Volume 6 — Porter's Alabama Reports (1834–1839)

The defendant in error, guardian of George H. Stro-ther, presented his application to the County court of Wilcox county, praying that a citation might issue to Robert H. Gregg, one of the plaintiffs in error, executor of the last will and testament of Lucy Strother, dec’d, requiring him to shew cause, on a day certain, why an order should not be made, making an appropriation to said defendant in error, guardian of the said' George H. Strother, for raising said George H.…

The bill in this case, was filed to spring term, eighteen hundred and thirty-six, of Lowndes Circuit court, and stated — That on the 27th day of January, in the year eighteen hundred and thirty-four, complainant made his promissory note for the sum of one hundred and seven dollars and forty cents, payable on or before the first day of January, eighteen hundred and thirty-five, to William N. Mock, or bearer, for value received: — That before the said note became due, and…

Assumpsit, by a surviving partner for goods, wares, and merchandise, sold and delivered to the- defendant, by the co-partnership.

Debt on bond. This was an action of debt, founded upon a writing obligatory, made by William Me-* Broom, as sheriff of the county of Madison, in the State of Alabama, in his life-time, (who has since died, and whose present administrators de bonis non, Richard B. Purdom and Thomas McBroom, were not sued,) and the defendants, on the fourth day of November, eighteen hundred and twenty-two, — by which said writing obligatory, the said William Mc-Broom, and the said defendants,…

Error from Dallas Circuit court. This action was commenced by notice, as follows j State of Alabama, Dallas County — ss.

Error from the Circuit court of Dallas. Action on the case. Held: had lost their lien, in consequence of the levy by the constable.

This was a petition for revoking letters of guardianship. The petition stated that Polly T. Nixon was the mother of a female infant child named Martha T. Augustin, being the child of a former husband, Thomas J. Augustin, deceased : That the child was a minor, under the age of fourteen years, and entitled, as one of the heirs of Samuel Augustin, to a distributive share of his estate : That the child had resided with her mother from the time of her birth, and now resided with…

Trespass to try titles. At the March term of. the aforesaid court, the defendant in error declared against the plaintiff, of a plea of trespass vi et armis, to try titles, &c., for that the defendant, theretofore, to wit, on the twenty-second day of December, eighteen hundred and thirty-five, broke and entered the close of plaintiff, situate, lying and being in the county aforesaid, and known and described as follows, to wit; The East half of the North-east quarter of…

Case, for words spoken. Bradley Dear complained of Jonathan Kennedy, that, whereas the said plaintiff was a good, true, honest, just and faithful citizen, and as such, had always behaved and conducted, and until the committing, &c., was always reputed, esteemed and accepted as a person of good name, fame and credit, and had never been guilty, or suspected to have been guilty of perjury or any other such crime.

Proceedings in forcible entry and detainer, before a justice of the peace.

Trespass to try titles, and for damages by an administrator. Held: in the case of Cham-berlin vs Williamson, that an executor can not have an action, for a breach of promise of marriage to the deceased, where no special damage to the personal estate can be stated on the record. — 2 Maulé & Sel. 208; 1 Wms. on Ex. 516. But if special damage can be shewn, then the action can be sustained.

In this case, the parties having appeared before the justice, on the investigation of the case, the defendants not being able to resist successfully the entire claim of the ¡plaintiffs, judgment was rendered against them for twenty dollars, and the costs. Defendants, being dissatisfied with the judgment, prayed an appeal to the next Circuit court, which was granted.

Action on the case against defendant, as a common carrier. At the Spring term of the said court, eighteen hundred and thirty-two, plaintiffs declared against defendant, for that, whereas said defendant, on a certain day, theretofore, was the owner of a steam boat, generally known and called as the Mobile, then and at that time, running and navigating the Alabama river, for the transportation of passengers, goods, wares and merchandize, cotton, and other articles of freight,…

_ ' _ At the April term of tlie Circuit court of Tuska-loosa county, eighteen hundred and thirty-six, Edward Sims and David Scott, merchants and co-partners, complained of… Held: in the English courts, that where it prima facie appeared that the consignor was the owner, the freight was to be paid by him; and that where there was a privity of contract between the consignor and the freighter, then the rule had always n been to require the action in the name of the consign- or.

Assumpsit in the Circuit Court of Mobile' county,on a note of the following tenor, to wit: “ $5,162 50. — Ninety days after date, we,- George' Fisher as principal, and Robert G. Haden and John F. Everett, as securities, do jointly and severally pro-1 mise to pay, to the President, Directors and Company of the Tombeckbee Bank, the sum of five thou-’ sand one hundred and sixty-two negotiable and payable at the said for value received. — As witness,\ur hands, this 10th day pf…

In the Orphan’s Court of Wilcox county, in vacation, on the eighth day of August, eighteen hundred and twenty-seven, upon the application of Lucy Mi Howell, widow of William H. Howell, deceased, for letters of administration, with the will annexed, on the estate of Caleb Howell deceased, it was made to appear to the court, by the will of said Caleb Howell, deceased, that William H. Howell, the deceased husband of said Lucy M., was appointed sole executor of said will; and it…

Writ of error to the Circuit court of Wilcox. At a term of the Commissioners’ court, began and ’held for the county of Wilcox, at the court-house thereof, on the first Monday in February, eighteen hundred and thirty-six, the petition of sundry citizens of said county was received, praying for the opening of a publie road from the court-house in said county, to the Alabama river, at Hill’s Bluff, on the land of the plaintiff in error; which said petition having been heard, an…

Error from the Circuit court of Mobile county. Action of covenant.

