Volume 102 — Alabama Reports

Tried before the Hon. Samuel E. Greene. The appellant was indicted and tried for the murder of John W. Kimbro, was convicted of murder in the second degree, and sentenced to the penitentiary for 25-years. The facts pertaining to the ruling of the trial court upon the motion to quash the venue of the petit jurors, which had been drawn and summoned for the week during which the defendant was placed upon trial, are sufficiently stated in the opinion.

This was an impeachment proceeding against John B. Tally, Judge of the Ninth Judicial Circuit of Alabama, and was commenced in the Supreme Court by an information filed on the part of the State by William L. Martin, as Attorney-General, founded upon a report of the grand jury of Jackson county. The facts of the case are sufficiently stated in the opinion. All the evidence as to any relations between R. C. Ross and Annie Skelton should be excluded from consideration.

<p> Indictment for Assault with Intent to Murder. </p> <p>1. Place for holding court; a verdict void if received elsewhere. — Under the statute, (Code, § 749), which provides that “the circuit courts in the several counties shall he held at the court-houses thereof,” a verdict of the jury must he delivered at the court-house; and if a verdict is received by the judge of the circuit court at his hotel, although in the presence of the defendant, it is void.</p> <p>2. Separation of jurors after a void verdict; discharge of accused.— Where the j ury separates after the rendition of a verdict which is void, because delivered to the judge outside of the court-house, the accused, having been once placed in jeopardy, is entitled to be discharged.</p>

Apiusal from the City Court of Decatur. Tried before the Hon. W. H. Simpson. The appellant in this case was indicted and tried for the murder of John A. Herndon, and was convicted of murder in the second degree, and sentenced to the penitentiary for twenty years.

Tried*before the Hon. O. J. Semmes. The appellant was indicted and tried for the murder of John Poole, and was convicted of murder in the first degree, and sentenced to be hanged. The evidence in reference to the rulings of the court upon the motion to quash the venire is sufficiently stated iuthe opinion.

' Tried before the Hon. Thos. M. AebjNgtoN. The appellant was indicted, tried and convicted of murder, and sentenced to be hanged.

Tried before the Hon. 0. J. Semmes . The appellant was indicted and tried for the murder of his wife, Catherine McNeill, and was convicted of murder in the first degree, and sentenced to be hanged.

Tried before the Hon Thos. M. AbkiNGtoN. The appellant was indicted and tried for murder, was convicted of manslaughter in the first degree, and sentenced to imprisonment in the penitentiary for ten years. The only questions which are considered on this appeal arise upon exceptions reserved to the rulings of the court in the drawing of the special venire for the trial of the defendant.

Tried before the Hon. John B. Tally. The appellant in this case was indicted and tried for an assault with intent to forcibly ravish Martha E. Class-cock ; and was convicted of a simple assault, and fined $25.

Tried before the Hon. J. W. Mabky , The appellant was indicted and tried for the murder of¥m.L. Emmerson, and was convicted of murder in the first degree, and sentenced to the penitentiary for life. The facts of the case referring to the exceptions reserved by the defendant to the action of the court in excusing one of the jurors is sufficiently stated in the opinion.

Tried before the Hon. James T. Jones. The appellant was indicted and tried for an assault with intent to murder Isaac Rosenberg, and convicted of an assault and battery.

Tried before the Hon. H. C. Speake . The appellant in this case, George McCormack, was indicted and tried for an assault with intent to murder one H. F. Moore; was convicted of an assault with a knife, and fined twenty-five dollars.

Tried before the Hon. John R. Tyson. The appellants, Bailey Browder and Brit Linton, were indicted, tried and convicted for the larceny of a hog. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. James T. Jones. The appellant in this case was indicted, tried and convicted for burglary, and sentenced to the penitentiary for five years. The indictment contained two counts. In the first the ownership of the dwelling house, alleged to have been burglarized was laid in Mary J. Martin.

