not to be y gift at the time; and even ifther.e is such proof, it is not too much to say that a strong presumption arises, which will warrant the inference of a subsequent absolute gift, when the contest is between a creditor and the donor.</p>

This was a petition to the circuit court, for amandamus to the defendants.

This was an action by the defendant, in error against the plaintiff, to recover damages for an assault and battery upon his person. The cause was tried on the plea of not guilty, and accord and satisfaction.

<p>1. In a summary proceeding against a constable and his sureties, for failing to pay over money collected by virtue of an execution, tile question to be tried is not merely whether money was collected, but is also, whether it was collected by virtue of the particular execution, which the plaintiff describes in his notice ; consequently a misdescription of the execution is a fatal defect, and when it is doubtful, whether money was collected on the execution described, or another, the jury must decide upon which it was collected.</p>

<p>1. It is not essential that an election to ascertain the sense of the township, as to a sale of the I6th section, should be held upon the 16th section, — the com. missioners may consult the convenience of the people, by holding it at another place.</p> <p>2. Whore there has been an election in fact, to ascertain the sense of the qualified electors as to a sale of the 16th section, which is not contested within twenty days, and a sale of the land is actually made, all persons are concluded in a court of law, from contesting the validity of the election: — Whether in a case of fraud, on the part of the commissioners, a court of equity might not interfere at the instance of the township — Quere.</p> <p>3. It is not essential to the validity of a sale of a 16th section, that the judge of the eounty court should issue an order of sale. Nor that the commissioners should return the particulars of the sale to the county court.</p> <p>4. The, certificate of purchase which the commissioners were required to give the purchaser, setting forth the particulars of the sale, was intended exclusively for bis benefit, and if defective, will not vacate the sale, — nor will an omission to acknowledge it before a judicial officer, ora defective acknowledgment, affect the rights of the township.</p>

Wbit of error to the County Court of Benton. This was an action of assumpsit, at the suit of the defendant in error against the plaintiffs, on a promissory note. The writ is addressed “To any coroner, &c.,” without alleging the incompetency of the sheriff to execute it, and was placed in the hands of the coroner, who returned thereon that he had duly executed the same. No appearance was entered for the defendants, and a judgment by default was rendered against them.

Writ of error to the Circuit Court of Morgan county. Motion for judgment by the Bank, against Ford, Wise and Sherrod, as the several endorsers of a bill of exchange described in the notice. When the cause was at trial, the Bank, for the purpose of ■showing the jurisdiction, of the court, proposed that the president thereof should make the usual certificate, that the bill of exchange sued on, was a debt, really and bona fide, the property of the said Bank.

<p>X. The act of the Legislature, incorporating the Planters’ and Merchants’ Bank,, is a public statute, and will be noticed judicially by the courts,- though no# specially pleadedv</p> <p>2. The act of 13th February, 1843, for the settlement of the affairs of the Planters’ and Merchants’ Bank continues the charter of the Bank in existence, for the purpose of maintaining suits whether commenced before or after the char, ter was declared forfeited.</p> <p>3. To authorise the rendition of judgment by motion in favor of the Planters’ and Merchants’ Bank of Mobile, it is not sufficient to produce to the court the certificate of one assuming to be the President of the Bank, or a commissioner under the act of 1843, that the debt is the property of the bank, but the official character of the persons so assuming to act, must be proved, and the genuine, ness of their signature. It must appear from the record that such proof was made to the court, although an issue in fact be tried and found for the plaintiff.</p> <p>4. It is not necessary to prove that the certificate was made at the. time it bears date ; proof of the genuineness of the signature will be prima facie evidence of the contents of the certificate.</p>

<p>Writ of error to the County Court of Montgomery.</p> <p>On the first of February, 1843, oath was duly made, that the plaintiffs in error had recovered a judgment in the orphans’ court of Montgomery, against Anderson Thomas, for the sum of twenty-eight hundred and seventy-one 60-100 dollars, besides costs; that the defendant in the judgment had no property in his possession to satisfy the same; and that affiant had just reason to believe that the defendant in error is indebted to him, &c. A garnishment was immediately issued in pursuance of the affidavit, and served on the garnishee, as shown by the following endorsement, viz:</p> <p>“Service accepted, this 1st February, 1843.</p> <p>Jos. D. HOPPER</p> <p>The garnishee appeared and answered to the garnishment; and at the term of the county court next succeeding his appearance, moved “ to quash and set aside the service of the garnishment in this cause, because he says the same was accepted, and not executed by the sheriff.” This motion was granted, and a judgment entered accordingly.</p> <p>cited Clay’s Dig. 259; 3 Stewt. Rep. 192; id. 480; 1 Stewt. & P. Rep. 298; 6 Porter’s Rep. 385.</p> <p>relied on Rapelye & Co. v. Ware, [1 Stewt. Rep. 33.]</p>

<p>Wb.it of error to the Court of Chancery of thj the Southern Division.</p> <p>The bill is by Arnold against Sheppard, who isj resident of Texas. The service was perfected in a newspaper, and by notice upon the courthous§ manner required by statute.</p> <p>The bill asserts, that Sheppard has commenced a suit against Arnold in the circuit court of Lowndes county, upon a note which was previously fully paid and satisfied.</p> <p>The payment is alleged to have been made to the defendant at a time and place stated in the bill, and received by him under a promise that the note should be destroyed.</p> <p>The prayer is for a perpetual injunction of the suit at law, and that the note may be delivered up to be cancelled, as well as for general relief.</p> <p>No appearance was entered for the defendant, and on proof of publication, a decree pro confesso was allowed by the register at rules. Evidence on the part of the complainant was taken in the cause, but nothing is established by it.</p> <p>The complainant moved the chancellor to continue the cause, and hold up the injunction until the defendant should file an answer; but the chancellor had doubts of the correctness of that course, and finally dismissed the bill with costs; considering it as one for discovery in aid of the defence at law, and not for relief.</p> <p>The dismissing of the bill is now assigned as error.</p> <p>insisted—</p> <p>1. That he was entitled to a decree for a perpetual injunction upon the default of the defendant to answer. [Miller v. McCan, 7 Paige, 451; Eden 253; Harrison Prac. 551; Nicholas v. Jones, 3 A. K. Marshall, 387; Williams v. Corwin, Hopk. 477; Douglass v. Evans, 1 Term. 83;Pegg v. Davis, 2 Blackf. 281;Baltzell v. Hall, 1 Litt. 98; Robinson v. Townsend, 3 Gill. & J. 413; Peto v. Attor. Gen. 1 Young & J. 509; Landon v. Ready, 1 Sim. & Slu. 44; Turpin v. Jefferson, 4 H. & M. 483; Dunlap v. Mcllvay, 8 Litt. 269; 2 Bibb, 445; 3 Bibb, 303.]</p> <p>2. The injunction should, at all events, have been continued until an answer was put in, as the complainant is entitled to a discovery, however he may be as to the relief. [Story’s Eq. 419.]</p> <p>3. But if the injunction cannot be continued, then the complainant is entitled to a deci’ee authorizing him to read the pro confesso on the trial at law. [Sprigg v. Jarrett, 1 A. K. Marshall, 336; 2 Story Eq. 69L]</p> <p>4. The defendant cannot, on error, complain of the want of jurisdiction not urged in the court below, or to the regularity of proceedings there. [Farley v. Farley, 1 McCord Ch. 513; McDonald v. Crocket, 2 ib. 135; Bayle v. Fitzhugh, 2 Wash. 213; Barnes v. Lee, 1 Bibb, 527; 2 Sumner, 546.]</p> <p>insisted, that it was a mistake to consider this as a bill for discovery merely. It stands on the same footing as any other bill for relief, and must be proved upon a decree pro confesso. [Clay’s Digest 351, § 39 — 354, § 58.] The bill, not being framed as one for discovery, it was proper to dismiss it, as the relief could not be granted even if the facts were proved.</p>

<p>ERROR to the Chancery Court of Franklin.</p> <p>The bill was filed by the plaintiffs in error, and alleges that William H. Whitaker purchased apart of a 16th section from the school commissioners, took from them a title, and gave them a deed of trust for the purchase money, which was secured by four notes, on which B. M. Bradford, G. W. Foster and Jos. Trotter, were sureties. That Whitaker afterwards sold the land to one Radford McCargo, who agreed with Whitaker to pay the debt due the school commissioners. That afterwards, McCargo sold the land to the defendant in error, who bound himself by a stipulation in writing, to extinguish the debt aforesaid. That the stipulation was handed to Whitaker, who, on his leaving the county, left it with a person who died, and that DeGraffenreid afterwards possessed himself of it, and refuses to deliver it up, and that in consequence thereof, they are unable to state whether the obligation entered into by DeGrafibnreid, was in favor of Whitaker or McCargo. That DeGraffenreid wholly failed to discharge the notes due the 16th section, in consequence of which the land was sold under the trust deed, but that a considerable part remains unpaid. That Whitaker is insolvent, and his sureties will have to pay the debt.</p> <p>The bill prays a discovery from DeGraffenreid of the suppressed obligation, and for general relief, &c.</p> <p>To this bill the defendant demurred, and the chancellor sustained the demurrer, and dismissed the bill, from which decree this writ is prosecuted.</p> <p>cited 7 Paige, 257; 2 Yerger, 346; 1 Story’s Equity, 479; Story’s Eq. PI. 64, 74, 103, 104, 105; 1 Strange, 95; 1 J. C. R. 566; 2 id. 296.</p>

Whit of error to the Circuit Court of Mobile. This was an action of ejectment at the suit of the defendants in error, in which the plaintiffs made themselves parties, and entered into the usual consent rule.

<p>1. Where a further day of payment is given, by deed, to the principal debtor, he being the maker of several promissory notes, and the drawer of several bills of exchange, but a reservation is made in the deed that nothing contained in it shall bar or affect the right of the creditor to sue on any of the notes or bills at the request of any of the sureties; such a contract does not discharge the indorsers.</p> <p>2. Where theprineipal debtor, by deed, assigns property to a trustee for the payment of bills and notes upon which others are subsequent in liability, contracting thereby for delay, with a reservation by the creditor of the right to sue at the request of any surety, (in which event the deed was not to operate as a security for the debt thus sued,) and containing a condition that the debtor might sell the property, or remain in possession of it until the expiration of the time contracted for, is no discharge of the parties subsequent in liability, oven if it is conceded that the deed, by reason of these stipulations, would be void as to a creditor.</p>

<p>Ekror to the Circuit Court of Vfilcox.</p> <p>This was an action by the defendant in error, upon the official bond of Hill, the sheriff, and his sureties.</p> <p>The declaration sets out the bond and its condition, and assigns seven breaches.</p> <p>1. That Hill (the sheriff) after the execution of his bond, and during the continuance of, and whilst in the discharge of the duties of his office, did as such sheriff, collect the sum of #1,605 51, upon an execution which issued from the clerk’s office of Wilcox circuit court, on the 25th Nov. 1889, and returnable to the next spring term of said court, in favor of one Robert L. Jamison, for the sum of $1,438 08 damages, and $143 80 damages adjudged by the supreme court for delay, and $23 62 1-2 costs against Harris S. Evans, Thomas E. Ellis, John A. Evans and Abel E. Evans. But the said Hill, sheriff, as aforesaid, though often requested so to do, has not paid, &c. &c.</p> <p>The second, third, fourth and fifth assignments of breaches, were abandoned at the trial.</p> <p>The Gth is in the usual form, for a failure to return the execution.</p> <p>The 7th breach, after alledging the receipt of the execution by the. sheriff as in the first breach, proceeds, that the said Hill, as such sheriff, did collect the moneys therein mentioned, and ought to have paid the same over on demand, to the said Robert L. Jamison. But the said Hill, although often requested so to do, wholly neglected and refused to pay over on demand, to said Jamison, the said last mentioned sum of money, or any part thereof, and still neglects and refuses so to do, to wit, &c.</p> <p>By reason whereof, &c. &c.</p> <p>The defendants demurred to all the assignments of breaches except the sixth, to which they pleaded payment. The court overruled the demurrer, but permitted the plaintiff to strike out the second, third, fourth and fifth assignments of breaches.</p> <p>From a bill of exceptions taken at the trial, it appears that the defendant objected to the reading by the plaintiff of the bond declared on, because another bond was subsequently made by Hill, approved and filed, and proposed to prove that the default of the sheriff, if any, was after the execution of the last bond, but the court overruled the objection, and permitted the bond to be read.</p> <p>The defendant also objected to the evidence of the judgment, because it was not proved that it was the same upon which the execution mentioned in the declaration was issued, but the court permitted it to be read.</p> <p>The defendant also objected to the evidence of one C. C. Sellers, who proved that the execution, after diligent search, could not be found in the clerk’s office, because he was not the keeper of the office; but the evidence was admitted to show its absense and secondary evidence offered of its contents.</p> <p>The plaintiff also offered to read from the execution docket, the description of the execution, its reception by the sheriff’s deputy, return, &e. which was objected to by the defendant, because, on the docket it appeared to be an alias pluries, and the declaration described it as an original,but the objection was overruled, and the evidence allowed.</p> <p>The defendant further objected, that the entry of ten per cent, as damages, adjudged by the supreme court on the execution docket, was not sufficient proof of the affirmance of the judgment by the supreme court, with damages, but the objection was overruled, and the entry read.</p> <p>It was proved that Jamison, the plaintiff, had obtained a judgment against Thomas Evans as accommodation acceptor, on the same bill on which the judgment on which the execution in the present case issued — that on execution against Thomas Evans, plaintiff, had been satisfied of his claim — that the interest in the judgment against H. S. Evans, had been transferred by Jamison to Josiah Evans, administrator of Thomas Evans, but it was not shown that it was in writing — that the agent of Josiah Evans, whose authority was not shown to be in writing, demanded the money of one Daniell, the deputy of Hill, and gave in evidence to the jury, the reply of Daniell to the demand. This testimony was objected to, but permitted to goto the jury.</p> <p>It was also in evidence, that Hill, the sheriff left the State— that during his absence, his office was declared vacant; that after Hill left the State, Daniell still continued to act as his deputy— that after the office was declared vacant, Daniell still continued to act as deputy — that during this period, Daniell made the money on this execution, by a sale of property, and paid a part over to Josiah Evans. The demand above spoken of, was also made during Hill’s absence.</p> <p>Under this proof, the defendant’s counsel moved the court to charge the jury, that if plaintiff had received his money of Tho’s Evans previous to the demand in this case, he could not recover. That a demand must be proved to have been made of Hill or his sureties, and that a demand of Daniell, the deputy, was not sufficient. That unless a transfer, in writing, of the judgment from Jamison to Josiah Evans, and an authority in writing, by him, to the person making the demand, was proved, the plaintiff could not recover. The court refused to give these charges, and then charged the jury, that if Jamison had obtained judgment and execution against two different parties to the same bill, and collected the amount from one, he might permit the money to be collected on the other execution for the benefit of the party entitled to it. That if Daniell was the authorized deputy of Hill, and continued to act as such in his absence, by making the money in this case, and retained the money, and continued to act for Hill,.then a demand of Daniell was sufficient; although, during Hill’s absence, and after his office had been declared vacant. That it was not necessary that the transfer of the judgment from Jamison, or the authority from Josiah Evans to make demand, should be in writing.</p> <p>To the charges given and refused, and to the other matters contained in the bill of exceptions, the defendant excepted.</p> <p>Assignments of error.</p> <p>1. The court erred in overruling the demurrer.</p> <p>2. In permitting the plaintiff to strike out some of the breaches assigned after demurrer overruled.</p> <p>3. The court erred as set forth in the bill of exceptions.</p> <p>4. In proceeding to trial without replying to the pleas.</p>

<p>1. In less than two months after the grant of administration, the administrator was served with a scire facias to revive a Suit at law pending against the intestate at the time of his death ; he retained counsel to appear for him, and claim a continuance. The counsel appeared on the first day of the term, and objected to a judgment against his client: on some subsequent day of the term, without the knowledge or consent of the administrator or his counsel, a judgment Was rendered against the former, though thccase was not reached in a regular call of the docket; and neither of them had notice of the judgment until after the adjournment of the court. The administrator reported the estate insolvent, according to the statute in such case; his report has been confirmed, and the appro, priate orders made for its settlement. If the judgment remains in force, the administrator will bo personally charged with its payment, although he has not wasted the estate of his intestate: Held, that it was competent for a court of equity to give relief, by injoining the judgment against the administrator.</p>

<p>1. An indictment for perjury, alleging that, in a trial of a suit between T. and M. before a justice of the peace, it became a material question, “whether M. on the -day of-, 1840, was ready to deliver on demand, certain plank to P. according to the contract between them;” on which trial M. swore “that he had tho plank always ready for P;” moaning thereby that ho had the plank ready to bo delivered to P., according to the contract, on tho- day of-, 1840, when, in truth and in fact, M. did not, on the-day of-, 1840, have tho plank ready to bo delivered to P. in accordance with the contrast between them, is ba.d.</p> <p>2. When the contract is to deliver plank on demand, it is necessary to make a demand, to put tho party in default; and in a suit for tho non-delivery, tho material question would be whether a demand was made; it is difficult to conceive of peijury, in its legal acceptation, committed on such a trial, unless the swearing is, that no such demand was made, when, in fact, tliejtruth was otherwise.</p> <p>3. In a trial for perjury alleged to have been committed in giving evidence in a cause before a justice of tho peace, growing out of a written contract, it is necessary that the record or papers of tho suit and tho contract, should be produced or accounted for; tho first is ncccssary„to show tho identity of tho proceedings with those described in the indictment; and the other, to ascertain the legal effect of the contract, and consequently what questions of evidence were material or otherwise in that suit.</p>

