Volume 107 — Alabama Reports

Tried before the Hon. J. M. Carmichael, The appellant, Starling Hayes, was indicted and tried for grand larceny.

Tried before the Hon. Thos. M. Arrington. The facts of the case are sufficiently stated in the opinion. —As the indictment charged that Elbert Plolt was the duly and regularly appointed deputy clerk of the circuit court, and as the evidence shows, that, he had not complied with the law to duly qualify him for that office, the objection to the affidavit ought to have been sustained. — Joseph v. Cawthome, 74 Ala. 411; Floyd v. The State, 79 Ala. 89 ; Mathis v. Carpenter, 95…

Tried before the Hon. John Moore. The appellant was indicted for an assault with intent to murder one Will Harris, and was convicted of an •assault and battery with a weapon. 0 n the trial of the case, as is shown by the bill of exceptions, there was evidence introduced tending to show that the defendant cut Will Harris with a knife.

Tried before the Hon, M. Y. Hayes. The facts of the. case are sufficiently stated in the opinion.

Tried before the Hon. J. W. Foster. The appellant, Minzy Stillwell, was indicted and tried for the murder of Sam Raiford, was convicted of murder in the second degree, and sentenced to the penitentiary for ten years. On' the trial, as is shown by the bill of exceptions, it was shown that the deceased came to his death from the effects of a' blow which fractured his skull, the blow being' struck by the defendant.

Tried before the Hon. John Moobe. The appellant was indicted, tried and convicted for the burglary of a smoke-house, the property of Sallie Melson.

Tried before the Hon. H. C. Speake. The appellant was indicted, tried and convicted of arson, and sentenced to imprisonment in the penitentiary for ten, years. The defendant moved the court for a change of venue, the grounds of which are stated in the opinion. The State demurred to this motion, on the ground that the facts set out in the application were not sufficient to authorize a change of venue. This demurrer was sustained, and the defendant duly excepted.

Tried before the Hon. John Moore. The appellant was indicted, tried and convicted of grand larceny, for stealing a hog, and sentenced to the penitentiary for three years.

- Tried before the Hon. John W. Bishop. The appellant, Whit Orr, was indicted for larceny from a storehouse, and for receiving stolen property. The indictment contained three counts; the first two charging larceny, and the third charging defendant with receiving stolen property, knowing the same to have been stolen.

Tried before the Hon. John R. Tyson. The appellant was indicted and tried for the murder of E. E. Curtis, by shooting him with a pistol, and was convicted of murder in the second degree, and was sentenced to the penitentiary for 20 years.

Tried before Hon. W. R. HeLoach. Appellant was tried and convicted for petit larceny. The prosecution was commenced by a complaint sworn out before the judge of the county court.

Tried before the Hon. N. D. Henson, Judge. ■ The appellant ivas indicted, tried and convicted for car tying a pistol concealed about his person.' The testimony for the State tended to show that the defendant ivas guilty as charged in the indictment; while the defendant’s testimony was in direct conflict with that of the State, and tended to show that at the time specified, he did not have a pistol concealed about his person.

^ Tried before the Hon. John W. Bishop. .William Burton, the appellant, was tried on, the 18th of April, 1895, in tlie City Court of Talladega, upon an indictment for grand larceny, and was convicted. The facts brought out on the trial, stated briefly, are as follows : Paul J. Collier left Birmingham on the Georgia Pacific Railroad on Saturday afternoon, December 22, 1894. The defendant, Bob Smith and Jim Ball left Birmingham on the same train.

Tried before the Hon. Thomas M. Aurcnuton. Appellant was indicted and tried for the murder of one Jerry Stewart, and was convicted of murder in the second degree. The rulings of the lower court, reviewed on this appeal, are sufficiently stated in the opinion. The evidence for the State tended to show that the defendant was guilty as charged.

Tried before the Hon. J. A. Bilb no. The indictment charges two separate and distinct offenses, having different punishments. (1) Engaging in the business of a retail dealer in spirituous or vinous or malt liquors other than lager beer. (2) Engaging in the business of a retail dealer in lager.beer exclusively. The punishment for the first of these offenses is a fine of $375. and of the second a fine of only one fourth of this amount.

Tried before the Hon. PI. C. Speaicb. The 'appellant was convicted under an indictment charging him with allowing a prisoner to escape..

Tried before the Hon. Thomas R. Rouli-iac. The appellant was indicted with one Arnott Mills and Harry Moore for the larceny of a steer, and was tried separately, (his co-defendants having pleaded guilty), and was convicted and sentenced to the penitentiary for two years and three months. Upon the trial, the State introduced evidence tending to show that the defendant was guilty as charged in the indictment.

Tried before the Hon. James J. Banks. The appellant was jointly indicted with John Bonner, for- the murder of Andrew J. Higgins, was tried separately, and convicted of murder in the first degree, and sentenced to the penitentiary- for life. On the trial of the cause, as is shown by the bill of exceptions, the State introduced evidence tending to show the killing of Andrew J. Higgins.

