Volume 106 — Alabama Reports

Clair. Tried before the Hon. Leroy F. Box. The appellant, William C. Karr, was indicted for the murder of one Jason Smith and was convicted of murder in the second degree, and sentenced to the penitentiary for twelve years. Upon the trial of the case, as is shown by the bill of exceptions, the evidence for the State tended to show that at the time of the shooting, the defendant and his father, John.

Tried before the Hon. W. P. Chitwood. The appellant was indicted and tried for the murder of one Will Harris, and was convicted of murder in the first degree,' and sentenced to the penitentiary for life.

Tried before the Hon. O. J. Sbmmes. The appellant was indicted for the murder of Prank Atkinson, was tried and convicted of manslaughter in the first degree, and sentenced to the penitentiary for ten years. The facts of the case are substantially the same as they were when the case was here on former appeal, and reported in the 103 Ala.. 18.

Tried before the Hon. O. J. Sbmmes. The appellants, James Wilkinson and Daniel Wilkinson, were indicted and tried for the murder of Edward Chastang, and were convicted of murder in the first degree and sentenced to the penitentiary for life. The rulings of the court upon the motion to quash the venire are sufficiently shown in the opinion.

Tried before the Hon. H. C. Speaice . The appellant, John B. Whitaker, was indicted, and tried for the killing of “Bat” Whitaker, and was convicted of manslaughter in the first degree and sentenced to imprisonment in the penitentary for two years. At the time of the killing, there were a number of people at a certain- church in Madison county, for the purpose of attending a singing school.

Tried before the Hon. W. P. Chitwood. The facts of the case are sufficiently stated in the opinion. — The statute, for the violation of which the appellant was indicted and tried, provides imprisonment for debt as a punishment for crime, and is, therefore, unconstitutional. — Ex parte Hardy, 68 Ala. 303; 10 Amer. & Eng. Encyc. of Law, 212. cited Carr v. State, 101 Ala. 4; Carr v. State, 104 Ala, 43.

Tried before the Hon. Samuel E. Gkeene. The appellant, Thomas Hooper, was indicted, tried and convicted of rape ; and sentenced to the penitentiary for life. The female upon whom the defendant was accused and convicted of having committed the rape was his own daughter, who was fourteen years of age.

Tried before the Hon. John Moore. The appellant, Julia Gregg, was indicted jointly with Nancy Gregg for infanticide. Nancy Gregg was acquitted, and Julia Gregg ■ was convicted of murder in the second degree, and sentenced to the penitentary for ten years. The facts pertaining to the questions reviewed on this appeal are sufficiently stated in the opinion.

Montgomery. Tried before the Hon. Thomas M. Arrington. The appellant, Trance Singleton, was jointly indicted with Coleman Scott and Bill Williams for the murder of one Meredith Sledge, was tried separately and convicted of murder in the second degree, and sentenced to the penitentiary for 15 years.

Tried before the Hon. 0. J. Semmes. The appellant was indicted, tried and convicted for grand larceny. The testimony for the State tended to show that the defendant was guilty as charged. The testimony for the defendant tended to show that he did not intend 'to steal the calf, for the larceny of which he was charged; but that he carried it to the market and sold it at the request of the -owner’s son. There was also evidence that the defendant had a good character for honesty.

Tried before the Hou. O. J. Semmes. The appellant was indicted, tried and convicted of larceny of coal from a car, and was sentenced to the penitentiary for two years.

Tried before the lion. Thomas M. Arrington. The appellant was indicted, tried and convicted for failure to assist an officer in making an arrest.

Tried before the Hon. John R. Tyson. The appellants, Robert Thompson and Napoleon Thompson, were jointly indicted for a conspiracy to rob, and were tried and convicted and fined two hundred dollars, each. The two counts of the indictment are copied in the-opinion.. The State elected to prosecute for the offense • charged in the first count of the indictment.

