Volume 108 — Alabama Reports

Appeal irom the City Court of Montgomery. Trieu before Hon. T. M. Arrington. The defendant was indicted for the crime of incest witn his daughter. The evidence showed that the daughter was About sixteen years old, and that the sexual act was accomplished by brute force on the part of the defendant overpowering the resistance of his victim.

Tried before the Non. N. D. DeNSON. This action was begun by attachment by The State against the Bristol Savings Bank, a foreign corporation, to recover of it a penalty for doing business here without having filed in the office of the Secretary of State a certificate designating an agent and a place of business as prescribed by the act to enforce Section Four of Article Fourteen of the constitution, approved February 28th 1887.

Heard before the Hon. Leroy F. Box. This was a petition for a mandamus, to be directed against the board of election supervisors of Shelby county, directing them to re-assemble, re-canvass and make a new declaration of the result of an election for sheriff of said county. The deficiencies of the petition being set out in the opinion, it is unnecessary to show its allegations in full.

Tried before the Hon. W. S. ANdersoN. The appellant, John Murphy, was indicted; tried and. convicted for the murder of Ed Cameron. On the trial, the State introduced evidence to the effect that Ed Cameron came to his death from the effects of a shot from a gun fired through a window of his ■ store, in which he was sitting. The killing occurred at about 8 o’clock at night.

Tried before the Hon. N. D. DeNsoN. Frank Robinson was indicted and tried for the murder of Alphonso Hooper. He was convicted of murder in the second degree and sentenced to the . penitentiary. The evidence for the State was to the effect that the deceased came to. his death from the effect of three pistol shots fired by the defendant. That at the time, the deceased was running away, and the defendant running after him, firing upon him as he ran.

. Tried before Hon. N. D. DeNSON. • The only question raised hy this appeal is upon the sufficiency of the second count of the indictment, which is thus written “The grand jury of said county further charge that before the finding of this indictment, Tarkins, whose given name is to the grand jury unknown, gave .away or delivered spirituous, vinous or malt liquors, or intoxicating bitters within precinct seven, in said county, against the peace and dignity of the State of…

Tried before Hon. W. S. Anderson. The defendant Nicholas Brown, was tried and convicted of living in a state of adultery or fornication with Caroline Barado. The evidence of one Pose, for the State, was to the effect that the defendant and Caroline Barado, accompanied by two children of the latter, left the wharf of the witness in Baldwin county, sailing in the direction of Mobile, in a boat of the defendant, which had a cabin on it.

Tried before the Hon. W. W. Wilkerson. This was an action of ejectment by the State of Alabama against Mack Holmes to recover certain land described in the complaint.

Tried before Hon. O. J. Semmes. The defendant was indicted and tried for the murder of Allen Robinson. The proof tended to show that defendant and deceased met casually, both being intoxicated. That they indulged in profanity and mutual abuse. Finally the defendant struck the deceased over the head with a picket he had torn from a fence at hand. Robinson died three days thereafter.

Tried before Hon. J. M. Carmichael. This was an action brought in the name of the State of Alabama, by.the solicitor of the third judicial circuit of said State, upon an order made by the judge of said circuit, in the Circuit Court of Bullock county. This suit is a statutory action and seeks to vacate the charter of The Mobile & Girard Railroad Co., under §§ 3167, 8168 and 3169, of the Code of 1886.

<p>Appeal from Lowndes Circuit Court.</p> <p>Tried before Hon. J. R. Tyson.</p> <p>The facts of this case are sufficiently stated iu the opinion.</p> <p>Cited Moore v. The State, 40 Ala. 49.; Miller v. State lb. 54; Stevens v. State, lb. 54; Steven v. State, lb. 67 ; Riley’s Case, 2 Pick. 2.</p> <p>cited 7 Am. & Eng. Ene. L. 529-30 ; lb. 527 ; Cooley Con. Lim.(5bh Ed.) 265, 322; Strong v. State, 1 Blaekf. (Ind.) 193.</p>

Tried before Hon. O. J. Semmes. The defendant was indicted for forgery under section 3852 of the Code. The indictment follows the form laid down in the Code. The defendant demurred to the indictment on the ground that it failed to charge that the defendant uttered, the purported forged deed, knowing the same to be forged. The demurrer was overruled aud the defendant excepted.

Appeals from Jefferson Criminal Court. Tried before Hon. S. E. GreeNE. These were three several appeals,but were argued and submitted together, and the facts in each are substantially the same, and sufficiently appear in the opinion. The court below, in each case, gave the general affirmative charge in favor of the State, the same being requested in writing, and the giving of this charge is assigned as error.

Tried before the Hon. J. R. TyroN. The appellant, Paul McQueen, was indicted and convicted for grand larceny. On the trial, the State introduced evidence tending to show that the defendant was guilty as charged. The defendant testified in his own behalf, and also introduced witnesses to his good character. The State then, in rebuttal, introduced generally, without objection, the record of the court showing that the defendant had been previously convicted of grand larceny.

Tried before the Hon. J. M. Cahmichael. This is a proceeding in bastardy commenced before a justice of the peace.

<p>Appeal from the Circuit Court of Cherokee.</p> <p>Tried before Hon. J. A. Bilbro.</p>

Tried before Hon. H. C. Speak. Tbe facts upon which the opinion in this case are based, are sufficiently stated in the . opinion. The defendant requested the court to give the following written charges, and excepted to its refusal to do so. (1.) The court charges the jury that if they' believe the evidence in this case, they must find for the defendant.

Heard before Hon. W. M. VValterip. On final settlement by W. P. Brown, administrator cle bonis nun of the estate of Joseph Brown, deceased, in the probate court of Franklin county, Mrs. M. E. King, one of the distributees objected to the allowance by the court of certain items of credit claimed by the administrator in his statement of account, which objections were overruled.

