Volume 9 — Alabama Reports

On points reserved by the Circuit Court of Mobile, as novel and difficult. The defendant was convicted at the Circuit Court of Mobile, upon a charge of betting upon an unlawful gaming table. He pleaded several pleas in abatement of the indictment ; to all which the State demurred, and had judgment of respondeas ouster on the demurrer. The matters of defence asserted by these pleas, present the questions reserved for the decision of this Court, and are as follows, to-wit: 1.

Trespass vi et armis, by the defendants against the plaintiffs in error. The first count of the declaration, charges an assault and battery by the wife of the defendant upon the wife of the plaintiff. The second count, charges the assault and battery to have been committed by a negro man named Bill, the slave of the defendant, by the command of his wife.

Writ of Error to the Circuit Court, of Mobile. This was an action of detinue, at the suit of the defendant in error, to recover a slave named Tom. The cause was tried upon the general isstie, a verdict returned for the plaintiff, which assessed the value of the slave and damages for his detention, on which judgment was accordingly rendered. On the trial, a bill of exceptions was sealed at the instance of the defendant.

<p>Writ of Error to tlie Circuit Court of Coosa.</p> <p>Action of debt upon a sheriff’s bond, at the relation of Patterson, against Powell and others, as the sureties of one Campbell. The breach assigned in the declaration is, that the said Campbell wholly neglected and refused to levy and satisfy a writ of fi- fa. in his hands, as sheriff, at the suit of the plaintiff, against the goods, &c. of one Hobdy, for $234 21.</p> <p>At the trial, the plaintiff produced and read in evidence the writ of fi. fa. which issued the 6th of October, 1841, and was returnable on the 4th Monday in March', 1842. On it was indorsed, that it came to the sheriff’s hands on the 15th October, 1841, and a levy on the 1st of November of the same year, upon certain lands. Also, that these lands were sold on the first Monday of March, 1842, and the proceeds applied to older fi. fa’s. Also, a levy on four slaves, for which a forthcoming bond was taken, 8th March, 1842.</p> <p>'J'ho plaintiff then offered in evidence other executions against Hobdy, which were in the sheriff’s hands at the same time, to prove the extent of the liens then against his lands. One of these was for f 1000, and another for ¡$127. The defendant objected to this evidence, but the Court admitted it. The plaintiff next offered the execution docket of the clerk of Coosa Circuit Court, to show, that an execution therein described was delivered to the said sheriff, and returned by him, and proved that it had been searched for, but not found in the files, and that the entry on the docket was in the writing of a former clerk of the court, who, at the time of the trial, resided in Mississippi. This was allowed against the objection of the defendant. The entry is thus — “ Issued and delivered to W. J. Campbell, sheriff, on the 15th October, 1841, levied on land 1st November, 1841, and sold 7th March, 1842 ; proceeds applied to former fi. fa’s.-</p> <p>In order to prove the value of the lands described in the levy, the counsel for the defendant proposed to ask a witness, “ what was the estimated cash value put on the lands levied, by the neighborhood generally.” The Court excluded the question in this form, but allowed the party to ask the witness, what was his own estimate of the value.</p> <p>The plaintiff offered evidence conducing to prove, that when the sheriff levied on the land, Hobdy had slaves and other personal property, more than sufficient to satisfy all the executions then in the sheriff’s hands. Campbell, the sheriff, died during the spring Court of the year 1842.</p> <p>The defendant offered evidence conducing to prove that the lands levied on, at the time of the levy, were then of the cash value, at public sale, of ¡$1600 or $>1800.</p> <p>Upon this evidence, the defendant requested the Court to instruct the jury, that if the sheriff levied on lands sufficient in value, when estimated at what the same would sell for at public sale, for cash, to satisfy the executions in his hands, and that he sold it in time to make return thereon of the sales of the same, to the term of the Court to which the executions were returnable ; and that if, as soon as he found the lands did not sell for enough to satisfy the executions in hand, he forthwith levied on all the property of the defendant which he could find, and died before the next sale day, this was due diligence, and they ought to find for the defendant.. This was refused, and the jury was charged, that . if they found the sheriff levied the execution as set forth in his return, on the 1st of November, on the lands therein described, and that the lands were not sold until the first Monday of March thereafter, and that the proceeds went to satisfy older executions and levies on the same, and that the defendant in execution then had slaves and other personal property, sufficient to satisfy said execution, and other executions in his hands, and that he levied on the slaves on the 8th of March, 1842, as stated in his return* and then took a forthcoming bond for their delivery on the first Monday of April, 1842, a sale day subsequent to the return day of the execution, then the sheriff had not used due diligence, and they ought to find for the plaintiff.</p> <p>The defendants excepted to these several rulings of the Court, and they are now assigned as error.</p> <p>submitted the following points:</p> <p>1. The action is for not using due diligence in making the money; therefore, any evidence to prove that such diligence was used, was proper. The estimated value of lands in the neighborhood where they were situate, is the fact which will excuse or fi-x the liability of the sheriff, and therefore the question asked was proper.</p> <p>2. The charge asked for was proper, because it is the conclusion which the law draws from the facts in evidence. 'The sheriff is not bound to make a levy which, under all circumstances, must produce the sum to be raised. Indeed, he would be liable for an excessive levy, if he seized more than was probably sufficient for this purpose.</p> <p>3. If the charge asked for is objectionable, as asking a conclusion upon the facts, that given is equally so, for it takes all discretion from the jury, and pronounces that the facts disclosed amount to no defence.</p>

Debt on bond, by the defendant, against the plaintiffs in error. The defendant, Evans, permitted judgment to go by default, and Arrington pleaded in short by consent, fraud, and failure of consideration. Upon the trial of these issues, it appears by a bill of exceptions, that the bond sued on, was the last of four executed by Evans, to one Bolling, for the purchase of a tract of land, negroes, horses, cattle, &c., and that Arrington was the surety of Evans.

<p>1. An irregular judgment nisi upon a recognizance maybe vacated and set aside, even after a scire Jadas has been issued thereon, and the appropriate judgment may be entered nunc p-o tunc.</p> <p>2. An undertaking to answer to a charge for “ resisting process,” is sufficiently significant in a recognizance to indicate the offence intended to be charged, although the statute makes tire offence consist in “ knowingly and wilfully resisting or opposing any officer of this State in serving or attempting to serve, or execute, any legal writ or process whatsoever.”</p>

Writ of Error to the Circuit Court of Tuscaloosa county. The suit is by Sherrod, against Rhodes, and the declaration contains counts on three bills of exchange, as well as the common counts. The bills are described as having the following parties, to wit: the first, Rhodes as drawer, A. S. Christian as first indorser, for $6,034 67. The second, drawn by A. S. Christian; James T. Sykes as first, and Rhodes as second indorser; for $6,034 66. The third, drawn by Jas.

Assumpsit by the defendant, against the plaintiff in error.. The declaration was on a promissory note. The defendant relied on a payment, and set-off, and to prove the issue on his. part, proved that he resided on the plantation of the intestate, and transacted his business for him. That during his residence on the plantation, one John Leonard had done ditching on the plantation to the value of $350 or $400, with which the deceased was satisfied, and that Leonard was dead.

<p>On points referred from the Circuit Court of Greene.</p> <p>The defendant was indicted at the fall term of the Circuit Court of Greene for selling goods without license, as a pedlar. The indictment charged, that he “ did sell, absolutely, to one Henry 'Williams, goods, to wit: one bonnet and one pair of shoes, not manufactured in the State of Alabama,” &c. To this indictment, the defendant ple'aded “not guilty, and the statute of limitations.” The' cause was submitted to a jury, who returned a verdict, and assessed a fine of two hundred dollars; and a judgment was rendered accordingly.</p> <p>It was proved at the trial, that the defendant sold to Henry Williams the articles mentioned in the indictment in the spring of1842 — there was no proof that he had sold any thing as a pedlar since that time. To counteract the operation of the statute of limitations, the Attorney General introduced an indictment found at the.fall term of the Circuit Court, holden hi 1842,'which charged the defendant'with having sold, on the 5th day of September, 184.2, as a pedlar, to Joshua A. Lowe, “ one hair comb, without having first taken out a license, agreeably to law.” He then showed by the minutes of the same court, holden in the spring of 1845, that he entered a nolle prosequi upon this indictment, in consequence of a material variance between the allegation and the proof theil adduced ; the defendant refused his assent to the amendment of the indictment, and was thereupon recognized to answer another, to be preferred against him.</p> <p>The defendant then proved that Joshua A. Lowe was not present when he sold the articles specified in the indictment, in the present case. Upon this proof, it was decided that the first indictment, nolle prosequi thereon, and subsequent proceedings, prevented the statute of limitations from operating a bar ; although the defendant prayed the court to 'charge the jury, that if he was not recognized'to.answer, or indicted for, the offence alledged, within twelve months after its commission, the statute operated a' bar. The questions of law arising upon the ruling of the Circuit Court, have been referred as novel and difficult.</p> <p>cited Clay’s Dig. 439, §11; 562, § 27; Archb. Cr. L. 170, a.</p>

<p>On questions reserved as novel and difficult by the Judge presiding in the Circuit Court of Talladega.</p> <p>Blackwell was indicted at the spring term of the Circuit Comt of Talladega, for the year 1842, for an assault, with intent to commit a murder, -on one Morgan; and also, for an ordinary assault and battery. He pleaded — 1. Not guilty. 2. A former acquittal; and 3. A former discharge. These pleas, are pleaded in short, by consent, and the replications are in the same manner. At the spring term, 1845, he was tried upon the indictment, convicted upon the count for the assault' and battery, and sentenced to sixty days imprisonment in the: common jail, in addition to the fine assessed by the jury.</p> <p>At the trial, the defendant read in evidence the record of a cause entitled The State v. Blackwell, and proved himself to be the same person therein named. From this it appeared, that an indictment was returned a true bill at the fall term, 1841, against him, for an assault and battery upon one Anthony Morgan, on the 10th day of November, 1841. The judgment entry sets out, that the defendant came in his own proper person, and the prosecutor refusing to prosecute further, it was considered by the court, that the defendant be discharged on the payment of costs. It. further appeared, that at the spring term, 1842, the same indictment on which the said judgment of discharge was entered, was quashed, and the defendant held in custody to answer a new indictment ; which new indictment is the one upon which the conviction was had.</p> <p>There was evidence tending to prove that there was a quarrel between the defendant and Morgan. After some words had passed, Morgan drew his knife and rushed at the defendant with the seeming intention of cutting and threatening to kill the defendant; whereupon the defendant retreated, and in his retreat seized and presented a gun, then telling Morgan if he rushed upon him he would kill him, but the defendant did not shoot or attempt to shoot. Afterwards the defendant and Morgan fought, the gun not being used. Morgan, as a witness, swore that the defendant and himself never had but the one fight, as disclosed by the facts before •stated, and that this occurred in the month of June, 1841.</p> <p>On this evidence, the Court charged,</p> <p>1. That the record of the former indictment and discharge, read in evidence, afforded no defence to the defendant.</p> <p>2. That if the defendant presented his gun within carrying •distance at Morgan, in a rude manner, although Morgan may have been advancing towards him with a drawn knife, and 'although the defendant did not design or attempt to shoot, or-to strike with it, yet the defendant, under such a state of facts, was guilty of an assault, though not of an assault with intent -to murder ; also, that if Morgan did rush on the defendant with a drawn knife, the latter ought to have retreated out of Morgan’s way, if with safety he could have done so.</p> <p>The defendant then asked the following instructions, the proof being such as to warrant the taking the several positions before the jury.</p> <p>1. That if they believed an indictment for an assault and battery upon Morgan, was found at the Fall term, 1841, and then disposed of by the discharge of the defendant therefrom, and after the discharge the same indictment was quashed at the next term, for the omission of the Solicitor’s name to the indictment, it was a discharge of the subsequent prose*cution, although the defendant was then ordered to be retained in custody until a new indictment was found.</p> <p>2. That if the jury should believe the facts were as above stated, the former discharge, if for the same assault and battery, was a discharge of this indictment.</p> <p>3. That if the faots Were as stated in the first charge asked, then the discharge upon the first indictment, is a complete discharge to the second count of this indictment, if the jury should find that there was but one assault and battery.</p> <p>4. That if the jury believed Morgan drew his knife and rushed at the defendant, threatening to kill him, and the defendant then presented his gun, saying he would shoot if Morgan rushed on him, and the jury believed he did not de-</p> <p>‘ sign to shoot unless rushed on by Morgan; then he was not guilty of an assault.</p> <p>5. After the jury had deliberated for twenty-four hours, they returned into Court for further instructions, stating that they disagreed, merely, as to the evidence. On this subject, the Court said to the jury, they should counsel together, and try to find a verdict; that if there was a disagreement as to the evidence, it was more probable that the recollection, as to the facts, of a majority of the jury was right, than that of the minority.</p> <p>The defendant objected to these several rulings of the Court, and oh his motion, the presiding Judge reserved the questions of law arising on them, as novel and difficult, for the revision of this Court.</p>

<p>Writ of Error to the Circuit Court of Coosa.</p> <p>Debt, on sheriff’s official bond, for the failure of the sheriff to make the money on an execution of the beneficial plaintiff.</p> <p>The parties went to trial upon the general issue.</p> <p>From a bill of exceptions found in the record, it appears, that on the 6th October, 1841, a fim'i facias issued from the Circuit Court of Coosa county, in favor of Henry Lee against Stark Hobdy, for $141, besides costs — which came to the sheriff’s hands, and was levied on the 15th October, on certain lands, and returned that the land was sold on the first Monday of March, 1842, and proceeds applied to older fi.fa’s. Also, a levy on four slaves, on the 8th of March following, and bond taken. *</p> <p>The plaintiff further proved that Hobdy had in his possession, from the receipt of the execution by the sheriff, to the time of its return, slaves and other personal property to the amount of $2,500.</p> <p>The defendant proved the cash value of the land levied on at the time of the levy, and sale,, to be $2,640, but did not bring, at the sale, but' from three to four hundred dollars. The plaintiff proposed to ask the witness, the cash value of such land, at public sale; the court refused to permit the question to be put in this form, and the plaintiff excepted.</p> <p>Defendants also proved that the day of sale was rainy, the creeks high, and not more than ten or twelve persons present, and not as many as usually attend such sales, but the sale was fairly conducted. The proceeds of the sale being exhausted by elder executions, a new levy was made on negroes, to the value of $700.</p> <p>The plaintiff introduced, and offered to read in evidence, a deed of mortgage upon the lands levied on, executed by Hobdy, the 2d February, 1838, to secure the payment of upwards of $1400, which was recorded in the clerk’s office of Coosa county, upon the following probate :</p> <p>“ 1, W, D. Simpson, Notary Public, do hereby certify, that on the 3d February, 1838, Stark Hobdy personally appeared before me, and acknowledged the within instrument to be his free aqf and deed, given and granted for the purposes therein specified. Given under my hand and seal this 3d day of February, 1838. W. D. Simpson, [seal,</p> <p>The defendant objected to the reading of the mortgage, because the probate was insufficient to authorize its registration, and because, if properly recorded, it was not notice to the sheriff; and the court sustained the objection. The plaintiff then offered to prove, that the sheriff had actual notice of the mortgage, which, _on-motion of the defendant, the court excluded, and the plaintiff excepted.</p> <p>The plaintiff then read to the jury six executions, against Hob'dy, for $783 47, besides costs, all of which were in the sheriff’s hands at the same time with his, the five first being older than his, and the last of the same date — the proceeds of the sale of the land being appropriated to the satisfaction of those prior in date to that of the plaintiff. It was further in proof, that on the l£th January, 1842, an execution against Hobdy, from the Circuit Court of Montgomery, for $1,078, came to the sheriff’s hands, which was levied on one of the slaves previously levied on, named Mingo. A witness proved the value of the slaves so levied on to be $750, and that they all belonged to him except Mingo, valued at $100. That he had hired them to Hobdy, who was his son-in-law, and were levied on whilst in his possession. That he joined Hobdy in a forthcoming bond for their delivery on the day of sale, the .first Monday in April, 1842. That on the day of sale, the sheriff having died, no one was present to receive them, and they were returned to the defendant, Hobdy, who shortly after left the State, carrying them with him, and leaving no property to satisfy the execution. The slaves had been in Hobdy’s possession two years previous to the levy, and the. claim of the witness to the slaves was not disclosed by him to the sheriff. It was also proved, that the sheriff had paid the attorney of the plaintiff $25 on account of the execution, and. promised to ■pay the residue at court.</p> <p>The plaintiff’s counsel moved the court to charge the jury, that if they believed from the evidence, that the defendant in execution had personal property in his possession,' of value-to the amount of $2500, during the time said fi. fa. was in the hands of the sheriff, which might have been levied with ordinary diligence, and that it was carried off by the defendant in execution, out of the State, a few days after the return term of said fi. fa., and that the lands shown in the levy of the plaintiff’s fi. fa. Avere not sold until the first Monday in March, 1842, and brought only the sum of three or four hundred dollars — and if the jury should further believe, that in consequence of the defendant in execution running off his property, the plaintiff has been prevented from making his money, then the plaintiff is entitled to recover the amount of his execution. The court refused to give this charge, in the terms asked, and charged, that to make the sheriff liable, on account of the failure of the land to bring its estimated cash value, it must appear that the plaintiff was damaged by that failure, but if the sheriff immediately after the sale of the land, levied on personal pro-: perty in possession of defendant, to an amount sufficient to satisfy plaintiff’s execution, although it might turn out after-wards, that said property did not belong to defendant, in consequence of which the plaintiff Avas damaged, the sheriff could not be made liable.</p> <p>The plaintiff further moved the court to charge, that if the lands were worth, at the time of the levy and sale, $2,640 in cash and only three or four hundred dollars was bid for them, it was his duty to return the land unsold, for want of bidders, and obtain the further order of the court, and that he was guilty of negligence in not doing so, which charge the court refused, unless fraud in the sale was proved. To all which the plaintiff excepted, and which he now assigns as error.</p>

<p>1. Where, in an action upon a promissory note, the indorsement on the writ states the amount to beless than itreally is, and a declaration is filed conforming to the indorsement, it is competent for the Court, under the general powers conferred by statute, to permit an amended declaration to be filed, describing the note with accuracy.</p>

Writ of Error to the County Court of Perry. Lockhart & Massey were summoned as garnishee®, in a suit commenced by attachment by M. A. The plaintiffs filed an affidavit, in which one of the firm made oath, that the answer of the garnishees was incorrect, and that he had reason to believe, and did believe, that the notes so received by the garnishees for collection, were, when received, the property of Johnson & Patton, and not the property of the said William Dealing, and…

<p>1. P agreed with H, to purchase a slave of Mm, at the price of $600, in Alabama bank notes, and paid one hundred down, the slave remaining in the possession of H. P afterwards tendered the amount in Georgia bank notes, which H declined to receive, but told P to take the money and exchange it for Alabama bank notes, and if he could not do so, he would pay back the money. P afterwards. sued the representative of H, for the $100. Held, that this was, in effect, an unconditional rescission of the contract, and the failure of P afterwards to tender the Alabama notes, and demand the slave, a proof of his inability to make the exchange.</p>

