Volume 109 — Alabama Reports

<p>Appeal from the Circuit Court of Bibb.</p> <p>Tried before the Hon. .John Moore.</p>

<p> Indictment for Gaming. </p> <p>1. Gaming; relevancy of evidence on inquiry whether the house where the game was played was a public house under the statute. — On a trial under an indictment for gaming, a witness for the state having testified without objection on the part of the defendant that the latter and others named played cards, etc., at his house, without his consent and against his objection, several times within the period laid in the indictment, it was error to allow the witness, against the objection of the defendant to state that he (the witness) was at that time ‘‘an object of charity, and lived on what his little girl could obtain by begging from the white folks, and that he was then flat Of his back on the floor, that he had had his leg frozen, and that his pants were stuck to liis legs” — this evidence not being pertinent to the inquiry whether the house was a public one under the statute.</p> <p>■ 2. Election; when prosecutor will be compelled to make. — On the trial of an indictment for gaming, witnesses for the State having testified that defendant at various times, within the timelaid in the indictment, played at games of cards at witnesses’ house, and bet on said games, it was error to deny a motion of the defendant to require the solicitor to elect which of the several acts of gaming deposed to by the witnesses he would prosecute for.</p> <p>3. Charge of Court; how presented for review on appeal. — The indorsement “Given” or “Refused,” with the signature of the trial judge, on charges requested, does not make them a part of the record for the appellate court. They can be presented for review on appeal only by incorporation in the bill of exceptions.</p> <p>4. Remarks of counsel; review on appeal. — Where the bill of exceptions shows merely that the party objected and excepted to remarks of opposing counsel, nothing is presented for review on appeal. The objection is properly addressed to the presiding judge, and, if a review of his ruling is desired, an exception should be reserved, not to the remarks, but to the action of the court on the objection.</p>

<p>Appeal from the City Court of Bridgeport.</p> <p>Tried before Hon. ¥i. L. Stephens.</p>

Clair. Tried before the Hon. George E. Brewer. The appellant, John Buchanan-, was convicted under the indictment mentioned in the opinion, and appeals.

Tried before D. C. Blackwell, Esq., Special Judge.' The appellant, Henry Evans, was jointly indicted with Ben Crawford, for the murder of A. M. Palmer, “alias Amasa, alias Mace Palmer.” The indictment charged murder in the second degree. A severance was had, on the motion of the defendant Evans, and he was put on trial. The testimony ■ for the state tended to show that on the night of the killing efsaidA.

<p>Appeal From the City Court of Montgomery.</p> <p>Tried before the Hon. Thomas M. Arrington.</p>

Tried before the Hon. John S. Leeper. The facts of the case are sufficiently indicated in the opinion. The title of the act approved February 18, 189.5, does not “clearly express” the act which the first section amends, but names an act entirely different from the act amended. — Acts 1894-95, p. 1088; 3 Brick.'Dig. p. 132, §§ 8.1 to 87.

Tried before the Hon. George E. Brewer. This was a bastardy proceeding against the appellant. The warrant, with affidavit attached, under which he was arrested, was as follows : “The State of Alabama, Calhoun County. Justice Court.

Tried before the Hon. Wm. S. Anderson. The appellants, Andrew Givens and John Parker, were indicted, tried, and convicted of the offense of robbery.

Tried before the Hon. W. R. DeLoach. The prosecution in this case was commenced in the County Court by the following affidavit: “Before me, W. R. De Loach, as judge of the county court, in and for said county, personally appeared Wood-son S. Gulley, who, being by me duly sworn, says on oath, that he has probable cause for believing and does believe that before the making of this affidavit, Frank Henderson, with the purpose to hinder, delay or defraud affiant, who had a…

Tried before Hon. Tiros. R. Rouli-iac. The indictment in this case is as follows : “The grand jury of said county charge that, before the finding of this indictment, that a game was played at cards or dice, and that Sam Wickard played at said game with cards or dice, or some device or substitute for cards or dice, at a tavern, inn, storehouse for retailing spirituous liquors, or house or place where spirituous liquors were at the time sold, retailed, or given away, or in a…

Tried before the Hon. J. W. Foster. The appellant, Felix Ashley, was indicted, tried and convicted for bigamy. Exceptions were duly reserved to the rulings of the trial court which are stated and considered in the opinion. The defendant also excepted to the court’s refusal to give the following written charge requested by him: “If the jury believe the evidence they will find the defendant not guilty.” cited Cotton v. Rutledge, 33 Ala. 110 ; Woodv.

<p>Appeal from the Criminal Court of Pike.</p> <p>Tried before the Hon. William H. Parks.</p>

Tried before the Hon. John S. Leeper. . The plea of former jeopardy, described in the opinion, was demurred to on the following grounds : (1.) “Said plea fails to negative the existence of any necessity for such withdrawal as the law authorizes to sustain such plea. (2.) The said plea shows that the defendant absented himself from the court, and that in consequence thereof the cause was withdrawn from the jury.” The court sustained this demurrer.

