PRACTICE IN CHANCERY-CONTINUED.
24. A bill is multifarious where several defendants are charged with distinct
wrongful acts relative to different slaves to which the complainant had an
equitable title, although the title was precisely the same to all the slaves,
and the general charge of fraudulent combination between the several de-
fendants is not sufficient to authorise a joint suit. Meacham v. Williams,
et al.
842
25. The general rule in equity, that the proof must correspond with the alle-
gations, applies only when the evidence discloses a cause for relief differ-
ent from that set up by the pleadings. Gilchrist v. Gilmer,
See Chancery, 20.
See Error, Writ of, 9.
1. Where an attorney is invested with an authority in writing, to indorse
notes for, and on account of his principal, it confers power to indorse notes
of which the principal is ostensibly the legal proprietor, and it devolves
upon the principal, in such case, to show that the authority has been abus-
ed, or transcended. P. & M. Bank of Mobile v. King, Upson & Co. 279
2. Semble: it cannot be intended, because one is authorized to indorse notes,
that he is also an agent for the purpose of receiving notices of their dis-
honor. Ib.
280
3. An agent to whom a promissory note is payable, may maintain an action
thereon in his own name. Bird v. Daniel,
302
4. One who undertakes to bind a corporation, by the execution of a promis-
sory note, must show that he had authority to bind it, and that it had the
faculty of becoming bound for the payment of money. An agent when
sued upon a contract made by him, can only exonerate himself from lia-
bility, by showing that he had authority to bind those for whom he assumes
to act. Harwood's Ex'rs v. Humes, use, &c.
See Bailment, 1.
See Judgment and Decree, 3.
PRINCIPAL AND SURETY.
1. The undertaking of a surety, is accessorial to that of his principal, and if
the principal admits the contract to be binding on him, it is also binding on
his surety, unless there be a fraudulent collusion between the debtor and
creditor, to charge a surety. Evans and Arrington v. Keeland,
2. A surety may avoid his contract for a fraudulent concealment, or misre-
presentation of facts by the creditor, to induce him to become surety, al-
though the contract for which he was bound as surety, is binding on his
principal. Ib.
3. A misrepresentation which will have this effect, must be the false asser-
PRINCIPAL AND SURETY-CONTINUED.
tion of a fact, and not the expression of an opinion, of the value or quality
of the property sold. Thus, a declaration by the vendor, that the land he
was selling, was as good, or better than other tracts to which he referred;
that there was a comfortable dwelling house, good out-houses, peach or-
chards, &c. on the land is the expression of an opinion, and not the as-
sertion of a fact, the incorrectness or falsehood of which, would enable the
surety to avoid his contract. Ib.
4. The sureties of an administrator, against whom a judgment is rendered,
may discharge the judgment by a payment to the clerk, without waiting
for an execution to issue against their principal; it is therefere wholly un-
important that an execution which had issued against their principal, and
returned nulla bona previous to such judgment, was irregularly issued.—
Haynes v. Wheat and Fennell,
239
5. Where several judgments against the maker and indorser of a promisso-
ry note are recovered by the same plaintiff, the payment of the judgment
against the latter, does not annul that against the maker; but the indorser
may be substituted to it in equity, and have the advantage which it there
affords for his reimbursement. If an execution has been issued and re-
turned "no property found," he may go into Chancery to subject the equi-
table estate of the maker to the satisfaction of the judgment; or he may
resort to equity to cause conveyances of real property to be set aside,
which the defendant has made, or caused to be made in fraud of his credi-
tors. Lyon v. Bolling, et al.
463
6. The declarations of a sheriff, made while he is acting officially, in respect
to the receipt of money, are admissible against his sureties as part of the
res gesta; but if made at a subsequent time, and when he is not acting offi-
cially in the matter, they must be regarded as independent declarations,
and cannot be received as evidence. Dumas & Co. v. Patterson, 484
7. A surety who discharges the debt of an insolvent principal, by a payment
in money, and in his own note, which is received by the creditor as pay-
ment, and the evidence of the original debt given up, may sue a co-surety
for contribution. Pinkston v. Taliaferro,
8. When the holder of a note enters into an agreement with the principal
debtor, that he will not sue a surety until after a certain time, if the prin-
cipal will engage to pay all costs and lawyer's fees, this will not discharge
the surety. Armstead v. Thomas,
9. When the creditor gives day to the principal debtor, and the surety after-
wards, with a knowledge of the fact, agrees to waive all advantage to him-
self, the inference is that he agreed to the extension, and no consideration
is necessary to sustain the agreement for waiving the act. Bank at Deca-
tur v. Johnson,
621
10. The Bank of Orleans obtained a judgment against an accommodation in-
PRINCIPAL AND SURETY-CONTINUED.
dorser, and levied an execution upon his property. The drawer of the
bill proposed to the bank to pay the judgment, by instalments of ten per
cent. every sixty days. The bank consented and suspended the execu-
tion. The first instalment only was paid. Held, that the surety was not
discharged by this agreement. Wilson v. The Bank of Orleans, et al. 847
11. The clause in the charter of the Decatur Branch Bank, which makes it
unlawful for a member of the general assembly to become indorser for
any other person, does not discharge a member from liability on a note to
which he is a surety. Branch Bank at Decatur v. Douglass,
853
12. Where the principal debtor about a month previous to the maturity of the
debt, conveys to the creditor, real and personal estate apparently suffi-
cient to satisfy the debt, upon an agreement that no suit shall bebrought
thereon within five years, such agreement is founded upon a sufficient
consideration, and is binding upon the parties. Branch Bank at Mobile
v. James and Darrington,
949
13. It is competent for one joint maker of a promissory note to show by ex-
trinsic evidence that he is a mere surety; and this although he did not in-
form the payee of the fact at the time the note was accepted. Perhaps
the law may be otherwise, where joint promisors are described in the note
as principals, or contract as such with the payee. Ib.
