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Full text of "A digest of the Alabama reports"

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13 



4 



A 

KFA 
1^3 . 1 



AUBURN UNIVERSITY 
LIBRARIES 




Digitized by the Internet Archive 

in 2010 with funding from 

Lyrasis IVIembers and Sloan Foundation 



http://www.archive.org/de4aiJ6Zdi9e5tofalabamar01reav 



DIGEST ' 



OF THE 



ALABAMA REPORTS 



BY 

T. REAVIS 

n 



VOLUME I 



PRINTED BY M. D. J. SLADE. 



1860. 



AOBORH awvERSnT LmmRKS 
MWm^ MAttUU 36830 



Ff 



TO 

THIS DIGEST 

IS 

RESPECTFULLY DEDICATED, 
AS A TOKEN OF THE COMPILER'S ADMIRATION, 

FOR 

HIS ABILITY AS A LAWYER, 
HIS EXCELLENCE AS A CITIZEN, 

AXD 

Ills FAITHFULNESS AS A FRIEND. 



^ 






AUBURN UNIVERSITY 

RALPH BROWN DRAUGHON LIBRARY 

AUBURN UNIVERSITY, ALABAMA 3684?--, 



PREFACE. 



This work was undertaken at the request of several em- 
inent legal friends, whose good opinion of my qualifications 
for the task, will not, I fear, ]3e justified by the manner of 
its performance; for although I have labored faithfully, to 
make it systematic, accurate, and convenient, I find, that the 
volume nf)w completed, is very far from being free from faults 
and defects : All I think it proper to say in extenuation of 
these imperfections, and of the delay which has occurred in ' 
the completion of the work, is, that they have been occa- 
sioned by the continual interruptions of its preparation, 
which the claims of professional, and other imperative en- 
gagements, have made upon iny time ; and by the difficulty 
of executing its plan. In the next volume, which will appear 
^vith as little delay as possible, I shall endeavor to avoid the 
faults, and to supply the defects of this. It will be perceived, 
that this volume contains a complete Alphabetical Table of 
all the Cases in the Reports, from Minor, to the sixteenth 
volume of the New Series, inclusive; and a Table of the 
Cases which are Overruled, in Conflict, or Changed by Statute ; 
and, that in the arrangement" of the matter, I have remodeled 
such of the head notes as require correction; noted the de- 
cisions which are overruled, in conflict, or changed by legis- 
lative enactment; placed the cases bearing upon the. same 
point, in connection with each other; and made each Title, 
ajid Subdivision, as complete in itself, as practicable. With 
these explanations, I submit the woik to the indulgent judg- 
ment of the profession, for whose convenience I have done 
the best I could, under the circumstances. 

T. RP]AVTS. 
December, 1850. 



TABLE OF TITLES AND DIVISIONS, 



A 

ABATEMENT, 1 

1. What unll abate a Writ, or other Process, 1 

( a) Defects in the writ, or service, or want of jurisdiction, 1 

ih) Residence and Freehold in another county, 2 
c ) Death of parties ; and herein of permitting others to come 

in and defend, or prosecute, 2 

(d) Coverture, 4 

ie) Misnomer, Misjoinder, and Non-joinder of Parties, 4 

(/) Variance between writ and declaration, 4 

(f/i Pendency of another action, 5 

( h ) Cause of action not accrued, 6 

(i) Insolvency of Estate, by Executors, and Administrators, 6 

2. How to take advantage of matters of Abatement, 7 

(«) By plea in abatement, 7 

(6) By plea, either in abatement or bar, 8 

(c) By Motion; and herein of motions to quash, 9 

3. ■ WJien, and by whom the objection must be taken, and tohat will be a 

vxiiverofit, 10 

{a) When pleas in abatement must be filed, 10 

(6) Who may plead in abatement, or move to quash, 10 

(c) What will be a waiver of matters in abatement, 11 

4. Form and requisites of Flea, and judgment thereon, 11 

(a) Form and requisites of plea, 11 

(6) Jud;^ment thereon, 12 

5. Fleas in Abatement in Criminal Cases, 13 

ACCESSORY. Sec Crimi7ial Lato, 387 

ACCORD AND SATISFACTION, 14 

ACCOUNTS, 14 

1. Of Open and Book Accounts, and Accounts Steited, 14 

[a] Open and Book Accounts ; and herein of the proof of them 

by the parties, and otherwise, 14 

(6) Of Accounts Stated, 18 

Ic) Of Splitting Accounts, 18 

[d) Interest on Accounts, 18 

2. Accounts in Chanccru, 19; see Chancery 237 

ACTIONS, !•) 

1. 7|v. o,nd against 2vhom, and for what an Action will lie, l',» 

2. Where no action icill lie; andhercin of "Damnum Absque Injuria," 27 

3. Election of Actions ; and herein when an Action shoidd be in a dif- 

ferent form from that adopted, < 32 

•J. Ac/inn mcrgid in a Floni/, 32 

5 . <)/ Consolidating Actions, 33 , 

0. What Actions do, or d/j not sureice, 33 



viii TABLE OF TITLES AND DIVISIONS. 

7. How representatives of deceased plaintiffs and defendants are made 

parties, 34 

8. Dividing, or Splitting causes of Action, 35 

9. Of Qui Tarn Actions, 35 

10. Commencement of Actions, 36 

11. Action on the Case, 36 

ADMIRALTY, 36 

1. Junsdiction, 37 

2. Of the Bond or Stiptdaiion, Decree thereon, and Eights of the Stipu- 

lator's, 37 

3. Liens, ' 38 

4. Practice, 38 

ia) Libel, 38 

( h ) Answer and Claim, 39 

(c) Monition, 39 

' {d) Seizure and Custody, 40 

(e) Trial, 40 

(/) Decree, 40 

{g) Appeal and Writ of Error 40 

ADULTERY. See Criminal Law, 387 ; Divorce and Alimony, 455 

AD QUOD DAMNUM. See Mills. 

ADVANCEMENT, 41 

ADVERSE POSSESSION. See Ejectment ; Limitations; Sale; Vendor and 
JlutcTlclsct. 

AFFRAY. See Criminal Law, 387 

AGENCY, 42 

1. Appointmeiit and Revocation; and herein of the proof of Agency, and 

of Powers of Attorney, 42 

2. Extent of Aidhority, 43 

(«) Construction of Powers, 43 

(6) Power to delegate authority, 46 

3. Ratification and Acquiescence, 46 

4. Time and Manner of execiding Agencies, 47 

5. Liabilities of Principals, and how far hound by acts of Agents, 48 

ia) Liabilities in General, 48 

(6) How aifected by admissions of Agent, 49 

6. Liabilities of Agents, 50 

[a] To their Principals, 50 

(6) To third Persons, 52 

7. Competency of Princip)al and Agent, as loitnesses, 52 

8. Rights and Remedies of Agents, 53 

(a) Compensation and Lieu, 53 

[h] When Agent may sue in his own name ; and herein of other 

Rights, 54 

AGREEMENT. See Contract, 334 

ALIENS, 54 

ALIMONY, 457 

ALLEGIANCE. See Conflict of Laics, p. 327, sec. 41. 

ALLUVION. See Rivers, and Riparian Rights. 

ALTERATION OF INSTRUMENTS. See Bills of Exchange, 173; I>eefZ,....428 

AMENDMENT, 55 

1. General Rules, 55 

2. Of Writs and other Process, 56 

3. Of Declarations, 56 

4. Of Pleas, 57 

5. Of Records and Judgments, 57 

6. Of Ofiicers' Returns, 62 

7. Effect of Amendment, 63 

8. Amendments in Chancery. See Chancery, 239 



TABLE OF TITLES AND DIVISIONS. ix 

ANCIENT LIGHTS, 64 

APPEAL AND CERTIORAPJ, ".'.■""■ 64 

1. Appeals, 64 

(a) In what cases an Appeal lies, 64 

(6) Of the Appeal Bond, 64 

(c) Proceedings on Appeals, 66 

2. Ceiiiorari. 69 

{a) When granted by the Supreme Court, 69 

(6) When the proper remedy, 70 

(c) To Justices of the Peace, and proceedings thereon, 71 

(fZ) Yfhen returnable to the Circuit Court, 72 

APPEARANCE. See Practice, ''Appearance;" Clmncertr, 301 

APPLICATION OF PAYMENTS. See Payment 

ARBITRATION, 73 

1 . Of tlte Submission, 73 

2. Of the Award, 73 

{a) Validity, and Construction of Awards, 73 

(b) Effect of Awards; and herein of judgments upon them, 74 

(c) OfPleadinc;, Enforcing, and Avoiding Awards, 75 

ARRAIGNMENT. See Criminal Laio, 402 

ARREST. See Privilege. 

ARSON. See Criminal Laic, 388 

ASSAULT AND BATTERY. See Trespass; Criminal Laic, 388 

ASSESSMENT OF TAXES. See Taxes. 

ASSIGNMENT 76 

1 . Deeds of Assignment for the benefit of Creditors, 76 

ia) General Principles, 76 

\b) When Valid, and what will pass by them, 77 

(c) V/hen Void, 79 

( cl) Distinction between Assignments and Deeds of Trust, 80 

2. Assignments of Glioses in Action, 80 

[a) What may be assigned, and Who may assign, 80 

(6) Rights and Disabilities of Assignee 81 

ASSUMPSIT, 83 

1 . Ofilie Action in General, and Ji ere in ofica iving torts, 83 

2. To recover money paid,...: 88 

3. For money liad and received, 88 

4. For goods sold and delivered, 91 

5. On account stated, 91 

6. Of quantum valebant, and rptanium meruit , 92 

7. Pleadinqs and Evidence, 93 

ATTACHMENT, 96 

1. WJio may sue out an attachment, and fur what demands, 96 

2. Of the Affidavit for an Attachment, 97 

3. Of the Attachment Bond, 98 

4. How the JVrit should be directed, a7id to tchat Court returnable, 99 

5. What property may be attached ; and, herein of the officer's return, 

and of the Lien of Attachments, 99 

{a) What may be attached, 99 

(6) Levy and return, 100 

( c) Lien of Attachments, 101 

6. Who may replevy; and, herein of the Replevin Bond, 101 

7. Irregularities in Attachment Causes, and how taken advaiitage of, 

v:aived, or remedied, 102i. 

8. Of tJie Judgment and Pxecuiion; and herein of the sale of pervihabh' 

■property before judgment, 104 

9. Of A nrillary Attachments 105 

10. Judicial Attachments, 106 

11. Attachments for Rent, 10^- 

1— A 



i TABLE OF TITLES AND DIA^ISIONS. 

12. Liabilities for suing out AUaclimcuts wron-gfullij, 1 07 

13. Proceedings against Garnishees, 1()1> 

(a) Nature of the proceeding; Avhen a garnishment may bo is- 
sued, against whom, and of the affidavit and officer's return, 109 
(5) Of the answer, issue, and proceedings thereon, Ill 

(c) When judgment may be rendered on the answer or not; 

and wiiat property may bo sul)jected in this proceeding,.. .114 

( d) Proceedings when Garnishee has been notified of a transfer ; 

and of the contest with the assignee, 117 

(e) What defenses Garnishee may make, and what irregulari- 

ties he may take advantage of, 110 

{f) Of the Judgment nisi, liability for costs, and allowance to 

Garnishee, 12() 

(r/) Effect of Judgment against Garnishee, and pavment thereof,... 121 
ATTORNEY, '. .'.... 122 

1. Who may practice as an Attorney, and oftheoatlis reqiiired, 122 

2. Authority of an Attorney, and xchen it may be called in question, 122 

3. Duty and liability of cm Attorney, 124 

4. Compensation, fees, and lien of an Jdtorney, '. 12G 

5. Misconduct of an Attorney, and how far his Client is affected thereby, 

or tvill be protected 'in his dealings with his Attorney, 127 

C. When service of notice, and other papers, may be made on an Attorney, 127 
7 Privileged communications; statements and agreements in reference to 

a cause ; and ivJien cm Attorney may be a witness for his Client,.. A2~ 

8. Pleadings and Evidence in a.ctions against Attorneys, 128 

AVERAGE. See Skipping. 



BAIL, 129 

1. Of the Affidavit for Bail, and of the Bail Bond, 129 

2. Of Prison Boim'ds Bonds, 129 

0. When the Sheriff is liable as Special Bail, 131 

4. Of the Rights of Bail, and Proceedings against them, 131 

5. Bail and Recognizance in Criminal Cases, 133 

BAILMENT, , 13G 

1 . Of Bailments generally, 136 

( a) What constitutes a Bailment, 13G 

{b\ Rights of Bailee, 136 

( c ) Liabilities of Bailee, 136 

2. Common Carriers, 138 

3 . Pleadings cmd Evidence, 140 

BANKRUPTCY, 141 

1. Effect of decree in bankruptcy, 141 

(a) What debts are discharged, or not; and herein of the rights 

of bankrupts, 141 

(6) Effect upon judgments, executions and liens, 141 

(c) Effect upon suits instituted by, or against the bankrupt, 142 

( d) Rights of the assignee, after decree ; and herein of assign- 

ments by the bankrupt, 143 

2. Of pleading the discharge, cmd what tvill avoid it; cmd herein of 

promises by bankrupts topay a discharged debt, 143 

3. Competency of bankrupt, as a ivitness, 145 

BANKS, :. 145, 

1. Of the right of Bcmhing, 145' 

2. Of the charter, corporate authority, cmd rights of Bcmks, 146 

3. Aciions and smnmciry p)roceedings by, cm.d against Banks, .148 

( a) Summary pi'oceedings by motion, in favor of Ranks, 148 



TABLE UF TITLES AND DIVISIONS. xi 

{b) Other actions by Banks , 153 

(c) Proceedings by motion against Banks, 154 

4. Of Bank Interest, T 154 

5. Liabilities of Banks in general, 155 

G. Authoriin and liahilitij of bank officers, 150 

7. Of Bank Notes, ' 157 

BASTARD, 158 

BATTERY. See Criminal Law, 388 

BEQUEST. -See Devise and Leqacy, 448 

BILL OF DISCOVERY. See Chanceni, 240 

BILL OF LADING. See Shipping. 

BILL OF EXCEPTIONS, 159 

BILLS OF EXCHANGE, AND PROMISSORY NOTES, 103 

1. Form, Requisites, Constrxiction, and Consideration, 103 

2. Notes payable in specific articles, 100 

3. Negotiahilitij, ccnd Transfer; and herein of notes payable to bearer, 107 

4. -Of the Lex Loci, and Lex Fori, in reference to Bills, Notes, and In- 

dorsements, 108 

5. When, and in lohose name, an action on a Bill or Note may be main- 

tained, 109 

(a) Who may maintain an action, and when; and herein of fill- 

ing up blank indorsements, 169 

"(6) When no action can be maintained, 171 

0. Remedies on lost Bills and Notes, 172 

7. Fff'ect of canceling, or altej'ing a Bill or Note 173 

8. Acceptance of Bills, and Rights and Liahilities of the Drawee, 173 

9. Protest, Demand and Notice, and Days of Grace, 174 

{a) Protest and N'otice, and Days of Grace, 174 

[b) Demand and Notice, 179 

10. Of Commercial Paper, 180 

(«) Rights of the Holder, and liabilities of the Makers and In- 

dorsers 180 

[b) Notes signed, or indorsed in blank, 182 

(c) Equities T^hich maybe set up against the holder, 183 

11. Damages and Interest, 184 

12. Rights and Rcmedirs of Accommodation Indorsers, between themselves,. . .1%^^ 

13. Rights and Drdies afthe holder of collateral paper; and herein of 

taking Notes in payment, 180 

14. Rights of\he Holder, and liabilities of the makers, indorsers, guar- 

antors and assignors of Paper not commercial, 188 

15. Rights of Holders, to securities for the debts assigned, 193 

16. Various 'Defenses to actions on Bills, Notes and Indorseinents, 194 

17. Plead inqs. Evidence and Judgm.cnt 200 

[a) Of the Pleadings, 200 

[b) Variance between the declaration, and writing declared on, 204 

[c) Competency of Parties to Bills and Notes, as witnesses, 205 

[d) Parol Evidence to explain, or vary the cflcct of Bills, Notes, 

and Indorsements, 200 

[e) Of the Evidence generally, 209 

(/) Judgment, 2U 

BOND, 21^ 

1. Execution, Delivery, Validity, and Consiniction of Bonds, 21.'. 

2. Oftlcial Bond.^....! 215 

■ (a) Sheriffs' Bonds, 2li) 

(6) Constables' Bonds, 218 

(r) Clerks' and Registers' 219 

3. Forthroming Bonds, - ' •' 

4. Bond for Convri/aiire of Real Estate, 221 

5. Writ of Error fionds,..'. 220 



xii TABLE OF TITLES AND DIVISIONS. 

6. Bonds of Indemnity, 227 

7. Injunction Bonds 228 

8. Assignment of Bonds, and Rights and Liabilities of the Parties, 229 

9. Bemedy on Bonds, and of the proper parties to suits thereon, 229 

10. Pleadings, Evidence, and Defense in suits on Bonds, 229 

BOUNDARIES, 234 

BRIDGES. See Roads and Bridges. 

c • 

CASE, ACTION ON THE. SeeAction, 36 

CERTIORARI. See Appeals and Certiorari, 69 

CHALLENGE. See Criminal Laiv, ''Jury," 403 ; ''Dueling," 389 

CHAMPERTY. 235. See Contract, 339 

CHANCERY, 236 

1. Accide7it, 237 

2. Account, 237 

3. Amendment 239 

(a) Of Bills, 239 

(6) Of Answers, 240 

(c) Of Decrees, 240 

4. Ansiver,... 240 

[a) When svif&cient; and herein of Esceptions for insufficiency,.... 240 
(6) Effect of answer as Evidence, 241 

(c) When Evidence or not, for, or against co-defendants, 244 

[d) What decree may be prayed by an answer, • 244 

5. BUls 244 

(a) Form, Requisites, and Sufficiency in general, 244 

(6) Bill of Discovery 246 

c) Bill of Interpleader 246 

d) Bill of Peace, .• 247 

e) Bill Quia Timet, 247 

(/) Bill of Review, 248 

{g) Bill of Revivor, 250 

(h) Supplemental Bill, 250 

[i] Creditors' Bill; and what may be subjected by it, 251 

[j) Cross Bill, 254 

6. Contempts, 255 

7. Contribution, 256 

8. Costs, 256 

9. Decree, 257 

{a) Generally, and herein of the allegations and proof in a cause, 257 
h) Effect of a Decree, 265 

( c) Decree pro confesso, 266 

(d) Against non-residents; and herein of Publication, 267 

(e) Decree of Refei-ence; Proceedings before the Master, and 
Master's Report, 268 

10. Demurrer, ■ ^ 270 

11. Dismissal, 271 

{a) Generally 271 

(&) For want of Equity 271 

( c) Without Prejudice, 272 

{d) For want of jurisdiction, 272 

12. Distribution of Estates of deceased persons, 272 

13. Divorce. See that Title, .• 455 

14. Dower. See that Title, 458 

15. Election, 274 

16. Evidence, 274 



!: 



TABLE OF TITLES AND DIVISIONS. * xiii 

(a) Generally, and herein of proving documents at the hearing, 274 

( b ) Depositions, 276 

( c ) Impeachment of Witnesses, 276 

[d] Examination of co-defendants, 277 

17. Exhibits, 277 

18. Fraud, 277 

19. Gaming Contracts, 279 

20. Infants, 280 

[ a) When necessary, and how made Parties, 280 

[b) Of Guardians ad litem, and Decrees against Infants, 280 

[c) Sale of Infants' Realty, 281 

21. Injunction, 281 

( a) Generally; and herein of Motions to Dissolve, 281 

( b ) Against Judgments, and Proceedings at Law, 283 

( c ) Injunction Bond, 290 

[d) Release of Errors, 290 

22. Issue to be tried at Law, 291 

23. Jurisdiction in general, and Principles of Courts of Equity, 291 

24. Lost Instrimients, 292 

25. Mistake and Ignorance, 293 

26. Mortgage. See that Title. 

27. Midtifariousness 294 

28. Ne Exeat, 296 

29. Parties, _. 296 

( a) Who may, or must be joined as complainants, and effect of 

misjoinder, and non-joinder, 296 

(6) Who may, or must be joined as defendants, and effect of mis- 
joinder, or non-joinder, 298 

30. Partition. See that Title. 

31. Penalty, See that Title. 

32. Practice, generally, ,....• 300 

( a) Subpoena, 300: 

( b ) Appearance, 301 

( c ) Time of opening Court, 301 

( d) Continuartce, 301 

( e ) Substitution of papers, 301 

(/) Transferred Causes, 301 

( g) Hearing, 301 

33. Receiver, 301 

24. Re-formation of Contracts, 302- 

35. Rehearing, 302 

36. Rescission of Contracts, 302. 

37. Sales under Decrees; ivhen the biddings will be opened, and of the 

rights of Puixhasers, 306 

38. Set-off, 308 

39. Specific Chattels; Jurisdiction to compel delivery of, 309 

40. Specific Performa'hce of Contracts, . » 309 

( a) Generally 309 

( 6 ) In relation to Lands, ;....... 310 

41. Stale Demands ; and herein of the Statute of Limitations,, in Equity, 313 

42. Trusts. See that Title. 

43. Usury, 314 

44. Will. See that Title ; Devise and Legacy, 448 

CHARGE OF THE COURT, 314 

CHOSE IN ACTION, 321 ; and see Assignment, U,.. 80 

CITIZEN. See Domicil, 458 

CLERKS OF COURTS, 322 

1. Of their Bonds, , 322 

1— B 



xiv TABLE OF TITLES AND DIVISIONS. 

2. Removal from Office, 322 

3. Powers, Duties, Liabilities, and Fees, 3?3 

COMMON LAW 324 

CONDITION. See Covenant, 383 ; Contract, ■ 343 

CONFLICT OF LAWS, 324 

CONSIDERxiTION. See Deed, 424,430; Contract, 339; Bills of Exchange, 163 
CONSTABLE, : 328 

1. Bights, Duties, and Liabilities in general, 328 

2. Constables' Bonds; and herein of m,mmary proceedings upon them, . . .328 
CONSTITUTIONAL LAW, 330 

1. Laws affecting vested' rights and the obligation of contracts, 330 

2. Ux post facto and retrospective Laws, 331 

3. Laws which take privcde property for public uses,. 331 

4. Laivs conferring jurisdiction, ' 332 

5. Laws affecting the election and appointment of officers, 332 

6. Laws relating to commerce, taxes, and other matters, 332 

CONSTRUCTION, See Contract, 343; Deed, 424; Covenant, 383; Bills of 

Exchange, 163; Will: Statute. . 
CONTRACT, 334 

1. What constitutes a Contract; and herein of its Execution, of the 

Assent of Parties, and ' of the Subject Mcdter, 334 

2. ralidity, \ ' 335 

(«) As regards public idoHc}', iind morality, 335 

(6) Gaming, 336 

( c) Executed on Sunday, 338 

(cZ) Duress, Mental Incapacity, and Intoxication,. 338 

(e) Champerty, '.'. 339 

3. Consideration, 339 

( a) • Generallj^ . .- 339 

( h ) Moral and Equitable obligation, 340 

( c ) Insufficient consideration, and gratuitous promises, 341 

( d) Promise not to sue, or to gi^e delay, 342 

{ e ) Promise to pay the debt of another, 342 

(/) Failure of Consideration, 342 

4. Consfritction, ^ 343 

{ a) Generally, and herein of parol explanations, 343 

[ b ) Dependent, and Independent Stipulations, 343 

( c) Particular Contracts; and herein of Parol Explanations, .345 

5. Alteration, Pesci.'^sion, and Severance, 349 

6. Performance; and herein, of excuses and damages, for non-performance,. Zb\ 

CONTRIBUTION. 354. See Chancery, 256 

CORONER 357 

CORPORATION, 358 

1. Rights and Poivers of Corporations ; and herein of their By-laws, 358 

2. Contracts by Corporations ; and herein, of Assignments by them ; and 

of the Aidhority of their Officers and Agents, 360 

3. Sid)scnpiions for Stock: and herein, of the Liabilities of the Stockhold- 

ers, to the Corporation, and to Creditors, 362 

4. Actions by, and against Corporations; and herein of the Pleadings and 

Evidence, .- 364 

5. Foreign Corporations, 366 

COSTS, ^ 306 

1. Of Costs generally, for the successful Party, 366 

2. Costs imposed as terms, by the Court, 368 

3. Costs of IFiinesses, and Depositions, 368 

4. Costs against Executors, Administrators, Guardians, and Infants, .... 369 
. 5. Costs against Garnishees, 369 

6. Costs in Error, 369 



TABLE OF TITLES AND DIVISIONS. xv 

T. Costs ill Chancery^ 370 

8. Costs ill Criminal Cases, and (^ui Tarn Actions, 371 

9. Of taxing Costs, and what may be taxed generally, 371 

10. Of Security Jbr Costs, 372 

COUNTY TilEA.SL'Ri^K, 373 

COURTS, 373 

1. Supreme Cow , 373 

2. Circuit Court, 375 

3. County Court, 370 

4. Orphans'' Court, 377 

5. Court of Revenue and Roads, 379 

6. Province of the Court; and loJmi the Court will judicially notice, 380 

COVENANT,. 3 L 

1. JFhen the action lies ,\ and who may sue, 381 

2. Pleadings and Evidence, , 382 

3. Dependent, and Independent Covenants; and herein of the Construction, 

and Performance of Covenants, 383 

4. Covenants of Ifcnrantu; to inrike Title; and to Stand Seized, 385 

CRIMINAL LAW, .380 

1. Various Offenses, .387 

( a) Accessory, 387 

(6) Adulter/, . . . . : 387 

( c ) Aifray, '. '> -'T 

\d) Arson, 388 

( e) Assault and Batterj^ .388 

(/■) Assault with intent' to kill, • 388 

( q) Bribery, 389 

(h) Burglary, .389 

( i ) Carrying Concealed Weapons, 389 

[j ) Conspiracy, 389 

(A) Dueling, 389 

[l) Escape, 390 

(«0 Forgery, 390 

[n] Gaming,.....' 390 

( o) Larceny, 391 

[p] Libel, ...'. 392 

( g) Blalicious Mischief, 392 

(r) Mayhem, 393 

(s) Murder and Manslaughter, 393 

[t) Nuisance, -. 394 

(») Peddling, 394 

( v) Perjury, 394 

[ic) Poisoning, 395 

ix) Rape, .^ 395 

( >j) Resisting Process, 395 

(z) Retailing, 395 

[aa) Tavern, keeping without License, 39G 

2. Offenses in relationto Slaves, 396 

( a) Stealing Slaves, 396 

h ) Concealing Slaves charged v\"ith crimes, .397 

I Trading with Slaves, 397 

d) Cruel Punishment of Slaves, 397 

e) Plotting with Slaves, to rebel, 397 

(/) Employing Slaves, to sample cotton, 398 

[g] Selling Slaves, without License, 398 

3. Pleadings, ■ 398 

(«) Indictment, 398 

[h] Pleas, and Defenses, 399 



xvi TABLE OF TITLES AND DIVISIONS. 

4. Trial, '. 402 

( a) Arraignment and Plea, 402 

(6) Separate Trials, : 403 

' ic) Assistant Counsel, and Defense in Person, 403 

\d\ Of the Jury, 403 

\e) Evidence, 404 

(/) Verdict, 406 

[g) Sentence, 407 

(A) Arrest of Judgment, 407 

{i) Nolle Prosequi, and Discharge, 408 

[j] Change ofVenue, 408 

[k] Trial of Slaves, 409 

5. Custody of offenders, 410 

6. Bail and Recognizance. See Bail, Y, 133 

7. Prosecutor, 410 

8. Novel and Difficidt questions, hoto jjresented ; and herein of the Bill of 

Exceptions, and Writ of Error, 410 

CURTESY. See Husband and Wife} Doioer and Curtesy, II, 464 

CUSTOM AND USAGE, 411 

DAMAGES, 413' 

1. In Actions for Torts, 413 

(a) Against Officers, 413 

(6) In Trespass, 414 

(c) In Trover, 414 

{d) In Detinue, ...415 

. le) In Slander, 415 

If) In Ejectment, and Trespass to try Title, 416 

[g] For vrrongfully suing out Attachments, 416 

2. In Actions on Contracts, 417 

fa] Non-performance of -Contracts of Sale,.. 417 

(6) Warranty of Chattels, '. 417 

(c) Contracts to Procure, and to Make Title, 417 

( d) Breaches of Contracts generally ; and herein of recouping 

Damages, 417 

3 . Liquidated Damages and Penalty, 418 

4. Damages on Bills of Exchange, 419 

5. On Writ of Error, Injunction, and Appeal Bonds, 419 

DEBT, 420 

1. When tJie Action lies, or not, 420 

2. Pleadings and Evidence, 421 

3. Verdict and Judgment, 422 

DEDICATION, 422 

DEED 423 

1. Fo7-m and Requisites, 423 

2. Execution and Delivery, 424 

3. Consideration, 424 

4. Construction and Validity, 424 

5. Operation, and what estate passes, 425 

6. Altering and Canceling, 428 

7. Official Deeds, 428 

(a) Sheriffs' 428 

(6) Tax Collectors', 429 

8. Deeds of Trust 429 

( a) Execution and Assent of Beneficiaries, 429 

( b) Consideration, 430 



TABLE OF TITLES AND DIVISIONS. xvii 

( c ) What may be convej-ecl, . 430 

[d ) Resulting Trusts, and stipulations for possession, 430 

( e ) Validity, and herein of Fraud, 43 1 

If) Interests of Grantor, subject to execution 432 

{g ) Sales by Trustees, 433 

9. Proof of Deeds, 434 

10. Begistration a ml Notice, 435 

(a) When Registration is authorised, or not, 435 

[h] When necessary, or not, 436 

(c) Effect of Registration, 437 

[d] Effect of unregistei'ed Deeds, and Notice, 437 

11. Deeds of Assignment. Sue Assign inent, I, 76' 

DEPOSITION,:. 438 

1. When and lioic a Deposition mag be taken, 438 

2. Affidavit for Commission, 439 

3. Notice, , 439 

4. Commissio n, 440 

5. Manner of taking and returning, 441 

G . Retaking, _ 442 

7. When admissible, or not, ingeneral, 442 

8. Ride lohenpart is admissible, and part is not : and herein oj' objections 

for irregularities, and of siippressinq, 443 

DESCENT. ^ See Heirs. 

DETINUE, 445 

1. When the action lies, or not, 445 

2. Demand, 44G 

3 . Pleadings, Evidence, and Defense, 446 

4. Damages, Verdict, and Judgment, 447 

5. Statute Bond, 448 

DEVISE AND LEGACY 448 

1. Who take, and what Estate passes,.... 448 

2. Executory Devises, and void Limitations, 451 

3. Devise in Trust, '. , 452 

4. Legacies in General, 452 

\a) When Vested, 452 

(6) When a satisfaction of a Debt, or not, 453 

( c ) Ademption, 453 

( d ) Assent of Executor, 453 

( e ) Payment, 454 

(/) Interest, 454 

{g) Proceedings to recover, 454 

( li ) Refunding Bond, 455 

DISCONTINUANCE. See Practice. 
DISCOVERY AT LAW. See Evidence. 

DISCOVERY, BILL OF, See Chancery, 246 

DISTRIBUTION. See Execidors and Administrators ; Chancery, 272 

DIVORCE AND ALIMONY, .• 455 

1. Divorce, 455 

(a) For Adultery, 455 

(6) For Abandonment, 456 

(c) For Cruelty, 456 

id) Of the Bill, Answer and Decree, 456 

( e ) Division of Property, 457 

(/) Costs, *. 457 

2. Alimony, 457 

DOMICIL, 458 

DONATIO CAUSA MORTIS. See Gift. 

DOWER AND CURTESY,.. 45S 

1. Of the right of Dotcer, 458 



xviii TABLE OF TITLES AND DIVISIONS. 

2. Rights of Widow, before Dover is assigned, 459 

3. Of what a Widow is, or is not dowable, 459 

4. Proceedings to recover Doirer ; and herein of the Assignment, 460 

5. Damages and Rent, ." 462 

6. Nature of the estate, and h.erein of Waste, 462 

7. Bur of Dotcer, ". 462 

[a] By provisions in lieu of Dower, 462 

( I) ) B^^ Forfeiture, and otherwise, 463 

8. Curtesy, 464 

DRUNKENNESS. NV Criminal Law, 402, sec. 261 ; Contract, 338 

DURESS. See Contract, 338 



TABLE OF GASES. 



Note. — In the Tables of Cases, the Reports are referred to thus,— Minor, M-;: 
Stewart, S; Stewart & Porter, S. & P; Porter, P; Alabama Reports, A. R. With 
the exception of Minor, which is written in full, they are referred to in the same- 
manner, in the Ijody of the work. 



Abbott V. Kennedy, 
Abercrombie v. Alderson, 

'■ — V. Baldwin, 

, Billinslea v. 

V. Bradford, 

V. Chandler, 

A'. Conner, 

, Graham v. 

V. Hall, 

, Jordan v. 

V. Knox, 

V. , 

, V. 

Y. IMosely, 

, Rid<lle V. 

, Rumph V. 

, Scott V. 

Abney v. Carter, 

V. Kingslaud, 

Abram, State \'. 



Absence, v. 

Acre, Gaines v. 

, Jones V. 

V. Ross, 

— ^ , Taylor v. 

Adams v. Adams, 

, Armstrong t. 

— ■ ■ V. Barron, 

— V. Broughton, 

— ■ , Brown v. 

V. Davis, 

, Dnnn v. 



629 
997 
145 



5 A. R. 393 
9 A. R. 981 

15 A. R. 363 
2 S & P. 24 

16 A. R. 560 
9 A. R. 625 

10 A. R. 293 
8 A. R. 552 

6 A. R. 657 

15 A. R. 580 
3 A. R. 728 

9 P. 

11 A. R. 

9 P. 
3 A. H. 728 

12 A. R. 64 
14 A. R. 270 

3 A. R. 715 
R. 355 
R. 272 
R. 928 
4 P. 397 
M. 141 
M. 5 

' 3 S. 288 

8 A. R. 491 

• 3 S. 

6A. R. 

13 A. R. 
13 A. R. 

1 S. 

16 A. R. 



10 A. 
4 A. 

IDA. 



57 

rsi 

205 

731 

51 

(48 



Adams v. Frarapton, 

— V. Garrett, 

V. Governor, ■ 

, Hamilton v. 

V. Horsefield, 



Huntington 
V. McGrew, 



V. McMillan, 



V. Moore, 
Nail V. 
Roberts v. 

V. 

V. Robinson, 
V. Shelby, 
State v," 



V. Tanner, 

— , Thomas v- 

— V. Torbert,.. 

. V. y\'ard, 

V. White, 

Adamson v, Parker, 
Adair, Brown v. 

, Quinn v. 

Adkins v. Allen, 

, Burke v.. 

, Lee v. 

Adler, Schaefer r. 
Adm'r of Alexander 



9 A. 
12 A. 

1 A. 
15 A. 
14 A. 
10 A. 
12 A. 

2 A. 



R. 
R. 
R. 
R. 
R. 
R. 
R. 
R. 
2 S. 

7 P. 

8 P. 

9 P. 
7 A. R. 

6 P. 

8 P. 

M, 

10 A. R. 

2 S. 
14 A. R. 

5 A. R. 

2 P. 

6 A. R. 

1 S. 

2 A. R. 

3 A. R. 
1 S. & P. 

4 A. R. 

1 S. 

2 P. 
M. 

14 A. R. 
Bank 



124 
229 
627 
596 
223 
9 
834 
675 
502 

( o 

445 
406 
475 
361 
297 
285. 
478: 
231 
486. 
740 
188 
865- 
42 
37 

72r 

49 
315 
130 

236 

187 
723: 



1 A. R. 527 



at Montgomery, 5 A. R..465' 



■# 



XX 



TABLE OF CASES. 



Adm'r of Beebe v. Miller, M. 

B.ages, Dement v. 13 A. R. 

Booker v. Hunt. 1 P. 

Ellis V. Adm'r of Taylor, 1 P. 

Geo V. Williamson, 1 P. 

James v. Scott, 7 P. 

Jenkins, Jennings v. 9 A. R. 

Lewis V. Lewis, M. 

Mardis v. Smith, 2 A. R. 

May V. May. 1 P. 

McLemore, Young t. 3 A. R. 

Murphy, B. B. Mob. v. 7 A. R. 

Peirce, Castleberry v. 5 -S. & P 

Pledger, Ex'rs of Good- 
man V. 14 A. 

Pryor, Adm'r of Wig- 
gins V. 3 

Reynolds v. Pharr, 9 A. 

Shields, Houpt v. 3 

Sims, Sims v. 8 

Spcnce Y. Whitaker, 3 

Taylor, Adm'r of Ellis v 

Weatherford v. Weath- 

_ erford, 8 P. 171 

Wiggins V 



364 
140 

26 
280 
313 

30 
285 

35 
382 
229 
295 
577 
150 



R. 114 



P. 

R. 

P. 

P. 
iP. 
IP. 



430 
560 
247 
449 

297 
289 



Pryor, 
Agee, Gayle v. 



Grcssett v. 
Y. Steele, 



Aikin y. Bloodgood, 

, School Com'rs 

Ainsworth y. Partillo, 
, Samuels v. 



Adm'r of 

3 P. 

4 P. 

4 P. 
14 A. R. 

8 A. R. 

12 A. R. 

5 P. 

13 A. R. 



13 A. r: 



Ala. L. I. & T. Co., Cunning- 



ham 

Gee Y. 

Smith Y. 



4 A. 
13 A. 
16 A. 

4 A. 
10 A, 

3 P. 
12 A. R. 

9 A. R. 

4 P. 



Y. Warner, 

Alexander y. Alexander, 



Albritton, Huckabcc v. 
Alday v. Jamison, 
Alderson y. Harris, 

, Abercrombie y. 

Aldridge y. Hightower, 

Y. Tusc'bia R. R. Co.2 S. & P. 

2 P. 
5 A. R. 

8 A. R. 
7 A. R. 

9 P. 

7 A. R. 

4 P. 

9 A. R. 
12 A. R. 

9 A. R. 

7 A. R. 

16 A. R. 

9 P. 

16 A. R. 



Y. Collins, 

Y. Dennis, 

Y. Fisher, 

Y. Pitzpatrick, 
, Hall Y. 
, Holford Y. 

Y. Hutchison, 

Y. Knox, 
, Mcintosh Y. 
, Strader y. 

Y. State. 



430 
439 
507 
354 
948 
221 
169 
460 
360 

652 
579 
637 
558 
657 
112 
580 
981 
418 
199 

92 
517 
796 
480 
174 
514 
405 
219 
280 
825 
503 

87 
441 
601 



Alexander, Ward v, 
Alford V. Colson, 

V. Johnson, 

V. Samuel, 

, Towns Y. 



Allaire, Hallett y. ' 

, Mayor of Mobile y 

, State V. 

Allen V. Allen, 



14 A. 
14 A. 

4 A. 



, Adkins v. 

Y. Best, 

Y. Booker, 

Y. Bradford, 

V. Claunch, 

, Y. 

, Davis Y. 

Y. Dickson, 
, Gardner v. 
, Hallett V. 

Y. Hays, 
, Litchfield V. 
, Loomis v. 

Y. Manasse, 

Y. Matthews, 
, Mayfield y. 
, McLaren v. 
, Mitchell Y. 

Y. Mont'yR. R. Co. 

Y. Morgan, 
, Rol.)ertson y. 
, State Bank y. 
, State V. 
, Thompson v. 
, TraYis v. 

Y. White, 



V. , 

, Wilkinson y. 



AUred, Powell v. 
AUums V. Hawley, 
Alsobrook y. Southerland, 
v. Deshler, 



Alston V. Coleman, 

, Finch V. 

V. Graves, 

Y. Hear tm an, 

, Hogan Y. 

, Ravisies v. 

, Shields v. 

, Vanderveer \ 



Alvis, Scales v. 
Amarine, McCaskle 
Ames V. Schuesler', 
— , V. 



Middlebrook v. 



Anderson v. Bright, 

Y. Brooks, 

. Clerk Co. Court v. 



1 S. 
8 A. R. 

9 P. 
8 A. R. 

2 A. R. 

M. 
R. 
R. 
M. 
R. 
1 S. 

6 A. R. 

2S. 

3 A. R. 

7 A. R. 

12 A. R. 
11 A. R. 

M. 

6 A. R. 

13 A. R. 

1 S. 

7 A. R. 

7 A. R. 
4A. R. 

IS. 

M. 

M. 

2 S. & P. 

11 A. R. 

1 S. 

16 A. R. 

15 A. R. 

1 A. R. 

4 S. & P. 

1 S. & P. 

M. 
M. 

16 A. R. 
11 A. R. 

11 A. R. 

8 A. R. 

2 S. & P. 

10 A. R. 
7 A. R. 

2 S. & P. 
6A.R. 

2 A. R. 

9 A. R. 
5 A. R. 

4 A. R. 
16 A. R. 

12 A. R. 
12 A. R. 

14 A. R. 
16 A. R. 

5 S. & P. 
12 A. R. 

11 A. R. 
11 A. R. 



382 
550 
320 

95 
378 
360 
400 
435 
249 
556 
130 
234 

21 
281 
788 
159 
164 
119 
187 
554 

10 
779 
706 
554 
273 
274 
117 
247 
437 
9 
106 
788 
442 
184 
192 
289 
365 
181 
128 
318 
584 
267 
698 
795 

83 
174 
699 
627 
297 
248 
494 
617 

17 
600 

73 
158 
478 
953 
410 



TABLE OF CASES. 



XXI 



Anderson v. Collins, 

V. Cunningham, 

V. Dickson, 

V. Garth, 

V. Hooks, 

V. Rhea, 

, Roberts v. 

V. Snow, 

V. , 



Stewart v. 
Watson V. 

V. 



Andress v. Crawford, 

V. Longmire, 

Andrews v. Baggs, 

V. Br. Bank Mobile, 

V. Burns, 

English V. 

Gibson v. 

Glidden v, 

V. 

V. 



9 
10 
13 
11 
11 
11 

10 
11 



Hall, 
, Hanrick v. 
V. Jones, 



V. McCoy, 
, Moore v. 
, Murphy v. 
, P. & M. Bank v. 
, Riggs V. 

V. Roach, 



10 
14 
15 

10 
10 



13 



Anonymous, 

Ansley v. Carlos, 

, V. 

V. Mock, 

V. Nolan, 

V. Pearson, 

V. Robinson, 

Antones v. Heirs of Eslava 
Apperson v. Cottrel, 

, Gray v. 

, Slaton V. 

Armor, Shelton v. 
Armstead, Bennett v. 

, Forward v. 

, Mauldin v. 

, Smith V. 

V. Thomas, 

Armstrong v. Adams, 

, Botts V. 

V. Dargan, 

V. Gay, 

— '■ V. Johnson, 

, King V. 

, Lowry v. 

, McMahan v. 

, Moore v. 

1— c 



3 

15 

13 

3 

12 

14 

7 

9 

6 

11 



14 

3S 
2S 



A. R. 

M. 

A. R. 

1 S. 

A. R. 

A. R. 

M. 
A. R. 
A. R. 
A. R. 
A. R. 
A. R. 
A. R. 
A. R. 

M. 
A. R. 
A. R. 

4 P. 
A. R. 
A. R. 
A. R. 
A. R. 
A. R. 

9 P. 
A. R. 
A. R. 
A. R. 

5 P. 
A. R. 

8 P. 
A. R. 
A. R. 

M. 

2S. 

A. R. 

A. R. 

A. R. 

6 P. 
A. R. 
A. R. 

9 P. 
3 P. 

A. R. 
A. R. 
A. R. 
A. R. 
A. R. 
A.R. 
A. R. 
A.R. 
A.R. 

8 P. 
A.R. 

1 S. 

M. 

A. R. 

. &P. 

&P. 

9 P. 



Ii56 

48 

700 
/OO 

160 
704 
104 
113 
504 
247 
504 
202 

43 
853 
166 
173 
375 
691 
319 

66 
190 
166 
733 

85 
9 
400 
460 
920 
107 
708 
404 
628 
590 

52 
228 
973 
900 
444 
379 
431 
793 
527 

51 
328 
721 
647 
507 
124 
702 
698 
586 
751 

57 
506 
175 
169 
293 
297 
151 
697 



Armstrong v. Robertson, 

V. State, 

y. Tait, 

, Thompson v. 



Arnett, Holman v. 
Arnold v. Sheppard, 
Ari-iagton, Chapman v. 

V. Howell, 

V. Jones, 



Arthur v. Broadnax, 

, Corprew v. 

V. Saunders, 



Asbury, Blair v 
Ashburne v. Gibson's adm 
Ashhurst v. Ashhurst, 

-, Hodges V. 

Martin, 



13 

2 



Ashley, Hopper v. 
— - — v. Ashley, 
Ashlock, Owen's adm'rs v 
Askew V. Weissinger, 
Athengeum, Foster v. 
Atkinson, Oliver v. 
Atkyns, State v. 
Atwood V. Craig, 



, Emanuel v. 

, Johnson v. 

, Lucas V. 

V. Pierson, 

V. Smith, 

Augustin, Simmons v. 
Auld, James v. 

, Wilson V. 

, V. 



Austin V. Crawford, 

, Dinsmore v. 

, Fryer v. 

Clmer v. 



Austin, Logan v. 

V. Pickett, 

, Toulmin v. 

•, Upson V. 



Autery, State v. 
Autrey, Jordan v. 
Auze's Heirs, Batre v. 
Avent V. Read, 



Averett v. Thompson, 
Avery, Lockhart v. 

, Martin v. 

Wyatt V. 



Ayres, Davis v. 

V. Dobson, 

V. Moore, 

■ , State V. 

, Thompson v. 

, Wyatt v. 



2 A.R. 

M. 

8 A. R. 

5 A.R, 
7 A.R. 

4 P. 

6 A. R. 

3 S, 

4 P. 
9 P. 

3 A 
15 A. 

9 
4 
r. 9 
A 
A 
9 

15 A. R. 

15 A. R. 

9 P. 

6 A. R. 

3 A. R. 

2 P. 

1 A.R. 

3 S. & P. 

1 S. & P. 

6 P. 

2S. 

2 S. 

9 A. R. 
11 A. R. 

3 P. 
9 A. R, 

7 A. R. 

8 A. R. 

7 A.R. 

M. 
2 S. 
9 P. 
IS. 

9 A. R. 
5 S. & P. 

4 A. R. 

1 S. 
10 A. R. 

5 A.R. 

2S. 

2 P. 
15 A. R. 

8 A. R. 

8 A.R. 
14 A. R. 

9 A. R. 
5 S. & P. 

2S. 

M. 

IS. 

2 P. 



164 
160 
635 
383 
256 

63 
299 
480 
317 
139 
557 
525 
626 
435 
549 
781 
301 
566 
457 

15 
417 
907 
302 
546 
180 

21 

86 
384 
225 
378 
656 
894 

69 
462 
302 
842 
335 

89 
119 
157 
476 
102 
410 
124 
399 
276 
173 
488 
480 
678 
502 
430 
586 
292 
441 
336 
323 
171 
157 



XXll 



TABLE OF CASES. 



B 



Babcock v. Herbert, 

V. Huntington, 

, Perrine v. 

' — : — T^- 

■ V. Williams, 



Baber, Scott v. 
Bachelor, Pharr v. 
Bacon, Gee v. 
Badger v. Kell}-, 

— ■ V. Lyon, 

v. State, 

Bagby v. Chandler, 



■ y. Harris, 
V. McEae, 



Baggs, Andrews v. 
Bailey, Barnes v. 

, Brown v. 

, Graggs V. 

■ V. White, 

Baird, La Tourette v, 

: V. Nichols, 

Baker, Barnes v. 
v. Blackburn, 



, BroAvn v. 

, Den-ick v. 

, Governor v. 

, Hobson v. 

V. Moody, 

V. Rowan, 

V. Washington, 

Baldwin, Abercrombie x. 

, Beckwith v. 

V. Brogden, 

• , Freeman v. 

■ — , Fowlkes V. 

■ V. Gully, 

— ■ V. Leftwich, 

— ■- , ]Martin v. 

— ■■ V. Stebbins, 

Ball V. State Bank, 

, West V. 

Ballard, Parmer v. 
Ballew, Johnson v. 

— ■■ , Sawy*3r v. 

Bancroft v. B. Bank Mobi 

— : V. Gcu'crnor, 

— — — V. Paine, 

— . Park V. 

V. Stanton, 

Bandy, Boggs v. 



3 A. R. 
9 A. R. 

6 P. 

8 P. 
9 A. R. 

13 A. R. 

3 A. R. 
9 A. R. 

10 A. R. 

7 A. R. 
5 A. R. 

8 A; R; 

9 A. r: 

9 A. R. 
2 A. R. 

M. 

2 A. R. 

4 A. R. 

10 A. R. 

3 A, R. 

M. 

2 P. 

M. 

5 A. R. 

7 P. 
1 A. R. 

9 P. 
9 P. 

14 A. R. 
8 A. R. 

1 A. R. 
2 S. & P. 
5 S. & P. 

15 A. R. 

12 A. R. 

2 S. 

13 A. R. 

2 A. R. 

11 A. R. 

12 A. R. 

7 A. R. 

M. 

8 A. R. 
12 A. R. 

3 S. 
2 P. 

4 P. 
le,l A. R, 

It) A. R. 

15 A. R. 

22 A. R. 

7 A. R, 

2 S 



392 
869 
391 
131 
150 
182 
237 
699 
944 
564 

21 
230 
770 
173 
708 
173 
749 
413 
341 
330 
325 
186- 
373 
417 
284 
173 
503 
362 
652 
357 
315 
361 
142 
363 
720 
9 
246 
705 
716 
838 
923 
180 
590 
340 
326 

29 
116 
230 
605 
834 
468 
351 
459 



Bank of Alabama, Allen, v. 15 A. R. 7^ 



Ball V. 8 A. R 

Barton v. 1 S. & P. 
Bates V. 2 A. R. 
Broughton v. , 6 P. 
Bondurant v. 5 A. R. 

V. 7 A. R. 

Carson v. 4 A. R. 

V. Comegys, 12 A. R. 

Colgin V. 11 A. R. 

Crawford v. 5 A. R. 

V. Croft, 6 A. R. 

V. Dent, 12 A. R. 

V. 12 A. R. 

Dew V. 9 A. R. 

Evans v. 13 A. R. 

V. 15 A. R. 

ex parte, 6 A. R. 

V. Faison, 4 P. 

Faver v. 10 A. R. 

Findlay v. 6 A. R. 

Fortune v. 4 A. R. 

Garey v. 11 A. R. 

V. Gibson, 6 A. R. 

V. Godden, 15 A. R. 

Griifin V. 6 A. R. 

Hill V. 5 P. 

V. Hooks, 2 P. 

Hudson V. 3 P. 

T. Johnson, 9 A. R. 

Leigh V. IDA. R. 

V. Lucas, 4 P. 

Lvon V. 12 A. R. 

1 S. 

4 P. 

4 A. R. 

3 P. 

11 A. R. 

11 A. R. 

Roljerts v. 9 P. 

V. Smith, 6 A. R. 

Tankersly v. 6 A. R. 

Walker v. 4 S. & P. 

V. Whitlow, A. R. 

Woodruff V. 4A.R. 

Wrigglesworth v. 1 A. R. 

Young V. 5 A. R. 

of Columbus, Ilinton v. 9 P. 

McRae v. 1 A. R. 



V. McDade, 
v. Martin, 

Moorman v 

RIggsv. 

v. 



-, Commercial V. White- 
head, 4 A. R. 

, Prince v. 1 A. R. 

- Darien, Lucas v. 2 S. 



590 
471 

451 
48 
171 
830 
148 
772 
222 
679 
622 
187 
275 
323 
787 
81 
498 
252 
616 
244 
385 
771 
814 
616 
908 
537 
271 
340 
367 
339 
252 
508 
442 
252, 
615 
353 
160 
183 
312 
75 
277 
215 
135 
292 
222 
179 
463 
578 

037 
241 

280 



TABLE OF CASES. 



XXlli 



Bank of Georgia, Lucas v. 2 S. 147 

at Hawkiusville, O'Ha- 

ra V. 2 A. R. 

of Iluntsville, Betts v. 3 S. 

, Brandon v. 1 S. 

V. Hill, 1 S. 

, Logwood V. M. 

V. Walker, M 



■ of Mobile, Cra-\vford v. 5 A. R 



8 P. 

2 A. R. 

9 P. 
1 A. R. 
6 A. R. 

6 A. R. 

3 A. R. 

7 A.R. 

7 A. R. 

, V. 10 A. R. 

-V. P.&M.Bank,lA.R. 
- V. , 8 A. R. 

9 A. R. 

8 A. R. 
-9 P. 

" M. 

6 A. R. 

13 A. R. 



Curry v. 

, Dunn V. 

, Ford V. 

, Gazzam v. 
V. Hall, 

V. , 

V. Huggins, 

, Lester v. 
V. Marston, 



Sayre, 



■ V. State, 

, Walker v. 

V. Williams, 

of Norfolk, Holman's 

heirs v, 12 A. R. 

of Orleans, Wilson v. 9 A. R. 
• U. S. V. Mausony, 4 A. R. 

, Hitchcock V. ' 7 A, R. 

Branch at Decatur, 

Blevins v. 6 A. R. 

, Crawford v. 6 A. R. 

■ , Crow V. 

V. Donelson, 

V. Douglass, 

, Ford V. 

, Hancock v. 

V. Hawkins, 

V. Hodges, 

, Hogan V. 

V. Johnson, 

V. Jones, 

v. Kinsey, 

V. Lanier, 

, Lightfoot V. 

, Martin v. 

Peirce, 



, Posey, V. 

■ , Prout V. 

V. Rhodes, 

, vSale V. 

, Sanders r. 

, Shaw V. 

, Simersou y, 

V. Spencc, 

, White V. 



5 A.R. 
12 A. R. 

9 A. R. 

6 A. R. 
5 A. R. 

12 A. R. 
9 A. R. 

10 A. R. 
9 A. R. 
5 A.R. 

5 A. R. 

7 A.R. 

2 A. R. 

15 A. R. 

3 A. R. 

12 A. R, 

6 A. R. 

11 A. R. 
1 A, R. 

13 A. R. 

16 A. R. 

12 A. R. 
9 a: R. 
1 A. R. 



367 

18 

320 

201 

oo 
—o 

391 
55 
360 
152 
471 
268 
141 
639 
206 
490 
1Q8 
284 
109 
772 
645 
806 
423 
290 
452 
544 

369 
847 
735 
386 



574 
249 
741 
853 
286 
440 
755 
631 
485 
621 
487 
9 
595 
345 
587 
321 
802 
309 
283 
425 
353 
708 
205 
800 
435 



B. B. at Decatur, Whiteside v. 10 A. R. 249 
Branch at Iluntsville, 



Griffin v 

, Jordan v. 

V. Marshall, 

, McCartney v. 

V. Robinson, 

• T. Steele, 

, Taylor v. 

■ Branch at Mobile, 
drevi's v. 

-, Bancroft v. 

^ates T. 
-, Beard v. 
-, Blackman v. 



■ V. Boykin, 
V. Broughton, 
•, Caldwell v. 
■, Cocke V. 
• V. Collins, 
-, Crtiwford v. 

, V. 

■, — : — V. 



-, Cullum V. 

- v. Darrington, 
-, Davis V. 
-, Del Barco v. 
-, Dickinson v. 
-, Dyer v. 
-, Erwin v. 

V. Ford, 

- v. Furness, 
-,'Fry V. 
-, Gilmer v. 
-, Godbold V. 
-V. Ilallett, . 

-, V. 

-, Henley v. 
-, Hetherington 
-, Hollinger v. 
-, Hood V. 
-, Hooks V. 

- V. Hunt, 
-, Huntington v 

Inge V. 
- V. -James, 
, Kitchen v. 
, Lea V. 
•, ]Ma,rsh v. 
■, JIartin v. 
■, Mauldin v. 
•, BIcGowan v. 
■, JlcWalker x. 
■ v. iMurphy, 



9 A. 
5 A. 

4 A. 
3 A. 

5 A. 
10 A. 

14 a; 

An- 
10 A. 

1 A. 

2 A. 

8 a! 

8 A. 
10 A. 
12 A. 

9xi. 

10 A. 

11 A, 

3 A. 
7 A. 

6 A. 

7 A. 

7 A. 

8 A. 

4 A. 
14 A. 

12 A. 
12 A. 

12 A. 
14 A. 
14 A. 

13 A. 
12 A. 
16 A. 

1 A. 

11 A. 

12 A. 
12 A. 
16 A. 
V.14 

8 A. 

9 A. 
8 A. 

8 A. 
.3 A. 

8 

9 A. 

14 ,A. 

8 
10 A. 
10 A. 

2 A. 
7 A. 

3 A. 
.s A. 
7 A. 

5 A. 



R. 201 
R. 284 
R. 60 
R. 709 
R. 623 
R. 915 
R. C33 

R. 375 
R. 230 
R. 689 
R. 344 
R. 103 
R. 970 
R. 494 
R. 320 
R. 147 
R.549 
R. 175 
R. 95 
R. 12 
R. 205 

R. ooo 

R: 79 
R. 21 
R. 192 
R. 463 
R. 238 
R. 54 
R. 622 
R.307 
R. 431 
R. 367 
R. 282 
R. 538 
R. 191 
R. 671 
R. 193 
R. 552 
i. R. 68 
, R. 605 
, R. 335 
R. 580 
R. 876 
R. 186 
P. 108 
R. 949 
R. 233 
P. 119 
R. 57 
R. 182 
R. 502 
R. 823 
R. 153 
R. 119 
R. 577 
R. 421 



XXIV 



TABLE OF CASES. 



B. B. Mohile, Murphy v 

, Moffitt V. 



16 A. R. 
7 A. R. 

, Owen V. 3 A. R. 

V. Poe, 1 A. R. 

, Rutherford v. 14 A. R. 

V. Rutledge, 13 A. R. 

V. Scott, 
, Smith V. 



V. 

-, Snelgrove y. 
-, Stinnett v. 

- V. Strother, 

- V. Taylor, 
-, Terrell v. 

- V. Thompson, 

- V. Tillman, 

- T. , 



A. R. 

A. R. 

A. R. 

A. R. 

A. R. 
15 A. R. 
10 A. R. 
12 A. R. 
9 A. R. 
10 A. R. 
12 A. R. 
1 A. R. 
12 A. R. 
, 7 A. R. 
8 P. 



, Wallace v. 

, Wicks V. 

, Williamson v, 

,Wragg V. 

■ Branch at Montgomery, 

Alexander V. 5 A. R. 

V. Broughton, 15 A. R. 

, Bussey v. 15 A. R. 

, Clements v. 1 A. R. 

• V. Crocheron, 5 A. R. 

V. Curry, 13 A. R. 

, Fitzpatrick v. 14 A. R. 

V. Gaffney, 9 A. R. 

, Gilchrist V. 11 A. R. 

, Hardy v. 15 A. R. 

V. Harrison, 2 P. 

. V. , 1 A. R. 

- , Henderson v. 11 A. R. 



V. Hodges, 



-, Hooks V. 
-, Johnston v 
- V. Knox, 
-, Larkin v. 
-, Lewis V. 
McMichael v. 14 A 



12 A. R. 

13 A. R. 
15 A. R. 

7 A. R. 

1 A. R. 

9 P. 

6 A. R. 

R. 



V. Parker, 

— V. Perdue, 

— V. Sydnor, 
— , Ticknor v. 

— V. Wade, 
— , Whetstone v 

— V. Wilkins, 
— , Williamson v. 

and M. of Slobile 

Andrews, 
—,B. of Mobile 
— , V. 



5 A. R. 
3 A. R. 
7 A. R. 
3 A. R. 
13 A. R. 
9 A. R. 
7 A. R. 
3 A. R. 



-^ Bates 



Blair, 



8 P. 
1 A. R. 

8 A. R. 

9 A. R. 

8 P. 

'.) P. 

4 A. R. 



90 
593 
258 
396 

92 
196 
107 

26 
880 
295 
120 

51 

67 
502 
295 
149 
214 
565 
594 
906 
195 

465 
127 
216 
50 
250 
304 
533 
153 
408 
722 
540 
9 
855 
118 
455 
609 
379 
148 
434 
496 
496 
731 
409 
308 
135 
427 
-875 
589 
504 

404 
109 
772 
645 
99 
376 
613 



B'k P. & M. Slob. V. Borland, 5 A, R. 



Clarke, 
Crawford v. 



•V. 



, Creighton v 

V. Dundas, 
, Duval V. 
, Godbold V. 
, Hazard v. 
, Hull V. 

V. King, 

V. Leavens, 
, Levertv. 
, Reid V. 
, Saltmarsh v. 14 A. R. 



7 A. R 

4A. R. 

6 A. R. 

3 A. R. 
10 A. R. 
10 A. R. 

4A. R. 

4A. R. 

6 A. R. 

9 A. R. 

4A. R. 
8 P. 

3 A. R. 



V. Smith, 

V. State, 

V. Walker, 

^ V. Willis, 

Banks v. Broughton, 

, Carleton v. 

V. Lewis, 

, Peacock v. 

V. Whitehead, 



Barber, Witherspoon v. 
Barclay, Boyd v. 

, Curry v. 

, Finn v. 

, Logan V. 

, Moore v. 

, Potior V. 

, Spence v. 

, Tuggle V. 



Bardwell, Towns y. 
Barefield v. State, 
Barelli v. O'Conner, 
Barge, Hill v. 
Barker v. Callihan, 
Barlow v. Garrow, 
V. Flemming, 



Barnes v. Bailey, 

V. Baker, 

• V. Blair, 

, Brown v. 

, Carson v. 

V. Peck, 



Barnett v. Bass, 

, Durden v. 

V. Gaines, 

V. Gholson, 

, Nettles V. 

, Snedicor v. 

V. State, 

Barney v. Bush, 

V. Earle, 

V. Frowner, 

Barr v. White, 
Barrinjrer v. Sneed, 



1 

3 
15 



14 A. R. 

12 A. R. 
7 A. R. 

5 A. R. 

13 A. R. 
7 A. R. 
4A. R. 

M. 

7 A. R. 

3S. 

A. R. 

A. R. 

A. R. 

3 A. R. 

16 A. R. 

15 A. R. 

8 A. R. 

6 A. R. 
1 S. & P. 

14 A. R. 
6 A. R. 

12 A. R. 

5 A. R. 

M. 

6 A. R. 
2 A. R. 

M. 
16 A. R. 

6 A. R. 
1 A. R. 

IP. 
10 A. R. 

7 A. R 

8 A. R 

9P 
8P 

9 A. R 

15 A. R 
9 A. R 

13 A. R 
9 A. R 

2P 
3S 
IS 



531 
765 
313 
289 
156 
661 
636 
516 
299 
761 
27^ 
753 

104r 

712 
668 
41& 
657 
926 
770 
731 

32 
599 
387 

8» 
335^ 

34 
484 
626 
361 
158 
43» 
581 
407 

36 
603 
617 
687 
708 
1 
146 
749 
373 

71 
694 

93 

187 

951 

.169 

373 

381 

181 

434 

829 

.345 

106 

901 

342 

.201 

. 134 



TABLE OF CASES. 



.XXV 



Barron, Adams v. 

V. Pagles, 

V. Vandvert, 

Barrow, Governor v. 

V. Pagles, 

, Russell V. 

Bartlett, Brown v. 

, Davenport v. 

• V. Gayle, 

■ , Herndon v. 

• V. Lang, 

V. , 

V. McRae, 

■ V. Morris, 



, Mussina v. 

Barton, Cloud v. 

V. Lockhart, 

— ■ V. McKinney, 

V. Peck, 

V. State Bank, 

Baskin, Lunsford v. 

V. Sample, 

Bass, Barnett v. 

V. Brooks, 

V. Cook, 

V. Gilliland, 

, Taylor v. 

Bassett v. Jordan, 

, Talliaferro v. 

Watkins, v. 



13 A. R. 
6 A. R. 
13 A. R. 

13 A. R. 
6 A. R. 

7 P. 
2 A. R. 
9 A. R. 
6 A. R. 

4 P. 
2 A. R. 

2 A. R. 
4A. R. 

9 P. 

8 P. 

14 A. R. 

2 S. & P. 

3 S. & P. 
1 S. & P. 
1 S. & P. 

6 A. R. 

6 A. R. 

10 A. R. 

■ 1 S. 

4 P. 

5A. R. 

5 A. R. 

1 S. 

3 A. R. 
3 A. R 



Bates V. Br. Bank at Mobile, 2 A. R, 



Brown v. 
-, Chamberlain v. 
-, Gary v. 
-, Kirksey v. 
-, • V. 



•, Leverich v. 

■ V. Murphy, 

■ V. P. and M. Bank of 

Mobile, 



10 A. R, 

2 P. 

12 A. R. 

7 P. 

1 A. R. 

6 A. R. 

2 S. & P. 



, Puckett V. 
V. Ryland, 

, V. 

, Sewall V. 



V. Starr, 

V. State Bank, 

V. Terrell, 

Batre, Auze v. 
, CuUum V. 

' — : — '^■ 

V. Simpson, 



8 P. 

9 P. 
4 A. R. 
6 A. R. 

4 A. R. 

2S. 
3 S. 

6 A. R. 
2 A. R. 

7 A. R. 

5 A. R. 

1 A. R. 

2 A. R. 
4 A. R 



Battle V. Corporation Mobile, 9 A. R 

, Gillespie v. 15 A. R. 

, State V. 7 A. R. 

, Vandyke v. 1 S. 

Baylor v. McGregor, 5 P. 
~ V. , 1 S & P. 

1— D 



205 
422 
232 
540 
462 
106 

29 
179 
305 
481 
161 
401 
688 
266 
277 
347 
109 
274 
486 
471 
512 
255 
951 

44 
390 
761 
110 
352 
670 
707 
689 
432 
550 
544 
529 
303 
480 
160 

99 
376 
390 
668 
342 
462 
199 
697 
451 
129 
173 
126 
415 
305 
234 
276 
259 
218 
103 
158 



Baylor v. Scott, 
Bayles, Bradford v. 
Bazemore v. Wilder, 
Beal, Blann v. 

— , Chiles V. 

, Mordecai v. 

V. Snedicor, 

V. Wainwriglit, 

Beall V. Bearing, 

V. Ledlow, 

V. Williamson, 



Bean v. Cabbaness, 

■ V. Pearsall, 

Richardson, 



2 P. 315 

8 A. R. 865 

10 A. R. 773 

5 A. R. 357 
3 A. R. 26 

8 P. 529 
8 P. 523 

6 A. R. 156 

7 A. R. 124 
14 A. R. 523 
14 A. R. 55 

6 A. R. 343 
12 A. R. 592 

5 P. 27 
Beard v. Br. Bank at Mobile, 8 A. R. 344 
V. Childress, 4 A. R. 411 

, Puryear v. 14 A. R. 121 

V. White, 1 A. R. 436 

, V. 5 P. 94 

I S. & P. 247 

11 A. R. 743 
4 A. R. 178 

3 P. 385 

II A. R. 20 
2 A. R. 703 

9 A. R. 780 
8 P. 49 

8 A. R. 909 
5 P. 166 

7 A. R. 71 
12 A. R. 720 

1 S. 318 

Beddo V. Smith, M. 397 

Beene v. CahawbaR.R. Co., 3 A. R. 660 



Beasley, Marsterton v. 
Beason v. Riddle, 
Beatty v. Holloway, 
Beavers, Robertson v. 
V. Smith, 



Beazley, Little v. 
V. Mitchell, 



Bebee, Gazzam v. 
, Kennedy v. 



Beck, Lucy v. 
v. Simmons, 



Beckwith v. Baldwin, 
, State V. 



Phillips V. 

, Saltmarsh v. 

Beeson, Roberts v. 
Belcher, Cherry v. 
Bell, Coalter v. 

V. Crosby!^ 

V. Ellis, 



16 A. R. 720 
4 P. 283 
4 P. 164 

5 S. & P. 133 

2 S. & P. 358 
4 A. R. 575 

1 S. & P. 294 



V. Heirs of Robinson, 1 S. 193 



V. Hogan, 

V. 

V. Horton, 

Huntington v. 

Jordan v. 

Kennon v. 
V. Killcrease, 
V. Iving,_ 
V. Lamkin, 
V. Mason, 
V. Moore, 

V. 



V. Owen, 
V. Payne, 
V. Pharr, 
V. Real Estate Banking 

Co., 3 A. R. 



1 S. 536 
4 S. & P. 286 

1 A. R. 413 

2 P. 51 
8 P. 53 

M. 98 
11 A. R. 685 
8 P. 147 
1 S. & P. 460 
10 A. R. 334 
9 A. R. 823 
13 A. R. 
8 A. R. 
2 S. 
7 A. R. 



469 
312 
414 

807 



77 



XXVI 



TABLE OF CASES. 



Bell, Reynolds v. 

v. Rhea, 

— ' , State V. 

V. Thomas, 

Bender v. Graham, 

Y. Reynolds, 

Benford v. Daniels, 

v. Gibson, 

Benham, EdAvards v. 

— , Goodman v. 

, Savage v. 

Bennett v. Armstead, 
V. Black, 



-, Childress v. 
-, Haley v. 

- V. Hubbard, 

- V. Morris, 

- V. Robinson, 
Toulmin v. 



Benson v. Campbell, 

, Gale V. 

Bentley v. Wright, 
Berg, ex parte, 
Berry v. Carter, 

V. Hardman, 

, Lathan v. 

-, Williams v. 



3 A. R. 57 

1 A. R. 83 

5 P. 365 

8 A. R. 527 

M. 269 

12 A. R. 446 

13 A. R. 667 

15 A. R. 521 

2 S. & P. 147 

16 A. R. 625 

11 A. R. 49 
3 A. R. 507 

1 S. 39 

1 S. 494 

10 A. R. 751 

5 P. 452 
M. 270 

9 P. 171 
3 S. & P. 227 

3 S. & P. 220 

6 P. 455 
3 A. R. 234 
3 A. R. 607 

14 A. R. 516 
^ 4 S. & P. 387 

12 A. R. 604 
1 P. 110 

3 S. & P. 284 
Berryman v. Judge of County 

Court, 9 A. R. 455 

Best, Allen v. 6 A. R. 234 

Bethany, Kirkpatrick v. 1 A. R. 201 
Bethea, Gregg v. 6 P. 9 

V. McCall, 3 A. R. 449 

V. , 5 A. R. 308 

Y. Taylor, 3 S. 482 

Bettis V. Nicholson, 1 S. 349 

v. Taylor, 6 P. 333 

Y. , 8 P. 564 

Betts Y. Blackwell, * 2 S. & P. 373 

Y. Brown, 5 A. R,. 414 

Y. HuntsYille Bank, 3 S. 18 

BeYill, Field v. 12 A. R. 608 

, Ward Y. 10 A. R. 197 

Bevin y. Goodman, M. 90 

Bezzell v. White, 13 A. R. 422 

Bibb, Ellis V. 2 S. 63 

, Hobbs V. , 2 S. 54 

, Lewis V. 4 P. 84 

Y. McKinley, 9 P. 636 

Y. Reid, 3 A. R. 88 

, Y. 5 A. R. 281 

, Stone Y. tJA. R. 100 

, Wyatt Y. 4 S. & P. 391 

Bickerstaff y. Patterson, 3 P. 245 

Bierne v. Steamer Triumph, 2 A. R. 738 

, Gaines v. 3 A. R. 114 

Bigelow. De Witt y. 11 A. R. 480 
, IMintcr V. 9 P. 481 



Bigger y. Hutchings, 
Billings, Morgan v. 
Reese 



Billinslea v. Abercrombie, 
Billingsley y. Harrell, 

, Huckabee v. 

, Mag-ee v. 



Binford, Hilliard v, 
Bingham y. Rushing, 

Y. Smith, 

, AVetumpka 

Co. V. 
Birch V. Tillotson, 
Bird, Comelander v. 

— Y. Daniel, 

Morrow v. 



2 S. 445 
3 A. R. 172 
9 A. R. 263 

2 S. & P. 24 
11 A. R. 775 
16 A. R. 414 

3 A. R. 679 
10 A. R. 977 

R. 403 
R. 651 



R. 



Birdwell v. Bowlinger, 
Bishop Y. Bishop, 
, Bradford v. 



5 A. 
5 A. 
Road 

5 A. 
16 A. 
11 A. 

9 A. 

6 A. 

5 
13 A. 



R. 657 

R. 387 

913 

302 

834 

86 



V. Cox, 
, Dade v. 
, Gayle y. 

Y. Hampton, 



14 A. 
11 A. 

15 A. 



, Hill Y. 

, Pettigrew v. 

Bisquay v. Jeunelot, 
Bissell V. Carville, 
Lindsay, 



Bissent, Mann v. 
Black, Bennett v. 



V. Everett, 

, Meek v. 

V. Oliver, 

v. Richards, 

Blackburn v. Baker, 



, Gajde v. 

Blacknijin v. Branch Bank at 



R. 
R. 
R. 
P. 

R. 475 
14 A. R. 517 
16 A. R. 769 
M. 204 
M. 263 
R. 552 
R. 254 
R. 761 

2 A. R. 320 

3 A. R. 440 
10 A. R. 245 

6 A. R. 503 
9 A. R. 162 

4 A. R. 731 

1 S. 494 

1 S. 39 

5 S. & P, 

4 S. & P, 

1 A. R 

2 S. & P 

7P 

1 A. R 

5 A. R. 417 
1 S. 429 



60 
374 
449 
338 
284 
173 



Mobile, 

Y. Smith, 

Blackmon v. Blackmon, 
Blackstone v. State, 
Blackwell, Betts v. 

Y. Meneese, 

, State v. 

: — , Thomason v. 

v. Thompson, 

v. Vastbinder, 

Blair v. Asbury, 

, Barnes v. 

v. Cleveland, 

, P. & M. Bank v. 

V. Rhodes, 

Blakeny v. Blakeny, 
, Smith V. 



8 A. R. 103 

8 A. R. 203 

16 A. R. 633 

15 A. R. 415 

2 S. & P. 373 

5 S. & P. 397 

■ 9 A. R. 79 

5 S. & P. 181 

2 S. & P. 348 

6 A. R. 218 

4 P. 435 

16 A. R. 71 

1 S. 421 

4 A. R. 613 

5 A. R. 648 

6 P. 109 
8 P. 128 



TABLE OF CASES. 



XXVll 



Blakesley, Frierson v. 3 S. 

Blakey v. Blakey, 9 A. R. 

Blann v. Beal, "^ 5 A. R. 

■ — V. Chambliss, 9 P. 

V. Grant, 6 A. E. 

Blevins v. Bank at Decatur, 6 A. R. 



Cole, 
V. Pope, 
Briggs, 



Blick V. 
Bliss V. Smith, 

V. Watkins, 

T. Winston, 

Blocker v. Burruss, 

, Hartwell v. 

, Trotter v. 

— , State V. 

Bloodgood, Aikin v. 

y. Cammack, 

— ' , Cook V. 

, Cullum V. 

, Hartley v. 

— . , McVay v. 

■ V. Smith, 

Blount V. Traylor, 
Blow, Craig v. 
Blythe, Madden v. 
Boardman v. Ewing, 

V. Gore, 

, Inge v. 

V. Poland, 

Board Eng'rs, Leonard v. 

V. Miller, 

, Walker v. 

Boaz, Elliott v. 



1 A. R. 
7 A. R. 

6 A. R. 
1 A. R. 

16 A. R. 

1 A. R. 

2 A. R. 
G A. R. 

6 P. 

14 A. R. 
12 A. R. 
5 S. & P. 

7 A. R. 

15 A. R. 

16 A. R. 
9 

14 A. 
4 A. 



3 S. 



Bobo, McMekin v. 

V. Thompson, 

:Boddie v. Ely, 
, Hill Y. 



Bogan V. Martin, 
Boggs V. Bandy, 

V. B. B. at Mobile, 12 A. R. 

V. , 10 A. R. 



P. 
R. 
R. 

3 8. 
7 P. 
&P. 

1 S. 
2 A. R. 

2 P. 
10 A. R. 

9 A. R. 
14 A. R. 

9 A. R. 
13 A. R. 
12 A. R. 
3 S. & P. 

3 S. 
2 S. & P. 

8 A. R. 
2 S. 



Clark V. 
Evans v. 



Bohannon v. Chapman, 

T. Springfield, 

V. Watts, 

Boiling V. Carter, 
, Evans v. 



6 A. R. 
M. 

13 A 
9 A 

14 A 
9 A. 



V. Logan, 
Lyon V. 

V. 



V. Wright, 

Bolton, Wright v. 
Bond V. Hills, 
V. Smith, 



5 A 

4A 

9 A. R 
14 A. R 
16. A. R 

8 A. R 
3 S 

8 A. E 

2 A. R 



267 
391 
357 
412 
110 
377 
210 
371 
687 
273 
229 
344 
354 
581 
269 
450 
221 
276 
683 

34 
233 
547 
423 
667 
448 
258 
293 
517 
331 
431 

52 
511 
228 
772 
535 
268 
385 
182 

56 
807 
459 
494 
970 
809 
354 
641 
789 
574 
921 
546 
550 
169 
463 
753 
664 
548 
283 
386 
660 



Bondurant v. Buford, 

^ V. Lane, 

: V. State Bank, 



Thompson, 
V. 



V. Woods', 

Bonneau v. Dickinson, 
Bonner v. Greenlee, 
Bousadon, Miller v. 
Booker, Allen v. 

V. Jemison, 

V. Lowi'y, 

Booth V. Comegys, 
-, — V. 



IMorris v, 



Boozer, Pvowland v. 
Boraim, Da Costa v. 
Boran v. Chisholm, 

M'Gehee, 



Boring, Huffaker v. 
Borland, Darrington v. 

V. Mavo, 

— , P.&M. Bankv. 

V. Phillips, 

V. Walker, 



Borum v. Garland, 
Bostick,, Clark v. 

, Kyle V. 

V. Purdy, 



Boswell V. Tunnell, 
Bothwell V. Hamilton, 
, Watson V. 



Botts V. Armstrong, 
V. Bridges, 



Boughton V. Spear, 
Bonier, Doyle v. 
Bourne v. State, 
Bowen v. Snell, 



-, State V. 



Bovver, Peters v. 
Bowie, Cuthbertv. 

V. Foster, 

. Minter, 



Bowles, Ragsdale v. 
Bowlinger, Birdwell v. 
Bowling v. Bowling, 
Bowman v. Gary, 
Boyce v. Holmes, 
Boyd V. Barclay, 

, Collins v. 

V. Dennis, 

, Easly V. 

V. Gilchrist, 

, Hayden v. 

, Isaacs V. 

, Key V. 

V. Martin, 



15 A. 
15 A. 

1 A. 
12 A. 

6 A. 
9 A. 



1 A. R. 359 

9 P. 484 
5 A. R. 171 

7 A. R. 830 
R. 202 
R. 346 
R. 543 
R. 475 
R. 411 
R. 317 

2 S. 21 
4 A. R. 408 
1 A. R. 399 

M. 201 

3 S. 14 

8 A. R. 907 
10 A. R. 690 

4 A. R. 393 
3 A. R. 513 

6 P. 432 
8 A. R. 

3 P. 

8 A. R. 

5 A. R. 
3 A. R. 

7 A. R. 

9 A. R. 452 
2 S. & P. 66 
10 A. R. 589 
5 S. & P. 105 

10 A. R. 958 

8 A. R. 461 

11 A. R. 

8 P. 

4 P. 



87 

9 

104 

531 

718 
269 



650 

57 

274 



4 A. R. 257 
7 A. 



9 A, 

11 A, 

6 A, 

10 A 

2 A. 

16 A. 



R. 
; P. 
R. 
R. 
R. 
M. 
R. 



246 

458 

481 

379 

511 

69 

163 

M. 264 

R. 406 

R. 62 

5 P. 86 

8 A. R. 538 

M. 326 

2 A. R. 54 

1 A. R. 34 

14 A. R. 505 
6 A. R. 55 

12 A. R. 684 

15 A. R. 849 
8 A.R. 323 

5 P. 388 
10 A. R. 154 
10 A. R. 700 



xxvni 



TABLE OF CASES. ' 



Boyd, McCord v. 

, McCrory v. 

V. Mclvor, 

V. Mynatt, 

, Shaw V. 

— — — , Shearer v. 

, Spanrr v. 

■ V. Taliaferro, 

, Thomason v. 

, Whitehurst v. 

Y. Woodfin, 

Boyington v. State, 

Boyett V. Kerr, 

Boykin, Br. B. at Mobile 

, Caller v. 

, Gary v. 

, Tarverv. 

Bozman v. Draughan, 

V. Gilbert, 

Bradford, Allen v. 

, Abercrombie v. 

V. Bayles, 

V. Bishop, 

, V. 

V. Bush, 

V. , 

■ V. , 

V. Dawson, 



, Everly v. 

, Freeman V. 

, Gilbert V. 

V. Goldsborough, 

V. Haggerthy, 

' T^' 

, Harris v. 

V. Hilliard, 

, Lewis V. 

V. Marbury, 

, Moore v* 

, Nesbit V. 

, Norris v. 

, Rathbone v. 

, Reese v. 

, Rosser v. 

— , Sawyer v. 

, Scott V. 

V. Stewart, 

, Ware v. 

Bradley v. Gibson, 

Bradshaw v. Garrett, 

Brady, Monroe v. 

Bragg V. Channell, 

, Lynch v. 

, Moffitt V. 

V. Nail, 

Brahan v. Collins, 

V. Debrell, 

y. Johnson, 



12 A. R. 

3 S. 

11 A. R. 

14 A. R. 

4A. R. 

I S. & P. 
10 A. R. 

2S. 

13 A. R. 

13 A. R. 
• 8 A. R. 

o. 

2 P. 
7 A. R. 

V. 9 A. R. 
M. 

7 A. R. 
6 A.R. 

3 S. 

1 A. R. 

3 A.R. 
16 A. R. 

8 A.R. 

14 A. R. 
16 A. R. 
10 A. R. 
10 A. R. 

15 A. R. 

2 A.R. 
4 A. R. 

5 P. 
15 A.R. 
15 A. R. 

II A. R. 

9 A. R. 

4 A.R. 

1 P. 

8 A. R. 

12 A. R. 

3 A.R. 
6 A. R. 

4 A. R. 

1 A. R. 

13 A. R. 

9 P. 

6 A. R. 

5 P. 
M. 

2 A.R. 

9 A.R. 

IP. 

7 A.R. 

3 A.R. 

13 A. R. 

9 P. 

14 A. R. 

M. 

1 S. 

M. 



760 
279 
822 
593 

79 

83 
279 
480 
424 
419 
375 
357 
100 
9 
320 
206 
154 
353 
243 

90 
281 
560 
865 
517 
769 
274 
386 
317 
203 
371 
270 
769 
311 
698 
567 
214 

13 
632 
520 
550 
746 
203. 
312 
837 
354 
572 
443 

44 
676 
406 

47 

59 
275 
773 
424 
619 
169 

14 
382 



Brahah v. Johnson, 

T. Pope, 

V. Ragland, 



1 S..189 
IS. 135 

M. -85 

3 S. 247 

2 S. 500 
Branch; Taylor v. 1 S. & P. 249 
Brandon v. Bankof Huntsville, 1 S. 320 



-, Weakley v. 



V. Cabiness, 

, Pope V. 

— V. Snows, 

Branham, Wilkei'son v. 
Brannan v. Oliver, 
Brantley, Rice v. 
Brashear, Gilbert v. 

V. Williams, 

Brasher, Hosey v. 

V. Lyle, 

-Reed v. 



Brassfield, Pierce v. 
Brazeal v. Brazeal, 

, Phillips V. 

V. Smith, 

, Watson V. 



Brazier v. Fortune, 



V. King, _ 

, Mason v. 

' V. Tarver, 

Breck, Swansey v. 
Breed, McBarnett v. 
Breedlove, Robertson v. 
Brewer v. Morgan, 

V. Strong, 

Brewster v. Buckholts, 
Pinkston v. 



Briant, Casey v. 
Bridges, Botts v. 

-:t , Evans v. 

, Hill V. 

V. MiUer, 

Briggs, Blick v. 

, Dickson v. 

V. Greenlee, 

V. Hobson, 

V. Moore, 



Bright, Anderson v. 

, Tindall v. 

v. Young, 



Briley v. Hodges, 

, State V. 

Brinyea, State v. 
Bristow V, Jones, 
Britt V. Burk, 
B'rittain, Caller v. 



10 A. R. 155 
2 S. 401 

2 S. 255 
5 A. R. 608 

2S. 47 

5 A. R. 184 

12 A. R. 191 

10 A. R. 630 

8 P. 559 
A. R. 524 

3 P. 
3 P. 
7 P. 

9 P. 
A. R. 



13 



375 
378 
448 
438 
573 



9 

9 A.R. 491 
14 A.R. 746 

5 A. R. 206 
7 A. R. 451 

10 A. R. 516 

10 A. R. 791 

16 A. R. 730 

1 A. R. 635 

4 A. R. 569 
■10 A. R. 533 

6 A. R. 476 

7 P. 541 

13 A. R. 551 
10 A. R. 961 

3 A. R. 20 

14 A.R. 315 
1 S. & P. 51 

4 P. 274 

4 P. 348 

6 P. 197 

3 A. R. 746 

6 A. R. 687 
12 A. R. 217 

M. 123 

3 A. R. 404 

.14 A. R. 433 

14 A. R. 700 

15 A. R. 24 
12 A. R. 478 

M. 103 

15 A. R. 112 

3 P. 335 

8 P. 472 

5 A. R. 241 
1 A. R. 159 

7 A. R. 588 

M. 27 



TABLE OF CASES. 



XXIX 



Brittain, Goading y. 
Broadnax, Arthur y. 

V. Sims, 

■ , Stephens v. 

Brock V. Cook, 

v. Headen, 

v. Youngue, 

' V. , 

Brogden, Baldwin v. 
Brooks, Anderson v. 
- — - — , Bass V. 

, Oarmichael a 

V. Godwin, 

, Goodwin v. 

V. Harris, 

V. Harrison, 

V. Maltbie, 

, Mead v. 

, Parks V. 

, State V. 

Williamson 



Brookshire, Landrum y. 
, State y. 



I S. & P. 

3 A. R. 
8 A. R. 

5 A. R. 

3 P. 
13 A. R. 

4 A. R. 

7 A. R. 

2S. 

II A. R. 

IS. 
9 P. 

8 A. R. 

6 A. R. 

12 A. R. 

2 A. R. 
4 S. & P. 

8 A. R. 
16 A. R. 

9 A. R. 

3 A. R. 

IS. 
2 A. R. 
10 A. R. 

13 A. R, 
13 A. R 



Broome v. King, 
Broughton, Adams y. 

-, Banks y. 

, Br. B. at Mobile y. 10 A. R. 

, Montgomery y. 15 A. R. 

, Colburn y. 9 A. R, 

V. Governor, 7 A. R. 

y. Mcintosh, T A. R. 

y. Robinson, 11 A. R. 

V. State Bank, - 8 P. 

Browder y. State, 9 A. R. 

Brown y. Adair, 1 S. & P. 

V. Adams, 1 S. 

y. Bailey, 4 A. R. 

y. Baker, 9 p. 

y. Barnes, 6 A. R. 

y. Bartlett, 2 A. R. 

y. Bates, 10 A. R. 

, Betts V. 5 A. R. 

y. Brown, 5 A. R. 

V. , 13 A. R. 

, Cabiness v. M. 

V. Chambers, 12 A. R. 

y. Easly, 10 A. R. 

, English V. 9 A. R. 

V. Foster, 4 A. R. 

, Gainesville Acade- 
my V. 3 A. R. 

; Greening v. M. 

, Hale V. 11 A. r! 

V. Hay, 1 S. & P. 

y. Hemphill, 9 P. 

, Henly y. l s. 

y. Hunt, 4 A. R 

y. Isbell, 11 A. R. 

, V. 13 A. R 



282 
557 
497 
258 
464 
370 
584 
64 

9 
953 
44 
330 
296 
836 
555 
209 
96 
840 
529 

9 

32 

252 

303 

819 

731 

731 

147 

127 

351 

561 

103 

922 

48 

58 

49 

51 

413 

503 

694 

29 

432 

414 

508 

208 

41 

697 

564 

504 

282 

326 

353 

87 

102 

.206 

.144 

. 129 

1009 

.383 



Brown y. Jones, 

y. Lang, 

• y. 



— y. Levins, 

— v. Lipscomb, 

— v. Little, 
— , Long y. 
— , Madox y. 

— v. Massey, 

— y. M(jLane, 
— , Owen v. 
— , Perry v. 
— , Rembert y. 

— y. Simpson, 
— , State y. 

— v. Steele, 

— , Talliaferro r. 
— , Thomas v. 

— y. Torver, 

— V. Turner, 
— y. 



, Weed y. 

y. Wheeler, 

, Woods y. 

, y.^ 

Browning v. Grady, 
Lees V. 



Brownrigg, Frazer y. 
, Roberts v, 



Bruce y. Edwards, 
Brumby, Carroll y. 
y. Langdon, 



Smith, 



Bryan, Lee v. 

y. Moore, 

Bryant v. Craig, ^ 

, Cravens v, 

y. Ingraham, 

v. Owen, 



V. Peters, 

, Powers y. 

v. Simpson, 

V. Stearns, 

, Williams v. 

Buchanan, Dade v. 

, DufFee v. 

, Toulmin v. 

Buck, McRae v. 
Buckholts, Brewster v. 
Bucks, King v. 
Buford, Bondurantv. 

, Mann v. 

, Sheppard v. 

, Weir v. 

v. Welborn, 

Bullard, LoAvnsberry v. 



3 P. 429 

4 A. R. 50 

14 A. R. 719 

6 P. 414 

9 P. 472 

9 A. R. 416 

4 A. R. 622 

9 P. 118 

3 S. 226 

M. 208 

2 A. R. 126 

M. 55 
14 A. R. 360 

3 S. 331 

4 P. 410 

14 A. R. 63 
11 A. R. 702 

1 S. 412 
M. 370 

15 A. R. 832 
9 A. R. 866 

11 A. R. 752 
13 A. R. 449 

3 A. R. 287 
8 A. R. 742 

8 A. R. 563 
10 A. R. 999 

15 A. R. 495 
10 A. R. 817 

9 A. R. 106 

IS. 11 

13 A. R. 102 

10 A. R. 747 

7A. R. 53 

3 A. R. 123 

3 A. r; 278 

M: 377 

12 A. R. 354 
3 A. R. 278 

16 A. R. 116 
2 S. & P. 134 

1 P. 201 

3 A. R. 160 

7 P. 9 

3 S. 339 

16 A. R. 302 

4 A. R. 44 

M. 415 

8 A. R. 27 

IS. 67 

2 S. & P. 155 

3 A. R. 20 

11 A. R. 217 

1 A. R. 359 

3 A. R. 312 

7 A. R. 90 

8 A. R. 134 
6 A. R. 818 

M. 315 



XXX 



TABLE OF CASES. 



Bullard V. Young, 

, Wheeler v. 

Bullock V. Governor, 

, Holmes v. 

V. Malone, 

V. Ogburn, 

V. Perry, 

, State V. 

V. Wilson, 



Bumpass v. Ilarralson, 
V. liichardson, 

V. Webb, 



Bunnell v. Magee, 
Burden, Ellis v. 

, Treadwell v. 

Burdine v. Maltbie, 

— • V. Roper, 

Burford v. Cunningham, 
Burge, Fleming v. 
Burgess, IloUey v. 

V Suo'ov 



Burgster, Ferryman v. 



Burke v. Adkins, 

, Bvitt V. 

V. Jones, 

, Madison College 

, Nicholson v. 

( , Ptoberts v. 

Burnett v. Handle^-, 

, Johnston v. 

V. Maxey, 

, Patterson v. 

, Perdue v. 

■ V. Stanton, 



46 
352 
484 

228 
400 



3 S. 
6 P. 
2P 

4 A. R. 
M, 

13 A. R. 346 

2 S. & P. 319 

13 A. R. 

2 P. 

, 3 P, 

5 P. 

BI. 

1 S, 

1 s. 

4 p. 
3 A. R. 

9P, 

9 A 



413 

436 

382 

338 

162 

16 

19 

65 

109 

201 

R. 433 

R. 458 

R. 660 

417 

466 

244 

373 

728 

341 



1 A, 

8 A. R, 
3 S. & P. 

7 A. R 
2P 

6 A. R, 

9 A. R, 
2 S. & P, 

2 S. 509 

,4 P. 505 

6 P. 99 

2 P. 236 

7 A. R. 588 
13 A. R. 167 

. 6 A. R. 494 

15 A. R. 353 

6 A. R. 348 

8 A. R. 
12 A. R, 

9 P, 



, State v. 

V. Thompson, 

Burns, Andrews v. 

, Cave V. 

, Darden v. 

V. Hindman, 



685 
743 
410 



6 A. R. 844 





M. 


138 


2 A 


R. 


181 


2 A. 


R. 


195 


2 A. 


R. 


140 


1 A. 


R. 


469 


11 A. 


R. 


091 


6 A. 


R. 


780 


6 A. 


R. 


362 


7 A. 


R. 


531 



Burns v. Minter, 

V. State, 



, Strickland 

V. Taylor, 

Burroughs, Pitts v. 
V. Wright, 



Burruss, Blocker v. 
Burt V.' Cassety, 

V. Henry, 

V. Hughes, 

• ■ — V. Kimbell, 

, Mitchell V. 

V. Parish, 

, Wright V. 

Burw,ell, Orr v. 

V. Springfield, 



Bush, Barney v 

, Bradford v. 

-, V. 



V. 



, Chenault v 

, Looneyv. 

— -v. McGee, 

Biissey v. B.B.Montg 
Butler V. Butler, 

v. Cook, 

, Edgerly v. 

V. Foster, 

V. Johnson, 

, Leavens v. 

V. Lee, 

V. Limerick, 

V. Merchants' 



Byers 



■ V. O'Brien, 
-, Pr3'^or V. 
■, Stebbins v. 
V. Freeman, 
■, Watson V. 
Bynum v. Sledge, 
B}' rd, Cain v. ' 

V. Odem, 

Shields v. 
Case V. 
V. Haines, 
V. Hall, ■ 
, Innerarity v. 



Byrne, 



12 A. R. 

5 A. R. 

8 A. R. 

14 A. R. 
3 P. 

6 A. R. 

o A. sx. 

2 A. R. 
12 A. 

10 A. 

11 A. 
5 

9 A. 
9 A. 
5 A. 

15 A. 
15 A. 

9 A. R. 
10 A. R. 

10 A. R. 
15 A. R. 
3 S. & P. 

M. 

4 A. R. 
om'y, 15 A. R. 

11 A. R. 
14 A. R. 

3 P. 
14 A. R. 

10 A. R. 
8 P. 

11 A. R. 
M. 

I. Co., 8 A. R. 

14 A. R. 

5 A. R. 
9 A. R. 

M. 
IP. 

6 A. R. 
1 S. & P. 

1 S. 
9 A. R. 

15 A. R. 

12 A. R. 

M. 
1 S. 
8 P. 



316, 
227 
313 
511 
187 
733( 

43 
354 
734 
874 
571 
137 
226 
211 

29' 
378 
273 
345 
274 
386 
317 
342 
413 
710 
216 
668 
576 
344 
323 
459 



115 
146 
777 
316 
418 
121 
478 
393 
135 
189 
755 
818 
115 
286 
17 
176 



c 



Cabiness, Bean v. 

, Brandon v. 

V. BroAvn, 

, Chilton V. 

, Deshler v. 

, King V. 

, Mullins V. 



6 A. R. 


343 


10 A. R. 


155 


M. 


41 


14 A. R. 


447 


10 A. R. 


959 


12 A. R. 


598 


M. 


2r 



Cabiness, Snodgrass v. 

Cage, Cobb v. 

Cahawba R. R. Co., Beene v 

-, Carlisle v. 

-, Gayle v. 

, George v. 

. . Pool V. 



15 A. R. 160 

7 A. R. 619 

3 A. R. 660 

4 A. R. 70 

8 A. R. 586 
8 A. R. 234 

5 A. R. 237 



TABLE OF CASES. 



XXXI 



Cahawba 



Navigation 
Duke V. 



Co. 



Cain V. Byrd, 

Y. Mather, 

, Salter v. 

V. Sullivan, 



10 A. R. 
16 A. R. 

1 S. 

3 P. 

7 A. R. 

M. 



Edwards, 

: V. Gillis, 

: V. Harrison, 

• V. Kirkpatrick, 

, Lovely v. 

■ V. May 

Vj Meador, 

, Neale v. 

Y. State, 

Y. Thorp, 

V. Wallace, 

Calhoun v. Cozens, 



Caldwell y. B. B. atMobUe, 11 A. R. 
5 S. & P. 

2 P. 
11 A. R. 

6 A. R. 

4 A. R. 

1 S. 
4A. R. 

3 S. 
IS. &P. 

8 A. R. 

4 S. & P. 
3 A. R. 
3 A. R. 

5 A. R. 

4 P. 
11 A. R. 

5 A. R. 
1 A. R. 

2 S. & P. 

M. 

M. 

2S. 

M. 

M. 

M. 

2 S. & P. 

8 A. R. 

2 P. 

2 P. 

10 A. R. 
3 A. R. 
•6 A. R. 

8 A. R. 

11 A. R. 
3 A. R. 

14 A. R. 

15 A. R. 

6 A. R. 
6 A. R. 

5 S. &P. 
6 P. 

11 A. R. 

13 A. R. 

6 P. 

3 S. 
9 P. 

M 

8P 

IS. 

1 A. R. 

4 P. 



Y. King, 

v. Lunsford, 

, McCartney y. 

Callahan, Barker y. 

v. McAlexander, 

Y. State, 

Caller v. Boykin, 

— v. Brittain, 

-• , Carrington y. 

Y. Dade, 

Y. Denson, 

, Haley v. 

Y. Shields, 

Y. Vivian, 

Callison v. Lemons, 

Y. Little, 

Calloway v. Carpenter, 

Y. McElroy, 

Calvert v. Marlow, 

■ — , Wilson Y. 

Cameron y. Clarke, 

^Y. Nail, 

Y. State, 

Y. , 



V. Stollenwerck, 

Camfield, Crawford v. 
Cammack, Bloodgood v. 
Campbell, Benson v. 

Y. Campbell, 

, Cocke V. 

-, Couch Y. 

, Davis v. 

, Fisher v. 

Y. Green, 

, Hagan v. 

. , Huff V. 

■ , Kimmey v. 

, Lee V. 



82 
372 
189 
224 
478 

31 
549 
312 
526 
755 

60 
684 
425 
755 
134 
327 
253 
282 

21 
498 
523 
345 
110 
708 
366 
379 
206 

27 
175 

20 

19 

63 
417 
903 
145 

89 
500 
406 
337 
757 
259 
158 
546 

o8o 

704 
153 
276 
455 
730 
280 
262 
319 
210 
. 30 
. 9 
543 
92 
198 



Campbell, Lee v. 

V. Longworth, 

, Morrow v. 

, Patterson y. 

, Quigley v. 

v. 
V. Spence, 
v. State, 
V. Woodcock, 



, Wyatt V. 

, Wyman v. 

Camp v. Camp, 

Y. Forrest, 

— , V. 



V. Hatter, 

, N^abors v. 

, Saunders v. 

v. Watt, 

Canfield, Sims v. 
Cannon v. Logan, 

, Hall V. 

Williams v. 



Canterbury v. Hill, 
Watkins v. 



Cantley y. Hopkins, 

V. Moody, 

Caperton v. Martin, 
Capps, Sally v. 
Capshaw v. Fennell, 
Caraway, Gildersleeve y. 
Y. Wallace, 



Carew v. N"orthrup, 
Cargill v. Walker, 
Carlisle v. Cahawba R. R. 
Y. Davis, 



V. Gray, 

— Y. Hill, 

Y. Hunley, 

Caidos Y. Ansley, 
, V. 



Carlton v. Banks, 

Y. Fellows, 

V. King, 

, Randolph v. 

•, "W'aters v. 

Carmack v. Masterson, 
Carmick, James v. 
Carmichael v. Brooks, 
Carnes, Snedicor v. 
Carothers, Luckie y. 
Carpenter, Calloway v. 

, Cunningham v. 

v. Devon, 

, Garrow y. 

, — ^ V. 



v. Jeter, 



6 P. 249 

3 S. & P. 343 

7 P. 41 
9 A. R. 933 

5 A. R. 76 

12 A. R. 58 

4 A. R. 543 
16 A. R. 144 

2 A. R. 41 

2 P. 456 

M. 390 

6 P. 219 
2 A. R. 632 

13 A. R. 114 
16 A. R. 642 

11 A. R. 151 

14 A. R. 460 

6 A. R. 73 

14 A. R. 616 
2 A. R. 555 

5 P. 77 

9 P. 274 

9 A. R. 348 

4 S. & P. 224 

4 P. 415 

5 S. & P. 58 

7 P. 443 

5 A. R. 217 

1 A. R. 121 

12 A. R. 780 
10 A. R. 260 

2 A. R. 542 

5 A. R. 367 
1 S. & P. 223 
Co, 4 A. R.70 

9 A. R. 858 

7 A. R. 42 

6 A. R. 707 
10 A. R. 302 
16 A. R. 398 

15 A. R. 623 

8 A. R. 900 

9 A. R. 973 

7 A. R. 32 

13 A. R. 437 
1 S. & P. 472 

8 A. R. 606 

4 P. 205 

3 S. & P. 411 

M. 20 

9 P. 330. 

8 A. R. 655 

5 A. R. 290 
10 A. R. 500 
10 A. R. 109 

6 A. R. 718 

4 S. & P. 336 

1 P. 359 
4 S. & P. 32(> 



XXXll 



TABLE OF CASES. 



Carpenter v. Lewis, 

, Magee v. 

Carr, Ililliarcl v. 

, Hogan V. 

, Kenan v. 

' , Marston v. 

Carriel, Fuqua v. 
Carrington v. Caller, 

V. Manning, 

Carroll v. Brumby, 

V. Mayor of Tusk'a, 

V. Meeks, 

V. Moore, 

V. Pathkiller, 

, Shelton v. 

, Wesson v. 

Carson v. Barnes, 

, Gibson v. 

, Read v. 

V. State Bank, 

-. , Thorington v. 

Car swell, Craig v. 
Carter, Abney v. 

, Berry v. 

, Boiling V. 

V. Castleberry, 

V. Crews, 

V. Dade, 

V. Darby, 

V. Douglass, 

, Dunham v. 

V. Garrett, 

, Harris v. 

— V. Hinkle, 

• , Huggins V. 

V. Manning, 

Y. Mercer, 

V. Mundy, 

V. Penn, 

V. Pickard, 

Caruthers v. Mardis, 
Carville, Bissell v. 

V. Reynolds, 

Y. Stout, 

Carwile v. House, 
Cary y. Gregg, 
Case V. Byrne, 
Casey v. Briant, 

Y. Cleveland, 

, Cullum Y. 



V. Holmes, 

Y. Pratt, 

, Taylor y. 

, White Y. 

Caskaden, Channing v- 

, Mullary v. 

Caskey v. Haviland, 
V. Nitcher, 



6 A. R. 682 

4 A. R. 469 

6 A. R. 557 

6 A. R. 471 

10 A. R. 867 

16 A. R. 325 

M. 170 

2 S. 175 
13 A. R. 611 
13 A. R. 102 
12 A. R. 173 

3 P. 226 
A. R. 615 

3 P. 279 
A. R. 148 
M. 251 
R. 93 
R, 
M, 
R, 



4 A. 
1 P. 

4 S. & P. 



421 

17 

148 

257 
267 



3 A. R. 715 



4 S. & P. 

9 A. R 

5 A. R. 

2 P. 

IS. 

15 A. R, 

2 A. R. 499 

2 S. 496 
13 A. R. 728 

3 S. 233 
13 A. R. 529 



387 
921 

277 
81 
18 

696 



R. 630 
R. 851 
R. 556 
R. 132 
R. 140 



7 A 

7 A 
9 A. 

12 A. 
4 A. 

11 A. R. 673 
3 A. R. 599 
6 A. R. 503 
9 A. R. 969 

10 A. R. 796 

6 A. R. 710 

3 S. 433 

12 A. R. 115 
1 S. & P. 51 

7 P. 445 

9 P. 131 

1 A. R. 351 

10 A. R. 776 

8 A. R. 238 

M. 258 

4 S. & P. 212 

M. 73 

M. 20 

13 A. R. 314 
8 A. R. 022 



Y. State, 
Casly V. Gilder, 
Cass V. Northrop, 
Cassety, Burt y. 
, Harrison v. 



Castleberry, Carter v. 

■■ — V. Fennell, 

V. Pearce, 

V. , 



Castles, Ledbetter y. 
McMath, 



Cater v. Hunter, 
Cathcart, Fant v. 
Cathey, Davis v. 
Catlin V. Gilders, 
Cato Y. Easley, 

McGrev v. 



Catoe V. Harrison, 
Catterlin v. Hardy, 
Y. Spinks, 



Cauley, Jenkins v. 
Cavanaugh y. Taturo, 
Cave Y. Burns, 
Cavender y. Funderburg, 
Cawood, State y. 
Cawsey y. Driver,' 
Cawthorn v. Deas, 

v. Knight, 

v. , 



v. McCraw, 
Y. Weisinger, 



Central Bank Ga., Mims v 
Chadwick, Hughes v. 
Chamberlain v. Bates, 

v. Darrington, 

-, Myrick y 



Chambers, Brown v. 

v. Ma«ldin, 

, State v. 

Y. Stone, 

Chambliss, Blann v. 
Chandler, Abercrombie v 

, Bagby v. 

, V. 



Cleveland v. 
Colbert v. 
Crawford y. 



, Eiland v. 
v. Faulkner, 

) ^"• 

, Glover v. 
, Graham v. 



, Hartley v. 

v. Hudson, 

V. Holloway, 
, Intendant Marion 

Y. Lyon, 



6 A. R. 
13 A. R. 

1 S. & P. 

12 A. R. 

M. 

5 A. R. 
4A. R. 

2 S. & P. 
5 S. & P. 

11 A. R, 
1 A. R. 
3 A. R. 

8 A. R. 

1 S. 
3 A. R. 

2S. 
M. 

3 P. 

10 A. R. 
16 A. R. 

IS. 
4 S. & P. 

6 A. R. 

9 P. 
2S. 

13 A. R. 

2 P. 

11 A. R. 

11 A. R. 

9 A. R. 
6 A. R. 

. 2 A. R. 
6 A. R. 

2 P. 

4 P. 
M. 

12 A. R. 
4A. R. 
6 A. R. 
9 A.R. 

9 P. 
9 A. R. 

8 A. R. 

9 A.R. 

3 S. 
M. 

A.R. 
A.R. 
A.R. 
A.R. 
A.R. 

11 A. R. 

12 A. R. 
15 A. R. 

6 A.R. 
8 A.R. 

4 P. 
Y. 6 A. R. 

8.A. R. 



5 
7 
8 
5 
11 



193 

322 

89 
734 
291 
277 
642 
141 
150 
149 
326 

30 
725 
402 
536 
214 
8 
219 
511 
467 

61 
204 
780 
460 
360 
818 
276 
579 
268 
519 
714 
294 
651 
550 
515 
357 
697 
477 
855 
260 
412 
625 
230 
770 
489 
254 

61 
506 
781. 
567 
725 
161 
829 
342 
857 
366 

17 
,899 
, 35 



TABLE OF CASES. 



xxxiii 



Chandler, Mahoney v. 

, McGehee v. 

V. McPherson, 

V. Shehan, 

, Tate V. 

Chaney, Cocke v. 

, ex 2Mrte, 

Channell, Bragg v. 
Channing v. Caskaden, 
Chapman v. Arrington, 

, Bohannon V. 

Y. Chunn, • - 

, Collier v. 

V. Glassell, 

V. Hughes, 

■ , Martin v. 



, Moore v. 

, Prewitt V. 

, Smith V. 

Chappeli, Lowther v. 
Charles, Murray v. 
V. State, 



■ , Williams v. 

Chaudron, Duval v. 

V. Hunt, 

V. Magee, • 

Cheatham v. Young, 
Chenault v. Bush, 

, Hall V. 

, Wagner v. 

V. Walker, 



Cherpin v. Tillotson, 
Cherry v. Belcher, 
Chester, Davis v. 
Chevers, Price v. 
Childers, Magee v. 
Childress, Beard v. 

V. Bennett, 

V. Childress, 

, Crawford v. 

, riournoy v. 

, Hutchins v. 

V. McCuUough, 

, McGehee v. 



, Meeker v. 

v. Miller, 

, Tindall V. 

, Weaver v. 

-, Windham v. 

Child, Lockett v. 

— ; V. AVofford, 

Childs V. Crawford, 

V. Franklin, 

Chiles V. Bcal, 
— , Dent V. 

1— E 



7 A. R. 732 
15 A. R. 659 
11 A. R. 916 

7 A. R. 251 
4 S. & P. 417 
14 A. R. 65 

8 A. R. 424 
3 A. R 

M. 

3S. 

13 A. R. 

5 A. R. 

2S. 

13 A. R. 

14 A. R, 

6 P. 

1 A. R. 278 

- 2 S. 466 

6 A. R. 86 

6 P. 365 
8 A. R. 353 
5 A. R. €78 

3 P. 440 

4 P. 107 

7 A. R 
10 A. R 

3 S. 

8 A. R. 



275 
73 
480 
641 
397 
163 
50 
218 
344 



202 

391 

31 

670 



5 A. R. 353 

3 S. & P. 342 

13 A. R. 710 
7 A. R. 677 

14 A. R. 151 

15 A. R. 605 

6 A. R. 638 
5 S.&P. 133 

M. 385 
9 P. 511 

6 A. R. 196 
4 A. R. 411 

10 A. R. 751 

3 A. R. 752 
l.A. R. 482 

M. 93 

4 S. & P. 

5 P. 
2S. 
M. 
M. 109 

4 A. R. 447 
2 S. & P. 250 

3 S. 361 

7 A. R. 357 

11 A. R. 640 
, 3 A. R. 564 

8 A. R. 731 
10 A. R. 79 

3 A. R. 26 

5 S. & P. 383 



34 

54 

506 

131 



Chilton V. Cablness, - 

V. Comstock, 

, Hall V. 

V. Harbin, 

, Hendricks v. 

-— V. Parks, 

V. Robbins, 

Chinnubbee v. Nicks, 
Chisholm, Boren v. 

V. Newton, 

— ■ , Standefer v. 

Chotard, Ladd v. 
Christian v. Christian, 

, Johnson v. 

V. Scott, 

V. , 



14 A. R. 44T 
4 A. R. 58 

3 A. R. 633 
6 A. R. 171 
8 A. R. 641 

15 A. R. 671 

4 A. R. 223 
3 P. 362 

3 A. R. 513 

1 A. R. 371 

1 S. & P. 449 

M. 366 

. 3 P. 350 

2 P. 201 

M. 354 

1 S. 490 

Chunn, Chapman v. 5 A, R. 397 

Cir't Judge Mobile, State v. 9 A. R. 338 
City C'l Mo'y v. Hutchinson,13 A. R. 573 



-, Murphy V. 



Clack, Pruitt v, 
Claiborne v. Harris, 
Clapp, Harris v. 

V. Mock, 

Clarissa, State v. 
Clarke v. Boggs, 

V. Bostick, 

, Cameron v. 

V. Clark, 

, Copelandv. 

, Crayton v. 

, Driver v. 

, Evans v. 

V. Field, 

V. Gaither, 

V. Gary, 

V. McElroy, 

, P. and M. Bank v. 

V. Simmons, 

, Southall V. 

V. State, 

V. Stoddard, 

V. Stringfellow, 

, Strode V. 

V. West, 

V. Windham, 

, Young V. 

Clarkson, State v. 
Clarlitko v. Elliott, 
Claunch v. Allen, 

Clay V. Dennis^ 

V. Drake, 

, Gamer v. 

, Moore v. 

Clcaland v. Walker, 
Cleaver v. Patterson, 
Clcgge, AVoodward v. 



11 A. R. 586 

9 P. 286 

11 A. R. 647 

M. 328 

8 A. R. 122 

11 A. R. 57 

6 A. R. 809 

2 S. & P. 66 
11 A. R. 259 

4 P. 9 

2 A. R. 388 
11 A. R. 787 
13 A. R. 192 

1 P. 388 

1 A. R. 468 

6 A. R. 139 

11 A. R. 98 
1 S. 147 

7 A. R. 765 
4 P. 14 

3 S. & P. 338 

12 A. R. 492 

3 A. R. 366 

4 A. R. 353 
12 A. R. 621 

5 A. R. 117 
12 A. R. 798 
16 A. R. 659 

2 A. R. 264 

3 A. R. 378 

5 P. 403 
12 A. R. 159 

7 A. R. 788 

3 A. R. 375 

M. 164 

1 S. 182 

7 A. R. 742 
11 A. R. 1058 

.14 A. R. 387 

8 A. R. 317 



XXXIV 



TABLE OF CASES. 



Clement, Dunn v. 2 A. R. 
Clements v. B. B. at Wvj, 1 A. R. 

V. Crawford, 1 A. R. 

, Dunlap V. 7 A. R. 

V. Elliott, 11 A. R. 

, V. 5 A. R. 

V. Eslava, 4 P. 

, Flournoy v. 7 A. R. 

V. Johnson, 3 S. & P. 

V. Kellogg, 1 A. R. 

V. Loggins, 2 A- R- 

, Lowry v. 9 A. R. 

V. Moore, 11 A. R. 

, V. 4 P. 

, Wooley V. 11 A. R. 

Clemens, Harkins \. 1 P. 

V. Judson, M. 

■ V. Loggins, 1 A. R. 

V. Patton, 9 P. 

• V. Prout, 3S. &P. 

Clendenning v. Ross, 3 S. & P. 
Clepper, Wyatt v. 6 A. R. 
Clerk County Court v. Ander- 
son, 11 A. R. 
Cleveland, Blair v. 1 S. 

, Casey v. 7 P. 

V. Chandler, -3 S. 

— , Burden v. 4 A. R. 

~ , Richardson v. 5 P. 

Click V. Click, M. 

, Hall V. 5 A. R. 

V. M'Afee, 7 P. 

, Rolston V. 1 S. 

, State V. 2 A. R. 

Clifton V. Cook, 7 A. R. 

, Goodgame v. 13 A. R. 

Y. Grayson, 2 S. 

, Mayfield v. 3 S. 

V. Sharpe, 15 A. R. 

Clopton V. Martin, 11 A. R. 

-, Sledge V. 6 A. R. 

Cloud V. Barton, 14 A. R. 

V. Golightly, 5 A- R. 

, Hargroves v. 8 A. R. 

V. Patterson, , IS. 

, Price y. 6 A. R. 

, State V. 6 A/R. 

Clough V. Johnson, 9 A. R. 

Clute, Crawford v. ' 7 A. R. 

, Hobson V. 8 A. R. 

Coalter v. Bell, 2 S. & P. 
, Harkins v. 2 P. 



Judge of Limestone 



Co. V. • 3 S. & P. 

Coats, Hemphill v. 4 S. c% P^ 

, Windham v. 8 A. R. 

Cobb T. Cage, 7 A. R. 

^ V. Force, G A. R. 

, Hamner v, 2 S. & P. 



392 
50 
531 
539 
360 
470 
502 
535 
269 
330 
514 
422 
35 
227 
220 
30 
395 
622 
289 
345 
267 
703 

410 
421 
445 
489 
225 
251 

79 
363 

62 
526 

26 
114 
583 
412 
375 
618 
187 
589 
347 
654 
173 
394 
248 
628 
425 
157 
357 
358 
463 

348 
125 
285 
619 
468 

oco 



Cobb 



V. Miller, 
, Mitchell y. 

V. Reed, 
, Smith V. 



Cobia V. State, 
Coburn v. Harwood, 
Cochran v. Cunningham, 
Cocke V. Branch Bank at 
bile, 

V. Campbell, 

V. Chaney, 



Cockerham v. Davis, 
Cockrill, Cook v. 
V. Hobson, 



Coffey V. Wilson, 
Coffin, Saunders v. 
Gogburn v. Spence, 
Coggins,v. State, 
Coker v. Crozier, 

, Moore v. 

V. Pearsall, 

'■ — , Read v. 

, Robertson ■ 



Colbert v. Chandler, 
Colburn v. Broughton, 

-,• -Jameson v. 

Colclough, McClure v. 



, McMahan v. 

, McRae v. 

Cole, Blevins v. 

V. Connolly, 

V. Flournoy, 

, Goodgame v. 

, Grant v. 

, V. 



— V. Justice, 
- — V. Spann, 



, Washington v. 

: , Wetumpka R. 

Co. V. 
Coleman, Alston v. 

-, Noble V. 

• — ; Page Y. 

• V. State, 

^ V. 

, V. 



Colgin V. Cummins, 



, Gary v. 

V. State Bank, 



Collehan, McKeagg v. 
Collier v. Chapman, 

V. Crawford, 

-^. , Hubbert v. 

State, 



9 A. R. 499 

13 A. R. 137 

2S. 444 

IS. 62 

16 A. R. 781 

M. 93 

16 A. R. 448 

Mo- 

3 A. R. 175 

13 A. R. 286 

14 A. R. 65 

5 P. 220 

1 S. 475 
16 A. R. 391 

2 A. R. 701 
16 A. R. 421 

15 A. R. 549 

7 P. 263 

5 A. R. 369 

2 P. 347 

6 A. R. 542 

1 S. 22 

11 A. R. 466 

M. 254 

9 A. R. 351 

1 S. & P. 253 

5 A. R. 65 

6 A. R. 492 
2A. R. 68 
2A. R. 74 
1 A. R. 210 

16 A. R. 271 
9 A. R. 401 

12 A. R. 77 
9 A.R. 366 
8 A. R. 519 
8 A. R. 793 

13 A. R. 537 



R. 473 
R. 212 



655 

795 

77 
275 



Collingsworth v. Horn, 
Collins, Alexander v. 



13 A. 
6 A. 
R. 

6 A.R. 

7 A. R. 
16 A. R. 

9 P. 

13 A. R. 602 

5 P. 32 

' 3 A. R. 14 

1 P. 148 
3 P. 393 

11 A. R. 514 
11 A. R. 222 
13 A. R. 828 

2 S. 163 
M. 100 

6 A. R. 269 

2 S. 388 
4 S. & P. 237 

7 A. R. 480 



TABLE OF cases: 



XXXV 



Collins, Anderson v. 

, Brahan v. 

, Br. Bank Mobile 

■ V. Boyd, 

V. Fowler, 



, Harris v. 

V. Hyslop, 

, Johnson v. 

V. State, 

, Tindall V. 

, Wilson V. 

Colman v. Waters, 
Colquitt, Dougherty v. 
Colson, Alford y. 
Colvin v. Rich, ■ 
Comegys v. Booth, 

V. Cox, 

, Cromwell v. 

V. McCord, 

, State Bank y. 

Comelander y. Bird, 
Commercial Bank, Prince v. 1 A 
Commissioners v. Criswell, 6 A 

, Smith y. 

, State y. 

y. Thompson, _. 

Commons y. Walters," 
y. , 



6 A. R. 

M. 

^ 7 A. R. 

14 A. R. 

4 A. R. 

10 A. R. 

13 A. R. 

11 A. R. 

12 A. R. 

14 A. R. 

2 P. 
9 A. R. 

3 P. 
i^A. R. 

8 a: R. 

" 3 P. 

3 S. 

M. 

l.S. 

7 A. R. 

11 A. 

12 A. 
11 A. 



15 



Comptroller, Nichols y. 
Comstock, Chilton y. 

y. Giyeus, 

y. Meek, 

Conally y. Kayanaugh, 

, Von Pheel y. 

Conaway, Posey v. 

Condry y. Henley, 

Cone, Murray y. 

Congre'l Church y. Morris, 8 A 

Conklin y. Harris, 

Conly, McKinstry y. 

Connelly, Roberts y. 

Conner, Abercrombiey 

, Stewart y. 



V. Tuck, 

Connor, McKenzie y. 
Conway, Stocking y. 
Cook, Bass y. 

V. Bloodgood, 

, Brock y. 

, Butler V. 

, Clifton y. 

• y. Cockrill, 

— ; y. Dayis, 

— y. Drew, 

V. Dyer, 



R. 
R. 
R. 
R. 
R. 
IS. 

3 P. 
A. R. 

1 P. 
IP. 

2 P. 
4 S. & P. 

4A. R. 

6 A, R. 

r A. R. 

11 A. R. 
9 P. 

10 A*'. R. 

4 S. & P. 

8 P. 

R. 

5 A. R. 

12 A. R. 
14 A. R. 

10 A. R. 

13 A. R. 
9 A. R. 

11 A. R. 

IS. 
. IP. 

4 P. 

7 A. R. 

3 P. 

14 A. R. 
,7 A. R. 

IS. 

12 A. R. 
3 S. & P. 

3 A. R. 



783 
169 

95 
505 
647 
858 
388 
508- 
322 
608 

17 
127 
381 
337 
550 
175 

14 
201 
262 
498 
932 
772 
913 
241 
565 
183 
412 
134 
323 
377 

38 
154 

58 

95 
528 
169 
452 
811 
9 
250 
182 
213 
678 
235 
293 

94 
803 
794 
162 
260 
390 
683 
464 
576 
114 
475 
551 
392 
643 



Cooper 



Cook, Edgar y. 

X. Farinholt, 

y. Field, 

, Hall y. 

— ^ , Hatch y. 

— y. Kennerly, 

-^ y. Lewis, 

, Murchie y. 

— , Napier y. 

, Outlaw y. 

—, Patterson y. 

r^^, Randolph y. 

CooUdge, Moore y. 

Ripley y. 

Cox y. 

\'. Frederick, 

^ , Grayes y. 

y. Maddan, 

T—, McNair v. 

-. — ; — — , Spruil y. 
Co'opwood y. Wallace, 
Cope y. Williams, 
Copeland y. Clark, 

, Lucas y. 

y. Touchstone, 

Coperthwaite, Magee y. 
Gbpewood y. Taylor, 
Corley y. Shropshire, 
Corner y. Corner, 
Corp'n of Mobile, Battle y 

Stewart y. 



4 A. R. 

3 A. R. 

3 A. R. 

1 A. R. 

9 P. 

12 A. R. 

16 A. R. 

1 



Corprew y. Arthur, 
Cost y. Genette, 
Costillo V. Thompson, 
Cothran v. Moore, 
V. Weir, 



Cotney, Porter y. 
Cottingham, Pitts y, 
Cotton y. Huey, 

y. Lane, 

— ^ — ■■ — V. Wilson, 



Cottrell, Apperson y. 
V. Varnum, 



Couch y. Campbell, 

y. Couch, 

V. Terry, 



Courtland y. Tarlton, 
Coyington y. Kelly, 
State y. - 



0»6 

384 

53 

629 

177 

42 

67 

A. R. 41 

A. R. 838 

M. 257 

8 P. 66 

2 P. 286 

1 P. 280 

M. 11 

A. R. 256 

A. R. 738 

R. 811 

R. 

R. 

R. 

R. 

R. 



9 

8 A. 
6 A. 
4 A. 

16 A. 

12 A. 

4 A. 

2 A. R. 

2 S. 

16 A. R. 

10 A. R. 966 

7 P. 33 

2A. R- 66 

3 A. R. 524 

9 A. R. 234 
9 A. R. 

15 A. R. 
IP. 



431 
660 
791 
790 
362 
388 
151 
333 



9 A. 
1 A. 
3 A. 

3 A. 

9 

4 A. 



234 
525 
212 
937 
423 

24 
314 
675 

56 



Coyy y. State, 
Cowan y. Harper, 
Cowart y. Harrod, 
Cowling y. Douglass, 
Cox, Bishop y. 

, Comegys y. 

y. Cooper, 

y. Cox, 

y. Easley, 



R. 
R. 
R. 
R. 
P. 
R. 
M. 320 
M. 118 
M. 203 

3 P. 51 
5 A. R. 229 

6 P. 262 

7 A. R. 519 
12 A. R. 225 

8 A. R. 532 
6'A. R. 
4A. R. 

4 P. 
2 S. & P. 236 
12 A. R. 265 

4 A. R. 206 
M. 204 

1 S. 262 
3 A. R. 250 

2 P. 533 
11 A. R. 362 



860 
603 
186 



XXXVl 



TABLE OF CASES. 



Cox, 



V. Easter, 

,Huffv. 

V. Jones, 

, Kemp V. 

, Nance v. 

V. Eobinson, 

, ■ — V. 

V. Williamson, 

Cozzins, Calhoun v. 



, Jemison v. 

V. Whitakei", 

Crabb, Morgan v. 

V. Pratt, 

Craddock v. Stewart, 
Crafts V. Dexter, 
Craig V. Atwood, 

, V. 

V. Blow, 

, Bryant v. 

V. Carswell, 

, Earbee v. 

V. Ely, 

, Mason v. 

V. McGehee, 

V. Orton, 

, Robinson V. 

, Sorrell v. 



, State Y. 

Crane v. Holman, 
Cravens v. Bryant, 
Crawford, Andress v. 

, Austin V. 

V. Bank of Mobile, 

V. Branch Bank at De- 
catur, 6 A. R. 
V. Branch Bank at Mo- 



1 P. 

2 A. R. 

1 S. 

14 A. R. 
16 A. R. 

2 S. & P. 

M. 

11 A. R. 

3 A. R. 
3 A. R. 
3 A. R. 

3 S. & P. 

3 P. 

15 A. R. 

6 A. R. 
8 A. R. 

1 S. & P. 

3 S. & P. 

3 S. 

12 A. R. 

4 S. & P. 
1 A. R. 

5 S. & P. 
3 S. & P. 

16 A. R. 

M. 
16 A. R. 

8 A. R. 

9 A. R. 

15 A. R. 
12 A. R. 

16 A. R. 
3 A.R. 

11 A. R. 

7 A.R. 
5 A. R. 



bile, 



V. , 

V. , 

V. , 

V. Canfield, 
V. Chandler, 



R. 
R. 
R. 
R. 



V. 



- V. Childress, 
-, Childs V. 

-, Clements v. 

- V. Clute, 
-, Collier v. 

- V. Creagh, 
-, Gregg V. 
-, Hatch V. 

-, Lamkin v. 

- V. McKissack, 
-, McMorris v. 

- V. P. & M. Bank, 

- V. , 



6 A.R. 
8 A.R. 

7 A, 
7 A. 

6 A. 

5 A. 

7 A. R. 
1 A. R. 

8 A.R. 
1 A. R. 

• 7 A. R. 

. M. 

1 A. R. 

4 A.R. 

2 P. 

8 A.R. 

IP. 

15 A. R. 

4 A.R. 

6 A. R. 



130 

310 

379 

614 

125 

91 

84 

343 

21 

498 

636 

322 

470 

843 

77 

767. 

86 

21 

448 

oe I 
oOtt 

267 
607 
354 
389 

41 
111 

50 
566 
534 
789 
363 
570 
278 
853 
^335 

55 

574 

12 

79 
205 
383 
153 

61 
506 
482 
731 
531 
157 
100 
592 
180 

54 
153 
433 
271 
313 
289 



Crawford v. Simonton, 

V. Slade, 

Y. State, 

V. State Bank, 



; Y. Whittlesey, 

Craytoh y. Clark, 
Creagh, Crawford v. 

, Portis V. 

V. Savage, 

v. , 



7 P. 

9 A.R. 

M. 

5 A.R. 

8 A. 
11 A. 

1 A. 
9 

9 A. 
14 A. 



Waters 



Creighton v. Denby, 

Y. Paine,- 

Y. P. and M. Bank, 

Crenshaw v. Davenport, 

Y. Hardy, 

Y. Harrison, 

Y. McKiernan, 

, Mundine v. 

, Robinson v. 

, Weaver v. 

Crews, Carter v. 
Crimm v. Townsend, 
Criswell, Commissioners v. 
Crocheron, B.B. Mont'ry v 

, Gray y. 

, King; v. 



R. 
R. 
R. 
P. 
R. 
R. 
M. 
4 S. & P. 
4 S..& P. 
M. 
2 A. R. 
A.R. 
A. R. 
A. R. 



Crockett, McMahon v. 

— , Smith V. 

V. Trotter, 

v. 



Croft, 



State Bank v. 

Y. Terrell, 

V. Topp, 

Crommelin v. Minter, 
Cromwell v. Comegys, 
V. Kidd, 



Crook, Turnipseed y. 
Crooin y. Datvis, 

V. Travis, 

— , Wheat Y. ' 

Crosby, Bell v. 
v. Lassiter, 



Cross, Spears v. 

v. Worrall, 

Crothers v. Ross, 
Crow V. Decatur Bank, 
Crowill, Rankin y. 
Crowly, State v. 
Crozier, Coker v. 
Crumpton v. Newman, 
Crutchfield v. Easton, 

v. Haynes, 

■ , Y. 



, Hudson v. 
v. Wood, 



Gnlbreath, Reynolds v. 



8 A. R. 

M. 

O b-. 

2 S. & P. 

6 A.R. 

2 P. 

9 A. R. 
6 A. R. 

. 5 A.R. 
8 P. 

14 A. R. 

M. 
M. 

I S. & P. 

2 P. 

6 A. R. 

15 A. R. 
4 A.R. 
9 A. R. 

7 A.R. 
13 A. R. 

8 A.R. 

6 A. R. 
10 A. R. 

7 A.R. 
4 A. R. 

4 A. R. 

7 P. 

II A. R. 

15 A. R. 

5 A.R. 

M. 

13 A. R. 

5 A. R. 

12 A. R. 

13 A. R. 

14 A. R. 
7 A.R. 

12 A. R. 

16 A. R. 
14 A.R. 



110 

887 
143 
679 
806 
787 
592 
332 
959 
454 
128 

81 
410 
250 
158 
156 
390 
653 
342 
295 

87 
276 
873 

81 
403 
565 
250 
191 
822 
362 
277 
446 
401 
622 
652 
238 
594 
498 
576 
897 

40 
237 
349 
575 
201 
437 
108 
800 
249 
125 
172 
369 
199 
337 

49 
189 
433 
702 
581 



TABLE OF CASES. 



xxxvu 



Ciillum V. Batre, 

, V. , 

V. Bloodgood, 

■ V. B. B. at Mobile, 

Y. Casey, 

■ V. , 

V. Emanuel, 

V. Erwin, 

-^ , Miller v. 

V. Smith, 

Culp V. State, 
Culpepper, Williamson v. 
Cummings v. Colgin, 



V. Eclmunclson, 

V. Gill, 

V. Gray, 

, Hale V. 

, Jennings ¥. 

'■ — , Langford v. 

V. McCullough, 

V. McGeliee, 

V. Tindall, 

Cundiff, Mock v. 

V. Onus, 

Cunningham, Anderson v. 

, Burford v. 

V. Carpenter, 



1 A. R. 

2 A. R. 
15 A. R. 

4 A. R. 

9 
1 A. 
1 A. 
4 A. 
4 A. 
6 A. 

1 
IG A. 



P. 

R. 

R. 

R. 

R. 

R. 

P. 

R. 
3 P. 
IP. 

5 P. 
A. R. 
.&P. 
A. R., 

9 P. 

4 A. R. 

5 A. R. 
9 P. 
&P. 

6 P. 

7 P. 
M. 

2 P 
10 A. r! 



6 

4S, 
3 



4S. 



126 

415 

34 

21 

131 

351 

23 

452 

576 

625 

33 

211 

393 

148 

145 

502 

397 

39S 

309 

46 

324 

349 

357 

24 

58 

48 

244 

109 



Cunningham, Cochran v. 

— V. Green, 

, Johnson v. 

V. Life I. & T. Co., 

, Neil V. 

V. Pool, 

V. Rogers, 

, Sutherland v. 

, Turnipseed v. 

West 



Currie v; Mann, 

, Pugh V. 

V. Thomas, 



Curry v. Bank of Mobile, 

— V. Barclay, 

, Branch Bank Mont- 



gomery V. 
, Fournier v, 
, Minge v. 

V. Paine, 

V. Robinson, 



Curtis V. Gary, 
Pitts V. 



Cuthbert y. BoY^^ie, 

Y. Lewis, 

Y. Newell, 

, Walker v. 



13 
4 
5 
3 

11 
6 

4 
10 
6 

7 
10 



A. R. 
A. R. 
A. R. 
A. R. 

2 P. 
A. R. 
A. R. 

1 S. 
A. R. 

9 P. 
A. R. 
A. R. 

8 P. 

8 P. 
A. R. 

A. R. 
A. R. 
A. R. 
A. R. 
A. R. 
A. R. 
M. 
A. R. 
A. R. 
A. R. 
A. R. 
A. R. 



448 
127 
249 
652 
171 
615 
147 
438 
501 
104 
531 
446 
293 
360 
484 

304 
321 
168 
154 
266 
842 
118 
350 
163 
262 
457 
213 



D 



Da Costa, Boraim y. 
Dade v. Bishop, 

V. Buchanan, 

, Caller v. 

— ■ , Carter v. 

Dailey, GiYhan y. 

, GoYcrnorY. 

, Hudson V. 



Dale 



Y. GoYernor, 
— , Holland v. 

- Y. Mosely, 
Ridgell Y. 



, Watson V. 

Dandridge, Gilchrist y. 
Danelly, Harrison y. 
Daniel, Bird y. 

Y. Hopper, 

— , Mead y. 

V. Sorrells, 

Daniels, Benford y. 
Dansby y. Johnson, 

-, Scott V. 

Darby, Carter y. 
Darden y. Burns, 
Dargan, Armstrong v. 

, Hall Y. 

V. Waring, 



4 A 


R. 


393 




M. 


263 




M. 


415 




M. 


20 


^ IS. 


18 


4A 


R. 


336 


14 A 


R. 


469 


13 A 


R. 


722 


3 S. 


387 




M. 


265 


4 S. & P. 


371 


16 A 


R. 


36 


1 P. 


247 




M. 


165 


5 P. 


213 


9 A 


R. 


302 


6 A 


R. 


296 


r 


P. 


86 


9 A 


R. 


436 


13 A. 


R. 


667 


3 A. 


R. 


390 


12 A. 


R. 


714 


15 A. 


R. 


696 


6 A. 


R. 


362 


11 A. 


R. 


506 


4 A. 


R. 


696 


11 A. 


R. 


988 



Darrington y. Borland, 3 P. 

, B. B. at Mobile v. 14 A. R, 

, Chamberlain y. 4 P. 

, Hall Y. 9 A. R. 

Dart, Steele y. 6 A. R. 
Darwin y. TuscumbiaR. R. Co, 4 P. 

DaYcnport v. Bartlett, 9 A. R. 

, Crenshaw v. 6 A. R. 

Y. Drake, 3 P. 

, Drish Y. 2 S. 

-, JlIcGraw y. 6 P. 

David, Powers y. 6 A. R. 

Davidson y. Ernest, 7 A. R. 

Y. Love, 1 A. R. 

Y. Shipman, 6 A. R. 

Davis v. Allen, 11 A. R. 

, Adams v. 16 A. R. 

^ — v. Avres, ■ 9 A. R. 

v. b: B. at Mobile, 12 A. R. 

V. Campbell, 3 S. 

Y. Carlisle, 

V. 



Y. Cathey, 
v. Chester, 

, Cockerham V. 

, Cook V. 



6 A. R. 

7 A. R. 
9 A. R. 

IS. 

M. 

5 P. 

12 A. R. 



9 
192 
515 
502 
798 
160 
179 
390 
342 
266 
319 
9 
817 
133 

27 
164 
748 
292 
463 
319 
707 

42 
858 
402 
385 
220 
551 



XXXYlll 



TABLE OF CASES. 



Davis, 



Groom v. 
v. Davis, 

V. 



Dickson, 

, Dunn V. 

, Fairley V. 

, Governor v. 

, Gurlej^ V. 

, Harris v. 

, Harrison v. 

, Hogan V. 

V. Hooper, 

V. Hunter, 

, Jones V. 

, Lee V. 

V. McConnell, 

V. McKinnej^, 

V. Pender, 

V. Preston, 

, Prim V. 

, Pteid V. 

, Smith V. 

V. State, 

, Thomas v. 

, TraAvick v. 

• V. Tuscumbia R. 

R. Co., 

V. AVade, 

, Westmoreland v. 

V. White, 

, Wier V. 

Dawes, Hodges v. 
Dawkins v. Gill, 
Davidson, Bradford v. 

, Dore V. 

, Leavitt v. 

V. Turner, 

Day, Dockery v. 
Dean v. Fail, 

V. Governor, 

V. Massey, 

V. Portis, 

v. Rathbone, 

, School Comm'rs v, 

Kennedy v. 

, V. 

Pearing, Beall v. 

V. Hall, 

. : — V. Lightfoot, 

.■ V. Moffitt, 

V. Smith, 

V. Watkins, 

V. Windham, 

Dearman v. Dearman, . 

— '- — V. , 

7——- — V. Radcliife, 
._ . , , — , Womack v. 



6 A. R. • 40 
6 A. R. 611 

10 A. R. 299 
2 S. 370 

12 A. R. 135 

6 A. R. 375 
9 A. R. 917 

7 A. R. 315 

1 A. R. 259 

2 S. 350 

3 A. R. 
4 S. & P. 

7 A. R. 

2 A. R. 
16A. R. 5,16 

3 S., 492 

5 A. R. 

■ M. 

6 A. R. 
2 A.R. 

4 A. R. 

2S. 

4 S. & P. 

a A. R. 

4.A. R. 



70 
231 
135 

730 



719 

57 

88 

24 

83 

224 

'83 

113 

328 



299 
131 
442 
215 
206 
203 
712 
335 
1^5 



Dear, 



Deas, Cawtliornc v, 
, Montnndon v. 



4 S. & P. 421 
4 A. R. 208 

1 A. R, 

3 A. R, 

4 A. R 
6 A. R 

10 A. R 

2 A.R. 

6 A. R. 
4 A. R. 

5 S. & P 

7 P. 518 

8 P. 491 
13 A. R.o26 

7 A. R. 601 

11 A. R. 104 

15 A. R. 328 
2 S. & P. 19Q 

4P, 

6 P. 
7 a:. R.. 

2 S. & P. 243 

16 A. R. 28 
6 A. R. 776 
4 A. R. 432 

16 A. R. 20 

11 A. R. 204 

4 A. R: 521 
■ 5 A. R. 202 

5 A. R. 192 

7 P. 513 
2 P. 276 

12 A. R. 33 



423 

90 

124 



De Bard v. Smith, 
Debrell, Brahan v. 
Decatur Bank v. Spence, 
Deforest v. Elkins, 
Kibbler 



9 A. R,. 

1 S. 
9 A. R. 
2 A.R. 
6 A. R. 
1 A. R. 
14 A. R. 
e.A. R. 

Delage v. Hazzard, ' 16 A. R. 

DelBjn-co v. B. B. Mobile, 12 A. R 



De GraiFenreid v. Pearsall, 

=■ v., Thomas, _ .^' 

— , Whitaker v-. 



Delony v. Walker,, 
Dement v. Boggisg, v, . 
Demott' V. SwOjim, ■ 
De Mony v. Johnston, 
DenbV, Creighton v7 ' 
Denham v. Harris, 
Dennis, Alexander v. 

, Boyd V. 

-, Clay V. 

, Fryer v. 



, Gr^y V. 

, Smith V. 

— , Stone V. 

Densler v. Edwards, 
Densely, Caller v. 
Dent V. Chiles, 

V. Smith, 

V. State Bank, 



Denton, Thomas v. 
Derrick V". Baker, 
— — — , Echols V. 

— V. Jones, 

V. Kennedy, 

, Lowe V. 

V. JMorris, 

Desha v. Holland, 

V. Pope, 

V. Scales, 



V. Stewart, 
r— .■^ 



Deshazo v. L^^y^* 
Deshdci', Alsobrook v, 

v. Cabinees, 

^ V. Guy, 

V. Hodges, 



De Sylva v. Henry, 

V. 



Devon, Carpenter v. 
Dew v.. Garner, 

— : , GiHespie v. 

State Bank, 



De Witt v. Bigelow, 
Dewoody v. Hubbard, 
Dexter, Crafts v. 
V. Nelson, 



9 P. 

, 13 A. R. 

6-S: & P. 

. 7 A. R. 

M. 

13 A. R. 

9 P. 

6 A. R. 

3 A, 

2 A, 

3 A, 
3 A, 
3 A 



De Yampert, Milton 



R. 

R. 

R. 

R. 

R. 

. , 3 P. 
' 5 A. R. 

M. 
5 S. & P. 
15 A. R. 
12 A. R. 
12 A. R. 

15 A. R. 

9 P. 
2S. 
IS. 

4 P. 
9 P. 

5 P. 
12 A. R. 

6 A. R. 
V 6 A. R. 

16 A. R. 
6 A. R. 

.11 A. R. 
5 S. & P. 
10 A. R. 

10 A. R. 

5 A. R. 
3 A. R. 

4 S. & P. 
3 P. 

6 A.R. 

7 P. 

1 S. 

9 A. R. 

11 A. R. 
1 S. & P. 

8 A. R. 
6 A.R. 
3 A.R. 



788 
14 

800 
50 
92 
526 
681 
303 
196 
238 
497 
140 
293 
51 
250 
465 
174 
55 
375 
144 
254 
716 
248 
231 

si 

19 
383 
286 
275 
187 
583 
362 
144 

18 

41 
415 
111 
513 
690 
356 
308 
852 
844 
•91 
698 
959 
186 
509 
409 
132 
718 
503 
229 
323 
480 
9 
767 

68 
648 



TABLE OF CASES. 



XXXIX 



Deyer, Jones v. 
Dial, Moore v. 
DickersoD, Dulany v. 

. V. Hodges, 

V. Toulmin, 

X. Walker, 



16 A. K. 221 
3 S. 155 
12 A. R. 601 
IP. 99 
2 S. & P. 52 
1 A". R. 48 
Dickey, Withers v. 1 S. 190 
Dickinson, Bonneau v. 12 A. R. 475 
V. Branch Bank at Mo- 
bile, 12 A. R. 54 
Dickson, Allen v. ' M. 119 

— , Anderson V. 8 A. R.^ 733 

V. Briggs, 12 A. R. 217 

■ , Davis V. 2 S. 370 

, Dobson T. 8 A. R. 252 

biibone v. Moorer, 14 A. R. 426 

Dill, Hindman v. 11 A. R. 689 

. V. Phillips, ^ , 13 A. R. 350 

Dillahunty v. Parry, ' 1 S. 251 

, Ricks V. ' - ,8 P. 134 

Dihsmore v. Austill, M. 89 

— i. Hand, M. 126 

, Pecks V. 4 P. 212 

Distributees of Cockerham, 

Dobbs T. 2 P. 328 

of Pagan, Green v. 15 A. R. 335 

of Knight V. Godbolt, 7 A. R. 304 

of Mitchell v. Mitch- 
ell, 8 A. R. 414 
Dixon, Savage v. 16 A. R. 257 
Dobbs v. Cockerham, 2 P. 328 
Dobson, Ayres v. 5 S. & P., 441 

V. Dickson, 8 K. R. 252 

, Handley v. 7. A. R. 359 

Dockery v. Day, , 7 P. 518 

• Dodge, "McDonald \-^- 10 A. R. 529 

V. McKay, • 4 A. R. 346 

, V. 5 A. R. 388 

Dodsou V. Harris, " 10 A. R. 566 
Dolin V. Gardner, 15 A. R. 758 

Donald, Tiinstall v. 15 A. R. 841 

Donaldson, Maverick v. 1 A. R. 535 
Donelson, Branch Bank'at De-* '^ 

caturv. 12 A. R. 741 

V. Posey, , 13 A. R. 752 

, Smith V. 3 S. & P. 393 

Donnally, Malone v. M. • 12 

Donnell v. Jones, 13 A. R. 490 

, -V. 9 A. R. 695 

—, O'Neill v. 9 A. R. 734 

V. Thompson, 13 A. R. 440 ^ 

Dore V. Dawson, 6 A. R. 712 

Doremus v. Walker, 8 A. R.. 194 j 

Dorman v. Ogbourne, 16 A. R. 759 j 

Dorrah, Hogg v. 2 1'. 212 \ 

Dorsey, ex imrte '7 P. 293 

Dortch, Martin v. 1 S. 479 \ 

Dossey, Pace v. IS. 20 i 

DoswcU v. Stewart, 11 A. R. 629 ' 



Dothard, Reynolds v. 

V. 



Donge V. Pearce, 
Dougherty v. Colquitt, 

, King V. 

, McGehee v. 



7 A. R. 664 
11 A. R. 531 
13 A. R. 127 
2 A. R. 337 ' 

2 S. 487 
10 A. R. 863 
Douglass, Branch Bank at De- 
catur V. 9 A. R. 853 

, Carter v. 2 A. R. 499 

, Cowling V. 4 A. R. 206 

— V. Terrell, 11 A. R. 583 

Douthitt V. Douthitt, 1 A. R. 594 

r V. Hudson, 4 A. R. 110 

Downman v. Frow, 6 A. R. 879 

-, V. 11 A. R. 880 

v. State, 14 A. R. 242 

Doyle V. Bouler, 7 A. R. 246 

Dozier v. Duffy, 1 A. R. 320 

V. Joyce, 8 P. 303 

Draiue v. Smelser, 15 A. R. 423 

Drake, Clay v. M. 164 

, Davenport v. 3 P. 342 

, ^IcCausland v. 3 S. 344 

V. Reed, 4 S. & P. 192 

Draughan, Bozman v. 3 S. 243 

, Emanuel v. 14 A. R. 303 

V. French, 4 P. 352 

V. Tombeckbee Bank, 1 S. 66 

— V. , 3 S. 54 

Drew, Cook v. 3 S. & P. 392 

v: Ilayne, 8 A. R. 438 

Drinkwater v. HoUiday, 11 A. R. 134 
Drish V. Davenport, 2 S. 266 

Driver, Cawsey v. 13 A. R. 818 

V. Clarke, 13 A. R. 192 

V. Foftner, 5 P. 9 ' 



, Heirs of Brewton v. 13 A. R. 826 

V. Hudspeth, 16 A. R. 348 • 

V. Riddle, 8 P. 343 

, V. 12 A. R. 590 

V. Spence, 1 A. R. 540 

■ ■ V. , 3 A. R. 98 " 

, Walker v. 7 A. R. 679 

Drummond v. Wright, 1 A. R. 205 

Dubarry, Stevens V. M. 379 

Dubose V. Dubose, 7 A. R. 235 

V. Parker, 13 A. R. 779. 

, Rivers V. 10 A. R. 475 

V. Young, 10 A. R. 365. 

— V. , 14 A. R. 139 

Duckworth v. Johnson, 7 A. R 578 

: — V. , 8 A. R. 309 

Dudley V. Moore, 2 S. 170 

-, Ware v. 16 A. R. 742 

-, Willis V. 10 A. R. 933 

Duff V. Ivy, 3 S. 140 

Duffe;e,v. JBuchanan, 8 A. R. 27 

, Dozier v. 1 A. R. 320 

; Maverick v. \ A. R. 433. 



xl 



TABLE OF CASES. 



Duffee V. Pennington, 1 A. E. 

, Remy v. 4 A. E. 

Dufphey v. Frenaye, 5 S. & P. 

, Seaman v. 4 S. & P. 

Duke V. Cahawba Nav. Co, 10 A. R. 

V. , 16 A. R. 

, Hillv. GA.R. 

13 A. E. 

12 A. R. 
9 A. E. 

13 A. E. 
5 A. E. 

M. 

9 A. E. 

5 A.E. 

5 S. & P. 



Dukes V. Leowie, 
Dulany v. Dickerson, 
Dumas v. Patterson, 

, Waddle v. 

Dumos V. McLosky, 
Duncan, Eades v. 

Y. Hall, 

T. Jeter, 

V. Potts, 

V. Simmons, 2 S. 

, State V. 

, Tombeckbee Bank v. 

V. Ware, 5 S. 

, Wood V. 



&P. 
9 P. 
4 P. 
&P. 
9 P. 



Dundas, P. and M. Bank v. 10 A. E. 

Dunham v. Carter, 2 S. 

Y. Grant, 12 A. E. 

V. Eidgel, 2 S. & P, 

, State Y. 9 A. E, 

Dunklin, Eeid v. 5 A. E, 

Y. Wilkins, . 5 A. E, 

Dunlap Y. Clements, 7 A. E 

Y. Foster, 7 A. E, 

Dunn V. Adams, 1 A. E 



50G| 
365 
215 
159 

82 
372 
259 
457 
601 
484 
412 
239 
389 
128' 
604 

82 
356 
260 
181 
119 
227 
G61 
496 
105 
402 

76 
205 
199 
539 
734 
527 



Dunn V. Bank of Mobile, 

Y. Clement, 

V. DaYis, 

Y. Dunn, 

, Ellis V. 