<p>EttiioR to the Circuit Court of Tuskaloosa.</p> <p>This action was brought by the defendants against the plaintiffs in error upon a penal bond. The declaration is as follows:</p> <p>The Mayor and Aldermen of the city of Tuskaloosa complain of Aaron Beady and Willis Banks, executors, &c., of a plea of debt, that they render to the plaintiffs the sum of eight thousand dollars, &c. For that whereas the said Edward Sims, in his life time, to wit: on the 20th May, 1833, at, &c., together with one John J. Webster, not sued in this action, by his certain writing obligatory, sealed, &c., acknowledged himself to be held and firmly bound to the plaintiff, by the name and style of the Mayor and Aldermen of the town of Tuskaloosa, and their successors in office, in the said sum of eight thousand dollars, to be paid to the said plaintiffs and their successors in office. And the said plaintiffs, according, &c., say that the said writing obligatory was made with a condition thereunder written, that whereas the said John J. Webster had undertaken, by contract, to do certain work upon a certain ditch known as being near Colgin’s smith shop, according to the specifications, as were stated upon a half sheet thereunto attached, for the sum of four thousand dollars, one-fourth part to be paid whilst the work was progressing, or when the work was completed, and the balance at three equal annual instalments from the time the work was done, as specified. He, the said John J. Webster, warranting the same to stand for the term of ten years, in good order, from the time the same was completed, then if the said John J. Webster did so according to all matters and things as stated in said specifications alluded to, and faithfully did and performed said undertaking or contract in the best workmanlike manner and shortest practicable time, then said bond to be void, otherwise to remain in full force and virtue.</p> <p>And said plaintiff further says, that in the said specification in the condition of the said writing obligatory mentioned, which the said plaintiff now brings into court, it was specified that the work on the big wash or ditch near Colgin’s shop, should consist of a wall of good large rock or good well-burnt brick, fixed on a good firm foundation, and laid in good lime and sand cement or mortar, the wall to be run at the lower or north side of broad street, extending from the extreme break near Colgin’s smith shop to the extreme break towards Dr. Tindall’s. The wall to be at least one foot higher than the graduation of the street the whole extent on each side the wash. Broad street to be graduated east from the wash as far up as to the cross street between Dr. Tindall’s and E. Smith’s, and the slope to be regular and gradual; and west of said wash as far as the cross street near Col. Donaldson’s, with the same gradual slope. The side walks ai’e to be preserved, and where the streets are cut down at the sides, to have them sloped, and not abrupt; and to graduate College street from Broad street to Cotton street, with a gradual slope. In the graduation of Broad street at the wash, to have the fall, from the mouth of the ditch, where the plank conductor is in it, to the north side of Broad street where the wall is constructed, about one foot. To make a good pavepient, well put down of rock, entirely across Broad street, where the water passes from the ditch, at least twenty feet wide the whole width of the street. To make arrangements to prevent the water falling abruptly over said wall so as to produce a wash below the wall, and to pass the water off freely down the wash. The work to be commenced immediately, and to be performed in as short a time as practicable, and to be warranted for ten years from the time the work is completed, and to be kept in good order during that time, and the whole of the wash to be left in a good condition at the end of ten years.. For which the said plaintiff was to give four thousand dollars, payable, &c.; and although the said plaintiff has well and truly performed, &c. &c. Yet protesting, &c. the said plaintiff in fact says that, although it was always ready and willing, and did pay, &c., yet the said John J. Webster, or the said Edward Sims, in his life, or either of them, or any person in their behalf, did not nor would, after the making of the said condition and specification, do and perform the said work upon the said ditch according to the said specification and condition, and do and perform such undertaking and contract in the best workmanlike manner-, nor did nor would keep the whole of said work in good order and condition according to the fonn and effect of the said specification and condition in that behalf, but on the contrary thereof, &c., negativing all the undertakings in the condition and specification, and charging that in consequence the work became ruinous, &c.</p> <p>2d breach: That in consequence of the unfaithful and un-workmanlike manner in which the work was completed, it did not last for the space of ten years from the time when it was completed, whereby, &c.</p> <p>The defendants craved oyer of the bond, condition and specification. The latter are as follows ;</p> <p>“Whereas, the above bound John J. Webster, has undertaken by contract to do and perform certain work upon a certain ditch, known, &c., according to the specification, as is stated upon a half sheet of paper hereto attached, for the sum of four thousand dollars, one-fourth to be paid while the work is progressing, or when the work is completed, and the balance at three equal annual instalments from the time the work is done as specified. He warrants the same to stand for the term of ten years from the time the same is completed. Now, if the said John J. Webster shall do accordingly all matters and things as stated in said specification alluded to, and faithfully do and perform said undertaking or contract in the best workmanlike manner, and in the shortest practicable time, then this bond to be void, otherwise, &c. (Signed,) J. J. Webster, [Seal.]</p> <p>Edward Sims, [Seal.]</p> <p> Specification. </p> <p>A plan for the work on the big wash, adopted by the committee appointed by the Mayor and Aldermen of the town of Tus-kaloosa, to contract for filling and securing the same.-A wall of good large rock, or good well-burnt brick, fixed on a good firm foundation, and laid in good lime and sand cement or mortar; the wall to be run at the lower or north side of Broad street,, extending from the extreme break near Mr. Colgin’s smith shop-to the extreme break towards Dr. Tindall’s; the wall to be at. least one foot higher than the graduation of the street the whole-extent on each side the wash. Broad street to be graduated east from the wash as far up as the cross street between Dr. Tindall’s and E. Smith’s, and the slope to be regular, and graduated west of said wash as far as the cross street near Col. Donaldson’s with the same gradual slope, the side walks to be left; and where the streets are cut down at the sides, to have them sloped, and not abrupt; and to graduate College street from Broad street to Cotton street, with a gradual slope. In the graduation of Broad street at the wash, to have the fall, from the mouth of the ditch, where the plank conductor is in it, to the north side of Broad street, where the wall is constructed, about one foot. To make a good pavement, well put down, of rock, entirely across Broad street, where the water passes from the ditch, at least twenty feet wide the whole width of the street. To make arrangements to prevent the water falling abruptly over said wall, so as to produce a wash below the wall, and to pass the water freely off down the wash. The work to be commenced immediately, and to be performed in as short a time as practicable, and to be warranted for ten years from the time the work is completed, and to be kept in good order during that time. The whole of the work to be left in a good condition at the end of ten years; for which they will give four thousand dollars, one-fourth of the amount to be paid while the work is in progress, or when it is completed, and the balance in three equal annual instalments from the time the work is done as above specified. The undertaker giving bond with approved security for the faithful performance of the contract.”</p> <p>The defendants demurred to the declaration, which was by the court overruled.</p> <p>The defendants then pleaded five pleas.</p> <p>1. After oyer of the bond, condition and -specification, onerari non; because, they say, that the said John J. Webster, did .do all matters and things as stated in said specification; did attend to and faithfully do and perform said undertaking and contract in the best workmanlike manner and shortest practicable time; and this, &c.</p> <p>2. The second plea avers, that the said John J. Webster did, immediately after the contract made between him and the May- or, &c., commence the work in said specification mentioned, and did, in a good workmanlike manner, perform the same in as short a time as practicable; and this, &c.</p> <p>3. The third plea recites all the conditions mentioned in the specification, (except that the work was to last, and did last for ten years,) and avers performance according to the contract.</p> <p>4. Nul tiel corporation.</p> <p>5. Onerari non, because they say that said Webster did begin the said work in the said condition and specification mentioned, and did complete the same in the shortest practicable time, in a good workmanlike manner, and did keep the same in good order and repair according to the true intent, legal effect and meaning of the said condition and specifications; and of this, &c.</p> <p>The plaintiff demurred to the three first pleas, and took issue on the two last. The court sustained the demurrers, and decided the issue in law in favor of the plaintiff; and the jury having found a verdict for the plaintiff for two thousand dollars, judgment was rendered accordingly.</p> <p>Pending the trial, a bill of exceptions was sealed, from which it appears that testimony was offered tending to show that the work was not done in a workmanlike manner; that the work was completed in 1833, and was destroyed by a great flood in 1840. That the last instalment had not been paid to Webster.</p> <p>The defendants proved that the marshal of the town had pinned plank across the aqueduct to make a pass way for foot passengers, which, when it rained, had damned up the water, and prevented it from flowing through the aqueduct as it otherwise would have done; and that the witness being an alderman, he spoke of it to the Mayor and Aldermen, and told them that it would produce injury to the wall.</p> <p>Whereupon the court charged the jury — 1. That whatever Webster, as principal, undertook to do, Sims, as his surety, undertook that he would do. 2. That the delay of payment by the corporation did not excuse Webster for not doing the work, or keeping it in repair, according to the contract. 3. That the interference of the marshal of the corporation with the work, unless by the order of the corporation, did not impair their right to recover.</p> <p>The counsel for the defendant moved the court to charge that the jury might deduct the last instalment, if not paid, from any damages they might consider the corporation entitled to; which charge the court refused, upon the ground that Webster could maintain his action at law, and that this was not a case lor an offset. To all which the defendants excepted.</p> <p>Upon the issue on the plea of nul tiel corporation, the plaintiff offered no other testimony than the several acts of the Legislature incorporating the town and city of Tuskaloosa.</p> <p>The assignments of error are — 1 In overruling the demurrer to the declaration. 2. In sustaining the demurrer to the pleas. 3. In finding the issue in law for the plaintiff. 4. In the charges given and refused.</p> <p>The declaration is bad, because it does not aver that the plaintiff is a corporation, and the court cannot judicially take notice of it. [3 B. & P. 40; G Petersdorff’s Ab. 642; Chitty’s Precedents, 2, note E.; 1 Ch. Blackstone, top page, 86, note 21; the case of Madison College at this term.] 2. Because it does not sufficiently aver performance of conditions precedent. [1 Ch. PL 309, 16.]</p> <p>The assignment in the second breach is bad, because the warranty that the work should stand for ten years, was confined to Webster, the principal. For the same reason, the demurrers to the pleas should have been overruled.</p> <p>The court should have permitted the jury to consider the failure of the plaintiff to pay the last instalment in their estimate of the damage, not as a set-off, but by way of recoupement. [4 Won-dall, 22,51, 155; 3 Hill, N. Y. 171.] ”</p> <p>It is not necessary, in a suit by a corporation, to aver that it is a corporation: it is sufficient that it sues by its appropriate name. [14 Johns. 245; 9 Cowen, 778; Angel & Ames on Cor. 2 Ed. 501.]</p> <p>The three first pleas are bad, because they do not answer the whole declaration. [Gould..PI. 358, 365, 370,152; 1 Johns. 753; 2 ib. 413; 1 B. & P. 455; 3 Bibb, 330; 1 Littell, 5; 2 Mass. 97; 1 Greenleaf, 190.]</p> <p>The issue upon the plea of nul tiel corporation was sustained by the production of the charter, passed in 1836, creating « The Mayor ancl Aldermen of the city of Tuskaloosa” a body corporate by that name. The question which the defendants sought to make could only have been raised by a plea averring an ouster, dissolution, &c.</p> <p>That a declaration is good which avers a contract with a corporation by a different name. [See 10th Mass. 360; 13 Johns. 38; 1 Pen. 115; 5 II. & J. 122, 5 Hals. 323; G S. &R. 16; Angel & Ames on Cor. 503; 1 Ala. Rep. 243.]</p> <p>Independent of this view, the act of 1836, secures to the corporation all rights which previously belonged to the Mayor and Aldermen of the town of Tuskaloosa, and certainly settles this question.</p> <p>The specification is as much a part of the condition of the bond, as if it had been written out at length, and shows very clearly that security was required for all the stipulations entered into by the principal. [1 Hawks, 20; 7 J. J. Marshal, 192; 1 Munf.45; 2 Con. 78; 6 Johns. 49; 5 G. & J. 239.] And such a construction must be put upon it as will render the whole operative. [1 Har. 154,233; 1 Wend. 228'; 1 Johns. C. 319; 3 Fairf. 65.]</p> <p>The contract of the corporation was to pay in instalments when the work was completed according to the contract. Until such performance, there was no obligation on the corporation to pay; and, theiefore, there can be no right to dimmish the damage from the omission to pay. [3 H. & J. 163.]</p> <p>If the marshal of the corporation interfered with the work, to the injury of Webster, he is responsible to him. The corporation is not liable, unless it directed or authorized such interference.</p>

Wext of error to the County Court ofMobile. The defendant in error, as surviving partner of Charles Hammond, dec’d, declared against the plaintiff, in assumpsit, for money had and received, &c. The cause was tried on the genei’al issue, a verdict returned for the plaintiff for eleven hundred and one dollars and four cents, and a judgment was rendered accordingly. On the trial, the defendant excepted to the ruling of the court.

<p>1. A debt due from a bankrupt, and other persona as partners, may be set-off against a demand due to the bankrupt individually, although the suit is in the name of the bankrupt's assignee.</p>

<p>Í. A father, by deed, conveyed certain slaves to bis son, stipulating at the time, by parol, for the possession of the slaves during his life, and retained the possession about sixteen years, when the son obtained the possession of one of them without the father’s consent. The falher having brought an action to recover the slave — Held, 1st. That as between him and his son, no length of time would ripen his possession into a title, unless it was held by him adverse to the title of his son. 2d. That to show the character of the possession, it was competent for the son to prove the parol agreement relating to it.</p> <p>2. In trover, the measure of damages is the injury actually sustained ; therefore, in an action brought for the conversion of a slave, if the plaintiff has but a life estate in the slave, the measure of damages is not the value of the slave, but the value of the plninliff’s interest in the slave.</p>

Whit of error to the Circuit Court of Wilcox, In January, 1842, the defendant in error caused an attachment to be issued by a justice of the peace of Wilcox, for the sum of thirty-seven 90-100 dollars against the estate of the plaintiff’s, returnable to the circuit court. The declaration is for goods, wares and merchandize sold and delivered; work and labor done; money lent and advanced, &c.; money had and received; and an account stated.

<p>We.it of error to the Circuit Court of St. Clair eounty.</p> <p>Sci. fa. on a judgment nisi rendered on a forfeited recogni-sance. Walker entered into a recognizance with Wm. Hale, conditioned that the latter should appear at the then next term of the circuit court to be held for St. Clair county, on the 4th Monday of March. The legislature subsequently changed the time of holding that court, to the first Monday of March, on which day Hale was called on his recognizance, and failing to appeal’, it was forfeited, and judgment nisi rendered, which being made final, Walker prosecutes this writ, of error, and assigns as error, the judgment as erroneous, and not warranted by the recognizance.</p>

<p>1. Upon a verbal contract for the sale of land, the vendor cannot maintain an action at law for the purchase money, although the vendee has paid a part of the price, and retains the possession of the land.</p>

<p>1. Where an action of assumpsit is brought against the payee, as indorser of aproV missory note, payable at bank, and the defendant pleads the general issue, it is’ only necessary for the plaintiff to produce the note declared on with the payee’s’ indorsement, prove that it was duly presented at the place appointed for its pay. ment, show its non-payment, and that the defendants were seasonably advisdd thereof by notice given personally, or through the medium of the post-office.</p> <p>2. Where defendants, sued as executors, plead ne unques executors, it is enough' for the plaintiff to show on the trial of the issue, that they had received letters’ testamentary under a grant thereof by the county court, m order to throw upon the defendants the onus of sustaining their plea.-</p> <p>3. A promissory note, payable in bank, is, by the statute, governed by the rules of-the' faw m'eichant, as to" days of grace, cf-o.</p>

<p>1. In a claim to property levied on, where tho deed under which the claimant makes title, is set out in his plea, and the replication is, that if any such deed ex, ists, it is not valid in law; such a replication, in a claim cause, does not admit the execution of, or dispense with proof of tho deed.</p> <p>2. Where a deed conveys slaves to one, who by his own note has become liable for the benefit of the grantor in the deed, and the note is held past due by a bank, a stipulation, that the grantee may sell tho slaves, to answer any default by thp grantor, from time to time, to meet tho payments required by the bank, of thp grantee, is to be construed as an agreement that tho slaves shall repiain in thp possession of tho grantor until such default: and tho fact that they sq remain, is no badge of fraud.</p>

EkkoR to the Circuit Court of Butler county. Debt by defendant in error, against plaintiff in error, on' a promissory note for $580 39. At a subsequent term of the court, the defendant confessed: judgment for six hundred and thirty-nine dollars, for which snnm and costs, judgment was' rendered in' favor' of the plaintiff, and for the sum of one hundred dollars, the amount Remaining due and not confessed, the cause, on the application of the defendant, was continued.

Writ of error to the Court of Chancery for the county of Benton. In July, 1842, the plaintiffs in error, who are, Benjamin Matti-son, adm’r of Lemuel G. Darden, dec’d, Janies H. Harris, Richard Sawyer, Jesse G. Cobb and John Goodin, filed their bill against James L. Simmons, adm’r of Wm. Burns, dec’d, and Mary McGraw.

We.it of error to the Circuit Court of Montgomery county. Action of detinue, by the administratrix of Aminidab Marler, to recover certain slaves. At the trial, on the general issue, it was proved on the part of the plaintiff, that the slaves sued for were in her intestate’s possession at the time of his death, and had remained in his possession for more than six years next before his death.

This was a suggestion by the defendant in error, that the plaintiff in error, sheriff of Sumter county, could have made the money on an execution which issued in favor of the defendant in error by due diligence. From a bill of exceptions taken in the cause, it appears that the plaintiff in the suggestion had obtained a judgment against one Ryan, on which an execution issued, which was levied by the sheriff on certain property, and a forthcoming bond taken for its delivery.

Whit of error to the Circuit Court of Chambers. This was an action commenced by attachment on the 10th of August, 1842, returnable to the circuit court on the second Monday after the fourth Monday of September next succeeding its teste, at the suit of the defendant in error against the plaintiffs.

<p>1. An action of debt qui tarn, to recover the penalty for issuing a marriage license to a minor, without the consent of his parent or guardian, is abated by the death of the plaintiff, so that it cannot be revived by his personal representative.— Quere — Whether it might not have been continued by the State.</p>

<p>Error to the Chancery Court of Morgan county.</p> <p>The bill was filed by the plaintiffs in error, and' alleges that the-defendant Blevins being indebted to the Bank at Decatur, in the sum of $9,589 46, and being in failing circumstances, so that he could not pay the debt, or any material part thereof, without the' aid of his friends* on the 25th Sept. 1842, made a proposition in-writing, to the Bank, of which the following is a copy:</p> <p>“Huntsville, Sept. 25, 1842.</p> <p>“Geo. W. Rice, Esq,</p> <p>Dear Sir: Mr John Blevins, who is anxious to pay the' debt due the Decatur Bank, authorizes me to make to the board of directors the following proposition, viz: The Bank to t-ake his-tract of land, containing 2,465-acres, lying in this- county, at cash valuation* the same to be ascertained by three or five respectable' persons living in the neighborhood, who know the land, such men- as Stephen Debose, Wm; Wright, and others, as may be agreed on. Should the land be valued for more than he owes the •Bank, the overplus to be paid to him- in cash; possession given -first of January next. Title to be entirely satisfactory to the-Bank before any payment is made. The board to decide at their first meeting after the receipt of this, whether they will accept the proposition or not. If the Bank accepts the proposition, an agent to be sent up immediately, to attend to valuation, &c.</p> <p>That the Bank soon after, accepted the proposition, appointing G. W. Rice, its cashier, and L. G. Garrett, one of its directors, its agents, by an order of the board, as follows:</p> <p>“Branch of the Bank of the State of Alabama at Decatur, 10th Nov. 1842. Ordered that the cashier, in company with Lewis G. Garrett, repair to Huntsville, at the earliest day practicable, with the view of effecting a settlement of the debt due by John Blevins, in any way, so as to secure the amount, or any portion thereof, and for that purpose, they, or either of them, are vested with full power and authority to contract.” That after the adoption of said resolution, said president and directors instructed said agents to make the best arrangement they could, and if nothing better could be done, then to take said land upon the terms proposed.</p> <p>That said agents repaired to Huntsville, when, being unable to make any arrangement other than that proposed, agreed with said Blevins to take the land upon the terms offered, but as the legal title was then in said Horton, it became necessary that he should be a party to the agreement. Thereupon, complainants entered into a written agreement with the agents of the Bank, as follows:</p> <p>“Memorandum of an agreement, this day entered into by and between John Blevins and Rodah Iiorton, and the Branch of the Bank of the State of Alabama at Decatur- — -Witnesseth, that said Blevins is indebted to said Bank by note, -in the sum of <$9,589 46, due on the 31st January, 1842, besides interest and costs, and in the further sum of $746 86, besides interest and costs, for which last mentioned sum, said Bank has judgment and execution, and said Bank agrees to take from said Blevins in payment for said sums, a certain tract of land, lying in Madison county, supposed to contain about twenty-five hundred acres, (the true number to be ascertained hereafter) at the price to be set thereupon by the persons hereinafter selected and named.— But inasmuch as the legal title to said land is now in said Horton, and in consideration that said Horton shall make to said Bank a good and sufficient title to the same, said Bank agrees to pay to said Horton in notes of the Banks of the State of Alabama, the whole of the residue of the ascertained value of said land, left after paying said sums of money, with the interest and costs as aforesaid, and in consideration of the payment by the Bank of » such residue, left as aforesaid, said Horton on his part, agrees to make to said Bank, good and sufficient deed or deeds, for the whole of said tract of land. Now, to cany out and fully execute this agreement, said parties have mutually chosen and selected the following persons: Thomas Brandon, William Brandon, Benjamin Patterson, William Wright and Levi Hinds, who shall, on Monday, the 21st November inst. or as soon thereafter as may be, go upon said tract of land, and after a full and accurate examination of said land, fix upon the fair cash value, and reduce the same to writing, and give to each of the parties a copy thereof; and in case of disagreement, the opinion of a majority shall be the award of the whole, and binding upon the parties, and each party hereby binds himself faithfully, to execute on his part, this agreement. John Blevins,</p> <p>L. C. Garrett,</p> <p>Geo. W. Rice,</p> <p>Rodaii HoRTON.</p> <p>That a short time after the agreement was made, the persons so selected, did go upon said land and examine it, and four of the five estimated and fixed the value of the land at thirteen dollars per acre, reduced the assessment to writing, and gave to each of the parties a copy thereof. That after the valuation W'as thus made known to the cashier and Garrett, they as such agents, expressly recognized it as good, fair, and binding, and adopted it as their own act and valuation, and fixed a day certain, when said Horton should go to the Bank to execute the necessary deeds of conveyance, and receive from the Bank said residue.</p> <p>That by a survey, said tract was found to contain 2,466 37-100 acres, of which the Bank had notice — that on the day appointed by the agents, Horton went to the Bank and offered to execute the agreement on his part, but the Bank refused to perform on its part the agreement of its agents, but by its president and directors, adopted the following resolution, on the 30th Nov. 1842: Resolved, that in the opinion of this board, the debt of John Blevins, which was intended to be secured by the purchase of his land, will be wholly lost by the contract made by George W. Rice, and L. G. Garrett, and the subsequent valuation; therefore, said contract will not be recognized, sanctioned, or fulfilled by this board.”</p> <p>The complainant, Horton, avers his readiness and willingness, ■and his ability, to make a good title to the laud on the payment of ¡the residue, and both prays a specific performance of the contract, .and that the Bank be enjoined from collecting the money from Blevins. Appended to the bill, is a plat of the land and survey.</p> <p>The Bank, by its answer, admits that the proposition was made •as stated in the bill, but denies that it was accepted by the Bank, and sets out the resolution stated in the bill, for its action thereupon. It does not admit that any instructions were given to the agents, other than those to be found in their instructions. Admits the agreement was made by their agents, set forth in the bill, but does not admit the agents sanctioned and approved of the valuation made by the referees.</p> <p>Does not known whether complainants were able to comply, but admits its refusal, because, by performing it, not only would the debt intended to be saved, be lost, but according to the belief of respondent, complainants would receive in money, more than the actual value of the land; that the land was estimated at twice as much as it would command in the market for cash, &c.</p> <p>Many witnesses were examined to prove the value of the land, which will sufficiently appear from the statement of the facts by the court.</p> <p>The chancellor considering that the agents exceeded their powers, and that the proof established satisfactorily, that the land had been estimated by the valuers, at a price considerably beyond its true value, dismissed the bill. The complainants prosecute, this writ, and assign for error the decree of the chancellor.</p> <p>contended that this was a proper case for a specific performance — that excess of price over value, was no reason for not performing the contract specifically, unless the difference was so great as to shock the understanding, and to furnish evidence of fraud, or imposition.. [1 Story’s Equity, 249, § 244-5-6; 3 Cow. 445; 5 Porter, 264; 6 Wheaton, 528; 7 Vesey, 202; 1 Cox, 383, 428; 3 V. & B. 187; 9 Vesey, 246; 16 id. 512; 6 id. 272; 7 id. 30; 8 id. 133; 2 Madd. R. 409.] But the proof did not establish any such inequality, but on the contrary, showed that the price was fair.</p> <p>The award made by the referees, can only be impeached by proof of fraud or misconduct. [4 Porter, G5; 3 Johns. 367; 10 id. 143; 1 John. C. R. 101; 2 id. 276, 339, 358, 553; 5 Yesey, 846; 1 id. 369; 2 Johns. 62.]</p> <p>The Bank had power to make such a contract. [Angel & Ames on Cor. 64, 93; Clay’s Dig. 112, § 46; id 120, § 8,122, § 2.]</p> <p>The directors had the right to delegate their powers, and when properly exercised, was binding on the Bank. [Angel & Ames, 174-5-6, 237-8; 19 Johns. 60,284; 14 ib. 118; 10 id. 84; 12 id. 231; 7 Cranch, 300; 12 Wheaton, 72; 1 Hals. 115; 3 id. 191; 4 S. & R. 6; 3 Mass. 364; 10 id. 397; 2 Ala. Rep. 452,718.]</p> <p>The time of performance of contract, not material, unless some fact set out in the answer, such as change of value, or situation of the parties makes it so. [6 Wheaton, 528; 5 Cranch, 262; 3 Merivale, 81; 7 Vesey, 202, 264, 278; 13 id. 287; 2 S. & L. 682; 7 Paige, 77; 3 Bibb, 367; 6 Yesey, 646; 20 Law Lib. 106-8.]</p> <p>If the title was considered doubtful, it should have been referred to a master, and upon objections to his report, the court could have investigated the title. [6 Yesey, 646; 7 id. 202; 3 Cowen, 445; 3 Mun. 317; 8 Con. Eng. C. 2*10; 4 id. 230; 4 Johns. Ch. R. 659; 1 Hopkins, 436; 2 P. Will. 198; 20 Law Lib. 102-3-4, 222; 1Y.&B. 224, 351, 516; 10 Yesey, 315; 11 id. 39; 12 id. 17; 18 id. 482; 1 Wheaton, 179; 1 Merivale, 19, 104; 2 id. 138; 7 Paige 77; 2 Russell, 570.]</p> <p>contended that the directors of the bank were trustees for the public, and could not delegate their powers in such a case as the present. [26 Wendell, 485; 3 Louisiana, 568; 4 Mass. 595; 6 Paige, 497.]</p> <p>That in this case, the agents exceeded their powers, and their act was not binding on the Bank.</p> <p>Where a matter concerns the public, courts will not decree a specific performance, unless the bargain is beneficial to the trust fund. [2 Hov. on Frauds, 12, 40, 253-4; 1 Mad. C. R. 401; 17 Yes. 290; 18 id. 315; 3 P. Will. 282.]</p> <p>A specific performance is in the sound discretion of the court, and will not be decreed unless the contract is just, fair and reasonable, which is not the case here. [6 John. C. Ill: id. 222; 3 Cow. 445; 4 Porter. 374; 2 Ala. G3; 2 Wheaton, 290; 5 Peters, 284.]</p> <p>In such a case as the present, time is material, and if the vendor is unable to make title at the time stipulated, he cannot after-wards enforce the contract. [1 Caines, 47; 1 Dallas, 428; 5 Johns. 85; 11 ib. 527; 2 Brockenbrogb, 240; 1 John. C. R. 370; 4 Porter, 385.] The counsel then went into an elaborate examination of the title, tending to show that it was bad, and that the contract was too vague and indefinito in ,not describing the land to be specifically enforced.</p>

<p>1. The assets which come to the hands of an administrator, pass to his successor if he die, resigns, or is removed before he administers them.</p> <p>2. The declaration commenced thus : “ D. A. G., who sues for the use of S. S., sheriff of T. Co. and successor of said D. A. G., complains, &c.,” and then alleges that the defendantsmade and delivered their promissory note to the plaintiff, by which they “ promised to pay, six months after the date thereof, to the plaintiff, by the name of D. A G., sheriff and administrator of the estate of J’ C.” The breach alleged, is, the non-paymen-. of the note to the plaintiff, without negativing a payment to S : Held, 1. That it cannot be assumed as a legal conclusion, that G. was administrator in virtue of his office of sheriff, nor that S although his successor in the sheriffalty, was also administrator de bonis non, but the description of the latter as sheriff, if necessary, would be treated as a mere descriptio personal. 2. That if S. succeeded G. in the administration, and thereby became the proprietor of the note, the defendant should have pleaded the fact. 3. That the breach was well assigned.</p>

<p>Whit of error to the Circuit of Lowndes county.</p> <p>Assumpsit on the common counts.</p> <p>At the trial, on the general issue, and also on one formed on the replication of a promise within six years, it was proved that James Crenshaw, William Crenshaw, and Louisa Davenport, the feme plaintiff, formerly Louisa Crenshaw, together with some three others, were legatees of an estate in lands in Lowndes county; that James Crenshaw was the administrator of that estate; that the lands were sold by comm'ssioncrs appointed by the orphans’ court of Lowndes county; that the sale was made on the 1st of February, 1838, on a credit of twelve months, and the proceeds, being notes on various individuals to the amount of 15,-000 dollars, were delivered over to James Crenshaw', the ad-minisrrator, and by him were divided among the heirs within a few days after the sale.</p> <p>The plaintiffs, Davenport and Wife, requested the administrator to deliver their portion to William Crenshaw, the defendant; and their portion of the proceeds arising from the sale, was accordingly delivered by the adminstrator.</p> <p>The defendant then offered to read to the jury a deed purporting to have been executed by both the plaintiffs, bearing date the 30th April, 1836, expressing the receipt of a consideration of 2,000 dollars, and releasing all the right, title and interest of the said Louisa in and to the lands whereof Stephen Crenshaw died seized, lying in Lowndes county, to James and William Cren-shaw. This deed was proved by one of its sul scribing witnesses, who stated that it was signed, sealed, delivered and acknowledged, in his presence, by the grantors, as well, also, as in the presence of another subscribing witness; but he saw no consideration pass between the parties.</p> <p>The plaintiffs opposed the introduction of this deed as evidence, and on their motion, it was rejected. The defendant excepted; and the refusal to admit this deed,is here assigned as error.</p>

<p>li An admission by the defendant, upon the presentation 6f an accoüíit to him that part of the account is correct, but without stating what part, and neither admitting or denying the residue, cannot be construed into an admission that the entire account is just; and is of no value for the part admitted, from its uncertainty.</p>

This cause comes here by a writ of error issued by the clerk of this court in vacation, pursuant to the order of one of its judges.

