Volume 8 — Alabama Reports

Writ of Error to the Circuit Court of Perry. Claim interposed by Lockhart to certain property levied by virtue of a writ offi.fa. at the suit of Graham against A. B. W. Hopkins. The fi. fa. was issued the 6th of February, 1843. The claim bond was not executed by Lockhart, though his name is inserted in its caption as one of the obligors.

This was a proceeding, upon the final settlement of the estate of Seaborn P. Gillespie, of which the plaintiff in error was administrator, with the will annexed.

Writ of Error to the Orphans’ Court of Montgomery. This was a proceeding before the Orphans’ Court, for the settlement of the estate of Joseph Fitzpatrick, deceased, which had been reported insolvent by the plaintiff in error, its administrator. The defendant in error, as a creditor of that estate, preferred a claim against the same, the correctness of which, and the amount thereof, w’ere submitted to a jury for decision.

Writ of Error to the Court of Chancery for the fourth district of the Northern Division. The case made by the bill, after divesting it of extraneous matter, -is this: 'Chandler, in November, 1838, was desirous to borrow some money, and was ignorant that unchartered associations were ■prohibited from issuing notes, to circulate as money.

This was a proceeding upon the settlement of the estate of Joseph Fitzpatrick. The defendant in error presented a claim against the estate, consisting of a judgment obtained by him in the Circuit Court of Macon, against the plaintiff’s intestate, and others. For answer to this demand, the defendant pleaded, that the judgment aforesaid, was by the defendant thereto, taken to the Supreme Court, and bond given to supersede the execution.

Writ of Error to the Circuit Court of Butler. This was an action at the suit of the defendant in error, against the plaintiff in error. The declaration contains several counts, the first of which is in case, and alledges that the plaintiff, defendant, and one Brown, were the sureties of William Burke, in a bond for the forthcoming of a slave, named John ; which bond was such as the statute requires to be executed by a defendant in the action of detinue.

Writ of error to the Circuit Court of Sumter. Assumpsit, by Williamson, against the defendant, as the maker of a promissory note.

<p>1. When a defendant is offered as a witness, to prove usury, he cannot be confined in Ms testimony to the instrument upon wMch the suit is brought, but may prove other transactions connected with it; as that other notes existed, which have been cancelled, the consideration of which entered into, and formed a part, of the note sued.</p> <p>2. A promise by the maker, to an innocent holder of usurious paper, to pay ft, if indulgence is given, is binding on him, and may be enforced, if the delay is given.</p>

Writ of Error to the Circuit Court of Barbour. Pulaski Mann and Leroy Gunter, were charged in three several indictments, with assaults and batteries ; on all of which they were found guilty, by the verdicts of juries. In the first case, the parties were fined eighty-five dollars each; in the second, eighteen dollars each; and in the third, twenty dollars each. Judgments were accordingly rendered against each of the defendants for the fines and cost.

Assumesit by Reynolds, against Hogan, Hardin & Tompkins, as partners of a mercantile firm, doing business under the name of James A. Hogan & Co. The declaration, besides the general counts, contains several in -which the liability of the defendants is charged to arise from a written instrument, in these terms: “March 12th, 1838.

The action was brought to recover damages for improperly suing out three attachments, against the defendant in error. The defendant demurred to the declaration, which was overruled by the Court, and judgment rendered for the plaintiff The error assigned is, the overruling the demurrer to the declaration.

Writ of Error to the Circuit Court of Lowndes. - The plaintiff in error sued out an attachment on the 14th October, 1842, against the estate of Lewis B. Talliaferro, who it was alledged, resided without the limits of this State; which being levied by the sheriff of Lowndes, on certain slaves, the defendant in error interposed a claim, and gave bond with surety, for the trial of the right, as provided by statute.

Motion by the Bank, against the plaintiff in error, as maker of a promissory note. The defendant appeared and issue was joined, on the plea of payment. The defendant, as appears from a bill of exceptions, introduced the Cashier of the Bank, and asked him, if he had produced the books, agreements, &c., connected with a shipment of cotton by the Bank, and produced the subpoena executed on him, and the President, requiring them to produce them.

Writ of Error to the Circuit Court of Sumter. The defendant in error declared against the plaintiff in assump-sit, for money had and received. On the trial before the jury, the defendant below excepted to the ruling of the Court.

<p>Error to the Circuit Court of Lowndes.</p>

This was a proceeding under the statute, at the suit of the defendant below, for a forcible entry and detainer.

Assumpsit by the defendant, against the plaintiff in error, upon an indorsed note, of which he was the maker. The declaration contained four counts, all of which were demurred to, and the demurrer sustained to all, except the: third count.

<p>Writ of Error to the County Court of Benton.</p>

Teespass on the case, by the plaintiff in error, against the defendants in error, as common carriers. Upon the trial, it appeared that the defendant, Green, was the owner of a ferry across the Coosa river, near the mouth of Beaver creek, and that Elliott was his ferryman.

Writ of Error to the Orphans’ Court of Wilcox. The plaintiff in error filed his petition in the Orphans’ Court, as the administrator of Thomas Evans, dec’d, late of Wilcox county, in which he represented that the personal estate of his intestate, was insufficient to pay the intestate’s debts; and alledging that he died siezed and possessed of a tract of land, (particularly described,) situate in that county, which should be sold and made assets for the payment of debts.

Motion, by the Bank, for judgment on a note, made by Josiah Blackman, payable to Billups Gayle, Cashier, or bearer, negotiable and payable at the Bank. The defendant appeared and pleaded, that Edmund Harrison, whose name is signed to the notice, was not, at the date of said notice, President of said Branch Bank, but that one Theophilus L. Toulmin, was at that time President of the Bank. To this plea the plaintiff demurred, and the Court sustained the demurrer.

Writ of Error to the Circuit Court of Lowndes. The defendant in error having obtained a judgment against John H. Walker, caused & fieri facias to be issued thereon, which was levied by the sheriff of Lowndes on a negro man named Joshua, as the property of the defendant in execution, and the plaintiff interposed a claim, and gave bond with security, as required by the statute, to try the right.

<p>Error to the Orphans’ Court of Clarke.</p>

<p>1. A garnishment to obtain satisfaction of a judgment, must issue out of the Court in which the judgment was rendered; therefore, a garnishment can-notissue out of the County Court, when the judgment was rendered in the Orphans’ Court</p>

The bill was filed by Benjamin Lathrop, and Benjamin Mock, jr., and charges, that the defendant, Clapp, had a real or pretended claim on one Haynes, for $12,800.

Assumpsit by the defendant, against the plaintiff in error. The question is presented in this Court, upon a case agreed, which shows the following facts: The plaintiff was the wife of defendant’s brother, but had for sometime been a widow, and had several children. In 1840, the plaintiff resided on public land, under a contract of lease, she ha’d held over, and was comfortably settled, and would have attempted to secure the land she lived on.

Writ of Error to the Circuit Court of Marengo. Debt on a sealed note, by Buford against Weir and others. The declaration describes the note as payable to Buford generally, but when produced in evidence, it appeared to be payable to him, as the agent of Eleanor Williams, and the sum promissd to be paid, was for the hire of two negroes, to wit: Fanny, Daley and child, from the date of the note to the 25th December, 1842.

The bill was filed by James Manning, who alledges, that he left his signatures on blank sheets of paper, with Robert J. Manning, with the distinct understanding, that they should be used only in business transactions; that on the 11th October, 1839, by writing his own name, and the form of a note, over one of these signatures, R. J. Manning made the joint note of himself and complainant, negotiable and payable at the Branch Bank at Decatur, for $1,900, payable twenty-four…

<p>Writ of Error to the County Court of Mobile.</p> <p>The plaintiffs in error declared against defendants in an action on the case; stating that Helen N., at and before her intermarriage with her co-plaintiff, Thomas J., was entitled to, and possessed in her own right, and as her own property, of fifty shares of the capital stock of the defendant, (a corporation,) of the value of ten thousand dollars ; which stock was then, and previously, standing in her name in the books of the Company. That He-' len N., before her marriage, and herself and husband since, were entitled to the dividends, &c. accruing on that stock, and to have and demand the same of and from the defendant. It is averred that the defendant, in violation of the rights and property of Helen N., before her intermarriage with her co-plaintiff, suffered the fifty shares of stock to be transferred on the books of the corporation, without her authority, (or that of any person duly authorized,) to Samuel St. John, jr., and the certificate that had been previously issued by the Company to her was cancelled and revoked, so that the stock, with the dividends thereon, were wholly lost, &c.</p> <p>The defendant pleaded, that the plaintiff, Thomas J., after his marriage with Helen N., and after the accrual of the several causes of action in their declaration mentioned, became a bankrupt, under and according to the act of Congress, passed August 19, 1841; and the District Court of the United States for the Southern District of Alabama, in pursuance of that act, previous to the commencement of this suit, declared Thomas J. a bankrupt, and such further proceedings were had in that Court, that he received his final certificate and discharge, &c. It is then averred, that all the property, and rights of property, of Thomas J., with the exception specified in the act, vested in Ptolemy T. Hands, the assignee appointed by the District Court, &c.; and the shares of stock supposed to be held by Helen N., and claims for dividends thereon, vested in the assignee.</p> <p>The plaintiffs replied, that before their intermarriage, the defendant had permitted the transfer of the stock as stated in the declaration, and that after their intermarriage, but before the application of the said Thomas J. for the benefit of the bankrupt act, and before any decree was rendered against him, he did convey, by way of release, to the said Helen N., for her sole use and benefit, all the right, title and interest he had acquired by virtue of their marriage, to the stock, as also the right to sue the defendant for permitting the unlawful transfer thereof.</p> <p>The defendant craved oyer of the release set it out, and demur-ed. The release bears date six days before the plaintiff, Thomas J. was declared a bankrupt, and recites that Helen N., previous ty the intermarriage of herself and co-defendant, was entitled to certain property and estate, rights and credits in her own right, and also to all the benefits secured to her by law as the heiress of her father Joshua B. Leavens, then deceased; as well as the benefits accruing to her under the will of her father, recorded in the County Court of Mobile. All which estate of Helen N., then unsettled, remained in the hands of the executor of Joshua B., undisturbed and undivided, not recovered, nor in any manner redueed into possession by Thomas J. And Thomas J. having determined not to take any steps to reduce the choses in action, &c. of his wife into possession, but has elected to abandon the same, and renounce all his marital rights therein, and release to Helen N. his contingent marital right unto her said separate estate and choses in action, and to vest in her full and exclusive power to recover and reduce the same into her own possession, should she think proper so to do, for her sole and separate use and benefit, and the benefit of her heirs, &c. free from all claims of her husbend, and all others claiming through or under him.— The instrument then proceeds to release, &c., to Helen N., her heirs, &c., forever, all his claim, right, interest, property, &c. in and to every thing to which she was entitled, either in law or equity, in consequence of his marriage with her, and which he had not reduced into possession; so that the same may be recovered by Helen N., and held and enjoyed by her in her sole and separate right, &c. The demurrer was sustained, and the plaintiff declining to plead further, judgment was render ed for the defendant.</p> <p>made the following points :</p> <p>1. If an incorporated company improperly transfer stock standing in the name of a subscriber, so that the stockholder’s right is reduced to a mere chose in action, he may maintain an action against the company. [9 Eng. Com. Law, 444; 2 Eden’s Rep. 299.]</p> <p>2. The right, of the wife, being a chose in action at the time of the marriage, did not vest absolutely in the husband, and his deed in favor of the wife, vested the entire and exclusive interest in her. [2 Brock. Rep. 285; 3 Paige’s Rep. 440; 4 Id. 64 ; 10 Peters’ Rep. 594; 1 Atk. Rep. 259,270-1 ; 5 Yes. Rep. 78 ; 2 Swanston’s Rep. 109.] And the subsequent bankruptcy of the husband did not impart to the assignee the right to sue for the improper transfer of the stock. [Owen on Bankr. 125; Eden on Bankr. 192; 1 Term Rep. 356, 619; 3 Bos. & P. Rep. 40; 1 M. & S. Rep. 326 ; 1 P. Wms. Rep. 316.]</p> <p>3. It is supposed by the defendant’s counsel, that the plaintiff, Thomas L, must have filed his petition in bankruptcy before the deed of release was executed, because it bears date but six days before the decree adjudging the petitioner a banlorupt was rendered, and the act of Congress requires that twenty days shall intervene between the filing of the petition and decree. The date is an immaterial part of a deed, and may be shown to be untrue — it cannot outweigh upon demurrer, the allegation that the deed was executed before the petitioner sought the benefit of the bankrupt law; otherwise the plaintiff would be prevented from showing that the deed was made and delivered long before it bears date. It must be intended from the replication that the release was executed before the petition was filed.</p> <p>The application of Thomas J. was voluntary, and could be dismissed by him at any time until the final decree was rendered ; neither his wife nor creditors could control him in the prosecution of his suit. The interlocutory decree did not vest in the as-signee, the wife’s choses in action, or take from the husband the right to relinquish to her his claim to them. The release does not operate as an original conveyance, but as a mere renunciation of title to one who has a paramount equity. The husband might refuse to reduce the wife’s choses in action into possession, and he may have avowed such to have been his determination before he filed his petition in bankruptcy; if so, the institution of that proceeding voluntarily, would not render the release inoperative,</p> <p>The replication admits the fact that a decree was rendered in pursuance of the act of C ongress, but contradicts the release as to the time when the petition was filed. This contradiction could only be taken advantage of by craving oyer of the release, setting itout and demurring. [1 Chit. Plead. 415, 660; 1 Saund. Rep. 468, and notes.] Taking the date of the release to be true, and it is obvious that the petition was filed before it was execnted; and there must have been twenty day’s notice of the petitioner’s application, in order to make the decree regular — this it must be supposed was given. [3 § of Bankr. Act of 1841; Eden’s Bankr. Law, 205.]</p> <p>The facts set forth in the replication does not avoid the bar of the plea. [2§ Bankr, Act. of 1841.] A court of law recognizes no dealing between the husband and wife; though a Court of Chancery will sometimes sustain a settlement or other equivalent act by the husband, yet a court of law will treat it as invalid. In a case like the present, the wife could assert her rights against the assignee, under all the equities of the case. [2 Yern. Rep. 565; 1 P. Wms. Rep. 458; 2 Atk. Rep. 562; 1 N &McC. Rep. 33; 1 Green’s Rep. 398.] The choses in action of the wife vest in the assignees of the husband, at least so far as to prevent the latter from making any disposition of them. [Roper on H. and Wife, 140; 1 P. Wms. Rep. 248; 3 Yesey’s Rep. 617; Clancy on Rights, &c. 476; 2 Kent’s Com. 138.]</p> <p>As to the plea, it is believed to be free from objection. [1 Chit. Plead. 17; 15 East’s Rep. 622 ; 11 Eng. Com. Law Rep. 348.]</p>

Writ of Error to the Circuit Court of Lowndes. Assumpsit by Crawford, for the use of William T. Sireety, against Lamkin. The declaration has three counts, which were severally demurred to.

<p>Novel and difficult questions from the Circuit Court of Talla-dega.</p> <p>Tub defendant was indicted, found guilty, and fined, for voting in the last Presidential election, without being legally qualified to vote.</p> <p>From a bill of exceptions, it appears, that the defendant was a citizen of Georgia, up to September, 1843 — that about that time, being in this State, he declai'ed his intention to settle in Talladega county, if he could procure a site for an iron foundry, from one Robert Jemison. That between the 1st and 15th of September, he leased from Jemison a place in Talladega county, for this purpose, for five years, which took effect from its date. That soon after the lease was made, he employed Jemison to get lumbei', for the foundry, and left for the purpose of bringing his family to Tal-ladega. That he was delayed from some cause, in getting back with his family, and did not reach Talladega until the 26th November, 1843 ; and on his return explained to Jemison the cause of his delay. He established his foundry, and has ever since resided in Talladega county,and on the 11th November, 1844, voted at the Presidential election. It further appeared, that on the day of the election, and before he voted, he took the advice of a lawyer, as to his right te vote, who told him that he had a right to vote.</p> <p>Upon this evidence, the Court was of opinion, that he was legally guilty, as charged in the indictment, which is now certified as novel and difficult.</p> <p>The quo animo is the real subject of inquiry. An implied residence is sufficient, if the intention is clearly made out. [1 Kent’s Com. 77; 8 Cranch, 253.] When the defendant leased the foundry, if his intention was to become a resident of this State, he became so in fact, although his family were in Georgia: nor did he lose his citizenship by going to Georgia for them, because he had the animus rever-tendi. The residence of the husband, or father, is not lost by the failure or omission of the rest of the family to join him. The jury were judges, both of the law and fact.</p> <p>Two things must concur, to constitute domicil, to wit: actual residence and the intention of making it the home of the party. The animo et facto must concur. [Story’s Con. of L. 42, §44; 3 Yes. 198; 5 id. 750; 10 Pick. 77; 5 id. 370; 2 B. & P. 228; 11 Mass. 423 ; 4 Cow. note, 516.]</p> <p>A mere intention to acqnire a new domicil, without the fact of removal, avails nothing; nor is an original domicil lost, until the new one is acquired, animo et facto. The residence of the famly, is the domicil, although the head of it may have another place of business. But in this case, it does not appear, that Hallett expected, or intended to be in Alabama, by the 11th November, 1843.</p>

