JUSTICE OF THE PEACE-CONTINUED.
pers, or the proceedings had before him in his office, and which were re-
duced to writing, without showing first the loss, or destruction of the
higher evidence. Bullock v. Ogburn, use, &c.
1. The lien of a landlord, upon the goods of his tenant, where an execution
or attachment is levied upon them, is confined to the rent due at the time
of the levy; and although the goods are permitted by the officer to remain
upon the premises until rent is due, they are in the custody of the law, and
the lien will not attach. Denham & Warford v. Harris,
465
2. The lien of the landlord, is not impaired, by his taking from the tenant a
note with surety for the payment of the rent. lb.
465
LEGACY.
1. A legacy payable when the legatee becomes of age, if it can then be paid
without a sale of the sroperty, and if not, then to be postponed until the
youngest child comes of age, cannot be coerced from the executrix, with-
out establishing, that the legacy may be paid, without a sale of the proper-
ty of the estate. Casly, et ux. v. Gilder, Ex'x,
322
2. Interest upon general legacies, is not demandable until eighteen months
after the grant of letters testamentary. The statute rate of interest fur-
nishes the proper rule. Hallett & Walker, Ex'rs, &c. v. Allen, &c. 554
3. The right of a married woman to recover interest upon a general legacy,
is not affected by the fact that no trustee had been appointed to act for her,
especially in a case where the executors had determined not to pay lega-
cies, until the estate could be made available without a sacrifice. Ib. 554
LIEN.
1. A judgment against a female dum sola, but no execution issued thereon
until after her marriage, creates no lien whatever on her property, and con
stitutes no impediment to the levy of an execution on the property, upon
a judgment obtained against the husband and wife. Haygood v. Har-
ris,
2. Where a creditor, by scire facias, seeks to subject lands to the payment of
a judgment rendered against the intestate in his lifetime, a plea puis dar-
rein continuance, that since the issuance of the sci. fa. the estate has been
declared insolvent, &c., is a good bar. Burk's Adm'r v. Jones & Allen, 167
3. An innocent purchaser of land, affected by a judgment lien, has an equi-
table right, to be paid for improvements made upon the land. Br. Bank
at Montgomery v. Curry,
See Bailor and Bailee, 1, 2.
See Landlord and Tenant, 1, 2.
See Partners and Partnership, 6, 7.
LIMITATIONS AND NON-CLAIM, STATUTES OF.
1. A surety received a promissory note from the principal debtor, as an in-
demnity, which he afterwards handed over to the creditor, as a collateral
security, by whom suit was brought upon it; the creditor cannot recover
upon the note, if the statute of limitations has effected a bar in favor of
the surety upon the principal debt. Russell v. Laroque & Hatch, 149
2. If the note received by the surety as an indemnity, was handed to the
creditor in payment of his liability, it would be no defence to the principal,
when sued on the substituted note, that the statute of limitations had cre-
ated a bar to the suit upon the original debt. Ib.
149
3. The possession of personal property, obtained by a fraudulent contract,
with one indebted at the time, will not ripen into a title by force of the sta-
tute of limitations against the creditors of the vendor. Powell v. Wragg
& Stewart,
161
4. If the instrument was valid, a bill could not be entertained to redeem the
slaves fifteen years after the execution of the instrument. The parties
having lived together in the State of Georgia, after the execution of the
bond for the period of time prescribed by the statute of limitations of that
State, to create a bar to a recovery at law, the title became perfect, and
will protect the possession against a suit in this State, his possession hav-
ing been adverse to that of complainant. Freeman, adm'r v. Baldwin, 246
5. A suit by the assignee of a bankrupt, must be brought within two years
after the decree in bankruptcy, or after the cause of action accrues; and
if this fact appears on the declaration, it will be reached by a demurrer —
Harris, Assignee, &c. v. Collins and Cartright,
388
6. An action of detinue for a slave is not barred by the statute of limitations
of six years, unless the adverse possessor, has been within this State six
entire years, so that he could have been sued in the courts of this State.-
Bohannan v. Chapman,
1. The refusal of a court, pending a motion against the sheriff, to permit
him to amend his return, cannot be assigned as error in the judgment up-
on the motion. If the party is prejudiced by the refusal, the remedy is
Caskey, et al. v. Haviland, Risley & Co.
by mandamus.
