Volume 105 — Alabama Reports

Tried before the Hon. James J. Banks. The appellant was indicted, tried and convicted for forgery.

Tried before the Hon. Samuel E. Greene. The appellant was indicted and tried for the murder Wiley Roberts, was convicted of murder in the first degree, and sentenced to the penitentiary for life.

Tried before the Hon. John R. Tyson. The appellant was indicted and tried for the murder of General Evans, and was convicted of murder in the second degree, and sentenced to the penitentiary for ten years. The tendency of the evidence is sufficiently stated in the opinion.

Tried before the Hon. Jesse M. Carmichael. The appellant was indicted, and tried for the murder of Carter Williams, and was convicted of murder in the first degree, and sentenced to be hanged.

Tried before the Hon. Thomas M. Arrington. The appellant was indicted, tried and convicted for the larceny of a hog, and sentenced to the penitentiary for three years.

Tried before the Hon. N. D. Denson. The appellant was indicted and tried for the murder of one George A. Wood, and was convicted of manslaughter in the second degree, and his punishment fixed at hard labor for the county for one year. On the trial of the cause, the evidence tended to show that the defendant with some neighbors went to examine a fence of the deceased, whom it was shown had killed some of the defendant’s sheep.

Clair. Tried before the Hon. Leroy F. Box. The appellant was indicted and tried for the murder of one Powell Hancock, and was convicted of murder in the second degree, and sentenced to the penitentiary for ten years.

Tried before the Hon. Samuel E. Greene. The appellant was indicted, tried and convicted for the murder of Eugene Walker, and was sentenced to be hanged. The evidence on behalf of the State tended to show that Eugene Walker, the deceased, was killed by being shot with a pistol near Birmingham in Jefferson county, on Saturday night, January 6, 1894, .

Tried before the Hon. John R. Tyson. The appellants, Joe Roland and John Folks, were indicted and tried for the murder of one John Mitchell, and were convicted of murder in the first degree, and sentenced to the penitentiary for life. On the trial of the cause, there was evidence introduced tending to show that the defendants had shot the deceased from ambush and killed him.

Tried'before the-Hon. Samuel. E, Greene.- The indictment under which the appellant was tried, was preferred at the April term, 1893, of the criminal court of Jefferson county, and contained two counts ; the first charging the appellant and. one Beverly Hargrove with assault with intent to murder, and the second charging the appellant and said Beverly Hargrove with assault with intent to rob.

Tried before the Hon. Thomas M. Arrington. The appellant was indicted, jointly with one Bill Williams and Trance Singleton, for the murder of Meredith Sledge, was granted a severance, tried separately and convicted of murder in the second degree, and was sentenced to the penitentiary for fifteen years.

Tried before the Hon. H. C. Speake. The appellant was indicted, tried and convicted of arson, and sentenced to the penitentiary for 7 years. The indictment as originally preferred, and the amendments thereto are shown in the opinion. The defendants duly excepted to the court allowing the addition of the new counts to the indictment.

Tried before the Hon. Samuel E. Greene. The appellant was indicted and convicted for an assault with intent to murder one W. R. Kingsmore, and sentenced to the penitentiary for ten years. The evidence for the State tended to show that the assault upon Kingsmore by the defendant was unprovoked, and that the defendant shot him two or three times.

Tried before the Hon. James J. Banks. The appellant, Bethel Cole, was indicted, tried and convicted for the murder of George Cramer, and sentenced to the penitentiary for life. The rulings of the court upon the organization of the jury, and the motion to quash the venire, are sufficiently stated in the opinion.

Tried before the Hon. Jesse M. Carmichael. The defendant was indicted, tried and convicted of arson in the second degree, and sentenced to the penitentiary for two years. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. James T. Jones. The appellant in this case, Sanford Grimes, was tried and convicted under an indictment charging in one count rape, and in the other, carnal knowledge of a female under 10 years of age ; and was sentenced to the penitentiary for life.

Tried before the Hon. John W. Bishop. The appellant was indicted and tried for the killing of Will Love, and was convicted of murder in the second degree, and sentenced to the penitentiary for 15 years.

Tried before the Hon. Thomas M. Arrington. The appellant was indicted, tried and convicted for the larceny of a cow, and sentenced to the penitentiary for three years.

Tried before the Hon. Ti-iomas M. Arrington. The facts of the case are sufficiently stated in the opinion. The court erred in its rulings upon the evidence. — Sylvester v. State, 71 Ala. 17; Stewart v. State, 78 Ala. 439 ; 3 Brick. Dig., 287, § 592; 7 Amer. & Eng. Encyc. of Law 492-3; 3 Brick. Dig'., 288, § 605 et seq.; Gassenheimer v. State, 52 Ala. 313 ; McAdory v. State, 59 Ala. 92 ; Coleman v. State 87 Ala. 14.

Tried before the Hon. Jesse M. Carmichael. The appellant, Burrell Holley, and George and Ed. Price were jointly indicted and tried for robbery. The Prices were acquitted, but Burrell Plolley was Convicted of the offense charged, and sentenced to the penitentiary for five years.