Tried before Hon. JoiiN A. Bilbeo. The facts upon which this case was tried, and the objections to the rulings of the court upon the admission of evidence, are shown by the opinion.

<p> Statutory Action of Ejectment. </p> <p>1. Execution of convey anees; delivery.. — Where after due signature and attestation of a conveyance, the grantor' files it in the probate office for record, this constitutes a sufficient delivery, completing the execution of the instrument.</p> <p>2. Construing deed absolute on face to be mortgage; mortgage by wife to secure husband’s debt.- — Where contemporaneously with the execution of a deed, a written agreement is made between the parties, reciting that the deed was executed in consideration of a specified debt due by the grantors, husband and wife, to the grantees, and providing that if the debt withinterest is paid by a named time, the grantors shall be reinstated in the possession of the land, but that should they fail to pay, the amount due with interest by such time, the grantees were to take full possession of the premises. The note evidencing the debt was surrendered on the execution of the deed, and the grantors were to remain in possession nntil the debt was payable, paying rent for a part of the .time; Held, that the deed and agreement are to be construed together, and so construed, show that the deed was in effect a security for a continuing debt, notwithstanding the surrender of the note, and it being shown that the debt was that of the husband and the property that of the wife, the deed is void.</p>

<p> Motion for -Nev> Trial,. ' </p> <p>1. Motion for new trial. — ’Newly discovered evidence.^-On a motion for a'new trial on the ground of newly discovered evidence, the affidavit must show not only the materiality of -the evidence, but also, (1) That the newly discovered evidence is not merely coumlative, and (2). That due diligence had been unavailingly used by the movant prior to the trial.</p> <p>2. Same. Corroborating affidavits. — On a motion for a new trial oir the ground of newly discovered evidence the motion should set forth the names of the witnesses who would testify to the facts alleged to have been newly discovered, and be accompanied by the affidavits of said witnesses as to what they would testify in f'eferenee thereto.</p> <p>3. Same.— Unavoidable absensence of counsel. — A. motion for a new trial on the ground of unavoidable absence of counsel should not be granted where it appears, that by the exercise of due diligence and prudence, counsel could have been present.</p> <p>4. Same. — Discretion of lower court. — The rule that the action of the lower cburt in granting or refusing a new trial will not be reversed unless it appear to be clearly erroneous, has no application where the facts are undisputed, and the only conclusion to be drawn is one of law.</p>

<p> Bill in Equity to declare Mortgage a General Assignment. </p> <p>1. General assignment; solicitor’s fees. — If the grantee of an instrument operating as a general assignment, having knowledge or information of the claim of unsecured creditors, repudiates the trust compelling the beneficiaries to sue for its enforcement, he becomes a delinquent trustee. As between trustee and cestui que trust, the trustee must bear the costs of litigation his delinquency necessitates, and when himself one of the beneficiaries, cannot complain that solicitor's fees were deducted from the aggregate fund covered by the conveyance.</p> <p>2. Register’s report; objections. — Where there is evidence before the register, his findings will not be disturbed on appeal unless the .court is prepared to say that they are palpably wrong.</p>

Tried before Hon. H. C. Speake. The facts of this case are very fully set out in the opinion.

Heard before Hon. J. K. McSpadden. The bill in this case was filed by Rowan, Dean & Go. against Lizzie A. Miller, in the chancery court of Calhoun county and sought to have set aside, as fraudulent and void against complainants, a deed to certain lands theretofore executed to defendant by her brother E. L. Vernon, on the ground that said deed was voluntaiy, and without a valuable consideration.

Heard before Hon. Thos. Cobbs. This bill was filed by the appellants, W. H. Stoyall, and F. A. Bostic, as administrators of the estate of R. W. Clay deceased, against M. A. Clay and the other heirs of said R. W. Clay. The allegations of the bill were in effect as follows : That in 1870 or 1871, R. W. Clay and M. A. Clay formed a mercantile partnership which continued until 1879, all the capital being contributed by R. W. Clay.

, Tried before Hon. H. A. Shaepe. This was an action by appellees against appellant on a promissory note. The complaint is as follows : “The plaintiffs claim of defendant the sum of two thousand dollars and interest due by a certain promissory note made by the defendant at Birmingham, Ala., on the 5th day of September 1893., and payable to the order of defendant, the maker thereof, on the 5th day of December 1893, at the Steiner Bros’. Bank in said city.

Heard before Hon. Thomas Cobbs. This bill was filed by the appellee, Thomas P. Wilson, against the appellant, Ezra L. Edmundson, and sought the specific performance of an award made by arbitrators under a submission made between the parties to the suit. All facts- necessary to the understanding of the opinion, are set out therein. Upon hearing, the chancellor decreed that the complainant was entitled to relief, from which decree the defendant appealed. 1.

Appea! from Gadsden City Court. Tried before Hon. JohNÜ. Disq,ue. The appellant Thomas L. Johnson recovered a judgment in the City Court of Gadsden against D. H. Johnson, upon which execution was issued, and on October 24th 1894, the execution was levied upon certain personalty as the property'of the defendant. Upon the day of the levy, the appellees, Nancy Johnson and L. M. Gordan made an affidavit claiming the property, and ’executed the requisite claim bond.

<p> Motion for application of proceeds of execution sale. </p> <p>1. Sale under junior execution; right to proceeds. — Wliere lands are sold under a junior execution, the title to the land passes subject .to the lien of all prior judgments or executions, and the money realized from such sale cannot be applied to the payment of a senior judgment or execution lien, but this doctrine does not apply to such sales of personality. . ■ .</p>

Tried before Hon. James A. Bilbro. This was an action of assumpsit commenced on the 7tli day of August, 1893, by the Bank of Guntersville, a corporation, against D. M. Webb and T. J. Butler. The complaint contained' three counts, each claiming two hundred and .six and 19-100 dollars. The-first count-claimed that-sum as due by -account on the 25th day of June, 1893 (?). The second was for money paid for de: fendants at their request by the plaintiff.

