Volume 9 — Porter's Alabama Reports (1834–1839)

Assumpsit on a bill of exchange, tried before A. Martin, J. The defendant in error brought an action of assump-sit against the plaintiff, in the Circuit court of Montgomery, as the drawer of a bill of exchange, of the following tenor: « $7000. New York, Dec. 20th, 1836. “Seventy-seven days after date of this first of exchange, (second of the same tenor and date unpaid,) pay to Messrs.

Detinue for a slave, tried by Pickens, J. Yerdict and judgment for plaintiff. The bill of exceptions stated, that plaintiff below relied for title on a deed of marriage settlement — which deed, she alleged was lost, and offered the following proof to establish the loss of the deed. The plaintiff’s counsel deposed, that he had in his possession, a deed delivered to him by one Thompson, the agent of plaintiff to institute this and other suits.

Detinue for a slave — tried by Pickens, X Verdict and judgment for plaintiff. This case is, in most of its features, the same as the case of Swift vs. Fitzhugh, previously decided — except that in this case, the slaves sued for were purchased by the plaintiff in error, of John II. Maguire, on the fourteenth of February, eighteen hundred and thirty-four.

Assumpsit on a bill of exchange, — tried before Chapman, J. The defendant in error declared against the plaintiff, in the Circuit court of Tuscaloosa, as the drawer of a bill of exchange, of which he was also the drawee and acceptor. Judgment final was rendered by default, and the plaintiff having brought the chase here by writ of error, assigned— 1.

Bill of foreclosure, tried by Harris, J. ■ This was a bill in equity, exhibited by Richard H. Redwood, in the Circuit court of Mobile county, against Henry S. Levert, Samuel A. Roberts, John Mayrant, jr. and John W. Freeman. It set forth an indenture of mortgage, executed to secure the payment of certain promissory notes, therein described.

Assumpsit on a promissory note, tried before Pickens, J. The defence will appear in the statement below. A verdict was rendered for defendant, on which judgment was entered up. The following was the cause of action: “ One day after date, I promise to pay Jé (administrator of the estate of George Clarl or hearer, with interest from the first day of January' the sum of sixty-five dollars, for value receh%dLI3S(fLátfJ£Y. 1836.

The plaintiff brought assumpsit, in the County court of Mobile, to recover of the defendant, damages, sustained in consequence of the defendant’s refusal to receive of him, a large number of oranges, which he had purchased, and for which he had agreed to pay a sum of money, amounting to seven hundred and fifty dollars. The case was tried on the general issue.

Libel of a steam-boat, for provisions and stores furnished. The defendant in error filed his libel in the County court of Mobile, against the steam-boat Tallapoosa, for provisions and. stores furnished the boat, at the request of the master of said boat, and the boat was attached and seized by the sheriff to answer the libel, and the parties who prosecuted this writ of error, were the individuals to whom the steam-boat was delivered, after its seizure under the attachment.

Debt on bond, alleged to be lost. The declaration contained two counts. The first was on a bond conditioned to make a title to land, when defendant obtained a pre-emption for the same, which bond was alleged to be lost; and the second charged a general indebtedness, without averring a promise to pay on request. Plea— general issue. Terdict and judgment for plaintiff.

Assumpsit on a promissory note — tried before Judge P. Martin.

Indictment for malicious mischief — tried by Judge A. Martin. In this case, the defendant was indicted for unlawfully, wilfully and maliciously killing four hogs, the property of John B. Tuck. Defendant plead the general issue. On the trial, the competency of the witness, who was also the prosecutor — Tuck—was objected to. The witness then, under seal, transferred his interest in the suit to the trustees of the Talladega Female Academy— who accepted of it.

Assumpsit on a bill of exchange. This was an action of assumpsit, brought by the defendants in error, as the indorsees of a bill of exchange. The plaintiff below filed a declaration, as follows: “ The State of Alabama, Mobile county. “ County court, June term, 1837.

Scire facias on a bail bond — tried by A. Martin, 5. This was a proceeding by scire facias, in the usual form, against bail, in the Circuit court of Talladega. From the record, it appears that the defendant pleaded— 1. Nul tiel record: 2.That no sufficient affidavit had been made, to au-thorise the requisition of bail of the principal.

Slander — before Crenshaw, J. This was an action of slander, brought by the plaintiff, against the defendant in error. The words charged to have been spoken are, — The admission of this testimony to mitigate the damages, is now assigned for error.

Assumpsit — tried before A. Martin, J. This action is founded on a promissory note, signed by 2.

Detinue — tried before Chapman, J. The plaintiff in error brought an action of detinuei in the Circuit court of Jefferson, against the defendant, for the recovery of a horse. To which the defendant pleaded— 1. Non-detinet; 2. That as a constable, and by virtue of sundry executions, he levied on, aud sold the horse,'With the detention of which he was charged.

Indebitatus assumpsit. The questions which arose in this case, were confined to the execution of a commission to examine an absent witness. At the trial of this cause, before the County court of Dallas, the plaintiff offered to read in evidence, the depo- ■ sition of a witness, taken under the third section of the 'act of the twenty-third of December, eighteen hundred and thirty-seven.

