Imágenes de páginas

money should not be paid, made before notice of the assignment, was a bar to
the action ; the proof being that the resale of the land, and agreement as to

the purchase-money, were made after notice of the assignment. Ib.
4. The refusal to give a correct instruction, or the giving an erroneous one, are

not sufficient to set aside the verdict, if it be notwithstanding right upon the

law and facts. Ib.
5. It seems it is not error in the circuit court to refuse to give a correct and perti-

nent charge asked by the defendant, provided the rule contained in it is
embraced in the instructions asked on behalf of the plaintiff.

Lea v. Guice, 656.
6. Instructions inapplicable to the facts are properly refused. Ib.
7. See Criminal Law.

1. While a court continues in session, it may, in most cases, exercise power over

its judgments and decrees; but after the term has elapsed this power ceases ;
the judgments are then final, and can only be reviewed by appeal or writ of

error. Sagory v. Bayless, 153.
2. While it true that judgments may be purchased and assigned, and the

assignee will have the right to use the name of the judgment creditor for the
collection of the judgment, yet if a judgment be paid by a third party, it will
thereby be satisfied, and cannot afterwards be assigned to such third party.

Rollins v. Thompson, 522.
3. The case of Agnew v. McElroy, 10 S. & M. 552, cited and confirmed.

Johnson v. White, 584.
4. It is no bar to a second suit if the first action is incompetent, or if the plaintiff

mistake his character, or if the first judgment is given for faults in the de-

claration or pleadings. Ib.
5. A judgment on a pleading which does not go to the foundation of the action, is

no bar to a subsequent suit; the merits of the second action must be decided

in the first, to make the first suit a bar. Ib.
6. Where a judgment is obtained in the name of A. against B., a garnishment

thereon cannot legally be sued out by C. in his own name, as the alleged
assignee of A., against a deblor of B., to compel him to appear and answer
what he owes B.; and if the debtor, when thus garnisheed, make the objec-
tion at the proper time, the process of garnishment will be quashed ; yet if,
without making any objection to the form of the process, or questioning the
right of the assignee to sue it out, he appear and answer how much he owes
the defendant in the original judgment; and the alleged assignee of that judg-
ment take judgment in his own name against the garnishee for the amount
thus disclosed to be due, it will not be erroneous ; nor will the judgment thus

taken be set aside. McGill v. Bone, 592.
7. See Execution ; see Limitations, Statute of; see Res Adjudicata ; see Ven-

dor and Vendee; judgments notice to purchaser; see Scire Facias, for revival
of judgments.

1. After the jury, in an action of replevin, have rendered their verdict for the

plaintiff, but have omitted to assess the separate value of the different pieces
of property involved in the suit, and have been discharged, it is error to
recall the same jury on the next day, submit further evidence to them, and
allow them to render another verdict assessing the separate value of each

article. Dearing v. Ford, 269.
2. See Criminal Law, for what constitutes qualification of.

By the laws of Alabama, justices of the peace are required to enter, in books

to be kept for the purpose, the names of the plaintiff and defendant in suits
instituted before them, the debt and costs adjudged, the time when the war-
rant issued, when it was returnable, and when judgment was given; and
these books thus kept by justices, have been decided, it seems, in that state,
not to be records. Scott v. Loomis, 635.

1. The British government, after the declaration of independence, had no right to

make grants to lands lying north of the 31st degree of north latitude; as
that parallel was, by the treaty of peace of 1783 between the United States
and Great Britain, declared to be the southern boundary line of the former.

Montgomery v. Ives, 161.
2. Yet prior to the declaration of independence, Great Britain having, after the

war of 1756, by the treaty concluded in 1763, acquired from France and
Spain all the land between the Mississippi river and the Atlantic ocean,
subject to the Indian right of occupancy, had the right to make grants to any
portion of the land, whether north or south of the 31st degree of latitude.