Tried before the Hon. Wm. H. Parks. The appellant, L. C. Wheeler, was convicted on the charge that he “did unlawfully, maliciously or negligently break a fence, the property of D. Boutwell, against the peace and dignity of the State of Alabama.” On the trial, as shown by the bill of exceptions, Dixon Boutwell, the prosecutor, testified that, before the prosecution was instituted, the defendant knocked down with his ax a fence, which was the property of the'witness and was on…

Tried before the Hon. Tíios. R. Roulhac. At the June term, 1893, of the District Court of Lauderdale county, the grand'jury returned an indictment, which charged “that, before the finding of this indictment, Wiley Wesson sold, bartered, or exchanged spiritous, vinous, or malt liquors, without a license, and contrary to law, against the peace and dignity of the State of Alabama.” This indictment was filed in open court July 20, 1893.

Tried before the Hon. John Moore. The appellant, Howard Williams, was convicted of rape, and appeals. ' In selecting the jury, J. T. Chapman, one of the special jurors drawn to try the case, on his examination by the court as to his qualifications, stated that he was a member of the grand jury which found and returned the indictment against the defendant.

Tried before the Hon. Joi-in S. Leeper. This was a prosecution of the appellant, William S. Harper, for obstructing a public road, and was instituted in the County Court of Shelby county on an affidavit made before H. E. Reynolds, a notary public and ex officio justice of the peace of that county, who also issued the warrant of arrest, returnable into the County Court.

Tried before the Hoü.'Thos. R. Roulhac. The appellant, Bill Brown, was indicted and tried for the murder of one James Foster, was convicted of murder in the first degree, and sentenced tobe hanged.

This was an original petition for the writ of habeas corpvs, filed in this court on January 27th, 1896, by Robert S. Espalla.

Tried before the Hon. H. C. S peake. This was an action by P. P. Powell, the appellant, against George R. Wade, the appellee. The complaint contained the common counts, and a special count in which the amount sued for was claimed on a contract alleged to have been executed for the plaintiff, by his agent, with the defendant.

Tried before the Hon. J. M. Carmichael. This was an action by E. Goddard & Sons, a private corporation, against Barton Garner and others, partners composing the firm of Garner Bros. The complaint contained the common counts. The claim of the plaintiff on the trial was that it had- sold a car load of flour ■ to the defendants, through W. B. Goodbread & Co., brokers and commission ‘ merchants. The defendants denied that they had purchased the flour.

Heard before the Hon. Jere N. Williams. The nature of the bill in this case is stated in the opinion. The answer set up, by way of plea, that the complainant had, at the time of the death of her husband, a statutory separate estate, which, exclusive of the rents, income and profits, was equal to or greater in value that her dower interest in said lands and distributive share in her said husband’s estate. Exceptions to this plea, for insufficiency, were overruled.

Heard before the Hon. S. K. McSpadden. The bill in this case was filed November 28, 1893, by R. L. Vansandt, the appellant, against V. L. Weir and his wife, Nannie Weir, the appellees.

Tried before the Hon. W. W. Wilkerson. The appellee, the Alabama Insane Hospital, a corporation, brought this action against the appellant, Catherine McAnally, and E. F. Enslen, upon a bond executed by them, with a penalty of $500, upon certain conditions, among which was the following ; “Whereas Patrick McAnally is about to be admitted as a paying patient into the said hospital, now if while he shall remain therein the undersigned shall constantly supply him with suitable…

Heard before the Pión. James E. Horton. William H. Sykes died in Limestone County, Alabama, on February 10, 1892, and on April 4, 1892, the appellee, John H. Davis, was appointed by the Probate Court of said county administrator of his estate. On December 1, 1893, the administrator reported the estate insolvent; and on May 28, 1894, a decree was rendered declaring the estate insolvent, and directing’the administrator to make a settlement.

■ Appeal from the. Chancery Court of Marshall. Heard before the. Hon. S.- K. McSpadden. The averments of the bill in this case showed that the complainants and the defendants had unequal interests in the tract of land in which they were tenants in common.

<p> Action for Damages, for Killing Cattle by Railroad Train. </p> <p>Injuries to cattle by passing railroad train; affirmative charge. — In an action to recover damages for the killing of cattle by a passing railroad train, none of plaintiff’s witnesses testified that they saw the killing, but their testimony showed that the train was running at its usual speed, and that the killing occurred on a fill, at a point from which the track runs straight a distance of 280 steps in the direction from which the train came; and the defendant’s engineer testified that the engine. was in good condition • that he was looking ahead; that when he first saw the cattle they were running ouf on the fill in front of the engine; that he could not see them sooner, and that they were sojclose that he could not possibly avoid killing them. Held, that there was no conflict in the evidence, and that it was proper to give the affirmative charge in favor of the defendant.</p>

Tried before the Hon. H. C. Sheake. The averments of the two counts of the complaint, as well as other material facts, are sufficiently stated in the opinion.

Tried before the Hon. S. H. fiprott. This was an action by Samuel Lischkoff, the appellee, against The Louisville Jeans Clothing Company and John Little, the appellants,, the principal and the surety, respectively, on an attachment bond. From a judgment for the plaintiff, the defendants appeal. The errors assigned relate to the rulings of the trial court on questions of evidence.

Tried before B. A. D. Dunlap, Esq., Special Judge. On November 7, 1894, the appellee, John T. Keener, brought this action against the appellants, John W. & E. C. Atkins, to recover the sum of $230, and interest from October 1, 1*93. The complaint contained the common counts The defendant pleaded, in short, by consent, non assumpsit, payment, and set-off; and issue was joined on these pleas.

