Volume 103 — Alabama Reports

Tried before the Hon. John R. Tyson. The appellant was indicted, tried and convicted for the murder of Tom Hartsfield, and was sentenced to suffer death.

Tried before the Hon. Thomas M. Apbxngton. The appellant was indicted, tried and convicted for the murder of Charles Pickett, and was sentenced to be hanged.

Tried before the Hon. Thomas M. Akrtnuton. The appellant was indicted and tried for the murder of his wife, Hester Ezell, and was convicted of murder in the first degree, and sentenced to suffer death.

Tried before the Hon John R. Tyson. The appellant was indicted for murder, convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for a period of twelve years.

Tried before the Hon. O. J. Semmes. The appellant was indicted, and tried for the murder of one Frank Atkins, and was convicted of murder in the second degree, and sentenced to the penitentiary for thirteen years.

- Tried before the Hon. Thomas M. Arrington. The appellants, Joe, Aleck and Wilson Woodley, were indicted jointly with one Jim Calloway, for the murder ofE.H. Grant. Upon the arraignment of the defendants, the said Calloway pleaded “guilty,” and the defendants “notguilty.” Thereupon a day was fixed for the trial, and an order was made by the court for 100 jurors to be summoned to try the eases.

Tried before the Hon. Thomas M. Arrington. The appellant was indicted jointly with four others, for the murder of one Ed. H. Grant.

Tried before the Hon. Thomas M. Arrington. The appellant was indicted, tried and convicted for robbery, and sentenced to the penitentiary for five years. The testimony for the State tended to show that the defendant, with two others, had robbed one Allen Givens of $7.85, of the following denominations : One five dollar bill, two one dollar silver pieces, and the rest in small change.

Tried before the Hon. Jesse M. Carmichael. The appellant was indicted, tried and convicted for an assault and-battery upon one John W. Johnson.

Tried before the Hon. James J. Banks. The appellant was indicted, tried and convicted of an assault with intent to murder, and was sentenced to the penitentiary for five years. The testimony for the State tended to show that the defendant, before the finding of the indictment, shot John Halton. The facts in reference to the ruling of the court upon the evidence are sufficiently stated in the opinion, as is also the tendency of the testimony for the defendant.

Tried before the Hon. S. H. Sprott. The facts of this case, are sufficiently stated in the opinion. The court erred in overruling defendant’s objection to the question asked the witness Crowder. — McKelton v. State, 86 Ala. 594. The portion of the court’s charge in reference to what is essential to prove an alibi was clearly erroneous. — McAnally v.'State, 74 Ala. 91; Albritton v. State, 94 Ala. 76.

Tried before the Hon. John E. Tyson. The appellant was indicted, tried and convicted for grand larceny.

Tried before the Hon. John R, Tyson. The charges of the indictment under which the appellant was tried and convicted are sufficiently stated in the opinion. On the trial of the cause, the testimony for the State tended to show that the sheep, which was the subject of the larceny and the re-marking, with which the defendant was charged, was the property of Elisha Armstrong, and that it was marked in the mark of said Armstrong’s uncle, who gave the sheep to him.

Appeal fx'om the Circuit Court of Randolph. Tried before the Hon. N. D. Denson. The appellant was indicted and tried for manslaughter, and was convicted of manslaughter in the second degree. The only two rulings of the trial court, which are reviewed on this appeal, are sufficiently shown in the opinion. The ruling of the trial court on the motion for a new trial is not revisable on appeal. — Jolly r. State, 94 Ala. 19; Walker v. State, 91 Ala. 76.

Tried before the Hou. John B. Tally. The ap[jellant was tried under the following indietment: “The grand jury for the western division of said county charges that before the finding of this indictment, John II.

Tried before the Hon. Samuel E. Greene. The appellant was tried under the following indictment: “The grand jury of said county charge that before the finding of this indictment, C. O. Clayborne, whose name is to the grand jury otherwise unknown, played at a game with cards or dice, or some device or substitute for cards or dice, at a tavern, inn, storehouse for retailing spirituous liquors, a house or place where spirituous liquors were at the time sold, retailed or given…

Tried before the Hon S. H. Sprott. The appellant, Robert Long, was indicted, tried and convicted for selling spirituous, vinous or malt liquors without a license and contrary to law. The only questions , which are presented on this appeal and considered by the court, are sufficiently stated in the opinion.