Heapd before Hon. S. K. McSpaddeN. • The facts are sufficiently stated in the opinion. (No brief came to hands of the reporter.)

Tried before Hon. James W. Lapsley. The facts upon which the opinion in this case is based; are sufficiently shown therein. The place of payment of the note is sufficiently certain.- — Rudolph v. Brewer, 96 Ala. 189 ; Bait r. Carr, 54 Ala. 112 ; Potter v. Sheets, 32 N. E. Rep., 811 ; Brown v. First Nat. Bank, 15 So. Rep., 435. The agreement for extension of the note did not affect its negotiability. — -Tiedeman Com.

<p>Appeal from Etowah Circuit Court.</p> <p>Tried before Hon. Jas. A. Bilbro.</p> <p>The facts of this case are sufficiently stated in the opinion.</p>

Tried before Hon. John W. Bishop. This is a statutory action of ejectment, which was brought by the appellant against the appellees, Green and Lizzie Barclay, on February 9th, 1894.

<p>Appeal from Probate Court of Colbert.</p> <p>Tried before Hon. Fox Heljaney.</p>

Tried before the Hon. L. F. Box. The facts of this case are sufficiently stated in the opinion.

Tried before Hon. N. D. DeksoN. The evidence introduced in this cause, and the rulings thereon are sufficiently shown by the opinion. The court refused to give the following charge requested in writing by the plaintiff; “If the jury believe from the evidence, that in consideration of the defendants promise under the contract, to pay plaintiff's $100, the latter released Lucy Thomas and G-.

Tried before the Hon. J. R. TysoN. Action by R. H. Miller against B. L. Anderson on an award. The complaint is as follows: . “The plaintiff claims of the defendant the sum of two hundred and ninety-six and 82-100 dollars, due by an award made by certain arbitrators, to-wit, J. W. Frater, J. I. Dixon, S. J. Foschee, on the 6th day of February, 1892, which said submission referred to said arbitrators matters in dispute between said plaintiff and defendant.

Tried before Hon. James J. BaN-ks. This was an action upon a policy of fire insurance brought by the appellant against the appellee to recover insurance up m prop rty destroyed by fire.

<p> Action by indorsee against indorser to recover money paid on' raised check. </p> <p>1. Expert testimony. — It is right, and in fact necessary that expert testimony should be subjected to every legitimate test in order to properly weigh it.</p> <p>2. Forgery; evidence; competency. — An unsuccessful attempt by one person to forge a name or raise a check, is not competent evidence that another person did not succeed.</p> <p>3. Excluded evidence; improper conduct of counsel in reference thereto. —After evidence has been excluded, counsel are not justified in persisting in propounding questions in reference thereto, in the presence of the jury, and such improper conduct demands the prompt interference of the court.</p> <p>4. Same; setting aside verdict. — Whenever wrong or injurious impressions are sought to be made on the minds of the jury by improper arguments, or by improper questions of counsel, the verdict should be set aside on motion of the opposite party.</p> <p>5. Discussion of admissibility of evidence; withdrawal of jury; discretion of court. — It is within the discretion of the court to have the jury retire from the court room so as not to hear the discussion in regard to the admissibility of evidence.</p>

Appel from Talladega Probate Court. Tried before Hon. G. K. Miller. On December 13th, 1893, the appellee, Susan Wood, as executrix of the will of her deceased husband, John H. L. Wood, filed her accounts and vouchers for a final settlement of her administration, the estate having been previously declared insolvent. Upon such settlements, the appellant and certain other creditors of the estate objected to the following credits claimed by the executrix.

Heard before Hon. S. K. McSpáddeN. This bill was filed by the appellees, Draper Mathis & Co. against the appellants Benjamin Clement and Tem-py Clement, who were husband and wife, and sought •the foreclosure of two mortgages executed to them upon the property of the wife, alleging that the debt secured was the debt of the wife.

Heard before Hon. Wm. W. WilkinsoN. The facts of this case are sufficiently stated in the opinion. 1. The bill does not aver facts sufficient to authorize the court to infer fraud, and grant relief, and the decree should be reversed regardless of the objections made below. — Flewellen v. Crane, 58 Ala. 629. 2. The averments of the bill as to fraud, are mere legal conclusions, and should be disregarded. — Louch-eim v. First Nat.

<p>Appeal from Tuscaloosa Chancery Court.</p> <p>Heard before Hon. Thomas Gobbs.</p> <p>' The. facts are-sufficiently-stated ih the-opinion.</p>

- Tried before the Hon. J. A J’Bilbro. : '•'This' action •-wa‘s *’originally brought • by J. H. Tuck against'-'C'.':E.'Cole,' before a justice of the peáce, and thence appealed to the circuit court, where it was tried bbfbre thé judge without the intervention of a jury; the amount involved being less than twenty dollars.

Tried before Hon. James J. Bakes. The facts of this case are fully stated in the opinion. The charges requested by the defendant, and refused, were as follows: (1.) If the jury believe the evidence, they must find for the defendant. (2.) If the jury believe the evidence, the must find for the defendant under the second count of the complaint. (3.) If the jury believe the evidence in this case, they must find for the defendant under the third count in the complaint.

