Volume 116 — Alabama Reports

Tried before the Hon. Jambs J. Banks. This was an action of assumpsit, brought by the appellant against the appellee. The cause of action and the substance of the six counts of the complaint are sufficiently stated in the opinion.

Tried before the Hon. N. D. Denson. This was a statutory action of ejectment brought by the appellant, as administrator of the estate of Elizabeth Snowden, deceased, against the appellee, Mrs. Margaret Arends, to recover the possession of certain specifically described strips of land off of three sides of lot number three in block fourteen in the town of Brewton.

Tried before the Hon. Thomas B. Boulhac. The appeal in this case is from the rulings, proceedings and judgment in the circuit court of Colbert county on an appeal to said court from the action of the Commissioners court of Colbert county in proceedings to open a public road.

Heard before the Hon. Jbre N. Williams. The bill in this case was filed by the appellants, R. P. Dexter and Phares Coleman, against the appellees, to enforce the specific performance of… Held: was increased to $70,000, and the profits which complainants and LeBron were to receive reduced to $15,000. Said LeBron and complainants agreed to increase the amount which McClellan and Scheerer would receive to $70,000, and to reduce the amount which would go as profits to $16,000.

Heard before the Hon. A.'D. Sayre. The bill in this case was filed by the Mobile & Montgomery Railway Company and the Louisville & Nashville Railroad Company against the Alabama Midland Railway Company. The allegations of the bill and. the facts of the case are set forth at length in the opinion.

■ Tried before the Hon. J. W. Mabry. This was a suit brought by the appellant, J. Bunzel, against the appellees, Maas & Schwarz; and counted upon six promissory notes for $500 each. The notes were executed by I. L. Levy. The notes were executed on February 24, 1892, and were payable to the appellees a't the Commercial Bank of Selma, on different and specified days, from the 20th of September, to the 25th of October, 1892, and endorsed in blank by the appellees.

Tried before the Hon. J. J. Banks . This action was brought by the appellants, M. Forst, and her husband, A. Forst, against H. N. Leonard, S. J. Alfred, William B. Gere, John A. Hall, E. D. Phillips and E. M. Robinson ; and sought to recover of the defendants a certain designated sum of money, for the breach of the conditions of a bond, which was executed by the defendants to secure the faithful performance by the defendants, H. N. Leonard and S. J. Alfred of a building…

Tried before the Hon John Moore. This was an action of detinue, brought by the appellants against the appelle. The facts of the case are sufficiently stated in the opinion. There were verdict and judgment for the defendant.

Heard before the Hon. H. A. Sharps. These two cases are identical in all of their features, except as to the names of the complainants; Thomas C. Thompson and Julia N. Thompson being the. complainants in one bill, and Adam O. Riser and his wife, Eula Riser, being the complainants in the other bill. The transactions in each were identical; and the facts of the two cases are set forth at length in the opinion.

Heard before the Hon. Jebe N. Wilmams. The bill in this case was filed by the appellee, Georgia A. Prestwood, against the appellants, the Troy Fertilizer Co. and W. D. Henderson and Charles Henderson. The purposes of the bill and the facts of the case are sufficiently stated in the opinion.

Heard before the Hon. John G. Winter. This was an appeal from a decree of the judge of the city court sitting as chancellor, decreeing that appellees who were defendants to a bill filed by the appellants, were entitled as remaindermen under the will of their ancestor, to certain property ; and the rendition of this decree is here assigned as error. The facts of the case are sufficiently stated in the opinion. 1.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the appellant, Hyland Randolph, Jr., and averred the following facts : Hyland Randolph, Sr., the father of complainant, desiring to donate to his son the lands in question, purchased them from one Briggs, who was then the owner, for the use and benefit of the complainant; and on the 6th day of March, 1874, said Briggs, at the request of complainant’s said father and for the consideration expressed in the…

Tried before the Hon. James J. Banks. ■ This is the third appeal in this case. There was no new testimony on the last trial, but the issue was narrowed down to the one question left open by this court in its decision on the former appeals. Most of the assignments of error have been substantially passed on by the court in its former decisions. — Birmingham Nat. Bankv. Bradley, 103 Ala. 109 ; Ih. 108 Ala. 2Ó5. The appellant, the Birmingham National Bank, sued John Gr.

Tried before the Hon. Jambs W. Lapsley. This was a statutory action in the nature of an action of ejectment, brought by the appellant against the appellee to recover a lot in the city of Anniston ; and was instituted on February 3d, 1897. It was tried on the plea of the general issue.

Tried before the Iiou. S. H. Spbott. This was an action of assumpsit, brought by the appellant, J. W. Steen, against the appellee, George H. Sanders, and was founded upon an account for merchandise, alleged to have been sold by the plaintiff to the .defendant. The complaint contained the common counts. Issue was joined upon the pleas of the general issue and the statute ol frauds.

Tried before the Hon. H. C. Speake. This action was brought.'by the appellant, Asa Griffith, against the appellee, J. H. Karter. The complaint contained three counts, one in trover and two in case, claiming five hundred dollars damages for the talcing by defendant of 3,500 pounds of seed cotton and one bale of lint cotton. The cause was tried upon an agreed statement of facts, upon issue joined upon the plea of not guilty.

Heard before the Hon. John H, Disque. The facts of the case are sufficiently stated in the opinion. 1. All improvements placed on lands by a purchaser or his sub-purchaser, which partake of the reality, will inure to the purchaser at the vendor’s sale. — Johnston v. Smith, 70 Ala. 108 ; 2 Warvelle on Vendors, 710, § 17. 2.