Tried before the Hon. Jesse M. Carmichael. The facts of the case are sufficiently stated in the opinion. The demurrer to the indictment should have been sustained because there was a misjoinder of offenses in the two counts ; the first count charging a felony, and the second' count, a misdemeanor. — Adams v. State, 55 Ala. 143 ; James v. State, 104 Ala. 20. The indictment does not contain a misjoinder of offenses.

<p>Appeal from the Circuit Court of Calhoun.</p> <p>Tried before the Hon. Leroy F. Box.</p> <p>The facts are sufficiently stated in the opinion.</p>

Tried before the Hon. James W. Lapsley. The appellant was tried and convicted under the following indictment: The grand jury of said county charge that before the finding of this indictment that Will McClerkin alias William McClerkin, on the trial of a civil action in the city court of Anniston, for damages for personal injury to John Smith, while said Smith was an alleged passenger on one of the Richmond & Danville Railroad Company’s trains, leaving Anniston for Birmingham…

<p>Appeal from the Criminal Court of Pike.</p> <p>Tried before the Hon. William H. Parks.</p> <p>The facts of the case are sufficiently stated in the opinion.</p>

<p> Prosecution for Trespass after Warning. </p> <p>1. Ih’espass after warning; actual possession. — Where the dividing line between adjoining owners of land was uncertain, and they had fixed and acquiesced in a temporary boundary line, up to which they each planted crops on either side, such actual possession up to the line is acquired as will support a prosecution for trespass after warning.</p> <p>2. Same; when not shown. — On a prosecution for trespass after warning, evidence that defendant was warned “some time in May,” or about the last of May or the first of June, not to cross the line of the prosecutor’s land, and that the trespass occurred about the last of the preceding April or first of May, will not support a conviction.</p>

Tried before the Hon. Thomas M. Arrington. The appellant was indicted, tried and and convicted upon two separate indictments, charging him with petit larceny. The two cases involve identically the same rulings, and on' appeal to this court are submitted together. On August 20, 1894, there was a warrant sworn out before a justice of the peace of Montgomery county, charging the defendant, Brown, with the larceny of several articles at diffierent times.

Tried before the Hon. N. D. Denson. The appellant was tried and convicted under the following indictment: “The grand jury of said county charge that before the finding of this indictment that Sam Beeves set up, or was concerned in settingup or carrying on a lottery.

Tried before the Hon. James T. Jones. The appellant was indicted, tried and convicted for an assault and battery with a stick or switch upon Polly Ann Spicer and Aurelia Spicer.

Tried before the. Hon. Thomas M. Arrington. The appellant was indicted, tried and convicted for burglary. There is but one question presented on the present appeal, which refers to the ruling of the court upon the introduction of evidence.

Clair. Tried before the Hon. Leroy -F. Box. Walter Blankenship was convicted of an assault with a weapon, and fined $500. H. B. Blankenship and others confessed judgment with the defendant in open court for the said fine and costs of the prosecution.

Tried before the Hon. Jesse M. Carmici-ieal. The appellant was tried and convicted under the following indictment: “The grand jury of said county charges, that before the finding of this indictment that Tink Graham played at a game with cards or dice, or some device or substitute for cards or dice, at atavern, inn, storehouse for retailing spiritous liquors, or house or place where spiritous liquors were at the time sold, retailed or given away, or in a public house,…

. Appeal from the Circuit Court of Chambers. Tried before the Hon. N. D. Denson. The appellants, William Brooks and James Griffin, were indicted, tried and convicted for selling liquor without a license.

Tried before the Hon. William L. Stephens. The defendant was indicted, tried and convicted of an assault upon Julia A. Dial, and fined $50. The facts of the case are sufficiently stated in the opinion. In his oral charge to the jury, the court, among other things, instructed them as follows: “An officer with an execution in his hands against a defendant levies it at his peril.

Tried before the Hon. John B. Tally. The appellant was tried and convicted under the following indictment: “The grand jury of said county charge that before the finding of this indictment, Berry Henderson, a man, and Dollie Croffit, a woman, did live together in a state of adultery or fornication, against the peace,” &c. On trial of the case, as shown by the bill of exceptions, there was evidence, tending to show that the defendant had been guilty of living in a state of…

Heard before the Hon. Thomas M. Arrington. The proceeding in this case was commenced by a petition, addressed to the judge of the city court of Montgomery, filed by the appellee, L. D. Godfrey, as solicitor of the sixth judicial circuit, against John Purifoy, Auditor of the State, asking for a writ of mandamus to compel the Auditor to draw his warrant on the State Treasurer in favor of the petitioner for the sum of $326.46, alleged to be due him as commissions on solicitors…

Tried before the Hon. John Moore. This action was brought on February 25, 1890, by J. C. Chestnut against M. M. Tyson, to recover damages for the alleged breach of a covenant for quiet enjoyment contained in a lease of a plantation by the defendant, Tyson, to the plaintiff, Chestnut.

