Volume 111 — Alabama Reports

Tried before the Hon. John W. Bishop. The appellant was indicted, tried and convicted for burglary. The indictment contained 'three counts. In two of the counts the ownership of the house was laid in Will McClellan. In the other count the ownership of the house was laid in Jennie McClellan.

Tried before the'Hon. James A. Bilbko. The appellant was indicted, tried and convicted of arson in the third degree.' The prosecution was commenced by an affidavit made before the judge of the county court of DeKalb county, in which the defendant is charged ‘ ‘with willfully setting fire to or burning a barn of M. M. Beavers in DeKalb county, Alabama.” On the trial of the cause in the county court, the court allowed the solicitor to amend the affidavit by adding thereto the…

Tried before the Hon. Jesse M. Carmichael. The appellant in this case was indicted and tried for murder in the first degree, was convicted of murder in the second degree, and sentenced to the penitentiary for ten years. Under the opinion in this case it is not necessary to set out the facts in detail.

Tried before the Hon. James A. Bilbro. The indictment in this case, under which the appellant was tried and convicted, was preferred at the spring term, 1896, of the circuit court of DeKalb county, and was filed in open court on February 7, 1896.

Tried before the Hon. George E. Brewer. The appellant was indicted, tried and convicted for an assault with intent to murder one Monroe Debtor, and sentenced to the penitentiary for six years. The defendant interposed a plea of former acquittal, the averments of which are sufficiently set forth in- the opinion.

Tried before the Hon. Jesse M. Carmichael. The appellant was tried and convicted under the following indictment: “1. The grand jury of said county charge that before the finding of this indictment that Levi Walker feloniously took and carried away one hundred ears of corn of the value of forty cents, being apart of an outstanding crop of corn, the property of Carrie Jennings, Bart Jennings, Henry Jennings, Maggie May Jennings arid Carrie Lee Jennings. “2.

Tried before the Hon. Samuel H. Sprott. The defendant was indicted, tried and convicted for burglary. The facts pertaining to the only ruling reviewed on the present appeal are sufficiently .stated in the opinion.

Tried before the Hon. B. Gaillard, Special Judge. The appellant was indicted, tried and convicted for burglary. The indictment and the gist of the demurrers thereto, which were overruled, are stated in the opinion.

Tried before the Hon. Wm. H. Parks. The appellant was tried and convicted under a prosecution which was commenced by a complaint before a justice of the peace, in which it was recited as follows : “Personally appeared I. F. Whitehead, who, being duly sworn, deposeth and saith on osith, that he has probable cause for believing and does believe that the offense of obtaining money under false pretense by entering into a written contract to perform labor and failing or refusing…

Clair. Tried before the Hou. George E. Brewer. Tlie appellant was indicted, tried and convicted for the burglary of a store-house owned by John Shurbert.

Tried before the Hou. William H. Parks. The appellant was tried and convictei under the following indictment: “The grand jury of said county charge that before the finding of this indictment Simon Thomas unlawfully and maliciously killed one px of the value of twenty dollars and one cow of the value of twenty dollars, the personal property of Tom Orr, against the peace and dignity of the State.of Alabama.” The solicitor elected to prosecute for the killing of the cow charged…

Tried before the Hon. N. D. Denson. The appellant was indicted, tried and convicted for the larceny of a sheep. The evidence for the State tended to show that the defendant was guilty as charged; while the evidence for the defendant was in conflict with the State’s evidence, and tended to show that he was not guilty of stealing the sheep, but that said sheep in question belonged to him, the defendant.

Tried before tlie Hon. William H. Parks. The appellant was indicted, tried and convicted for gaming, in violation of section 4052 of the Code. The evidence for the State tended to show that the defendant was caught playing a game of cards in a shed room of a house which was occupied as a residence by a woman; that persons had been seen going to the house, day and night, and had been known to go there for the purpose of playing cards.