314
2. A writ of error cannot be prosecuted on a judgment of the court refusing
to quash, in the name of the deceased party, as defendant to the writ.
The remedy, it seems, would be by an application to the supreme court
for a mandamus. Moore & Cocke v. Bell,
469
3. Mandamus is the proper remedy to revise the action of an inferior court,
in quashing, or refusing to quash an ancillary attachment. Gee v. The
Ala. L. Ins. & T. Co.
579
4. 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 judgment. Mandamus is the proper remedy. Hud-
son v. Daily,
5. A mandamus will not lie when the party applying for it has no specific
right, either legal or equitable. It will not lie to require a judge of the
circuit court to declare an election void. The State ex rel. Spence v. The
Judge of 9th Judicial Circuit,
806
MARRIAGE AND MARRIAGE SETTLEMENT.
1. A marriage had in Alabama, is not necessarily void, because the parties
had been previously married, and divorced in the State of Georgia. Whe-
ther a prohibition in the sentence of divorce against the parties, or either
of them marrying again, made in the State of Georgia, would render in-
valid a subsequent marriage of the same parties in Alabama, quere. Reed
v. Hudson,
570
2. To render a marriage in Alabama invalid, it is necessary to show those
facts, the existence of which deny to the parties the right, or capacity to
intermarry, by the law of this State. Ib.
3. A marriage between a white man and a woman, who is of mixed white
and Indian blood, if made between parties able and willing to contract,
and consummated, is valid under the law of this state. Quere-When a
marriage is duly solemnized in this state, does not the strength and per-
petuity of the marriage tie depend upon the marriage domicil, and not up
on any subsequent residence of the parties in a heathen country? Wells
v. Thompson,
793
4. A marriage solemnized in this state, is not dissolved by an abandonment
of one of the parties, unless sanctioned by a divorce in due form. Ib. 749
MASTER AND SERVANT.
1. Where the master would not be liable if he had cut the trees himself, he
will not be liable for the acts of his servants obeying his instructions.—
Russell v. Irby,
MORTGAGOR AND MORTGAGEE.
1. A deed by which F acknowledges himself indebted to B in the sum of
$1,600 with condition, "that if the above bound H F, does convey, and
deliver, to said D B, his heirs, &c., a certain negro woman, Rachel, and
her child, named Reuben, conveyed and sold to the said H F, by the said
D B, when the said D B pays the said H F, five hundred and sixty-two
dollars, then this bond to be void," &c., whether regarded as a mortgage,
or conditional sale, in the absence of proof of fraud, mistake, or surprise,
cannot be explained by parol proof. Freeman, Adm'r, v. Baldwin, 246
2. To enable the court to declare an absolute bill of sale to be but a security
in the nature of a mortgage, the proof must be clear and convincing
MORTGAGOR AND MORTGAGEE-CONTINUED.
Loose declaratiovs of a trust, especially after great lapse of time, will not
be allowed to overturn the written contract of the parties. 1b.
3. To make an absolute bill of sale, with a defeasance, operate as a mort-
gage, they must be executed at the same time. If the defeasance be exe-
cuted afterwards, without consideration, it is a nude pact. Ib.
1. An executor offering a will for probate, cannot take a non-suit. Roberts
v. Trawick,
68
2. The refusal of a court to non-suit a plaintiff, because his recovery is less
than $50, is not a matter revisable on error. Ainsworth v. Partillo, 460
NOTICE.
