Volume 7 — Porter's Alabama Reports (1834–1839)

<p>1. A verification, at the foot of a plea in abatement, stating it to have been sworn to and subscribed in open court, certified by the clerk, is a sufficient compliance with the statute which requires such pléas to be accompanied with an affidavit.</p> <p>2. A plea in abatement of a writ, alleging the residence of defendant in another county, need not allege the ground of abatement to have been continued up to the time of pleading; and a change of residence of defendant, between the time of suit brought and the time! of interposing the defence, cannot deprive him of his privilege under the statute authorising the plea.</p> <p>3. The words “resident citizen,” in such a plea, are as forcible to indicate a fixed home, as the words “permanent residence,” which are the words employed in the statute, and sufficiently accord with the intent and meaning of the statute.</p> <p>4. A demurrer to a plea in abatement admits the plea to be on file, and can only contest its legal sufficiency; and semble does not reach the indorsement on the plea required by the twelfth rule, regulating the practice in the Circuit and County courts.</p> <p>5. Though an objection might, it seems, be well taken to such plea, if it affirmatively appears not to have been filed within the time prescribed by statute.</p> <p>0. The certificate of a judicial officer or clerk of a court, of the acknowledgment or proof of deeds, need not be under seal; and the hand-writing of the judge or clerk taking the acknowledgment, may be proved in open court by any witness acquainted with it.</p> <p>7. To support a plea in abatement which alleges that defendant was at the time of service of the writ, a resident citizen and freeholder in another county, a conveyance of a lot of land to defendant, without suppletory proof, is not sufficient: ¡Sem-ble, that proof that the grantor in the conveyance had title, or that defendant was in actual occupancy of the land, would sustain the defence.</p>

This was a petition filed by the defendant in error, in the County court of Jackson county, praying that dower be assigned her in the lands and personal property of her husband. The petition alleged the marriage and the death of the husband, in April, eighteen hundred and thirty-three-. That he made a will; in which she was. not. at all provided for, in either real or personal property.

In this case the plaintiff in error recovered a judgment before a magistrate in the county aforesaid on a note under seal, on which judgment there was an appeal to the County court.

Peter W. Taylor, at September term, eighteen hundred and thirty-six, of the court aforesaid, declared against Copewood, in trover, for two slaves. At the March term of the said court, in eighteen hundred and thirty-seven, the death of plaintiff in the suit was suggested, and on motion, it was ordered by the court, that the said suit should stand revived in the name of Samuel Henderson, administrator of the goods and chattels, rights and óredits of said decedent.

William F. Hansford,, a justice of the peace of Autau-ga county, issued a notice, addressed to Henry B. Judge, a constable of that county, and his securities in office, reciting, that the plaintiffs had theretofore recovered a judgment against John A. Whetstone, for the sum of twenty-eight dollars and fifty cents debt, and one dollar thirty-one cents costs, before David Golightly, a justice of the peace for the same county: — that execution was issued thereon, and placed in…

■Error to the Circuit court of Morgan county. The plaintiff in error brought an action of covenant 'against the defendant, in the Circuit court of Morgan, upon an agreement under seal: which agreement, after reciting that the plaintiff, as the attorney in fact of 'George Gamble, had made to Charles W. Peters, a deed •to a patent machine (called the patent revolving washing machine,) for the Territory of Arkansas, bearing date on the fifteenth of March, eighteen hundred and…

This was a petition to the Circuit court, by the plaintiff in error: it showed that at January term of the County court, held in and for said county, in the year One thousand eight hundred and twenty-six, before the honorable Joseph A: Hall, judge of said court, an appeal from a. justice’s court, wherein the sum claimed did not exceed twenty dollars, came to be tried, in which the petitioner was plaintiff, and one Jonathan Kennedy defendant, in which said- judge dismissed…

This yvas an action of trespass to try titles, instituted by Orms against Cundiff, in the Circuit court of Jackson county.

Assumpsit on note. The plaintiff below, declared against defendant, for that on the tenth day of February previous, in the county aforesaid, said defendant made his promissory note in writing, bearing date the day and year last aforesaid, and thereby then and there promised to pay, one day after the date of said promissory note, to the order of said plaintiff, a certain sum mentioned, for that amount due him by Richard Tarrant, which amount said defendant then and there, and…

This was an action of trespass, assault and battery, —commenced in the Circuit court- of Benton county, by Morrison and wife, against Wright. The defendant pleaded t! the general issue, with permission to give special matter in evidence and upon the issue thus raised, a verdict was rendered for the defendant.

