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PRINCIPAL AND AGENT-CONTINUED,

agents to their principal, is evidence against the shipper. Ball v. The
Bank of the State of Alabama...
...590
3. Where the acts of the agent bind the principal, his representations and
declarations respecting the subject matter, will also bind him, if made at
the same time, and constitute part of the res gesta; but Quere? Is it compe-
tent to establish the fact of agency by the declarations of the supposed
agent. Strawbridge v. Spann,

See Chancery, 30,

PRINCIPAL AND SURETY.

.821

1. When lands are sold, and a bond for titles given by the vendor, to the
purchaser, and notes with sureties given for the purchase money, the sure-
ties are not discharged, in consequence of the title being conveyed by the
vendor, without payment of the notes. Woodward, et al. v. Clegg,....317
2. A surety cannot plead that his principal is dead, and due presentment of
the claim was not made to his representative. Nor will the omission to
present the claim for payment to the representative of the principal in the
debt, affect the right of the surety to recover from the estate, if he is com-
pelled to pay the debt. Hooks and Wright v. Branch Bank at Mobile. 580
3. The payee of a note brought an action thereon for the use of a third per-
son, who had become its proprietor, against one of the promisors, a surety;
the consideration of the note was the sale of a tract of land by the payee
to the principal maker; at the time of the sale there was an unsatisfied
judgment against the vendor, operating a lien upon the land, this judg-
ment the beneficial plaintiff authorized the principal to discharge, and pro-
mised to allow it as credit against the note; and it was accordingly dis-
charged: Held, that the promise to the principal enured to the surety;
that it was a direct and original undertaking to allow the payment, not ob-
noxious to the statute of frauds, and eo instanti it was made, extinguished
the note pro tanto. Cole, use, &c. v. Justice, ......

.....793
4. A creditor is entitled to the benefit of all pledges or securities, given to
or in the hands of a surety of the debtor, for his indemnity, and this, whether
the surety is damnified or not, as it is a trust created for the better secu-
rity of the debt, and attaches to it. Ohio Life Ins. Co. v. Ledyard, &c. EC6
5. At a sale under execution of the principal's property, it is competent for
the surety to purchase, although the judgment and fieri facias may be
against them jointly. Carlos, use. &c. v. Ansley,. . . .

.....900
6. A notice which omits to point the creditor directly to the principal, whom
he is required to proceed against, or to the security, on which he is requir-
ed to proceed, is of no effect, either under the statute or at common law.
Shehan v. Hampton.
.942

PRINCIPAL AND SURETY-CONTINUED.

7. The discharge of a surety, by means of the statutory notice, must be plead-
ed specially. Ib......
943
8. S, having a judgment against A, verbally agreed with him that he would
bid off the land of A, subject to an agreement to be afterwards entered in-
to between them. Shortly afterwards they met, and ascertained the amount
due from A to S, including the note here sued upon, and it was then agreed
in writing, that A should have two years to pay the debt, by four equal
instalments, and that upon the payment of the debt, S would convey the
land to A. A failed to pay the instalments, and by consent of A, S sold
the land-Held that the verbal agreement was void under the statute of
frauds, and the written agreement void for want of consideration. That
it was a mere gratuitous promise, which S might have disregarded, and
brought suit immediately for the recovery of the debt, and therefore did
not exonerate the surety. Agee v. Steele.
...948

See Chancery, 2.

See Constable and Surety, 1.

See Debtor and Creditor, 4.

See Limitations, Statute of, 5.
Sec Penalty, 1.

See Pleading, 28.

PROMISE.

1. A promise by the maker, to an innocent holder of usurious paper, to pay
it, if indulgence is given, is binding on him, and may be enforced, if the
delay is given. Palmer, use, &c. v. Severance and Stewart,.. ......53
2. A brother-in-law, wrote to the widow of his brother, living sixty miles dis-
tant, that if she would come and see him, he would let her have a place to raise
her family. Shortly after, she broke up and removed to the residence of
her brother-in-law, who for two yeass furnished her with a comfortable
residence, and then required her to give it up: Held, that the promise was
a mere gratuity, and that an action would not lie for a violation of it.
Kirksey v. Kirksey.......
......131
3. A promise to pay a sum of money in Alabama bank or branch notes, is a
promise to pay in notes of the Bank of the State of Alabama or its branch-
es, and it is proper for a Court to charge a jury that such is the proper
construction, without evidence of the meaning of the terms used. Wilsen
v. Jones,

PUBLIC POLICY.

..536

1. Although the issuance of bills of a less denomination than three dollars
was prohibited, at the time when a contract for the loan of the bills of am

PUBLIC POLICY-CONTINUED.

unchartered association was made, yet the mere fact that bills for less than three dollars were received, does not avoid the contract. McGehee v. Powell, . .

See Contract, 5.

RECOGNIZANCE.

828

1. A recognizance, conditioned that the party charged will appear and answer to the indictment to be preferred against him at a named term of the Court, and not depart therefrom without leave, may be extended at any subsequent term, if an indictment is preferred and found at that term. Ellison v. The State.... .....273

2. When the parties acknowledge themselves bound in the sum of $500, to be levied severally and individually of their goods, &c., respectively, this is a joint and several recognizance, and not the several recognizance of each of the parties for that sum. 1b,...

...273 3. Under our statutes, which allow a sci. fa. without setting out the recognizance, the defendant is entitled to crave oyer of the recognizance upon which the proceedings are based, and to demur if there is a varianue. Ib. 273 See Amendment, 5.

