Volume 100 — Alabama Reports

Erom the Circuit Court of Wilcox. Tried before the Hon. John Moore. The juries for the week of the term of the court when defendant was tried were summoned and organized pursuant to an act approved February 18, 1893,' which is as follows: Section 1. Be it enacted by the General Assembly of Alabama, That the grand and petit juries in the county of Wilcox shall be drawn and organized as provided by articles 1 and 2 of chapter 4, title 3, part 5 of the Code, of Alabama.

Tried before tbe Hon. Thomas M. Arrington. Levi Upshur was indicted in one count for unlawfully disposing of a horse upon which there was á lien, and, in another count, for embezzling the same horse. There was a general verdict of guilty, and he appeals.

Clair. Tried before the Hon. LeEoy E. Box. John A. Karr was indicted and tried for the murder of Jason Smith, and convicted of murder in the second degree. The evidence, without conflict, tended to show that at the time the said Smith was shot by the defendant he had a gun in his hand, starting up the steps of the defendant’s house, but that the gun- was not held by the deceased as if he was about to shoot.

Tried before Hon. Wm. H. Parks. The prosecution against’ the appellants was commenced by a complaint made before the judge of the Criminal Court of Pike county, charging them with having committed a trespass after warning upon the property of one Dennis Ramsey.

Tried before tbe Hon. William P. Chitwood. The 5th, 6th and 9th grounds of the defendant’s motion to quash the venire are as follows : 5th. After said box was prepared, as aforesaid, said Commissioners proceeded to draw therefrom a sufficient number of names to constitute both the grand and petit juries, and after the names were so drawn the said Commissioners then selected those to serve as grand jurors and left the remainder to serve as petit jurors. 6th.

<p>Appeal from the Circuit Court of Madison.</p> <p>Tried before the Hon. Henry C. Speake.</p>

Tried before the Hon. James T. Jones. The appellant was indicted, tried and convicted for the larceny of a hog.

From the Circuit Court of Covington. Tried before tbe Hon. John B. Tyson.

From the Circuit Court of Butler. Tried before the Honorable John R. Tyson. The defendant was tried under an indictment charging him with carrying a pistol concealed about his person; the State examined a witness who testified that he was a member of the grand jury for Butler county, and that during the session of the court he met the defendant in the hallway of the courthouse and shook hands with him.

<p>Appeal from the Circuit Court of Butler.</p> <p>Tried before the Hon. John R. Tyson.</p>

<p> Indictment for an Assault with Intent to Murder. </p> <p>1. Section 4502 of the, Code; confession of judgment as affecting costs.— Upon a confession of judgment by the defendant and his sureties, under § 4502 of the Code for the fine and costs, it is, not error for the court to refuse to enter an order on the docket at the defendant’s request to limit the confession as to the costs to such as had been incurred oh behalf of the State; the judgment entry without such express limitation would include only the costs of the state, and any taxation by the clerk of the costs of defendant would be illegal.</p> <p>2. Argument of counsel; power of court to limit —The constitutional guaranty “that in all criminal prosecutions the accused has the right to be heard by himself and counsel, or either,” is not inconsistent with the existence of power in the court to regulate the exercise of the right of argument by reasonable rules and regulations, which, while preventing the abuse of the privilege of counsel in this regard, do not deprive them of reasonable opportunity to make defense for their clients.</p> <p>3. Same.—In a case where the witnesses are few, and several are examined alone as to the character of the defendant and the party assaulted, and the facts and the principles of law are plain the restriction of counsel to twenty-five minutes for argument-by the trial court is not an improper exercise of its discretion.</p>

<p>Appeal from the Circuit Court of Conecuh.</p> <p>Tried before the Hon. John R. Tyson.</p>

<p> Indictment for Slander. </p> <p>1. Slander imputing subordination of perjury.—The words “that Bryant .Mancill had. hired witnesses in the justice of the peace court to swear to lies” charged in an indictment as slanderous, impute the offense of subornation of perjury, which is a felony under §§ 3906-7 Code of 1886, and such defamation, or slander, is an indictable misdemeanor under § 3773 of the Code.</p> <p>2. Slanderous words uttered on belief, information or report.—The utterance of slanderous words on belief or on information or on repoi’t, unless the name of the informant be furnished as part of the utterance, is the legal equivalant of their positive statement as facts.</p> <p>3. Same; variance between charge, in indictment and proof.—When the slanderous words charged in the indictment are “that Bryant Mancill had hired witnesses in the justice of the peace court to swear to lies,” and the slanderous utterance proven, is “He (defendant) was satisfied that he (Mancill) had hired witnesses to swear lies against him,” the variance between the charge in the indictment and the proof is not material.</p>

Tried before the Hon. Thos. M. Arrington. The defendant was indicted and convicted for taking and carrying away with the intent to steal or to hold for a reward a certain hound dog, the property of Silas Tyson, which had been duly registered pursuant to the act of February 12, 1887, entitled “An Act for the protection of dogs.” The third section of said act is as follows: “Sec. 3.

Tried before the Hon. N. I). Denson. The defendant was indicted for perjury and demurred to the indictment. The indictment and demurrer, thereto, are sufficiently set forth in the opinion of the court, and the overruling of the demurrer is the only question reserved for review.

<p> Indictment for Gaming. </p> <p>I. Evidence of Good Character.—In a criminal trial it is competent for the defendant to introduce evidence of his previous good general character, but where he has offered himself as a witness, and no effort is made by the State to impeach him, it is not competent for him to introduce evidence of his good character for truth and veracity, notwithstanding his testimony may be in conflict with that of other witnesses.</p>

From Shelby County Court. Tried, before the Hon. John S. Leeper. The defendant was prosecuted before a jury in the County Court on a charge of “selling, giving away or otherwise disposing of spirituous, vinous or malt liquors, without a license, and contrary to law.” The facts and proceedings sufficiently appear from the opinion of the court except the charges, requested by the defendant and refused by the court, which are as follows: 1.

From the City Court of Montgomery. Tried before the Hon. Thos. M. Arrington. The defendant was indicted for perjury committed in bis examination, before a commissioner appointed under a commission issued in a cause pending in the City Court of Montgomery in equity.

Tried before the Hon. N. D. Denson. The defendants were jointly indicted for arson and on the trial a witness was examined who was, also, under indictment for the same offense with which defendants were charged, and who testified that he saw the defendants set fire to the building they were charged with burning. On the trial the defendants requested the court in writing to give the jury the charge set forth in the opinion of the court.