, Nelson v. 



, State V. 

V. Tillotson, 

^ V. White, 

Dupree v. Smith, 
Dupuy V. Gray, 

— : Y. Eoebuck, 

, V. 



2 A.E. 

2 A.E. 

12 A. R. 

8 A. R. 

3 A. R. 

13 A. E. 
15 A. E. 

M. 
9 P. 

1 A. E. 

3 A. E. 
M. 

7 A.E. 

2 A.E. 

2 A.E. 
IP. 
IP. 

7 A. E. 

4 A.E. 
5 P. 

3 A. E. 
Durett Y. Seawall, 2 A. R. 
DuYal Y. Chaudron, 10 A. R. 

Y. McLoskey, 1 A. R. 

, Orr Y. 1 A. R. 

Y. P. and M. Bank, 10 A. R. 

Dwight, McElroy v. 1 S. 

DyelTEasley Y.. MA. R. 



Durand v. Thouron, 
Watkins y. 



Durden y. Barnett, 
Cleveland, 



Duren y. Parsons, 
Spence v. 



Dyer y. Br. Bank at Mobile, 14 A. R, 
,CookY. • ^3A. R. 

Y. Tuskaloosa Bridge Co, 2 P 



152 

392 
135 
784 
632 
259 
501 
46 
272 
645 
736 
357 
484 
352 
535 
238 
251 
169 
225 
345 
251 
669 
391 
708 
262 
636 
149 
158 
622 
643 
.296 



E 



Eades y. Duncan, 
Earbee v. Craig, 

^ V. Evans, 

V. Ware, 

Y. Wolfe, 

Earle, Barney v. 

v. Juzan, 

Easley v. Boyd, 

, Brown v. 

, Cato v. 

, Cox V. 

V. Dye, 

, Long V. 

V. Moss, 

, Shovtridge V. 

-^ V. Walker, 

Easter, Cos v. 
Eastland v. Jones, 

— , Terry v. 

Eastin, Malone v. 

—, May V. 

Eastis, Masters v. 
, McGcc V. 

V. 



M. 
A. R. 

9 P. 

9 

9 

A. 
A. 



389 
607 
295 
291 
366 
106 
474 



P. 

P. 
R. 
R. 

12 A. E. 684 

10 A. E. 564 

2 S. 214 

11 A. E. 
E, 
E, 
E, 

10- A. E. 520 

1"0 A. E. 671 

1 P. 130 

M. 275 

1 S. 156 

2 P. 182 

2 P. 414 

3 P. 368 
3 S. .307- 

5 S. & P. 42C 



14 A. 

13 A. 

9 A. 



362 

158 
239 
266 



Easton, Crtitchficld v, 
Eastwood, Shippey v. 
Eason, Maxwell v. 
Eatman, Miller v. 
Eatoni Y. Patterson, 
Echols v. Derrick, 
V. Exuni, 



Eckford v. Wood, 
Eddins V. Wilson, 

, Hamner v. 

Eddings v. Long, 
Edgar V. Cook, 

, Fitzpatrick v. 



Edgerly Y. Butler, 
Edmonds v. Edmonds, 
Edmondson, Cummings v. 
— Y. Montague, 



Edwards v. Benham, 

, Bruce v. 

, Caldwell V. 

, Densler v. 

, Garey V. 

V. Gibbs, 

, Jcnks V. 



13 A. R. 337 
9 A. R. 198 

1 S. 514 
11 A. R. 609 
2 S. & P. 9 

2 S. 144 
5 A. R. 419 
5 A. R. 136 
1 A. R. 237 

3 S. 192 
10 A. R. 203 

4 A. R. 588 

5 A. E. 499 

3 P. 344 

1 A. R. 401 

5 P. 145 

14 A. R. 370 
2 S. & P. 147 

1 S. 11 
5 S. & P, 312 

5 A. R. 31 

15 A. R. 105 
7 A. R. 292 

6 A. R. 143 



TABLE OF CASES. 



xli 



Edwards v. Lewis, 

, Eeid V. 

, Thaxton v. 

V. Wickliffe, 

Eiland v. Chandler, 

V. Radford, 

Eldridge v. Rogers, 

-—^ V. Spence, 

V. Turner, 

,■ y. 

Elkins, De Forest v. 
Elliott V. Boaz, 
V. , 

Clanlitko V. 

V. Clements, 

V. 



10 A. R. 813 



Ellis, 



Eslava, 

V. 



Gayle v. 
V. Gray, 
V. Hall, 
V. Horn, 

Johnson v. 

Lyon V. 
V. Mayfield, 



McDonald v. , 
V. Montgomery, 



V. Smith, 
Wright V. 
Bell V. 

— V. Bibb, 

V. Burden, 

V. Dunn, 

V. Ellis, 

V. Grooms, 

V. Hickman, 

, Morris v. 

V. Taylor, 

, Thomas v. 

Ellison v. Mounts, 

V. State, 

Ellzy, Oliver v. 
Elmes V. McKenzie, 

, Sorelle v.. 

■ V. Sutherland, 

Elmore v. Harris, 
Elrod, Hussey v. 
Elsberry, Sankey v. 
Ely, Boddie v. 

, Craig V, 

V. McClung, 

, Parkman v. 

V. Witherspoon, 

Emanuel v. Atwood, 

, Cullum V. 

V. Draughn, 

, Garrow v. 

1— F 



7 P. 
1 S. 

7 A. R. 

8 A. R. 
7 A. JR. 



508 
524 
715 
781 
724 



M. 392 

16 A. R. 682 

11 A. R. 1049 

6 A. R. 821 

2 A. R. 50 
9 A. R. 772 

13 A. R. 535 

5 P. 403 

5 A. R. 470 

11 A. R. 360 

3 A. R. 568 
5 A. R. 264 



10 A. 
4S. & 

8 A. 
10 A. 
12 A. 

3 A. 

3 A. 



264 
168 
508 
348 
112 
654 



74 
391 
294 

63 
458 
632 
296 

47 



4 A. R. 417 
1 S. 219 

4 A. R. 600 
6 A. R. 701 
1 A. R. 

1 S. 

1 S. & P. 

2S. 

1 A. R, 
3 A. R, 

15 A. R 

1 S, 

M. 394 

3 A. R. 560 

1 P. 289 
R. 108 
R. 472 
R. 273 
R. 632 
R. 617 

6 A. R..706 

7 A. R. 262 

13 A. R. 360 

2 A. R. 339 
10 A. R. 455 

3 S. 182 
5 S. & P. 354 

4 P. 128 

5 A. R. 346 
2 A. R. 131 

6 P. 384 
1 A. R. 23 

14 A. R. 303 

3 S. 285 



4 A. 
12 A. 

8 A. 
11 A. 

5 A. 



Emanuel, Hobson v. 

V. Hunt, 

, Judson V. 

V. Martin, 

•, Mayor, &c. v. 



Embree v. Norris, 
England, Patton v. 
English V. Andrews 

— ^ V. Brown, 

, Ezell V. 

, Johnson v. 

V. Lane, 

V. Savage, 



Ernest, Davidson v. 
Erskine V. McLendon, 
Erwin v. B. B. Mobile, 

, Cullum V. 

V. Ferguson, 

, Magee v. 

, Radcliffv. 



Eskridge v. Glover, 
Eslava, Antones v. 

, Clements v. 

, Elliott V. 



-, v. Farmer, 



Hallett V. 

V. 

Judson V. 



, Mayor, &c., v. 

, North V. 

V. Rigeaud, 

, Shelton v. 

, Terry V. 

Esselman, Turner v. 
Estabrook, State v. 
Estill, Keith, 

Shelky, 



Etheridge v. Fuller, 

v. Hall, 

-■ — , Jones v. 

Evans v. Boggs, 

V. Boiling, 

V. , 

V. Bridges, 



— V. Clark, 
— , Earbee v. 

— V. Evans, 

— V. Fearne, 

— V. Gordon, 



— , Harding v. 

— V. Irvin, 

— V. Keeland, 
— , Kyle V. 

— V. Matthews, 



8 P. 442 
2 A. R. 190 

1 A. R. 598 
12 A. R. 233 

9 P. 403 

2 A. R. 271 
15 A. R. 69 

4 P. 319 

9 A. R. 504 

6 P. 311 

1 S. 169 

1 P. 328 

14 A. R. 342 

7 A. R. 817 

1 S. 30 
14 A. R. 307 

4 A. R. 452 

5 A. R. 158 
5 S. & P. 54 

M. 88 

5 S. & P. 264 

9 P. 527 

4 P. 502 

3 A. R. 568 
5 A. R. 264 
7 A. R. 543 

11 A. R. 1028 

2 S. 115 
3 S. & P. 105 

M. 2 

M. 71 

9 P. 577 

12 A. R. 240 

3 A. R. 363 



R. 230 

P. 273 

R. 690 

R. 653 

P. 669 

P. 185 

58 

47 

208 

354 

546 

550 



6 A. 
1 

15 A. 
6 A. 

9 

2 

6 A. R. 

7 P. 
6 P. 

M. 

8 P. 
5 A. R. 

4 P. 348 
1 P. 388 

9 P. 295 
A. R. 465 

16 A. R. 689 

8 P. 142 

8 P. 346 

3 P. 221 

1 P. 390 

9A. R. 42 

3 A. R. 481 

8 A. R. 99 

V. R. 643 



16 



9 



xlii 



TABLE OF CASES. 



Evans, McGehee v. 

V. McMahon, 

V. Mott, 

V. Murphy, 

V. Norman, 

V. Norris, 

V. Saltmarsh, 

, V. 

V. Sanders, 

V. State Bank, 

V. , 



V. Stevens, 

V. Steel, 

V. St. John, 

, Thompson v. 

V. Watrous, 

Everett, Black v. 



IS. 
1 A. R. 

7 P. 
1 S. & P. 

14 A. K. 

1 A. 11. 

1 S. 
1-S. 

8 P. 
13 A. R. 

15 A. R. 
8 A. R. 

2 A. R. 

9 P. 
12 A. R. 

2 P. 
.5.S. .SgP. 



589 I 

45 

92 

226 

Gr.2 

511 

43 

132 

497 

787 

81 

517 

114 

186 

588 

205 

60 

%■' 



Everly 
Ewina;, 



Everett, Martin v. 11 A. 

, Townsend v. 4 A. 

v. United vStates, 6 

V. Bradford, 4 A. 

Boardman v. 3 S. & 

?^ v. Medlock, 5 

, Winston v. 1 A. 

Ex'r of Goodman V. Pledger, 14 A. 
Green v. Green, 7 

Sankey v. Sankey, 6 A.' 



-Tillinghastv.Johnson,'5 A 

Withers v. Dickey, 1 

Exum, Echols v. -SjA. 

Ezell v. English, . / 6 

V. Miller, 6 

, Monroe v. 11 A. 

, Murray v. 3 A. 



R. 375 
R. 607 
P. 166 
R. 371 
P. 293 
P. 82 
R. 129 
R. 114 
P. 19 
R. 607 
.R.514 
S. 190 
R. 419 
P. 311 
P. 307 
R. 603 
R. 148 



F 



Fail, Dean v. 
Faires, v. Lodanc, 
Fairley v. Davis, 
Faison, State Bank v. 
Falconer, Litchfield v. 
Falkner v. Chandler, 



V.Jones, 

V. Leith, 

Falls V. Gaither, 

V. Weissinger, 

Fambro v. Gantt, 
Fancher, Phelan v. 
Fant V. Cathcart, * 
Farinholt, Cook v. 
Faris v. King, 
Farley v. Gilmer, 

, Haynes v. 

V. Nelson, • • 

Farmers' Bank, Hanrick 

V. Reid, 

, Whitman v. 

Farmer v. Eslava, 

, v. 

V. Mayor, &c., 



Farnsworth, Richardson v. 
Farr v. State, 
Farrar v. Foote, 
Farrelly, Robinson v. 
Faiilk V. Judge County Co, 



8 P. 491 

10 A. R. 50 

6 A. R. 375 

4 P. 252 

2 A. R. 280 

11 A.R. 725 
5 A. R. 567 

12 A. R. 165 

15 A. R. 9 

9 P. 605 

11 A. R. 801 

12 A. R. 298 

5 A. R. 449 
8 A. R. 725 

3 A. R. 384 

1 S. 255 

12 A. R. 141 

4 P. 528 

4 A. R. 183 

8 P. 539 

3 A. R. 299 

8 P. 258 

11 A. R. 1028 

7 A. R. 543 
8 A. R 279 

6 A. R. 738 

1 S. 55 
6 A. R. 794 

2 S. 442 

16 A. R. 472 
2 P. 538 



v. State, 
Faver v. State Bank, 
Fawkos, Reed v. 
Fay, United States v. 
Fearn, Searcy v. 
Fearne, Evans v. 



9 A. R. 919 

10 A. R. 616 

9 P. 623 

9 P. 465 

2 S. & P. i28 

16 A. R. 689- 



Fcathcrstonc, Fitzpatrick v. 3 A. R. 40 



Felder, Geron v. 

— ; v. Harper, 

FellovFS, Carleton v. 

— , Shirley v. 

.—- v. Tann, 



Fennell, Capshaw, 

-, Castleberry v. 

V. Patrick, 

Fenno v. Sayre, 
Ferguson, Erwin v. 

, Grice v. 

V. Hill, 

, Terry v. 

Fernandez v. State, 
Field V. Bevil, 

, Clark v. 

, Cook V. 

, -Johns V. 



Figh, Mead v. 
Files V. McLeod, 
— , Pollard V. 



Fillyaw, State v. 
Finch V. Alston, 
Strong V. 



Findlay v. Pruitt, 

V. Ritchie, 

, Samuels v. 

, Singleton v. 

v. State Bank, 

V. Stevenson, ~ 

, Woodley v. 

V. Wyser, 

Finn v. Barclay, 
Fipps V. McGehee, 
Fisher, Alexander v. 

-r-' V. Campbell, 

, IMagee v. 

, Sadler v. 



15 A. R. 304 

12 A. R. 612 

13 A. R. 437 

9 P. 300 
R. 999 
R. 780 
R. 642 



9 A. 

12 A. 

4 A. 



3 S. & P. 244 

3 A. R. 458 

5 A. R. 158 

1 S. 36 

3 S.485 

8 P. 500 
7 A. R. 511 

12 A. R. 608 
1 A. R. 468 

3 A. R. 53 

5 A. R. 484 

4 A. R. 279 

14 A. R. 611 
3 A. R. 
3 A. R. 

2 S. & P. 
M. 

9 P. 

8 P. 452 
7 A. R. 635 

IP. 144 

6 A. R. 244 

3 S. 48 

9 A. R. 716 

1 S. 23 

15 A. R. 626 

5 P. 413 

7 A. R. 514 

9 P. 210 

8 A. R. 320 
3 A. R. 200 



47 
735 

83 
256 
195 



TABLE OF OASES. 



xliii 



Fisher, Sanders v. 
Fitch, Stebbins v. 

, Wheelock v. 

Fitts, Sawyer v. , 

Fitzhiigh, Smoot V. 

, Swift V. 

Fitzpatrick, Alexander v. 

V. B. B. Moutg'y, 

•¥• Edgar, 

V. Featherstone, 

V. Hanrick, 

V. Harris, 

V. Hill, 

Flanagan, Fortner v. 

-^ V. Gilchrist, 

, State V. • 

riant V. Malone, 
Fleming, Barlow a% 

— Y. Burge, 

— , Smith V. 

Fletcher v. Gamble, 

V. Weisman, 

Flinn, State v.- 
Flora V. Menirice, 
V. State, 



11 A. 11. 

1 S. 

3 P. 

2 P. 
4S. &P. 

9 P. 
9 P. 

4 P. 
14 A. R. 

5 A.- R. 

3 A. R. 

11 A. R. 

8 A 

9 A 
G A 



R. 
R. 
R. 

3 p; 

8 A. R. 

5 A. R. 

M. 
- A. R. 

6 A. R. 

9 A. R. 
3 A. R. 
1 A. R. 

M. 

J2 A. R. 

4 P. 



Florence Bridge Co., White v. 4 A. R. 
Flo'urnGy v. Childress, 

V. Clements,, 

, Cole V. 

Floyd, Harrell v. 



Foley, Green v. 



Fontaine v. Lee, ' ^ . 

Foote, Farrar v. 

Y. Lawrence, 

Force, Cobb y. ' 

Ford V. Bank of Mobile, 

Y. B. B. at Decatur 

, B. B. at Mobile v. 

V. Ford, 

V. Johnson, 

, Keebles y. 

Y. Womack, 

Foreman v. Hax"dwick, 

Y. Lay, 

Forney, Herndon y. 
Forrest, Camp y. 

, Hallett V. 

V. Jones, 

V. Robinson, 



Forrester, Inge v. 
Fortner, DriYer y. 

Y. Flannagan, 

Fortune y. Brazier, 
, V. . 



M. 

7 A. R. 

9 A. R. 

3 A. R. 

3 S. 
2 S. & P. 
, ,6 A. R. 
'to A. R. 

2 S. 
1 S. 

6 A. R. 

9 P. 

, 6 A. R. 

13 A. R. 

4 A. R. 
2 A. R. 

5 A. R. 
2 A. R. 

10 A. R. 

6 A. R. 
4 A. R. 

13 A. R. 

8 A. R. 

7 A. R. 

4 P. 
2 A. R. 
G A. R. 

5 P. 

3 P. 

10 A. R. 
to A. Ri 



812 
180 
387 
9 
3G5 

72 

39 
405 
533 
499 

40 
783 

32 
783 
314 
257 
620 
477 

92 
140 
373 
768 

ouO 

G02 
8 
83G 
111 
464 

93 
535 
401 

16 
239 
441 
889 
755 
442 
483 
468 
471 
286 
431 
142 
565 
183 
368 
316 
784 
243 
114 
264 
493 

44 
215 
418 
9 
257 
791 

516 



Fortune y. State Bank, 
Forward y. Armstead, 

, Marston y. 

SaYage, 



Foster y. Athenceum, 

, Bowie Y. 

'■ — , Brown y. 

, Butler V. 

, Dunlap Y. 

Y. Foster, 

-, Gayle y. 

Y. Goree, 

— Y. Harrison, 

, Y. 

Y. Johnson, 

Y. Mabe, 

, Marr y. 

Y. McDonald, 

: V, __, 

— ^ "' "^' 

, McRae y. 

Y. Mitchell, 

, Nixon Y. 

Y. Ross, 

Y. Smith, 

— Y. Stafford, 

— Y. Walker, 

Y. White, 



4 A. R. 

12 A. R. 

5 A.R. 
7 A.R. 

3 A. R. 
M. 

4 A.R. 

14 A. R. 

7 A. R. 
2S. 

M. 

4 A. R. 

5 A.R. 

3 A.R. 
9 A. R. 

13 A. R. 

4 A. R. 
' IS. 

3 A.R. 

5 A.R. 

5 A. R. 
2 S. & P. 

15 A. R. 

8 A. R. 
M. 

IG A. R. 

14 A. R. 
2 A.R. 

9 P. 
7 P. 

4 A.R. 

6 A.R. 

2 A.R. 

4 A.R. 
10 A. R. 

3 A.R. 
10 A. R. 
10 A.R. 

9 A. R. 
10 A. R. 

2 A.R. 

10 A. R. 

2 P. 

9 P. 

10 A. R. 

8 A.R. 

5 A.R. 

6 A.R. 

9 A.R. 
13 A. R. 

5 P. 
IP. 

11 A. R, 

6 P. 

; Tombeckbee Bank v. M. 

Freeny v. Ware, 9 A. R. 
Frenaye, Dufphey v. 5 S. & P. 
French, Draughan v. 4 P. 
Y. Garner, 7 P. 



, Young Y. 

Fournier y. Curry, 
Fourier, Welch y. 
Fowlkes Y. Baldwin 
Fowler, Collins y. 



Stewart y. 
V. Trewhit, 



Fox Y. Paine, 
Frampton, Adams v. 
Franklin, Childs Y. 

, Hazard y. 

Y. McGuire, 

, Sewall V. 



Franks, Wharton v. 
Frazer v. Brownrigg, 
Frazier, Houston v. 

, Stewart y. 

Thomas, 



Frederick, Cooper v. 
Freeman y. Baldwin, 

Y. Bradford, 

, Byers y. 

'• Y. McBroom, 

V. State, 



385 
124 
347 
463 
302 
264 
282 
323 
734 
356 
125 
440 
424 

25 
955 
379 
402 

57 

34 
376 
664 
143 
571 
357 
421 
192 
714 
177 
221 
420 
321 
516 
705 
647 
858 
629 
622 
523 
124 

79 
349 
577 
493 
232 
817 

81 
114 
169 
738 
246 
270 
478 
943 
372 
285 
370 
215 
352 
549 



xliv 



TABLE OK CASES. 



French, Judge Limestone v 
Frierson v. Blakesley, 

, Skinner v. 

Frisbie v. McCarty, 
Frost, Garey v. 

, V. 

, Gibbs V. 

Frow V. Downman, 

V. 



V. Smith, 
■, Tait V. 



Frowner, Barney v. 

, Innerarity v. 

Fry V. Merchants' Ins. 



Co. 



.3S.&P.263 

3 S. 267 

■ 8 A. R. 915 

I S. & P. 56 

5 A. R. 636 
10 A. R. 852 

4 A. R. 720 

II A. R. 880 

6 A. R. 879 
10 A. R. 571 

8 A. R. 543 

9 A. R. 901 
2 A. R. 150 

15 A. R. 810 



Fry 



V. B. B. at Mobile, 
■, Stewart v. 



Fryer v. Austill, 
V. Dennis, 



V. McRae, 



Fulford Y. Johnson, 
Fuller, Ethridge v. 

, Hare v. 

Funderburg, Cavender v. 
Fuqua v. Carriel, ' .• 

V. Hunt, 

V. Stone, 

Furness, B. B. at Mobile v, 



16 A. R. 282 

3 A. R. 573 

2 S. 119 

2 A. R. 144 

3 A. R. 254 

8 P. 187 
15 A. R. 385 

6 A. R. 58 

7 A. R. 717 

9 P. 460 
M. 170 

,1 A. R. 197 

1 S. 435 

12 A. R. 367 



G 



Gaffney, B.B.Montgom'y v. 9 

■ V. Williamson, 12 

Gaines v. Acre, 

, Barnett v. 8 

V. Beirne, 3 

, Greenlee v. 13 

, Johnson v. , 8 

V. McKinley, 1 

, Melone v. 

, Neal V. 

, Sturdevant v. 5 

• V. Tombeckbee Bank, 



Oainesville Acad. v. Brown, 3 
Gaither, Clark v. 6 
, Falls V. 



Gamble, Fletcher v. 

V. Gamble, 

— -, Henry v. 

V. — •, 

, Hutchinson v. 

, Ivey V. 

, Sossamon v. 



Ganaway, Griffin v. 

, V, 

Gandy, Henderson v. 
Gannard, McComas v. 
Gantt, Fambro v. 

, Garner v. 

, Governor v. 

, Marrs v. 

, Marshall v. 

Oarber, Lambeth v. 
Gardner v. Allen, 

, Dolin V. 

V. Morrison, 

Garland, Boram v. 
Oarner v. Clay, 

, Dew V. 

, French v. 

V. Gantt, 

V. Green, 



12 

% 

8 
11 



12 A 



15 

6 

6 

15 

12 

9 



A. R. 153 

A. R. 628 

M. 141 

A. R. 373 

A. R. 114 

A. R. 198 

A. R. 791 

A. R. 446 

M. 317 

1 S. 158 

A. R. 435 

M. 50 

A. R. 326 

A. R. 139 

9 P. 605 

A. R. 335 

A. R. 966 

M. 6 

M. 15 

A, R. 36 

7 P. 545 

M. 4 

A. R. 148 

A. R. 625 

A. R. 431 

M. 422 

R. 298 

7 P. 452 

1 S. 388 

M. 406 

A. R. 682 

A. R. 870 

A. R. 187 

A. R. 758 

A. R. 547 

A. R. 452 

1 S. 182 

7 P. 503 

7 P. 549 

7 P. 452 

A. R. 96 



Garner, Reavis v. 

V. Simpson, 

, State V. 

T. Tififany, 

Garnett, Jordan v. 

V. Roper, 

Garrard, McGowan v. 

V. Webb, _ 

— V. Zachariah, 

V. , 



Garrett,, Adams v. 

, Bradshaw v. 

, Carter v. 

, Hughes V, 

, Huie V. 

, Locke V. 

, O'Neal V. 

, Prewitt V. 

V. Rhea, 

V. Ricketts, 

, V. 



Garrison, Herndon v. 
Garrow, Barlow v. 

— -v. Carpenter, 

V. 



V. Emanuel, 

V. Hallett, 

V. Salles, 

', St. John V. 

Garth, Anderson v. 
, Robinson v. 



Garvin, Merriwether v. 
Gary v. Bates, 

, Bowman v. 

V. Boykin, 

, Clarke v. 

■ V. Colgin, 

, Curtis V. 

V. Edwards, 

V. Frost, 



3 
10 



12 
13 



12 A. R. 661 

M. 67 

8 P. 447 

M. 167 

A. R. 610 

A. R. 842 

2 S. 479 

4 P. 73 

1 S. 272 

2 S. 410 
A. R. 229 

IP. 47 
A. R. 728 

8 A. R. 483 

10 A. R. 298 
16 A. R. 698 

3 A. R. 276 
6 A. R. 128 

9 A. R. 134 
9 A. R. 529 

11 A. R. 

5 A. R. 

M. 
4 S. & P. 

1 P. 359 

3 S. 285 

2 S. 449 
1 S. 499 

4 P. 223 

1 S. 160 

6 A. R. 2Q4 

2 P. 199 

12 A. R. 544 

M. 326 

R. 154 

R. 

R. 

M. 

15 A. R. 

5 A. R. 

10 A. R. 



806 

380 

1 

336 



7 A. 
11 A. 

11 A. 



98 
514 
118 
105 
636 
852 



TABLE OF CASES. 



xlv 



• V. Hathaway, 

■ V. Hines, 
, Hopkins v. 
V. James, 
V. McCown, 
V. State Bank, 
V. Ten-ill, 
T. Wood, 
, V. 



Gascoignes, Hardy v 
Gaston v. Parsons, 
Gates V. McDaniel, 
V. , 



6 A. R. 

8 A. R. 

7 A. R. 
7 A. 
6 A. 

11 A. 

9 A. 

4 A. 

5 A. 
6 



R. 
R. 
R. 
R. 
R. 
R. 
P. 

8 P. 

2 S. 
4 S. & P. 

3 P. 

9 P. 
9 P. 
1 S. 

4 P. 
4 P. 

6 A. R. 
3 A. R. 
14 A. R. 
1 S. 
— V. Cahawba R. R. Co, 8 A. R. 



Gaus, State v. 
Gause v. Hughes, 
Gay, Armstrong v. 
Gayle v. Agee, 

• V. , 

, Bartlett v. 

V. Benson, 

V. Bishop, 

V. Blackburn, 



- V. Elliott, 

■ V. Foster, 
•, Hill V. 

•, Holmes v. 
■V. Hudson, 
V. Martin, 
■, McDonald V. 
■, Morehead v. 
•, Pearson v. 

■ V. Preston, 
V. Randle, 



2S. .! 
11 A 



V. Singleton, 

V. Smith, 

V. Toulmin, 

V. Turner, 

, Watkins v. 

V. Weir, 

Gazzam v. Bank of Mobile, 

V. Bebee, 

V. Kirby, 

, Pitfield V. 

V. Poyntz, 

, Sampson v. 

Geddes, Kennedy v. 
, T. 



10 A. R. 

M. 

1 A. R. 

1 A. R. 

10 A. R. 

3 A. R. 

M. 

P. 

R. 

8 P. 

1 S. 

4 P. 

1 S. 

8 P. 

M. 

5 A. R. 

M. 

4A. R. 

3 P. 

1 A. R. 

8 P. 
8 P. 

2 A. R. 
4A. R. 

G 



3 A. 

9 A. 



Gee V. Bacon, 

V. Life I. & T. Co., 13 A 



, Miller v. 
, Murphy v. 

V. Nicholson, 

V. Pharr, 

V. Williamson, 



16 A 
4A 
9 A 

' 2S. 

5 A. R. 

IP. 



161 
837 
46 
640 
370 
771 
206 
296 
43 
447 
469 
211 
69 
356 
633 
552 
175 
439 
507 
305 
234 
552 
429 
586 
264 
125 
275 
517 
116 
593 
98 
224 
278 
291 
529 
232 
566 
270 
83 
283 
204 
153 
193 
268 
49 
253 
325 
374 
123 
263 
581 
699 
579 
637 
359 
276 
512 
586, 
313 



Genette, Cost v. 1 

Geore-e v. Cahawba R. R. Co, 8 A. 



, Perine v. 

V. Stockton, 

Geron v. Felder, 
V. Geron, 



Gewin, Hodges v. 
-, Jackson v. 



— , Leiper v. 



Gholson, Barnett v. 
Gibbs, Edwards v. 

V. Frost, 

-; V. Jemison, 

, Waller v. . 

V. Wright, 



5 A, 
1 A, 

15 A, 
15 A. 

6 A. R. 
9 A. R. 
8 A. R. 

9 P. 
R. 
R. 
R. 
R. 



Gibson v. AndreAvs, 

, Ashburne v. 

, Benford v. 

— , Bradley v. 

■— V. Carson, 

V. Goldthwaite, 

— ■ , Governor v. 

— , Hatchett V. 

V. Laughlin, 

, McAden v. 

, State Bank v. 

, Summerlin v. 

, Tarleton v. 

Gififord, Ward v. 
Gilbert, Bozeman v. 

V. Bradford, 

V. Brashear, 

V. Lane, 

, Tate V. 



11 A 

4 A, 

12 A, 
10 A, 

14 A. R. 
4A. R. 

9 P. 

15 A. R. 
9 A. R. 
3 A. R. 

7 A. R. 

14 A. R. 

13 A. R. 
M. 

5 A. R. 

6 A. R. 

15 A. R. 

2 A. R. 
M. 

1 A. R. 
15 A. R. 

12 A. R. 
3 P. 

5 S. & P. 

, V. 2 P. 

Gilchrist v.B. B. Montg'y, 11 A. R. 

~ " 15 A. R. 

M. 

8 A. R. 

9 A. R. 

7 A. R. 

13 A, R. 

3 A. R. 
11 A. R. 
10 A. R. 

3 A. R. 

6 A. R. 

10 A. R. 

6 A. R. 

3 P. 

14 A. R. 

15 A. R. 

1 S. 
3 S. & P. 

7 P. 
5 A. R. 
4A. R. 
9 A. R. 

2 P. 



Boyd V. 

V. Dandridge, 

-, Flanagan v. 

V. Gilmer, 

, Lake v. 

Gilders, Casly v. 

, Catlin V. 

Jeter, 



Gildersleeve v. Caraway, 
Giles V. Williams, 
Gill, Cummings v. 

, Dawkins v^ 

, Hawkins v. 

V. Taylor, 

V. Tittle, 



Gillespie v. Battle, 

V. Dew, 

V. Somerville, 



— V. Wesson, 



Gilliland, Bass 
Ware, 



Gillian v. Senter, 
Gillis, Caldwell v. 



212 
234 
641 
136 
304 
558 
478 
114 
326 
381 
292 
720 
820 
131 
465 

66 
549 
521 
406 
421 
281 
326 
587 
182 
341 
814 
406 
638 
5 

90 
769 
191 
267 
114 
386 
408 
849 
165 
620 
985 
955 
322 
536 
256 
260 
316 
562 
206 
620 
183 
528 
276 
229 
447 
454 
761 
414 
395 
526 



xlvi 

Gilmer v. B. B. Mobile, 

, Farley v. 

, Gilchrist v. 

V. Wier, 



TABLl^ OF CASt:S. 



1 A. R. 

12 A. R. 
9 A. R. 
8 A. R. 



Gindrat v. Mechanics' Bank, 7 A. R. 



Girard, Masterson v. 
Givens, Comstock v. 

, Herndon v. 

V. Kendrick, 

V. Lawler, 

, Marriott V. 

V. Robbins, 



V. Rogers, 

, State V. 

V. Tidmoro, 

V. AVestern Bank 

Givhan v. Dailey, 
Glasscock, Johnson v. 

, V. 

Glassell, Chapman v-. . 

, Waddle v. 

Glaze V. McMillion, 

, State V. 

Glazener, Sims v. 
Glidden v. Andrews, 



V. Leonard, 

, Sewall V. 

, Wiswall V. 

Glover v. Chandler, 

, Eskridge a'. 

V. Glover, 

, Hair v. 

, Kirk V. 

V. Millings, 

, Pledger v. 

, Quarles v. 

V. Rainey, 

■ V. Robinson, 

Blatter v 



Goading v. Britain, 
Goar, Worsham v. 
Godbold V. B. B. Mobile, 

■ V. Meggison, 

V. P. and M. 

V. Roberts, 

, Scull V. 

-, Tombeckbee Bank v 



10 A. R 
6 A. R. 

16 A. R. 

15 A. R. 
9 A. R. 

8 A. R. 
5 A. R. 

11 A. R. 
11 A. R. 

5 A. R. 
' 8 A. R. 

2 A. R. 
4 A. R. 
2 A. R. 
2 A. R. 

13 A. R. 
11 A. R. 

7 P. 

9 A. R. 

14 A. R. 

6 A. R. 

10 A. R. 
14 A. R. 

4 P. 

1 A. R. 
4 A. R. 

11 A. R. 
5 S. & P. 

16 A. R. 
14 A. R. 
5 S. & P. 
2 S. & P. 

2 P. 
4 A. R. 

2 A. R. 
M. 

14 A. R. 

I S. & P. 
4 P. 

II A. R. 
16 A. R. 

Bank, 4 A. R. 

7 A. R. 
4A. R. 

S. 



Godbolt, Knight v. 7 A. R. 

Godden, State Bank v. 15 A. R. 

Godfrey v. Hays, 6 A. R. 

, McLendon v. 3 A. R. 

Godwin, Brooks v. 8 A. R. 

, Lucas V. 6 A. R. 

Goffe, Miller v. 9 P. 

, Sutherland v. 5 P. 

Goguette, Lewis v. 3 S. & P. 



538 
141 

985 
72 
324 
60 
95 
261 
648 
543 
694 
676 
156 
543 
747 
745 
397 
336 
218 
519 
50 
568 
279 
283 
695 
190 
166 
733 
194 
52 
357 
161 
264 
440 
500 
340 
28 
174 
674 
727 
101 
648 
282 
441 
191 
140 
516 
662 
326 
240 
304 
616 
501 
181 
^0 
831 
265 
508 
184 



Gold, Mundine v. 
Gokling V. Hall, 
Goldsborough, Bradford v 
Goldsby, Lapslej' v. 
Goldsmith, Parker v. 
Goldthwaite, Gibson v. 

v. McWhortcr, 

, Wilkerson v. 



Golightly v. Cloud, 
Goode, Vaughanv. 
Gooden, Hadjo v. 

V. Morrow, 

, Sally V. 

Goodgame v. Clifton, 
V. Cole, 



GoodAvin 



Goodlet V. Smithson, 
Goodman, Bovin v. 

V. Benham, 

V. Griffin, 

v. Munks," 

Pledger, 
y. Brooks, 

V. Governor, 

V. Harrison, 

• ■ V. Lloyd, 

V. Lyon, 

V. McCoy, 

V. McGehee, 

V. Morgan, 

— ■ — — , Turnipseed v. 

v. Wood, 

V. Yarljrough, 

Gookin v. Richardson, 
Gordon, Evans v. 



— — ■ — ; Governor A'. 

V. Hood, 

, McMillan A'. 

V. Phillips, 

, Reid V. 

, Trammell v. 

Gore, Boardman v. 
Goree, Foster v. ' 



Hays V. 
Lyon V. 



Gorman v. Nairne, 
, Trann v. 



Gossett, Stinson v. 
Gould V. Womack, 
GoA^er, Stone v. 
Governor, Adams v. 

— -^ V. Baker, 

, Bancroft v. 

V. BarroAv, 

, Broughton v. 

— ■ , Bullock V. 

V. Dailev, 

, Dale V. " 



14 A. 
6 A. 

IS. & 
6 A. 



5 P. 

9 P. 

, 15 A. R. 

14 A. R. 
16 A. R. 

7 A. R. 
5 S. & P. 

I S. & P. 
5 A. R. 

M. 
13 A. R. 

8 A. R. 
5 A. R. 

13 A. R. 

12 A. R. 

5 P. 

M. 

16 A. R. 

3 S. 
8 P. 

R. 
R. 
P. 
R. 
8 P. 

4 P. 

13 A. R. 

15 A. R. 

1 S. 

9 A. R. 
5 A. R. 

1 S. 

II A. R. 

8 P. 

8 P. 
15 A. R. 

M. 
4 A. R. 

13 A. R. 

2S. 

11 A. R, 

1 S. 

4 A. R, 

5 A. R. 
4 S. & P. 

15 A. R. 

12 A, R. 

9 P. 
4A. R. 
2 A. R. 
1 A. R. 
1 A. R. 

14 A. R. 

16 A. R. 

13 A. R. 
7 A. R. 

2 P. 

14 A. R. 

'3S. 



215 

169 
311 

73 
526 
281 
284 
159 
653 
417 
718 
486 

78 
583 

77 
245 

90 
625 
160 

84 
114 
836 
465' 
438 
237 
297 
271 
232 
278 
372 
152 
152 
889 
142 
346 

72 
122 
716 
565 
469, 
656 
517 
440 
424 
170 
360 
338 
456 
170 

83 
287 
627- 
652 
605 
540 
561 
484 
469 
387 



•TABLE OF CASES. 



xlvii 



Governor v. Davis, 

, Dean v. 

V. Gantt, 

V. Gibson, 

, Goodwin V. 

V. Gordon, 

V. Hancock, 

■ V. Jackson, 

■ , James v. 

, Kelly V. 

V. Knight, 

, Lake v. 

, Lester v. 

V. Lindsay, 

, Lucas V. 

, McBroom v. 



Nabors v. 
Patilla V. 
Perkins v. 
Powell V. 



V. Robbins, 



V. Stonuni, 

V. White, 

. , Whitted V. 

V. Wiley, 

Goyne v. Howell, 
Grace, Patterson v. 
Grady, Browning v. 
Graggs V. Bailey, 
Graham v. Abercrombie, 

, Bender v. 

V. Chandler, 



'^- ) 

V. King, 
V. Lockhart, 
, Petty V. 
V. Ruff, 
V. Tankersley, 



Granberry v. Wellborn, 
Granniss v. Miller, 
Grant, Blann v. 
V. Cole, 



, Dunham v. 

, ex parte, 

V. Pettybone, 

Graves, Alston v. 

V. Cooper, 

, Perry v. 

V. State, 

Gray v. Apperson, 

— ; , Carlisle v. 

V. Crocheron, 



90 
32 
15 

ooo 



9 A. R. 917 

13 A. R. 526 

1 S. 388 

14 A. R. 326 
1 S. & P. 465 

15 A. R. -"2 
2 A. R. 728 

15 A. R. 703 

1 A. R.-605 

-14 A. R. 541 

8 A. R. 297 

2 S. 395 

12 A. R. 624 

14 A. R. 658 
6 A. R. 826 

4P, 
6P, 

3 S. & P 

5 P 
M. 352 

9 A. R. 36 

13 A. R. 516 

9 A. R. 83 

10 A. R. 544 
7A. R. 79 
6 A. R. 839 

11 A. R. 679 

4 S. & P. 441 

6 P. 335 
14A. R. 172 

M. 62 

1 A. R. 264 

10 A. R. 999 

10 A. R. 341 

8 A. R. 552 

M. 269 

12 A. R. 829 

15 A. R. 342 
15 A. R. 563 

8 A. R. 9 

13 A. R. 568 
8 A. R. 171 

15 A. R. 634 
8 A. R. 247 
4 A. R. 118 
1 A. R. 471 
6 A. R. 110 

8 A. R. 519 

9 A. R. 366 
12 A. R. 105 

6 A. R. 91 

2 S. 445 

6 A. R. 174 

8 A. R. 811 
12 A. R. 246 

9 A. R. 447 
3 A. R. 328 

10 A. R. 302 

8 P. 191 



Gray, 



Cummins v. 
V. Dennis, 

Dupuy V. 

Elliott V. 
V. Gray, 



, Johnson v. 

, Jenkins v. 

, Kyle V. 

, Philips V. 

, Powell V. 

V. Thacker, 

, Thompson v. 

V. Turner, 

V. White, 

Grayham v. Roberds, 
Grayson, Clifton v. 
,.Horn V. 



Green, Campbell v. 

, Cunningham v. 

V. Distrib. of Pagan, 15 A. R 



4 S. & P. 

3 A. R. 

M. 
4 S. & P. 

15 A. R. 

16 A. R. 

6 A. R. 
16 A. R. 
11 A.- R. 

1 A. R. 
1 A. R. 

4 A. R. 
2 S. & P. 

7 A. R. 

5 A. R. 
7 A. R. 

2 S. 
7 P. 
M. 
3 A. R. 



V. Foley, 



, Garner v. 

, Green v. 

, Johnson v. 

, King V. 

— — — V. Linton, 

, McMahan v. 

— V. Moore, 

, Pinkstonv. 

V. Pyne, ■ 

, Terrell v. 

v. Tims, 

Greening, Brown v. 

, Parks V. 

Sheffield, 



Greenlee, Bonner v. 

, Briggs V. 

V. Gaines, 

, Hatter v. 

Hines v. 



Greenwood, State v. 
Greer v. McGehee, 



, Wilkes V. 

, Wyatt V. 

Gregg V. Bethea, 

, Caryv. 

V. Crawford, 

— V. Hinson, 



3 S. 
2 S. & P. 

8 A. R. 

7 P. 

4 P. 
2S. 
7 P. 

12 A. R. 

I S. & P. 

9 A. R. 
1 A. R. 

II A. R. 
16 A. R. 

M. 
M. 
M. 

R. 
M. 

R. 

P. 

R. 

P. 

P. 

P. 

R. 



6 A, 



.13 



Greit, Pollard v. 
Gresham v. Leverett, 

V. Walker, 

Gressett v. Agee, 
Grice V. Ferguson, 
■ V. Jones, 



A. 

1 

3 A. 
5 
3 
7 

14 A. 
4 S. & P. 

6 P. 

3 S. 

4 A. R, 

9 P. 

8 A. R, 

10 A. R. 

10 A. R 

14 A. R, 

IS, 

1 S, 



Griffin v. B. B. Huntsville, 9 A. R 
V. Ganaway, 6 A. R 



397 
716 
357 
168 
779 
649 
276 
100 
233 
226 

77 
136 

60 

30 
490 
719 
412 
270 

30 
127 
335 
239 
441 

96 

19 
126 
133 
133 

71 
212 

19 
235 
207 
541 
353 
178 
276 
411 
123 
198 
122 

73 
474 
398 
537 
437 
318 
9 
433 
180 
631 
930 
384 
370 
354 

36 
254 
201 
.148 



xlviii 



TABLE OF CASES. 



Griffin v. Ganawa}^ 

, Goodman v. 

, Heirs of Griffin v. 

, King V. 

, Pond V. 

, Richards v. 

■ — V. Smith, 

V. State Bank, 

V. Stoddard, 

Griffing v. Harris, 
Griggs V. Woodruff, 
Grigsby v. Nance, 
Grimshaw v. Walker, 
Grooms, Ellis v. 
Gross V. Van Wick, 



8 A. R. 625 

3 S. 160 

3 A. R. 623 

6 A. R. 387 

1 A. R. 678 

R. 195 

R. 571 

R. 908 

R. 783 

9 P. 225 

14 A. R. 9 

3 A. R. 347 

12 A. R. 101 

1 S. 47 

M. 7 



5 A, 
14 A. 

6 A, 
12 A 



Grove, Spain v. 
G'dian of Christian v 
of Holloway, 



Guest, State v. 
Guild V. Guild, 
Gullett V. Lewis, 
Gully, Baldwin v. 
-, Simonds v. 



Gunn V. Harrison, 
•, Skinner v. 



Gurley v. Davis, 
Guy, Deshler v. 

V. Winston, 



Gwj^nn V. Weaver, 
, Nolan V. 



M. 177 

, Christian, 3 P. 350 

Switzer v. 2 P. 88 

6 A. R. 778 

A. R. 121 

S. 23 

A. R. 716 

A. R. 721 

A. R. 585 

9 P. 305 

A. R. 

A. R, 

IS, 

1 s, 

A. R, 



16 

11 

7 
7 

7 
5 



16 



315 
186 
149 
219 
725 



H 



Haden v. United States, 



, V. 

V. Walker, 
V. Ware, 



Hadjo V. Gooden, 
Hadnot, White v. 
Hagan v. Campbell, 

V. Thompson, 

Hagerthy v. Bradford, 

, V. 

Hagerty, Parker v. 

, Stubblefield v. 

Haines, Byrne v. 
Hainesworth, Johnston v. 
Hair v. Glover, 

, Howell V. 

V. La Brouse, 

V. Logan, 

V. Moody, 

, Posey V. 

, Thompson v. . 

Hale V. Brown, 

V. Cummings, 

, Hughes V. 

, Johnson v. 

— , Pharr v. 

v. Stone, 

, Walker v. 

, Westmoreland v. 

Haley v. Bennett, 

V. Caller, 

Hall, Abercrombie v. ' 

V. Alexander, 

, Andrews v. 

, Bank of Mobile v. 



-, Byrne v. 

- V. Cannon, 

- V. Chilton, 

- V. Chenault, 



4 P. 

5 P. 

5 A. R. 

15 A. R. 

13 A. R. 

1 P. 

8 P. 

2 P. 
9 A. R. 

11 A. R. 
1 A. R. 
1 A. R. 

M. 

6 A. R. 

14 A. R. 
J5 A. R. 
10 A. R. 

10 A. R 
9 A. R. 

12 A. R. 

7 A. R. 

11 A. R. 
3 A. R. 

5 A. R. 
'3 S. & P. 

9 A. R. 

14 A. R. 

16 A. R. 
11 A. R. 

5 P. 
M. 

6 A. R. 
9 A. R. 

15 A. R. 
6 A. R. 
6 A. R. 

1 S. 

9 P. 
3 A. R. 

13 A. R. 



393 
533 

86 

149 

718 

419 

9 

48 
567 
698 
632 

38 
286 
443 
500 
194 
548 
431 
399 
567 
313 

87 
398 

63 
331 
312 
803 

26 
122 
452 

63 
657 
219 

85 
141 
639 

17 
274 
633 
710 



Hall 



V. Click, 

- V. Cook, 

- V. Dargan, 

- V. Darringtou, 
-, Dearing v. 

-, Duncan v. 
-, Elliott v. 
-, Etheridge v. 
-, Golding V. 
-, Hays V. 

- V. Hilliard, 

- V. Hrabrowski, 
-, Huggins V. 

- V. Lay, 

-, McGregor v. 
-, McHenry v. 

- V. Montgomery, 

- V. Ragsdale, 
-, Ricks V. 

-, Rippetoe v. 

- V. Selma. R. R. 

- V. State, 

- V. , 



, Turcott V. 

, Thompson v 

V. Wilson, 

Hallett V. Allaire, 

V. Allen, 

V. B. B. at Mobile 



- V. Eslava, 

- V. , 

- V. Forest, 
-, Garrow v. 
-, Howell v. 

- V. Hunt, 

- V. Lee, 

-, McVoy V. 

- V. O'Brien, 

- V. . 



5 A. 


R. 


363 


1 A. 


R. 


629 


4 A. 


R. 


696 


9 A. 


R. 


502 


2 S. & P. 


243 


9 A. 


R. 


128 


8 A. 


R. 


508 


7 


P. 


47 


9 P. 


169 


4 P. 


374 


6 A. 


R. 


43 


9 A 


R. 


278 


10 A. 


R. 


283 


2 A. 


R. 


529 


3 S. & P. 


397 


5 P. 


123 


8 A. 


R. 


510 


4 S. & P. 


252 


4 P. 


178 


IS. 


166 


Co, 6 A. R. 741 


9 A, 


R. 


827 


15 A. 


R. 


431 


8 A. 


R. 


522 


16 A. 


R. 


204 


14 A 


R. 


295 




M. 


360 


13 A. 


R. 


554 


le, 12 A. 


R. 


193 


12 A 


R. 


671 


i; 


S. 


115 


3 S. & P. 


105 


8 A. 


R. 


264 





S. 


449 




M. 


102 


7 A. 


R. 


882 


3 A. 


R. 


28 


11 A. 


R. 


864 


1 A. 


R. 


585 


3 A. 


R. 


455 



TABLE OF CASES. 



xlix 



Hallett, State v. 

, Walker v. 

Halsill V. Massey, 
Halsted v. Rabb, 
Hamer v. Harrell, 
Hamilton v. Adams, 

, Bothwell v. 

, Lee V. 

, Lucas V. 

• , Malone v. 

, Robinson y. 

, Toulmin v. 

Hammett v. Smith, 
Hammond, McGill v. 
Hamner v. Cobb, 

V. Eddins, 

Hampton, Bishop v. 

, V. 

V. Shehan, 

, V. 



8 A. R, 

1 A. R, 

2 A. R. 
8 P. 

2 S. & P. 

15 A. R. 

8 A. R. 

3 A. R. 
13 A. R. 

M. 

4 S. & P. 

7 A. R. 

5 A. R. 

8 P. 

2 S. & P. 

' 3 S. 

11 A. R. 

15 A. R. 

7 A. R. 

8 A. R. 
8A. R. 

Hancock v. B. B. at Decatur, 5 A. R. 



-, Walker v 



Governor v. 

V. Holmes, 

V. Jordan, 

, Moore v, 

, Scott V. 

V. Tanner, 

Hand, Dinsmore v, 
Handley, Burnett v. 

V. Dobson, 

Haney, Williams v. 
Hankins, Yancey v. 
Hanks v. Hinson, 
Hanrick t. Andrews, 

V. Farmers' Bank, 

, Fitzpatrick v. 

i Herbert v. 

V. Thompson, 

Hansell, McG^hee v. 
Hansford v. Hansford, 

V. Mills, 

Hanson, Johnson v. 
Harbin, Chilton v. 

V. Knox, 

V. Levi, 

— ^ — r- V. Stewart, 
— , Woodward v. 



Harbison, Hearn v. 
Hardeman v. Sims,. 
Hardie v. Turner, 
Harding v. Evans, 

V. Merrick, 

, Murfs V. 

Hardman, Berry v. 
Hardwick, Foreman v. 

V. King, 

V. Robinson, 

1— G 



2 A. R. 

3 A. R. 

7 A. R. 
11 A. R. 

3 S. & P. 

4 S. & P. 

M. 

8 A. R. 
7 A. R. 

3 A. R. 

M. 
4 P. 
9 P. 

8 P. 

11 A. R. 
16 A. R. 

9 A. R. 
13 A. R. 
10 A. R. 

9 P. 
6 A. R. 

6 A. R. 

7 A. R. 
6 A. R. 

4 P. 
1 A. R. 

4 A. R. 
9 A. R. 
3 A. R. 
9 A. R. 

3 P. 

3 A. R. 

6 P. 

12 A. R. 
10 A. R. 

1 S. 
1 S. & P. 



, 159 
.379 
,300 
63 
323 
596 
461 
529 
447 
286 
91 
362 
156 
296 
383 
192 
254 
761 
295 
942 
412 
440 
728 
9 
448 
245 
44 
262 
126 
685 
359 
371 
171 
509 
9 
539 
783 
581 
409 
17 
561 
509 
351 
171 
675 
399 
370 
104 
534 
731 
747 
110 
221 
60 
121 
604 
316 
312 
99 



Hardy v. B. B. Mont'y, 

, Catterlin v. 

, Crenshaw v. 

V. Gascoignes, 

, Ivey V. 

, Todd V. 



Hare v. Fuller, 
Hargrove v. Cloud, 

V. Smith, 

Harkins v. Clemens, 

V. Coalter, 

, ex parte, 

, Kirkmans v. 

V. Pope, 

V. 



Harper, 



State V. 

Cowan V. 

, Felder v. 

V. Howard, 

, Jameson v. 

,|_Keeland v. 

, Malone v. 

, Murry v. 

, Perkins v, 

, Williams v. 

Harrell, Billingsley v, 

v. Floyd, 

, Hamer v. 

V. Martin, 

v. 



Harris, Alderson v. 

, Bagby V. 

V. Bradford, 

, Brooks V. 

V. Carter, 

, Claiborne v. 

V. Clapp, 

V. Collins, 

, ConkUn v. 

V. Davis, 

, Denham v. 

, Dodson V. 

, Elmore v. 

, Fitzpatrick v, 

Grif&ng v. 



, Haygood v. 

, V. 



, Hughes V. 

, Kennedy v. 

V. Kreps, 

V. Martin, 

V. Mauldin, 

V. Purdy, 

V. Richardson, 

, Stone V. 

, Younge v. 

Harrison v. Branch Bank 



15 A. R, 
10 A. R. 

3 A. R, 
6-P, 
2P, 
9 P. 

5 A. R, 

7 A. R. 

8 A. R. 
1 A. R. 

IP. 

2 P. 

6 A. R. 

IP. 
10 A. R. 

16 A. R. 
6 A. R. 

2 S. & P. 

12 A. R. 

3 A. R. 

IP. 

10 A. R. 
2 S. & P. 

3 A. R. 

2S. 

1 A. R. 

11 A. R. 
3 A. R. 

2 S. & P. 
4A. R. 
6 A. R. 

12 A. R. 

9 A. R. 
4A. R. 

12 A. R. 

3 S. 
11 A. R. 

M. 

13 A. R. 
5 A. R. 

1 A. R. 
13 A. R. 
10 A. R. 
13 A. R. 

8 A. R. 

9 P. 
13 A. R, 
10 A. R. 

2 A. R. 
M. 
M. 

9 A. R. 
13 A. R. 

1 S. 

M. 

M. 

2 A. R. 

at 



,722 

511 

.653 

.447 

.548 

346 

,698 

,717 

173 

80 

, 30 

463 

63 

22 
493 
321 

57 
236 
612 
284 
431 
178 
454 
744 
477 
502' 
775 

16 
323 
650 
587 
580 
173 
214 
555 
233 
647 
328 
388 
213 
259 
465 
566 
360 

32 
225 

65 
291 
269 
135 
184 
895 
674 
231 
97 
32 
108 



Montgomery, 1 A. R. 9 



1 



TABLE OF CASES. 



Harrison, B. B. Montgomery v. 2 P. 



Brooks V. 
, Caldwell v. 

V. Cassity, 
, Catoe V. 
, Crenshaw v. 

V. Danellj^, 

V. Davis, 
, ex parie, 

■ V. Foster, 
, v. 

■, Goodwin v. 
•, Gunn V. 

■ V. Harrison^ 

• V. , 

• V. Hicks, 
-, Hooe V- 

• V. King, 

■ V. Mahorner, 

• V. Marshall, 

• V. Mock, 



V. 



-, Mongin v. 

— V. Pool, 

— , Rochelle v. 

— V. Tulane, 

— V. Weaver, 



Harrod, Cowart v. 
Harrolson, Bumpass v. 
Hart, Jones v. 

, McGrew v. 

— V. Smith, 

V. Turk, 

Hartley v. Chandler, 

V. Bloodgood, 

Harton, Moore v. 

T. Scales, 

Hartwell v. Blocker, 
Harvey v. Jeter, 

, Morris v. 

Harwell, Wilkinson v. 
Harwood, Coburn v. 

■ — V. Humes, 

, McKeen v. 

Haskins, Nickels v. 
Hassell, Mays v. 
Hatch v. Cook, 

. V. Crawford, 

V. Pittas, 

Hatchett v. Gibson, 

, Jones V. 

Hatfield v. Montgomery, 

—, Moore v. 

Hathaway, Gary v. 

. , Malone v. 

Hatter, Camp v. 

— v. Greenlee,' 

Haughy V. Strang, 
Haviland, Casky v. 



2 A. R. 
11 A. R. 

M. 
3 P. 

8 A. R. 

5 P. 
2S. 

7 A. R. 
^9 A. R. 

3 A. R. 

6 A. R. 

7 A. R. 

9 A. R. 
9 A. R.. 

1 P. 

11 A. R. 

M. 

14 A. R. 

6 P.' 

10 A. R. 
16 A. R. 

1 A. R. 
16 A. R. 

8 P. 
3 A. R. 

. 2 P. 

12 A. R. 

M. 

2 A. R. 

IP. 

15 A. R. 

15 A. R. 
6 A. R. 

16 A. R. 

1 P. 
M. 

6 A. R. 

7 A. R. 
4A. R. 

13 A. R. 

M. 

9 A. R. 

15 A. R. 

15 A. R. 

4 S. & P. 

9 P. 
12 P. 

M. 

13 A. R. 

- 14 A. R. 

2 P. 

3 A. R. 
6 A. R. 

3^S. 

11 A. R. 

IP. 

2 P. 

13 A. R. 



540 

209 
755 
291 
219 
342 
213 
350 
736 
955 

25 
438 
585 

73 
470 
423 
499 
364 
829 

65 
185 
616 

22 
167 
351 
534 
542 
265 
162 

?3 
175 
807 
675 
857 
233 

15 
166 
581 
688 
300 
660 

93 
659 
792 
619 
222 
177 

54^ 
'49 
587 
743 

58 
442 
161 

29 
16 1 
222 
177 
314 



Havis V. Taylor, 13 A. R. 324. 

Hawkins, Branch Bank at De- 



catur V. 
V. Gill, 
V. May, 
, Nations v. 
V. Rapier, 
•V. State, 



V. 



Hawley, Allums v. 
Haworth, Van Cleave v. 
Hay, Brown v. 
Hayden v. Boyd, 
, Pickens v. 



Haygood v. Harris, 

V. 



Hayne, Drew v. 
-'v. Crutehfield, 



V. Parley, •• 

V. Sledge, 

V. Wheat, 

V. Woods, 

Hays,, Allen v. 

, Godfrey v. 

v. Goree, 

V. Hall, 

V. Johnson, 

, Maull V. 

V. O'Connell, 

Hayter, McElyea v. 

Tj.Pittton V. 

State, 



Hazard v. Franklin, 

, Delage V. 

V. Jordan, 

V. 



12 A. R. 

6 A. R. 

12 A. R. 
11 A. R. 

M. 

3 S. & P. 

IP. 
9 A. R. 

8 P. 

8 A. R. 

5 A. R. 

1 S. & P. 

8 A. R. 

2S. 

13 A. R. 
10 A. R. 

8 A. R. 

7 A. R. 

14 A. R. 

4 P. 
2 P. 

9 A. R. 
. 1. S. 

» . ■■ 1 S. 

' • 6 A. R. 

4 S. & P. 

4 P. 

4 A. R. 

12 A. R. 

9 A. R. 

2 P. 

15 A. R 

7P 

2 a:. R 

16 A. R, 
12 A. R 
10 A. R 



V. P. and M. Bank, 4 A. R 



V. Purdom, 

, Richai-ds v. 

' — V. Shelton, 

Hazlehurst v. Pope, 
Head v. Shaver, 
Headon, -Brock v. 

— , Pope v. 

T— V. Turner, 

Heard, Renfro v. 

, Little V. 

— , Whitlock V. 



Hearne v. Harbison, 
-^ , Oliver v. 



-■■ — , Smith V. 



- — : , Thomas v. 

Hearrin v. Savage, 
Heart t. Judson, 



3P 

1 S. & P, 

15 A. R 

2 S. &P 
9 A. R 

13 A. R 

5 A. R 

6 A. R 

14 A. R 

16 A. R 
13 A. R 
16 A. R 

9 A. R 

4 A. R 

2S 

2S. &P 

2P 

16 A. R 

M 



75» 

620 

673 

859 

113 

63 

475 

137 

461 

584 

188 

102 

323 

10 

65 

291 

438 

189 

49 

528 

530 

239 

12 

10 

501 

170 

374 

267 

499 

488 

148 

. 18 

156 

.349 

196 

180 

221 

299 

43 

139 

. 62 

259 

791 

370 

433 

66 

. 23 

358 

.776 

.336 

.731 

.271 

. 169 

. 81 

262 

286 

. 135 



TABLE OF OASES. 



Heartman, Alston v. 2 A. R. 

Hefflui V. McMinn, 2 S. 

Heifuer v. Porter, _ . 12 A. R. 
Heirs of Bond v. Smith, 2 A. R. 

of Brewton v. Driv&ri'lS A."R. 

of Caller v. Malone, 1 S. &'P. 

of Capal V. McMillan, 8 P. 

,of DuQiiing V. Stanton; 9 P. 

of Griffin v. Griffin, 3 A. R. 

of Hill V. Hill, 6 A. R. 

of Hitchcock v. United 

States Bank, 7 A. R. 

■ of Hoi man v. Bank of 

. . Norfolk, ■• 1.2 A. R. 

of IJIcYoy V. Hallett, 11 A; R. 

of Minis V. Huggins, 1 A. R. 

• of Pollard v. Kibbe, 9 P. 

10 A. R. 

11 A. R. 
. ■ 9 P. 
4 S. & P. 

1 A. R. 
7 A. R. 



Hellen v. Wideman, 
Hemmingway v. Moore, 
Hemphill, Brbwn v. 

Y. Coats, 

, Nance v. 

- — — — Y. Townsend, 

Henderson v.B. B. Mont'y, 11 A.- R. 



V. Gandy, 

^ V. Henry, 

V. Howard, 

— , Kenum v. • 

V. Mabry, 

, Owen V, 

^ — , Prosser v. 

V. Richardsr^n, 

Heudrick v. Johnson, , 
Hendricks v. Chilton, 

V. Johnson, 

Hendrix, Layman v. 

, Saunders v. 

Henley v. Brown, 

V. B. B. Mofeile, 

, Condry y. . 

Henry, Burt v. 
, De Sylva v. 

V. Gamble, 



Henderson v. 
Johnson \. 
O'Brien v. 
Pate V. 
Randall v. 
Roberts v. 
Sea well v. 



V. Smoot, 

V. Thompson, 

V. Thorpe, 

•^— — V. Turner, 
Herbert, Babcock v. 
V. Hanrick, 



11 A, R. 
6 A. R. 

2 A. R. 

6 A. R. 

13 A. R. 

7 A. R. 
11 A. R. 

6 A. R. 

5 P. 

8 A. R. 

6 P. 
I A.E. 

, S A. R. 

. '^ ^1 S. 

IQ A. aR. 

.*4 S. & P. 

•IX) A. R. 

4S.-&P. 

3 P. 

M. 

M. 

6 a; r. 

M. 

6 A. R. 

5 S. & P. 

5 S. & P. 

2S. 

6 A. R. 

9 A. R. 

M. 
M. 

14 A. R. 

2 P. 

3 A. R. 
16 A. R. 



699 
492 
470 
660 
826 
305 
197 
513 
623 
168 

386 

369 
864 
676 
712 
846 
645 
206 
125 
551 
853 
855 
431 
361 
342 
132 
713 
641 
484 
349 
208 
641 
472' 
212 
224 
144 
552 
9 
§74 
409 
132 

•6 

15 
361 

13 
787 
101 
367 

42 
226 

24 

18 
209 
103 

23 
392' 
581 



Herbert, Hrabowskie v. 

V. Hobbs, 

— V. Huie, 

j7- V. Nashville Bank, 

'—, Tarlton v. 



Herndon v. Bartlett, 

— '- V. Forney, 

— — V. Garrison, 

V. Givens, 

, Mabry v. 

-V. Swearengen, 

V. Taylor, 

— ■ , Ward V. 

Herrin v. Woodward, 
Herring v. Mcjildery, 
■Herrington, Self v. 
— ■ , Stover V. 



Hester v. Keith, 

\. Lumpkin, 

■; Russell V. 

■■ — V. Wesson, 

Hetheriijgton v. B. 

bile, 
Hewlett, Perry v. 
Heydenfeldt v. Mitchell, 

— , Peters v. 

Hibbler v. De Forest, 
Hickenburg, Pierce v. 
Hick-man, Ellis v. 

T ; — , Lucas V. 

— — -^ V. Thomas, 



1 

1 S 

4 

4 

5 

16, 



6 
11 

11 

7 

1 

4 

10 

6 

Mo- 
12 

6 
3 
6 



Hicks, Harrison v. 
High- V. Nelms, 

— — V. Stainback, 

Hightower, Aldridge v. 

— V. Ivy, 

V. Kennedy, 



16 
14 

11 



Hill, Bank of Huntsville v. 



- v; Barge, 

- V. Bishop, 
-, Bond V. 

- V. Boddie, 

- V. Bridges, 

-, Canterbury v. 
-, Carlisle v. 

- V. Duke, 

-, Ferguson v. 

- V. Fitzpatrick, 




V. Lambert, 
, Martin v. 
, McGehee v. 
, V. 

V. McNeil, 



12 

2 

2S, 

4S 

16 

6 

6 

9 

1 

10 

9 
6 

8 

1 



A. R. 265 

3S. 9 
A. R. 18 
. & P. 286 
A. R. 359 

4 P. 481 
A. R. 243 
A. R. 380 
A. R. 261 
A. R. 848 

1 P. 192 
A. R. 461 

5 P. 382 
A. R. 792 

5 P. 161 
A. R. 489 
A. R. 142 
A. R. 316 
A. R. 509 
A. R. 535 
A. R. 415 

A.R. 68 

5 P. 318 
A.R. 70 
A. R. 205 
A. R. 92 

2 P. 196 
M. 394 

2 S. Ill 
A. R. 666 

1 P. 423 
A. R. 350 

IS. 24 
4 P. 418 

2 P. 308 
A. R. 562 

1 S. 201 
A. R. 687 
A. R. 320 

2 S. 283 
. & P. 56 

6 P. 197 
& P. 224 

A. R. 398 
A. R. 259 

3 S. 485 
A. R. 314 
A. R. 783 
A. R. 275 
A. R. 527 
A. R. 793 
A. R. 166 

M. 91 
A.R. 43 

4 P. 170 
A. R. 140 

6 P. 29 
8 P. 432 



Iii 



TABLE OF CASES. 



Hill 



V. Norris, 
V. , 



, Peirce v. 

V. Rushing, 

-; , Sawyer v. 

'; V. Slaughter, 

, Stanley v. 

, Starke v. 

V. State, 

V. State Bank, 

, Swift V. 

, Wallace v. 

y. Ward, 

, Wetumpka R. R. 

Co, V. 

V. White, 

, Williamson v. 

Hillhouse v. Peck, 
Hilliard v. Binford, 

, Bradford v. 

Carr, 



2 S. & P. 114 

2 A. R. 640 

9 P. 151 

4 A. R. 212 

12 A. R. 575 
7 A. R. 632 

9 P. 368 
6 A. K 785 
1 A. R. 559 

5 P. 

IP. 
M. 

13 A. R. 



537 

277 

70 

310 



7 A. R. 772 

I A.R. 576 
6 P. 184 

2 S. & P. 395 

10 A. R. 977 
1 P. 13 

6 A. R. 557 

6 A. R. 43 

7 A. R. 531 

11 A. R. 689 

8 A. R. 837 

3 A. R. 73 

II A. R. 634 
M. 255 

13 A. R. 529 

15 A. R. 713 

9 P. 631 

4 P. 509 

4 A. R, 671 
Hinton v. Bank of Columbus, 9 P. 463 



, Hallv. 

Hindman, Burns v. 

V. Dill, 

Hines, Garey v. 

V. Greenlee, 

V. MulUkin, 

, Wilson T. 

Hinkle, Carter v. 

, Williams v. 

Hinson, Gregg v. 

, Hanks v. 

, State V. 



V. Nelms, 
, State V. 
, Williams v. 



Hire, Oliver v. 
Hitchcock, Innerarity v. 

. , Kennedy v. 

, Lucas V. 

V. Lukens, 

V. McGehee, 

V. Smith, 

V. U. S. Bank, 

Hitt, Lacey v. 
Hobart, Richardson v. 
Hobbs V. Bibb, 

. -, Herbert V. 

Hobson V. Baker, 

, Briggs V. 

V. Clute. 

, Cockrillv. 

V. Emanuel, 

. , Jacottv. 

' V. Kissam, 

Hodge V. Thompson, 

V. Wyatt, 

Hodges V. Ashurst, 



13 A. R. 222 

6 A. R. 864 

1 A. R. 297 

14 A. R. 590 
3 S. & P. 9 

4 P. 230 

2 A. R. 287 

8 P. 333 

7 P. 556 
3 S. & P. 

7 A.R. 

3 A.R. 

IS. 
2S. 
3S. 

8 A. R. 357 
.3 A. R. 404 
.8 A. R. 357 

16 A. R. 391 

8 P. 442 
11 A. R. 434 

8 A. R. 357 

9 A. R. 131 
10 A. R. 271 

2 A. R. 301 



29 
386 
104 
500 

54 
9 



Hodges V. Branch Bank at 
Montgomery, 

, V. 

, B. B. at Decatur v. 

, Briley v. 

V. Dawes, 

, Deshler v. 

, Dickerson v. 

v. Gewin, 

V. Hoole, 

V. Laird, 

, Logan V. 

V. 



R. 
P. 
R. 
R. 
P. 
R. 



T. State, 

V. White, 

— ■ V. Wise, 

Hogan V. Alston, 

V. Bell, 

, V. 



13 A. R. 
12 A. R. 

9 A 
3 

6 A 

3 A 
1 

6 A. 
12 A. R. 
10 A. R. 

6 A.R. 

7 A.R. 

8 A.R. 
16 A. R. 
16 A.R. 

9 A. R. 
4 S. & P. 

IS. 



V. B. B. at Decatur, 10 A. R. 

V. Carr, 

V. Davis, 

V. Lapretre, 
, McCoUom V. 

V. Odam, 
, Purnell v. 

V. Reynolds, 
, Smith V. 



V. Stone, 

V. Thorington, 

Hogg V. Dorrah, 
Holbrook, Lacy v. 
Holcomb, Peck v. 
Holder v. Meggison, 
Holford V. Alexander, 
Holland v. Dale, 

, Desha V. 

, Rapier v. 

V. State, 



Holliday, Drinkwater v. 
Hollinger v. B. B. at Mobile, 8 A 



6 A. R. 

3 A.R. 
IP. 

1 A. R. 

3 S. 

) S. & P. 

8 A. R. 

4 A.R. 
16 A. R. 

1 A. R. 
8 P. 

2 P. 
4 A.R. 

3 P. 
2S. 

12 A. R. 

M. 
12 A. R. 

M. 
3 P. 
11 A. R. 

R. 



Holloway, Beatty v. 

, Chandler v. 

V. Johnson. 

, Kenan v. 

' — V. LowCj 

V. , 



T. Holly, 8 A. R. 

V. Smith, 4 A. R. 

4 A.R. 

4 P. 

7 A.R. 
16 A. R. 

7 P. 

1 A. R. 
13 A. R. 

2 P. 

2 A. R. 

3 A. R, 
9 A.R, 

8 A.R. 
3 A. R. 

Holman v. Arnett, 4 P. 
v. Bank of Norfolk, 12 A. R, 



, Roundtree \. 

, Switzer v. 

, Wammack v. 

V. Washington, 

Holly V. Burgess, 

, Hollinger v. 

Maupay v. 



455 
118 
631 
335 
215 
509 
99 
478 
177 
678 
699 
66 

55 
335 
509, 
627 
286 
536 
485 
471 

70 
392 
515 

58 
192 

59 

93 
600 
496 
428 
212 

88 
329 
175 
280 
265 
513 
176 
292 
134 
605 
454 
367 
178 

17 
660 

53 
488 
246 
357 

88 

31 
668 
728 
454 
103 

63 
369 



TABLE OF CASES. 



liii 



Jlolman v. Crane, 
Holmes, Boyce v. 

V. Bullock, 

, Casey v. 

V. Gayle, 

, Hancock v. 

■ — , Middleton v. 

, Nolly V. 

Holt V. Moore, 



Oliver v. 



Honeycut v. Strother, 
Hood V. B. B. at Mobile, 

, Gordon t, 

, SteATartv. 

, Yarborough v.' 

Hooe V. Harrison, ,, 

Hooks, Anderson v.' 

V. B. B. at Mobile, 

V. B. B. at Montg'y 

, State Bank v. 

Hoole, Hodges V. 
Hooper, Davis v. 

, McCurry v. 

, Nance v. 

V. Pair, 

Hoot V. Sorrell, 

Hope, OsAvitchee Co., v. 

•Hopkins, Cantley v. 

V. Garey, 

— V. Land, 



V. Thompson, 

Hopper V. Ashley, 

, Daniel v. 

, Thomas v. 

V. Todd, 

Horn, Collingsworth v. 

, Elliott V. 

V. Grayson, 

, Moore v. 

Horsefield v. Adams, 

, V. 

Horton, Bell v. 

V. Ronalds, 

V. Smith, 

Hosea v. McCrory, 

, McLean v. 

Hosey v. Brasher, 
Hoss, Weir v. 
Houck V. Scott, 
Houghton, Straderv. 
Hounshell v. Phares, 
Houpt V. Shields, 
House, Carwile v. 
Houston V. Frazier, 

V. Prewitt, 

V. Sadler, 



16 A. R. 

2 A. R. 
4 A. R. 

10 A. R. 

1 A. R. 

3 A. R. 

3 P. 

3 A. R. 

4 A. R. 

5 A.R. 

11 A. R. 

2 A.R. 
9 A. R. 

M. 

10 A. R. 

13 A. R. 

11 A. R„ 
9 A. R. 
8 A. R. 

, 15 A. R. 

2 P. 

12 A. R. 

4 S. & P. 
12 A. R. 
11 A. R. 

3 P. 

11 A. R. 

5 A. R. 

5 S. & P. 
7 A. R. 

4 A.R. 

7 A. R. 

2 P. 
15 A. R. 

6 A. R. 

5 A.R. 

8 A. R. 
4 S. & P. 
10 A. R. 

7 P. 

5 A.R. 
10 A. R. 

14 A. R. 
1 A. R. 

2 P. 
8 A.R. 

12 A. R. 
14 A. R. 

8 P. 

6 A. R. 

8 P. 

9 P. 
R. 
P. 
R. 
R. 
R. 



1 A. 



6 A. 
8 A. 
8 A. 

4 S. & P, 

5 S. & P. 



570 
54 
228 
776 
517 
9 
424 
642 
394 
521 
574 
135 
335 
122 
600 
176 
499 
704 
580 
609 
271 
177 
231 
823 
552 
401 
386 
029 
58 
46 
427 
115 
433 
457 
296 
442 
121 
237 
348 
270 
234 
9 
223 
413 
79 
73 
349 
194 
559 
881 
169 
334 
580 
247 
710 
81 
846 
130 
205 



Houston, Sadler v. 

, Smith V. 

"V. ) 

V. Stanton, 



Houze V. Perkins, 
Howard, Harper v. 

, Henderson v. 

V. Jackson, 

, Jasper v. 

V. Kennedy, 

, Yan Arsdale v. 

V. Wear, 

Howe, Johnson v. 
, Pearson v. 



Howell, Arrington v. 

, Goyne v. 

V. Hair, 

V. Hallett, 

, Jones V. 

A''. Reynolds, 

\. Williamson, 

Howie, Royston v. 
V. State, 



Hrabowski, Hall v. 
V. Herbert, 



Hubbard, Bennett v. 

, Dewoody v. 

, Moore v. 



Hubbert v. Collier, 
V. McCollum, 

, — ■ V. 

V. 



Huckabee v. Albritton, 

V. Billingsley, 

V. May, 

Hudgins v. Nix, 
Hudnall v. McCarta, 
V. Scott, 



11 



15 



Hudson, Chandler v. 

V. Crutchfield, 

v- Daily, 

, Douthitt v. 

, Gayle v. 

V. Isbell, 

, Lewis V. 

V. Milner, 

, Musgrove v. 

V. Parker, 

, Reed v. 

Y. State Bank, 

— V. Tindall, 

Hudspeth, Driver v. 
Huey, Cotton v. 
Huff v. Campbell, 

V. Cox, 

Huffaker v. Boring, 
Huffman v. Thompson, 
Hugging, Bank of Mobile 



4 P. 

8 A. R. 
16 A. R. 

11 A. R. 
5 A. R. 

3 A. R. 
2 A.R. 

2S. 

12 A. R. 

4 A.R. 

5 A.R. 

M. 

2 S. 
A.R. 

4 P. 
M. 
A. R. 
M. 
16 A. R. 

12 A. R. 

14 A. R. 
4 A.R. 

15 A. R. 

1 A.R. 

9 A.R. 
4 A.R. 

M. 

1 S. & P. 

4 A. R. 

6 A.R. 
6 A.R. 

13 A. R. 

13 A. R. 
10 A. R. 

16 A. R. 

14 A. R. 
10 A. R. 

M, 

2 A. R. 

8 A. R. 

12 A. R. 

13 A. R. 
4 A. R. 

10 A. R. 

5 S. & P. 

6 A. R. 

12 A. R. 

2S. 

9 A. R. 

13 A. R. 

3 P. 
1 S. & P. 
16 A. R. 

4 A.R. 

1 S. 
2 A. R. 
8 A.R. 

3 P. 
V. 3 A. R. 



208 
736 
111 
412 
286 
284 
342 
493 
652 
592 
596 

84 

27 
370 
317 

62 
194 
102 
695 
128 
419 
693 
309 
113 
278 
265 
270 
9 
187 
269 
221 
282 
289 
657 
414 
263 
575 
402 
569 
366 
433 
722 
110 
116 

67 
463 
667 
464 
413 
570 
340 
237 
348 

56 
543 
310 

87 
196 
206- 



liv 



TABLE OF CASES. 



Iluggius V. Carter, 

V. Hall, 

, Heirs of 3Iims v. 

, Stickney v. 

, Treasurer Mobile 

Hughes, Burt v. 

V, Chadwick, 

■ , Chapman v. 

V. Garrett, 

— , Gause V. 

V. Hale, 

V. Harris, 

, Jackson v. 

, Johnson V. 

, Mead v. 

V. Parker, 

V. Rhea, 

, ■■ V. 

V. Ringstaff, 

■ V. Ross, 

V. State, 



V. Stringfellow, 

Huie V. Garrett, 

. , Herbert v, 

f- V. Nixon, 

■ , Pinkston v. 

, Smith V. 

Hull V. P. and M. Bank, 
Humes, Harwood v. 
Humphres v. Terrell, 
Humphrey v. State, 
Humphreys v. Morrow, 

, Richardson V. 

V. Thompson, 

Hunley, Carlisle v. 

— ^ V. Hunley, 

V. Lang, 

Y. Shuford, 

Hunt, Br. Bank Mobile v 
.•^ , Booker v. 



7 A. R. 
10 A. R. 

1 A. R. 

10 A. R. 
V. 8 A. R. 

11 A. R. 
6 A. R. 

14 A. R. 

8 A. R. 

9 P. 

5 A. R. 

2 A. R. 

6 A. R. 

1 S. 

15 A. R. 

1 P. 
1 A. R. 
1 A. R. 

11 A. R. 

1 8. & p; 

12 A. R. 

1 A. 

2 A. 
15 A, 

10 A, 
1 A, 

• 6 

9 A, 

14 A, 
6 A. R. 
9 A. R, 
1 A. R. 

M. 

9 P. 

M. 

6 A. R. 

15 A. R. 
15 A, 

5 

11 A, 
8 A. 

1 



630 
283 
676 
106 
440 
571 
651 
218 
483 
552 

63 
269 
257 
263 
141 
139 
600 
219 
563 
258 
458- 
6,55 
102 
324 
298 

18 

77 
252 
201 
761 
659 
650 

64 
283 
383 
649 
623 

91 
1.54 
203 
876 

26 



Hunt, Brown v. 

, Chaudron v. 

, Emanuel v. 

, Fuqua v. 

— , Hallett V. 

V. Lewin, 

, Lyon V. 

V. Mayfield, 

, McKeuzie v. 

, Smith •¥. 

V. Stewart, 

Y. Test, 

V. Toulmin, 

Hunter, Cater v. 

, Davis V. 

V. Longmin, 

V. O'Neil, 

-, Sharpe y, 

, Tatum V.' 

Y. Widdron, 

: Y. Whitworth, 

Huntington y. Adams, 

, Babcock v. 

Y. Bell, 

Y. Bi-. Bank Mobile 

, Pippin Y. 



4 A. R. 
3S. 

2 A. R. 
1 A. R. 
7 A. R. 

4 S. & P. 

11 A. R. 
2S. 

, IP. 
• 2S. 

7 A. R. 

8 A. R. 
1 S. & P. 

3 A. R. 
7 A. R. 

M. 

12 A. R. 
16 A. R. 
14 A. R. 

7 A. R. 

9 A. R. 
12 A. R. 
, 9 A. R. 

2 P. 
3 A. R. 
9 A. R. 



HuntsvilleBankv.McGehee.l S. & P 



Hurst, Montgomery v 

v. AVeathers, 

Hurt, Stapler v. 
Hussey Y. Elrod, 
Husted, McDonald v. 
Hutchings, Bigger v. 
Hutching y. Childress, 

Y.^McCann, 

Hutciiinson y. City of Mon 
gomery. 
Gamble, 



9 A. 

15 A. 

16 A. 

2 A. 

3 A. 



Hutchison, Alexander y. 

Tolls, 



Hutto, Oliver v. 
Hyslop, Collins v. 



R. 

R. 

R. 

B. 

R. 

2S. 

4 S. & P. 

7 P. 

13 A. R. 
12 A. R. 

9 A. R. 
2 P. 

5 A. R. 
11 A. R. 



129 

31 

190 

197 
882 
138 
295 
124 

37 
222 
525 
713 
178 

30 
135 

99 

37 
765 
557' 
753 
965 
834 
869 

5t 
186 
228 
306 • 
513 
417- 
799 
339 
297 
445 

34 

94 

573 
36 

825 
44 

211 

508 



I 



Ice V. Manning, 3 A. R. 121 

Ijames, Rhodes v. 7 A. R. 574 

Inge V. Boardman, 2 A. R. 331 

^ V. B. B. at Mobile, 8 P. 108 

V. Forrester, 6 A. R. 418 

, Jones V. 5 P. 327 

V. Murphy, 10 A. R., 885 

— V. — ; 14 A. R. 289 

Ingersoll, Pinkard v. 11 A. K. '9 

. , V. 12 A. R. 441 

Ingraham, Bryant y, 16 A. R. 116 

Innerarity v. Byrne, 8 P. 176 

> V. Frowner, ' 2 A. R. 150 



Innerarity v. Hitchcock, 

v. Kennedy, 

Y. Mims, ^ 

, Rvder v. 

, Tiite v. 

Insurance Bank, Lee v. 
, McRae v. 



lutendant of Gainesville, 
Lewis Y. 

of Greensboro' v. 

MuUins, 



3 S. & P. 9 

2 S. 156 

1 A. R. 660 

4 S. & P. 14 
1 S. & P. 

2 A. R. 
1 A. R. 

16 A. R. 



33 
21 

578 

'55 



7 A. R. 85 
13 A. R. 341 



•ofMarionv. Chandler, 6 A. R. 899 



TABLE OF CASES. 



Iv 



Irbr, Russell v. 
Irviii, Evans v. 

V. Nichols, 

Irvine, McKinley v. 

V. Withers, 

Isaacs V. Boyd, 



13 A. R. 131 

1 P. 390 

5 S. & P. 189 

13 A. R. 681 

1 S. 234 

5 P. 388 



V. Judge of Jefierson 



Co, 
Isbell V. Brown, 

, v. 

, Hudson V. 

V. Morris, 



Ishe, Waddle v. 
Iverson, Sheppard v. 



5 S. & P. 402 
13 A. R. 383 
11 A. R. 1009 
5 S. & P. G7 
IS. &P. 41 
12 A. R. 308 
12 A. R. 97 



Iverson v. Shorter, 
Ives, Thompson v. 
Ivey, Duff v. 

V. Gamble, 

V. Hardy, 

, Hightower v. 

, Mooney v. 

V. Nicks, 

v. Phifer, 



V. Pierce, 
V. Sanderson, 
V. State, 

, T. 



9 A. R. 713 

11 A. R. 239 

3 S. 140- 

7 P. 545 

2 P. 548 

■ 2 P. 308 

8 A. R. 810 

14 A. R. 5G4 

11 A. R. 535 
13 A. R. 821 

5 A. R. 374 
6 P. 420 

12 A. R. 276 
il A. R. 47 



J 



Jackson v. Gewin, 

, Governor v. 

— ; , HoAvard v. 

V. Hughes, 

V. Jackson, 

V. Jones, 

, V. 

, McKenzie v. 

, Reid V. 

V. Stanley, 

V. WaddiU, 

, AVilson V. 

, V. 



Jacott V. Hob'son, 
James v. Auld, 

, B. Bank Mobile v. 

V. Carmick, 

, Gary v. 

V. Governor, 

, Le Baron v. 

, Newman v. 

V. Scott, 



. V. Stewart, 

V. Stiggins, 

V. Tait, 

. , Weatherford v. 

Jameson, Alday v. 

, Booker v. 

V. Colburn, 

V. Harper, 

Jasper v. Howard, 
Jayne, Rouse \. 
Jefford V. Ringgold, 
Jemison v. Cozens, 

• , Gibbs V. 

. , Jones V. 

Jenkins v. Cauley, 

V. -Jenkins, 

, Jennings v. 

v. Gray, 



7 A. 

13 A. 

14 A. 
4 A. 



9 A. R. 114 

15 A. R. 703 

2 S. 493 

6 A. R. 257 
R. 791 
R. 121 
R. 186 
R. 230 

1 A. R. 207 

2 A. R. 326 

1 S. 579 
M. 73 
M. 399 

11 A. R. 434 
9 A. R. 462 
9 A. R, 

M. 

7 A. R, 
1 A. R, 
4 A, 

12 A 
9 A, 

7 



949 
20 
640 
605 
R. 687 
R. 29 
R. 579 
P. 30 



9 A. R. 855 

'13 A. R.'830 

8 P. 476 

2 A. R. 170 

3 P. 112 

4 A. R. 408 

1 S. & P. 253 

1 P. 431 



12 A. 

14 A. 
6 A. 

3 A. 



R. 652 

R. 727 

R. 544 

R. 636 

12 A. R» 820 

4 A. R. 632 

1 S. 61 

16 A. R. 693 

9 A. R. 285 

16 A. R. 100 



Jenks V. Edwards, 
Jennings v. Cummings, 
Jenkins, 



Jeter, Carpenter v. 

, Duncan v. 

, Gilder v. 

-, Harvey v. 



Jeunelot, Bisquay v. 
•Jewett, ex parte, 
Jinkins v. Noel, 
John V. Jones, 

, Scott V. 

V. State, 

V. . 



, Trippe v. 

Johns v. Field, 
Johnson, Alford v. 

, Armstrong v. 

V. Atwood, 

V. Ballew, 

• -, B rah an v. 



V. B. Bank Mont' 
, B. Bank Decatur 

V. Burnett, 
, Butler V. 

V. Christian, 
, Clements v. 
, Clough v. 

V. Collins, 

V. Cunningham, 
, Dans by v. 
, De Mony v.. 
, Duckworth v. 
, v. ' 

V, Elliott, 

V. English, 
, Foard V. 
, Foster v. 
, Fulford v.. 



6 A. R. 

9 P. 

9 A. R. 

4 S. & P. 

5 A. R. 

11 A. R. 

7 A. R. 
10 A. R. 
16 A. R. 

3 S. 

16 A. R. 

15 A. R. 

2 A. R. 

1 A. R. 

2 A. R. 
15 A. R. 

5 A. R. 

9 P. 

M. 

2S. 

. 2 P. 

M. 

1 S. 
% 7 A. R. 
V. 9 A. R. 

12 A. R. 
10 A. R. 

2 P. 

3 S. & P; 

9 A. R. 
12 A.- R. 

1 A. R. 

3 A. R. 
7 A. R. 

7 A. R. 

8 A. R. 

12 A. R. 

1 S. 

2 A.R. 

13 A. R. 
15 A. R. 



143 

309 
285 
326 
604 
256 
688 
245 
409 

60 
454 
566 
2901 

95. 
127' 
117; 
484 
320- 
169' 
225. 

29' 
382. 
189> 
379' 
621 
743 
459- 
2011 
269^ 
425. 
322- 
249* 
390" 

5V 
578 
309- 
112 
16^' 
565 
379^ 
385. 



Ivi 



TABLE OF CASES. 



Johnson v. Gaines, 
V. Glasscock, 



- V. Gray, 

- V. Green, 

- V. Hainesworth, 

- V. Hale, 

- V. Hanson, 
-, Hayes v. 

-, Hendrick v. 



- V. Henry, 

-, HoUoway v. 
-V. Howe, 

- V. Hughes, 

- V. Johnson, 



- Jones V. 

- V. Kelly, 

- V. Lattimore, 
-, Ledyard v. 

-, Lockhart v. 
-, Maynard v. 

- V. McGehee, 

- V. McLaughlin, 

- V. Morrow, 

- V. Neil, 



T. Perry, 

, Peters v. 

V. Petty, 

, Ramsey v. 

• , Roberts v. 

V. Robertson, 

, Shanklin v. 

V. Sims, 

V. Spaight, 

, State V. 

, State Bank v. 

, Thrash v. 

, Tillinghast v. 

, Weissinger v. 

, Whatley v. 

V. Williams, 

V. Wren, 

Jones V. Acre, 
-, Andrews v. 



, Arrington v. 
, Burk V. 

, B. B. at Decatur 
, Bristow V. 
, Brown v. 
, Cox V. 
■ V. Davis, 
, Derrick v. 
V. Deyer, 
, Donnell v. 



9 A. 

9 

4 A. 

11 A. 



8 A. R. 791 
2 A. R. 218 
2 A. R. 519 
6 A. R. 276 

4 P. 126 

6 A. R. 443 
3S. &P. 331 

'6 A. R. 351 

4 A. R. 267 

5 P. 208 

6 P. 472 
M. 13 

7 A. R. 660 

2 S. 27 

1 S. 263 
M. 263 

5 A. R. 90 
2 A. R. 746 

2 S. 490 

7 A. R. 200 
16 A. R. 548 

9 A. R. 223 

4 A. R. 116 

1 A. R. 186 
R. 551 
P. 525 
R. 166 
R. 615 

4S.&P. 45 
M. 100 

5 A. R. 528 

M. 418 
2S. 13 

8 P. 486 
9 A. R. 271 

4 S. & P. 330 
14 A. R. 27 

12 A. R. 840 
9 A. R. 367 

6 P. 458 
5 A. R. 514 

13 A. R. 93 

1 S. 498 

8 A. R. 529 

3 S. 172 
M. 5 

10 A. R. 400 
10 A. R. 460 

9 P. 139 
A. R. 167 
A. R. 487 
A. R. 159 

3 P. 420 
1 S. 379 

2 A. R. 730 

1 S. 18 
16 A. R. 221 
13 A. R. 490 

9 A. R. 695 



13 

. 5 

1 



Jones, Eastland v. 

V. Etheridge, 

, ex parte, 

, Falkner v. 

, Forrest V. 

, Grice v. 

V. Hart, 

V. Hatchett, 

V. Howell, 

Y. Inge, 

V. Jackson, 



V. Jemison, 
V. Johnson, 
V. Jones, 
V. , 



-, Kennedy v. 

- V. Kirksey, 



V. Kolisenski, 

V. Lightfoot, 
, Lowe V. 
, McLendon v. 

V. McLuskey, 

V. Melton, 

V. Merrill, 

, V. 

— V. 

, Moore v. 

V. Norris, 

V. Park, 

V. Perkins, 

V. Pharr, 

V. Pitcher, 

V. Pope, 

V. Powell, 
, Randolph v. 

V. Rives, 

V. Scott, 
, V. 

V. Sims, 

V. Sommerville, 
V. State, 

V. 

- V. Swift, 

-, Thompson v. 
-, V. 

- V. Tomlinson, 

- V. Watkins, 
-, Waters v. 
-, Welch V. 

- V. , 

- V. Wilkinson, 
-, Williams v. 

-, Wilson V. 



M. 
6 P. 

1 A. R. 

12 A. R. 

7 A. R. 

1 S. 

2 A. R. 
14 A. R. 
16 A. R. 

5 P. 

14 A. R. 

13 A. R. 

4 A. R. 
2 A. R. 

8 A. R. 

12 A. R. 

13 A. R. 
11 A. R. 
10 A. R. 

10 A. R. 

7 A. R. 

11 A. R. 
10 A. R. 

15 A. R. 

8 A. R, 
10 A. R. 

6 A. R. 

1 A. R. 

2 A. R. 

8 P. 
13 A. R. 

• 2A. R. 

- , 1 S. 

IS. 

3 A. R. 
3 S. & P. 

6 A. R. 
15 A. R. 
10 A. R. 

3 A. R. 

2 A. R. 

5 A. R. 

6 P. 

9 P. 
1 P. 
IS. 

13 A. R. 
5 A. R. 

12 A. R. 

1 S. 

2 S. & P. 

8 A. R. 

1 S. 

3 P. 

A. R. 

A. R. 

3S. 

2A. R. 

8 A. R. 



11 
15 



275^ 
208 
1& 
165 
493 

254r 

73 

743^ 
695 
327 
186 
121 
632 
746 
262 
244 
145 

63 
579 
839 
622 
607 

17 
545 
298 • 

27 
830 
217 
192 
554 
296 
526 
419 
512 
283 
135 
154 
824 
228 

11 

58 
694 
138 
236 
437 
345 
153 
666 
144 
556 

46 
565 

81 
442 
660 
306 

44 ■ 
314 
536 



TABLE OF CASES. 



Ivii 



Jones, Winston V. 6 A. R. 

V. Yarborough, 2 A. R. 

Jordan V. Abercrombie, 15 A. R. 

V. Autrey, 10 A. R. 

. Bassett v. 1 S. 

v. Bell, S P. 

V. Br. Bank Hunts- 



ville, 
Y. Garnett, 
, Hancock v.- 
V. Hazard, 



V. Lewis, 

V. Locke, 

■— V. Loftin, 

V. Mead, 

, Phillips V. 

■: V. State, 

■^. -,' Wilson V. 

Joseph V. Joseph, 
Joy, White v. 
Joyce, Dozierv. 
Judge, Morriso-n v. 

, Oliver v. 

■ — , Wade V. 

r , Wilkins V. 

•' , Wyattv.. 



7 
10 



A. R. 

A. R. 

A. R. 

\. R. 

12 A. R. 

2'S. 
■ M. 

13 A. R. 
12 A. R. 

3 S. 

15 A. R. 

3 S. & P. 

5 A. R. 

4 A. R. 

8 P. 

A. R. 

2 Sr 

aTr. 

A. R. 
7 P. 



14 



5 
14 



550 
524 
580 
276 
352 
53 

284 
010 
448 
LLl 
180 
426 
254 
547 
247 

38 
746 

92 
280 
571 
303 
182 
483 
130 
135 

37 



' Judge of Benton Co. Court v. 

j Price, 6 A. R. 

— Barbour, Pruitt v. 16 A. R.' 

Jefferson, Issacs v. 5 S. & P. 

— Lawrence, Bevvy- 

! ■ man v. 9 A. R. 

Limestone V. French, 3 S. & P, 

V. Coalter, 3 S. & P. 

Macon, State v. 15 A. R. 

Madis<in v. Looney, 2 S. & P. 

— - Mobile, Stiekney V. 10 A. R. 

Monroe, Faulk v. 2 P. 

9th Circuit, State v. 13 A. R. 

r- Shelby, Yarl>orough v.l5 A. R. 

Wilcox V. Pharr, 4 S. & P. 

M. 

R. 

M. 

■ M. 

M. 

M. 

A. R. 

A. R. 

A. ]!. 

A. R. 

A. R. 



Judson, Clemens v. 

, V. Emanuel, 

: V. Eslava, 

V, , 

, Heart v. 

— V. State, 

'Julian V: Reynolds, 



V. 



Justice, Cole v. 
Jdzan, Earle v. 

, McRae v. 

V. Toulmin, 



1 A 



9 A. R. 



36 

705 
402 

455 
£63 
348 
740 
70 
35 
538 
805 
556 
332 
395 
598 
2 
71 
135 
150 
680 
960 
793 
474 
£86 
662 



»•• f 






•IT. 



Kain, Sheppard vv 

■^ V. Walke, 

.Kavanaugh, Connally 

V. Thompson, 

Kavcnagh v. Weedon, 
Keath v.' Patton, 
Keebles v. Ford, 
'Keeland. Evans v. 

V. Harper, 

Keenan, Starke v. 
- — ■ — , Strange v. 



-Keener, Moody 



Keith V. Estil!, 

-, Hester v. 

Keilar, Sprowl v, 

; University v. 

Kellogg, Clements v. 
Kelly, Badger v. 

, Covington v. 

v. Governor, 

, Johnson v. 

v. Kelly, 

, Martin v. 

— , Mock V. 1 

V. Owen^ 

'■ — , Renfro v. 

1— H 



%♦ • •.».; 



9 A. R. 
12 A. R. 

11 A. R. 
16 A. R. 

1 A. R. 

2 S. 

5 A. R. 

9 A. R. 

10 A. R. 

5 A. R. 

8 A. R. 

12 A. R. 
, 9 P. 

•'-> '7 P. 
9 P. 

1 A. R. 
4 S. & P. 

1 A. R. 

1 A. R 
10 A. R. 

6 A. R. 
14 A. R. 

2 S. 

9 A. R. 

1 S. 

. 3 A. R. 

M. 

10 A. R. 



119 

184 
160 
817 
£31 

38 
183 

42 
178 
590 
816 
290 
£52 
218 
069 
316 
382 
400 
330 
944 
860 
541' 
4tO i 
908 I 
198! 
387 ! 
252 
338 1 



Kelly v. Renfro, 

v. Smith, 

, Wade V. 

Kemp V. Coxe, 
V. Porter, 



Thorp, 



Kemper Navigation Co. v. 

Schieffelin, 
Kenan v. Carr, 

V. Holloway, 

V. Starke, 

Keudrick, Givens v. 
Kennedy, Abbott v.- 

— v. Bebee, 

V. Dear, 



, Derrick v. 
V. Geddes, 



- V. Harris, 

-, Hiahtower v. 

- V. Hitchcock, 
-, Howard v. 

-, Innerarity v. 

- V. Jones, 

- V. Kennedy, 



9 A. R. 325 

15 A. R. 687 

2 S. 443 

14 A. R. 614 

6 A. R.172 

7 A. R. 138 
3 A. R. 291 

5 A. R. 493 

10 A. R. 867 

16 A. R. 53 

6 A. R. 773 

11 A. R. 818 

15 A. R. 648 
5 A. R. 393 

8 A. R. 909 

4 P. 423 
6 P. 90 
4 P. 41 
8 P. £63 

3 A. R. 581 

M. 135 

11 A. R. 562 

4 P. £30 

4 A. R. 592 

2 S. 156 

11 A. R. 63 

2 A. R. 571 



Iviii 



TABLE OF CASES. 



Kennedy v. Kennedy, 

V. , 

V. Manship, 

V. McArthur, 

v. McCartney, 

V. Meador, 

V. Pickering, 

V. Rice, 

, Robertson v. 

V. Russell, 

V. Speilcer, 

V. , 



, State V. 

, Tillotson V. 

V. Townsley, 

, Wheeler v. 

Kennerly, Cook v. 
Kennon v. Bell, 

V. McRae, 

V. , 

V. , 



Kent V. Long, 



, Simington v. 

Kenum v. Henderson, 
Kernodle, Lucas v. 
Kerr, Boyett v* 

, Thornton v. 

Key V. Boyd, 

V. Vaughn, 

Keyser, Pitts v. 
Kibbe, Goodtitle v. 

, Pollard V. 

Kidd, Cromwell V. 

V. King, 

V. Porter, 

, Tullis V. 

Killcrease, Bell v. 
Killen, Sims v. 
Killough V. Steele, 

, Wade V. 

, V. 

Kilpatrick, Roberts v. • 
Kimbell, Burt v. 
Kimmey v. Campbell, 
King V. Armstrong, 

, Bell V. 

, Brazier v. 

•, Broome v. 

V. Bucks, 

V. Cabiness, 

, Calhoun v. 

, Carleton v. 

• V. Crocheron, 

. V. Dougherty, 

, Faris v. 

, Graham v. 

— — V. Green, 



3 A. R. 434 

8 A. R. 391 

1 A. R. 43 

5 A. R. 151 

4 P. 141 

1 S. & P. 220 

M. 137 

1 A. R. 11 

1 S. 245 

■ M. 77 

• 4 P. 272 

4 P. 428 

A. R. 31 

A. R. 407 

R. 239 

R. 

R. 

M. 

&P. 



King 



1 

5 
16 A. 

1 A. 
12 A. 



292 
42 



3 S. 



249 
2 P. 389 
7 P. 175 



A. R. 
A. R. 



6 A. 
8 A. 

6 A. 
2 A. 

7 A. 
6 A. 



295 
44 
100 
691 
132 
199 
9 
823 
154 



R, 
R, 
R, 
R, 
K 
R, 

10 A. R, 
15 A. R. 497 

1 S. 154 

1 A. R. 403 

9 P. 712 

13 A. R. 576 

5 A. R. 84 

13 A. R. 91 

12 A. R. 648 

11 A. R. 685 

12 A. R. 497 
P 



& 



& 



1 A. 
14 A. 

8 
16 A. 

10 A. 

11 A. 

12 A. 
5 A 

1 S. & P. 472 

14 A. R. 822 

2 S. 487 

1 S. 255 

15 A. R, 563 

2 S. 133 



262 
P. 431 
P. 450 
P. 96 
P. 137 
R. 92 
R. 293 
P. 147 
R. 730 
R. 818 
R. 217 
R. 598 
R. 523 



V. Griffin, 
, Hardwick v. 
, Harrison v. 
, Kidd V. 

■, Lindsay V. 

■ V. McLoskey, 
•, Mock V. 

■ V. Moore, 
• V. Mosely, 

■ V. Murphy, 
-, P. and M, Bank v. 
-, Puckettv. 

- V. Shackleford, 

- V. , 



6 A. R. 

IS. 

M. 

5 A. R. 



3 P. 

4 A. R. 
15 A. R. 

6 A. R. 

5 A. R. 
1 S. 

9 A. R. 

2 A. R. 

6 A. R. 
13 A. R. 
15 A. R. 

3 P. 

M. 

10 A. R. 

3 A. R. 
12 A. R. 

M. 

Kinney v. Mallory, 3 A. R. 

Kinsey, B. B. at Decatur v. 5 A. R 



V. Smith, 

V. Walton, 

, Whiting V. 

Kingsland, Abney v. 
Kinkle, Steele v. 
Kinnard y. Thompson, 
, Williarns v. 



Kirby, 



Gazzam v. 
Price V. 
Kirk V. Glover, 

V. Suttle, 

Kirkman v. Harkins, 

, Lane v. 

V. Vanlier, 

Kirkpatrick v. Bethany, 
, Caldwell v. 



Kirksey v. Bates, 

V. , 

V. -Jones, 



V. Kirksey, 
V. Mitchell, 
V. Prior, 
, Terrell v. 
Hobson V. 



Kissam 

Kitchen v. B. B. at Mobile,14 A 



P. 
1 A. R. 
) S. & P. 

6 A. R. 

IP. 
M. 

7 A. R. 
1 A. R. 

6 A. R. 

7 P. 
1 A. R. 

7 A. R. 
10 A. R. 
10 A. R. 

8 A. R. 
8 A. R. 

13 A. R. 

14 A. R. 
8 A. R. 

R. 



Kizei- V. Lock, 
Knapp V. McBride, 
Knight, Cawthorn v. 



V. Godbolt, 

— ^: -, Governor v. 

, Smith V. 

, Speight V. 

V. Turner, 

Knotts V. Tarver, 
Knox V. Abercrombie, 



Alexander v. 

B. B. at Mont'y v, 

Harbin v. 



9 A. R. 

7 A. R. 
11 A. R. 
11 A. R. 

7 A. R. 

8 A..R. 
11 A. R. 
11 A. R. 
11 A. R. 

8 A. R. 
A. R. 
A. R. 
9 P. 
A. R. 
A. R. 
A. R. 



11 
3 



387 
312 
364 

84 
406 

91 

66 
160 
610 
228 
279 
570 
423 
435 
264 
289 
122 
355 
352 
487 
196 
626 
9 
253 
184 
340 
679 

22 
411 
217 
201 

60 
529 
303 
622 
579 
839 
131 
402 
190 
209 
357 
233 
269 

19 
579 
268 
304 
297 
618 
461 
636 
743 
997 
728 
629 
503 
148 
675 



TABLE OF CASES. 



lix 



K.nos, Little v. 15 A. R. 576 

, Powell V. 16 A. R. 364 

V. Rives, 14 A. R. 249 

, Steele v. 10 A. R. 608 

, Withers v. 4 A. R. 138 

Koger V. Weakley, 2 P. 516 

Koin T. Mcllvaine, 1 P. 285 

Kolisenski, Jones v. 11 A. R. 607 

Kornegay v. Salle, 12 A. R. 534 

_ V. White, 10 A. R. 255 



Krebs, Lyon v. 

, McVay v. 

-, Nicholas v. 



Kreps, Harris v. 

■, State V. 



Kyle V. Bostick, 

V. Evans, 

V. Gray, 

, McMahan v. 

V. State, 



9 A. R. 426 

7 A. R. 456 
11 A. R. 230 

M. 184 

8 A. R. 951 

10 A. R. 589 
3 A. R. 481 

11 A. R. 233 

9 P. 507 
10 A. R. 236 



Labrouse, Hair v. 

, Lacy V. 

-Lacy V. Holbrook, 

, Hitt V. 

V. Le Bruce, 

, Mayor of Tusk'a 

V. Rockett, 

— V. Simpson, 

, Stiles V. 

Ladd V. Chotard, 
Ladiga, Rov^land v. 
Laird, Hodges v. 
Lake v. Gilchrist, 

V. Governor, 

Lamar v. Minter, 

, Morgan v. 

V. Nicholson, 

Lamb v. Wragg, 
Lambert, Hill v. 
Lambeth v. Garber, 
Lamkin, Bell v. 

'-^ — '■ V. Crawford, 

V. Phillips, 

V. Reese, 

Land v. Hopkins, 



366 

488 
678 



91 

870 
460 
153 



V. Patteson, 

Landreth v. Landreth, 



Landrum v. Brookshire, 
Lane, Bondurant v. 

, Cotton V. 

, English V. 

. , Gilbert v. 

V. Kirkman, * 

Lang, Bartlett v. 



-, Brown v. 



-, Hunley v. 

•V. Pettus, 



Langdon v. Brumby, 



V. Lockett, 
V. Roane, 



10 A. R. 548 
6 A. R. 904 
4A. R. 88 

3 A. R. 104 

6 A. R. 904 
V. 3 A. R. 618 

11 A. R. 1002 
M. 33 

7 A. R. 17 

M, 
9P 

10 A. R, 

7 A. R. 955 

2 S. 395 

13 A. R. 31 
9 A. R. 231 

7 P. 158 

8 P. 73 
M, 

6 A. R 
1 S. & P 

8 A.R 

9 P. 98 

7 A. R. 170 
7 A. R. 115 

4 A. R. 427 

M. 14 

9 A. R. 430 
12 A. R. 640 

1 S. 252 

9 P. 484 

M. 320 

1 P. 328 

- 3 P. 267 

M. 411 

2 A. R. 161 

2 A. R. 401 

4 A. R. 50 

14 A. R. 719 

5F 

11 A. R, 
7 A.R. 

10 A. R. 747 
6 A. R. 727 
6 A. R. 518 



Langdon v. Stephens, 6 

Langford v. Cummings, 4 
Lanier, B. B. at Decatur v. 7 
Lapretre, Hogan v. 
Lapsley v. Goldsby, . 14 

Larcher v. Scott, 2 

Larkin v. B. B. Montgom'y, 

V. Rhodes, 

Laroque v. Russell, 



154 
37 
53 



Lary, Nance v. 
Lassabe, Mialhi v. 
Lassiter, Crosby v. 
Lassley, State v. 
Latham v. Berry, 
Lattimore, Johnson v. 

-^- V. Williams, 

La Tourette v. Baird, 
Laughlin, Gibson v. 
Lavender y. Lee, 
Lawler, Givens v. 
Lawrence, Foote v. 

, Turner v. 

— V. Ware, 

Lawson v. Orear, 



— '■ V. Townes, 

Lay, Foreman v. 

, Hall V. 

, Stiles V. 

Layman v. Hendrix, 
Lazarus v. Lewis, 

V. Shearer, 

, Turner v. 

Lea V. B. B. at Mobile, 
, Robertson v. 



State V. 



Leach v. Williams, 
v. West, 



Leachman, Perrine v. 

, Snedicor v. 

Leavens v. Butler, 
, P. ,and M. Bank v. 



16 
10 
10 



A. R. 730 

A.R. 46 

A. R. 595 

1 P. 392 

A.R. 73 

A. R. 40 

9 P. 434 

5 P. 195 

A. R. 798 

A. R. 352 

A. R. 149 

A. R. 370 

A. R. 712 

A. R. 201 

7 P. 526 
1 P. 110 

A. R. 200 
A. R. 428 
M. 325 
M. 182 
A. R. 688 
A. R. 543 

1 S. 483 
A. R. 427 

1 S. 33 
A. R. 156 
A. R. 784 
A. R. 373 
A. R. 784 
A. R. 529 
A. R. 795 
A. R. 212 
A. R. 457 
A. R. 718 
A. R. 875 

8 P. 119 
1 S. 141 
1 S. 138 

A. R. 602 
A. R. 759 
A. R. 250 
A. R. 140 
A. R. 330 
8 P. 380 
A. R. 753 



Ix 



TABLE OF CASES. 



Leavens, Ticknorv. 
Leavitt v. Dawson, 
, Lyon Y. 

V. Smith, 



Le Barun v. James, 
Lic.att v.. Mercliants' I. Co. 
, Roehon v. 



Salle, 



, Snioot V. 

V. Stewart, 

V. Strang, 

Ledbetter v. Castles, 
V. Stat?, 



2 A. R. 

4 A. R. 

3 Ai»R. 
7 A. a. 

14 A. R. 
10 A. IL 

4 A. R. 
16 A. R. 

1 S- 

2 S. 
1 P* 

3 P. 

1 S. 

2 S. 
2S. 

A. R. 



Ledlow, Beall v. 
Lady.ird v. Johnston, 

V. Manning, 

, Ohio L. I.&T. Co, 

, Saint V. 



11 

10 A. R. 
14 A. R. 
16 A. R. 
1 A. R. 
8 A. R. 
.14 A. R. 
Lee V. Ad kins, • M. 

V. BankofColumbus,2 A. R. 

V. Brvan, 3 A. R. 

, Butler Y. 11 A. R. 

Y. Campbell, 4 P. 

Y. , 6 P. 

16 A. R. 

10 A. \{. 

6 A. R. 

3 A. R. 

3 A. R. 

14 A. R. 
10 A. R. 

8 P. 
16 A. R. 

8 P. 
4 S. & P. 

15 A. R. 
3 S. & P. 

1 S. 

12 A. R. 

1 S. & P. 

Legatees of Horn y. Grayson, 7 P. 



Davis, 

Fontaine, 

Y. 

, Hallett V. 

Y. II imilton, 

, Lavender v. 

Y. Matthews, 

■ , Parsons v. 

Y. Smyley, 

, Teat v. 

v. White, 

Lees v. BroAvnings, 
Leeds, Rhodes v. 
Leek, Parker v. 
Leftwitch, Baldwin v. 
, Moore v. 



Leigh Y. Lightfoot, 
— Y. Smith, 



11 A. 
5 A. 

10 A. 
8 A. 



v. State Bank, 

Leiper v. Gewin, 

Leith, Falkner v.^ 15 A. R. 

Lemons, Callison v. ^ 2 P. 

Lenoir y. Rainej^ 15 A. R. 

Leonard v. Board of Eng's, 10 A. R. 

, Glidden v. 4 P. 

Leowie, Dukes v. 13 A. R. 

Lesesne, Toulmin v. 2 A. R: 

Lesne, Palmer v. 3 A. R. 

v. Pomphrey, 4 A. R. 

Lester v. Bank of Mobile, ,7 A. R. 



149 

355 
430 
175 
279 

92 
687 
177 
609 
429 
287 
115 
590 
474 
£30 
149 
241 
51 3 
548 
153 
166 
244 
187 

21 
278 
885 
198 
2-19' 
516 
755 
889 

28 
529 
688 
682 
125 
773 
507 
178 
495 
212 
523 
838 
254 
270 
935 
583 
339 
326 
9 
145 
667 

52 
194 
457 
359 
741 

77 
490 



Lester A^. Governor, 
Leverett, G.-e.'^i am v. 
Leverich v. Bates, 
Levert v. P. and M. Bank, 

Y. Redwood, 

Levi, Harbin v. 
Levins, Brown v, 
Lewen, Hunt v. 

— v. Smith, 

v. Stone, 

L iwis. Banks v. 

V. Bibb, 

V. Bradford, 



12 A..R. 624 

10 A. R. 384 

6 A. R. 480 

8 P. 104 

9 P. 79 
6 A. R. 399 

6 P. 414 
4 S. & P. 138 

7 P. 428 

3 A. R. 485 
8 A. R. 395 

4 A. R. 599 
4 P. 84 

8 A. R. 632 
V. B. B. at Montg'y, 6 A. R. 496 
, Carpenter v. 6 A. R. 682 



Cook V. 
Cuthb-rt V. 
Deshazo v. 
Edwards v. 
V. Goguette, 
Gullett Y. 
Y. Hudson, 



16 A. R. 67 

6 A. R. 262 

5 S; & P. 91 

16 A. R. 813 

3. b. & P. 184 

3 S. 23 

6 A. R. 



Y. Int. of Gainesville, 7 A. R. 
, Jordan v. 



L izarns v. 
V. Lewis, 



2S 
•^p 'A. R 



, Lightfoot Y. 
, Long v. 

Y. Love, 
, MrWhorter ^ 

v. Moorman, 
, Munn Y. 
, O'Bi'ien v. 

Y. Peck, 
, Pope v. 

V. Post, 
, Ilea Y. 

Y. Sheffield, 

v. Stein, 
, Stewart v. 
, Ward Y. 
, Williams v. 



463 

85 

426 

457 

M. 95 

M. 35 

1 A. R. 475 

1 S. & P. 

1 A. K. 

4 A. R. 



229 
335 
198 



7 P. 522 
2 P. 24 



8 A. 

10 A. 

4 A. 

1 A. 



666 
142 

487 
65 



1 A 
16 A 
16 A 



M. 382 
R. 134 
R. 214 



Light, Salle v. 



R. 

1 S. 

2 S. 
A.. R. 



Liohtfoot V. B. B. at Decatur. 2 A, 



, Dearing y. 

, Jones V. 

, Leigh Y. 

v. Lewis, 

Y. Strahan, 

Ligon, Sto.te Y. 
Limerick, Butler v. 
Lineh v. McLeraore, 
Lindsay, Bissell v. 

— , Governor v. 

v. King, 

, McGehee y. 

V. Perry, 



16 A. 
10 A. 



(34 
26 
41 

roo 

545 
28 
17. 



11 A. R. 935 



1 A. 
7 A. 



15 A 

9 A. 

14 A 

6 a' 



R. 475 
R. 444 
P. 167 
115 

632 
162 
658 
406 
16 



1 A. R. 203 



TABLE OF CASES. 



I XI 



Lindsay, v. State, 

. , Terry V. 

Linton, Greene v. 
Lipscomb. Brown v. 
Lister V. Vivian. 
Litchfield V. Allen, 

V. Falconer, 

, McClure v. 

Littell V. Zuntz, 
Little V. Beazley, 

, Brown v. 

— : , Callison v. 

V. Heard, 

V. Knox, 



15 A 

■3S. & 

7 

9 

8 

7 A. 

A. 

A. 



Lloyd, Goodwyn v. 

V, Pace, 

-. V. Stat<>, 

Locke V. Garretts 

, Jordan v. 

— '■ , Kizer T. 

V. Miller, 

T, Noland, 



2 
11 

2 A. 

2 A. 

9 A. 

2 

16 A. 
15 A. 

6 A. 
Steamer Tallapoosa, 9 



Livingston v. Lucas. 



, Robertson v. 

-^, 'Smith V. 
V. Winston, 



Jiockettv. Child, 

— ^, Langdon v. 

Lockard v. Lockard, 
Lockhard v. Avery, 
Lookart, Barton v. 

, Graham v. 

V. Johnson, 

V. McElroy, 

, JMyatt V. ' 

— ; » V. 

, Philips V. 

V. Wyatt. 

Loekwood v. Nelson, 
, Pond v. 

Lodanc, Fa ires v. 
Lodano, Twelves v. 
Loftin, Jordan v. 

^- v. McLemore, 

, Oliver v. 

Logan V. Austin, 

— V. Barclay, 

, Boiling V. 

, Cannon v. 

, Hair v. 

v. Hodges, 



V.Logan, 

—7 , Rowland v. 

Loggins, Clemens v. 



8 

12 A. 

16 A. 

9 A. 

3 S. & 
11 A. 
IG A. 

G A. 

4 A. 

10 A. 

11 A. 
G A. 

IG A. 

8 A.- 
2S. & 
. "8 A. 

9 A. 
4 A. 

13 A. 
9 A. 

1 A. 

10 A. 
16 A. 

8 A. 

11 A. 
IDA. 
15 A. 
ISA. 

1 

4 A. 

1 

3 A. 

4 A. 

5 

10 A. 
7 A. 
6 A. 

13 A. 

11 A. 
, lA. 

2 A. 



43 
317 
133 
472 
375 
779 
280 

25 G 
703 , 
410 

89 , 
358^^ 
576, ' 
147 1 
111 I 

00 7 

637 ^ 

34 
698 I 
■254 1 
2G9 ' 

13 ' 
249 

52 
24G i 
2S8 ' 
849 \ 
640 i 
727 I 
423 I 
502' 
109 
9 
223 
572 
338- 

91 
521 
231 
294 
GG9 
567 

50 
732 
547 
133 
240 
476 
361 
169 

77 
431 

66 
699 
653 
663 
622 
514 



Logwood V. HuntsvilleBank, 



Lono- 



Brown, 
v.Easley, 

. Eddings v. 

, Kent V. 



M. 

R. 
, R. 
, R. 
, R. 

R. 



V. Lewis, 
, Lvons V. 
, 3Iay V. 
, Rainey v. 
. Wallis V. 



Longmire, Andress v. 
Longmin, Hunter v. 
Longstreth, Phillips v 
Longworth, Campbell 
Loomis V. Allen, 
Looney v. Bush, 

, Judge Madison Co, v. 2 S. & P 

Lorant, Lyon v. 
Lore V. McRae, 
V. State, 



4 A 

13 A 

10 A 

8 A 
6 A 

1 S. & P. 

6 A. R. 
G A. R. 

9 A. R. 
15 A. R. 

11 A. R. 
M. 

14 A. R. 
3 S. & P. 

7 A. R. 
M. 



Love, Davidson v. 

r, Lewis v^ 

, McCord y. 

V. Powell, 

V. Simmons, 

Loveiov, Nelson v. 
Lovdfv. Caldwell, 



Lovett V. Lovett, 
Loving, Rivers v. 
Lowe V. Derrick. 
; — , Holloway v. 

V. Jones, 

, McKinney v. 

^, Morris v. 

, Wheat V. 

Lownsberry v. Bullard, 
Lowry v. Armstrong, 

, Booker v. 

V. Clements, 

V. 3Iurrell, 

, Pruitt V. 

— , Steele v. 

— V. Stewart, 

V. Stowe, 

V. Western Bank, 

Lowther v. Chappell, 
Lucas V. Atwood, 

V. Bank of Darien, 

V. Bank of Georgia, 

V. Copeland, 

V. Godwin, 

V. Governor, 

V. Hamilton, 

V. Hickman, 

V. Hitchcock, 

V. Kernodle, 

, Livingston v. 



3 A. R. 

12 A. R. 

4 A. R. 
1 A. R. 
1 A. R. 

3 A. R. 

5 A. R. 

10 A. R. 

14 A. R. 

4 A. R. 

11 A. R. 
1 S. 
9 P. 

1 A. R. 
7 P. 

15 A. R. 

1 P. 
4 S. & P. 

7 A. R. 
M. 

3 S. & P. 

1 A. R. 
9 A. R. 

2 P. 

1 P. 

6 A. R. 

8 A. R. 
7 P. 

7 A. R. 

8 A. R. 

3 S. 
2S. 
2S. 
2S. 

6 A. R. 
6 A. R. 

13 A. R. 

2 S. 

2 A. R. 
2 A.R. 
6 A. R. 



— <> 
622 
239 
203 

44 
100 
229 
103 
107 
754 
738 
166 

99 

Ool 

343 
706 
413 

70 
151 
444 
173 
loo 
335 
107 

58 
113 
568 
684 
763 
395 
415 
246 
488 
545 
129 
123 
311 
315 
297 
399 
422 
280- 
101 
124 
103 
483 
120 
353 
378 
280 
147 
151 
831 
826 
447 
111 
287 
199 
147 



Ixii 



TABLE OF GASES. 



Lucas V. Price, 

, Sayre v. 

— ■■ , State Bank v. 

V. Thorington, 

V. , 

Luckie v. Carothers, 
Lucy V. Beck, 
Lukens, Hitchcock v. 
Lumpkin, Hester v. 
Lundie, Martin v. 
Lunsford v. Baskins, 

, Calhoun v. 

V. Richardson, 

Lyle, Brasher v. 

, Wright V. 

Lynch v. Bragg, 
Lynes, Ray v. 
V. State, 



4 A. R. 679 

2 S. 259 

4 P. 252 

5 A. R. 504 
7 A. R. 605 

5 A. R. 290 

5 P. 160 
8 P. 333 

4 A. R. 509 

6 A. R. 427 
6 A. R. 512 

4 P. 345 

5 A. R. 618 
13 A. R. 524 

4 A. R. 112 
13 A. R. 773 
IDA. R. 63 

3 P. 348 



Lynes v. State, 
Lyon, Badger v. 
V. Boiling, 

V. , 



, Chandler v. 

V. Elliott, 
, Goodwin v. 

V. Goree, 

V. Hunt, 

V. Krebs, 

V. Leavitt, 

V. Lorant, 

V. Malone, 

V. , 

, Shields V. 

V. State Bank, 



Lyons v. Long, 



5P 

7 A. R, 
9 A. 

14 A, 

8 A 
3 A 

15 
11 

9 
3 
3 



236 

564' 

R. 463 

R. 753 

R. 35 

R. 654 

4 P. 297 

A. R. 360 

A. R. 295 

A. R. 426 

A. R. 430 

A. R. 151 

4 P. 414 

4 P. 497 

M. 278 

1 S. 442 

12 A. R. 508 

6 A. R. 103 



M 



• ^4 



Mabe, Foster v. 

— , McCary v. 

Mal)ry, Henderson v. 

V. Ilerndon, 

, Prosnall v. 

Machen v. Machen, 
Mackay v. Dodge, 
Macon v. Owen, 
Macy, Scott v. 
JMaddan, Cooper v. 
:Madden v. Blythe, 
;Maddera v. Smith, 
;Madding, Tubb v. 
;Maddox v. Brown, 
Madison College v. Burke, 
Magee v. Billingsley, 

, Bunnell v. 

. V. Carpenter, 

, Chaudron v. 

Y. Childers, 

V. Copcrthwaite, 

V. Erwin, 

V. Fisher, 

V. Toland, 

V. Toulmin, 

— , AVyatt V. 

, Zurcher v. 

Magoffin V. Westbrook, 
Mahan, State v. 
Maher v. State, 
Mahone, Nuckols v. 

V. Reeves, 

V. Yancey, 

Mahoney v. Chandler, 
Mahorner, Harrison v. 
Majors, "Winston v. 
Mallory, Kinney v. 



15 
5 
3 
3 
6 



4 A. R. 

7 A. R. 

13 A. R. 

8 A. R. 

3 P. 
A. R. 
A. R. 
A. R. 
A. R. 
A. R. 

7 P. 
3 S. 

M. 

9 P. 

A. R. 

A. R. 

A. R. 

R. 

R. 

R. 

R. 

P. 

R. 

8 P. 

5 A. R. 
3 A. R. 
2 A. R. 

M. 

2 A. R. 

1 P. 
15 A. R. 
11 A. R. 

14 A. R. 
7 A. R. 

14 A. R. 

6 A. R. 

3 A. R. 



9 
4A 

8 A 

6 A 

10 A 

5 S. & 

8 A, 



402 
350 
713 
848 
105 
373 
388 
116 
250 
431 
258 
119 
129 
118 
494 
679 
433 
469 
570 
196 
966 

54 
320 

36 
141 

94 
253 

58 
340 
265 
212 
345 
395 
732 
829 
659 
626 



Mallory v. Matlock, 



V. Stodder, 



Malone, Bullock v. 

, Caller v. 

V. Donally, 

V. Eastin, 

, Flant V. 

V. Hamilton, 

V. Harper, 

V. Hathaway 

, Lyon V. 



, Phillips V. 

V. Stud, 

, Tombeckbee 

Maltbie, Brooks v. 
, Burdiue v. 



Manasse, Allen v. 
Maun V. Bissent, 

Y. Buford, 

, Currie v. 



Manning, Carrington 

, Carter v. 

, Ice V. 

, Ledyard v. 

Y. Manning, 

Y. Norwood, 

, Taliaferro v. 

, Tatum V. 

, Watkin^ v. 

Manship, Kennedy v. 
Mansony, ex parte, 

, Stephenson v. 

V. Toulmin, 

V. U. S. Bank, 



Marbury, Bradford v 



, 7A. R. 757 

10 A. R. 595 

6 A. R. 801 

M. 400 

1 S. & P. 305 

M. 12 

2 P. 182 
M. 92 
M. 286 

2 S. & P. 454 

3 S. 29 

4 P. 414 
4 P. 497 

M. 110 

M. 360 

Bank v. 1 S. 269 

4 S. & P. 96 

3 S. & P. 417 
4 A. R. 554 
4 A. R. 731 
3 A. R. 312 

6 A. R. 531 
V. 13 A. R. 611 

7 A. R. 851 
3 A. R. 121 
1 A. R. 153 

8 A. R. 138 
1 A. R. 429 
3 A. R. 670 

9 A. R. 144 

3 A. R. 707 
1 A. R. 43 
1 A. R. 98 

4 A. R. 317 
6 A. R. 474 
4 A. R. 735 

12 A. R. 520 



TABLE OF CASES. 



Ixiii 



Marchbanks v. Rogers, 
Mardis, Caruthers v. 
V. Shackleford, 



V. Smith, 

Marler v. Marler, 

, State V. 

Marlow, Calvert v. 
Marriott v. Givens, 

, Stringfellow v. 

Marr v. Foster, 

V. McCullough, 

V. Southwick, 

Marrs v. Gantt, 
, McWhorter v. 



1 S. 148 

3 A. R. 599 

4 A. R. 493 
6 A. R. 433 
2 A. R. 382 
6 A. R. 367 
2 A. R. 43 
6 A. R. 337 
8 A. R. 694 
1 A. R. 573 

1 S. 
6 P. 

2 P. 
M. 
M. 

1 S. 



Marsh v. B. Bank at Mobile, 10 A. R 

, Prewett v. 1 S. & P. 

Marshall, Branch Bank at 

Hunts villa v. 4 A. R. 

V. Gantt, 

, Harrison v. 

— , Riley v. • V. iJ^ 

, Starke v. 

, State V. 



57 

507 

351 

406 

376 

63 

57 

17 



15 A. R. 
6 P. 

^ 5 A. R. 
3 A. R. 
8 A. R. 
14 A. R. 411 
11 A. R. 458 
8 P. 551 

16 A. R. 806 



60 
682 

65 
682 

44 
302 



Martin, Tenison v. 

V. Townsend, 

V. White, 



, Traylor v. 

V. White, 

V. Wood, 

Marston v. Bank of Mobile, 10 A. R. 284 

, v. 7 A. R. 108 

V. Carr, 16 A. R. 325 

V. Forward, 5 xi. R. 347 

Martin, Ashurst v. " 9 P. 566 

V. Avery, 8 A. R. 430 

V. Baldwin, 7 A. R. 923 

V. B. B. at Mobile, 10 A. R. 182 

V. B. B. at Decatur, 15 A. R. 587 



-, Bogan V. 
-, Boyd V. 
-, Caperton v. 

- V. Chapman, 

- V. , 

-, Clopton V. 

- V. Dortch, 

-, Emanuel v. 

- V. Everett, 
-, Gayle v. 
-, Harrell v. 



-, Harris v. 

- V. Hill, 

- V. Kelly, 

- V. Lundie, 
-, Payne v. 

- V. Pope, 

- V. Price, ) 

- V. Searcy, v* 
-, State Bank v. 



A. R. 807 

A. R. 700 

A. R. 217 

A. R. 278 

6 P. 344 

A. R. 187 

1 S. 479 

12 A. R. 233 

11 A. R. 375 

3 A. R. 593 

4 A. R. 650 
6 A. R. 587 
9 A. R. 895 
8 A. R. 43 

1 S. 198 
6 A. R. 427 

1 S. 407 

6 A. R. 532 

,; M. 68 

. ' .3 S. 50 

4 A. R. 615 



V. 



V. Woodall, 

Marvin, Morrison v. 
Mason, Bell v. 

V. Brazier, 

V. Ci'aig, 

, Maury v. 

, McLeod V. 

V. Moore, 

V. Parker, 

— , Roberts v. 

V. Smith, 

V. Watts, ' 

Massey, Brown v. 

— , Dean v. 

, Halsill v. 

V. Rogan, 

V. Steele, 

V. Walker, 

V. , 



21 
329 
473 
162 
215 
244 
797 
334 



13 A. R.. 
2 S. 

1 S. 

2 S. 
IP. 

1 S. & P. 

6 A. R. 

10 A. R. 
1 A. R. 635 

3 S. &. P. 389 

8 P. 211 

5 P. 223 

12 A.-R. 578 

1 A. R. 684 

1 A.-R. 373 

1 S. 275 

7 A. R. 703 

3 S. 

7 A. R. 

2 A. R. 
6 A. R. 

11 A. R. 

8 A. R. 



226 
601 
300 
647 
340 
167 
10 A. R. 288 



Masters v. Eastis, 
Masterson, Carmack v. 

V. Girard, 

Masterton v. Beasle}-, 
Mather, Cain v. 
Matlock, Mallory v. 



Matthews, Allen v. 
, Evans v. 



10 A. R. 

3 P. 

3 S. & P. 

10 A. R. 

1 S. & P. 

3 P. 

7 A. R. 
10 A. R. 

1 S. 

8 A. R. 

9 A 
10 A 

9 P. 
1 S. 

2 S. & P, 
14 A. R, 



30 
368 
411 

60 
247 
224 
75T 
595 
273 

99 
R. 643 
R. 682 
370 > 
384 
23^' 
702. 



, Lee V. 

, State V. 

, Thirman v. 

V. Turner, 

Mauldin v. Armistead, 

v.B. Bank at Mobile, 2 A. R. 502 
4 A. R. 47T 

13 A. R. 674 

14 A. R. 814 

11 A. R. 977 

12 A. R. 499; 
3 A. R. 103 

8 P. 211 
2 S. 472 

1 A. R. 535 
1 A. R. 433 

9 P. 410 
1 S. 514 

1 S. & P. 221 

1 S. 425 

2 P. 414 
12 A. R. 673 
14 A. R. 263 

6 A. R. lor 



Chambers 

, Harris v. 

V. Mitchell, 

, Robinson v. 

MauU V. Hays, 
Maupay v. Holley, 
Maury v. Mason, 

V. Olive, 

Maverick v. Donaldson, 

V. Duffee, 

Maxey, Burnett v. 
Maxwell v. Eason, 
, Smith V. 



May, Caldwell v. 

V. Eastin, 

, Hawkins v. 

, Huckabee v. 

V. Long, 



Ixiv 



TABLE OF CASES. 



May V. May, 



, McAlpiii V. 
V. Xaboi'S, 
V. llijliertson, 
y. State, 
, Watson V. 
, V. 



'9 
6 



Mayberry v. State, 
Maytield v. Allen, 

■ V. Cliftun, 

, Elliott V. 



— , Hunt V. 

^, Perkins v. 

Maynard v. Johnson, 
Mayo, Borland v. 

V. Stoneum, 

Mayor Columbus v. Roger 

of Mobile v. Allan-e 

' V. Emanuel, 

V. Eslava, 

V. Farmer, 

, V. 

Moore v. 
-, Payne v. 
V. Richardson 
y. Rouse, 

, State y. 

V. Yuille, 

of Tuskaloosa, C; 
roll y. 

y. Lacy, 

, Ready y. 

Wrijvht, 



Ma^'s y. Hassell, 
McAden y. Gibson, 
McAfee, Click. v. 

■ , Trotter v. 

McAlexander, Callahan 

, Wright V. 

McAlpin y,. May, 

y. Pool, 

MoArthur, Kennedy y. 
McBarnett v. Breed, 
McBeath v. Spann, 
McBeth y. McBeth, 

, Weeks y. 

McBride, Knapp v. 

y. Thompson, 

McBroom, Freeman v^ 

y. Governor, * ' 

V. , ? 

y. Rives, 

. y. Sonunerville, 

, Williams y. 

McCain v. McCain, 
y. Wood, 



15 A. R. 

1 P. 
IS. 

G A. R. 

13 A. R. 
A. R. 
A. R. 
A. R. 

'= 1 S. 

'■', M. 

3 S. 

3 A.,R. 

4 A. R. 

2 s; 

5 P. 

4 A. R. 
8 A. R. 

2 A. R. 
■s, 10 A. R 
, 14 A. R. 

9 P. 
9 P. 

5 A. R. 
8 A. R. 

1 S. 

4 A. R. 
, 1 S. & P. 

8 A. R. 
5 P. 

3 A. R. 
ar- 

12 A. R. 

3 A. R. 
G A. R. 

2 P. 
4 S. & P. 

5 A. R. 

7 P. 

1 S. 

1 A. R. 

11 A. R. 

1 S. 

5 A. R. 

G A. R. 

7 A. R. 

11 A. R. 

14 A. R. 

7 A. R. 

8 A. R. 

11 A. R. 

;, ' 4 p; 

f' G P. 

is. 

2'S. 
1 S. 

12 A. R. 

4 A. R. 
7 A. R. 



177 
229 
520 
24 
8G 
1G7 
133 
177 
2GG 
'-74 
375 

i C-t 

417 
li4 
18-- 
UG 

104 
390 
. 37 
400 
403 
577 
738 
279 
284 

t> 't O 

12 
515 
279 
137 

173 

G18 

3"j ( 

230 

222 

341 

G2 

59 

3G6 

23G 

5£0 

316 

151 

47 G 

201 

59G 

474 

19 

650 

943 

90 

32 

72 

515 

192 

510 

258 

800 



McCaleb y. Price, 
McCall, Bethea y. 



12 A 
3 A 
5 A 
10 A 
12 A 
14 A 
4 



v. McRae, 

, Moss V. ' 

y. Sinclair, 

, State y. 

xVIcCann, Ilutchins y 

, W(jods y. 

McCarta, Hudnall y. 
iMcCartney v. B^ Bank Hunts 
ville, '^ 

v. Calhoun,- 

v. Kennedy, 



R. 

R. 

R. 

R. 

R. 

R. 

i. R. 

7 P. 

3 A. R. 

M. 



iMcCarty, Frisbie V. 

, Skinner v.- 

McCary v. Mabe, 
McCaskle y. Amarine, 
xMiCausland y. Drake, 
y. Neal, 



JMcClannahan, Watson t. 
McC.ung, Ely y. 
McClure v. Colclough, 
V. , 



— — - — y. Litchtield, 

, Reynolds v. 

McColl, McKenzie y. 

•: -^ y. Oliver, 

McCfollum y. Hogan, 
v. Hubbert, 



McComas v. Gannard, 
McConnell, Davis y. 
White, 



McCook, Roper v. 
McCord v. Boyd, 

, Comegys v. 

y. Love, 

Williams, 



MeCo-wn, Gary v. 
McCoy, Andrews v. 
, Goodwin y. 

Moss, 



McCrary, Scott y. 
McCraw, Cawthorn y. 
McCrory v. Boyd, 

■ — , Hosea v. 

Sniith, 



McCullough, Childress y. 
— '. — ; — :, Cummings y. 
— — ^, Marr v. 

y. Walton, 



Mfc-Curry v. Hooper, 
McCutjhen v. McCutchen, 



6 

5 

II 

13 



1 

13 



MeDade, State Bank v. 
McDaniel, Gates v. . 
. V. 



3 A. R. 

11 A. R. 
4 P. 

I S. & P. 

2 P. 
7 A. R. 

12 A. R. 

3S. 
3 S. & P. 

13 A. R. 

4 P. 
A. R. 
A. R. 
A. R. 
A. R. 
A. R. 

1 S. 

A. R. 

A. R. 

13 A. R. 

G A. R. 

M. 

3 S, 
M. 

7 A. R. 
12 A. R. 

II A. R. 
3 A. R. 
2 A. R. 
6 A. R. 

8 A. R. 
13- A. R. 

5 P. 
1 S. 

9 A. R. 

3 S. 
12 A. R. 

1 A. R. 

5 P. 
5 A. R. 

G P. 

11 A. R. 

12 A. R. 

8 P. 

9 P. 

4 P. 
2S. 

&P. 



4S, 



753 
449 

SOS 
313 
630- 
764 
643 
94 
61 
402 

709 

iia 

141 

56 

19 
356 

17 
344 
131* 

57 
128 
492 

65 
337 
159 
516 
510 
515 
282 
289 
221 
422 
492 
112 
318 
700 
932 - 
107 

71 
370 
920 
271 

88 
315 
519 
279 
349 
157 

54 
324 
507 
492 
823 
151 
650 
252 
211 

69 



TABLE OF CASES, 



McDaniel, Gates v. 

V. Moody, 

V, Reed, 

— ■ V. Whitman, 

McDonald v. Dodge, 

V. Elliott, 

■ V. Foster, 

, v." 

, V. 

V. Gayle, 

V. Ilusted, 

, Riggs V. 

■ ■, State V. 

McDonnel, McLeod v. 
McDougald v. Reid, 

■ , Scroggins v. 

McEldery, Herring v. 

V. McKenzie, 

McElroy, Calloway v. 

, Clarke v. 

V. Dwight, 

, Luckhart v. 

V. McElroy, 

McElyea v. Hayter, 
McEwen v. Morgan, 
McGaha, Parker v. 

, V. 

McGee, Bush v. 

V. Eastis, 

~ V. , 

— V. Sheffield, 

McGehee, Boren v. 

V. Chandler, 

V. Childress, 

, ; V. 

, Craig V. 

, Cummings v. 

• V. Dougherty, 

: — = V. Evans, 

, Fipps V. 

' , Goodwin V. 

, Greer v. 

V. Hansell, 

V. Hill, 

— V. , 



529 
219 
664 

34 
376 

98 
297 



236 
810 

382 



-, Hitchciock V. 

•, Huntsville Bank V 

-, Johnson v. 

■ V. Lindsay, 

■ V. McGehee, 
■V. , 

•, McWhorter v. 
- V. Powell, 
-, Smith V. 
■, Walke V. 
V. . 



McGill V. Hammond, 
McGintry v. Reeves, 
1— I 



3 P. 356 
3 S. 314 

12 A. R. 615 
16 A. R. 343 
10 A. R. 

1 S. 

5 A. R. 

3 A. R. 

5 A. R. 

M. 

5 A. R 
1 A. R. 641 

4 P. 449 

6 A. R 
5 A. R 
8 A. R 

5 P. 161 
2 P. 33 

3 A. R. 406 

1 S. 147 
1 S. 149 

4 A. R. 572 

5 A. R. 81 

2 P. 148 

1 S. 190 

11 A. R. 521 

13 A. R. 344 
4 A. R. 710 

3 S. 307 
& P. 420 

6 P. 351 

P. 432 
15 A. R. 659 

2 S. 506 
M. 131 

10 A. R. 41 
9 P. 349 

10 A. R. 863 
■ 1 S. 589 

5 P. 413 
15 A. R. 232 

3 P. 398 

7 P. 537 
i. R. 17 

4 P. 170 
1 A. R. 140 

7 P. 556 
IS.&P. 306 

1 A. R. 180 
6A. R. 16 
8 A. R. 

12 A. R. 

1 S 
8 A. R 

14 A. R. 404 

11 A. R. 273 

15 A. R. 183 

8 P. 296 
10 A. R. 137 



5 S, 
3 S, 



13 



86 

83 

546 

827 



McGowan v. B. B. at Mobile, 7 A. R 



McGdwen y; Garrard, 
— V. Yonntr. 



McGraw v. Davenport, 
McGregor, Baylor v. 



V. Hall, 

McGrew v. Adams, 

V. Cato, 

V. Hart, 

V. McGrew, 

, Phillijis V. 

V. Tombeckbee Bank, 



2S 
2S. 

2 S. & P. 

OP. 

1 s. & p. 

5 P. 

3 S. & P. 
2 S. 

2 A. R. 

M. 

IP. 

1 S. & P. 

13 A. R. 

5 P. 



V. Toulmin, 
McGuire, Franklin v. 

V. Miller, 

McIIenry, Hall v. 
Mcllvain, Koin v. 
Mclnnis, Rabun v. 
Mcintosh, Broughton v. 

Y. Alexander, 



Mclntyre, Miller v. 
Mclvor, Boyd v. 

V. 



McJimsey v. Traverse, 
McKay, Dodge v. 
McKcagg V. Collehan, 
McKean, Plummer v. 
McKeen v. Ilarwood, 
Nelms. 



McKenzie v. Connor, 

— ^^ , Elmes v. 

-: V. Hunt, 

V. Jackson, 

V. McCoU, 

, McEldery v. 

V. McRae, 

McKiernan, Crenshaw 
McKinley, Bil^b v. 

, Gaines v. 

V. Irvine, 



McKinney, Barton v. 

, Davis V. 

V. Low, 

V. McKinney, 



McKinnisli, Scott v. 
McKinstry v. Conly, 
McKissack, Crawford A", 
McLane, Brown v. 
V. Miller, 



I'. Spence, 



McLaren v. Allen, 
McLaughlin, Johnson v. 

V. Nelms, 

V. Simpson, 



2 S. & P. 

10 A. R. 

15 A. R. 

5 P. 

IP. 

1 P. 

1 A. R. 

16 A. R. 
9 A. R. 

11 A. R. 

14 A. R. 

1 S. 

4 A. R. 
13 A. R. 

2S. 

15 A. R. 
9 A. R. 

1 S. 

5 A. R. 

1 P. 

4 A. R. 
3 A. R. 

2 P. 

8 P. 
M. 

9 P. 
1 A. R. 

13 A. R. 
3 S. & P. 

5 A. R. 

1 P. 

2S. 
15 A. R. 
12 A. R. 

1 P. 

M. 

12 A. R. 

10 A. R. 

6 A. R. 

11 A. R. 

M. 

9 A. R. 

9 A. R. 

3 S. & P. 



Txv 

823 

479 
276 
160 
319 
158 
103 
397 
502 
675 
8 
175 
30 
255 
547 
428 
557 
394 
123 
285 
386 
103 
87 
638 
822 
593 
244 
346 
828 
423 
792 
507 
162 
617 
37 
230 
516 
33 
70 
295 
636 
446 
681 
274 
719 
129 
17 
662 
678 
433 
208 
643 
856 
894 
172 
117 
551 
925 
85 



Ixvi 



TABLE OF GASES. 



McLaughliu, Simpson v. 
McLean y. Hosea, 

, McRae v. 

V. State, 

McLelland v. Ridgeway, 
McLemore, Linch v. 

, Loftin V. 

V. McLemore, 

■: , Winslett v. 

, Young V. 

McLendon, Erskine v. 

V. Godfrey, 

■ — V. Jones, 

, State V. 

McLeod, Files v. 

'■ — V. Mason, 

v. McDonnel, 

■ V. Powe, 

McLosky, Dumes v. 

, Duval V. 

, Jones V. 

, King V. 

, Rives V. 

McMahan v. Armstrong, 

V. Colclough, 

, Evans v. 

V. Greene, 

V. Kyle, 

McMahon v. Crockett, 

, Shute V. 

McMath, Castles v. 

• , Turnipseed v. 

McMekin v. Bobo, 



16 A. 
12 A. 
15 A. 



4,S. &P. 

14 A. R. 

3 P. 

R. 

R. 

R. 

1 S. 

8 A. R. 

6 A. R. 

3 A. r: 

1 s. 

3 A. R. 
8 A. R. 

IS. 

14 A. R. 

5 P. 

6 A. 
12 A. 

5 A, 

1 A 
10 A 

4 A. 
5S, 
2S. 



R. 

R. 

R. 

R. 

R. 

R. 
&P. 
&P. 



2 A. R. 
1 A. R. 

12 A. R. 

9 P. 

M. 

10 A. 

1 A. 

13 A. 
12 *A. 



R. 
R. 
R. 
R. 



McMichael v. B. B. Mont'y, 14 A. R 



V. Rapelye, 

McMillan, Adams v. 

, , V. 

, Capel V. 

V. Gordon, 

, Miller v. 



— , Spence v. 



McMillian v. Wallace, 
McMillion, Glaze v. 

V. Pigg, 

McMinn, Hefflin v. 
McMorris v. Crawford, 
McMurry v. State, 
McNair v. Cooper, 
McNairy, Prior v. 
McNeill, Hill v. 



V. Reynolds, 



McPhail V. Mosoly, 
McPherson, Chandler v. 
Walters, 



McQueen, Pursell v. 
McRae, Bagby v. 

V. Bank of Columbus, 1 A. R. 

V. , 16 A. R. 



4 A. R. 

7 P. 

8 P. 
8 P. 

4A. R. 
4A. R. 

10 A. R. 

3 S, 

7 P. 
3 S. 
2S. 

15 A. R. 
6 A. R. 
4 A. R. 

1 S. 
• ' • 6 P. 

8 P. 
9 A. R. 

14 A. R. 

11 A. R. 

16 A. R. 
9 A. R. 
2 A. R. 



194 
138 
672 
482 
632 
133 
687 
416 
295 

30 
181 
298 
195 
611 
223 
236 

■ 9 
239 
708 

27 

91 
330 
151 

68 

45 

71 
507 
362 

76 
326 

44 
2,68 
496 
383 

73 
445 
197 
716 
527 
583 
185 
279 
165 
492 
271 
324 
660 
150 

29 
432 
313 
740 
916 
714 
380 
708 
578 
755 



McRae, Bartlett v. 

v. Buck, 

V. Colclough, 

■ V. Foster, 

, Fryer v. 

^- V. Juzan, 

V. Kennon, 



4A.R. 

2 S. & P. 
2 A. R. 

2 S. & P. 
8 P. 

4 A. R. 

1 A. R. 

2 P. 

3 S. & P. 

7 P. 
12 A. R. 
■10 A. R. 

8 P. 

3 P. 
4 A. B. 

2 A; R. 

9 P. 
9 A. R. 

3 A. R. 

6 A. R. 

8 A. R. 

7 A. R. 

9 A. R. 
• M. 

9 P. 

7 A. R. 

6P. 

11 A. R. 

^IcWalker v. B. B. Mobile, 3 A. R. 
McWhorter, Goldthwaite v. 5 S..& P. 



-, Lore V. 
■, McCall V. 
-, McKcnzie v. 
- V. McLean, 

■ V. Pegues, 
■, Pugh V. 

■ V. Raser, 
•, Shute V. 

■ V. Stokes, 



V. Tillman, 



McRoberts, Worthington v 
y 



McRory V. Vinzant, 
McVay v. Bloodgopd, 
V. Krebs, 



McVoy V. Wheeler, 
V. Hallett, 



■ V. Lewis, 
■V. Marrs, 



McGehee, 

Sayre, 

Standifer, 

V. 



4A. R 
M. 

1 S. 
IS. 
2S. 

2 P. 

1 S. 
9 A. R. 
8 A. R. 

2 P. 
4 A. R. 

15 A.,R. 

12 A. E. 

5 P. 

4A. R. 

1 S. & P. 

. .2 A. R. 

Meakings v. Ochiltree, 5 P. 

Mechanics' Bank, Gindrat v. 7 A. R. 



Meacham v. Williams, 
Mead v. Brooks, 

V. Daniel, 

V. Figh, 

V. Hughes, 

, Jordan v. 

V. Steger, 

Meador, Caldwell v. 

— ^^ , Kennedy v. 

•V. Sorsby, 



Medlock, Ewing v. 

— , Vandegraaff v. 

Meek v. Black, 

, Comstock T. 

Paul V. 



Meeker v. Childress, 
Meeks, Carroll v. 
Meggison, Holder v. 
, Godbold v. 



Melloy, Sheppard v. 



5P 

3 P. 

4 S. & P. 

7 A. R. 

6 A. R. 

M. 