<p>Appeal from the City Court of Anniston.</p> <p>Tried before the Hon. Jas. W. Lapsley.</p> <p>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 Sam Smith, on the trial of a civil action in the city court of Anniston, for damages for personal injury to John Smith, while said John Smith was an alleged passenger on one of the trains of the Richmond and Dan-ville Railroad Company, leaving Anniston for Birmingham on June 17, 1891, in which John Smith was plaintiff, and the Richmond and Danville Railroad Company, a corporation under the laws of the State of Virginia, defendant, being duly sworn by the clerk of said court, who had authority to administer such oath, falsely swore that he, Sam Smith, saw John Smith buy a ticket at Anniston for Birmingham on said train; that he', said Sam Smith, got on said train at Anniston, and sat in the same car with John Smith, and a little in front of him; that after leaving Irondale, the conductor went to said John Smith and demanded his fare to Birmingham; that said John Smith told him, the conductor, that he had paid his fare to Birmingham; that the conductor commenced abusing him, said John Smith, grabbed him by the left arm, pushed him to the rear door of the car; cursed the said John Smith, and pushed him off the car while it was in motion; the matters so sworn to being material, and the oath of said Sam Smith in relation to such matters being willfully and corruptly false, against the peace and dignity of the State of Alabama.”</p> <p>The defendant demurred to this indictment, on the grounds : 1st. That the substance of the proceedings or pleadings in the suit in which defendant is charged with having taken a false oath is not set out in the indictment. 2d. That the indictment fails to show that the cause of action in which the defendant is charged with taking a false oath arose within the jurisdiction of the city court of Anniston. 3d. The said indictment fails to aver sufficiently what part or parts of the defendant’s testimony was false. 4th. It fails to show sufficiently for what crime the defendant was indicted. This demurrer was overruled, and the defendant duly excepted.</p> <p>The defendant pleaded not guilty, and by special plea that the cause of action in which the defendant is averred to have sworn falsely was not within the jurisdiction of the city court of Anniston. On motion of the State this special plea was stricken from the file, as frivolous and as being no answer to the indictment; and to this ruling the defendant duly excepted.</p> <p>Upon the trial of the case the State introduced evideace tending to show that on the trial of the cause of action in the city court of Anniston, in which one John Smith was the plaintiff, and the Richmond & Danville Railroad Go. was defendant, brought for the recovery of damages for personal injuries sustained by the said John Smith by being ejected from the train of the defendant railroad company, the defendant in the present case swore, among othér things, that he saw the said John Smith buy a ticket at Anniston for Birmingham over said road; that said John Smith was a passenger on said train, and after having given his ticket to the conductor, was ejected by the conductor from the train before reaching Birmingham ; and that this testimony was false.</p> <p>Upon the examination of A. H. Shepperd, the clerk of the city court of Anniston, he testified that he was present at the trial of the cause of John Smith against the Richmond & Danville Railroad Company, and that the defendant in the present case was subpcenced as a witness in the case of John Smith v. R. & D. R. R. Co., and answered to his name, and was sworn and examined as a witness therein. At the request of the solicitor, the said clerk produced the subpoena docket in the case of John Smith v. R. & D. R. R. Co., and in connection therewith offered to introduce the checks thereon, which showed that the name of the defendant in this case was checked off, the clerk testifying that the said names had been checked off as the witnesses answered to their names. The defendant objected to the introduction of this docket, and the entries thereon, because they were immaterial and irrelevant, and incompetent evidence. The court overruled the objection, and the defendant duly excepted. Wait, a witness for the State, testified that he saw and heard the defendant testify on the trial of the case against the railroad company.</p> <p>The testimony for the defendant tended to show that the facts testified to by him on the trial of the case of John Smith v. R. & I). R. R. Co. were true. One Donovan was introduced as a witness for the defendant, and, after testifying that he knew the general reputation of the defendant in the community in which he lived, stated that his reputation wae good; that “he had never heard anything against him until this matter came up.” On cross-examination the counsel for the State asked the witness this question: “Have you not heard it said, before this indictment was found, and after the case of John Smith v. R. & D. R. R. Co. was tried in this court, in which John Smith claimed damages for injuries, that the defendant and others had conspired together to recover damages by false swearing as to how he was ejected from the train?” The defendant objected to this question, on the ground that it was irrelevant, incompetent and illegal, “andbecause the question calls for evidence of a rumor arising from and growing out of the same matters a,nd transactions, about which the defendant is charged with false swearing.” The court overruled this objection, and allowed the question, “on the ground that the witness had said in his direct examination that he had heard nothing against the defendant before the indictment was found.” To this ruling the defendant duly excepted. To the question asked, the witness answered that he had heard that the defendant and others, in the suit referred to, had “sworn to things which they did not see.” The defendant moved to exclude the answer of the witness on the same ground he- objected to the question, and duly excepted to the court’s overruling his motion.</p> <p>ITpon the' introduction of all the evidence, the court, ex mero viotu, instructed the jury in writing as follows : “Gentlemen of the jury : A grand jury of your county charges Sam Smith with the crime of perjury, as is set forth and stated in the indictment, which has been read before you. In order to convict him the State must,by the evidence, establish all the material allegations of the indictment, and if you have any reasonable doubt as to any of those material allegations you must acquit the defendant. 1st. The evidence must satisfy you that the defendant, Sam Smith, was duly sworn to testify in a cause in this court entitled John Smith against the Richmond & Danville Railroad Company. Unless he was put under the sanction of an oath, and unless it was administered by the officer named in the indictment, and was in the cause named, you must acquit. But if he was duly sworn to testify in the cause named, then enquire further whether or not he testified substantially as alleged in the indictment. Consider fully and carefully what the evidence now before us shows as to his testimony in the former case, and see whether or not the material allegations of the indictment as to his testimony are proven to have been sworn to by him on the trial. (Did he in the other case testify substantially as the grand jury say that he did. It is not essential that every part of his testimony as narrated in the indictment should be proven. For instance, the indictment says that defendant swore that John Smith went out of the back door of the car. If this is a mistake in the indictment, the mistake should not prevent conviction, if the material and substantial allegations are proven, as I will advise you hereafter.) But the State must show you by satisfactory proof that the defendant did give evidence substantially as alleged in the indictment, otherwise you can not convict. (Then carefully consider and compare all the evidence and say whether the defendant’s evidence complained of in the indictment was false or true. If you find different witnesses contradicting each other, then as reasonable, intelligent men',weigh' the testimony of the State going to show the falsity of the defendant’s statements against the evidence showing its truth, and try and determine which you must believe.) I can not instruct you which witness or which set of witnesses to believe. The responsibility rests on you. I may assist you, however, by some general rules, which our experience shows us to be valuable in such cases. For instance, take the State’s witnesses, and their testimony. How was it given before you? What interest or prejudice are they shown to have in the case? What amount of intelligence, capacity or memory do they show to have? Is their testimony reasonable or unreasonable? Was it given in with the apparent desire to tell the truth, or was their evidence given in with an apparent desire to convict the defendant? Was their sworn testimony as they gave it inconsistent, or was it• contradictory? Compare the whole testimony of State’s witnesses, and see if they corroborate each other or contradict each other. If you find that they corroborate each other literally and minutely, consider whether or not this minute corroboration may not show preconcert and arrangement with a purpose to convict. If, on the contrary, thei'e is a substantial agreement and corroboration between the State’s witnesses, together with some variety and seeming conflict as to non-essential or immaterial matters, you should note that agreement and corroboration as important to enable you to determine the naturalness and truthfulness of their statements, for experience shows us that witnesses seeing the same occurrence, and detailing the same, are apt to honestly differ in some of the details, and differences as to' details are frequently found to be consistent with substantial agreement as to the essential and material facts. Now use these same rules in weighing the testimony offered you by the defendant, and in considering the value of the testimony of the defendant’s witnesses. How did they testify — positively, intelligently, fairly, and impartially, or otherwise? Do they corroborate each other in substantial and material points, or do they contradict each other? If they agree in the substantial parts of their testimony, it should go to establish the correctness of their evidence. But if they contradict each other in matters as to which you believe they can not be mistaken, you should consider that fact in estimating the reliability and correctness of what they depose to. Taking all the evidence that has been offered to you on both sides try and arrive at the truth of the issues here. Was the evidence of Sam Smith as charged in the indictment substantially true, or was it substantially false? If satisfied that it was true, you must acquit. Or if on considering all the evidence you are not satisfied beyond a reasonable doubt that defendant swore falsely, you must acquit. If you are satisfied he swore falsely, go a step farther. Was that false testimony material in the case of John Smith vs. R. & D. R. R. Co.? From an inspection of this record I tell you that it was material to show that John Smith did or did not buy a ticket to Birmingham, and was or was not ejected from the car as alleged in his complaint, and if defendant testified as to these matters that John Smith did or did not buy a ticket, or was or was not ejected, the testimony was material in that cause. And if the defendant swore falsely as to either of those matters, it is not essential to prove that he testified falsely as to other.parts of his alleged testimony.</p> <p>‘ ‘Go also a step farther. The testimony complained of must not only have been false and material to the issue, but it must have been willfully and corruptly false. It was willfully false if the defendant was not present on the cars, and knew nothing of what he was testifying about, yet testified that he was present, and testified to occurrences on the car ; or if being on the car and knowing what actually occurred, he knowingly and intentionally testified to what was untrue. You should ask yourselves : was the testimony false, and did Sam Smith know it was false? Again, the law says, it must have been corruptly false. If a man, in order to help a friend, or harm an enemy, testifies falsely for the purpose of misleading a court or jury, you may well believe and find that his purpose was a corrupt one. If, however, the false testimony is given in by mistake or by inadvertence, and with no purpose of wrongly influencing a court or jury, you can not convict. (If, however, the State has convinced you that in the matters set forth in the indictment, this defendant, being duly sworn in the cause as stated in the indictment, testified willfully and corruptly false as to things material in the cause, as alleged in the indictment, then your verdict should be, ‘We the jury find the defendant guilty as charged in the indictment.’) If the State has not so convinced you, you should say, ‘We the jury find the defendant not guilty.’ This cause is important in view of the fact that the ch'arge is of the gravest character, affecting the liberty of this defendant, whom the State does not want to have punished unless he is guilty. It is of the gravest importance also, because if guilty, this defendant has shown contempt for the solemn sanction of his oath before the Almighty to tell the truth, the whole truth, and nothing but the truth. He has, if guilty, come into a court and shown defiance and contempt for the great State and for this tribunal which has been established to do equal justice between us all. .If he is guilty, and you by mistake turn, him loose, you encourage him and others, who may be like him, to defy and contemn the law of the land. If by mistake you turn loose a guilty perjurer in this case what security have we against other bad men, who may seek to use the machinery of this or other courts to advance their base and wicked designs? If, on the other hand, you, by prejudice or mistake, convict an innocent man, you do him a -wrong and injury which is irreparable, and most grievous, and make this court an engine for wickedness and oppression.</p> <p>“(Hence I solemnly charge you to carefully weigh the evidence one against the other, and see which side is telling the truth.) First, see if you can reconcile it all. If you can not reconcile it all, and are forced to conclude that some are lying, try and find out who they are. The prosecution says that defendant and his friends, who have testified for him, conspired together to rob the railroad company, by means of the suit of John Smith against the company, and made up their stories carefully so as to have them agree as to a few main points, whereas on other matters, concerning which they could have had no chance to foresee and agree about, they differ. It is for you to say if this is so or not. The defendant, by his counsel, tells us that this is a case of persecution, the strong cruelly and wickedly oppressing the poor and weak; and that the State witnesses are uncertain, unreasonable and contradictory, and hence unworthy of belief. We sit here, gentlemen, to guard as well as we can against any such iniquity as is charged against the prosecution. If ■ the evidence shows you that ■ such is being attempted, and in fact, unless you are thoroughly convinced that it is not so, you must acquit the defendant. But do not jump to that conclusion simply because the defendant is poor and ignorant, and a great corporation is assisting in the prosecution. The poor widow has a right to cry out to the judge and jury, ‘Avenge me of mine adversary. ’ But she has not a monopoly of that right. All in the land, high and low alike, have a right to appeal to the court of the country, and get redress for their injuries. And if a man has injured you, and while doing so violates the criminal law, you have a right to go before the grand jury and make your complaint, and you have a right to assist, and you are to be commended for assisting, the officer of the law in bringing a guilty man to justice. For in convicting a guilty man you strike terror to wrong-doers, and so help to protect the weak and the innocent. And this right to assist the State in prosecuting a criminal who has wronged you, is a right which every one, rich and poor alike, enjoy. The question here is : ‘Is this a guilty man?’ not, ‘Who is prosecuting or assisting in the prosecutiou of this case?’ True, it may be said, this prosecuting company has power to send to Atlanta, Rome, and along the line of its road, and gather up witnesses to falsely swear away this man’s liberty. And you must consider the likelihood and probability of its doing so, and must fairly consider any and everything tending to show that it has done so. Critically examine the question in the light of experience and reason. Is it probable and reasonable that this company, or its managers or agents, actuated by a wicked and revengeful feeling against the defendant or against John Smith and his friends, who swore for him, or by any other motive, are now seeking by perjury and subornation of perjury to cruelly punish them for standing up for his rights? If you believe the testimony of those of the defendant’s witnesses who have testified to you that there were no white men in that car, then you must believe that those State’s witnesses have perjured themselves, and therefore on their evidence you should not convict this defendant, But if you believe the State’s witnesses were there in the car, then the untrue denial of their presence in the car by defendant’s witnesses is a circumstance to be considered against the defendant. (But if on considering the evidence of the State’s witnesses you think, either from their manner of testifying, or from their appearance, or from the substance of their evidence, or for any other reason, that they have been, hired or suborned, or persuaded or otherwise induced to come here and perjure themselves, or if you think they have come here from their homes voluntarily to blacken their souls with perjury, in order to send this man to the penitentiary, then you must acquit), and must say by your verdict, we the jury find the defendant not guilty. (But if you see no just grounds to disbelieve the case as made by the State and its witnesses, and are convinced that in the matters material to the issues in the John Smith case, the defendant being duly sworn in manner as alleged in the indictment, testified willfully and corruptly to what was false, you should say, we the jury find the defendant guilty as charged in the indictment.) ”</p> <p>The defendant separately excepted to those portions of the general charge of the court, copied above, which are in parentheses, the exceptions being separately reserved at the time such portions of the charge were read to the jury-</p> <p>The defendant also requested the court to give to the jury the following written charges, and separately excepted to the court’s refusal to give each of them as asked : (1.) “The court charges the jury that, if they believe the evidence, they should find the defendant not guilty.” (2.) “The court charges the jury that, unless they believe from the evidence that the personal injuries, for which John Smith claimed damages in the civil suit mentioned in the indictment, were received by him within one of the beats of Calhoun county, Alabama, as now laid off, to-wit, Anniston precinct, No. 15, Oxford precinct, No. 13, DeArmanville precinct, No. 17, or Maddox precinct, No. 4, then you should find the defendant not guilty.” (3.) “The court charges the jury that if they believe from the evidence that acts or conduct of the agent or employó of the Richmond & Danville Railroad Company, which are alleged in the pleadings in the civil action for damages, mentioned in the indictment to have caused the personal injuries to John Smith, plaintiff in said action, were done or committed by such agent or employé in the county of Jefferson, and State of Alabama, then they should find the defendant not guilty.” (5.) “The court charges the jury that if they believe from the evidence that John Smith received the personal injuries in Jefferson county, Alabama, for which he claimed damages in the civil action mentioned in the indictment, then you should find the defendant not guilty.” (11.) “The court charges the jury that unless they believe from the evidence beyond a reasonable doubt, that the whole of the testimony set out in the indictment was willfully and corruptly false, then your verdict should be 'we the jury find the defendant not guilty/” (12.) “The court charges the jury that if they believe from the evidence that any one of the facts charged in the indictment as having been falsely sworn to by the defendant was true, and had a real existence, then they should find the defendant not guilty, even though they should believe from the evidence that the defendant had no knowledge at the time he was testifying that the same was true.” (13.) “The court.charges the jury that, if they believe from the evidence, that the defendant testified in the civil action for damages, mentioned in the indictment, that the conductor took John Smith out of the rear door of the car, at the time John Smith was ejected from the train, near Irondale, then you should find the defendant not guilty.” (14.) “The court charges the jury that if they have any reasonable doubt from the evidence as to whether the defendant bought a ticket at Anniston for Birmingham, for the train leaving Anniston for Birmingham on June 17th, 1891, then they should find the defendant not guilty.” (15.) “The court charges the jury that if they have a reasonable doubt from the evidence whether the defendant got on the train with John Smith at Anniston, and sat in the same car with him until after leaving Irondale on June 17th, 1891, they should find him not guilty.” (16.) “The court charges the jury that if they believe from the evidence that it is true that the conductor after leaving Irondale, June 17th, 1891, went to John Smith and demanded his fare to Birmingham, and that John Smith told the conductor that he had paid his fare to Birmingham, then you should find the defendant not guilty, even though you should believe from the evidence that the defendant did not know the same was true at the time he was testifying in the civil action for damages mentioned in the indictment.” (17.) “The court charges the jury that they must find from the evidence, beyond all reasonable doubt, that the defendant testified to each and every fact in substance as the same is charged in the indictment, before they would be warranted in returning a verdict of guilty against the defendant.” (18.) ‘ ‘The court charges the jury that there is no evidence before them in this case upon which they should find that the defendant was sworn as charged in the indictment.” (19.1 “The court charges the jury that they must find from the evidence beyond all reasonable doubt that each and every fact charged in the indictment, as having been testified to by the defendant, was false, and had no real existence, before they would be warranted in returning a verdict of guilty.” (22.) “The court charges the jury that you can not find that the defendant was sworn by the clerk of this court, unless the evidence convinces you of that fact beyond all reasonable doubt, and the testimony of the witnesses Sliepperd and Wait is not sufficient to warrant you in finding that fact.” (23.) “The court charges the jury that the mark on the subpoena docket opposite defendant’s name is not sufficient to warrant you in finding that fact, unless the proof further satisfies you beyond all reasonable doubt that A. H. Shepperd made the mark at the time he called his name to be sworn.”</p> <p>The indictment sufficiently alleged every ingredient of perjury. — Cifim. Code, p. 275, form 67 ; Code, § 3908; Hieles v. State, 86 Ala. 30; Davis v. State, 79 Ala. 20 ; Peterson v. State, 74 Ala. 34 ; Williams v. State, 68 Ala. 551; Jacobs v. State, 61 Ala. 448 ; Barnett v. State, f>9 Ala. 165 ; Walker v. State, 96 Ala. 53 ; Jones v. State, 100 Ala. 35.</p> <p>It is not a valid objection to an indictment for perjury that it charges, in one count, separate and distinct acts of pex-jury. — Williams v. State, 68 Ala. 551. Pi’oof of any one of such act's will justify a conviction.— Williams v. Slate, 68 Ala. 551; 2 Bish. Cr. Pro., § 934; 2 Whar. Cr. Law, (9th Ed.), § 1301; Whar. Cr. Ev., §§ 131,132,134; Statev. Bishop, 1 D. Chip. (Vt.) 120; Com. v. Johns, 6 Gray (72 Mass.) 274 ; State v. Ilascall, 6 N. H. 352 ; Harris v. People, 64 N. Y. 148 ; People v. Blanchard, 90 N. Y. 314; Webster v. People, 92 N. Y. 422; People v. Haynes, 11 Wendell (N. Y.) 557.</p> <p>The original papers in the damage suit were properly admitted in evidence.— Williams v. State, 68 Ala. 553.</p> <p>The city court of Anniston had jurisdiction of the suit in which the alleged perjury was committed.</p>