Heard before the Hon. Jebe N. Williams. The facts of the case are sufficiently stated in the opinion. 1.

Tried before the Hon. James J. Banks. This was an action for money had and received, brought by the appellant, James A. Paulk, against the appellee, the Jasper Land Company, on July 27th, 1891. The plaintiff claimed the money sued for as having been paid under a contract, which was signed by the plaintiff on March 16th, 1888, which the. plaintiff in his complaint alleges was never signed by the defendant.

Tried before the Hon. S. H. Sprott. This was an action for money had and received, brought by the appellant, Mrs.- G. J. Hollingsworth, against the appellee, S. H. Hill. The plaintiff introduced in evidence the following receipts : “May 12, 1891. Received from Jno. Hollingsworth, fifty dollars, on deposit. S. H. Hill.” “Received from Mrs. G. J. Hollingsworth, one hundred dollars to lend on good security for her.

<p> Habeas Gorpits Proceedings. </p> <p>1. Constitutional law; construction of act establishing inferior court of criminal jurisdiction for city of Birmingham; legality of contract for hire of city convicts. — The, act approved February 11, 1895, entitled “An act to establish an inferior court of criminal jurisdiction in the city of Birmingham, to define its powers, and to provide for the election of a judge and the appointment of a clerk therefor,” (Acts of 1891-95, p. 527), conferring on such court exclusive jurisdiction of all offenses against the by-laws and ordinances of the city, and giving power and authority to such court to allow a defendant therein to confess judgment for the fine and costs, and if such fine and costs be not paid or judgment confessed therefor, then to sentence the defendant to hard labor for the Mayor and Aldermen for such fine and costs, section 11 of said act,' which provides “that the Mayor and Aldermen of Birmingham shall establish a system of hard labor or may contract to have all persons sentenced to hard labor for said city worked and confined anywhere in Jefferson county, under the same rules, regulations and conditions as are prescribed by law for confining and working county convicts,” is not obnoxious to section 2 of Article IV of the Constitution, which requires that the subject of each law shall be clearly expressed in its title; the enactment of said section 11 being necessary in order to have carried out the sentence to hard labor for the Mayor and Aldermen of the city, and being a necessary complement to the powers of the court conferred by the statute.</p> <p>2. Same; construction of city charter; legality of contract for hire of city convicts. — Under the charter of the city of Birmingham, (Acts of 1890-91, p. 114), which confers on the Mayor and Aldermen authority to contract and do all other acts in respect of the powers therein granted, and which, by section 21 thereof, provides that the Mayor and Aldermen shall have full power to make ordinances for the good of the city, and “to affix thereto penalties for a violation of the same by fine * * * and by imprisonment to hard labor for the city * * * * one or both,” and that all persons convicted for a breach of any such ordinances “failing to pay or secure such fine, may be imprisoned * * * or placed to hard labor for the city until such fine and costs are paid,” a contract by the Mayor and Aldermen for the hire of persons sentenced to hard labor on conviction for violation of the city ordinances, is authorized as being within the power conferred, and is valid.</p> <p>3. Judgment and sentence; sufficiency thereof. — Upon the conviction of a defendant, a sentence, after imposing a certain term at hard labor, that “if the fine and costs are not paid, defendant is sentenced to hard labor,” as a sentence to hard labor for the payment of fine and costs, is too indefinite and is insufficient. The court should first judicially ascertain and adjudge that the fine and costs are not paid, and then sentence accordingly as provided by law, instead of leaving the term open as an undetermined fact.</p>

Heard before the Hon. Jere N. Williams. The bill in this case was filed by the appellant, Gracie E. Kindred, against the appellee, the New England Mortgage Security Company, to remove a cloud on the title to the land of the complainant, by reason of a mortgage executed by herself and husband, E. B. F. Kindred, thereon, and the sale thereunder at which the respondent became the purchaser.

Tried before the Hon. J. M. Carmichael. This was a statutory claim suit, which was instituted by the appellees interposing a claim to certain property levied upon under an attachment sued out by the appellant, W. R. McKenzie, against one H. Blumberg. Issue was made up between the plaintiff in attachment and the claimants for the trial of the right of property, under the direction of the court.

Tried before the Hon. H. A. Si-iarpe. This action was brought by the appellant, C. C. Bur-son, against the appellee, the Louisville & Nashville Railroad Company, to recover damages for personal injuries alleged to have been inflicted by reason of the negligence of the defendant or its employes. To the first eight cotmts of the complaint, which counted upon the negligence of the defendant, the defendant pleaded contributory negligence.

Tried before the Hon. A. D. Sayre. The proceedings in this case were had upon a petition asking for a writ of mandamus, which was exhibited by the State of Alabama, on the relation of Edward J. Smith, as Treasurer of the Board of Control of the Agricultural School and Experiment Station of the Fourth Congressional District of the State of Alabama, and was filed on August 12, 1897.

Heard before the Hon. Thomas R. Roulhac. ■ R. J. Thurmond, a citizen of Colbert county, filed his petition, addressed to the Judge of the Circuit Court of Colbert county, -asking for a writ of mandamus, to compel the court of county commissioners of Colbert county and the treasurer of Colbert county to issue $100,000 worth of bonds which were authorized to be issued under the provisions of the act approved February 12, 1897, (Acts of 1896-97, p. 820), for the purpose of…

Tried before the Hon. John Moore. This was an action brought by H. H. Malone against the appellee, Escambia county ; to recover of the defendant for professional services rendered by the plaintiff to one Tom Dower. The first and second counts of the complaint, as originally filed, were upon.the common counts for money due on an account, and for wort and services performed. ■ The third count of the complaint was as follows; “Third.