.Tried before the Hon. H. C. Speake. The opinion states the nature of the case and the material facts.

Clair. Tried before the Hon. George E. Brewer. The opinion states the nature of the case. The plaintiff demurred to defendant’s fifth plea, on the following, among other grounds : “(2) Because the plea is vague and uncertain * * * *.

Tried before the Hon. .John R. Tyson. The note sued on is copied in the report of the case on a former appeal. First National Bank of Montgomery v. Slaitghter, 98 Ala. 602. Upon the introduction of all the evidence, the court, at the request of the plaintiff,' gave the following written charge : “If you believe the evidence, yon should find for the plaintiff,” and to the giving of this charge the defendants duly excepted.

Tried before the Hon. H. C. Speake. This was an action by L. P. Troup against Morgan county.

Tried before the Hon. J. M. Carmichael. This action was brought by B. F. Simonton against W. C. O’Neal.

Tried before the Hon. James W. Lapsley. The appellee, G. W. Fowler, brought this action before a justice of the peace, against the appellant, the Learned-Letcher Lumber Company, claiming one hundred dollars due by account for lumber sold to the defendant. The justice rendered a judgment for the plaintiff, and the defendant appealed to the City Court.

Auk’Nal from the Circuit Court of Marshall. Tried before the Hon. J. A. Bilbro. This was an action by the National Fertilizer Company, the appellant, against. J. W, Thomason and others, the appellees, to recover an amount claimed to be due on a bond made by the defendants to the Farmers Alliance Exchange of Alabama, and by the latter assigned to the plaintiff.

Heard before the lion. W. H. Tayloe. The averrments of the bill in this case are sufficiently stated in the opinion. The defendant’s demurred to the bill on the following grounds: (1) that it shows that neither of the complainants were living when the will under which they claim was made, nor at the time of the death of the testator ; and, .(2) that it fails to set out with sufficient definiteness the interest of the complainants in the property sought to be partitioned.

Circuit Court of Mobile. Tried before the Hon. James T. Jones. The case stands thus : The plaintiff proves the unlawfnl violation of the contract by the defendant, breaking it up and compelling the plaintiff to abandon the profits on his part.

Tried before the Hon. N. D. Denson. The three written charges referred to in the opinion were as follows : (1) ‘ ‘If. the jury believe from the evidence that Mrs. M. A. Freeman replevied the goods sold by Douglass & Duncan, and further,if they believe from the evidence that she rented a storehouse in which these goods or any part of them were sold by.her, or for her benefit, then these are circumstances which the jury may consider to ascertain whether she ratified said…

Heard before the Hon. W. H. Taylor,. The bill in this case was filed October 10, 1894, by the appellant, the Electric Lighting Company of Mobile, against the appellees, the Mobile & Spring Hill Railway Company and one J. H. Bleoo, the general manager of said railway Company. The opinion states the substance of the material stipulations of the contract set forth in the bill.

Tried before the Hon. H. C. Speaice. This was an action on a promissory note, brought by the appellant, the Alabama National Bank, against the appellee, Charles H. Halsey. The suit was instituted on February 14,1893.

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

Tried before the Hon. Wm. S. Anderson. This vyas a statutory action of ejectment, brought by Mary Cary against Henry Holmes. Upon the exclusion, as stated in the opinion, of the tax deed offered in evidence by the plaintiff, she took a non-suit, with bill of exceptions, &c., and appeals from the judgment.

the Chancery Court of Barbour. Heard before the Hon. Jebe N. Williams. The opinion stales the nature of the case.

Appeals from the City Court of Birmingham. Tried before the Hon. Wm. W. Wilicerson. (Their briefylid not come to the hands of the reporter.) Altman & McQueen, for appellees Allen et ~al. — (L) The ultimate fee, to the center of the street, was vested in the abutting owner. — Evans v. Savannah & W. TVy Go. 90 Ala. 54; Columbus & W. R. Co. v. Witheroiv, 82 Ala. 190 ; Moore v. Johnson, 87 Ala. 220 ; Perry v. N. O. <fc ili.

' Appeal from the City Court of.Birmingham. Tried before the Hon. Wm. W. Wilkerson. The appellant, G. J. Tomlin, appealed to the City Court of Birmingham from a conviction before the Recorder of the city of Birmingham, on the charge of resisting an officer, in violation of an ordinance of the city.

Tried before tbe Hon. James T. Jones. Reference is made to the report of this case on the former appeal for a statement of the pleadings as they stood at that time. — 94 Ala. 199. The opinion indicates the amendments made, after the reversal and remandment on the former appeal, to the 19th, 21st, 23d, 26th and 27th counts of the complaint.

Tried before the Hon. J. A. Bilbro. The second charge requested by the defendant, to tlio refusal to give which the defendant excepted, was as follows : “If the crop was cultivated by the wife and hree minor children, the wife is entitled to her own laoor, luid the husband is entitled to the labor of his children, and she cannot recover for any part of the labor performed by the children; and unless the jury have some reliable data for ascertaining the separate value' of her…

Tried before the Hon. John R. Tyson. This was an action by the appellant, V. T. Hawkins, against the appellee, E. H. Merritt, as executor of the estate of F. M. Gilmer, deceased, to recover one thous- and dollars as damages for the breach of a written contract made by the defendant’s testator, which is described in the opinion.