Attachment — before Shorfridge, J. This was a suit in the court below, commenced by the defendant in. error, by attachment, against one Christopher McLure, as an absconding debtor, in which the plaintiff in error was summoned as garnishee.

<p>Error to Talladega Circuit court.</p> <p>Trespass, guare clatisum fregif.</p> <p>This was an action of trespass, guare ■ .clausum fregif, brought by the defendant in error, against the plaintiff in error, and eight others. The defendants pleaded severally, not guilty.. The jury found the plaintiff, Reuben Golding, guilty, and assessed the damages to fifty .dollars: six others were found guilty,'and the damages as*, sessed to six and a fourth cents, each; and two were found not guilty. The plaintiff below remitted the damages as to the six defendants who were assessed' at six' and a fourth cents each, and the court rendered judgment against all the defendants who were found guilty for-the sum of fifty dollars, besides costs. "</p> <p>The error assigned is— ■' .</p> <p>That the court erred in rer.de’-ing judgment against, all the defendants for fifty dollars and costs. •</p>

Trespass to try title — before Pickens, J. This action of trespass, was brought by the defendant in error, against the plaintiff in error, to recover a lot of land in the city of Mobile.

Case for deceit, tried before Han'is, J. This was an action of trespass, on the case brought by the defendant in this court, against the plaintiff.

Assumpsit on a promissory note. This was an action by one Norwood, on a note made by plaintiff in error. • On the trial below, after the evidence, argument and charge of the court — the plaintiff’s attorney suggested that plaintiff had died before issue joined, and moved to make Cook, the defendant in error, party plaintiff, as administrator; which the court allowed, and defendant excepted.

Libel against a steamer, for the wages of hands. In this case, the defendant in error, and twelve others, exhibited their libel, in the County court aforesaid, against the steamer Fox, for wages due them, and services rendered by them on board said vessel, as seamen, firemen, &c. To the allegations contained in the libel, a denial was filed on the part of the boat.

Assumpsit on a hill of exchange. In this case, St. John, as the surviving partner of St. John & Leavens, instituted an action of assumpsit in the County court of Wilcox county, against Evans.

’ Trespass, assault and battery, &c. — tried by A. Martin, J. This action was brought in the court below, by the defendant in error, against the plaintiff in error, for a trespass. The writ is sued out in the name of A. G. Pruitt, The declaration consists of two counts — one for an assault and battery, and the other for false imprisonment.

Trespass, to try title — tried before Coleman, J. The plaintiff in error brought an action of trespass against the defendant, in the Circuit court of Lauderdale, as well to try title to a tract of land situate in that county, as to recover damages for its occupation.

<p>X. It is not necessary in a declaration in debt on single bill, to aver a delivery of the writing obligatory to the payee; although such delivery is essential to its validity.</p> <p>2. The statute of limitations, must always be pleaded in actions ex contractu, if such a defence is intended to be relied on.</p>

. Scire facias, tried by A. Martin, J. The defendant in error caused a scire facias to be issued frormthe Circuit court of Montgomery, against the. plaintiff, as the bail of John Thomas.

Assumpsit, for goods sold and delivered' — tried before Harris, J. This action of assumpsit, was brought by the plaintiffs, against the defendant, in the- court below, for goods, wares and merchandise. There was a verdict and judgment for the defendant, on the plea of non-assumpsit.

Attachment. — The defendant in error sued out an original attachment, returnable to the Circuit court of Benton, against the estate of the plaintiff, upon affidavit, stating that he was “about to remove his goods and effects out of the State, so that the ordinary process of the law cannot be served upon him,” &c. The attachment being levied and returned, a judgment final, by default, was rendered-at the return term of the court, without any declaration having been previously…

Attachment. — This proceeding was garnishment, sued out by the plaintiff in error, against the defendant in error, in the court below, calling on the defendant to disclose whether he was not indebted to one Joseph B. Rice, against whom the plaintiff had obtained a judgment.

Assumpsit on a note — tried by Hams> J. The defendant in error, as the endorsee of a promissory note, declared against the plaintiff, (as the endorser,) in the Circuit court of Mobile. The case was tried on the general issue.

Assumpsit, for money deposited as a wager — tried by Shortridge, J. The defendant in error brought an action of assump-sit, in the Circuit court of Benton, to recover of the plaintiff the sum of three hundred dollars, the amount of a wager, deposited in his hands as a stakeholder, to be paid over, according as the event of a horse race agreed to be run between the defendant and a third person, might ascertain the one or other to be entitled to it.

Debt on judgment — tried by Chapman, J. In this case, the endorsement on the writ stated the cause of action, to be a judgment for one hundred and fifty dollars and sixty-five cents, recovered on a day mentioned by plaintiff, of defendant, in South Carolina. The declaration contained two counts. The first was.in the usual form of declarations in debt on foreign judgment, and stated the amount of the judgment to be one hundred and fifty-five dollars and sixty-eight cents.