Tried before the Hon. James J. Banks. Appellee, S. Nordholm, sued one E. P. Foley in 1891 in the-justice court of W. T. Poe. Appellee recovered judgment against Foley. Appellee also sued out garnishment proceedings against G. B. Edwards, the appellant in this case, and obtained a judgment against Edwards on his answer of indebtedness.

Heard before the Hon. H. A. Sharpe.- The bill in this case was filed by the appellants as creditors 6f B. Somers & Co. against the appellees, the Berney National Bank and B. Somers & Co. The bill averred that on December 4, 1893, the Berney National Bank sued out an attachment in the city court of Birmingham against respondents, B. Somers & Co., and had it levied on one stock of dry goods in store No. 2019 First Avenue, in said city, worth $15,000 ; one complete set .of…

Heard before the Hon. W. H. Simpson. On February 12th, 1891, J. R. Martin executed two notes for $113,62, each, payable with interest to E, E. Martin in three and six months after date, which notes said E. E. Martin, on the same day, for a valuable consideration, assigned to Berry, Demoville & Co., the appellees in this case. On May 15th, 1891, the first note matured, and was not paid; it was duly protested and the maker J.R. Martin notified.

Tried before the Hon. N. D. Denson. The appellee, William Gray, brought the present action against the appellant, A. T. Fuller, and counted upon the common counts.

Tried before the Hon. M. E. Milligan, Special Judge. The appellant, who was the defendant in the court below, appealed from a judgment in favor of the appellee, and assigns as error the giving of the general affirmative charge in favor of the plaintiff. The facts of the case are sufficiently stated in the opinion. The plaintiff in this suit was not entitled to maintain .it.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the appellant against the appellees; and prayed for the dissolution of a partnership existing between the complainant and the defendant by virtue of a written agreement entered into by them, and also for an accounting 'and settlement of the partnership affairs.

<p> Bill in Equity to enforce Material-man’s Lien. </p> <p>1. Mechanic’s and material-man’s lien; constitutionality of statute. The statute, approved January 30th, 1860 (Acts of 1859-60, p. 514), giving to mechanics and material-men a lien in certain counties, and which provides that if the claim for material or that of a sub-contractor is presented to the owner within thirty days after the completion of the building and suit is brought thereon within nine months, it is sufficient to give a lien for the entire claim, not exceeding the amount agreed to be paid for the construction and completion of the building, without requiring notice of the claim, in fact or constructively, to be given to the owner, and without regard to the amount due under the contract, is unconstitutional and void. • .</p>

Tried before the Hon. H. A. Sharpe. This was an action brought by the appellant, R. M. Troy, against the appellees, W. H. Rogers, and the sureties on the forthcoming bond executed by him, to recover damages for the breach of said bond.

Tried before the Hon. John B. Tyson. This was an action of trespass brought by the appellee, H. A; Petty, against the Eufaula Grocery Company, and the sureties on its indemnity bond given on the suing out of an attachment, to recover damages for the wrongful levy of the attachment upon the goods. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. Joi-in A. Disque. . This was an action brought by the appellee, Johnnie Carlton Drake, against the appellant, John A. Tallman, as probate judge, and the sureties on his official bond, to recover damages for the breach of said bond. The facts of the case are sufficiently stated in the opinion. The cause was tried by the court without the intervention of- a jury, and upon the hearing of all the evidence, the court rendered judgment for the plaintiff.

Heard before the Hon. A. D. Sayre. The bill in this case was filed by the appellees, Theodore Bethea and Mamie Bethea, who alleged that T. B. Bethea, their grandfather, died testate in 1879, possessed of a large estate; that his will was duly probated, and that in the second paragraph thereof was the following bequest: “I give, devise and bequeath to my wife, Eugenia V. Bethea, my house and lot in the city of Montgomery, on the corner of Perry and Grove streets, where I now…

Heard before the Hon. A. D. Sayre. The bill in this case was filed by the appellants against the appellees, under the statute approved December 10, 1892. — Acts of 1892-93, p. 42. The facts of the case are sufficiently stated in the opinion. The appeal is from a decree of the chancellor granting a motion of the defendants to dismiss the bill for the want of equity; and the rendition of this decree is assigned as error. cited Cheney v. Nathan, 110 Ala. 254; Bogertv.

Heard before the Hon. J. R. Dowdell. This suit was instituted by a bill filed. by Ab. Little-john against James H. Vice, for the purpose of enforcing a vendor’s lien on certain lands described in the bill. Vice answered the bill, and asked that his answer be taken as a cross-bill, and prayed for the rescission of the contract of purchase.

Heard before the Hon. James R. Dowdell. The bill in this case was filed by the appellee, Rudolph Ehrman, against the appellants, William H. Merritt and M. J. Bond, and it was averred in the bill that in February, 1896, there was being operated in Chilton county, Alabama, a saw mill by the Merritt & Bond Lumber Company, a corporation chartered under the laws of the State of Alabama ; that the capital stock of said corporation was $12,000, divided into 120 shares of the value…

Tried before the Hon. James A. Bilbro. This was a statutory action of ejectment, brought by the appellant, A. L. Campbell, against the appellee, R. W. Smith, to recover certain specifically described lands. The trial was had upon the plea of the general issue.