Heard before Hon. Ti-iomas Cobbs. This bill was filed by the appellant against the appel-lee on Jane 6th, 1895, and sought to have declared unreasonable and void, an ordinance of the City of Bessemer, requiring a certain portion of the complainants track to be lighted at certain times in a specified manner, and also, to enjoin the defendant from enforcing said ordinance, and to enjoin the further prosecution of an employee of complainant for a violation of such ordinance.

<p>Aáp-EÁi& from.the- Circuit-Court. of-Geneva.</p> <p>Tried- before- the Horn j". W'. Foster..</p> <p>The--facts- are- stated in the opinion.</p>

This original petition for a writ of prohibition was filed on December 17th, 1895, by E. W. Rucker, and set for:h that .on the 27th day of November, 1895, one J0 La Motte Morgan filed in the circuit court of Jefferson county, an application to compel the petitioner to answer certain questions propounded to him as a witness under a commission issued out of the superior court of Cook county, Illinois, in a suit therein pending between said Morgan and others.

<p>Appeal from Henry Circuit Court.</p> <p>Tried before Hon. J. M. Carmichael.</p> <p>The facts are sufficiently stated in the opinion.</p>

Tried before Hon. J. M. Carmichael. This action was brought by tlie appellees against the appellant, to recover for the use and occupation by it of a certain store house in the city of Eufula, for a term from September 1st, 1892, to September 1st, 1893.

Tried before Hon. Jeke N. Williams. The bill in this case was filed by the American Freehold Land Mortgage Co. against the appellees, W. G. Thornton and M. J. Thornton, his wife, and the Loan Co. of Ala., and [sought the foreclosure of a mortgage upon certain lands in Dale county, alleged to have been executed to it by the said W. G. and M. J. Thornton on January 31st, 1891, and which purported to have been regularly acknowledged by the mortgagors.

' TRIED before Hon. J, R. Tyson. The facts are sufficiently stated in the opinion. (No brief came to the hands of the reporter.) If one ground of a demurrer is good, the ruling of a lower court sustaining the demurrer will be upheld. — Guilford v. Kendall, 42 Ala. 651. The complaint was insufficient. — Gooden v. Moses, 99 Ala. 230.

<p>Appeal from Geneva Chancery Court.</p> <p>Heard before the Hon. Jebjg N. Williams.</p> <p>The facts up.on which the 'opinion is based, are sufficiently stated therein.</p>

Tried before Hon. J. B,. TysoN. This was an action of trover, brought by appellee against the appellants, to recover damages for the conversion by them of certain timber, alleged to have been cut from the land of the plaintiff.

. Tried before Hon. J. W.'.Foster. This cause grew out of a suit by McKermon .:'&;'I)artiel against appellee/- brought originally in; 'a justice’s court and carried by said McKennon & Daniel to the circuit court by appeal. Appellant was surety on this appeal bond.

Heard before Hon. Jebe N. Williams. Mack Ward, and other heirs of Wm. J. Ward, deceased, filed this bill against Jno. G. Ward and others for the purpose of having set aside a sale made by J. G. Ward under a power of sale in a mortgage, and for a statement of accounts, and redemption. The averments of the bill were to the effect that in 1888, Wm. J. Ward executed to Oates & Oowan, a mortgage on certain lands therein described; that Wm.

.Tried before Hon. J. M. Carmichael. The facts of this case are stated in the opinion.

Tried before Hon. J. R. Tysox. The allegations of the complaint in this case are shown in the opinion. The evidence of the p'aintiff was to the effect that the property of the plaintiff, which was situated near the line of the defendant’s railway, was destroyed by fire on the morning of November 26th, 1893. The fire originated in a barn, filled with fodder, which barn had an opening in the side opposite the railroad.

Heard before Hon. We. W. WilkersoN. The bill in this case was filed by the appellant,’the Alabama National Bank, against the Mary Lee Coal and Railway Co. and the Mercantile Trust and Deposit Company of Baltimore, seeking to have declared fraudulent and void as to it, as a creditor of the Mary Lee Coal & Ry. Co., a decree and other, proceedings in a cause of said Mercantile Trust and Deposit Co. against said Mary Lee Coal & Railway Co., and: for other relief.

Tried before Hon. J. H. McGuire, Special Judge. This is an action of detinue brought by W. L. Thorn-hill against Martin O’Rear to recover a watch. The defendant interposed the [ilea of the general issue. The affirmative charge was asked by the plaintiff and refused.

Heard before Hon. Thomas Cobbs. This was a bill filed by the appellant against the heirs at law of James McGee, who had died intestate, and whose estate was alleged to be insolvent, and sought to set aside as fraudulent a voluntary conveyance made by decedent, iu bis life time, to the defendants, and subject the same to payment of complainant’s debt against the intestate. The complainant was a simple contract cred-idtor.

Heard before Hon. Thos. Cobbs. The facts are sufficiently stated in the opinion. 1. The decree sustaining demurrers to appellants petition, and dismissing the same, was a final decree, which would support an appeal. — Code § 3611; Adams v. Sayre, 76 Ala. 509. 2. A bill haying amendable defects should not be dismissed for want of equity.- — Seáis v. Robinson, 75 Ala. 363; Glover v. Hambree, 82 Ala. 327. 3.

Heard before Hon. J. N. Williams. The facts of this case, as far as is necessary to set them out, may be stated, as follows: In 1888, John Nored of Conecuh county died, leaving a will appointing his widow, Sarah J. Nored, and Geo. W. Pryor his executors. On 15th. Oct. 1888, the probate court of said county, appointed these parties executors, who gave bond with M. W. Kimberly, S. J. Bolling, T. W. Peagle, and Wm. M. Martin, the appellant in this case, as sureties thereon.

Appeal, from Mobile Probate .Court..' Tried before Hon. Price Williams-, Jr-.' • Tbe facts of this case are. sufficiently stated in tbe-opinion. No brief found, in the record for the appellee,

' Tried before Hon. H. A. Sharpe . The facts of this case are sufficiently shown by the opinion.