Case against a common carrier, for negligence — tried before Chapman, J, The defendants in error brought an action on the case, against the plaintiffs, in the Circuit court of Tuscaloosa, to recover of them the value of one hjmdred bags of cotton.

Motion to amend judgment, heard by P. Martin, J. This case was formerly before this court, and was reversed and remanded — (7 Porter, —.) A motion was then made in the court below, by the defendant in error, to amend the entry of judgment in the cause; nunc pro tunc, which motion was sustained by the court, and the verdict of the jury amended, and a judgment rendered thereon.

Indictment for concealing a slave, charged with capital offence — tried by Crenshaio, J. The defendant was indicted in the Circuit court of Pike, in two several counts.

Order dissolving an injunction, by P. Martin, J; In this case, plaintiff in error assigned as errofj the dissolution of an injunction previously obtained, to restrain defendants in error from proceeding to enforce the collection of an execution.

Ejectment, tried before Pickens, J. Verdict and judgment for plaintiff. This case was brought up by bill of exceptions, to the charge of the presidmg judge, the insertion of which is here deemed unnecessary, as the material point raised, sufficiently appears in the statement contained in the subjoined opinion.

Assumpsit on a promissory note. , The action was assumpsit, by the defendant in error, as endorsee of a promissory note, against the plaintiff in error, as maker. From an inspection of the record, it appears that the plaintiff below filed a declaration, to which the defendant pleaded “ non-assumpsit,” in short, by consent.

<p>1. Where no judgment appears in the record, the writ of error will be dismissed.</p>

Motion to quash an execution, heard by Pickens, J, Page moved the Circuit court of Mobile county, to quash a writ of execution, which had been issued against him, on the ground, that there was no sufficient judgment to support it.

Assumpsit, before Lane, J. The action in this case, was brought by a physician, for services rendered during the last sickness of defendant’s intestate. Defendant suggested the insolvency of the estate, and moved that the suit abate — which was granted. The order of the court below was assigned for error.

<p>Error to Jackson County court.</p> <p>Debt on bond.</p>

Scire facias, against an administrator. This was a scire facias, to subject the intestate of the plaintiff on a bail bond. The scire facias was admitted to be defective, but it was insisted that the record showed a confession of judgment.

Assumpsit on account, before Coleman, J. The defendants in this court, brought suit against the plaintiff, in assumpsit, and proved by their clerks, all the items of their account,- but a small amount; to prove which, they introduced evidence that one Edward Doe,another of their clerks, who was dead, that the items not proved by the’ other'clerks, were in his hand writing ; that Doe was the only witness by whom these-items could be proved ; that his habit was to charge…

Assumpsit, before Chapman, J. On the ninth day of March, .eighteen hundred and thirty-eight, the defendant in error caused to be issued, by the clérk of the Circuit court of Sumter, a writ of ca-pias ad respondendum against the plaintiffs, in usual form.

<p>1. Plaintiff may discontinue as to partners, on whom a writ issued against a firm, was not served.</p>

De Kalb Circuit court. Assumpsit, before Boothe, J. This , was1 an action of assumpsit, brought oil & pro--missory note by the present plaintiff, against the present defendant. The plea of non-assumpsit was püt in by the defendant, who obtained a verdict and judgment in his favor.

This action is against Shirley, as the drawer of a bill of exchange, drawn on and accepted by daze & Haynes, in favor of Fellows, Read dp Co., and by them endorsed to the plaintiffs in the suit. The declaration is in the usual form, averring presentment for payment, refusal, protest, and notice to the defendant.

Defendants plead the general issue, and failure of consideration. On the trial, plaintiff proved the note, and rested his case, Defendants then gave in evidence a power of attorney, from Skinner to the agent, and a bill of sale from the agent, warranting the soundness of the negro; and that the negro died shortly after the purchase. They also gave evidence conducing to prove that the negro was unsound at the time of sale. Plaintiff asked the court to charge the jury— 1.

Assumpsit, tried by P. Martin, J.. On the ninth of March, eighteen hundred and thirty-eight, the defendants in error brought an action by petition and summons, against the plaintiff, in the Circuit court of Tuscaloosa, on a promissory note, as follows: “Six months after date, I promise to pay Geo. Davis, or order, eighty-four dollars, payable and negotiable in the Bank of the State of Alabama, for value received.— Tuscaloosa, August the 25th, 1836. “ Wm.

Bank motion, tried by Chapman, J. This was a motion in the court below, by the Bank, against Roberts, as the drawer, and the other defendants, as first and second endorsers of a bill of exchange, for two thousand dollars, drawn by Roberts on • Turner & Lewis, and by them accepted.

Attachment, tried by P. Martin, J. The plaintiff in error, by his agent, N. B. Garner, on the eleventh December, eighteen hundred and thirty-seven, caused an attachment to be issued against the defendant, by a justice of the peace of Tuscaloosa, returnable into the Circuit court of that county.

