Volume 119 — Alabama Reports

Tried before Hon. John H. Bisque. Tlie appellant was indicted and tried for tlie murder of William Alexander, was convicted of murder in the first degree, and sentenced to the penitentiary for life.

<p> Indictment for Murder. </p> <p>1. Illegality in drawing grand jury, no objection to indictment. — No objection can be made to an indictment by plea in abatement, or motion to quash., because the names of grand jurors were not drawn from the jury box as required by law, or that there were no legal names in the jury box, or that the names were illegally drawn for any reason other than that they were not drawn in the presence of the officers designated by law.</p> <p>2. Venire not quashed because including jurors who had served within twelve months. — It is no ground to quash a venire in a capital case, that there are persons on the venire who had served as jurors within twelve months preceding.</p> <p>3. Record must show day set for trial of capital case. — The provision of law which requires the court to set a day for the trial of a defendant who may be punished capitally, is both mandatory and judicial, and the record on appeal must affirmatively show that the provision has been complied with.</p>

Clair Chancery Court. Tried before the Hon. J. B. Dowdell. The purpose for which the bill was filed, the facts averred therein, and the rélief prayed for, are sufficiently stated in the opinion. The defendants moved to dismiss the bill for want of equity, and also demurred upon the following grounds: “1.

Clair Circuit Court. Tried before the Hon. Geo. E. Brewer. The action was brought by the appellee against the appellants, and counted upon an attachment bond, which was executed by the defendants.

Tried before Hon. James W. Lapsley. Tbe summons to tbe defendant on tbe beginning of tbe suit was never executed, and defendant did not appear. No judgment was rendered' against bim in tbe justice court. With tbe motion to amend tbe affidavit for attachment, tbe plaintiff also moved to amend the attachment writ so as to conform to tbe proposed amendment to tbe affidavit, and direct a levy on tbe crop of defendant, instead of bis estate generally.

<p>Appeal from Bridgeport City Court.</p> <p>Tried before tbe Hon. Sam W. Tate.</p> <p>Tbe case is stated in the opinion.</p> <p>cited, Code of 1886,. §34:05Freeman v. Speegle, 83 Ala. 191; L & N. B. B. Go. v. Barker, 96 Ala. 435.</p> <p>cited, Leathenoood v. Suggs,. 96 Ala., 383; Springfield F. & M. Ins. Go. v. DeJarnett,. 11 Ala: 248; T. cC- G. B. B. Go. v. Danforth é Armstrong, 112 Ala. 80 ;Mobile Life Ins. Go. v. Randall, 74 Ala. 17Ó;. Turner v. Rountree, 30 Ala. 706.</p>

Tried before Hon. J. W. Foster. Tiie appellee sued t'he appellants on a garnishment bond executed in an ancillary garnishment proceeding in aid of a pending suit. The defendants pleaded the statute of limitations of three years. The plaintiff demurred to the plea on the ground that such action was not barred by the statute of limitation of three years.

Appeal .from. Pike Circuit Court. ■ Tried before Hon. W. L. Parks, Special Judge. Tbe averments of tbe complaint are sufficiently shown by the opinion. The defendant demurred to the second count upon the ground that it attempts to show wherein the bond sued on is broken, without setting out the conditions of the bond.

Tried before Hon. J. W. Foster. This was an action brought by the appellants, Henry Talmage & Company, against the appellees, W. W. Milliken and S. K. Meigs, “partners doing business as Milliken & Meigs.” The defendant Meigs interposed a special plea of non est factum, denying the execution of the bonds sued on. The defendants jointly filed pleas denying the consideration for the bonds sued on.

Tried before Hon. Wm. W. Wilkerson. Tlie questions presented by the various assignments of error, based on the pleadings and the evidence, are shown in the opinion.

Tried before Hon. James W. Lapsley. The note sued on, or one of the two similar notes, is as follows: “$166.66. Piedmont, Ala., Jan’y 6, 1890. Two years after date we promise to pay to the Piedmont Land and Improvement Company, or order, at its office in Piedmont, one hundred and sixty-six and 66-100 dollars, with interest from date, being the final installment of purchase money for lot number 28, in Block No. 20, in Piedmont, Ala. [Signed] A. L. Smith, Wm.

Tried before Hon. James J. Banks. The case made by the pleadings is stated in the opinion.

Appear from Lauderdale Circuit Court. Tried before Hon. Thomas R. Rotjrhac. The averments' of defendant’s special plea, No. 3, áre sufficiently shown by the opinion. Plaintiff’s replication to this plea, set forth, among others, the following grounds: (4.) “That at the time of the maturity of said note on said 22d day of June, 1891, said Florence National Bank was insolvent, and not authorized to make said collection in the manner alleged.

AppExIL from Cleburne County Court. Tried before Hon. T. J. Burton. The appellee sued the appellant on a bill of exchange. From a judgment for plaintiff, defendant appeals. The opinion states the case. cited, Williams v. Woodward Iron Go., 106 Ala. 254; Denson v. Gray, 118 Ala. 608, 616; Holmes v. State, 108 Ala. 24; Woodroio v. Hawvmg, 105 Ala. 240; Barney v. Peeples, 108 Ala. 476, 479.

Tried before Hon. J. W. Foster. The contract sued on and its subsequent modification are shown in the opinion.

Tried before Hon. J. A. Bilbko. This was an action on a promissory note, which was commenced before a justice of the peace. The original summons required the defendants to appear and answer the complaint of “Waldron Hopper, agent for Neeler Hopper.” The case was styled the same way in the statement of the cause of action. The justice rendered a judgment in favor of the plaintiff, and thereupon, the defendants took an appeal to the circuit court.

Tried before Hon. John H. Disqtje. Richmond Locomotive and Machine Works, a corporation, sued J. M. Moragne, W. B. Beeson and C. W. Whorton on two promissory notes, one of. which is as follows: $338.79. August 5th, 1890. Six months after date we promise to pay to Richmond Locomotive and Machine Works, or order, three hundred and thirty-eight, and 79-100 dollars, negotiable and payable at First National Bank, Gadsden, Ala., withont offset, for value received.

Tried before Hon. H. A. Sharpe. The form and terms of the contract sued on by appellee are sufficiently stated in the opinion.

Tried before Hon. W. W. Morris. On May the 12th, 1897, W. C. Matthews made and concluded a final settlement of his guardianship of the estate of Mary and Whitefield Mauldin, and a decree was rendered against him for $606.42, directing that execution issue against him and the sureties on his bond, viz: J. N. Sansburry, G. D. May, and W. It. Painter.

Tried before Hou. J. R. Tyson. The Bank of Brewton brought suit against D. S. Sowell, J. F. McDavid, F. L. McCawley, and G. W. Emmons,- on a promissory - note for $40.00 of- date September 26, 1896, purporting to be signed by defendants, payable to the order of J.' C. Emley, and indorsed as follows : “Pay to the order of Bank of Brewton, without recourse. J. C. Emley.