Tried before the Hon. H. A. Sharpe. This was an action on the case, brought by the appellee, J.W. Tayloe, against the Mayor and Aldermen of Birmingham, to recover damages for personal injuries, alleged to have been inflicted upon the plaintiff, by reason of the negligence of the defendant in allowing the sidewalk of one of its streets to be obstructed. The principal facts of the case are sufficiently stated in the opinion.

Tried before the Hon. John B. Tyson. The action in this case was brought by the appellee, Margaret Nelson, against the appellant, the First National Bank of Montgomery, on March 8,1893.

Tried before the Hon. W. W. Wilkerson. This was an action of trover, and was instituted by the Bauer Grocery Company against B. B. Hudson and George M. Hudson on April 23, 1893, to recover damages for the alleged conversion by the defendants of certain goods described in the complaint, which had been purchased from the plaintiff, a business corporation of St. Louis, Mo., in the latter part of March, 1893, by one J. T. Harris.

Tried before the Hon. H. A. Sharpe. This was an action brought by the appellant, Joe Frank-, against the appellee, W. A. Thompson, and counted on a promissory note, which was executed by the defendant, W. A. Thompson, and F. P. Thompson.

The Highland Avenue & Belt Railroad Company filed its petition addressed to the judges of the Supreme Court, in which they alleged that on October 12, 1894, James W. Fennell recovered a judgment against the petitioner in the city court of Birmingham, in a cause then pending in said city court, in which James W. Fennell was plaintiff, and the Highland Avenue & Belt Railroad Company was defendant; that on November 12, 1894, the petitioner entered a motion on the motion docket…

Heard before the Hon. Thomas Cobbs. On the 26th day of July, 1890, the Highland Avenue & Belt Railroad Company filed a bill in the chancery court of Jefferson county against M. Clifford, wherein it was alleged, among other things, that said company had, on the 15th day of September, 1889, leased to said Clifford a certain hotel, known as The Lake View Hotel, and the furniture therein, until the 15th day of September, 1890, for a certain stipulated rent; that said Clifford…

Mary E. Branch, filed her petition in this court, in which it was averred that there was pending in the circuit court of Pike county, a statutory action of ejectment by Jane Branch against G. Hendricks ; that before any order was taken in said cause, to-wit, on March 14, 1893, the plaintiff in that suit made an affidavit under section 2802 of the Code, for the purpose of having the deposition of Mary E. Branch, the petitioner, taken.

Tried before the Hon. James T. Jones. Marshall G. Candee, the appellee, sued the appellant, Isham Pheland, in a justice of the peace court, to recover a judgment against defendant, from which judgment an appeal was taken to the circuit court. The transcript from the justice of the peace court, certified to the circuit court on appeal, does not show that there was either complaint or plea filed in the justice’s court.

Tried before the Hon. W. W. Wilkerson. This was an action to recover an amount due for work and labor done, and was brought by the appellee, Robert Hawving, against the appellant, “John Woodrow, doing business as the Birmingham Steam Dye Works.” The complaint was as follows : “The plaintiff claims of the defendant the sum of one hundred dollars due from him by account on the 1st day of April, 1893. “(2.) The plaintiff claims of the defendant the further sum of one hundred…

Tried before the Hon. John R. Tyson. Harmon Brothers were merchants in Union Springs, Ala., up to the latter part of January, 1886. At that date they sold and conveyed their stock of goods to their father, John Harmon, upon the alleged consideration of an indebtedness to Mm in an amount equal to or exceeding their full value.

Tried before the Hon. Thomas M. Arrington. This action was brought by the appellee, W. A. Huddleston, against M. Loeb, to recover the statutory penalty of two hundred dollars, for the defendant’s failure, for more than thirty days, to enter partial payments on the margin of the record of a mortgage, which was executed by the plaintiff to Loeb & Weil, and subsequently transferred to the defendant. The defendant pleaded the general issue, and issue was joined thereon.

Tried before the Hon. S. E. McSpadden. The facts of this case, as averréd in the bill and disclosed by the evidence, are sufficiently stated in the opinion.

Tried before the Hon. Leroy F. Box. The facts of the case are sufficiently stated in the opinion. 1. The effect of a breach of warranty or misrepresentation of any material matter contained in the application for insurance or the policy itself is to vitiate the policy.— Western Assurance Go. v. Stoddard, 88 Ala. 606 ; Pelican Ins. Go.v. Smith, 92 Ala. 429 ; Phoenix Ins. Go. v. Copeland, 86 Ala. 551; Dewees v. Manhattan Ins. Go., 34 N. J. L. 244; Carson-v. Jersey City Ins.

Tried before the Hon. James W. Lapsley. This suit was brought by the appellant, the first National Bank of Gadsden, against James C. Sproull, the appellee, for money had and received, seeking to recover one-half the amount received by the defendant from certain property sold by him, on which the plaintiff had a lien as assignee of a certain mortgage and the notes secured thereby. The complaint contained a second count claiming the same amount of money as due by account.