Indictment for trading with a slave, tried before Chapman, J. This was an indictment preferred against the defendant, in the Circuit court of Pickens county, for trading with a slave.

Assumpsit by endorsee against maker. Brooks, as the assignee of Spencer, instituted suit against Carmichael, in the County of Madison, on an order in writing, of the effect following: “ The sheriff of Limestone county, will pay E. H. Spencer the amount of the judgment of mine against J. S. Hendrick, which is two hundred and seventy-nine dollars, which amount I am due said Spencer; and this order shall be your receipt. This 16th January, 1835.

<p>Error to Benton Circuit court.</p> <p>Covenant — tried before Shortridge, J.</p>

Case tried before Harris, J. This action was commenced in the Circuit court of Greene county, and subsequently removed to that of Mobile, in which it was determined by a verdict and judgment in favor of Stewart, the plaintiff, who declared in case against Phares & Herndon, as the owners of the steam-boat Choctaw, for an injury arising from the negligent and unskilful conduct of their servants, while in charge of the said steam-boat, which came in collision with a flat-boat,…

Covenant, tried beforeLanej J. The action in the court below, was covenant, on & sealed writing for the delivery of cotton, made by the plaintiffs in this court, to one Daniel Baliew, on the fifth of January, eighteen hundred and thirty, by which they obliged themselves, twenty days after date, to pay him five thousand pounds of seed cotton, and on failure thereof, two dollars per hundred weight.

Trespass, tried before Shortridge, J. Verdict and judgment for plaintiff. In this case, there had been a recovery of the land in an action of trespass to try titles, previous to the commencement of the present suit. Judgment for plaintiff below was rendered upon a demurrer to the evidence, and the damages assessed by a jury. The plaintiffs here assigned for error— 1.

The suit wag instituted in Talladega county, the seventh of Febrpary, eighteen hundred and thirty-six. The case agreed, on which the judgment of the Circuit court was rendered, discloses the following facts: The land in controversy was reserved to one Athlocke, a Creek Indian, by virtue of the second article of the treaty of the twenty-fourth of March, eighteen hundred and thirty-two, made with the Creek tribe of Indians.

Assumpsit, before Lane, J. Plaintiff’s intestate, being about to take a journey to foreign parts, left a sum of money with defendant, to be distributed among his relatives, in case he never returned. The intestate died on the journey, and the money not being appropriated by defendant, according to the intention of the intestate, this action was brought to recover it.

Assumpsit, tried before Chapman, J. It appears from the record in this case, that the defendants in error, who were plaintiffs below, filed with their “declaration, and sealed thereto a promissory note, of which the following is a copy, to wit: “ $2426 25-100.

Assumpsit. — This action was brought in the court below, by the defendant, against the plaintiffs. The declaration recites, that the plaintiffs in error, and one James Russel, who is not sued, executed the note on which the action is founded. At the return term of the writ, the plaintiffs in error pleaded in abatement, that the note on which the action was founded, was executed by them jointly, with James Russel, who was not sued in the action.

Indictment for murder, tried before A. Martin, J. The prisoner was indicted at the Spring .term of the Circuit court of Barbour county, in the present year, for the murder of one William Herring, and on his arraignment, pleaded not guilty; on his application, the venue was changed to Henry county, in the Circuit court of which, a trial was had at the Spring term, eighteen hundred and thirty-nine, which resulted in the conviction and sentence of the prisoner.

Proceedings on a notice from the the Bank, tried before Pickens, J. Verdict and judgment for plaintiffs below. The errors assigned were— 1. That the certificate of the President of the Bank was not shewn on the record ; 2. That the judgment was not warranted by the evidence ; 3. That the court had no jurisdiction ; and 4. That it was not a proper case for summary motion.

Case on a written agreement, tried before A. Martin, J, Plaintiff below declared against defendant on a written agreement, for refusing to deliver corn, which defendant contracted to deliver, and for which he acknowledged, in the written agreement, he had received payment. To the declaration, there was. a demurrer, which, on the hearing, was overruled by the court. Verdict and judgment for plaintiff.

Petition for habeas corpus. The petitioners, by their counsel, submitted a petition to this court, in which they state, that at the Spring term, eighteen hundred and thirty-nine, of the Circuit court of Tuskaloosa county, they were severally arrested on writs of capias, issued out of that court, founded on an indictment for murder, preferred by the grand jury of that county.

The petitioners presented to the court, a transcript of the record of the Circuit court of Tuskaloosa, being the same which they laid before the court on a previous day, accompanied by a petition addressed to the honorable Peter Martin, judge of the third circuit, and praying a writ of habeus corpus, with a view to their discharge, on bail, from the jail of Tuskaloosa county.

Case for a false warranty. Defendant in error sued plaintiff in the County court of Tuskaloosa county, for the false warranty of a negro man. To the declaration, plaintiff pleaded— 1. The general issue. 2.