Tried before the Hon. George E. Brewer. The appellant, Joe Burton, was indicted by the grand jury of Cleburne county, at the spring term, 1895, of the circuit court of said county, for the murder of Jethro Evans.

. Tried before Hon. John H. Disque. The appellant was indicted, tried and convicted of an assault with intent to murder one Berry T. Collier, and sentenced to imprisonment in the penetentiary for two years.

Tried before the Hon. J. A.Bilbro. The appellant was indicted, tried and convicted under an indictment which charged that. “James T. Newsom feloniously took and carried away a sack full of corn, a part of an outstanding crop of corn, the property of Pierce Richards.” Upon the trial of the cause, as is shown by the bill of exceptions, the .testimony for the state tended to show that the owner of the property and two other persons saw the defendant pulling corn from the field…

Tried, before the Hon. J. A. Bilbro. The indictment in this case was returned to the circuit court of Cherokee county, on July 15, 1892. The evidence on the part of the State tended to show that the defendant was guilty as charged in the indictment ; while the defendant, as a witness in his own behalf, testified that he had never promised to marry the prosecutrix until after criminality.

Tried before the Hon. William H. Parks. The appellant was indicted, tried and convicted for using abusive, insulting or obscene language in the presence or hearing of a female. The defendant pleaded not guilty and former jeopardy. The solicitor for the State replied «orally to said pleas.

. Tried before the Hon. J. W. Foster. The,appellant was indicted for an assault with intent to murder George Rowell, was found guilty as charged in the indictment, and sentenced to imprisonment in the penitentiary for five years.

Tried before the Hon. J. A. Bilbro. The charge requested by defendant ought to have been given ; '3rd Vol. Green-leaf on Evidence, 3rd edition, paragraphs 154, 155, 157, 161, 162 and notes ; also Vol. 1 of Bishop on Criminal Law, 5th edition, paragraphs 207, 320, 342 and 411. Wharton’s Criminal Law, 9th edition, paragraph 963; and Watson v.- State, 70 Ala. 13; and Lowder v. State, 63 Ala. 143. Defendant’s charge was properly refused.

Appear from the Circuit Court of Cherokee. . Tried before the Hon. J. A. Bilbro. Andrew Dorsey was convicted of murder in the second degree, and appeals. The ruling of the court upon the formation of the jury is sufficiently stated in the opinion.

<p> Indictment for Disturbing Public Worship. </p> <p>1. Defendants declaration admissible to show offense ivas committed 'wilfully. — Declarations of defendant ongoing to church, and after his arrival there, that “I am going to stay here until I get satisfaction” ; “I am going to have satisfaction,” — are admissible to support a charge of wilful violation of the statute against disturbing public worship.</p> <p>2. General exception to charges requested as a whole. — When several charges, part only of which should be given, are requested as a whole and the exception to the refusal thereof is general, such refusal is not available as error.</p>

Heard before the Hon. W. H. Tayloe. William PI. Thompson and Mary V. Thompson were married on June 27, 1867. At that time, she had some ■little property, part of which consisted of a flock of sheep. In thq year 1883 this flock of sheep had increased to one thousand head, and were sold for $2,500. With a part of the money from the sale of the sheep, Mary V. Thompson bought a store-house and lot, and an adjoining vacant lot.

Heard before the Hon. Thomas Cobbs. The First National Bank of Tuscaloosa, as a judgment creditor of John S. Kennedy, filed a bill against the said John S. Kennedy and his grantees to set aside as fraudulent a conveyance of land by said John S- Kennedy to his co-respondents, and to subject said lands to the satisfaction of the judgment.

Tried before the Hon. John B. Tally. This action was brought by the appellees, Withey & . Ottman, against the appellant, Geo. W. Bain, on promise sory notes, executed by the defendant to the plaintiffs.

Tried before the Honorable H. C. Speake. The appeal in this case is prosecuted by the plaintiffs in the court below from a judgment rendered in favor of the defendants. The facts of the case are sufficiently stated in the opinion. To entitle plaintiff to recover, it was necessary there should he evidence tending to show that the possession was permissive in its inception.

Tried before the Hon. H. C. Spbake. This was an action on the case, brought by the appellant, J. C. Goodloe, against the appellee, the Memphis tfc Charleston .Railroad Company, to recover damages for personal injuries, alleged to have been caused by the negligence of the defendant, or its servants or employes.

Tried before the Hon. J. M. Carmichael. On February 20, 1895, the appellee, Bartow Garner, us administrator de bonis no it of the. estate of James H. Garner, deceased, filed a motion in the circuit 'court, of Dalo county to amend nunc pro time a judgment previously rendered by the circuit court of Dale county, at a former term of the court, in favor of S. D, Parker, as administrator of the estate of .James H. Garner, deceased, against the appellant, G. W. Garner.

