Volume 110 — Alabama Reports

Tried before the Hon. J. M. Carmichael. The appellant was indicted and tried for the murder of Ed Jackson, was convicted of murder in the second degree, and sentenced to the penitentiary for twenty years. Upon the trial of the cause, as is shown by the bill of exceptions, the State introduced evidence tending to show that the defendant had killed the deceased, Ed Jackson, by shooting him with a pistol.

Tried before the Hon. J. M. Carmichael. The appellant was indicted and tried for an assault with intent to murder one Robert Bennett, and was convicted of an assault and battery. Upon the trial of the cause, the evidence for the State tended to show that late in the afternoon of a day just before the finding of the indictment, the defendant assaulted Bob Bennett and cut him with a butcher knife.

Tried before Hon. JohN R. TysoN. The facts of the case are sufficiently stated in the opinion. —The charge which instructed the jury that “if from the evidence you have reason to doubt the guilt of the defendants, you should acquit them,” should have been given.

Tried before the Hon. Samuel E. G-reeNE. The appellant was indicted and tried for the murder of Arthur T. Woods, and was convicted of murder in'the first decree, and sentenced to the penitentiary for life.

The facts of the case are sufficiently stated in the opinion. The prohibitory laws in the counties of Conecuh and Butler being different in their provisions, the defendant who sold the liquor in Butler county cannot be convicted in Conecuh county for the violation of the latter statute ; and the provisions of section 3720 of the Code do not authorize such conviction. — Code, § 3720; Acts 1886-87, pp. 665, 6l)5, 700; Acts 1888-89, p. 5 12.

<p>Appeal from the Circuit Court of Limestone.</p> <p>Tried before the Hon. H. C. Speake.</p> <p>The facts of the case are sufficiently stated in the opinion.</p>

Tried before the Hou. James A. Bilbuo. The appellant, Lucien Compton, was jointly indicted with one Brash Snead for the murder of Chap Browning, by shooting him with a pistol. On motion of the defendant there was a severance, and upon his being tried alone Lucien Compton was convicted of murder in the first degree, and sentenced to the penitentiary for life.

Tried before the Hon. William S. Thobxngton. Tlie appellant was indicted, tried and convicted for the larceny of money from the person of Ben Brown. Upon the trial of the cause, as is shown by the bill of exceptions, the State introduced evidence tending to show that the defendant was guilty as charged. The evidence for the defendant was in direct conflict with that of the State.

Tried before the Hon. John G. WiNter. The appellant was tried and convicted under the following indictment: “The grand jury of said county charge that before the finding of this indictment Eason T. Cook did unlawfully sell or offer for sale one pound of oleomargarine to one William Owen, which said oleomargarine was an article, product or compound made, wholly or partly, out of fat, oil, or oleaginous substance or compound thereof, and which said oleomargarine was not…

Tried before the Hon. PL C. Speaice. The appellant was indicted, tried and convicted of an assault upon one John Mosley with a knife, with intent to murder him, and was sentenced to the penitentiary for twenty-five months. The facts of the case, showing the rulings of the court which are reviewed on the present appeal, are sufficiently stated in the opinion. The court erred in giving the general affirmative charge in favor of the State.

Tried before the Hon. William S. ThoriNgtoN. The appellant was indicted, tried and convicted for carrying a pistol concealed about his person.

Tried before the Hon. W. .S. ThokiNGTON. The appellant was indicted, tried' and convicted under the following indictment: “The grand jury of said county charge that before the finding of this indictment, A. Cahn, whose Christian name is to the grand jury unknown, did keep a disorderly, public and ill governed house, and did then and there unlawfully cause and procure certain persons, as well women as men, of evil name and fame, to frequent and come together, in his said…

Tried before the Hon. JohN G. Winter. The appellant was indicted, tried and convicted of larceny from a store-house. The tendencies of the .State’s evidence and the facts of the case pertaining to the rulings of the court upon the testimony of the witnesses Jacobi and Williams are sufficiently stated in the opinion.

