Volume 120 — Alabama Reports

Heard before the Hon. Thos. M. Arrington. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. H. C. Speake. This was an action brought by the appellee, H. A. Sparkman, against the appellant, Ned Orr, and counted upon a promissory note, executed by the defendant to one Robert S. Henry, on May 15, 1896, and payable June 15, 1896, at the First National Bank of Decatur. This note was transferred by Henry, the payee therein, to the plaintiff, on June 20, 1896.

. Appeal, from the City. Court- .of Montgomery in Equity. Heard before the Hon. John G. Winter. The bill in this case was filed by the appellees against the appellants. The facts of the case are sufficiently stated in the opinion. The appeal is from a decree of the judge of the city court, sitting as chancellor, overruling the respondent’s motion to dismiss the bill for the want of equity, and also the demurrers interposed to the bill.

Heard before the Hon. William S. Anderson. •This was a proceeding by the appellee, the Postal Telegraph Cable Company, to condemn an easement in its favor for the purpose of constructing and operating a line of telegraph over the right of way of the Mobile & ■Ohio Eailroad Company, and was commenced by a petition filed by the Postal Telegraph Cable Company, addressed to the judge of the probate court of Mobile county.

Tried before the Hon. James J. Banks. This was an action brought by the appellant against the appellee, and counted upon two promissory notes.

Tried before the Hon. H. A. Sharpe. The apellant, George E. Harrison, brought suit against John Pugh, to recover an amount due upon a note. An ancillary writ of garnishment was sued out, and was served upon the Louisville & Nashville Railroad Company. In answer to the writ, the garnishee admitted an indebtedness of $4.29 to the defendant. The plaintiff instituted a contest of this answer. The facts disclosed thereon are sufficiently stated in the opinion.

Heard before the Hou. William H. Tayloe. The facts of the case are sufficiently stated in the opinion. The jurisdiction of our courts of chancery to declare a deed absolute on its face, to be a mortgage, by w,ay of enforcing a parol agreement that it should so operate, is of such long standing in this State that it is only necessary to cite some of the cases. — Chapman v. Hughes, 14 Ala. 218 ; Reeves v Abercrombie, 108 Ala. 538.

Tried before Hon. H. A. Sharpe. This was an action brought by the appellee against the appellant. The purpose of the suit and the facts of the case are sufficiently stated in the opinion.

Tried before the Hon. William S. Anderson. This action was brought by the appellant, Francis G-. Foxworth, against the appellees, Brown Brothers ; and counted upon the ..common count for money had and received. The facts of the case are sufficiently stated in the opinion. There were several exceptions reserved by the plaintiff to rulings upon the evidence ; but the facts pertaining thereto are sufficiently stated in the opinion also.

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

Heard before the Hon. Cabot Lull. The facts of the case are sufficiently stated in the opinion. The appointment by the testator of an executor is no waiver of the statutory requirement that the person so nominated “shall be fit to serve.” It is against the statute and public policy that any man should be inducted into a trust when there is every reason to believe that he cannot and will not discharge the duties of the position.

Heard before the Hon. H. A. Sharpe. The bill in this case was filed by the appellee against the appellant, Walter Moore, and averred that the complainant was the owner of a judgment against the defendant, upon which execution had been issued and returned no property found. That said judgment, with interest and with .costs is still due and unpaid.

Tried before the Hon. N. D. Denson. This was an action of trespass brought by M. A. West against the appellees, Lee Hayes, as sheriff of Chilton county, and the sureties on his official bond ; and sought, as averred in the first count of the complaint, to recover damages for entering upon certain described premises in the possession of the plaintiff, and “removing therefrom one saw mill, engine and boiler — fixtures attached to said land.” The complaint contained two counts.

