JUDGMENT AND DECREE-CONTINUED.
5. Upon the confession of the plea of plene administravit, the judgment is to
recover the sum due, to be levied of the goods, &c. 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 amend-
able as a clerical misprision, but when directed by the Court is error, for
which the judgment will be reversed. Skinner v. Frierson and Crow. 915
See Executors and Administrators, 14.
See Summary Proceedings, 3.
1. The County Court has no jurisdiction of an action of trespass 'quare clau-
sum fregit. Elliott v. Hall.........
.....508
2. The Circuit Court has no original jurisdiction of a summary proceeding,
by motion, against a constable for failing to return an execution, The
statute only authorizes the motion to be made before the justice of the
peace issuing the execution. Evans, use, &c. v. Stevens, et al........517
3. There is no inhibition in the bankrupt act of 1841, or in the relation which
the State and Federal Governments bear to each other, or in the grants or
restraints of power conferred upon them respectively, which deny to the
State Courts the right to entertain an inquiry into the validity of a dis-
charge and certificate upon an allegation duly interposed, that the bank-
rupt did not render a full and complete inventory of his "property, rights
of property, and rights and credits," but fraudulently concealed the same.
Mabry, Giller & Walker v. Herndon..
1. Notwithstancing the enumerated causes of challenge in the Penal Cude,
the Court may, in its discretion reject such as are unfit or improper per-
sons, to sit upon the jury, and may excuse those from serving who, for
reasons personal to themselves, ought to be exempt from serving on the
jury. So, also, the Court may reject any juror who admits himself open
to any of the enumerated challenges for cause, without putting him upon
the prisoner. The State v. Marshall, a slave......
......302
2. Confessions, or admissions, must be taken altogether, but the jury are not
bound to give equal credence to every part of the statement. When the
admission is not a whole, or entire thing, but consists of parts, the jury can-
not capriciously reject the portion favorable to the party making it; though
slight facts or circumstances would be sufficient to justify them in disre-
garding it. Wilson v. Calvert, Adm'r. .....
.......757
3. In such a case, the jury, and not the Court, is the proper judge of the cre-
dit to be given to the different parts of the admission. Ib...........757
1. Where a justice of the peace receives money in his official capacity, he
cannot detain it in satisfaction of a debt due him, in his private capacity,
or when sued for its recovery, plead a set off against it. Lowrie v. Stew-
art...
..163
LAND TITLES, SOUTH OF 31°.
1. A concession for a tract of land south of latitude of thirty-one, west of the
Perdido, and east of Pearl river, was made in 1806, and confirmed by an
act of Congress passed in 1832, which contained a proviso, declaring that
the act should "not be held to interfere with any part of said tract which
may have been disposed of by the United States previous to its passage:"
And providing further, that it "shall be held to be no more than a relin-
quishment of whatever title the United States may now have to such tract
of land:" Held, that if the United States had no interest in the premises
when the act was passed, in consequence of a previous disposition or other
cause, it was wholly inoperative, either to grant or confirm a title; that as
the land was situated below high-water when Alabama was admitted into
the Union, if the federal government was ever entitled to the right of soil,
its title was disposed of previous to 1832. Doe ex dem. Kennedy v. Bebee, 909
See Grants by act of Congress, 2, 3.
1. A testator devised the residue of his estate, as his executors thought pro-
per, to his wife, to rear and educate his children, during her life, and pro-
ceeds: "As the balance of my children come of age, I will that they re-
ceive such a part, of their part of my estate, as my executors shall think
proper to give them at that time. Also, I will, that when my daughter,
Eliza McLemore becomes of age, and marries, that she receive a part, of
her part of my estate as the executors may think proper. I will when my
youngest child comes of age, or my wife should marry, then in either case,
I will that there be a division take place between my wife, and my children,
and each one share an equal part of all my estate." Finally, he declares
“I will, at the death of my wife, all my children to share all my estate
equally." Held, that these legacies were vested, the enjoyment of them
being postponed until the contingencies happened. McLemore, et al. v.
McLemore, adm'r.
...687
2. One of the legatees having died before the contingency happened, leav-
ing one child by a former wife, and three others by a subsequent marriage,
and two of the last children having also died: Held, that the portion of the
two last children, in their father's legacy, would descend to their sister of
the whole blood, to the exclusion of the remaining sister of the half blood.
Ib......
1. Where several persons become bound for the payment of rent, in contem-
plation of law, the lease is to all, where there is nothing in the body of the
instrument to negative that conclusion. Magee v. Fisher, et al.......320
2. By receiving possession of land from another under a lease, the tenant im-
pliedly admits that the lessor has such a title as authorized him thus to
dispose of the premises; but he cannot be held to affirm any thing in re.
spect to the future; consequently it is allowable for the tenant, when at-
tempted to be ejected by the landlord, to show that the title of the latter
had expired or been extinguished by operation of law. Randolph v. Carlton.
607
3. Where a tenant pays the rent, after the expiration of the year, which was
due (according to contract) at its close, in an action by the landlord to re-
cover the possession, such payment will not estop him from showing that
the landlord's title was extinguished during the year. Ib. ..........................607
4. The land of B being levied on by an attachment, at the suit of W, B con-
veyed the same to R, under circumstances supposed to indicate an inten-
tion to defraud his creditors. R rented the land to C, W then obtained a
judgment against B, and the land in question was sold to satisfy it; R
brought an action against C, to recover the possession: Held, that if C, the
tenant, showed no title acquired subsequent to the commencement of his
tenure, he could not defeat a recovery, by showing the transaction be-
tween B and R to have been intended by them to delay, hinder and de-
fraud creditors.
Ib..