Appear from the city court of Bridgeport. Tried before the Hon. Wuhham L. Stephens. This was an action of assumpsit brought by the appellee,V. I). Ladd, against the appellant,the Bridgeport Lumber Company, upon a promissory note and an account. The cause was tried by the court, without the intervention of a jury, and judgment was rendered in favor of the plaintiff. Defendant appeals and assigns as error several of the rulings of the trial court.

Heard before the Hon. Jerre N. Williams. The bill in this pase was filed by the appellee, Nancy Cooper, against the appellant, R. J. Williams. The averments of the bill are sufficiently set forth in the opinion. The respondent demurred to the bill on the ground that it was multifarious. On the submission of the cause on this demurrer, the chancellor decreed that the demurrer was not well taken, and overruled it.

Heard before the Hon. W. H. Tayloe. The bill in this case was filed December 26th, 1890, by the appellant, R. W. Stoutz, as administrator of the estate of Charles Werborn, deceased, against the appellees, and sought to subject to the satisfaction of a judgment recovered by Charles Werborn against the respondent^. B. Huger, certain real property in the city of Mobile. The facts of the case are set forth at length in the opinion.

Heard before the Hon. Jere N. Williams. The bill in this case was filed on January 22d, 1894, by the appellant, The Raisin Fertilizer Company; against the appellees, J. T. Bell, Mary J. Bell, his wife, J. C. Bell and H. L. Martin.

Tried before the Hon. Jere N. Williams. The bill in this case was filed on February 36th, 1892 by the appellant, The National Bank of the Republic, against the appellees, Homer Dickinson, Florence Dickinson, his wife, James, D Rhodes, Mamie C Long, late partners, using the firm name of Long & Rhodes, and S. H. 'Dent, Jr. The complainant files the bill as a creditor of the said Homer Dickinson, his indebtedness being evidenced by a draft accepted by said Dickinson, and…

Heard before the Hon. S. K. McSpadpen, Prior to Nov. 1, 1886, the1 appellant, A. J. Smith, purchased a-t-rac-t of land in Clay comity, Ala., from one Daniel S. Smith, executed his note to said Smith for the payment of the purchase'money, and wont into possession of the property, said Daniel S. Smith having executed and delivered to him a deed of conveyance thereto.

Appkal from the Oii-y Court of Montgomery. Tried before (Te fío;,. Thomas M. Arrington. The appellant:; aro all citizens of New York, doing the business of underwriters under the .stylo of the South cfc North American Lloyds of the city of New York. On the i-kh d íy ot January, 1895, and again about the lQihdyy o'! March, (895, they applied to the Knn.

Tried before the Hon. John Moore. This was an action brought by the appellees, Bamberger, Bloom & Co , against the appellants, Dickson Bros., upon a bond alleged to have been executed by the defendants. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. J. M. Carmichael. This action was brought by the appellant, H. M. Comer & Co., against the appellants, Way & Edmundson. The complaint contained two counts. In the first count the plaintiffs claim of the defendant, $946.55, due by account stated on December 5, 1895, “which said-account is verified by affidavit.” In the second count, the plaintiffs claim the saíne amount as clue for money paid by the plaintiffs for the defendant.

Tried before the Hon. J. M. Carmichael. This action was brought by Mrs. M. A. Smith upon a fire insurance policy to recover the value of a store house and stock of goods destroyed by fire. The policy was taken out by her husband, M. A. Smith, in the name of Smith & Co., in which firm he had no interest.

Tried before the Hon. Jere N. Williams. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. .John R. Tyson. The appellants, Hobbie & Teague, brought the present action against the appellee, the Bank of Montgomery, to recover amount due for goods sold by plaintiffs to J. M. Falkner, as trustee for appellee and others, and at their instance.

Heard before the Hon. Jere N. Williams. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. William B. Bridges. _ Oh the 20th day of November, 1893, the appellee, James A. Toney, as the administrator of the estate of Celia Berry-, deceased, filed a petition in the probate court of Jackson county, asking for an order from said court to sell certain described lands for the payment of the debts of the estate of Oelia Berry.

Heard before the Hou. W. IT. Simpson. The facts averred in the bill were as follows : On March 10, 1891, the complainant, being seized and possessed of a certain tract of land, sold and conveyed the same to V. N. Winfrey & Co., a copartnership composed of one W. N. Winfrey and said John W. Landman; and on same day executed and delivered to W. N. Winfrey in person the deed to said land.

Appear from the Probate Court of Marshall. Tried before J. L. Burke, Esq., Special Judge. The appellee, Mary A. Sheffield, filed her petition in the probate court of Marshall county, praying for the allotment to her of a homestead in the lands of her deceased husband.

Tried before the Hon. J. M. Carmichael. This was an action of assumpsit for money had and received brought by the appellee, Samuel 'Bowdon, against the appellants, B. A. Lytle & Co. The facts of the case are sufficiently stated in the opinion. There was judgment for the plaintiff. Defendants ap- peal, and assign as error the refusal of the court to give to the jury the two charges requested by them.