Tried before the Hon. Henry C. Speaks. The appellant was tried and convicted under the following indictment: “The grand jury of said county charge that before the finding of this indictment that John D. Scruggs, being at the time a public officer of said county, directly or indirectly, by himself or through another, purchased, dealt or trafnced in a claim or claims payable out of the county treasury of said county; or a claim or claims payable out of the fine and forfeiture…

Tried before the Hon. James W. Lapsley. The appellant was tried and convicted under an indictment, which charged that he, “with intent to steal, broke into and entered a railroad car, the property of the Alabama Mineral Railroad Company, a-corporation under the laws of the State of Alabama.” On the.trial of the cause, as is shown by the bill of exceptions, the evidence introduced for the State tended to show that the defendant broke into a railroad car that was standing upon…

Tried before the Hon. John. W. Foster. The defendant was indicted, tried and convicted for the seduction of one Delia Roney. The State introduced evidence tending to show that the defendant was guilty as charged in the indictment.

Tried before the Hon. N. H. Thompson. The appellant was tried and convicted under a complaint which charged that he “feloniously took and carried away a plow stock, the personal property of Henry Parker of the value of one dollar.” The evidence for the State, as is shown by the bill of exceptions, tended to show that during the year 1895, while the defendant was a laborer on the plantation of Henry Parker, he carried away from said plantation a plow stock, which the…

Tried before the Hon. Samuel E. Gkeene. The appellant was indicted, tried and convicted for the larceny of two hogs, which were alleged to have been the property of one Crawford Herring. The defendant filed several pleas, in which he set up that prior to the finding of the indictment, Crawford Herring had instituted an action of detinue againt the defendant for the recovery of the hogs, and that this action of detinue had been decided in favor of the defendant.

Tried before the Hon. 'James W. Lapsley. The appellant was tried and convicted under the following indictment: “The grand jury of said county charge that before the finding of this indictment that John Trammell conveyed into -the county jail of said county, at Anniston, a tool or tools, or instrument or instruments, towit, a saw or 'knife, useful to aid a prisoner to escape therefrom, with the intent to facilitate the escape of A. J. Jackson alias Jordan Jackson, whose…

Tried before the Hon. Georue E. Brewer. The appellant was indicted, tried and convicted of murder in the second degree, for killing one William Lankford, and sentenced to the penitentiary for ten years.

Tried before the Hon. William S. Thorington. The appellant was indicted and tried for the murder of Margaret Davis, was convicted of murder in the second degree, and sentenced to the penitentiary for 35 years. The testimony on the part of the State tended to show that in Montgomery county, before the finding of this indictment and in the night time, without provocation or excuse, the defendant shot Margaret Davis with a gun, from the effects of which wound she died.

. Triod before the Hon. John G. Winter. L. B. Pearce, who resided near Selma, Alabama, in Dallas county, was subpoenaed as a witness to attend the circuit court of Calhoun county, 'which met at… Held: is not in the language of section 4784, a commitment for contempt. 24 Amer. & Eng. Encyc. of Law. 17.1 ; In re Gunn, 50 Kan. 155; 3 Amer. & Eng. Encyc. of Law, 783 and notes. 2. Can a judge inquire into the legality of a commitment?

Appeal fyom the Chancery Court of Escambia. Pleard before the Hon. Jere N. Williams. The bill in this case was filed by the appellant against the apuellee, on November 12, 1894.

Tried before the Hon. William S. Anderson. The appellant, the Sullivan Timber Company, brought the present action againt Henry Brushagel, to recover an amount alleged to be due the plaintiff for lumber and timber sold to the defendant, apd used by him in the erection of certain buildings ■ and improvements upon real estate; and sought to establish a material-man’s lien upon the buildings and property.

Heard before the Hon. W. H. Simpson. The facts in the case are sufficiently stated in the opinion. 1. The complainant here could not, in any way, make itself a defendant to Howell’s bill, as this court has expressly decided. Renfro v. Goetter, 78 Ala. 311; Ex parte Printup, 87 Ala. 148.

Tried before the Hon. T. M. Stevens, Special Judge. This action was brought on March 19, 1895, by the appellee, B. A. Lide, against the appellant, R. A. Lee, to recover fifty dollars, as a forfeiture or penalty for knowingly charging and receiving another and larger fee than is allowed by law as probate judge, for recording a certain mortgage made by the plaintiff to the British and American Mortgage Company, Limited.