Tried before the Hon. John B. Tally. The defendant was indicted for murder and on being arraigned pleaded not guilty. The court thereupon set the cause for trial on the 22d day of February, 18'.)3, and ordered that 30 persons be drawn and summoned for the trial in addition to the regular panel.

Tried before the Hon. J. M. Carmichael. The defendant was indicted and tried for larceny from a store-house.

Tried before the Hon. Thos. M. Arrington'. Appellant was tried and convicted, under an indictment which alleged : ‘‘ The grand jury of said county charge, that before the finding of this indictment, Eugene Johnson feloniously took and carried away two bushels of corn, part of an outstanding crop of corn, the property of Cornelia Merriwether,” etc. The evidence introduced on the part of the State, tended to show, that within twelve months before the finding of the indictment,…

From tbe City Court of Montgomery.- Tried before tbe Hon. Thos. M. Arrington. Tbe defendant was indicted for larceny of money from- a ,store-bouse. Tbe building in wbicb tbe larceny was committed'was at the time occupied and used by the firm of Chandler & Jones in carrying on a real estate and insurance business, and by the Standard Building and Loan Association and also by a lumber broker.

' From the City Court of Gadsden. Tried before the Hon. John H. Disque. The “checks” or orders on which the embezzlement was predicated were non-transferable, and as matter of law could not, under the facts in evidence, become the property of Holcombe.— Tablet, Orudup & Go. v. Sheffield Land, Iron and Goal Go., 79 Ala., 380; Ditrr v. The State, 59 Ala., 24.

Petition for writ of habeas corpus for discharge on bail, which had been refused by the Hon. W. W. Morris, Probate Judge of Dale county. The petitioner being confined in jail on a charge of arson made application to the Probate judge of Dale county for his discharge on habeas corpus. The sheriff for answer or return to the writ showed that the petitioner was held in custody under a mittimus regular in form, issued by a justice of the peace.

Tried before the Hou. Samuel H. Spbott. The appellant was indicted, tried and convicted under the following indictment: “The grand jury of said county charges that before the finding of this indictment Matt. Taylor, whose Christian name is to the grand jury otherwise unknown, sold vinous or spirituous or malt liquors, without a license and contrary to law. “The grand jury of said county further charges that before the finding of this indictment Matt.

<p> Indictment for Larceny from the Person. </p> <p>1. Evidence as to character.—Character, whether good or bad, can only be proved by general reputation; evidence of particular acts or conduct is inadmissible, both on the direct and cross-examination, though, in the latter greater latitude is allowed than in the former.</p> <p>.1. Same — Where a witness having testified that he knew the defendant’s general character, and that it was mixed, that some people said it was good and some that it was bad, the solicitor may, on cross-examination, properly ask, if he had ever heard of the defendant stealing meat from the store of B. & EL. as the question did not call for an independent act, but for what witness had heard, having a direct bearing on the value of the testimony of the witness touching reputation and not as proof of conduct.</p> <p>3. Evidence; irrelevant questions .■—A witness may sometimes be asked irrelevant questions to test his accuracy, veracity or credibility, the extent of such course of examination being within the sound discretion of the court.</p> <p>4. Defendant as a witness; impeachment.—A defendant who has offered himself as a witness in his own behalf may be shown by the prosecution to have been convicted of petit larceny by a justice of the peace; such fact, if it exists, being competent as affecting his credibility, but such fact must be proved by the record of the court where the defendarit was convicted and not by oral testimony.</p> <p>5. Same; error without injury.—Where the defendant who has offered himself as a witness in his own behalf is asked by the prosecution an illegal question, and, against his objection, is required to answer it, the action of the trial court will not work a reversal, on appeal, if it affirmatively appears that the defendant was not injured.</p> <p>6. Same; recalling.—When on the trial of a criminal case, and after the defendant has testified in his own behalf, the docket of a justice of the peace is offered as affecting his credibility, to show that the defendant had previously been convicted of petit larceny, itis not error for the court to permit the defendant to be recalled by the State to be examined touching his identity with the person whom the record of the justice of the peace showed to have been convicted.</p>

Tried before tbe Hon. O. J. Semmes. Tbe defendant entered a bouse where a colored girl of eight years of age was, alone, with a baby she was attending for her mother. Defendant took tbe baby from tbe girl, laid it on tbe bed, and then spoke to tbe girl in obscene terms. He then took her by tbe band, led her into tbe woods and after taking off part of her under clothing, laid her on tbe ground and sat near her. He again spoke to her in improper and obscene language.

<p>Appeal from tlie Circuit Court of Jackson.</p> <p>Tried before the Hon. John B. Tally.</p>

Tried before tbe Hon. N. L. Denson. Tbe appellant was indicted and tried for tbe murder of one Henry Mann, and was convicted of murder in tbe second degree, and sentenced to tbe penitentiary for ten years. Tbe evidence as to tbe particulars of tbe difficulty, in wbicb tbe deceased was killed, and bow it arose, was in conflict.

<p> Prosecution for Assault with a Pistol. </p> <p>1. Remarks of counsel.—When the remarks- of counsel to the jury are thought to be out of place and prejudicial to the opposite party the court should be moved to exclude them ; it is not sufficient, in order to have the matter passed on by the Appellate Court, to merely object to the remarks without invoking action on the part of the court; the trial court should be moved to exclude the remarks.</p> <p>2. Witness—inspection of person by jury.—Where on atrial for an assault with a pistol the person alleged to have been assaulted is examined as a witness for the ¡State aud testifies that the defendant shot him through the arm. and the defendant on cross-examination of the witness, requests the court to require the witness to exhibit his arm to the jury, it is error for the court to refuse the request.</p>

Tried before the Hon. J. M. Carmichael. The defendant was tried under an indictment which charges that “Charley Hall, who was then and there an able bodied person and by his labor able to support his family, did abandon his family and leave them in danger of becoming a burden to the public,” &c. The testimony showed that when defendant and his wife were married the latter had two children and that a third child was born three or four months after the marriage, which last…

Tried, before the Hon. John B. Tyson. The defendant was tried and convicted under an indictment for “selling or giving spirituous, vinous or malt liquors to Bill Turner, a man of known intemperate habits, and not upon the prescription of a physician.”' The sale charged in the indictment was admitted by the defendant, but there was conflict in the testimony as to whether the person to whom the sale is alleged to have been made was a person of known intemperate habits—-there…

Tried before tbe Hon. Thos. M. Arrington. Tbe third count of tbe indictment in each of these cases is mutatis mutandis in tbe following words: “ Tbe grand jury of said county further charge that before the finding of this indictment James Brown knowingly, wilfully and without tbe consent of tbe owners entered upon tbe land of Eanny Englebardt and Mattie Englehardt and cut and carried off timber of tbe value of less than twenty-five dollars, against tbe peace and dignity of…

Tried before the Hon. James T. Jones. The appellant was indicted, tried and convicted of grand larceny for stealing a hog. The facts bearing on the only question considered by the court are sufficiently stated in the opinion. After the introduction of all the evidence, the defendant requested the court to give the general affirmative charge in his behalf, and duly excepted to the court’s refusal to give the same.