' Tried before. Hon. John H. Disqúe. The, bill was filed by the appellee to foreclose a mortgage on real estate, made by respondent, A.' B. Jones, and to. enjoin the removal of certain fixtures alleged to have been conveyed .by the mortgage.

Tried before Hon. S. H. Sprott. W. H. Cole caused an execution in his favor against one Thad Fowler to be levied on a horse in the defendant’s possession. Propst Bros, instituted' a claim suit.

Tried before Hon. Jere N. Williams. The bill avers that during the year 1892, the defendant, being engaged in t'he mercantile business in the town of Dothan, Henry County, Alabama, became indebted to complainants, severally, in the sums named as shown by itemized statements of accounts made exhibits to the bill.

Appeal 'from Jefferson Chancery Court. Tried before Hon. Thomas Cobbs. The appeal is taken from the final decree on pleadings and proof, granting complainant relief. The case is stated in the opinion. The contract to be specifically enforced must be founded on a valuable consideration. It must be fair, equal and just in all its terms and circumstances.

Tried before Hon. Thomas Cobbs. The amended bill, after averring its corporate existence and authority to own and operate a street railroad, and the ownership and possession of the right of way as set out in the opinion, further averred, that the respondent, a corporation, was building a railroad through the town of Woodlawn, and had constructed its road to within one quarter of a mile of the point where it had notified complainant it proposed, to cross complainant’s right…

<p>Appeal from Jefferson Chancery Court.</p> <p>Tried before Hon. Thomas Cobbs.</p> <p>The Birmingham Railway and Electric Co. filed its bill against Birmingham Traction Co. and the town of Woodlawn, to enjoin the Traction Company from constructing and operating a street railway along a street in the town of Woodlawn, the fee whereof was in complainant. On the answer of defendants, Birmingham Traction Co. made a motion to dissolve the temporary injunction, and to dismiss the bill for want of equity. The chancellor overruled these motions and defendant appeals. The facts are stated in the opinion.</p> <p>The answer is full, the title of complainant is unequivocally denied, and the injunction should be dissolved, there being no insolvency or irreparable injury shown.— E. & W. B. R. of Ala. v. E. T. V. & G. R. R., 75 Ala. 275, 283; H. A. c6 B. R. R. v. B. V. Ry Go., 93 Ala. 505. In determining whether the injunction shall be continued the court will cousiler the relative inconvenience to the parties. — E. & W. B. B. of Ala. v. E. T. V. & G. B. B., 75 Ala. 275; H. A. é B. B. B. v. B. Ü. By. Co., 93 Ala. 505; C. & W. B. B. v. Wither oto, 82 Ala. 190; Harrison v. Yearby, 87 Ala. 185, 189; Clifton Company v. Dye, 87 Ala. 468,' 471; Whitley' v. Dunham Company, 89 Ala. 493, 497; Western By. of Ala. v. A. G.. T. B. B., 96 Ala. 272, 283. Irreparable injury is a conclusion of law and the facts showing it must be alleged.- — 1 High on Injunctions, §722; Bolling v. Grooh, 104 Ala. 130, 138; Kingsbury v. Floioers, 65 Ala. 486; Banh v. U. 8. Loan Gompany, 104 Ala. 297, 302; Kellar v. Bullington, 101 Ala. 267; 20 Am. & Eng. Encyc. of Law, 163; 10 Ibid, 836.</p> <p>The town of Woodlawn had only an easement for the ordinary passage of persons and vehicles, and did not permit the granting of a right of way to appellant. It was such an additional burden as would allow appellee to demand compensation before being used. — 2 Dillon’s Mu. Corp. 703; 67 111. 439; 82 Ala. 297. See also Jones v. N. O. é 8. B. B. Go., 70 Aid. 230; East & West B. B. Go., 75 Ala. 280; Columbus & Western By. Go. v. Witheroio, 82 Ala. 190; H. A. & B. B. B. et al. v. B. By. & E. Co., 113 Ala. 239.</p>

Tried before Hon. Thomas Cobbs. The facts alleged in the bill so far as is necessary to set them out for a proper understanding of the case are, that the appellee, complainant below, is a duly organized and incorporated company, with full authority under its charter, to own, build, and construct lines of wire and poles for telephonic and telegraphic purposes, and that it now owns and is operating, and has for a long time — for ten years or more — owned and operated with full…

<p> Bill in Equity ’ to Avoid Collusive and Fraudulent Attachment, and for Accounting. </p> <p>1. Appeal not authorized from a decree overruling a demurrer to a plea in equity. — The statute authorizes au appeal from an interlocutory decree, sustaining or overruling a plea in equity, hut not from the sustaining or overruling a demurrer to such plea. It is only from decrees upon demurrers to a hill in equity, or upon a motion to dismiss a hill for want of equity, that an appeal is authorized. (Code, 1886, §427.)</p> <p>2. Demurrer to plea in equity not proper practice; set down for hearing. — By the regular course of practice in courts of chaneery, demurrers to pleas are unknown, and are never resorted to to settle the validity of a plea or an answer. If the legal sufficiency of a plea is denied, it is set down for hearing, the setting it down for hearing operating as an admission of all the facts contained in the plea.</p> <p>3. Bes adjudicata. — The judgment of a court of competent jurisdiction, rendered on the merits, as between the parties, is final and conclusive of the matter in controversy, so long as it remains unreversed. The principle applies alike to the decrees of a court of chancery, the judgments of courts of law, and the sentence of all tribunals of competent jurisdiction.</p> <p>4. Bes adjudicata; elements essential; plea. — To support a plea of res adjudicata, the parties must be the same, the subject matter the same, the point must be directly in question, and the judgment must be rendered on that point; the point in question must either have been actually decided, or necessarily involved in the first case, and the judgment or decree rendered on the merits of the case, and so much of the proceedings in the former suit as necessary to show these facts, must be set up in the plea.</p> <p>5. Bes adjudicata;' hill to declare general assignment no har to another to declare transaction fraudulent. — A bill in equity to declare attachments procured by a debtor and levied upon his property, a general assignment for the benefit of all his creditors and to have the property sold and equitably divided among all his creditors, is no bar to another bill by the same parties, setting up the same facts, and seeking an accounting of the proceeds of the property on the ground that the attachments were “suits commenced” with the intent to hinder, delay or defraud creditors, avoided by the statute of frauds. (Code, 1896, §2156.)</p> <p>6. Estoppel; does not arise hy failure to prevent the consummation of the fraud. — Creditors injured by attachment proceedings, instituted by other creditors in collusion with the debtor, are not estopped from bringing their bill to require an accounting for the proceeds of the property, because the bill was not filed.before the fraud was consummated by judgment and sale of the property under the attachment proceedings.</p>

Tried before-Hon. Wm. H. Simpson. The bill in this case was filed on January 6th, 1897, by the appellee, John B. Stuart, against the appellants, Rachel E. Freeman and W. H. Oldacre.

