Volume 114 — Alabama Reports

Tried before the Hon. O. J. Semmes. The appellant, Joe Mitchell, was indicted, tried and convicted of larceny of money from a dwelling. The opinion of the court sufficiently sets forth the facts relating to the rulings of the trial court, which are reviewed on this appeal.

Tried before the Hon. Samuel E. Greene. The appellant was indicted and tried for the murder of one Adolphus Toler, was convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for twenty-five years. The only ruling of the trial court presented on the present appeal was the refusal to give the charge requested by the'defendant. The facts necessary to an understanding of the charge are sufficiently stated in the opinion.

The proceedings in this case were certified to tliis court upon a motion made by the State of Alabama, through the Attorney-General, directed to the judge of probate of Calhdun county, commanding him to certify to this court, all the'proceedings had before him on a habeas corpus proceeding, in which the petitioner, Tom Chandler, filed a petition for a writ of habeas corpus. The facts as disclosed by the return to the writ of certiorari are sufficiently stated in the opinion.

Tried before the Hon. A. D. Sayre-.- 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 ten years.

Tried before the Pión. N. D. Denson. At the May term, 1896, of the Circuit Court of Chilton county, upon the case of the State v. German Crosby being called, the defendant did not appear and made default, and a judgment nisi was rendered against him and his bondsmen. Notice of this judgment was issued and duly served upon the bondsmen.

Tried before the Hon. W. B. DeLoach. The appellant, Joe Houston, was indicted, tried and convicted for selling or removing personal property upon which there was a valid lien or claim. Upon the trial of the cause, as is shown by the bill of exceptions, the State offered in evidence a mortgage, which- was alleged to have been executed by the defendant, creating the lien or claim to the property the defendant was charged with having sold or removed.

Tried before the Hon. William S. Anderson. The appellant, ■ Samp Williams, was indicted, tried and convicted, with one Will Wood, for the murder of one Chris Chambliss, “by hanging him with a rope.” The charges, upon the refusal to give which the judgment is reversed and the cause remanded, are sufficiently set forth in the opinion, and it is unnecessary to set out the other rulings of the court to which exceptions were reserved.

Tried before the Hon. William S. Anderson. The facts of the case are sufficiently stated in the opinion. The jury had a discretion to say whether defendant should be punished by fine or in some other manner only. — Code of 1886, § 4500 ; Bibb v. State, 84 Ala. 13.

Tried before the Hon. William H. Parks. The prosecution against the appellant was commenced by an affidavit and warrant sworn out before and issued by the judge of the Criminal Court of Pike county.

Tried before the Hon. James J. Banks. The appellant was indicted and tried for manslaughter, and was convicted of manslaughter in the first degree, and sentenced to two years imprisonment in the penitentiary.

The facts of this case, which were shown on the renewal by the petitioner in this coixrt of his petition for discharge on habeas corpus, are sufficiently stated in the opinion. The bail bond given by the petitioner was for his appearance in the circuit court, until discharged by law; and under the facts of this case the petitioner can not be said to have been discharged by 'law. — Code of 1886, §§ 4420, 4427; Hawk'v. State, 84 Ala. 466 ; Matthew v. State, 92 Ala. 89.

Tried before the Hon. R. Gaillard, Special Judge. The appellants, John Thomas and Andrew Campbell, were indicted, tried and convicted for grand larceny, in that they stole a bale of cotton.

Tried before the Hon. James J. Banks. The defendant was indicted, tried and convicted for setting up and operating a slot machine, in violation of the act of the General Assembly, approved February 13, 1897. — Acts 1896-97, p. 901. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. S. W. Tate . This was a suit by the assignees of a promissory, note against the assignor. The suit was instituted on. November 22, 1894, by the appellants, Hop Caulfield and his wife, Mary Caulfield, against the appellee, Orrin Finnegan. The complaint as originally filed was demurred to, and was amended three different times ; demurrers having been interposed and sustained to each amendment.

<p> Bill in Equity to enjoin Enforcement of a Judgment. </p> <p>1. Injunction by receiver; when bill can be maintained to enjoin enforcement of a judgment. — A. receiver can, by bill in equity, enjoin the collection of a judgment rendered against the corporation of which he is the receiver, in a suit to which he was not a party; his remedy at law by motion to set aside and vacate the judgment, or by certiorari, not being plain, adequate and complete.</p>

Heard before the Hon. Jeke N. Williams. The bill in this case was filed on November 16, 1895, by the appellee, John Summerlin, against the appellant, Joel D. Murphree.

Tried before the Hon. Jesse M. Carmichael. This was an action of trover brought by the appellees against the appellants, to recover damages for the alleged conversion of seven bales of cotton. Issue was joined on the plea of general issue. The claim of the plaintiff and the defendants, respectively, and the other facts of the case necessary to an understanding of the decision, are sufficiently stated in the opinion.

Clair. Heard before the Hon. S. K. McSpadden. The bill in this case was filed by the appellants against the appellees. This is the third appeal in the case, and the facts are substantially the same as shown, by the report on the former appeals, found in 99 Ala. 60, and 105 Ala. 339 ; and special reference 'is here made to the facts as therein set forth. The other facts necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

Heard before the Hon. Jebe N. Williams. On May 12, 1891, E. C. Anglin and T. W. Anglin executed a mortgage on certain described lands to the American Freehold Land Mortgage Company, to secure a debt presently created, and this mortgage was duly recorded in the probate office of Barbour county on May 15, 1891.