<p>1. Where the names of the parties to the suit are not fully stated upon the margin of thg judgment entry, the defect is amendable by a reference to the papers in the cause, and may be considered as amended, although the amendment is not in point of fact made ;and for the purpose of informing the court that the judgment was intended to apply to the particular cause, extrinsic evidence is admissible.</p> <p>2. The prochien ami of an infant plaintiff, in whose favor a judgment is rendered, is not authorized to receive the amount thereof and discharge the defendant</p>

<p>Writ of Error to the County Court of Lawrence.</p> <p>Information for bastardy against Austin, at the relation of Mary Ann Brooks.</p> <p>The caption states the examination before a justice of the peace of Lawrence county, to be of Mary Ann Brooks, single woman, taken upon oath, the 3d of September, 1841. She declared that on the 8th of August, then last past, she was delivered of a female bastard child, and that William Austin of the said county did get her with child of the said bastard child.</p> <p>On this a warrant was issued against Austin, and after his arrest, and the examination of the complainant, he was required to enter into bond for his appearance at the next term of the County Court.</p> <p>In the County Court, the suit is stated as between the Governor and Austin, and the parties having appeared, the Court directed an issue to be tendered to the defendant in these words :</p> <p>“ The Court, in this case, propounded to the jury to inquire whether the said William Austin, senior, the reputed father of a certain child, a daughter of Mary Ann Dixon, late Mary Ann Brooks, is the real father of said child or not.”</p> <p>To this issue, thus tendered, the defendant demurred. The Court overruled the demurrer, and required him to plead over. This he did, by asserting that he was not guilty of being the father of the bastard child in this cause named. The jury returned a verdict, “ that they find the defendant to be the real father of said child.” Whereupon judgment was rendered that the said defendant be condemned to pay the sum of fifty dollars a year for ten years, towards the maintainance and education of said bastard child of the said Mary Ann Dixon, late Mary Ann Brooks ; and that the said defendant enter into bond and security for the due and faithful payment of the said sums of money yearly, as by the statute is required ; and that he pay the costs, &c.</p> <p>To revise these proceedings he sues out a writ of error, in which Richard C. Pickett, the Judge of the County Court is> made the party defendant, and here assigns as error,</p> <p>1. That the Court erred in overruling his demurrer to the issue tendered.</p> <p>2. That the verdict is not responsive to the issue.</p> <p>3. That the judgment is variant from that authorised by statute.</p> <p>insisted that it no where appeared that Mary Ann Dixon and Mary Ami Brooks are the, same person, so that the defendant may have been the father to a child of the former without being guilty of the act complained of. The verdict is not responsive, because the sex of the child cannot be ascertained from it. And the judgment is for the money finally, as well as to require the defendant to give bond.</p> <p>argued— that the complaint and issue was sufficient. There is no necessity to allege the name of the child, as its sex affords a more definite mode of description. [Commonwealth v. Per-land, Brown P. It. 59.] If the supposed coverture of the mother is the matter objected to by the demurrer, t|iis is of no avail, for the inference from the record is, that the complaint was made by her when a single woman. The subsequent coverture does not avoid the proceedings, and if any advantage could be claimed from it, it should have been disclosed by plea in abatement. [Sword v. Nestor, 3 Dana, 453 ; Saffery v. Austin, 8 Verm. 70 ; Poulk v. Slocum, 3 Blackf. 424; Wilbar v. Crane, 13 Pick. 284.] The issue conforms substantially to the statute. [1 Kent’s Com. 462 ; Dwarris on Stat. 710, 717.] The verdict is responsive to the issue, and every fact asserted and denied, is concluded by it. [Toulmin v. Lessesne, 2 Ala. Rep. 359 ; McRae v. Colclough, ib. 743_] The form of the judgment is the same in effect as that in Trawick v. Davis. [4 Ala. Rep. 328.]</p>

Assumpsit by plaintiff, against defendant in error, to recover a year’s wages as overseer. Prom a bill of exceptions, it appears that the plaintiff agreed, to serve the defendant as an overseer, at the price of three hundred dollars a year — that he commenced in January, and remained until the 1st June after, when he was dismissed hy the plaintiff.

<p>Writ of Error to the Circuit Court of Talladega.</p> <p>This was an action of assumpsit, at the suit of the defendant in error. The declaration contains two counts. 1. For money had and received. 2. Upon an account stated. To which the defendant pleaded, 1. Non-assumpsit. 2. Payment. 3. Set-oif. Issues were thereupon joined, and the cause submitted to a jury. The plaintiff adduced a letter written by the defendant, of the following tenor, viz : “ Mardisville, Alabama, 30th Oct. 1843. Green P. Rice, Esq: Dear Sir — When your letter arrived I was absent from home. In reply, I have to state, that Mr. William P. Terry gave me Mrs. Turner’s debt on her relations in Virginia, as part indemnification for my liability for him as his security as guardian for the late Mr. Weldon’s children. This is the way it was given me, and the way it was received. After a great deal of trouble and expence, I succeeded in collecting three hundred dollars; and sent a bond of indemnification for Mrs. Terry to sign, and which, Smith, a friend in Virginia, was to sign also, But that bond has never been returned to me, and I of course have collected nothing more. My agent wrote me that when I would send the bond, one hundred dollars more was ready to be paid, and that some two hundred dollars additional, he thought would be paid, or would be ready to be paid about this time. I have not heard from there since Dec. last.</p> <p>“If Mrs. Turner will send me the bond signed properly, that I sent Mr. Terry, I will endeavor to collect the balance of the money that is coming to her, and pay it over when collected. As to the amount collected I insist on -its going towards the claim, it was put in my hinds for, after deducting for the amount of my expences, and reasonable pay for my trouble.</p> <p>I am your ob. st,</p> <p>Jno. Hardie.”</p> <p>This being all the evidence adduced, the defendant demurred, and the plaintiff joined in demurrer; and the demurrer being overruled, the cause was again submitted to the jury to assess the plaintiffs damages.</p> <p>On the inquiry before the jury for the purpose of. assessing the damages, the defendant proposed to prove by a witness adduced, the amount of his expences in collecting the money, and what would be a reasonable allowance for his trouble in attending to the business; but the plaintiff objected to the Her admission of such testimony, objection was sustained, and thereupon the defendant excepted.</p> <p>The defendant prayed the court to charge the jury — 1, That if the defendant collected the money under an agency, the plaintiff could not recover unless it was proved that there had been a demand and refusal before suit was commenced. 2. That it was incumbent upon the plaintiff to satisfy the jury, by reasonable proof, of the amount of damages sustained by her, and if the proof did not ascertain the amount due, with reasonable certainty, they should find no damages. These charges were refused, and the jury were instructed, that they should allow the defendant a reasonable charge for his trouble and expense, looking alone to the proof; that they could make no allowance unless the proof warranted them in adjusting it; that they could not take into the account their own knowledge of the value of such services, and expenses, but must be governed by the testimony — that the letter alone authorized them to find damages for the plaintiff. The jury were further instructed, that the law required them to find interest on the amount they found to be due, from the date of the letter. To the refusal to charge, and the charges given, the defendant excepted. The jury assessed the plaintiff’s damages, anda judgment was accordingly rendered.</p> <p>made the follow ing points': 1. The defendant received the demand upon which he collected the money, from Terry, as a pledge, and he was entitled to hold it as such. As to the honesty of the transaction, so far as the defendant is concerned, it is not questioned; and the letter does not show that he is indebted to plaintiff. 2. It should certainly have been allowed to defendant to introduce proof to diminish the recovery against him. This is allowed upon a writ of inquiry, which is analagous to the proceeding in the present case. The object of submitting the question of the extent of damages to the jury is, that they may be ascertained, and proof to the point is admissible by both parties.</p> <p>insisted, that the defendant’s letter ascertained a certain indebtedness, and there was no necessity — in fact it was irregular to submit the question of damages to the jury. [4 Am. Com. L. Cas. 109, and cases there cited; 4 Burr. Rep. 2226 to 2232.] This being the case, there could be no available error in the rejection of evidence, or in charging the jury. The defendant could not claim a deduction for services, unless he had pleaded the general issue or set off, [8 Porter’s Rep. 551;] otherwise, after having been unsuccessful on the demurrer, he might defeat a recovery by showing his demand exceeded the plaintiff’s, which could not be allowed. [3 Blackf. 398.] The defendant was liable to pay interest, and was not .entitled to be compensated for trouble and expenses; for he was not the plaintiff’s agent, but collected the'money by Terry’s direction, who had no interest in the business.</p>

Writ of Error to the Circuit Court of Lawrence, Detinue, by Jackson against Gewin, to recover certain, slaves named in the declaration.

<p>I. It is not necessary; that one in possession of land, for which he has a deed, should deraign the title of his grantor, and show that he had right to convey, to entitle him to the protection of the statute, forbidding a freeholder to bo sued out of the county of his permanent residence. Otherwise, it seems, if he is not in possession.</p>

Writ of Error to the Court of Chancery sitting in Talladega.

<p>1. When a husband in possession of land under a title bond from his vendor, having paid the purchase money, absconds from the State, and his wife having afterwards obtained the legal title from her husbands vendor, and conveyed the land during coverture, the husband, notwithstanding, may maintain ejectment against his wife’s vendee, on his possession, because the deed of the wife is entirely void.</p> <p>2. A divorce a vinculo, obtained by the wife subsequently to the execution of the deed by her to the defendant, has no offcct on the suit.</p>

<p>1. Upon an appeal, or certiorari, from a justice’s court, there can be no change of the parties; they must be the' same as in the inferior court.</p> <p>2. A confession of judgment before ajustice of the peace, is a release of errors, after which it cannotbe carried to an appellate court, either by appeal or cei-tiorari. If the confession was by mistake, or procured by fraud, it seems a Court of Chancery would afford relief.</p>

Writ of Error to the Circuit Court of Cherokee. This cause was instituted by the plaintiff in error, before a justice of the peace, for the recovery of the amount of anote for the sum of forty dollars. A judgment was rendered in favor of the plaintiff, and the case was thereupon removed by appeal to the Circuit Court, where a trial was had by a jury upon issues joined on the pleas of non assumpsit, want of consideration, and failure of consideration.

Writ of Error to the Circuit Court of Limestone. Detinue,” by Hodge against Thompson to recover a slave.

<p>1. When the sheriff, under the act of 1828, returns the copy of an execution, with the levy returned on the original, his certificate is proof of all the facts, precisely as his return upon an original execution.</p> <p>2. When, in such a case, the venue is changed, the copy so made by the sheriff, may be certified by the clerk, and will have the same effect as in the county from which tire venue was changed. If other papers are alledged to be substituted, it devolves on the party making the objection to establish it.</p> <p>3. Inferior cumulative evidence to the same point, is no reason for reversing a judgment, though improperly admitted.</p>

Writ of Error to the Circuit Court of Lowndes. The plaintiff in error was indicted, together with Reuben Harrison and Richard K. Harrison, for an assault and battery upon the body of Robert J. Lawrence, with intent to kill and murder, &c. R. K. Harrison, and Hawkins having pleaded “not guilty,” were tried by a jury, who returned a verdict of guilty, as to the latter, and acquitted the former; whereupon judgment was rendered accordingly, and Hawkins was adjudged to five years…

Trover, by Manning against Tatum and Manifee, to recover the value of a slave alledged to have been converted by him. The plaintiffs in error were made parties to'the suit, as the personal representatives of Menifee, he having died' during its progress.

ry Court of Barbour. The hill was filed by the ' defendant in error, arid states that the Bank of Columbus recovered a judgment against Thomas Gray, and others, in the County Court of Barbour; that on the 28th August, 1843, an execution issued on the judgment, and was levied on a negro woman, as the property of Gray; that' Gray, as the next friend of his wife, interposed a claim, and gave bond to try the right of property, with complainant as his surety in the claim bond;…

Writ of Error to the Circuit Court of Lowndes. This was an action of assumpsit, at the suit of the plaintiff in error, against the defendant, as the guarantor of a promissory note. The declaration contains six or seven counts, but as the fourth is the only one in question, we will not notice the others.

<p>Appeal from a decretal order of the Court of Chancery for the 19th District</p> <p>The case made by the bill is this:</p> <p>In 1814, at Charleston, South Carolina, Thomas Bennett,the elder, made his last-will, whereby he devised a lot of land, situate in Charleston, and bequeathed two slaves, as well as $3,000 in money, to Thomas Bennett, the younger, in trust, that the rents and uses of the lot, wages and labor of the slaves, and the interest, avails and produce of the money, should go to, and be allowed to, and for the support and benfit of John S. Bennett and his wife, jointly, during their lives; and after the death of either, to the survivor in the same manner ; and upon the death of the survivor, to the children of John S. Bennett, who shall survive him and his then present wife, and to his, her, or their assigns forever. But in case there should be no such surviving child or children, then to revert to the right heirs of the testator. The complainants charge, that the testators intention was, that the legacy was to be held by JohnS. Bennett, his son, free from his debts, contracts and engagements; also, that the will was deemed fully effectual for that purpose, by the laws of South Carolina. After the death of the testator, the will was duly admitted to probate, in South Carolina, the legacy assented to by the executors, and the trust assumed by Thomas Bennett, the younger, who continued to .act until the year 1834, during which he resigned the trust, .and the complainants being then substituted in his stead, assumed the execution of the trusts, and continued to discharge the duties of trustees when this bill was filed.</p> <p>*</p> <p>Sometime in 1834, John S. Bennett, being about to remove with his family to this State, applied to Bennett, the trustee, for him to invest the funds so bequeathed in slaves, and ten slaves were purchased hy the trustee, for the sum of $3,360, to be held under the trusts of the will; at the same time the complainants received from the trustee $1,052, of the trust funds, to be invested in buying and settling lands, for the benefit of the trust. No bill of sale was executed by the trustee for the slaves, but merely an account current of the trust estate with himself, showing a balance in his hands to the credit of the trust, of $1666.</p> <p>The first wife of John S. Bennett died in 1817, leaving two children surviving, who are now respectively the wives of the complainants, and he afterwards married another, who was living when the bill was filed.</p> <p>On the 23d March, 1836, the complainants assert that John Bennett was indebted to them, as trustees, in the sum of $1052, which he had received from the trustee, Thomas Bennett, as well as $430 which he had received on the sales of the two slaves specifically bequeathed to the trust, and being then in the possession of a plantation in Dallas county, and having expended those sums of money in its settlement, conveyed the plantation and the slaves so purchased, with the trust funds, and one other slave, to the complainants. This deed was recorded in the County Court of Dallas, and the complainants assert, was intended to meet the same conditions as set forth in the will of the elder Bennett. , The deed is exhibited, and purports to be in consideration of $10,000 paid by the complainants, and of the natural love and affection which he bears to his children, nine in number. The trust declared, is for the use of the grantor and his wife, during their joint lives, with remainder to the survivor, but to pay $3000 each-, to the respective wives of the trustees, on the death of the grantor, which the deed asserts is in conformity with the will of their grandfather, Thomas Bennett. Each of the other children, as it became of age, or married, was to receive the same sum, and the residue, after the death of the grantor and his wife, to be equally divided between the surviving children and tlxet issue of tho.se who should be dead.</p> <p>Another deed was executed by John S. Bennett, on the 19th October, 1839, conveying eight other slaves to the complainants, in trust, that Bennett and his wife should remain in their possession, and use, during their joint lives, and the survivor, during his or her life, with remainder to the children then living, of the said Bennett, and such as should thereafter be bom. The consideration expressed is $5000, and natural love and affection, but the complainants assert the true consideration to be, the receipt by Bennett, since the 18th of November, 1834, of $1220, which he had received at various times, from the trustee, for the principal and balance due the trustee, and $445 interest thereon. This deed is not alledged to have been recorded, and the same allegation is made, that it was intended to be in conformity with the trusts declared by the will of the elder Bennett.</p> <p>Rogers and Gray obtained a judgment against John S. Bennett, in the District Court of the United States, and Lindsay, one of the defendants, is alledged to pretend to have the control of it, by having paid to Rogers and Gray the amount of it, as an indorser of the note upon which it is founded. Lindsay, at the filing of the bill, either had, or was about to levy on the slaves conveyed by the deeds of 1836 and 1839.-The complainants offered the deputy Marshal, to procure a bond to be executed to try the right of property to said slaves, which the said deputy said he would not" receive, as he was instructed to accept none but a bond for the forthcoming of the slaves at Mobile.</p> <p>The bill prays that Lindsay and the Marshal of the United States may be restrained by by injunction from proceeding against the slaves so conveyed to the complainants, and for further relief.</p> <p>Arr injunction having been awarded, Lindsay answered the bill, denying any knowledge or information of the facts stated, except as to the execution of the deeds, and asserting them to be covinous, and intended to hinder, delay and defraud creditors. He also asserts a willingness to bring in the principal of the legacy, to be disposed of by the court, asserting that he is entitled to satisfaction out of all the uses vested in Burnett. He prays his answer may be considered as a demurrer to the bill, as containing no matter of equity, and pleads that the District Court of the United States, is the only one which can restrain him in the pursuit of satisfaction of its judgment.</p> <p>The Chancellor dissolved the injunction, on the ground that the complainant had adequate relief at law, and from this decretal order the defendants took an appeal.</p> <p>made the following points: *L The State Courts have jurisdiction to enjoin a party from proceeding to enforce a judgment in another court. [1 Kent’s Com. 410 ; Brown v. Ogden, 6 Halst. 370; Slocum v, Maberry, 3 Wheat. 2-, 7 Mart. Lou. Rep. 416.</p> <p>2. The court of equity has jurisdiction under the circumstances stated by the bill. [Calhoun v. Cozzens, 3 Ala. Rep. 498.</p> <p>3. The answer not denying the circumstances out of which the equity arises, cannot dissolve the injunction. [Givens v. Frost, 4 Ala. Rep. 721.]</p>

The defendant was indicted for selling goods as a pedlar. The indictment is a follows: The grand jurors, &c., upon their oath, present, that John May, late of the county of Greene, on the 1st day of March, 1843, in the county aforesaid, on the day and year aforesaid, did sell absolutely, one piece of Jeans cloth, to one Wm. C. Logan, against the peace' and dignity of the State of Alabama.

Writ of Error to the Circuit Court of Limestone. This was an action of trover, at the suit of the defendant in error, for the conversion of a horse. The defendant pleaded not guilty, and justification, and issue was thereupon joined, with leave to give any special matter in evidence ; a verdict was returned for the plaintiff, for $54 90, and judgment was rendered accordingly.

Writ of Error to the Circuit Court of Sumter. Debt upon the official bond executed by Wm. Johnson, as sheriff of Sumter county, for the due performance of the duties of that office.

Tx-ie bill was filed by the defendants in error, on the 9th March, 1842, in which they alledge, that on the 2d May, 1834, Benjamin F. Copeland, being in possession, and claiming to be the owner, conveyed by covenant of warranty, to Reinsen & Jude, all that portion of the Holman estaté in Mobile, which lies east of Commerce street, (and which is particularly described,) for the consideration of $16,000; that Remson & Jude, on the 10th April, 1835, sold the same to…

Writ of Error to theJJircuit Court of Pickens. This was a suit commenced before a justice of the peace, on a promissory note made by the plaintiffs in error, together with Uriah Kerby, on the 8th January, 1844, by which they' promised to pay to the defendant the sum of $25, on the 1st day of April next thereafter, for the maintenance of the child of Elizabeth Morehead, provided the child should live.