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1. The Circuit Court, independent of express legislation, has the power to substitute a judgment, roll, or entry, when the original record is lost, and the substituted matter becomes a record of equal validity with the original. McLendon v. Jones......

..298 2. The manner of correcting the loss, is to show by affidavits, what the record contained, the loss of which is sought to be supplied. The substitution can only be made after a personal notice of the intention to move the Court, and the notice must be sufficiently explicit to advise the opposite party of what is intended, as well as to enable him to controvert the affidadavits submitted. Ib....... .298 3. Where the genuineness of a copy of the proceedings of the Probate Court of a sister State are authenticated by the attestation of its clerk, the certificate of the Judge to the official character of the clerk, and the formality of his attestation, and the additional certificate of the clerk, in the terms of the law, to the official qualification of the Judge, its authentication is complete, under the act of Congress of 1804, amendatory of the act of 1790. Kennedy v. Kennedy's odm'r.............. ...391

RIPARIAN RIGHTS.

See Grants by acts of Congress, 2, 3.
See Land Titles South, 1.

RIGHT OF PROPERTY, TRIAL OF.

1. In claims interposed under the statute, to property which is levied on as belonging to the defendant in execution, the bond required to be given may be executed by those claiming the beneficial interest in the property, as well as by him who is invested with the title. Graham v. Lohkhart. 9 2. As the plaintiff in execution, if successful upon the trial of the right of property, is entitled to a return of the specific thing, which was delivered to the claimant, or its assessed value, it is allowable for him to offer evidence to the jury, to show what was its value at the time of the trial. Borland v. Mayo.

....104

3. On the trial of the right of property, the consideration of the cause of action on which the judgment was recovered, is not a matter in issue, yet if evidence to this point has been admitted, at the instance of the plaintiff in execution, a judgment in his favor will not, for that reason, be reversed; unless it appear that the claimant was prejudiced by its admission. Ib. 105 4. After a levy on property, and bond given to try the right, a junior execution cannot be levied on the same property, pending the trial. An execution issued on an elder judgment, but which has lost its lien, by the lapse of a term, will be postponed to one issued on a younger judgment) during such interval. Hobson v. Kissam & Co. et al......

... 357 5. Upon a trial of the right of property, the fact that an execution from the Federal Court had five years before been levied on the same property, and bond given to try the right, raises no question, until it is shown that the trial is still pending, although the levy of such execution was first made. .... 357

6. Quere: Where several levies are made upon the same property at the same time, and several trials of the right are had, if upon verdict of condemnation, the jury assess the full value of the property, in each case, and judgments are rendered accordingly, is it not competent for the Court in which the trials are had, to correct its judgment, so that the claimant may not be charged beyond the value of the property? Ansley v. Pearson, et al...... 432

7. When a claim is interposed to property levied on by attachment, the claim suit is wholly independent of the attachment suit, at least so long as it is pending. If the claim suit is determined against the claimant, the proper judgment is a condemnation of the property, viz: that it is subject to the levy of the attachment, and may be sold to satisfy the judgment in the attachment suit, if one then exists, or is afterwards obtained. No execution can issue upon this judgment, except for the costs of the claim suit. Seamans, et al. v. White. .....656 8. The assessment by the jury in the claim suit, of the value of the property levied on, is mere surplusage, and does not vitiate. Ib... .656

RIGHT OF PROPERTY, TRIAL OF-CONTINUED.

9. When, by order of the Court, new securities are substituted for those ori-
ginally given in a claim suit, the former are discharged. Ib.........657
10. When a slave is levied on at the suit of three creditors, and is claimed by
a stranger, who executes a claim bond to the junior execution only, and
that creditor alone contests the title with the claimant, and succeeds in
condemning the slave, the other creditors have no right to claim the money
which he receives from the claimant, in discharge of the claim bond. Bur-
nett v. Handley....

....685
11. A stipulation in a trust deed, to secure the payment of certain debts, pro-
viding that the debtor shall remain in possession of the property until a
named day, and afterwards until the trustee should be required, in writ-
ing, by his cestui que trust, to proceed and sell, does not extend the law
day of the deed beyond the time fixed for the payment of the debt; and
if a levy is made after that time, by a creditor, the trustee may protect the
property by interposing a claim under the statute. Marriott & Hardesty,
et al. v. Givens......

...694
12. When personal property is improperly levied on, the party claiming it
cannot enjoin the creditor from proceeding at law, on the ground that an-
other person has interposed a claim to it by mistake. The true owner has
an adequate remedy at law, by suit, or by interposing a claim under the
statute. Ib......

.....694
13. After the determination of a claim suit against a trustee, his cestui que
trust is not entitled to re-examine the question of title, on the ground that
he was a stranger to the claim. Ib. ..
......694

14. Where a surety against whom, with the principal, a judgment is rendered,
points out the property of the latter to the constable, and upon its being
levied on and offered for sale, produces a mortgage on the same property,
executed by the principal for his indemnity, and forbids the constable to
sell, in consequence of which he purchased the property at about one eighth
of its value: Afterwards a fieri facias against the principal upon another
judgment was levied on the same property, a claim interposed by the sure
ty, and an issue made up to try the right: Held, that the bona fides of the
claimant's purchase should have been referred to the jury, and if found
against him, the property should be subjected to the plaintiff's execution.
Carlos, use, &c. v. Ansley.

See Chancery, 9, 12.

See Error, Writ of, 13.

See Evidence, 20.

See Trust and Trustee, 3.

...900

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