Tried before the Hon. John R. Tyson. This suit was brought by the appellants, J. S. Sellers & Sons, against the appellee, the Commercial Fire Insurance Company, and was founded on a policy of insurance against loss or damage by fire, covering a storehouse and a stock of merchandise therein.

Tried before the Hon, John R. Tyson. The appellant, the Porter & Blair Hardware Company, recovered a judgment against James H. Perdue, R. S. Lee and J. G. Bozeman at the Fall term, 1892, of the circuit court of Butler county. On this judgment a process of garnishment was issued and served on the city of Green-ville, and the mayor and council of the city of Greenville. No noticeof the issuance and service of said garnishment was served upon the defendants.

Appeal iron the Chancery Court of DeKalb. Heard before the Hon. S. K. McSpadden. The bill in this case was filed by the appellants, Rice, Stix & Company, and other creditors of Charles Less, agaiust the appellees, Charles Less and certain attaching creditors. The purpose of the bill, and the facts of the case are sufficiently stated in the opinion. The appeal is prosecuted by the complainant from a decree of the chancellor dismissing the bill. cited German Nat.

. Tried before the Hon. H. C. Speaice. This was a statutory claim suit, instituted by the appellant, L. A. Carter, interposing a claim to a stock of goods, which had been levied upon by an attachment, sued out by the appellees, O’Bryan Brothers, against W. F. McGwier, on the ground that the defendant had fraudulently disposed of his goods. Upon the trial of the claim suit, the following proceedings were had, and the following facts were disclosed : On January 6, 1892.

Tried before the Hon. Jesse M. Carmichael. This suit was instituted on July 12,1893, by the Singer Manufacturing Company, a private corporation, organized under the laws of the State of New Jersey, against D. A. McLean and J. P. Harris, surety on McLean’s bond for the faithful performance by McLean of a contract executed by him and The Singer Manufacturing Company.

Tried before the Hon. H. C. Speake. This action was brought by the appellee, J. S. Daily, against the appellant, William J. Gill, and his wife, M. L. Gill, and counted upon a promissory note containing a waiver of exemptions, and was commenced in a justice of the peace court. William J. Gill filed a plea of non est factum, and his wife filed a plea of coverture. Neither of the defendants were able to write.

Heard before the Hon. Jere N. Williams. Thomas J. Maddux, the appellee, filed his bill of complaint against the appellants, W. I. R. Thompson, as the surviving partner of the firm of Robinson & Thompson, and Jordan & Sons; and prayed for an injunction to restrain W. I. R. Thompson from foreclosing a mortgage executed by complainant to Jordan & Sons, and by them assigned to Robinson & Thompson.

Tried before the Hon. Samuel H. Spkott. Several creditors, including the appellants-, Leinkauff & Strauss and Katz & Barnett, sued out attachments against their common debtor, The Tuskaloosa Sale & Advancing Co., which were levied upon the stock of goods belonging to said defendant.

Tried before the Hon. John B. Tally. This action was brought by the appellant, William A. Cobb, against the appellee, William C. Daniel, to recover damages for the alleged conversion of two bales of cotton. Issue was joined on the plea of the general issue.

Clair. Heard before the Hon. S. K. McSpadden. The bill in this case was filed by the appellants, who are the children of Wesley Goodwin, deceased and M. D. Goodwin, against the appellees, on March 8, 1890, to set aside a sale of certain property, of which they claimed to be the owners, and to be allowed to redeem the said property.

Tried before the Hon. Jesse M. Carmichael. This action was brought by the appellants, Joseph Simon & Son, a partnership, against the appellee, J. J. Johnson, for goods, wares and merchandise sold and delivered to the defendant. The complaint* contained the common counts. Issue was joined on the plea of the general issue. The ■ plaintiffs introduced in evidence verified statements of an account for goods sold by them to the defendant.

Heard before the Hon. Jere N. Williams. The bill in this case was filed by the complainant, The American Freehold Land Mortgage Company, Limited, against John A. James and his wife, EllaL. James, and the Loan Company of Alabama. The purpose of the bill was to foreclose a mortgage, which had been executed by John A. James and Ella L. James, his wife, to the complainant.

Tried before the Hon. .John R. Tyson. This was a statutory claim suit, which was instituted by Mrs. J. R. Lawson interposing a claim to certain household furniture, which had been levied upon under an execution issued upon a judgment recovered by M. J. Ross, the appellant, against J. R. Lawson, the husband of the claimant.

Tried before the Hon. James W. Lapsley. This action was brought by the appellee, W. T. Cochran, against the Louisville & Nashville Railroad Company, to recover damages for the killing of ahorse, the property of the plaintiff, which was alleged to have been caused by reason of the negligence of the defendant’s employes. The amount of damages claimed was one hundred dollars. The defendant pleaded the general issue, and contributory negligence on the part of the plaintiff.