Tried before the Hon. H. A. Sharpe. This was an action brought by the appellant, Johnson Jefferson, by his next friend, against the appellee ; to recover damages for personal injuries.

Tried before the Hon. James J. Banks. This was an action brought by the appellant. W. P. Shahan, against the Alabama Great Southern Railroad Company. The complaint contained two counts, the substance of which is sufficiently stated in the opinion.

Tried before the Hon. J. M. Carmichael. This was a statutory proceeding instituted by the appellant, E. M. C. Dowling, against the appellee, A. P. White, to compel the latter to deliver to the former the books, papers, property, money, &c., belonging to the office of the sheriff of Dale county; and was instituted on September 1st, 1896.

Tried before the Hon. H. C. Speake. The-facts, of the case of Rudder v. Koopman & Gerdes, are stated in the report of- the case which follows, this case. The following statement is in the case of 'Kinney v. Koopman & Gerdes.

Tried before the Hon. H. C. Spbake. The appellant, Josephine Rudder, brought the present action on March 15, 1894, against the appellants, Mary A. Koopman and John Gerdes, partners in business under the firm name of Koopman & Gerdes, to recover damages.

. Tried before the Hon. James J. Banks. The appellee, John Roach, brought this action against the appellant, the Alabama Great Southern Railroad Company, to recover damages for injuries received by the jdaintiff while in the employ of the defendant .as a car-inspector in the yards of the defendant.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed by the appellant, Alexander W. Jones, against the appellees, who were the executors of the will of H., M. Caldwell, deceased, and three other named persons defendant. The facts of the case are sufficiently stated in the opinion. From a decree sustaining the demurrers interposed by certain named defendants, the present appeal is prosecuted, and this decree is assigned as error.

Tried before the Hon. S. H. Spkott. This is a suit in detinue for 1,000 pounds of lint cotton, brought by appellee, T. L. Holman against the appellant, I. M. Hamner, in the justice court of one W. W. Elrod.

Tried bbfore the Hon. W. H. Simpson. The bill in this case was filed by the appellant against the appellee, to enforce a vendor’s lien upon certain lands described in the bill. The facts of the case are sufficiently stated in the opinion. 1. The defendant Williams was not entitled to the protection of a bona fide purchaser for value without notice.— Webb v. Elyton Land Co., 105 Ala. 472 ; Hooper v. Strahan, 71 Ala. 75 ; Craft v. Russell, 67 Ala. 9. 2.

Tried before the Hon. James W. Lapsley. This was an action, for money had and received, brought by the appellee, Mrs. S. C. Howell, against the appellant, the Alabama National Bank ; and sought to recover money which had been deposited in the defendant’s bank. The facts of the case, necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion.

Tried before the Hon. George E. Brewer. This is an action against the county for damages impersonal injuries, and injuries to property of plaintiff, alleged to have been caused by the falling in of a defective bridge on a public road ; and was begun on the 16th day of February, 1895.

Tried before the Hon. James J. Banks. This suit was brought by the appellant, W. D. Richardson, against the appellee, the Birmingham Cotton Manufacturing Company, to recover damages for injury to the plaintiff’s daughter, about ten years of age, in the loss of the forefinger of her right hand, which injury it is alleged was caused by the negligence of the defendant or its employes, while the plaintiff’s daughter was in the employment of the defendant.

Heard before the Hon. William H. Tayloe. The facts of the case are sufficiently stated in the opinion . The appeal is taken from a decree of the chancellor overruling the defendant’s motion to dissolve the injunction, to dismiss the bill for the want of equity, and the demurrers to the bill, upon the ground that it contained no equity; and the rendition of this decreé is assigned' as error. 1.

Tried before the Hon. H. A. Sharpe. This was an action to recover damages for personal injuries, brought by the appellee, Joe Hubbard, against the appellant, the Southern Railway Company. The appeal is from a judgment in favor of the plaintiff. The facts pertaining to the only question reviewed on the present appeal, are sufficiently set forth in the opinion.

Heard before the Hon..W. H. Simpson. The bill in this case was filed on the 25th day of September, 1896, by the appellant, James A. McMinn, and seeks to enjoin the respondent, Mary B. Karter, from cutting openings or apertures in a party wall; the respondent desiring to erect a frame building on the lot adjoining the building of complainant, and to join her building to the party wall by cutting apertures in the same for joists and sleepers, all along the full length of the…

Tried before the Hon. James J. Banks. This was an action brought by the appellants against the appellees. The cause was tried by the court without the intervention of a jury, and upon the hearing of all the evidence, the court rendered judgment for the defendant.

Tried before the Hon. J. A. Bilbro. This was a statutory action of ejectment, brought by tlie appellee, Nellie Moore, against the appellant, Henry Stephens, to recover a certain 40-acre tract of land, specifically described in the complaint, and was instituted on August 26, 1895. Both the plaintiff and the defendant claimed to have derived title to the property in controversy from the same source.

Heard before the Hon. James W. Lapsley. The facts of the case are sufficiently stated in the opinion. The answer is broad in general denials, and brings in much new matter, which can not be considered on motion to dissolve on the denials of the answer. — Farris v. Houston, 78 Ala. 250; Birmingham Mineral Railroad v. Bessemer, 98 Ala. 276.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed on August 21, 1895, by the appellant, Elizabeth Farmer, against the appellee, the American Mortgage Company of Scotland, Limited, and one D. C. Farmer, the husband of the complainant; and sought to have set aside and cancelled a mortgage which was executed by D. C. Farmer to the American Mortgage Company, conveying certain lands which were described in the mortgage as follows : “The west half of the…

Tried before the Hon. John B. Tally. This was an action brought by the appellee, Barton B. Smith, against the appellants, the Union Stave Company, to recover an amount alleged to be due for timber sold by the plaintiff.