Tried before the Hon. James J. Banks. This was a proceeding of ad quod damnum, begun in the probate court by the appellant, the. Birmingham Union-Railway Company, seeking to condemn certain lands owned by the Elyton Land Company, the appellee, to its use, for the construction of a street railroad. The petitioner was a street railroad company, organized under the general laws of this State. From a judgment in the probate court, appeal was taken to the circuit court.

Tried before the Hon. James W. Lapsley, This action was brought by the appellant, Addie N. McCaa, against the appellee, the Elam Drug Company, a corporation. The only question presented on the present appeal, is the ruling of the trial court upon the demurrers interposed to the complaint filed in the pause. The complaint contained three counts, which, exclusive of the claim for special damages,- which is stated in the opinion, are as follows : “1.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the appellants as sureties of their insolvent principal, Emil Lesser, against the appellees ; and sought to have granted to them the benefit of a set-off held by their principal. The facts of the case are sufficiently stated in the opinion.

Tried before tlie Hon. Leroy F. Box. This action was brought by the appellee, T. E. Ogle-tree, against the appellant, T. M. Hightower, on January 2, 1892 ; and counted on a promissory note, which was payable on the 1st day of October, 1891. This note was executed by J. T. Griffin and the defendant, T. M. Hightower.

Tried before the Hon. William S. Anderson. In this cause a garnishment issued from the court of John A. Tardy, a justice of the peace of Mobile county, at Mobile, on February 2d, 1895, and on the 4th day of February, 1895, it was served upon J. T. McNamara citing him to appear in said court on March' 1st, 1895, to answer as garnishe'e whether he was indebted to Jno.

This was an original application filed in the Supreme Court asking for a writ of mandamus. The facts of the case are sufficiently stated in the opinion.

Tried, before the Hon. A. D. Sayre, Special Judge. Appeal from the Chancery Court of Montgomery. Heard before the Hon. Jere N. Williams. These two cases, involving the same questions, were considered together on the present appeal, and one opinion rendered. In the case of the City Council of Montgomery against Will Parker, the appellee was arrested by policemen of said city for violating what is known as the hack ordinance of said city, which.-is copied in the opinion.

Tried before the Hon. John Moore. This was an action brought by the appellant, S. W. Holland, against the Southern Express Company.

Tried before the Hon. John G-. Winter, Special Judge. Held: must be reserved by bill of exceptions. 2 Encyc. of PI. & Pr. 390, note 1.

Tried before the Hon. John Mooke. This was an action of trover brought by the appellee, Peter T. Hurt, against the appellants, W. F. Davis & Son, warehousemen, to recover damages for the alleged conversón by the defendants, of three bales of cotton. Issue was joined upon the plea of the general issue.

Tried before the Hon. William W. Wilkerson. This was an action brought by the appellee, Joseph W. Lackey, against the appellant, the Kansas City, Memphis & Birmingham Railroad Company, to recover damages for personal injuries, alleged to have been received by the plaintiff while in the discharge of his duties as fireman on an engine of the Alabama Great Southern Railroad Company, by reason of the negligence of the employe of the defendant company.