Tried before the Hon. W. S. ThoriNgtoN. The appellant was indicted, tried and convicted under an indictment charging him with assault with intent t.0 murder one Robert Comer, and sentenced to the penitentiary for two years.

Tried before the Hon. William S. ANdeksoN. The appellant was indicted, tried and convicted for selling farm products between sun-set and sun-rise in violation of section 4141 of the Criminal Code. The only question presented on the present appeal, was the admission of secondary evidence of the testimony of one Scott, who was examined as a witness on the former trial of the defendant.

Tried before the Hon. J. A. Bilbro. This was a bastardy proceeding, commenced by the following affidavit being made before a justice of the peace of Marshall county., on November 2, 1893 : “Personally appeared before me, Thos.

Appkal from the City Court of Montgomery. Tried before tlie Hon. Wijjjam S. ThoeiNGTON. The appellant was indicted, tried and convicted for buying, receiving, concealing or aiding in concealing a cow, the property of M. Shehane, knowing that it wa3 stolen, and not having the intent to restore it to the owner.

Tried before the Hon. W. S. TuoiuNgtoN. The appellant was indicted for an assault with intent to murder one Ike Micou, and was convicted of an assault and battery, and fined $140.

Tried before the Hon. William S. ANDeksoN. Held: “that the burden of proof was upon the defendant, to show that the increased valuation of his tax returns was not correctand to this ruling of the court the defendant duly excepted.

Tried before the Hon. William L. Stephens. The appellant was indicted, tried and convicted of playing cards in an “out-house, where people resort.” The out-house was shown to be an old store-house. The tendencies of the evidence for the purpose of an understanding of the questions presented on the present appeal are sufficiently stated in the opinion.

Tried before the Hon. W. H. Hurt. The appellant was prosecuted in the county court of Macon county on a complaint charging him with a 1 ‘failure, without good and sufficient cause, to perform a contract with surety confessing judgment for fine and costs,” and was convicted of the offense charged. The facts of the case are sufficiently stated in the ,opinion. cited Oode, §3832; Riley v. State, 94 Ala. 82; Simpson v. State, 97 Ala. 78.

Thomas Cobbs. On September 16, 1893, the appellee, S. N. Morris filed a bill against C. D. Guttery and M. A. Guttery, his wife. The bill averred that on February 9, 1892, the defendants executed to the complainant a mortgage to secure an indebtedness of $250 on certain lands, which were described in the mortgage as follows : “an undivided half interest in the E. i of the S. E. i of Sec. 7, and the N. W. i of theN.

Montgomery. Tried before the Hon. John R, Tyson. This was a statutory action of detinue, brought by the appellants against the appellees to recover a bank check. 'The facts of the case are sufficiently stated in the opinion. The cause was tried by the court upon an agreed statement of facts, and without the intervention of a jury. There was judgment for the defendants. The plaintiffs appeal, and assign the rendition of this judgment as error.

Tried before the Hon. JAMES J. BANKS. This action was brought by the appellants, D. B. Strouse and T. J. Shickel against N. C. Elting. The complaint contained five counts. The first, second, fourth and fifth were as follows; 1.

Tried before the Hon. H. A. Sharps. This action was brought by W. H. Mothershed, as administrator of Thomas Edmunds, against the Louisville & Nashville Railroad Company, to recover damages for fhe killing of plaintiff’s intestate, alleged to have been caused by the negligence of the defendant.

Tried before the Hon. John G. Winter, Special Judge. This was an action brought by the appellant, Frank McDonald, against the appellee, the Montgomery Street Railway, to recover damages for personal injuries, alleged to have been inflicted by reason of the negligence of the defendant. The complaint contained wo counts.

Heard before the Hon. Jeke N. Williams. Tin bill in this case was filed by the appellees, who were judgment creditors, for the benefit of themselves and all other creditors of the Metcalf Drug Company, who might desire to come in and make themselves parties.

Tried, before the Hon. H. C. Speaice. Sallie M. Bouldin, as administratrix of Richard Boul-din, deceased, brought the present action against the Louisville & Nashville Railroad Company, the appellant, to recover for the alleged negligent killing of her intestate, who was an employe of tlie defendant and engaged as a switchman at the time he received the injuries that caused his death. The complaint contained five counts.

