Volume 117 — Alabama Reports

Tried before the Hon. J. W. Foster. The substance of the indictment, under' which the defendant in this case was convicted for murder in the second degree and sentenced to the penitentiary for ten years, is sufficiently stated in the .opinion.

.Tried before the Hon: John H. Disque. The appellant was indicted and tried for the murder of Tom Hale, was convicted of murder in the second degree, and sentenced to the penitentiary for 15 years.

Tried before the Hon. H. C. Speake. The appellant, Albert Titus, was indicted, tried and convicted of murder in the second degree, and sentenced to the penitentiary for fifteen years. ■ The testimony for the State tended to show that on the night of the killing, there was a dance going on at a house near the scene of the killing; that the defendant came to the house and asked to see one Willie Faunfield, a woman in the house, remarking that he wanted his knife and his…

Tried-before the Hon. John Moo:re. The appellant was tried and convicted under the following indictment: “The grand jury of said county charge that before the finding of this indictment, Mose Rodgers, alias Moses Rodgers, Page Granison and Tom Grimes, alias Thomas Grimes, did willfully set fire to or burn the store of Henry Gray, which, with the property therein contained at the time,' was of the value of' five hundred dollars,” Tliere was a severance as to the appellant,…

Clair. Tried before the Hon. George E. Brewer. The appellant was indicted and tried for the murder of one Thomas McKinley, was convicted of manslaughter in .the first degree, and sentenced to the penitentiary for ten .-years. The facts pertaining to the rulings of the court as to setting--a day for the-trial, and as to the verdict, judgment and sentence rendered thereon, are sufficiently stated in the opinion.

Tried before the Hon. O. J. Semmes. The defendant was indicted and tried for murder, and was convicted of manslaughter in the first degree.

Tried before the Hon. J. A. Bilbro. The appellant, John Nicholson, was indicted and tried for murder in the second degree in killing Clarence McConnell, by shooting him with a gun, was convicted of manslaughter in the first degree, and sentenced to the penitentiary for two years.

Tried before the Hon. D. C. Blackwell, Special J udge. The appellant, L. J. Fuller, was indicted and tried for murder, was convicted of murder in the second degree,. and sentenced to the penitentiary for 30 years.

Tried before the Hon. H. C. Speake. The indictment under which the appellant was tried and convicted was as follows : (1.) “The grand jury of said county charge that before the finding of this indictment, Robert M. Walker, alias Bob Walker, who was at the time the agent of The Singer Manufacturing Company, an incorporated company, incorporated under the laws of the State of New Jersey, embezzled or fraudulently converted to his own use, money to about the amount of two…

Tried before the Hon. J. A. Bilbro. The appellant, Lucian Compton, and Brash Snead were jointly indicted for the murder of one Chap Browning, by shooting him with a pistol. There was a severance, and on the trial of the appellant, Lucian Compton, at the Spring Term, 1896, of the circuit court of Marshall county, he was convicted of murder in the second degree and sentenced to the penitentiary for seventeen years.

Tried before tlie Hon. N. D. Denson. The appellant was indicted, tried and convicted for arson, and sentenced to the penitentiary for four years. The indictment contained two counts. The first count charged the- defendant with willfully setting fire to and burning a warehouse, the property of the South & North Alabama Railroad Company, a corporation under the laws of the State of Alabama; the warehouse, with the property therein contained, being of the value of $1,500.

Tried before the Hon. James J. Banks. The appellant in this case, a negro, was indicted for the rape of Nellie Lawton, a white girl about twelve and a half years of age. He was arrested on the 8th day of June, 1897, and a special term of court was called for his trial, and convened on July 26th, 1897.

Tried before the Hon. Thos. R. Roulhac. The appellant in this case, Nancy Orr, was indicted, tried and convicted- for the murder of one J;m Fenn.

Tried before the Hon. W. R. DéLoach. The indictment under which the appellant, Ed Cross, was tried and convicted, contained two counts ; the first count charging the larceny of cotton seed of the value of ten dollars, and the second count charging him with buying, receiving or concealing cotton seed of the value of ten dollars, knowing it to be stolen.

Tried befoi'e the Hon. James J. Mayeield. The appellant was tried and convicted under an indictment, the first count of which charged burglary from a storehouse, and the second count charged him with grand larceny for stealing personal property from a storehouse. The facts of the case are sufficiently stated in the opinion. Among the charges requested by the defendant, and to the refusal to give which the defendant separately excepted, was the following : “6.

Tried, before the Hon. James J. Bank's. The appellant, Evans Bynon, was tried and convicted for bigamy. The material facts of the case and the rulings of the court reviewed on the present appeal áre sufficiently stated in the opinion.

Tried before the Hon. O. J. Semmes. The appellants were tried and convicted under the following indictment: “The grand jury of said county charge that before the finding of this indictment Henry Thomas, alias Henry Thomason and Gertrude Tolliver, feloniously took one ten dollar bill, one two dollar bill, and a one dollar bill, all of said bills being paper money of the currency of the United States of America, the property of Frank Milner, from his person and against his…

Tried before the Hon. A. D. Sayre. The appellant was indicted, tried and convicted for the larceny of a hog. The bill of exceptions recites that upon the cause being called for trial “the State having announced ready for trial, the defendant stated that he was not ready, as seven of his witnesses were absent. Thereupon the court asked when the witnesses were summoned.