Motion by the plaintiff, for this Court to issue a supersedeas to the sheriff of Talladega county, or such other remedial writ as may be proper under the facts disclosed, to set aside a writ of execution issued at the suit of the defendant.

Detinue by the plaintiff in error, for a slave, against the defendant, who claimed title under a sale by the sheriff, who sold the slave by virtue of an execution against Thomas P. Terrill. From the bill of exceptions, it appeared that Thomas P. Terrill had been in the possession of the slave, from the 1st March, 1837, to about the 1st January, 1843; that he is the son of the defendant, and resided in this State, and that the defendant resided in South Carolina.

Writ of Error to the County Court of Mobile. This was a proceeding commenced before a justice of the peace, to try the right to-• a female slave, named Penelope, which had been levied on as the property of Duncan Wilkinson, to satisfy an execution at the suit of the defendants in error, against D. Wilkinson & Co., and to whom the plaintiffs in error asserted a claim pursuant to the statute.

Writ of Error to the County Court of Dallas. This suit is commenced by attachment, by Parish & Co. against Burt, returnable to the February term, 1844. The affidavit is made by one styling himself the agent for the plaintiffs, whose names are set out, and the debt is stated as $2,000, with interest from the 1st January, 1844. The cause of suing out the attachment is, the non-residence of the defendant. Bond with surety was given by the agent in the penal sum of $5,000.

From a bill of exceptions, it appears the defendant introduced as a witness, Edmund Alexander, an heir and distributee of the intestate, who had received a portion of his distributive share of the estate, and had not given to the administrator any refunding bond; that the witness had executed, and delivered, a release, and relinquishment of all his interest in the residue of the estate, to the defendant, the sole administrator of the estate.

Writ of Error to the Circuit Court of Perry. The plaintiff in error was summoned as a garnishee, at the instance of the defendant in error, upon an affidavit that he was supposed to have effects of Archer B. W. Hopkins, who was a judgment debtor of the plaintiff below.

<p>1. When one. joint maker of a promissory note is the administrator of his co-maker, he is entitled, when sued, to set off against the payee any debt which the latter owes to the deceased co-maker.</p>

<p>Error to the Circuit Court of Greene,</p> <p>Debt, by the defendant in error against the plaintiff in error, on a sealed note, for the use of one Adams.</p> <p>Pleas, the “ general issue, failure of consideration, payment, ¡and setoff, in short, hyconsent.”</p> <p>Upon the trial of the cause, the defendant proved, that he purchased from Huntington, two slaves at $1400, one thousand dollars of which was paid in cash, and the note sued on given for the residue. That at the time of the purchase there were two mortgages on the slaves, one in favor of Adams, for whose use the suit is brought, and the other in favor of one Boothe, both of which were in force, and unsatisfied, Boothe’s being the eldest, and Huntington agreed to satisfy both mortgages'. At the time- of the sale, the negroes were in the possession of Adams, and the note sued upon, notwithstanding the understanding that it should go to Boothe, was given to Adams by Huntington, in satisfaction of his mortgage, who then gave up the negroes to Huntington, by whom they were delivered to the defendant. Huntington did not discharge Boothe’s mortgage, and the defendant was compelled to pay Boothe upwards of $600, to relieve the slaves from the lien of the mortgage.</p> <p>Upon this testimony, the defendant moved the court to charge, that if the contract between the plaintiff and defendant, was, that the note should be applied to the payment of Boothe’s mortgage, so as to perfect the title, and it was not so applied, and Boothe’s mortgage was not otherwise satisfied by the plaintiff, and that defendant had been compelled to pay a larger sum, than the amount of the note, to extinguish his mortgage, the plaintiff could not recover.</p> <p>Also, that if the contract between the plaintiff and defendant was, that he was not to pay the note, unless the plaintiff paid off and extinguished Boothe’s mortgage, and he had not done so, he could not recover. Both of these charges the court refused to give, and the defendant excepted. These matters are now assigned as error.</p> <p>cited 1 Ala. R. 41.</p> <p>The court correctly refused the first charge asked for, because, if Pippin purchased with a knowledge of Adams’ possession, and rights, as appears from the bill of exceptions, Adams cannot be prejudiced, by a contract between the defendant and Huntington. The defence cannot be set up, because it is in the nature of a cross action*for the fraud. The defendant purchased with a knowledge of all the facts and circumstances. [2 Kent’s Qpm. 478;. 1 S. & P. 80; 1 Ala. R. 645.]</p> <p>Defendant cannot create a defence, by voluntarily extinguishing even a paramount title. (1 S. & P. 223 ; 4 Ala. R. 700.] Nor can he defend, by proving a want of title in the vendor. [3 P. 126; 19 Johns, 77; 1 Mass. 65 ]</p> <p>The facts of the case are, that the bond was made, and delivered to Adams, before he delivered the slaves, and Huntington must be considered as the agent of the defendant, for this purpose. The delivery of the slaves was a valuable consideration.</p> <p>The plea to invalidate the consideration of the bond, must be a special plea, under the statute. [Clay’s Dig. 340, <§> 153.] The rights of Adams will be protected, if he received the note without notice of the defence.</p> <p>Upon the whole case, it is clear, that the defendant cannot succeed, and he is not prejudiced. [1 S. & P. 81; 8 Porter, 546 ; 9 Id. 403; 3 Ala. R. 599.J</p>

Writ of Error to the Circuit Court of Barbour. On the 27th January, 1844, the defendants in error caused a writ of capias ad respondendum to be issued against the plaintiff; and on the 29th of the same month issued an ancillary attachment against his estate upon affidavit, that he was about to dispose of his property fraudulently, with intent to avoid the payment of the debt sued for.

Writ of Error to the Circuit Court of Mobile. These causes, in the court below, were submitted on the following statement of facts, to wit: The Mayor, Aldermen, and Common Council of the city of Mobile, pursuant to the act of 14th January, 1844 pp. 1844, 175, passed an ordinance for the collection of a city tax; the assessors of taxes were duly elected and qualified; they duly assessed the steamboat New World, the property of William Stewart, the defendant in one of the…

The bill was filed by the' defendants in error, and alledges that they became the sureties of one George W. L. Haynes,as the administrator of Stephen S Haynes, late of Madison county. That on — day of June 1841, the administrator made a final settlement, and a decree was rendered in favor' of the defendant in error, a- minor, and distributee of the dedeceased, for $965 3T, at which time one Richard B. Pur-dom was guardian, ad litem.

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

Writ of Error to the Circuit Court of Montgomery. Debt, by Huie against Pinkston, as the administrator of Wm. Gause, on a bond, in the penal sum of $6000, executed in the year 1839, by one John Clisby, as principal, with Wm, and B. J. Gauze as sureties.

<p>Error to the County Court of Mobile.</p> <p>Motion in the court below, to quash an execution, and levy, and set aside the sale made thereon.</p> <p>On the 14th June, 1836, one Porter recovered a judgment against Wm. D. Stone, for $1123 34, upon which an execution issued, and was enjoined by the Chancellor. On the 7th June, 1841, the Register certified that the injunction was dissolved, and on the same day an execution issued on the judgment, returnable to the 2d Monday in June, 1841. On the day it issued, the sheriff levied it on certain land of the defendant, and returned it, that the land was not sold for want of time. On the 23d June, a venditioni exponas issued, upon which the sheriff returned that he had sold the land to the plaintiff in error, for $650.</p> <p>At the February term, 1842, a motion was made to quash the execution for irregularity, and to set aside the sale, which motion, at a subsequent term, was granted by the court. This is now assigned as error.</p> <p>contended, that the statute requiring fifteen'days, between the teste and return of the writ, was directory merely, but if it was an irregularity, the motion should have been made before the sale under the execution,</p> <p>Further, that if the execution was quashed for irregularity, it did not affect the sale, which was good, although the execution might be quashed. He cited 3 Howard, Miss.' Rep. 66; 2 Dun. P. 816 ; 9 John. 388; 3 Ala. R. 109.</p> <p>to show that the execution was irregular, and properly quashed, cited 4 Ala. R. 650. He admitted, that the quashal of the execution would not affect a bona fide purchaser, who has paid his money, who has receivéd a deed, and had no notice of the irregularity; and that it was incumbent on him to show these facts, a prima facie case being made against him, by showing the irregularity of the execution. He cited 4 Dana, 98; 8 Coke, 96, 143; T. Raymond, 73 ; Bing, on Ex. 265; 6 Porter, 432; 9 Id. 679; 2 Story’s Eq. 715.</p>

Writ of Error to the Circuit Court of Talladega. This cause was called for trial on the 9th day of the term, the plaintiff announced himself ready for trial, but the defendant insisted, that the cause was not pending in court, but had been disposed of by an order of the preceding term, which order is as follows, viz : “ This day came the parties by their attornies, and the plaintiff takes a non-suit; afterwards, on plaintiff’s motion, and on sufficient cause being shown, it…

Writ of Error to the Circuit Court of Lowndes. Slander by Easly,against Moss, for speaking these words to his overseer: “I want you to be particular about my hogs and sheep, as Easly is in the habit of marking them, and I have lost from fifteen to twenty head of them every year since Easley has lived on the place.” r~ At the trial, on the plea of not guilty, the plaintiff introduced a witness, who stated, that a month or two before this suit was brought, he was the…

<p>1. Where one had the pre-emption right to enter certain land, which another agreed to advance the money and enter, provided the entry was made in his own name, and that upon being repaid the purchase money, he would convey the land — Held, that this contract, if in writing, and signed by the party to be charged, could be enforced after a payment of the purchase money, either in equity, for a specific performance, or by action at law, to recover damages for its breach.</p> <p>2. It is not necessary in such a suit, to alledge in the declaration, that the contract was in writing, but it must be proved on the trial.</p>

Writ of Error to the County Court of Mobile. This was an action of assumpsit, at the suit of the defendant in error against the plaintiif. The declaration contains-two counts, viz : 1. For money paid, laid out and expended, 2. For money had and received. The cause was tried upon the general issue, a verdict returned for the plaintiif for $818 21, and judgment rendered accordingly. On the trial,, the defendant excepted to the ruling of the court.

<p>Writ of Error to the Circuit Court of Wilcox.</p> <p>Assumpsit by Murphy & Pierson, as the indorsees of a note, made by C. Pritchett, against Gee ' as the indorser. The note is dated 21st April, 1842, for the sum of $750, payable on the 1st March, 1843, to Sterling H. Gee, or order, and by him indorsed to the defendant, and by him to the plaintiffs.</p> <p>The declaration sets- out the note and indorsements in the usual mode; avers that the note was not paid at maturity, and that the plaintiffs commenced suit against the maker, on the 3d of March, 1843, in the Circuit Court of Clarke county; that county being the residence of the maker, and that court the first to which he could be sued. It then proceeds to aver, that the said suit was prosecuted in due form of law, against the maker, and that afterwards, on the 31st March, 1845, judgment was rendered in that suit in fayor of the maker, against the plaintiffs.</p> <p>Prom these facts the liability of the defendant is deduced, and the declaration concludes with a super se assumpsit and breach.</p> <p>The defendant demurred, and the court sustained the demurrer and final judgment was given for him.</p> <p>This is now assigned as error.</p>

<p>Motion by the defendant, for a stay of proceedings upon the writ of error, upon the grounds, that the plaintiff had coerced payment of the judgment below, by execution, after he had sued out his writ of error — which being supported by the affidavit of the sheriff, a rule nisi was ordered to issue. The plaintiff failed to appear and answer, and a motion was then made, by T. Williams, for the defendant in error, that the rule be made absolute.</p>

<p>1. In an action against the indorsers of a note, which purported to have been indorsed under a power of attorney, the defendants denied the indorsement, and demurred to the evidence, which recited that the' execution of the power, as well as the note on which the plaintiff sought to recover judgment, were proved; it will be intended, as the making of the note was not a point in issue, that the indorsement, and not the execution of the note, was in fact proved.</p> <p>2. Where an attorney is invested with an authority, in writing, to indorse notes for, andón account of his principal, it confers power to indorse notes of which the principal is ostensibly the legal proprietor, and it devolves upon the principal, in such case, to show that tire authority has been abused, or transcended.</p> <p>3. The statement contained in a notarial protest, that tire notary had sent notices of the dishonor of the paper, addressed to the parties at a particular place, is no proof, even on a demurrer to evidence, that the notices were properly directed; this fact must be shown by proof, independent of the protest.</p> <p>4. Semble: it cannot be intended, because one is authorized to indorse notes, that he is also an agent for the purpose of receiving notices of their dishonor.</p>

Questions referred as novel and difficult, by tbe Circuit Court of Tuskaloosa. The defendant, Glaze, was indicted at the fall term, 1843, for living in adultery with one Cynthia Gage.

The bill was filed by the plaintiffs in error, and alledges, that in April, 1841, the Orphans’ Court of Benton, made an •order for the sale of the real estate of Owen Jenkins, deceased, and appointed three persons commissioners to sell the same.

Writ of Error to the Circuit Court of Mobile. This was an action of'assumpsit, at the suit of the defendant in error. The first count alledges, the employment of the plaintiff below, as the clerk of the defendant, at the stipulated price of fifty dollars per month, from the first day of July, to the first day of November, in the year 1844, the readiness of the plaintiff to perform the services, and the refusal of the defendant to allow him.

<p>Writ of Error to the County Court of Mobilé.</p> <p>Motion by the Bank against Thompson, for failing to issue an alias execution upon a judgment obtained by it against one Shaw and others, at the February term, 1840, and upon which, within the year, a fi. fa. had been issued and returned no property. The County Court refused the motion, and gave judgment for the defendant.</p> <p>By an agreement of the parties, the record is so amended here, as to show, that a tender of twenty-five cents was made by the bank to the defendant, as clerk, for his .fee for this service, which he refused to perform unless a greater sum was paid. If he is entitled to receive a larger sum, then the judgment to be affirmed, otherwise reversed.</p> <p>cited Acts of 1843, p. 19, § 3.</p>

Assumpsit by the plaintiff in error, on two promissory notes for $1,500 eacb.

Writ of Error to the Circuit Court of Lowndes. This was an action of assumpsit, at the suit of the defendant in error, against the plaintiff. The declaration contains but a single count upon eight promissory notes. To this the defendant demurred, and his demurrer being overruled, he pleaded over, and the cause was submitted to a jury, who returned a verdict for the plaintiff, and judgment ivas rendered accordingly.

<p>Writ of Error to the Court of Chancery for the 1st District.'</p> <p>The matters of this bill, and the'answers to it, are stated in the report of a decision upon an appeal from a decree dissolving the injunction, in 6 Ala. Rep. 178, so far as connected with that motion. It now comes here upon the final decree, declaring the deed of mortgage exhibited by the complainant, Wiswall, to be void as against him, and directing a sale, first, of the personal estate covered by it, and then of the St. Francis street store and lot, if the personal estate does not produce sufficient to satisfy the complainant’s demand. The bill, as before stated, exhibits a copy of the mortgage deed, and charges that it “ was not a bona fide transaction between the defendants, Ticknor and Day, or founded on any bona fide transaction between them. That Ticknor was not indebted in a large amount to said Day; and that Day was not liable in a large amount for said Ticknor, as stated in the mortgage.” In the interrogating part of the bill, the defendants are required to “ set forth and discover the consideration, if any, of the aforesaid pretended mortgage ; the amount of indebtment and liability, if any, which the same was made to secure, and all the particulars thereof; how the same originated, the nature of the said liabilities, and each and every instrument creating the same; and who were the holders and owners of such instruments and each of them, if any, at the time of the execution of the mortgage; and whether any of them creating liabilities on the part of said Day, and which of them have been paid; and whether Ticknor has paid to Day any, and if any, what part of the debt due to him.</p> <p>In addition to seeking to subject the property mortgaged to Day, the bill is framed with a view to the discovery of any real or personal estate, or choses in action of the said Tick-nor, for the purpose of subjecting them also to the payment of the complainant’s judgment. An injunction is asked to restrain Tuckner and Day from assigning or transferring the real and personal property, choses in action, &c., to which Ticknor then was in any manner entitled. On the coming in of the answers, this injunction was dissolved; but the interlocutory decree to this effect, was reversed by this court.</p> <p>The answer of Ticknor, adopted by Day, asserts the payment by Day, for Ticknor, of some $24,000, to certain named commercial houses, and $7000 loaned money, at two specified dates, for which Ticknor had given his notes to Day. Day, by his answer, admits the payment by Tucker to him, since the date of the mortgage, out of the proceeds of the goods mortgaged, $10,600.</p> <p>It is also insisted by Ticknor, that at the time of the mortgage, the St. Francis street store was incumbered by other mortgages, which are specified, to the sum of $15,744 03, which mortgages were'assumed and subsequently paid off by Day; and that in order to secure Day, “for the above mentioned debts,” the mortgage was executed.</p> <p>The final decree is assigned as error.</p> <p>insisted—</p> <p>1. That considered as a mortgage, this deed is not void. The permission to the debtor to remain in possession of the personal estate, though it may be inoperative against an attaching creditor, does not render the deed void. [7 Peters, 614; 1 Mete. 10 ; 6 Rand. 285.]</p> <p>2. Whether a deed be legal or otherwise, depends on the intention of the parties at the time of the execution. If not then fraudulent, it does not become -so by matter ex post facto. [Shep. Touch. 67; 5 Term. R. 425; 6 Rand. 288.]</p> <p>3. The allowance of possession to the grantor, after an absolute sale, may avoid the title as to the property possessed, but it cannot operate to divest the title to property which may be lawfully permitted to remain in the grantor’s possession. [19 Wend. 181.]</p> <p>4. The cause having been heard upon bill and answer, the answer must be taken as true. The deed is not fraudulent per se, and the fraudulent intent being denied, there is nothing to set the deed aside. The court will not look at mere circumstances of fraud. [11 Wend. 240 ; 4 Ala. Rep. 379.]</p> <p>5. The cause was “ submitted for a decree, upon the bill, answers and exhibits,” which clearly implies the consent of the parties. [Rule 14.]</p> <p>6. Independent of the deed, the Chancellor ought to have allowed the liens upon the property which Day discharged, [3 B. Monroe, 298.]</p> <p>argued—</p> <p>1. That the decision formerly made, when the cause was here on the motion to dissolve, &c., was on the facts as now presented, and is consequently the law of the case. The party had the opportunity to change thq prima facie aspect, by evidence, and not having done so, it must be inferred he is unable.</p> <p>2. It is not necessary the deed should be fraudulent on its face. It is sufficient if it is suspicious, or made under circumstances of suspicion; it will be pronounced fraudulent if these matters are not satisfactorily explained. In courts of equity, it is clear subsequent acts may be such as to render a prior fraudulent intent apparent. [Robbins v. Parker, 3 Mote. 120.]</p> <p>3. The answer of Day, alledging payment of incumbrances, is not responsive to the bill, and are not proved. The cause was not submitted by consent; on the contrary it was continued one year on the docket, after the former decision, and during all this time, the defendant’s remained passive.</p>

Motion by the plaintiff in error, against the defendant in error, as sheriff of Montgomery, for failing to make the money on an execution of the plaintiff, against Margaret Bachelor, and others, for $202 44, costs of suit.