Tried before the Hon. J. M. Carmichael. The appellant was indicted, tried and convicted of grand larceny for stealing an ox, the property of one Charles L. Phillips. Upon the examination of Charles L. Phillips, it was shown by the State that the said Phillips owned an ox, and that it had not been seen since about the 6th of September, 1892.

From the Probate Court of Butler. Heard before the Hon. Zell Gaston. ■ The petitioner, George Thomas, was arrested by the police force of the city of Greenville, on the charge of larceny from a dwelling, without any affidavit having been made, or warrant issued for his arrest.

Tried the Hon. John S. Deeper. John Dean was convicted of selling intoxicating liquors under an indictment in the following words : “The grand jury of said county, charge that, before the finding of this indictment, John Dean did sell or give spirituous, vinous or malt liquors to Charles Knowles, a minor, without the consent of the parents or guardian or person having control or management of such minor, and without the written prescription of a licensed physician against…

Tried before the Hon. James J. Banks. The defendant was indicted and tried for murder. A motion was made by Mm (but whether made before or after entering on the trial does not appear from the bill of exceptions) to quash the venire, for the trial of the cause on the following grounds, among others : “1.

Appeal'from tbe County Court of Lawrence. Tried before the Hon. J. C. Kumpe.

Application by John Bonner for the writ of habeas corpus to procure his discharge on bail, such writ having been refused him by the Probate Judge of Walker county. The petitioner, John Bonner, being indicted in the Circuit Court of Walker county, for the murder of Andrew J. Higgins, made application to the judge of probate of that county for bail, which being refused, the application is renewed in the Supreme Court.

Tried before Hon. Leeoy E. Box. Samuel Rhea was convicted of murder in the second degree and ajopeals.

Tried before the Hon. John S. Leeper. The appellant was indicted, tried, and convicted under the following indictment: “The grand jury of said county-charge that before the finding of this indictment that Ed. Robinson, alias Ed. Roberson, did sell, give away, or otherwise dispose of spirituous, vinous, or malt liquors, intoxicating bitters, or intoxicating drinks, without a license, and contrary to law, against the peace and dignity of the State of Alabama.” There is only…

Tried before the Hon. John Moore. The defendant was tried under an indictment which charged him with breaking and entering the dwelling house of Lucius Starr with intent to steal. On the trial the testimony showed the legal title to the dwelling house to be in the wife of said Stair at the time of the burglary, and that the house was then actually occupied by the husband and wife.

Tried before the Hon. William H. Simpson. The defendant was prosecuted under section 4052 of the Code for gaming at a public place. The testimony showed that the house at which the gaming was done was a dwelling house located near a saloon and was occupied by negro women. Among other charges requested by the defendant were the following: “2.

Tried before the Hon. James T. Jones. The indictment charges that the defendant “Frank Harris feloniously took and carried away a part of an outstanding crop of corn, to-wit, two ears of corn the property of Arthur Walker, against the peace, etc. To this indictment the defendant filed a demurrer setting forth the following grounds: First, said indictment fails to allege that the part of the crop stolen was the property of Arthur Walker; second, it fails to show what part of…

<p>Appeal from Jefferson Criminal Court.</p> <p>Tried before the Hon. Samuel E. Greene.</p>

Tried, before the Hon. J ohn B. Tally. The defendant admitted on the trial that he had practised dentistry in the county of DeKalb within the period covered by the indictment and offered in evidence a certificate of qualification, or license, for the practice of dentistry issued to him on the 30th day of December, 1879, by the medical Board of Censors for Bibb county, Alabama, which certificate or license was filed for record and recorded in the office of the Judge of…

From the City Court of Montgomery. Tried before the Hon. Thos. M. Arrington. The defendant was tried and convicted under an indictment charging him with carnal knowledge, or abuse in the attempt to carnally know, a girl under ten years of age. Testimony was introduced by the prosecution tending to show the guilt of the defendant, and the defendant introduced testimony in rebuttal, and also offered testimony showing his good character in the neighborhood in which he lived.

Tried before tbe Hon. John Moore. The defendants, William Bandolph and his wife, Penny Bandolph, were indicted and tried, jointly, for the burglary of a store bouse belonging to Francis M. Cobb. The evidence showed that the store was broken into and entered in the latter part of October or early in November 1892, and that goods were stolen therefrom.

Tried before the Hon. W. H. Parks. The defendants were arrested on separate affidavits and warrants charging that the defendant “having no visible means of support, or being dependent on his own labor, living without employment.” and by consent the two eases were tried together.