Tried before the Hon. D. R. McMillan. The prosecution in this case, was commenced by an affidavit made before a justice of the peace of Shelby county, which was as follows: “Before me, C. B. West, a justice of the peace for said State and county, personally appeared George ' Brazier, who being duly sworn deposes and says that he has probable cause for believing and does believe that the offense of trespass after warning has been committed in said county and that Milo…

Tried before the Hon. John W. Bishop. The appellants, Will McAlpine, a negro man, and Lizzie White, a white woman, were indicted, tried and convicted of miscegenation, in living in adultery with each other.

<p> Indictment for Bigamy. </p> <p>1. Bigamy, constituents of statutory offense of continuing to cohabit after bigamous marriage. — While sexual intercourse is a necessary ingredient of the statutory offense of continuing cohabitation under a bigamous marriage (Or. Code of 1886, § 4016 ; Or. Code of 1896, § 4406), continual sexual intercourse during the whole time the parties live together is not an indispensable element of the offense; but the crime is committed when the parties to a bigamous marriage, after sexual intercourse, live together as man and wife, under the same roof, acknowledge each other as husband and wife, and in all respects so conduct themselves in the presence of the community, although for years they were prevented, by reason of incapacity, from indulging in the. carnal act.</p>

Tried before the Hon. George E. Brewer. The indictment under which the appellant, W. H. Waters was tried and convicted, contained two counts. The first count charged the defendant with the larceny of a cow, the property of J. F. Dearman. The second count, charged the larceny “of a heifer yearling, an animal of the cow kind, the property of J. F. Dearman.” It was shown that the animal the defendant was charged with having stolen belonged to J. F. Dearman.

<p> Indictment for Grand Larceny. </p> <p>1. Evidence; statements made in the absence of defendant hearsay and inadmissible. — The testimony of witnesses as to what another witness told them, in defendant’s absence, that defendant said to him, is merely hearsay and inadmissible on the question of the defendant’s guilt; and such testimony cannot be introduced for the purpose of impeaching the credibility of the witness, after he had denied making such statement as testified to by said witnesses, except by first laying a proper predicate.</p> <p>2. Same; admissibility of admissions and confessions ; presumption on appeal.- — -While, to authorize the admission of declarations and confessions as evidence against the party on trial under a criminal charge, it is the duty of the court to ascertain that they were freely and voluntarily made, still, on appeal, it will be presumed that the trial court properly performed this duty before such confessions and declarations were admitted in evidence, unless the record affirmatively shows that the court did not do so and erred in its action.</p>

Tried before the Pión. J. W. Foster. The appellant was tried and convicted under the following indictment: “The grand jury of said county charge that before the finding of this indictment John B. Meek did falsely pretend to John S'. Collins, a member of the firm of Malone, Collins & Company, a firm doing business in the town of Geneva, Ala., and composed of Geo. Y. Malone, Nace Collins, Geo.

Tried before the Hon. J-.- W. Foster. The appellant was tried and convicted under the following indictment: “The grand jury of said county charge that before the finding of this indictment-Webb Ohurchwell feloniously took and carried away from the dwelling house of Sophia Terry, one trunk of the value of two dollars, the personal property of Sophia Terry, against the peace and dignity of the State of Alabama.” To this indictment the defendant demurred, upon the ground that…

Tried before the Hon. James T. Beck. The prosecution in this case was commenced by the making of a complaint before, and the issuance of a warrant by, a justice of the peace against the appellant, Alexander McIntosh, charging that with the intent to injure or defraud his employer, he entered into a contract in writing, for the performance of services, and thereby obtained twenty dollars from such employer, and with like intent and without just cause, and without refunding…

Tried before tlie Hon. James T. Beck. Tlie appellant was indicted for an assault and battery upon one John Cook with a knife. The indictment charged “John Rufus” with the offense.

<p>Appeal from the Circuit Court of Conecuh.</p> <p>Tried before the Hon. John R. Tyson.</p> <p>The facts of the case are sufficiently stated in the opinion.</p> <p>cited Morgan v. State, 81 Ala. 72 ; Gampbdl v. State, 79 Ala. 271; Pilgreen v.-.State, 71 Ala. 368; Young v. State, 58 Ala. 358.</p>

Tried before the Hon. E. B. Wilicekson. This was a prosecution under section 3832 of 'the Criminal Code of 1886, for the failure of the appellant, Mose Salter, to perform a contract with his sureties who confessed judgment for the defendant for fine and costs in a certain case in which the defendant was' convicted of a misdemeanor. The prosecution was commenced by a complaint which was made before the judge of the Criminal Court.

Tried before the Hon. N. H. Thompson. The appellant was tried and convicted for an assault with a weapon. The evidence for the State tended to show that the defendant assaulted one West Morris with a knife. The evidence for the defendant tended to show that it was some other person than the defendant who had the knife, and that the defendant did not strike at West Morris with a knife, or otherwise.

George E. Brewer. The appellant was indicted, tried and convicted for selling spiritous, vinous and malt liquors without a license, and contrary to law.