Tried before the Hon. John S. Leeper. The case was tried by and before the judge of the county court, without the .intervention of a jury, on a charge against the defendant, for a violation of section 4078 of the Code as amended February 18th, 1891, (Acts 1890-91, p. 857) , which reads as follows ; “Anyperson practicing medicine or surgery in this State, without having first obtained a certificate of qualification from one of the authorized boards of medical examiners oi…

Aureal from tlie Probate Court of Pike. Heard before tlie Hon. W. J. Hilliard. The facts of the case are sufficiently stated in the opinion. The power “to license and regulate” does, not carry the power to tax ; nor the power to prohibit by fixing the price of licenses so as to be prohibitory. — Cooley Const. Lim. (6th. Ed.), 242; Dunham, v. Trustees, 5 Cowen 462; Miller v. Jones, 80 Ala. 96 ; Intendant of Marion v. Chandler, 6 Ala. 901; Ex parte Burnett, 30 Ala. 469.

James'Brown filed a petition, addressed to tbe judges of tbe supreme court, asking for a writ of habeas corpus, and that the petitioner be discharged from the custody; of the penitentiary authorities. The facts of the case are sufficiently stated- in the opinion.

Heard before the Hon. T. M. Arrington: The petitioner in this case was arrestéd under the act “For the protection of landlords, proprietors and keepers of hotels and boarding-houses,” as found.on page 1089,-of Acts 1892-93; and on default of bail was remanded to j ail. Thereupon he sued out a writ of habeas corpus before the judge of the city court, seeking his discharge. The facts as disclosed on the hearing of the cause are sufficiently stated in the opinion.

' Heard before the Hon. S. K. McSpadden. The bill in this case was filed in January, 1893, by the appellant against the appellees; and prayed an injunction restraining the maintenance of certain suits brought by the defendant, Winchester, against the complainant ; and also for an accounting between the complainant and the defendants.

Tried before the Hon. James J. Banks. This was an action on the case, brought by the appellants against the appellee, to recover damages for loss of, and injury to, a lot of terra cotta tiling shipped from Ottawa, Illinois, over the Chicago, Burlington & Quincy Railroad, and by that railroad delivered to the defendant, and by the defendant carried to Birmingham, Ala., and delivered in bad condition. • To the complaint, the defendant pleaded the general issue, and the…

Tried before the Pión. John H. Disque. This is an appeal from a judgment of the city court dissolving a writ of garnishment. On April 2, 1891, the First National Bank of Gadsden recovered a judgment in the circuit court of Etowah county against F. C. Dunn and J. G. Thompson. On January 13, 1893, the said plaintiffs sued out' a garnishment in the 'city court of Gadsden upon said judgment obtained in the circuit court, and garnished the First National Bank of Birmingham.

Heard before the Hon. S. K. McSradden. This was a bill for discovery, filed by the appellees against the appellants. There were demurrers interposed by the defendants to the bill, which were overruléd. The facts are sufficiently stated in the opinion. The defendants appeal, and assign the decretal order of the chancellor in overruling the demurrers as error.

Tried before the Hon. Jambs J. Banks. This action was brought by the appellee against the appellant railroad company, as a common carrier, to recover damages for the alleged failure to deliver certain property to the plaintiff, which was received by the defendant as a common carrier to be delivered to the plaintiff. The transcript, on this appeal, contains no bill of exceptions ; and the only questions reviewed are shown in the opinion.

Heard before the Hon. John A. Foster,. The bill in this case was filed on April 3, 1890, by the appellee, M. M. Berringer, against the appellant, B.' Scheuer, to correct certain mistakes, alleged to have occurred in a partnership settlement between the complainant and the respondent. The material facts' of the case are sufficiently stated in the opinion.

Tried before the Hon. John B. Tally. This was a statutory action in the nature of ejectment,, brought by the appellee, J.C. Taylor, against the Tennessee & Coosa Railroad Co., and was commenced on December 9, 1890. The facts of the case are sufficiently stated in the opinion. A railroad is a public highway within the meaning of soction 2477 of the Revised Statutes of the United States.

Tried before the Hon. John H. Disque. This was an action brought by the appellee against the appellant, as administrator of Louisa Garrett, deceased, to recover for services rendered to the defendant’s intestate ; and -was commenced February 23, 1892.