<p>Appeal from Gadsden City Court.</p> <p>Tried before Hon. John H. Disque.</p> <p>This case is stated in tbe opinion.</p> <p>cited, Cooke on Stockholders, 679; Hall v. Auburn T. Co27 Cal. 255; Ohewacla Iron Works v. Dismukes, 87 Ala. 346; M. & C. B. B. Co. v. Grayson, 88 Ala. 576; Ala. Gold Life Ins. Go. ■v. Gent. Agr. cG Meek. Assn., 54 Ala. 73; Sherwood v. Alvis, 83 Ala. 117; City Council v. Plank Boad Go., 31 Ala. 76; 1 Waterman on Corporations, 625; Com. v. Smith, 10 Allen, 448.</p> <p>cited, 1 Mor. on Cor. 227, 228 & note, 229, 233, 237, 249, 261, 262, 2 lb. 622, 624, 625, 631, 633, 711, 712, 693; Long v. Ga. Pac. B. B., 9.1 Ala. 519; Graham v. B. B. Co., Í02 U. S. 106; Parsons v. Joseph, 92 Ala. 406; Hughes v. Wright, 12 Am. St. Rep. 413; Jordan v. Collins, 107 Ala. 572; 2 Mor. Corp. 789, 792, 793, 800; Kelly v. Longshore, 78 Ala. 203; Decatur, etc., v. Moses, 89 Ala. 542; 79 Ala. 166.</p>

Tried before Hon. Wm. H. Simpson. The averments of the bill in sections 5 and 6 as to the subscription for stock, and the bond and mortgage given to secure the loan, are as follows; “In July, 1889, W. G. Skillman, in the name of complainant, made application to the defendant for a loan of money, and in order to procure said loan was required to subscribe in complainant’s name for 70 shares of defendant’s capital stock, and to agree to pay therefor at the rate of 35 cents…

Tried before Hon. Jere N. Williams. The case is stated in the opinion. In support of the proposition that the court cannot review the finding and decree of the chancellor, because it is shown affirmatively that all the evidence before the chancellor is not in the record, cited, 100 Ala. 483, 434; Thebodeaux v. Winder, 1 So. Rep. 451; 39 La.

Tried before Hon. Thomas Cobbs. The description of the property conveyed by the general assignment, attacked by the bill as insufficient in that regard, is as follows: “All and singular the goods, chattels, stocks, promissory notes, debts, choses in action, claims, demand's, property of every description belonging to the said party of the first part, or in which he has any right or interest whatever.” The trust declared in the general assignment, after payment of costs of…

Chancery Court. Tried before Hon. S. K. McSpadden. The facts are sufficiently stated in the opinion. The answers of defendants denied that the conveyances • sought to be declared a general assignment conveyed all or substantially all the property of the debtor. The chancellor rendered his decree granting complainants relief.

<p> Bill to Declare a Judgment by Confession a General Assignment and for Receiver. </p> <p>1. Appointment of receiver discretionary; probability of final relief. The apointment of a receiver is a matter of discretion governed by the whole circumstances of the case, the most material of which is the probability that the complainant will ultimately be entitled to a decree.</p> <p>2. Confessed judgment not a general assignment. — Prior to the act "of 1896-97, the statute in reference to general assignments, their legal operation and effect, by its terms was limited to transfers or conveyances by which a debtor uivested himself of title to all, or substantially all of his property or effects subject to the payment of debts, either as payment, or as security for prior debts; a judgment confessed, not a component part of a general assignment, was not within the operation of the statute, though by the registry in the court of probate, a lien was acquired on all the property of the debtor subject to execution.</p> <p>3. General assignment and fraudulent conveyance no common ingredient. — A general assignment is not-akin to a conveyance fraudulent as to creditors; they have no common ingredient; a bill may not be framed in the alternative to have the assignment, transfer, sale, or other transaction, declared fraudulent and vacated in toto, or if not found fraudulent, but found to be a general assignment, that it may be decreed so to operate as a common security for all creditors.</p> <p>4. Act of 1S96-97, to define general assignments, Sc. unconstitutional. — “An act to further define general assignments and to prevent the fraudulent disposition of property,” (Acts, 1896-97, pp. 1089-1090), declaring (Sec. 2), that particular acts of a debtor, the confession of judgment, or procurement of attachment — shall operate as a general assignment, and (Sec. 3), that the conveyance of property with intent to hinder, delay, and defraud creditors, &c. shall be a criminal offense, is violative of Article IV, section 2 of the Constitution, declaring that “each law shall contain but one subject, which shall be clearly expressed -in its title.”</p> <p>5. When act void in toto. — When two subjects are expressed in the title, and both are embraced in the body of. the act, the whole' act must be treated as void.</p> <p>6. Defect not cured by incorporation in Code. — Acts passed at the same session as the Code, and not a part .of the Code at the time of its adoption, but incorporated therein pursuant to legislative mandate requiring the commissioner to publish in the Code all acts passed at the same session, must derive their validity from the original enactment, and not from their introduction, or the manner of their introduction into the Code.</p>

Tried before Hon. Jno. G. Winter. Tlie decree of the chancellor appealed from ascertained the amount of the indebtedness of complainant, W. B. Davidson to Moses Bros, to be $14,164.52, and the aggregate amount of complainant’s liability, by reason of his suretyship for H. O. Moses, $12,427.95; the indebtedness of N. B. Holt to Moses Bros, to be $8,985.92, . and Holt’s liability as a co-snrety on the guardian’s bond, $6,799.08.

Tried before Hon. Jere N. Williams. The case is stated in the opinion. The averments of fraud are wholly insufficient, 3 Brick. Dig. 347, § 230; Norman v. Burns, '67 Ala. 248; Adler b. Vankirk L. & G. Go., 21 So. 490.

Tried before Hon. A. D. Sayre. The bill in this case was filed by the appellants, Mary W. Owen and P. H. Owen, against tbe appellee, Natban Gerson; and prayed to have enjoined a judgment recovered by the defendant Gerson against the complainants in the circuit court of Montgomery county, and that the complainants be permitted to set off against said judgment and in satisfaction thereof, certain claims which they held against the defendant.

Tried before Hon. Jeiíe N. Williams. The appeal is prosecuted from a final decree dismissing complainant’s bill. The facts are stated in the opinion. — We quote from Mr. Bigelow, (5t'h -Ed.), p. 570, the five ingredients which must concur to create an estoppel: 1. There must have been a false representation or concealment of material facts. 2. The representation must have been made with knowledge, actual or virtual, of the facts. 3.