Writ of Error to the Circuit Court of Coosa. This was an action of assumpsit at the instance of the defendant in error, against the testator.

Writ of Error to the County Court of Mobile. Action by Bonsadon against Miller, for an unlawful detainer. Judgment was given by the justice of the peace against the defendant, who removed the cause to the County Court by certiorari, where it was agreed the petition for the certiorari should be taken also as a bill of exceptions, allowed by the justice trying'the cause, and upon it errors are assigned.

The Bank moved for judgment against the defendant, and others, on a note for $10,662 58. The defendant pleaded separately, that he had been discharged as a bankrupt, after the making of the note, and obtained his final certificate, the discharge operating from the 18th February, 1842. The plaintiff replied, that after the filing of the petition, and after the discharge of the said Boykin, he assumed and promised to pay the note.

<p>Writ of Error to the Circuit Court of Pickens.</p> <p>The defendant in error, by its attorney, caused an original attachment to be issued by a justice of the peace of the county of Greene, and made returnable to the Circuit Court of Pickens, against the estate of Benjamin H. Stribling. This process was placed in the hands of the sheriff of the former county, who returned that he had executed the same, by summoning the plaintiff in error and another person as garnishees, a judgment by default was rendered against the defendant in attachment, and also against the garnishees for their failure to appear, and answer as to their indebtedness, &c.; and a scire facias directed to issue to the garnishees, to show cause why the judgment nisi should not be made final. At the succeeding term a final judgment was rendered against the plaintiff in error, reciting the judgment nisi and that a sci.fa. had issued, but affirmed nothing as to its service, or return.</p> <p>made the following points — 1. That the attachment being issued by a justice of the peace of Greene, and returnable to the court of another county, is a nullity, and all proceedings on it are merely void. 3. It does not appear that a scire facias, as directed by the judgment nisi, was ever served on the garnishee. They cited 4 Ala. Rep. 755 ; 1 Id. 48; 3 Id. 73 ; 3 Stew. Rep. 335.]</p> <p>admitted that according to Caldwell v. Meador, 4 Ala. Rep. 755, the attachment was issued irregularly, but insisted that the irregularity should be taken advantage of in the primary court. [7 Ala. Rep. 706.]</p>

Assumpsit by Miss Renfro against Kelly, for the breach of a marriage contract. At the trial upon the general issue, and other pleas not necessary to be stated, it was shown in evidence, that the plaintiff and defendant had mutually promised to marry; that the 2d of May, 1843, was fixed on for the marriage, preparation made, and guests invited.

The facts as they appear of record, are, that the plaintiff in error, as the administrator of Britton Willis, deceased, entered upon the administration, made and returned his inventory, account of sales, &c., and made several annual settlements with the Orphans’ Court. On the 2d July, 1845, the administrator having applied for the allowance of his annual settlement, the heirs and widow of the deceased appeared.

<p>1. Where a judgment is rendered against several defendants, one of ■whom died previous to its rendition, it may be amended on motion, by vacating it as to the deceased defendant, and continuing- its vitality against the others; and where a judgment in such case is thus far vacated, and a formal judgment nunc pro tunc rendered against the survivors, tire latter will be regarded as a continuation of, and intended to perfect the original judgement, and but one execution can issue. The informality in the judgments ■ would, on error, be regarded as a mere clerical misprision, amendable under the statute at the costs of the plaintiff in error.</p>

Motion by the relator, for a mandamus to the Circuit Judge •of Mobile, to grant the relator a certificate of election to the office of Clerk of the County Court of Mobile county. The petition sets out, that at the last general election an election Avas held in that county, according to law, for Clerk of the County Court. That at such election, himself and four others Avere candidates.

- This was a proceeding by warrant, commenced before a justice of the peace, by the defendant in error, as an overseer of'the road, against the defendant in error, for the default of his hands in failing to work on the road. The justice .rendered judgment for $45, and costs, from which Barney appealed to the County Court.

Writ of Error to the Couni y Court of Wilcox. This is an action of assumpsit, at the suit of the plaintiff in error, on a promissory note made by the defendant on the 29th November, 1842, for the payment of eighty-five dollars, to the plaintiff, on the 1st of March thereafter. The cause was tried upon issues on the following pleas, viz: 1. Nonassumpsit. 2. Payment. 3. Setoff. 4. Fraud. 5. Want, of consideration. 6. Failure of consideration.

Writ of Error to the Court of Chancery for the 5th District. The case made by the bill is this: Martha J. is the wife of James P. Colburn, and the other complainants are her children by him. On the 25th December, 1829, one John B. Bradford, by deed of that date, conveyed to Wm.

Assumpsit by the defendants, against the plaintiff in error, upon anote for $59 56, and an open account for $109. From a bill of exceptions it appears, that the plaintiff read the note to the jury, and proved by a witness $39 38 of the account, and abandoning all the account over one hundred dollars, offered to prove by his own oath, all the items of the account not proved by the witness.

Writ of Error to the Circuit Court of Perry. The plaintiff in error caused a writ to be issued against the defendants, in assumpsit, on which the cause of action is indorsed thus : “ This action is brought to recover the amount of a promissory note, made by the defendants, payable to the plaintiff, for the sum of five hundred dollars, due 2d May, 1840.” At the appearance term, a declaration was filed upon the cause of action as indorsed, and at a term subsequently holden, in…

<p>1. Where an execution is levied on land, and the defendant in execution was discharged ás a certificated bankrupt, after the judgment, but previous to the levy, the execution and levy cannot regularly be quashed on his motion.</p>

The bill was filed by the plaintiff in error, for the settlement of a partnership in lands against Christopher A. Green, John and Thomas Goodwin, and the heirs- and representatives of Samuel P. Clawson, deceased. The allegations of the bill are, that the object of the partnership was to buy, and sell Indian reservations, and divide the profits.

<p>1. In an action by a mechanic to recover for work done by him in the village in which, he resided, it is competent for him to prove the customary charge for such work by mechanics of that village — such evidence not being intended to establish a “ custom or usage.”</p>

Writ of Error to the Circuit Court of Tallapoosa. Claim interposed by Yarborough to certain slaves attached as the property of one Thomas, at the suit of Moss. At the trial, there was evidence conducing to show, the slaves were in the possession of the sheriff when he levied Moss’ attachment, and the plaintiff offered to prove, that the sheriff then held them by virtue of a previous levy, under sundry writs offt. fa. which writs were not produced.

<p>1. There cannot be a valid gift at common law, where the donor retains control and dominion over the subject of the gift during his life.</p> <p>2. Where a gift is alledged to be evidenced by a deed, which is not produced, but an attempt is made to prove the gift by parol evidence, the withholding of the deed casts suspicion over the entire transaction.</p> <p>3. The Chancery Court may take jurisdiction after proceeding, have been commenced in the Orphans’ Court, in a proper case, and having jurisdiction for one purpose, retain it for all purposes, and make a final settlement.</p> <p>4. Where the assets are withheld by the administrator, claiming them as his own, by a secret gift, the Chancellor may interpose, arrest further proceedings in the Orphans’ Court, compel a discovery of the assets, and proceed to malee final settlement and distribution.</p>

Writ of Error to the Circuit Court of Cherokee,' This was an action of trespass at the suit of the defendant in error, for violently beating, bruising and ill-treating a negro man named Hamilton, belonging to him. The cause was tried on the plea of not guilty, a verdict was returned for the plaintiff, and judgment rendered accordingly. On the trial, a bill of exceptions was sealed at the instance of the defendant.

<p>1. Although it is irregular for a court, at a subsequent term, to set■ aside a judgment of non pros, yet the irregularity is cured, if the defendant 'after-wards appear to the action.</p> <p>2. It is the settled practice of this court, that the allowance of pleading out of time, is matter of discretion, the exercise of which is not the subject of revision.</p>

<p>3. The local law of 5th February, 1840, giving- monthly courts to certain counties, repealed so much of the act of 1834, as required ten days to intervene between the test and return of a warrant. Quere- — is not that portion of tho act of 183 4 directory merely ?</p>

<p>1. To aathorize the vendee of real estate, who holds the bond of a deceased person, conditioned to make a title, to proceed in the Orphans’ Court to enforce a performance, he should disclose in his petition such a state of facts as indicate he comes within the categ-ory intended to be provided for by the statute. Consequently it should be alledged, that the executor, or administrator, of the obligor, received his appointment from the Orphans’ Court ofthe county in which the petition is filed.</p>

Action on the case, by Gibson against Bradley, for speaking and publishing slanderous words. The words alledged io have been spoken, charged the plaintiff with being a hog .ithief, and that he runaway from Mississippi for stealing hogs, and that the plaintiff could prove it.

The bill was filed by the defendant in error, in which it is alledged, that he purchased the west half fractional section 13, township 14, range 22, from the Indian located on it, that the other half was purchased by one William Walkér, since deceased, and that the plaintiff in error, Hanrick, is executor.

Writ of Error to the Orphans’ Court of Pike. The defendant in error presented his petition to the court below, stating his intermarriage with Mary L. Hudson, of whose person and estate the plaintiff had been appointed a guardian, and praying that the latter might be summoned to appear, and show cause why a “ final settlement of the estate may not be had, in order that the said Walter C. Parker, in right of his wife, may not receive that portion of the estate of William…

<p>1. A judgment by cofession, under a warrant of attorney, although it is unnecessary to set out the warrant, or its proof, on the record, must show the authority was verified, and sufficient to authorize the particular judgment. "Under a power to L. and his executor to take a judgment, the executor is not entitled to enter it up, without proving the power and producing and proving the note to which the power applies, as well as his letters testamentary.</p>

This was an action of trespass to try title to a lot of land in Wetumpka. The material facts as they appear upon a bill of exceptions are, that the plaintiff produced a patent for the lot in question from the United States, to one Fleming ; a deed from Fleming to Owen & Wright, which he proved by the subscribing witnesses thereto ; also a deed from Owen & Wright to Steber and Warren, which was duly acknowledged before a Circuit Judge, and recorded,in Coosa county.

<p>1. Although the act of 1833, directs, that when an attachment shall be served in the hands of a supposed debtor, &e. of die defendant, the garnishee shall be summoned in writing, yet it is not necessary that a copy of the written summons should be returned with the attachment; huta return by an officer that he had summoned a third person ás a garnishee, will-warrant the inference that the duty was performed according to law.</p> <p>2. To authorize a judgment against a garnishee who is in default, it is necessary, not only that a conditional judgment should he entered against him, hut a scire facias issued thereupon, should be executed and returned, or something equivalent should be shown.</p> <p>3. To sustain a judgment against a garnishee, it should appear that the plaintiff had recovered a judgment against the defendant in the principal suit; but it is allowable for the garnishee to assign errors upon the latter’ judgment.</p>

<p>Error to the Circuit Court of Macon.</p> <p>This action was commenced in a justice’s court, by Johnson, upon attachment process against Mary Clough. After judgment there, she appealed to the Circuit Court, where she appeared at the first term after the appeal, to plead in abatement a defect in the affidavit for attachment. The court rejected the plea, and this is now assigned as error.</p> <p>cited McRory v. Smith, 1 Ala. Rep. N. S. 157.</p> <p>insisted that no plea except to the merits was proper, after the appeal. [Clay’s Dig. 315, § 12.]</p>

This was a petition for a supersedeas by the plaintiff in error, and motion to enter satisfaction upon an execution, which had issued against him and others.

Writ of Error to the Circuit Court of Cherokee. The plaintiff in error, who was appointed by the Orphans’ Court of Cherokee, administrator of the estate of Thomas Landreth, deceased, voluntarily presented his administration accounts to that court for settlement.

<p>Writ of Error to the County Court of Mobile.</p> <p>Assumpsit by Bunnell, as indorsee of a note made by one Lewis, against Magee as indorser.</p> <p>At the trial, the defendant offered as a set off against the note, a judgment obtained in the Circuit Court of Mobile county by Hall,, Weeks & Co. against the plaintiff, and which it was attempted to show, was assigned by Hall to Lewis, the maker of the note, and by him to the defendant, prior to the commencement of the suit.</p> <p>This was admitted, and the court charged the judgment was a legal set off. The defendant excepted, and now assigns the matter of exception as error.</p>

<p>Error to the Circuit Court of Greene.</p> <p>This was an action by the defendant in error, against the plaintiff in error, Clerk of the County Court of Greene, for taking insufficient surety to a writ of error bond. Much testimony was given to prove the insolvency of the surety, but it need not be here set out, as the judgment of the court below, and of this court, turned upon the fact, shown by the evidence, that the surety taken by the clerk was not a resident citizen of Alabama.</p> <p>The court charged the jury, that if the surety, Hunter, at the time he was taken, was not a citizen of the State of Alabama, and the plaintiff had not collected his money, they must find for the plaintiff, to which the defendant excepted, and which he now assigns as error.</p>

Writ of Error to the Circuit Court of Chambers. This was an action of trespass to try title to, and to recover, fyc. the south-east quarter of section two, of township twenty three, of range twenty-five, situated in the county of Chambers. The suit was commenced against the defendant, Sorrells, alone, and his co-defendant, Smith, who was his landlord, was permitted to come in and defend with him.

Questions referred as novel and difficult by the Circuit Court of Dallas.

<p>1. A contract may be rescinded in part, and stand as to the residue, by tire consent of the parties to it.</p> <p>2. If a charge of the court is considered ambiguous, an explanation of it should be asked at the tune. It is pot sufficient to reverse a cause, that the jury may possibly have been misled, where there was not any just ground for misapprehension.</p> <p>Error to the Circuit Court of Macon.</p>

It is shown by the record, that this was a proceeding in bastardy, under the statute, against the plaintiff in error, upon the affidavit of Ann Croft, that he was the father of a bastard child with which she was pregnant.

<p>1. The objection to a bill that a person is improperly joined as a party complainant, is too late if taken for the first time at the hearing, and will then be disregarded, if it does not materially affect the propriety of the decree*</p>

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

Writ of Error to the Court of Chancery sitting at Mobile. The plaintiff in error, who was complainant below, alledges in his bill, that the defendant, Thomas R. Bolling, on the 1st day of November, 1836, made his three several promissory notes, one at six, another at nine, and a third at...... months after date ; each for the sum of $1260, and all payable to the complainant.

Petition on behalf of a portion of the distributees of the estate of Richard 6. Harrison, to compel the administrator with the will annexed to make distribution. The petition sets out, that the decedent was, at the time of his death, a resident of Dallas county, and possessed of real and personal estates of great value.

<p>1. A plea averring who is the real owner of the note sued upon, and that the suit is instituted for his benefit, and pleading an offset against him, is a good plea, although a different person is indicated on the record, as the benefici- . ary of the note in suit.</p>

Writ of Error to the County Court of Clarke. This was a motion against Patterson, as the sheriff of Clarke, and the co-defendants as his sureties, for the failure to pay over, on demand, the amount collected by the former on a writ of fieri facias, particularly described in the notice.

<p>1. Where the garnishee in an attachment suit was induced to file an answer prepared hy the plaintiff’s attorney, under his assurance that she should receive no injury, and be protected against certain notes outstanding in the hands of a third person, not a party to the suit, and afterwards the money due on tiróse notes was collected from the surety of the garnishee, who then sued and recovered from the garnishee, the amount so collected, the plaintiff in the attachment suit is bound by the agreement of his attorney, and will be restrained from enforcing his judgment.</p>

Writ of Error to the Orphans’ Court of Walker. The plaintiffs in error, administrators of the estate of Geo. .Brazeale, applied to the Orphans’ Court for a settlement of their accounts, and the 4th June,' 1839, was set for that purpose. After many continuances, and citations to bring in the administrators, they at length appeared, and filed their accounts and vouchers, which were examined, audited, stated and reported for allowance on the 1st Monday of February, 1845.

Writ of Error to the Circuit Court of Randolph. This was an action commenced by attachment, at the suit of the defendants in error, against the plaintiff — all of the parties being non-residents. The defendant below pleaded two pleas in abatement, in all respects similar to those pleaded in Cobb v. Force, Brothers & Co., 6 Ala. Rep. 468. To these the plaintiffs demurred, and their demurrer was sustained.

<p>3. A promise by one of two administrators to pay the debt, is sufficient to take tire case out of the statute of limitations, when the action is against him only, after the decease of his co-administrator.</p>

Assumpsit by the defendant in error. The writ is sued out against the plaintiffs in error, as administrator, and administratrix of Walter R. English, deceased, which was returned by the sheriff executed on Thomas C. English, administrator.

This was a proceeding for a forcible entry and detainer, instituted by the plaintiff in error, before a justice of the peace, to recover the possession of a lot, situated in'the town of Marion. The cause was tried on the plea of “ not guilty,” ■and on the trial a bill of exceptions was sealed at the instance of the plaintiffs.

This suit was commenced in a justices court by the President, &c. of the Board of Steamboat Engineers of Mobile against Miller, to recover fifty dollars as a forfeiture for the violation of the act of assembly hereafter recited.

Assumpsit by the plaintiff in error against the defendant in error, on four promissory notes, executed to the corporation, by defendant and two Others, payable at the Montgomery Bank. The defendant pleaded non assumpsit, which was verified by affidavit, mil tiel corporation, payment and set off.

Writ of Error to the Circuit Court of Perry. This was a proceeding under the statute for the trial of the right of property. The plaintiff in .error having recovered a judgment against James C. Harrell, William B. Benson, and Henry Y. Howze, for $5,216 64, a writ of fieri facias was issued thereon, and levied by the sheriff of Perry on sundry slaves; a claim of property was interposed by the defendant in error, and bond executed for the trial of the right.

Writ of Error to the County Court of Sumter. Debt by White against Standifer. The declaration contains two counts, the first of which is op a bill single, made by the defendant, on the 31st January, 1840, payable to High & Travis, for f 1101 26, one day after its date, and assigned to the plaintiff, by the said High & Travis, on the 19th May, 1840.

Debt, by the plaintiff in error, against the defendants in error, on a bond executed by them to the plaintiff’s intestate.