This was an action of trespass on the case, brought in the Circuit court of Dallas county. The action was instituted by McMillan’s executor, to recover from the plaintiff in error, the deficiency in price at the re-sale of a tract of land, which had been previously sold to the plaintiff in error. The declaration, in addition to the common counts,, contained four special counts.

The defendants in error caused to be issued a writ of capias ad respondendum against the plaintiff, (lor the recovery of the amount' due on a promissory note.) returnable to the County court of Wilcox.

This was an action of assumpsit by Hutchins, as the endorsee of a promissory note, against the endorser.

Indictment for retailing spirituous liquors without license.

Trespass for killing a hull. In this case, the plaintiff, at the Fall term of the court, eighteen hundred and thirty-four, declared against the defendant; for that whereas, therefore, to wit, on a day stated in the declaration, in said county, the defendant shot and killed a certain bull, the property of plaintiff, then and there found, and being of great value, to wit, of the value of one hundred dollars, and other wrongs then and there, did contrary to the peace and…

’ Debt on foreign judgment. The declaration set forth, that at the November session, eighteen hundred and twenty-eight, of the Court of pleas and epaarter sessions for Iredell county, No'rth Carolina, the plaintiffs below recovered.a judgment for four hundred and one dollars, and eighty cents, debt, . against defendant, — also, one hundred and twenty-three dollars and twelve and a half cents, for damages and costs. To the declaration, defendants plead— 1. Nul tiel record. 2.

This was an action of covenant, prosecuted by the plaintiff in error.

Clair county. Bill of complaint, with a prayer for relief, injunction, &c. On the twenty-seventh day of March, eighteen hundred and thirty-five, William Smithson, the complainant, filed Ms bill in the Circuit court of said county, exercising chancery jurisdiction, which stated, that theretofore, perhaps ten years ago, one William Mason, then a citizen of said county, recovered two judgments against complainant, in the Circuit court of said county, both judgments amounting to…

Scire facias on bond forfeited. The bond acknowledged an indebtedness to the Governor of the State of Alabama, in a certain sum, and was conditioned for the appearance of the principal, at Spring term, eighteen hundred and thirty-six, of the Circuit court of Morgan county, to answer before the Circuit court, on a charge of murder.

On a writ of error to the Circuit court of De Kalb county. 'The writ of error was taken in this case, upon the judgment of the Circuit court, affirming that of the County court, upon an award, made by arbitrators.— The record contained transcripts showing, that previous to the award, there were pending in the County court, three several cases, entitled William 'R. Nicholson, David Gage, and Nelson Harlen, against James Lamar, et ux, for malicious prosecution.

This was an indictment for gaming, tried in Tuska-loosa Circuit court. The defendant plead, that one,, of the grand jurors, who concurred in the finding of said indictment, and without whose concurrence, said indictment was not found by the requisite number of grand jurors, to wit, one J M was not at the time of the finding of said indictment, a true hill, — a freeholder or householder in said county of Tuskaloosa.

Debt on administration bond. In this case, a question arose, upon one of the grounds stated in the bill of exceptions, to wit: That the court below erred, in rendering judgment without a return of the sheriff, that the writ had been executed, and without proof that the plaintiff in error had acknowledged the service of the writ.

Assumpsit on a promissory note by endorsee against an endorser!

On a writ of error, awarded to the Circuit court of Clarke county.. Held: that the English statute does not allow a bill of exceptions, in a criminal case— .Sir H. Vane’s case, Eel. 15; Ld. Grey’s case, 1 Vernon, 175; Buffer’s N. P. 316; Willis, 538; Rex vs Barkshead, T. Raymond, 486; Chit.

Case against a bailee for non-delivery of a letter containing bank notes.

Bill to abate a nuisance. In this case, the bill stated that complainant lived on Adams’ creek, a tributary of Big Sandy creek, in said comity; and that Benjamin F. Randolph had purchased of the United States, a tract of land lying on said creek, adjoining the lands of complainant, and had intimated his intention of building a saw-mill thereon, which complainant was apprehensive would destroy the health of the neighborhood, and put in imminent danger the lives of his family.

This case is identical with the case of Rosser vs Randolph, immediately preceding. From the decree of the chancellor below, a writ of error was taken by defendant to this court. The plaintiff in error, assigned as error— That the court below decreed that the plaintiff in error should pay the costs, — for which he prayed that the decree, in this particular, might be reversed, <fcc.