<p> BUI to Enjoin Judgment in Ejectment. </p> <p>1. Estoppel in pais.- — When one knowingly suffers another, in his presence, to purchase property to which he has a claim or title, which he willfully conceals, he will be deemed to have waived his claim, and will not afterwards be permitted to assert it against the purchaser; but, when it appears from all the circumstances that the owner did not willfully conceal the state of the title, and that his acts and declarations were without any intention to disclaim title, or to deceive or mislead the purchaser, an estoppel does not arise.</p>

Tried before Hon. Wm. H. Simpson. The caption of the bill begins: “Your orator, J. D. Pullen, surviving partner of the firm of J. S. Childers & Co., his former partner, J. S. Childers, being dead, brings this bill,” &c. It was prayed that “your honor will, by decree, subject said real estate to the payment of the demand due your orator as surviving partner aforesaid.” Other averments of the bill are stated in the opinion.

Tried before Hon. W. H. Tayloe. Appellees filed a creditor’s bill against appellants. From a decree appointing a receiver, the defendants appeal.

Tried before Hon. Wm. W. Wilkerson. The facts are stated in the opinion. The court below decreed that complainant was not entitled to relief, and dismissed the bill. The decree is assigned as error.

Tried before Hon. John W. Mabry. Tbe suit was brought by appellee immediately on ber arrival at twenty-one years of age. Tbe complaint contained two counts, tbe first, tbe common count in assumpsit for money bad and received, and tbe second, a special count setting forth the facts in substance as stated in tbe opinion. The defendant filed a plea of the general issue to first count, and a demurrer to second count directed to its substance and sufficiency as a cause of action.

Tried before Hon. Tyre H. Davidson. Appellants, as administrators of the estate of R. L. Ingrain, deceased, filed exceptions under section 2081 of Code of 1896, to the report of commissioners allotting and setting apart a homestead as exempt to the widow and minor children of the decedent.

Appeal, from Montgomery Circuit Court. Tried before Hon. John B. .Tyson. This ivas a garnishment on a judgment. The facts are stated in the opinion. The rulings of the court in discharging the garnishee, and overruling plaintiff’s motion to require an oral examination of the garnishee, are assigned as error. cited, Code of 1896, §§2196, 2175, 594; Steiner v. Bank, 22 So. 30; Talladega Mer. Go. v. McDonald, 97 Ala. 508; Wright v. Swanson, 46 Ala. 708; Wap.

Tried before Hon. Wm. S. Anderson. This was a condemnation proceeding for a railroad right of way, instituted in the Probate Court of Mobile County, and removed by appeal to the Circuit Court. It appeared that the proposed right of way crossed the lands of appellee from east to west, leaving a triangular tract south of the right of way.

Tried before Hon. Jere N. Williams. • On May the 14th, 1897, appellees., Greil Bros. Co., and others, filed a bill in the Chancery Court of Conecuh County against appellants, Lehman-Durr Co., and others, seeking to have certain mortgages and transfers made by M. W. Etheridge & Son to other defendants, together with certain attachments against Etheridge & Son obtained by some of the defendants, all declared to be a general assignment for the benefit of all the creditors of…

Tried before Hon. J. B. Dowdell. The case is stated in the opinion.* The very incorporation proceedings which inform the world that the capital stock of the Piedmont Land & Improvement Company was $1,250,000.00, and who were the subscribers to the same, also informed the world as to what lands this capital stock was to be paid in and the valuation put. upon same.

Tried before Hon. Jere N. Williams. The bill in this case was filed on August 16, 1897, by the appellant, Fannie O. Treadwell, against C. C. Torbert.

Tried before Hon. Jno. G-. Winter. The appeal is taken by the respondents, A. T. Dreyspring, as administrator of the estate of Elias Judkins, deceased, et al., who assign as error the decree of the chancellor overruling the motion to suppress the depositions of complainant’s witnesses; the overruling of their objections to the mortgage and assignment, and the rendition of the final decree granting complainant relief.

Tried before Hon. Jno. H. Disque. The bill was filed to foreclose a vendor’s lien. The facts presented by the appeal are stated in the opinion.

Tried before the Hon. Thos. Cobbs. The opinion of the court is a review of the evidence and finding on the facts. It is not deemed necessary to set forth the testimony in detail further than stated in the opinion. The chancellor granted complainant relief. Respondents appeal.

<p>Appeal from Dale Chancery Court.</p> <p>Tried before Hon. Jere N. Williams.</p> <p>The case is stated in the opinion.</p>

Tried before Hon. Jere N. Williams. The respondent demurred to the bill on the grounds that it is multifarious and without equity; and moved to dismiss the bill for want of equity. The chancellor rendered a decree sustaining the demurrer, granting the motion, and dismissing the bill. Prom this decree complainant appeals.

Tried before Hon. Jere N. Williams. The appeal is prosecuted from a decree sustaining a demurrer to the bill. Complainant’s title, and the deed of respondent, assailed as a cloud on complainant’s title, are sufficiently set forth in the opinion of the court.

<p>Appeal from Montgomery City Court.</p> <p>Tried before Hon. A. D. Sayre.</p> <p>The case is stated in the opinion.</p>

Tried before Hon. J. W. Foster. On January 17, 1395, Paul, Jones & Co. sued out au attachment against Geo. F. Clewis, which was levied on the property in suit, which was at the time in his possession in Dothan, Alabama. On demand by the sheriff, plaintiffs in attachment executed an indemnity bond, with Malón & Sons as sureties. The property was sold by the sheriff and applied to the payment of the debt sued on.

<p> Bill in Equity to Annul Fraudulent Conveyance. </p> <p>1. Btorden of proof where conveyance assailed for fraud'. — Where a conveyance of lands is assailed for fraud by the existing creditors of the grantor, the grantee has the burden of proving the payment of a fair and adequate consideration, such as repels any presumption of fraud that would otherwise arise from the lack of a sufficient consideration, and that no penefLcial pecuniary interest was reserved to the grantor, which constituted a part of the consideration of the conveyance.</p> <p>2. Grantee not bound to corroborate testimony, when.- — in a suit to cancel for fraud a conveyance from husband to wife, where the latter testified that the conveyance was made in consideration of a debt due from the' husband for money' loaned him, giving the names of the parties from whom she received the money, their place of residence and, in the main, the dates, and such parties are accessible to complainant, no legal duty rested upon the wife to examine such parties to corroborate her statement, and no unfavorable inference can be drawn for not so doing.</p>

Tried before Hon. Jaimes W. Lapsley. The appellant sued on common counts for money had and received. The defendants pleaded the general issue, and certain special pleas, the substance of which is stated in the opinion. Plea No. 7 was as follows: “7th.

<p>Tried before Hon. John W. Bishop.</p> <p>Appeal from Talladega City Court.</p> <p>This case is stated in the opinion.</p>

Tried before Hon. Jere N. Williams. The bill was filed under the provisions of the act approved December 10, 1892, and now codified as sections 809-812 of the Code of 1896.