<p> Indictment for Murder. </p> <p>1. Alibi; charge of court as to proof of.—A charge that “if the defendant has failed to establish his alibi through the perjury or through the want of recollection of his witnesses, it is a circumstance against him” is erroneous.</p> <p>2. Same.—A charge to the jury “that the burden of proof is on the defendant to establish his alibi and that it must be done to your satisfaction.” exacts too high a measure of proof in that it omits the word reasonable; if the evidence to prove the alibi reasonably satisfies the jury it is sufficient.</p> <p>3 Same; effect of as a defense.—The defense of an alibi is as legitimate and effective as any other, and whenever the evidence introduced supports the defense, and its effect is to create a reasonable doubt in the minds of the jury of the defendants guilt he is as much entitled to an acquittal as if the reasonable doubt had been created, or produced by any other legitimate evidence.</p> <p>4. Same ; testimony of, to be considered by jury in connection with all the other evidence.—When testimony is before the jury to prove an alibi it must be considered by them not apart from, but in connection with all the other evidence, and if, after considering the whole evidence, the jury have a reasonable doubt of the defendants guilt arising out of any part of the evidence they should acquit.</p> <p>5. Charge singling out particular fact.—Courts should avoid singling out and unduly emphasizing any one or more facts in their instructions to the jury.</p> <p>6. Same as to probable doubt.—A charge, “if there is a probable doubt of the guilt of the defendant the jury must acquit” is properly refused, inasmuch as it does not require that the jury shall have a doubt in order to acquit, but implies that a probable doubt is sufficient, that is, if there is a probability that there is a doubt arising from the evidence, that is sufficient.</p> <p>7. Same.—A charge “that if there is a probability of the defendants innocence they (the jury) must acquit” is free from error and should be given when requested in writing by the defendant.</p> <p>8. ” Witness—credibility of for the jury.—The court should be careful to refrain from language calculated to convey to the minds of jurors its own impressions as to the credibility of the witnesses examined on the trial of a case before it.</p> <p>9. Evidence—testimony of expert.—A witness who testifies that he was a practising physician for many years, during which he had been called to see a few cases of gun shot wounds but “could not by any means by looking at the wound on the deceased tell whether it was made by a rifle ball or a pistol ball”—cannot give in evidence his opinion that the wound was caused by a rifle ball; it is competent for such witness to describe the character of the wound but not to give an opinion as evidence that a rifle ball caused the wound.</p> <p>10. Objection to evidence.—Where a witness testified that, when he entered defendant’s house soon after the killing, “defendant was perspiring freely, and seemed much excited;” an objection-to the whole of this evidence was too broad, since evidence that defendant was perspiring freely was at least admissible.</p> <p>11. Same.—A question, “Do you know a fact pointing to the guilt of some one else ?” is too general.</p> <p>12. Same.—Evidence that the employer of one of the State’s witnesses is taking an active part in the prosecution is admissible.</p>

<p> Bill in Equity by Surety to Enforce Equitable Set-off. </p> <p>1. Appeal; right of in equity by any party injuriously affected by decree.—Where the court overrules motions to dismiss the bill for want of equity, and to dissolve the temporary injunction granted thereon, any defendant injuriously affected by such decree may appeal therefrom though he may not have been the party who made the motions which were overruled.</p> <p>2. Equitable set-off; right of surety to set-off debt due to insolvent prin'cipal.—Where the principal has a valid claim against the creditor the surety will be allowed in equity to show the principal’s insolvency, and set-oil such claim against the creditor.</p> <p>3. Motion to dismiss bill for want of equity; amendable defects treated as cured.—An averment in a bill which is a mere conclusion cannotbe reached by a motion to dismiss the bill for want of equity, but on such motion the defective averment will be treated as amended.</p> <p>4. Dissolution of temporary injunction.—Where, if the defendants allegations are true, the injunction granted complainant will not harm the defendant, and if complainant’s allegations are true, a dissolution will do him irreparable injury, the injunction will not be dissolved.</p>

Tried before the Hon. H. A. Sharpe. Action by Baird & Levi against Hannah L. Schwartz on account for goods sold and delivered, sued on as a verified account under the statute. The pleas and replications are sufficiently stated in the opinion. The plaintiffs introduced an itemized account against the defendant, showing the amount due the plaintiffs from the defendant equal to the amount set out in the affidavit attached to said itemized account.

Tried before the Hon. M. T. Porter: In the matter of the probate of the will of Samuel Torrey, deceased, Henry W. Torrey contested its probate, and, from a judgment declaring the will invalid, the executors appeal. The proceedings in this case arose out of a contest by the appellee of the probate of a paper filed by the appeliants, purporting to be the last will and testament of Samuel Torrey, deceased.

Tried before tbe Hon. James B. Head. Action by John F. Cook against John E. Cooke for tbe agreed price, of land.

Tried before the Hon. Leroy E. Box. Appellee was applied to by one Thomas Stewart for a loan of money, and agreed to lend the amount, two hundred and fifty dollars, if said Stewart would give his note signed by his father, A. M. Stewart, and appellant.

Tried before the Hon. Jambs B. Head. Action by Vadre Logan, by next friend, against McNamara Bros., for personal injuries, alleged to have been inflicted by reason of defendants’ negligence.

Heard before tbe Hon. S. H MoSpauden. The bill in this case was filed by the common council of the town of Dadeville to compel appellant and others to remove a dwelling house and fence from a public street on the ground that the' same were an ufilawful obstruction or nuisance. The material facts are contained in the opinion of the court.

Tried before the Hon. J. M. Carmichael. J. Pollock & Co., plaintiffs below, appellants here, recovered a judgment against J. B. Tate,… Held: and vest a good title in the purchaser, to the same extent, and with the same limitations on his power of disposition, as would be the case if his debt was not in execution, was not reduced to judgment. Caldivell v. Poliak, supra; Felloivs v. Lewis, 65 Ala. 343-54; Waples on Homestead and Ex., 517; Currier v. Sutherland, 54 N. H. 475.

Tried before the Hon. J. M. Carmichael. Action by Joseph Strauss and others against J. A. Balkum. Certain persons were summoned as garnishees, and defendant filed a bond, whereupon the garnishment proceedings were dismissed. From a judgment against defendant and his sureties on the bond, they appeal.

Tried before the Hon James J. Banks. Action by the State of Alabama, for use of township 16, range 6, in Walker county, against W. J. Jones and others, on promissory notes given for the purchase price of land. The assignments of error in this cause present the rulings of the Circuit Court upon the pleadings.

<p>Appeal from the City Court of Birmingham.</p> <p>Tried before the Hon. H. A. Sharpe.</p>

Tried before the Hon. James W. Lapsley. Two petitions by James G. Adams for writs of mandamus to compel James F. Creen, as justice of the peace of Calhoun county, Ala., to issue a writ, of garnishment in each of two separate actions, wherein said Creen, as such justice, rendered judgment in favor of plaintiff against W. H. Baker. From a judgment in each case denying a writ of mandamus, petitioner appeals.

Tried before the Hon. H. C. Speaks. Action in attachment by J. W. Mayfield against one Lansdale to enforce a statutory lien on a mare, in which H. Spiva interposed a claim to the mare as mortgagee.

Tried before tbe Ron. James J. Banks. Action by C. Eicbofer against tbe Alabama Great Southern Railroad Company to recover for its failure to deliver certain goods in New York. Tbe complaint was in compliance witb form No. 15, p. 793, of tbe Code of 1886. Tbe goods were shipped July 19, 1888, and tbe present suit was commenced November 12, 1891.

Tried before tbe Hon. H. A. Sharpe. This was an action of assumpsit brought by tbe appellee against appellant upon certain coupons of like tenor and effect, of wbicb tbe following is a copy. “On tbe 1st day of September 1891, tbe Kansas City, Memphis & Birmingbam Railroad Company will pay to the bearer in tbe city of Boston, Mass., unless tbis bond be drawn for tbe sinking fund, twenty-five dollars, being six month’s interest on bond No. 916. 916—25 dollars.