Wkit of error to the County Court of Lowndes county. Assumpsit by Levi against Harbin on the common counts. In the commencement of the declaration, the plaintiff describes himself as adminiatrator of the goods and chattels which were of Richardson Blake, deceased. The defendant craved oyer of the plaintiff’s letters of administration, which was refused; and the court being applied to, refused either to non-suit the plaintiff, or compel him to give oyer.

<p>1. Where land is purchased by A. with the money of B., a trust results, by operation of law, in favor of B., although the title be taken by A. in hjs own name. But where a guardian was indebted to his ward, and purchased land which he declared was for the ward, paid for it with his own money, and put the ward in possession, but took the title in his own name — Held, that there was no resulting trust to the ward, and that in the absence of proof of an agreement that the land was to be received in payment of the debt, the ward had no title to it.</p>

<p>1. A trill of sale was made by C. (the defendant in execution,) to B., (one of the claimants,) to the negro woman in question, who was at that time concealed, with three other slaves of C . in a county remote from that where the transaction took place, (whither he had removed them,) and was shortly thereafter do-livercd to B. at tho place of her concealment. B. then returned in company with C’s agent, and another person, to the county in which himself and his yen - dor resided — tho other slaves, under the exclusive control of C’s agent, accompanying them. Tho woman purehasedby B. was levied on by Ji. fa. against C’s estate, and claimed by B. S. & Co. On the trial before tho jury, the plaintiff in execution askod a witness, what disposition was made of tho slaves that wore brought back and not levied on, and where they were when he last saw them; but upon the claimant’s objecting to the question, the court adjudged the same to bo inadmissible, and decided that it should not be answered : Held, that the question was prima fack irrelevant, and to have made a direct answer to it evidence, the p'laintiff should have statcd"tho object of the inquiry, and how he intended to affect therebyJhc claimant’s title to the slave in question.</p>

<p>Writ of error to the Circuit Court of Wilcox county.</p> <p>Action of trespass to try title and recover possession of certain lands. The parties’ plaintiff arc David Greenlee, James D. Davidson and Hannah, his wife, John P. Finley and Mary Jane, his wife, James L. Watson and Sarah, his wife, John F. Green-lee, Martha Greenlee, William Greenlee and Francis Greenlee. The cause was tried upon the general issue and other pleas, and a verdict returned for the plaintiffs, affirming that they were entitled to two undivided third parts of the lands specified, and ascertaining also the damages assessed for the detention of the same. On this verdict, judgment was rendered, and Bonner prosecutes the writ of error.</p> <p>The title of the plaintiffs, as it was shown in evidence, was this, Samuel Greenlee was the patentee of the lands, and died in 1823, without leaving any descendants, tie had two brothers and one sister, who survived him, and were his heirs at law. David Greenlee, one of the plaintiffs, is one of the brothers, and the other plaintiffs, except the husbands of such as are described as covert, were all children and heirs at law'of James Greenlee the other brother of Samuel. James died in the year 1840.</p> <p>The defendant made title under a deed from William Black, as administrator of Samuel Greenlee, and proved that he was appointed administrator, by the orphans court of Wilcox county, the 22d Dec. 1823. The defendant also shewed, by the records of that court, that Black filed a petition therein for the sale of the lands in dispute here, at the February term, 1825, in which he prayed for their sale, alleging that the personal property of his intestate, was not sufficient to pay the debts due. On this petition, a decree was rendered for the sale, afterwards Black made return of the sale of the lands made by him, upon which the following order was made: “Examined, approved and ordered to be recorded, and to be filed in office among the papers of the said estate.” This order is signed by the judge of the county court, and dated 12th February, 1828. No other order was shown, and no final decree was made by the judge of the county court, directing the administrator to convey the lands to the purchaser. Samuel Bonner purchased the lands, and a deed to him from Black, the administrator of Greenlee, was produced and proved.</p> <p>The defendant then proved, that Samuel Bonner went into possession of the lands, and held the same until his death. He left several children, some of whom are of age, but were not in possession of the lands. William Bonner, the defendant, is the executor of the-last will of Samuel Bonner, and holds possession of, and cultivates the lands under a clause of the will. In this way, he has had possession from 1st January, 1839.</p> <p>On this state of proof, the defendant moved the court to instruct the jury,</p> <p>1. That unless the plaintiff proved that the brothers and sisters of Samuel Greenlee were begotten in lawful wedlock, the plaintiffs were not entitled to recover.</p> <p>In answer to this request, the court instructed the jury, that the proof must show the plaintiffs were the lawful brothers and sisters, and their descendants, and the legal heirs of Samuel Greenlee.</p> <p>2. That the order of the judge of the county court made upon the return of the sale of the lands, was such a final decree as would divest the title out of the heirs of Samuel Greenlee.</p> <p>This was refused, and the jury instructed, that to divest such title, there must be a final decree or order, confirming the sale and directing the conveyance of the lands to the purchaser.</p> <p>In explanation of this charge, it is stated, that the petition showed it was filed under the act of 1822.</p> <p>3. It was shown in evidence, that there were other heirs at law of Samuel Greenlee, who were not joined in the action, and upon this the court was asked to charge, that the present plaintiffs could not recover. This was refused.</p> <p>4. That if the defendant held the possession only, as the representative of Samuel Bonner, then that the plaintiff ought not to recover. This was refused.</p> <p>The defendant excepted, and here assigns the same matters' as error.</p>

<p>1. A promise by an administratrix, to pay a debt due by her intestate, is not bind* infi on her individually, although it be in writing, there being no now consideration for the promise.</p>

<p>1. The judgment entry recites that the parties came “by their attornies, and the defendant suggests that the plaintiffs have resigned as administrators, of, &c., which fact being proved to the satisfaction of the court, and the defendant withdrawing his plea, says nothing in bar or preclusion of the plaintiff’s demand. It is therefore considered, &c.íIpm/, ebai it not be mü-.j-cd A0111 the defendant’s suggestion that the plaintiffs had resigned che adm’nistration ; the fact not being admitted by them, it should have been asserted by plea regularly interposed, and tried by the jury, and the court was not competent to determine it upon hearing the evidence.</p>

<p>1. A testator,by will, directs that certain persons shall have full power and control over the property described in the will, “ to be used and managed at their discretion, for the mutual use, benefit and interest, of his daughter,” (she then being a feme covert,) “ and her surviving children : and as they come of age or marry, the property to be equally divided between her and them.” This does not invest the wife with a separate estate ; nor is the interest liable to subjection, by a suit in equity, for the payment of a promissory note executed by her together with her husband. Nor can the husband’s interest in it be reached in a suit, where the allegations of the bill charge the estate to be one to the separate use of the wife.</p>

<p>Error to the County Court of Mobile.</p> <p>Scire facias from the county court of Mobile, by the plaintiff in error, against the defendant in error, to show cause why he should not have execution on a judgment rendered in Mobile county court, in favor of his intestate, and affirmed on writ of error to the supreme court.</p> <p>The defendants demurred to the scire facias, and the court sustained the demurrer and quashed the proceeding, which is now assigned for error.</p> <p>objected that the sci. fa. did not show with sufficient certainty, in which court the judgment of the defendant was obtained. That it did not appear by whom the sheriff was commanded to make known the contents of the sci. fa. [5 Bos. & Pul. Í04; Chitty’s PL 242.] It is not shown in which court the record remains, whether in the county or supreme court. Lastly, as the judgment of the county court was merged in the judgment of the supreme court, the sci. fa. should have issued from that court, and that it lias power to do so. [See 2 Stewart, 463.] He also cited Com. Dig. Pleader, 3 L. 3: 2 Tidd’s Prac. 1,007; 2 Sellon’s P. 198; Arch. Forms, 432; 9 Mass. 522.]</p>

Wbit of error to the Court of Chancery for the 33lh district Northern division. The case made by the bill is this: In 1826 or 7, Job Mason departed this life, having previously made his will, by which he appointed the complainant, King and the defendant Shackleford, his executors. The will was admitted to probate in the county court of Shelby county, and letters testamentary, granted to botli the executors, who gave the bond and took the oaths required by law.

<p>Whit of error to the Court of Chancery of Talladega.</p> <p>The case made by the bill is this.</p> <p>Lundie, the defendant, in February, 1837, sold several contiguous subdivisions of the same section of land, to one Milton, for the sum of 2500 dollars, and took two promissory notes from him, with one Richey as security: one, for 750 dollars; and the other, for 1750 dollars; both due on the 1st January, 1838. Lundie made no conveyance, but gave Milton a bond, condi-tioued to make him titles when the notes were paid, and when the patents should be received. Some time after the execution of the notes, Lundie sold the one for the smaller sum to Martin, the complainant, and endorsed it. After the note became due, M.lton and Richey both being insolvent, Martin took from Milton a portion of the land in payment of the note held by him, and cancelled it. Martin entered upon the possession of the land, with the full knowledge of Lundie, without any complaint or opposition on his part. The other note being unpaid, Lundie sued the makers at law, and pursued them to insolvency. He then filed a bill in chancery to subject all the lands sold by him to Milton for the payment of the larger note. Pending the suit in chancery, Martin filed a petition setting out his claim, and praying that he might be allowed to make himself a party and defend the suit. This was refused; and, subsequently, a decree was rendered subjecting all the land to the payment of that note. Under this decree, the whole was sold. Lundie became the purchaser, who is endeavoring to obtain possession by a suit against the tenant of Martin. The bill asserts, that by the assignment of the note, Lundie’s lien upon the land was transferred to the complainant, and that it is not divested by the circumstances; that the land purchased by Martin of Milton, is only a just proportion tb the whole debt. It, therefore, prays that the c»m-plainant’s title may be quieted, and Lundie compelled to release his title under the decree, and for general relief.</p> <p>The answer of the defendant was filed, which contains also a general demurrer to the bill lor the want of equity. The answer is not considered in the decree; and, therefore, need not be stated here, except for the purpose of correcting a mistake in the briefs. It shows that the 750 dollar note was secured by one Brown, (and not R ichey, as alleged by the bill,) who is asserted to have been perfectly solvent at the muturity of the note.</p> <p>The chancellor dismissed the bill as having no equity. This is now assigned as error.</p> <p>made the following points:</p> <p>1. Lundie retained a lien, for the purchase money, on the land sold. [Foster v. Athenaeum, 3 Ala. Rep. N. S. 302; Haley v. Bennet, 5 Porter, 452; Mackrath v. Symmons, 15 Yesey, 29; Brown v. Gilmore, 4 Wheat. 250; Bailey v. Greenleaf, 7 Wheat. 46.]</p> <p>2. This lien has the same character, to all intents, as a mortgage. [Haley v. Bennet, 5 Porter, 452.]</p> <p>3. By Lundie’s transfer of this lien, by the assignment of the note, Martin acquired the preference to be first paid. [Cullum v. Erwin, 4 Ala. Rep. 452; 9 Oowcn, 316; Kinney v. Collins, 4 Litt. 289; 4 ib. 317.]</p> <p>4. The debt being the principal, and the mortgage only the incident, the creditor has a right to pursue all his remedies until a satisfaction. [Duval’s heirs v. McLoskey, 1 Ala. Rep. N. S. 7 08; Story’s Equity, 1016.]</p> <p>5. The courts look at the intention of the parties; and if nothing is expressed, the lien is transferred with the debt. Hall’s adm’r v. Click, [June Term, 1843,] proceeds upon the principle that the intention there, was not to transfer the lien.</p> <p>6. As the assignment oí the debt transferred the lien, the as-signee had a right to purchase the equity of redemption. [2 Co wen, 286.]</p> <p>7. Under the general prayer, relief may be granted, such as the plaintiff is entitled to.</p> <p>submitted the following points:</p> <p>1. By Martin’s failure to sue the makers at the first term, he lost his recourse upon Lundie, for whose protection alone the lien exists. When his liability ceases, the lien is gone. [White v. Williams, 1 Paige, 502; Hall’s adm’r v. Click, June Term,’43; 7 Gill. & J. 120.]''</p> <p>2. When the note was taken up by the makers, it was functus officio, and no lien could afterwards be asserted by it. [3 Ala. Rep. 302, 352.]</p> <p>3. Lundie retained the legal title, and is entitled to enforce it, as the purchase money is unpaid. [5 S. & P. 216; 3 Ala. Rep. 302.]</p>

<p>EbROR to the County Court of Russell.</p> <p>This was a proceeding commenced before a justice of the peace on sixteen notes by the plaintiff, against the defendant in error, and judgment being obtained by him in all the cases, the latter removed the causes by certiorari. to the county court of Russell.</p> <p>In the county court, the plaintiff moved to dismiss the certiorari on the ground that the bond was insufficient, which the court refused — and on the defendant’s motion, the cases were consolidated, the plaintiff objecting thereto. The plaintiff then introduced the justice of the peace, and proved by him, that the notes which had been sued on, could not be found by him, after diligent search, and that he had inquired of his two predecessors, the first of whom had rendered the judgment on the notes, and neither of them were able to find them, but the court held this insufficient to authorise the introduction of secondary evidence to prove their contents. The plaintiff then offered to prove that the defendant had admitted that the notes were lost, as a ground for the admission of the secondary proof, but the court rejected it, considering it insufficient. The plaintiff then offered to prove that the defendant had admitted that he was indebted to the plaintiff in the sum of five hundred and fifteen dollars, which evidence the court rejected.</p> <p>To all v hich the plaintiff excepted, and now assigns for error,</p> <p>1. The court erred in refusing to dismiss for want of a sufficient bond, or in not requiring new bonds.</p> <p>2. In consolidating the cases against the consent of the plaintiff.</p> <p>3. In refusing to admit secondary evidence of the contents of the notes.</p> <p>4. In refusing to admit proof of defendant’s indebtedness.</p> <p>cited 1 Ala. Rep. 77; 2 ib. 58.</p>

Writ of error to the Circuit Court of Talladega. This was an action of assumpsit by the defendant in error, against the plaintiffs. The declaration contains eight counts, on the first six of which, issues of fact were joined, and to the seventh and eighth, the defendants demurred seriatim.

WRIT of error to the County Court of Dallas county. Assumpsit by Goodwin, as surviving partner of Wood, deceased, on the common counts, one of which is for money lent. The defendant pleaded, in short, by consent — 1. Non-assumpsit. 2. Payment. 3. Statute of limitations. This last plea was demurred to, but the demurrer was overruled.

The bill was filed by the defendants in error, to set aside a nuncupative, will. Held: that it was not necessary in a bill to set aside a will, for the complainant to allege any thing more than the title by which he has a right to investigate the probate, and a prayer for relief; but he insisted, that the point did not arise in that case, and was, therefore, but a dicliun, however well it appears to have been…

Whit of error to the Court of Chancery for Mobile. The defendant in error filed a bill against the plaintiff Walker, on the seventh March, 1840, setting forth that the defendant below, Geo. J. S. Walker, made his five promissory notes, bearing date the twenty-second day of May, 1835, payable to Henry Hitchcock, deceased, and negotiable at the Bank of Mobile. — .

<p>1. When suit is brought on a promissory nole, in the name of 1 ho payee, for the use of another, and is produced in evidence at the trial, it ought not to be excluded, although it appears, from an indorsement upon it, to have keen assigned to one not connected with the suit; the legal presumption in such a case is that the note has been relumed by the assignee to his assignor.</p>

<p>Error to the County Court of Mobile.</p>

<p>Writ of error to the Court of Chancery for R assell county.</p> <p>The complainants filed their original, and an amended and supplemental bill against the defendants, Jonathan A. and Cranberry Hudson, setting forth that Anderson Abercrombie, of the State of Georgia, did, on the-day of July, 1831, convey to Charles Abercrombie sundry slaves, (whose names are particularly mentioned.) “To have and to hold to him, upon trust and confidence, to receive and pay the rents and hire thereof to Martha E. Abercrombie, to her sole and separate use, independent of the control of her intended husband, and during the natural life of her, the said Martha E.” On the fifteenth of August, 1831, Martha E. Abercrombie intermarried with the defendant, Jonathan Hudson; and on the third of May, 1831, she made her last will and testament in writing, accord.ng to the laws of Georgia, where she then resided, by which she gave the slaves In question to her husband for lile, and alter that event, to be equally divided between the children of Sarah Ann Lewis, who are the complainants. The will further provided, that in no instance were the slaves to be subject to sale for tfie payment of the debts of Jonathon A. Hudson.</p> <p>It is furtner alleged, that the testatrix died on the 12th of Juno, 1834, without issue, leaving her will unrevoked and in full force; that the same had been proved, but the executor had since died, and no administrator had been appointed to succeed him in the execution of the will. The slaves are now in the possession of Jonathan A. Hudson, in the county of Russell, in virtue of the deed in trust for Mrs. Hudson, and her will subsequently made.</p> <p>The complainants allege, that Jonathan A. Hudson is greatly embarrassed, that suits for the recovery of four thousand dollars and upwards have been instituted against him in the circuit court of Russell; that they are informed that judgments, for a very large amount have been recovered against him in the circuit court ofMontgomery, as well as in Russell; that writs of capias ad satisfaciendum have been sued out in Georgia against him, for a sum exceeding two thousand dollars; further, that he has made an assignment of much valuable property.</p> <p>It is further stated, that the complainants are informed that Jonathan A. Hudson is preparing speedily to remove the slaves in controversy; further, they apprehend that executions will be levied on them, and they will thereby pass into the hands of strangers, and be carried beyond the jurisdiction of the State, so that the complainants will entirely lose their rights, or be compelled to prosecute suits abroad for their recovery.</p> <p>In the amended and supplemental bill, it is stated Jonathan Hudson is entirely insolvent; has been arrested in Georgia, on several writs of ca. sa., and has entered into bond, for his appearance to take the benefit of the act for the relief of insolvent debtors; that according to the laws of that State, he will be compelled to deliver up the slaves in question in order to obtain his discharge. It is further stated, that Granberry Hudson has interposed a claim to these slaves, and that it is now in a course of litigation in the circuit court of Russell, between him and some of the judgment creditors of his co-defend ants, who have caused their executions to be levied on them.</p> <p>The bills pray that process may issue, áre., requiring the seizure of each of the slaves, &c., and detain them in custody until the defendants, their agent, &c., shall give bond with surety; conditioned to have them forthcoming to abide the decree of the court in the premises. An order was made in conformity to the prayer of the bill, the slaves seized and bond given; but, after-wards, on motion of the defendants, the bond was discharged, and the bill dismissed for want of equity, at the costs of the next friend of the complainants.</p> <p>made the following points:</p> <p>1. A court of equity has jurisdiction in order to protect the rights of persons entitled to personal property on the death of an intermediate holder. This jurisdiction results from the necessity of the case, and because a court of law is incompetent to act efficiently,. [4 Dess. Rep. 29.]</p> <p>2. The ancient doctr.ne was, that one entitled to a remainder in persona! estate, might compel him, in whom the present interest was vested, to give security that the goods be forthcoming at the determination of his right. [4 Dess. Rep. 29; 1 Brown’s Ch. Rep. 274; 1 P. Wms. 1.] But by the more modern rule, the law has been relaxed in favor of the person having the first estate. [1 Brown’s Ch. Rep. 279; 3 P. Wms. Rep. 336; 2 Paige’s Rep. 132.]</p> <p>3. Where there is reasonable ground for apprehension on the part of the remainder-man, the court will order the tenant for life to give security for the property. [2 Story’s Eq. 141; 4 Dess. Rep. 26; 2 McC. Chan. Rep. 36; 2 Paige’s Rep. 132; 1 Iredell’s Eq. Rep. 134; 6 Yes. Rep. 172; Meek’s Sup. 68, § 15.] Again: the complainants are infants, and entitled to the special protection of acourt of chancery.</p>

<p>1. It is irregular to join two distinct matters oCabatement in the same plea, and such a plea is bad on demurrer.</p> <p>2. In an attachment by one non-resident against another, the affidavit should show that llie defendant lias not sufficient property within the State of his residence to answer the debt, within the belief, as well as within the knowledge of the person making the affidavit; and such a defect is sufficient to abate the attachment, when pleaded.</p>

<p>1. Upon the hirer of a slave refusing to provide necessary medical attendance for the slave, and insisting on his laboring when physically unable to do so, the owner may take possession of the slave for the purpose of having medical aid afforded him; and upon the refusal of I he hirer again to receive the slave when restored to health, so as to bo able to work, the entire amount of the hire is recoverable.</p>