Tried before the Hon. John P. Hubbard. The appeal in this case.is prosecuted by A. L’ Morgan from a judgment of the circuit court overruling motions •made by appellant to set aside and vacate a judgment rendered against her, and also to quash a writ of venditioni exponas issued upon said judgment. The cause was submitted in this court, together with a motion to dismiss the appeal.

Heard before the Hon. Jere N. Williams. The bill in this case was filed by George W. King, on February 27, 1892, against The American Mortgage Co. of Scotland, Limited, and the Loan Company of Alabama. The prayer of the bill was to cancel two separate mortgages, executed by the complainant and his wife to the respective respondents, as clouds on the title of the complainant.

Heard before the Hon. Jere N. Williams. The original bill in this case was filed by the Green-ville Hotel & Improvement Company and R. A. Lee, as the assignee of a judgment in favor of the contractors who built the Greenville hotel, against the Porter & Blair Hardware Company and another; and sought to restrain the Porter & Blair Hardware Company from selling certain property under an execution issued upon a judgment recovered by-it against certain contractors.

H. C. Speaks. The appellee, George W. Stutts, as administrator of the estate of Thomas Lloyd, deceased, brought this action against the Louisville & Nashville Railroad Company, to recover damages for the alleged negligent killing of the plaintiff’s intestate.

Tried before the Hon. Leroy F. Box. Thomas A. Williams, the appellee, brought the present action against the appellant, the Louisville & Nashville Railroad Company, to recover damages for the alleged negligent killing by the defendant of a yoke of oxen, the property of the plaintiff. The defendant pleaded the general issue, and contributory negligence.

Tried before the Hon. Leroy F. Box. This was a statutory action of ejectment instituted on July 14, 1892, by the appellants against the appellees; and was brought to recover a 40 acre tract of land specifically described in the complaint, which was devised to the plaintiffs by their father, William McMichael, subject to a life estate in said lands devised to the plaintiffs’ mother, Biddy McMichael.

Tried before the Hon. Jere N. Williams. The Land Mortgage, Investment & Agency Company of America, Limited, filed the bill in this case on February 2, 1892, against the appellees, to foreclose a mortgage, which was executed to the complainant by Mark S. Vinson and his wife, Roxy Vinson.

Tried before the Hon. John R. Tyson. The appellant, D. J. Mash, obtained a judgment against one Isam Boan in a court of a justice of the peace of Butler county. An execution was issued on said judgment . and was levied upon certain personal property, as the property of the said Boan.

Tried before the Hon. John P. Hubbard. This was an action brought by the appellants, Bayzer & Shepherd, against the appellee, the McMillan Mill. Company. The complaint seeks a recovery of damages from the-defendant, for having obstructed Pigeon Creek, a fresh water stream, running through portions of Butler, Covington and Conecuh counties in this State, and emptying, as the proof shows, into Sepulga river.

Tried before the Hon. John R. Tyson. This was a statutory real action in the nature of ejectment, and was brought by the appellee, R. M. Nelson, against the appellants, J. M. Jinwright and others, to recover the possession of certain lands specifically described in the complaint.

Heard before the Hon. Thomas M. Arrington. This was a proceeding in the nature of quo warranto, instituted by the appellee, The State on the relation of Gordon Macdonald, to vacate and annul the charter of the appellant, the Capital City Water Company. The averments of the petition or complaint, and the prayer thereof are sufficiently stated in the opinion.

Tried before the Hon. Jere N. Williams. The bill in this case was filed on January 9, 1892, by the appellee, Ida V. Lee, against the appellant, W. H. Moore, to enforce a vendor’s lien on certain property sold to the respondent.

Heard before the Hon. Thomas M. Arrington. The bill in this case was filed by the appellee, Ella A. Sayre, to have cancelled and set aside a deed of conveyanee of her land, executed by herself and her husband, Calvin Sayre, to .Hubbard, Price & Co., on the ground that the consideration of the deed was a gambling debt contracted by her husband, Calvin Sayre. Hubbard, Price & Co. and Calvin Sayre were made parties to the bill.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on February 4, 1892, by the appellee, George Kirk, against the appellant, E. R. Reynolds, and Willis C. Stephens, to remove a cloud from the title of the complainant to certain lands. The bill averred that on January 5, 1888, the complainant, George Kirk purchased from Willis 0.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on December 31, 1889, by the appellant, S. J. Porter, against Joseph Wheeler, individually, and as the administrator of the estate of Thomas H. Jones, deceased, and Ella Wheeler, the wife of Joseph Wheeler ; and prayed to have the title of complainant to certain described lands quieted, and a mortgage which was held by Thomas H. Jones during his life time upon certain described lands cancelled as a cloud…

Heard before the Hon. S. K. McSpadden. The bill in this case was filed on April 2, 1891, by the appellees, as the heirs-at-law and distributees of William M. Ligón,deceased, against Rebecca A. Ligón, as former administratrix of the estate of William M. Ligón, deceased, and W. R. Hunnicutt and J. F. Morgan, the sureties on her administration bond.

