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and a sale of the lands for the discharge of his lien: on this bill it was held— 1st. That the recording of the mortgage taken by B under the acknowledgment before one justice of the peace, could not operate as a notice to C of the incumbrance upon the land. 2d. That the land should be sold by the master in chancery (giving C time to discharge the amount of the incumbrance) and the proceeds, after first discharging the amount advanced by C, before notice of the incumbrance, applied to the payment of the sum due B under the mortgage. Dufphey v. Frenaye, 5 S. & P. 215. 26. In cases of trust, fraud, accident, or mistake, chancery is competent to afford relief, and when there has been a breach of trust, or a fraud committed by setting out a conveyance as an absolute sale, in violation of a parol agreement, between the parties, expressed and understood at the same time, that it should operate only as a mortgage, it will be sustained as a mortgage, notwithstanding the answer positively deny the parol agreement if it be sufficiently proved, and the mortgagor or vendor has not participated in the fraudulent intent. English v, Lane, 1 P. 328.

27. Where A having slaves levied on under execution in favor of the Tombecbee bank, and being about to discharge the same by payment of the notes of that bank, was hindered from so doing by the representations of B. that it would not be a good payment, but who, on an agreement with A, paid off the execution in the same money, and took a purchase of one of the slaves, with a condition of redemption in three months, the court on a bill filed after the expiration of three months-held the transaction a mortgage, and decreed restitution on the payment by A of one half the nominal value of the Tombecbee bank notes, paid by B in discharge of the execution. May & May, ex'rs. v. Eastin, 2 P. 414. 28. The general rule that a mortgagor seeking to redeem, must pay costs, does not apply to a case where the mortgagee sets up an absolute title in himself. 1 bid.

29. A mortgage of lands, after the mortgagor has by previous deed conveyed the same premises to a trustee, for the payment of a debt, would under a foreclosure and a deed under it, carry only such interest as the mortgagor has left after the trust deed is discharged.

Wiswall v. Ross & Earle, 4 P. 321. 30. A mere equity of redemption in personal property, unaccompanied by possession in the mortgagor, cannot be reached by execution, and made the subject of levy and sale.

Perkins & Elliot v. Mayfield, 5 P. 182.

31. Where a deed of slave was executed by one as an indemnity to others who became his sureties to a bond as executor, and by the terms of the deed the sureties were authorized to sell the slave upon becoming liable as the sureties of the executor, at such time and place as they might choose-it was held that the slave could not be sold under an execution issued upon a decree, obtained against the executor as such, it appearing that outstanding claims still existed, upon which the sureties might be liable.

Ibid.

32. It seems that an issue between a plaintiff in execution and a claimant of property, levied on under it, should conform to the amount of the interest sought to be contested: as if an equity of redemption be in controversy, the issue should seek to condemn that alone, and not the entire estate.

See Chancery-Costs-Detinue-Execution-Trover.

Ibid.

NEW TRIAL.

1. Refusal to grant new trial upon the ground that the verdict was contrary to the evidence, not subject to be reviewed in the supreme court.

Phleming v. State, A. R. 43.

2. On an application for new trial, this court will not reverse the decision of an inferior court. Lecutt v. Stewart, 2 S. 474.

Fennell, Davis & Co. v. Patrick, adm'r. 3 S. & P. 244.
Malone & Lake v. Easton & Gayle, 2 P. 182.

3. The refusal of a common law judge to grant a new trial, in a case adjudged before him and where all the facts were properly cognizable, is not a good cause for an application to chancery.

Haughy v. Strang, 2 P. 177. 4. When part of a term was held by one judge and part by another—held, that the latter was not precluded from considering a motion for a new trial in a cause adjudged by the former.

Malone & Lake v. Easton & Gayle, 2 P. 182. 5. Although the supreme court will not revise the decision of an inferior court refusing a trial upon the merits of the case, yet the competency of such court to grant it is a proper subject of revision,

Barr v. White, 2 P. 342.

6. By the practice in this State, the term of the court is the limit within which the power of granting new trials is to be exercised. Ibid.

7. Whether in a proceeding before justice of the peace for forcible entry and detainer, the justice has the discretionary power of granting a new trial on merits-quere? Ibid

8. When after judgment for defendant on unlawful detainer, a justice, after three days consideration granted a new trial to plaintiff, and gave a new judgment, without notice to defendant-held to be error. Ibid.