Tried before the ILon. Thomas R. Roulhac. This was a statutory action of detinue, instituted by the appellant, Edgar Rand, against the appellee, James S. Gibson, in the circuit court of Colbert county, to recover possession of thirteen bales of cotton. The plaintiff made the affidavit and bond as required by the statute, and had the sheriff to seize the cotton.

Tried before the Hon. Thomas M. Arrington. An attachment, unless there is personal service, or a voluntary appearance, is strictly a proceeding in rern, notwithstanding its form is in-personam, and is operative only on and against the the property seized. — Heidritta v. Elizabeth Oil Cloth Co., 112 U. S. 300.

Tried before the Hon. J. A. Bilbro. This case presents a question upon which there have been no adjudication, so far as has been discovered. It is plainly distinguishable from the cases in which this court has held mortgages of stocks of merchandise to be fraudulent. In those cases the mortgagor was the prior owner of the mortgaged property. In this case the mortgagor first acquired the property at the time he executed the mortgage upon it.

Tried before the Hon. Wm. W. Wilkerson. The opinion states the nature of the case.

<p>Appeal from the Chancery Court of Calhoun.</p> <p>Heard before the Hon. S. Kb McSpadden.</p>

Tried before the Hon. Thomas R. Rouli-iac. This action was brought before a justice of the peace. On appeal from his judgment to the circuit court, it was tried de novo before the judge, without a jury, and judgment rendered for the plaintiff, the appellee here. The appeal is by the defendant from that judgment. cited Rycds v. Prince, 82 Ala. 264; Oliver v. Holt, 11 Ala. 574; S. & N. R. R. Co. v. Henlein, 56 Ala. 868; 1 Am. & Eng.

Tried before the Hon. H. A Sharpe'.- This was an action by Frank Anderson against the Alabama Great Southern Railroad Company, to recover damages for personal injuries, and for the destruction of his carriage, and injuries to his horses, resulting from the alleged negligence of the defendant. The defendant pleaded the general issue, and contributory negligence on the part of the plaintiff. The case was tried on issue joined on these pleas.

Tried before the Hon. H. C. Speaice. This was a statutory action of ejectment brought by the appellant, John E. Newsom, against I. P. Guy, E. M. Guy and W.’C. Holesapple. Thecomplaint.was amended by striking out .the name of W. C. Holesapple as a defendant. E. M. Guy pleaded : (2) That the land sued for was hers, and she was not guilty of unlawfully detaining it from the plaintiff.

<p>Bill in Equity by Judgment Creditor, to subject Property Fraudulently Conveyed by Debtor.</p> <p>1. Fraudulent, conveyance; partnership interest. — In a suit to set aside, as fraudulent, the sale of an interest in partnership property by one of two partners to the other, it appeared that the solvent claims due the firm were sufficient to pay all the firm debts, except a balance due on a printing outfit purchased by the firm on conditional sale, on which a considerable amount had been paid; that the consideration of the purchase by the one partner from the other was the assumption by the vendee of all the partnership debts, and the execution of his note to the vendor for a balance agreed to be paid; and that the vendee had knowledge of the vendor’s insolvent condition, and of his debt due to the complainant. Held, that complainant was entitled to a decree condemning the equitable interest of the debtor in the property purchased on said conditional sale, and such interest in the other property sold and conveyed as was owned by the debtor.</p>

Tried before O. Kyle, Esq., Special Judge. T. M. Davidson brought this action against W. T. Couch, J. P. Gibson, C. N. Roberson, and C. W. Lindsay.

Tried before the Hon. J. A. Bilbro. If the certificate was of any benefit to the appellee, or to his daughter, as evidence on the contest, or afforded him aid in identifying or locating the land, then the surrender of it was a sufficient consideration to uphold the note. — Maull v. Vaughn, 45 Ala. 134; Pli%on v. Hitherington, 57 Ala. 165.

<p>Appeal from the Circuit Court of Colbert.</p> <p>Tried before the Hon. H. C. Speake.</p>

Tried before the Hon. John B. Tally. This was an action by Louis Levin, the appellant, against The Me'mphis & Charleston Railroad Company, a private corporation, the appellee, to recover damages for personal injuries, alleged to have been suffered by the plaintiff.

Heard before the Hon. Jere N. Williams. 1. The bill contained equity, and the respondents were not entitled to a dissolution upon the first ground mentioned in the .motion. 2. Upon the hearing of a motion to dissolve an injunction restrain ing waste, affidavits, should be received to contradict the answer, where the injury would be irreparable. Long v. Brown, 4 Ala. 622; Daniell’s Chancery Pleading & Prac. (Perkins’ ed.), pp. 17, 87 & note 2. 3.

Heard before the Hon. Thomas Cobbs. The facts of this case, with the exception stated in the opinion, are the same as those disclosed in the report of the case on a former appeal. — 94 Ala. 170.

Heard before the Hon. T. H. Davldson. In the matter of the final settlement of the accounts of James W. Hood, as the administrator of the estate of W. T. Hood, deceased, William Hullett, as the administrator de bonis non of said estate, appointed after it was declared insolvent, and several creditors, objected to the allowance of the following items of credit in the account of said administrator in chief : Date. No. of Am’t. Vouch. 1893. Sept. 9.