Tried before Hon. JNO. R. TysoN. This action of unlawful detainer was brought by the appellant against appellee on 15th February, 1894, and tried upon pleas of the general issue and the statute of limitations.

Tried before Hon. J. E. Tyson. This action was brought by the appellant as administrator of Virgil Mowdy, to recover damages from the appellee for causing his- death. The substance of the various counts of the complaint is shown by the opinion.

Tried before Hon. ,T. R. Tyson. This suit, was brought by the appellant against (ho appellee, and sought, to recover a penalty for the carrying on by the defendant in the city of Montgomery of a building and loan business. The defendant, in its plea, set up an act of the legislature, regulating building and loan associations, (Acts § 1892-93 p. 665) alleging that it did business throughout the state, and had paid the license therein required.

Tried before Hon. T. M. Arrington . The Standard Dry Kiln Co. brought this action against the Cain Lumber Co. as a partnership, and against'the individuals alleged to compose it, and sought to recover damages from the defendants for their failure to accept certain machinery ordered by them from the plaintiff. The defendants, Cain and Moore, interposed a plea denying any partnership such as that alleged in the complaint, and Cain alone plead non est factum.

Tried before Hon. T. M. ArriNgtoN. The appellee, S. H. Westcott, brought this action against Alex Rice, seeking to recover a penalty of $200 from him for a failure on his part to enter satisfaction on the record of a judgment.

<p>Appeal from Birmingham City Court.</p> <p>Tried before Hon. H. A. Sharpe.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>(No brief in record.)</p>

Heard before Hon Jere N. Williams. This bill was filed by Louis Steiner and Nathan Lob-man, under the firm name of Steiner & Lobman, and Chas. A. Stern and Abe Kraus, under the firm name of C. A. Stern & Company, formerly Stern & Kraus, as creditors of C. D. & S. E. Henderson, doing business under the name of Peters Store Company, formerly Henderson Bros., for the benefit of themselves and any other creditors who may see fit to make themselves parties.

Tried before Hon. Price Williams. The appellant, William Barnewall, propounded for probate, an instrument purporting to be the last will of his deceased wife, Mary E. Barnewall, wherein the proponent was named as executor. Eveline Murrell and others among the next of kin of the said Mary E. Barne-wall, contested the validity of the instrument as her last will, on the ground, that the instrument was not duly executed by her.

Cross-Appeals from Montgomery Chancery Court. Heard before Hon. Jere N. Williams. The original bill in this case was filed by H. W. Barrett & Co. on March 1, 1894, and several amendments were afterwards filed. The bill as amended alleges that Poliak Co. was a mercantile corporation; that prior to January 8, 1894, it had been conducting a large business in the city of Montgomery, Ala.

Tried before Hon. ¥m. S. Anderson. This action was brought by the Mobile Furniture Commission Co. against J. W. Little and D. R. Burgess as sureties up >n a garnishment bond executed by William Prufrock in aid of a pending suit by him against the appellant. The complaint contained tw) counts, the first alleging that the garnishment was wrongfully sued out, and the second, that it was vexatious as well as wrongful.

Tried before Hon. James T. Jones. This suit was begun by original attachment against J. S. Price by the appellees, Goetter, Weil & Co. The writ was returned by the sheriff, “no property found” and thereupon the plaintiff sued out a writ of garnishment against the appellant, Planters & Merchants Bank.

Tejed before Hon, J. R. TysoN. The facts of this case are sufficiently stated in the opinion. Jurisdiction haying attached under the petition to sell the land, no irregularity in subsequént proceedings can be raised on collateral attack. — Fields r. Golds-by, 28 Ala. 218 ; Wilburn v. McCalley, 68 Ala. 436 ; May v. Maries, 74 Ala. 249. Cited Ligón v. Ligón, 84 Ala. 555; Dugger v. Tayloe, 60 Ala. 519 ; Anderson v. Bradley, 66 Ala. 263.

Heard before Hon. T. M. Arrington. The facts of this case are sufficiently shown in the opinion. . Eyen though the appellant had been guilty of a contempt, it can question the authority of the court to make the appointment of receivers. 1 Dan. Chy. Sec. 505 ; Wilson v. Bates, 3 M. & C. 197 ; Ghatterton v. Thomas, 36 L. J. Ch. 592 ; Fry v. Earnest, 12 W. R. 97 ; Hazard v. Durant, 11 R. I. 195 ; A. & K-. R. R. Go. v. A.R. R. Go., 49 Me. 398.

Tried before Hon. J. M. Carmichael. This action was brought by the appellee against the appellant on September 1st, 1894, for the purpose of recovering the statutory penalty of $200.00, for the failure of the defendant to enter on the record thereof, satisfaction of a mortgage executed to him by the plaintiff.

<p>Appeal from Montgomery Chancery Court.</p> <p>Heard before Hon. Jere N. Williams.</p> <p>The facts of this case are sufficiently stated in the ©pinion.</p>

Heard before Hon. Jebe N. Williams. ■ The bill was filed by James V. Ashurst, the appellee, to enforce the specific performance of a written contract for the sale of land. Prom it, it appears, that A. B. Peck, under an arrangement with Charles F. Asjhurst, purchased from W. T. Burney a plantation containing 793 acres of land, lying and being in Tallapoosa county, Ala., known as the Burney place, and described in a deed from Burney and wife to said A. B. Peck.