3 P. 

2S. 

16 A. R. 

12 A. R. 



155 

74 
143 
187 
286 
295 
389 
249 
175 
444 
313 

70 
138 
158 
393' 
122 
931 
401 
486 
677 
814 
297 
401 
547 
456 
201 
864 
153 
284 
198 
376 

63 
546 
225 
519 
532 
842 
840 

86 
279 
141 
247 
498 
755 
220 
712 
395 
324 

82 
389 
374 
528 
753 
109 
226 
175 
140 
561 



.TABLE OF OASES. 



ixvii. 



Meloue v. Gaines, 
Melton, Jones v. 

V. Troutman, 

Mendenhall v; Eandon, 

v. Smith, 

Meneese, Blackwell v. 
Mennice, Flora v. 
Mercer, Carter v. 
Merchants' I. Co., Butler 



-, Fry V. 
-, Lecatt 



Meredith v. Naish, 



V. Richardson, 

Merrick, Harding v. 
Merrill v. Jones, 



Pollard V. 
V. Smith, 



■ , Somerville v. 

Merriman, Thompson v. 
Merriwether v. Garvin, 

V'. Taylor, 

Metcalf, Vastliinder v. 

V. Watkins, 

, Winston v. 



Mialhi V. Lassabe, 
Middlebrook v. Ames, 

, PearsoUv. 

Middleton v. Holmes, 

V. MauU, 

, State V. 

Milam, Ragland v. 
Miles, Newhouse v. 
Miller, Bebee v. 

— , Board of Engin'rs 

— '■ V. Bonsadon, 

, Bridges v. 

, Childress v. 

, Cobb V. 

V. Cullum, 

Y. Eatman, 

, Ezell V. 

V. Gree, 

, V. Goffe, 

, Grannis v. 

, Locke V. 

, McGiiire v. 

V. Mclntyre, 

, McLane v. 



■ V. McMillan, 

■ V. Pennington, 

■ V. Shackelford, 
•, Smith V. 

, V. Sneads, 



M. 317 
6 A. R. 830 

15 A. R. 535 
S S. & P. 251 

M. 380 

5 S. & P. 397 

12 A. R. 836 

9 A. R; 550 

V. 8. A. R. 14G 

14 A. R. 777 
M5 A-. R. 810 

16 A. R. 177 

3 S. 207 

4 S. & P. 59 
10 A. R. 828 

* ;i A. R. 60 

8 P^554 

2 A. R. 192 

15 A. R. 169 
12 A. R. 569 

1 A. R. 217 

1 P. 
15 A. R. 

2 P 
15 A. R." 

3.A. R. 
IP. 
7 A. R 
6 A. R. 
4 A. R, 

5 a &P 

2 S. & P. 406 

3 P. 424 
A. R 

P 

A. R 

R 

M. 364 
R. 511 
R. 317 
R. 746 
R. 447 
9 A. R. 499 
4 A. R. 576 

11 A. R. 609 
• 6 P. 307 

4 A. R. 359 
9 P. 265 
1 A. R. 471 \ 

3 S.& P. 13 

15 A. R. 394 
9 A. R. 638 

10 A. R. 856 

12 A. R. 643 
4 A. R. 527 

2 S. 299 

16 A. R. 95 

3 S. 280 
M. 27 



16 

10 

9 



9 A. 
9 A. 

3 A. 

4 A. 



107 
166 
199 
735 
100 
57' 
■837 
756 
712 
1-58 



47^ 
484 
618 
460 



Miller, State v. '■ 

V. Thompsou, 

, V. 



AValker v 
Winston 



IMinge 



Millings, Glover v. 
Mills, Hansford v. 

;- V.' Stewart, 

V. Williams, 

Milner, Hudson v. 
Milton V. De Yampert, 

'— V. Rowland, 

Minis y. Central Bank, 

— V. Huggins, 

^—, Innerp^'ity v. 

— — ■ — V. Parker, 

V. Sturdevant, 

V. Curry, 

^v. Smith, 

Mister V. Bigelow, 

— — , Bowie V. 

■—, Burns V. 

— ; , Cronimelin v. 

', Lamar v. 

■ — , Wright V. 

Mitchell T. Allen, 
- — '■ — ,■ Beazley v. 

—^ V. Burt, 

— --V.Cobb, 

, Foster v. 

, Ileydenfeldt v, 

:, Kirksey v. 

— — , Mauldin v." 

-^ V. Mitchdl, 

■— v. , 



3 A. R. 343 

3 P. 196 

2 S. 470 

11 A. R. 1067 

1 S. 508 

& P. 28 

9 P. 

12 A. R. 

2S.&P. 

12 A. R. 

3 A. R. 



11 A. 
2x1. 
'1 A. 
1 A. 



9 A. 
13 A. 
15 A. 

6 A. 



2S 

509 

90 

390 

667 

648 

R. 732 

R. 294 

R. 676 

R. 660 

1 A. R. 421 

16'a. R. 154 

5 A.'R. 168 

1 A. R. 415 
9 P. 481 

2 A. R. 406 
12 A. R. 316 

9 A. R. 594 

; 13 A. R. 31 

2 S. 453 

2 S. & P. 247 
9 A. R. 780 

R. 226 
R. 137 
R. 571 
R. 70 
8 A. R. 402 

14 A. R. 814 

3 S. & P. 81 

8 A. R. 414 

T ■-, Opothle-Yoholo v. 2 S. & P. 125 

,* Pearson v. 2 A. R. 736 

— -— V. Rich, . 1 A. R. 228 

' ' v. Robertson, 15 A. R. 412 

; -^ V. Russell, 3 S. 53 

— — V. Sanford, 11 A. R. 695 

'_ ^^ Spence v. 9 A. R. 744 

Mobile'Cotton Press v. Moore, 9 p! 679 
M6bile R. R. Co. v. Talman,15 A. R. 472 

9 A. R. 97 
8 A. R. 444 
8 A. R. 122 

6 P. 24 
3 A. R. 387 

15 A. R. 66 
10 A. R. 185 
'16 A. R. 616 

3 S. 322 
9 P. 424 

7 A. R. 593 
6 A. R. 776 

9 P. 518 

8 A. R. 546 
i A. R. 22 



IMobley v. Pickett, 
MQck, Ansly v. 

, Clg,pp y. 

' — ,v. Cundiff, 

— T. Kelly, 

— — V. .King, . 
- — - — , Harrison v. 



Moffet V. Wooldridge, 
Moffitt V. Bragg, 

V. B. B. at Mobile, 

, Bearing v. 

Winston 



Molett, Norman v. 
Mongin v. Harrison, 



Ixviii 



TABLE OF CASES. 



Monk, State v. 
Monroe v. Brady, 

V, Ezell, 

Montandon y. Deas, 
Montagvie, Edmondson v. 
Montgomery v. Elliott, 

, V. 

, Hall V. 

, Hatfield V. 



3 A. R. 415 

7 A. E. 59 
11 A. R. 603 
UA. R. 33 
14 A. R. 370 

6 A. R. 701 

4 A. R. GOO 

8 A. R. 510 

2 P. 58 



Montgomery R. R. Co, Al- 
len V. 

V. Hurst, 

■ V. Walton, 

Moody, Baker v. 

, Cantley v. 

, Hair v. 

V. Keener, 



, McDaniel v. 

, Nibbs V. 

Mooney v. Ivey, 

V. State, 

, Vickars v. 

Moore, Adams v. 

V. Andrews, 

V. Armstrong, 

, Ayres v. 

V. Barclay, 

V. Bell, 

, V. 

Y. Bradford, 

V. Briggs, 

T. ■, 

, V. 



-, Bryan v. 
-, Carroll v. 

- V. Chapman, 

- V. Clay, 

- V. Clements, 
-, V. 

- V. Coker, 



. V. Coolidge, 

, Cothran v. 

V. Dial, 

Y. Dudley, 

, Green v. 

Y. Hancock, 

Y. Harton, 

Y. Hatfield, 

— — , Hemingway y- 
, Holt V. 



- Y. Horn, 

- Y. Hubbard, 

- V. Jones, 
-, King V. 



11 A. 
'9 A. 



R. 437 

R. 513 

14 A. R. 207 

1 A. R. 315 

7 P. 443 

9 A. R. 399 

7 P. 218 

9 P. 252 

3 S. 314 

5 S. & P. 198 

8 A. R. 810 

8 A. R. 328 

6A. R. 97 

9P 

5P, 

9P, 

2 S. 336 

16 A. R. 158 

R. 469 

R. 823 

Tl. 550 

R, 700 

R. 24 

433 

377 



Moore, Mobile Cotton Press v. 9 P. 679 



406 
107 
697 



13 A. 
9 A. 
3 A. 

14 A. 

15 A. 
14 A. R. 

M. 



11 



— Y. Leftwitch, 
— , Mason y. 

— Y. Mayor of Mobile, 



7 A. R. 615 
2 S. 466 

7 A. R. 742 
4 P. 227 
i. R. 35 

2 P. 347 

1 P. 280 
1 A. R. 423 

3 S. 155 

2 S. 170 

I S. & P. 212 
U A. R. 245 

IP. 15 

3 A. R. 442 

II A. R. 645 

4 A. R. 394 

5 A. R. 521 

5 A. R. 234 
4 A. R. 187 

13 A. R. 296 

6 A. R. 160 
1 S. & P. 254 

12 A. R. 578 
1 S. 284 



Norris y. 
— , Owen Y. 
— , Paine y. 
— , PattisonY. 

— Y. Patton, 
— , Peden y. 
- — Y. Penn, 
— , Perkins y. 

— Y. , 

— Y. Philips, 



Y. Ponders, 
Y. Sample, 
Y. Spence, 
Y. State, 

Y. — ■■ , 

V. Tarlton, 

, Toney v. 

, Townson y. 
Y. Worsham, 

• Y. Wright, 



Moorer, Dilbone y. 
Moorman, Lewis y. 

Y. State Bank, 



Morea, State y. 
Morehead y. Gayle, 
Morehouse, Smoot y. 
Moreland y. Ruffin, 
Mordecai y. Beal, 

Y. Tankersly, 

Morgan, Allen y. 

V. Billings, 

Brewer v. 
Y. Crabb, 
Goodwin y. 
Y. Lamar, 
McEwen y. 



Y. Morgan, 

Y. Patrick, 

■ Y. Ramsey, 

Y. Rhodes, 

Y. Scott, 

, Sprague Y. 

V. State, 

, Taylor y. 

Morris, Bartlett y. 

, Bennet y. 

Y. Booth, 

, Cong'l Church y. 

, Derrick y. 

Y. Ellis, 

Y. HarYcy, 

, Isbell Y. 

Y. Low, 

, Overton y. 

Morrison, Gardner v. 

: — Y. Judge, 

Y. Marvin, 

Y. Morrison, 



3 A. R. 676 

14 A. R. 640 

6 A R. 129 

3 P. 270 

2 P. 451 

I S. & P. 71 

5 A. R. 135 
16 A. R. 9 
16 A. R. 17 

8 P. 467 

II A. R. 815 

3 A. R. 319 

6 A. R. 506 

12 A. R. 764 
16 A. R. 411 

3 A. R. 444 
4 S. & P. 347 

9 P. 136 

5 A. R. 645 
4S. &P. 84 

14 A. R. 426 

7 P. 522 
3 P. 353 

2 A. R. 275 
2 S. & P. 224 

8 A. R. 370 

M. 18 

8 P. 
1 A. R. 

1 S. 

3 A. R. 

13 A. R. 

3 P. 470 
1 S. 278 

9 A. R. 231 

1 S. 190 
3 S. 383 

7 A. R. 185 

15 A. R. 190 

IS. 70 
M. 
7A. R. 

11 A. R. 

6 A. R. 

9 P. 266 
9 P. 171 

8 A. R, 907 
8 A. R. 182 

5 P. Ill 

3 A. R. 560 

4 A. R. 300 
1 S. & P. 41 

4 S. & P. 123 

3 P. 249 

12 A. R. 547 

14 A. R. 182 
6 A. R. 797 

3 S. 444 



529 
100 
9 
172 
551 



81 

,952 

289 

893 



TABLE OE' OASES. 



Ixix 



3 S. & P. 

8 A. R. 

7 P. 

• 6A. R. 

* - 7 P. 
. 8 A. R. 

9 P. 
9 P. 

14 A. R. 

15 A. R. 
8 A. R. 
7A. R. 
? A. r! 

' 9 P. 

^4S. &P. 

5 A. R. 

14 A. R. 

14 A. R. 

^^5 A*R. 

^ IP. 

*.'14 A. R. 



Morrison v. Orr, 
V. Spears, 

-^. V. Wright, 

Morrow v. Bird, 

■ — T. Campbell, 

' — ^- — , Gooden v. 

: — , Humphreys v. 

■—, Johnston v. 

• V, Parkman, 

— V. Riley, 

.V, "Weaver, 

Morse, Waring^ y. . 

Mosby V. Steele, 

Moseley, Abercrombiev, 

-r-! — T-", Dale V. 

■ — -, King V. 

— , McPhailv. 

, State V. 

— '■ -, Wayland, v. , 

—-^rr- V- White, 
. *; ■ »• : V. Wilkinsonj * ^ , 
• '..'' , Winston v. \- -^ \ . 2- Sr. 

Moses, State V. ■• • M. 

Moss, EasleyV. ,'•' Q A. R. 

— ■■ V. McCall, ' 12 A. R. 

— ^v- — , McCoy V. ■• 5 P. 

— r^ — ,■ Yarborough V. ' ^Vri^'A. R.. 

Mott, Evans V. . V**,7 P. 

Mounts, Ellison V; • 12 A. R. 

Moyler v. Moyler, 11 A... R.' 

MiiUary v. Caskadeii, M. 

Mullikin, Hines v. 11 A. R. 

Mullins V. Cabiness, '\ , M. 

• — : — —, Int. of Greensboro' v J*3 A. R. 
Wright V. 2 S. & P. 

o o; 

■ 5 P. 
■2S.&P. 

14 A. R, 
12 A. R. 

■8t>. 

2 P. 

■ '2'S. 



Mundine v. Crenshavf, 

— . v. Gold, ■ 

.r-T^— — V. Perry, 

-^^. y; Pitts, 

Mundy, Garter v. 
Munks, Goodman v. 
Munn V. Lewis, 
V. Pope, ♦ , 



49 

93 

67 

834 

41 

4§6 

283 

525 

769 

710 

288 

343 

299 

145. 

371. 

61(>' 

740 

390 

430-. 

410 

812 

137 

393- 

266 

630 

88 

382 

■ 02 

472 

620 

20 

634 

21 

341 

219 

87 

215 

130 

84 

132' 

.-84 

24 

498 



J^unroe, Wiswell v. 
V. Pritchett, 



_ Murray v. Charles, 

■ v. Cone, 
•v. Ee.eM, 

■ V. Harper, 
•, Pope V. • 

V. Williams, 



Murchie v. Cook, 
Murfs V. Plarding, 
Murphy v. Andrews, 

— • , Bates, V. 

•- — ^^. Branch- Bank 9<t 

^' . ' Mobile, 

^ — r^:^— , 



4A. R. 

16 A. R. 

1 A. R. 

6 P. 

13 A. R. 

2 S. & P. 



V. . ' 
V. 
Council of 



• V. City 

Mont'y, 
-, Evans v* 
V. Gee, 
, iaiff'e V. 



, King V. 
V. Paul, 
, Roden v. 

, State y. 

, —y- 

V. 



Wallis v. 
Williams 



Murrell," Lowrey v. 
—. — , Pollard V. 

.Stui'devant v. 



Musgroye v.. Hudson, 
Mussina v. Bartlett, 
Myatt.y. Lookhart, 

V. 



>■ 



Myer v. Rives, 
Myers, v: Peek, 
Mynat't, Boyd.v. 
Myrick v. Chamberrain, 
. .Thaeker v. ' 



5 A. R. 
16 A. R. 

8 A. R. 
7 A. R. 

11 A. R. 

I S. &'^. 

9 A. R. 
10 A. R. 
14 A. R. 

1 S. 
* 8 A. R. 

10 A: R. 

• M) p. 

6 A.' R. 
. 6 A. R. 

• -2 S. 

• IP. 

5 A;R. 

8 P. 
3 A. R. 
3 A. R. 

6 A. R. 

8 P. 

2 P. 
6 A. R. 

8 P. 

•2S. 

8 P. 

9 A. R. 

13 A. R. 

II A. R. 
- 2 A. R. 

4A. R. 
M. 

3 S. 



9 

785 
41 
121 
708 
160 

421 

90 

119 

577 

586 
226 
276 
885 
289 
228 
357 
804 
487 
765 
845 

15 

40 
678 
250 
148 
744 
489 

47 
280 
661 
317 
464 
277 

91 
338 
760 
648 

79 
357 
184 



•N* 



• -^v -Ml 



Nabors v. Camp, 

T-— , ex parte, 

' V. Governor, 

, May V. 

V. Nabors, 

-, Shepherd v. 

V. Shippey, 

V. State, 

, Stovall y. 

- — ■ V. Thomason, 

, Woods vi 

. Nairne, Gorman v. 
1— J 



14 A. R. 46(j 
. 7,'A. R:'459 
3 S. & P. ■ 15 
. 6 A. R.-. 24 

2 P. '1,62 
6 A. R.'63i 

15 A. R. 293 
6 A. R. 200 
1-A.R.218 
1 A. R. ';590 

IS. 172' 
12 A. R. 338 



Naish, Meredith v. 

^i r^ V. 



Nail V. Adams-, 

-T-; Bragg V. 

— — ^, Cam'eron v. 



Nti'nce v. CosO', 
■ — -^- — , Grigsby v. 

— V. Hemphill, 

. — V. Hooper, 

^ V. Lary, 

'-^— - — V. I!ope, 
_- , V, 



3 S. 207 

4S. &P. 59 

7 A. R. 475 

•14A. R. 619 

3 A. R. 158 

16 a; R. 125 

3 A. R. 347 

1 A. R. 551 

11*A. R. 552 

5iSA. R. 370 

; 1 S. 220 

M. 299 



MX 



TAlBLE OF CASES. 



Nance, Pope v. 

, Tarver v. 

, Tipton V. 

, White V. 

Nancy v. State, 
Napier v. Cook, 
Napper v. Noland, 
Nash, Porter v. 
Nashville Bank, Herbert 
Nations v. Hawkins, 
Naylor v. Phillips, 

V. , . 

Neal V. Caldwell, 

V. Gaines, 

, McCausland v. 

— , Prewitt v. 

V. Smith, 

Ned V. State, 
Needham v. Newsom, 
Neil V. Cunningham, 

■ — V. Johnson, 

— , V. 

, State V. 



Nelms, High v. 

, Hinton v. 

, McKeen v. 

, McLaughlin v. 

Nelson v. Dexter, 
V. Dunn, 



— , Farley v. 
— , Lockwood V. 

— V. Lovejoy, 

— ,*Smith V. 

— V. State, 



Nesbit V. Bradford, • 
Nettles V. Barneti;, 
Newbold v. Wilson j 
Newell, Cuthbert v. 

Y. Turner, 

Newhouse v. Miles, 

-v. Kedwood, 

Newman, Crumpton v. 

V. James, 

■ , State V. 

Newsom, Needham v. 
Newton, Chisholm v. 
Nibbs V. Moody, 
Nicholas v. Krebs, 
Nichols, Ba^dv.' 



IS. 

5 A. R. 
4A. R. 

16 A. R. 

6 A. R. 
9 A. R. 

9 P. 

1 A. R. 

'. 1 S. & P. 

11 A. R. 

3 S. 

2 S. & P. 

3S. 

1 S. 

3 S. & P. 

M. 

5 A. R. 

7 P. 
M. 

2 P. 
11 A. R. 

4 A. R. 

6 A. R. 

14 A. R. 
'13 A. R. 

9 A. R. 
9 A. R. 
.6 A. R. 

13 A. R. 

15 A. R. 
4 A. R. 

16 A. 

14 A, 



R. 

R. 

P. 

R. 

R. 

R. 

R. 

P. 

M. 

' 7A.R. 

9 P. 

9 A. R. 

7 A. R. 

12 A. R. 

12 A. R. 

7 A. R. 

M. 

1 A. R. 

5'S. & P. 

m A. E. 

2 p. 



6 A, 

■6 A. 

7 A. 
6 A. 
'■ 8 



354 
712 

194 
345 
483 
838 
218 
452 
286 
859 
210 

58 
134 
158 
131 
386 
568 
187 
407 
171 
615 
166. 
685 
350 
222 
507 
925 

68 
259 
501 
183 
294 
568 
452 
320 
394 
610 
746 
181 
-12 
457 
420 
460 
598 
■199 

29 

69 
407 
371 
198 
230 
186 



Nichols V. Comptroller, 
, Irvin V. 



Nicholson, Bettis v. 

, Gee y. 

Lamar v. 



Nickles v. Haskins, 
Nicks, Chinnubbee v. 

, Ivey V. 

Nicolson V. Burke, 
Nitcher, Caskey v. 
Nix, Hudgins v. 
Nixon V. Foster, 
Huie V. 



Noble V. Coleman, 
Noel, Jinkins v. 
Noland, Ansley v. 
, Locke V. 



, Napper v. 

V. Wickham, 

Nolen V. Gwyn, 
Nolley V, Holmes, 
V. Wilkins, 



Norman, Evans v. 

V. Molett, 

-; V. Norman, 

Sutherlin v. 



Norrisv. Bradford, 

, Embree v. 

, Evans V. 

, ex parte, 

, HiUv. 



, Jones V. 

V. Moore, 

—— , Sims V. 

V. State, 

■ , Stephens v. 

Norsworthy, Upchurch v. 

V. 



North V. Eslava, 
Northrop, Carew v. 
, Cass v. 



Norwood, Manning v. 

V. Riddle, 

V. : , 

y. Rossiter, 

Swink v. 



Nuckols V. Mahone, 
-, Stewart V. 



Nugent V. State, 



14 A. 

15 A. 

8 A. 



4 S. & P. 154 

5 S. & P. 189 

1 S. 349 

2 S. 512 
7 P. 158 

15 A. R. 619 

3 P. 362 
R. 564 
R. 353 
R. 622 

10 A. R. 575 

8 A. R. 357 

6 P. 77 

16 A. R. 77 

3S. 60 
6 P. 379 

11 A. R. 249 
16 A. R. 52 

9 P. 218 

9 A. R. 169 
16 A. R. 725 

3 A. R. 642 

11 A. R. 872 
R. 662 
R. 546 
R. 389 
R.662 

4 A. R. 203 
2 A. R. 271 

1 A. R. 511 

2 A. R. 385 
2 A. R. 640 

2S.&P. 114 

2 A. R. 526 

3 A. R. 676 
5A. R. 42 

16 A. R. 776 
15 A. R. 79 

12 A. R. 532 
15 A. R. 705 
12 A. R. 240 

5 A. R. 367 
1S.&P. 89 

1 A. R. 429 

9 P. 425 

1 A. R. 195 

3 A. R. 134 

9 P. 287 

15 A. R. 212 

15 A. E. 225 

4S. &P. 72 



14 A. 

8 A. 

3 A. 

14 A. 







O'Brien, Butler v. 
, Hallett«(?. 



5 A. R. 310 
3 A. R: 455 
1 A. R. 585 



O'Brien v. Henry, 
V. Lewis, 



Otfhiltrec, Meakings v. 



6 A. R. 787 

8 A. R. 666 

5 P. 395 



TABLE OF CASES. 



Ixxi 



t)chlltree, Sanders v. 
O'Connell, Hays v. 

• , St. John V. 

■ " — V. Walker, 

O'Conner, Barrelli v. 

: — V. Youngblood, 

Odam, Hogan v. 
Odem, Bjrd v. 
Oden V. Kippetoe, 

V. Stubblefield, 

V. , 



6 
16 

9 

4 

2 
4 

, V. 9 

O'Donnell v. Sweeny, 5 

Officers of Co, Patterson v. 11 
Ogbourne, Dorman v. 16 

Ogburn, Bullock v. 13 

V. Ogburn, 

Ogden V. Powell, 7 

• V. Smith, 14 

O'Hara v. B. atHawHnsville,2 
OhioL. I. &T. Co. V. Ledyard, 8 
Olds V. Powell, 7 
V. -, 10 



T. Sargent, 

— V. , 

Olive, Maury v. 

— V. O'Riley, 

Oliver v. Atkinson, 

, Black v. 

■ , Brannan v. 

V. EUzy, 

V. Hearne, 

V. Hire, 

V. Holt, 

V. Hutto, 

V. Judge, 

V. Loftin, 

McColl V. 



11 

4 

14 

11 

5 

4 



5 P. 
A. R. 

7 P. 

IP. 
A. R. 
A. R. 

3 S. 
A. R. 
A. R. 
A. R. 
A. R. 
A. R. 
A.R. 
A. R. 
A.R. 
A.R. 

3 P. 
A.R. 
A.R. 
A.R. 
A.R. 
A.R. 
A.R. 
A.R. 
M. 

IS. 

2S. 
M. 

2 P. 

A. r! 

2 S. 
A.R. 
A.R. 
A.R. 
A. R. 
A.R. 

2S. 
A.R. 

IS. 



73 
488 
466 
263 
617 
718 

58 
755 

68 
684 

40 
651 
467 
740 
759 
346 
126 
243 
428 
367 
866 
652 
393 
861 
320 

37 
472 
410 
.546 
449 

•47 
632 
271 
590 
574 
211 
483 
240 
510 



Oliver, v. Oliver, 
•, Wilson V. 



O'Neal V. Garrett, 
O'Neil V. Donnell, 

, Hunter v. 

V. State, 

V. Teague, 



5 A.R. 

IS. 

3 A. R. 

9 A, 
12 A, 

16 A, 

8 A 
5 A 



Ooton V. State, 

Opothle-Yoholo v. Mitchell, 2 S. & P 



Orear, 



Lawson v. 



0' Riley, Olive v. 
Orms, Cundiff v. 
Orr V. Burwell, 

V. Duvall, 

Morrison v 



Orton, Craig V. 
Oswitcliee Go. v. Hope, 
Otey V. Rives, 
Outl£i,w V. Cook, 
, Wilson V. 

V. 



Overton V. Morris, 
Owen V.' Ashlock, 

, Bell V. 

V. B. B. at Mobile, 

v^ Brown, 

-, Bryant v. 

, ^v. 



- V. Henderson, 
-, Kelly V. 

-, Macon v. 

- V. Moore, 

- V. Paul, 

-, Rather v. 
-, Read v. 
-, Reid V. 
-, Steelman v. 

- V. White, 



4 A.R. 

7 "A. .R. 

M. 
7 P. 

15 A. R. 

1 A. R. 
3 S. & P. 

M. 

5 A. R. 

M. 

M. 

M. 

M. 
3 P. 
9 P. 

8 A.R. 
3 A.R. 

2 A.R. 
2^S.&P. 

IP. 

7 A.R. 

M. 

3 A.R. 
14 A. R. 

16 A. R. 

1 S. 
9 P. 
9 P. 
. 8 P. 
5 P. 



75 

46 
276 
734 

37 

65 
345 
463 
125 
156 
784 
410 

58 
378 
262 

49 
111 
629 
401 
257 
196 
367 
249 
417 
312 
258 
126 
134 
201 
641 
252 
116 
640 
130 

38 
180 
435 
562 
435 



Pace, V. Dossey, • • 1 S. 20 

, Lloyd V. 12 A. R. 637 

Pack V. Pack, 9 P. 297 

Page V. Coleman, 9 P. 275 

V. State, 11 A. R. 849 

Pagles, Barron v. 6 A. R. 422 

, ' V. ■ 6 A. R. 462 

Paine, Bancroft v. 15 A. R. 834 

, Creightonv. 2 A. R. 158 

, Curry v. 3 A. R. 154 

, Pox V. 10 A. R. 523 

V. Moore, 6 A. R. 129 

-, Rustv. 16 A. R. 352 

Pair, Hooper v. 3 P. 401 
Palmer v. Lesne, 3 A. R. 741 
v. Severance, 8 A. R. 53 



Palmer v. Severanqe, 

V. , • 



Park V. Bancroft, 
Jones V. 



Parker, Adamson v. 

, B. B. at Montg'y 

, Dubose V. 

V. Goldsmith, 

V. Haggerty, 

, Hudson V. 

, Hughes V. 

■ V. Leek, 

-, Mason v. 

V. McGaha, 



9 A.R. 
10 A. R. 

12 A. R. 

IS. 

3 A.R. 

V. 5 A. 

13 A. 
16 A. 

1 
9 



R. 

R. 

R. 
A.R. 
A.R. 



-, Mime v. 



IP. 

IS. 

1 A. R. 

11 A. R. 

13 A. R. 

1 A.R, 



751 

346 
468 
419 
727 
731 
779 
526 
632 
413 
139 
523 
684 
521 
344 
421 



Ixxii 



'TABLE OF €ASES. 



Parkman v. Ely, 

, Morrow v. 

: — , Tait V. 

— V. Brooks, 

-^ Chilton V. 

~ '■ V. Greening, 

-^' V. Stonum, 



Parmer v. Ballard, 

~ , Wiley V.' 

Parmlee, Sheffield v. 
Parish, Burt v. 

— , Randolph' V. 

Parry, Dillahunty r. 
Parsons, Duren %. , 

, Gaston v^ ■ , 

v. Lee, , 

, Sheffield v. 

Partillo, Ainsworth V. 
Paschall v. Whittsitt, 
Pass, Pierce v. 
Pate V. Henry, 
Pathkiller, Carroll v. 
Patilla V. Governor, 
Patrick, Fennell v. 

, Morgan v.. 

, Pitcher v. 

, — ' V. < 

Patterson, Bickerstaff v 

— ■ V. Burnett, 

; ^ — V. Campbell, . 

, Cleaver v. 

, Cloud V. '" 

V. Cook, 

, Dumas v 

, Eatofi V. 

V. Grace, 



5 A. R. 

14 A. R. 

15 A. R. 

16 A. R. 
15' A. R. 

•" M. 

g A. R, 

3S. 

14 A. R. 

8 A. R. 

9 A. R. 
9P.- 
IS. 

•5^p: 

- 8. p. 

S'P. 

3 S: •& P. 

1« A; R. 

'11 A. R. 

V 11?. 

5 S. & P. 

3 P.' 

^P. 

3 S! & p; 

7 A. R. 

■ M. 

1 S. & P. 

8 p. 

6 A, R. 
, 9A..R. 

•""14 A.tR. 

^^.»^• s:p. 

•♦»-9 A. R. 
I A. R 



V. Officers of Coftrf,.ll A. R. 

~ "" i5a:.r. 

M A. R. 
1:2 A. Rjf 

Id a'. li 

M. 

• *ap. 

• 'IS. 
9 p. 

'15 A. R- 

15 A. R. 

2 .S-. 
• 2 P. 

'IP. 
6 A..R. 
St.Jl. 

16 A. R. 
^P. 

5 S. & P. 
11 A. R. 

3 S. 
2S'. 

■ ' IS. 



V. Powell,- J 

, Savryer v. • 

, V. '. 

V. Ware, 

Patteson, Laad v. 
Pattison v. Moore, 

— V. Wallace, - 

Patton, Clemens v. * 
— — — V. England,' 
— ^ — - V. Haji^er, 

, Keath v. 

, Moore yy ■ 

— '■ , Whitaker v. 

Paul V. Meek, 

, Murphy V. 

■ , Owen V. 

, Smith V. 

, State V. 

Paullin, Taylor v. 
Paulling V. Sturgus, 
Payne, Bell v. 
V. Mai-tin, 



346 

769 

253 

529 

671 

178 

752 

326 

627. 

889 

211 

■ 76 

251 

345 

469 

125 

302 

460 

472 

232 

101 

279' 

232 

244 

185 

321 

478 

^45 

844 

933 

387 

394- 

66 
484^ 
"9^ 
264 
740 
205 
.523 
295 
444. 

14 
270 

48 
289 

f9 

18 
■38 
451 
9 
753 
357 
13Q 
503 
•40 
512 

95 
414 
407 



Payne v. Mayor of Mobile, 4 A. R. 

Paysant v. Ware, 

Peacock v. Banks, 

Peake v. Stout, . 

Pearc'e, Castleberry v,* 

— -ir-i- r. f 



-,''Douge V. 

Salter v. 



Pearsail, Bean v., 

— , Cpker V. 

B,©, Graffenried v. 



■^ V. Phelps; 



Pearsoll vt.Middlebrook, 
Peai'son, Ansley v, 

r.v. Gayle, 

5, v., Howe, 

^ ^ v." Mitchell, 

V. Thomason, 



Peck, Barnes v 

—^'Barton' v. " . .* 

'-^ ^'v. Dinsi^iore, ' ■ 

— ■■ -, Hillhouse v. ■ ■ 

— ; V. Heicombe, ■ 

— °' 1 ':, Lewis' -v. 

'^ , Randolph v. 

-^^^ — •, Wallace v. 
Peden'V. Moore, 
Peek',MYA's V. 
Pegiies, 'MdRa'e v. 
Peircov B.'B. at Mobile v. 
.--— V. Hill, 

Russell V. 



Pender, Davis v. 
Penn, Carter v. 
'-^ — , Mocfi-e V. 
'' . — V. Stone, 



Pennington, Dviffee v. 
—, Miller V. 



Penny, West v. 



1 A. R 
M. 

8 A. R. 
2 S. & P. 
5iS. & R 
13 A. R. 

4 A. R. 
12- A. R. 

6 A. R. 

1 A. R. 

3 a:r. 

2S. &P. 
8 A. R. 

11 A. R. 
.11 A. r; 
> 2 A.R.' 

15 A. R. 

IP. 

1S.C%P. 

4 P. 

2.S.&'P. 

■ '3^P: 

10 "A.. R. 

4 A.R; 

12 A. R. 
1 S." '& P. 

2' A.R: 

4 A. R/ 

3 A. r; 

J , ,9 P. 

7P. 

- M. 

4A. :S. 

>'' 5 A.R. 

10- A. R. 

1 A. R. 

2.S. 

16 A.-R. 



Perdue, B. B. at Mont'y v. 3 A. R. 



V. Burnett, 
Perkins v. Governor, 

V. Hai^jer, . • 

« , Houzev*- 

, .Jones V. 

— ■ V. Mayfield, 

: — .V. Moore, 

_ V, ' _^ 

-• — ■■ — V. Reed; 

■ — ^ , — ^ v.- 

^-^ , Williams v. 



V. WiudTbam,' 

— . • v. . V. Winter, 
Perrine v. Bal^cock, 

~'^-~t ' 

-f — — T. George, 

— — J- V. Leachman, 

V. Warren, 



Perry v. Brown, 



M. 
M. 

., 2S. 
5 A; R. 

' -rs. 

5 P. 
IB 'A. R. 

' 16 A. R. 

14' A. R. 

14 A. R. 

■ IP. 

'. 4 A, r: 

7 A.R. 

6 P. 
8 P. 

5 A. R. 

10 A. R. 

• 3S. 

••• M. 



-333 
160 

387 
647- 
141 
150 
.127 
Q69 
59^ 
542 
526 
525 
406 
431 
.278 
370 
736 
700 
187 
486 
212 
395 
329 
142 
389 
768 

71 
648 
158 
321 
151 
276v 
■57 
140 
135 
209 
506 
399 
186 
409 
138 
352. 
477 
286 
512 
182 
9 

17 
586 
231 
471 
634 
855 
391 
131 
641 
140, 
151 

55 



TABLE OF CASES. 



Ixxiii 



.jPerry, Bullock v. 
— i-;r- V. Graves, 
— — ^^ — V.' Hewlett, 

r, Johnson V. 

1 Lindsay v. 

— ■ , Mundine t.- 

-, Randolph v. 



Perryman v. Burgst6r, 

■ ', Wiggins V. 

Peter, State v. 
Peters v. Bower, 

-, Bryant v. 

-^ r— V. Heydenfelcit, 

^ V. Johnson, 

— ; Pickard v. 

■■ ' — , Ransom V'. 
Pettigrew. v. Bishop, '' 

'■ — ^ V. Pettigrew, 

Petty v; Graham, 
— — — , Johnson v. 

, Tippin V. 

V. Wafford; 

■ V. Walker, 

Pettybone, Grant v. 
Pettus, Lan^ v. . 

V. Roberts, 

— ■ , Simpson v. 

— ■ — '■ — , Smith V. 
Thares, Houdshell y. • 
' — • • - V. Stewar,t, 
Pharr v. Bachelor, 

— , Bell V. 

, Gee V. 

— : — — V. Hale, 

— , Jones V. 

, Judge of Wilcoj 

v.. Reynolds, , 

— ,■ — ~ V. 

Phelanv. Fancher, 

v; Phelan, 

Phelps, Pearsall V. 
Phereby V. State, 
Phifer, Ivey v. 



2 S. & P. 319 
12 A. R. 246 
5 P. 318 
4S!>&P. • 45 
1 .A. R. 203 
2 S.''& P. 130 

■ '2?. 376 

4 P." 505 

• 6 P. 

, 4 S." & P. 

IS. 

M. 

■ 3 A. R. 
3 A. R. 205 

- - M. 100 

3A. R. 493 

♦2 A. R. 647 



99 
94 

38 

69 

160 



440 
580 
568 
'528 



Phil, State V. ' 
Phillips V. Brazeal, 

— , Borland v. 

— - — T, Beene, 
- — — , Dill V. 
•F-^ — — V.' Gray, 

!~- , Gordon v. 

•: V. Jc^dan, 

,.Lamkinv. 

v! Lockhart, 

— V. Longstreth,'' 

— V. Malone, 

, V. McGrew, 

■—, Moore v. 



^ ^'3 A. R 

■ ■ ■ IS 

13 A. R 

5 A. R 
. 7P, 441 

11 A. Rs 143 
I'O A. R. 379 

2 .S. 445 
11 A. R. 37 

6 A. R. 8k 
•••7 A. R. 453 
■*1 S. &P. 107 

'1 A. R?. 580 

9P;336 

3'A. R. 237 

7 A. R. 807 
.■5^^R.'586 

• %A. R. 312 
- ^ A. R. 283 

V. 4S.&P,332 

3 A. R. 521. 

9 A. R. 560 

■ 5 A. R. 449 

I'B A. R. 079 

3.A. R. 525 

16 A. R. 774 

11 A. R.535 

13 A. R. 821 

• IS.' 31 

14 A; R. 746 
3 A. R. 718 

16 A. R. 720 

13 A. R. 350 

1 A. R, 

13 A. R. 

3 S. 
9 P. 

1 A. R, 

14 A. R. 337 

M. 110 

4.3 A. R. 255 

•8 P. 467 



226 

565 

38 

98 

521 



Phillips, Naylor v. 

, V. 

V. Phillips, 

— — — - V. Scoggins, 

— , State V. 

— '■ v^ Thompson, 

V. , 



Phleming v. State, 
Pickard, Carter v. 

V. Peters, 



Piekens v. Hayden, 
Pickering, Kennedy v, 
Pickett, Austin v. 

— -, Mobley v. 

-= V. Stewart, 

Pierce t; Brassfield, 

- — '■ ? V. Plickenburg, 

— '■ '-, Ivey V. 

■ V. Pass, 

V. Prude, 



, State V. 

, Thompson v. 

Pierson, Atwood v. 
-^ V. State, 



Pigg, McMillion v. 
Pile, State v. 
Pinkard v. Ingersol, 

• .Y-' , 

Pinkston v. Brewster, 

— '■ V. Greene, 

— ■ V. Huie, 

t: Taliaferro, 



Pippin y. Huntington, 
, Rutland V. 



Pistole V. Street, 
Pitcher, Jones v. 
■- -%.' Patrick, 

V.- 



Pitfield V. Gazzam, 
Pitts V. Burroughs, 

— V. Gottingham, 

— V. Curtis, 

— — — V. Keyser, 

, Mundine v. 

■ V. Shortridge, 
Pittua, Hatch V. ' 
Pledgery. Glover, 
Plowman v. Riddle, 



Plunket, State v. 
Plummer v. McKean, 
Poe; B. B. at Mobile v. 
Poland, Boardman v. 
Pollard V. Files, 

• — V. Greit, 

V. Kibbe,. 

-^ V. Merrill, 

V. Murrell, 



210 

58 
71 

28 
297 



3 

2 S. & P. 
IS. 

I s. & p. 

•2A.R. 

3 S. & P. 

9 P. 664 
. M. 42 

II A. R. 673 
■3 A. R. 493 

2 S. 10 

M. 137 

9 A. R. 102 

9 A. R. 97 



12 A 

9 A 

i 

5 A 

] 

3 A, 



R. 202 
R. 573 
P. 196 
R. 374 
P. 232 
R. 65 

2 P. 227 
7 A. R. 728 

3 S. 427 
9 A. R. 656 

12 A. R. 149 

3 S. 165 

5 A. R. 72 

11 A. R. 9 

12 A. R. 441 
14 A. R. 315 

9A. R. 19 

9 A. R. 252 

9 A. R. 547 

9 A. R. 228 

7 A. R. 469 

5 P. 64 

3 Si & P. 135 ■ 

I'S. &P. 478 

M. 321 

2 A. R. 325 

6 A. R. 733 

9 P. 

4A. R. 

IS. 

14 A. R. 
7 A; R. 494 

. M. 49 
2 P. 

7 A. R.' 
•14 A. R. 

2S. 

2 S. 423 

1 A. R. 396 

2 P. 431 

. 3 A. R. 47 

8 A. R 930 
1 A. R. 403 

15 A. R. 169 
6 A. R. 661 



676 
350 
154 

84 



174 

775 

169 

11 



Ixxiv 



TABLE OF CASES. 



Pollard V. Stanton, 



V. Taylor, 

Pomphrey, Lesnev. 
Pond V. GrifBn, 

V. Lockwood, 

V. , 



5 A. R. 

7 A. R. 
13 A. R. 

4A. R. 
1 A. R. 

8 A. R. 
11 A. R. 
11 A. R. 



Ponders, Moore v. 

Pool V. Cahawba R. R. Co, 5 A. R. 



Pope, 



", Cunningham v. 
-, Harrison v. 
-, McAlpinv. 

- V. Reid, 
-, Suggv. 

Blevins v. 
-, Brahan v. 

- V. Brandon, 
r, Desha v. 
-, Hai'kins v. 



, Hazlehurstv. 

V. Headen, 
•, Jones V. 

V. Lewis, 
•, Martin v. 
■, Munnv. 

• V. Murray, 
■ V. ISTance, 

• V. , 



V. 



, Puckett V. 

, Rake v. 

V. Randolph, 

V. Robinson, 

V. Stout, 

, Taylor V. 

, Wafer v. 

V. Wilson, 

Porter v. Cotney, 

, Heifner v. 

, Kemp V. 

, V. 

, Kidd V. 

V. Nash, 

, State V. 

V. Worthington, 

Portis V. Creagh, 

" -, Dean v. 

Posey V. Conaway, 

V. Decatur Bank, 

, Donelson v. 

j= V. Hair, 

iPost, Lewis V. 
Poftier V. Barclay, 
Potts, Duncan v. 
Powe, McLeod v. 

V. Sterrett, 

V. Tyson, 

Powell V. Allred, 



9 A. R. 
16 A. R. 

M. 

15 A. R. 
2 S. & P. 

7 A. R. 

IS. 

2S. 

6 A. R. 

10 A. R. 

16 A. R. 
2 S. & P. 

5 A. R. 

6 A. R. 
4 A. R. 
6 A. R. 

'' 2S. 

6 A. R. 

M. 

. IS. 

IS. 

3 A. R. 

7 A. R. 
13 A. R. 

1 S. 
■ 1 S. 
3 A. R. 
6 A. R. 
7A. R. 
3 A. R. 

12 A. R. 

6 A. R. 

7 A. R. 

13 A. R. 
1 A. R. 
1 A. R. 

14 A. R. 

4 P. 

11 A. R. 

10 A. R. 

12 A. R. 

13 A. R. 
12 A. R; 

1 A. R, 

15 A. R. 
5 S. & P, 

12 A. R 

16 A. R 
15 A. R 

11 A. R 



451 

761 
604 

77 
678 
669 
567 
815 
237 
615 
167 
316 
826 
196 
371 
135 
401 
690 
493 
321 
259 
433 
154 
487 
532 
498 
489 
299 
354 
220 
552 
161 
214 
415 
375 
190 
154 
690 
314 
, 470 
172 
138 

91 
452 
688 
584 
332 
104 
811 
802 
752 
:567 

65 
439 

82 

9 

339 

221 

318 



Powell V. Governor, 



- V. Grray, 
-, Jones v.* 

- V. Knox, 
-, Love V. 

-, McGehee v. 
-, Ogdenv. 

- y'. Olds, 

-, V. 

-, V. 

-, Patterson v. 

- V. Powell, 

- V. , 

-, Stodder v. 
-, Strange v. 

- V. Washington, 
-, Williams v. 



V. , 

v. ^Yr^Lgg, 

-—, Wright V. 

Powers T. Bryant, 

— V. Davis, 

, Robb V. 

— ' V. State, 

, Taylor v. 

V. Wright, 



Poyntz, Gazzam v. 
Pratt, Casey v. 
-, Crabb v. 



Presnall v. Mabry, 
Preston, Davis v. 

, Gayle v. 

Prewitt Y. Chapman, 

— T. Garrett, 

'■ — , Houston V. 

V. Marsh, 

V. Neal, 



Price V. Chevers, 

V. Cloud, 

, Judge of Benton 

V. Kirby, 

, Lucas V. 

, Martin v. 

, McCaleb v. 

V. Price, 

, Sawyer V. 

V. Simmons, 

, Stewart v. 

V. Tally, 

V. Thomason, 

V. White, 

V. Wilkinson, 

Prigmore v. Thompson, 
Prim V. Davis, 
Primrose, Quigley v. 
, State V. 



9 A. 


R. 


36 


13 A. R. 


516 


9 A. 


R. 


83 


10 A. 


R. 


544 


1 A.R. 


77 


15 A. 


R. 


824 


16 A. 


R. 


364 


5 A. 


R. 


■58 


8 A. 


R. 


827 


7 A. 


R. 


243 


9 A. 


R. 


861 


7A.R. 


652 


10 A. 


R. 


393 


15 A. 


R. 


205 


7 A. 


R. 


582 


10 A. 


R. 


900 


IS. 


287 


15, A. 


R. 


452- 


15 A. 


R. 


803 


9 P. 


493 


14 A. 


R. 


476 


13 A. 


R. 


161 


8 A. 


R. 


560 


7 


TJ 


9 


6 A. 


R. 


9 


7 A. 


R. 


658 


4 A. 




531 


3 A. 


R. 


285 




M. 


66 


4 A. 


R. 


374 


8 A 


R. 


238 


15 A 


R. 


843 


3 P. 


105 


6 A 


R. 


83 


8 P. 


291 


6 A 


R. 


86 


6 A. 


R. 


128 


8 A 


R. 


846 


1 S. & P. 


17 




M. 


386 


9 A 


R. 


511 


6 A. 


R. 


248 


^6 A. 


R. 


36 


1 A 


R. 


184 


4A 


R 


679 




M. 


68 


12 A. 


R. 


753 


5 A 


R 


578 


6 A 


R 


285 


13 A 


R 


749 


16 A 


.R 


40 


10 A 


R 


946 


11 A 


.R 


.875 


9 A 


.R 


563 


10 A 


.R 


172 




M 


420 


2A 


R 


24 


8P 


247 


3A 


.R 


546 



TABLE OF GASES. 



Ixxv 



Primrose, Stephenson v. 
Prince v. Bank of Columbus, 1 



V. Puckett, 

State, 



Prior, Kirksey v. 
Pritchett, Munroe v. 
Pressor v. Henderson, 
Prout V. B. B. at Decatur, 
-. , Cleriiens v. 



12 
3S 
13 
16 
11 

6 
3 S 

3 



Prude, Pierce v. 
Pruitt V. Clack, 

' , Eindla.y v. 

V. Judge of Barbour 

Co. Co. 16 

V. Lo-;rry, 

» V. Stuart, 5 

Pryor v. Butler, 9 

V. McNairy, 

. ^ — , Wiggins V. 



Quarles v. Glover, 

, Ransom v. 

Quesenberry v. State, 
.(Juigley V. Campbell, 



P. 155 
R. 241 

R. 832 
P. 253 
R. 190 
R. 785 
R. 484 
R. 309 
P. 345 
R. 65 
P»2a6 
P. 195 

E. 705 
P. 101 
R. 112 
R. 418 
S. 150 
P. 430 



Pryor, Sims v. 
Puckett V. Bates, 

V. King, 

V. Pope, 

-, Prince v. 



Pugli V. Currie, 

V. McRae, 



Purdom, Hazard v. 
v., Tipton, 



Purdy, Bostickv. 
•, Harris v. 



Purnell v. Hogan, 
Pursell V. McQueen, 
Puryear v. Beard, 

V. Puryear, 

V. , 



-, Weaver v. 



Pyke V. Searcy, 
Pyne, Green v. 



Q 



4 A. R. 674 
16 A. R. 437 
3 S. & P. 308 

5A. R. 76 



Quigley v. Campbell, 
v. Primrose, 



Quinn y. Adair, 
V. Wiswall, 



5 A. R. 
4A. R. 
2A. R. 
3 A. R. 
12 A. R. 
5 A. R. 
2 A. R. 

3 P. 
9 A. R. 

5 S. & P. 
IS. 
5 S. & P. 
9 A. R. 
14 A. R. 
12 A. R. 
16 A. R. 
M A. R, 941 

4 P. 52 
1 A. R. 235 



12 A. R. 58 

8 P. 247 

4 A. R. 315 

7 A. R. 64& 



592 
390 
570- 
552 
832 
446 
393 

43 
914 
105 
231 
192. 
380 > 
121 

13 
486 



R 



Rabb, Halsted v. 
Rabun, Mclnnis v. 
Radcliff, Dearman v. 

— : V. Erwin, 

Radford. Eiland v. 
Ragan, Ulrick v. 
Ragland, Brahan v. 

, — V. 

V. Milam, 

Ragsdale, Hall v. 

V. Bowles, 

Raif or d. State v. 
Rainey, Glover v. 

— '■ , Lenoir v. 

. — '- — V. Long, 

, Treadwell v. 

Hains v. Ware, 
Rake v. Pope, 
'Ramsey v. Johnson, 

, M'organ v. 

Randall v. Henry, 
Randle, Gayle v. 

^, -v. 

Randolph v. Carlton, 

V. Cook, 

^ — V. Jones, 

V. Parish, 

V. Peck, 



.8 P. 63 

1 P. 386 

5 A. R. 192 

. M. 88 

7 A. R. 724 

11 A. R. 529 

M. 85 

3 S. 247 
10 A. R. 618 

4 S. & P. 252 
16 A. R. 62 

7 P. 101 

2 A. R. 727 

15 A. R. 667 

9 A. R. 754 

9 A. R. 590 

•10 A. R. 623 

7 A. R. 161 

M. 418 
15 A. R. 190 

5 S. & P. 367 

1 S. 529 

4 P. 232 

8 A. R. 606 

2 P. 286 
10 A. R. 228 

9 P. 76 
4 A. R. 389 



Randolph v. Perry, 

, Pope V. 

— — r — V. Rosser, 

V. 



2 P. 376 
13 A. R. 214 



Randon, Mendenhall v. 
Rankin v. Crovrill, 
Ransom v. Peters, 
V. Quarles, 



Rapelye, McMichael v. 
Robinson v. 



Rapier, Hawkins v. 

V. Holland, 

Rasco V. Willis, 
Raser, McRae v. 
Rathboue v. Bradford, 
Dean v. 



Rather v. Owen, 
V. State, 



Ravisies v. Alston, 
Rawlings, Rogers v. 
Ray V. Lynes, 
, Snow V. 



Raymond, Smith v. 
Rea V. Lewis, 
Read, Avent v. 

— , v. 

V. Carson, 

V. Goker, 



7 P. 

7 P. 

3 S. & P. 

M. 

2A. R. 

16 A. R. 

4 A. R. 

2S. 



249^ 

238 

251 

125 

647 

437 

383 

86 

M. 113 

M. 17a 

5A. R. 38 

9 P. 122. 

1 A. R. 312 
15 A. R. 328^ 

IS. 3& 

1 P. 132 
5 A. R. 29T 

8 P. 325 
10 A. R. 63. 

2 A. R. 344: 

9 P. 459 
M. 382 

2 S. 488 
2 P. 480 

M. IX 
IS. 22 



Ixxvi 

Read v. Owen, 

Ready v. Mayor of Tus^' 

. V. Thompson, 



TABL'E OF CASSe-. 



Reaffh v. Spann, 

Real Estate B'k'g Co, Bell v. 3 A. P 
Reavis v. Garner, 
Redmond, St. John v. 
Redus, Smith v. 
Redwood, Levert v. 
— , Newhouse v. 



9 P. 180 

a, dA. R. 327 
4 S. & P. 52 

3 S. 100 

77 

661 

428 

99 

79 



Reed r. Brasher, 



, Drake v. 

. — V. Fawkes, 

. — y. Hudson, 

— — — , McDaniel v. ' ,. • 

'■ — V. Perkins, ' ^ - 

— .. V. Smith, 

ileese v. Billings, 

V. Bradford, 

_ , Lamkin v. 

— . , State V. 

__ , Taylor V. 

- . ■ V. White, 
Reeves, Mahone v. ' 

., McGintry v. .,*. 

V. Wallace, 

Reid V. Bibb, 

V. Brasher, 

. ■ — , Cobb V. 

— V. Davis, 

___ — V. Dunklin, 

V. Edwards,' 

, Farmers' Bank- v. 

. . — Y.Gordon, 

^. Jackson, 

. , McDougald v. 

V. Owen, 

. Y. P. and M. Bank, 

, Perkins v. . ' 

. , Pool V. 

— , State V. 

Rembert v.- Brovm, 
Remy v. Duffee, 
Renfro, ex parte,- 

. v. Heard, 

V. Kelly, 

Reynolds v. Bell, 

, Bender v. 

. — , Carville t. 

V. Culbreath, 

v. Dothard, 



4S. 
13 



83/ 

170 



Reynolds, Julian v. 

■ V. IMcClure, 

, BIcNeill V. 

, Pharr v. 



612 
360 
365 



Hogan V. 
Howell V. 
Julian \. 



12 A.- R 
9 P. 

' 9 A. R. 
'9 P. 
7 A. R. 598 
3 P. 375 
3 P. 378 
9 p. 438 
& P. 192 
■ 9 P. 623 
A. R. 570 

12 A. R. 615 
14 A. R. 231 
liA. R. 380 

9 A. R. 263 

13 A. R. 

7 A. R 
M. 266 

4' A. R/121 

2 A. R. 306 
11 A. R. 345 
10 A/R. 1-87 

1 P. 116 
5'A;JR.'2S1 

3 A. R. 88 
7 P. 448 

2 S. 444 

4 A.R.. 83 

5 a: R; 205 
7T..508 

.3 A.'R. 299 

2"S. 469 

1 A. R.-207 

5 A. R. 810 

9 P.- 435 

3 A. R. 71^ 
14 A. R. 536 
15. A. R. 826 

1 A. R 
14 A. R 

4 A. R 

8 A. R. 490 
14 A. R. 23 

10 A. R. 338 
9. A. R. 325 
•3A. R. 5.7 

12 A. R. 446 

9. A. R. 969 

14A. R.5pl 

7 A. R. 664 

11 A. R. 53J 

8 A. K 59 

12 A. R. 128 
8 A. R..680 



■X" 



V. Reynolds, 



11 A. 
13 A. 

9 A, 
3 A. 

9 A 
11 A. 



. H. 960 
R. 159 
, R. 313 
. R..521 
. R..560 
R.1023 



—, , Scarborough v-. 

V. "Speers, 

Rliea, Anderson v. 
— — r— , Bellv. 

~^, Garrett v. 

v. Hughes, 

, , ^ ^ V. 



Taylor V. 
Wallis V. 



Rhodes, Blair v. 

^, Br, B, Decatur, v, 

-r- — V. Ijames, • 

, Larkins v. 

V. Leeds, 

, Morgan y. 

v.^ Roberts, 

v. Sherrod, 

, "■ ■ V. 



y. Sneed, 

■ — V. Storr, 

. , Tuscumbia R. R, 

" Co.y.' 
Rice y. Brantley, 

— , Kennedy v. , . , 

^ -. — v.. Richardson,- . 



15 A. J. 39-8 

1 12. A. R. 252 

IS. 34 

7 A. R.-lM 

1- A. R. 83 

9 A. R.134 

' 1 A.R.^219 

1 A. R.^609 

M. 4l'4 

12 A. R. 64& 

■ 10 A. R. 451 

: 5 A. R. 648 

11 A. R. 283 

7 A. R. 574 

5 P.. 195 

3S. &P. 

1 S. 

IS. 145 

*'aA.R. 63 

5 A. R. 683 

/' 'M.403 

7 A. R. 346 



212 
70 



Ri«h, Colvin y. 
-, Slitchell v. 



Riclfiai-ds, 'Black v. 

, y; Griffin, 

,-i ^— ■ y. Hassard, 

y. Vanner, 



Richardson t.^Bean, 

— '■ , Bumpass v. 

y. Cleayeland, 

y. Farnsworth, 

, Gookin v. 

^ , Harris y. 

-^ , Henderson y. 

. y. Humphreys^: 

. y, Hobart, 

■, Lunsford v. 

, IMayor of Mobile v. 

-, Meredith y. . . 

-, Rice y. , • 

V. Richardson, 

, Sanford v. 

r = — , Tankersley y. 

-L- , Tarver v. 

' — '. y. Williams, 



8 A. R. 206 
S A. R. 184 
1 A. R.-. -11 
3A. R.'4&8- 

3 P. 175 
r.i'A. E. 228 
2 S.- & P. 338 
. 5 A, R. 195 

I S.&P.139 
4S. &P. 64 

.-5 P. 27 

' 1 S. 16 

5 P. 251 

IS. 55 

II A.'R. 889 

M. 97 

5 A. R. 349 

M. 3'83 

1 S. 500 
5 A. R, 618 

. IS.&P." 12- 

10 A. E. 828 

3 A;--R. 428 

4 P. 467 
1A;R.182 

2 S. 130 
2S. &P.331 

2 P. 239 

5 P. 234 
f 5 P. 515 



TABLE OF CASES. 



Ixxvii 



Kicketts v. Garrett, 

_ , V. 

Kicks V. DiUahunfy, 

~- V. Hall, 

lliddle V. Abercrombio, 

, Beason v. 

V. Driver, 

-, Norwood V. 

-, V. 

-, Plowman v. 
-, V. 



— V. Rourke, 
Towns V. 



Ridgel, Dunham v. 

V. Dale, 

Ridgeway, McLelland v. 
Rigeaud, Eslava v. 
Riggs V. Andrews, 

V. McDonald, 

V. State Bank, 

— V. , 

Riley v. Marshall, 

, Morrow v. 

Rinaldi v. Rives, 
Ringgold, Jefford v. 
Ringstaif, Hughes v. 
Ripitoe V. Hall, 

—. , Oden V. 

Ripley v. Coolidge, 
Rist, Warren v. 
Ritchie, Findley v. 
Rivers v. Dubose, 

v. Loving, 

, Scott v. 

, — V. • 

Rives, Jones v. 

, Knox v. 

, McBroom v. 

V. McLosky, 

, Myer v. 

, Otey v. 

, Rinaldi v. 

, Sanders v. 

— V. Wilborno, 

' — , Winston v. 

Roach, Andrews v. 
Roane, Langdon v. 
Robb V. Powers, 
■ Robbins, Chilton v. 

, Givens v. 

, V. 

V. Governor, 

V. 



Roberds, Grayham v, 
Roberts v. Adams, 

V. , 

V. Anderson, 

V, Becson, 



l—K 



11 A. R. 

9 A. R. 

8 P. 

4 P. 

3 A. R. 

11 A. R. 

12 A. R. 

8 P. 

9 P. 
1 A. R. 

7 A. R. 

14 A. R. 

1 A. R. 

2 A. R. 
2 S. & P. 
16 A. R. 
12 A. R. 

3 A. R. 

8 A. R. 
1 A. R. 

11 A. R. 
11 A. R. 

5 A. R. 

15 A. R. 

1 S. 

6 A. R. 
11 A. R. 

IS. 

4 A. R. 

M. 

16 A. R. 

8 P. 

10 A. R. 

IS. 
1 S. & P. 

I S. & P. 
3 A. R. 

14 A. R. 

IS. 

5 S. & P. 

11 A. R. 

M. 

IS. 

3S. 

6 A. R. 

4 S. & P. 

3 A. R. 

6 A. R. 

7 A. R. 

4 A. R. 

5 A. R. 

II A. R. 

6 A. R. 

7 A. R. 
7 A. R. 

6 P.* 

8 P. 

M. 

4P, 



, 806 
,529 
,134 

178 
728 
743 
590 
343 
425 
195 
775 
169 
394 
694 
402 

36 
482 
363 
628 
641 
160 
183 
682 
710 
174 
544 
563 
166 

68 

11 
086 
452 
475 
395 

19 

24 

11 
249 

72 
330 
760 
401 
174 
109 

45 
269 
590 
518 
658 
223 
676 
156 
839 

79 
719 
361 
297 
113 
104 



Roberts v. Brownrigg, 

V. Burke, 

V. Connally, 

, Godbold V. 

V. Henry, 

V. Johnson, 

V. Kilpatrick, 

V. Mason, 

, Pettus V. 

, Rhodes V. 

V. State Bank, 

V. Stodder, 

V. Taylor, 

, V. 



V. Trawick, 

V. Weatherford, 

Robertson, Armstrong v. 

, Allen V. 

V. Beavers, 

V. Breedlove, 

V. Coker, 

, Johnson v. 

V. Kennedy, 

V. Lea, 

V. 



V. Locke, 

, May V. 

, Mitchell V. 

Robinson, Adams v. 

, Ansley v. 

, Bell V. 

, Bennett v. 

, Boughton V. 

, B. B. Hunts ville 

V. Cox, 



V. Craig, 
V. Crenshaw, 
V. Curry, 

V. 

— V. Farelly, 
— , Forrest v. 
— , V. 

— V. Garth, 
— , Glover v. 

— v. Hamilton, 
— , Hardwick v. 

— V. Mauldin, 
— , Pope V. 

- — V. Rapolyc, 

— V. Robinson, 
— , Rugely V. 
— , Sadler v. 
— , Smith v. 

— v. Starr, 

— V. State, 

— V. Steele, 



9 A, R. 106 

6 A. R. 348 
14 A. R. 235 

7 A. R. 662 

2 S. 42 

2S. 13 

5 S. & P. 96 

1 A. R. 373 

A. R. 811 

1 S. 145 

9 P. 312 

3 S. & P. 215 

4 P. 421 



13 A 
10 A 

2 A 
16 A 



251 

83 



72 

164 

R. 106 

3 P. 385 

7 P. 541 
11 A. R. 466 

8 P. 486 
1 S. 245 
1 S. 141 
1 S. 138 

6 A. R. 246 
13 A. R. 86 

15 A. R. 412 

M. 285 

16 A. R. 793 

1 S. 193 

3 S. & P. 227 
11 A. R. 922 

V. 5 A. R. 623 
M. 84 
2 S. & P. 91 
16 A. R. 50 
2 S. & P. 276 
6 A. R. 842 
11 A. R. 266 
16 A. R. 472 

4 P. 
2 A. R. 
6 A. R. 

M. 101 

4 S. & P. 91 

I S. & P. 99 
11 A. R. 977 

1 S. 415 

2 S. 86 
11 A. R. 947 

10 A. R. 702 

2 S. 520 

II A. R. 270 

11 A. R. 840 

3S. 90 
5 A. R. 706 
5 A. R. 473 



44 
215 

204 



Ixxviii 



TABLE OF CASES. 



Eobinson, Wade v. 
V. AYindham, 

— r Wofford V. 

Rochelle v. Harrison, 
Rochon V. Lecatt, 

V. , 

Rockett, Lacy v. 
Roden v. Murphy, 

V. Roland, 

Rodgers v. Russell, 

V. Waters, 

Roebuck v. Pupuy, 



1 S. 423 

9 P. 397 

7 A. R. 489 

8 P. 351 

1 S. 609 

2 S. 429 
11 A. R. 1002 

10 A. R. 804 

1 S. 266 

11 A. R 456 



2 A. 
2 A. 
2 A. 



Roffe, Tarver v. 
Rogan, Massey v. 
Rogers, Cunningham v. 

, Eldridge v. 

, Givens v. 

, Marchbanks v. 

, Mayor Columbus 

V. Rawlings, 

V. Smiley, 

V. — , 

, Smith y. 

, Taylor v. 

, Walters V; 

V. Wilson, 

Roland, Roden v. 
Rolston V. Click, 
Ronalds, Horton v. 
Rone, Sexton v. 
Roper, Burdine v. 

— , Garnett v. 

V. McCook, 

, Stephenson v. 

Rose V. State, 
Ross, Acre v. 

, Clendening v. 

, Crothers v. 

, Foster v. 

, Hughes V. 

, AVard v. 

V. Wells, 

, Wiswall V. 

— , White T. 

Rosser V. Bradford, 

— V. Randolph, 

, V. 

Rossett V. State, 



R. 644 

R. 352 

R. 535 

7 A. R. 484 

7 A. R. 873 

6 A. R. 647 

14 A. R. 147 

M. 392 

11 A. R. 543 

1 S. 148 

. lOA.R. 37 

8 P. 325 



2 S 



49 



IS, 



&P 

2 P. 249 

& P." 317 

M. 197 

9 A. R. 834 

M. 407 

1 S. 266 

1 S. 526 

2 P. 79 
7 A. R. 829 
7 A. R. 466 

10 A. R. 842 
7 A. R 
5 A. R 
M 



318 

182 
28 



3 S. 288 
& P. 267 



800 
421 
258 
136 
139 



15 A. R 

M, 

1 S. & P, 

1 S, 

1 s, 

4 P. 321 
5 S. & P. 123 
9 P. 354 
7 P. 238 
7 P. 249 

16 A. R. 362 



Rossiter, Norwood v. 
Roundtree v. Holloway, 

V. Selma R. R. Co, 

V. Smith, 

V. Weaver, 

Rourke, Riddle v. 
Rouse V. Jayne, 



3 A. R. 134 

13 A. R. 357 

7 A. R. 670 

1 S. 157 

8 A. R. 314 
1 A. R. 394 

14 A. R. 727 



■, Mayor of Mobile v. 8 A. R. 515 



Rowan, Baker v. 2 S. & P. 361 

V. Wallace, 7 P. 171 

Rowdon Y. Young, 12 A. R. 234 
Rowland v. Boozer, 10 A. R. 690 

V. Ladiga, 9 P. 488 

V. Logan, 11 A. R. 663 

, Milton V. 11 A. R. 732 

4 A. R. 344 
3 P. 436 

15 A. R. 309 

15 A. R. 28 
8 A. R. 171 

M. 18 
10 A. R. 702 

12 A. R. 64 

5 A. R. 403 
4 A. R. 212 

2 S, 160 
7 P. 106 

10 A. R. 535 

13 A. R. 131 
M. 77 

11 A. R. 352 
13 A. R. 149 

7 A. R. 798 

3 S. 53 
7 P. 276 

11 A. R. 456 

2 S. 420 

11 A. R. 497 

16 A. R. 352 
7 A. R. 469 

,13 A. R. 196 
2 S. 400 
11 A. R. 557 
11 A. R. 590 
Rutherford t. Br. B. Mobile, 14 A. R. 92 
Ryan, ex parte, 9 A. R. 89 

V. State, 13 A. R. 514 

Ryder v. Innerarity, 4 S. & P. 14 
Ryland v. Bates, 4 A. R. 342 
. V. 6A. R. 668 



Royall, Sample v. 
Royster v. Watkins, 
Royston v. Howie, 
Ruddle, Smith v. 
Ruff, Graham v. 
Ruffin, Moreland v. 
Rugely V. Robinson, 
Rumph V. Abercrombie, 
Rushing, Bingham v. 

, Hill V. 

, Taylor v. 

Russell V. Barrow, 

V. Hester, 

V. Irby, 

— , Kennedy v. 

V. La Roque, 

V. , 



, Mitchell V. 

V. Peirce, 

, Rogers v. 

, Teague v. 

, Tilton V. 

Rust V. Paine, 
Rutland v. Pippin, 
Rutledge, Br. B. Mobile v 

V. Rutledge, 

, Spence v. 

V. 



s 



Sadler v. Fisher, 

V. Houston, 

V. '■ — , 



V. Robinson, 



3 A. R. 200 

5 S. & P. 205 

4 P. 208 

4 S. & P. 130 

2 S. 520 



Saffold, Thompson v. 2 S. 494 
Saint V. Ledyard, 14 A. R. 244 
Sale V. Br. B. at Decatur, 1 A. R. 425 
Salle, Kornegay v. 12 A. R. 534 
, Lecatt V. 1 P. 287 



TABLE OF CASES. 



Ixxix 



Salle, Lecatt v. 

V. Light, 

Salles, Garrow v. 
Sally V. Capps, 

— V. Gooden, 

Salter v. Cain, 

V. Pearce, 

Saltmarsh v. Beene, 

V. Evans, 

, V. 

V. P. and M. Bank, 

V. Tuthill, 



Sample, Baskin v. 

, Moore v. 

V. Royall, 

Samples v. Walker, 
Sampson v. Gazzam, 
Samuels v. Ainsworth, 

, Alford V. 

V. Findley, 

Sanders v. Br. B. Decatur, 

, Evans v. 

V. Fisher, 

V. Ochiltree, 

V. Rives, 

V, Watson, 

Sanderson, Ivey v. 
Sanford, ex parte, 

, Mitchell V. 

V. Richardson, 

V. Spence, 

, Teer v. 

, Whitaker v. 

V. Wicks, 

Sankey v. Elsberry, 

V. Sankey, 

V. , 

Sargent, Olds v. 



Sartin v. Weir, 
Saunders, Arthur v. 

V. Camp, 

V. Coffin, 

V. Hendrix, 

, State V. 

Savage v. Benham, 
, Creagh v. 



V. Dixon, 

, English V. 

v. Forward, 

, Hearrin v. 

Savery v. Spence, 
Sawyer v. Ballew, 

V. Bradford, 

V. Fitts, 

V. , 

V. Hill, 

V. Patterson, 



3 P. 115 

4 A. R. 700 

1 S. 499 
1 A. R. 121 

5 A. R. 78 
7 A. R. 478 
4 A. R. 669 

4 P. 283 
1 S. 132 
IS. 43 

14 A. R. 668 

13 A. R. 390 

A. R. 255 

3 A. R. 319 

4 A. R. 344 
9 A. R. 726 

6 P. 123 

13 A. R. 366 

8A. R. 95 

7 A. R. 635 

lo A. It. ooo 



11 A. 



14 A. 

6 

5 A. 



497 
812 



109 

198 

P. 420 

R. 562 

11 A. R. 695 

1 A. R. 182 

4 A. R. 237 

1 A. R. 525 

R. 522 

R. 369 

R. 455 

R. 601 

607 



13 A 
3 A, 

10 A, 

8 A 
6 A. R. 

M. 

1 S. 

3 S. & P. 

9 P. 

6 A. R. 
16 A. R. 

5 A. R. 
9 P. 

11 A. R. 

14 A. R. 

9 A. R. 
16 A. R. 
14 A 

7 A 



16 A. R. 

13 A. R. 

4 P. 

6 A. R. 

4 S. & P. 

2 P. 

12 A. R. 

11 A. R. 523 



320 

37 

421 

626 

73 

421 

224 

326 

49 

454 

959 

257 

R. 342 

R. 463 

286 

561 

116 

572 

365 

9 

575 



Sawyer v. Patterson, 

V. Price, 

Sayre v. Bank of Mobile, 
, v. 



, Fenno v. 
V. Lucas, 
, McWhorter v. 



Scales V. Alvis, 
, Desha v. 



, Harton v. 

V. Swan, 

, Thomason v. 

Scarborough v. Reynolds, 
SchaeiFer v. Adler, 
Schieifelin, Kemper Nav. 

Co.v. 
School Comm'rs v. Aikin, 

, Criswell v. 

V. Dean, 



617 
356 
308 
166 
163 



Schuesler, Ames v. 

V. , 



State V. 



Scott V. Abercrombie, 
V. Baber, 



— , Baylor v 

— V. Bradford, 

— , Br. B. at Mobile v 

, Christian v, 

— , V. 



V. Dansby, 
V. Hancock, 

, Houck V. 

, lludnall V. 

, James v. 

, V. 

V. John, 
V. Jones, 



12 A. R. 295 

6 A. R. 285 

9 P. 423 

8 A. R. 866 

3 A. R. 458 

2S. 259 

2 S. 225 

12 A. R. 
6 A. R. 

16 A. R. 

M. 

9 P. 

13 A. R. 309 

12 A. R. 252 

14 A. R. 723 

5 A. R. 493 

5 P. 169 

6 A. R. 565 

2 S. & P. 190 
14 A. R. 600 
16 A. R. 73 

3 A. R. 419 
14 A. R. 270 

13 A. R. 182 

2 P. 315 

5 P. 443 

. 7A. R 

M. 

1 S. 490 

12 A. R. 714 

3 S. & P. 44 

8 P. 169 

2 A. R. 569 

7 P. 30 



107 
354 



-, V. 

-, Larcher v. 

- V. Macy, 

- V. McCrary, 

-, McKinuish v. 
-, Morgan v. 

- V. Nelson, 

- V. Rivers, 

- V. , 

- V. Stallsworth, 
-, Yarborough v. 
-, Young V. 



9 A. 

15 A. 

5 A. 

2 A. 



Scoggins, Phillips v. 
Scroggins v. McDougald, 
Scull V. Godbolt, 
Seaman v. Dufphey, 
Seamans v. White, 
Searcy v. Fearn, 

, Martin v. 

, Pyke V. 

, Thompson v. 



R. 579 
R. 566 
R. 694 
R. 58 
2A. R. 40 

3 A. R. 250 

1 S. 315 

15 A. R. 662 

M. 81 

3 P. 452 

1 S. &. P. 19 

1 S. & P. 24 

12 A. R. 25 

5 A. R. 221 

5 A. R. 475 

1 S. & P. 
8 A. R. 

4 A. R. 326 
4 S. & P. 159 

8 A. R. 

2 S. & P. 

3 S. 

4 P. 
OP. 



28 

382 



656 

128 

50 

52 
393 



Ixxx 



TABLE OF (JxVSES. 



Seaton, Smith v. 
Seawellv. Henry, 
Seay, State v. 
Secor V. Woodward, 
Seed, Vaughan v. 
Self V. Herrington, 
Sellers v. Smith, 
Selma R. R. Co, Hall v. 

V. Rountree, 

V. Tipton, 

Senter, Gillian v. 
Sergent, Wilson v. 
Severance, Palmer v. 

, V. 

, V. 

Sewall V. Bates, . 



— — , Durettv. 

V. Franklin, 

r V. Glidden, 

V. Henry, 

, StOTve V- 

Sexton V. Rone, 
Shackleford, King v. 

) V. 

, Mardis v. 



, Miller v. 

v. Ward, 

, Williams v. 

Shanklin v. Johnson, 
Shannon, White v. 
Sharpe, Clifton v. 

' — v.. Hunter, 

Shaver, Head v. 
Shaw V. Boyd, 

V. B. B. at Decatur 

V. Wallace, 

V. Yarborough, 

Shearer v. Boyd, 

, Lazarus v. 

Shofiield, Greening v. 

, Lewis v. 

, McGee v. 

V. Parmlec, 

V. Parsons, 



Shehan, Chandler v. 
— , Hampton v. 

V. :, 

Shelby, Adams v. 
Shelley, Estill v. 
Shelton v. Armor, 

V. Carroll, 

V. Eslava, 

, Hazzard, 

V. Simmons, 

, State V. 



Stedr 



G A. 

3 

8 A. 
7 A. 

11 A. 

11 A. 

6 A. 

7 A. 

5 A. 

9 A. 

12 A. 

8 A. 

9 A. 
10 A. 

2 

3 

2 A. 

2 

1 A. 

9 A. 

3 S.& 

7 A. 

6 A. 

13 A. 
4 A. 

6 A. 
16 A. 

3 A. 
16 A. 

9 A. 
3 A. 

15 A. 

16 A. 
9 A. 

1 S. & 
16 A. 
2S. & 
3 A. 
10 A. 

2 A. 

1 A. 

3 S. & 
' 8 A. 
3 S. & 

7 A. 

7 A. 

8 A. 

10 A. 
o 

13 a" 
16 A. 

6 A. 

15 A. 

12 A. 

3 

1 S. & 

1 A. 



M. 75 

R. 226 
S. 123 
R. 500 
R. 740 
R. 489 
R. 204 
R. 741 
R. 670 
R. 787 
R. 395 
R. 778 
R. 53 
R. 751 
R. 346 
S. 462 
S. 199 
R. 669 
P. 493 
R. 52 
R. 24 
P. 67 
R. 829 
R. 423 
R. 435 
R. 493 
R. 433 
R. 95 
R. 37 
R. 318 
R. 271 
R. 280 
R. 618 
R. 765 
R. 791 
P. 83 
R. 708 
P. 193 
R. 589 
R. 279 
R. 718 
M. 276 
R. 134 
P. 351 
R. 889 
P. 302 
R. 251 
R. 295 
R. 942 
R. 478 
P. 185 
R. 647 
R. 148 
R. 230 
R. 62 
R. 466 
S. 343 
P. 208 
R. SO 



Shepherd v. Xa])ors, 
Sheppard, Arnold v. 

'■ — V. Buford, 

V. Iverson, 

V. Kain, 

V, Melloy, 

, Shropshire v. 

, Watts v. 

, Wellborn v. 

V. Wilkins, 



Sherrod v. Rhodes, 

Shields v. Alston, 

V. Byrd, 

, Caller v. 

, Houptv. 

V. Lyon, 

Shirley v. Pcllows, 

, ■ Woodley v. 

Shipman, Davidson v. 
Shippey v. Eastwood, 

■ — , Nabors v. 

Shrader v. Walker, 
Shreeve v. State, 
Shropshire, Corley v. 
Shopper d, 



6 A. R. 631 
6 A. R. 299 
7A. R. 90 

12 A. R. 97 
9 A. R. 119 

12 A. R. 561 

3 A. R. 733 
2 A. R. 425 
5 A. R. 674 
lA. R. 62 

5 A. R. 683 
9 A. R. 63. 

4 A. R. 248 
15 A. R. 818 
2 S. & P. 417 

3 P. 247 

M. 278 

- 9 P. 300 

• M. 

6 A. R 
9 A. R 

15 A. R 



Shorter, Iverson v. 
Shortridge v. Easlev, ' ' 

, Pitts V. 

Shuford, Hunley v. 
Shutc V. McRae, 

V. McMahon, 

Sidney v. White, 
Silburn, Tankersley v. 
Simerson v. B. B. at Deca- 
tur, 
Simington v. Kent, 
Sinipkins, Sprovrl v. 
Simmons v. Augustin, 

, Beckv. 

, Clark V. 

, Duncan v. 

, Love V. 

, Price V. 

, Shelton v. 

, vSpence v. 

, State V. 

, Trammell v. 

Simonds v. Guile}', 
Simonton, ex parte. 



, Crawford v. 

V. Steele, 

Simpson, Batrc v. 
, Brown \. 



8 A. 
11 A. 

2 A. 

3 A. 



14 
27 
198 
293 
R. 244 
R. 676 
R. 66 
R. 733 
9 A. R. 713 

10 A. R. 520 

7 A. R. 494 

11 A. R. 203 
9 A. R. 931 

10 A. R. 76 

12 A. R. 728 

M. 185 

12 A. R. 205 

8 A. R. 691 
3 A. R. 515 

3 P. 69 
7A. R. 71 

4 P. 14 
2 S. & P. 356 

10 A. R. 113 
R. 749 
R. 466 
R. 828 
R. 497 
8 A. R. 271 
7 A. R. 721 



13 A. 

12 A. 

16 A. 

3 A. 



, Bryant V. 

, cxparie, 

, Gai'ner v. 

, Lacyv. 



P. 383 

P. 390 

P. 110 

R. 357 

R. 305 

3 S. 331 

3 S. 339 

A. R. 842 

M. 67 

M. 33 



TABLE OF -OASES. 



Ixaxi 



Sims, 



Simpson, McLauglilin 

■ V. , 

— ^ V. Pettus, 

— V. Tippin, 

— , Watsou V. 

-V.Wiley, 

Broadnax v. 

- V. Canfield, 

- V. Glazencr, 
-, Hardeman v. 
-, Johnson v. 
-, Jones V. 
-, V. 

■ Y. Killen, 

■ v. Norris, 
V. Pryor, 
V. Sims, 



, Williams v. 

Sinclair, IMcCall v. 
Singleton v. Finlej", 

V. Gayle, 

, V. 

Skinner v. Frierson, 

V. Gnnn, 

V. McCarty, 

Slack, State v. 
Slade, Crawford v. 
Slaton V. Apperson, 
Slatter v. Glover, 
Slaughter, Hill v. 
Sledge, Bynum v. 

— ' V. Glopton, 

, Haynes v. 

V. Tubb, 

Smclser, Draine v. 
Smiley, Rogers v. 



Smith V. Armistead, 

, Atwood \. 

, Beddo V. 

: — , Beavers v. 

, Bingham x. 

■ ■ — , Blackman v. 

T. Blakeney, 

—, Bloodgoodv. 

— , Bliss v. 

V. Bond, 

V. B. Bank IMobilc, 



-, Brazeal x. 
-, Brumby v. 

- V. Chapman, 

- v. Commissioners, 

- V. Cobb, 
-v. Crockett, 
-, Cullum V. 

- V. Davis, 

-, Pcarinjr v. 



3 S. & P. .S5 

4 S. & P. 88 

7 A. R. 453 

5 S. & P. 208 
5 A. R. 233 

4 P. 215 

8 A. R. 497 

2 A. R. 555 
14 A. R. G95 

3 A. R. 747 
4 S. & P. 330 

6 P. 138 

9 P. 236 

12 A. R. 497 

5 A. R. 42 

5 A. R. 592 

8 P. 449 

2 A. R. 117 

8 P. 579 

14 A. R. 764 

1 P. 144 

8 P. 270 

1 S. 566 

8 A. R. 915 

9 P. 305 

2 P. 19 
G A. R. 07G 

9 A. R. 887 

15 A. R. 721 

14 A. R. 648 

7 A. R. 632 

1 S. & P. 135 

6 A. R. 589 

2 P. 530 
11 A. R. 383 

15 A. R. 423 

2 P. 249 

2 S. & P. 49 

7 A. R. 698 
11 A. R. 894 

M. 397 

11 A. R. 20 

5 A. R, G51 

8 A. R. 203 

8 P. 128 

14 A. R. 423 

1 A. R. 273 

8 A. R. 386 
5 A. R. 26 
7- A. R. 880 
5 A. R. 206 

3 A. R. 123 

G P. 365 
1 S. 183 

1 S. G2 
M. 277 

G A. R. G25 

2 S. 224 

4 A. £ 432 



Smith, Do Bard x. 

v. Dennis. 

, Dent V. 

V. Donelson, 

— -, Dupree v. 

, Elliott V. 

V. Fleming, 

, Foster v. 

, Frow v. 

, G aylc V. 

, Griffin v. 

•, Ilammett v. 

, Hargrove v. 

, Hart V. 

V. Hoarne, 



, Heirs of Bond v. 
, Hitchcock V. 
V. Hogan, 



-, Ilollinger v. 
-, Ilorton V, 

- V. Houston, . 

- V. 




Leigh V. 

Lewen v. 
V. Life I. k T. Co. 
V. Locke, 

Maddcra v. 

I\Iardis v. 

Mason v. 
V. Maxvrell, 

McCrory v. 
V. McGehee, 

Mcndcnhall v. 

Merrill v. 
V. Miller, 

Minge V. 

Xeai'v. 
V. Nelson, 

Ogden V. 

P. & I\I. Bank v. 

— V. Paul, 

— V. Pettus, 

— V. Raymond, 

— V. Rcdus, 
— , Reed V. 

— V. Robinson, 

— V. -^ , 

— V. Rogers, 
— , Rountrcc v. 



9 A. 

3 A. 
15 A. 
3 S. & 

3 A. 

1 A, 



R. 788 
R. 248 
R. 28G 
P. 393 

736 
74 

768 



R. 

R. 

9 A. R. 

16 A. R. 192 

10 A. R. 571 

M. 83 

14 A. R. 571 
5 A. R. 156 

1 A. R. 80 

15 A. R. 807 

2 S. 169 

2 S. & P. 81 

2 A. R. 660 

3 S. & P. 29 
4A. R. 93 



16 A. 

4 A. 

8 A. 

8 A. 
16 A. 
14 A. 



R. GOO 
R. 367 
R. 73 
R. 736 
R. Ill 
R. 201 

2 S. 222 
15 A. R. G87 
15 A. R. 264 
11, A. R. 618 
10 A. R. 92 

7 A. R. 175 

14 A. R. 279 

5 A. R. 583 

7 P. 428 

4 A. R. 558 
4- A. R. 

b a 

2 A. r! 382 

1 S. 275 

1 S. & P. 221 

1 A. R. 157 

14 A. R. 404 

M. 38Q 

12 A. R. 569 

3 S. 280 
1 A. R. 415 

5 A. R. 5G8 
R. 320 
R. 428 
R. 41Q 



2§^ 

ii9 



6 A. 
14 A. 
14 A. 



8 P. 503 

I S. & P. 107 

9 P. 459 
9 A. R. 

14 A. R. 

II A. R. 
11 A. R. 
1 S. & P. 

1 S. 



99 
380 
270 
840 
517 
157 



IxKxii 



TABLE OF CASES. 



Smith 



1-. Ruddle, 
V. Scaton, 
, Sellers v. 
V. Smith, 
V. State, 
V. , 



V. , 

, State Bank v. 

V. Strader, 

V. Taylor, 

, Tompkins v. 

, Turk Y. 

, "Warnock v. 

, Webster v. 

V. Wiggins, 

V. Winthrop, 

V. , 

, Woodward v. 

■ V. Zaner, 

V. Zurcher, 

Smithson, Goodlet v. 

, Thomason v. 

Smoot. V. Fitzhugh, 

, Henry v. 

V. Lecatt, 

V. Morehouse, 

Smyley, Lee v. 
Snead v. Barringer, 

, V. 

, Miller V. 

, Rhodes v. 

Snedicor v. Barnett, 

, Beal V. 

V. Carnes, 

V. Leachman, 

Snelgrove v. B. B. Mobile. 
Suell, BoAven v. 

, V. 

Snoddy v. Watt, 
Snodgrass v. Cabiness, 
Snow, Anderson v. 

, V, 

, Brandon v. 

V. Ray, 

Somerville, Gillespie v. 
V. Jones, 



McBroom v. . 
V. Merrill, 
V. Stephenson, 
Y. Williams, 



Sorrelle v. Craig, 



, Daniel y. 

V. Elmes, 
, Hoot V. 

V. Sorrelle, 



15 A. R. 

M. 

11 A. II. 

13 A. R. 

1 S. 

7 P. 
9 A. 
G A. 

9 

9 A. 

3 S. & 

2 P. 

14 A. R. 
10 A. R. 

3 S. 
M. 
M. 

7 A. R. 

4 A. R. 
9 A. R. 

5 P. 

7 P. 
9 P. 

M. 
1 S. 

8 A. R. 
10 A. R. 

1 S. 
3 S. 

M. 
M. 

9 A. R. 

8 P. 

8 A. R. 

10 A. R. 

5 A. R. 

9 A. R. 

11 A. R. 
9 A. R. 

15 A. R. 

8 A. R. 

9 A. R. 

2 S. 
2 A. R. 

3 S. & P. 
IS. 
IP. 
2S. 
IP. 

3 S. 
1 S. 

8 A. R. 

9 A. R. 
15 A. R. 

9 A. R. 
G A. R. 
11 A. R. 
5 A. R. 
5 A. R. 



28 

75 
204 
329 
500 
492 
990 

75 
440 
033 

54 
155 
150 
429 
221 
378 
425 
112 

99 
208 
245 
144 

72 

18 
590 
370 
773 
134 
201 

27 
403 
434 
523 
055 
330 
295 
481 
379 
009 
100 
504 
247 
255 
344 
447 
345 
437 
515 
107 
271 
484 
506 
534 
789 
430 
700 
380 
245 
570 



Sorsby, Meador v. 
Sossamon v. Gamble, 
South all Y. Clark, 
Southerland, Alsobrook v. 
Southwick, Marr y. 
Spaight, Johnson v. 
Spain V. GroYe, 
Spaun Y. Boyd, 
V. Cole, 



2 A. R. 712 



, McBeath v. 

, Pieagh V. 

Y. State, 

, Strawbridge v. 

Spear, Boughton y. 

— V. Walkley, 

Spears v. Cross, 

, Morrison v. 

Williams 



Speers, Reynolds y. 
Speight Y. Knight, 
Spence v. Barclay, 

, Campbell y. 

— , Cogburn y. 

, Decatur Bank y. 

, DriYer v. 



Y. Duren, 
Eldridge y. 
McLane y. 



Y. ^McMillan, 
Y. Mitchell, 
, Moore y. 
V. Rutledge, 



, Sanford v. 

, Savery v. 

Y. Simmons, 

, Spyker y. 

, State V. 

Y. Thompson, 

Y. Tuggle, 

— V. Walker, 

V. Whitaker, 

Spencer, Kennedy y. 



Wrio-ht Y. 



Spinks, Thompson v. 

, Catterlin v. 

, Vastbinder v. 

Sprague v. Morgan, 
Springfield, Bohannon v. 
Burwell v. 



Spruil Y. Cooper, 
Sprowl V. Kellar, 

V. Simpkins, 

Spyker y. Spence, 
Stafford, Foster y. 



4 
538 
267 
351 
27 
177 
480 
473 
537 



M. 

3 S. & P. 
2 S. & P. 

2 P. 
14 A. R. 

M. 

2S. 

13 A. R. 

13 A. R. 

7 A. R. 201 

3 S. 100 

14 A. R. 588 

8 A. R. 820 
4 A. R. 257 

10 A. R. 328 

7 P. 437 
8A. R. 93 

11 A. R. 138 

1 S. 34 
11 A. R. 461 

8 A. R. 581 
4 A. R. 543 

15 A. R. 549 

9 A. R. 800 
1 A. R. 540 
3 A. R. 98 

3 A. R. 

16 A. R. 

6 A. R. 
11 A. R. 

10 A. R. 583 
9 A. R. 744 
G A. R. 506 

11 A. R. 557 
11 A. R. 590 

4 A. R. 237 
13 A. R. 561 
16 A. R. 828 

8 A. R. 333 

7 A. R. 500 

11 A. R. 746 
10 A. R. 538 

7 A. R. 568 

3 P. 297 

4 P. 272 
4 p! 428 
1 S. 576 

12 A. R. 155 
16 A. R. 467 
16 A. R. 385 

7 A. R. 952 

9 A. R. 789 

15 A. R. 273 

16 A. R. 791 

4 S. & P. 382 
3 A. R. 515 

8 A. R. 333 
14A. R. 714 



251 

682 
894 
172 



TABLE OF CASES. 



Ixxxiii 



Stafford, Todd v. 
Stainback, High v. 
Stallings v. Williams, 
Stallsworth, Scott v. 

V. Stallsworth, 

Standifer v. Chisholm, 
V. McWhorter, 



, State V. 

V. White, 

Stanley v. Hill, 

, Jackson v. 

Stanton, Bancroft v. 

, Burnett v. 

, V. 

, Dunning v. 

, Houston V. 

, Pollard V. 

, V. 



Stapler v. Hurt, 
Starke v. Hill, 
V. Keenan, 



V. Marshall, 

Starnes v. Pierce, 
Starr, Bates v. 

, Robinson v. 

State V. Abram, 
V. , 



■ V. Absence, 

- V. Adams, 

- V. , 

-, Alexander v. 

- V. Allaire, 

- V. Allen, 

-, Armstrong v. 
-, Atkyns v. 

- V. Autery, 

- V. Ayres, 
-, Badger v. 

-, Bank of Mobile 
-, Barefield v. 
-, Barnett v. 

- V. Beckwith, 
-V. Bell, 

-, Blackstone v. 

- V. Blackwell, 

- V. Blocker, 
-, Bourne v. 

- V. Bowen, 

-, Boyington v. 

- V. Briley, 

- V. Brinyea, 

- V. Brooks, 

- V, Brookshire, 
-, Browder v. 

- Y. Brown, 

- V. Bullock, 



R. 
R. 
P. 
R. 
R. 
R. 
R. 
R. 
, R. 
R. 
R. 
R. 



1 S. 
1 S. 

6 A. R. 
12 A. R. 

5 A. R. 
1 S. & P. 

1 S. 

2 P. 
5 P. 

9 A. R. 

9 P. 

2 A. R. 

7 A. R.- 
2 A. 

2 A. 

9 
11 A. 

5 A. 
7 A, 

16 A. 

6 A. 

5 A, 
11 A 

6 A, 

3 A. 

2 P. 
6 A. R. 

3 S. 
4A. R. 

10 A. R. 

4 P. 
2 S. 

14 A. R. 

16 A.R. 

14 A. R. 

lA. R. 

M. 

1 A. R. 

1 S. 
M. 

5 A. R. 

M. 

14 A. R. 

15 A. R. 

1 S. 

5 P. 
15 A. R. 

9 A. R. 

14 A. R. 

8 P. 

6 A. R. 

2 P. 
8 P. 

5 A.R. 
9iP. R. 

2 A. R. 
9 A. R. 

. 4 P. 
13 A. R. 



199 

24 
509 

25 
143 
449 
532 
519 
523 
527 
368 
326 
351 
181 
195 
513 
412 
451 
761 
799 
785 
590 
818 
773 

44 
227 
697 

90 
272 
928 
397 
231 
486 
661 
435 
442 
160 
180 
399 

21 
290 
603 
829 
318 
365 
415 

79' 
450 
458 
511 
100 
472 
241 
9 
303 

58 
410 
413 



State Y. Burns, 



Y. Burnett, 
, Caldwell y. 
, Callahan y. 
, Cameron v. 

, V. 

, Campbell y. 
•, Caskey y. 
■ V. Cawood, 

• V. Chambers, 
-, Charles y. 

■, V. 

• Y. Clarkson, 
-, Clark Y. 

- Y. Clarissa, 

- Y. Click, 

• Y. Cloud, 
-, Cobia Y. 

-, Cogging Y. 

- Y. Coleman, 



— , Collier V. 
- — , Collins Y. 

— Y. Commissioners, 
— , Covey Y. 

— Y. CoYington, 

— Y. Craig, 
— , Crawford y. 

— Y. CroAvley, 
— , Culp V. 
— , Davis Y. 

— , DoAYnman y. 

— Y. Duncan, 
Y. Dunham, 

— Y. Dunn, 
, Ellison Y. 

— Y. Estabrook, 
— , Farr y. 

— , Faulk Y. 
— , Fernandez y. 

— Y. Fillyaw, 

— Y. Flanigin, 

Y. Flinn, 

— , Flora Y. 
— , Freeman y. 

— Y. Garner, 

— Y. Gaus, 
, Givens, 

— Y. Glaze, 
— , Graves v. 

— v. Greenwood, 

— Y. Guest, 
— , Hall V. 
— , v. 



313 

227 
140 

327 
379 

546 



8 A. R. 

5 A.R. 
2 A. R. 

1 S. & P. 

2 S. & P. 

14 A. R. 

15 A. R. 383 

16 A. R. 144 

6 A. R. 193 

2 S. 360 
6 A. R. 855 

3 P. 440 

4 P. 107 
3 A. R. 378 

12 A. R. 492 

11 A. R. 57 
2A. R. 26 
A. R. 628 

16 A. R. 781 
7 P. 263 

3 A. R. 14 

5 P. 32 

13 A. R. 602 

2 S. 388 

14 A. R. 608 

3 P. 412 

4 P. 186 

4 A. R. 603 

12 A. R. 363 

M. 143 

13 A. R. 172 

IP. 
4 S. & P. 



33 

83 



14 A. R. 242 



260 
76 
46 
273 
653 
794 
919 
511 
735 
477 



v. Hallett, 
Y. Ilarkins, 
V. Hawkins, 



9 P. 

9 A. R. 

M. 

8 A.R. 
6 A.R. 

6 A.R. 

9 A.R. 

7 A.R. 
3 A.R. 
5 A. R. 

M. 8 

4 P. Ill 
G P. 372 

8 P. 447 

9 P. 633 

5 A. R. 747 
9 A. R. 283 
9 A. R. 447 

5 P. 474 

6 A. R. 778 
9 A. R. 827 

15 A. R. 431 

8 A. R. 159 
6 A.R. 57 

8 P. 461 



ixxxiv 



TA-BLE OF CASES. 



State, Hawkins \'. 



Ilayter v. 

Hill V. 
v. Ilinson, 
V. Ilinton, 

Hodges V. 

Holland V. 

Howie V. 
v. Hughes, 

V. — V, 



Humphrey v. 
V. Ivey_, 
■ V. 



V. John, 



. Johnson, 

, Jones, 
V. 



3 S. & P. 

IP. 

9 A. E. 

7 P. 

I A. E. 

4 A. R. 
6 A. R. 

8 A. Pu 

3 P. 
1 A. E. 

1 A. E. 

2 A. E. 
12 A. E. 

M. 

II A. E. 
12 A. E. 

2 A. E. 

1 A. E. 

2 A. E. 

12 A. E. 

5 A. E. 

13 A. E. 
15 A. 
15 A. 

9 A. 
13 A. 



Jordan v. 15 A. E. 

- V. Judge of Macon, 15 A. E. 

- V. Judge of Mobile, 9 A. E. 

- V. Judge of 9th Cir. 13 A. E. 
-, Judson V. ' M. 

- V. Kennedy, 1 A. E. 

- Y. Kreps, 8 A. E. 
-, Kyle V. 10 A^ R. 

- V. Lassley, • 7 P. 

- V. Lea, 3 A. E. 
-, Ledbettei- v. 10 A. E. 

- T. Ligon, 7 P. 
-, Lindsay v. 15 A. R. 
-, Lloyd Y. M. 
-, Lore V. 4 A. E. 
-, Lynesv. 3 P. 

_Z Y 5 P. 

-'v. Mahan", 2 A. E. 

- V. Marler, 2 A. E. 

- V. Marshall, 8 A. R. 

- V. , 14 A. E. 

- Y, Matthe^vs, 9 P. 
-, Mayv. 9 A. E. 
-, Mayberry y. 1 S. 
-, Maher y. 1 P. 
-Y. Mayor of Mobile, 5 P. 

- Y. McCall, 4 A. E. 

- V. McDonald, 4 P. 
-, McLean y. 1G A. E. 

- V. McLcndon, . 1 S. 
-, McMurry v. G A. R. 

- Y. Middlcton, 5 P. 

- V. Miller, 3 A. R. 
-Y. Monk, 3'A. E. 
-, Mooney y. 8 A. E. 
-, Moore y. 12 A. R. 
_ y, IG A. E. 



63 
475 
137 
150 
559 
071 
804 

55 
202 
113 
055 
102 
458 

04 

47 
270 
127 

95 
290 
840 
600 
153 
740 
740 
338 
805 
150 

31 
951 
230 
526 
002 
241 
167 

43 

34 
173 
348 
230 
340 

43 
302 
411 
370 
107 
200 
205 
279 
643 
449 
672 
195 
324 
484 
343 
415 
328 
764 
411 



State V. Morca, 

, Morgan y. 

V. Moselcy, 

V. Moses, 

Y. jMurphy, 



, Xabors y. 

, Kancv y. 

, Xed Y. 
Y. NciU, 
Y. Nelson, 

, -V. 



2 A. R. 

11 A. E. 

14 A. R. 

M. 

9 P. 

. 6A. R. 

6 A. R. 

A, 

6 A. 



— V. Newman, . 
— , Norris v. 

— , Nugent V. 
— , O'Neill Y. 
— , Ooton Y. 
— , Page Y. 

— Y. Paul, 

— Y. Peter, 
— , Phereby y. 

— Y. Phil, 

— V. Phillips, 
— , Phleming y. 

— y. Pierce, 
— , Pierson y. 

— Y. Pile, 

— , P. and M. Bank 

— V. Plunket, 

— Y. Porter, 
— , Powers Y. 

— Y. Primrose, 
— , Prince y. 

— , Quesenberry y. 

— V. Eaiford, 
— , Rather v. 

— V. Reece, 

— Y. Eeid, 

— , Eobinson y. 
— , Rose Y. 
— , Rossett V. 
— , Ryan v. 

— Y. Saunders, 

— Y. Schuessler, 

— Y. Scay, 

— V. Simmons, 
— , Shelton v. 



, ShrecYC y. 
Y. Slack, 
, Smith Y. 



-,*Spann y. 

- Y. Spence, 

- V. Standifer, 

- Y. Stebljins, 

- V. Stcdman, 



. 6 A, 

7 A, 

GA. R. 

7 A. R. 

16 A. R. 

4 S. & P. 
16 A. R. 

5 A. R. 

11 A. R. 

5 S. & P. 

IS. 

16 A. R. 

IS. 

2 A. R. 

M. 
7 A. R. 

12 A. R. 
5 A. R. 

Y. 12 A. R. 

2S. 

1 A. R. 

4 A. R. 

3 A. R. 
3 S. & P. 
3 S. & P. 

7 P. 

IP. 

M. 

1 A. R. 

5 A. R. 

M. 
16 A. R. 

13 A. R. 

9 P. 
3 A. R. 

3 S. 

3 A. R. 

1 S. & P. 

3 S. 

11 A. R. 

G A. R. 

1 S. 

7 P. 
9A. R. 

14 A. R. 
7 A. R. 

5 P. 
1 S. 
7 P. 



275 
289 
390 
393 
487 
765 
845 
200 
483 
187 
685 
610 
394 

69 
776 

72 

65 
463 
849 

40 

38 
774 

31 
297 

42 
728 
149 

72 
657 

11 
088 
531 
546 
253 
308 
101 
132 
266 
612 
700 

28 
362 
514 
326 
419 
123 
497 
208 
343 
676 
676 
506 
492 
990 
588 
500 
523 
299 
495 



TABLE OF CASES. 



Ixxxv 



State v.' Stephen, 15 A. R, 

-, Sullivan v. 5 S. & P. 

, Swan V. • . 11 A. R. 

, , Tharp v. - •' f ' 'vlSA. R. 
— ■— V. Tomljeck'bee "Bank, 1 S. 



- v." -iai* •# ■ 



- V. Truss, 

-, Tuck.v.' ••••,;' 
-, Tucker v. 
^, Turnipse'ed v;. 

- V. Underwood, 
■r. Walker v. : 

-i V. Ware, 

-, Weissinger v. 

- V. WelcK, '. v-; 
-, Wheat V. 

-V. Whitted, • 

- v.Whitworth, 

- V. William^^, 

- V. ——. — '; 

-Y.^ , 



»^ 



— , Williamson v. 

-f^, Willingham v. 

— " .. .... , Wilson V. ~ ' . • 

^- — -^ V. Wisdom,* f '* 

*■-' —, Worrell V. 

^ , Wragg V. 

t: , ex rel. Battle, 

^^^>-- , ex rel. Nabors, 

Steamer Robert Mollis v. 
Williamson, 

-^ r- Tallapoosa, Liv- 

^ , \ ingston v, . 

"'-^ — '^Triumph, Bierne v.- 2 A. R. 
Sfeariis, Bryant v. . 16 A. R. 



2 S. 

, ■ m: 

■ ■'•• 9 p.. 

"■ 8 A. R. 

16 A, R. 

6. A. R. 

2 A, R. 
6 A. R. 

10 A. R. 

11 A. R. 
ft. '^*7 p 

^* * m!. 

3 A. R. 

8 P.' 

3 S. 
5 P. 

1 A. R. 

15 A. R. 

16 A. R. 
14 A. R. 

IP. 
8 P. 

12 A. R. 
14 A. R. 

7 A. R. 
7 A. R. 



534 
175 

594 
749 
347 
30 
425 
126 
664 
670 
664 
744 
350 
814 
540 
463 
199 
102 
^34 
454 
130 
342 
259 
■431 
539 
118 
511 
732 
492 
259 
459 



6 A. R. 50 



Stebbins, Baldwin, v 

. V. Fitch, ■ 

— • , State V. '. 

V. Sutton, 

, Swift V. 

Stedman v. Shelton, 

~^^ , State V. 

Steele, Agee v. 



■M.. 
1 S. 

1 s. 

2S. 

4 S. & P. 

1 A. R. 

7 P. 

8 A. R. 



,c 



, Br. B. Huntsville V. 10 A. R. 



Brown y, 
■V. Dart,'. 
•, Evans v. ■■'■J 

; Killough Vv 

■ V. Kinkle, 
• V. Knox, 

■ V. Lowry, 
■, Massey V. 
, Mosby V. 
■, Robinson v. 
■, Simonton v. 

V. Worthington, 



* i 



Steelman v. Owen, 

1— L 



9 P. Ill 

738 
302 
180 
180 
299 
249 
447 
86 
495 
948 
915 

798 
114 
262 
352 
608. 
124 
340 
299 
473 
357 
266 
562 



14 A. R 
6 A. R. 

2 A. R. 

I S. & P. 

3 A. R. 
10 A. R. 

6 A. R. 

II A. R. 

7 A. R. 
5 A. R. 
1 A. R. 

7 P. 

8 P. 



Steger, Mead v. 

Stein, Lewis v. 

Stephen, State v. 

Stephens y. Brodnax, 
f-^ — — , Langdon v. 

--^^ — ^ y. Norris, 
j- — — v. Womaek, 

•Stephenson V. Mansony, 

— - ; • V. Primrose, 

,. ■ ' '- y. Roper, 

Sommervillev. ' 



Sterns, e'x parte,. 
■ ^-Sterrett, P'owe v. , 
Stevens v. Dubarry,; 
Evans v. 



Stevenson, Findlay y. 
Stewart y. Anderson, 
- — r^ — , Bradford v. 
— — '■ — v.. Conner, 



5 P. 
16 A. R. 
15 A. R. 

5 A. R. 

6 A. R. 

15 A. R. 
aA. R. 

4 A. R, 

8P, 

5 A. R, 
- 3 S. 
14 A. R, 

16 A. R, 

M. 

8 A. R. 

3 S. 

10 A. R, 

M, 

9 A. R. 
13 A. R 



y. Corp'n of Mobile, 9 A. R 



Craddock v. 
- y. i)esha, 

-, v. 

■, Doswell V. 

■ V. Fowler, 

■ V. Frazier, 

• V. Fry, ,., 
, Harbin v. 

• V. Hood, 
, Hunt V. 
, James v 
, Lecatt V. ' 

y. Lewis, * 
■,. Lowrie v. 
•, Mills V. 

V. "Nuckols, 
, Phares v. 
, Pickett V. 

• V. Price, 

y. Weaver, 
, Whitlbck y, 



>i% 



6 A. R. 
11 A. R. 

6 A. R. 

11 A. R. 
3 A. R. 
5 A. R. 
3 A. R. 

4 P. 
10 A. R. 

7 A. R. 
9 A. R. 

2 S. 
16 A. R. 

8 A. R. 

12 A. R. 

15 A. R. 

9 P. 
12 A. R. 

16 A. R. 

12 A. R. 

13 A. R. 
15 A. R. 

M. 
10 A. R. 



Stibbins v. Butler, ■ 
Stickney y. Huggins, 

v. Judge of Mobile, 10 A. R. 

■ — , Thompson y. 6 A. R. 

Stiggins, James v. 13 A. R. 

Stiles V. Lacy, 7 A. R. 

.V. Lay, 9 A. R. 

Stinnett v. Br. B. at Mobile, 9 A. R. 



Stinson v. Gosset, 
-, Turnly y. 



Stocking V. Conway, 
Toulmin, 



Stockton, George v. 
Stoddard, Clark v. 
Griffin y. 



Stodder, Mallory v. 



4 A. R. 

1 A. R. 

1 P. 

3 S. & P. 

1 A. R. 

3 A. R. 
12 A. R. 

6 A. R. 



498 

,214 

534 

.258 

730 

79 

,738 

.317 

. 155 

,182 

,271 

,597 

,339 

,379 

,517 

, 48 

,504 

, 44 

,803 

94 

234 

, 77 

844 

852 

629 

629 

114 

573 

370 

600 

525 

855 

474 

734 

163 

90 

225 

336 

202 

40 

538 

790 

601 

121 

106 

35 

579 

830 

17 

795 

120 

170 

456 

260 

35 

136 

366 

801 



Ixxxvi 



TABLE OF CASES. 



Stodder v. Powell, 

, Roberts v. 

V. Toulmin, 

Stoker v. Yerby, 
Stokes, McRae v. 
Stollenwerck, Cameron v. 
Stone V. Bibb, 

, Chambers v. 

V. Dennis, 

-, , Fuqua v. 

V. Gover, 

, Hale V. 

V. Harris, 

, Hogan V* 

V. Lewin, 



, Penn v. 

V. Stone, 

Stonum, Governor v. 

, Mayo V. 

, Parks V. 

Storr, Rhodes v. 
Stout, Carville v. 

, Peake v. 

, Pope T. 

V. Ward, 

Stovall V. Nabors, 
Stover V. Herrington, 

-, White V. 

Stowe, Lovrry v. 

V. Sewall, 

Strader v. Alexander, 

V. Houghton, 

, Smith V. 

Strang, Haughy v. 

, Lecatt V. 

Strange v. Keenan, 

V. Powell, 

V. Watson, 

Strahan, Lightfootv. 
Strawbridge v. Spann, 
Street, Pistole v. 
Strickland v. Burns, 
Stringfellow, Clark v. 

■ — , Hughes V. 

' . V. Mariott, 

Strode v. Clark, 
Strong, Brewer v. 
V. Finch, 



1 S. 287 
3 S. & P. 215 

10 A. R. 824 

11 A. R. 322 
3 A. R. 401 
6 A. R. 704 

2 A. R. 100 
9 A. R. 260 

3 P. 231 

1 S. 435 

1 A. R. 287 

14 A. R. 803 

M. 32 

1 A. R. 496 

8 A. R. 395 

3 A. R. 485 

10 A. R. 209 

1 A. R. 582 

11 A. R. 679 

2 A. R, 
8 A. R 



Strong V. Strong, 6 A. R. 345 

Tombeckbee B'k v. 1 S. & P. 187 



7 A. 

10 A. 

8 A. 



10 
1 

7 



390 
752 
346 
796 
647 
375 
628 



R. 
R. 
R. 

1 S. 
A. R. 
A. R. 218 
A. R. 142 

10 A. R. 441 

7 P. 483 
3 S. & P. 67 
9 P. 441 
9 P. 334 
9 P. 446 

2 P. 177 
2 S. 230 

8.A. R. 816 
12 A. R. 290 
15 A. R. 452 

11 A. R. 324 

7 A. R. 444 

8 A. R. 820 

5 P 

14 A. R 
4 A. R 

15 A. R 



1 A, 

12 A. 
10 A, 



64 
511 
353 
324 
R. 573 
R. 621 
R. 961 
M. 256 



Strother, Br. B. at Mobile v. 15 A. R. 51 



Honeycut v. 
White V. 



Stuart, Pruitt v. 
Stubblefield v. Hagerty, 

V. Oden, 

, V. s 

V. . 



Stud, Malone v. 
Stui'devant v. Gaines, 

, Mims V. 

V. Murrell, 



Sturgus, PauUing v. 
St. John, Evans v. 

V. Garrow, 

v. O'Connell, 

— r— — V. Redmond, 

V. Tombeckbee Bank, 



St. Guirons, White v. 
Sugg, Burgess v. 

V. , 



Pool, 



Sullivan, Cain v. 

V. State, 

Summerlin v. Gibson, 



Sumwalt, Thrash v 
Sutherland v. Cunningham, 



2 A. R. 135 

11 A. R. 720 

5 A. R. 112 

1 A. R. 38 
9 A. R.651 

2 A. R. 684 

4 A. R. 40 

M. 360 

5 A. R. 435 
16.A. R. 154 

8 P. 317 

3 S. 95 

9 P. 186 

4 P. 223 
7 P. 466 
9 P. 428 
3 S. 146 

M. 331 

& P. 341 

2 S. 509 

2 S. & P. 196 

M. 31 

5 S. & P. 175 

15 A. R. 406 

5 A. R. 13 

1 S. 438 



2S. 



Elmes V. 
V. Goff, 



Sutherlin v. Norm'an, 
Suttle, Kirk v. 
Sutton, Stebbins v. 
Swain, Demott v. 
Swan, Scales v. 

V. State, 

•, Wright V. 



Swansey v. Breck, 
Swearengen, Herndon v. 
Sweeny, O'Donnell v. 
Swift' V. Fitzhugh, 

V. Hill, 

, Jones V. 

V. Stebbins, 



Swink V. Norwood, 
Switzer v. HoUoway, 
Swoope V. Trotter, 
Sydnor, B. Bank Mont'y v. 7 
Sykes v. Sykes, 



7 A. R. 262 

• 5 P. 508 

14 A. R. 662 

6 A. R. 679 

2 S. 249 

5 S. & P. 293 

9' P. 163 

11 A. R. 594 

6 P. 84 

10 A. R. 533 

1 P. 192 

5 A. R. 467 

9 P. 39 

1 P. 277 

12 A. R. 144 
4 S. & P. 

9 P. 

2 P. 
4 P. 

A. R. 308 
2 S. 364 



447 

287 

88 

27 



T 



^ 



•• 



Tait, Armstrong v. 

V. Frow, 

. , James v. 

V. Parkman, 

Taliaferro v. Bassett, 



8 A. R. 635 

8 A. R. 543 

8 P. 476 

15 A. R. 253 

3 A. R. 670 



Taliaferro, Boyd v. 

: — V. Brown, 

V. Manning, 

, Pinkston v. 

V. Taliaferro, 



13 A. 


R. 424 


11 A. 


R. 702 


3 A. 


R. 670 


9 A. 


R. 547 


6 A. 


R.404 



TABLE OF CASES. 



Ixxxvii 



Tally, Price v. 10 A. R. 
Talman, Mobile R. R.Co.t. 15 A. R. 
Tankersley v. Graham, 
. V. 



, Mordecai v. 

■ V. Richardson-, 

V. Silburn, 

V. State Bank, 

Tann, Fellows v. 
Tanner, Adams v. 

, Hancock v. 

V. White, 

Tarlton, Courtland v. 

, ex parte, 

— — V. Gibson, 

V. Herbert, 

, Moore v. 

Tartt, Travis v. 
Tarver v. Boykin, 

, Brazier Vi • 

, Knotts V. 

V. Nance, 

V. Richardson, 

V. Roffe, 

Tate V. Chandler, 
— : — — V. Gilbert, 

V. , 

V. Innerarity, 

Tatum, Cavanaugh v. 

V. Hunter, 

V. Manning, 

V. Young, 

Taylor v. Acre, , ' . 

V. Bass, * .. 

, Bethea v. 

, Bettis v. 



R. 

, R. 

R. 

R. 



V. Branch, 



8 A. R. 
15 A. R. 

1 A. R. 

2S. 

M. 

6 A. R. 

9 A. R. 

5 A. R. 
4 S. & P. 
15 A. R. 

8 A, 

2 A 

2 A, 
4 A, 

3 A, R. 

8 A. R. 

6 A. R. 

4 A. R. 
•'8 A. R. 

■ 5 A. R. 
2 S. & P. 

7 A. R. 

4 S. & P. 

5 S. & P. 

2 P. 
1 S. & P. 
4 S. & P. 
14 A. R. 

9 A. R. 

IP. 

8 A. R. 

5 A. R. 

3 S. 
6 P. 
8 P. 
&P. 



IS, 



V. B. B. Huntsville, 14 A. R. 



, B. B. Mobile v. 
, Burns v. 
V. Casey, 
■, Copewood V. 
, Ellis V. 
, Gill J. 
■, Havis V. 
, Herndon v. 
, Merriwether V. 
■ V. Morgan, 

- V. Paullin, 
■, Pollard V. 

- v. Pope, ' 

- V. Powers, 

- V. Reese, 

- V. Rhea, 

-, Roberts v". 



V. Rogers, 



10 A. R. 
3 P. 
M. 
7 P. 
1 P. 

3 P. 
i. R. 
i. R. 

R. 
R. 
R. 
R. 
R. 
R. 
R. 
M. 

4 P. 
7 P. 

3 A. R. 
M. 



15 A 

6 A 

11 A 

13 A 

3 A 

3 A, 

4 A 



946 
472 
247 
634 
100 
130 
185 
277 
999 
740 
262 
798 
532 

35 
638 
359 
444 
574 
353 
569 
743 
712 
331 
873 
417 
114 
386 

33 
204 
557 
144 
298 
491 
110 



564 

249 

633 

67 

187 
258 

289 
182 
324 
461 
735 
893 
512 
604 
190 
285 
121 
414 
421 
251 
83 
197 



Taylor v. Rushing, 

, Smith V. 

, Walker v. 

, Wallace v. 

, Williams v. 

, Wykoff V. 

Teague, O'Neil v. 

V. Russell, 

V. Williams, 



Teat V. Lee, 
Teer v, Sanford, 
Temple, Williams v. 
Tenison v. Martin, 
Terrell, Bates v. 

V. B. Bank Mobile, 

, Croft v. 

, Douglass V. 

, Gary v. 

v. Green, 

, Humphres v. 

V. Kirksey, 

Terry, Couch v. 

V. Eastland, 

v. Eslava, 

V. Ferguson, 

V. Lindsay, 



Test, Hunt v. 
Thacker, Gray v. 

T. Myrick, 

Tharp v. State, 
Thaxton v. Edwards, 
Thirman v. Matthews, 
Thomas v. Adams, 

, Armistead v. 

, Bell V. 

Y. Brown, 

, Currie v. 

—^ V. Davis, 

, Degraffenreid v. 

V. Denton, 

— V. Ellis, 

, Frazier v. 

v. Hearn, 

, Hickman v. 

v. Hopper, 

V. Wallace, 

Thomason v. Blackwell, 

V. Boyd, 

, Nabors v. 

, Pearson v. 

, Price v. 

v. Scales, 

V. Smithson, 

Thompson v. Allen, 
V. Armstrong, 



, Averett v. 
V. Ayres, 
, Blackwell v. 



2S. 
9 A. R. 

1 S. & P. 

7 A. R. 

4 P. 

2 S. & P. 

8 A. R. 

2S. 
7 A. R. 

8 P. 
1 A. R. 

6 A. R. 

13 A. R. 

7 A. R. 
12 A. R. 
15 A. R. 
11 A. R. 

9 A. R. 

11 A. R. 
1 A. R. 

14 A. R. 

12 A. R. 

1 S. 
IP. 
8 P. 

3 S. & P. 

8 A. R. 

4 A. R. 

3 S. 

15 A. R. 

1 S. 

1 S. 

2 P. 

9 A. R. 
8 A. R. 

1 S. 
8 P. 

6 A. R. 

14 A. R. 

15 A. R. 
4A. R. 

6 A. R. 

2 P. 

16 A. R. 

5 A. R. 
5 A. R. 

5 S. & P. 

13 A. R. 
1 A. R. 

15 A. R. 

11 A. R. 

12 A. R. 

7 P. 

4 S. & P. 
5 A. R. 

7 A. R. 
15 A. R. 

IS. 
2 S. & P. 



160 
633 

298 
668 
234 
105 
345 
420 
844 
507 
525 
656 
21 
129 
502 
652 
583 
206 
207 
650 
209 
225 
156 
273 
500 
317 
713 
136 
184 
749 
524 
384 
188 
586 
527 
412 
293 
113 
681 
583 
108 
169 
262 
666 
442 
238 
181 
419 
590 
700 
875 
309 
144 
184 
383 
256 
678 
171 
348 



Ixxxvi 



nil 



TABLE, X)'F cases. 



Thompson, Bobo v. 

, Bonclurant v. 



-, B.B. at Mobile V. 

-, Burnett v. 

-, Costillo V. 

-, Commissioners y. 

-, Donnelly. 

- V. Evans, 

- V. Gray, 
-, Hagan v. 

- y. Hair, 
-v. Hall, 

-, Hanrick v. 
-, Henry v. 
-, Hodge v. 
-, Hopkins v. 
-, Huffman v. 
-, Humphrey s,v. 

- V. Ives, , 

- V. Jones, " , ■ 

-v.^- , ^■- 

-, Kavanaugh v.; ■ 
-, Kinnai'd y. ' ' 

- V. Merriman, _• , 

- V. Miller, 

-, V. •* / 



y 



, McBride v. 

, Phillips y. 

, ^ v. 

V. Pierce, 

— -, Prigmoris y 

, Ready v, ■ 

v. Saffold, *| 

V. Searcy,-' ' •' 

— , Spence y. 

■ V. Spinks, 

V. Stickney, 

, Venable v. 

V. Wallace, 

-. , Wells v. 

Thorington v. Carson, 

, Hogan v. 

— ; , Lucas V. 

— , — — y. 

Thorntoiiy. Kerr, 

y. Winter, 

Thorpe, Cald-well v. : 

, Henry vJ 

, Kemp v. ■ . 

Thouron, Durand v. * , 
Thrash y. Johnson, * 

v. Sumwalt, 

Thrower, Turner y. 
Ticknor y. B. B. Montg'y, 

y. Leavens, 

v. Wiswall, 



Tidmore, Given s v. 



3 S. & P. 

15 A. R. 

15 A. R. 

9 A. R. 

1 A. r; 

9 A. R. 
15 A. R. 
13 A. R. 
12 A. R. 

2 S. & P. 
. 2P. 

7 A.R. 
th A. R. 

9 A. R. 

■. m. 

,9 A. R. 

, 2JP. 

■ • 3 P. 

6' A. R. 

11 A. R. 

l-'S. 
.2 S. & P. 
IG A. R. 

12 A. R. 

15 A. r: 

■ 2S. 
• 3 P. 

8 A. R.. 

3 S. & P. 

9 P. 
3S; 
M- 
&P. 
2S. 
v. 6' p. 

11 A. R. 

12 A. R. 

6 A.R, 
11 A. R. 

3 A. R. 

13 A. R. 

IP. 
8 P, 

5 A. R. 

7 A.R. 

6 A. R. 

9 A. R. 

8 A.R. 

14 A. R. 
3 A.R. 

. 1 P, 
6 P. 

5 A. R. 

5 P. 
3 A. R. 
2 A.R. 

9 A.R. 

6 A.R. 



■4^ 



385 
202 
346 
295 
469 
937 
134 
440 
588 
GO 
48 
313 
204 
409 
209 
.131 
433 
196 
649 
2.39 
556 
46 
817 
487 
■166 
470 
196 
650 
3G9 
664 
427 
420 
52 
494' 
393 
746 
155 
579 
147 
132 
793 
257 
428 
504 
605 
823 
613 
253 
103 
291- 
238 
458" 
13 
43 
135 
149 
305 
178 
745 



McRae v. 



Tillotson, Cherpin y., 

, Birch y. 

■^-^. — — T, Dunnv. ■ 
Kennedy, 



Tilton y. Russell, 
Tims, Walton y. 
Green v. 



Tiffany, Garner v. ■ M. 

Tiller, Wellborn v. 10 A. R. 

Tillinghastv. Johnson, 5 A. R. 

Tillman, B. B.-at Mobile v. 10 A. R. 

^v. ■^, 12 A.R. 

6 A.R. 

8 A.R. 

. 6 A. R. 

16 A. R. 

..\ ;9-P. 

5 A. R. 

11 A. R. 

,7 A.R. 

^6 A. R. 

M. 

2S. &P. 

2 P. 

4 S. & P. 

. 1 S. & P. 

7P. 

.5 S. & P. 

AA.'R. 

'9 A.R, 

. 5 A. R. 

= 14 A.R. 

,H 5 A.R. 

: • . 9 P. 

^*%A.R. 

^ ■ il S. 

15 A.R. 

1 A. R. 

'■;* 8 p. 

#■7 A.R. 
2 P. 



Tindall v. Bright, 

— T V. Childress, 

- — v. Collins, 

-^ — ■ — , 'Cummins y. 
— r — — , Hudson y, 
Tippin y. Petty, 

— — , Sinipson v. 

Tipton V.Nance, > -^ 

— ——, Pu^-dom v.* , - 
.. ■- , SelinaR.-R. Co, v 



• * 



Tittle, Gillv, 
Toddy. Hardie, . 
. \,'l '■ y.' Hardy," 
• — , Hopper v. 
— ^— — V. Stafford, 
- — — v. Todd, 

— , Ware v. ^ 

Toland,Magee v. • 
Toles, White y. " ' 
Tolls, Hutchison v. 
Toiiibeckbee Bank, Draughan v. 1 S. 

-, y. .• • , 3 S. 

• 4 P. 

M. 

•^•- M. 

-' 3 S. 

IS. 

5 P. 

M. 

■ 2S. 

1 S. 

1 S. & P. 

, 3 S. 

8 A. R. 

3 S. & P. 

4 S. & P. 
4 A.R. 
6 A. R. 

. 1 S. & P. 

; ' 3 s. 

M. 

i 16 A. R. 

6 S. & P. 

3 S. & P. 

:.'.:. as. 



— ^ — : — , Duncan v.. 
—^ — '-^— V. Freemaif^ 
-^ — •■ — , Gaines v.*, • 
v. Godbold;^ 

■ — v. Malone, 

■ — , McGrewv.. 

y. -State, ^ " 

, y. 

, y. 

v. Strong, 

— : , St. Johav. 

Tomlinson, Jones v. 
Tompkins v. Smith, 
Touey v. Moore, 
Topp, Croft y. 
Torbert, Adam§ v. 
——. — V. Wilson, 



4f? 



Torver, Brown v. 
Touchstone, Copelan'div. 
Toulmin v. Austin, 

•-^— V. Bennett, 

■ y. Buchanan, 



167 
305 
514 
149 
214 
486 
677 
638 
385 
272 
407. 
497 
470 
541 
103 
250 

17 
357 
237 
441 
208 
194 
914 
787 
528 
698 
346 
121 
199 
743 
199 

36 
569. 

44- 

66 

54, 
181 
285 

50 
240,; 
269' 
547 
425 

30 
347 
187 
146 
565 

54 
347 
238 
865 
200 
296 
370 
333 
410 
220 

67 



TABLE OF CASES. 



Ixxxlx 



Toulmin, DIckerson v. 

, Gayle v. 

V. Hamilton, 

j Hunt V. 

-, Juzan V. 

— - V. Lesesne, 

, Mageev. 

, Mansony v. 

, McGrew v. 

, Stocking V,. 

— ^ -, Stoddery. 

— , Whidden v. 

Towns V. Alford, 

i — ■■ — V. Bardwell; 

'■ — , Lawson v. 

— T. Riddle, 

Townserid, Crim v. 

V. Everett; 

- — '■ — — , Hemphill v. 

, Martin v. 

•'Townsley, Waintrriglit v. 

.« — , Kennedy V. 

'. Townsonv. Moore, 

Trammel v. Gordon, 

— v.. Simmons, 

* Trann v. Gorman, 

Traver'se, McJimsey v. 

Travis v. Allen, 

< , Groom V. 

i-r^- y.-Tartt, 

Trawick v. Davis, 

'■ — , Roberts v. 

Traylor, Blount v. 

V. Marshall, - 

— , Weaver v. 

Treadwell v. Burden, 
Rainey, 



2 S. & P. 
T) A. R. 
7 A. R. 

1 S. & P. 
9 A. R. 
2 A. R. 

5 A. R. 

6 A. R. 

2 S. & P. 
.3S..&P. 

10 A. R. 

6 A. R. 
2 A. R. 

1 S. & P. 

.2 A. R. 

2 A. R. 
. 9 A. R. 

4 A. R. 

7 A. R. 
2 S. 
1 S. 

16 A. R. 
9 P. 

11 A. R. 

8 A. R. 
9 P. 
1 S. 

I s. & p. 

10 A. R. 
8 A. R. 

4 A. R. 
13 A. R. 
• 4 A. R. 

II A. R. 

5 A. R. 

8 A. R. 

9 A. R. 
Treas'r of Mobile V. Huggins, 8 A. R. 



Trewhit, Fowler v. 
Trippe v. John, 
Trotter v. Blocker, 

■' V , ' .. ■ ; y. Crockett, 



— V. McAfee, 

, Swoope V. 

Troutman, Melton v. 
Truss, State v. 
Tvibb V. Madding, 



Ulmer v. Austill, 

Ulrickv. Ragan, 

Underwood, State v. 
^ United States, Everett v. 
' V. Fay, 

V. Haden, 



10 A. R. 

15 A. R, 

.0 P. 

2 P. 

1 S.&P. 

. • 1 s. 

4 p. 

15 A. R. 

9 P. 

M. 



283 
362 
178 
662 
359 
141 
474 
428 

35 
•824 
104 
378 

36 
373 
694 
403 
607 
853 
329 

29 
239 
136 
656 
271 
456 
244 
192 
237 
574 
328 

M. 
667 
458 
564 
660 
590 
440 
622 
117 
269 
401 
446 

59 

27. 
535 
126 
129 



Tubb, Sledge v. 
Tuck, Conner V. 

■ V. State, 

Tucker v. 



Tuggle V. Barclay, 
Spence 



Tulane, Harrison y. 
Tullis V. Kidd, 
Tunnell, Boswellv. 
Tunstall v. Donald, 
Tai'cott V. Hall, 
Turk, Hart v. ' 
Smith, 



Turner v. Brown, 



, Dawson y. 
V. Eldridge, 



V. Esselman, 

, Gayle v. • 

, Gray v. 

— : , Headon v. 

— ■- •,,Hardie v. 

— ', Henry v. 

— , Knight V. 

V. Lazarus, 

— V. Lawrence, 

-r— 5- — ', Matthews y. 
-^^--1— i JMewell v. 
— h — r v^ Thrower, 

'- — '■ ;: "VVright V. 

Turhly v. Stinson, 
Turnipseedv. Crook, 
— — — vl Cunninghar 
— — — V. Goodwin, 
— — - — V. McMath, . 

— V. State, 

— , Walker V. 

Tuscumbia R. R. Co. 
dridge, 

— , Darwin v. 

— , Davis V. 

Rhodes, 



'1. 



16 A. 

6 A. 

10 A. 

3 A. 

12 A. 



Tuskaloosa Bridge Co, 
Tuthill, Saltmarsh v. 
Twelves v. Lodano, 
Tyson, Powe v. 



11 A. R. 383 
11 A. R. 794 
8 A. R. 664 
R. 67D 
R. 407 
R. 538 
R. 534 
R. 648 

10 A. R. 958 
15 A. R. 841 

8 A. R. 522 
15 A. R. 675 

2 P. 155 

9 A. R. 866 
15 A. R. 832 

11 A. R. 752 
5 S. & P. 195 

6 A. R. 821 
11 A. R. 1049 

15 A. R. 690 
M. 204 

7 A. R. 30 
6 A. R. 66 
9 A. R. 110 

2 P. 23 
11 A. r! 636 
. 6 A. R. 875 
11 A. R. 427 
2 S. & P. 239 

9 P. 420 

5 P. 43 

IS. 
lA. R, 

8 A, R. 

16 A. R. 
9 A. R. 

A. R. 
A. R. 664 
8 A. R. 67a 
,'. Al- 

" ^ 2 S. & P. 199 

4 P. 16ft 

4 S. & P. 421 

8 'A. R. 20a 

Dyer v. 2 P. 29a 

13 A. R. 390i 

15 A. R. 732 

15 A. R. 221 



13 
6 



29 
45Q 
897 
501 
372 

44 



u 



9 P. 157 , U. S. Bank, Mansony v. 4 
11 A. R. 529 I Univ'y of Alabama v. Keller, 1 



2 A. R. 744 1 
6 P. 166 
9 P. 465 
5 P. 533 
4 P. 393 



Walden, 
Winston, 
v. 



Upchurch v. Norsworthy, 



15 

5 S 

1 

12 
15 



U. S. Bank, Hitchcock v. 7 A. R. 386 I Upson v. Austin, 



A. R. 735 
A. R. 406 
A. R. 655 
P. 17 
A. R. 124 
A. R. 532 
A. R. 705 
A. R. 124 



xe 



TABLE OF CASES. 



V 



Van Arsdiile v. Howard, 
Van Cleave v. HaAvorth, 
Vandegraafi" v. Medlock, 
Vanderveer v. Alston, 
Vandvert, Barron v. 
Van Dyke v. Battle, 
Vance v. Wells, 



Vanlier, Kirkman v. 
Vanner, Richards v. 
Van Wick, Gross y. 
Varnum, Cottrell v. 
Vastbinder, Blackwell v. 



5 A. 

5 A. 

3 
16 A. 
13 A. 

1 

6 A. 
8 A. 

7 A. 
4S. & 

5 A. 

6 A. 



R. 596 
R. 188 
P. 389 
R. 494 
R. 232 
S. 218 
R. 737 
R. 399 
R. 217 
P. 64 
M. 7 
R. 229 
.R. 218 



Vastbinder v. Metcalf, 

V. Spinks, 

Vaughan v. Groode, 

, Key V. 

V. Seed, 

Wood, 



Vaught V. Wellborn, 
Venable. v. Thompson, 
Vickars v. Mooney, 
Vinzaut, McPv.ory v. 
Vivian, Caller v. 
, Lister v. 



Von Pheel, Conallv v. 



w 



Waddel v. (Jlassel, 
Waddill, Jackson v. 
Waddle v. Dumas, 

V. Ish, 

Wade, Br. B. at Mont'y v 

, Davis V. 

V. Judge, 

v. Kelly, 

V. Killough, 

V. , 

V. Robinson, 

Wafer v. Pope, 
Wafford, Petty v. 
Wagner v. Chenault, 
Wainwright, Beal v. 
Walden, University v. 
Waldron, Hunter v. 
Walke, Kain v. , 
V. McGehee, 

V 



11 A. R. 

1 S. 
13 A. R. 

12 A. R. 

13 A. R. 

4 A. R. 

5 A. R. 
2S. 

3 S. & P. 

5 S. & P. 

1 S. 

6 A. R. 

11 A. R. 

7 A. R. 

6 A. R. 
15 A. R. 

7 A. R. 

12 A. R. 
11 A. R. 
15 A. R. 

Walker v. Bank of Mobile, 6 A. R. 
, Bank of Huntsville v. M. 
V. Board Engineers, 14 A. R 



Borland v. 
— , Cargill V. 
— , Chenault v. 



-, Clealand v. 

- v. Cuthbert, 
-, Deloney v. 

-, Dickerson v. 
-, Doremus v. 

- V. Driver, 
-, Easley v. 
-, Foster y. 

-, Greshara v. 



7 A. R 

I S. &P 

14 A. R 

15 A. R 

II A. R. 
10 A. R. 

9P, 

1 A. R, 

8 A. R. 
7 A. R 

10 A. R 

2 A. R 
10 A. R 



568 

579 

412 

308 

427 

208 

130 

443 

431 

4a0 

423 

154 

143 

677 

156 

655 

753 

184 

273 

183 

452 

391 

.228 

.269 

. 223 

. 151 

. 605 

1058 

.213 

.497 

. 48 

. 194 

. 679 

.671 

177 

370 



Walker, Grimshaw y. 

, Haden v. . 

— V. Hale, 

v. Hallett, 

V. Hampton, 

V. Massey, 

V. 



y. 



3 A. R'. 100 

16 A. R. 385 

M. 417 

15 A. R. 497 

7 A. R. 740 

5 A. R. 304 

16 A. R. 377 
11 A. R. 147* 

6 A. R. 97 

M. 401 

8 A. R. 903 

8 P. 375 

9 P. 452 



.* • 



V. Miller, 

O'Connell y. 

P. and M. Bank v. 



12 A. R. 101 

5 A. R. 86 
16 A. R. 26 

1 A. R. 379 

8 A. R. 412 
10 A. R. 30' 

8 A. R. 167 
10 A. R. 288 
11 A. R. 1067 
1 P. 263} 

7 A. R. 926 



Petty y. 

Samples v. 

Shrader v. 

Spence y. 

• v. State, 

y. State Bank, 

y. Taylor, 

v. Turnipseed, 

y. Watrous, 

, Welch y. 

, Wilson y. 

v. Wykoff, . 

Walkley, Spear v. 
Wall v. Williams, 
y. Williamson, 



10 A. 
9 A. 
8 A. 

7 A. 

6 A. 
4S 
IS. 



R. 379 
R. 726 
R. 244 
R. 568 
R. 350 
& P. 215 
& P. 298 



8 A. R. 679- 

8 A. R. 493 

4 P. 120 

3 S. 211 

14 A. R. 560 

R. 328 

R. 826 

R. 4g 

R. 131 



10 A 

11 A 

8 A. 
10 A. 



Waller v. Gibbs, 

Wallace y. Br. B. at Mobile, 1 A. R. 565 

, Caldwell v. 4 S. & P. 282 

, Caraway v. 

, Coopwood y. 

V. Hill, 

, McMillian v. 

, Pattison v. 

Peck, 



Reeves v. 



2 A. R. 542 

12 A. R. 790 

M. 70 

3 S. 185 

IS. 48 

12 A. R. 768 

1 P. 116 



TABLE OF CASES. 



xci 



Wallace, Ro-wan v. 

, Shaw V. 

; — V. Taylor, 

• , TJhomas v. 

• , Thompson v. 

"Wallis V. Murphy, 

■ V. Long, 

V. Rhea, 

V. , 

, Witherspoon v. 

Walters v. Commons, 



, McPherson v. 

V. Rogers, 

Walton, King v. 

, McCullough V. 

?- , Mon'y R. R. Co. v, 

V. Tims, 

Wammack v. Holloway, 

Ward V. Alexander, 

, Adams v, 

V. Bevill, 

V. Gifford, 

'— V. Herndon, 

. , Hill V. 

• V. LeAA'is, 

V. Ross, 

, Shackleford v. 

, Stout V. 

: — , Whitehurst v. 

Wardlow, Wren v. 

Ware v. Bradford, 

- — - — V. Dudley, 

, Duncan v. 

, Earbee v. 

, Freeny v. 

, Gilliland v. 

, Haden v. 

, Lawrence v. 

, Patterson v. 

, Paysant v. 

, Rains v. 

* , State V. 

V. Todd, 

Waring, Dargan v. 

V. Morse, * 

AVarner, Aldridge v. 

Warnock v. Smith, 

Warren, Perrine v. 

V. Rist, i.,<- 

' Washington, Baker v. 

V. Cole, 

, Holloway v. 

, Powell V. 

Waters v. Carleton, 

, Colman v. 

V. Creagh, 



7 P. 


171 


2 S. & P. 


193 


7 A. R. 


668 


5 A. R. 


268 


3 A. R. 


132 


2S. 


15 


16 A. R. 


738 


10 A. R. 


451 


12 A. R. 


646 


2 A. R. 


667 


2 P. 


38 


IP. 


323 


IP. 


377 


16 A. R. 


714 


9 A. R. 


834 


3 P. 


289 


U A. R. 


492 


14 A. R. 


207 


7 A. R. 


470 


2 A.R. 


31 


1 S. 


382 


IS. 


42 


10 A. R. 


197 


M. 


5 


5 P. 


382 


13 A. R. 


310 


1 S. 


26 


1 S. 


136 


3 A. R. 


37 


10 A. R. 


628 


12 A. R. 


264 


M. 


363 


2 A. R. 


676 


16 A. R. 


742 


5 S. &.P. 


119 


9 P. 


291 


9 A.R. 


370 


4 A. R. 


414 


15 A. R. 


149 


1 S. 


33 


10 A. R. 


444 


1 A. R. 


160 


10 A. R. 


623 


10 A. R. 


814 


1 A. R. 


199 


11 A. R. 


988 


7 A. R. 


343 


2 P. 


92 


14 A. R. 


156 


3 S. 


151 


16 A. R. 


686 


■5 S. & P. 


142 


6 A.R. 


212 


3 A.R. 


668 


15 A. R. 


803 


4P 


205 


3 P. 


381 


M. 


128 


4 S. & P. 


81 



Waters v. Creagh, 

V. Jones, 

, Rogers v. 

Watkins v. Bassett, 

, Bliss V. 

V. Canterberry, 

, Dearing v. 

V. Durand, 

V. Gayle, 

, Jones V. 

V. Manning, 

, Metcalf V. 

, Ptoyster v. 

V. Watkins, 

Watrous, Evans v. 

, Walker v. 

Watson V. Anderson, 



V. Bothwell, 

V. Brazeal, 

V. Byers, 

— : V. Dale, 

V. May, 

V. , 

V. McClanahan, 

, Sanders v. 

V. Simpson, 

, Strange v. 

Watt, Camp v. 

, Snoddy v. 

Watts, Bohannon v. 

, Mason v. 

Y. Sheppard, 

Wayland v. Mosely, 
Weakley v. Brahan, 

, Koger V. 

Wear, Howard v. 
Weatherford v. James, 

, Roberts v. 

V. Weatherford, 

Weathers, Hurst v. 
Weaver v. Childress, 

V. Crenshaw, 

, Gwynn v. 

, Harrison v. 

, Morrow v. 

V. Puryear, 

, Roundtree v. 

, Stewart v. 

V. Traylor, 

V. Yeatmans, 

Webb V. Bumpass, 

, ~ V. 

, y. 

, V. 

, Garrard v. 



4 S, & P. 410 

3 P. 442 

2 A. R. 644 

3 A. R. 707 
18 A. R. 229 

4 P. 415 
16 A. R. 20 

IP. 

4 A. R. 

1 S. 
3 A. R. 

IP. 
3 P. 

2 S. 485 
2 P. 205 

A. R. 493 



251 

153 

81 

707 

57 
436 



R. 43 
R. 202 
R. 650 
R. 451 
R. 393 
P. 247 
133 
177 
57 
198 



616 
609 
574 
703 
425 
430 



Webster v. Smith, 

V. Wyser, 

V. Yancy, 



8 
11 A. 
13 A. 
11 A. 

7 A. 
6 A. 

1 

6 A. R. 

8 A.R. 

13 A. R. 

14 A. R. 
5 A. R. 233 

11 A. R. 324 
14 A. R. 

9 A. R. 

14 A. R. 

7 A.R. 
2 A. R. 

5 A.R. 

2 S. 500 

2 P. 516 
M. 84 

2 A. R. 170 

10 A. R. 72 

8 P. 171 

15 A. R. 417 

3 S. 361 

6 A. R. 873 

1 S. 219 

2 P. 542 

8 A. R. 288 

11 A.R. 941 
8 A. R. 314 

12 A. R. 538 
5 A. R. 564 

15 A. R. 

9 P. 
1 S. 

4 P. 

3 A.R. 

4 P. 
10 A. R. 



539 

201 
.19 
65 

109 
f3 

429 



1 S. 184 
M. 183 



XCll 



TABLE OF CASES. 



Weed V. Brown, 
Weedon, Kavanaugh v. 
Weeks v. McBeth, 
Weir, Cothran v. 

■ — , Gayle" v. 

V. HoSs, 

— , Sartin v. 

Weisman, Fletcher v. 
Weissinger, Askew v. 

— , Cawthorne v. 

• , ex parte, 

, Falls V. 

V. Johnson, 

V. State, 

Welch V. Fourier, 
V. Jones, 

— , State V. 

V. Walker, 

■ V. Welch, 



13 A. 
1 A. 

14 A. 
3 A. 



Wellborn, Buford v. 

, Granberry v. 

V. Sheppard, 

V. Sheppard, 

V. Tiller, 

, Vaught V, 

Wells, Ross V. 

V. Thompson, 

, Vance v. 

, V. 

Wesson v. Carroll, 

> , Gillespie v. 

■■ — , Hester v. 

West V. Ball, 

, Clark y. 

V. Cunningham, 

, Leach v. 

. V.Penny,., 

Westbrook, Magoffin v. 
Western Bank, GivenS \' 

' , Lowry V. 

Westmoreland V. Davis, 
^^— V. Hale, 
Wetumpka R. R. Co. v. 
ham, 

V. Cole, 

^ V.Hill, 

Wharton v. Franks," •" ' 
Whatley v. Johnson, 
Wheat V. Groom, 

— — , Haynes v.. 

V. Lowe, 

V. State, 

Wheeler, Brown v^ 

. V. Bullard, 

-- — — — V. Kennedy, 

, McVoy V. 

Wheelock v. Fitch, 
— — — V. Wright, 



3 P. 
6 A. R. 

3 S. & P. 
1 A. R. 
6 A. R, 

6 A. R. 

7 A. R, 
11 A. R. 

13 A. R. 
11 A. R, 

6 A. R. 

11 A. R, 

15 A. R. 

7 P. 

4 P. 

14 A. R. 
6 A. R, 

4 A. R, 

5 A. R, 

5 A:R. 
10 A. R, 

16 A. R, 

IS, 
13 A.R, 

6 A. R, 

8 A.R, 

M, 
7 P. 
6 A. 

12 A. 
5 A. 

9 
16 A. 
16 A. 



R. 

R. 

R. 

P. 

R. 

R. 

M. 

. 2 A. R. 

7 A. R. 

1 A. R. 

11 A. R. 

Bing- 

5 A. R. 

6 A. R. 
: 7 A. R. 

'•■9 P. 
•■ 1 S. 

7 A. R. 
9 A.R. 
7 A.R. 

M. 
3 A. R. 

6 P. 
1 A. R. 

6 P. 

3 P. 

&P. 



4S, 



449 
231 
474 

24 
193 
881 
421 
602 

;907 

714 
710 
801 

93 
540 
516 
660 
306 
463 
120 

76 
818 
118 
674 
■674 
305 
377 
139 
793 
737 
399 
251 
454 
415 
34(3 
117 
104 
250 
186 

58 
397 
120 
299 
122 

657 
655 
772 
232 
498 
349 
239 
311 
199 
287 
352 
292 
201 
387 
163 



Whetstone v. B. B. Mont'y, 9 A. R. 
Whidden v. Toulmin, 
Whitaker, Cozzins v. 
— V. Be GraiFenreid 



— y. Patton.^ 

— V. Sanfomi, 

, Spence v. 

Whi'te, Adams v. 

Allen y. 

— — V. ' 

— V. 



6 A.R 

3 S. & P. 

&• A. R. 

IP. 

13 A. li. 

3 P. 

• -2 A. R. 

M. 

M. 

JL6 a: R. 

'♦8 A..R. 
2 P. 

5 P. 

1 A. R. 
Bezzell.v. 13 A. R. 

y. B.Bank Decatur, 1 A. R; 
v. Casey, 4 S. &' P. 

Davis V. ' 3 A. R. 

Dunn V. : 1 A. R. 

V. Florence Bridge, 4 A. R. 



Bailey v. 
Barr v. 
v. Beard, 



*,■ 



Foster v. 

G overnor v. 

Gray v. 
V. Hadnot, *• 

Hill V. 

Hodges V. 
V. Joy, 

Kornegay v. 
Lee V. 

Marshall V. 
V. Martin, 

V. 



McConnell v. 

Moseley v.. 
V. I^ance, 

Owen V. 

Price V. 

Reese v. 
y. Ross, 

Seamans "«.* 
V. Shannon, 

Sidney v. 

Standifer v. 
V. St. Guirons, 
v. Stover, 
V. Str other, 

Tanner'V. 
y. Toles,/ 

Wiley "4 

— V. - 



9 P. 
■ 4S. &P. 
. "6 A.R. 

• • IP. 
' 1 A. R. 

'■16 A.R. 

4 A. R. 

10 A. R. 

4 S. & P. 

8 P. 

1 P. 

1 S. 

' 2 s: 

■M. 

IP. 

16 A. R. 

"5 P. 

9 A. R. 

2. A. R. 

i-^ S. &P. 

' V'8A. R. 

3 A. R. 

12 A. R. 

9 A. R. 

M. 

10 A. R. 

11 A. R. 

15 A. R. 
• 7 A.R. 

/;■• '2 8. 
'j 3 S. & P. 

• 15A..R. 

16 A. R. 
7 A. R. 



V. Wood, ■ . 

-^ V. Yai-brough, 

Whitehead', Banks v. 

, Commercial Bank -v. 4 A. R. 

Whitehurst v. Boyd, 8 A. R. 

y. Ward, 12 A. R. 



Whiteside V. Br. B. Decatur, 10 A. R. 



875 
104 
322 
303 
9 
522 
297 

37 
289 
365 
181 
330 
342 

94 
436 
422 
435 
212 
131 
645 
464 
221 
441 
490 
419 
576 
335 
571 
255 
178 
551 
215 
473 
162 
112 
410 
345 
435 
563 
306 
123 
656 
286 
728 
527 
331 
441 
720 
798 
569 
331 
355 
358 
109 

83 
637 
875 
264 
249 



TABLE OF CASES. 



xcm 



Whiting Vw King, 
Whitlock V. Heard, 



V. Stewart, 



Whitlow, State Bank v 
Whitman v. Farmers' Bank, 



-, McDaniel v. 16 

Whitsett, Paschall v. 11 

V. Womack, 8 

Whitted V. Governor, 

' , State V. 3 

Whittlesey, Crawford v. 8 

Whitworth, Hunter v. 9 

, State V. 