Tried before the Hon. John W. Bíshop. This was an action brought by the appellee, C. R. McNair, against the Western Union Telegraph Company, to recover damages suffered by the plaintiff by reason of the negligence of the defendant in the delivery of a telegraphic message announcing the death of the plaintiff’s father ; it being averred in the complaint that- had the message been delivered to the plaintiff within a reasonable time, he could have reached the place where his…

Tried before the Hon. George E. Brewer. The facts of.this case are sufficiently stated in the opinion. The plaintiff moved to strike the claim of exemptions from the file, on the ground that the amount claimed had been paid to the claimant by the garnishee, and that the amount paid by the defendant company could not be claimed as exempt.

Heard before the Hon. Jere N. Williams. The bill in this case was filed by the appellee, Joel J. Green, against the appellants, W. H. Murphy and J. C. Travis and M. E. Travis. The bill averred the following facts : On July 15, 1892, the complainant purchased certain lands from Mrs. Mary E. Travis, the -wife of J. C. Travis, and on that day she executed to him a deed to said lands.

Tried before the Hon. James W. Lapsley. This action was brought by the appellee, A. D. Cheney, against the First National Bank of Anniston, to recover $4,000 for the breach of the conditions of a bond made by the defendant and payable to the plaintiff in the sum of $4,452.42, whicli bond was conditioned as follows: “Whereas, the above bounden First National Bank of Anniston has this day prayed for and obtained an attachment against the estate of said A. D. Cheney for the sum…

Tried before the Hon. Jajíes W. Lapsléy. This 'was an’ action brought' by'the First National Bank bf the’ city óf Anniston,' against the appéllant, Mrs. R.'Lippman and counted upon a promissory note,' which was made’payable to the First National .Bank. The note contained a waivér of exemptions' and was sighed (iR. Lippman, pro; Marcus.Lippman.” The action was commenced by .writ bf attachment' issued‘out of the city court 'of Anniston.

Heard before the Hon. Jeee N. Williams. ■ - The bill in this case was hied by the appellee against •the appellants. The purpose of the bill and the facts of the case are sufficiently stated in the opinion.

Tried before the Hon. W. W. Wilicekson. This action was brought by the appellant, John M. Haran, against the appellees, James A. Stratton, T. T. Hillman and George L. Morris, to recover damages for the breach of covenants of warranty contained in several deeds to real estate.

Tried before the Hon. H. A. Sharpe. This action was brought by the appellant, William E. Watkins, against the appellee, the Birmingham Bail-way & Electric Company, and sought to recover damages for personal injuries, alleged to have been caused by reason of the defendant’s negligence. The cause was tried upon issue joined upon the plea of the general issue and the plea of contributory negligence. The facts of the case are sufficiently stated in the opinion.

Heard before the Hon. Thomas Cobbs. The appellant, Henrietta A. Lindsay, opened negotiations with the United States Savings, Loan & Building Company, a building and loan corporation of St. Paul, Minnesota, for the purpose of securing a loan from said company, and on May 17th, 1890, the negotiations were completed, and Henrietta A. Lindsay subscribed for fifty shares of stock in said company and executed to it the following note : “St. Paul, Minn., May 27, 1890. $2,500.00.

Tried before Hon. John H. Risque. This was an action on the case, brought by the appellants against the appellees to recover damages for the purchase by the defendants of property on which the plaintiffs had a lien.

Tried before the Hon. H. C. Speake. Oscar Goldsmith, the appellant in the present case, was convicted in the Mayor’s court of the city of Huntsville for carrying on the business of a merchant in the-said city without taking out a license as required by the municipal ordinance. On appeal to the circuit court, the cause was tried by the court without the intervention of a jury.

Tried before the Hon. Samuel E. Greene. The appellant was convicted of violating 1 ‘An ordinance to prescribe and fix licenses for the businesses, occupations and professions in Birmingham, Ala., for the year 1896.’' On the trial of the defendant in the criminal court of Jefferson county it was shown that the defendant gave in and was assessed for city taxes on a stock of goods to the amount of $18,000, on which was levied taxes of one-half of 1 per cent., the full amount…

Tried before the Hon. J. A. Bilbro. This was an action of debt brought by the appellant, T. H. Higdon, against the appellee, J. C. Kennemer, to recover the statutory penalty for cutting trees on the lands of another without the consent of the owner. The defendant filed a plea in answer to the complaint, in which he averred that he is not guilty of the matters alleged in the complaint.

