SWIFT, et al. vs. STEBBINS and HUNTER.
was the more necessary, as the trustee had not been directly appointed by her, but by the will of the first
The trustees selected by the parties, can certainly as well represent the interest of the creditors for whom they act, as a part of the creditors could that of the rest.
This reasonable doctrine is fully sustained by Mitford, in his Treatise on Chancery Pleading, (page 142.) He says, "trustees of a real estate for payment of debts or legacies, may sustain a suit, either as plaintiffs or defendants, without bringing before the Court, the creditors or legatees for whom they are trustees, which in many cases would be almost impossible; and the rights of the creditors or legatees would be bound by the decision of the Court against the trustees."
As the object of the bill is simply to enable the trustees to execute the trust confided to them, and no act can be required to be done by the creditors; the demurrer is believed to have been properly overruled.
The decree must be affirmed.
TO THE PRINCIPAL MATTERS CONTAINED IN THIS VOLUME:
1. The want of an endorsement of the cause of action on a
writ, may properly be plead in abatement.-Johnson vs Perry. 45
2. In trying the question of the indebtedness of a garnishee, in
attachment, no formal issue is required, farther than a denial
of his indebtedness, and a response, averring it, by the plain-
tiff.-Thompson vs Allen.
3. Where a garnishee in attachment denies his indebtedness,
which denial is contradicted by oath of the plaintiff, and an
issue is formed to try the question; the garnishee is liable
for costs, if the issue be found against him.-ib.
4. Under the attachment laws of this State, a levy of the at-
tachment upon property, is equivalent to the personal service
of process: and the summoning of a garnishee, (if indebted
to the defendant in the attachment,) is, to this end, a levy up-
on property.-ib.
5. So, to give a Court jurisdiction of an attachment cause, it is
sufficient, that the summons of garnishment has been execu-
ted upon one, indebted to the defendant, at the time of the
service of process.-ib.
1. Under a verbal sale, at a particular sum, of three distinct
parcels of land, two of which are taken possession of, by the
vendee, and a portion of the whole sum stipulated to be paid,
received by the vendor; a right of action does not accrue in
favor of the latter, to recover the balance of such sum, for the
third parcel, not taken possession of, by the vendee on the
ground of an entire contract.-Meredith vs Naish.
1. Where proceedings, to try the right to property levied on un-
der an execution, are pending, and the plaintiff files a bill in
Chancery, to subject such property, as trust estate, to the
payment of the same debt; he can not be forced to elect
which remedy he will pursue, until he has had the benefit of
the defendant's answer.-Houston & Gillespie vs Sadler et al. 130
1. Where an agreement was entered into by three persons,
whereby it was declared, that C contracted as the party of
the first part, and D & N, as partics of the second part; it
was held, that D & N were partners in respect to such agree-
ment; so as to be jointly liable to C, for his proportion of prof-
its, arising under the agreement, declared on settlement.-
Drake vs Reed.
2. Where on a settlement in such case, a balance was declared
as due to C, under the agreement; and D endorsed such fact
on the back of the agreement, stating it to be due to C, from
N & D, and in N's hands, and subscribed it "N & D"-held
that C's assent, by the words " very well," to the understand-
ing that the said balance was in N's hands, did not bar his
claim, against D's liability as one of the partners. -ib.
3. One, having a joint claim or demand against two, can not be
held to release the liability of either, by a mere verbal acqui-
escence, (unaccompanied by a positive assent, on sufficient consi-
deration,) in an arrangement by which it is agreed between
the two liable, that one shall discharge it. -ib.
1. Where a plaintiff, in a suit before a magistrate, appeals to a
Circuit Court, he can not, at the first term, take judgment by
default, against the defendant, without notice of the ap-
peal.-Wiggins vs Perryman.
1. Under the common counts in assumpsit a party may recover
for what he has performed under a special contract, (though
in a manner variant from the terms,) notwithstanding there
remains some part of the defendant's agreement unfinished.--
Hancock vs. Tanner & Evans.