Heard before the non. Tiros. M. Arrington. Held: and never seriously questioned, that willful misuse, neglect, abuse or non-use of its franchises by a corporation, or failure to discharge the obligations imposed on it, either expressly or by implication, in its charter, constitute ground for the forfeiture thereof. — High Extr. Legal Rem., § 606 ; People v. North River Sugar Ref.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the Alabama Great Southern Railroad Company against the South & North Alabama Railroad Company,, to enjoin the respondent from prosecuting to judgment an action of ejectment brought against the complainant for a certain thirty feet strip of land lying in the city of Birmingham. The facts averred in the bill are sufficiently stated in the opinion.

Heard before the Hon. Jere N. Williams. The bill in this case was filed by the appellant against the appellees; and prayed to have a mortgage executed by the defendants to the complainant foreclosed. The mortgage sought to be foreclosed by the bill was one executed by John W. Peoples and his wife, Martha A. Peoples, and was given to secure the payment of money loaned by the complainant to the said John W. Peoples.

Heard before thePIon. Wjvl. B. Bridges. The proceeding in this case was commenced by a petition filed by the appellee, Rebecca Hendren, addressed to the judge of probate of Jackson county, asking that a dower interest be allotted to the petitioner in certain described lands.

Tried before the Hon. J. M. Carmichael. Bates, Kingsberry & Co. sued out an attachment on a stock of goods, which had been formerly owned by one J. B. Grant. The attachment was based on an affidavit, alleging that the said Grant was about to fraudulently dispose of his goods. The ground of the plaintiffs’ claim was three promissory notes executed to them by said Grant.

Tried before the Hon. J. M. Carmichael. This was a statutory real action in the nature of ejectment, brought by the appellee against the appellants, to recover the possession of certain described lands. The action was originally commenced against E.’R. Beasley as the sole defendant, but, by request, V. Holman was made a party defendant. Issue was joined on the plea of the general issue.

Heard before tlie Hon. John W-. Bishop. The appeal in this case is taken from a decree of the city court, sustaining a certain demurrer interposed to a bill filed by appellant, the Talladega Mercantile Company, against the appellees.

. Heard before the Hon. Thomas Cobbs. Tho bill in this case was filed by the appellant, Mrs. Caroline Ashford, against the defendants ; and prayed to have enjoined several statutory real actions in the nature of ejectment for the recovery of the possession of certain lands; and also prayed for a decree declaring that the complainant was clothed with a paramount equity, which dominated the title of Mrs. Prewitt, and those claiming under her.

Heard before the Hon. John A. Foster,. The bill in this case was filed on May 16, 1889, by the appellee, A. J. Stanford against the appellants ; and, as amended, prayed for the establishment of a resulting trust in certain described lands. The respondents moved the court to strike out the amendment, also demurred to the bill as amended on the ground, that the amendment was an entire departure from the original bill. All the other facts are sufficiently stated in the opinion.

Tried before the Hon. H. A. Si-iabpe. A. W. Smith, Fred Sloss and Maclin Sloss, as executors of J. W. Sloss, deceased, brought an action against the Mutual Loan & Trust Co. and the sureties on an injunction bond, issued at its instance, to recover damages resulting from the issuance of the writ of injunction, which was afterwards dissolved as to the plaintiffs.

Tried before the Hon. John H. Disque. This was an action brought by the appellee against the appellants; and counted on the common counts. The cause was tried without the intervention of a jury, and upon the introduction of all the evidence, the substance of which is sufficiently stated in the opinion, the court rendered judgment for the plaintiff. The defendants now appeal, and assign this judgment as error.

Tried before the Hon. James T. Taylor. This was a statutory real action in the nature of ejectment, brought by the appellant, John DeLoach, against the appellee, T. J. Robbins, to recover certain property specifically described in the complaint.

Tried before the Hon. John R. Tyson. The appeal in this case is prosecuted by the plaintiff in the court below from a judgment of the circuit court overruling a motion by the plaintiff for a new trial. The action was brought by J. 0. Clay, as administrator of the estate of Kate Olay, deceased, against the city of Montgomery, to recover damages for the death of the plaintiff’s intestate, which was alleged to have been caused by the negligence of the city.

Tried, before the Hon. J. M. Carmichael. This was an action brought by Rufus Jones, as surviving partner of the late firm of Jones Brothers, against Cherry Green; and counted on an open account for materials furnished-for building a house, and sought thereby to fasten a material-man’s lien on the house and the land on which the house was situated. The facts pertaining to the only questions presented on this appeal are sufficiently stated in the opinion.