Wickham, Noland v. 9 

Wickliffe, Edwards v. 7 
Wicks V. Br. B. at Mobile, 12 



-, Sanford v. 
Wideman, Hellen v. 
Wier V. Buford, 

V. Davis, 

, Gilmer v. 

Wiggins V. Ferryman, 

: V. Pryor, 

— — , Smith V. 
Wilborne, Rives v. 
Wilder, Bazemore v. 
Wiley, Governor v. 

V. Parmer, 

, Simpson v. 

V. White, 



M. 
A. R. 
A. B. 
A. R. 
A. R. 
A. R. 

8 P. 
A. R. 
A. R. 
A. R. 

6 P. 
A. R. 
A. R. 
A. R. 

8 P. 
A. R. 
A. R. 
A. R. 
A. R. 
A. R. 
A. R. 
A. R. 



8 A. R. 

4 S. & P. 

3P. 

as. 

A. R. 
A. R. 
A.R. 
A. R. 

4 P. 

&P. 



10 
.14 

14 



Wilkerson v. Branhan, 

v. Goldthwaite, 

Wilkins, Br. B. Mont'y 

, Dunklin v. 

V. Judge, 

, Nolly V. 

, Sheppard v. 

V- Wilkins, 

Wilkinson v. Allen, 

V. Harwell, 

, Jones V. 

■ , Mosely v. 

, Price V. 

Wilks V. Greer, 
Willard v. Womack, 
Williams, Babcock v. 

, Bank. of Mobile 

v. Berry, 

, Brashear v. 

V. Bryant, 

; — V. Cannon, 

V. Charles, 

, Cope V. 

'■ — , Giles V. 

V. Haney, 

V. Harper, 

1— M 



3 S. 

5 

1 S, 

V. 7 

5 

14 

11 

1 

11 
13 

14 

10 

14 

4 

9 

T. 13 

3 S, 

10 

4 

9 

7 

4 

3. 

3 

. 1 



122 

776 
336 
790 
601 
135 
258 
343 
472 
466 
335 
102 
806 
965 
434 
169 
715 
594 
369 
846 
134 
442 

72 

94 
430 
221 

45 
773 
172 
627 
215 
355 
331 
608 
159 
589 
199 
135 
872 

62 
245 
128 
660 

44 
812 
172 
437 
539 
150 
544 
& P. 284 
630 

44 
348 
202 
302 
316 
371 
502 



2S. 
A.R. 
. &P. 
A.R. 
A.R. 
A. R. 
A.R. 
A.R. 

4 P. 
A.R. 
A.R. 

3 S. 
A.R. 
A.R. 
A.R. 
A. R. 
A. R. 
A. R. 

bP 
A.R. 
A.R. 
A.R. 



Williams v. Hinkle, 

V. Hinton, 

, Johnson v. 



— V. Jones, 
— - V. Kinnard, 
— , Lattimore v. 
— ,. Leach v. 

— V. Lewis, 

— V. McBroom, 
— , McCord V. 
— , Meacham v. 
— , Mills V. 

— V. Murphy, 
— , Murray v. 

— V. Perkins, 

— V. Powell, 
— , V. 

— , Richardson v. 



V. Shackelford, 

V. Sims, 
, Sommerville v. 

V. Spears, 
, Stallings v. 
, State V. 

J ^• 

, V. 



V. 



— V. Tayloi-, 

• — V. Temple, 

, league v. 

, Wall V. 

^, Wynn v. 

V. Young, 

Williamson, Beall v. 
V. Br. B. at Mobile 



15 A. R. 

1 A. R. 
8 A. R. 

2 A.R. 

M. 
8 A. R. 

8 A.R. 

2S. 
IS. 

2 A.R. 

9 A.R. 
2 S. & P. 

IP. 

8 P. 
IP. 

9 P. 
14 A. R. 

2 P. 
5 P. 
5 P. 

16 A. R. 

8 P. 

IS. 

11 A. R. 

6 A. R. 

3 S. 
5 P. 

A. R. 
A.R. 

4 P. 
A.R. 
A.R. 

11 A. R. 
M. 

3 A. R. 
14 A. R. 

7 A.R. 



1 
15 

6 

7 



— Y. Br. B. at Mont'y, 3 A. R. 



V. Brooks, 
, Cox Y- 

V. Culpepper, 
, Gaffney v. 
, Gee v. 

V. Hill, 

V. Hov/ell, 



• V. State, 

, Steamer Robert 

Morris v. 

, Wall V. 

Willingham v. State, 



3 A. 

11 A. 
16 A. 

12 A. 

1 
6 

4 A. 
14 A. 
16 A. 



713 

297 
529 
314 
196 
428- 
759 

41 
192 

71 
842 
390 

40 

47 
471 
493 
476 
239 
234 
515 
318 
579 
484 
138 
509 
454 
130 
342 
259 
234 
656 
844 
826 
136 
145 

55 
906 
504 

32 
343 
211 
628 
313 
184 
693 
419 
431 



6 A. R. 50 
8 A.R. 48 
14 A. R. 539 
10 A. R. 933 
5 P. 154 
P. and M. Bank v. 5 A. R. 770 
, Rasco V. 5 A. R. 38 

V. Willis, 9 A. R. 721 



Willis V. Dudley, 
, Hunley v, 



Wilson V. Auld, 



5 A. R. 
9 A.R. 
9 A. R. 
16 A. R. 
7 A. R. 



330 
652 
302 



XCIV 



TA'BLE (3F tJASES. 



Wilson ^. Auld, 

— V. Bank of Orleans, 

, Bullock V. 



Y. Calvert, 

, Cofl'ey V. 

V. Collins, 

, Cotton V. 

,' V. 

, Eddins v. 

,HalIv. 

, V. Hines, 

'■ V. Jackson, 

V. — , 

V. Jones, 

V. Jordan, 

, Newbold V. 

V. Oliver, 

V. Outlaw, 

V. -^ , ■ ■ 

, Pope V. 

, Rogers t. 

V. Sergeant, 

V. State, 

V. Torbcrt, 

, V. 

V. Walker, 

Windham v. Childress, 

, Clarke v. 

V. , 



- V. Coats, 
-, Bearing v. 
-, Perkins v. 
-, Robinson v. 



Winslett v. McLemore, 
Winston, Bliss v. 

V. Ewirig, 

, Guy V. 

: — V. Jones, 

'■ — , Locke V. 

V. Majors, 

V. Metcalfe, 

V. , ■ 

Y. Miller, 

V. Moffet, 

V. Moseley, 

V. Rives, 

V. University, 

, Y. 



Winder, Perkins v. 

, Thornton v. 

Win'throp, Smith v. 

— '■ , V. 

Wisdom, State v. 
Wise, Yarborougli v. 

-; , Hodges v. 

Wisvfall v. Glidden, 
v. Muuriic, 



9 A. 



1 A. 



127 

118 



8 A. R. 842 

9 A. R. 847 

2 P. 436 

3 P. 382 

5 P. 338 
8 A. R. 75? 
2 A. R. 701 

R. 
M. 

M. 203 

R. 237 

14 A. R. 295 

M. 255 

M. 73 

• M. 399 

8 A. R. 536 

3 S. & P. 92 

M. 12 

.1 S. 46 

M. 196 

M. 367 

■ 7 A. R. 690 

. M. 407 

12 A. R. 778 

' 1 P. 118 

3 S. 296 

I S. & P. 200 

3 S. 211 

7 A.M. 357 
12 A. R. 798 
16 A. R. 659 

8 A. R. 285 

II A. R. 204 

4 A. R. 634 

9 P. 397 
6 A. R. 416 
1 A. R, 
1 A. R, 
1 S 
6 A. R. 550 
10 A. R. 849 
6 A. R. 659 

6 A. R, 

7 A. R, 

1 S, 
9 P. 518 

2 S. 137 

6 P. 269 
1 A. R. 124 

5 S. & P. 17 
7 A. R. 855 

9 A. R. 613 
■ M. 378 

M. 425 
8 P. 511 

5 A. U. 292 
16 A; R. 509 

4 A. R. S57 
■4A.R. 9 



344 
129. 
14ft 



756 

837 
508 



4-S. 



Wisvrall, Quinn v. 

Y. Ross, 

— v. Tickuor, 



Withers, Irvine y. 
— ^ — '■ — V. Dickey, ■ 
— '—■ — V. Knox, 
Witherspoon v. Barber, 

^,£l*'v. 

Wallis, 



Wofford, Child v. 

Y. Robinson, 



Wolfe, Earbee v. 
Womack v. Dearman, 

-, Foard v. 

— ■ , Freeman v. 

— , Gould V. 

— , Stephens v. 

., Whitsett V. 

, Willard v. ■ • 

Wood, Bondurant v. 

-i v. Brown, 

— , Crutchfield v. 

v. Duncan, 

■■ — ;• Eckford y. 

v. Gary, 



r, Goodwin v. 

, Mar-shall v. 

— v. McCain, 

, V. 

, Vaughn v," 

, White V. 

— V. Wood, 

— : Y. Yohgs,"' 

Woods Y. Brown,' 

7—, Haynes v. 

— v. IVIcCann, 

— v. Nabors, 

V. Woods, 



Woodall, Martin v. 
Woodcock Y. Campbell, 

, >— v. 



Woodfin, Boyd v. 
Woodley v. Findlay, 
Shirley, 



Woodruff, Griggs v. 

State Bank, 



WoodAvard v. Clegge, 
Y. Harbin, ' 



-, Ilerrin v. 
-, Secor Y. 
V. Smith, 



Wooldridge, Moffet y. 
Wooley V. Clements, 
Worrell, Cross v. 
State, 



7 A. R. 645 

4 P. 3^21 
6 A.R. 178 
9 A. R. 305 

1 S. 234 

1 S.190 
4 A. R.138 

3 S. 335 

2 A. R. 131 
. 2 A. R. 667 

3 A. R. 564 
■7 A. R. 489 

9 P. 366 

7 P. 513. 

2 A. R. 368- 

4 A. R. 539 
2 A. R., . 83 
•3 A. R. 738 

8 A. R. 466 

4 A. R. 539 
1 A. R. 543 
8 A. R. 563 

16 A. R. 702' 
9 P. 227 

5 A.R. 136 
5 A, R. 43 

•4 A. R. ,296 

5 A. R. 152 

16 A. R. 80& 



V 
4 
5 

15 
3 



A. R. 800 
A. R. 258 
A. R. 304 
A. R. 358 
A. R. 756 
9 P. 208 

8 A. R. 742. 

1 S. 12 

3 A. R. 61 
'IS. 172 

M. 45 

I S. & P. 244 

2 P. 456 
2 A.R. 41 

3 S. 357 

9 A. R. 716 

M. 14 
14 A. R. 9 

4 A. R. 292 
8 A. R. 317 
1 A. R. 104 
4 A. R. 534 

IL A. R. 792 

8 A. R. 500 

7 A. R. 112 

3 S. 

HA. R. 

II A. R. 
12 A. R. 



322 
220 
108 
732 



AVprshani v. Goar, 



4 P. 441 



LE OF CASES. 



"Worshani, Mooro y, 
Woi-thington v. McRolje 



Porter v. 
Steele 



Wragg'v. B. B. iit Mobile, 

, Lamb v. 

, Powell V. 

V. State, 

Wren, -Johnson v. 
V. Wai'dlaw. 




13 A 

14 A 



8. 

M. 



Wrigglesworth V .State Bank, i A. 11. 2: 

Wright, Bentley v. 3 A. IL (31 

• — , Boling V. 16 A. 11. 

v. Bolton, 8 A. K. 

— — ■ — •, Burroughs v. 3 A. E. 

V. Burt, 5 A. R. 

■ , Drummond v. 1 A. R. 

V. Elliott, 1 S. 

, Gibbs V. . 14 A. R. 

V. Lyle, 4 A. R. 

— , Mayor of Tuskaloosa v. 2 P. 

^ V. McAlexander, 11 A. R. 

V. Minter, ' 2 S. 

, Moore v. 4 S. & P. 



101 

41!',. 

171 

03 



j07 

664 

548 

43 

205 
391 
465 
112 
230 
236 
453 
84 



;ht, Morrison v. 
A . MuUlu^, 
V. Powell, 
Powers V. 
V. Spencer, 
V. Swan, 
Y. Turner, 
W heelock v. 
Wyattv. Avery, 

Y. Ayi-es, 

Y. Bibb, 

~ Y. Campbell, 

V. Clepper, 

Y. Greer, 

=^ — , Hodge V. 

— : Y. Judge, 

, LockhartY. 

Y. Majree, 



Wykoff Y. Taylor, 
Walker v. 



Wjniian Y. Calnpbell, 
Wyun Y. Williams, 
Wyser, Findley y. 
, Webster v. 



xcv 



7 P 

: S. & P 

8 A. E 



219 



66 
516 
84 
29 
163 
586 
157 
i91 



E. 

M. 

1 S. 

6 P. 
1 S. 

4 S. & P. 

14 A. R. 

' - P. 

4 S. & P. 

M. 390 

5 A. R. V03 

4 S. & P. 318 

10 2i. R. 271 

7 P. 37 
10 A. R. 231 

3 A. R. 94 

2 S. & P. 105 

14 A. R. 5B0 

6 P. 

M. 

1 S. 

1 s. 



219 

136 

23 

184 



Y 



Yancey y. Ilankins, BI. 171 

, Mahone y. 14 A. R. 395 

, Webster y. M. 183 

Yarborough, Goodwin y. 1 S. 152 

Y. Hood, 13 A. U. 176 

, Jones V. 2 A. R. 524 

Y. .Judi^e of Shelby, 15 A. R. 556 

■ Y. Moss, 9 A. R. 382 

Y. Scott, 5 A. R. 221 

— , Shaw Y. 3 A. R 58S 

, White Y. 16 A. R. 109 

Y. Wise, ■ 5 A. R. 292 

Yeatmans, Weaver y. 15 A. R. 539 

Yerby, Stoker y. U A. R. 322 

Yonge, Wood v. 9 P. 208 
Yongue, Brock v. • , 4 A. R. 584 

, V. 7 A. R. 64 

Youaig, Bright v. 15 A. R. 112 



Young, Buljavd v. 

, Cheatham v. 

Y. Clark, 

, Dubose Y. 

■ , v. 

Y. Foster, 

Y. Harris, 

, McGowen v. 

, v. 

v. McLemore, 

, Rowdon Y. 

Y. Scott, 

Y. State Bank, 

, Tatum V. 

— , Williams v. 



3 
5 A. 
2 A. 

10 A. 
14 A. 

7 

2 A. 

2 

2 S. & 

3 A. 
12 A. 

5 A. 

5 A. 

1 



Youngljlood, O'Connor y. 
Yuil'le, Mayor of Mobile y. 



S. 46 
R. 353 
R. 264 
R. 365 
R. 139 
P. 420 
R. 108 

S. 276 
P. 160 
R. '295 
R. 234 
R. 475 
R. 179 
P. 298 
R. 145 
R. 718 
R. 137 



z 



Zachariah, Garrard v. 

— , —_ Y. 

Zaner, Smith v. 



1 S. 272 
, 2 S. 410 
4A:R. 99 



Zuntz, Littell v. 
Zurcher v. Magee, 
, Smith v. 



2 A. R. 256 
2 A. R. 253 
9 A. R. 208 * 



AS. 



t 



ss 



• . ** - •■•■,. 

■■•■ / ■ CASES OVE'RRULEIX 

IN CONFLICT, EXPLAINED, AND CHANGED BY STATUTE. 



Acre V. Ross, 3 S. 288, fifth point, changed by statute. Clay's Dig. 334, § 121. 
Adams v. Eobinson, Minor, 285, changed by statute. Clay's Dig. 312, | 39. 
Adkins v. Allen, 1 S. 130, first point, changed by statute. Clay's Dig. 61, | 33. 
Alford V. Johnson, 9 P. 320, fifth point, conflicts with second point in Woodley v. 

Shirley, Minor, 14. 
Allen V. Allen, Minor, 249, explained, in White v. Strother, 11 A. R. 720. 
Armstrong v. Gay, 1 S. 175, second point, overruled in Hill v. Norris, 2 S. & P. 

114; but supported by Shirley v. Fellows, 9 P. 300 ; Foard v. Womack, 

2 A. R. 368, and Evans v. Norris, 1 A. R. 511. 
Ashurst V. Martin, 9 P. 566, second point, changed by statute, Acts of 1849-50, 

p. 67, i 1. 
Avent V. Read, 2 SI 488, first point, changed by statute, Clay's Dig. 256, § 8. See 

Daniel v. Sorrells, 9 A. R. 436. 
Badger v. State, 5 A. R. 21, third point, held to be a dictum, in Hall v. State, 

9A. R. 827. 
Baker v. Washington, 5 S. & P. 142, third point, changed by statute, Clay's Dig. 

255, I 5. 
Baldwin v. Brogden, 2 S. 9, overruled, in effect, by Hudson v. Tindall, 1 S. & P. 237. 
Bank of Mobile v. State, Minor, 290, conflicts with Findley v. Ritchie, 8 P: 452, 
Barnett v. Bass, 10 A. R. 951, conflicts with the fourth point, in Brazeal v. Smith, 

5 A. R. 206. 
Bamey v. Frowner, 9 A. R. 901, first point, explained in Nance v. Hooper, 11 

A.R.552. 
Barton v. Peck, 1 S. & P. 486, first point, overruled in Hill v. Fitzpatrick, 6 A. R. 314. 
Bates v. Terrell, 7 A. R. 129, fourth point, overruled in Gillespie v. Battle, 15 

A. R. 276. 
Bell V. Ellis, 1 S. & P. 294, held to be a dictimn, in Davidson v. Ernest, 7 A. R. 817. 
Bell v. Rhea, 1 A. R. 83, first point, changed by statute, Clav's Dig. 324, § 68. 
Bell V. Robinson, 1 S. 193, changed by statute. Clay's Dig. 197, | 27. 
Bennett v. Robinson, 3 S. & P. 227, first point, qualified in Falls v. Gaither, 9 P. 605. 
Berry v. Carter, 4 S. & P. 387, changed by statute. Clay's Dig. 538, | 1. 
Bishop V. Cox, Minor, 204, changed by statute. Clay's Dig. 311, § 28. 
Blackwell v. Vastbinder, 6 A, R. 218, third point, qualified in Parks v. Stonum, 

8 A. R. 752. . ■ 

Blocker v. Burruss, 2 A. R. 354, first point, explained in P. & M. Bank v. Bor- 
land, 5 A. R. 531. 
Boggs V. Bandy, 2 S. 459, overriiled in Welch V. Walker, 4 P. 120. 
Boren v. M^Gehee, 6 P. 432, second point, limited in Leach v. Williams, 8 A. R. 759. 
Borland v. Mayo, 8 A. R. 104, eighth point, changed by statute, Acts 1845, p. 136, g 2. 
Bourne v. Stitte, 8 P. 458, third point, changed by statute, Acts of 1846, p. 21. 



xcviii CASES OVERRULED. 

Boyington v. State, 2 P. 100, overruled, in State v. Middieton, 5 P. 48-i. 
Brannan v. Oliver, 2 S. 47, limited, iu Saltmarsh v. Beene, 4 P. 283. * 

Brazier v. Tarver, 4 A. 11. 5G9, first point, quaWficd, in White v. Nance, 16 A. R. 345. 
Brock V. Ileaden, 13 A. R. 370, second point, held to be a dictum, in Herbert v. 

Hanrick, 16 A. R. 581. • . 

Brown V. Massey, 3 S. 220, first point, overruled in ]VWdcllebro£ik v. Ames, 5 S. & 

P. 158, and changed by statute,. Olay's Dig. 61, f 32.' 
Brown v. Simpsoji, 3 S. 331, first ppinf, overruled,, in Findley v. Ritchie, 8 P. 452'. 
Brown v. Torvcr, Minor, 370, foui'th point, conflicts with'Mobre v. Horn, 5 A. R. 234. 
Bryant V. Qj^^eu, 1 P. 201, overruled, iu effect, by Bancroft v. Paine, 15 A. R. 834. 
Burgess -V. Sugg. 2 S. & P. 341, first point, overruled, in Perkins v. Moore, 16 
■ A. R. 17: and second p©int, e^'].:ilaiycd, in Falls v.,Wessin.ger, 11 A. R. 801. 
Cain .V. Byrd, 1 S. 180, cha,nged by statute, Acts 1846, p. 35. ■ 
Callison v. Leilions, 2 P. 145, second point, overruled, in effect, in Cobb v. Force, 

6 A. R. 468, amd Ehnes v. IMcKenzie, 5 A. R. 617. 
Capel V. McMillan, 8 P. 19X, ninth point, couflicts Avith Hall v. Lay, 2 A. R. 529, 

and Wood v. Wood, 3 A. R. 756; but is sustiiinaed by Lang v. Pettus, 11 

A. R. 37, ,arid Isaacs v. Boyd, 5 P. 388. 
Carroll v. Meeks, 3 P. 226, first point, changed by statute,. Clay's Dig. 326, | 76. 
Carter v. Dade, I S. 18, overr,uled, in Cuinmings v. Edmundson, 5 P. 145. , • 
-Cavender v. Funderburg, 9 P. 46'P,''€haaged by statute. Clay's Dig. 358, § 3. 
Chamberlain f. Bates, 2 P. 550, cltanged Ijy i^t^itute, Clay''s Dig. 194, § 9. 
Chandler v. Lyon, 8 A. I|. 35, first .tfoint, conflicts' with Kemper Nav. Co, v. 

Schieffelin, 5 A. R, 493. ' • " '• . , . ■ " 

Cherry v. Belcher, 5 S. & P. 13.3,, sixth point, overruled,. in Forrest v. Robinson, 

2 A. R.,215 ; and fourth point, conflicts with JuMan v.'Reynqlds, 8 A. R: 680. " 
Clemens v. Prout, 3 S. & P. 345, first poilit, overruled, in effect, in Lockhart v. 

McElroy, 4 A. R.5/'2 ; and secondit4^oiul, in Morrison v, Mai'^vin, 6 A. R. 797. 
Click V. Click, Minor, ^79, overruled, in Duqcan v. Tombeckbee Bank,' 4 P. 181; 

and Demott v. Swaim, "5 S." & P. 293. * ' 

Cloud V. Goli'ghtly, 5 A. R. 653j first point, held to be. a dictum, in Kennedy y* 

Kennedy, 8 A. R. 391. ,, * ■ ' • ' 

Coburn v. Harwopd^ Minor, 93, changed by statute, Clay'g Dig. 4.32 | 7. 
Colbert v. Chandler, Minor, 254, changed 'by.statute, 'Clay's Dig. 195, | 13. "" 
Collier v. Crawford, Minor, 100", second point,' overruled, in effect, in Bryant v. 

Simpson, 3-S. 339; and McCoilora t-. Hogari- 1 A.'R. 515. 
Cooper V. Maddan, 6 A. R. 431, first point, pon:Qicts with Smith v. Hearne, 2 S. & 

P. 81. ■ .<■ 
Creighton v. P. & M. Bank, 3 A. R. 156, liiaited, in Mausony v. U< S. Bank, 4 A. 

R. 73:5. , ■ ' . ■ 

Cullum V. Batre; 2 A. R. 415, fimrth point, conflicts ' with 6ayle v. Toulmin,, 5 

A. R. 283 ; but is sustained by*- Walkea^ v. Bank of Mobiie,6 A. R. 452. 
Curry v. Bank of Mobile, % P. §60, third point, conflicts with Hutat v. Stewart, 7 

A. R. 525i . , ,:' _. ' 

Darrington v° Borland, 3 P. 10, twelfth -point, overruled,' in efl^ect, in CarringtoQ 

V. Manning, 13 A'. R. Oil. . . ; . -■ 

Davis V. Campbell,' 3 S. 319, third point, conflicts with Kennon v. McRea, 7 P. 175, 
Davis V. Dickson, 2 Si 370, sixth point, changed by sttttute. Clay's Dig, 334, ^ 121. 
Desha v. Stewart, 6 A. R. 852, fii-st point, conflicts with Hunt v. Stewart, 7 A. R. 525/. 
Dufphoy V. -Frenave, 5 S. & P. 215 third pcnnt, changed by statute. Clay's Dig. 

157,139'! '■ ■.•'.' 

JDumes v. McLoskey, 6 A. R. 239, overruled, in North v. Eslava, 12 A. R. 240.. 
Dunham v. Carter, 2 S.496, second point, changed by statute. Acts of 1849-'50, p. 81. 
]Elmes V. Sutherland, 7 A. R. 262, fourth point, changed by statute, Acts 1846, p.. 

36, H- . 

JEvans v. Gordon, 8 "P. 142, second poia.t, conflicts with Beal'v. Snerdicor, 8 P. 5213; 

Jennings. V. Cummings, 9 P. 309; Tarver v. Na^ce, 5 A. R. 712; and 

.Bancroft v. Pain6, 15 A'. R. ■834*; but is sustained by Birch v. Tillotson, 

16 A. R. 387. . ■ » 



. CASES OVERRULED. xcix 

Evans v. Xorris, 1 A. R. 511, second point, held to be a didum, in Thrash v. 

■ SmiiAYalt, 5 A. R. 13. 
Evans v. St. John, 9 P. 1S7, ninth point, conflicts with Moore v. Horn, 5 A. 11. 234, 
Faris v. King, 1 S. 255, second point, changed bj^ statute, Clay's Dig. 591, -^ 9. 

See Cameron v.. Nail; 3 A. R; 158. 
^ennell v. Patrick, 3. S. & P-. 24-1, second point, changed by statute. Clay's Dig, 

l'^5, I 13. . . , . . 

Eindley v. Ritchie, 8 P. 45-2', .conflicts- with Bank of Met) ilp v. State; Minor, 290. 
Flora V. The State, 4 P. Hi, changed by statute, Acts of 1849-50, p. 4l. 
Flournoyr. Childress, Minbr, 93', first -point, overruled, in feffect, in Bondurant v. 

Woods, 1 A. R. 543. ' ■ '' 

Fortune v. State Bank, -4 A. R. 3-8'&. second point, conflicts with Sheppard v. Bu- 

ford, 7 A. R. 90. 
Foster v. McDonald, 3 A. R. 34, and 5, A. R. ■ 376, first point, explained, in Gin- 

drat V. Mechanics' Bank, 7 A. R. o2'4. 
Fryer v. Austill, 2 S. 119, firfet p«unt, oyferruled, in Lockhart ViMcElroy, 4 A. R. 

572. ^ , > . • V. ■- ■ , -.• •' 

Fryer v. Dennis, 2 A. R. 144, third point, overruled, in e"ffect, in Taylor v. Branch 
• •• •B.ank atlluntsville, 14.A. R.-.633. ,, ^ - ' 

Fuqua v. Stone, 1 S. 435, first point, overruled, in Davis v. DicksonV S S. 370. 
Garrard V. W^bb, 4 P.' 73, secoad point, overruled, in eifect, in Weatherford v, 

James, 2 A. R. 170. - ,- " . . ^ 

Garrow v. Emanuel, 3 S. 285, second point, changed by stQ,tute,. Clay's Dig. 194, f 

9. See Powe V. Sterrett, 16',A.-.R. 339. ■ ' 

Givhan v. Dailo}', 4 A. R. 336, seQoad point,- ^hanged by statute. Acts 1845, p. 50. 
Glover V. Robinson, Minor, 101, first poi-rit, changed ^y statute. Clay's Dig. 357, 1 80. 
Green v. Green, 7 P. 19, second point, held to be.a' dictum, in Hiiliard v. Binford, 

10 A. R. 991. . .' • " . • 

Griffing v. Harfis, 9 P. 225, first point, exjjlained, in Commercial Bank v. White- 
head, 4 A. R. 637. 
Hall V. Lay, 2* A. R. 5.29,' explained, ini Laag^V. Pettus, 11 A. H. 371 
Hanks v. Hinsofi, 4 P. 509, fourth point, qualified, in effect, by Randolph v. Carl- 
ton, 8 A. R. 606. • ■ •, ; - . , . 
Harris V. Clapp, Minor, 328, fourth point, changed by statute. Clay's Dig. 58, § 15.. 
Harris v. Richardson, Minor, 97, first point, overrviled, in eifect, in Roebuck v.. 

■ Dupuy, 2 A. R, 352. ■ v ' 

Hayter v. State, 7 P. 166, first ])oint. changed by statute. Clay's Dig. 442, | 25. 
^Herbert v. Nashville Bank, 1 St & P. 286, first point; changed by statute, ClayV; 

Dig. 334, I 121. ■:' . , 

Hill V. Norris, 2 S. & P. 114, overruled, in Foard v. Womack, 2 A. R. 368, 
Hill V. State Bank, 5 P. 537, first point, explained, in Caskey v. A'itcher, 8 A. R. 

622. ■ ■ ■ . ■ . .. * . 

Hogan V. Branch Bank at Decatur, 10 A. II. 485, second point, overruled in Grif~ 

, fin V. State Bank, 17 A. R. 258. 
Hollinger v. Holly, 8 A. R. 454, 'first poitit, conflicts with Phelan v. Phelan, 13 

A. R. 679 ; • and is in effect, OA^erruled, in Middleton v. Maull, 16 A. R. 479.^ 
Honeycut v. Strother, 2 A. R. 135, explained, in McNair v. Cooper, 4 A. R. 660*.. 
HornV. Grayson, 7 P. 270, third point, changed- by statute. Clay's Dig. 229, | 41, 42.,, 
Howard v. Wear, Minor, 84, first point, overruled, in Carter, v. Dade, 1 S., 18, but 

sustained by.Cummings v. Edmundson, 5 P. 145. .• . 
Howie V. State, 1 A. R. 113, seventh point, cli<%jiged by statute. Clay's Digs ,312, 1 39. 
Humphrey v. ■Sta:te, Minor, 64, second point, changed by statute,, ©lay's Dig, 473,. 




_ 8 P. 360, and Desha 'v. Stewart, 6- A. R. 852. 
Innerarity v. Hitchcock, 3 S. & P. 9, first p.oiBt„ cha.nged by statute, Clay's Dig. 

480,.^ 26. .1?,ii:;,U-: • ,.•• ,.>.^■.';^i: ■ • 



c CASES OVERRULED. . 

Isaacs V. Boyd, 5 P. 388, first point, conflicts with Hall v. Lay, 2 A. R. 529, and 

Wood V. Wood, 3 A. R. 756 ; but is sustained by Capel v. McMillan, 8 P. 

197, and Lang v. Pettus, 11 A. R. 37. 
Johnson v. Henry, Minor, 13, changed by. statute. Clay's Dig. 357, f 80. 
Johnson v. Howe, 2 S. 27, second point, overruled in Brown v. Adair, 1 S. & P. 49. 
Jones V. Yarborough, 2 A. F\,. 524, second point, conflicts with Randolph v. Cook, 

2 P. 286, and is overruled, in effect,, by Rainey v. Long, 9 A. R. 754. 
Judson V. Emanuel, 1 A« R- 598, second point, corrected, in Culluni v. Batre, 2 A. 

R. 415. 
Kemper Nav. Co. v. Schieffielin, 5 A. R. 493, first point, conflicts witti Chandlet 

V. Lyon, 8 A. R. 35. 
Kennedy v. Russell, Minor, 77, changed by statute, Acrts 1846, p. 37, ^ 1. 
Kennon v. Bell, Minor, 98, overruled, in effect, by Greer v. McGehee, 3 P. 398. 
Kirkpatrick V. Bethany, 1 A. R. 201, third point, conflicts with Sexton v. Rone, 7 

A. R. 829. 
Killough V. Steele, 1 S. & P. 262, first point, changed by statute, Clay's Dig. 255, | 5. 
Lawson v. Orear, 4 A. R. 156, first point, conflicts with Davis v. McKinney, 5 A.. 

R. 719. 
Lea V. Branch Bank at Mobile, 8 P, 119, eighth point, overruled, in Gazzam v. Bank 

of Mobile, 1 A. R. 268. 
Leavens v. Butler, 8 P. 380, fourth point, changed by statute, Clay's Dig. 199, § 36i. 
Lowry V. Armstrong, 3 S. & P. 297, second point, overruled, in effect, by Forrest 

V.Robinson, 2 A. R. 215. 
Lucas V. Bank of Darien, 2 S. 280, fourteenth point, overruled, in effect, by For- 
rest v. Robinson, 2 A. R. 215. 
Magee v. Carpenter, 4 A. R. 475, explained, in P. & M. Bank v. Willis, 5 A. R. 782. 
Mahoneyv. Chandler, 7 A.R. 732, second point, changed by statute. Acts 1846, p. 35. 
Mansony v. Touhnin, 6 A. R. 474, changed by statute. Acts 1846, p. 15. 
Martin v. Dortch, 1 S. 479, fifth point, overruled, in effect, in Skinner v. Gunn, 9 

P. 305. 
Mason v. Brazier, 1 A. R. 635, fourth, and fifth points, changed by statute, Clay's 

Dig. 536, 1 14. 
McAlpin V. May, 1 S. 520, first point, overruled, in McCall v. McRae, 10 A. R. 313. 
McBroom v. The Governoi-, 6 P, 32, third point, overruled, in Hill v. Fitzpatrick, 

6 A.R. 314. ■ \ ^ . 

McCutchen V. McCutchen, 8 P. 151, third point, explained, in Chilton v. Harbin, 

6 A. R. 171. 
McGregor v. Hall, 3 S. & P. 397, fourth point, explained, in Perkins v. Mayfield, 

5 P. 182. 
McKenzie v. McColl, 3 A. R. 516, first point, conflicts with Rainey v. Long-, 9' A. 

R. 754. 
McVay v. Bloodgood, 9 P. 547, second point, overruled, in effect, in CuUum v. Er- 

win, 4 A. R. 452. 
McWhorter v. Marrs, 1 S. 63, second point, overruled in Rodgers v. Waters, 2 A. 

R.644. 
Meeker v. Childress, Minor, 109, second point, limited, in Gibson v. Andrews, 4 

A. R. 66. 
Melone v. Gaines, Minor, 317, changed by statute. Clay's Dig. 195, § 13.. 
Meredith v. Naish, 3 S. 207, overruled, in Johnson v. Hanson, 6 A, R. 351, 
Metcalf V. Watkins, 1 P. 57, first point, changed by statute. Clay's Dig. 591, § 9. 

see Cameron v. Nail, 3 A. R. 158. 
Moreland v. Ruffin, Minor, 18, second point, overruled, in Hanrick v^ Farmers' 

Bank, 8 P. 539. 
Mullins V. Cabiness, Minor, 21, first point, changed bv statute. Clay's Dig. 334, 

§121. 
Murchie v. Cook,l A. R. 41, explained, in McNair v. Cooper, 4 A. R. 660. 
Nedv. State, 7 P. 187, second point, changed by statute. Acts of 184G, p. 21. 
Oden v. Stubblefield, 4 A. R. 40, third point, explained, in samccasc, 9 A. R. 651. 
Olds V. Sargent, 1 S. 37, overruled, in Wade v. Killough, 3 S. & P. 431. 



CASES OVERRULED. ci 

On- V. Diivall, 1 A. K. 262, changed by statute, Clay's Dig. 53G, § 14. 

Otey V. Rives, Minor, 401, changed by statute, Clay's Dig. 311, | 28. 

Pace V. Dossey, 1 S. 20, first point, overruled, in effect, in Moore v. Horn, 5 A. R. 

234 ; and second point, in Perkins v. Moore, 16 A. R. 17. 
Parks V. Greening, ^Nlinor, 178, second point, changed by statute, Clay's Dig. 334, 

1 121. 
Perkins v. Mayfield, 5 P. 182, fifth point, overruled, in effect, by P, & M. Bank v. 

Willis, 5 A. R. 770, and Langdon v. Brumby, 7 A. R. 53. 
Perkins v. The Governor, Minor, 352, qualified, in effect, by Randolph v. Carlton, 

8 A. R. 606. 
Phereby v.The State, 16 A. R. 774, changed by statute, Acts of 1849-'50, p. 49. 
Pierce v. Pass, 1 P. 232, overruled, in White v. Toles, 7 A. R. 569. 
Purnell v. Hogan, 5 S. & P. 192, changed by statute, Acts 1845, p. 136, 1 1. 
Pool v.Cahawba& Marion R.R. Co., 5 A. R. 237, changed by statute. Acts 1844, p. 5. 
Powell v. Gray, 1 A. R. 77, third point conflicts vrith fifth point in Wetumpka R. 

R. Co. V. Bingham, 5 A. R. 057. 
P. & M. Bank v. Borland, 5 A. R. 531, first point, held to be 3, dictum, in P. & M„ 

Bank v. AValker, 7 A. R. 926. 
Ramsey v. Johnson, Minor, 418, overruled, in Lea v. Branch Bank at Mobile, 8 Pi 

119. 
Ravisies v. Alston, 5 A. R. 297, fourth point, qualified in Dearing v. Watkins, IG 

A. R. 20. 
Reynolds v. Culbreath, 14 A. R. 581, changed by statute. Acts of 1849-,50, p.- 44, 

Richardson V. Cleaveland, 5 P. 251, tenth point, overruled, in Livingston v. Steam-- 

boat Tallapoosa, 9 P. 111. 
Roberts v. Johnson, 2 S. 13, second point, explained, in Sadler v. Houston, 5 

S. & P. 205.. 
Roberts v. Taylor, 4 P» 421, held to be a dictum, in Turnly v. Stinson, 1 A. R. 456. 
Robinson v. Hamilton, 4 S. & P. 91, second point, overruled, in Foard v. Johnson. 

2 A. R. 565. 
Robinson v. Rapelye, 2 S. 86, fourth point, changed by statute, Acts of 1849-50, 

p. 57, § 1. 
Roden v. Roland, 1 S. 266, seems to conflict, with Bancroft v. Stanton, 7 A. R. 351- 
Ross V. Wells, 1 S. 139, overruled, in effect, in Thompson v. Armstrong, 5 A^ R. 

383, but sustained by Kornegay v. Salle, 12 A. R. 534. 
Sample v. Royall, 4 A. R. 344, changed by statute, Acts 1845, p. 151. 
Sartin v. Weir, 3 S. & P. 421, sixth point, changed by statute, Clay's Dig. 61,|33'.' 
Sewall V. Franklin, 2 P. 493, first point, changed by statute. Clay's Dig. 61, g 33. 
Shrader v. Walker, 8 A- R. 244, first point, explained, in Boitler v. Butler,. 11 

A. R. 668. 
Simonton, ex parte, first point, changed by statute. Clay's Dig. 444, ^ 40» 
Simonton v. Steele, 1 A. R. 357, explained, in McNair w Cooper ^ 4 A. R. 660. 
Sims V. Canfield, 2 A. R. 555, seventh point, held to be a dicUim, in Brewer v.. 

Strong, 10 A. R. 961. 
Singleton v. Gayle, 8 P. 270, eighth point, overruled, in Holman v. Bank of Nor- 
folk, 12 A. R. 369 ; and ninth point, changed by statute, Clay's Dig.. 

354, 1 58. 
Smith V. Donelson, 3 S. & P. 393, third point,, overruled in Briley v. Hodges,, 3 

P. 335. 
Smith V. Hearne, 2 S. & P. 81, second pciot, conflicts wnth Cckoper v. Maddan, 6 

A. R. 431. 
Smith V. Hunt, 2 S. 222, first point, overruled, in Hunley v. Lasag, 5 P. 154 ; btit 

Hunley v. Lang, is changed by statute. Clay's Dig. 324, 1 68. 
Standefer v. Chisholm, 1 S. & P. 449, second point, explained, in AVebstcr v. Smith, 

10 A. R. 429. 
State v. Hughes, 1 A. R. 655, fifth point, exjjlained, in State v. Clarissa, 11 A. R. 57. 
State V. Paul, 5 S. & P. 40, second point, overruled, in State v. Porter, 1 A. R. 688. 
State v. Phil, 1 S. 31, second point, changed by statute, Clay's Dig. 444, § 40. 

1 — N 



«ii CASES OVERRULED. 

State V. Plunket, 2 S. 11, changed by statute, Clay's Dig. 426, § 62. 

State V. Stebbiris, 1 S. 299, first point, overruled, in effect, by Nance v. Hemphill, 

1 A. R. 551. 
St. John V. Garrow, 4 P. 223, seems to conflict with Crawford v. Childress, 1 

A. R. 482. 
Strader v. Alexander, 9 P. 441, first point, changed by statute. Acts 1844, p. 5. 
Stone V. Lewin, 8 A. R. 395, changed by statute, Acts 1846, p. 36, | 4. 
Sutherland v. Goff, 5 P. 508, conflicts with Tate v. Gilbert, 5 S. & P. 114, and is 

limited, in Fuqua v. Hunt, 1 A. R. 197. 
.'Sykes v. Sykes, 2 S. 364, held to be a dictum, in Johnston v. Glascock, 2 A.R.218. 
Tate V. Gilbert, 5 S. & P. 114, third point, conflicts with Sutherland v. Gofi", 5 P. 508. 
Tate V, Gilbert, 2 P. 386, third point, changed by statute. Acts 1846, p. 36, 1 1. 
Taylor v. Rushing, 2 S. 160, third point, overruled, in Pope v. Lewis, 4 A. R. 487. 
Terry v. Ferguson, 8 P. 500, sixth point, changed by statute. Clay's Dig. 199, § 36. 
Thomas v. Brown, 1 S. 412, overruled, in effect, in Bryant v. Simpson, 3 S. 339 ; 

McCoUom v. Hogan, 1 A. R. 515 ; Dougherty v. Colquitt, 2 A. R. 337 ; 

and Dearing v. Smith, 4 A. R. 432. 
Thompson v. Armstrong, 5 A. R. 383, first point, overruled, in Kornegay v. Salle, 

12 A. R. 534. 
Thompson v. Miller, 2 S. 470, first point, held to be a dictum, in Reid v. Brasher, 

7 P. 448. 
Tindall v. Childress, 2 S. & P. 250, second point, changed by statute. Clay's Dig. 

434, ^ 17 ; and fourth point, held to be a dictum, in Roberts v. Taylor, 

7 P. 251. 
Tindall v. Collins, 2 P. 17, first point, changed by statute. Acts 1846, p. 37, § 1. 
Torbert v. Wilson, 1 S. & P. 200, second point, conflicts with fourth point, in Bul- 
lock V. Perry, 2 S. & P. 319. 
Toulmin v. Buchanan, 1 S. 67, overruled, in Miller v. Thompson, 3 P. 196. 
Wade V. Kelly, 2 S. 443, first point, changed by statute, Clay's Dig. 334, § 121. 
Walker v. Bank of Alabama, 4 S. & P. 215, second point, explained, in Roberts v. 

State Bank, 9 P. 312. 
Walker v. Hallett, 1 A. R. 379, third point, conflicts with Bowie v. Minter, 2 

A. R. 406. 
AVard v. Alexander, 1 S. 382, chang-ed by statute, Clay's Dig. 311, f 27, 28. 
Wetumpka R. R. Co. v. Bingham, 5 A. R. 657, fifth point, conflicts with third 

point in Powell v. Gray, 1 A. R. 77. 
Wheelock v. Fitch, 3 P. 387, overruled, in Abercrombie v. Mosely, 9 P. 145. 

■ Wiley V. White, 2 S. 331, and 3 S. & P. 355, overruled, by Wyman v. Campbell, 6 

P. 219. 

■ Wilkins v. Wilkins, 4 P. 245, third point, changed by statute. Clay's Dig. 354, I 

58 ; and fourth point, held to be a dictum, in Inge v. Boardman, 2 A. R. 

331. 
Williams v. Hinton, 1 A. R. 297, second point, changed lyy statute, Clay's Dig. 

358, § 3. 
Williams v. Lewis, 2 S. 41, overruled, in Oliver v. Hutto, 5 A, li. 211. 
Williams v. Young, 3 A. R. 145, first point, changed by statute, Clay's Dig. 158, ^ 41. 
Williamson v. Branch Bank, 7 A. R. 906, fifth point, doubted, in Branch Bank v. 

Wade, 13 A. R. 427. 
Wilson v. Jackson, Minor, 73, overruled, in effect, by Morrison v. Spears, 8 A. R. 

93 ; and Moore v. Bradford, 3 A. R. 550. 
Wiswall V. Ticknor, 6 A. R. 178, second point, qualified, by Dearing v. Watkins, 

16 A. R. 20. 
Wood V. Wood, 3 A. R. 756, first point, corrected, in Lang v. Pettus, 11 A, R. 37. 
. Woodley v. Shirley, Minor, 14, second point, conflicts with fifth point in Alford v. 

Johnson, 9 P. 320. 
Woods V. McCann, 3 A. R. 61, changed by statute. Clay's Dig. 195, § 13. 
Woods V. Woods, Minor, 45, overruleid, in effect, by Baker v. Washiugton, 5 S. & 

P. 142, and subsequent cases 






A < 



DIGEST. 






♦v^ 



ABATEMENT. 



1. W'HAT .WILL Abate a Writ, or other 



Process.. - 



''.* 



(a) Befecfa in the writ, or' sei'vicOj or 
- ' . want of jurisdiction. 

(6) Residence and Freehold, in anotlier 
county. 

(e) Death of Parties ; and herein of per-, 
mitting others to come in and de- 
fend, or pi'osecute. 

(d) Coverture. 

(e). Misnomer, Misjoinder, and Non- 
joinder of parties. . . . 

{/) Variance between writ aind deplara- 
tion. 

ig) Pendency of another action. 
h ) Cause of action not accrued. 
i ) Insolvency of estate, by Executors, 
and Administrators. 

II. How TO TAKE ADVANTAGE OF MAT- 

TERS OF Abatemej;t. 

(a) By plea in abatement. 

(b) By plea, either in abatement or bar. 

(c ) By Motion ; and herein , of. Motions 

to quash. 

III. When, and by whom the objec- 

tion .MUST BE taken, AND WHAT 
WILL BE A WAIVER OF IT. 

(a) When pleas in abatement must be 

filed. 
(6) Who may plead in abatement. Or 

move to qviash. 

(e) What will be a waiver of matters in 

abatement. 



IV. 



Form and requisites of Plea, and 
judgment thereon. 



(«) Form and requisites of plea. 
(6) Judgment thereon. 

V. .Pleas in Abatement in Criminal 
Cases. 



I. What will Abate a Writ, or oTheS 

%^,*. ; . Process. ■ 
'' ♦ • « . 
(a) Defects in ike lurit, or service, or want 
oj'jwisdiciion. 

1. A plea in abatement of an attach- 
ment, merely denying the defendant's 
right to the property levied on, is bad on 
demurrer: The return is matter of re- 
cord, and cannot be contradicted by an 
allegation that it is false. King v. Bucks, 
11 A. R. 217. 

2. Defects in the bond and affidavit 
made o;ii suing out an attachment, must 
be pleaded in abatement; othei'wise they 
are not available on error. Btcrt v. Par- 
ish, 9 A. R. 211. 

3. An objection that the affidavit on 
which an attachment issues, has not 
been verified and subscribed, or that the 
justice before whom it purports to have 
been made, is not such in fact, must be 
presented by plea in abatement. Lowry 
V. Stoive, 7 P. 483. 

4. A writ returnable at a time to 
which it could not legally be made re- 
turnable, may be abated by plea. Jor- 
dan \. Bell, 8 P. 53. 

5. The want of an indorsement of the 
cause of action on a Avrit, maybe pleaded 
in abatement. Johnson v. Perry, 4 S. & 
P. 45. (SaffolDj J., dissenting.) 

6. But this rule does not apply to the 
writ of attachment. Ijoiory v. iStoioe, 7 
P. 483. 

7. It is a good. plea in abatement, that 
the sheriif who executes the process, is, 
beneficially, the plaintiff in the action. 
lEtchell V. Allen, 2 S. & P. 247. 

8. A plea in abatement to an ancillary 
attachment, that the defendant had been 
previously arrested, and held to bail, is 
bad on demurrer. Massey v. Walker, 8 
A. R. 167. ^ , - 

9. Where the time of holding the court 
is changed by statute; after process has 
been issued, the process cannot be aba- 
ted, because there is no saving in the 



"ABATEMENT. 



statute : The change of the term, carries 
with it all process returnable under a 
pre-existing law. Jones v. Donnell, 9 A. 
k 695. _ _ ; • 

10. Where a judgment is rendered hy 
a justice -of the peace; for a sum exceed- 
ing fifty dollars', which is remored by 
appeal to a higher. -tribilnal, theapp^l-' 
late court should not, on. motion, vacate 
the judgment; the correct pyactice under 
the act of 1819, is,' to put the defendanti 
to plead the want 'of jurisdiction', in 
abatement. Bentley v. Wric/ht, 3 Ac R. 

607. 

. . ■ ■• ,•■ ," * 

'■' ■ "» '?-■'.%'» •* , ,,«•*" 

" •* * • " « J ' 

(b) Besidenee and ''Freeli6M,Hn another 

county.. • ..• 

11. One in possession, and holding a 
deed in fee to the land, need not deraign 
the title of his grantor, and show that he 
had a right to convey, to entitle himself 
to the protection of' the statute, forbid-. 
ding a freeholder to be. sued out of -the 
county of his permanent residence. 
Sheppard^. Kain, 9 A. E.,,119. 

12. The right of a freehplder to' be 
eued in the county of his residence, is a 
personal privilege, and cannot be pleaded 
by any other party to the suit; therefore., 
a joint plea by two defendants, one of 
•whom is liable to the guit, is bad. Wea- 
ver \. Crenshaw, 6 A. R. 873. 

13. Whether ah estate in dower worild 
entitle the second husband to an esem]D- 
tion from suit, out of the county of his 
residence, gucere. lb. {See Neil j,' John- 
son, 11 A. "R. Q15.) . < - 

14. A plea of freehold. and residence 
in a county, other than that in which? 
the suit was commenced,' is g'bod as a 
plea in abatement, when it states the 
facts which authorize an exemption fropi 
suit in that county, although it begins 
and concludes as a plea to the jurisdic- 
tion, but does not-set out the proper ju- 
risdiction in affirmative terms. Frim v. 
Davis, 2A. R. 24. 

15. If an action of debt.can properly 
be maintained on, a bail bond, it does hot 
follow that the action is local; such an 
action is lialile to be abated, on -the plea 
of the defendant, if he .is .mot su§d in the 
proper county, lb. 

. 16. A plea in abatement, that, defend- 
ant was a resident citizen of another 
county, when the writ was served, is not. 
sufficient; it should a^er that he was a 



freeholder of such county. Wilson r,r 
Oliver, 1 S. 46. 

'17. A plea in, abatement, that the de- 
rfendaiit'was a residegat and 'freeholder of 
{in,other county at the time of the service 
of •^:he writ, ig bad. , Mitchell Y.Allen, 2 
Sj &P?247^^^.-; ,-■» :*> ', ' . v. 
- -18. If, a party is nol, at the tiaie of 
the issGailceioi" tlie'f\vrit, a ^resident and 
fi'i^e'hdlder in- ^ d^fP^rent v. county from 
that in' Wiiich he is sudd, he cannot plead* 
in abatem&nt such a residepce, and free- 
hold, act^uired after the .issuance of the 
v^rit, and.before its. service. lb, 

19. A resident, who 'is served with 
process in the county of his residence, 
cannot p-operly be sue?d in another coun- 
ty, unless he is sued jointly with some 
other person, jointly liable ; and in such 
a case, 'the appropriate indorsement 
must be made on the writ,^as required 
bv the statute, or the suit may be abated. 
.Deforest Y.I]Ud)is^2 ±,11.50: , 

20. An owner' of slaves", m't^y be sued 
for their 'default in not working oh the 
road,- in the county in which such slaves 
r,eside, tho.ugh he is a resident freeholder 
of another CQunty. MarneuY. Brisk, 9 A, 
R. 345. ■ ;•■'*■• 

21. Ejesidence and -freehold in anotlier 
county, may be pleaded in abatement, 
and proved, notwithstanding it inay con- 
tradict the sheriff'^ return. Cox v. Jones, 

■1 S. 379..., . . " . "\ 

22. The statute. of 1807, ^enacting, 
that no freeholder shall be sued out of 
the 'county of his permanent residence, 
applies to suij;s befbi-e justices of the 

.peace. Beady. Coker, 1 S. 22. 
.23. But not to' suits commenced by 
attaohment. Herndvn v. Givefis, 16 A. 
R.'261. .. ■ .,_^,. 

■' V • ••sr-'V • .-"f^W.. si's 

. ■ »- '". . '- ■ , ■^l, 

■• • ♦ .'. ' • • '■ , 

{c) 'Death 'ofBdrties; and herein of per- 
mitting others to come fn and defend, or 
proseciife.- 

. 24. A suit against a hu>^band and 
^wife' for a' tort, does not aljate by the 
death of the husband, unless the tort was 
committed 'by the wife in his presence, 
or by his coercion. -Dongex. Pearce, 13 
A. R..127. \ 

' 2&. It is no ansWer.to a plea in abate- 
ment, alledgii]g, that the defendant was 
dead at the commencement of the suit, 
that in the progress of the suit, he ap- 
peared by attorney, — as a dead man can- 



„*i 



lBATEMENT. 



aiot appear by attorney. Masset/r. Steele's 
•adm'r, 11 A: R. 340*. , ~ 

26. Wlien a party to a suit in tliis 
court dies, pending tlie suit, and> it is 
abated as to Him, it become^ several as 
far as he is .concerfigd; andis not merg^ed' 
in the. judgment of, this caurt;''' against, 
the^ other parties- to the judgment, ajid 
their sureties. '.Marimx. HilV'^ Jl.'-^\.. 

■ *27. In Wrae'tiO^' upo'n'a j)|-(*iaissory 
note, which has baen transferred by d^-, 
livery, if the nominal plainti'ff die,-* the 
suit pi'oceedsin the name, of the .real 
plaintiff, who is liable fox dosts.-- Pates 
V. Terrell, 7 A. R. 129. '; .*''"*'■- ' •. 

28. The statute renders^unneegssar;^)' 
the revival of a suit brought in the name 
of one person for the use of anotliei', 
where the nominal plaintiff dies, during. 
its pendency ; \>\i\ it does not authorize 
the commencement of a suit in the nanle_ 
of such party, if he be dead', and- tlie- 
defendant may ^leadhis death, either in-' 
bar or abatement. Tait 'Y.<'Frmf>,.8 A. 
R. 543. Jenls'y.Edivards, 6 A.'R: 143. 

29. Where a Suit is broijght .iii tlie 
name of 'one person' for. tlie use of an- 

. other, the defendant may plead either in 
bar or abatement, that the nominal 
plaintiff was dead at the icOmmencerhent 
of the siiit. Ji2iikST..Ji]dtvards, 6 A. R. 

143.' , ', ■.:'■:■■.■ ■ " 

. 30. Where the plaintiff in ai;i action of 
trespass to try title, dies'pehdentc lit^, the 
suit does not a1)ate ; iDut if lirought for 
the recovery of the freehold; its' pyosecil- 
tion ■ may be continued iii "the name of 
the plaintiff's heirs; and if" a tetoi of 
years, or mere chattel interest,, is sough;^ 
to be recovered, in the name of his per- 
sonal representati-ves. The Stdte,"ex reh 
Nabor's heirs, 7 A. R. 459. ', 

31. And, if the pleadings do not show 
the quap-tum of.^ interest, in controversy, 
either the heirs, or .personal representa- 
tives, may be made' plaintiffs, and their 
right to recover, will depend upon the 
proof, as adapted to their, respective 'iuT^ 
terests. 15. s, • .' \ ' • 

32. If a suit is 'improperly abated by 
the court, on ac3t)unt "of the plaintiff's 
death, its reinstatement may be coerced 
by mandaimus. lb. . ■ '. 

33. When the person for whose use a' 
suit is instituted, dies pending the suit, 
it is not necessary that his personal re- 
presentatives should be -made parties; 
l>ut the suit nrocceds in the jiame of the 



nominal plaintiff. Gray v. Timier, 7 A. 
R. 30. 

,. 34. An action of debt qui tarn, to re- 
cover a penalty for issuing a marriage 
lic^ense, to a minor, without the consent 
of the parent or gtiardian, abates by the 
death of the plaintiff, and cannot be re- 
vived bj* his personal representatives. 
Faifley \. Davis,, 6 A. R. 375. 

35;. Whether it might not be continued 
by th.e state, qnceiX' ib- 

o6. If "the defendant .dies pending an 
actio ijL on the case, brought to recover 
damages for a'fyaud in -the eschange of 
,horse;s, it -cannot be revived against his 
*'admini^rafor., . Odl-er v. Crozier, 5 A. R. 

6^.',-,.y ■ . , / 

37. If the defendant is advised of the 
"death of the plaintiff, and those prose- 
cuting the- cause,- will not admit his 
doath, tlie suit hiay be arrested by in- 
,terposing aple'a|j?m darrein continuance; 
but when the death of either of the suit- 
ors i^ suggested;, by those who before 
had represented' liim in the cause, the 
<?OTirt must of necessity ascertain the 
fact' in some oth^r manner than by plea. 
Hatch V. 6^007.-, 9 P. 177. 

,88, The '.death of a plaintiff may be 
suggQsted; and his administrator made a 
.party to, the suit, while the trial is pro- 
gressing,; if the defendant dies, his rep- 
resentatives mjay make themselves par- 
tie^ in a similar manner, or the plaintiff 
may bring them into court hj scire fa- 
cicis. ■ lb: ■• , . ' • , 

39". When the plaintiff dies pending 
an action, to sustain a'judgment in favor 
(>f one purporting to be his representa- 
tive, the record must show a revival of 
the suit in th^ name 6f such representa- 
tive. ; Kennedy \..Fickering, Minor, 137. 
■ 40. But a plea to the declaration is a 
waiver of the irregularity, joi les v. Acre, 
Minor; 5.- '" ' 

_ 41. If one of two defendants sued on 
'a joint contract dies, the plaintiff may 
su^'gest his death, and prosecute the ac- 
tion against the other;, or he may dis- 
continue this action, and commence an- 
" other against the -survivor. Harrison y. 
Kinc), Minor, 364.' 

' 42. Where onp of several plaintiffs in 
error dies, before errors are assigned, 
the suit does not ^oatc : The suggestion 
of the death is all that is required, and 
the case may proceed in the name of the 
survivors . ■ Oregg v. Bethea, 6 P. 9 . 

43. Where the death of a ^^laintiff in 



4 



ABATEMENT. 



error Is suggested, aud no personal rep- 
resentative afterward appears, the suit 
will be abated; bvit judgment cannot be 
rendered against the sureties to the writ 
of error bond. Englisli v.Andreivs, 4 P. 
319. 

44. If a party dies after judgment, the 
cjerk cannot issue a writ of error, and 
make svich persons as .appear from let- 
ters of administration, to be the repre- 
sentatives of the deceased, defendants to 
it; but the plaintiflF shovild suggest the 
death in this covu-t, produce a copy of 
the letters of administration, and "of the 
record, and either move for a sciVe/ac(Vfe 
against the representatives, to show 
cause why they should not be made de- 
fendants, and a writ of error aAvarded 
from this court, or for &ceTfiorarito'hvmg 
up the record. Seioall v; Bates' advi'rs, 2 
S. 462. 

45. If an action is commenced against 
two, upon a promissory note, and one of 
them dies, it ought to be conducted 
against the survivor alone ; and if it is 
conducted against the representative of 
the deceased defendant alone, it is a dis- 
continuance against the survr\nng de- 
fendant. Gayle v. Agee, '4 P. 507. 

46. Where a bond, or note, given to 
one as guardian, is sued on in his name, 
and he dies, the suit should be revived 
in the name of his administrator, and 
not in the name of the minor, nor of the 
guardian subsequently appointed. God- 
bold y.Meggison, 16 A. R. 140. 



, (d) Coverture. 

4tl. Where a married' woman sues 
alone, in a case wher« she might join in 
the action with her husband, an objec- 
tion to her right to do so, can only be 
made by plea in abatement; if she has 
no legal right whate,ver, she may be non- 
suited. James v. Steicmi, 9 A. R. 855. 

(e) Misnomer, Misjoinderj and Non-joinder 
of Parties. 

48. A substantial misnomer of eith'~r 
the christian or surname of the partj^ is 
good matter of a plea in abatement. 
Lynes v. The State, 5 P. 236. 

49. Where one is indicted by the name 
of George Lyons, it is a good plea in 
abatement that the defendant's true 
name, is George Lynes. lb. 



50. An objection, that the initial of 
the first name of a defendant is merely 
set out, and not his name at length, ean 
only be made available by plea in abate- 
ment, disclosing his true name. Cant- 
ley V. Moody il P. 443. 

51. At common law, in an action of 
assumpsit against common carriers, all 
joint owners were required to be made 
defendants ; but'a non-joinder could only 
be taken advantage of by. plea in abate- 
ment; under our statute of 1818, the 
action may be brought against one or 
more of the joint owners. Jones \. 
Pitclier, 3 S. & P. 135. _ 

52. When there are heirs at law not 
joined in an action of trespass to try ti- 
tle, the objection, if good at all, can only 
be taken by plea in abatement. Bonner 
V. Greenlee's heirs, 6 A. R. 411. 

53. When partners sue on a note pay- 
able to the firm, proof of the partnership 
as alledged, cannot be required, unless 
it is denied by plea in abatement. Bell 
V. Crosby, 4 A. R. 575. 

54. In assumpsit against partners, 
under the common counts, proof of a 
joint promise Js necessary, or proof of 
the p9,rtnership ; and it is not necessary 
to deny the partnership by plea in abate- 
ment. Findlay v. Stevenson, 3 S. 48. 

55. Where T. and W. declared as 
partners, trading under the firm of T. 
W. and Co., it AA^as held, that the words 
" and Co.," did not necessarily imply 
that there were other partners ; and that 
if there Avere, that matter must be plead- 
ed in abatement." Garner v. Tiffany, 
Minor, 167. 

(f) Variance between writ and declaration. 

56. A plea in abatement, because of a 
variance between the writ and declara- 
tion-f is good, if the prayer is "of the 
writ and declaration, and that the same 
may be quashed." Bonneau v. Dickin- 
son, 12 A. R. 475. (GOLDTHAVAITE, J,, 
dissenting.) 

57. Where the writ is at the suit of 
the " Branch Bank at Mobile," and the 
declaration in the name of the " Branch 
of the Bank of the State of Alabama at 
Mobile," the variance is no ground of 
abatement ; for if the names are not 
substantially the same, the writ may be 
amended on motion, so as to make it 
conform to the declaration. Caldwell v. 
The Branch Bank at Mobile, 11 A. R. 549. 



ABATEMENT. 



58. Where suit is instituted by the 
plaintiif in a mistaken name, and the 
right name is carried into the declar^-^ 
tion, with an averment that the defend- 
ant was served witli process in the migr 
taken name, the variance between the 
writ and declaration can be pleaded in 
abatement; the defect is not curisd by 
tlie declaration. Beene v. TJif Caliaioha 
Bail-road C'o.,3 A. R. G61. ,, / 

59. A variance between the writ- and 
declaration, must be pleaded in abate- 
ment, or in a proper case, may be reach- 
ed upon the trial, by an objection to the 
testimony : The court is not bountl to. 
strike the declaration from the filp for 
this cause. T urner. y .' Broiun, ^ A. R. 
866. • 

- 60. Advantage can only be taken of 
a variance betAveen a writ and ■ declaiai- 
tion, by plea, in abatement. • Findlay v.» 
Pnm, 9 P. 195. ... 

61. A variance. betAveen the Avrit and 
declaration, cannot be reached by gene^; 
ral demurrer, but must be brought ta the 
view of the court, by plea in abatement. 
Ourry v. Paine, 3 A. R. 154. Palmer, 

v. Lesne, 3 A. R. 741. ' 

62. If it be allow-able for a defendant 
to avail himself of a variance between 
the indorsement~on. the writ, and the 
declaration, semble,t\iQ objectibn must 
be brought to the vicAv of the court in 
some other manner, than by.a motioh 
to strike a count from the declaration. 
Kirkpatrick v. Bethany, 1 A. R. 201-. 

63. A variance between the indorse- 
ment on the writ, and the declaration, 
cannot be pleaded in al)atement. - Sexton 
v. Pone, 7 A. R. 829. Wharton v. Pranks, 
9 P. 232. • 

64. But if the plaintiif should declare 
upon a cause of action, entirely differ- 
ent from the indorsement upon the writ, 
the court would, on motion, refuse to 
permit the declaration to be filed. Sex- 
ton V. Pone, 7 A. R. 829. 

65. A variance, however, between the 
cause of action indorsed qn the Avrit, and 
the declaration, must be total, and 
amount to a radical departure, to au- 
thorize the court to reject the declara- 
tion. Tenison v. Martini, 13 A. R. 21. 

(g) Pendency of another action, 

66. A pleaf in abatement, that an at- 
tachment is pending for the same debt, 
is bad, unless it alledges, that the at- 



tachinent was levied. Peynolds v. Mc- 
Clure, 13 A. R. 159. 

67. An attachment sued out, and lev- 
ied, returnable to the circuit court, is 
the c&mmencement of a suit, and may 
be pleaded in abatement, to another suit, 
upon the same debt, though after the 
levy, the' papCJrs are destroyed by the 
plaintiff, , vjpon the supposition, that it 
was informaily, or 'irregularly sued out. 
Dean y. Massey^l A. R.,601. 

68, A plea,, that the plaintiff implead- 
ed the defendant for t^re same causes of 
afetionin-a justice's court-,-and there ob- 
tained a judgment^ against him, which 
he- appealed to the county court, where 
the appeal was pending at the return 
term of the writ, is a good plea in abate- 
ment. .Bosivell V. Tnnnell, 10 A. R. 
.0,58-. 

' 69. JJijder a plea, that another action 
is pending for the same cause, a writ 
purporting to be' for the same cause, is 
admissible iil evidence, though return- 
ed "jiot found." Gaston v. Pajrso7is, 8 
P. 469.- 

70. A 'pending attachment for the 
same d.ebt,; cannot be pleaded in abate- 
ment of the writ, but to suspend further 
proceedings .in the cause, for the pre- 
sent: The praj-er of the plea is, not 
that the Avrit be quashed, but " whether 
the court will compel further answer." 
Crawford r. ;Slade, 9 A. R. 887. 

7^1. The same object may be accom- 
plished by a suggestion to the court, of 
the pendencj' of such suit, which will 
thereupon suspend further proceedings, 
until the attachment suit is determined ; 
this suggestion mfiy be made after judg- 
ment, and the court will direct a stay of 
execution during the pendency of the at- 
tachment suit. . lb. 

72. A pending attachment may be 
pleaded in abatement by the garnishee, 
Avhen, sued for the same debt by the ori- 
ginal creditor. Crauford v. Cluie, 7 A. 
R. 157. _ • ' 

73. The plea must contain averments 
of all the facts necessary to give the 
court in which the attachment is pend- 
ing, jurisdiction ; and must show, whe- 
ther the whole, or. what portion of the 
de}>t has been attached : A plea in abate- 
ment, therefore, which sets forth, that 
garnishee jM'Ocess had issued upon a 
jvidgment, but which does not aver the 
amount recovered by such judgment, 
nor that the affidavit which the statute 



6 



ABATEMENT. 



requires had been made, is bad on gene- 
ral demurrer. lb. 

74. It would be the duty of the court 
in which such suit is brought, upon be- 
ing certified of a pending attachment 
for the same debt, to stay the proceed- 
ings until thb attachment suit is deter- 
mined ; and after judgment, if no plea 
had been interposed, or' an ineifoctual 
effoi't had been mtide to plead the fact in 
abatement, to stay the execution until 
the attachment was determined,- upon a 
satisfactory indemnity being executed 
by the gaxnishee. lb. . , * 

75. A plea averring the existence of a 
former suit for the same delit, which had 
been dismissed by the plaintiff, is bad. 
£uttock V. Perri/,2 S. & P. 319. \ . 

(h) Cause of action not accrued^ * . -^ 

76. Where a defendant pleads in bar, 
he cannot object on the trial before a 
jury, that the writ bears test before the 
cause of action accrued: Such an ob- 
jection is good on plea in abatement. 
Jones V. Ya)'horougli, 2 A.-,E. 524.' (In 
conflict with Ranclolpli v. Goolc, 2- P. "286, 
and B'Olney v. Long, 9 A. _R. 754.) 

77. That suit is brought on a cause of 
action, before the same is past due, is 
available on error, even after appear- 
ance, and judgment by nil dieit. Ean- 
dolpJi V. Cook, 2 P. 286. (In oonflrct with 
Jokes Y. Yarborough, STA, R-: 524.) 

78. The defendant may prove under 
the general issue, in assumpsit, that.the 
action was commenced 'before' the' debt 
was dvie. Rainey v. Long, 9 A. R. 754. 
(Overruling, in effect, Jones v. Yarho- 
.rougli, 2 A, R. 524, on this point.) 

79. In an action by an- indorsee, 
against an indorser^ the latter need not 
plead in abatement, .tJiat the suit was 
commenced before an execution against 
the maker of the indorsed note, was re- 
turned ; the general issue throws upon 
the plaintiff the burden of proving that 
fact, and the law makes in a prerequi- 
■site to his right to recover. Woodward v. 
Harbin, 4 A. R. 535. • " m 

80. A plea, averring that an 'obliga- 
tion sued on, was given in consideration 
of the performance of services not yet 
performed, but showing tiiat the servi- 
ces were in progress of performance, is 
a plea in abatement ; and not being ve- 
irified by affidavit, is demurrable. Coal- 
terx.Ben,2S. & P. 358. 



81. A plea in abatement, that the a(^ 
tion was l^rought before the debt was 
due, is sufficiently verified by the in- 
dorsement on the writ. Collier y, Craw- 
ford; Minor, 100. ' , ." \ 

82. The jQal estate of an intestate was 
sold by commissioners, under the order 
'of an orphans' court, and a note taken 
from the purchaser ; at the same time it 
was agreed -between the commissioners 
and the pprchaser, that the note should' 
be paid qnly in proportion to the inter- 
est it should ■aft.ervrard appe,ar the intes- 
tate had in the land : ■• A .suit Was brought 
in ecpiity to ascertain the intestate's in- 
terest ; during its, pendency, an action 
was brqvight on the note, and these facts 
were pleaded in bar -. Held, that the plea 
was bad, and that if the matter was 
'a.vailable as a ■ defense, it should have 
been pleaded in abatement. MbKenzie 
V. McCoU,5A. R.'516. 

83. Where an indorser stipulated, that 
suit should not be brought against the 
maker within three months, but the suit 
was brought within two months, it was 
held in air action against the indorser, 
that if that matter wag- available as a 
defense, it should have been pleaded in 
abatement. Serndoji.Y. Garrison, 5 A. 
R. 380.; 

(i) Insolvency 'of Estate, by Executors, and 
Administrators. . 

■84. A plea by ah administrator, that 
'the estate has lieen declared insolvent, 
is bad, unless, it •discloses, that the re- 
port of insolvency was made by him, and 
that he still continues the representa- 
tion of the estate. Cameron v. Clarke, 
11 A. R. 259. 

85.' An executor or administrator, may 
report an estate insolvent, when the per- 
sonal property is insufficient to pay all 
the debts ; and when "sued, he may plead 
that fact in abatement. Woods v. Mc- 
Cann, 3 A. R. 61. (-Changed by sta- 
tute. Clay's Kg. 195, sec. 13.) 

86. An administrator may plead the 
insolvency of the estate committed to his 
charge, in abatement of a suit commenc- 
ed by capias in the lifetime of the intes- 
tate, in which an attachment also was 
si\ed Dut as an auxiliary process, and lev- 
ied on real and personal estate ; and 
the lien of such attachment is only an 
inchoate right, dependent on the judg- 
ment, which not being allowed, the lien 



ABATEMENT. 



7 



IS gone. Hale\. Cummings, B A. E. 
398. 

87. It is a good defense to an action, 
against an administrator, that the intes- 

■ tate's estate has been i-epresented insolT 
vent during its pendency, unless it be to 
recover the expens^es Of the last sickness, 
and funeral of the deceased ; and such 
matter may be well ■•plea.ded jniis darKein 
continucuice. Fennetl.r.^ Patricks aclmWr, 
3 S. & P. 244. Colbert Y.. CfiancUer, Mi- 
nor, 254. (Changed by statute." Clay's 
Dig. 195, sec. 13.) 

, 88. A replication to such plea, that 
th« claim sued on was in part for svich 
expenses, (the fact not being alledged in 
the declaration,) without alledging a 
claim sufficient to give the court juris- 
diction, is bad. Fennelly.Patnick'sadm'r, 
3 S. & P. 244. 

. 89. The insolvency of an estate, must 
be pleaded specially by the administra- 
tor, in contesting claims against the de- 
cedent. JIumphreysY. Morrvio, 9 P. 283. 



II. How TO TAKE ADYANTAGB OF MAT- 
TERS OF ABATEMENT. 

(a) By plea itt abatement. 

90. Defects in the bond and affidavit 
made on suing out an attachment, must 
be pleaded in abatement ; otherwise they 
are not availaljle on error. Burt v. ' Pa- 
rish, 9 A. E. 211. , 

91.^ The want of a bond and affidavit, 
must be- pleaded in abatement, even 
though the attachment is taken out 
against a nod-resident. Jones v. Pope, 
6 A. E. 154. 

92. Where an attachment is improp- 
erly sued out, in favor of a resident cit- 
izen, against the property of a deceased 
non-resident debtor, it must be abated 
by plea, and cannot be taken advantage 
of after judgment by default. Loomis v. 
^ZZe?i, 7 A. E. 706. 

93. An objection that the affidavit on 
which an attachment issues, has not 
been verified and subscribed, or that the 
justice before whom it purports to have 
been made, is not such in fact, mus"t be 
presented by plea in abatement. Loiory 
V. Stowe, 7 P. 483. 

94. A non-resident, who commences 
a suit by attachment, against a non- 



resident, need not state the fact of his 
own non-residence in the affidavit ; if he 
i^ not a non-resident, and no sufficient 
bond or affidavit is made, the attach- 
ment may be abated hy plea. Jackson 
v; 'Stanley, 2 A. E. 326. -Calhoun v. Coz- 
'zens,'^\A.B.Al. 

95. ..The bond in such a case, need 
not show that the sureties reside within 
the. state ; if such is not the fact, the pro- 
ceedings may be abated. Jacksoji r. 
Stanley, 2 A. E. 326. 

96. An attachment. Issued under the 
act of 1637, as auxiliary to a pending 
sviit, may be defeated by a plea in abate- 
ment, if no such suit is pending. Houn- 
shell V. Phares, 1 A. E. 580.. 

, 97. In an attaclijiient by one non-resi- 
dent against another, the affidavit should 
show, that the defendant has not suffi- 
cie^at propterty within the state of his 
residence to satisfy the debt, within the 
belief, as well as within the knowledge 
of the pfergon making the- affidavit ; and 
the omission to show this, is sufficient, if 
pleaded, to abate the attachment. Cobb 
V. Force, 6- A. -E. 468. Cobb v. Miller, 9 
A.E. 499,. 

^98. Whethel'' in any ease, where the 
process is by attachment, advantage of 
defects in it can be taken, if no plea in 
abatement has been interposed, qucere. 
Thompson y. Hair, 7 A.'E. 313. 

99. A defendant cannot, by plea in 
abatement, contest the truth of the facts 
charged as the ground of the attach- 
ment, where the' affida-frit and proceed- 
ings on their face appear to be regular 
and sufficient. , Mkldlebrook v. Ames, 5 
S. &P. 158. (Overruling BroionY. Mas- 
sey, 3 S. 226, and in accordance with the 
statute of 1837, Clay's Dig. 61, see. 32.) 

100. To an original attachtoent, the 
defendant may plead in abatement, tra- 
versing the grounds .of complaint relied 
on for its issuance. Broimi v. Massey, 3 
S. 226. (Overruled in Middlebrook v. 
Ames, 5 S. & P. 158, and changed by 
statute, Clay's Dig. 61, sec. 32.) 

101. A writ to which the sheriff is a^ 
partj^, should lae directed to the coroner; 
and if it be directed to any sheriff of the 
state, although it be executed by the cor- 
oner, it is irregular, and may be abated 
on the plea of the defendant. Nabors y. 
Thomason,! A. E. 590. 

102. The want of authority to execute 
process, is no ground for quashing it; 
but is matter for a plea in abatement- 



ABATEMENT. 



Roberts v. JBeeson, 4 P. 164. Kabors v. 
Thomason, 1 A. R. 590. 

103. It is a good plea in abatement, 
that the sheriiFwho executes the process, 
is, beneficially, the plaintiiFin the action. 
MitclieU\. Allen, 2 S. &. P. 247. 

104. Where process is directed to, and 
executed by the coroner, which does not 
affirm the incompetency of the sheriif to 
act, its ii'regularity cannot be objected to 
on error, after a judgment by default; it 
should have been pleaded in abatement. 
■Smoyery. Price, 6 A. R. 285-, ' 

105. A defect in a writ must be taken 
advantage of liy plea in abatement. 
Jordan v. Bell, 8 P. 53. Findlay v. PrivHt, 
9 P. 195. Adamson v. Parker, 3 A. R. 727. 

lOG. Where a writ issues in any other 
mode than that prescribed by law, it' 
must be abated on the plea of the defend- 
ant. Adamson v. Parker, 3 A..R. 727. 
Naboi's V. Thomason, 1 A'. R. 590. • Jor- 
dan V. Bell, 8 P. 53. 

107. A writ returnable at a time to 
which it could not legally be made re- 
turnable, may be abated by plea. Jor- 
dan y. Bell, 8 P. 53. 

108. The act of 1807, provides., that 
where a wi"it is issued five days before 
court, it is regularly returnable to the 
next term, and that it may be abated on 
the plea of the defendant, if returnable 
at any other time. Findley v. Rltclde, 8 
P. 452. 

109. An objection, that the initial of 
the first name of a defendant, is nxerely 
set out, and not his name at length, can 
only be made available by plea in abate- 
ment, disclosing defendant's true name. 
Candey v. Moody, 7 P. 443. . 

110. The want of an indorsement of 
the cause of action on a writ, may prop- 
erly be pleaded in abatement. Johnson 
V. Perry, 4 S. & P. 45. (Saffold, J., dis- 
senting.) 

111. But this rule does not ap]dy to 
the writ of attachment. Loiury v. Sto1.ce, 
7 P. 483. 

112. A plea in abatement, that the 
writ was executed on the defendant, 
while he wa_s returning from a militia 
muster, is good. Greening v. Sheffield, 
Minor, 276. * 

113. Advantage can only be taken of 
a variance l)etween a writ and declara- 
tion, by plea in abatement. Findlai/ v. 
Pruitf, 9 P. 195. Cnrry v. Paine, 3 A. 
K. 154. Palmer v. I^esne, 3 A. R. 741. 

114. A variance between the writ and 



declaration, must be pleaded in abate- 
ment, or in a proper case, may be reach^ 
ed upon the trial, by an objection to, the 
testimony : The court is not bound to , 
strike the declaration from the file for thia 
cause; Turner Y. Brown, 9 A. R. 866. 

115.- Where sviit is instituted by the 
plaintiff in a mistaken name, and the 
right name is carried into the declara- 
tion, with an averment that the defend- 
ant was served with process in the mis- 
taken name, the variance between the , 
writ and declaration can be pleaded in 
abatement ; the defect is not cured by, 
the declaration. Beene v. The Cahaioba 
Bail-road Co., 3 A. R. 661. 
. 116. Where a married woman sues 
alone, in a case where she might join in 
the action with her husband, an objec- 
tion to her right to do so, can only be 
made by plea in abatement ; if she has 
no legal right whatever, she may be 
nonsuited. James v. Stewart, 9 A.R. 855. 

117. When there are heirs at law not 
joined in an action of trespass to try ti- 
tle, the objection, if good at all; can only 
be taken by plea in abatement. Bonner 
Y. Greenlee's heirs, 6 A. R. 411. 

118. When partners sue on a note 
payable. tO' the firm, proof of the partner- 
ship as alledged, cannot be required, 
unless it is denied by plea in abatement. 
Bellx. Crosby, 4 A.,'R. 575. 

119. Where T.- and W. declared as 
partners, trading under the firm of T. 
W. and Co., it was held, that the words 
" aad Co.," did not necessarily imply 
that'ihere were other partners ; and that 
if tftere were, that matter must be 
pleaded in abatement.. Garner y. Tiffa- 
ny, Minor, 167. 

120. An executor or administrator 
may report an estate insolvent, when the 
personal property is insufficient to pay 
all the debts ; and when sued, he may 
plead that matter in abatement. Woods 
Y.McCann, 3 A. R.61. FcnnellY. Paf-^ 
rick's adm'r, 3 S. & P. 244. Colberji-^f'. 
CAanc^fer, Minor, 254. (Changed by'jS-tat- , 
ute. Clay's Dig. 195, sec. 13.). -^ - 

121. The insolvency of an estate, must '^■. 
be pleaded specially by the administra- ''- 
tor, in contesting claims against the de- 
cedent. Humphreys v. Morroic, 9 P. 283. 

(b) By Plea, cither in abatement or bar. 

122. When a suit is brought in the 
name of one person for the use of an- 



ABATEMENT. 



9 



other, the defendant may plead either in 
bar or abatement, that the nominal 
plaintiff Tvas dead at the commencement 
of the suit. Jenhs v. Echvards, 6 A. R. 
143. Tail V. Froio, 8 A. R. 543. 

123. "When a foreign administrator 
sues a debtor of his intestate here, the 
debtor may plead either in abatement, or 
bar, that he has been appointed admin- 
istrator of the deceased, in this state. 
Kennedy v. Kennedi/'s adm'r, 8 A. R. 391, 
(Declaring Cloud w GoligJitli/'sadm'r, 5 
A. R. 654, to be a dictum on this point.) 

124. When letters testamentary have 
been granted in the state where a testa- 
tor died, an executor of the same will, 
who obtains letters in a different state, 
cannot sue in this ; if he does, his inca- 
pacity may be pleaded, either in bar or 
abatement. Harrison v. Mahorner, 14A. 
Pt. 829. 



(c) By Motion ; and herein of Motions to 
quash. 

125. The only mode by which advan- 
tage can be claimed, of the omission to 
serve a copy of the writ on the defend- 
ant, is by a motion to set aside the ser- 
vice for irregularity, which the court in 
the exercise of a sound discretion, can' 
grant, if it be necessary, to prevent in- 
jury to the defendant^ or to advance the 
justice of the cause. Maverick v. Duffee, 
1 A. R. 433. 

126. An attachment is within the law 
prohibiting process to be served on Sun- 
day ; but when an attachment is served 
on Sunday, its service cannot be abated 
by plea: The proper course, is to move 
the court to set aside the process for ir- 
regularity in its service. Cotton v. Huey, 
4A. R. 56. 

127. An attachment will not be quash- 
ed on account of a defective bond, unless 
the plaintiff is unwilling to execute a 
good bond. Scott v. Macy, 3 A. R. 250. 
P. Sf M. Bank v. Andreus, 8 P. 404. Loioe 
V. Derrick, 9 P. 415. Lowry v. Stowe, 7 
P. 483. AlfordY. Johnson, 9 P. 320. 

128. But if the plaintiff decline to sub- 
stitute a new and perfect bond, when re- 
quired by the court to do so, the attach- 
ment may be quashed. Alford v. John- 
son, 9 P. 320. Loiory v. Stowe, 7 P. 483. 
P. & M. Bank v. Andreios, 8 P. 404. 

129. An attachment issued by a jus- 
tice of the peace, returnable into' the cir- 

1—2 



cuit or county court, of a different coun^ 
ty from that for which he is appointed, 
may properly be quashed. Caldwell v. 
Meador, 4 A. R. 755. 

130. A party proceeding by attach- 
ment, mtist confine himself in his afiida- 
vit, to some one of the distinct grounds 
on which the process is authorized by 
statute to issue; and if the affidavit 
states several grovmds, in the disjunc- 
tive, the process will be quashed. Johii- 
sony. Hale, 3 S. & P. 331. 

131. A motion to dissolve an attach- 
ment, on the ground that the cause of ac- 
tion does not warrant that process, can 
properly be entertained when a new, or 
amended declaration is filed, setting out 
a cause of action not within the statute, 
if the motion is made within the time 
for pleading in abatement. Hazard v. 
Jordan, 12 A. R. 180. Jordan \. Hazard, 
lOA. R. 221. 

132. A demurrer to the declaration, 
does not reach the objection, that the 
cause of action is one for which an at- 
tachment will not lie : the proper mode 
of presenting that question, is by a rule 
on the plaintiff', to show cause why his 
attachment should not be dissolved. 
Beckivith v. Baldwin, 12 A. R. 720. 

133. An attachment ought not to be 
quashed, because the articles of personal 
property levied on, are not specifically 
described in the sheriff's return. Green 
V. Pyne, 1 A. R. 235. 

134. An attachment materially vari- 
ant from the affidavit, must be quashed. 
Woodley v. Shirley, Minor, 14. (See Al- 
ford Y.Johnson, 9 P. 320.) 

135. An attachment, issued under the 
act of 1837, as auxiliary to a pending 
suit, cannot be quashed, because it does 
not alledge the existence of a previous 
suit. Hounshell v. Phares, 1 A. R. 580. 

136. Upon a motion to quash an at- 
tachment, no intendment can be made 
prejudicial to the plaintiff ; but every 
thing stated in the proceedings must be 
taken as true. . Calhoun v. Cozzens, 3 A. 
R. 21. 

137. The refusal to quash an attach- 
ment, is not revisable on error. Ellison 
V. Mounts, 12 A. R. 472. Massey v 
Walker, 8 A. R. 167. Reynolds v. Bell 3 
A. R. 57. 

138. A motion to quash an attach- 
ment, however, may properly be enter- 
tained, and though addressed to the dis- 
cretion of the court, if improperly grant- 



10 



ABATEMENT. 



ed, is reviSEtble on error. Reynolds v. Bell, 
3 A. R. 57. 

139. A refusal of a court to quash a 
"writ, to -which a sheriff is a party, and 
•which is not directed to the coroner, Avill 
not be revised on error. Kahors v. Tlio- 
mason, 1 A. R. 590. 

140. If the proceedings before a justice 
of the peace are regular, and the suit is 
removed to the county or circuit court, 
after judgment, they ought not to be 
quashed, because the plaintiiF declare'? 
in detinue or trover : The proi)er course 
is, to require the plaintiff to file a state- 
ment of his cause of action when any 
question as to its sufficiency, or the juris- 
diction of the justice of the peace, can be 
raised on demurrer. Williams v. Hlnton, 
1 A. R. 297. 



III. "Whex, axd bt whom the or.JEC- 

TIOX MUST BE TAKEN, AND WHAT 
"WILL BE A WAIVER OF IT. 

(a) Whcnjjileas in aoaUment must bejiled. 

141. A plea in abatement, filed within 
three days next after the filing of the de- 
claration, is within time, if the trial is 
not thereby delayed ; and it is not error 
to refuse to strike it from the file. Corn- 
stock V. iVeel; 7 A. R. 528. 

142. Where the plaintiff obtains until 
the next term to amend his declaration, 
a plea in abatement need not be filed 
until then ; but if no time is allowed, 
the presumption in this court will be, 
that the amendment must be made in- 
staiiter, and unless the contrary is shown, 
the amendment will be presumed to have 
been so made, and a plea in abatement 
filed at the nest term, properly rejected. 
Sturdevant v. Gains, 5 A. R. 435. 

143. A plea in abatement entitled of 
the same term with the declaration, but 
verified l)yan affidavit dated after the 
term, and 'filed before default claimed, is 
in time. Ellis v. Hickman, Minor, 394. 

144. Although the twelfth rule for the 
regulation of practice in the circuit and 
county courts, directs, that "no plea in 
abatement shall be received, if objected 
to, unless by the indorsement of the 
clerk, it appears to have been filed vrithin 
the time allowed for pleading," it is 
competent for the court, under some cir- 
cumstances, to allow such a plea to come 



in at a later period. Cohh v. Miller, 9 A^ 
R. 499. 

J45. The receiving of a plea in abate- 
ment, after the time for filing such a 
plea has passed, is matter of discretion 
in the court below, and cannot be re- 
viewed in this court. Massey v. Steele's 
adm'r, 11 A. R. 340. 

146. Objections raised to the time of 
filing a plea in abatement, founded on 
the rules of court, must be made in the 
court below ; otherwise the question can- 
not be revised in this court. M'Cutchen 
x.M'jCiddien,^ V.lbl. 

147. A plea in abatement cannot be 
allowed, after the filing of a plea in bar. 
Coalter v. Bell, 2 S. & P. 358. 

148. If a plea in abatement, and one 
in bar, be filed at the same time, the lat- 
ter supersedes the former; but if the 
plaintifi' rejilies, he admits that the for- 
mer is regularly filed. Cleveland \V. 
Chandler, 3 S. 489. 

149. A plea to a defective writ, to 
be available, must appear to have been 
submitted at the proper time, in the pi"o- 
per place, and in the mode prescribed by 
the statute. Nahor v. Nahors, 2 P. 162. 

150. After' an appeal from a justice, 
no plea in abatement can be interposed 
to disclose a defect in the affidavit for the 
attachment, which was the process in the 
suit : This is a defect in the proceedings 
of the justice, and is cured by the sta- 
tute. Cloiigh V. Johnson, 9 A. R. 425. 

151. A demurrer to a plea in abate- 
ment, does not reach the question, whe- 
ther it was filed at the time prescribed 
by rule, or the statute. Cohh v. Miller, 
9 A. R. 499. Callison v. Lemons, 2 P. 
145. 

■■■ 152. After a judgment of respondeas 
ouster, upon a demurrer to a plea in 
abatement, no other plea in abatement 
can be filed. Mouclc v. Scott, 8 P. 169 

(b) Who may plead, in ahaiement, or move 
to quash. 

153. Bail may plead in abatement of 
the suit against their principal ; but the 
plea must alledge the existence of the 
facts which authorize them, as bail, to 
defend the suit. Deforest v. Elkins, 2 A. 
R.50. 

154. A privy in interest in attach- 
ment, may point out defects in the pro- 
ceedings, and submit a motion to quash. 
P. d- M. Bank v. Andreics, 8 P. 404. 



ABATEMENT. 



11 



155. Semble: The practice of per- 
snitting persons, as amiei cnrke, to move 
to quash attachments, has prevailed too 
long to be held irregular. lb. 

156. A garnishee cannot take advan- 
tage of an irregularity in the proceedings 
between parties to an attachment. Smith 
V. Chapman, 6 P. 365. Thompson v. 
Allen, 4 S. & P. 184. Stebhuis v. Fitch, 
IS. 180.^ 

157. Several pleas in abatement, may 
be pleaded to the same action. Mitchell 
V. Allen, 2 S. & P. 247. 

(c) What loill he a waiver of matters in 
abatement, 

158. The filing of a plea of the general 
issue, is a waiver of a plea in abatement. 
Wilson V. Oliver, 1 S. 46. Bohertson v. 
Lea, 1 S. 141. 

, 159. Where a party pleads in abate- 
ment, and after the plea is overruled, 
pleads to the merits, he cannot insist on 
the same matter in arrest of judgment. 
Davis v. Dickson, 2 S. 370. ifade v. Kel- 
ly, 2 S. 443. Parks v. Greening, Minor, 
178. (Changed bj'' statute. Clay's Dig. 
334, sec. 121.) 

160. Where a plea in abatement, and 
a demurrer to it, appear in the record, 
and afterward an issue on the plea of 
not guilty, the plea in abatement will 
be considered as a nullity. Bohertson 
Lea, 1 S. 141. 

161. A plea in abatement cannot be 
allowed, after the filing of a plea in bar. 
Coalter v. Bell, 2 S. & P. 358. 

162. If a plea in abatement, and one 
in bar, be filed at the same time, the lat- 
ter supersedes the former; but if the 
plaintiff replies, he impliedly admits that 
the plea in abatement is regularly filed. 
Cleveland v. Chandler, 3 S. 489. 

163. Neither a mere entry or state- 
ment of the names of the parties in a 
cause, and of the counsel prosecuting 
and defending it, which does not show 
by whom it was made, and is not the en- 
try of appearance required by the rules 
of court, nor the giving of a replevin 
bond, in an action of detinue, nor the 
filing of a plea in abatement to the writ, 
is such an appearance as waives the 
right to object to an abatable defect in 
the writ. Nabors v. Nahors, 2 P. 162. 

164. The proper course for a plaintiff 
±0 pursue, where the defendant pleads at 
the same time in abatement, and in bar, 



is to move to strike out the plea in abate- 
ment, or to treat it as a nullity. Hart 
V. TurJc, 15 A. R. 675. 



IV. FORII AND REQUISITES OF PlEA, AXD 

JUDGMENT THEREON. 

(a) Form and reqidsites of Plea. 

165. A plea in abatement to an attach- 
ment, that it was issued without affida- 
vit, and that the wi-it, though properly 
addressed, commands the plaintiff to 
attach the defendant's estate, is bad, 
because it unites two distinct matters of 
abatement ; and might be struck out on 
motion. The defendant, therefore, is not 
prejudiced by the refusal of the covirt, to 
compel the plaintiff to join issue upon it. 
Ellison Y. Mounts, 12 A. R. 472. 

166. It is ii-regular to join two dis- 
tinct matters of abatement in the same 
plea ; and a demurrer will be sustained 
for that cause. Cobb v. Miller, 9 A. R. 
499. Cobb V. Force, 6 A. R. 468. Ccdd^ 
well V. Branch Bank at Mobile, 11 A. R. 
548. Fllison v. 3Ioimts, 12 A. R. 472. 

167. In pleas in abatement, matters 
of form are regarded as substance ; there- 
fore, where a plea to the jurisdiction, 
that the defendant was a resident free- 
holder of another county, contained a 
verification and concluded to the coun- 
try, it was held bad on demurrer. Elmes 

V. McKenzie, 5 A. R. 617. 

168. A plea in abatement to a writ, 
which is taken in short by consent of 
counsel, must contain all the necessary 
matters of substance ; matters of form 
only are waived. Findlay v. Pruitt, 9 
P. 195. 

169. It is essential to the validity of a 
plea in abatement to a writ, that the writ 
should be set out on oyer ; if this is not 
done, the plea is bad on demurrer. lb. 

170. A plea in abatement to a writ, 
which is taken in short by consent, is 
bad on demurrer., if it does not set out 
the writ on oyer. lb. 

171. A plea which begins in bar, 
though it contain matter in abatement, 
and conclude in abatement, will be con- 
sidered a plea in bar, and final judg- 
ment will bo given for the plaintiff, on a 
demurrer thereto. Casey v. Cleveland, 7 
P. 445. 

172. A plea, commencing witli matter 



12 



ABATEMENT. 



of abatement, and concluding in bar, is 
defective, and bad on demurrer. Rogers 
V. Smiley, 2 P. 249. Banks v. Leivis, 4 
A. R. 599. 

173. A plea in abatement of an attach- 
ment, because of a defective affidavit, 
should set out the affidavit on oyer. Banks 
V. Leicis, 4 A. R. 599. 

174. A plea in abatement of a vrrit, 
that the defendant is a resident and free- 
holder of another county, need not al- 
ledge that he continues to be so up to 
the time of pleading ; a change of resi- 
dence after the suit is brought, will aot 
deprive him of the benefit of the plea. 
Potvers y. Bri/anfs adm'r, 7 P. 9. 

175. The words "resident citizen," in 
such a plea, are as forcible to indicate a 
fixed home, as the Avords "permanent 
residence," which are the words employ- 
ed in the statute, and sufficiently accord 
with the intent and meaning of the sta- 
tute, lb. 

176. A plea in abatement, that pro- 
cess was served out of the county of B, 
in the Cherokee nation, is bad, without 
the additional averment, that the defend- 
ant was not a resident of the county of B ; 
for by the act of 1818, process was au- 
thorized to be served in the Indian lands, 
upon any resident of the county from 
which the writ issued. Callisou v. Le- 
mons, 2 P. 145 . 

177. When a plea in abatement is not 
signed by counsel, this is not a sufficient 
reason for setting it aside at a subsequent 
term; nor is the objection available on 
demurrer. Deforest v. Elkins, 2 A. R. 50. 

178. Whenever the facts of a plea in 
abatement, do not appear in the record, 
the plea must be verified by affidavit. 
Coalter v. Bell, 2 S. &_P. 358. 

179. A plea, averring that an obliga- 
tion sued on, was given in consideration 
of the performance of services, not yet 
performed, but showing that the services 
were in progress of performance, is a 
plea in abatement ; and not being verifi- 
ed by affidavit, is demurrable. lb. 

180. A plea in abatement, that the ac- 
tion was brought before the debt was 
due, is sufficiently verified by the indorse- 
ment on the writ. Collier v. Crawford, 
Minor, 100. 

181. The act of 1829, whichimposes a 
penalty of forty dollars, on any justice of 
the peace, who shall perform any official 
act after his removal from the l^eat in 
which he was elected, is modified by the 



act of 1840, as it respects justices elect- 
ed for the city of Mobile ; the latter act 
authorizes justices of the .peace elected 
within the city, to i-eside, hold their of- 
fices, and transact official business in 
any beat within the same ; consequent- 
ly, a plea in abatement, which alledges 
that a recognizance was taken by a jus- 
tice of the peace in the city of Mobile, 
after his removal from the beat for A^hich 
he was elected, should negative his elec- 
tion in one of the beats of the city. Poio- 
ers V. The Stale, 4 A. R. 531. 

182. It is not essential that a plea in 
abatement should be verified by the oath 
of the defendant, or that it should be 
signed hj him ; its truth may be shown 
by the affidavit of another person, and it 
may be signed by counsel. Prim v. Da- 
vis, 2 A. R. 24. 

183. Formal defects in pleas in abate- 
ment, are reached by general demurrer. 
The statute abolishing special demur- 
rers, has no application to such pleas. 
Early. Turk, 15 A. R. 675. 

184. A plea in abatement must be ve- 
rified by affidavit, where the facts aver- 
red, as the gravamen of the plea, do not 
appear on the face of the record, and if 
not so verified, a demurrer to it should 
be sustained. lb. 

(b) Judgment thereon. 

185. In practice, no formal judgment 
of respondeas ouster is entered, upon sus- 
taining a demurrer to a plea in abate- 
ment : The sustaining of the demurrer, 
is entered of record, and if the defend- 
ant wishes to plead over, he is permitted 
to do so. Massey v. Walker, 8 A. R. 167. 

186. When judgment is rendered for 
the defendant, on a demurrer to a jDlea 
in abatement, it is error if the court re- 
fuse to permit the plaintiff to take issue 
on the facts of the plea. Chilton v. Har- 
hin, 6 A. R. 171. (Explaining M'Cufch- 
en Y.M'Cutchen,8I'. 151 ) 

187. Judgment for defendant on a 
plea in abatement, whether the issue on 
the plea is of fact or of law, is, that the 
writor bill be quashed ; and a, resjjondeas 
ouster is not, therefore, awarded. M'- 
Cutchen v. M'Culchen, 8 P. 151. 

188. Where the plaintiff prevails upon 
a demurrer to a plea in abatement, the 
judgment is not final, but that the de- 
fendant answer over. Craven^s v. Bry- 
anl, 3 A. R. 278. 



ABATEMENT. 



13 



V. Pleas in abatement in criminal 

CASES. 

189. A defendant indicted by the 
name of George Lyons, may plead in 
abatement, that his true name is George 
Lynes. Lynes v. The State, 5 P. 236. 

190. A defendant cannot plead in 
abatement of an indictment, that one of 
the jurors who preferred it, was incom- 
petent. Boi/ingturi v. The State, 2 P. 
100. (Overruled by The State v. Mid- 
dZeton, 5 P. 484.) 

191. A person against whom an in- 
dictment is preferred, may plead in 
abatement, that one of the jurors who 
found the bill, was incompetent. The 
State V. Middleton, 5 P. 484.' The State 
V. WUliams, 5 P. 130. 

192. It is a good plea in abatement to 
an indictment, that one of the jurors 
who found it, was not a freeholder, or 
householder, at the time the listof jvi- 
rors was returned. The State v. Mid- 
dleton, 5 P. 484. 

193. A plea in abatement, that one 
of the grand jury who fovmd an indict- 
ment, was not a freeholder, or house- 
holder, at the time the grand jury weve 
impanneled, or at the time of an indict- 
ment found, is bad : The plea should 
aver, thatthe juror was not a freeholder, 
or householder, at the time his name 
was returned to the clerk, by the sher- 
iff, lb. The State v. Ligon, 7 P. 107. 

, 194. But if issue be taken on such a 
plea, the defect is waived. The State v. 
Ligon, 7 P. 167. 

195. A plea in abatement to the com- 
petency of a grand juror who found the 
bill, may properly conclude with a pray- 
er of judgment, that the indictment be 
quashed . The State v. Middleton, 5 P. 485 . 

196. It is not necessary that such a 
plea should be signed by counsel ; plead- 
ing it in person is most regular. lb. 

197. A plea in abatement which has 
the words " sworn to and subscribed in 
open court," indorsed upon it, signed 
by the party pleading, and attested by 
the clerk, is sufficiently verified, without 
a formal affidavit. lb. 

198. The question, whether a grand 
jury has been drawn, summoned, and 
impanneled, according to law, can only 
be considered under a plea in aVjatement. 
The State v. Greenivood, 5 P. 474. 

199. A defendant in a criminal case, 
cannot be compelled to select and rely 



upon one of several pleas in abatement, 
submitted by him : Though the statute 
authorizing a party to file more pleas 
than one, does not extend to criminal 
cases, yet the right exists at common 
law. lb. 

200. Upon an issue on a plea in 
abatement to the competency of the 
grand jury who found an indictment, the 
burden of proving the competency, lies 
upon the state ; the competency of the 
jury will not be presumed. Tlie State v. 
Ligon, 7 P. 107. 

201. Where an immaterial issue is 
made upon a plea in abatement to an 
indictment, and erroneously found for 
the state, this court Avill award a re- 
pleader, lb. 

202. The proper judgment when a 
plea in abatement to an indictment for 
a misdemeanor, is overruled on demur- 
rer, is, that the defendant answer over 
to the indictment. The State v. Allen, 
I A. Pv. 442. 

203. .When an issue of fact, is found 
in favor of the state, on a plea in abate- 
ment, the jury, or court, as the case 
may Avarrant, should assess the fine, or 
punishment, unless on other pleas of the 
same kind, the defendant is entitled to 
answer over, in consequence of their be- 
ing overruled on demurrer; in this 
event, an issue must be formed on the 
indictment. lb. 

204. Where at one term, a decision of 
the court is made on a demurrer to a 
plea in abatement to an indictment, a 
judge, at a subsequent term, has no an- 
thority to review the propriety of that 
decision, and yefer the question as novel 
and difficult. Lynes v. The State, 3 P. 
348. 

205. The permission, or refusal of 
leave to vfithdraw the general issue, in 
order to plead in abatement, or demur, is 
discretionar}' with the court, even in 
criminal cases. The State v. Williams, 
3 S. 454. 

206. When the matter of a plea in 
abatement, is the disqualification of a ju- 
ror, it must present the constitutional 
disqualification of conviction for bribe- 
ry, &c. &c : Matters which exempt in- 
dividuals from jury service, are not dis- 
qualifications Avhich Avill abate an in- 
dictment. The State v. Brooks, 9 A. R. 9. 

207. In pleas of abatement to the 
constitution of the grand jury, the great- 
est accuracy and precision are necessa- 



14 ACCORD AND SATISFACTION.— ACCOUNTS. 



ry, as two modes are provided by which 
a jury may be constituted; the plea, 
therefore, must negative that either mode 
-was pursued. lb. 10. 

208. In all pleas in abatement of in- 
dictments, it is essential that the facts 
should be stated, out of which the de- 
fense arises, or a negation of the facts 
which are presumed from the existence 
of a record. lb. 

209. Objections . to the grand jury 
m.ust be taken by plea in abatement, at 
the term at which the indictment is 
found. The State v. Clarissa, 11 A. E. 58. 



ACCORD AND SATISFACTION. 

1. The note of a stra-nger, received by 
the plaintitf, in satisfaction of a judg- 
ment, will, if paid, be a satisfaction, 
though it be of a less amount, than the 

judgment. Sanders \. The BraKic/i Bank 
at Decatur, 13 A. R. 353. 

2. A plea of accord and satisfaction, 
is not an admission of the cause of ac- 
tion, when the general issue is also plead- 
ed. Prince v. Fuckett, 12 A. R. 832. 

3. Accord and satisfaction, is a good 
plea to an action of debt, on a record 
from another state. Hardwiclc v. King, 
1 S. 312. 

4. A plea of accord and satisfaction, 
averring, that the plaintiff received in 
full satisfaction and discharge of the 
cause of action, a note, or writing obliga- 
tory of himself, payable t^o a third per- 
son or bearer, and stating the amount 
of the note under a vldelicit, is a good 
plea, although it does not state the date 
of the note, nor when payable. Dun- 
ham V. Eidgel, 2 S. & P. 402. 

5. The rescission of a contract, under 
seal, cannot be given in evidence imder 
the plea of accord and satisfaction. 
Barelli v. O'Connor, G A. R. 617. 

6. A mere acknowledgment of satis- 
faction, will not sustain the plea of ac- 
cord and satisfaction; there must be 
something valuable given. Loijan v. 
[Austin, 1 S. 476. 

7. If, pending a suit, the plaintiff ac- 
cepts an obligation from a third person, 
as an accord and satisfactiuu, and agrees 
to dismiss the suit, it uiav be pleaded in 
bar. Webster v. W;/ser,'l S. 184. 



8- An offer to compromise, which is 
not accepted, will not preclude relief in 
equity, although a partial payment may 
subsequently be made, by giving notes 
due from other persons. The question 
of accord and satisfaction is matter of 
defense, and it will not be inferred from 
the payment in this mode. Calloway v. 
McElroy, 3 A. R. 406. 



ACCOUNTS. 



I. Of Open and Book Accounts, and 
Accounts Stated. 

[a] Open and Book Accounts ; and here- 
in of the proof of them by the 
parties, and otherwise. 

{b) Of Accounts Stated. 

(c) Of Splitting Accounts. 

[d] Interest on Accounts. 

IL Accounts in Chancery. 



L Of Open and Book Accounts, and 
Accounts Stated. 

[a) Open and Booh Accounts; and here- 
in of the proof of them by the parties, 
and otherwise. 

1. An open account is one in which 
some term of the contract is not settled 
by the parties, whether the account con- 
sists of one item or many. Maury's 
adm'r v. Ilasoji's adm'r, 8 P. 230. Ca- 
ruthers v. Mardis' adni'rs, 3 A. R. 601. 
Sheppard v. Willdns, 1 A. R. 62. 

2. Thus, where five loads of corn were 
sold at the same time, and delivered, and 
there was no stipulation as to the price, 
it is an open account. Shep)pard v. 
WilJdns, 1 A. R. 62. 

, 3. Such an account is barred by the 
statute of limitations of three years. lb, 

4. xin admission of indebtedness, in a 
precise, ascertained sum, is not an open 
account, nor barred by the statute of limi- 
tations of three years. Drinkioater v. 
Holliday, 11 A. R. 134. Caruthers v. 
Mardis' aclm'rs, 3 A. R. 599. 

5. An account consisting of the price 
of a carriage, purchased and paid for by 



ACCOUNTS. 



15 



the plaintiff for the defendant, at his 
request, is not an open account, so as to 
"be barred by the statute of limitations of 
three years. CarutJiers v. Mardls' adm'rs, 
3 A, R. 599. _ ' 

6. A witness' certificate is not an open 
account, so as to be barred by the statute 
of limita,tions of three years. Carville 
V. Beijnolds, 9 A. R. 969. 

7. The statute of limitations "will not 
run, so as to take from a plaintiff, the 
benefit of a payment made to the defend- 
ant, there being mutual accounts be- 
tween them : The statute applies only 
to causes of action, and then only after 
the right to sue has accrued. Lucas v. 
Thorington's adm'r, 7 A. R. 605. 

8. The plaintiff and defendant were 
mutually indebted to each other upon 
accounts : The account of the former 
was stated at $1594 20, of the latter 
at $1102 50 : Both of the accounts 
were barred by the statute of limita- 
tions; on the plaintiff's the defendant 
made the following indorsement, Avhich 
was subscribed by him, viz : " I admit 
the correctness of the within account 
with the exception of the item for $520 
paid W. D. Bynum, upon an order pur- 
porting to be drawn by me, which I do 
not admit, March 31st 1838." The 
plaintiff made an admission on the de- 
fendant's account as follows : " The 
above account is correct, and I agree to 
allow it against my account on settle- 
ment." lield, that the indorsement by 
the defendant was not a conditional ad- 
mission that the excepted item was a 
proper charge, and a waiver of the stat- 
vite of limitations, upon the plaintiff's 
making proof of its correctness. Lucas 
V. Thorlnfftoii, 5 A. R. 504. 

9. Where issue is joined on the plea 
of the statute of limitations, the jury 
have nothing to do with the justice of 
the account, ^/law v. Tarbrouyh, 3 A. 
R. 588. 

10. The plaintiff may reply the statute 
of limitations to an account pleaded as a 
set-off, although the debt declared on, is 
liable to the same defense, which the 
defendant neglected to plead. Ih. 

11. The exception in the statute, in fa- 
. vor of dealings Ijetween merchant and 

merchant, must be relied on by a repli- 
cation to the plea. Ih. 

12. A promise by one of several exec- 
utors or administrators, will not take a 
case out of the statute of limitations. 



Carutlicrs v, 3Iai\Us' adm'rs, 3 A. R, 
599. 

13. One species of open accounts is, 
where there are running or current deal- 
ings between the parties, which are kept 
unclosed, with the expectation of further 
transactions : Such an accovmt is sub- 
ject to the statutory bar of three years, 

Goodivin V. Harrison, G A. R,. 438. 

14. Semble,— the mere form in which 
a party's account is stated, should not be 
allowed to prejudice his rights ; especi- 
ally where it appears to have been made 
out, without regard to mercantile form. 
Lvcas V. Tlior i iigtoii s adm'r, 7 A. R. 
605. 

15. Books of accounts kept by a de- 
ceased clerk, and other entries or mem- 
oranda, made in the course of business 
or duty, by any one who would at the 
time have been a competent witness to 
the fact which he registers, are admissi- 
ble evidence ; and where the book or 
memorandum in which the entry is 
made, is lost, a copy supported by the 
oath of the party who made it, is admis- 
sible. Bcttre V. Simjjson, 4 A. R. 305. 

16. It is competent to inquire, whether 
an account against a party was not 
charged to him by his directions, and 
whether it is correct ; and it is allowable 
for the witness to answer, that it was 
copied from the defendant's books, and 
believed to be correct. Straiobridge v. 
-Spann, 8 A. R. 820. 

17. The facts, that a merchant and 
his clerks kept correct books, and charg- 
ed promptly all articles purchased at 
the store; that certain articles charged, 
were suited to the wants of the defend- 
ant's famil}-; that he traded with the 
plaintiffs, and was frequently at their 
store, are too remote to justify the ^^re- 
sumption, that a particular account is 
correct. Grant v. Cole, 8 A. R. 519. 

18. Entries upon a merchant's books, 
ma}^ be proved by evidence of- their be- 
ing in the handwriting of a deceased 
clerk. lb. Clemens v. Pafton, 9 P. 289. 

19. The "account," or statement of 
the items of charge, by the plaintiffs, is 
inadmissible as evidence to go to the 
jury. Grant v. Cole, 8 A. R. 519. 

20. A notice to one of the plaintiffs' 
clerks, not to furnish goods for defend- 
ant's fomily, without a vrritten order 
from himself, or his wife, is not notice 
to the principals of the house, or the 
other clerks. lb. 



16 



ACCOUNTS. 



21. To cliarge one for articles ■which 
he did not authorize to be purchased, 
but which came to the use of his family, 
it must appear that he knew the fact, 
and did not object, or olfer to return 
them. Tb. 

22. An af&davit made ex parte, that 
an account is just and true, is not com- 
petent testimon_y to prove the account, 
though the affidavit is made by the 
book-keeper of the plaintiif, who has left 
this country, and gone to Europe. Brown 
V. -Stede, 14 A. E. G3. 

23. It is competent for a merchant to 
establish an accotint, by proof, that the 
entry on his books, is in the handwri- 
ting of a deceased clerk, who is proved 
to have been correct and accurate in 
making his charges ; and where a depo- 
sition professes to set out an exact copy 
of the entry, thus : " 600 doz. cut glass 
beads a 30 cts. $100," it is evidence to 
show, that at least one hundred dollars 
was due for the articles charged ; the 
plaintiif claiming only that sum by his 
declaration, the fair inference is, that 
the sale was made at twenty cents the 
dozen, and that the mistake was made 
by the commissioner, or scrivener who 
wrote the deposition. Ecerhj v. Brad- 
ford, 4 A. K. 371. 

24. An admission by the defendant, of 
the correctness of the plaintiif 's demand, 
is sufficient evidence on which to recov- 
er, without proof of the original entries, 
or production of the account. Johnson. 
V. Kelly, 2 S. 490. 

25. When there is an unsettled ac- 
count between the wife and another 
party, for transactions when she was a 
feme sole, the admission of the husband, 
in a conference wi^h the other party re- 
specting settlements, that nothing was 
due to the wife, is sufficient to cast the 
bur den on her, of showing, that the parties 
were mistaken in their conclusion. Fow- 
ell V. Powell, 10 A. R. 900. 

26. An admission by the defendant, 
upon the presentation of an account to 
him, that part of it is correct, without 
stating which part, and his silence as to 
the residue, cannot be construed into an 
admission, that the entire account is just: 
Such an admission, is of no value as evi- 
dence, on account of its uncertainty. 
Wafsori V. Bi/ers, G A. R. 393. 

27. Entries made by a tradesman, in 
his book of accounts, are not admissible 
in -liis favor, although it is shown by the 



testimony of witnesses, that his books 
were correctly and accurately kept. 
Nolleijy. Holmes, 3 A. R. 642. 

28. In an action to recover upon an 
account, for goods sold and delivered, 
particular items of the account, cannot 
be proved by evidence, that the articles 
were charged on the books, by a clerk 
who is absent from the state. Moore v. 
Andreios, 5 P. 107. 

29. It is not permissible to prove an 
account, by showing, that a copy oifered 
in evidence, was transcribed from a book 
of original entries, unless the witness 
can testify to the correctness of its items, 
from personal knowledge. Holmes v. 
Gayle, 1 A. R. 517. 

30. A witness may prove, that he has 
transcribed one or more copies of the 
same account, from the books of the 
creditor, and that each copy contains 
similar entries : If there be a discrep- 
ancy in the copies, he may explain it 
from his own knowledge of the account. 
76. _ _ 

31. Where it is material, it may be 
shown what is the practice of commis- 
sion merchants, at a particular place, in 
accepting and advancing for tlieir cus- 
tomers, and as to their placing in the 
hands of their debtors, the vouchers in 
j^roof of their accounts. lb. 

32. An account filed against an in- 
solvent estate, is not, under the statute, 
previous to the passage of the act of 1843, 
sufficiently proved, by an affidavit of its 
correctness, made at the time it is filed; 
but if objected to, it must be proved ac- 
cording to the course of the common law. 
Askew V. Weissinger, 6 A. R. 907. 

33. The statute of this state, on the 
subject of allowing a party his own oath, 
where the amount in controversy is 
twenty dollars, or under, is an innova- 
tion upon the common law, and must be 
strictly construed. Lock v. Miller, 3 S. 
& P. l3. 

34. If an amount claimed by a de- 
fendant, by way of set-oQ" to a suit, be 
more than twenty dollars, he cannot tes- 
tify in regard to it, unless he relinc|uishes 
the excess. lb. 

35. When the plaintiff is offered as a 
witness, under the statute, he cannot be 
confined to the statement merely, that 
the account or each item of it, is just ; 
but may prove all the facts and circum- 
stances connected with it. When the 
defendant is offered as a witness, he is 



ACCOUNTS'. 



17 



confined to a denial of the whole, or a 
portion of the statement of the pUiintiff. 
Tarborough v. Hood, 13 A. R. 176. 

36. When the plaintiff and defendant, 
are the only witnesses in an action upon 
an account, for a sum not exceeding one 
hundred dollars, under the statute of 
1839, the denial by the defendant, on 
oath, of the facts sworn to by the plain- 
tiff, deprives the testimony of the latter 
of all force whatever. Anderson v. Col- 
lins, 6 A. R. 783. 

37. Under the act of 1839, which al- 
lows the oath of the plaintiff to be re- 
ceived in suits upon accounts not ex- 
ceeding one hundred dollars, the deposi- 
tion of the plaintiff \\\a.y be taken, under 
circumstances that will authorize the 
taking of the deposition of any other 
witness. Moore v. Hatfield, 3 A. R, 
442. 

38. Under the act of 1839, which de- 
clares, that in suits on accounts, where 
the amount in controversy does not ex- 
ceed one hundred dollars, the oath of 
the plaintiff shall be received as evi- 
dence of the demand, unless the same is 
controverted hj the defendant, the deni- 
al, on oath, by the defendant, of the 
ti'uth of the facts sworn to by the plain- 
tiff, is sufficient to deprive the plaintiff's 
statement of all influence as testimony; 
yet the effect of the defendant's denial, 
will not be impaired, if in addition 
thereto, he make out an account between 
himself and plaintiff, and verify it at the 
trial. Jones v McLv^keij, 10 A. R. 27. 

39. The intention of the act permit- 
ting the plaintiff to establish his claim 
by his own oath, unless the same is con- 
troverted by the oath of the defendant, 
was not to introduce both plaintiff and 
defendant as witnesses; when the de- 
fendant controverts the oath made by 
the plaintiff, the oath of the latter is ex- 
cluded. Hudgins Y.Nix, 10 A. R. 575. 

40. When husband and wife are sued 
for the debt of the wife, when sole, the 
wife, and not the husband, must make 
the oath required by this act. Ih. 

41. The statute of 1839, which enacts, 
that in all suits to be commenced upon 
accounts for a sum not exceeding one 
hundred dollars, the oath of the plaintiff 
shall be received as evidence of the de- 
mand, unless the same shall be contro- 
verted by the oath of the defendant, does 
not allow the defendant to prove a set-off 
by his own oath, although it does not ex- 

1—3 



ceed that sum. Bennett v. Armisiead, 3 
A. R. 507. 

42. In an action before a justice of the 
peace, for a sum over twenty dollars, the 
defendant may, by his own oath, prove a 
set-off, provided it does not exceed twen- 
ty dollars. Thompson v. Jones, 2 S & P. 
46. 

43 . The plaintiff may prove his account 
by his own oath under the statute, al- 
though the suit is brought upon a note 
as well as an account. Grant v. Cole, 9 
A. R. 366. 

44. The plaintiff may aljandon a part 
of his account, so as to bring it under 
|100, to entitle him to testify. lb. 

45. No notice other than that contain- 
ed in the declaration, need be given, that 
the plaintiff intends being a Avitness, un- 
der the statute. lb. 

46. An open account does not neces- 
sarily carry interest ; and if it does, the 
plaintiff may release the interest, and 
thus bring the account below twenty dol- 
lars, so as to prove it by his own oath. 
Murfs V. Harding, 6 P. 121. 

47. A defendant will not be permitted, 
after judgment has been rendered against 
him by a jvistice of the peace, for a sum 
exceeding twenty dollars, to pay a part, 
so as to reduce the claim below that 
amount, and take the case into another 
court by appeal, and claim the benefit of 
his own oath, so as to swear off the bal- 
ance. Thompson v. Jones, 2 S. & P. 46. 

48. The act of 1839, which provides 
that in suits upon accounts, for a sum not 
exceeding one hundred dollars, the oath 
of the plaintiff shall be received as evi- 
dence of the demand, unless the same be 
controverted by the oath of the defend- 
ant, does not make the defendant a com- 
petent witness to be sworn generally, 
and give evidence to the jury. Hayden 
V. Boyd, 8 A. R. 323. 

49. The statute, allowing the plain- 
tiff's oath as evidence in all suits on ac- 
counts for sums not exceeding one hun- 
dred dollars, applies to a demand for fif- 
ty dollars due on a horse swap. Cave v. 
Burns, 6 A. R. 780. 

50. In a suit between a white man, 
and a free person of color, or of mixed 
blood within the third degree, where the 
amount in controversy is under twenty 
dollars, and the former is sworn, the lat- 
ter has also a right to the advantage of 
his own oath. Ivey \. Hardy, 2 P. 548. 

51. The balance of an open account, 



18 



ACCOUNTS. 



originally for more than fifty dollars, but 
reduced below that amount by credits, is 
recoverable before a justice of the peace. 
Baird v. Nichols, 2 P. 186. S. P. King 
V. Doughertij, 2 S. 487. 

52. Where a party presents an account 
to his debtor, in which are stated both 
debits and credits, he shall not claim the 
benefit of the former, without submitting 
to the latter also. Fitzpatrick's adm'r v. 
Harris, 8 A. K. 32. 

63. Where a planter employs a mer- 
chant to ship his crop to a particular 
house, in an action by the foi'mer against 
the latter, the account of sales of such 
house, in relation to the subject of the 
shipment, is competent evidence for the 
defendant, to prove the amount the cot- 
ton sold for. Black v. EicJiards, 2 S. & 
P. 338. 

54. Where a settlement in writing is 
agreed upon, and a person employed to 
put it, in the presence of the parties, upon 
the back of an instrument to which the 
settlement referred, such written settle- 
ment is admissible, without proof of the 
execution of the instrument on which it 
is indorsed ; and the person reducing it 
to writing, may testify, that the result 
was obtained by each party stating the 
items of his account, among which were 
certain judgments, although the judg- 
ments are not produced. JValker v. Dri- 
ver, 7 A. R. G79. 

55. When proof has been made, that a 
party admitted an account to be correct, 
the eff'ect of the admission may be de- 
stroyed, or impaired, by proof, that it 
was hastily, or inconsiderately made, 
without a knowledge of the facts ; but it 
is not admissible to prove, that in the 
opinion of others, he is not a man of ca- 
pacity, or education, to understand long 
accounts, and is rather dull. Steioart v. 
Co7iner, 13 A. E. 94. 

(b) Of Accounts Stated. 

56. If a party to whom an account is 
rendered, admits its correctness, it be- 
comes a stated account; or if he retains 
it, and makes no objection within a rea- 
sonable time, his silence will be con- 
strued into an acquiescence in its just- 
ness, and he will be bound by it, as if it 
was a stilted account. Langdon v. Roane's 
adm'r, 6 A. R. 518. Ware v. Dudley, 16 
A. R. 742. 

57. It is competent for a party relying 



on a stated account, to introduce the per- 
son who made it, to prove that it was 
made upon items admitted by the par- 
ties. Walker v. Driver, 7 A. R. 680. 

58. Where parties have settled their 
accounts, and struck a balance, the set- 
tlement is, p7~ima facie, binding upon 
them, until impeached for fraud, or mis- 
take, which, must be proved by the party 
alledging it. Ih. 

59. If, after an action is commenced, 
an account is stated between the parties, 
it may properly be given in evidence on 
the trial. Stowe v. Sewall, 3 S. & P. 67. 

60. Because an account stated may be 
declared on as such, this does not pre- 
clude the plaintiif from introducing it 
under other counts to which it may be 
applicable. lb. 

61. If one partner bring an action at 
law against another, and while the ac- 
tion is pending, a settlement is made be- 
tween them, and a balance struck, it will 
be presumed that it was done to enable 
the plaintiff to use it as evidence on the 
trial. lb. 

(c) Of Splitting Accounts. 

62. A continuous running account be- 
tween the same parties, is an entire 
thing, not susceptible of division, the ag- 
gregate of all the items being the amount 
due ; and therefore a recovery of a part 
by suit, will bar an action for the residue. 
Oliver v. Eolt, 11 A. R. 574. Lock v. 
Miller, 3 S. & P. 14. De Sylva v. Henry, 
3 P. 132. 

63. This rule applies to a physician's 
account, who having sued for and recov- 
ered a part, cannot maintain an action 
for the residue of the account. Oliver v. 
Holt, 11 A. R. 574. 

(d) Interest on Accounts. 

64. Interest is recoverable on an open 
account for goods sold and delivered, 
where by express stipulation, the account 
is to be considered as due at a particular 
day. Moore Y.Patton, 2 V. 4:^1. 

65. Where the defendant has agreed 
to pay interest on an open account, it 
may be recovered on the common counts 
in assumpsit. ■ lb. 

66. Interest may be charged on an 
open account, when the contract stipu- 
lates for a certain period of credit; but 
the law does not permit rests to be made 



ACTIONS. 



19 



in the account, every six or twelve 
months, restating the account at each 
time, and converting interest into prin- 
cipal ; and no custom or agreement to 
that effect can alter the law. Marr's ex'x 
V. Southwick, 2 P. 351. 

67. An open account does not neces- 
sarily carry interest ; and if it does, the 
plaintiff may release the interest, and 
thus bring the account below twenty 
dollars, so as to prove it by his own oath. 
Murfs V. Harding, 6 P. 121. 



11. Accounts in Chancery. 

68. Where the parties have settled 
their accounts and struck a balance 
■which has been adjusted by cash, or with 
a security for its payment at a future 
day, it is incumbent upon the party com- 
plaining of fraud or mistake, by suit in 
chancery, to alledge it specially in his 
bill, and to establish the allegation by 
proof; and the agreement by the parties 
that errors should be corrected, does not 
relieve the plaintiff from the onus of prov- 
ing a mistake. Langdon v. Roane's adm'r, 
6 A. R. 518. Walker v. Driver, 7 A. R. 
680. 

69. Where matters of account between 
the complainant and defendant, are com- 
plicated, embracing the transactions of 
several years, relating to the employ- 
ment of several steam-boats upon their 
joint account, and made up of many 
charges for and against each other, a 
court of equity may entertain the com- 
plainant's bill for a settlement of ac- 
counts, and the recovery of a balance. 
Kirkman v. Vanlier, 7 A. R. 217. 

70. It is not sufficient to give a court of 
chancery jurisdiction, that an account 
exists between the parties, or that a fraud 
has been practiced. There must be a 
discovery wanted to disclose the fraud, 
or in aid of the account ; or the accounts 
must be so complicated, as to require the 
aid of a court of chancery to adjust them. 
K^iotts V. Tarver, 8 A. R. 743. 

71. Chancery has no jurisdiction of a 
suit by one of several partners, against 
another, for the recovery of an ascertain- 
ed balance : If a settlement be the object 
of the bill, all the partners should be 
joined. McGehee v. Dougherty, 10 A. R. 
^63. 



ACTIONS. 

I. Br, AND AGAINST WHOM, AND FOR 

WHAT AN Action will lie. 

II. Where no action will lie; and 
AND herein oe "Damnfm Absque 
Injuria." 

III. Election of Actions; and herein 
when an Action should be in a 
different form from that adopted. 

IV. Action merged in aPelony. 

V. Of Consolidating Actions. 

VI. What Actions do, or do not sur- 
vive. 

Yll, How representatives op deceas- 
ed PLAINTIFFS AND DEFENDANTS ARE 
MADE PARTIES. 

VIII. Dividing, or Splitting causesot 
Action. 

IX. Of Qui Tam Actions. 

X. Commencement of Actions. 
XL Action on the Case. 



I. By, and against whom, and for what 
AN Action will lie, 

1. Under a special contract to sell 
slaves, upon the payment of a sum cer- 
tain at a specified day, the title vests in 
the party contracting to purchase, by a 
tender of the money ; and if, after a ten- 
der, and refusal, the vendee recovers the 
slaves, on the ground that the title vest- 
ed by the act of tender, an action will lie 
in favor of the vendor to recover the mo- 
ney tendered. M'Leod v. Poioe, 12 A. 
PJ9. 

2. Money paid by mistake, by one ad- 
ministrator to another, may be recovered 
back, if demanded before it is paid out 
in the distribution of the assets of the es- 
tate. Wilson V. Sergeant, 12 A. R. 778. 
Yarborongh v. Wise, 5 A. R. 292. 

3. Where an administrator has paid 
to the guardian of a distriljutee of the 
intestate's estate, a sum beyond the dis- 
tributive share, he may maintain an ac- 
tion against the guardian, for the excess 
paid to him, although he has made a final 
settlement of his administration ; and the 
guardian may retain from the funds of 
his ward for his reimbursement. Sellers 
V. SmitJi, 11 A. R. 264. 

4. If an overseer employed for a year, 
is discharged before the year expires, 
without a sufficient reason, he may sue 
immediately for a breach of the contract, 



20 



ACTIONS. 



and recover not only the damages which 
then have accrued, but such as may be 
developed before the trial. Martin v. 
Everett, 11 A. R. 175. S. P. Davis v. 
Ayres, 9 A. R. 292. 

5. An action of debt will lie upon the 
statute, which provides that an officer 
who receives illegal fees, shall be liable 
in damages to the party aggrieved, for 
fourfold the amount illegally received. 
Spence v. Thompson, 11 A. R. 746. 

6. Where the assignee of a note, simul- 
taneousl}^ with the assignment, receives 
of a third person, a note for an amount 
advanced for him, it cannot be assumed 
that the note has been paid ; and if it has, 
the assignee may maintain an action 
against the assignor, for the benefit of 
the person who paid it. Broion v. Ishell, 
11 A. R. 1010, 

7. An attorney who had a note for col- 
lection, and received payment in slaves, 
may be sued on a parol promise to pay 
his principal. Cameron v. Clarke, 11 
A. R. 259. 

8. Such a promise is not required by 
the statute of frauds, to be in writing. 
lb. S. P. McKenzie v. Jackson, 4 A. R. 230. 

9. A member of a partnership, deal- 
ing in real estate, made a note payable 
to a third person, which became the pro- 
perty of the company ; and in the distri- 
bution of the proceeds, the note was deli- 
vered to another member to collect, re- 
tain from it his share, and pay the resi- 
dence to the treasurer : Held, that the 
party receiving the note, could maintain 
an action thereon, in the name of the 
payee, for his own use. Rowland v. 
Boozer, 10 A. R. 690. 

10. If a partnership, upon its dissolu- 
tion, convey all its effects to one of the 
firm, and after such dissolution and trans- 
fer, a debtor of the firm promise to pay 
the individual partner, he may maintain 
an action in his own name on the prom- 
ise. Hoicell V. Reynolds, 12 A. R. 128. 

11. A promise to divide the rent of 
certain land, for the year 1843, and un- 
til the determination of a named suit, in- 
duced by the undertaking of the promi- 
see, to produce evidence on the trial of a 
suit in chancery, showing the fiiilure of 
consideration of certain notes, will ena- 
ble the promisee to maintain indebitatus 
assnmjisit on showing the receipt of rents. 
JValke V. McGehcc, 11 A. R. 2/3. 

12. In a suit against the promiser on 
such a contract, it is not necessary for 



the plaintiff to show any performance of 
his undertaking, the promise to perform, 
being a sufficient consideration to sustain 
the contract. ' lb. 

13. The act of 1807, declares void all 
promises by which parties stipulate to 
pay each other, money or other thing of 
value, upon the event of a horse-race, or 
other description of gaming; consequent- 
ly, where money thus Avagered, is depos- 
ited with a stakeholder, it may be re- 
claimed- by either party, before it is paid 
over, by a notice not to pay ; and no spe- 
cial demand is necessary, to entitle the 
part}' giving notice, to maintain an ac- 
tion against the stakeholder, where he 
afterward paid it to the supposed winner. 
Ivey V. Phifer, 11 A. R. 535. Shackle- 
ford v. Ward, 3 A. R. 37. Wood v. Dun- 
can, 9 P. 227. 

14. Money lost upon a horse-race, may 
be I'ecovered back, if the suit is brought 
within six months from the time the mo- 
ney is paid to the winner : It is not ne- 
cessary that the defendant should plead, 
that more than six months had elapsed 
before the commencement of the suit, as 
the right of action depends on the suit 
being brought within that period. Sam- 
uels^'Y. Ainsworth, 13 A. R. 366. 

15. Upon a bond executed to several, 
with condition to pay them such costs 
and damages as they may sustain by the 
wrongful suing out of an attachment, a 
joint action may be maintained, though 
the attachment is levied on the separate 
property of each. Boyd v. Martin, 10 
A. R. 700. S. P. Gayle v. Martin, 3 A. 
R. 593. 

16. An owner of slaves, may be sued 
for their default, in not working on the 
road, in the county in which they reside, 
though he is a resident freeholder of an- 
other county; and such suit may be 
brought in the name of the overseer of 
the road, Barney v. Bush, 9 A. R. 345. 

17. A purchaser of a lot at a mortgage 
sale, where the lot had pre\"iously been 
sold under execution against the mort- 
gagor, and the possession delivered to 
the 23urchaser, cannot transfer his title, 
so as ' to authorize his alienee to sue in 
his own name. Pryor v. Butler, 9 A. 
R. 418. 

18. "Where one party stipulates with 
another, to pay him fifty dollars per 
month for four months, for his services 
as a clerk in a store, and then refuses to 
allow the services to be performed, with- 



ACTIONS. 



21 



out a sufficient cause, the party engaged 
as a clerk, may immediately commence 
an action against his employer, and re- 
cover, not only the damages sustained 
by the breach of contract, at the time the 
suit was brought, but such as may be 
developed up to the trial : And although 
the declaration alledges, that the four 
months had expired, without making 
any reference to the time when it v/as 
filed, or the issuing of the writ, it can- 
not prejudice the finding of the jury, 
where the proof is ample to show a good 
cause pf action, as stated by the plaintiff. 
Davis V. Ai/res, 9 A. R. 292. 

19. Where an agent has a note to col- 
lect, and pays the amount of it to his 
principal, he acquires sxich an, interest 
in the note as to enable him to sue upon 
it. Tankersly v. Graham, 8 A. R. 247. 

20. An agent to whom a j^romissory 
note is payable, may maintain an ac- 
tion thereon in his own name. Bird v. 
Daniel, 9 A. R. 302. Castleherry v. Fen- 
nell, 4 A. R. 642. 

21. An action for refusing to comply 
with a contract of sale, made with a sher- 
iff', upon a sale of property under execu- 
tion, is properly brought in the name of 
the sheriff". Bell v. Owen, 8 A. R. 312. 
Lamkin v. Craioforcl, 8 A. R. 153. Ko- 
hinson v. Garth, 6 A. R. 204. 

22. And it is no defense to the action, 
that the thing purchased was not the pro- 
perty of the defendant in execution. 
Lamkin v. Crawford, 8 A. R. 154. 

23. If a sheriff" discharges an execu- 
tion, by paying the amount to the plain- 
tiff, the defendant is liable to the sheriff, 
in assumpsit, if he authorized him to 
make the payment, or assents to, and 
adopts it after it is made : A motion hj 
a defendant to quash an alias execution, 
on the ground of such payment by the 
sheriff, is such a ratification and adop- 
tion of the act of the sheriff, as will make 
the defendant responsible to him for the 
amount. Rbundtree \. Holloioay, 13 -A. 
R. 357. Boundtree v. Weaver, 8 A. R. 
314. Kenan v. Holloioay, 16 A. R. 53. 

24. An action may be maintained up- 
on the official bond of a constable, against 
the principal and his sureties, without 
first establishing the default, and liabili- 
ty of the former, in a separate suit. Baq- 
by V. Chandler, 8 A. R. 230. S. P. 
Governor v. White, 4 S. & P. 441. 

25. The bond of a constal^le, though 
payable to the governor, and his succes- 



sors in office, is, in legal effect, an obliga- 
tion to the governor, as the chief ex- 
ecutive officer ; and may be declared on, 
without noticing the obligee's name: Or 
if suit be brought "in the name of the 
nominal obligee, (describing him official- 
ly,) who was superseded in office, before 
its commencement, it will be regarded as 
an action by the governor, and the name 
of the individual will be treated as sur- 
plusage. Bagby v. Chandleir, 8 A. R. 230. 

26. A note made by one executor of 
an estate, and also by a third person as 
his* surety, payable to the executors of 
the same estate, cannot be enforced 
against the sm'ety by a suit at law, where 
the princijjal deljtor in his character of 
joint executor, is one of the plaintiffs. 

Chandler v. Shehan, 7 A. R. 251. S. P. 
Tindal v. Bright, Minor, 103. 

27. But one joint executor may law- 
fully take a note with surety from his 
co-executor, payable to himself, for the 
purchase of property of their testator, 
sold by them jointly as executors; and 
may sustain an action at law thereon, 
Hampton v. Shehan, 7 A. R. 295. S. P.. 
Philips V. Philips, 1 S. 71. 

28. And it is no valid ol)jection to a 
suit on such a note, that it is brought for 
the benefit of the principal in the note, 
and two other persons, as executors of an 
estate. Hdmp>ton v. Shehan, 7 A. R. 295. 

29. A note, payable to the order of the 
maker, is of no validity until indorsed ; 
but when indorsed, it becomes perfect, 
and the ^larty may be sued as maker. 
Lea V. The Branch- Bank at Mobile, 8 P. 
119. (Overruling Ramsey v. Johnson, 
Minor, 418.) 

30. A bill of exchange drawn by a 
firm, in favor of one of its meml^ers, and 
indorsed to a stranger, may be sued on 
by the holder, notwithstanding the fact, 
that the payee is a partner. Hazlehursf 
V. Pojje, 2 S. & P. 259. 

31. An action for. money had and re- 
ceived, will lie to recover back money 
paid upon a judgment which has been 
since reversed, unless the retention of 
the money liy the defendant, is consis- 
tent with equity and good conscience. 
Dtipuy V. Roebuck, 7 A. R. 484. Duncan 
V. Ware's ex'rs, 5 S. & P. 119. Meredith 
V. Richardson, 10 A. R. 828. Judson v. 
Eslam,, Minor, 71. Stewart v. Conner, 
9 A. R. 803. 

32. But the equitable right to retain, 
must grow out of, or be connected vsith 



09 



ACTIONS. 



the case in which the judgment is vaca- 
ted ; if the defendant has another cause 
of action in which he will be entitled to 
recover as much as he retains, he must 
become the actor in a suit, and have his 
damages ascertained by a judgment. 
JDiipuij V. Roebuck, 7 A. R. 484. 

33. Thus, where the money is collect- 
ed on an execution, issued upon a defec- 
tive forthcoming bond, which is subse- 
quently quashed, and the bond is good as 
a common law bond, in an action for 
money had and received, to recover back 
the money paid on the execution, the "de- 
fendant is entitled to retain the amount 
he could recover in an action for a breach 
of the condition of the bond. Meredith 
Y.' Eichardson, 10 A. R. 828. S. P. 
Duncan v. Ware's ex'rs, 5 S. & P. 119. 

34. Semble: The plaintiii" may recover 
in an action upon a covenant of warran- 
ty, though he voluntarily yielded to a 
dispossession, provided the title to which 
he yielded was a good title, and para- 
mount to that of the warrantor. Dupuy 
V. Roebuck, 7 A. R. 484. Davenport v. 
Bartlett, 9 A. R. 179. 

35. An action of assumpsit lies by a 
public officer, to recover money for which 
he has by mistake given a receipt. Smith 
V. Seaton, Minor, 75. 

36. When a note made upon a gaming 
consideration, is transferred in payment 
of a debt, an action may be maintained 
upon the consideration of the original 
debt, without proof of any diligence to 
recover the amount of the note from the 
maker. Lake v. Gilchrist, 7 A. R. 955. 

37. When the note of an insolvent man 
is passed off in payment of a debt, and 
the insolvency is artfully concealed by 
any stratagem, or unfair practice, an ac- 
tion may be maintained upon the origin- 
al consideration. lb. Trotter v. Crockett, 
2 P. 411. S. P. Barton v. Scales, Minor, 
166. 

38. When a note, or other instrument, 
is received in payment of an existing 
debt, the creditor must use due diligence 
to recover it from the maker, or he can- 
not sue the debtor upon the original con- 
sideration ; if the instrument so trans- 
ferred, is governed by the commercial 
law, he must make demand, and give no- , 
tice of non-payment ; if it is not mercan- 
tile in its character, he must sue thereon, 
to the first court to which suit can be 
brought, as required by the statute: But 
if a fraud has been practiced on the cred- 



itor, in the transfer, (as by a false repre- 
sentation of the solvency of the maker,) 
or the instrument transferred has no le- 
gal validity, (as being forged, or given 
on a gaming consideration, ) no diligence 
is required, and the assignor may be 
sued at once on the original considera- 
tion. Lake v. Gilchrist, 7 A. R. 958. 
Bcdes V. Ryland, 6 A. R. 668. Trotter v. 
Crockett, 2 P. 411. 

39. A parol executory contract for the 
sale of land, cannot be enforced at law ; 
but when the contract has been executed 
by a conveyance of the land, assumpsit 
will lie for the purchase money. Butler 
V. Lee, 11 A. R. 885. 

40. Upon a verbal contract for the sale 
of land, the vendor cannot maintain an 
action at law, for the purchase money, 
although the vendee has paid a part of 
the price, and retains the possession of 
the land. Johnson v. Hanson, 6 A. R. 
351. (Overruling Meredith v. Naish, 3 
S. 207.) 

41. And when the vendee has pa,id 
part of the purchase money, on a verbal 
contract for the purchase of land, and 
retains uninterrupted possession, he can- 
not maintain an action against the ven- 
dor, to recover back the money paid on 
the contract. Cope v. Williajns, 4 A. R. 
362. 

42. Where, however, money has been 
paid on a verbal contract for the pur- 
chase of land, and the purchaser does 
not take or retain possession, he may 
maintain an action, to recover back the 
money paid. Allen v. Booker, 2 S. 21. 

43. When a note is given by the pur- 
chaser, for the price of land, agreed to be 
sold by verbal contract only, a recovery 
cannot be had upon it, because of the 
want of consideration, the undertaking 
of the payee l^eing void under the statute 
of frauds. Bates v. Terrell, 7 A. R. 129. 
(This case conflicts with Rhodes' adm'rs 
V. Storr, 7 A. R. 346 ; and is overruled 
in Gillespie v. Battle, 15 A. R. 276.) 

44. Where the same jjerson is a part- 
ner in two partnerships, and one of the 
partnerships executes its note to the oth- 
er, or becomes otherwise indebted, the 
death of the common partner removes 
the impediment to a suit at law to reco- 
ver the demand, and the survivor of the 
one concern, may sue the sur^avors of the 
other, at law. Lacy v Le Bruce, 6 A. R. 904. 

45. Where a note is made by an asso- 
ciation of individjials as a banking com- 



ACTIONS. 



2S 



pany, payable to one of themselves, or 
bearer, and put in circulation without 
any indorsement, a bona fide holder may 
institute suit in the name of the payee, 
for his use, against any other member of 
the association. Elliott v. Montgomery, 
4 A. K. 600. 

46. Under the statute of 2d February, 
1839, the holder of such notes or bills, 
may maintain an action thereon, in his 
own name. Kem-per and Noxiibee Nav. 
Co. V. Schieffelin, 5 A. K. 493. 

47. Where claims are placed in the 
hands -of a third person, to collect and 
pay over the money to the creditors of 
the proprietor, an action for the failure 
to collect them, and pay over the amount, 
may be maintained by the latter, the 
creditors being no parties to the arrange- 
ment, and their demands being paid by 
him. Mardis' adm'rs v. SJiackleford, 6 
A. R. 433. 

48. An agent acting for a known prin- 
cipal, and receiving money in that char- 
acter, is not individually responsible, if 
the money has been paid over to his 
principal without notice ; and this rule 
applies to revenue officers or tax collec- 
tors. Therefore, when a county clerk 
collects money by order of the commis- 
sioners' court, under an illegal assess- 
ment, he cannot refuse to pay it over to 
the county treasurer, unless it has been 
previously demanded of him by those 
from whom it was received. Thompson 
\. Stickney, 6 A. R. 579. 

49. To recover upon a decree rendered 
in agister state in favor of infimt wards, 
who there sued by their gua^rdian, an ac- 
tion should be pi-osecuted in this state in 
the name of the wards as legal plaintiiFs, 
and not by the guardian, merely descri- 
bing himself as such on the record. 
Cr^ V. Topp, 4 A. R. 238. 

50. Infants must, in order to the re- 
covery of their rights, sue in their own 
names, by their guardians, instead of 
making their guardians the principal ac- 
tors in the cause ; and this is the rule, 
as well in equity, as at law. Boioie v. 
Minter, 2 A. R. 406. - Greqg v. Bethea, 6 
P. 11. Sutherland v. Goff, 5 P. 508. 
McLeod V. Mason, 5 P. 223! Beannany. 
Dearman, 5 A. R. 202. 

51. But a guardian may maintain an 
action in his own name, for an injury to 
the property of his ward in his actual 
possession. Fuqua v. Hunt, 1 A. R. 197. 
Sutherland v. Goff, 5 P. 508. 



52. Whether a ward, after final settle- 
ment with the guardian, can sue at law 
in his own name, on notes payable to the 
guardian, without indorsement, qucere. 
Chilton V. Cabiness, 14 A. R. 447. 

53. P C executed several notes paya- 
ble to S, guardian of M II, with R C as 
surety : R C married the ward, and be- 
came, and was declared a bankrupt : 
Suit being instituted on the notes againSt 
P C, by the assignee in bankruptcy of 
R C, it was held, that as it did not ap- 
pear that the notes ever passed from the 
guardian to the bankrupt, or that he had 
ever come to a final settlement with the 
guardian, or how the accounts stood be- 
tween the guardian and his ward, the 
ward and her husband could not have 
sued at law upon the notes, and therefore, 
the assignee in bankruptcy of the hus- 
band could not sue on them. lb. 

54. When a suit is commenced in the 
name of a person without his consent, 
and carried on for the benefit of another, 
who claims an interest, the plaintiff on 
the record is authorized to dismiss the 
suit, unless indemnity is given him 
against the costs ; but the erroneous ac- 
tion of an inferior court in allowing such 
a plaintiff to dismiss his suit, can only 
be corrected by mandamus. Brazier v. 
Tar.ver, 4 A. R. 569. 

55. It is not erroneous, however, to 
refuse to open the time which has been 
given to furnish the indemnity : After 
the time has expired, the discretion of 
the court is absolute, and will not be 
controlled. lb. 

56. A bond to a number of obligees, 
conditioned to pay several ar^d distinct 
judgments in favor of each, must be sued 
in the name of all the obligees or the 
survivors of them, upon the principle, 
that those in whom the legal interest is 
vested, must join in an action at law. 
Gayle v. Martin, 3 A. R. 593. Boyd v. 
Martin, 10 A. R. 700. 

57. All the parties to an action must 
be competent to sue, otherwise the action 
cannot be maintaided ; when, therefore, 
the statute of limitations has run against 
one of several parties entitled to a joint 
action, it operates as a bar to such ac- 
tion. Hardeman v. Sims,- 3 A. R. 747. 
S. P. Cochran v. Cunningham, 16 A. R. 
448. , , 

58. A note payable to a person or 
bearer, made previously to the statute of 
1837, may properly be sued in the name 



24 



ACTIONS. 



of one who holds it by delivery, ■without 
any indorsement from the payee. Sproicl 
V. Simpkins, 3 A. R. 515 

59. Two persons owning, one of them 
five slaves, and the other three, agreed 
to work them on a plantation, for their 
joint benefit; afterward a contract was 
made by one them with the defendant, 
for services to be performed l)y the 
slaves; the owners may join in an action 
for the breach of this contract, although 
the defendant was ignorant that there 
was a joint interest in the slaves; or the 
owner with whom the contract was made, 
may sue alone. Mc Cord v. Love, 3 A. E,. 
107. 

60. The official bond of a clerk of the 
circuit court, cannot be siied in the name 
of the governor, for the use of the person 
aggrieved ; bvit must be sued in his 
name, on the assignment of the governor. 
Baghy v. McBae, 2 A. R. 708. 

61. The assignment is a mere author- 
ity to sue, and does not convej^ the legal 
title ; and therefore the bond may be as- 
signed again, and until the whole pen- 
alty is recovered. lb. 

62. The time within which suits majr 
be brought, and the mode in which they 
shall be instituted, relate to the remedy, 
and do not affect the obligation of a con- 
tract : Therefore, although a bank in 
Oeorgia, by the act of incorporation, vras 
permitted to join separate indorsers in 
the same action, yet if the bank sue in 
this state, on a note made to it in the 
state of Georgia, it must bring separate 
suits, such being the law of this state. 
Givens v. The Western Bank of Georgia, 
2 A. R. 397. 

63. The pendency of, a proceeding to 
try the right of property to goods taken 
on execution, cannot prevent a third per- 
son from maintaining an action at law 
to recover the goods of the claimant. 
Oden v. Stuhhlefield, 2 A. R. 684 

6-1. The act of 1806, which .provides, 
that no action shall be commenced 
against an executor or administrator, 
until after the expira°tion of six months 
from the grant of administration, does 
not apply to the action of detinue, as such 
an action cannot be instituted against an 
executor or administrator in his repre- 
sentative capacity. Sinis v. Canfield, 2 
A. R. 555. S. P. Bettis v. Taylor, 8 P. 
564. Nettles v. Barnett, 8 P. 181. (But 
see Brewer v. Strong, 10 A. R. 961.) 