<p>Writ of error to the Circuit Court of Talladega.</p> <p>The defendant in error declared against the plaintiffin assump-sit. 1. On a promissory note, dated the third ofNovember, 1838, for the payment of two hundred and eighty-seven dollars, twelve months after date. 2. For money had and received. 3. For goods, wares and merchandize, sold and delivered. 4. For money lent and advanced. To each of these counts there was a demurrer, which being overruled,the defendant below pleaded — 1. Non assumpsit. 2. A setoff. 3. Want of consideration. 4. Failure of consideration. 5. Statute of frauds, alledging that the cause of action in each count, except the first, is an open account; and, 6. To all of the declaration, except the first count, defendant pleads the statute of limitations of three years. On motion of the plaintiff, the fifth plea was stricken out, issue was joined on the others, and the cause was submitted to a jury, who returned a verdict for the plaintiff, for the sum of $547 87 damages: and judgment was rendered accordingly.</p> <p>From a bill of exceptions it appears that the plaintiff had been a partner in a mercantile firm with one Brasher, his son-in-law; upon a dissolution of their partnership, Brasher received the effects of the concern and undertook to pay the debts. Afterwards Brasher formed a similar partnership with one Favour. This latter firm being also dissolved, Brasher received its effects and stipulated with his partner that he (Brasher,) would retain one thousand and seventy-six dollars, the amount of his individual account against the concern, and appropriate the residue, amounting to some thousand dollars, to the payment of the partnership creditors. The defendant received for collection as a justice of the peace some of the claims due Favour & Brasher; for so much as he had collected and failed to account for, this action was intended, among other things, to recover. •</p> <p>There was evidence tending to show, that Brasher’s object, in taking the receipt of the defendant, in the plaintiff’s name, was to indemnify the latter from loss, in consequence of the failure of the former to pay off the debts of Stewart & Brasher.</p> <p>During the partnership of Favour & Brasher, they owned a house, of which, upon the dissolution, Brasher became the sole proprietor, by the purchase of Favour’s interest. This house and lot was afterwards sold by Brasher to the defendant, who, in part payment, took the note described in the first count of the declaration, payable to the plaintiff.</p> <p>On the 25th of January, 1838, Favour & Brasher, made a note for the payment of four hundred dollars, to one Holloway, on which there was an indorsement to the defendant, dated the 21st August, 1838. The signature of the indorser was proved, the date was not otherwise shown, but it was proved that the defendant had the note in his possession previous to the 22d day of November, 1843, more than one year before this suit was commenced.</p> <p>The bill of exceptions, after reciting with great particularity, the facts above condensed, proceeds thus: “The questions were, 1. Whether the note of Favour & Brasher to Holloway, indorsed to Lowrie as above, could be set off against the note declared onand, 2. Whether it could be set off against the claim for collected monies. The Court charged the jury that the giving of the note by Lowrie to Stewart, estopped him, under the circumstances, from asserting that it belonged to Favour & Brasher, so as to justify a set off against them; and that the giving of the receipt to Stewart, although for effects of Favour & Brasher, or which had belonged to them, had the same' effect, and thereupon excluded the note from the jury.” Thereupon the defendant excepted, &c. It appears from the judgment entry, that the sixth plea was stricken out by the Court.</p> <p>contended — 1. That the sixth plea was good, and consequently should not have been stricken out. [1 Ala. Rep. 124: 6 id. 509.] 2. If the transfer of the claims due Favour & Brasher was merely colorable, or fraudulent, as is shown by the evidence recited in the bill of ex- . ceptions, then the defendant below should have been allowed‘to setoff the note acquired from Holloway. 3. Neither the undertaking to pay the plaintiff the sum expressed in the note declared . on, or giving him a receipt for the claims placed in the defendant’s hands by Brasher, estopped the defendant from insisting that the transaction was fraudulent as between the plaintiff and Brasher; or prevent him from relying on the set off. 4. The three last counts in the declaration are imperfect, and to them at least the demurrers should have been sustained.</p> <p>for the defendants in error, insisted, that, the declaration was good. The sixth plea was not an answer to the declaration; for the common counts are not necessarily founded upon open accounts, and not alledged to be so. The striking out of the plea is only shown by the judgment entry, and not by the bill of exceptions — will it be considered by this Coui^t? 2. The note of Holloway was not good as a set off. It does not appear that the defendant acquired it, until after he made the note to the plaintiff; but if he had it previously, he was estopped from setting it up, by consenting to become the plaintiff’s debtor, instead of becoming liable to Brasher. In respect to the sum of $1,076 dollars, which Favour and Brasher owed Brasher, certainly the latter had the right to use that sum as he pleased. He transferred effects of the firm to that extent to Stewart, and that it might be realized, he placed some of the claims in the defendant’s hands for collection. Thus far there is no right of set off. Again; the defendant could not retain money collected by him, as a justice of the peace, in satisfaction of his own private demand.</p>

<p>Writ of Error to the Circuit Court of St. Clair.</p> <p>Walker on the 30th June 1842, sued out a writ in assumpsit against Massey, returnable to the then nextSeptember term. Bail having been required, the defendant Was arrested, and entered into the usual bail bond, with surety. Afterwards, on the 17th July of the same year, the plaintiff sued out an ancillary attachment, which is returned levied.</p> <p>At the return term, the defendant moved to quash the attachment, which motion was refused.</p> <p>He then pleaded in abatement of the attachment — 1. Because the bail writ before sued out had been executed on the defendant. In this plea the attachment is said to be the leading process in the suit. 2. A similar plea, showing the arrest of the defendant under the bail writ, and leaving out the assertion that the attachment is the leading process in the suit. Both pleas pray judgment of the attachment that it may be quashed.</p> <p>The plaintiff replied to the first plea, that there was no record of any such attachment, forming the leading process in the suit, and avers that the attachment sued out is ancillary to the suit commenced by the bailable process, and that both writs formed one suit. To the second plea he demurred. The defendant took issue “ in short,” to the plaintiff’s replication to the first plea.</p> <p>The judgment only recites that the demurrer to the second plea was sustained ; the issue formed on the first plea in the count was found for the plaintiff, and the defendant saying nothing further in bar, or preclusion of the plaintiff’s demand, it was considered, &c., rendering a final judgment.</p> <p>The defendant now assigns, that the Circuit Court erred—</p> <p>1. In overruling the motion to quash the attachment.</p> <p>2. In sustaining the demurrer to the second plea.</p> <p>3. In deciding the issue formed on the first plea in favor of the plaintiff.</p> <p>4. In not awarding a judgment of respondeas ouster after sustaining the demurrer.</p> <p>5. In rendering judgment final upon the state of facts shown by the record.</p> <p>6. In rendering final judgment, without having first awarded a judgment of respondeas ouster.</p> <p>7. In trying the issue joined, and in not submitting it to a jury.</p> <p>made the following points: 1. The estate of a debtor cannot be attached, on mesne process after his body has been arrested in the same suit. [Daniels v. Wilcox, 2 Root, 346; Brinly v. Allen, 3 Mass. 561.</p> <p>2. The issue growing out of the second plea should have been submitted to a jury.</p> <p>3. A judgment of resp ondeas ouster is the only proper one which can be given on the plaintiff’s demurrer to a plea in abatement. [1 Lord Raymond, 338, 550; 16 John. 307; Com. Dig. 142; Burntham v. Webster, 5 Mass. 266.]</p> <p>1. The refusal to quash is not reviseable on error, (Reynolds v. Bell, 3 Ala. Rep. 57,) but the attachment is regular. [Houn-shell v. Phares, 1 Ala. Rep. N. S. 580.]</p> <p>2. The issue was properly nul tiel record, and therefore to be tried by the Court. [Gaston v. Parsons, 8 Porter, 469.] And the record shows that the defendant declined to plead over. [McCutchen v. McCutchen, 8 Porter, 151; Chilton and Bowrdon V. Harbin, 6 Ala. Rep. 171.]</p> <p>4. The bail writ does not preclude the suing out of the ancillary attachment. A parallel case exists under the statute, which gives a ca. sa. axid.fi. fa. at the same time. [Cary v. Gregg, 3 Stewart, 433.]</p> <p>cited, Daniels v. Wilcox, 2 Root, 346 ; Bradley v. Allen, 3 Mass. 561; 3 Ala. Rep. 57, 250, 363; 4 ib. 393, 687.</p>

This was an aetion commenced by the plaintiff in error, by attachment. The cause assigned for the suing out the attachment, in the affidavit, is, that the defendant is a “ non-resident.” For this cause the attachment was quashed by the Circuit Court. From this judgment this writ is prosecuted. argued, that the Court should not have quashed the attachment, but should have put the party to his plea in abatement. [6 Ala.

Writ ofErrortothe Circuit Court of Russell. The defendant in error suggested to the County Court ofRus-sell, that on the 12th December, 1840, he became the surety of the plaintiff in a promissory note for the payment of $250, to David Golightly; that at the August term of that Court, holden in 1842, Wm. S- Chipley, as the administrator of the payee, recovered a judgment on the note against the plaintiff below, for the sum of $263 87.

Writ of Error to the County Court of Sumter. The writ of error in this case is sued out by Watson and his wife, who is the Emily Easley hereafter named, and a motion is submitted to amend the writ of error in the parties plaintiff, so as to conform to the transcript sent to this Court. The motion is resisted, and a cross one made to dismiss.

Ejectment by the defendant in error, for a lot in Mobile. Upon the trial, as shown by a bill of exceptions, it appears, that the plaintiff, to prove title to the premises, read in evidence a statute passed9th January, 1836,entitled “an act for the relief of Elizabeth Morris,” and proved that James D. Wilson was her uncle; that her mother was the sister of said James; that herself, her mother, her father, and said James, were all natives of Scotland, and not naturalized.

Writ of error to the Circuit Court of Lowndes. Held: &c. made the following points : 1. The discharge of the defendant under the bankrupt law', did not impair the lien which the plaintiffs acquired by their judgment, execution and levy. [2 Caine’s Rep. 300; Ex parte Foster, 5 Law Rep. 55; In the matter of Cook, id. 443-4-5-6 ; Kittredge v. Warren, 7 id. 77; Kittredge v. Emerson, id.…

Writ of Error to the County Court of Russell. Judgment was obtained at the spring term, 1842, by Smith, in a suit in Russell Circuit Court, against one Hunt, for $202. On this judgment, Smith sued out garnishee process against one Shearman, as a debtor of Hunt.

The bill was filed by the defendant in error. The material allegations, are, that the Rail Road Company was incorporated by an act of the Legislature, in 1832, and subsequently amended. Held: that it was no defence to that ac» tion, and that the complainant could only have relief in equity, and a verdict was found, and judgment rendered against him, for .$14,918 29.

Writ of error to the Circuit Court of Perry. This was an action of debt, commenced in May, 1843, at the suit of the plaintiff in error against the defendants, as the sureties of James L. Chandler, for the performance of his duties as a constable of Perry county. The breaches alledged are, the receipt of two executions, (particularly described in the declaration,) on which the money has been made, but not paid over on demand; .and further, that the same have not been returned.

Writ of Error to the Circuit Court of Dallas. Assumpsit by George against the Rail Road Company. The declaration, besides the common counts, has one, in which the plaintiff' counts on a special contract between himself and the Company, by which he was to perform certain work, and labor, on the road, for certain compensation to be paid him.

The bill was filed by the defendant in error, and alledges, that the firm of D. Casey & Co. recovered a judgment against Chas. Cullum, for the sum of $4,702 43, besides cost of suit, at the. February term, 1838, which was affirmed by the Supreme Court, at the January term, 1839, against Cullum, and Joseph Wiswall as his surety.

Writ of Error to ithe Court of Chancery sitting in Shelby. The defendant in error, as the administrator of Agnus Black, recovered a judgment against James Clark, in the Circuit Court of Benton; Clark filed his bill in the Chancery Court, which was then holden at Talladega, for the county of Benton among others, obtained an injunction, and gave a bond for the prosecution of the same, which was deposited with the Register of that Court, to which the name of the plaintiff in…

Writ of error to the Circuit Court of Sumter. Assumpsit by the Grahams against Tankersley, as their regular indorsee of a note made by James A. Terry, Stephen Register, and John W. Hawthorn, payable to one Philip Jones, and by the latter delivered to the defendant, who indorsed it to the plaintiff.

This proceeding was commenced before a justice of the peace, by the defendant in error, and was carried by certiorari to the Circuit Court of Randolph, on the petition of the plaintiffs in error. From the record of the judgment, certified by the justice, it appears that a judgment was rendered by him, for the defendant, against the plaintiff in error, for #49 62 1-2, besides costs.

Writ of Error to the Circuit Court of Mobile. This was an action of ejectment, at the suit of the plaintiffs, for the “recovery of one lot, or parcel of land, being number nine, of square number one, of lots and lands sold by James Innerarity, to William H. Robertson, lying, &c. The defendants were let in to defend, upon entering into the usual consent rule; a verdict was returned for the defendant, and judgment was rendered accordingly.

Writ .of error to the County Court of Butler. Assumpsit, on the common counts, by Joseph Jones against Frances Jones, as the administratrix of James Jones* for a debt due from the intestate. The promise to pay is alledgeé to have been made by the intestate in his life time, and by the adminis-tratrix since his death.

Ejectment, by the plaintiffs in error, executors of Joshua Kennedy, against the defendants in error, for a tract of land in the city of Mobile. The plaintiffs, to sustain their cause, introduced a translation of the application of Thomas Price, to the Spanish authorities, for a parcel of land in Mobile, with the orders and grants of the Spanish authorities thereon. Also, a deed from Price to Wm.

<p>Writ of Error to the Court of Chancery sitting in Henry.</p> <p>The facts of this case, so far as it is necessary to notice them, may be thus condensed. Moses Mathews obtained a decree for the foreclosure of a mortgage, and a sale of the mortgaged premises, against John M. Kimmey. Among other things, the decree directs that the Register “ execute a deed, or deeds, of conveyance to the purchaser or purchasers, and that they respectively be let into possession of the premises, which may be by them purchased.” The defendant in error became the purcha* ser of a part of the land, and gave notice of the fact to Trammel, demanded the possession, and informed him, that unless he yield* ed it up, the Register would be moved for a writ of assistance to eject him,' and substitute the purchaser in his stead.</p> <p>The demand was disi'egared, the writ was issued, Trammel ejected, and the purchaser let into possession.</p> <p>Trammel sued a- writ of error, returnable to this Court, to re* vise the pi-oceedings consequent upon the decree of foreclosure and sale, so far as they affect him.</p>

Writ of Error to the Circuit Court of Dallas. Sci. fa. upon a forfeited recognizance.

Writ of Error to the Circuit Court of Mobile. Ejectment, by the plaintiff in error, against the defendant in error. The plaintiff produced a patent from the United States, for the premises in question, which calls for “ the south boundary of the Bake-house lot” as one of the lines of the tract, which patent issued on the 14th November, 1837, in virtue of the act of Congress, of May, 1822, confirming the claim of the heirs of Robert Farmer, 3 vol. Am.

Writ of error to the Circuit Court of Coosa. This was a suit instituted before a justice of the peace, at the instance of the defendant in error, against the plaintiff, Windham, for the recovery of $5 6 1-4. A judgment was rendered against Windham, for the amount claimed, with interest and costs.

Writ of Error to the Circuit Court of Dallas. Action of debt, by Morrow and Nelson, against Weaver and Frow, as the sureties of one Parkman, on a. prison bounds bond, conditioned that the said Parkman, should continue a true prisoner, in the custody, guard, and safe keeping of the keeper of the prison, or of his steward, bailiff, deputy, or other officer, or of some of them, within the limits of the prison bounds of said prison, as by law established, until he should be…

<p>Error to the Circuit Court of Macon.</p> <p>Attachment, by the defendant against the plaintiff in error.</p>

<p>1. A judgment nisi rendered upon a recognizance, when it does not conform to the recognizance, may be amended nunc pro tunc; and if a motion for that purpose he overruled, the refusal may he revised on error.</p>

Writ of Error to the Circuit Court of Henry. The proceeding commenced with a notice, directed to Mc-Lendon, or his attorney, by which he is informed, that Jones, as the executor of Abner Hill, on the 3d Monday of April, 1844, at the Circuit Court, to be holden for Henry county, would proceed to establish a judgment against the defend ant, in the above stated case.

<p>Novel and difficult questions from Mobile.</p> <p>The prisoner was indicted in the Circuit Court of Mobile, fop burglary. The indictment contained two counts, in one of which the prisoner is charged to be the property of Joseph Bryan, and in the other, the property of some one unknown. Tbe jury found a general verdict of guilty, upon which the Court passed sentence.</p> <p>Pending the trial, a bill of exceptions was taken, by which it appears, that upon the empannelling of the jury, one George W. Gaines was sworn to answer questions, touching his qualifications, and to the question asked by the Court, “ have you any fixed opinion against capital or penitentiary punishments ?” answered, that he had as to capital punishments.” Upon which the Court set him aside as a juror, without calling upon either the prisoner or the State to challenge him.</p> <p>William B. Sayre, being also called as a juror,and answering that he “was not a house holder, or free holder,” was in like manner directed to stand aside.</p> <p>Another juror being called and empannelled, the counsel for the prisoner, for the first time signified their dissent to the Court setting aside jurors who were challengeable for cause, when the Court recalled Sayre, and called upon the State to challenge or accept him — the State accepted him, and he being put upon the-prisoner, and the prisoner neither accepting or challenging,, but standing mute, the Court directed the juror to stand aside.</p> <p>Two other persons were also called as jurors, who, on being-questioned as to their qualifications, said upon oath, that they did not understand the English language sufficiently well to serve as jurors, and thereupon the Court set them aside, without putting them upon either the State or the prisoner.</p> <p>Upon the trial, the prisoner proved that he was a bright mu- ■ latto, and that for a number of years he had acted as a free person — that he owned property, or claimed it, and had made contracts as a free person, To prove that he was a slave, the State offered as a witness Joseph Bryan, charged in the first count of the indictment, to be the owner of the prisoner, who stated that he did not consider himself to be the owner of the prisoner. That some six or seven years before, a bill of sale of the prisoner had been transferred to him, by Isaac H. Erwin; that in his opinion he had acquired no right of ownership under the bill of sale, that it was brought to him by the prisoner — -that he had not given Erwin any consideration for it, nor had he ever conversed with Erwin in relation to it. The prisoner objected to the testimony, because of the interest of the witness, and because he could not speak of an instrument of writing not in Court. The Court overruled the objection, and permitted the witness to testify.</p> <p>The State then offered B. B. Breeden, Esq. who testified that several years before, the prisoner had applied to him to draw up a petition to the Legislature for his freedom. Witness said, that he prepared the petition, but that the prisoner never called for it, nor had he paid witness for it. The witness was an attorney at law, and the application was made to him at his office. The prisoner objected to this testimony going to the jury, because the facts were confidentially disclosed to the witness as an attorney at law, and because the prisoner could not admit that he was a slave. The Court overruled the objection.</p> <p>The prisoner being convicted, moved in arrest of judgment, because the verdict of the jury was general, and did not state upon which countof the indictment they found the prisoner guilty, and did not ascertain whether he was the slave of Joseph Bryan, or of some person unknown. The Court refused to arrest the judgment, and certified the several matters above as novel and difficult.</p> <p>made the following points:</p> <p>The jurors were improperly set aside by the Court, although challengeable for cause. There wds no authority whatever for discharging the jurors who professed not to know the English language. If that were so, of which there was no proof, they were still competent jurors.</p> <p>The confession to Breeden, as an attorney at law, was a privi-ledged communication. [2 Russ. 554; 2 Starkie, 400; 2 Brod. & Bing. 1; 6 Madd. Rep. 47.]</p> <p>The testimony of Bryan as to the bill of sale, was incompetent proof, [Archbold’s P. 106.]</p> <p>cited 1 Porter, 309; 2 Mason, 91; 4 State Trials, 1, 750 ; 14 Pick. 422; 2 Starkie, 396; 6 Madd. Rep. 47; 1 Blackford, 317; 6 Rand. 667; 9 Porter, 126.</p>

<p>Writ of Error to the Circuit Court of Bibb.</p> <p>This was an action of assumpsit, at the suit of the defendant in error. The questions of law presented, arise upon a bill of ex* •ceptions taken at the trial, by the defendant below. It appears that the plaintiff proved that he sold a mare to the defendant, at ■sixty-five dollars, to be delivered to Chesly Payne, and to be paid for by the defendant, in the labor of his two sons, for four months, at sixteen dollars per month. It was agreed, that as one of the boys was “ puny,” he was to make up the lost time, if any occurred, through sickness.</p> <p>The defendant proved, that he sent his two sons to perform the labor as agreed; that they worked six or seven days, when the healthiest of the two had a slight attack of sickness, at night, and the morning after, the plaintiff told them to go home;' and that they need not return again at that price. As they left, the plaintiff told one of them, that he might return and work eight months; but neither of them ever returned.</p> <p>The defendant’s counsel prayed the Court to charge the jury, “ that if the defendant sent his boys under the contract, to perform the labor, and the plaintiff sent them home, telling them they need not return again at that price, then the defendant was not bound to send them back again till it was intimated to him by plaintiff, that he would receive them.!’ Which charge the Court refused to give. Defendant’s counsel then asked the Court to charge the jury, that if the defendant sent his two boys to plaintiff, to work out the price of the mare, agreeably to the contract, and after working six or seven days, Johnson sent them home, telling them they need not return again at that price, which was the price agreed upon by contract, that then Duckworth was not bound to send them back again, unless demanded by Johnson. This charge the Court also refused to give, but charged the jury, that defendant was bound to send them back, without any demand from Johnson, until Johnson refused to receive them, or have them, positively and peremptorily. The jury returned a verdict for the plaintiff, and judgment was rendered accordingly.</p>

Writ of Error to the Circuit Court of Montgomery county. Assumpsit by Bell against Owen, for refusing to comply with a contract for the sale of land.