Tried before the Hon. John R. Tyson. The appellant was tried and convicted under the following indictment: “The grand jury of said county charge that before the finding of this indictment Will White did corruptly offer, promise or give Peter Singleton, a juror regularly summoned to serve as a petit juror at the spring term 1890 of the circuit court of Escambia county, three yoke of oxen and a cart of the value of two hundred and fifty dollars, with the intent to bias the…

Tried before the Hon. John B. Tally. 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 William PI.

Tried before the Hon. Thomas M. Arrington. 'í'he appellant was indicted, tried and convicted for perjury. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon Jesse M. Carmichael. The appellant was indicted, tried and convicted for burglary. The transcript brought to this court on appeal does not disclose any exception reserved by the defendant on the trial of the cause.

Tried before the Hon. John R. Tyson. The facts of this case are sufficiently stated in the opinion. cited Stitzv. State, 104 Ind. 359 ; Castle v. State, 75 Ind. 146 ; Clem v. State, 42 Ind. 420; 19 Amer. & Eng. Encyc. of Law, 1080. The charge of the court as to good character was proper. Jackson v. State, 94 Ala. 85; Gibson v. State, 89 Ala. 121.

<p>Appeal from the Circuit Court of Perry.</p> <p>Tried before the Hon. John Moore.</p> <p>The facts of this case are sufficiently stated in the opinion.</p>

Tried before the Hon. H. A. Sharpe. This was an action brought by the appellant, A. Kolsky, against the appellee, E. F. Enslen, on December 2d, 1892; and sought to recover from the defendant $800. The action was founded upon the following contract: “A. Kolsky, Esq., Binningham, Ala. Dear Sir: — We hereby agree to refund to you, on surrender to us by you your shares of interest in the East Tenn. & North Ala.

This was a petition by D. M. Nicrosi, addressed to tUe Supreme Court, asking for a writ of mandamus to be issued to the Hon. John R. Tyson, Judge of the Second Judicial Circuit of Alabama, presiding over the circuit court of Montgomery county, commanding him to permit amendments of attachment affidavit, bond and writ, as moved for by petitioner in said circuit court.

Tried before the Hon. J. J. Banks. This was an action brought by the Birmingham National Bank against the appellee,.John G. Bradley, to recover money paid by the plaintiff to the defendant upon a check, which had been raised from two dollars to four thousand dollars ; and was commenced on May 20, 1892.

Appear from the Circuit Court of Jefferson. Tried before the Hon. James J. Banks. R. J. Tillman, the appellee, Recovered a judgment against one Jule Nicholson, and upon said judgment there was issued a writ of garnishment, which was served on the appellant, the Howard-Harrison Iron Company. The proceedings in the case at bar were had upon a contest of the answer of the garnishee. The facts of the case are sufficiently stated in the opinion.

Tried before tbe Hon. S. H. Sprott. This was an action brought by the appellee, the First National Bank of Tuscaloosa, against J. Wick Brown; and counted on a promissory note. The facts of the case are sufficiently stated in the opinion. The defendant offered to introduce evidence tending to show that there was no such place as the Tuscaloosa Fence Factory.

Heard before the Hon. M. T. Porter. The proceeding in this case was had upon an application by M. J. McAdory, as the administrator de bonis non of the estate of F. L. Wadsworth, deceased, for the final settlement of his administration. F. L. Wadsworth, the intestate, died before February 28, 1887, the date of the adoption of the new married woman’s law.

Tried before the Hon. John R. Tyson. This was an action brought by the appellee, James McFerrin, against the appellants, Samuel Parker and another; and counted on an instrument under seal, by which defendants promised to pay to plaintiff the amount sued for. The facts of the case are sufficiently stated in the opinion. There was judgment for plaintiff.

Tried before the Hóh. James J. Banks. The appellees, George W. Linn & Son, brought the present action against the Alabama Great Southern Railroad Company, to recover damages sustained by them by reason of injuries inflicted to a team of mules, wagon and harness owned by them, which injuries are alleged to have been caused by reason of the negligence of the defendant, through its employés. The negligence complained of was in the failure of the defendant’s employés to give the…

Tried before the Hon. W. W. Wilkerson. This was a statutory action of ejectment, brought by the Eureka Lumber Company against J. H. Brown, to recover a certain specifically described lot in the city of Birmingham, with a house situated thereon; and was commenced on December 15, 1892.

Treid before the Hon. W. W. Wilkerson. This was an action brought by the appellee, R. R. Bivins, against the Richmond & Danville Railroad Company to recover damages for personal injuries, alleged to have been sustained by the plaintiff, who was an employe of the defendant, through the alleged negligence of said defendant.

• Tried before the Hon. James J. Banks. This suit was brought by the appellee, Ralph Caravello, against J. C. Kyle, the appellant, and was commenced on October 2, 1891.