Tried before Hon. W. H. Tayloe. John Dial filed 'his bill against Ann Gambrel and her husband, W. T. Gambrel, seeking to reform and foreclose a mortgage given by them upon the wife’s lands. Bespondents filed their answer and cross-bill setting up, among other things, that the mortgage was given to secure the husband’s debt, and praying for the cancellation of the mortgage as a cloud on the wife’s title.

<p>Appeal from Madison Chancery Court.</p> <p>Tried before Hon. Wm. H. Simpson.</p> <p>The case is stated in the opinion.</p> <p>cited, Moore v. Tciit, (Ala.) 21 So. 820; ¡Smith v. Allen, 102 Ala. 406; Tyson v. Chestnut, 100 Ala. 571; Camp-hell v. Hatchett, 55 Ala. 548; Alexander v. Caldioell, 55 Ala. 517; Clark v. Hart, 57 Ala. 390; Dexter v. Ohlander, 97 Ala. 476; 2 Pom. Eq. Jur. 859; Howe v. Birmingham Land Co., 92 Ala. 390; Johnson v. Rogers, 112 Ala. 581.</p> <p>cited, 1 Brick. Dig. p. 681, §606; 21 Ala. 252; 17 Ala. 557; 11 Ala. 187; IS Ala. 682; 97 Ala. 476; Moore v. Tate, 114 Ala. 582; Orr v. Echols, in MSS; Trapp v. Moore, 21 Ala. 693, 698; Hemphill v. Moody, 64 Ala. 473, 474; ¡Stevens v. Hertzler, 22 So. 121; 1 Storv’s Eq. Jur. 162; 3 Brick. Dig. p. 430, §347; 21 L. R, A. 645; 5 Wallace, 689, 699; 13 Peters, 89; 15 Wallace, 94; 95 U. S. 23; 11 Am. & Eng. Encyc. of Law, 376, and note 5; Ih. p. 368, and note 4, p. 369, and note 5; 24 Am. St. Rep. 587; 29 Am. Dec. 543; 67 Am. Dec. 75; 94 Am. Dec. 671; 2 Rice on Evidence, pp. 793, 795; Starkie on Evidence, p. 873; Btix v. Keith, 85 Ala. 470; Roden v. Brown, 103 Ala. 324; Ohlander v. Dexter, 97 Ala. 479; Wailes v. Howison, 93 Ala. 378; Brice v. Ins. .Co., 55 N. Y. 240; s. c. 14 Am. Rep. 251; 5 L. E. A. 712, note.</p>

Tried before Hon. Wax. H. Simpson. The bill in this case was filed by the appellants, Orr, Scroggins & Hume, on the 8th December, 1893, against the appellees, Echols et al.j its object being to have set aside two certain deeds made by defendant, A. Ewing Echols, to his Avife and co-defendant, Daisy Echols, made, the one, on the 1st, and the other on the 10th June, 1893.

Tried before Hon. J. N. Dowdell. The case made by the bill is stated in the opinion. The chancellor sustained demurrers thereto on the following grounds: “1. Nespondents demur to said bill of complaint for that J. N. Farrow who is shown to be the trustee in the alleged deed of trust shown in “Exhibit A.” to complainants’ bill, is a necessary party to this suit and he is not made a party complainant or respondent to said bill of complaint. “2.

<p>Appeal from Shelby Circuit Court.</p> <p>Tried, before Hon. George E. Brewer.</p> <p>The case is stated in the opinion.</p>

Tried before Hon. John Moore. The appellees sued the appellants to recover a parcel of land, Avhich was described in the complaint the same as in plaintiffs’ deed. This description and all the facts sufficiently appear in the opinion of the court- The case Avas tried on an agreed statement of facts. From a* judgment for plaintiffs, defendants appeal.

Tried before Hon. John Moore. Louis Frederick sued James Wilcox and Willis Owens to recover possession of lands. The defendants pleaded not guilty. The plaintiff introduced evidence tending to show title and possession prior to t'he bringing of his suit. The defendants then offered in evidence a mortgage executed by the plaintiff, Louis Frederick, and A. E. Frederick, his wife, to the defendant, James Wilcox.

Court. Tried before Hon. J. A. Bilbro. The facts are stated in the opinion. The court gave the general affirmative charge for plaintiff, and refused a like charge for defendant. These rulings are assigned as error. The condemnation proceedings conclude any right the plaintiff then had, or subsequently acquired by 'him; his after acquired title inured to the benefit of defendant.- — Farrow v. N. O. & St. L. R. R. Go., 109 Ala. 456; 19 Am. and Eng. Encyc. Law, 846; Rev. Stat.

. Tried before Hon. John H. Risque,. The facts are fully stated in the opinion.. The transfer or indorsement on the.Paden mortgage.referred to in the opinion was as follows: “For value received L hereby transfer all my. right, title, and interest in and. to the within mortgage to J. I-I. Hendrix without recourse on me in any manner whatever. , This the 10th day of September, 1892. Witness, W. E. - White.

Tried before Hon. J. It. Tyson. Tbis was a statutory action of ejectment, brought by tbe appellee, Bernbard Kabn, against tbe appellant, Simon Davidson, to recover certain lands specifically described in tbe complaint. On the trial of the case tbe following facts were shown: On May 24, 1894, tbe plaintiff recovered a judgment in tbe Circuit Court of Wilcox County, against Max Machael'is for $2,763.

Tried before Hon. Jere N. Williams. This canse was submitted in the court below on an agreed statement of facts, wbicb are fully shown in the opinion. It was agreed that the pleadings be amended so as to present the one question mentioned in the opinion.

Tried before Hon. Wit. H. Simpson. These several consolidated cases and their respective numbers in the court below were as follows: J. F. Washington et al. v. IF. H. Bogart, Adm’r et al, No. 801; J. F. Washington, Admv’r, &c. v. W. H. Bogart, Adm’r et al, No. 802; Bailie Bell et al. v. W. 3. Bogart et al, No. 804; TF. H. Bogart v. J. F. Washington et al, No. 805. The appeal is prosecuted by J. F. Washington, individually and as administrator.

Dale Chancery Court. Tried before Hon. Jebe N. Williams. The averments of the bill are sufficiently stated in the opinion. The respondents demurred upon the following grounds: (3). It appears in and by the allegations of said bill that the several complainants are each simple contract creditors of this defendant and have no lien upon the property, or any of the property sought to be subject to the payment of their debts. (4).

' Tried before Hon. Wm. H. Simpson. John A Lusk and Robert N. Bell filed their bill against appellants, two of whom were minors, to divest . the legal title to certain lands out of defendants, invest same in complainants, and to foreclose a mortgage of which complainants were assignees. Complainants applied for the appointment of a receiver, and this appeal is taken from the decree of the chancellor appointing a receiver. The facts are sufficiently stated in the opinion.

