not yet due, with leave to the mortgagee, to obtain an
order for the sale of the mortgaged premises, when the
remaining note reaches maturity.-ib.
4. The practice of the court of Chancery in this State, pre-
scribes no particular form of subpoena ad responden-
dum; it is sufficient, if the party on whom it is served,
is informed by it, that a suit is instituted against him, and
that a copy of the bill exhibited, is furnished to him at
the time of the service.-ib.
5. Where a decree is made, more than thirty days after ser-
vice of the subpoena, with a copy of the bill, on the de-
fendant; there is no error, so far as reference is had to
the time of making the decree.-ib.
6. Courts of Chancery possess the power to examine wit-
nesses, viva voce, for the purpose of proving witten in-
struments, and the Chancellor may state what the evi-
dence of the witnesses so examined, is.―ib.
7. Such written instruments need not be set out in the re-
cord and decree in hac verba.-ib
8. It seems, that the same degree of proof is not required
to support a decree pro confesso, as in other cases.-ib.
9. A reference to the master will not authorise a report by
him more extensive than the allegations and proofs war-
rant; and a report which is erroneous on its face, may
be inquired into, without any exception taken.—ib.
10. Where the evidence, which is relied on to support the
allegations of a bill, is all written, and a decree can be
rendered on its production, without difficulty,-refer-
ence to the master is unnecessary.―ib.
11. A writ of error will not lie to reverse an order dissolv-
ing an injunction-the remedy provided by law being
an appeal from the order of dissolution.Miller vs.
Goffe et al.
12. Where a party obtains an injunction from chancery, to
restrain the sheriff from paying over moneys in viola-
tion of his (the sheriff's) agreement, the party obtain-
ing the injunction is not required, as a condition prece-
dent, to release errors at law, in the judgment under
which the moneys were paid.-Bates vs. The Planters'
& Merchants' Bank of Mobile.
13. The lands of an adult cannot be sold by a decree of
the chancellor, to make partition, without his consent-
the proper mode of proceeding is, after partition made,
to direct each party to convey to the other.-Deloney
et al. vs. Walker et al.
14. Quere-Whether publication, under our chancery prac-
tice, is necessary, where non-resident defendants are in-
fants. Heirs of Dunning et al. vs. Stanton et al.
15. An order in chancery, made at the second term after
the filing of the bill, reciting that publication was duly
made, of an order of the previous term, requiring non-res-
ident infant defendants to appear, answer, &c.-appoint-
ing a guardian, ad litem, taking the bill pro confesso, and
referring it to the master to take and report an account
to the same term,-was held to be irregular.-il.
16. And a decree, rendered at the same term, confirming
a report of the master, (made in obedience to such or-
der,) and directing a sale of mortgaged property, with-
out an answer or proof by the guardian, is erroneous;
because the infant defendants are denied the benefit of a
full defence.-ib.
17. A plaintiff in equity, must recover upon the strength of
his own title, and not upon the weakness of that of de-
fendant. Joaquim Antones et al., Trustees of the
Church of the Holy Conception, in the City of Mobile,
vs. The Heirs of Don Miguel Eslava.
18. A deed, conveying lots of land in the city of Mobile, du-
ring the period the Spanish government was entitled to,
and exercised dominion over it,-"to His Catholic Ma-
jesty, for the purpose of building thereon a parochial
church and dwelling house, for the officiating priest,"
where the purchase money was paid from the Royal
Chests, does not constitute His Catholic Majesty a trus-
tee for the church, or transfer to it, in equity, a title to
the lots.-ib..
19. A father devised and bequeathed to his children, (being
a daughter and two sons, then infants of tender years,) a
large real and personal estate, to be equally divided be-
tween them. The share of the daughter was to be as-
signed her, if she desired it, when she married or attain-
ed her majority. The daughter married, and died about
three months thereafter, neither herself or husband hav-
ing, during the coverture, asked or desired a division of
the estate; but the executors still continued to hold the
same under the will. On a bill filed by the husband, to
obtain the wife's interest in her father's estate, it was held
that he was not entitled to recover; because the wife's
share had not been reduced into possession during her
life. Bibb vs. McKinley, Hopkins, and The Heirs of
Henry Chambers, dec'd.
20. The plaintiff also sought to recover by his bill, a female
slave and her children, alleged to have been given to his
wife by her grandfather, and delivered to the testator,
as her father and guardian by nature; which slaves came
to the possession of, and were still retained by the exec-
utors. Held, that from the plaintiff's own showing, his
remedy was complete at law, if he was entitled to the
slaves, and equity would not relieve him.-ib.
21. A defendant, whose demnrrer has been overruled, and
to whom time has been given to answer, may demur
again, without leave being specially granted, plaintiffs
having, in the mean time, amended their bill, by conjoin-
ing another person as complainant.-Moore et al. vs.