<p> Application for Mandamus. </p> <p>1. Amendments; limitations of right of plaintiff to amend complaint.— The only limitations upon the right of the plaintiff in a civil action at law to amend his complaint, at any time before the cause is finally submitted to the jury, and they have retired, are, that the form of action must not be changed; there must not be an entire change of parties; and there can not be the substitution or introduction of an entirely new cause of action.</p> <p>2. Same; when no new cause of action is alleged. — In an action to recover damages for the alleged breach of a certain article of a contract, entered into between the plaintiff and a common carrier, in which the defendant agreed to transport freight at specified rates, the complaint alleged overcharges of freight for transportation undertaken and completed under said article of the contract, which specified the rates to be charged, setting out said article in haec verba, with the exception of the clause therein contained, that the rates were applicable to “not less than twenty car loads when shipped on the main track,” the omission of these words being on the theory that the stipulation evinced by them had, on the facts averred in the complaint, been waived by the defendant in accepting for transportation under the contract shipments in less than twenty car load lots. There was an amendment to the complaint which set out the said article in full, including the clause omitted from said article as contained in the original complaint, and set out the terms of the contract sued upon more accurately than had the complaint, and averred the several, breaches therein complained of sufficiently, which was not done in the original complaint, but at the same time claimed damages only for the several breaches of that contract, as claimed in the original complaint. Held: there is the introduction of no new cause of action, and the amendment should be allowed; the cause of action stated in both the original and amended complaints being in effect, that the defendant had charged and collected, on numerous occasions, from the plaintiff compensation for the transportation of freights in excess of the rates at which it had agreed in the contract to transport such freight.</p>

Heard before tlie Hon. S. P. Baber. The proceedings in this case were had upon a petition filed in the probate court of Cleburne county by George W. Hall, to have the last will and testament of Mrs. LucindaR. Jenkins probated. The appellants,, as next of kin and heirs-at-law of the testatrix, contested the probate of the will.

Simon Jacobs of Marshall county, died, leaving a last will and testament, on January 30, 1864. On March 16, 1864, James H. Moore was appointed liis administrator with will annexed, and gave bond in the sum of $12,000, with Albert G. Henry and William H. Wiggs as his sureties. Said Moore, as administrator, received large sums of money and other property belonging to said astate, all of which he wasted and converted to Iris own use.

Tried before the Hon. N. D. Benson. The appellant was tried and convicted under the following indictment: “The grand jury of said county charge that, before the finding of this indictment, William Hoadley did falsely pretend to William M. Wilson, with intent to defraud, that he owned the south-east quarter of the north-west quarter of section twelve, township twenty-three, range thirteen in said county and State, and by means of such false pretense obtained from the said…

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on August 12, 1890, by M. T. Smith, Daniel Brennan, George S. O’Bear, Jr., E. Eastman and John M. Thompson, the appellees in this court, against the individual members of the firm of E. S. Jaffray & Co., Sylvester, Hilton & Co., Sweetser, Pembrook & Go., The Troy Manufacturing Co., J. B. Lewis, J. M. Conway & Co., and certain attorneys at Birmingham, Alabama, as representatives of the defendant firms, and D.…

Heard before the Hon. William H. Tayloe. This was a suit in the court of chancery of Mobile county, commenced by the appellant against the appellee, seeking to enforce the specific performance of an alleged contract to furnish water as the motive power to run a grist mill for appellant for three years, and longer at appellant’s option, and to enjoin the defendant from abandoning the alleged contract.

Tried before the Hon. N. D. Denson. This was a statutory real action in the nature of ejectment, brought by the appellee, P. M. Moore, as the administrator of the estate of William Walker, deceased, against the appellants, the. heirs at law of said William Walker, deceased; and sought to recover certain lands .specifically described in the complaint.

Tried before the Hon. Thomas M. Arrington. . The indictment against the defendant was found under section 3812 of the Criminal Code of 1886, charging the defendant with obtaining seven 50-100 dollars in money, and was presented in open court on March 2, 1894.

Heard before the Hon. Thomas M. Arrington. On the 18th day of February, 1893, Townsend & Brown, judgment creditors of the Cloverclale Land & Development Company, and holders of a large number of its bonds, which were secured by a deed of trust upon all of its property, including certain lands, filed their bill in the city court of Montgomery, in equity, in behalf of themselves and all other creditors of said company, praying for the appointment of a receiver to operate the…

Mobile. Heard before the Hon. Price Williams, Jr. This was a proceeding commenced by a petition to the probate court of Mobile county, filed by Mathew L. Davis, seeking to have letters of administration granted upon the estate of Rudolph Miller, deceased, to the appellee, Sarah M. Miller, revoked.

Arpeax. from the Circuit Court of Colbert. Tried before the Hon. H. C. Spxoakm. This was an action brought by the appellant, Mary T» White, against the appellee, Albert Breen, to recover damages for the alleged'breach of a contract of sale of certain lots. The material facts of the case are sufficiently stated in the opinion. After the introduction of the letters constituting the correspondence between the defendant-.