<p>1. In an action of assumpsit by the representative of a deceased father against his son, on promissory notes made by the latter in 1837, and payable to the intestate, the defendant relied on payments and sets off to a greater amount than the sum sought to be recovered; to show that the sets off had been allowed on some other indebtedness to the testator, the plaintiff adduced evidence tending to prove, that the defendant had been unsuccessful in business, as a merchant, some years previous to making the notes, that he afterwards resided at his father’s house, without any visible means, and then engaged in a business which required a considerable cash capital, and when he ceased to do that business in 1835, money could not be made of him on execution. Held, that this testimony did not tend to prove the fact it was intended to establish, that it was primafacie irrelevant, and should therefore have been excluded.</p> <p>2. The testimony of a witness who stated that he was acquainted with the general character of one who had been examined on the other side, but disavowed all knowledge of the estimation in which he was held in the neighborhood of his residence, is inadmissible to discredit the latter — it not appearing that the impeached witness had changed his residence, or that his employment was such as to cause his reputation to he as well known elsewhere, as in the vicinity of his home.</p> <p>3. A person who states he has no knowledge of the general character of a witness, save only as connected with “ some alledged frauds,” cannot be examined for the purpose of impeaching his credibility.</p> <p>4. Where a cause is submitted to a jury on Saturday night, the parties agreeing that the verdict might be received by the clerk, in the absence of the Judge, it is competent for the clerk to receive the verdict on Sunday, if the court continues its session beyond the week, and enter a judgment thereupon on some subsequent day of the term.</p> <p>5. Ifhthe court trying a cause does ndt require a party to waive his exception, as a condition upon which an application for a new trial will be entertained, but considers and overrules the motion, an appellate court will not reject the bill of exceptions. And where the motion for a new trial is rested upon grounds not embraced by the bill of exceptions, the primary court cannot put the party excepting to an election.</p>

<p>1. Where the parties to a-controversy with respect to whether a transaction was a purchase of slaves, or a loan of money, entered into an agreement relative to the disposition of one of the slaves, but agreed that the writing-should not be used by either as evidence, and on the same day one executes a receipt to the other, purporting to be a, receipt of notes in full for the slave, if the latter paper is given in evidence, the opposite party may introduce the agreement, to explain the whole transaction, notwithstanding the agreement not to use it as evidence.</p> <p>2. When two papers are before the jury as evidence, one of which, if not part of the same transaction with the other, will naturally affect the right of the plaintiff to recover, but will not if tlie transaction is one andthie same; the court does not submit a question of law, when it instructs the jury to ascertain to what extent one of the papers will affect the plaintiff’s rights The charge will be construed with reference to- the question of identity.</p>

The bill was filed by the defendant in error, to obtain contribution from the plaintiff in error as co-surety. The allegations of the bill are, that the complainant, together with Cummings & Spyker, and Martin M. Armstrong, were sureties for one Thornton Taliaferro, in -a note to the Branch Bank at Montgomery, for $4,4-06 79, due July 1, J.842.

This was a motion at the suit of the plaintiffs in error, against the defendant, McLaughlin, as sheriff of Perry, and the sureties in his official bond, for the failure to return a writ of execution in the nature of a venditioni exponas.

<p>Error to the Circuit Court of Covington.</p> <p>This action is a qui teem suit brought by Mercer against Carter, to recover the sum of twenty dollars alledged to have become forfeited by reason of the defendant having omitted to administer an oath to the plaintiff, when, as tax collector of Covington county, receiving the list of taxable property from him. The suit was commenced before a justice of the peace, and, after judgment, taken by certiorari to the Circuit Court, whore jtidgment was again rendered for the plaintiff, qui tarn.</p> <p>At the trial in the Circuit Court, the following facts were proved, viz:</p> <p>Carter was the assessor of .taxes for Covington county, for the year 1844. As said assessor, he made the usual advertisement required by law. Mercer failed to appear and give in his tax. The assessor went to his house and assessed against him a poll tax. Mercer had no taxable property of any sort. This tax was assessed without administering any oath to Mercer, by the assessor, and the fact that Mercer had no taxable property was known to the assessor at the time of the assessment.</p> <p>This statement of facts is agreed upon by the parties, in lieu of a bill of exceptions, and on this proof the court gave judgment for the plaintiff.</p> <p>This is the only matter assigned as error.</p> <p>insisted, that a poll was not taxable property, so as to require a list, and is not within the statute imposing the penalty. [Clay’s Dig. 564, 35, 37, 39, 40.]</p> <p>insisted, that the evil intended to be guarded against, was allowing persons to render tax lists without oath, and a poll tax is equally within the evil intended to be prevented.</p>

<p>1. A formal answer, putting in issue the allegations of the bill, is not within the rule requiring proof of the allegations of the bill, by two witnesses.</p> <p>2. Proof by one, that he had a judgment against an individual for ten years, and had used all diligence to recover it, without being able to do so, raises the presumption of his insolvency.</p> <p>3. The objection cannot be made in this court, for the first time, that a release of errors, which the Chancellor required, was not executed, or that a record made an exhibit to the bill, was not appended to the bill. If the objection is not made in the court below, it will be considered as waived.</p> <p>4. Objections to testimony, and all other matters relating to the taking of the. account, must be takenby exception to the Master’s report; an objection by way of protestation, when cross interrogatories are filed, not further acted on, raises no question in this court.</p> <p>5. Although testimony is taken before tire cause is at issue, the irregularity may be waived by the subsequent conduct of the parties; and a consent that the Register may proceed to state the account, will be held to he a waiver.</p> <p>6. When an administrator was made a party, at the trial term, and does not ask for a continuance, or object to a decree then being made, he will be presumed to have consented to it.</p>

<p>I. A witness who had lived both in N. Y. and M., understood it was the custom of merchants that the employer should pay the expenses and passage of clerks, who were engaged in the former, to do service in the latter place for the whole of the ensuing business season; that the witness, who was a merchant, had never so employed or paid a clerk, but he knew of one case where, under a stipulation to that effect, the wages and passage money of a clerk thus* employed, were paid by the employer — Held, that this evidence was inadmissible, and 'consequently incompetent to [establish the usage or custom of trade.</p>

<p>Error to the Circuit Court o" Montgomery.</p> <p>Assumpsit by Bradford, as the indorsee against Hagerthy as the indorser of a promissory note, made by one Pou, dated first July, 1838, payable twelve months after date for $1100, to Harbin & Harris, and by'them indorsed to the defendant, who indorsed it to one Williams, who indorsed it to the plaintiff.</p> <p>The parties went to trial on an agreement that the plaintiff might file a declaration in the usual form, on the indorsement, with the common counts; also, under which the parties respectively should be permitted to prove any matter on the trial which would -be admissible on pleas and replications properly pleaded.</p> <p>At the trial, under this agreement, the plaintiff read in evidence the note with its indorsement, as declared on. Also, the record of á suit against the plaintiff by Pou, the maker, commenced in Tallapoosa county, in August, 1839, which was afterwards dismissed. Also, the record of another suit, commenced in October, 1839, in Macon county, by the plaintiff against Pou, in which a recovery was had on the note for $190 67, on which judgment a fi. fa. appears duly issued, and returned no property found. The plaintiff then proved, that Pou, at the time of the commencement of the first suit, . resided in Tallapoosa county, but before (he writ was returned non est removed to Macon county, where he resided when the second suit was instituted. He then put in evidence the note which Pou pleaded as a set off to the action, which is made by Harbin & Harris, 25 August, 1838, payable to Pou for $950, on the 1st January, 1839, with interest from date, and proved that the same was offered as a set off by Pou, in that suit, and allowed and established. It was farther in evidence, the signature to this note was in the handwriting of Harbin, who a short time previous to making it, Avas in co-partnership Avith one Harris, under the name of Harbin & Harris. It Avas also in evidence, that before, at and after the “maturity of the note sued on, Pou resided iu Tallapoosa county. It aves also in evidence, that the plaintiff continued the suit against Pou at its first trial term, on account of the set off interposed, and that afterAvards, in time to have procured evidence, his counsel met Avith the plaintiff in Coosa county, and informed him of the condition of the suit, and that the defence had been' interposed; the plaintiff immediately went in search of the defendant, and returned with him, when the counsel also informed the defendant of the same facts, and inquired of him as to his knowledge or information in regard to the defence. The defendant expressed, entire ignorance of the existence of any such defence, and’then said, that Williams, the last indorser probably could furnish some information, and it was then understood between the parties, that the counsel should see Williams on the subject, and communicate the same facts; and unless the set off was defeated, it would prevent a recovery, pro tanto. Further than stated, there Avas no evidence that the plaintiff required or expected the defendant to procure testimony in the cause against Pou, or to attend to or prosecute the same, and there was no evidence that he did attend to or prosecute the same. •The defendant then gave evidence to show, that in 1838, Pou resided in Macon county, and continued there until 1841, when he removed from the State. It was further in evidence, that the note pleaded as a set off to plaintiff ’s' suit against Pou, was made after the dissolution of the firm of Harbin & Harris, and had no relation to the business of that firm, and was made without the authority, knowledge, or consent of Harris, the other member of the firm; but of this dissolution no notice'was given, and that previous to Pou’s receiving the note, he had notice that the transfer of the note made by him, was intended, but there was no notice of its actual transfer.</p> <p>On this state of proof the court charged, the jury—</p> <p>1. That under the counts for money paid,&c., if the jury believed the note set off by Pou, in the suit against him, was a set off in his hands, at the time of the transfer to the plaintiff of the note indorsed by the defendant, this circumstance would dispense with the necessity for the plaintiff to sue Pou to the first court of .the county of his residence, and would entitle the plaintiff to a recovery to the extent of the set off.</p> <p>The defendant requested the court to charge the jury — ■</p> <p>■ 2. That if the information given to Hagerthy, of the plea of set off, was given only m the way of inquiry, and not as notice to him to attend to the suit against Pou, then the defendant might show, the note allowed as a set off was not in fact a set off; ' and if they were satisfied that the note was not a set off, then the plaintiff could not recover the amouut of that note. . This was refused, and the court instructed the jury -</p> <p>C That if the information given to the defendant, of the set off, was not intended by the plaintiff as a notice to. attend to the suit against Pou; or was not given in such a manner as to signify to the defendant, that the plaintiff'would expect the defendant to attend to that suit, then the defendant was not bound by the verdict in that suit, and might show the note offered then as a set off, was in fact no set off; and if, under the circumstances, they were satisfied that note was not a set off, the plaintiff was not entitled to recover its amount..</p> <p>The refusal to give the charge asked, as well as those given, were excepted to by the defendant, and are now assigned as error.</p> <p>insisted that the existence of a set off against the payee of an assigned note, will not dispense with the diligence required by the statute. The fact of set off will not dispense with demand and notice, when the paper is negotiable. [Rathbone v. Bradford, 1 Ala. Rep. 314; Riddle v. Rourke, lb. 395; Ryland v. Bates, 4 lb. 343 ; Bates v. Ryland, 6 lb. 667.]</p> <p>argued—</p> <p>1. The charge first given, is sustained by many authorities. [2 Term. 193; 9 Mass. 1; 2 Stew. 512; 1 Porter, 313.]</p> <p>2. The charge, asked for is less favorable than the one which the court gave, in response to the defendant’s request, and the court would not reverse in such a condition of the charge. [lAla. Rep. 452; 7 lb. 162; Yarborough v. Moss, January term, 1846.]</p> <p>3. It was unnecessary for the plaintiff to show any thing beyond his failure to recover, as the suit against Pou is conclusive against the indorser. [5 Pick. 380 ; 2 Hay. 351; 14 Johns.. 81; 4 Ala. Rep. 707 ; 7 Ala. Rep. 27; 6 Wend. 620.J</p> <p>4. The verdict being for the entire amount of the note, shows that the jury determined the residence of Pou was in Tallapoosa, when sued there, and therefore if there is abstract error in the first charge, the court ought not to reverse, inasmuch as the error has not entered into the verdict. £3 Ala. Rep. 599.]</p>

The bill was filed by the plaintiff in error, and alledges, that the defendant, Brassfield, represented himself to be the owner of certain lands in Sumter county, which are particularly described, containing four hundred and fifty acres. That he sold the same to the complainant for $2,880, payable by four instalments, of $720 each, on the 1st January, 1837-8-9 and 40, and executed his bond for title, as soon as he obtained the patents from the government.

<p>1. The first article of the treaty of 1814, with the Creek Indians, or the act of Congress of 1817, which provides for the location of lands reserved under that article, and for other purposes, does not invest the chiefs, warriors, or other reservees, with an estate which he can alienate at pleasure.</p> <p>2. Queivf Does evidence, that a reservee under the treaty of 1814, with the Creek Indians, or under the act of Congress of 1817, has removed to another county in the State than that in which his reservation is situated, establish the fact of his voluntary abandonment; or may it not be intended, in the absence of proof, that he still retains the control over it, and that others cultivate it for him.</p> <p>3. A reservation of the public lands, which is subject to forfeiture upon the alienation of the reservee, and its voluntary abandonment, is nevertheless a sufficient consideration for the contract by which the reservee agrees to sell it, and receive slaves as an equivalent — the contract being lonajide on both sides. And the vendor of the slaves cannot maintain an action to recover them back.</p> <p>4. The contingent interest of a party in slaves, if in danger of being lost, &C., by their removal, &e., it seems may be protected in equity.</p>

At the trial, on the general issue and other pleas, it was in evidence, that after the maturity of the note, the plaintiff, Thomas, to whom, or order, the note is payable, had indorsed it to one Davis, and that Davis, when holding the note, called on Lanier, the principal, for payment, and received from him a saddle horse, at $250, and a watch at' $150, in part payment; also, a receipt given to Lanier, by certain attorneys for a note on a third person, in their hands for…

Application, by the plaintiff' in error, for letters of administration cum testamento annexo, of the estate of William Fagan, deceased.

Writ of Error to the Circuit Court of Coosa. Action of trespass to try title. The land described in the declaration, is the south-east fractional quarter of fractional section 24, of township 18, of range 18.

Action by Mary Watt against Shoddy for ail unlawful detainer, commenced berore a justice of the peace, and removed by the defendant to the Circuit Court by certiorari.

<p>1. The levy of an attachment on a pair of shoes, if really made, and the shoes of any value, is sufficient. If the levy is fictitious, or colorable, it would be quashed by the Court to which it was returned on motion.</p> <p>3. The return of the sheriff, that he has levied on certain property by virtue of the writ, is an affirmation that it is the property of the defendant.</p>

Writ of Error to the Orphans’ Court of Perry. This was a proceeding for the settlement of the accounts of a guardianship. It appears from the transcript, that the defendant in error was appointed in June, 1833, by the Orphans’ Court of Perry, as the guardian of the person and estate of Margaret A. Utley, an infant heir of William S. Utley, deceased, and entered into bond with surety accordingly.

<p>1. When the creditor gives day to the principal debtor, and the surety after-wards, with a knowledge of the fact, agrees to waive all advantage to himself, the inference is that he agreed to the extension, and no consideration is necessary to sustain the agreement for waiving the act.</p>

This was a motion by the administrators of Abercrombie, against the sheriff of Perry county, suggesting that by due diligence he could have made the moneí^ on an execution issued upon a judgment of their intestate, against one Thomas Billingsley. The sheriff,-for answer to the suggestion pleaded, that Billingsley had paid off and discharged the debt to the intestate in his lifetime, and had taken his receipt therefor, which he avers was the genuine receipt of the deceased.

This was an action of assumpsit at the suit of the plaintiff in error, to recover of the defendant damages for medicines, medical services, labour and attendance in and about the defendant, his family and servants, at his request From a bill of exceptions sealed at the trial, it appears that the defendant had failed to answer certain interrogatories intended to elicit evidence to be used on the trial at law against him ; further, that for such failure a rule for an…

<p>1. The misdescription of the name of an indorser in the certificate appended to the protest certifying that the notice was sent to one Chomason, when the indorser’s name was Thomason, is not sufficient to exclude the protest as evidence, the true name appearing in the copy of the hill.</p> <p>2. A protest describing a bill as dated the 26th January, is not admissible as evidence to show the protest of a hill dated the 28th January.</p> <p>3. Although protests are excluded from the jury, yet the deposition of the no • tary is proper, to prove notice sent to the indorsers — but quered whether it is so to prove the fact of protest.</p>

The plaintiff in error was garnisheed by defendant in error, to say what he was indebted to John B. Lamkin, his judgment debtor. Judgment by default was taken against him, and upon a scire facias he appeared, and answered, denying that he was indebted to Lamkin; that he cultivated about fifty or sixty acres of land, once claimed by Lamkin, ■ but that Lamkin had abandoned the same, previous to the garnishment. .

<p>1. The indorsement of a bill single, is in itself a distinct and substantive contract, and if it does not look to any other place, will be governed by the lex loci contractus; and where it is made in another State, in which the common law is presumptively in force, to fix a liability upon Hie indorser, it is incumbent upon the indorsee to show by a suit prosecuted against the obligor, that the amount of the specialty could not be collected of him, or else excuse the prosecution of such a suit by proof of the obligor’s insolvency, or the production of a statute modifying the common law.</p> <p>2. A declaration against the indorser discloses a good cause of action, which shows that debt is past due, alledges the indorsement in this State of a bill single, that the obligor was then, and still is a resident of another State; that he then was and still continues wholly and notoriously insolvent, so that no part of the debt could be collected of him by suit.</p> <p>3. It is not necessary, in an action upon the indorsement of a bill single, for tire indorsee to prove the consideration which moved from him to the indorser — the statute makes the writing evidence of the debt or duty, and requires the defendant to deny it by plea, supported by affidavit; and this, although the paper indorsed was not negotiable at common law, and the indorsement was made in another State.</p>

Writ of error to the County Court of Wilcox. Assumpsit by Evans against Matthews, as the maker of a promissory note.

Erwin, administrator, 2 Ala. 452, and is a controversy between different assignees of notes executed to C. Cullum, and secured by a mortgage, for a priority of right, the fund not being sufficient to pay all the notes. The Planters’ and Merchants’ Bank, filed their petition asserting that their execution was prior in point of time, to that of the Bank of Mobile, and entitled them to priority of payment.