Heard before the Hon. ¥m. H. Simpson. The facts of the case are sufficiently stated in the opinion. The proper remedy to protect and establish aright of way is by bill in equity and injunction. Lide v. Hadley, 36 Ala. 635 ; Burden v. Stein, 27 Ala. 104 ; Wharton v. Hannon, 101 Ala. 554. Ten years adverse user of a right of way will give a right by prescription by analogy to the statute of limitation of ten years. — Richard v. Williams, 7 Wheaton (U. S.) 59 ; 19 Am. and Eng.

Tried before the Hon. Thomas R. Roulhac. This was a suit brought by the'appellees, H. E. Mixon and others, against the appellants, The George F. Dittman Boot & Shoe Company, to recover the statutory penalty for the failure of the defendant, after the payment of the mortgage debt, to enter satisfaction thereof on the record of the mortgage after having been requested in writing so to do. The action was commenced by an attachment sued out by the plaintiffs.

Tried before the Hon. Thomas Cobbs. On 3d day of April, 1895, Mrs.N. M. Lamkin, the appellee, filed the bill of complaint in this cause against the appellant, Harvey J. Gravlee, to declare and enforce a trust lien or equitable charge on the lands described in the bill for the sum of $648, evidenced by a promissory waive note or bond executed by defendant and his wife, N. N. Gravlee, to complainant, on the 6th day of April, 1893, due 3d day of February, 1894.

Tried before the Hon. A. T. Borders, Special Judge. This was a statutory action of ejectment, brought by the appellees, W. H. Andrews and L. E. Andrews, as executor and executrix of the last will and testament of William Andrews, deceased, against one John Collier. Upon the suggestion that the defendant Collier was in possession as the tenant of L. A. Russell, the latter was made a party defendant. The case was submitted for trial upon an agreed statement of facts.

Tried before the Hon. J. M. Carmichael. Action by W. P. Windham against the Central of Georgia Railway Company to recover damages for injury to plaintiff’s property and to the health of his family, alleged to have been caused by the negligence of the defendant in the construction of its roadway along and by the side of plaintiff’s property. The cause was tried upon the plea of the general issue.

Tried before the Hon. J. J. Banks. This action was brought by the appellee, J. W. Smith, against D. C. Compton and F. M. Compton, partners doing business under the style of D. C. Compton & F. M. Compton.” The complaint counted upon promissory notes executed by defendants.

Heard before the Hon. Jebe N. Williams. The bill in this case was filed by the appellant, William L. Tillman,.against David J. Murrell and his wife, S. J. Murrell, and W. W. Maples and C. T. May; and sought to enforce upon certain described lands the lien of a registered judgment recovered by the complainant against David J. Murrell, and to have cancelled as a cloud on the title a conveyance from said Murrell to the defendants, Maples and May.

Tried before the Hon. John O. Anderson. These two causes involve the same lands, were tried upon, the' same facts, similar judgments were rendered in each, and they are, therefore, submitted together on appeal. Each case is a statutory action of ejectment brought against William Richardson for the recovery of certain lands specifically described in the complaint; the lands sued for in each case being identical.

<p>Appeal from tbe Chancery Court of Pike.</p> <p>Heard before the Hon. Jere N. Williams.</p> <p>The facts of the case are sufficiently stated in the opinion.</p> <p>cited; Tyson v. Brown, 64 Ala. 244 ; 68 Ala. 98 ; 69 Ala. 598 ; 70 Ala. 377 ; Preston v '. McMillan, 58 Ala. 84 ; Code of 1886, § 1845 ; Patton v. Beecher, 62 Ala. 579 ; Chapman v. Abrahams, 61 Ala. 108 ; Simmons v. Walker, 18 Ala. 664.</p> <p>cited, Dooly v. Villalonga, 61 Ala. 129 ; Enuinv. Ferguson, 5 Ala. 158 ; 24 Amer. and Eng. Ency. of Law, 290, “Conventional Subrogation” and 294, note, “Subrogation to Vendor’s Lien Sheldon on Subrogation, 19 p. 28 and 247-8, p. 371; 57 Ala. 435 ; Bolman v. Lohman, 74 Ala. 507.</p>