65. S held the obligation of W to make 



him a title to a tract of land, and before 
title was made to the obligee, the obligee 
sold the land to C, and brought an ac 
tion against W on his obligation : Held, 
that C's declaring himself S9.tisfied with 
the title vfhich he had, did not bar the 
action by S against W. Watts' ex'rs v. 
Sheppard, 2 A. R. 426. 

66. Where the guardian of a luna- 
tic purchases merchandise (which is 
charged to hini) for the use of the luna- 
tic and his family, an action cannot be 
maintained against the lunatic, upon an 
implied promise to pay the amount, al- 
though he has recovered his reason, and 
his property has been restored to him, 
and the guardian has retained no part of 
it to indemnify himself for liabilities on 
accovmt of his ward : At the time the 
purchases were made, the lunatic was 
not in a situation to make "himself liable 
upon an implied promise, and subse- 
quent events cannot create it. Westmore- 
land V. Davis, I A. R. 299. 

67 . But as the debt was contracted on 
account of the lunatic and his family, he 
is under a moral obligation to pay it, and 
a promise after a return of his reason, 
Would be binding : And, he would be li- 
able, upon an implied undertaking, to 
reimburse the guardian, should he pay 
the debt. lb. 

68. A wife filed a ]>ill for divorce 
and alimon3% on the ground among oth- 
ers, that her husband was a lunatic, and 
an order was made, allowing a thousand 
dollars per annum, for the support and 
maintenance of herself and children; 
the husband being afterward restored to 
sanity, and the bill dismissed, it was 
held, that an action of assumpsit would 
lie against him to recover money due 
for the tuition of his children, on a con- 
tract made by his wife, pending the bill 
in chancery. Harris v. Davis, 1 A. R. 
259. 

69. By the marriage of a feine sole ad- 
ministratrix, the husband becomes joint 
administrator with her ; and if the hus- 
band vsue or be sued as administrator, the 
wife must be joined with him. William' 
son V. HiU, 6 P. 184. 

70. But where the administrator may 
be charged in his own right, the action 
lies against the husband alone. lb. 

71. An action can well be maintained 
against the sureties upon an administra- 
tion bond, after the plaintiff's claim has 
been ascertained by judgment to be lev- 



ACTIONS. 



25 



ledcZe bonis intestatis, upon an allegation, 
and proof, that the administrator ■ has 
wasted more than an equal amount of 
the goods and chattels of the intestate; 
and thi.s, before a deoastacit is fixed upon 
the administrator by a judgment recov- 
ered against him personally. Thompson 
V. Searcy, 6 P. 393. 

72. But where an administrator dies 
before his liability is fixed by judgment, 
his sureties may be sued alone in equity, 
for a devastavit committed by him. Moore 
V. Armstrong, 9 P. 697. 

73. A legatee, or distributeeof an es- 
tate, after a decree in the orphans' court, 

.on final settlement, for the sum ascer- 
tained to be due him, may maintain an 
action upon the administration bond, 
against the executor, or administrator, 
and his sureties. Perkins y. Moore, 16 
A. R. 9. Judge of Limestone County 
Court V. Frencli, 3 S. & P. 263. Same v. 
Coalter, 3 S. & P. 348. 

74. A partner, who after a dissolution 
of the firm, pays the firm debt, and takes 
the note of his late associate in payment 
of it, may well maintain an action at 
law upon the note, notwithstanding he 
may laave received the books and ac- 
counts of the copartnership, for collec- 
tion and settlement, the consideration 
not being impeached, and it not appear- 
ing but that the debt was paid dut of 
the separate funds of the payee. Lyon 
X. Malone, 4 P. 497. 

75. An action at law, lies by one part-' 
ner against another, on a writing ascer- 
taining the amount due by one to . the 
other on a settlement, although there be 
no express promise to pay. M' Coll v. 
Oliver, 1 S. 510. 

76. Where partners purchase land for 
the benefit of the partnership, and one 
contributes more than his proportion, he 
may maintain an action against his co- 
partners for the excess. Bnmpass v. 

JW,iS. 19. 

77. When a "partnei-ship is dissolved, 
and upon settlement, a balance is found 
due to one of the partners, assumpsit 
will lie for the amount. Pope v. Ran- 
dolph, 13 A, R. 214. 

78. One partner may sue another at 
law, on a note which the latter gave him 
upon engaging in business, for the pay- 
ment of a part of the capital stock : And 
semble, if one partner give the other his 
note or acceptance for value received, on 
tlie partnership account, an action will ' 

1— J: 



lie on such bill or note. Grigsby's ex'rs 
v. Nance, 3 A. R. 347. 

79. An action will lie against two 
partners, on a written contract in the 
nanae of one only, and evidence aliunde 
may be given to prove that it was a part- 
nership contract. Snead v. Barringer, 1 
S. 134. 

'80. When tlie action is brought by 
two, as partners, and one disclaims all 
interest, the otlier may proceed in' the 
name of both. Allen v. White, Minor, 
365. 

81. An administrator who purchases 
goods for the use and benefit of an es- 
tate, is personally responsible to the 
vendor, and an action for the price of 
them lies against the adnlinistrator in 
his ioflividual capacity. Harding y. 
Evans, 3 P. 221. Greening y. Sheffield, 
Minor, 276. 

82. xind an action at law, will not lie 
against an executor or administrator, on 
a contract made 1)y liim as such. Green- 
ing V. Sheffield, Minor, 276. 

83. One executor may maintain an 
action against another, on his express 
promise. Philips v. Philips, 1 S. 71. 
S. P. Hampton Y.'SheJian, 7 A. R. 295. 

84. An administrator de bonis -non, 
may sue on a note, payable to the ad- 
ministrator in chief, in his own name. 
Caller's ex'x y. Boyldn, Minor, 206. 
King v. Griffin, 6 A. R. 387. Cummings 
V. Edmunson, 5 P. 145. Dunham v. 
Grant, 12 A. R. 105. Barron y. Vand- 
vert, 13 A. R. 232. 

85. Where there is a joint interest ex- 
isting in a contract, and one of the par- 
ties dies before an action on it is com- 
menced, such action must be brought in 
the name of the survivor ; and a failure 
to set out in the declaration, the contract 
as it existed, and to show the interest of 
the plaintiif to be as survivor, is error. 
Callison\.LiMle,'2'P. 89. 

86. A suit' cannot legally be com- 
menced upon a promissory note, on the 
same day on which it becomes due. 
Randolph v. Cook, 2 P. 286. ' Sanders y. 
OcMltree, 5 P. 73. _ 

87. When suit is brought on a cause 
of action before the same is past due, it 
is available on error, even after appear- 
ance and judgment byni7 dicit. Ran- 
dolph V. Cook, 2 P. 286. (But see Jones 
v. Tarborovgh, 2 A. R. 524, where the 
contrary is held.) 

88. The holder- of an instrument 



26 



ACTIONS. 



transferred as a conditional payment, 
or collateral security, is not bound to 
sue on it, or return, or offer to return it, 
in order to maintain an action on the 
original consideration, intended to be 
secured by such transfer. Trotter v. 
Crockett, 2 P. 401. 

89. But the successful pursuit of the 
original debt, will depend on the fact, 
whether or not, laches has been commit- 
ted by the holder, whereby any liability 
on the transferred paper has been lost 
to the -party transferring it. Ih. 

90. The acts of 1828 and '29, requi- 
ring the indorsee of paper, to sue the 
maker to the first court after it is due, 
do not embrace a ease where the maker 
removes beyond the jurisdiction of the 
courts of this state, and so remains du- 
ring the period when he might legally 
be sued : It is not necessary, to charge 
the indorser, that the party should go be- 
yond the state to find the maker. Wood- 
cock V. Campbell, 2 P. 456. 

91. A note, upon which days of grace 
are not allowed, drawn on Saturday, 
payable one day after date, is payable 
on the Monday, following ; and suit can- 
not be commenced on it on the day of its 
date, on the ground that the day follow- 
ing is Sunday. Sanders v. Ochiltree, 5 
P. 73. 

92. But this rule does not apply where 
a note falls due on a Sunday, subsequent 
to the next day after its date; in that 
case, the day of payment is the day pre- 
vious to that appointed for performance. 
lb. 

93. On a note payable to trustees ap- 
pointed to sell town lots, their succes- 
sors cannot maintain an action, though 
the trustees have power to appoint suc- 
cessors. Bumpass v. Richardson, 1 S. 16. 

94. A corporation created in another 
state, may sue in this state. Lucas v. 
The Bank of Georgia, 2 S. 147. 

95. An action of debt on a guardian's 
bond, must be in the name of the judge 
of the county court, for the use of the 
party injured; and the bringing of the 
action is sufiicient evidence that it is in- 
stituted at the request of the party in- 
jured. Davis V. Dickson, 2 S. 370. . 

96. The rule is the same, in actions 
upon administration bonds; the judge 
cannot sue upon the bond, in his own 
name alone; the suit must be in his 
name, for the use of the party aggrieved. 
Perkins v. Moore, 16 A. R. 9. 



97. An action lies against the obligor 
in a bond, given to answer the charge of 
being father to a bastard, if the defend- 
ant fail to appear, though there has been 
no conviction against him. Lake v. The 
Governor, 2 S. 395. 

98. A bond to replevy goods taken in 
attachment, is properly made payable to 
the sheriff. Adkins v. Allen, 1 S. 130. 
Eartin v. Weir, 3 S. & P. 421. Bewallx. 
Franklin, 2 P. 493. (Changed by stat- 
ute. Clay's Dig. 61, sec. 33.) 

99. Such a bond is assignable by the 
sheriff to the plaintiff, who may sue on it 
as assignee. Adkins v. Allen, 1 S. 130. 
-Sartin v. Weir, 3 S. & P. 421. 

100. The defendant in an attachment, 
may have his action on the attachment 
bond, without having ascertained his 
damages by a direct action on the case 
against the plaintiff in the attachment. 
Herndon v. Forn£y, 4 A. R. 243. 

101. Detinue lies by the mortgagee of 
personal property, to recover possession 
of it, after the day for redemption has 
expired. Hopkins v. Thompson, 2 P. 
433. 

102. Though there be a special con- 
tract for the rent of land, the plaintiff 
may, under the statute, recover on a 
count for use and occupation, reasonable 
rent, not exceeding the price fixed by 
the contract. McMillian v. Wallace, 3 S. 
185. 

103. A vendee of land, after special 
request to remove a nuisance erected be- 
fore his purchase, can maintain an ac- 
tion for its continuance. Loftin v. M'- 
Lemore, 1 S. 133. 

104. When the statute of limitations 
begins to run, it continues, notwith- 
standing an intervening disability to 
sue; but if the time limited has not 
elapsed, at the death of one having a 
right of action, his executor or adminis- 
trator may sue within twelve months af- 
terward. Grice V. Jones, 1 S. 254. 

105. A party claiming under a con- 
tract by which he agrees to settle land, 
and make certain improvements within 
a term of years, although not entitled to 
the fee, may maintain trespass to recover 
possession. White v. St. Guirons, Minor, 

Otji. 

106. An action may be sustained 
against the Mayor and Aldermen of Mo- 
bile, to recover the amount appropriated 
to the owners of real estate, taken in 
widening the street, by their consent. 



ACTIONS. 



27 



Mayor of Mobile \. Ricliardson, 1 S. & P. 
12. 

107. An action may be maintained on 
the original consideration of a conti-act, 
though an order on a third person has 
been received in payment, and is in the 
possession of the person drawn on, if 
the plaintiff can account for such pos- 
session, and show that it was improperly 
obtained: And it makes no difference 
that a receipt for the amount is indorsed 
on the order; the plaintiff may explain 
it, and show that it was not in fact paid. 
Gdyle V. Randle, 1 S. 529. 

108. An action of trespass for cutting 
timber, may be maintained by one hav- 
ing title, vdthout actual possession, no 
one being in the actual possession. Gil- 
lesjne v. Dew, 1 S. 229. 

109. Where the payee of a note, si- 
multaneously with its execution, receives 
a guaranty from a third person, on the 
back of the note, and afterward indorses 
the note, the indorsee may maintain an 
action in his own name against the guar- 
antor. Neal V. Smith, 5 A. R. 568. 

110. An action will lie for the breach 
of a contract, by which a debtor, against 
whom his creditor was about to institute 
legal proceedings to recover a debt, se- 
cured by two notes, agreed, in consider- 
ation that the creditor would forbear to 
institute legal proceedings, to subject a 
slave of the debtor to the payment of the 
debt, he would have the slave forthcom- 
ing, at a time and place agreed on, if he 
did not pay the debt; and it is not neces- 
sary to aver, that the creditor could have 
levied an execution, or attachment on 
the slave, if he had been produced, as 
the law implies damages from the breach 
of the contract. Warnock v. Smith, 14 
A. R. 156. 

111. An action will lie on a judgment 
rendered by a justice of the peace, after 
the expiration of a year and a day from 
its rendition, no execution having issued 
within that time. White v. Hadnot, 1 
P. 419. 

112. A witness' certificate may be 
transferred by delivery, and the holder 
may sue in the name of the witness for 
his own use. Findley v. Wyser, 1 S. 23. 

113. When more than fifty dollars is 
due on a contract, the creditor may re- 
linquish all over that amount, and sue 
for fifty dollars in a justice's court. 
King v. Doiirjherty, 2 S. 487. Baird v. 
Nichols, 2 P. 186. 



114. A suit by the assignee of a bank- 
ru:pt, must be brought within two years 
after the decree of bankruptcy, or after 
the cause of action accrues ; and if it ap- 
pears on the declaration, that the suit 
was brought after that period, the dec- 
laration is bad, on demurrer. Harris v. 
Collins, 13 A. R. 388. Comegys v. Mc- 
Cord, 11 A. R. 932. 

115. Where money has been paid un- 
der a contract, which is rescinded, or 
alledged to be fraudulent, an action at 
law lies to recover it back ; and in the 
absence of special allegations of failure 
of proof, or other matter of equitable re- 
lief, chancery has no jurisdiction. Sad- 
ler V. Robinson's heirs, 2 S. 520. 

116. When one accepts an order pay- 
al)le out of a certain note, when collect- 
ed, but dies before the money is collect- 
ed, and it is afterward received by his 
personal representatives, they are liable 
in their representative character, upon 
the contract of their testator. Swansey 
V. Bred:, 10 A. R. 533. S. P. Jones v. 
Jones, 8 A. R. 262. 

117. When one surety receives the 
amount of the debt from the principal, 
and promises to pay it to the creditor, 
but fails to do so, another surety who 
pays the debt, may maintain an action 
against him for the failure, in the prin- 
cipal's narne. Gee v. Nicholson, 2 S. 512. 

118. Where a note is indorsed to one 
person, with the assent of all interested, 
in payment of debts due the indorsee 
and several others, the indorsee may 
maintain an action on it in his own 
name ; and no defense can be interposed 
to avoid its payment, which would not 
avail, if the note had been indorsed and 
the suit brought in the names of all who 
were entitled to receive, portions of the 
sum collected. Pond v. Lockivood, 8 A. 
R. 669. 



II. Where no action will lie; and 
HEREIN OF " Damnum Absque Injuria." 

119. An administrator cannot sue 
upon a note, an asset of the estate, 
which he has taken payable to himself 
as administrator, after his removal from 
office, although no successor has been 
appointed. Dunham v. Grant, 12 A, R. 
105. 

120. A promise to pay a sum of nion- 



*i-' 



28 



ACTIONS. 



ey for the delirery of a valuable paper, 
to ■which the person in possession has no 
claim, but AThich belongs to another, 
cannot be enforced: Nor will it vary the 
case, that the note which Avas given for 
the production of the paper, was made 
payable to a third person. Mc Caleb v. 
Fnce, 12 A. E. 753. 

121. Where a retiring partner sells 
his interest in a mercantile partnership, 
to a third person, who with the other 
partners, undertakes to pay the debts 'of 
the firm, a creditor of the firrh, cannot in 
virtue of this undertaking, maintain an 
action upon his demand, against the in- 
coming partner and his associates. Lee's, 
adm'rs v. Fontaine,'10 A. R. 755. S. P. 
Mardis' adm'rs v. 'SJiackleford, 6 A. Ill 
437. 

122. But if the incoming partners 
promise a creditor to pay his debt, he 
may maintain an action against them fur 
it. McEenzie v. Jackson, 4 A. R. 230. 

123. If the maker of a note makes a 
partial payment thereon to the payee, 
which the latter agrees to indorse on the 
note, but instead of doing so, brings suit 
and recovers judgment for the full 
amount of the note, which is satisfied, 
the maker cannot maintain an actioiiTor 
the partial payment; but should have 
availed hianself of it as a defense jsro 
tanto to the suit of the paj^ee against 
Mm. 3Etc]iell v. Sanford, 11 A. E. 695. 
Brougliton v. Mcintosh, 1 A. E. 103. De 
Sylva V. Henry, 3 P. 132. 

124. A purchaser of a lot at a mort- 
gage sale, where the lot had previonsly 
been sold under execution, against the 
mortgagor, and the possession delivered 
to the purchaser, cannot transfer his title, 
so as to authorize his alienee to sue- in 
his own name. Pryor v. Butler, *9 A. E. 
418. _ ..- 

125. S exchanged with D, a sulky for 
a wagon, agreeing that he would put it 
in good repair, and accordingly instruct- 
ed a carriage-maker to make certain re- 
pairs, amounting to $19 50, for which 
he paid : D, to whom the carriage-ma- 
ker was indebted, directed other repairs 
to be made, amounting to $13, which 
■were_ necessary to put the sulky in the 
condition in which S stipulated it should 
be ; this sum S refused to pay : Held, 
that in cases in which the amount in 
controversy is so small, the court looks 
rather to their equity and justice, than 
the strict rules ordinarily applied at law; 



that S was not liable to the carriage-ma- 
ker for the $13, but D was, in virtue of 
his contrfict; that as the carriage-maker 
was indebted to D, he might retain it 
from his' indebtedness, and that D, might 
recover it from S. I)e Bard v. Sm'itJi, 
9 A. E. 788. 

126. Where a person wrote to the- 
widow of his brother, who lived sixty 
miles distant, that "if she would come 
and see him, lie would let her have a 
place to raise her family," and she did 
so, it was held, that the promise Avas a 
mere gratuity, and that no action would 
lie for a breach of it; Kirksey v. Kirksey, 
8 A. E. 131. 

127.. No action can be maintained 
against a» guardian, or his sureties, on 
his oflicial bond, while the relation of 
•guardian and Avard subsists. Eiland v. 
CJumdler, 8 A. E. 781. 

128. Upon a verbal contract for the 
gale of land, the A'endor cannot maintain 
an action at laAv for the purchase money, 
although the vendee has paid a part of 
the price, and retains the possession of 
the land. Jolmison v. Hanson, 6 A. R. 
351.- (Overruling Meredith v. Naish, 3 
S.207.) 

129. And when the vendee has paid 
part of the purchase money, on a verbal 
contract for the pu.rchase of land, and 
retains uninterrupted possession, he can- 
not maintain an action against the ven- 
dor, to recover back the money paid on 
the contract. Cope v. Williavis, 4 A. E. 
362.' 

130. Upon a note made payable to 
the '• Treasuer of the Manual Labor In- 
stitute of South Alabama," a suit cannot 
be maintained by Madison College, with- 
out an averment that it is the same cor- 
poration, and that the name had been 
changed since the making of the note, 
and before the institution of the suit. 
Madison College v. Burke, 6 A. E. 494. 

131. A note paya,ble to a person, or 
bearer, will not sustain an action in the 
name of any one but the payee, or his 
assignee ; nor can such a note be set off 
by any one but the payee, unless it is in- 
dorsed. Careui v. Nortlirup, 5 A. E. 367. 

132. The marshal of the United States, 
is not liable to a surety for omitting to 
levy on the property of his principal, or 
for making a false return of no proper- 
ty, although by the omission to levy, the 
surety is eventually compelled to satisfy 
the judgment: The marshal owes no 



ACTIONS. 



29 



duty at common law to the surety, and 
therefore is not responsible to him. 
Ch-eg<j V. Crawford, 4 A. R. 180. 

133. Under the statute directing the 
sheriff, or other officer, having an execu- 
tion against a principal and his surety, 
to levy upon the property of the princi- 
pal first, the officer is not liable at the 
suit of the surety, for an omission to levy 
on the property of the principal, unless 
the statutory affidavit is made by the 
surety. lb. 

134. A judge of the county court, is 
authorized to issue the writ of habeas 
i^orpus, in all cases where the detention 
is claimed by virtue of civil process, and 
is empowered to judge of its validity in 
every aspect; he is therefore not liable 
to an action for discharging a debtor 
arrested on a ca. sa. Morroio v. Bird, 6 
A. R. 834. 

135. One who becomes the assignee of 
a bond, with a knowledge that the obli- 
gor resides beyond the limits of the state, ■ 
and makes no effort to collect the bond 
of the obligor, and assigns no reason for 
his neglect to do so, cannot sue the as- 
signor. IveyY.&tnderson,^V.-i:10. 

136. An assignment by an instrument 
not under seal, of lands purchased of 
the United States, the evidence of the 
purchase being the certificate of final 
payment by the assignor to the receiver 
of public moneys in the land office, is not 
sufficient to sustain an action of trespass 
by the assignee. Thrash v. Johnson, 6 
P. 458. Aasley v. Nolan, 6 P. 379. . 

137. No action can be maintained by 
the successor of a judge of the county 
court, upon the ,bond of an assessor and 
collector of taxes, made.p'ayable to the 
judge : The statute requires such a bond 
to be made payable to the governor. 
Calhoun v. Ltmsford, 4 P. 345. 

138. An act of the legislature repeal- 
ed a power previously given to a judge 
of the county court, and commissioners 
of roads and revenue, to establish a poor- 
house, and required a sale by them of 
all property purchased with that view : 
Held, that the judge and commissioners 
could alone maintain an action against 
the purchasers of the property ; and that 
the county treasurer could maintain no 
action against a purchaser, though di- 
rected to collect the purchase money, by 
an order of the judge and commissioners. 
Harbin v. Stewart, 4 P. 370. 

139. A note made by an executor of 



an estate, and also by a third person as 
his surety, payable to the executors of 
the same estate, cannot be enforced 
against the surety by a suit at law, where 
the principal debtor in his'tharacter of 
joint executor, is one of the plaintiffs. 
Chandler x. Shehan, 7 A. R. 251'. Tin- 
dal V. Bright, Minor, 103. 

140. A note under seal, made payable 
to a person, or bearer, cannot be trans- 
ferred by deliverjr, so as to enable the 
bearer to maintain an action on it in his 
own name. Sayre v. Lucas, 2 S. 259. 
Howell V. HaJlett, Minor, 102. 

141. One who becomes the holder of a 
promissory note, by delivery, after seve- 
ral indorsements, cannot maintain an 
action on it, in his own name, against 
the first indorser, the., payee, on the evi- 
dence of the paper alone. Alday v. 
Jmnison, 3 P. 112. 

. 142. Upon a promise in writing to pay 
to the treasurer of an association, not in- 
corporated, a sum of money as a sub- 
scription, the treasurer can maintain no 
action., Ewiag .v. Medlock, 5 P. 82. 

143. An action of debt cannot be 
brought on an administration bond, 
against a surety, unless a judgment de 
bonis intestatis, has been regularly en- 
tered against the administrator. Faulk 
V. The Judge of Monroe, 2 P. 538. 

144. If a note be transferred in abso- 
lute , discharge of a pre-existing debt, 
then there can be no resort to the origin- 
al note, nor to the original consideration 
of that note: The only recourse of the 
party so accepting it, is on the transfer- 
red note, unless it be forged, or a fraud 
has been practiced. Trotter v. Crockett, 
2 P. 401. 

145. An agreement by parol, extend- 
ing the day" of payment on a promisso- 
ry note, is binding, and suit cannot be 
brought until the time of forbearance 
has expired. .. Ferguson' y. Hill, 3 S. 485. 

146. A person who has paid a note, 
without the request of the maker, which 
lie was not bound either mediately or 
immediately , to pay, cannot recover the 
amount of the ' maker, in an action of 
indebitatus assumj^sit, in his own name. 
Stephens v. lirodnax, 5 A. R. 259. Weak- 
ley V. Bralmn, 2 S. 500. 

147. But it seems, that one who pays 
I'a judgment, without the request of the 

defendant, and takes a transfer of it, may 
sue on the judgment in the name of the 
person t9 whom it was originally due; 



30 



ACTIONS. 



and that the payment and transfer -will 
not be considered such a satisfaction as 
to prevent a recovery. Weakley v. Bra- 
han, 2 S. 500. 

148. At common law, an action could 
not be maintained by an executor or ad- 
ministrator, to recover damages for an 
injury done either to the person, or pro- 
perty of the testator or intestate- Blake- 
ney v. Blakeney, 6 P. 109. 

149. The statute of 1826, does not au.- 
thorize the commencement of an action, 
de novo, by the personal representative, 
for an injury done in the lifetime of the 
testator or intestate. Ih. 

150. An administrator de bonis non, 
cannot sustain an action at law, against 
the representatives of a former adminis- 
trator, to recover nwney received by the 
latter in the course of a partial adminis- 
tration, and not accounted for or paid 
over, Chmnberlain v. Bates, 2 P. ,550. 
(Changed by statute. Clay's Dig. 194, 
sec. 9.) 

151. The administrators of a joint 
maker of a note, cannot be sued jointly 
with the surviving makers. Murphy's 
adtn'rs v. The Branch Bank at Mobile, 
5A. R. 421. 

152. One partner cannot sue his co- 
partner at law, even after a dissolution, 
unless there has been a settlement of 
the partnership accounts, and a balance 
struck. Philips v. Lockhart, 1 A. R. 
521. 

153. P, H, and A, being partners, L, 
with the consent of P, bought out the in- 
terest of H and A in the firm, and be- 
came the partner of P : L agreed with 
H and A, to pay their proportion of the 
outstanding debts of the old firm ; after 
a dissolution of the partnership between 
P and L, P paid the debts of the old firm, 
which L had agreed to pay : Held, that 
he could not maintain an action at law 
to recover the amount of L. lb. 

154. An infant, being a member of a 
firm which purchased lands, cannot re- 
cover back his portion of the purchase 
money, unless a fraud was practiced up- 
on his rights by the vendor. Sadler v. 
JRobmson's heirs, 2 S. 520. 

155. Where a contract has not been 
rescinded, nor otherwise determined, the 
purchase money cannot be recovered 
back. lb. 

15G. A guardian cannot maintain as- 
sumpsit to recover the value of a slave, 
the property of his ward, which has 



been hired by the guardian to the de- 
fendant, and the death of which is alledg- 
ed to have been caused by the negli- 
gence of the hirer ; and this, although a 
promise to pay what an gjrbiter should 
determine, be alledged. Stitherland v. 
Goff, 5 P. 508. (This case is in conflict 
with Tate v. Gilbert, 5 S. & P. 114.) 

157. An action cannot be maintained 
in this state, to recover back money lost 
on a wager. Tvtdall v. Childress, 2 S. 
& P. 250. (Changed by statute. Clay^s 
Dig. 434, sec. 17.) 

158. If one person receives money from 
the government, in the name of another, 
pursuant to a combination between them, 
to defraud the government, the person in 
whose name it was received, cannot re- 
cover it. Boyd V. Barclay, 1 A. R. 34. 

159. A note given by a purchaser of a 
subdivision of the public lands, as a 
compensation to one who, previous to the 
purchase, had settled upon and improv- 
ed the same, is not supported by a con- 
sideration which will authorize a reco- 
very upon it. .Duncans. Hall, 9 A. R. 
128. S. P. Shaw v. Boyd, 1 S. & P. 83. 

160. A mere verbal promise to pay a 
squatter for his improvements on public 
land, not made at the request of the 
promisor, will not sustain an action. 
Shim V. Boyd, 1 S. & P. 83. 

161. A consideration wholly past and 
executed,. will not sustain a promise, un- 
less ithe consideration arose at the in- 
stance of the party promising. lb. 

162. M, being entitled under a law 
of congress, to a pre-emption on a cer- 
tain quarter section of the public lands, 
agreed with T, to abandon his claim, and 
permit M T, to take possession and 
make improvements, so as to entitle the 
latter to a pre-emption, and in considera- 
tion of an amount agreed to be paid 
him, abandoned his claim, and proved a 
pre-emption for M T : In an action by 
M against T for the price of his claim, it 
was held, that the contract was void and 
could not be upheld. Tenison v. Martin, 
13 A. R. 21. 

163. Two persons, H and M, being 
entitled each to enter eighty acres of 
land, of the same quarter section, made 
an agreement, by which M stipulated, 
that if he did not pay H $100 which he 
owed him, by the time he was ready to 
enter his portion of the land, then he 
would permit H to enter the entire quar- 
ter section, II paying M the value, to be 



ACTIONS. 



31 



ascertained by a reference to the neigh- 
bors : Held, that this was a contract for 
the sale of the pre-emption, and being in 
violation of the act of congress of June, 
1838, granting pre-emption rights to set- 
tlers on the public la,nds, was void. 
Hudsoji V. Milner, 12 A. K. 667. 

164. Co-sureties cannot join in an ac- 
tion to recover money paid by them for 
their principal, unless the payment has 
been made out of a joint fund. Parker 
V. Leek., 1 S. 523. 

165. Parties cannot join in an action, 
"where there is no community of interest ; 
therefore, the obligors in two several 
bonds, who had incurred different liabil- 
ities, may not join in a writ of error. 
Jones V. Etlieridge, 6 P. 208. 

166. It is a general rule of law, that 
the party only in whom the lega 1 enter- 
est is vested, can maintain an action for 
an injury done to property: Jones v. 
£ims, 6 P. 138. 

167. All the plaintiffs to an action 
must be competent to sue ; otherwise the 
action cannot be maintained; when, 
therefore, the statute of limitations has 
run against one of several |)arties enti- 
tled to a joint action, it operates as a bar 
to such action. Eardeman v. ^ims, 3 
A. R. 747. 

168. The slave of A secretly rode his 
master's horse to the quarter of B ; the 
horse getting loose, and straying into 
the field of B, where he had set a spring 
gun, to shoot bears, was killed by the 
gun: A cannot maintain an action 
against B for the injury, althaugh the 
field was not inclosed by a lawful fence. 
Bethea v. Tmjlor, 3 S. 482. 

169. A vendor of a slave said to the 
vendee, "if you will prove that the slave 
was unsound at the time of the sale, I 
"will return the purchase money ;" wheth- 
er an action can be maintained on such 
a promise, qucere. Duff v. Ivey, 3 S. 
140. 

170. In general, if there be a special 
agreement for the performance of any 
duty, no action will lie until the duty 
has been actually performed. Gazzam 
V. Kirby, 8 P. 253. 

171. A note or bill, made for the ac- 
commodation of an individual, to enable 
him to raise money by its discount, at a 
rate beyond the legal interest, is usuri- 
ous in the hands of an innocent purchas- 
er, and he cannot maintain ap action on 
it, being void in its original formation. 



Metcfdf V. Watkins, 1 P. 57. (Changed 
by statute. Clay's Dig. 591, sec. 9. See 
Cameron v. Nail, 3 A. R. 158.) 

172. It seems, that when two work- 
men agree with a third person, to build 
a dam and mills, the mills to be built by 
one, and the dam by the other, and the 
whole work to be paid for by the profits 
of the mills for one year, no action be- 
tween the workmen can be brought on 
this contract, for a failure or a violation 

of it. Malioney v. Chandler, 7 A. R. 
700 

/ O.J. 

173. M purchased a carriage of B, 
and for the payment of 150 dollars, part 
of. the price, drew an order in favor of 
B, as follows: "Mr McGuire "will please 
pay, when collected, of fees now due, as 
orphans' court fees, one hundred and 
fifty dollars, and I am to be responsible 
for interest on this order, until paid," 
which was accepted by McGuire. B, at 
the same time, in writing, acknowledged 
the receipt of the order, and other claims, 
in payment of the carriage. It was prov- 
ed that more than $150 was due M, in 
fees, when the order was drawn, but 
that McGuire did not collect them, but 
turned the fees, and fee docket, over to 
one Blount, his succe^or in the oflice of 
clerk of the county court, of which M was 
judge: Held, that in the absence of 
fraud, or mistake in giving the order, 
and executing the receipt, and there be- 
ing no proof that the fees were not due, 
and coifld not be realized, or that M in- 
terfered to prevent the collection of the 
fees, B could not maintain an action 
against M, upon the original considera- 
tion. Moore v. Briggs, 15 A. R. 24. 

174. Where the note of a third person 
is indorsed, and delivered in absolute 
payment of a pre-existing debt, an ac- 
tion cannot be maintained on the origin- 
al debt, but the remedy of the creditor is 
on the indorsement alone, unless the 
transfer of the note is affected with fraud, 
or misrepresentation as to the solvency 
of the maker. Fidford v. Johnson, 15 
A. R. 386. 

175. Whether, or not, the transfer of 
a note, in consideration of a pre-existing 
debt, is an al)solute payment, is a ques- 
tion of fact, to be determined by the ju- 
ry. lb. 

176. If D, on a good consideration, 
promises W to pay a sum of money on a 
note made by W and C as his security, to 
a third party, C has no right of action 



ACTIONS. 



against D, upon the failure of the latter 
to perforra his promise to W. Carter v. 
Darbij, 15 A. R. 696. 



III. Election of Actions; and herein 
WHEN AN Action should be in a 

DIFFERENT FORM FROM THAT ADOPTED. 

177. A recoYery in one' form of ac- 
tion, will bar a suit in another form 
brought on the same cause. White v. 
Martin, 1 P. 215. 

178. After an action of troverin which 
the value of a female slave is recovered, 
a subsequent action brought to recover 
her issue, born pending the first action, 
and not included in it, will not lie. Ih. 

179. Where the plaintiffs moved to 
dismiss a claim to .property upon which 
an execution In theirfavor had been lev- 
ied, and prosecuted a writ of error up- 
on a judgment of nonsuit which follow- 
ed that motion, and the judgment being 
reversed, and the cause remanded, re- 
newed the motion, and prevailed, it was 
held, that these proceedings did not 
amount to an election to try the right of 
property, or a Waiver of the remedy 
against the sheriff for failing to make 
the money on the execution. Leaviti v. 

. Smitli, 7 A. R. 175. 

180. The remedy against the sheriff 
for failing to collect the money due on 
an execution, is not impaired by'.the in- 
terposition of a claim to property which 
he levies the execution upon, whether 
the claim is tried or not. Ih. 

181. A sheriff who has lawfully seiz- 
ed slaves under an attaclunent, is not 
liable in an action of trespass, for refus- 
ing to accept a replevin bond from the 
defendant, although the bond was valid 
and the sureties sufficient. Walker v. 
Hampton, 8 A. R. 412. 

182. If adjoining proprietors enter 
into an agreement, one • to keep up one 
half the fence, and the other the other 
half, an action of trespass cannot be 
maintained by one against the other, for 
an injury caused by an insu.fiicient fence ; 
ihe remedy is for a breach of the con- 
tract. Walker v. Watroxis, 8 A. R. 493. 

183. If a purchaser who has accepted 
a deed for lands, has been defrauded by 
the omission to inform him of an out- 
standing incumbrance created by the 
vendor, an action on the case, and not 



assumpsit, is the proper remedy. Mof' 
gan v. Patrick, 7 A. R. 185. 

184. An action against a sheriff, for 
failing to levy process, cannot l)e sup- 
ported by proof, that the money has 
been collected .by him. Griffin v. Gari' 
aioaij, 6 A. R. 148. 

185. If a contract under seal, is ma- 
terially varied by a subsequent parol 
agreement, covenant on the contract will 
not lie ; the remedy must be on the sub- 
sequent agreement. M' Voy v. TFheeler, 
6 P. 201. 

186. If new terms be introduced into 
a contract, under seal, other duties im- 
posed, or another day appointed for its 
consummation, an action will not lie for 
a breach of its stipulations. lb. 

187. Where the name of the principal 
is not disclosed by the agent when the 
contract is made, it is said, that the 
creditor may charge either of them at 
his election ; and although he may have 
debited the agent, sujjposing him to be 
the principal, he may recover the amount 
of the latter, if the account between the 
principal and agent is not altered to the 
prejudice of the former: But if the ven- 
dor, with a knowledge of who the prin- 
cipal is, makes tlie agent his debtor, he 
is bound by the election, and cannot 
look to the principal for payment. 
Cleakmd v. Walker, 11 A. R. 1058. 

188. One co-surety in a detinue bond, 
cannot maintain an action of assumpsit 
against another, who having possession 
of the ■■property replevied by the bond, 
refuses to let it be delivered in discharge 
thereof, and delivers it to their principal, 
by Avhom it is carrried beyond the limits 
of the.state, so that the sureties sustain a 
loss. Kent v. Long, 8 A. R. 44. Same 
case, 6 A. R. 100. 



rV. Action merged in a Felony. 

189. An action of trespass for killing 
a slave, cannot be maintained, unless 
the defendant has been tried for the fel- 
ony. Mid(Ueton\. Holmes, 2> P. 424. Mor- 
gan V. Eltodes, 1 S. 70. McGrciv v. Ca- 
to's cx'rs. Minor, 8. 

190. And if the slayer be acquitted by 
collusion of the master, the master can- 
not sustain an action for the trespass. 
Morgan x. piiodes, 1 S. 70. 

191. The owner of stolen goods, may 



ACTIONS. 



33 



maintam detinue or trover against a 
purchaser from the thief, although the 
latter has never been prosecuted, and al- 
though the owner had jusit reason to be- 
lieve that the goods were stolen from him 
by the individual named as the thief. 
Beazley v. Mitchell, 9 A. R. 780. 



V. Of CoiSfSOLIDATING AcTIONS. 

192. Where several suits have been 
brought between the same parties, which 
might have been comprised in one writ, 
it is the duty of the court, on motion of 
either party, to order a consolidation of 
the suits,, on the payment by the party 
making the motion, of all the costs which 
have then accrued, except in one suit, 
vmless the defenses to the actions pro- 
posed to be consolidated, are diifeirent. 
Powell V. Gray, 1 A. R. 77. 

193. Where several suits are depend- 
ing between the same parties, on appeal 
or by certiorari, from the judgment of a 
justice of the peace, the court may, at 
the instance of either party, direct a con- 
solidation; unless the party objecting, 
can show, that he will in some way be 
prejudiced thereby. Cooper v. Mdcldan, 
6 A. R. 431. 

194. When several suits, by material 
men, and laborers, commenced before a 
justice of the peace, are removed by ap- 
peal into the circuit court, the refusal of 
that court to consolidate the suits, caniiot 
be J-'e vised in this court, although a con- 
solidation would have been properly or- 
dered. Monroe v. Brady, 7 A. R. 59. 

195. A consolidation, af several ap- 
peals for money demands, between the 
same parties, will authorize the court to 
render a judgment for the entire amount 
against the sureties in the appeal bonds, 
if the same persons are sureties in all the 
bonds. Wetumpka and Coosa Rail-road 
Co. V. Bimjham, 5 A. R. 05 7. 



VI. What Actions do, or do not sur- 
vive. • . ' 

196. A suit against husband and 
wife, for a tort, does not abate by the 
death of the husband, unless the tort was 
committed by«thc wife in- his presence, 

1—5 



or by his coercion. Bouge v. Pearce, 13 
A. R. 127. 

197. A suit commenced against one 
partner of a firm, will survive against his 
personal representatives, and may be re- 
vived against them by sci. fa. Travis v. 
Tartt, 8 A. R. 574. 

198. When the person for whose use 
a suit is instituted, dies pending the suit, 
it is not necessary that his personal rep- 
resentatives should be made parties, but 
the suit proceeds in the name of the 
nominal plaintiif. Graj/ v. Turner, 7 A. 
R. 30. 

199. If the nominal .plaintiff die, the 
action abates as to him, and is continued 
in the name of the real plaintiff. Bates 
V. Terrell, 7 A. R. 129. 

200. If the defendant die, pending an 
action on the case, . brought to recover 
damages, for a fraud in the exchange of 
horses, it cannot be revived against his 
administrator. Coker v. Crosier, 5 A. R. 
369. 

201.. An, action of debt quitam, to re- 
cover a penalty for issuing a marriage li- 
cense to a minor, without the consent of 
his parent or guardian, abates by the 
death, of the plaintiff, and cannot be re- 
vived by his personal representative. 
Fairley v. Davis, & A. R. 375. 

202. Whether it might not be contin- 
ued by the state, qiicere. lb. 

203. At common law, actions which 

, arise from contracts, for the payment cf 
money, or for the performance of duties 
where property is in cjuestion, sur"\dve to 
the executor or administrator; actions 
for injuries to the person, character or 
property of individuals, die with the per- 
son. Nettles y. Barnett, 8 P. 181. 

204. The statutes modifying this rule, 
do not extend relief against the executor 
or administrator, for an injury to per- 
sonal property committed by his testator 
or intestate. lb. 

205. The' statute of 1820, provides 
tiiat all actions of trespass quai-e clausum 
fregit, and actions of trespass to recover 
damages fur injuries to personal proper- 
ty, may, if the plaintiff dies, be revived 
by his exiecutor or administrator, in the 
same manner as actions on contracts, 
but does not apply to defendants. lb. 

200. Where personal estate has been 
converted by the testator or intestate, the 
action of tr(jVer can be maintained ; if it 
has been sold, an action for money had 
and received on the implied contract^ 



34 



ACTIONS. 



waiving the injury ; and if the property 
remains in specie, in the h-ands of the 
personal representative, he cah be made 
personally answerable for it. lb. 

207. But an action of trespass proper, 
does not survive against the representa- 
tive of the vrrong-doer, where commenced 
in his lifetime; and the representative 
cannot make himself a party to the suit. 
Ih. 

208. The statute of 1826, does not au- 
thorize the commencement of an action, 
by the personal representative, for an in- 
jury done in the lifetime of a testator or 
intestate. Blakeiiey v. ^Blalieney, 6 P. 
109. 

209. An administrator cannot main- 
tain an action quare clausum fregit, for 
an injury done to the intestate's close in 
his lifetime. lb. 

210. Where the plaintiff in an action 
of trespass to try title, dies, jyendente- lite, 
the suit does not abate : But if Ijrought 
for the recovery of the freehold, its pros- 
ecution may be continued in the name of 
the plaintiff's heirs;, and if a term of 
years, or mere chattel interest is sought 
to be recovered, in the 'name of his per- 
sonal representatives. The State, ex rel. 
Nabor^s heirs, 7 A. R. 459. 

211. A proceeding against a constable, 
by motion, for failing to make money 
upon an execution, when he could' have 
done so by the use of d^e diligence, can- 
not, if the constable dies pending the mo- ■ 
tion, be revived against his administra- 
tor, because, the revival of the suit is not 
provided for by statute, Logan v. Bar- 
elatj, 3 A. R. 361. 



Vn. How REPRESEXTATIVES OP DECEASED 
PLAINTIFFS A^D DEFElfiqANTS ARE 
MADE PARTIES. . . .\-." ;' / ' '.' ; 

212. A judgment by motion against 
the administrator of a sheriff, for a de- 
fault, will be sustained, Avhen the motion 
having been made originally against the 
sheriff, is revived against the adminstra- 
tor by his consent. King v. 'Arrnstronq, 
14 A. R. 293. . ^ 

213. A suit commenced" against one 
partner of a firm, will survive against his 
personal representatives, and may be re- 
vived against them by sci. fa. Travis v. 
Tavtt, 8 A. R. 574. 

214. When the creditor omits to pro- 



I ceed against the personal represe,htatives 
of one deceased, for eighteen months, and 
omits also for the same time to present 
his claim, the statute of non-claim is a 
good bar to the sci. fa. lb. ■ 

215. If this defense is asserted by an-' 
stfer, instead of plea to the sei. fa., the 
plaintiff should demur, but the court 
should not, without action by the plain- 
tiff, render a judgment on the sci. fa., 
disregarding the ansAver. lb. 

216. When a party- dies pending a 
suit, a sci. fa. to revive it, may, by stat- 
.ute, issue at any time to his personal 
representative. Farley's adm'r v. Nelson, 
4A. R. 184., 

217. A sci. fa. issued against the rep- 
resentatives of a deceased person, in or- 
der to make them parties to a suit, must . 
designate them by name, and state in 
what capacity they are representatives. 
Caller's heirs v. IMone, 1 S. & P. 305. 

218. The death of a plaintiff may be 
suggested, and his representative made 
a party to the suit, while the trial is pro- 
gTCssing: If the defendant dies, his rep- 
resentatives may make themselves parties 
in a similar manner, or the plaintiff may 
bring them, into court by sci. fa. Hatch 
v. €ook, 9P; 177.^ ., ■- 

219. If a party 5ies after judgment, 
the clerk cannot issue a writ of error, 
and make such persons as appear froni 
letters of administration to be the repre- 
sentatives of the deceased, defendants to 
it ; but the plaintiff should suggest the 
death, in this court, produce a copy of' ' 
the letters of administration, and of the 
record, and either move for a sci. fa. 
against the representatives, • to show 
cause why they should not be made de- 
fendants, and a writ of error awarded 
from this court, or for a certiorari to 
bring tip the record. Sewall v. Bates' 
adm'rs, 2 S. 462. 

220. If it is proposed to revive a suit 
in the name of an administrator, as 
plaintiff, the defendant may require the 
production of the letters , of administra- 
tion; but if he pleads the general issue, 
he cannot require them to be adduced to 
the jury. Curry v. Paine, 3 A. R. 154, 

,221. When one becomes a party to a 
suit, as the administrator of him by 
whom 'it was instituted, it is unnecessary 
to set out the letters of administration ; 
the defendant is presumed to be always 
before the court, and has the opportunity 
to controvert the right of flie person who 



ACTIONS. 



35 



proposes to become a part}-, to make 
himself such; Linerarit*^. Frowner, 2 
A. K. 150. 



■^ 



YIII. Dividing, ok Spmtting causes of 
Action. 

222. A contintious running account 
between the same parties, .is an entire 
thing, not susceptible of division, the 
aggregate of all the- items l^eing the 
amount due-; and therefore a recovery of 
a part by suit, will bar an action for the 
residue. Oliver v. Holt, 11 A. R. 574. 
Lock V. lEller, 3 S. & P. ,14. De Sjjha 
y.^Eenrij, 3 P. 132. 

• 223. This rule applies to a physician's 
account, who, having sued for and recov- 
ered a part, cannot maintain an action 
for the residue of the account. Oliver v. 
Holt, 11 A. R. 574. 



IX. Of Qui Tam Actions. 

224. An action of debtg'zfi tarn, to re- 
cover a penalty for issuing a marriage 
license to a minor, without the consent 
of his parent or guardian, al^ates by the 
death of the plaintiff, and cannot be re- 
vived by his personal representative-. 
Fairley v. Davis, 6 A". R. 375. ' . ■ 

225. AVhether it might not be contin- 
ued by the state,, g?«<:ere. lb. «• • 

226. In a qid tain action against the, 
clerk of the county court for issuing' a li- 
cense to marry a female under the age 

• of (eighteen years, without the consent- of 
the parent or guardian, the plaintiff is 
not bound to prove the negative aver- 
ment of the declaration, that no consent 
was given. Blann v. Beal, 5 A. R. 357. 

227. The record of the consent of the 
parent or guardian, which the clerk is, 
by the statute, required to make, may be 
given in evidence by him, to show prima 
fade, that consent was given. Ih. 

228. The offense of usury is not com- 
plete, so as to enable a common informer 
to sue for the penalty given hj the stat- 
ute, until the money has been taken, ac- 
cepted or received. TJnson v. Austin, 4 
A. R. 124. 

229. The act of 1819, which prescribes 
the rate of interest and prohibits the 
taking of usury, impliedly abrogates the 



common laAV, which allowed the borrow- 
er to recover back in indebitatus assump- 
sit, all interest he had paid alcove the 
rate prescribed: Since the passage of 
the statute, he can only maintain a qui 
tarn action in such case, and then the 
amount recovered by him " shall be paid 
into the treasury for the use of the state." 
Carlisle v. Gray, 10 A. R. 302. 

230. No judgment can be I'endered 
in an action brought to recover a penalty 
by a common informer, after the repeal 
of the statute giving the penalty, unless 
some special provision- for that purpose 
be made by the statute. Pope v. Lewis, 
4 A. R. 487. (Overruling Taylor v. 
RusJiing, 2 S. 160, on this point.) 

231. The commencement of a suit for 
the penalty, does not give a vested right 
to it, but -will entitle the party so suing 
to a preference over one suing subse- 
q-uently. lb. (Overruling Taylor v- 
BusJiinjjf, 2 S. 160, on this point.) • 

232. When a penalty has accrued to 
an 'individual under a statute, it is a 
vested right, and the repeal of the stat- 
ute does not divest it. Taylor v. RusJi- 
ing, 2 S. IGO. (Overruled in Fop)e v. 
Letvis, 4 A. R. 487.) ' 

233. The penalty provided by law, for 
keeping a billiard table for play, without 
a license, can only be enforced by a qui 
tarn action at the suit of an informer. 
T/ie 'State v. Fillyaw, 3 A. R. 735. 

S34. In an action for the penalty for 
voting without a legal qualification, the 
list of voters taken as required by statute 
is the best evidence to show who voted. 
•Olive V. O'Reily, Minor, 410. 

235. The act of voting at an election is 
not complete until the ballot is put into 
the box ; and it cannot legally be proved 
that a person voted, unless his name is 
entered on the list kept by the clerks. 
Blaclmell v. Thompson, 2 S. & P. 348. 

236. No forfeiture is incurred by vo- 
ting without qualification, unless the vo- 
ter's name be inserted en the list of per- 
sons voting. lb. 

237. A voter's name on the list of per- 
son's voting, is prima facie evidence of 
his having voted. lb. 

238. The insertion of a voter's name 
on the list, is not the Vjote, but the high- 
est evidence of the fact that he voted ; 
and the list must be produced, or its loss 
or destruction shown, before parol testi- 
mony of the fact of voting, is admissibla. 
lb. 



36 



ACTIONS.— AMIIRALTY. 



239. The term "museum," in the act 
of 1827, " to raise a revenue for the sup- 
port, of government,'' comprehends an 
exhibition of living - animals ; and the 
owners of such exhibitions are liable' to 
the penalty imposed by that act, for fail- 
ing to take out a license, authorizing the 
same. Bosticlc v. Purely, 5 S. & P. 105. 



X. CoilJIEXCEMENT Of AcTIONS. 

240. The suing out of the writ, is the 
commencement of the action. Cox v. 
(7oo/^er, 3 A. R. 25G. 



XI. Action on the Case. 

241. A father may sue in case,- for an 
injury done to an infant cliild,(fiien liv- 
ing with him and engaged in his service) 
by dogs, permitted by the defeudaiits to 
run at large, after a knowledge by the 
defendants, that such dogs were accus- 
tomed to bite mankind. - Durden v. Bar- 
outt, 7 A. R. 169. 

242. An action on, the case, lies^against 
a sheriff, for the Qscape of a defendant, 
under proceedings, for an unlawful de- 
tainer, notwithstanding the penalty giv- 
en by the act of 1805 -. The remedy given 
by the statvite is cumulative. , Baivyer v. 
Balleic, 4 P. IIG. 

243. One co-surety in a detinue bond, 
may maintain case against anotherj whp 
having possession of the^ j^roperty re- 
plevied by the bond, refuses to let it be 
delivered in discharge thereof, and de- 
livers it to their principal, by whom it is 
carried beyond the limits of the state, so 
that the sureties sustain a loss. Kent v. 
Long, 8 A. R. 44. . ■ 

244. An action on the ease, cannot lie 
sustained against a warehouseman, for 
goods robbed, unless there be some neg- 

» ligence. Moore \. The Mayor of Mobile, 
1 S. 284. 

245. A count in case is good, which 
alledges, that the plaintiff delivered to 
the defendant certain negroes to be hired 
out by him as auctioneer (upon a reason- 
able reward,) for twelve months, but to 
be delivered to the hirer upon his giving 
good security; and that the defendant 
did dispose of them to a certain person 
jFor that time, fur $292, without securitv> 



in consequence of which the hire remains 
unpaid, and^- wholly lost. Blick v. 
Briggs, 6 A. R. 687. 

246. Where a declaration alledges, 
that it was agreed between plaintiff and 
defendant, that the latter would be the 
surety of a third person for the sum of 
$292, for the hire of certain slaves, if the 
plaintiif would credit that person there- . 
for; that the plaintiif .at defendant's spe- 
cial instance did give the credit, yet the 
defendant refused to become his surety, 
by reason whereof, the said sum remains 
unpaid, and is and will be wholly lost 
to the plaintiff, it discloses a cause of 
action for which case will lie, and is not 
bad, because it does not aver that the 
agreement was in writing. Ih. 

247. A wrong-doer is responsible for 
all the consec|iiences which flow imme- 
diately from his wrongful or negligent 
act's; and this rule is the same ill Civil 
and- in criminal cases ; and the responsi- 
bility is not relieved by the fact, that the 
.consequences of the injurious act, could 
have been- prevented hj the care or skill 
of the sufferer. Fhares. v. Steivart, 9 
P. 336. 

248. In an action for the negligence 
of defendant, it may be shown in de- 
fense, that the injury was the result of 
negligence, also, on, the part of plaintiff. 
Bethea v. Taylor, 3 S. 482. 

249. In an action on the case, by the 
vendee, against the vendor of land, to 
recover - damages for falsely represent-, 
ing, that the tract embraced a certain 
designated portion- of good land, where- 
by the vendee was induced to make th« 
purchase, it'is not necessary to prove, 
that the vendor knew the representation 
to be false, at the time he made it. Mun- 
roe V. Pritcliett, 16 A. R. 785. 



ADMIRALTY. 

I. Jurisdiction. 

II. Of the Bond, or Stipulation, De- 
cree thereon, and Rights of the 
Stipulators. 

III. Liens. . 
lY. Practice. 

(«) Libel. 

[b ) Answer and Claim. 



ADMIRALTY. 



(c) Monition. 

{d ) Seizure and Custody. 

(e) Trial. 

(/) Decree.' 

(g) Appeal, and "Writ of Error. 



I. JURISDICTIOX. 

1. The jurisdiction confen-ed upon the 
county courts of this state, l)y'the stat- 
utes of 182-i and 1836, is not in violation 
of the constitution of Alabama. Eich- 
ardson v. Cleaveland, 5 P. 251. 

2. Nor does this jurisdiction conflict 
■vyith the admiralty and maritime juris- 
diction, vested by, the constitution of the 
United States, in the national courts. lb. 

3. A justice of the peace has jurisdic- 
tion of libel suits, under the acts of 1824 
and 1841, by materitxl men, against, a 
coasting steam-boat, when the sum claim- 
ed is not more- than fifty ' dollars ; and' 
this jurisdiction is not aifected by the 
fact, that the boat is employed in carry- 
ing the mail of the United States. Mon- 
roe V. Bfcuh/, 7 A. R, 59. 

4. When an appeal is taken, in an 'ad- 
miralty suit, from the judgment of a jiis- 
tice of the peace, rendered in the city of 
Mobile, it cannot be objected in the cir- 
cuit court, that the justice was elected 
for- a. county beat, and therefore under 
tl^e statute, disqualified to act in the 
■city. lb. 



II. Or THE BoxD OR Stipulatiox, Db- 
cree thereon, and rights of the 
Stipulators. 

5. The statute of 1841, authorizing the 
replevy of a boat seized under adiniralty 
process, is not a repeal of the act of 1836, 
on the same subject. The latter act au- 
thorizes all persons to intervene, as 
claimants; while the act of 1841, pro- 
vides the mode in which the owner may 
obtain possession of tlie boat. House v. 
Jayne, 14 A. R. 727. 

6. The sherifii" may take bond, with 
condition to deliver the boat, on the first 
day of the term ; and if then delivered, 
the sheriff is not required to retain the 
boat in his custody, but may receive a 
new stipulation, and redeliver the l)oat. 
lb. 728. 



7. The stipulators cannot object, that 
by the condition of their bond, it might 
be discharged, either by the payment of 
the judgment, or the return of the boat. lb. 

8. The'rendition of a judgment against 
the stipulator, is an incident-to the prin- 
cipal catise,- though the bond may not be 
in conformity with the statute, if it is 
good as a common law obligation. lb. 

9. it is premature to render a judg- 
ment upon. a. stipulation,, conditioned 
for the delivery of a steam-boat tp the 
sheriif, at the same time that the boat is 
condemned. .'Sett v.' Thomas, 8 A. -R. 
527. , ■. ■ • .' 

10. If a bond for .the delivery of a 
steam-boat seized under process, in a li- 
bel suit, is got)d.as a common law bond, 
it may be proceeded on as a stipvilation, 
although it does not conform'to the stat- 
ute., lb.. 

'11. A bond taken l)y the sheriff, con^ 
ditioned to pr-oduce the steam-boat seiz- 
ed, if judgment of condemnation shall be 
given and execution issue, is not the one 
prescribed by the statute, and therefore 
the lieriiipon the boat is not discharged 
by' it; and the "court may proceed to a 
condemnation of the boat, and order its 
sale.-, Bieriie v. The Sleam-boat Tjiumjjh, 
2 A. R. 738. . 

12. A statute provided, that where a 
st-eam-boat was seized under process is- 
sued' upon a proceeding in the nature of 
a lil3el in admiralty, it should be lawful 
for the. master to,.euter into a bond with 
sufficient sureties,, to answer all the de- 
mands which should be filed against the 
boat, and that theboat should be releas- 
ed from such lien ; that the clerk of the 
court in which the libel was filed should 
take the bond, and it should not be void 
for want of form, but should be proceed- 
ed on and recovered according to the 
' plain intent and meaning thereof: Held, 
that a bond taken under this statute, 
was neither void nor voidable, because it 
did not show, that the obligors or some 
one of them, were claimants of the boat, 
or otherwise interested in the litigation 
respecting it; or because it was made 
payable to the officer who executed the 
order of seizure, instead of the libelant; 
or because it provided for the return of 
the boat to the obligee, instead of stipu- 
lating, that the claimant should pay the 
libelants such judgment as should be 
rendered on the libel ; or because it did 
hot provide,- that upon the payment of 



ADMIRALTY. 



such decree as might he rendered, the 
obligors should be discharged from their 
obligation to return the boat : Such a 
stipulation, if voluntarily entered into, 
and hot extorted colore officii, may be en- 
forced as a common lawbond. Whitsett 
v^ WomcLck, 8 A. R. 466. 

' 13. Whether a bond taken by a sher- 
iff, who had seized a boat under process . 
issued upon a libel in the nature of an 
admiralty proceeding, would be void, be- 
cause he agreed, that the obligors might 
navigate the boat to a point not very re- 
mote, and unlade its cargo, as the master 
had undertaken to do, or whether the obli- 
gors would not be estopped from setting 
up such an agreement, to impair their 
obligation, cjucere. lb. 

14. Where a boat,- libeled and seized, 
was claimed by a third person, slibse- 
quent to the. decree of condemnation and 
order of sale, who executed a M5ond to 
prosecute a writ of error, it was held, 
that as the bond had no elfect l)ut to ar- 
rest the proceedings until the decision in 
error, a bond subsequently executed to 
the libelants, in consideration' of" relin- 
quishing their lieii, conditioned to pay 
the judgments in their favor should tliey 
not be reversed, was good as a common 
law bond. Gayle v. Martin, 3 A. R. 593. 

15. A decree of condemnation against 
a vessel seized, may properly be render- 
ed, preliminary to a decree against the 
stipulators. Livingston v. .Steam-hoat 
Tallapoosa, 9 P. 111. (Overruling liicJi^ 
ardson v. Cleaveland,, 5 . P. 252, on this 
point.) 

16. But where a. valid* stipulation is 
entered into, a decrqe of condemnation, 
foUoAved by an order of sale, would be 
erroneous. lb. . 

17. Stipulators cannot question the 
correctness of a decree of condemnation ; 
and if they appeal, they are confined to a 
review of the judgment so far only as 
they are themselves concerned. 16. 
Witlierspoon v. Wallis, 2 A. R. 667. 

18. A stipulation entered into by con- 
signees, in their own names, to pay the 
average on goods, is a personal obliga- 
tion, which does not bind the owner ; nor 
does it, Avithout satisfaction, discharge 
him from lialjility for contribution. Eck- 
ford V. Wood, 5 A. R. 136. 

19. The master of a vessel, is author- 
ized as agent of the owners of it, or of the 
jcargo, to enter into a stipulation, with 
surety, in c>rder to liljcrate them from a 



libel for salvage; and the sureties, are 
in effect, sureties for the owners, and if 
they pay the decree for salvage, may re- 
cover from them, the amount they are 
respectively bound to contribute. . lb. 



III. Liens. 

20. The bond- in 'admiralty proceed- 
ings, when taken in pursuance of the 
statute, is a discharge of the specific lien 
acquired upon a vessel, by seizing it. 
Richardson v. Cleaveland, 5 P. 252. 
Witlierspoon v. Wallis, 2 A. R. 667. Liv- 
ingston V. Steam-boat Tallapoosa, 9 P. 
116. 

21. But a bond which does not con- 
form to the requirements of the statute, 
does not discharge the lien upon the ves- 
sel seized. Bierne v. The Steam-boat Tri- 
umph, 2 A, 'R.TdS.' ' , 

22. The lien given on a steam-boat, by 
the act of 1836; for failing to deliver 
goods as- specified in the bill of lading, 
continues until the first day of July next 
after the non-delivery, according to the 
terms of the bill. Stmm-hoat RobeH Mm'- 
ri^ V. Williamson, 6 A. R. 50. 

23. When goods are damaged, the lien 
thus created, is not waived by their ac- 
ceptance by the consignee, or owner ; nor 
by a receipt specifying that they have 
been received in good order : To make a 
waiver, there must be a knowledge of the 
injury, and an intention to abandon the 
remedy; or solne contract, which is in- 
consistent with the existence of the 
lien. lb. 

24. The statutes of 1824 and 1836, 
giving ^ lien by proceedings in the na- 
ture .of admiralty process, upon vessels, 
steamboats, &o., are to be construed in 
pari materia. Bichardson v. Cleaveland, 
5 P. 251. 

25. A ^.'ytt. levied on a vessel, will 
not divest a 'pre\'ious lien, acquired by a 
libelant in admiralty. Eeed v. Fawkes, 
9 P. 623. 



IV. Practice. 

(a) Libel. 

26. A libel which alledged, that the 
libelants were merchants, that, they fur- 



ADMIRALTY, 



39 



nished stores, provisions, merchandise, 
and materials, to the steam-boat Ophe- 
lia; that the amount was justly due by 
the master and owners ; that the boat was 
lib ' duly enrolled, registered and licensed, 
' and that the articles were furnished at 

divers times, from the seventh day of 
January, 1835, to the twentieth day of 
April, 1836, at the special request of the 
master and owners of the boat, as- per 
■ account therewith filed, was held suffi- 
cient. Richardson v. Cleaveland, 5 P, 
251. ■ . ■ , 

27. Where an answer under path is 
required, it should be so stated in the 
libel. Ih. ^ M 

28. Objections' to the sufficiency of a 
libel in an admiralty suit, should be 
made in the court below, and are too late 
when taken in the appellate court.- Mon- 
roe V. Brady, 7 A. K. 59. 

29. And exceptions are never allowed, 
unless they are raised on specific allega- 
tions. Witherspoon\.Wallis,2A.'R,.^Q1,. 

(&) Ansioer and Claim. 

30. When a steam-boat, or other craft, 
is proceeded against according to the 
course of the admiralty, to enforce a lien, 
under the act of 1836, entering into a 
stipulation to perform the decree, which; 
by statute discharges the lien, does not 
make the stipulators parties to the suit. 
Witherspoon v. Waliis, 2 A. R..667. 

31. One who claims a ship or other 
thing, which is the subject of a proceed- 
ing in rem, must put in his claim, upon 
oath, averring, in positive terms, his pro- 
prietary interest. Read v. Oioen, 9 P. 
180. Ricliardson v. Cleaveland, 5 P. 252. 

32. And an agent may Ido required to 
prove his authority, before he can be ad- 
mitted to put in his claim ; and ijnot proved 
when required, it furnishes matter of ex- 

» ' ception, which may be insisted upon l^y 
the adverse party for the dismissal of the 
action. Read v. Oioen, 9 P.- 180. 

33. And a claim impi-operly admitted, 
may still be contested, by suitable ex- 
ceptive allegations. . Ih. 

34. But if the claim is admitted with- 
out objection, and allegations or plead- 
ings to the merits are subsequently put 
in, it is a waiver of the preliminary in- 
quiry, and an admission, that the party 
is rightfully in court, and capable of cqn- 
testing the merits. Ih. 

35. The' answer of a respondent to a 



libel, must be made under oath, if the li- 
bel expressly requires it to be so made. 
Richardson v. Cleaveland, 5 P. 252. 

36. But, if the libel does not require 
the answer to Ije on oath, the court can- 
not reject the answer, because not sworn 
to. 16. _ 

37. The ansvver, in a case i,n admiral- 
ty, denying the allegations of the peti- 
tion, and concluding to the country, is a 
tender of an issue, to the jury, which can- 
not' be tried by the court. Gayle v. 
Preston, « P. 291, 

38. An^ the tender of such an issue, 
is a request for a trial by jury, and pre- 
cludes the court from determining the 
truth of the facts put in issue. lb. 

39. The master of a vessel is author- 
ized to contest a claim for salvage, and 
to liberate the vessel and cargo, on stipu- 
lation, as the agent of the owners of the 
cargo, or.of the vessel, the latter having 
the right to retain the cargo, until the 
payment .of the freight. Sureties in 
such a stipulation, are in effect, sureties 
for the owners of the goods and vessel, 
they being primarily liable for the pay- 
ment of the decree ; and paynient by the 
sureties is so much money paid for each 
contributor;, as his proportion comes to. 
Eckford y.\Wood,.5 A. R. 136. 

40. When no claim is interposed, a 
decree of condemnation is a matter of 
course; and if a stipulation is entered 
into under the statute, a judgment is 
rendered against the stipulators, accord- 
ing to the condition of their stipidation ; 
and they will not be permitted to inquire 
into the correctness of the decree of con- 
demnation, except so far as it may be 
necessary to correct any error in the 
judgment against them, as stipulators. 

Witherspoon v. Waliis, 2 A; R. 667. 

(c) Monition. 

41. The omission to issue or serve a 
wi'it of monition, in a suit commenced 
to enforce a lien against a steam-boat, is 
not a sufficient cause, according to the 
course of admiralty praetice, to dismiss 
the libel. Bierne v. The Steam-boat Tri~ 
umph,2A.^.n%. _ ; 

42. If no monition is issued, or if one 
is issued, and its service is irregular or 
defective, it is entirely competent for the 
court to make such order, as will efiec- 
tuaily protect the interests of those wha 
arc not before it. lb. 



40 



ADMIRiVLTY. 



43. In the aliscnce of any rules of 
court, directing the j^ractice, it is proba- 
ble, that the- mere taking of the steam- 
boat into possession, by the executive of- 
ficer of the court, ought to be considered 
a notice to all ^he world, as the jurisdic- 
tion over the boat, commences, with its 
seizure. lb. * • • 

44. The interventioli of a claimant-of 
a vessel libeled, and his entering into 
stipulation to pay and satisfy the decree, 
■will render it unnecessary to make moni- 
tion, so far as the claimt^nt is- concerned, 
and the libel will not be dismissed for the 
failure to make monition, although the 
order of seizure directs it to be made, 
generally. Williamson v. Brooks, 3 A. 
K. 32. 

(d) Seizure and Custody. 

45. In the absence of any rules of 
court directing the practice, the^mere 
taking of a steam-boat into possession, by 
the executive officer of the Court, -ought 
to be considered as notice to all the world, 
as the jurisdiction over the boat, . com- 
mences with its seizure. Bierne v. Tjie 
Steam-boat Triumpli, % A. R. 738. 

(e) Trial. 

46. The answer, in a case in admiral- 
ty, denying the allegations of the peti- 
tion, and concluding to the country, is a 
tender of an issue to the jury, which can- 
not be tried by the cou.rt. Gaijle\.PreS' 
ton, 8 P. 291. ■ ■ 

47. And the tender of such an issue, 
is a request for a trial by jury, and pre- 
cludes the court from determining the 
truth of the facts put in issue. 25. 

48. The a^t of 1824, contemplates, 
that the trial of all issues shall be had 
before a jury, at the instance of either 
party ; and on such trial, {he evidence in 
the cause should be submitted to the ju- 
ry, independent of the oaths of the par- 
ties. Richardson v. Clcavelaiid, 5 P. 251. 

(f) Decree. 

49. When several libelants have join- 
ed in their libel, because of their com- 
mon pursuit of 'the same ship, whenever 
tlieir interests become severed by de- 
crees, each decree becomes distinct and 
independent, and as such, must be ap- 
pealed from. Read v. Ouru, 9 P. 180. 



50. The same rule obtains where sev- 
eral claims are interposed. lb. 

51. When no claim is interposed, a de- 
cree of condemnation, is a matter of 
course; and if a stipulation is entered 
into under the' statute, a judgment is 
rendered against the stipulators accord- 
ing to their stipulation. Witlierspoon v. 
Wallis, 2 A. R. 667. 

52. The omission to ' render a judg- 
ment of condemnation, against a steam- 
boat,- when an appeal is taken on behalf 
of the owners, is not an error of which 
the parties to the appeal bond will be 
permitted to complain, as they cannot be 
prejudiced by it. Such an omission is 
clerical, and may be corrected on mo- 
tion, if necessary. Monroe v. Brady, 7 
A. R. 59. 

53. Any person interested in a ship, 
or thing proceeded against in admiralty, 
may come within a year from the time of 
a decree rendered by default, and or ' 
giving security, paying all the costs, and. 
showing a sufficient, cause for his pre- 
vious default, be admitted to defend. 
Bead v. Oit-en, 9 P. 180. 

54. And it is the usual practice on 
defaults, before a sale is permitted, ta 
require security of the libelant, to an- 
swer for the sum received, to any per- 
son claiming a right, or presenting his 
interest within a year. lb. 

55. A bond taken by the sheriff, con- 
ditioned to produce the steam-boat seized, 
if judgment of condemnation shall be 
given, and execution issue, is not the one 
prescribed by the statute, and therefore, 
the lien upon the boat is not discharged 
by it; and the court may proceed to a 
condemnation of the boat, and ' order its 
sale. Bierne v. The Steam-boat Triumph, 
2 A. R. 738. 

(g) Appeal, and Writ of Error. 

56. The statutes of this state, author- 
ize the prosecution either of an appeal, 
or writ of error, to all final judgments 
and decrees of the circuit and county 
courts, admiralty cases as well as others. 
Livinqston \. Steam-boat Tallapoosa, 9 
P. 111. 

57. And in such cases, an appeal is 
the most appropriate remeidy, as the 
claimant can thus suspend the execution 
of the decree, both, as to himself and the 
stipulators. lb. y 

58. When several suits, by material 



ADVANCEMENT. 



41 



men, and laborers, commenced before a 
justice of the peace, are removed by ap- 
peal into the circuit court, the refusal of 
that court to consolidate the suits, can- 
not be revised in thisxcourt, although 
a consolidation would have been prop- 
erly ordered. Monroe v. B.radijy 7 A. 
E. 59. 

59. The omission to render a judg- 
ment of condemnation against a steam- 
boat, vrhen an appeal is taken on behalf 
of the owners, is not an error of .which 
the parties to the appeal bond will be 
permitted to complain, as ,they'cai*not 
be prejudiced by it: Such an omission 
is clerical, and may be corrected on mo- 
tion, if necessary, lb. . , . 

60. A writ of error which seeks to I'e- 
verse several independent dee'reeB, will 
be disniissed. Eeacl v. Oweiiy^.V. 180,. 



ADVANCEMl^NT. 

1. A purchase by a parent in the 
name of his child, is, prima Jacie, an ad- 
vancement ; but the presumption may 
be rebutted by evidence, manifesting a 
different intention ; which evidence, may 
consist of the cotemporaneous acts, and 
declarations of the parent. Butler v. M. 
Ins. CojH2)ani/, U A. 11,177. 

2. A father subscribed for shares of 
stock in the name of several persons^ 
and among therest, of his daughter, and 
executed his notes, and a mortgage for 
the payment of the money for the stock, 
in a short time; before the payments 
were due, the notes and mortgage were 
canceled, and a firm, of which the father 
was a member, became bound for the in- 
stalments, and afterward paid them: 
Held, that the mere subscription in the 
name of the daughter, did not invest her 
with a title to the stock; that the subse- 
quent assumption of the del>t, and pay- 
ment by the firm, with the father's as- 
sent, repelled the presumption, that it 
was intended as an advancement to her ; 
that she was a mere trustee of the firm, 
which was the owner of the stock ; that 
an assignment of the stock by the guar- 
dian of the daughter, to the firm, was 
void; and, that the daughter had no such 
1—6 



interest in tlie stock, as would pass to 
the assignee of her husband, who had 
become a bankrupt. lb. 

3. Where a father executed a deed, 
(which was delivered and recorded,) by 
Avhich, in consideration of na.tural love 
and affectibn,' he conveyed to each of his 
two daughters, a.female slave, but reserv- 
ed the 'use of the slaves to himself for 
life, and to' his wife "for her life, if she 
survived him, it was held, that the deed , 
was ■ not testamentary in its character, 

_ but' vested a title to the slaves, in the 
daughters, when, it was delivered ; that 
the gift, was, prima facie, an advance- 
ment, afid should be brought into hotch- 
pot, if the daughters ' sought a distribu- 
tive share of the estate of their father, 
who died intestate ; that tha A'alue of the 
slaves, at the time they were received by 
the daughters, was the amount to be 
brought into the estate ; and, that the 
children- of the slaves, born during the 
life estate of the father, and of his Avife, 
belonged to the daughters, and should 
also be brought into hotchpot, at their 
value when they were received by the 
daug-hters. Vr'^ilks v. Greer, 14 A. K. 
437. 

4. When either money, or property, 
is .advanced to a child, it will j^rima Ja- 
cie be an advancement under the statute, 
and must be brought into hotchpot, un- 
less it be of such a nature that it can- 
not be presumed to be an advancement, 
as trifling presents, money expended for 
education, &c. Mitchell v. MitcJiell, 8 
A. R. 414. 

5. But the presumption, that money 
or property received by a child from its 
parent was a,n advancement, may be re- 
butted by proof, that it was intended as 
a gift, and not as an advancement. lb. 

(x A father, by deed, conveyed real 
and personal property to two of his mi- 
nor children, declaring at the time, that 
it was not given as an advancement, but 
was to be in addition to their equal 
share of the residue of his estate: Held, 
that this was not an advancement. lb. 

7. 'A father kept an account with his 
son, upon his books, which was added 
up, and at the foot of the account was 
written by the father, "accounted for, 
as so much that he has had of my es- 
tate; if it is o^er his portion, he must 
pay it back to them:" Held, that it was 
competent to explain the nature of the 
items, and to detail a conversation the 



i^ 



42 



AGENCY. 



widow of the deceased had with him in 
relation to it, to show, that the account 
was not a debt due from the son, nor an 
advancement under the statute. lb. 

8. If a father who lias expended more 
money upon the education of one of his 
children, than the rest, wishes to make 
the others equal with him, by giving 
him less of his estate, he must do so by 
will ; he cannot accomplish it, by con- 
sidering the money so paid out, a debt, 
or an advancement under the statute . Ih. 

9. Commissioners appointed by .the 
orphans' court, to make distribution of 
property, have no power to ascertain the 
vahieof property brought into hotchpot; 
the value must be ascertained by the 
judge of the county court himself, or by 
a jury impanneled l^y him for that pur- 
pose. Taylor v. Reese, 4 A. R. 121. 
Teat V. Lee, 8 P. 507. 

10. A child who has been advanced 
by the parent in his lifetime, refusing to 
bring such advancement into hotchpot, 
thereby relinquishes all his interest as 
distributee. Taylor v. Beese, 4 A. R. 121. 

11. When in the distribution of an es- 
tate in the orphans' court, it is made to 
appear, that an infant has been ad- 
vanced, but not to the full amount of 
what would be his distril3utive share, 
the guardian ad litem of the infant, with 
the concurrence of the court, has the 
power to elect, and to bring such ad- 
vancement into hotchpot. Andreics v. 
Hall, 15 A. E. 86. 

12. When advancements have been 
made to distributees Of an estate, in the 
lifetime of the decedent, and, on distri- 
bution, such advancements are brought 
into hotchpot, the distributive share of 
the widow is not increased thereby, but 
must be carved alone out of the estate, of 
which the decedent died possessed, with- 
out reference to the advancements. Ih. 
Logan v. Logan, 13 A. R. C53. 

13. And if the decree of distribution 
shows, that the widow was allowed the 
benefit of advancements brought into 
hotchpot, the error may be revised in 
this court, although no exception was 
taken in the court below. Logan v. Lo- 
gan, 13 A. R. 658. 

14. The widow of a decedent, is a 
competent witness in a controversy, in- 
volving the amount of advancements for 
which each of the several distributees is 
accountable. Andreios v. EaM, 15 A. 
E. 86. \ 



AGENCY. 

I. Appointment and Revocation; an© 

HEREIN Of the proof OF AgENCY, 

AND of Powers of Attorney. 

II. Extent of Authority. 

a) Construction of Powers. 

6) Power to delegate Authority. 

III. Ratification., and Acquiescence. 
lY. Time and manner . of executing 

Agencies. -. . - 
V. Liabilities of Principals, and how 
far bound by acts of Agents. 

{a) Liabilities in General. 

(5) How affected by admissions of Agent. 

YI. Liabilities of Agents. 

[a) To their Principals. 

(5) To third" Person's. 

YII. Competency of Principal and 

Agent, as witnesses. 
YIII. Rights AND Remedies of Agents. 

(a) Compensation, and Lien. 

(6) When Agent may sue in his own 
name ; and herein of other Rights. 



I. Appointment and Revocation; and 
herein of the proof of Agency, 
and of Powers of Attorney. 

1. A slave may be an agent. The 
Governor v. Bailg, 14 A. R. 469. 

2. A bank may appoint an agent to 
transact any business which it may law- 
fully do ; and such appointment may be 
made by a mere corporate vote. Bates 
V. The Bank of Alabama, 2 A. R, 452. 

3. Though a corporation must, in gen- 
eral, act through its common seal, yet it 
may appoint an agent, whose acts, with- 
in the sphere of his powers, will be valid 
without a seal. Everett v. The United 
States, 6 P. 166. _ 

4. The authority of an agent may be 
implied from his previous employment 
in similar acts, or from subsequent ac- 
quiescence. Fisher v. Campbell, 9 P. 
210. 

5. The agency of a party must first be 
proved, by other evidence than his acts, 
before it can be assumed, that his acta 



.w 



AGENCY, 



43 



are binding on his principal. Scarhor- 
ough V. Beymlds, 12 A. K. 252. 

6. Neither a remittance of money to 
one as the agent of a bank, and his con- 
sent to receive it as such, nor his admis- 
sions, nor the fact that he is a director 
of the bank, have any tendency to prove 
that he is the agent of the bank : Tlie 
consent of the bank that he should so 
act, is necessary. Holman v. Banh of 
Norfolk, 12 A. K. 370. 

7. General reputation is inadmissible 
to prove the- fact of agency. Blevins v. 
Pope, 7 A. R. 371. 

8. Where one, by his will, appointed 
certain agents to make a division of his 
personal estate, and in case of the death 
of either of them, authorized the survi- 
vor to appoint others in place of those 
deceased, to assist in making the divi- 
sion, a recital contained in apaper, pur- 
porting to be the evidence of such divir 
sion, and made by agents purporting to 
have been appointed by the survivor, is 
not sufficient evidence of the fact of the 
appointment : Proof of the fact, against 
one not claiming under the paper, must 
be made by evidence aliunde. Mordecai 
v. Beal, 8 P. 629. _ 

9. Whether it is competent to estab- 
lish the fact of agency, by the declara- 
tions of the supposed agent, qitcere. 
'Stravjbridge v. -Spcmn, 8 A. E. 821. 

10. A statement in a notary's protest, 
that notice of non-payment was given to 
the agent of an indorser, is not evidence 
of the agency, so as to make the notice 
sufficient. O' Connell v. Walker, 1 P. 263. 

11. An agreement between A and B, 
that A should purchase property at a 
sale for the benefit of B's creditors, and 
allow it to remain with B, to resell and 
reimburse A, and retain the surplus, if 
any, does not make A the agent of B. 
Eaynesy. Crutclifield, 7 A. R. 189. 

12. In an action against a sheriff, for 
taking the plaintiff's goods, under an 
execution in favor of a banking compa- 
ny, against another person, C, being 
examined as a witness, stated, that he 
was a stockholder in the company : It 
was proved, that N, was the "reputed" 
agent of the company, and had indem- 
nified the sheriff for taking the property: 
Held, that the proof of N's agency was 
insufficient, and that C, was therefore a 
competent witness for the sheriff. Kirk 
X. Suttle, 6 A. R. 679. . 

13. A parol authority to perfect a 



bond by filling up blanks, is valid for 
that purpose ; but such authority may 
be revoked by parol, at any time before 
the bond is perfected. Gibbs v. Frost, 4 
A. R. 720. 

14. A power of attorney may be ac- 
knowledged before a notary public, and 
when verified under his notarial seal, 
may be used in evidence. St. John v. 
Redmond, 9 P. 428. 

15. The certificate of a notary public, 
under seal, of the proof, or acknowledg- 
ment of the signing and sealing of a 
power of attorney, authorizing the con- 
veyance of land, is a sufficient authenti- 
cation of it ; it is not necessary that the 
certificate should state, that there was 
proof of its delivery. Wctrd v. Boss, 1 
S. 136. 

16. If a power of attoi-ney comes in 
question, jiroof of its contents, or of the 
name of the attorney in fact, is not ad- 
missible testimony : The power of attor- 
ney must be produced, or, its absence ac- 
counted for in the usual mode in which 
the contents of written papers are ad- 
mitted to be proved. May v. May, 1 P. 
229. 

17. A simple power from a principal 
to his attorney, authorizing him to con- 
fess judgment in favor of a third person, 
which is unsupported by a considera- 
tion, and not given as a security for a 
debt, nor to render a security eflectual, 
until executed, is revocable at the pleas- 
ure of the principal. Evans v. Fearne, 16 
A.R,689. 



II. Extent of Authority. ' 
(a) Construction of Powers. 

18. A written power to an agent in 
charge of his principal's plantation, " to 
act for him in all cases whatever, and to 
do all which he himself might do,''' and 
subsequent, verbal instructions from the 
principal, when about to break up hia 
plantation, and remove his family to an- 
other state, "to settle up all demands 
against the family, before he (the agent) 
left, and acting under the power of at- 
torney, to do all that might be necessa- 
ry," do not authorize the agent, to sell the 
principal's slaves. Bearing v. LiqlitfooL 
16A. R. 28. _ 

19. A special authority conferred upon 



44 



AGEKCT. 



an agent, in the management of a plan- 
tation, and the interests connected with 
it, to demand and sue for all moneys, 
&c.,, "subjecting myself to be sued 
through him in the same mantier a* if I 
was personally present," does not give 
the agent power to execute a note in the 
name of the principal. Scarborough v. 
Reynolds, 12 A. R. 252. 

20. Such a power, does not authorize 
a submission of ma,tters in dispute, to 
arbitration, at least until after suit 
brought. lb. 

21. An authority to an agent stated 
thus, "if you can honorably and fairly 
settle with Reynolds for me, out of court, 
do so ; if not, let the court and jury se.t- 
tle," does not authorize a reference to 
arbitrators; nor will authority to eser-, 
cise a reasonable discretion, or to submit 
to a reasonable sacrifice, confer such 
pawer. 76. 

22. It is' not competent for partners, 
"by articles of agreement between them- 
selves, to invest such person as a majoi*- 
ity of them shall afterward appoint, with 
power to sue in his own name, for mo- 
neys agreed to be coiitributed by e^ch 
partner to the general fund. Fortune v. 
Brazier, 10 A. R. 791. 

23. An agent, employed to sell a 
horse, may warrant him to Ije sound, 
and of a certain age, if his authority be 
not restricted. Bradford \.' Bush, 10 A". 
R. 386. _ ; • 

24. When power is given to an agent 
to sell a slave, an authority is hilpUed,- 
to make to the purchaser a warranty 
of title, and soundness. CocJce v. Cam]]- 
lell, 13 A. R. 286. Slcinmr -y. Giinn, 
9 P. 305. Gaines y. -McKinley,! A. R. 

446. ^ _. ' ;, 

25. An agent authoa'ized 'by patrol, to 
sell a slave, caniiot execute 'a wari*antyof 
soundness under seal, so as to bind hi» 
principfil upon the warranty as his deed; 
but such a warranty, though under seal, 
is evidence, as an admission of the 
agent, at the time of the sale, of the 
terms of the contract. Cocke v. Ca;n;p- 
hell, 13 A. R. 286. 

26. Whore an attorney is invested 
with authority, in writing, to jndorjse 
notes for and on account of his principal, 
it. confers power to indorse Tiotes .of 
which the principal is ostensibly the le- 
gal proprietor ; and it devolves upon the 
principal to show, that the authority has 
been abused or transcended. P. <& M. 



Bank v. King, 9 A. R. 279. S. P. Knapp 
V. McBricle, 7 A.- R. 19. 

27. Semble : It cannot be intended, 
because one is^ authorized to indorse 
notes, that he is also an agent for the 
purpose of receiving notice of their dis- 
honor.' P.-tfc-i)/. Bank V. King, 9 A. R. 279. 

28. Ah ^attorney, "with full power 
and authority for us, and in our name, 
to draw or indorse promissory notes, to 
accept, draw, or indorse bills of es- 
cha.ng6, and to sign any check, or checks, 
order or orders, for any money or effects, 
Avhich we now have, or hereafter may 
have, deposited in the Branch of the 
Bank," &c.-, has authority to make, 
c^'aw, or 'indorse notes, or bills, on ac-, 
count of his principals, without refer- 
ence to the form and amount, or the 
place where, and to whom payable : As 
to chocks and orders, there is a limita- 
tion; these must be ,addressed to the 
Branch of the Bank, &c. " Knapp v. 
McBridc, 7 A. R. 19. S. P. P. & M. 
Bank v. King, 9' A . R . 279 . 

29. But the appointment of an attor- 
ney, by writing, "with full power and 
authority, for me, and in my name,- to 
draw, or to indorse promissory notes, to 
accept, draw, or indorse bills of ex- 
change," does not authorize- the attorney 
to draw, or indorse notes, for the mere 
accommodation of third persons. Wal- 
lace V. T-Jie Branch Bank at Mobile, 1 A. 
R. 565. . . 

"30. A . practicing physician, being 
about to leave home temporarily, ap- 
. pointed an agent hy parol, with a gene- 
ral authority to transact a,ny business for 
him in this state, and left. with him his 
books and accounts, "for settlement:" 
He'd, that' as it respected tiie books and 
accounts, the authority of tiie agent was 
restricted by the terms " for settlement;" 
and he was not authorized to assign 
them to a surety of his principal, to in- 
demnify him against the consequences 
of his suretyship. fVood \. McCain, 7 
A.Jl. 800.' '-. ,. , 

31. A bond sighed in blank, may be af- 
terward filled up, in a material part, by 
the, express authority' of those who are 
to be bound by it, and will be as valid, 
as if filled up before it was executed: 
Such an authority may be given by pa- 
a'ol, and revoked in the same manner : 
And authorizes the redelivery of the 
bond, after it is perfected. Gibbs v. Frosi. 
4 A. R. 720. 



AGENCY, 



45 



32. An authority to the president of 
a corporation, "to make all contracts, 
and draw on the' treasurer for- all dis- 
bursements (countersigned by the Seor. 
retary) under the direction .of ihe 
board," does not authoriz;© hini to ac;3ept 
a bill' without "tlie direction of the 
board." Lazarus. \. Shearer, 2 A. E, 
718. . / '' ' 

. 33j a letter of attornej^ to an .agent, 
authorizing him to sell and make -'gootl 
title to a sla-ve, warranting him to. be a 
slave for life, and to do and perform all, 
and every other matter or thing thtft 
may be necessary touching the' preini- 
■ . • fees," does not prohibit the agent from ^ 
making a warranty of soundness -to the 
purchaser. Gaines v. McKinleu, . 1 A. 
E. 446. S. P. Skinner y. QvmK, 9 P. 
. S05. i- Bradford \. BusJi, 10 A. E.' 
386. . • ■ 

M. A master, being entitled to the la- 
bor of his slaves, is bound to pro'^iidfe for 
their wants ; and wliere no provision is 
made by ,an absent masterfor their sub- 
sistence, . an overseer may, pro'citrs lie- 
cessaiy supplies on account.of the owner, 
on the same principle, that a father- is 
liable to support his children. M-sherY.) 
Campbell, 9 P.,210. .■ ' ■ ■ 

35.- There is no^usage in this Estate, 
which authoi^'izes an overseer to pur- 
chase necessaries, for the niainte nance 
of the slaves of- a master, and thus bind 
the master Contrary to his \Yishcs. lb. 

36. The authority ofian agent may be 
implied from his previous employment 
in similar acts, or from subsequont acr 
quiescence. Id. ,' 

37. An authority delegated to an 
agent, must be- strictly pursued in form, 
as well as in substance. lb. 

' • 38. An authority to an agent, to sell, 
and receive the money, does Hot autiior,- 
ize him to sell, without receiving the 
money. Falls y. Gaiiher, 9 P. 605. 

39. The agency created by the rela- 
tion of client and attorney, does not au- 
thorize the attorney to sue in liis own 
name, even on a note payable to a par- 
ticular person, or bearer, and with the 
consent of his client. Bryant v. Oiben, 
IP. 201. ' 

40. It is a general principle of the 
law merchant, that a^factor not restrain- 
ed by his instructions, may sell the goods 
of his principal on a credit, and take a 
note for the payment, in his own name; 
and the fact of taking the note payable 



to himself, is not a circumstance from 
wliich to infer, tliat he intended to make 
the debt his own. Goldlhic'aite v. M'- 
Wlwrtcr, 5 S. & P. 284. 

41. - 1^ a factor has soM an article on a 
credit, which a particulal' custom would 
nat authorize to be thus sold, it is incum- 
bent on' hii, principal, when seeking to 
chg,rge him pers<)nally, to show the ex- 
ception.- lb. 

• . 42. An agent, to whom a bill has been 
intrusted to negotiate, for the purpose of 
discharging a bond, du.eby the principal 
to. a third person, cannot ■ legallj-, after 
indorsing' such bill, .take an assignment 
of the bond, as. ilidemnity, so as to au- 
thorize him to maintain an action on it, 
especially before he has dischprged the 
bill, as indorser. Cox v. Eohinson, 2 S. & 
P. .91. ^ , ■ ' .^ 

'■ 43. xi'n attorney at law is a special 
agent; he has no " authority to receive 
any thing but money in payment of a 
debt put into his hands for collection. 
GiilleU V. 'Leifis, 3 S. 23. 

44. And if he apply the claim of his 
client to the payment of his own debt, 
his client is not bound by it. lb. 

45. An attorney at law^cannot, in vir- 
tuaof his retention, (by a- release, or the 
deposit of money, which will operate as 
a release, if at all,) remit a liability 
which his client may enforce, for the 
purpose, of removing the interest of a 
witness, so^ as to make him competent 
to testify. BaU\. The Bank of Alabama, 
8 A. E; 590. - ' < 

46. A partner may appoint an agent 
to-draw bills, in the name of the firm; 
and the power;' thus conferred, is not 
void, though ■ under seal. Lucas v. The 
Bank of Darien, 2 S. 280. 

47. Whether one partner may author- 
ize an a^ent, to accept service of a writ, 
for all tiie partners, qucere. lb. 

48. A "^warehouseman is an agent of 
the party storing gOods with him, mere- 
ly for the piu'pose of taking care of them ; 
and a notice given to him by one, who 
has naade a contract for them, is no no- 
tice to the seller. Magee v. Billingsley, 
3 A. E. 680, 

49. It cannot be presumed from the 
nature of his employment, alone, that a 
steam-boat^ clerk, has authority to bind 
his principals by giving a promissory 
note.. ChUdress v. Miller, 4 A. E. 447. 

50. A person residing in North Caro- 
lina, authoiized an agent, to receive a 



46 



AGENCY.- 



slave from a person in Alabama, and to 
sell him; the agent received the slave, 
and endeavored to sell him, but vfithout 
success: He then endeavored to hire 
him, but did not succeed in doing that: 
He thereupon, left the slave vrith the 
person from vrhom he received him, 
without hire, until the j^rincipal could be 
informed, that he had not been sold: 
Held, that the agent acted properly, and 
that the person with whom the slave 
Was left, was not liable to the owner, for 
hire. Williams v. Shackelfoj^d, 16 A. 
R. 318. 

51. Where a person is authorized to 
sell property, it does nt)t follow, that his 
agency continues, so as to permit him to 
rescind the sale, or adjust the damages 
which the vendee may sustain, by a 
breach of warranty. Bradford v. Bush, 
10 A. 11.386. 

5'2. When two or more persons have a 
common object in view, the declarations 
of one, in the' presence and hearing of 
all, in furtherance of the common pur- 
pose, and uncontradicted by them, must 
be considered as the declarations of all: 
Where, therefore, a defendant in execu- 
tion, went to the clerk's office from which 
the executions issued, with two persons 
who had agreed to become his sureties 
on writ of error bonds to supersede them, 
and while the clerk was filling up blank 
bonds which he kept in the office, said to 
him, in the presence and hearing of the 
sureties, that he had not time to wait un- 
til they were filled up, and requested, 
that they might be signed by himself 
and his sureties, in blank, which the 
clerk assented to, and it was done, it was 
held, that this was an express authority 
to the clerk, from both principal and 
sureties, to perfect the bonds. Gibbs v. 
Frost, 4 A. R. 720. 

53. A parol authority to perfect a 
bond by filling up blanks in it, is as valid 
as if given under seal. lb. Boardman 
V. Gore, 1 S. 517. ■ 

(b) Power to delegate authority. 

54. An attorney with a mere naked 
power, cannot delegate his authority to 
another. Johnson v. Cunningham, 1 A. 
R. 249. , > : . 

55. But where it is indispensable by 
law, in order to accomplish the end,, or 
it is the ordinary course of trade, or it is 
understood by the parties to be the mode 



by which the particular business would or 
might be done, the authority to appoint 
an attorney may be implied. lb. 

56. An attorney at law cannot, in vir- 
tue of his ordinary powers, delegate his 
authority to another, so as to raise a 
privity ])etween that person and his 
principal, or confer on him as to the 
principal, his own rights, duties and ob- 
ligations, lb. 



III. Ratification and ac'quiescence . 

57. When an agent sells land in the 
name of his principal, without au- 
thority to bind him, and the principal 
on being informed of the sale, refuses to 
ratify and confirm it, the vendee may ■ 
abandon the land, and the principal can- 
not, by afterward offering to confirm it, 
enforce the contract. WUJcinson v. Har- 
loell, 13 A. R. 660. 

58. But it is no ground for the rescis- 
sion of a contract for the sale of laud, 
that one who sold the land, as agent, had 
no authority to act, if the principal rati- 
fies his act, and is able and willing to 
make title. Alderson v. Harris, 12 A. 
R:580. 

59. The approval by a corporation, of 
the acts of one, as its agent, makes those 
acts valid, whether authorized or not. 
Everett v. The United States, 6 P. 167. 

60. A principal may ratify the unau- 
thorized acts of his agent; and this rati- 
fication may be either express or impli- 
ed ; but to be binding on the principal, 
it must be deliberately made, with full 
knowledge of the material facts. Blev- 
ins V. Pope, 7 A. R. 371. Reynolds v. 
Dothard, 11 A. R. 531. Clealand v. 
Walker, 11 A. R. 1058. Wood v. Mc- 
Cain, 7 A.R. 800. McGowen v. Gar- 
rard, 2 S. 479. Lazarus v. Shearer, 2 A. 
R. 718. 

61. And such ratification will have 
the same efiect, as if the agent had been 
fully authorized to act. Blevins v. Pope, 
7 A. R. 371. Wood V. McCain, 7 A. R. 
800. Reynolds v. Dothard, 11 A. R. 531. 
Clealand v.' Walker, 11 A. R. 1058. 

62. But this rule has its exceptions ; 
thus, if one was to say that he author- 
ized another person to purchase prop- 
erty and furnished the means of pay- 
ing for it, this would not bind the prin- 



AGENCY. 



47 



cipal to pay, "if the agent had converted 
the money; but if the money was return- 
ed by the agent, or the purchase made 
on a credit, and the money afterward 
furnished by the principal, to pay the 
debt, he would be bound, if the agent 
did not apply it. Clealand v. Walker, 
11 A. R. 1058. 

63. And where a third person acquires 
rights after the act is done, and before it 
has received the sanction of the princi- 
pal, the ratification cannot operate re- 
trospectively, so as to overreach and de- 
feat those rights. Wood v. McCain, 7 
A. R. 800. ■ 

64. Thus, where one acting as agent 
of a third person, goes beyond his au- 
thority in making an assignment of debts 
due his principal, and a creditor of the 
principal causes a garnishment to be 
served upon his debtor, the' subsequent 
ratification of the assignment, by the 
principal, cannot overreach and defeat 
the lien of the garnisliment. Il>. 

65. Where a principal authorizes his 
agent, to obtain an advance of money for 
him, upon giving a certain security for 
its repayment, and the agent not being 
able thus to obtain the money, procures 
a credit for his principal, which answers 
the purpose for which the money was 
intended, if the principal upon being in- 
formed of what his agent has done, does 
not object, , but acquiesces, he will be 
bovmd by the transaction. Lee v. Fon- 
taine, 10 A. R. 755. 

66. A demand of the agent, by the 
principal, of money which the former 
had wasted, or misapplied, is not a rati- 
fication of his tortious act. Blevins v. 
Pope, 7 A. R. 371. 

67. A party, who with a full know- 
ledge of an alledged fraud, recognizes, 
or confirms a contract, made in his name 
by an agent, cannot afterward set up the 
fraud or want of authority, in the agent. 
McGowen v. Garrard, 2^ S. 479. 

68. G, as the agent of B, sold a land 
certificate to himself; B .brought an ac- 
tion against G for the purchase money, 
and his attorney received it: Held, that 
this was a confirmation of the sale. 
Gaines v. Acre, Minor, 141. 

69. If an agent, transcending his au- 
thority, sells slaves belonging to his 
principal, and the principal ratifies the 
act, the purchaser will hold the slaves, 

, as against a prior unregistered mort- 
gage, of which he had no notice at the 



time of the ratification. 
LigMfoot, 16 A. R. 28. 



Bearing 



IV. Time and, manner of EsscuTiNa 
Agencies. 

70. Where several persons are depu- 
ted to represent another in some busi- 
ness transaction, such as the sale of pro- 
perty, it seems, that all of them should 
join in executing the authority; but the 
intention of the principal, as gathered 
from the words in which the power is 
conferred, may control the rule of inter- 
pretation. In respect, however, to pub- 
lic agencies, an authority executed by a 
majority, will be held obligatory, and a 
good execution. Caldioell v. Harrison, 
11 A. R. 755. 

71. An authority to commissioners, to 
make the plan of a bridge across a 
stream, at a place where a road passes, 
to contract for its erection, and to exam- 
ine and report whether it is comple- 
ted according to the plan, is qiiasi a pub- 
lic, agency; and if a majority of the com- 
missioners, niake the report contempla- 
ted, their action is quite as obligatory 
upon those concerned, as if it had re- 
ceived the sanction of all. Ih. 

72. As a general rule, a written con- 
tract entered into between an agent, and 
a third person, in order to bind the prin- 
cipal, must purport on its face to be his 
contract: But where a note is signed by 
David S. Walker, and David Walker is 
sued, upon it, it cannot be assumed as a 
legal conclusion from the fact, that the 
latter has no middle name, and the for- 
mer has, that credit was given to the for- 
mer, and not to the latter : If such is the 
prima facie presumption, it may be re- 
butted by proof, that the note was sign- 
ed by the former, as agent of the latter. 
Clealand v. Walker, 11 A. R. 1058. 

73. One who undertakes to bind a cor- 
poration, by the execution of a promisso- 
ry note, must show that he had authori- 
ty to bind it, and that it had the faculty 
of becoming bound for the payment of 
money. Hanoood v. Humes, 9 A. R. 659. 

■ 74. An agent when sued upon a con- 
tract made by him, can only exonerate 
himself from liability, by showing that 
he had authority to bind those for whom 
he assumed to act. Ih. Gillas2^^ v. Wes- 



48 



AGENCY. 



son, 7 P. 454. Lazarus v. Shearer, 2 A. 
R.718. 

75. A pai'ol axithority given to per- 
fect a bond by 'filling up blanks in it,, 
may be Executed at any time before the 
authority is revoked, but cannot be af- 
terward. Gibbs\. Frost, 4A.m7'20. - 

76. To make a written contract made 
by an agent, binding on the principal 
per se, it should appear to have been 
made in the name of "the fetter ; but the • 
form of the signature is immateriq,!. 
Lazarus \. Shearer,,2'A:lX.718.; ■ 

77. A warranty sigaed,by an ageht/07"> 
the principal, is the wari^anty of the 
principal ; and it does not matter tU'at 
the agent's name, is signed fii-st. .SirmiJ- 
felloiD V. Marriott, 1 A.R. 573. Skinner 
V. Gunn, 9 P. 305.- Madin v. BortcJirl 
S. 479. . . ■ 

78. But a warranty ' under seal, given 
by the agent in his OAvn name, with the 
addition, "attorney for Livingston Skin- 
ner," will not b'indjclie pi-inci}7al.- Siciii- 
ner v. Gi{nn, 9 P; 305. (This case seems 
to conflict with Martin .v. Lorioh, 1 S. 

479.)' , , '• ; . ' . 

79. An authority delegated - to an 
agent, must be strictly puvsued^in form, 
as well as in substance. Fisher v. Cam]j- 
hell, 9 P. 210. : ^ ■ 

80. All that can be required in the 
conduct of an agent, is, to pursjie tliei In- 
structions of his principal, ifg-wy have 
been given. M'Laughliii y.'' Simpson, 3 
S. &P. 85. - ' - ,. . •" ■■ 

81. But if the'powers of an agent are 
discretionary, then lie Avill be lield to 
act, to the best of his judgment, far the 
advantage of his principal^ and should 
he fail in his judgment, and his princi- 
pal suffer thereby, the agent is not ac- 
countable for the loss, jb.' 

82. An agent will be held to act 
strictly within the^scope of his authori- 
ty; and any acts of an agent, not sanc- 
tioned by his authoi-ity, are void, even if 
for the benefit of. the principal, if not 
adopted by him. Cox \. Bobinson^ 2 S\ 
&P. 91. 



V. Liabilities of Principals, and 

HOW FAR BOUND BY ACTS OF AgENTS. 

(a) Liabilities in General. 
83. Where it is sought to bind a prin- 



cipal for acts performed by an agent 
withovrt express avithority, on the ground 
of a previous recognition of similar acts, 
it is necessary to' show, that the instru- 
ment '*iil question, was taken on the faith , 
of such-pretious recognition. St. John 
Y^Redmokd, P. 428. 
" -M. All attorney in fact, cannot bind" 
his- principal beyond the power delega- 
ted, -lb. .... 

' 85. And a.pfejTson who deals with an- 
other who i^rof esses to be the' agent of a 
■third ]5«rson,. ia bound to know the ex^ 
tent of his authority. Fisher v. Camp- 
bell, 9 P. 210. • Gullett V. Lewis, 3_S. 23. 

86." But an agent acting within the 
scope of -his authorityj binds his prin- 
cipal. Fisher V. Campbell, 9 P. 210. 
" 87. If one be, held out to the world, as 
the geiierar agent of another, particular 
instructions-to the agent, not communi- 
cated by'Jiim,will net '.pre vent the agent 
from binding 'his principal, even when 
he, acts in disregard of the particular in- 
•struQtions. i&; ' ' . 

■ 88. The. master of a steanjirboat, is li- 
able ia trespass foran injury done to the 
person of another, by the discharge of a 
■gun, on the Jjoat, in his' presence and by 
his command, although it proceeded 
merely froiii ' the want of due care. 
Rhodes -f. RoUrts, 1 S. 145. 

89. F'or th.e pxtrpose of showing that a 
note was. intended to bind the agent, and 
oiot the principal, whose name is similar, , 
it is allpwable for the principal, in an ' 
action against him, to' prove, that a suit 
had beien brought ' and prosecuted to 
judgment against the ag&nt; but the ef- 
fect of this eyidence may be impaired by 
proof, that the suit was brought by mis- 
take. ^ Clealand v. Walker, 11 A. R. 
1058..' ■ ■ • . 

90.' Where the. nanie qf the principal 
is hoi disclosed by the agent when the 
contract i« .made, it is said, that the 
creditor may charge either of them at 
his election ; and altiiough he may have 
debited the agent, supposing him to be 
the principal, he may recover the amount 
of the latter, if the account between the 
principal and agent is not altered to the 
prejudice of the former : But if the 
vendor, knowing who the principal is, 
makes the agent his debtor, he is bouiid 
by the election, and cannot look to the 
principal for payment. lb. Westmore- 
land M.Davis, 1 A. E. 299. 

91. When it is doubtful from the face 



AGENCY. 



49 



of the contract, whether it was intended 
'to operate as the personal engagement of 
the party signing, or to impose an obli- 
gation upon some third person as his 
principal, parol evidence is admissible 
to show the true character of the transac- 
tion ; the more especially, if the right of 
a bona fide indo'rser is not concerned. 
Lazarus v. Shearer, 2 A. R. 718. Desh- 
ler V. Rodtjes, 3 A. R. 509. 

92. If one person contracts with an- 
other for work, and pays him for it, 
without notice that he is but an agent 
for a third person, the payment is good, 
and the principal cannot recover for the 
work. Copeland v. Touchstone, 16 A. R. 
333. 

93. A corporation is' not liable for the 
■ acts of its marshal, unless done by its 
" direction. Beady v. The Mayor of Tus- 
• >aZoo5a, 6 A. R. 328. 

94. Where one person intrusts anoth- 
er with his blank signature, to be filled 
up for a particular sum, and to be used 
in a particular manner, if the paper is 
filled up for a larger amount, a!nd used 
in a different manner, he will be. respon- 
sible to a bona fide holder for the amount 
for which it is filled up. ' H<irbert v. 
Hdie, 1 A. R. 18. Roberts v. Adams, 8 
P. 297. Brahan x. Eagland, 3 S. 247. 
Huntington v. The Branch Bank at Mo- 

' bile, 3 A. R. 186. Decatur Bank v. 
Spence, 9 A. R. 800. 

95. An implied authority is given to 
the holder, to fill up the paper for any 
sum which he may have advanced upon 
it in good faith, and in ignorance of any 
facts, which should have put him on in- 
quiry, lb. 

96. But, if the signer can bring home 
to the holder, a knowledge of the cir- 
cumstances under which his signature 
was obtained, at the time he acquired 
the note, it will avail him as a defense 
to the note. Roberts v. Adams, 8 P. 297. 

97. And where one writes his name 
on a blank piece of paper, of which an- 
other takes possession, without authority 
therefor, and Avrites a promissory note 
above the signature, which he negotiates 
to a third person, who is ignorant of the 
circumstances, the party whose name is 
signed, is not liable to the holder of the 
note. Nance v. Lary, 5 A. R. 370. 

98. Where a bill single, not rendered 
negotiable by indorsement, is intrusted 
by the payee, to an agent to collect, and 
he sells it for a fair and valuable con- 

1—7 



sideration, to a third person, and he to 
another, who sues in the name of the 
payee, to his use, and obtains judgment, 
a _ court of equity will consider him a 
trustee for the payee, and compel him to 
account for the proceeds. May v. Na- 
6oi-5, 6 A. R.-24. 

99. A vendor of a certain quantity of 
cotton, warranted it to be prime, and 
agreed, that when it arrived at a certain 
port, it should be reweighed, and exam- 
ined by his agents, and if found deficient 
in quantity or quality, they should sup- 
ply the deficiency, by prime cotton 
which he had in their possession : There 
being a deficiency, both in quantity and 
quality, and the agents having no prime 
cotton of the vendor, with which to sup- 
ply it, they substituted the best cotton 
the vendor had in their possession ; and, 
in ascertaining the quality and value of 
the cotton sold, and of that substituted, 
called a broker to their assistance : The 
purchaser having ■ brought an action 
against the vendor, to recover the difler- 
ence between the value of the cotton 
Sold, and of that delivered by the agents, 
it was held, that the acts of the agents 
werb proper, and binding on the vendor ; 
and that he was therefore liable to the 
action.' Pattigon v. Moore, 3 P. 270. 

100'. Notice to an agent, or counsel, 
employed by another person, in another 
business, at another time, will not be 
constructive notice to his principal, or 
client, employing him afterward. Miin- 
dine v. Pitts' adm'r, 14 A. R. 84. 

(b) How afi'ected by admissions of Agent. 

101. Admissions of an agent, to be 
binding on the principal, must be made 
at the time of doing some act in the ex- 
ecution of his authority, in respect to the 
property with which he is intrusted as 
agent. Bohannan v. Chapman, 13 A. R. 
041. 

102. AVhere the acts of an agent' will 
bind the principal, his repi'esentations, 
and declarations respecting the subject 
matter, will also bind him, if made at 
the same time, and constituting part of 
the res qestce. Strawbridge v. Spann, 8 
A. R. 821. 

103. Whether it is competent to es- 
tablish the fact of agency, by the decla- 
rations of the supposed agent, qucere. lb. 

104. If a vendee relies upon the acts 
and declarations of a third person, in. 



50^ 



AGENCY. 



defense of an action for the purchase 
money, he must show, that that person 
occupied such a situation in respect to 
the vendor, as made them evidence 
against him. Bradford v. Busli, 10 A.. 
K. 386.' 

105. The statements of an agent, 
made subsequently to the contract, are 
not evidence against the principal ; the 
agent must be examined as a witness. 
Betts V. The P. & M^ Bank of Huntsvilh, 
3 S. 18. 

106. The gratuitous declarations of an 
agent, as to the ownership of property in- 
trusted to his charge, are not evidence ; 
if competent, he must be produced in 
person. Standefer v. ChisJwlm, 1 S. & 
P. 449. 

107. It is competent for partners, upon 
the dissolution of their partnership, to 
invest each other, or any one of theii- 
number, with authority to borrow mo- 
ney, and make notes upon their joint ac- 
count, in order to pay the debts of the 
firm ; and where such an authority is 
conferred, the statement of one of them 
upon obtaining a loan of money, that it 
was to be applied in payment of a firm 
debt, is evidence against the others. Cai- 
lin V. Gilders, 3 A. R. 536. 

108. The declarations of an agent, 
acting within the scope of his authority, 
and of the party with whom he contracts, 
■when made at the time of a transaction, 
are part of the res gestce, and admissible 
in evidence. Williams v. Shackelford, 
16 A. E. 318. 

109. When an attorney, employed to 
collect money, is called on for a settle- 
ment, his admission of the amount col- 
lected, is evidence against his client ; but 
the client may show, that the admission 
was not true. McRae v. Bank of Colum- 
lics, 16 A. R. 755. 



VI. Liabilities os. Agents. 

(a) To their Principals. 

110. When an agent is instructed not 
to sell a horse for less than $500, and he 
notwithstanding sells for a less siim, in 
an action by the owner against the agent, 
•the measure of damaged, is not the dif- 
ference between the price placed on the 
animal by the owner, and the ' sum for 
which it was sold, bxit the actual injury 



sustained by the breach of the instruc- 
tions. Ainsivorth v. Partillo, 13 A. R. 
460.- 

111. When an, agent instructed to sell 
a horse, exchanges it for another, the 
act is a conversion, and the agent be- 
comes liable to the owner, for the value 
of the animal, without a demand. lb. 

112. Where an agent buys land with 
the money of his principal, and takes 
a deed conveying title to himself, or up- 
on the sale of land thus situated, takes ' 
notes for the purchase money in his 
own name, it is competent for the prin- 
cipal, to prove the fact by parol testimo- 
ny, and to assert his title to the land in 
the one case, and to the money in the 
other. Andrews v. Jones, 10 A. R. 460. 

113. One attorney confides a note to 
another for collection, and takes his re- 
ceipt, but without giving instructions 
with respect to the ownership. After 
the money is collected, it is remitted to 
the payee of the note, whose name how- 
ever was indorsed on the note. This re- 
mittance, (the payee not being the own- 
er,) will not discharge the collecting at- 
torney from liability to his immediate 
principal, nor will the action of the lat- 
ter, for the money, be defeated, by proof 
that he was himself the agent of the in- 
dorsee, unless that person has asserted 
his right to the money as against his 
agent. Leiois v. Peck, 10 A. R. 142. 
Same parties, 12 A. R. 768. 

114. An agent who collects money in 
the coux'se of some lawful employment, 
is not liable to an action, until a demand 
has been made, or something equivalent 
has been done. Sally's admr's v. Capps, 
1 A. R. 121. Barton v. Peck, 1 S. & P. 
486. M' Broom v. The Governor, 6 P. 32. 

115. And tlie circumstance, that an 
agent, acting in the business of his prin- 
cipal, takes notes payable to himself, is 
not alone such evidence of a conversion, 
as will dispense with proof of a demand 
of the money collected on the note, be- 
fore suit brought. Kidd v. King, 5 A. 
R. 84. Stewart v. Frazier, 5 A. R. 114. 

116. But an agent, who receives notes 
to be deposited with an attorney for col- 
lection, and collects the money himself, 
is not entitled to insist on a demand, be- 
fore suit brought against him. Brazier 
V. Fortune, 10 A. R. 516. 

117. Where the payee of a note, de- 
posits it in the hands of an agent to be 
collected, who causes a suit to be insti- 



AGENCY, 



51 



tuted thereon in the payee's name, for 
his own use, and upon a judgment being 
obtained, refuses to yield the control' 
thereof, but insists upon collecting and 
appropriating the proceeds to himself, a 
court of equity may enjoin the agent 
" ^ from all further interference, and the de- 
-^ . fendants in the judgment from paying 
the same, until the matters shall there 
be heard and adjudicated. Dunn v. 
Dunn, 8 A. E. 784. 

118. If a bank receives a bill for col- 
lection, and omits to present it at the 
pi'opertime and place, for payment, and 
a loss is sustained in consequence of the 
omission, the bank is liable to the ex- 
tent of the loss. The Brancli Bank at 
Montgomery v. Knox, 1 A. R. 148. The 
Bank of Mobile v. Huggins, 3 A. R. 206. 

119. If the owner of a bill, on which 
.. theremedy has been lost, by the neglect 

■ _- ■ 'oi a bank or its officers, withdraws it 
, " -^ from the custody of the bank, he does not, 
^.•V thereby waive his action against the 
liank ; nor will the pursuit of any of the 
parties to the bill, discharge the bank 
from liability for its negligence. The 
Branch Bank at Montgomery v. Knox, 1 
A. R. 148. 

120. Wlaen a note is deposited with a 
bank for collection, and no special agree- 
ment is made, the contract to be impli- 
ed is one of agency; and no duties are 
imposed bylaw on a bank, different'from 
those imposed on any other agent. The 
first duty of an agent, in such a case, is 
to follow his instructions ; if none are 
given, it is his duty to present the note 
at the time and place fixed for payment; 
or if no place is designated, to use due 
diligence to make a demand; if pay- 
ment is refused, it is then his duty to 
give immediate notice to his principal, 
that he may take the measures necessary 
for his own security. These duties are 
imposed by the general law of agency ; 
but others may arise out of local laws ; 
as if damages are given on the protest 
of a note ; or if a protest is essential to 
fix the liabilities of other parties. The 
Bank of Mobile v. Huaqhis, 3 A. R. 

• , •' ■■ 206. - .^ • 

121. In the absence of any local cus- 
tom, it is not incumbent on the agent to 
notify the indorsers, unless he i's direct- 
ed by his principal to .do so ; nor to cause 
the note to bo protested, unless this is 
necessary to fix the liability of other par- 
ties, or to give his principal some advan- 



tage, which, otherwise, the law would 
not accord to him. 76. 

122. An agent, in case of a neglect of 
duty, is liable to nominal damages upon 
the breach of his contract ; and if any 
loss has been sustained by his principal, 
in consequence of the neglect, he is lia- 
ble for the actual loss incurred, but not 
to any greater extent. lb. 

123. The discharge of a solvent party 
to anote, in consequence of an act of neg- 
ligence, by the agent, is not an actual 
loss, when there are other solvent par- 
ties who remain bound to the principal ; 
and it rests with the principal to show, 
before he is entitled to recover the a- 
mount'bf the note- as damages, that the 
parties who remain bound to him, are 
unable to pay. lb, 

124. An agent is not liable for an omis- 
sion to notify the indorsers of a note, de- 
posited with him for collection, of its non- 
payment, unless he is instructed to do 
so; or unless he omits to inform the 
principal of the default. lb. 

125. Where a note is withdrawn by 
the owner from the bank, where it waa 
deposited for collection, the bank is not 
discharged from its liability to damages, 
if it has omitted to give notice to the 
principal, of the non-payment. lb. 

126. When a note is deposited with a 
bank for collection, and an entry is made 
on the bank-book of the depositor, the 
contract of agency is not waived or re- 
scinded, by canceling the entry in the 
bank-book: The only eifect of such a 
canceUation is, to show that the note 
has been returned to the depositor, 
who is authorized to deal with it as he 
pleases. lb. 

127. If a person undertakes to per- 
form services voluntarily, for another, 
and without reward, he is not liable for 
non-feasance. Morrison v. Orr, 3 S. & 
P. 49, 

128. Where an agency is to be per- 
formed for compensation, out of the line 
of business of the agent, he will be held 
only to the exercise of ordinary dili- 
gence in its transaction. lb. 

129. But where business has been as- 
sumed by one, without the consent, and 
in violation of the rights of others, he 
will be held to a strict account ; and he 
will be lial)le for as much as might have 
been made, by the strictest manage- 
ment.' M'LaiidJUin v. Simpson, 3 S. & 
P. 85; • ' • •■ 



\ , 



52 



AGENCY 



130. Where the plaintiff and deferxd- 
ant are parties to a combination to de- 

, fraud the government of the United 
States, and the defendant, in the execu- 
tion of the fraudulent pvirpose, receives 
money from the United States, in the 
name of the plaintiff, and acting osten- 
sibly as his agent, no' action can be 
maintained by the plaintiff for the reco- 
very of the money so received. Boyd v. 
Barclay, 1 A. R. 34. , ' 

131. A bill for an account, will lie 
against an agent, who, while in charge of 
a mercantile establishment, receives and 
sells goods at different times, and refuses 
to render an account of sales, or of the 
money received. Hoisted v. Rabh, 8 
P. 63. 

132. But if the agency is confined to 
a single transaction, and a discovery is 
not necessar}^, the remedy is at law. lb. 

133. Where one is the agent of anoth- 
er, to collect two promissory notes, and 
disposes of them to his own use, one in 
the purchase of land, and the other of 
personal property, the land, and other 
property, may be regarded in his hands 
as money, and assumpsit maintained for 
it. Strickland v. Burns, 14 A. R. oil. 

(b) To third Persons. ' . 

134. Where an agent receives money 
for his principal, to which a third person 
is entitled, and pays it to the former, be- 
fore demand, or notice, from the latter, 
the payment discharges the agent from 
all liability. Upchurch v. NorsicortJiy, 
15 A. R. 705. Thompson v. Stickney, 6 
A. R. 579. Crutch-field v. TFoorf, 16 A. 
R. 702. 

135. When money is collected by an 
agent, for persons who are themselves 
agents, he may discharge himself either 
by paying it over to those from whom 
he received the claim, or to the true 
owner ; but cannot discharge' himself l^y 
paying it to the payee of the note, he not 
being in fact the true owner, and the 
note not having been received by him 
from the payee. Wallace v. Peck, 12 A. 
R.76_8. 

136. One who undertakes to bind a 
corporation, by the execution of a prom- 
issory note, must show that he had au- 
thority to bind it, and that it had the 
faculty of becoming bound for the pay- 
ment of money. Hancood's ex'rs v. 
Humes, 9 A. R. 669. 



137. An agent when sued upon a con- 
tract made by him, can only exonerate 
himself from liability, by showing, that 
he had authority to, bind those for whom 
he assumed to act. Ip. 
. 138. One who as an agent, intermed- 
dles with the goods of another, is guilty 
of a conversion, if it would have been 
such, if his principal had received them, 
although he was ignorant at the time, of 
the true owner ;'and he may be sued in 
trover, after he has parted with the pos- 
session to his principal. Lee v. Mathews^ 
10 A. R. 682. 

139. One Avho undertakes to contract 
as an agent, and so contracts as to im- 
pose no legal obligation on his principal, 
is personally resjwnsible. Gillaspiev. 
IVesson, 7 P. 454. Lazarus v.. Shearer^ 
2 A. R. 718. . Hdrwood's ex'rs v. Humes, 
9 A. R. 659. 

140. And a warranty under seal, giv- 
en by an agent in his own name, with the 
addition of the words, "attorney for 
Livingston Skinner," is the warranty of 
the •agent, and does not bind the princi- 
pal. Skinner v. Gktnn, 9 P. 305. 

141. Where an agent makes a con- 
tract in writing, on which he isprima fa- 
cie liable, he may be sued thereon, and it 
is not necessary to bring a special action 
on the case against him, for having ex- 
ceeded his authority. Lazarus v. Shear- 
er, 2 -A. R. 718. 

142. Although the principal becomes 
liable by the adoption of a contract made 
on his behalf, the agent is not discharg- 
ed, unless he show, that the act Avas done 
in the exercise and within the limits of 
the powers delegated, or in other words, 
under a sufficient authority existing at 
the time the contract Avas made. lb. 

143. The mere fact, that the defendant 
held two letters of attorney from the ad- 
ministratrix of the plaintiff's' ancestor, 
authorizing him to transact business for 
her, individually, and as administratrix, 
will not cavise his purchase of .the lands 
of the ancestor, sold under a decree of 
the county court, to inure to the benefit 
of the plaintiff. Duval v. McLoskey, 1 
A. R. 709. 



VII. Competency of Principal and 

Agent, as witnesses, 

144. The principal is not a competent 



AGENCY. 



witness for the agent, in a suit brought 
by him against an attorney for the re- 
covery of a debt due the principal, Trhicli. 
the agent had placed in the attorney's 
hands for collection, as the record would 
be evidence for the principal, of the 
amount recovered, in a suit by _ him 
against the agent. Wallace v. Peek, 12 A. 
E. 768. 

145. A principal is a competent wit- 
ness, (his interest having been released,) 
to prove the object and purpose of send- 
ing an agent from Mobile, to the coun- 
try ; it is merely proof of the character 
of the agency, which it is equally compe- 

* tent for the agent or himself to . j)rove. 
'■• • KirkseijY.Bates,lA.n.'?>Q'i. 

146. An agent is a competent witness 
for his principal. StringfdloiO'X. Mcu^- 
riott, 1 A. R. 573. 

147. An'" agent is a competent Avitness 
to prove his authority to act. Gayle v. 
Bishop, 14 A. R. 552. 

148. A witness who has a certain, di- 
rect, and immediate interest in the event 
of a suit, cannot be examined, though the 
record of the suit, would not be evidence, 
either for or against him : But an agent 
is an exception to this rule, and may tes- 
tify, though he has an interest in the 
event of the suit. Bean v. Pearsall, 12 
A. R. 592. 

149. One who signs a note on behalf 
of a steam-boat, and its owners, is a com- 
petent witness to show, that his princi- 
pals were indebted to the payee. . Chil- 
dress v. Miller, 4 A. R. 447. 

150. Where a contract made with an 
agent,' is sought to be enforced by the 
principal, or his assignee, and its validi- 
ty is questioned on the ground of fraud, 
the agent may be called as a witriess, to 
prove Avhat his declarations were at the 
time the contract was made, witiiout 
showing the nature or extent of his au- 
thority. Harrison v. Talane, 3 A. R.. 
534 

151. An agent who has made a Con- 
tract for the sale of land, and is to be al- 
lowed a commission upon the sale, is not 
a competent witness for his vendor, in a 
suit by the vendee to rescind the con- 
tract for fraudulent representations made 
by the agent, at the time of the sale. 
Griggs v. Woodruff, 14 A. R. 9. 

152. The agent of a corporation, who 
accepts bills drawn on him by a stock- 
holder, for the accomrnodation of the 
corporation, is a competent witness 



against the drawer or indorsers when 
sued on the bills, and also if the action is 
fi>r money paid, &c., by one. party to the 
Ijills, against another. Rhodes v. Sher- 
rod, 9 A. R. 63. 

15.3. An agent who purchases goods 
for his principal, which are, Avithout the 
consent of the agent, seized by the sher- 
iff, by virtue of an execution against the 
agent; in favor of a third person, and 
sold to satisfy the judgment, is a com- 
petent witness in a suit by the principal 
against the sheriff, for the trespass. 
Bushy. McGee, 4.A. R. 710. 

154. In an tiction on a covenant exe- 
cuted by T, as agent of W, T is a compe- 
tent witness* Aldridge v. Warner's ex'rs, 
2 P. 92.. ■ 

155. Though, as a general rule, the 
testimony of a subscribing witness, where 
his attendance is practicable, is necessa- 
ry to prove the execution of a paper, yet 
.where the writing -is executed by an 
agent, he is competent to prove it, even 
if the subscribing witness be within the 
reach of the process of the court. Falls 
V. Gaither, 9 R.605. 



VIII. Rights axd Remedies of Agexts. 
(a) Compensation, and Lien. 

156. Where one receives business, 
within the line of his occupation, the law 
will presume .that he is to receive ordi- 
nary compensation for it. Morrison v. 
Orr, 3 S. & P. 49. 

157. But, if business be intrusted to a 
person, out of his ordinary profession, 
the law presumes it to be a mere naked 
agency, in which comp'ensation is not an 
ingredient. ' lb. ,' ' . 

158. A stockholder who acts as the 
agent and active trustee of a company, is 
entitled to a reasonable compensation 
for his personal services, while regula- 
ting the business of the association. 
Svence v. Whiiaher, 3 P. 297. 

159. 7^. factor, to whom goods are con- 
signed for sale, is entitled to a lien upon 
them, and their proceeds, for advances, 
and commissions consequent upon their 
reception, safe-keeping and sale, and 
for what may be due him upon a general 
balance of accounts growing out of sim- 
ilar dealings. Martin v. Pope, 6 A. R. 
532. 



54 



AGENCY.— ALIENS. 



160. Where a factor makes advances, 
in the absence of a special agreement, the 
inference is, that they were made upon 
the jaint credit of the personal security 
of the ]3rincipal, and his goods and mo- 
ney that may come to hand; and he may 
renounce his lien, without affecting his 
remedy against the person, and vice 
versa. lb. 

161. A mere agreement to ship goods, 
. in satisfaction of antecedent advances, 

will not, in general, give the factor, or 
consignee, a lien upon them for his gen- 
eral balance, until they come to his ac- 
tual possession : But if there is a spe- 
cific pledge, or appropriation of certain 
ascertained goods, with the intention 
that they shall be a security, or the pro- 
ceeds a payment, aud they are deposit- 
ed with a bailee, then the property is 
changed, and vests in the person to whom 
they are to be delivered. Deslia v. Pope, 
G A. R. 690. 

(b) When Agent may sue in " Ids oimi 
name; and herein of otlier Riglits. ■ 

162. Where an agent who has a- note 
to collect for his principal, pays the 
amount of it to his principal, he acquires 
■such an interest in the note, as to entitle 
him to sue upon it. Tankei:sley .v. Gta- 
.Aam, 8 A. R. 247. . •*. _ '_ 

163. An agent may svie in his own 
name, on an express contract with him as 
such. Neiohold's ex'r v.. '^ilson, 'Mi- 
nor, 12. .".■-, ■"•,', 

164. Where an agent to whom a note 
is made payable as agent, intrusts it 
to an attorney for collection, who frau- 
dulently transfers it to a bank, which 
collects the money, the agent cannot 
maintain an action for money had and 
received to his use, against the bank : 
The law will not raise an implied prom- 
ise, except in favor of the owner of the 
money. Branch Bank at Montgomery, 
V. Sydnor, 7 A. R. 508. _ , '" 

165. An agent to whom a bill has 
ibeen intrusted to negotiate, for the pur- 
"pose of discharging a bond due by his 
principal to a third person, after indors- 
ing the bill, cannot take an assignment 
of the bond as indemnity against his in- 
dorsement, so as to authorize him to 
maintain an action on the bond ; espe- 
cially Ijefore he has discharged the bill 
as indorser. The authority of the agent 
in such a case, contemplates a discharge 



of the bond, not a purchase ; and any re- 
dress he is entitled to, is on the bill he 
has indorsed, when paid by him, and not 
on the boijd. Cox v. Robinson, 2 S. & 
P. 91. 

166. Where one falsely, and fraudu- 
lently represents himself as an agent, 
authorized to sell land, and gives his 
own bond to make title, the purchaser 
cannot be compelled to pay the purchase 
money, unless he obtains the title ; the 
more especially if the agent is insolvent. 
Aldersony. Harris, 12 A. R. 580. 

167. An agent to whom a promissory 
note is payable, may maintain an action 
thereon in his own name. Bird v. Dan- 
iel, 9 A. R. 302. Castleberry v. Fennell, 
4xi. R.642. 

168. -Where one person as the agent 
of another, receives money which is 
claimed l^y a third person, who gives no- 
tice of his claim, a bill of interpleader 
will not lie ; for a mere agent cannot by 
notice, be converted into a trustee ; but it 
seems, that a bill of interpleader, as be- 
tween principal and agent, is admissible, 
where the claim is under a derivative, 
and not under an adverse title. Gibson 
V. Goldthwaite, 7 A. R. 281. 

169. A verbal promise, made to an 
agent, to pay the amount of an execu- 
tion, in favor of the principal, which has 
been levied on property of the defendant, 
in consideration that the agent will re- 
lease the levy, does not authorize an ac- 
tion against the promisor, in the name of 
the agent. Nabors v. Shippey, 15 A. 
R. 293. 

170. Where an agent declares in the 
common counts, on a promise made to 
him for the benefit of his principal, the 
plea of non-assumpsit puts in issue, the 
right of the agent to maintain the action 
in his own name. lb. 

171. An agent, to whom a note, in- 
dorsed in blank, has been transmitted for 
collection, may sue on it, in his own 
name : The principal alone has the right 
to object to it Bancroft v. Paine, 15 
A, R. 834. 



ALIENS. 



1. The wife of an alien, though an 
American citizen herself, is not dowal:)le 



AMENDMENT. 



55 



of his lands. Congregational Church at 
Mobile V. Morris, 8 A. E. 183. 

2. Whether the saving in favor of 
creditors, in the statute of escheats, ap- 
plies to land held by an alien at his 
death, qucere. But if it does, the fact' of 
indebtedness vs^ould not prevent the es- 
cheat ; nor could the land be sold by an 
administrator of the alien, for the pay- 
ment of creditors, without authority 
from thg orphans' court, as in other cases. 
lb. 

3. A subject of the King of Spain, liv- 
ing in Louisiana when taken possession 
of by the United States, is not a compe- 
tent juror, unless it appear that he is 
naturalized, or was an inhabitant of 
Louisiana, at the time when it was in- 
coi'porated into the Union. Judson v. 
Eslava, Minor, 3. 

4. A person who removed to the terri- 
tory of Louisiana, after the treaty of 
Paris, in 1803, and before its admission 
into the Union as a state, and was an in- 
habitant of that territory from the time 
of his removal until after the adoption of 
the state constitution, does not thereby 
become a citizen of the United States. 
The State v. Primrose, 3 A. E. 546. 

5. An alien may take land by the act 
of the parties, (as by purchase or devise,) 
and hold it until office found ; but hav- 
ing no inheritable blood, he cannot take 
by act of law, as by descent. Smith v. 
Zaner, 4 A. E. 99. 

6. At common law, an alien cannot be 
heir to any one, nor transmit inheritalile 
blood to another. lb. Bartlett v. Mor- 
ris, 9 P. 266. 

7. An alien may purchase and hold 
lands until office found, and may main- 
tain an action to recover possession of 
such lands. , Jinkins v. Noel, 3 S. 60. 



AMENDMENT. 

I. General Eules. 

II. Of Writs and other Process. 

III. Of Declarations. 

IV. Or Pleas. 

V. Op Eecords- and Judgments. 

VI. Op Officers' Eeturns. 

VII. Effect op Amendment. 

VIII. Amendments in Chancery. See 
Chancery, III. 



I. General Eules. 

1. After judgment, all defects of form, 
not previously objected to, are cured by 
the statute of jeofails. Turner v. Brown, 
9 A. E. 866. Kent v. Long, 8 A. E. 44. 

2. The statute authorizing the amend- 
ment of writs of error, authorizes an 
amendment of the Avrit, wherever the 
record furnishes the means of making it. 
Branch Bank of Mobile v. Mmyhi/'s 
adm'r, 7 A. E. 5-77.^ 

3. This statute requires the writ to be 
amended in all cases, where it is neces- 
sary to make it conform to the record. 
Lunsforcl v. Richardson, 5 A. E. 618. 

4. It is discretionary with a court, to 
permit a garnishee to amend his answer, 
even after an issue has been tried be- 
tween the plaintifl', and one to whom the 
debt attached is supposed to be transfer- 
red. Bvford V. Welborn, 6 A. E. 818. 

5. The clerical error of a ministerial 
officer of coui't, may be amended, where 
there are sufficient data, upon which to 
predicate the amendment. Scales v. 
Swan, 9 P. 163. Smyth v. Strader, 9 P. 
446. Armstrong v. Robertson, 2 A. E. 
164. 

6. A clerical error in the pleadings, 
verdict, or judgment, may be amended 
on motion, as well after error brought, 
as before. Moody v. Keener, 9 P. 252. 
Wade y. Kelly, 2''^. U^. 

7. And this court will correct such an 
error, at the costs of the plaintiff in error. 
Wade V. KeUy, 2 S. 443. 

8. An order, or judgment, nnnc pro 
tunc, must be predicated on matter of 
record, or some memorandum of the 
court. Thompson v. . Miller, 2 S. 470. 
AndreiDs' adni'r \.- The Branch Bank at 
Mobile, 10 A. E. 375. 

9. A judgment or decree, cannot be 
amended upon evidence dehors the rec- 
ord. Bondurant v. Thompson, 15 A. E. 
202... . 

10. in trials of appeals from justices' 
decisions, the statutes intend only the 
merits be investigated ; and whenever 
the court below should amend on motion^ 
this court will consider the amendment 
as made, if sufficient matter to amend' 
by, appear upoq. the record. Tliompson 
Y. Pierce, -i ^/m. : 

11. The circuit court, independent of 
express legislation, has the power to sub- 
stitute a judgment roll or entry, when 
the original record is, lost ; and the sub- 



56 



AMENDMENT. 



stituted ma>ttei' become.g a record of equal 
validity with the original. McLendon v. 
Jones, S A. R. 298. 

12. The circuit court has tLO power to 
direct an amendment of a judgment 
mine pix) tunc, after such jvidgmeut has 
been affirmed on certificate in the su- 
preme court ; and a writ of error will lie 
to this court, upon the judgment off the 
court ordering sucli amendment. Btfi- 
ptiens v. Korris, 15 A. E. 79. 

13. An amendment of an error in the 
original judgment, cannot- he" made, in 
the supreme court. Ih. ■ ' 



II. Of Writs and other Process. 

14 A diiference in the amount of dam- 
ages, which a. first, and second esecu- 
tion, affirna the plaintiff recOtered, is 
such a clerical misprision as may be 
amended in ..the primary courl ; . and 
when the record, which shows the vari- 
ance, and upon which the m^otion to 
quash is founded, furnishes the only pro- 
per data for the correction 'of the error, 
it is the duty of the court, mero rnotii, to 
direct the amendment, and overrule the 
motion to quash. ■ Sheixpard \: Melloy, 
12 A. R. 561. . ;, ;'. '. 

15. An execution'may iochide defend- 
ants to the judgment, who did not unite 
in a forthcoming bond, as weli as the, 
obligors in theboud, if forfeited. If the 
execution does not on its face, nor by the 
indorsement of the clerk, show, who 
were the obligors in the bond, it may be 
amended by the judgment^ aii,d forth- 
coming bond. Ih. . , '■,'■■'''" 

10. When a writ of error is su^dout 
in the names of D,xi, and others, it may 
be amended l)y the transcripfrofihe rec-. 
orcl, and the name of the proper party 
or parties substituted. Ellison \^ The 
■State, 8 A. R. 273. ;' J •_ •. ' 

17. A Avrit of error, not ""showing the 
term to which returnable, may be amend- 
ed by its test, or the bond, or citation. 
Lyon V. Mcdoue,' 4 P. 414. 

18. When a suit by attachment is im- 
properly commenced in the name of a 
party to whom a note not negotiable, is 
transferred without indorsement, instead 
of using the name of the person having 
the legal interest, and the cause is after- 
ward appealed to the circuit court, the 
defect cannot then be cured by substitu- 



ting the name of the proper party in the 
declaration ; nor can the note be allowed 
to go to the jury as evidence under the 
money counts in a declaration in the 
name of the holder, without proof of a 
promise .to pay him the note. Taylor v. 
Jcre, 8 A.- R. 491. 

19. After a cause commenced before 
a justice of the peace has been removed 
by appeal, or certiorari to a higher court, 
the parties cannot be changed, unless 
death or some other cause has super- 
vened. ■ Mooney v. Ivey, 8 A. E. 810. 
Mofjvt V. Wooldridge,'o S. 322. Frierson 
V. Blakesley, 3'S. 267. Smith v. Cobb, 1 
S. 62. Wilson V. Collinis, 9 A. R. 127. 

20. When a citation to an executor to 
distribute, ,&c., runs in the name of the 
husband alone, in right of his wife, and 
the decree is properly made in the names 
of husband and wife, the informality of 
the citation, cannot be taken advantage 
of on error, when there was no exception 
taken in the court below. Sankey v. 
Elsherry, 10 A. R. 455. 

21. Where an attachment is sued out, 
as auxiliary to a suit commenced in the 
ordinary mode, a mistake in the writ of 
attachment, of the time .when the court 
is held, in which the original suit is 
pending, is amendable. Scott v. Macy, 
3 A. R.'250. 

22. ^Vhere an affidavit for an attach- 
ment, describes the plaintiff by the 
christian name of "Abraham," and in 
the bond and attachment, he is called 
"Abram," the bond and attachment 
may be amended, to conform to the affi- 
davit. Alforcl V. Johnson, 9 P. 320. 



III. Of Declarations. 

. 23. An amendment of a declaration, 
in a, material point, is not allowable after 
an issue is subiuitted to a jury. Wat- 
kins V. Cantcrberry, 4 P. 415. 

24. Where a writ issued against the 
defendant by the name of " Watkins," 
and he was declared against by the 
name of "Watson," it was held, that 
after objection to a note signed " Wat- 
kins," offered to the jury under the gen- 
eral issue, the alloAvance of an amend- 
ment of the declaration, was error. lb. 

25. Where permission is given to 
amend a declaration, the plaintiff hag 
his election, either to file a new one, or 



AMENDMENT. 



5T 



to amend that previously in court. Ken- 
nedy T. Dear, 4 P. 423. 

26. Where, in an action upon a prom- 
issory^ note, the indorsement on the writ 
states the amount to l3e less than it re- 
ally is, and a declaration is filed con- 
forming to the indorsement, it is compe- 
tent for the court, under the general 
powers conferred by statute, to permit 
an amended declaration to be filed, de- 
scribing the note with accuracy. Ryan, 
€x parte, 9 A. R. 89. 
. 27. Objections of form, cannot be 
made to the declaration, on error, after 
verdict. Allen v. Clauncli, 7 A. R. 788. 

28. An allegation in a declara,tion on 
a note, that the note was delivered to 
the defendant, is a clerical misprision, 
amended by other parts of the record, 
and therefore, not available on error. lb. 

29. Where a declaration is filed against 
two, and leave is given to the plaintiff 
to amend by striking out the name of 
one, the amendment need not be made 
in fact ; the granting of leave will ope- 
rate to complete it. Palmer v. Lesne, 3 
A. R. 741. 

30. When a notice of a motion against 
a sherifi", is pleaded to by him. it is in 
the nature of a declaration, and may be 
amended on motion. Walker v. Turnip- 
seed, 8 A. R. 679. 

31. In a suit upon an official bond, the 
name of the nominal plaintiif is form, and 
not substance, and therefore, a mistake 
in that respect, is not reached by a gen- 
eral demurrer, and is amended "after 
judgment by other parts of the record. 
The Governor v. Davis, 9 A. R. 917. 

32. The permission to file additional 
counts to a declaration, after a judgment 
in the cause has been reversed, is the es- 
ercise of a discretion, which will not be 
revised. Holloivay v. Lowe, 1 A. R. 246. 

33. Where damages are claimed" in 
the writ, but the amount is not stated in 
the declaration, the defect being amend- 
able, will be considered as amended, and 
judgment for the damages sustained. 
Boddie V. Ely, 3 S. 182. 

34. Where there are good and bad 
counts in a declaration, and a general 
verdict, the judgment will not be revers- 
ed, since the statute of jeofails of 1824. 
Thirman v. Matflmvs, I'S. 384. 

35. The common law rule is changed 
by that statute, and in all cases where 
the declaration contains a substantial 
cause of action, the judgment will be 



sustained. Chandler v. Holloway, 4 P. 
17. 

36. A justice of the peace may permit 
an amendment to the complaint in a 
case of forcible entry and detainer, be- 
fore issue joined. Murry v. Harper, 3 
A. R. 744. 



lY. Of Pleas. 

37. A refusal of the court below, to 
permit an amendment of a plea, after 
overruling a demurrer, will not be re- 
vised by this court, unless it is shown in 
the record, in what the proposed amend- 
ment consisted. Craig v. Bloic, 3 S. 
448. 

38. A plea may be amended by leave 
of the court, at any time before final 
trial, and after verdict and new trial 
granted. Webster v. Wyser, 1 S. 184. 

39. A plea puis darrein continuance, 
may be amended, and the amended plea 
may be entitled as of the term when the 
original was filed. lb. 



\. Of Records and Judgments. 

40. After a judgment upon irregular 
proceedings is reversed, the whole re- 
cord may be corrected by the judgment 
of the appellate court. Sankey v. Sank- 
ey, 8 A. R. 602. 

41. Where the caption of the record 
showed, that the court was held on the 
second Monday of February, 1841, a 
memorandum at the head of the judg- 
ment entry of " March 17th 1840 " was 
considered a clerical misprision, and 
amended by other parts of the record. 
Smith V. The Branch Bank at Mobile, 5 
A. R. 26. 

42. A judgment nisi on a forfeited re- 
cognizance, recited, that the recogni- 
zance was entered into on "Tuesday, 
the 8th day of the term:" A scire facias 
issued, which pursued this judgment, 
was served on one of the parties, and 
dismissed, and on motion of the solicitor, 
another sci. fa. was oi'dered to issue, 
and leave granted to amend the judg- 
ment nisi, nunc pro tunc; and by the di- 
rection of the court, the clerk referred 
to tho judgment nisi of the preceding 



58 



AMENDMENT. 



term, and erased therefrom with his pen 
the words "Tuesday, the 8th day of the 
term," and interlined and substituted, 
" Wednesday, the 9th day of the term," 
and a sci. fa. tlien issued on the judg- 
ment as amended, returnable to the next 
term: Held, that the judgment nisi was 
amendable nunc j)ro tunc, and that the 
particular mode adoj^ted in this case, 
did not annul the first judgment in toto. 
The State v. Craig, 12 A. R. 363. 

43. A direction in a judgment against 
a guardian, that it be levied of the goods 
and chattels of the ward in his hands, is 
a mere clerical misprision, amendable 
on motion in the prunary court, or in 
this court at the costs of the plaintiff in 
error. Sellers v. Smith, 11 A. E. 264. 

44. Where an attachmentissues against 
the property of a deceased non-resident 
debtor, the proper judgment is a con- 
demnation of the property levied on, to 
the satisfaction of the debt ; but if the 
property has been replevied by the ad- 
ministrator, then a judgment shovild be 
rendered against him personally, to be 
discharged by the delivery of the proper- 
ty to the sheriff; and if the judgment is 
de honis propriis, and not in the alterna- 
tive, it will be amended in this court, at 
the costs of the plaintiff in error. Loo- 
mis V. Allen, 7 A. E. 706. 

45. Where a judgment in an action 
on a demand ascertained by writing, is 
for more than principal and interest, it 
will be corrected in the primary court on 
motion, or by this court at the costs of 
the plaintiff in error. Smith v. Robinson, 
11 A. E. 271. 

46. When a credit indorsed on a note, 
is erased before the assessment of dam- 
ages by the clerk, on a judgment by de- 
fault, it is error to amend the judgment 
mmc pro tunc : The duty of the clerk is, 
to enter the judgment according to the 
note, and if entered for more or less than 
the proper sum, it may be corrected; 
but if a credit is erased before judgment, 
the court cannot set up the erased cred- 
it. Burt V. Hughes, 11 A. E. 571. 

47. An affirmation in a judgment nunc 
pro tunc, that the record discovered suf- 
ficient matter to authorize the amend- 
ment, will sustain it, though the matter 
is not specially stated, if the defendant 
appeared, upon the motion to perfect the 
judgment, and does not show by a bill 
of exceptions, or in some other appropri- 
ate manner, that the facts recited in the 



entry are untrue. Rains v. Ware, 10 A. 
R. 623. 

48. 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 ta 
the deceased defendant, and continuing 
its vitality against the others ; and 
where a judgment is thus far vacated, 
and a formal judgment nunc pro tunc^ 
rendered against the survivors, the latter 
will be regarded as a continuation of, 
and intended to perfect the original 
judgment, and but one execution can is- 
sue : The informality in the judgment 
would, on error, be regarded as a mere 
clerical misprision, amendable under the 
statute, at the costs of the plaintiff iu 
error. Hood v. The Branch Bank at Mch 
bile, 9 A. E. 335. 

49. A jvidgment against a non-resi- 
dent, jointly with a resident administra- 
tor, is amendable on error, at the costs of 
the plaintiff in error. English v. Brown, 

9 A. E. 504. - _ • 

50. Where the names of the parties to 
the suit, are not fully stated upon the 
margin of the judgment entry, the defect 
is amendable by a reference to the pa- 
pers 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 ad- 
missible. Smith V. Redus, 9 A. E. 99. 

51. A mistake of the clerk, in stating 
the parties in the minutes of the judg- 
ment entry, is a clerical misprision, 
amendable by other parts of the record. 
Patterson v. Burnett, 6 A. E. 844. 

62. When a non-resident plaintiff, 
who has given security for costs, is un- 
successful, a judgment for costs maybe 
rendered against the surety, if a motion 
for that purpose is submitted to the 
court ; but where the clerk, mero motUf 
enters up judgment against the surety, 
it is a clerical misprision, of which the 
plaintiff cannot complain ; and is amend- 
able in the primary court, on motion, or 
on error, at his costs. Dodson v. Harris, 

10 A. E. 566. 

53. Where the clerk of the court, in 
entering judgment, commits an error by 
confounding two suits, it may be amend- 
ed nunc pro tunc Dobson v. Dickson, 8 
A. E. 252. 

54. A judgment nisi, rendered upon a 



AMENDMENT. 



59 



ipecognizance, when it does not conform 
to the recognizance, may be amended 
nunc pro tunc; and if a motion for that 
purpose be overruled, the refusal may be 
revised on error. The Governor v. Knight, 
8 A. R. 297. 

55. The omission to render a judg- 
ment of condemnation against a steam- 
boat, when an appeal is taken on behalf 
of the owners, is not an error of which 
the parties to the appeal bond will be 
permitted to complain, as they cannot be 
prejudiced by it; such an omission is 
-clerical, and may be corrected on mo- 
tion, if necessary. Monroe v. Brady, 7 
A. R, 59., 

56. If the plaintiff in detinue under 
the statute, fails in the action, no judg- 
ment can be rendered on the bond, for 
the costs ; but if a judgment be so ren- 
dered, it will be considered a clerical 
misprision, which may be corrected at a 
subsequent term. Harvey v. Jeter, 7 A. 
R. 688. 

57. A judgment nunc pro tunc, may 
be rendered against the surety in an ap- 
peal bond, at a term subsequent to that 
at which a recovery was had against the 
appellant ; and the judgment against 
the appellant, together with the appeal 
bond, will be sufficient to authorize such 
a judgment against the surety. Ban- 
croft V. Stanton, 7 A, R. 351. 