<p>1. A judgment will not be reversed for a misdirection by the judge to the jury, if it appear that the party complaining could not have been injured by the error.</p>

Assumpsit, against an endorser. It appeared from the bill of exceptions, that when this suit came on for trial, the writ and declaration could not be found. Their absence was waived by the defendant, who admitted himself properly in .court, and that the declaration was in the usual form, charging him as the endorser of a promissory note.

Trial of the right of property, before Lane, J. This was a proceeding in the Circuit court of Morgan, to try the right of property under the statute, to three slaves. On the trial, the jury found the slaves subject to the execution of the plaintiffs in error, but did not ascertain by their verdict, the value of each, as required by law, or the aggregate value of all.

Assuumpsit, tried before Harris, J, The plaintiff, Blann, declared in the common counts in assumpsit, against the defendant, Chambliss, and to make out a prima fade case of money paid on his account, offered in evidence the exemplification of a judgment obtained by one Hasket, against him, the said Blann.

Attachment. — The error assigned, in this case, was that the court below, on motion, quashed the attachment for a defect in the bond.

- Assumpst, for money had, &c. The' questions involved in this case, arise from exceptions- taken at the trial, in the progress of which,- it ap-^ peared that OWen, the intestate, in the month of February, eighteen hundred and thirty-six,- endorsed a note for' three thousand dollars, for the accommodation of Ash-lock, the plaintiff below, which note was discounted by the Branch of the Bank of the State of Alabama at Mobile, the proceeds being received by the said Ashlock*…

Assumpsit on a written agreement for the sale of land, tried before Coleman, J. Yerdict and judgment for plaintiff belowi The defence set up, was a defect of title in the vendor.

' Motion on a notice from the Bank, tried by Harris, J. There were four cases between the same parties, similar to each other, which were severally brought up on error. Judgment for defendants in error. The error assigned, was the insufficiency of the judgment and record.

<p>Error to Mobile Circuit court.</p> <p>Appeal from a justice of the peace. Judgment for ■plaintiff below.</p>

Assumpsit on note. The defendant in error sued the plaintiffs on a promissory note, by petition and summons- returnable into the County court of Jackson. The process was directed “ to any coroner,” &c. who returned the same with the following endorsements thereon, viz : “ I acknowledge service of the within writ. Feb. 6th, 1838. Henry Norwood.” “Received the same day issued, and executed on John G. Chambers, by handing a copy of the within. Feb. the 6th, 1838. .

Assumpsit on a bill of exchange, drawn and endorsed by B. Leavens, and accepted by defendant below. Verdict and judgment for plaintiff.

Assumpsit on a note, given for the purchase of land, tried before Pickens, J. Defendant below was in possession of the property, but resisted a recovery, on the ground, that the title was in another person, who had obtained the same by preemption, from the United States. The court charged, that there was no such failure of consideration, as would avail the defendant in this action. Verdict and judgment for plaintiff below. The charge of the court was assigned for error.

This is the same case which was before this court at its last term, when the writ of error was dismissed, because the plaintiff in error did not appear to have been a party to the judgment in the County court. After the dismissal of that writ, the plaintiff in error filed his petition in the County court, accompanied by an affidavit of his claim, praying to be admitted as a party to this suit.

Case for the conversion of a slave, tried before Chapman, J. Plaintiff brought his action against defendant to recover a slave, which defendant claimed as administrator of the estate of Samuel Hawkins, deceased. The letters of administration were received in evidence, but objected to by plaintiff, as Hawkins was an Indian of the Creek tribe, Yerdict and judgment for defendant. The error assigned, was the admission of the letters testamentary in evidence.

- Assumpsit on note. In this casej the declaration alleged a two-fold endorsement of the note, and a blank was left for the name of one of the endorsers,- but when the note was produced? all the endorsements were erased except one, and defendant objected to the note, as evidence to support the declaration. Objections Were also made to the’ bill of exceptions, which was signed after the adjournment of the court.

Assumpsit on note, tried before Harris, J. This was an action of assumpsit, brought by the plaintiff in error against the defendants, as makers of a promissory note, negotiable and payable at the Rank of Mobile. The note sued on, purports to have been made by the defendants, as partners, to E. Stevenson, or order, and by him endorsed to the plaintiff. The defendants pleaded— 1. The general issue; 2.

Assumpsit on note. Von Pheel & McGill brought an action on a note drawn by Connally & Anderson, payable to Wellman, or order, and by Wellman assigned to plaintiffs, to which defendants plead as an off-set, an open account, owing to them by Wellman & Dear, partners, &c. due before notice of the assignment of the note. To this plea, plainiffs demurred, but their demurrer was overruled by the Circuit court, and judgment rendered for defendants.

Assumpsit on note. Gorman & Chapman instituted this action for the use of McKeogg against Trann, who is sought to be charged as one of the firm of Trann, Lewis & Co. He relied, in the court below, on the plea of set-off, and offered in evidence a debt due to him individually^ from the nominal plaintiffs, owing at, and previous to the time when the note sued on Was assigned to the actual plaintiff.