Tried before the Hon. J. A. Bilbro. This action'was brought by the appellee, J. F. Slaton, against the Alabama State Land Company. As originally filed, the complaint contained two counts in trespass, each count claiming damages for the wrongful taking of certain cross-ties and switch-ties. A demurrer having been sustained to the second count of the complaint, the plaintiff amended it by substituting therefor a count in case-, the substance of which is stated in the opinion.

Heard before the Hon. Geo.E. Brewer. This was a statutory real action in the nature of ejectment, brought by the appellee, Ida W. Vary, against the appellants, Ed Cobb and others, to recover a certain lot in the city of Anniston, Ala. The lot was sold fox-taxes on the 29th day of June, 1892, and was bid in for the State of Alabama at the tax sale.

Tried before the Hon. John H. Disque. The appellant, Lum Evans, was tried under an indictment which charged him with the murder of Parker Rowe by cutting him with a knife, was convicted of 'murder in the second degree, and sentenced to the penitentiary for twenty-three years. The facts necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

Tried before the Hon. John H. Disque. The appellant, Andy McLeroy, was jointly indicted with Columbus alias Lum Evans, for the murder of Parker Rowe, and upon a severance being granted, the appellant was tried separately; was convicted of murder in the second degree, and sentenced to the penitentiary for ten years. The defendant filed a plea in abatement to the indictment, in which he alleged that the indictment should be abated on the following grounds : ' 1.

Tried before the Hon. J. W. Foster. The appellant, Major Terry, was tried under an indictment which charged him with unlawfully and with malice aforethought killing “Mary Thomas by striking her with some weapon to the grand jury unknown,” was convicted of murder in the first degree and sentenced to be hanged. When the cause was called for trial, the appellant made application to the court for a change of venue.

Tried before the Hon. James J. Banks. The appellant, - John Linnehau, was indicted and tried for murder, was convicted of manslaughter in the second degree, and sentenced to hard labor for the county for one year.' The evidence introduced by the State tended to show that in Walker county, Alabama, before the finding of the indictment, the' defendant, John Linnehan, killed Allen Oakley by shooting him with a pistol, and then tended to show that the killing was done under the…

Tried before the Hon. J. M. Carmichael. .The appellant was indicted and tried for the murder of Jim McSwain, was convicted of murder in the first degree and sentenced to be hung.

Tried before the Hon. A. D. Sayre. The appellants, Richard Jones and Tom Freeman, were jointly indicted with Sam Jones for the murder of William Plenry Durden. On motion of the defendants, Richard Jones and Tom Freeman, they were granted a severance from Sam Jones and were jointly tried.

Tried before the Hon. J. A. Bilbro. The appellant, Albert Teague, was indicted and tried for the murder of Walter Clark, by shooting him with a gun, was convicted of murder in the second degree, and sentenced to the penitentiary for thirty-five years'.

Tried before the Hon. James J. Banks. The appellant, John Henson, was indicted and tried for manslaughter for the killing of one Dan Hall, was convicted of manslaughter in the first degree, and sentenced to hard labor for the county for one year.

Tried before the Hon. George E. Brewer. The appellant, Jasper Nabors, was tried under the following indictment: “The grand jury of said county charge'that before the finding of this indictment that Jasper Nabors, alias Jap Nabors, unlawfully and with malice aforethought, killed A. B. Payne, alias Bent Payne, by shooting him with a gun. “The grand jury of said county further charge that before the finding of this indictment Jasper Nabors, alias Jap Nabors, unlawfully and with…

Tried before the Hon. J. W. Poster. The appellant was tried and convicted under the following indictment: “The grand jury of said county charge that before the finding of this indictment that Joe King did assault Minnie Douglass, a girl under the age of ten years, with the intent forcibly to ravish her, against the peace and dignity of the State of Alabama.” The defendant demurred to the indictment upon the ground that the charge contained therein was unwarranted by statute…

Tried before the Hon. A. D. Sayre. The appellant, John Ellis, was indicted, tried and convicted for an assault with intent to murder, and was sentenced to the penitentiary for three years.