Tried before the Hon. James J. Banks. This was an action of trespass quare clausum fregit, by James A. Jenkins against the Bessemer Land & improvement Co. for the unlawful invasion of a burial lot, without the consent of plaintiff, and exhuming and carrying away the body of plaintiff’s child. .

Heard before the Hon. William H. Tayloe. The facts of the case are sufficiently stated in the opinion. This . decree was based upon the idea that the purchase-money was substituted in the place of the property from the sale of which it was realized, and' that it must be kept together until the death of the life tenant.

Tried before the Hou. John R. Tyson. This action was brought on September 15, 1894, by the appellant, Mrs. G. A. Mecklin, against the appellees, C. P. Deming and Dumas, Waters &'Co. The complaint contained two counts, which were as follows: 1. “The plaintiff claims of the defendants one hundred and fifty dollars damages for the conversion by them on or about the 10th day of November, 1893, of the following chattels, towit: three bales of lint cotton, the property of the…

Appioal from Probate Court of Montgomery.. Tried before tbo lion. J. B. Gaston. On February 14. 1894, J. F. Roper, wbo was then a bona fide resident of Montgomery county, Alabama, died, leaving at the time of bis death, certain minor children, towit, Effie, Maggie, Nellie and Robbie Roper.

Tried before the Hon. James W. Lapsley. This action was brought by the appellee against the appellant. The complaint contains two counts. The first claims $144.18, for work and labor done by plaintiff for defendant during the year 1893.

Tried before the Hon. N. D. Denson. This was an action of assumpsit, brought by appellants against appellees to recover on an account for goods sold and delivered. The plaintiffs appeal from a judgment in favor of defendants. Under the opinion, it is not necessary to make a detailed statement of the facts.

Heard before the Hon. Jeke N. Williams, The bill in this case was filed by the appellant, the American Freehold Land Mortgage Company, Limited, against Mattie O. Dykes, Thomas A. Dykes, her husband, and the Loan Company of Alabama. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. Thomas B. Boulhac. This was an action of trespass brought by the appellee, Fred D. Bodman, against the appellants, Shelby Grisham, sheriff of Colbert county, and C. G. Mason, surety on an indemnifying bond made by the plaintiff in an attachment suit of C. L. Watson against Kirby & Sons; and souglit to recover damages for the wrongful levy and taking of property under the writ of attachment.

Heard before the Hon. John G. Winter. ■ The bill in this case was filed by Heywood Tatum, who was a donee of the power of selection and appointment of a certain interest under the will of his father, Berry Tatum, Sr., and who, in the exercise of such power, selected the two minor children of Berry Tatum, Jr., as the beneficiaries thereof, and executed directly to them a deed settling the interest upon them.

Tried before tlie Hon. Samuel H. Sprott. This was a statutory action iu the nature of ejectment, instituted on September 9, 1893, by the appellees against the appellants, for the recovery of a tract of land specifically described in the complaint. The cause was tried by the court without the intervention of a jury, upon an agreed statement of facts.

Heard before the Hon. Tiiomas Cobbs. All the facts of the case are sufficiently stated in the opinion. Assignment for the benefit of creditors is always favored by the law, for the reason that it effects the desideratum of equality among creditors. — Reynolds v. Collins, 78 Ala. 98.

Heard before the Hon. Thomas Cobbs. JohnM. Sherer and Eda Jones filed the bill of complaint in this case against Consada Garrison and Martha A. Jetón, wife of J. S. Jetón. The averments of the bill disclose the following facts: In December, 1882, one. James A. Jones conveyed a tract of land he then owned, which was described in the bill, to Sarah Garrison. Said Jones was then a married man, but his wife did not join in the deed.

Tried before tlie Hon. John G. Winter, Special Judge. The facts of the case are. sufficiently stated in the opinion. All the .assignments of error in this record are based on the familiar and long settled rule of law, that the right of rescission in contracts of sale can not be exercised, unless both parties can be practically restored to the condition in which they were when the contract was.made.