The prisoner was indicted, and tried for for an assault with intent to kill and murder, one David Walker. The jury found him guilty of “an assault, with intent to kill.” Upon this ver-diet, the Court rendered judgment, and sentenced the prisoner to be confined in the penitentiary for two years.

<p>Writ of Error to the County Court of Dallas.</p> <p>The facts of this case are briefly these; the defendant in error obtained a judgment against the plaintiff, an execution was duly issued thereon, and placed in the hands of Thomas O. Holloway, then sheriff of Dallas, which he failed to collect; thus he rendered himself liable, and was threatened with a rule, unless he advanced the money, or made some arrangement satisfactory to the plaintiff in execution, or his attorneys. Holloway accordingly confessed a judgment in favor of the plaintiff’s attorneys for the amount of the execution, which he has since paid over to them. One of the plaintiffs in this latter judgment, advanced to defendant in error the amount of his judgment, and was refunded by Holloway.</p> <p>It was the habit of the plaintiffs’ attorneys, to allow to sheriffs the benefit of judgments and executions on which they advanced the money that they had failed to collect; and it was the understanding in this case, that the execution was to be kept open for Holloway’s benefit.</p> <p>Holloway had ceased to be sheriff before the confession of judgment in favor of the plaintiff’s attorney, and the execution in this case subsequently issued for his benefit, according to the understanding between him and the plaintiff’s attorney.</p> <p>Upon these facts being shown, the County Court refused to quash the execution, which issued for Holloway’s benefit, and dismissed a petition upon which a supersedeas had been granted.</p> <p>insisted that a sheriff could not pay off an execution, and use it for his own benefit. [6 Porter’s Rep. 432; 4 Ala. Rep. 321.]</p> <p>contended, that the petition for the supersedeas was properly dismissed, as it was not supported by the proof. Further, the plaintiff had no agency in the arrangement with his counsel and Holloway; there was nothing unfair or oppressive in it, and it should be upheld.</p>

Writ of error to the Circuit Court of Talladega. Assumpsit by Clegge, against Woodward, P. E. Pearson and E. A. Pearson, on a promissory note. The defendants were not served with process, but on the writ is indorsed an agreement, purporting to be signed and sealed by them, waiving the necessity for service by the sheriff. The Pearsons pleaded to the declaration — • 1. Non-assumpsit. 2.

Debt, by the plaintiff in error. The declaration describes “a certain indenture of lease,” executed by the plaintiff of one part, and the defendants of the other part, of which profert is made, by which, “the plaintiff did lease and to farm let, to the defendants, a certain messuage, &c., to have and to hold for the term of one year, &c., yielding,” &c. “ And the said defendant, did then, and there, covenant, promise, and agree, to and with, the plaintiff, to pay him the…

Writ of Error to the County Court of Benton. This wasa suit instituted beforea justice of the peace, to recover thirty dollars, for work and labor performed by the plaintiff in error, for the defendant. A judgment being obtained for that sum, the defendant appealed to the County Court, where a judgment was rendered, upoñ a verdict in his favor.

<p>1. In detinue against a sheriff, for a slave seized under execution, as belonging to the defendant in execution, the latter is not a competent witness for the sheriff to prove property in himself.</p>

The indictment charged, that the prisoner, and two others, “did unlawfully, and feloniously, inveigle, steal, carry and entice away, two negro slaves, the property of Francis M. Barnett, with a view, then and there, feloniously and unlawfully, to convert the said slaves to the use of them, the said Henderson Brewer, James McKowen, and John, alias Jack Mooney.” The prisoner demurred to the indictment, and his demurrer being overruled, pleaded not guilty.

Writ of error to the Circuit Court of Talladega. This was an action of trespass, at the suit of the plaintiff in error, to recover damages of the defendant, for taking possession of the storehouse and goods of the former.

Writ of Error to the Circuit Court of Lowndes. Motion by J. and S. Crenshaw, (in whose favor there was a judgment for the use of Thomas Williamson against'Caswell Garrett, A. Gilchrist and N. Cook,) against Harrison as sheriff of Lowndes, for having failed to make the money on the execution issued the 7th November, 1844, on said judgment.

Motion by the Bank against the plaintiff in error. The notice issued against the plaintiff in error and two others, and was executed on all. A. Godbold, one of the persons notified, appeared and pleaded non est factum. The Bank moved to dismiss against Godbold, and for judgment against Beard, which was granted.

Writ of error to the Circuit Court of Shelby. On the 4th of April, 1844, a writ oí fieri facias was issued from the Circuit Court of Bibb, at the suit of the plaintiffs in error, commanding that the sum of $3,096 11 damages, besides costs, be made of the goods, &c. of James O’Hara, and James C. O’-Hara.

<p>1. An admission made by the principal maker of a note, coupled with a promise to pay, will not revive the debt so as to take it out of the bar of the statute of limitations as against a co-maker, who is his surety.</p>

<p>1. A certificate by the proper officer, indorsed upon a deed of trust, that the maker appeared before him, within the time prescribed by law, “ and acknowledged that he signed, sealed and delivered, the foregoing deed of trust, to the aforesaid W. M. M.” (the trustee,) is a sufficient acknowledgment of its execution, to authorize its registration.</p> <p>2. After a levy on property, and bond given to try the right, a junior execution cannot be levied on the same property, pending the trial. An execution issued on an elder judgment, but which has lost its lien, by the lapse of a term, will be postponed to one issued on a younger judgment, during such interval.</p> <p>3. It is improper to send the original papers to this Court, and if sent, will not be looked to, to settle any disputed question.</p> <p>4. Upon a trial of the right of properry, the fact that an execution from the Federal Court had five years before been levied on the same property, and bond given to try the right, raises no question, until it is shown that the trial is still pending, although the levy of such execution was first made.</p>

Writ of Error to the Circuit Court of Randolph. This was an action of assumpsit at the suit of the defendant in error against the plaintiff. Held: that the note was not misdescribed, and permitted the same to go in evidence to the jury. 2. An order was made by the Court, at a term previous to the trial of this cause, requiring the beneficial plaintiff to answer certain interrogatories exhibited by the defendant pursuant to the statute in such cases.

Writ of Error to the County Court of Mobile. Suit was commenced before a justice of the peace, by Moore-house against Smoot, on a due bill, made by the latter to one In-graham. Smoot removed the case to the County Court by appeal, and Easton is his surety in the appeal bond. At the trial, the due bill was produced with Ingraham’s name indorsed in blank.

The bill was filed by the plaintiff in error, and alledges that he purchased from the defendant, Gaines, a tract of land, described in the bill, and that by agreement in writing, Gaines bound himself to make to him, “good and legal title thereto, in fee simple, when the purchase money was paid.” That he has paid all the purchase money, and has been let into the possession of the land.

Writ of Error to the Circuit Court of Macon. This was an action of assumpsit, at the suit of the plaintiff in error.

Writ of Error to the Court of Chancery for the 14th District. The case made by the bill is this: Certain persons named in the bill were constituted commissioners of the town of Crawford, in Russell county, for the purpose of selling lots therein, and conveying titles to the same. Some» time in the year 1840, these commissioners sold to one McLean, a certain lot described as No. 27, and executed to him a certificate of the purchase.

This was a petition by the plaintiff in error, for leave to sell certain lands of his intestate to satisfy creditors. The heirs appeared and pleaded severally, the statute of limitations of three years to the open accounts, and of six years to the promissory notes filed as evidence. Replication of a subsequent promise by Bond, the deceased, and that he had removed, and resided beyond the jurisdiction of the Court to the time of his death. A jury was empannelled.

Writ of Error to the Circuit Court of Greene. The defendant in error declared against the plaintiffin assump-sit upon a promissory note made by the letter, on the 23d December, 1842, for the payment of $963 18, to the intestate on the 18th January next thereafter. To this the defendant pleaded — 1. That the plaintiff below was not the administrator, &c. of Margaret Kennedy, “ at the time of bringing the said suit,” as alledged in his declaration. 2.

Writ of Error to the Court of Chanceiy for the 22d District of the Middle Division. As neither the bill, answers, nor proofs are considered in the judgment of the Court, it is only necessary to state so much of the proceedings and decree as is covered by the opinion. At the July term, 1842, the cause was continued, because the Chancellor then holding the Court had been of counsel for the complainant.

Assumpsit by the defendant against the plaintiff in error. The declaration is upon a promissory note. The first count is in the usual form upon the note.

Writ of Error to the Court of Chancery sitting in Talladega. In April, 1840, the defendant in error filed his bill setting forth that on the 17th day of August, 1838, he purchased of Robert L. Lane, the east half of the north west quarter of section thirty-two, in township sixteen, range six in the Coosa Land District, for the sum of five hundred dollars, paid in hand, and received from his vendor a bond conditioned to make “ full and sufficient title” to the same.

Writ of Error to the Circuit Court of St. Clair. This action is trespass by Walker against Hampton andChe-nault for taking and carrying away certain slaves from the pos-Mission of Walker. The cause .sgcms to have been tried on the general issue, as no pleas are set'out, in the transcript.

<p>Error to the Orphans’ Court of Montgomery.</p> <p>This was a proceeding to ascertain the share of the distributees of the estate of Thos. J. Mitchell, who had been advanced in unequal proportions, by the deceased in his lifetime. The question being, whether Thomas J. Mitchell and Theacot E. Mitchell, had received certain property as an advancement, or as a gift, a jury was empannelled, who found, under the charge of the Court, 'that it was not an advancement, but a gift.</p> <p>To prove that certain property was intended by the deceased as a gift, and not as an advancement, they produced certain deeds executed by the deceased, and duly recorded, viz: one dated 27th November, 1843, conveying to Thomas J. Mitchell a negro boy, named Joe, and one of the same date to Theacot E. Mitchell, a mulatto boy named George. Also, a deed from the deceased to Thomas and Theacot jointly, dated 27th October, 1843, in consideration of a natural love and affection, certain tracts of land, which are described, including two mills, a dwelling house, all the furniture thereto belonging, and the stock of hogs, cows and mules, and the farming tools of every description, which may be on the premises, “Provided, that should the said Thomas, or Theacot, die during their minority, or without an heir, the surviving brother shall heir the whole estate of the deceased, conveyed by this deed of gift, reserving unto my wife, should she survive me, all and singular, the rights, benefits, rents, and privileges of the aforementioned premises, during the term of her natural life.”</p> <p>The value of the property thus conveyed, being in evidence, the grantees proved, that at the time of the execution of these deeds, the deceased said, the property therein mentioned, was given in addition to the portion to which they would be entitled on distribution of his estate, on account of their youth, inexperience, and want of education; and he wished them, on a division of the residue of his property, to have an equal share with the rest of his children. To the introduction of this testimony, the the other distributees excepted, but the Court overruled the objection, and the jury found, that the said property was not an advancement, but an extra gift.</p> <p>The advancement to Martha M. Griffin, daughter of the deceased, and wife of B. S. Griffin, was next submitted to the jury, and chai’ges from the books of the intestate, debiting her with the sum of $2,650, as part of her portion of the estate, was read to the jury. The administrator then proposed toread anote, in these woi’ds: “ One day after date, I promise to pay Thomas Mitchell eleven hundred and fifty dollars, value rec’d, this — day of-. Martha M. Griffin,</p> <p>By B. S. GriffiN.”</p> <p>This was offered, not as evidence of an advancement, but of an indebtedness of Mrs. Griffin to the intestate. To the introduction of this she objected, on the ground that the Orphans’ Court had no jurisdiction of the matter in controversy, and that it could not be received on this issue,- which the Court overruled, and thereupon she pleaded non est factum.</p> <p>The administrator then introduced a witness, who testified, that B. S. Griffin, was the husband of Martha, that they lived together, that he was insolvent, but that she had a separate estate. Another note was produced for fourteen dollars, signed B. S. Griffin, Martha Griffin, páyable to witness, the note, and signatures, being all in the hand writing of B. S. Griffin, and had never been paid. The witness proved that he had furnished B. S. Griffin, with some lumber, some of which was charged to Mrs. Griffin, and some to B. S. Griffin. Witness had seen him purchase groceries in Wetumpka, for which he paid cash, which were carried home in his waggon, driven by a negro man belonging to his wife.</p> <p>The administrator also produced an instrument in writing, purporting to be between Mrs. Gi’iffin and Totty & Beal, to do certain work in the town of Wetumpka, which was signed by B. S. .Griffin, as attorney of his wife, in his own handwriting. That the work was done under the superintendence of the husband. Mrs. Griffin lived a mile or two from Wetumpka. There was no proof that Mrs. Griffin knew any thing of these transactions, or ever saw either of the notes.</p> <p>This being all the evidence to prove the execution of the note, Mrs. Griffin asked the Court to exclude it from the jury, on the ground, that it was not sufficient'in law to warrant a recovery on the note. The Court overruled the objection, and suffered the testimony to go to the jury, as circumstances, from which they might infer the agency of B. S.- Griffin, for his wife, to which she excepted.</p> <p>She further moved the Court to charge, that upon this testimony, the plaintiff could not recover upon the note sued on; which the Eourt refused, and to which she also excepted.</p> <p>She further moved the Court to charge, that unless it was proved that sffie sanctioned, authorized, or knew of the acts of her husband, assuming to act as her agent, the testimony offered would not afford grounds for a recovery'in this action; which the Court refused, and charged, they were circumstances from which they might infer the agency, to which she also excepted.</p> <p>The advancements to Columbus W. Mitchell, were next submitted to the jury, and entries from the books of the intestate were read as follows:</p> <p> C. W. Mitchell, </p> <p> To Thos. Mitchell, Dr. </p> <p>1836. To your expenses at College,.$920 00</p> <p>Cash at sundry times,. 855 00</p> <p>Cash “ . 380 00</p> <p>Do. for sulky and horse. 420 00</p> <p>Do. 117 00</p> <p>1837. Cash at Springs and Tuscaloosa,. 110 00</p> <p>“ received by you of Gerald,. 425 00</p> <p>« per order to Gerald,. 800 00</p> <p>1838. “ per self,. 200 00</p> <p>1840. “ paid hire of negroes,. 205 00</p> <p>1842. “ Jesse,Minerva and Betty, negroes,. . . 1800 00</p> <p>« paid estate of J. Thrasher,. 2400 00</p> <p>$8,632 00</p> <p>Accounted for, as so much that he has received of his portion of my estate. If it is over his portion, he must pay it back to them. All of which was entered in his account book, in his hand writing, and C. Mitchell admitted that he had received the full amount charged, and more. He then offered his mother, widow of the intestate, and offered to prove by her, that many of the charges in the account, were for expenses at College, and at Montgomery reading law, and expenses whilst on a visit to the Springs, and New Orleans, whilst in his minority. Also, that his mother remonstrated with the deceased, against holding him liable, for the charges in the book, as he might have prevented his son from incurring these expenditures, which intestate admitted. And also, his declaration, in connection with these remarks, that he had made these charges, that his family might know he had made money, and what had become of it. To the admission of this testimony of Mrs. Mitchell the other distributees, except the two youngest, excepted.</p> <p>The jury returned their verdict, that John W. Mitchell had received as an advance #2,200; McMorris and wife, #2,100; B. S. Griffin and wife, #2,650, by way of advancement, and fifteen hundred and thirty dollars ninety cents, indebted to the estate ; Columbus W. Mitchell, $4,825 27; Cook and wife, $2,585. Thereupon the Court decreed, that they had received these respective sums as an advancement, and appointed commissioners to distribute the estate, giving to the widow one fifth part of the slaves.</p> <p>From this decree this writ is prosecuted, and the distributees aggrieved by the decree of the Court, now assign for error—</p> <p>1. The Court erred in permitting testimony to explain the intention of the grantor, in the conveyances to the minor heirs.</p> <p>2. In entertaining jurisdiction for the recovery of the note of Mrs. Griffin, in the testimony given, and the charges given, and refused.</p> <p>3.'In decreeing the amount of the note of Mrs Griffin, to be deducted from her portion of the estate.</p> <p>4. In decreeing the distributive portion of Mrs. Griffin to her, and her husband.</p> <p>5. In decreeing one-fifth part-of the value of the slaves to Mary Mitchell.</p> <p>6. In taxing B. S. Griffin, and wife, with the costs of the issue to determine the advancement made to Mrs. Griffin.</p> <p>■ 7. In taxing Griffin and wife, and Cook and wife, with the</p> <p>costs of the issue to determine the advancement made to the minors.</p> <p>8.‘ In the admission of the testimony of Mary Mitchell.</p> <p>9. In not taxing C. Mitchell with the costs of the issue in his -case.</p> <p>cited 7 Porter, 437; 8 Id. 17G ; 1 Camp. 43, note.</p>