Tried before the Hon. James B. Head. This suit was brought under subdivision 5 of § 2590 of the Code. There are two counts, differing in no essential respects except in the allegations of negligence.

Tried before the Hon. J. M. Carmichael. On the trial the defendant pleaded the general issue, and also interposed a motion, which he had entered on the motion docket, to set aside the execution sale and deed made by the sheriff, under which plaintiffs claimed title, on the ground that the property levied on was his homestead, and that after the levy and before the sale thereunder, he filed a verified claim of exemption, which was disregarded by the sheriff.

Tried before the Hon. S. H. Sprott. On the trial the testimony tended to show that in January, 1891, plaintiffs’ agent called upon McKinistry & Co. for the purpose of selling-them a bill of goods; that he sold said bill of goods after offering certain inducements to Mc-Kinstry & Co. to buy; that these goods were shipped about the 25th of February, and were received by the defendants about March 1st; that when the order for these goods was taken by plaintiffs’ agent…

<p>Appeal from the Circuit Court of Fayette.</p> <p>Tried before the Hon. S. H. Sprott.</p>

Tried before Hon. W. M. Wilkerson. ■ Plaintiff obtained a judgment against one A. Goetter for $100 in a justice of the peace court. On this judgment the plaintiff sued out a writ of garnishment, in which the Birmingham Loan & Auction Company, was named as garnishee.

Tried before the Hon. N. H. Denson. Action on the case by Alice Hamilton against the Tennessee Coal, Iron & Railroad Company to recover damages suffered by plaintiff, as a riparian proprietor by reason of the pollution of a stream of water, caused by the washing of iron ore therein by defendant.

Tried before the Hon. James J. Banks. Action by Thomas Jones against the Louisville & Nashville Railroad Company for damages for a breach of duty, growing out of a contract entered into by plaintiff and defendant as a common carrier. There was judgment for plaintiff, and defendant appeals.

Tried before the Hon. S. K. MoSpadden. The bill was filed by appellee against the administrators of the estate of the lessor and his heirs at law for restoration of possession of the leased property, and for an accounting as to rents and the money paid by the lessor on the judgment recovered against him in the ejectment suit.

Tried before tbe Hon. John P. Hubbard. Tbe contract provided that plaintiff should raft timber as fast as it was delivered at tbe mouth of a certain creek; and run tbe same down to Ferry Pass, Fla., as fast as tbe river would permit; and that for this service defendant was to pay plaintiff 30 cents per stick for all tbe timber delivered at Perry Pass, and plaintiff was to pay $3 per stick for all timber lost.

<p> Action of Trover. </p> <p>1. Waiver of tort.—A tort in taking property is waived by the owner, when with knowledge of the facts, he accepts from the wrongdoer a receipt for the proceeds of sale of the property and afterwards claims credit therefor on a debt he owed such wrongdoer.</p> <p>2. Amendment to complaint; misnomer.—In an action begun against the “Singer Sewing Machine Company,” a corporation, it is not error to permit plaintiff to amend the summons and complaint by changing defendant’s name to the “Singer Manufacturing Company,” as this is not a change of party, but a correction of a part of defendant's cotporate name.</p> <p>3. Evidence; province of jury.—In an action for taking property belonging to plaintiff, in a controversy as to the admissibility of a receipt sent by defendant to plaintiff, which defendant claimed was a waiver of the tort, it was error for the court, in the hearing of the jury, to say that he did not attach enough im ortance to the receipt to exclude it, and that defendant could not, by sending it through the mail to plaintiff, an ignorant colored man, release itself from liability, as the weight of the receipt was for the jury.</p>

Tried before Hon. O. J. Semmes. This suit was originally brought in a justice’s court by A. Boullemet against the Southern Express Company, and was to recover $10.70 as overcharges on expressage.

<p> Action of Assumpsit for Money had and Received. </p> <p>1. Payment by check— A justice of -the peace, who accepts a judgment debtor’s check payable to himself personally in payment of the judgment rendered by him, satisfies the judgment on his record, and pays to the successful party the amount due him. cannot, on dishonor of the check, recover of said party the money paid him ; and whether the judgment debtor had money in the bank to pay the check between the times it was made and presented is immaterial.</p>

Tried before tbe Hon. John H. Disque. Appellee sued tbe appellant, Gay, and tbe sureties on bis official bond, as superintendent of education for Etowab county, said bond being payable to the State of Alabama, and conditioned for tbe faithful performance of tbe duties of said office during tbe time be should continue in said office or to discharge any of tbe duties thereof, Tbe breach alleged in the complaint was the failure of said Gay as such superintendent to pay…

<p>Appeal from City Court of Birmingham.</p> <p>Tried before Hon. W. W. "Wilkebson.</p> <p>cited Robertson v. Robertson, 58 Ala. 70; Hovey v. Rubber Tip Pencil Company, 50 N. Y. 335 ; Disbrow v. Garcia, 52 N. Y. 654 ; Neioton v. Russell, 87 N. Y. 527; Cook v. Jackson, 41 N. Y. Eq. 155; High on Inj. Yol. 2, § 1686; Campbell v. Metcalf, 1 Montana, 378; Allport v. Kelly, 2 id. 343; Parker v. Bond, 5 id. 14; 1 Pac. Repr. 209.</p> <p>cited Jackson v. Jackson, 92 Ala. 294; Davis v. Sowell, 77 Ala. 275; Chambers v. Ala. Iron Co., 67 Ala. 359; Bibb v. Shackelford, 38 Ala. 613; Harrison v. Yerby, 87 Ala, 189 ; Whitten v. Dunham, 89 Ala. 497; Bolling v. State, 65 Ala. 426.</p>

Tried before the Hon. J. M. Carmichael. Adams Bros, brought an action of detinue against Thomas E. Altha, and Kennon & Hill, interposed a claim to the property sued for. Upon the claimants giving bond pursuant to the statute the property was delivered to them by the sheriff. On motion of the plaintiff and with the claimants consent, the court dismissed the claim.

Heard before the Hon. Henry A. Sharpe. Bill by tbe State of Alabama against Mack Holmes and others to enjoin defendants from digging, mining or selling coal from certain lands described in the bill, and from cutting timber from or in any way impairing the value of, said lands. On the final submission of the cause a temporary injunction, which had been previously issued, was made perpetual and defendants appealed.