At the June term of the Orphans’ court of Wilcox County, eighteen hundred and thirty-six, upon the ap,-plication of Allen Etheridge, one of the heirs of the estate of Absalom Jones, deceased, a notice was issued to John Jones,.administrator of the estate of said decedent, to appear at the next term of the said court,- and make settlement of his administration of said estate.

Trespass to try title. At the March term of the • «Circuit court of said county, eighteen hundred and thirty-four, David Campbell, Eliza Campbell, Emily Fountain, children of Archibald Campbell, deceased, Robert Fountain, (husband of said Emily,) also Archibald Campbell, Maria Campbell and Mary Campbell, likewise children and heirs of Archibald Campbell, who had departed this life, intestate, declared against Sol.- Smith, Bushrod W. Bell, and Justus Wyman, in custody, &c. —…

Trespass to try title. At the March term of the Circuit court of Montgomery county, in the year eighteen hundred and thirty-four, David Campbell, Eliza Campbell, Robert Fountain and Emily, his wife, the said David, Eliza and Emily, being children of Archibald Campbell, deceased; also, Archibald Campbell, Maria Campbell,, and Mary Campbell, who are likewise children of Archibald Campbell, who had departed this life before the commencement of this suit, — the three last named…

Trespass to try title. At the March term, eighteen hundred and thirty-five, of said court, David Campbell, Eliza Campbell, Emily Fountain, and Robert Fountain, her husband, — -also, Archibald Campbell, Maria Campbell, and Mary Campbell, who sued by their next friend, David Campbell, being infants, under the age of twenty-one years, declared against .Edward W. Couch and Tod Robinson, — -for that, the plaintiffs, on the first day of December, Anno Domini, eighteen hundred and’…

Bill in Chancery. Richard Trotter, adm’r, with the will annexed, of all and singular, the goods and chattels, rights and credits, which were of William Butler, late of the said county, deceased, at the Spring term of the said court, eighteen hundred and thirty-seven, filed-his bill, stating, that said William Butler, deceased, did, on the twenty-ninth day of August, eighteen hundred and thirty-two, sign, seal, publish and de-: clare, his last will and testament, by which he…

Action on the case against defendant, as a common carrier. At the Spring term of the Circuit coui't of Autauga County, eighteen hundred and thirty-two, Henry D. Miller declared against John Ezell, for that, whereas, defendant, on a certain day, in the county aforesaid, was possessed of a certain steam-boat, which he employed in conveying and transporting goods, wares, merchandise and passengers, from different prots, situate uponacertain public high-way, called the Alabama…

Action on the case, against defendant, as a common,carrier. Thomas M. English, the plaintiff, who sued for the use- and benefit of.

Action on the case. Plaintiffs at the September term, eighteen hundred and thirty four, of said court, declared against the defendant, for that whereas the said defendant, whilst Louisa, one of the plaintiffs, was sole and unmarried, to wit, on the first day of January, eighteen hundred and thirty three, at said county, was indebted to said Louisa in the sum of twelve hundred dollars, for money before that time had and received, by the said defendant for her use, and being…

At the present term of the Supreme court, the death of the plaintiff below was suggested, by his administrator the plaintiff in error, and the court moved for process to bring the case into this court for the revision of the judgment below. Upon which motion, the court delivered the following opinion.

Scire facias upon, a forfeited recognizance. Held: the said John Shields, in and upon the body of the said John Shields, a little below the navel of him the said John Shields, and on the right arm and left hip of him the said John Shields, then and there feloniously, &c. did strike, stab and cut, with intent in so doing, wilfully and of his malice aforethought, to kill and murder the…

Action on the case. At the spring term of the court aforesaid, eighteen hundred and thirty-five, Joseph Chapman, the plaintiff, declared against Shadrach Martin, the defendant, that on a certain day, in said county, articles of agreement were made and entered into, between plaintiff on the one part, and defendant on the other, by which plaintiff agreed on his part, to attend to defendant’s business in the capacity of an overseer, to work, when necessary, at light work, such…

.Assumpsit on a promissory note. On the twenty-third day of March, eighteen hundred and thirty-five, Samuel Bulllard issued his writ against Charles Wheeler, Jordan Wheeler and Thomas Wheeler, surviving copartners of Charles Wheeler & Co. in a plea of trespass on the case. &c. returnable to the spring term of the court aforesaid. The cause of action endorsed on the writ was the following note: ‘•$322 41. Montgomery, Jan’y 20th 1834.