Heard before Hon. Jeke N. Williams’. The facts of this case are sufficiently stated in the opinion. Section 1805 of the Code of 1886 rendering inoperative conveyances by married women of their stock in incorporated companies unless the conveyance is attested by two witnesses, or acknowledged, is repealed by the act of February 28th 1887, now § 2346 of the Code. — Sutherland on Stat. Con. §§ 138, 154, 156, 161; Jordan v. Smith, 83 Ala. 301; Rooney v. Michael, 84 Ala. 589.

<p> Bill to enjoin Writ of Possession and Execiotion at Law. </p> <p>1. Unlawful detainer; denial by tenant of landlord’s title. — Where a tenant is sued by his landlord from whom he acquires possession, for an unlawful detainer, the tenant cannot defend against either the possession, or claim for damages for detention, on the ground that the title of his landlord has terminated, or been extinguished; nor is the tenant permitted to show as a defense, that he acquired ownership and title and the right of possession from his landlord during the rental term, or that the right of the landlord, on any account, has expired subsequent to the date of the contract of renting.</p> <p>2. Injunction of proceedings in unlawful detainer. — Where a tenant goes into possession of land under a rental contract with a mortgagor, and daring the term, the mortgage is foreclosed, and on demand, the tenant attorns to the purchaser at the mortgage sale, pays him rent,- and remains in possession under anew contract of renting, made with the purchaser, and the mortgagor then brings an action of unlawful detainer against the tenant, recovering a judgment for the possession of the land and damages for its detention, a court of equity has no jurisdiction on the bill filed by the tenant, to enjoin the issue of a writ of possession, or execution for the damages, even though the mortgagor be insolvent. (Commas', J., dissenting.)</p>

Heard before Hon. Jas. W. Lapsley. The facts of this case areTsufficiently stated in the opinion. The bill is without equity, in that it fails to show that the complainant had complied with the laws regulating and licensing the practice of medicine. Christian v. Am. F. L. & M. Co., 89 Ala. 188 : Reel-v. Overall, 39 Ala. 138 ; Cockrell v. Curley, 26 Ala. 405 ; MeQhee v. Lindsay, 6 Ala. 20 Fowler v. Scully, 13 Am. Rep. 708.

Tried before Hon. JohN C. AndersoN. This is a statutory action of detinue brought by ■ the appellant against the appellee, in the Circuit Court of Clarke county, for the recovery of 112 telegraph poles. At the commencement of the suit the plaintiff made affidavit and gave bond and the property (96 poles) was seized by the sheriff. The defendant failing for five days to give bond, the property was delivered to the plaintiff upon his giving the bond prescribed by law.

Heard before Hon. J. N. Williams, Chancellor. The bill alleges that Poliak Company, a corporation carrying on a mercantile business in the city of Montgomery, Alabama, having become insolvent and unable longer to conduct its business, executed a deed of assignment on January 8th, 1894, to W. K. Pelzer and Sigmund Roman.

Tried before Hon. JotiN H. Disque. On November 14th, 1892, the appellee recovered a judgment against T. J. Ramey and J. B. Ramey, upon which execution was issued on the 25th of the same month, and on that day was levied upon 800 bushels of corn, as the property of the defendant T. J. Ramey.

Tried before Hon. S.H. Sprott. This was an action brought by the appellant against the appellee and the sureties on his official bond as treasurer of Tuscaloosa county, and sought to recover for a breach of official duty in failing and refusing to pay certain witness certificates owned by the plaintiff.

Tried before Hon. H. A. Sharpe. “ This was a common-law action of ejectment, brought by the appellant against the appellee. The defendant interposed a plea of the general issue, and also a special plea of adverse possession of ten years. Both parties claim through one Wiley B. Godfrey. The proof showed that in 1879 Godfrey filed a pre-emption claim for the lands in controversy, paying the preliminary fee.

Tried before the Hon. N. D. DensoN, The appellees, Harwell and Cl art recovered judgments against R. W. Milner, under which executio is were levied upon a lot of corn, as the property of the defendants. The appellants, Pugh Stone and Co. thereupon interposed a claim to such corn, and an issue to try the right of property therein, was made between them.

<p> Motion to Vacate Sheriff’s Sale. </p> <p>1. Homestead exemptions. — Where an attachment is- levied on land, and after a judgment in the attachment suit and before the levy of execution thereon, the defendant claims the land as exempt, and flies the claim in the probate court and also lodges it with the officer levying the attachment, which is not contested, a levy of execution upon, and sale of the land thereunder is void.</p>

Tried before Hon. T. M. ArringtoN. All tbe material facts of tbis case are set odt in the opinion.

Tried before Hon. Jas. J. BANKS. . The opinion sufficiently shows the facts. The demurrers to plaintiff’s plea should have been sustained. — Mayberry v. Leech, 58 Ala. 339 ; Culver v. Hill, 68 Ala. 66; Washing.ton v. Timberlake, 74 Ala. 259; Dougherty v. Am. Un. Tel. Co., 75 Ala. 168. No brief for appellee in the record.

Tried, before Hon. James J. BaNKS. ■ Suit by Thomas Purvis against Woodlawn, a municipal corporation. The complaint in this cause had the following counts : (1.) On a bill of exchange drawn by John Sutcliff upon, and accepted by the defendant, payable to plaintiff, which was alleged to be due and unpaid. (2.) On an account stated between John Sutcliff and the defendant, which was alleged .to be the property of the plaintiff.

The petitioner was arrested and tried before the may- or of the city of Mobile upon affidavit, charging him with an assault and battery. Upon trial he was convicted, and judgment was made as set out in the opinion. Under a mittimus issued on that judgment, he was held in the jail of Mobile county. He brings this petition to be discharged therefrom. . No brief on file, for, petitioner.,

' Appeal from Walker Circuit Court. Tried before Hon. Jas. J. BaNes. The complaint in this action contained two counts. One for the failure by the defendant to deliver to R. H. Sanford & Co. certain money received by it from plaintiff for that purpose, and the other for money had and received by defendant for plaintiff’s use. The general issue and a special plea was interposed by the defendant.