<p>Appeal from the Circuit Court of Dale.</p> <p>Tried before the Hon. J. W. Foster.</p> <p>This action was brought by the appellees, Hall & Farley, against the' appellant B. P. Garner ; and counted upon a promissory note, which was shown to have been duly assigned to the plaintiffs and was commenced on December 24, 1895. The note sued upon and set out in the complaint was in words and figures as follows : “$100.00 Ozark, Ala., April 2, 1897.</p> <p>I promise to pay to the Alabama Midland Railway Company, as now chartered under the general railroad laws of this State, or any amendment that may hereafter be made either by general law or by act of the legislature, its order or assigns, one hundred dollars, at the banking house of Farmers & Merchants Bank, Troy, Alabama, to be paid in cash on demand at maturity of this note ; this amount being the total amount of my subscription to the capital stock of the Alabama Midland Railway Company. It is agreed that said amount, to-wit: One hundred dollars, mature, and become due and payable whenever the board of directors of said railroad company shall decide that the railroad has been finished to a point within" one-half mile from the center of the city of Ozark from one or the other of its terminal points, and that said road is of standard quage, laid with steel rail, publication of said decision of said board of directors to be made in one of the daily papers of the city of Montgomery, Alabama, shall be final and conclusive notice to me of the same. It is hereby agreed and made part of the condition of the contract, that if the said Alabama Midland Railway Company should fail to complete the work necessary to make this obligation binding by the first day of October, 1890, then this instrument-is null and void. I hereby waive all and every right which I may now or hereafter have under the constitution and laws of Alabama to have my personal property exempt from levy and sale under legal process and dioses in action from garnishment.</p> <p>[Signed.] B. P. Garner.”</p> <p>The complaint then continues as follows: "The plaintiff avers that said railroad of said Alabama Midland Railway Company was finished to a point within one-half mile from the center of the city of Ozark, Alabama, from one or the other of the terminal points, towit: Bainbridge, Georgia, and Montgomery, Alabama, prior to the first day of October, 1890, on, towit, the first day of May, 1890, and that said road is of standard gauge, and laid with steel rail.” To this complaint the defendant demurred upon the following grounds: "Said plaintiff’s doth not aver that the board of directors of said Alabama Midland Railway Company ever decided that said railroad has been finished to a point within one-half mile of center of Ozark, Alabama, from one or the other of its terminal points, and that said road is of standard gauge, laid with steel rail, publication made thereof in one of the daily papers of the city of Montgomery, Alabama, when the note sued on, as shown by complaint of plaintiffs, stipulated by the terms thereof that said action by said directors of said railroad was necessary, before the said note became due and payable — or said note should mature wherefore.” This demurrer was overruled, to which ruling the defendant duly excepted. The defendant then pleaded the general issue and the following special pleas : ‘ ‘4th. That said note sued on was given in compliance with the terms of a subscription. The condition of said subscription, being that defendant should have one-third share of the full paid up capital stock of the Alabama Terminal and Improvement Company of the value of 33 -I- dollars; also f share of the full paid up stock of the Alabama Midland Railway Company of par value of 66f dollars delivered to him contemporaneous, with the payment of said notes. And defendant avers that plaintiffs have never offered to deliver defendant said stock, and that said stock has been demanded of plaintiffs,’ and that plaintiffs refused or failed to deliver defendant said stock, and plaintiffs have not produced, or offered to produce any authority from said Alabama Midland Railway, whereby plaintiffs could issue ox-deliver to defendant stock as aforesaid, upon the payment of said note by defendant. 5th, That the Alabama Terminal and Improvement Company was fraudulently organized, and not in compliance with the laws of Alabama'. That fifty per cent, of the capital stock was xxot subscribed in good faith before the election of the board of directors and other officers. That twenty per cexit. of the subscriptioxx payable in money, was not paid in, or received by the commissioners authorized to receipt fox- the same, as required by law in such cases. That by fraudulent representations as to such facts, said -commissioners attempted to organize said corporation. That said corporation has never existed de jure. 6th. The defendaxit for further answer to said coxnplaint says that the note sued on is barred by the statxxte of limitation of six years. And of this the defendant puts himself upon the country. 7th. That said xxote sued oxx matured, and became due and payable when the board of directors of said Alabama Midland Railway Company should decide that the railroad had been finished to a point within one-half mile from the center of Ozark, from one or the other of its terminal points, axid that said road was of standard guage, laid with steel rails, publication of said decision of board of directors to be made in one of the daily newspapers of the city of Montgomery, Alabaxna, to be final and conclusive notice to defendant. Axid defendant doth aver that in compliance with said stipxxlatioxx and contract in said xxote said board of directors did publish in a daily newspaper of the city of Montgomex-y, Alabama, that said railroad had been finished to Ozark, Alabama, from oxxe of its terminal poixxts, and that said road was of standard guage, laid with steel rails, and in full compliance with the contracts of said Alabama Midland Railway Company, and declaring that said note was dixe, payable, and had matured on the 27th day of September, 1889— more than six years previous to commencement of suit in this cause. That note sued on is- barred by statute of limitation of six years — being an instrument not under seal. 8th. That said note became due on 27th day of September, 1889, for that the board of directors of the Alabama Midland Railway Company did decide and publish in the Montgomery Advertiser, a daily newspaper in the city of Montgomery, Alabama, on the 27th day of September, 1889, the fact that said road had been finished through and into Ozark, from one of its terminal points and that said road was of standard guage, laid with steel rail,- as stipulated in the contract sued on. Further declaring that said note was due and payable according to the terms of subscription to the stock of said railroad company as evidenced by note sued on, and that said railroad was finished within one-half mile of the center of Ozark on said 27th of September, 1889, wherefore said note is barred by the statute of limitation of six years — being a contract not under seal.”</p> <p>The plaintiffs demurred to the 4th plea upon the following grounds : 1st. Because the note sued on and set out in the complaint does not contain any such condition as that alleged in the plea. 2d. Because it does not appear from said plea that the delivery or tender to the defendant of the stock therein referred to was a condition precedent to the note sued on. To the 5th plea the plaintiffs demurred upon the , following grounds : 1st. The legality and irregularity of the incorporation of the Alabama Terminal & Improvement Company cannot be inquired into collaterally as attempted in said plea. 2d. The alleged illegality of the organization of the Alabama Terminal & Improvement Company cannot affect the validity of the defendant’s contract with the Alabama Midland Railway Company. 3d. Because it- does not appear from said plea that any of the misrepresentations by the commissioners were ever made to tire defendant. To the 6th plea, the plaintiffs demurred upon the following grounds : 1st. Said plea fails to aver the facts which are relied on to constitute a bar of the statute of limitation of six years. 