Tried before the Hon. JohN R. TysoN. • This was an action brought by the appellee, R. Tillis, against the appellant, the Liverpool & London & Globe Insurance Company, and counted upon an insurance policy, issued by the defendant. The complaint declares upon a policy of insurance issued by defendant to Chancey & Newsome, on September 28, 1892, on a stock of goods, alleged to have been burned October 6, thereafter. The complaint avers a transfer of the policy to plaintiff.

James J Banes. This action was instituted by the State of Alabama on the relation of Hercules Sanche, under section 3170 of the Code, against the appellees, to have annulled and vacated the existence of an alleged corporation, on the ground that the defendants were acting as a corporation, without being duly incorporated. On the former appeal of this case, the complaint was held sufficient. — 97 Ala. 111. Upon the remandment of the cause, the defendants filed four pleas.

Appeag from the Circuit Court of Montgomery. Tried beforethe Hou. JoiinG. Winter, Special Judge. Held: except by the Massachusetts courts, that the title acquired by the mortgagee was subject to-all the infirmities, and iiable to all the burdens which rested on it in the hands of the mortgagor.— Williamson v.N. J. So. R. R. Co . 28 N. J. Eq. 277; s. c. 29 N. J. Eq. 311.

Tried before the Hon. J. A. Bilbro. The appellant, Arthur A. Pegues, brought an action in the justice of the peace court against W. M. Baker, the appellee, to recover damages for the breach of a contract.

Heard before the Hon. Jebe N. Williams. ' , ‘ The bill in this case was filed by G. 0. jariney and John C. Cheney, as trustees of Moses Bros., against Emily T. Nathan, under act of the legislature of Alabama, (Acts 1892-93, p. 42), to compel the determination of the claims of said Emily T. Nathan to the east half of lot No. 11, on the north side of Dexter Avenue (formerly Market street) in the city of Montgomery.