Appeal frpm tbe Chancery Court of Shelby. Heard before the Hon. S. K. McSpadden. W. S. Oaky, for the appellant. — The appellant, respondent below, was a non-resident minor heir. Proof of publication was not perfected in the manner prescribed by the rule of practice. For this reason, the case will be reversed and remanded.

Heard before the Hon. S. K. MoSpadden. Bill in chancery by P. Rowan against Quitman Read, and wife to foreclose a deed of trust executed by them to I. L. Swan, as trustee, and by him assigned and transferred to complainant.

Tried before the Hon. J. J. Banks. This is a proceeding in the nature of quo warranto, brought by the State on the, relation of Chris tain F. Enslen and by Ohristain F. Enslen.

Tried before the Hon. James W. Lapsley. The original bill in this case was filed by E. F. White against J. L. Simpson on January 18, 1894. The facts averred in said bill were as follows : On October 11, 1890, E. F. White, the complainant,- sued out an attachment in the city court of Anniston , in favor of himself, against L. V. White, and Mrs. E. S'. White, and on October 16, 1890, said attachment was executed by service of a writ of garnishment on J. L. Simpson.

Tried before the Hon. N. D. Denson. On May 7, 1889, the appellant, Joshua Ballard, recovered a judgment for $58.38 and costs, against Thomas F. Ussery. On May 24, 1890, a certified copy of the judgment so recovered was duly recorded in the office of the Probate Judge of Randolph county. On April 10, 1891, Thomas F. Ussery. executed to the appellees, Mayfield, Pitman & Co., a mortgage upon the entire crops to be grown by him during that year, on his lands, or by his tenants.

Shelby, Tried before the Hon. LeRoy F. Box, This suit was brought by plaintiff, as the administratrix of the estate of John Jones, deceased, to recover damages for the killing of her intestate, which is alleged to have been caused by the negligence of the defendant.

Tried before the Hon. John R. Tyson, The appellant, the National Fertilizer Company, brought the present action against the appellees, E. E. Holland and others, upon a promissory note, alleged to have been executed to the plaintiff by the defendants. After the case was called for trial, and after the plaintiff and defendants had announced ready, the defendants moved the court to suppress the deposition of one J. B. Reid, which had been taken by the plaintiff in the cause.

Tried before the Hon. James W. Lapsley. This suit was brought by Elias F. White against John L. White, the complaint being as follows: (1) “The plaintiff claims of the defendant seven hundred and fifty dollars, for money received 1st day of May, 1891, to the use of plaintiff, and which, with interest thereon, is due and unpaid.” (2) “The plaintiff claims of the defendant the other and further sum of seven hundred and fifty dollars, due from him as follows : Plaintiff had…

Tried before the Hon. W. J. Hilliard. Savannah Shofner died in Pike county, Alabama, February 21, 1895 and left surving her two sisters and one brother, viz., L. A. Senn, the wife of N. W. Senn, of Pike county Alabama, E. A. Teer, the wife of William Teer, and William Sliofner, the latter named sister and the brother living in Texas.

Heard before the Hon. Thomas Cobbs. The bill iti this case was filed by the appellant against the appellee, and sought to enforce a lien in her favor as being paramount to a lien held by the American Freehold Land Mortgage Company of London, Limited, under a mortgage executed to it by Burrel J. Curry, the husband of the complainant, and the complainant. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. W. P. Chitwood. The evidence shows that, on the 5th, February 1891, appellants through E. J. Davis presented to Gallyon and Son an order drawn on them by Banks in favor of Appellants for $2,654.94. This order Gallyon and Son after telling Davis that they owed Banks $500 or $600, they put in their safe and kept it for over 2 years. In fact they orally accepted it.— Auerbach v. Pritchett, 58 Ala. 457. Retention of the order was an acceptance.

Ai’pkal from the Circuit Court of Lowndes. Tried before the Hou. Jno. R. Tyson. 'Phis was a proceeding in the nature of quo warranto, instituted by the State of Alabama on the relation of Bhirlev Bragg against C. P. Rogers, jr., R. W. Russell, J. B. Mitchell, J. C. Wood, R, J. Stagers and J. H Sheppard.

Tried before the Hon. James W. Lapsley. The present suit was brought by the appellee, the American Trust & Banking Company against A. Culberson upon a note under seaí, made by the defendant, A. Culberson, to the Interstate Abstract Company, and endorsed by the payee to the plaintiff. , The complaint avers that the note is payable at the office of the Neal Loan & Banking Co., Atlanta, Ga., to the payee, who resided at the time the note was made and when complaint was filed in…

Tried before the Hon. S. P. Baker. Nancy Turner, the widow of L. M. Turner, deceased, filed her application in the probate court of- Cleburne county, to have set apart to her, as exempt from administration, a homestead in the lands of which her husband died seized.