58. A judgment was rendered against 
the appellant, (who was an administra- 
tor,) de bonis intestatis ; at a subsequent 
term a judgment was rendered against 
his surety for the appeal, and execvition 
directed against both: Held, that the 
entries only authorized one execution, 
de honis intestatis, as to the principal, 
and de honis propriis, as to the surety ; 
and that if the judgment as to the surety 
was erroneous, the error was at most a 
mere clerical misprision, amendable in 
this court, under the statute, at the costs 
of the plaintiff in error. lb. 

59. When a judgment -of the circuit 
court, in a case of forcible entry, is re- 
versed, because that court dismissed the 
complaint, instead of remanding it to be 
amended in the justice's court, and the 
circuit court is directed to remand the 
case, that the amendment may be made, 
if it does this, and renders judgment for 
costs against the plaintiff in the certio- 
rari, this judgment is irregular ; but the 
error is a clerical misprision, and will be 
•corrected in this court, at the costs of 



the plaintiff in error. Tilinan v. McRae, 
8 A. R. 677. 

60. Upon a confession of the plea of 
plene administravit, the judgment is, to 
recover the sum due, to be levied of the 
goods, which hereafter shall come to the 
hands of the administrator : A general 
judgment, to be levied de bonis intestatis, 
upon such a confession, is irregular, and 
usually amendable as a clerical mispris- 
ion ; but when directed by the court, is 
an error, for which the judgment will be 
reversed. Skinner v. Frierson, 8 A. R. 
915. 

61. Where a judgment against an ex- 
ecutor or administrator, is rendered de 
bonis propriis, when it should be de bo- 
nis testatoris or intestatis, it will be treat- 
ed as a clerical misprision, amendable 
on motion, or on error, at the costs of 
the plaintiff in error. Yarborough v. 
Scott, 5 A. R. 221. 

62. Where a judgment is rendered in 
favor of "the President of the Bank," 
&c., omitting the words " and directors," 
which are part of the corporate name, 
the omission is a mere clerical mispris- 
ion, amendable at the costs of the plain- 
tiff in error. SneJgrove \. Branch Bank 
at Mobile, 5 A. R. 295. 

63. Yv^hen the service of a writ is ac- 
knowledged by the defendant, but the 
proof of it is omitted to be entered upon 
the record at the time of the judgment, 
it may be entered at a subsequent term, 
and after writ of error sued out. Moore 
V. Horn, 5 A. R. 234. 

64. Upon the affirmance of a judg- 
ment, where a reversal is saved by an 
amendment nwnc pro tunc, pending the 
writ of error, judgment is notwithstand- 
ing rendered against the sureties in the 
writ of error bond, for damages and 
costs. lb, (Collier, C. J., dissenting.) 

65. A judgment iiunc p>ro tunc, may 
be entered, or amended at a subsequent 
term, even without notice, if there is 
any order or memorandum of record, to 
warrant it. Bentley v. Wright, 3 A, R. 
607. Brown v. Bartleft, 2 A. R. 29. 

66. A court may lawfully amend, or 
correct a judgment during the same term 
when rendered. Neale v. CaldiocU, 3 S. 
134. 

67. It is competent for a court to cor- 
rect, or set aside an entry at the term at 
which it was made ; but this cannot be 
done at a subsequent term, upon a mere 
allegation, that an improper entry had 



^0 



AMENDMENT. 



been made by the neglect or inadver- 
tence of the clerk. Holloivay v. Wash- 
ington, 3 A. R. 668. 

68. This court will not amend a judg- 
ment of affirmance, at a subsequent 
term to that at which rendered, and 
award damages, on the production of a 
copy of the writ of error bond, and the 
suggestion, that the bond, or a copy, 
was not in court, when the judgment 
was affirmed. Gayle v. Agee, 4 P. 439. 

69. The Avord "dismissed," found op- 
posite the case on the docket of the 
judge, in his handwriting, will not of it- 
self be sufficient to authorize an amend- 
ment of the judgment, at a subsequent 
term, so* as to make the defendant liable 
for costs. Broion v. Bartldt, 2 A. E. 29. 

70. In rendering judgment JMtnc pro 
tunc, the court cannot resort to the re- 
cord in a distinct suit, though referred 
to by the clerk, to supply omissions. 
Draughan v. Tombeckbee Bank, 1 S. 66. 

71. A memorandum written by the 
presiding judge, across a motion entered 
on the motion docket, will authorize an 
entry imnc pro time, at a succeeding 
term. Harris v. Bradford, 4 A. E. 
215. 

72. The record recited, that C was 
surety in an appeal, but the bond was on 
file, by which it appeared, that one P 
was the surety: The mistake may be 
corrected in this count, by reference to 
the bond, and judgment rendered against 
the proper party. Grant v. Pettybone, 
2 S. 445. _ 

73. A judgment was improperly en- 
tered by a mistake of the clerk, and at a 
succeeding term, amended nunc pro 
tunc; before that term, a writ of error 
coram vobis was sued out, and the judg- 
ment superseded : Held, that though the 
writ of error coroHi vohis, might be whol- 
ly irregular, it could not be. assigned as 
error, because there was no final action 
of the court upon it ; nor did it exert any 
influence upon the judgment finally en- 
tered up in the cause. Coffey v. Wilson, 
2A.E.^01. / ._ 

74. Where, upon a trial of the rigiit of 
property, the jviry find the property sub- 
ject to the execution, judgment should 
not be rendered against the claimant for 
its assessed value, if it exceeds the 
amount of the execution, and costs ; but 
whether an error in this respect, is not a 
clerical misprision, amendable in the 
court below, or in this court, at the costs 



of the plaintiff in error, qucere. Wallis 
V. mm, 10 A. E. 451. 

75. Where several levies are mafde up- 
on the same property, at the same time, 
and several trials of the right are had, if 
upon verdict of condemnation, the jury 
assess the full value of the property, in; 
each case, ' and judgments are rendered 
accordingly, whether it is not competent 
for the court in which the trials are had, 
to correct its judgment, so that the 
claimant may not be charged beyond the 
value of the property, qiioire. Ansley v. 
Pearson, 8 A.-E. 432. 

76. Where the verdict in a trial of the 
rigiit of property, finds the property sub- 
ject to the execution, and the judgment 
does not conform to the verdict, it is er- 
roneous ; but the proper judgment will 
be rendered in this court, at the cost of 
the plaintiff in error. Windham v. 
Clarke, 16 A.' E. 659. 

77. If a judgment be entered for too 
much, in consequence of a clerical error, 
,it may be amended in the court below, 
notwithstanding error brought ; and the 
amended judgment will be affirmed with- 
out damages,, and at the costs of the de- 
fendant in error. Evans v. St. John, 9 
P. 187. Broimi v. Toiver, Minor, 370. 
(But see Moore v. Horn, 5 A. E. 234.) 

78. A judgment by nil dicit, for a less 
sum than is shown by the record to be 
due, may be corrected on error, and ren- 
dered for the proper amount, by refer- 
ence to the indorsement on the writ, at 
the costs of the appellant. Mason v. 
Bmith, 1 S. 275. 

79. In- certiorari cases, it is error to 
award judgment for damages on account 
of delay, merely, although the jury so 
find: A judgment so entered, cannot be 
considered as a clerical misprision, but 
is the fault of the party taking it, and 
will be reversed, and here rendered for 
the proper sum. Childs v. Crawford, 8 
A. E. 731. 

80. If judgment be rendered at a term 
to which the writ could not legally be 
made returnable, it may be corrected on 
error, if the defect is not waived. Jordan 
V. Bell, 8 P. 53. 

81. Where a judgment by default is 
rendered against the drawer of a bill of 
exchange payable in another state, which 
includes a charge of protest, without any 
proof of what the law authorizes there- 
for, the judgment is not reversible, but 
will be amended as for a clerical mispris- 



AMENDMENT. 



61 



ion, under the act of 1824, by excluding 
the notarial fees. Crawford v. The 
Branch Bank at Decatur, G A. E,. 574. 

82. The surety in an appeal bond, is 
only liable for the penalty of the bond ; 
and when that is only $5 25, this court 
will judicially notice, that the costs must 
exceed that sum : It will, therefore, cor- 
rect the' judgment as a clerical misentry, 
and render judgment, against principal 
and surety, for the costs, not exceeding 
the penalty, and for the excess, against 
the principal only, at the costs of the 
plaintiff in error. McBarnett v. Breed, 
6 A. R. 476. 

83. The svipreme court has no author- 
ity to amend decrees or judgments of in- 
ferior courts, unless they are not such 
as "should have been rendered." iSad- 
ler Y.Houston, A: V. 208. 

84. The defendant, an administra- 
trix, pleaded, that the estate of her in- 
testate was declared and adjudged in- 
solvent; the jury found the plea to be 
true, assessed the plaintiff's daniages, 
and judgment was rendered that the 
suit abate, and be referred to the orphan's 
court : Held, that although the act of 
1843 required, that the judgment in 
such case should be,' that the plaintiff is 
entitled to the sum found due him, but 
no execution shall issue, and the judg- 
ment be certified to the proper orphans' 
court, yet the defect was a mere clerical 
misprision, amendable at -the costs of 
the plaintiff in error. Lunsford v. Bas- 
Mns, 6 A. R. 512. 

85. If, in entering a judgment, the 
clerk omits to insert the amount recov- 
ered, the judgment may be afterward 
amended, and the amount inserted, 
nunc pro tunc. Wilhersonx. Goldthicaite, 
1 S. & P. 159. 

86. A clerical error in the pleadings, 
verdict or judgment, may be amended 
on motion, as well after error brought, 
as before. Moody v. Keener, 9 P. 252. 

87. The rendition of a decree by the 
orphans' court, for the distributive share 
of the wife, in the name of the husband 
alone, is a clerical misprision, and may 
be amended; it is not an error of which 
the husband can complain. Parks v. 
£tonum, 8 A. R. 752. 

88. A judgment may be amended 
nunc pro tunc, although no execution 
has issued on it within a year and a day 
from its rendition ; but if a sc/.^o. was 
necessary to authorize the issuance of 



an execution on the original, the same 
step must be taken on the amended judg- 
ment. Allen V. Bradford, 3 A. R. 281. 

89. The thirty-sixth section of the act 
of 1807, "establishing superior courts, 
and declaring the powers of the territo- 
rial judges,'^ and the fifth section of the 
act of 1824, "to regulate pleadings at 
common law," are the only statutory 
provisions in this state, in regard to the 
amendment of judgments: The latter 
act, which is more explicit, and doubt- 
less intended to confer additional power 
on the primary courts, authorizes them 
"to amend any clerical error,'^ &c., 
"where there is suiEcient matter appa- 
rent upon the record to amend by :" No 
amendment therefore, which is not au- 
thorized by the record, is permissible. 
Armstrong v. Robertson, 2 A. R. 164. 

90. A judgment for more than the 
amount due on a note sued on, may be 
corrected by motion to the court in 
which it is rendered. Dunn v. Tillotson, 
9 P. 272. 

91. The computation of damages by 
the clerk, without an averment that the 
bill of exchange was protested, is a mere 
clerical error, which may be corrected in 
the court below, or in this court, at the 
costs of the plaintiff in error. Jordan v. 
Bell, 8 P. 56. 

92. When only one of several defend- 
ants, pleads to issue, no judgment should 
be rendered against the others,«'Until the 
jury have retrirned their verdict; then 
judgment should" be entered jointly 
against all: But if a judgment is enter- 
ed against those who do not plead, and 
after verdict against the party who 
pleaded, a judgment in continuation of 
the entry, is rendered against him, the 
irregularity will be considered a cleri- 
cal misprision, amendable under the 
act of 1824, "to regulate pleadings at 
common law." Dearing v. Smith, 4 A. 
R. 432. 

93. The circuit court has no power to 
direct an amendment of a judgment 
nunc pro tunc, after such judgment has 
been afiirmed on certificate- in the su- 
preme court ; and a writ of error will lie 
to this court, upon the judgment of the 
court ordering such amendment. Ste- 
phens V. Korris, 15 A. R. 79. 

94. An amendment of an ei-ror in the 
original judgment, cannot be made in 
the supreme court, lb. 

95. Administration being granted up- 



62 



AMENDMENT. 



on an estate in 1840, the administrator 
continued to act until 1847, making an- 
nual sales J)y order of the court, and 
in 1846, applied for an entry nunc pro 
tunc, authorizing him to keep the estate 
together, under the act of 1835: Held, 
that as there was no record evidence 
that the original order was to keep the 
estate together, and as all the inferences 
from the conduct of the administrator, 
in the administration, Avere, that he was 
acting under the general law, the court 
had no power to make such an order, 
mine pro tunc. Benford v. Daniels, 13 
A. K. 667. 

96. A judgment or decree, cannot he 
amended, upon evidence deJiors the rec- 
ord. Bondurant v. Thompson, 15 A. 
11.202. 

97. A judgment upon a conviction for 
a nuisance, "that the nuisance be abated 
forthwith, at the costs of the defend- 
ant, and the sheriff is charged with the 
execution of this order," is, in effect, a 
command to the sheriff, to abate the nui- 
sance, and therefore erroneous ; but this 
court will render jvidgment, command- 
ing the defendant to abate the nuisance, 
if it has not already been done. Camjjr 
hell Y. The State, 16 A. K. 144. 



VI. Officers' Returns. 

98. A sheriff may amend his return 
'On an execution, at any time, to make it 
true ; and such amended return, will re- 
late back, and protect a purchaser, as if 
originally made. Brandon v. Snoivs, 2 
S. 255. 

99. A sheriff may amend his return to 
a writ oi fieri facias, issued at the suit 
of an indorsee, against the maker of a 
promissory note, so as to make it con- 
form to the statute, although several 
years have elapsed, an action been com- 
menced against the indorse,r, and, a dec- 
laration filed, alledging, that the return 
is such as it is made by the amendment ; 
•ftnd the amended return, will have a re- 
^irospective relation, and be evidence for 
the plaintiff, in the action against the in- 
vdorser. Woodward v. Harbin, 4 A. R. 
534. 

100. When a sheriff is permitted to 
amend his return, the amendment has 
jrelation to the time when the original 
return was made. rSmith v. Leavitts, 10 



A. R. 92. Brandon v. Snoivs, 2 S. 255. 
Woodward v. Harbin, 4 A. R. 534. 

101. An amended return of the sher- 
iff, upon an execution, that the property 
levied upon, had been claimed by a third 
person, by affidavit, and bond given to 
try the right, entered upon the execu- 
tion, before any proceedings are com- 
menced against the officer, has the same 
effect, as evidence of the facts returned, 
as if it had been entered in due time, as 
required by law. Leavitt v. Smith, 14 
A. R. 279. 

102. A sheriff may be permitted even 
after judgment, to amend his return on 
a writ, so as to show that the writ was 
executed in fact on the defendant. Heff- 
lin V. McMinn, 2 S. 492. 

103. And the amended return, will 
be sufficient to sustain a judgment, 
though made after the issuance of a writ 
of error. Ih. Moreland v. Hufiin, Mi- 
nor, 18. 

104. A writ issued against several, 
was returned executed as to all ; after a 
judgment by default was rendered, the 
sheriff, mero motit, amended his return, 
so as to make it appear, that the writ 
was executed on one of the defendants, 
and returned non est inventus as to the 
others: Held, that the erasure of the 
sheriff's amendment, by the court to 
which the suit was brought, was, under 
the circumstances, allowable. Wafkins 
V. Gayle, 4 A. R. 153. 

105. The court will not permit a sher- 
iff to amend his retiu-n, after judgment 
by default, so as to show that the writ 
was not executed, unless it be shown, 
that irreparable injury will follow from 
permitting the judgment to stand; and 
only then, upon terms which will not 
work a discontinuance. Mc Gehee v. Mc- 
Gehee, 8 A. R. 86. 

106. The refusal of acourt, pending a 
motion against a sheriff, to permit him 
to amend his return, cannot be assigned 
as error in- the judgment upon the mo- 
tion : If the party is prejudiced by the re- 
fusal, the remedy is by mandamus. Cas- 
A-y V. Haviland, 13 A. R. 314. • McGelm 
V. McGehce, 8 A. R. 86. 

107. The refusal of a court to permit 
a sheriff to amend his returji on an exe- 
cution, pending the trial of a cause, in 
which the return is material, cannot be 
assigned for error in the judgment ren- 
dered in the cause : A motion for such 
an amendment, should be made before 



AMENDMENT, 



63 



the trial is begun, and if improperly de- 
nied, might be enforced by some direct 
proceeding. McCollum v. Huhbert, 13 
A. li. 285. 

108. A wi'it of error will not lie, from 
an order of court, permitting a sheriff to 
amend his return to a fieri facias ; the 
party prejudiced by such an order, has 
a remedy by mandamus, to cause it to 
be vacated. Kemp v. Porter, 6 A. R. 
172. 

109. A stranger to the proceedings, 
cannot move to amend the return made 
by the sheriff, by striking out a levy 
made on a slave, upon the ground, that 
the slave did not belong to any of the 
defendants in the execution, but was the 
property of the party making the mo- 
tion. Caiotliorne v. Knight, 11 A. R. 
268. 

110. Where a slave sold by a consta- 
ble, is afterward levied on by another 
creditor, and claimed by the purchaser, 
an amended return made by the consta- 
ble during the trial of the claim, may be 
read in evidence. Savage v. Forward, 7 
A. R. 463. 

111. Semble: Although it may not be 
permissible in a proceeding agpinst a 
sheriff and his sureties, to contradict the 
return made by the sheriff on process, 
yet the courts have an extensive control 
over their officers, anxl may permit 
amendments in their ministerial acts, so 
as to subserve right and justice. Bon- 
durant v. The State BanJc, 7 A. R. 831. 
Brandon v. Snoios, 2 S. 255. 

112. Although a record cannot be con- 
tradicted, yet upon motion to the court, 
at the instance of the officer making a 
return, it may be corrected, so as to con- 
form to the truth. Fo. 

113. The pendency of a motion against 
the sheriff, does not deprive the court of 
the power to permit him to amend the 
return, by which he is sought to be 
charged, though it might induce the im- 
position of terms on him ; and the amend- 
ed return operates on the motion, as if 
made in that form in the first instance. 
Hodges Y..Faird, 10 A. R. 678. Smith v. 
Leavitts, 10 A. R. 9-2. Brandon v. Snows, 
2 S. 255. 

114. When an appeal is taken from a 
justice's judgment, if the officer's name 
does not appear to the return upon the 
warrant, the court should allow him to 
amend the return. Needham v. Neivsom, 
Minor, 407. 



VII. Effect of Amendment. 

115. Where the plaintiff obtains leave 
until the next term to amend his decla- 
ration, a plea in abatement need not be 
filed until then ; but if no time is allow- 
ed, the presumption in this court will be, 
that the amendment must be made in- 
stanter; and imless the contrary is 
shown, the amendment will be presumed 
to have been so made, and a plea in abate- 
ment filed at the next term, properly re- 
jected. SturdevantY. Gains, 5 A. R. 485. 

116. A defendant may plead, de novo, 
to an amended declaration, or rely upon 
a demurrer, or plea, to that originally 
filed. Kennedy v. Dear, 4: P. 423. 

117. When the defendant pleads to 
an amended declaration, he thereby ac- 
quiesces in the order of amendment, and 
waives-all right to revise the decision of 
the court on the former declaration, or 
on his pleas thereto. Caldioell v. May, 
1 S. 425. Mullins v. Cabiness, Minor 21. 

118. When a plea of non est factiim, is 
filed for the purpose of taking advantage 
of a misdescription of a bond, set out in 
a scire facias, and the scire facias is 
amended by leave of the court, the plea 
does not apply to the amended scire fa- 
cias, and judgment may be rendered for 
Avaut of a plea. Sartin v. Weir, 3 S. & 
P. 421. 

119. Upon the affirmance of a judg- 
ment, wherg a reversal is saved by an 
amendment nunc pro tunc, pending the 
writ of error, judgment is notwithstand- 
ing rendered against the sureties in the 
writ of error bond, for damages and 
costs. • Moore v. Horn, 5 A. R. 234. 
(Collier, C. J., dissenting.) 

120. When a sheriff is permitted to 
amend his return, the amendment has 
relation to the time when the original 
return was made. Smith v. Leavitts, 10 
A. R. 92. Brandon v. Snoios, 2 S. 255, 
Woodward v. Harbin, 4 A. R. 634. 
Hodges v. Laird, 10 A. R. 678. 

121. An amended return of the sher- 
ifi", upon an execution, that the property 
levied upon, had been claimed by a third 
person, by affidavit, and bond given to 
try the right, entered upon the execu- 
tion, before any proceedings are com- 
menced against ihe officer, has the same 
effect, as evident of the facts returned, 
as if it had been entered in due time, as 
required by law. Leavitt v. Smith, 14 
A, R. 279. 



64 ANCIENT LIGHTS.— APPEAL AND CERTIORARI. 



ANCIENT LIGHTS. 

One ■who erects a house in a city or 
town, on the margin of his lot, with a 
window opening upon the lot of the ad- 
joining proprietor, does not thereby ac- 
quire such a right to the use of his win- 
dow, as to deprive the adjoining proprie- 
tor of the right to buil^ on his lot, in 
any manner his judgment, or fancy may 
dictate. Bay v. Lynes, 10 A. R. 63. 



APPEAL AND CERTIORARI. 
I. Appeals. 



(a) In what cases an Appeal lies. 
h\ Of the Appeal Bond, 
(c) Proceedings on Appeal^ 



II. Certiorari. 

ia) When granted by the Supreme Court. 
h\ When the proper remedy. 
c) To Justices of the Peace, and pro- 
ceedings thereon. 
{d) When returnable to the Circuit 
Court. 



I. Appeals. 
(a) In ivTiat cases an Appeal lies. 

1. A person in possession of land, sojd 
under a decree in chancery, cannot pros- 
ecute an appeal against the complainaiit 
in the cause, from an - order directing 
possession to be given to the purchaser : 
The appeal must be prosecuted against 
the purchaser. Creigldon v. Paine, 2 A. 
R. 158. 

2. The statutes of this state, authorize 
the prosecution either of *'an appeal, or 
writ of error, to all final judgments and 
decrees of the circuit and county courts. 
Livingston v. Steam-boat Tallapoosa, 9 P. 
111. 

3. An appeal from the determination 
of the county court, in^a proceeding un- 
der the act of 1812, Wacerning public 
mills, must be taken in term time. Hen- 
dricks v. Johnson, 6 P. 472. 

4. An appeal will not lie to the su- 



preme court, in a criminal case. Humpli- 
r ey v. The State, Minor, 64. 

5. The statutes provide, that any per- 
son aggrieved by the judgment of a jus- 
tice of the peace, may within five days 
therefrom, appeal to the circuit or coun- 
ty court; but no time is fixed within 
which, the appeal bond shall be given. 
Johnson v. Hale, 3 S. & P. 331. 

6. The time within which an appeal 
may be taken from the judgment of a 
justice of the peace, will not begin to be 
computed, until the ju.dgment has re- 
ceived the final action and approbation 
of the justice : Whether he is authorized 
to grant a new trial or not, if he enter- 
tains a motion for that purpose, or im- 
properly sets his judgment aside, and ' 
afterward reinstates it, it is competent 
to execute a bond for an appeal, within 
the time i^rescribed by the statute, after 
his determination is luade known. Moore 

V. Jones, 13 A. R. 301. 

7. Neither appeal, nor certiorari, vnll 
lie from the judgment of a justice of the 
peace, to the county court, in a suit 
founded upon a tort, when the damages 
claimed do not exceed $20 : The " supe- 
rior" court spoken. of in the statute, to 
which the appeal is to be taken, is the 
circuit court. Waddle v. Dumas, 13 A. 
R. 412. 

8. A confession of judgment before a 
justice of the peace, is a release of er- 
rors ; and the judgment cannot be re- 
moved by appeal, or certiorari: If the 
judgment was confessed by mistake, or 
the confession was procured by fraud, it 
seems, a court of chancery would afford 
relief. Wilson v. Collins, 9 A. R. 127. 

9. An appeal will not lie from the 
judgment of a justice of the peace, which 
is not decisive of the case. Wyatt v. 
Judge, IV.Zl. 

10. An appeal lies to the county court, 
from the judgment' of a justice of the 
peace, rendered against a constable and 
his sureties, upon a notice alledging that 
the constable had failed to execute a ca. 
sa. Patterson v. Grace, 1 A. R. 264. 

11. Where an action is brought against 
several defendants, in a justice's court, 
one of them, without the concurrence of 
the others, mav prosecute an appeal. 
Craig v. Atioood, 1 S. & P. 86. 

(b) OfiJie Appeal Bond. 

12. An appeal from a justice of the 



APPEAL AND CERTIORARI. 



65 



peace, should not be quashed for a de- 
fect in the bond, unless the appellant, 
upon being required by the court, fails 
or refuses to execute a perfect one. Car- 
ter V. Pickard, 11 A. R. 673. Jenkins v. 
Cmiletj, 1 S. 61. 

13. Upon an appeal from a justice of 
the peace, the defendant and his sureties 
acknowledged, that they were bound un- 
to the jjlaintifF in a definite sum " for the 
payment of the principal, costs, charges, 
and all expenses attending the suit," 
between the plaintiff and the defendant, 
and that the latter had " appealed from 
the justice's court of Beat No. 3, for the 
county," &c., to the circuit court, to be 
liolden, &c: Held, that although the 
bond did not conform literally to the act, 
yet it was substantially sufficient, and 
was equivalent to a condition " to prose- 
cute the appeal to effect, and in case the 
appellant be cast therein, to pay and 
satisfy the condemnation of the court." 
Windham ^r. Coats, 8 A. R. 285. 

14. The sureties in an appeal bond, 
are not liable beyond its penalty ; and if 
a judgment is rendered for a greater 
amount, though objected to, in the pri- 
mary court, it will be reversed on error. 
Ih. 

15. If an, appeal bond recites the tirae 
when a judgment was rendered, its 
amount, &c., that the' defendant had 
prayed an appeal to the "next county 
court," is dated, and in other respects 
conformable to the statute, it will be 
sufficient, though the time when the 
court sits is not stated. Bancroft v. Stan- 
ton, 7 A. R. 351. 

16. A judgment mine pro tunc, may 
be rendered against the surety in an ap- 
peal bond, at a term subsequent to that 
at Avhich a recovery was had against the 
appellant; and the judgment against 
the appellant, together with the appeal 
bond, will be sufficient to authorize such 
a judgment against the surety. lb. 

17. An appeal bond, conditioned that 
the appellants shall j^rosecute their ap- 
peal with effect, and if they " fail there- 
in, then pay the judgment, with such 
damages and costs as shall be adjudged 
against them in said court," substan- 
tially conforms to the statute. Light- 
foot V. Strahan, 7 A. R. 444. 

18. When a suit is commenced by one 
person, for the use of another, in a jus- 
tice's court, and an appeal is taken by 
the plaintifiF, it is no defect if the name 

1—9 



of the nominal party is omitted in the 
appeal bond. McBarnett v. Breed, 6 A. 
R. 476. 

19. The surety in an appeal bond, is 
only liable to the extent of the penalty 
of the bond, and Avhen that is only $5 
25, this court will judicially notice, that 
the costs exceed that sum : It will there- 
fore correct the judgment as a clerical 
misentry, and render judgment, against 
the principal and surety, for the costs, 
not exceeding the penalty, and for the 
excess against the principal only, at the 
costs of the plaintiff in error. Ih, Mc- 
Keen v. Nelms, 9 A. R. 507. 

20. When an administratrix appeals 
from the judgment of a justice of the 
peace, she may plead the insolvency of 
the estate she represents ; and if the plea 
be found true, no judgment can be ren- 
dered against the sureties to the appeal 
bond. Lunsford v. Baskins, 6 A. R. 512. 

21. A bond given on appeal from the 
judgment of a justice of the peace, which 
does not sIioat, that the judgment was 
rendered against the defendant, what the 
amount of^ the judgment was, nor to 
what court the appeal was taken, is a 
nullity; and Avill not authorize a judg- 
ment to be i-endered against the sureties, 
though the defendant jto the judgment 
may voluntarily appear, and judgment 
be rendered against him. Wetmnpka & 
Coosa Bail-road Co. v. Bingham, 5 A. 
R. 657. 

22. An appeal bond given by the 
plaintiff, conditioned to sustain and 
prosecute the appeal, will not sustain a 
judgment thereon against the sureties to 
it, the words, "to pay and satisfy the 
condemnation of the court," being re- 
quired by the statute, and omitted from 
the condition of the bond. Qtiimi v. 
Adair, 4 A. R. 315. 

23. When a summary judgment is au- 
thorized upon a bond, the same con- 
struction is to be given to the bond, as 
would be, if the recovery were sought by 
suit. II). 

24. The statute requiring the appel- 
lant from the judgment of a justice of 
the peace, to give bond, applies as well 
to the plaintiff, as tg the defendant. lb. 

25. When the appeal bond taken by 
the j ustice of the peace, before whom a 
cause was tried, shows the sum for which 
a judgment was rendered, it is irregular 
to dismiss the appeal, although the jus- 
tice has omitted to send a statement of 



60 



APPEAL AND CERTIORARI. 



the case to the appellate court. LarcJier 
V. -Scott, 2 A. R. 40. 

26. Semble: If an appeal be prayed 
within five days after the rendition of a 
judgment by a justice of the peace, the 
bond may be executed at any time be- 
fore the issuance of an execution: This 
court will not, therefore, presume, that 
an appeal has been taken after five days, 
merely from the fact, that the appeal 
bond is dated after that period. Johnson 
V. Sale, 3 S. & P. 331. 

27. An appeal bond payable to a par- 
ty who is dead, is void, and no judgment 
can be rendered on it. Frierson v. 
BlaUsley, 3 S. 267. 

28. An appeal bond may be sufficient, 
though not signed by the appellant. 
Boden v. Boland, 1 S. 266. 

29. On appeal from a justice's judg- 
ment, the appeal bond is sufficient evi- 
dence that a judgment was rendered. 
McAlpin V. Pool, Minor, 316. 

30. If no penalty be inserted in an ap- 
peal bond, the appeal must be dismissed. 
Henry v. Gamble, Minor, 6. 

31. An appeal from a judgment of a 
justice of the peace, cannot be dismissed 
after the return term, for the insufficien- 
cy of the appeal bond, unless the motion 
to dismiss is made at that term, and con- 
tinued. Jenkins v. Cauley, 1 S. 61. 
Payne v. Martin, 1 S. 407. 

32. If no bond is filed however, a dis- 
missal may be claimed at any time. 
Payne v. Martin, 1 S. 407. 

(c) Proceedings on Appeals. 

33. In an appeal cause, the judgment 
of a justice of the peace, Avill not be re- 
versed, because the cause of action is 
not properly indebitatus assumpsit, when 
the action is for the A'iolation of a con- 
tract, and the damages not excessive. 
Cross V. Worrall, 11 A. R. 108. 

34. If the plaintiff in a jvidgment ren- 
dered by a justice of the peace, receives 
the amount from the defendant, after an 
appeal is taken, but before the papers 
are sent up, he cann6t recover either 
damages or costs, upon the appeal. An- 
drews V. Longmire, 11 A. R. 166. 

35. Where it appears from the papers 
sent up by a justice of the peace, to the 
circuit court, that three judgments had 
been rendered by him against a garni- 
shee, and the condition of the appeal 
bond recites, that an appeal was taken 



in "the three different cases," but the 
transcript of the justice contains the pa- 
pers in but one only, it cannot be in- 
tended, that all the cases were consoli- 
dated by the justice. Carter v. Pickard, 
11 A. R. 673. 

36. Where the record does not state, 
at whose instance an appeal was quash- 
ed, it must be intended, that the motion 
for that purpose was made at the in- 
stance of the appellee, who was involun- 
tarily brought before the court. J6.' 

37. An appeal from the judgment of a 
justice of the peace, is a suit at law; and 
the unsuccessful party must be charged 
with aH t;osts, unless the case be within 
the act of 1824, which provides, that if 
the defendant appeal, and the plaintiff 
recover less than the judgment of the 
justice, the appellate court may give 
judgment against either party for the 
costs"; ' and that if a successful plaintiff 
appeal, and recover no more than was 
adjudged to him by the justice, he shall 
pav all costs. Beason v. Riddle, 11 A. 
R.'743. 

38. And if the successful party, be 
impraperly charged Avith the costs, 
against his objection, the error is not a 
clerical misprision, amendable at his 
costs, on error ; but is a ground for re- 
versing the judgment. Ih. 

39. After an appeal from a justice, no 
plea in abatement can be interposed to 
disclose a defect in the affidavit for the 
attachment, which was the process in 
the suit : This is a defect in the proceed- 
ings of the justice, and is cured by the 
statute. Clougli v. Johnson, 9 A. R. 
425. 

40. Upon appeal, or certiofari from a 
justice's court, there can be no change of 
parties ; they must be the same as in the 
inferior court. Wilson v. Collins, 9 A. 
R. 127. Moffet v. Wooldridge, 3 S. 322. 
Smit7i-Y. Cobb, 1 S. 62. Bettis v. Nichol- 
son, 1 S. 349. Taylor v. Acre, 8 A. R. 
491. Frierson v. Blakesley, 3.S.-267. 
Mooney y. Ivey, 8 A. R. 8i0. 

41. On the trial of an appeal from a 
justice of the peace, a brief statement of 
the plaintiff's demand is sufficient. Mc- 
Alpin V. Pool, Minor, 316. 

42. The declaration, or statement in , 
an appeal case, is not subject to the tech- 
nical rules of pleading; if it shows in 
general terms, a debt due,' or a contract 
to be performed, and a breach, it is suf- 
ficient. Hanks v. Uinson, 4 P. 509. 



APPEAL AND CBETIORARI. 



67 



Bpann \. Boyd, 2 S. 480. Morrison v. 
Morrison, 3 S. 444. 

43. Where the summons issued by a 
justice of the peace, describes the cause 
of action as a promissory note, and on 
appeal, the' statement describes the in- 
strument sued on as a bond, the variance 
is not material. Bradford v. HiUiard, 1 
P. 13. 

44. Where th-e statement in an appeal 
case, sets out a note payable in cotton, 

•but omits to state the value of the cot- 
ton,- the 'omission is cured by a verdict, 
ascertaining the value, and by the stat- 
ute of jeofails. Irvin v. Nichols, 5 S. & 
P. 189. 

45. In appeals from justices of the 
peace, it is not necessary for the parties 
to make up an issue upon paper ; but 
■where the defendant relies on a tender, 
it is competent for the court to require 
him to prove every fact, necessary to make 
out such a plea, formally pleaded : And 
where the word "tender," is found writ- 
ten in the transcript, but not signed by 
counsel, it cannot be intended, that" it 
was received by. the plaintiif, as a plea, 
and that by going to trial, he waived the 
right to require the production of the mo- 
ney. Harbin v. Knox, 7 A. R. 676. 

46. In appeal cases, where the sum 
sued for, exceeds twenty dollars, a dec- 
laration or statement must be filed. Mof- 
att V. Bragg, 9 P. 424. Boden v. Boland, 
1 S. 266. Gayle v. Turner, Minor, 204. 
Steelman v. Owen, 8 P. 562. 

47. But, where the demand does not 
exceed $20, a declaration is unnecessary; 
but if the plaintiff files one, he must ob- 
serve the rules of pleading : Where, 
therefore, in an action for marking a 
hog, the declaration omits to aver, that 
the defendant- marked the hog in his 
mark, the omission is a fatal defect. 
Beagh v. Spann, 3 S. 100. 

48. Where, on an appeal from a jus- 
tice of the peace, the amount in contro- 
versy exceeds twenty dollars, the case 
mu.st be tried by a jury, unless the mode 
of trial is waived by the form of plead- 
ing, or otherwise. Patterson v. Grace, 1 
A. R. 264. 

49. Where the demand is under twen- 
ty dollars when the warrant issues, but 
is increased to, more than that sum, du- 
ring the pendency of the appeal, the is- 
sue is properly triable by a jury; but if 
the demand is under twenty dollars, and 
issue is joined to the country, the judg- 



ment will not be reversed, because the 
issue was tried by a jury, instead of the 
court. McGreio v. Ackmis, 2 S. 502. 

50. On appeal from the judgment of a 
justice of the peace, the trial is had, de 
novo, on the merits of the case; it is 
therefore error, to quash the proceedings 
for a defect in the warrant. Mc Crory v. 
Smith, 1 A. E. 157. Patterson y. Grace, 
1 A. R. 264. Butledge v. Butledge, 2 S. 
400. Gayle v. Tiirner, Minor, 204. Need- 
ham V. Neusom, Minor, 407. Perry v. 
Brown, Minor, 57. Harrison v. Danelly, 
5 P. 213. Murfs v. Harding, 6 P. 121. 
Harty. TiirJc,15 A.H. 675. CatierlinY. 
Sjnnks, 16 A. R. 467. 

51. Cases carriedfrom justices' courts 
into the circuit, or county court, by cer- 
tiorari or appeal, are triable de novo, on 
their merits and equity ; and a payment 
made after the rendition of a judgment 
by a justice, is available, without a spe- 
cial plea, 2Mis darrein continuance. Ha- 
gen v. Thompson, '2 P. 48. 

52. If the proceedings before a justice 
of the peace, are regular, and the suit is 
removed to the county or circuit court, 
after judgment, they- ought not to be 
ciuashed, because the plaintiff declares 
in detinue or trover; the proper course 
is, to require the plaintiff to file a state- 
ment of his cause of action, when any 
qitestion as to its sufficiency, or the juris- 
diction of the justice, can be raised on 
demurrer. Williams v. Hinton, 1 A. R. 
297. 

53. Although the statute requires, 
that appeals from justices of the peace, 
shall be tried according to the equity and 
justice of the case, yet when a warrant is 
issued by one justice, which is indorsed 
by another in a different county, who re- 
quires it to be served, and returned to 
the justice who issued it, and it is return- 
ed to the county in which it was issued, 
and there tried by athird justice, the pro- 
ceedings are so irregular and destitute of 
the forms of law, as to require that they 
should be quashed. Hempliill v. Coats, 
4 S. & P. 125. 

54. The same rules which govern caus- 
es in justices' 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, a- 
gainstthe consent of the plaintiff; biitif 
he omits to require the court thus to limit 
its judgment, when the jury certifies a 
sum greater than fifty dollars, he will, 



APPEAL AND CERTIORARI. 



upon error, be presumed to have assent- 
ed to the utmost exercise of the court's 
jurisdiction. Smith v. Fleming, 9 A. R. 
768. 

65, The jurisdiction of justices of the 
peace, is limited to cases in which the 
amount in controversy, does not exceed 
fifty dollars; and where a judgment ren- 
dered by a justice, is appealed from, the 
recovery in the appellate court, should 
not exceed that sum, with interest from 
the time the justice's judgment was ren- 
dered : But if the judgment on appeal, 
be rendered on verdict, for more than 
that sum, and interest, it will not be 
reversed, Pniitt v, Stuart, 5 A. R. 
112, 

66, Where, in a cause removed by ap- 
peal from a justice of the peace, the judg- 
ment of the county court recites, that the 
parties came by their attorneys, and 
thereupon came a jury, &c., who return- 
ed a verdict for the plaintiif, the absence 
of a statement of the cause of action, plea 
and issue, furnishes no ground for the 
reversal of the judgment. Bancroft v. 
Stanton, 7 A. R. 351. 

57. When an appeal is taken, in an 
admiralty suit, from the judgment of a 
justice of the peace, rendered in the city 
of Mobile, it cannot be objected in the 
circuit court, that the justice was elected 
for a beat out of the city, and therefore, 
under the statute, disqualified to act. 
Monroe v. Brady, 7 A. R. 59. 

58. When several, suits, by material 
men, and laborers, commenced before a 
justice of the peace, are removed by ap- 
peal into the circuit court, the refusal of 
that court to consolidate the suits, can- 
not be revised in this court, although a con- 
solidation would have been properly or- 
dered, lb. 

59. The omission to render a judg- 
ment of condemnation against a steam- 
boat, when s.n appeal is taken on behalf 
of the owners, is not an error of which 
the parties to the appeal bond, willbe per- 
mitted to complain, as they cannot be 
prejudiced by it: Such an omission is 
clerical, and may be amended on motion, 
if necessary. lb. 

60. Where a bankrupt is sued before a 
justice of the peace, and omits there to 
plead his discharge, he rasij, notwith- 
standing, insist upon it as a defense, 
when the case is appealed by him to the 
circuit court. McCary v, Mahe, 7 A. R, 
356, 



61. When the sum claimed in an ap- 
peal case, is less than $20, it is error to_ 
render a final judgment b.y default, unless 
the debt is ascertained by a writing, Ke- 
num V. Henderson, 6 A, R. 132, Martin 
V. Price, Minor, 68. 

62. But if the sum sued for is ascer- 
tained by a writing, a final judgment by 
default may be rendered. Bevin v. Good- 
man, Minor, 90. Kemim v. Henderson, 6 
A. R. 133. 

63. An appeal from the judgment of a' 
justice of the peace, cannot be tried at the 
first term of the court to Avhich the ap- 
peal is prosecuted, unless it appear, that 
the appellee, his agent, or attorney, has 
had five days notice of the appeal, previ - 
ous to the term to which the appeal is ta- 
ken, or unless the constable -return non 
est inventus, to the notice issued by the 
justice. Hancock v. Holmes, 3 A. R. 9. 

64. Nor can a judgment by default be 
taken at the term to which the appeal is 
returrlable, without notice of the appeal, 
Vriggins v, Perryman, 4 S. & P. 94. Bet- 
tis V. Kicliolson, 1 S,-349. 

65. To sustain a judgment of non |;ro5. 
in a case carried by appeal from a jus- 
tice's court, it shoiild appeal", that the no- 
tice of the appeal; required by the stat- 
ute, was served, or that the judgment 
was rendered at a term subsequent to 
that, to which the appeal was taken, Wy- 
att V. Avery, 14 A. R. 586. 

66. The act of 1843, directing appeal 
and certiorari cases then pending in the 
circuit court of Mobile county, to be 
transferred to the county court, does not 
deprive the circuit court of jurisdiction 
in a case then pending, or require the 
court mero motn, to repudiate it: If, 
therefore, such a case be tried, without 
objection, the judgment will not be re- 
versed. Vaughan v. Seed, 7 A. R. 740. 

67. On appeal from a justice of the 
peace, the amount of the recovery, and 
not the amount of damages laid in the 
declaration, is to be looked to, to show 
the jurisdiction of the court. Hart v. 
Turk, 15 A, R, 675. Cothran v. Weir, 
3 A, R. 24. 

68. Where a judgment is rendered by 
a justice of the peace, for a sum exceed- 
ing fifty dollars, which is removed by 
appeal to a higher tribunal, the appel- 
late court should not, on motion, vacate 
the judgment; the correct practice un- 
der the act of 1819, is to put the defend- 
ant to plead the want of jurisdiction in 



APPEAL AND CERTIORARI. 



69 



abatement. Bentley v. Wright, 3 A. K. 
607. . 

69. Where a statement filed in an ap- 
peal case, describes a note of fifty dol- 
lars, it is not available on error, that the 
sum sought to be recovered was beyond 
the jurisdiction of the justice; noa con- 
stat, but the interest had been remit- 
ted. Ih. 

70. When an appeal is taken before a 
final judgment is rendered, the appellate 
court should mero motu, repudiate the 
cause. Wyait v. Judge, 7 P. 87. 

71. No objection can be taken to a 
warrant, issued by a justice of the peace, 
in the firm name of the plaintifis ; and, on 
appeal, the names may be recited at 
length in the statement, or declaration. 
Snoio V. Rajj, 2 A. R. 344. Condrey v. 
Henley, 4 S. & P. 9. 

72. When the defendant, in an a.ppeal 
cause pending in the circuit court, offers 
to make his defense against the plain- 
tiff's demand, the court cannot refuse to 
hear the defense, on proof by witnesses, 
that the defendant agreed, that this 
cause should a,bide the decision of anoth- 
er against him, which was shown to 
have been decided after the agreement: 
Such an agreement, to be binding, must 
be in writing, pursuant to the 14th rule 
of court. Ransom Y.Peters, 2 A. R. 647. 

73. When upon an appeal from the 
judgment of a justice of the peace, the 
defendaiat is the appellant, and the 
amount of the plaintiff's recovery is di- 
minished, though not entirely defeated, 
the court may render judgment against 
either party for costs, as justice may re- 
quire ; and this discretion cannot be re- 
vised by an appellate court. •Dill v. Pli il- 
Ups, 13 A. R. 350. 

74. Judgment of affirmance may be 
rendered in this court, on certificate, in 
cases of appeal, as well as of writs of 
error, Adams y. Adams, 3 S. 57. 

75. The statute of 1818, authorizing 
discontinuances as to joint defendants, 
not served with process, includes a war- 
rant issued by a justice of the peace ; and 
a discontinuance may be entered in the 
circuit' court, after an appeal. Wade v. 
Robinson, 1 S. 423. 

76. Proceedings against a garnishee 
in attachment, before a justice of the 
peace, when removed to the circuit court, 
are tried de novo, and the garnishee has 
a right to answer anew. Colman v. 
Waters, 3 P. 381. 



77. Where several suits are depend- 
ing between the same parties, on appeal, 
or by certiorari from a justice of the 
peace, the court may, at the instance of 
either party, direct a consolidation, un- 
less the other can show that it will pre- 
judice him. Cooper v. Maddan, 6 A. 
R.431. 

78. A consolidation of several appeals 
for money demands, betweeia the same 
parties, will authorize the court to ren- 
der a judgment for the entire amount, 
against the sureties in the several appeal 
bonds, if the same persons are sureties 
in all the bonds. Wetumpka & Coosa 
Rail-road Co. v. Binaliam, 5 A. R. 
657. 

79. Trials of the right of property, 
commenced before ajvistice of the peace, 
and carried by appeal to the circuit 
court, cannot be consolidated. Poivell v. 
Gray, 1 A-R- 77. (Overruled, in effect, 
by Wetumpka & Copsa Rail-road Co. 
V. Bingham, 5 A. R. 657.) 

80. Where an action is brought by one 
person, for the use of another, to reco- 
ver for work and labor, the nominal 
plaintiff cannot recover, upon proof that 
the work Avas done by the party for 
whose use the suit is brought, unless he 
stood in such a relation, that the right 
to compensation inured to him, although 
the suit originated before a justice of the 
peace.. Mooney v. Ivey, 8 A. R. 810. 



II. Certiorari. 
(a) When granted by the Supreme Court. 

81. Records attached to the trans- 
cript, but not certified as a part of it, 
will not be considered in this court, al- 
though referred to by the bill of excep- 
tions, but if the counsel for the plaintiff 
in error, states he is surprised by an ob- 
jection to the records, at the argument, 
and asserts they are the same used at 
the trial, this court Avill award a certio- 
rari. Quigley v. Campbell, 12 A. R. 
58. 

82. For the purpose of sustaining a 
judgment, a certiorari will be granted, 
on motion, to bring up a full record, 
even after argument on errors assigned. 
Judson V. Eslava, Minor, 71. McDonald 
V. Gayle, Minor, 98. Brown v. Towers 
Minor, 370. 



70 



APPEAL AND CERTIORARI. 



83. But, after argument, a certiorari, 
the object of which is to reverse a judg- 
ment, will not be awarded. McDonald 
V. GayJe, Minor, 98. 

84. Diminution is not to be presumed ; 
it must be shown before a writ of certio- 
rari will be granted^ Mullary v. C'asJca- 
den, Minor, 20. 

85. And the record must be certified, 
before such writ will be awarded. James 
V. Carmick, Minor, 20. 

86. A certiorari will not be awarded 
for a paper referred to in a bill of excep- 
tions, if it be not sufficiently identified. 
■Looneij v. Busli, Minor, 413. 

87. The first or second transcript must 
be solely relied on ; one cannot be amend- 
ed by the other. Loicnsherry v. Bullard, 
Minor, 315. 

88. A certiorari will not be awarded 
for the purpose of showing, that after a 
verdict was returned, it was modified by 
the court. JEades v. Duncan, Minor, 389. 

89. A certiorari will be awarded for a 
copy of the opinion of the judge, on the 
trial in the court below. Olds v. Sargent, 
Minor, 320. 

90. In a criminal case, this court will 
not issue a certiorari to bring up any 
parts of the record which do not relate 
to the questions of law reserved for its 
opinion. The State \'.Shelton, 3 S. 343. 

(b) When the proper remedy. 

91. Semble: If a cerfiorari can be sued 
out to set aside or quash an order of the 
commissioners of roads and revenue, in 
the matter of a public road, it can only 
be in the name of the state, upon the re- 
lation of some individual showing a di- 
rect proprietary interest injuriously and 
illegally alTected l)y the order. Moore v. 
Hancock, 11 A. R. 245. (But see Com- 
missioners of Talladega \. , Thompson, 15 
A. R. 134, and JBarnett v. The State, 15 
A. R. 829.) 

92. A certiorari will not lie to correct 
the action of the commissioners of roads 
and revenue, in laying out a public road, 
until they have made an order confirm- 
ing the report of the jury. Smith v. The 
Commissioners, - &c. of Lauderdale, 1 S. 
183. (See Moore v. Hancock, 11 A. R. 
245.) 

93. A creditor whose claim is rejected 
at the final settlement of an insolvent es- 
tate of a deceased person, commenced 
prior to 1843, who is not a party to the 



final decree, cannot sue out a writ of er- 
ror; his remedy is by certiorariivom the 
circuit court. Stout v. IFarc?, ,10 A..R. 
628. Cawthorne v. Weisinger, 6 A. R. 
714. ■ 

94. And for the improper admission 
of a claim, the remaining creditors niay 
also seek redress in the same mode. 
Cawthorne v. Tl'eisinger, 6 A. E. 714. 

95. Where the petition of administra- 
tors claiming distribution as the repre- 
sentatives of a distributee, is dismissed, 
and the final settlement in the orphan's' 
court is made with other parties, the pro- 
per mode to revise the proceedings re- 
jecting the claim, is by certiorari; a writ 
of error will be dismissed. Graham v. 
Ahercromhie, 8 A. E. 552. 

96. A refusal of the orphans' cotirt to 
entertain a petition for a share in the 
distribution of an estate,- cannot be re- 
dressed by writ of error: The remedy is 
by certiorari to the circuit court. Foiv- 
ler V. Treivhit, 10 A. R. 622. 

97. The circuit court may take juris- 
diction by certioraiH, of a case in which 
the intendant of a corporate town, has 
rendered a judgment against a- person 
resident within the same, for the viola- 
tion of one of its by-laws. Intendant 
and Council of Marion v. Chandler, 6 
A. R. 899. 

98. A stranger to a judgment or de- 
cree of the orphans' court, cannot carry 
it by certiorari, to the circuit court; and 
if the circuit court should determine on 
the errors assigned, its judgment will be 
reversed and remanded, that -the order 
granting the certiorari may be quashed ; 
and this may be done on the applica- 
tion of the party, at whose instance the 
cause was removed into the circuit court. 
Watson V. May, 6 A. R. 133. 

99. A judge of the county court, has 
no authority to award a writ of certiorari, 
in a suit for a forcible entry and detain- 
er, returnable into the circuit court. Co7'- 
ner v. Corner, 3 A. R. 524. 

100. The refusal of the circuit court, 
to award a certiorari when a diminution 
of the record is suggested, will not be 
revised on error. Carter v. Douglass, 2 
A. R. 499. 

101. The circuit courts have jurisdic- 
tion to award writs of certiorari, to re- 
view the proceedings of inferior courts 
of criminal jurisdiction. JoJm Vi The 
State, 1 A. R. 95. 

102. The writ of certiorari, is the ap- 



*-f 



APPEAL AND CERTIORARI. 



71 



propriate writ, where a statute creating 
an inferior criminal court, has provided 
no means to review its judgments, lb. 

103. Although the special courts crea- 
ted by the act of 1832, for ihe trial of 
slaves charged with capital oifenses, are 
required to fix the time for executing a 
condemned slave, within a period of ten 
days froni iife sentence, yet the allow- 
ance of a c&iiorari, is a siipersedeas of 
the sentence, until it is quashed', or the 
inferior tribunal is directed to go on, by 
writ oi procedendo. lb. 

104. It is always correct, to insert a 
special clause in a writ of certiorari, to a 
criminal court, directing it to operate as 
n supersedeas ; and if necessary, also to 
direct a special writ of supersedeas to the 
sheriff, to delay execution until the case 
is heard and determined. lb. 

105 . It is not error for the circuit court, 
to refuse a- certiorari, when it is obvious, 
that the object thereof, cannot be there- 
*by attained. The State v. Williams, 3 
S. 454. 

(c) To Justices of the Peace, and proceed- 
ings thereon. 

106. A certioran, to review the judg- 
ment of a justice of the peace, cannot be 
regularly sued out, after the expiration 
of three years from the rendition of the 
judgment ; and if sued out after that time, 
may be dismissed. Mason v. Moore, 12 
A.E.578. 

107. Upon certiorari, judgment may 
be entered against a partjy to the origin- 
al judgment, who did not join in the 
bond to obtain the writ of certiorari. 
Dobson V. Dickson, 8 A, K. 252. 

108. 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. Wilson 
V. Collins, 9 A. K. 127. 

109. The sureties in a bond for a cer- 
tiorari, are only lial^le to the extent of 
its penalty ; and if ju.dgment be render- 
ed against them for a larger sum, it may 
be amended on motion in the court be- 
low, or in an appellate court, at the 
costs of the plaintiff in error. McKeen 
V. Nelms, 9 A. R. 507. 

.^' 110. Where sixteen judgments, be- 

tween the same parties, were rendered 
by a justice of the peace, and removed 
by certiorari to the county court, it was 
held competent for the court to direct, 



that but one bond should be executed, as 
the condition on which the certiorari 
and supjersedeas should issue. Cooper v. 
Maddan, 6 A. R. 431. (But see Smith 
V. Hearne, 2 S. & P. 81, where it is de- 
cided, that it is good ground for quash- 
ing a writ of certiorari, that but one bond 
is given, and one writ issued, to carry 
up two cases.) 

111. Where several suits are depend- 
ing between the same parties, on appeal, 
or by certiorari, from the judgment of a 
justice of the peace, the court may, at the 
instance of either party, direct a consoli- 
dation, vmless the other party can show 
that it Avill prejudice him. lb. 

112. The city court of Wetumpka, is a 
court of limited jurisdiction, and has no 
authority to issue a certiorari, to a jus- 
tice of the peace. Gra>/ v. Apperson, 3 
A.R.328. 

113. The statute, which confers upon 
judges of the county court, within their 
respective counties, power concurrent 
with the judges of the^ circuit court, to 
grant writs of certiorari and supersedeas, 
does not authorize a judge of the former 
court, to supersede an execution issued 
by a justice of the peace, unless the 
supersedeas issue as ancillary to a certio- 
rari, which removes the cause from the 
justice for a trial de novo. Cray v. Den- 
nis, 3 A. R. 716. Boyd v. Woodfin, 3 
S. 357. 

114. A- certiorari, to remove a judg- 
ment, rendered by a justice of the peace, 
into the circuit or countj'^ court, is not 
grantable upon matters occurring sub- 
sequent to the rendition of the iudgment. 
WheeloclcY. Wriqlt, 4 S. feT. 163. Bobo 
V. Thompson, 3 S. & E. 385. ' 

115. A certiorari, therefore, is not 
grantable to determine a question of the 
payment of- an execution issued by a jus- 
tice of the peace. lb. 

116. Where there are two successive 
writs of certiorari, the suing out of the 
second one, is a waiver of error in the 
decision of the first. Payne v. Martin, 
1 S. 407. 

117. On certiorari, in a case of forci- 
ble detainer, to require bond and securi- 
ty, is matter of legal discretion , and in 
such a case, the court may order a new 
bond to be given. Childress v. 31c Gehee, 
Minor, 131. 

118. But where no exception is taken 
at the first term, and at a subsequent 
term, the certiorari is dismissed for the 



72 



APPEAL AND CERTIORARI. 



vrant of a bond, it is error. Payne v. 
Marlin, 1 S. 407. S. P. Alford v. Colson, 
8 A. R. 550. 

119. On certiorari, to remove a judg- 
ment rendered b}* a justice of the peace, 
fifteen per cent, damages is not allowa- 
ble under the statute. Iludnall v. Mc- 
Carta, Minor, 402. Childs v. Crawford, 
8 A. R.731. 

120. And a judgment so entered, can- 
not be considered as a clerical mispris- 
ion, but is the fault of the party taking- 
it, and will be reversed, and rendered 
for the proper sum. CJdlds v. Crctio- 
ford, 8 A. R. 731. 

121. The county court, has no juris- 
diction by certiorari, or appeal, in cases 
of forcible entry and detainer. DunJiam 
V. Carter, 2 S. 496. 

122. In cases of forcible entry ,-brought 
up by certiorari, the trial must be on er- 
rors assigned in the record, lb. (Chang- 
ed by statute. Session Acts, 1849-'50, 
p. 81.) 

123. It is competent for a justice of 
the peace to quash an execution issued 
by himself; and a party prejudiced by a 
refusal to quash, may remove the pro- 
ceedings into a higher court by certiora- 
7-i. Gilleland v. Ware, 4 A. R. 414. 

124. It is no sufficient ground to dis- 
miss a certiorari cause, that the petition 
was verified before the clerk of the cir- 
cuit court, instead of some officer au- 
thorized to administer an oath. Jones v. 
Tomlinson, 8 A. R. 565. 

125. If the judge who ordered ?i cer- 
tiorari to be issued, deemed the fixcts 
stated in the petition, sufficient, the writ 
will not be dismissed on the ground, 
that those facts are insufficient. Casey 
V. Briant, 1 S. & P. 51. 

126. Where there is a defect in pro- 
ceedings removed by appeal or certiorari, 
from a justice of the peace, to the circuit 
or county court, a motion to dismiss, if 
available, should be made at the first 
term after the parties are in court, and 
before a continu.ance of the cause. Al- 
ford V. Colson, 8 A. R. 550. 

127. And where a defective certiorari 
bond is given, a motion to dismiss fin- 
that reason, must be -made at the first 
term to wliich the writ is returnable. 
Smith V. Hearne, 2 S. & P. 81. Payne v. 
Martin, I S. 407. Jenkins v. Cauley, 1 
S. 61. 

128. And even then, the motion can- 
not prevail, if the appellant will execute 



a sufficient bond. JenJcins v. Catdey, 1 
S. 61. Carter v. Pickard, 11 A. R. 673. 

129. The county court has jurisdic- 
tion of a trial of the right of property, 
removed by, cerfto?r(fri from the judgment 
ofa justice of the peace. Gregg v. Hinson, 
9 P. 631; (The county court is now 
abolished. Session Acts, 1849-'50, p. 
34, sec. 35.) 

130. Where two are sued before a jus- 
tice of the peace, if a j udgment is ren- 
dered against one ptily, Avho carries the 
case by certiorari into the county court, 
filing a declaration in that court against ' 
him alone, does not create a discontin- 
uance. Skinner v. McCarty, 2 P. 19. 

131. Sealing is an essential requisite 
to constitute a perfect bond, and an in- 
strument purporting to be a certiorari 
bond, but without seals, is void. lb. 

132. To a writ of certiorari, the justice 
returned the warrant, and a statement 
certifying, that he had rendered judg- 
ment, but not setting out a copy of the"^ 
judgment: Held, that by going to trial 
on the merits in the appellate court, all 
ii'regulai'ity in the justice's return, was 
waived. McGreio v. Adams, 2 S. 502. 

(d) When returnable to the Circuit Court. 

133. The circuit court, may take ju- 
risdiction by certiorctri, ofa case in which 
the intendant of a corporate' town, has 
rendered a judgment against a person 
resident within the same, for the viola- 
tion of one of its by-laws. Intendant & 
Council of Marion v. Chandler, 6 A. R. 
899. 

134. The circuit courts have jurisdic- 
tion to award writs of certiorari, to re- 
view the proceedings of inferior courts 
of criminal jurisdiction. John v. The 
State, 1 A. R. 95. 

135. On a writ of error from the coun- 
ty court, to the circuit court, a certiorari 
may be awarded, returnable instanter; 
and on its return, the cause may be 
heard at the same term. Lane v. Kirk- 
man, Minor, 411. 

136. A judge of the circuit court, has 
the power to grant writs of certiorari, 
returnable to that court, to correct the 
errors of the commissioners' court of 
roads and revenue, in the establishment 
of a new road, and to take cognizance 
thereof. Commissioners of Talladega v. 
Thompson, 15 A. R. 134. Barnett v. 
The State, 15 A. R. 829.. 



ARBITRATIOK. 



ARBITRATION. 

i. Of THE SUBJIISSIOX. 

II. Of the Award. 

(a) Validity, and Construction of Awards. 
{b) Effect of Awards, and herein of 

judgments upon them, 
(c) Of Plotiding, Enforcing, and Avoiding 

Awards. 



I. Of the Submission. 

1. The statutes which provide for the 
submission of matters to arbitration, the 
manner in which awards shall be made, 
their effect, &c., do not abrogate the 
common law on the subject, according 
to which, it seems, a parol submission is 
good ; and the award, if it speaks the in- 
tention of the arbitrators, and is unob- 
jectionable in itself, or for matters ex- 
trinsic, will be upheld, Jii/rd v, Odem, 
9 A. R. 755. Martin v. Chapman, 1 A. 
R. 278. 

2. A submission to arbitration, which 
speaks of an action for false imprison- 
ment, will include an action on the case, 
for the malicious use of process. Burns 
V. Hlndman, 7 A. R. 5-31. 

3. A Avritten submission to an award, 
will not be presumed to be in the custo- 
dy of one of the parties ; and having 
been delivered to one of the arbitrators, 
his testimony, and not the affidavit of the 
party, is the best evidence to prove, that 
it is lost, or mislaid, Pryor w M' Nainj, 
I S. 150. 

4. Before proving agreements, made 
by the parties in the progress of, and in 
reference to an arbitration, the submis- 
sion must be proved. lb. 

5. When an order is made to refer a 
cause to arbitration, and a trial is after- 
ward had before a jury, the reference 
will be considered as waived. Seainans 
V, White, 8 A. R. 657. 

6. An authority to an agent, stated 
thus, " if you can honorably and fairly 
settle with Reynolds for me, out of court, 
do so, if not let the court and jury settle," 
does not authorize a reference to arbitra- 
tors; nor will authority to exercise a 
reasonal)le discretion, or to submit to a 
reasonable sacrifice, confer such a pow- 
er. Scarborough v. Reynolds, 12 A. R. 
252, 

1—10 



7. Nor will a special authority confer- 
red upon an agent, in the management 
of a plantation, and the interests con- 
nected with it, to demand and sue for 
all moneys, &c., "subjecting myself to 
be sued through him, in the same man- 
ner as if I was personally present," au- 
thorize a submission of matters in dis- 
pute, to arbitration, at least until after 
suit brought. lb. 

8. It is competent for an executor, or 
administrator, to submit to ai'bitration, 
any controversy, in which the estate is 
concerned. Jones v. Deyer, 16 A. R. 221, 

9. When a submission does not show 
that certain actions were submitted, the 
transcripts of the actions will not be re- 
ferred to, to ascertain whether they were 
submitted. Lamar v. Nicholson, 7 P. 
158. 



II. Of the Award, 
(a) Validity and Constriiciiom of Awards, 

10. An award which discharges each 
from all demands of the other, and dis- 
misses all suits, is not conditional, but 
conclusive in favor of, and against each 
of the parties. Burns v. Hindman, 7 
A. R. 531. 

11. Where a case in which the amount 
in controversy, exceeds fifty dollars, is 
submitted to arbitration, upon the order 
of a justice of the peace, under the act of 
1824, and only half the referees sign an 
award, whether it is competent to show, 
that some of the others who did not sign 
it, gave their assent to it; or if the award 
is so defective as not to conclude in it- 
self, the controversy submitted, whether 
it can be assisted by pai'ol proof, qucere. 
Hubbert v. Collier, 6 A. R. 269. 

12. When arbitrators recite "under 
their hands and seals," that an award 
was made, but omit making a scroll op- 
posite their names, it is a sufficient com- 
pliance with the statute. Price v. Kirby, 
1 A. R, 184, 

13. No objection can be made to an 
award in the appellate court, which was 
not made in the court below, unless it 
appear from the record, that the award 
did not decide the matters in controver- 
sy, lb. 

14. An award will not be set aside, be- 
cause the arbitrators state as the ground 
of it, matter which is not a legal causa 



74 



ARBITRATION. 



of action. Goodwin v. Tarhrough, 1 S. 
152. 

15. Awards are much favored, and 
courts will intend every thing which the 
record will warrant, to sustain judgments 
rendered upon them. Tankersleij v. Bicli- 
ardson, 2 S. 130. 

16. An award must conform to the 
submission, under which it is made. 
Reynolds v. Reynolds, 15 A. R. 398. 

17. If arbitrators transcend their au- 
thority, the award, pro tanfo, will be 
void; but it will be good as to the resi- 
due, unless that which is void, so affects 
the merits of the submission, that it can- 
not, without injustice, be separated from 
the balance, lb. 

18. Every reasonable presumption will 
be made in favor of an award : and if, by 
the application of this principle, it can 
be brought Avithin the submission, and 
is, in other respects, unobjectionable, it 
will be sustained. lb. 

19. An award is not objeetiofiable'for 
want of mutuality, which directs the 
payment of a sum of money by one par- 
ty to the other, without prescribing any 
act to be done by the latter. lb. 

20. Where, under the submission of a 
cause, pending in court, to recover the 
amount of a bill single 'for §1,000, due 
the 1st of March, 1846, wherein A, was 
plaintiff, and B, was defendant, and in 
which the defendant had pleaded failure 
of consideration and fraud, the arbitra- 
tors awarded "that the said A, defend- 
ant, shall have and hold, the right, title 
and interest, in, and to the negro boy, 
Nelson, and that in consideration of the 
same, the note for $1,000, payable the 
1st day of March, 1816, drawn in favor 
of A, and signed by B, be paid, and that 
B, the defendant, pay the costs of- the 
suit," it was held, that the fair inference 
from the pleadings, and the language of 
the award was, that the slave was the 
consideration of the bill single, and that 
the arbitrators merely decided, that 
neither of the defenses, set up by the de- 
fendant, was valid ; that the award was 
not void for uncertainty, either in not 
naming the person to whom the money 
was to be paid, or in not specifying the 
amount of costs ; and that in determin- 
ing, that the defendant should pay the 
bill single, the arbitrators must l)e un- 
derstood, as meaning, that he should 
pay it, according to its legal effect, with 
interest. lb. 



(b) Effect of Aivards; and herein of 
judgments upon them. 

21. When an award is made between 
a principal, and one of two sureties, 
touching certain moneys alledged to 
have been placed in his hands for the 
payment of the debt, the other surety 
will be bound by it, if he assented to it, 
or was present when it was made, and 
did not dissent. McGehee v. McGehee, 
,12 A. R. 83. 

22. Where one party, with the assent 
of another, borrows money at a usurious 
rate of interest, to pay a debt for which 
both should provide, and after the pay- 
ment of such interest by the borrower, 
the other refuses to contribute, but by 
agreement with the borrower, submits 
the matter of interest to arbitrators, an 
award wliich adjudges him to pay half 
the interest, will be supported. Byrd v. 
Odem, 9 A. R. 756. 

23. Where a cause depending before a " 
justice of the peace, is, by agreement of 
the parties, submitted to arbitrators, 
who make an award, which is entered up 
as the judgment of the covirt, and an ap- 
peal is taken, the award is final, unless 
set aside for corruption, want of notice, 
or other improper conduct of the arbitra- 
tors, as well in the appellate, as in t'he 
inferior court. Wright v. Bolton, 8 A. 
R. 548. 

24. A surety for the performance of 
an award, to be made by certain arbi- 
trators named, is discharged from his 
liability as surety, by a substitution, 
Avithout his consent, of other persons as 
arbitrators. M'Kay v. Dodge, 5 A. R. 
388. 

25. An agreement to refer a contro- 
A'ersy^ arising out of a covenant of war- 
ranty, is not a bar to an action on the 
covenant. Bozeman v. Gilbert, 1 A. R. 
90. S. P. Stone v. Dennis, 3 P. 231.- 

26. No objection can be made to an 
award, in the appellate court, which was 
not made in the court below, unless it 
appear from the record, that the award 
did not decide the matters in controver- 
sy. Price V. Kirby, 1 A. R. 184. 

27. A verbal submission to an award 
is valid ; and an award, made pursuant 
thereto, will be binding, if the authority 
is not rcA'oked, before the award is made. 
Martin v. Chapman, 1 A. R. 278. 

28. C, as the agent of 0, entered 
into a submission Avith A, to refer cer- 



ARBITRATION. 



tain matters, under the statute ; the ar- 
bitrators made an aT^ard in favor of A, 
without stating against ■whom: Held, 
that it was eri-or to render judgment 
against C. Callalian v. M' Alexander, 1 
A. R. 366. 

29. Where a creditor of an estate, 
agrees with the administrator, to sub- 
mit his claims to arbitration, and to 
take judgment against him for the 
amount awarded, payable in one, two, 
and three years, and an award is made, 
and a judgment entered accordingly, the 
sureties of the administrator, are dis- 
charged frpm liability to, the creditor. 
Pylie V. Searcy, 4 P. 52. 

30. Where parties leave amatter in con- 
troversj^, to arbitration, neither of them 
can impugn the decision, for extrinsic 
causes, unless it be shown, that the arbi- 
trators have been guilty of corruption, 
partiality, or gross misbehavior. Bum- 
pass V. Webh, 4 P. 65. 

31. When a judgment purports to be 
founded on an award, neither the cause 
of action indorsed on the writ, nor that 
disclosed by the declaration, will be 
looked to, to support it: To sustain such 
a judgment, the order of reference must 
be shown by the record. Halsill v. Mas- 
sey, 2 A. R. 300. 

32. When a judgment, confirming an 
award of arbitrators, recites, that the 
"arbitrators were sworn according to 
law," if it does not appear from the re- 
cord, that an oath was administered to 
them before the award was made, this 
court will intend, that proof of that 
fact was made. Price v. Kirhy, 1 A. 
E. 184. 

33. An award under a submission 
made pursuant to statute, is as much a 
warrant for a judgment of a court, as 
the verdict of a jury, and must be fol- 
lowed strictly by the. judgment, both as 
to the amount, and the parties charged. 
Lamar v. Nicholson, 7 P. 158. 

34. No judgment can be rendered up- 
on an award, if the submission does not 
conform to the statute; but if good at 
common law, it may be the basis of an 
action. Ih. Davis y. McConnell, 3 S. 492. 

35. When an action against husband 
and wife, is submitted pursuant to stat- 
ute, and the award does not subject the 
wife, no judgment can be rendered 
against her. Lamar v. Nicholson, 7 P. 
158. 

36. To sustain a judgment upon an 



award, it is not necessary that the record 
should state the consent of the parties 
to submit to the award; or show that the 
cause was continued from term to term ; 
or that the defendant had notice of the 
time and place of making the award ; nor 
is a declaration necessary. Mendenhall 
V. Smith, Minor, 380. 

(c) Of Pleading, Enforcing, and Avoid- 
ing Aioards. 

3,7. In trespass, an award must be 
specially pleaded ; it cannot be given in 
evidence, under a plea of accord and 
satisfaction. .''Lhihbert v. Collier, 6 A..E. 
269. 

38. A party may avoid an award, by 
showing, that he was an infant when he 
entered into the submission. lb. 

39. An award may be pleaded in bar, 
thovigh the defendant has not performed 
it. McAlpin V. May, 1 S. 520. 

40. An award cannot be impeached 
for extrinsic causes, except for corrup- 
tion, partiality, or gross misbehavior 
of the arbitrators ; this liiay be proved 
by direct evidence, or facts which lead 
to the conclusion, that the award was 
influenced by dishonest motives. Bum- 
pass.\. jre&6, 4P. 65. 

41. But it may be impeached for a 
mistake of law or fact, apparent on its 
face.. Ih. 

42. After an award upon a submission 
of all demands of the parties against 
each other, chancery will not relieve one 
of the parties as to a claim which he for- 
got to lay before the arbitrators. M'Jim- 
sey V. Traverse, 1 S. 244. 

43. Chancery will not relieve a party 
against an award, after he has performed 
it, and acquiesced in it for five or sis 
years. M'Rae v. Buck, 2 S. & P. 155. 

44. A covenant, in an agreement, to 
submit matters of difficulty arising 
thereon to arbitration, do'es^not preclud* 
a right of action foi; a breach of the 
agreement, if there ha no arbitration 
pending, nor any award had, when the 
action is commenced. Stone v. Dennis, 
3 P. 231. S. P. Bozeman v. Gilbert, 1 
A. R. 90. 

45. A mere agreement to decide a 
controversy by arbitration, cannot be 
enforced at law, or in equity. Bozeman 
V. Gilbert, 1 A. R. 90. 

46. In an action upon a covenant to 
perform an award, a declaration is suffi- 



76 



ARBITRATION.— ASSIGNMENT. 



eient, which alledges, that an award was 
made in favor of the plaintiff, and that 
the defendant liad notice of it, and re- 
fused to perform it. Dodge v. McKay, 
4 A. R. 346. 

47. In an action upon a covenant to 
perform an award, tlie defendant is not 
entitled to oyer of the award ; but if it is 
granted, it is not error. Ih. 

48. When a settlement was based upon 
an arbitration in writing, evidence can- 
not be given of the terms of the settle- 
ment, without producing the aAvard. 
^mith v. McGehel, 14 A. K.404. 

49. In an action for the non-perfor- 
mance of an award, that the defendant 
should pay the plaintiff a certain sum in 
debts due by other persons, a final judg- 
ment by default for the amount in mo- 
ney, is erroneous. Horton v, Ronalds, 
2 P. 79. 



ASSIGNMENT. 

I. Deeds of Assignment for the bene- 

fit OF Creditors. 

{a) General Principles. 

(6) When Valid and what will pass by 

them, 
(c) When Void. 
{d) Distinction between Assignments 

and Deeds of Trust. 

II. Assignment of Choses in Action. 

[a] What may be assigned, and Who 

may assign. 
(6) Rights and Disabilities of Assignee. 



I. Deeds of Assignment for the bene- 
fit OF Creditors. 

(a) General Principles, 

1. It may be considered as settled law, 
that a debtor, in failing circumstances, 
may convey his property in trust, to pay 
one or more creditors in full, or to pay 
his creditors in unequal portions, pro- 
vided he relinquishes all control over it, 
and stipulates for no pecuniary benefit 
to himself, but fairly and bonajide ap- 



propriates it to the payment of his debts, • 
Ashurst V. Martin, 9 P. 566. Richards 
x.Hazzard, 1 S. & P. 139. , Robinson y^ 
Ra2)elye, 2 S. 86. Gazzam-v. Poyniz.^,A 
A. R. 374. GHmslicm v. Walker, 12 A. 
R. 101. Stover v. Herrington, 7 A. R.- 
143. 

2. And the debtor may lawfully stip- 
ulate, that those who accept the provi- 
sions of the deed, shall release him from 
anj' further liability upon their demands. 
Robinson v. Rapelyc, 2 S. 86. Ashursty, 
Martin, 9 P. 566. (Changed by statute. 
Session Acts 1849-'50, p. 67.) 

3. The time limited by the deed, with- 
in which the creditors may come in and 
assent to it, must neither be too long, 
and thereby improperly delay the credi- 
tors in the collection of their debts, nor 
so short, as not to afford time for examin- 
ation, and therefore, be merely illusory : 
The period allowed for such assent, 
must be stipulated in good faith, and 
regulated by the situation of the credi- 
tors. Aslmrst v. Martin, 9 P. 566. 

4. A deed of assignment can only be 
sustained, where the property conveyed 
by it, is devoted bonajide to the payment 
of the creditors, without stipulating for 
any benefit to the debtor, and where the 
equitable interests of the creditors are 
fixed and determined by the deed itself. 
Gazzam v. Poyntz, 4 A. R. 374. Rich- 
ards V. Hazzard,, 1 S. & P. 139. Grim- 
shaiv V. Walker, 12 A. R. 104. 

5. No principle is more decisively 
settled, by the decisions of this, and 
other courts, than that a deed of assign- 
ment, to be valid, must distinctly declare 
the uses, and that no control or coercion 
can be reserved in the deed to be exer- 
cised either by the debtor or his trustee,' 
and that no benefit can be stipulated for 
by the debtor: The debtor may declare 
the order in which the creditors shall be 
paid, and may exact a release from fu- 
ture liability as the price of the prefer- 
ence ; beyond this he cannot go. Grim- 
shcno V. Walker, 12 A. R. 104. Gazzam 
v. Poyntz, 4 A. R.382. (Bystatute, Acts 
1849-'50, p. 07, a stipulation for a re- 
lease, will render the deed void.) 

6. Where legal effect can be given to 
a deed of assignment, and the property 
is not placed beyond the reach of a cred- 
itor, it is not void ^er se. Tarver v. Roffe, 
7 A. R. 873. 

7. But where it appears from the deed, 
that the intention of it, is to hinder, de- 



ASSIGNMENT. 



77 



lay, or defraud creditors, the deed is 
fraudulent and void per se. Eicliards v. 
Hazzard, 1 S. & P. 139. Gazzam v. Poihitz, 
4 A. Pu 382. Ashnrst v. Martin, 9 P. 
576. 

8. A deed of assignment made by a 
debtor, to secure certain persons as his 
sureties, is not void, because the condi- 
tion is imposed, that they shall have no 
remedy by sale, under it terms, until 
they have first paid the security debt. 
Tarver v. Roffe, 7 A. R. 873. 

9. Nor is such a deed void on account 
of an imperfect description of some of 
the chattels conveyed hj it ; though it 
may be doubtful, how far a creditor will 
be affected by such a description, when 
he seeks to condemn the property imper- 
fectly described. lb. Eohinson v. Bajoe- 
hje, 2 S. 86. 

10. To justify a court in inferring that 
a deed was made with fraudulent inten- 
tions, where no fraud in fact is proved, 
two things at least must concur ; there 
must be creditors known to the parties, 
who may by the provisions of the deed, 
be delayed or hindered, in the collection 
of their debts, and the necessary conse- 
quence of the deed, must be, to produce 
such delay or hinderance. Pope v. Wil- 
son, 7 A. R. 690. 

11. Each partner possesses an equal, 
and general power, in behalf of the tii'm, 
to pledge, exchange, or otherwise dispose 
of the partnership effects, for any, and all 
purposes within the scope of the partner- 
ship : One partner may, therefore, assign 
property of the firm, for the benefit of 
one, of several, or of all the joint credi- 
tors : But whether he can make a gene- 
ral assignment, of all the partnership ef- 

• fects, qucere. Chdlum v. Bloodgood, 15 
A.R. 34. 

12. A voluntary assignment, by a debt- 
or, to a trustee, for the security of debts, 
is invalid to pass the title of the proper- 
ty to the trvistee, until it is assented to, 
either expressly or impliedly, by the cre- 
ditors, whose debts it is intended to se- 
cure. Nelson v. Dimn, 15 A. R. 502. 

13. If a creditor, for whose benefit, an 
assignment is made, dissents from it, 
and subsequently, by a new and distinct 
arrangement, acquires the right to dis- 
pose of the subject of the trust, his title 
will vest from the date of such arrange- 
ment, and cannot be extended back to 
the date of the assignment, so as to over- 
reach an intermediate equity. lb. 



14. Where a deed of assignment is not 
fraudulent on its face, the possession, 
and use of the property conveyed, by the 
assignor, in conformity with the express 
provisions cf the deed, cannot render it 
void. Abercrombie v. Bradford, 16 A. 
R. 560. 

15. The fraudulent intent of the grant- 
or alone, will not a\t)id a deed of assign- 
ment for the benefit of creditors. lb. 

(b) When Vatid, and loliat loill pass by 
them. 

16. A deed of assignment by a debtor, 
of all his effects, for the benefit of all his 
creditors, is not void on account of the 
debts and property not being particular- 
ly described and specified. Robinson v. 
Bapehje, 2 S. 86. 

17. Such a deed will be operative 
against an attaching creditor in this state,, 
though made in New-York. lb, 

18. A debtor has a full right to prefer 
some creditors to the exclusion of others; 
and may lawfully stipulate that those 
who accept the property conveyed, shall 
release him. lb. (Changed by statute^ 
Acts i849-'50, p. 67, so far as a stipula- 
tion for a release is concerned.) 

19. A deed of assignment, purporting 
to be a conveyance of all the estate of the 
debtor, which contains the folloAving pro- 
visions, does not, on its face, show an in- 
tent to delay, hinder, or defraud creditors^ 
1. To pay certain creditors described in 
a schedule marked A : 2. To pay, jjfn-i 
passv, such creditors described in sched- 
ule B, as shall, within one hundred and 
fifty days from the date of the deed, exe- 
cute the same, and release and discharge 
the debtor from future liability: 3. To 
pay all debts not pres'iously provided for, 
but that no debt shall be paid, unless the 
person entitled thereto, his agent, or 
some credible person, certify on oath that 
the same is due, and founded on a law- 
ful consideration: 4. That the trustee 
shall not be responsible for the acts of 
his agents, nor be chargeable for any 
moneys, except snch as shall be actually 
received by him : 5. That the trustee- 
shall sell tile trust property, at such pri- 
ces, and on such terms, as he may deem 
expedient. Ashurst v. Martin, 9 P. 566o. 

20. A provision in the deed of assign- 
ment, that the trustee shall be responsi- 
ble only for his own defaults, must, cia 
its face, be understood to import, thath& 



ASSIGNMENT. 



shall not be liable for tlie acts of such 
agents, as are necessary to enable him 
to execute the trust, selected in good 
faith, with a due regard to their fitness,' 
and with a proper super^^sion exercised 
over them. Ih. 

21. The time limited by the deed with- 
in wliich the creditors may come in ajid 
assent to it, must neither be too long, 
and thereby improperly delay the credi- 
tors in the collection of their debts, nor 
so short, as not to aiford time for exam- 
ination, and therefore, be merely illuso- 
ry : The period allowed for such assent, 
must be stipulated in good faith, and re- 
gulated by the situation of the creditors; 
and where the creditors are dispersed 
over a large space, one hundred and fif- 
ty days is a reasonable time, after notice 
of the deed. Ih. 

22. An assignment, made under the 
resolution of the directory of a banking 
corporation, for a purpose within the 
scope of their poAvers, is jnima facie va- 
lid. Gibson v. Goldfhmaite, 7 A. R. 282. 

23. An assignment by a rail-road cor- 
poration actually insolvent, of all its es- 
tate, for the security of certain bonds, to 
be afterward issued for the purpose of 
raising money, to put a portion of the 
road in use, is not, void ^^er se, although 
it provides, that the estate shall be re- 
tained by the corporation, until the ma- 
turity of the bonds, and then sold in case 
"of default, for the benefit of the holders 
of the bonds, and afterward, of its credi- 
tors generally, who shall prove their de- 
mands, &c. ; but the deed is inoperative 
as a security, unless the bonds are ac- 
tually issued to honafide creditors, before 
the lien of other creditors attaches on 
the property conveyed, either by judg- 
ment or execution, as the estate is real, 
or personal. Allen v. Montgomery Rail- 
road Co., 11 A. R. 438. 

24. The circumstance, that the corpo- 
ration is actually insolvent, at the time 
of making such a deed, and that all the 
estate conveyed by it, is afterward sold in 
a lump, and does not produce a sum suf- 
ficient to pay the bond-holders, is not 
sufficient proof, of fraud, to avoid the 
deed ; nor does the fact, that the deed 
reserves the property from sale, prevent 
an execution creditor from selling the 
reversionary interest of the corporation 
at any time previous to the law day of 
the deed. Ih. 

25. A deed conveying property in 



trust absolutely, for the benefit of speci- 
fied creditors, if hona jide, is valid as a 
conveyance, in consequence of the pre- 
sumed assent of the creditors ; and is not 
a mere power, subject to be defeated by 
the levy of an execution at the instance 
of one of the creditors named in it. Kin- 
nard v. Thompson, 12 A. R. 487. 

26. A deed, reciting that the grantor 
is unable to pay all his debts, and con- 
veying- certain slaves to a trustee to pay 
a preferred creditor, at the expiration of 
two months from the date of the deed, 
and also providing that the slave shall 
remain with the trustee, is not void per 
se, because it also provides, that the re- 
sidue, after paying the preferred debt, 
shall be paid to the grantor. ' Hindman 
V. Bill, 11 A. R. 689., 

27. Where a corporation assigns dts 
efiects to a trustee, for the benefit of 
creditors, the assignment will be good 
against a judgment creditor, though the 
charter provides, that 'the stockholders 
shall be personally responsible for the 
debts of the corporation. Popex. Bran- 
don, 2 S. 401. 

28. C, being bound on certain bills of 
exchange, for other persons, obtained 
from them as- an indemnity, a bill of ex- 
change for S4,000 ; the bills as indemni- 
ty for which this was given, were paid 
by the acceptor, notwithstanding which, 
C caused it to be protested for non-pay- 
ment : afterward C made an assignment 
of all his eifects to P as trustee, for the 
payment of his debts, in which this bill 
was not included ; after making the as- 
signment, C fraudulently put the bill in 
suit, against an indorser upon it, and by 
the indorser's neglect to make a defense, 
recovered a judgment, which C assigned 
to B & W ; whereupon, P exhibited his 
bill to get the benefit of it, alledging, that 
the bill, on which it was recovered, pass- 
ed to him under the assignment : Held, 
that as C had no title to the bill at the date 
of the deed, none passed to P by the assign- 
ment ; find that he could not assert a ti- 
tle to the fraudulent acquisitions of the 
assignor, after the date of the assign- 
ment, though the inception of the fraud 
was anterior to it ; and that although the 
assignor would be estopped as between 
himself and P, from setting up a title, 
by alledging his own fraud, yet as be- 
tween P and the assignees of the judg- 
ment, who did not deduce their title 
tlirough the fraudulent act of the assign- 



ASSIGNMENT. 



79 



or, a court of chancery would not inter- 
fere. Casey y: Pratt, 8 A. 'R.2QS. (Up- 
on a rehearing, the remainder of the 
proceeds of the judgment, after discharg- 
ing the claim of B & W, was ordered to 

■ be paid to P, as tlie assignee of C.) 

29. An assignment by an insolvent 
debtor, for the benefit of creditors, which, 
after empowering the trustee, to sell the 
property, on the best terms practicable, 
either at private sale or public auction, 
for cash, or on credit, as shall, in his 
opinion, most comport, with the interest 
of all parties concerned, requires him, if 

. the property is not sold within sis months, 
to sell it at public auction, &c., is not 
" rendered fraudulent on its face, by apro- 
# vision, that the debtor shall retain pos- 
session of certain property conveyed, un- 
til a favorable opportunity for the sale 

■ of it, shall offer, such possession, being 
expressly limited to the time for the sale 
at public auction. Abercronibie v. Brad- 
ford, 16 A. E. 560. 

30. Nor does the provision, that the 
trustee may sell for cash, or on credit, 
affect the validity of the deed. lb. 

(c) WJien Void. 

31. Though a debtor, in failing,, cir- 
cumstances, may by an assignment of 
his estate, prefer one- creditor to another, 
yet if the assignment be made without 
the consent of his creditors, and reserves 
to the debtor, a portion of his property, 
for his support, and be otherwise arbi- 
trary and unjust to the creditors gene- 
rally, it will be declared fraudulent ; and 
the favored creditor, will not be allowed 
to avail himself of any benefit under it. 
Richards v. Hazzard,! S. & P. 139. 

32. An assignment made by an insol- 
vent debtor, of his estate, appropriating 
to himself, without the approbation of his 
creditors, a certain amount for his own 
support, is fraudulent and void. lb. 

33. A deed of assignment made by a 
debtor, conveying his property to a trus- 
tee, with power to collect, and sell, and 
apply the proceeds to the payment of 
certain creditors, first, those named in 
schedule B, according to the order in 
which they were set down ; second, those 
enumerated in schedule C, jyari passu, 
and without priority or partiality ; and 

■ lastly, all other persons having legal de- 
mands against the debtor; and giv- 
ing to the trustee the power and discre- 



tion of departing from such order and 
enumeration, if by such departure, any 
compromise or settlement covild be ef- 
fected, ' advantageous to the debtor, was 
declared fraudulent and void upon its 
face. Gazzani v. Poyntz, 4 A. R. 374. 

34. A deed of assignment can be sus- 
tained, only Avhere the property conveyed 
by it, is devoted bona fide to the pay- 
ment of the creditors, without stipulating 
for any l)enefit to the" debtor, and where 
the equitable interests of the creditors 

.-are fixed and determined by the deed it- 
self, lb. 

35. A provision in an assignment by 
an insolvent debtor, conveying all his 
property to trustees, giving preferences 
to certain creditors, and directing, that 
after the payment of certain preferred 
creditors, "tlie^ surplus, if any, be ap- 
propriated to the other creditors ratably, 
who shall within four months execute a 
release of their- claims ; and if there be 
any surplus, after fulfilling all the trusts 
aforesaid, the same shall be paid over to 
the said" assignor, is such a stipulation, 
for the benefit of the debtor, as renders 
the deed fraudulent and void. Grim- 
shaw V. Walker, 12 A. R. 101. 

36. When a deed of trust is made by 
an insolvent person, to trustees, for the 
payment of his creditors, and on the 
same day, a power is executed by the 
trustees to him, giving him full power 
over the trust effects, if these deeds can 
be considered as one act, . it would be 
conclusive evidence &f fraud, as it would, 
in effect, be the same thing, as if the 
power had been reserved in the deed it- 
self. Smith V. Leavitis, 10 A. R. 93. 

37. When the trustees permit the as- 
signor, as their agent, to use and control 
the assigned effects, in a manner wholly 
inconsistent with the purposes of the 
triist, and as his own, it is evidence that 
the assignment was not made in good 
faith. lb. 

38. A deed of assignment, conveying 
in general terms, all the assignor's real 
and personal property, and choses in ac- 
tion, to pay liis debts, without any de- 
scription, or schedule of the property, 
except of three slaves; and without spe- 
cifying the debts, or creditors to be paid; 
and containing no provision, that notice 
shall be given to the creditors, or that 
they shall become parties to the deed, is 
2yrima facie fraudulent. Cummings v. 
McCidiourjlt, 5 A. R. 324. 



80 



ASSIGNMENT. 



(d) Distinction between Assignments and 
Deeds of Trust, 

39. An assignment for the benefit of 
creditors, is where a debtor, in failing or 
insolvent circumstances, makes a con- 
veyance to a trustee, of all his property, 
to pay preferred creditors, or creditors 
in equal or unequal proportions. Elmes 
V. Sutherland, 7 A. R. 262. GrimsJiaiv 
V. Walker, 12 A. R. 103. Pope v. Wil- 
son, 7 A. R. 690. 

40. A deed of trusty is vrhere a debtor 
not insolvent, or in failing circumstances, 
conveys property to a trustee for the ben- 
efit of certain of his creditors, and stipu- 
lates for delay, or some other benefit. 
Smith V. Leavitts, 10 A. R. 93. Elmes 
V. Sutherland, 7 A. R. 262. Pope v. 
Wilso?i, 7 A. R. 690. 

41. Such a conveyance is a mere secu- 
rity for the debts, and is not materially 
different from a mortgage. Elmes v. 
Sutherland, 7 A. R. 262. Hindman v. 
Dill 11 A. R. 689. Allen v. Montgomery 
Bail-road Co., 11 A. R. 453. Dubose v. 
Dubose, 7 A. R. 235. Pope v. Wilson, 7 
A. R. 690. Graham v. Lockhart, 8 A. 
R. 9. . 

42. In the case of an assignment by an" 
insolvent debtor, the assent of the pre- 
ferred creditors will be presumed. Rob- 
inson V, Pajxlge, 2 S. 86. Gazzam v. 
Pojjntz, 4 A. R. 374. Kinnard v. Thomp- 
son, 12 A, R. 487. Elmes v. Sutherland, 
7 A. R. 268. Smith v. Leavitts, 10 A.R. 93. 

43. And the assent of creditors, to an 
assignment, which appropriates the prop- 
erty conveyed, absolutely, and uncondi- 
tionally, to the payment of their debts, 
will also be presumed. Abercrombie v. 
Bradford, 16 A. R. 560. 

44. And this is not an open question 
in this state. Smith v. Leavitts, 10 A. 
K. 93. 

45. But such assent is necessary to the 
validity of a deed of trust, or assign- 
ment, made by a debtor not insolvent, 
when the creditors are placed in a worse 
•condition ; as by having the collection of 
their debts postponed beyond their ma- 
turity, or when some act is required to 
be done by them. Smith v. Leavitts, 
10 A. R. 93. Elmes v. Sutherland, 7 A. 
R. 262. Graham v. Lockhart, 8 A. R. 9. 
Eodge v. Wgaft, 10 A. R. 271. Kemp v. 
Porter, 7 A. R. 138. Manldin v. Armis- 
tead, 14 A. R. 702. Lockhart v. Wyatt, 
10 A. R. 231. 



II. Assignment of Choses in Action. 
(a) What may be assigned, and Who may 



46. A mere right of action in a chattel ' 
cannot be sold, so as to vest in the pur- 
chaser the right to sue for its recovery; 
but as the right to personal property • 
draws to it the possession, if the posses- 
sion of another is derived from, and held 
in subordination to that of the owner, as 
m the case of a bailment, he may sell ; 
and his vendee will have the right to sue 
for its recovei'y, if the possession is im- 
properly withheld. Foster v. Goree, 5 A. 
R. 424 

47. A chose in action, is any right to 
damages, whether arising from the com- 
mission of a tort, the omission of a duty, 
or the breach of a contract. Magee v. 
Toland, 8 P. 36. 

48. A chose in action is not assigna- 
ble at common law ; but a transfer of a 
chose in action, for a valuable conside- 
ration, vests such an interest in the 
transferree, as a court of equity will en- 
force, and a court of law protect, if he 
sue in the name of the transferrer. Good- 
wyn V. Llo)/d, 8 P. 237. Lamkin v. Phil- 
lips, 9 P. 98. 

49. Debts due to a firm, may be as- 
signed to either of the partners, who may 
sue in the name of the firm for their re- 
covery; or his administrator after his 
death, may use the name of the firm to 
recover them. Lamkin v. Phillip>s, 9 P. 
98. 

50. Certificates of stock, issued by a 
private association, under articles ren- 
dering them assignable, may be assigned. 
Spence v. Whitaker, 3 P. 297. 

51. The allotments of lands, made to 
the French emigrants, under the act of 
congress passed the 30th March, 1817, for 
the encouragement of the cultivation of 
the vine and olive, ma^^ be assigned by 
the grantees, as well before as after the 
performance of the conditions of cultiva- 
tion required by the government. Jink- 
ins v. Noel, 3 S. 60. 

52. A witness' certificate is transfera- 
ble by delivery, and the holder can sue 
in the name of the witness, for his own 
use. Findley v. Wyser, 1 S. 23. 

53. A corporation may assign its ef- 
fects to a trustee, for the benefit of cred- 
itors. Pope V. Brandon, 2 S. 401. 

54. A replevin bond taken in an at- 



ASSIGNMENT. 



81 



tachment cause, payable to the sheriff, 
is assignable by the sheriff to the plain- 
tiff, who may sue on it in his own name. 
Adkius Y. Allen, 1 S. 130. Sartin v. 
Weir, 3 S. & P. 421. 

55. A debt to fall due in future, for 
services to be afterward rendered, may 
be transferred by assignment before the 
services are rendered ; and the transfer, 
if bona Jide, will defeat an attachment 
subsequently sued out against the trans- 
ferrer. Payne v. Tlie Mayor and Alder- 
men of Mobile, 4 A. K. 333. 

56. An assignment by the widow of a 
deceased person, of her interest in the 
estate, to the other distributees, is suffi- 
cient to pass it in a court of equity, to 
the assignees. Poioell v. Poivell, 10 A. 
K. 900. 

57. The interest of a distribu.tee in an 
unsettled estate, is the subject of assign- 
ment ; if one is made, it divests the in- 
terest of the distributee, so that no pro- 
ceeding can be had by his representa- 
tives against the administrator ; his as- 
signee is thereby invested with all his 
rights, and they may be asserted by him 
in his own name. Graham v. Abercrom- 
bie,8 A. E. 552. 

(b) Bights and Disabilities of Assignee. 

■ 58. Courts of laAv have, for a long pe- 
riod, taken notice of the assignments of 
choses in action, and have afforded them 
every protection, not inconsistent with 
the principles and proceedings of tribu- 
nals, acting according to the course of 
the common law: They endeavor, in 
these respects, to apply, as far as may 
properly be done, the rules and doctrines 
recognized in courts of equity. Lamkin 
V. Phillips, 9 P. 98. 

59. Where a judgment is assigned, 
for a valuable consideration, either by 
parol, or in writing, equity Avill sustain 
the assignment. Brahan v. Eagland, 
3 S. 247. 

GO. A transfer of a cho'se in action, for 
a valuable consideration, vests such an 
interest in the transferree, as a court of 
equity will enforce, and a court of law 
protect, if he sue in the name of the 
transferrer. Goodwyn v. Lloyd, 8 P. 
237. Lamkin v. Phillips, 9 P. 98. 

61. But where the possession of the 
property assigned, is held by another ad- 
versely, and under a color 'of title, and 
the owner would be driven to an action 
1—11 



to recover his possession, it is a mere 
chose in action, and the transferree can- 
not maintain an action in his own name. 
lb. 

62. The authority of an attorney 
ceases with his collection of the money 
demanded by the plaintiff's judgment, 
and he is not authorized to sell, or trans- 
fer any interest in the judgment, or in 
the note or bond on which the judgment 
is founded ; his assignment therefore, of 
the judgment to a third person, conveys 
no interest. Boren v. M' Gehee, 6 P. 432. 

63. The assignee of a certificate of the 
payment for lands purchased of the Uni- 
ted States, cannot sustain an action of 
trespass to try title to the land, in his 
own name, the assignment not being un- 
der seal. ^ Thrash X. Johnson, 6 P. 458. 
Ajisley V. Nolan, 6 P. 379. 

64. Certificates of Stock, issued by a 
private association, under articles ren- 
dering them assignable, and prescribing 
no lien upon them for debts due the 
company, are not subject in the hands 
of a bona fide assignee, to a set-off 
against the original stockholder. Spence 
V. Whitaker, 3 P. 297. 

65. Where a subscribing witness, who, 
after attesting the execution of a note, 
becomes the assignee thereof, and brings 
an action against the maker, who de- 
nies its execution, it is not admissible to 
prove the handwriting of the subscri- 
bing witness, or the signature of the ma- 
ker : Nor is evidence admissible to show 
the acknowledgment of the maker, that 
he executed the note. Bennet v. Bobin- 
50«, 3 S. & P. 227. 

66. The assignment of a judgment, 
passes only an equitable interest, and 
the assignee cannot maintain an action 
thereon in his own name. Black v. ^»e?'- 
e«,5S. &P. 60. 

67. The assignmentof ajudgment isa 
transfer of the money to be collected on 
it ; and when collected by the attorney 
of the original plaintiff, who has had no- 
.tice of the assignment, is held for the 
use of the assignee. Gayle v. Benson, 3 
A. K. 234. 

68. The action of assumpsit, may be 
maintained hj the assignee, for the re- 
covery of the money, against the attor- 
ney, after notice of the assignment, and 
demand of the proceeds of the judgment. 
lb. 

69. It seems, that one who pays a 
judgment, without the request of the do- 



82 



ASSIGNMENT. 



fendant, and takes a transfer of it, may 
sue on the judgment in the name of the 
person to whom it was originally due : 
and that the payment and transfer will 
not be considered such a satisfaction as 
to prevent a recovery. Weakly v. Bra- 
lian, 2 S. 500. 

70. The assignee of a judgment, may 
sue an execution thereon in the name of 
the plaintiif, and independently of his 
control. Hadeii v. Walker, 5 A. R. 86. 

71. And if, after notice of the assign- 
ment of a judgment, the defendant pays 
it to the plaintiff, equity will not protect 
him from an execution for the benefit of 
the assignee. Holland v. Dale, Minor, 
265. 

72. Where a corporation assigns its ef- 
fects to a trustee, for the benefit^ of credi- 
tors, the assignment will be good against 
a judgment creditor, though the charter 
provid.es, that the stockholders shall be 
personally responsible for the debts of 
the corporation. Pope v. Brandon, 2 S. 
401. 

73. A judgment rendered during the 
term of the court, does not relate back to 
the first day of the term, so as to defeat 
a bona fide purchaser, or assignee. lb. 

74. Cotton receipts are placed by our 
statutes, on the same footing with inland 
bills of exchange, as to negotiability ; and 
such a receipt, assigned by the payee, 
before it is due, is not subject in the 
hands of an innocent indorsee without 
notice, to a set-off existing against the 
payee. Winstony. Moseley, 2 S. 137. 

75. The general assignee of a debtor, 
no consideration passing at the time of 
the assignment, or rights given up, is not 
a bona fide purchaser without notice ; but 
the property is held by him in the same 
condition as by the debtor. Frow v. 
Doionman, 11 A. R. 880. Walker v. Mil- 
ler, 11 A. R. 1067. 

76. So a negotiable instrument receiv- 
ed from the payee, before maturity, as 
an indemnity against future loss on a 
suretyship then existing on the part of 
the holder, for the payee, is not a trans- 
fer in the usual course of trade, so as to 
prevent the maker from availing himself 
of a latent equity between him and the 
payee. The Bank of Mobile v. Hall, 6 A. 
R. 639. 

77. When the holder of negotiable pa- 
per, to which there exists an equitable 
defense, has given no consideration for 
its transfer, but holds merely as a collat- 



eral security to a debt due from the payee, 
it is subject to the same defenses, as if it 
was held and owned by the payee. Cut- 
Imn v. The Branch Bank at Mobile, 4 A. 
R. 22. Andrews v. McCoy, 8 A. R. 
920. The Bank of Mobile v. Hall, 6 A. 
R. 639. Walker \. Miller, 11 A. R. 
1067. SmithY. Pettus, 1 S. & P. 107. 

78. To enable the holder of such paper, 
to rely on the rules of the law merchant, 
as to the transfer of negotiable securi- 
ties, the legal title to the paper, must be 
vested in him by indorsement. Andreios 
v. McCoy, 8 A. R. 929. Hull v. The P. 
& M. Bank; 6 A. R. 761. S. P. Tuscum- 
bia & Decatur Kail-road Co. v. Rhodes, 
8 A. R. 206. 

79. And the transfer of negotiable 
notes, by a separate deed of assignment, 
without delivery of the notes themselves, 
is not an indorsement, or such a trans- 
fer, as will vest the legal title in the 
transferree, according to the law mer- 
chant; but is the assignment merely of 
a chose in action. Hull v. The P. & M. 
Bank, 6 A. R. 761. 

80. In order to pass the legah interest 
in a promissory note, to a third person, 
and to invest him with a right of action 
in his own name., the transfer must be 
made by indorsement ; and the indorse- 
ment of a receipt given by an attorney 
at law, for a note placed in his hands for 
collection, will not pass to the assignee, 
the legal title to the note, although the 
attorney, by an indorsement on the re- 
ceipt, promises to pay him the proceeds, 
when collected; and such an assignment, 
does not impose upon the assignee, the 
necessity of pursuing the steps necessa- 
ry to charge an indorser. Gookin v. 
Richardson, 11 A. R. 889. 

81. The transfer of a note, by the as- 
signment of the paj^ee, jointly Avith one 
who is a stranger to the note, does not 
convey the legal title, and therefore, is 
not within the statute of 1828, defining 
the liability of indorsers. Hcdl \. GMl- 
ton, 3 A. R. 633. 

82. The equity which attaches upon 
the assignment of a chose in action, is 
one which inheres in, or grows out of 
the suljject matter of the contract; as, 
when there was a warranty against in- 
cumbrances, upon a sale of lands, an in- 
choate, or latent equity, would attach to 
the notes executed for the purchase mo- 
ney, and would be enforced against an 
assignee of the vendor, when the equity 



ASSIGNMENT.— ASSUMPSIT. 



83 



became perfect, by a breach of the war- 
ranty, and the insolvency of the vendor. 
Andrews v. 3IcCoi/, 8 A. R. 920. Smith 
V. Pettus, 1 S. & P. 107. 

83. But a negotiable instrument re- 
ceived before it is due, in payment of a 
pre-existing debt, is received in the 
usual course of trade betv^^een merchants, 
and the holder vrill be protected against a 
latent equity between the original par- 
ties, of vrhich he had no notice. The 
BanJc of Mobile v. Hall, 6 A. R. 639. ' 

84. An assignee of a note, cannot re- 
cover of the assignor, usurious interest, 
which, in a suit by the assignee against 
the makers of the note, ha,d been deduct- 
ed from it, the assignee being a party to 
the contract, by which the usury was 
reserved. Lloyd v. Pace, 12 A. R. 637. 

85. An assignor is not responsible to 
•the assignee, for any improper allowance 
made to the makers of the note, upon 
their plea, in a suit against them by the 
assignee, unless he had notice of the 
defense, and was required to prosecute 
the suit. lb. 

86. An assignment made by one part- 
ner in his name, of a note payable to the 
firm, does not transfer the legal interest, 
so as to authorize the assignee to sue at 
law in his own name ; yet as the author- 
ity of the partner will be presumed, a 
right to the note, and as incident to it, 
all securities for its payment, pass to 
the assignee, who may maintain an ac- 
tion in the name of the payees. P. & 
M. Bank v. Willis, 5 A. R. 771. 

87. Where a partner assigns a note to 
his firm, and they afterward assign it 
over, an action will lie against them on 
the indorsement. Brown v. Torver, Mi- 
nor, 370. 

88. A note of the plaintiff, assigned 
to the defendant, cannot be set off, un- 
less it is proved, that the assignment 
was made before the commencement of 
the action. Gross v. Van Wick, Minor, 7. 

89. The transfer of a chose in action, 
which the original holder could sue for 
at law, will not of itself invest a court of 
equity with the right to entertain juris- 
diction for the demand. McGehee v. 
Dougherty, 10 A. R. 863. 

90. An assignee of notes, given upon 
the purchase of land, who is cognizant 
of all the facts, takes them subject to the 
equity which exists against the vendor. 
Gi-iggs V. Woodrvff, 14 A. R. 9. 

91. The assignee of a bond transfer- 



red after due, takes it subject to all equi- 
table defenses. Teague \ J Russell, 2 S. 
420. 

92. An a,greement in a note given for 
the hire of slaves, to return the slaves 
clothed as usual, is not assigned by the 
indorsement of the note, so' as to enable 
the assignee to sue for a breach of it, in 
his own -name. Winston v. Metccdfe, 7 
A. R. 837. Same case, 6 A. R. 756. 



ASSUMPSIT. 

I. Op the AcTio^r I^'^ General; and 

HEREIN OF WAIVING TORTS. 

II. To RECOVER MONEY PAID. 

III. For MONEY HAD AND RECEIVED. 

IV. For GOODS sold and delivered. 

V. On ACCOUNT STATED. 

VI. Of quantum valebxVNT, and quan- 
tum MERUIT. 

VIL Pleadings and Evidence. 



I. Of the Action in General ; and 

HEREIN OF WAIVING TORTS. 

1. An action for the breach of a con- 
tract under seal, must be brought upon 
the instrument itself, unless the contract 
has been subsequently varied by the par- 
ties. Aikin v. Bloodgood, 12 A. R. 221. 

2. The law implies a promise to pay, 
whenever one person has money in his 
hands belonging to another, which ex 
cequo et bono, he has no right to retain. 
TVilson V. Sergeant, 12 A. R. 778. 

3. A parol executory contract for the 
sale of land, cannot be enforced at law; 
but where the contract is executed by a 
conveyance of the land, assumpsit will 
lie for the purchase money. Butle7- v. 
Lee, 11 A. K 885. 

4. The action cannot be maintained, 
if the conveyance is not made until af- 
ter the action is commenced. Ih. 

5. Assumpsit lies against a stakehold- 
er, to recover.money deposited with him, 
as a wager upon the event of a horse- 
race, or other description of gaming, af- 
ter notice to the stakeholder not to pay it 
over to the winner ; and after such notice, 
if the stakeholder pays over the money 
to the supposed winner, no special de- 



84 



ASSUMPSIT. 



mand is necessary, hey v. PMfer, 11 
A. R. 535. Shackleford v. Ward, 3 A. 
R. 37. Wood V. Du7ican, 9 P. 227. 

6. An action of assumpsit will not lie, 
to recover damages, for the use by the 
defendant, of the wall of the plaintiif 's 
house in the construction of his house, in 

'the absence of any contract to pay for 
such use. Bisqimy v. Jeunelot, 10 A. R. 
245. 

7. The plaintiff sold to the defendant 
a mare, which the latter was to pay for 
by the labor of his two sons, for four 
months, at sixteen dollars per month, 
agreeing, that if one of the boys, (whose 
health was delicate,) lost any time by 
sickness, it should be made up:' The boys 
entered the plaintiff's service, and six or 
seven days afterward, the healthier of 
the two was slightly sick at night, and 
the nest morning he directed them to go 
home, saying they need not return at 
the price above mentioned, Irat one might 
return and work eight months ; neither 
of them ever labored again for the plain- 
tiff, nor did he require them to do so : 
Held, that the defendant was not in de- 
fault, and that the plaintiff could not re- 
cover the price of the mare in an action 
of assumpsit. DtickicoiiJi v. Johnson, 8 
A. R.309. 

8. An appropriation and payment by 
the board of directors of the Branch 
Bank at Mobile, to one of their number, 
for extra services, is not warranted by 
law ; and the amount thus paid, may be 
recovered from him by the Bank in an 
;action of assumpsit. Braiicli Bank at 
Mobile V. Scott, 7 A. R. 107. Sa?ne v. 
Collins, 7 A. R. 95, ' 

9. An action of assumpsit is not the 
proper remedy, where a purchaser has 
accepted a deed for lands, and he has 
been defrauded by an omission to inform 
him of an outstanding incumbrance, cre- 
ated by the vendor. Morgan v. Patrick, 
7 A. R. 185. 

10. Indebitatus ass^impsit will lie up- 
on an executed parol contract; and al- 
though it is usual to count upon the spe- 
cial contract, and if it be conditional, to 
aver performance of the condition, the 
common count is sufficient. Dukes v. 
Leoivie, 13 A. R. 457. 

11. Whore the terms of a special un- 
sealed agreement have been performed 
by the plaintiff, so that only a duty to 
pay the money remains, indebitatus as- 
;sum])slt will lie : But where the contract 



is still open, or is to be performed in fu- 
ture, the count must be framed on the 
contract. Hunter v. Waldron, 7 A. R. 
754. 

12. P represented to G, that a tract 
of land he was about to sell him in the 
state of Georgia, contained 240 acres, 
and thereupon conveyed it to him by 
deed, reciting, that the tract contained 
240 acres, more or less : The vendor af- 
terward agreed, that if the plaintiff would 
go and take possession, and the land 
should fall short of 240 acres, he would , 
make good any deficiency: Held, that 
an action of assumpsit would lie for the 
breach of this contract. Gordon v. PMl- 
lips, 13 A. R. 665. 

13. A recovery may be had upon the 
common counts in assumpsit, of a bank, 
for the value of notes of the bank, prov- 
ed to have been destroyed, without an , 
affidavit of the loss, pre^aous to the in- 
stitution of the suit. The Bank of Mo- ' 
bile V. Williams, 13 A. R. 544. 

14. A person who has paid a note, -■ 
without the request of the maker, which 
he was not bound either mediately or ■ 
immediately to pay, cannot recover the 
amount of the maker, in an action of in- 
debitatus assiimjysit, in his own name. 
Stephens v. Broclnax, 5 A. R, 259. Weak- 
ley V. Brahcm, 2 S. 500. 

15. And it will not be inferred, in the 
absence of proof, that he who pays a 
debt of another, acts as the agent of the 
debtor, and advances his own money for 
him. Stephens \. Brodnax, 5 A. R. 259. 

16. Although the charter of a rail- 
road company authorizes a sale of the 
stock of a subscriber, for the non-pay- 
ment of calls made thereon, yet an ac- 
tion of assumpsit will lie upon his sub- 
scription, which is a promise to pay. 
Carlisle v. Cahaivba <£■ Marion liail- 
road Co., 4 A. R. 70. Beene v. Cahaivba 
& Marion Pail-road Co., 3 A. R. 660. 
Selma & Tennessee Pail-road Co. v. 
Tipton, 5 A. R. 787. 

17. So, a corporation may declare on 
a contract to take stock agreeably to the 
provisions of its charter ; and to such a 
declaration, the common counts may be 
added. Beene v. Cahaicba & Marion 
Pail-road Co., 3 A. R. 660. Gayle v. 
Cahaivba & Marion Pail-road Co., 8 A, 
R. 587. 

18. The action of assumpsit may be 
maintained by the assignee of a judg^ 
ment, against an attorney collecting the 



ASSUMPSIT. 



85- 



same, after notice of the assignment, 
and demand of the proceeds of the judg- 
ment. Gaijle V. Benson, 3 A. E. 234. 

19. A wife filed a bill for divorce and 
alimony, on the ground among others, 
that her husband was a lunatic, and an 
order was made, allowing a thousand 
dollars per annum, for the support and 
maintenance of herself and children ; the 
husband being afterward restored 'to 
sanity, and the bill dismissed, it was 
held, that an action of assumpsit would 
lie against him to recover money due for 
the tuition of his children, on a contract 
made by his wife, pending the bill in 
chancery. Harris v. Davis, 1 A. K. 259. 

20. The action of assumpsit is sus- 
tainable where there is an express parol 
contract, or where the circumstances of 
the transaction are such, that the law 
will imply a contract: But although this 
action, when founded on an implied lia- 
bility, is greatly favored, and has been 
likened to a bill in equity, yet it cannot 
be maintained, unless the plaintiff' shows 
a legal right. Westmoreland v. Davis, 1 
A. K. 299. 

21 . Nor will a promise by a defendant," 
to pay money, be implied, unless the 
plaintiiT shows a legal right. lb. 

22. Where the guardian of a lunatic 
purchases merchandise (which is charg- 
ed to him) for the use of the lunatic and 
his family, an action cannot be main- 
tained against the lunatic, upon an im- 
plied promise to pay the amount, al- 
though he has recovered his reason, and 
his property has been restored to him, 
and the guardian has retained no part of 
it to indemnify himself for liabilities on 
account of his ward : At the time the 
purchases were made, the lunatic was 
not in a situation to make himself liable 
npon an implied promise, and subse- 
quent events cannot create it. Ih. 

23. But as the debt was contracted on 
account of the lunatic and his family, he 
is under a moral obligation to pay it, and 
a promise after a return of his reason, 
would be binding: And, he would be 
liable, upon an implied undertaking, to 
reimburse the guardian, should he pay 
the debt. 76. 

24. To authorize a party to recover 
upon a count in a declaration, alledging 
a special contract, it is necessary to show 
a contract substantially as alledged. 
Jlitchcock V. Lukens, 8 P. 333. 

25. But it is competent; for a plaintiff, 



where no special contract is proved, if he 
have a good cause of action, to recover, 
either in a general indebitatus assumpsit, 
quantum meruit, or quantum valebant, as 
the proof may warrant. lb. 

26. Where one man has money in his 
hands, which ex cequo et bono belongs to 
another, if there be no contract modify- 
ing or controlling the general liability 
to pay, the person entitled to the money 
may recover it in an action for money 
had and received, to his use. lb. 

27. Nor is it necessary that there 
should have been any agreement be- 
tween the parties, to enable ■ the plain- 
tiff" to maintain this action ; the law cre- 
ates the privity and the promise. lb. 

28. If, therefore, money be given ta 
one person to deliver to a third, the 
right to the money is transferred to the 
latter, and he may bring this action. lb. 

29. The statute of frauds interposes no 
barrier to a recovery in such a case : the 
undertaking is, not to answer for the 
debt, default, or miscarriage of another, 
but to pay the money of another alrea- 
dy received, or when received, to a third 
person. lb. 

30. Where the execution of a trust, 
creates a mere money demand upon the 
trustee, for a sum certain, or which may 
be reduced io a certainty by a reference 
to something else, there is no principle 
of law whicli would render necessary, a 
resort to equity. lb. 

31. If a contract under seal, be so ex- 
ecuted as not to authorize a party injur- 
ed by its breach, to sue upon it, he may 
luring assumpsit, and make the contract 
inducement by his declaration, or give it 
in evidence, without noticing it in the 
pleadings. lb. 

32. An agreement signed by two, con- 
taining mutual stipulations, and con- 
cluding, "Given under our hands and 
seals," but having a seal affixed only to 
the name of the first signer, is a sealed 
instrument; and assumpsit cannot be 
maintained upon it. Hatch v. Crawford, 
2 P. 54. 

33. Assumpsit is the proper action, to 
recover back money paid upon a judg- 
ment, which is afterward reversed. Dun- 
can V. Ware, 5 S. & P. 119. Dupw/ v. 
Roebuck, 7 A. R. 484. Meredith v. Rich- 
ardson, 10 A. R. 828. Steioart \. Conner, 
9 A. R. 803. Judson v. Eslava, Mi- 
nor, 71. 

34. But a garnishee in attachment, 



m^< 



86 



ASSUMPSIT. 



cannot recover in assumpsit the amount 
he has paid, where the judgment against 
the debtor in attachment, has been re- 
versed- for inere irregularity, if the 
amount paid, was justly due by him to 
the defendant, and by the latter to the 
plaintiff in the attachment. Duncan v. 
Ware, 5 S. & P. 119. 

35. In an action to recover back mo- 
ney paid on a judgment, v^hich has been 
reversed since the payment, a defend- 
ant may insist upon any matter in de- 
fense, -which shows that in equity and 
good conscience he ought to retain the 
money. Dupuy v. Roebuclc, 7 A. R. 484. 
Mereclitli v. Pdeliardson, 10 A. E. 828. 
Stewart v. Conner, 9 A. R. 803. Dun- 
can V. Ware, 5 S. & P. 119. 

36. But this equitable right to retain, 
must grow out of, or be connected with 
the case in which the judgment is vaca- 
ted ; if the defendant has another cause 
of action, in which he would be entitled 
to recover as much as he retains, he 
must become the actor in a suit, and 
have his damages ascertained by a judg- 
ment. Dupuy V. Eoehuck, 7 A. R. 484. 
MereditJi v. Richardson, 10 A. R. 828. 

37. An action of assumpsit for rent, 
will not lie at common law, except on 
an express promise made at the time of 
the demise. Bell v. Ellis, IS- & P. 294. 
(Overruled in Davidson v. Ernest, 7 A. 
R. 817.) 

38. The act of 1812, in relation to the 
action of assumpsit, for rent, applies on- 
ly to the case of a demise, and where 
there exists an agreement creating the 
relation of landlord and tenant. Tb. 
(Overruled in Davidson v. Ernest, 7 A. 
R. 817.) 

39. Where a lessee has enjoyed pos- 
session of land, for one year, under a 
parol lease for five years, the lessor may 
maintain assumpsit against him, for use 
and occupation for the year. Haijs v. 
Goree, 4 S. & P. 170. 

40. And where A entered into a verbal 
contract with B, for the purchase of land, 
and under it, took possession and culti- 
vated the land for two years, and then 
abandoned possession, and gave notice 
of it to B, who at the same time offered 
to make him a deed, it was held,. that B, 
could maintain assumpsit against him 
for use and occupation for the two years. 
Davidson v. Ernest, 7 A. R. 817. 

41. In order to maintain an action for 
use and occupation, the relation of land- 



lord and tenant must exist, or there 
must be an occupancy of the premises 
by permission of the plaintiff: When, 
therefore, a person is in possession of 
land, under a contract of purchase'from 
one who has no title, this action cannot 
be maintained against him by the true 
owner. Bell x: Ellis, 1 S. & P. 294. 
Davidson v. Ernest, 7 A. R. 821. 

42. Assumpsit, for vise and occupa- 
tion, will lie against a person who takes 
possession of vacant land, admitting that 
he has no title, and expressing a willing:? 
ness to pay rent -to the rightful owner ; 
but possession by a naked trespasser, is 
not of itself, sufficient to sustain the ac- 
tion. Smith V. Houston, 16 A. R. 
111. 

43. The action however, will lie 
against a naked trespasser, in favor of a 
lessee, who elects to waive the trespass, 
and permits the trespasser to retain 
possession, until the end of his term. 
Catterlin Y.Sjnnks, 16 A. R. 467. 

44. In assumpsit for use and occupa- 
tion, the plaintiff cannot recover rent, 
accrued before he obtained title. SinitJi 
V. Houston, 16 A. R. 111. 

45. Assumpsit lies to recover, back 
money paid on a parol purchase of land, 
the contract beiiig void by the statute of 
frauds. Allen v. Booker, 2 S. 21. Mer- 
edith V. Naish, 3 S. 207. 

46. Assumpsit is not the proper rem- 
edy to enforce the liability of one' who 
assigns a specialty by indorsement un- 
der seal ; covenant should be brought. 
Sommerville v. Stephenson, 3 S. 271. 

47. Where an overseer employed at a 
stipulated sum for a year, is too sick to 
attend to his business, during a i^art of 
the year, and is not dismissed by his 
employer, but recognized by him as his 
overseer, to the end of the year, he may 
recover p)^'o vcda compensation: If the 
employer has been injured by the over- 
seer's imperfect performance of his con- 
tract, he may recoupe the damages, in 
the overseer's action. Hunter v. Wal- 
dron, 7 A. R. 753. Jones v. Detjer, 16 A. 
R. 221. 

48. But if the overseer dies before the 
end of the year, his personal representa- 
tive cannot recover a ^^''^o '''(da compen- 
sation, for the time he served. Givhan 
V. Dailey, 4 A. R. 336. ■ (Changed by 
statute. Session Acts 1845, p. 50.) 

49. Where a note is assigned in pay- 
ment of a debt, if the name of the maker 



ASSUMPSIT. 



87 



or indorse!' Is forged, the assignee may 
maintain an action 'of assumpsit on the 
original consideration. Nance v. Pojpe, 
1 S. 220. Pope V. Nance, 1 S. 354. 

50. And a recovery may be liad in 
such a case, on tlae common counts, if 
the necessary proof is made; and tliis, 
though tlie assigned note was not re- 
turned, if it be shown, tliat no injury has 
been sustained by tlie failure to return. 
lb. 

51. A public officer who has given a 
receipt for money by mistake, when in 
fact he had not received it, may recover 
the amount from the holder of the re- 
ceipt, in an action for money had and re- 
ceived. Smith V. Seaton, Minor, 75. 
(Crenshaw, J., dissenting.) 

52. B executed several deeds of trust 
to II, to indemnify S, and others, his 
sureties in certain writ of error bonds ; 
afterward it was agreed between S, B, li, 
and another of the, sureties, thatB should 
give to H, the control of his groAving 
crop of cotton, to be shipped to Mobile, 
sold, and the proceeds applied according 
to the trust expressed in the deeds : The 
cotton, amounting to fifty-one bales, was 
accordingly marked with the initials of 
'H's name, byB and one of his sureties, 
and shipped by them to D, S & Co., who 
received and sold it, and held the pro- 
ceeds, amounting to $1,900. To reim- 
burse S $1,030, which the property sold 
under the deeds of trust failed to pay, 
H drew on D, S & Co. in favor of S, for 
the proceeds of the fifty-one bales, which 
in the bill it was recited he had shipped 
them as trustee, &c. ; on this draft the 
drawees oifered to pay about §500, in- 
sisting upon the right to retain the resi- 
due of the mone}'', for the j^ayment of 
demands, which they had against B : S 
refused to receive the $500, caused the 
bill to be protested, and gave notice to 
H: D, S & Co. vrere subsequently gar- 
nisheed by a creditor of B, who recovered 
a judgment against them for the $500 : H 
was advised of the pendency of the gar- 
nishment, but did not inform the garni- 
shees of his claim to the money, except 
as above stated: Held, that the forego- 
ing facts did not show the loan, advance, 
or payment of money by S for H ; nor 
that the latter had received money for 
the use of the former, or that he was in- 
debted to him upon an account stated ; 
that the fair inference was, that H drew 
upon D, S & Co. merely to carry out the 



agreement betAveen B and his sureties, 
and the fact of drawing did not impose 
upon him the legal duty of coercing pay- 
ment of the draAvees ; and, that the facts 
stated, did not show, that B gave H the 
control of his cotton crop, that H shipped 
it, or that D, S & €o, Avere instructed to 
place the proceeds to his credit. Smith 
Y. Houston, 8 A..R. 736. ■ 

53. In the action of assumpsit, dama- 
ges equal to the statute rate of interest, 
are recoverable upon a ' sum of money, 
due for the use and occupation of a 
house. Cooke v. Farinholt, 3 A, R. 
384. 

54. In general, if there be a special pa- 
rol agreement, for the performance of any 
duty, no action will lie until the duty 
has been actually j^erformed ; yet, if the 
contract has been performed, the agree- 
ment to pay money becomes absolute, 
and a recovery may be had upon the ap- 
propriate covmt, for an indebitatus as- 
sumpsit. Gazzam v. Kirby, 8 P. 253. 

55. So, if a party undertake to do 
work by a fixed time, or in a particular 
manner, but fails to perform it within 
the time, or according to the manner 
agreed, he cannot recover upon the spe- 
cial contract ; but if the work he has 
done Avas of value to the defendant, he 
may recover on a quantum meruit. lb. 

56. If the work, however, is so illy ex- 
ecuted, as to be of no benefit to the de- 
fendant, the plaintiff is not entitled to re- 
cover any thing, not even for materials 
furnished. lb. 

57. And if work is of less value to a 
defendant, Avhen completed after a stip- 
ulated time, than it would liaA^e been, 
had the contract been performed with 
punctuality, it is competent for him to 
reduce the recovery by showing that 
fact. lb. 

58. Assumpsit will not lie upon a seal- 
ed agreement to' perform an aAvard. Hor- 
ton \. Ronalds, 2 P. 79. 

59. If a person, Avithout authority, 
sells the goocls of an estate, before admin- 
istration is granted, and receives the mo- 
ney therefor, the administrator of the 
estate, appointed afterward, may bring 
trover against him for the goods, or may 
waive the tort, and bring assumpsit for 
money had and receiA^ed: And it will be 
no defense to the action, that the sale 
was void, and vested no title in the pur- 
chaser. Up)church v. Norsioorthy, 15 A, 
R. 705. 



88 



ASSUMPSIT. 



II. To RECOVER MONEY PAID. 

GO. Money voluntarily paid under ig- 
norance of law, cannot be recovered back 
in an action for money had and received. 
Unwersity v. Keller, 1 A. R. 406. Jo7ks 
V. Watkins, 1 S. 81. Yarhoroughy. Wise, 
5 A. E. 292. 

61. Money paid by mistake, to the ad- 
ministrator of an estate, may be recover- 
ed back, if demanded before paid out' in 
the distribution of the assets of the estate. 
Wilson V. Sergeant, 12 A. R. 778. 

62. But if the money be not demand- 
ed before it has been paid out in the 
course of administration, it cannot be re- 
covered back. Yarhorougli v. Wise, 5 A. 
R. 292. 

63. A person who pays the debt of 
another, without his request, cannot re- 
cover the amount from him, in an action 
for money paid. WeaMey v. Bralian, 2 
S. 500. Stephens v. Brodnax, 5 A. R. 
258. Kenan v. Holloioay, 16 A. R. 53. 

64. But the satisfaction of a judgment, 
by a third person, if sanctioned, and 
adopted by the judgment debtor, will 
support a promise to refund ; the fact of 
ratification, warrants the presumption of 
a previous request. Kenan y. Holloway, 
16 A. R. 53. 

65. An acknowledgment by the judg- 
ment debtor, however, that she owed the 
person who paid the j udgment, the amount 
he had paid voluntarily, and without her 
request, and was in honor, bound to re- 
imburse him and intended to do so, is 
not a promise to refund the money paid. 
lb. 

66. Assumpsit lies to recover back mo- 
ney paid on a parol contract for the pur- 
chase of land, the contract being void by 
the statute of frauds. Allen v. Booker, 
2 S. 21. Meredith v. Kaish, 3 S. 207. 

67. But if the purchaser take and re- 
tain possession of the land, he cannot re- 
cover back the money paid. Cope v. Wil- 
liams, 4 A. R. 362. 

68. Where a party advanced money on 
a quantity of cotton, and agreed to sell 
it at New Orleans, but sold it in Liver- 
pool, it was held, that he might recover 
upon the common counts, the diiferonce 
between the sum advanced, and the price 
the cotton would have fetched in New 
Orleans, when it .should have been sold. 
Hancock v. Tanner, 4 S. & P. 263. 

69. And where the plaintiff advanced 
money to the, defendant, on his contract 



to deliver the plaintiff his cotton crop, 
and he delivered only apart, it was heldj 
that the plaintiff might recover, on the 
common money counts, the amount re- 
ceived by the defendant over and above 
the value of the cotton delivered, without 
having returned, or offered to return, 
the quantity received. ' Arthur v. Saun-' 
ders, 9 P. 626. 

70. S exchanged with D, a sulky for 
a wagon, agreeing that he would put it 
in good repair, and accordingly instruct- 
ed a carriage-maker to make certain re- 
pairs amounting to $19 50, for which he 
paid. D, to whom the carriage-maker 
was indebted, directed other repairs to 
be made, amounting to $13, which were 
necessary to put the sulky in the condi- 
tion in Avhich S stipulated it should be ; 
this sum S refused to pay. Held, that 
in a case of this character, the court looks 
rather to its equity and justice, than the 
strict rules ordinarily applied at law ; 
that S was not liable to the carriage- 
maker for the $13, but D was ; and that 
as the carriage-maker was indebted to D, 
he might retain the $13 from that indebt- 
edness, and that D might recover the 
amount of S. Be Bard v. Smith, 9 A. 
R. 788. 

71. Where the holder of a bill, recover- 
ed judgment against the indorser and 
acceptor, and the indorser paid the judg- 
ment against himself, and took an as- 
signment of that against the acceptor, 
and it was afterward determined in a suit 
in equity between the holder and accept- 
or, that the acceptor was entitled to a 
credit for a certain sum, upon the judg- 
ment against him, it was held, that the 
indorser might recover of the holder, the 
sum allowed the acceptor as a credit, in 
an action for money had and received. 
Knox V. Abercrombie, 11 A. R. 997. 



III. For money had and received. 

72. A landlord may maintain assump- 
sit against a sheriff, for money had and 
received, for rent due from the tenant at 
the time of the levy of an execution. 
Thompson v. Merriman, 15 A. R. 166. 

73. And the sheriff cannot set up in 
1)ar of the action, or by way of set-off, a 
debt due from the landlord to ihe ten- 
ant, lb. \ 

74. An action for money had and rc- 



S 



ASSUMPSIT, 



ceived, cannot be maintained by a land- 
lord, against a purchaser from the ten- 
ant, of tlie crop grown on the rented 
land, but he may maintain attachment,' 
under the statute, if the purchaser had 
knowledge of the lien of the landlord. 
AVhether he might not also maintain an 
action ou the case, gucere. Dulany y. 
'Dickerson, 12 A. R. GOl. * - 

75. Where one is the agent of another 
to collect two promissory notes^ and dis- 
poses of them to his own use, one in the 
purchase of land, and the other' of pei- 
sonal property, the land and other prop- 
erty, may be regarded in his hands as 
money, and assumpsit maintained for it. 
Strickland v. Burns, 14 A. R. 511. 

76. If an attorney receives property in 
payment of a debt due a client, the cli- 
ent may recover the amount of the debt, 
in an action against him for money had 
and received. Cameron v. Clarke, 11 
A. R, 259.' • . ■ 

77! An action for money had and re^ 
ceived, will lie to recover back money 
paid upon a jiidgment which has been 
since reversed, unless the retention of, 
the money by the defendajnt, is consis- 
tent with equity and good conscience. 
Dtijpuy Y. Roebuck, 7 A. R. 484. . .Dun- 
can v. Ware, 5S. & P. 119. Mer-cdithw 
Biclmrdson, 10 A. R. 828^. Judson \. 
Mslava, Minor, 71. ' SteiMrtY-, Comicfr,^ 
9 A. R. 803. 

78. But the equitable right to retain, 
must grow out of, or be connected witli 
the case in which the judgment is vaca- 
ted; if the defendant has another cause 
of action in which he will l>e entitled to 
recover as much as he retains, he must 
become the actor in a suit, and have his 
damages ascertained by a judgment. 
Dupuy V. Roebuck, 7 A. R. 484, 

- 79. In the action for money had and 
received, the defendant may prove any 
■matter of defense, growing out of, or 
connected with the same transaction, 
which shows, that the plaintiff is not en- 
titled ex cequo et bono, to recover. Mer- 
edith V. Richardson, 10 A. R, 828. Duy- 
puy V. Roebuck, 7 A. R. 484. Stewart v. 
Conner, 9 A. R, 803. Duncan v. Ware, 
5 S. & P. 119, . . 

80. Where the money is collected on 
an execution, issued upon a defective 
forthcoming bond, which is subsequently 
quashed, and the bond is good as a com- 
mon law bond, in an action for money 
had and received, to recover back the 
1—12 



money paid on the execution, the defend- 
ant is entitled to retain the amount he 
could recover in an action for a breach, 
of the condition of the bond. Meredith 
V. Richarclsdn,lO A. R. 828. 

'81. So, where a decree of the orphans' 
court, upon the final settlement of an es- 
tate, is reversed after it has been satis- 
fied by the executor, who thereupon 
brings an action for money had and re- 
ceived, to recover back the money, if it 
can be shovfn, that the sum for which 
the decree was rendered, is justly due, 
he cannot recover.. Steivart v. Conner, 9 
A. R. 803, 

82. And where a judgment against a 
debtor in attachment is reversed, after a 
judgment has been rendered in the 
cause, against a garnishee, and paid 
by him, he cannot recover the money 
back in an action for money had and 
received, if it appears, that the amount 
recovered against him was justly due by 
hia|| to the^ defendant, and by the latter 
to the plaintiff in the attachment. Duri" 
can V. IKare, 5 S, & P. 119. 

83. If a plaintiff in execution, receives 
of the purchaser of property at a sale un- 
der it, a bill payable at a future day, he 
cannot object to an action against him 
for money had and received, brought by 
the defendant in execution, after the re- 
versal of the judgment, that he received 
the bill, and not money. Stewart v. 
Conner, 9 A, R. 803. 

84. Where L, being indebted to F, 
transferred to him a note payable to 
himself, without indorsement, and the 
money was collected upon it, by suit in 
the name of L; and F demanded the mo- 
ney of the attorney who collected it, in 
the presence of H, w ho was about to ad- 
minister on the estate of L, (who had 
died,) and informed H, that he should 
claim it ; and 11, administered, received 
the money, and returned it in his inven- 
tory as part of L's estate, it was held, 
that F could maintain an action for mo- 
ney had and received, against H, in his 
individual capacity ; and that the appro- 
priation of the money by H, after notice, 
was a conversion, which rendered a de- 
mand before suit unnecessai'y. Hous- 
ton v.. Frazier, 8 A. R. 81. 

85. If an administrator, after removal 
from the administration, collects money 
recovered by him as administrator, it is 
money had and received to the use of the 
administrator de bonis non-y who may sue 



ASSUMPSIT. 



the former administrator in assumpsit. 
Salter v. Cain, 7 A. R. 478. 

86. Where a draft is delivered to an 
accommodation indorser, as indemnity 
against loss, and the maker afterward 
pays the debt so as to discharge the in- 
dorser from liability, he cannot recover 
the amount of the draft, in an action 
against the indorser, for money had -and 
received, without proof, that he collected 
the money. Owen v. AsMock, 9 P. ,417. 

87. A recovery on a count for money 
had and received, cannot be had on 
proof, that the administratrix of one ex- 
ecuting a receipt for the collection, of 
several claims, paid on dem'and, on© of 
the claims, and refused further to ac- 
count, or to explain the other item^ of 
the receipt. Baskin v. Sample,' & A. 
R. 255. . J,. .. ■■'. .. 

88. To recover on the monj^^co'unt,, if 
is necessary to prove that the uiQney' has 
been received, or at least, some proof 
must be made, from which such aja in- 
ference can be drawn. lb. 

89. Where an intestate, at the time of 
his death, had money deposited in bank, 
and his administrator deposited his let- 
ters of administration, in bank, so as to 
be authorized to check for the money, 
but did not do so, and allowed it to re- 
main to his intestate's credit, it was 
held, that there was not such a reception ^ 
or control of the money, by the adminis- 
trator, as made him lial)le individuall3% 
to an action for money had and received. 
Calvert v. Marlow, 6 A. R. 337. 

90. Where one partner commingles 
the money of the firm, with his.owu, so 
that it cannot be distinguished, he is 
chargeable ijro tanto in an account with 
his copartners, as for a conversion ; but 
if the money come to the hands of the 
administrator of the partner converting 
it, an action against him, for money had 
and received, cannot be supported by the 
surviving partners. lb.' - 

91. An administrator caused an exe- 
cution to be issued on a judgment recov- 
ered by his intestate, and levied on a 
slave, which was claimed by a third 
person: A trial of the right of .property 
was had, under the statute, and the 
slave was condemned, and sold, and the 
money received by the administrator: 
Afterward, the judgment of condemna- 
tion was reversed, and. the slave, upon a 
new trial, found not liable to the satis-' 
faction of the execution : Held, that the 



administrator was liable in his Individ- 
vial character, in an action of assumpsit, 
brought by the claimant, for the money" 
so received. ' Bur dine v. Roper, 7 A.*E;. 

92." Where an attorney receives nbtes 
from a partner, to. be- collected, and the 
proceeds paid* to the creditors of>the 
firm, if he collects the money, and does 
not pay it to the , creditors, the partner 
may recover it, in an action for money 
had and received. ' Mar'dis v. SJiackU- ■ 
/orcZ; 4 A. E. 493. 

93. Money voluntarily paid under ig- . 
norance of law, cannot be recovered 
back.vin an actio;a for,money had and re- 
ceived. Tlnirersity v. Keller, 1 A. R. 406*. 

.94", One who has paid money, or deliv- 
ered goods, upon- a contract whicli ' is - 
rescinded, may recover^the money in an 
'action for money rhad and received, may. 
maintain trover for ,his goods, or waive 
the- tort, and, bring am action for goods, 
sold and delivered. Fliarr n. Batkelor, 
3 A. R. 237. ■.,,'«.■ / 

,9.5. Where one man has money in his 
hands, which ex cequo et bono belongs to 
another, if there be no. contract modify- 
ing or controlling the general liability to 
pay, the pers.on entitled to the money 
may recover it in an action , for money 
had and received to his use. Hitchcock 
f.' ljukens;% V. 333. 

96. Nor is it 'necessary that there 
should have been any agreement be- 
tween the parties, to enable the .plaintiff 
to maintain this action ; the law creates 
the privity and the promise, lb. 

97.-.If, therefore, money be given to 
one person to deliver to a third, the right , 
to the money is transferred to the lattei", 
and he may bring this action. lb. 

98. The statute of frauds interposes 
no barrier to a recovery in such a case ; , 
the undertaking of the defendant, is, not 
to answer for the debt, default, or mis- 
carriage of another, but to pay the mon- 
ey of another already received, or when 
received, to a third person, lb. 

99. A- agreed by parol with B, who 
owned a tavern, that he would pay him 
|6€0 ; B was to convey to him one half 
the premises, and they were to keep the 
house jointly; A paid §400, and they 
commenced business ; B refusing to ex- 
ecute the conveyance, A refused to pay 
the residue, - and withdrew ; no settle- 
ment of the joint business had taken 
place : Held, that A could recover the 



ASSUMPSIT. 



91 



$400, as money had and received. Mad- 
dera v. Smim, 3 S. 119. 

100. Semble : One Vno lias paid a firm 
debt, at the request-'of a partner, after 
dissolution, cannot maintain an, action 
for money had and receivbd, against the 
firm. ' Weakley-Y. Bralian, 2 S..50Q. , - 

101. A jiurchased a note of hand ofB, 
drawn in B's liame by C and D ; E halv- 
ing a judgme^nt' against B,, garnisheed G 
as B's debtor:' No notice of the posses- 
sion of the note by \^ had been given to 
C, D, or E: Held,' that when C had, in 
pursuance of a judgment on siiell gar-' 
nishment, paid the amount of the" note.* 
to E, A could not recover it back from, 
E. Ilerndoa v. Sicearyngen,'! P. 192. '■ 

102. When money has been illegally 
exacted, no demand is nlcessai"y to ena- 
ble the party to maintain an action for 
money had ^and received. SpSnce v." 
Thompson, 11 A. R.'T-fSr,,', •.••.■'■/'• 

103. Where a person sells his proper- 
ty to pay certain' debts, and the pur.- 
chaser receives- it, and in consideration 
of the purchase, agrees to pay the debts, 
each creditor may maintain assumpsit 
against him for money had and received. 
Huckahee v. 3Ichj, 14 A. R. 263. » • • 

104. If a trustee, who is authorized to 
sell the trust properiy partly for cash, 
and partly upon credit, sells upon credit 
altogether, and when the credit expire"?, 
extends the debts, the cestui que trust 
may sue kim for money had and receiv- 
ed. Hughes v. StrinftJelloiQ, 15 A. R. 324. 

105. Assumpsit for money had and re- 
ceived, will lie to recover money paid in 
part performance of a contract, which is 
afterward rescinded by mutual consent. 
Whiter. TFooc?, 15 A. R. 358, 

106. B, an indorser on a Bill of ex- 
change, paid the amotmt to a bank, upon 
an agreement, that the bank should pros- 
ecute the clainr against ,T, a subse- 
quent indorser, for the benefit ofB, but 
the agreement was not to appear on the 
books of the bank: The bank obtained 
jiUdgment against T, who was ignorant 

. of the payment by B, collected the mon- 
ey, and paid it over to B : Held, that 
T could recover the money so paid, of 
B, in an alction of assumpsit. Boyd y. 
Taliaferro, 13 A. R. 424. 

107. An action for money had andi'e- 
ceived, lies to recover back money paid 

. on a contract, in advance of its perform- 
ance, which the defendant failed to per- 
form. Wkeelock v. Wright, 4 S. & P. 163, 



108. If a person, without authority, 
sells tlie goods of an estate, before ad- 
ministration is granted, and receives the 
money therefor, the administrator of the 
estate, appointed afterward, may bring 
trover against'him for the goods, or may 
waive the tort, and bring assumpsit for 
money had and received : And it will be 
no defense to the action, that the sale 
was void; and vested no title in the pur- 
chaser. JJpchurch V. Norsioorthy, 15 A. R. 
705. ■ 



Ilf.* For goods sold and delivered. 

• 109. In an action by partners, for 
goods sokland delivered, it appeared that 
the plaintiffs were commissionmerchants 
in^ Mol)ile, and that the defendant ad- 
dressed a letter to one of them, request- 
ing him to send the goods ; the goods 
•were ^ent by the plaintiffs, but without 
anyvldtter or bill of lading, the defend- 
ant supposing they were sent- by the 
partner to whom the letter was address- 
ed individually, and that to him alone 
he was accountable : Held, that the 
plaintiff's were entitled to recoveh Child 
V. Wofford, 3 A. R. 564. 

110. The vendor of goods, may main- 
tain an action on the contract of sale, 
without proof of a delivery. Kenan v. 
Starke, 6 A. R. 773. 

111. Assumpsit, as well as account, 
may be brought to recover for goods de- 

' livered to be sold and accounted for in 
New-York currency ; and a recovery may 
be had on a common count. Pope v. 
Robinson, 1 Si 415. 

112. In an action by a surviving part- 
ner, for goods sold bj the firm, it is suffi- 
cient, after verdict, that he sets out the 
character in which he sues, in the com- 
mencement of the declaration. Hill v. 
M'NeU, 6 P. 29. 



V. Ox ACCOUNT STATED. 

113. A count, on an account stated, 
is good, if it states the accounting of the 
defendant with the plaintiff, and the in- 
debtedness thereby for a specific sum, 
and concludes with a super se assumpsit. 
Carlisle v. Davis, 9 A. R. 858. 

114. Because an account stated may 
be declared on as such, this does not 



ASSUMPSIT. 



preclude the plaintiff from introducing 
it under other counts to which it may be 
applicable. Etoiue v. Sewall, 3 S. & P; 67. 

115. If, after an action is commenced, 
an account is stated between the parties, 
it may properly be given in evidence on 
the trial. Ih. 

116. Under the common count, on an. 
account stated, a promissory note is ad- 
missible evidence, without proof of its 
consideration. Ccdlin v. Gilders, 3 A. 
K. 536. Hightoicer \. Ivy, 2 P. 312. 
Gillaspie v. Wesson, 7 P. 454. 

117. But when a note is offered in evi- 
dence under the common counts, its ex- 
ecution must be proved. Hunley v. Lang, 
5 P. 154. 



VI, Of quaxtum valebant, and quan- 
tum MERUIT. 

118. An action for the breach of a 
contract under seal, must be brought up- 
on the instrument itself, unless the con- 
tract has been subsequently varied by 
the parties. Aikin v. Bloodgood, 12 A* 
E. 221. ' 

119. The addition of other work to a 
building, without any departure from 
the original plan, does not change the 
original contract entered into: If no 
price was agreed on for such additional 
work, a ouantum meruit would lie for 
it. Ih. 

120. The failure to finish the work by 
the time stipulated, is not a rescission of 
the contract : If accepted- by the other 
party, the objection is waived. lb. 

121. When a workman undertakes to 
do work, to be paid for in the notes of 
third persons, he cannot abandon the 
contract, and treat it as a money de- 
mand, unless the contract has been re- 
scinded, or he has been prevented by 
the act of the opposite party, from per- 
forming it according to its terms. lb. 

122. One employed to act as pilot on 
a steam-boat, who is willing, and ready, 
and offers to act as such, but whose ser- 
vices are refused, may, after the expira- 
tion of the term of service, recover the 
value of his services in indebitatus as- 
sumpsit, and need not alledge any ex- 
cuse for not performing the contract on 
his part. Beckivith v. Baldioin, 12 A. 
B. 720. 

123. The plaintiff was to erect a dwell- 



ing-house on lands of the defendant'^ 
intestate, and occupy the same free of 
charge during pleasure, or remove from 
it : If he removed from it, the defendant's 
intestate was to pay for the carpenter's 
work and the materials furnished by the 
plaintiff: He removed from the house af- 
ter the death of the defendant's intes- 
tate : Held, that the plaintiff could recov- 
er on the common counts, although the 
declaration showed a liability arising 
out of a contract in the lifetime of the in- 
testate, and a consequent promise to 
pay. Jones v. Jones, 8 A. Pi. 262. 

124. A promise to divide the rent of 
certain lands, for the year 1843, and un- 
til the determination of a named suit, 
induced by the undertaking of the prom- 
isee, to produce evidence on the trial of 
the suit, showing the failure of con- 
sideration of certain notes, will ena- 
ble the promisee to maintain indebi- 
tatus assumpsit, on showing the receipt 
of rents. Walke y, McGehee, 11 A. R. 
273. ^ ■ ■ ,_ 

125. Where professional services are 
performed under an agreement, that 
their value shall be determined by a re- 
spectable member of the profession, if 
the client refuses to have the value thus 
determined, assumpsit will lie for a 
quantum meruit. Bank of Alabama v. 
Martin, 4 A. R. 615. 

126.' Such an agreement, is at most, 
but ah agreement to arbitrate, and will 
not bar an action to recover the value of 
the services. _ lb. 

127. It is competent for a plaintiff, 
where no special contract is proved, if he 
have a good cause of action, to recover, 
either in a general indebitatus assumpsit, 
quantum m.eruit, or quantum valebant, as 
the proof may warrant, Hitchcock v. 
Lukehs, 8 P. 333. 

128. Where work has been performed 
under a special contract, and accepted, 
a recovery may be had on a quantum 
meruit, although the work was not done 
according to the special contract. Thom- 
osv. ^/?is,4 A. Pv. 108. ■ , 

129. A party who engages to do a par- 
ticular act, .as a condition precedent to 
his right to compensation, cannot, after 
partial performance, abandon the con- 
tract, and recover the value of his servi- 
ces. Reeves v. Wallace, 1 P. 116; 

130. A recovery may be had for work 
and labor, Avhen the defendant has ac- 
cepted the work, although it does not 



ASSUMPSIT. 



93 



amount to a complete performance of 
the special contract. Merriweatlier v. 
Taylor, 15 A. R..735. ■ Tliomas \. Ellis, 
4 A. R. 108. 

131. When the suit is on the contract, 
the plaintiff must prove the -n-ork clone, 
according to the agreement, and ^can-not 
recover by i^roving the use, and accept- 
ance of the work, by the defendant: 
But vrhen the suit is.on a note, executed 
after the work was done, proof by the 

-^ defendant, that the work was not com- 
pleted according to • the contract, vrill 
merely reduce the recovery pro tanto, 
•and the plaintiff will be • entitled to re- 
cover, as much as the work was reason- 
ably worth. lb. 

