Volume 7 — Alabama Reports

Writ of error to the County Court of Sumter County. On the 28th of October, 1839, Lock Boyett made application to the Judge of the County Court of Sumter, for probate of the last will and testament of Robert Boyett, deceased: whether this application was oral or written does not appear, but a paper is set out in the transcript in these terms : “ On Sunday, the 21st day of July, 1839, 1 was sent for by my brother, Robert Boyett, who was extremely low at the time with fever:…

<p>^ Error to the County Court of Marengo.</p> <p>Assumpsit on promissory note.</p> <p>The defendant pleaded, that subsequent to the making of the promises in the plaintiff’s declaration, he obtained a certificate in bankruptcy from the District Court of the United States for New Hampshire. Accompanying the plea, is a certified copy of the proceedings in bankruptcy.</p> <p>The plaintiff demurred to the plea, which being overruled, he replied, “ That the certificate and discharge therein alledged, if granted at all, was fraudulently obtained by said Stiles — ill this, that the said Stiles did not reside nor have his place of business in the State of New Hampshire, when said discharge and certificate were granted, at the time of filing his petition for said discharge, nor at any other time since, but that he then did and still does reside and do business in the State of Alabama. That the application for discharge was voluntary, and before applying for said discharge, and in contemplation of bankruptcy he made conveyances of a portion of his effects for the purpose of preferring some of his creditors over others. That the said Stiles did not render up all his property, rights .and credits, as is required by law in such cases, but knowingly withheld more than said law allows, and, for not giving said Lacy notice of his application ; and this,” &c.</p> <p>The defendant demurred to this replication and the Court overruled the demurrer. And thereupon, on issue joined, the jury found a verdict for the plaintiff, and the Court rendered judgment from which this writ is prosecuted. The defendant assigns for error the judgment of the Court on the demurrer. r '</p>

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, on a promissory note, dated Mobile, 11th June, 1S36, and subscribed thus, “Dunning & Knapp, per H. Dunping,” by which they promised six months after date, “ to pay Wm.

<p>When the person for whose use a suit is instituted dies pending the suit, it is not necessary that his personal representatives should be made parties, but the suit proceeds in the name of the nominal plaintiff.</p>

<p>1. An aot of the Legislature authorizing a married woman to act and dispose of all property subsequently acquired by her, by her own exertions, or from other persons, as a feme sole, with a saving as to existing creditors, will not have a retrospective effect, so as to deprive the husband or liis creditors of the benefit of any property which previously belonged to the wife.</p> <p>S. Previous to marriage a deed was executed conveying to a trustee a slave, and securing to the female a life interest therein, with remainder to others. The trustee delivered the slave to the female, who either before or after such delivery married. Held — that the life estate was subject to sale, under execution, by the creditors of the husband, notwithstanding the act previously cited ; and that it was unimportant whether the possession was delivered before or after the pas. sage of this act.</p> <p>3. Whether the sale would affect the right of survivorship, quere?</p>

Writ of error to tfae County Court of Perry. This was an action of assumpsit, at the suit of the defendant in error against the plaintiff. The first count is on a promissory note, dated the 16th of September, 1842, for the payment of one hundred and fifty dollars, on the first day of January ■thereafter, -to -the plaintiff, in Alabama money. To this the common counts are added.

Writ of error to the County Court of Sumter County. This proceeding is a suggestion by Hopkins, that Gary, as the Sheriff of Sumter, could, by the use of due diligence, have made the money on an execution placed in his hands for collection. In order fully to understand the questions raised in this Court, it is necessary to state at length the proceedings in the Court below.

<p>I. The debtor of a corporation may he garnisheed by a creditor of the corporation undor the general law of garnishment; but no proceeding can he had under the act of 1841, to subject the debts of stockholders for stock due the company, on process of garnishment, issuing previous to the passage of that act.</p>

Writ of error to the Circuit Court of Perry. This was a proceeding under the statute for the trial of the right of property.

Writ of error to the Circuit Court of Mobile. Ok the 18th of April, 1842, the defendant in error exhibited his libel in nature of a proceeding in admiralty, before a justice of the peace of Mobile, praying that process might issue according to the statute of the 10th of December, 1841, againt the steamboat Caroline, her tackle, apparel and furniture, and that all persons having, or pretending to have any right, title, or interest to the same, may be summoned, &c. The ground…

<p>Error to the Circuit Court of Talladega.</p> <p>Tkespass to try title to a tract of land. The plaintiff claimed as a purchaser at an execution sale, upon a judgment against David Conner, rendered 11th May, 1S38. The sale was made the 3d August, 1840. He produced the sheriff’s deed and proved possession in the defendant to the judgment at the time of its rendition.</p> <p>The defendant .relied on a conveyance to him of the land, by David Conner, executed the Sth January, 1839, and possession. It was also proved that the defendant Conner, prosecuted a writ of error to the Supreme Court, on the 29th September, 183S, and gave bond and security to supersede the execution, and that the judgment was affirmed against Conner and his sureties, in the Supreme Court, on the 6th February, 1839. The facts being agreed, the Court rendered judgment for the defendant, from which this writ is prosecuted.</p> <p>contended that the sheriff’s deed was conclusive, and could not be collaterally impeached. That notwithstanding the execution under which the land •was sold, was sued out upon the judgment of the Circuit Court, after its affirmance in the Supreme Court, that the execution was not void, but voidable only. He cited 2 Abu Rep. 734; 4 lb. 9, 19, 321 ; 5 lb. 58 ; 4 Wend.46:2;</p>

Writ of error to the County Court of Sumter. This Was a suit commenced originally before a justice of the peace against the intestate of the defendant in error; after judgment in favor of the plaintiff, the case was removed by certiorari to the County Court.

<p>J, Under ap indictment for selling to a slave, without the consent of his master, one yard of .cotton cloth, it is not necessary that the evidence should prove that the cloth sold -was of cotton.</p> <p>Q. In every criminal .case, the defendant’s guilt must be made out by evidence of a conclusive nature and tendency, and must exclude any reasonable supposition of innocence.</p>

The bill was filed by the defendant in error to rescind a contract entered into for the exchange of lands. The material allegations of the bill are, that on the 29th day of January, 1841, the parties entered into a written agreement for the exchange of lands. That the complainants agreed to convey certain lands, lying in Sumter county, in exchange for two tracts, lying in Clarke county.

Writ of error to the Circuit Court of Coosa. This was an action of debt at the suit of the plaintiff in error against the defendants, as the sureties of James C. M. Logan, deceased, in his official bond as sheriff of Coosa. — • Among other breaches, it is alledged in the declaration, that the principal in the bond while sheriff, collected money on fieri fiadas, at the suit of the real plaintiff, which he had failed and refused to pay over.

<p>Writ of error to the Circuit Court of Tuscaloosa County.</p> <p>CovbNAnt by Whitehead against Banks and Ready, as the executors of Sims, on a deed of bargain and sale, conveying a certain tract of land therein described, with a clause of warranty, in these terms: “ And the said party of the first part, for .himself, his heirs, executors, and administrators, doth hereby warrant, and will forever defend the title of the above bargained premises to him, [the said party of the second part,] his heirs and assigns forever, from the claims of all and every person or persons whomsoever, as also the claims of the General •Government.” The declaration contains several counts, all of ¡them .setting out a similar breach to that contained in the first, which is as follows: “ And the said plaintiff avers that at the time of the making of the said deed, or at any other time, the .said Edward Sims was not the owner of the said bargained premises, or any part thereof; but that the lawful freehold, title, and possession in the same, at the time of the making, sealing, and delivering the said deed, was in another person than the said Edward Sims, to wit — that it was in one John Nelson, and still continues to be in the said Nelson, who then lawfully claimed and possessed and still continues to claim and possess, by reason whereof the said plaintiff cannot hold, ■possess or enjoy the said bargained premises, or any part thereof.” In one of the counts, after alledging the title, freehold, and possession to be in the said Nelson, the breach concludes, “by reason whereof the said plaintiff is, and always has been unable to obtain possession of said bargained premises.” The defendants demurred, and judgment being given for the plaintiff on the demurrer, this is now assigned as error.</p> <p>insisted that the assignment^of breaches upon the covenant of warranty was insufficient, as no eviction was aliedged.</p> <p>contended that the allegation that the plaintiff was unable to obtain possession in consequence of the outstanding permanent title, was equivalent to a formal allegation of eviction. The same facts, if in evidence, would well warrant a recovery. [Caldwell v. Kirkpatrick, 6 Ala. Rep. 60.]</p>

<p>1. A license to establish a ferry is the grant of an incorporeal hereditament sub. ject to be revoked if a sufficient bond is not executed within ten days after such requisition is made. It is an interest which may be sold, and will descend to the heir as an incident of the fee.</p> <p>52. When a transcript from the Commissioners’ Court discloses that the Court had jurisdiction over the subject, the time when it held its session can not be inquired into collaterally.</p> <p>3. If the Commissioners’ Court meets at the proper time, it may adjourn to any .day before the commencement of the next term, and is not required to adjourn from day to day until that time.</p>

Writ of error to the Circuit Court of Barbour. The defendant in error recovered a judgment against Lore and Edmund Sheppard, and caused the latter to be arrested on a ca. sa. who discharged himself by rendering a schedule of his estate and taking the insolvent oath. Wm.

Writ of error to the Circuit Court of- Mobile County. Assumpsit by the Bank to recover certain moneys from Collins, had and received to the use of the Bank. At the trial, -the proof was that this action was brought by Arder of the Governor, by virtue of a joint resolution of the General Assembly, approved 14th February, 1843. The defendant was a director of said Bank from the 9th of April, 1842, until February, 1843.

The plaintiff in error filed her petition to supersede an execution which had issued against her as surety on a forfeited delivery bond.

<p>1. An appropriation and payment by the board of directors of the Branch Bank at Mobile, to an individual director, for extra services, performed by him in the interior counties of the State, is not warranted by law; and the amount thus paid may be recovered from him by the Bank.</p>

. This was an action on the case by the plaintiff in error against the defendant, to recover damages for his neglect to give notice to Thomas G. Newbold, that a promissory note made by Jeremiah Findley and John Cody, and indorsed by Newbold,, Andrews, and Fontaine & Freeman, for the payment of seven hundred and forty-one dollars on the first and fourth of January, 1839, had not been paid at maturity, by the maker.

<p>Writ of error to the Circuit Court of Pickens.</p> <p>Assumpsit by Smith against Woodward, as administrator of Joseph Smith, for money had and received.</p> <p>It appeared at the trial that Joseph Smith, the defendant’s intestate, in his lifetime, sold to one Owen, three eighty acre tracts of land, for 18 37-100 dollars per acre. When the conveyance of these lands was to be made, the purchaser discovered that the title to one of the tracts was in the name of the plaintiff, who was a son of the vendor. The purchaser was unwilling to accept a deed from the vendor, and insisted on having one from the plaintiff. After some conversation aside with his father, the son executed a deed to the purchaser for this tract of land, and the notes for the entire purchase money were then executed and delivered by the purchaser to the father, without any objection on the part of the son; the father remarked at the time, that John ought to let him have the notes, as he had debts to pay, and the main part of all he had was for his son any how. With a portion of the notes so received the father paid his debts; another portion he collected in cash; and the remainder of 600 dollars was paid to his administrator. There was no note or memorandum in writing executed by the father to the son, with reference to the land iu question.</p> <p>On this state of proof, the defendant asked the Court to instruct the jury that they could not find for the plaintiff, unless there was a promise or agreement, or some memorandum in writing, binding the defendant’s intestate to pay the plaintiff for the land. This was refused, and the defendant having excepted, now assigns this refusal as error.</p> <p>— cited Miller v. Irwin, 1 Dev. & Bat." 103; Cody v. Caldwell, 5 Day, 16 ; 9 Mass 510; 2 lb. 540; IT lb. 258; Lewis v. Grimes, 7 J. J. Marsh, 336; 6 Dana, 337; Bliss v. Thompson, 4 Mass. 488.</p>

<p>1. When an election is ordered by the Legislature to ascertain the sense of the people of the county, as to the site of the court house, and an election is had, it ought not to be disturbed because of some irregularity, or informality in the modo of holding it, if a majority of the legal votes are cast in favor of a particular place.</p>

Writ of error to the Circuit Court of Sumter. This was an action of trespass at the suit of the defendant in error against the plaintiff, brought as well to try titles to a lot in the town of Livingston, particularly described in the declaration, as to recover damages for its occupancy. The de■fendant pleaded “ not guilty,” and issue being joined thereon', the cause was submitted to a jury, who returned a verdict for the plaintiff, and judgment was thereupon rendered.

Writ of error to the Circuit Court of Cherokee County. Assumpsit by the Western Bank of Georgia against John Lowry, as the indorser of a note made by one Bennett, payable at the Western Bank of Georgia. The first count is in the usual form upon the indorsement, and avers demand of payment and notice of non-payment to the indorser; the sixth count is the common one upon an account stated.

TiiovEit for a slave by the plaintiff against the defendant in error. The plaintiff claimed the slave under the will of his father. The defendant claimed under one John S. Devan, who became possessed of the slave in right of his wife Sarah Garnett.

Writ of error to the Clerk of the County Court of Sumter, This was an action of assumpsit at the suit of the defendant in error against the plaintiff, on a promissory note, dated the 11th of August, 1S36, for the payment of seven hundred dollars on the first day of January, 1838.

Writ of error to the Circuit Court of Dallas. Tkespass by Hunter against Davis, for killing a slave. At the trial the defendant claimed a struck jury under the statute. [Clay’s Dig. 459, § 52.] Accordingly a list of twenty-four jurors, then in attendance on the Court, was furnished to each of the parties. When their lists were furnished the plaintiff claimed the right to purge the pannel for cause, by asking the questions contained in section 3S, page 457, Clay’s Digest.

This was a suggestion by the plaintiffs in error that the defendant, sheriff of Benton county, could by due diligence, have made the money on an execution of the plaintiffs against Edward Herndon and W. C. Kelly, and having made out a prima facie case, rested.

Writ of error to the Court of Chancery sitting in Wilcox. Held: that the complainant could not be allowed to prove any other consideration for the mortgage than it expressed-; and that the mortgage was fraudulent: consequently the bill was dissmissed at the complainant’s cost. insisted, that the facts did nol'warrant the conclusion that the mortgage was made otherwise-than in good faith, at least…

Writ of error to the County Court of Sumter. MotioN against Gary, as sheriff of Sumter, for having failed to return an execution at the suit of Boykin. The defendant pleaded: 1. That before the return day of the execution the sheriff paid to the plaintiff the damages and interest mentioned therein; and he then excused the sheriff from returning it. 2.

Assumpsit by the defendants in error, as indorsees of a promissory note, made by the plaintiff in error, to one D. Jones.

Writ of error to the Circuit Court of St. Clair. This was an action of assumpsit brought by the intestate of the plaintiff in error against the defendant, for the recovery of. the price of a stallion, (named Cicero,) which he had previously sold and delivered to him.

Writ of error to the Circuit Court of Montgomery County. ActioN in the' case by Durden against Barnett & Harris.

The bill was filed by the plaintiffs in error, and alledges that Edward Lassiter died seized and possessed, among other lands of,the N. W. quarter of Section 21, T. 15, R. 14, and that Geo. M. Reese, was administrator on his estate.

Writ of error to the Circuit Court of Coosa. This was a suggestion under the statute, at the suit of the plaintiffs in error, against Smith, as the sheriff of Coosa,.and the co-defendants as his sureties, ailedging, that with due diligence a writ of fieri facias placed in the sheriff’s hands, at the suit of the plaintiffs, against Jeremiah M. Friou’s estate, could have been collected.

Writ of error to the Circuit Court of St. Clair County.- • Assumpsit by Patrick and Smith against Morgan, on- the money counts. After the trial of the case, a statement of thé facts proved before the jury, and the questions supposed to arise thereon, was made by the counsel of the parties, and substituted in place of a bill of exceptions.

Writ of error to the Circuit Court of Benton. This was aetion of detinue by the defendant in error against the plaintiff. The declaration contains two counts, each of which charge the detention of a female slave named Betty, and others who are particularly named; also many articles of household furniture, plantation tools, stock, &c., which are described generally, by their respective numbers.

Writ of error to the Circuit Court of Randolph County. Lattimore had obtained a judgment in an attachment suit, in a justices’s court of Randolph county, and having caused an execution to be levied on a tract of land, he then moved the-Circuit Court at the Spring term, 1S40, for an order of sale, under the statute directing such proceedings. The order was made, and a venditioni exponas issued the 22d August, 1842, tinder which the land was sold to the plaintiff Lattimore.

Writ of error to the County Court of Macon. This was an action of assumpsit on a promissory #ote, at the suit of the defendant in error against the plaintiffs. The original writ was returned executed on William, Tatum, one of the defendants, and not found as to the other two. An alias writ issued against all the defendants and was executed in full, except upon Tatum, as to whom it was returned “ not found.” A judgment by default was rendered against all the defendants.

<p>Writ of error to the Circuit Court of Macon.</p> <p>This suit was commenced on a suggestion by Charles, that Williams, as the sheriff of Macon county, by the use of due diligence, could have made the money on a fi. fa. at the suit of Charles against one Jennings, and others.</p> <p>At the trial of an issue between the parties it was in evidence that a fieri facias was issued on a forthcoming bond, on the 4th day of July, 1843, against Jennings and others, which the defendant returned satisfied as to all but 271 50-100 dollars, which amount he returned, had been paid to a former sheriff as appeared from his receipt. A fi.fa. had previously issued against Jennings and one of the parties on the 27th day of February in the same year, and was indorsed as received the 28th of that month, by one Fitzpatrick, who then was the sheriff. He vacated the office without doing execution by any actual levy, and the fi.fa. came to the hands of the defendant on the 18th May, of the same year. It was levied by the latter on a slave, and returned without satisfaction. Fitzpatrick was indebted to Jennings for fees as jailer, and on a settlement with him before he handed over the fi. fa., last named to the defendant, as his successor he gave him a receipt for 271 50-100 dollars against the fi. fa., but received no money from him. The defendant was notified when the execution last issued was placed in his hands, to proceed and make the money without reference to the receipt given by the former sheriff, as no money had been paid by Jennings.</p> <p>On this state of proof, the defendant requested the Court to instruct the jury:</p> <p>1. That if they believed that the execution placed in the hands of Fitzpatrick was never returned by him, but was af-terwards placed in the hands of the defendant as his successor, and was by him returned levied, and returned as forfeited, that no rule could be maintained against the defendant on the execution subsequently issued on the forfeited bond.</p> <p>2. That if Fitzpatrick received on settlement from Jennings an account due to him for jail fees, and gave a receipt for the amount when the execution was in his hands, then Jennings is discharged to that extent, and the defendant is not liable thus far.</p> <p>3. That if they believed the receipt from Fitzpatrick to Jennings was presented to the defendant, he was bound to receive it as such; and that it was proper to be taken into consideration by them under the issue of due diligence, even though the defendant was notified that no money was paid by Jennings in satisfaction of the execution, if the former sheriff could have made the money out of Jennings by a levy.</p> <p>These several .charges were refused, and the refusal is now charged as error,</p> <p>cited Gullet v. Lewis, 3 Stew. 23 ; Bobo v. Johnson, 3 S. &. P. 385; Codwise v. Fields, 9 John. 263; Bank of Or. County v. Wakeman, 1 Cowen, 46 ; Mumford v. Armstrong, 4 Cowen, 553,</p>

Writ of error to the Circuit Court of Mobile. This was a proceeding by notice and motion under the charter of the Bank, to recover a judgment against the plaintiff in error, as the drawer of a bill of exchange, drawn by him at Mobile, the 15th April, 1841, on Wm. C. Dickinson of Mobile, requesting him to pay to Henry G. Davis, or order, nineteen hundred and fifty-two 92-100 dollars, on the 20th December next thereafter, payable at the Merchants’ Bank of the City of New York.

Writ of error to the Court of Chancery sitting in Lauderdale County. In July, 1834, the defendant in error filed his bill in the Circuit Court of Lauderdale, against Hugh Findren, Thomas and James Kirkman, and John Stacker, alledging that the former was indebted to the complainant in the sum of three thousand, four hundred and fifty-nine dollars and ninety-six cents. That, that indebtedness occurred in consequence of advances made by Messrs.

Writ of error to the Circuit Court of Marengo County. Detinue by James H. Dubose against Joel Dubose for certain slaves. At the trial, it was shown in evidence that the defendant, as sheriff of Marengo county, on the 8th of November, 1S42, seized the slaves in controversy, as the property of Isaiah Du-bose, by virtue of a fieri facias against him at the suit of one Maywood, issued the same1 day.

This was a motion against the defendant as sheriff, by the plaintiffs in error, and comes before this Court on a case agreed, presenting the following facts: The plaintiff and A. Pope & Son, each obtained judgment against one Holman F. Simmons at the same term of the Court. Executions were issued on both judgments, came to the sheriff’s hands, and were levied on a female slave, a slave named Ben, a wagon and pleasure carriage, as the property of Simmons.

Writ of error to the Circuit Court of Clarke County. A fieri facias issued from the Circuit Court of Clarke, at the suit of the plaintiff in error, against the goods, &c., of John Bouler, was levied on the following slaves, to wit, Robin, Charlotte, Rachel, Elvira, Julia, Betsy, Tom, Mina, Harriet, Luke, Jane, and Helen, as the property of the defendant in execution; of all whom were claimed by the defendant in error, and bond executed to try the right as required by the…

Writ of error to the Circuit Court of St. Clair. Assumpsit by Sarah Chandler, executrix, and Joel Chandler, Jr., and James Hampton, executors of the last will of Joel Chandler, dec’d., against Shehan as the maker of a promissory note signed by him, together with Joel Chandler and H. McCoy, payable to the executors of the estate of Joel Chandler, deceased.

Assumpsit by the defendant in error for the use of John Sntlif, on a promissory note, for one thousand dollars, payable to Andrew Armstrong, cashier, or bearer, negotiable and payable at. the Branch Bank at Mobile, and purporting to be made by Benjamin Fuller, the plaintiff in error, and George H. Patillo. Fuller and Patillo not being served with process, the action as to them was discontinued. The defendant pleaded non est factum, and the general issue.

The petitioner sets forth that he was indicted in the Circuit Court of St. Clair, at the Spring term, 1842, for an assault on. James Kennedy, with the intent to kill and murder. At the term holden in the Fall of that year he was put upon his trial on that indictment — that the jury which had the case in charge being unable to agree, the presiding Judge, without any authority therefor discharged them, oh Friday the fifth day of the Court and before the expiration of the term.

Writ of error to the Court of Chancery for the 26th District of the Middle Division. The case made by the bill is substantially this: On the 14th of April, 1842, Wiley J. Sorell, executed a deed of trust which on its face appears as an indenture tri-parte.

The bill was filed by the plaintiff in error, and charges that in September, 1840, by an agreement in writing, the defendant Walker, sold to the complainant his estate, real and personal, consisting of lands and slaves, household furniture, and other articles of property for the sum of thirty-seven thousand dollars.

Writ of error-to the Court of Chancery sitting in.Montgomery. The defendant in error filed his bill in June, 1841, setting forth that as an attorney and counsellor at law, residing in this State, he received of the “ Tombigbeé Rail Road Company,” (a foreign corporation,) in the year 1838, a note and sundry other claims for collection, amounting to a very large sum of money — a part of which have been collected.

Writ of error to the Circuit Court of St. Clair. Assumpsit by Hampton describing himself as executor of the estate of Joel Chandler, deceased, and as suing for the use of Sarah Chandler, executrix, and James Hampton and Joel Chaudler, executors of the last will and testament of Joel Chandler, Sr. deceased, against Shehan as the joint maker with Joel Chandler and Henry McCoy, who are not sued, of a promissory note payable to Hampton, by the description of James Hampton,…

The bill was Sled by the plaintiff in error, and charges that at the July term, 1842, of Sumter County Court, the defendants recovered a judgment against him for $587 68.

<p>Writ of Error to the County Court of Mobile.</p> <p>It appears from the record in this case, that the plaintiff recovered a judgment against the defendant, in his representative character, and that an execution issued .thereon, addressed “ to any sheriff,” &c., requiring to be made the amount, &c., adjudged to the plaintiff, of the goods and chattels of the testator in the defendant’s hands, to be administered, &c. This execution appears by the indorsement thereon, to have been received by the sheriff of Mobile, who returned the same “ no property found,” &c.</p> <p>In the transcript there is an order in these words : “ Levin J. Wilson v. Alexander Auld, executor. This day came the parties, by their attorneys, and the motion of the defendant’s attorney to quash the execution and return in this case, on the ground of irregularity, the same having been issued contrary to law, to an improper officer, and the return having been made by an officer legally incompetent to act in the premises, being seen and heard by the Court, the same is granted, and the execution and return accordingly quashed.” It is here assigned for error, that the County Court, without any sufficient reason, quashed the execution.</p>

This proceeding in the County Court was the final settlement of the estate of James Knight, deceased, by Godbolt, administrator de bonis non. Among the items charged against the estate were several promissory notes made by Knight in his life time, to Godbolt, which had been past due for more than six years before the death of Knight. The counsel for the distributee objected to the allowance of those items in the account.

Assumpsit by the defendant against the plaintiff in error. It appears by a bill of exceptions that the plaintiff below, as the agent of McCargo, sold certain lands to Tod Robinson, taking from him two promissory notes payable to himself as agent of McCargo, each for $>G66 33, which notes were indorsed by William Robinson.

<p>1. In an action of trespass for biting and bruising the plaintiff’s finger, so that it became necessary to amputate it, it is not permissible to prove that the plaintiff was a man of drunken and dissipated habits about and after the time of the al. lodged trespass; so as to lay a predicate for the jury to infer, whether the loss of the finger did not result from a condition of the system, superinduced by intemperance.</p>

Writ of error to the County Court of Sumter. Hair, as administrator of Wallace, sued out a writ returnable to the February Term, 1843, of the County Court, against Thompson and others: this writ, was received by the sheriff on the 6th of February, and returned on the 10th, “ not in time to execute.” The second Monday, which is the time fixed for the session of the Court, fell upon the 13th day.