<p>The petitioner was indicted for murder at the February term of the Circuit Court of Mobile, holden the present year, and upon his application, the venue was changed to the Circuit Court of Clarke, and the cause transferred accordingly. At the last tei’m of tlje Court holden for Clarke, the Solicitor was called on to say whether he was ready to proceed with the trial of the petitioner, and answered in the negative. Thereupon he moved to continue the case until the next term, and in support of his motion, read to the Court a written statement, setting forth the names of several witnesses; the most of whom had been summoned, were known to be material, but not in attendance, though it was believed their presence could be procured at the next term. This statement was not verified, nor “ required to be sworn to by the Court, or the counsel for the accused.” The petititioner’s counsel announced his readiness for trial, and opposed a continuance, but they were overruled by the Court, and the cause continued. Afterwards, on the last day of the term, “ the prisoner, at the request of his counsel, was brought into Court, when they submitted a motion to admit the prisoner to bail, in conformity with the Constitution and Laws of this State; which motion being argued by counsel, and fully considered by the Court, was refused, and the prisoner remanded to jail. But the Court, considering the questions of law ai’ising on said motion as novel and difficult, and at the request of the prisoner’s counsel, referred the same to the Supreme Court for its revision,”</p> <p>The petitioner has made known the foregoing facts to this Court by the production of the record, and prays that he may be brought up on habeas corpus ; or that such proceedings may be had as shall result in his release from imprisonment, upon entering into a recognizance with sureties ; conditioned for his appearance at the next term of the Circuit Court of Clarke.</p>

<p>Error to the Orphans’ Court of Montgomery.</p> <p>This is a proceeding in the Orphans’ Court, between a creditor of an estate and its executors, with reference to the liability of the estate, and the right of the creditor to come in for distribution. It is not stated that the proceedings are with reference to the insolvency of the estate, but this may be inferred, as otherwise the Court has no jurisdiction.</p> <p>It appears that an issue was made up and submitted to a jury, which found for the defendant. On the trial, the creditor, Latti-more, proved the existence and loss of the note sought to be established as a claim; that letters testamentary were granted about seventeen months before the estate was declared insolvent, during all which time there was no presentation of the claim. Afterwards, within six months from the time the estate was declared insolvent, but more than eighteen months from the grant of administration, the claim was filed in the clerk’s office of the Orphans’ Court of Montgomery county.</p> <p>On this evidence, the Court charged the jury, that unless the claim in question was presented to the executors, or filed with the clerk, within eighteen months after the grant of administration it was barred by the statute, and the plaintiff could not recover. This was excepted to by the plaintiff, and is now assigned as error.</p> <p>cited Clay’s Dig. 195, § 15.</p>

<p>1. To authorize a judgment, against a surety of a non-resident plaintiff for the costs of the suit, it must appear affirmatively upon the record, that the suit was commenced by a non-resident — that the person sought to he charged became surety for the costs — and the amount of the costs of the suit. No notice to the surety is necessary. ,</p>

In March, 1844, the plaintiff in error filed his bill, setting forth that in February, 1841, he sold.to Matthew R. Glenn, two slaves, to-wit, Henny, a woman, and Jacob, her child, for the sum of seven hundred dollars ; to secure the payment of which, the purchaser, at the time of the sale, made his two promissory notes, one for #400, and the other for #300, payable to the plaintiff, on the 15th August next thereafter; and a mortgage, bearing even date therewith was executed…

Writ of Error to the Court of Chancery for the 19th District. The case made by the bill is this: In August, 1842, Drew purchased from Hayne a horse, under the agreement that he should be allowed to return him within three months, if he went lame of a certain defect, or failed in riding; in which events Hayne was to take the horse back and return the note given for it. On this contract, Drew executed his note for f 125, with one Wm. B. Goodgame as surety.

MotioN by H. Stickney, treasurer of Mobile county, against the defendant in error, sheriff, assessor, and collector of taxes for the year 1842, for five thousand three hundred and five dollars and twenty-eight cents, balance due by him for taxes collected that year. The Court rendered- judgment against him for two thousand one hundred and thirty-four dollars and thirty-three cents, from which the treasurer appealed to this Court.

Writ of Error to the Circuit Court of Macon. .The defendant in error declared against the plaintiff, in debt, setting forth that on the 23d September, 1833, he commenced an action, &c., against Peter Robertson, and on the 31st of October, 1834, the defendant in that action prayed for and obtained an injunction against the further prosecution of the same, upon executing a bond to the plaintiff, in the penal sum of one thousand dollars, conditioned to pay him “all damages…

Writ of Error to the County Court of Mobile. The writ of error in this case is sued out by several of the creditors of the estate of James M. Ashton, whose claims were rejected by the Court, upon the final settlement of that estate as an insolvent estate. Albert Mudge presented for allowance, a judgment obtained by him in the Circuit Court against James M. Ashton, in his life time.

This was a proceeding upon the estate of Audley Hamilton, deceased. A will being offered for probate by Jane Hamilton, the widow, on the 4th April, 1838, the Court directed a citation to issue to James T. Bothwell and Ellen his wife, to show cause against it.

Writ of Error to the County Court of Sumter. This was an action of debt, at the suit of the defendant in error against the plaintiff. The declaration contains five counts; the first alledges, that the defendant, together with John Hud-dleston, (as to whom the suit is discontinued,) and Isaac Smith, deceased, by his bond bearing date of the 7th of March, 1838, bound himself to pay the plaintiff the sum of six hundred and eighteen dollars and forty two cents, on demand.

The case made by the bill is this : Certain executions had been levied on slaves as the property of Warner Washington, a citizen of Cherokee county, which were claimed by William Garrett, jr., as trustee for Arianna Washington, the wife of Warner Washington; and this claimant, on the 9th August, 1841, gave the claim bonds required by law, to which he procured Hughes and McCluny, the complainants, to execute as his sureties.

Assumpsit by the plaintiffs, against the defendants in error, for money had and received, &c. The declaration contains the common counts. The defendant, Morrow, pleaded the general issue, and pleas of set off, failure, and want of consideration, and a judgment by default was taken, against Cameron & Likens, the other defendants.

In this case the transcript of a record of the Circuit Court of Macon has been presented, showing that since the commencement of the present term, a writ-of error was sued out by Reuben Kelly, to revise a judgment recovered at the term of that Court holden in the spring of this year, by Isabella Renfro, by her next friend, &c. It appears that the writ is returnable to January, 1846, that bond with surety has been executed for the successful prosecution of the same, and that…

<p>Writ of error to the Circuit Court of Lowndes.</p> <p>This suit was commenced by Taylor, against Acre, and the process is an attachment, returnable before a justice of the peace. Taylor had judgment, and Acre appealed to the Circuit Court, where he filed a statement in the name of S. A. McMeans, for his use, declaring on a promissory note for $25, dated 8th January, 1838, payable to S. A. McMeans or bearer.- This statement was stricken from the file on motion of the defendant, on the ground that it made a change of parties. The plaintiff then filed a statement containing the common counts, and under this offered in evidence the same promissory note which is described in the statement stricken out. This was excluded by the Court, the plaintiff not proposing to offer any evidence of the defendant having promised to pay the same.</p> <p>The plaintiff excepted to these several rulings, and they are now assigned as error.</p> <p>argued, that the course pursued was the only one open to the plaintiff. He could not properly swear the defendant was indebted to McMeans, when he himself held the evidence that the debt was transferred. Being entitled to commence his suit by attachment, some means must be provided to declare in such a suit, and here the only two proper have been pursued. The introduction of McMeans as a party was a formal matter which the Court should have allowed ; or if this cannot be allowed, then the evidence of the note should have been let in under the common counts. [Gillespie v. Wesson, 7 Porter, 459.]</p>

TRESPASS m et armis, by the defendant against the plaintiff in error, for injury done to the crop of plaintiff, by the cattle of the defendant. The parties went to trial before the jury, upon the plea of not guilty.

<p>1. The testator bequeathed by his will to his children who were married, or had attained their majority, property estimated at $1,190; the same amount to his younger children “in negro property,” when they became of age; and tb his younger daughters the same amount, in the samé description of property, when they became eighteen years of age, or married. After which the following clause was added: “ It is my will, that all the property that is not willed to my children, viz: negroes, lands, stock of all lands, farming utensils, household and kitchen furniture, or all of my remaining effects that is now in my possession, I give unto my wife, E. S. during hef natural life, or widowhood, and at her death or intermarriage, then all the property willed to her, to be sold, and equally divided amongst my above named children. E. S. intermarried with T. G., and eighteen months from the grant of letters testamentary having expired, the husband of one the testator’s daughters, presented his petition to the Orphans’ Court, praying that a rule be made upon the executor, requiring him to sell and distribute that portion of the testator’s estate, which was bequeathed to E. S¡ during her life or widowhood: Held, that the estate in the hands of the executor above what was necessary to provide for the legacies was subject to distribution* if the demands of the creditors have been satisfied, or after retaining enough for the payment of debts; the terms of the decree should be such as will most certainly effectuate the intentions of the testator, and give to the children equal portions.</p>

<p>Writ of Error to the Court of Chancery for the 1st District.</p> <p>The case made by this bill is as follows:</p> <p>Woodward, the complainant, asserts that Secor. & Brooks, for the use of Huntington and Lyon, had recovered a judgment against him in the Circuit Court of Mobile county. That the writ in that suit was sued out against him and one Taylor, as partners, and the cause of action is stated .thereon as an open account. The writ, as to the complainant, was returned, not found, but was not executed upon Taylor. At the time of suing out this writ, no copartnership existed between Woodward and Taylor, and one which had previously existed, had been dissolved, and notice of the dissolution published, which was known to the defendants, or some one of them. The first notice which the complainant had of the judgment, was a demand by the sheriff, upon an execution issued on it.</p> <p>The bill prays an injunction, and makes the parties previously named, defendants ; as also, Harris, the assignee in bankruptcy of Secor & Brooks.</p> <p>No answer was put in by any of the defendants, but they appeared by counsel, and moved to dismiss the bill for want of equity. After a pro confesso decree, they again, at the hearing, urged the same matter, but a decree was rendered perpetually in-joining the plaintiffs at law from proceeding on their judgment.</p> <p>This is assigned as error.</p>

<p>Writ of Error to the County Court of Sumter.</p> <p>Assumpsit by the defendant in error against the plaintiff, on a promissory note of the fobowing tenor;</p> <p>$140. On the first day of January next, I promise to pay Avery & Speed, one hundred and forty dollars, for value rec’d. 1 April, 1841. To be paid for when started.</p> <p>Geo. LockimRd.</p> <p>The declaration is in the usual form upon the note, as a debt due the 1st January, 1842. Pleas, general issue, and failure of consideration.</p> <p>By a bill of exceptions, it appears, that testimony was introduced tending to prove, that the note sued upon was given for a cotton gin, of Avery & Speed’s manufacture, and that the note was given upon the condition, to be paid for when the gin was started, or set at work, and that if it did not perform well, a good gin was to be put in its place, and that this was the purpose for which the memorandum was placed upon the note. It was also proved by a witness, that his farm joined that of the 'defendant, that he did not know, or believe, that defendant had any gin running upon his plantation up to the time this suit was brought.</p> <p>Upon this testimony, the defendant moved the Court to charge, that if the testimony was believed by them, the note was variant from that described in the declaration, and the plaintiff could not recover in this action, which motion the Court refused, and the defendant excepted — which is the matter now assigned as error.</p> <p>submitted the cause.</p>

Writ of Error to the Circuit Court of Chambers. This was an action of assumpsit, at the suit of the plaintiff in error, against the defendants, who are charged as partners in running the Defiance line of stages, under the name and style of W. W. Snow & Co. The declaration alledges that the defend-* ants are indebted to the plaintiff in the sum of one hundred and thirty-three dollars and twenty-eight cents for keeping and feeding stage horses belonging to the defendants, and…

Writ of Error to the County Court of Mobile. The writ is at the suit of Hall against Elliott, and requires the latter to appear and answer to the plaintiff in a plea of trespass. The endorsement upon the writ is, that the action is brought to recover damages done by the defendant to the plaintiff by removing locks and portions of locks from the doors, and otherwise injuring the plaintiff’s house.

The declaration contains fourteen counts. The first count, after the formal introduction, proceeds to alledge, that a certain matter was pending before the Register of DeKalb county, who was duly authorized to act in the premises, and try said matters of controversy, when James L. Lewis, by virtue of the pre-emption laws of the United States, passed in the year 1838, was claimant of a certain quarter section of land lying in the district attached to said land office, and a…

Appoal from the County Court ofMobile. This was a proceeding instituted before the Mayor of thg city, at the suit of the plaintiff in error against the defendant, for the recovery of the sum of $59,the amount prescribed by an ordinance of the corporation for selling “ drink, wine and spirituous liquors,” within the limits of the same, without license.

<p>1. The Circuit Court has no original jurisdiction of a summary proceeding by motion against a constable for failing to reton an execution. The statute only authorizes the motion to be made before the justice of the peace issuing the execution.</p>

<p>Error to the County Court of Dallas.</p> <p>Assumpsit by the defendants, against the plaintiff in error, upon a note, and also an open account.</p> <p>Upon the trial it appeared, that the plaintiff, to establish two open accounts, introduced as a witness their principal clerk, during the year 1842 and 1843, when the accounts were alledged to have been contracted, amounting in all to one hundred and seven dollars ; who proved that in the early part of the year 1842, the defendant instructed him not to sell, or charge to him any article whatsoever, unless purchased by himself or wife, of upon their written order’. It did not appear that further instructious were given, or that these were communicated to the other clerks, or the principals of the house. That defendant acted capriciously, sometimes instructing not to trade with his wife, and at other times sanctioning purchases made without his order. The witness then testified to the amount of twenty-five dollars, seventy-two cents, for goods sold to Grant and wife, and upon their-orders, and also testified that ten dollars twenty-five cents of the account was in the hand writing of a deceased clerk, who he believed was accurate and correct in his entries, but knew nothing of the facts to whom the goods were furnished.</p> <p>The plaintiffs then proved by another clerk, the sale of other articles charged in the account, bought by Grant himself, amounting to thirty-one dollars and sixty-seven cents. They further proved by the overseer of the defendant, that he had purchased an auger and file, charged in the account, and carried them to the plantation, but could not say whether defendant had any knowledge of it. The plaintiff then proposed to offer the accounts to the jury, as evidence, which the Court, against the objections of defendant’s counsel, permitted to go in evidence, subject to the charge to be given; to which the defendant excepted.</p> <p>The defendant moved the Court to charge the jury, that the plaintiffs could not recover more than they had proved they had sold to Grant and wife, in person, or to their order; which the Court refused, and charged the jury, that the instruction of the defendant to the clerk, was not notice to the plaintiffs, unless it was proved they were communicated to them ; and that if they believed from the testimony, that articles were sold by the-other clerks, or by the plaintiffs, and carried on the plantation, or came to the possession of himself and family, 'and thus used, and appropriated for their benefit, that the defendant was properly chargeable with them. In reference to the accounts, the Court charged, that the .items not proved by positive, might be established by circumstantial testimony, such as the wants' of the family; that defendant traded considerably with plaintiff, and was frequently in their store; the correctness, and accuracy of the plaintiffs and their clerks as accountants, and their practice of making entries on their day books immediately for all articles sold, but that such circumstances were entitled to but little weight, unless the articles were of the kind and description necessary for the defendant, about his plantation, and in his family. To which the defendant excepted, and which he now assigns as error.</p>

Writ of Error to the Circuit Court of Mobile. This was an action of assumpsit at the suit oí the plaintiff in error. The declaration contains the common counts; in the first of which it is stated that the work and labor done by the plaintiff was in the erection of a dwelling house in the city of Mobile, “ executed under a contract between the said defendant and one Jas.

Writ of Error to the County Court of Mobile. Thomas, on the 25th January, 1845, sued process of monition and seizure upon a libel filed by him against the steamboat Du-quesne, alledging that the boat then was lying at the harbor of Mobile; that he, at the instance of the master of the said boat, performed services on board the same as second engineer, at $50 per month, in all amounting to $169, the particulars and items of which appear by an account filed.

<p>1. The sheriff, by order of the attorney of the plaintiff, returned an execution by mistake a week too soon, and an alias was not issued, until after an exeontion of a junior judgment creditor, had been issued, and levied' on the property of the defendant. Held, that as it did not appear, that the execution was returned, or its re-issuance delayed, for the purpose of favoring the defendant in execution, and as a term had not elapsed, between the return, and the issuance of the alias, the prior execution had not lost its lien.</p>

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

<p>1. A promise to pay a sum of money in Alabama bank or branch notes, is'a promise to pay in notes of the Bank of the State of Alabama or its branches, and it is proper for a Court to charge a jury that such is the proper construction, without evidence of the meaning of the terms used.</p>

Writ of Error to the Orphans’ Court of Lawrence. Application by the defendant in error, for probate of the will of Alexander Bowling. The will being contested upon the allegation that the testator was not of disposing mind and memory, an issue was made up to try the fact, and submitted to a jury.