On October 17, 1892, Eugene F. Enslen filed Ms bill in the chancery court of Jefferson county, in which he averred, that on December 26, December 27, December 28, and December 29, 1892, Trounstine Bros. & Co., Fechheimer, Fishal & Co., Wienman, Hirshman & Co., and Hodges Bros., in the order named, upon the respective dates stated, sued out writs of attachment against M. Nathan & Co.; that these writs were executed by the sheriff of Jefferson county by levying upon a stock of…

Tried before the Hon. H. A. Sharpe. ’ This was an action brought by the appellee, Annie E. Markee, as administratrix of the estate of John S. Markee, deceased, against the Louisville & Nashville Nail-road Company ; and sought to recover damages sustained by the death of plaintiff’s intestate, which was alleged to have been caused by the negligence of the defendant. The complaint, as originally filed, contained three counts.

Tried before the Hon. James J. Banks . The appellees brought the present suit in the circuit court of Jefferson county, against the appellants, to recover the value of certain insurance policies, which plaintiffs claim had been sold to them by the defendants, and which they refused to deliver, and also to recover a certain sum claimed to be owing to the plaintiffs by the defendants for money had and received.

Tried before the Hon. H. A. Shabpe. This is an action for money had and received, brought by Steiner Brothers against A. A. Clisbyand, as originally filed, the complaint consisted of two common counts ; the first, for money had and received for the use of the plaintiffs ; and the second, for the use of M. L. & C. Ernst, with an averment that the claim was the property of the plaintiffs, having been transferred to them before the commencement of the suit.

Tried before the Hon. John R. Tyson. All the facts are sufficiently stated in th The recital in the judgment that the plaintiff recover the entire cost, was a clerical error, and should have been amended on motion of defendant, so as to limit plaintiff’s recovery of costs to an amount not greater than the damages assesssed. — Sherry v. Priest, 57 Ala. 410, and cases cited ■therein.

Heard before the Hon. S. K. McSpadden. The bill in this case was filed by the appellant, C. H. Rogers, as receiver of the New South National Building & Loan Association, against the appellees ; and sought to enjoin the collection of several judgments recovered by the respondents against the New South National Building & Loan Asssociation, on the ground that said judgments were irregularly and illegally obtained, and that nothing was due respondents on the claims upon which…

Tried before the Hon. J. M. Carmichael. This action was brought by-the appellee, J. J. Whidden, against the Home Protection of North Alabama, was founded upon a policy of fire insurance, and sought to recover for the loss, by fire, of merchandise, a storehouse and fixtures, insured in said policy.

Tried before the Hon. O. J. Semmes. The appellee, John F. Powers, brought the present action against the County of Mobile to recover $485, as fees due to him for services rendered as clerk of the city court of Mobile, in certain criminal cases, which were nol prossed, or where the defendant was acquitted, or the indictment quashed.

Heard before the Hon. H. A. Sharpe. The bill was filed by the appeilee, Parsons, against appellants, B. Steiner and the Birmingham, Powderly & Bessemer Street Railroad Company, a corporation, in his own behalf, as a stockholder, and in behalf of any other stockholder or stockholders in said corporation who choose to join as parties and contribute to the expense of the litigation.

Tried before the Hon. James J. Banks. This was an action brought by the appellee, George Huddleston, against the appellant, Joseph S. Smith, for money had and received. The facts of the case are sufficiently stated in the opinion.

Heard before the Hon. Thomas M. Arrington. The bill in this case was filed by the complainant, Lewis Gilmer, against Pauline Smith, Burke Miller, Elisha Walker and Malinda Walker, on October 3, 1889.

Heard before the Hon. W. H. Tayloe. The bill in this case was filed on March 24,1893, by the appellant, Mariah L. Smith, against the appellees, Fred Hall, Amanda Taylor and Louisa Hall; and prayed to have deeds of conveyance to certin lots of land set aside as fraudulent and void, as against the complainant, as a judgment creditor of the respondent, Hall, and subjected to the payment of the judgment of the complainant.

Tried before the Hon. James J. Banks. This was an action of trover brought by the appellants, Henry H. Wolf & Co., against the appellee, James W. Shepherd, sheriff of Walker county ; and sought to recover damages for the alleged wrongful conversion of certain goods.

Tried before the Hon. J. M. Carmichael. This was a trial of the right to property, which was instituted, as required by the statute, upon the levy of an execution issued on a judgment rendered against M. W. Faulk in favor of G. C. Collier, upon certain property supposed to have been the property of M.W. Faulk, the defendant in execution, and to which the appellant, J. B. Reynolds, interposed a claim. The facts of the case are set forth at length in the opinion.

Heard before the Hon. Thomas Cobbs. The facts of the case are sufficiently stated in the opinion. cited Levy stein v. Whitman , 59 Ala. 345; Webster v. Singley, 53 Ala. 208; 3 Brick. Dig., 699, § 23.

Heard before the Hon. S. K. McSpadden. On December 3d, 1892, the appellee, J. M. Hendrix, filed his bill against the appellant, The Syllacauga Land Co., to enforce the specific performance of a contract for the sale of a certain lot in the town of Syllacauga in Talladega county, Alabama.

Tried before the Hon. H. C. Speake. The facts of the case are sufficiently stated in the opinion. 1. The plaintiff in this cause made out a prima facie case1.. 11 o proved the amount and existence of his debt by Montgomery, and also by the recitals in claimant’s bond., and this fact can not be controverted by claimant.

Tried before the Hon. Jonathan Haralson. This was a statutory action of ejectment, brought by the appellees against the appellants, to recover certain lands specifically described in the complaint, and damages for the detention thereof; and was commenced on February 10, 1892. George Cunningham and Will Cunningham, partners composing the firm of Cunningham & Co., were the original defendants. Lee K. Terrell, as the landlord of said.

Heard before the Hon. John A. Foster. The original bill in this case was filed October 6,1891, by Smith Cullom. Upon the death of the original complainant, the cause was revived in the name of P. H. Bell, as the administrator of his estate.

Tried before the Hon. John B. Tally. This was an action brought by the appellee, W. M. Coggins, against H. J. Collier, Allison, Schaeffer & Co., The Tennessee & Coosa River Railway Company, and the Nashville, Chattanooga and St. Louis Railway Company; and sought to recover for personal injuries, alleged to have been suffered by the plaintiff while in the employ of H. J. Collier, by reason of alleged negligence of coemployés. The allegations of negligence contained in the…

Heard before the Hon. Thomas M. Arrington. The bill in this case was filed in March, 1889, by the American Freehold Land Mortgage Company against Charles T. Pollard, Rebecca M. Pollard, his wife, A. P. DeBardelaben and F. W. Dunton. In January, 1886, Charles T. Poibrd and Rebecca M. Pollard executed a mortgage to the American Freehold Land Mortgage Company, to secure a loan of $21,000, which was evidenced by their promissory notes, and notes for the payment of interest.

Tried before the Hon. J. M. Carmichael. J. S. Reeves & Co., the appellees, sued out, in the circuit court of Henry county, an attachment against J. C. Guilford, one of the appellants, and in addition to being levied upon a stock of goods, the attachment was levied by serving writs of garnishment on several insurance companies.