Heard before the Hon. S. K. McSpadden. In the case in which the Excelsior Coal Company is complainant, the bill was filed by it as the grantee, which alleged that it did not know when it bought, nor when it took possession, and when the deed to the land in controversy was made, that its grantor had, before, through fraud or mistake, executed a deed to the defendants.

Tried before the Hon. H. C. Speake. Action by O. H. Bynum, as trustee of Sarab M. Bynum, against the Memphis & Charleston Bailroad… Held: managed, and controlled by him as trustee, according to the terms and provisions of section 2372 of the Bevised Code of Alabama.” This suit of Mrs. Bynum was tried on its merits, judgment rendered for plaintiff, and appeal was taken to this court by the Memphis & Charleston Bailroad Company, and the case was reversed, on the ground…

Heard before the Hon. Thomas Cobbs. The First National Bank of Sheffield, Alabama, organized under the national banking laws of the United States, began doing business at Sheffield, Ala., in the month of January, 1887, and continued in such business until November 29th, 1889, when, being insolvent, it closed its doors and suspended business.

Tried before the Hon. Thos. M. Arrington. The plaintiff and several companions rode on bicycles from Calera to the city of Montgomery on the 20th November 1892, and at 6 p. m. of that day arrived at defendants’ ferry across the Alabama river at the city of Montgomery, plaintiff and his companions being on the bank of the river opposite said city.

Heard before the Hon. W. H. Tayloe. On the 13th of December, 1886, a contract was entered into, between the Bienville Water Supply Company, hereafter referred to as the Water Company, and Bullock & Go., by which the latter undertook to construct for the former, a complete system of waterworks, including the furnishing of engines and pumps, contracting to pay Bullock & Co. for the work to be done, in bonds, and shares of its stock.

Tried before the Hon. Thos. M. Arrington. Appellee, as surviving partner, sued appellants to recover a proportionate share of the costs and expenses incurred by plaintiffs firm in recovering the amounts of several fire insurance policies claimed to have been taken out by plaintiff’s firm for the joint benefit of themselves and appellants. The complaint contained the common counts.

Tried before the Hon. James T. Jones. The plaintiff sued the defendant for the breach of an alleged agreement the.terms of which are set out in the cdmplaint, in substance, as follows: That on or about Eebuary 24th, 1892, the plaintiff and the defendant entered into an agreement to establish and conduct a shooting gallery in a certain building on Boyal street in the city of Mobile, which building was to be furnished by the defendant for that purpose.

Tried before tbe Hon. H. C. Speake. Action by William Bichareis, administrator, against tbe Louisville & Nashville Railroad Company to recover for tbe death of plaintiff’s intestate, caused by defendant’s negligence.

Tried before tbe Hon. James T. Jones. Tbe complaint, as amended, was in the following language : “Tbe plaintiff claims of tbe defendant the sum of fifty thous- and dollars, ($50,000,) for that heretofore, on, to-wit, the 17th day of February, 1892, tbe defendant, being then and there a corporation doing business as a railroad company, did operate a certain train of cars along a railroad track in tbe county of Mobile, State of Alabama, and tbe plaintiff avers that, while be…

Tried before the Hon. William' W-Wllkerson. This was an action brought by Nicholas Sciilaff, as administrator of Peter Schlaff, against the Louisville & Nashville Bailroad Company to recover damages for the killing of plaintiff’s intestate. The complaint contained four counts. The negligence complained of in each of these counts is sufficiently stated in the opinion of the court.

Petition for mandamus, filed by Martha Ann Burton praying to have Hon. John B. Tyson, Circuit Judge, required to re-instate on the docket of the Circuit Court of Montgomery the cause of Martha Ann Burton v. A. C. Parker & Co., which had been stricken from the docket by said court. All the facts are sufficiently stated in the opinion. . cited Act March 1, 1881, Acts 1880-81, p. 268; 5 Amer. & Eng.

Application by James Cameron for tbe writ of habeas corpus after tbe same was refused by tbe probate judge of Tuscaloosa county.

Tried before the Hon. James B. Head. This was an action of ejectment brought by the Elyton Land Company against the South & North Alabama Bail-road Company for a right of way over a strip of land 100 feet in width, in the city of Birmingham. The averments of the complaint are sufficiently stated in the opinion.

Tried before tbe Hon. James J. Banks. Action by 8. Kaufman against Joseph S. Smith and others, the sheriff, and the sureties on his official bond, for trespass in seizing property belonging to plaintiff. The facts are sufficiently stated in the opinion of the court.

Tried before the Hon. Samuel H. Spsott. Action of attachment by Bichardson Bros. & Co.' against J. A. McKinstry, doing business as J. A. McKinstry & Co., in which E. Martin Stringfellow, as assignee for the benefit of creditors of McKinstry, interposed the statutory claim for the attached property, a stock of goods, and issue was formed on such claim. From a judgment entered on the verdict of a jury in favor of claimant, plaintiffs appealed.

Tried before the Hon. James B. Head. This was an action of assumpsit brought by the appellant against the appellee, on the common counts. There was judgment for the defendant and plaintiff appeals. The facts are sufficiently stated in the opinion.

Tried before the Hon. William W. Wilkerson. Tbis was an action brought by the appellant against the appellee to recover damages for the alleged negligent killing, by a train of the defendant, of two mules, the property of the plaintiff. The case was tried without a jury and there was judgment for the defendant. The circumstances of the accident and other necessary facts are sufficiently stated in the opinion.

Tried before the Horn William W. Wilkerson. This was an action brought by the appellant against the appellee on a verified account, for services rendered the solicitor for Jefferson county as clerk. There was judgment for the defendant and plaintiff appeals. Payment for the services alleged to have been rendered to the solicitor is claimed by the act of the General Assembly, approved February 18, 1891.

Tried before the Hon. H. A. Shabpe. This was an action brought by the appellee against the appellant on three several promissory notes, which were given by the defendant for the rent of a certain house, the property of the plaintiff. There was judgment for the plaintiff, and defendant appeals. ' The cause was originally instituted in a court of a justice of the peace, and was commenced by an attachment for rent.

Tried before the Hon. James J. Banks. This was an action of trespass brought by the appellee, Tressa Raplee, against J. C. Burgin and others; and sought to recover damages for the wrongful levy upon, and sale of certain property, alleged to have been the property of the plaintiff. There was judgment for the plaintiff and defendant appeals. The facts of the case, except as to the pleadings, are sufficiently stated in the opinion.

Appeau from the Chancery Court of Jefferson. Heard before tbe Hon. Thomas Cobbs.