Writ of Error to the Circuit Court of Dallas. This was an action of debt, at the suit of the plaintiff in error against defendant, on a bond dated the 29th March, 1842, in the penal sum of seven thousand seven hundred and twenty-six dollars, executed by Elias Parkmnn as principal, and the defendant, together with Philip J. Weaver as his sureties, and payable to Caleb Tait, for the use of Edward W. Marks; conditioned, that Parkman, a prisoner in the jail' of Dallas county, at…

<p>Writ of Error to the County Court of Dallas.</p> <p>Assumpsit by Molett against Norman, to recover #200 and interest agreed to be paid for certain lands.</p> <p>At the trial, the plaintiff offered in support of his action, a writing in these words, to wit: “ I have bargained and sold to Bentley Norman, a piece of land to contain five acres ; said piece of land to be laid off in the north-east corner of,” &c.; here follows a minute description of the lands, and the writing then proceeds thus : « That lot shall be among the first surveys that I will have executed; immediately after which I will be ready to take a promissory no1e of said Norman, for two hundred dollars, with interest from this date, payable 1st January, 1839, and to give him my bond for titles, to be made when the note shall be fully paid. December 1st, 1836. This is signed by the plaintiff, and on the back is written an indorsement, in the hand-writing of the defendant, in these words, to wit: “ Warrenton, Dallas county, August 12,1840. For value received, I assign all my right, title, claim and interest to the within described land, to Wm. DeC. Young-blood. J. B. Norman.”</p> <p>The question was, whether this was a sufficient signing within the statute of frauds, and the Court instructed the jury that it was. The defendant asked the Court to instruct the jury, that they ought not to find for the plaintiff, unless there was a contract, or memorandum of it, in writing, signed by Norman, and further, that there was no such contract, or memorandum in evidence.</p> <p>The defendant excepted to the ruling of the Court, and the same question is presented here by the assignment of error.</p> <p>insisted, the indorsement of the agreement to another person, -yras not sufficient to take the case out of the statute. [Dig. 207, § 1; 14 John. 489.] In this State, the construction of the statute is more strict than in England, and our decisions go far to restore the statute to its original and intended effect. [2 Stewart, 24; Mooney v. Read, J une Term, 1842.</p> <p>cited Shipley v. Derrison, 5 Esp. 191; 2 Stark. Ev. 605; Gale v. Nixon, 6 Cowen, 445; 2 Leigh N. P. 1044; Steph. N. P. 1954; 3 Atky. 503; 20 John. 340; 14 lb. 210; 16 Wend. 460.</p>

<p>Error to the Circuit Court of St. Clair.</p> <p>This was a warrant, by the plaintiff in error, before a justice of the peace, for the value of a cow, killed by the defendant in error. Upon the trial before the justice, the parties by a verbal agreement, left the matter in dispute to the arbitration of three persons, who being sworn, and having heard the evidence, made their award in writing,, and assessed the plaintiff’s damages to eleven dollars, which was entered up by the justice as the judgment in the. case; from which the defendant appealed to the Circuit Court. Upon the trial in that Court, the plaintiff again proved, and relied on the award, as conclusive. This the Court overruled, and proceeded to the trial of the cause de novo, and evidence being introduced tending to prove, that the defendants were not guilty of the trespass, he rendered a judgment for the defendants, from which the plaintiff in error prosecutes a writ of error to this Court.</p> <p>contended, that the award, unless impeached for fraud, or some improper conduct of the arbitrators, was conclusive of the rights of the parties, and cited 2 Stew. 130; 4 Porter, 65 ; 1 Ala. Rep. 184,278 ; 6 Cowan, 399; 14 John. 96; 1 Caines, 304; 15 John, 197, 497; 17 Wend.410; 3 Caine, 166 ; 1 Litt. 322; Litt. S. C. 264; 4 Monroe, 47, 247; 3 John. 367.</p>

Writ of error to the Circuit Court of Monroe. An execution was issued by a justice of the peace, at the suit of the defendant in error against the goods and chattels of the plaintiff, Alford, and levied on a female slave, which Alford made affidavit was not his property, but that Henry D. Whippel was her owner.

Writ of Error to the Orphans’ Court of Lowndes. The transcript of the record .of this cause contains the entire proceedings in relation to the estate of Alex. Abercrombie, from the grant of administration to its final settlement. So much as is necessary to the correct understanding of the errors assigned here, will be recited.

<p>Error to the Circuit Court of Dallas.</p> <p>This action was brought by the plaintiff in error, against the defendant, as late partner and joint owner, with three other persons, of the steamboat North Star, upon a due bill of the clerk of the boat, to the plaintiff, as pilot of the boat, for $933 50.</p> <p>Upon the trial, as appears from the bill of exceptions, there was evidence that plaintiff’s intestate regarded Abram Powell, and Eldridge Gardner, alone as the owners of the steamboat North Star, until after their insolvency, and that he had contracted with them, on their credit and responsibility alone. There was evidence that Hudson Powell, the defendant, had held himself out to the public as an owner, by calling the boat his, and contracting for supplies, &c. for her. Under this testimony the Court charged the jury, that if the plaintiff looked on Abram Powell, and Eldridge Gardner, alone as the owners, and contract, ed on their credit and responsibility alone, he could not hold Hudson Powell liable, if not actually an owner, although he might have held himself out to the world as an owner, and was thereby made liable to other third persons, who might have contracted on his credit; to which charge the plaintiff excepted.</p> <p>The charge of the Court is now assigned as error.</p> <p>cited Story on Partnership, 95, 97; W atson on Part. 5 ; Cary on P. 45.</p> <p>cited, 1 Camp. 404, Chitty on Con. 70, 243; 10 East, 264 ; 11 Wend. 87; Story on Part. 98; Collyer on P. 44,214; 8 Car.'IpP. 202; 4 N. Car. R. 127; 1 JoJjn.Cas. 171; 6 Pick. 372; l&Mass. 339.</p>

<p>Writ of Error to the County Court of Dallas.</p> <p>The defendant in error moves to strike the bill of exceptions from the record, on the ground that it was signed and sealed by the presiding judge after he had adjourned his Court for the term. The facts are substantially these, viz: Certain questions were reserved at the trial, and a bill, of exceptions was drawn up by the defendant’s counsel, and handed to the judge during the term; as usual in such cases, the judge gave it to the plaintiff’s counsel, who then, or not long afterwards, requested that time might be allowed for examining and noting objections to the bill. Thereupon the defendant’s counsel expressed a wish to.be present when the bill was being examined and passed upon, and asked that a day might be fixed 'for that purpose. The docket was exceedingly heavy, and being satisfied that the bill could not conveniently be examined during the term, in compliance with the request of the defendant’s counsel, a day was appointed, exceeding a week from the adjournment of the court. This arrangement, it was understood, was verbally assented to, by the counsel on both sides. Accordingly, on the day appointed, the judge was furnished the notes of objections, alterations and additions of the plaintiff’s counsel, and with the aid of the suggestions of the counsel of the respective parties; prepared and signed the bill now found in -the record. When the bill was signed, the presiding judge had no intimation that the act of 20th December, 1844, which prohibits the allowance and signing of bills of exception in vacation had passed, nor is there reason to believe that the counsel on either side were aware of the existence of the act.</p>

<p>1. It is no sufficient ground to dismiss a certiorari cause, that the petition was verified before the clerk of tho Court instead of some officer authorised to administer an oath.</p>

Covenant broken by the defendant in error, against the plaintiff, upon a covenant executed by the defendant, with the testator of the plaintiff, for the lease of certain lands, and the delivery, on the 1st January, 1841, of certain articles therein mentioned.

Writ of Error to the Circuit Court of Mobile. This was an action of ejectment, for the recovery of certain lots of land situated in the city of Mobile. The defendant entered into the usual consent rule, and the cause was tried on the plea of “ not guiltythe jury returned a verdict for the defendant, and judgment was rendered accordingly.

Writ of error to the Circuit Court of Sumter. Brow'nrigg & Tartt sued out ail attachment against one Hodges, returnable to the fall term of the Circuit Court for the year 1839. The return is, thatno property was found, but Enoch Travis w'as summoned as a garnishee.

Motion by the Bank against the plaintiffs in error. Plea, that the defendants were sureties of one C. Hooks, -who has departed this life; that administration has been granted on his estate, but that the administrator was not notified of the existence of the debt, by which the estate has been discharged from its payment. To this plea the Bank demurred, and the Court sustained the demurrer, and rendered judgment for the Bank, from which this writ is prosecuted.

<p>1. The doctrine of contribution does not apply as between accommodation indorsers; consequently, in tire absence of an express or implied agreement changing the liability of indorsers inter se, they are bound to pay in the order in which their names appear on the paper.</p> <p>2. In an action of assumpsit, at the suit of a subsequent against a prior indor-ser, to authorise the admission of the note as evidence, it is sufficient to prove the signature of the maker and the defendant; and the recital in a joint judgment rendered upon the note at the suit of a Bank against the defendant, the plaintiff and maker, are evidence in such an action to charge the defendant. '</p> <p>3. In an action by a prior against a subsequent indorser, who has been compelled to pay the note, a declaration which alledges the making of the note, its indorsement, protest for non-payment, and notice to the defendant, and thence deduces his liability, if sustained by proof, entitles the plaintiff to recover; especially if a count is added for money paid, laid out and expended.</p>

Writ of Error to the County Court of Dale. Motion by Hawley against Allums, as sheriff of Dale county, and certain persons as his securities in office, for failing to return a writ of fi. fa. issued from the County Court of Dale county, in favor of Hawley, against certain persons named in the motion.

<p>Error to the Circuit Court of Dallas.</p> <p>Assumpsit by the defendant against the plaintiff in error, to recover fifty dollars, being the ninth instalment due on his subscription for stock.</p> <p>The declaration consisted of three special, and the common counts. The defendant demurred separately to the three special counts, which was overruled by the Court, except as to the third, and leave given to the defendant to plead over, after which the plaintiff entered a nolle prosequi to the first count, and relied alone upon the second count, and the common counts.</p> <p>Upon the trial, as appears from a bill of exceptions, the plaintiff proceeded to prove from the books of the company, its organization under its charter. The Court permitted the plaintiff to prove, from the books, the following facts — that the books of subscription contained the name of the defendant, and many other persons signed to an instrument to the following effect: “ A book of subscription to the capital stock of the Cahawba and Marion Rail Road Company, opened on the 20th March, 1837, by an order of the board of directors, assembled in the town of Cahaw-ba, on the 17th March, 1837, under the direction of James E. Craig,” &c. &c. The names are signed thus :</p> <p>DATE. 1 NAMES. NUMBER OE SHARES.</p> <p>March29. ] Matt. Gayle. 10. . .Total stock, $1,000</p> <p>The plaintiff having averred as its cause of action, and the sole object of the suit, to recover an assessment of five per cent. made by the directors, being the ninth instalment, and having offered a resolution to that effect, it was objected to by the defendant as testimony, under the second count, on account of a discrepancy in the dates, but the Court overruled the objection, and permitted the testimony to go to the jury. But afterwards the Court, with the consent of the plaintiff, excluded all the written evidence which had been offered, including the entries from the books of the company, from the consideration of the jury, so far as related to the second count.</p> <p>It was further in evidence, that the account, or demand sued for, as aforesaid, had been presented to the defendant, who refused to pay — also, that the account against the defendant for all the other assessments made by the board, some of earlier, and some of later date to said ninth instalment, had been presented to said defendant, but which in like manner he refused to pay. There was evidence conducing to show, that the other in-stalments had been transferred to creditors of the company.</p> <p>Upon this testimony, the defendant moved the Court to instruct the jury, that on the above evidence the plaintiff was not entitled to recover on the common counts, which instructions the Court refused, holding that such recovery might be had on the common counts. To all which the defendant excepted, and which he now assigns as error.</p> <p>contended that the charge of the Court was wrong, as there was no proof in the record, that the defendant signed the book of subscription, or that he had notice of the assessment.</p>

Writ of Error to, the County Court of Tuskaloosa. This was a proceeding by notice and motion, under the statute, at the suit of the defendant in error, against the plaintiff, as the indorser of a bill of exchange. The cause was tried on issues joined, on the pleas of non assumpsit, payment, and set off; a verdict was returned for the plaintiff, for five hundred and seventy dollars and twenty-five cents, damages, and judgment was rendered accordingly.

Writ of Error to the Circuit Court of Montgomery county. This proceeding is on behalf of the distributees of Sankey against his executors, to compel a distribution of the assets of his estate. The cause was here at a .former term, [see G Ala.

<p>1. Under the 4th rule of Chancery practice, it is not necessary to serve a subficona upon a married woman, unless she has a separate estate. It will he sufficient if served upon her husband.</p> <p>2. An allegation that the mortgagor had failed to pay a promissory note, whereby the legal estate had become absolute, is a sufficient allegation that the debt was not paid, although there were other parties to the note.</p>

. Writ of Error to the Circuit Court of Greene. This was an action of trespass, brought by the plaintiffin error to try title to certain lands particularly described in the indorsement on the writ and declaration, as well as to recover damages of the defendant for the occupancy of the same. The cause was tried on issue joined, a verdict returned for the defendant, and judgment rendered accordingly. • On the trial the plaintiff excepted to the ruling of the Court.

<p>1. In debt upon an attachment bond, the declaration should show that the attachment was wrongfully or voxatiously sued out, and that thereby the obligee has sustained damages.</p>

Motion by the defendant in error, against the plaintiff in error, as sheriff, and also against his sureties, for failing to return afierifacias..

<p>Writ of Error to the County Court of Talladega.</p> <p>This was an action on the case, at the suit of the defendant in error, to recover damages of the plaintiff, for the failure to levy an attachment placed in his hands, as sheriff, on the 27th of October, 1841, in favor of the former,'against the estate of Shelton Kenncrly, on a sufficiency of property to satisfy the same. [See this case when previously here, reported in 6 Ala. Rep. 148.] The cause was tried on the general issue, and other pleas, a verdict was returned in favor of the plaintiff for $92 SO, and judgment rendered accordingly.</p> <p>On the trial, the defendant excepted to the ruling of the Court. It was shown by the attachment and by other proof, that it was levied on a horse, as the property of the defendant in attachment, which was proved by one witness to be worth seventy-five dollars, at the time of the levy, and by another to be worth one hundred dollars. The attachment was for $86 07 1-2, issued about three months previous to the trial term of the cause to which it was ancillary, and at which the judgment was obtained. Soon after the rendition, of the judgment, a venditioni exponas issued, under which the horse that had been levied on was sold for the sum of forty dollars ; of that sum the plaintiff,received but ten dollars, the residue being appropriated to the payment of the costs.</p> <p>Upon these facts, the Court charged the jury, that in estimating the value of the horse levied on, they could look to the price at which he was sold, as well as the other evidence; and that the evidence of the witnesses as to the value was not conclusive. The defendant’s counsel then prayed the Court to charge the jury —1. If the defendant was guilty of the neglect charged in the declaration, the measure of the damages was not the difference between the ten dollars which the plaintiff received from the sale of the horse, and the plaintiff’s demand sought to be recovered. 2. That the defendant could not be made liable for more than the difference between the value of the horse at the time of the levy, and the amount for which he was required to attach Kennedy’s estate. These several charges were refused.</p> <p>insisted that the first charge was erroneous, because the inquiry was not as.to the value of the horse some three or four months after the levy, (and perhaps longer,) when he was sold; and because it makes the sheriff an insurer, that the value of the horse would not depreciate between the levy and .sale. The charges refused were obviously proper, and should have been given.</p> <p>The witness who testified to the value of the horse did not speak in reference to a public sale for cash, although the law requires the sheriff thus to dispose of property levied on by him. It was proper for the jury to look at all the facts in coming to a conclusion on this point.</p> <p>The first charge prayed is a mere negative, without furnishing any rule for ascertaining the damages, and should not have been given. The second was properly refused, because there was no proof of the value of the horse at a public sale for cash. The witnesses doubtless had reference to sales made upon negotiations in the ordinary way, between seller and purchaser.</p>

Writ of Error to the County Court of Dallas. Assumpsit by Andrews & Co. against Riggs, as the indorser of a promissory note, which, in the indorsement on the writ, is thus set out: “ Mobile, 28th April, 1841. Three years after date, we promise to pay to Daniel M. Riggs, Esq. or order, six hundred and eighty-two 1G-10Q dollars, value received, negotiable and payable at the Bank of Mobile. “ Gayle & Bower, in liquidation, By Wm.

The bill was filed by the plaintiff in error, to sell land jointly gyyüád by the parties, and for an account of profits in a previous transaction, as partners. The only question made in this Court, atriles out of a claim for the profits, or use of a sum of money belonging to the partnership, which it is alledged the defendant in error retained in his hands, and used for several years.

Writ of Error to the County Court of Dallas. This was an action of assumpsit at the suit of the plaintiff in error, upon a writing subscribed by the defendant, of the following tenor, viz: “$6Q in shucks.

The case made by the bill, independent of much extraneous matter, is this: Peletiah Chilton, Rezin R. Chilton and Asahel Chilton were indebted to Julia Harding,who has since intermarried with Hendricks, when a minor, by several notes. Attachménts upon these notes were sued out in the name of one Parke, the guardian of Miss Harding, and levied on certain slaves and other effects, which are charged to be the property ofR. R. Chilton.

Thial of the right of property, upon a claim interposed by the plaintiff in error, as trustee in a deed of assignment executed by Bissell & Carvill, an execution at the instance of the defendants in error, having been levied upon some of the property conveyed in the deed.

Writ of Error to the Circuit Court of Macon. This was an action of detinue, at the suit of the plaintiffs, for the recovery of a female slave named Louisa, and her son George, the former aged about twenty-five, and the latter about five years of age. The cause was tried upon the general issue, a verdict was returned for the defendant, and judgment rendered accordingly. The plaintiffs claimed the slaves in question under their grandfather, Edmund Hobdy.

Writ of Error to the Orphans’ Court of Greene. This proceeding was commenced by Joseph Carnes, as the administrator of William B. Carnes, against George G. Snedieor as the administrator of James Snedieor, who in his life-time was the guardian, appointed by the same Court, of said William B. Carnes ; and was instituted to compel the administrator of Sned-icor to pay over the money due by Snedieor to his ward at the time of his death, which happened about four months before he…

The defendant in error commenced a suit by attachment, against John McBride, for fifty dollars, before a justice of the peace, as an absconding debtor, which was levied on a waggon. The waggon was claimed by Joshua Seamans, who gave bond to try the right. A trial was had before the justice, and verdict and judgment that the property was subject to the levy.

