JANUARY 1827. formed "that the witness resides in Tennessee." If the

information was incorrect, the adverse party by proving

that the witness resided in this State, could have excluded the deposition, and he could not have been injured by such an affidavit being deemed sufficient.

It appears by the record, that the notice was given to Brahan on the day on which the dedimus issued. The clerk could not have prescribed a longer time for the notice than intervened between issuing the commission and the day which he had prescribed in it for taking the deposition, and it may be said that he has in effect directed the time of notice.

The Court are unanimously of opinion, that the judgement be affirmed.

M'KINLEY and HOPKINS, CLAY and M'CLUNG, for plaintiff.

CAMPBELL, KELLY and HUTCHINSON, for defendant in

error.

BUMPASS et al. v. RICHARDSON.

Trustees appointed to sell town lots with power to appoint successors:
On a note to them an action will not lie in the rames of the succes-

sors.

IN Lauderdale County Court, Gabriel Bumpass, M. H. Buchannon, J. Terrell, H Stockton and J. Davis, brought an action of debt against Matthias Richardson, on a writing obligatory, payable to said Bumpass, Buchannon, John McCracken, German Lester and Tyree Rhodes. The declaration sets out that Bumpass, Buchannon, M'Cracken and others, their associates, purchased a tract of land jointly, laid the same out into town lots, by the name of the town of Waterloo, and appointed Bumpass, Buchannon, M'Cracken, Lester and Rhodes, trustees to manage the business of the company, with power to appoint successors to any of them who die or resign. That the writing obligatory was made payable to them as such trustees. That M'Cracken, Lester and Rhodes resigned, and the plaintiffs, Terrell, Stockton and Davis, were duly appointed their successors, &c. General demurrer and joinder.

The County Court sustained the demurrer, and the JANUARY 1827. plaintiffs brought the cause to this Court, and assigned as error, the judgement on the demurrer.

JUDGE GAYLE delivered the opinion of the Court.

THE trustees had a right to sue in their individual names on contracts made with them as trustees, and to treat the addition as mere description. But this suit was not brought in the names of the trustees to whom the bond was payable, but in the names of only two of the obligees, and of Terrell, Stockton and Davis, the successors of the other three. An action cannot be sustained in the names of the successors who were not parties to the contract, and had no legal interest in it. This kind of succession would give to the trustees the perpetuity of a corporation. The action should have been brought in the names of the trustees to whom the obligation was given, or of the survivors of them.

The judgement must be affirmed.
SHORTRIDGE, for plaintiff.
MARTIN, for defendant in error.

Bumpass, et. al.

VS. Richardson.

BYRNE V. HALL.

Endorsement of writ describes the contract as under seal; declaration as a promissory note; judgement by default. The variance is not material.

JUDGE TAYLOR delivered the opinion of the Court.

THE endorsement on the writ describes the cause of action as a note under seal. The declaration as a promissory note with a scroll annexed; there was judgement by default and the variance is now assigned as error.

It is considered that this variance is not sufficient to reverse the judgement, even if the court would look to the endorsement for that purpose. By the endorsement the defendant had sufficient notice of the matter he was

called on to answer. Let the judgement be affirmed.

MARTIN, for plaintiff.

COALTER, for defendant in error.

JANUARY 1827.

Stewart. 1s 81

111

477

CARTER V. DADE.

In assumpsit, if verdict be for less than $50, and the plaintiff does not file his affidavit as required by the statute, he cannot have judgement.

JUDGE WHITE delivered the opinion of the majority of the Court.

THE only error assigned is, that the Court had no jurisdiction of the amount in controversy. It was an action of assumpsit, in Clarke Circuit Court. The declaration claimed two hundred dollars for goods, &c. sold and delivered. On the general issue, a verdict was rendered for the plaintiff for thirty-nine dollars thirty-two cents. There was no motion for a non suit, or affidavit filed by a Laws Ala. 156. plaintiff as authorized by the statute, " but the Court rendered judgement in favor of the plaintiff for the amount assessed by the jury.

b Constitution

b

a

The Circuit Court has no original jurisdiction of an action ex contractu, when the amount in controversy is less than fifty dollars, and as the plaintiff did not file his Ala. art. 5, sec. 6 affidavit to authorize a judgement on the verdict, a majority of the Court are of opinion that it was erroneously rendered. Let the judgement be reversed.