The bill was filed by the plaintiff in error. The facts of the case as shown by the bill are, that the complainant was appointed guardian of Major Davis, a lunatic, during the year 1832, and acted as such until December, 1836, when Davis was declared compos mentis, and restored to the possession of his estate.

Writ of Error to the Court of Chancery, sitting at Ashville. The plaintiff in error filed his bill, setting forth that James Robertson, since deceased, about the second day of February, 1838, sold to the defendant, McCook, a tract of land situate in the county of St. Clair, (particularly described,) executed a bond for titles and received from McCook his notes for the purchase money.

Writ of error to the Circuit Court of Macon County. Assumpsit, by the Mechanics’ Bank against John and John H. Gindrat, as indorsers of a bill of exchange, dated 23d June, 1838, at ninety days, payable at the Branch Bank of Alabama at Montgomery. The declaration is in the usual form, and avers that the defendants had due notice of the protest of the bill for non payment.

Assumpsit by the defendant in error against the plaintiffs in error for the proceeds of one hundred and ninety bales-of cotton, which the defendants as factors of the plaintiffs, had sold and not accounted for. Plea by Austill, puis darrien continuance, that he had obtained his certificate of final discharge as a bankrupt.

Writ of Error to the County Court of Mobile. This was a suit commenced before a justice of the peace, by the defendant in error, for the recovery of a sum less than fifty dollars, and removed'by appeal to the County Court, where a verdict was returned for the plaintiff; and judgment rendered accordingly. On the trial certain questions of law were reserved, which are duly certified by the bill of exceptions.

<p>1. When notes are given by a purchaser for the price of land, agreed to be sofd by verbal contract only, their payment cannot be avoided, on the ground that the contract is void by the statute of frauds. It is an executed contract so far as the purchaser is concerned, and if the vendor is willing and able to perform the verbal contract, the notes cannot be for this cause avoided,</p>

<p>Error to the County Court of Sumter.</p> <p>Thespass, vi et armis, by the defendant against the plaintiff in error, for an assault and battery on a slave, the property of the plaintiff.</p> <p>Upon the trial, the plaintiff introduced a witness, who proved that he, the witness, had accused the defendant in the presence of the plaintiff, of the commission of the trespass, and that the defendant did not deny it, but replied: “If I whipped the negro, you prove it — I shall not tell you any thing to commit myself.” Whereupon the Court charged the jury, that when a man is charged with the commission of a trespass of this character, in the presence'of the owner of a slave, and did not promptly deny it, it was presumptive evidence that he was guilty of the charge. Also, that the jury were not to measure the damages by the value of the slave, but might give smart money. To all which the defendant excepted, and which he now assigns for error.</p> <p>cited 1 Stewart, 145; 3 S, & P. 329.</p>

Writ of error to the County Court of Mobile. This cause originated before a justice of the peace at the instance of the defendant in error, to recover, as the summons recites, of Henry W. Horn, “a debt, or other deihand, not exceeding fifty dollars.” We find in the transcript a paper purporting to be an appeal bond, subscribed by Horn and Hugh McCaw, but without any scrawl or other substitute for a seal.

Writ of error to the Circuit Court of Greene. Suit commenced by Mabe against McCary, in Justices Court, where the plaintiff had judgment, ¿nd from which the defendant appealed to the Circuit Court, giving White as his surety on the appeal bond. In the Cireuit Court, Mabe filed a statement, alledging the indebtedness to him by McCary for nine dollars.

<p>Error to the Circuit Court of Butler County.</p> <p>Assumpsit by the plaintiff" in error against the defendants in error, upon a promissory note.</p> <p>Upon the trial, it appeared that the defendant, Childress, and one Sutton, made a bet upon a horse race; that Sutton won the race, and the horse which had been staked upon the issue of the race, was given up to him. That eight or ten days afterwards, Childress purchased the horse from the plaintiff, who was interested in the bet, and had purchased the interest of his partner, and executed to him the note sued on in payment, and that the beneficial plaintiffs became interested in the note without any knowledge of the consideration.</p> <p>The plaintiffs’ counsel moved the Court to charge the jury, that the plaintiffs were entitled to recover, notwithstanding the consideration on which the note was founded. Also, that if the beneficial plaintiffs were purchasers of the note for a valuable consideration, without notice of the circumstances under which it was executed, they were entitled to recover; which charges the Court refused to give, and the plaintiff excepted.</p> <p>The assignment of error, is the refusal to charge, as stated, in the bill of exceptions.</p> <p>cited 1 Littell, 50; 1 Monroe, 115; 2 Bibb, 300; 7 Porter, 251; 5 Ala. Rep. 708.</p>

<p>Writ of error to the Circuit Court of Talladega.</p> <p>The defendant in error declared against the plaintiff upon a promissory note, by which the latter, on the 26th of August, 1842, promised to pay the intestate of the former, the sum of three hundred dollars, on the 25th of December, 1843. The cause was tried on the pleas of non assumpsit, set off, want of consideration, and failure of consideration. On the trial, the defendant offered in evidence a note of the following tenor, subscribed by the intestate, viz : “By the first day of October next, I promise to pay James M. Handley or bearer, fifty barrels of corn, value received, 26th of August, 1842.” He also offered to prove, that corn was worth two dollars in the intestate’s neighborhood when the note matured; but this evidence, as well as the note itself, were rejected as inadmissible.</p> <p>On the note declared on, a credit was indorsed for seventy-five dollars, dated the 24th December, 1842. The defendant’s counsel prayed the Court to charge the jury, that if they believed this credit had been correctly entered, twelve months before the note become due, they ought to allow the defendant interest thereon from its date. This charge was refused, and instead thereof, the jury were instructed, that they ought to deduct the credit from the amount for which the note was given, and return a verdict in favor of the plaintiff, for the balance, with interest from the maturity of the note. The several points stated are duly reserved by bill of exceptions. A verdict was returned in obedience to the instructions of the Court, and judgment rendered accordingly.</p> <p>insisted, that the note for the payment of the corn was a good set off, and the evidence to show the value of the corn was indispensable, to enable the jury to determine how far the plaintiff’s recovery should be reduced. [1 Stewt. Rep. 524 ; 2 Stewt. Rep. 444; 1 Ala. Rep. N. S. 83; 3 Id. 16, 371; 6 Id. 324.] Justice required the plaintiff to pay interest upon the payment credited on the note.</p> <p>The note offered as a set off, is an undertaking to pay in corn, but does not ascertain and determine its price ; the amount then is unliquidated, and under our statutes connotbe set off. [Babbington on Set Off, 33; 4 Esp. Rep. 207; I Ala. Rep. N. S. 637; 2 Id. 71.]</p>

Writ of Error to the Court of Chancery for the first district. The case made by the bill is this: In the year 1837, one Rufus Green, at Mobile, for the accommodation of Jeremiah Austill, drew four bills of exchange, for ñvo thousand dollars, on Hamilton & Cole, of New York.

Trover by the defendant against the plaintiffs in error, to recover damages, for the conversion of a promissory note for $1,503 30, made by Wm. Johnson & Co. to the plaintiffs. Upon the trial, the plaintiffs introduced Frederick Dorr, of the firm of Wm.

Writ of error to the Circuit Court of Montgomery. On the third day of April, 1843, a writ of fieri facias at the suit of the defendant in error, was issued against the goods and chattels, &c. of Charles Mervine, requiring to be made the sum of nine hundred and seventy-five 50-100 dollars, besides costs. This writ was levied on a negro woman named Mary, and her child Isabella, as the property of the defendant in execution.

<p>1. Under the act of December, 1841, a note payable ,to B. G. cashier, and described in a notice under the statute by the State Bank or Branch Banks, is sufficient to show that the title is in the Bank.</p> <p>2. An objection taken at the trial to the notice, certificate, and note, is not suffi■ciently specific to reach a supposed defect of authority in the person serving and returning the notice.</p> <p>3. Courts will, ex officio, take notice of the returns made by Bank agents, in the same manner as they do returns by sheriffs.</p> <p>4. It is contrary to the duty of a clerk to transmit original papers pertaining to the cause below to this Court. Copies only should be sent.</p>