<p> Indictment for using Abusive or Insulting Language. </p> <p>1. Using abusive or insulting language before the family of another; sufficiency of evidence. — In a prosecution for going sufficiently near the dwelling house of another person and using abusive and insulting language in the presence or hearing of the family of the occupant thereof, it is not necessary, to authorize a conviction, that the entire family should be present or within hearing when the language was used; but if used in the presence or hearing of two or more members of the family, there is a violation of the statute (Or. Code of 1886, § 4031; Or. Code of 1896, § 4306), and a conviction should be had.</p>

Tried before the Horn W. H. Hurt. The facts of this case are sufficiently showm in the opinion.

Heard before the Hon. J. A. Bilbro. This is a proceeding by information in the nature of a quo ivarranto, instituted by the State of Alabama on the relation of Pink M. Harris, to oust the appellee, James M. Elliott, Jr., from the office of mayor of the city of Gadsden.

Tried before the Hon. E. B. Wilkerson. The appellant, Phil Jackson, was prosecuted for betting at a game played with cards at a public house, or some other public place, or at an out-house where .people resort, and was convicted. The prosecution was commenced by an affidavit made before the judge of the Pike county criminal court.

<p>Appeal from the Criminal Court of Pike.</p> <p>Tried before the Hon. E. B. Wilkekson.</p> <p>The facts of the case are sufficiently stated in the opinion.</p>

Tried before the Hon. E. H. Foster, Special Judge. The appellant was indicted, tried and convicted for shooting a gun along or across a public road. When the cause was called for trial, John H. Sheffey, Esq., was on the bench presiding instead of the regular Judge, Hon. H. C. Speake, who was unable to preside by reason of sickness.

Tried before the Hon. John Moore. ■The appellant in this case was tried and convicted under the following indictment: ‘-‘The grand jury of said county charge that before the finding of this indictment, Reuben Agee did, with the intent to injure or defraud, falsely make, alter, forge or counterfeit an instrument in writing, in words and figures substantially as follows, to-wit: ‘Oct. 18, 1895. Lamison ala. Mr. J-. T. Dumas.

Heard before the jHon- John H. Risque. This is &'quo w'arriWM'proceeding, at the suit of the State on the relation of the Attorney-General against the ■appellee, James M. Elliott, Jr., .having for its'purpose the ousting of said Elliott from the. office of Mayor oí the city of Gadsden.

Tried before the Hon. James W. Lapsley. This is an action by the State, originally brought in a justice court, to recover $25, as a license for selling… Held: even a liquor license authorized the licensee to sell in two separate stores or rooms, when thére was “unity of management, ownership and locality.” — Hochstadler v. State, 73 Ala. 24. So, in this case there was unity of management, ownership and locality, and only one license could be required. — 11 Amer. &. Eng.

Tried before the Hon. S. W. Tate . The appellant was indicted, tried and convicted for unlawfully and wantonly killing a hog. The facts of the case are'sufficiently stated in the opinion.

Tried before the Hon. John R. Tyson. The appellant was indicted, tried and convicted for an assault and battery upon one Henry Hunter.

Tried before the Hon. J. W. Foster. The appellant was indicted, tried and conyicted for the seduction of Augusta Pagett, and was sentenced to the penitentiary for two years. There were two indictments preferred against the defendant in this case. The first was preferred at the spring term, 1895, of the circuit court of Covington county, and was destroyed by fire. At the fall term, 1895, another indictment was preferred, and it was upon this indictment that the trial »was had.

Tried before the Hon. Thomas R. Roulhac. This is a bastardy proceeding, which was commenced by affidavit being made by one Rutha Pearsall before one James P. Murdock, who was a notary public and ex officio justice of the peace for Colbert county. Upon this affidavit a warrant of arrest was issued; and upon the hearing, the justice of the peace considered that there was probable cause to believe the defendant guilty, and, therefore, bound him over to the circuit court.

Tried before the Hon. J. W. Foster. The prosecution in this case was commenced before a justice of the peace of Henry county, and charged that “Bob Waters, after having been duly summoned to appear and work the Columbia and Rocky Creek Road, beginning at the forks of Rocky Creek and Dothan Road and running to the six mile post toward Ashford, Ala., failed to appear and work said road against the peace and dignity of the State of Alabama.” A warrant was issued upon this…

Tried before the Hon. John H. Disque. The appellant was indicted, tried and convicted for . an assault. The averments of the two counts of the indictment are sufficiently stated in the opinion. The defendant demurred to the second count, upon the ground that it was “vague, indefinite and uncertain as to the character of the weapon used.” This demurrer was .overruled, and the defendant duly excepted.

Tried before the Hon. J. A. Bilbb.0. On July 20, 1897, appellant, a resident citizen of Marshall county, made return to the tax assessor of said county of a list of all his property subject to taxation for the year 1897. Among the items of property thus returned was a wagon. Upon this return, the assessor entered upon his book of assessments, *an assessment against appellant of his taxes for said year.