Tried before the Hon. William W. Wilkerson. This was an action brought by the appellant against the appellee, and sought to recover damages for personal injuries alleged to have been sustained by reason of the defendant’s negligence. There was judgment for the defendant and plaintiff appeals. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. James J. Banks. The appellee, John G. Herndon, as administrator of the estate of Thomas Page, sued appellant to recover damages for injuries to the said Thomas Page, resulting in his death, which were alleged to have been caused by the negligence of the defendant, the Tennessee, Coal, Iron & Railroad Company. There was judgment for the plaintiff in the sum of $2,450, and the defendant appeals.

Tried before the Hon. H. A. Sharpe. This was a statutory action of ejectment, brought by the appellant against the appellee; and sought to recover the possession of certain lands specifically described in the complaint. There was judgment for the defendant, and plaintiff appeals. The facts of the case are sufficiently stated in the opinion.

Heard before the Hon. John A. Foster. The bill in this case was filed by the Home Building & Loan Association against Moses Bros., J. R. Adams, W. R. Nalls, and certain judgment creditors of said W. R. Nalls; and prayed to have foreclosed two mortgages. The two mortgages which were sought to be foreclosed by the plaintiffs, were executed by Nalls, one on January 9,1885, and the other on J une 6, 1888.

Tried before tbe Hon. James B. Head. Appellee, B. M. Allen, sued tbe First National Bank of Birmingham, to recover a certain sum of money, wbicb plaintiff claimed* be bad deposited in tbe said bank, and wbicb be alleged tbe bank bad paid out on forged checks. Tbe complaint contained three counts. Tbe first claimed $500 due by account; the second, $500, due by stated account ; and tbe third claimed $500, as money deposited with tbe defendant by plaintiff payable to bis order.

Tried before the Hon. H. A. Sharpe. This was an action brought by the appellee against the appellant; and sought to recover damages for personal injuries sustained by the plaintiff, by being knocked from the trestle on the defendant’s road; which injuries, as alleged in the complaint, were caused by the wanton and reckless negligence of the defendant. All the facts are sufficiently stated in the opinion. There was judgment for the plaintiff, and defendant appeals.

Tried before the Hon. H. A. Sharpe. This was an action'brought by the appellant against the appellee to recover damages for permanent, injuries to the plaintiff, who was a passenger waiting for the train on the defendant’s road, at a regular stopping place, when the injury was inflicted. There was judgment for the defendant, and plaintiff appeals.

Heard before the Hon. John A. Poster. The bill in this case was filed by the appellant against the appellee; and prayed to have cancelled as a cloud upon his title a certain mortgage which had been executed by the complainant to the defendant, to the land described in the bill, to secure a loan of $4,000.00 made to the complainant.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the appellants against the appellees, and prayed for the sale of certain described land for partition. On the final hearing of the cause, on the pleadings and proof, the chancellor decreed that the bill be dismissed at the cost of the complainants. Complainants now bring this appeal, and assign this decree of the chancellor as error.

Tried before the Hon. John P. Hubbard. This was an action brought by the appellants, Winter & Loeb, a partnership doing business in the city of Montgomery, against the appellee, James A. Pool; and counted on a promissory note. There was judgment for the defendant, and plaintiff appeals. The defendant pleaded twn est factum, and his plea was duly sworn to.

Tried before the Hon. John B. Tyson. This action was brought by the appellant, J. C. McLaren, against the Alabama Midland Bailway Company; and sought to recover damages for personal injuries, which were alleged to have been inflicted by reason of the defendant’s negligence. There was judgment for the defendant, and plaintiff appeals.

Tried before the Hon. J. M. Carmichael. This was an action of trespass brought by the appellee against the appellants, the Ala. Midland Bailway Co. and J. M. Brown & Co., and was commenced on tire 16th day of June, 1890. There was judgment for the plaintiff, and defendant appeals.

<p>Appeal from the Circuit Court of Butler.</p> <p>Tried before the Hon. John P. Hubbard.</p>

Tried before the Hon. John P. Hubbard. This was an action brought by S. M. Mitchell against Noble and Ware, to recover the amount of an insurance policy held by the plaintiff. The cause of action was based on sections i.205 and 1206 of the Code of 1886. There was judgment for the plaintiff, and defendants appeal.

Tried.before the Hon. John P. Hubbard. This was an action brought by J. C. Perdue, as the administrator of W. S. Perdue, against the Louisville & Nashville Railroad Co. and sought to recover damages for the alleged negligent killing of the plaintiff s intestate. There was judgment for the defendant, and plaintiff appeals.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by J. W. Jones and others, against E. J. Hagler; and prayed to have the defendant enjoined from the further prosecution of an action of ejectment brought by him against the complainants in a court of law. Upon the execution of the bond, the chancellor ordered a temporary injunction. The respondent filed his answer denying the material allegations of the bill, and moved to dissolve the injunction.

Tried before the Hon. Thomas M. Arrington. This was an action of trover brought by M. W. Barkhouse, against the Louisville & Nashville Railroad Company, and Chandler Bros.; and sought to recover damages for the wrongful conversion of certain property described in the complaint. There was judgment for the plaintiff against the Louisville & Nashville Railroad Company, and the appeal is taken by it.

Tried before the Hon. S. H. Sprott. This was an action of assumpsit brought by McCary & Dean against T. A. Davis; and counted on a promissory note. There was judgment for plaintiffs and defendant appeals. Affirmed.

Tried before Hon. Thomas M. Arrington. Tlie appeal in this case is prosecuted by David Lindsay, the plaintiff in the lower court, from a judgment rendered, granting a motion of the garnishee to strike from the file the tenders of issue made by the plaintiff. The facts sufficiently appear in the opinion of the court.

<p>Appeal from the Circuit Court of Madison.</p> <p>Tried before the Hon. H. C. Speake.</p>

Tried before the Hon. H. A. Sharpe. This was a suit brought by Willis McAdory and wife against W. B. Copeland and wife to recover damages for the alleged breach of warranties in a deed from the defendants to plaintiffs. There was verdict and judgment for the plaintiffs against W. B. Copeland. The plaintiffs confessed the plea of coverture as to the defendant, Mrs. Copeland.

Heard before Hon. John A. Foster. The bill in this case was filed by Janney & Cheney, as trustees of the Moses Bros, estate (under a deed of assignment) against I. Poliak and others. The appeal is prosecuted from a decree overruling the demurrers interposed by the defendants and their motion to dismiss the bill for want of equity. All the facts are sufficiently stated in the opinion.