Tried before the Hou. John C. Andekson. This was a statutory trial of the right of property, which was instituted by the appellant, Adolph A. Davidson, interposing a claim to certain property which had been levied upon under an attachment issued in a suit by the appellees, B. Kahn & Co., against M. Michaelis. The facts of the case are sufficiently stated in the opinion.

Heard before the Hon. J. A. Bilbro. This was a statutory action of ejectment, brought by the appellee, W.R. Larkin, against the appellant, M. A. Buchanan. The land sued for was described in the complaint as follows : “Beginning at a stake the southeast corner of the north-east corner of section 5, in T. 4, R. 5 east, of the Huntsville meridian, and running said -section line to a stake, sugar tree.

Tried before the Hon. H. C. Speake. The appellant was tried and' convicted under the following indictment: “The grand jury of said county charge that before the finding of this indictment Dink Bailey, alias Charles Bailey, with intent to steal, broke into and entered a store-house of the Parker Coal Com-; pany, a corporation, in which goods, clothing or mérchandise, things of value, were kept for use, sale or deposit, and then and there feloniously took and carried away from…

Tried before the Hon. A. D. Sayre. The defendant was indicted, tried and convicted for the murder of Theus Judkins, was convicted of murder in the first degree, and sentenced to the penitentiary for life. There were several charges,given to the jury by the court, and several charges requested by the defendant to be given to the jury were refused. To each of these rulings the defendant separately excepted. It is not necessary on this appeal to set out these charges in detail.

Tried before the Hon. A. D. Sayre. The appellant was indicted and tried for the murder of one Silas Jones, was convicted of murder in the second degree, and sentenced to the penitentiary for twenty-five years. The facts of the case and the rulings upon the evidence are sufficiently shown in.the opinion. The court erred in not sustaining the motion in arrest of judgment. — Names v. State, 113 Ala. 674 ; Spicer v. State, ,69 Ala. 159 ; Sylvester v. State, 71 Ala. 17.

Tried before the Hon. O. J. Semmes. The appellant, Amanda Bryant, was tried and convicted under the following indictment: . “The grand jury of said county charge that before the finding of this indictment, Amanda Bryant feloniously took and carried away in the county of Baldwin, in the State of Alabama, a diamond ring of the value of seventy-five dollars, the personal property of Annie Cirlot, and brought said ring into the county of Mobile in the State of Alabama. “And the…

Tried before the Hon. O. J. Semmbs. The appellant was. indicted, tried and convicted for the offense of grand larceny.

Tried before the Hou. A-. D. Sayke. The indictment against the defendant in this case charged that she “Unlawfully and with malice aforethought killed Sallie Williams, against the peace and dignity of the State of Alabama.” The defendant was tried under this indictment,' convicted of murder in the second degree, and sentenced to the penitentiary for twenty-five years..

Tried before the Hon. Jesse M. Carmichael. • The appellant was indicted, tried and convicted for conspiracy to commit arson. The averments of the indictment are sufficiently stated in the opinion.

Clair. Tried before the Hon. George E. Brewer. The appellant was indicted and tried for the murder of one Powell Hancock, and was convicted of murder in the second degree. As stated in the opinion, the principal exceptions reserved were to the rulings of the court upon the evidence. Most of the facts pertaining to these rulings, which are reviewed on the present appeal,'are sufficiently stated in the opinion.

Tried before the Hon. A. D. Sayke. The appellant, Elijah Jones, was indicted, tried and convicted for the murder of Felix Jones, and sentenced to be hanged.

Appear from the Circuit Court of Walker. Tried before the Hon. James J. Banks. The indictment in this case charges the appellant, John Linnehan, with murder in the first degree. At a former term of the circuit court the defendant was convicted of murder in the second degree, and on appeal to this court from that judgment of conviction, the judgment was reversed.

Tried before the Hon. E. B. Wilkerson. The prosecution in this case was commenced by a complaint being made before a justice of the peace of Pike county, charging the appellant, Mary Reeyes, with living in adultery with one Henry Myhan.

Tried before the Hon. Samuel E. Greene. The appellant was tried and convicted under the following indictment: “The grand jury of said county charge that before the finding of this indictment, Edward Glenn, alias Ed Glenn, alias Obe Glenn, alias Ade Glenn, with intent to defraud, did falsely make or forge an instrument in writing, purporting to be the act of one Aus. Pea, in words and figures substantially as follows, to-wit: ‘Mr. Jones,’ meaning thereby Wm.

- Tried before the Hon. 0. J. Semmes . The appellant was indicted and tried for the- murder of one Frank Dantzler, was convicted of… Held: to commence on the first day of September, 1897, especially for the indictment and trial of the persons charged with the killing of Thomas Jones, Frank Dantzler and George Gastin, and any other persons charged with aggravated offenses.” Upon the trial of the cause, the defendant moved to quash the” indictment upon the ground that the…

Tried before the Hon. R. A. J. Cumbee. The appellant was tried and convicted for allowing his stock to fun at large in a prohibited district. Upon the cause being called for trial, the defendant filed a plea to the jurisdiction of the court, which was verified by his affidavit..

This was an original petition for a writ of mandamus addressed to this court. The facts of the case are sufficiently stated in the opinion. An appeal does not lie to the circuit court from 'an order of the probate court appointing special administrators ; and, therefore, the circuit judge or circuit court is wholly without jurisdiction to compel, by mandamus, the allowance of an appeal.