Heard before the Hon. S. K. McSpadden. The bill in this case was filed on December 1, 1893, by the appellee, J. T. Ford, against the appellant, I. W. Andrews, as assignee, and the sureties on his bond.

Tried before the Hon. John R. Tyson. The appellant was tried upon the following indictment : “The grand jury of said county charge that before the finding of this indictment, Dave Bowen, with intent to steal, broke into and entered the dwelling house of Israel Robertson, and did feloniously take and carry away fro’m the dwelling house of Israel Robertson four five dollar bills, commonly known and called greenbacks, of the paper currency of the United States of the value of…

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the appellee, Eugene F. Enslen, .against the appellants, Triest & Company, to enjoin the respondents, their agents or attorneys, from enforcing two executions issued against the complainant, who was one of the sureties on two separate claim bonds.

Tried before the Hon. O. J. Semmes. The appellant, E. L. Stafford, sued the appellee, Origeu Sibley, for an amount due “for work and labor done-by the plaintiff for the defendant on'and before, to-wit, the 24th day of October, 1892, át his request.” The defendant demurred to the complaint, on the ground that it does not show a cause of action, since it does not allege whether the request for the work and labor dono was made by the defendant verbally or in writing, and “while…

Heard before the Hon. William H. Tayloe. The bill in this case was filed by the appellant, P. A. Tutwiler, against the appellees. The facts of the case, as shown on the present appeal, are the same as those disclosed on the former appeal, aud found reported in 98 Ala. 129. After the remandment of the cause, the complainant sought to amend his bill by averring therein the adverse holding by the complainant of the lands involved in the suit.

Tried before the Hon. H. A. Sharpe . The facts of the case are sufficiently stated in the opinion. — 1.

Abraliam Charles brought an action against it. S. Hayes and H. M. Comer, as receivers of the Montgomery and Eufaula Railroad Company, a corporation, to recover damages for the alleged negligent killing of plaintiff's mule.

EÍeard before the Hon. W. W. Wilkerson. The facts of the case are sufficiently stated in the opinion. 1. The bill is not single in its object; and the parties defendant are sued on not joint but several accounts. The bill embraces two or more distinct subjects; it contains several distinct grounds of suits in equity, and is, therefore, bad for multifariousness. — 1 Daniel Ch. Prac., 334, note 1; American R. & C. Co. v. Linn, 93 Ala. 610 ; 3 Brick.

Tried before the Hon. Jesse M. Carmichael. This was a suit brought by the appellee, A. H. Spira, against the town of Brewton, to recover an amount alleged to be due upon two interest coupons of municipal bonds, alleged to have been issued by the defendant. The facts of the case are sufficiently stated in the opinion.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the appellees on the 8th day of December, 1893. It seeks to have set aside as fraudulent two certain deeds made by the defendant,' A. Ewing Echols, to his wife and co-defendant, Daisy Echols, on, respectively, the 1st day of June, 1893, and 10th day of June, 1893, both of said deeds having been filed for record in the probate court of Madison county on the 3d day of July, 1893.

Heard before the Hon. William H. Tayloe. The bill in this case was filed by the appellants, Daniel P. Bestor, Charles L. Huger and John F. Taylor, against the appellees, James W. Lapsley, Osborne H. Parker, Oscar E. Smith and William Stringfellow, executors of the last will and testament of Duncan T. Parker, and P. D. Barker.

Tried before the Hon. James J. Banks. The facts of the case are sufficiently stated in the opinion. — The court is at liberty to review the conclusions of the trial court upon the evidence. The rulings on the demurrer and the final judgment are never necessary to be stated in the bill of exceptions.

Tried before the Hon, John R. Tyson. • This was a statutory action of detinue, brought by the appellants, Winter & Loeb, against the appellee, Elias Judkins. The facts of the case are sufficiently stated in the opinion. There was judgment for the defendant. The plaintiffs appeal, and assign as error the ruling of the court in excluding from the evidence the note and mortgage to Leon Loeb, and the judgment of the court in overruling the motion for a new trial.

Tried before the Hon. James T. Jones. The appellant, plaintiff below, sued James Kirby, the appellee, in an action of ejectment, to recover 80 acres of land. Four pleas were interposed, the first was the general issue, and the second, third and fourth, the statute of limitations of one, three and ten years, respectively, pleaded in short.