<p>Appeal from the Circuit Court of Jefferson. .</p> <p>Tried before the Hon. Ti-iomas R. Rouli-iac.</p> <p>The appeal in this case is prosecuted by the defendant in the court below from a verdict and judgment for the plaintiff assessing his damages at $4,000 All the facts necessary for a proper understanding of the decision on this appeal are sufficiently stated in the opinion.</p> <p>1. Appellee, at the time of his injury placed himself in an obviously dangerous position, in a place which was dangerous per se, .without necessity therefor, and failed while in such position to give due attention to his own safety, and is not entitled to- recover. — Andrews v. R. R. Go., 99 Ala. 438; Davis v. R. R. Go., 18 So. Rep. 173 ; George v. M. & 0. R.R. Co., 19 So. Rep. 784; R. R. Go., v. Stutts, 106 Ala. 368 ; R. R. Go. v. Turvaville, 97 Ala. 122 ; R. R. Go. v. Boland, 96 Ala. 626; Gunning ham v. R.R. Go., 17 Fed. Rep. 882; Pryor v. L. & N.R.R. Co., 90 Ala. 32; IVardenv. L. &N.R. R. Go., 94 Ala. 277 ; Lynch v. R. R. Co., 34N. E. Rep. 1072 ; R. R. Go. v. Kitchens, 83 G-a. 83; Renfro v. R. R. Go., 86 Mo. 302 ; Whitmore v. R. R. Go“., 41 Amer. & Eng. R. R. Cases, 330; Cypher v. R. R. Co., 24 Atl. Rep. 225 ; Olesonv. R. R. Co., 38 Minn. 412 ; Spencer v.R.R. Go., 130 Ind. 181.</p> <p>2. Having placed himself in an obviously dangerous position, he can not justify his disobedience of the rule of the company by proving that it was the custom of employes to violate the rule. — R. & D. R. R. Go. v. His-sung, 97 Ala. 187 ; R. R. Go. v Graham, 94 Ala. 545; Free v. R.&D. R.R. Go., 97 Ala. 231; Thomason v.R.&D.R. R.Go., 99 Ala. 471; 0’Neill v. R.R. Co., 45 Iowa546; R. R. Co. v. Wallace, 76 Texas, 636 ; Prather v. R. R. Co., 80 Ga. 427 ; and authorities sv,pra.</p> <p>3. There were two ways of doing this work — one was the proper and safer way, towit, to have proper signals to give, warning; the other was an improper and unsafe way, towit, to go under the car without signals of any kind. Appellee chose the improper and unsafe way, and, having been hurt in consequence, he can not recover. — R. R. Go. v. Orr, 91 Ala. 548; R. R. Go. v. Walters, 91 Ala. 435; R. R. Co. v. Holborn, 84 Ala. 133; R. R. Go. v. Graham, 94 Ala. 545 ; R. R. Go. v. George, 94 Ala. 199.</p> <p>4. Appellee was guilty of proximate contributory negligence, and is not entitled to recover. — Authorities supra; Xorth Bir. St. R. Go. v. Caldenuood, 89 Ala. 247.</p> <p>1. The third plea, as first amended, was insufficient, and the demurrers thereto were properly sustained. Said plea nowhere states that it was obviously dangerous for plaintiff to go underneath the cars, nor does it state that it was the duty of plaintiff before going under the car to put out signals or to inform himself as to precautions taken by other employes of the defendant. The plea ignores the statutory rule of law i-hat a railroad employe may assume that his co-eraployós will discharge their duties. — K. C.,M. & B. R. R.Co.v. Burton, 97 Ala. 249.</p> <p>2. The second assignment of error is not well taken. The fourth plea is very indefinite. It states that the defendant has promulgated certain rules governing car inspectors, which rules had been called to the attention of plaintiff, &c. Now, when were the rules promulgated, and -when were they called to the attention of'the plaintiff? For aught the court may know they were promulgated after the accident, and they may have been called to plaintiff’s attention before they were promulgated and before they were in force. And taking the pleading-most strongly against the pleader such would be the natural inference. — Coal City C. & C. (Jo. v. Hazzard Powder Co., 19 So. Rep.392. It is not sufficient to have promulgate'1 +hc rules. “It is equally binding on them to honestly and faithfully require their observance.” — R. & D. R. R. Co.v.IIissong, 97 Ala. 191.</p>

Heard before the Hon. Tiiomas Cobbs. The facts of the case are sufficiently stated in the opinion. Upon the averments of the bill, the complainant was not entitled to the appointment of a receiver. — Strickland v. Gay, 104 Ala. 875; Etowah JLin. Go. v. Wills Valley Min. Go., 106 Ala. 492; Williams v. Dismu,ices, 106 Ala. 402; Fort Payne Fu/r. Go. v. Fort Payne C. & I. Go., 9(5 Ala. 472. 1.

Tried before the Hon. J. M. Carmichael. This was a statutory action of detinue, brought by the appellee, J. R. Crawford, against the appellant, F. A. Powell. The defendant pleaded the general issue, and the following special pleas : “Second.

Tried before the Hon. H. A. Shaepe. This action was on the common counts, brought by the appellee, Sol Tolliver, against the appellant, H. K. White, to recover $250, with interest from March 1, 1892.

Tried before the Hon. John R. Tyson. This action was commenced by the appellee against the appellant, in a justice of the peace court, and was taken by appeal to the circuit court. The cause of action, as stated in the complaint, was as follows; “1.

Tried before the Hon. W. W. WileersoN. This was an action of assumpsit brought by the appellant against the appellee; and counted upon the common counts. The plaintiff had sold goods to one T. D. Clark, who was doing business under the name of T. D. Clark & Co., and a suit was brought to recover an indebtedness for such goods. The facts of the case, as disclosed on the present appeal, are sufficiently stated in the opinion.

Tried before tbe Hon. J. M Carmichael. This was a statutory action of ejectment, brought by the appellee, Thomas McCollister, against the appellant,' D. E. Morgan, and the two tenants of Morgan, to recover a house and lot in the town of Girard. The defendants pleaded not guilty, and upon this plea issue was joinéd. The facts of the case, as shown by the bill of exceptions, are sufficiently stated in the opinion.