132. The plaintiff repaired the defend- 
ant's cotton-gin, under an agreement, 
that he should have all that he cou-ld 
obtain for it above fifty dollars, to com- 
pensate him for repairs; he kept it, in 
his possession, for several years, endeav- 
ored to sell it, but was unable to find a 
purchasers; the defendant addressed a 
note to the plaintiff, demanding the giii 
or fifty dollars, which concluded thus: 
"If you do not. give one or the other, 
we will have to settle the matter som^ 
other waj^;" the plaintiff, upon the re- 
ceipt of this note, permitted the defend- 
ant to take the gin into his possession: 
Held, that the inference from the evi- 
dence was, that the plaintiff assented fo 
the defendant's demand, and that he 
could not recover for the repairs, unless, 
perhaps, it could be shown that the de- 
fendant had sold the gin for more than 
fifty dollars, or, that the repairs made it 
worth moi'e than that sum, and that in- 
stead of selling, he had used it. . Hayden 
V. Boyd, 8 A. R. 323. 



, VII. Pleadijv'gs and Etidknce. 

133. When the time stated in a com- 
mon count, or in a count upon an ac- 
count stated, is subsequent to the title of 
the declaration, the defect is immaterial, 
and cannot be reached by demui^yer. 
Carlisle v. Davis, 9 A. R. 858. 

134. A count, on an account stated, is 
good, if it states the accounting of the 
defendant with the plaintiff, and the in- 
debtedness thereby for a specific sum, 
and concludes with a super se assumjmt. 
lb. 



135. A writing acknowledging a sum' 
of money to be due for corn and fodder, 
used by the party, maybe declared on as 
a promise to pay that sum immediately, 
and without noticing that it was due for 
corn and fodder. • 76. 

136. In assumpsit upon a verbal con- 
tract, 'the declaration should state a time 
when it was made ; but this is alledged 
only for form, and the plaintiff is at lib- 
erty to prove a contra,ct, es^:)ress or im- 
plied, at any time previous to commenc- 
ing the suit; and the insertion, or omis- 
sion of a vidjelicd, in making the allega- 
tion of the time, .can liaA-e no effect upon 
its materiality, t)r the admission of 
evidence. Hogan "v. Alston, 9 A. R. 

137. A single count in assumpsit upon 
s.everal promissory notes, is. good; and 
the plaintiff may recover upon as many 
of them as he produces at the trial,- with- 
out producing all; Bird v. Daniel, 9 A. 
R. 302. Dade v. BisJiop, Minor, 263. _ 

138. An allegation in a declaration in 
assumpsit for a sum of money collected 
by the defendant, for the plaintiff,, that 
the defendant "undertook and promised 
the plaintiff to pay that sum on demand, 
which though often demanded, he has 
not done," is a sufficient averment of a 
special request to pay the money. For- 
-rest V. Jones, 7 A. R. 493. 

139. If a declaration, in an action 
against an attorney, charge a neglect of 
duty, and impropriety of condvict, and 
also set out an undertaking by the attor- 
ney, ,to collect mone}-, and alledge a 
promise to make good any loss resulting 
from a breach of it, it is in assumpsit. 
Cook \. Bloodgood, 7 A. R. 083. 

140. And a count, setting forth a con- 
tract to perform specific acts with re- 
spect to a note deposited for collection, 
and showing a breach of the contract, is 
in assumpsit. The Bank of Mobile v. 
Huggins, 3 A.' R. 206. ■ 

141. When the plaintiff declares on 
the common counts against husband and 
wife, for Avork and labor at the instance 
of the wife, a recovery is proper, though 
the evidence discloses a contract with 
the wife when sole, and the performance 
of the service after the intermarriage. 
Sprague v. Morgmi, 7 A. R. 952. 

142. A recovery, may be had on the 
common counts, although there is a spe- 
cial contract, whenever by its breach, 
the plaintiff is entitled to recover a sum 



94 



ASSUMPSIT. 



in numero, or which can be rendered 
certain by a mere calculation. . lb. 

143. A recover}' on a count for_money 
had and received, cannot be' had on 
proof, that the administi'atrix of one ex- 
ecuting a receipt for several claims, paid 
on demand, one of the claiqis, and re- 
fused further to account, or to explain 
other items of the receipt. . Baskin^y. 
Sample, 6 A. E. 25§. ■ „• 

144. To recover on the money count, 
it is necessary' to prove, that the money 
has been received;' or there must be 
proof from -which such an inference can 
be draAvn. J6.' "^ ■" '" •* 

145. The. vendor of*goods, may main- 
tain an action on the contract of sale, 
without proof of a delivery. Kenan f . 
Moore, 6 A.R. 773. 

14-6. In the. action of assumpsit, it is 
no^^t necessary that the writ should be in, 
a plea of "trespass .on the case;" it is 
sufficient if it be "in a plea of theeasS." 
StovaUx.Nahors,! A:11.21%. ■ ' 

147. A promissory note may be giYeh 
in evidence under a count for mcgiey ha*d 
and received. Gillaspie\. Wessbn, 7 P. 
454. HigJitowerY.Ipi/, 2 P. -212. 

148. But when a writing "is offered in 
evidence under the coiiimon counts in 
assumpsit, its execution must be proved.* 
Hunley v. Lang, 5 P. 154. 

149. In such a case however, the note^ 
imports of itself, a sufficient considera- 
tion. 76. 

150. Where there is a- count upon a 
special agreement, arid another on a 
qiiantnm ineTitif, for work and labor, 'the 
statement by the plaintiif 's coiinsel, that 
by reason of the absence of a witness, 
the special contract could not. be proved, 
but he would waive it, and go to trial on 
the common count, will not be sufficient 
to exclude -evidence adduced in support 
of the common > count. Blair x. Asbwy, 
4 P. 435. . . • 

151. But a re(!overy cannot be had 
vmder a general count, where the evi- 
dence establishes a cause of action, upon 
which, there might be a recovery upon a 
special count. Clements v. Eslavct, 4 P. 
502. - . . ■ 

152. Thus, under a general count for 
money, for the price of mules, the plain- 
tiff cannot recover, on proof that the 
mules were to be paid for in lumber, 
which had not been delivered. Ih. 

153. In such a case, the defendant 
may either move to exclude the evidence 



of the special contract from the jury,' or 
for instructions from the court, that the 
contract proved, varies from that laid. 
lb. ., 

154. In an action of assitmpsffc, 
brought by a physician, to recover for 
medical "services, the defendant, under 
the plea of non-assumpsit, may avail 
himself of the defense, that the plaintiff 
had no authority, at the time the. servi-. 
ces were rendered, to practice as a 'phy- 
sician. MattheiDS v. Turner, 2 S. & 'JP.-H 
^39. * , ' • • ;. ' ■■. \_ ■ •. , 
* .155. In assumpsit agains't partners,* 
un-der the common' C(5unts, proof of a 
prt>mise by one, in the firm name, is not 
sufficient; there must be a joint promise 
proved, or.proof of the existence of the 
partnership. Findla^ \JiStenen$on, 3 S. 

48. : . •'•■;*' ' ".' > . ■ •■ , 

156. In assumpsit, ■ payment maybe 
gi^Bd in evidence under the general is- 
sue, to' reduce the damages, although 
nlaid* aftet £i,uit brAught. McMillian v. 
Wallace*, Z^.lp. 

157. Where a plaintitf'fails in proving 
a special contract-as laid, but proves the 
performance of one .different, he may 
,§till recover under the common counts 
ih oe.rtain cases. lb. 

158. Though' there be a special con- 
tract for the rent of land, the plaintiff 
may, under tiie . 'statute, .recover on a 
count for use and occupation, reasonable 
rent, not exceeding the price fixed by 
the contract. lb.- 

159. Though in'a conamon count in 
assumpsit, it is not necessary to state- 
the particular gootlg sold, work done, 
&c., yet the consideration of the indebt- 
edness must sufficiently appear, to show 
it to be a simple contract debt, and not • 
matter of record or specialty. Maury v. . 
Olive, 2 S. 472. 

160. Where the plaintiff declared in 
assumpsit, on a note for $1500, to be 
paid oji the happening of a certain event, 
ajid averred that the event had happened, 
as appeared by an indorsement on the 
note, it was held, that this was sufficient 
to warrant a judgment by default final 
for the amount, there being no plea filed. 
Me Gehee v. Cli Heiress, 2 -S. 506. 

161. The common counts in assump- 
feit, are not supported by evidence, that 
the defendant had agreed to board the 
plaintiff for a year. Hdynes v. Woods, 1 
S. 12. 

Ii62. In an action of assumpsit, it was 



ASSUMPSIT. 



95 



proved, tliat A sold his crop of cotton to 
G, and agreed to gin. and deliyer it as 
soon as practicable, for which G was to 

f)ay 11^ cents per pound as soon as de- 
ivered, deducting the amount of an ex- 
■• . ecution which he held against A, from 
the price: G AYas ,wealthy and in good 
credit, had advanced SoO toward the 
price of the cotton, "and A had sold and 
delivered it to another: Held, that.it 
, was not necessary that G should give 
further proof of readiness to perfoi-m liis^ 
■part of th^ agreement. Anderson v. 
■QartJiylS. 160. . , 

163. To support a common count, it 
is necessary to prove every tiling, which 

' it would lie necessary to avei-, if the^ 
count was speoial. Landhim v. Brodk^ 
.shire, 1 S. 252. . 

164. Under the plea of non-dssump,sii, 
evidence' of a set-off_is- not 9,dmis^b3e, 
"without notice. Judson. v. Eslava, Mi- 
nor, 2. ' ' . . " 

•• .165. A declaration, that defendant 
was indebted to plaintiff for money had 
and received, without stating "to. plain- 
tiff's use," is good after verdict. ■ lb. 

166. In assumpsit on an unliquidated 
demand, a plea of payment, does not ad- 
mit the full amount of the demand. 

' " Haley v. Caller, Minor, 63. 

167. On a quantum meruit for board, 
food furnished for a horse, &c., the es- 
tablished tavern rates are not the best 
evidence, unless it be shown, that the 

• plaintiff was a tavern-keeper. Beddo v. 
Smith, Minor, 397. . * , 

168. A recovery may be had upon the 
common counts,, for an instalment due 
upon a call of an incorporated company, 
.upon its stockholders. Gayle v. The Gp,- 
haivba & Marion Rail-road Qo., 8 A. 
R. 587. Beene \. The Same, 3 A. R. 
660. 

169. In an action of assumpsit against 
. an administrator de bonis non, an offer 

by the administrator in chief, to pay the 
principal sum sued for, in notes of third 
persons, is proper evidence to be left to 
the jury: The question upon such proof, 
is, whether by, this offer, the party was 
to be understood as admitting the debt 
sued for, to be a valid and subsisting 
debt, which he was liable and willing to 
pay; or whether the offer to pay in notes 
was intended as a qualification of his li- 
ability, and as the condition upon which 
alone he was willing to pay. Newhotcse 
V. Eedicood, 1 A. R. 598. 



170. Where an action is brought by 
one person for the use of another, to re- 
i30ver for work and lat)or, the nominal 
plaintiff cannot recover, upon proof, that 
the work was done by the party for 
whose use the suit Ls brought, unless he 
stood'^n such a relation, that the right 
to compensation inured to him. Moonet/ 
y. li-ei/, 8 A. R. SLjO. 

171. 'Where an agent declares in the 
common counts,, on a promise made to 
h'iin for the benefit of his principal, the 
plea of non-assunijisit puts in issue, his 
right to niaintain the action in his own 
namev Nabors \. Shippey, 15, A. R. 
294. 

-■ 172. The defendant may pi'ove, under 
the general issue in assumpsit, that the 
action was commeftced before the debt 
was due. Eaihey v. Long,- 9 A.- R. 754. 
(In conflict with Jones v. Tarborough, 2 

■A..R.524,)- 

173. ■ In assumpsit by the indorsee of 
a note, the defendant may prove under 
the general issue; that- the legal title to 
the n,ote, is not.in the plaintiff. Birch 
v. Tittotsou,, 16 A, R. 387. Uvans v. 
Go7xlon'*8 P.-142. (These cases conflict 
with ^eal y. Snedicor, 8 P. 523. Jen- 
nings Y. Cummings, 9 P. 309. Tarver v. 
Najice, 5 A. R. 712, and jBa«c?'o/? v. 

■ Paine, 15 A. E. 834.) . 

174. When the plaintiff declares in 
the common counts, for work and labor 
on a farm, he cannot recover, if it is 
proved that there was a special contract 
between the parties, that the plaintiff 

r,shouij:l receive apart of the crop, al- 
though the ■ precise terms of the con- 
tract are not shown. Snedicor v. Leach- 

. kian, 10 A. E. 330. 

- ,1753 A due bill may be given in evi- 
dence under a count upon a promissory 
notCj or under an insimul computassent. 
Johnson v. Johnson, Minor, 263. 

176. When the suit is on a contract, 
the plaintiff must prove the work done, 
according to the agreement, and cannot 
recover by proving the 'us^, and accept- 
ance of the work, by the defendant: 
But when the suit is on a note, executed 
after the work was done, proof by the 
defendant that the work was not com- 
pleted according to the contract, will 
merely reduce the recovery jyro tanto, 
and the plaintiff will be entitled to recov- 
er, as much as the work was reasonably 
worth. Merriioeather v. Taylor, 15 A. 
R. 735. • 



96 



ATTACHMENT. 



ATTACHMENT. 

L Who may sue out aist Attachment, 

AND FOR WHAT DEMANDS. 

II. Op the Affidavit for an Attach- 
ment. 

III. Of the Attachment Bond. 

IV. How THE Writ should be direct- 
ed, AND TO WHAT GoURT RETURNABLE. 

V. What property may be attached; 

AND herein of THE OFFICER'S RETURN, 
AND OF THE LlEN OP ATTACHMENTS. 

{a) What may be attaclied. 
(6) Levy and return, 
(c ) Lien of Attachments. 

VI. Who may replevy; and herein of 

THE PiEPLEVIN BoND. 

VII. Ir'regularities in Attachment 
Causes, and hov/ taken advantage 
OF, waived, or remedied. 

VIII. Of the Judgment and Execu- 
tion; AND herein of THIi SALE OF 

perishable property before judg- 
ment. 

IX. Of Ancillary Attachments. 

X. Judicial Attachments. 
XL Attachments for Rent. 

XII. Liabilities for suing out At- 
tachments WRONGFULLY. 

XIII. Proceedings aga.inst Garnishees. 

(a) Nature of the proceeding; when 
a garnishment may be issued, 
against whom, and of the affida- 
vit and officer's return. 

(&) Of the answer, issue, and proceed-i 
ings thereon. 

(c) When judgment may be rendered 
on the answel- or not, and what 
property maybe subjected in this 
proceeding. 

{d) Proceedings when Garnishee has 
been notified of a transfer ; and- 
of the contest with the Assignee. 

(e) What defenses Garnishee may make, 
and what irregularities he may 
take advantage of. 

(/) Of the Judgment nisi, liability for 
costs, and allowance to Garnishee. 

{g) Effect of Judgment against Garni- 
shee, and payment thereof. 



'I. Who jiay sue out an Attachment, 
and for what demands. 

1. An act'ion may be commenced- by 



attachment, to recover for a breach of 
warranty of the soundness of a slave. 
JVeaver v. Puryear, II A. R. 941. 

2. Trover cannot be commenced by- 
attachment. Marshall v. White, 8 "P. 
551.- _ " , . • ' 

3. A corporation -^rhich may sue and 
be sued," may proceed agaiiist a debtor 
by attachment, in the same way that an 
individual may. The P. & M. Bank v. 
Andreios, 8 P. 404. 

. 4. The right conferred on the State 
Bank, of suing out attachments in the 
county.of its location, is a privilege con- 
ferred on it, and does not abridge the 
power it previously possessed, of suing 
out attachments in the county of the de- 
fendant's residence. Pearson v. Gayle, 
11. A. R. -278,. 

5. The second section of the act of 
^1840, in providing that the State Bank 
'and its branches, are severally author- 
ized to take out attachments according 
to the first section thereof, on the appli- 
cation of any iiidorser or security to a 
bill, note, or other demand, and on sat- 
isfactory showing of such indorser or 
security, on oath or otherwise, that either 
of -the grounds specified in the act exists, 
does not require an officer of the Bank 
to reaffirm, or verify again, the ground 
stated by an indorser or security ; but if 
the ghowing is satisfactory to the Bank, 
and the oath or affirmation is sufficient 
in point of form, and made before a prop- 
er officer, the Bank may take out an 
attachment thereon, aS provided by the 
first section. Faver y. The State Bank, 
10 A. R. 610. . ^ 

6. The effects of a non-resident part- 
ner may be attached, although there is 
one of the firm resident in the state. 
Conklin v. Harris, 5 A. R. 213. 

7. An attachment may be sued out 
against one of several partners, without 
joining the others. Green v. Pyne, I A. 
R.-235. - ■ _ 

8. An attorney intrusted with a note 
for collection, is authorized to sue out 
the process of attachment. Kirksey v. 
Jones, 7 A. R. 623. 

9. A non-resident may sustain an ori- 
ginal attachment against an abscond- 
ing debtor. Woodley v. Shirley, Minor, 14. 

10. Process of attachment by one non- 
resident against another, will lie only for 
causes of action, on which, debt or in- 
debitatus assumpsit could be brought 
Hazard \. Jordan, 12 A. R. 180. 



ATTACHMENT. 



9T 



11. A mere probability that a surety 
"will have to pay the debt, or that suit 
must be brought for it in another state, 
will not support proceedings by attach- 
ment. Benson v. Campbell, 6 P. 455. 

12. A contingent 'liability, is not a 
debt which will support proceedings by 
attachment ; but unless the contingency 
is alledged by the writ, affidavit, or bond, 
the debt will be presumed to be absolute. 
The P. & M. Bank v. Andreios, 8 P. 
404. Miller v. McMillan, 4 A. E. 527. 

13. The indorsement on a writ of at- 
tachment is no part of the record, the 
cause- of action not being required to be 
indorsed, and will not be looked to to as- 
certain the nature of the demand form- 
ing the basis of the action. The P. & 
M. Bank v. Andreivs, & P. 404. 

14. Absconding within the state, is 
alone a sufficient ground for an attach- 
ment, whether the plaintiff, or defend- 
ant, or both, be resident or non-resident. 
Middlehrook v. Ames, 5 S. & P. 158. 

/• 15. A" mere temporary absence of a 
' person from the state, on business or 
pleasure, does not au.thorize an attach- 
ment against his estate. Pitts v. Bur- 
roiighs, 6 A. It. 733. / 

16. A non-resident, cannot sue out an 
, attachment against the property of a de- 
ceased non-resident debtor. Tleming- 
way V. Moore, 11 A. K. 645. 

17. A suit commenced by attachment, 
is within the law forbidding process to 
be served on Sunday. Cotton y. Huey, 
4 A. K. 56. 



II. Of the Affidavit for an Attach- 
ment. 

18. An affidavit that a party is about to 
remove from the county, so that ordina- 
ry proijess cannot be served on him, is 
not sufficient to authorize' an attachment 
to issue. Wallis v. Murphy, 2 S. 15. 

19. The affidavit should state, that the 
defendant actually resides out of the 
state, so that the ordinary process of 
law cannot be served on him. Wilson 
V. Oidlaio, Minor, 196. 

20. On attachment returnable to cir- 
cuit or county courts, it is not necessary 
that the affidavit should state, that the 
sum sworn to is duo after deducting all 
discounts or set-offs due to defendant, or 
that a regular statement of the account 

1—13 



was produced and sworn to. Harris v. 
Clapp, Minor, 328. 

21. To sustain original attachment 
against a non-resident, it is not necessary 
that it should be stated by affidavit, that 
the plaintiff resides in the state. Peters 
V. Boiver, Minor, 69. 

22. Where an attachment is issued by 
a justice of the peace, for a sum within 
his jurisdiction, upon an insufficient affi- 
davit, the proceedings are not void, but 
voidable only. Parmer ^\ Ballard, 3 S. 
326. 

23. An affidavit for an attachment, 
made by an agent of the plaintiff, that 
the plaintiff and defendant reside in the 
state of New-York ; that the defendant 
is indebted to the plaintiff in a certain 
sum, not due; that the defendant has 
not property in the state of his residence, 
sufficient to satisfy the debt, and that the 
attachment is not sued out for the pur- 
pose of vexing or harassing the defend- 
ant, is sufficient to sustain the proceed- 
ing. Pearsoll v. Middlehrook, 2 S. & P. 
406. 

24. The affidavit for an attachment 
should show what part of the debt, if 
any, is not due, and when it. will be due ; 
and the declaration should conform to 
the facts ofthe case. Stowe v. Seivall, 3 
S. & P. 67. 

25. A party proceeding by attach- 
ment, must confine himself, in his affida- 
vit, to some one of the distinct grounds 
on which the process is authorized to 
issue; and if the affidavit states several 
grounds in the disjunctive, the process 
will be quashed; an affidavit, therefore, 
that the defendant has removed, or ab- 
sconded, is insufficient. Johnson v. Hale, 
3 S. & P. 331. Cannon v. Logan, 5 P. 77. 

26. An affidavit that the defendant 
"aljsconds, or secretes himself" is suffi- 
cient; these words form one distinct 
ground upon which an attachment may 
issue. Cannon v. Logan, 5 P. 77. 

27. The affidavit need not disclose the 
evidence of the deljt, as a bond or note, 
&c., but only the sum claimed as due. 
Fleming v. Burge, 6 A. R. 373. Starke 
V. Marshall, 3 A. R. 44. 

28. It is not necessary to state, in the 
affidavit for an attachment against a 
non-resident, that the ordinary process 
of law cannot be served on him. Conk- 
lin V. Harris, 5 A. 11. 213. 

29. An affidavit, that the defendant is 
inde))ted to the plaintiff in a certain 



98 



ATTACHMENT. 



sum, by note, and setting out the note 
in licec verba, is sufficient to support an 
attachment. Alforcl v. Johnson, 9 P. 320. 

30. An affidavit, that in consequence 
of the removal of the goods and effects 
of the defendant, ordinary process can- 
not be served on him, is not sufficient to 
support an attachment. Napijer v. No- 
land, 9 P. 218. 

31. An affidavit actually sworn to, is 
sufficient to support an attachment, al- 
though the justice before ivhom the oath 
was taken, did not make certificate of 
the fact. M'Cartney v. The Branch 
Bank at Huntsville, 3 A. R. 709. 

32. An objection, that the affidavit on 
which an attachment issiles, has not been 
verified and subscribed, or that the jus- 
tice before whom it purports to have 
been made, was not such in fact, must be 
presented by plea in abatement. Loio- 
rij V. Stowe, 7 P. 483. 

33. An affidavit for an attachment, 
need not state how the debt accrued, but 
only the amount. Starke v. Marshall, 3 
A. R. 44. 

34. An affidavit will support an at- 
tachriient, although it alledge that the 
defendant will be indebted, if it also 
state facts showing a present indebted- 
ness. McCartneij v. The Branch Bank 
at Huntsville, 3 A. R. 709. 

35. An affidavit, that the defendant is 
"about to abscond himself and his pro- 
perty out of the state," is equivalent to 
alledging, that the defecdant is about to 
remove himself and property out of the 
state, and therefore, within the statute, 
sufficient to support an attachment. 
Ware v. Todd, 1 A. R. 199. 

36. That a debtor " is about to dispose 
of his property fraudulently, to avoid 
the payment of the debt," does not au- 
thorize the creditor, to sue out an origin- 
al attachment, commanding its seizure. 
Beynolds v. Culbreath, 14 A. R. 581. 
(Changed by statute. Acts 1849 — '50, 
p. 44, sec. 1.) 

37. The affidavit of one describing 
himself as agent of the plaintiff, is suffi- 
cient to authorize an attachment. Mur- 
ray V. Cone, 8 P. 250. 

38. When an attachment issues at the 
instance of one non-resident, against 
another, the affidavit should state, that 
the defendant has not sufficient property 
within the state of his residence to satis- 
fy the debt, not only mthin the knowl- 
edge, but Avithin the belief of the affi- 



ant. Cobb V. Miller, 9 A. R. 499. Cobb 
V. Force, 6 A. R. 468. 

39. A statement in an affidavit for an 
attachment, that the defendant "is a 
non-resident," is sufficiently certain. 
Graham v. Ruff, 8 A. R. 171. 

40. A non-resident, commencing a 
suit by attachment, need not state the 
fact of non-residence in his affidavit : If 
such is not the fact, it may be pleaded in 
abatement. Jackson v. Stanley, 2 A. R. 
326. 

41. The sureties in a bond for an at- 
tachment, may prove, that an affidavit 
was made, and is lost, so that another 
may be substituted. Simpson, ex parte, 
7 A. R, 842. 



III. Of the Attachment Bond. 

42. Defects in the bond and affidavit, 
made on suing out an attachment, are 
not available on error, unless the excejt-' 
tion has been taken by plea in abate- 
ment in the court below. Burt v. Par- 
ish, 9 A. R. 211.^ 

43. Objections^o the sufficiency of an 
attachment bond, must be taken in the 
court below, that the plaintiff may have 
an opportunity to execute a sufficient 
bond. Conklin v. Harris, 5 A. R. 213. 
Fleming v. Burge, 6 A. R. 373. 

44. And it is too late to make the ob- 
jection on error, that the bond is insuffi- 
cient, although the record does not show, 
that the defendant had any actual notice 
of the suit before judgment. Fleming 
V. Burge, 6 A. R. 373. 

45. An attachment will not be quash- 
ed on account of a defective bond, unless 
the plaintiff is unwilling to execute a 
good bond. Scott v. Macy, 3 A. R. 250. 
Loioe V. Derrick, 9 P. 4l5. Loiory v. 
Stowe, 7 P. 483. P. (^M. Bank v. An- 
drews, 8 P._404. ^ 

46. But if the plaintiff when required 
by the court to perfect the bond, decline 
doing so, the attachment may be quash- 
ed. Loiory v. Stowe, 7 P. 483. 

47. The authority of an agent to exe- 
cute an attachment bond, must be ques- 
tioned by plea in abatement, or it vsdll 
be presumed: Alford v. Johnson, 9 P. 
320. 

48. Where an affidavit describes the 
plaintiff by the christian name of "Abra- 
ham," and in the bond and attachment 



ATTACHMENT. 



fie is called " Abram," the bond and at- 
tachment may be amended, to conform 
to the affidavit. Ih. 

49. The bond of a non-resident plain- 
tiff, need not show that the sureties re- 
side within the state ; if such is not the 
fact, the attachment may be abated. 
Jackson v. Stanley, 2 A. R. 326. 

50. A non-resident plaintiff, need not 
be" a party to the bond, given upon suing 
out an attachment against a non-resi- 
dent. Ih. 

51. There is no difference between a 
void bond, and one that is defective ; in 
either case, it is the duty of the court, 
to permit the plaintiff to substitute one 
that is sufficient. lb. 

52. A bond conditioned to prosecute 
the attachment to effect, and pay the 
defendant all such damages as he may 
sustain, by the wrongful, or vexatious 
suing out of the attachment, is sufficient. 
Saltmarsli v. Evans, 1 S. 132. 

53. When an attachment is sued out 
against a non-resident, it is not neces- 
sary that the bond should be condition- 
ed for the payment of costs. Harris v. 
Clapp, Minor, 328. 

54. When the clerk, pursuant to an 
order of the court, that a bond to be ap- 
proved by him, should l)e filed within 
ninety daySj receives a bond within 
the time, and indorses it filed in office, 
he cannot afterward be permitted to' tes- 
tify, that he did not approve or disap- 
prove it. Pearson v. Gayle, 11 A. R. 278. 

55. The want of an affidavit, or a 
bond, can be taken advantage of only by 
plea in abatement ; and it makes no dif- 
ference that the defendant is a non-resi- 
dent. Jones V. Pope, 6 A. R. 154. 



IV. How THE WRIT SHOULD BE DIRECT- 
ED, AXD TO WHAT COURT RETURXABLE. 

56, Although the proper direction of 
process is to the sheriff, yet a judgment 
will not be reversed, because an attach- 
ment is directed to any lawful officer, if 
it is executed by the proper officer. 
Ware v. Todd, 1 A. R. 199. 

57. The act which requires process is- 
sued from the clerk's office, to be direct- 
ed "to any sheriff of the state of Ala- 
bama," &c., does not embrace attach- 
ments issued by a justice of the peace. 
Alford V. JoJinson, 9 P. 320. 



58. A justice of the peace of one coun- 
ty, is not authorized to issue an attach- 
ment, returnable into another; and it is 
competent for a garnishee, to avail him- 
self of the irregularity in the attachment, 
in an appellate court, though no objec- 
tion had been made to it previous to the 
judgment below. Deiu v. The Bank of 
Alabama, 9 A. R. 323. Brooks v. Good- 
imn, 8 A. R. 296. Caldwell v. Meador, 
4 A. R. 755. 

59. Where an attachment is issued by 
a justice of the peace in one county, re- 
turnable to a court in another county, 
the objection may be taken on error, 
though it was not made in the court be- 
low, if it has not been waived, by ap- 
pearing and pleading to the merits. 
Brooks V. Goodicin, 8 A. R. 296. 

60. The act of 1814, concerning at- 
tachments, relates only to attachments 
issued by, and returnable before justices. 
Brown v. Masscij, 3 S. 226. 



V. What property may be attached; 
a:sd herein of the officer's return, 
AND of the Lien of Attachments. 

(a) What may be attached. 

61. An .attachment maybe levied on 
land, after the levy of an execution. 
Johnson V. Burnett, 12 A. R. 743. 

62. The levy of an attachment on a 
pair of shoes, if they are of any value, is 
sufficient: If the levy is fictitious, or col- 
orable, it would be quashed on motion, 
Thornton y. Winter, 9 A. R.613. 

63. The mere right to personal proper- 
ty, in possession of another, is not sub- 
ject to seizure by attachment, or execu- 
tion, if 1/lie possession originated and is 
continued in good faith; Morton v. 
-Smith, 8 A. R. 73. 

64. Under the statute authorizing an at- 
tachment in favor of a resident citizen, 
against the executor, or administrator of 
a deceased non-resident debtor, the at- 
tachment can only be levied on property 
of the deceased within this state, which 
has not been reduced to possession by 
the foreign representative, so as to be 
assets. Loomis \, Allen, 7 A, R. 706. 

65. The effects of a non-resident part- 
ner may be attached, although there is 
one of the firm resident in the state. 
Conklin v. Harris, 5 A. R. 213. 



100 



ATTACHiMENT. 



06. A debt in suit in one county, can- 
not be attached by a creditor of the plain- 
tiff, in anothei' county, the defendant in 
attachment controverting the justice of 
the demand. Whether a debt in. suit can 
be attached in any other court than that 
in which the suit is joending, qucere. 
Bingham v. Smith, 5 A. K. 651. 

67. But a debt in suit may be attach- 
ed by a creditor of the piaintiif, in the 
court where the suit is pending. Hitt v. 
Laceij, 3 A. R. 104. 

68. A negotiable note, not indorsed 
before its maturity, may be the sul:gject 
of an attachment or garnishment, at the 
suit of the creditors of the payee, so lono- 
as he remains its proprietor, or until the 
maker has notice of its transfer, if in- 
dorsed when past due. Mills \. Stew- 
art, 12 A. R. 90. 

69. A debt due by promissory note, is 
subject to garnishment; and a transfer 
of the note, after service of the process, 
to a bona fide holder without notice, does 
not affect the lien of the-.- garnishment. 
Dore V. Dcnvson, 6 A. E. 712. 

70. A debt to be paid when certain ser- 
vices are rendered, may be assigned be- 
fore the services are performed ; and the 
assignee will hold it against an attach- 
ing creditor of the assignor, if the as- 
signment was before the attachment, and 
bona fide. . Paj/ne v. The Mayor of Mo- 
bile, 4 A. R. 333. 

71. A surplus remaining in the hands 
of a register, after satisfying a decree in 
chancery, for Avhich a sale of property 
was made by him, may be attached, al- 
though the sale has not been confirmed. 
Langdon v. Lockett, 6 A. R. 727. 

72. Money collected by an attorney, 
may be attached. Mann v. Buford, 3 
A. R. 312. 

73. So may money collected by a jus- 
tice of the peace, in his official capacity. 
Clarlc V. Boggs, 6 A. R. 809. 

74. So may a surplus in the hands of 
a constable, after satisfying an execu- 
tion under which he had sold the de- 
fendant's property. King v. Moore, 6 
A. R. 160. 

75. But money collected by a sheriff, 
by execution, cannot be attached as the 
property of the plaintiff in the judgment. 
Zurclier v. Magee, 2 A. R. 253. 

76. Property levied on by attachment, 
and replevied, cannot be levied vipon, 
while the attachment is pending. Rives 
V. Wilbornc, 6 A. R. 40. 



(b) Levy and return. 

77. A sheriff who levies an attach- 
ment, or writ of execution, should in a 
reasonable time thereafter, indorse on 
the process, a memorandum of the prop- 
erty seized; or where it consists of so 
many different articles, that they cannot 
be thus indorsed, conveniently, then he 
should make out an inventor j^, and. file 
it with the process. Toidmin v. Lesesne, 
2 A. R. 359. 

78. The sheriff's return to an attach- 
ment, stating that he_ had levied the 
same on four horses, "describing their 
colors, as the property of the defendant, 
is sufficient. FlemingY.Burge, 6 A.H. 
373. Miller v. McMillan, 4 A. R. 527. 

79. AVhere the sheriff returns to a 
writ of attachment, that he has levied on 
certain property, it Avill be intended, 
that the property levied on, was that of 
the defendant. BicJcerstaffx. Patterson, 
8 P. 245. -Thornton v. Winter, 9 A. R. 
613. 

80. Where the sheriff returns to a ju- 
dical attachment against three defend- 
ants, that l^y A-irtue of the Avrit he had 
Jevied on certain slaves, and that they 
were replevied by the defendant, this 
court will not look to the replevin bond, 
but wiir intend from the return, that the 
slaves were the property, of the defend- 
ants. Kirksey v. Bates, 1 A. R. 303. 

81. So long as the return of a sheriff 
is permitted to remain, it must be taken 
to be true for all purposes, both as it re- 
spects the sheriff, and parties claiming 
rights under it: Therefore, in an action 
against a sheriff for making an insuffi- 
cient levy of an attachment, he cannot 
show, that by the mistake of a depvity, 
a return was made upon the attachment, 
of a slave not levied on, and that in point 
of fact, a sufficient levy had been made. 
Clarke v. Gary, 11 A. R. 98. 

82. If a deputy empowers a stranger 
to levy an attachment, and adopts the 
levy by his [return, it becomes his ovra 
act. lb. 

83. The levy of an attachment on a 
pair of shoes, is sufficient, if they are of 
any value : If the levy is fictitious, or 
colorable, it would be quashed on mo- 
tion. Thornton v. Winter, 9 A. R. 613. 

84. Where the sheriff returns an at- 
taclunent, levied on certain lands in the 
possession of a person not a party to the 
writ, it will be intended, in order to sus- 



ATTACHMENT. 



101 



tain the proceedings, that they Tvere the 

property of the defendant, and levied on 

• as his'. Lucas v. Goochvin, 6 A. R. 831. 

85. A levy of an attachment upon prop- 
erty, is equivalent to personal service of 
process; and the summons of a garni- 
shee, who is indebted to the defendant in 
the attachment, is to this end, a levy on 
property; Thompson v. Allen, 4 S. & P. 
184. 

86. Where an attachment against C 
G M, W J W, and T R C, was returned, 
"levied on four bags of cotton marked 
T R C, twenty-one bags W J W, and 
fifteen bags marked C Gr M, M E Gary, 
S S Cj^^it was held, that the court would 
judicially know, that M E Gary was 

sheriff of Sumter ; and that the return 
sufficiently showed, that the property 
levied on, belonged to the defendants. 
3Iiller v. McMillan, 4 A. R. 527. 

87. An attachment ought 'not to be 
quashed, because the articles of person- 
al property levied on, are not specifical- 
ly described in the sheriff's return. 
Green v. Pyne, 1 A. R. 235. 

88. Nor because land was levied on 
before the act of 1837, as well as person- 
al estate ; the levy on the personal es- 
tate is a good execution of the process, 
Avhether the levy on the land was good or 
not, which is doubtful. lb. 

89. After judgment upon an attach- 
ment, it is not error, to overrule a mo- 
tion to strike out a levy upon land, there 
being a levy on personal estate also. 
Cannon v. Logan, 5 P. 77. 

90. Under the attachment act of 1833, 
the writ could only be executed in the 
county to which it was returnable, but 
it is otherwise under the act of 1837. 
Starke v. Marshall, 3 A. R. 44. 

91. An attachment is within the law 
prohibiting process to be served on Sun- 
day ; but when an attachment is served 
on Sunday, its service cannot be aljated 
by plea : The proper course is, to move 
the court to set aside the process for ir- 
regularity in its sernce. Cotton v. Huei/, 
4 A. R. 56. 

(c) Lien of Attachments. 

92. The omission of the sheriff to re- 
turn an ancillary attachment which he 
has levied, until after judgment upon it 
is rendered, will not affect the lien of the 
plaintiff in attachment, he not being 
privy to, or consenting to the act of the 



sheriff: The return when made, relates 
back to the time of the levy. Eeecl v. 
Perkins, 14 A. R. 231. 

93. The lien of an attaching creditor, 
on laud, is superior to the title of a pur- 
chaser under a subsequent judgment, 
with notice of the levy of the prior at- 
tachment. Baldwin v. Leftwick, 12 A. 
R. 838. 

94; The levy of an ancillary attach- 
ment, upon land, operates a lien; and 
when a judgment is rendered in favor of 
the plaintiff,- his right to have the land 
sold to satisfy his judgment, will over- 
ride and defeat all intermediate convey- 
ances made by the defendant. Randolph 
v. Carlton, 8 A. R. 606. 

95. When a debt due by promissory 
note,, is attached by garnishee process, • 
the service creates a lien, which cannot 
be defeated by a subseepient hona fide 
transfer by the payee of the note, to a- 
third person, who is ignorant of the pro- 
cess. Dore V. Daicson, 6 A. R. 712. 

96. The lien of an attachment is only 
an inchoate right dependent upon the 
judgment; if that is not recovered, the 
lien is gone: Where therefore, an at- 
tachment is levied on real and personal 
estate, and the defendant dies, and his 
representative pleads the insolvency of 
the estate, the lietf of the attachment is 
lost. Hale v. Cummings, 3 A. R. 398. 

97. The giving of a replevin bond, 
does not discharge the lien acquired by 
the levy of an attachment. M'Rae v. 
M'Lean, 3 P. 138. (Saffold, J., dis- 
senting.) Rives V. Wilborne, 6 A. R. 46. 

98. The lien created by the levy of an 
attachment on property, is not impaired 
by the right to replevy. Carij v. Gregg, 
3 S. 433. 

99. If a judgment creditor does not 
continue his lien, by suing out execution 
from term to term, a subsequent attach- 
ing creditor will acquire a priority. Tb. 

100. The lien of an attachment com- 
mences with its levy, and cannot be di- 
vested -by the levy of an execution upon 
the same chattels, which had no lien be- 
fore the attachment was levied. Pond 
V. Grifjln, 1 A. R. G78. 



VI. Who may replevy; and nEREiN of 
THE Replevin Bond. 

101. Under the act of 1818, the bond 



102 



ATTACHMENT. 



given "to replevy property levied on by 
attachment, must be payable to the 
sheriff, and assigned by him to the plain- 
tiff, who may sue upon it in his own 
name. Seioall v. Franliin, 2 P. 493. 
Cummins v. Grai/, 4 S. & P. 397. Sar- 
tin V. Weir, 3 S.' & P. 421. Aclkins v. 
Men, 1 S. 130. 

102. By that act, the bond was re- 
quired to be executed by the defendant, 
his agent, attorney, or factor; if, there- 
fore, it was executed by .a stranger, or 
payable to the plaintiff in the attach- 
ment, it was void, both as a statute, and 
as a common law obligation. Seivall-y. 
Franklin, 2 P. 493. Cummins v. Gray, 
4 S. & P. 397. 

103. But the replevin bond required 
by the act of 1837, may be executed by 
a stranger, and may be payable to the 
plaintiff in the attachment. Kinney v. 
Mallory, 3 A. R. 626. 

104. An execution may issue on a re- 
plevin bond, taken under the act of 
1833, when returned forfeited, by the 
sheriff, and without an assignment by 
him to the plaintiff. Sliute v. McMahon, 
10 A. R. 76. 

105. If the bond, when returned for- 
feited, cannot have the effect of a judg- 
ment, an execution issued thereon, will 
be superseded. Danshy v. Johnson, 3 
A. R. 390. 

106. When a sheriff levies an attach- 
ment, takes a replevin bond, and afterward 
goes out of of&ce, his successor is not lia- 
ble to a motion for not returning the 
bond "forfeited," unless he is informed 
that it had been taken; even then he 
will be excused, if he makes the indorse- 
ment within a reasonable time. Magee 
V. Childers, 6 A. R. 196. 

107. Where personal property levied 
on by attachment, is replevied, as the 
law provides, it cannot be levied upon 
again until it is discharged from all lia- 
ibilityto satisfy the attachment, unless 
by virtue of process which has a para- 
mount lien. Eivesx. Wilborne,(!> A.'RAQ. 

108. The giving of a replevin bond, 
•does not discharge the lien of the attach- 
ment. M'Eae v. M'Lean, 3 P. 138. 
(Saffold, J., dissenting.) Rives v. Wil- 
horne, 6 A. R. 46. 

109.' It is a good plea therefore, to an 
action on the bond, against the sureties, 
that the sheriff was notified to retain the 
property replevied, in his custody, by 
■virtue of the proceedings under which it 



was attached, and that he notwithstand- 
ing, delivered it to a stranger, who 
eloigned it from the state. M'Bae v. 
M'Lean, 3 P. 138. 

110. Under the attachment laws of 
1807, and 1812, scire facias is the proper 
remedy on a replevin bond. Sartin v. 
Weir, 3 S. & P. 421. 

111. In such a proceeding, a discon- 
tinuance may be entered against the ob- 
ligors not served with process, and judg- 
ment rendei-ed against the parties served. 
lb. 

112. A plea to a proceeding on such 
a bond, that the property replevied, did 
not belong to the defendant in attach- 
ment, but to another person who had 
seized it, is bad. lb. 



VII. Irregularities ix Attachment 
Causes, and how taken advantage 
of, waived, or remedied. 

113. When an attachment is sued out 
upon a debt not due, the declaration 
should not be filed until the maturity of 
the contract. Beckwith v. Baldwin, 12 
A. R. 720. 

114. Such a cause is continued by op- 
eration of law, without any formal order 
of continuance, until the maturity of the 
debt. Allen v. Claunch, 7 A. R. 788. 

115. A motion to dissolve an attach- 
ment, on the ground that the cause- of 
action does not warrant that process, can 
properly be entertained when a new or 
amended declaration is filed, setting out 
a cause of action not within the statute, if 
the motion is made within the time fol* 
pleading in abatement. Hazard v. Jor- 
dan, 12 A. R. 180. 

116. When an attachment is sued out 
for a cause of action not warranted by 
the attachment law, the defect cannot 
be reached by a demurrer to the decla- 
ration ; but a rule on the plaintiff, to 
show cause why his attachment should 
not be dissolved, would be the correct 
mode of taking advantage of it. Jordan 
V. Hazard, 10 A. R. 221. Cain v. Ma- 
ther, 3 P. 224. 

117. A plea in abatement of an attach- 
ment, merely denying the defendant's 
right to the property levied on, is bad on 
demurrer: The return is matter of rec- 
ord, and cannot be contradicted by an 



ATTACHMENT. 



103 



allegation that it is false. King v. BucTcs, 
11 A. R. 217. 

118. Defects in the bond and affidavit 
made on suing out an attachment, must 
be pleaded in abatement ; otherwise they 
are not available on error. Burt v. Par- 
ish, 9 A. R. 211. 

119. The want of a bond and affidavit, 
must be. pleaded in abatement, even 
though the attachment is taken out 
against a non-resident. Jones v. Pope, 6 
A. R. 154. 

120. Where an attachment is improp- 
erly sued out, in favor of a resident citi- 
zen, against the property of a deceased 
non-resident debtor, it must be abated 
by plea, and cannot be taken advantage 
of after judgment by default. Loomis v. 
Allen, 7 A. R. 706. 

121. An objection, that the affidavit 
on which an attachment- issues, has not 
been verified and subscribed, or that the 
justice before whom it purports to have 

» been made, is not such in fact, must be 
presented by plea in abatement. Lowrij 
V. Stowe, 7 P. 483. 

122. A person who commences a suit 
by attachment, as a non-resident, need 
not state the fact of his non-residence 
in the affidavit : If he is not a non-resi- 
dent, and no sufficient bond or affidavit 
is made, the attachment may be abated 
by plea. Jackson v. Stanley, 2 A. R. 
32S. Calhoun v. Cozzens, 3 A. R. 21. 

123. The bond in such a case, need 
not show that the sureties reside within 
the state ; if such is not the fact, the pro- 
ceedings may be abated. Jackson v. 
Stanley, 2 A.R. 326. 

124. In an attachment by one non- 
resident, against another, the affidavit 
should show, that the defendant has not 
sufficient property within the state of his 

) residence, to satisfy the debt, within the 
belief, as well as within the knowledge 
of the person making the affidavit ; and 
the omission to show this, is sufficient, 
if pleaded, to abate the attachment. 
Cohh V. Force, 6 A. R. 468. Cohh v. 
Miller, 9 A. R. 499. 

125. Whether in any case, where the 
process is by attachment, advantage of 
defects in it can be taken, if no plea in 
abatement has been interposed, quwre. 
Thompson v. Hair, 7 A. R. 313. 

126. Neither defects in a writ of at- 
tachment, nor a variance between the 
writ and declaration, can be reached by 
demurrer : this court, therefore, will not 



look beyond the declaration, to ascertain 
whether the court below had jurisdiction 
of the amount sued for. Roberts v. 
Burke, 6 A. R. 348. 

127. It is not necessary in an attach- 
ment cause, to carry into the declara- 
tion, any of the recitals contained in the 
bond and affidavit. Reynolds v. Bell, 3 
A. R. 57. 

128. Where an attachment issues on 
an affidavit of a money demand, a decla- 
ration in trover, ' against a defendant 
who does not appear, cannot be allowed ; 
but if the defendant appear and plead to 
the merits, he cannot review the irregu- 
larity after j udgment. Marshall v. White, 
8 P. 551. 

\ 129. A declaration in an attachment 
cause, w^hich alledges, that the defend- 
ant is in Custody, instead of stating that 
his estate was attached, is good. Miller 
V. McMillan, 4 A. R. 527. 

130. An appearance in an attachment 
cause, is as much a waiver of defects, as 
it would be in a suit commenced in the 
usual mode; Burroughs v. Wright, 3 A. 
R. 43. 

131. An attachment materially vari- 
ant from the affidavit, must be quashed. 
Woodley v. Shirley, Minor, 14. (But 
see Alford v. Johnson, 9 P. 320, where it 
is said the writ may be amended, so as 
to conform to the affidavit.) 

132. It is not necessary to indorse 
the cause of action on a writ of attach- 
ment, JMwry V. Stoioe, 7 P. 483. 

133. The form of a writ of attach- 
ment, issued by a justice, does not re- 
quire his sgal ; a seal immediately after 
his signature, is sufficient. Ih. 

134. Objections to the sufficiency of 
an attachment bond, must be made in 

the court below, so that the plaintiff g^, 
may execute one that is sufficient. Conk- ~ 
lin V. Harris, 5 A. R. 213. Fleming v. 
Burge, 6 A. R. 373. Scott v. Macy, 3 A. 
R. 250. Loioe v. Derrick, 9 P. 415.- 
Loiory v. Stowe, 7 P. 483. P. c& M. Bank 
V. Andrews, 8 P. 404. Alford v. John- 
son, 9 P. 320. _ ' 

135. There is no difference between a 
void bond, and one that is defective ; in 
either case it is the duty of the court, ta 
permit the plaintiff to substitute one 
that is sufficient. Jackson v. Stanley, 2 
A. R. 326. 

136. If the plaintiff, when required by 
the court to perfect the bond, decline 
doing so, the attachment may be quash- 



104 



ATTACHMENT. 



ed. Loivry v. Sfowe, 7 P. 483. Alforcl 
V. Johnson, 9 P. 320. P. & M. Bank v. 
Andreios, 8 P. 404 _ 

137. Upon a motion to quash an at- 
tachment, no intendment can be made, 
prejudicial to the plaintiiF; but every 
thing stated in the proceedings must be 
taken as true. Calhoun v. Cuzzens, 3 A. 
K. 21. 

138. Although an affidavit for an at- 
tachment, state, that the defendant re- 
sides out of the state, and has not suffi- 
cient property in the state of his resi- 
dence, to satisfy the debt sued for ; and 
although the bond be indorsed with the 
approval of the judge of the county 
court, as required by the statute author- 
izing one non-resident, to sue out an at- 
tachment against another, upon such an 
affidavit, still it will not be inferred, on 
a motion to quash, that the plaintiff is a 
non-resident ; but the presumption Avill 
be, that he is a resident, and stated more 
in the affidavit than was necessary ; and, 
that the approval of the bond by the 
judge of the county court, A^'tis an act of 
supererogation. lb. 

139. The refusal to quash an attach- 
ment, is not revisable on error. Ellison 
V. Mounts, 12 A. li. 472. Massey v. 
Walker, 8 A. K. 167. Reynolds v. Bell, 
3 A. K. 57. 

140. A motion to quash an attach- 
ment, however, may properly be enter- 
tained, and though addressed to the dis- 
cretion of the court, if improperly grant- 
ed, is revisable on error. Reipiolds v. 
Bell, 3 A. R. 57. 

141. A privy in interest^, in attach- 
ment, may point out defects in the pro- 
ceedings, -and submit a motion to quash. 
P. & M. Bank v. Andreivs, 8 P. 404. 

142. Semble: The practice of permit- 
ting persons as amici curiae, to move to 
quash attachments, has prevailed too 
long to be held irregular. lb. 

143. An attachment sued out on the 
ground that the defendant absconds, 
cannot be abated by a plea, that the de- 
fendant is a citizen of another state, and 
never was in this state with the intention 
of residing here. Middlebrook v. Ames, 
5 S. & P. 158. 

144. A defendant in attachment, can- 
not controvert the truth of the affidavit 
on which the attachment issued. lb. 
(Overruling Brown v. Massey, 3 S. 226.) 

145. Slight, or formal defects in at- 
tiichmcnt causes, Avill be considered as 



amended. Pearsoll v. Middlebrook, 2 S. 

6 P. 406. 

146. The sureties in a bond for an at- 
tachment, may prove, that an affidavit 
was made, and is lost, so -that another 
may be substituted. Simpson, ex parte, 

7 A. R. 842. 



VIII. Of the Judgment and Exectj- 
tion; and herein of the sale of 
perishable property before judg- 
MENT. 

147. Where a judgment is obtained in 
a suit commenced by attachment, the 
plaintiff may either take out a venditioni 
exponas for the sale of the property at- 
tached, or sue out an ordinary^ fa: In 
the latter case, it would be proper for 
the clerk to indorse on the writ, a de- 
scription of the property a,ttached, and 
the names of the persons by whom it 
was replevied, that the sheriff might de- 
mand the property seized by the attach- 
ment, and if not delivered, return the 
bond forfeited: If the property is not de- 
livered, or is insufficient to satisfy the 
judgment, it would be the duty of the 
sheriff to levy on other property. Garey 
v. Hines, 8 A. R. 837. 

148. Where an attachment issues 
against the j^roperty of a deceased non- 
resident debtor, the proper judgment is 
a condemnation of the property levied 
on, to the satisfaction of the debt: But 
if the j^operty has been replevied by the 
administrator, then a judgment should 
be rendered against him' personally, to 
be discharged by the delivery of the 
property to the sheriff; and if the judg- 
ment is de bonis propriis, and not in the 
alternative, it will be amended in this 
court, at the costs of the plaintiff in er- 
ror. Looniis V. Allen, 7 A. R. 706. 

149. When there is no levy of an at- 
tachment, but a garnishee is summoned, 
who vouches one to whom the debtor 
has assigned the demand before service, 
and such proceedings are had, that all 
connected with the garnishment arc dis- 
charged, a judgment rendered by default 
against the debtor is irregular, and will 
be reversed, on error. Edioards v. Wick- 
liffe, 7 A. R. 715. 

150. Where the service of an attach- 
ment, is made only by the summons of 
a garnishee, it is error to render judg- 



ATTACHMENT. 



105 



menfc against the debtor, until the gar- 
nishee has admitted a debt due, or until 
a final judgment has been entered for 
his default. Burt v. Parish, 9 A. R. 211. 

151. When an interlocutory judgment 
by default, has been iri-egularly taken 
in an attachment suit against non-resi- 
dent defendants, if they afterward ap- 
pear and plead to issue, the irregularity 
will be considered as Avaived, and is not 
a suf&cient reason for the reversal of a 
judgment obtained against them on ver- 
dict. Corley v. Shropshire, 2 A. R. 60. 

152. A judgment cannot be rendered 
before the maturity of the demand, al- 
though the statute authorizes an attach- 
ment to issue in certain cases, before the 
debt is due. Ware v. Todd, 1 A. R. 199. 

153. The proper course is, to stop 
proceedings until the maturity of the 
debt, and then proceed to judgment. lb. 

154. Where a sheriff collects money 
by the sale of perishable property, lev- 
ied on by an attachment, under an order 
made pending the cause, if the attach- 
ment is returnable to the circuit or 
county court, the clerk of the cpurt to 
which it is returnable, and not the ofli- 
cer making the order, is authorized to 
institute a proceeding by notice, under 
the attachment law of 1-833, against the 
sheriff and his suretie^ for not paying 
the money over. Ebid v. Bibb, 5 A. R. 
"281. 

155 . When a j udgment is not rendered 
upon an attachment against a non-resi- 
dent, until after six months from the 
time the attachment issued, no publica- 
tion or notice is necessary. Fleming v. 
Burgef 6 A. R. 473. Bickerstqf v. Pat- 
terson, 8 P. 245. Murray v. Cone, 8 P. 
250. Miller v. McMillan, 4 A. R. 527. 

156. In an attachment against a non- 
resident, there must be an order of the 
court limiting the time for the defendant 
to appear, put in bail, and plead; and 
notice for publication must issue, or its 
omission he accounted for. Harris v. 
Clapp, Minor, 328. (Changed by stat- 
ute^ Clay's Dig. 58, sec. 15.) 

157. It is not a valid objection to a 
judgment by default, against a defend- 
ant in attachment, that a garnishee in 
the cause, by his plea, claimed the prop- 

^ erty levied on. lb. 

158. Where the term of tlie court is 
limited to six days, j udgment Ijy defaailt 
for Avant of a plea, taken at the return 
term of the court, is irregular; and there 

1—14 



is no distinction between attachments 
and ordinary actions, except in the case 
of non-resident defendants. Napper v. 
Koland, 9 P. 218. 

159. A judgment in favor of the plain- 
tiff", in a cause in which an ancillary at- 
tachment has been issued, will be con- 
sidered as having been rendered in the 
suit, and not on the assistant process. 
Dansby v. Johnson, 3 A. R. 390. 



IX. Of Ancillary Attachments. 

100. It is competent for the plaintiff, 
iinder the act of 1837, to sue out an an- 
cillary attachment, not only where the 
suit is commenced by summons or capi- 
as ad respondendum, but where an orig- 
inal attachment is the 'leading process in 
the cause ; yet it would perhaps be com- 
petent to quash the ancillary attach- 
ment, or levy, if the estate of the defend- 
ant levied on under the original, was un- 
questionably amplcWio satisfy the plain- 
tiff's demand. Brmvn v. Isbell, 11 A. R. 
1009. 

161. It is competent to issue an ancil- 
lary attachment, under the act of 1837, 
"when a suit shall be commenced in any 
circuit or county court," although the 
leading process is not executed; and 
the failure to serve the writ upon the 
defendant, will not aljate the attachment, 
or impair its efficiency, but the plaintiff 
may proceed to judgment as in other 
cases. Morgan v. Lamar, 9 A. R. 231. 

102. An ancillary attachment may be 
sued out, although the party has been 
previously arrested on bail jirocess is- 
sued in the same cause. Massey v. 
Walker, 8 A. R. 167. 

103. When an ancillary attachment is 
sued out, in aid of a suit, the grounds 
upon which it issued, cannot be travers- 
ed, or put in issue by the defendant. 
Jones v. Dornell, 9 A. R. 095. 

104. Where an attachment ancillary 
to an action brought in the usual man- 

^^ner, is improperly dismissed, a inan- 
';ck(.nius is the appropriate remedy in or- 
der to its reinstatement ; and a rule will 
be awarded requiring the judge of the 
proper court, to show cause why a per- 
emptory writ should not issue, although 
notice has not been given that the mo- 
tion will |jc made. Boraim \. Da Costa, 



106 



ATTACHMENT. 



4 A. R. 393. Edma v. Rigeaud, 3 A. 
E. 363. 

165. A writ of error will not lie to re- 
vise an order quashing an attachment 
issued under the act of 1887, as ancillary 
to an action pending at law ; and though 
the plaintiff" recovers a judgment in the 
principal case, and sues out a writ of er- 
ror to review it, the court will not exam- 
ine the order on the attachment. Eslaca 
V. Bigeaud, 3 A. E. 363. 

166. The action of the primary court, 
in quashing, or refusing to quash, an at- 
tachment, sued out as ancillary to the 
writ, cannot be inquired into upon a 
writ of error to the j udgmeut : Mandamus 
is the proper remedy. Hudson v. Daily, 
13 A. E. 722. Gee v. The Alabama L. 
I. & T. Co., 13 A. E. 579. 

167. Where an attachment is sued out 
as auxiliary to a suit commenced in the 
ordinary mode, a mistake in the writ of 
attachment, of the time when the court 
is held, in which the original suit is 
pending, is amendable. Scott v. Macy, 3 
A. E. 250. 

168. The eighthiection of the attach- 
ment act of 1837, aoes not warrant the 
suing out of an ancillary attachment in 
the action of detinue : The process is au- 
thorized in such actions only, as can be 
commeiiced by original attachment. Le 
Baron v. James, 4 A. E. 687. 

169. An administrator may plead the 
insolvency of the estate committed to his 
charge, in abatement of a suit com- 
menced by capias in the lifetime of the 
intestate, in which an attachment also 
was sued out as an auxiliary process, 
and levied on real and personal estate ; 
and the lien of such attachment is 
only an inchoate right, dependent on the 
judgment, which not being allowed, the 
lien is gone. Hale v. Cimimings, 3 A. 
E. 398. 

170. An attachment sued out under 
the act of 1837, as auxiliary to a pend- 
ing suit, need not alledge the existence 
of such suit; if no such suit is pending, 
the attachment may be defeated by plea 
in abatement. Hounsliell v. Phares, 1 
A. E. 580. 

171. The omission of the sheriff" to re- 
turn an ancillary attachment which he 
has levied, until after judgment upon it 
is rendered, will not affect the lien of 
the plaintiff in attacliment, he not being 
privy to, or consenting to the act of the 
sheriff: The return when made, relates 



back to the time of the levy, lieed v» 
Perkins, 14 A. E. 231. 



X. Judicial Attachments. 

172. In proceedings by judicial at- 
tachment, the record must show, that 
the defendant was an inhalaitant of the 
state, when the original writ was issued. 
Wyatt V. Camphdl, Minor, 390. Evans 
V. Saltmarsli, 1 S. 43. Blair v. Cleve- 
land, 1 S. 421. 

173. That fact may be shown by affi- 
davit, in term time or vacation ; but if it 
does not appear, it is error, though the 
defendant has entered an appearance, 
Blair v. Cleveland, 1 S. 421. 

174. The return of the sheriff, to a ju- 
dicial attachment against three defend- 
ants, that by virtue of the writ, he had 
levied on certain slaves, and that the 
same were replevied by the bond of the 
defendant, is conclusive to show that the 
slaves were the property of all the de- 
fendants. Kirlisey v. Bates, 1 A. E. 303. 



XI. Attachments for Eent. 

175. The act of 30th January, 1840, 
for the collection of rents in the city of 
Mobile, does not differ from the general 
attachment law, as it, in effect, merely 
authorizes a suit to be commenced by 
attachment, for the recovery of rent in 
the city of Mobile, which is to be gov- 
erned by the same rules, as other suits 
commenced by attachment. NbrtJi v. 
Eslava, 12 A. E. 240. (Oven-uling 
Dumes V. McLosky, 5 A. E. 239, on this 
point.) 

176. The act of 17th January, 1834, 
authorizing a distress for rent in the city 
of Mobile, does not justify the rendition 
of a judgment against the tenant, but 
merely a condemnation of the goods dis- 
trained. Dumes v. McLoshey, 5 A. E. 
239. (Overruled in North v. Eslava, 12 
A.E^240.) 

177. Under that act, an attachment 
will not lie against the representative of 
the tenant, but must be prosecuted 
against him individually. Ih. 

178. A landlord, upon making the af- 
fidavit prescribed by the 2d section of 
the act of 1843, is entitled to the process 



f >M»- «|».',.^». 



ATTACHMENT. 



lOT 



of attachment; an-d it Is not necessary 
that it should be stated, that the attach- 
ment is not sued out for the purpose of 
vexing or harassing the defendant. Haio- 
kins V. Gill, 6 A. K. 620. 

179. The design of the act was, to 
make the landlord's lien on the crop, 
more effectual ; the attachment therefore, 
is properly issued against the crop 
grown on the land. Ih. 

180. An action for money had and re- 
ceived, cannot be maintained by a land- 
lord, against a purchaser from the ten- 
ant, of the crop grown on the rented 
land ; but he may maintain attachment, 
under the statute, if the purchaser had 
knowledge of the lien of the landlord. 
Whether he might not also maintain an 
action on the case, qucere. Diilany v. 
Dickerson, 12 A. R. GOl. 



XIL Liabilities for suing out At- 
tachments WRONGFULLY. 

181. That a debtor " was about to dis- 
pose of his property fraudulently, to 
avoid the payment of the debt," does 
not authorize the creditor to sue out an 
original attachment, commanding its 
seizure. Reynolds \, Culbreaih, 14 A. 
R. 581. (Changed by statute. Acts 
1849-'50, p. 44, sec. 1.) 

182. When an attachment is wrong- 
fully and maliciously sued out, the de- 
fendant is not confined to the remedy 
afforded by the bond, but may sue in 
case, for the injui-y he has sustained, be- 
fore the attachment suit is determined. 
Domiell V. Jones, 13 A. R. 490. 

183. The fact that a defendant sued 
in attachment, is insolvent, is proper to 
be given in evidence, as a circumstance 
to be considered by the jury, in ascer- 
taining the damages, but is no answer 
to the action, and therefore a plea rely- 
ing on it as such, is bad on demurrer. 
Ih. 

184. The damages which a mercantile 
firm, composed of three individuals, can 
recover, in an action for wrongfully and 
maliciously suing out an attachment, 
must be for- an injury done to their joint 
business, and must not only be the* nat- 
ural, proximate, legal result, or conse- 
quence of the wrongful act, but mustaf- 

, j^ feet the joint busuiess, or trade of the 
* partnership; Injury to the private feel- 



ings of the individual partners, is not a 
proper subject of inquiry. Ih. 

185. Proof of special damage, arising 
from the loss of reputation, credit, or 
business, or the withdrawful of particu- 
lar customers, cannot be made, unless 
such special damage is averred in the 
declaration, Ih. 

186. A statement by a witness, " that 
from his acquaintance with the business 
of the plaintiffs, the issuing and levying 
of the attachment, had the effect of de-' 
stroying their credit and standing as 
merchants, and preventing them from 
carrying on their business, and forcing 
them into an assignment,^' is not admis- 
sible as evidence, being the opinion of 
the witness, or his deduction from facts, 
and not a statement of the facts them- 
selves. Ih^ 

187. A loss accruing from a forced 
sale of goods, under an assignment, is 
not a natural, or proximate consequence 
of the issue and levy of an attachment 
by the creditor, previous to the making 
of the assignment by the debtor. Ih. 

188. Under the general averments of 

the declaration, evidence is admissible ^ 
to prove the general loss of credit, and '*^ 
mercantile character, but not to prove 
the loss of any particular customer. Ih. 

189. In an action of debt on an at- 
tachment bond, the declaration must 
show, that the process was wrongfully 
or vexatiously sued out by the plaintiff 
in the attachment, although it was sued 
out on the affidavit of an agent : A dec- 
laration is bad, which asserts that the 
attachment was wrongfully or vexa- 
tiously sued out by the obligors upon 
the bonid. McCullough v. Walton, 11 A. 
R. 492. Flanagan y. Gilclirist, 8 A. R, 
620. 

190. If an attachment is wrongfully 
sued out, the plaintiff is responsible to 
the extent of the actual injury, but if 
vexatiously sued out, the case is one for 
vindictive damages, only in the event 
tliat the plaintiff has wantonly or mali- 
ciously resorted to the process. McCul- 
lough V. Walton, 11 A. R. 492. 

.'- 191. The term " wrong-ful,'^ as used 
in the statute, means, resorting to the 
process, withovit sufficient ground ; if, 
therefore, a just ground exists, when an 
attacliment is sued out, and the attach- 
ment is abated, for a defect in the affida- 
vit, the defendant in the attachment, 
cannot recover the damages actually 



108 



ATTACHMENT. 



sustained, in an action upon the bond. 
Sharpe v. Hunter, IG A. E. 765. 

192. Upon a bond executed to several, 
with condition to pay them such costs 
and damages as they may sustain by the 
wrongful suing out of an attachment, a 
joint action may be inaintained, though 
the attachment is levied on the separate 
property of each. Boyd v. Martin, 10 
A. K. 700. 
A 193. It is no justification that* one su- 
( ing out an attachment, has good reason 
to believe the fact to be as he states it in 
his affidavit : If the causes alledged do 
not exist, he is answerable to the de- 
fendant in attachment, for all the injury 
he sustains by the suing out of the at- 
tachment. Alexander v. Hutchison, 9 A. 
E. 825. 

194. It is no answer to a declaration 
in case, for AvrongfuUy and vexatiously 
suing out an attachment, that the de- 
fendant had good reason to believe, and 
verily did believe, that the plaintiffs 
were about to dispose of their property 
fraudulently, with the intent to avoid 
the payment of the debt sued for; and 
therefore a plea to this effect, setting out 
the facts upon which such l)elief was 
predicated, is bad on demurrer. Donnell 
V. Jones, 13 A. E. 490. • 

195. In an action''^ for maliciously 
suing out an attachment, it is not com- 
petent for the plaintiff to show, that most 
of the debt was due for usurious inter- 
est, when the judgment in the attach- 
ment suit is for the whole sum claimed : 
Such judgment is conclusive of probable 
cause, until reversed, or set aside, or its 
validity is impaired by the judgment of 
some competent tribunal. Jones v. Kirk- 
seij, 10 A. E. 839.' 

196. One who, as administrator, im- 
propei'ly sues out an attachment, is liable 
to respond in damages personally : He 
cannot by his tortious conduct, subject 
the estate he represents, to an action for 
damages. Gilmer v. Wier, 8 A. E. 72. 

197. In debt upon an attachment 
bond, the declaration should show, that 
the attachment was wrongfully or vexa- 
tiously sued out, and that thereby, the 
plaintiff has sustained damages. Flan- 
agan V. Gilchrist, 8 A. E. 620. 

198. An action on the case may be 
sustained either for wrongfully or vexa- 
tiously suing out an attachment; and 
the existence of malice is important on- 
ly in conncctitin Avitli the amount of 



damages. Kirksey v. Jones, 7 A. E. 
6^2. 

199. Where an attachment is wrong- 
fully sued out, the defendant, whose 
goods are attached, may recover the 
damages actually sustained by reason 
of the levy; and if the process is vexa- 
tious, as well as wrongful, he may recov- 
er as in ' an action for a malicious pros- 
ecution, lb. 

200. An averment that the attach- 
ment was sued out without any reasona- 
ble or probable cause, and for the pur- 
pose of vexing or harassing the party, 
is equivalent to the assertion, that it was 
wrongfully and vexatiously sued out. Ih. 

201. There is no distinction, as to the 
time when a suit may be instituted for 
the abuse of the process, between origin- 
al and ancillary attachments. Ih. 

202. An attorney at law, intrusted 
with a note for collection by suit, is au- 
thorized, to sue out the process of attach- 
ment ; and his client is liable for the ac- 
tual damages sustained, if the process is 
wrongfully sued out, although he may 
have instructed his attornej to use prop- 
er means only. lb. 

203. The client is only liable to the 
same extent, if the attorney acts mali- <f 
ciously, as well as wrongfully. lb. * 

204. It is a full defense to an action 
for wrongfully and vexatiously suing out 
process of attachment, if any one of the 
causes which warrant that process, actu- 
ally existed when it was sued out, al- 
though another and different cause is set 
out in the affidavit. lb. 

205. In an action for wrongfully and 
maliciously suing out an attachment 
against the plaintiff's estate, it is not al- 
lowable for him to prove, that by common 
reputation in the neighborhood in which 
the defendant and himself resided, it 
was supposed he had gone to an adja- 
cent state on a visit of business or pleas- 
ure. Pills V. Burroughs, 6 A. E. 733. 

206. Proof of general reputation in the 
neighborhood, that the plaintiff was 
about leaving home for Arkansas, on a 
visit, is also inadmissible. Havis v. 
Taylor, 13 A. E. 324. 

207. In a suit for wrongfully and vex- 
atiously suing out an attachment, a dec- 
laration by the plaintiff about a week 
before the attachment issued, of his in- 
tention to leave the state temporarily, 
not made in the presence of the defend- 
ant, or shown to have come to his knowl- 



ATTxiCIIMENT. 



109 



edge previous to the issuauce" of tlie at- 
tachment, is not admissible iu evi- 
dence, lb. 

208. Declarations of the plaintiff,, af- 
ter the attachment issued, of his iiiten- 
tion in leaving the state, are not compe- 
tent, lb. 

209. But what a party said upon leav- 
ing home, or immediately previous, is 
admissible evidence in his favor as a 
part of the res gestce, on the trial of an 
action for wrongfully and malicioTisly 
suing out an attachment against him, in 
his absence. Fitis v. Burrouglis, 6 A. 

1 E. 733. 

■<>■/* 210. The absence of a debtor from the 
state, does not subject his property to at- 
tachment, upon the allegation, that he 
absconds or secretes himself; and his 
neglect to inform a creditor of his in- 
tended absence, does not, per se, author- 
ize the latter to resort to that extraor- 
dinary remedy. lb. / 

211. An action of covenant may be 
maintained on an attachment bond. 
Bill v. Bushing, 4 A. E. 212. 

212. And if the damages alledged to 
have been sustained, exceed the penalty 
of the bond, it is proper to assign the non- 
payment of the penalty; if they do not 
aniotmt to as large a sum as the penalty, 
then the breach will be the non-pajaiient 
the damages actually sustained. lb. 

213. Actions upon attachment bonds 
are governed in all respects, by the 
rules applicable to actions on the case, 
for wrongfully suing out attachments ; 
but the recovery never can exceed the 
penalty of the bond. lb. 

214. The defendant in an attach- 
ment, may have his action on the bond, 
without having ascertained his damages, 
by a direct action on the case against 
the plaintiff in the attachment. Hern- 
don V. Forney, 4 A. E. 243. 

215. In an action for wrongfully 
suing out an attachment, it is not neces- 
sary to prove malice. Wilson v. Outlaiv, 
Minor, 367. 

216. In an action for maliciously and 
wrongfully suing out an attachment, an 
omission to aver in the declaration, the 
termination of the attachment suit, is 
cured by verdict. Rea v. Lewis, Mi- 
nor, 382. 

217. In an action ■ for vexatiously su- 
ing out an attachment, it is competent 
for the defendant to prove, in mitiga- 
tion of damages, that the plaintiff was 



indebted toUiiui in Georgia, and that he 
ran away from that state with his prop- 
erty, to avoid the payment of his debts. 
Melton Y. Troiitman, 15 A. E, 535. 



XIII. Proceedings against Garnishees. 

(a) Kcdiire of tlie proceeding ; when a gar- 
- nislwient may he issued, ctgcdnst 
icltom, and oftlie affidavit and of- 
ficer's return. 

218. A summons of garnishment is 
not in the nature of an equitable pro- 
ceeding, but a legal remedy, and to be 
so treated. TJiomas v. Hopper, 5 A. 
E. 442. 

219. A proceeding by garnishment, 
is the institution of a suit by the at- 
taching creditor, against the debtor of 
his deb'tor, and is governed by the gen- 
eral rules Tipplicable to other suits adapt- 
ed to th-e relative position of the par- 
ties. Travis v. Tartt, 8 A. E. 574. Witli- 
erspoon v.. Barber, 3 S. 335. 

220. It seems, that a statute which 
merely gives a remedy at law, where it 
could previously have been available in 
equity only, or vice versa, may consis- 
tently with the constitution operate re- 
trospectively ; but whether the act of 
1841, which gives the remedy by gar- 
nishment, to the creditor of a corpora- 
tion, against a stockholder, where the 
latter stipiilates to pay his subscription 
for the stock, as calls are made for it, 
entitles the creditor to garnishee the 
stockholder for Avhat is due on the un- 
paid stock, where he has paid all the 
calls of the company, is an open ques- 
tion. FascJiallY. Whitsett, 11 A. E. 472. 

221. But under that statute, a stock- 
holder of a corporation is not liable to 
the process of garnishment, at the suit 
of its creditor, after the dissolution of 
the corporate body. lb. 

222. A garnishment may be sued out 
on a judgment, although no execution 
has been issued on it. Faulkner \. Chand- 
ler, 11 A. E. 725. 

223. It is unnecessary for the sheriff's 
return to state, that the garnishee was 
summoned in writing, as such is the 
necessary intendment of his return. 
Jhui V. Parish, 9 A. E. 211. 

224. Although the act of 1833, di- 
rects, that where an attachment shall 



110 



ATTACHMENT. 



be sei'ved on a siipposed debtor of the 
defendant, the garnishee shall be sum- 
moned in writing, yet it is not necessa- 
ry that a copy of the Vi^ritten summons 
should be returned with the attachment ; 
but a return by an officer, that he had 
summoned a third person as a garni- 
shee, will warrant the inference, that 
the duty was pea-formed according to 
law. Loivry v. Clements, 9 A. K. 422. 

225. If a judgment can be had against 
a stockholder, for a debt due by a cor- 
poration, under the act of 1841, the affi- 
davit, required by that act, must be 
made previous to suing out garnishee 
process. Whether the act applies to the 
stockholders of a corporation which has 
been dissolved by an act ecpiivalent to a 
surrender of its privileges, or whose 
franchise has been lost by non-user, 
qucere. Cooper v. FredericJc, 9 A. R. 739. 
(This qucere is settled in the negative, 
in Pasclall v. WMtsett, 11 A. E. 472.) 

226. A sheriif cannot issue a sum- 
mons to a debtor of a defendant in exe- 
cution, to answer as garnishee ; the pro- 
cess must be issued by the clerk of the 
court in which the judgment was ren- 
dered. Clark V. Gaither, 6 A. R. 139. 

227. An affidavit is necessary to sup- 
port a garnishment upon a judgment. lb. 

228. An affidavit made for the pur- 
pose of obtaining a garnishment upon a 
judgment, will not be regarded on error, 
as conclusive that there was a judgment 
against the creditor of the garnishee ; 
the existence of such a judgment, must 
be shown by the record of the suit be- 
tween the original parties, or by its re- 
cital in the judgment against the garni- 
shee. Blair v. Eliodes, 5 A. E. 648. 

229. A garnishment to obtain satis- 
faction of a judgment, must issue out of 
the court in which the judgment was ren- 
dered ; a garnishment therefore, cannot 
issue out of the county court, when the 
judgment was rendered in the .orphans' 
-court. Hopper v. Todd, 8 A. E, 121. 

230. When one of a firm is garnisheed, 
the creditor must be considered as elect- 
ing to proceed against him solely; and on 
his answer admitting indebtedness of 
the firm, judgment may be rendered 
against him. Travis v. Tartt, 8 A. E. 
574. 

231. In such a case, if the garnishee 
dies, the _ proceedings may be revived 
against his personal representatives. lb. 

232. When a garnishee answers, that 



a certain person deceased, was indebted 
to the defendant in a particular sum, 
and that he is his executor, no judgment 
can be rendered against him in his char- 
acter of executor, until he is summoned 
to answer in that capacity, as it is the 
levy on the debt in the hands of the gar- 
nishee, which gives the court jurisdic- 
tion. Tillinghast v. Johnson, 5 A. E. 514. 

233. A surplus remaining in the hands 
of a register, after sa,tisfying a decree in 
chancery, for which a sale of property 
was made by him, may be attached, al- 
though the sale has not been confirmed. 
Langdon v. Loclcett, 6 A. E. 727. 

234. Money collected by an attornej'J'- 
may be attached. Mann v. Buford, 3 A. 
E. 312. 

235. So may money collected by a 
justice of the peace, in his official capac- 
ity. Clark V. Boggs, 6 A. E. 809. 

236; So may a surplus in the hands of 
a constable, after satisfying an execu- 
tion, under which he had sold the de- 
fendaiit's property. King v. Moore, 6 A. 
E. 160< 

237. But money collected by a sheriff, 
by execution, cannot be attached as the 
property of the plaintiff in the judgment. 
Zurcher v. Magee, 2 A. R. 353. 

238. An administrator cannot be sum- 
moned as a garnishee, within six months 
after the grant of letters.' Presnall v. Ma- 
bry, 3 P. 105. 

239. A garnishment may be levied on 
effects in the hands of a trustee of a 
deed, and if the deed is void in law, the 
money or effects will be subjected to the 
payment of the debt; but the trustee 
will be protected so far as he has bona 
fide disposed of the trust property under 
the deed, before service of the garnish- 
ment, and may retain for a debt due him- 
self. Hazard v. FranMin, 2 A. E. 349. 

240. The debtor of a corporation may 
be garnisheed by a creditor of the corpo- 
ration, under the general law of garnish- 
ment ; but no proceeding can be had un- 
der the act of 1841, to subject the debts 
of stockholders for stock due the compa- 
ny, on process of garnishment issued 
previous to the passage of that act. De 
Mony\. Johnston, 7 A. R. 51. Bingham 
V. Knshing, 5 A. R. 403. 

241. And when the stockholder of a 
corporation is, garnisheed as a debtor of 
the company, and answers that he has 
paid all the calls made by the president 
and directors upon him, he cannot be 



ATTxlCHMENT. 



Ill 



made responsible upon the residue of his 
stock, upon which no calls have been 
made, upon the general law of garnish- 
ment. Bingham y. Bushing, 5 A. II. 403. 

242. When an esecution upon a judg- 
ment is returned satisfied, process of 
garnishment cannot afterward be issued 
upon the judgment: If it should be, it 
may be quashed on motion by the gar- 
nishee. Thompson v. Wallace, 3 A. E. 
132. 

(b) Oftlie ansvjer, issue, and proceedings 
thereon. 

243. A coi-poration can answer proc- 
ess of garnishment only under its com- 
mon seal. The P. & Bank v. Leavens, 4 
A. E,. 753. The Branch Banh at Mobile 
v. Foe, 1 A. E. 396. 

244. The oath necessary to be made 
by the plaintiif before an issue can be 
formed on the answer of a garnishee, may 
be made by an attorney, agent, or fac- 
tor. Foster v. Walker, 2 A. E. 177. 

245. When a garnishee ansvrers, that 
he is indebted to the defendant by prom- 
issory notes, but that he was notified of 
their assignment, before the service of 
the summons, the oath of the plaintiff's 
attorney, that he believes the assignment 
was made stibsequently to the summons, 
if at all, is sufiicient to put the answer 
in issue. Ih. 

246. The vn'itten answer of a garni- 
shee, is no part of the record, unless 
made so by bill of exceptions, or incor- 
porated into 'the judgment. Gaines v. 
Beirne, 3 A. E. 114. Saunders v. Camp, 
6 A. E. 73. 

247. Or identified by the minute en- 
try. Jones V. Howell, 16 A. E. 695. 

248. A judgment discharging a garni- 
shee, which does not set out his answer 
in extenso, but affirms that he has filed 
one which is the basis of the judgment, 
will authorize an appellate court; to re- 
gard an answer found in the transcript, 
as part of the record. Frice v. Thomp- 
son, 11 A. E. 875. 

249. Where the judgment recites, 
that the garnishee answered at a former 
term that he was indebted to the defend- 
ant, and a sworn answer is found in the 
transcript, it will be considered as a part 
of the record. Fortune v. The State Bank, 
4 A. E. 385. 

250. When a garnishee answers, and 
upon special interrogatories referring to 



the answer, answers again more fully, 
and is discharged upon the last answer, 
both answers are •to be considered as 
part of the record. Wicks v. The Branch 
Bank at Mobile, 12 A. E. 594. 

251. When two persons are garni- 
sheed as partners, the answer of one of 
them, in the name of the firm, will a,u- 
thorize a judgment against the other; 
and if the judgment is rendered against 
him as surviving partner, it will be pre- 
sumed that proof was made in the court 
below, of the death of the partner who 
answered. Gaines v. Beirne, 3 A. E. 114. 

252. The act of 1840, authorizing the 
mode of proceeding upon the answer of 
a garnishee, extends to garnishee proc- 
ess iipon judgr&ents, as well as origin- 
al and judicial attachments. McCaiiiY. 
Wood, 4 A. E. 258. 

253. The answer of a garnishee, can- 
not operate so as to aflect the rights of 
others, by the fiction of filing it at one 
term, and indorsing upon it, that it is to 
be considered as filed at a previous 
term. Foster v. White, 9 P. 221. 

254. When a garnishee answers, that 
he has been notified of the assignment 
of the debt he owes the defendant, and 
his answer is contested, evidence that the 
defendant transferred the debt to de- 
fraud the plaintiff, is inadmissible. 
■Simpson v. Tippin, 5 S. & P. 208. 

255. The statute contemplates the per- 
sonal examination of a garnishee; the 
court is not bound therefore, to receive 
his written answer: If a personal exam- 
ination is waived, a written answer 
which is evasive, may be treated as a. 
nullity, and judgment nisi entered. 
Scales V. Swan, 9 P. 163. 

256. It is irregular to permit the de- 
fendant whose debtor is summoned as a 
garnishee, to contest the garnishee's an- 
swer, unless it is done at the term 
when the answer is filed, or unless an 
order is then made for that purpose.. 
Graves v. Cooper, 8 A. E. 811. 

257. The proper practice in such 
cases, is, for the defendant to deny the 
correctness of the answer by oath, and 
to file a suggestion of the nature of the 
garnishee's indebtedness, a^ in a decla- 
ration, to which, the garnishee may 
plead: The judgment, if against the 
garnishee, is one of condemnation to pay 
the plaintiff's demand. Ih. 

258. When the plaintifl' controverts 
the answer of the garnishee, or the right 



112 



ATTACHMENT. 



of a transferree to the debt, an issue 
will be sufficient, if it asserts, that the 
garnishee is indel)te€, or conceding the 
answer to be true, denies that the as- 
signee has any adverse rights. Moore v. 
Jones, 13 A. K. 296. 

259. The voluntary affidavit of a gar- 
nishee, taken before a justice, Avithout 
summons, doe^s not warrant judgment 
against the defendant in attachment. 
Lawrence v. Ware, 1 S. 33'. 

260. A garnishee's answer is to be ta- 
ken as true, and if -he append a deed 
thereto, it is to be considered as genu- 
ine, unless the answer is traversed. Rob- 
inson V. Rapelye, 2 S. 86. 

261. The answer of a gariushee must 
be contested at the term at which it is 
made, and if an issue be subsequently 
tendered, he may object to joining in it, 
unless he has expressly, or by implica- 
tion, waived his right to a discharge. 
McDaniel v. Reed, 12 A. K. 615. 

262. But if an affidavit of the incor- 
rectness of the answer, be made during 
the term at which the answer is filed, 
it is a sufficient initiation of the contest, 
and the issue may be made np after- 
ward. Marston v. Carr, 16 A. R. 325. 

263. The answer of the garnishee, and 
the papers in the cause, cannot be look- 
ed to as evidence on the trial of an issue 
between the transferree of a debt ad- 
mitted as due to the debtor, and the at- 
taching creditor. Scott v. Stallsworth, 
12 A. R. 25. . 

264. The answer of a stockholder in 
a corporation, that he had been inform- 
ed and believed the corporatiqn ceased 
to have "any legal existence" previous 
to the issuing of the garnishment,, is 
equivalent to the assertion that it was 
■dissolved; and if not negatived in the 
manner prescribed by the statute, will 
be taken to be true. Faschall v. Whit- 
sett, 11 A. R. 473. 

265. When one is summoned as a 
garnishee of joint judgment debtors, the 
service of the garnishment operates as 
the attachment of debts due to the de- 
fendants jointly, and severally; conse- 
quently, there is no error in propound- 
ing an issue, that the garnishee is indebt- 
ed to one of the joint debtors. Locket v. 
CTiW, 11 A. R. 640. 

266. If a garnishee indebted by note, 
have notice of its transfer, before he an- 
swers, he shuLihl state it, or if he ac- 
quires notice afterward, within time to 



amend his answer before judgment is 
rendered thereon, he should make it 
known to the court; and if he fails to 
do so, he cannot avail himself of the 
payment of a judgment rendered against 
him as a garnishee, in defense to an ac- 
tion brought by the assignee of the note. 
Crai/ton v. Clark, 11 A. R. 787. 

267. When the answer of a garnishee 
is controverted by the oath of the plain- 
tiff, the cause is at issue with the gar- 
nishee, and the proof, to charge him, is 
entirely independent of the answer; 
when tiiat is introduced by the plaintiff, 
it is governed by the same rules as any 
other admission by the garnishee. Myatt 
V. Lockliart, 9 A. R. 91. " 

268. The plaintiff cannot select a part 
of the answer on which to take issue; 
the only proper issue is one of indebted- 
ness, vel noni lb. 

269. Proof that the garnishees, as 
attorneys, had received money recovered 
in the name of the defendant in attach- 
ment, for the use of another, who, dis- 
claimed any interest, is sufficient to 
charge them ; and it afterward rests 
with them to show, that it legally, or 
equitably, is the money of some other 
person. lb. 

270. When two partners answer as 
garnishees, that one of them is the as- 
signee of the debt they owe the defend- 
ant, and their answer is contested, if 
the transfer is proved, no judgment can 
be rendered against either of the garni- 
shees ; and a notice should issue to the 
party to whom the debt "\^as assigned, as 
transferree. lb, 

111. On the trial of an issue between 
the garnishee and plaintiff in attach- 
ment, the fact of the indebtedness of the 
defendant to the plaintiff, is not involv- 
ed. Jones V. Pope. 6 A. R. 154. 

272. It is discretionary with a court, 
to permit a garnishee to amend his an- 
swer, even after an issvie has been tried 
between the plaintiff, and one to whom 
the debt attached, is supposed to be" 
transferred. Bvforcl v. Welborn, 6 A. R. 
818. 

273. On the trial of an issue upon the 
answer of a garnishee, who claims to 
hold certain effects of the defendant in 
executiou, by virtue of a conveyance 
from him, proof of what the defendant 
said, at and previous to the conveyance, 
is not admissible for tlic purpose of im- 
peaching the transaction as fraudulent, 



ATTACHMENT. 



113 



unless tlie declarations were made iu 
the presence of the garnishee. Jones y. 
Norris, 2 A. R. 520. 

274. Semble : Where the plaintiff in 
attachment moves for a judgment upon 
the Avritten answer filed by a garnishee, 
it will be inferred that he accepts the 
answer, and waives an examination in 
open court. Leigh v. Smith, 5 A. R. 
583. 

275. When a garnishee denies indebt- 
edness, and the plaintiff alledges that he 
is indebted, a sufficient issue is formed 
upon the answer. Thompson v. Allen, 
4 S. & P. 184. 

276. If such an issiie is found against 
the garnishee, he is liable to a judgment 
for costs. Ih. 

'2^11 . A joinder in issue between the 
plaintiff in execution, and the garnishee, 
is a waiver of a previous irregularity. 
Belts V. Brown, 5 A. R. 414. Hazard v. 
Franklin, 2 A. R. 349. Marston v. Carr, 
10 A. R. 325. ■ 

278. A note given for a partnership 
demand,, after a dissolution of the part- 
nership, to an administrator of a deceas- 
ed partner, who, in his lifetime, was du- 
ly authorized to settle the partnership 
accounts, and to Avhom they had been as- 
signed, extinguishes the debt before due 
by the maker to the firm ; and if he be 
garnisheed, as a debtor of the surviving 
piart^ier, his answer ought to be, that he 
is in no wise indebted to the surviving 
partner. LamJda v. Phillips, 9 P. 98. 

279. And if he answer otherwise, or 
if a liability be fixed on him, independ- 
ently of his answer, the administrator of 
the deceased partner cannot be preju- 
diced by the erroneous judgment. Ih. 

280. The statute contemplates an ex- 
amination of a garnishee in open court ; 
yet if the record recites, that the garni- 
shee had filed his answer, and that the 
plaintiff had consented to receive the 
same, an examination in court will be 
considered as waived. Btuhhlejield v. 
Bugertij, 1 A. R. 38. 

281. Proceedings against a garnishee 
in attachment, before a justice of the 
peace, when removed to the circuit court, 
are tried de novo, and the garnishee has 
a right to answer anew. Coleman v. 

Waters, 3 P. 381. 

282. Where process of garnishment 
issues against two executors, which is 
served only on one, who answers, a ver- 
dict and judgment cannot be rendered 

1—15 



against both. Temj v. Lindsay, 3 S. & 
P. 317. . . . - 

283. The principal in a note, was gar- 
nisheed as the debtor of a person not ap- 
parently connected with it, while the 
payee was prosecuting a suit against the 
surety; the attorney of the attaching 
creditor, induced the garnishee to put in 
an answer, which subjected her to ajudg- 
ment, by his assurance, that she should 
not be injured by it, and that he would 
protect her against the note on which 
the surety was sued; afterAvard, the 
amount of the note was collected of the 
surety, Avho recovered it from the garni- 
shee: Held, that the agreement of the 
attorney was binding upon his client, 
and that the judgment against the gar- 
nishee, should be enjoined. Hays v. 
O'Connell, 9 A. R. 488. 

284. Where a garnishee answered, 
that he had given his notes for $5,000 
to the defendant, for certain property 
which was incumlaered by a deed of trust 
for more than its value ; that the notes 
were to be paid in cash, or by discharg- 
ing the defendant's debts ; that before 
service of the summons he had paid some 
debts against the defendant, but could 
not state the amount; that the deed was 
still an incumbrance upon the property ; 
that he had received some property not 
included in the deed, but not of more 
value than would compensate him for 
claims he had against the defendant; 
and that he did not consider he owed 
him any thing, it was held, that the an- 
swer did not appear to be designedly 
evasive ; that if the plaintiff was dissat- 
isfied with it, he should have examined 
the garnishee, or controverted its truth; 
and that a judgment, discharging the 
garnishee upon tliQ answer, was proper. 
Price V. Thonmson, 11 A. R. 875. 

285. When a garnishee submits to an- 
swer, he is considered as continuing be- 
fore the court for the purpose of receiv- 
ing its judgment ; but if the cause is con- 
tinued generally Ijy the court as to him, 
he cannot, at the succeeding term, be 
compelled to join in an issue tendered to 
his answer, either by the plaintiff or de- 
fendant iu the principal suit; and if an 
issue, then tendered for tlie first time, is 
made up and found against him, the 
judgment thereon will be reversed upon 
error, if there is no admission upon the 
record, either express or implied, which 
takes from him the right of insisting up- 



114 



ATTACHMENT. 



on the irregularity. Loclcliart v. John- 
son, 9 A. R. 223. 

286. When a garnishee in attachment, 
answers, denying indebtedness to the 
defendant in attachment, an issue may 
"be made up, with the consent of the plain- 
tiff, to try the fact of such indebtedness, 
between the defendant in attachment, 
and the garnishee, upon the affidavit of 
the former, controverting the answer of 
•the latter. Twelves v. Loclano, 15 A. E. 

732. 

(c) When judgment may he rendered on 
the ansioer or not, and what prop- 
erty may he subjected in this pro- 
ceeding. 

287. A garnishment relates to the'pres- 
ent time, and requires the garnishee to 
answer what sum he is then indebted ; 
BO that if there be then no indebtedness, 
though there may be before the answer 
is made, the plaintiff is not entitled to a 
judgment. The Branch Bank at Mohile 
V. Poe, 1 A. R. 396. Hazard v. Frank- 
lin, 2 A. R. 349. 

288. And if the amount of the garni- 
shee's indebtedness is increased after 
garnishment issues, and before answer 
made, he is not liable to a judgment for 
the increased sum, but only for so much 
as was due when the process issued. 
The Branch Bank at Mohile v. Poe, 1 A. 
R. 396. 

289. Where a garnishee denies, that 
he is indebted to, or has in his hands 
any effects of, the debtor, and his an- 
swer is not controverted, he is entitled 
to be discharged ; and cannot be held to 
answer further, as to a probable, futiire 
indebtedness. Jones v. Hoioell, 16 A. 
E. 695. 

290. Where a garnishee admits that 
he is indebted to the defendant in exe- 
cution, in a sum of money to be paid at 
a future day, judgment may be render- 
ed against him, with a stay of execution 
until the maturity of the debt. Cottrcll 
V. Varnum, 5 A. R. 229. The Branch 
Bank at Mohile v. Poe, 1 A. R. 396. 

291. AVhen a garnishee states in his 
answer, that he has be6n informed of a 
transfer of the debt he owed the de- 
fendant, it is not material whether the 
information is true or false, unless an 
issue is formed on his answer, and 
found against him; if that is not done, 
he should be discharged. Foster v. Wal- 



ker, 2 A. R. 177. Wtcks v. The Branch 
Bank at Mohile, 12 A. R. 594. 

292. When a garnishee admits in- 
debtedness to a defendant in attachment, 
a judgment may be rendered against 
him, at a term subsequent to the rendi- 
tion of judgment against the defendant, 
without notice. Leigh v. Smith, 5 A. R. 
583. , 

293. A final judgment cannot be ren- 
dered against a garnishee in attachment, 
imtil after judgment is obtained against 
the defendant. Gaines v. Beirne, 3 A. 
R. 114. Leigh v. Smith, 5 A. R. 583. 
Loiory v. Clements, 9 A. R. 423. 

294. It is the duty of a garnishee, 
when notified of the transfer of a debt 
he owes the defendant, to state that fact 
in his answer, or a judgment upon his 
answer, will not protect him from liabili- 
ty to the assignee ; if he does so, no 
judgment can be rendered against him. 
Foster v. White, 9 P. 221. CoUyin v. 
Rich,^ P. 175. 

295. A judgment cannot be rendered 
against a garnishee, who states in his 
answer, that the defendant has surren- 
dered the debt in bankruptcy, and that 
it has been purchased by another person : 
If the answer is not true, it should be 
contested, or the garnishee discharged. 
' Wicks V. Tlie Brandt Bank at Mohile, 
12 A. R. 594. 

296. No judgment can be rendered 
against a garnishee, who states in his 
answer, that he has been notified of a 
transfer of the debt in respect to which 
he is garnisheed, unless an issue is form- 
ed on the answer and found against it. 
Forttine v. The State Bank, 4 A. R. 385. 
Kingx. Murphy,} S. 228. 

297. 'If a gaj-nishee indebted by note, 
have notice of its transfer, before he an- 
swers, he should state it; or if he ac- 
quires notice afterward, within time to 
amend his answer, before judgment is 
rendered thereon, he should make it 
known to the court ; and if he fails to do 
so, he cannot avail himself of the pay- 
ment of a judgment rendered against 
him as a garnishee, in defense to an ac- 
tion brought l:)y the assignee of the note. 
Crayton v. Clark, 11 A. R. 787. 

298. Where a garnishee admits in his 
answer, that he had made his promisso- 
ry note in favor of the defendant in the 
judgment, but states that he has been 
notified of its assignment, or that a suit 
has been brought on it, against him, in 



ATTACHMENT. 



115 



the name of certain persons styling 
themselves assignees, the plaintiff is not 
entitled to judgment, without showing 
that the payee is still the proprietor of 
the note. Stuhhlefield v. Hac/erty, 1 A. 
K 38. 

299. "Where a garnishee answered, 
" that he had in his possession a sum of 
money, belonging to the defendant in 
attachment, but which he was informed 
by the defendant was to be paid over to 
another person, but that person had giv- 
en no notice of any claim to it," a judg- 
ment against the garnishee, condemning 
the money, as the property of the de- 
fendant in the attachment, was held to 
be correct. Baker v. Moody, 1 A. R. 315. 

300. To authorize a judgment against 
a garnishee, on his answer, he must ad- 
mit an indebtedness in mone^^, to the de- 
fendant in the attachment, either due, or 
to ])ecome due. Minis v. Farke/t', 1 A. E,. 
421. Fresnully.Mahry,^ P. 105. Smith 
V. Chajpmmi, G P. 365. 

301. When the answer of a garnishee 
states facts, from which an indebtness to 
the defendant in execution in a specific 
sum, must be inferred, a judgment may 
be rendered against him, although his 
answer contains no distinct admission of 
indebtedness. Mann \. Buford, 3 A. R. 
312. 

302. "When one partner sells his inter- 
est to another for a certain sum, and di- 
rects it to' be paid to a third person who 
is present, and the purchaser replies 
that it is not material to him, whom he 
pays the money to, this, if supported by 
a valid consideration, is a sufficient trans- 
fer of the debt, and the purchaser is not 
liable as a garnishee of the vendor. 
Lovely v. Caldioell, 4 A. R. 684. 

303. A debt to be paid when certain 
services are rendered, may be assigned 
before the services are performed; and 
the assignee will hold it against an at- 
taching creditor of the assignor, if the 
assignment was before the attachment, 
and bona Jidc. Payne v. The Mayor of 
Mobile, 4 A. R. 333. 

304. The undivided interest of one of 
several distributees of an estate, in the 
hands of an administrator de bonis non, 
i,s not subject to the process of garnish- 
ment. Mock V. Kiny, 15 A. R. 66. 

305. A plaintiff in garnishment, as 
against the garnishee, is substituted 
merely to the rights of his debtor, and 
cannot subject a demand, on which the 



debtor himself, if suing, would not be 
entitled to recover: The garnishee may, 
therefore, avail himself of a failure of 
consideration in the contract by which 
he was to become debtor to the defend- 
ant. McGehee v. Walke, 15 A. R. 183. 

306. Semble : In proceedings by gar- 
nishee process, such demands only can 
be condemned, as would entitle the debt- 
or to recover in debt, or indebitatus as- 
sumpsit. Walke V. McGehee, 11 A. R. 
273. 

307. When a garnishee answers, that 
he holds funds of the defendant, to which 
the latter is entitled, for services render- 
ed the state, can any judgment be ren- 
dered? WicJvS V. The Branch Bank at 
Mobile, 12 A. R. 594. 

308. A promissory note or other chose 
in action, cannot be condemned to satis- 
fy the plaintiff's demand. Jones v. Kor- 
ris, 2 A. R. 526. Marston v. Carr, 16 
A. R. 325. 

309. A judgment cannot be rendered 
against a garnishee, who answers that he 
is indebted to the defendant in a certain 
sum, to be paid in store accounts. Smith 
V. Chapman, 6 P. 365. 

310. Nor upon an answer of indebted- 
ness to be discharged in saddlery: 
Whether the court might delay pro- 
ceedings to enable the garnishee to pay 
the saddlery, or whether the debt should 
be condemned, with a reservation, that 
the garnishee may deliver the saddlery 
to the sheriff, qiicere. Blair v. Fhodes, 
5 A. R. 648. 

311. Nor., upon an admission of in- 
debtedness, to be discharged in defend- 
ant's notes to other persons. Mims v. 
Parker, 1 A. R. 421. 

312. Nor upon an answer, that the 
garnishee has certain effects in his hands, 
which are going to the debtor of the 
plaintiff, or the heirs of another person, 
and he is informed, the debtor has no in- 
terest in them, except as the agent of 
such heirs. Marston v. Carr, 16 A. R. 
325. 

313. A garnishee answered, that the 
defendant was indebted to S in the sum 
of $5,000, and mortgaged real estate to 
secure the payment; that afterward S 
purchased the property at a sale under 
execution against the defendant, and 
sold it at aviction ; and that he became 
the purchaser for the sum of $10,005, 
under a previous agreement Avith S, that 
he should only pay $6,000, the amount 



116 



ATTACHMENT. 



due upon the mortgage, and the sum 
paid at the sheriff's sale: Held, that a 
judgment could not be rendered upon 
the answer ; and that if the defendant 
had any interest in the property, either 
as mortgagor, or by contract with S, his 
creditors might, subject it in a court of 
equity. Perine y. George, 5 A. R. 641. 

314. When a gai^nishee answers, that 
he owes the defendant a sum of money 
to be accounted for on a final settlement, 
and that on a final settlement the de- 
fendant will be indebted to him, no 
judgment can be rendered against him,, 
unless upon an issue, the answer is 
found to be untrue. Buforcl v. Welborn, 
A. R. 818. 

315. When a debtor fraudiilently as- 
signs a judgment, aud receives for it a 
transfer of debts due the assignee, if a 
creditor with a full knowledge of the 
circumstances, proceeds by garnishment 
to subject the debts transferred, he can- 
not controvert the validity of the assign- 
ment of the judgment. Sheppard v. Bu- 
forcl, 7 A. K. 91. 

316. When a garnishee answers, that 
at the date of the garnishment, he owed 
the defendant a sum due by judgment, 
but since that time has paid it to the 
sheriff; and the plaintiff in the judgment 
thereupon rules the sheriff for not pay- 
ing over the money upon demand, the 
court cannot direct the fees of the attor- 
ney who recovered the jvidgnient, and 
the costs of the garnishee to be paid out 
of the amount in the sheriff's hands, and 
the balance to be paid to the creditor. 
Zurcher v. Magee, 2 A. R. 253. 

317. When a garnishee admits in- 
debtedness, he cannot avoid a judgment, 
by insisting, that as administrator of an 
estate, he has a debt against the defend- 
ant; the debts not being due in the 
same right, cannot be set off. Thomas v. 
Hopper, b A. R. 442. 

318. When a gai*nishee answers, that 
he is an executor, and that his testator 
was indebted to the defendant, no judg- 
ment can be rendered against him, un- 
less ho is summoned in his representa- 
tive character. Tillinqhast\. Johnson, 5 
A. R. 514. 

31'.). If the trustee in a deed of trust 
for the benefit of the grantor's creditors, 
place deljts of the grantor in the hands 
of an attorney for ccdlection, who is gar- 
nisheed Ijy creditors of the grantor, 
judgment cannot be rendered against 



him until the trustee has been summon- 
ed before the court, and' the deed ad- 
judged invalid. Covington v. Kelly, 6 
A. R. 860. . 

320. When a garnishee answers, that 
the defendant holds his note for a cer- 
tain sum, but he has set-offs against it, 
and until a settlement is made, he can- 
not tell what is due, a judgment cannot 
be rendered against him. Allen v. Mor- 
gan, 1 S. 9. 

321.. No judgment can be rendered 
against a garnishee, who answers, that 
the defendant placed a sum of money 
with him for safe-keeping, Avhich he be- 
lieves belongs to the United States. 
Oliver V. Atkinson, 2 P. 546. 

322. A judgment rendered by default 
against a garnishee, on the third day of 
the term to which he is summoned, is 
erroneous, and will be reversed on er- 
ror. Randolph v. Peck, 4 A. R. 389. 

323. A proceeding by garnishment is 
a suit, and a justice cannot render judg- 
ment therein against the garnishee, for a 
sum beyond hisjurisdiction, although it 
may be founded on several judgments 
against the original defendant. Wither- 
spoon V. Barber, 3 S. 335. 

324. And although one answer of a 
garnishee, may authorize more than one 
judgment, yet it would be extremely ir- 
regular, if not erroneous, to render but 
one, to satisfy several executions against 
the defendant. Ih. 

325. In a suit by garnishment, judg- 
ment cannot be rendered against the 
garnishee for the costs, if he is not in 
default. lb. 

326. The costs of the suit against the 
principal debtor, do not constitute any 
part of the costs against the garnishee, 
but become part of the debt, and as such, 
are recoverable, if the garnishee is in- 
debted a sufficient sum to cover them, as 
well as the principal debt. Locktt v. 
Child, 11 A. R. 64U. 

327. Stock ovmed by an individual 
in an incorporated company, cannot be 
subjected to the payment of his debts, 
by process of garnishment against the 
corporation; and a judgment cannot be 
rendered against the corporation as gar- 
nishee, to be discharged by a transfer of 
the stock to the plaintiff. P. d; M. Bank 
v. Leavens, 4 A. R. 753. 

328. The amendment of a judgment 
discharging a garnishee nunc pro tunc, 
by setting out his answer at length, 



ATTACHMENT. 



11^ 



which ■was previously a part of the rec- 
ord, is no grouud for the rever.'^al of tlie 
judgment. Piice v. Thomason, 11 A. 
R. 870. 

329. When one of a firm is garnisheed, 
the creditor must be considered as elect- 
ing to proceed against him solely, "and, 
on his answer, admitting the indebted- 
ness of the firm, is entitled to have judg- 
ment against him. Travis-Y. Tartt, 8 A. 
R. 574. 

330. A and B having a lavrsuit about 
a tract of land, C wanting to rent it, ap- 
plied to both for that purpose, but each 
declined to exercise ownership over it: 
C then told them he should cultivate it, 
and would pay rent to Avhichever of the 
two was ascertained to be the owner : 
Held, that this promise inured to the 
owner of the land, and that the tenant 
could be garnisheed by a creditor of the 
owner, when the ownership was ascer- 
tained. Smith v. Taylor, 9 A. R. 633. 

331. An attachment was sued out by 
T, against F, and L was garnisheed as 
a debtor of F: After service of the gar- 
nishment, F obtained judgment against 
L for the amount of the debt due from 
him, in the same court in which the at- 
tachment was pending, and execution 
issuing thereon, L paid the amount to 
the sherifi", by whom it was paid to the 
attorney of F, who pursuant to instruc- 
tions previously given him by F, paid 
the money to a third person : Held, that 
upon this state of facts, 'the garnishee 
was liable to the plaintiff in attachment. 
Twelves v. Lodano, 15 A. R. 782. 

(d) Proceedings ichen Garnishee has been 
notified of a transfer; and of the 
contest with the Assignee. 

332. "When the answer of a garnishee 
discloses, that another person has, or 
claims an interest in the debt, such third 
person should be cited to appear. Payne 
V. The Mayor of Mobile, 4 A. R. 333. 
Covington v. Kelly, 6 A. R. 860. 

333. Where a garnishee answers, that 
he will be indebted to the defendant in 
attachment, or to another person, who is 
named, in a certain sum, at a future 
time, the court may order citation to be 
issued to such person, to contest .with 
the plaintiff the right to the money. 
Moore v. Jones, 13 A. R. 296. 

334. Wliere the answer .of a garnishee 
states, that a third person sets up a 



claim to the debt admitted to be owing, 
the act of 1840 requires a notice to be 
given to that person ; and it seems, that 
two notices returned "not found," are 
equivalent to personal service, so that 
the statute applies even where he resides 
without the state. Fortune v. The State 
Bank, 4 A. R. 385. (But see Sheppard 
y. Bvford, 7 A. R. 90.) ■ 

335. If a plaintiff" in attachment, after 
a garnishee has answered,' disclosing the 
fact, that the demand sought to be con- 
demned, has been transferred, suffers 
several terms to elapse without taking 
the proper steps to bring the transferree 
into court, to contest Avith him ithe valid- 
ly of the transfer, it is not error in the 
court to discharge the garnishee. Mock 
V. King, 15 A. R. 60. 

330. When a garnishee answers, that 
he iias received notice of the assignment 
or transfer of the debt in respect to 
which the garnishment issues, from a 
person residing without the state, the 
court should order publication for six 
months, before proceeding to consider 
the validity of the assignment ;■ and if 
the court decides, that the assignee is 
properly before it, without publication, 
or the personal service of notice, the ap- 
pearance of an attorney subsequently, 
for the assignee, will not cure the irreg- 
ularity. Shejjpard v. Buford, 7 A. R. 

337. The design of the act of 1840, 
which requires a summons to issue to 
the assignee or transferree of a debt 
when the garnishee discloses a transfer 
by his answer, is to enable the plaintiff 
in attachment to contest the validity of 
the alledged transfer : In such a case, - 
the proper course is, for the plaintiff to 
alledge the invalidity of the transfer, to 
which the assignee would be required to 
answer, and thus an issue Avould be 
made, to be tried, either bj-the court or 
jury. Goodwin v. Brooks, 6 A. R. 836. 

338. When the record does not dis- 
close, that upon the a]ipearance of the 
assignee, the plaintiff made an allega- 
tion against him, an order discharging 
the assignee, will be upheld, as it must 
be presumed, that the plaintiff abandon- 
ed the pursuit of the garnishment. lb. 

339. When the transferree of a debt, 
is summoned in an attachment suit, af- 
ter the answer of the garnishee, he is 
compelled, on the issue witii the attach- 
ing creditor, to show, that the debt was 



118 



ATTACHMENT. 



transferred to him previous to the ser- 
vice of the garnishee process ; and the 
court may require this question to be 
presented by the issue. Campx.IIaUer, 
11 A. R. 151. 

340. The notice to the transferree, 
may be ordered at any time after the 
coming in of the ansAver, and before the 
termination of the suit ; therefore, an 
order at the same term when final judg- 
ment is rendered against the debtor, is 
regular, and sufiicient to continue th,e 
cause against the transferree. Ih. 

341. The mere production by the 
transferree, of a note made by the gar- 
nishee, with an assignment on it by the 
attachment debtor, is not sufficient to 
prove, that the note v^as assigned previ- 
ous to the service of garnishee process : 
It is with the transferree to show, when 
his interest was acqviired. Ih. 

342. A transferree contesting the cred- 
itor's right to condemn the transferred 
debt, is liable for costs, if the issue is 
found against him; and a jvidgment 
condemning the debt in the hands of the 
garnishee, to the payment of the judg- 
ment debt and costs, and giving costs 
against the transferree, is regular. Ih. 
Blackman v. SmWi, 8 A. R. 203. 

343. One who is summoned as trans- 
ferree of a debt admitted to be due l)y 
the garnishee answering in the suit, will 
not be permitted to take advantage of 
errors in the proceedings, either against 
the original defendant, or against the 
garnishee. Blackman v. Smith, 8 A. R. 
203. 

344. It is of no importance, that two 
or more persons are summoned by the 
same notice to appear and contest the 
plaintiff's right to condemn a demand 
which the garnishee suggests has been 
transferred to another, or to others ; but 
if the objection is valid, it should be 
raised before submittiaag to go to trial. 
lb. 

345. After judgment against a trans- 
ferree, an issue will be presumed, if one 
was necessary. lb. 

346. In an issue between the trans- 
ferree of a debt admitted to be due to the 
debtor, and the attaching creditor, the 
court may require the transferree, to 
aver the validity of the transfer ; and it 
is not error to refuse to compel the cred- 
itor to aver, that the debt is subject to 
his process. Scuit v. ElallswortJi, 12 A. 
E. 25. 



347. On the trial of such an issue, the 
debtor, under the act of 1845, is not a 
competent witness. Ih. 

348. Nor is the debtor a competent 
witness for the garnishee, in a contest 
between him, and the creditor. Marston 
V. Carr, 16 A. R. 325. 

349. When the plaintiff controverts 
the answer of the garnishee, or the right 
of the transferree to the debt, an issue 
will be suffiqient, if it reasserts, that the 
garnishee is indebted, or conceding the 
answer to be true, denies that the as- 
signee has any adverse rights. Moore v. 
Jones, 13 A. R. 296. 

350. When a transferree is summoned 
to contest with the plaintiff, the right to 
money in the hands of. a garnishee, and. 
fails to appear; or where the summons 
is returned not found, the court may 
cause the default to be entered of record, 
and proceed as if nothing was claimed 
by the supposed transferree ; but cannot 
direct an issue to be made up between 
the j^laintiff and him, and upon a ver- 
dict for the plaintiff, render a judgment 
for costs against the transferree. Evans 
V. Norman, 14 A. R. G62. Sutlterlin v. 
Norman, 14 A. R. 662. 

351. When the garnishee by his an- 
swer, discloses, that there were two in- 
dorsees of the note, upon which he is 
garnisheed, it is not sufficient to cite tliQ 
last indorsee ; both should be summoned 
to contest the plaintiff's right, before a 
judgment can be rendered against the 
garnishee. lb. 

352. McD made a verbal agreement 
with G, for a tract of land, by which, he 
agreed to discharge certain judgments 
against G, and pay the residue to McI: 
After this a judgment creditor levied on 
the land, and before the sale, J, a credi- 
tor of G, caused an attachment to be lev- 
ied upon it: The land was sold, and pur- 
chased by McD, the judgment discharged, 
and for the residue of the purchase mon- 
ey, E A & Co., also judgment creditors 
of G, sued out garnishee process, and 
summoned McD, who answered, disclos- 
ing the above facts, whereupon an order 
was made, that McI, .and J appear and 
contest the plaintiff's claim: Held, that 
an attachment could be levied on the 
land by J, after the levy of an execution 
upon it; that the attachment of J, gave 
him a right to the residue, in the hands 
of the garnishop, superior to McI, Avhose 
title was derived from the verbal promise 



ATTACHMENT. 



119 



of tlie garnishee, made prior to the pur- 
chase of the hi.nd ; that J was properly 
summoned under the statute requiring 
all persons who have notified the garni- 
shee, that the debt in respect to which 
he has been garnisheed, has been trans- 
ferred, or assigned to them, to be sum- 
moned to contest Avith the plaintiff, the 
validity of such transfer; that any per- 
son summoned under this statute, and 
aggrieved by the judgment of the court, 
may prosecute a writ of error ; and, that 
the judgment of E A & Co., being poste- 
rior to the levy of the attachment of J, 
would be postponed to it. Johnson v. 
Burnett, 12 A. R. 743. 

(e) What defenses Garnishee may make, 
and what irregidarlties he may take 
advantage of. 

353. A justice of the peace of one. 
cotmty, is not authorized to issue an at- 
tachment returnable into another ; and 
it is competent for a garnishee, to avail 
himself of the irregularity in the attach- 
ment, in an appellate court; though no 
objection was made to it previous to the 
judgment below. Deio v. The Bank of 
Alabama, 9 A. R. 323. 

354. A pending attachment may be 
pleaded in abatem^ent by the garnishee, 
Avhen sued for the same debt, by the 
original creditor. Crauford v. Clute, 7 
A. R. 157. 

355. But a pending attachment for the 
same debt, cannot be pleaded in abate- 
ment of the writ, but to suspend further 
proceedings in the cause for the present: 
The prayer of the plea is, not that the 
writ be quashed, but "whether the covirt 
will compel further answei*." Crauford 
V. Slade, 9 A. R. 887. . • 

356. The same object may be accom- 
plished by a suggestion to the court, of 
the pendency of such suit, which will 
thereupon suspend further }jroceediugs 
until the attachment suit is determined ; 
and this suggestion may he made after 
judgment rendered, when the court will 
direct a stay of execution pending the 
attachment suit. lb. Crauford v. Cluie, 
7 A. R. 157. 

357. A garnishee cannot plead in bar 
of a recovery, in a suit Ijrought against 
him by the assignee of a promissory 
note, that judgment 7iisi has been ren- 
dered against him as the debtor of the 
payee, and that he has paid the same; it 



not appearing that any scire facias is- 
sued, or was served on him, or that any 
final judgment was rendered against 
him. Johns v. Field, 5 A. R. 484. (Ok- 
MOND, J., dissenting.) 

358. A plea, alledging, that the de- 
fendant had been garnisheed in a court 
of the state of Louisiana, and a judg- 
ment rendered against him on his an- 
swer, condemning the debt in favor of a 
creditor of the plaintiff, setting out the 
proceedings fully, and alledging that 
they were conducted according to the 
laws of Louisiana, and that he had paid 
and satisfied the judgment so rendered, 
is good : It is not necessary in such a 
plea, to alledge, in totidern verbis, that 
the defendant had no notice of the trans- 
fer of the note, when he answered the 
garnishment. Mills v. Stewart, 12 A. R. 
90. 

359. The defendant pleaded j^irts (Zar- 
7'em continuance, that since the com- 
mencement of the suit, the debt sued for, 
had been attached in the same court, 
and that judgment had been obtained 
against him as garnishee, which he had 
satisfied : Held, that the plea was good, 
but that the plaintiff was entitled to his 
costs up to the time of plea pleaded. 
Hitt V. Lacy, 3 A. R. 104. (Gold- 
THWAiTE, J., dissenting as to the ques- 
tion of costs.) 

360. When a garnishee admits in- 
debtedness, he cannot avoid a judgment 
by insisting, that as administrator of an 
estate, he has a debt against the defend- 
ant ; the debts not being due in the 
same right, cannot be set off. Thomas 
V. Hopper, 5 A. R. 442. 

361. The defendants being sued on a 
specialty, for the payment of four hun- 
dred dollars, pleaded in bar, that they 
had been summoned as garnishees, at 
the suit of L S F, Avho had recovered 
several judgments against the plaintiff 
before a justice of the peace, to answer 
how much they were ii:fflebted to him ; 
that they admitted they owed him two 
hundred dollars on the specialty, and 
no more; that their answer was contest- 
ed before the justice, who after hearing 
the evidence, adjudged that the same 
Avas true ; and that several judgments 
were rendered by the justice against 
them as garnishees, amounting to the 
sum admitted to be due, which have 
been satisfied: Held, that the judgment 
of the justice could not be pleaded as a 



120 



ATTACHMENT. 



bar to the plaintiff's action, excejot only 
as to the amount that had been con- 
demned in the defendants' hands as, gar- 
nishees ; and that the decision as to the 
sum which they denied they owed, was 
coram non jv.dice. Cameron v. StoUen- 
wercK; C A-. H. 704. 

362. A garnishee cannot take advan- 
tage of an irregularity in the proceed- 
ings between parties to an attachment. 
Sinitli V. Chapman, 6' P. 365. Stehbins 
v. Fitch, 1 S. 180. Thomjjson v. Allen, 
4 S. & P. 184. 

3G3. If a garnishee answers without 
objecting to any defect *in the process 
against him, he cannot, in this court, be 
permitted to alledge that he was not 
served according to the forms prescribed 
bylaw. . Smithy. Chaj)man, 6 P. '365. 
Daniel v. Hojiper, 6 A. Pi, 296. 

364. When a garnishee brings money 
and other effects into court, and denies 
all indebtedness to the defendants, he 
cannot, after his discharge, sue out a 
writ of error, if the court makes an im- 
proper disposition of the money and ef- 
fects ; and a writ -pf error sued out by 
him, will be dismissed. Lewis v. Shef- 
fehl, 1 A. P. 134. 

365. It is not error to render a judg- 
ment against parties as administrators, 
when the process issues against them as 
executors : Such a judgment is amenda- 
Ible under the statute of jeofails. Terry 
V. Lindsaij, 3 S. & P. 317. 

366. Objection to the sufficiency of the 
affidavit in a proceeding by garnishment, 
must be taken" in the court below. Ih. 

367. YV^here a garnishee is regularly 
summoned, and it appears from an au- 
thority indorsed on the summons, that it 
was served by a deputy speciall}^ author- 
ized by the sheriff" to make- that service, 
the counsel for the debtor, (not' being 
counsel! for the garnishee,) cannot have 
the summons dismissed, on the ground, 
that the authority to serve it, was not in 
f\xct givgn by the sheriff, but by a depu- 
ty, this not appearing on the face of the 
papers, and the garnishee not having 
appeared, or pleaded. Walker v. Taylor, 
1 S. & P. 298. 

368. A garnishee who admits indebt- 
edness to the defendant, or to some one 
who claims the debt, may prosecute a 
writ of error, if a judgment is rendered 
against him, and show that the judg- 
ment should not have been rendered. 
Fortune v. The State Bank, 4 A. R. 385, 



369. A garnishee In attachment, can- 
not recover in assumpsit the amount he 
has paid, Avliere tlie judgment against 
the debtor In attachment has been re- 
versed for mere Irregularity, If the 
amount paid was justl}^ due by him to 
the defendant, and by the latter to the 
plaintiff in the' attachment. Duncan v. 
Ware, 5 S. & P. 119. 

(f ) Of the Judgment nisi, liability for 
■ costs, and alloivance to Garnishees 

370. In proceeding against a garni- 
shee after the reridltion of a judgment 
nisi, two returns of non est, to succeed- 
ing writs of sci. fa. will sustain a final 
judgment against him, Armstrong v. 
Dargan, 11 A. R. 506. 

371. After a judgment by default 
against a garnishee, he must be served 
with a sci. fa., or there must be some 
equivalent j^troceedlng to authorize a final 
judgment. Deio v. The Baidc. of Ala- 
bama, 9 A. R. 323.. Lowry v. Clements, 
9 A. R. 422. Jo7ies v. Hart, 2 A. R, 73. 
Djckerson v. Walker, 1 A. R. 48. Scale's 
V. Swan, 9 P. 163. 

372. A judgment 7iisi against a garni- 
shee, must be for a sum certain, and 
cannot be rendered for an uncertain 
amount, to be ascertained bya judgment 
to be afterward rendered. Dickerson v. 
Walker, 1 A. R. 48. 

373. The final judgment against a 
garnishee, cannot extend bej^ond, or be 
variant from the judgment nisi, of which 
it Is a mere, confirmation. lb. 

374. Where a judgment nisi' is prop- 
erly entered, the right to enter final 
judgment on the return of a sci. fa. fol- 
lows as a necessary consequence. Scales 
V. Swan, 9 P. 163. 

375. On an attachment against a non- 
resident, a garnishee failed to answer at 
the return term, and no proceedings 
were then had as to him, but an order 
of publication was made as to the de- 
fendant in attachment ; at the next term, 
a judgment by default nisi was taken 
against the garnishee : Held, that this 
was regular, and that there was no dis- 
continuance as to tlie garnishee. Bob- 
inson v. Starr, 3 S. 90. 

376. When a garnishee, denies in- 
debtedness, and the plaintiff alledges 
that he is Indebted, a sufficient Issue Is 
formed iipon the answer ; and if this 
issue is found against the garnishee, he 



ATTACHMENT. 



121 



is liable to a judgment for costs. Thomp- 
son V. Allen, 4 S. & P. 184. 

(g) Effect of Judgment against Garnishee, 
and payment thereof. 

377. It is the duty of a garnishee, 
when notified of tlie transfer of a debt 
he owes the defendant, to state that fact 
in his answer, or a judgment upon his 
answer, -vwll not protect him from liabil- 
ity to the assignee ; if he does so, no 
judgment- can be rendered against him. 
Foster y. White, 9 P. 221. 

378. If a garnishee is notified of the 
transfer of a debt, before he answers, 
and does not state that fact an his an- 
swex", a judgmeiat against him, and pay- 
ment thereof, will not protect him from 
liability to the assignee. Calvin v. Bich, 
3 P. 175.. 

379. Where part of a debt is attached 
in the hands of a garnishee, which he 
pays, he will be protected against a sec- 
ond recovery, to that extent, while the 
proceedings though erroneous, remain 
unreversed. Tubb v. Madding, Minor, 
129. 

380. "Where an attachment is issued 
by a justice of the peace, for a sum with- 
in his jurisdiction, upon an insufficient 
affidavit, the proceedings are not void, 
but voidable only; and a garnishee who 
has bona fide, paid a debt due to the de- 
fendant in such attachment, will be pro- 
tected from a second payment. Parmer 
V, Ballard, 3 S. 326. 

381. The defendants being sued on a 
specialty, for the payment of four hvm- 
dred dollars, pleaded in bar, that they 
had been summoned as garnishees, at 
the suit of L S F, Avho had recovered 
several judgments against the plaintiff, 
before a justice of the peace, to answer 
how much they were indebted to him ; 
that they admitted they owed him $200 
on the specialty, and no more ; thattheir 
answer was contested before the justice, 
who after hearing the evidence, adjudg- 
ed that the same was true ; and that sev- 
veral judgments were rendered by the 
justice against them, as garnishees, 
amounting to the sum admitted to be 
due, which have been satisfied: Held, 
that the judgment of the justice could 
hot be pleaded as a bar to the plaintiff's 
action, except only as to the amount that 
had been condemned in the defendants' 
hands as garnishees ; and that the dccis- 

1—16 



ion as to the sum which they denied 
they owed, Avas coram nan judice. Cam- 
eron v. Stollemverck, 6 A. R. 704. 

382. A garnishee against whom a 
regular judgment has been rendered, 
may discharge it by payment, without 
waiting until he is coerced by execution. 
Mills V. Stewart, 12 A. R. 90. 

383. A garnishee cannot plead in bar 
of a recovery, in a suit brought against 
him by the assignee of, a promissory 
note, that judgment nisi has been ren- 
dered against him as the debtor of the 
payee, and that he has paid the same, it 
not appearing that any sci. fa. tS^Ued, or 
was served on him, or that any final 
judgment was rendered against him. 
Johns V. Field, 5 A. E. 484. (Ormond, 
J., dissenting.) 

384. A plea, alledging, that the de- 
fendant had been garnisheed in a court 
of the state of Louisiana, and a judg- 
ment rendered against him on his an- 
swer, condemning the debt in favor of a 
creditor of the plaintiff, setting out the 
proceedings fully, and alledging that 
they were conducted according to the 
laws of Louisiana, and that he had paid 
and satisfied the judgment so rendered, 
is good: It is not necessary to alledge, 
in totidem verbis, that the defendant had 
no notice of the transfer of the note, 
when he answered the garnisliment. 
Mills V. Steivart, 12 A. R. 90. 

385. The defendant -pleAded puis dar- 
rein continuance, that since the com- 
mencement of the suit, the debt sued for, 
had been attached in the same court, 
and judgment obtained against him as 
garnishee, which he had satisfied : Held, 
that the plea was good, but that the 
plaintiff was entitled to his costs up to 
the time of plea pleaded. Eitt v. Lacy, 
3 A. R. 104. (GoLDTHWAiTE, J., disscnt- 
ing as to the question of costs.) 

386. When a garnishee has discharg- 
ed a judgment rendered against him, if 
the creditor afterward attempt to enforce 
the collection of the original debt, by ex- 
ecution, the court out of Avhich it issued, 
will on motion, direct satisfaction of the 
judgment, so far as it has been discharg- 
ed by the payment of the judgment ren- 
dered against the garnishee ; and there- 
fore, a bill in chancery will not lie for 
that purpose, unless other facts are al- 
ledgcd Avhich give, a court of chancery 
jurisdiction. Chandler v. Faidkner, 5 
A. R. 567. 



122 



ATTACHMENT.— ATTORNEY. 



387. It is no defense to a suit on a 
note, that one of the defendants had been 
garnisheed by a creditor of the payee, 
and judgment obtained against him, 
"without proving also, that the judgment 
had been satisfied; such proof may be 
made in the action of assumpsit, under 
the general issue. Cook v. Field, 3 A. 
E. 53. 

388. When an execution upon ajudg- 
ment is returned satisfied, process of gar- 
nishment cannot afterward be issued 
upon the judgment; if it should be, it 
may be quashed on motion of the garni- 
shee. Thompson \. Wallace, 3 A. R. 
132. . 

389. When a note is given to one as- 
suming to act for another, for a debt al- 
ready owing, and the agreement is, that 
it shall remain with a third person until 
the concurrence of the creditor is obtain- 
ed, an attachment afterward levied, up- 
on such concurrence, Avill authorize the 
maker to resist the payment, on showing 
satisfaction of the judgment on the gar- 
nishee process. McClure T. Litchjield, 
11 A. R. 337. 

390. After a debt due by judgment is 
condemned in the hands of a garnishee, 
the attaching creditor may compound 
■with him, and release the judgment, pro- 
idded his judgment against the debtor 
attached, remains in force, and is credit- 
ed with the sum recovered by him from 
the garnishee. Hide v. Garrett, 10 A. 
E. 298. 

391. When a garnishee •paj'^s the 
judgment rendered against him, he is 
discharged from liability to his creditor. 
Dimcan v. Ware, 5 S. & P. 119. 



. ATTORNEY. 

I. Who may practice as an Attorney, 

AND OF THE OATHS REQUIRED. 

II. Authority op an Attorney, and 

WHEN IT may be CALLED IN QUESTION. 

III. Duty and liability of an Attor- 
ney. 

IV. Compensation, fees, and lien of 
AN Attorney. 

V. Misconduct of an Attorney, and 
HOW FAR his Client is affected 
thereby, or will be protected in 
HIS DEALINGS -WIXU. HIS AyXOEis'SY. 



VI. When service op notice, and other 
papers, may be made on AN Attor- 
ney. 

VII. Privileged communications; state- 
ments AND agreements IN REFER- 
ENCE TO A CAUSE, AND WHEN AN AT- 
TORNEY MAY BE A witness FOR HIS 

Client. * 

VIII. Pleadings and Evidence in ac- 
tions AGAINST Attorneys. 



I. Who may practice as an Attorney, 
and OP the oaths required. 

1. The right to practice law in this 
state is a mere franchise or privilege, 
derived from the acts of 1807, 1819 and 
1826. In the matter of J. L. Dorsey, 7 
P. 298. 

2. This right is a valuable right, as 
deserving of protection as property. lb. 

3. The sixteenth section of the duel- 
ing act therefore, w^hich requires an ex- 
purgatory oath to be taken, by attor- 
neys and counselors at law, as a condi- 
tion to the right to practice law, is con- 
trary to the constitution, and void. lb. 
(Collier, C. J., dissenting.) 



II. Authority op an Attorney, and 

when it may BE called IN QUESTION. 

4." A judgment may be confessed by 
an attorney, against his client. Hill v. 
Lambert, Minor, 91. 

5. An attorney at law, is the special 
agent of his client. Gtdlett v. Leiois, 3 
S. 23. 

6. An attorney has no authority to 
receive any thing but money, in pay- 
ment of a demand placed in his hands 
for collection ; and if he appl}?- the claim 
in payment of his own debt, his client is 
not bound. lb. 

7. An attorney who has obtained a 
judgment on a claim placed in his hands 
for collection, has }io right to take a 
bond in satisfaction of the judgment, 
without the consent of his client. Kirk 
V. Glover, b S. &. P. 340. 

8. He cannot transfer a note placed ' 
in his hands for collection, in payment 
of his own debt, so as to bind his client, 
cither in law or equity. Craig v. Ely, 5 
S.' & r. 351. Cost Y. Genetic, 1 P. 212. 



ATTORNEY. 



123 



9. An attorney has no authority to 
sue in his own name, on a note payable 
to his client, or bearer, even with the con- 
sent of the client. Bryantx. Owen,lV.201. 
(But see Bancroft v. Paine, 15 A. R. 839.) 

10. By the employment of an attor- 
ney at law, to conduct a cause in court, 
a personal trust and confidence is repos- 
ed, which cannot be delegated to ano- 
ther, but by the consent of the person 
interested. Hitclicock v. McGeliee, 7 P. 556. 

11. If a delegation thus made without 
authority, be afterward assented to by the 
party interested, with full knowledge of 
the facts, it will -be as binding on him as 
if made by his authority. Th. 

12. Or, if information be seasonably 
given to the person interested, of such 
unauthorized, delegation, and he do not 
dissent from it, he will be held to have 
acquiesced in it. lb. 

13. But where no information of the 
delegation was given, until nearly three 
years had elapsed, and then only on ap- 
plication of the person interested, al- 
though no dissent was expi'essed, yet no 
ratification could be presumed. 76. 

14. An attorney at law, in virtue of 
his ordinary powers, cannot delegate his 
a\ithority to another, so as to raise a priv- 
ity between such third person, and his 
principal, or to confer on him, as to the 
principal, his own rights, duties, and 
obligations. Johnson v. Cunningham, 1 
A. R. 249. 

15. And if there Is any thing in the 
nature of the employment, from which 
a delegation of authority may be implied, 
or to show that it was contemplated by the 
parties, it should be shown by proof. lb. 

16. An attorney is not authorized to 
receive his own or any other person's 
note, in payment of a debt placed in his 
hands for collection ; and if notes are re- 
ceived by a sheriff in satisfaction of an 
execution, either with or without the di- 
rection of the attorney, the return may 
be vacated on motion, and another exe- 
cution issued. Cook v. Bloodgoocl, 7 A. 
R.684. 

17. An attorney at law, intrusted 
with a note for collection by suit, is au- 
thorized to sue out the process of attach- 
ment ; and his client is liable for the ac- 
tual damages sustained, if the process is 
wrongfully sued out, although he may 
have instructed his attorney to use prop- 
er means only. Kirksey v. Jones, 7 A. 
R. 623. 



18. An attorney at law, in virtue of 
his general powers as such, has no au- 
thority to receive depreciated bank pa- 
per in payment of a debt placed in his 
hands for collection ; and if he collects 
in such funds, his client is not bound to 
accept it. West.y. Ball, 12 A. R. 340. 

19. A usage of the attorneys at any 
particular place, to collect money of their 
clients in bills of the State Bank and its 
branches, though selling at a deprecia- 
tion, being contrary to law, cannot be 
supported: But if such a visage were 
lawful, it woilld be controlled by the di- 
rection of the client, not to collect in de- 
preciated funds. lb. 

-20. B & C, attorneys in Montgomery, 
obtained a j judgment for clients in New- 
York, and received in pajmient of it, bank 
bills of the State Bank of Alabama; with 
these bills they purchased a check from 
the Branch Bank at Montgomery, for 
the amount of the debt, (less their fee,) 
which they remitted to their clients, on 
the 15th June, 1842; on the 23d June, 
the clients addressed a letter to the at- 
torneys, refusing to receive the check, 
denying their right to collect in depre- 
ciated funds, and informing them, they 
had remitted the check to P & T at their 
risk, for the purpose of exchanging it, 
or adding to it the amount of the ex- 
change on New-York ; P & T communi- 
cated the contents of the letter to the at- 
torneys, bvit they not offering to do any 
thing, remitted the check to the clients ; 
on the 21st July ensuing, the clients 
again wrote to the attorneys, informing 
them that P & T had declined acting in 
the business for them, and had returned 
the check, and that it was held subject 
to their ordei", and requiring instructions 
in regard to it; Alabama bank notes 
were at a depreciation in Mobile, on the 
25th May, 1842, oi 25 per cent., and at 
the time of the receipt by the clients, of 
30 jjer cent, in New-York, at which rate 
it continued, up to the 22d September 
following, when the clients sold the 
check at this discount: Held, that these 
facts did not authorize the inference, 
that the clients had ratified the acts of 
their attorneys ; that the silence of the 
attorneys, wlien applied to by their cli- 
ents, was tantamount to a refusal to act, 
and that after waiting a reasonable time, 
the clients had a right to adjust the mat- 
ter by a sale of the check. lb, 
21. An atttorney at law, in the ab- 



124 



ATTORNEY. 



sence of instructions to that effect, has 
no authoi'ity to give day of payment, up- 
on receiving security from the debtor. 
Lockliart v. Wyatt, 10 A. R. 231. 

22.' An attorney at law cannot, in 
virtue of Iiis retention, (by a release, or 
the deposit of money which will operate 
as a release, if at all, ) remit a liability 
which his client may enforce, for the 
purpose of removing the interest of a wit- 
ness, so as to make him competent to tes- 
"tify. Ball v. The Bank of Alabama, 8 
A. R. 590. 

23. The authority of an . attorney, 
ceases with the collection of the money 
demanded by the plaintiff's judgment, 
and does not authorize him to sell or 
transfer any interest in the judgment, 
or the note or bond on which it is found- 
ed. Boren v. M' Geliee, 6 P. 432. ( This 
case is limited in Leach v. Williams, 8 
A. R. 759.) 

24. Whether an attorney at law, 
charged with the collection of a debt, be 
authorized to receive money upon an 
execution, of a stranger, under an agree- 
ment with him, that the execution shall 
remain open for his benefit, is not ma- 
terial, if the money thus received is paid 
over to the plaintiffs in tlie judgment ; in 
such case, the party thus paying the mo- 
ney shall be entitled to an execution in 
the plaintiffs' names, for his reimburse- 
ment. Leach v. Williams, 8 A. R. 759. 

25. The admission by the attorney of 
record, of a fact for the purpose of trial, 
binds his client, and is conclusive of the 
fact admitted. 'Starke v. Kenan, 11 A. 
R. 818. 

26. The principal in a note, was gar- 
nisheed as the debtor of a person not ap- 
parently connected with it, while the 
payee was prosecuting a ^ujt against the 
surety; the attorney of tne attaching 
creditor, induced the garnishee to put in 
an answer, which subjected her to a judg- 
ment, by his assurance, that she-should 
not be injured by it, and that he would 
protect her against the note on which 
the surety was sued;- afterward, the 
amount of the note was collected of the 
surety, who recovered it from the garni- 
shee: Held, that the agreement of the 
attorney was binding ,upon his client, 
and that the judgment against the gar- 
nishee, should bo enjoined. Hays v. 
0'Connell,9 A. R. 488. 

27. An attorney at law of a party in 
obtaining judgment, may act as commis- 



sioner in taking a deposition for his eli' 
ent, to l?e used in a claim suit growing 
out of the judgment, he not being the 
attorney in the claim suit, and it not be- 
ing shown that he has any interest in 
the event of the suit. Taylor v. The 
Branch Bank at 'Huntsville, 14 A. R. 633. 

28. When A, corporation sues accord- 
ing to the course of the common law, it 
is not necessary that the warrant of at- 
torney should appear in the record. 
Gaines v. The Tomheckhee Bank, Mi- 
nor, 51. 

29. If an attorney proceed in the name 
of a fictitious plaintiff, or without au- 
thority, it . is a contempt punishable by 
the court ; and the party grieved would 
be entitled to recojer damages commen- 
surate with the injury: Bufthe adverse 
party has no right to question liis author- 
ity, lb. 

30. The makers of promissory notes, 
received of the payees by attorneys at 
law, in payment of demands placed in 
their hands for collection, cannot object, 
that in receiving them, the attorneys 
transcended their authority, especially 
after the transaction has been ratified by 
the clients. Pond v. Lockioood, 8 A. R. 
669. 

31. Where a suit is instituted by a 
corporation, whether the authority of 
the attorney who institutes it, can be in- 
quired into, qucere. Lucas v. The Bank 
of. Georgia, 2 ^.lAT. 

32. Pro/er/ of the authority of the at- 
torney being made in the declaration, the 
defendant by pleading the general issue, 
waives the right to inquire jnto it, if such 
right previously existed. lb. 



III. Duty and liability of an Attor- 
ney. 

33. An attorney at law is only liable 
for gross negligence, which, is a ques- 
tion of fact to be determined by the jury ; 
and the proof of it must always vary, ac- 
cording to the case stated in the decla- 
ration. Mardis v. S hackle ford, 4 A. B. 
494. Evans v. Wrdrous, 2 P. 205.' 

34. Where an attorney receives notes 
from a partner, to be collected, and the 
proceeds paid to the creditors of the 
firm, if he collects the money, and does 
not pay it to the creditors, the pai-tner 
may recover it, in an action for money 



# 



■-') 



ATTOBNEY 



125 



had and received. Mardis v. ShacJde- 
ford, 4 A. K. 493. 

35. Where an attorney, by a formal 
receipt, or mere memorandum, acknoTfl- 
edges that notes and accounts past due, 
are placed in his hands, the presumption 
is, that he received them for colleCTion ; 
and the legal effect of such a writing is, 
an vindertaking, that he will use due 
diligence for that purpose. lb. Same 
case, 6 A- R- 433. 

^36. An attorney at law, in whose 
hands notes are placed for collection, 
will be individdally liable for neglect, 
or for money lyid and received, thou^ 
he give notice Wiat he had afterward as- 
sociated with him a partner in the prac- 
tice of his profession, who collected the 
money, unless the client recognized the 
partnership in the transaction of his bu- 
siness.- Mardis v. Shackleford, 4 A. R. 494. 

37. The measure of the damages to 
which an attorney is liable, for the $iil- 
ure to perform his undertaking with his 
client, is the loss which has resulted 
from his negligence. lb. 

38. Where an attorney gives his re- 
ceipt for receipts, which third persons 
have given for notes, the inference will 
be, that he undertakes to supervise '^le 
collection of the notes, and to nntke set- 
tlements with the persons who hold 
them; and if he neglects to do so, so 
that injury results, he will be chargea- 
ble, lb. 

39. Where two attorneys are practi- 
cing in partnership, and, one 'of them 
gives a receipt in the name of the firm, 
for a debt due their client, in an action 
by the client against the firm, to recover 
the money, the other partner cannot 
show, that the receipt does not express 
the truth, or that the partner who gave 
it, received his own debt in payment. 
Cook V. Bloodgood, 7 A. R. 683. 

40. When money is collected by an at- 
torney, for persons who are themselves 
attorneys, he may discharge himself, 
either by paying it over to those from 
whom he received the claim, or to the 
true owner ; but he cannot ' discharge 
himself, by paying it to the payee of the 
note, he not being in fact the true owner, 
and the note not having been received 
by him from the payee. Wallace v. Peck, 
12 A. R. 708. 

41. One attorney confides a note to 
another for collection, and takes his re- 
ceipt, but without giving instructions 



with respect to the ownership : After the 
money is collected, it is remitted to the 
payee of the note, whose name however, 
was indorsed on the note. This remit- 
tance, (the payee not being the owner,) 
will not. discharge the collecting attor- 
ney from liability to his immediate prin- 
cipal ; nor will the action of the latter, 
for the money, be defeated by proof, 
that he was himself the agent of the in- 
dorsee, unless that person lias asserted 
his right to the money as against his 
agent. Leiois v. Peck, 10 A. R. 142. 

42. If an attorney receives property 
in payment of a debt due a client, the 
client ,may recover the amount of the 
debt, in an action against him for mon- 
ey had and received. Cameron^. Clarke, 
11 A. R. 259. 

43. Where an attorney charges him- 
self with an amount collected for his 
principal, and charges the principal with 
his fee, the jury may infer a promise 
from the attorney to pay the balance. lb. 

44. If one of two attorneys practicing 
in partnership, receives his own notes of 
a debtor, against whom the firm are in- 
trusted with a demand for collection, in 
satisfaction thereof, he will be liable to 
his copartner for any injury he may sus- 
tain, as a consequence of the act. Cooh 
V. Bloodgood, 7 A.R. 683. 

45. If the notes of an attorney are re- 
ceived by the sherifi^ in satisfaction of 
an execution, by the direction of the at- 
torney, the attorney will be liable to his 
client. lb. 

46. Where an attorney is subjected to 
damages, in consequence of the neglect, 
or improper conduct of his copartner, in 
the collection of a debt due l^y judg- 
ment, he will be remitted to the remedy 
by execution, to which the plaintiff was 
entitled. lb. 

47. An attorney who has money of 
the defendant in execution, may be gar- 
nisheed, although the money has been 
collected by suit. Mann v. Biiford, 3 
A. R. 312. . 

48. If an attorney appear for a jmrty, 
without authority, he is resj^onsible to 
the party injured by his interference. 
Wheeler v. Bullard, 6 P. 352. 

49. If an attorney proceed in the name 
of a fictitious plaintiff, or without au- 
thority, he may be punished by the 
court for a contempt ; and the party 
grieved would be entitled to recover 
damages commensurate with the in- 



126 



ATTORNEY. 



jury. Gaines v. The Tomheckhee Bank, 
Minor, 51. 



IV. COJIPEXSATION, FEES, AND LIEN OF 

AN Attorney. , 

50. Counsel, who with the consent of 
the client, withdraws from a cause after 
having rendered beneficial services, does 
not thereby lose his i-ight to compensa- 
tion for the services rendered, unless at 
the time of the withdrawal, he waives, 
or abandons his claim to compensation. 
Coopwood V. Wallace, 12 A. R. 790. 

5 1. An attorney at law, who at the in- 
stance of the administrators of an es- 
tate, has rendered valuable services to 
the estojte, may proceed at onfie against 
the estate in equity, to recover his fee, 
without previously suing the adminis- 
trators at law, one' ha^^ng removed from 
this state, and the other being insolvent, 
and neither having made any charge 
against the estate for the attorney's fee. 
J6. 

62. An attorney at law cannot recov- 
er more than he agreed to receive, by 
proof that his services were worth more. 
lb. 

53. An attorney cannot, during the 
connection between his client and him- 
self, make with his client, a binding 
contract to secure to himself greater 
compensation for his services, than was 
agreed upon when their relation com- 
menced. Lecait v. Sallee, 3 P. 115. 

54. Champerty is the unlawful main- 
tenance of a suit, in consideration of; 
some bargain, to have a part' of the Ihing 
in dispute, or some profit out of it ; and 
covers all transactions and contracts, ! 
whether by counsel, or others, to have \ 
the whole or part of the thing, or dam-" 
ages recovered. Hollcmai/ v. Lotoe, 7 P. 
488. 

55. Where, hj written agreement, the 
plaintiff in an action of slander, was to 
pay a small sum to his attorney, who 
was also to have one fourth part of the 
verdict for his services, and the plaintiff 
recovered, it was held, that an action 
wovild not lie upon the agreement,, by 
the attorney, against the client. Ih. j 

56. In such case, the attorney may } 
recover such compensation as he would , 
be entitled to, if.no such agreement had \ 
been made ; but the amount stipulated \ 



for by the illegal agreement, is no crite- 
rion, by which to estimate the value of 
his services. Holloivay v. Lowe, 1 A. R. 
246. 

57. A promise, after a suit is deter- 
mined, to pay an attorney a sum of mon- 
ey, otit of the amount collected, is not 
void for champerty. Walker v. Cutliberti 
10 A. E. 213."-'" 

58. An agreement to pay $500, out of 
moneys to be collected in a specified suit 
in Dallas chancery court, for .profession- 
al services in said case, when shown by 
extrinsic evidence, to have been made 
after the decree, is a promise to pay out 
of the particular fund provided by the 
suit ; and the right to recover is not im- 
paired, although the decree is reversed, 
when the parties aftei-ward obtain satis- 
faction through an arbitration, based on 
the principles of the decree. lb. 

59. Such an agreement; made after 
the/lecree, is not on condition that fu- 
ture services shall , be rendered ; and 
therefore, the refusal of the promisees 
to attend the suit in the appella,te court, 
will not impair th4 right to recover the 
sum stipulated. lb. 

60. Where professional services are 
performed under an agreement, that 
their value shall be determined by a re- 
spectable ijiember- of the profession, if 
the client refuse.s to have the value thus 
determined, assumpsit will lie for a 
quantum meruit: Bank of Alabama v. 
Martin, 4 A. E. 615. 

61. Such an agreement, is at most, 
l3ut an agreement to arbitrate, and will 
not bar an action to recover the value of 
the services. Ih. 

62. An agreement by. counsel, to atr 
tend to the litigated business of a bank, 
pending, and to be brought before the 
courts, to the end of the then current 
year, does not oblige the counsel to at- 
tend to such cases as are undetermined 
at the efld of the year. Ih. 

63. The act of 1839, in prescribing the 
salary of the attorneys of the State Bank 
and its branches, applies alone to the 
regular attorney in the different banks, 
who is elected by the directors, and does 
not inhibit tiie banks from the employ- 
ment of such other professional assistr 
ance as their interest may require. lb. 

64. For the successful prosecution of 
a proceeding by-sotre facias on a forfeit- 
ed recognizance, an attorney may claim 
a fee of six dollars, to bo taxed in the 



ATTORNEY. 



12T 



bill of costs. SmitJi x. The State, 7 P. 
492. 

G5. It is not competent for a court of 
law, on motion, to oiTler tlie sheriff to re- 
tain out of money collected for a plain- 
tiff, the charges of an attorney for com- 
mission, or compensation for extra ser- 
vices, not being costs, or taxed fees. 
Long Y. Lewis, 1 S. fc P. 229. ' ' 



V. Misconduct op ^an Attorxey, and 

HOW FAR HIS ClIJBNT IS AFFECTED 
THEREBY, OR AYILL BE PROTECTED IN 
HIS DEALINGS WITH HIS ATTORNEY. 

66. If an insolvent attorney, having a 
note in his hands for collection, transfer 
it in payment of his own debt, with the 
concurrence of tlie maker, who executes 
a note in lieu of it, yjayable to the as- 
signee, equity will compel the maker, to 
pay the amount to the client. Craig v. 
Ely, 5 S. & P. 354. 

67. If an attorney, without authority, 
takes a bond in payment of a judgment 
obtained by him for a client, and trans- 
fers it for his ovfn use, and the client 
ratifies the taking of the bond, after the 
transfer, it will vest the property in the 
bond in him, so as to enable him to 
maintain trover against the transferree ; 
and in such action, evidence of, such rat- 
ification is admissible : -But the defend- 
ant may prove circumstances from which 
the jury may infer, that he ratified the 
transfer also. Kirk v. Glover, 5 S. & P. 
340. ■ _ * 

68. An attorney cannot, during the 
connection between his client and him- 
self, make with his client, a binding 
contract to secure to himself greater 
compensation for his services, than was 
agreed upon when their relation com- 
menced. LecaU\. Sallee, 3 P. 115. 