-Appeal from the Circuit Court of Henry. Tried before the Hon. J. M. Carmichael. On the submission of this case to the jury the court, at the request of the plaintiffs, gave, in writing, the general affirmative charge in their favor. The defendant excepted to this action of the court, and also excepted to the court’s refusal to give the general affirmative charge in his favor, as requested by him. There were verdict and judgment for the plaintiffs.

Tried before the Hon. H. C. Speake. This action Avas brought by Gurley, a municipal corporation, against William A. McAnally. The first four counts of the complaint Avere the common counts in assumpsit.

Tried before T. M. Stevens, Esqr., Special Judge. This was an action by the appellee, Solomon W. Holland, against the appellant, the Southern Express Company, to recover $183.03 damages for the failure of the defendant to deliver one package of money, containing $183.03, received by the defendant as a common carrier, to be delivered to the plaintiff at Castleberry, Ala.

Heard before the Hon. Jebe N. Williams. The bill in this case was filed by J. S. Reeves and others, suing as partners composing the firm of J. S. Reeves & Co., against J. A. Peterman and his wife, Lena Peterman, and sought to subject to the payment of a debt due to the complainants from the defendant J. A. Peterman a lot of land, which he claimed as a homestead.

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

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the Peters Shoe Company, a corporation, on behalf of itself and other creditors, against J. K. Maxwell and John E. Maxwell,composing the firm of J. K. Maxwell & Co., Mary A. Maxwell, and others, to reach property alleged to have been fraudulently conveyed by the debtors, J. K. Maxwell & Co.; audit prayed the appointment of a'receiver for said property.

Tried before the Hon. W. W. Wilkerson. This was an action by C. W. Austin against Mary Schaefer, and others, on a detinue bond. The following statement was prepared by Haralson, J.: The appellee was a constable. An execution came into his hands, as such, in the case of Shields v. Schaefer, from a magistrate’s court. Wade, the attorney for Shields, instructed the appellee to levy the execution on certain personal property as belonging to Schaefer.

Tried before the lion. J. A. Bilbro . A party who only shows possession under an unfounded claim of title will he defeated by evidence of actual possession and occupation prior to the entry made under such pretended claim. — Sedgwick & Wait on Trial of Title to Land, § 717; Fordv. Belmont, 60 N. Y. 567.

• Tried before the Hon. L. F. Box. This was a statutory action of ejectment, brought by the appellants, against the appellee, to recover certain lands described in the complaint. The defendant pleaded, (1) the general issue; (2) “Statute of limitations of twenty years;” and (3) “Statute of limitations of ten years.” The plaintiffs claimed title under a patent issued to Lucinda Davidson by the United States, on the 1st day of June, 1858, conveying to her the lands sued for.

Tried before the Hon. William L. Stephens. The appellee, the Vacuum Oil Company, a New York corporation, brought this action against the appellant, A. L. Soulard, by attachment, on the ground that the defendant was a non-resident, and had not sufficient property in the State of his residence to pay the debt alleged to be due the plaintiff.

<p> Action against Municipal Corporation on Interest Coupons. </p> <p>1. Plea of general issue, what is; verification not necessary. — Tn an action against a municipal corporation on interest coupons detached from its bonds, a plea that “each and every allegation of said complaint is untrue” is merely a plea of the general issue, and need not be verified.</p>

Heard before the Hon. John IT Disque. The appellee, the City of Gadsden, filed its petition in this case for a mandamus to compel the appellant, R. A. Mitchell, as mayor of said city, to hold the mayor’s court in the place designated by the board of mayor and aldermen.

Clair. Tried before the Hon. George E. Brewer. The defendant duly excepted to the action of the court in overruling the objections, stated in the opinion, to the testimony of the plaintiff Stephens as to his conversation with Osborne ; and also excepted to the refusal of the court to give the following, among other written charges requested by it: “The court charges the jury that if they believe the evidence they should find:a verdict for the defendant.” cited Lankford v.…

Tried before the Hon. James J. Banks. This was an action by Harry Hawkins and John Hawkins, partners composing the firm of Hawkins Lumber Company, against Patrick McAnally and Catherine Me Anally.

Tried, before the Hon. J. M. Carmichael.- • The appellees, D. H. Baldwin and others, composing the firm of L. H. Baldwin & Co., sued S. E . Collins on a promissory note, and in aid of the suit sued out a writ of a garnishment, which was served upon two fire insurance companies as garnishees. Thereupon the defendant executed a bond to dissolve the garnishment, with H. C. Tompkins and Alex.

Tried before the Hon. H. C. Spbake. The principal facts of this case are stated in the report of the decision rendered on a former appeal. 97 Ala. 596.

Clair. Tried before the Hon. George E. Brewer. On the facts stated in the opinion, the court, at the request of the defendants, gave the general affirmative charge in their favor. The plaintiffs duly excepted to the giving of this charge, and appeal from the judgment in favor of the defendants. cited Abbettv.

Tried before the Hon. John B. Tally. The principal facts of the case are stated in the opinion. The defendant objected to the introduction in evidence by the plaintiff of the notary’s certificate, on the ground indicated in the opinion, and excepted to the action of the court in overruling his objection. cited Lesser v. Scholtz, 98 Ala. 338; Montgomery v. Grosstlmaite, 90 Ala. 553; Hooclv. Robbins, 98 Ala. 484; 2 Daniel, Neg.