<p>Appeal from the Circuit Court of Bullock.</p> <p>Tried before the Hon. J. M. Carmichael.</p> <p>The facts of the case are sufficiently stated in the opinion.</p>

Heard before the Hon. E. B. Wilkerson. The prosecution in this case was commenced by the following affidavit made before a notary public and ex officio justice of the peace: “The State of Alabama, Pike County. — Personally appeared before me, B. W. Starke, N. P. and Ex. Off.

Tried before the Hon. J. A. Bilbro. The indictment under which the appellees in this case were indicted, tried and convicted, was as follows : “The grand jury of said county charge that before the finding of this indictment, Westly Hughes and Tuttle Thompson, two of the members of the- court of county commissioners for Marshall county, Alabama, and Thomas A. Street, probate judge and clerk of the court of county commissioners for Marshall county, constituting a majority of…

Tried before the Hon. James T. Beck. The facts of this case, showing the rulings of the trial court which are presented for review on the present appeal, are sufficiently stated in the opinion. cited Nixon v. State, 68 Ala. 535 ; Steele v. State, 111 Ala. 32; Wilkins v. State, 112 Ala. 60; Cochran v. State, 89 Ala. 40.

Tried before the Hon. William S. Anderson. The appellant, Martin H. Sullivan, owned certain lands in Baldwin county, Alabama, which were assessed by him for taxes at the valuation of $1 per acre,, amounting'to $14,113.

Tried before the Hon. J. W. Foster. The appellant was tried and'convicted under the following indictment: “.The grand jury of said county charge that before* the finding of this indictment Newton Alexander did obstruct a certain public road known as the Columbia and Franklin Road in said county, by filling up the ditches on said road without leave of Court of County Commissioners first had and obtained, against the peace and dignity of the State of Alabama.” To this…

The facts of the case are sufficiently stated in the opinion. The chancery court had no power or jurisdiction to appoint and qualify an administrator de bonis non. This right was exclusively in the probate court. It was so intended under the provisions of the-Code. — Constitution, Art. VI, §9; Ilcelheimer v. Chapman, 32 Ala. 680 ; Malone & Foote v. Hill, 68 Ala. 228 ; Ex parte Smith, 23 Ala. 94; Ex parte Lyon, 60 Ala. 654; Ex parte Boothe, 64 Ala. 318.

Heard before the Hon. A. D. Sayre. The proceedings in this case were had on an application by J. M. Thompson, as clerk of the circuit court of Jackson county, for a writ of mandamus to compel S. B. Trapp, as President of .the Board of Inspectors of Convicts, to perform the duty required of him by section 3 of the act approved February 18, 1897, providing for the payment out of the convict fund of costs in penitentiaiy eases.

Tried before the Hon.’ E. B. Wilkbrson. The facts of the case are sufficiently stated in the opinion.

Heard before the Hon. John G. Winter. The facts of the case are sufficiently stated in the opinion. The- act of 1890-91, page 1139, does devolve upon the Auditor a duty as to which judgment and discretion is to be exercised by that officer. The writ of mandamus can be awarded against a public official.only where the •act required to be done is merely ministerial in its nature. — United States v. Seaman, 17 How.. 225; Ex parte Thompson, 52 Ala. 100.

This was an application for mandamus, filed originally in this court. The facts of the case are sufficiently stated in the opinion. cited Jaclcson v. Edwards, 1 Cowen 138 ; Henderson¿ v. Griffin, 5 Peters 151; Tyler on Ejectment, 586 ; 5 Encyc. of Pleading & Practice, 261.

Tried before the Hon. John R. Tyson. This was a statutory action of ejectment, brought by the appellee against the appellant. The plaintiff claimed title under a general assignment for the benefit of creditors. The only question presented for review on the present appeal arises upon the admission in evidence of the deed of general assignment executed by Moses Brothers to H. A. Sayre, S. M.. Levin and R. B. Snodgrass.

Tried before the Hon. J. W. Foster. The proceedings in this case were had upon a contest of homestead exemption, which arose in the following manner : On March 7, 1895, Anna J. Dowling, as administratrix of the estate of John W. Dowling, deceased,, recovered judgment in the circuit court of Dale county, against the appellee, Joel R. Horne.

Tried before the Hon. W. W. Callahan, Special Judge. This was an action brought by the appellee against the appellant, and counted upon a promissory note. The cause was originally commenced in a court of a justice of the peace. Upon the recovery of judgment therein by the plaintiff, the case was removed to the city court by certiorari, and from there was transferred to the circuit court. The facts in reference to such transfer are stated in the opinion.

Tried before the Hon. S. H. Sprott. This was a common law action of ejectment, which was brought by the appellee against the appellant. There were three demises laid in the complaint. One rested upon a patent granted by the Government to the University of Alabama; another upon a deed from the DeBardelaben Coal & Iron Co.; and the third, was a deed from the DeBardelaben Coal & Iron Company to the plaintiff.

Tried before the Hon. C. K. Abrahams, Special J udge. This was a statutory action of ejectment, brought by the appellees, Mayer Brothers, against the appellant, M. M. Williamson, to recover possession of a tract of land, which was described in the complaint as follows : “The N. W.-J of section 22, township 14, range 3 east, in Marengo county, Alabama;” and was commenced on February 17, 1896, In organizing the jury for the trial, G. W. Westbrook, one of the jurors, upon Ms…

Tried before the Hon. J. M. Carmichael. This was a statutory' action of detinue, brought by the appellants, Tillis & O’Neal, against the. appellee, A. W. Austin, to recover certain personal property specifically described in the complaint.