Tried before the Hon. Thos. M. Arrington. The bill in this case was filed by the appellants against the appellees to review a decree ordering the foreclosure of the mortgage. The facts of the case are set forth at length in the opinion. The appeal is prosecuted by the complainants from a decree sustaining a motion to dismiss the bill for the want of equity, and this decree is here assigned as error. 1.

Tried before the Hon. H. A. Sharpe. This was an action brought by the appellee, Hugh M. DeJarnett, against the appellant, the Springfield Fire & Marine Insurance Company, to recover upon a contract of insurance, for the destruction of a small house in the town of Cleveland, Jefferson county, Alabama. The facts are so few upon which there is an agreement, that it is scarcely necessary to note them.

Tried before the Hon. Jesse M. Carmichael. The appellee, T. E. Dick, recovered a judgment in a justice of the peace court, against one J. T. Moore. Upon this judgment a writ of garnishment was issued and served upon C. T. McGraw, sheriff of Lee county.

Tried before the Hon. John B. Tally. The facts of the case are sufficiently stated in the opinion. 1. It is also clear that the contract was void under the statute of frauds.— White v. Levy, 93 Ala. 484; Martin v. Blanchett, 77 Ala. 288 ; Crommelin v. Thiess, 31 Ala. 412; Scogginv. Blackiuell, 36 Ala. 351; Bishop on Contracts, (Enl. ed.), 127. 2.

Tried before the Hon. J. R. Tyson. This action was brought by Henry H. Brown, as administrator of the estate of James L. Brown, deceased, on October 15, 1891, against the Louisville and Nashville Railroad Company, to recover damages for personal injuries resulting in the death of the plaintiff’s intestate, alleged to have been caused by the negligence of defendant’s employés. ' The complaint as originally filed contained five counts.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the appellants against the appellees. The decision on the present appeal renders it unnecessary to set out any facts, in addition to those stated in the opinion. On the final submission of the cause, upon the pleadings and proof, the chancellor decreed that the complainants were not entitled to the relief prayed for, and ordered the bill dismissed.

Tried before the Hon. ¥m. W. Wilicerson. This action was brought by the appellee, William E. Richie, against the Alabama Great Southern Railroad Company, to recover damages for personal injuries alleged to have been caused by the negligence of .the defendant or of its employes.

Tried before the Hon. James A. Bilbro. The appellant, W. R. Larkin, recovered a judgment against W. E Baty on a promissory note. Execution was issued on this judment, and levied upon two cows. The appellee, L. E. Baty, wife of the defendant in execution, interposed her claim to the cows levied upon, and thereupon, instituted a trial of the right of property to said cows. The facts disclosed upon the trial of such claim suit are sufficientlly stated in the opinion.

Tried before the Hon. Jambs J. Banks The facts of the case are sufficiently stated in the opinion. 1. The suit was against J. Garrison and wife, Mahala B., on an alleged joint contract, for material alleged to have been sold defendants jointly. The case was tried by the court without a jury. The evidence did not connect Mahala B. Garrison, in any way, with the transaction. Judgment was rendered in favor of Mahala B. and against J. Garrison.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the appellee against the appellants, and prayed for the sale of land for partition. The question presented on this appeal is, whether the deed made by William Forrester to one John Snow was an advancement to his daughter, Mrs. Robinson, from whom the complainant derived title. The facts in reference to this question are sufficiently stated in the opinion.

Heard before Hon. Thomas E. Knight, Special Chancellor . The bill in this case was filed on January 8, 1895, by the appellant, Easter Harrison, against the appellees, Mary Alexander and John B. Taylor, as the executor of Harriet Brown, deceased.

Tried before the Hon. John R. Tyson. This was a statutory action of ejectment, brought • by the appellants, J. Winter Thorington, Bessie M. Thorington and Jack Thorington, against the appellee, Bolling Hall, and sought to recover possession of an undivided one-third interest in certain specifically described lands. Issue was joined on the plea of not guilty.

