INDEX.

ADMISSIONS. See Evidence, 5.

ADMINISTRATORS AND EXECUTORS.

1. When a suit was brought against the administrator
of A, charging that A, during his lifetime, had, as ad-
ministrator of complainants' father, bought the lands
of the estate at his own sale at less than their value;
that the lands had, since A's death, been distributed to
his heirs, and were now in the hands of B and C, as
purchasers from said heirs with notice. The bill
prayed that the deeds be canceled, and the lands be
delivered up; or, if this could not be done, that the
administrator of A account for their true value, as
well as account generally to complainants for the de-
vastation of his intestate as administrator of complain-
ants' father. On the trial the defendant offered to
prove that the land brought its true value, and that
the sale was fair, and this evidence the Court refused
to permit :

Held, That, as one object of the bill was to recover the
true value of the land, this was proper evidence, and
that as the jury had, by their verdict, failed to cancel
the deeds and return the land, but found a money ver-
dict, a new trial ought to be granted for this error of
the Court. Stripling et al. vs. Stripling et al............ 95
2. The claim set up by the executor in this case for
counsel fees and cost paid under the circumstances
proven, and when there was enough money in hand
at the time (1863) to pay the same, and which was
afterwards funded by the executor in Confederate
bonds and lost, is not a sufficient reason. Dorsey vs.
Simmons et al........

3. A sale of land by an administrator cum testamento an-
nexo, made under an order of the Court of Ordinary,
to pay the debts of the testator, where the estate is
insolvent, discharges the land of the lien of the ven-
dor for the unpaid purchase money, and the creditor

245

must look to the proceeds in the hands of the repre-
sentative of the estate. Stallings, ex'r, vs. Ivey, adm'r,
et al.......

4. A judgment was obtained against a party who died in
the latter part of 1863, testate, authorizing his execu-
tors to sell, either publicly or privately, certain of his
slaves. The executors qualified in December, 1863.
The judgment creditor, soon after the qualification of
the executors, urged them to sell the negroes, on ac-
count of the near approach of the Federal army.
The executors refused, and hired out most of the ne-
groes for 1864, but on the 6th of July, 1864, at the
solicitation of the creditors, plaintiff included, defend-
ants consented that they might be levied on and sold.
A levy was made the next day on all the slaves, and
they were taken in custody by the sheriff. In a few
days, on account of threatened raids by the Federal
forces, the negroes, by consent of the parties, were sent
off by a mutual agent. In a short time they returned,
but nothing further appears to have been done with
them by the sheriff or either of the parties:
Held, That the executors are not liable to such levying
creditor for not having sold the slaves prior to the
levy, it having been only seven months from the time
of their qualification as executors, and after the levy
was made, the negroes were in the custody of the law
at the instance of the creditor. Simmons vs. Byrd
et al...........

5. Where an executor advances a support to the family
of the deceased, although not specifically set apart by
appraisers, he is entitled to be credited with it in ac-
counting with the creditors and heirs, the burden being
on him to show that it was a proper and necessary
amount. Ibid.

6. A judgment creditor of a testator cannot recover in an
action on the case against an executor for not selling
certain articles of personal property, when the creditor
had it in his power to levy on the same, more especi-
ally if it be not shown that they were lost to the
estate by not being sold by the executor, and the execu-
tor points them out to the creditor and directs him to
levy. Ibid.

7. Conceding the right of the plaintiffs to institute suit
on the administrators bond for an unliquidated demand

274

285

against the intestate, which is left an open question in
this class of cases, it is incumbent on the plaintiffs,
when the plea of plene administravit is filed, to show
sufficient assets in the hands of the administrators to
meet the indebtedness, and the evidence being conflict-
ing on this point, this Court will not interfere. Mackie,
Beattie & Co., vs. Glendenning, adm'r, et al..........
8. It is immaterial who makes the application for the
twelve months' support for the family of the deceased,
so that the representative of his estate has notice;
therefore, such an application by the temporary admin-
istrator and the action of the Ordinary thereon, is not
void as against creditors. Ibid.

9. The legal representative of a deceased partner may be
sued in the same action with the survivor on a firm
contract. Garrard, ex'r, vs. Dawson.......

10. Courts of equity will not interfere with the regular
course of an administration, by appointing a receiver
to take the assets of the estate out of the hands of the
administrator, unless the danger be imminent, and the
charges in the bill be positive and specific. Powell vs.
Quinn et al..............

11. A factor or merchant holding a lien under section
1977, Irwin's Revised Code, when the maker thereof is
dead, may, in order to preserve his lien and such prior-
ity as he may be entitled to, if any, in the distribution
of his debtor's estate, make the affidavit required by
law for its enforcement within twelve months after the
qualification of the representatives of the estate, but
there can be no levy of the execution issued thereon
until after the expiration of the period of exemption
from suit, allowed executors and administrators. Mo-
ring vs. Flanders, adm'r......

12. Where a bill was filed against a defendant as admin-
istrator, seeking a decree against him in such represen-
tative capacity, a demurrer to an amendment charging
him individually, should have been sustained. Smith,
adm'r, et al., vs. Ardis, trustee......................

ALIMONY. See Divorce, 3, 4.

AMENDMENT.

1. The section of the Code of this State which declares
that pleadings may be amended, whether in matter of

367

434

523

594

602

form or of substance, provided there is enough in the
pleadings to amend by, properly construed, means, that
in order to admit of an amendment, a valid cause of
action must be set forth in the original declaration.
Selma, Rome & Dalton R. R. Co. vs. Lacey............. 106
2. In a suit by a widow, in this State, against a railroad
company for the killing of her husband in the State of
Alabama, the declaration cannot be amended after the
lapse of one year from the alleged killing, for the rea-
son that the statute law of Alabama limits the right to
recover damages therefor to one year from the time of
the death, and gives the right of action to the personal
representative of the deceased. Ibid.

3. In proceedings to foreclose a mortgage on realty, the
Court permitted the plaintiff to amend the pleading so
as to change the time mentioned therein as to the ma-
turity of the note set forth, from January 1st, 1869, to
January 1st, 1868:

Held, That such amendment did not introduce a new
cause of action, nor was the defendant, on that ac-
count, entitled to a continuance, unless he showed, as
is provided in section 3470 of the Code, "that he was
less prepared for trial, and how, than he would have
been if such amendment had not been made." Jones
vs. Henderson.....

4. Where a new trial was granted on an agreed state of
facts, which judgment was reversed in this Court, it is
competent for the movant to amend his motion before
the judgment of this Court is made the judgment of
the Superior Court, by showing that the facts were
agreed to under a mistake as to their truth. Daniel,
adm'x, vs. Foster, adm'r...............

170

303

5. When a judgment has been affirmed on a statement of
facts contained in the bill of exceptions, a different
question might arise, but in this case the judgment
was reversed, and the whole case was open for further
investigation, and the truth may be shown. Ibid.
6. Where the case stated in the body of the bill of ex-
ceptions is different from that stated in the certificate
of the clerk thereto, and in the record, the error in the
bill of exceptions is amendable so as to conform to the
record. Wooten et al. vs. Archer.......
..... 388
7. When, amongst other defenses, pleas have been filed
and stricken by the Court on demurrer, and such de-