3. Between those of the colonies which were royal, and those which were pro-

prietary before our independence, this distinction existed, viz. : the former
belonging absolutely to the crown, it retained both the right of soil and of
jurisdiction, and could alter boundaries, grant lands, and dismember the
government at will; in the latter, the right of soil as well as jurisdiction was
vested in the proprietors; and no change could be made in the limits fixed

by the charters, without the consent of the proprietors. Ib.
4. Whether the crown of Great Britain had the right to change the boundaries

of a royal colony, by any means less solemn and notorious than by a public

proclamation, considered but not decided. Ib.
5. By the proclamation of George III. of October 7th, 1763, by which, with

others, the government of West Florida was created and established out of
the lands ceded by the treaty of Paris, it was among other things stipulated
that the Indian tribes should be protected “in the possession of such parts
ment of West Florida, created under this proclamation, granted a body of
land lying between the mouth of the Yazoo and the 31st degree of north
latitude; it was held that this grant was invalid, because the Indian title was
not extinguished in the land thus granted, until 1777 ; and under the pro-
clamation of 1763, the power of the royal governor within the territory

that "

of our dominions and territories as, not having been ceded to or purchased
by us, are reserved to them or any of them as their hunting grounds ; ” and

no private person do make purchase of any land froin any Indians,
but that the same shall be purchased only for the government in the name of
the sovereign, at some public meeting of the Indians ;” in 1772,


reserved, was suspended. 1b.
6. Whether that portion of the lands ceded to Great Britain by France and Spain

in 1763, lying between the mouth of Yazoo river and the 31st degree of
north latitude, ever constituted a part of the government of West Florida,
created in that year by royal proclamation, so that they would pass by a
grant from the British governor of that colony, dated in 1772, discussed by
Mr. Justice Clayton, and its decision left to depend upon the fact, whether
the limits of the province of West Florida, as established and defined by
the public proclamation of 1763, were afterwards extended north from the
31st degree of north latitude to the mouth of Yazoo river, by commissions
to governors of that province, issued in 1764 and 1770. Mr. Chief Justice
Sharkey was of opinion, in view of the facts, that the boundaries of West
Florida, as established on the north by the 31st degree of north latitude, by
the proclamation creating it, had never been extended or altered by any other
proclamation ; and that Great Britain, by the treaty of peace of 1783, ac-
knowledged all the lands north of the 31st degree of north latitude to be
part of the United States, which it could only have done upon the admission,
that they formed a part of one of the revolted colonies, and not of the pro-
vince of West Florida ; that the lands lying south of the mouth of Yazoo
river, and north of the 31st degree of north latitude, never formed a part of
the province of West Florida, and could not therefore pass by a grant from

its governor. 16.
7. A claimant under a British grant from the governor of West Florida, dated in

1772, filed his claim with the board of commissioners constituted under the
act of congress, to carry the session made by Georgia into effect : Held, that
this was an acknowledgment that his claim was subordinate to the act of
congress ; and having thus submitted to claim under that act, he could not

afterwards be permitted to claim above it. 16.
8. The plaintiff in ejectment claimed under a British grant from the governor of

West Florida in 1772, the defendant under a grant from the Spanish govern-
ment, bearing date in 1795; both grants were void, yet both were submited
to the commissioners appointed under the act of congress, to carry into
effect the cession made by Georgia, and both confirmed by that commission :
Held, that this confirmation did not relate back to the dates of the respective

patents, so as to cut out the younger patent; each patent took effect from
the date of the articles of cession, and as both therefore were of equal dig.
nity, and conferred equal right, the defendant could not be disturbed in his

possession, but must prevail over the plaintiff. Ib.
9. The confirmation of a void patent does not, by relation back to the date of the
patent, affect the rights of third persons.


1. The usual mode of taking advantage of a breach of condition for the payment
of rent, is by an action of ejectment after actual demand of the rent in arrear.