Tried before the Hon. Wm. W. Wilkerson. This action was brought by the appellee against the appellant, to recover damages for the breach of a contract to do certain work and guaranteeing certain results therefrom. The suit was begun by attachment. The defendant pleacled the general issue and set off. The amount claimed as' a set off was the amount agreed by the plaintiff to be paid for a new crank shaft, which indebtedness was evidenced by a note of the plaintiff.

Tried before the Hon. J.R. Tyson. This action was brought by the appellants, McKay & Roche, against the appellees, the Southern Bell Tele■phojae & Telegraph Company and the Mobile Street Railroad Company, to recover damages for the alleged negligent killing of one horse and the injury of another horse, and for damages to the harness on them, the property of the plaintiffs.

Tried before the Hon. H. A. Sharpe. This action was brought by the appellee, James W. Fennell, against the appellant, the Highland Avenue & Belt Railroad Company, to recover damages for personal injuries, alleged to have been sustained by reason of the negligence of the defendant’s employes. The complaint, as amended, contained four counts.

Heard before the Hon. Jere N. Williams. The bill in this case was filed by the appellant, Barrie L. Holt, against the appellee, on February 9,1895. The bill avers that William Plarris, a resident of said county- and State, died in October, 1825, seized and possessed of the real estate described in the original bill, leaving a will, which was probated and recorded in the office of the probate j uclge of said county in October, 1825.

Tried before the Hou. Samuel E. Greene. The facts of the case are sufficiently stated in the opinion. The ordinance in question is unconstitutional and void. The provision of the Act of December 8, 1888, limiting the rights of cities to assess, levy or collect license taxes on occupations, is a general or public law. — Potter’s Dwarris on Statutes, p. 53. The attempt to confer on the city of Birmingham authority to levy and collect such taxes is unconstitutional and void.

Heard before Hon. W. W. Callaiian, Special Judge. The bill in this case was filed on December 17, 1891, by the appellee, J. Kate Baker, against Joseph Steiner & Sons, the appellants ; and prayed that a rescission of the contract of sale entered into by the complainant with the defendants be established, and that the mortgage executed on certain property by the complainant be delivered up and cancelled. The facts of the case are sufficiently stated in the opinion.

Appkal from the Circuit Court of Butler. Tried before the Hon. John B. Tyson. The appellees, Maas & Schwarz, brought an action of detinue against John W. Grant and B-. A Lee in the circuit court of Butler county, to recover seven bales of cotton. Subsequent to the institution of this suit, John J. Keyser, the appellant, made affidavit and gave bond, and interposed his claim for the seven bales of cotton, as provided for under the statute, (Acts 1888-89, pp. 57-58).

Tried before the Hon. William S. Anderson. This action was brought by the appellee, Margaret Master, against the appellant, Annie Brown, on November 28, 1891; and sought to recover damages resulting from the levy of an attachment made upon a stock of goods owned by the plaintiff. The nature of the suit, and the facts of the case are substantially the same as they were on the former appeal, as contained in the report of the case in 104 Alabama., 451.

Tried before the Hon. Jesse M. Carmichael. This action was brought by the appellee, T. F. Pitts, against the appellant, Kate Britt. The facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence the court, at the request of the plaintiff, in writing, gave the general a “Amative charge in his behalf; and refused the affirmative charge requested by the defendant. To each of these rulings the defendant separately excepted.

Tried before the Hon. M. A. Mason,'Special Judge. This was an action brought by the appellee, John W. Coleman, against the Mayor and Aldermen of Birmingham a municipal corporation, and the Elyton Land Company ; and sought to recover damages for injuries sustained by the plaintiff, by reason of falling through a hole in a bridge used as a public highway in the city of Birmingham ; it being alleged that by a contract between the defendants, the Elyton Land Company was required…

Tried before the Hon. C. K. Abraham, Special Judge. This action was brought by the appellees, Moore & Kornegay, against the appellants, J. I). A’exander and D. C. Alexander and A. D. Alexander, late partners, under the name and style of D. C. Alexander & Co. The complaint contained two counts, which were as follows: “1.

Tried before the Hon. Leon Duke, Special Judge. This was a statutory action of ejectment, brought bjr the appellee, H. B. T. Montgomery, against the appellants, to recover certain lands specifically described in the complaint. Issue was joined upon the plea of not guilty. The plaintiff’s right to the property sued for was rested upon a sheriff’s deed conveying the property in controversy.