Bill for injunction and relief. The bill stated, that Hives and Yaughn made to complainant a promissory note for one thousand dollars, for a valuable consideration, payable twelve months after date, and that after-wards, while on a visit to Montgomery, complainant fell in company with Taylor and Blevins, who invited complainant to play at cards — prevailed upon him to indulge with too great freedom in inebriating liquors, which impaired the soundness of his judgment, and…

<p>1. It is too late to raise an objection, that certain counts were hot properly inserted in a declaration, after pleading to issue.</p> <p>2. Where evidence is given, applicable to one count of a declaration, though not applicable to another, a refusal to instruct the jury, as in case of non-suit, is no error.</p> <p>3. Where the facts, proved by the plaintiff on the trial of a case, are admitted, and the correctness of the charge of the court, the facts being admitted, is not controverted, — the defendant cannot be allowed afterwards to allege, that the charge of the court determined the facts, and by that means withheld them from the consideration of the jury.</p>

Indictment, for playing at cards, under the statute. The indictment charged, that defendant, on a certain day, in the county aforesaid, “ did then and there play at cards, at a store-house for retailing spirituous liquors, to wit, the store-house of Wiley Coggins, 'there situate, contrary to the statute in such cases made and provided, and against the peace and dignity,” &c. Defendant demurred, and for cause of demurrer, said that— 1.

Detinue for the recovery of a slave. Plaintiff declared against defendant, of a plea that he render to him a certain negro slave named Lawson, the property of plaintiff, and which defendant unjustly detained,&c. — to which defendant plead — 1. Non detinet; 2. Non detinet infra sex annos; 3. Actio non accrevit infra sex annos. Upon the issues, thus framed, there was a verdict for defendant.

This was an appeal from the action of the County court, on the settlement of the accounts of an executor. The opinion of the court in the case, sufficiently exhibits the matter at issue between the parties.

Bill to restrain proceedings at law. An injunction was ordered; which, on the coming in of the answer, was dissolved. The chancellor dissolved the injunction, on the ground that the answer of David Peirce denied the allegations made in the bill, so far as to entitle him to proceed in his action at law; and because it was further shewn, that complainants had taken no steps to procure testimony, since the previous term of the court.

Trover. Plaintiff below declared against defendant Glaze, and one West, in trover, for a gold watch; to which defendants plead separately, the general issue. The jury found defendant Glaze, guilty of the trover and conversion; but found favorably in reference to West. The bill of exceptions stated, that on tlie trial, the right to the watch, in controversy, was shewn to have been in the plaintiff some considerable time before action brought.

Trespass quare clausum, against B. and J. Blackburn. To the declaration of plaintiffs, the defendants plead not guilty, and license given by plaintiffs. Verdict and judgment in favor of one defendant, and against another.

In this case, a motion was made to admit John L. Dorsey, as an attorney and counsellor of the court, and to •dispense with administering… Held: at most, to be mere subordinate officers of their respective courts.” Here is an express decision in favor of the pos.tion assumed in my opening remarks, that the office of an attorney was not a public office, neither in this or in any other country, and accordingly. we find the learned Judge discarding the requisitions imposed by…

This was an action of assumpsit, tried before P. Martin, J., upon an instrument in writing, of the following-tenor :• “ I llave sold to John Vi. Foster, seven hundred bushels of cora, whichlbiud myself In the sum of seven hundred dollars,tobe delivered in raid Foster’s boat, in the month of February, or sooner if said Foster wishes it.— Tuskaloosa, January 0, 1C33. II.

Trespass to try title, tried before Judge Chapman. The plaintiff brought his action of trespass to try titles to a portion of fractional section twenty-six, township twenty-one, range eleven, west, lying north and west of the Warrior river. The plaintiff proved, that he had for many years been in possession of that part of said fraction, lying north and west of said river, claiming title to the same.

Malicious prosecution — tried before Lane, J. Plea, not guilty. The bill of exceptions disclosed the following facts. That some time within the year, the defendant applied to a justice of the peace, and procured to be issued a warrant against the plaintiff, charging him with a felony ; upon which warrant the plaintiff was arrested, and tried before a justice of the peace for commitment, when the plaintiff was acquitted, and finally discharged from the prosecution.