Writ of Error to the Orphans’ Court of Randolph. The facts in this case as shown by the record are as follows: On the 27th December, 1842, Sarah Treadwell applied for letters of guardianship of the estate of Stephen Treadwell, a lunatic, which were granted upon her entering into a bond with sureties, as required by law in such cases; and on the 3d January, 1843, filed in the Orphans’ Court a return of the notes and accounts of the lunatic, which being stated and examined,…

Writ of error to the Circuit Court of St. Clair. At the spring term for the year 1845, J. C. was tried upon an indictment for grand larceny, found at the spring term 1843, and acquitted. After the acquittal, on motion of the Attorney General, the Court taxed Tuck, who, as the entry asserts, was the prosecutor in the case, with the costs, the prosecution appearing to the Court to be frivolous and malicious.

of Mobile. Scire facias by the defendant in error, to subject the plaintiffs in error, as executors of one Young, to satisfaction of a judgment, as the bail of one JohnT. Burton. Pleas nul tiel record, and a special plea, that the ca. sa. which issued against Burton, and was returned non est inventus, was issued without the affidavit being made, which the act of 1839 requires.

Writ of Error to the Court of Chancery sitting at Montgomery. The plaintiffs in error filed their bill, setting forth that on or aboutthe first of March, 1838, the complainant, Pond, purchased of Robert Harwell a certain lot situate in the city of Montgomery, the number, size and location of which are particularly described.

Writ of Error to the Circuit Court of Sumter. The judgment in this cause, when it was here at a former term upon a writ of error sued out by McRae, was reversed because the Circuit Court should have remanded the proceedings to the Justices Court, in order that the complaint might be amended there, instead of dismissing it in the Circuit Court, as was its judgment. [See 6 Ala.

Writ of Error to the Circuit Court of Randolph. Motion by the defendant in error, against the plaintiff in error, as sheriff of Randolph county, and his sureties.

Writ of Error to the Court of Chancery sitting in Lowndes county. The complainants, Benjamin Reynolds and Sally his wife, Wiley Turner and Frances his wife, Thomas W. Turner and Harriett his wife, alledge, that in right of their respective wives, they are distributees and heirs of James Mosely, deceased.

<p>Writ of Error , to the Circuit Court of Wilcox.</p> <p>This was a motion by Burnett, as sheriff of Wilcox county, against Handley; and its object is to obtain the judgment of the Court with reference to the appropriation of money between certain execution creditors. The motion, by consent of parties, was heard and determined by the Judge, without the intervention of a jury, upon the following state of facts, to wit:</p> <p>Handley obtained judgment against one Joseph B. Dossey, at the fall term, 1842; his execution issued on'the 5th of December, 1842, and the same day was levied on a slave named George, as Dossey’s property. Thereupon the sheriff demanded a bond of indemnity from Handley, which was executed. Afterwards, this slave was claimed by William Dossey, and a bond given to try the right of property. At the fall term, 1843, the slave was held liable to satisfy this execution, and his value assessed at $550, which sum was thereupon paid by the claimant to the attorney of Handley, who now holds the same, subject to the direction of the Court, with respect to its application.</p> <p>On the same day when the sheriff levied Handley’s execution, he also levied upon the same slave three others, one in favor of Francis Bettis, against the said Dossey and James H. Mcllvain ; one in favor of Wm. T. Matthews against Dossey and David Mandeville, and one in favor of the same plaintiff against Dossey, Wm. F. Daniel and JohnD. Caldwell. These executions were received by the sheriff on the 22d of August, 1842. There was no proof that any indemnity bond was executed by the plaintiffs in those three cases, or that any indemnity was demanded. It was Í roved that in the case of Bettis, the money had been paid to is attorney by Burnett the sheriff. It was proved by Matthews, the plaintiffin the two other cases, that the sheriff, Burnett, paid to him the sum of four hundred dollars, and it appeared from the executions, that sum was more than sufficient to satisfy both. At the time the sheriff paid this sum, he was called on to do so by Matthews, and the money was paid at the sheriff’s office, and at, and immediately before the payment, the executions were in his hands. Matthews did not receipt to the sheriff for the money in the cases, nor did he assign them to the sheriff, but it was understood and considered by him, when he received the money, that it was received on those executions.</p> <p>The Court, upon this evidence, considered Handley as entitled to have the money applied to the discharge of his execution, and so ordered. To this decision Burnett excepted, and insisted upon the application of the money to the discharge of the other.executions.</p> <p>The judgment of the Circuit Court upon this matter is assigned as error.</p> <p>insisted that the execution of the indemnity bond by Handley, gave him no superior rights to the slave, unless the other plaintiffs had refused, upon request made, to indemnify also. Here the sheriff may have become liable, and a third party cannot be allowed to show the payment by him, as the ground for acquiring the exclusive right to the money realized from the sale.</p>

This proceeding was a motion by Moses McLemore, adm’r, for distribution of two slaves among the distributees of his intestate, William… Held: that the two slaves were to be equally divided between the two snrviving children of William McLemore, and directed distribution accordingly; from which this writ is prosecuted, and which is now assigned as error. contended, that William McLemore took a vested interest in the slaves, under the will of his father. [6 Yesey, 239 ; 6…

<p>Writ of error to the Circuit Court of Perry.</p> <p>The plaintiff in error declared against'the defendant for work and labor done, for goods, waresi and merchandize Sold and delivered, and upon an account stated. ' The defendant pleaded— 1. Non assumpsit. 2. That the defendant had no license to practice medicine at the time the account was made, for the recovery of which this action is brought. Thereupon the cause was submitted to a jury, who returned a verdict for the defendant, and judgment was rendered accordingly.</p> <p>On the trial, a bill of exceptions was sealed, at the instance of the plaintiff, which presents the following point: After the plaintiff had proved his accounts, which-were for services rendered as a physician, and the testimony had closed on both sides, the attorneys for the defendant produced a notice entitled and addressed thus: “ W. A. Simington v. A. G. McCraw, Ex’r of Robert F. Kent, Perry Circuit Court. To Hugh Davis, attorney of record for W. A. Simington, the plaintiff.” The notice then informed the attorney, “that the license, or permit, of W. A.-Simington to practice medicine and surgery will be required to be produced on the trial of the above stated case, in which said Simington is plaintiff, and A.'G. McCraw defendant, and which stands for trial at the next term of the Circuit Court of Perry county,” &c. “ to be holden,” &c. “ in September, 1843.” This notice was subscribed by the defendant’s attorneys, and acknowledged to .have been received by the person who appeared to be the attorney of record for the plaintiff, some weeks previous to the commencement of the term of the Court at which the production of the paper was required. But the attorney bn whom the notice was served, denied' that he represented Simington, but insisted that he was the attorney of the beneficial plaintiff. For that reason, and because the notice was not served on either Simington or the party for whose use the suit was brought, he insisted that it was insufficient to require the production of the license; but the Court ruled otherwise.</p> <p>insisted that the service of the notice upon the attorney of the real plaintiff, was insufficient to draw from the-plaintiff a paper which he must be presumed to have in his possession. [Clay’s Dig." 491. See Meek’s Sup. 117.] The case in' 6 Ala. Rep. 257, is unlike the present- There the notice was to aid in giving effect to a remedial statute; in other cases attorneys should be considered incompetent to accept service, unless they are expressly embraced by statute. ’ The Court seemed to require the production of a license, though a diploma would have been sufficient.</p>

This bill was filed by William T. Givens, against certain execution creditors of Ed. Herndon, and the case made by it is as follows. Herndon being largely indebted to Givens, made and executed two deeds of trust, conveying certain real and personal estate to one Jesse C. Cobb, upon trusts which will be recited hereafter ; one of these deeds is dated the 20th, the other the 21st April, 1840. These deeds were duly recorded in the proper office.

Assumpsit by the defendant against the plaintiffin error. Held: that a “ readiness to endeavor,’.’ was sufficient. Before the plaintiff can recover, if he was prevented by the acts of the defendant from endeavoring to procure 'the passage of the act of Congress, he must show a readiness to fulfil the condition and perform his contract. [2 Pick. 155, 270 ; 4 Id. 101; 4 Por. 170 ; 1 Ala.

Writ of Error to the Circuit Coart of Talladega. This was an action of assumpsit, at the suit of the defendant in error, on a writing obligatory, made by the plaintiff, the 21st January, 1837, for the payment of the sum of three hundred and thirty-eight dollars and sixty-nine cents, three days after date. The defendant below pleaded, “ 1. The general issue. 2. That he was under twenty-one years of age when the note in the plaintiff’s declaration mentioned, was executed. 3.

Writ of Error to the County Court of Randolph. This suit was commenced in a Justice’s Court, by Crawford against S. & J. J. Childs, and after judgment was removed by certiorari into the County Court, upon the application of the defendants. In the County Court, the canse yvas submitted to a jury, and it appears from the judgment entry, that the verdict was for the plaintiff for $55 58, and fifteen per cent damages on the, same for delay.

Debt, by the plaintiff against the defendants in error, upon a bond in the penal sum of $8,000, made by the latter, to the former under the statute, for the prosecution of an action of detinue for certain slaves.

Writ of error to the Circuit Court of Sumter. This was an action of assumpsit at the suit of the plaintiff in error against the defendant. The declaration contained counts for money lent and advanced, paid, laid out, &c., had and received, and upon an account stated.

After the bill of exceptions was stricken from the record, a motion was submitted on behalf of the plaintiffs in error, to file it as the exceptions taken at the trial, and to proceed with the cause in the same manner as if it had been certified by the Judge who tried the cause.

<p>1. It is not sufficient to give a Court of Chanceryjurisdiction, that an account exists between the parties, or that a fraud has been practised. There must be a discovery wanted to disclose the fraud, or in aid of the account, or the accounts must be so complicated, as to require the aid of a Court of Chancery to adjust them.</p>

In October, 1842, defendant in error filed his bill, setting forth that at the County Court of Benton, holden in July preceding, a judgment was rendered againnt him and one William Tidmore, in favor of Messrs. Herndon & Kelly, for the use of James A. Givens, for the sum of $1438 debt and damages, besides $14 06i costs. An execution was issued on- this judgment, which was levied on the complainant’s land.

Writ of Error to the County Court of Conecuh. The writ of error is sued out by those ascertained, by the final decree, to be entitled to distribution of the estate of Joseph Sto-num, deceased, against George Stonum, the executor of said Joseph, to revise the proceedings had in said Court, on the matters of the estate, at, and previous to, the final settlement.

<p>1. Confessions, or admissions, must be taken altogether, but the jury are not bound to give equal credence to every part of Hie statement. When the admission is not a whole, or entire thing, but consists of parts, the jury cannot capriciously reject the portion favorable to the party making it; though slight facts or circumstances would be sufficient to justify them in disregarding it.</p> <p>2. In such a case, the jury, and not the Court, is the proper judge of the credit to be given to the different parts of the admission.</p>

<p>3.Whether an attorney at law, charged with the collection of a debt be authorized to receive money upon an execution of a stranger under an agreement with him, that the execution shall remain open for his benefit, is not material, if the money thus received is paid over to the plaintiff in the judgment; in such case the party thus paying the money shall be entitled to an ’exetion in their names for his reimbursement.</p> <p>-2. In. a contest between execution creditors, it appeared that an original,. alias, eaiiphiriesfi.fa. had regularly issued upon the defendant’s judgment,, the last of winch was placed in the sheriff’s hands, before the original fi. fa-, in favor of the plaintiff issued: Held, that no question could arise as to the-dormancy of the defendant’s first fi. fa. as between him and the plaintiff — as his subsequent executions, which were regularly proceeded in, were entitled to priority of the plaintiff’s.</p> <p>3. Where goods levied on are removed by the defendant, or by his permission or connivance, or are delivered to Mm under a forthcoming bond, which he forfeits, the plaintiff may have a newfi.fa.</p> <p>4.The sheriff should levy a fi. fa. on a sufficiency of the defendant’s properly, if to be found, to satisfy it; but the mere omission of the sheriff to-''do his duty in this respect, will not postpone an elder to a junior fi. fa. at the suit of another party.</p> <p>5.The remark of the plaintiff in a fi. fa. to the sheriff that he would do nothing that could affect his lien, nor must he (the sheriff,) do any thing that would cause him to lose it, but if he failed to make the money by a sale of property, he would not rule Mm, will not make the fi. fa. dormant and inoperative, ifthe sheriff failed to proceed thereon, unless the plaintiff intended to assent to, and approve the delay, with the view of aiding the defendants, or protecting their property.</p>

■ The bill-was filed by the defendant in error, and alledges, that on the 24th April, 1838, the Selma and Tennessee Rail Road Company being indebted to him,-he drew'a bill of exchange upon Gilbert Shearer, its president, in favor of one Henry Lazarus, for the payment of $ 1276 89, on the first of January, 1839, negotiable and payable at the Bank of Mobile, which was duly accepted by Shearer.

Writ of Error to the Court of Chancery sitting in Lowndes. The plaintiff in error filed a bill .to foreclose the equity of redemption to certain lands, described as follows, viz: The west half of the north-west quarter of section three, of township fifteen, in range twelve, containing eighty-five 83¿-100 acres ; the west half of the south-west quarter of section thirty-five, township sixteen, and range twelve, containing eighty 20-100 acres -, the north-east quarter of…

Debt by the plaintiff in error, for the use of William C. Har-lor, against the defendant in error, as surety of Elijah Harlor, guardian of William C. Harlor, on his bond in the penalty of one thousand four hundred dollars.

<p>Writ of Error to the Chancery Court of Benton.</p> <p>Tiie defendant in error filed his bill, setting forth, that on the first of January, 1838, Peter Walden and John Boozer, made their bill single, by which they promised to pay to him, or bearer, the sum of six hundred dollars, twelve months after date ; that in February, 1839, being about to leave the State, he deposited the same in the hands of Henry Dunn as his agent, without investing him, either by contract or otherwise, with any other interest therein ; that afterwards, his agent caused the writing to be put in suit in the name of the complainant, for his own use, and thus recovered a judgment against the obligors in the Circuit Court of Benton, for the sum of five hundred and ninety dollars, besides costs.</p> <p>It is further stated, that an execution had issued on the judgment and was in the hands of Robert S. Porter, the sheriff of Benton, at the time of the exhibition of the bill; that the com.plainant had given notice to the attorneys who conducted the suit at law, as well as to the defendants in the judgment, and the sheriff, of his claim to the money that might be collected thereon; and prohibited its payment to his agent. The complainant had demanded of Harris Dunn the attorney’s receipt which he had taken, or that the control of the judgment be given to him, which was refused, &c. The bill concludes with a prayer for an injunction and subpoena; both of which were regularly issued.</p> <p>The bill was answered by Henry Dunn, denying that the writing in question was left with him as the complainant’s agent, to put into an attorney’s hands for collection, and take a receipt therefor in the complainant’s name, and alledging that he received it under the following circumstances, viz: The complainant being about to leave the State, to remain abroad for an indefinite period, purchased some property of respondent, (which is particularly mentioned,) was indebted to him in the sum of one hundred and twelve dollars for merchandize sold, and money lent, also in several promissory notes, the amounts and dates of which are particularly stated. To secure these several sums the complainant gave respondent the specialty, to collect by suit and apply the proceeds to the payment of his own demand. It was further agreed between the complainant and defendant, that as the latter was to leave his wife and children in this State, the former should give them such necessary assistance as he could during the absence of the defendant. Under this branch of the agreement, the respondent paid several sums of money, and gave his individual notes in order to protect his property from being seized and sold by his creditors, and his family from being distressed, all which are particularly stated with reference to the creditors, amount, &c. These payments it is alledged, were made at the request of the complainant’s wife. In addition to this, respondent alledges, that he has had to encounter difficult and protract ed litigation in the recovery of the judgment. Whenever the complainant will pay respondent what ho justly owes him, he will renounce his lien upon the judgment, and so informed the complainant before he filed his bill.</p> <p>The defendants, Walden and Boozer, moved the Court to dismiss the bill as to them, for want of equity, which motion was overruled. Then the defendant, Dunn, moved the Court to dissolve the injunction, upon his answer; this motion was granted upon the execution of a refunding bond; and it was thereupon referred to the Master to ascertain the facts in respect to the al-ledged agreement by the complainant to pledge the specialty in question to the respondent, and to take and report an account of the sums paid by the latter for the former, or due from the former to the latter.</p> <p>The evidence taken before the Master accompanies his report, and is referred to; his conclusions are, 1. That the note of Walden and Boozer was only delivered to the respondent as a friend of the complainant, to be collected for the use of the complainant, and not as collateral security as alledged in the answer of respondent. 2. That at the time the note was placed in the hands of the respondent, the complainant owed him but a small sum of money, if any thing; but since that time the respondent has paid money for him, &c., which in equity should be refunded, the aggregate amount of all which is $372 05. 3. That after deducting the sum due the respondent, the balance of the judgment, viz: $263 66, should be paid to the complainant.</p> <p>Exceptions were taken to the report by the respondent, and overruled. The Chancellor was of opinion that from the proof, it was difficult, if not impossible to ascertain with exactness, the state of accounts between the parties, that the report of the Master was as favorable to respondent as it could be, and rendered a decree accordingly, adjudging that each of the parties in controversy pay a moiety of the costs. The defendant, Dunn, alone assigns error.</p> <p>made the following points: 1. The complainant had a plain and adequate remedy at law for the conversion of the specialty, and consequently the bill should have been dismissed for want of equity. [1 Story’s Eq. 439-40; 2 Johns. Ch. Rep. 169,171 ; 1 Litt. Rep. 86 ; 22 Maine’s Rep. 207; 8 Porter’s Rep. 63; 3 Ala. Rep. 521; 7 Ala. Rep. 5851] 2. The bill should have been dismissed because the answer did not make the discovery sought, (1 Story’s Eq. 436-7,) or because the allegata and probata did not correspond, or because there was no proof that the complainant demanded the writing before the bill was filed. 3. The decree is founded upon the report of the Master, which is opposed to the proof, and entirely misconceives it. One witness testified that Walden and Boozer’s note was given to Henry Dunn- to secure him in what the complainant owed, that the balance due thereon was to be collected for the use of the complainant’s family, and that the complainant said the defendant, Dunn, should lose nothing for attending to his business. Three other witnesses who were examined, merely state that the paper was placed in Henry Dunn’s hands for collection, without denying that he had a lien upon it. The testimony of these witnesses is clearly reconcileablé with each other.</p> <p>4. The items of the account of Henry Dunn, on which the Master reported favorably, amounted to $436 91, on the 18th July, 1843, and those rejected by him amount to $265 05, and leave a balance in favor of the defendant, after allowing him to appropriate the entire judgment, of $53 03. This will appear from the evidence and the answer, which fully sustains the rejected items. 5. No costs should have been adjudged against the defendant, Dunn. [6 Ala. Rep. 518.]</p>

Assumpsit by the plaintiff, against the defendant in error. The writ issued against the defendant in error and Abner S. Lipscomb, executors of Catharine V.' George, deceased, which was returned executed on Gaines, and not found as to Lipscomb.