<p>Writ of error to the Circuit Court of Mobile.</p> <p>This was a summary proceeding by notice, under the statute, at the suit of the defendant in error, aga.nst the plaint.ffs as obli-gors, in a bond of indemnity. It is shown by the record, that the plaintiffs in error caused three several or.gmal attachments to be issued against the estate of George Harrington, all of which they placed in the hands of the defendant, as the sheriff of Mobile, to be executed. As an inducement to levy the same, the plamt.ffs executed a bond to the defendant, conditioned to save him harmless against any action or actions, that might be brought for levying the attachments on the goods and effects in the store, then lately occupied by Harrington. The levy was made, but the goods attached were sold under attachments previously levied, and no part of the proceeds had been, or would be, appropriated to the payment of the debt claimed by the pia.nt.ffs. A recovery had been had against the sheriff for the conversion of the goods, by persons wholly disconnected With any of the suits, on the ground that they were their property.</p> <p>The record is voluminous, and presents other questions, but enongh has been recited to make the opinion of the court intelligible. A judgment was rendered in favor of the sheriff, for the value of thé goods seized by him, together with costs, &.c.</p>

<p>Writ of error to the Circuit Court of Randolph county.</p> <p>This case was commenced in a justice’s court, in the name of Frazier, for the use of McBarnett, against Breed. The defendant had judgment in that court, and recovered 2 dollars and 68 3-4 cents for his costs. McBarnett appealed to the circuit court, and executed a bond, in the penalty of 5 25-100 dollars, with the condition prescr.bed by statute, with Kerr as his surety. In this bond, the suit is descr.bed as one by McBarnett v. Breed, and Frazier’s name is entirely omitted. In the circuit court, the judgment was also for the defendant, and is entered, that he recover of the plaintff, and Kerr, as his surety on the appeal bond, his costs of suit.</p> <p>McBarnett and Kerr now prosecute the writ of error, and assign—</p> <p>1. That the court erred in rendering judgment against Kerr on the state of fads d.sclosed by the record.</p> <p>2. In rendering any judgment against Kerr on the record.</p> <p>insisted—</p> <p>1. That the bond was not a statutory bond, in consequence of the omission’of Frazier’s name as plaintiff in the suit; therefore, no judgment can be given on the bond. [Quinn v. Adair, 4 Ala. Rep. N. S. 315.]</p> <p>2. The judgment against the surety, under no circumstances, could properly have been for more than the penalty of the bond; and the court knows, judicially, that the costs of such a suit must exceed the penalty inserted in this.</p>

<p>Error to the Chancery Court of Lawrence county.</p> <p>The bill was filed by the plaintiff in error, and alleges in substance, that one Henderson, sber.ff, and in virtue of his office, administrator of Peter W. Taylor, recovered a judgment in the circuit court of Lawrence, against one Thomas Coopwood, upon which, he prosecuted a writ of error to the supreme court, complainant becoming his surety in the writ of error bond. That the judgment was affirmed in the supreme court against Coopwood and himself. That afterwards Coopwood filed a bill in chancery, and enjoined the collection of all the debt except $ 1,400, the complainant being no party to the injunction bond. That this bill was dismissed and execution again issued against Coopwood, himself and the parties to the injunction bond, and insists that the execution of the injunction bond discharged him, he being a mere surety to the writ of error bond. The defendant in error is the successor of He nderson.</p> <p>H.s honor the chancellor, dismissed the bill, considering that if the complainant was entitled to the relief he sought, it could be obtained by motion to quash the execution in the couit out of ■which it issued.</p> <p>From this decree this writ is prosecuted.</p> <p>cited 4 S. & P. 269.</p>

Appeal, from the Circuit Court of Mobile. This was an action of ejectment for the reeovery of a lot, with its appurtenances, situate in the city of Mobile. The cause was tried, under the usual consent rule, on the plea of “Not guilty”; a statement of facts was agreed to by the parties, and the court substituted instead of the jury. A judgment was rendered in favor of the defendant for costs.

Writ of error to the Circuit Court of Montgomery county. The indictment is against a slave for an assault with intent to kill and murder Mary Beasley, a white person.

<p>Error to the Circuit Court of Sumter.</p> <p>This was a proceeding for a forcible detainer, commenced by the plaintiff against the defendants in error.</p> <p>In his complaint, he alleges, “that he was possessed of a certain messuage, with the appurtenances and lands, situate lying and being in and a part of the township 14, range 1 west, and section 9, S. W. qr. of SO, lying in the county aforesaid, having had lawful and peaceable possession of the said messuage and lands for the space of five years; and being so possessed,” &c.</p> <p>A jury was empannclled by the justice of the peace, whom, he recites, “were duly sworn well and truly to inquire of said forcible and unlawful detainer”; who, upon their oaths, said they found a verdict for the plaintiff. Upon this verdict, the justice rendered judgment for the plaintiff for costs.</p> <p>The cause was removed into the circuit court, by certiorari, by the defendants, who there assigned for error—</p> <p>1. The lands or premises sued for are not distinctly described in the complaint, or in any part of the proceedings.</p> <p>2. That the complainant did not allege any estate in the premises.</p> <p>3. The jury were not sworn according to law.</p> <p>4. That the jury did not render a verdict according to law.</p> <p>The circuit court sustained the errors assigned, reversed the judgment of the justice of the peace, and dismissed the complaint. To reverse this 'judgment, this writ is now prosecuted by the plaintiff, who here assigns for error—</p> <p>1. The court erred in reversing the judgment on the errors assigned.</p> <p>2. In not remanding the cause.</p>

<p>Wkit of error to the County Court of Mobile.</p> <p>This was a proceeding by libel, under the statute, at the suit of the defendant in error against the steamboat W. W. Fry, hcij tackle, apparel, &c. It is alleged, that since the first day of July, 1842, the libellant hired to that boat, while she was on the internal waters of this State, and for her use and on her credit, four spars, to be used in raising her from the bottom of the river, where she had sunk, at the rate of twenty-four dollars per week; that these spars were kept in the use and service of the boat for the space of six months and twelve days, and were not delivered to the libellant, although he has often demanded them; that they are valued at eighty-five dollars; and that an account of the particulars of the libellant’s demand is annexed, the aggregate amount of which is seven hundred and nine dollars, &c.</p> <p>Process was regularly issued against the W. W. Fry, under which the boat, with her tackle, apparel, &c„, were seized by the sheriff of Mobile; whereupon, the plaintiffs in error entered into a stipulation, conditioned to deliver the W. W. Fry to the sheriff of Mobile, on, &c,, or to pay and satisfy the decree that should be rendered on the libel. The claimants denied on oath the allegations of the libel; the cause was submitted to a jury on the proofs of the respective parties, and a verdict being returned for the li-bellant for the sum of one hundred and seventy-nine dollars, a judgment was rendered accordingly. On the trial, the claimants excepted to the ruling of the judge. The libellant proved, that the steamboat Fry, on her passage from Montgomery to Mobile, sunk in the Alabama river; that Pope, the owner, through King, his agent, applied to the libellant for four spars to aid in raising her; that King and Murray made the following agreement, viz: that King should have the spars for the purpose for which he wanted them, but the time when he was to return them was not distinctly stated, though he said he should need them from a week to twelve days. For the use of the spars, the owner of the boat was to pay a dollar per day for each spar, and if they were lost or injured, Pope was to pay twenty-five dollars for three, and ten dollars for one — in all eighty-five dollars. It did not appear that the spars were injured or lost, but they had never been returned to the libellant. The only evidence on this point, wag that of King, who testified that Pope said, on leaving the boat, let them remain there, as he should want them again in attempting to raise her. The court charged the jury, that it was a material inquiry whether there was a sale or hiring of the spars; if there was no sale of them, the plaintiff should recover the value, together with hire, according to the contract. -</p>

<p>Writ of error to the Court of Chancery, for the 9th District of the Southern Division.</p> <p>The statement of the case as made by the bill, sufficiently appears in the report of the same case at January term, 1843. The answer of the defendant, Colclough, having been filed, a motion was made to dissolve the injunction on the ground that all the equity of the bill was denied. The part of the answer,' which covers the allegation of the bill, that the bond was never received and approved by the proper officer, is in these terms, “defendant is informed and believes, that the judge of the county court received the said bond and ordered it to be filed in the office as the official bond of the said McRae; and he submits that this in law and in equity, is an approval.” He also asserts, that the complainants had notice of the motion against the sheriff, and submits that the judgment obtained upon it, is an estoppel now to contest its validity. It is admitted that the judgment was never affirmed, and that Dansby and Campbell, the sureties to the last writ of error, were ignorant that a previous writ of error had been sued out.</p> <p>The chancellor allowed the motion, and the complainants appealed from his order dissolving the injunction.</p>

<p>1. Upon a noto made payable to tlie “ Treasurer of the Manual Labor Institute of South Alabama,” a suit cannot be maintained by Madison College, without an averment that it is the same corporation, and that the name liad boon changed since the making of the note, and before tho institution of the suit.</p> <p>3. In such a case, on making tho proper proof, a recovery can bo had on tho money count.</p>

WRIT of error to the Circuit Court of Russell. The defendant in error declared against the plaintiffs, in as-sumpsit, upon a promissory note, which is described as being dated the fifteenth day of December, 1840, payable twelve months after date, for the payment of two thousand three hundred and twenty-seven dollars and twenty-two cents, for the account of section 16, township 16, range 29, Russell county, negotiable and payable at the Branch of the Bank of the State of…

moved for a mandamus to the judge of the county court of Tuskaloosa county, requiring him to issue a supersedeas in a certain case, where execution cither had or was about to issue against the Bank on a judgment for costs in favor of M. E. Chiles, et al. In the petition, it is shown, this judgment was rendered at a term of the county court commenced on the 2d Monday of December, 1843.

Ervjtou tó'the Circuit Court of Sumter. Detinue by the defendant in error, against the plaintiff in error, for a slave. From a bill of exceptions, taken at the trial, it appears that the defendant produced, and proved, a bill of sale, for the slave, from his father to him.

Whit of error to the Circuit Court of Dallas. This was an action of assumpsit at the suit of the defendants ill error, against the plaintiffs, for the recovery of the sum of three hundred and eighty-seven dollars and ninety-three cents.

Trespass, vi et armis, by the plaintiff against the defendant in error, as sheriff of Talladega. The defendant pleaded the general issue, and a special plea setting up a justification, that the property was seized by virtue of legal process. Issue on the demurrer to the second, which was overruled by the court.

Writ of error to the County Court of Sumter. This was an action of assumpsit atvthe suit of the defendants in error, against the plaintiff.

<p>1. A mandamus will not lie to compel a judge of the county court to accept a bond tenderedby tho sheriff; he having adjudged it insufficient, and for that cause, having declared the office vacant.</p>

Whit of error to the county court of Montgomery. This cause was originally eight suits, commenced before a justice of the peace of Montgomery,] on eight promissory notes, made by the defendant’s intestate, and payable to the plaintiff-rail of which, it is declared by the plaintiff’s affidavit, were lost or mislaid.

<p>X. A notice against a defaulting sheriff or constable, is sufficient, if it specifies the term at which the motion is made.</p> <p>2. When sureties unite with their principal in a plea to the merits, it is an admission of the fact of suretyship.</p> <p>3. A finding by the jury for the plaintiff, on an issue to the merits, includes all the facts necessary to the ascertainment of the defendant’s liability, unless a-statute requires the facts to be specially found.</p>

<p>Writ of error to the Court of Chancery, sitting for Greene county.</p> <p>The intestate of the defendant in error exhibited his bill against the plaintiffs on the 8th January, 1839, in which it is alleged, that Messrs. Lea & Langdon, two of the defendants, were commission merchants for the complainant from August, 1835, to the spring of 1838 — bought his supplies in Mobile, advanced money for him, and sold his cotton there. On the 10th November, 1836, L. & L. presented their account to the complainant, which amounted, after an allowance of all credits, to the sum of three thousand two hundred and sixty-eight 79-100 dollars; confiding in their integrity, he gave his note for that sum, at sixty days after date, negotiable at the Branch of the Bank of the State of Alabama at Mobile. Upon a more particular examination of the account, the complainant has discovered several errors, viz: a charge of $124 77-100 for bacon purchased for him on the 20th June, 1836, with interest and commissions thereon. This item, L. & L. have since admitted to be incorrect. There is a further mistake of three or four dollars, for compound interest charged.</p> <p>The complainant states, that he sent to Messrs. Lea & Lang-don his crop of cotton for 1836, making thirty-nine bales, averaging four hundred and fifty pounds each, although they have only furnished him an account of sales for twenty-four bales. The nett proceeds of twenty, sold in Mobile, amonntedto $1238 67-100; and the proceeds of four sold in Liverpool, were $261 46-100. L. & L. admitted they had sold five bales of Cotton in Liverpool, but no account has been rendered, excepted as above stated; if the other fifteen sold as well as those accounted for, then L. & L. have been fully paid off. The note, given on the 10th November, 1836, has been taken up by the complainant, and he has it in his possession ready to produce to the court.</p> <p>On the 28th October, 1837, Martin A. Lea, of the firm of Lea & Langdon, called on the complainant for a settlement. He presented no regular account, but memoranda, made on detached pieces of paper; said that his firm had paid a note for $1920, which the complainant gave to David Harding, as also other liabilities, and thereupon demanded security for their re-payment. Confiding in the integrity of Lea, and that all errors would be corrected, the complainant gave his note $3298 97-100, dated the 28th of October, 1837, payable on the first of January thereafter; with interest from the date. At the same time, he executed a deed of trust with the view of securing the payment of the note, by -which he conveyed to Wm. Chambers six negroes, (whose names are particularly stated.) These negroes were to remain in the possession of the complainant until a sale was necessary, unless he should attempt to remove them without the county of Marengo. The trustee was invested with power to sell on the request of L. & L. upon advertising time and place, &c.</p> <p>In February, 1838, Messrs. Lea & Langdon handed to the complainant a very imperfect account of his dealings with them, which is unsatisfactory and erroneous; occasionally charging the complainant with a sum of money, -which is unexplained by any specification — embracing a period from the 20th April, 1837, to 13th Februury, 1838. L. & L. have not furnished an account current for the time intervening the 10th November, 1836, and the 20th of April, 1837, although the thirty-nine bales of cotton were shipped to them during that period.</p> <p>It is further stated, that the consideration of the last note, which complainant gave to Lea & Langdon, is wholly unfounded, and was obtained by fraud; that they claimed of him the following sums for cash paid for his account and benefit, viz: $570 60-100, amount of draft paid J. G. Harvey; $737, amount of draft paid Webb & Dugger; $1920, amount of a note given by the complainant to David Harding. Whereas, it is charged that these drafts and notes have never been paid by L. & L., but are demanded of the complainant, and suits have been brought against him for their recovery; and on the two former, judgments have been recovered. These several items amount to a sum sufficient to extinguish the note of the complainant. Besides, the complainant sent L. & L. his crop of cotton in 1837, making 17 bales, which, by account of sales rendered the 24th January, 1838, yielded the nett sum of seven hundred and twenty-one 75-100 dollars.</p> <p>The complainant alleges, that the trustee in the deed, on the 31st December, 1838, against his consent, and in despite of his remonstrances, removed the slaves, therein mentioned, from his possession, and imprisoned them in the jail of Perry county — saying he was instructed to do thus, &c.</p> <p>The bill prays, that a subpoena may issue to Lea & Lang-don and Chambers; that an account may be taken between the two former and the complainant, and if nothing be found due Lea & Langdon, then the collection of the note, either by suit or sale under the deed of trust, be injoined; or if part only be due, then the residue of the note be injoined. And if the note and deed of trust made to secure its payment, be found to have been obtained by fraud, then the same may be delivered up to be can-celled, &c. In the meantime, that the trustee be injoined from selling the slaves until the further order of the court; and that such other relief as may be proper, be granted, &c.</p> <p>An injunction was awarded to restrain the trustee from selling, &c., and requiring the complainant to give bond with surety, conditioned for the forthcoming of the property; which latter requisition was complied with, and the injunction issued.</p> <p>The defendants, Lea & Langdon, filed a joint answer, in which they admit that the complainant and. themselves made a settlement of their accounts on the 10th November, 1836, and that he gave them his note, as stated in the bill; they also admit the mistake of $124 77 for bacon, including commissions and interest; but this mistake, they affirm, was corrected with the assent of the complainant. They admit that complainant has possession of his note, that itwas givenuptohim, and the amount earned toanew account; which new account they undertake to exhibit with their answer,</p> <p>In the winter of 1836-’7, these defendants state, that they received of the complainant forty-one bales of cotton, four of which were sold in Liverpool for the sum stated by the complainant; an account of sales of the residue, and an appropriation of the proceeds, appear by the account above mentioned. All the cotton ever sent to the defendants are but seventy-three bales, the sales of which are shown by the accounts exhibited with their answer, which they aver is correct.</p> <p>These defendants also admit, that the complainant gave them anote on the 28 th October, 1837, as stated in his bill, but they deny that the payment'of the note, made by the complainant and Walke, formed any part of its consideration. They never said that they had, or would pay this latter note. They admit the execution of the deed of trust, as alleged, and exhibit an account of the transactions between the complainant and themselves «from beginning to end.” Admit that they have not paid drafts to Harvey, and Webb & Dugger, though they have charged commissions for accepting them. Taking the original in connection with the amended answer on this point, and there is a positive denial of the fact, that the complainant was charged with the amount of these drafts, or any part of either of them, as cash paid for his use by these defendants. They admit the receipt and account of sales for complainant’s crop of cotton grown in 1837, and aver that he was duly credited for the amount, as shown by the account exhibited.</p> <p>They deny all fraud in obtaining the note and deed of trust; and aver that they were voluntarily given by the complainant. Admit removal of the slaves by the trustee to have been forcibly, yet they insist peaceably, made for the purpose of sale under the deed of trust. They believe that the slaves are not worth more than the amount of the- debt they Were intended to secure.</p> <p>The defendant Chambers denies all fraud, or intention to oppress the complainant, affirms that he actedunder instructions from his co-defendant Lea; that in removing and imprisoning the slaves his only object was to have them forthcoming on the day of sale.</p> <p>Several witnesses were examined at the instance of the complainant. Billups Gayle, cashier of the Branch Bank at Mobile, testifies, that on the 19th of February, 1838, complainant’s note for $2733 17-100 was discounted by that Bank, and the proceeds, $2707 21-100, went to the credit of Lea & Langdon. This note matured the 13 | 16th of April, and was paid, but by whom the books of the Bank do not show. On the 16th of April, 1838, complainant’s note $2707 was discounted, and the proceeds, $2676 15-100, went to the credit of Lea & Langdon. This note matured on the 15 | 18 June, was paid, but by whom does not appear. On the third of May, 1838, the note of the complainant, with Wm. M. Burrell and John Burke as joint makers, Was discounted for $1000, and the proceeds $954 33-100, went to the credit of Lea & Langdon. The proceeds of the notes were checked out at various times — the last note matured on the 3 | 6 of February, 1839, and was protested for non-payment; but was paid on the 20th of October, 1840, with one hundred dollars in cash, and a joint note of James Burke and Solomon Rhodes, payable on the fourth of April, 1841; which last note was unpaid in January, 1842, when the witness’s deposition was taken. This witness testifies alone from what he finds on the books of the Bank — the entries in which were made before he came into office.</p> <p>John M. Walke, also a witness for the complainant, testifies, that Lea, of the firm of Lea & Langdon, told him that the firm had paid a note in which the complainant was the principal, and the witness a surety, for ‡ 1920, payable to David Harding; that they had paid it as commission merchants for the complainant, and charged him with it in his account current; and that the complainant, in 1838, executed a deed of trust on four or five negroes, to secure its payment. Complainant showed witness an account current of Lea & Langdon against him; in that, the note alluded to, was not charged.</p> <p>David Harding, another witness for the complainant, proves,that he had the note of the complainant, in which J. M. Walke was a surety, for f 1920; this note he indorsed to John Bloodgood, who sued him as indorsee. Langdon, of the firm of Lea & Langdon, told witness' and Bloodgood, that Roane had deposited with the firm a sum sufficient to payoff the note with interest. No execution has ever issued against witness in the suit of Bloodgood, nor has he had any farther trouble about the matter. Langdon stated that he had paid over the money to Wm. Gordon, the counsel for Bloodgood in the suit against the witness.</p> <p>Witness was present when a conversation took place between the camplainant and Lea, of the firm of Lea & Langdon, at Woodville, in respect to a settlement; Lea had no account with him, but referred to several sums of money which his house had advanced for the complainant, viz: the amount of the note made payable to this witness above referred to, and a draft to Harvey, and another to Webb & Dugger. Lea insisted they had paid them, and urged the complainant to settle by note; but the latter objected unless an account was rendered, and asked the advice of the witness, who told him that he should insist upon an account and the production of the liabilities that they wight be cancelled. Lea seemed well satisfied, said complainant would do what was right, and invited him to take something to drink. Late in the evening, complainant and Lea called on witness in a state of intoxication; the latter remarked, that the former had settled with him, and had given his note for $3000 or upwards, and executed a deed of trust for its security on six negro men, to Wm. Chambers as trustee. The complainant then called on witness to take notice, that if, upon the exhibition of L. & L.’s account, he should owe them nothing, then the deed of trust should be void in toto, or if his indebtedness should be less than the note, then the deed should be void so far as it was not sustained by a consideration. To all this, Lea assented. Complainant, at the same time, insisted, that the note made by Walke and himself was paid with money which he had furnished Lea & Langdon for that purpose. Lea said, if, upon examination, such should appear to be fact, the deed should be void to the amount of the 'note. Witness thinks deed of trust was made in the fall or spring of 1838; he was not present when it was executed, but saw complainant very soon after, and thought him too drunk to attend to business of so much importance.</p> <p>When the settlement was first attempted, Lea said he had no . account current with him, but insisted that his firm had advanced money for the complainant to different persons; which the latter denied, and called upon Lea to say to whom they had paid money for him. Lea mentioned the note of complainant and Walke, above referred to: this, the complainant insisted, had been paid with money placed by him in L. & L.’s hands; he then mentioned the drafts in favor of Harvey, and Webb & Dugger; these, the complainant contended, were paid with the proceeds of cotton which he had shipped them.</p> <p>The chancellor was of opinion, that the note, made by the complainant in October, 1828, as well as the deed of trust, executed with the view of securing its payment, was obtained by fraud and misrepresentation; that they were consequently void, and could not be enforced for the purpose of collecting any balance that might be due to Messrs. Lea & Langdon. It was accordingly ordered and adjudged, that the same be delivered up to the complainant for cancellation; and that Lea & Langdon pay the costs of the suit.</p> <p>insisted—</p> <p>T. That the account of the transactions between the complainant and Lea & Langdon, exhibited with the answer of the latter, was to be considered as responsive to the allegation of the bill, which declared that no account current had ever been produced, and prayed that it might be furnished. [Paulling v. Sturgus, 3 Stewart’s Rep. 95; McGowen v. Young, 2 Stewt. & P. Rep. 160.] This account shows an indebtedness for only $668 — less than the amount of the note in question; and this, although the complainant is not charged for advances on account of the note to Harding or the drafts to Harvey, and Webb & Dugger.</p> <p>2, Even admitting that Lea may have made a misrepresenta* tion to the complainant at the time the note was given, yet if any thing is due Lea & Langdon, the deed must stand as a security pro tanto. [2 Story’s Eq. 7-8; 11 Wheat. Rep. 103; 12 East’s Rep. 637-8; 1 Story’s Eq. 213, 498; 3 Ala. Rep. 448.] If Lea & Langdon were seeking to set up the deed in equity, that court might perhaps refuse its aid.</p> <p>3. The complainant was a cotton planter, and had no other means of payment than his cotton crops — the account show’s how the proceeds of every sale were disposed of. An account is only asked for from 10th November, ’36, to 13th Februaiy, 1838; consequently, the answer of Lea & Langdon does not show what disposition was made of the money received from the Bank on the note of the complainant of the third of May, 1838. As to the money received from the Bank on complainant’s notes, by Lea & Langdon, it must have been paid by them, as the former had no other means of payment than his cotton, which is all accounted for.</p> <p>4. Harding’s testimony alone, or in connection with the other witness, does not outweigh the answer.</p> <p>contended, that the only question which need be decided, was, whether the complainant was induced by fraud ox misrepresentation to give the note of October, 1837, and the deed for its security. The proof, on this point, was ample and explicit to sustain the allegations of the bill. It is shown that the note was given in consequence of Lea’s representation, that he had paid for the complainant the note given by him to Harding, and the drafts to Harvey, and Webb & Dug-ger. In fact, the answer of L. & L. does not negative the allegation, that the payment of these drafts formed part of the consideration for the note in question.</p> <p>A suggestio falsi by Lea, is shown by the testimony of Walke and Harding; besides this, the manner in which the settlement was made, the discrepancy between the answer and the exhibit, ar’e circumstances entitled to great weight. The answer of L. & L. affirms that the note is due in tolo, while the exhibit shows that it was made for $668 53-100 too much; in addition, the proceeds of the note of $1000, received from the Bank, is not accounted for.</p> <p>A suggestio falsi, or suppi-essio veri, whether proceeding from a premeditated purpose to deceive, or no, vitiates the most solemn acts; and where one suggests a falsehood, without knowing it to be true or false, he is as much chargeable with a fraud, as if he knew what he asserted was untrue. [1 Story’s Eq. 197, 201-2; 6 Yes. Rep. 173; 2 Wheat. Rep. 178; 2 Brown’s Ch. Rep. 385-8; 1 Ves. &■ B. Rep. 355; 3 id. Ill; 9 Ves. Rep. 21; 10 id. 475; 13 Peters’ Rep. 26.]</p>