<p>Error to the Chancery Court of Mobile.</p> <p>The original bill in this cause, was filed by Joseph Cow-perthwaite, Thomas Dunlap, and Herman Cope, to foreclose a mortgage executed by Henry Hitchcock, upon certain lands in Mobile, to secure the payment of a debt due them of six hundred and twenty thousand, five hundred and thirty dollars, , ninety-six cents, with interest at the rate of eight per cent, per annum, from the 1st March, 1838. That Hitchcock has departed this life, and devised all his estate, real and personal, to his wife, Anne Hitchcock. That by a deed made on the -day of-, IS40, she remised, and released, to the complainants all her legal and equitable title to the mortgaged premises, and put them in peaceable possession thereof. That Isaac H. Erwin, has been appointed administrator of the estate of Ii. Hitchcock, and has, or may pretend to have, some right to redeem the said mortgage. The prayer of the bill is, that he be made a party to the bill, that unless the mortgage debt be paid, the mortgage be foreclosed, &c.</p> <p>At a subsequent term leave was given to make new parties, and to amend generally, and the complainants filed a supplemental, and amended bill, in which, after reciting the original bill, they state, that they are trustees for the president, directors, and company of the Bank of the United States, and pray that the said president, directors and company, may be made complainants jointly with them. That the'original bill was filed amicably, with an express agreement between complainants and the agent of Anne Hitchcock, that they should, under a decree of the Court, be put in peaceable, and quiet possession of the mortgaged premises. That during the life time of H. Hitchcock, and after the forfeiture of the bond, and mortgage, a bill was filed by them to foreclose it, to which he filed the plea of usury. That whilst the bill was pending, and the plea undecided, and whilst Hitchcock was engaged in a negotiation with them for the payment of the debt by a transfer of real estate, he died, making his wife, Anne Hitchcock, his execu-* trix, with power to pay his debts, by a public, or private sale, of his real or personal estate.</p> <p>That the mortgaged property was almost without exception, improved, and the rents estimated at about fifty thousand dollars per annum. That to obtain possession of the property, and avoid the delay attending the litigation of the plea of usury, Herman Cope, one of the complainants, and as the agent of the Bank, came to Mobile, for the purpose of negotiating with the representatives of Hitchcock for the possession. That he had many interviews with one James Erwin, the brother of Mrs. Hitchcock, on the subject of such settlement, he representing himself as her agent, and fully authorized to make such arrangement. That said Erwin represented, that the estate was largely insolvent, and that there were creditors to a great amount, wholly unprovided for. That these claims could be all paid, by the sum of one hundred and fifty thousand dollars. That upon the payment of that sum of money, for these purposes, the Bank should enter into the premises by a conveyance from the devisee, and should enjoy the same without let or hinderance from the representatives of H. Hitch-cock. That the bill filed by the Bank against H. Hitchcock should be abated. That the devisee should decline to take upon herself the execution of the will, but that a friendly administrator should be appointed, who would acquiesce in the final adjustment.</p> <p>That confiding in these representations, he paid into the hands of James Erwin, the said sum of one hundred and fifty thousand dollars, to be applied by him to the payment of the unsecured debts of H. Hitchcock, and the devisee, by deed of release, conveyed to complainants all her legal and^equitable estate in the premises; and received from them, a release of all demands against said Hitchcock’s estate; and supposing themselves in virtue thereof in possession of the premises, they filed the original bill.</p> <p>That James Erwin, some time before the negotiation between him and complainant Cope, had purchased at sheriff’s sale, under an execution, as the property of H. Hitchcock, eight stores, (included in the mortgage) at fifty dollars, and took the sheriff’s deed therefor — that said stores are estimated in the mortgage deed at two hundred thousand dollars, and as security for that sum, were accepted by the complainant — that after the said agreement was concluded on, and the money paid, said Erwin agreed to give complainants, as one of the means of quiet enjoyment, and possession, of the premises,' whatever title he had acquired by his purchase — that said Erwin desired the terms of the negotiation to be concealed, that he might be able the better to arrange the payment of the debts of H. Hitchcock.</p> <p>That Isaac H. Erwin was appointed administrator of Ii. Hitchcock, and instead of carrying the agreement into effect, has in every way endeavored to thwart it, by leasing out the premises, and by publicly advertising that complainants were not in possession of the premises, &c. The bill also makes Anne Hitchcock, and her children, the heirs of H. Hitchcock, parties to the bill. On motion, and upon affidavit, the Court granted an injunction restraining Isaac- H. Erwin, administrator, from intermeddling with the mortgaged premises, or the rents thereof, and also appointed a receiver.</p> <p>The complainants filed a second supplemental and amended bill, repeating the charges more specifically — charging also, that Isaac H. Erwin acquiesced in the agreement, made with his brother, as agent of Mrs. H., but delayed the execution of it under various pretences, and finally made another demand of the Bank as the price of his acquiescence, &c. That the original debt due from H. Hitchcock was $520,530 96-100, and that the further sum of $100,000, was by the Bank advanced to said Hitchcock, to be by him expended in improvements upon the mortgaged property, under the direction of an agent of the Bank, and that it was so expended.</p> <p>That since the filing of their bill, they have conveyed all their interest in the aforesaid mortgaged premises, to James Dundas, Mordecai D. Lewis, Samuel W. Jones, Robert L. Pit-field, and Robert Howell, and pray that they may be taken and considered as joint complainants, &c.</p> <p>To this bill, Isaac H. Erwin, administrator, with the will annexed of H. Hitchcock, demurred.</p> <p>Mrs. Hitchcock, by her answer, denies any personal knowledge of the indebtedness of her husband, to the Bank, but adopts the answer of her husband to the bill filed against him, as containing a true statement of the facts. She admits the execution of the mortgage to the Bank, and that she joined therein, but whether she thereby released her dower, or not, does not know.</p> <p>She admits, that under the belief, that as devisee in trust she had the right to do so, she executed to the complainants the deed referred to in the bill. The sole consideration of said sale, or release, was the indebtedness, or supposed indebtedness, of her husband’s estate, she received no money from the complainants, but supposed it was a compromise. That within the time prescribed by law, she renounced all benefit under the will, and elected to take such interest as she was entitled to by law — that in relation to the $150,000 paid James Erwin, she does not know what understanding existed, between him and complainants, except that Erwin informed her, he received it in payment for eight store houses'. No part of the money ever came to her hands, to appropriate to her own use, or to the payment of her husband’s debts.</p> <p>Isaac H. Erwin also answered the bill, and insists by his answer, that the original bond and mortgage were void. That as Mrs. Hitchcock had not qualified as executrix, she had no interest to convey by the deed. That as she had a mere naked legal right, her sale passed no interest. That said sale was invalid, because the proceeds of the sale, were not appropriated in payment of debts.</p> <p>The bill was also answered by the guardian ad litem of the infants.</p> <p>The record, consisting of upwards of five hundred large folio pages, contains a vast amount of testimony and documentary. evidence, which it is impossible to make even an abstract of j such of it as is important to a proper understanding of the case, will be found embodied in the opinion of the Court.</p> <p>The Chancellor gave an elaborate opinion upon the case, in which he attained the conclusion — that the Bank had power to make the contract of loan with Mr. Hitchcock, in this State —that the contract was made in this State, and that the bond, and mortgage, were valid — that Mrs. Hitchcock, as devisee, had power to convey the lands, and that her conveyance, pursuant to the agreement made with the agent of the Bank, by her agent, James Erwin, was binding on her, and the heirs, and personal representatives of Hitchcock; and that therefore, the Bank, might have either a strict foreclosure, or sale of the premises at its election. The complainants elected to take a strict foreclosure.</p> <p>From this decree the defendants prosecute this writ, and assign for error:</p> <p>1. The misjoinder of parties.</p> <p>2. The omission of necessary parties.</p> <p>3. The supplemental bill was not authorized by the leave to amend.</p> <p>4. The original and supplemental bills do not contain matter of equity jurisdiction.</p> <p>5. In overruling the demurrers to the bill.</p> <p>6. In admitting the Bank of the United States a party, when not made so by the second bill. ■</p> <p>7. In appointing a receiver.</p> <p>8. In bringing the infant heirs before the Court, by order of publication.</p> <p>9. In examining H. Cope, one of the complainants, as a witness.</p> <p>10. In ordering to attorn the receiver.</p> <p>11. In granting the injunction against I. H. Erwin.</p> <p>13. In refusing to modify it.</p> <p>13. In not dismissing the bill on demurrer.</p> <p>14. In the decree rendered.</p> <p>The plaintiffs rely on the following propositions to defeat the bill of the complainants :</p> <p>1. The bill is defective in respect to the complainants. It is uncertain who the complainants are, and this uncertainty is fatal. Are Cowperthwaite, Dunlap and Cope, parties, complainants or not? It can be shown from the bill that they are, and it can be shown that they are not.</p> <p>The allegations are several, and not joint. Some are made by one party, and some by another; this cannot be done on a joint bill.</p> <p>Farties are retained before the Court as complainants, jointly with others who have no interest.</p> <p>There is a change of parties complainants; those who filed the bill are out of it, and others substituted.</p> <p>A title acquired after suit brought is relied on.</p> <p>The bill presents an alternative right, in one or the other complainants; this cannot be sustained.</p> <p>As to the uncertainty of complainants, and joiningthem, and transfer of right pending suit, 3 Paige, 450; 1 Hopkins, 555 ; 4 Russel], 242, 244, 225; 3 Cond. Eng. Ch. Rep. 651-2, 643 ; Edwards on Parties, 14, 229; 2 Maddox Ch. Rep. 466; 1 At-kyns, 291; 2 J. Ch. Rep. 245; 1 Marshall, 594; 2 Dickens, 707; Story’s Eq. PL 155 to 163, 147 to 153.</p> <p>2. There is no equity jurisdiction shown by the bill, and it is bad on demurrer.</p> <p>If the allegations of the bill are true, the complainants have the fee simple title, and the remedy is by ejectment.</p> <p>The bill shows a void contract, and which no court of law or equity could enforce.</p> <p>The bill shows a fraudulent combination against the heirs and creditors, administrators and legatees, and is in fraud of the laws of descent, distribution and rights of creditors.</p> <p>So far as the mortgage is concerned, the bill shows a severance of the debt from the title to the land, the land being conveyed to Dundas, but the bond not being assigned.</p> <p>The bill shows a title obtained from Mrs. Hitchcock, by a breach of the trust by her, and being claimed under a breach of the trust it is void.</p> <p>The title of the complainants is shewn, by the bill, to be a void one.</p> <p>The bill is not sustainable, as a bill to foreclose, because it does not show a case in which there is a right to redeem. It is not allowable to offer, gratuitously, the privilege of redeeming, where the right does not exist, and make such an offer the foundation of a right to file a bill to foreclose, else a party could always, in every case of a contested right, file a bill, offer to his adversary the privilege to redeem, where the price was of equal value with the land, and thereby, on a failure to redeem, obtain a decree against his adversary, barring all title, and cut off the adverse title of infants, &c.</p> <p>The bill cannot be sustained on the ground of quieting title; the title has never been tried at law. If this case could sustain such a bill, any case could, where there was a contested title.</p> <p>Nor is it sustainable on the ground of restraining waste; no such case is made.</p> <p>Nor is the pretext to restrain multiplicity of suits better maintained.</p> <p>3. The bill shows no cause of action against Mrs. Hitchcock, and she is improperly made a defendant. She has violated no contract made by her.</p> <p>Her contract, so far as she has made any, is executed, and all the rights which such contract secures, are enjoyed by the complainants, and she has not disturbed them in any manner. Why then file a bill and seek a decree against her?</p> <p>Mrs. Hitchcock is no party to any disturbance made by Isaac H. Erwin, and has no connection with his acts.</p> <p>The right of dower of Mrs. Hitchcock, is not put in issue by the bill, nor is it sought to be subjected, and it cannot be sought to be barred by surprise, and by claiming it after decree, as barred by the decree, when no allegation in the bill is made on the subject.</p> <p>4. The bill cannot be sustained against the heirs of Henry Hitchcock.</p> <p>They are no parties to the disturbance of Isaac H. Erwin, and that cannot be made the pretext of a bill to bar their rights.</p> <p>They cannot be barred of their adverse title, by a bill, with a voluntary offer to allow them to redeem, when it is not admitted that they have a right to redeem.</p> <p>Their title to land cannot be litigated, on a bill to foreclose, which denies their right to foreclose. The bill shows a fraud as against them.</p> <p>Their adverse title cannot be tried on a bill, nor barred, nor defeated. They have a right to try it at law. [6 Paige, 637.]</p> <p>Equity has not jurisdiction to try adverse legal titles on a bill, and cannot, on a bill to foreclose, forestall adverse titles.</p> <p>5. The contract made in Philadelphia, between the Bank and Henry Hitchcock, and which provided for the execution of the bond and mortgage, was one unauthorized by the charter of the .Bank, and was void.</p> <p>This contract was made in Philadelphia, and is within all the prohibitions of the charter. It secures more than six per cent, interest, and this is contrary to the express restriction of the charter. And it is contrary to the usury laws of Pennsylvania.</p> <p>Though the general usury law of Pennsylvania merely affixes a penalty for the taking of usurious interest, a corporation cannot say it will violate the law, and incur the penalty, because the corporation is the creature of law, and it has no creation for the purpose of violating laws; in such, case its contracts are void, for want of power to contract — not like the case of individuals.</p> <p>The contract derives no aid from the circumstance that the money is stipulated to be paid in New York, because the law of New York, which is the place of payment, prohibits such a contract, and makes it void.</p> <p>It derives no aid from the circumstance, that lands in Alabama were to be mortgaged; that is but a cumulative security. Nor because a bond was to be made in Alabama, because that bond was to be a void bond, payable in New York, where, by law, it was made void.</p> <p>Nor can the contract be maintained because the debt was originally due in Alabama, even if that were true, because the contract is made in Philadelphia. But in point of fact, one half of the debt was due and payable in New York. And large sums were due in Philadelphia. It is not said where they were due, and the presumption is, they were due in Philadelphia, as they are there stipulated for, and nothing said to the contrary.</p> <p>The stipulation for the loan of money, to be laid out in improving real estate, in Alabama, is not warranted by the charter.</p> <p>A corporation cannot, by a contract, violate its charter, because it cannot make a void contract; not because the contract is void, but because no contract is made, as it can make only lawful ones. And when an illegal contract is attempted, for the want of power in the corporation to make it, it fails, and no right whatever is created; and the good cannot be separated from the bad, and there can be no such thing as a contract, which shall stand, though a penalty be incurred.</p> <p>As to the powers of a corporation — Angelí on Corporations; 8 Ohio Reports; 9, Mass. Rep. 52 ; 4 Ala. Rep. 558; 13 Peters’ Rep. 587; 1 Hall’s N. York Rep. 480,555-7; 2 Randolph, 109; 2 Peters, 527 ; 7 Wendell, 31; 4 Wheat. 518; 2 Cranch, 127; 4 Peters, 152; 1 Stewart, 299; 14 Peters, 129; 4 Peters, 168.</p> <p>6. The hond and mortgage made in Alabama, are void. They were made in pursuance of, and to1 carry out, a contract which was void, unauthorized by the charter, and in violation of a statute, and being made to carry out an illegal contract, they are void also.</p> <p>They are expressly made payable in New York; the law of New York governs their validity, and they are void, because they violate the usury laws of New York, which declares them void in toto.</p> <p>They are made by Hitchcock, in favor of a party claiming the right to contract under a foreign statute, contrary to the laws and policy of Alabama, and she is not bound to enforce them.</p> <p>Alabama, under the laws of comity, and, indeed, in every case, has the power to construe the charter for herself, and is not bound by the construction of any other State, and will not give force to a mere implication, the result of which would be, that the corporation would have more power abroad than at home.</p> <p>The restrictions imposed on the Bank at home, will be equally held as restrictions on her powers in Alabama, and she must be restricted to six per cent by her charter. Besides, the law of Alabama, in relation to Banks, restricts even the Alabama Banks to six per cent, interest.</p> <p>Though the statute of Alabama does not, by its very letter, bring the United States Bank positively within its terms, so as to restrain it by positive statute from taking eight per cent, in Alabama, still it is sufficient to indicate what is the policy of Alabama, so as to govern its comity in this respect.</p> <p>The transaction is a loan in substance, and secures a profit for the use of money. The loan is not like a mere forbearance, which can terminate the period of the running of the interest,, by payment, at any time. It is a contract which secures the rate for a fixed period, and the rate is positively secured.</p> <p>Where a contract violates a statute it is void — 5 Bam. & Aid S35 ; 7 Com. Law, 12 L; 17 Com. Law, 255, 256 ; 12 lb. 222 • Chitty on Contracts, 228, 217, 231, 232; 4 Halstead, 352; 5 lb. 87; 2 N. Hampshire, 517; 3 Halstead, 54; 1 Taunton, 136; 14 Mass. 322; 17 lb. 281; 8 Cowen, 20; Holt’s N. P. Ca. 435; 3 Starkie, 61; 11 East. 300; 1 Brod. & Bingh. 447 ; 2 Term, 610; 2 Bos. & Pul. 130, 374; 3 Vesey, 612; Bulstr. 3S; Hobart, 72; Dyer, 356; Park on Insurance, 232; 3 Bos. & Pul. 35; 1 lb. 272, 264, 340 ; 6 Term, 723.</p> <p>Any prohibition is sufficient, and it makes no difference whether it be by penalty or not — Chitty on Contracts, 232; 17 Mass. Rep. 281; 7 Wendell, 280; 2 Peters, 527; 1 Maulé & Selwyn, 597; 14 Johns. 273; 20 Johns. 397; 7 Com. Law Rep. 121; 17 lb. 355 ; 12 lb. 222.</p> <p>The plea of performance governs the contract as to its validity and construction — Story’s Confl. Laws, §280, 287, 292, 293, 296, 304; 2 Kent’s Com. 460, 461 ; 9 Porter, 10; 13 Peters, 65; Minor’s Rep. 388,14 Peters, 129; 4 Porter, 128; 20 Johns. 202; 17 lb. 519; 10 Wheaton, 383; 6 Peters, 172-, 202; 7 Peters, 435; 2 Johns. Ch. Rep. 355.</p> <p>7. The Philadelphia contract, and the bond and mortgage made in pursuance thereof, are all payable in New York, and void by the laws of New York, which, govern the whole contract.</p> <p>The New York interest law, avoids all contracts for more than seven per cent.</p> <p>By the laws of New York, the principal as well as the interest is forfeited.</p> <p>The debt governs the mortgage, as to its validity, because the debt is the principal, and the mortgage is the incident.</p> <p>The legal policy of Alabama is to restrict Banks to six per cent, interest — Const. Ala.; Clay’s Dig. 284; i Stewart, 299; Clay’s Dig. 590, § 4, makes all usurious bonds void.</p> <p>An usurious security, and every thing which is a furtherance of it, is void — 2 Peters, 527; 9 Mass. 49; 1 Hall’s N. Y. Rep. 546-7, 553; S Term Rep. 390; 20 Johns. 285; 10 lb. 195; 3 Term Rep. 537; 2 Starkie’s Rep. 211; 6 Cranch, 199; 6 Wheaton, 593; 2 Randolph, 465; 19 Johns. 1; 1 Wendell, 56; 2 Co wen, 678, 712 ; 3 Wendell, 574, 5S2 ; 10 Wheat. 367.</p> <p>' There is no distinction between lending and discounting — ■ 5 Law Library, 59; Comyn on Usury, 156; 1 Hall’s N. Y. Rep. 556-7; 6 Cowen, 294; 2 Peters, 533, 537,538.</p> <p>As to the hazard of the debt — 5 Com. Law Rep. 15 ; Comyn on Usury, 39. 1</p> <p>S. The loan of the money to improve the real estate creates no lien on the property. The corporation has no authority to do so by its char ter.</p> <p>The loan was under a special contract, which was usurious, and it must rest on that contract, and cannot be separated from it.</p> <p>It was in violation of a statute law, the law of the charter, and a violation of a statute law places it on ground different from the violation of the common law, it makes all void.</p> <p>A contract is an entire thing, and cannot be separated. This was connected with other matters of unlawful stipulation.</p> <p>The bill is not framed so as to assert such lien, if it did exist. Nor are the proper parties here to try it. Those who did the work, and were not paid, would be preferred, and they are not made parties.</p> <p>9. The contract being void, it cannot be purged by restoring-part of the money, and if it could, the money is not restored to the proper party.</p> <p>Though a new contract, free of usury, would be valid, it must be a new one, and all the old securities or contracts must be cancelled and destroyed.</p> <p>If it could, the money must be paid to the proper party, bona fide, and not fraudulently paid to a third person. And such new contract must be made with a party who has authority to make such new contract.</p> <p>If the contract be void in part, it is void for the whole — 1 Coin. Law Rep. 264; I Hall’s N. Y. Rep. 553; 5 Taunton, 780; 8 Johns. 197; 20 Johns. 285; 8 Term, 390; 9 Mass. 55; Cro. Jac. 508; 1 Term. 201; 4 Campbell, 157.</p> <p>That'the contract is void, though not so expressly declared by statute — 2 Peters, 527; S Ohio; 13 Connecticut Rep.; 17 Mass. 281, and authorities cited.</p> <p>10. Taking the deed to Co wperthwaite, Dunlap & Cope, does not help the Bank. It was a device merely, and the Bank cannot do indirectly what it cannot do directly. [2 Cowen, 711.]</p> <p>11. If the mortgage was good it cannot be foreclosed, because it is merged in the title now held by the complainant, and the debt is extinguished, and it can no longer be considered as a mortgage to be foreclosed.</p> <p>By the contract with Mrs. Hitchcock, the bond debt, and all the bills and notes on which it was founded, were surrendered to her, on the 10th February, 1840, in consideration of delivery of possession by her.</p> <p>The land is conveyed by Cope, &c. to Dundas, in fee simple. But the debt, or bond, is not assigned to them, and could not he, because it was previously released and cancelled. There is, then, no pretence that Dundas, &c., have a title which can be foreclosed as a mortgage. They have a fee simple, or no title, and the redress is at law.</p> <p>Banks are bound by the statutes against usury — 3 Peters, 42, 36; 9 Mass. 49; 9 Peters, Waggoner v. B’k U. S.; 5 Randolph, Stribly v. Bank of Valley; 11 Wheat, 412; 15 Johns. 358, 381 ; 13 Conn. 249; 12 Peters, 135; 2 Hill, 267. And t'he policy of the law is to watch them narrowly, 2 Cowen, 755.</p> <p>Release of the debt is a release of the mortgage — 1 Powell on Mortg. 144, 145, note 1. And where the debt and mortgage are separated, the mortgage becomes void. Powell on Mortgages.</p> <p>Taking a mortgage in another State does not change the contract. The debt is the principal, and the niortgage is but the security and incident — Story Confl. Laws, 287; 10 Wheat. 367 ; 2 Vernon, 395; 2 Atkyns, 382; 2 Kent’s Com. 460.</p> <p>The residence of parties is never taken into view, in construing contracts, either in England or America — Story’s Confl. Laws, § 279; 3 Conn. Rep. 253; 2 liar. & Johns. 193, 228.</p> <p>12. The will of H. Hitchcock, gives a power merely, but does not devise.</p> <p>The will which devised, was made long before the testator’s death, and such a will does not pass after acquired lands.</p> <p>The codicil last made, reduced the authority to a power merely, and extended the power to after acquired lands.</p> <p>The codicil controls the will and destroys the devise, and qualifies it so as to leave a power merely.</p> <p>It is not shown that these lands were acquired by Hitchcock before the date of the will; this is not charged in the bill, nor , proved, therefore it does not appear they are devised lands; and there is no showing of title in Henry Hitchcock, before the making of the mortgage.</p> <p>13. The devise to Mrs. Hitchcock was made to her as executrix, and is connected with her administration of the estate, and she takes as executrix, and not as trustee. Without qualifying, the trust does not operate. Her renunciation of the office defeats her title, ab initio.</p> <p>A codicil controls the will, and after acquired lands don’t pass by a will. The fourth codicil reduces the devise to Anne H. to a power — Butler v. Leavens, S Porter.</p> <p>The devise attached to the office of executrix, and not to Mrs. H., independent of the office of executrix — 1 Lomax on Ex. 364, 361; 11 East, 288.</p> <p>In England, executors can act before probate, and his acts are valid; not so here — he must give bond. The title of the devi-see in England, does not require probate, as to land. It is held by the will alone, which can be proved on an ejectment, as a deed or title. Not so here. Probate is necessary to a will of lands, and County Court has jurisdiction as to probate of lands. 1 Lomax on Ex., 82, 83,86,87; 4 Munford, 200.</p> <p>Renunciation of devise avoids it, and puts the heir in posses-session, by descent, by relation back to time of death — 1 Lomax on Ex. 361, 362, S3; 14 Vesey, 434; 3 Lomax 117, No. 21.</p> <p>All devises ¿sre void as against creditors, and against the administrator, when the personals are exhausted, whether it be a devise, a trust, or any other. All must yield to the title of the administrator, like bequests in England, because placed on the same footing — Clay’s Dig. 191, § 1, lands charged by law; 192, § 2, where estate insolvent; 224, § 16, §20, Petition for sale; 220, §§ 1, 2, 3, bond required; 226, § 27; 197,§27; 199, §2; 598, §14.</p> <p>14. If Mrs. Hitchcock was a devisee under the will, it was a devise in trust, and for all the creditors and legatees.</p> <p>The terms of the devise are, that after the payment of all just debts, she shall pay legacies out of the proceeds.</p> <p>Just debts only were to be paid, and afterwards legacies.</p> <p>Usurious debts are not just debts, and cannot be recovered against the rights of the heirs and legatees.</p> <p>Even among just debts, no one could claim precedence over others.</p> <p>15. The deviséis defeated by the appointment of an administrator, the insolvency of the estate, and petition for order of sale of lands.</p> <p>Lands are here legal assets, as well as personal property, after the personal property is exhausted. The law subjects them, independently of the will of the testator. And the right of the administrator over them, is paramount to the will of the testator, the law compels their application to pay debts.</p> <p>No devisee can acquire a title without the consent of the administrator ; like chattels real, lands are assets when necessary, and are put on the same footing by our laws.</p> <p>The title of the devisee, like that of the heir, is divested by relation back from the date of the decease, when required to pay debts, and all intermediate conveyances, by the heir or de-visee, are avoided.</p> <p>There cannot be two representatives of the deceased, with power to recognize or pay debts, because no such thing exists in this State, as equitable assets. The whole estate must be settled in the Orphans’ Court, by the administrator, and that Court has jurisdiction of the whole assets.</p> <p>An administrator could not, by our law and decisions, sell the land, and pay the mortgage debt. He must sell the land subject to the incumbrance.</p> <p>From the moment the administrator petitions the Orphans” Court for the sale of lands, his right springs into active existence, and the title of heirs and devisees must yield.</p> <p>Devises are void when they contravene the policy of the law, and fail when they become unlawful. Powell on Devises, 426, 434, 443, 471; Sugden on Powers, 106.</p> <p>As to the power of executors — 1 Lomax Ex. 82, 219, 220, No. 5; 3 Stewart, 489; 2 Porter, 33; 3 Porter, 221; Sugden on Powers, 106 ; 8 Porter, 394; 1 Ohio, 101; 1 Yeates, 422; 3 Lomax Big. 272 to 276, 278 ; 3 Leigh, 12; Powell on Devises, 426, 434, 471.</p> <p>An executor with power to sell cannot exchange. 1 Ohio Rep. 104.</p> <p>In Alabama, an executor has no power before probate — 3 Stewart, 489; 1 Lomax, S3; 4 Munford, 194.</p> <p>An executor or administrator can make no contract to bind the heirs — 2 Porter, 33; 3 Porter, 221.</p> <p>The heir may resist the sale for the payment of unlawful debts — 2 Ala. Rep. 660. May shew debt barred. ■</p> <p>16. The deed made by Mrs. Hitchcock to the Bank was a breach of the trust, created by the devise. Because it was a void debt which was paid. Because one single debt was paid, to the defeat of ail others. Because a right worth at least $150,000 was released, without any benefit to the estate, but by placing the funds in the hands of a stranger, from whom the heirs, legatees and creditors have no security. Because it was an attempt to conceal that fund, so that it could not be reached, and the Bank lent its aid to this purpose. Because that sum was not the full value of the equity of redemption. Because the will gave the power to sell, but not to release and abandon, and the power must be strictly pursued. Because it was expressly agreed Mrs. Hitchcock should not qualify.</p> <p>The party receiving the deed had full notice of all this illegality, and even if they had not, it would not be material. A party dealing with a trustee, must look to the power, and must even see to the application of the purchase money.</p> <p>That the deed from Mrs. H. is a breach of trust, see authorities in the printed brief of Mr. Yerger.</p> <p>As to disposing of the money in the hands of the receiver — ■ I Ala. Rep. 109.</p> <p>17. The agreement, as set out in the bill and proof, and relied on, was void, as against the administrator, the heirs, and Mrs. Hitchcock, for fraud.</p> <p>Mrs. Hitchcock received nothing, and there is no proof that she knew that any money passed.</p> <p>Mrs. Hitchcock is in no manner connected with the contract made with James Erwin.</p> <p>The complainants are estopped from saying they contracted with her, or that they paid her the $150,000, because the contracts are exhibited by three deeds, and they are conclusive of the facts.</p> <p>The deed signed by Mrs. Hitchcock, recites the consideration for it, as being, the sum of $773,452 23, which is the amount of the bond, the interest on it, and incumbrances on the land paid off. But excludes the sum of $150,000.</p> <p>The deed of release, or receipt given by the Bank, where the Bank debt is surrendered, recites the delivery of possession of the property to the Bank, excepting,.expressly, the eight stores, which are recited as in the possession of James Erwin.</p> <p>The deed of the eight stores, from Erwin, recites $150,000 as the price of the sale of Erwin’s rights, to the Bank, for those eight stores. Even according to their own account, they were paying, in full, James Erwin’s debt, and concealing the fact, and the fund, from the other creditors and heirs.</p> <p>Isaac H. Erwin was no party to that agreement, and knew nothing of it, and when informed of it, he offered to resign, but would not execute it. It would have been a violation of his duty to do so.</p> <p>The heirs are not bound by that agreement, they receive no benefit, because the application of the money paid was not secured to be applied to the payment of debts, but was misapplied.</p> <p>The arrangement for a friendly administrator, a friendly decree, and a friendly concealment of the facts, was a gross fraud, attempted to be used by the Bank to secure them a benefit, and no party to this record was a party to that fraud, except the complainants.</p> <p>Chancery cannot be made use of to conceal frauds, and se- . cure collusive agreements, nor can a Court be forestalled with impunity.</p> <p>IS. The dower right of Mrs. Hitchcock must be protected, and it must be so declared, to prevent surprise, even were the title of the complainants available.</p> <p>The bill does not seek to condemn the dower right of Mrs. Hitchcock, it is not put in issue, and cannot be condemned by implication.</p> <p>Dower is favored by the law, and never treated lightly, and never destroyed or impaired, except by express acts.</p> <p>The malting of Mrs. Hitchcock a party, was improper and unnecessary, and if to litigate her right of dower, is improper. The bill contains no averments putting it in issue, and no surprise will be permitted. Any decree on this bill, in any event, must be “withoutprejudice” to Mrs. Hitchcock’s individual rights.</p> <p>19. Mrs. Hitchcock is not divested of her dower in the land in controversy.</p> <p>Her joining in the deed of mortgage was before the passage of the statute on that subject, and the effect of that deed, as to her, stood as at common law.</p> <p>At common law, dower would not pass by the deed of the wife, she being a feme covert, and dower being an estate not in existence during the life time of the husband.</p> <p>A dower right cannot be conveyed by joining in a deed made by the husband. There must be appropriate words in the deed to pass the dower right. It did not, therefore, pass by the deed.</p> <p>■ The release of dower on the back of the deed, did not pass the dower, because there was no acknowledgment of that release, such as the statute required; the acknowledgment is of the mortgage deed, jointly made, by the husband and wife; but is not of the release of dower,</p> <p>The deed of release made by Mrs. Hitchcock to the Bank, was in her fiduciary capacity, as a devisee of Hitchcock, and expressly made under the powers under the will. It purported, and was intended, to pass the right of the testator, and not her individual right.</p> <p>The deed cannot be construed as her release of individual right by implication ; no dower can be lost by implication.</p> <p>The deed will be construed by the consideration. There was no personal consideration. The consideration was a release of the debt of the deceased, and was beneficial to the estate, not to her. Her dower was a title superior to that of heirs, legatees or creditors.</p> <p>The money paid, was not paid to her, nor for her, nor under her control, if it was to pay debts with. Nor was the money paid for her private benefit, and she has no connection with that payment, nor James Erwin’s acts, nor the promises of the Bank to James Erwin.</p> <p>The individual release of Mrs. Hitchcock was not necessary to pay the debt, as the title of the deceased to the lands was, as it appears, of greater value than the debt.</p> <p>The debt was extinguished with the means of the estate, that would have released the dower, if even it had been originally pledged.</p> <p>A release of dower, or a mortgage, is not an absolute release; a discharge of the debt restores the dower right.</p> <p>And a release of the debt, or purchase of the equity of redemption has the effect to restore the dower.</p> <p>Where the widow relinquishes the provision made for her in the will, within one year after probate, it entitles her to dower. She did so. She had entered into no contract preventing her from so doing, and never received any thing for her dower.</p> <p>17. The devise having failed of effect, by the non-acceptance of the executorship and renunciation thereof, or of the power to sell lands, the heirs are in by descent; and entitled to all the rents, until a sale, whether mortgaged or sold under order of the Orphans’ Court.</p> <p>18. The decree is improper in itself, even if complainants were entitled to a decree.</p> <p>The Court cannot render a decree imperfect in itself, or in the alternative, and to becbme effectual by a declaration of record, to be made by one party in vacation.</p> <p>The act'of a party can never be a decree, or a part of a decree. The Court must pronounce its action upon the act of the party, and declare it to be a sufficient election.</p> <p>The authority of the counsel to make the election, is not ascertained without an act of the Court. Nor does it appear who made it, nor by what authority it was made.</p> <p>No absolute foreclosure can be decreed; there are infants concerned, and there must be a reference to ascertain how much is due, and how much, and what, shall be sold, and how sale shall be made.</p> <p>The rights of infants must be saved; they may redeem when they come of age.</p> <p>The terms of the mortgage require, that the Bank shall pay the previous incumbrances on the land, and that the first proceeds of sales shall be applied to pay them.</p> <p>The rent or profits in receivers hands, are not applied in part extinguishment of the mortgage.</p> <p>The bill is to foreclose a mortgage, and the decree treats it as a bill to try the title to land, and 'a recovery is had, and damages, or rents, from the day the plaintiff’s title accrued.'</p> <p>No credit is given for funds belonging to the administrator, shown, by the proof, to be in the hands of the Bank.</p> <p>The decree is confined to all the rights and claims of the complainants, and respects none of those of the defendants ; even those admitted by the complainants contracts and proofs. Yet they are infants under the care and guardianship of the Chancellor.</p> <p>The refunding bond required is too small, and is void, because taken before the decree was made. It is for less penalty, even, than the assets in the receiver’s hand, and they are required to be immediately paid to the complainants.</p> <p>in addition to other arguments on several points of the case, submitted the following:-</p> <p>The State of Pennsylvania for objects, which she deemed important, granted the charter of the Bank, and conveyed by it such a measure of power as her legislature thought would be sufficient to accomplish them. The Bank had no power, but that, which was granted or might be necessary to carry such power into effect. [Angel & Ames on Cor. 66, 67; 4 Ala. Rep. 558; 13 Peter’s Rep. 587.] The section which prohibits the Bank from taking interest at a rate exceeding 6 per cent, per annum upon her loans and discounts in the State of Pennsylvania, contains a grant of authority to take interest at the rate mentioned upon such loans and discounts, and it is the only grant of authority upon the subject in the charter.