Tried before the Hon. Le Roy F. Box. The complaint in this suit is as follows : “The plaintiff, Calvin M. Wheeler, sues the defendants, George W. Alexander and Anna Alexander, to recover the following tract of land, to-wit: The west half of the northeast fourth of section ten, township thirteen, of range eleven, situated in Cleburne county, Alabama, of which he was possessed before the commencement of this suit,” etc. On September 5, 1889, upon the trial of said cause, the…

<p> Bill in equity to reform deed and for■ injunction. </p> <p>1. Issue in chancery cause directed to be tried at law. — Where an issue in a chancery cause is directed by the chancellor to be tried at law, but the trial, when had at law, is not that contemplated by the order, it is the duty of the chancellor to direct a new trial, or a trial corresponding to that he had ordered.</p> <p>2. Final decree in equity. — If all the equities between the parties to a chancery cause are settled, and there remains only a reference to be had for the ascertainment of the amount, the decree is final; but a decree is not final which settles only a part of the equities in the case, notwithstanding a general expression therein of the opinion of the chancellor that complainants are entitled to the relief prayed.</p> <p>3. Same; case at bar. — Wherein a suit to correct a misdecription in a deed, for an injunction against the cutting of timber and quarrying of stone by defendants claiming adversely to complainants, and for an account and decree for value of stone and timber taken and removed by defendants, a preliminary injunction was granted, a decree was rendered reforming the misdescription in adeed-, and atrial at law was directed for determination of the title of the complainants to the stone and timber, on which trial defendants disclaimed possession of the stone and timber, the court of law gave judgment that defendants recover of plaintiffs the costs of the suit, and the note of submission on the last hearing showed that the attention of the chancellor was drawn to this proceeding, but his decree thereafter given was merely as follows: “Upon due. consideration it appears to the court that the complainants are entiiled to the decree prayed for. It is therefore * * * decreed that defendants’ motions to dismiss the bill and dissolve the injunction be * * * overruled, and that defendants’ demurrers are hereby overruled. It is further ordered and decreed that complainants’ injunction heretofore granted be * * * perpetuated. All other questions in the original cause are reserved”; this was not a final decree, which would support an appeal.</p>

Heard before the Hon. Jere N. Williams. •The bill in this case was filed by the appellee, Sylves- ' ter Martin, against the appellant, M. W. Kelly. The facts of the case are sufficiently stated in the opinion.

Tried before J. C. Compton, Esq., Special Judge. The facts of this case are sufficiently stated in the opinion. It is deemed unnecessary to set out in detail the several rulings of the ti-ial court upon the evidence. Upon the introduction of all the evidence, the court, among other things, instructed the jury as follows : “If you believe from the evidence that. the defendant and H. C..

Tried before the Hon. John R. Tyson. This was an action of unlawful detainer, brought by the appellant, Dennis O’Donohue, against the appellee Henry Holmes. Issue was joined on the plea of the general issue.

Original application for mandamus, before the Supreme Court. S. J. McKissack and R. L. McKissack filed their original petition for mandamus in the Supreme Court, in which they allege the following facts : On December 13, 1892, Weitz, Beidler & Oo. sued out an attachment against S. J. McKissack alone for the sum of $1,330 before a justice of the peace of Henry county, returnable to the circuit court of Henry county.

Tried before the Hon. James J. Banks. The appeal in this case is prosecuted by the appellant, who was claimant in a statutory trial of the right of property, in which the appellee was plaintiff, from a judgment by the trial court in favor of the plaintiff. The facts of the case are sufficiently stated in the opinion.

Circuit Court of Marengo,..- Tried’.befo.r'e Hon: James T, Jones.- The facts of the case are sufficiently stated in the opinion. 1. The engine boiler, saw mill, shed and store house and office were manufacturing fixtures and could be removed. — Cap. City Insurance Go. v. Caldwell Bros. 95 Ala. 90; Tillman v. DeLacy, 80 Ala. 103 ; 83 Ala. 155 ; Rogers v. Prattville Mfy.

Appear from the Chancery Court of Mobile. Heard before the Hon. W. H. Tayloe. The bill in this case was filed on October 4, 1892, by the appellee, Daniel E. Smith, as trustee under the will of Frank Conlon, deceased, against the appellants, John M. Ladd, Martha M. Ladd, his wife and the People’s Bank of Mobile, a corporation under the laws of Alabama.