Tried before the Hon. A. D. Sayre. ' The appellant, Lem Lewis, was indicted, tried and convicted for an assault with intent to murder, and sentenced to the penitentiary for two years. On the trial of the case, the defendant introduced evidence tending to show that the assault, which was proven by the State’s evidence, was committed in self-defense.

Tried before the Hon. A. D. Sayre. The appellant, William Brown, was tried under the following indictment: “The grand jury of said county charge that before the finding of this indictment, William Brown feloniously took one two dollar United States Treasury note and thirteen dollars in the silver ‘ coin of the United States, a further description of which is to the grand jury unknown, the property of Jasper Hicks, from his person, and against his will by violence to his…

Tried before the Hon. A. D. Sayre. The appellant, George Spear, was indicted, tried and convicted for resisting officers in the execution of a writ of arrest. On the trial of the case, the State introduced two deputy sheriffs, who testified to their going to the house of the defendant with a writ of arrest and seeking to execute it, and that thereupon the defendant presented a pistol at them, and demanded that they leave his house.

<p>Appeal from the City Court of Montgomery.</p> <p>Tried before the Hon. A. D. Sayre.</p> <p>The facts of the case are sufficiently stated in the opinion.</p> <p>cited Reesev. State, 90 Ala. 627.</p>

Tried before the Hon. W. L. Parks, Special Judge. The appellant was indicted, tried and convicted of forgery, and sentenced to the penitentiary for five years. The instrument alleged to have been forged is copied in the opinion.

Tried before the Hon. G. K. Miller. The indictment under which the defendant was tried contained two counts. The first count chai’ged the defendant with an assault with intent to murder one Frank Noble. The second count charged the defendant with assault with intent to murder Effie McKibbon.

Appeal'from the Circuit- Court of Lawrence. Tried before the Hon. Ti-iomas R. Roulhac. The appellants, Hollis Scoggins and Chassie Scoggins, were indicted, tried and convicted for an assault upon one Gabe Chilcoat, with a pistol, with the intent to murder, and were sentenced to the penitentiary for four years. .

Tried before the Hon. James W. Lapsley. The appellant, John Maxwell, was indicted,-tried and convicted under a local act making it unlawful to sel-1, give away or otherwise dispose of -spiritous* vinous or malt liquors in Calhoun county. There was no conflict in the evidence, there being but one witness examined, and his testimony is'stated in the opinion. cited Amos v. State, 73'Ala. 498 ; Roberson v. State, 100 Ala. 37. cited Acts of 1896-97, p. 683 ; Crim.

Tried before the Hon. A. D. Sayre. The appellant was tried and convicted under the following indictment“The grand jury charge that before the finding of this indictment Ed Swansan alias Ed Swanson did unlawfully overdrive or cruelly kill a certain domestic animal, to-wit, one horse, the personal property of John W. Powell. “The grand jury of said county further charge that before the finding of this indictment Ed Swansan alias Ed Swanson, unlawfully or wantonly killed a…

Tried before the Hon. H. C. Speake. The appellant, Zeke Brown, was indicted and convicted for the larceny of a cow, the personal property of one James Ginn. The defendant pleaded two special pleas, in which he set up former jeopardy, in that he had been tried and convicted before a justice of the peace for the same offense. To each of these pleas the State filed separate demurrers, the substance of which is stated in the opinion.

Tried before the Hon. J. M. Oakmichael. The appellant, Jordan Sims', was tried under an indictment charging him in two separate counts with burglary and grand larceny, was convicted of burglary and sentenced to the penitentiary for two and one-half years.