' Tried before the Hon. N. D. Denson. This was a statutory trial of the right of property which was inaugurated by the appellees, J. G. Lindsey and J. F. Moore, interposing a claim to property levied upon under a writ of attachment, issued at the instance of the appellees, Teague, Barnett & Company, against Lindsey & Moore, a partnership composed of W. J. Lindsey and A. L. Moore.

Heard before the Hon. William H. Tayloe. Charles P. DeYampert filed the bill in this case against J. K. Graham and Cliauncey Graham, executors of the last will and testament of M. Louise Kenan, for the purpose of having construed the twelfth item of the will of Mrs. Kenan, and a'provision of a codicil of her said will. Both the item and the provision of the codicil, which are asked to be construed, are copied in the opinion.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed April 18, 1892, by the appellant, the Moore & Handley Hardware Company, against the appellees, B. J. Curry, the Curry Manufacturing Company, and the assignee of the last named company ; and prayed to have the respondent B. J. Curry enjoined from selling the property of the Curry Manufacturing Company under a decree foreclosing a mortgage executed to him by said company on May 1, 1890b The facts of the caso…

Tried before the Hon. W. H. Simpson. This was an action,of tort brought by the appellant, Lyman Lampkin, against the appellee, the Louisville & Nashville Railroad Company, to recover damages for an alleged breach of duty to plaintiff by reason of an alleged assault committed upon plaintiff by one of the defendant’s brakmen, while the plaintiff was a passenger upon one of the defendant’s passenger trains.

Tried before the PI on. William H. Parks. Upon a judgment confessed in the criminal court of Pike county, in the case of the State v. Andrew Carlisle, with J. D. Lassiter and J. J. Whitehead as sureties, an execution was issued from the said criminal court of Pike county and levied by the sheriff upon certain property, as the property of J. D. Lassiter, one of said sureties.

Tried before the Hon. W. W. Wilkerson. The appellants, J. D. Crossthwaite and James A. Mitchell, rented a room on the second floor of a building known in the city of Birmingham as the Office Building, and owned by the appellees, H. M. Caldwell and P. L. Mynatt, for one year, from October 1st, 1891, to - Sep-, tember 30, 1892. The contract price for the rent of the room was 815 per month.

Heard before the Hon. S. K. McSpadden. The facts of the case are sufficiently stated in the opinion. cited Smith v. Smith, 102 Ala. 516; Wharton v. Clements, 3 Del. Chan. Rep. 209 ; 8 Amer. Law Reports, 299 ; Dollins v. Lindsey, 89 Ala. 217; Randle v. Boyd, 73 Ala. 282. — 1.

Tried before the Hon. John R. Tyson. This was a contest of a claim of exemptions, which was instituted as follows : At the fall term, 1893, of the circuit court of Geneva county, M. L. Metcalf recovered a judgment against W. W. Smith, which was recorded in the office of the judge of probate for said county. Upon said judgment an execution was issued on June 15,1894, and levied by the sheriff upon certain described lands, owned by the said W. W. Smith.

Tried before the Hon. N. D. Denson. This action was brought by the appellee, Annie E. Buford, against the Savannah, Americus & Montgomery Railway, to recover damages for injury to the plaintiff's land, by reason of the overflow of surface water thereon, which was alleged to have been caused by the construction by the defendant of its railway, across the plaintiff’s- land; and the suit was instituted on August 12,1892.

Heard before the Hon. T. H. Davidson. This was a proceeding to. probate the will of W. H. Higginbotham, in the probate court of Blount county, Alabama, which was propouncledSor probate by the appellants, A. L. Higginbotham and Pinckney W. Higginbotham, Who were the sons of the deceased, and the executors named in the will, and who were also devisees under said will. The contestant was Kittie Higginbotham, the appellee, who was the daughter of the deceased.

Tried before the Hon. N. D. Denson. This was an action of detinue, brought by the appellee, J. J. Tucker, against the appellant, Thomas J. Stewart, and sought to recover one hundred bushels of corn. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. T. R. Matthews, Special Judge. The questions in both of these causes being the same, they are submitted together on the present appeal. The' proceedings were instituted by motions in the case of Anniston Pipe Works y. W. H. Williams, on the common law side of the docket of the Anniston city court.

Tried before the Hon. James J. Banks. This action was brought originally by J. T. Jones against the appellants, Weedon & Dent, and their sureties on an attachment bond. The complaint alleged the execution by the defendants of an attachment bond, payable to the plaintiff, J. T. Jones and one Lizzie Horton, which was executed upon the defendants, Weedon & Dent, suing out a writ of attachment against J. T. Jones and Lizzie Horton, for the collection of rent.