<p>Appeal from Montgomery City Court.</p> <p>Tried before the Hon. A. D. Sayre.</p> <p>The case is sufficiently stated in the opinion.</p> <p>cited, 2 Bindley on Partnership, p. 593; Utter son v. Mair, 2 Vesy, 95; Rosenmoig v. Thompson, 66 Mel. 593.</p> <p>cited, Bromberg v. Bates, 98 Ala. 621; Gould v. Hayes, 19 Ala; Baker v. Mitchell, 109 Ala. 490; Weakley v. Gurley, 60 Ala. 399; 1 Daniel Chancery PL and Practice, p. 337; 1 Beach on Mod. Eq. Juris. 21; Am. & Eng. Encyc. of Law, 947; McHan v. Orchoay, 82 Ala. 463; Tecumseh Iron Go. v. Gamp, 93 Ala. 572; Tygh v. Dolan, 95 Ala. 269; Lehman v. Meyer, 67 Ala. 396; Adams v. Jones, 68 Ala. 119.</p>

Tried before Hon. N. H. Thompson. Tlie facts are sufficiently stated in the opinion of the court. — An administrator may be removed and his letters revoked for his removal from the state. — Code, 1896, §92. What will disqualify from acting as executor, will defeat the right to be administrator. — 1 Woerner on Amer. Law of Administration, p. 534, Art. 241. The right of nonresidents to letters of administration are limited to cases defined by statute. — Code of 1896, §82.

. Tried before Hon. Thos. R. Roulhae. This action was brought September 1, 1897, by the appellee, Kate M. Johnson, as executrix of the estate of W. A. Johnson, deceased, against the appellant, Robert Aycock, as administrator'of the-estate of John Aycock, deceased. . The complaint counted upon two notes, under seal, executed by the defendant’s intestate and one H. T. Cullender, on February 16, 1889, and payable one day after date to the order of W. A. Johnson.

Tried before Hon. D. C. Blackwell. . This was a statutory action in the nature of ejectment, brought by the appellee, T. J. Johns, as administrator of the estate of J. R. Newell, deceased, to recover the possession of certain described real estate. There was no conflict in the evidence.

Tried before Hon. Jas. J. Banks. The error assigned and insisted on is the overruling of a motion to strike the claim of exemptions from the file. The case is stated in the opinion. cited, Balkupi v. 'Strauss, 100 Ala. 207, Collins v. Baldioin,'109 Ala. 405; Robertson v. State, 7 West Rep. (Ind.), 481, 488; S. C. 10 N. E. Rep. 582, 588. cited, Guilford et al. v. Reeves ■ el al., 15 So. 661-2.

Tried before Hon. J. W.- Foster. Appellants, W. R. McKensie et al. sued out attachments against H. Blumberg and levied on the goods in suit. D. Rothschild instituted a claim suit. On the trial plaintiffs proved their debts, the levy of their attachments upon the property in the possession of the defendant, and the value of the property.

<p> Action on Promissory Notes. </p> <p>1. Misrepresentation by vendor of chattels; when authorizes rescission of sale. — A misrepresentation by a vendor of chattels of a material fact, made at the time or pending the negotiations for sale, and on which the-purchaser has a right to rely, and does, in fact, rely, and which was a material, even though not the exclusive, inducement without which he would' not have made the contract, and which results in injury to the buyer, will authorize a rescission of the sale, and furnish a ground of defense to an action for the purchase money.</p> <p>2. Fraud and damages must concur; when plea must show injury. In an action for the purchase price of chattels sold, to sustain a defense based upon the misrepresentations of the vendor, fraud and damages must concur, and neither, unaccompanied by the other, is sufficient; and unless the representation is such that the law will infer injury to the purchaser from its falsity, such injury must he averred in the plea.</p> <p>3. Representations of salable quality of patent churn; when material. — On a sale of the right to vend a patented churn, repre- ' sentations by the vendor relating to the number of churns that had been sold, and profit's made, by certain named persons within a specified time, and che aggregate number sold within a designated territory, made for the purpose of inducing -the belief that the churn would meet with a ready sale, are material and well calculated to induce such belief; but the nature of these misrepresentations is not such that injury would necessarily result from their falsity, and a plea failing to aver injury therefrom is not good.</p> <p>4. Offer to rescind; return of thing sold. — As a general principle, a contract of sale, unless the parties consent, cannot be rescinded, if the thing sold is of any intrinsic value, "without the offer to return it; but where the thing sold "is the mere authority, by parol contract, to vend a patented churn within designated territory, a rescission of itself would operate to restore all that was received, placing the parties in statu quo, and a plea averring merely that the purchaser offered to rescind before suit brought is not objectionable because it does not aver that he offered to return what he received on the sale.</p> <p>5. Representations as to quality of patented article. — A representation made by the owner of patented churn to one to whom he is endeavoring to sell the right to vend the churn, to the effect “that a certain part of the churn, called the strainer, would separate the butter from the milk — that' it would allow the milk to flow out of the churn, and would retain the butter in the churn” — may be relied on by the purchaser, and is not open to the objection that it is an expression of opinion or judgment as to a matter equally open to the observation of both parties.</p> <p>6. Sufficiency of plea setting up a contemporaneous agreement. — In an action on a promissory note, payable unconditionally, a plea setting up a contemporaneous agreement, not shown to be in writing, to the effect that the notes were payable upon certain conditions, is demurrable, as seeking to vary the terms of the writing by parol.</p>

Tried before Hon. Wm. W. Wilkerson. This action was brought by the appellant, R. L. King, against the appellees, James N. White and Marion N. George. The case made by the complaint is sufficiently stated in the opinion. To the complaint, the defendant demurred upon the following grounds: “1. No facts are stated which justify the conclusion of wrong on the part of the defendants.- 2.

Tried before Hon. J. W. Foster. This was a statutory action of forcible entry and detainer. The facts are stated in the opinion. The court below gave the affirmative charge for defendant. This ruling is assigned as error. cited, 3 Brick.

' Tried before Hon. H. C. Speake. Tlie first count of the complaint is as follows: “The plaintiff claims of the defendant the sum of seven hundred dollars ($700.00), with interest thereon, the value pf his stock of merchandise, consisting of family groceries, confectioneries, tobacco, cigars, cases, lamps and scales and such other merchandise, not more hazardous, keptforsale, usual to such stocks, while contained in the one story of the brick one-story building, with metal…

Tried before Hon. J. M. Carmichael. The bill of exceptions describes the conveyance upon which the appellant, defendant below, relies as passing the after acquired title of the wife, by way of estoppel under her covenants of warranty, as follows: “On the 19th 'day of December, 1889, J. T. Prior and Ella Prior executed a deed to W. W. Prior to the land in controversy, reciting a consideration of four hundred dollars to them in hand paid by W. W. Prior, and with the following…

Tried before Hon. J. W. Foster. This was an action of-detinue brought by t'he appellee, Paul Harper, against the appellant, W. W. Kirkpatrick, to recover a certain quantity of corn.