Tried before the Hon. W. W. Wilkeeson. This was a suit in detinue by appellant against appel-lee to recover certain chattels described in the complaint, and was tried by the court without a jury. The pleas of tne defendants were as follows: 1st. “That they do not detain the property mentioned in plaintiff’s complaint.’’ 2d. That plaintiffs were not the owners of the property described in the complaint.

Tried before the Hon. H. A. Sharpe. This action was brought by the appellee, Mary B. Bowers, as administratrix of the estate of Thomas J. Bowers, deceased, against the Birmingham Railway & Electric Company; and the appeal is taken by the defendant from a judgment in favor of the plaintiff. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. Jesse M. Carmichael. This was an action of trover brought by the appellee against the appellant. The facts of the case are sufficiently stated in the opinion. There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the court to which exceptions were reserved.

Tried before the Hon. H. C. Speake. This suit was brought by the appellants, E. H. Peck & Bro., against the appellee, S. P. Ryan, to recover the balance of an account owing by defendant to plaintiffs. Defendant pleaded the general issue and payment. Part of this account was for goods furnished to one PJeas Stewart on the credit of defendant.

Appjsal from the City Court of Decatur. Tried before the Hon. William H. Simpson. This was an action brought by the appellees against Oden & Brown, and - counted upon promissory notes. The facts as to the filing of the pleas, and the pleadings themselves, are sufficiently stated in the opinion.

Tried before the Hon. Samuel H Sprott. The appeal in this case is prosecuted from a judgment in favor of the defendant in an action of ejectment, brought by the appellant against the appellee. The facts of the case are sufficiently stated in the opinion. The mortgage on the lands in question was given to secure Bell, not only on a contingent liability, but the debt was antecedent.

Heard before the Hon. Jebe N. Williams. The bill in this case was filed by the appellees as creditors of the Montgomery Carriage Works against the appellants. The facts of the case, showing the agreement entered into between the creditors of the Montgomery Carriage Works and the Montgomery Carriage Works itself, are sufficiently stated in the opinion.

Heard before the Hon. S. K. McSpadleN. The facts of the case are sufficiently stated in the-opinion. The hill of the complainant should have been dismissed. The primary object of the bill and the facts which were averred, seeking to give it equity, failed by proof. — Pond v. Lockwood, 8 Ala. 669 ; Hause v. Hanse, 57 Ala. 266 ; Dickinson v. Bradford, 59 Ala. 586 ; Wilson v. Holt, 91 Ala. 212.

Tried before the Hon. H. C. Speake. This was a statutory action of ejectment brought by Lucy Gl Campbell, Rachael Crutchfield, M. II. Yerger, Mrs. Kirby Lann, Woofie Hogan, Sarah. Hogan, C. Mattie Andrews and Jennie L. Burke against' Thomas B. Bickloy. On application of Sarah E. Noble, it was shown that Thomas B. Bickley, the original defendant, was her tenant, and the said Sarah E. Noble was made a party to the suit.

Tried before the Hon. Thomas M. ArriNgtoN. This was a statutory action of detinue brought by the Montgomery Iron Works against the Eufaula Oil & Fertilizer Company. The facts pertaining to the rulings of the trial court, which are reviewed on this' appeal, are sufficiently stated in the opinion.

Tried before the lion. J. A. Bilbro. This was a statutory action of ejectment, brought by the appellee, the New Kngland Mortgage ¡Security Company, against the appellant, David Thompson, to recover certain lands specifically described in the complaint. Issue was joined upon the plea of the general issue. For a proper understanding of tl\e decision of the ease on the present appeal, the facts are sufficiently stated in the opinion.

Heard before the Hon. M. T. Porter. The facts of the case are sufficiently stated in the opinion. 1.

'Appeal from the City Court of Birmingham, in Equity. Heard before the Hon. W. W. Wilicerson. On the 5th day of December,* 1895, the appellee filed the bill in this case on the equity side of the city court of Birmingham against R. S. Munger, the appellant.