<p>Error to Wilcox Circuit court.</p> <p>Assumpsit on note.</p>

Case for the breach of a parol contract, tried before &'hortridge, J. The jury assessed plaintiff’s damages at thirty dollars, whereupon the court non-suited plaintiff, because the recovery was less than the court could take cognizance of —which was assigned for error.

Assumpsit. — This is an action of assumpsit, by which the defendants in error sought to recover of the plaintiff in error, the amount of the bill of exchange described in the declaration. The bank claims title to the bill, through the endorsement of an individual of the same name with the plaintiff in error, who is sued as the acceptor, and his personal identity with the last endorser, was established by evidence produced at the trial.

Assumpsit on note, tried before Taylor, J. The plaintiff in error, as the assignee of Stow, Ellis Co., declared against the defendant, on a promissory note of the following tenor: “ $1361 47-100. Mobile, April 4th, 1827. “Sixty days after date, we promise to pay to the order of Messrs. Stow, Ellis & Co., one thousand three hundred and sixty-four 47-100 dollars, payable and negotiable at the Bank of Mobile. “Biles & Fay.” The defendant pleaded— 1. Non-assumpsit; ,2. Payment.

Proceedings on a notice from the bank. Judgment for plaintiff below. There were three several cases between the same parties, brought up by writs of error, to which the subjoined opinion is applicable. The errors assigned were— 1. That the evidence of the note set forth in the record, is not such as gave the court jurisdiction of the motion; 2. That the bank had no right to sue in a summary manner, upon the note described in the record; 3.

Detinue — tried before Chapman, J» Brown mortgaged a negro to one Pistole, in eighteen hundred and twenty-nine, for five hundred dollars, to be paid ,in three years. The money was not paid, and in eighteen hundred and thirty-two, Pistole assigned the mortgage to one Calpe.

Notice to the sheriff. This was- a proceeding in the Circuit court of Dallas,against the plaintiff in error, as the sheriff of that coun-ty, under the statute, for failing to make the money on a writ of fieri facias theretofore placed in his hands, at the suit of the defendant in error, against John G. Abrams and another, which it was suggested might have been made,by the employment of due dilige ice. An issue was made up and submitted to the jury.

Notice to the sheriff. This was a motion against the sheriff and his sureties. The defendant in this court, (plaintiff below,) suggested that the money could have been made on the execution, by due diligence.

This was an indictment for selling spirituous liquor i to a slave, without the permission of the owner. A motion.was made .to quash the indictment in the court below, because, 1. The indictment does not show that the grand jury who found the bill were then and there empanneled, charged and sworn, thereby omitting a venire to the jury; 2. That the indictment does not contain the names of the grand jurors.

Trespass to try title, tried before Booth, J. Defendant in error brought her action of trespass, to Irecover a half section of land, which she claimed as her reservation, under the treaty with the Creek tribe of Indians, of the 24th March, 1832. Defendant demurred to the declaration, and also plead the general issue. Defendant exhibited in evidence, a patent from the United States, for the land in question. Verdict and judgment for the plaintiff below.

Debt, on a written contract to pay money, in consideration of the sale of land, by the defendant to the plaintiff-tried before Shortridge, J. In this case; judgment was rendered for the plaintiff in error, for a larger sum than was due on the contract.

Error' to Limestone Circuit court, exercising chancery jurisdiction.- Bill for partition, tried before Lane, X The decree below ordered a sale and division, and the' error here assigned was, that the bill was not dismissed.-

Motion to set aside a levy. The sheriff of Talladega county, levied an execution in favor of the defendants in error, on property in that county, which was claimed by a third person, and surrendered to him.

Proceedings against a constable. This was a proceeding commenced before a justice of the Peace of Pike.

Assumpsit — before Shorfridge, J. The action in the court below, was brought by the defendant in error, against the plaintiffs, on two notes, of thirty dollars each.

Assumpsit — tried- before Chapman.) J. Judgment for defendants below. The error assigned was, that there was no declaration filed by plaintiff below,

• Error to Mobile Circuit court, exercising chancery ju~-risdiction. Bill to foreclose a mortgage. The defendants in error filed their bill in equity, in the Circuit court of Mobile county, to foreclose the equity of redemption of the plaintiffs, to certain real estate conveyed to the defendants, by way of mortgage.

Covenant — before P. Martin, J. The facts of this case, so far as it is considered necessary to state them, are, that the action was commenced in the court below, by the present defendant, against the plaintiff, and the writ returned, executed.

Slander — tried before Lane, J. The declaration charged, that defendant had said of plaintiff, “ he has got well off very fast,” (meaning an increase of plaintiff’s pecuniary means,) “ and the way to tell it is, he” (meaning plaintiff,) “has marked Hugh Morrow’s hogs,” (meaning that said plaintiff had marked said hogs with his own mark, and had feloniously converted them to his own use.) Defendant demurred to the declaration, and the court below sustained the demurrer —…

On the thirteenth of February, eighteen hundred and twenty-seven, the plaintiffs in error exhibited their bill on the equity side of the Circuit court of Mobile county, against the defendants, asserting title on behalf of the ■church, to several lots in the city of Mobile.

