95. An indictment for playing at cards, under the statute, need not aver that the game was played with any other person. Coggins v. State, 7 P. 263. 96. The placing of money or its representative on the gaming table, is a sufficient offer to bet; and, if no objection is made by the player or owner of the table or bank, it is an acceptance of the offer and the offence against the statute is complete, although circumstances may prevent the playing out of the game and the stake be neither lost or won. State v. Welch, 7 P. 463. See Abatement. Constitutional Law. Duelling. Errors & Appeals. Jury & Jurors. Master & Slave. Points Referred. Recognizance. COURTESY. 1. A previous peaceable possession, under claim of title, though for less than 20 years, when there has been no abandonment, is prima facie sufficient evidence of an estate of inheritance in the wife, so as to sustain a claim of courtesy by the husband. Smoot & Nicholson v. Lecatt, 1 S, 590. Rochon v. Lecatt, 1 S. 609. 2. A decree of divorce, a mensa et thon, pronounced against the husband, does not bar him the right of courtesy. Ibid. 3. An anti-nuptial agreement, whereby the husband relinquished all right to the property in question, and agreed the wife should retain it to her own use, adjudged not to bar the right of courtesy; nor would an injunction granted on said agreement, in the life-time of the wife, prohibiting the husband from intermeddling with her property. Ibid. 2 S. 429, same case. 4. A plaintiff claiming as tenant by the courtesy, may recover possession of the premises in the ordinary form of an action of trespass to try title. Rochon v. Lecatt, 2 S. 429. CUSTOM AND USAGE. 1. A custom among navigators of steamboats on a river to preserve particular situations in ascending and descending, would seem salutary and reasonable, and such custom would bind navigators to its observance, and a failure to do so would be at the peril of the owners. Jones et al. v. Pitcher & Co., 3 S. & P. 136. 2. The custom of merchants and others in Alabama, is recognized as a part of the law when it is offered to prove what was the intention of parties to a Sampson & Lindsay v. Gazzam, 6 P. 123. contract. Ezell. v. Miller, 6 P. 307. 3. If by the usage or practice of one class of a community, words are used in a different sense from their acceptation among others not engaged in the same pursuit, their language ought not to be interpreted by a rule not within their contemplation at the time of making the contract-thus parol proof is admissible to show that the words "dangers of the river" in a bill of lading, are by the usage and custom of merchants, understood to include other casualties than those arising from the element of water. Ibid. DAMAGES. 1. Ten per cent damages to be adjudged in all cases on judgment affirmed on writ of error, or appeal taken since act of 1820. Heart v. Judson, A. R. 135. 2. Fifteen per cent damages, statute 1822, to be allowed by circuit court on affirming judgment of county court. Otey, adm'r v. Rives, A. R. 401. See also Ward et al. v. Alexander & Betts, 1 S. 382. 3. Damages for mesne profits may be recovered in an action of trespass to try title, as well as the possession. White v. St. Guirons, A. R. 331. 4. For an injury done to the person, smart money, or exemplary damages may be given. Rhodes v. Roberts, 1 S. 145. 5. Action by indorsee v. indorser, the true consideration of the indorsement is the measure of damages, and may be inquired into. Cook v. Cockerel, 1 S. 475. 6. In trespass for assault and battery, the defendant may prove in mitigation of damages, that the plaintiff consented to be whipt. Hogan v. Austin, 1S, 476. 7. Damages given on the affirmance of a judgment in the circuit and supreme courts, bear interest until paid. Sanders & Fenwick v. Rives, 3 S, 109. 8. Upon contract to use certain cotton presses for compressing cotton, when the consideration money was paid, and the contract afterwards violated, the damages are to be estimated by the amount of injury sustained; the consideration money is not the criterion. Terry v, Eslava, 1 P. 273. 9. A judgment cannot be reversed for excessive damages when it corresponds with the verdict, and there is nothing in the record conclusively showing that the verdict is unjust or illegal. Moore v. Coolidge, 1 P. 280. See Certiorari-Detinue-Sheriff-Trespass and Ejectment—Trover. DEBT. 1. Debt lies on a promissory note to pay a sum of money on a day certain; or, on demand, to pay the amount in merchandize-and it is not necessary on such action, to aver a demand for, and refusal to pay in merchandize. Henry v. Gamble & Whitlow, A, R. 15. 