Tried before theHou. John B. Tally. This was a statutory action of ejectment, brought by the appellees, as heirs of John S. Reeves,… Held: is always -material; and there can be no such thing as adverse possession without an intention to claim the title to the lands ; and if the jury believe from the evdence that Nathan Reeves never claimed the title to the land in question until 1885 or 1886, the statute of limitations is overcome, and the verdict of the jury must be…

Tried before the Hon. Leroy F. Box. This was a suit brought on a judgment which was obtained by th6 appellee; D. P. Gunnels, in the circuit court of Calhoun county, against one Solomon Bean, who was the administrator de bonis non of the estate of David E. Hawkins, deceased. Bean was removed from the administration of the estate after he had moved from the State of Alabama.

Tried before the Hon. JohN B. Tally. This was an action of trover, originally brought by the appellee, Joel E. Rogers, against William McKee, for the alleged wrongful conversion by William McKee of one yoke of oxen. On the death of McKee, the suit was revived in the name of the appellant, as the administrator of the estate of William McKee, deceased. Issue was joined on the plea of the general issue.

Heai:d before the Hon. Jerk N. Williams. The Lehman Durr Co. filed this bill against Beall & Coston and George A. Folmar, to set aside as constructively, or as actually, fraudulent, a deed executed by said Beall & Coston to said Folmar, on the 20th of October, 1894, by which they conveyed to the said Folmar their entire stock of goods and merchandise in their two stores in which they carried on a mercantile business at Luverne, Alabama.

¿appeal from the Circuit Court of Madison. Tried before the Hon. II. C. Speake. This action was brought by the appellants, C. Ault-man & Company, a corporation, against the appellee, R. M. Fletcher. The defendant pleaded the general issue and the statute of frauds.

Tried before the Hon. Johnt R. TysoN. The action in this case was brought by the appellee against the appellant.

Tried before the Hon. H. C. Spease. This was an action brought by the appellant, W. T. Taylor against Frank A. Howard, the appelleee, to recover damages for the breach of a cotítract. The present is the third appeal in this case. The former appeals are reported in the 90 Ala. 241, and 99 Ala. 450.

Tried before the Hon. Leroy E. Box. This was a statutory action of ejectment instituted on November 16th, 1893, by the appellant, George Hunter, as the administrator cle bonis non of the estate of Edward Moss, deceased, against the appellee, The Shelby Iron Co. ; and sought to recover certain specifically described lands.

Tried before the Hon. John R. Tyson. This was a statutory action of ejectment, brought by the appellant, Nancy E. H. Newton, against the appel-lee, the Louisville & Nashville Railroad Company, to recover a certain strip of land in the city of Montgomery. The only rulings assigned on the present appeal relate to tlie action of the trial court in refusing certain charges asked by the plaintiff, and in giving certain other charges requested by the defendant.

Hale. Heard before the Hon. William H. Tayloe. The facts of the case are sufficiently stated in the opinion. The decree last rendered by the chancellor improperly fixes the lien of the complainants, and they are thereby deprived of much of the security to which they were entitled by law. Howell v. Beams, 73 N. C. 391; Watts v. Eufaula Nat. Bank, 76 Ala. 474; Dallas County v. Timberlalce, 54 Ala. 412; 1 Brandt on Suretyship & Guarranty; §§ 269, 274.

Tried before the Hon. JOHN R. TysoN. The appp-llants, Loeb & Loeb, brought an action of detinue against Kaufman & Weil and the Singer Manufacturing Company, to recover personal property which was described in the complaint, as follows: “A wall built of wood, plastering and other materials, which now divides the stores occupied by the Singer.

Tried before the Hon. H. C. Speake. This was an action brought by the appellee, W. T. L. Cofer, against the Louisville & Nashville Railroad Company, to recover damages for the alleged negligent killing of cattle.

Heard before the Hon. Jeke N. 'Williams. On this appeal there were submitted together, two cases, which involved the same questions, and in which the same decrees were rendered.