<p> Action against Indorser of Mon-negotiable Mote. </p> <p>L Stipulation in note for attorney’s fee; charging indorser of non-negotiable paper. — Where the holder of a note personally prosecutes asuifc on it, not employing an attorney, he is not entitled to the benefit of a stipulation in it for the payment of an attorney’s fee, in the event the note is not paid at maturity, a'hd suit is brought on it; and a suit, so prosecuted on a non-negotiable note for $97, containing such a stipulation for an attorney’s fee of 10 per cent., but no claim being made under this stipulation, is propei’ly brought against the maker before a justice of the peace, under the statute (Code § 1778) requiring that, in order to charge the indorser of non-negotiable paper, suit be brought against the maker within thirty days after suit can properly be brought, if the amount due does not exceed one hundred dollars, as, in such case, the amount of an attorney’s fee stipulated fordoes not enter into, or form part of, the amount due on the note.</p>

<p>Appeal from the Circuit Court of Bibb.</p> <p>Tried before the Hon. N. D. Denson.</p>

Tried before the Hon. H. C. Speake. This was an action by John Hertzler, Jr., the appellee, against James R. Stevens, the appellant.

Heard before the Hon. S. E. McSpadden. This was a bill in equity by the American Mortgage Company of Scotland, Limited, against the personal representative and heirs of Sarah Wells, deceased, to foreclose a mortgage executed by said Sarah Wells to the complainant, conveying certain lands described therein.

Tried before the Hon. John B. Tally. This action was brought by the appellants, Thomas L. Farrow and others, against the appellee, the Nashville, Chattanooga & St. Louis Railway, to recover the statutory penalty for destroying trees upon lands alleged to be owned by the plaintiffs. The case was tried upon issue joined upon the plea ol the general issue. Both parties claimed the land in question under one Thomas Hale, who was the owner of it in the year 1858.

Heard before the Hon. Wm. H. Simpson. The bill in this case was filed by the appellants, Estes D. L. McOutchen and others, against the appellees, William J. Loggins and others. The nature of the case and the principal facts are stated in the opinion. On the trial of the issue submitted to the jury, the complainants duly reserved exceptions to the several rulings, among others, which are indicated and discussed in the opinion.

Tried before the Hon. ¥i. W. Wilkerson. This was a statutory action • of ejectment by Sidney Hart, the appellant, against Issac Adler, the appellee. Both parties claimed title from a common source, one T. W. Walker. Said Walker executed a mortgage to one Perryman, to secure certain promissory notes.

Heard before the Hon Wm. W. Wilkerson. contended that thedecree of June 29, 1893, was not final, under any rules laid down by this court, aud, in support of this proposition, cited 1 Daniel 1’3 Oh. Pr. (Cooper’s note, Ed. .1879), Marg. p. 794, & notes: Garner v. Prewitt„ 32 Ala. 18; Walker v. Crawford, 70 Ala. 571; Kimball v. Rogers, 90 Ala. 343; Randal v. Boyd, 73 Ala. 285.

Heard before the Hon. S. K. McSpadden. The opinion states the material facts disclosed by the bill in this case.

Apee&l from die Circuit Court of Chambers; Tried before the Hon. N. D. Denson. This was an action by the appellee, the Erie City Iron . Works, a corporation, against the appellant, Charles E. Finney. The complaint claimed an amount as “balance due by instrument under seal made August 18, 1893, by Perry & Finney, a firm composed of defendant and one-Walker C. Perry, payable to Eady & Maddox, now the property of the plaintiff.” The defendant filed two poleas.

Heard before the Hon. John W. Bishop. This is an appeal from a decree overruling demurrers to a bill in equity and a motion to • dismiss said bill for want of equity. The opinion describes the bill, and in-, dicates the grounds of objection to it suggested by the demurrers.

Tried before the Hon. H. C. Speake. On June 13, 1892, the appellee, J. B. Whitehead, brought this action in the Circuit Court of Marion county against the appellant, the Kansas City Memphis & Birmingham Railroad Company, to recover seventy-five dollars as damages for the alleged negligent killing, by a train of cars .belonging to the defendant, of a horse, the property of plaintiff, on October 13, 1891.

Tried before the Hon. H. C. Speake. The opinion sufficiently states the pleadings in this case and the tendencies of the evidence offered by the plaintiff. The defendant introduced evidence tending to show that the engine which passed shortly before the fire was discovered was equipped with suitable appliances for preventing the escape of sparks, and that on that occasion it was being carefully handled by an experienced and competent engineer.

Tried before the Hon. Tecos. R. Roulhac. The pleading in this case and the tendencies of the evidence are sufficiently stated in the opinion. Gus Garner, a witness for the plaintiff, testified that, while he was with a man named Taylor, on the night plaintiff’s house was burned, a freight train passed, the engine of which was throwing a great many sparks, and that there was an unusual and large rush of sparks from the engine.

Tried before the Hon. J. R. Tyson. This was an action by T.. J. Campbell against the Louisville & Nashville Railroad Company to recover damages for personal injuries caused by the breaking of a defective brake-rod. The case as originally presented is fully stated in the report of the decision on a former appeal, 97 Ala. 147.