Assumpsit for goods sold and delivered. Pleas, non as-sumpsit and Ihe stalnte of limitations. The verdict was in the following words: “ The jury find the issue for the plaintiff, and assess his d images at,” &c. ' Judgment accordingly. The plaintiff in error, assigned the following errors : 1. The judgment was for less than fifty dollars ; and there was no affidavit of the plaintiff below, on which to authorise judgment on the verdk t. 2.

Assumpsit on a bill of exchange, tried before Chapman, J. In this case, the writ was sued out against three defendants, as late co-partners, and returned by the sheriff, “ executed.” In the writ and declaration, the name of one of the defendants was set out as “S. H. Page.” The recital of judgment was, that on the trial, the parties came, by their attorneys, and defendants saying nettling, judgment was rendered for plaintiff.

Assumpsit on a promissory note, tried before Judge Martin. Plaintiffs below declared in assumpsit on a promissory note, lo whffh defendant plead (in bar) that he was a “permanent Atinen and freeholder of Coosa county,” &c. Plaintiffs demurred to the plea, and the demurrer being sustained, judgment was rendered for the plaintiffs. The pica, it will he perceived, is contained at length in the opinion of the cxrrL

' The writ of error, in this tunc, was brought to reverse an order dismissing the suit of plaintiff below, for failing to comply with a previous order of court, requring additional security for costs. Held: vs. “ Thomas H. Brasher, et al. “ Spring term, 1837.

This was an action of debt, brought on an instrument under seal. ■ On the back of the writ, there was indorsed these words: “ I acknowledge legal service of this writ, July 1st, 1837.” (Signed by defendant.) The entry was — At June term, 1838, came the parties, by their attorneys, and defendant saying nothing in bar or preclusion of plaintiff’s action, — it was considered by the court, that plaintiff recover, Plaintiff in error, assigned — that there was no such service of…

Debt, on. a written instrument, given for the purchase of a horse, tried before Lave. .1. One of the defendants sued in this case, not being served, plaintiff discontinued as to him, and declared against the other three.

Indictment for betting at a gaming table — tried before Martin, J. The defendant, in this case, was indicted for betting upon a gaming table, called “Jim Crow,” and plead non mlpabilis. The jury returned a verdict of guilty.

the Circuit court of Mobile. This was an action of trover, against the plaintiff in error, tried before Chapman, J. in the Circuit court of Mobile. The declaration averred the conversion of two promissory notes. To this the defendant demurred; and his demurrer being overruled, the case went to the jury upon the general issue, when a verdict was returned for the defendant in error, to the amount of the notes, charged to have been converted, with interest.

This was the case of an attachment, for a sum above fifty dollars, commenced before a justice of the peace, and returned into the County court. A motion was submitted to quash the attachment, upon various grounds, which appear in the opinion of the court; and it was sustained on the ground,'of a want of a sufficient affidavit. The position relied on for quashing the affidavit, was, that the justice who issued the attachment, had not signed his name at the bottom of the paper.

Clair county. The defendant in error, brought his action of assump-sit against the plaintiff, founded on a writing, in the words and figures following: “ William Holloway, sen’r, vs. “Joel Chandler. “In this case of slander, I agree to pay P. P. Lowe, fifteen dollars, for commencing and prosecuting the suit, together with one fourth of the damages ; — but if the said Lowe is non-suited in the action, for any informality in the pleadings, he is not to have any thing — This…

Scire facias on recognizance estreated. In this case, judgment nisi was rendered on a recognizance, against a principal recognizor, and his sureties; and on scire fa-cias, judgment final, was at a subsequent term of the court rendered against the same parties; and ^./«.issued against each of the defendants; in which the costs were taxed. To reverse the judgment, a writ of error was taken, and the following assigned: 1.

Indictment for an assault and battery, with intent to commit murder, tried before Judge A. Martin. Plea, not guilty. Yerdict, guilty. In the court below, the defendant moved to arrest the judgment,, and also for a new trial, both, of which motions were overruled. On the trial, several questions arose, which the presiding judge, considering to he novel and difficult, — referred to this court for its decision and judgment, as directed by the statute.

Assumpsit on a promissory note. Plea, non assump-sit. Verdict and judgment for plaintiff. On the trial of the cause, plaintiff offered in evidence a promissory note, given by three makers ; to which defendants objected, on the ground, that the name of Duncan Dew, one of the defendants, was not signed or subscribed to it. It did not appear that the note was ever signed by said Dew, otherwise than from its face.