Tried before the-Hon. John R. TysoN. The facts are sufficiently stated in the opinion. There are at least four reasons why the court below should not have given the affirmative charge for the defendant, but should have given the affirmative charge for the plaintiff. 1st. There is no controversy but that the mortgage to Warren was valid and that the mortgage to Thompson was valid. If this be true, then to give force and effect to both is the duty of the court.

Tried before the Hon. J. W. Fostbu. This was a suit brought by G. S. Robinson 'against the appellants, R. M. Greene and A. M. Bagby, to recover an amount alleged to be due the plaintiff upon a contract with A. M. Bagby for work performed and material furnished on a building owned by R. M. Greene.

Tried before the Mon. William L. Stephens. This action was brought by the appellee, Charles R. Mowell, against the appellant, the Provident Fund Society on a policy of accident insurance. The facts upon which the case, on the present appeal, is decided, are sufficiently stated in the opinion.

Tried before the Hon. H. A. Sharpe. The appellant, the Birmingham Dry Goods Company, sued out an attachment against W. J. Kelso, which was levied upon a stock of goods in possession of said Kel-so, at the place where he had been accustomed to do business .

Tried before the Hon H. A. Siiabjpb. The appellant, Plarriet E. Moore, recovered a judgment against the appellee, Simon Scharf. Execution was issued upon this judgment, and levied upon certain real estate as the property of the defendant in execution. On the 2d of March, 1893, the day after the levy of the execution, the defendant filed with the sheriff his claim of exemptions, by which he claimed the property levied upon as exempt to him as a homestead.

Tried before the Hon. J. M. Cahmichael. The complaint claims of the defendants “three hundred and fifty dollars by the joint and several note of said defendants for said sum made on May 11, 1891, and due and payable November 15, 1891, to plaintiffs or bearer; in said note defendants waived his (their) right to claim the benefit of any exemption of personal property provided for by the laws of this State until this debt is finally paid.

Tried before the Hon. H. C. Speake. On the 16th day of April, 1891, the'appellee, John F. Johnston, brought suit against the appellant, Dock'McDaniel, in the Circuit Court of Morgan county, Alabama, by filing a complaint in these words: “Plaintiff claims of the defendant one hundred and two ($102) dollars, for injury to certain goods, viz: Three (8) bales of cotton received by him as a common carrier, to be delivered to the plaintiff, at Bluff City, on the Tennessee river in…

Tried before the Hon. James J. Banics. This action was brought by the appellant against the appellee, to recover .damages for the breach of a certain contract. The substance of the contract sued upon, and the material allegations of the complaint, are sufficiently stated in the opinion. The defendant demurred to the complaint, assigning several grounds, the substance of which are stated in the opinion.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed against the appellant by the appellee, creditor of H. C. Harvey & Co., a partnership, to have a mortgage executed by said Harvey & Co. to one J. J'. Snyder, declared a general assignment for the benefit of the creditors of said Harvey & Co. The facts of the case are sufficiently stated in the opinion.

Tried.before the Hon. James B. Head. This action was brough by the appellant, A. H. Nun-nally, against the appellees, J. PI.

Heard before the Hon. S. K. McSpaddbN. The facts as to the filing of the bill, and the purposes for which it was filed, are sufficiently stated in the opinion.

Tried, before the Hon. James T. Joniss. This was a statutory action of ejectment, brought by the appellants against the .appellees. The claim of the plaintiffs to the land sued for was based upon a tax deed, executed to them by the probate judge of Choctaw county, conveying the lands sued for.

Heard before the Hon. William H. Simpson. The appeal in this case is prosecuted by the complainant in the court below from a decree of the chancellor denying the relief sought by the bill, and ordering the bill dismissed. This decree is here assigned as error. The evidence showed that the money due on the first instalment of goods shipped by the complainant to Livingston, amounted to $150, and had been paid before the filing of the bill.

Heard before the Hon. WilliaM H. SiMpsoN. . On the 10th of August, 1893, appellee filed a bill in the city court of Decatur against the appellants to subject to the payment of debts due it from J. S. Sugars & Co., certain goods alleged to have been fraudulently sold by J. S. Sugars & Co. to Robert Beachman.