<p> Application for the Writ of Habeas Corpus </p> <p>1. Sentence of the court; when it goes into effect. — In a criminal case, after judgment of conviction and sentence of defendant, if the court makes no order suspending the execution of the sentence, the sentence of the law goes into immediate operation, and should be executed according to its mandate.</p> <p>2. Unreasonable detention of prisoner after sentence; authorizes Ms discharge: — If, after a defendant is sentenced to hard labor for the county, he is detained by the sheriff in the county jail for an unreasonable length of time, the prisoner is entitled to be discharged on a writ of haebas corpus; and the fact that at the time of the sentence no disposition had been made for convicts sentenced to hard labor for the county, will not justify an unreasonable detention of the prisoner by the sheriff, or prevent his discharge on proper application.</p> <p>3. Same; granting time to prepare bill of exceptions does not prevent discharge. — When, after the sentence of the court is pronounced, there is no order of the court suspending its execution, the fact that, at the time of his conviction, the defendant applied for and was granted 30 days within which to prepare a bill of exceptions for an appeal to the supreme court, and the 30 days had not expired lacking 13 days, constitutes no bar to the prisoner being discharged on proper application, if he has been detained in the county jail during the intervening time.</p> <p>4. Validity of verdict of jury. — The law-not authorizing imprisonment in the penitentiary for a period of one year or less, (Code, § 4492), a jury has no authority to render a verdict fixing defendant’s punishment at imprisonment in the penitentiary for one year; and a court should not receive such a verdict until corrected.</p>

Tried before the Hon. John R. Tyson. On October 7, 1892, the appellants, J. M. White and H. O. Tompkins, brought an action of assumpsit in the circuit court of Montgomery county, against the Alabama Terminal & Improvement Company, “a corporation organized under the laws of Alabama,” to recover $6,000 due by promissory note made, by said defendant.

Tried before the Hon. N. D. Denson. This was an action of unlawful detainer, brought by the appellee, Julia A. Davis, against the appellant, Bill Pugh. The facts of the case are sufficiently stated in the opinion. The appeal is prosecuted from a judgment in favor of the plaintiff. A tenant can not dispute his landlord’s title; but he may show that the landlord’s title has expired, or that he, the tenant, has attorned to another holding a paramount title to his landlord.

Tried before the Hon. John R. Ttson. This was an action brought by the appellant against T. H. Brown and his sureties on a bond for costs, to recover the costs incurred in a proceeding instituted by the said T. H. Brown, contesting the election ' of said W. J. Hilliard to the office of probate judge for Pike county.

Tried before the Hon. H. A. Sharpe. On the 4th day of May, 1888, B. F. Roden & Co. recovered a judgment against D. H. Brown in the City court of Birmingham, for the sum of $566.66.

<p> Action on Account. </p> <p>1. Action on account; when verified account competent evidence of its correctness. — In an action on an account, before an itemized statement of the account, verified by affidavit, is admissible as competent evidence of the account sued on, under the provisions of the statute (Code, § 2773), the account and verification must show a prima facie right of recovery, by showing, among other things, that the amount of the account, which is certain and definite, is due and payable when the suit is brought; and where the verification states that the itemized account is “just, correct, due in part, and unpaid,” such account so verified, does not meet this requirement of the statute, and is not admissible in evidence as competent proof of its correctness.</p>

Tried before the Hon. H. C. Speaks. This was an action by the appellants, B. B. Loventhal & Son, against the appellee, Hassie L. Morris, upon a stated account, and was commenced May 17, 1892. Issue was joined upon the plea of the general issue, and upon the special pleas of the statute of limitations of three years, and the statute of limitatidnAof six years.

Tried before the Hon. W. H. Simpson. On August 1,1888, Michael Mclnerny instituted a suit against William Rich, to recover damages for false imprisonment.

Heard before the Hon. S. K. McSpadden . The bill in this case was filed by the Fort Payne Bank, on September 28, 1892, against The Alabama Sanitarium, the Fort Payne Educational Association, E. W. Godfrey; as trustee, C. O. Godfrey, and eighteen other defendants.

<p> Action of Assumpsit. </p> <p>1. Action against foreign corporation; must be brought in county where it is doing business. — Under the provisions of section 4 of article 3QV of the constitution and section 2642 of the Code, a foreign corporation can be sued in any county where it does business; but a foreign corporation, having a known place of business in the State, is not subject to a personal action in a county beyond such place of business, unless it was doing business in such county at the time of the commencement of the suit, and it is immaterial that the contract was made, or the cause of action on which the suit is founded arose, at some past time, when the corporation was doing business in such county.</p> <p>2. Same; not necessary for plea in abatement to negative the fact that the corporation was doing business in the county where suit is brought when the cause of action arose. — Where a suit is brought against a foreign corporation in a county other than where it has its known place of.business, a plea in abatement, which alleges that the defendant had a known place of business, and an authorized agent therein, in a different county,‘and that, at the time of the commencement of the suit, it was not doing business in the county where the suit was brought, is not demurrable because it fails to negative the fact that the defendant was doing business in the county where the suit Was brought when the cause of action arose; such fact being immaterial to the maintenance of the action.</p> <p>3. Same; when u corporation “does business” in a particular locality. A foreign corporation “does business” in this State, or in a particular county of the State, within the meaning of' the constitution, when it exercises therein some of the functions, powers, or franchises for which the corporation was created to perform, or is engaged in the transaction of the business, or any part thereof, which it was organized to transact.</p> <p>4. Same; same. — The care by a foreign corporation, through its agent, of unused property, and the payment of taxes thereon, the payment of which is essential to the preservation of title in the owner, are not the exercise of corporate powers or franchises, nor the transaction of the business, or any part thereof, for which the corporation was created and organized, in such sort as to constitute the doing of business in the county where such property is situated, within the meaning of the constitution; and these acts do not give the courts of such county jurisdiction of a personal action against said corporation.</p>

Tried before the Hon. John R. Tyson. This was a statutory action of ejectment, originally brought by E. B. Horton against James Rose, to recover certain lands specifically described in. the complaint. Bernheim & Co., being the landlords of the original defendant, Rose, were allowed to come in and defend the suit. The facts of the case are sufficiently stated in the opinion.

Heard before the Hon. John A. Foster. The facts of the case are sufficiently stated in the opinion. cited, Cotton v. Carlisle, 85 Ala. 175 \ Maries v. Robinson, 82 Ala. 69. A court of equity has jurisdiction in the present case. — Westmoreland v. Foster, 60 Ala. 448 ; Comer v. Lehman, Durr' & Co., 87 Ala., 362 ; Alexander v. Rea, 50 Ala. 450 ; Scruggs v. Driver, 31 Ala. 274.

Tried before the Hon James J. Banks. This action was brought by the appellee, W. J. Dangaix, against the appellant corporation, The Scottish Union & National Insurance Company, to recover certain return or unearned premiums on policies of insurance , which had been issued by the defendant corporation to different persons, the holders of said policies having cancelled them, as allowed under the terms of the policies; and demanded the return of a certain proportion of the…

<p>Appeal from Circuit Court of Jefferson.</p> <p>Tried before the Hon. James J. Banks.</p> <p>The facts of the case are sufficiently stated in the ■ opinion.</p>

Heard before the Hon. John A. Foster. On January 10, 1891, Murray, Dibbrell & Co. and O’Bryan Brothers filed a bill of complaint against George P. Heard, A. A. Heard and W. L. Tillman, in which the complainants alleged that they were creditors of said George P. Heard; that on the 5th day of January, 1891, the said George P. Heard conveyed to his wife, A. A. Heard, certain lands, upon the recited consideration of $1,100, in payment of an alleged antecedent debt, due to her by…

Heard before the Hon. Jere N. Williams. The bill in this case was filed by the appellant, W. A. Bellamy, as guardian and administrator, to remove the administration and guardianship of the estate of Mrs. Reese, deceased, into the chancery court, and have an accounting, and a sale of so much of the property of said estate as may be necessary to pay to the complainant any balance which may be found to be due him on final settlement.