Tried before the Hon. James J. Banks. This was a statutory action of ejectment, brought by the appellant, William Banks, against the appellee, John Speers,, as administrator de bonis non of the estate of'M. D. Burchfield, and sought to recover the possession of certain lands in the town of Jasper. The defendant filed a special plea, in which he sets up that he was not in possession of the lots sued for in whole or in part at the commencement of the suit.

Tried before the Hon. William H. Tayloe. This bill was filed June 29, 1896, to foreclose a mortgage executed by the defendant on April 4, 1893.

Heard before the Hon. Samuel H. Spkott. This was a suit brought by the appellee against the appellant. The facts of the case are sufficiently stated in the opinion. The defendant moved the court to require the plaintiff to pay or secure the costs of the former suit before proceeding to trial in this suit. This motion was overruled, and the defendant duly excepted. The defendant also pleaded res adjudicata, in which he set' out the facts which are stated in the opinion.

Tried before the Hon. W. W. Wilkerson. This was a suit brought by the appellee, Alexander W. Thornton, against the Louisville & Nashville Railroad Company, to recover damages for personal injuries received by the plaintiff while in the service of the defendant as a switchman in its yards at Birmingham ; both of the plaintiff’s legs being cut off.

Tried before the Hon. J. W. Foster. This was a statutory trial of the . right of property. The appellees brought an action of detinue against one E. Crine, for the recovery of certain specified articles of merchandise, and upon the seizure by the sheriff under a writ of detinue, appellant, 0. Willc, interposed a claim to said property, making affidavit and bond as required by the statute. On the trial of the cause, there were verdict and judgment for the plaintiff.

Tried before the Hon. J. A. Bilbro. The appellant, J. T. Chadwick, brought this action against the appellee, W. W. Russell, to recover damages for the wrongful taking and conversion of certain specifically described personal property. In the complaint there was a count for trespass and one for trover. Issue joined was upon the plea of the general issue.

Tried before the Hon. James J. Banks. E. K-. Campbell, for appellant. — 1. The special plea did not apply to the complaint as amended, and the general issue only applied to the third count. — L. & N. R. R. Co. v. Woods, 105 Ala. 561; Steed v. Knowles, 97 Ala. 577; Odum v. Rutledge, 94 Ala. 489; Gadsden Land & Imp. Co. v. First Nat. B’k., 96 Ala. 618. 2. The defendant could not get advantage of facts not pleaded when a special plea was necessary. 1 Chit, on Plead.

Heard before the Hon. W. H. Simpson. The facts of this case.are sufficiently stated in the opinion. Upon the rendition of the final decree, the Chattanooga Foundry and Pipe Works sued out an appeal, and assigned as error, among other rulings of the chancellor, the final decree in which he declares the complainants to have a lien on the lands purchased by it for the amount of the note, which was given by the improvement company.

Tried before the Hon. John Gf. Winter, Special Judge. The tax assessor of Montgomery county made an assessment against the appellant, the Capital City Water Company, on account of its gross income during the year of 1890, which said income amounted to the sum of $22,-295.22, at which amount the assessment was fixed.

Tried before the Hon. H. C.' Speake . This action was brought by the appellees against the appellants, to recover the price of certain hams sold to the defendants on July 31st, 1889.

Heard before the Hon. S. T. Frazer. The proceedings in this case arose upon the contest of the will of J. D. Conyers, deceased, which was filed for pi’obate by the appellee, S. P. Rainer, who was named as executor of said will. The appellant, Mrs. M. F. Thompson, alleging that she was the sister of the deceased, filed her contest to the probate of the will, assigning many grounds therefor.

Heard before the Hon. W. W. Wilkekson. The bill in this case was filed by the appellee against the appellant. The averments of the bill are sufficiently stated in the opinion. The defendant demurred to the bill upon the following grounds: “1. That the complainant shows no right to exhibit said bill in its own name. 2. That the bill shows that complainant has a full, complete and adequate remedy at law. 3.

Tried before the Hon. J. M. Carmichael. This action was brought by the appellees against the appellants.

Heard before the Hon. John G. Winter. The facts of the case- are sufficiently stated in the opinion. The finding of the matter on facts should not be disturbed, unless based on illegal evidence, or erroneous conclusions of law, or unless it is manifest that he erred in weighing the testimony. Munden v. Bailey, 70 Ala. 63 ; Vaughan v. Smith, 69 Ala. 92 ; Qlover v. Hembree, 82 Ala. 324.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed for the establishment of a resulting trust in land. The original bill was filed by the appellee, A. M. Stovall, against Mary J. Stovall and the appellants. The appellants filéd their joint answer to the original bill, and also a cross-bill against the complainant in the original bill and Mary J. Stovall. The complainant demurred to the cross-bill, which demurrer was sustained.

Heard before the Hon. William H. Simpson. The bill in this case was filed by Jackson county, against the appellees, who were the administrator of one J. M. Dicus, deceased, and the sureties on the successive bonds of said J. M. Dicus, deceased, as treasurer of the county of Jackson.