Writ of Error to the Circuit Court of Barbour. ■ This was an action of assumpsit at the suit of the plaintiff in error against the defendant. The cause was tried upon issues to the pleas of non-assumpsit, set 'off, and the failure of consideration, a verdict returned for the defendant, and judgment rendered accordingly. On the trial, the plaintiff excepted to the ruling of the Court.

This case comes here upon exceptions to the master’s report, in two cases, heard together, by consent; one filed by the plain-tiffin error, as guardian of a lunatic, to dissolve the marriage ; the other, by the wife, for a divorce and alimony. The chancellor decreed the marriage valid, and taxed the complainant with the costs. This decree was so far modified by this Court, as to require the costs to be paid out of the lunatic’s estate.

<p>Writ of error to the Circuit Court of Barbour.</p> <p>The writ and declaration in this case arc in the name of Jacob A. Robertson, assignee of the debts, estate and effects of Samuel A. Whittlesey and Alexander Robertson, late partners, &c. On the margin of the judgment entry, the case is thus stated. “Jacob A. Whittlesey, assignee of Whittlesey & Robertson v. Alexander P. Crawford.” The judgment is by default, and writ of inquiry executed.</p> <p>contended that the judgment departed from the writ and declaration in making another party plaintiff, and was not authorised by either.</p>

Assumpsit by the defendant against the;plaintiff in error. Upon the trial, the plaintiffs offered in evidence a writing as follows: “ Received of J. & S. Martin, two hundred and fifty six dollars ninety-seven cents, for a negro boy named Bob, aged about forty years; which I warrant, &c. Given under my hand and seal, this 19 December, 1841.

<p>1. After a cause commenced before a justice of the peace has been removed by appeal or certiorari to' a higher Court, the parties cannot be changed,, unless death or some other cause has supervened.</p> <p>2. Although the amount in controversy is less than fifty dollar's, and the suit was commenced before ajustice of the peace, yet the plaintiff who sues for the use of another, cannot recover for work and labor done for the beneficial plaintiff, unlessdie stood in such a relation that the right to compensation inured to him.</p>

<p>Writ of Error to the Circuit Court of Dallas.</p> <p>This proceeding is by Cooper, as a judgment creditor of the Selma and Tennessee Rail Road Company by garnishee process against Graves as a debtor stockholder of the same. The garnishment was issued 14th February, 1842, returnable to the spring term of that year. Upon the return of the process, Graves appeared and filed his answer in writing, in which he sets out at length the proceedings preparatory to the organization of the Company, his subscription for a hundred shares of the stock, under the belief and impression produced by the commissioners, that he would be permitted to relinquish it by forfeiting what he should pay thereon. Afterwards he relinquished one half of his stock, and reduced it from 100 to 50 shares. He admits the directors have called for instalments, amounting in all to 17¿ per cent, of which he has paid 10 per cent, but refused to pay the remainder, offering to relinquish his stock. If, under the circumstances stated, he is indebted to the company any thing, then he admits a debt of $375, that being 7k per cent, on 50 shares.</p> <p>No further proceedings on Graves’ answer were taken at the spring term, 1842; but at the fall term, 1843, as the judgment entry recites, the parties came by their attornies, and the said Graves having at a former term of this Court filed his answer, to wit: on the 14tluday of May, 1842, by consent oí the plaintiff; which answer is ordered to be filed with the records of the Court and the same taken as a part of the entry on the minutes. And thereupon came the said Selma and Tennessee Rail Road Company, and suggest that the said garnishee is indebted to said Company as a stockholder therein, for the calls mentioned in his answer and at this time in a greater amount, to wit: the sum of f 1,687 45, than he is willing to admit on oath, prays the Court that it may be allowed to show the same by competent testimony, which being granted by the Court, the garnishee declines to make any plea in reply to said suggestion ; and thereupon came a jury, to wit: &C-, who being duly elected, tried and sworn to inquire of the true indebtednes of the said garnishee aforesaid, upon their oath do say, &c. returning an assessment of #1,687 45, for which judgment was given by the Court.</p> <p>At the trial, it was in evidence that David Cooper, the deceased partner of the plaintiff was present at the meeting of the board of directors of the Rail Road Company, when the board passed a certain resolution referred to in the answer of the garnishee, whereby the subscribers to the capital stock were allowed the privilege o’f relinquishing one half of their said stock; there was no evidence tending to show that the garnishee had, or had not, relinquished his stock, as was asserted in his answer. The defendant asked the Court to charge the jury, that if, from the evidence, they believed the deceased partner of the plaintiff was present at the meeting of the board which passed the resolution of relinquishment, and sanctioned the same, they should find the defendant to be no farther indebted than was admitted by his answer. This was refused. The Court charged the jury that said resolution of relinquishment was not binding either upon the plaintiff or upon the Rail Road Company. To the charge and refusal to charge the,defendant excepted.</p> <p>He now assigns as error, that the Court erred- — ■</p> <p>1. In refusing the charge asked.</p> <p>2. In the charge given.</p> <p>3. In permitting the Rail Road Company to contest his answer at the term after it was made.</p> <p>4. In rendering judgment for the calls due on the whole stock subscribed, when the defendant was liable only for one half.</p> <p>insisted—</p> <p>1. That it was competent for the Company to relieve the defendant, by resolution, from the contract for 100 shares, and to reduce it to 50. [Charter, §§ 1, 5, 6, 15 and 17, Acts 1836, p. 37 ; Selma and T. Rail Road Co. v. Tipton, 5 Ala. Rep. 808.]</p> <p>2. The answer of the garnishee was made at the spring term, 1842, but not contested until the fall term, 1843. It is true a judgment may be rendered upon an answer of a garnishee after an irregular continuance over without notice, but that is considered as a judgment nunc pro tunc pronounced on the facts as ascertained ; but here there was no authority to contest the answer when it was contested. The failure to contest the answer at the term when made, is not a waiver of the right, for the statute contemplates a denial at the term when the answer is made. [Dig. 60, §§24, 25.]</p> <p>3. The defendant did not waive any right acquired by the neglect to contest the answer, on the contrary he refused to answer to the suggestion of the Company,or plead to it in any manner. The mere employment of, or appearance by, an attorney, when forced to proceed, cannot affect the defendant. [Sheppard v. Buford, 7 Ala. Rep. 90.]</p> <p>made the following points:</p> <p>1. The charge asked for may be considered as entirely abstract, for there is no evidence shown to warrant it.</p> <p>2. The directors of a stock company have no authority to reduce the capital stock, or exempt the subscribers from liability for calls. [Angel & Ames on Corp. 243,239, 476,478; Digest, 260, §§ 8, 9 ; 6 Ala. Rep. 741.]</p> <p>3. The Court properly allowed the Company to contest the answer of the garnishee. [Dig. 60, § 24; 6 Ala. Rep. 705]</p>

The bill is filed by the infant and adult heirs at law, of Wel-born D. Westmoreland, and charges that administration was granted of his estate by the Orphans’ Court of Macon to one Sea-born J. Westmoreland, who now resides in parts unknown, and to Elizabeth Westmoreland, who has since intermarried with one Pati’ick Cousins.

Writ of Error to the County Court of Dalias. This was an action of assumpsit at the suit of the defendant in error, for goods wares and merchandize, sold and delivered, and upon an account stated, &c. The cause was tried upon issues on the pleas of non-assumpsit, set off, payment, and fraud; a verdict was returned for the plaintiff and judgment rendered accordingly. On the trial'the defendant excepted to the ruling of the Court.

Writ of error to the Circuit Court of Benton. Assumpsit by Powell,as the administrator oflsaacLyon,against McGehee. The declaration contains four counts to the following effect, to wit: the first is against him. as the maker of a note for $ 1,000, dated 19th November, 1838, payable to Lyon or order, four months after date, negotiable and payable at the office of the Wetumpka Trading Company. The only averment in this count is, that the time of payment has passed.

<p>Error to the County Court of Sumter.</p> <p>This was a motion against the plaintiff in error, as sheriff of Sumter, for failing to make the money on an execution of the defendant in error.</p> <p>The parties having gone to trial on an issue, it appears from the bill of exceptions found in the record, that the execution which came to the sheriff’s hands, was a fieri facias, issued upon a judgment obtained in a suit commenced by original attachment, which was levied on a number of slaves, of value more than sufficient to pay the debt, and an endorsement of this fact was made upon the fi. fa., and of the property levied on by the attachment, which had been replevied and returned to the defendant.</p> <p>That the sheriff proceeded under the execution, to levy on the slaves of the defendant, so replevied, who appeared with his gun, and threatened to shoot the sheriff, if ho persisted in taking the negroes. The sheriff abandoned the slaves, and the defendant carried them off the next day. The sheriff returned upon the execution a demand and refusal to deliver the property replevied, and forfeiture of the bond: an execution, issued upon the forfeited bond, was afterwards quashed.</p> <p>The Coui’t charged the jui-y, that the execution on its face, was an ordinary fi. f«., and was not controlled, or modified by the endorsement. That it was the duty of the sheriff to have levied on sufficient property, and that a demand of the property mentioned in the endorsement on the execution, and return of forfeiture of the bond, was not a compliance with his duty. That the process was not a vendilioni exponas, and that the endorsement of the clerk was improper; that therefore the action of the sheriff in conformity with it was improper.</p> <p>The defendant requested the Court to charge, that in this case the sheriff had no power to levy ; that it was his duty to demand the property mentioned in the clerk’s indorsement; and on failure to deliver it, to make the return he did. That if he did seize the property under the process in his hands, he was justified in delivering it on the demand of the defendant in execution. That the sheriff had no power to levy, or take any other property than that mentioned in the endorsement.</p> <p>Also to charge, that the clerk had no power to issue an execution against the defendant’s land and goods generally. Further, that if the sheriff rightly made the levy, and believed his life in jeopardy, under the threat made, he was excusable in relinquishing the levy.</p> <p>The Court left it to the jury to say whether the sheriff’s life was in jeopardy, and refused the other charges moved for. To the charge given, and to those refused, the defendant excepted, and now assigns as error.</p> <p>The lien of the plaintiff continued, notwithstanding the execution of the replevy bond, and that levy being sufficient, no other can be made until it is exhausted. [Clay’s Dig. 61, § 33, 35; 1 Ala. 678 ; 7th Id. 138.] The sheriff is not bound to risk his life, and of that he is the proper judge.</p> <p>cited 9th Porter, 70,405 ; Clay’s Dig. 205, § 18, 21; 203, § 9.</p>

Writ of Error to the Circuit Gourt of Blount. This was a suit commenced before a justice of the peace, by the plaintiff in error, to recover of the defendant the sum of $20, upon a promise in writing. The cause was removed by appeal to the Circuit Court, where it was tried by a jury upon the plea of non-assumpsit, a verdict was returned for the defendant -and judgment rendered accordingly.

Writ of Error to the County Court of Mobile. Motion by Auld to quash a writ of fi. fa. issued against him as the executor of one Yiner, at the suit of Wilson. The writ issued on the 15th April, 1842, and commanded the sheriff to make a sum therein specified, out of the goods of Yiner, in the hands of Auld to be administered. The reason assigned to quash it is, that the writ improperly issued to the sheriff.

<p>Error to the Circuit Court of Mobile.</p> <p>Assumpsit by the intestate of plaintiff in error, as bearer of two bills of exchange against the defendant, as drawer and acceptor of two bills of exchange, which are in the usual form, except that no pei’son is mentioned in the bills to whom the money is payable. The declaration contains two counts in the usual form, and also the common counts.</p> <p>The plaintiff introduced the bills of exchange, and offered to introduce Patrick O’Neil as a witness, he being a certificated bankrupt. The defendant objected that he was incompetent, being interested in the event of the suit. To show his interest, they introduced several depositions, by which it appeared, that the bills of exchange were given.by the drawers to Patrick O’Neil, in settlement of a judgment of O’Neil, against one T. Coopwood, the drawer of one of the bills, and that the bills were drawn in this peculiar manner at the request of O’Neil.</p> <p>To rebut this testimony, the plaintiff introduced other deposi-sitions, by which it appeared, that the plaintiff and his intestate were the sureties of Patrick O’Neil, had been compelled to pay about $5,000 for him, and that these bills were deposited with them, and relied on by them, for their re-imbursement. The Court excluded the witness, and the plaintiff excepted. ■</p> <p>The interest which will disqualify a witness must be certain, not possible, or even probable. [1 Salk. 283 ; 6 Bing. 390 ; 3 Term, 27. 1 S. & R. 36 ; 3 John. 256 ; 2 Y. & J. 45.]</p> <p>The witness was called to diminish, rather than increase the assigned estate, and for this purpose was certainly competent. [Gren. on Ev. 437.]</p> <p>The evidence of O’Neil might have authorized a recovery on the common counts, which distinguishes the case from the position it occupied when here before; although the papers were not technically bills of exchange, they should be regarded as an acknowledgment, that the acceptor had the funds of the drawer, and would pay it over to the person who should demand the same. ' To show that there might be a recovery on the common counts, he cited 12 John. 90; 1 Crunch, 440; 5 Cowen, 75; 5 N. H. 577; Bayley on Bills, 244.</p> <p>contended, that the case was not varied since it was last here — the bills stood alone; no evidence of delivery to the plaintiff — no evidence of consideration, to relieve them from the infirmity of their condition. He cited 6 Wend. 644; 13 Mass. 158.</p> <p>The testimony shows, that O’Neil was interested. If these bills are collected, it will relieve his estate from the payment of the debt which they were intended to secure. It would relieve his estate from the claims of this creditor, and increase the surplus in the hands of the assignee. This point was decided in 7 Ala. Rep. 498.</p>

Writ of error to the Circuit Court of Benton. Tiie defendant in error presented his petition to a Judge in vacation, setting forth that a writ oí fieri facias, (which he particularly described,) had been issued against his estate, upon a judgment recovered by the plaintiff in error, in October, 1842; that in November, 1843, he was regularly declared a bankrupt, by the District Court of the United States for the Northern District of Alabama, and thereby fully discharged from…

<p>1. Where a party is already before the Court, and the suit is improperly dismissed, a writ of error is tire proper remedy.</p>

These causes were heard together, and present the following state of facts. In 1836, Ledyard sold to Sayre, Converse & Co., and Rufus Greene, a lot of land in Mobile, and received a mortgage to secure the payment of the purchase money, but failed to have it recorded. All of the purchase money has been paid, except about $2,000. After the forfeiture of the mortgage, Greene conveyed his interest to R. G. Gordon, who conveyed to Henry Meyers, who conveyed to James West.

The plaintiff in error, who is complainant, by its bill, states that William Wallace, on the 26th February, 1836, executed to T. W. McCoy and T. M. English, a mortgage of certain real estate, (particularly described,) situate in the city of Mobile, to secure to the mortgagees one hundred and twenty-three thousand and nine hundred dollars.

: Assumpsit by Parmlee, as indorsee of a bill of exchange, drawn by J. C. Dubose, on-and accepted by Isaiah Dubose', in favor of Qoodman, Miller & Co. who indorsed it to Gayle &… Held: that the statute gives no right to set off a demand against an intermediate indorser. As to the bonafides of the consideration paid by the plaintiff for the bill, no charge was asked, therefore it is immaterial to consider whether the law is correctly held in the case cited from 11 N. H. 244.

<p>Error to the Chancery Court of Benton.</p> <p>The bill was filed by the plaintiff in error, and alledges, that in the year 1835, he held as his own property, two notes on one Allen Elston, amounting to $1,100. That Samuel F. Clauson (defendant’s intestate,) being anxious to make a profit by the purchase, and sale of a tract ofland, (which is described,) applied to complainant for the notes of Elston, to enable him to make the purchase ; whereupon it was agreed between him and complainant, that Clauson should purchase the land with the notes, and as soon as he could make • sale thereof, he would return to complainant the amount of the notes, and also pay complainant one-half the profit that might be realized by a sale of the land. That Clauson received the notes upon this agreement, and with them, together with #1,400 of his own money, purchased the land. That-some time after the purchase, Clauson could have sold the land for $8,000, but refused tosell it, and declared that he intended to keep it for his own use. These facts did not come to complainant’s knowledge until 1842. That the land has since greatly diminished in value, and that Clauson, upon application to him to sell the land under the contract, denied the agreement as here stated, and refused to execute it.</p> <p>The bill further alledges, that on the 4th September, 1839', the complainant filed a bill in chancery against Clauson and others, for the settlement of certain partnership accounts, between himself, Clauson and others, in which bill the transaction here narrated, was inserted, which was done under the ad vice of counsel, to avoid multiplicity of suits, as it was possible that the chancellor, under that bill, would also determine the rights of complainant, as well under said contract, as under the partnership-transactions. That the bill was objected to for multifariousness, and overruled by the chancellor, on the ground that relief was not prayed under the agreement, but that it was stated in explanation of the partnership transactions^</p> <p>The heirs and representatives of Clauson are made defendants', and the prayer of the bill is for such relief in the premises as the nature and circumstances of the case may require.</p> <p>The chancellor, on motion, dismissed the bill, from which this writ is prosecuted.</p> <p>insisted,</p> <p>1. That although the agreement was not in writing, relief could be afforded.</p> <p>2, That equity would .regard Clauson as. holding the land in trust for the benefit of complainant, to the extent of his interest. [2 Story, 449, § 1206 and 1207 ; 2 Yes. &• B. 388 ; 7 Yesey, 453,425, 435 ; 1 Cox, 165 ; 3 M. & S. 562; 3 Mason, 347, 360; 3 Bibb, 15; 2 Johns. Ch. 409; 1 R. & M. 53; 3 ILayw. 253; 4 J. J. M. 593 ; 2 Eq. Dig. 475, § 43, 62 ; 4 Bibb, 102.]</p>

Writ of Error to the County Court of Macon. A fieri facias was issued from the County Court of Macon, on the 10th of September, 1844, at the suit of the plaintiff in error, against the goods, and chattels, &c. of John Bedell and Thomas M. Robinson ; which writ was levied upon a negro man named Harry, as the property ofRobinson, on the 24th December, 1844, a claim was interposed by the defendant in error, and a bond executed, with surety, to try the right pursuant to the…

Writ of Error to the Court of Chancery for the first District. The case made by the bill is this: In November, 1836, the complainant purchased from Flavel Vivian, who was the defendant’s intestate, three slaves, at the price of $3,100, and in payment therefor indorsed to said Vivian, a note made by one Bullock, for $4,280, which was at maturity, on the 11th April, 1837.