Tried before Hon. H. C. Speaks. F. H. Finney made affidavit for attachment averring: “That he is the landlord of J. K. Ragsdale and that the said J. K. Ragsdale is his tenant of what is known as tlie Barnett place in Cullman County, Alabama, and that tlie said J. K. Ragsdale is justly indebted to the said F. H. Finney for rent and advances in the sum of one hundred and ninety-three dollars and that the said J. K. Ragsdale has removed from said premises or otherwise disposed…

Tried before Hon. T. J. Burton. The appellant, as landlord, sued by attachment upon an alleged account for rent and advances due from the appellee, as tenant.

The case is stated in tlie opinion. The decree dismissing the cause for the want of prosecution could not affect in any way the decree perpetuating the injunction. 2 Dan. Ch. PI. & Pr. 1683; Ascough v. Townsend, 2 Vesey, 197; Oldfield v. Cobbett, 20 Beaver, 563; Justice v. HcBroom, 1 Lea (Tenn.) 556; Kerr on Injunctions, 637, 632-3; Ex parte Cressioell, 60 Ala. 378; Cochran v. Miller, 74 Ala. 63; Ex pwrte Elyton Land■ Co., 104 Ala. 91; Trump v. McDonald, 112 Ala. 256, 259.

Tried before Hon. J. A. Bilbro. Appellees applied for mandamus to require appellants, the Mayor and Councilmen of Port Payne, to open the returns of a municipal election, duly certified by the inspectors of election, declare the result, and issue certificates of election to relators whose election was sliown by the returns.

Tried before Hon. H. C. Speaks. The case is stated in the opinion. — To allow defendants to divert the funds, where the rights of a creditor are involved, impairs the obligation of the contract. The legislature could not authorize such diversion.— Fazende v. Gity of Houston, 34 Fed. Rep. 95; 1 Hill. Mun. Corp. 69, and authorities cited to note 1; G-oodale v. Fennell, 22 Am. Rep. 321.

Howarcl-Harrison Iron Company, a corporation engaged in the manufacture of cast iron pipes, filed its petition for a writ of mandamus and a writ of prohibition, showing among other things, that petitioner, by its agent, made an assessment of its property for the tax year 1897, to the tax assessor of Jefferson county, as follows : Personal property, $60,430.00; real estate, $13,-265.00; total, $73,695.00; that the assessor entered such assessment on the tax book and returned…

Tried before Hon. John Gf. Winter. Appellant recovered a judgment for $13.50. The court in the judgment entry gave plaintiff costs to that amount, and taxed 'him with the residue. He made a motion' to retax the costs, alleging that the action Avas ox contracta, and, therefore, the entire costs should go against defendant. The motion Avas overruled, and exception reserved.

<p>Appeal from Etowah Circuit Court.</p> <p>Tried before Hon. J. A. Bilbro.</p> <p>The case is stated in the opinion.</p> <p>cited, Deloach v. Robbins, 102 Ala. 288; Leonard v. Brewer, 86 Ala. 390; ' McLaughlin v. Bradford, 82 Ala. 431; 8 Am. and Eng. Encyc. of Law, 465, 469; 1 Freeman on Executions, 63, note; Enslen v. Wheeler, 98 Ala. 200.</p> <p>cited, Freeman on Judgments 442; Perkins v. Brierfield, 77 Ala. 403; Enslen v. Wheeler, 98 Ala. 200; 1 Am. and Eng. Encyc. of Law, (2 Ed.) 570; Finney v. Erie Oity Iron Works, 20 So.; Penn. v. Langdon, 99 U. S. 581; Oolbert v. Daniel, 52 Ala. 314; Walls v. Grigsby, 42 Ala. 473; Steele v. Adams, 21 Ala. 534; Beach v. Dennis, 47 Ala. 262; Ray v. Womble, 56 Ala. 32; Locket v. Hurt, 57 Ala. 198; Ootoan v. Sapp, 74 Ala. 44; Holly v. Bass, 68 Ala. 206; Scranton v. Ballard, 64 Ala. 403.</p>

Tried before Hon. H. L. Watlington. Tlie facts are sufficiently stated in the opinion. The court, trying without a jury, denied the petition, and petitioner appeals. cited, Green, on Ev. 509; 13 A. & E. Encyc. of Law, 1157; Stewart v. Conner, 9 Ala. 803; Benner v. Bank, 9 Wheaton, 581; De,rriti v. Alexander, 25 Ala. 265; Garrett v. Lynch, 45 Ala. 204; 20 Am. and Eng.

Appear from Gadsden City Court. Tried before Hon. John H. Bisque. This action was brought by appellee, Alice H. George, against A. W. Burns, Sheriff of Etowah County, and the sureties on his official bond.

Aeeear from Gadsden City Court. Tried before Hon. John H. Disque. The facts of the case are sufficiently stated in the opinion. The cause iras tried by the court without a jury, and upon the hearing of all the evidence, the court rendered judgment in favor of the plaintiffs.

Tried before Hon. Jxo. Pelham. Tlie facts of tlie case are sufficently stated in tlie opinion. Tlie court, at tlie request of tlie plaintiff, gave to tlie jury tlie following written charges: (3.) “The court charges the jury that if from the evidence they find that the shoes levied upon in this case belong to John I).

Tried before lion. J. M. Carmichael. Tlie facts are stated in the opinion.

Tried before Hon. J. W. Poster. The case is stated in the opinion. If a court of limited jurisdiction is charged with the ascertainment of a jurisdictional fact, and its proceedings show that the fact was ascertained, they cánnot be collaterally impeached. Pettus v. McGlanahan, 52 Ala. 59; Pollard v. American Freehold Land Mortg. Go., 103 Ala. 289. Officers act judicially in taking acknowledgments. — Griffith v. Ventrcss, 91 Ala. 374; American Freehold Land Mort.

<p> Application to Sell Personal Property for Division Among Joint Owners. </p> <p>1. Proceedings to sell personalty for division, does not affect the title of strangers. — Where, in an application to sell personal property for division among joint owners, a party to the proceeding filed his sworn answer setting up title to the property in his wife, who is not made a party nor served with notice, and who does not appear in court, the decree of the court could not divest her of any right or claim she may have had in the property.</p> <p>2. Errors cannot he assigned in hehalf of stranger. — A party to a proceeding to sell personalty for division cannot assign errors on appeal as to the rulings of the court affecting the interest of his wife, not a party to the proceeding, and which were not prejudicial to his own individual interest.</p>

Tried before I-Ion. J. A. Bilbro. The cause of action sued on and the facts of the case' ■are stated in the opinion. The defendant pleaded the general issue and the following special plea: No. 2, “For further answer defendant says that it did receive'the leather, as averred in said complaint, to be transported and delivered as averred therein.