2d. Because the note sued on is shown by the averments of the complaint to have matured and become payable on the 1st day of October, 1890.</p> <p>The plaintiffs moved to strike from plea number 7 all the averments thereof except' the last sentence, upon the following grounds : “1st. It is not averred that any decision was made by the board of directors of the Alabama Midland Railway Company, that the railroad had been finished to within one-half mile of the center of the city of Ozark, Alabama, from one or the other of its terminal points, that said road was of standard guage, laid with steel rails. 2d. Upon further ground, that the notice alleged to have been published by said board of directors is not alleged to have contained the statement, that said railroad was completed to within a half mile of the center of the city of Ozark, Alabama." Then the plaintiffs moved to strike out the last sentence of said plea, because it was a repetition of the 6th plea filed by the defendants . There was also a motion made by the plaintiffs to strike defendant’s 8th plea from the record. The court sustained the plaintiffs’ demurrers to the 4 and 5 pleas, and overruled the demurrers interposed to the 6th plea. The court also granted the plaintiffs’ motion to strike the defendant’s plea number 7, and also to strike the 8th plea from the record. To each of these rulings the defendant separately excepted.</p> <p>The evidence of the plaintiffs, as shown by the bill of exceptions, tended to show that the Alabama Midland Railway was complete, as stipulated for in the note of subscription sued on,' from Montgomery, Alabama, to Bainbridge, Georgia, on May 22, 1890, and that said road, as completed, ran within less than one-half mile from the center of the city of Ozark, in Dale county, Alabama.</p> <p>The defendant, as a witness in his own behalf, testified that the Alabama Midland Railway was running a regular freight and passenger schedule on their road between Montgomery, Alabama, and Bainbridge, Georgia, in the month of August, 1889 ; and that in September or October, 1889, the agent of the Alabama Midland Railway Company called on him for the payment of the note here sued on, stating that it was then due, and that the railroad was completed as stipulated. The defendant offered in evidence the notice which was printed in the Montgomery Daily Advertiser, a newspaper published in the city of Montgomery, Alabama, for ten days, to-wit, from September 27 to October 7, 1889, which notice was as follows:</p> <p>“Notice to subscribers. — The State of Alabama, Montgomery county. Notice is hereby given that the Alabama Midland Railway has been constructed and completed into and through the counties of Henry and Dale in Alabama, passed through and into Gordon, Ashford, Dothan, Midland City, Newton and Ozark; that said road is laid with sixty pound steel rail and thoroughly equipped, and built in a thoroughly first-class manner as prescribed in the contract, and subscriptions to the stock of said railway company, at the several points named, are now declared by the board of directors to be due and payable according to the terms of subscription.</p> <p>O.O. Wiley, President.”</p> <p>The plaintiffs objected to the introduction of this notice in evidence upon the following grounds : 1st. That said notice fails to show that the board of directors of said ■railroad company had decided that the railroad had been finished to a point within one-half mile from the center of the city of Ozark, from one or the other of its terminal points, and that said railroad was of standard guage and laid with steel rails. 2d. Because said notice failed to show that the said railroad had been finished to a point within half a mile from the center of the city of Ozark. 3d. Because said notice fails to show that said railroad was of standard guage. 4th. Because said notice did not comply with the terms of the conditions in the note sued on. 5th. Because it was not shown that said notice was based or predicated upon any decision of the board of directors of the Alabama Midland Railway Company. 6th. Because it was not shown that the board of directors had ever made a decision or decided in any manner that said railroad was completed as required by the condition in the note sued on, and authorized or directed the president, O. C. Wiley, or anyone else to publish said notice.” The court sustained the objection and refused to allow the notice to be introduced. To this ruling the defendant duly excepted. The defendant then offered in evidence the following notice published in Ozark, Alabama, for three weeks, commencing October 1. 1889 :</p> <p>“Notice to subscribers : Notice is hereby given that the Alabama Midland Railway having been finished to a point within a half-mile of the town of Ozark, and that said road having been built in a substantial and first-class manner and in conformity with the notice published, in the Montgomery Advertiser, the subscriptions to the capital stock of said company are declared by the board of directors to be due and payable, and notes of subscribers can be found with Farmers’ & Merchants’ Bank at Troy, Alabama, where the subscribers will call, or send and pay them. Mr. G. Peterson is the authorized agent to receive and remit the amount and issue the stock. Mr. J. F. McDonald is appointed special agent in collections. J. W. Woolfolk, president, and O. C. Wiley, vice-president.”</p> <p>The plaintiffs objected to the introduction of the above notice upon the following grounds : 1st. Because the Ozark Star was not a daily newspaper published in the city of Montgomery, Alabama. 2d. Because said notice was not in compliance with the condition contained in the note sued on, and also upon the additional grounds of objection made to the introduction of the notice offered in evidence above by the defendant published in the Montgomery Advertiser, dated September 27th, and signed by O. C. Wiley, president. The court sustained this objection, refused to allow the notice tobe introduced in evidence, and to this ruling the defendant duly excepted.</p> <p>Upon the hearing of all the evidence, the court at the request of the plaintiffs, gave to the jury the following written charge : "The court charges the jury that if they believe the evidence, they should find for the plaintiffs for the amount sued for.” To the giving of this charge the plaintiffs duly excepted. There were verdict and judgment for the plaintiffs. The defendant appeals and assigns as error the several rulings of the trial court to which exceptions were reserved.</p> <p>1. Note sued on being payable, on condition precedent, complaint was subject to demurrer in failing to allege performance thereof — 4 Encyc. of Pleading, 628; Griel & Bro. v. Solomon, 82 Ala. 91; Flouss v. Eureka Go., 80 Ala. 30 ; Bank v. Boykin, 9 Ala. 320.</p> <p>2. This note fell due, matured on notice and demand, for payment by directors of the Alabama Midland Railway Company, and barred by the statute of limitations of six years. — Thompson on Corporations, §§ 1755, 1746; 1 Cook oil Stockholders, §§ 89-115; 23 Amer. & Eng. Encyc. of Law, 811, 812, note 4.</p> <p>3. The term of subscription made the payment of note and delivery of stock mutual conditions, and the transferee of notes cannot recover until they show authority to issue or deliver said stock. — Maxim v. Morse, 8 Mass. 127 ; Allen & Go. v. Ferguson, 18 Wall. 1.</p> <p>1. Defendant’s seventh plea is, in effect,- a plea setting up the statute of limitations of six years, and is a repetition of defendant’s sixth plea. If there was any error in sustaining the- demurrer to this plea it was harmless, because defendant had the full benefit under his sixth plea of everything that could have been proved for his benefit under the seventh plea. Oivings v. Binforcl, 80 Ala, 421; K. C., M. & B. R. R. Go. .v. Higdon, 94 Ala. 286 ; Marelowe v. Rogers, 182 Ala. 510.</p> <p>2. It is contended that the plaintiffs are estopped from denying that the conditions of the note had been fully complied with, and the note due and payable in September, 1889, on account of the notice published and demand made for payment, as shown by • the bill of exceptions ; but there is no element of estoppel in this case binding on plaintiffs. • An estoppel must be mutually binding on the parties. — Bigelow on Estoppel, (5 ed.) 570 ; Sullivan v. Conway, 81 Ala. 154.</p>