Heard before the Hon. Thomas Cobbs. The original bill in this case was filed by the appellee, J. W. Miller, against the appellants, C. 0. Truss and P. P. Clarkson, on April 1st, 1893. The averments of the original bill disclosed the following facts : Miller and Clarkson on the 3d day of December, 1886, purchased from one W. H. Williams, each purchasing an undivided oné-half interest, certain specifically described land.

Tried before the Hon. James A. Bilbr.0. This action was brought on October 13th, 1894, by the appellee, L. F. Burgess, as administrator of Ora Burgess, deceased, against the Alabama Great Southern Railroad Company. The complaint, as amended, contained five counts. The first count was withdrawn by plaintiff.

Tried before the Hon. J. M. Carmichael. This was a statutory action of ejectment, brought originally by the appellee, H. R. Jernigan, against the appellant, Luke Flowers, to recover the possession of certain lands specifically described in the complaint. The appellant,..A. J. Arnold, was, on his own motion, made a party defendant as the landlord of Luke Flowers.

Tried before the Hon. W. W. Wilkekson. The appellee, the First National Bank of Newport, Kentucky, brought this action against the First National Bank of Birmingham, Alabama, on August 11, 1892. The original complaint contained two counts. Subsequently the complaint was amended by adding a third count. The substance of the first and third counts are sufficiently stated in the opinion.

Tried before the Hon. A. T. Borders, Special Judge. This was an action brought by the appellees, W. and F. McRae, against the appellants, L. T. Lindsay and J. D. Lindsay, to recover damages for the alleged breach of a written agreement. The facts of the case and the rulings upon the evidence are sufficiently stated in the opinion..

Tried before the Hon. J. W. Foster. This was a statutory action of ejectment, brought by the appellee, J. E. Henderson, against S. P. Lee and J. B. Collier. On the trial of the cause, the defendant Lee moved the court to make his landlord, M. A. Collier, a party to the suit. Said motion was granted, and her attorneys accepted service of notice of the order of court making her a party on thaj; motion.

Tried before the Hon. Samuel H. Spkott.- •The proceedings in this case were commenced by a motion filed by the appellee for a summary judgment against the appellants as sureties on the official bond of J. M. Pumphrey, deceased, who was the former sheriff of Tuscaloosa county.

Tried before the Hon. Thomas R. Roulhac. ' This action was brought by the appellant, G. L. Watson, against Kirby & Sons, the appellees. The grounds of the action and the facts pertaining to the complaint and the amendments thereof are sufficiently stated in the opinion. The defendants pleaded the general issue and payment, and filed several special pleas.

<p> Proceedings in Probate Court for the Final Settlement of an Administration. </p> <p>1. Decree of probate court in settlement of an administration; when will not support an appeal. — Where a probate court has acquired jurisdiction of the final settlement of the administration of an estate, and upon its being made to appear that the administrator had filed a bill to remove the administration and settlement into the chancery court, a decree or order by the pz-obate court that further consideration of the cause will be suspended to await the action of the chancery court, is not such a final decree or order as will support an appeal.</p>

Heard before the Hon. Jebe N. Williams. • The bill in this case was filed by the appellants against the appellees.

Tried before the Hon. John R. Tyson. Appellee, Witherington, brought this action by summons and complaint in the circuit court of Conecuh county on a bond for costs executed by appellants, Frank J. Dean and his sureties, to make a contest of appellee Witherington’s election as clerk of the circuit court of Conecuh county, Alabama.

Tried before the Hon. H. 0. Speake. This action was brought by the appellee, Joseph H. Ewing, against the appellant, the Mayor and Aldermen of the city of Huntsville, to recover damages resulting from the cutting of a ditch along the land which was owned at the time of the suit by the plaintiff, and from the negligent failure of the defendant to keep said ditch in proper condition. The suit was commenced on June 22d, 1887.

Tried before the Hon. John H. Disque. This action was brought by the appellant against the appellee to recover damages for waste committed by the defendant who was the purchaser at an execution sale of certain lands. There is but one question presented on the present appeal, which arises from the rulings of the trial court upon the pleadings. This question is sufficiently stated in the opinion.

Tried before the Hon. James J. Banks. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. J. M. Carmichael. This action was brought by the appellant against the appellees. The facts of the case are sufficiently stated in the opinion. Upon the sustaining of the demurrers to the plaintiff’s replications to defendant’s several pleas, the plaintiff declined to plead further, and judgment was rendered for the defendant.

Heard before the Hon. William H. Tayloe. The bill in this case was filed by the appellees, Anna R. McGrath and Emma Gordon, against the appellants, Louis Stein, Fred Stein, Ella Davenport, and also against Elisha M. Fulton and Walter Woods.

Tried before the Hon. Daniel W. Speaks, Special Judge. This action was brought on March.8th, 1895, by the appellee, Matilda Malone, against the appellant, the Louisville & Nashville Railroad Company, to recover damages for the alleged negligent setting fire to and burning of her house and other property by the defendant.

Tried before the Hon: J. W. Foster. This action was brought by tire appellee, A. T. Mc-Kinna, against the appellant, C. A. O'Neal. The complaint contained two counts as originally filed.