Tried before the Hon. James J. Banks. This action was .brought by the appellant, Mrs. Bettie H. Prince, against The Alabama State Fair, a corporation, to recover one hundred dollars damages for the conversion of a picture painted and owned by the plaintiff. The action was originally commenced in a justice of the peace court. Upon judgment being rendered for the plaintiff for one hundred dollars, the defendant appealed from said judgment to the circuit court.

Apbbal from the Chancery Court of Jefferson. Heard before the-Hon. Thomas Cobbs. The facts of the case are sufficiently stated in the opinion. — Courts of equity do not grant the high remedy of reformation upon a probability, nor upon a mere preponderance of evidence, but only upon a certainty of the error. — Pomeroy’s Eq. Jur.

Heard before the Hon. Thomas M.- Akrinuton. The bill in this cause was filed on September 12, 1894, by the heirs — mother, sister and brothers — of Archie O’Brien, Jr., deceased, against Levystein Bros., and avers the following facts : That about the 28th of April, 1894, Levystein Bros, obtained a judgment against the said Archie O’Brien, Jr., in a justice of the peace court of Montgomery county, upon which an execution was duly issued and levied upon the interest of said…

Heard before the Hon. James W. Lapslby. On March 2d, 1891, the First National Bank of Anniston and S. E. Noble filed their bill on the equity side of the oity court of Anniston against the Anniston Pipe Works and the State Trust Company, for themselves as judgment creditors of the Anniston Pipe Works, and in behalf of all other creditors of the Anniston Pipe Works, who might come in and unite in the suit and share in the expenses thereof.

Tried before the Hon. W. P. Chitwood. The facts of the case are sufficiently stated in the opinion. — 1.

Tried before the Hon. H. C. Speake. This action was brought by the appellees against the appellant, to recover the statutory penalty for a failure for three months, after written request, to mark a mortgage satisfied on the record.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on May 16, 1892, by the Huntsville Gas Light Co'., the appellee, against the appellants, Robert E. Coxe and Macgrane Coxe. The averments of the bill, and the purposes for which It was filed, are sufficiently stated in the opinion.

Tried before the Hon. Tames J. Banks. This was an action of assumpsit brought by the appellee, the Southern Automatic Electric Shock Machine Company, against the appellant, D. U. Kennebrew. The facts of the case are sufficiently stated in the opinion. There was judgment for plaintiff.

Heard before the Hon. W. H. Tayloe. The bill in this case was filed by the appellee, Ada H. Sumner, against the appellant, Mairie W. Hairston, executrix, and others, on July 31, 1893, and prayed for a partition of certain lands, and for an accounting 'of rents. The bill was demurred to on the ground, among others, that the claims of the complainant were barred by the statute of limitations of three years. The chancellor overruled this demurrer interposed by the respondents.

Tried before the Hon Jesse M. Carmichael. The complaint as originally filed did not aver facts showing that the plaintiff had suffered any damage from the neglect of the defendant bank to present the check on the day it was given. The defendant demurred to the complaint upon this ground, which demurrer was sustained.

Tried before the Hon. Samuel H. Sprott. This was a statutory action of ejectment, brought by the appellee, M. L. Stansel, against the appellants, Bennett M. Lang and Sallie E. Lang, to recover certain lands, which were specifically described in the complaint.

Tried before thePIon. James J. Banks. This was an action brought on December 31, 1891, by the appellee, George Patterson, against the appellants, Louis T. Bradfield, J. B. Morson and Robert L. Houston, partners, doing business under the firm name of Bradfield, Morson & Co. The complaint contained five counts.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on December 15, 1892, by the appellees, as creditors of B. R. Williams & Sons.

William W. Wililerson. The bill in this case was filed by the appellants as creditors of B. F. Perkins against said B’. F. Perkins and his wife] Ella G. Perkins ; and sought to have certain conveyances from B. F. Perkins to his wife set aside as fraudulent, and the property conveyed therein and other property described in the bill subjected to the payment of the debts of the complainants. The facts of the case are sufficiently stated in the opinion.

Heard before the Hon. W. H. Tayloe: The bill in this case was filed on October 26, 1891, by the appellees, Thomas Hill and Mary Gayles, by their next friend Herbert Hill, and Martha Hutchinson. The bill, as amended, averred the following facts:. That.