Tried before the Hon. William S. Anderson. . This action ivas brought by Amos W. Butler against William H. Martin, the appellant. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. Thomas M. Arrington. This was a statutory action of detinue, brought by the appellee against the appellants. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. Jambs J. Banks. This was a statutory, claim suit. The facts of the case are sufficiently stated in the opinion. The cause was tried by, the court without tire intervention of a jury, and upon the hearing of all the evidence the court rendered judgment in favor of the plaintiff. From this judgment claimant appeals, and assigns the same as error. 1.

Tried before the Hon. John R. Tyson. This suit was brought by the appellees ,J. L. Hall and L. B. Farley against the appellant J. C. Haas.

Tried before the Hon. H. A, Sharpe. This action was brought by the appellant, Samuel F. Tibbs, against the appellee, the Alabama Great Soiithern Railroad Company, to recover damages for personal injuries, alleged to have been inflicted by reason of the negligence of the defendant or its employes. The complaint contained six counts. The negligence complained of in the sixth count of the complaint is sufficiently stated in the opinion.

Tried before the Hon. LeRoy F. Box. This action was begun before a justice of the peace by the appellee to recover $100 as the price of certain lumber sold by plaintiff to defendants. Defendant recovered a judgment in the justice court, and plaintiff appealed to the circuit court. In the circuit'court the complaint was amended by adding a count for money had and received.

Tried before the Hon. Thomas M. Arrington. This was an action brought by Kirkpatrick, Dunn & Co. against the Hartford Fire Insurance Company, to recover the amount of a loss by fire, covered by a policy of insurance issued by the defendant.

Tried before the Hon. James A. Bilbro. This is an action by Ephraim C. Gross to recover of John R. Coffey money alleged to be due the plaintiff on an agreement to refund usurious interest, charged and collected on a loan made by the defendant to the plaintiff. The original complaint was filed July 8, 1890, containing the common counts.

Heard before the Hon. Jere N. Williams. This bill in this case was filed by Thomas W. Peagler, as trustee of B. Wimberly, against J. C. Richardson, as the executor of J. T. Perry, deceased, for an accounting and settlement by the respondent of Perry’s administration of the trust fund that went into his hands as assignee. There was a decree rendered from which the present appeal is sought to be prosecuted. This decree is copied in the opinion.

Heard before the Hon. Thomas .Cobbs. The facts as to the execution of the mortgage, the transfer thereof and the conveyance of the-property included therein, are sufficiently stated in the opinion.

This was an impeachment proceeding commenced in the Supreme Court upon information filed by the Attorney-General upon a written order of the Governor charging the respondent, William C. Robinson, judge of probate of the county of Lee, in the State of Alabama, with, first, habitual drunkenness; second, willful neglect of duty; and third, incompetency; upon which charges it was sought to impeach the said William C. Robinson, and to remove him from the office of judge of…

Heard before the Hon. W. W. Wiliceeson. The bill in this case was filed on August 26, 1893, by the appellees agaijist the appellant. The material allegations of the bill, upon which the complainants base their right to relief, are sufficiently stated in the opinion.

■Tried before the Hon. John Moore. This action was brought by the appellant against the appellee. The facts of the case are sufficiently stated in the opinion. Upon the court sustaining the defendant’s demurrer to the plaintiff’s replication to defendant’s plea, the plaintiff declined to plead further, and the court rendered judgment for the defendant.

Tried before the Hon. James J. Banks. This was a suit by the appellee, the Alabama National Bank, upon a bond given by John A. Gauger & Co., as principals, and L. A. May and C. E. Thomas as sureties. All three of the obligors on said bond were originally made parties defendant to said suit, but the suit was afterwards dismissed as to John A. Gauger & Co., because not served. The consideration and the condition of said bond are copied in the opinion.

Tried'before the Hon. H. A. Sharpe. Appellant, as plaintiff, instituted suit against the appellee on the 30th day of April, 1892.