9. Whether after two new trials at law, chancery can decree a third— quere. Wither's ex'rs. v. Dickeys, 1 S. 190. 10. The neglect of a party in a trial at law, to avail himself of a continuance or new trial when he could have done so, is no ground for the interference of chancery in his behalf. Naylor v. Phillips, 2 S. & P. 58,

11. Decisions of inferior courts, in respect to motion for new trials, are matters within the judicial discretion of the presiding judge, and though it is the duty of such courts, in reference to matters within their discretion, to govern themselves by the rules established by the supreme court, except there be special causes for a contrary course, yet generally such decisions are not the subject of revision in error.

Fennel, Davis & Co. v. Patrick's adm'rs. 3 S. & P. 244. 12. After issue and verdict in a case of the trial of the right of property, for two slaves, the court has no right to sever and grant a new trial as to one slave, and refuse it as to the other. Dale v. Mosely, 4 S. & P. 371.

23. In such case, a writ of error taken to reverse the condemnation as to one, while the judgment as to the other, in reference to whom the new trial is refused, is pending-held irregular, and will be dismissed. Ibid.

14. A bill in the nature of one for a new trial at law will not be enterMcGrew v. Tombecbee Bank, 5 P. 547.

tained.

NON SUIT.

1. Non suit must be ordered if in an action by indorsee against indorser, he fail to prove demand and notice of non payment.

Ward v. Gifford, A. R. 5. 2. The court cannot non suit plaintiff except in cases especially provided Smith, admr. v. Taylor & Seaton, A. R. 75.

for by statute.
3. On a non suit not voluntarily taken, writ of error lies.

Phillips v. Jordan, 3 S. 38.

4. When the indorsee of a note sues the maker and indorser jointly under the act of 1828, defining the liability of indorsers, if he discontinue as to the maker, he not being found, it is a discontinuance as to both. Ibid.

5. A dismissal and a non suit are not equivalent to two non suits, under the statute. Bullock v. Perry, adm. 2 S. & P. 319. 6. Verdict for less sum than inferior court has jurisdiction of, will not be disturbed, unless motion for non suit has been then made.

Howard v. Ware, A. R. 84.

7. And if proper affidavit be made, should not be ordered.

Curtiss v. Garey, A. R. 118.

8. A writ of error does not lie on a voluntary non suit.

9. Whether the court can order a non suit-quere,

Cain v. Byrd, 1 S. 189.. Phillips v. Jordan, 3 S. 38.

NE EXEAT REPUBLICÆ.

1. Writs of ne exeat in this State may be granted in the following courts when the demand is exclusively equitable, whether a sum certain be due or not, and the defendant is about to remove beyond the jurisdiction of the court, on a sufficient affidavit. Lucas v, Hicksman, 2 S. 111.

2. When courts of law and equity have concurrent jurisdiction, the defendant being about to remove, and when bail has not been obtained, and in the action commenced at law, the writ will be granted in aid of the action at law. Ibid.

3. When the two courts have concurrent jurisdiction, and no action has been commenced at law, but suit has been instituted in equity, the writ will be granted if the party is about to remove.

Ibid.

4. Semble, when from the extreme necessity of the case, and to prevent a failure of justice, it becomes necessary-it also appears that the writ will be granted. Ibid.

5. When A being the administrator of his father's estate, and to secure certain family slaves, procured an agent to attend the sale of the estate, and purchase the slaves in question at a fair price, and B having a deed of trust upon the slaves, which was wholly unknown to the administrator or the agent, attended the sale, but concealed the existence of the deed, and after

wards took possession of the slaves in the right time, and under circumstances to induce A to believe that they were about to be removed without the limits of the State-held that these circumstances, especially the concealment of the deed, and the fact of the slaves being family property, so as to render their restoration in specie desirable, presented a proper case for chancery jurisdiction, and authorized the issuance of a ne exeat.

Baker v. Rowan, 2 S. & P. 361.

NOTARY PUBLIC.