<p>Appeal from the Circuit Court of Randolph.</p> <p>Tried before the Hon. E. M. Oliver, Special Judge.</p> <p>’ This was a statutory action of ejectment, brought by the appellee against the appellant.</p> <p>The complaint claimed “that part of section 'ten,township twenty, range ten, in Randolph county, Alabama, lying west of a fence built by J. B. Taylor, on or about March 20th, 1896,” etc.</p> <p>The defendant, by plea to the complaint, denied that-he was, or ever had been in the possession of any land whatsoever in said section 10, township 20, range 10, in said county, and disclaimed possession.</p> <p>The parties entered into an agreement for the trial of the cause, in which-they admitted, “That the only question of difference and dispute between the parties was as to the true location, as run and established by the surveyors who made the original United States government surveys, of the section line, running from the southwest corner of section 10, township 20, range 10, in Randolph county, north to the Tallapoosa river.”</p> <p>It was further admitted that one Leonidas Jones, as one of the county surveyors of Randolph county, made a survey of said section line, at the request of the defendant, in March, 1896, having for his guidance certified copies of the original field notes of the government survey, of the lands divided by the line in question ; and that O. S. Perryman, as one of the county surveyors of said county, at the request of the plaintiff, did, on the 2oth day of May, 1896, make a survey of said line ; that he had a certified copy of said field notes for his guidance in making his survey, and that the line he ran did not coincide with the line formerly run by said surveyor Jones. It was admitted “that both surveyors, in making their respective surveys of said line, began at the true point of location of the section corner, at the southeast corner of section 9, or southwest corner of section 10, township 20, range 10, in Randolph county, Ala., and hence, the only question of dispute was, as to the correctness of the running of said line ;” and it was further agreed that the defendant owned and had title to section 9, west of said true line, wherever it might be, and’ that plaintiff owned and had title to section 10, east of the true line, wherever it might be.</p> <p>The copy of the field notes used by each surveyor was introduced in evidence, as were the written surveys made by each. The original government survey purports, by the field notes, to have been run on a magnetic variation of 6 degrees east, Huntsville meridian. Jones, in his survey, states that he found the line “run on a magnetic variation of 2-¡- degrees east.” Perryman, in his testimony, states that he ran the line north to the bank of the Tallapoosa river, at a magnetic variation of 6 degrees east, the same variation as that indicated on the field notes by which the United States survey was made. The evidence tended to show that Perryman’s survey was made by and according to the monuments and landmarks as were indicated on the field notes by which the- original survey was made by the government. It also tended to show that Jones, in his survey, did not discover these natural landmarks, and he was guided more by courses and distances.</p> <p>It was further shown that one Joseph Curry, a county surveyor, ran this line in 1856, without the aid of field notes, but set the compass so as to make the line run to meet the line exactly opposite the same section line at the north bank of the Tallapoosa river, and that the line Cui’ry ran was the same as the one run by Perryman. The line run by Perryman was considerably west of the one run by Jones, and defendant built his fence on the line run by Jones and took possession of the land dying west of the fence.</p> <p>Plaintiff’s witnesses testified, that more than forty years ago, a fence had been, built along the Curry line, through the cleared land, (a part of the land between the owners on each side of the line having been cleared and a part being still in the woods), and had been used for a great part of the time since, by the owners of the land on each side of the line as the dividing line between said section ; that said line had been so recognized by them, and that plaintiff had been in possession of the land sued for 'before March, 1896, for about thirty years.</p> <p>To each of the questions calling for this testimony, the defendant separately objected, and upon the court’s overruling each of their objections, and allowing the questions to be answered, and the testimony to go to the jury, the defendant separately excepted to each of such rulings. These rulings, respectively, constitute the grounds for the 1st, 2d and 3d assignments of error.</p> <p>After the court had admitted such testimony, it instructed the jury that they could only look to it, if true, as a circumstance to be considered by them, together with all the other evidence in the cause in determining whether the true line had- been run by the ¡United States •surveyors.</p> <p>Upon the introduction of all the evidence the court in its oral charge instructed the jury that “the magnetic valuation of the needle from the true meridian had no .bearing or influence in the case.” To this part of the court’s oral charge the defendant separately excepted. The giving of this instruction constituted the .basis of 'the 4th assignment of error.</p> <p>The defendant also separately excepted to the court’s refusal to give each of the following charges requested by him : (1.) ‘ ‘If the jury believe the evidence, you will find for the defendant.” (2.) “The magnetic variation since the original Government survey of the line in question, has been and is now from an easterly to a westerly direction, and that if surveyor Perryman run the line .without regard to this variation, then you must find for the defendant.”</p> <p>There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved. _ • . '</p> <p>The evidence allowed to be introduced by the plaintiff as to the building of the fence along the line in question, and the possession by the plaintiff of the land inclosed by such fence, was hearsay, and, therefore, inadmissible. — 1 Greenl. .on Evidence, § 448 ; Payne v. Crawford, 102 Ala. 399. The court’s instruction to the jury that the magnetic variation of the needle from the true meridian had no bearing or influence in the case was erroneous, since it invaded the province of the. jury and ignored the evidence introduced in the case. — 11 Amer. & Eng. Encyc. of Law, note 2, p. 238; Nelson v. Shelby Manfg. Co., 96 Ala. 517.</p> <p>The United States statutes make the field notes the primary and best evidence of boundary. — Rev. Stat. U. S., § 2396. And in surveying by field notes, courses .and distances must be ascertained with reference to the magnetic meridian. — 2 Amer. & Eng. Encyc. of Law, 502, 508; Tiedeman on Real Property, §§ 831, 832, 839 ; Gillespie’s Land Surveying, p. 189; Bryan v. Becldey, 12 Amer. Dec. 276; Ho.ms Protec. of N. Ala. v. Whidden, 103 Ala. 204. Therefore the first charge requested by the defendant should have been given.</p> <p>3. The court takes judicial notice of the magnetic variation of the needle from the true meridian, and also of the surveys of the land of Alabama. — 12 Amer. & Eng. Encyc. of Law, 196 ; Knabe v. Burden, 88 Ala. 436.</p> <p>In this case, where the location of the line was in dispute, evidence for the plaintiff that she had been in possession of the land up to the Curry and Perryman line, was clearly admissible to aid the jury in determining where the true line ran. The court, in its charge limited the effect of the evidence to this ; besides the appellant did not ask any written charge limiting the effect of the evidence. — Boardman v. Reed, 6 Peters 341; Tiedeman on Real Property, 832 ; Budd v. Brooke, 43 Amer. Dec. 321; Heaton v. Hodges, 30 Amer. Dec. 731.</p>