Tried before the Hon. H. C. Speake. This action was brought by the appellee as administrator of Nancy Martin, deceased, against the appellant, the Memphis & Charleston Railroad Company, to recover damages for the alleged negligent killing by the defendant of the plaintiff’s intestate. The complaint as amended contained five counts.

Tried before the Hon. J. A. Bilbko. This was a statutory action of ejectment, brought by the appellee against the appellant-. The facts of the case are set forth at length in the opinion.

Chancery Court of Jefferson. Heard before the Hon. Thomas Cobbs. The facts of the case are sufficiently stated in the opinion In order for the complainant to be entitled to the relief it prays, it must show clearly that it is a railroad that comes within the class provided for in the deed. The word railroad, can have no precise definition — its meaning depends entirely upon the connection in which the word is used.

Tried before the Hon. H. C. Speake . This was an action brought by the appellee, Mariah Reynolds, against the appellants, McGhee & Fink, receivers of the Memphis & Charleston Railroad Company. The cause was tried at the regular term of the circuit court for Morgan county, on April 20, 1897. At the time of the trial 9f this cause Hon. H. C. Speake, who was the judge of that circuit, was present and presiding.

Tried before the Hon. Thomas Cobbs. The bill in this case was filed by the appellee against the appellants ; and sought to have a trust declared in certain tracts of land. The facts of the case, as averred in the bill, are sufficiently stated in the opinion. The defendant demurred to the bill upon the following grounds: 1.

Heard before the Hon. James R. Dowdell. The bill in this case was filed by the appellants, the children of Calvin Jackson, deceased, against the appellee, M. H. Wilson, and averred the following facts: Calvin Jackson died intestate in Chambers county in 1882. His widow, Martha T. Jackson, qualified as administratrix on his estate, shortly after his death, with M. H. Wilson, the appellee, as a surety on her administration bond.

Tried before the Hon. J. M. Carmichael. This action was brought by the appellant, Rollin Jefferson., against the appellees, L. C. Beáll, as executrix and C. M. Beall, as co^executor of thé will of Barden Burts ; and counted upon a judgment rendered by the superior court of Stewart' county in the State of Georgia, in favor of said plaintiff against the defendants.

Tried before the Hon-. W-. L. Parks, Special Judge. ' • This was an action of trover, brought by the appellee, R. L. McKissack, against the appellant, L. D. Williams, to recover damages for the wrongful conversion of a stock of goods. The material facts of the case are sufficiently stated in the opinion.

Tried before the Hon. J. W. Foster. This action was brought by the appellees against the appellant, and sought to recover damages for the breach of a contract. The facts of the case and ruling of the court which is reviewed on the present appeal are sufficiently stated in the opinion.

Heard before the Hon. Jebe N. Williams. The facts of the case are sufficiently stated in the opinion. cited Heflin v. Milton, 69 Ala. 854 ; Sayre v. Westcott, 94 Ala. 476. cited Cordova Goal Co. v. Long, 91 Ala. 538 ; Woodall v. Kelly & Co., 85 Ala. 368 ; Carver v. Eads, 65 Ala. 190 ; Plowman v. McLean, 14 Ala. 169.

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 set forth at length in the opinion. Upon the final submission of the cause, on the pleadings and proof, the chancellor rendered a decree denying the relief prayed for by the complainants and ordered the bill dismissed. From this decree the complainants appeal, and assign the rendition thereof as error.

Heard before the Hon. Jbbjí N. Williams. Held: and the defendant filed objections to each item of the report of the register, on the ground that the evidence did not sustain the report.

Tried before the Hon. J. M. Carmichael. The facts of this case are sufficiently stated in the opinion. Upon the introduction of all the evidence, the defendant requested the court to give to the jury the general affirmative charge in his behalf. The court refused to give this charge, and the defendant duly excepted.

<p> Application for Mandamus. </p> <p>1. Act in reference to the sale of liquors in Geneva county; unconstitutional. — The act approved February 6,1897, entitled “An act to provide for and regulate the sale of liquors and other intoxicating drinks in Geneva county, Alabama,” (Acts of 1896-97, p. 599), which in its first section declares that “It shall be unlawful for any person or persons to sell, barter, exchange, give away, deliver, or otherwise dispose of any spirituous, vinous or malt liquors • * * * * in Geneva county,” &c., is obnoxious to section 2 of Article IY of the Constitution, providing that each law shall contain but one subject, which shall be clearly expressed in its title, and such statute is, therefore, null and void.</p>

Tried before the Hon. J. W. Foster. This action was brought by “J. S. Collins, H. B. Collins, M. F. Collins and B. E. Collins, partners'doing business under the firm name of Collins Brothers & Co.,” against the appellant, B. P. McDuffee.

Tried before the Hon. J. A. Bilbro. The proceedings in this case were had upon a motion made by the appellant, the Birmingham Dry Goods Company, for a… Held: and that the deputy sheriff was made conversant with the pressing necessity for the immediate service of the writ; that upbn inquiry as to the failure to serve the subpoena, the attorney for the plaintiff was told that it was not served because J. J. Griffith and his brother asked that Julius Griffith be not served.