<p>1. The proceeds of the sale of property, conveyed by deed of trust, must be applied as provided for in the deed.</p> <p>2. Therefore, where property was conveyed by deed of trust, to secure the payment of notes falling due at three, six, nine and twelve months, as they severally fell due, the property being insufficient to pay all the notes, those first falling due, were entitled to a • preference; and this right attached to them in the hands of an assignee.</p>

Assumpsit on a promissory note. Verdict and judgment for plaintiff below.

Assumpsit. — The defendant in error, by his guardian, brought an action of assumpsit against the plaintiffs, in the Circuit court of Montgomery.

Trespass, to try title — tried before Chapman, J. The questions in this case,' arose upon a deed of assignment. On the trial below, the plaintiffs, to shew title to the lots sued for, produced and read to the jury, two judgments obtained in their favor, at the Spring term of said court, in eighteen hundred and thirty-two, against J. H. & A. H. Summerville.

Trespass to try title — before Pickens, J. The plaintiffs in error brought an action of trespass, against the defendant, in the Circuit court of Mobile, to try the title to, and recover the possession of, a certain lot or tract of land, situate in the city of Mobile.

Detinue — tried before Chapman, J. The plaintiffs in error brought an action of detinue, in the Circuit court of Marengo, for the recovery of two female slaves of the defendant.

Libel for wages — tried before Harris, J. In this case, the steam-boat Fox was libelled in admiralty, by defendant in error, and before the trial, a fi.fa> was levied on the boat, and on a sale under the fi. fa. Reed became the purchaser. On the trial of the case made by the libel, Reed interposed his claim, which was overruled by the court, and a judgment of condemnation rendered in favor of the libellant. The judgment below was now sought to be reversed by writ of error.

Assumpsit — before Pickett, J. The defendant in error declared against the plaintiff in. assumpsit, for goods, wares and merchandise, sold and delivered — work and labor done — money lent and advanced — money paid, laid out and expended, and mohey had and received, &c. To which the plaintiff in error pleaded a plea, amounting substantially to non-assumpsit; also the pleas of payment and set-off.

Assumpsit, against the endorser of a bill of exchange —tried before iShortridge, J. The plaintiff in error was sued in the Circuit court of Talladega, as the first endorser of a bill of exchange, payable at the branch of the State Bank at Montgomery. Presentment and non-payment were duly alleged, but the declaration, did not negative the payment of the bill, by the drawer or subsequent endorser, in its breach.

This was a trial of right of property, before a justice of the peace, in which the defendants in this court were claimants. A verdict and judgment being rendered against them, they applied for, and obtained from the judge of the County court of Wilcox, a writ of certiorari, removing the cause into the County court for another trial, and a judgment was there rendered in their favor. From this judgment, a writ of error is prosecuted to this court.

Indictment for trading with a slave, Without consent — -■ tried before Pickens, J. In this case, defendant was convicted on an- indictment! for trading with a slave, without the consent of the mas'-ter or' owner. On the trial, the State failed to prove that the slave had not the leave or consent of the master or’ owner.

Bill and answers heard before Chancellor Peck. The plaintiff filed his bill on the equity side of the Circuit court of Madison, which, upon the establishment qf the separate courts of Chancery, was transferred to the Chancery court holden at Huntsville, In the bill, it is stated that Henry Chambers, late of-the county Limestone, Alabama, departed this lifje-, in the year of our Lord one thousand eight hundred and twenty-five, having first made and published his last will and…

Detinue for slaves — tried before Lane, J. John McCutchen, of Jackson county, in his life time, executed a deed of conveyance of sundry negro slaves, to his grandson, William W. McCutchen, then in the State of Mississippi, and delivered the same to John H. Gray, to be handed to W. W. McCutchen.

In this case, it appears that Mrs. Thompson, who was the wife and executrix of Mills Ely, Intermarried with her present husband, who became an executor in, her right.

Debt on judgment — before Shortridge, J. This action was instituted in the court below, by the plaintiff in this court, on the exemplification of the record of a judgment, obtained by the plaintiff against the defendant; in the County court of Franklin, State of Tennessee, in the year eighteen hundred and twenty. The- defendant pleaded, 1. Nul tiel record; and 2. The statute of limitations of six years. Issue was taken on the first plea, and a demurrer filed to the second.

Bill of complaint — heard by Shortridge, J. The bill in this case, stated that Cottingham sold Pitts two hundred acres of land, and represented it as lying within a mile of one Holley’s residence, being worth ten dollars an acre, &c. Pitts gave his notes for the purchase money, at that price, and Cottingham executed a bond for title.

Rule upon the sheriff, &c, The plaintiffs in error moved the County court of Mobile upon affidavits filed, for a rule to be addressed to the defendants, requiring them to show cause why the sale made by Magee, as sheriff, to Moore, under an execution issued from that court, at the suit of Edward Harding, against the plaintiffs in error, should not be set aside, and the conveyance (if any) to the purchaser, delivered up and cancelled.