See Appeals and Certiorari, 3.
See Contribution, 1, 2.
See Trust and Trustee, 2, 3.
1. The prochien ami of an infant plaintiff, in whose favor a judgment is ren-
dered, is not authorized to receive the amount thereof and discharge the
defendant. Smith v. Redus and Wife,
1. In an action for the breach of a marriage promise, it is a full defence, when
the defendant has bona fide offered to marry the plaintiff, although the de-
fendant's conduct, previous to the offer, had been such as would justify the
plaintiff in terminating the engagement, but she had not signified her in-
tention to terminate it. Kelly v. Renfro,
2. Two persons having a law suit about a tract of land, one wanting to rent
it applied to both for that purpose, but both declined to exercise ownership
over it. He then told them he should cultivate it, and would pay rent to
whichever of the two was ascertained to be the owner. Held, that this
promise inured to the owner of the land, and that the tenant could be gar-
nisheed by a creditor of the owner, when that fact was ascertained. Smith
v. Taylor,
1. The statement contained in a notarial protest, that the notary had sent notices of the dishonor of the paper, addressed to the parties at a particular place, is no proof, even on a demurrer to evidence, that the notices were properly directed; this fact must be shown by proof, independent of the protest. P.& M. Bank of Mobile v. King, Upson & Co. 280 2. The misdescription of the name of an indorser in the certificate append ed to the protest certifying that the notice was sent to one Chomason, when the indorser's name was Thomason, is not sufficient to exclude the protest as evidence, the true name appearing in the copy of the bill. Bank at Decatur v. Hodges, 631 3. A protest describing a bill as dated the 26th January, is not admissible as evidence to show the protest of a bill dated the 28th January. Ib. 631 4. Although protests are excluded from the jury, yet the deposition of the notary is proper, to prove notice sent to the indorsers-but quere? whether it is so to prove the fact of protest. lb.
1. Though the title to a reservation under the first article of the treaty of 1814, with the Creek Indians be vested in the United States by the voluntary abandonment of the reservee, it is not subject to entry under the preemption laws of Congress. Crommelin v. Minter, See Indian Tribes, Treaties with, 3.
1. An undertaking to answer to a charge for "resisting process,” is sufficiently significant in a recognizance to indicate the offence intended to be charged, although the statute makes the offence consist in "knowingly and wilfully resisting or opposing any officer of this State in serving or attempting to serve, or execute, any legal writ or process whatsoever.”— Browder v. The State,
2. The omission of a party's name in the body of a recognizance will not make it inoperative as to him, if he has regularly acknowledged it. Hall et al. v. The State,
3. It is not indispensable to the validity of a recognizance which the recognizor has entered into before some court or officer authorized to take his acknowledgment, that it should be sealed by him. Ib. 827 4. Quere? Where a recognizance is signed by several recognizors, and seals set opposite the names of some of them, if a seal be necessary to its validity, may not those upon the paper be referred to all who subscribed the obligation, and thus make the execution sufficient. Ib.
827 5. A recognizance, by which the recognizors stipulate that the principal shall appear and answer a charge to be exhibited against him on behalf of
the State for carrying concealed weapons, is sufficient, although the offence
is not described in the terms of the statute. Ib.
827
6. In Badger and Clayton v. The State, 5 Ala. Rep. 21, the judgment of the
Circuit Court was reversed upon the ground that there was a variance be-
tween the recognizance and judgment nisi; the remark in respect to the
sufficiency of the recognizance must be regarded as a mere dictum. Ib. 827
See Demurrer, 1.
See Judgment and Decree, 7.
RECORD AND JUDGMENT ROLL.
1. The record which the clerk is required to make, of all the prooceedings
in a suit, is the final record of the cause, answering to the judgment roll of
the common law, and is the only legal evidence of the judgment, to be es-
tablished by the production of the record itself, an examined copy, or a
copy attested by the clerk. Ansley v. Carlos,
973
2. Whilst the cause is progressing, the papers are quasi records, and until
the final record is made, the papers and proceedings in the cause are evi-
dence, and the best evidence of the facts they import. Ib.
RESIDENT.
1. One living with his family in New Hampshire, and carrying on business
there, is a resident of that State, within the act, although the spring pre-
vious, and for some years before, he had a commercial establishment in
Alabama, acted as a citizen, and intended to remove his family there the
next season. Stiles v. Lay,
RIGHT OF PROPERTY, TRIAL OF.
1. After the institution of a claim to slaves levied on, a transfer by the claim-
ant of his title to a third person, is valid, and passes his right of property,
clogged however by all the consequences of the levy and claim; and the
title is not turned into a mere right of action. Jackson v. Gewin,
2. When the sheriff, under the act of 1828, returns the copy of an execution,
with the levy returned on the original, his certificate is proof of all the
facts, precisely as his return upon an original execution. Garrett v. Rhea,
Adm'r,
3. When, in such a case, the venue is changed, the copy so made by the she-
riff may be certified by the clerk, and will have the same effect as in the
county from which the venue was changed. If other papers are alledged
to be substituted, it devolves on the party making the objection to estab-
lish it. Ib.
134
4. When property levied on by an attachment is 'claimed after a venditioni
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