Heard before the Hon. John A. Foster. Bill by M. M. Tyson against J. C. Chestnut for injunction and reformation of a contract of leasing. The bill was dismissed and complainant appeals.

The proceeding in this case was commenced by an application addressed to this court asking for a writ of mandamus, directed to the chancellor, commanding him to set aside, vacate and annul a former order of his court allowing an amendment to their answer by the respondents, and to set aside the submission of the cause, and allow further testimony to be introduced by said respondent.

Heard before the Hon. Thomas M. Arrington. Bill by the New York Condensed Milk Company and others against George W. Cook for a discovery.

Heard before the Hon. J. N. Williams. The bill in this case was filed by the appellees, who were simple contract creditors, against Geo. W. Cook; and prayed for a discovery and injunction. The allegations and grounds of relief are substantially the same as those contained in the case of Geo. W. Cook v. New York Condensed Milk Go., ante page 580; the cause was submitted on similar motions and similar demurrers.

Heard before tbe Hon. John A. .Foster. The bill in this case was filed by J. C. Richardson, as the executor of J. T. Ferry, deceased, against the persons to whom the said J. T. Ferry, by his last will, bequeathed his personal property and devised his realty; and prayed that the administration of said estate be removed into the Chancery Court; that the will be construed, and that the executor be directed as to his administration of the said last will and testament.

Tried before the Hon. Henry C. Speake. Petition by Reuben F. Kolb for a writ of mandamus to Thomas J. Taylor and others. The writ was granted, and respondents appeal. Before the writ of mandamus can issue, it must appear to the satisfaction of the Court, ■ that the legal remedy clearly exists, and that the petitioner has no other remedy at law. 49 Ala. p. 471. The duties prescribed by section 352 of the Code are partly ministerial and partly judicial.

Heard before Hon. William H. Simpson. The bill in this case was filed by Catherine E. Broadfoot against John Paige and his wife, and sought to enforce a vendor’s lien on certain property. The appeal is prosecuted from a decree of the chancellor overruling certain demurrers interposed by the defendants. The description of the property upon which the lien is sought to be fastened is sufficiently stated in the opinion.

<p> Bill in Equity to Enforce Parol Trust in Land. </p> <p>1. Jurisdiction of equity to enforce parol trust in lands; statute oj frauds.—Where one person advances money to another by way of a loan, through a payment to a third person, for land which the borrower has purchased or is purchasing, and, to secure the loan, the lender takes the title of the land to himself with the agreement and understanding between him and the real purchaser that he will re-convey to the latter on repayment of the money advanced, equity will declare the holder of the title a trustee thereof for the purchaser, and compel him to discharge the trust, by the reconveyance stipulated for, upon the repayment to him of the money to secure which the title was vested in him, notwithstanding the contract which they have made to that end rests entirely in parol.</p> <p>2. Demurrer to amended bill.—A demurrer will not lie to the amendment of a bill, but only to the bill as amended—the amendment need not, independently of the original bill, show title to relief, but must be considered in connection with the facts set forth in the original bill.</p> <p>3. Tender; offer to do equity.—A bill to enforce conveyance from one who has taken title to land as security for money advanced for the final payment of the purchase-money, is in the nature of a bill to redeem from a mortgage, and need not allege tender before the filing-of the bill but merely a readiness and willingness to pay whatever may be necessary to be paid as a condition to relief.</p>

<p>Appeal from the Circuit Court of Montgomery.</p> <p>Tried before the Hon. John P. Hubbard.</p>

Tried before the Hon. H. A. Sharpe. This was an action brought by Matthew F. Maddox against the Highland Avenue & Belt Bailroad Company, to recover damages for injuries to his horse and wagon, by a collision with the dummy engine on the line of defendant’s road, alleged to have been caused by the negligence of the servants of the defendant. There was judgment for plaintiff and defendant appeals.

Tried before the Hon. S. H. Sprott. This was an action of assumpsit brought by C. C. Baker against W. P. Boon on a promissory note. There was judgment for defendant and plaintiff appeals. The special pleas filed by the defendant and the replications thereto, as well as the demurrers, are sufficiently stated in the opinion.

Heard before the Hon. John A. Foster. The bill in this case was filed by the appellees against the appellants; and prayed to have certain property which had been conveyed to the defendants decreed to be held by them in trust, and an account to be taken. There was a decree of the chancellor overruling the demurrer of the defendants from which the present appeal is prosecuted.

Tried before Hon.' James B. Head. This was an action of detinue brought by Bob Davis against P. McCrossin to recover a mule. On the trial of the cause, as is shown by the bill of exceptions, the plaintiff testified that the mule which was taken from him on January 13, 1891, and delivered to McCrossin in Birmingham, was the mule he had traded for with one King.

Tried before the Hon. John R. Tyson. At the August election 1892, appellees and appellants were candidates for the following offices, to-wit., W. J. Hilliard and T. H. Brown were candidates and voted for, for the office of judge of probate of Pike county, Alabama; W. H. Parks and A. H. Owens were candidates and voted for, for judge of the Criminal Court of Pike county, Alabama; O. Worthy and Lucius Reeves were candidates and voted for, for the office of clerk of the Circuit…

Heard before the Hon. T. M. Arrington. The purpose of the bill and the facts as disclosed in the transcript are sufficiently stated in the opinion. Upon the cause being submitted for decree on demurrer and motion to dismiss the bill for want of equity, and a motion to dissolve the injunction, previously granted, for the want of equity, the chancellor found that there was no equity in the bill and decreed that the injunction be “dissolved and the bill dismissed.

Tried before the Hon. James B. Head. This was an action brought by W. H. Wood against the R. & D. R. R. Co to recover damages for personal injuries alleged to have been suffered by reason of the defendant’s negligence. There was judgment for the defendant, and plaintiff appeals. There was no substantial conflict in the evidence in this cause, and the facts are sufficiently shown in the opinion.

Tried before the Hon. James B. Head. Action by A.'F. Parsons against the Birmingham Mineral Bailroad Company to recover for damage to plaintiff’s crops, caused by the failure of defendant to erect and maintain proper cattle guards on its road, where it entered plaintiff’s land. The complaint, as amended, contained three counts.

Heard before the Hon. S. K. MoSpadden. The bill in this case was filed by John S. Jackson, against Jefferson B. Elliott, and prayed to have the defendant enjoined from the collection of a judgment against the complainant. This appeal is taken by the complainant from the decree dissolving the temporary injunction.