<p>Writ of Error to the Circuit Court of Talladega.</p> <p>This was an action of Detinue, at the suit of the plaintiff in error, commenced in May, 1840, for the recovery of a negro woman named Sally, and her three children. The cause was tried upon the general issue ; and a bill of exceptions was sealed at the instance of the plaintiff. The defendant claimed the slaves in question under a bill of sale from W. T. Stubblefield, executed on the 18th April, 1839 ; and the latter deduced a title under a deed of gift from the plaintiff ; which after giving the slaves in unqualified terms with a warranty against the claims of all persons, and a formal attestation clause, concludes thus : “ The above negroes are to remain in the possession of the said John Stubblefield, until his death.” This deed, which bore date 28th January, 1837, was never duly registered.</p> <p>In the latter part of the year 1836, the negro woman with her oldest child, was under a mortgage, executed by the plaintiff to one Smith ; and the plaintiff residing some distance from the mortgagee, placed in the hands of the donee a sufficient sum of money to redeem them. The donee having spent a part of the money, borrowed fifty dollars of one Ragland, with whom he was then boarding, and in November, 1836, redeemed the slaves and carried them to Ragland, without saying any thing about his agency for the plaintiff.</p> <p>The slaves remained at Ragland’s some twelve or fourteen months, and even after the donee ceased to board with him, without any contract in respect to them. In November, 1837, the donee took the negro woman and her child from Rag-land, and placed them in the possession of Washington Wilson, under a contract of hiring, but there was no proof that he represented himself to be his father’s agent. In June, 1838, W. T. Stubblefield took the slaves into his possession, and shortly after married the defendant’s daughter, and settled near him.</p> <p>After the purchase of the defendant, on the 18th April, 1839, the slaves were left with W. T. Stubblefield to attend on his wife, who was then sick, and died in October, 1839. The defendant then took possession, and has retained it ever since. There was no proof that the defendant had notice of the agency of W. T. S., or of the reservation in the deed of gift, for the benefit of John Stubblefield, the donor.</p> <p>In 1838, the slaves eloped from the donee’s possession, and returned to plaintiff’s residence, about twenty-five miles distant, where they remained several days. In order to obtain possession again, the donee was compelled to agree that he would return the slaves to the plaintiff, at a time agreed on; but in what time the witness did not recollect. The slaves were never returned as agreed, nor was the donee ever sued for their recovery.</p> <p>The plaintiff prayed the court to charge the jury, — 1. If they believed from the evidence, that Ragland, up to November, 1837, held the slaves under an agreement to pay hire for them to the plaintiff, his possession was, in law, the possession of the plaintiff. 3. If the plaintiff was in possession of the slaves several days in 1838, and gave them up on condition that they should be returned to him in a given time, this was such an interruption, in law, of the possession of W. T. S., as would prevent the operation of three year’s continuous possession, to defeat the reservation in the deed of gift. Which charges the court refused to give.</p> <p>Several charges were given by the court, in Avhich the laAV is affirmed to be substantially the reverse of what the charges prayed, supposes.</p> <p>The evidence in respect to the hiring by Ragland, was as follows, viz : while the slaves were at Ragland’s, or subsequently, a dispute arose between Ragland and the plaintiff as to how much the former should pay the latter per month, for the hire of the woman. The plaintiff insisted upon $12; Ragland was willing to pay $10, and no moré. Pending the dispute, W. T. S. observed, that he was willing to pay the additional two dollars per month, rather than the arrangement should fail; and the matter was adjusted accordingly.</p> <p>A verdict was returned for the defendant, and judgment was rendered thereupon.</p> <p>made the following points: 1. The contract of Ragland to pay the plaintiff hire, for the negro woman, was made with the assent of W. T. S.; in point of law, it divested the previous constructive possession of the latter, if it ever existed, and restored it to the plaintiff; for the possession of one who stipulates to pay hire, is regarded as the possession of him under whom he holds. 2. The second charge was prayed upon the hypothesis that the slaves were, in 1838, in the possession of the plaintiff, bona fide. If this be so, as the plaintiff had the right to assume upon the evidence, then the possession of the donee had ceased, and must commence again when the slaves were restored to him, 3. Under the second section of the statute of frauds, the three years possession which invests the loanee with a title in favor of creditors and purchasers, must be an actual, not a constructive possession. The donee’s actual possession commenced in 1838, when he received the slaves from Wilson; previous to that time he merely hired them out, and as it must be intended, in the character of agent for the plaintiff. Be this as it may, as he had no title, neither Wilson’s nor Ragland’s possession could be his by construction. To this it may be added, that the agency of the donee being established, and no proof of its withdrawal, its continuance will be presumed. [Story on Contracts, $ 338.] Upon the first charge prayed, see 6 Ala. Rep. 622; 7 lb, 379.]</p> <p>insisted that the ruling of the Circuit Court conformed to the principles settled in this case, when it was here on two former occasions. [2 Ala. Rep. 684; 4 Id. 40.] Ragland did not agree to pay plaintiff hire for the future services of the woman, but for services already performed. This shows that there was no contract of hiring. It is not pretended that either Ragland, Wilson, or any one else deriving possession of the slaves under W. T. S. had any notice of his agency; and this cannot be presumed. The first charge prayed is abstract, and uncalled for by the proof. Both it and the second charge are opposed to one of the previous decisions of this court. [4 Ala. Rep. supra.] But if the charges should have been given, their refusal is not a fatal error; for the charges given lay down the law fully and correctly upon the entire case. [Yarborough v. Moss, at this term.]</p>

<p>Error to the Circuit Court of Wilcox.</p> <p>Claim interposed by Pierson, as trustee for his wife, to certain articles of furniture, &c., levied on by attachment, at the suit of Atwood, as the goods of Pierson. The attachment was levied the 7th November, 1844, aud the claim seems to have been interposed in February afterwards, as the claim bond is dated in that month. The affidavit for the claim is not in the transcript.</p> <p>At the trial of the right of property, it was in evidence, the attachment was levied the 7th November, 1844. The deed of trust under which the claimant made Jtitle, was executed 29th January, 1845, by one Reese to the claimant. Theodore H. Croft and John W. Pierson, conveying certain property in' trust for the separate use of Mrs. Pierson. It also appeared that the property conveyed by this deed had been sold under execution against Pierson, as his property, in the early part of 1843, when Reese became the purchaser, but left it in the possession of the said Bird M. and one P. Pier-son as his agents. It also appeared that the two Piersons had sold;-a part of the property and accounted to Reese for the proceeds’ and paid over the money to him. That Bird M. Pierson, the debtor, atfthe time of tho sheriff’s sale was wholly insolvent; that it was understood by those attending the sheriff’s sale, (about a hundred persons in number,) that Reese intended purchasing the said property for the separate use of Mrs. Pearson; that property'to the value of $3,000 was sold at said sale, when Reese purchased it for $250, which he paid with his own money.</p> <p>Upon this state of facts, the plaintiff requested the court to charge the jury, that if they believed the property in dispute was held adversely to Reese, at the time when he executed the deed of trust to the claimant, then the claimant took no title under the deed, and therefore they should find the property subject to the attachment.</p> <p>This was refused, and the plaintiff excepted.</p> <p>This refusal to charge is the only error assigned.</p> <p>insisted that a conveyance of lands held adversely to the grantor passes no tifie, and the rule should be more strict in cases of personalty ^because delivery is requisite, and nothing passes without it. [Goodwin v. Lloyd, 8 Porter, 237.] The lien of attachments are the same as executions. [3 Munf. 417; 3 Porter, 138 ; 1 McCord, 480.]</p>

<p>1. One who undertakes to hind a corporation, by the execution of a promissory note, must show that he had authority to bind it, and that it had the faculty of becoming bound for the payment of money. An agent when sued upon a contract made by him, can only exonerate himself from liability, by showing that he had authority to bind those for whom he assumes to act</p>

The plaintiffs in error, Peirre Juzan, John B. Juzan, and Gertrude C. the wife of the latter, exhibited their bill against the defendant; the allegations of which, so far as material to the understanding of the cause, may be thus condensed. In 1795, Daniel Juzan and Louisa Laurendine, the father and mother of the complainants, Peirre and John B. intermarried in the vicinity of Mobile, then part of the province of West Florida, and under the dominion of the King of Spain.

Assumpsit by Donnell against Jones Co. pending the suit, and concurrent with the suing out of the ca. ad res. the plaintiff sued out an ancillary attachment,, which is returned by the sheriff as levied on certain property. The ca. ad res. is returned, executed. Both writs were issued on the 1st January, 1845, and are made returnable to a court to be holden on the 1st Monday of March, 1845.

Assumpsit by the defendant in error, against the plaintiff in error, on a promissory note made by him, for $7,226 20. payable to his own order. The plaintiff alledged an indorsement, and declared upon it in the usual mode.

Writ of Error to the Court of Chancery sitting in Macon county. The defendants in error were the complainants below.

Writ of Error to the Court of Chancery for the 9th District. Iverson exhibited his bill against J. Gc. Shorter and L. S. Cato, alledging, that in. 1842, in the County Court of Barbour county,, he obtained judgment against Seth Lore and Edmund Sheppard, for $6,293, besides costs. On this judgment he sued out execution, which the sheriff of said county, on the 7th February, 1843, returned, no property.

<p>1. A bequest of a slave to one for her life, and “ at her death to the lawful issue of her body, that may then be living, to them and each of them, share and share alike, but should she die without lawful issue, then to go to her' sisters, share and share alike,” is good, as an executory devise, the sisters taking a vested remainder, as purchasers, which was not affeoted by the sale of the slave, by the husband of the tenant for life.</p> <p>2. Where, from the organization of a court, no one of the Judges hits precedence over the rest, from the necessity of the case, either of the Judges has power to make the certificate required by the act of Congress for the authentication of records. But in such a case, it must be shown that such is the organizotion of the court.</p> <p>3. When the wife’s chose in action accrues during the coverture, the husband may, or may not, join the wife in the suit, at his election.</p>

<p>1. Where letters of administration are revoked upon the failure of the administrator to renew his bond, as required by statute, and upon the settlement of his accounts, in the Orphans’ Court, a docree is rendered against him, for the amount due by Mm to the estate, in favor of Ms successor, and execution ordered to issue thereon — the decree, at least as it respects the order for an execution, is unauthorized by any statute, and cannotbe supported.</p>

<p>1. When an execution is made returnable at an impossible day — as of a year which was gone when the execution issued — the sheriff cannot take advantage of the irregularity, when a motion is made against him and his sureties for a failure to return it within the time prescribed by law.</p>

<p>1. An accusation that one “ was whipped for stealing hogs,” imports a larceny. It is an accusation of hog stealing, with the addition that the party had been whipped for it.</p> <p>2. After an effort has been made to assail the general reputation of a plaintiff in slander, he may prove his good character.</p>

Writ of error to the Orphans’ Court of Lowndes. It appears from the record, that the plaintiff in error was appointed the administratrix of her intestate on the fifth of December, 1836 ; that on the 23d June, 1843, she filed her account current and vouchers, upon being cited to appear and make final settlement of the estate.

Writ of Error to the Orphans’ Court of Montgomery. This was the trial of an issue directed by the Orphans’ Court, upon an exception taken by O’Neill, to the account ■exhibited by Donnell, as the administrator of Hugh O’Neill, preparatory to the final settlement of the estate. The account seems to have been regularly stated, and in St is charged the usual commissions.

The plaintiff in error, as surviving partner, having recovered a judgment against the Selma and Tennessee Rail Road Co. for $3,398 73, and having made the necessary affidavit, sued out garnishee process against the defendant in error, who being duly summoned, appeared and answered, “ that he is, and has been, since January, 1837, a member of said company, having taken twenty shares of $100 each ; by the articles subscribed, he bound himself to pay the sum annexed to his name…

This was an action of Trover, at the suit of the defendant in error, against' the plaintiff, to recover damages for the conversion of a wagon. The cause was tried upon the plea of not guilty, with leave to give special matter in evidence.. On the trial, a bill of exceptions was sealed at the instance of the defendant.

<p>1. When the defendant was irregularly allowed to depose as a witmess, to the fact of usury, instead of making his statement, his evidence cannot he excluded because the opposite party denies a particular fact stated by him. Under such circumstances, the denial should extend to the fact of the usury.</p> <p>2. Evidence of the admission by one defendant, although it may not bind an- . other, is competent evidence, and the question of its effect arises only when a charge is necessary or requested.</p>

<p>J. The defendant may prove under the general issue in assumpsit, that the' action was commenced before the debt was due.</p>

Writ of Error to the Court of Chancery sitting in Russell. The defendant in error exhibited his bill against the plaintiff, setting forth that the latter, in |836, purchased of Peter V. Guerry, fractional section number sixteen, in township eighteen, and range thirty, and the east half of section seventeen, in the samo township and range, containing in all about six hundred and thirty acres, situate in the county of Russell, for the sum of six thousand three hundred dollars,…

<p>X. The same rules which govern causes injustice’s courts will control them when tried again in an appellate court, and judgment cannot be rendered there for a set off which exceeds fifty dollars against the consent of the plaintiff.</p> <p>9. But if he omits to require the court thus to limit its judgment wheu the jury certifies a sumgreator than fifty dollars, he will upon error, be presumed to have assented to the utmost exercise ofthe court’s jurisdiction.</p>

<p>Error to Circuit Court of Perry.</p> <p>This was an action on a constable’s bond', to recover for a breach of duty, in not paying over money, &c.</p> <p>The defendant demurred to the declaration, and the court susrained the demurrer, and rendered judgment for the defendants, which is now assigned as error.</p>

Writ of Error to'the Court of Chancery sitting in Talladega. The defendants in error filed their bill, setting forth that they executed their two promissory notes for the sum of $ 175 each, payable to the plaintiff, Huey, in consideration of forty acres of land, which Elliott had bargained and sold to Boaz, but which were conveyed to the complainant, Davis, in virtue of such sale, by Huey, in whom the legal title was vested.

Detinue by Beazley against Mitchell, for a gold watch. The declaration is in the usual form, to which the defendant pleaded, with other pleas, one in the terms following, to wit: “ Actio non, because the defendant says, that on or about the 10th day of November, 1842, at the county, The defendant demurred to this replication, and the court overruled the demurrer. Afterwards, the plaintiff had judgment on verdict on the other pleas.

<p>1. After the Orphans’ Court has rendered a final judgment, and adjourned the term, it cannot grant a new trial.</p> <p>3. A judgment was obtained against the sheriff and his sureties, for the default of the sheriff, in not making the money on a judgment against R.P. one of the sureties to the official bond. An execution issued on the judgment against the sheriff, was levied on some slaves of R. P., who gave a forthcoming bond, with S. as his surety. This bond was forfeited, and art execution issued against the sheriff, and his sureties, and including S.,the surety to the forfeited bond; which last execution S. discharged. Hold, that he could not sue the sureties of the sheriff for contribution.</p>

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

<p>1. To make out a case of bailment, there must be a contract, either express or implied, and the mere talrw by an overseer of cotton seed left by the former occupant on the plantation of the employer of the overseer and the use of it by his direction, will not support ^declaration by the owner of the cotton seed, against the overseer for the value of it, as upon a bailment to him.</p>

<p>Error to the County Court of Chambers.</p> <p>Debt by the plaintiff in error, against the defendants in error, before a justice of the peace, on a note for thirty-eight dollars. The justice rendered a judgment in favor of the plaintiff, from which the defendants appealed to the County Court.</p> <p>The defendants pleaded payment, and introduced the record of a suit commenced by attachment, against the nominal plaintiff, in which the defendant Shaver, was summoned as a garnishee, and answered, that he was “ indebted to the defendant in the sum of twenty-seven dollars and eighty-seven and a half cents, and a judgment of the court against him on his answer for that sum, which he had paid. To the introduction of this,as evidence the plaintiff objected.</p> <p>The defendant also introduced evidence of the declarations of the nominal plaintiff, in relation to the note, after Young-blood had become interested in it. That he heard the payee of the note say, that an attachment had been commenced against him, and Youngblood had become his security in a replevy bond, and in a note for a fee. That he had left the note on Shaver with Youngblood to indemnify him, to be applied to the payment of the costs of the attachment, if it went against him, and if he succeeded to collect the note, and forward the amount to him in Illinois, where he then resided. That he had seen the note some eighteen months before, in the hands of the nominal plaintiff, and confidently believed the note sued upon to be the same, but could not say positively.</p> <p>The plaintiff objected to proof of the instructions of the nominal plaintiff, after Youngblood had become interested in the note, and also to the proof of the belief of the witness. Other testimony was given upon which no question is raised. Judgment was rendered for the defendant.</p> <p>The assignments of error present the questions raised upon the bill of exceptions, and the rendition of judgment in favor of the defendants.</p>

<p>Writ of Error to the Orphans’ Court of Russell.</p> <p>The defendant in error, as the administrator of Seaborn Hill, deceased, filed his petition in the Orphans’ Court, stating that his intestate died seized in fee simple of a certain tract of land, particularly described; that the personal estate of the intestate was not sufficient to pay the debts with which it was chargeable; that Henrietta Hill is the widow of .the intestate, and Arkansas Hill is his only child, and under the age of twenty-one years — both of whom reside without the limits of this State, within the State of Arkansas. Thereupon, it was ordered that T. S. Tate be appointed guardian ad litem, of the infant, and that publication be made for four weeks, &c.</p> <p>The decree of the court recites the foregoing facts, that publication was made as required by the order, that a citation was served on the guardian ad litem, who answered, denying the allegations of the petition, “ and it appearing to the court by interrogatory, that the personal estate of said intestate is insufficient to pay the just debts.” Whereupon it was ordered that the land in question be sold on the terms prescribed in the decree.</p> <p>I. E. Hayne, for the plaintiff in error,</p> <p>insisted that the decree was erroneous, because it was not authorized by written evidence. [Clay’s Dig. 225, § 19.]</p>

Writ of Error to the County Court of Marengo. Assumpsit by Lay against Stiles, to recover the amount of a promissory note, described in the declaration as dated 23d March, 1839, payable the 1st of july thereafter.

<p>Error to the Comity Court of Morgan.</p> <p>Motion by the Bank against the defendant, on a note for $4,355 91, made by N. Scales, as principal, and the defendant and another as sureties.</p> <p>An issue being made up between the parties, and submitted to a jury, evidence was introduced tending to show, that the note sued upon was signed by the defendant, the amount to be paid being left blank. That it was signed with the agreement, between Scales, the principal, and. the defendant, that it should be filled up with the sum of $2,000. That it was taken to the bank by Scales, and filled up by the discount clerk, for $4,355 92, the defendant having no notice of the amount so inserted. That the note was filled up for the entire amount of Scales’ liabilities, both as principal debtor and as surety for others, which then existed in judgment against Scales. That the bank advanced no money, or thing in the purchase of the note.</p> <p>Thereupon the court charged the jury, that if Spence signed. the note when it was in blank, as to the amount to be paid, with the understanding and agreement between him and Scales, that it should be filled up with the sum of $>2000, and the plaintiff had advanced no money, or other thing, in its purchase, but had filled it up for the amount of Scales’ pre-existing indebtedness, as aforesaid, without the consent or authority of defendant, then it could not recover, although it had no notice of the agreement between defendant and Scales. To which the plaintiff excepted, and which is now assigned as error.</p> <p>A blank note will bind the person who signs it, to any sum which the person to whom he intrusts the paper, chooses to ipsert in it, and it makes no difference, whether the note is negotiated in payment of a pre-existing debt, or for a new monied consideration. [8 Porter, 297; 1 Ala. Rep. 18; 3 Id. 188 ; 6 Id. 244 ; 16 Peters, 1; 2 Id. 182; 20 Wend. 499; 24 Id. 115: 1 Bing. N. C. 469; 4 Shipley R. 177; 3 Kent’s Com. § 44; 4 Bing. 496 ; 1 Stark. R. 1; Story on Prom. Notes, 215; Bayley on B. 499; 11 Conn. 388.]</p> <p>Under the facts of the this case, the presumption is, that the note was taken by the bank as collateral security. It does not. appear to have been received in payment or satisfaction of the judgments against Scales, or that any new consideration was given for it, it is not therefore binding on Spence, whose confidence ivas abused by Scales. [2 Y. & B. 416; 4 Ala. 22; 11 N. H. R. 66; 9 B. & C. 206; ChittyJr. 1419; Chitty on Bills, 81; 3 Chitty’s Com. Law, 131; 1 Ala. 21; 3 Price, 38; 2 Bos. P. 518.]</p>

Writ of Error to the Circuit Court of Pickens. This was an action of assumpsit, at the suit of the defendant in error. The declaration, among other counts, is, for goods sold and delivered ; money had and received ; money paid, laid out and expended; money lent and advanced, and an account stated. The cause was tried on the plea of non assumpsit, a verdict returned for the plaintiff, and judgment rendered accordingly.

Assumpsit by Bell, suing for the use of Croach, as the assignee of a promissory note made by Moore, and payable to one Mangum, or order.