Assumpsit, before Judge Lane. This was an action brought by plaintiff below, on a special agreement, which was in substance this : The defendant held in his hands an execution offi. fa. against one ¡'bonns W. Edwards, in favor of Charles Whitaker, which was levied on a negro boy named Henry, in the possession of the plaintiff, as the property of Thomas W. Edwards.

Debt on judgment — tried by Judge P. Martin. This was an action of debt on a judgment obtained in the Superior court of Escambia county, West Florida. Plea, mil tiel record ; which was sustained by the court.

Assumpsit on a promissory note. Plea, infancy and non-assumpsit. Replication to the plea of infancy, to wit: “ The plaintiff protesting, that defendant was not an infant, as alleged in his plea, says, that after he came of age, he promised to pay said note,” &c. To which replication, there was a rejoinder and issues. Verdict for plaintiff. The bill of exceptions stated, that all the evidence offered by plaintiff, was the note on which the action was brought.

Petition for an allotment of dower, tried before Judge Coleman. Petitioner prayed for an allotment of dower out of lands, purchased by her former husband from the State, under the act authorising the sale of lands granted by Congress to the State for internal improvement. At the death of the husband, full payment had not been made for the land, but the administrator had since completed the payments out of the assets of the estate.

Indictment for playing at cards — tried before Judge Shortridge. Plea, not guilty. Verdict, guilty. Defendant moved to arrest the judgment, on the grounds — That the grand jury were not sworn; and that the indictment was defective. The indictment contained three counts; the second of which did not allege a day certain, on which the offence alleged was committed — which motion the court declined hearing, on account of the defendant’s not being personally present in court.

This was an action of assumpsit, on an inland hill of exchange, protested for non-payment. On the trial, an exception was taken to the notarial seal, as being insufficient to establish the protest, because it did not appear to have been engraved with the arms of the State, as directed by the statute; and because, instead of being subscribed with the name of the notary, it contained the initials of his name only.

This was an action of assumpsit upon a promissory note, signed by the defendant in error. To the declaration, the defendant plead, the general issue, and the statute of limitations. The writ was issued on the twenty-fifth day of' March, eighteen hundred and twenty-nine — The note was dated the fourteenth day of February, eighteen hundred and twenty-three, and was payable one day after' date.

The action was brought by the plaintiff, as bearer — the note being made payable to Thomas W. Breedlove, or bearer, at two days after date, and dated the thirteenth of August, eighteen hundred and thirty-one.

<p>Error to the Circuit court of Lowndes county.</p> <p>Assumpsit — tried before Judge Hunter. Suit on a note against two defendants — Ivey and McBride. They pleaded several pleas-; also a joint plea of the statute of limitations. Replication, that the defendants had not been six years within the State of Alabama, previous to suit brought, and that the note was made in South Carolina ; on which issue was taken. Yerdiet for plaintiff, against Ivey, and in favor of McBride, and judgment against Ivey, who here assigned for error, that the judg tnent was rendered against him upon the verdict, as-found by the jury.</p> <p>argued — that where two defendants were sued on a joint contract, and one pleads a personal discharge — or gives in evidence matter which goes to his personal discharge — plaintiff may enter a nolle prosequi. — (2 Saunders, 260, 207 ; 1 Wilson, 90 ; 5 Johns. 160 ; 1 Peters’ R. 46, 74 ;) also, that a re-traxit is a bar to an action. Promise by two, to which the statute of limitations was plead — -and an acknowledgment by one — the other not bound. — (Angel on Limitations, 274.)</p> <p>If the plaintiff had replied as to Ivey only, It would have been a discontinuance — (1 Stewart, 130.) In assault and battery, if two defendants join in a plea of son assault demesne, the jury may find the plea true as to one, and not as to the other. — (1 Chitty, 544.) If the verdict here could not be sustained, it is in the power of two joint defendants to defeat any action. The replication was good. (1 Stewart & Porter, 36.)</p>

Bill of complaint, tried before Judge Crenshaw. ■ In this case, an injunction was obtained to stay proceedings on a judgment at law, which at a subsequent term, was, on motion of defendants, dissolved, and the hill dismissed for want of equity.

Action on the case — tried before Judge Harris. The action was brought to recover the amount of two promissory notes, placed in the hands of defendant, for collection, as an attorney at law, which defendant alleged he had handed to a third person, also an attorney, to collect. The defendant plead .the general issue, on which a verdict was rendered against him, for the amount, called for by the notes.