<p>1. A purchase, by the plaintiff in execution, of the defendant’s land, which had been levied on and sold, is not a satisfaction of the execution, to the amount bid for it, unless he has accepted a deed from the sheriff, or there be a note or memorandum in writing, setting forth the terms of the contract of sale, so as to satisfy the statute of frauds.</p> <p>2. Quere — would not the court grant a perpetual stay of execution in a case where the plaintiff made a valid purchase of the defendant’s lair sale, which he refused to comply with,</p>

<p>Whit of error to the Circuit Court of Mobile.</p> <p>This was an action of assumpsit at the suit of the defendants in error against the plaintiff, on a promissory note made by him, together with Elihu Moffitt and James R. Horn, by which they promised to pay to the plaintiffs below, the sum of two thousand two hundred and twenty-five dollars, ten months after date, and dated the 23d March, 1839. The cause was tried on the general issue, and a verdict returned in favor of the plaintiffs, for the sum of one thousand and fiity-three dollars and thirty cents, on which judgment was rendered.</p> <p>On the trial the defendant excepted to the ruling of the court, both in charging and in refusing to charge the jury. The material facts of the case are stated in the bill of exceptions, substantially as follows: The plaintiffs were commission merchants of the city of Mobile; Moffitt, who was the principal in the note, was a cotton planter residing in the interior of this State, and in the habit of sending them his crop to sell. On the 23d of March, 1839, he obtained from them $2,000 in cash, for which he agreed to pay 5 per cent, the usual commissions for advancing, and in addition, interest at the rate of 8. per cent, per annum. To secure the payment of these several amounts, Moffitt made the note in suit, with the defendant and Horn as his sureties. It was the understanding between plaintiffs and Moffitt, that the latter was to ship cotton to the former, though nothing was said about selling it, and applying the proceeds to the note. In February and March, 1840, Moffitt sent to the plaintiff his cotton crop of 1839, amounting to 113 bales, all of which wore sold for the nett sum of nineteen hundred and nine dollars and sixty-three cents, and on the 17th of June, 1840, they sent him the account of sales, which does not show whether, and how they had appropriated the proceeds In answer to a previous application of Moffitt, not to sue for any balance he might be due the plaintiffs, they say, “we shall be easy about the balance you owe us until next season, when wo shall expect it.”</p> <p>Moffitt became indebted to the plaintiffs subsequent to March, 1839, as follows, viz: on the 3.0th April, 1839, for bagging, rope and twine, $260 81 — 29th of November, do. $80 16, for do. — - 30th December, do. $148 40, for do. On the 21st March, 1840, $306, for the hire of negroes, and em the same day, $124 50,. being the nett proceeds of four bales of Moffitt’s crop of cotton, which had been previously placed to his credit by the plaintiffs. — . The aggregate amount of these several sums, the plaintiffs claim the right to retain from the proceeds of Moffitfis cotton, before applying it to the extinguishment of the note in suit. It was proved that money due for negro hire, was not connected with the business of a commission merchant.</p> <p>The judge charged the jury, that the law relative to a pledge, and the liens which attach to property held in that way, were wholly inapplicable to this case: that the plaintiffs had the right to apply the money received for the cotton, to any item in their account, at any time, if Moffitt, their principal, had given no direction in respect to it. Further, the indulgence given by the-plaintiffs to Moffitt, would not discharge his security, unless it was upon a contract founded on a valuable consideration.</p> <p>The defendant, by his counsel, prayed the court to charge the jury, 1. If the plaintiffs received Moffitt’s cotton as commission merchants, and he was indebted to them at that time, in an account connected with and growing out of their trade as such, then they would be considered as holding the cotton in pledge for the satisfaction of their account. 2. If the indebtedness of Mof-fitt to the plaintiffs, consisted of several items, contracted at different times, but all connected with their trade and business, then the money received upon the sale of the cotton, after deducting-charges for commissions, &c, shall be applied to their payment according to the order of time in which they were respectively contracted; or if not thus to be extinguished, then according to the time in which the items respectively became due. 3. If the cash for which the note in suit was given, was advanced by the plaintiffs as the commission merchants of Moffitt, the note operated as a lien upon the cotton sold by them, notwithstanding the defendant and Horn were sureties for its payment, and if the oldest demand of the plaintiffs against Moffitt, it should be first paid from the money in their hands. 4. If the charge for negro hire was not connected with plaintiff’s trade as commission merchants, then the money received for the cotton could not be applied to its payment until the note was satisfied. 5. That the payment to Moffitt of $ 124 50, part of the proceeds of the cotton, with which the plaintiffs had previously credited him, discharged the defendant and his co-surety from the payment of the not epro tanto. 6. If the plaintiffs agreed to waite with Moffitt until next season for the balance of what he owed them, with the understanding that he was still to employ them as commission merchants, that would form such a contract for indulgence as would discharge the defendant. 7. If the money now sought to be recovered, was cash advanced by the plaintiffs as commission merchants, to Mof-fitt, who at that time owed them nothing, and Moffitt sent them his cotton to sell, the application of money received from the sale thereof, to debts subsequently contracted, would be a fraud upon the defendant as a suretyofMofiitt, and would operate as a discharge of the note pro tanto; which prayer for instruction was overruled in toto.</p> <p>The understanding between Messrs Pope & Son and Moffitt, that the latter should ship them his crop of cotton, amounted to a contract which gave a lien for the payment of the money, which the note was intended to secure. That no subsequent advances or dealings between the parties, could in any manner interfere with that lien, or relieve the plaintiffs from thus appropriating the proceeds of the cotton to the defendant’s prejudice. The note was prior in point of time, to the other items of the plaintiffs’ account, and should be first satisfied. [Paley on Agency, 116-7, 123; 1 Powell on Mort. 558; 1 Story’s Eq. 108, 320,322; 1 Bos. & P. Rep. 563-9; 1 Har. & J. Rep. 465, 754; 16 Peter’s Rep. 121; 2 Johns. Ch. Rep. 554; 17, Johns. Rep. 384; 11 Wheat. Rep. 59; 2 Johns. Ch. Rep. 603; 1 Powell on Mort. 434, n. 435, n. 558; 2 Har. & J. Rep. 492; 11 Mass. Rep. 300; 3T.Rep. 123.]</p> <p>To show that Pope had discharged tiie defendant by the indulgence to Moffitt; that they had no right to retain for the hire of negroes and the proceeds of the four bags of cotton paid Moffitt, the counsel cited Paley on Agency, 116-7, 122; 3 Bos. & P. Rep. 485; 1 Story’s Eq. 308; 3 B. & Crcsw. Rep. 605; 3 T. Rep, 123; Gid. 258.</p> <p>A factor has a lien for his general account; and it may be conceded that it is doubtful whether an outstanding independent claim will authorise him to retain the property of his principal, or its proceeds. [3 Bos. & P. Rep. 495.] That a factor may hold the possession of property upon which he has made advances, and control the proceeds after a sale to reimburse himself for a general balance growing out of the business, cannot bo denied. But he is not bound to exert it; whether he will do so or not, must depend upon his own volition; and no third person, although he may be a surety for the principal, can complain that its exercise has been omitted. [4 Johns. Rep. 112.] This lien is analagous to the right of set-off, and authorises the factor to hold the property or fund, as against an adverse claimant until his demand is satisfied; it is called into action, when a right is set up by a third person.</p> <p>Moffitt never directed Pope & Son to make any particular application of the monies arising from the sale of his cotton, and it was consequently competent for the latter to apply them to either of their demands. They might have paid them over to Moffitt, if so inclined; or even have set-off against an action brought bjr him the sum due for the hire of negroes. The case in 16 Peters’ Rep. 121, is clearly against the plaintiff — it shows that the commission merchant is bound to appropriate the proceeds of cotton to debts due at the time it is sold, and this, although the particular debt may not have been contracted in the course of his usual business. Unless it be by a distinct agreement, the surety can have no control over the manner in which the principal shall make his payments. [1 Stark. Rep. 101; 11 Serg’t & R. Rep. 34. See cases in 3 Peters’ Dig. 201; 10 Pick. Rep. 129; 2 id. 581, 612; 12 Wheat. 505, 554.]</p>

<p>1. Upon the forfeitnre of a mortgage, the mortgagee becomes not only entitled to the possession of the mortgaged premises, but also to the rent then, in arrear and unpaid, upon notice to the tenant in possession.</p>

Writ of error to the County Court of Lowndes. This was an action, at the suit of the defendants in error against the plaintiff. The first count of the declaration is on a promissory note made by the intestate, and another on the 17th August, 1837, for the payment of three hundred and thirty-three dollars to the plaintiffs. The second count is the same as the first, except that it alleges a promise by the defendant, since the death of his intestate, to pay the note.

The bill was filed by the plaintiff in error, and alleges, that he became the purchaser of a tract ofland in Franklin county, containing seven hundred acres, at a sale at public auction, in January, 1837, by the defendants in error, as executors of Arthur Jones, deceased, for which he agreed to pay twenty-one thousand seven hundred and . eighty dollars, in two instalments, for which he executed two notes, and received from the defendants in error, at the time, the following…

<p>1. No objection will be allowed in an appellate court to the complaint in a pro. ceeding for an unlawful detainer, which was not made before ‘the justice of the peace, if it is not so defective in substance that no judgment can be rendered for any particular premises.</p> <p>2. Where the notice to relinquish the possession previous to exhibiting the com. , plaint for .an unlawful detainer, was given by the attorney at la w of an mfant, in the absence of any thing appearing to the contrary, it will be intended on error, that he was employed by the guardian or next fríen J of the infant.</p> <p>3. As it is a matter within the discretion of the court trying a cause; to grant or refuse a new trial, the refusal to grant it, on the ground that the motion therefor, was not-made in due time, is not revisable on error.</p> <p>4. The act of 1840 “ To provide a more perfect remedy in cases of unlawful de-tainer in the city of Mobile,” provides, that if the judgment of the justice of the peace in such case be reversed, by the circuit court, there shall he a trial de novo by jury in that court. <£c.: Held, that on an appeal or writ of error to the supreme court, it will be allewable to assign errors in the record, arising previous ,to the judgment of reversal. .</p>

<p>Error to the Chancery Court at Talladega-.</p> <p>'The bill was filed by the ancestor of defendants in error for the specific performance of a verbal contract for the sale of land. The bill alleges the purchase of a tract of land from the deceased, which Is .particularly described, at the price of #650; of which sum, #481 was paid down, and a credit given on-the residue of one and two years. There was no written evidence of the contract. That he was let into immediate possession, and has held it ever since, having made valuable and lasting repairs to the property. That Cummings, the vendor, has departed this life, leaving a widow and six children, without having made title.</p> <p>The bill further charges, that one McGehee has obtained judgments against Cummings, and levied them upon the lands so purchased by him; and prays a specific performance of the contract; and that the heirs of Cummings be decreed to make him a title, &c.</p> <p>The defendant, McGehee, answers, and from information, denies the material allegations of the bill. The other answers need not be here stated.</p> <p>Many depositions were taken on both sides, which are rendered unnecessary to be here stated by the opinion of the court.</p> <p>Two of the depositions, those of T. Yeatman and M. Vice, were objected to at the hearing, because there was no notice on the files of the time and place of taking them; but they were admitted by the chancellor, because the commissioner certified that legal notice was given. He also admitted the deposition of the widow of the vendor, but did not consider it in his decision.</p> <p>After the evidence had been heard, the chancellor permitted the complainants to amend the bill where it stated the amount of the purchase money in dispute, so as to make it correspond with the amount proved by the witnesses.</p> <p>The chancellor, upon the proof, considered that the complainants were entitled to a specific performance, and decreed accordingly; and also decreed, that the balance of the purchase money, $216, be paid to the estate of Cummings.</p> <p>From this decree, the defendant, McGehee, appealed to this court; and now assigns for error—</p> <p>1. The court erred in not sustaining the demurrer to the bill.</p> <p>2 In not dismissing the bilk</p> <p>3. In admitting the depositions of Meredith Vice and Sarah Cummings.</p> <p>4. In permitting the plaintiffs to amend their bill after publication.</p> <p>5. In decreeing a specific performance.</p> <p>6. In the decree made.</p> <p>The court certainly erred in the admission of the depositions of Vice and Yeatman, as there was no proof of notice; and in permitting an amendment of a material allegation of the bill after publication of the depositions, and whilst the cause was being heard. [3 J. C. R. 423; 4 id. 170, 368; Milford’s R. 258.]</p> <p>The court also erred in decreeing the purchase money unpaid to the estate of Cummings, when it should should have been decreed to McGehee, as it was shown that the estate of Cummings was insolvent.</p> <p>Courts will not, at this day, allow new causes for taking contracts out of the statute of ffnuds, and will not overstep the adjudged cases. [1 Bibb, 204; 3 id. 2; 2 Stewart, 21; 15 Johns. 503.]</p> <p>It is not important to consider whether the testimony objected to was or was not properly admitted, because the testimony is ample without that evidence to establish the allegations of the bill.</p> <p>The amendment of the bill, which the court permitted, was merely formal; and such amendment the chancellor may, in his discretion, allow after publication. [Story’s Eq. PL 683; Clay’s Dig. 351, sec. 37; 2 Bibb, 169; 1 Brack. 119; 3 Mumf. 477; 5 id. 308; Litt. S. C. 201; 6 Wend. 638; 2 P. Wms. 424; 12 Yesey 48, 174.] The view here taken does not conflict with the case in 3 Ala. Rep. 160.</p> <p>Upon the merits of the case, he referred to 4 Bibb, 317; 4 Ala. 712; 1 J.C. R. 273, 149; 4 Porter, 297, 374; 14 Yesey, 386; 2 Strange, 783; 4 Blackfords, 383; 2 Story’s Eq. 62,75]</p>

<p>1. C. agreed to teach the school of the township, and the commissioners agreed to famish a comfortable house, &c., and remunerate him with the “ availa. ble funds” for one year; C also stipulating “ to pay five hundred dollars to support the female school, as an emolument for a tutoress.” The agreement was dated 28th December, 1838 ; but did not provide when the school should be opened or closed : Held, 1. That C’s contract required him to enter upon the performance of his engagement within a reasonable time after “ a comfortable house” was furnished ; or C. might provide a house for himself and relieve the commissioners from that duty. 2. That an allegation thatC had taught a school for the year 1839, as his contract required, and the “ available funds” for that year amounted, &e. was sufficient, without stating the precise day when he should have been paid. 3. That it was the duty of the com. missioncrs to employ the “ tutoress,” and C. need not allege that he had paid or tendered the sum agreed, to pay one. 4. That by the “ available funds for one year” were meant the profits derivable from the capita] during that time, whether received or not by the commissioners before the end of that period.</p> <p>2. Although the act of 1837 enacts that “ The trustees of each school district, and where the township supports but one school, the commissioners shall have power to employ a teacher, &.C.,” yet a person employed by the commission, ers need not allege or prove that there is but one school supported by the township; if the fact be otherwise, and it can avail the commissioners, thev must show it.</p>

<p>1. A direction by the plaintiff to the sheriff to stay proceedings upon an execution against the principal debtor, without consideration, does not release the surety from the payment of the debt.</p> <p>2, When a judgment is obtained upon an assigned note, the note has lost its negotiable quality, and cannot again be assigned, so as to enable the assignee to sue in his own name.</p>

Whit of error to the County Court of Morgan. This was a summary proceeding by notice and motion under the statute at the suit of the defendant in error against the plaintiff. A judgment by default was rendered in favor of the plaintiff.

<p>EuRoit to the Circuit Court of Mobile,</p> <p>This was a motion, by the county treasurer against the clerk of the county court, for moneys of the county alleged to be in his hands. The following facts were agreed</p> <p>It is admitted, that the defendant, as clerk of the county court of Mobile, after the passage of the general revenue law in February last, issued fifty-three licenses to persons, of the eo,unty of Mobile,, at thirty dollars each, which was done according- to. the [aw ex-, igting before the passage of that act, and under an assessment made in writing by the judge of the county court, and delivered to the clerk, under -the old law before the passage of the act of February last. After the promulgation of that act, the members, of the commissioners’ court of roads and revenue, at their regular-term, verbally instructed the clerk to, receive thirty per cent, upon the tax assessed in the revenue act for county purposes; but. no order or resolution in writing was made, and none exists on the minutes of that court. Under this verbal order, the clerk has issued seventeen licenses, receiving the thirty per cent, on the State tax on each license, and has the money.</p> <p>Upon these facts, the court rendered judgment against the clerk in favor of the county treasurer; from which this writ is prosecuted.</p>

Writ of error to the Court of Chancery sitting at Mobile. On the 27th of February, 1843, the defendant in error filed his bill, setting forth that on the eighteenth of August, 1836, Eleazer Hartwell and John Hartwell were indebted to Abner S. Lipscomb and George W. Owen, since deceased, in the sum of sixteen hundred and five dollars, by six promissory notes, (particularly described,) ■ for different sums, payable at different times at the Planters’ and Merchants’ Bank of…

<p>1. Evidence is admissible to show when in fact an execution issued, either by proving that the clerk made a mistake in the teste of the writ, or that it has subsequently been altered.</p> <p>2. A w’rit of fieri facias does not become a record of the court until it has been returned by the sheriff.</p>

<p>1. C. delivered certain slaves to S., his creditor, the latter stipulating that when .the wife ofC. would pay him the debt intended to-be secured by a pledge of the slaves, that he would settle them upon trustees to her separate use : the wife offered to pay the amount duo-to.S., and demanded the slaves in obedience to his agreement; which he refuses Held, that the contract of S. made him a trustee sub modo for the wife, and that the tender of -his demand entitled her to go into equity to enforce the execution of the trust. .</p> <p>2. Where one person receives a conveyance of property, upon a verbal stipulation that he will dispose of it "absolutely or conditionally for the benefit of an. other, ho will be compelled to'perform his'engagement.</p> <p>3. Where the question is, whether slaves were sold absolutely, or delivered as a pledge upon a. promise that when the sum intended tp be secured was paid, the person receiving them would settle them upon the creditor’s wife, the difference between the debt and the value of the slaves, the failure to .deny the right to redeem when the debt was tendered, and the declaration of the creditor made contemporaneously with the reception of the slaves, that he had bought them for the wife, are strong circumstances to show that they were not purchased unconditionally.</p> <p>4. If one person receives property from another, under an agreement to settle it on trustees for the benefit of the wife of the latter, a court of equity should not refuse to coerce an execution of the trust, because the details of the.settlement cannot be ascertained by the most stringent proof.</p> <p>5. The loss of a private paper is sufficiently shown" so as to admit secondary evi■dence of its contents, by proof that it could not bo found where it was last seen, pr amongst the papers of those persons to whom it would most’probably be intrusted. ' ’ . . "</p> <p>6. A party who has received property under an agreement to transfer it" to a third person, cannot object to perform his contract because the party delivering it to him was indebted either to himself or others.</p> <p>7. The statute of limitations of 1802, “ For the limitation of actions,” "does not begin to run against a married woman, until she becomesdiscovert; nor will the staleness of the demand prevent a recovery, where the statute has not completed a bar.</p>

<p>1. An executor, by appearing and submitting to account, waives all objection to the citation.</p> <p>2. A proceeding in the orphans court, instituted by husband and wife, to obtain the share of the wife in the estate, does not abate by the death of the wife ; but the settlement may proceed at the instance of the husband asher administrator.</p> <p>3. The decree, in such a case, must be in favor of the administrator, and it would be error in the court to make distribution thereof among the distributees of the deceased wife. Such distribution could only be made in a proceeding between the distributees and the'administrator.</p> <p>4. No decree can be rendered by the orphans court, unless the infant heirs or dis. tributces are represented by a guardian ad litem.</p> <p>5. The decree must be in favor of the infant, and not of his guardian.</p>