<p>Error to the Circuit Court of Coffee.</p> <p>This was an action brought upon a bond given by the defendant in error, upon suing out an attachment against the plaintiff in error, upon an affidavit that he was about to remove his property out of the State, so that thereby the plaintiff in attachment would probably lose the debt, or have to sue for it in another State.</p> <p>Upon the trial, the court charged the jury, that if the defendant, when he made the affidavit, had good reason to believe the fact to be as he stated it, in his affidavit, such belief, founded on sufficient reason, in law justified the suing out the attachment, and in that event the jury should find for the defendant, to which charge the plaintiff excepted, and which he now assigns as error.</p> <p>The statute which takes away the right to plead in abatement, the falsehood of the cause for suing out the attachment, gives a remedy on the bond for wrongfully suing it out. To the maintainance of an action on the bond, to recover damages, malice is not necessary ; in this respect it is wholly dissimilar to an action for a malicious prosecution.</p> <p>contended, that the existence of probable cause for suing out an attachment, was a complete defence to the action. They cited 4 Mass. 433; 17 Id. 190.</p>

Writ of Error to the Circuit Court of Tuskaloosa. At the term of the Circuit Court, holden in September, 1844, a judgment was rendered in favor of the State against the plaintiffs in error, William J. Hall, Lewis Christian, Elihu Turner, Joseph H. Williams, and Thomas Clements, stating that Hall being called to come into court to answer the State “ of a charge preferred against him by indictment for carrying concealed weapons, (as he was bound to do) came not, but made…

<p>1. Where no diminution is shown, but a record of forcible entry before a justice is entered, according to the truth of the case, a caiiorari, ought not to awarded; hut, querefif a refusal to-award a caiiorari is reversible by '-writ of error.</p> <p>2. The omission in a complaint for a forcible entry of the estate of the plaintiffin the premises, is perhaps demurrable, but it is certainly so when the complaint does not show the plaintiff was in possession at the time of the entry.</p> <p>3. In such a complaint, evidence that the defendant entered peaceably is proper.</p>

Detinue by the plaintiff in error, for two slaves and two horses. The defendant pleaded not guilty, and a special plea that he seized and sold the property by virtue of legal process, ¡against A. M. Degraffenreid, upon which issue was taken. In the progress of the trial, the plaintiff offered in evidence a deed executed by B. Degraffenreid, M. Degraffenreid, and A. M. Degraffenreid, to James C. Kennerly, in trust, to pay ■certain debts of A. M. Degraffenreid.

<p>Appeal from the decree of the Court of Chancery for the 15th District.</p> <p>The case made by the bill maybe thus stated.</p> <p>The complainant, Leah Meacham, a feme covert, sueing by her prochein amie, asserts that she is entitled to the separate use, possession and control of certain slaves, to-wit: Sarah and her children Spencer and Young, under the terms of a deed of gift executed by her mother Nancy R'enwick, on the 4th of October, 1819, in the State of South-Carolina. This deed is exhibited, and its habendum is in these words: which said three negroes, and the future increase of the said Sarah, I lend to the said Leah during her natural life, to her sole, separate and exclusive use and behoof, and after her death I give and grant the said negroes, and the future increase of the said Sarah, to the children lawfully begotten of the said Leah, share and share alike, as tenants in common, without any right of survivorship.”</p> <p>At the time of the execution of this deed, the complainant was the wife of John Mecham, who was living when the bill was filed, and both then resided in South-Carolina, but at the filing of the bill, in this State. After the delivery of the slaves named in the deed, Sarah, the woman, has had increase, a girl named Ann, (who also . has children, whose names are unknown,) George, commonly called Pompey, and Dick, together with other children. In February, 1843, one Thomas Williams and James H. Meacham, a son ofthecomr plainant, confederating together, fraudulently contrived to obtain possession of the slaves, Young, Dick, and Ann, who since has had a child, and for the purpose of defrauding the complainants, run the same slaves to Sumter county, and there caused them to be sold on some pretended claims or executions which Williams carried with him from Benton, with the intention and for the purpose of perfecting the fraud, designed by him and Mecham. Williams became the purchaser, aiid left the slaves with one William N. Wyatt, of Perry county. The bill then charges that John Gooden and Lawson McKee, with citizens of Randolph county, holding some pretended claims against said James H. Mecham, and combining with him to defraud the complainant, sued out an attachment against said Mecham, and caused the same to be - levied by one Richard Wheaton, who is said to be a bailiff of Randolph county, on the slave George, commonly called .Pompey, and took the said slave out of the complainant’s possession. That Wheaton,'combining with Gooden, McKee, and said Meacham to defraud the complainant, exposed the said slave to sale at an hour not authorised by law, and after the usual sale hour; that McKee bid one hundred dollars for the slave, and in pursuance of the fraudulent combination, and to prevent the complainant from interposing a claim,-the said Wheaton immediately, knocked him down at that sum, when in point of fact the slave was reasonably worth seven hundred dollars ; that McKee, immediately after it was announced he.was the purchaser of the slave, took him into possession, and placed him with one William Brown, who is charged as a confederate with McKee and Gooden, and the slave by him was carried to parts unknown, and as the complainant believes, is in the possession or under the control of the said Gooden, McKee, or Brown.</p> <p>The bill further charges, that the slave Spence has been taken from her possession, by her husband John Mecham, and carried to parts unknown, and that he is, as the complainant believes, under the control of the said Williams.</p> <p>The slaves are all charged to be family slaves, to whom the complainant is greatly attached, as the gift of an aged mother, and as having raised most of them. That for these reasons, as well as others stated in the bill, she cannot be compensated in damages for the conversion of the slaves.</p> <p>It further charges that Williams and Wyatt, as the complainant has reason to believe, will, in further consumation of their united fraud, carry the slaves Dick, Young and Aim, rvith her child, to parts unknown, beyond the jurisdiction of the court, unless restrained by injunction. And that Good-en, McKee, and Brotvn Avill do the same Avith the slave George.</p> <p>The bill then charges a general combination betAveen Williams, Wyatt, Gooden, McKee, BroAvn, Wheaton, and James H. Mecham, to wrong and defraud the complainant, and prays process as to them and John Mecham, her husband.</p> <p>The bill prays that the defendants may be compelled to restore the specific slaves, for an injunction against removing them out of the State, and for general relief.</p> <p>The chancellor dismissed the bill, on motion, as containing no equity. 1. Because the complainant had an adequate remedy at law. 2. Because it is multifarious, in joining different defendants, Avho have no connexion Avith each other in the matters complained of.</p> <p>The complainant appealed from this decree, and it is now assigned as error.</p> <p>made the folloAving points:</p> <p>1. By the terms of the deed of gift, the slaves are given to the complainant for life, to her sole and separate use. It is therefore an equitable estate, which a court of equity will sedulously guard and protect. (2 Story’s Eq. 608; Calhoun v. Cozens, 3 Ala. Rep. 502 ; Harkens v. Coalter, 2 Porter, 476 ; Bell v. Hagan, 1 Stetvart, 536, Swift v. Fitzhugh, 9 Porter, 39; ib. 59; Thomas v. Davis, 6 Ala. 113 ; ib. 362.)</p> <p>2. The action of Trover or Detinue tvould not afford an adequate remedy, even if the complainant Avas at liberty'to bring either of them. (Hardeman v. Sims, 3 Ala. R. 747 ; Baker v. Rorvan, 2 S. & P. 371.)</p> <p>3. A demurrer for multifariousness will hold only when' the bill claims several matters of different nature; but when One general right is demanded, though the defendants have separate and distinct rights, a demurrer will net hold. • (Mitford’s Plead. 239, 241; Turner v. Stone, 3'Ala. Rep. 485'; Kennedy v. Kennedy, 2 ib. 609 ; P. & M. Bank v. Walker, 7ib. 949.) . ' •</p> <p>4. If a bill charge combination, it cannot be considered as multifarious on demurrer. (Mitford’s Plead. 239; Bryant v. Peters, 3 Ala. Rep. 161; Moore v. Armstrong, 9 Porter, 700.)</p> <p>declined to argue the point that the bill was defective on account of having a remedy at law, but conceded the allegations of the bill conferred jurisdiction on the equity court. -</p> <p>But insisted the defect of multifariousness was apparent on the most casual inspection. Williams and Wyatt have' no connexion whatever with McKee, Gooden and Brown. Their acts, with respect to the different slaves, have no connexion, and if a demurrer will not lie in a case like this, a feme covert, with a separate estate, may join as many defendants as shejias distinct articles of property.</p>

The bill was filed by the plaintiff in error, and charges, that he was the accommodation indorser of a bill of exchange for ¡$5,194 10, drawn by Whitman & Hubbard, and discounted for their benefit by the Bank of Orleans. That the bill was protested for non-payment, and judgment obtained thereon against complainant, in the name of Nisbet, an officer of the Bank.

<p>Writ of Error to the County Court of Morgan.</p> <p>Motion by the Bank, to have judgment against Douglass for the amount of a promissory note dated at Florence, Ala. October 14, 1840, payable to the Bank six months after its date, for $802 80, executed by one Bromley as principal, and by Douglass and one Carrol as sureties.</p> <p>The defendant pleaded — 1. Non assumpsit. 2. Actio non, because he says that he, the defendant, at the time of making, &c. to wit: on the 14th. day of October, 1840, was a member of the General Assembly of the State of Alabama, to wit: a member of the House of Representatives of the General Assembly of the State of Alabama, from the county of Lauderdale in said State, and this he is ready to verify; wherefore, &c.</p> <p>The Bank demurred to the last plea, and the court overruling the demurrer, gave judgment for the defendant.</p> <p>This is now assigned ás error.</p> <p>[insisted that the statute which prohibits members of the assembly from being sureties, is directory only, and does not avoid the security. ' ' "</p>

Trespass quare clausum fregit, by the plaintiff, against the defendant in error: The defendant pleaded not guilty,, liberum tenementu,mT and justification.

Assumpsit by Davis against Carlisle. The declaration contains two counts. 1. On a due bill in writing, made by Car-lisle, on the 12th of October, 1842, whereby he promised to pay the plaintiff immediately the sum of seventy-five dollars. 2.

<p>1. The declaration of a father-in-law, made during the interval which elapsed, between the marriage of Ms daughter, 'and her leaving his house with her husband, to commence housekeeping, explaining the nature of the title he.intended to make to slaves, which Ms daughter was to taire as her portion, are competent evidence to show, what title he intended his son-in-law should have in them. Declarations must afterwards would not be evidence for Mm.</p> <p>2. The court cannot exclude the testimony of a witness, because in the opinion of the court, he denies onhiscross-examiuation, what he had sworn to upon the examination in chief.</p> <p>3. No demand is necessary in trover, where the defendant had employed a slave for some time previous to the suit, in the ordinary domestic avocations, and upon the trial asserts a title in himself.</p>

Writ of Error to the Circuit Court of Butler. Assumpsit by the defendants, against the plaintiffs in error. The writ is sued out by Angus Brown and George Reese, who sue for the use, &c. The declaration is in the name of Angus Brown, who sues, Spc. To which the plea of non assumpsit was filed.

Trover by the defendant, against the plaintiff, for the conversion of a slave. Upon the trial, as appears from a bill of exceptions, the plaintiff produced and offered to publish, a packet, containing a deposition received by the clerk, through the post office at Cahawba.

<p>Error to the Circuit Court of Montgomery.</p> <p>. Motion by the Bank for judgment against the plaintiff in error, as indorser of-a bill of exchange for $1000, and judgment for the Bank.</p> <p>Upon the trial, as appears by a bill of exceptions, the defendant read to the jury, the second section of the charter of the Montgomery Rail Road Company — a communication from Chas. T. Pollard, its President, dated 28th February, 1838 — the report of a committee of the Directors of the Bank, dated 7th March, 1838, upon said communication — a contract between the Bank and the Rail Road Company, made shortly after the report was adopted by the Bank — the remonstrance of certain Bank Commissioners, addressed to the President and Directors of the Bank —the report of a committee of the Directors upon the remonstrance, and certain engraved notes or bills, resembling ordinary bank notes or bills, used for circulation, issued June, 1838, under the seal of the Montgomery Rail Road Co., in sums of three and and twenty dollars respectively, issued by the Rail Road Co. payable twelve months after date, to divers persons respectively, at said bank, signed by N. E. Benson, as Secretary, and Charles T. Pollard as President; and proved that the notes and bills were engraved at an expense of not less than $500, the blanks being filled up with a pen. These papers were read from a printed pamphlet, by consent, and made part of the bill of exceptions.</p> <p>It was also proved by Pollard, that the communication, report, contract, &c. related to the same transaction — that the notes, or bills read to the jury, issued by the company, were the “ bills of credit,” “ notes,” “ bills,” “ promissory notes,” and “ paper of the company,” referred to in the said communication, report, and contract — that the notes, bonds, or bills, were issued in no instance, except to pay debts due by the company, and then only to their creditors. That the notes or bills were made payable to the .creditors respectively, who were bona fide creditors, for work and labor done and materials furnished.</p> <p>The defendant proved by the cashier of the Bank, that the notes of the Rail Road Company, were received by the Bank in payment of the debts due the Bank from its debtors, and did not receive any from the company — that these notes were the only consideration for the bill sued upon, and certain other bills, discounted by the Bank at the same time. That the Wetumpka and Coosa Rail Road Company, made several applications to the Bank for a large loan, which the Bank rejected. That the same company, then requested the loan of $20,000 in the notes or bills of the Montgomery Rail Road Co., which the Bank had in its vaults, stating that it would answer them as well as Bank paper; and that accordingly the loan was made on the security of bills drawn by individuals of the company.</p> <p>He further proved, that the Bank, before it received the notes of the Montgomery R. Road Co. in payment of debts, was secured against loss, by promissory notes deposited with it by the Rail Road Co. and also by a mortgage- upon the road and its fixtures.</p> <p>The defendant further proved by Silas Ames, that he was a Director of the Bank in the year 1838, and proposed to ask him, whether the Directors of the Bank knew that the paper which was to be issued by the Rail Road Co. under the contract with the Bank, was intended by the Company as current Bank bills, or as a circulation in the community. The plaintiff objected to the question, and the court sustained the objection.</p> <p>The defendant then proved, that the notes of the company circulated as money in the community, sometimes at par, and sometimes under par in small amounts. It was also in proof, that the plaintiff did not receive the Rail Road notes on deposit, and that at the time of the arrangement between the plaintiff and the Rail Road Co., the latter was greatly embarrassed, but in consequence of the arrangement was enabled to resume the work, and carry it on to its completion.</p> <p>This being all the testimony, the court charged the jury, that they must consider all the facts and circumstances before them and ascertain the intention with which the Montgomery Rail R Co. issued the said notes or bills. That the question of intention was a matter peculiarly for their determination — if they were convinced that the Rail Road Co. issued these notes, or bills, to pay their debts, and at the same time to circulate in the community as current bank bills, and if the Bank knew they were so- issued, then if they were the consideration of the bill sued on, they must find, for the, defendants, unless they were satisfied by affirmative proof that the Bank had received the notes, or bills, of the Rail Road Company in a regular business fransaction, from a bona fide holder, who had received them without knowledge of the intention to circulate them as money. That if the Bank so received them, or from one who had received them from some bona fide holder, ignorant of such intention to circulate them as money, they must find for the plaintiff.</p> <p>The defendant prayed the following instructions: 1. That though the creditors of the Rail Road Company, to whom the Company paid these notes, or bills, did not know they were intended to circulate as money, yet if they were received by the Bank from one who knew they were issued by the Company to circulate as money, and were received by the Bank under the contract to circulate them as money,they must find for the defendant ; which the court refused.</p> <p>2. That the communication of the Rail Road Co. to the Bank —the report of the committee of the Directors of the Bank upon that proposition, the contract between the Bank and the Rail Road Company, if founded upon the said communication and report, together with, the report of the committee of the Directors upon the remonstrance of the Bank Commissioners, and -the form and appearance of the notes or bills of the Rail Road Co., are sufficient evidence that the Bank knew that the notes and bills of the R. Road Co. were issued to circulate as money, and that no recovery can be had on this bill, if the R. Road Co. notes formed its only consideration ; which the court refused to give-.</p> <p>3. That if the communication, report, contract, and other facts and circumstances set out in the preceding prayer, were sufficient to put the plaintiff on inquiry, to ascertain the intent with which the Rail- Road Co. issued these notes, or bills, and if' the notes- or bills were issued to pay debts, and circulate as money, and formed the consideration of the bill sued on, they must find for the defendant ; which the court refused.</p> <p>4. That if any thing contained in any of the papers, or documents read to them, or the form or appearance of said notes, or bills, was calculated to cause the plaintiff to suspect, or believe that the notes.or bills were issued, as well to circulate as money as to pay debts, then the plaintiff was bound to inquire into the intention with which they were issued, and if the purpose was to circulate them as money, as well as to pay debts, and they formed the consideration of the bill sued on, the plaintiff could not recover.</p> <p>5. That if the words “ promissory notes,” used in the first, fourth, and eighth paragraphs of the contract between the Bank and the Rail Road Co., and the word “ bills,” in the fifth paragraph, mean the same thing, or were intended to apply to the same papers, or issues of said Company, then said contract and the notes, bills and bonds, of the Company, issued pursuant to the contract, were utterly void ; and if these bills, or notes, constituted the consideration of the bill sued on, they must find for the defendant; which the court refused.'</p> <p>6. That if the communication of Pollard, the report of the Bank Directors, founded upon it, and the contract between the Bank and the company, form parts of an entii’e transaction, between the Bank and the Rail Road Company, or that the contract was founded upon the communication and report, and that the terms “ promissory notes,” and bills, contained in the contract, mean the same thing, as the words “ bills of credit,” in the said communication, and the words “ bills,” “ notes,” “ paper of the company,” in said report — then the said contract between the Bank and the Company, was void ; and if the bill sued-upon, was received by said Bank, in consideration of said notes, bills’ or bonds of said company, issued in pursuance of said contract, to circulate as money, they must find for the defendant; which the court refused.</p> <p>7. That if the Rail Road Co. stated to said Bank, that the Company proposed to issue their notes, or bills, in payment of debts due by the Company, and to circulate as money — that the Bank agreed to receive the notes in payment of debts due to said Bank, and pay out the same as circulation — that said Company then issued their notes, bills or bonds, bearing the form and similitude of bank notes for circulation — that in pursuance of said contract, the Bank received said.bills, bonds or notes, and that said bills, bonds or notes constituted the consideration of the bill sued on, then they must find for the defendant; which instruction the court refused to give.</p> <p>8. That if the Rail Road Co. issued their notes, bills or bonds, to pay their debts and circulate as money, that said bonds, notes, or bills, bore the similitude of ordinary bank bills, used as circulation — that the said bonds, bills, or notes, were received by the said bank, with the intention to issue them as a circulation amongst the people, and that said bonds, bills or notes, constituted the consideration of the bill sued upon, they must find for the defendant; which the court refused. To all which the defendant excepted.</p> <p>, Judgment being rendered against him, he now assigns for error—</p> <p>1. The refusal to permit the witness, Ames, to answer the question propounded to him.</p> <p>2. The charge given to the jury.</p> <p>3. The refusal to charge as moved for.</p> <p>The witness, Ames, should have been required to answer the question,-which was not, what the intention of the Rail Road Co. was, in emitting the the paper, but whether the Bank had knowledge of any such intention This was a fact, susceptible of a definite answer. If it be said the* contract of the parties was the best evidence of their intent, then the charges moved for should have been given.</p> <p>The instruction given to the jury was clearly erroneous, and calculated to mislead them, as there was no" evidence of the intent with which the notes were emitted. It was also erroneous in the assertion that there could be innocent holders of paper not negotiable, so as to shut out an inquiry into the consideration. [2 Gall. 560.]</p> <p>Since the act of 1837, the title to a promissory note, can only pass by indorsement — and the fact that they-were not indorsed was notice.</p> <p>The form and appearance of the notes was such, that no one could take them without actual, or constructive notice that they were intended to circulate as money. [12 Pick. 545; 14 Pet. 318 ; 1 Hill, 11, 17; 2 lb. 241 ; 9 Paige, 471: 4 Hill, 442.]</p> <p>All the instructions prayed for ought to have- been given, because it was the duty of the court to construe the written evidence, which was clear and explicit, and in accordance with the opinion of this court, when this question was here before. [5 Ala. 251.]</p> <p>The payment of the Rail Road notes on the discount of this bill of exchange, was merely the consummation of the contract made by the Bank with the Company, by which it agreed to receive and give circulation to its notes, and having received them with this intent, the notes in the hands oí the Bank were void, without reference to the contract, and could not form a valid consideration for any contract. For a case expressly in point, see 2 Hill, 451, 458.</p> <p>The- notes having been illegally issued, were not binding on the Rail Road, and were void in the hands of all who knew of the illegal intent, and of this the form of the bill was sufficient to show they were intended to circulate as money, and the Company, was not estopped from making this defence. [8 G. & J. 248.]</p> <p>It is a general principle, applicable to all contracts, that whatever may be fairly inferred from its terms, is in judgment of law contained in it. [14 Wend. 114; 5 Hill, 147; 10 Bing. 107; 7 Wend. 34; 7 Port. 497; 2 Ala. Rep. 425; lb. 451; 1 lb. 160, 436,]</p> <p>They also cited 9 Porter, 39, 67; 1 Ala. 607,622; 4 Peters, 410.</p> <p>There is no variance in the testimony now, and when this case was here before, and the charge of the court is in direct conformity with the opinion of this court. .[5 Ala. 251.]</p> <p>The Bank having under its contract received these notes in payment of debts, could have recovered them from the R. Road Co., as their contract with the R. Road Co. was to receive such notes only as the Company could lawfully issue, and having exchanged this paper, for that of the defendant, may recover from him. [9 Peters, 378.]</p> <p>But if the contract between the Bank and the Rail Road Co. was illicit, it is no defence to the defendant. [3 Rand. 136; 8 Wheaton, 349; 2 Ala. 486; 9 Mass. 423; 16 Id. 94; 10 Peters, 344.]</p> <p>The trae test, whether a demand connected with an illegal transaction is capable of being enforced at law, is, whether the plaintiff requires any aid from the illegal transaction to establish his case. [7 Taunton, 426; 2 Marsh. 542; 1 Caine’s, 104; 6 Ohio, 21; US. &R. 164; 15 Eng. C, L. 559 ; 3Vesey,612;l H. & M. 577; 3 Dess. 135.]</p>

Assumpsit on promissory note, by the defendant, as administrator of Thomas Few, against the plaintiff in error.