Heard before the Hon. Thomas Cobbs. The facts of the case are sufficiently stated in the opinion. 1. The jurisdiction of the probate court having attached, every question necessary to authorize the sale has been- judicially determined — the existence of a valid debt, the want of personal assets, and due proof of these facts, have all been adjudicated.

Heard before the Hon, H. A. Sharpe. The bill in this case was filed by the appellee, the Elyton Land Company, against the appellant, Norman Webb, to have a deed executed to the respondent by W. W. Brown set aside and vacated as a cloud upon the title of complainant to certain described lands. The facts of the case are sufficiently stated in the opinion.

Heard before the Hon. Thomas M. Arrington . The appellee, H. H. Matthews, as clerk of the city court of Montgomery, filed a petition, addressed to the judge of the city court of Montgomery, in which he averred that on December 9, 1893, one Hillard Smith was duly convicted of murder in the first degree in the city court of Montgomery, and sentenced to be hanged ; that afterwards, on July 14, 1894, after the affirmance of the judgment by the Supreme Court, the sentence of…

Tried before the Hon. H. C. Speake. This action was brought by Jack J. Jeffreys against R. G. Malone and others, sureties on the official bond of James M. Jordan, as probate judge of Franklin county.

Tried before the Hon. W. H. Simpson. The facts of the case a.re sufficiently stated in the opinion. The evidence of damage in this case was full, complete and certain, and the defendants’ plea of recoupment should have been sustained.. Bell v. Reynolds, 78 Ala. 511 ; Mudge v. Treat, 57 Ala. 1. The case of Reed Lumber Go. v. Lewis, 94 Ala. 627, is not applicable to the facts of this case.

Tried before the Hon. W. P. Chitwood. The appellees, T. J. Morris & Co., brought the present action against the appellant, the Commercial Fire Insurance Company, to recover damages sustained by the plaintiffs by reason of the destruction of their stock of goods by fire.

Tried before the Hon. W. W. Wilkerson. This cause was tried by the court without the intervention of a jury. Upon the hearing of all the evidence, there was judgment rendered for the plaintiff assessing her damages at $250. The facts of the case are sufficiently stated in the opinion. The defendant appeals, and assigns as error the overruling of the demurrer to the complaint, and the rendition of judgment for the plaintiff.

Tried before the Hon. Thomas M. Arrington . This was an action on the case, brought by the appellant against the appellees. The facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence, the- court at the request of the defendants gave the general affirmative charge in their favor, to the giving of which the plaintiff duly excepted.

Tried before the Hon. H. C. Speake. On June 10, 1893, the appellant, W. J. Belser, brought suit against the appellees, the Tuscumbia Banking Company and Hinton E. Carr, to recover an amount alleged to be due by account, and for money had and received by the defendant. On August 11, 1893, an ancillary garnishment was issued at the instance of the plaintiff and served upon Stanley Brothers.

Tried before the Hon. Jesse M. Carmichael. This action was brought by the appellee, B. L. Guice, against the appellant, Robert Buist, Jr., to recover damages for the alleged breach of a contract, by which the latter agreed to sell and deliver to the plaintiff two hundred and fifty barrels of Irish notatoes. The facts of the case are identical with those disclosed on the former appeal of this case, and reported in 96 Alabama 255.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the appellant against the appellees, to correct a misdescription of lands conveyed by respondents in a mortgage to the complainant. The facts of the case are sufficiently stated in the opinion.

. Heard before the Hon. Thomas Cobbs. The bill in this case was filed on April 20,1892, by H. P. H. P. Heflin, as administrator of the estate of John T.Heflin ,deceased,against Catherine McAnally,to enforce a vendor’s lien on lands sold by respondent to complainant’s intestate.

Tried before the Hon. John H. Disque. This was a statutory action of ejectment, brought, by the appellee, Florence Fairbanks, against the appellant, M. H. Wagnon,on March 17, 1893, to recover the possession of the S. of the N. W. i, and the N. E. i of the N. W. i, and the N. W.'i of the N. E. ¿ of section 20, township 11, range 8, E. The defendant pleaded the general issue, and statute of limitations, and filed a plea of disclaimer as to a portion of the property sued for.

Tried before the Hon. John B. Tally. This action was brought by the appellee, The Huntsville Fertilizer & Milling Company, against the appellant, Joshua F. Kirby; and counted on a promissory note executed by the defendant to the plaintiff. The defense interposed is shown in the opinion.

Heard before the Hon. Jebe N. Williams. The bill in this case was filed on July 23, 1892, by James Ross and C. R. Ross, as partners, doing business under the firm name of Ross & Company, against Charles L. Perry and wife.

Tried before the Hon. H. C. Speake. This was an action brought on January 31, 1890, by the appellees, Howard Brothers, against the appellant, John Holland, to recover compensation for services alleged to have been rendered by plaintiffs to defendant in the negotiation of a sale of a certain tract of land. Upon the overruling of defendant’s demurrer to the complaint, the defendant pleaded the general issue, and issue was joined thereon.