</p> <p>If to the power given to deal in bills of exchange, lend money, and discount bills and promissory notes, no express authority had been added to take interest on any of these operations, the Bank would have had no right or capacity to take more than the lawful rate of the State of Pennsylvania. In such a case the source of her authority to take any interest, would be in the grant of power to do the acts, upon which all persons in that State have the right to take interest, and in the necessity to charge the lawful rate to enable her to carry into effect, the powers which were expressly granted by the charter. The implied power to take interest in the case supposed, would be limited to loans and discounts made in Pennsylvania. If the words in the charter limiting the Bank to 6 per cent, per annum on the loans and discounts she might make in Pennsylvania, had been omitted as to that State, the same limitation would be implied. The charter is a law of that State, and like her general law in relation to interest, and every other enactment of her Legislature, is impliedly limited to the territory, for which the State has power to legislate. It is contended for the defendants in error, that the forbearance of a debt is not a loan or discount. If this position be true, the Bank had authority to take or reserve interest at the rate of 6 per cent, per annum for the forbearance of a debt granted in Pennsylvania, because the general law of the State in relation to interest, allows this rate, and the power to take interest according to that law, would be implied in favor of the Bank, as it would be necessary to enable her to carry into effect, the powers, which were expressly granted by the charter. Upon a loan or discount made in Pennsylvania, the Bank had no authority to reserve the rate of interest of Alabama, by making the note or bill payable here. For granting in Pennsylvania a forbearance of a debt, the Bank had no power to reserve interest at a rate exceeding 6 per cent, per annum; if such forbearance be a loan — a higher rate of interest would be a violation of the charter, or if it be treated as something different, a higher rate would be a breach of the law of Pennsylvania against usury. Pennsylvania had the power to give the Bank capacity to act within the limits of that State, and to prescribe the extent of that capacity. If the charter had prohibited the Bank from doing any act beyond the territory of that State, any thing done by her in'another State would be void. But although Pennsylvania had no power to authorize the Bank to exercise the power she derived from the charter in any other State, yet the exercise of them would be valid in any other State, the comity of which permitted it. From the power to deal in bills of exchange, and take a specified rate of interest upon loans and discounts made in Pennsylvania, the assent of that State must be implied to the exercise of the powers granted by the charter wherever comity allows it. The charter does not prescribe the rate of interest which the Bank may take upon the loans and discounts she might make, or reserve upon a forbearance of a debt she might grant in another State. The Bank therefore had no power that was expressly granted, to take interest any where at a higher rate of interest than 6 per cent, per annum. The action of the Bank was intended mainly, to be in Pennsylvania, and no power can be implied in her favor, to be exercised in another State upon the ground, it is necessary to accomplish the objects for which she was established, that could not be exercised in the State which granted the charter; she had no power either express or by implication, to take upon a loan, or discount, or forbearance of a debt in Pennsylvania more than 6 per cent, per annum, and therefore had no power from either source to take a higher rate of interest in such cases any where. The powers, express or implied, granted by the charter, of which the right to take, or reserve interest, is a part, and which the Bank was authorized to exercise in Pennsylvania, and not prohibited from exercising wherever comity would permit, were thought by that State, sufficient for the accomplishment of the objects she had in. view in establishing the Bank.</p> <p>The validity of any act of the Bank in Alabama depends upon the comity of the State. Comity enables a corporation created by another State, to exercise here such of the powers, which were granted by the charter, as do not interfere with the policy or laws of Alabama; but comity does not and cannot make any grant of power to the corporation. If, by her charter, the Bank had no power to take more interest than 6 per cent, per annum, upon a loan, discount, or the forbearance of a debt, the exercise of comity here cannot give such power, or authorize her to take or reserve a higher rate of interest upon a loan made, or a forbearance granted in this State. The power which comity permits to be exercised, is such only as was granted by the State of Pennsylvania, in the charter to the Bank. Comity is nothing more than the recognition of the law of another State, and consequently of the power which the law or charter gave the Bank. [See 13 Peters, 590; Ang. & Ames on Corp. 206; 14 Peters, 122.] But for the existence of comity, no corporation which had not been created by the Legislature of this State could exercise any power here. If the effect of comity were greater than I have admitted, power could be exercised in Alabama by a corporation, without any legislative grant of such power from this or any other State. Charters can neither be granted, nor amended, by the exercise of comity.</p> <p>If the exercise of comity could give power to take a rate of interest which the charter did not, the Bank would obtain as many grants of power from comity as there might be States, in which she acted, and a different measure of power in relation to the rate of interest from New York, Alabama and Louisiana. The power in this respect, obtained from each of these three States, would be different and greater than that on the same subject, which was granted by Pennsylvania ; the only State that ever determined it was proper to grant the charter, and what powers ought to be conveyed by it, to accomplish the objects for which the Bank was established by that State. If additional grants of power were the results of the exercise of comity, the powers of a corporation could never be ascertained from its charter. They would depend at any time, both upon the charter, and the laws of every country, where, with the permission of comity, the Bank was acting at such time. If her powers were ascertained from these sources, upon any particular day, the knowledge of them thus acquired would be no barrier against the enlargement of them. She might afterwards do business in some other State, where she could acquire, from the exercise of comity, greater power than she had before.</p> <p>The measure of power granted by a charter cannot be diminished by the Legislature which granted it, without the consent of the corporation, unless the right to do so were reserved by- the act of incorporation. All the corporate power the Bank had, was given and secured to her by a contract. The charter was a contract between Pennsylvania and the stockholders of the Bank, and that State was incompetent to do any act, which would impair any right the charter gave. Although all the corporate power the Bank had was placed by the inviolable character of the contract which conferred it, beyond the reach of the action of the legislature of Pennsylvania, yet the Bank would have no right to take, upon a loan she made iti Alabama, interest at the rate of S per cent, per annum, after this rate had been reduced by law to 6 per cent. The charter gives no power to take interest at the higher rate which has been mentioned, and Alabama was competent to reduce the rate. The reduced rate would be the same which is specified in the charter, and there would surely be no pretext for claiming a right for the Bank to take S per cent, interest on her transactions in this State, upon the ground that while the rate was 8 per cent, she had exercised the power in the name of comity to take it. But if the power to take 8 per cent, here, before the supposed reduction, had belonged to the Bank, it would be as inviolable and as perfectly protected against any alteration, as any other power of the corporation. According to the effect we ascribe to comity, the powers of the Bank would be at all times the same, whether in the enjoyment of the permission from comity to exercise them in all the States, or confined to Pennsylvania, which granted her charter, by legislative prohibitions in each of the other States, against the exercise of her power in any of them. As the charter was a contract with Pennsylvania, the power given by it could not be impaired without the consent of the Bank, but the other States could lawfully suspend or abolish the comity, which allowed her to exercise her powers within their territory. Upon any other principle than the one we maintain, to ascertain the powers the Bank may exercise in this and other States than Pennsylvania, her power, as to the rate of interest, for instance, that she may take, would be different in different States, and might be different in the same State at different times.</p> <p>■ As the Bank derived no capacity from her charter to make a contract for more than 6 per cent, interest, the bond in this case, upon which interest at the rate of 8 per cent, per annum was reserved, is void.</p> <p>• An act of the legislature of the Territory of Alabama, which was passed on the 13th of February, 1818, authorized conventional interest at any rate, to which, parties to a contract might agree, and in the absence of a stipulation upon the subject, it prescribed 8 per cent, as the rate. In the act it was provided that nothing contained in it should be so construed, as to make it legal for any Bank to receive more than at the rate of 6 per centum, per annum upon its loans and discounts. [Toul-min’s Dig. 143, 144.] By an act of the 17th December, 1819, the authority to take more interest than at the rate of 8 per cent, per annum, was revoked. [Toulmin’s Dig. 444.] The prohibition against the receipt, by any Bank, of more interest than at the rate of 6 per cent, per annum, has not been repealed. By the authority of the legislature of Alabama, it was published as one of the laws of the State in 1833, in Aikin’s Digest. [See page of the Dig. 226.] By the same authority it was re-published in 1843, as a part of the statute law in Clay’s Digest. [See page of the Dig. 284.] At the date of the act of the 13th of February, 1818, The Planters’ and Merchants’ Bank at Huntsville, and The Tombeckbee Bank, both had charters. The legislature, when that act was passed, believed it was for the public good, therefore made it the law of the country, that no Bank should take more interest than at the rate of 6 per cent, per annum, while it was thought to be the best policy, and therefore authorized by statute, that persons who entered into contracts might take any rate of interest, upon which they agreed. The Planters’ and Merchants’ Bank of Mobile was established by an act of the legislature of Alabama, of the Sth of January, 1836. It went into operation and held the corporate powers which, were granted by its charter, till the 13th of February, 1843. During the whole time it exercised its powers, it was prohibited from taking interest at a higher rate than 6 per cent, per annum. [Aik. Dig. second ed. 596; Acts of the General Assembly of Alabama, passed during the session of 1842-43; see pamphlet acts, 70.] While individual parties to contracts were authorized to take, or reserve any rate of interest upon which they agreed, Banks, (of which there were then two in the Alabama Territory,) were limited to 6 per cent. only. How much more mischievous than they were, would have been the consecpiences of the act of 1818, if the doctrine asserted by the defendants in error be true ? A Bank confined by the policy and law of the State, that granted its charter to the same moderate but ample rate of interest to which our own Banks were limited, could, in doing business here, have set the provisions of our statute law in relation to Bank interest at defiance, reserved conventional interest at the rate of 120 per cent, per annum, and required that as well as the principal, to be paid at New York, or at her own door in Philadelphia. The enormous rate I have mentioned was frequently reserved by contracts between individuals, under the act of 1818. A grant of authority to take, or reserve interest, at a rate, at the bare mention of which, Pennsylvania, had she been asked to make it, would have been shocked, could have been acquired here from comity, if the doctrine affirmed for the benefit of the Bank, can be maintained.</p> <p>The rate of interest which the stock Banks of Alabama had a right to take, has been constantly less since the act of 1S18, than individuals have been authorized to accept or reserve. The three Banks which have been mentioned, were all subject, as long as they exercised corporate powers, to the restriction, from which the Bank of the United States claims exemption. Since the existence of the restriction, there has always been some Bank established by the authority of Alabama, subject to it. During the time in which the transactions occurred between Hitchcock and the Bank of the United States, the Planters’ and Merchants’ Bank of Mobile was bound by the restriction. The Bank of Mobile is subject still to the restriction upon all promissory notes she discounts, having less than six, or more than twelve months to run. Before the act of 1834, she was bound by the restriction in relation to the promissory notes she discounted, without regard to the time they had to run. [Clay’s Dig. 130, § 18.]</p> <p>Comity does not require of Alabama to permit the Bank, which is a party to this suit, or any other foreign Bank, to take a higher rate of interest than her charter authorized, or she would be entitled to in Pennsylvania, and higher also than stock banks of the State, were permitted to take when the Bank of the U. States reserved the interest she claims. The policy of Alabama, in regulating bank interest, and her law prohibiting the taking of more than 6 per cent, per annum, have both been violated by the Bank of the United States. The bond and mortgage in this case, are void, because the statute prohibited the rate of interest reserved in the bond and secured by the mortgage. Although the act neither inflicts a penalty nor declares a contract void, by which interest was reserved in disregard of the prohibition of more' than six per cent, per annum, yet such a contract is void, upon geueral principles. Against the prohibition, the Bank had no capacity to make a contract in Alabama, for interest, at the rate of eight per cent, per annum. [2 Peters’ Rep. 527; 7 Eng. Com. Law. Rep. 121; 12 Eng. Com. Law. Rep. 222; 17 Eng. Com. Law. Rep. 355; 8 Ohio Rep. 13 Conn. Rep. 258, 280,289; 17 Mass. Rep. 281; Chitty on Con. 232.]</p> <p>As there was no capacity in the Bank to make a contract for interest at the rate of eight per cent, the bond is void for the part which relates to the interest, and being void in part, is void for the whole. [1 Com. Law. Rep. 264; 1 Hall’s N. Y. Rep. 553; 5 Taunton, 780.]</p> <p>The bond and mortgage are void, because they are usurious by the laws of New York, where the bond on its face is payable.</p> <p>A loan made in Canada, for instance, where the rate of interest is six per cent, per annum, payable in England, where it is five per cent, only, will bear interest at the rate of five per cent, after the maturity of the note or bond, which was made as evidence of the debt. It would bear the English rate of interest, although the debt should be secured by a mortgage on real estate in Canada, or Louisiana, because it was payable in England. [20 Johns. Rep. 102; Story’s Conflict of Laws, 242, 243, 244, 2d ed., and § 291, 293.]</p> <p>If the loan made in Canada, be secured by a note payable in England and reserving interest from the date without specifying the rate, the holder of the note will be entitled to interest according to the English rate.</p> <p>The interest in such a case, as well as the principal, is of the substance of the contract, and the whole contract, as well the part for the interest as that relating to the principal, is payable in England. The validity and extent of the obligation of each part of the contract must be tested by the law of England. Why is New York interest as damages allowed upon a note not paid when due, made here, and payable at New York, by which no interest, before maturity, was reserved, and none stipulated for afterwards. Because the whole contract is to be performed in New York, and the consequences of a failure to perform it, ought to be determined according to the law, in reference to which, the parties made their contract. That they made their contract in reference to the law of New York, the note in such a case would prove.</p> <p>If a note made in Alabama, were to reserve interest from the date, without specifying the rate, and make both payable in New York, the fact appearing from the note, that it was payable in that State, would prove that the entire contract was made in reference to the law of New York, and the law of that State should be resorted to, to ascertain the rate, as well as the validity of the reservation of interest.</p> <p>If the parties to such a note took one step more, and specified the rate of interest which, with the principal, the note required should be paid in New York, there would be as much proof, and of the same kind, as there was in the other two cases, which have been stated, to show the parties made the contract in reference to the laws of New York, and the same legal principle that has been referred to, would require the validity of the rate of interest, which was reserved, and the eifect of the reservation upon the whole contract to be determined by the law of New York.</p> <p>In each of the three cases, which have been stated, there is proof of precisely the same amount and kind, to show that the parties in each case, made their contract in reference to the law of New York, and as in the absence of all other evidence, it must be acknowledged, it would be conclusive to prove that the two first mentioned notes were made in reference to the law of that State, no reason is perceived why it should not be permitted to prove the same fact, in relation to the last note.</p> <p>If a note made in New York, and payable there, or if legally payable there, because it appointed no place for payment, reserved more than the legal rate of interest of that State, it would be usurious and void. The facts appearing from the note itself, that it was made there and not payable elsewhere, would be proof that it was made in reference to the law of New York, and upon such evidence, it would be held to be a violation of her law against usury, and therefore, illegal and void. As both the principal and interest due upon the bond to the bank, were payable in New York, the proof is as clear and strong as it would be in the last case mentioned, that the parties made the contract in reference to the law of New York ; and the interest being more than is allowed there, the contract is usurious and void. [Story’s Conf. Laws, pages, 244, 250, 352, § 293, 294, 301, b. 301, d. 304, f.; 13 Peters’ 67, 77, 78.] A promise in a note to pay interest from the date of it, at a specified rate, is an obligation, if one at all, to pay the same rate till the principal may be paid, or the contract merged in a judgment. If the principal, and a specified rate of interest be payable in New York, it must be determined accordingly to her laws, what is the effect of such a rate of interest upon the contract, and whether the rate specified can be legally required after the maturity of the note, and for a failure to perform what was contracted to be done in that State. Upon a note made here and payable here, in which a rate of interest was fixed and made to accrue from the date, interest according to the specified rate, could be recovered after a failure to pay down to the time of judgment. The recovery of interest would not be of the specified rate, in virtue of the contract until default of payment, and afterwards ex mora, till the judgment should be rendered, as if there were no contract to regulate the rate of interest from the maturity of the note till it was merged in a judgment; but all the interest that had accrued before the judgment, would be recovered in virtue of the contract, and according to the rate specified in it. That the rate which would be recovered in such a case, after the maturity of the contract, and till judgment upon it would not be “ ex mora” is proved by this, that if the rate fixed were five per cent., five per cent, only till judgment would be recovered. But if a contract specified no rate of interest, the rate allowed upon one made and to be performed here, after maturity, and as damages for non performance, is eight per cent. The interest specified by the bond in this case is eight per cent, per annum. If it can be recovered at all, it must be recovered at this rate, from the time appointed by the parties for it to accrue, till a judgment or decree shall be rendered upon the bond. A judgment or decree for interest according to this rate, would be for more than the New York laws, against usury, allow. [20 Johns. Hep. 102.]</p> <p>A note made in Alabama, and payable in Louisiana, might be valid, although it reserved from its date interest at the rate of ten per cent, per annum, (which is the highest Louisiana rate,) till payment. In the absence of all other evidence than the note, it would be sufficient proof that the parties made it in reference to the laws of Louisiana, and upon such proof the note would be judged valid, because it would be shewn it was made according to the laws oí that State. [Story’s Conñ. Law, 246, § 296.] The doctrine, that if both the law of the actual place of contract and of performance, be not violated, the contract is valid is modern, and has found as yet but few advocates, either upon the judgment seat or elsewhere. It seems to have no other foundation than the interest of creditors. If one were to become a creditor by a written contract, made in this State, by which his debtors acknowledged themselves to be indebted to the payee in the sum of ten thousand dollars, seven thousand dollars of which they promised, in the contract, to pay in New York, upon an appointed day, with interest at the rate of eight per cent, per annum, from the date of the contract, and the other three thousand, with interest from the same time, at the rate of ten per cent, per annum, was payable1 in Louisiana ; if he secured the whole of the debt by a mortgage upon real estate in Alabama, and after default in payment, sued one of the debtors for both sums, and the interest, who should file a plea of usury, alledging that the contract was made in this State, and therefore the reservation of interest at the rate of ten per cent, per annum, upon the sum of three thousand dollars, was a violation of the laws of Alabama against usury, and the interest upon both sums usurious, as there was but one contract, which was corrupt in part, and void therefore, for all the interest; the creditor would be entitled to a verdict, upon an issue on the plea, if there were no other evidence than the written contract. The contract would be sufficient proof that the parties made the contract for the three thousand dollars and ten per cent, interest, in reference to the laws of Louisiana, where this part of the contract was to be performed, and where the interest at the rate of ten per cent, per annum, is lawful; and as no plea put in issue the validity of the obligation to pay interest at the rate of eight per cent, upon the $7,000 made, by the contract, payable in New York, no question could arise, in that suit as to the usurious character of the eight per cent, interest, because it was more than the laws of New York allowed. After such a verdict and judgment in his favor, the crcditor might sue the other debtor upon the same contract; if he did the defendant could not doubt his right to a defence. He might file a plea of usury, alledging that the $7,000 and the interest reserved thereon, were made payable in New York, whose laws declared any rate of interest exceeding seven per cent, per annum usurious, and made all contracts tainted with usury, void. According to the judgment of the Court against the first defendant, the second would have sufficient proof, the proof afforded by the written contract, to shew that the parties made the contract in relation to the $7000, and the interest, reserved upon it in reference to the laws of New York. He would therefore be able to shew, by the samé kind of evidence, that had been held sufficient to prove in the first case, that the other part of the contract was made in reference to the laws of Louisiana, which allowed it, that this part of the contract was made in reference to the laws of New York, where such a rate of interest was usurious, and made the contract in which the interest was reserved, void. With such proof, and such a decision as to the effect of the evidence, his defence would seem to be impregnable. But according-to the new international law, to which the defendants in error insist, the old must yield, the creditor would be entitled, in effect, to elect whether the law of the place where the contract was made, or of that where it was to be performed, should determine the validity of the contract, and the extent of its obligation. Guided by his interest, he would, in the last case, elect that his contract to pay 07,000 and interest, at the rate of eight per cent, per annum, in New York, should be governed by the laws of this State, where the contract was made. In the first case, the law of the place of performance was applied to the contract by which the creditor’s interest was secured, but if that law would injure him, he may, according to the rule, take the benefit of the law of the place where the contract was entered into. He may, in such a case as the last which was supposed, disregard the proof that was deemed sufficient to shew the parties made the contract in reference to the laws of the place of performance, and would shew the same fact again, if the effect of evidence were allowed to be uniform. If proof that the parties made the contract in reference to the law of a particular place, be disregarded, why not give the debtor the right to elect between the lex loci contractus and the lex loci solutionis instead of the creditor. His election dictated by his interest, would be as competent and credible proof against the evidence afforded by the written contract of both parties, as the creditors. [Story’s Confl. Laws, 246, § 296.]</p> <p>If a creditor were to take a note in his favor in this State, and secure the debt due to him by a mortgage upon real estate in Louisiana, with interest, at the rate of ten per cent, per an-num, and the note was not payable in that State, the Courts here must hold it to be a usurious contract under our laws. A note bearing such a rate of interest, made in New York, not payable in Louisiana, but secured by such a mortgage upon real estate in Louisiana, would be a violation of the usury laws of New York. It is a singular specimen of comity to uphold a contract made here to accomplish an object in New York, which could not be attained, if the same contract had been made as well as payable there, and which could not be accomplished in this State, upon a contract made here, to secure the payment of more interest than the laws of Alabama allow. [Story’s Confl. Laws, 238, §287.]</p> <p>The first question is, where was the contract made in contemplation of law ? We say in Alabama. This appears from the facts. Hitchcock is under liabilities in Alabama, either as drawer, indorser, or acceptor, of certain bills of exchange, held by the Bank of the United States. He resided in Alabama, and it was his only place of business. If the liability grew out of the drawing or indorsing of bills payable out of this State, his indebtedness arose in Alabama, on the failure of the parties anteriorly liable on the bills. If his liability arose from acceptances made in Mobile, there can be no question raised. Being thus liable for the debt in Alabama, he goes to Pennsylvania to negotiate for the extension of time on the debt, and there makes the proposition, which is accepted, and out of which the bond and mortgage come. What is this proposition ? It is an offer to do something, not in Pennsylvania, but in Alabama, where the debt is payable, at that time. What is the ratification of it? An acceptance on the part of the Bank of the offer of securities to be executed in Mobile. It is the same thing, and no more, as if Hitchcock had dated and written the letter in Mobile, and the Bank had replied, by instructing its agent, directing him to carry out the details here. If Hitchcock had treated directly with Poe, here, there could have been no pretence that the locality of the contract was not in Mobile; and yet, in that case, the transaction would have been virtually the same, for Poe’s authority to make the contract, would have been derived from Pennsylvania; and the principal acts as much in Alabama, by his agent in that State, as though the principal were present there. And, discarding these views of the previous treaty between the pafties, it is enough to say that the bond and mortgage are actually executed here, and they are alone the subjects of inquiry. '</p> <p>See for a case exactly in point, Chapman v. Robertson, 6 Paige, 627. This case, in fact, differs from the present in wanting the same evidences of the place of contract, which in ours arise from the debt having been incurred in Alabama, and the further.advance being made in Alabama; but the locality of the mortgaged property is alone considered as a sufficient test.</p> <p>The fact, then, being established that Alabama is the place of contract, let us inquire if the charter be violated ? The al-ledged violation is of the 6th fundamental article : “ The rate of discount at which loans may be made zoithin this commonwealth, shall not exceed one-half of one per centum, for thirty days.”</p> <p>To'this alledged violation there are two answers: 1. That this case presents no loan, or discount, but merely the taking of security on a debt already past due; except as to' the advance of the $100,000 which will be presently examined.</p> <p>2. That the contract being made in Alabama, it is not, in any case, within the restraint imposed, because that can only apply to operations within the commonwealth of Pennsylvania.</p> <p>On the first it is only necessary to say, that to bring the present case within the restriction of the charter, a loan, or discount in the ordinary course of banking transactions, must be shown; the arrangement of delayed debts, and taking securities, after the manner of the present case, would not, if done by the Bank in Pennsylvania, be governed by the charter, but by the general interest law of that State. [9 Wendall, 471.] As to the $100,000 advanced, that is no loan to Hitchcock; it appears on the face of the agreement, to be an advance by the mortgagee for the improvement of the mortgaged premises, and increase of the security; and as such could have been laid out by the mortgagee, if necessary, without the concurrence of the mortgagor, and equity would have allowed it, with interest, in an account for foreclosure, before the register. How can that be a loan to a man, which he is expressly forbidden to use as his own money, and which remains, in its disbursement, subject to the control and application of the supposed lender ? For authorities as to the right of the mortgagee to be refunded for improvements, see 3 Powell on Mortgages, 956, note.</p> <p>But it was part of the inducement to the Bank, and was to be expended for the benefit of both, by the agreement of both. [1 Powell on Mortgages, 313; note.]</p> <p>2d. Be the contract what it may, the restriction of the charter does not apply, because the act is not donQioithin the com,-monwealth of Pennsylvania. The Bank derives the power to make its contracts, not from the fundamental article under consideration, but from the previous section of the law, creating the corporation, and defining its powers. The article is merely a restriction, and, as such, must receive a strict and literal construction. Its character is wholly local, as appears by its very terms, and it leaves the power given by the charter thus: the contracts incident to a banking corporation may be made any where, subject only in Pennsylvania, to the rate of discount prescribed; and mother countries subject to the restrictions of such countries only. [13 th Conn. Rep. 227.]</p> <p>To the second objection — Is the contract void because against the general interest law of Pennsylvania? It is sufficient to say, that assuming the place of the contract to be Alabama, the general interest law of Pennsylvania, cannot apply to it, at all.</p> <p>The third objection — Is the contract void because against the statutes of usury in New York ?</p> <p>There is no pretence that the contract was made in Now York. The supposed violation must consist in the payment proposed to be made in New York. The objection rests on the general rule, that the statute of usury of the place of payment, must govern the character of the loan. The answer to this is, that where the parties contract with reference to the laws of the place where the contract is made, and under such laws stipulate for a higher rate of interest than is allowed by the laws of the place of payment, such stipulation is valid, and the interest is is not usurious. That such is the law, see 2 Kent’s Com. 260, et seep; 6 Paige, 627; 20 Martin, 1; 9 Porter. 1; 13 Peters, 65 ; also, 520; 2 Atkyns,382; Story’s Canil. 252; 7 Paige, 6l6.</p> <p>Fourth objection — Is the contract void because in violation, of any law of Alabama ?</p> <p>There may be two grounds supposed to be intended — one, that we have taken more than eight per cent., because the advance was made in Alabama money; another, that we have taken more than six, against the third section of the interest law of 18IS.</p> <p>The first ground is completely swept away by the case of B’k of U. S. v. Waggoner, 9 Peters, 378.</p> <p>To the second, the answer is, that the third section of the interest law of 1818, has no application to this case.</p> <p>The first law is that of 1805 — fixes six per cent., on bond or note, for money; if more be taken principal only shall be recovered. If taken by way of corrupt bargain, the person paying may recover principal and interest. That six per cent, allowed on bonds and notes, after payable. This law does not affect this inquiry, and is moreover repealed.</p> <p>Next comes the act of ISIS. First section, allows any rate of interest expressed in writing. Second, where no rate is expressed, eight per cent, to be allowed. Third — Provided nothing in this act shall make it lawful, for any Bank to take more than six per cent, on its loans and discounts.</p> <p>Next comes act of 1819 — First section, fixes eight per cent. Second section, fixes penalty. Fourth section, makes usurious bonds void.</p> <p>The first section of the act of ISIS, was repealed, November 22, 1S19, and fourth section of 1819, repealed January 17, 1834.</p> <p>The third section of the act, merely,- then, amounts to this, that no Bank, claiming by virtue of the second section of the act of 1818, to take eight per cent., when no rate of interest was expressed in the contract, should do so, on its loans or discounts.</p> <p>The act is clearly applicable only to such Banks as were then in existence in the State of Alabama. [Huntsville Bank, chartered ISIS, and limited to six per cent, on loans and discounts; St. Stephens’Bank, chartered 1818, (same day as law,) limited to six per cent, on loans and discounts.] And, moreover, the proviso applies only to loans and discounts made in the way of banking. The general interest law of eight per cent, would govern after the debt was due, unless some provision of the charter to the contrary.</p> <p>It may be said that this proviso, with the provisions of the charters then existing, and since granted, shows a policy which we hav'e infringed.</p> <p>To this we answer, that such doubtful evidence of a policy ought not to be relied on. [See Richardson v. Mellish,3 Bing. 229; 13 Peters, 582.] But, moreover, the policy, if granted, would only reach loans or discounts.</p> <p>There is also a vague charge of usury committed under cover of discount, compounding, &c. The intention is every thing, in this allegation. For the definition of exchange, see 13 Peters, 65; 9 Peters, 378.</p> <p>The law of the place where the contract is made, must determine the consequences to be visited upon it, when it is tested as to its validity or invalidity. [9 Porter, 1; 13 Peters, 65; 8 Wheaton, 53S ; 5 East, 129; 12 John. 143; 10 Wheat. 367.]</p> <p>This view, thus far, goes on the presumption that no one of the laws has been violated; but let us see what would be the consequence of the violation of either, or all. Would the contract and securities,be void?</p> <p>1. If in the violation of the charter, in the sixth fundamental article, (assuming, for the sake of argument, that the transaction is either loan or discount,) the article under consideration is a restriction on the general common law power of the corporation, to take interest after any rate agreed upon between itself and borrowers; it is, in effect, to the corporation what the general interest law of Pennsylvania is to an individual. In the absence of the restriction in the charter, and the law regulating interest at large, the corporation and the individual might lawfully stipulate for any rate. What, then, is the effect in Pennsylvania, of the violation of the restriction imposed on the individual. See Turner v. Calvert, 12 Serg. & R. 46.</p> <p>The foundation of this is plain; neither does the general law or charter make a forfeiture of the contract the penalty of violation. To confirm this, see 13 Con. 249 ; Fleckner v. B’k of U. S. S Wheat. 338; De Wolff v. Johnson; 10 Wheat. 367; B’k of U. S. v. Waggoner, 9 Peters, 378, affirming the case of Fleckner. Nor does the provision in the charter, for a scire facias by the Governor, alter the effect, as to the validity of the contract. See Fleckner v. B’k of U. S., supra.</p> <p>In answer to the case of B’k of Chilicothe v. Swayne, et al. S Ohio, 258, which is the only case'that appears to decide the point differently, the Court proceed upon the ground, plainly erroneous, that the right to take interest is derived from the restriction. The reasoning of the judge on the first point, as to the effect of the general law on contracts, made by individuals, is undoubtedly at variance with the conclusion he arrives at, when he applies the rule to the Bank; for in each case there is a restriction on a general common law power. This case is irreconcileable with Waggoner’s case, in 9 Peters, 37S; for there the intention to evade the charter corruptly, is made the test. Plainly, the quo animo need not be made an ingredient, if there be no capacity to 'make the contract at all; it would be ipso facto void, no matter how innocent, or meritorious the consideration. Besides, the Judge’s own proposition in 8 Ohio, is a refutation of the argument. He supposes an acquisition of more land than was necessary for the convenience of the corporation, would be void for the whole grant. This cannótbe, for there would be an express authority to hold so much as was necessary; the grant would be only void for the excess.. The question, in both cases, is not a question as to capacity to make a contract of a certain character, but as to the degree and mode in which such capacity was to be exercised. Enough has been seen to settle the effect of the Pennsylvania statute. That does not avoid the contract in terms, and as, has been shown, the Courts have so held. [Turner v. Calvert, 12 Serg. & R. 46.]</p> <p>How is the contract affected by statutes of usury of New York? The only pretence for applying those statutes al all, must, of course, be the payment of eight per cent, interest there — the legal rate being seven — and a contract made there to take more, being declared void. Even if the agreement between the Bank and Hitchcock had been made in New York, the security being situated in Alabama, it has been decided by the Courts of New York, that stipulating for the rate of interest lawful in the place where the security is situated, is not corrupt or unlawful. See Hosford v. Nicholas, 1 Paige, 220; Chapman v. Robertson, 6 Paige, 627; Quince v. Callender, Í Dess: 160. The statutes of Alabama do not make the contract void.</p> <p>But if it were an unlawful contract, by the laws of every other State in the world, it is lawful, by the laws of Alabama, where it was executed, and no authority need be cited to prove that the Courts of this State will look alone to the laws of this State, in determining its character. [14 John. 339; 5 Harris & Johnson, 100,109; 13 Peters, 65; 9 Porter, 1.]</p> <p>1. We have shown that the contract is entirely consistent with the laws of Pennsylvania, New York and Alabama.</p> <p>2. That if inconsistent, it is not void.</p> <p>Let us consider whether any defects which might have existed in it, have not been removed by the payment of $150,-000, and also the consequences of such removal upon the de-fences pretended.</p> <p>We have shown that the contract could not be void by any of the laws alledged to have been violated. If defective at all, the only consequence would have been the abatement of the interest, in accordance with statutory regulations. The general rule as to the confirmation of such contracts is found, 1 Story Eq. 336, note; Comyn on Usury, 1S3; see, also, De Wolff’s case, 10 Wheaton, 367.</p> <p>Thus the defects are purged from the contract; or, if not, the agreement to receive $150,000 in satisfaction and abatement, amounts to an accord and satisfaction at law, and these defendants are estopped by' it, from any inquiry into the nature or extent of the defects which they have thus been compensated for.</p> <p>For Mrs. Hitchcock’s power to execute the trust in the will, see Judson v. Gibbons, 5 Wendell, 225; 1 Sugden on Powers, 138; 2 lb. 337; Willis on Trustees, 10 Law Lib. 65, note; Butler v. Leavins, 8 Porter, 3S0; Powell on Devises, 303; 21 Law Lib. 136, notes.</p> <p>This brings us to the consideration of Mrs. Hitchcock’s deed. The effect of this must be governed by the intention. [3 Powell on Mortgages, 1088, and note, and authorities there cited.]</p> <p>There can be no doubt of the intention here. The payment of @150,000 relieved the bond and mortgage from any defects. The parties intended that complainants should go into possession, under the mortgage, as bona fide mortgagees, leaving to creditors their right to attach the securities, if they pleased ; in •which case the real debt and interest must have been paid to complainants, before the possession under the mortgage, could be vacated.</p> <p>But above all, it has been repeatedly held, that where a note or other security is given for a pre-existing, valid, debt, as in this case, the @520,000 the debt due on unimpeached bills of exchange, although such note or security be void, for usury, yet the original debt is valid, and may be recovered. [5 Wendell, 597; 1 Henry Blackstone, 462; 7 Modern, 119; 2 Taun-ton, 184; 3 Campbell, 119; 19 Johnson, 150, 294; 11 Mass. 359; 8 Cowen, 77, 40.]</p> <p>It is thus often held, that when a bond or deed is void for champerty, as on account of the relation between the parties, yet in declaring such deed void, the security is decreed to stand for the debt actually due. [18 Yesey, 119,120; 3 Porter, 115; 12 Serg. & R. 46.]</p>