<p>Writ of Error to the Circuit Court of Barbour.</p> <p>Assumpsit by the defendants in error, on a promissory note made to the wife, by the plaintiff in error.</p> <p>To a declaration in the usual form, in which the note is declared on as a note made to the wife, the defendant demurred, which being overruled, he pleaded the general issue. 2. A set off of a debt due by the wife after marriage. 3. A set off of a debt due by the husband. 4. A set off of a debt due by husband and wife jointly. These pleas of set off were demurred to, and the Court sustained the demurrers, and gave judgment for the plaintiffs. The assignments of error are, the overruling the demurrers to the declaration, and sustaining the demurrers to the pleas.</p> <p>cited Reeves Dom. Rel. 133, 163-4; Saund. P. & E. 2 vol. 789 ; 1 Term Rep. 621; Chitty on Con. 330 ; Chitty on Bills, 8.</p> <p>cited 2 M. & S. 393.</p>

<p>Writ of Error to the Circuit Court of Mobile.</p> <p>This was an action of ejectment, at the suit of the plaintiff in error. The usual consent rule being entered into, the cause was tried on the plea of not guilty. From a bill of exceptions, sealed at the instance of the plaintiff, it appears, that to make out his case, he introduced a Spanish concession to William McYoy, dated in November, 1806, which had been laid before the commissioner appointed under the act of Congress of the 25th April, 1812, whose report was adverse to its allowance. This claim was again presented to the Register and Receiver of the Land Office at St. Stephens, pursuant to the provisions of an act of Congress of the 3d March, 1827; these officers made a favorable report, and the claim was specially confirmed by an act of Congress of the 5th ofMay, 1832. Plaintiff also adduced a deed, dated in 1814, by which McVoy conveyed the land embraced by his claim, to Joshua and William Kennedy, with covenants of special warranty.</p> <p>The defendants, in resisting a recovery, relied upon the act of Congress of 1818, by which the President of the United States was authorized to cause the site of Fort Charlotte in the city of Mobile, to be laid offin lots and sold — the survey and map thereof made by Silas Dinsmoor, a surveyor of the United States. They proved the sale of the lots in 1820, or 1821, and their purchase by an association ofindividuals,who received patents therefor; a subdivision by this company, a resale, &c. and a regular chain of title to the defendants.</p> <p>The line of the Fort lots were extended east, below high water mark, but since their sale, Water street has been laid off east of them, and the land reclaimed by art; and between this street and the channel of the river, and in front of the lot of which the defendants are proprietors, the land in controversy is located.</p> <p>The plaintiff prayed the court to charge the jury — 1. That he was entitled to all the land lying between the eastern survey of Dinsiiioor and the rivei, according to the evidence adduced. 2. That he was entitled to the land embraced by the patent from the United States to his lessor, which was not contained in the grant to the lot company; and that the limits of these lots could not be extended by improvements made as riparian proprietors. 3. That if they found the land in controversy to be within the limits of the Spanish grant, and not embraced by the patents, nor in Dinsmoor’s survey, then the plaintiff was entitled to recover. These several prayers for instructions were denied, and the court charged the jury, that the case of Abbot’s Ex’r v. Doe ex dem. Kennedy, 5 Ala. Rep. 393, was a decisive authority against the plaintiff’s right to recover. A verdict was returned for the defendants, and judgment rendered accordingly.</p> <p>This cause, with several others depending upon the same title, were arged by G. N. Stewart and J. A. Campbell, for the plaintiff in error; and E. S. Dargan and J. F. Adams, for the defendants.</p> <p>For the plaintiff, it was insisted, that the purchasers of the lots laid off upon the site of Fort Charlotte, acquired no riparian rights; that the eastern lots were not bounded by the river, but extended to fixed metes and bounds below high water mark; at the terminus of these lots, and west of the channel, it was expected that a street would be laid off corresponding with the plan of the city, and the ground so filled up and elevated as to make it fit for use — this expectation has been realized. They cited 9 Por. Rep. 587; 16 Pet. Rep. 251; 2 How. Rep. 592; Schultses’ Aq. Rights, 46,117,118; 14 Pet. Rep. 353.; 10 Pet. Rep. 717; Í6 Pet. Rep. 54 ; 5 N. Hamp. Rep. 520 ; 1 Taylor’s Rep. 136; 4 Munf. Rep. 63 ; 4 Dev. Rep. 180 ; 20 Wend. Rep. 149,156; 14 Mass. Rep. 151; 17 Id. 207 ; 5 Cow. Rep. 371; 6 Id. 706; Grotius, 94,137.</p> <p>It was admitted, that the concession to McVoy would be inoperative if it were not for the confirmatory act of 1832, and insisted that the survey which accompanies and makes part of it may be referred to for the purpose of supplying the defects of the, patent and identifying the land. [7 Missouri Rep. 503; 7 Ala. Rep. 543,882 ; 2 How. Rep. 344, 318, 588; Land Laws, Op. &. Ins. 23, 878,887,1043.] They contended that the premises had not been expressly or impliedly dedicated to the public use; that there was nothing in the manner of surveying the fort lots, upon which such- an argument could be rested. [20 Wend. Rep. 115.]</p> <p>It was contended for the defendant, that the case at bar was identical with Abbot’s Ex’r v. Doe ex dem. Kennedy, supra, which fully sustained the judgment of the Circuit Court. It was conceded that if the Fort Charlotte lots had been bounded by the liver, that the defendants would have had riparian rights, and their counsel insisted that an extension of their lines below high water mark, could not make a different rule of law applicable.</p> <p>A confirmation was necessary to impart validity to the grant to McYoy, but this could not be done after the sale of the lots, so-as to take from their proprietors a water front. - The act of 1832, shows in the reservation it contains, that no such purpose was-contemplated; and the patent issued under its authority, must be limited by the terms employed in the act. But be this as it may,, the concession to McYoy did not convey the shore, or give to-its assignee the benefit of accretions. They cited 8 Porter’s Rep. 24 ; 9 Id. 587; 12 Wheat. Rep. 601; 2 How. Rep. 603 ; 14 Pet. Rep. 368; 10 Id. 100; 16 Id. 251; White’s Span. Laws, ed. 1828, p. 62; Ang. on Tide Waters, 124; 2 Hall’s L. Journal,. 295-8 ; 3 Am. State Pap. (Pub. Lands,) 12.</p>

<p>'1. When an administrator resigns pending a suit against Mm, the plaintiff is not compelled to make the succeeding administrator a party in his stead,, though he has the privilege to do so; hut may proceed with the suit, in order to charge the resigning a'dministrator and his sureties, unless the resigning administrator also shows a due administration, or a transfer of all the assets to the succeeding administrator.</p> <p>2 When the resignation is suggested with the consent of the plaintiff, he ' may make the succeeding administrator a party, hut if the suggestion is not assented to, the administrator is put to Ms plea, which must show not only the resignation, hut the other matters essential to a full discharge.</p> <p>3. After a resignation, the administrator no longer represents the estate, and a judgment afterwards recovered, will have no effect to charge a succeeding administrator.</p> <p>4. Upon the confession of the plea of plene administravit, the judgment is to recover the sum due, to he levied of the goods, &c. which hereafter shall come to the hands of the administrator. A general judgment, to be levied de bonis intestaiis, upon such a confession, is irregular, and usually amendable as a clerical misprision, hut when directed by the Court is error, for which the judgment will he reversed.</p>

<p>Error to the Chancery Court of Mobile.</p> <p>The bill was filed by the defendant in error, and alledges, that on the 1st February, 1837, the complainant purchased from one Solomon Andrews, a lot, or parcel of land, for $40,000, and for the payment thereof, executed four promissory notes, falling due annually, for four successive years, and received from Andrews a deed of conveyance, with covenants of warranty. That some time in the spring of 1837, Andrews became wholly insolvent, and absconded from the city of Mobile. That on the 23d April, 1837, he gave notice of the facts, and warned all persons from purchasing, or trading for the notes, and on the 24th of the same month, gave a special notice to the Bank of Mobile. That about this time theBank of Mobile became possessed of the first of these notes, Fontaine & Freeman of the second, and Andrews & Bro. of the two last, with notice as he charges of his equity.</p> <p>That Solomon Andrews, previous to his sale and conveyance to the complainant, had executed to one St. John a mortgage on a portion of the premises, (which is described,) to secure the payment of $24,000 — that St. John filed a bill to foreclose his mortgage, and obtained a decree and order of sale, and that on the 6th May, 1839, the premises were sold, and conveyed to the purchaser, and complainat evicted therefrom — that the portion thus sold embraced the house and out buildings, and rendered the residue comparatively'valueless.</p> <p>The bill charges, that none of the notes were transferred in the usual course of trade — that if the persons holding the notes had any title at all to them, “it was as collateral security for, or in payment of pre-existing debts.” The prayer of the bill, is, for an injunction against proceedings on the notes — that it be referred to the Master, to ascertain how much of the purchase money should be abated, on account of the eviction, and that on his payment of that sum, the notes be delivered up to be cancelled. The Bank of Mobile, Fontaine & Freeman, and Andrews & Brothers, are made defendants, and specially interrogated.</p> <p>The Bank of Mobile, by its answer, insists, that the complainant had notice of the incumbrance on the property, and for the purpose of protecting himself, required a bond of indemnity, with good security, which was executed by B. B. Fontaine and John W. Freeman, and bears date on the first February, 1837. That the note on complainant was received by the Bank in payment, and discharge of debts due from Andrews to the Bank, and the evidences of his indebtedness were then delivered up to him, and that at the time the officers of the Bank had no knowledge of any objection to the note.</p> <p>Fontaine &. Freeman answer the bill, and admit the receipt of the second note from S. Andrews, under the following circumstances : They were indorsers on bills of S. Andrews for his accommodation, to the amount of abut $100,000, which were held by one Richardson — that Andrews failed to pay these bills at maturity — that they proposed to convey to Richardson a plantation and slaves, in this State, to pay these bills, and that Andrews agreed, that if such payment were made, he would reimburse them by delivering good notes. That the sale was accordingly made to Richardson, and this with other notes was delivered to them by S. Andrews, in pursuance of his agreement, at which time they had no knowledge of the equity of the complainant.</p> <p>The complainant filed a supplemental bill, in which, after repeating the allegations of the original bill, he alledges that at the time of his purchase from S. Andrews, as a cumulative security, he took from Andrews a bond of indemnity, executed by Andrews as principal,and B. B. Fontaine and John W. Freeman as his sureties. That at the time of the proceedings of St. John to foreclose his mortgage, and at the filing of the original bill, Andrews and Fontaine & Freeman were, and remain entirely insolvent, so that the bond has become worthless as a security. That Fon-taine & Freeman, or one of them, have negotiated the note they received to one John Freeman, but not in the usual course of trade, or for any consideration which could prevail against complainant; that he was proceeding at law to collect it, áre. and prayed an injunction.</p> <p>John Fontaine answers, and states that the note on complainant was delivered to him in the usual course of trade, and for a valuable consideration, without notice of the complainant’s equity.</p> <p>Andrews & Brothers also answer, and admit that they are holders of the two notes mentioned in the bill, which they received under the following circumstances-: That they had accepted and indorsed bills for the accommodation of S. Andrews to the amount of$125,000, which bills, in the due course of business, had come to the possession of the Bank of Mobile, and that S. Andrews was besides indebted to them in the sum of $50,000. That becoming alarmed at the state of commercial affairs, and doubting the ability of S. Andrews to meet his engagements, they applied to him for indemnity against the payment of the same, and received the two notes for that purpose. That they have since in good faith, paid to the Bank of Mobile upwards of $125,000, on their indorsements and acceptances for S. Andrews, and relied upon the notes as available means, but the indemnity they received, will not reimburse them. They also rely on the indemnity taken by the complainant, which they make an exhibit, and insist that until he has exhausted his remedy against the sureties on that bond, he cannot proceed against them.</p> <p>The Chancellor, at the hearing, dismissed the bill as to the Bank of Mobile, but considered that the equity of the complainant, was superior to that of the defendants, Fontaine, and Andrews & Brothers, and directed an account, to ascertain the injury sustained by the complainant by the eviction.</p> <p>From this decree, Andrews & Brothers prosecute this writ.</p> <p>The bill charges, that the notes were received by Andrews & Brothers, either in payment of precedent debts, or as collateral security. This is an admission by the complainant, that the defendants are entitled to recover the amount of the notes. The defendants are entitled to the benefit of either alternative, as the allegation must be taken most strongly against the statement of the pleader, and one of the alternatives shows, a title to the notes in the defendants. The objection may be taken either on demurrer, on motion to dismiss for want of equity, or at the final hearing. [3 Porter, 473 ; 10 Wheaton, 189 ; 1 M. & S. 201: 3 Yesey, 402, and note.]</p> <p>The penal bond, with surety, was a good and sufficient consideration for all the notes made by McCoy. [1 Greenl. R. 355; 7 Mass. 14 ; 15 Id. 171; 3 Ala. Rep. 302.]</p> <p>It is conceded, that negotiable paper taken in payment of a pre-existing debt is protected from latent equities, and the same reason applies to such a case as this. [16 Peters, 1; 1 Starkie’s Rep. 1; 1 Bing. N. C. 469; 4 Bing. R. 496.] The cases of Smith v.'DeWit, and De La Chaumette v. The Bank of England were mere dicta.</p> <p>There could be no recovery under the implied covenant in the deed, arising under the statute, from the terms, “grant, bargain, sell,” under ]he statute, because, the bond of indemnity executed contemporaneously with the deed, prevented these covenants from having any effect. As both parties knew, that this covenant was broken when it was made, in a court of law, the taking of the bond would prevent a breach of the covenant, and in a court of equity, it must be considered as a compensation agreed on by the parties.</p> <p>Before the last note to St. John would be payable, two of the notes made by McCoy would become due, and if before this period; and before eviction, Andrews and his sureties had become insolvent, equity could not have relieved against the payment of the two first notes made by McCoy. Nor would it have been a good defence at law, to either of the four notes. [4 Ala. 21; 1 Greenl. 358.] The only ground of equity would be the insolvency of the sureties in the.bond of indemnity, before the notes were indorsed by S. Andrews. An equity arising from the subsequent insolvency of these sureties,would not be availing against the indorsees. To this point, the case of Sherrod v. Rhodes at the present term is a full authority.</p> <p>The contest here is for the money still due from McCoy, for the purchase money of the land. The Bank it is admitted, is entitled to be paid in full, and as to Fontaine, who has not appealed from the decree, and is no party to this writ of error, the decree is admitted by him to be correct. [3 Porter, 475.] The contest then, is between the Bank and the plaintiffs in error, and as their title accrued at the same time, the equities are equal, and there must be a pro rata division of the fund. The rule would be the same, if instead of commercial paper, it was a bond, or an account; in either case the insolvency must exist at the time of the transfer, if that constitutes the equity.</p> <p>The fact that McCoy executed a mortgage on the land to S. Andrews, to secure the payment of these notes, cannot, in the present aspect of the case, be considered by the court. It is not put in issue by the bill, and although appended to the answer of the plaintiffs in error, cannot be considered as evidence in the cause. As McCoy has no equity against the Bank, he cannot be - permitted to retain a fund for the payment of the debt to the Bank, to which the plaintiffs in error are entitled. But if the Bank had a right to this fund, it could only be enforced upon the application of the Bank.</p>

Writ of Error to the Circuit Court of Mobile, This was an action of ejectment, at the suit of the plaintiff in error.

<p>1. In a plea under the statute discharging a surety, when the creditor, after notice in writing, omits to proceed on the security, it is not necessary to aver that the surety apprehends that his principal is about to become insolvent, or that he was about to migrate from the State without paying the debt; nor is it necessary his apprehension of these facts, or either of them, should be set out in the notice.</p> <p>2. A notice which omits to point the creditor directly to the principal, whom he is required to proceed against, or to the security, on which he is required to proceed, is of no effect, either under the statute or at common law.</p> <p>3. The discharge of a surety, by means of the statutory notice, must be pleaded specially.</p> <p>4. When a demurrer is improperly sustained to a plea, but Hie party defendant has the benefit of his defence before the jury on another plea, or the record shows he is entitled to no defence under the plea overruled, the judgment will not be reversed.</p>

<p>1.' S, having a judgment against A, verbally agreed with him that he would bid off the land of A, subject toan agreement to be afterwards entered into between them. Shortly afterwards they met, and ascertained the amount due from A to S, including the note here sued upon, and it was tiren agreed in writing, that A should have two years to pay the debt, by four equal instalments, and that upon the payment of tire debt, S would convey the land to A. A failed to pay the instalments, and by consent of A, S sold the land — Held that the verbal agreement was void under the statute of frauds, and the written agreement void for want of consideration. That it was a mere gratuitous promise, which S might have disregarded, and brought suit’ immediately for the recovery_of the debt, andtherefore d id not exonerate the surety.</p>

Upon points referred from the Circuit Court of Randolph. The defendant was indicted in the Circuit Court of Talladega, for breaking and entering the storehouse of Alfred Wood and Nelson Wood, and stealing therein “ one gold watch of the value of two hundred dollars, ten silver watches of the value of fifty dollars each, one bank bill of the denomination of fifty dollars, issued by the Bank of Mobile* of the value of fifty dollars, all of the the proper goods and chattels of…