Tried before the Hon. John B. Tally. This was a statutory action of ejectment brought by the appellee, James W. Hodges, against John G. Winston, Jr.; and sought to recover specifically described real estate. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. J. M. Carmichael. This was an action of trover, brought by Goetter, Weil & Co. against B. Scheuer & Bro., to recover damages for the alleged conversion of certain goods which are described in the complaint.

Tried before the Hon. J. J. Banks. This suit was commenced before a justice of the peace, in the name of Titche Bros., the appellees, against M. R. & L. M. Simmons, the appellants. The names of the persons composing the plaintiff firm no where appear in the proceedings.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on February 25, 1890, by the appellees against the appellants ; and prayed for a-n injunction restraining the defendants from the prosecution of an ejectment suit against the complainants, and for the reformation of a written agreement entered into between H. W. McVay and the heirs of Hugh McVay, deceased.

Tried, before the Hon. H. C. Speake. This was an action on the case, brought by the appellee, William S. Eyster, against the appellant, Terrence Kelly.

Heard before the Hon. W. P. Ci-iitwood. The bill in this case was filed by the appellee against the appellants ; and prayed to have a mortgage, executed to him by C. S. Wilson & Co., foreclosed. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. W. W. WilkehsoN. This was an action brought by J. W. Kelly against J. B. Smith; and sought to recover an amount due on a verified account. The action was commenced by attachment, which was levied on a portion of a stock of goods, which was supposed to belong to J. B\ Smith. Upon the levy of this attachment the appellee, Louis Schillinger, made an affidavit claiming the goods, and executed a claim bond therefor.

Tried before the Hon. Jambs J. BANKS. The appeal in this case is prosecuted by J. L. Brake from a j udgment rendered against him as garnishee in a suit brought by the appellee, the Curd Sin ton Manufacturing Co., against R. D. Jones on a moneyed demand. The facts of the case are sufficiently stated in the opinion. 1. If the answer of the garnishee is in writing and is identified by the judgment entry, it will be considered part of the record. — Jones v. Howell, 16 Ala. 695.

Heard before the Hon. JohN A. Foster. The bill in this case was 'filed by the appellee, C. B. Campbell, against the appellant, J. B. Harper; and prayed to have enforced a vendor’s lien on certain lands described in the bill of complaint, for the payment of the purchase money thereof.

Heard before the Hon. W. H. SimpsoN. The bill in this case was filed by the appellee against the appellant to foreclose a mortgage, executed by the respondent, to secure the payment of the purchase money agreed to be paid by her for lots 5 and 6 in block 26 of complainant’s addition number 4 to Decatur.

<p>Appeal from the Chancery Court of Mobile.</p> <p>Heard before the Hon. W. H. Tayloe.</p> <p>The facts of the case are sufficiently stated in the opinion.</p> <p>cited Downey v. Downey, 98 Ala. 373, 13 So Rep. 412.</p>

Tried before the Hon. H. A. Sharpe. . This was an action brought by the appellee against the appellant; and counted on certain interest coupons. There was judgment for plaintiff and defendant appeals. The only ruling, which, is considered by this court, and which is not involved in the case of Kansas City. Memphis & Birmingham R. II. Co. v. Cobb, 100 Ala. 228-, arose as follows: The complaint as originally filed, simply claimed an amount due upon interest-coupons.

■ Appeal from the City Court of Birmingham. Tried before the Hon. H. A. Sharpe. This action was brought by the appellant, J. S. Old-ham, against the Mayor and Aldermen of Birmingham to i;eeover an amount alleged to be due him as his salary as sergeant of police of the said city. The facts of the case are sufficiently stated in the opinion.

Heard before the Hon. Jere N. Williams. The Eufaula National Bank sued out an attachment against Brooks Bros., a mercantile partnership, and the same was levied on their stock of goods.

Tried before tbe Hon. Thos. M. Arrington. The proceedings in this case were had upon a contest of exemptions, in which the appellee, Hubbard, claimed as exempt to him certain funds which the answer of the garnishee, the Louisville & Nashville Railroad Company, disclosed to be in its hands, and to belong to the said Hubbard. Randolph Young recoverd a judgment against Jos.