Tried before the Hon. Edward A. Graham, Special Judge. The appellant, Walter Jones, was indicted and tried for an assault with intent to murder, was convicted of an assault, and battery, and fined two hundred and fifty dollars. On the trial of the case, the evidence for the State tended to show that the defendant shot one Young with a pistol, and that the defendant was at fault in bringing on the difficulty.

<p> Indictment for Carrying Concealed Weapons. </p> <p>1. Proof of venue; general affirmative charge. —In a criminal case, when the bill of exceptions purports to set out all the evidence, and does not show that the venue was proved, the defendant is entitled to the general affirmative charge in his favor; and its refusal is reversible error.</p> <p>2. Trial and its incidents; permitting witness placed under rule to testify within the discretion of the trial court. —It is within the sound discretion of the trial court to permij: one who, after having been put under the rule, remained within the hearing of the trial, to testify as a witness therein ; and the exercise of this discretion is not reviewable on appeal.</p>

Tried before the Hon. J. W. Mabry. The appellant was indicted, tried and convicted under the following indictment: “The grand jury of said county charge that before the finding of this indictment, Willie Burden, alias William Burden, with intent to injure or defraud, did falsely make, alter, forge or counterfeit an instrument in writing in words and figures substantially as follows, to-wit: ‘Selma, Ala., Nov. 11th, 1897. Mr. Holmes, Selma, Ala.

Tried before the Hon. E. B. Wilkerson. The appellant was tried and convicted under the following-indictment: “The grand jury of said county charge that before the finding of this indictment Sam Marshal did intentionally assist Gus Raimer, a prisoner lawfully confined in the county jail of Pike county, on a charge of a misdemeanor, to escape therefrom by drilling or prizing out a hole through the walls of said jail, against the peace and dignity of the State of Alabama.” To…

Tried before the Hon. J. M. Carmichael. The facts of the case are sufficiently stated in the opinion. cited Mosby v. State, 98 Ala. 50; Mays v. State, 89 Ala. 37. cited Dentler v. State, 112 Ala. 71; Bell v. State, 100 Ala. 78.

Tried before the Hon. D. R. McMillan. The appellants in this case were- prosecuted and convicted for trespass after warning.

Heard before the Hon. A. D. Sayre. The State, on the relation of W. H. Roney, as clerk of the circuit court of Macon county, filed the petition in this case, addressed to the judge of the city court of Montgomery, in which it was prayed that a writ of mandamus be issued requiring S. B. Trapp, as President of the Board of Inspectors of Convicts, to request the Auditor in writing to draw his warrant on the State Treasurer for the payment of the bill of costs, which was…

Heard before the Hon. James J. Banks. The Birmingham Building & Loan Association gave in its property for taxes to the tax assessor of Jefferson county for the year 1896, within the time prescribed by law.

Tried before the Hon. J. M. Carmichael. The appeal in this case is prosecuted by S. J. McKissack and B. L. McKissack from a judgment rendered against them in favor of the appellee. The facts necessary to an understanding of the decision on this appeal are sufficiently stated in the opinion. The appellants jointly assigned as error the several rulings of the trial court upon the pleadings ; but there is contained in the transcript no formal judgment entry of the trial court.

Heard before the Hon. James It. Dowdell. The bill in this case was filed by Walter E. Merrell, as the assignee of a note from Green Merrell, given by W. R. Carter to said Green Merrell, for the price in part of lands described in the bill, alleged to have been sold by Green Merrell to him, to enforce a vendor's lien in favor of the complainant as assignee of said note, against said Carter and the other defendants, Ed. T. Witherby, Homer It. Stoughton and James B. Goodwin.

Tried before the Hon. J. A. Bilbro. This was an action brought by the appellees, Nabors, Morrow & Sinnige, against the appellant, A. T. Dan-forth ; and counted on a promissory note. The defendant filed a plea to which the plaintiff filed a replication. To this replication the defendant filed a rejoinder. The substance of these pleadings are sufficiently stated in the opinion. The plaintiff démurred to the rejoinder upon the ground that it was no answer to the replication.