Tried before the Hon. James J. Banks. The main features of this case are stated in the report of the decision on a former appeal. Thornton v. Goolc, et. al., 97 Ala. 630. On the last trial, J. K. Cook, the constable, testified that while he was at the store preparing to levy the attachments, Mrs. Pickett, the wife of the defendant in attachment [under whom plaintiff claimed], walked into the store, and addressed herself to him.

<p>Appeal from the Chancery Court of Green.</p> <p>Heard before the Hon. Wm. H. Tayloe.</p> <p>cited 20 Am. & Eng Encyc. of Law, 840 ; Kennard v. Kennard, 63 N. H. 303; 4 Kent, Com. 206; Wiggins v. Perkins, 2 N. E. Rep. 896 ; Leandors v. Coke, 122111. 317 ; Weehaukin Ferry Co. y. Session, 17 N,' J. Eq. 475 ; Schmanngos v. Gross, 132 Mass. 142; Colby v. Duncan, 139 Mass. 398 ; Huntv. Ball, 37 Me. 333 ; Peets y. Weise, 47N. J. Law, 154; Mercantile Trust & Deposit Co. v. Brown, 17 Atl. Rep. 937 ; Greer v. McAphee, 82 N. C. 187; Whiter. White, 86 Ky. 612 ; Thompson v. Lucldington, 104 Mass. 193 ; Drew’s Admer. r. Drew, 66 Ala. 455; Phinizy v. Foster, 90. Ala. 262; Connell ¶. Cole, 89 Ala. 381.</p> <p>cited McCroan v. Pope, 17 Ala. 616; Taylor v. Harwell, 65 Ala. 1; 2 Jarman on Wills, 406, 617 ; Savage v. Benham, 17 Ala. 119 ; Phinizy v. Foster, 90 Ala. 264 ; Kumpe v. Coons, 63 Ala. 452 ; Hunter v. Green, 22 Ala. 337 ; 4 Kent, Com. 203 ; McArthur v. Scott, 113 U. S. 380; 2 Washburn on Real Property, 588, 593,594; Weston v. Weston, 125 Mass. 268 ; Coxall v. Sherrod, 5 Wal. 288 ; Smith v. West, 103 111. 332.</p>

Heard before the Hon. Thomas Cobbs. The evidence shows that the Corbin Banking Company was really the agent of the Mortgage Company, and that James Benagh was really the agent of the Corbin Banking Company. All the services render by the agents were for the exclusive benefit of the appellees. They were made to take the form of agents for the appellants in furtherance of a stupendous scheme of usury.

<p> Action against County, on Contract. </p> <p>1. Recitals of bill of exceptions; when question, first raised on appeal, will not be considered. — The bill of exceptions in an action against a county to recover the price of repairing a public bridge showed that the work was done under a contract made on behalf of the county by one of the commissioners, who was authorized to contract for the work by an order entered at a special term of the commissioners’ court; that the commissioners court rejected the claim solely on the ground that the work had not been properly done; and did not show that any question was raised on the trial in any manner, except as might be implied by the defendant’s request for the affirmative charge in its favor, touching the validity of the order authorizing said commissioner to let the work. Held, that the objection, raised in this court on appeal by the county, that the order authorizing the' letting of the work was made at a special term, without proof that the term was called in the manner required by the statute, would not be considered.</p> <p>2. Same. — Where the commissioners’ court rejected a claim against a county for the contract price of repairing a public bridge, on the ground that the work was not properly done, and, on the trial of an action on the claim against the county, the defendant did not raise the objection that,the claim as presented to the commissioners’ court for allowance was not sufficiently specific, that objection need not be considered on an appeal by the county from a judgment against it.</p> <p>3. Presentation of claim against county; when sufficiently specific.— Work on a public bridge was done for a county under a contract made .in its behalf by one of the commissioners, who was authorized to let the work by an order of the commissioners’ court. The contractor presented to the commissioners’ court for its allowance a written certificate, addressed to said court, signed by said commissioner, and verified by the contractor’s affidavit of its correctness, as follows: “According to your order I contracted with A. J. Fleming to repair the long bridge over Patsaliga for the sum of $265. He has complied with his part of the contract, and I recommend that he be paid.” Held, that the claim was sufficiently itemized to meet the requirement of the statute (Code, § 902) in that regard.</p>

Heard before the Eton. Jeb,e N. Williams. This was a bill by W. H. Murphree against J. D. Henderson and J. C. Henderson, for a partnership settlement and accounting.

Heard before the Hon. W. H. Tayloe. The written agreement of the defendant C. B. Wooten, referred to in the opinion, was as follows: “State of Alabama, Marengo County.

Tried before the Hon. William S. Andekson. This action was brought by the appellants, (Jerald & Chambers, against the appellee, Peyton R. Tunstall.,, The opinion describes the pleadings in the case. The plaintiffs reserved exceptions to the several rulings of the trial court on questions of evidence which are considered in the opinion.

