Lucas and wife v. Hamilton. could take place, if the depositions of Shaw & Thompson were both submitted to the jury, or if the evidence was demurred to. The consequence is, the rejection of the deposition of Shaw, could not, according to the rules of law, work any injury to the plaintiff in error, and the judgment is therefore affirmed. LUCAS AND WIFE v. HAMILTON. 1. When upon the settlement of a guardian's account, a balance was found in his favor, quere, is it necessary to insert in the decree the amount of the ward's share of the estate. But if the account as recorded furnishes the means of ascertaining it, it may be amended, if desired, in this court, at the cost of the plaintiff in error. Writ of Error to the Orphans' Court of Clarke. PROCEEDINGS were instituted in the orphans' court, and a final settlement made of the accounts of William R. Hamilton, guardian of Sarah Ann Burriss, now the wife of Charles F. Lucas, the plaintiff in error. The court, after auditing the accounts, and ascertaining that the sum of $460 35 was due to the guardian, proceeds to make a decree, that the said guardian "having in all things performed his duty as guardian of said Sarah Ann, be discharged from any further liability on his bond, and that the same be cancelled, and held for nought." It is assigned for error, that the court does not specify in the decree, the amount due on the settlement. W. P. LESLIE, for plaintiff in error. The orphans' court, on a final settlement of a guardian, should insert in the decree the amount due the ward. Clay's Dig. 335, § 44. Lucas and wife v. Hamilton. F. S. BLOUNT, for defendant in error. Motion to amend judgment rendered in the orphans' court by proceedings of record, in this cause. Clay's Dig. 321, § 50; 322, § 24; Wilkinson v. Goldthwaite, 1 S. & P. 150; Scales v. Swan, 9 Porter, 163; Moody v. Keener, Ib. 252; Patterson v. Burnett, 6 Ala. Rep. 844; Broughton v. Robinson, 11 Ib. 922. CHILTON, J.—By the act of 1832, (Clay's Dig. 305, § 5,) it is provided, "that the county courts, on final settlements of executors, administrators and guardians, shall assess, and insert in their decree, the amount of their distributive share." It was necessary that the decree should state the amount, in order that execution might issue for its recovery. In this case, however, it appears there is a considerable balance due from the ward to the guardian, and as it is not competent for the court to give judgment and award execution in favor of the guardian against the ward, it would seem the reason for inserting the amount in the decree would not exist. Be this as it may, the amount appears in the account for final settlement, which account was not objected to, and which, after being examined, was approved and ordered by the court to be recorded. It then forms a part of the record in the cause, and the orphans' court could at any time, on motion, have amended the judgment; we must therefore regard it as a clerical misprision in entering the judgment. In such case, the statute forbids us to reverse the cause, but requires that the judgment be amended at the cost of the plaintiff in error.Clay's Dig. 322, § 54; Sellers v. Smith, 11 Ala. 264; Smith v. Robinson, Ib. 271; Harrison v. Barfield, at the present Term. Let the judgment be entered in this court accordingly. Weed & Co. v. Brown. N. AND H. WEED & CO. v. BROWN. 1. When a writ is properly sued out against the maker of a note, judgment obtained, and the statutory return of "no property found," made by the sheriff, it will be sufficient to charge the indorser, though it be shown, that the maker removed to another county after the institution of the suit. Quere, if the indorsee is informed of such removal, and that an execution would be more likely to be availing there, than if issued in the county in which the judgment was obtained, would it not be his duty to send it to such county. 2. A writ is properly sued out, so as to charge the indorser, although the maker removed from the county a few days previous to the institution of the suit; it not appearing, that such removal was open, visible, and notorious, or that the indorsee had knowledge of the fact; or that the maker was a freeholder of the county to which he removed, or was exempt from suit in the county in which he was sued. Writ of Error to the Circuit Court of Talladega. Before the Hon. S. Chapman. THIS was an action of assumpsit at the suit of the plaintiffs in error, as the indorsees of a promissory note made by John Long, James Long and Wm. F. Long, by which, on the 14th February, 1840, they promised to pay to the defendant, by the 25th December, 1841, the sum of $2,000. The indorsement by the defendant is alledged to have been made on the third day of November next after the date of the note. The cause was tried upon the general issue, with leave to give any matter in evidence that could be pleaded in bar; a verdict