Tried before Hon. George F. Brewer. Tlie first count of the complaint was as follows: “The plaintiff claims of the defendant one hundred and inven ty dollars as damages for that whereas the defendant, before and at the time of the delivery of the goods hereinafter mentioned, urns and thence hitherto hath been and still is a common carrier of goods and chattels for hire, to-wit: from Calera, in Shelby county, to Bessemer, in Jefferson County, Alabama; and the plaintiff on the…

Tried before Hon. J. M. Carmichael. The facts of the case are sufficiently stated in the opinion.

<p>Appeal from Geneva Circuit Court.</p> <p>Tried before Hon. J. W. Foster.</p> <p>The case is stated in the opinion.</p> <p>cited, Motile cG Ohio lili. Go. v. Copeland, 63 Ala. 219; Montgomery cG Búfala li. R. Co. v. Culver, To Ala. 587; Louisville & Nashville R. R. Co. v. Meyer, 78 Ala. 597; Motile é Ohio R. R. Co. v. Dismuhesj 18 Am. and Eng. Encyc. of Law, pp. 225-6; 3 It, 933.</p>

Tried before Hon. Wm. W. Wilkerson. The cause of action set up in the complaint, and the facts of the case are shown in the opinion.

Tried before Hon. Jas. J. Banks. This shit was brought on October 26, 1896. The plaintiff testified that the injury occurred Sept. 3, 1896.

• Tried before Hon. J. A. Bilbro. This was an action brought by the appellee, Telly John Burgess, suing by his next friend, against the appellant, the Alabama Great Southern Railroad Company; and sought to recover damages for personal injuries. The cause was tried upon the 2d and 7th counts of the complaint.

Tried, before Hon. Wm. W. Wilkerson. Plaintiff’s evidence tended to show that deceased ■ bought a ticket at Brookside for passage to Birmingham on the train of defendant, but got on one of the box or coal cars instead of in the caboose, where passengers should ride.' All the other facts necessary to an understanding of the court’s rulings are sufficiently stated in the opinion.

Tried before Hon. John H. Bisque. On December 5, 1893, the appellee, J. M. Davis, brought the present suit against the Alabama Great Southern Railroad Company.

Tried before Hon. James W. Lapsley. The second count of the complaint avered that “there Aims an ordinance of the city of Anniston in force on the 14th day of December, 1895, (the date of the accident) AA’hich prohibited any railroad, under penalty, from obstructing a street, by allowing cars to stand thereon, in the corporate limits, longer than five minutes at any one time,” etc. The 7th count, after setting forth the ordinancé and obstruction of the street substantially…

Tried. Before Hon. Wm. S. Anderson. John H. Abbott sued tbe City of Mobile for personal injuries resulting from a defective sidewalk, alleging ■ in bis complaint that tbe sidewalk “ivas left by said city in an unsafe, impassable and dangerous condition, wbicb unsafe, impassable and dangerous condition of said street was well known to said defendant and without proper protection or notice to citizens and travelers against accidents; that tbe plaintiff on or about tbe date…

Tried before Hon. H. A. Sharpe. Tbe facts of this case are sufficiently stated in tbe opinion. Upon tbe introduction of all tbe evidence, tbe court at the request of tbe defendant gave the general affirmative charge in its behalf. To tbe giving of this charge tbe plaintiff duly excepted. There were verdict and judgment for defendant. Tbe plaintiff appeals, and assigns as error tbe ruling of tbe court in giving the general affirmative charge requested by tbe defendant.

Tried before Hon. George E. Brewer. Appellee sued for damages for the negligent killing of a mare and a colt.

Tried before Hon. J. A. Bilbro. The rulings of the lower court upon the evidence are shown by the opinion. The plaintiff requested the following written charges, which were refused: (1.) “That it is the duty of the engineer to be diligent in looking out for obstructions, and in this cause it was the duty of the engineer to discover the cow as early as possible and take due care not to injure her.

Tried before Hon. Wm, W. Wilkerson. The case made by the pleadings and proof is sufficiently stated in the opinion. The defendant excepted to the following portions of the court’s oral charge: (a.) “The duty of a motorman on an electric car varies to some extent according to the locality in which he is running.

<p>Appeal from Mobile Chancery Court.</p> <p>Tried before Hon. W. H. Tayloe.</p> <p>The case is stated in the opinion.</p> <p>cited, Code 1886, §1880; Nelms v. Keimon, 88 Ala. 331; Hanna v. Steele, 84 Ala. 306; Mechem Agency, 417; Anderson v. Timber-lake; 22 S. B. 431, 433; 1 Encyc. of Law, (2d Ed.) 1124; Mechem Agency, 41, note 4; A. G. S. R. R. Go. v. Hawk, 72 Ala. 112; 1 Brick. Dig. 834, sec. 439; Garrett v. Garrett, 29 Ala. 439; Whitlock v. Keiffer, 31 Ala. 201; 1 Encyc. of Law (2d Ed.), 723, note 2.</p> <p>cited, Tiedman on Beal Property, p. 207; Sibley v. Alba. 95 Ala. 191; Bracly v. Huff, 75 Ala. 80; Stocks v. Young, 67 Ala. 341; Nelms v. Kennon, 88 Ala. 329; Prior v. Hollingcr, lb. 405; Hanna v. Steele, 84 Ala. 305.</p>

Tried before Hon. M. T. Porter. The pleadings, with the questions presented thereon, and all the material facts of the case, are shown by the opinion. The court refused the following charges requested by proponent: 1. The court charges you that the contestants have failed to prove the averments made in the ground of contest numbered three, and that upon that ground your verdict must be in favor of the proponent. 2.

Tried before Hon. J. B. Gaston. The grounds of contest, with the questions raised by demurrer thereto, and rulings of the court upon the evidence, are stated in- the opinion. By the two instruments offered for probate as the will of Leonora Kennedy, deceased, she gave the life interest in all her property, except her dwelling house, to her husband, A. M. Kennedy, the contestant here.

<p>Appeal from Pike Chancery Court.</p> <p>Tried before Hon. Jere N. Williams.</p> <p>The case is stated in the opinion.</p> <p>cited, rule 28, Code 1896, p. 1208; Moog v. Strange, 72 Ala. 460 ; Howard v. Bugbee, 25 Ala. 548; Danforth v. Herbert, 33 Ala. 497; Holly v. Wilkinson, 31 Ala. 196; Cameron v. Abbott, 30 Ala. 416.</p> <p>cited, Brown v. Brown, 81 Ala. 508; 1 Dan. Ch. PI. and Pr. 796; 2 Dan. Ch. PI. and Pr. 1371; Ex Parte Robinson, -72 Ala. 389; Tanker sly v. Pettis, 71 Ala. 185; Strange v. Moog, 72 Ala. 460; 28th, Pule Ch. Pr., Code 1896, p. 1208.</p>

<p>Appeal from Calhoun Circuit Court.</p> <p>Tried before Hon. Geo. E. Brewer.</p> <p>cited, Blackwell on Tax Titles, 278-9.</p> <p>cited, Code of 1886, §600.</p>