<p>1. An agreement by the vendee of slaves to return them, and pay such sum of money on demand as is equivalent to their depreciation, forms a sufficient con. sideration for the rescission of the same.</p> <p>2. Where upon an agreement to rescind a sale, it was incumbent on the vendee to do the first act in order to consummate the rescission, if he has omitted to do any thing, he cannot resist the payment of the purchase money by setting up the agreement.</p> <p>3. An appeal bond, conditioned that the appellants shall prosecute their appeal with effect, and if they “ fail therein, then pay the judgment with such damages and costs as shall be adjudged against them in said Court,” substantially con. forms to the statute.</p>

<p>1. A cotton gin is not a fixture to the freehold, and therefore will not pass by a grant of lands, on which the gin house is located, to a trustee, for the purpose of being sold to pay the debts of the grantor. Notwithstanding such a grant, the cotton gin remains the property of the grantor, and may be taken by virtue of an execution against him.</p>

<p>Error to the Circuit Court of Wilcox.</p> <p>Assumpsit by the plaintiff against the 'defendant in error, on a promissory note, dated 20th July, 1836, for the payment, three days after date, of five hundred and seventy-nine dollars.</p> <p>The defendant pleaded non-assumpsit, payment, and the statute of limitations.</p> <p>To the last plea, the plaintiff replied, that the promissory note mentioned in the declaration, “ was made, executed and delivered to the plaintiff in the State of South Carolina, where the plaintiff now resides, and that the said defendant removed out of said State, before the expiratioff of six years next thereafter, and has continued out ever since,” &c.</p> <p>Upon this replication the defendant took issue, and issue was also joined upon the pleas. Upon the trial, the plaintiff moved the Court to charge the jury, that if the proof sustained the plaintiff’s replication to the defendant’s plea, that then the statute of limitations did not bar the plaintiff’s right of recovery ; which charge the Court refused, and charged the jury, that the issue joined upon the replication, was an immaterial issue, and the jury should not consider it; to which the plaintiff excepted, and which he now assigns for error.</p> <p>cited 1 S. & P- 37, to show that the replication was good; and 3 Porter, 43, to establish that the Court erred in its charge.</p>

<p>Writ of error to the Circuit Court of Lauderdale.</p> <p>This was an action of assumpsit, at the suit of the defendant against the plaintiff, to recover of the latter., the sum of two hundred and thirty-seven dollars, which he bid for part of fractional section IS, township 3, range 11, west, situate in Lau-derdale county, and containing one hundred acres, more or less. This land was offered for sale by the plaintiff below, as sheriff, under an execution in favor of the party for whose use the suit was brought, against Frederick P. Nelson, issued on a judgment for $5S9 19, damages, and $32 3H, costs.</p> <p>The defendant demurred to the declaration, and his demurrer being overruled, the cause was tried on the general issue, with leave to give any matter in evidence which would constitute a good defence, if specially pleaded. The jury returned a verdict for the plaintiff, and judgment was rendered accordingly.</p> <p>On the trial, the defendant excepted to the ruling of the Court. It is shown by the bill of exceptions, that the plaintiff, Pettus, was sheriff of Lauderdale, and in that character had in. his hands an execution, such as is described above, which he levied on the lands designated in the declaration; that after having given thirty days notice of the time and place of sale, he sold the same at public auction, and the defendant became the highest bidder, for all the right, title, and interest of the defendant in execution, to these lands, for the sum of $237. The execution was produced, and on it were indorsed the levy and sale. George Arnett was introduced as a witness, who testified that he acted as the deputy of the sheriff, on the day of sale, that he made a memorandum on a slip of paper, which described the land correctly, and the defendant as the purchaser, at the price stated. This memorandum he stated had been lost. Witness further testified, that some days thereafter — the time he could not state with precision — the plaintiff, as sheriff, tendered to the defendant a deed for the land, conveying all Nelson’s interest therein to him, (defendant.) This deed the defendant refused to accept, and pay the purchase money. There was no proof that the defendant, or any one on his behalf, signed the memorandum spoken of by the witness, or any other memorandum.</p> <p>The defendant, by his counsel, prayed the Court to charge the jury that the proof was not sufficient to bind the defendant, so as to entitle the plaintiff to recover; this instruction was refused. But the Court charged the jury, that the memorandum in writing, made by Arnett, the deputy sheriff, was sufficient to bind the defendant to his bid; and if they believed, from the evidence, that the defendant was the purchaser of the lands as ■it had been stated, and the facts were sufficiently established by the testimony, then they must find for the plaintiff.</p> <p>insisted, that although Arnett may have acted as the deputy of the plaintiff, and made a memorandum of the sale, which, in point of form, was sufficient, yet it is not shown, that this memorandum was made at, and immediately consequent upon the sale, or that it was afterwards shown to, or approved by the defendant. [Adams v. McMillan’s Ex’rs, 7 Porter’s Rep. 73; Robinson v. Garth, 6 Ala. Rep. 208.]</p> <p>contended that the evidence was such as to have authorized the charge of the Court. The fair and reasonable interpretation of the proof, as stated in the bill of exceptions, was, that Arnett acted as the deputy of the sheriff, at the time of the salo; that if he did not sell under the execution, he was then present, and made the memorandum of which he spoke; and that the sale and memorandum were but parts of an entire transaction. The one following the other as soon as it reasonably could. He cited the cases relied on by the plaintiff in error, and referred to Currie v. Mann, 6 Ala. Rep. 531.'.</p>

<p>Writ of Error to the County Court of Mobile county.</p> <p>Assumpsit by Krebs against E. and D. McVay, as administrators of the estate of D. McVay, deceased. The defendants pleaded — 1. Non-assumpsit. 2. That the estate of the said McVay had been by them represented as insolvent, and so declared by the County Court of Mobile county, by which letters of administration were granted. The transcript contains a memorandum, that issue was taken on both pleas. The judgment entry recites that the second plea being considered by the Court, “ the same is overruled.” A verdict was then found for the plaintiff, on which judgment was given.</p> <p>The defendant now assigns as error — •</p> <p>1. That the plea of insolvency was overruled, and adjudged insufficient.</p> <p>2. That the judgment ought to have been referred to the Orphans’ Court.</p> <p>insisted that the proper construction of the judgment entry is, that a judgment was pronounced, not on the sufficiency of the plea, which he conceded was good, but was upon the evidence offered to sustain it.</p>

Assumpsit by the defendant in error, on a promissory note of the plaintiff in error, for $5SG, and judgment.

The relators, by their counsel, have presented to this Court, the record of an action lately pending in the Circuit Court of Shelby, at the suit of Wrn. Nabors, now deceased, against Elihu Jones and others. That action was commenced on the 26th of March, 1S42, as well to try titles to a certain tract of land, particularly described in the indorsement on the writ, and in the declaration as to recover damages for its detention and occupancy by the defendants.

<p>Writ of error to the County Court of Clarke county.</p> <p>Claim of property, interposed by Forward, to a certain slave levied on by the sheriff, by virtue of an execution, at the suit of Savage against one Dean. The claimant made title through the medium of a constable’s sale, by virtue of an execution against the goods, &c. of Dean, by a justice of the peace. This execution, bearing date 1st January, 1842, was given in evidence; upon it was this indorsement: “Rec’d 1 January, 1842. Levied on the following slaves, to wit: Joe, Daphne, Jenny, Maria, 3im and George, 3 January, 1842. Satisfied, 3 Jan’y, 1842. Neil Ezell, Const.” The claimant then offered to prove by the constable, that he sold the slaves named in the return to the claimant; which being objected to by the plaintiff in execution, the claimant moved the Court to permit the constable to amend his return, but the Court refused either to direct or prevent such amendment, and the constable then added to and amended his return, that he had sold the said slaves to the claimant, for gil ,386, on the 3d January, 1842. The claimant then offered to read the return so amended, to the jury, which the Court allowed, against the objection of the plaintiff.</p> <p>There was evidence tending to show, that the sheriff of Clarke county, previous to the levy by the constable, had levied certain executions in his hands, upon the same slave. Whereupon the plaintiff asked the Court to instruct the jury, that if such was the fact, the constable could not levy on the same slave, and that any levy so made by the constable, was absolutely void. This was refused, and the Court instructed the jury, that a levy made by the constable, after a levy on the same slave by the sheriff, was not void, but voidable. And that so soon as the execution in the sheriff’s hands was satisfied, then the levy made by the constable, bound and held the property. There was evidence tending to show, that the creditor whose execution was in the constable’s hands, had made oath, that unless the execution was issued forthwith, he would be in danger of losing his debt. On this the Court charged the jury, they could not inquire into the motives of the creditor in taking this oath. This creditor, was the purchaser from the constable, and is now the claimant.</p> <p>The evidence tended to show, that the constable gave no no-' tice of the sale, under the execution, and that the execution debtor had, in writing, waived all exceptions for want of notice, and insisted on the sale. On this the plaintiff asked the Court to instruct the jury, that a sale by a constable, without notice, was void. This was refused, and the jury instructed, that a sale without notice, was valid, if no creditor was prejudiced, the property bringing a just and reasonable valuation, and the debtor consenting to the sale without notice.</p> <p>The plaintiff excepted to these several rulings of the Court, and they are now assigned as error.</p> <p>made the following points:</p> <p>1. Property once levied on, remains in the custody of the law, and is not liable'to be taken by another execution, in the hands of a different officer. [10 Peters, 400.]</p> <p>2. The Court of a Justice, is not one of record ; the best evidence, therefore, of the sale' by the constable, was his testimony, and not his return upon the execution.</p> <p>3. The claimant, being the creditor by whom the sale was forced, the jury might properly inquire into his motives in causing an execution to issue forthwith.</p> <p>4. The Constable ought to have given twenty days notice of sale. [Clay’s Dig. 216, § 78.]</p> <p>insisted, that no question of the right of the constable to levy, was involved here, as no one disputed the right.</p> <p>The contest is not between creditors, as such, contesting the priority of liens, but as between a purchaser and a creditor, seeking to set aside a sale, on account of supposed defects in the authority of the agent. All this was assented to, and ratified by the debtor, and the sale may be considered as made by him, through his agent.</p> <p>The only question between these parties should have been, as to the bona fides of the transaction. And the motives of the party in suing out execution, had nothing to do with the matter in issue.</p>

<p>X. An administrator causes an execution to be issued upon a judgment obtained by his intestate, and to be levied on a slave which is claimed by a third person, and a trial of the right of property is had under the statute, which results in the condemnation of the slave, who is sold, and the money received by the administrator. Afterwards, the judgment of condemnation is reversed, and upon another trial the slave is found not liable to the satisfaction of the execution. Held, that the adm'inistrator was liable in an action of assumpsit, in his individual, and not in his representative character, for the money so received.</p>

<p>1. An execution may be arrested by supersedeas, if an unjust or improper use is attempted to be made of it, and this although the objection does not appear of record, but is shown by oral testimony.</p> <p>2. The sheriff is not authorized to pay the money due on a judgment, and keep the execution open for his own benefit. But, quere, if the defendant avail himself of the payment, by moving to quash the execution,- is not a previous request to pay, or a subsequent adoption of the act, the necessary inference.</p>

Writ of error to the Court of Chancery for the first district of the Southern Division. This bill is filed by Walton, alledging that a sum of money is due by him, as the proceeds of certain cotton, to one of the defendants, but that each of them claim it, and will sue for it, unless prevented by the interposition of Chancery.

<p>1. One, not a party to a proceeding in the County Court upon a petition for tlie ad. measurement of dower, cannot prosecute a writ oí error to this Court, to reverse the judgment.</p> <p>2. It seems that the proper remedy for one aggrieved by the judgment of the Conn. ty Court, in such a case, is to remove it by certiorari into the Circuit Court.</p>

<p>1. Quere ? — Where a writ issued on a promissory note dated two years previously, against W. E. N. and A. M. N., describing their connection thus, “who as partners signed as W. E. & A. M. N.” is it a legal presumption that they were partners'when the writ was sued out.</p> <p>2. Although service of process on one partner is sufficient to bring in the firm where the partnership is continuing, yet the plaintiff is not bound to accept such service, but may require all the partners to be notified of the pendency of the suit. If the plaintiff declares against all the members of the firm, he may discontinue as to those not served with process, and if he omits to take judgment against them, without a discontinuance in fact, a co.defendant against whom judgment was properly rendered, cannot avail himself of the irregularity on-error.</p>

<p>1. When an administrator is removed from office, he cannot regularly sue out execution in his own name upon a judgment recovered by him as administrator.</p> <p>S. If an administrator, after removal from the administration, collects money recovered by him as administrator, it is money had and received to the use of the administrator de bonis non, who may sue the former administrator in assumpsit.</p>

<p>!• I" an action of ejectment, a conveyance by the lessor of the plaintiff, of all his right, title anil interest, to the land in dispute, made to the defendant, pending the action, may be pleaded puis darrein continuance.</p> <p>2. Whether in such a caso a technical release could bo pleaded — Qucrc?</p>

Writ of error to the Circuit Court of Jefferson. This was an action of assumpsit, at the suit of the defendant in error against the plaintiff. The declaration contains two counts.

<p>Writ of error to the Circuit Court of Pickens.</p> <p>Notice was issued by Wofford to one Mason, a constable of said county, and to Robinson and one Mitchell, his official sureties, that a motion would be made against such of them, as should be served with notice, for judgment for the amount of an execution issued at the suit of Wofford against one Williams, and one Nabors, and placed in the hands of Mason as constable, for collection, and not returned by him according to the directions of the execution. Judgment was given by the Justice against Robinson, who alone was notified, and he appealed to the Circuit Court, which dismissed the motion, on the ground, that the declaration should contain upon its face a specified time for its return. It appears, by a bill of exceptions, allowed by the presiding Judge, that the execution indicated the time for its return only by these words, “ and due return make to me.”</p> <p>The plaintiff prosecutes the writ of error, and here assigns the dismission of his motion as error.</p> <p>Clay’s Dig. 358, § I; 359, § 4, 6.</p>

<p>1. Where the record in a suit by motion recites “ that the certificate of Wiifiam B. Hallett, its president was produced, &e,” and no objection is made in the Court below to the testimony by which the fact is established, it will in this Court be sufficient, as it is not necessary that the Court should recite the evidence by which a fact is ascertained.</p> <p>2. A note discounted by the Bank after its maturity carries the legal rate of interest,</p>

<p>Writ of error to the Circuit Court of Tuscaloosa.</p> <p>This was an action of assumpsit at the suit of the defendant in error against the plaintiff. The declaration contains two counts; to the first, the defendant demurred, and his demurrer being overruled, he pleaded non-assumpsit; the cause was thereupon submitted to a jury, who returned a verdict for the plaintiff, and judgment was rendered accordingly.</p> <p>Moore, for the plaintiff in error insisted, that the demurrer should have been sustained, because the first count discloses a cause for which defendant was only suable after a special demand ; and no such demand was ailedged. [1 Chitty’s'Plead. 364.]</p> <p>contended, that if a demand was necessary, it was sufficiently ailedged. [Chitty’s Plead. 334 ; 10 East’s Rep. 359 ; 4 Ala. Rep. 70.]</p>

Writ of error to the Circuit Court of Talladega. Assumpsit by Eli Shortridge against Pitts, on a note made by him, payable to one Townsend, and by the latter indorsed to Shortridge. The defendant pleaded — 1. Non-assumpsit. 2. Payment. 3. Set off; upon which issue was taken to a jury. 4. That the note sued on was the property of George D. Shortridge, and was not the property of the plaintiff. 5.

<p>1. A voluntary bankrupt is not a competent witness for the assignee in bankruptcy, to establish a debt due the bankrupt.</p>

<p>1. The sheriffs elected under the act of the 12th January, 1833, “ for the organize lion of certain counties therein named,” were entitled to their offices for the con. stitutional term of three years, although their successors may have been elected, at the general election in August preceding the expiration of that period. And the successors may continue in office for three years, calculating from the time that the term of their predecessors expire; unless they entered upon the dis. charge of their official duties sooner, which it seems they might do any time after their election, and in virtue thereof.</p>

Writ of error to the Circuit Court of Lowndes. Assumpsit by Knox & Co. against William Alexander and others, as administrators of Edmund Alexander, on a note made by their intestate with D. Durden and Thomas Durden.

The bill was filed by the plaintiff in error, and alledges, that on the 13th April, 1842, he, being sheriff of Perry county, an execution came to his hands in favor of the defendant, against The Manual Labor Institute of South Alabama, for $1,649 37, besides costs.

Writ of error to the Circuit Court of Montgomery. The plaintiffs in error were indicted for robbery.

Writ of error to the Court of Chancery for the 12th district of the Southern Division. The bill is filed by the heirs at law of Edmund Alexander, deceased, against Fisher, who intermarried with the widow of said Alexander, to restrain him in committing waste in certain lands, which were attached as dower to his wife, as the widow of the said Alexander.

<p>1. A will of personal property will be established, though not written or signed by the testator, or attested by witnesses, if made according to the directions of the deceased, and approved, and not signed from physical debility, or the near approach of death.</p> <p>2. It is strong evidence of capacity to malte a will, that its provisions are suitable, and made in accordance to previous expressed determinations.</p>

<p>1. Where a suit is brought in the name of the payee of a promissory note, for tha use of a third person, to whom it appears to have been regularly indorsed, the form, of the action is an acknowledgment that the indorsee is the proprietor of the pa. per, and the suit cannot be supported by the payee.</p> <p>S. It will be intended that the payee and indorsee of a promissory note is the samo person, where the only difference in the names, is, the insertion of the initial of a middle name in the indorsement.</p> <p>3. It was decided in this State, at an early day, and such has been the continuous practice, that the Court cannot order the plaintiff to bo nonsuit against his consent, and whenever he submits his case to a jury he must be understood to insist upon a verdict: it is consequently erroneous to coerce a nonsuit, though the plaintiff’s proof may have been insufficient, and he has not been prejudiced thereby.</p>

<p>1. A plea in abatement filed within three days next after the filing of the declara, tioii is within time, if the trial is not thereby delayed, and it is not error to refuse to strike such a .plea from the file.</p> <p>8. Whore the return of the commissioner states the deposition of a witness to have been taken by virtue of the commission, it is sufficient to authorize the reading of the deposition, although a certain place is named in the commission where the witness is to be examined, and the return is silent as to place. In order to sup. press the deposition, an affidavit is nccossary that the party attended at the particular place.</p>

<p>1. If a matter ef defence arises nfior issue joined, it must be pleaded puis d&frzw continuance; if it arises pending the suit, but before issue joined, it is pleadable in bar to the further maintenance of the suit.</p> <p>2. A submission to arbitration, which speaks of an action for a false imprisonment* will include an action on the case for the malicious use of process.</p> <p>3. An award which discharges each from all demands of the other, and dismisses -all suits, is not conditional, but is conclusive in favor of, and against each of the parties.</p>

Writ of error to the Circuit Court of Randolph. A WRIT of capias ad respondendum at the suit of the plaintiff in error, against the defendants, was issued on the 8th of March, 1844, returnable to the Circuit Court of Randolph, to be holden on the seventh Monday after the fourth Monday of that month; and was executed on one of the defendants the 12th, and the other the 30th of March.

The case made by the hill is this. About the 1st of February, 1S42, Dunlap became the first indorser of a bill of exchange drawn and accepted by one Lee; Battle and Foster became subsequent indorsers on the same hill, which afterwards was negotiated to Clements, and being protested for non-payment, was put in suit by him, and jndgment thereon recovered in his name.