Tried before the Hon. H. A. Sharpe. ■ The facts of the case are sufficiently stated in the opinion. There are two distinct, legitimate objects of the attachment law. (a.) To take and hold defendant’s property till judgment can be obtained condemning it. (b.) To bring non-resident defendants into court that personal judgment may be rendered. — Decatur & Nashville Imp.

Tried before the Hon. John R. Tyson. The facts of this case, pertaining to the only question reviewed on this appeal, are sufficiently stated in the opinion. Upon the introduction of all the evidence, the court refused to give the general' affirmative charge requested by the plaintiff, and gave at the request of the defendant, the general affirmative charge in his behalf. To each of these ruling the plaintiff separately excepted.

■ Appeal from the Circuit Court of Marengo. Tried before the Hon. James T. Jones. This was a statutory trial of the right to property, which was instituted by the appellee, Morris Ely, interposing a claim to a stock of goods, which had been levied upon on February 10, 1893, under a writ of attachment issued on the same day at the suit of Bray & •Landrum against Sol Elkan. The ground of the attachment was that Elkan, the defendant, had fraudulently disposed of his goods.

Tried before the Hon. Jesse M. Carmichael. ■ The appellees, B. Scheuer & Brother, brought a statutory action of ejectment against the appellant, J. W. King, to recover certain property specifically described in complaint. There is but one question presented on this appeal, Avhich is as to the admissibility of a certified copy of a deed taken from the records of the office of the probate judge.

Tried before the Hon. H. C. Speake. This action was brought by the appellee, Cicero Woods, against the Louisville & Nashville Railroad Company on March 25, 1893, to recover damages for personal injuries, alleged to have been caused by the negligence of the defendant and its employes.

Tried before the Hon. S. F. Baber. The appeal in this case is taken by the defendant in the court below from a judgment rendered against him ; and he assigns as error, among other rulings, that the court erred in the refusal to give the general affirmative charge at his request. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. James J. Banks. This was an action by Effie May Smith and her husband, John 1. Smith, against Perryman & Company, to recover the statutory penalty, as provided under section 1868 of the Code,, for the failure to enter a partial payment on the margin of the record of a mortgage.

John R. Tyson. The facts of the case aré sufficiently stated in the opinion. The answer in this ' ease shows that the suit was pending against the county on the claim involved in the present action, and this fact is fatal to the relief prayed for by the petitioner. — State v. North Lincoln St. R. Go., 34Neb. 634; State v. Matley, 17 Neb. 564; People v. Chicago, 53 111. 424; People v. Warefield, 20 111. 165; People v. Wiant, 48 111. 268.

Tried before the Hon. John R. Tyson. The appellees, T. A. Collier & Company, brought a statutory action of detinue against the appellant, D. C. Rotten, to recover certain personal property described in the complaint.

Tried before the Hon. William L. Stephens. This was an action brought by the appellee, H. J. Jacoway, against the appellant, W. J. McMahan; and counted on a promissory note or due bill. The facts of the case are sufficiently stated in the opinion. The cause was tried by the court without the intervention of a jury, and judgment was rendered for the plaintiff. The appeal is prosecuted by the defendant, who assigns as error this judgment of the trial court.

Tried before the Hon. James W. Lapsley. The First National Bank of Gadsden, for the use of Thomas L. Johnson, brought an action against B. T. Pinson, as principal, and D. C. Savage and J. H. Savage as sureties on a forthcoming bond, to recover damages for the breach of the conditions of said bond; the amount of damages claimed being $110.

Heard before the Hon. Price Williams, Jr. The appellants, A. Kling and other sureties on the official bond of Joseph Espalla, Jr., the general administrator of Mobile county, filed their petition in the probate court, and asked that certain executions issued against them in favor of the appellees, E. C. Connell and others, heirs of Mrs. E. B. Rupert, be quashed.

Tried before the Hon. John B. Tally. This -was an action of assumpsit, brought by the appellant, Mike E. Looney, against Jackson county. The ground of the plaintiff’s claim and the facts in reference to the presentation of such to the court of county commissioners are sufficiently stated in the opinion.

Tried before the Hon. S. H. Sprott. This action was brought by the appellee, Beatrice Hall, as administratrix of estate of Marcellus N. Hall, deceased, against the Alabama Great Southern Railroad Company, to recover damages for the alleged negligence of the defendant, which resulted in the death of plaintiff's intestate. The complaint, as originally filed, contained four counts.

Tried before the Hon. Thomas Cobbs. The orginal bill in this case was filed by 1he appellants, Burghard Steiner and Sol Levi, against the appellees, Robert Scholze and others. The facts of case, as set forth in the original bill, are sufficiently shown in the report of the case, when before the court on a former appeal, and reported in 100 Ala. 149.