2. Debt lies on a contract under seal, for payment of a sum certain at a fixed time, "which may be discharged in cotton. The obligee had only a right to demand the money. Bradford et al. v. James Stewart, Ă. R. 44. 3. The bearer of a sealed note payable to T or bearer, cannot maintain Howell & Smith v. Hallet, A. R. 102. debt on it. 4. Debt on note, the writ should claim the specific sum due, and the interest claimed under damages. Butler v. Limerick, A. R. 115. 5. Debt will not lie by indorsee v. indorser, as the undertaking is collateral Whiting v. King, A. R. 122. and contingent, 6. Debt against one of several obligors-it is not necessary to aver that the others failed to pay. Clay v. Drake, A. R. 164. 7. Debt lies on a note to pay money which may be discharged in cotton. Bradford v. Stewart, A. R. 44. Lane v. Kirkman, A. R. 411. 8. In debt, the pleadings must be consistent, and show a certain sum due with sufficient precision and certainty to enable the court to render judgment, on demurrer. Mc Kennie & Bennock v. Connor, 1 S. 162, 9. In debt, on record of a judgment in another State, payment, and accord and satisfaction are good pleas. Hardwick v. King, 1 S. 312. 10. Debt lies in this State against an executor for a legacy, and in such action the legacy being in his hands, he is liable de bonis propriis. Petigrew v. Petigrew, 1 S. 580. 11. When judgment is on demurrer, default, or nil dicit, it is final, Ibid. 12. In debt on record from a sister State, under the issue of nul tiel record, if a duly certified exemplification is produced, of a judgment valid in the state where rendered, though not founded on personal service-judgment must be given for plaintiff. Hunt & Condry v. Mayfield, 2 S. 124. 13. In such action nul tiel record is the only general issue, but is not the only plea that may be pleaded. Ibid. 14. In debt, on record from a sister State, a plea alledging that such judgment was entered of record by a deputy clerk, fraudulently, and by reason of a combination with plaintiff, is bad on demurrer, and may be stricken out on Lucas v. Copeland, 2 S. 151. motion. 15. In debt on bond, it is sufficient if breaches are assigned in the replication, and it is not error that the declaration is on the penalty only, the statute of 9, William III. did not alter the practice in this particular. Davis v. Dickson, 2 S. 370. 16. The action of debt will lie upon the decree or order of the county court, directing a sum of money to be paid by an administrator, which does not appear upon inspection to be void. Morrison, adm'r. v. Morrison, 3 S. 444. 17. The action of debt is maintainable in this State, on a decree in chancery for the payment of money rendered in another State. Greene v. Foley, 2 S. & P. 441. 18. And in such action, when the decree adjudged the rate of interest, judgment may be given therefor without the intervention of a jury. Ibid. 19. Debt may be sustained jointly against a sheriff and his sureties upon his official bond, for a failure to pay over money collected by him, without first establishing the liability and default of the sheriff by a seperate suit, and it is a sufficient assignment of breach to aver a general receipt of the entire amount collected. Gov'r. for use v. White, et al. 4 S. & P. 441. 20. The action of debt lies against the maker of a note by the bearer. Carroll v. Meeks, 3 P. 228. 21. The action of debt is a proper remedy on a bond conditioned for the performance of covenants. Watkins, et al. v. Ocheltree, et al. 5 P. 395. 22. The 1st section, statute 1824 "regulating proceedings on penal bonds" is almost a literal transcript of the 8th section of 8 & 9, Wm. 3.— The decisions made under the latter, must control the construction of the former, and these have determined that such bonds may still be sued on in an action of debt. Ibid. See Bailment Judgment-Verdict. DEBTOR AND CREDITOR. 1. A debtor who secured a debt by a deed of trust, on a defect in the deed being discovered, confessed judgment to the creditor, under which the property was afterwards sold-held to be no fraud on the other creditors. Mc Broom v. Turner & Rives, 1 S. 72. 2. A deed of assignment by a debtor of all his effects for the benefit of all his creditors, is not void on account of the debt and property not being particularly described and specified. Robinson v. Rapely & Smith surs. 2 S. 86. 3. Such deed will be operative against an attaching creditor here, though made in New York. Ibid. 4. A debtor has a full right to prefer some creditors to the exclusion of others, and may lawfully stipulate that those who accept of the property conveyed, shall release him, the contract being voluntary. Ibid. 5. The insolvency of the debtor does not vary these rules, no bankrupt law being here in existence. Ibid. 6. Chancery will lend its aid to a creditor to pursue an equitable fund for the satisfaction of his debt, provided he cannot obtain satisfaction at law, and when such creditor has subjected the fund by reason of his superior diligence, he will be entitled to retain it exclusively towards the satisfaction of his debt; and the creditor who first applies to chancery is entitled to the preference. Lucas, et al. v. Atwood, 2 S. 378. 