Tried before the Hon. J. W. Foster. This suit was brought on October 27, 1894, by the appellant, the Troy Fertilizer Company, against the appellee, M. E. Zachry, as administratrix of the estate of M. P. Stephenson, deceased. The complaint contained two counts. The first count claimed the amount sued for as due on a promissory note, alleged to have been executed by M. P. Stephenson by her duly authorized agent, who was her husband, J. T. Stephenson.

Tried before the Hon. H. A. Sharpe. This action was brought by the appellee, Thomas C. Arnold; against the Southern Railway Company, to recover damages for personal injuries, alleged to have been caused by reason of the negligence of the defendant or its employes.

Tried before the Hon. James J. Banks. This action was brought by the appellee, Thomas H. Herndon, as the administrator of the estate of J: V. Neal, deceased, against the appellant, the Woodward Iron Company ; and sought to recover damages for the alleged negligent killing of the plaintiff’s intestate by the defendant.

Heard before the Hon. James E. Horton. The proceedings in this case were had upon a contest as to the probating of the last will -and testament of James W. Bridgforth, deceased. The will was offered for probate by the appellee, William Bridgforth, a son of the testator, and.was contested by the appellants, who were children and heirs-at-law of other children of the testator. The grounds of the contest were undue influence and mental incapacity to make a will.

Tried before the Hon. John G. Winter. This was an action brought by the appellant, Schleicher, Schumm & Co., against the appellee, the Montgomery Light Company.

Tried before the ITon. John R. Tyson. This was a statutory action of ejectment, brought by the appellant against J. W. Stephens and E. E. Stephens, his wife, who is the appellee, for a tract of land specifically described in the complaint. J. W. Stephens filed a plea disclaiming all right of possession, and thé defendant, E. E. Stephens, filed the following pleas: “1. Not guilty. 2.

Tried, before the Hon. William W. Wilkerson. This action was brought by the appellee, James Andrews, against the appellant, the Woodward Iron Company, to recover damages for personal injuries, alleged to have been caused by reason of the defendant’s negligence. The complaint contained seven counts.

Heard before the Hon. William PI. Tayloe. The bill in this case was filed by the appellant, Jane A. Sanders, against the appellees, Thomas M. Wallace and Thomas W. Williams, to recover a dower interest in certain lands, each of the defendants owning severally a tract of land in which the dower is claimed.

Tried before the Hon. John G. Winter, Special Judge. This was an action of assumpsit, brought .by the appellees, A. & L. Gans & Co., against the appellant, J. T. Watt; and counted upon the common counts for goods sold and delivered, claiming as the amount due $437.

Heard before the Hon. Jebe N. Williams. The bill in this case was filed on August 17, 1895, by A. T. McKenna, the appellee, against the appellant, the Baisin Fertilizer Company ; and prayed to have the defendant enjoined from a sale of the complainant’s property, which was levied upon under an execution issued upon a judgment obtained by the defendant against the complainant.

Tried before the Hoxx. James J. Banks. S. R. Wellborn, the appellant, brought axx action of assumpsit against one Steve McIntosh, and sued out an ancillary writ of garnishment, which was served upon the Howard-Harrison Iron Company. The suit was commenced in a justice of the peace court, where judgment was rendered agaixxst the defendant. The garnishee answered axi indebtedxxess to the defendant, and suggested the appellee, F. M. Buck, as claimant.

Chancery Court of Fayette. Pleard before the Hon. Thomas Cobbs.

Tried before the Pión. John G. Winter. This action was brought by the appellee, J. F. Browder, against the appellants, Abraham Brothers, and sought to recover damages for the breach of warranty . for the sale of a mule to .the plaintiff. The facts of the case are sufficiently stated in the opinion. Judgment was rendered for the plaintiff.

Tried before the Hon. John C. Carmichael, Special Judge. This was an action brought by the appellee, James H. Elliott,, against the appellant, J. M. Kitchens.

■ Tried before the Hon. William S. Anderson. This was an action of assumpsit, brought by the appellant, Francis G. Foxworth, against the appellees, Brown Brothers, and sought to recover the sum of $550 due plaintiffs January 1, 1893, as for money had and received by the defendants for the use of the plaintiff.

Tried before the Hon. James Weatherly, Special Judge. This was a statutory action of detinue, brought by the appellee, the Brown Shoe Company, against Mrs. M. A. Maxwell, to recover a certain lot of shoes specifically described in the complaint.

Tried before the Hon. J. W. Foster. This was an action of assumpsit brought by the appellants, Tillis & O’Neal, against the appellee, A. T. McKinna, to recover for goods, wares and merchandise sold by the plaintiff to the defendant.

Tried before the Hou. George E. Brewer. This action was brought by Mary Mitchell and her husband, M. T. Mitchell, to recover the statutory penalty for failure, after request, to enter the fact of payment or satisfaction of a mortgage on the margin of the mortgage record.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the appellee, William Banks, against the appellants. The principal material facts of the case are substantially the same as they were on the former appeal, and as shown by the statement of facts contained in the report of the case in 103 Ala. 436, to which report special reference is here made.