Tried before the Hon. John P. Hubbard, Special Judge. - This was a statutory action of ejectment. The action was originally commenced by James W. Clark against E. R. Beasley; but upon motion V. J. Holman was made a party defendant. Befóte entering upon the trial of the cause, the plaintiff moved the court to revive the cause, as then pending upon the docket in the city court, in the name of D. D. Howell as administrator of the estate of James W- Clark, deceased.

Heard before the Hon. Thomas Cobbs. The bill in this case was filed.by the appellant, the Highland Avenue & Belt Railroad Company, against the appellees, the Birmingham Union Railway Co. and the Birmingham Railway & Electric Company.

Tried before the Hon. John R. Tyson. This action was brought against the appellee, the Western Railway of Alabama, by the appellant, the Tallassee Palls Manufacturing Company, which sued for the use of certain insurance companies, which are alleged to have been subrogated to all of its rights.

Tried before the Hon. William L. Stephens, Special Judge. This was a statutory action of ejectment, brought by the appellee, Sophronia E. Rudder, against the appellant, James A. Hess, to recover a 50 acre tract of land. The facts of the case are set forth at length in the opinion. Upon the introduction of all the evidence, the courtr at the request of the plaintiff, gave several written charges to the jury.

Tried before the Hou. S. H. Spkott. The appellee, E. E. King, brought the present action against the appellants, H. W. Perry & Co. and others, to recover damages for the breach of a detinue bond.

Heard before the Hon. Thomas Cobbs. The facts in the case are sufficiently stated in the opinion. The bill presents no case for the interference of a court of equity. Before a court of equity will decree a rescission on account of error or mistake, that error or mistake must be of such character as to go to the very foundation and merits of the agreement — it must not only exist upon paper, as in this case, but it must exist in fact.

<p>Appeal from the Circuit Court of Elmore.</p> <p>Tried before the Hon. N. E. Henson.</p> <p>The facts of the case are sufficiently stated in the opinion. ■</p> <p>cited Irwin v. Mayor, 57 Ala. 6 ; Harrison v. Gordy, 57 Ala. 49 ; Williams v. State, 61 Ala. 33; Davis v.-State, 68 Ala. 58; Chambers County v. Lee County, 55 Ala. 534; Marengo Coimty v. Coleman, 55 Ala. 605 ; Askew v. Hale County, 54 Ala. 639 ; City Council v. Nat. B. & L. Asso., 108 Ala. 336 ; Sadler v. Langham, 34 Ala. 311; Jones v. Black, 48 Ala. 540; Mayor v. Da.rgan, 45 Ala. 310 ; Mayor v. Stonewall Ins. Co., 53 Ala. 570; Quartlebaum v. State, 79 Ala. 1; Noble v. Mitchell, 100 Ala. 519.</p> <p>cited Brown v. Parris, 93 Ala. 314; Harold v. Herrington, 95 Ala. 395; Ballentyne v. Wickersham, 75 Ala. 533.</p>

Original petition for Certiorari. One Charles Greer, upon being convicted for the violation of an ordinance of the town of Roanoke, and while detained in custody ordered by the sentence of the court, applied to the judge of the probate court for a writ of habeas corpus asking for his discharge. Upon the proceedings on the petition for habeas corpus the probate judge ordered said Charles Greer released.

Tried before the Hon. William S. Anderson. This was a suit brought by the appellees, John McGraw, his brothers and two sisters, all minors, and children of John McGraw, deceased, by their next friend, against the appellants, James McPhillips and John L. Rapier, as sureties on the official bond of Joseph Hodgson, register in chancery of Mobile county, Alabama, to recover a sum of money, which was paid into the custody of said Hodgson, as such register, belonging to said…

Tried before the Hon. N. D. Denson. J. J. Pierce being the owner and holder of valid registered claims against the fine and forfeiture fund of Elmore county, applied to the treasurer of said county for payment.

Tried before the Pión. N. D. Denson. The facts of the case are sufficiently stated in the opinion. Where a judgment is recorded, under the . Act of February 27, 1887, the registration of the judgment creates a lien on the defendant's property, whether execution is issued and-regularly kept or not, and' the recording of the judgment certificate preserves the lien exactly to the same extent as if executions had been issued without a lapse.

Heard before the Hon. Jebe N. Williams. The bill in this case was filed by the appellants againts the appellees, and sought contribution from the defendants to the complainants, for the reimbursement of moneys which he had paid in satisfaction of a bond, which he, together with the defendants and others, had executed.

Tried before the Hon. J. A. Bilbko. The appellant brought the present action against the appellee and counted in the complaint upon a bond executed by the defendant to him for the purchase price of fertilizer. The defense interposed is sufficiently stated ip the opinion.

Tried before the Hon. S. H. Sprott. This was a statutory action of detinue, brought by the appellant, E. F. Sloan, as administrator of the estate of Mrs. T. Sloan, deceased, against the appellee, John Wilson. The facts of the case are sufficiently stated in the opinion. There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the giving of the general affirmative charge requested by the defendant.

Heard before the Hon. Thomas Cobbs. • The appellants, J. J. Long and C. D. Long, filed the present bill against the appellees ; and sought to enforce a material man’s lien for lumber. obtained from the complainants and used by the Pocahontas Coal Company in improving their land in erecting buildings thereon.