1. At the time a bill of exchange was drawn, the drawer resided near Selma,
where he had a plantation, and which was his nearest post office. That
about two months before the maturity of the bill, he removed to Talladega
county, with his family, some eighty miles distant, visiting his plantation
occasionally, where his slaves remained; but there was no testimony, that
the plaintiff, who resided in Mobile, knew of this removal, or of the resi-
dence of the drawer, further than might be inferred from his sending the
notice to Selma. Held, that a notice of the dishonor of the bill, sent to
him at Selma was sufficient, it not being shown that he had a fixed resi-
dence in Talladega. Goodwin v. McCoy,
271
2. It is not necessary, in a notice to a sheriff, that a motion will be made
against him for a neglect of duty, to alledge that his official character con-
tinued, up to the time when a fieri facias placed in his hands was return-
able. Casky, et al. v. Haviland, Risley & Co.
3. A notice of the dishonor and protest of a bill of exchange, which describes
it correctly, but is silent as to the date and time of payment, is prima facie
sufficient. The interpretation of such a paper is the province of the court,
and should not be referred to the jury. Saltmarsh v. Tuthill,
See Ejectment, 2.
1. The action of the common council of the city of Montgomery, declaring
a house in the city, from its dilapidated condition, endangering the lives of
passers by, a nuisance, is prima facie evidence of the fact, casting on the
party complaining of the act of the city, directing the razure of the house,
the burthen of proving it was not a nuisance. City Council of Montg'ery
v. Hutchinson and Scott,
573
1. Under the act of 1836, "for the relief of tenants in possession against dor-
mant titles," to entitle the tenant to compensation for permanent and valu
able improvements, it is sufficient that his occupancy was bona fide, under
color of title. And for the purpose of showing that his occupancy was
adverse, he may prove by parol, that it was the intention of the plaintiff to
sell, and of the defendant to purchase the land in controversy, though by
mistake omitted in the deed. Lamar v. Minter,
1. Objection cannot be made in the appellate court, to the allowance made
to an executor, unless taken in the orphans' court, and the facts set out in
the record. Watson, et al. Legatees, v. McClanahan, Exr,
57
2. An executor is entitled to a credit for payments made to a creditor of a
legatee, by his direction. Ib.
57
3. The orphans' court has no power to allow an administrator to apply the
share of a distributee, to debts he claims to be due him from such distrib-
uter, unless the distributee consents to it. Kidd v. Porter, Adm'r,
4. Although the orphans' court may have taken jurisdiction of the settlement
of an estate, yet if there are assets in the hands of the administrator not
administered, and the settlement in the orphans' court, though it purports
to be final, remains to be completed as to the various sums left in the
hands of the executor, chancery may take jurisdiction. Dement, et al. v.
the Adm'rs of Boggess,
140
5. When the creditors of an insolvent estate, fail to nominate to the court an
individual as a fit person to be appointed administrator, the court may ap-
point one. Long v. Easly,
239
6. An administrator of an insolvent estate, appointed since the passage of
the act of 1843, may call on the administrator in chief, in the orphans'
court, to account for the assets in his hands, and if he obtains a decree,
may sue out execution upon it, notwithstanding the administrator in chief
was appointed, previous to the passage of the act of 1843. lb. 239
7. In a proceeding by the administrator de bonis non of an insolvent estate,
against the administrator in chief, who had been removed, to obtain the
assets in his hands, it is not necessary to make the heirs, or distributees
parties. lb.
8. No objection can be taken in the appellate court, for the allowance, or re-
jection of any item of the account, or for the failure to allow commissions,
unless an exceptive allegation be filed in the orphans' court, showing the
ground of admission, or rejection. Ib.
9. Partial settlements made by an administrator, are not res adjudicata; either
party may, upon final settlement, show an error in the accounts, and the
court may examine all matters of debit and credit, from the time the ad-
ministration commenced, and render such decree as may be proper, upon
a view of all the facts. Smith's Heirs v. Smith's Adm'r,
|