<p>WRIT of error to the Orphanss’ Court of Baldwin.</p> <p>The writ of error brings here for revision, a decree which is in the following words:</p> <p>«The State of Alabama, ? Orphans’ Court, in vacation. Held on Baldwin connty. ) the 3d day of Feb. A. D. 1841.</p> <p>This day came Joseph W. Davis, executor of the last will and testament of Benjamin Davis, deceased, and D. R. W. Davis, and Joseph P. Davis, and Frances M. Davis, and Sarah Ann Davis, by their attornies in fact, the said Joseph P. Davis, and Rachel Ellison and Jennett Johnson, by her attorney in fact, D. R. W. Davis, and prayed the court for a final settlement of said estate. The said executor havingmade his return andfiled his vouchers, the court after examination allows such as are embraced in the account of settlement hereto annexed, márked (A,) fi'om which it appears that the disbursements amount to the sum of fifteen hum dred and seventy-five dollars and forty-eight and a half cents-, and the receipts to the sum of one hundred and _seventy-seven dollars and fifty-five and a half cents. The' court orders, adjudges and decrees, that after the receipts be applied in the payment of the disbursements, that the balance be paid by the different legatees, in proportion to their respective legacies. And, the same having been agreed upon by the parties, the court orders, adjudges and decrees, that D. R. W. Davis pay five hundred and nineteen dollars, that Joseph P. Davis, Frances M. Davis and Sarah Ann Davis, pay four hundred'and eighty-two dollars, that Rachel Ellison pay two hundred and forty-four dollars, and that Jennett Johnson pay one hundred and fifty-three dollars. And it is further ordered, adjudged and decreed, that the said Joseph W. Davis pay to the said Joseph P. Davis, Frances Mi Davis and Sarah Ann Davis, the sum of twelve hundred and eleven dollars and thirteen cents, the balance found due, the said legatees, after the payment of their proportion of the debts — and it appearing by the settlement of the said executor and other proofs, to the satisfaction of the court, that the said Joseph W. Davis, ex-, ecutor as aforesaid, has used the legacy and fund of the said Joseph W.-Davis, Frances M. Davis and Sarah Ann Davis, it is further ordered, adjudged and decreed,- that they receive and ye-> cover of the said Joseph W. Davis, interest on the balance due the said Joseph P. Davis,' Frances M. Davis and Sarah Ann Davis, from the first day of January,' 1838.”</p> <p>made the following points: J. It does not appear that the decree was made at a regular term of the orphans’ court, or on a day in. vacation, designated, according to law. [Clay’s Dig. 303, §31.] 2. The record does,not show who were the legatees of the plaintiff’s testator, or that they were ^11 ip court, eitherjn person or by attorney. [Horn v. Grayson, 7 Porter’s Rep. 270.] 3. The accounts and vouchers of the executor, were not presented for examination, statement and allowance, and notice thereof given forty days previous to the rendition of the decree; but the court acted finally, upon the presentment of the accounts. [Horn v. Grayson ut supra, Clay’s Dig. 226, § 27, 304, § 38.] 4. The judgment' is joint in favor of three, instead of ascertaining the sum severally due each. [Clay’s Dig. 304, 305, § 42-3-4.] 5. The decree, is rendered against the executor in his individunl, instead of his representative character. [Toller’s Ex’rs, 264; Hogg v. White’s adm’r, Hayw. Rep. 298.] 6. The decree does not require the legatees or dis-tributees to execute a refunding bond. [Clay’s Dig. 196, § 23-4.]</p>

<p>Whit of error to the County Court of Mobile county.</p> <p>Covenant by O’Conner against Barelli and Martin, upon a lease; by the covenants of which, they bound themselves to pay rent on a day certain. They pleaded — 1. That they never were possessed of the demised premises. 2. Accord with satisfaction, in this, that the defendants, before the commencement of the action, paid to the plaintiff 175 dollars, in full satisfaction and discharge of the said sum of-dollars, in the breach of covenant mentioned, which the plaintiff accepted in full satisfaction and discharge of the said sum of --dollars, in said breach of covenant mentioned.</p> <p>The plaintiff had judgment upon a verdict; but at the trial, the proof, on his part, was the lease, by which the defendants agreed to pay him 350 dollars for the rent of certain premises for 10 months, at the rate of 33 1-3 dollars fer each month, payable monthly. Martin was principal, and Barelli only security, in the lease.</p> <p>The defendant then offered a witness in support of his plea. This witness stated that he occupied the house, &c., mentioned in the lease, daring the months of April and May, 1841, (a portion of the time covered by the lease); that he obtained possession from Martin, but paid the plaintiff on the 11th May 25 dollars, in full ofone month’s rent to the 1st May, for which the plaintiff .gave him a receipt, which was produced, and which stated that the house was held by the witness of the plaintiff. The defendant then offered to prove by the same witness, that Martin was no longer the plaintiff’s tenant, by reason that the contract be» tween the parties had been rescinded. The plaintiff objected to this question, on the ground that the evidence of the rescission of a contract under seal, before a breach thereof, must be in writing under seal, and not by parol; and that .'such evidence would be irrelevant to the issue.</p> <p>The court sustained the objection, and ruled, that the witness should not make a statement of any remarks made to him by the plaintiff in relation to the rescission of the contract expressed in the lease. V..7</p> <p>The defendants then requested the court to chargé-.the jury, that if, from the receipt given to the witness for rent, they should be satisfied that the plaintiff had acknowledged him as his tenant, they would be authorized to infer that the plaintiff had taken charge and possession of the premises from Martin, and must find for the defendant. This was refused, and the jury instructed, that they could look to the receipt for no other purpose than as evidence of the payment of money.</p> <p>The exclusion of the parol evidence and the charge of the court are now assigned as error.</p> <p>cited 9 Pick. 298; 14 John. 330; 3 Cowan and -Hill's Notes, 1479.</p>

<p>Error to the Circuit Court of Jefferson.</p> <p>The plaintiffin error send out an attachment before a justice of the peace, as a landlord, against the defendant as his tenant, upon an affidavit, “that Joseph M. Gill is justly indebted to the said Williamson Hawkins, in the sum of one hundred dollars due from him for the rent of land for the year 1843, and that the said Gill has removed off the premises, to him rented by the said Hawkins, a part of the crop grown upon said land, and is about to remove the residue without having paid the rent for said land.” Bond being executed in the penal sum of two hundred dollars, an attachment was issued by the justice, commanding the sheriff to attach “so much of the crop of the said Joseph M. Gill, if to be found, &c. repleviable on security, as shall be of value sufficient to satisfy the said debt and costs,” &c.</p> <p>At the return of the attachment, the court on motion, quashed the attachment from which this writ is prosecuted.</p> <p>insisted that the attachment given in this case, must conform to the general attachment law, and that the affidavit was insufficient, because it did not state that the attachment was not sued out for the purpose of vexing or harrassing the defendant.</p>

<p>1 Where one acquires tlie possession of slaves under a contract with the owner to pay an equivalent for their services, and restore them to him at the end of the year, a renewal of this contract from year to year, thus continuing the possession of the hirer, without interruption for more than three consecutive -years, is not a loan, &c. within the second section of the statute of frauds, so as to subject the slaves to his debts.</p>

We.it of error to the Circuit Court of Mobile county. Claim by George W. Cullum; to certain slaves levied on by an execution from the county court of Mobile county, at the suit of Smith & Conklin against Charles Cullum. Upon the return of the claim into the circuit court, the claimant moved to dismiss it on the ground that the court had no jurisdiction, inasmuch as the levy was made upon an execution from the county court. The court refused to dismiss the claim.

<p>1. The offence of keeping a house of public entertainment for travellers, either in town or country, without first obtaining a license therefor from (he county court, is punishableby indictment or presentment, although spirituous liquors bo not retailed in the house ; but no tax can be demanded on granting a license to keep a house of public entertainment, unless it be in a city or incorporated town or village.</p>

We.tt of error to the Circuit Court of Pickens. This was an action of trover by the plaintiffs in error, against the defendant, to recover damages for the conversion of a female slave named Silvey. The defendant pleaded, 1. Not guilty. — ■ 2. That he was sheriff of Pickens county, and as such, received two writs offieri facias, (which are set out in extenso) with the indorsements and returns thereon; these executions are against the goods and chattels, &c. of John Shepherd.

<p>Stewart, on behalf of the defendant in error, produced the cei'tificate of the clerk of the circuit court of Mobile county, that a writ of error in this case had been sued out returnable to this term; and also produced the citation issued and served. Upon these, he moved that the case should be docketed, and the defendant allowed to confess error.</p>

<p>1. A negotiable instrument received before it is due, in payment of a pre-existing debt, is received in the usual course of trade between merchants, and will protect the holder against a latent equity between the original parties, of which he had no notice.</p> <p>2. A negotiable instrument received from the payee, before maturity, as an indemnity against future loss on a suretyship then existing on the part of the holder, for the payee is not a transfer in the usual course of trade, so as to pre* elude the maker from availing himself of a latent equity between him and the payee.</p>

<p>Wkit of error to the Circuit Court of St. Clair.</p> <p>This was an action commenced by attachment at the suit of the defendant in error, to recover a sum of money, claimed to be due from the plaintiff for goods, wares and merchandize, previously sold and delivered to him. The defendant pleaded in abatement, the pendency of another suit by attachment, for the same cause of action.' T o this plea, the plaintiff replied, nul tiel record, and concluded with a verification; the defendant rejoined, the plaintiff sur-rejoined; whereupon an issue of fact was joined, and the cause submitted to the jury. On the trial, the defendant excepted to the ruling of the court. The'bill of exceptions shows that the sheriff of St. Clair was introduced as a witness by the defendant, to prove some of his official acts in respect to this cause; whereupon the plaintiff’s counsel asked him if he was interested in the event of the suit, to which he answered affirma-tivety. The defendant’s counsel then interrogated the witness as to the nature of his intesest, to which he answered substantially as follows, viz: On the 30th June, 1842, F. B. Walker sued out a bail writ against the defendant, under which the witness immediately arrested him, and shortly afterwards he escaped from the custody of the witness. After such escape, on the 19th of July, 1842, Walker sued out an attachment as ancillary to his suit, which was levied on the same property, which had been seized on the plaintiffs attachment. Walker has recovered a judgment in his suit against the defendant. Some other attachments were levied on the same property prior to Walker's, and if all of them are sustained, the property will not be sufficient to satisfy them and Walker’s judgment. Witness supposed that he might be liable to Walker for defendant’s escape, but he had no other interest than such a state of'things would occasion. The court adjudged, that the witness was incompetent, by reason of his interest, and excluded his testimony.</p> <p>The jury found the issue in favor of the plaintiff, and assessed his damages; whereupon a judgment was rendered accordingly.</p> <p>cited Johns. Rep. 256; 5 Stew’t & P. Rep. 426; 2 Porter’s Rep. 389; 9 id. 126; Greenl. Ev. 434; 18 Wend. Rep. 490; 4 id. 292.</p> <p>cited 1 Salk. Rep. 283; 6 Bing. Rep. 390; Greenl. Ev. 438; 2 Stew’t Rep. 17; Minor’s Rep. 256.</p>

<p>L Where the transcript of the record shows a consent by the defendant, endorsed on the writ, to waive the declaration, and that tho endorsement of the cause of action shall be used in place of it, a judgment by default will not be revers. ed because this consent does not appear from the record to have been proved to the court below. The proper course, if no such consent was given, is to apply to the court below to vacate the entry of consent and thus make the record in accordance with the fact.</p>

<p>Error to the Circuit Court of DeKalb,</p> <p>submitted the cause.</p>

On points referred from the Circuit Court of Montgomery. The defendant was indicted for retailing spirituous liquors in less quantities than one quart, without having first obtained a li-cence for that purpose, from the county court of Montgomery.— The cause was tried on the traverse of the defendant, the jury found a verdict of guilty, a fine of thirty dollars was imposed, and a judgment was rendered for that sum and costs..

<p>1. Where process against a corporation is returned as served upon one being pre. sident of the corporation, it is necessary that proof of his official character should he made to the court, and so appear on the record, to sustain a judgment by default.</p>

<p>1. Heirs or distributees are not competent witnesses for the executor or adminis. trator to establish a claim in favor of the estate, although they executé releases of all their interest in the demand in suit.</p>

<p>1. Where a defendant, against whose estate a writ of fieri fad as is sued out, dies after the same has been injoined, his lands are not subject to levy and sale under an execution issued after his death, upon the dissolution of the injunction. The act of 1835 “ to authorise the issuing of executions in certain cases, and for other purposes, does not apply to such a case.</p>

<p>Writ of error to the Circuit Court of De Kalb county.</p> <p>Winston and the other plaintiffs sued the defendants before a justice of the peace, and after judgment, the latter appealed to the circuit court, where the plaintiffs filed their declaration, setting out that the defendants were indebted to them by a promissory note, dated 27th March, 1843, whereby they acknowledged themselves to be indebted to the plaintiffs in the sum of 193 50-100 dollars, to be paid in four equal instalments: one-fourth in six months; one-fourth in 12 months; one-fonrth. in 18 months; and one-fourth in 24 months — and alleging that the first instalment was due and unpaid, and was alone sought to be recovered.— The defendants pleaded to issue; but when the note was .produced and read to the jury, the court withdrew the cause from the jury, and dismissed the, suit for want of jurisdiction. This is now assigned as error. >■</p> <p>insisted that the action was properly instituted, .and within the jurisdiction of, the court. The first instalment only was due, and this is less than -50 dollars. [Lightfoot v. Bank at Decatur, 2 Ala. Rep. 345.]</p> <p>Under the circumstances, it was improper to arrest the suit'from the jury without a verdict. [Minge v. Curry & Co. 4 Ala Rep. 168.]</p>

This bill was filed by the defendant in error, to foreclose a mortgage executed by Pollard to Murrell, to secure the payment of anote executed by Edwin Haniman to Joseph Bates, by him endorsed to John Pollard, and by him to the defendant in error. The mortgage contains a proviso, that the mortgagee “shall be debarred from his remedy on the mortgage,' until he shall have sued Haniman & Bates to insolvency.” The bill alleges that Haniman & Bates have been sued to insolvency.

Writ of error to the Circuit Court of Pickens. The plaintiff in error was indicted by the grand jury of Pick-ens for having inflicted, “on a negro woman named Rachel, a slave, the property of him, the said Turnipseed, cruel and unusual punishment, against the peace and dignity of the State of Alabama.” The accused traversed the indictment, and was tried by a jury, who returned a verdict of guilty, and assessed a fine of fifty dollars against him; for which sum, as well as…

<p>Whit of error to the County Court of Mobile county.</p> <p>Assumpsit. The declaration contains-three counts; the first and third are against the defendant Ryland, as the indorser of a promissory note, described in the first count as made by McRae &Lang, and in the last, as made by IVlcRae. The note is not payable in any bank, and the excuse set out in both counts, for the omission to sue the maker to the first court of the county where he resided, is, that the suit was delayed by the consent of the defendant. The second count, is for money lent by the plaintiff to the defendant.</p> <p>The defendant demurred to the first and last count, and his demurrer was sustained.</p> <p>At the trial, he also demurred to the plaintiff’s evidence. That was as follows: A note signed McRae & Lang, by C. C. JMcRae, surviving partner, dated Mobile, 7th March, 1838, payable one day after date, to the order of the defendant, for 3,600 dollars, and indorsed'by him. A witness proved that the defendant in a conversation with him, said he had procured some money from the plaintiff, and gave a note for it prior to his departure from the city. The witness did not know the amount of the note. The defendant had leftnotes with McRae &Lang, (the indorsers of that note) to be collected, and the money to be applied to its payment. The same witness also proved, that he was present at a previous trial of this suit, and that McRae, the maker, who is now dead, then testified that the note, in evidence in this suit was given by the defendant to the plaintiff, in lieu of the other note, which was given up. That the note was drawn in this form, to enable the holder to claim interest; but he wus to wait 12 months with the makers. He also testified that he, McRae, had collected the notes left with him by the defendant, prior to the suit, and had used the money. The witness further proved, that McRae was insolvent at the date of the note, and that his insolvency became notorious a short time afterwards.</p> <p>The court sustained the demurrer to the evidence, and gave judgment for the defendant.</p> <p>The evidence of a witness for the plaintiff, had previously been offered, and its introduction resisted, on the ground of interest. One of the interrogatories propounded by the defendant to this witness, was, whether she had any interest in the suitor claim, or would be in any manner benefited by a recoveiy against the defendant. This was answered in the negative. The defendant read the deposition of another witness, who stated that she had asked the witness whose deposition was resisted, if she was not interested in the money contended for in this suit, and her reply was, yes. The defendant’s witness then said, she had always understood that the other witness’ mother, herself and her brother, were interested; to which the other replied, that her mother, herself and James F. Bams, owned some cattle together; that James F. Bates drove the cattle to town and sold them, and that he had never made any division of the money.</p> <p>A witness also proved, that the plaintiff told him he had borrowed a part of the money from his sister (the witness whose deposition was resisted) to lend to the defendant, and that he was responsible to her for it.</p> <p>Upon this evidence, the court rejected the deposition, and the plaintiff excepted.</p> <p>The sustaining the demurrers to the first and third counts.</p> <p>The judgment upon the demurrer to evidence — and,</p> <p>The rejection of the deposition was now assigned as error.</p> <p>made the following points: 1.Under the statutes, prescribing how an indorser shall be m.ade liable, suit to the first court against the maker, and a return of no property, is put instead of demand and notice by the law merchant. The act contemplates that the parties may agree otherwise, and allows consent as an excuse for the omission to comply with the requisitions. So, other circumstances have been held to excuse suit at the first court, or afterwards. [4 S. & P. 408; 2 Ala. Rep. 736.]</p> <p>It is true, a return of no property, is mentioned in the statutes; but it is presumed, the fact of insolvency is the material matter upon which the indorser’s liability becomes fixed; and it would be difficult to avoid the consequences of an admission of insolvency.</p> <p>2. The giving of the note in this case, was no discharge of the pre-existing contract. It was the substitution of one promise for another, without any new or distinct consideration — consequently, as soon as the note of McRae was dishonored, or remained unpaid, after the time given with the consent of the defendant, the plaintiff was entitled to sue on the original contract — [6 Shepley, 250; Hughes v. Wheeler, 8 Cowen, 77; Raymond v. Merchant, 3 ib. 147] — unless it was otherwise, expressly agreed. [Page v. Bank, 1 McCord, 449; 7 Wheat. 35; 2 Caines, 117; 6 Term, 52; 8 ib. 451; 7 ib. 64; 9 Conn. 23; 3 H. & J. 193; 5 John, 68; 2 John. Ca. 438; 7 John. 313; 9 ib. 310; 2 Ld. Raymond, 928; 5 M. & S. 62; 4 Gill & J. 307.]</p> <p>3. The deposition was improperly rejected upon the confession of interest in the witness; oven if any such confession of interest is clearly proved. [5 Mass. 261; 8 ib. 487; 2 J. J. Marsh. 188; 4 ib. 116; 4 McCord, 310; 6 Shepley, 412; 5 Ala. Rep. 35.]</p> <p>1. That two conditions are imposed on the holder of a note, not payable in bank, before an in-dorser can be charged. 1. A suit against the maker at the first court. 2. A recovery of judgment against him, and a sheriff’s return of no property: each of these conditions may be waived or discharged without affecting the other. [4 Ala. Rep. 394; 2 ib. 738.]</p> <p>2. The note of McRae & Lang was an additional security to the plaintiff; and the precedent debt of the-defendant for the loan, was thereby extinguished; therefore, suit could, be brought only upon the contract of indosemcnt. [21 Wend. 450; 1 Hill, 516; 2 Porter, 401.]</p>

<p>This case was brought from the Circuit Court of Fayette on points reserved by the presiding judge as novel and difficult.</p> <p>The prisoner was indicted for the murder of a slave. The jury found him guilty of murder in the second degree, and the court sentenced him to imprisonment in the penitentiary for ten years.</p> <p>A motion was made for a new trial, because the verdict of the jury was contrary to law and evidence; which motion was allowed by the court, and a new trial granted, if this court should be of the opinion that a new trial can be granted in such a case as this.</p> <p>The provision of the .constitution of the United States, that “No person shall be twice ■put in jeopardy of life or limb for the same offence,” is an ancient maxim of the common law; and to that source we must look to ascertain its meaning. It is by the force of this acknowledged maxim of the common law, that a prisoner cannot, after an acquittal, be again tried for the same offence; and the same rule applies where he is convicted. No case can be found in the English books in which a new trial has been granted, where the trial has been regular, and the jury has passed upon the prisoner’s guilt. He cited 2 Sumner, 19.</p> <p>were stopped by the court. They referred to 7 Porter, 217; 3 Dali. 315; 2 Mass. 303; 1 Blackford, 395; 6 S. & R. 577; State v. Fisher, McCord’s Rep. 264; 18 Johns. 212; 1 Johns. C. 104.</p>

<p>Whit of error to the Circuit Court of Bibb.</p> <p>This was an action of trespass at the suit of the plaintiff in error, against the defendant, for taking and carrying away a female slave named Amy, four mules, two horses, one wagon and one barouch, alleged to be the property of the plaintiffs. The cause was tried on the plea of not guilty, to the entire declaration, and two special pleas of justification, as to all the property in question, save the mules, under writs offieri facias, against the goods and chattels, &c. of William Kirk, which were placed in the hands of the defendant, as the sheriff of Bibb county, to execute. A verdict was returned for the defendant, and judgment thereon rendered.</p> <p>On the trial, the plaintiffs excepted to the ruling of the presiding judge. It appears from the bill of exceptions, that the plaintiffs offered as evidence, several depositions taken in the State of Mississippi: the defendant objected to their admission,on theground that they were taken by Thomas N. Barham, under a commission addressed to Thomas N. Barnham and William Carr, or either of them; the objection was sustained by the court, and the depositions excluded.</p> <p>The defendant offered as a witness, James Cave, but the plaintiffs objected to his examination, on the ground that he was interested in the result of the suit; the witness being examined on his voir dire, stated that he did not know that he was interested, but said he was a stockholder in the Real Estate Banking Company of South Alabama. It was then shown, that Robert R. Nance had given an indemnifying bond to the defendant as sheriff, to save him harmless for levying on the property, for the seizure and sale of which, this action was brought; that a part of the proceeds of what had been sold, had been applied to a judgment in Nance’s favor, and that Nance was the reputed agent of the Real Estate Banking Company. The court adjudged that Cave was a competent witness, but the facts recited mitght go to the jury to impeach his credibility.</p> <p>The plaintiff’s counsel then prayed the court to charge the jut-ry, that if they should find for the defendants, they should render a special verdict, stating under which of the defendant’s pleas they found their verdict, which charge was refused by the court.'</p> <p>The plaintiffs here assign for error the questions arising upon the bill of exceptions; and further, that there was a demurrer to the third plea, which does not appear to have been disposed of by the circuit court.</p>

<p>Whit of error to the Circuit Court of Randolph county.</p> <p>Trover, by Lewis and the other plaintiffs, to recover damages from the defendants for the conversion of certain bricks, boards and rails.</p> <p>The defendants pleaded the general issue; and, also, that tho property in the bricks, &c., was in one of them. To the latter plea, the plaintiff demurred, and tho court sustained the demurrer.</p> <p>At the trial, the proof conduced to show, that the bricks, boards and rails were made by the plaintiffs on and out of the soil and timbers of a certain 40 acre tract of land, which, at the time when the bricks, &c., were made, belonged to the United States; being then unoccupied and subject to entry. The bricks were in a kiln, burned, and fenced in by the rails and covered by the boards on the said tract of land, from August, 1842, until the middle of October of the same year.</p> <p>One of the defendants’ entered and paid for the tract of land on the 12th September, 1842, and showed the proper certificate in evidence. After this time, the defendants took the bricks, sold them, and used the rails and boards.</p> <p>On this evidence, the court charged the jury, that the bricks, rails and boards were of that kind of property for the conversion of which an action of trover would lie; that if the bricks, &c., were made by the plaintiffs out of the soil and timber of the said tract of land, prior to the 12th of September, 1842, the defendants were liable for the conversion, although one of them then entered the land, and the bricks, &c., were remaining on it at the time of the conversion; and that there was no difference, so far as this case was concerned, whether the plaintiffs were regarded as trespassers on the public lands or tenants at will of the United States. These charges were excepted to, and are now assigned as error; as is also the overruling of the plea demurred to.</p> <p>cited 4 Ala. Rep. 402; 7 Cow-en, 95; 6 Johns. 169; 1 Ala. Rep. N. S. 219,</p>

<p>1. In a prosecution by the State against a husband for an assault and battery on J}is wife, the wife isa tíompetent witness for the husband to disprove the charge.</p>

Whit of error to tho County Court of Sumter. This was an action on the case at the suit of the plaintiff in error against the defendant. The declaration contains two counts.