Heard before the Hon. H. A. Sharpe. The bill in this case was filed by the town of Avon-dale, a municipal corporation, against the appellants, the Avondale Land Co. and J. J. Calmont; and prayed to have a certain tract of land described in the bill adjudged and declared to be a public park, and that the defendants be enjoined from converting said park from a public to a private use, and from interfering with the public in the use thereof.

Tried before the Hon. Jesse M. Carmichael. This was an action brought by the appellee as admin-, istrator of J. J. Parker, deceased, against the appellant, to recover the price of goods sold by the plaintiff, as such administrator, to the defendant. The defendant pleaded the general issue and special pleas, the substance of which is stated in the opinion.

Tried before the Hon W. W. Wilkerson. The proceedings in this case were had upon a contest of the answer of a garnishee, which was instituted by Henry B. Gray the plaintiff, who had recovered a judgment against J. B. Francis, contesting the answer of the Perry Hardware Company, as garnishee, in response to a writ of garnishment which was issued upon said judgment.

Tried before the Hon. Jesse M. Carmichael. Appellees sued one Turner in ejectment for S. i of section 7, township 15, range 22, lying in.Bullock county, and known as the Cape Oswalt Place. Bodenheimer, the appellant, was let in to defend as landlord, and filed three pleas : 1st. Not guilty. 2d. Statute of limitations of ten years. 3d. Defendant “has held possession of the premises sued for under color of title.” Issue was joined on these pleas, and on them the case was tried.

Heard'before the Hon. Jere N. Williams. The’bill in this case was filed on May 31, 18 5, for the partition of lands. The bill is exhibited against the defendant W. H. Smith and his co-defendants, by Elias Chadwick, who is the father of all the defendants, except W. H. Smith. The bill alleges that James Smith died in December, 1877, in Bussell county, leaving a last will, which was duly executed and admitted to probate by the probate court of Bussell county in February, 3 878.

Tried before the Hon. James J. Banks. This was an action brought by the appellant against the appellee, and was commenced in a justice of the. peace court. Upon judgment being rendered by the justice of the peace for the plaintiff, the defendant appealed to the circuit court. ' The complaint contained two counts.

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

Tried before the Hon. N. D. Denson. This was an action brought by Macon county, against the Sloss Iron & Steel Company and 'E. W. -Rucker and íhomas Séddon. The complaint, as originally filed contained two counts, which were in words and figures as follows : “1st. The plaintiff, Macon county, claims of the defendants, Sloss Iron & Steel Company, a corporation, Thomas Seddon andE.

Heard before the Hon. James W. Lapsley. The bill in this case was filed on December 27th, 1892, by H. H. Griswold, the appellee, against the appellants. The facts averred in the bill are substantially as follows : Char'es Griswold, a son of the complainant, was killed while in the employ of the Louisville & Nashville Railroad Company by the explosion of an engine, on December 28th, 1891.

Tried before the Hon. James J. Banks. This was an action of trespass brought by the appellee, B. E. Wright, against the appellants, H. W. S.tephenson, John C. Morris and L. H. Posey; and sought to recover damages for the wrongful taking of certain property, alleged to belong to the plaintiff. The defendants pleaded the general issue, and the following special plea: “2: For further answer to the complaint defendants say that said property was the property of Jno.

Tried before the lion. B. F. Casrady. This was a statutory action of ejectment, brought by D. P. Gunnels against J. A. and M. A. Goodson. Upon motion, J. J. Swope was admitted to defend as landlord of Goodson. *J. A. Goodson filed a plea of disclaimer and M. A. Goodson and J. J. Swope filed a plea of the general issue, and upon this plea issue was joined and trial was had. .

Tried before the Hon. Thomas R. Roulhac. This action was brought by the appellee, William E. Drisdale, against the Memphis & Charleston Railroad Company, and Charles McGhee and Henry Fink, as receivers of the Memphis & Charleston Raiiroad Company, to recover damages alleged to have been sustained by the plaintiff, by reason of being put off of one of the trains operated on the Memphis & Charleston railroad. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. J. W. Foster. This was a statutory action of ejectment, originally brought by the appellees, J. L. Hall and L. B. Farley, trustees, against Joseph Logan and A. F. Fillingim, to recover certain property. Tho description of the property sued for as contained in the complaint is copied in the opinion. The defendant Fillingim filed a disclaimer and the defendant Logan demurred to the complaint upon the grounds stated in the opinion.