<p>Appéal from the Circuit Court of Mobile.</p> <p>Ejectmekt by the defendants against the plaintiff in error.</p> <p>The plaintiff to sustain his case, offered in evidence, a patent from the United States, by which it “ released, remised, and forever quit claimed to the heirs of Robert Farmer, and their heirs,” (for the locus in quo,) “subject to any just claim, or claims, to all and every part thereof, all and every person, or persons, bodies politic, or corporate, derived from the United States, or from either the British, French or Spanish authorities.” The patent issued on the 14th November, 1837, and in the recital is stated to be issued, under the provisions of the act of Congress of the 8th May, 1822, confirming claims to lands in the town of Mobile, &c.; and proved that the land sued for, was within the limits of the patent, and the defendant admitted he was in possession. To establish the heirship of the lessors of the plaintiff, he read the depositions of Mrs. Fisher, Mrs. Beaumont, and Mrs. Chasiaing. To the introduction of the latter, the defendant objected, because the notice was given before the commission was allowed, and because it did not prescribe the notice. The objection was overruled, and the defendant excepted. The plaintiff also read the deposition of B. Magoffin, together with sundry records from the land office, which need not be here inserted.</p> <p>The defendant to support the issue on his part, read from the book of translated records, certain documents described in the opinion of the Court, though objected to by the plaintiff: also, a paper executed by Joaquim de Osorno, civil and military commandant, of Mobile, to Miguel Eslava, on the 30th of June, 1802, by which he conveys to him, the house wherein he dwelt, for the consideration of two thousand dollars, and proved that Miguel Eslava was dead, and that the defendant was his heir; which was objected to by the plaintiff, because Osorno was commandant at the time the conveyance purported to be made, and because it only conveyed a house, and not land; but the/Court overruled the objection and permitted it to be read. The defendant also read other papers from the land office, described in the opinion of the Court.</p> <p>It was also in proof that Osorno built the house in 1801 or 1802, which Continued upon it until some time after 1820. That Fontanella inclosed it, and offered to sell it to witness. Witnesses were introduced to prove that the lot was occupied by the Spanish commandants, who told the witnesses they paid rent to Eslava; and that since the 15th of April, 1815, Eslava rented the property to the American officer in command at Mobile, and afterwards to a Masonic Lodge, and received rent. It was also in proof, that one De Vobiscey, the son-in-law of Farmer, interrupted the possession of Eslava in 1817, ’18, or ’19, and that proceedings for an unlawful detain-er commenced in 1819 — that De Vobiscey entered peaceably, claiming title, and representing the heirs of Fanner. <■ That the proceedings resulted favorably to Eslava before the justice of the peace, who was placed in possession — that, subsequently, the proceedings were reversed, and'De V.obiscey restored— that the heirs of Eslava on the day of the execution of the writ of-restitution, commenced au action of trespass, to try title, and recovered the same with damage for the detention. See the cases of Hallett v. Eslava, 2 Stewart, 115, and Hallett v. The heirs of Eslava, 3 Stew’t & Por. 105; since which time the defendant has been in possession.</p> <p>It was further in evidence, that Thomas L. Hallett took under the writ of restitution, and held the same under conveyance from De Yobiscey, and wife in fee, for one-fifth part, and a mortgage for the residue. It was in evidence, that until De Vobiscey made his claim there had been no assertion of title by the heirs of Farmer since 1782 — that none of the family of Farmer remained in the Spanish Province of West Florida, and that it was the general reputation in the Spanish times, from about the date of the conveyance to Eslava, that the land belonged to him. There was much evidence offered by the plaintiff to contradict the location of the lot in defendant’s possession.</p> <p>The Court charged the jury, that the patent from the General Government'to the heirs of Robert Farmer, conveyed to them such title as the Government of the United States had in the land, either legal or equitable, at the time of its date, and no more. That the law presumed the title to be in the Government, and by virtue of the patent alone the patentee could enter, unless it was shown by the defendant, that at the date of the patent the legal title to the land was not in the United States.</p> <p>That the evidence of title introduced by Eslava, showed that the legal title to the land claimed by him, was in the Spanish Government, until the territory was ceded by France to the United States — that the cession of the territory by France, conveyed to the United States the legal title to the lands sued for — and although the equitable title to the land claimed by Eslava, might be in him yet the evidence introduced by him, showed an equitable title only — that the patent conveyed the legal title to the heirs of Farmer, and that it must prevail over the equitable title.</p> <p>That although Robert Fanner might have been an alien, and his children or heirs at law aliens, that they took the legal title, notwithstanding their alienage, and could recover, though the equitable title was in another. That in ascertaining who were the heirs at law of Fanner, reference must be had to the laws of this country, and not to the laws of England, or of any other country ; and the persons intended by the word “ heirs” in the patent, are such persons as would have been denominated and entitled to the character of heirs of Robert Farmer, if he and his children had been citizens of the United States ; and that the legal title vested in his children or grand children, if any there were.</p> <p>That the mortgage deed to Hallett, did not estop them, from asserting their title, as the defendant did not in any way connect himself with it, nor show that it had not been fully discharged.</p> <p>The defendant then moved the Court to charge, that if Miguel Eslava, and those from whom he claimed, had been before suit brought, in continued and undisturbed possession for thirty years, under the Spanish act of 1788, and the mesne conveyances shown in evidence, then the plaintiff cannot recover. That all the evidence of declarations made of pedigree, after 1820, be excluded from the jury, if they shall'believe that a suit was commenced for forcible entry and detainer, previous to the making of the same. That if Thomas R. Hal-lett was in possession of the lot as owner of one undivided fifth, and of the whole as mortgagee of the plaintiff, and that in an action of trespass to try titles, the defendant, and those from whom he claims, recovered from Hallett, the plaintiff cannot recover. That if the jury believe the deed shown in evidence by the defendant, and certificate of affirmation, be authentic, and possession accompanied the same in the several parties thereto, they must find for defendant. That if the defendant, and those from whom he claims, have been in the possession of the lot for thirty years before suit brought under the act of title exhibited by him, without disturbance or interruption, the plaintiff cannot recover. That if the defendant had possession of the land for twenty years without disturbance prior to 1820, under the acts of title in evidence, and since 1833 under tbe judgment in evidence, as well as the acts of title, and deeds shown in evidence, then the plaintiff cannot recover. That if the defendant and those from whom he claims, have been in possession since 178S, with the exception of eight years, during which a trespass from one T. R. Hallett existed, he claiming under the plaintiff, and that the defendant recovered the same from him as a trespasser, the jury can presume a complete grant, or any other act necessary to sustain that title. These charges the Court refused to give, and the defendant excepted as well as to the charges given.</p> <p>The defendant assigns for error the several matters set forth in the bill of exceptions.</p> <p>The titles of the parties, are as follows: The defendant in error relies alone upon the patent which issued in 1837, and upon the joroof to show that the lessors of the plaintiff below, are the heirs of Robert Farmer.</p> <p>In 1782, Robert Farmer was a British subject — if a native of the United States, he had adhered to the British Crown, and the place of his domicil, was a British Colony, and the common law rule of descent must prevail, in the absence of any statute abrogating it. The proof then is insufficient, as it does not show'that the sons of Farmer died unmarried, and without issue, and that they were capable of transmitting an estate of inheritance, to the lessors of the plaintiff.</p> <p>The defendants title consists of — 1. The treaty between Spain and Great Britain, by which West Florida was ceded to Spain in 1783. [2 White’s Recap. 292, 305.]</p> <p>2. A Spanish concession to Elizabeth Fonnerette in 1788.</p> <p>3. A conveyance from her to Fontanella in 1798.</p> <p>4. One from him to Osorno in 1801.</p> <p>5. And from him to M. Eslava in 1802.</p> <p>6. Possession by Eslava till his death with an interruption hereafter to be considered.</p> <p>7. Death of M. Eslava, and descent to defendant.</p> <p>8. Confirmation of those lands by the act of 1822.</p> <p>The first objection is, that Mrs. Fonnerette’s application is vague — she applies for the lot of Mrs. Farmer. The boundaries given by Mrs. F. in her deed to Fontanella, are the same that are found in his deed to Osorno. The admeasurements vary, but the fixe'd boundaries remain, and the rule is well established that course, and distance, are controlled by definite boundaries. [1 Troplong, 488; 7 Cowen, 723, 61 ; Id. 273 3 Green-leaf’s Ev. 49, 50, 51.]</p> <p>'The second objection is, to the term “house,” in the deed from Osorno, which it is supposed, is insufficient to convey land, but the law is clearly otherwise. The rule is that the accessory follows the principal. [Bishop Taylor’s Works, book 3, chap. 4 ; 4 Com. Dig. 542; 2 D. & E. 498; 21 Pick. 25.]</p> <p>The defendant’s title is claimed to be superior upon the following grounds:</p> <p>1. That from the recitals in the deeds before the commandant — the sales witnessed by that officer — long continued possession — the Government confirmation of the specific title, as a title founded upon a grant lost by time and accident, a grant will be presumed. [Green!. Ev. 50 ; 9 Peters, 760 ; 12 Id. 452 ; 16 Id. 55.]</p> <p>2. That the Spanish acts, and the conveyances before the commandants, connected with the terms on which Spain delivered the province of Louisiana to France, and the terms by which that power conveyed it to the United States, amount to a completion of the title. [White’s Recap. 718 ; White’s Spanish Laws, 162; 14 Peters, 413.]</p> <p>3. That the act of the United States recognizing and confirming the title, establishes its legal character, and enables-the Court to assert its validity, against conflicting titles in the same manner as if it had been perfected by France or Spain.</p> <p>4. That the true theory of these titles is, that if they afforded a claim upon the conscience of the crown of Spain for completion at the date of the cession of the territory to France, and France received the territory on the terms, that they should be completed, that this obligation was transferred to the United States, and is a legal obligation to be enforced by Courts of justice. That the true rule of decision is, the validity of the claim, according to the laws and usages of Spain. That the government, as a general rule, has never attempted to settle conflicting rights, but has contented itself with a general acknowledgment of the right, and a reference of the party to courts of justice. The confirmation simply amounts to a relinquishment of all claim — it is not a release to the party.</p> <p>The effect is, to open the Courts, which determine the conflicting rights. The case in 9 Peters, 225, strongly illustrates this view, as it acknowledges the supremacy of the State tribunals, and denies the pretensions set up for the United States of controlling the subject, [See Judge Baldwin’s opinion, 14 Peters, 413; 11 Martin, 207; 12 Peters, 446 ; 3S.&P. 184, 106; 4 Louis. R. 410, 43.]</p> <p>The patent of Farmer’s heirs is evidencer — 1. That the government acknowledges a claim in them superior to its own. 2. That the title is good against the United States, and any one claiming under it, by subsequent recognition. 3. That this acknowledgment is not to be used to the prejudice of any other existing claim.</p> <p>On the other hand, the papers presented by the defendant show — 1. That he claims against the United States, by a title supposed to be good, but the evidence of which had been lost. 2. That the government acknowledges this claim, and confesses that the land was appropriated by Spain, and therefore not ceded by France to the United States. At this point the action of the Federal Government stops, and' there being a conflict about the title, it forms a case for the judicial tribunals. [7 Peters, 51; 8 Id. 436 ; 9 Id. 117,133, 147 ; Strother v. Lucas, 12 Peters, 410.]</p> <p>The claim of the heirs of Farmer it is confessed, afforded no argument for a claim against the government, whilst the claim of the defendant on the government is supported by a legal act of a government, de jure, and de facto. The sales under which he held passed before the commandant, and is upheld by a long and peaceable possession. This, then, is a right protected by the treaty, and for the enforcement of which Courts are established. [4 Peters, 511; 9 Id. 225; 10 Id. 737; 14 Id. 415.]</p> <p>A most important means of acquiring property is by prescription. It is the foundation of all titles, and no civilized nation has ever existed in which it has not been recognized. [2 Touillier, 337; 1 Troplong, Pres. 14, 15; 24 Merlin, 132.] The acknowledgment by the United States, of the defendant’s claim, shows that it was one which might depend on prescription for its validity. 1 Ala. Rep. N. S. 660,76, is expressly in point. See, also, 2 Troplong, 393-4; 1 Wheaton, 292; 12 Wend. 674.</p> <p>The interruption, by De Vobiscey, did not destroy the claim by prescription, as he entered without right, and a title without foundation, will not support a prescription. [2 Troplong, 394, 420; 12 Johns. 365; 9 Wend. 511; 20 Id. 261; 1 Cowen, 286; 5 Peters, 151.]</p> <p>The recovery by the heirs of Eslava, removed the effects of the interruption. The only American case, that discusses this question, is found in 15 Louisiana, 566, where the argument of Troplong is adopted. See also, S Cranch, 462. The law upon the statute of limitations, or prescription in England, is meagre. [15 Viner, 46-7.]</p> <p>The effect of the confirmation in the Royal Order of the King of Spain, dated Barcelona, 5th October, 1802, White’s Spanish Laws, 162, is discussed in 14 Peters, 413. For the value of the acts of sales before the Spanish officers, see White’s Recap. 719-20.</p> <p>The title of Farmer’s' heirs is derived from the United States; the report — the act of Congress, and the patent. Who were the heirs of Robert Farmer, must therefore be resolved by the lex loci rei sitae at the time the title was conferred upon them.</p> <p>It is admitted that the claim of Farmer’s heirs had lost its validity, by the terms of the treaty, and that the patent they now hold is a donation from the Government, on account of the peculiar circumstances of the case.</p> <p>As to the title of the plaintiff in error. The concession to Mrs. Fonnerette did not sever the premises from the Spanish Domain, and the title continued in the King, until it was transferred to this Government, it being an imperfect, or inchoate title only. [3 Louisiana R. 47, 107; 4 Id. 443; 3 Id. N. S. 35.] That this title was not valid under the Spanish Government, is shown by the Order of Morales, issued under the authority of the King of Spain, on the 17th July, 1799, (Land Laws, 984, § 18,) where it is declared, that although a survey may have taken place, and they have been put in possession, they cannot be regarded as the owners of the land, until then-real titles are delivered complete, with all the formalities there recited. But in this case, no survey was ever made.</p> <p>The lot of ground granted to Mrs. Fonnerette, is sixty feet front, she sells the same quantity to Fontanella; this therefore, is certain, while the calls for boundaries are uncertain, and the defendant therefore cannot claim more.</p> <p>It is' admitted, that a grant, of a house, would convey the land, because this is the legal presumption ; but a bill of sale by a Spanish Commandant, who had no authority to deal in real estate, selling his house, which he built with his own money, upon the lot purchased from Fontanella, repels the idea upon its very face, that laud was intended to be conveyed.</p> <p>As the title of the heirs of Farmer was derived from the patent, their right of entry did not exist until then; they cannot, therefore, be barred by a previous adverse possession. [4 Bibb, 544; 2 Id. 413; 7 Ohio, 252; 5 Litt. 318; 7 Wendell, 127; C Peters, 673; 12 Wheaton, 601; 1 Marshall, 59, 506 ; 8 Cowen, 603.]</p> <p>A grant by the Government will pass its title, notwithstanding adverse possession. [6 Pickering, 409; 4 Mass. 528 ; 4 Bibb, 454; 7 Wend. 125; 8 Cowen, 589.]</p> <p>Possession will not be protected under the statute of limitations, when one of the links to the chain of title is wanting. [9 Wheaton, 541; 7 Mass. 783; 9 Johns. 270; 13 Id. 552; 20 Id. 301.] Must be hostile in its inception, marked by definite boundaries, an actual occupancy, positive, notorious, uninterrupted. [1 Johns. 156; 2 Bibb, 507; 1 Marshall, 62.]</p> <p>Prescription does not exist by the law of England, but in relation to incorporeal hereditaments. [Coke Lilt. 113, B. 2; Black. Com. 263; 1 Phil. 316.] There is a negative prescription as to corporeal hereditaments, from the statute of limitation, by extinguishing the remedy. [1 Blk. Rep. 675; 1 Lo-max, 616; 2 Johns. Rep. 362.] So a possession of twenty years will be sufficient to maintain an action, against a trespasser without color of title. [5 Litt. 319; Ad. on Eject. 29.]</p> <p>Presumptions of grants, are founded upon the consideration, that the facts are such, as according to the course of human events, could not occur, unless there was a transmutation of the title. Such presumptions are never made where, as in this case, the claim is of such a nature, that a grant could not exist. [7 Wheaton, 110; 2 Bibb, 426; 4 Pick. 246; 2 Wm. Black. 1238.]</p> <p>In ejectment, the elder legal title must prevail. An elder equitable title, cannot be given in evidence. [2 Bibb, 129 ; 4 Id. 416 ; 3 Litt. 37 ; 5 Id. 321; 3 Marsh, 255; 2 Johns. 221.]</p> <p>Until the patent issues, the title remains in the government, and although a state may authorize an action of ejectment on a certificate, it has no power to declare any title less than a patent, valid against the Government, or its grantee. [13 Peters, 436, 98; 8 Louis. R. N. S. 490; 3 Id. 397; 1 Louis. R. 56 ; 4 Id. 272.]</p> <p>Defendant claiming title from the same source, as plaintiff, cannot set up an out standing title. [5 Cowan, 530 ; 9 S. & R. 47; 2 Bibb, 507.]</p> <p>The United States had a perfect right to investigate these claims, and to recognize, or reject, imperfect titles derived from the foreign Government, and to prescribe the mode of establishing them on condition of forfeiture, and hence the various acts of Congress subjecting the claims to certain restrictions, have been supported as valid. [3 S. & P.122; 6 Peters, 771; 12 Id. 448; 12 Wheaton, 599.]</p> <p>In relation to these imperfect titles, which affected only the conscience of the King of Spain, where the government has not instituted a tribunal, as in Missouri, and Florida, in which it may be said, its action over them is final, and cannot be reviewed in the State Courts. The case cited to support the opposite view from 9th Peters, 224, was the case of a perfect title, in the city of New Orleans by dedication, and therefore, did not include this question.</p> <p>The entry of De Yobiscey, claiming title, interrupted the possession of defendant. [11 Peters, 52.]</p>

<p>1. The writ issued against B. as sheriff of Monroe county, and several persons as his sureties, but not being served on the principal the action was discontinued, and his sureties alone declared against, alledging as a breach, that B. after the execution of the bond as sheriff received divers sums of money, to wit: the sum of twenty-five hundred dollars, which was due to, and belonging to the county of M.; which though often requested he failed and refused to pay: Held, that although the breach was general, and omitted to state the circumstances under which the money was received, yet it was good after verdict and judgment, if not at common law, certainly under the act of 1824, “ to regulate pleadings at common law.”</p>

<p>Í. Evidence being given of a former possession of land by a defendant in execution, accompanied by acts of ownership,; and proper evidence being shown of the sale and conveyance of all his right, under a sale by the Marshal of the United States, by virtue of a judgment and execution, it is not an assumption of . a fact for the Court to charge the jury, that his possession and improvements vested in him such a legal title, as to enable him to maintain ejectment against one oustiñg him.</p> <p>2. A prior possession, accompanied by acts indicating ownership of land, by a defendant in execution, will authorize a recovery, by one having his right under a conveyance from the Marshal of the United States, against one found afterwards in possession of the same land, but showing no title.</p> <p>3. A mere trespass by entry upon another’s right, does not make an adverse pos. session; to constitute which, a claim, or color of title, is necessary.</p>

<p>Error to the County Court of Talladega.</p> <p>This proceeding was a supersedeas, obtained by the plaintiff in error, Spence, to an execution which had issued against him, on a judgment of this Court, as surety to a writ of error bond. At the return term of the supersedeas, the defendant demurred to the petition, and his demurrer being overruled, he traversed the facts of the petition in the following words: “And the said Walker comes by attorney, and denies the statement and matters in the foregoing petition contained, and takes issue thereon;’7 to which the plaintiff replied, “that he ought not to be precluded, by any thing in said defendant’s traverse joined, because he says, the same is not in law sufficient to bar the plaintiff his said remedy, sought by his petition, and this he is ready to verify, wherefore he prays judgment, that said defendant answer over,” &c.</p> <p>The plaintiff’s counsel moved the Court, to strike out this writing, which motion the Court granted. The counsel for the plaintiff then stated they would take a nonsuit, and refused to offer any evidence in support of the petition, or to proceed further in the cause, although the defendant’s counsel announced his readiness to go to the jury, on the issue taken by him.</p> <p>The Court then rendered judgment against the plaintiff, and Stinnett as his surety, on the bond for the supersedeas.</p> <p>The assignments of error are—</p> <p>1. In overruling the demurrer to the traverse of the defendants below.</p> <p>2. In rendering judgment.</p>

Writ of error to the County Court of Greene. The defendants in error declared against the plaintiff for work and labor done, goods, wares, &c. sold and delivered, and upon an account stated. The cause was tried upon the pleas of non-assumpsit, payment and setoff; the jury returned a verdict for the plaintiff below, and judgment was rendered accordingly. On the trial the defendant excepted to certain decisions of the Court.

<p>1. In an action of slander the character of the plaintiff is not in issue before the jury, unless it is attacked by plea of justification, or by evidence at the trial; evidence therefore of his good character is inadmissible in the first instance, and before evidence to impeach it has been offered by the defendant.</p>

<p>Error to the County Court of Clarke county. ■</p> <p>moved to dismiss the writ of error.</p>

Writ of error to the Circuit Court of Shelby. This was an action of trespass vi et armis, at the suit of the defendant in error, against the plaintiff. The declaration charges, that the defendant, with force and arms, wrongfully and maliciously assaulted and seized the plaintiff, and detained him in custody, without any reasonable or probable cause, for the space of fifteen hours.

Writ of error to the Court of Chancery for the 12th District, of the Southern division. This bill was filed by Thomas A. Powell and others, claiming to be the devisees of Drury Powell, deceased, against Martha A. Powell, as administratrix of Seymour Powell, deceased, who in his lifetime was the sole' executor of the will of the said Drury Powell.

The bill was filed by the plaintiff in error, and charges the purchase by the complainant, of certain, lands, and slaves of one Betts, and that he agreed in part consideration thereof, to pay one thousand dollars, towards satisfying a judgment then, subsisting against the vendor, and a debt due by him to the Bank at Montgomery — that he received a deed for the land and slaves so purchased, and went into possession thereof— that two other creditors of Betts have since…

<p>1. A memorandum made by the defendant after the adjournment of the Court, upon the papers of a cause which had been dismissed, consenting to reinstate it, cannot be regarded as a part of the record, and will not bar a writ of error, or prevent the revising Court from correcting the erroneous dismiss»1</p>

Writ of error to Circuit Court of Coosa. Claim of property interposed, under the statute, by Thomas T. Wilkins as trustee of Ann T. Wilkins, to a slave levied on by the sheriff of Coosa, by virtue of an execution, at the suit of the Bank, against the goods, chattels, &c., of Thomas G. Wilkins, Thomas T. Wilkins, and William L. A. McLeray.

<p>Error to the Circuit Court of Mobile County.</p> <p>Motion to quash a forthcoming bond, and execution issued thereon, because the bond does not describe the judgment and execution on which it was given, and because one of the defendants in the execution, was dead at the time it was issued.</p> <p>The Court below overruled the motion, from which this writ is prosecuted.</p> <p>submitted the cause.</p>

<p>Writ of error to the Circuit Court of Morgan.</p> <p>This was a summary proceeding by notice and motion, at the suit of the plaintiff in error, to recover the amount of a promissory note made by the defendant as principal and two others, as his sureties, on the 22d February, 1837, for the payment to the plaintiff of the sum of two-thousand dollars, ninety days after date. The defendant plea'ded several pleas, one of which was the statute of limitations; to this latter plea the plaintiff replied in due form, that the note sued on, was the sole and entire consideration of an extended note for nine hundred and fifty-four dollars and seventy-five cents, dated the 27th of September, 1837, and purporting on its face to be made by the defendant as principal, with the same sureties as subscribed the first note, payable, as provided by the act of 1837, entitled “ an act to extend the time of indebtedness to the Bank of the State of Alabama and its Branches, and legalizing the suspension of specie payments and for other purposeswhich note was discounted by the plaintiff, in extension of the, note now in suit, on the 11th of October, 1837, under the belief that the signature thereto, purporting to' be that of the defendant was genuine. It is then alledged that suit was brought on the latter note, and'verdict and judgment rendered in favor of the defendant, on the plea of non est factum; and that on the 2d November, 1843, and within one year after the determination of that suit, whereby, and not until then, the fraud in the execution of the extension note was made known, the plaintiff commenced the present suit on the original note.</p> <p>There was a demurrer to this replication, which was sustained, and the plaintiff declining to reply further, a judgment was rendered in favor of defendant.</p> <p>made the'following points: 1. The defendant’s liability was not merged in the .extension note, because he was not a party to it, and is consequently suable on the original note. [2 Porter’s Rep. 411; 11 Johns. Rep. 409; 15 Id. 241.] 2. In analogy to the statute which authorizes a plaintiff to bring another action within one year after his judgment has been reversed or arrested, the statute of limitations did not begin to run against the plaintiff until the expiration of that period, after the judgment in favor of the defendant, upon the extended note. [Clay’s Dig. 328, § 86.] The extension note was a fraud upon the plaintiff, and a reasonable time, at least, should be allowed to sue upon the original note, after the fraud was discovered. Further, the statute of limitations was suspended upon the original until the extended note was ascertained, by the verdict and judgment, to be a forgery, as to the defendant. [3 Porter’s Rep. 395; 14 Mass. Rep. 425; 3 Pick. Rep. 261; 4 Id. 2S3.J</p>

Writ of error to the County Court of Mobile County. Assumpsit by Newhouse & Co. against Redwood, as the administrator de bonis non of Goodwin, on the common counts. The defendant, with other pleas, pleaded the statute of limitations, and to this the plaintiff replied, that one Wm. S. Paine, the administrator in chief, had, within three years next before the commencement of the suit, promised, &c.„.

Writ of error to the Circuit Court of Benton County. Debt on a sealed note, commenced by attachment, by the plaintiff against the defendant in error-. The defendant pleaded in abatement, the pendency of a former suit, commenced also by attachment, against him by the plaintiff for the same cause of action. The plaintiff replied, nul tiel record.

Writ of error to the Circuit Court of Montgomery. The intestate of the defendant in error declared against the plaintiff in indebitatus assumpsit. The declaration embraced all the common counts, and the cause was tried on issues joined upon the pleas of non assumpsit, payment, set off, and statute of limitations. Certain questions of law were reserved on the trial, at the instance of the defendant.

From the Circuit Court of Barbour, on questions reserved as novel and difficult. The prisoner was indicted in Henry county for an assault, with intent to kill, committed on Williams. A change of venue was had to Barbour county, where, at the Spring Term, 1844, the proceedings were had, out of which the questions referred to this Court, arose.

Fhom the record it appears, that Moore was, on the 16th of June, 1S41, appointed administrator of the estate of Jacob Carroll, and executed a bond with Michael Carroll, John Boyd and Emanuel M. Walker, as sureties, and took upon himself the administration of the estate.

Writ of error to the Circuit Court of Madison. This was the trial of the right of property, pursuant to the statute.

Action- on the case by Jones against Kirksey, for suing out an attachment, ancillary to a suit previously commenced, without any reasonable or probable cause, but for the purpose of vexing and harassing the plaintiff. There is no express averment in the declaration, that the attachment was wrongfully, vexatiously, or maliciously sued out. The defendant demurred. The demurrer was overruled.

<p>1. Under the law authorizing the testimony of parties to the suit to be taken, the testimony of one living out of the State, may be taken, by a commission issuing by order of the Court.</p> <p>2. Notice to the attorney of record is sufficient.</p>

Writ of error to the Circuit Court of Macon. This was a motion against the sheriff of Tallapoosa, for the failure to pay over money collected on a fieri facias. The following facts were agreed, viz: The execution in favor of the plaintiff was issued from the Circuit Court of Macon, in December, 1842, upon a judgment recovered against Fitzpatrick and Mims, for the sum of $2,062 77, and costs.

<p>Í. Where a decree has been made by the Orphans’ Court directing an executor to convey land, which his testator in his lifetime had sold, and agreed by bond to make titles for, the jurisdiction of that Court attaches upon the filing of a petition setting out the sale, the agreement by bond, &e., to convey, the death of the ob-ligor, and the grant of letters by the Court to which the petition is made; and such decree cannot be collaterally impeached when the jurisdiction has attached, though there may be error in the proceedings.</p> <p>2. An admission that the damages for the mesne profits shall be entered at a certain sum, if the plaintiff is entitled to a judgment, dispenses with proof that the defendant was in possession at the time of suit.</p>

<p>Error to the County Court of Sumter.</p> <p>Assumpsit by plaintiff, against defendant in error, upon a promissory note. The defendant pleaded non-assumpsit, set off, and payment.</p> <p>Upon the trial, the defendant proved, that the plaintiff, after the note sued on was made, agreed with the defendant, that any note he might procure on him should be an off set to the note of plaintiff. The plaintiff’s counsel objected to parol proof of this agreement, but the Court overruled the objection. It was proved, that when Joseph W. Perry, for whose use the suit was brought, presented the note for payment to the defendant, he refused to pay, because he held a note on the plaintiff. It was also proved, that the plaintiff admitted, that the note offered in evidence as an off set, which was payable to ■ one Sims, or bearer, but was not indorsed, was genuine. There was no proof when Perry obtained an interest in the note sued on, or when the defendant obtained the note offered as an off set, and showed no interest in it further than the possession.</p> <p>The counsel for the plaintiff moved the Court to charge, that the note being payable to bearer, was not a legal off set in the hands of the defendant; which the Court gave, but also charged, that if there was an agreement between the plaintiff and defendant, that any note the latter might obtain against the former should be an off set, then the note would be a set off, and the possession of it was sufficient proof of interest. To all which the plaintiff excepted, and which he now assigns as error.</p> <p>cited 1 Ala. Rep. 43; 7 Porter, 549.</p> <p>cited 2 Ala. Rep. 284; 4 Id. 663; lid. 41; 3 Id. 256; 1 Porter, 359; 3 Stewart & P. 35,</p>

Writ of error to the Circuit Court of Lawrence. The defendant in error declared against the plaintiff in as-sumpsit, alledging, that on the 19th February, 1836, he was indebted to him in the sum of two hundred and fifty dollars, for so much money before that time had and received; and also in an equal sum, for so much money paid, laid out and expended, &c. The defendant pleaded non-assumpsit, payment, set off, and the statute of limitations.

Writ of error to the Circuit Court of Mobile. Ejectment to recover certain lands in the city of Mobile. Quinn was the tenant in possession, but James McWhinnie was admitted to defend as landlord. The title made by Wiswall, the plaintiff, is this: In the year 1830, and for several years afterwards, one John Wiley was in possession of the premises sued for. On the 10th June, 1839, one Hunt recovered judgment in the County Court of Mobile, against Wiley, for $937.