This was an original application filed in this court asking for the issuance of a writ of mandamus, addressed to A. A. Coleman, Judge of the Tenth Judicial Circuit, re'quiring him to enter judgment by default in favor of the petitioner. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. J. A. Bilbro . ■ ! .'This was a statutory action of ejectment brought by the appellee, Mary P.' Johnson, against the appellant, F. P. Donehoo, to recover a certain tract of land specifically described in the complaint. The facts of the case necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion. There were verdict and judgment for the plaintiff.

Tried before the Hon. J. W. Foster. This action was brought by the appellee, E. C. Savage, against the appellants, H. C. Thornton & Company, and counted upon a contract which is copied in the opinion. The tendencies of the evidence on the part of the plaintiffs and the defendants are sufficiently stated in the opinion.

Tried before the Hon. George E. Brewer. The appellee, M. A. King, brought an action of detinue against Z. J. Robertson and J. W. Lambert, for the recovery of certain specifically described property. The suit was originally commenced in a justice of the peace court, and upon judgment being rendered for the plaintiff the defendants took an appeal to the circuit court, giving an appeal bond upon which W. H. Lindsey and G. W. Wager were sureties.

Tried before the Hon. S. H. Sprott. This was an action brought by J. J. Hamner, the appellee, against Milton M. Elrod and the sureties on his official bond as constable. The substance of the two counts contained in the complaint are sufficiently stated in the opinion. To the 1st and 2d counts of the complaint the defendant demurred upon the following grounds : “1.

Heard before the Hon. Jere N. Williams. The bill in this case was filed by the appellant, E. D.' Thames, against the appellees, Schloss & Kahn, the Alabama Mercantile Company and F. H. Thames and others. The facts of the case are sufficiently stated in opinion. Schloss & Kahn, The Alabama Mercantile Company and F. H. Thames made a motion to dismiss the bill for the want of equity.

Heard before the Hon. William H. Tayloe.- The facts of the case are sufficiently stated in the opinion. The will involved in this controversy created an estate in lands in remainder and was, therefore, a recordable instrument under our statute. — Code of 1886, § 1813. This being so, the mortgagee of the life tenant was bound by such registration. — Code of .1886, § 1797. If the law authorized the registration of said will, the recording operated as notice to the world.

Henry Goldthwaite instituted a suit in the circuit court of Mobile county, against John Wilson, Jr., Cora Lawrence and Virginia Wilson, “as executor and executrices of John Wilson, acting in his capacity and under the name of John' Wilson, doing business under that name.” The suit was commenced by an attachment, sued out on the ground that the defendants were nonresidents.

Appeal'from the Circuit Court of Bullock; ' Tried before the Hon. J. M. Carmichael. An action for the recovery of personal chattels in specie was commenced by the' appellant, C. J. Cade, against Joe Hamilton in the circuit court of Bullock county, .on the 17th April, 1893.

■Appeal from the Circuit Court of Heury. Tried before the Hon. J. W. Foster.

Heard before the Hon. Jere N. Williams. The bill in this case was filed by the appellee against the appellant. The facts of the case are sufficiently stated in the opinion. Upon the final submission of the cause, on the pleadings and proof, the chancellor decreed that the complainant was entitled to the relief prayed for and ordered accordingly. From this decree the defendant appeals, and assigns the rendition thereof as error.

Heard before the Hon. PI. C. Speake. The appellee, W. R. Francis, filed his application, addressed to the Judge of the Eighth Judicial Circuit, asking for the issuance of a writ of mandamus to the appellant, J. D. Wyker, as treasurer of the city of Decatur, commanding him to pay certain, claims against the city which the petitioner owned and had presented for payment. The substance of the facts averred in the petition are sufficiently set forth in the opinion.

Tried before the Hon. John H. Disqjje. . This was a common law action of ejectment brought by the appellee, H. Herzberg, against the appellant, W. W. McCarver, to recover certain lands specifically described in the declaration. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. H. A. Sharpe. This action was brought by the appellee against the Highland' Avenue & Belt Railroad Company, for the recovery of damages for personal injuries, alleged to have been sustained by the plaintiff while he was in- the employment of the defendant as brakeman. The complaint contained three counts. The court gave the general affirmative charge for the defendant as to the second count.