Heard before the Hon. John W. Bishop. The bill in this case was filed by the appellant against the appellees. The facts in the case are sufficiently stated in the opinion. :On a motion to dismiss a bill for want of equity, all amendable defects in the bill will be treated as amended. — Haynes v. Short, 88 Ala. 562 ; Schoke v. Steiner, 100 Ala. 149-; Glover v. Hembree, 82 Ala. 324.

Heard before the Hon. John H. Disque. The bill in this case was filed by the appellee, Charles C. Nadel, against the appellant, W. Scott O’Connor, to foreclose a mortgage.

Tried before the Hon. John C. Anderson. The appellee, J. T. Lackland, obtained a judgment in a justice of the peace court against the appellant, W. J. Rogers. On this judgment execution was issued and was levied by the constable ujoon the homestead, of Rogers, in default of personal property. The execution was returned to,the justice with the indorsement of the constable, and the papers were then transmitted to the circuit court.

Appeal.from the Circuit Court of Madison. Tried before the Hon. John H. Sheeeey, Special Judge. This action was brought by the appellee against the appellants. The complaint contained the common counts for goods sold and delivered.

Tried before the Hon. D. D. Shelby, Special Judge, This action was brought by the appellant against the appellee. The complaint contained three counts. The second count was as follows : “2.

Heard before the Hon. Jebe N. Williams. The bill in this case was filed by the appellee against the appellants. The appeal is from a decree of the chancellor overruling the- demurrers interposed to the bill. The facts of the case, together with the grounds of demurrer, which are reviewed on the present appeal, are sufficiently stated in the opinion. The demurrer to the bill as amended should have been sustained.

Heard before the Hon. O. J. Semmbs. This was a statutory action of detinue brought by the appellees against the appellant.

Heard before the Hon. William H. Simpson. The bill in this case was filed by the appellees, Kent & Sabotka, and averred that one J. B. Brewer negotiated a loan from the Farmers Savings and Building and Loan Association, and to secui-e the same executed a mortgage upon certain parcels of real estate, and in accordance with the building and loan plan Brewer subscribed for certain shares of stock in the Association at the time of negotiating the loan, and as recited in the…

Tried before the Hon. John R. Tyson. This action was brought by the appellee, which was averred to be composed of the several fire companies of the city of Montgomery, against the appellant, The Phoenix Assurance Company of London ; and sought to recover of the defendant the penalty of $1,000 for having, without paying to the plaintiff the sum of $200, opened an office in the city of Montgomery, and transacted business pertaining to insurance companies.

Tried before the Hon. John Moore. The facts pertaining to this case are sufficiently set forth in the opinion. The special plea referred to therein, is as follows: “6 th.

Tried before the, Hon. John R. Tyson. This was an action brought by the appellant against the appellees, the Montgomery Furniture Company, and the sureties on a detinue bond, to recover damages for the breach of said bond. The .facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence, the court refused to give the several charges requested by the plaintiff, and gave the general affirmative charge at the request of the defendant.

Tried before the Hon. George E. Brewer. This action was brought by the appellees against the appellant; and counted upon eight promissory notes, executed by the defendant to the plaintiffs. This is the second appeal in the case. After the remandment of the cause, the defendant filed several pleas, setting up as a defense want of consideration and failure of consideration.

Tried before the Hon. John G. Winter,. This action was brought by the appellee against the appellant. The facts of the case are sufficiently stated in the opinion. There was judgment in favor of the plaintiff. The defendant appeals, and assigns as error, among other rulings, the refusal of the court to give the general affirmative charge requested by it. cited Freeman v. West. Un. Tel. Co., 13 So. East. Rep. 647 ; Kinion v. W. U. T. Co., 35 Pac. Rep. 75 ; Walser v. IF.

Tried before the Hon. A. D. Sayre. The appellant in this case was prosecuted and convicted for the violation of an ordinance of the city of Montgomery.

Tried before the lion. William IT. Tayloe. The bill in this case was filed by appellee, Lewis H. Rust, against the Electric Lighting Company of Mobile.

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

<p>Appeal from Shelby County Court.</p> <p>Tried before the Hon. D. R. McMillan.</p>

<p>Appeal from Jackson Circuit Court.</p> <p>Tried before the Hon. J. A. Bilbro.</p>

<p>Appeal from Chancery Court of Sumter.</p> <p>Heard before the Hon. W. H. Tayloe.</p>

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

<p>Appeal from Chancery Court of Crenshaw.</p> <p>Heard before the Hon. Jere N. Williams.</p>

<p>Appeal from the Chancery Court of Walker.</p> <p>Heard before the Hon. Thomas Cobbs.</p>

<p>Appeal from the Chancery Court of Jackson.</p> <p>Heard before the Hon. William H. Simpson.</p>

<p>Appeal from Gadsden City Court.</p> <p>Tried before the Hon. John PI. Disque.</p>

<p>Appeal from Mobile Chancery Court.</p> <p>Heard before the Hon. William H. Tayloe.</p>

<p>Appeal from tlie Circuit Court of Lowndes.</p> <p>Tried before the Hon. John R. Tyson.</p>