<p>1. Property sent home with a new married couple, will be presumed to be a gift, unless at the time a less estate is declared, or limited. Whether such a transaction is a gift, or a mere loan, is a question of intention ; any fact therefore, which affords evidence of such intention, is admissible as a part of the res gestee,</p> <p>2. A declaration by the parent at or about the time, is evidence of his intention, though made in the absence of the son-in-law; a declaration made previously, or act done, upon the marriage of another daughter, as to his intention in respect to his future sons-in-law, is not admissible in evidence.</p> <p>3. When, upon the taking of a deposition, a witness is examined in chief upon matter not admissible in evidence, the opposite party may conditionally cross examine the witness upon the same subject, and if the examination in chief is rejected, the cross examination will share the same fate. The cross examination as to other matters would be admissible.</p> <p>4. When a commission to take a deposition does not contain the time, and place, at which it is to be taken, but the commissioner sends enclosed with the deposition, a written notice, which does set forth the time and place, and which is attached to the deposition; if he certifies, that pursuant to, or by authority derived from, the enclosed commission, he took the deposition, it will be evidence prima facie, that the deposition was taken pursuant to the notice.</p>

<p>Writ of error to the County Court of Mobile.</p> <p>This cause was commenced before a justice of the peace and removed by appeal, to the County Court. In the County Court a case was agreed and submitted'for decision. The facts are these, the plaintiff in error caused a capias ad satisfaciendum to be issued by a justice of the peace, against the body of David Jones, for the sum of thirty-five dollars and costs; this execution was founded on a judgment and affidavit, such as the statute requires, is tested the 15th of February, 1843, and was placed in the defendants hands, as a constable, to execute, who made the following return: “ The defendant has applied for the benefit of the bankrupt law.” On the Slst of February, 1843, Jones applied for the benefit of the bankrupt law by filing his schedule, &c., in which the plaintiff’s claim was embraced. In May, 1843, he was declared a bankrupt, and obtained his final discharge in due course of proceeding,</p> <p>On these facts, the Court was to render judgment in favor of the plaintiff, for the amount of the execution against Powers and his sureties, if they did not excuse the failure to execute it; otherwise, judgment was to be given for the defendants. The Court adjudged that the constable was justified in the return of the execution, and thereupon reudered a judgment against the. plaintiff for costs.</p> <p>made the following points: 1. There is no reason assigned for the failure to execute the ca. sa. during the six days it was in the constable’s hands before Jones’ application for the benefit of the bankrupt law. 2. The defendant’s became liable immediately upon the return of the execution, and the subsequent discharge of Jones cannot relieve them. [Givens v. Robbins, 5 Ala. Rep. 676; McDougald v. Reid & Talbot, Id. 810.] The liability ofan officer for failing to proceed upon an execution, cannot be discharged by the subsequent release of the defendant therein, from his debts as a bankrupt.</p>

<p>Writ of error to the Circuit Court of Dallas County.</p> <p>MotioN under the statute, by Johnson v. Holloway, as sheriff of Dallas, for failing to return an execution, (a jifa.) issued at the suit of Johnson against John Holmes, on the 25th November, 1841, for #344 17. Judgment was rendered against Holloway, g.nd also against several others as his sureties of office.</p> <p>After the plaintiff had proved that the execution had been issued, and placed in the defendant’s hands, as sheriff, and that it had not been returned, the defendant offered to show as an excuse for his default, that the defendant in execution died after the rendition of the judgment, and before this execution was issued, and also, that no execution had previously issued thereon. This evidence the Court refused to admit, and rejected; Whereupon the defendant excepted, and now assigns the same as error. Another question is also raised on the record, relating to a supposed discontinuance, but the opinion of the Court proceeds on the first point only.</p>

<p>Error to the County Court of Monroe.</p> <p>Debt by the defendant, against the plaintiffs in error, on a promissory note of the defendant’s intestate.</p> <p>Plea, that the plaintiff’s intestate was indebted to the intestate of the defendant, in a larger amount than the note sued on.</p> <p>Replication, that the estate of the plaintiff’s intestate had been declared insolvent; to which the defendant demurred. The Court overruled the demurrer, and the defendants failing to plead over, and by leave of the Court withdrawing their plea, thereupon the Court rendered judgment by nil dicit.</p> <p>The defendants prosecute this writ, and assign for error the judgment of the Court on the demurrer to the replication.</p>

The case made by the bill of the plaintiff in error, is substantially as follows, viz : The defendants, T. & W. Dothard, about the first of August, 1840, recovered against their co-defendants, Weir and Adrian, four several judgments for fifty dollars each, before John E. Clark, then a justice of the peace of the county of Randolph; Weir and Adrian executed one appeal bond, in the sum of four hundred and seventy-five dollars, to which the former placed the plaintiff’s name as…

<p>Writ of error to the Circuit Court of Butler.</p> <p>MotioN, under the statute, by Wallace, as clerk of the Supreme Court, in the name of Arrington, the notice of which issued to J. B. Windham, as sheriff of Butler, and to Taylor, Smith, Womack and Otts, as his sureties, for failing to pay over the amount of a certain fi. fa. for costs, issued at the suit of Arrington, against one Jones, and returned satisfied by the said sheriff. Notice of the motion was served upon Taylor and Smith, and as to the others, the notice was returned not found.</p> <p>Neither in the motion, nor the notice served, is there any averment that the money was ever demanded of the sheriff, or of his sureties. The defendants served with process demurred to the notice of the motion for this, reason; and the Court sustained the demurrer, and gave judgment for the defendants. This is now assigned as error.</p> <p>cited Clay’s Dig. 311, §§ 31, 32; lb. 310 § 24; Hughes v. Hall, 5 Ala. Rep. 63; Clay’s Dig. 536, § 14.</p>

Assumpsit on a promissory note, made by the defendant, by which he promised to pay “H. Ferguson, Treasurer,” one hundred dollars. The defendant pleaded non assumpsit, and two special pleas, which need not be set out, as the same questions were presented, by a motion for instructions to the jury. The plaintiff proved that the note was executed in payment of the first five per cent, due upon the subscription of the defendant, to the stock of the corporation.

<p>1. In appeals from justices of the peace it is not necessary for the parties to make up an issue upon paper, and where the defendant relies on a tender, it is competent for the Court to require him to prove every fact, necessary to make out a plea such formally pleaded. And where in such case the word “tender,” is found written in the transcript, but not signed by counsel, it cannot be intended that it was received by the plaintiff as a plea, and thus preclude him from insisting at the trial that the money was not in Court.</p> <p>2. Quere ? — Is a justice of the peace previous to the institution of a suit, such an agent virtute officii, as is authorized to receive money of a debtor on a claim placed in his hands to he sued.</p>

<p>1. When the plaintiff styles himself to be sheriff and ex officio administrator of the estate of one deceased, and sues on a note payable to another person as administrator ex officio, of the same intestate, and the declaration alledges that the term of office of the payee having expired, the plaintiff was duly appointed ex officio administrator de bonis non, upon error, after a judgment by default, the title of the plaintiff to sue on the note must be considered as sufficiently stated.</p>

Assumpsit on promissory note, by defendant against plaintiff in error. Pleas — non-assumpsit, payment, set off, and accord and satisfaction. Upon the trial, the plaintiff read the note sued on to the jury, which was dated I7th May, 1838, for the payment of $488, payable the 25th September, after the date, and was executed by the defendant, by David S. Walker as his agent.

Writ of error to the Circuit Court of Lowndes. This was an action of assumpsit at the suit of the defendant in error against the plaintiffs, for money had and received, for neglect as attorneys in not collecting a note placed in their hands for collection, for discharging and acquitting the parties thereto from its payment, &c. The cause was tried by a jury, who returned a verdict for the plaintiff, on which judgment was rendered.

<p>1. In the statutory action of detinue when the plaintiff consents to a nonsuit, if a ■judgment for costs is entered against his surety, as well as himself, it will be considered as a clerical misprision, and may be corrected at a subsequent term, on motion of the defendants: but if 3uch a judgment was ordered on due consideration, although it is irregular for one judge to correct the errors of another, the plaintiff could not be heard to assign error, as no injury has resulted to him from the amendment.</p>

The bill was filed by the plaintiff in error, Wilson, as trustee in a deed made by William J. Alexander, to secure the payment of a debt to John Irwin. Pope and Son, having obtained judgment against Alexander, and levied their execution on a portion of the slaves conveyed by the deed, and Desha, Sheppard & Co. having also attached certain of the slaves, for a debt due them from Alexander, the complainant filed his bill for an injunction.

Writ of error to the County Court of Clarke. This was an action of debt on a specialty, dated the 27th of February, IS30, by which the plaintiff in error promised to pay to the defendant’s testator, the sum of eighty dollars, on the first of January thereafter for the hire of Rachel and her child Emma, and her daughter Ann.

Writ of error to the Circuit Court of Wilcox. Motion, under the statute, by Watts, against Mason and others, as the securties of Jonathan M. Hill, sheriff of Wilcox county, for judgment against them, upon a suggestion that the said Hill, by the use of due diligence, could have made the money upon a certain execution placed in his hands for collection, issued at the suit of Wills, against the goods and chattels, &c. of William S. and Joseph W. Patton.

Attachment commenced by the defendant, against the plaintiff in error. The defendant in error made affidavit before a justice of the peace, that Edgar Loomis, administrator of Eli 0.

Ex parte, Leonard A. Weissinger and James Crook. WeissiNGER and Crook represent, by the affidavit of the former, that a judgment was rendered against them at the last term of this Court, as the sureties of Samuel Child, in a bond for the prosecution of a writ of error, sued out to revise a judgment recovered in the County Court of Perry, against the latter, by William Johnson : that the judgment of this Court was rendered on motion, in the absence of the bond, upon the…

<p>Writ of error to the County Court of St. Clair.</p> <p>WiCKRim'E sued out an attachment against the effects of Edwards, returnable to the County Court of St. Clair. The sheriff returned, that the defendant had neither goods or chattels, lands or tenements, to be found in his county, to make a levy, but summoned Edward Edwards, as a garnishee. At the return term of the attachment, the garnishee appeared and answered to this effect: That he had, at the service, &c. in his hands, belonging to the estate of Thomas Edwards, deceased, the sum of one hundred and twenty-three dollars, after paying all reasonable expenses, and that the said Thomas Edwards, the defendant in this case, is the legal heir of the said Thomas Edwards, deceased, and that the said sum is the distributive share of each heir; and which sum he, the said garnishee, was ready at any time to pay out to the proper person, when legally authorized so to do by law.</p> <p>At the next ensuing term of the Court, a judgment by default was rendered in the suit against the defendant, but the damages being uncertain, an inquiry was directed to be had at the next term. At the same term, on the motion of the garnishee, it was ordered,that he be allowed to make a further answer to the garnishment. At the June term, 1844, the plaintiff had his damages assessed by a jury, and a final judgment was then rendered. At this term the garnishee answered further, that the sum of money acknowledged to be held for Thomas Edwards, had been transferred to John F. Edwards, previous to the service. A notice was then issued, under the statute, to said John F. Edwards, to contest his right to the money with the plaintiff, and such proceedings were had upon an issue, that a jury determined the right to be in said John F. Edwards.</p> <p>It is now assigned for error, that there was no service of the attachment, sufficient to bring the defendant before the Court. Also, that judgment should not have been rendered against the defendant in attachment, as the answer of the garnishee disclosed no indebtedness.</p>

This action was commenced before a justice,to recover damages for unlawful injury of stock, viz: hogs, by the plaintiff, against the defendant in error. Judgment being given for the plaintiff, the defendant appealed to the Circuit Court. In that Court, the case came on to be tried, the amount claimed being under twenty dollars.

<p>1. The writ was returned executed on C. only, who pleaded, as to G. there was no return ; the declaration was against both G. and C., and both their names were stated as defendants on the margin of the judgment entry, which recited that the parties came by their attorneys, and thereupon came a jury, &c., “ to try the issue joined,,” who find for the plaintiff, the amount of debt declared for, with damages : Thereupon it is considered “ that the plaintiff recover of the defendants the aforesaid debt,” &c.: Held, that they only were parties who had united in the issue tried ; that the judgment was a consequence of the verdict and intended to conform to it; and that the substitution of the word u defendants” for defendant, would be treated as amere clerical misprision.</p>

Writ of error to the Circuit Court of Greene. Teespass by Simonds against Gulley, for taking and carrying away a horse. At the trial, the proof on the part of the plaintiff was, that at the time of the trespass complained of, he had a family, and that the horse taken by the defendant was the only one that the plaintiff owned.

The bill was filed by the intestate of the plaintiff in error, in 1836, and charges, that in 1827, or 1828, he was under the necessity of raising money, and applied to the defendant, who offered to let him have $450, the amount wanted, provided the complainant would give him a lien on a negro man, by the name of Uriah.

The defendant was indicted in the Circuit Court of Randolph, for unlawfully, wilfully, and maliciously, killing, by shooting with a riñe gun, a certain spotted bull of the value of twenty dollars, belonging to some person to the jurors unknown.

<p>Writ of error to the Circuit Court of Benton.</p> <p>Assumpsit by Mahoney against Barley Chandler and James Chandler. The declaration describes a contract between the parties in which the defendants on consideration that the plaintiff agreed to rebuild the saw mill and forebay, at such place as might be selected, and furnish the husk frame and running gear of the grist mill, and to have both of the mills in opera-ration by the month of February next, following' the agreement undertook and then and there faithfully promised the plaintiff to build a good dam on the creek at Nisbet’s mill place, on the same foundation whereon the old one stood, of sound large timber of sufficient height to turn the water into the race, and sufficiently strong to breast the water. The breach is laid that the work was not performed in the manner agreed, but that the dam was so negligently built as to be wholly unfit for the purpose designed and intended ; whereby the plaintiff lost all the profit, benefit and advantage, &c. &c.</p> <p>At the trial, upon the general issue, the plaintiff offered certain articles of agreement, entered into between John Nisbet of the first part, the defendants of the second part, and the plaintiff of the third part, by which the defendants bound themselves to build a mill dam in the terms set out in the declaration. The plaintiff was to perform the work, stated in that connection in the declaration; and Nisbet was to furnish the materials necessary for the same; that is, to rebuild the saw mill and forebay, and to finish the husk frame and running gear of the grist mill.</p> <p>The agreement then proceeds as follows:</p> <p>“ The said Chandlers for the services aforesaid, are to go into possession of said mills for the year 1S43, and retain three-fifths of the profits of the saw mill, and three-fourths of the grist mill, and to pay over or account to Mahoney at the end of each quarter for his services, one-fifth of the profits of the saw mill, and one-fourth of the grist or grain accounts or lumber, the kind he may require.” There are some expressions in the written contract, which leave it doubtful, whether the timber for the dam, as well as for the mills, was not to be furnished by Nisbet.</p> <p>The Court excluded this agreement from the jury, and the plaintiff excepted.</p> <p>Afterwards, as the judgment entry recites, he asked and obtained leave to take a nonsuit, and judgment to that effect was given. The plaintiff now prosecutes 'this writ of error, and assigns that the Court erred in excluding the agreement offered as evidence.</p> <p>cited Hill v. Bishop, 2 Ala. Rep. 320; 3 Porter, 231; Bell v. Rhea, et al. 1 Ala. Rep. N. S. 83 ; Wainwright v. Townsley, 1 Stew. 29.</p> <p>insisted, there was no error in excluding the agreement as the contract was not made between these parties, but between them and Nisbet. However, this might be, the plaintiff cannot review the error, as afterwards he consented to be nonsuited. [Cain v. Byrd, 1 Stewart, 189.]</p> <p>Rice, in reply argued, that the nonsuit was the consequence of the previous exclusion, and therefore it ought not to prejudice the plaintiff. [Leavitt v. Friou, 4 Ala. Rep. 335 ; 6 Ala. Rep. 226.]</p>

<p>Error to the County Court of Tuscaloosa.</p> <p>This was a motion by the defendant, against the plaintiff in error. The record discloses, that Dunlap and Miller, were the sureties of one Lee, to the State Bank; that the Bank, by motion, obtained a judgment against Lee, and his sureties. That execution issued thereon, and was levied on certain slaves, the property of Lee. That Lee gave a forthcoming bond to the sheriff for the delivery of the slaves, on the day of the sale, with Foster as his surety. That the bond was forfeited, and that execution issued thereon against Foster, as well as the parties to the original judgment, and the money being made out of Foster, he sought to recover contribution from Dunlap & Miller, as co-securities with him for Lee. The Court rendered judgment against the plaintiff in error, for one third part of the amount of judgment — from which he prosecutes this writ.</p> <p>If .this motion can be sustained, it must be by authority of one of the statutes giving the right to this remedy; but none can be found authorizing a remedy by motion in such a case as the present; because, in truth, Foster was the surety of Lee, and not the co-surety of the plaintiff in error.</p> <p>contended, that Foster was either co-surety with the original sureties of Lee, or else they stood towards him in the relation of principal, and in either event this motion was sustainable.</p>

<p>1. An order of the Orphans’ Court requiring the shares of several distributees, in the slaves of an intestate’s estate to be set apart and allotted to them pursuant to their petition — appointing commissioners to make distribution accordingly— and directing further, that the administrator should produce the slaves required by the commissioners, and afford all necessary facilities for making the division, is such a final order within the statute, as may be revised by writ of error.</p>

<p>1. The act of 1843 which directs appeal and certiorari cases, then pending in the Circuit Court of Mobile county, to be returned to the County Court, does not call upon the Court to repudiate an appeal cause of its own mere motion ; and when a case depending in that Court, at the passage of the act, is determined there without objection, the judgment will not be reversed.</p>

<p>Error to the Chancery Court of Madison.</p> <p>The bill was filed by the defendant in error, and alledges, that on and before the 12th of October, 1833, there was in contemplation between William H. Moore, and complainant, a contract, by which he was to purchase of the former, his several tracts, or parcels of land, including the lands purchased by him of the heirs of Daniel McDuff, containing about nine hundred and eighty acres, (which are described,) and including a lot of sixty-two acres, which Moore had purchased of the heirs of McDuff, for which he was to pay the sum of eight thousand dollars, iu four payments. That on the day aforesaid, the purchase was completed, and a memorandum in writing executed, setting forth the lands sold, and the terms of the sale, but by the mistake of complainant, and the fraud of Moore, the tract of sixty-two acres was omitted. That on the 30th October, 1833, Moore and wife, executed to him a deed for the lands, in which the tract of sixty-two acres were also omitted, and that he did not discover the mistake, until after the execution of the deed, although it was well known to Moore. That he did not discover the omission in the deed, until December, 1833, when he demanded of Moore to convey the sixty-two acres to him, which the latter refused.</p> <p>That some time after the purchase by complainant, Moore sold the sixty-two acres of land, to Robert Freeman, who purchased with knowledge of complainant’s right. That Moore and Freeman, have been ever since in possession of the land, which is equal in quality to the residue of the tract. That Moore and himself agreecl to leave the controversy to the arbitrament of attorneys of the Supreme Court, to be chosen by the parties; and that testimony might be' taken by either party on notice, and admitted the existence of certain facts as the basis of the arbitration. The agreement bears date the 1st November, 1834, but need not be here set out, as it is adverted to, in the opinion of the Court. The arbitration was not made from the omission of Moore, to appoint a referee, though one was appointed by complainant.</p> <p>The prayer of the bill is for a title to the sixty-two acres.</p> <p>Moore in his answer, denies that he sold the sixty-two acres claimed in the bill. Admits he stated in a previous conversation, that he had about nine hundred and eighty acres of land for sale, for which he was willing to take @8,000. That when complainant examined the land, he did not ask respondent to show it, but relying ou the examination he had made himself, and with full knowledge of all the facts, and the declaration of respondent at the time, that he had not yet obtained title for this sixty-two acres, he entered into the written agreement for the purchase of the nine hundred and twenty acres. Subsequent to this, respondent obtained a deed from McDuff for the sixty-two acres. He denies that there was any contract previous to the written agreement. He admits the admissions made by him of facts, but insists they are not binding on him, as they were not acted on, and were obtained from him, without a knowledge of their import, and were made with reference to an amicable adjustment, &c.</p> <p>Freeman answers, and admits the purchase of the land from Moore, for which he says, he paid a full and valuable consideration, and denies that at the time of his purchase, he knew that complainant had any claim to the land in question, and denies all fraud or collusion.</p> <p>A supplemental bill was filed by the complainant, in which he alledges, that when Moore sold the land to him, and made him a deed therefor, and also when he sold to Freeman, that he had not the legal title to the sixty-two acres, described in the original bill. That although he had previously purchased it from R. McDufF, had paid him for it, and obtained possession of it, yet, that by mistake, McDuff conveyed to him a different piece of land. That McDuff is dead, leaving infant heirs, who are named and made parties. The prayer of the bill is, that they be compelled to convey the title to complainant.</p> <p>The heirs, so far as they answered the bill, do not admit the allegations of the supplemental bill, and require proof.</p> <p>A bill was also filed for an injunction, against the collection of $500, part of the purchase money, remaining unpaid.</p> <p>The Chancellor, at the hearing, considering the allegations of the bill, and supplemental bill, as established, and that the complainant was entitled to the relief he sought, decreed, that the title to the sixty-two acres be divested out of McDuff’s heirs, and vested in the complainant, and referred it to the master, to state an account between the parties, who reported, that complainant was indebted to Moore on account of the purchase, #803 33, and vras entitled to recover for rent, #805 17, which was approved and confirmed by the Chancellor.</p> <p>From this decree, the defendants prosecute this writ, and assign many errors, which are noticed in the opinion of the Court.</p> <p>argued, that the effect of the bill, was to enforce a parol contract for the sale of lands, when all the evidence in the cause showed, that there was no contract whatever for the sale of the land,-until the written agreement was entered into, and parol evidence is inadmissible to contradict that agreement. [1 Fonb. 200, note O; 2 Atk. 383; 3 Id. S; 3 H. & M. 388; 2 Yesey, 417; 1 Johns. Ch. 428; 1 H. & B. 659; 5 Rep. 25; 2 Br. C. C. 218; 7 Yesey, 21S; 4 Taunt. 786 ; 1 Phil. Ev. 567 ; 3 lb'. 1466, note 984.] This objection appears upon the bill, and the statute of frauds need not be pleaded. [Story E. P. 389.] Where a complainant seeks to rectify a written agreement, varied by fraud, mistake, or surprise, and then enforce the agreement in its new form, the statute of frauds will bar relief.</p> <p>But there is no fraud shown. Clay did not rely upon Moore, but examined for himself, and there was no obligation upon Moore, to apprise him of his mistake. [Sug. Ven. 2,6 Am. from 10 Lond. ed.; 1 Story Eq. 216, 206, 201, 159 ; 1 Fonb. 379 ; 1 Ala. Rep. 168 ; 2 Id. 635 ; 5 Id. 593.]</p> <p>The admissions of Moore, made after the sale, were insufficient to make out the case, nor could it be made out by that kind of testimony. [2 Johns. Ch. 630, 585; 6 Vesey, 328; 1 Brown, C. C. 92; 3 Id. 168; 1 Yesey, 241; 4 Bess. 211; 1 Wend. 625; 6 Id. 26S; 1 Bibb, 611; 2 Id. 311; 5 Martin Lou. N. S. 18; 6 Monroe, 136 ; 2 J. J. M. 65; 4 Id. 101.]</p> <p>The fact that Clay did not attempt to take possession of the sixty-two acres, shows that he waived his right to it, or renders it incredible that he supposed he had purchased it. [3 P. Wms. 193; 1 Vesey Jr. 226; 12 Id. 27; 11 Id. 464 ; 2 Swan-ston, 222; 3 Id. 168; 4 B. C. C. 495; 4 Rand. 478 ; 3 Meri-vale, 53,124; 10 Vesey, 505.]</p> <p>The deposition of Bradley should have been rejected, because the bills and notes were not produced.</p> <p>The Chancellor allowed more for rent than was charged in the bill, to be the value of the lands. [9 Cranch, 19; 7 Wheaton, 522.]</p> <p>Freeman denies notice — the bill itself could not be notice of facts happening previous to service of subpoena. The deposition of Moore to prove that Freeman was a purchaser, for a valuable consideration, should have been received, as his interest was precisely balanced between Clay and Freeman.</p> <p>The transcript from the Orphans’ Court, showing the division between the heirs of McDuff was utterly void, and therefore, the Court cannot divest the title of the heirs of McDuff.</p> <p>The offer of Moore was to sell a particular tract of land. Clay examined the tract, and was willing to purchase it, under the impression, that it contained the tract of sixty-two acres purchased from McDuff, although he then supposed it contained but nine hundred and' twenty acres. Moore was aware of the mistake, into which Clay had fallen, and did not correct it, but suffered him to go on, and complete the purchase. This was a fraud, which Chancery will relieve against, against Freeman, as well as Moore, if the former purchased with notice of complainant’s equity. [3 Peters, 210 ; 1 Story Eq. § 156 — 9, 158, 160, 201; § 192, 204.]</p> <p>Freeman upon his answer must be treated as a purchaser with notice. He does not alledge, whether the title he obtained was legal or equitable. [Sugden on Ven. 543, 555.] Nor what consideration he agreed to pay for the lands. Nor that he paid any part of it before notice. [2 Atk. 631; 7 Vesey, 290; 1 Johns. Ch. 566; 8 Wheaton, 449; 10 Peters, 179; 1 H. & J. Ch. 261; 5 S. & P. 215; Milford’s PL 222.]</p> <p>Having in his answer alledged that he paid the purchase money to Martin & Pleasants, he could not afterwards prove that he paid it to Moore, admitting Moore to be competent. But Moore does not state when the money was paid. [Gress-lyEq. Ev. 9.]</p> <p>If Freeman purchased without notice of Clay’s equity, he had but an equity himself, and being acquired subsequent to that of Clay, must yield to it. [10 Peters, 179, 210; 2 Fonb, 301.]</p> <p>Moore was not a competent witness. [2 Johns. 394; 4 Id. 293; 6 Id. 523.]</p> <p>The transcript of the record from the Orphans’ Court, is ample to show a division of the land, and that the sixty-two acres was allotted to R. McDuff, and cannot be impeached collaterally. [6 Porter, 219.]</p> <p>The last bill alledges the payment of all the purchase money but ®500, and not being answered by Moore, is evidence against him as an admission. [3 Porter, 125; 1 Id. 375; 1 Bibb, 466; Clay’s Dig. 554.]</p> <p>The admission of Moore upon the submission to arbitration, was evidence against him. [4 Phil. Ev. 10; 2 Pick. 285; 4 Id. 377; 21 Eng. Com. Law, 355; 22 Id. 439; 1 Esp. Rep. 143; 3 Id. 113.] But the proof of the fraud is full without it.</p> <p>There is no error assigned, which enables the Court to revise the last decree, confirming the master’sreport, and perpetuating the injunction, and no exceptions were taken to the report. The only error complained of, is in the first decree, which did not dispose of the injunction. [3 Porter, 475 ]</p>

Writ of error to the Circuit Court of Dallas. The defendant in error declared against the plaintiff in in-debitatus assumpsit. The cause was tried upon the pleas of non-assumpsit, payment, set off, failure of consideration, &c.; a verdict was returned for the plaintiff for the sum of five hundred and fifty-five 78-100 dollars; and judgment was rendered accordingly. On the trial, the defendant excepted to the ruling of the Court.