Original application for mandamus before the Supreme Court: In this case Thomas G. Hood and others, composing the firm of Hood, Foullcrod… Held: that there is no statutory provision applicable to the present case, requiring or authorizing a supersedeas bond, then it must be also held that the chancellor erred in supposing he had no jurisdiction or authority to make the desired order, since appeals in chancery, do not operate of their own force and effect to stay or suspend…

<p>Appeal from the Circuit Court of Jackson.</p> <p>Tried before the Hon. H. C. Speake.</p> <p>Action of ejectment by Hamlin Caldwell against Til-man P. Davis.</p> <p>After the introduction of all the evidence, the court, at the request of the plaintiff, gave to the jury the following written charges: (1) “If Mr. Boyd’s holding was intended to be to the true section line, and. he did not claim, or intend to claim, any land in section four, and the jury are satisfied from the evidence that the land claimed is in section four., they should find for the plaintiff.” (2) “If the line established was supposed to be the section line, and if each held under the honest belief that the line was the true section line, and it now appears that such line was not the true line, then there was no adverse possession of one against the other.” The defendant separately excepted to the giving of each of these charges, and also separately excepted to the court’s refusal to give the following written charge requested by him : ‘ ‘If the jury believe the evidence, they should find the issues in favor of the defendant.” There were verdict and judgment for the plaintiff, and the defendant moved the court to set aside said verdict and judgment, and grant a new trial, on the grounds (1) that the verdict was unsupported by the evidence; (2) the verdict was contrary to the evidence; and (3) the verdict was contrary to the charge of the court. The court overruled this motion, and the defendant duly excepted. Defendant assigns as error the giving of the charges requested by the plaintiff, the refusal to give the charge asked by the defendant, and the refusal to grant the motion for a new trial.</p> <p>1. If two adjoining proprietors agree upon a dividing line, and in their acts of possession and claim of title treat it as the line for the statutory period, the possession of each ripens into title.</p> <p>2d. If one adjoining proprietor extends his enclosures over and includes a part of the lands of his neighbor with no intention to claim such extended area, but claiming only to the true line wherever it may be, his title is not adverse. In such case there is no established line in contemplation of the parties, or either of them. There is a mental reservation that the line is yet to be established, and the one so made is only for temporary purposes.</p> <p>3. If on the other hand the party thus enclosing the lands of his neighbor thinks it is the true line, holds his possession to it as such, and his neighbor with knowledge of such holding or being charged with such knowledge by the open and notorious possession held by the party holding it as the line, acquiesces in such possession and claim for the statutory period the statute of repose applies.</p> <p>4. It makes no difference whether the party claiming by adverse possession, took and held possession in ignorance of the true line, or wilfully and tortiously. The test is, did the adverse holder have actual open possession under claim of title. Nob whether in good faith or not.</p> <p>Tested by these principles the evidence shows the long •possession by Jesse Boyd was adverse to Caldwell, and the affirmative charge for defendant ought to have been given.</p> <p>Charge No. 2 given for plaintiff asserts a proposition unknown to the law. It states in substance that if parties agree upon and hold their possession up to a line established by mutual mistake or by the mistake of one of them, there is no adverse possession. In other words it asserts that they must know the line to be wrong, and still claim it as the line in order that the statute may run. It would be another way of stating that a man to acquire title by adverse possession must knowingly usurp the property of his neighbor. That to the wilful wrongdoer and not to the honest man the law gives its aid. The statement of Jesse Boyd that he only intended to claim what belonged to him, would under such a rule operate to hold his boundaries unsetiled forever. The refusal of the affirmative charge for defendant and the giving of charges one and two for plaintiff are insisted on as reversible error. — 1 Amer. & Eng. En. L. 248 and 249 ; Alexander v. Wheeler, 69 Ala. 832 (340) ; Bernstein v. Humes, 72 Ala. 546 (556) ; Brown v. Cockerell, 33 Ala. 38.</p> <p>The only question in this,case, grows out of a disputed boundary. Adverse possession for ten years is the defense. We cite the following case for the appellee : Bernstein v. Humes, 75 Ala. 241. The case at bar, by the testimony of the former owner of the land, "Jesse Boyd, is brought directly under the influence of the rule in the case cited. The cases of JFoffman v. White, 90 Ala. 354, Alexander v. Wheeler, 69 Ala. 332, are not in conflict with the rule laid down in Bernstein v. Humes, before cited.</p> <p>The possession of the appellant had not been for the period of ten years, and therefore if Boyd’s possession was not adverse, it is immaterial as to whether Davis’ was or not.</p>

<p> Btatxtory Action of Ejectment. </p> <p>1. Plaintiff in’ejectment must show title from grantor in possession or from the government. — A plaintiff in ejectment in order w> make out his case must show a regular chain of title back to some grantor in possession or to the Government.</p> <p>2. Ejectment; title claimed from common source. — Where, in ejectment, both parties claim title from a common source, plaintiff need not prove title back of such source.</p> <p>3. Judgment declaring mechanic’s lien. — Where, in a suit to foreclose a mechanic’s lien, the jury found for plaintiff, and assessed his damages, but made no finding as to the lien, it was error for the court, without taking proof of facts necessary to constitute a lien, to enter judgment that a lien attached to the land, the existence of a lien being in issue.</p> <p>4. Verification of mechanic’s lien. —Under Code, § 3022, requiring an account for a mechanic’s lien to be verified by the claimant, or some person having knowledge of the facts, an affidavit by claimants that the account is correct and true, “to the best of their knowledge and belief,” is sufficient.</p>

Tried before the Hon. James W. Lapsley. This was an action brought by the appellee, G. W. Lewis, against the appellant, the Anniston Lime & Coal Co., to recover $318.81, alleged to be due by the defendant to the xilaintiff for barrel heads and barrel staves sold and delivered by the plaintiff to the defendant.