Tried before the Hon. N. D. Denson. This .was an action brought by the appellee, Adam Glass, against the town of Brewton, and counted upon two interest coupons attached to a bond, which had been issued by the defendant. Issue was joined upon three pleas. The first was non est factum; and the other pleas were special pleas.

Tried before the Hon. James J. Banks. This action was brought by the appellant, by his next friend, against the appellees, to recover damages for personal injuries. This is the second appeal in this case, and special reference is here made to the report of the case in 104 Ala. 611, as to the material facts disclosed upon the trial, which were substantially the same upon the second trial, from which this appeal is taken.

Tried before the Hon. J. A. Bilbro. This action was brought by the appellee, Jasper Smith, against the appellant, Joseph H. Martin, and counted upon a promissory note. The defendant filed a sworn plea of non'est factum, and on this plea issue was joined and the trial was had.

Clair. Tried before the Hon. George E. Brewer. '.This was an action brought by a father for the negligent killing of a minor son about nine years of age. The complaint contains fourteen counts. Demurrers were sustained to the 2d, 3d, 4th and 5th counts. The 1st, 12th and 13 th counts alleged simple negligence The 6th, 7th, 8th, 9th, 10th, 11th and 14th counts alleged willful, wanton and intentional negligence.

Tried before the Hon. J. M. Carmichael. This was a statutory action of ejectment, brought by the appellant, Malcolm Johnson, against the appellee, Stephen J. Goff. The defendant suggested that Hattie Maughon was the owner of the premises sued for, and moved that she be made a party to the suit.

Heard before the Hon. J. M. Carmichael. The commissioners court of Coosa county, upon a petition by the appellant and other named citizens of said county, made and entered on the minutes of the .court an order or decree changing a public road. At a subsequent term, the court entered an order declaring the former decree void, and ex mero motto set aside said decree and ordered the road which was changed to be re-established.

Tried before the Hon. 0. Kyle, Special Judge. J. F. and G. W. Butler recovered, in April, 1896, a judgment against H. S. Freeman in the circuit court of Morgan county, for the sum of $664.45 and cost of suit, and after the adjournment of the term of the. court in which said judgment was recovered, execution was issued thereon, and went to the hands of the sheriff of Morgan county, and alias and plures executions were issued on said judgment and placed in the hands of the…

Tried before the Hon. S. H. Sprott. The facts of the case are sufficiently stated in the opinion. The provisions of the statute authorizing the issuance of writs of certiorari by probate judges have reference to statutory writs, and do not authorize the issuance of common law certiorari. — Code of 1886, § 795 ; 3 Amer. & Eng. Encyc. of Law, 60 ; 1 Brick. Dig. 833, § 12; 334, § 19 ; Ex parte Buckley, 53 Ala. 49. cited Independent Pub. Co. v. Amer.

' Tried before the Hon. W. W. Wilkerson. The facts of the case are sufficiently stated in the opinion. The implied contract upon which the plaintiff seeks to recover, was forbidden by statute; and it was, therefore, void and unenforceable. — 3 Amer. & Eng Encyc. of Law, p. 872 ; Woods v. Armstrong, 54 Ala. 150 ; Gunter v. Leeky, 30 Ala. 591; McGehee v. Lindsay, 6 Ala. 16; Black v. Oliver, 1 Ala. 449; Walker v. Gregory, 36 Ala. 180 ; 24 Am. & Eng. Encyc. of Law, §§ 558, 560.

Tried before the Hon. J. W. Foster. This action was brought by the appellee, F. M. McAuthor, against the appellant, the Phoenix Assurance Company of London; and counted in the Code form upon a policy of fire insurance, which was alleged to have been issued by the defendant upon the plaintiff’s dwelling house.

<p>Appeal from Jefferson Circuit Court..</p> <p>Tried before the Hon. James J. Banks.</p>

<p>Appeal from Montgomery City Court. • ■</p> <p>Tried before the Hon. A. D. Sayre.</p>

<p>’ Appeal from Tuscaloosa Law and Equity Court.</p> <p>Tried before the Hon.'I. J. Mayfield.</p>

<p>Appeal from Montgomery City Court.</p> <p>Tried before the Hon. A. D. Sayre.</p>

<p>Appeal from Covington Circuit Court.</p> <p>Tried before the Hon. J. W. Foster.</p>

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

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

<p>Appeal from Montgomery City Court.</p> <p>Tried before the Hon. A. D. Sayre.</p>

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

<p>Appeal from Jackson Circuit Court.</p> <p>Tried before the Hon. William L. Stephens, Special Judge.</p>