Tried before the Hon. W. P. Chitwood. The facts of the case are sufficiently stated in the opinion. If a bill or note is payable in a particular place, it will be treated as if made there, without reference to the place at which it is written, signed or dated.

Tried before the Hon. James J. BaNks. The facts of this case are sufficiently stated in the opinion. At the request of the plaintiff, the court gaye the general affirmative charge in his behalf, and refused a similar charge asked by defendant. To each of these rulings the defendant separately excepted. There was 'judgment for the plaintiff.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the appellee, Carroll Sparks, against the appellants, Joseph W. Naugher, and W. T. Naugher,. on the 1st day of March, 1894; and prayed for the complainant to be let in to redeem a certain tract of 640 acres of land, upon which the complainant had, on August 10th,1881, executed a mortgage to the appellant, J. W. Naugher, to secure a debt of $620.60.' The complainant, in his bill, alleges a full payment of…

Heard before the Hon. W. W. Wilkebson. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. Jere N. Williams. The bill in this case was filed on February 26,1892, by the appellant, S. M. Mitchell, against the appellees, The Capital City Insurance Company and the Merchants & Planters Insurance Company, to reform policies of insurance which had been issued by the respondents. The facts of the case are sufficiently stated in the opinion.

Heard before the Hon. Thomas Cobbs. The appeal is prosecuted by W. K. Saulsbury, the former receiver of the Lady Ensley Coal, Iron & Railroad Company, from a decree of the chancellor sustaining exceptions to the report of the register of a reference held to ascertain the amount due as solicitor’s fees for services properly rendered by the solicitor to the receiver pending his receivership.

Tried before the Hon. JohN B. Tally. This action was brought by the appellee, L. T. Webb, against the appellant, Benjamin Riddle, to recover damages for breach of warranty in the sale of a mule ; the alleged breach being that said mule was unsound in eyesight, which was not discernible by ordinary observation ; and that the salé was made by reason of the fraudulent misrepresentations of the defendant that said mule was wholly sound.

Abbeal from the Circuit Court of Montgomery. Tried before the Hon. JohN R. Tyson. Held: not a good plea.” — Bullock v. Perry, 2 Stew. & Porter 319. This case has never been overruled or modified by any subsequent deliverance of this court.

Tried before the Hon. A. P. Agee, Special Judge. This was an action of assumpsit, brought by the ap-pellees, Keith, Smith & Co,-, against the appellant, Lulie C. Cobb and H. H. Cobb, her husband. The defendants pleaded the general issue and a special plea, the substance of which is stated in the opinion. The plaintiff demurred to this plea on the grounds stated in the opinion, and this demurrer was sustained, to which ruling the defendants excepted.

Tried before the Hon. Thomas M. ArbiNgton. The appellant, J. C. Stratford, Jr., was arrested on a warrant issued upon an affidavit, charging him with the offense of carrying on a business without first having obtained a license as required by law, and in violation of section 411 of the City Code of Montgomery. Upon the trial before the recorder of the city of Montgomery, the defendant was found guilty and fined fifty dollars.

Heard before the Hon. Jebe N. Williams. The hill in this case was filéd on December 9, 1891, by the appellant, Eveline Munn, against thé appellees, to enforce an alleged vendor’s lien. The facts of the case are sufficiently stated in the opinion. On the final submission of the cause, the chancellor decreed that the complainant was not entitled to the relief prayed for, and ordered the bill dismissed. Complainant appeals from this decree, and assigns the same as error.

Tried before the Hon. JohN H. Disqub. - The facts of the case are sufficiently stated in the opinion. 1. The transaction between the two corporations, the Etowah Furnace Co. and the Etowah Mining Co., through the same general manager, is valid, and can only be assailed by a creditor for fraud. — O’Conner M. & M. Go. v. Coosa 'Fxtr-nacc Co., 95 Ala. 614, and authorities cited.

Tried before the Hon. J. M. Carmichael. This was a statutory real action in the nature of ejectment, brought by the appellees against the appellants, to recover certain lands specifically described in the complaint. The principal facts of the case are sufficiently stated in the opinion. The defendants offered to introduce in evidence an affidavit made by I).