<p>Writ of Error to the Orphans’ Court at Montgomery.</p> <p>So far as the nature of this proceeding can be ascertained from the transcript sent to this court, it may be thus stated:</p> <p>Martin, as the administrator of the estate of Joseph Fitzpatrick, presented his accounts and vouchers to the Judge of the County Court for settlement, and thereupon, on the 9th July, 1845, an order of publication was directed, for all persons interested in the estate to appear and show cause, on the 10th September, afterwards, why the said account should not be stated and allowed.</p> <p>The matter was afterwards continued to the 12th September of the same year, when, as the judgment entry recites, the application came on to be heard — it appearing due pub-. lication had been made by the administrator, &c. and due notice having been given to the creditors of the said estate. Nathan Harris, Esq. on behalf of the creditors of said estate, appeared and contested said account and settlement; and a,t the suggestion of the parties, a jury was summoned, and issue being joined, was impannelled, and returned a verdict that they found the account as filed by the said administrator correct. Whereupon it was adjudged and decreed by the court, that the said account be allowed, and ordered of record.</p> <p>A bill of exceptions is found in the transcript, which sets out, that on the day set apart for auditing and allowing the accounts of Abram Martin, administrator, one was presented, a copy of which is set out. The account exhibited is for various sums, amounting in all to $2465, as due the admintrator, for defending suits by a number of individuals against him, as administrator of said estate.</p> <p>Peter Harris, one of the creditors of said estate, objected to the allowance of said account, and thereupon a jury was impannelled to pass upon it.</p> <p>Martin, the administrator, proved that he, as an attorney and counsellor at law and solicitor in equity, had rendered services in the cases stated in the account exhibited ■; that the personal skill and services of an attorney' and solicitor were necessary; that the defences made and sustained were not within the ordinary duties of an administrator, could not have been conducted by any other than a lawyer, and that much of Martin’s time, research and personal skill was required and exerted to the accomplishment of these objects; that the business of the estate was involved in great difficulty and ■obscurity, and the services so rendered were valuable and beneficial, and reasonably worth to the' extent charged by Martin. He also proved that many other cases were prosecuted against the estate, in which he was unable to make a successful defence, and for which he made no charge, but confined his demand for compensation for personal services exclusively to cases in which the interest of the estate was advanced and benefitted by services rendered in his professional character, excepting one case only, which however presented such questions of doubt as made it proper to litigate.</p> <p>On this state of facts, the court instructed the jury, that if they believed Martin had rendered services as an attorney and counsellor at law, and asa solicitor inequity, in suits brought against him as administrator of said estate, and that such services were beneficial to the estate, then he was entitled to retain out of the funds which he had received as administrator, whatever sum of money such services were reasonably worth, in addition to the commissions allowed for collecting and paying over the funds of the estate.</p> <p>The contesting creditor excepted to the charge, and here assigns -it as error.</p> <p>insisted—</p> <p>1. The general rule, as shown by the English cases, is, that a trustee shall have no allowance for his trouble and loss of time. [29 vol. Law. Lib. 222.] If he employs persons of skill he will be allowed the payment, but will not be allowed to charge for the same services done by himself. [10 Law. Lib. 66; 241b. 224; .14 Eng. Ch. 45; 17'Ib. 129; lb. 362.]</p> <p>2. When a solicitor, also a trustee, has been allowed compensation as such, the allowance depends on contract, or is directed by the will or deed. [14 Eng. Ch. 51; 17 lb. 559; 5 Paige, 485 ¿ 8 lb. 412 ; 9 Ib. 398.]</p> <p>3. But even in the American courts, where the most liberal rule obtains, the trustee is only compensated for extra services; not within the scope of his duties as trustee, but not for those requiring official skill to perform them. [1 Johns. Ch. 27; lb. 527; 2 Hawks. Law andEq. 30; 2 Paige, 287; 6 lb. 213.</p> <p>4. According to our own decisions, an administrator is entitled to a just compensation for his services rendered in that capacity and nothing more. [3 Por. 327 ; 9 lb 664; 5 Ala. 315; 6 Ib.’23 ; 7 lb. 98. j</p> <p>argued—</p> <p>1. The doctrine of the English courts has never obtained in this country; with us an administrator is entitled to reasonable compensation according to his services. [3 Porter, 327; 9 lb. 667; 4 H. & M. 57, 69; 2 J. J. M. 205; 5 Ala. Rep. 314; 7 lb. 517; Powell v. Powell, last term.] And under special circumstances, an extraordinary allowance will be given. [4 H. <fc M. 57; 5 Munf. 224; 3 lb. 198 ; 1 lb. 150; Hason v. Wallace, 1 Rich. Eq. 18.] If the administrator acts as overseer himself, he can have allowance for such services, or fpi any other act not specially in the scope of the trust. [Lee v. Lee. 6 G. & J. 316 ; 1 Rich. Eq. 18 ; 5 Ala. Rep. 314.]</p> <p>2. The most proper rule seems to be the one adopted in South Carolina; where a claim for services is preferred, it is referred to a jury. [1 Dess. 542; 4 lb. 529; 1 McCord Ch. 4; 2 lb. 213.]</p> <p>3- It is evident however, that no precise rule can be laid down; the principle recognized in a multitude of cases is, that the allowance shall be according ‘'to the necessity and services. [9 S. &• R. 209; 2 Lomax on Ex. 327; 9 Porter, 667; 15 Pick. 484; 12 lb. 183; 8 N. Hamp. 444; 5 Dana, 42; 3 Harr. Ch. 68; 5 Ala. 314; 16 Mass. 228; 11 Pick. 124; 5 TÍonroe, 65; 1 Pirtle’s Dig. 430, § 110.]</p> <p>4. The rule of no compensation seems local to England, and may have arisen from the idea that legacies to executors were given as a remuneration. [4 Tesey, 74; 2 Atk. 58.] However this may be, compensation has been allowed them for beneficial services. [2 Swan. 453; Lewen on Trusts, 227; Malcolm v. O’Callaghan, 3 M. & C. 58; Carmichael v. Wilson, 12 E. C. 610 ; 2 Mllooy, 537.]</p>

Writ of Error to the Orphans’ Court of Mobile. Petition by the defendants in error, for the allotment of dower. The petition was filed by Mary A. Frowner, widow of Samuel Acre, for dower in six several parcels of land in Mobile, which had been aliened by her husband in his lifetime, and to'which she had not relinquished her dower.

Writ of Error to the Orphans’ Oourt of Montgomery. The plaintiff in error filed his accounts and vouchers, as administrator, “ which were examined and ordered to be filed for the examination of all concerned,” and publication ordered as required by law.

<p>Writ of Error to the Orphans’ Court of Madison.</p> <p>In the matter of the final settlement of the estate of Wm, E. Gardner, deceased, upon the application of Purdom, the administrator.</p> <p>In stating the account, preparatory to distribution, the distributees produced a writing signed by Purdom, the 4th January 1840, admitting the deposit by the intestate, in his hands, of $4,000, to secure him and one Jolley, who were recognizors for his appearance before the then next term of the Circuit Court of Madison, to answer a charge of murder. If Gardner attended thecourt, from court to court until discharged by due course of law, then the money was to be returned, but should he fail, then the money was to secure Purdom and Jolley, for any liability that might accrue,- and asked the court to charge Purdom with the amount of the receipt as so much in his hands, subject to be distributed. The administrator opposed this charge, except to the extent of $1500, with which he paid debts of the decedent. The administrator proved, that as the surety of the decedent, on the charge before named, he was not discharged from liability until the April term, 1841, of the Circuit Court of Madison. He further proved, that at the time he was appointed administrator, —the 4th March, 1841 — he owed debts to the amount of $30,000. The distributees then proved he had means to pay $20,000, but failed to prove any other or greater means; also, that part of these means was real and personal estate, in Madison county, of the value of $5,000, and that there were but two judgments for small sums against him when appointed administrator, and these were paid without selling the property above stated. Purdom then proved that certain slaves, included in the above estimate, were sold by the sheriff, under executions on judgments obtained in February, 1842. Also, that in April of that year, he conveyed certain real estate, siuate in Madison county, and certain slaves, in trust, first, to secure a debt upon which certain named persons were sureties, for the sum of $2383, and second, to secure his sureties for this administration. He then proved, the lot and slaves thus conveyed, were th'e same as previously estimated by the witnesses for the distributees, and that the debt therein mentioned was yet unpaid, except the interest accrued upon it.</p> <p>On this state of proof, the court was of opinion that Purdom, as administrator, was liable for the sum of money deposited with him, with interest from the 1st May, 1841, and charged him with the same.</p> <p>The balance due from the administrator, and decreed to the distributees, was $1021.</p> <p>Purdom excepted to the ruling of the court above stated, and now assigns it as error.</p> <p>insisted—</p> <p>That it was improper in this instance to charge the administrator with the debt due from himself, as he was insolvent when the administration was committed to him, and had ever since continued in that condition. Besides this, he was not a debtor of the decedent, when the administration was committed, as he was not released from liability until April afterwards. The effect of the decree in this case is, to make the sureties of the administrator sponsors, not for his honesty in the duties of the administration, but for the payment of the debt subsequently owing to the estate. The idea that an administrator is to be charged with debts due by himself, to the decedent, is founded on the presumption that he has the ability to do so, and when this presumption is rebutted, the Orphans’ Court has no jurisdiction to charge him.</p> <p>cited Stephens v. Gaylord, 11 Mass. 256 ; Winship v. Bass, 12 Mass. 199; Hays v. Jackson, 6 lb. 150; Childress v. Childress, 3 Ala. Rep. 752; 7 lb. 298.]</p>

<p>Writ of Error to the Circuit Court of Monroe.</p> <p>Pebt, on the official bond of E. T. Broughton, against his sureties, by the Governor, for the use of the administrator, de bonis non, of W. T. Coolidge. The declaration alledges, the execution of the bond, &c, the appointment of Broughton, administrator; that he wasted the estate, and that the administrator de bonis non had recovered a judgment against him, which has been returned, no property found. The estate had been declared insolvent. The defendants demurred to the declaration, and the court sustained it, and rendered judgment for-the defendants, which is now assigned as error.</p> <p>relied on the act of 1837, Clay’s Dig. 326, § 76.</p>

At the spring term of the Circuit Court, holden in 1844, a judgment nisi was rendered in the cause entitled thus : “The State v. William Faulk and Gaines Faulk,” reciting, that the State came by the solicitor, and “ the defendants came not, but made default after being solemnly called; and it appearing to the court, that the said Gaines Fa^k gave bond in the sum of two hundred dollars, for his appearance at this term, to answer the charge against him in said case, with…

Carter and Womack, on the 19th of March, 1843, exhibit-en their .bill in Chancery, in the Chancery Court of said district, against one Skanes, to obtain a decree of foreclosure on a mortgage by him. of a slave.

The will of Samuel H. Nelms, being produced to the court, and proved, it was established, and letters granted to Edward D. King, the executor appointed… Held: that the said final settlement remained unreversed, and unaltered, as it respected the several amounts found to be due to each of the creditors of Samuel Nelms, deceased, and was in no respect erroneous, except in decreeing that Chandler should pay the money which was then determined to be in the hands of McLaughlin.

<p>1. In a summary proceeding by motion against a sheriff, and his sureties, for the failure of the former to return an execution, an issue without regard to technicality, may be made up under the direction of the Court; and though the terms “ not guilty” are not the most appropriate plea in such case, yet they are sufficient to throw upon the plaintiff the onus of supporting the.allegations of his notice.</p> <p>2. A sheriff may defend a motion against him for failing to make due return of an execution, proving that the execution was not supported by a judgment. But it will not avail him to show that the execution was returned after the day appointed, and quashed for some defect in itself alone.</p>

Writ of Error to the Court of Chancery for the first District. Held: the claim of the child cannot be defeated by the devise of the parent. [2 Tern. 19 ; 2 Cox, 92; 15 Ves. 50.] Nor by his mortgage. [2 Yin. 120.] Nor by a marriage settlement. [Math. onPr. Ev. 60,] The only case in which the property has been subjected is Doyle v. Sleeper, 1 Dana, 531, and then the court was divided. 4.

Ejectment by the defendant in error, for a lot of land in Mobile. The plaintiff below relied on a deed executed to him by the coroner, on the 8th December, 1843, upon a .sale under a judgment of Steele & Bancroft, executors of J. Mc-Clary, against James Keho, obtained in the Circuit Court of Mobile, on the .... day of.......

Appear from the Circuit Court of Mobile. This was a proceeding by notice and motion, at the suit of the appellant, to recover of the appellees and Robert D. James the amount of a promissory note made by them on the 11th March, 1841, by which they promised to pay Twelve months after date, to B. Gayle, cashier, or bearer, twenty-six thousand two hundred and thirty-one 14-100 dollars, with interest from date, for value received, negotiable and payable at the Branch of the Bank…

<p>1. A bequest of perishable chattels to one for life, with remainder to another, without some direction as to the mode of enjoyment, shows the intention of the testator, that each taker shall have the same mode of enjoyment, and this is the rule, whether the bequest is general or specific, or of a residuum. But the general rule is controlled by the intention of the testator shewing how the tenant for life is to enjoy the estate: Heldtherefore, that when the bequest was, that so much of the testator’s stock or town property as was sufficientto pay his debts, should be sold, and the residue of his property was given to Ms wife dining her life or widowhood, (with remainder over,) to use in any necessary or lawful way, to sell for a valuation, or to dispose of all or any part for her convenience or necessary use, was a bequest of the use of the property in land, and that the executors of the wife were accountable for such only as remained in specie, or were sold during her life-time, but not for necessary use.</p>

Trial of right of property, in which the defendant in error was claimant, and the plaintiffs in error plaintiffs, in an execution against one Robert B. Patterson.

This was an action of trespass, at the suit oftflfe defendants in error, to try the title to a tract of land, particularly ■described, as well as to recover damages for the occupation thereof by the plaintiff. The cause was tried upon the general issue, a verdict returned for the plaintiffs, and judgment rendered accordingly.

Several suits were commenced in a justice’s court, in the name of Carville against Reynolds, to recover small sums due on witnesses certificates to Carville, who was summoned at the instance of Reynolds, in a suit where he was defendant, and one Atkinson plaintiff. These certificates were all issued on the 2d November, 1840.

<p>1. An intention to defraud creditors by a purchaser, will vitiate a public as well as a private sale. The fact merely, that a mortgagee gave notice at an execution sale of his mortgage, and was thereby enabled to buy the property at a reduced price, is not necessarily a fraud upon creditors. To be such, the deed must have been covinous, or there must have been such a concert with the defendant in execution, as to create a trust between them.</p> <p>2. A judgment is evidence even for or against strangers to it,fof the fact that such a judgment was rendered.</p> <p>3. Evidence of unsatisfied judgments, is competent testimony to raise a presumption of insolvency.</p> <p>4. The record which the clerk is required to make, of all the proceedings in a suit, is the final record of the cause, answering to the judgment roll of the common law, and is the only legal evidence of the judgment, to be established by the production of the record itself, an examined copy, or a copy attested by the clerk.</p> <p>5. Whilst the cause is progressing, the papers are quasi records, and until the final record is made, the papéis and proceedings in the cause are evidence, and the best evidence of the facts they import.</p>

This was a motion against the plaintiff in error as sheriff for failing to make the money on an execution which had been placed in his hands, at the suit of the defendant against the goods and chattels, fyc. of James B. Thompson. The cause was submitted to a jury, who returned a verdict in favor of the plaintiff, for the amount of the execution, 'with interest.

<p>1. The general rule in equity, that the proof must correspond with the allegations, applies only when the evidence discloses a cause for relief different from that set up by the pleadings.</p> <p>2. A deed of trust providing that the trustee shall first pay all debts described in the deed for which the complainant was liable, or liable in any other manner, and afterwards providing for creditors generally, does not authorize the trustee to pay the complainant as a preferred creditor, any other debts than those paid by him as surety,</p> <p>3. If previous to executing the deed, the grantor agreed that a suit against the complainant as a surety Avouldbe defended by him, at his own expense the counsel fees afterwards paid by the surety, in defending the suit, are liabilities under the deed, but if expended in resisting the suit, the payment is not made as surety, and therefore is not within the deed,</p>

Writ of Error, allowed in vacation, by one of the Judges of this Court, to the Circuit Court of Dallas. The prisoner was indicted, tried and convicted on indictment for the murder of one Edmund, also a slave, at the fall term, 1845. At the trial there was no direct or positive proof against the prisoner, but all the evidence was circumstantial.

Writ of Error to the Court of Chancery sitting at Livingston.