Heard before the Hon. Thomas Cobbs. The appellees, H. Weil & Sons, filed this bill against appellants, Charles and William Schall, in behalf of themselves and other creditors of William Schall, who should come in and make themselves parties, and contribute their proportion of the costs of the suit.

The facts-of the case are sufficiently stated in the opinion. cited Coleman v. Smith, 52 Ala. 259; Cabalan v. Monroe, 65 Ala. 254; Guy v. Lee, 80 Ala. 346. A remedial statute must be liberally construed, so as to suppress the mischief and advance the remedy which it is intended to meet. — Blakeney v. Blakeney, 6 Por. 109 ; Sprowl v. Lawrence, 33 Ala. 674.

Tried before the Hon. Jesse M. Cakmichael. This was a statutory action of ejectment, brought by the appellants against the appellees, for the recovery of certain specifically described lands, and was commenced September 23, 1892. Issue was joined upon the separate pleas of each of the defendants of adverse possession for more than ten years.

Tried before the Hon. James W. Lapsley. This was an action of trover, brought by E. M. Lewis, for the use of Matthews & Whiteside, against R. P. Thomason and the Thomason Grocery Company; and sought to recover for the wrongful conversion of an engine and boiler. The said engine and boiler had been sold by E.. M. Lewis to Ellis & Strong, who gave notes for the purchase price, the title to the property being retained by said Lewis until the notes were paid in full.

Tried before the Hon. N. D. Denson. O’Bryan Brothers recovered a judgment against J. M. Davis in the circuit court of Bibb county, on May 24, 1892. Execution was issued upon said judgment, and levied upon certain property of the defendant, which was afterwards sold by the sheriff of said county. Thereupon the defendant, J. M. Davis, moved the court to set aside and vacate the said sale made by the sheriff, upon certain grounds, which are sufficiently stated in the opinion.

Heard before the Hon. Thomas Cobbs. The hill in this case was filed by the appellant, William Banks, against the appellees, on February 22,1893. Martin D. Burchfield died in March, 1886,, a resident citizen, at the time, of Walker county.

Tried before the Hon. J. M. Carmichael. The appellee, James Floyd, brought a statutory action of detinue against the appellants, to recover a small account book, which was alleged to be the property of the plaintiff.

Tried before the Hon. John H. Disque. The appellees, Cunningham & Aderholdt, brought the present action against M. L. Buckley, to recover damages for injury to a stock of goods, which was caused by the bursting of a water pipe in a room over the storeroom of the plaintiffs, which had been rented from the defendant. The facts of the case are sufficiently stated in the opinion .

Heard before the Hon. W. W. Wilkerson. The bill in this case was filed by the appellee, Phillip Rising, against the appellants. The purpose of the bill, and the facts averred therein, are sufficiently stated in the opinion. The appeal is prosecuted from the decretal order of the chancellor overruling the demurrers to the bill. 1.

Tried before the Hon. W. P. Chitwood. This suit was brought on-December 10, 1891, by the appellant, the Industrial Trust, Title & Savings Company, against the appellee, John B. Weakley, Jr., and counted upon a check, which had been drawn by the defendant on the Florence National Bank, in favor of one W. J. Nelson. The facts of the case are set forth at length in the opinion. .

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the appellees against the appellant; and sought to have enjoined a threatened sale of land under a power contained in a mortgage, and prayed to be allowed to redeem under the mortgage. The original bill was filed on July 19th, 1889. This is the third appeal in said cause. The facts of the case are set out in full in the last report of the case, as found in the 99 Ala. 584.

Heard before the Hon. S. K. McSpadden. The bill in this case was filed on December 18, 1890, by the appellant, Reuben Herzfeld, to enforce a vendor’s lien upon certain lands described in the bill.

This-was a petition fpr.. mandamus, addressed tp. the Judges of the Supreme Court, asking for a peremptory writ, compelling the judge of the Third Judicial Circuit to vacate and annul an order made by him requiring the petitioners, who were plaintiffs in an attachment suit, to execute a good and sufficient bond in said cause.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the appellee, Laura B. Hannah, against the appellants, on April 11, 1891.

Heard before the Hon. Jeke N. Williams. The bill in-this case was filed on June 15, 1891, by A. R. Knight against Comer W. Knight and Nancy McQueen.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by. the appellee, Laura Donegan, against the appellant, James Donegan, on December 8,1892, and prayed for the sale of a certain lot, described in the bill, for division between the complainant and the respondent.

Tried before the Hon. John B,. Tyson, On November 4, 1892, Folmar & Sons made affidavit and gave bond for the issuance of an attachment against one A. B. Burnett. The writ of attachment was regularly issued on November 14, 1892, and levied upon certain personal property, which was in the place of business occupied by said Burnett.

Tried before the Hon. J. W. Mabry, Special Judge. This was a statutory action of detinue, brought by the appellee, Randall Crenshaw, against the Commercial Bank of Selma, to recover a certain note and mortgage.

Tried before the Hon. J. M. Carmichael. This was an action brought by the appellants, Behrman & Winter, against the appellee, W. F. Newton, to recover damages for the alleged breach of contract of sale, which had been entered into by the plaintiff and the defendant. The facts of the case are sufficiently stated in the opinion. The goods were in Dothan at the time of sale.

■ Heard before the Hon. Jebe N. Williams. The bill in this case was filed by the appellees against the appellant, and prayed to have a judgment, rendered against the complainants in favor of respondent vacated, and for the issuance of .an injunction restraining the enforcement of an execution issued upon such judgment, in the hands of the sheriff. Most of the allegations of the bill are sufficiently stated in the opinion.

Heard before the Hon. W. H. Tayloe. . The bill in this case was filed on May 13th, 1892, in the chancery court of Fayette county, by J. S. Reeves & Co., Handley Bros. & Go. and Murray, Hibbrell & Co., against the appellee, John A. Brown, for the purpose of foreclosing the several mortgages, which had been exe cuted by the said respondent, Brown, to each of the three complainants. The property which was conveyed in the mortgages was situated in Jefferson county.

Tried before the Hon. John B. Tyson. On February 23, 1891, the appellee, Elizabeth Jones, brought an action of trover against “Curtis & Wright, defendants.’ ’ Judgment was rendered in this action for the plaintiff, and execution was regularly issued thereon, and placed in the hands of the sheriff.

Tried before the Hon. John R. Tyson. This action was brought by the appellee against the appellant railway corporation, to recover damages for the killing of cattle. There was judgment for the plaintiff in said suit.

Heard before the Hon. H. A. Sharpe. The appellee, Morris Mining Co., filed its petition in the cause of W. T. Underwood, et al. v. Joseph B. Wolfe, pending in the city court of Birmingham, sitting in equity, praying to be allowed to intervene in said cause, and propound its claim for $109,000, as damages for the alleged breach of a contract made and entered into by and between the said Morris Mining Co. and the Mary Pratt Furnace Co., a corporation which had been dissolved…

Tried before the Hon. John R. Tyson. This was an action brought by the appellees, Young-blood & Sons, against the' appellant, Belser, for the alleged conversion of three bales of cotton, upon which the plaintiffs claimed to have a mortgage.