Tried before the Hon. H. C. Speake. This was an action brought by the appellees, Hall & Brother, against the appellant, the Western Assurance Company of Toronto ; and counted in the statutory form upon a fire insurance policy, seeking to recover the loss sustained by fire, of certain articles included in the policy. The defendant filed several pleas, the substance of which is stated in the opinion.

Tried before the Hon. William S. Anderson. This action was brought against the Wagar Lumber Co. by “M. R. Sullivan and F. W. Sullivan, as partners doing business under the firm name of Sullivan Lumber Company;” and sought to recover damages for the breach of a logging contract made by the defendant with one E. O. Sullivan and which contract it was alleged was, with the consent of the defendant, assigned to the plaintiffs.

Heard before the Hon. S. K. McSpadden. The facts of the case are sufficiently stated in the opinion. From the final decree of the chancellor, which is referred to in the opinion, the respondent in the case of Motley, surviving partner, &c., v. M. K. Clements, appealed, and the complainants in the case of B. A. & Tempey Clements v. John D. Motley, surviving partner, appealed.

Tried before the Hou'. George E. Brewer. This action was brought by the appellee, J. B. Adams, against the appellant, the Pullman Palace Car Company, to recover one hundred and fifty dollars damages for the alleged loss of the plaintiff's pocket-book containing twenty-five dollars in money and a diamond ring, The complaint contained three counts. The first count was stricken from the complaint by the plaintiff. The second and third counts were as-follows: “Count 2.

Tried before the Hon. H. C. Speake. This was a statutory action of ejectment, brought by the appellees against the appell ant, to recover a certain tract of land specifically described in the complaint. The tract of land sued for was used by the defendant as its right of way. The suit was • instituted on July'9, 1895.

Tried before the Hon. H. C. Speake. This action was brought by the appellee, John W. Guyer, against the appellant, R. H. Samples. The facts of the case pertaining to the rulings of the court reviewed on the present appeal, are sufficiently stated in the opinion. There was judgment for the plaintiff. The defendant appeals, and assigns as error, among other rulings of the trial court, the overruling of the demurrers to the plaintiff ’s replications to defendant’s special pleas.

Tried before the Hon. John W. Bishop. This action was brought by the appellee, J. S. McCants, against the appellant, the Southern Building & Loan Association, to recover the statutory penalty of two hundred dollars, for failure to satisfy on the margin of the record of a deed of trust executed by the plaintiff and his wife to secure the indebtedness of plaintiff to the defendant, after having been requested by the plaintiff, in writing to do so.

Tried before the Hon. O. J. Semmes. This action was brought by the City of Mobile, the appellee, against the appellant, Joseph Kentz.

Clair. Tried before the Hon. George E. Brewer. This was an action brought by the appellee, J. B. Harvey, against W. W. Perkins. The facts of the case pertaining to the rulings of the trial court reviewed on the present appeal, are sufficiently stated in the opinion. Upon the hearing of all the evidence the court at the request of the plaintiff gave the general affirmative charge in his behalf. To the giving of this charge the defendant duly excepted.

Heard before the Hon. W. J. Hilliard. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. H. C. Speake. This action was brought by the appellant, Lula Orr, against the Traveler’s Insurance Company, and counted upon a policy of accident insurance, issued by the defendant to one Jackson Orr, in which the plaintiff was named as the beneficiary. The clause or provision of the policy which is the ground of the defense, is copied in the opinion. The substance of the pleadings and the demurrer thereto are sufficiently stated in the opinion.

Tried before the Hon. John H. Disque. This action was brought by the appellant, Mrs. A. G. Thornton, against the appellee, the Dwight Manufacturing Company; and sought to recover damages resulting to the plaintiff in the purchase of a certain quantity of lumber by the defendant from one C. M. Davis.