Heard, before the Hon. Jere N. Williams. The bill in this case was filed by the appellant, John Craft against G. W: Wilcox & Co., and others, and seeks to have set aside as fraudulent and void certain conveyances of property which formerly belonged to G. W. Wilcox & Co., and to subject said property to the payment of a judgment recovered by the complainant against Wilcox & Co. The facts averred in the bill are sufficiently stated in the opinion.

Tried before the Hon. John P. Hubbard. This was an action of assumpsit; brought by the appellee, E. G. Chaffin, against the appellant, Y. D. Jones, to recover warehouse charges for storage of cotton, and was originally commenced in a justice of the peace court. The facts of the case are sufficiently stated in the opinion. There was judgment for the plaintiff, and defendant appeals.

Tried before the Hon. J. M. Carmichael. This was a statutory real action in the nature of ej ectment, brought by the appellee, Mary A. Crawford, against L. W. Payne; and sought to recover two strips of land lying between their several possessions. The substance of the pleas is sufficiently stated in the opinion, as are also the four replications to the first plea, which are considered by the court.

Tried before the Hon. James J. Banks-. This was an action of trespass brought by the appellee, Nicholas Bennett, against the appellant, M. M. Boggan, to recover damages for the alleged wrongful and forcible entry of. the dwelling house of the plaintiff, by defendant, and carrying away therefrom certain articles of wearing apparel, household furniture, &c., and for using rough and abusive language in the presence of his family. The complaint claimed $1,000 damages.

Tried before the PTon. W. W. Wilkerson. This was an action brought by the appellee, as administratrix of the estate of Daniel Butler, deceased, against •George Lunsford ; an d was commenced on September 2, 1892.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the appellant, Wm. L. Smith, against the appellee, Russell Allen, and prayed to have reformed and corrected a deed to certain lands, which the complainant had exocuted to the defendant in exchange for other certain lands. The complainant exchanged, by mutual conveyances, certain lands with the respondent. His deed thereto contained warranties of title.

Tried before.the Hon. John R. Tyson. The plaintiffs, Gerson & Sons, brought this suit before a justice of the peace against the Louisville & Nashville R. R. Co., to recover for negligent injury of an animal.

Heard before the Hon. W. P. Chitwood. The bill in this case was filed by the appellee against .the appellants ; and sought to enforce a vendor’s lien on certain lands, which had been sold by the complainant ' to one of the respondents. The averments of the bill show that on June 11, 1890, Pat Hastings, the complainant in this case, and his wife, conveyed to Alfred Parrish a certain tract of land to be used as a right-of-way for a railroad.

Tried before the Hon. H. A. Sharpe. The-facts of the case are sufficiently stated in the opinion. The deed of assignment being valid upon its face, the onus of showing its invalidity is upon those who assail it. — .Bank v. Floiver, 41 Ohio St. 552; 26 Ohio St. 426.

Heard before the Hon. S. K. McSpakdbn. The bill is filed by the complainants, appellees here, ■as creditors of 14. G. Williams, to set aside as fraudulent conveyances made by him to his children, and a mortgage made by him to one Montgomery, which is alleged to have also been fraudulently made.

Heard before the Hon. Jere N. Williams. On July 6, 1891, the firm of Moses Bros., composed of H. C., A. H. and M. L. Moses, made a general assignment to certain named trustees of all their property, for the benefit of their creditors.

Heard before the Hon. Jere N. Williams. The bill in this case was filed by the appellant, as administrator de bonis non of Lucy B. Micou, deceased ; and sought to fasten a lien, in the nature of a vendor’s lien, on certain property held by the defendants, Janney & Cheney, as trustees of the late firm of Moses Brothers. H. C. Semple held the legal title to certain property. He had no personal interest in it whatever, beyond his charges as trustee.

Heard before the Hon.. Thomas Cobbs, The bill in this case was filed by William R. Moore, as administrator of Ella M. Donegan, deceased, against k. Campbell, individually, and as executor of the last will and testament of Mary P. Rice.