. Appeal from Cherokee Circuit Court. Tried before Hon. Joi-m B. Tally. The facts of this case as betring up m the charges given and refused, and upon the points decide l, are sufficiently stated in the opinion.

Heard before lion. J. N Williams. Tlie f.ic.s of this case are fully set out in the opinion. Laches cannot be imputed unh ss twenty years had elapsed between the last settlement, of Holmes and the filing of the bill. — Harrison v. Heflin, 54 Ala. 556.

Heard before Hon. S. K. MoSpaddeN. At the fall term 1885.of Elmore Circuit Court,Ella M. Smith instituted an action in the dature of an action of ejectment against W. S. McLean to recover fortv acres of land described in the complaint. After all the evidence was in, the suit was compromised between the parties. The plaintiff agreed to dismiss her suit and to execute to defendant a quit claim deed, and this was done. The consideration expressed in the deed was $300.

Heard before Hon. T. M. Arrington. Tlie facts are stated in the opinion. The failure on part of Abecrombie to deny the assertions of fact contained in 'the letter received by her from Reeves, amounts to an admission of the truth thereof.— Watson v. Byers, Q Ala. 393 ; Perry v. Johnston, 59 Ala. 651, The evidence showed a mortgage, and appellant had a right to redeem. — Hodges v. Thompson, 13 So. Rep. 679; Hughes v. McKenzie, 101 Ala. 415 Illgesv.

Tried before Hon. JOHN Moore. The complaint in this case, which was filed by appellants against the appellee, who was a married woman, conducting a mercantile business, contained two counts. One for goods, wares and merchandise sold and delivered, and the other on a stated account. The defendant interposed several pleas in substance as follows: 1. That she was a married women when the contract was made. 2.

Heard before Hon. W. W. WilkersoN. The bill in this case was filed on March 23, 1891, by Rebecca E. Denny, the. appellee, for the purpose of having dower assigned to her in certain lands in Jefferson county, specifically described in the bill, of which it was alleged Joab Bagley, who was her former husband, died seized.

Tried before Hon. J. T. JoNES. This was a statutory action of ejectment, brought by Braxton E. Carter and others, against George Chevalier. There was a judgment for the defendant, from which the plaintiff appealed. The facts are stated in the opinion.

Tried before Hon. Wm. S. ÁNDersoN. An indictment containing two counts, was returned against F. A. Howard. The first count charged him with larceny of a sheep, the property of William G. Prin-gle. The second count charges the defendant with marking or branding, or altering the mark or brand of such animal, with intent to defraud.

Heard before Hon. Wm. H. Tayloe. This bill was filed by Frederick G. Bromberg against John M. Yukers on January 9th, 1895. The material facts as alleged in the bill, are set out in the opinion. The prayer of the original bill was in effect that a decree be rendered settling the rights of the parties to the 52 feet of the lands described in the bill. The defendant demurred, on the ground that the bill showed that the complainant had no claim to the land in controversy.

Tried before Hon. N. D. DeNSON. The aboye cases are founded on similar facts, and are dependent on same assignments of error, and were argued and submitted together. The action is to recover the. statutory penalty for wil-fully cutting trees on plaintiff’s land without his consent.

Heard before Hon. Thomas Cobbs. The facts of this case are fully stated in the opinion. The complainants have an adequate remedy at law against Ware. Sykes v. First Nat’l Bank, 49 N. W. Rep. 1058'; Tierriian v. Johnson, 5 Pet. 597; Clark v. Thompson, 2 R. I. 146 ; Currier v. ILodgson, 3 N. H. 82; Scott v. Whitlaw, 20 Ill. 310. No brief, for appellee in record.

Heard before Hon. W. PI. Tayloe. This bill was filed by Mary E. Childress and her husband Jefferson V. Childress against Jas.

Tried before Hon. T. M. Arrington. This action was brought by John Eandolph for the use of Josephine Wilson, Matt P. Crittenden and Lester C. Smith, against Nathan Griel, and sought to recover of the defendant damages for his failure to comply with his bid at a sale of certain lands ordered sold by the probate court of Montgomery county for purposes of a-division among the joint owners. • The evidence showed that on April 24th, 1890, Josephine Wilson and her husband filed a…

Tried before Hon, F. C. Randolph. Tlie appellee, Emma Brinsfield, filed lier petition against appellant Charles Hillens and Kate Monfee, praying that certain lands described in the petition be sold for a..division between her and said Kate Monfoe.

Heard before Hon. J. M. Carmichael. The .facts are stated in the opinion. [.The suit was against the partnership only. JDollins & Adams v. Poliak & Co., 89 Ala. 351; Bolling & Son v. Speller, 96 Ala. 269; Bal-dridge v. Eason, 99 Ala. 516. cited 89 Ala. 351.

• Tried before Hon. Jno. II. Tyson. The appellant sued the appellee, declaring upon two counts, one in case, for interfering with a lien claimed by plaintiff, and the other in trover, for a conversion of »certain property. The object of the suit was to recover from the defendant, a balance due him by Livingston for advances. The material facts are contained in the opinion.

<p> Bill in equity to caned a deed as a cloud upon title. </p> <p>1. Conveyance of property of a married woman. — A wife may with the written consent of the husband, sell and convey her land in payment of her husband’s debt, but she cannot mortgage it, to secure his debt.</p>

Heard before Hon. W. H. Tayloe. This bill was filed by appellant against the appellee, and sought to recover the proceeds of a policy of insurance issued upon the life of appellants intestate, Geo. W. Agnew.