Assumpsit on promises implied. Plaintiff below •declared aghast tire defendant, at the spring term eighteen hundred and thirty-seven of said court, for that whereas said defendant, theretofore, to wit, on a certain day, was indebted to said plaintiff in a large sum of money, by plaintiff, before that time, lent, advanced and paid, laid out and expended, for the said defendant, zt his special instance and request, and that being so indebted, i:i consideration thereof,…

Proceedings by attachment. In this case, a writ of attachment, from a justice' of the peace, issued against George Cater, in favor of Chapman & Brother, at the instance, and on the oath of Joseph Chapman, one of the firm of Chapman & Brother; and summons of garnishment was served on Joseph Smith, the plaintiff in error, in which summons, the plaintiff in the attachment.'was described as Joseph Chapman : And at the Fall term, eighteen hundred and thirty six, of the Circuit…

At the spring term, eighteen hundred and thirty-seven of the said court, the grand jurors for the county, upon their oaths, presented, that on the sixth day of February, in the year of our Lord eighteen hundred and thirty-seven, there was, and from that time hitherto Had been, and still was, to wit, in said county, a certain public road of the first grade, called and known as the Cahavvba and Pensacola State road; and the jurors aforesaid, upon their oaths presented, that…

Error' to the Circuit court of Chambers county. Trespass to try titles.

Assumpsit on- a promissory note, negotiable at bank. At the September term of the said court, eighteen hundred and thirty-three, the plaintiff complained of defendant, that theretofore, at a certain ]olace mentioned, on the-fourteenth day of March, A. D. eighteen hundred and twenty-seven, defendant made his certain promissory note, in writing, bearing date* &c. and thereby then and there promised to pay, on the tenth day of January next succeeding the date thereof, to the…

In this case, Thomas Morong, one of, the plaintiffs below, having departed this life, since the determination of the suit below, his survivors sued out the present writ of error, stating therein, the death of said Thomas Mo-rong : A motion was now made, by defendant, to dismiss the said writ. Whereupon the court delivered the following opinion, on said motion.

Debt, on administration bond. At the kpring term, eighteen hundred and thirty-seven of said court, John C. Thomson, judge of the County court of the county aforesaid, who succeeded Camuel Chapman, former judge of said court, and who sued for the use of John Thurman, — declared against Jesse Searcy and Thomas Fearn, for that, the said Jesse Searcy, theretofore, to wit, on the twelfth day of February, eighteen hundred and twenty-two, in said county, was duly appointed…

Bill to foreclose a mortgage. Benjamin Levins, surviving partner of the firm of Charles Irby and Company, on the twenty-second day of August, eighteen hundred and thirty six, filed his bill of complaint, in the Circuit court of said county, exercising chancery jurisdiction, against Stephen Brown and Thomas Brown, of the county aforesaid, defendants,-to foreclose a mortgage, executed by said defendants, to Charles Irby and Benjamin Levins, of the city of Mobile, on the third…

Plaintiff declared against defendant, at the Spring term of the court aforesaid, eighteen hundred and thirty-six, of a plea of trespass on the cáse, &c. for that whereas theretofore, to wit, oil the-day of December, eighteen, hundred and thirty-four, in the county aforesaid, John. Banks, William F..

. Trespass, upon a sheriff’s deed, to try title. Plaintiff below declared against defendants, at the March term, eighteen hundred and thirty-six of said court: for that theretofore, he said plaintiff was possessed of a certain close, to wit, part of lots numbers two and nine, in square fifteen, in the town of Montgomery, being the north-west part of said lots, containing a certain'number of feet in front, on the court house square, and extending back to Washington street,…

In this case, it appeared by the record, that at the September term of the Circuit court of Dallas county, eighteen hundred and thirty-three, James )$.

<p>1. A judgment by default, without a declaration, is bad on error, — nevertheless, if the only objection shewn by the record, is the want of a declaration, the cause will be remanded, that the plaintiff may obtain leave to perfect the pleadings, and a trial be had upon the merits.</p> <p>o. Under the attachment laws, a plaintiff must shew that the defendant is indebted to him in a sum of money past due, or else in a sum of money to be paid at a future timé.* Therefore, where a writ of attachment states that plaintiff is security to a draft drawn on T. and L. for defendant, which he will probably have to pay, or on which suit will have to be brought in another state, — it cannot be sustained.</p>

The plaintiff, Johnson, complained of defendant, Thrash, in a plea of trespass quare clausum fregit — for that defendant, on the day mentioned, and on divers other days and times, between that day and the day of the commencement of the action, with force and arms, &c. at to wit, in the county aforesaid, broke and entered the close of said plaintiff, lying and being in the county aforesaid, and being a certain piece, parcel or allotment of land, to wit, the south east quarter…

Proceedings under the “act to amepd an act entitled an act to encourage the building of public mills, and directing the duties of millers,” — approved December the fourteenth, eighteen hundred and twelve.

Bill to charge an executor for a legacy alleged to have been improvidently paid. On the first day of’ March, eighteen hundred and thirty-four, James McCullough, of the county aforesaid, administrator, Ae bonis non, of the estate of Benjamin Franklin Spencer, deceased, who died intestate, in ■ said county, on the first day of February, eighteen hundred and thirty, came, and filed his bill against Nancy Gr.