was returned for the defendant, and judgment thereon rendered. From a bill of exceptions sealed at the instance of the plaintiffs, it appears to have been proved that at the time the note was made and indorsed, the makers all resided in Talladega county. Wm. F. Long left the State and died previous to the maturity of the note. John Long was in Tennessee when the note became due, and James Long was Weed & Co. v. Brown. in Talladega on that day, but left immediately after for that State; and returned with John on the 9th of January, 1842, more than five days before the circuit or county court of Talladega next after the maturity of the note. A writ was issued to the first term of the county court after the note fell due against the makers. The defendant frequently urged James Long to pay the note, saying he was bound to pay it, if witness and John did not, and a fi. fa. was returned "no property found." Wm. F. Long resided in Talladega in November, 1840, and his estate, to the value of $1,500 or $1,600, was in that county during the years 1840, 1841 and 1842. James Long administered on Wm. F.'s estate in Talladega, and John Long was his administrator in Tennessee. James Long resided in Talladega up to the last of January, 1842, when he removed to Randolph county, where he remained until the last of January, 1844; he then returned to Talladega, and has resided there ever since. He administered on Wm. F. Long's estate shortly after the death of the latter about September, 1841. The present suit was instituted in January, 1844. The court charged the jury as follows: 1. To charge the defendant as indorser, the plaintiffs should show that they brought a suit against John and James Long, to the first court to which process could be made returnable after the maturity of the note, in the county of their residence; that although they believed James Long resided in Talladega when the note was made and became due, and may have continued to live there when the first writ issued against John and himself, yet if the first writ was discontinued as to James, on whom it was not executed, and afterwards, but before another writ issued against James returnable to the circuit court of Talladega, he became a resident of Randolph for the length of time shown by the evidence, then the plaintiffs should have sued him in the latter county to the first term of the court after his removal, or should have shown a return of "no property found" as to him, by the sheriff of Randolph. 2. If James Long became a citizen of Randolph after the note was indorsed by the defendant, it was immaterial whe Weed & Co. v. Brown. ther the plaintiffs had notice of his removal or not. 3. If at the time James Long was sued in the circuit court of Talladega, when the return of "no property found" was made as to him by the sheriff of that county, he resided in Randolph, then that return was not made by the proper officer. The plaintiffs prayed the court to charge the jury: 1. That if they believed James Long resided in Talladega at the time the first writ issued to the county court against John and himself, and afterwards removed to Randolph, but could have been sued in Talladega, and that a return of "no property found" was made as stated in the declaration, then, the plaintiffs were entitled to recover; unless it was shown that the plaintiffs, or their agent or attorney, had notice of his removal. This charge was refused. 2. That if the jury should believe the plaintiffs have proved the allegations of their declaration, they were entitled to recover the balance of the note unpaid. This charge was given with the following qualification, viz: "Provided, at the time the second writ issued against James Long, or at the time the return of 'no property found' as to said James was made, he resided in Talladega county." 3. That if they believed from the evidence the defendant had agreed to pay the note, or acknowledged his liability to do so, in the event it was not paid by the makers, and this acknowledgment was made pending suits against James and John Long respectively, the jury might infer the waiver of a suit against James in Randolph. This charge was given with a qualification as follows, viz: "that if the jury believed from the evidence that said defendant agreed to dispense with the statutory requisition of suing the maker in the county of his residence, to the first court to which the action could be brought, that it was competent for him to do so, as the statute provided for a case like that. To all the charges and refusals to charge, and qualifications of charges, the plaintiffs excepted. The declaration alledges the recovery of a judgment against John Long alone in the suit instituted in January, 1842, in the county court of Talladega-which suit was discontinued as to James, on whom the process was not served: Further, that a suit was brought in February, 1842, in the |