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160 420 400

Smith ,

M'Gowen o. Garrard and Morgan
M'Giew V. Adams & Elliot
M'Kcan & M'Kean and Plummer
M'Kinney's ex’rs v'. M'Kinney's adm'rs
M'Minn and He filin
M'Whorter r'. Sayre & Sayre
Martin v. Wbite, adm'r
Martin v. Townsend
Maury v. Olive
Mayfield and Hunt & Condry
Meggison & Hill and Holder
Miller v, Pennington
Miller and Thompson
Minter and Wriglie
Moore et al. v. Chapman, judge of the c. court
Moore, ex'r v. Dudley & wité
Moore and Ayres
Moseley and Winston
Muun v. Pope
Murphy and Wallis
Musgrove v. Hudson

520 494 225 259 462 169 222 224 255 515 480 11 30 231 360 388 249 474 230 249 509 364

Nicholson and Gee, adm'r

479 | Rushing and Taylor
502 Russell Moore and Teague
423||Rutledge v. Rutlege

17 492

Sadler et al. and Robinson's heirs, b'c. 225

Saftold et al. and Thompson 162

Sayre Sayre and M'Whorter 329

Sayre v. Lucas 472

Sewall v. Bates' adm'rs 124

Hearne 175

Smith v. Hunt 399

Smith v. Davis et al. 470

Snows Ó Cunningham aud Brandon 453

Sommerville et al, and M'Broom 460

Spann v. Boyd 170

State v. Plunket 336

State v. The Tombeckbee Bank 137

State v. Adams 498

State v, Cawood et al. 15

State and Collier 464

Stebbins v. Sutton

Stewart and Lecatt 512 Strang and Lecatt

Suttons and Stebbins

Sugs v. Burgess & Davis 47

Sykes et al. v. Sykes et al. 483 472

Tankersly v. Richardson

Taylor v. Rushing 38

Teague v. Russell Moore 414

Thompson v. Miller 399 Thompson v. Saffold et al. 477

Tombeckbee Bank and The State 445 Townsend and Martin

10 423

Wade r. Kelly & Hutchison 11

Wallis v. Murphy 401

Watkins v. Watkins, use of Perkins 498

Weakley v. Brahan Atwood

White adm'r and Martin 86 White ☺ Lesley admʻrs and Wiley & Gayle 438|Wiley Gayle v. White and Lesley, adm’rs

Williams et al, 7. Lewis

Winston v. Moseley 130 || Wright v. Minter 13 42

Young and M'Gowen 6 Wife 80 520 429 Zachariah and Garrard

Oliver and Brannan et al.
Oliver v. Judge
Olive and Maury

130 160 420 470 494

30 329

Patton and Keath
Payne & Williams and Bell et al
Pennington and Miller
Perkus z'. Harper
Pettybone and Grant and Conner
Pickens , Hayden & Meriam
Plummer v. M'Kean & M'Kcan
Plunket and The State
Pope v, Brandon et al,
Pope and Munn

443

15 485 500 102 331 331 41

169

137

453

Rapelye & Smith, survivors, 6c, and Robinson
Read and Avent
Reed and Cobb
Reid v. Gordon
Richardson and Tankers ly
Roberts v. Johnson
Roberts Battle v. Henry
Robinson r. Rapolye Sinith, survivors, 6c.
Robinson's heirs, c. v. Sadler et al.
Rochon . Lecatt

276

410

JUDGES OF THE SUPREME COURT,

DURING THE PERIOD OF THE DECISIONS CONTAINED IN THIS VOLUME.

The Hon. ABNER S. LIPSCOMB, Chief Justice and Judge of the First Circuit.
The Ilon. REUBEN SAFFOLD, Judge of the Second Circuit.
The Ion. IIENRY W. COLLIER, Judge of the Third Circuit.
The Hon. JOHN WHITE, Judge of the Fourth Circuit.
The Hon. JOIIN M. TAYLOR, Judge of the Fifth Circuit.
The Hon. ANDERSON CRENSHAW, Judge of the Sixth Circuit.
The Hon. SION L. PERRY, Judge of the Seventh Circuit,

CONSTANTINE PERKINS, Attorney General.

REPORTS OF CASES

LRQUED AND DETERMINED

IN THE

SUPREME COURT OF ALABAMA.

C

CASES DETERMINED AT THE TERM OF THE FIRST MON

DAY IN JANUARY, 1829, AT TUSCALOOSA.

PRESENT AT THIS TERM,

TIE HON. ABNER S. LIPSCOMB, CHIEF JUSTICE; AND THE HON.
JOHN M. TAYLOR, SION L. PERRY AND HENRY W

COLLIER, JUDGES,

BALDWIN v. BROGDEN.

Where a defendant pleads as a set off, a note made by the plaintiff to another

person, and transferred to him, the plaintiff will not be permitted to prove such set off void, as being given for a gambling consideration, without replying such defence specially.

In the Circuit Court of Pike county, I. M. Brogden brought an action of assumpsit against B. Baldwin, on a promissory note made by him, for $109 payable to one D. W. Edgerly or bearer, which by delivery had been transferred to Brogden. The defendant among other pleas pleaded as a set off, that he held a note for a larger sum made by the plaintiff to one Baker, or bearer, which had been duly transferred to him by delivery before the suit was brought, &c. No replication was filed to this plea, and in fact no issue was formally joined. At November term, 1827, a trial by jury was had. The defendant proved his possession of the note pleaded by him as a set off, and that it

Baldwin

JANUARY 1829. had been transferred to him before the suit was brought.

The plaintiff offered evidence to prove that the note pleaded

as a set off, was given for a gaming consideration contraBrogden. ry to the statute; to this evidence the defendant objected,

but the Court overruled the objection and admitted the tes-
timony, and the jury found for the plaintiff the amount of
the note sued on and interest.

The admission of this testimony was the error assigned.
GOLDTHWAITE, for the plaintiff in error.
THORINGTON, for the defendant.

By THE CHIEF JUSTICE. The plaintiff below should have replied to the plea of set off, that the note was given for a gambling consideration. This would have given sufficient notice to the defendant, and he could have been prepared to meet the objection, but it was surely improper to receive the testimony without such a replication

Judgment reversed and causc remanded Judge CRENSHAW not sitting.

PICKENS V. HAYDEN and MERIAM.

In assumpsit, a judgment by default for costs only, and no damages, is er

roneous.

This was an action of assumpsit determined in Monroe Circuit Court. It was brought by the appellees against the appellant, on a note of hand. At October term, 1822, the following entıy was made: "Judgment by default; whereupon it is considered by the Court that the plaintiffs do recover of the defendant the sum of $- - damages, and costs of suit, &c.”

It was among other things assigned for error, that no damages being recovered, the judgment for costs alone was erroneous.

Parsons and COOPER, for the plaintis in error.
ELLIS, for the defendants.

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