Bill of complaint heard before' Crenshaw, Chancellor' of the Southern Division. The original bill in this case, was filed by Adana Tay-3 lor, sole heir' at law, and distributee of James Taylor,-his deceased brother, and certain persons, his creditors, to» whom he had assigned his claim on the estate of his brother, against Wood1, the administrator. To this- bill# there was a demurrer filed.

<p>Error to Baldwin Circuit court.</p> <p>Ejectment — before Pickens, J.</p> <p>This was an action of ejectment, brought by the plaintiffs against the defendant, to recover a lot of ground in the city of Mobile.</p> <p>The plaintiffs, in order to make out their title, offered in evidence a Spanish grant, dated twelfth October, eighteen hundred and nine, made to William Pollard, the ancestor of the plaintiffs, by Cayetano Perez, of which the following is a translation:</p> <p>“Mr. Commandant — William Pollard, an inhabitant of this District, before you with all respect represents, that ás he has a mill 'established on his plantation, and often homes to this place with planks and property from it,— he wishes to have a place propitious of suitable for the landing and safety thereof, and having found a vacant piece at the river side, between the channel, (which is called John Forbes & Co.) and the wharf at this place, he petitions to grant him said lot on the river bank, to give more facility to his trading, — a favor he hopes to obtain of you. — Mobile, 11th Dec’r, 1809.</p> <p>Wm. Poll-ard.</p> <p>“Mobile, 12of Dec. 1809. — I grant the petitioner the lot or piece of ground he prays for, on the river bank? provided it be vacant. Gaveta»o Perez.”</p> <p>The grant was shown to have been reported against by the commissioners appointed by the United States. The plaintiffs also proved, that in eighteen hundred and thirteen, or eighteen hundred and fourteen, the hands of William Pollard removed some wreck and drift-wood from the place where the premises in question now are.</p> <p>The defendants gave in evidence, a Spanish grant to John Forbes & Co., dated ninth June, eighteen hundred and two, for a lot of ground eighty feet front on Royal street, with a depth of three hundred and four east, and bounded on the south, by Government street; which grant was recognised as a perfect title, and is confirmed by an act of Congress. This lot, as appears from a diagram which accompanies the record, extended to what is now Water street, and is due west, and immediately in front of the lot sued for in this action, which was separated from it by Water street.</p> <p>It was also in proof, that previous to eighteen hundred and nineteen, and until eighteen hundred and twenty-three, the lot now sued for, was at ord.nary high tide? covered with water, and nearly so, at all stages of the water. That the ordinary high water flowed from the east,to about the middle of what is now Water street, between the lot claimed by the plaintiffs, and the grant to John Forbes & Co. It was proved, that Forbes & Co. had been in possession of their lot, since eighteen hundred and two, and that it was known as a water lot, under the Spanish government.</p> <p>In the year eighteen hundred and twenty-three, no one being then in possession, and the same being under water, one Curtis Lewis took possession of, and filled up east of Water street, and from it eighty feet east, and thirty-six or forty feet wide, filling up north of Government street, at the corner of the same and water street. That Lewis remained in possession about nine months, When he was ousted in the night by Forbes & Co., who caused to be erected a smith’s shop thereon, and from whom Lewis soon afterwards recovered possession by legal process, and retained it until he conveyed the same. It was also in proof, that at the time Lewis took possession, Water street could be passed by carts, and was common. The defendant connected himself through conveyances for the premises in controversy, with the said grant to John Forbes & Co., with the said Curtis Lewis, and with the mayor and aldermen of the city of Mobile.</p> <p>It was admitted, that the premises were between Church street, and North Boundary street.</p> <p>The plaintiff gave in evidence, an act of Congress passed on the twenty-sixth May, eighteen hundred and twenty-four, entitled “an act granting certain lots of ground to the corporation of the city of Mobile, and to certain individuals of said city.”</p> <p>Also, an act of Congress passed second July, eighteen hundred and thirty-six, entitled “ an act for the relief of William Pollard’s heirs, upon which a patent had issued, which was in evidence.</p> <p>On this evidence, the court charged the jury, that if the lot conveyed as above to John Forbes & Co., by the deed' aforesaid, was known as a water lot under the Spanish government, and if the lot claimed by the plaintiffs had been improved at, and previous to the twenty-sixth May, eighteen hnndred and twenty-four, and was east of Water street, and immediately in front of the lot so conveyed to John Forbes & Co., then the lot claimed, passed by the act of Congress of May, eighteen hundred and twenty-four, to those at that time owning and occupying the lot, so as above conveyed to John Forbes & Co.</p> <p>The court further charged the jury, it was immaterial who made the improvement on the lot on the east side of Water street, being the one in dispute; that by the said act of Congress, the proprietor of the lot on the west side of Water street, known as above, was entitled to the lot on the east side of it. To which charges of the court, the plaintiff excepted.</p> <p>The charges thus given, are now assigned for error.</p>