Armstrong et al.
22. It is available on demurrer, that a party has been join-
ed as plaintiff, who has no interest in the matters stated
in the bill.-ib.
23. An administrator and his sureties may be joined, or if
the administrator dies, leaving no property, or having no
personal representative within the State, his sureties
may be sued alone, in equity, before a liability has been
fixed upon their principal, by suit; and where it be-
comes necessary to proceed in equity, for the recovery
of a debt, legacy, or distributive share, all the obligors
in the administration bond, should be made parties.-ib. 697
1. Where a defendant is improperly permitted to assail the
character of plaintiff, there is no error in permitting
plaintiff to countervail it by evidence of good character.
-Findlay vs. Pruitt.
2. A witness, whose credibility is impeached, is sufficiently
sustained by proof that "his general character was
good, and that he was entitled to full credit on his oath."
McCutchen's admr's. vs. McCutchen.
1. Courts of law have for a long period taken notice of
the assignment of choses in action, and afford them eve-
ry protection not inconsistent with the principles and
proceedings of tribunals acting according to the course
of the common law.-Lamkin, adm'r, vs. Phillips.
2. In these respects, they endeavor to apply, as far as may
properly be done, the rules and doctrines recognised in
courts of equity.-ib.
1. It is the comity of nations, and not the comity of courts,
that authorises the administratiom of foreign laws within
the limits of a State: and where they are not repugnant
to local policy, or prejudicial to local interests,-the
courts can exercise no discretion on the subject.—Han-
rick vs. Andrews.
COMMISSION TO TAKE TESTIMONY.
1. Commissioners appointed to take the testimony of an ab-
sent witness, act under the authority of the court, and
are invested with power to administer the necessary oath,
and their certificate that such oath has been administer-
ed, is prima facie evidence of the fact, and must be con-
clusive; unless it be shewn that they have disregarded
their duties, or violated the trust reposed in them.-Ul-
mer vs. Austill.
2. The action of the commissioners, to be effectual as an
execution of delegated authority, must be within the pe-
riod designated in the notice given under the directions
of the clerk.-ib.
3. The party praying the commission, must give notice to
the adverse party, of the time and place ordered by the
court, judge, justice or clerk, when and where the com-
mission is to be executed.-ib.
4. The party wishing to take the deposition, cannot extend
the time to more than one day : but if the commission-
ers are unable to conclude the examination, they may
continue it from day to day.-ib.
5. Where a day is fixed for taking a deposition, the oppo-
site party need attend only on that day.―ib.
6. The acknowledgment of service of the notice of the ex-
amination of the witness, imposes no obligation on the
adverse party, which would not arise from its execution
by an authorized officer.
1. Where a law is plain and unambiguous, whether expres-
sed in general or limited terms, there is no room left for
construction, and a resort to intrinsic facts is not per-
mitted, to ascertain its meaning.-Bartlett & Waring
vs. Morris.
2. The title of a statute may explain what is doubtful, but
it cannot control what is contained in the body of the act.
-ib,
3. The rules of interpretation which apply to private sta
tutes, do not differ from those applicable to public and
general statutes.-ib.
4. The word may, when used in a statute, means must or
shall, in those cases where the public interest and rights
are concerned, and where the public or third persons
have a claim dejure, that the power designated should be
exercised.-Er Parte, William Simonton et al.
5. The terms "new grant," in the act of Congress of the
26th May, 1824, entitled "an act granting certain lots of
ground to the corporation of the city of Mobile, and to
certain individuals of said city," (1 vol. Land Laws, 398,
ed. of 1838,) will not embrace a grant of land made by
the Spanish Commandant of Mobile, in 1809.-The Heirs
of Pollard vs. Kibbe.
1. A defence of usury, as it avoids a contract, is allowable
under the plea of non-assumpsit.-Hanrick vs. An-
drews.
2. The intercourse of mankind requires, that the acts of
parties, valid where done, should be recognized in other
countries, provided they be not contrary to good mor-
als, and the policy of the State.--ib.
3. Personal contracts are to have the same validity, inter-
pretation and effect, in every other country, which they
have in the country where they are made, or are to be
performed: and parties are presumed to be conversant
of the laws of the country, in reference to which they
contract.-ib.
4. Contracts are to be construed or interpreted according
to the laws of the place where they are made-unless
they are entered into with a view to the laws of some o-
ther State.-ib.
5. Where parties enter into a contract, withont any stipu
lation for interest, but upon which, on default of pay-
ment, interest accrues-its rate must be admeasured by
the scale prescribed by the laws of the country where
the contract was made: unless the parties contracted
in reference to another jurisdiction--in which case, the
law of the place of payment will govern.--ib.
6. Where a bill is drawn in New York, payable in Alabama,
which does not contemplate the payment of interest on
its face and interest is only to accruc in default of pay-
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