1. A notary public is an officer known to the law merchant, and of conse quence to the common law of which it is a part.

Kirksey v. Bates, sur. 7 P. 529. 2. Notaries public are authorized by the common law to provide their Ibid.

own seals.

3. The creation of the office by statute, authorizes the officer to act in the form prescribed by the common law, as it is impossible for him to use the seal required by the legislature: the right to perform notarial acts having also been recognized by several subsequent statutes. 1bid.

4. The requisition of the seal required by the statute 1803, must be regarded as obsolete by the omission to declare what are the arms of the State. Ibid.

5. The acknowledgment, properly certified, of the execution of a deed before a foreign notary, without registration here, would be sufficient to authorize its reception, in evidence under the acts of 1803 and 1812. Toulmin v. Austin, 5 S. & P. 410. 6. The protest of a notary public, stating that notice was given to the agent of a party, of the protest of his paper, is not evidence of such agency so as to make the notice sufficient. O'Connell v. Walker, 1 P. 263.

NUISANCE.

1. The principles which govern a court of chancery in entertaining an information to restrain the exercise of a public nuisance, or to abate one,

are:

1. To prevent irreparable injury from accruing, before a court of law can act definitively.

II. To avoid protracted and expensive litigation.

State v. Mayor and Aldermen of Mobile, 5 P. 279.

2. Where the city corporation of Mobile were vested by charter with power to regulate the streets, under certain restrictions: one of which was that Government street should be and remain one hundred feet in width, and the corporation were proceeding to erect extensive market houses in the cen

tre of that street-on a bill in the nature of an information, filed by the State solicitor, praying an injunction, whereby the corporation might be restrained in the erection of such buildings, it was held :—

1. That the expression in the act of incorporation of the city, that Government street should be one hundred feet, was equivalent to a declaration that the street should remain open, of that width, independent of any act to be done by the corporation.

II.-That independent of any implication which might arise from the act of incorporation itself, the erection of the market buildings in the centre of the street, was a nuisance-it appearing that thereby the passage through the street was incommoded.

III. That in such a case chancery might well entertain a bill in the nature of an information, filed by the State's counsel for the object of affording redress. Ibid.

3. Where by the terms of a private statute, a privilege was granted to certain persons to erect mills upon a river, which privilege in a certain court was subject to revocation, and the judge of the county court was vested with power, on the happening of a contingency, to abate the mills as a nuisance-it was held that such statute did not divest the circuit court of its ordinary jurisdiction, in the abatement of the nuisance by indictment. State v. Bell, 5 P. 365.

4. Though it seems that one might be found guilty of a nuisance in the erection or continuance of the mills, if erected in strict conformity with the provisions of the statute, until the privilege granted under the act, had been revoked in the manner pointed out in the statute. Ibid.

5. But this being a matter resting on the evidence, this court in the absence of a question raised on the point, would presume a jury had been satisfied; that a defendant against whom a verdict in such case had been rendered, had not complied with the terms on which the privilege was granted, or had continued the nuisance after it had become unlawful, or that the requisition abating the nuisance had been made. Ibid.

6. One indicted for a nuisance cannot defend against the legality of a conviction, by alledging that he only acted as the agent or overseer of another.

Ibid. 7. A vendee of land after special request to remove a nuisance erected before his purchase, can maintain an action for its continuance. Loftin v. McLennan, 1 S. 133.

8. One sued as a tort feasor for damages for a private nuisance, cannot defend on the ground that he has injured plaintiff in the enjoyment of a right which he had no authority to exercise. Thus in an action on the case against one for obstructing plaintiff in the use of a mill, evidence is not admissible to show that proceedings are pending between plaintiff and defendant in the county court on an application to establish a mill, and that the defendant made the first application to the county court for a writ of ad quod dumnum. Hendrick v. Johnson, 5 P.209. 9. The streets of an incorporated town are its highways, subject in general to such improvements and alterations as its legislative authority may prescribe, with a due regard to individual interest.

State v. Mayor and Aldermen of Mobile, 5 P. 279. 10. A city corporation would not be authorized to exercise the right of appropriating streets, or to narrow or widen them, unless vested with such power expressly by its charter, or in carrying out an incident to such express delegation.

Ibid.

11. Any obstruction in a highway or street tending to the annoyance of persons living near them, or which renders the passage through such high

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