Tried before Hon. Jas. J. Banks. This was an action of trover brought by the appellants against the appellees, and sought to recover damages for a conversion of a lot of mantels. The cause was tried upon a plea of the general issue.

Teied before Hon. Jas. A. Bilbko. This action was begun by the appellant against the ap-pellees by a complaint containing two counts ,one in trover and the other declaring on the case and was tried upon the general issue,. The evidence showed that one E. M. Cox was a member of Cox, Taylor & Co., a partnership composed of himself and two others, each being entitled to one-third interest therein.

Tried before Hoa. JNO. B. Tally. This was a common-law action of ejectment, brought by the appellant against the appellee on November 18th, 1889. Several counts were afterwards added by amendment, the plaintiff’s demise being laid in various lessors. Defendant filed several special pleas, together with the general issue, to some of which pleas demurrers by the plaintiff were overruled.

Tried before Hon. JoiiN B. Tally. This was an action of unlawful detainer, brought by appellee against the appellant. The defendant had rented of the plaintiff the premises in controversy for a term begining January 1st., 1886, and ending on January 1st 1891, under which lease the defendant went into possession. The action was begun in a magistrate’s court on November 7th 1891. The opinion sets out such parts of this lease as are necessary to be shown.

City Court. Tried before Hon. Jas. W. Lapsley. This action was brought by Anna M. Vinton against E. M. Lewis, J. M. Ledbetter and Ledbetter Co. Land and Loan Association, and was based upon a promissory note executed to the plaintiff by E. M. Lewis, and it is alleged in the complaint that J. M. Ledbetter who was a representative of the Ledbetter Co. Land and Loan Association, and the plaintiff’s agent in making the loan evidenced by the note, did for the purpose of making…

Tried before Hon. J. M. Carmichael. This was a suit by Robert Harper to recover from Holloway & Gilchrist, merchants in Geneva, Alabama, a sum of money deposited by plaintiff with defendants for safe keeping. At the time of making the deposit the defendants issued to plaintiff a receipt in the following words, “Nov. 27 1889.

<p> Bill in Equity by a Surviving Husband for sale for Division Between Himself and Infant Child of his Life Estate and the Infant’s Reversion in Lands of his Deceased Intestate Wife. </p> <p>1. Estate of infants — Jurisdiction of equity. — Courts of .equity llave original jurisdiction to order the sale of any interest of an infant in lands, whatever the nature of such interest, whenever it clearly appears that such sale would inure to the real advantage of the infant ; and a sale may be ordered not only for the purposes of maintenance, and education, or to remove incumbrances, but also for purpose of reinvesting the proceeds of the sale.</p> <p>2. Same. Sale for reinvestment, when will be ordered by courts of equity.- — Sales of an infant’s interest in lands, for mere purpose of reinvestment are generally confined to cases where the lands are deteriorating in value; or because they do not yield sufficient income to keep down burdens' to which they are liable, or where the income therefrom is greatly disproportionate to the market value of the property.</p> <p>3. Same. — -American Mortuary tables not applicable in determining the advisability of the sale of an infant’s estate in lands by a court of equity, for purpose of reinvestment. — In the event of an actual necessity for the sale of an infant’s lands a court of equity in considering an order of confirmation, would look to the Mortuary Tables in ascertaining the value of the reversion; but in determining the question as to whether it would be to the interest of an infant that his lands should be sold for reinvestment, the court engages in no speculations, it indulges in no inferences, however probable, and for this purpose the Mortuary Tables will not be looked to.</p>

Tried before Hon. Leroy F. Box. The evidence and the rulings of the court thereon sufficiently appear in the opinion. The court at the request of plaintiff gave the following written charges.

This was an action by Steven W. Davis and his wife against the Louisville & Nashville Railroad Company for damages for killing a mare, the joint property of plaintiffs, by the wrongful act of defendant’s servants in the careless and negligent operation and running of defendant’s locomotive and. train.

Tried before Hon. James T. Jones. Mary J .Murphree recovered a judgment against the city of Mobile and garnishments were issued thereon-. The garnishees put in answers, and the plaintiff moved for a judgment against each of them on their answer. The motion was denied and the garnishees discharged. There are three barriers t-o the jurisdiction of the court to grant a motion of judgment debtor to discharge the garnishees pending contest of answer. 1.

Tried before Hon..W. W. WilxersoN. The facts appear in the opinion. An action for money had and received may be brought where the defendant has sold or disposed of property belonging to plaintiff, although defendant has not received cash thei'efor but has taken property or the obligations of third parties. — Strickland v. Burns, 14 Ala. 511; Hughes v. Strinqfellov), 15 Ala. 324; Barnett v. Warren & Co., 82 Ala. 557.

<p>Appeal from Montgomery City Court.</p> <p>Tried before Hon. T. M. Arrington.</p>

<p>Appeal from the Chancery Court of Dale.</p> <p>Heard before the Hon. Jere N. Williams.</p>

<p>Appeal from Birmingham City Court.</p> <p>Tried before Hon. ¥m. W. Wilkerson.</p>

<p>Appeal from Circuit Court of Jefferson.</p> <p>Tried before Hon. Jas. J. BANKS.</p>

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

<p>Appeal from the Birmingham City Court.</p> <p>Tried before the Hon. H. A. Sharpe.</p>

<p>Appeal from Birmingham City Court.</p> <p>Tried before the Hon. Wm. W. Wilkerson.</p>

<p>Appeal from Circuit Court of Cullman.</p> <p>Tried before Hon. H. C. Speaee.</p>

<p>Appeal from Coffee Chancery Court.</p> <p>Heard before Hon. Jere N. Williams.</p>

<p>Appeal from Clark Circuit Court.</p> <p>Tried before Hon. James T. Jones.</p>