Tried before the Hon. William S. Anderson. This was an action of trespass quare clausum fregit, brought by the appellant, Charles F. Zundel, against the appellee, J. B. Baldwin ; and sought to recover damages for trespass committed by the -defendant on lands alleged to be the property of the plaintiff. The trial was had upon issue joined on the general issue.

Tried before the Hon. H. A. Sharpe. This was an action brought by the appellee, W. B. Golden, against the appellant, E. H. Simpson, in the city court of. Birmingham, and counted upon a negotiable promissory note executed by the defendant, and payable to the order of “ W. W. Achison, President.” Achison was the president of the Sylacauga Land Company. The defendant filed several pleas.

Tried before the Hon. George E. Brewer. The facts of the case are sufficiently stated in the opinion. The entire lot including the storehouse thereon was exempt as a homestead, under the facts disclosed in the abstract. — Semmes v. Wheatley, 7 So. Rep. (Miss.) 430; Turner v. Turner, 107 Ala. 465; Smith v. Stewart, 13 Nev. 65 ; Smythe on Homestead Exemptions, §§ 75-85; Garrett v. Jones, 95 Ala. 96; Thompson on Homestead, § 120.

Tried before tbe Hon. George E. Brewer. This action was brought by the appellant, J. T. Griffin, against the appellee, T. E. Ogletree, to recover damages for the breach of a contract.

Tried before the Hon. Jere N. Williams. The bill in this case was filed by the appellants against the appellees, on February 21, 1896. The averments in the bill show the following facts : The complainants are the children and heirs at law of James M. Clemmons, deceased. Clemmons died in the year 1862 or 1863.

Tried before the Hon. John R. Tyson. This action was brought by the appellant, A. J. Cowart, against the appellee, the Capital City Insurance Company ; and counted upon a policy of fire insurance. The facts of the case are sufficiently stated in the opinion. There were verdict and judgment for the defendant.

Tried before the Hon. John C. Anderson. The facts in the case are sufficiently stated in the opinion. 1. The charge asked by the defendant should have been given, even though the plea presented an immaterial issue. — Allison v. Little, 93 Ala. 150. 2. The jurisdiction of the circuit court in actions for recovery of specific property is limited to property of the value of fifty dollars or more. The value of the property is the true criterion.

Heard before the Hon. Jere N. Williams. The facts of the case are sufficiently stated in the opinion. It is a well established rule of chancery law, and conclusive of this case, that a party seeking a reformation of an instrument of this kind, and under such circumstances, must act reasonably prompt, and no court of equity will permit him to sit quietly for sixteen years, and until after the death of both grantor and grantee in the deed complained of.

Tried before the Hon. H. A. Si-iabpe. This is a suit, brought by H. A. Kline & Co., the appellees, against the appellant, the Georgia Home Insurance Company, on a fire insurance policy; and resulted on the trial below in a verdict and judgment for plaintiffs. From this judgment the present appeal is taken.

Tried before the Hon. James A. Bilbro. This action was brought by the appellant, George Sanders, against the appellees, McGhee & Fink, as receivers of the Memphis & Charleston Railroad Company, to recover damages for personal injuries alleged to have been caused by the negligence of the defendant’s employes. The facts of the case are sufficiently stated in the opim ion.

Tried before the Hon. H. C. Speaks. This is an action on the common. counts brought by the appellee, P. B. Timberlake, against the appellant, John H. Anderson. The suit was commenced by attachment.

. -Tried before the Hon. George E. Brewer. The proceedings in this case were had upon- a motion by the appellee, George Reid, for a summary judgment against the appellants, as sureties on the bond of tire deceased sheriff of Calhoun county, based upon the alleged failure of the said sheriff to pay over to the movant on demand, one hundred dollars collected by said sheriff upon an execution which was issued from the circuit court of Calhoun county upon a judgment recovered by…

Tried before the Hon. J. A. Bilbro. This was a statutory action of ejectment, brought by the appellee, Elizabeth Allison, against John Allison, John D. Neighbors, M. D. Culver and John Knight, for certain lands specifically described in the complaint'. Issue was joined upon the plea of not guilty. The facts disclosed upon the trial of the cause were as follows : Both parties claim the lands described in the complaint through one James L. Allison, deceased.

Tried before the Hon. James J. Banks. This suit was brought by the appellant, Thomas H. Broslin, against the appellee, the Kansas City, Memphis & Birmingham Railroad Company; and sought to recover damages for personal injuries. The complaint as originally filed contained three counts ; but the complaint was afterwards amended by filing additional counts numbered 4, 5, 6 and 7.

Tried before the Hon. John H. Bisque. This was a statutory action of ejectment, brought by the appellant against the appellee, to recover certain lands specifically described in the complaint. The plaintiff, W. P. Shahan, borrowed $3,000 from the People’s Building, Loan & Saving Association, a foreign company located in the State of New York, and executed a deed of trust on the lands sued for to a trustee, E. A. Walton, to secure the payment thereof, to said.

Tried before the Hon. Thos. R. Roulhac. Rankin & Co., the appellees, recovered a judgment in the circuit court of Barbour county on the 23d of November, 1886, against the appellant, J. C. Boylston, and an execution on the judgment was levied by the sheriff of Colbert county on the 30th day of July, 1887, on ten shares of stoclc in the Sheffield & Tuscumbia Street Railway Co., of the face value of $50 per share, which were on the books of the Sheffield & Tuscumbia Street…

Tried before the Hon. John R. Tyson. This was an action of trover brought by the appellant, E. A. Baker, against the appellee, the Troy Compress Company, to recover damages for the alleged conversion by defendant of a bale of cotton.