Heard before the Hon. Jjcre N. Williams. The bill in this case was filed by the appellees against the appellants ; and prayed to have enjoined the sale of a stock of goods, which had been levied upon under attachments issued at the instance of the defendants. The bill is in the nature of a general creditor’s bill, and a large number of creditors of D. G. May are made parties complainant.

Tried before the Hon. Thos. M. Arrington. This was an action of libel; brought by the appellant against the appellee ; and sought to recover damages for the publication of wliat was alleged to be libellous matter. All of the facts are sufficiently stated in the opinion. cited Stallings v. Newman, 26 Ala. 300; Henderson v. Hale, 19 Ala. 154; Trimble v. Anderson, 79 Ala. 514; Iron Age Pub. Go. v. Crudup, 85 Ala. 519 ; Adams v. Lawson, 94 Amer.

Heard before the Hon. John A. Foster. The bill in this case was filed by the appellants against the appellees; and prayed to be subrogated to all of the rights of the assignee of one Alford, from whom they had rented certain lands. The facts of the case are sufficiently stated in the opinion.

’Appeal from the City Court of Birmingham. Tried before the Hon. H. A. Sharpe. This action was brought by the appellee against the appellant, to recover $550 alleged to be due by defendant as indorser on a note, which had been executed to the plaintiff by one J. K. Bayliss and wife. The defendant pleaded the general issue, and several special pleas.

Heard before the Hon. H. C. Speakb. The'appeal in this case is taken from a judgment of the circuit court in dismissing a writ of certiorari.

Tried before the Hon. H. C. Speake. This action was brought by the appellant, Andrew J. Drake, as the executor of J. M. Kirk, deceased, against the appellee, the Lady Ensley Coal, Iron and Railway Company, to recover damages, alleged to have been sustained by the testator’s estate, resulting from the pollution of a stream, which ran through the lands of the plaintiff’s testator. The amount of damages claimed was five thousand dollars.

Tried before the Hon. S. PI. Sprott. This was an action by the appellee, Rogers, against Marlowe, the appellant, for the recovery of $50, as damages for the conversion by him, on the 10th of November, 1892, of 100 bushels of corn, and 2,000 pounds of seed cotton, the property of the plaintiff.

Heard before the Hon. S. K. McSpadden. The appeal in this case is prosecuted from a decree of the chancellor sustaining demurrers of respondents to a bill of complaint, filed by the appellants against the appellees. This demurrer was on the grounds that the bill was multifarious, and that there was a misjoinder of parties. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. J. M. Carmichael. This action was commenced on September 12, 1891, and was brought by Ryalls & McCrae against Moody & Sapp, to recover damages for the breach of a contract.

Heard before the Hon. Thomas Cobbs. The bill was filed by William E. Perryman against John O’Neill; and sought to establish an equitable set-off, and to restrain O’Neill from enforcing the payment of a judgment recovered against Perryman for $864. This judgment was recovered in the following manner : Perryman sued O’Neill for a debt of $185, evidenced by a promissory note.

- Heard before the Hon. Thomas Cobbs. The bill in this cause was filed by the appellee, James E. Seat, against the appellants, Joshua H. Beadle and others, to establish a resulting trust in certain lands. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. Thos. M. Arrington. This was a statutory claim suit, in which F. M. Jones interposed a claim to certain funds in the hands of a garnishee, who had been garnished at’ the instance of the plaintiffs, S. J. Anderson & Co. The facts of the case are sufficiently stated in the opinion.

Heard before the Hon. John P. Hubbard. Appellee, H. T. Wimberly, brought this suit on an account, which he alleges the Greenville Brick & Building Company transferred to him. The suit is against the Greenville Hotel & Improvement Company, a corporation, and Robt. A. Lee, R. S. Lee, J. G. Bozeman and J. H. Perdue, alleged partners, doing business under the firm name of Greenville Hotel Contractors & Builders. Its purpose is to recover a judgment against Robt.

Heard before the Hon. Thomas Cobbs. The bill in this cause was filed by .the appellee, J. M. Nelson, against the Town of New Decatur ; and prayed to have the 'said respondent perpetually enjoined from selling the lands of the complainant for the payment of certain taxes, which were assessed, as alleged in the bill, without authority of law.