7. A conveyance with intention to hinder or delay creditors in the collection of their debts, is void as against them, although on valuable consideraBowman, et al. v. Draughan, ex'r. 3 S. 243. 8. A justice of the peace who receives money in his official capacity, cannot retain it for a debt due him individually. tion. Prewitt for Johnson v. Marsh, 1 S. & P. 17. 9. Though a debtor in failing circumstances may prefer one creditor to another in a deed of assignment, yet if he reserve any benefit to himself, the whole deed will be declared fraudulent and void, and the preferred creditors will take nothing thereby. Richardson v. Hazard 1 S. & P. 139. 10. The creditor first in point of time in pursuing legal means to obtain payment of his debt, his lien in equity will be extended back to the time when his legal remedy failed. But this principle is not to be so construed as to prevent a debtor from preferring one bona fide creditor to another. Eaton v. Patterson & Hinchman, 2 S. & P. 9. 11. When the note of a stranger is received by a creditor from his debtor, as collateral security for a debt, the creditor is not bound to notify the debtor of a proposition of the stranger to discharge the note in property, though by a failure to receive such property, the amount of the note is ultimately lost. Rives & Mather v. M'Losky & Hagan, 5 S. & P. 330. 12. It is competent for defendant to show that an instrument assigned as collateral security for a pre-existing debt, was good and available in the hands of the plaintiff at the time of the assignment, and afterwards. Troller v. Crocket, 2 P. 401. 13. A holder of such collateral paper is not bound first to sue thereon, or to offer to return the same, in order to maintain an action on the original debt or consideration; but if he be guilty of laches, he will loose his right to recover on the original debt. Ibid. 14. When a debtor in insolvent circumstances, against whom a suit was pending for a large amount, had his property sold under a deed of trust; and the property was purchased by his friends and delivered to him, and by the debtor, delivered to his son, who was of limited means, and then by him taken to another State-it was held there being no proof that the sale to the son was bona fide, that the transaction was fraudulent as against the suing creditor, and chancery would decree the proceeds of the property to pay the judgment of the creditor. Overton, ex'r. v. ex'r Morris, 3 P. 249. 15. The insolvency of a debtor can only be established by an exhaustion of all the means supplied by law against the purse of a debtor, and the insolvency of a party will not be presumed on the bare return of nulla bona to a fi fa issued against his effects. Troller v. Crocket, 7 P. 166. 16. Under the statute 1811, debt lies to recover the penalty for marking hogs without consent of the owner. Reagh v. Spann, 3 S. 100. DEED. 1. A deed of land is good though not attested or recorded, and may, by proof aliunde of sealing and delivery, be read in evidence. Robertson & Barnwell v. Kennedy & Kitchen, 1 S. 245. 2. Deed of assignment by a debtor of all his effects for the benefit of his creditors, is not void because the debts and property are not specifically described and set forth. Robinson v. Raplye & Smith, surs. 2 S. 86. 3. And such a deed will operate against an attaching creditor in this State, although made in another State, if preferred in time. Ibid. 4. A voluntary settlement in favor of children, set aside as fraudulent as against existing creditors, the grantor being largely indebted at the time of Cato v. Easley, 2 S. 214. conveyance. 5. The absence of the positive assent of any of the creditors to a deed of assignment, does not invalidate it when the deed is absolute of all the effects of the debtor, for the benefit of all the creditors, unconditionally. Pope v. Brandon, et al. 2 S. 401. 6. Inadequacy of consideration to invalidate a deed, must be gross. Ibid. 7. Deed not necessary to be recorded if made bona fide and for a valuable consideration as against creditors, and such deed is good against a purchaser at sheriff sale with notice, Avent v. Read, 2 S. 488. 8. A deed of trust regularly executed and recorded for the benefit of a creditor, will not be rendered invalid for the want of the signature of a trustee merely. Dewoody v. Hubbard, 1 S. & P. 9. |