Wkit of error to the Circuit Court of Mobile county. Claim of property, by Desha, Sheppard & Co., to 18 bales of cotton, levied on by the sheriff of Mobile county, by virtue of an-execution in favor of Pope & Son, against W. J. Alexandei’. At the trial it appeared, that the execution under which the levy was made, came to the sheriff’s hands on the 20th day of December, 1841, and was levied the day afterwards.

<p>, J. A promise, not in writing, to pay the debt of another, is within tjle statute of' frauds, unless it be made upon some new consideration beneficial to the. pro-missee.^</p> <p>2. A promise by one, that he will pay the debt of another, if the creditor, will state the account, and make affidavit of its correctness, before the Mayor of the city of Philadelphia, is void under the statute of frauds, unless it be in writing.</p> <p>3. The declaration in such a case, need not state that the promise was in writ» ing; it will be sufficient to prove it to be so on the trial.</p>

Wbií of error to the Circuit Court of Barbour.- This was an action of assumpsit at the suit of the plaintiffs in error against the defendant.

<p>Whit of-error to the County Court-of Sumter county.</p> <p>Logan sued Hodges before a justice of the peace in ten suits on promissory notes, which were removed into the county court by certiorari. There' the suits were separately disposed of; and at the trial of this one, upon the pleas of usury and non-assumpsit, the respective statements of the parties, under oath, were suffered to go to the jury without any exception taken on either side. According to the defendant’s statement, the notes were entirely for usurious interest; but, by that of the plaintiff, they were given upon the consideration of his assuming to pay a debt due from the defendant to one Glover by note; which debt constituted a lien on certain lands, which the plaintiff had purchased from the defendant, and which the latter had conveyed upon the receipt of 1000 dollars in money, and the cancellation of certain notes which the plaintiff admitted to be for a usurious loan, and in which the usurious interest vas greatly more than the sum of the notes sued for in these actions. The plaintiff set out, that he had paid and taken up the defendant’s note in April, 1843. The record disclosed that this suit was commenced in April, 1842.</p> <p>On this state of proof, the court charged, (after giving instructions as what verdict ought to be rendered by the jury if they considered the notes as given for usurious interest,) that if the jury believed the note sued on was made by the defendant in consideration that the plaintiff agreed to pay the note of the former to Glover, that it was incumbent on the plaintiff to show, by proof, that he had paid it before bringing this suit. The plaintiff excepted to this charge, and it is now assigned as error.</p> <p>cited 8 Johns. 39; 10'ib. 412; 18 jb. 12; 9 Cowen, 639,</p>

<p>Error to the Circuit Court of Fayette.</p> <p>This action was commenced before a justice of the peace, by the defendant in error, on two notes, fortwenty dollars each, in the following form. *</p> <p>The Real Estate Bank, No, 52, of Caledonia, Mississippi, promise to pay John Elliott or bearer, twenty dollars, on demand, at their banking house, Caledonia, Mississippi. — May 8,1838.</p> <p>W. G. Weight, Pres’t</p> <p>R. Dowdle, Cashier.</p> <p>Judgment being rendered for the defendant, the plaintiff appealed to the circuit court, where judgment was rendered for the plaintiff.</p> <p>Upon the trial, it appeared that the Real Estate Banking Company was an association of unincorporated individuals for the purpose of banking, and that the defendant was a member thereof, for a certain period — that the company issued notes, as bank notes, to be in circulation from time to time, as the board of directors might direct. That the defendant broke up his connection with the company, and was released on the 19th May, 1838. That the notes sued on, were not in fact made and put in circulation at the time they bore date; but after the defendant ceased to be a member of the company; which evidence was rejected, because no plea of non est factum was interposed, to which the defendant excepted.</p> <p>The defendant moved the court to charge, that the plaintiff to entitle himself to a recovery, must prove a demand at the banking house of the company — which the court refused, and he excepted.</p> <p>The assignments of error, present for revision, the rejection of the testimony and the charge of the court.</p> <p>cited 1 Stew’t, 155*</p> <p>[2 Ala. Rep. 343, 705.]</p>

Weit of error to the Circuit Court of Greene. This was an action of debt on a specialty, for the payment of four hundred dollars.

<p>Whit of eiTOl’ tb 'the Circuit Court of Benton.</p> <p>Assumpsit by ETtóes ‘ágaitíst Sorellé, as the maker of a promissory note. The defendant pleaded, that the note Was made by one S., acting under and by virtue of a written power from the defendant, to sign his name, but a clause was therein inserted, that no nóte executed by S. for his own benefit, should be binding ’on the principal, unless notice was given to him by the, payee, within 30 days, next after the execution of the note, and the plea was, that no such notice was given in this case. This plea concludes to the country, but another to the same effect, concludes with a verification. Both were stricken out on, the motion of the plaintiff; this is the only error assigned.</p>

Writ of error to the County Court of Perry, Assumpsit by Davis, as indorsee of one William, G. Davis, against Carlisle, as the maker of a promissory note. The defendant pleaded non-assumpsit, verified b,y oath.

Whit of error to the Circuit Court of Autauga. This was an action of trespass, quare clausum fregit, at the suit of the defendant in error. The declaration is in the usual form, but the indorsement on the writ states, that the action is brought as well as to try titles to sundry quarters of a quarter and half quarter sections of land (particularly described) as to recover damages for the detention of the same.

<p>1, When a debt due by promissory note is attached by gaHiishee process, ífré'ser-vice creates a !ien upon the debt, which cannot be defeated by a subseijúent bona fide transfer by the payee of the note to a third person, notwithstanding the entire ignorance of the assignee of the process or its service.</p>

EaaoR to the County Court of Perry, This was a proceeding before John R. Goree, Isham W. Garrett and John Lockhart, commissioners appointed by a judge of the circuit court to settle the estate of David Yarbrough, the judge of the county court being incompetent to sit from interest. The estate having been previously reported insolvent, the plaintiff presented a note for $5,000, executed by the deceased, for allowance.

<p>X. The relation of principal and surety continues, even after the rendition of a judgment against them, so as to entitle the latter to insist upon his discharge when without his. consent, the creditor agreed to indulge the former upon a sufficient consideration.</p> <p>2. The surety alleged in his bill, that the creditor indulged the principal williout the complainant's consent; the defendant answered, that the indulgence was given with the surety’s consent: Held, that the negative averment was not only proper, but necessary, yet it was pleading what it was not incumbent on the complainant to prove, but the defendant should prove the reverse, and his answer would not he evidence to establish the fact for him.</p>

<p>1. The register of a court of chancery is subject to garnishee process, with respeci .to a surplus remaining in his hands belonging to the defendant in chancery, after sale of property to satisfy a mortgage decree, although the sale has not been confirmed, and although he is described by the decree to apport his doings at the next term of the chancery court.</p>

<p>Error to the Circuit Court of Perry.</p> <p>Petition for dower by the defendant in error. From the facts Agreed, it appears that the husband of the petitioner was seized •of a house and lot in the town of Marion, in which he died. — • That previous thereto he had executed a deed of mortgage on the property with a power of sale, but that the widow had not relinquished her dower therein. That after the death of the husband, the plaintiff in error purchased the property at the sale tinder the mortgage. That the estate is insolvent, and that a division of the premises, so as to give the widow one-third part thereof, including the dwelling house and out houses, would make the dower greatly more than one-third part of the value thereof, and leave the rest of but little or no value.</p> <p>Thereupon, the court appointed five commissioners, who assigned to the widow one-third part of the lot by quantity, including the dwelling house, out-houses, &c.; which was confirmed by the court. From this judgment, this writ is now prosecuted.</p> <p>The assignment of error is, the confirmation of the report of the commissioners.</p>

<p>Weit of error to the Circuit Court of Perry.</p> <p>This was an action on the case by the plaintiff against the defendant, for wrongfully and maliciously suing out an attachment against him. The cause was tried on the plea of not guilty, and the jury returned a verdict for the defendant, on which judgment was rendered.</p> <p>On the trial, the plaintiff excepted to the ruling of the court. It appears from the bill of exceptions, that the defendant having shown the absence of the plaintiff from this State at the time when the attachment was sued out, the plaintiff'offered to prove, by common reputation in the neighborhood in which both parties resided, that at and a short time before the attachment issued, the plaintiff had left the State on a visit to see his children in Mississippi. But the court excluded all evidence of common reputation, unless it was brought to the knov ledge of the defendant before he sued out his attachment. 'The plaintiff then offered to prove, that at and before leaving for Mississippi, he informed many of his neighbors of his intention to go there, and the object of his visit; and that he would return in a few weeks. But the court excluded this evidence.</p> <p>The court charged the jury, that if they believed from the testimony that the plaintiff had left the State a sh'ort time previous to suing out the attachment, the defendant had probable cause for causing it to be issued; and unless the plaintiff could show that he informed the defendant before he left home of his intentionto leave, he could not maintain this action.</p> <p>cited 1 Phil. Ev. 231-2; 0. & PI.’s Notes, 592; Ponsony v. Debaillon, et al. 6 Martin’s Rep. N. S. 288; Grecnl. Ev. 101,108,110, 113, 120; 5-Porter’s Rep. 382; 2 Poth. on Ob., No. xvi. sec. xi.; 5 T. Rep. 512; 7 id. 509; 5 Litt. Rep. 5.</p> <p>insisted that the common reputation of the plaintiff’s visit to Mississippi, and the object of it, was inadmissible; the cases cited by the plaintiff’s counsel do not show that such evidence was ever admitted for such a purpose. His declarations, also, were properly excluded under the rule, which inhibits a party from making testimony for himself.</p> <p>The absence of the plaintiff from the State, was •primafacie sufficient to show a probable cause for suing out the attachment;- and the charge that the plaintiff should have informed the defendant ofhis intended absence, whether erroneous or not, conld not have prejudiced him. The defendant’s counsel cited Middlebrook vv Ames, [5 Stewt. & P. Rep. 158.]</p>

<p>Weít of erior to the Circuit Co’uut of Russell county.</p> <p>Assumpsit by Wells & Co.- against Mrs. Vance, on a promissory note. Plea, coverture. Replication, that since the death of the husband, the defendant promised to pay. The defendant demurred to this replication, but the court oveiruled the demurrer, and gave judgment for the plaintiff. This is now assigned-as error.-</p> <p>cited 1 Strange,. 94; 1- Shower, 188; 2 B. & A. 811; 8 Term, 545; 1 Bailey, 184; Ruger v. Lesporles, ex-r, 1 Dudley. 188; 1 Com. on Con. 162; Gould’s Plead. 453, 567.</p>

Ejectment by the defendant in error against the plaintiff in error. The plaintiff below, to sustain his case, introduced in evidence a patent from the United States to the lessors of the plaintiff for certain land in the city of Mobile, and proved that the premises sued for were within the lines of the patent.

<p>Weit of error to the Circuit Court of Dallas.</p> <p>This was an action ■ of assumpsit by the defendant in error against the plaintiff, to recover the sum of one hundred dollars, with interest, being the amount of two instalments of five per cent, each, upon one thousand dollars of the stock of the company pre? viously subscribed for.</p> <p>The cause was tried upon issues to the pleas of non-assump-sit, nul tiel corporation, fraud, &c. A verdict was returned for the plaintiff for the sum claimed, and a judgment was rendered accordingly. On the trial, the defendant excepted to the ruling of the court. From the bill ■ of exceptions, it appears that the defendant offered to prove by Hugh Ferguson, one of the commissioners appointed by the act incorporating the company, to open books for subscriptions for stock, that he, the witness, had expressed the opinion very frequently, in the community, with a view to obtain subscribers, that a stockholder could relinquish his stock by failing to pay an assessment thereon for ninety days. There was no attempt to show that the defendant was aware of the witness’ opinion, and the court excluded his evidence.</p> <p>The defendant proposed to prove by the testimony of the same witness, who was also the secretary of the company, and by the books of the company,, that the directors of the corporation, by resolution passed before the institution of this suit, had given to the large stockholders the right to. relinquish some of their stock» of which some of them had availed themselves; but that right had been denied to those who owned no more stock than the defendant. This evidence was also excluded, the court believing the resolution of the directors to be unauthorised and void.</p> <p>It was then shown that the commissioners had opened books of subscription, stock had been subscribed for, the company had organized by electing a board of directors, and made some contracts for doing work on the road; and more than five per cent, on the subscriptions had been paid. But the entire capital stock had not been sold. The defendant subscribed for ten shares of stock at Burnsville, in Dallas, on the 17th March, 1837, in the same subscription book that was used at Selma, and was then in the possession of one of the commissioners who was then at Burnsville, for the purpose of receiving subscriptions under an authority from the Directors.</p> <p>The defendant did not pay five per cent, upon the shares subscribed for, at the time of his subscription; but he had since paid it in satisfaction of a judgment that had been rendered against him, upon a suit brought for its recovery — whether that suit had been defended or not, the evidence did not show.</p> <p>Upon this evidence, the court charged the jury, that if the defendant did not pay five per cent, upon the shares taken by him, simultaneously with his subscription, and had done no act that recognized him as a corporator, the plaintiff could not recover.— But if he had since paid that amunt voluntarily, or after judgment, he would be estopped from denying that he was a corpo-rator. Further, the directors had no right to direct books of subscription to be opened at Burnsville or elsewhere; unless after a sale of delinquent stockholders shares, to supply a deficiency occasioned by such sale; and if the defendant subscribed for stock when the books were opened by the authority of the directors, under any other circumstances, his subscription would not be binding upon him. But if the defendant afterwards paid the five ■per cent, voluntarily, or after suit brought, and the plaintiff had assented to, or accepted the subscription, it wonld then be binding on-the defendaut.</p> <p>insisted upon each of the points raised upon the bill of exceptions, as showing that the law of the case had not been correctly determined by the circuit court. He cited the act of incorporation of 1837, § 17, 20; 2 Stew’t Rep. 38; 9 Porter’s Repj 633; 8 Serg’t & Rawle’s Repj 219; 13 id. 256; 1 Caine’s Rep. 391; Dissenting op. of Lewis, J.</p> <p>was stopped by the court upon the points arising on the rejection of the evidence. He denied that the defendant conld urge the non-payment of five per cent, at the time of his subscription; the more especially as the company had organized before he subscribed. But if the cash payment was an indispensable condition to the validity of the subscription* the subsequent payment, whether voluntary or not, confirms the contract for stock between the plaintiff and defendant, and obliges the defendant to pay for it in toto. [See the Selma and Tennessee R. R. Co. v. Tipton, 5 Ala. Rep. and cases there cited.]</p>

<p>1. A guaranty in these Words, “ X bind myself to pay this bote ¡f T. M. Ii. (tbv maker) does not,” made upon the back of the biJl by oné Who is not a party to it, is not within the statute defining the liability of indorsers j and the diligence required of the holder is to sue the maker to the first court subsequent to the guaranty: but this is unnecessary when the maker is unable to pay by reason of insolvency, and in such event an action on the guaranty will lie without any suit against the maker.</p> <p>2. The prima facie intendment of such a guaranty* considered in connexion with the single bill is, that the contract was made with the payee.</p> <p>3. Such a guaranty is a promise in writing, and as such, imparts a consideration* until it is shown to have none.</p> <p>4. In a declaration on such a guaranty it is only necessary to set out the single, bill with respect to which it was made, the guaranty, according to its terms or according toils legal effect, the facts from which diligence is tobe inferred', or the insolvency which renders diligence unnecessary, and a sufficient breach of the contract.</p> <p>5. The omission to fill up a blank in the declaration, with a day of the month and year, when the precise date is immaterial, cannot be taken advantage of by general demurrer.</p>

<p>Error to the Circuit Court of Dallas.</p> <p>Motion to dismiss the writ of error.</p>

Weit of error to the County Court of Tuskaloosa. This was an action of assumpsit by the plaintiff in error against the defendant, as the indorser of a bill of exchange for nine hundred and twenty-eight dollars, of which he was the payee, and John Meek, both drawer and acceptor. The cause was tried on the plea of non-assumpsit. On the trial, the plaintiff excepted to the ruling and instructions of the court.

Whit of error to the County Court of Sumter. Assumpsit by Metcalf, as the indorsee of a promissory note, described in the declaration as made by Winston, for the payment of 200 dollars, to one Waller, on the 1st January, 1842, for the hire of two slaves, which were to be returned clothed as slaves usually are. The breach assigned is, the non-payment of the money, and the not returning the slaves clothed in the usual manner.

This case was argued at the same time'with the case of Hal! v. Hallett and others, at the hist term. it. will lie seen, however, from the opinion of the court in which the facts are sufficiently stated, that it is entirely dissimilar.

On points referred by the Circuit Court of Butler. The indictment charges that the defendant, with other persons, whose names are particularly mentioned, did, on the 4th of February, 1843, conspire, &c., wickedly, maliciously, &c., to seduce from her virtue one Temperance Buckalow, a young maiden lady; and to assist and enable “John Henry Watts to effect a pretended marriage with the said Temperance Buckalow; and to make John Buckalow and Temperance Buckalow, sen., (father…

<p>1. A scroll around the word seal, opposite to the signature of tlio judge who signs the hill of exceptions, is a sufficient seal.</p> <p>2. In a suit by two as partners, it is admissible for the defendant, uudcr the general issue, to prove that the debt sued for is due to one of them, and not to the plaintiffs jointly. The statute dispensing with proof of the partnership, unless put in issue by plea in abatement, [Clay’s Dig. 324, § 68,] docs net apply when the contract is with an individual, and the suit is by a partnership.</p> <p>b. It is not error to refuse to charge a jury, in a suit for goods, bargained, sold, and delivered, that no recovery can be had unless a delivery is proved, if a contract of sale is proved; for the seller is not bound to deliver until the price is paid, and the common counts are sufficiently broad to permit a recovery on the contract of ale, without proof of delivery also.</p>

<p>1. A promise by a bankrupt “ that ho had boon decreed a bankrupt, but still intended to pay the note — that ho considered it a debt of honor, and though discharged as a bankrupt, he did not inteild to avail himself of that advantage, but had some work engaged, from the proceeds of which he intended to pay the plaintiff,” is not an absolute but a conditional promise, and to recover upon it it is necessary to show that the state Of things existed upon the happening of which the promise to pay depended,</p>

<p>1. The Judge of the county court is not authorised to award a habeas-corpus i& bring before him the body'of a prisoner committed for a felony; but if he does so, and remands the prisoner, because he is unable to give bail, the imprisonment may be referred to the original warrant for his detention, aftd he will be considered legally in custody.</p>

<p>Writ of error to the Circuit Court of Dallas.</p> <p>Action before a justice of the peace by Cave, for the use of Wallace, against Burns, to recover a less sum than fifty dollars. After a judgment for the defendant, the plaintiff appealed to the .circuit court where he filed a statement containing the common counts. The defendant pleaded non-assumpsit, want of consideration, and set-off.</p> <p>At the trial, the plaintiff’s account for fifty dollars, for balance due on a horse swap, was offered to be proved by his own oath; which, on motion of the defendant, the court refused to allow.</p> <p>The defendant offered, under the plea of set-off, a judgment obtained against one Harrison and himself, and offered to prove by parol that said judgment was founded on a note made by said Harrison as principal, and by the defendant and plaintiff as sureties, and that the amount of it had been paid in full by the defendant previous to the commencement of this suit. Also, that Harrison was insolvent when the judgment was rendered. The plaintiff resisted this evidence, and excepted to its admission.</p> <p>The plaintiff then offered to show, that the consideration of the note given by Harrison as principal, and by the plaintiff and defendant as sureties, had failed; but the court refused to allow this evidence; and the plaintifl'excepted.</p> <p>The several matters excepted to are now assigned as error.</p> <p>insisted that plaintiff’s oath was properly rejected. [Clay’s Dig. 342 § 161.]</p> <p>The money paid by the defendant as co-surety, was recoverable of the plaintiff. [Clay’s Digest, 338 § 141.] And the question of consideration could notarise between the sureties. Whether with or without consideration, their relation to each other is the same.</p>

<p>1. When the plaintiff and defendant are the only witnesses in an action upon an account for a sum not exceeding one hundre d dollars, under the statute of 1839, the denial by the defendant, on oath, of the foots sworn to by the plaintiff, deprives the testimony of the latter of all force whatever.</p>

<p>Whit of error to the Circuit Court of Sumter.</p>

Wbit of error to the Circuit Court of Tallapoosa.- Assumpsit by Hill, as the administrator of John C. Webb, suing for the use of Todd, against Starke and others, as the makers of a promissory note.

That Bodo Adams had removed to Mississippi where he now resides; that on application to Adams, he replied, that he had handed all the papers concerning the transaction to Thomas Reid, his agent in Mobile; that on application to Reid, ho denied having it, and stated that he had handed all the papers to one John II.

<p>1. Where recognizors are bound in several sums in one recognizance, and several judgments are rendered against them, they cannot join in the prose, cution of a writ of error; but where a joint writ is sued out by them, it may he amended under the act of 1843 “ to authorize the amendments of writs of error,” by striking out one of their names, and then it will remove the cause as to the other.</p> <p>2. The judgment upon a recognizance should show that the party charged with an offence, was required to answer ihe charge specified therein.</p>

We.it of error to the Circuit Court of Lowndes. A motion was submitted on behalf of Morrison and five other defendants, against whom, together with Marvin, an execution had issued at the suit of Whipple & Howard, for a rule upon the sheriff, to show cause why he should not produce the execution issued on this case, and make his return on the same, according as the facts were.

Assumpsit by the defendants against the plaintiff in error. The action was brought on a written promise by the defendant to the plaintiffs to paj the debt of the defendant’s father.

Writ of error to the Circuit Court of Jefferson. Ttiis was an action of trespass, at the suit of the defendant in error, brought ns well to try t.ties and recover the possession of certain tracts of land s.tuate in the county ol Jefferson, and particularly described in the dedarat.on, as to recover damages tin' their occupancy. The cause was tried on the plea of ‘-not gu.lty,” and a verdict returned for the plaintiff, oil which judgment was-rendered.