Tried before the Hon. James T. Jones. This was an action of assumpsit brought by the appellees, Elizabeth Long and Catherine Long, against the appellant, Mariah M. Kuhl; and sought to recover the amount paid by the plaintiffs for taxes upon certain property, which they had purchased from the defendant. The suit was originally commenced in a justice of the peace court.

Tried before the Hon. W. P. Chitwood. This was an action on the case, brought by the appellee, Chillian Hill, against J. Knard and J. W. Bain ; and sought to recover damages for the killing of a horse, the property of the plaintiff, in a livery stable, alleged to have been owned and kept by the defendants, through the negligence of a teamster in charge of a team, alleged to have belonged to the defendants. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. James J. Banks. This was an action originally commenced by the appellee, John Hutto, against the appellant, the Richmond & Danville Railroad Company, before a justice of the peace; and sought to recover $100, due on an account fpr cross-ties. There was judgment for $100, and costs, against the defendant in the justice’s court, and after-wards, the cause was taken by writ of certiorari to the circuit court.

Tried before the Hon. H. A. Sharpe. This was an action brought by the May & Thomas Plardware Company against.H. L. McConnell and Stoner & Company ; and sought to fasten a material-man's lien on the house and lot owned by the defendant, H. L. McConnell. Stoner & Co. and McConnell entered into a contract, by which Stoner & Co. agreed to build for McConnell a house for a stipulated amount. The facts in reference to this contract are sufficiently stated in the opinion.

Heard before the Hon. Jere N. Williams. The bill in this case was filed by James Bottoms against James E. Dykes ; and sought to enforce a vendor’s lien on certain lands described in the bill of complaint, alleged to have been sold to the defendant. The facts on this appeal are substantially the same as those disclosed on the former appeal of the case, and found reported in the 101 Ala. 390. It is not deemed necessary to again set out these facts in detail.

Tried before the Hon. John Moore. This was an action of detinue brought by the appellant against the appellee ; and was originally commenced in a justice of the peace court.

Tried before the Hon. H. A. Sharpe. This was an action brought by the appellee, Ed. C. Worns, doing business under the firm name of E. C. Worns & Co., against the appellant, H. L. McConnell, and Stoner & Co. ; and sought to recover for labor performed and materials furnished in the erection of a house owned by saidH. L. McConnell, and to fasten a mechanic’s and material-man’s lien upon the said house and lot.

Tried before the Hon. Thos. M. Arrington. This was a quo warranto proceeding upon the information of B. F. Perkins against The Montgomery Light Comxiany; and sought to vacate and annul the charter of the said Montgomery Light Company, for, as was alleged in the information, offending against the laws of its creation, and.exercising powers and franchises not conferred upon it.

Heard before the Hon. W. W. Wilkekson. The original bill in this case was filed by the appellant, I. B. Higley, against E. B. and C. B. Powell; and sought the specific performance of a contract for the sale to complainant of certain described real estate. The report of that case, on appeal, is found in the 90 Ala.-103.

Heard before the Hon. S. K. McSpadden. The bill in this case was filed by the appellees, Thos. G. Griffin, Sr., and others, against J. W. Miller, J. M. Anderson & Co. and others ; and sought to foreclose a mortgage.

Tried before the Hon. H. C. Speake. This was an action of assumpsit, brought by the appellee, Mrs. W. A. Steadham, against the appellant, Alfred Parrish ; and was commenced by an attachment, which was sued out on the ground that the defendant was a non-resident.

Heard before the Hon. John H. Disque. This was an action brought by the appellee, The Gadsden Mineral Land Company, against the appellant, W. G. Brockway; and counted on a promissory note, which had been executed by the defendant on June 6, 1887, and made “payable to The Gadsden Mineral Land Company.

Heard before the Hon. Jere N. Williams. The bill in this cause was filed by the appellants against the appellees; and sought to set aside as fraudulent and void a deed executed by M. M. McGuire to his wife, H. J. McGuire, conveying certain lands.