Heard before H. D. Clayton, Special Chancellor. This was a bill filed by the appellant, E. M. Glover, as the administrator of the estate of Maisy C. Crews, deceased, against D. L. Walker, the appellee, in the chancery court of Barbour county, Alabama, on the 18th day ,of August, 1893.

Heard before the Hon. Jeke N. Williams. The bill in this case was filed by the appellee against the appellants, and prayed for contribution from the defendants. The facts of the case are sufficiently stated in the opinion. On the final submission of the cause, the chancellor granted the relief prayed for. The respondents appeal, and assign as error the final decree of the chancellor.

Tried before the Hon. James A. Bilbro. This action was brought by the appellant, George Bain, against the appellee, M. G. Wells, as sheriff, and the sureties on his official bond, to recover damages for the unlawful taking of several hundred bushels of corn, alleged to have been the property of the plaintiff. The defendant pleaded four pieas. The 1st was the general issue. The 2d plea averred justification under a landlord’s writ of attachment for rent.

Appkat, from tlie City Court of Birmingham. Tried before the Hon. H. A. Sharpe. This Wets an attachment suit by O. S. Collins & Co., against the Lee Jordan Grocery Company in which B. L. Jordan & Co. intervened as claimants to try the right of property.

Tried before the Hon. Jambs A. Bilbro. This was a statutory action of ejectment, brought by the appellant, the New England Mortgage Security Company, against the appellee, William E. Payne, to recover 400 acres of land, which was specifically described in the complaint. The transcript contains three replications filed by the plaintiff to a special plea of defendant; but this plea is not set out in the transcript.

Tried, before the Hon. Thomas M. Arrington. The bill in this case was prosecuted by the complainant in the court below from a decree refusing the relief prayed for in the bill, and sustaining the conveyance which is attacked as fradulent. The facts of the case, material to the question decided on the present appeal, are sufficiently stated in the opinion.

<p> Action, on Attachment Bond. </p> <p>1. Recovery of exemplary damages in suit on attachment, bond,. — Tq Vox,. 107. authorize a recovery of exemplary damages in a suit upon an attachment bond the complaint must show not only that the attachment was sued out without the existence of the statutory grounds for the issuance of the attachment, but must, further, aver that the attachment was sued out without probable cause for believing the alleged ground to be true.</p> <p>2. Same; charge of court ax to measure of recovery. — A charge that ‘‘If the jury believe from the evidence that no statutory ground existed for attaching, and that defendant did not reasonably believe that one did exist, when the attachment was sued out, then they will find for the plaintiff for such an amount as to them shall seem proper, not exceeding the amount sued for,” given at the request of the plaintiff, is erroneous, where the complaint "fails to aver that the attachment was sued out without probable cause for believing the alleged ground to be true.</p> <p>3. Wife’s offer to pledge her property to secure bail for her husband no ground for attachment against her. — The mere fact that a wife offered to pledge her property to secure bail for her husband is no ground for an attachment against her, in the absence of fraudulent intent.</p>

Tried before the Hon. James W. Lapsley. This action was brought by the appellee, S. M. Gurley, against the appellant, the Anniston Transfer Company, to recover for the failure of the defendant to deliver a trunk received by it for transportation as a common carrier. Issue was joined on the plea of the general issue.

Tried before the Hon. Thomas M. Arrington. This was an action of trespass, instituted on August 10, 1894, by the appellant, Camilla D. Bonham, against the appellee, Jacques Loeb, to recover damages for trespass, alleged to have been committed by the defendant. The complaint contained two counts, which were as follows : ‘First count.

Heard before the Hon. S. K. McSpadden. The facts are sufficiently stated in the opinion.

Petition for a writ of mandamus to the Hon. James W. Lapsley, judge of the City Court of Anniston, to compel him to vacate an order transferring a suit from the jury to the nonjury docket. The facts of the case are sufficiently stated in the opinion.

Circuit Court of Conecuh. Tried before the Hon. John R. Tyson. This was a statutory action of ejectment, brought by the appellees against the appellant on March 9th, 1894. 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 plaintiffs, gave the general affirmative charge in .their favor, to the giving of which charge the defendant-duly excepted.

Heard before the Hon. Jerk N. Williams. The facts sufficiently appear in the opinion of the court. There is no pretense that notice was served on the appellant, of the judgment imi. It is true the judgment entry recites that notice was given, and for this reason the appellee had to resort to equity. The defense mainly relied upon in the court below is, that the judgment in the circuit court was affirmed on appeal in this court.