Morse v. Clayton, 373. '
2. While personal property under mortgage is not subject to seizure and sale

under execution, or ordinary attachments at law, a different rule prevails as
to distraints for rent, under the statute (Hutch. Code, 810, $ 10,) which pro-
vides, that “any limited property or interest” in the goods and chattels
attached, may be distrained and sold for such interest as the tenant may

have. Prewett v. Dobbs, 431.
3. See Forcible Entry and Detainer.

See Executor and Administrator.

1. It seems that the fact that certain goods have been furnished for the use

of a particular plantation and negroes, gives no lien in equity on such pro-

perty for the payment of such goods. Garland v. Hull, 76.
2. The statute (Hutch. Code, 606, § 5,) regulating the liens of mortgages and

deeds of trust, and the period of their taking effect, does not apply to mort-
gages executed out of this state on property out of the state; and therefore
where such property, so mortgaged abroad, is afterwards brought into this
state, the mortgagee does not lose his right by omitting to record his mort-
gage in this state, even as against bonâ fide purchasers for value, without

notice of such mortgage. Prewett v. Dobbs, 431.
3. See Deed; how lien of deed of trust and mortgage released of record.

1. Thirty-two years' adverse possession of real estate, before the commencement

of a suit in ejectment for it, is a bar to the plaintiff's right, unless he can
bring himself within some exception of the statute.

Montgomery v. Ives, 161.
2. In an action against an attorney at law for money collected by him for his

client, he may plead the statute of limitations; and it will be no answer to
the plea that he did not notify his client of the collection of the money.

Cook v. Rives, 328.


3. The 12th section of the act of limitations of 24th of February, A. D. 1811,

which provides that no action at law or in equity shall be brought against an
executor or administrator, after the expiration of four years from the qualifi-
cation of such executor or administrator, is prospective, and applies only to
administrators appointed after the passage of the act.

West Feliciana Railroad Co. v. Stockett, 395.
4. Were it otherwise, and the act to be construed to embrace administrators

appointed prior to its passage, and the limitation to commence running as to
them from the passage of the act, it would not apply to a case where letters
of administration had been granted less than nine months before the act look
effect, until those nine months had fully elapsed; because, until their lapse,
no right of action existed in the creditor, and the limitation had nothing until

then to take effect upon. Ib.
5. The legislature may pass an act of limitations, which shall apply to existing

causes of action, but some reasonable time should be allowed, within which
suits may be brought ; but if the act is silent as to any such intention, it
cannot be construed to apply to cases where such construction would cut off

all remedy. 16.
6. Judgments rendered prior to the 24th of February, A. D. 1844, by virtue of

the act of limitations approved that day, lost their lien on the 24th of Feb-
ruary, A. D. 1846 ; and a levy made in the interval on property, whether
real or personal, under execution upon such judgments, would not preserve
the lien on the property levied on, from the date of the judgment.

Bierne v. Mower, 427.
7. Therefore where B., on the 1st of October, 1838, obtained a judgment against

R., which was enrolled on the 26th of June, 1844, and execution issued on
it February 19, 1846, and was levied on the 23d of February, 1816, on 3
slave as the property of R.; and P., on the 27th of May, 1839, obtained a
judgment also against R., an execution on which, in April, 1841, was levied
on the same slave, who was sold in May, 1841, 10 M.: it was held, that, by
the sale of the slave to M., the title thereto passed to M. subject to the lien
of the judginent in favor of B.; but that judgment having lost its lien on the
241h of February, A. D. 1846, before it was perfected by a sale of the
slave under it, M.'s title to the slave was freed from that lien, and became

absolute. 16.
8. The same rule, with reference to the limitation of the lien of a judgment after

the 24th of February, 1846, where a levy has been made, but no sale made
before that day, prevails as to personal, that exists as to real estate; the
levy and seizure of the personalty, by the sheriff, vesis no other uitle in the
sheriff than that given by the lien of the judgment and the execution to en-
force it united ; and when the lien has expired to that extent, the right of

the sheriff is at an end. Ib.
9. An injunction issued under the sixth section of the act of 1843, establishing

the mode of proceeding against banks which have forseited their charters,

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