Tried before the Hon. James T. Jones. The appellant brought an action against William H. Gasque, as probate judge of Baldwin county, to recover the statutory penalty of two hundred dollars for issuing a license of marriage to his (plaintiff’s) daughter, who was a minor under 18 years of age, without having obtained the consent of the plaintiff for issuing said license.

Tried before the Hon. John B. Tally. This was a statutory action in the nature of ejectment, brought by the appellant, Sarah Bynum, against the appellee,’William A. Gold and R. A. Coffey, Jr., to recover the possession of certain lands specifically described in the complaint. The only plea was that of the general issue of “not guilty,” and upon this plea issue was joined. The plaintiff introduced in evidence a deed which was executed to her by one IT.

Heard before the Hon. Thomas Cobbs. The facts of the case are sufficiently stated in the opinion. — 1. The chancery court has the unquestioned power and authority to enforce its decrees by attachment.— Code, §§ 722, 3598, 3601; 2 Daniel Chan. PI. & Prac., 1032, 1046; 3 Amer. & Eng. Encyc. of Law, 791; Ex parte John Hardy, 68 Ala. 306. 2.

olbert. Tried before the Hon. H. C. Speaice. This action was brought by the appellant, Herbert A. Sayre, against the appellee, the Sheffield Land, Iron & Coal Company, to recover damages for the alleged breach of covenants of warranty and seizin contained in a deed from the defendant conveying certain land to the plaintiff; and was instituted January 16th, 1894.

Tried before the Hon. W. W. Wilkekson. This was a trial of the contest of a claim of - exemptions, which was filed by the appellee, Annie Beasley, claiming certain property levied upon under an attachment against said Annie Beasley, issued at the suit of the appellant, Herman Herzfeld. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. H. A. Sharpe. This suit was brought February 1st, 1893, by the appellants, E. & S. Pate, against the appellee, Roscoe McConnell. The complaint, as originally filed, contained six counts.

Tried, before the Hon. James J. Banks. • A suit'was brought by appellant, Charles A Senn, Register for the use of S. W. Downey, to recover damages for the breach of an injunction bond, given by. appellees, conditioned, to pay all such damages as said Downey might sustain by the suing out of an injunction to restrain the sale of certain stock in the Birmingham, Powderly & Bessemer Street Railroad Company, should the same be dissolved.

Tried before the Hon. John R. Tyson. This was a proceeding under a contest of a claim of homestead exemption, which was instituted by the appellant,. G. W. Blackman, upon the levy of an execution, issued upon a judgment recovered by the appellee, the Moore-Handley Hardware Company against G. W. Blackman and T. G. Blackman, Jr., composing the firm of Blackman & Son.

Heard before the Hon. Jeke N. Williams. The bill in this case was filed on October 20, 1894, by Goetter, Weil & Company, and many other creditors of Willis V. Bell, against the said Willis V. Bell,… Held: that a mortgage by a debtor of a part of his property to secure a debt, followed a few days thereafter by an assignment of the remainder, would be treated ás a part of a general assignment, although it was not such an instrument. Holt v. Bancroft, 30 Ala. 193.

Heard before the Hon. William H. Simpson. The bill in this case was filed on September 24, 1892, by the appellee, the Standard Oil Company, against the appellants, W. D. Scott and the Southern Oil Company.

Heard before the Hon. S. K. McSpadden. The bill in this case was filed by the appellees against the appellants. The facts of the case are sufficiently stated in the opinion. The appeal is prosecuted by the respondent from a decree of the chancellor confirming the appintment of a receiver by the register, and this decree of the chancellor is assigned as error. — The receiver in .this case was wrongly appointed. There was shown by the bill no case for his appointment.

Heard before the Hon. Thomas M. Arrington. The bill in this case was filed by the appellee corporation, the Builders & Painters Supply Company, against Mary A. Randolph, A. Schultz andM. Dominitz, for the purpose of enforcing a material-man’s lien upon a house and lot of the respondent, Mary A. Randolph.

Heard before the Hon. Jere N. Williams. Joseph Silva was the tenant of appellee, W. P. Rice, and died intestate. At the time of his death syid Silva was indebted to said Rice for unpaid rent. The appellant, J. P. Knabe, qualified as administrator of the estate of Joseph Silva, deceased, in the probate court of Montgomery county.

Tried before the Hon. John H. Disque. ' This action was brought by the appellee, T. J. King, against the appellant, the Hartford Fire Insurance CompanjT-.