<p>Appeal from the Chancery Court of Perry.</p> <p>Heard before the Hon. W. H. Tayloe .</p> <p>The facts of the case are sufficiently stated in the opinion.</p>

Tried before the Hon. H. C. Speake. On July 14th, 1893, A. W. Jackson brought an action in a justice of the peace court against Mrs. Ella T. Newsom, which was founded upon a promissory note, executed by the-defendant to one Hinton E. Carr, on June 2, 1893, and payable 30 days after date.

Tried before the Hon. John B. Tyson. This was a statutory action of ejectment, brought by the appellant, W. G. Hatchett, one of the heirs of Mary E. Hatchett, deceased, against the appellees, for an undivided one-sixth interest in certain real property of the estate of the deceased. The defendants pleaded the general issue.

Tried before the Hon, J. M. Carmichael. This was an action of assumpsit, brought by the appellants against the appellee, the complaint containing the common counts. On this appeal prosecuted by the plaintiffs, the only assignments of error are based upon the ruling of the trial court on the plaintiffs’ motion for a new trial.

Heard before the Hon. Thomas M. Arrington. The bill in this case was filed by the appellee, Eugene Mahoney, on March 3, 1893, against the appellants; and sought to establish in the complainant a life estate in certain property, and have such property sold.

Tried before the Hon. Samuel H. Sprott. This was an action brought on May 2, 1892, by the appellant, C. B. Yerner, as the administrator of the estate of Samuel D. Winter, deceased, against the Alabama Great Southern Railroad Co. The complaint filed in the cause was as follows : ‘1 The plaintiff claims of the defendant the sum of twenty thousand ($20)000.00) dollars as damages for the wrongs and injuries done by it hereinafter complained of: For that, whereas, heretofore,…

Heard before the Hon. W. H. Tayloe. On May 18, 1891, .the appellant, Thomas J. Henry, fded the bill in this case against John Henry, Mary Ellen Ruffin, Prank G. Ruffin, Jr., her husband, and Mary Henry, the executrix of the estate of Thomas Henry, deceased.

Tried before the Hon. John R. Tyson. This appeal was taken by the’ appellant from a judgment of the circuit court of Pike county, in favor of the defendants in an ejectment suit, brought by the appellant against the appellees. In this court a motion was made to strike the bill of exceptions from the record, and this motion is the only question considered by the court. The facts in reference thereto are sufficiently stated in the opinion.

Tried before the Hon. James T. Jones. The appellant, James A. Slater, brought a statutory action of ejectment, on September 16th, 1893, against the appellees, for the recovery of certain lands specifically described in the complaint. The defendants pleaded the general issue, and the facts disclosed on the trial under the issue thus formed are sufficiently stated in the opinion. At the request of the defendants, the court gave the general affirmative charge in their behalf.

. Tried before the Hon. James J. Banks. This action was brought by the appellee, C. O. Lager-felt, on October 10, 1891, against the appellant, E. W. Morris, to recover the sum of one hundred dollars, claimed to be due to the plaintiff upon a written contract for the sale of an option on a gold mining claim. The complaint as originally filed contained but one count, claiming an amount due on said contract.

Heard before the Hon. W. H. Tayloe. The bill in this case was filed on May 17, 1893, by the children and grand-children of William Kilgore, deceased, and Margaret Kilgore, his wife, against Robert Kilgore. The complainants and the respondent are all the heirs of the said William Kilgore. The allegations of the bill are sufficiently stated in the opinion.

Heard before the Hon. S. K. McSpadden. ■ The facts of the case are sufficiently stated in the opinion. 1. Held: in respect to railroad corporations, that while one railroad company, after having acquired the majority of the stock in another railroad, can not and will not be permitted to vote the stock, still it has the power to sell and dispose of the same. — M. & C. R. R. Go. v. Woods, 88 Ala. 630. 3.

Tried before the Hon. J. M. Carmichael. This was a statutory action of detinue, brought by Theophilus Bryan, against W. J. Gresham, to recover 130 bushels of corn. The facts of the case are sufficiently stated in the opinion. There was judgment for the plaintiff, and the defendant appeals.

Heard before the Hon. W. H. Tayloe. The bill in this case was filed on November 2, 1892, by Barbara Whitman, as a creditor of the firm of Mountain & Sons, composed of Samuel A Mountain, senior, Samuel A. Mountain, junior, and John Mountain ; and sought to have a deed of conveyance, executed by the said Samuel A. Mountain, Sr., to Everline Mountain set aside as fraudulent and void, as to the creditors of the firm of Mountain & Sons.

Tried before the Hon. N. D. Denson . This action was brought by the appellee, Henry Gentry, against the Louisville & Nashville Railroad Company, to recover damages for the alleged negligent killing of a cow, which was run overby one of defendant’s trains. The suit was commenced in a justice of the peace court, where judgment by default was rendered against the railroad company, and the cause was rent oyed to the circuit court by certiorari.

Tried before the Hon. John R. Tyson. On January 21, 1893, William J. Murphy, the appellant, obtained a judgment in the court of a justice of the peace against- M. L. Wood, the appellee. On January 23, the defendant Wood filed his appeal bond and obtained an appeal to the circuit court from the judgment thus rendered. In the circuit court there was a judgment entered, dismissing the cause for the want of prosecution.

Tried before the Hon. W. W. Wxlicerson. This was an action of assumpsit, brought by the appellants against the appellee, T.. li. Smith, to recover commissions, which they claimed as real estate agents.

Heard before the Hon. Jas. W. Lapsley. The bill in this case was filed on March 4, 1892, by the complainant, D. A. Stewart against‘Russell Homan; and sought the specific performance of an alleged contract of sale, between the complainant and the defendant.

Tried before the Hon. John R. Tyson. The present appeal is prosecuted from a judgment of the circuit court refusing to grant a petition of the appellant to set aside and annul a judgment recovered by the appellees in an action of ejectment against the appellant, and also to vacate and set aside the writ of possession issued upon said judgment. The facts of the case are sufficiently stated in the opinion.

<p> Proceeding to Vacate Execution Sale. </p> <p>1. Motion to set aside sale under execution; effect of appeal. — Where, on a motion to vacate, and set aside a sale under an execution, it is shown that"the plaintiff in execution knew at the time of the sale that the cause wherein the execution was issued would be appealed to the Supreme Court, that the purchaser was notified by the defendant in execution before the sale, and before he paid the purchase money, that said cause would be appealed, that the supersedeas bond was filed before the amount of the purchaser’s bid was paid, but was not accepted by the clerk until after the payment of said money, that the cause was appealed and the judgment on which execution was issued was reversed, there is no sufficient ground shown for setting aside said sale.</p>

James T. Jones. The appellees sued the appellant railroad company for killing a colt on the track of its line. The defendant pleaded the general issue.

Tried before the Hon. James J. Banks. The proceedings in this case were had upon a statutory trial of the right of property, which was instituted by T. Tobias & Co. interposing a claim to certain goods and merchandise, which had been levied upon as the property of M. Nathan, doing business under the firm name of M. Nathan & Co., under an attachment sued out by the appellees, Treist & Co. The claimants based their right to the property so levied upon on a bill of sale, which…

Tried before the Hon. John B. Tally. This action was brought by the appellee, The Furman Farm Improvement Company, against S. C. Capehart and Jasper Smith, as common carriers, to recover damages for the failure to deliver a certain lot of fertilizer. The complaint contained five counts.