2. So, where A, under a special contract, agreed, in considera-
tion of a sum, advanced by B & C, to deliver cotton, which
was to be sold at New Orleans; and, at the time, delivered
part thereof, which was sold at Liverpool-and the balance
was not delivered; it was held that B & C might abandon the
special contract, and recover under the common counts, the
overplus of the sum advanced.-ib.
1. The Supreme Court will not entertain a motion for an attach-
ment, for the breach of an injunction, perpetuated here, on
appeal from an inferior court.-Gates vs M'Daniel et al.
2. Disobedience to the order or decree of this Court, in cases
removed from inferior courts, must be redressed by applica-
tion to the tribunal, from whence removed.-ib.
3. Goods taken in attachment, for sums exceeding the jurisdic-
tion of justices of the peace, are repleviable, only by the de-
fendant in the attachment, his attorney, agent or factor.-
Cummins vs Gray.
4. In such case, where goods are replevied by a stranger, (not
being the attorney, agent or factor of the defendant,) and a
bond is executed, such bond, assigned by the sheriff to the
plaintiff in execution, furnishes to the latter no legal cause of
action against the obligor.-ib.
BANK OF THE STATE OF ALABAMA.
1. In a proceeding by notice, under the charter of the Bank of
the State of Alabama, to charge one as the acceptor of a bill
of exchange, positive proof must be shewn, in the record, to
have been made, of an acceptance by him.-Walker vs The
Bank of Alabama.
2. In such cases, an allegation, in the notice, that the President
and Directors, are the "the holders and owners" of the bill
of exchange sued on, is equivalent to an averment, that the
bill is the property of the bank.--ib.
3. A jndgment by default, in cases of this character, is no ad-
mission of the cause of action; and it must be proved, (and
entered in the record,) whether the judgment be by default
or otherwise.--ib.
1. Where slaves were, by the will of a testator, lent to a daugh-
ter, during her life, and on failure of heirs of her body, re-
mainder to others; and afterwards, before the testator's death,
the daughter married, and the slaves were occasionally in
possession of herself and husband; it was held, that the terms
of the bequest could not be defeated by the fact, that the
slaves had thus gone into her possession, on marriage-and
by setting up such fact, as a parol gift-it appearing that all
parties, at the time, recognised the bequest and limitations by
the will, and acquiesced therein.-Hogan vs Bell et ux.
2. To perfect the title of a husband to the choses in action of
the wife, it is essential that during coverture, he reduce them
into possession.--ib.
3. But where slaves were bequeathed to a testator's daughter,
during life, with a limitation to her sister and brothers, in the
event of her dying without heirs of her body; and a release
of the contingent estate was afterwards made by two of the
residuary legatees, to the daughter, and a third died during
her lifetime, a minor-it was held, that the descent from the
deceased brother, and the release of the interest of the two
others, being valid, vested a sufficient possession in the hus-
band of the daughter, to authorise a recovery by him of that
portion of her estate in the slaves, so released, and claimed
by descent.-ib.
1. Where slaves were, by the will of a testator, lent to a daugh-
ter, during her life, and on failure of heirs of her body, re-
mainder to others; and afterwards, before the testator's death,
the daughter married, and the slaves were occasionally in
possession of herself and husband; it was held that the terms
of the bequest could not be defeated by the fact, that the
slaves had thus gone into her possession, on marriage-and
by setting up such fact, as a parol gift-it appearing that all
parties at the time, recognised the bequest and limitations by
the will, and acquiesced therein.-Hogan vs. Bell et ux.
286
2. In a case where a testator bequeathed slaves to his daugh-
ter for life, remainder (in the event of her having no issue of
her body,) to the testator's four children-held, that the inter-
est of the residuary legatees in the slaves, was assignable,
in their lives; and descendible, on their decease, to their le-
gal representatives.-ib.
3. But where slaves were bequeathed to a testator's daughter,
during life, with a limitation to her sister and brothers, in the
event of her dying without heirs of her body; and a release
of the contingent estate was afterwards made by two of the
residuary legatees, to the daughter, and a third died during
her life-time, a minor--it was held, that the descent from the
deceased brother, and the release of the interest of the two
others, being valid, vested a sufficient possession in the hus-
band of the daughter, to authorise a recovery by him, of that
portion of her estate in the slaves, so released and claimed
by descent.-ib.
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