6.

GOODE, for plaintiff.

RUST, for defendant in error.

The Chief Justice not present.

Note. In the case of Howard v. Wear, [Minor's Ala. Rep. 84,] decided at December term, 1822, the contrary doctrine appears to have been held.

See Curtis v. Gary, Minor's Ala. Rep. 118.

DERRICK V. JONES.

JUDGE WHITE delivered the opinion of the Court. THE Judgement appears to be for ten dollars more. damages than are laid in the declaration. This is assigned as error. Let the judgement be reversed and the Cause remanded.

KELLY and HUTCHINSON, for plaintiff in error.

BUMPASS V. WEBB.

1. If defendant offer in evidence an answer in Chancery, and read a part of it, consenting that the whole may be read for the plaintiff's benefit, plaintiff's counsel, in the concluding argument, may read to the jury the residue of the answer and exhibits.

2. If plaintiff and defendant purchase land in partnership, plaintiff may maintain an action at law, for what he has paid beyond his proportion.

ASSUMPSIT in the Circuit Court of Lauderdale county, by John Webb against Gabriel Bumpass, for money had and received, paid and advanced, &c.; general issue. Verdict and judgement for plaintiff.

On the trial, the defendant offered in evidence, the plaintiff's answer, and exhibits annexed, to a bill in Chancery of Bumpass complainant v. John and Jesse Webb, to prove, that the defendant in this action and said John and Jesse Webb were partners in the transaction which produced this suit, and read a part of the answer and exhibits, and assented that the counsel for the plaintiff might read the whole. The plaintiff's counsel did not read any other part of the answer, until after he had opened the cause, and the defendant's counsel had replied before the jury, and then the plaintiff's counsel, in the concluding argument to the jury, read the residue of the answer and exhibits, to which the defendant objected, and the objection was overruled.

The defendant by his counsel moved the Court to instruct the jury, that if they believed that the plaintiff and defendant had purchased the land in partnership, that the plaintiff could not in this action recover of the defendant the excess paid by him, above the payment made by defendant; which instruction the Court refused to give. To all of which the defendant excepted, &c., and assigned. here as errors, the matter in the bill of exceptions. SHORTRIDGE and ELLIS, for the plaintiff.

COALTER, for the defendant in error.

JUDGE CRENSHAW delivered the opinion of the Court.

THE defendant introduced the answer and exhibits as evidence, assenting that the plaintiff might have the entire benefit of them. The whole of them were then before the

JANUARY 1827.

JANUARY 1827. jury, and either party, at any stage of the argument, had a right to refer to, and to read all or any part of them.

Bumpass

Though a partner cannot maintain an action at law, against his copartner, on a transaction concerning the copartnership, he may maintain such action for the excess which he has contributed over and above his proportion of the joint stock.

If the contract was, that each party should contribute equally to the purchase of the land, and the plaintiff in the action contributed more than his part, the excess was money paid and advanced to the defendant's use, and recoverable in an action at law. Let the judgement be affirmed.

JUDGE GAYLE not sitting.

Stewart. 1s 201 130 273

a October 1823.

PACE V. DOSSEY.

1. An amendment made in the Court below, pending the writ of error, cannot affect the costs in the Supreme Court.

2. Plea that the matter in controversy has been determined by the judgement of a justice is not good, unless it shew conclusively that the trial before the justice was on the merits.

TROVER by Dossey against Pace, in Morgan Circuit Court, for a bank note of $50. Defendant plead, 1. Not guilty.

2. That in a suit by plaintiff against him before J. T. a justice of the pece of said county, judgement was rendered in his favor, which judgement remains unreversed or otherwise vacated, and which suit and judgement embraced and determined the matter of controversy involved in this suit.

Issue on the 1st plea; demurrer to the 2nd.

At the succeeding term "the cause was submitted to arbitration, and the award returned by the arbitrators was set aside. At April term, 1824, there was a verdict for plaintiff and a new trial awarded. At October term, 1824, verdict for plaintiff 60. and judgement. On the 20th of April, 1825, Pace sued out a writ of error. In the transcript sent up, the demurrer to the second plea did not