Gilchrist v. Gilmer
Supreme Court of Alabama
Writ of Error to the Court of Chancery for the twelfth District. The bill is filed by Gilmer, as a cestui que trust under a deed executed by one Ryan, as the surviving partner of Porter & Ryan, against Gilchrist, the surviving trustee, and Ryan is also made a party.
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Writ of Error to the Court of Chancery for the twelfth District. The bill is filed by Gilmer, as a cestui que trust under a deed executed by one Ryan, as the surviving partner of Porter & Ryan, against Gilchrist, the surviving trustee, and Ryan is also made a party. The object of the bill is to compel the trustee to apply the proceeds of the effects of the trust to the payment of the cestui que trust, and the parts of the deed out of which the principal question arises are as follows, to wit: The deed first recites, that the firm of P. ty R. was indebted to Nelson, Carleton & Co. in the sum…
1Opinion of the CourtGoldthwaite, J.
1. Although it is evident enough the party has mistaken the sum for which the bill of exchange was drawn, the amount of which he now seeks, with other sums, to recover, yet it is a mistake to confound a misdescription like this, with the serious defect of omitting to prove the case stated by the bill. The general rule is familiar, that the proof must correspond with the allegation. [Gibson v. Carson, 3 Ala. Rep. 421; Clements v. Kellogg, 1 Ib. N. S. 330.] But we apprehend it applies only when the evidence discloses a cause for relief different from that set up by the party pleading it. It is…
2Cases cited1 opinion
- Gibson v. Carson's adm'rSupreme Court of Alabama · 1842
3Cited by5 opinions
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- Bryan v. HendrixSupreme Court of Alabama · 1876
- Day v. PreskettSupreme Court of Alabama · 1867