<p>Writ of error to the Circuit Court of Barbour.</p> <p>This was a motion made under the statute, by Boggs, before a justice of the peace, against Clark, for having failed to pay over monies collected by him as a justice of the peace. The suit was removed in the circuit court by appeal, and there the facts were submitted for judgment, without the intervention of a jury.</p> <p>The facts were, that Clark, as a justice of the peace, had collected a small sum of money for the plaintiff and refused to pay it over, on account of having been garnisheed to pay it to another person. The plaintiff insisted that Clark was responsible for the sum so collected, with ten per cent, per month damages, from the time of demand made. The court gave judgment for the money collected, with interest upon it, but refused to allow judgment for the penalty, on the ground, that the garnishment was a reasonable excuse for refusing to pay it over. The plaintiff excepted to this refusal of the court to allow the damages; and this is the only error assigned.</p> <p>insisted that the circuit court had no discretion to withhold the damages. Under the statute, [Clay’s Dig. 362,] no discretion is given, and therefore, it was the duty of the court to allow the damages^ as it determined the defendant was in default.</p> <p>argued that no judgment whatever, should have been rendered under the circumstances in proof. A justice of the peace, when money is collected by him, holds it as the mere agent of the party, and is as much liable to garnishee process, as any other agent. [People v. Whaley, 6 Cowen, 661.]</p>

Ehroii to the Circuit Court of Sumter. Assumpsit on a false warranty in the sale of two slaves. Upon the trial, the plaintiff introduced in evidence the following instrument: “Received of John Roberts eight hundred and fifty dollars, in full for two negroes — Caroline, aged twenty-seven, and her daughter Aggy, about nine. I warrant the title good and the property sound. A. W. Pettus.

Writ of error to the County Court of Dallas. This was an action of assumpsit at the suit of the plaintiff in error against the defendants on a promissory note, payable to the president and directors of the Bank of the State of Alabama.— The defendants pleaded, 1.

<p>1. It is discretionary with a court to .permit a garnishee to amend his answer, and that even after an issue has been tried between the plaintiff and one to whom th'e'debt attached is supposed to be transferred. 1</p> <p>0. The answer of a garnisheo-admits the receipt of a sum of money from the debt, or, to be accounted for to him by the garnishee on a final settlement, but in. sists that since the service of garnishee process, he has been compelled to pay larger sums for the debtor, so that on a final settlement, nothing will be due ; this is not such an admission of indebtedness as will authorise a judgment against the garnishee. If the right to set off debts paid subsequently to the ser. yme, could be defeated, it was the plaintiff’s duty to have drawn out the facts •by interrogatories, or by forming an issue to try the question of indebtedness.</p>

Debt by the defendant in error, as assignee of a bond, which reads thus: “For value received, ten days after date I promise to pay Jas. W. Camp, for the benefit of Alfred Turner, five hundred dollars. Witness my hand and seal, this 3d day of November, 1840.” H. B. Turner.” The declaration, in the description of the bond, omits to set out. for whose use it was made, but declares upon it a bond payable to Camp.

Writ of error to the Circuit Court of Chambers. The defendants in error declared against Wm. A. Thornton, Parham M. Thornton and Alexander PI. McDaniel, as partners, trading under the style and firm of Thornton & McDaniel, in as-sumpsit, on two promissory notes, amounting in the aggregate to the sum of nine hundred and seventeen 65-100 dollars. W. A. Thornton denied by plea that the notes in suit were made by him or his authority, and verified his plea by affidavit.

Writ of error to the Circuit Court of Montgomery. Action of debt, in the name of the present Governor, for the use of Harper, on a sheriff’s bond executed by one Bell, and others, as his sureties. The declaration avers a breach of the condition of the bond, by reason of Bell’s false return of nulla bona to a writ oiji.fd. at the suit of Harper against one Hill.

<p>1. A judgment may be pleaded as a set-off, and iflarger in amount than the debt sued for, a finding of the issue in favor of the defendant, wifi extinguish so much of the judgment as-is necessary to satisfy the debt.</p>

<p>Writ of errof to the Circuit Court of Russell.</p> <p>«-insisted, that the levy of the attachment by which this suit was commenced, was insufficient to sustain the judgment against the defendants below; that although, according to the decisions of this court, a levy upon personalpropertywas sufficient, without an express affirmation of the sheriff, that it belonged to the defendant, yet the same principle did not apply to the realty. In the former case, the sheriff would be a trespasser if he seized property of a third person, but in the latter, a levy upon the lands of a stranger would not be followed by such consequences. He cited 3 Monr. Rep. 294; Hardin’s Rep. 44; 8 Dana’s Rep. 67.</p>

<p>Writ of error to the Circuit Court of Dallas.</p> <p>Morrow and Nelson brought their action against Bird, to recover damages'for his having, as judge of the county court, unlawfully discharged from custody, one Parkman, a debtor whom they had caused to be arrested on a writ of ca. sa. The deela-l’ation contains three counts, but the cause of action is substantially the same in all. It is alleged that a judgment was recovered by the plaintiffs against Parkman, in the county court of Dallas; that the affidavit required by law to be made previous to taking out a ca. sa. was made, and a ca. sa. issued, upon which Parkman was arrested, and held in custody by the proper officer; that the defendant issued a writ of hah. cor. by virtue of which, Parkman was brought before him, and was by him, without any lawful right or authority, discharged from custody. By means .whereof the plaintiffs had sustained damage of five hundred dollai’s.</p> <p>The defendant demurred, and the court gave judgment for him on the demurrer.</p> <p>This is is now assigned as error.</p> <p>insisted that the defendant, as judge of the county court, had no jurisdiction to discharge the debtor, and therefore, was liable to this action. [Clay’s Dig. 462, § 2, 3 ; ib. 464, § 16 , ib. 468, § 39 ; 1 Chit. Pk 185; 2 John. Cases, 27; 3 ib. 85; 3 Cranch, 331; 15 John. 152.]</p> <p>insisted the action, if one is maintainable, should be case, and not trespass. [8 Cowen, 178.] But no action whatever will lie, as the discharge was the exercise of a judicial power. The judge has the authority to inquire, if the detention be illegal, and this involves every matter which can arise before him. [Clay’s Dig. 462, § 1,2, 3; 9 John. 423.]</p>

<p>.1. The design of the act of the'5th February, 1840, which requires a summons to issue to the assigneeor transferee ofa^debt when the garnishee has disclosed by his answer that such is the fact, was to enable the plaintiff in attachment to contest the validity of the alleged transferí In such a case the proper course is for the plaintiff to alledge the invalidity of the transfer to which the assignee would be required to answer, and thus an issue would be made, to be tried either by the court or jury, as might be proper.</p> <p>2. When the record-does not disclose that upon the appearance of the assignee the plaintiff made an allegation against him, anorder discharging the assignee, will be upheld, as it must be presumed that the plaintiff abandoned the pursuit of the garnishment.</p>

<p>1.. A bond executed by the name of Jas. W.-willbe admitted under a declaration which states the obligor’s name to be James W. ; the latter will be intended to be the true name, and the former a mere contraction of it.</p> <p>2. Semble: Where a sheriff collects the amount of an execution, by receiving property, or in some other irregular manner, and accepts it as a satisfaction from the defendant, if the plaintiff elect so to consider it, the sheriff cannot object, in an action on his bond,.that the execution was not paid with the money.</p> <p>3. In an action on a sheriff’s bond, one of the breaches, that the sheriff had before the return day of theji. fa. settled the same with the defendant therein, discharged him from its payment, and thus made himself liable, &c.: Held, that the generality of the breach was such, as to admit evidence to show that the act by which the execution was satisfied, was a conversion of the money to the sheriff’s use; if such were the case, no demand need have preceded the institution of the suit, and the sheriff would be chargeable with interest from the lime of the conversion, on the amount (saving the cost,) then due on the exe* cution.</p>

Writ of error to the Circuit Court of Pickens. Action of debt by Robinson, for the use of McEwin against Curry and Haynee, as joint obligors, by a certain single bill.— The declaration contains two counts, in neither of which is there any profert in curia of the bill; but as an excuse therefor, there is an averment in the first count, that the defendants wrongfully and illegally obtained possession of the bill from the hands of one Maupin, then and there acting as attorney…

<p>1. An objection to the revival of a suit in the name of an administrator, can not he made in this court, if not raised in the court below.</p> <p>¡2. A mistake of the clerk in stating the parties in the minutes of the judgment entry, is a clerical misprision, amended by other parts of the record.</p> <p>3: The reading to the jury of an affidavit of the loss of an instrument, and its contents, will not prejudice the party on error, though irregular, if the witness gave oral testimony also to the jury, of the contents of the paper.</p>

On points referred by the^ Circuit Court of Mobile. The indictment charges that the defendant on the seventeenth of February, 1844, at, &c. “sundry pieces of silver coin, made current by law, usage and custom, within the State of Alabama, amounting together to the sum of five hundred and thirty dollars and fifteen cents, and of the value of five hundred and thirty dollars and fifteen cents, of the monies, goods and chattels of Thomas A. Morgan, before then feloniously…

Weit of error to the County Court of Dallas. Assumpsit by three persons, describing themselves in the declaration as partners using the name of Desha, Sheppard & Co., as endorsees of a bill of exchange drawn by Stewart, in favor of one Harrison, on certain persons as Desha, Sheppard & Co.— There is no averment in the declaration that the plaintiffs are the same firm on which the bill is drawn, and there are counts upon it as dishonored for non-acceptance and non-payment.

<p>1. To constitute the offence of larceny, by entering into and stealing from a dwelling house, outhouse, &e. there must be an entry against the consent of the owner, unless the crime be meditated at the time of a permissive entry.</p>

Wext of error to the Circuit Court of Perry. This was a proceeding, by notice and motion, under the statute of 1819, at the suit of the plaintiff’ in error against Chandler, as sheriff of Perry, and his sureties, for the failure to return a writ of fieri facias, which issued from the circuit court of that county in favor of the plaintiff, and was placed in his hands to be returned (according to its mandate) three days before the sixth Monday after the fourth Monday in March,…

WRIT of error to the County Court of Sumter. This suit was commenced by process of garnishment, sued out after judgment, by Kelly (suing for the use of Hair) against one Christian and Covington & Reavis, requiring them to answer what they were indebted to Pollard (the defendant to Kelly’s judgment) the surviving partner of a mercantile firm, composed of himself and one Carr.

EeROR to the Circuit Court of Dallas. Novel and difficult questions. The defendants were indicted for living together in adultery and fornication.

Writ of error to the Circuit Court of Marengo. This was an action of assumpsit by the plaintiffin error, against the defendant. The declaration, so far as it is necessary to notice it, alleges that J. B. Wilkins, on the 31st of May, 1834, made his promissory note for the sum of seven hundred and ninety-one dollars and ninety cents, payable on the first day of January next thereafter, to James A. Torbert or order, at the Branch of the Bank of the State of Alabama at Mobile.

<p>11. A report by the administrator, that the estate represented by him is insolvent, is necessary lo give the comity court jurisdiction to decree against him in fa-for of creditors: and a report of insolvency made by a previous administrator, has no effect on on a subsequent administrator, de bonis non.</p>

<p>1. The right of a freeholder to be sued in the county of his residence, isaperso-na! privilege, and cannot be pleaded by any other party to ilie suit ; therefore, a joint plea by two defendants, one of whom is liable to the suit, is bad.</p> <p>Ü. Umifdowor is assigned (o the widow, she lias no estate in the lands of her hue-band, hot a mere right to occupy the mansion house, out houses, &c. until dower is as>igned her.</p> <p>3. Whether an estate in dower would entitle the second husband to an exemption from suit, out of the county of Ids residence, Qufre?</p> <p>4. A joint judgment against two defendants, one upon verdict, and the other by nil dicit, is regular.</p>

<p>1. One joint maker of a promissory note cannot be called as a witness for the other wilb whom he issued, although he makes no defence to the suit; fora verdict in favor of his co-defendants, would operate a discontinuance of the ac. tion, and even vacate the judgment if one had been rendered against him.</p> <p>2. A plea which denies that Uvo of the defendants made and delivered a promissory note with others, whose names appear as joint makers, need not be verified. Such a plea, if true, does not disclose matter which is available as a de-fence.</p>

<p>1. Evidence of what was said in certain conversations between a defendant in execution and one who afterwards, during the same day, purchased a slave sold by the sheriff, is admissible, when the object is to show that the purchase was made on account of the defendant.</p>

<p>ERROR to the Circuit Court of Cherokee.</p> <p>The action was by the defendants against the plaintiff in error 'for a libel.</p> <p>The first count of the declaration charges, that the plaintiffs were tavern keepers in the town of Jefferson, and liberally patronized as such, and that the libel was published to injure their •good character, &c., and to cause persons who patronized their ■tavern to withdraw their patronage, &c., the deiendant himself being a tavern keeper in the same town; that “he published of and •concerning Sarah Hoss, wife of said Jacob, a certain false, scandalous and defamatory libel, containing among other things too vulgar and obscene to be mentioned, the false, scandalous, malicious and defamatory matter following, of and concerning the •said Sarah:</p> <p>C “She, (meaning the said Sarah), I am told, visits Mrs. Bur/nett’s, alias Haden — decent company for decent folks, if, but as some folks say, they soot very well. I (meaning the defendant) think so — such lady ought to establish a hore house. They •(meaning Mrs. Burnett and the said Sarah Hoss) would make good street hores. Oh, delightful woman!” * * *</p> <p>The second count, omitting the statement of an intention to ■•..injure the plaintiffs as tavern keepers, charges the libel thus: “To the public, and more especially the ladys, know, as it is well known, that Mrs. Hoss (meaning the plaintiff Sarah) is getting along in the world; as concerns talking about her neighbors, and more especially those she should not, for whenever sutch folks getting to spinning street yarn, they should look at home first, and see if they have all things clean in the first place. I (meaning the writer) do not like to hear of ladys who wish to be fine and decent in this place — they should not befriend such a man as J S. Burnett, who has taken other men’s wives. I understand she (meaning the plaintiff Sarah) says he (meaning, the said J. S., Burnett) has done write. It is very likely he has done well, but married folks should not hold up for them.” * * *</p> <p>After re-stating the libellous matter in the first count, it proceeds: “If the old horse (meaning the plaintiff, who .was then abr sent from home,) does not come home soon, they (meaning the said Sarah and others) will have to crisen that little J. S. Burnett, (meaning and insinuating thereby, that the child of the said Sarah, then lately born, was illegitimate, and was the child of the said John S. Burnett.) * # * * In the first place, ladys should keep their tongues, then down. with, their petticoats, and pin them down; but she (meaning the plañir tiff Sarah) lets hers fly up. * * * * *</p> <p>I had a notion of establishing a printing office here; but it would be useless, for aunt T. and filly horse (meaning by aunt T., Mrs. Tennessee Leach, the sister of plaintiff Sarah, and by filly horse, the plaintiff Sarah,) would take all the bizness, and it would be a bad bizness for me. * * * * * *</p> <p>Now, young ladys, you had better leave off going there; for if you do not, you will get a bad name, and then as to marrying, it will be a bad chance,” (meaning that young ladies should desist from visiting the tavern house, and residence of the plaintiffs, for fear of losing their reputation,) &c. &c.</p> <p>The defendants demurred to the declaration, and the court overruled the demurrer.</p> <p>Upon the trial, under the general issue, it appears from the bill of exceptions, that the plaintiffs proved the loss of the original libel; and then proved three copies of it; each of which was proved to be a substantial copy of the original libel; and all of which differed from each other in some respects, and offered -the said copies in evidence. To the introduction of each of said copies in evidence, the defendant objected. The objections were overruled, and all of said copies read to the jury; and defendant excepted.</p> <p>The court charged the jury, that if they were satisfied from the proof, that either of the copies of the libel offered in evidence, was substantially a copy of the original libel, and that it was either composed, or published, by defendant, they ought to find for the plaintiffs; to which the defendant excepted.</p> <p>The assignments of error bring to view the sufficiency of the declaration, and the propriety of the charge of the court, and the sufficiency of the evidence.</p> <p>The words charged do not amount to a libel; they may show an intent to calumniate Mrs. Hoss, but are not libellous. No charge is fixed upon Sarah Hoss. “Mrs. Hoss” does not necessarily mean Sarah Hoss. [16 Wendell, 16, 19; 6 Am. Com. L. C. 432.]</p> <p>That which is termed a libel in this case, does not necessarily impute one to th'e plaintiff, unless connected with other facts by way of inducement, which is not done in this case. [13,Eng. C. L. 128.]</p> <p>The innuendo s in this case, do not merely explain the meaning of the alleged libel: they add to it, and are unaided by the proper averments in the declaration, and are, therefore, bad. [5 Johns. 211,431, 9; 8 East, 427; 1 Chitty’s PL 383.]</p> <p>A cause-of action is stated in the declaration, for which the husband alone ought to sue. [2 Com. Dig. 248; 18 Johns- 443; 1 Chitty’s PL 63, 49,50, and note; 2 Saunders’ P. & Ev. 568.]</p> <p>The words of the libel should have been stated on the record: it is not sufficient to set out its substance. The term, “matter,” employed in the declaration, is not synonymous with words. [1 Raymond, 414; 1 S. & L. 347; 6 Term, 162; 4 Ala. 44.] The whole of the libel should have been set out, and not a part only.</p> <p>The verdict and judgment being general, if either count is bad, the judgment will be reversed on error, although a general demurrer will not be sustained to both counts. The plaintiff should have taken his judgment- on the good count</p> <p>cited 5 Modern, 163; 2 Salk. 41’7; 3 Littell, 389; 1 Binney, 393; 2 Carr. &P. 46.]</p>

<p>WRIT of error to the Circuit Court of Sumter.-</p> <p>This was an actioS of assumpsit, at the suit of the plaintiffs in error against the defendants.</p> <p>The declaration contains seven counts,- the third of which is in the following words: “Also, for that said William Lee, in his , lifetime, at Livingston, in said county, to wit: on the 26th day of June, A. D. 1837, as one of the firm of Abrahams, Lee & Co. which firm had before that time consisted of the said William Lee and others, and was then continued for the purposes of liquidation of the debts and demands of said firm, but had been otherwise and for other purposes dissolved, in and by the promissory note of said firm of Abrahams, Lee & Co. then and there made and given, for a debt of said firm of Abrahams, Lee & Co. then, and. before that time due to said plaintiffs, promised said plaintiffs to pay them, or order, at the Planters’ and Merchants’ Bank of Mobile, where said note was negotiable, on the first day of March then next, the other sum of thirty-six hundred and twenty-three dollars and eighteen cents, for value received. The defendants demurred to this count, pleaded non-assumpsit, and payment to the others; and further, that the supposed promissory notes, in the plaintiffs’declaration mentioned, were never executed or delivered by their intestate, but that James A. Abra-hams, of the firm of Abrahams, Lee & Co. executed these notes after the dissolution of the firm, and without the knowledge, consent or authority of the intestate, who has since deceased. This plea was duly verified by oath. The demurrer was sustained, and a verdict returned for the defendant on the pleas; on all which a judgment was rendered against ihe plaintiffs.</p>

<p>Wb.it of error to the Circuit Court of Dallas.</p> <p>Assumpsit by Morgan against Taylor, as the maker of a promissory note. The defendant pleaded non-assumpsit, payment and set-off; and at the trial under the latter issue, offered in evidence a note, purporting to be made by the plaintiff, and witnessed by one Taylor. The plaintiff objected to the note, that its execution should be proved by the subscribing witness, and the court having sustained the objection and rejected the note, the defendant excepted. This is now assigned as error.</p> <p>cited Cass v. Northrop, [1 S. & P. 89,] and Carew v. Northrop, [5 Ala. Rep. 267.]</p>

EiutoR to the.Circuit Court of Talladega. Trespass vi et armis, for taking and carrying away two slaves.

<p>1. The Circuit Court may take jurisdiction by certiorari, of a case in which the intendant of a corporate town has rendered a judgment against a person resident within rile same, for the violation of one of its by-laws.</p> <p>2. An act incorporating a town, authorised the enactment of by-laws “ to re" strain and prohibit every species of gambling, drunkenness, &c.; to grant li-cences to the retailers of spirits and liquors; to regulate and restrain them when deemed a nuisance;” and to pass all such by-laws consistent with the constitution and laws of this State, as may be necessary, &c. Under this grant of power, the corporation passed an ordinance prohibiting the retailing of spirituous or fermented liquors within the corporate limits, without first paying to its treasurer the sum of one thousand dollars for a license for one year; and for retailing without such licence, a penalty of ten dollars a day was imposed, and made recoverable by warrant before the intendant, &c.: Held,, that this bylaw was authorized by the act of incorporation.</p>

<p>Whit of error to the Circuit Court of Sumter.</p> <p>Assumpsit by Lacy as the surviving partner of one Bates, against Le Bruce ajid Prince, also the surviving partners of the .same Bates, but in a different firm. The note declared on, is made by the firm of S. Bates & Co. and is payable to the steamer Favorite.</p> <p>At the trial, it was in evidence that Lacy and Bates wei’e the owners of the steamer Favorite, and were intended by that designation in the note; also, that Bates was dead. The defendants proved that Bates was a member of the firm by which the note was made.</p> <p>On this state of proof, the court instructed the jury, that if Bates was a member of the firm designated by the steamer Favorite, the payees of the note, and was also a member of the firm making the note, then the plaintiff could not sustain this action.</p> <p>The plaintiff excepted to this charge, and it is now assigned as error.</p> <p>insisted that the rule, which would have prevented a suit on this note, in the lifetime of Bates, is technical, and applicable solely to the remedy; and whenever the legal obstacle is removed by his death, his survivor in the one firm could properly maintain the action against the survivors of the other firm. There is no such relation between the survivors as requires them to go into equity; nor could they do so. As illustrative of the rule, he cited Clay’s Digest, 323, § 63; 1 Chitty’s Plead. 12; 3 Term, 433; 5 ib. 493; 6 ib. 582; Smith v. Strader, 9 Porter, 446; Hazelhurst v. Pope, 2,S. &P. 259; Smith v. Lasher, 5 Cowen, 688; Pitcher v. Burrows, 17 Pick. 361.</p> <p>cited and relied on Tindal v. Bright, Minor, 103; Mainwaring v. Newman, 2 B. ’& P. 120; Moffat v. Milligan, 2 ib. 124.</p>

<p>1. An account filed against an insolvent estate, is not, under Hie statute, previous to the passage of the act of 1843, sufficiently proved, by an affidavit of its correctness, made at the time it is filed, but if objected to, it must be proved according to the course of the common law.</p>

<p>1. The notice issued at the suit of a Bank requiring its debtor to answer to an allegation of indebtedness, is process to bring the latter into court; but after the motion for judgment, has been submitted, it may be regarded as a motion in writing, identifying the debt, to which the defendant may either demur or plead to issue.</p> <p>2. Where a notice of a motion for judgment in favor of a Bank states the time when the note was discounted, so as to show that it was before it bears date, this statement, as it is unnecessary, maybe treated as surplusage.</p> <p>3. A notice at the suit of-a Bank need not be dated, unless the date is made material by a reforence to it, as indicating the time when the motion will be made, &e.; and although the indorsement of its receipt by the sheriff shows that the notice was placed in his hands before the maturity of the debt, yet if it is not served until after the debt is due, no objection can be made to this defect in the notice.</p> <p>4. A defendant cannot object on demurrer that he is not regularly before tho court; if such an objectio|»be available, he must plead in abatement.</p> <p>5. The plea of non assumpsit to a notice of a motion for judgment at the suit of the Bank, throws upon the plaintiff the onus of proving the material facts stated in tho notice ; and if the note sought to he recovered is 'misdescribed as to the time of its maturity, the variance will be fatal to the motion.</p>