Tried before the Hon. W. W. Wilkerson. This was an action of assumpsit brought by the appellant, the Peoples Bank of Lewisburg, Tennessee, against the appellee, the Jefferson County Savings Bank, to recover the sum of $750, alleged to have been had ' and received by the defendant for the use of the plaintiff. The facts of the case are sufficiently stated in the opinion.

Heard before the Hon. Jere N. Williams. The original bill in this case was filed on March 8th, 1893, by the appellee, Margaret S. Nelson, against William R. Waller, as administrator of the estate of Owen 0. Nelson, deceased, the First National Bank of Montgomery, and the Savannah, Americus & Montgomery Railway, and its receivers. The allegations of the bill are substantially as follows : In 1847 the complainant intermarried with 0. 0.

Heard before the Hon Jere N. Williams.' The bill in this case was filed on April 10, 1894, by the appellees, A. S. Stephens and Ida Stephens, against the appellant, G. W. Turner, and sought to enjoin a suit in ejectment, brought by the respondent against the complainants.

Heard before the Hon. Jere N. Williams. The material facts of this case are sufficiently stated in the opinion. The defendant filed five pleas, in which he set- up facts which he alleged were sufficient to bar the right of complainant to relief.

Tried before the Hon. Thomas M. Arrington. This was a statutory trial of the right to property, instituted by the appellees interposing a claim to personal property which was levied upon under an attachment issued in a suit brought by the appellant, James E. Wbrswick, against R. E. Hunt and M. E. Hunt. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. John R. Tyson. This action was brought by the appellants, J. L. Hall and L. B. Farley, trustees, against the appellee, W. A. Sims, and was founded on a promissory note executed by the defendant. This note was introduced in evidence, and is copied in the opinion. It was indorsed by the ■Alabama Midland Railway Company, and also by the Alabama Terminal & Improvement Company.

Heard before the Hon. W. C. D. Cook. The appeal in this case was prosecuted by the appellants as administrators, from a decree of the probate court refusing to allow certain claims in their final settlement of the estate of George W. Malone, deceased, against the distributive share of Wallace C. Malone. The facts of the case are sufficiently stated in the opinion. — 1.

Tried before the Hon. W. W. Wilkebson. This action was brought on July 28, 1892, by the appellee, DeWitt Booe, against the appellant, Robert W Long, to recover damages for the defilement of plaintiff’s wife by defendant, and the alienation of plaintiff’s wife’s affections. • The complaint contained two counts.

Heard before the Hon. William H. Tayloe. The appellant, Mattie P. Glass, filed this bill asserting a rent claim against Eanes & Peterson, for the .rent of the property in the city of Selma, known as the St. James Hotel, and she seeks as landlord to fasten a landlord’s lien on certain furniture and other personal property alleged to have been kept in said hotel, and which is averred was removed therefrom by the appellee, Tisdale, who is made the defendant to the bill.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the appellant, Eliza H. By an, against the appellee, Lucian B. Price, to set aside an alleged deed of gift, executed by the complainant, conveying certain lands to the respondent. The grounds upon which the relief was asked were mental incapacity and undue influence. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. W. W. Wilkerson. This was a statutory action in the nature of an action of ejectment, brought by the appellee, the Pioneer Savings & Loan Company, against the appellant, Artie H. Lomb, to recover certain lands specifically described in the complaint; and was instituted on April 8, 1892. ■ On the trial of- the case, the defendant suggested that the suit was brought by a mortgagee against a mortgagor, and that the mortgage debt should be ascertained and…

AppbaXj from the Chancery Court of Franklin. Heard before the Hon. Thomas Cobbs. • The bill in this case was filed on December 11, 1898, by the appellee, John K. Clarke, against J. C. Allen, as the executor of the will of Catherine Anderson, deceased, and against Lelia Bullock, Jessie Anderson and Dona Anderson.

-Appeal from the Circuit Court of Jackson. Tried before the Hon. J. A. Bilbro. This was a statutory action of ejectment, instituted on November 21, 1893, by the appellee, James E. Brown, against the appellants. 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 plaintiff gave the general affirmative charge in his behalf.

Tried before the Hon. William H. Simpson. This was a statutory trial of the right to property, which was instituted by the appellee, Mrs. Nancy B. Renfro, interposing a claim to certain property, which was levied upon under a writ of attachment, at the instance of John F. Scott in a suit by him against the Merchants Insurance Company, to recover rent alleged to be due said Scott by the Merchants Insurance Company.