Heard before the Hon. Jeke N. Williams. The facts of the case are sufficiently stated in the opinion. 1. In cases of this kind, above all others, a much stronger case is required to maintain the suit, than to defeat it.

Tried before the Hon. H. C. Speaks. This action was brought by the appellant, Frank Beyer, against the Louisville & Nashville Railroad Company, to recover damages for the death of his minor son, Joseph Beyer, which was alleged to have been caused by the negligence of the defendant or its employes. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. H. C. Speake. This was an action brought by the appellant, John L. Brock, against the Louisville & Nashville Railroad Company, to recover damages for failure of the defendant to deliver to the plaintiff certain goods which were received by the defendant as a common carrier for transportation to the plaintiff.

Tried before the-Hon. John R. Tyson. This action was brought by the appellant, the Brush Electric Light & Power Company of Montgomery, Alabama, against the City Council of Montgomery; and ■sought to recover an amount alleged to be due from the defendant to the plaintiff, for certain lights, which had •been furnished by the plaintiff and used by the defendant. The material facts of the case are sufficiently stated in the opinion.

Tried before the Hon. James J. Banks. James S. Morgan, the administrator of Rufus King, deceased, brought the present action against the Louisville & Nashville Railroad Company, to recover damages for the death of the plaintiff’s intestate, who was, at the time, a brakeman on one of the defendant’s trains. The complaint as amended contained five counts.

Tried before the Hon. Jambs A. Bilbko. By the complaint in this case, as originally framed, W. A. Mitchell-, the appellant, claimed of Kelt Thomas, the appellees, and one Sam Henry $200, for wrongfully taking .one yoke of oxen the property of the plaintiff, and a like sum for the conversion by them of said property. The plea was the general issue.

Tried before the Hon. J. W. Poster. This was a statutory real action in the nature of ejectment, brought by the appellant, Jane Branch, against the appellee, Annie Smith. The facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence, the plaintiff requested the court to give to the jury the general affirmative charge in her behalf; and separately'excepted to the court’s refusal to give said charge.

Heard before the Hon. William H. Simpson. The bill in this case was filed January 30, 1894, by the appellees, C. A. Robinson and wife, Joanna S. Robinson, hereafter called Mrs. Robinson, to foreclose a mortgage executed by the North Alabama Improvement Company, hereinafter called the Improvement Company, to Mrs. Robinson, on May 20, 1887, to secure payment of two notes for $8,333.33, each, bearing date May 20, 1887, made by Improvement Company and payable to Mrs. Robinson…

Heard before the Hon. Emmett F. Crook. The proceedings in this case were had upon a petition being filed by appellees, addressed to the judge of .probate of Calhoun county, asking for an order establishing a stock law district in said county.

Tried before the Hon. James A. Bilbbo. This was an action of trover, brought by the appellee, Mary J. Sherbet, against the appellant, A. G. Collins, to recover damages for the alleged conversion of one mule named Belle, one mule named Gip, one cow, two yearlings, one two horse wagon, two sets plow gears, two blind bridles, and one pair wagon lines.

Heard before the Hon. G. C, Ellis, Special Chancellor. The bill in this case was filed by the appellants, S. J. Brasher and W. J. Raper, against the appellee, L. D. Miller, as county superintendent of education of Calhoun county, and one Mrs. Jessie C. Nelson, a teacher in a township school in said county.

Clair. Tried before the Hon. George E. Brewer. This was a statutory action of ejectment, brought by the appellant against the appellees. Held: “That a complaint in ejectment was fatally defective which did not disclose the county or State in which the lands were situated, and that the defect was not cured by answer.” — Alexander v. Wheeler, 69 Ala. 342; Carlisle v. Killebrew, 91 Ala. 352.

Tried before the Hon. James W. Lapsley. This action was brought by the appellee, Hannah Anchors, as administratrix of the estate of J. F. Anchors, deceased, against the Louisville & Nashville… Held: that a railroad operated by steam and using what is ordinarily known as a dummy engine, was within the provisions of the statute above cited; and this decision was followed and reaffirmed in Ensley Rail%vay Co. v. Chewning, 93 Ala. 24.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the appellees against the appellant. The facts of the case are sufficiently stated in the opinion.

Heard before the Hon. Jere N. Williams. The facts in the case are sufficiently stated in the opinion. cited Code of 1886, §§ 1735, 3544; Cartwright v. Barn-burger, 90 Ala. 405 ; Comer v. Heicllebach, 109 Ala. 220. The chancellor did not err in overruling the motion of the complainant.

Tried before tbe Hon. J. W. Foster. This was an action brought by the appellant,. John M, Seals, against the appellees, M. W. Carroll, sheriff and his bondsmen, for levying upon and selling plaintiff’s property under an execution issued in favor of Magovern & Co. against L. J. Seals, wife of the plaintiff. The facts of the case are sufficiently stated in the opinion.

Heard before the Hon. W. M. Waltrip. The facts of the case are sufficiently stated in the opinion. 1. The contest in this case survives and can be revived or substituted against the contestee’s successor in office. By virtue of the statute, section 2600 of the Code of 1886, all actions in this State survive, except those instituted “for injuries to the person and reputation.— Code of 1886, § 2600.

Tried before the Hon. George El Brewer. This action was brought by the appellee, Mary A. Jones, as the administratrix of the estate of John Jones, deceased, against the Alabama Midland Railroad Company, to recover damages for the alleged negligence of the defendant, which resulted in the death of the plaintiff’s intestate.