Tried before the Hon. Jesse M. Carmichael. This was a statutory action of ejectment, brought by-Ella E. Daughtry against Mildred I. Thweatt. Issue was joined on the plea of the general issue. The facts showing the claims and the titles upon which the plaintiff and the defendant, respectively, based their right to the lands sued on are sufficiently stated in the opinion.

<p> Contest of Claim of Exemption. </p> <p>1. Exemption; order disallowing claim will support an, appeal ■ — There is no necessary interdependence between a judgment in the original case and the judgment of condemnation or disallowance in respect of a claim of exemption to property sought to be condemned under that judgment in the original suit; and where after a judgment by default against a defendant and a judgment nisi against a garnishee, who subsequently answers admitting indebtedness, the defendant interposes a claim of exemptions to the money due from the garnishee to him, and the claim is disallowed and a j udgment of condemnation is rendered against the garnishee, an appeal will lie from the judgment of condemnation, (Code, § 2526), without regard to the original suit and the judgment therein ; it not being necessary in order to support the appeal that it should be of the entire cause of action.</p>

Heard before the Hon. John W. Bishop. The bill in this case was filed by the appellees against the appellants. The averments of the bill and the relief sought are sufficiently stated in the opinion. The appeal is taken from the decree of the city court overruling the demurrers of the respondent to the bill. 1. There was a misjoinder of parties complainant. — Story’s Eq. Pleading, § 161 and note ; 4 Amer. & Eng. Encyc. of Law, 574.

Tried before the Hon. James J. Banks. The appellants brought an action of assumpsit against the appellee corporation, to recover a month’s rent, alleged to have been due by a parol contract. The facts of the-case are sufficiently stated in the opinion. The cause was tried without the intervention of a jury, and upon the hearing of all the evidence, the court rendered judgment for the defendant. The plaintiffs appeal, and assign the rendition of this judgment as error. 1.

Tried before the Hon. John B. Tally. Smart Brothers recovered a judgment against George R. Hodges and Frank Bishop in the circuit eourt of Jackson county. Upon this judgment execution was issued, and levied upon a stock of goods which was in the possession of George R. Hodges. Upon the levy of this execution on the said property, R. J. Hodges interposed a claim thereto, and issue was formed for the trial of the right to such property.

Heard before the Hon. S. K. McSpadden. The bill in this case was filed by the appellees against the appellant, for an injunction to restrain a sale of certain lands under an order of the probate court for partition among the complainants and the respondent. The averments of the bill are sufficiently stated in the opinion. Upon the issuance of an injunction, the respondent moved to dissolve the injunction 'for the want of equity in the bill.

Heard before the Hon. S. K. McSpadden. The bill in this case was filed on July 31, 1893, by the appellee against the appellants, to forclose a mortgage. The averments of the bill are sufficiently stated in the opinion. The respondents, John and Louise Brisser, demurred to the bill upon the following grounds : “1. Because there is a misjoinder of parties defendant to said bill; the said Louise Brisser being improperly made a defendant. 2.

Tried before the Hon. J. M. White, Special Judge. G. M. Williamson, the appellant, brought an action against the appellee, J. R. Tyson, upon a note which was given by the said J. R. Tyson to plaintiff on September 30, 1890, for the deferred payment on a lot purchased by him. The defendant pleaded two special pleas.

Tried before the Hon. W. W. Wilkkrson. The appeal in this case is taken by the Hawkins Lumber Company, who were plaintiffs in the court below, in a suit against John W. Bray from a judgment rendered in behalf of the defendant; and the rendition of this judgment is the only error assigned. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. Jesse M. Carmichael. John T. Davis & Son, appellees, brought a statutory action of ejectment against the appellants, Pauline McNeil and her husband, Daniel McNeil, to recover certain property described in the complaint.

City Court of Gadsden. Tried before the Hon. John H. Disque. This action was brought by the appellee, E. A. Bramlett, as administrator cum annexo testamento, against Lewis Harris, to recover rent. William H. Hood, as administrator- of Louisa Garrett, was substituted as defendant. The facts of the case are sufficiently stated in the opinion. The cause was tried by the court without the intervention of a jury, and judgment was rendered for the plaintiff.

<p>Appeal from the Chancery Court of Jefferson.</p> <p>Heard before the Hon. Thomas Cobbs.</p> <p>The facts of the case are sufficiently stated in the opinion.</p>

Tried before the Hon. James T. Jones. Louis Lowenstein, one of the members of the firm of Lowenstein Brothers, made an affidavit for an attachment against W. R. Martin, before O. J. Semmes, judge of the city court of Mobile, on November 19, 1892 ; and upon giving bond, the writ of attachment was issued by O. J. Semmes, as judge of the city court of Mobile, and made returnable to the circuit court of Choctaw county.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the appellant, H. J. Heinz, against the appellees, John F. White, George White and Jennie G. White. The purpose of the bill and its averments are sufficiently stated in the opinion. The respondents demurred to the bill, assigning in various ways the want of equity in said bill, and the inconsistency of the facts averred therein. Their demurrer was sustained.