Tried before the Hon. Jesse M. Carmichael; This was a statutory action of ejectment, brought by E. Watson, as administrator of the estate of JR.. E. Jordan, deceased, against J. E. Prestwood and A. J. Fletcher ; to recover certain lands specifically described in the complaint. The facts of the case on this appeal,are substantially the same as those disclosed on the former appeal, and reported in 79 Ala. 416.

J. W. Foster. This was a motion made by the appellant, B. A. Rogers, for a summary judgment against the appellees, M. W. Carroll, as sheriff, and the sureties on his official bond, for failure to serve a summons and complaint in a suit in which the movant was plaintiff and one Hodge was defendant.

Tried before the Hon. John H. Disque. This was a statutory action of ejectment, brought by the appellee, A. J. Wilson, against C. M. McGhee, Henry Fink and Samuel Spencer, as receivers of the East Tennessee, Virginia & Georgia Railroad Company, to recover a strip of land used by the railroad company as a right of way, which passes through certain lands spe- cifically described in the complaint.

Heard before the Hon. W. W. Wilicerson. The bill in this case was filed by the appellant, Abram Williams, against the appellee, J. O.… Held: in a court of equity, to be a mortgage. — Jordan v. Garner, 101 Ala. 411; Milner v. Stanford, 102 Ala. 277 ; Adams v. Pilcher, 92 Ala. 474; IJodges v. Verner, 100 Ala. 612 ; Moseley v. Moseley, 86 Ala. 289 ; Peagler v. Stabler, 91 Ala. 308; Mitchell v. Wellman, 80 Ala. 16; Patton v. Beecher, 62 Ala. 579; Tamer v. Wilkinson, 72 Ala.…

Tried before the Hon. William W. Wilkerson. On the 17th day of May, 1894, Susan Ellis, the appellant, recovered of appellee, Pratt City, a judgment for $1,000 damages and $94.60 costs in an action of tort in the city court of Birmingham. On the 21st day of May, 1895, a garnishment on said judgment was duly sued out, and on the 22d day of May, 1895, said garnishment was served on the Southern Insurance Company, one of the garnishees.

Heard before the Hon. Jere N. Williams. The bill in this case was -filed by the appellants against J. B'. Alford, Sarah E. Alford and Cornelia Robinson, who was a sister of Sarah A]ford.

Appkau from the Chancery Court of Montgomery. Tried before the Hon. Jkkb N. Wiuliamr. Benjamin H. Micou was the guardian of his two daughters, Clara and Lucy.

Tried before the Pión. W. W. Wilkerson. . This was a statutory action of ejectment, brought by the appellees, Thomas E. and Hattie Roper, against Leonard Ayers and others. The plaintiffs claim title by virtue of a sheriff’s deed, conveying the property to L. L. Dean, their grantor, at a sale under an execution issued upon a judgment which one Kilpatrick had recovered against Benjamin Brown-lee. The defendants claim title as tenants of Benjamin Brownlee, the execution debtor.

Heard before the lion. W.H. Tayloe. The bill in this case was filed by the appellants against the appellee, J. K. P. Martin, as surviving partner of the firm of A. J. & J. K. P. Martin, and prayed-for a discovery of the assets of said firm, for the appointment of a receiver to take charge thereof, and to subject certain notes, accounts and dioses in action to the payment of complainants’ claim.

Heard before the Hon. JereN. Williams. The bill in this case was filed on September 2, 1895, by W. W. Milliken, the appellant, against E. L. Faulk; and prayed to have the defendant enjoined from trespassing upon lands described in the bill. The complainant relied on a lease-hold interest in the lands described in the bill, and his right of possession under said lease.

Heard before the Hon. Jere.N. Williams. The bill in this case was filed on January 20th, 1894, by the appellee, Sarah E. Kelly,'againt the appellants.