Heard before the Hon. Wm. H. Tayloe. This was a bill in equity filed by the appellee, Thomas Anderson, against the appellant, Mary J. McClarin, the widow of Robert McClarin, deceased, to have set aside as fraudulent and void a conveyance of land executed by said Robert McClarin and Mary J. McClarin to James Robertson, and another conveyance executed by said James Robertson to the defendant, Mary J. McClarin, and to subject the property covered by these conveyances to the…

Tried before the Hon. H. C. Speake. The opinion sufficiently states the nature of the case and the evidence so far as is necessary to an understanding of the rulings of the court.

Tried before the Hon. James T. Jones. This was an action by Sarah M. Miller, as administratrix of the estate of Rudolph'Miller, deceased, against Matthew L. Davis.

Heard before the Hon. Thomas Cobbs. (1.) Where the husband pays the purchase money and and takes the title in the name of his wife, she will be declared a trustee in invihtm for his creditors. — Hardin v. Darwin, 66 Ala. 55; Moore v. Worthy, 56 Ala. 163.

Tried before the Hon. James T. Jones. Most of the material facts are stated in the opinion.

H. C. Speaks. This was an action by Charles R. McMinn against the town of Cullman, a municipal corporation, to recover damages for personal injuries alleged to have been sustained by the plaintiff while crossing a bridge, within the corporate limits of the defendant. The opinion sufficiently states the pleadings and the rulings thereon.

Tried before the Hon. James J. Banks. This was an action by the Elyton Land Company against W. T. Hodges and others, on several promissory notes which were given by the defendants to the plaintiff. The opinion states the matter relied on as a defense and the evidence on the subject. The cause was tried by the court without a jury, and upon the hearing of all the evidence the court found the issues in favor of the plaintiff, and rendered judgment accordingly.

Tried before John G. Winter, Esq,., Special Judge. This was an action brought, February 16th, 1895, by Charlotte Thompson Rogers, the appellee, against Gay, Hardie & Co., the appellants.

Tried before the Hon. Wm. M. Wilkerson. In statutory demands made upon municipal and other authorities for payment of a debt, or for compensation for an injury, strictness of description is not required. It is sufficient if the demand reasonably draws the minds of the persons concerned to the occurrence in question and its cause.

Tried before the Hon. James J. Banks. The appellant, B. M. Allen, had an execution on a judgment in his favor against John Hamilton levied on certain personal property found in a house occupied by said John Hamilton and his wife, Mary E. Hamilton. Said Mary E. Hamilton interposed a claim to the property levied upon, and made affidavit, and gave bond as required by the statute.

<p> Action by Administrator to recover Damages for Death of Intestate by Wrongful Act. </p> <p>1. Contributor j negligence. — Where, in an action by an administrator to recover damages for the death of his intestate, alleged to have been caused by the negligence of the defendant railroad company, it appeared that said intestate came to his death by falling,in the nighttime, into an excavation ipade by the defendant across a travelled way, not a public highway, which defendant had negligently left unguarded; but that the intestate knew of the location of the excavation, and that defendant had left it unguarded, and without lights or signals of warning, and he could have avoided the disastrous result by the exercise of reasonable care and diligence, — the plaintiff was not entitled to recover, because of the contributory negligence of his intestate.</p>

Tried before the Hon. J. A. Bilbro. The opinion states the nature of the case. The defendants examined James A. Brice one of the defendants, and, showing him the verified statement of account which had been introduced in evidence by the plaintiffs, asked him this question: ‘‘Is that account correct?” The plaintiff objected to this question, upon the grounds that it was illegal, and that it called for the conclusion of the witness.

Tried before the Hon. ¥m. ¥. Wilkerson. (1) The tenant is not liable to pay rent when no part of the premises demised remains in existence capable of being occupied or enjoyed by such tenant. — Cook v. Anderson, 85 Ala. 99 ; Warren v. Wagner, 75 Ala. 188. (2) In the absence of a covenant in a lease binding the landlord to rebuild or repair, he has no right to enter for the purpose of repairing.

Tried before the Hon. William S. Anderson. This was an action by Cleveland Prichard against Patrick Sweeney. The opinion sufficiently describes the complaint. The court sustained a demurrer to the first count. Upon the court’s sustaining objections by the defendant to the evidence offered by the plaintiff, tending to show the facts upon which he relied for a recovery, the plaintiff took a non-suit, with a bill of exceptions.

This was an original petition filed in this court by J. O. Green, a constable, for llie writ of mandamus to compel the Hon. John W. Bishop, judge of the city court of Talladega, to vacate an order requiring petitioner to surrender property in his possession by virtue of writs of attachment.

Tried before the Hon. H. C. Speake. 1. The taking of the collateral did not impair the original liability of appellee. —4 Ala. 58. 2. The original debtor can be sued, although his creditor has collaterals in his hands. All that is required is that the creditor produce the collaterals on the trial and offer to surrender them. — 41 Ala. 222; 27 Ala. 254. The only obligation on one who holds collateral is to try to collect it.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed to set aside the mortgage and bonds mentioned in the opinion.

Heard before the Hon. W. II. T’ayloe. The bill in this case was filed on January 9, 1895, by James Q. Smith, a minor, by next friend, against Louis W. Turpin, Marie L. Smith, Thomas O. Smith, A. Kolsky, and. the Canadian '& American Mortgage and Trust Company, Limited.

<p>Appeal from the Circuit Court of Mobile.</p> <p>Tried before the Hon. James T. Jones.</p>