<p>Writ of error to the County Court of Benton.</p> <p>Debt by Matlock against the Mallorys, on a writing obligatory, made by them, payable to him, on the 15th February, 1842, for $3,315. The declaration is in the usual form, except that it contains no proferí of the writing obligatory. The defendants demurred, and their demurrer being overruled, they then pleaded as to $3,289 of the debt, that they paid the same on the 2d day of March, 1842, to one Hammond, who was the duly authorized agent of the plaintiff, to receive the sum so paid. The plaintiff first demurred to the plea, and the Court sustained the demurrer; afterwards he asked leave to withdraw his demurrer and rejoin to the plea, which the Court allowed him to do. Upon which the defendants excepted. The plaintiff then asked for a judgment, as to that part of his declaration not answered by the plea, and took issue upon it. The defendants refused to have any thing to do with the cause after the demurrer was sustained to their plea, except to make objections to any further proceedings in the cause.</p> <p>The judgment entry recites the proceedings before stated with respect to the pleadings, and that the plaintiff asked a jury to try the issue joined, and also to assess the debt and damages in the plaintiff’s declaration mentioned, not pleaded to. Whereupon came a jury, &c. who, being sworn to try the issue joined, and assess the debt and damages not controverted in that behalf, returned a verdict, finding the issue for the plaintiff and found the debt to be $3,300, and assessed the damages at $633 90, for which sums judgment was rendered.</p> <p>At the first trial term the defendants filed certain interrogatories to be answered by the plaintiff, which it is unnecessary to state with more detail, as the opinion of the Court turns upon the invalidity of the exception. The Court refused to makes an order requiring the plaintiff to answer, upon which the defendants excepted. The trial was had at a subsequent term.</p> <p>The defendants below now assign as error—</p> <p>1. The refusal of the order for the plaintiff’ to answer the interrogatories filed.</p> <p>2. That the Court should have entered a judgment, that the cause was discontinued after the demurrer to the plea.</p> <p>3. In overruling the demurrer to the declaration.</p> <p>4. In sustaining the demurrer to the plea.</p> <p>5. In rendering the judgment shown in the record.</p> <p>6. In not giving judgment for the defendants upon the whole -record.</p> <p>made the following points:</p> <p>1. The matter of the interrogatories was proper, and the order for their answer should have been made. [Goodwin v. Wood, 5 Ala. Rep. 152 ; Id. 731; Young v. McLemore, 3 Id. 295.]</p> <p>2. By demurring to the plea, the plaintiff1 discontinued his action, as no judgment was taken for the part not answered by the plea. [Deshler v. Hodges, 3 Ala. Rep. 509; Steph. on Plead. 216; Comyn’s Digest, Pleader E. I, F. 4; 1 Saund. 28, note 3; Vincent v. Bester, 1 Lord. Raym. 716; Tippet v. May, 1 B. & P, 411; Market v. Johnson, 1 Salk. 180 ]</p> <p>3. After the discontinuance the cause could not properly be reinstated. [Leavitt v. Dawson, 4 Ala. Rep. 335; Givens v. Robbins, 5 lb. 676 ; 6 Comyn’s Dig. 271, Ev. 4; Steph. on P. 216.]</p> <p>4. The plea is good, and upon the judgment upon the demurrer, the Court had no power to allow it to be withdrawn. [Clay’s Dig. 334, § 119.]</p> <p>5. As the judgment entry is, there is no judgment by nil dicit, for the part unanswered by the plea.</p>

Assumpsit by the plaintiff, against the defendant in error, for money paid, laid out, and expended, Upon the trial, it appeared, that the plaintiff paid to the Planters and Merchants’ Bank two notes of $12,180 62, each, signed by Charles Labuzan and Benjamin Stanton, Jr., as principals, and Charles Barny & Co., and the plaintiff, as sureties.

<p>1. A deed conveying a plantation, &c., to trustees, for the benefit of certain crcdi. tors of the grantor, is not void merely because it provides that the trustees may, if they think proper, permit the grantor to reside upon the plantation, and have the management thereof, under the supervision of the trustees, until the growing crop is sold.</p> <p>2. A deed conveyed in trust all the estate of a debtor, consisting of “lands, slaves, carriage, wagon, cart, mules, horses, hogs, cattle, all plantation and farming utensils, with the crop of corn, cotton and grain, growing on the plantation and provided that the property thus conveyed should not be sold, until the estate of the sureties and indorsers intended to be secured, were levied on by executions on judgments obtained against them : Held, that the deed was not obnoxious to the objection of being made to “ delay, hinder or defraud creditors.”</p>

Writ of error to the Circuit Court of Autauga. Debt on a sealed instrument, by Hill and Lockett, against the Rail Road Company. The declaration complains of the defendant, that it render to the plaintiffs the sum of ten thousand dollars, which it owes to, and unjustly detains from them.

Assumpsit by the defendant, against the plaintiffs in error. The plaintiff declared on a promissory note for three hundred dollars.

Writ of error to the Circuit Court of Greene. This was an action of debt on a bill single, by which the defendants in error on the 7th February, 1S36, promised to pay to the plaintiff six hundred and seventeen 50-100 dollars, on the first of January thereafter. The cause was tried on the pleas of want of consideration, and failure of consideration. The plaintiff excepted to the ruling of the Court; and from the bill of exceptions the case may be thus stated.

Writ of error to the Circuit Court of Talladega. Teespass to try titles. The suit was commenced by John Lawson against Robert Lawson, but Orear was admitted to defend as the landlord of the defendant. At the trial the plaintiff gave in evidence a regular chain of title from the United States to himself; the last link in this chain was a deed from one James Lawson.

<p>X. Objections of form, cannot be made to the declaration, on error, after verdict.</p> <p>2. An allegation in the declaration, that the note was delivered to the defendant, is a clerical misprision, amended by other parts of the record, and therefore not available on error.</p> <p>3. When an attachment is sued out on a debt not due, the cause is continued by operation of iaw, until the maturity of the debt, without any formal continuance being entered.</p> <p>4. The submission of a cause to a jury, after a judgment by default, is a mere irregularity, not available on error.</p>

Writ of error to the Circuit Court of Sumter. This was an action of assumpsit at the suit of the plaintiff in error on a promissory note of the following tenor, viz: “ One day after date, I promise to pay Hiram Jackson, administrator of the estate of Randal Jackson, deceased, or bearer, the sum of four hundred and twenty-seven dollars and ten cents, for value received. This the 9th April, 1841. Peter Jackson. Drura Jackson.” Drura Jackson pleaded, 1. Non-assumpsit. 2.

Writ of error to the County Court of Marengo. On a final settlement of the estate of Jesse Coleman, deceased, in said Court, at the instance of William J. Alston, executor, an item of #1,500 in his account, was excepted to by the distributees of the estate.

<p>1. Under the pleas of failure, and want of consideration, the defendant may prove, that a note sued upon, though absolute in its terms, was given as an indemnity to the plaintiff, against loss as surety, as it is merely proving, upon what consideration the note was given.</p> <p>2. Proof of the admissions of the plaintiff, that he ¡had paid nothing on account of his suretyship, and did not know whether any thing was due or not, upon the note on which he was surety, does not prove that he cannot be damnified by his suretyship, and that therefore, the indemnity is functus officii.</p> <p>3. Proof relevant to the issue cannot be excluded by the Court.</p>

Writ of error to the Circuit Court of Talladega. The defendant in error having recovered a judgment against Wm. A. Revis and Elisha B. Stedman, made the affidavit required by statute, and,caused a garnishment to be issued and served on sundry persons supposed to be debtors of Stedman, among whom were John S. Smith.

Writ of error to the Circuit Court of Talladega. Detinue by Pharr, and Beck, v. Bell, to recover certain slaves. The declaration describes most of the slaves by their names and ages, but in some instances, when describing children, omits their names. As thus, Harriet, a woman about twenty-four years old, and her four children, viz: a boy about eight years old, a boy about six years old, and two other younger children of the said Harriet.

<p>Error to the Circuit Court of Benton.</p> <p>The action is brought by the plaintiff in error, on two promissory notes for $1,500, as administrator of Robert Porter. The declaration avers, that the notes sued on, were executed by the defendants, payable to the administrator of the estate of Robert Porter, deceased. That at the time of the execution of the notes, the plaintiff, and one Christopher C. Porter, were administrators of the estate of Robert Porter, and the promissory notes delivered to them by the makers. That after-wards, and before the commencement of this suit, Christopher C. Porter resigned the administration, of the estate, and that no one has been appointed in his stead, &c.</p> <p>The defendants demurred to the declaration, and the Court overruled the demurrer. They then pleaded non-assumpsit, and u ne unques administrator.” To the last plea the plaintiff demurred, and the Court overruled the demurrer.</p> <p>At the trial, as appears from a bill of exceptions, the plaintiff proved his appointment, the making and delivering of the notes, and the resignation of C. C. Porter.</p> <p>The plaintiff proved that the notes were executed for the purchase money of land, of which plaintiff’s intestate died seized, which land had been sold pursuant to an order of the Orphans’ Court of Benton county, as part of the estate of plaintiff’s intestate. That no bond for titles, or conveyance ■of the land, for the purchase of which the notes were given, was made, by the commissioners appointed to sell the same, at the time of the sale, except the notes.</p> <p>Plaintiff also introduced the proceedings of the Orphans’ Court, for the sale of the land, including the petition, order of sale, the report of the commissioners appointed to soil the land, that they had made sale thereof, that they had sold the land to the defendants, and returned their notes, also the order of the Court, made upon the return, as follows: “The commissioners appointed to sell the real estate of Robert Porter, deceased, having submitted their report in writing, it is ordered, that the same be recorded. It is further ordered, that John Worthington, administrator of the estate of Robert Porter, deceased, entered into bond with security, in the sum of seven thousand dollars, before receiving said notes,” &c. Also a further order, that he had given bond, and that the notes be delivered to him. He also proved that the purchaser, one of the defendants, went into possession of the land, and remained in possession two years.</p> <p>This being all the testimony, the Court instructed the jury, that they must find for the defendant, to which the plaintiff excepted.</p> <p>The assignments of error, bring to view the judgment of the Court, overruling the demurrer to the plea, and the matters set out in the bill of exceptions.</p> <p>cited Rhode’s adm’r. v. Storr, at the present term; also Lamkin v. Reese, and Perkins’ exr’s. v. Winter’s adm’r., at the present term; also 5 Porter, 169 ; 4 S. & P. 178, and 6 Ala. Rep. 411.</p>

Writ of error to the Circuit Court of Butler. This was an action of assumpsit at the suit of the defendant, against the plaintiff in error.

Writ of error to the Court of Chancery for the first district, southern division. Bill to foreclose, by the Bank against E. 0. McGowan, Champ Taylor and Cynthia, his wife.

<p>1, A variance between the indorsement on the writ, and the declaration, cannot be pleaded in abatement; but if the plaintiff should declare upon a cause of action, entirely different from the indorsement upon the writ, the Court would on motion, refuse to permit the declaration to be filed.</p>

Writ or error to the Circuit Court of Tuscaloosa. In this case, the defendant in error stated to the Court below, that on a judgment therein rendered in its favor, against Alfred Vaughan, a writ of fieri facias (particularly describing its amount,) was issued on the 25th October, 1836, which was placed in the hands of James M. Bondurant, then sheriff of Marengo, who returned it as follows: “ Rec’d, 3d March, 1837, came to hand too late to make the moneythat the plaintiffs in…

Writ of error to the Circuit 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, to one Waller, on the ist January, 1842, for the hire of two slaves, which were to be returned, clothed as slaves usually are. The breach assigned is, the nonpayment of the-money, and the not returning the slaves clothed in the usual manner.

<p>Motion for a mandamus to the Circuit Court of Barbour.</p> <p>MeREbith,B. Owens commenced a suit by attachment, against Thomas Simpson, returnable to Barbour Circuit Court. The defendants, who were non-residents, appeared and pleaded in abatement, the want of a sufficient affidavit. The plaintiff alledged, that an affidavit had been made, “that said defendants had not sufficient property, within the State or territory, of their residence, to satisfy the debt, within the knowledge of affiant,”,and the same had been lost or mislaid, and moved for leave to substitute one in lieu thereof.</p> <p>In support of the motion, the plaintiff read the ex parte affidavits of Isaac Johnson and Joshua A. Owens, parties to the attachment bond, as it appeared. To rebut the testimony, the defendants produced the attorney, who made the affidavit, upon which the attachment issued, and the justice of the peace who issued the attachment, both of whom swore, they did not remember the making of the additional affidavit, supposed to be lost, but said, they would not swear it had not been made. The justice had much business, and the attorney was sick, when the attachment was issued. The justice also swore, it was his habit to indorse the affidavit, upon the bond or writ of attachment, or, when written upon a separate piece of paper, to annex it with a wafer. The papers showed no mark of annexation. This being all the evidence, the Court permitted the affidavit to be substituted, to which the defendants excepted.</p> <p>cited 7th Porter, 45.</p>

Writ of error to the Circuit Court of Benton. This was an action on the case, at the suit of the plaintiff in error, in which the defendant is charged with having spoken of, and concerning him, Certain slanderous and defamatory words. The cause was tried oh issues joined, upon the pleas of not guilty, and the statute of limitations. On the trial, the plaintiff excepted to the ruling of the Court.

Writ of error to the Circuit Court of Blount. Claim interposed, under the statute, by John W. and Charles Carter, to a slave levied on by virtue of a f. fa., at the suit of Mannings & Jackson against Thomas M. Carter. At the trial the claimants offered to read a deed of gift, executed to them in July, 1820, by one John Ward, for slaves, one being the mother of that levied upon.

<p>Error to the Circuit Court of Benton.</p> <p>This was a trial of right of property, the plaintiff in error being plaintiff in execution, and the defendant claimant.</p> <p>Upon the trial of the cause, the plaintiff introduced a. deposition conducing to show, that the claimant had once been possessed of the two slaves levied on, and that upon the marriage of his daughter, with the defendant in execution, they had been sent home with the new married couple. That a year or two after the marriage, complainant had made a deed, conveying to a third person, the slaves for the use of the daughter. This testimony, in relation to the contents of the deed, the Court excluded, because it was not shown that notice had been given to the claimant, to produce the deed, when the deposition was taken; although it was admitted, he had received one day’s notice to produce it on the trial, and that it was in his possession. To the exclusion of the testimony the plaintiff excepted.</p> <p>The claimant also read the deposition of his daughter, the wife of the defendant, though objected to by the plaintiff, and to which/he also excepted. All of which he now assigns for error.</p> <p>cited 3 Wend. 296; 7 Cowen, 739; 6 Greenl. Ev. 200-6.</p> <p>There was no proof that the deed was ever delivered by the claimant, so as to be operative against him. As to the sufficiency of the notice to produce the deed, they contended, it was in the discretion of the primary. Court.</p> <p>That the wife of the defendant was a competent witness, they cited 1 S. & P. 449;. 5 Id. 426; 2 Porter, 389; 4 Id. 63; 5 Ala. Rep. 771.</p>

<p>1. A decree was rendered for the sale of the real estate of an intestate, upon a petition by the administratrix, that the same could not be fairly, equally and beneficially divided among the heirs; it was objected in a collateral suit that it did not appear from the record, that the guardian of the infant children of the intestate answered the petition ; that the testimony was taken by the petitioner without notice to the heirs; that a deed was directed to bo made to the purchaser under the decree, although the purchase money was not paid ; that the infant heirs of the intestate had no notice of the proceedings m the Orphans’ Court; and that the publication was made without an order of Court, although the fact of non-residence was not verified by the oath of-the administratrix; Held, that although these objections might be sustained by the record, they do not show a want of jurisdiction in the Orphans’ Court, or establish the nullity of its decree, but are mere irregularities, for which a revising Court might reverse, without affecting the purchaser’s title.</p> <p>2. The Orphans’ Court may take jurisdiction and order the sale of the real estate of a deceased person, although the decedent had executed a mortgage thereon, which was undischarged ; and the purchaser at such sale, will become invested with the title of the heirs of the mortgagor.</p> <p>3. Where lands are sold by the quarter section, according, to the survey under the authority of the Federal Government, at so much an acre, and bonds are given for the payment of the purchase money, the purchaser cannot claim a deduction for a deficiency in the quantity of the land — there being no fraudulent concealment or misrepresentation, by the vendor, or any one representing him, or authorized to act in the matter.</p> <p>4. Where lands are sold by commissioners, under an order of the Orphans’ Court, ' the sale confirmed, the commissioners ordered to make a “ conveyance by ( deed” to the purchaser, and bonds for the payment of the purchase money executed by the latter, the rule of caveat emptor applies, and .the purchaser can claim no indemnity, for any incumbrance that may rest on the title.</p> <p>5. Commissioners appointed by the Orphans’ Court to sell land, and ordered to execute a deed to the purchaser, are in no default if they do not look him up, and tender a conveyance. It is enough if they deliver to the purchaser a deed on demand. Semble: If the commissioners refused to execute the order of the Orphans’ Court, that Court might cause a conveyance to'he made, or, if its powers are inadequate, Chancery could lend its aid.</p>

Writ of error to the Circuit Court of Franklin. Claim interposed under the statute, by Tarver, to certain slaves, levied on as the property of John M. Lewis, at the suit of Roife.

<p>Error to the Circuit Court of Clarke.</p> <p>Assumpsiít by the Bank, against the plaintiff in error, for money paid, laid out, and expended, &c. — and judgment for the plaintiff. Pleas, non-assumpsit, and the statute of limitations.</p> <p>Upon the trial, a bill of exceptions was taken, from which it appears, that the plaintiff, with other testimony, which it offered to maintain the action, proved, and read to the jury a check, as follows:</p> <p>Mobile, February 16, 1838.</p> <p>Branch of the Bank of the State of Alabama, at Mobile, pay to my note, or bearer, seventeen hundred and thirty dollars and thirty-eight cents. — ($1,738 3S.)</p> <p>Neal Smith.</p> <p>On the face of the check it was certified to be good, by the proper officer of the Bank.</p> <p>The defendant’s counsel moved the Court, to charge the jury, that the check was presumptive proof, that the defendant had on deposit in Bank, the amount for which the check was drawn, and that under the plea of the statute of limitations, they should find for the defendant, if they believed three years had elapsed, between the time the action had accrued and the commencement of the suit.</p> <p>The Court refused these charges, and the defendant excepted, and now assigns them as error.</p>

Writ of error to the Circuit Court of Mobile. This was an action of ejectment at the suit of the defendants in error against the plaintiffs, for the recovery of a “parcel of land” situate in the city of Mobile; the form and location of which are shown by the following diagram: [A. represents the iron-bound stake, and JB. the land in controversy — -a tract in a triangular form, made above high water by alluvial deposits, or reclamation by art. The plaintiffs claim under…

Writ of error to the Court of Chancery for the-district of the southern division.

<p>1. Where an insolvent estate was in process of being audited, at the time of the passage of the act of 1843, for the settlement of estates in the Orphans’ Court, the law previously existing will govern and control it; but where the initiatory steps only have been taken, the proceeding so far as it has progressed, will be governed by the former law, but so far as subsequent action is had, it must conform to the act of 1843.</p> <p>2. The provision in the act of 1843, authorizing a writ of error, by, or against a single creditor, applies only before the final settlement of the estate; after final settlement, a writ of error must be prosecuted in the name of, or against all, the creditors.</p> <p>3. Six persons drew a bill of exchange, upon which the money was received by them, and at the same time executed an instrument, in which they recited, that the bill was drawn for the mutual benefit of all the parties to it, and agreeing, . that each would bear an equal proportion in its payment, each paying his sepa, rate portion; — one having been compelled to pay all, and three of the parties being insolvent: Held, that each was surety for the others, for all above his own interest in the bill, and co-sureties, for all above the sum they were individually liable for; that therefore in this proceeding the one, who had paid the entire debt, could recover of one of the solvent parties, one sixth part, being the part for which he was individually responsible, and one-third part of the portion of the three insolvent parties, making in all, one-third part of the entire amount.</p>

<p>1. Where a Court of law in which a party has instituted an action, upon the allegation that a suit pending in equity is for the same identical cause, makes an order that he elect, whether he will proceed at law, or in Chancery ; such order will not be conclusive of the case in Chancery, but the Chancellor will be free to exercise his own judgment upon the motion to elect: and this, although a forced election shall have been made and entered of record at law.</p> <p>2. The bill alledged that several conveyances were made by the defendants to a judgment at law, of all their visible property, that several of these conveyances were fraudulent in their inception, that others were either conceived in fraud, or held up with the view of delaying or defeating the creditors of the grantor : Held, that these allegations were sufficient to give to a Court of equity jurisdiction of the cause.</p> <p>3. Where executions are levied on property, which the defendant in execution had sold and mortgaged, the plaintiff may notwithstanding go into equity in order to vacate the conveyances in toio ; the only effect of the levies on the remedy in Chancery, would be, upon the interposition of a claim of property, to compel the plaintiff to elect (if the matters in controversy were identical,) whether the suit should be prosecuted at law, or in equity.</p> <p>4. Although it may be necessary to entitle a judgment creditor to come into equity to subject the equitable estate of his debtor, that he should have pursued his legal remedies to every available extent, without being able to obtain satisfaction; yet he may file his,bill, upon the assumption that the defendants in execution have made several gratuitous or voluntary transfers of property, with the intent to delay, hinder or defraud creditors: or where, admitting the conveyances were made to secure debts which have since been paid, they are now held up to enable the grantor to defraud his creditors. '</p> <p>5. In a bill to set aside and avoid conveyances of land, slaves, &c., upon an allega, tion of fraud, it appeared that the grantors were in debt, and believed to be insolvent at the time the deeds bear date ; each of the grantors conveyed his entire visible estate ; the one to his father-in-law, the other to his brother-in-law; the one on the payment of the purchase money in ten annual instalments, the other on payments to be made at different periods, the last of which was twelve years after the sale ; in the one case the use of the lands and the employment of the slaves, would enable the purchaser to pay the stipulated price in six or eight years, in the other in eight or ten years. The father-in-law said his object in making the purchase was to save the property, and he thought he could make it pay for itself on the credit obtained. After the sale, the son-in-law acted professedly as the overseer of his vendee. Since the sale by the brother-in-law he has exercised a control over blacksmiths and shop, over wagons and teams employed in hauling wood from the plantation for sale, al! of which are embraced by his conveyance; but the vendee has employed overseers on the plantation. In respect to both it may be said, that the vendees have shipped the cotton crops growed on the respective plantations to market. The witnesses know of no change of property from either of the vendors ; they each live where they did at the time of their sales, have their carriages, bouse servants, &c. — and live in the neighborhood of each other; Held, that both conveyances were made “to delay, hinder or defraud” the creditors of the respective vendors and must be set aside.</p> <p>6. Joint judgments were recovered by the complainant against the defendants, (?. W., J. fí. W., and E. L., all of whom it was alledged in the bill, united in a fraudulent purpose to defeat the collection of these judgments — the two former made absolute sales, professing to pass the possession and property to their respective vendees — the latter executed mortgages. All these transactions are charged to have been fraudulent, not only on the part of the defendants in the judgment, but of their vendees and mortgagees : Held, that as the defendants in the judgment had a common interest in its satisfaction, and are charged with-a joint participation in a design to defraud, which led to the supposed fraudulent tranfers, a bill which makes them all parties, and seeks to set aside their respective conveyances, is not multifarious.</p> <p>7. An application to continue-a cause in equity, addresses itself to the discretion of the Chancellor, and however unwisely exercised, cannot be revised in. an appellate Court.</p> <p>8. When at the time a commission to. examine witnesses issued, but one of the defendants had answered, and his counsel were duly notified of the time and place when the commission would be executed ; the other defendants were in default, and a decree pro confesso had been rendered against them : Held, that the de. fendants who were in default cannot insist upon the want of notice, but it was competent for the plaintiff, under the statute, to make out his case by testimony taken ex parte.</p> <p>9. If a defendant who is in default afterwards answers, so that a decree pro con-fesso is set aside, depositions taken without notice to him while the decree was operative, will not become inadmissible evidence. The correct practice in such caséis, upon the decree being set aside, for the defendant to move upon a proper showing for leave to take the depositions of the same witnesses at his own instance, and a commission could issue on such terms as would protect the complainant.</p>

Writ of error to tiro Circuit Court of Dallas. Assumpsit by Morgan and wife against Sprague and wife, on the common counts. At' the trial, on the general issue, the plaintiffs proved certain services, as a teacher, rendered by the wife of the plaintiff whilst sole, to the defendants after their.iiitermarriage, the contract for which was made by the wife of the defendant whilst sole.

<p>X. When a note made upon a gaming consideration, is transferred in payment of a debt, an action may be maintained upon the consideration of the original debt, •without proof of any diligence to recover the amount of the note from the maker.</p> <p>2. When the note of an insolvent man is passed off in payment of a debt, and the insolvency is artfully concealed, by any stratagem, or unfair practice, an action may be maintained upon the original consideration.</p> <p>3. Although a witness in answering an interrogatory, under the law authorizing parties to be examined, may state any thing which relates to the immediate subject, upon which he is called on to answer, and his response must be taken entire, or not at all, yet his answer to a distinct matter from that inquired of, is not evidence for him. ‘</p>