Tried before the Hon. James W. Lapsley.- This was a suit commenced by attachment by the appellant, the First National Bank, against A. D.… Held: as collateral security for the debt here sued on, solvent notes of sundry parties — secured by mortgages — amounting in the aggregate to more than $5,500 in value, and that afterwards, to-wit, on or about October 1st, 1891, plaintiff, without the knowledge or consent of this .defendant, surrendered and delivered said collateral…

Heard before the Hon. Jere N. Williams. The facts of the case are sufficiently stated in the opinion. 1. As a bill of review upon newly discovered matter, while the bill avers that the fraud alleged was not discovered until after the decree was entered, it wholly fails to show, by appropriate averments, that by the use of due diligence,-the complainant could not have discovered the alleged fraud before the rendition of the decree.

Heal’d before the Hon. William H. Simpson. The bill in this case was filed on May 11, 1896, by the appellant, James E. Stevens, against the appellee, John Hertzler, Jr., and as amended evened the following facts : The defendant and others, being the owners of stock in the Hagey Hospital Association of Texas, executed to the complainant, on January 8, 1894, a written contract, in which they recited that they were desirous of selling their respective and several holdings of…

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the appellants against the appellees. The purpose of the bill and the facts of the case are sufficiently stated in the opinion. On the final submission of the cause, on the pleadings and proof, the chancellor decreed that the complainants were entitled to the relief prayed for, and ordered accordingly. From this decree the present appeal is taken, and the same is here assigned as error. cited 1 Brick.

'Appeal from the Circuit Court of Etowah. Tried before the Hon. James J. Banks. On October 12, 1894, the appellee, Telly John Burgess, who sues by his next friend, L.E. Burgess, brought the present action against the appellant, the Alabama Great Southern Railroad Company, to recover damages for personal injuries.

- Heard before the Hon. John G. Winter. The bill in this case, was filed by the appellants, Hall & Farley, as trustees, against Fox Henderson and the Alabama Terminal & Improvement Company and the Farley National Bank, to collect a judgment which was recovered by the receivers of the Fai’ley National Bank against the Alabama Terminal & Improvement Company, and subsequently transferred to the complainants.

Heard before the Hon. William H. Tayloe. The bill in this case was filed by the appellees, Min.erva Brown and others, as heirs at law of Malinda Gkillard, who was their, grandmother, against the appellant, Leopold Kramer; and sought to have a deed executed by Malinda Gaillard to the respondent, Kramer, declared to be a mortgage, and that the complainants be allowed to redeem thereunder.

Heard before the Hon. William H. Tayloe. The bill in this case was filed by the appellants against the appellees. The purpose for which the bill was filed, and the facts of the case are sufficiently stated in the opinion. On the final submission of the cause, on the pleadings and proof, the chancellor decreed that the complainant was not entitled to the relief prayed for, and ordered the bill dismissed.

Heard before the lion. John G. Winter. The bill in this cause was filed under section 2000 of the Code of 1886, by Emma Davis and others, heirs of B. L. Barksdale, deceased, against the executor, E. P. Morris-sett and Amanda Barksdale, Martha Barksdale and Mose Barksdale, legatees under the will, to have declared the probated will of B. L. Barksdale invalid, and to set aside the probate thereof. The original bill was filed March 28th, 1896.

Heard, before the Hon. IT. A. Sharpe. The complainants, who are the appellants here, exhibited their original bill in -the nature of a bill of review in the city court of Birmingham against the appellee, whereby they sought to impeach, and have set aside, a decree of the city court rendered in favor of appellee.

son. Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the appellants, as creditors of W. E. Perryman & Co., against the appellees ; and sought to set aside as fraudulent and void a conveyance by said firm of certain property. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. John W. Bishop. The proceedings in this case arose from the appellant, Thomas J. Wilson, filing a contest in the probate court of Talladega county, in which he contested the election of the appellee, M. M. Duncan, to the office of tax collector of Talladega county.

Á’ppbal from the Circuit Court of Barbour. Tried before the Hon John R. Tyson. ' On the 10th day of July, 1895, suit was commenced •before a justice of the peace in Barbour county against appellant, Mariali Walton, for unlawful detainer of a certain house and lot in the city of Eufaula. The summons in said cause commanded the defendant to appear to answer the complaint of'N. C. Vaughan, agent for H. H. Parker.

Heard before the Hon. William B. Bridges. On January 4, 1894, J. F. Anderson died testate at Ms home in Franklin county, Tennessee, and on January 15, 1894, his will was duly probated in the county court of said Franklin county, Tennessee, and in said month, the appellant, Louie Keith, who had been named as one of the executors in the will, was duly appointed and qualified as executrix.

Tried before the Hon. H. C. Speaks. This was a statutory action of detinue brought by the appellant, Emily J. Cox, against the appellee, Green Boyett, to recover the possession of a yoke of oxen taken from the possession of herself and husband, and sold by the sheriff at an execution sale under a judgment against her husband. The plaintiff claimed title to the property by a series of exchanges which her husband had made.

Tried before the Hon. John Moore. The appellant, Osborne Parker, was tried and convicted under the following indictment: “The grand jury of said county charge that before the finding of this indictment Osborne Parker, with intent to steal, broke into and entered the dwell-house of Augustus Moore, alias Gus Moore, against the peace and dignity of the State of Alabama.” After the return of the verdict of guilty, the defendant moved the court in arrest of judgment, upon the…