..607
1. The plaintiff recovered a judgment against the defendant, on which a
fieri facias was issued, and levied on personal property, to which a third
person interposed a claim, and executed a bond with security to try the right
as provided by statute; afterwards the defendant filed his petition in bank-
ruptcy, and in the regular course of proceeding was declared a bankrupt
and discharged, pursuant to the act of Congress of 1841, on motion of
the defendant the levy of the fi. fa. was discharged and set aside: Held,
that the proceeding to try the right of property did not destroy the lien of
the fi. fa; at most, it was only in abeyance during their pendency, would be
revived and might be coerced as soon as the claim was determined to be
indefensible: : Further, that the lien of a judgment or fi. fa. is preserved ac-
cording to the right of the creditor at the time the bankruptcy is establish-
ed; if the lien is then absolute, it completely overrides the decree, and
the creditor will be let into the enjoyment of its fruits. Deremus, Suydam
& Co. v. Walker......
.194
2. The act of the 9th of December, 1841, "For the better securing mechan-
ics in the city and county of Mobile," which provides a summary and ex-
traordinary remedy, where the work shall be done towards "the erection
or construction of any building," in that city or county, by a journeyman,
laborer, cartman, sub-contractor, &c. cannot be construed to give the re-
medy, provided, to one who has laboured under employment by a sub-con-
tractor. Turcott v. Hall.......
...522
3. The sheriff, by order of the attorney of the plaintiff, returned an execu-
tion by mistake a week too soon, and an alias was not issued, until after
an execution of a junior judgment creditor, had been issued, and levied
on the property of the defendant. Held, that as it did not appear that the
execution was returned, or its re-issuance delayed, for the purpose of fa-
voring the defendant in execution, and as a term had not elapsed, between
the return, and the issuance of the alias, the prior execution had not lost
its lien. Johnoon v. Williams, sheriff, et al.................
...529
4. The levy of an ancillary attachment upon land, operates a lien, and when
a judgment is rendered in favor of the plaintiff, the creditor's right to have
it sold to satisfy his judgment, will override and defeat all intermediate
conveyances made by the defendant. Randolph v. Carlton.........606
5. The remark of the plaintiff in a fi. fa. to the sheriff, that he would do no-
thing that could affect his lien, nor must he (the sheriff,) do any thing that
would cause him to lose it, but if he failed to make the money by a sale of
property, he would not rule him, will not make the fi. fa. dormant and in-
operative, if the sheriff failed to proceed thereon, unless the plaintiff intend-
ed to assent to, and approve the delay, with the view of aiding the defend-
ants, or protecting their property. Leach v. Williams, et al.........759
See Chancery, 34.
See Contribution, 1, 2.
See Estates of Deceased Persons, 10.
See Execution, Writ of, 13.
See Right of Property, Trial of, 4.
LIMITATIONS AND NON-CLAIM, STATUTES OF.
1. Where the plaintiff declares in the common counts in assumpsit, a plea of
the statute of limitations of three years is bad, unless it aver that the cause
of action is an open account. Lowrie v. Stewart...
......163
2. The proviso to the 7th section of the act of 1802, limiting the "right or
title of entry upon any lands," &c. which declares, "that the iime during
which the person who hath, or shall have such right or title of entry, shall
have been under the age of twenty-one years, feme covert, or insane, shall
not be taken or computed as part of the same limited period of twenty
years," does not exempt from the operation of the statute, a disability oc-
curring after the statute has begun te run. It applies to a disability exist-
ing at the time the right accrued, and if that disability be once removed,
LIMITATIONS AND NON-CLAIM, STATUTES OF-CONTINUED. the time must continue to run, notwithstanding any subsequent disability, either voluntary or involuntary. Doe, ex dem. Caldwell and wife, et al. v. Thorp, et al...... .253
3. The action of ejectment is barred by an adverse possession of twenty years, unless the plaintiff can bring himself within some of the savings of the proviso, of the act forbidding an entry into lands after twenty years. Doe, ex dem. Hallett and Walker, ex'rs v. Forest, et als.......
....264 4. A possession acquired under color of title, and acquiesced in for twenty years, will bar a recovery in ejectment, although during a portion of the time, the plaintiff in ejectment was prosecuting an application to Congress for the confirmation of an imperfect title, derived from the crown of Spain, to a tract of land, within which the land sued for situate, and to which his title was finally confirmed-he having been in possession anterior to the alledged intrusion. Ib........
......264 5. An admission made by the principal maker of a note, coupled with a promise to pay, will not revive the debt so as to take it out of the statute of limitations, as against a co-maker, who is his surety. Lowther, et al. v. Chappell....
6. The exception to the statute of limitations, that where the debtor is absent from the State, at the time the cause of action accrued, suit may be brought "after his return into the State," means, after his return within the jurisdiction of the State, where the process of the Courts of the State will run. A removal to the Indian nation, where the process of the Courts of the State did not run, is not a return within the State, though within its territorial limits. Smith, adm'r v. The Heirs of Bond. ......386 7. To complete the bar of the statute, the deblor must have been within the State, subject to its process, during the entire period provided as a bar : but such period of time need not be continuous, but may be composed of different periods of time. Ib. .386 8. Where the claim of a creditor is not already barred by the general statute of non-claim, at the time when the estate of his debtor is declared insolvent, he may file his claim at any time within six months after the declaration of insolvency, and it will not be affected by his omission to present it within eighteen months after grant of administration. Lattimore v. Williams, et al.. . . . . .
9. When the creditor omits to proceed against the personal representatives 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.— Travis v. Tartt....
10. If this defence is asserted by answer, instead of plea to the sci. fa. the plaintiff should demur, but the Court ought not, without action by the plaintiff, to render a judgment on the sci. fa. disregarding the notice. 16. 574
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