<p> Action against a Railroad Company by Employ 'e for Personal Injuries. </p> <p>1. Replication to plea of contributory negligence; burden of proof.— Where, in an action against a railroad by an employé to recover damages for personal injuries, the defendant pleads contributory negligence on the part of the plaintiff, and the plaintiff, instead of joining issue on such plea, files a replication thereto, in which he alleges that defendant knew of his dangerous position at the time of the accident, and was guilty of “wanton recklessness or gross negligence,” the burden of proof is not on defendant to show plaintiff’s contributory negligence; but the plaintiff, confessing by his replication the facts averred in the plea of contributory negligence, must make good the allegations of his replication by competent evidence.</p> <p>2. Motion fox' a nexo trial; continuance does not affect jurisdiction.— Where a motion for a new trial is made within thirty days after judgment rendered, as required by the statute, the court may, by an order of the court made within that time, continue the hearing of such motion beyond the thirty days; and the court will have jurisdiction to consider the motion and enter judgment thereon at the time to which the hearing was continued.</p> <p>3. New trials; xi'hen set aside on ajtyeal. — On an appeal from a judgment granting a new trial, this court will not reverse said judgment of the trial court, “unless the evidence plainly and palpably supports the verdict.”</p>

Tried before the Hon. W. P. Chitwood. This was an action brought in the district court of Lauderdale county, by the appellee, Sallie E. Wood, against the appellant, W. A. Hudson, counting on a promissory note ; and was commenced on April 21,1891.

Heard before the Hon. Wm. H. Tayloe. The bill in this case was filed on December 11th, 1890, by the Mobile & Northwestern Railroad Company against F. G. Ruffin, F. G. Bromberg, Lucy R. Gardner, individually. and as the administratrix of W. IT.

Tried before the ííon. J ohn R. Tyson. The facts of the case are sufficiently stated in the opinion. . 1. The plaintiff in this suit could maintain garnishment against the garnishee. — Curry v. Woodward, 44 Ala. 305; Lehman v. Warner, 61 Ala. 455 ; Davis Bros. v. Montgomery F. & C. Co., 101 Ala. 127; Parsons v. Joseph, 92 Ala. 403; Carroll v. Milner, 93 Ala. 301. 2.

Tried before the Hon. John B. Tally. This was an action of assumpsit counting upon the common counts; brought by the appellant, Alfred Shrimpton & Sons (Limited), a corporation, against the appellees, Brice & Donehoo, to recover an amount alleged to be due plaintiff, for a quantity of pins sold by the plaintiff to the defendants upon their order. The complaint contained the common counts for goods, wares and merchandise sold and delivered and upon an account stated.

Tried before the Hon. W. H. Simpson. The appellant, Joseph D. Epperson, filed a petition, addressed to the city court of Decatur, praying for a writ of prohibition, or other appropriate process, addressed to Green P. Rice, presiding as special judge of probate in the matter of a contested election for the. office of' treasurer of Morgan county, and commanding the said Rice to refrain from further assuming jurisdiction of said contest, restraining him from taking any steps in…

Mattie J. Rice, as administratrix of of D. S. Rice, deceased, filed a petition'in the Supreme Court askipg the court to grant a rule nisi, directed to the Hon. John R.Tyson, Judge of the Second Judicial Circuit of the State, commanding him to'show cause, if any he had, why a peremptory writ of mandamus should not issue from the • Supreme Court, requiring him to dismiss and strike from the docket of said circuit court of Montgomery countv, the cause of M. Kahn, surviving…

<p>Appeal from the Circuit Court of Pickens.</p> <p>Tried before the Hon. S. H. Sprott .</p> <p>The facts of .the case are sufficiently stated in the opinion.</p> <p>cited Jones v. Crews, 64 Ala. 368; Alexanderv. Pollock & Co., 72 Ala. 137; 4 Stewart & Porter, 184; Tillinghast v. Johnson, 5 Ala. 514; Cleaveland v. State, 34 Ala. 254; 1 Brick. Dig. 173, § 276; Liddell v. Ghidester, 84 Ala. 508; Berringer v. Payne, 68-Ala. 154.</p>

Tried before the Hon. W. H. Simpson. On January 2,1891, Joe Barker made affidavit, and had an attachment issued out of a justice of the peace court against the Decatur Grocery Company. This writ of attachment was levied on several boxes of oranges, on January 2, 1891.