Heard before the Hon. Ti-iomas Cobbs. The facts averred in the original bill are fully stated in the report of this case on the former appeal. — 94 Ala. 303.

Tried before the Hon. H. A. Si-iarpe. This was an action on the case, brought by the appellee, John H. Baker, under the Employer’s Liability Act, against the Louisville & Nashville Railroad Company, to recover for personal injuries, alleged to have been caused to plaintiff, who was an employe of the defendant, while uncoupling cars constituting a part of a train on the road of the defendant.

Tried before the Hon. John B. Tally. The facts of the case are sufficiently stated in the opinion. cited 2 Dan’l on Neg. Instr., §§ 1043, 995, 995a, 1003 ; 2 Amer. & Eng. Encyc. of Law, pp. 414-415, note; Philipe v. Haberlee, 45 Ala. 607; 1 Brick. Dig., 267, § 230. — The proof of the receipt of the notice by the plaintiff bank “on or about the 8th” does not show that the notice was mailed from Florence on the 6th. — Tiedeman on Com. Paper, § 337 ; 2 Danl. Neg.

<p> Action on a Promissory Note. </p> <p>1. Action on note; can be maintained by trustee in his own name.— Notwithstanding the statute (Oode, k 2594), provides that “actions upon promissory notes must be presented in the name of the parity really interested,” one to whom a note is made payable, as trustee for others, can maintain an action in his own name; the plaintiff in such suit, as payee of the note, having the legal title thereto, and being a party to whom payment could be efficaciously made and who could legally discharge the debtor.</p> <p>2. Same; consideration of note; gift by defendant — A. gift legally made confers on the donee the title to the property given ; and if, after a gift, the property given is converted into money, and the trustee of the donee loans the money to the donor, and takes his promissory note therefor, the maker of such note cannot defeat recovery in an action thereon by proof of these facts under a plea of want of consideration ; the debt of the maker of the note being as binding upon him as if the money loaned him had been derived from an entirely different and independent source.</p>

Tried before the Hon. N. D. Denson. This was a common law action of ejectment, brought by the appellee against the appellants. Upon a verdict being returned for the plaintiff and á judgment rendered thereon, the defendants moved for a new trial. This motion was overruled, to which ruling of the court the defendants duly excepted.

Tried before the Hon. James J. Banks. This action was brought by the appellant, W. H. Boland, against the appellee corporation, to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant as a brakeman.

Clair. Heard before the Hon. S. K. McSpadden. Held: and upon the coming in of the report of the register, the chancellor, by a decree rendered on May 12, 1883, confirmed the said report, and ordered that the claims of the petitioners be paid in full out of the funds in the hands of the receiver — the property of the company having been previously sold under a decree of the court.

Tried before the Hon. James J Banks. This action was brought on July 29, 1893, by the appellant, G. T. Tubb, against the appellee, the Liverpool & London & Globe Insurance Company, to recover, as recited in the complaint, “the value of a stock of general merchandise, such as is usually kept for sale in country stores, which the defendant, on the 8th day of April, 1893, insured against losses or injury by fire, and other perils, in a policy of insurance mentioned, for the…

Tried before the Hon. James J. Banks. The appellee, the Chattanooga Door & Sash Company, brought an attachment suit against Samuel Ullman, doing business under the firm name of Ullman Hardware Company, in which suit a writ of garnishment was served on the appellant, the Alabama National Bank. The Alabama National Bank, as such garnishee, answered, denying all indebtedness to said Ullman.

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

<p>Appeal from Etowah Chancery Court.</p> <p>Heard before the Hon; S. K. McSpadden.</p>

<p>Appeal from the Circuit Court of Jefferson.</p> <p>Tried before the Hon. James J. Banks.</p>

<p>Appeal from Madison Chancery Court.</p> <p>Heard before the Hon. Thomas Cobbs.</p>

<p>Appeal from Marshall Chancery Court.</p> <p>'^¡Heard before the Hon. S. K. McSpadden.</p>

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

<p>Appeal from Geneva Circuit Court.</p> <p>Tried before the Hon. J. M. Carmichael .</p>

<p>Appeal from Lauderdale District Courtf, in Equity.</p> <p>Heard before the Hon W. P. Chitwood.</p>

<p>Appeal from Fayette Chancery Court.</p> <p>Heard before the Hon. W. H. Tayloe.</p>