A. R. 691. Jeford v. Ringgold, 6 A. R, 
549. 

70. Where a suit is brought in the 
name of one person, for the use of an- 
other, a notice to the attorney of record 
of the plaintiff, to produce a writing, 
which merely describes the suit as be- 
tween the nominal plaintiff, and the' de- 
fendant, is suf&ciently certain; and the 
attorney cannot excuse the non-produc- 
tion, by proof that he was retained by 
the plaintiff really interested. Siniing- 
ton V. Kent, 8 A. R. 691. 

71. Interrogatories, filed pursuant to 
the act of 1837, in order to obtain the 
plaintiff's testimony, may be served ei- 
ther on the plaintiff, or his attorney. 
Jackson v. Hughes, 6 A. R. 257. 

72. Notice to the plaintiff's attorney, 
several days before the term of the court 
when the cause is tried, to produce a deed, 
is prima facie sufficient, although the 
plaintiff resides out of the state ; if the 
plaintiff is not ready to produce it, and 
is unwilling that parol evidence shall be 
given, he should apply for a continu- 
ance. Jejford V. Ringgold, 6 A. R. 544. 

73. Notice to an agent, or counsel, 
employed by another person, in another 
business, at another time, will not be 
consti'uctive notice to^his principal, or 
client, employing him afterward. Mun~ 
dine v. Pitts, 14 A. R. 84. 



TI. When service of notice, and 
other papers, may be made on an 
Attorney-. 

69. A Avi'itten notice to the attorney 
at law of a party, to produce a paper to 
be used as evidence, is declared by stat- 
ute, to be as valid, and legal to. all in- 
tents and purposes, as if served on the 
party in person, Simington y. Kent, 8 



j YII. Privileged communications; state- 

i MENTS xiND agreements IN REFER- 

I ENCE TO A CAUSE ; AND WHEN AN At- 

! torney may be a witness for his 
1 Client. 

: 74. An application to an attorney at 
law, by a colored person, to draw a pe- 
; tition to the legislature for his freedom, 
1 is not a privileged communication be- 
j tween attorney and client. Whether it 
j would be, if the disclosure had been of 
Itthe facts, upon which he rested his claim 
to freedom, quccre. The State v. Mar- 
shall, 8 A. R. 302. 

75. B consulted a lawyer as to the 
means of avoiding responsibility for the 
costs of several suits, which F had insti- 
tuted in his name, who advised, that a 
motion be made to the court, to compel 
F, to give security : In the course of the 
conversation, B remarked, that he had 
four or five hundred dollars of F's money 



128 



ATTORNEY. 



in his hands : Held, that this was a priv- 
ileged communication. Brazier v. For- 
tune, 10 A. R. 516. 

76. Where an attorney had erased an 
indorsement on a bond, belonging to his 
client, on which a suit was pending, and 
had no knowledge of the contents of the 
indorsement, except what was obtained 
as attorney in the cause, he was held 
not to be bound to testify as to those 
contents. Crawford v. McKissach, 1 P. 
433. 

77. An attorney at law, is a compe- 
tent witness for his client, unless he has 
an interest in the suit. McGeliee v. 
Eansell, 13 A. R. 17. 

78. An attorney at law, who is to re- 
ceive a certiun fee, is a competent wit- 
ness for his client. Morroiv v. Parlcman, 
14 A. E. 769. 

79. The admission of a fact for the 
purpose of trial, by the attorney of rec- 
ord, binds his client, and is conclusive 
of the fact -admitted. Starke v. Kenan, 
11 A. E. 818. 

80. An agreement by counsel in one 
suit, of the existence of a fact, is not 
proof of that fact, in another suit, with 
which the former has no connection. 
Holmany. Bank ofXorfolk, 12 A. E. 370. 



VIII. Pleadings anb Evidexce in ac- 
tions AGAINST Attorneys. 

81. An attorney is only liable for gross 
negligence, which is a • question of fact 
for the jury; but an averment that he 
negligently commenced a suit, and im- 
properly dismissed it, contrary to his 
duty, is a sufficient charge of gross neg- 
lect. Evans v. Watroiis, 2 P. 205. 

82. A declaration in an action against 
an attorney, alledging that he undertook 
to collect sundry notes and accounts, and 
that contriving to deceive and defraud 
the plaintiif, he negligently failed to per- 
form his undertaking, is in assumpsit,* 
and good on demurrer. Mardis v. SliacJc- 
leford, 4 A. R. 493. ■ 

83. Under such a declaration, a mem- 
orandum of "notes sent Philpot for 
Smith's horse," is inadmissible, unless 
explained, and shown to be relevant ; 
but a memorandum, • in these words, 
" left with me r & IPs note for $70, due 
on the 1st of January, 1829, to bring 
suit on," signed by the attorney, is ad- 



missible, but may be excluded,- unless it 
be shown, that the money was collected, 
and that it belonged to the plaintifi". 76. 

84. The receipt of an attorney, for 
notes for collection, is not, of itself, suf- 
ficient evidence of negligence in collect- 
ing tl^m. Ih. 

85. ^n attorney who collects money 
in ffis^rofessional character, is not lia- 
ble to an action until after a demand ; 
but an agreement to pay it over, when 
collected, to a third person, and a failure 
to do so, dispenses with a demand. lb. 

86. The measure of the damages to 
which an attorney is liable for the fail- 
ure' to perform his undertaking with his 
client, is the loss which has resulted 
from his negligence. Ih. 

87. If an attorney fail to sue on a 
claim in his hands for collection, to the 
first court, to which, -v^ith reasonable 
diligence, suit can be brought, he is lia- 
ble to 'an action for negligence ; and the 
statute of limitations begins to run from 
that time, as a bar to such action. Ih. 

88. If a declaration, in an action 
against an attorney, charge a neglect of 
duty, and impropriety of conduct, and 
also set out an undertaking by .the at- 
torney, to collect money, and ailedge a 
promise to make good any loss resulting 
from a breach of it, it is in assumpsit. 
Cook V. Bloodgoad, 7 A. E. 683. 

89. A<declaration in an action against 
an attorney, which alledges, that the 
plaintiff put certain claims in his hands, 
which he undertook to collect, and to 
pay the proceeds to the creditors of the 
plaiiltifi', is not bad for not stating the 
names of the creditors. Mardis v. Shack- 
leford, 6 A. E. 433. 

90. If one count in a declaration in 
an action against an attorney, for failing 
to collect and pay over the amount of 
certain claims placed in his hands for 
collection, sufficiently describes the 
claims, a subsequent count which does 
not describe, them, but refers for the de- 
scription to the count which does, is 
good. Ih. 

91. -The receipt of an attorney at law, 
acknowledging that he had received cer- 
tain securities for the payment of money, 
which he was to sue for in the United 
States circuit court, collect, and account 
for, is prima facie evidence of the genu- 
ineness, and justness, of the securities 
described in the receipt. Hair v. Glover, 
14 A. E. 500. • 



BAIL. 



129 



BAIL. 

I. Of the Affidavit for Bail, axd of 

THE Bail Bond. 
IT. Of Prison Bounds Bonds. 

III. When the Sheriff is liable as 

Special Bail. 

IV. Of the Rights of Bail, and Pro- 

ceedings against them. '. 
Y. Bail and Recqgnizance in Crimi- 
nal Cases. 



I. Of the Affidavit for Bail, and of 
the Bail Bond. 

1. A justice of the peace, may admin- 
ister tlie oath for bail, in all cases Tvhere 
bail maybe required. Wykojf-v. Taylor, 
2 S. &P. 105. 

2. If the affidavit is made befqre the 
order for bail, it may be filed at any 
time. Magee v. Erwin, 5 S. & P. 54. 

3. The sufficiency of the affidavit, when 
put in issue, "should be determined by_ 
the court, upon inspection ; but if sub- 
mitted to the jury, it will not be a suffi- 
cient irregularity, to reverse the judg- 
ment. Ih. 

4. Under the act of 1839, "to abolish 
imprisonment for debt," an affidavit for 
bail, that the defendant, "has fraudu- 
lently conveyed, or is about fraudulently 
conveying his estate or effects," is defec- 
tive, because in the alternative, instead 
of alledging one distinct ground. ' Vfade 
V. Judge, 5 A. R. 130. 

5. Tlie statement in the order for bail, 
indorsed by the clerk, on the writ, of 
what the plaintiff had sworn, will not be 
looked to, in order to determine the suf- 
ficiency of the affidavit. Walker v. Mas- 
sey, 10 A. R. 30. 

6. Where an affidavit to hold to bail 
is not sufficient, the requisition of bail is 
unauthorized, and the bail bond invalid. 
Townson v. Moore, 9 P. 136. 

7. A bail bond, conditioned for the ap- 
pearance of the principal at a day differ- 
ent from that prescribed by law for hold- 
ing the court, is void. Allen v. White, 
Minor, 289. 

8. A bail bond, conditioned for the 
appearance of the defendants in the 
original cause, at the return term, and 
for their attendance from term to term, 
until dischai-ged, is sufficient to charge 

1— ir 



the obligors as special bail. Emhree v. 
Norris, 2 A. R. 271. 

9. A bail bond, with the condition, 
that the principal shall appear at the 
court indicated by the writ, and answer 
the plaintiff, is good, although it contains 
no recital that the party was arrested. 
Walker v. Masseij, 10 A. R. 30. 



II. Of Prison Bounds Bonds. 

10. The act of 1839, " to abolish im- 
prisonment for debt," does not discharge 
the obligors from liabilitj'- upon a bond 
for the liberty of the ivison bounds, if a 
breach had occurred before the passage of 
the act. Mongin v. Harrison, 1 A. R. 22. 

11. The condition of a prison bounds 
bond is forfeited, if the prisoner at the 
expiration of si-sty days after the execu- 
tion of the bond, remains without the 
walls of the prison, without having taken 
the benefit of the act for the relief of in- 
solvent debtors. McMichael v. Bapelye, 
4 A. R. 383. 

12. A bond, executed previous to the 
passage of the act of 1839, " to abolish 
imprisonment for debt," conditioned to 
keep within the prison bounds, is not 
discharged, or in any manner affected by 
that statutei Cro,om v. Tra vis, 10 A. R. 237. 

13. A bond, conditioned,to keep within 
the "limits of the prison bounds," pur- 
suant to the act of 1824, becomes abso- 
lute by the failure of the principal to 
surrender himself to close custody, or to 
discharge himself by making a surrender 
of his effects, ai^d taking the oath of in- 
solvency, within sixty days from the 
time of its execution ; and the measure 
of the recovery vipon such a bond, cannot 
be reduced below what the statute pre- 
scribes, by proof of the inability of 'the 
principal to have discharged the judg- 
ment on which the ca. sa. issued, either 
in whole or in part. lb. 

14. The act of 1824, in requiring a 
prison bounds bond, to be taken in dou- 
ble the amount of the debt, is directory 
merely; and the requirement is suffi- 
ciently complied with, whether the pen- 
alty is less or greater than the statute 
prescribes. lb. 

15. In an action upon a prison bounds 
bond, brovight by one person for the use 
of another, the obligors may show, that 
the obligee died before the commence- 



130 



BAIL. 



ment of the suit, or that he was dead 
when the bond was executed. Tait \. 
From, 8 A. E. 543. 

16. When a debtor has been arrested, 
and has given a bond to keep the prison 
bounds, he is not discharged by making 
affidavit, that the particuLar ground upon 
which he was arrested, is untrue : .Un- 
der the act to abolish imprisonment fbr 
debt, he can be discharged by reason of 
this affidavit, only when in custody of 
the arresting officer. Morroio v. Weaver, 
8 A. R. 288. .^ ■ 

17. The act to abolish imprisonment 
for debt, is to be construed in connec- 
tion with the previous legislation on the 
same subject, and under it, when the 
prisoner seeks a discharge by a surren- 
der of his property, or by swearing that 
he has none, the application must be 
made to a judge, or two justices of the 
peace, as required by the previous acts ; 
but if the schedule be controverted by 
the creditor, one justice will constitute a 
court competent for that purpose, under 
the act of 1839. Ih. 

18. A plea in avoidance of a bond for 
the prison bounds, on the ground of a 
discharge under the statutes relating to 
the discharge of debtors, is bad, . if it 
does not aver, that notice was given to 
the creditor, and show a discharge by a 
judge, or two justices of the peace, as 
provided by the act of 1821. lb. 

19. If one in the limits, under a prison 
bounds bond, voluntarily surrenders 
himself, in the common jail of the coun- 
ty, and to the custody of the sheriff, in 
discharge of his sureties, it is a dis- 
charge of the bond, although done be- 
fore the expiration of sixty days. lb. 

20. But if such surrender is colorable' 
merely, and not intended to be for the 
purpose of discharging the bond, it does 
not have that effect ; the intention of the 
going within the jail, and the surrender 
to the sheriff, is a matter for the deter- 
mination of the jury. lb. 

^ 21. It is a good plea in bar, to an ac- 
tion for the lareach of a prison bounds 
bond, that previous to the breach as- 
signed, or within sixty days after the 
execution of the bond, the prisoner sur- 
rendered himself to the sheriff", with the 
intention, bona fide, of performing the 
condition of the bond, and discharging 
his sureties. Morrow v. Parkman, 14 A. 
R. 769. 

22. It is also a good plea, that the debt- 



or continued a prisoner, within the pris- 
on bounds as established by law, ac- 
cording to the terms of the bond, untiL 
he was discharged by due course of law. 
lb. 

23. The condition of a prison bounds 
bond, 'that the debtor will continue a 
prisoner, until discharged by due course 
of law, is, in legal effect, the same as if 
it had set out alternatively, the <liff'erent 
modes, by a compliance with either of 
which, the bond should become void: It 
is not therefore, a sufficient answer to a 
specific breach of such a condition, to 
plead generally a pierformance of the 
condition ; but it should be specifically 
stated, how the condition had been per- 
formed, lb. . 

24. The act of 1824, " concerning pris- 
ons and prisoners," requires a prison 
bounds bond, taken on process issued by 
a justice of the peace, to be filed in the 
clerk's office of the county court,, and' 
that that court, on motion, shall grant- 
judgment and' award execution against 
the obligors ; consequently, the justice 
of the peace has no right to entertain 
proceedings upon such a bond. Davis' 
V. White , 3 A. E, 131. 

25. The. condition of a bond to take 
the benefit of the act for the relief of in- 
solvent debtors, is not forfeited, because 
the justice of the peace will not permit 
the debtor to take the oath, or render the 
schedule required by law, if the creditors 
have been duly notified of the intended 
application. Briygs v. Hobson, 3 A. R. 
404. 

26. An actual surrender in discharge 
of the condition of a prison bounds bond, 
cannot be vitiated, by the motive, or in- 
tention, which influenced the surrender 
into custody. Tait v. Parkman, 15 A. 
R. 253. 

27. T obtained a judgment for the use 
of 31, against P, and sued out a ca. sa.,. 
and died, after Avhich, P executed a 
prison bounds bond, which was made 
payable to T, for the use of M : Held, 
that the executors of T, could not main- 
tain a suit on this bond, against P, for a 
breach of the condition. lb. 

28. The condition of a bond, to appear 
before two justices, and take the benefit 
of the act for the relief of insolvent debt- 
ors, is not broken, if, after ten days' no- 
tice to the creditor, the debtor appears 
at the time and place appointed, with 
the intention of complying with the con- 



BAIL. 



131 



ditlon, biit is prevented from doing so, 
by the failure of one of tbe justices to 
attend ; nor by the debtor's transferring 
his property, after the eseqution of the 
bond. 'Rust v. Paine, 16 A. R. 352. 



III. Whex the Shehiff is liable as 
Special Bail. 

29. A' sheriff' failing to take bail, is 
not liable as special- bull, unless he has 
had due notice, as required by statute. 
Need Y. Gaines, 1 S. 158. ' 

30. When the sheriff takes insufficient 
bail, and on motion of the plaintiff, is 
substituted for the bail so taken. by him, 
-the bail is entitled, ' on motion, to have 
a-n exoneretur entered on the bail piece. 
Smith V. Dennis, 3 A. R.*248, " 



IV. Of the Rights of Bail, and Pro- 

CEEDIXGS AGAIXST THE3I. 

31. The principal, ^vlien released on 
bail, is in the custody of his bail ; and 
this custody continues to all time, and 
extends to all places, until divested by 
the surrender of the debtor to the execu- 
tive officer of the law, or unless deferred 
by his arrest for some crim'e or misde- 
meanor. Kennedij x. Rice, 1 A.- R. 14. 

32. Under the statute, bail may plead 
in abatement of the suit against their 
pnncipal ; but when -they do so, the 
plea must alledge the existence of the 
facts, which authorize them, as bail, to 
defend the suit. Deforest' \. Ulkins, 2 
A. R. 50. 

33. The return of a ca. sa. " not 
found," is the foundation of the liability 
of bail ; and if the process has not been 
regularly sued out and returned, the bail 
Ls not bound. Brown v. Simpson, 3 S. 
83i.- 

\ 34.' In a proceeding by scire facias 
against bail,- it is not necessary to show 
the issuance of a ca. sa. to a county to 
which a defendant may have removed 
after arrest ; it is only necessary that a 
ca. sa. should be returned non est inven- 
tus, when issued to the county in which 
the defendant was arrested. Kennedy 

V. -Spencer, 4 P. 428. 

35. The act of 1839, abolishing im- 
prisonment for debt, does not authorize 



the discharge of a prisoner then in ac- 
tual or constructive custody; but, not- 
withstanding that act, bail are liable for 
the debt on the return of non est inventus 
to a ca. sa. properly sued out ; and are 
autliGrized to arrest and surrender their 
principal iit discharge of themselves, in 
the same manner as before the act. 
Kennedy x.'Rice, 1 A. R. 11. 

3G. To authorize a ca. sa. to be issued, 
the affidavit which the act requires, 
must be made, although the defendant 
was held to bail previous to its passage. 
O'Brien v. Leivis, 8 A. R. 666. 

87. An- affidavit setting out the prin- 
cipal and interest due upon a judgment, 
in one sum, is svifficient to ■wa.rrant the 
issuance of a ecu sa. Kenan v. Carr, 10 
A. R. 867. ' — 

38. In a scire facias against bail, it is 
not necessary to insert an entire copy of 
the bail bond ; a reasonable certainty in 
describing the record upon which the 
action is founded, is all that is required. 
Toidmin v. Bennett, 3 S. & P. 220. Ken- 
ned]/ V. Spencer, 4 P. 428. 

39. The plaintiff, in a scire facias, 
may dispense with a declaration ; but, 
in -ease of such election, he must set out 
in the writ, all that would be essential in 
a declaration to authorize a recovery. lb. 

40. The omission to set forth in the 
writ, the record and judgment on which 
the scire facias is founded, prout pcdet 
per recordiim, is cured by the statute of 
jeofails of 1824. Toidmin v. Bennett, 3 
S. & P. 220. 

41. Under the practice in this state, it 
is unnecessary to set out in a scire facias 
against bail, either that the principal ap- 
peared to the action against him, or to 
show in the declaration, the return on 
the scire facias. Kenan v. Carr, 10 A. 
R. 867, 

42. Mere irregularities in the issuance 
of the ca. sa., as, that there were not fif- 
teen days between its test and return, or 
that it did not remain in the sheriff's of- 
fice fifteen days, cannot be urged as a 
defense by bail. lb. 

43. In declaring in scire facias against 
bail, it is no gi'ouud of objection to the 
proceedings, that the writ vouches the 
record, for the affidavit to warrant the 
ca. sa., and for the ca. sa. itself, but the 
declaration contains an averment, that 
these papers had been lost since the writ 
was issued. lb. 

44. It is competent, on the plea of nid 



132 



BAIL. 



tiel record, for the plaintiiF, in scire fa- 
cias against bail, to prove that the affi- 
davit and process have been lost, and to 
show their contents hj. parol evidence. 
Ih. , 

45. The statement in the order for 
bail, indorsed by the clerk, on the writ 
or affidavit, when set ovit in the scire fa- 
c'ias' against bail, will not warrant the 
court in declaring the affidavit defective, 
as a mistake in the statement will not 
avail the defendant^ or prejudice ,the 
plaintiff. Walker v. diasseij, 10 A. H. 30. 

46. Where all the proceedings against 
the principal, are set out in .a, sew^e facias 
against the bail, and the bond is execu- 
ted to the sheriff, as sheriff, conditioned 
as a bail bond, this is sufficient to war- 
rant a judgment by default, -although no 
declaration is filed. lb. ' ' 

47. Bail may show by plea to a scire 
facias, that the plaintiff had not given, 
security for costs, which the law requires. 
Keeland v. Harper, 10 A. R. 178. Wood 
V. Yonge, 9 P. 208. Toulmin v. Bennett, 
3 S. &'P. 220. 

48. A scire facias against bail, need 
not state the affidavit and order for hold- 
ing to bail. Gliddeny. Leonard, 4. P. 

194. ~ ' ; 

49. If the defSndnnrt in scire facias ap- 
pear, and make default, it Avill hot pre- 
clude him from taking advantage on er- 
ror, of a defect in the ca. sa. against one 
for whom he was bail. Broivn v. Simp- 
son, 3 S. 331. 

50. But after a defendant appears to 
a scire facias, he will not be' allowed to 
controvert its service on him, in the 
mode prescribed by law. Ih. 

51. In debt on scire facias a,gainst 
bail, the bail will be permitted to show 
by plea, that the plaintiff did not com- 
ply with the requirements of the statutes 
before demanding bail. Kennedy v. Rice, 
1 A. R. 11. 

52. An entry of record, that the de- 
fendant appeared to a scire facias, and 
knew no I'eason why the plaintiff shoidd 
not recover, is equivalent to a confes- 
sion of judgment. Swink v. Norwood, 
9 P. 287". Clements v. Johnson, 3 S. & P. 
269. 

53. It is not a sufficient .assignment of 
a breach of a bond for special bail, to 
alledge, that the defendants have failed 
to deliver their bodies to the court or to 
the sheriff, and that the sureties have al- 
so failed to do so, " and otherwise to dis- 



charge the bond," Avithout also alledg- •■ 
ing a failure to satisfy the condemnation 
of the court. Emhree v. Norris, 2 A. R. 
271. _ . _ 

54. Bail is liable to the'«ame extent as 
the principal; a judgment may there- 
fore be rendered against bail for interest 
on the debt against tlie principal, and 
costs. Kenan Y. Carr, 10 A. R. 867. 

55. In a proceeding by scire facias 
figainst bail, a judgment by default may 
be rendered at the appearance term, not- 
withstanding thef act of 1839. Walker 
V. Massej/, 10 A. R.; 30. 

56. Nothing can be pleaded by bail, 
which could have been pleaded by the 
principal, in defense to the -action against 
him, Toulmin v. Bennett, 3 S. & P. 220. 

57. Bail may plead, that no affidavit 
was made, as required by the act of 
1839, previous to the issuance of a ca. sa. 
against the princij^al. O'Brien v. Lewis, 
8 A. ,R., 666. (This case settles the 
cjucere on this. point,' iA Kennedy v. Bice, 
1 A. R. 11.) , .... - ■ 

58. But bail will not be allowed to 
dispute the cause of action, or the truth 
of the affidavit filed by the plaintiff as a 
prerequisite to the demand for bail. Ken- 
nedy V. Bice, 1 i^ . R. 11. 

59. The act of 1839, "to abolish im- 
prisonment for debt," does not repeal 
the act of 1827, so far as the latter re- 
quires the plaintiff "to give security for 
the costs of suit," as a prerequisite to 
.demanding bail.- Keeland v. Harper, 10 
A. R. 178. , 

60. The signature of the name of a 
person, not a party to the suit, written 
under ^the attestation of the clerk of the 
court from which process issued, and 
not opposite to the sjsal, where the name 
of the security for costs was intended to 
be placed, is not such a bond for costs 
as the statute requires ; and it is not 
competent to show by extrinsic proof,- 
for the purpose of sustaining a scire feu- 
cias on the bail bond, that the person^'so 
signing, intended to make himself a 
surety for the costs. lb. 

61. Bail may also plead in bar of a 
scire facias against them, that the affida- 
vit for bail is insufficient. Townson v. 
Moore, 9 P. 136.- ■ ■ 

62. In an action of debt on a bail 
bond, the defendant may plead in abate- 
ment, that he is a resident and freehold- 
er of another county. Prim v. Davis, 2 
A. R. 24. • V 



BAIL. 



133 



V. Bail and Kecognizance in Crim- 
inal Cases. 

63. A recognizance, by Avliich the re- 
cognizors stipulate, that the principal 
shall appear and answer to a charge of 
conspiracy, is sufficient, although it does 
not designate in tire terms of the indict- 
ment, the particular act which he con- 
spired to do.. Hall. V. Tlie StatCj^ 15 A. 
E. 431. 

64. A- recognizance, taken by the 
court in which the indictment is found, 
simultaneously with an order changing 
the venue to another count}'', and condi- 
tioned for the appearance of the, accus- 
ed, to answer the charge, at the ensuing 
circuit court of the county to which the 
cause is transferred, is not liable to ob- 
jection, lb. ^ 

65. A recognizance, taken by a sher- 
iff from a defendant whom he has ar- 
rested under a cnpias, on a charge of 
felony, is void. The Governor v. Jackson, 
15 A. R. 703. 

; 66.' A' deputy sheriff Avho arrests a 
party upon a capias, for a misdemeanor, 
may take his recognizance, and it need 
not be certified by him. Sfireeve v. The 
-State, 11 A. R. 6'76. 

67. An officer who is authorized to ad- 
mit persons charged with criminal of- 
fenses, to bail, cannot delegate the pow- 
er to another. Butler v. Foster, 14 A. 
R. 323: 

68. Nor receive from the accused, a 
sum of money in lieu of, or as a substi- 
tute for bail; if money is so received^ 
neither the state, nor the county, has 
any claim to it. lb. 

69. A recognizance, to answer a charge 
for retailing without a license, is good, 
though the capias upon which the de- 
fendant was arrested, is for retailing li- 
quors without a license. Shreeve v. The 
State, 11 A. R. 676. 

70. A recognizance, to answer a 
charge for "resisting process," is good, 
though not in the words of the statute. 
Broicder v. The State, 9 A. R. 58. 

71. A recognizance to answer a charge 
"for carrying concealed weapons," is 
good, although the offense is not describ- 
ed in the terms of the statute. Hall v. 
The State, 9 A. R. 827. {Badger v. 
The State, 5 A. R. 21, on a similar point, 
declared to be a dictum.) 

72. A recognizance to keep the peace, 
must show that a prosecutor had made 



oath, that he considered himself in dan- 
ger of receiving injury from the accused, 
to his person or property. Goodtcin v. 
The Governor, 1 S. & P. 465. 

73. A recognizance which contains a 
superadded condition to that required by 
statute, is not void ; it is merely inopera- 
tive as to the unauthorized condition. 
Hoivie V. The State, 1 A. R. 113. Whit- 
ted V. The Governor, 6 P. 335. 

74. A recognizance which recites, that 
the recognizors, " freely, voluntarily, and 
of their own will and pleasure," entered 
into it, estops them' from pleading that 
it was extorted. Whitted v. The Gov- 
ernor, 6 P. 335. 

75. When points are referred as novel 
and difficult, in a case not capital, the 
condition of the recognizance should be, 
that the defendant shall "appear and 
abide the judgment," and not to " fully 
pay, satisfy and abide" by it. lb. 

76. A recognizance regularly acknowl- 
edged before the proper court or officer, 
need not be sealed. Hcdl v. The State, 
9 A. R. 827. 

77. The omission of the names of the 
parties from the body of a recognizance, 
will not affect its validity, if they have 
regularly acknowledged it. lb. Bad- 
ger V. The State, 5 A. R. 21. 

78. A recognizance in a certain sum, 
to be levied of the several and respective 
goods of the .parties, is joint and several, 
for that sum, and not the sever'al engage- 
ment of each one, for that amount. M-- 
lison V. The State, 8 A. R. 273. 

,79-. A ' recognizance taken by a jus- 
tice, Avho certifies under his signature, 
that the parties entered into it before 
him, on a certain day and year, is suffi- 
cient. Howie V. The State, 1 A. R. 113. 

80. A recognizance taken by a justice, 
preceded by a statement, that it was en- 
tered into by the parties, before him, at 
a certain time, is sufficiently certified. 
Badger v. The State, 5 A. R. 21. 

81. Where a party was recognized to 
appear at the nest term of the circuit 
court, to be held on the fourth Monday 
in March, and afterward the time of 
holding the court, was changed to the 
first Monday in March, it was held, that 
the legal effect of the recognizance, was 
to appear at the next term of the court, 
and that it was not avoided by the change 
in the time of holding the court. Walk- 
er V. The State, 6 A. R. 350. 

82. A person committed for felony, 



134 



BAIL. 



who is not tried at the next stated term 
of the court ■where the offense is cogni- 
zable, is entitled to be set at liberty on 
bail, on the last day of the t(fvm, unless 
it appear by affidavit, that the Avitnesses 
for the state could not be produced, or 
the defendant assented to the delay. 
Slmonion, ex 'parte, 9 P. 390. - (Changed 
by statute. Clay's Dig. 444, sec. 40.) 

83. By the fortieth section of the 
eighth chapter of the penal code, such 
a person is not entitled to be discharged 
on bail, as a matter of right, if the affida- 
vit is not made during the term; the aji- 
davit may be made at any time before 
the prisoner is actuaUj- discharged on 
bail. , Chaney, ex parte, 8 A.,K. 424.^ ' 

84. A jiidgment nisi, on a forfeited 
recognizance, which does not specify the 
charge that tlie principal recognizor vras 
called to answer, is insufficient to sup- 
port a judgment final. Hall v. Tlie State, 
15 xi. k 431. Lindsaii v. The Etaie, 15 
A. R. 44. Faulk v. The. State, 9 A., R. 
919. ■ _ ■; _ 

85. So is ajudgment;^'.?/, which varies 
from the charge described in the condi- 
tion of the recognizance. Hairie v. T-he- 
State, 1 A. R. 113. Farrx. The Stctte, 6 
A. R. 795. Fanlk v. The State, 9 A. R. 
919. 

86. A recognizance to answer a charge 
for counterfeiting, will not support' a 
judgment nisi, which recites that the 
defendant was called to answer to- an in- 
dictment for fors'erv. Ho^cie \. The 
State, 1 A.R. 113^ 

87. A recognizance to answer a charge 
"for exhibiting a circus for pay, without 
first obtaining a license," will not sup- 
port a judgment «m, forfiiilingto an-' 
swer a charge "for exliibiting a circus, 
without first .obtaining a license;" the 
cognizance is good, but the judgment, 
does not follow the condition. Badger 
V. The State, 5 A. R. 21. _ 

88. A recognizance will not be refer- 
red to, on error, to ascertain if it varies 
from the judgment nisi, where the judg- 
ment is 'ov default. Robinson v. The State, 
5 A. R.'706. Shreeve X. The"Staie,ll 
A. R. G76. ■ ^ . , : 

89. After judgment, it is too late -to 
object, that there is a variance between 
the recognizance as described in the 
judgment nisi, and that which appears 
in the record, Shreeve v. The State, 11 
A. R. 676. 

90. A judgment 2h'5/, upon a recogni- 



zance, may be amended mmcpro tunc, so 
as to conform to it; and if a motion for 
such an amendment is o'verniled, a writ 
of .error will lie. The Governor v. Kniglit, 
.8A. R,297. J _ . 

91. A judgnient insi, on a forfeited 
recognizance, recited that the recogni- 
zance was entered into on " Tuesday, the 
8th day of the term:" A scire facias is- 
suedj which pursued this judgment, was 
served on one of the parties and dis- 
missed, and on motion of the solicitor, 
another sci.fa. was ordered to issue, and 
leate granted to amend the judgment 
nisi, ny.ncpro time; and by the direction 
of the court, the clerk referred to the 
judgment nisi of the preceding term, 
and erased therefrom with his pen the 
words ""Tuesday, the 8th day of the 
terra," ^and interlined and substituted, 
"Wednesday, the .9th. day of the term," 
and a, sci.fa. then issued on the judg- 
ment as amended, returnable to the nest 
term: Held, that the judgment nisi was 
amendable mmc pro tunc, and that the 
particular mode adopted in this case, 
did not annul the first judgment in toto. 
.The 'State v. Craig, 12 A. R. 363. 
i 92. Ah irregular judgment 5tis2, upon 
a recognizance, may be vacated and set 
aside, even after a scire facias has been 
issued thereon ; and tlie appropriate 
iudgmentma-v be. entered. n?/?ic pro tunc. 
^-Browxler v. The State, 9 A. R. 58. 

93. Under' the statutes, which allow a 
Sicire facias, without setting out the re- 
cognizance, the defendant is entitled to 
crave oyer of the recognizance upon 
which the proceedings are based, and to 
demur, if there is a variance. Ellison 
V. TTie State, 8 A. R. 273. 
■ 94. By the third section of the act of 
18,33, personal service of a writ of scire 
facias, issued on p, recognizance against 
bail in a criminal case, is required, to 
enable the stoie to recover against the 
defendant. Hayter v. The State, 7 P. 
15G. (Changed by statute. Clay's Dig. 
442, sec. 25.) ' ■ - ' 

95. A return of "not found," to an 
original and alias scire facias, issued up- 
on a judgment nisi rendered, upon a for- 
feited recognizance, is equivalent to per- 
sonal, service. Badger v. The State, 5 
A. R. 22. lioUnson v. The State, 5 A.^ 
R. 706. Hayter v.- The State, 7 P. 156. 
•96. Although a scire ^«cias issued up- 
on a judgment nisi, rendered on a for- 
feited recognizance, be served upon all 



BAIL. 



135 



the recognizors, the state may take judg- 
ment against some of them, and alloAV 
the proceeding to ,be silently discon- 
tinued as to the others. Bohlnsonx. The 
State, 5 A. E. 706. 

97. In'a proceedyig-by scire facias, on 
. a forfeited recognizance, it is not neces- 
sary to enter a formal discontinuance as 
to those on whom process is not served ; 
Tby taking judgment against the others, 
the cause is in law and in fact, discon- 
tinued as to them. The Stdi^ Y.'-Hmson, 
4 A. E. 671. * V " . 

98. When a judgment «i5t "is rendered 
on a forfeited recognizance, the scire 
facias may be either joint or several; 
but after a final judgment against recog- 
nizors for several sums, the judgment is 
several against tliem, and all subsequent 
proceedings must be several. Hoivie v. 
The /S'tefe, 1 A.-R..113. 

99. Where a judgment vu'st lias been 
rendered against joint and severdl recog- 
nizors, some of whom have regularly 
executed and acknowledged the recogni- 
zance, the question, whetiier the others 
are bound as recognizors, cannot be rais- 
ed upon a joint demurrer to a scire fa- 
cias against all the parties to the judg- 
ment nisi. Hall v. The State, 9 A: R. 
827. "■■ \ , , 

100. To sustain a scire facias on a for-' 
felted recognizance, the recognizance 
must appear to have been taken and re- 
turned as directed by sttitute. Lloijcl v. 
The State, Minor, 3-1. ' 

101. A scire facias is the proper rem- 
edy for recovering the penalty on a for- 
feited recognizance. Ih. 

102. A scire facias, on a forfeited re- 
cognizance, is a mere notice to the re- 
cognizors, to show cause why the judg- 
ment nisi should not be made final; and 
a discontinuance as to any one or more 
of the parties, will not operate a discon- 
tinuance as to alL Hall Y. The State, 15 
A. R. 431. 

103. Where two writs of scire facias, 
on a forfeited recognizance, are return- 
ed, nihil, by the sheriif of tlie county in 
Avhich the recognizance was enter.ed into, 
it is equivalent to a service ; but two such 
returns, by the sheriii of a difierent 
county, will not have the same effect. Ih. 

104. Where a recognizance to keep 
the peace, requires the accused to ap- 
pear at a certain term of the court, if no 
proceedings are .then taken upon it, he 
■is discharged ; a forfeiture cannot beta- 



ken at a subsequent term. Goodicin v. 
The Governor, 1 S. & P. 405. 

105. A judgment upon a recognizance, 
may be rendered ' against the principal 
and his sureties, in the same entry, if it 
d'escribes the recognizance, and is enter- 
ed for the sum for which each is bound. 
Smith V. The State, 7 P. 492. 

106. A judgment rendered on a for- 
feited recognizance, must follow the con- 
dition ; if that is joint, the judgment 
must be ioint also'. The State v. Hinson, 
4 A. R. 671. 

107. A judgment cannot be>rendered 
against the sureties to a recognizance, 
for a larger sum than the penalty. lb. 

• 108. A recognizance for the appear- 
ance of a party accused, is forfeited by 
his failure to appear ; it is not necessary 
therefore, that his sureties should be 
called to, produce him. lb. 

109. A recognizance^ conditioned for 
th^ appearance of a party at a particu- 
lar term of the court, to answer a spe- 
cific charge against him, and not to de- 
part without leave of the court, may be 
estreated at a subsequent term, if an in- 
dictment is found at the appearance 
term, and the accused does not appear. 
Ellison V. The State, 8 A. R.273. 

110. A judgment nisi need not recite 
the recognizance; if the entry shows that 
the accused was required to answer the 
charge, which the recognizors stipulated 
he should answer, that he failed to ap- 
pear, and that the recognizance was for- 
feited, it is sufficient. Hoivie v. The State, 
1 A. R. 113. 

111. A judgment may be rendered 
for the penalty of a recognizance, though 
it exceeds the amount of the forfeiture 
which the law imposes upon a conviction 
of the ofiense, with which the principal 
recognizor is charged. ' Badger v. The 
State, 5 A. R.21. • 

112. When a judgment is erroneously 
entered ' severally against the parties 
bound by a joint recognizance, the entire 
proceedings as to all the parties will be 
reversed upon the writ of error sued out 
by one only, and the cause remanded, 
that its unity may be preserved. Hlli- 
son V. The State, 8 A. R. 274. 

113. j/When several judgments are ren- 
dered against recognizors, they cannot 
join in a Writ of error. Howie v. The 
State, 1 A. R. 113. Farr y. The State, 
6 A. R. 794. 

114. But since the act of 1843, "to 



136 



BAILMENT. 



authorize amendments of writs of error," 
the writ may be amended, by striking 
out all the parties but one, and then it 
■will remove the cause as to him. Farr v. 
The -State, 6 A. R. 794. 

115. A proceeding by scire facias, up- 
on a forfeited recognizance, is a suit, 
and for its successful prosecution, the at- 
torney may claim a fee of six dollars, to 
be tazed in the bill of costs. Smith v. 
The State, 7 P. 492, 

116. But when a judgment msi upon 
a recognizance, is set aside before a 
scire facias isanes, upon the payment of 
all costs, neither an attorney's fee, nor 
the county tax, is proper to be taxed in 
thp bill of costs. Weisshiger v. The 

. State, II A. V^. MO. 



BAILMENT. 

I. Of Bailments generally. 

(a) .What' constitutes a Bailmeni 
ih) Rights of Bailee, 
(c ) Liabilities of Bailee. 

II. Common Carriers. 

III. Pleadings and Evidence. 



I. Of Bailments generally. 
(a) What constitutes a Bailment. 

1. A bailment is a qualified, limited, 
or special property, in a thing capable of 
absolute ownership. Magee v. Toland, 
StF. S6. 

2. To make out a case of bailment, 
there must be a contract, either express 
•or implied. Bohannon v. Springfield, 9 
A. R. 789. 

3. The mere taking 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 direc- 
tion, will not support a declaration by 
the owner of the cotton seed, against the 
overseer, for the value of it, as upon a 
bailment to him. lb. 

(b) Rights of Bailee. 

4. An agreement, by which mares and 



colts are placed with another to be fed 
during the winter, the stock 'to be liable 
for the expense of keeping them, and the 
bailee to have the power of selling them 
to pay the expense, does not merely give 
the bailee a lien on the stock for the ex- 
pense of their keep,' but by the terms of 
the contract, gives him the right to sell 
so much as may be .necessary to dis- 
charge the debt due for their keeping: 
If he sell more than sufficient, it is a con- 
version, and for such excess he is liable 
in trover. Whitlock v. Heard, 13 A. R. 
776. 

5. A purchase by the bailee himself, 
at a public sale by auction, is not abso- 
lutely void, but voidable at the election 
of the party, whose title is sought to be 
divested by such sale. lb. 

6. A pledge made to secure the pay- 
ment of a specific debt, cannot be held 
by the bailee as security for any other 
debt, unless it is so agreed. St. John v. 
O'C'owie/, 7 P. 467. 

7. The bailee of a sheriif, to whom the 
property of a third person which has 
been levied on, has been delivered upon 
a contract to return it at the sale day, has 
such a property in the thing bailed, as 
will authorize him to sue a wrong-doer, 
for depriving him of the possession. Cox 
v. Easley, 11 A. R. 363. 

8. A bailee of hogs running at large 
in the range, may maintain an action of 
trespass for an injury done to them. 
Hare v. Fuller, 7 A.'R. 717. 

9. Neither the bailor nor bailee of a 
personal chattel, has an absolute prop- 
erty in it: Each has a qualified proper-' 
ty, and is entitled to an action, if the 
chattel be damaged or taken away, the 
bailee, on account of his possession, and 
the bailor, because the possession of the 
bailee, is his. Magee v. Toland, 8 P. 36. 
Goodu-yn v. Lloyd, 8 P. 237. 

(c) Liabilities of Bailee. 

10. A ginner of cotton, agreed to re- 
ceive the plaintiff's cotton, and gin it in 
preference to all other cotton, but ginned 
other cotton previous to ginning a part 
of the plaintiff's; the gin and cotton be- 
ing afterward burnt, though without 
negligence, the ginner is liable. Patti- 
son Y. Wallace, 1 S. 48. 

11. The corporation of Mobile receiv- 
ed powder, and under an ordinance to 
that effect, stored it out of town ; Avith- 



BAILMENT. 



13T 



out negligence on their part, the powder 
was stolen: The corporation is not lia- 
ble, though they receiYed a reward for 
storage. Moore y. The Mayor of Mobile, 
1 S. 284. 

12. Where a person receives business 
within the line of his occupation, the 
law will presume he is to receive ordi- 
nary compensation for it ; and he will 
therefore be held to strict diligence in 
the discharge of the business. Morrison 
V. Orr, 3 S. & P. 49. , 

13. But if business be intrusted to a 
person, out of his ordinary profession, 
the law presumes it to be a mere naked 
agency, in which compensation is not an 
ingredient. lb. 

14. If a person undertakes voluntari- 
ly to perform services for another, with- 
out reward, such person is not liable for 
a non-feasance. lb. 

15. Where an agency is to be per- 
formed which is not within the line of 
business of the agent, but for compensa- 
tion, he Avill be held only to the exercise 
of ordinary diligence. lb: 

IGf Where a person deposits notes in 
the hands of another to indemnify him 
against certain liabilities, when these 
liabilities are discharged, the depositor 
may claim a return of the notes, or their 
proceeds, if collected. St. JohriY.. O'Con- 
nel, 7 P. 467. - 

17. And if the bailee has put them be- 
yond his control, it is a conversion for 
which he is liable in trover. lb. 

18. And the amount expressed upon 
the face of the notes, with interest from 
their maturity to the time of conversion, 
and interest on the aggregate, from that 
time to the time of the verdict, is the 
measure of damages. lb. 

19. On a deposit or bailment of money, 
to be kept without recompense, if the 
bailees, without authority, attempt to 
transmit the money to the bailor, at a 
distant point, by mail or private convey- 
ance, and the money is lost, they are re- 
sponsible to the bailor. Stewart v. Fra- 
zier, 5 A. K. 114. 

20. But the loss of the money in the 
attempt to transmit it to the bailor, is 
not a conversion, and the bailees are not 
liable to an action without a demand. 
lb. . ■ 

21. Where one receives a- chattel from 
another, under a stipulation in writing, 
that he will return 'it "whenever called 
for, in good repair, and free from ex- 

1—18 



pense,'' he must deliver it on demand, or 
excuse the non-delivery: If, when de- 
mand is made by a third person, in 
whose hands the writing was placed for 
that purpose, the bailee does not call on 
him to produce his authority, but places 
his refusal upon the ground, that the 
chattel had been removed from his pos- 
session by some other person, he cannot 
object, in his defense to an action of tro- 
ver, that the agent did not show an au- 
thority when the chattel was demand- 
ed. Spence v. Mitchell,- 9 A. R. 744. 

22. Where money wagered, is depos- 
ited with a stakeholder, it may be re- 
claimed by either party before it is paid 
over, by a notice not to pay it: A spe- 
cial demand, however, would be neces- 
sary to enable the party giving notice, 
to maintain an action for the sum depos- 
ited by him. Shackleford v. Ward, 3 
A." R 37. Wood V. Duncan, 9 P. 227. 

23. But no special demand is necessa- 
ry to entitle the party giving notice, to 
maintain an action against the stake- 
holder, where the latter afterward paid 
the money to the svipposed winner. Ivei/ 
V. Phifer, 11 A. R. 535. Shackleford v. 
Ward, 3 A. E. 37. Wood v. Duncan, 9 
P. 227. 

, 24. Where a hired slave, leaves the 
hirer and returns to the owner, and the 
hirer makes a demand upon the owner, 
and consents to take the slave if returned 
the next day, a second demand is unne- 
cessary. Wier V. Biiford, 8 A. R. 134. 

25. The covenant of the hirer of a 
slave, to return it to the owner at the ex- 
piration of the term, is discharged by the 
death of the slave. • Pernj y. Hewlett, 5 
P. 318. 

26. But the hirer is bound on his cov- 
enant, to pay the price agreed on, not- 
withstanding the death of the slave be- 
fore. the term of service expires, lb. 

27. Where however, on an entire con- 
tract, by covenant, to pay a particular 
sum for the hire of two slaves for a cer- 
tain term, one of the slaves dies, and the 
other is taken by the owner out of the 
possession of the hirer, without his con- 
sent, before the expiration of the term, 
the covenant of the hirer, to pay for the 
hire of both slaves, is discharged. lb. 

28. An agreement, by which mares 
and colts are placed with another to be 
fed during the winter, the stock to be 
liable for the expense of keeping them, 
and the bailee to have the power of sell- 



138 



BAILMENT. 



ing them to pay the expense, does not 
merely give the bailee a lien on the stock 
for the expense of their keep, but by the 
terms of the contract, gives him the right 
to sell so much as maybe necessary to 
discharge the debt due for their keeping: 
If he sell more than sufficient, it . is a 
conversion, and for such excess he is lia- 
ble in trover. Wliitlock v. Heard, 13 A. 
K. 77&. 

29. A bailee of slaves, who recognizes 
the title of the owners, two of whom, are 
infants, and, acting in good faith, keeps 
them subject to delivery whenever legal- 
ly demanded, but who, in consequence 
of instructions from the guardian of the 
infants, refuses .to deliver them to the 
other joint owners, without his authori- 
ty, is not chargeable in equity, with 
what the slaves would have hired for, 
but only with the value of their services, 
after deducting the expense of feeding 
and clothing them. Leach v. West, 16 
A. E.250. 



II. Common Carriers. • 

30. In an action on the case against 
the owners of a steam-boat for the loss 
of a cash letter, the plaintilF having 
proved that the boat was engaged in car- 
rying goods and merchandise generally 
for hire, and the general custom of boats 
engaged in similar business, the defend- 
ants may explain the usage, by show- 
ing, that no fx-eight or compensation was 
ever charged, or allowed upon remit- 
tances of money, unless some evidence,/ 
was given by the boat, of i^s receipt, in 
which event only, a charge was made. 
Knox V. Rives, 14 A. K. 249. 

31. It is not necessary to constitute one 
a common carrier, .that a stipulation 
should be entered into as to the amount 
of freight to be paid: But unless aright 
to compensation exists, the common law 
liability of a common carrier is not cre- 
ated, though there may be the responsi- 
bility of a mandatory incurred. lb. 

32. Where the proof shows the delive- 
ry of a letter, or package containing 
money, to be carried between two places, 
at each of which is apost-officc, a recov- 
ery may bo had on a count charging 
the defendant as a bailee to deliver the 
money on request, even if the contract 



to carry is conceded to be invalid, as 
opposed to the post-office laws. Hosea 
Y. McCronj, 12 A. TI.Z49. ■ 

33. Although ordinarily a steam-boat 
may not be compelled to take charge of 
a cash letter, yet if the general usage of 
boats in a particular trade to take charge 
of such letters is shown, the. delivery of 
such a letter to a particular boat, will be 
governed by this common usage. lb. 

3'4. The delivery of a cash letter to 
the clerk of a steam-boat, is a delivery to 
the master for the purpose of charging 
him; and it is not necessary to show a 
special authority to the clerk to receive 
cash letters, when a general usage of 
bo'ats in the trade is to receive them. 
lb. 

35. In an action against carriers, in 
form ex delicto, all, or any part of the 
joint owners of a vessel or otlffer vehicle 
of transportation, may be joined as de- 
fendants, and all, or any part of the de- 
fendants may be convicted. Jones v. 
Pitcher, 3 S. & P. 135. 

36. In assumpsit against carriers, all 
the joint owners must be joined as de- 
fendants, and all must be convicted, or 
none; yet a , non-joinder can only be 
taken advantage of by plea in abate- 
ment, lb. 

37. Joint owners of steam-boats, or 
other vessels, for the time being, may be 
viewed and treated as partners in re- 
spect to all liabilities incurred by the 
A'essel; and under the statute of 1818, 
the plaintiff may recover against all or 
part of those who are made defendants. 
lb. Sproivl V. Kellar, 4 S. & P. 382. 

38. Common carriers are responsible 
for the safe delivfiry of all goods intrust- 
ed to them, or their agents, or servants, 
unless the loss is occasioned by the act 
of God, or of the public enemy. Jones 
V. Pitcher, 3 S. & P. 135. 

39. The owners of steam-boats engaged 
in the transportation of goods for per- 
sons generally, for hire, are common 
carriers, lb. 

40. The act of God, which will ex- 
cuse a carrier, must be the immediate, 
and not the remote cause of the loss. lb. 
Sproivl V. Kellar, 4 S & P. 382. 

41. The expressijOn, act of God, de- 
notes natural accidents, such as light- 
ning, earthquakes, and tempests ; and 
not accidents arising from the negli- 
gence of man. Jones v. Pitcher, 3 S. & 
P. 135. 



BAILMENT. 



139 



42. The Tivords, perils of tJie sea, though 
strictly denoting natural accidents pecu- 
liar to that element, have, in some in- 
stances, been held to extend to events 
not attributable to natural causes ; as a 
capture by pirates on the high sea, and 
a case of loss by collision by tvf o ships, 
where no blame is imputable to either, 
or at all events, not to the ship injur- 
ed, lb. ■ 

43. Causes to excuse the liability of 
ship owners and m'asters, besides those 
of the acts of God, or the public enemies, 
must be such as are expressly, provided 
for, by the contract. lb. 

44. The " dangers of the river," and 
"the perils of the seq,," may be consi- 
dered the same. lb. 

45. If a loss is sustained, in conse- 
quence of the sinking of a boat, which 
the employment of prudence and skill 
on the- part of its proper officers could 
have pj-evented, the owners are liable. 
Ih. 

46. A custom among the masters of 
.steam-boats, for ascending and'descend- 
.ing boats, to go- on diiferent sides of the 

river, would appep,r to be reasonable and 
salutary, and to bear a strong analogy 
to a rule sanctioned by the common law 
in relation to ships at sea ; and if there 
be such a custom among the masters, 
they are bound to observe it, or, if they 
fail, it will be at the peril of the owners. 
lb, ^ 

47. Two part owners of a steam-boat 
agreed to sell their interest, and to exe- 
cute a title at a future day, and after 
payment of the purchase money; the 
vendees o.greed to pay therefor a certain 
sumi to be discharged in freight, and to 
cause the boat to be insured, and place 
the policy in the possession of the ven- 
dors, as collateral security; they were 
exercising the right of ownership, and 
sharing the profits of the boat: Held, 
that this was a transfer- of the right of 
the vendors in the boat, and discharged 
them from all subsequent liabilities in- 
curred by it. Ih. 

48. The strict rule in relation to a 
carrier of goods, for hire, does not apply 
to the conveyance of slaves as passen- 
gers. Williams v. Taylor, 4 P.' 234. - 

49. The owner of a steam-boat, who 
hires a slave to do business on the 
boat, is" liable to the master, only for 
gross negligence, if the slaA'^ be killed. 
lb. 



50. If the master, or his agent who 
hired the slave on the boat, knows of a 
defect in it, when the contract is made, 
he takes upon himself the risk of acci- 
dents and injuries from such defect. 
lb. 

51. Trustees to whom a boat has been 
conveyed, with power to receive the 
profits for a limited time, and at the ex- 
piration of the period, to sell it, and ap- 
ply the proceeds to the payment of the 
debts due from him who created the 
trust, are not liable, if the slave hired on 
the boat is killed, unless at the time of 
the death, they had a right to the pos- 
session of the boat. lb. 

52. Nor can the acts of one trustee 
affect another, without proof that the 
latter authorized them. lb. 

53. The shipper of cotton cannot re- 
cover for its loss, of all the owners of a 
boat carrying goods, &c. for hire, where 
he makes- a special contract with some 
of the joint owners, (without the knowl- 
edge of the others,) by which the freight 
is to go in extinguishment of a demand 
of the shipper against the ovmers with 
whom the contract was made. Jones v. 
Eims, 9 P. 236; 

54. A public ferryman, who has given 
bond as required by law, is a common 
carrier. Babcoch v. Herbert, 3 A. R. 
392. 

55. But the owner of a ferry, is 
not liable for losses in crossing it, 
if it is rented, and in possession of 
the tenant. Ladd v. Cliotard, Minor, 
366. 

56. If a carrier by water, stows goods 
upon deck, ^without the consent of the 
owner, and they are washed overboard 
in a gale, he is responsible for the loss. 
Waring v. Morse, 7 A. R. 343. ^ 

57. In an action by a carrier to recov- 
er freight, if part of the goods shipped 
have been lost by the carrier's neglect, 
the shipper may recoupe their value. 
lb. 

58. Where a carrier undertook to de- 
liver goods at a certain place, but having 
deposited them on the way, a part of 
them was taken away by mistake, and 
the bailor refusing to receive the remain- 
der, the person who took the part away, 
received the other part, and paid the car- 
rier for the whole, it was held, that tro- 
ver would lie against the carrier for a 
conversion of all the goods. Bidlard v. 
Young, 3 S. 46. 



140 



BAILMENT. 



III. Pleadings and Evidence. 

59. In an action against a bailee, for 
not delivering a deposit, it is only neces- 
sary to aver its reception, and a failnre 
to deliver it, Tvhen demanded. Moody v. 
Keener, 7 P. 218. 

60. Where the deposit is 'alledged to 
have consisted of bank notes, it need not 
be stated by what bank the notes were 
issued; a general description is suffi- 
cient, lb. 

61. Nor is it necessary to alledge, that 
the defendant continued to have the de- 
posit in possession ; if he parted with it 
lawfully, or without culpable neglect, it 
is matter of defense ; nor is an averment 
necessary, that a reward was tendered 
for transportation, or safe-keeping of the 
thing deposited. lb. 

62. Whenever a contract includes a 
bailment, and it is broken by the bailee, 
either case or assumpsit may be brought 
by the bailor : A count, setting out a 
contract, to perform specific acts, with 
respect to a note deposited for collection, 
and showing a breach, is a count in as- 
sumpsit. The Bank of Mobile v. Hug- 
gins, 3 A. R. 206. 

63. In a declaration against a carrier 
for the loss of goods, it is necessary to 
aver a delivery of the goods to him ; and 
the omission to make such an averment, 
would be fatal on general demurrer. 
Jordan v. Hazard, 10 A. R. 221. 

64. It is necessary also, to alledge, 
that the defendant accepted, or undertook 
to carry the goods. Sommerville v. Mer- 
rill, 1 P. 107. • 

65. An averment in a declaration, 
that the defendants were joint owners of 
a steam-boat, employed in transporting 
cotton and other merchandise, for hire, 
and copartners in freighting, is suffi- 
cient to authorize a recovery against 
them as common carriers. Jones v. 
Pitclier, 3 S. & P. 135. 

66. A sworn copy of a steam-boat 
register, from the records of the custom- 
house, is not prima facie evidence of 
ownership, even against the party upon 
whose affidavit it purports to have been 
granted, without further proof of the 
fact. lb. 

67. In an action against a ginner of 
cotton, for cotton lost by fire, the plain- 
tiff may prove the usual custom of gin- 
ners as to carrying fire about their gin 
houses ; also the custom of the witness, 



if eonformal)le to the general usagoj 
Maxioell v. Eason, 1 S. 514. 

68. A demand of goods bailed, is not 
always necessary, to support an action 
by the bailor, against the bailee ; as in 
case of their tortious conversion or de- 
struction. Coiliran v. Moore, 1 A. R. 
423. 

69. Whether a bailee is liable, without 
demand, for a sum of money deposited 
with him, is a question of fact tor the 
jury to determine. Derrick v. Baker, 9' 
P. 362. 

70. In an action on the case against a 
Carrier, to recover damages for the loss 
of cotton, a bill of lading is not, without 
proof of its execution, competent evi- 
dence. Peck V. Binsmore, 4 P. 212. 

71. But the production of a bill of la- 
ding, is an admission by the plaintiff, 
that the undertaking of the carrier was 
in Avriting, and if he fails to prove the 
written contract, he has no right to prove 
a parol agreement, not in writing, to 
transport the cotton. lb. 

72. Evidence, that the cotton belonged? 
to tha plaintiff, and that the witness 
shipped it as his agent, is incompetent, 
after the rejection of the only testimony 
of an undertaking on the part of the car- 
rier, to carry the cotton. lb. 

73. G was the owner of a ferry over 
the Coosa river, which was managed by ' 
E for a share of the profits : During high 
water, when the ferry was impassable, E 
Avas in the habit of taking the boat, and 
the hand who assisted him at the ferry, 
and conveying passengers over a creek 
which emptied into the river above the 
ferry, to enable them to cross the river 
at another point : Upon one of these oc- 
casions a wagon with its lading, was lost 
by the negligence of the ferryrnan: Held, 
that to show that the ferry over the 
creek, was an appendage of the ferry 
over the river, it was admissible to prove 
the transportation of passengers by E, 
across the creek, as well after, as before 

. the act which occasioned the loss. Gar- 
ner V. Green, 8 A. R. 96. 

74. In an action by a warehouseman, 
to recover money advanced on cotton 
stored with him, but afterward burnt, 
the defendant may prove, that the 
cotton was destroyed by the negli- 
gence of the plaintiff, and recoupe the 
damages. Hatelieit v. Gibson, 13 A. R. 
587. S. P. Waring v. Morse, 7 A. R. 
343. 



BANKRUPTCY. 



141 



BANKRUPTCY. 

I. Effect of decree in bankruptcy. 

(«) What debts are discharged, or not ; 
and herein of the rights of bank- 
rupts. 

(h) Effect upon judgments, executions 
and liens. 

(c) Effect upon suits instituted by, or 
against the bankrupt. 

{(l) Rights of the assignee, after decree ; 
and herein of assignments by the 
bankrupt. 

II. Of pleading the discharge, and 

WHAT WILL avoid it; AND HERE- 
IN OF promises' BY BANKRUPTS TO 
PAY A DISCHARGED DEBT. 

III. Competency of bankrupt, as a 

WITNESS. 



I. Effect, OF decree in bankruptcy. 

(a) What debts are discliarged, or not; 
and licrein ofilie rights ofbanknijjfs. 

1. A bankrupt has an inchoate right 
to the property which he may accjuire 
during the interval which must elapse 
between the interlocutory and final de- 
cree in bankruptcy ; but as the creditors 
have the right until the final decrete and 
certificate granted, to coerce payment of 
their demands, and may therefore seize 
such property by execution, a court of 
chancery will interfere by injunction, 
and protect the bankrupt in the enjoy- 
ment of such property, until it can be 
ascertained whether he will obtain his 
discharge, the creditor being protected 
by an adecjuate indemnity. Mosby v. 
Steele, 7 A. R. 299. 

2. The chancery court of the state in 
which the debtor resides, and not the 
federal court, is the proper tribunal to 
afford relief in such a case. lb. 

Z. A decree in bankruptcy, obtained 
according to the statute, operates at once 
as a. discharge of all the debts of the 
bankrupt, whether reduced to judgment 
or not. McDoncjald v. Reid, 5 A. R. 810. 

4. By the third section of the bank- 
rupt act of 1841, not only the property 
• in possession, but actions pending, and 
mere rights of action, of every one who 
is regularly declared a bankrupt, vest eo 



instanti, in the assignee appointed for 
that purpose. Butler v. The Merchants' 
las. Co., 8 A. R. 146. 

5. The bankrupt act of 1841, does not 
restrain a creditor of one, who has avail- 
ed himself of its benefits, from suing on 
his demand, but merely arms the bank- 
rupt with a complete defense to the suit, 
until it is shown that his certificate was 
obtained by fraud, or that the debt comes 
within some of the exceptions, mentioned 
in the act. Cogburn v. Spence, 15 A. R. 
549. 

6. The bankruptcy of the principal 
obligor in a penal bond, does not dis- 
charge the sureties. Garnett v. Boper, 
10 A. R. 842. 

7. A discharge in bankruptcy, will not 
protect the surety of a guardian of a mi- 
nor, on his ofiicial bond, against a statute 
judgment obtained against him as such, 
surety by the return of no property 
to an execution against his principal, 
though the return was made after he ob- 
tained his discharge. Turner v. Esselman, 
15 A. -E. 690. 

8. A trustee is not discharged Troro. 
liability to his cestui que trust, by a dis- 
charge in bankruptcy, whether he has 
retained the trust fund in his hands, or 
has wrongfully paid ■ it over to another. 
Pinliston V. Brewster, 14 A. R. 315. 

9. A factor empowered to sell cotton, 
who converts the proceeds to his own 
use, is not precluded by the act of con- 
gress from taking the benefit of its pro- 
visions as a bankrupt: The "fiduciary 
capacity" spoken of in that act, is a trust 
proper. Austill v. Crawford, 7 A. R. 
335. 

10. A certificated bankrupt, is discharg- 
ed from all surety debts, though paid by 
the surety after the Imnkrupt obtains 
his discharge, and is therefore a, compe- 
tent witness for the surety in a suit be- 
tween him and the creditor. Kyle v. 
Bosticl; 10 A. R. 589. 

(b) JSffect ir.po7i judgments, executions 
and liens. 

11. Where a judgment is recovered 
against a person, who is afterward de- 
clared a bankrupt, execution may be is- 
sued upon it, notwithstanding the certi- 
ficate of discharge : The remedy of the 
bankrupt is, a motion to the court to set 
the execution aside, on the ground of the 
discharge : but when such a motion is 



142 



BANKRUPTCY, 



made, the creditor, may impeach the 
6o«aj^d(?6' of the discharge. Cogburn \. 
Spence, 15 A. K. 549. _ • 

12. Such an execution being only 
voidable, a sheriff who levies it upon the 
property of the bankrupt, is not liable 
to an action for doing so. Ih. 

13. Where a defendant in execution 
sets up his discharge and certificate as a 
bankrupt, by a petition, upon vrhich a 
supersedeas is awarded, it is competent 
for the plaintiff to impeach the same, for 
any of the causes provided by the act of 
congress of 1841, and make up an issue- 
to try the facts. Mabry v. Herndon, 8 
A. E. 849. 

14. The levy of an execution issued 
after the defendant has made applicai- 
tion for the benefit of the bankrupt law, 
but before he obtains his discharge, may 
be quashed by the court out of which it 
issued, on motion. McDougald v. Beid, 
5 A. R. 810. - _ 

15. Where an execution is levied on 
land, and the defendant in execution 
was discharged as a certificated bank- 
rupt, after the judgment, but previous 
to the levy, the execution and levy can- 
not regularly be quashed on his motion. 
Freeny v. Ware, 9 A. E,. 370. 

16. It is no sufiicient return to a ca. 
sa., that the defendant, after it was 
placed in the officer's hands, applied for 
the benefit of the bankrupt law of 1841. 
jRobb V. Powers, 7 A. R. 658. 

17. A motion against a sheriff, for 
failing to return an execution, which 
had issued in favor of a plaintiff, who,' af-^ 
ter the rendition of .the judgment, was 
declared a bankrupt, must be made in 
the name of the assignee in bankruptcy. 
Gary v. Bates, 12 A. R. 544. 

18. The lien of a judgment, or Jieri 
facias, is preserved according to the 
right of the creditor at the time the 
bankruptcy is established ; if the lien is 
then absolute, it completely overrides 
the decree, and the creditor will be let in 
to the enjoyment of its fruits. Doremus 
V. Walker, 8 A.' R. 194. S. P. Freeny v. 
Ware, 9 A. R. 370. 

19. A mortgage is not avoided by the 
discharge of the mortgagor as a bank- 
rupt, under the act of congress of 1841. 
Steioart v. Anderson, 10 A. R. 504. 

20. A executed a mortgage to P in 
1841, to secure certain sums of money, 
and also to secure the payment to a cer- 
tain bank, liy A, of a certain sum due \ 



from P, and for which P had mortgaged 
to the bank, the same premises, in 1887, 
Avith a power of sale ; in February, 1842, 
A was declared a bankrupt; in May, the 
mortgaged premises were sold under the 
]30wer of sale in P's mortgage to the 
bank, in consequence of A's failure to 
p'ay the debt secured by it, and A be- 
came the purchaser, and received a deed 
for the property ; in July A received his 
discharge in bankruptcy : Held, that A 
did not acquire an absolute title to the. 
premises, but held them in subordina- 
tion to the mortgage of 1841, so far as the 
debts intended to be secured thereby 
were unsatisfied; and this, although 
that mortgage contained no warranty of 
title. lb. • • 

21. A judgment, rendered against a 
bankrupt, before petition filed, is not a 
lien on real estate, held by him under an 
equitable title merely. Powell v. Knox, 
16 A. R. 364. 

(c) Effect upon suits instituted by, or 
against the banhntpt. 

22. An application for the benefit of 
the bankrupt law, by one against whom 
a suit is commenced, does not justify a 
continuance of the cause. Qivens v. 
Rabbins, 5 A. R. 676. 

23. If, after an action is commenced, 
the plaintiff becomes a bankrupt, the de- 
fendant may plead that fact in bar. Lur 
cy V. RocMt, 11 A. R. 1002. 

24. But the plaintiff's assignee may 
become a party, by motion, and pros- 
ecute the suit in his own name, so 
that the plea Avill be rendered inop- 
erative, lb. Brooks v. Harris, 12 A. 
R. 555. 

25. A plea by the defendant, that the 
plaintiff was declared a bankrupt jjejz-- 
dente lite, need not alledge any thing in 
respect to the jurisdiction of the court, 
in which the proceedings in bankrupt- 
cy were had ; it will be intended that 
they were in the proper tribunal. La- 
cy V. Bockett, 11 A. R. 1002. 

20. Semble: A plea that one of the ^ 
plaintiffs, who sue as partners, was de- * 
clared a bankrupt, pendente lite, is good. 
lb. 

27. If the complainant in a bill to en- 
join a judgment, becomes a bankrupt, 
after the injunction is dissolved, and the 
money collected, his assignee may be 
made a party to the cause, when contin- 



BANKRUPTCY. 



143 



lied to recover the money back. Bran- 
don V. Cahiness, 10 A. R. 156. 

28. Where one of the defendants 
against whom relief is sought, by a bill 
in chancery, is declared a bankrupt, the 
complainant will be allowed reasonable 
time, to bring the proper parties before 
the court, by an amendment, or supple- 
mental bill. Bugely v. Bohinson, 10 A. 
E. 703. 

29. Where judgment was rendered for 
the defendant, in an action by one per- 
son for the use of two others, and after- 
ward, the nominal plaintiff and one of 
the beneficiaries, died, and the other was 
declared a bankrupt, it was held, that a 
writ of error to revise the judgment, 
would not lie in the name of the person- 
al representative of the nominal plain- 
tiff; and, that the writ could not be 
amended, by making the assignee of the 
survivingbeneficiary, aparty. Armstrong 
v. Adams, 6 A. R. 751. 

(d) Bights of the assignee, after decree; 
and herein of assignments by the 
bankrupt. 

30. Where a husband conveyed, by 
way of release, to his wife, for her sole 
use and benefit, all the right, title, and 
interest he had acquired, by virtue of 
their marriage, to certain stock in an in- 
corporated company, and the right to sue 
the company, for permitting an unlawful 
transfer of the stock, it was held, that 
the conveyance was inoperative at law ; 
and that the rights of the husband at- 
tempted to be released, upon his being 
declared a bankrupt, vested in the as- 
signee in bankruptcy. Butler v. Mer- 
chants' Ins. Co., 8 A. R. 146. 

31. The rights of property of a bank- 
rupt, to Avhich the assignee succeeds, are 
such as the bankrupt could enforce in a 
court of justice; the right, therefore, 
which a bankrupt would have under a 
fraudulent assignment of all his proper- 
ty, would not pass to the assignee. 
Beavis v. Garner, 12 A. R. 661. 

32. P C executed several notes paya- 
ble to S, guardian of M H, with R C as 
surety: R G married the ward, and be- 
came, and was declared a bankrupt: 
Suit being instituted on the notes against 
P C, by the assignee in bankruptcy of 
R C, it was held, that as it did not ap- 
pear that the notes ever passed from the 
guardian to the bankrupt, or that he had 



ever come to a final settlement with the 
guardian, or how the accounts stood be- 
tween the guardian and his ward, the 
ward and her husband could not have 
sued at law upon the notes, and there- 
fore, the assignee in bankruptcy of the 
husband could not sue on them. Chilton 
V. Cahiness, 14 A. R. 447. 

33. In an action by the assignee of a 
bankrupt partner, to recover a debt due 
that partner individually, a debt due the 
defendant from the partnership, may be 
set off. Bean v. Cahhaness, 6 A. R. 343. 

34. A suit by the assignee of a bank- 
rupt, must be brought within two years 
after the decree of bankruptcy, or after 
the cause of action accrues; and if it ap- 
pears on the declaration, that the suit 
was brought after that period, the dec- 
laration is bad, on demurrer. Harris v. 
Collins, 13 A. R. 388. Comegys v. Mc- 
Cord, 11 A. R. 932. 

35. Where a bankrupt, previously to 
his bankruptcy, transferred a due bill 
for a valuable consideration, it was held, 
that his indorsement made after his 
bankruptcy, would invest the indorsee 
with a legal right of action. Smoot v. 
Morehouse, 8 A. R. 370. 

36. The preference given by a bank- 
rupt, by payment, or assignment of ef- 
fects to a creditor, to be void under the 
bankrupt act, must be a voluntary pref- 
erence, not induced by a previous agree- 
ment between the parties, for the credi- 
tor's security. lb. 

37. A. bankrupt, who, after his dis- 
charge, becomes the bona fide holder of 
a note payable to him, which had been 
returned in his schedule, and sold by his 
assignee, is remitted to his original title, 
and may transfer the note by indorse- 
ment, so as to invest the indorsee, with a 
right of action in his own name. Birch 
V. Tillotson, 16 A. R. 387. 



II. Of pleading the discharge, and 

WHAT WILL AVOID IT ; AND HEREIN 
OF PROMISES BY BANKRUPTS TO PAY 
A DISCHARGED DEBT. 

38. Where a bankrupt is sued before 
a justice of the peace, and omits there to 
plead his discharge, he may notwith- 
standing, insist upon it as a defense, 
when the case i^ appealed by him to the 



144 



BANKRUPTCY. 



circuit court. McCanj v. Mabe, 7 A. R. 
35G. 

39. Under the bankrupt laAV, the peti- 
tion must be filed in the district where 
the supposed bankrupt, at the time of 
filing it, shall reside, or have his place 
of business ; and if the district court 
granting his discharge, has not jurisdic- 
tion of the person by reason of residence, 
or place of business, the discharge is 
void. Stiles v. Lay, 9 A. E, 795. 

40. One living with his family in New 
Hampshire, and carrying on business 
there, is a resident of that state, witliin 
the act, although the spring previous to 
filing his petition, and for some years he 
had a commercial establishment in Ala- 
liama, acted as a citizen, and intended to 
remove his family there the next season. 
Ih. 

41. The omission of a bankrupt to 
state the debt sued for, in his petition, 
and to notify the creditors of his applica- 
tion for a discharge, in the absence of 
circumstances evincing an, intention to 
deceive, is not evidence from Avhich fraud 
can be inferred. Fox v. Paine, 10 A. E. 
523. 

42. The fact that the bankrupt, or any 
one for him* pays money, or other thing 
to a creditor, to induce mm to withdraw 
objections to the bankrupt's discharge, 
does not render the certificate of dis- 
charge inoperative. lb. 

43. There is no inhibition in the bank- 
rupt act of 1841, or in the relation which 
the state and federal governments bear 
to each other, or in the grants or re- 
straints of power conferred upon them 
respectively, which denies to the state 
courts the right to entertain an inquiry 
into the validity of a discharge and cer- 
tificate, upon an allegation duly inter- 
posed, that a bankrupt did not render a 
full and complete inventory of his "prop- 
erty, rights of property, and rights and 
credits," but fraudulently concealed the 
.same. Mabry v. Henidon, 8 A. R. 848.' 

44. Whether the discharge and certif- 
icate of a bankrupt may not be impeach- 
ed for fraud, by one not a party to the 
proceedings in bankruptcy, according 
to the principles of the common law, 
without reference to the provisions of the 
act ; and in such case, whether it is not 
sufficient for the pleadings to state in 
what the fraud consists, without giving 
the formal notice which the act seems 
to coutcmplate, qucere. lb. 



45. Semble : A plea which merely al- 
ledges, that the debt sought to be recov- 
ered, is of a fiduciary character, is bad, 
because it states a legal conclusion, in- 
stead of disclosing the facts, that the 
court may determine Avhether the debt 
is founded upon a trust, such as is ex- 
cepted from the operation of the bank- 
rupt act. lb. 

46. It is not an available objection on 
error, that notice of an intention to im- 
peach a bankrupt's discharge and certif- 
icate, was not given until after the 
commencement of the term of the court 
when the cause was triable ; the act of 
congress does not prescribe the time 
Avlien the notice must be given ; if too 
short a notice is given, to allow the ne- 
cessary preparation to be made for trial, 
a continuance should be asked. lb. 

47. The possession of property by a 
bankrupt, at the time of his discharge, 
or immediately after, which by indus- 
try he might reasonably have acquired, 
does not warrant the presumption, that 
he did not make a full sui-render of his 
estate ; but if the value of the property 
is so great, as to make it improbable that 
it was earned since the filing of the pe- 
tition , in bankruptcy, it devolves upon 
the bankrupt to show how he became 
the proprietor of such property, when 
his discharge is impugned for fraudulent 
or wilful concealment. Hargroves v. 
Cloud, 8 A. R. 173. 

48. And where it is shown, upon the 
trial of an issue of fraud, vel nan, in ob- 
taining a discharge in bankruptcy, that 
five years before the bankrupt filed his 
petition, he was the owner of a certain 
slave, which was not embraced in his 
schedule, and that fovir years after his 
discharge, the same slave was in his pos- 
session, the law raises the presumption, 
that he was the owner of the slave dur- 
ing the interim, and "devolves upon him, 
the necessity of showing, that such was 
not the fact. Poioell v. Knox, 16 A. R. 
364. 

49. But the possession of property, 
by a bankrupt, six years after his dis- 
charge, creates no presumption of fraud ; 
nor does the fact, that some time before 
he filed his petition, he owned certain 
property, which Avas not returned in his 
schedule. lb. 

50. On the trial of an issue, Avhcther a 
discharge in bankruptcy was obtained 
by fraud, the bankrupt cannot give in 



1^ 



BANKRUPTCY.— BANKS. 



145 



-evidence, a declaration made by himself, 
tkat a gum of money delivered by him to 
another person; belonged to that person, 
unless made at the time of the delivery, 
so as to form a part of thO' res gestae.. Qil- 
lert V. Bradford,- 15 A, E. 769. . 

51. A^or can, he give in evidence, a 
declaration of a third person, made in 
his presence, that property in his pos- 
session, and used by him in a particu- 
lar business; was used on account of 
such third person. lb: 

52. But the creditor may prove, that 
a ■witness hired slaves from a person, 
who at the time"of the hiring, declared 
himself to be the .agent of the bankrupt 
in making the contract, and that the wit- 
ness' paid, a part of the hire to the bank- 
rupt, lb. 

53. Evidence is also admissible, to 
show the possession of pro].ierty by the 
bankrupt, and the extent of his business, 
even four j-ears after his discharge, so 
as to enable the jury to determine from 
all the facts, whether his estate has been 

• acquired fairly, or by a fraudulent con- 
cealment of his" property when he be- 
came a banknipt. lb. . 

64. A binding promise by a certifi- 
cated banki'upt, to pxiy a debt previous- 
ly owing by him, must be' either uncon- 
ditional, or if,depending on a condition, 
it must be shown that the condition has 
•been performed. The^ Brancli Bank at 
Mobile V. BoyVni, 9 &. R. 320. 

55. The. plaintilf proved, that the de- 
fendant, when applied to for payment of 
the debt, said that he had been decreed 
a bankrupt, but still intended to pay the 
clQbt; that he considered it a debt of hon- 
or, and though discharged as a bank- 
rupt, he did not intend to avail himself 
of that advantage ; that he had some 
work engaged, from the proceeds of 
which he intended to pay the plaintiif : 
Held, that this was mot an absolute, bxit 
a conditional promise, and that to recov- 
er upon it, it is necessary to prove, that 
the state of things exists, upon the hap- 
pening of which^ the promise to pay de- 
pends. Dearing v. Moffitt,^ A. E. 776. 



III. Competency of bankrupt, as a 

■, .• V- " WITNESS. ., '..'■ i;-!-^ - ' 

. 56. >-'A - voluntary bankrupt, isViiot a 
comp.etont witixess for tlie ;assignee in 
l-r-19 .: ; . ■ 



bankruptcy, to establish a debt due the 
bankrupt. CromiDell v. Comegys, 7 A. 
R. 498. 

57. A certificated bankrupt, is dis- 
charged from all surety debts, though 
paid by the surety after the bankrupt 
obtains his discharge ; and is therefore 
a competent witness for the surety, in a 
suit between him and the creditor. Kyle 
V. Bostich, 10 A. E. 589. 

58. A bankrupt vendor, who has re- 
ceived his certificate, and who ofi"ers to 
release all his interest to his grantee 
and assignees, and to whom a release is 
offered by his grantee, is a competent 
witness. Frow \.Bownman, 11 A. E. 880. 

59. A bankrupt who had transferred 
bills of exchange as collateral security, to 
one: of his scheduled creditors, is an in- 
competent witness for the creditor, be- 
cause the'discharge of the debt by the 
bills, woiild release the estate of the bank- 
rupt from its payment, and increase the 
surplus. Houston v. Prewitt, 8 A. R. 
846..- 



-:jANKS. 



I. Of the right of Banking. 

II. Of THE CHARTER, CORPORATE AUTHOR- 

ITY, AND RIGHTS OF BaNKS. 

III. Actions and sumjiary proceedings 

BY, AND against BaNKS. 

{a) Summary proceedings by motion, in 

favor of Banks. 
6) Other actions by Banks, 
c) Proceedings by motion against 

Banks. 

IV. Of Bank Interest. 

V. Liabilities of Banks in general. 

VI. Authority and liability of bank 

OFFICERS. 

VII. Of Bank Notes. 



I. Of THE right of Banking. 

1. Since the adoption of the constitu- 
tion in this state, the right to exercise 
banking powers, is a franchise belonging 
to the state. The State v. Stebbms, 1 



146 



BANKS. 



S. 299. (But see Nance v. Hemphill, 1 
A. K. 551.) 

2. The constitution of this state, does 
not prohibit private banking; whether it 
is against the policy of this state, to per- 
mit individuals to engage in the business 
of private banking, is a question which 
addresses itself to the legislative depart- 

.,;.,, ment of the government, and which the 
<i( courts cannot determine. Nance v. Heinp- 
7w7Z, 1 A.K. 551. - / 

3. The right of individuals to engage 
in the business of private banking, is a 
common law right, and may be exercised 
until forbidden by the legishiture. Ih. 

4. The legislature has the power at aU 
times, to limit the issuance and circula- 
tion of paper currency, when not issued 
under previous express authority. The 
State Y. StebUns, 1 S.299. 



II. Of the charter, corporate author- 
ity, AND RIGHTS OF BaNKS. 

5. A bank charter is a contract be- 
tween ' the state and the stockholders, 
and its oblig'ation cannot be impaired by 
any subsequent law. Loc/icood v. The 
Bank of Huntsville, Minor, 23. The 
State V. The Tombeckbee Bank, 2 S. 30. 

6. The act of 1821, which provided, 
that if any incorporated bank should 
not, after six months from the passing of 
the act, make regular specie payments, 
its charter should be forfeited, was held 
to be void as to .pre-existing banks, as it 
annexed a cause of forfeiture not con- 
tained in the act incorporating them, 
without the consent of the corporation. 
The State v. The Tombeckbee Bank, 2 
S. 30. _ ^ _ 

7. As no express authority to exercise 
banking powers, was conferred on the 
St. Stephen's Steam-boat Company, by 
its charter, a subsequent statute was 
held to be constitutional, which enacted, 
that so much of said charter "as might 
by construction seem to autliorize said 
company, or its agents, to issue any 
tickets, orders, bills, or promissory 
notes," be repealed and made void. The 
Stater. Stebbins, IS. 299. 

8. The act of 1823, incorporating the 
Bank of the State of Alabama, is consti- 
tutional. Li/on V. The State Bank, 1 S. 
442. 

9. The act of 1823, declaring a for- 



feiture of the Huntsville Bank, to ensure 
for a failure to pay specie for its notes, 
did not take from the bank the right to 
sue in its corporate capacity. Huntsville 
Bank v. McGehee, 1 S. & P, 306. (Col- 
lier, J., dissenting.) 

10. The charter of the Planters' and 
Merchants' Bank of Mobile, does not 
give the right to the bank, to recover on 
notes or bills held by the bank, by no- 
tice and motion, unless such notes and 
bills are made negotiable and payable at 
that bank. Levert v. The P. & M. 
Bank, 8 P. 104. 

11. The Tombeckbee Bank is not au- 
thorized by its charter to discount a note, 
unless it be expressed on the face of the 
note, that it shall be negotiable at that 
bank. The United States v. Fay, 9 P. 
465. _ .' ■ . 

12. If a bank is authorized by its char- 
ter to receive money on deposit, wheth- 
er under this power, it may not lawfully 
undertake to collect money on all nego- 
tiable commercial securities, when no 
other act is necessary to be done, than 
to forward the securities to their place of 
payment, and demand and receive the 
money, qucere. Branch Bank at Mont- 
gomery V. Knox, 1 A. E. 148. 

13. Where a bank is authorized by its 
charter to deal in bills' of exchange, and 
discount notes made payable' "at the 
bank, with two or more good and sufii- 
cient securities, it may, under this pow- 
er, undertake to collect bills of exchange 
on other places ; the restriction, if one is 
imposed by these terms, only extends to 
promissory notes. lb. 

14. The act incorporating the Plant- 
ers' and Merchants' Bank of Mobile, is 
a public statute, and will be noticed ju- 
dicially by the courts, although not spe- 
cially pleaded. Craioforcl v. The P. (& 
M. Bank, 6 A. R. 289. 

15. The act of 1843, continuing the 
charter of the Planters' and Merchants' 
Bank, for the purpose of settlement, and 
maintaining suits, applies as well to suits 
^commenced before its passage, as to 
those instituted afterward. lb. 

16. The 40th section of the act incor-. 
poratingthe State Bank, declaring it un- 
lawful for the bank to discount or pur- . 
chase a bill of exchange for a larger 
amount than §5,000, is directory merely ; 
if, therefore, the bank discoimt a bill for 
a larger amount, the contract is not void. 
Bcdcs v. Tlie State Bank, 2 A. R. 451. 



» •■' 



BANKS. 



147 






17. The meaning of the 20th section 
of that act, whicii provides, that the 
bank " shall not deal in articles of goods, 
wares, or merchandise, in any manner 
whatever, unless it be to secure a debt 
due the said bank, incurred by the reg- 
ular transactions of the same," is, that 
the bank shall not buy and sell goods, 
wares, or merchandise,, for the purpose 
of gain; or do the ordinary business of 
a merchant, or trader ; or engage in the 
business of broker, or commission mer- 
chant, lb, (GoLDTHWAiTE, J., dissenting.) 

18. A contract by which the bank lent 
a large sum of money, taking bills of ex- 
change at nine months for ,the payment 
thereof, and receiving at the time, and 
as one of the conditions of the loan, a 
quantity of cotton, with .authority to 
ship it to a foreign port, and sell it for 
the account, and at the risk and expense 
of the owner, and to credit his bill with 
the amount of the nett proceeds, adding 
tlie difterence of exchange between this . 
state, and the place where the cotton 
was sold, is not a dealing in "goods, 
wares, or merchandise," within the pro- 
hibition of the 20th section of the char- 
ter. Ih. 

19. The legal effect of such a transac- 
tion is, that the bills were purchased by 
the bank, and the cotton received as a 
security only, for the paj'ment of the 
money advanced on the bill. lb. Per 
Collier, C. J. 

20. If the construction of the contract 
is, that the money was advanced upon 
the cotton, it was also advanced on the 
bills, and the bills and the cotton are 
primary and concurrent securities ; and 
in that event, a recovery may be had up- 
on the bills, though the transaction, so 
far as it relates to the cotton, was inval- 
id.. 16. 

21. The second section of the act of 
December, 1837, to limit the accommo- 
dations of the presid.ents and directors 
of the bank and its branches, impliedly 
recognizes the right of the bank, to pur- 
chase from any one, bills drawn on cot- 
ton, lb. 

22. And that act, is in effect, an ex- 
pression of opinion by the legislature, 
that the proviso of the 40th section of 
the charter of the bank, is directory 
merely. lb. 

23. A stipulation in such a contract, 
that the bank shall be allowed to retain 
one per cent., will not render the contract 



void; it being evident from the entire 
contract, that the object of the bank 
was, not to obtain the cotton to sell on 
commission, but to sell for the purpose 
of paying the debt; and the stiyjulation 
therefore, cannot be enforced. lb. Per 
Ormond, J. 

24. A bank may appoint an agent to 
transact any business which it may law- 
fully do; and such appointment may be 
by a mere corporate vote. lb. 

25. Corporations, allowed to sue and 
be sued, necessarily possess authority to 
perform by their agents, services inci- 
dent to the commencement or prosecu- 
tion of suits. The P. & M. Bank v. An- 
dretvs, 8 P. 404. 

26. A corporation can do an act in 
jjaifs, by an attorney in fact ; an attorney, 
therefore, acting on behalf of a bank, 
may give the notice to a bank debtor, 
required by statute, previous to a mo- 
tion for judgment. Curry v. The Banh 
of Mobile, 8 F.QQl. 

27. The State Bank is a mere corpora- 
tion, not invested with the attributes of 
sovereignty, and like an ordinary credi- 
tor, must cause a claim of which it is 
the proprietor, to be presented to the ad- 
ministrator of a deceased debtor, within 
eighteen months after the grant of ad- 
ministration. The Bank of Alabama v. 
Gibson, 6 A. R. 814. 

28. A corporation created in another 
state, may sue in the courts of this state. 
Lucas V. The Bank of Georgia, 2 S. 147. 

29. A corporation may assign its ef- 
fects to a trustee, for the .beneht of cred- 
itors. Pope V. Brandoji, 2 S. 401. 

30. The Planters' and Merchants' 
Bank had no power, after the judgment 
of the circuit court declaring its charter 
forfeited, to make a contract, except so 
far as it was authorized to act, by the 
statute providing for the ascertainment 
of the fact, whether its charter was for- 
feited or not. Saltmarsh v. P. &M. Bank, 
14 A. R. 668. 

31. That statute authorizes the bank 
to exert all the powers conferred by the 
charter, for the purpose of collecting its 
debts ; but it has no power to discount, 
or purchase a bill of exchange, as a bu- 
siness transaction ; an averment there- 
fore, in a plea, that the bill sued upon 
was acquired by the bank by discount- 
ing it, is sufficient, prima facie, to show 
that the transaction was unauthorized. 
Jb. 



»U 



V 



>>.*« ' 



148 



BANKS. 



32. II being indebted to the bank, and 
in failing circumstances, to secure the 
debt, the bank received from W, a bill of 
exchange: Held, that though this was 
done without the consent of II, it' was 
authorized by the statute, if the object 
was to secure a debt, otherwise bad, or 
doubtful; but that the bank could not 
engage in traffic upon its assets, by pur- 
chasing bills, by discount, for profit. Ih. 

33. Under the joint resolution of the 
general assembly of the 31st December, 
1842, the Bank of the State of Alabama, 
and its branches, have the power to pur- 
chase real estate sold under executions 
iu their favor. Martin v. The Branch 
Bank at Decatur, 15 A. R. 587.' 

34. A stockholder in a bank, may sell, 
or convey slaves by mortgage to the 
bank, in payment of a debt he owes the 
bank. Governor v. Baker, 14 A. E. 652. 



\\S 



III. Actions and sujimary proceedings 

BY, AND AGAINST BaNKS. 

(a) Nummary proceedings by motion, in 
favor of Banks. 

35. Notice of a motion for judgment 
by a bank, must be given under its cor- 
porate seal ; a party pursuing a summa- 
ry remedy under a statute, must conform 
strictly to its terms. Logioood v. Bank 
of Huntsville, Minor, 23. 

36. To- sustain a judgment reco^^'Tered 
by a bank on motion, the record must 
show, that the certificate of the presi- 
dent, was produced as required by the 
statute, and that it was under the seal 
of the corporation. • lb, 

37. But it is not necessary that' it 
should appear, that the defendants were 
called before judgment. It). 

38. A notice of a motion for judgment, 
issued by a bank, identifying the debt 
claimed, with reasonable certainty, is 
sufficient, though it has not the techni- 
cal precision of a declaration. Lyon v. 
The State Bank, 1 S. 442. Curry v. 
The Bank of Mobile, 8 P. 361. Colgin 
V. The State Bank, 11 A. R. 222. 

39. Such a notice may be served either 
by the sherifi", or a private person. Lyon 
V, The State Bank, 1 S. 442. ' 

40. The certificate of the president of 
a bank, does not require more certainty 
than a notice ; its only object is to prove 



the property of the debt in the bank, and 
doe^ not establish the debt. lb. 

41. In a proceeding by motion,, a dec- 
laration is not necessary, 'nor technical 
special pleading ; though the record 
must show every material fact to have 
been proved. lb. ' . 

42. Though the notice is issued against 
three defendants, a motion and judg- 
ment may be against one only, without 
a discontinuance as to the others. lb. 

43. In a proceeding by notice, uride? . 
the charter of the Sta-te Bank, to charge 
one as the acceptor of a bill of exchange, 
positive proof ijiust be shown in the rec- 
ord, to have been made, of an acceptance 
by him! Walker v. The Bank of Ala- 
bama, A: S. &P. 215. 

44. An allegation in the notice, that 
the president and directors are "the hol- 
ders and owners" of the bill of exchange' 
su.ed on, is equivalent to an averment, 
that the bill is the property of the baijk.' 
Jb. (Explained in Eohorts v. The Sti^ 
Bank, 9 P. 312.) "/ -^_,;- ', v';- /* 

45. A judgment by default, iacases of 
this cha,racter, is no admission ,of • the 
cause of action ; that must be shown by 
the record to have been proved, whether 
the judgment be by default or other- 
wise, lb. 

46. The notice to the maker or indor- 
ser of a bill or note, which is authorized 
by the act incorporating the Branch of ' 
the Bank of the State of Alabama at 
Montgomery, need not be under the cor- 
porate seal. Branch Bank, at Montgom- 
ery V. Harrison, 2 P.- 540. Curry v. 
The Bank of Mobile, 8 P. 362. 

47. The summary proceeding author- 
ized against the debtoi-s of that bank, 
though diiferent from the common law 
course, .is yet remedial in its charact§i', 
and if substantially pursued, will not be 
defeated by mere technicalities. lb. 

48. To sustain a judgment rendered 
against a debtor of the Tombeckbee 
Bank, on motion, the record must show 
that the certificate of the president of the 
bank, that the debt was the property of 
the bank, was produced. Duncan \. 

The Tombeckbee Bank, 4 P. 181. 

49. Filing a declaration in sucli a fcaso, 
will not so alter the nature of the pro- 
ceeding, as to render the certificate un- 
necessary, lb. ■ . ; 

50. In a summary proceedijrfg. '-Oil a 
bank notice,, 'every thing necessary to 
give the court jurisdiction, and to sus- 



Id 






'.>7 



->:. < » 



'•%•."■ 



BANKS. 



149 



tain its judgment, must aippear on the 
• record. Bates y. The P. & JI. Bank, 8 
P. 99. Ford v. The Bank of Mobile, 9 
P. 471. Andretos v. The Branch Bank at 
Mobile, 10 A. R.375. .■,„ ./ 

51. And where the. record does not 
show, that the certificate of the president 
of the bank, was produced and shown to 
the court, it has no jurisdiction, and 
judgment cannot he rendered. ^^iBafes-y. 
The. P. & M. Bank, 8 P. 99. ^ 

52. Such certifiqate, appended to a 
notice to defendant, attached to the. trans- 
cript, is no part of tlie record, no action 
of the court appearing to have been had 
on it. lb, . " ,- ., ' '' ' ♦ 

53. The charter of the' iPlantefS' 'and 
Merchants' Bank of Mobile, does not 
give the right to the bank, to recover on 
notes or bills held by the bank, by mo- 
tion, unless such notes and bills are 
made negotiable and payable at that 
bank. Levert v. The P. t& M. Bank, 8 
P. 104. _ ^ - 

54. And in .such cases, the record 
must show, that the "note or bill, on 
which the remedy is sought, was made 
negotiable and pa,yable at that bank. 
IbT ^ayre v. TJie Bank of Mobile, 9 P. ' 
423. Ford v. The Bank of Mobile, 9 P. 
471. 

55. The notice issued to the defend- 
ant, and attached to the transcript, is 
not considered as part of the record, so 
as to show the right of the bank to re- 
cover on motion. Levant v. The P. & M. 
Bank, 8 P. 104. 

56. The act of the 30th Jmie, 1837, 
gives the remedy by motion to the bank, 
only on notes and bills, the future ac- 
quisitions of the bank., lb. • 

57. The remedy by motion, being in 
derogation of the common law, the party 
claiming the benefit of it, must show af- 
firmatively that he is entitled to it. lb. 

58. A bank cannot, as indorsee of the 
defendant, maintain a svimmary proceed- 
ing against him as indorser of a- note 
made payable to the order of the maker, 
but not indorsed by him. Lea y. The 
Branch Bank at Mobile, 8 P. 1.19. ■ . 

59. And the certificate of the president 
of the bank, that the paper sued on, is 
really and bona fide the property of the 
bank, will not enal)le"the bank to recover 
in a summary proceeding on such a 
note. lb. 

60. The legislature, in requiring such 
a certificate, did not intend to grant a 



power, but to limit a power already 
given. lb, 

■^6.1. The statute authorizing summary 
proceedings by banks, in collecting 
claims due them, requires the court to 
impannel a jury to try the issue, Avhere 
the claim is contested. Curry v. The 
Bank of Mobile, •& P. 360. 

62.' In cases vv^here bank debtors are 
proceeded against summarily by notice, 
.the judgment,, whether by default or oth- 
erwise, must show affirmativelj'; every 
fact necessary to give tlie court jurisdic- 
tion ; and where, a judgment is by de- 
fault, the , liability of the defendant for 
the debt must also be shown. Po. 

63. But where: an issue is made up, 
the verdict ascertains the 'defendant's 
liability, as in other cases. lb. 

64: An attorney acting on behalf of a 
]^ank,".may give the notice to a- bank 
debtor i-equired by statute, previous to a 
motion for judgment. lb. 

65. The certificate of ■ the president of 
a bank, of the indebtedness of a defend- 
ant, is conclusive of the right of the bank 
to sue, and prima facie evidence of the 
genuineness of the president's signature. 

■BobertsY. Tlie State .Bank, 9 P. 312. 

66. 35ut where tKe certificate of the 
president of a bank, contains no refer- 
ence to the instrument sued on, other 
than its amount, it is insufficient to give 
the court jurisdiction, and too loose and 
indeterminate to be received. lb. (Ex- 
plaining the case of Walker v. The Bank 
of Alabama, 4 S. & P. 215.) 

67. In a proceeding by noticp from a 
bank, the record must show, that the 
certificate of the president was received, 
and acted on by the court below. Bates 
V. The P. & M Bank, 9 P. 370. 

68. To sustain a judgment by default 
on a motion by a bank, under the stat- 
ute, the liability of the defendant must 
be shown by the jiidgment entry, as well 
as by the notice and certificate which 
ai^thorized the court to exercise the sum- 
mary jurisdiction, dements v. The 
Branch Bank at- Montgomery, 1 A. R. 
50. 

69. The president pro tern, of the 
Bri^nch Bank at Mobile, under its char- 
ter, may certify that a note sued on is 
bona 'fide the. property of the bank. 
Bancro'ft v. The Branch Bank at Mobile, 

•1 A. R. 230. ■ , ■ ' 

70. But it cannot be judicially known, 
that a person elected a bank dii-ector hj 






150 



BANKS. 



the legislature, was elected l)j the board 
of directors president jjro tem., though in 
that character he certifies, tiiat a debt 
sought to be recovered by notice, is bona 
fide the property of the bank. Craw- 
ford t. The Branch Bank ■ at Mobile, 7 
A. R. 206. 

71. In a summary proceeding by a 
bank, against one of its delators, it is not 
necessary to alledge in tlie notice, that 
the debt is due and vmpaid ; if the evi- 
dence of indebtedness set out in hoee 
verba in the notice, shows the debt to be 
past due, it is sufficient. . Sale v. The 
Branch Bank at Decatur, 1 A. R. 425. 

72. The certificate of the president of 
a bank, as to th^ property, in the evi- 
dence of debt sued on, must identif}^ it 
with reasonable certainty, and by some 
other description than its amount. lb. 

73. If any person who borrowed mon- 
ey of the State Bank, or either of its 
branches, under the- provisions of the 
act, "to extend thetime <5f indebtedness 
of the Bank of the State of Alabama, 
and its branches, and legalizing the sus- 
pension of specie pajmient of the same,' 
and for other purposes," fails to pay any 
instalment as it falls due, so much of 
the sum borrowed as remains unpaid,' 
becomes due instanter, and the president 
of the proper bank should procped to 
collect it. lb. 

74. But where a note was made for 
the payment of a debt due a Ijank, in 
one, two, and three years, under the 
provisions of the second section of the 
act of the thirtieth of June, 1837, it does 
not become due in tofo, upon a failure to 
pay the first instalment. Lightfoot v. 
The Branch Bank, at Decatur, 2 A. R. 
345. 

75. Where a notice that xi motion- will 
be made against the debtor of a bank, 
for judgment, and a certificate of the 
proprietorship of tlie debt sought to be 
recovered, are found in the transcript of 
the record sent up; and the judgment 
recites, that the plaintiff "produced the 
notice, and certificate of the president of 
th3 bank indorsed thereon," it will be 
intended, that the notice and certificate 
found in the transcript, were acted on in 
the court Ijelow, and consequently they 
may be regarded as a part of the record. 
White V. 'The Branch Bank at Decatur, 
1 A. R. 435. Jordan v. 'The Branch Bank 
at lluntsville, 5 A. R. 284. 

70. On a motion l3y a bank for judg- 



ment, the certificate of the president of 
the bank, that the note svied on, is&owa 
fide the property of the bank, is neces- 
sary to give the court jurisdiction of the 
case ; but cannot be looked to for any 
t)ther- purpose, or regarded by the jury 
as evidence. Gazzam v. The Bank of 
' ifo6j7e, 1 A.-'R. 268. 

77\ Jn a sunimary proceeding at the 
suit of a bank, the court will not, in or- 
der to reverse a judgment, look to the 
notice and certificate found in the tran- 
script ; but if they are recited in the 
judgment entry, or are brought to the 
vicAV of the court by bill of exceptions, it ' 
will then be permissiljle to point out 
such defects as are shown by the judg- 
ment or bill. Lightfoot v. the Branch 
Bank at Decatur, 2 A. R. 345.. . . ' 

78. Nor Avill the court look to the no- 
tice sent up with the record, for the pur- 
pose of contradicting the recital in the 
judgment, Avhere there has been no con- 
testation in the court below. Snelgrove v. 
the Branch Bank at Mobile, 5 A. R.295. 

79. In ti summary proceeding by mo- 
tion, at the suit of a bank, it is not ne- 
cessary, that the notice should be served 
thirty days before the commencement of 
the term of the court, or that the motion 
should be made oh a certain day; unless 
perhaps, the notice in this respect, is 
special.' Ticknor v. The Branch Bank 
at Montgomery, 3 A. R. 135. 

80. In a summary proceeding by a 
bank, if the judgment is by default, the 
judgment entry must show a legal title 
in the bank 'to maintain the action; and 
where in such a judgment, the note is 
described as payable to Andrew Arm- 
strong, cashier, or bearer, the legal title 
will not be presumed to be in the bank, 
unless the judgment entry shows the 
note to be indorsed to the bank; or 
avers the note to have been 'made paya- 
l)le to the bank, by the name and descrip- 
tion of Andrew Armstrong, cashier. 
McWalker^. The Branch Bank at Mo- 
bile, 3 A. R. 153. Huntington v. The 
Branch 'Bank at Mobile, 3 A. R. 186. 

81. But a bank may maintain a sum- 
mary proceeding on a note paj^able to 
A. Armstrong, cashier, upon an aver- 
ment, that it was made to the corpora- 
tion by that name. Smith v. TJie Branch 
Bank at Mobile, 5 A. R. 26. 

82. And under the act of Dfecember, 
1841, a note payable to B G, cashier, 
and described in a notice of a motion 



BANKS. 



151 






for judgment by the State Bank, or Its 
branches, is sufficient to show that the 
title is in the bank. Cratvford v. Branch 
Bank at Mpbile,7 .A. R. 383.. Cald- 
well Y. Branch' Bank ^at Mobile, 11 A. R. 
549. '- ^< 

83. And this act applies equally to 
notes which were executed at the time of 
its passage, and to those which have been 
since made. Davis \.- Branch Bank at 
■Mobile, 12 A. R. 463. ■ 

84. A note payable to "the president 
and directors of the Planters' and ]Mer- 
chants' Bank of Mobile," is in legal ef- 
fect, a note payable to the corporation, 
and a summary" ^^roceeding may be main- 
tained on it. Hazard v. Tlie P. & M. 
'Bank, 4 A. R. 299. 

85. Where a noticre was given by a 
bank, that a motion would be made for 
judgment against four persons, and a 
judgment was taken against two only, 
which was set aside and the cause con- 
tinued, and at the next term a judg- 
ment was taken agaiust all four without 
any other notice, the judgment against 
all was held to be erroneous, because it 
did not appear, that a motion was sub- 
mitted at the first term against the two, 
who were not noticed in the first judg- 
ment. Craioford v. The P. & M. Bank 
4 A. R. 313. 

86. The result of all the cases in this 
court, upon summary jridgments ren- 
dered on motion, is, that when the judg- 
ment is by default, it must appear by 
the judgment of the court, that the de- 
fendant had the notice which the law re- 
quires, and that the facts were proved, 
which give the- court jurisdiction, and 
show the liability of the defendant, for 
the debt or penalty sought to be en- 
forced: If the defendant appear, it will 
Ibe evidence of notice, and if an issue is 
made up and submitted to a jury, it is 
then like any other cause commenced in 
the ordinary mode, except that it must 
appear upon the record, that the court 
had jurisdiction to entertain the motion. 
Smith V. 'The Branch Bank at Mobile, 5 
A. R. 26. 

87. Where a judgment is rendered in 
favor of "the president of the bank," 
&c., omitting the words "and directors" 
which are part of the corporate name, 
the omission is a mere clerical mispris- 
ion, amendable at the costs of the plain- 
tiff in error. Snelgrove v. The Branch 
Bank at Mobile, 5 A. R. 295.. 



88. In a summary proceeding by a 
bank, the notice described a note paya- 
ble to J C W, by him -.indorsed to J W 
W, and by the latter to the bank ; the 
I'udgment described a note payable to 
J C W, by him indorsed to -J W AV, and 
by J C W to the bank: Held, that the 
recital' in the judgment, that J C W in- 
dorsed the 'note to the plaintiff, would be 
regarded as a clerical misprision, amend- 
able by reference to the- notice. Jordan 
V. ■ Branch Bank at Huntsville, 5 A. R. 
284. 

89. Where the judgment refers to, 
and inaccurately^ recites the certificate of 
the president of the bank, the certificate 
found in tlie transcript, may be looked 
to for the purpose of correcting and sup- 
porting the judgment. lb. 

90. The right of the Branch Bank at 
Mobile, to recover judgment on thirty 
days' notice, is a summary proceeding 
authorized by the statute creating the in- 
stitution, and the provisions of the stat- 
iite must be strictly pursued. Murphy 
V." The Branch Bank at Mobile, 5 A. R. 
421., 

91. That reiuedy is only given against 
the maker, or indorser of a note^ bill, or 
bond, and is not authorized against the 
representatives of a deceased maker, or 
indorser. lb. Alexander v. Branch Bank 
at Montgomery, 5 A. R. 465. Andreios 
V; Branch Bank at Mobile, 10 A. R. 
■375. 

92. A promissory note for the pay- 
ment of -a sum of money, to the State 
Bank, or one of its branches, "at the 
counter thereof," if not in proper form to 
authorize the summary remedy provi- 
ded by the charter, is sufficient for that 
purpose, under the 27th section of the 
act of 1837, "to extend the time of in- 
debtedness to. the bank." Hancock v. 
Branch Bank at Decatur, 5 A. R. 440. 

93. A notice by the president and di- 
rectors of the Bank of the State of Ala- 
bama, with the seal of the corporation, 
is a sufficient compliance with the char- 
ter, which requires the notice to be giv- 
en by the president of the bank. Craio- 
ford V. The State Bank, 5 A. R. 679. 

94. The certificate required to be made 
by the president of a bank, that the debt 
is really and bona fide its. property, may 
be made at the trial, .or at any time be- 
fore judgment. Ford v. Branch Bank 
at Decatur, 6 A. R. 286. Craioford v.* 
The "P. d'M, Bank, 6 A. Rv 290. 



'*■ ■.#.•■ 






....#. 



152 



BANKS. 



95. To authorize the rendition of a 
judgment on motion, in favor of the 
Planters' and Merchants' Bank of Mo- 
bile, it is not sufficient to produce to tfhe 
court, the certificate of one assuming to 

• .he the president of the bank, ora comuiis- 
sioner uncjer the act of 1843, that the 

' debt is the property of the bank; but the 
official character of the persons so as- 
suming to act, must be proved, and the 
genuineness of , their signature \ and it 
must appear from the record, that such 
proof "vvas made to the court, although 
an issue in fact vras- tried and found for 
the plaintiff. Cra^vfovcU' . The P. &. M. 
Bank, 6 A. -11,^290. (This decision is 
distinguished frpm the case, of Eobert'i- 
V. The State Bank, 9P. 312, by the con- 
sideration that the president of the State 
Bank is a public officer, and the presi- 
dent of the Planters' and Merchants' 
Bank of Mobile is not, but is-merely the 
agent of the corporation.) 

96. It is not necessary to prove, that 
the certificate was made at the time it 
bears date '; and proof of the genuineness 
of the signature, -willbeuriwia/ec/c evi- 
dence of the contents of the certificate. 

lb. ".••"'.■'*;•'"'■ 

97. A judgment in a summary pro- 
ceeding at the suit of a bank, against the 
drawer of a bill of exchange, is suffi- 
ciently certain, which states that the bill 
was presented for payment at ^'maturi- 
ty," without specifjdng the day. -Craiv- 
'ford v. The Branch Bank at Decatur, 
G A. R. 574. 

98. A notice of a motion for judgment, 
issued by a bank against its debtor, is 
process. to bring him into court; but af- 
ter the motion for judgment has been 
submitted, the notice may be regarded 
as a motion in writing, identifying -the 
debt, to which the defendant niay either 
demur, or plead to issue. • Oriffih v. The 
State Bank, 6 A. R. 908. 

99. Where a notice of a motion for 
judgment in favor of a bank, states the 
time when the note was discounted, so 
as to show that it was before it bears 
date, the statement being uniiccessary, 
may be treated as surplusage. lb. 

100. A notice at the ..suit of a bank 
need not be dated, unless the date is 
made material by a reference to it as 
.indicating when the motion will be made, 
&c. ; and although the indorsement of its 
receipt by the sheriff', shows that it was 
placed in hie hands, before the maturity 



of the debt, yet if it is not served until 
after the debt is due, no objection can be 
made to this defect in the notice. 76. 

101. The plea oi non-assumpsit, to a 
notice of amotion for judgment at the 
suit of a bank, throws upon the plain- 
tifl^ the onits of j^roviug the material 
facts stated ia the notice ; and if the note 
sought to be recovered is misdescribed 
as to the time of its maturity, the va- 
riance will be fatal to the motion. IK 

102. A notice at the suit of a bank 
against one of its debtors, Avas received 
by the sheriff on the 20th of April, 1842, 1^ 
executed on the 7th of May thereafter, • " 
and informed the defendant that the 
plaintiff Avould move for^ judgment 
against liim, "at the next term," &c., 
"to be holden," &c., iii 1841: In May, • 
1842, the defendant appeared and filed ' 
a plea in propria x^^-i'sonci : Held, that 
the fair inference was, that the motion 
was to be submitted at the term of the 
court next succeeding the time, Avhen 
the notice was issued and served; that 
so much of the notice as particularized 
the time when the court was to sit, 
might be rejected as surplusage, and 
that an appearance, and plea to the mer- 
its, Avas a AvaiA'er of the objection to the 
process, if it were otherwise available. 
Crawford v. The Bianch Bank at Mo- 
bile, 7 A. R. 205. 

103. Where the debtor of a bank, 
against Avhom the summary remedy pro- 
vided in such cases, has been prosecuted, 
pleads to the merits, and a A'erdict and 
judgment are rendered against him, he 
cannot object that the notice is defective, 
if it shows prima facie, that he is in- 
debted to the plaintiff: Where a notice 
is the initialtory process for the collec- 
tion of a. debt, it is not scanned with the 
same strictness vas a declaration, or nx)- 
tice against an officer for default in the 
performance of his duty. lb. 

104. An objection taken at the trial, 
to the notice, certificate, and note, is not 
sufficiently specific, to reach a supposed 
defect of authority in the person serving 
and returning thei notice. Crawjbrd v. 
The Branch Bank at Mobile, 7 A. R. 
383. _ 

105. Courts will, ex officio, take notice 
of the returns of bank agents, in the 
same manner, that they do of sheriffs' 
returns. lb. 

100. Where the record in a suit by 
motion at the instance of a bank, recites. 



H,n< 






',,.-, v^r-:.;*'^-,^..-;'?/- 



BANKS. 



15S 



^' that the certificate of William R. Hal- 
lett, its president, was produced," &c., 
and no objection is made in the court be- 
low, to the testimony by which the fact 
is established, it will in this court be suf- 
ficientj as it is not necessary that the 
court should recite the evidence, by 
which a fact is ascertained. Lester \. 
The Bank of ilohile, 7 A. R. 490.. 

107. A notice for judgment by mo- 
tion, made by one assuming to be presi- 
dent of a bank, is sufficient, whether he 
be president of ihe bank, dejure, or not, 
if the act is adopted by his successor, 
who is legally president of the bank. 
Blackmail \. The Branch Bank at Mo-' 
bile, 8 A. R. 103. 

108. To sustain a summary judgment 
in favor of the State Bank for thirty^er 
cent, damages, upon the dishonor of a 
bill of exchange, it must be shown by 
the record, that it was purchased, by the 
bank, .to make a remittance in payment 
of. the state bonds; the statement of a 
fact from which such an inference might 
be drawn, is not sufficient. Leigh v. 

, The State Bank, 10 A. R. 339. 

109. Where a judgment by default or 
nil dicit, is rendered upon motion, in fa- 
vor of a bank, the record must show the 
liability of the defendant for the debt or 
demand, and that the facts were proved 
which gave the court jurisdiction. An- 
dreivs v. The Branch Bank at Mobile, 10 
A.R.375. 

110. In a summary proceeding by a 
bank against its debtors, the notice al- 
ledged, that the drawer and iudorser 
were indebted to the plaintiff by a bill 
of exchange, purchased under the first 
section of the act of 1843; and inform- 
ed them, that a motion would be made 

'against them for tlie amount of money 
due and unpaid on the bill, together 
with the interest, and damages at the 
rate of thirtj'' per cent. Avhich had law- 
fully accrued thereon : The damages 
prescribed by the statute, on one de- 
scription of bill to which it referred, 
was thirty, and on another five per cent : 
Held, that as the plaintiff upon proof 
of default and notice, might recover at 
least five per cent, damages, the notice 
was not bad on demurrer. Biggs v. The 
StateBank, 11 A. 11. m^. 

111. In a proceeding by notice and 
m.otion, at the suit of a bank against its 
debtor, if an issue is made-up, and a 
verdict is returned for the plaintiff, it is 

1—20 



not necessary that the judgment should 
affirm with particularity the proof of 
every fact, which was necessary to au- 
thorize the verdict; it is enough, if it 
distinctly sets forth the facts, which are 
essential to the exercise of the summa- 
ry jurisdiction, lb. 

il2. An allegation in a notice that 
the bank would move for judgment on 
a bill dated the 4th of January, 1840, 
that "it was purchased under the first 
section of the act of 1843," should be re- 
jected as surplusage. The State Bank 
v. Dent, 12, A. R- 187. 

(b) Other actions by Banks. 

113. A bank may proceed against a 
debtor, by attachment, in the same way 
that an individual may^ The P. & M. 
Bank v. Andretvs, 8 P. 404. 

114. The right conferred on the State 
Bank, of suing out attachments in the 
county of its location, is a privilege con- 
ferred on it, and does not abridge the 
power it previously possessed, of suing 
out attachments in the county of the de- 
fendant's residence. Pearson v. Gayle^ 
11 A. R. 278. 

115. The second section of the act of 
1840, in providing that the State Bank 
and its branches, are severally authoi'- 
ized to take out attachments according 
to the first section thereof, on the appli- 
cation of any iudorser or security to a 
bill, note, or other demand, and on satis- 
factory showing of such indorser or se- 
curity, on oath or otherwise, that either 
of the grounds specified in tlie act exists, 
does not require an officer of the bank to 
reaffirm, or verify again, the ground 
stated by an indorser or security ; but if 
the showing is satisfactory to the bank, 
and the oath or affirmation is sufficient 
in point of form, and made before a 
proper officer, the bank may take out an 
attachment thereon, as provided by the 
first section. Faver v. The State Bank, 
10 A. R. G16, 

116. When a bank has not the legal 
title in a note, it may sue in the name of 
the person who has the legal title, to its 
use. Moore v. Penn, 5 A. R. 135. 

117. And evidence that the bank has 
no interest in the note, is il-relevant, un- 
less a foundation is laid for its introduc- 
tion, as for example, an offer to prove a 
set-off against a third person, as the true 
owner of the note. lb. 



154 



BANKS. 



118. An allegation in the declaration, 
that the note sued on was payable to B. 
Gayle, cashier, or bearer, in consideration 
whereof the defendant promised to pay 
the plaintiff, &c., is sufficient upon de- 
murrer, to rhow, that the bank was en- 
titled to maintain the action under the 
statute. Erioin v. The Branch Bank at 
Mobile, 14 A. R. 307. _ 

119. Where money is paid to a direc- 
tor, by order of the board of bank direc- 
tors, without lawful authority, the bank 
may recover it as so much received to its 
use. The Branch Bank at Mobile v. Col- 
lins, 7 A. R, 95. Same v. Scott, 7 A. R. 
107. 

120. And an appropriation, and pay- 
ment by the board, to one of the direc- 
tors, for estra services, is not warranted 
by law; and the bank may recover of 
him the amount paid, in an action of as- 
sumpsit. Same v. Scott, 7 A. R. 107. 

121. In a suit, by the Bank of the 
State of Alabama, or any of its branches, 
on a joint and several promissory note, 
or bill of exchange, judgment may be 
rendered, under the statute of 1840, re- 
quiring all the parties to be sued in the 
same action, against any defendant, 
whom the jury shall by their verdict find 
liable on it, although other defendants 
may make a successful defense,; and de- 
feat a recovery against them. Bussey 
V. The Branch Bank at Montgomery, 15 
A. R. 216. 

(c) Proceedings by motion against Banks. 

122. In a summary proceeding against 
the president of a bank, for a penalty for 
the bank's default, the bank must be de- 
scribed by the name given to it by its 
charter. Judson v. l^he State, Minor, 
150. 

123. A sheriff's return of the service 
of notice on W G H, cashier, &c., is not 
evidence that he was cashier, on a mo- 
tion for judgment against the Bank of 
Huntsville, upon bills of the bank. Bank 
cf Huntsville Y. TFaZ7i;er, Minor, 391. St. 
John V. The Tombeckbee Bank, 3 S. 146. 

124. On a motion against the Tom- 
beckbee Bank on behalf of the state, for 
failing to pay the tax on its capital stock, 
if the bank claims the right of a trial by 
jury, the court must direct an issue to be 
made vip. The Tombeckbee Bank v. The 
State, IMinor, 425. 

125. A party engaged by the State 



Bank as an agent, at five dollars per day 
during the period of his employment, 
cannot recover by notice and motion, un- 
der the eighteenth section of the act of 
incorporation, for the time he "was 
ready, willing, and consenting to act as 
such agent," and before he had notice 
that his services were no longer requir- 
ed : Such a contract sounds in damages, 
and its breach can only be redressed by 
the appropriate action. Wrigglesworth 
V. The State Bank, 1 A. R. 222. 

126. The act of 1821, authorizing a 
summaryjudgment against banks gene- 
rally, on failure to redeem their notes, on 
ten days' notice being given of the intend- 
ed motion, is repugnant to the thirteenth 
section of the charter of the Branch Bank 
at Decatur, which requires thirty days' 
notice of such motion, and is, therefore, 
as far as it regards the time of notice, re- 
pealed. The Branch Bank at Decatur v. 
Jones, 5 A. R. 487. 



IV. Of Bank Interest. 

127. The State Bank is authorized by 
its charter, to discount bills and notes at 
the rate of six per cent, per annimi, but is 
not prohibited by the charter, from dis- 
counting at a greater rate ; a discount at 
a rate not exceeding eight j?er cent., the 
statute interest, is not, therefore, usuri- 
ous. LyonY. The State Bank, 1 S. 442. 

128. That bank may take interest in 
the way of discount, in advance ; and if 
upon renewing a discounted note, inter- 
est for the last day of grace upon it, and 
for the day of discounting the new note, 
be computed, as well as for the time the 
new note has to run, it is not usury, lb.' 

129.- A note discounted by a bank, car- 
ries interest at the rate of eight jyer ceht^. , 
per annum after its maturity. Kitchen 
V. The Branch Bank at Mobile, 14 A. R. 
233. Lester v. Same, 7 A. R. 490! The 
Branch Bank at Mobile v. Stroiher, 15 A. 
R. 51. 

130. An agreement entered into by 
the bank, to receive payment by instal- 
ments of twenty jyer cent, annually, but 
without consideration, has no effect upon 
the rate of interest, which by law the 
note bears after maturity. lb. 

131. Notes given in payment for the 
purchase of sixteenth sections, carry in- 
terest at the rate of six per cent, per an- 



>V 



BANKS. 



155 



mim until paid, or judgment is obtained 
on them, or the contract is otherwise 
changed. The Branch Bank at Mont- 
gomery V. Harrison, 1 A. R. 9. 

132. The banks of this state, cannot 
discount notes, or bills, at the rate of 
eight jjer cent. ])er annum, having a long- 
er period to run than twelve months, nor 
extend a debt due them, and charge in- 
terest by way of annual discount, in ad- 
vance ; but they may discount a bill, or 
note, having more than twelve months to 
run, by ascertaimng its present worth, 
at eight ^er cent.,, for the time it has to 
run. The Branch Bank at Mobile v. 
Strother, 15 A. E. 51. 

133. A discount of a note, made by cal- 
culating the interest for one year, and 
multiplying this sum by the number of 
years the note has to run, and deduct- 
ing the amount thus ascertained, from 
the amount of the note, is illegal, 
whether made by a bank, or by an in- 
dividual. 76. 



V. Liabilities of Baxks in general. 

134. Bank stock is subject to taxation, 
unless the right to tax has been express- 
ly relinquished. Judson v. The State, 
Minor, 150. 

135. If a bank receives a bill for col- 
lection, and omits to present it at the 
proper time and place for payment, and 
a loss is sustained inconsequence of the 
omission, the bank is liable to the extent 
of the loss. The Branch Bank at Mont- 
gomery V. Knox, 1 xi. R. 148. 

136. If the owner of a bill, on which 
the remedy has been lost by the neglect 
of a bank, or its officers, withdragi^s it 
from the custody of the bank, he does 
not thereby waive his action against the 
bank ; nor will the pursuit of any of the 
parties, discharge the bank from the 
liability to answer for its negligence. 
Ih. 

137. When a note is deposited with a 
bank for collection, and no special agree- 
ment is made, the contract to be implied 
is one of agency ; and no other duties 
are imposed by law, on a bank, than 
those imposed on any other agent : The 
first duty of an agent in such a case, is, 
to follow his instructions ; if none are 
given, it is his duty to present the note 



at the time and place fixed for payment; 
or if no place is designated, to use due 
diligence to make a demand ; if payment 
is refused, it is then his duty to give im- 
mediate notice to his principal, that he 
may take the measures necessary for his 
own security : These duties are imposed 
by the general law of agency ; but others 
may arise out of local laws ; as if dama- 
ges are given on the protest of a note, or 
if a protest is essential to fix the liabili- 
ties of other parties. The Bank of Mo- 
bile V. Huggins, 3 A. R. 206. 

138. In the absence of any local cus- 
tom, it is not incumbent on the bank, to 
notify the indorsers, unless directed by 
the principal to do so, nor to cause the 
note to be protested, unless this is neces- 
sary to fix the liability of other parties, 
or to give the principal some advantage, 
which otherwise the law would not ac- 
cord to him. lb, 

139. Where a note is withdrawn by 
the owner from the bank where it was 
deposited for collection, the bank is not 
discharged from its liability to damages, 
if it has omitted to give notice to the 
principal, of the non-payment. lb. 

140. When a note is deposited with a 
bank for collection, and an entry is made 
on the bank-book of the depositor, the 
contract of agency is not waived or re- 
scinded, by canceling the entry in the 
bank-book : The only eftect of such a 
cancellation is, to show that the note has 
been returned to the depositor, who is 
authorized to deal with it as h« pleases. 
lb. 

141. An indorsement on a note, of the 
sum for which it was discounted, and 
the date of the discount, is an admission 
on the part of the bank, of the sum lent 
upon the note, of which the defendant 
may avail himself, as otherwise the in- 
ference would be, that the bank was en- 
titled to recover the whole amount. Col- 
gin V. The State Bank, 11 A. R. 222. 

142. A check drawn upon a bank, and 
indorsed by the proper officer, " good," 
is prima facie, an admission by the bank, 
that the money drawn for, is in bank, 
subject to the order of the drawer ; it is 
competent however to show, that the ad- 
mission was made by mistake. Smith v. 
The Branch Bank at Mobile, 7 A. R. 
880. 

143. Notice to the cashier of a bank, 
is notice to the bank. Tlie Branch Bank 
at Iluntsvillc v. Steele, 10 A. R, 915. 



156 



BANKS. 



VI. Authority and liability of baxk 

OFFICERS. 

144. The president of a bank, is not 
liable in his individual character for the 
penalty imposed by the act of 1820, for 
failing to pay taxes accruing from the 
bank. Judson v. The State, Minor, 150. 
(Crenshaw, J., disseating.) Craivford 
V. The State, Minor, 143. 

145. On the bond of the cashier of a 
bank, conditioned "safely and securely 
to keep all moneys deposited, and to re- 
fund and pay over the same when prop- 
erly required," the obligors arc not lia- 
ble for money violently robbed from the 
cashier, while in the discharge of his 
duty. The Bank of Huntsville v. Hill, 1 
S. 201. 

146. It is not within the scope of the 
powers ordinarily conferred upon the 
cashier of a bank, to appear to, and de- 
fend suits against it ; and consequently, 
he cannot answer a garnishment which 
has been sued out against it : The an- 
swer should be made under the common 
seal of the bank, either by the express 
authority of the directors, or president, 
who, thus far, is the executive officer of 
the board. Tlie Branch Bank at Mobile 
V. Foe, 1 A. R. 396. The P. & M. Bank 
V. Leavens, 4 A. R. 753. 

147. The cashier of a bank, in the 
course of his ordinary duties and by vir- 
tue of the general power appertaining to 
his office, has a right to transfer the pa- 
per securities of the bank, in payment of 
the bank debts. Everett v. The United 
States, 6 P. 166. 

148. And it is not necessary, that the 
inducement for an indorsement of such 
paper by a cashier should appear ; in 
the absence of proof to the contrary, the 
presumption will be that the transfer 
has been properly made. Ih. 

149. But this inference Avould not be 
conclusive ; and a party would be au- 
thorized to controvert the fairness of 
such a transaction, by showing that it 
was not made in the regular course of 
business, but in prejudice of the rights 
and interests of the bank, and thus de- 
feat the effect of the transfer. lb. 

150. The approval by a corporation of 
the acts of one, done as its agent, makes 
those acts valid, whether authorized or' 
not. Ih. 

151. A director of the Branch Bank 
at Mobile, receiving the compensation 



provided by law, as such director, can- 
not make a contract Avith the board of 
directors, for compensation for extra ser- 
vices, while he continues % member of 
the board of directors. The Branch 
Bank at Mobile v. Collins, 7 A. R. 95. 
Same Y. Scott,! X.'R.lQil. 

152. An order of the board of direc- 
tors, allowing a compensation of $1000, 
each, to the members .of the board, con- 
stituting the "real estate committee," is 
illegal and void. Lb. 

153. The board of directors may com- 
pensate one of their number for services 
rendered to the bank, previous to his 
connection with it as one of its direc- 
tors, lb. 

154. "Where work was done for the 
bank, under the superintendence of one 
of the board of directors, it was held, that 
the board might lawfully direct the com- 
pensation to be made to him, for the use 
of those who did the work. Ih. 

155. Where money is paid to a direc- 
tor by an order of the board, which is 
not authorized by law, the bank may re- 
cover it, as so much received to its use. 
lb. 

156. The president of a banking cor- 
poration, cannot use its cash and cred- 
its, for the purpose of settling the de- 
mands of its creditors, unless authorized 
by the charter, or by-laws of the bank ; 
and the use of the corporate seal, can- 
not give validity to a transfer made by 
him. Gibson v. Goldthioaite, 7 A. R. 
281. 

157. The president of a banking cor- 
poration, the charter of which does not 
confer the power, is not authorized with- 
out the permission of the directors, to 
whom is intrusted the management of 
the concerns of the institution, to stay 
the TOllectiou of an execution against 
the estate of one of its debtors ; and if a 
sheriff omits to levy an execution incon- 
sequence of such an order from the pres- 
ident, it will not become dormant, so as 
to lose its lieii. Spyker v. Spence, 8 A. 
R. 333. 

158. The remark of 'a president of an 
incorporated bank, to a master in chan- 
cery, who informed him that a sale of 
certain jDroperty in which the corpora- 
tion was interested, had been postponed, 
that he acted properly, amounts to noth- 
ing more than the approbation of what 
the master had done; but it cannot be 
inferred that he was informed when the 



BANKS. 



157 



property would be again offered ; that 
he regarded the master's eommunication 
as a notice, ar approA^ex"! a subsequent 
sale, even c&ncBding that the president, 
in virtue of his general powers, was au- 
thorized to act in the premises. The 
Branch Bank at Mobile v. Himt, 8 A. K-. 
876. * -• . 

159. Directors of a bank, are not re- 
sponsible for an injury to the bank, 
caused by their act, .originating in an 
error of judgment, unless the act be so 
grossly wrong as to warrant the imputa- 
tion of fraud, or the want of the neces- 
sary knowledge for the performance of 
the duty assumed by them, on accepting 
the agency. Godbold y. Tlie Branch 

- Banh at MohUe, 11 xi. R. 191. ' - 

160. The giving of compensation to a 
member of the board of directors, for ex- 
tra services as an agent of the bank, 
though unlawful, is not such an act as 
will expose the directory to liability, if 
done in good faith, and with the honest 
intention of benefiting the bank. 76. 

161. In' a suit by the State Bank, 
against the cashier, on his bond, to re- 
cover damages for his failure to protest 
a bill of exchange left with the bank for 
collection, it was proved, that it Avas the 
duty of the cashier to attend to this de- 
partment ; that a resolution was intro- 
duced by a director, and passed, requir- 
ing the cashier so to arrange the duties 
of the various officers of the bank, as to 
give to B, (an officer of the bank,) the 
necessary assistance in his department ; 
that under this resolution, a^ written 
memorandum of the various duties of 
each officer was drawn up, and signed 
by all the officers, except two, by which, 
S, the second book-keeper, was charged 
with the duty .01 attending to the col- 
lecting register, who discharged tha>t 
duty, until after the default complained 
of; and that this memorandum was laid 
on the table of the board of directors, 
when in session, by the cashier, though 
it did not appear, that it was read, or 
acted on by the board : Held, that it was 
a reasonable inference, that the board 
of directors assented to, and approved 
of this arrangement; that as they did 
not dissejit from it, they must be consid- 
ered as acquiescing in it; and that there- 
fore, the cashier was not liable. The 
-State Bank v. Comegys, 12 A. R. 772. 

162. The bank commissioners ap- 
pointed under the act of 1846, whether 



by the legislature, or by the executive to 
fill a vacancy, are public officers, of 
whom the courts Avill take judicial no- 
tice. Colgin v. The State Bank, 11 A. 
R.~ 222. 

168. The agents of the State Bank 
and its bi'Snches, appointed under the 
statute, possess the same powers in exe- 
cuting process in favor of the bank, con- 
ferred on sheriffs, and are bound to ob- 
serve the same rules. Morgan v. Eam- 
seij, 15 A. R. 190. 

164. A n agent appointed by the Bank 
of the State of Alabama, or* one of its 
branches, under the statute of 1843, to 
execute process in- favor of the bank, is 
the sheriff of the bank, and is invested 
with the power and authority to perform 
the duties of his office by deputy. Draine 
V. Smelser, 15 A. R. 423. 

165. The act of 1839, in prescribing 
the salary of the attornej'^s of the State 
Bank and its .branches, applies alone to 
the regular attorney in the different 
banks, who is elected by the directors, 
and does not inhibit the banks from the 
employment of such other professional 
assistance as their interest may rec{uire. 
The State Bank v. Martin, 4 A. R. 615,. 



VII. Of Baxk Notes. 

166. Payment, in discharge of a debt, 
in genuine bank notes, if made bona, 
Jicle and in ignorance of the failure of 

the bank, is a valid payment, though at 
the time, the notes were valueless. Loic- 
rey v. MurreJl, 2 P. 280. 

167. A bank note being passed off up- 
on an agreement to take it back if not 
current, the person receiving it, may re- 
cover, if it was uncurrent, although he 
had passed it off, had been sued for pass- 
ing it as a current note, and had recov- 
ered a judgment, and while the judg- 
ment was still in force, he took back the 
note.- Bodgers v. Bussell, 11 A. R. 456. 

168. The notes issued by the Bank of 
the State of Alabama and its branches, 
are not "bills of credit," within the pro- 
hibition of the constitution of the Uni- 
ted States. Owen v. The Branch Bank 
at Mobile, 3 A. R. 258. 

169. Where bank bills are at a dis- 
count, but the bank is liable to be com- 
pelled to .pay them in gold or silvei*, the 
damages properly accruing on the breach 



158 



BASTARD. 



of a contract, of which such bills formed 
the active consideration, cannot be re- 
duced by reason of their depreciation. 
Bell V. The Ileal Estate Banking Co., 3 
A. 11. 77. 

170. When bank notes are offered in 
payment, and no objection is made on 
that account, the ofter is a good tender ; 
and this, although the notes are those of 
a bank, which has suspended specie pay- 
ments. Seaioell v. Henry, 6 A. K. 226. 

171. A payment in current bank notes, 
by a defendant in execution, to a sher- 
iff, discharges the execution ; but the 
sheriff suljjects himself and his sureties 
to pay the plaintiff in coin. Hayiies v. 
Wheat, 9 A. E. 239. 

172. Bank notes are not the subject of 
larceny, at common law. Gulp v. Tlie 
State, 1 P. 33. 



BASTARD. 



1. Whei*e the record of a bastardy pro- 
ceeding shows, that the defendant ap- 
peared Ijcfore the county court, pleaded 
guilty to the accusation, and in pursu- 
ance of the judgment rendered, executed 
a bond, which recites, that the mother 
was a single woman, and had been deliv- 
ered of the child in the county where the 
proceedings were had, the jurisdiction 
of the court sufficiently appears. Pruitt 
V. The Judge, (tc, 16 A. II. 705. 

2. The bastardy act, is not to be so 
construed, as to limit the liability of a 
party convicted under it, to the support 
of the child until it arrives at the age of 
ten years. lb. 

3. In an information for bastardy, the 
recital in the caption that the relator is 
a single woman, is sufficient. Austin v. 
Pickett, 9 A. R. 102. 

4. The marriage of the relator after the 
information, will not abate the proceed- 
ings in a prosecution for bastardy, nor. 
will a marriage in fact be inferred, when 
the relator is afterward called by another 
name, as late of the name set out in the 
information. 76. 

5. When the imputed fixther pleads not 
guilty of being the father of the bastard 
child, and the verdict is, that he is the 
real father of the said child, the plea and 
verdict will be referred to the complaint, 



and an irregular issue offered -by the 
court will be disregarded, although the 
defendant's demurrer was overruled. 
lb. 

6. A judgment in a bastardy suit, by 
which the defendant is condemned to. 
pay the sum of fifty dollars a year for tea 
years, toward the maintenance and edu- 
cation of the bastard child, and that he 
enter into bond and security for the due 
and faithful payment of said sums of 
money, as by statute required, is regu- 
lar, lb. 

7. A judgment, in a bastardy proceed- 
ing, will not be reversed, because the 
judgment entry omits to state in whose 
favor the judgment is rendered: The 
statute determines, with unerring cer- 
tainty who is the plaintiff. Yarborough 
V. The Judge of Shelby Co., 15 A. R. 
556. 

8. Where a defendant in a bastardy 
proceeding is in custody, when a judg- 
ment is rendered against him, it is not 
erroneous, for the court to order, that he 
remain in custody until he gives the 
bond repuired by the statute. lb. 

9. Where there is a mittimus showing 
the commitment of a party upon a jrirose- 
cution for bastardy, and subsequently a 
petition for a habeas corpus, and a recog- 
nizance executed in due form by the re- 
puted father, a motion to quash the pro- 
ceedings before the justice will not be 
sustained by the county court, on the 
ground, that there is no warrant in tlie 
papers showing the arrest, all the papers 
reciting, that the proceedings before the 
examining justice were regular: The 
warrant might be substituted by another 
conforming to it, as nearly as practica- 
Ijle ; or if it was shown that no warrant 
overissued, or its production was neces- 
Sjxry, the court might protect the party 
by making a suitable order. , Berrymaji 
V. The Judge of Lawrence Co., 9 A. R. 
455. 

10. Where the verdict affirms, that the 
defendant is the real father of the bas- 
tard child of the woman by whom he was ' 
charged, it is sufficient ; an-d a judg- 
ment thereon, which condemns the de- 
fendant to the payment of the sum pre- 
scribed by law as a consequence of the 
paternity, and directs a bond to be exe- 
cuted with surety for the annual pay- 
ment of the sum adjudged, though not 
entirely formal, will be sustained. lb. 

11. A party on whom the paternity of 



BASTARD.— BILL OF EXCEPTIONS. 



159 



a bastard child is established, by judg- 
ment, is liable to pay costs. lb. 

. 12. The act of 1811, as modified by 
the act of 1816,' only requires an issue, 
and trial by jury, to ascertain the paterni- 
' ty of a bastard child, -where the reputed 
father demands it. Trawick v. Davis, 4 
A. R. 328. Lake v. The Governor, 2 S. 
395. 

13. The appearance of the reputed 
father, is not indispensable to authorize 
the court to determine the question of 
filiation. Trawiek v. Davis, 4 A. R. 328. 

14. Under the statutes of this state, it 
need not appear of record that the child 
is living. Ih. 

15. Notwithstanding the remedy pro- 
vided by statute, a direction in the judg- 
ment against the father of a bastard 
child, that an execution issue thereon 
for each default in the payment of the 
sums adjudged to be paid, is regular. 
lb. (Collier, C.J. dissenting.) 

16. The mother of a bastard child, 
should not be made a party to a writ of 
error, prosecuted by the father ; the 
judge of the county court, being consid- 
ered the plaintiff in the judgment, should 
be made th6 defendant. Ih. Brown v. 
M'Lane, Minor, 208. 

17. If the proceedings before a justice 
of the peace, in a case of bastardy, are 
defective, the defendant should move the 
court to quash them, before he appears 
and thus' impliedly admits himself regu- 
larly in court. Traivick v. Davis, 4 A. 
R. 328. 

18. The bond taken for the appear- 
ance of the defendant in a bastardy pro- 
ceeding, should be made payable to the 
governor. lb. Lake v. The Governor, 
2 S. 395. 

19. Semble: Such a bond continues in 
force until the case is disposed of, or the 
sureties are discharged by an order for 
that purpose : But whether it does or 
not, the continuance of the case on the 
defendant's affidavit, will keep it in 
court as to him. Trawick v. Davis, 4 A. 
R.328. 

20. And the defendant is liable on 
such a bond, for a failure to appear, 
though there be no conviction of him. 
Lakev. The Governor, 2 S. 395. 

■21. In an action on such a bond, in 
the penalty of two thousand dollars, a 
judgment may be rendered for a less 
sum than the. penalty, by the court, 
without the intervention of a jury, lb. 



22. Such a bond is not Avithin the stat- 
ute of 1824, which requires the assign- 
ment of breaches. lb. 

23. xi judgment, that the "defendant 
pay not exceeding $50," sustained by no 
evidence of a bond, except the clerk's 
testimony that none could be found in 
his ofiice, but that the defendant's sure- 
ties said they had executed one, was held 
not to authorize an execution. Isaacs v. 
The Judge of Jefferson Co., 5 S. & P. 402. 

24. A prosecution for bastardy may 
bo compromised, and the compromise 
will be a suflicient consideration to sus- 
tain an action on a promissory note ; and 
is governed by the same rules applicable 
to other cases of contract. Ashburne v. 
Gibson, 9 P. 549. Robinson v. Grenshaiv, 
2 S. & P. 276. 



BILL OF EXCEPTIONS. 

1. It is not a valid objection to a bill of 
exceptions, that it was not sealed, pond- 
ing the term of the court at which the 
case was tried: If the exception be ta- 
ken at the trial, the bill may be sealed at 
any time, whether a note of the exception 
be made or not, by the judge. Pool v. 
The Caliawba & Marion Rail-road Co., 5 
A. R. 237. Strader v. Alexandei\ 9 P. 
441. (The effect of these decisions is 
changed by statute. Session Acts of 
1844, p. 5, sec. 1, which prohibits the 
allowance, or signature of bills of excep- 
tions after the adjournment of court.) 

2. The supreme court will allow a bill 
of exceptions to be filed as part of the 
record in a cause, where it is made to 
appear, that the exceptions were regu- 
larly taken, and that the judge termina- 
ted the court by withdrawing from the 
bench, and then refused to sign the bill. 
Bartlett v. Lang, 2 A. R. 161. 

3. The act of 1844, declaring that "it 
shall not be lawful for any of tlae judges 
of the circuit or county courts, to^sign 
bills of exception, after the adjourn- 
ment of the court, unless by the consfent 
of counsel reduced to writing, a longer 
time, not beyond ten days, be given," is 
not directory, but imperative ; a bill of 
exceptions therefore, signed after the ' 
adjournment of the court, will be struck 
from the record, unless it appear that it 



^■^* 



160 



BILL OF EXCEPTIONS. 



■was consented in writing, that it should 
he thus signed. Wood v. Brown, 8 A. 
K. 503. 

4. When the counsel agree, that an 
exception taken at the trial, shall be ex- 
amined after the adjournment of the 
court, and the bill of exceptions 'then 
sealed and allowed, this is not a failure 
or refusal of the judge, yrithin the act' of 
1826, so as to warrant the supreme court 
to allow the exception. TFoocIy. Broum, 
8 A< K. 742. (GrOLDTHWAiTE, J., ' dis- 
senting.) ' 

5. When the court refuses to sign a 
bill, and the party wishes to establish 
the exceptions by proof, he must do so 
within the trial term, and after notice to 
the opposite party. Perkins v. Harper,- 
2 S. 477. _ . _ , 

6. A paper copied into the transcript, 
and followed by a statement subscribed 
by the judge, that " the facts set forth in 
the foregoing bill of exceptions are true ; 
the court now declines signing, because 
it was not tendered in time, nor asked 
for on the trial, but some ten or fifteen 
days thereafter," will not be considered 
a bill of exceptions. Poivers v. Wri'glit, 
Minor, 60. 

7. Exceptions not certified by the 
judge, nor noted in writing at the time 
of the trial, cannot be considered on rec- 
ord. The Tomheckhee Bank v. Malone, 1 
S.269. 

8. Where a bill of exceptions states 
that two points w;ere made in the circuit 
court, each of which was overruled, and 
thereupon the defendant excepted to the 
decision of the court, this is a sufficient 
exception to each of the points. Fletcher 
V. Weisman, 1 A. R. 602. 

9. Where a blank was left in a bill of 
exceptions for a copy of a note and in- 
dorsement, and the declaration contain- 
ed but one count, which was on the 
note, and the plea of payment was filed, 
the exception was heard. Richardson 
T. Farnsivorth, 1 S. 55-. 

10. Where a bill of exceptions, sign- 
ed by the judge who tried the cause, was 
presented, and the record contained 
another, which the judge stated to be 
thetruc one, the former was not receiv- 
ed. Lecatt V. Stra^ig, 2 S. 230. 

11. A bill of exceptions with the word 
''seal," within a scroll affixed to the 
judge's name^is sufficiently sealed. Ke- 
Qian V. Starke; A. E. 773. 

12. When a:bill of exceptions is ten: 



dered to a judge, during the term, and 
he refuses to sign it, but agrees to ex- 
amine and sign it after the adjournment 
of the court, if after the adjournment he 
refuses to do so, he maybe compelled 
by mandamus. JEtheridc/S y. Mall, 7 P. 47* 

13. Th'e circuit court has jurisdiction 
to award a mandamus, where the county 
court refuses to sign a bill of exceptions. 
lb. 

14. Although the court is the judge ef 
tlie correctness of the facts, stated in a 
bill of exceptions,, it will not be permit- 
ted to reject one, which properly pre- 
sents the CE^se. lb. 

15. A writ of error will lie upon a 
judgment of the circuit court, quashing 
a petition for a mandamus, to compel a 
judge of the county court to seal a bill 
of exceptions. I-b. 

16. A bill of exceptions fraudulently 
or surreptitiously obtained, will be sup- 
pressed; but this court cannot try the. 
facts, and determine what was the point 
reserved at the trial, nor can a -subse- 
quent admission by the judge, impair its 
validit}-. Weir v, Hoss, 6 A. R. 881. 

ly. A bill of exceptions allowed and 
■sealed by the judge, becomes apart of 
the record, and cannot be altered or 
amended by him after the adjournment 
of the court. The Branch Bank at De- 
catur V. Kinsey, 5' A. R. 9. 

18. Records attached to the transcript, 
but not certified as a part of it, Avill not 
be considered in this coui't, although re- 
ferred to b}^ the bill of exceptions ; but a 
certiotxiri will be a,warded, even after ar- 
gument, if the counsel for the plaintiff 
in error, states that he is surprised by 
the objection to the records, and that 
they are the same lised at the trial. 
Quigley v. Campbell, 12 A. R. 58. .. 

19. A cettiorari will not bo awarded 
for a paper referred to in a bill of ex- 
ceptions, if it be not sufficiently identifi- 
ed. Looney v. Bush, Minor, 413. 

20. An exception taken in the court 
below, or i^oint reserved, will be disre- 
garded, unless it be presented upon the 
record, with reasonable certainty, ^ncl- 
lay V. Pruitt, 9 P. 195. 

21. .The only way in which this court 
can receive information of the evidence 
offered in the court below, is by a bill of 
exceptions, or demurrer to evidence. 
Maddox v. Brown, 9 P. 118. 

22. A bill of exceptions shoult] not 
contain more of the evidence, than rs* no- 



BILL OF EXCEPTIONS. 



161 



cessary to show distinctly, its applica- 
tion to the opiniohs excepted to. Mere- 
dith V. N'aisJi, 4 S. & P. 59.^ 

• 23. If a charge to the jury depends 
upon the evidence adduced, and is, prop- 
er or not according to that, the bill of 
exceptions should recite so much of the 

.evidence, as sho;5vs the error of the 
' dl'arge." Bfewer v. Strong, 10 A. R. 961. 
Greene Y. Tims, 16 A. R. 541. 

24. When an affiriuati^^'e charge ■ is 
given by the court, of its own motion, or 
at the instance of -the other party, and is 
excepted to, it is unnecessary to set out 
the evidence oij which it is founded. 
Kirhsey v. Jones, 7 A. R. 623. Ware v. 
Dudley, 16 A. R. 742. 

25. If an exception is taken to the re- 
fiisal of a court to instruct the jury, -the 
'bill of exceptions must embrace so much 
of the" evidence, .as to show that the in- 
structions asked for ai'ose out of the case ; 
but if the iiistructions actually given are 
excepted to, as mistaking the law, then 
no part of the testimony need b'e stated. 
Peden v. Moore, 1 S. & P. 71. Tharp v. 
The State, 15 A. R. 749. 

26. Wherever the court acts against 
a party without his consent given, or to 
be implied, the legal inference is, that 
the act is in invitum, and no bill of ex- 
ceptions is necessary, if the judgment 

• shows the error. Caiier v. Pickard, 11 
A. R. 673. . ■: • 

27.' A bill * of exceptions need only 
gtate so nluch.bf the case as is necessa- 
ry to show error; and if error is shown, 
a reversal will not be withheld, because 
ip. another aspect of the case, tlie error 
would be immaterial. Seaivell-\. Henry, 

6 A. R. 226.. 

28. All the points intended to be rais- 
ed upon the testimony in a cause, -must 
be distinctly presented in the bill of ex- 
ceptions, as it will not be presumed-, that 
all the evidence is embodied in the bill. 

• Rivesy. M'Loslcy, 5 S. &.P. 330. KeatJi 
V. Patton, 2 S. 38. CasUes v. McMath, I 

. A. R. 326. 

29; A party excepting to the ruling of 
the court, must show affirmatively the 
existence of error, dnd the court cannot 
aid him by presuming what the record 
does not' discover. Kiiapp v. McBride, 

7 A. R. 20. Johnsmi v. Ballew, 2 P. 29. 
30. Where a-bill 'of exceptions states 

that a charge wa^ prayed upon certain 

• evidence, it will not be intended, in order 

to legalize the charge, that other evi- 

1—21 



dence was given. Stephens v. Brodymx, 
5 A. R. 258. 

31. A bill of exceptions which states 
that the defendant offered to examine the 
nominal plaintiff" as a witness, to which 
tlie plaintiff's counsel objected, and his 
objection was sustained, and the witness 
excluded, raises the question, whether 
the nominal plaintiff was a competent 
witness. Pi^ffee v. Pennington, 1 A. R. 
506. 

32. A party complaining of error, 
must show sufficient matter in his bill of 
exceptions, to create the presumption of 
injury; this is shown whenever the evi- 
dence admitted against an exception, ia 
prima facie irrelevant, or illegal. Law- 
son V. Orear, 7 A. R. 784. Holmes v. 
Garjle, 1 A. R. 517. Stone v. Stone, 1 
A. R. 582. 

33. A party excepting, must show that 
ho has been prejudiced by the decision 
excepted to ; but if he has been denied 
the right of examining a witness upon 
points material to the issue, it will be 
intended that he has been prejudiced. 
DuifeeT: Pennington, 1 A. R. 50