<p>Application for writ of mandamus to the Hon. William H. Simpson, Chancellor of the Northern Chancery Division of Alabama.</p> <p>The facts of the case are sufficiently stated in the opinion.</p>

Montgomery.. Tried before the Hon. John R. Tyson. This action was brought against the appellee, The Western Bail way of Alabama, by the appellant, Francis M. Davis, who was employed by the defendant as a switchman, to recover for damages inflicted upon the plaintiff, by getting his arm mashed, while trying to uncouple a car attached to a moving train on defendant’s road, in obedience to orders from a superior officer, whom he was bound to obey.

Appear from the Chancery Court of Tallapoosa. Heard before the Hon. S. K. McSpadden. The bill in this case was filed by the appellees, Hooper & Nolen, to foreclose a certain mortgage, which they held on certain property belonging to the appellant, C. J. Jackson, situated in Alexander City, Tallapoosa county, Alabama, and asking that a receiver be appointed to take charge of the property pending the foreclosure suit, aud to rent, insure and keep the .same from waste.

Tried before the Hon. James T. Jones. This was an action brought by the appellee, Melinda L. Lenoir, against the appellant, the Postal Telegraph Cable Company, to recover the statutory penalty for cutting down trees from the lands of the plaintiff, without her consent under section 3296 of the Code of 1886. The defendant pleaded the general issue and the following special pleas : ‘ ‘2.

Tried before the Hon. John R. Tyson. This was an action on the case, brought by the appellee, E. M. Binion, against the appellant, the Louisville & Nashville Railroad Company, to recover damages for personal injuries, alleged to have been inflicted upon the plaintiff, while in the employ of the defendant as a brakeman, by reason of the negligence of the defendant or its employes.

Tried before the Hon. J. A. Bilbro. Action of trespass by the appellee, James R. Anderson, against the appellant, O. C. Cambell, as sheriff, to recover damages for the alleged wrongful levy of an execution upon a mule, which was the property of the plaintiff, and was not the property of the person against whom the execution was issued. The facts of the case are sufficiently stated in the opinion.

Heard before the Hon. Thomas Conns. The bill in this case was filed by the appellees against the appellants, A. Ewing Echols and his wife, on December 19, 1892. Its purpose was to set aside as fraudulent and void two deeds, which were executed by A. Ewing Echols to his wife and co-defendant, Daisy Echols, on June 1, 1898, and June 10, 1893. Both of said deeds were filed for record in the probate court of Madison county on July 3, 1892.

Tried before the Hon. John R. Tyson. The appellant, The Troy Fertilizer Co., as creditors, sued out a writ of attachment against William L. Norman and George W. Norman, partners doing business under the firm name of Norman Brothers. The ground of the attachment was that the stock of goods owned by Norman Brothers, had been fraudulently transferred by them to Elizabeth A. Norman.

Tried before the Hon. James T. Jones. This was an action brought on September 8, 1893, by the appellee, James S. Brantley, against the appellant, the Postal Telegraph Cable Company, to recover the statutory penalty for wilfully and knowingly cutting certain trees from the lands of the plaintiff. The defendant pleaded the general issue, and by special plea that its agents, employés and servants were not authorized to do the acts complained of in the complaint.

Original application in Supreme Court for Mandamus. An original petition for mandamus was filed in the Supreme Court by William Charleston, which averred the following facts : William Charleston was arrested and carried before a justice of the peace of Marengo county on the charge of bastardy.

Heard before the Hon. R. K. McSpadden. The facts of the case are sufficiently stated in the opinion. The whole bill shows that it has no equity.. The court will not consider one portion of the bill which may tend to show by its averments that complainants are entitled to relief.— B’ham R. R. Co. v. City of Bessemer, 98 Ala, 274.

Tried before the Hon. James T. Jones. This was a statutory action of ejectment, instituted on June 5, 1893, by the appellant, Sallie J. Simmons, against the appellee, William Richardson, to recover certain specifically described lands. Issue was joined upon the plea of the general issue. The plaintiff claims under a voluntary deed, executed by her husband to her on February 28, 1883. She introduced this deed and rested. The deed was made by the husband to Thos.

Tried before the Hon. J. M. Carmichael. This was a statutory action of ejectment brought by the appellee, S. B. Harper,, against the appellant N. A. Johnson, to recover certain specifically described lands. The plaintiff based his title to the lands sued for, and his right to recovery in the suit, upon a tax deed made to him as the purchaser of the lands described in the complaint at a sale for State and county taxes.

Tried before the Hon. W. J. Hilliard.' The proceedings in these cases were had upon the settlement of Sarah A. Ballard, as administratrix of the estate of J. C. Ballard, deceased, after the said estate had been declared insolvent. J. C. Ballard, a resident citizen of Pike county, Alabama, died in said county in August, 1891, and left surviving him a widow and minor children.