Volume 121 — Alabama Reports

Tried before tire Hon.' A. D. Sanee. Lorenzo Lewis was indicted for assault with intent to murder ,and was convicted of assault and battery.

Tried before tbe Hon. O. J. Semmes. Tbe facts are stated in tbe opinion. submitted tbe following authorities to show that a mere assault and battery will not authorize tbe submission to a jury of', .the question, of intent in tbe case of an assault to rápe. — T'óulet v. The State, 100 Ala. 72; Charles v. Thé State, 6 English, 389; Sanford v. The State, 12 Tex. Ct. Appeals, 196; Jones v. The State, 90 Ala. 628.

Appeal' froiu City Coutt of Mobile. • . ’’ Tripcl before the Iíón. O. J. Skmmes. Géáie Brown was convicted of asault with, intent to ravish! Ora Sayelle, the female on whom the assault was alleged to'have been committed, was the only witness vho testified to the facts.

■ Tried before tbe Hon. N. D. Denson. Virge Handy was indicted as shown in the opinion. He moved to quash the venire because a list of jurors served on him as required by the statute was not signed by the sheriff. The defendant asked two charges.

Tried before the Hon. H. C. Speaks. The facts sufficiently appear in the opinion. --Evi-. dence of general bad character of defendant was improper. — McElvey on Ev., §109; Brown v. The State, 46 Ala. 184; Danner v. The State, 54 Ala. 127; Little v. The State, 58 Ala. 265. (2). There was no legal proof that defendant had procured as much as $25.00 worth of goods. — McDonald v. Games, 90 Ala. 148; Hart v. Kendall, 82 Ala. 147.

Tried before the Hon. O. J. Semmes. Willis McLellan was indicted for the larceny of two ■sacks of twine from a store. On the trial the proof was that the twine when taken from the store was not in sacks. The defendant refused to consent that the indictment be amended and he was held to answer a new indictment.

Tried before the Hon. A. D. Sayre. Jack Howard was indicted and convicted of resisting an officer in attempting to arrest him under a warrant or writ of arrest issued by a justice of the peace. The opinion states the case. cited, Brotan v. State, 109 Ala. 87; Notes v. State, 24 Ala. 672; Withers v. State, 23 So. Rep., 147; Crumpton v. Newman, 12 Ala. 199; Duckworth v. Johnson, 7 Ala. 578. cited, Am. & Eng. Ency. of Law, Breach of Peace, pp. 513-5.19; 2 McClain’s Crim.

<p> Indictment for Selling Liquor without License. </p> <p>1. Selling liquor without license; ownership of liquor need not he in seller. — Under a special statute making the sale o£ spirituous, vinous or malt liquors a misdemeanor, the actual ownership of the liquor sold is immaterial; a sale which passes title to the liquor as between the parties to the contract is within its terms.</p> <p>2. General charge; when proper to he given for the State. — The general charge may be given at the request of the State in a criminal case, but to give it is of doubtful propriety, and it should never -be given where there is any evidence upon which a verdict of acquittal could be based, or where the facts in evidence pointing to guilt rest in inference only-.</p> <p>3. To recall the jury after their retirement, for the purpose of giving further instructions is within the discretion of the court-.</p>

Tried before the Hon. O. J. Semmes. George Benjamin was tried and convicted of manslaughter in the second degree. He moved in arrest of judgment on the ground that the indictment did not allege negligence, or carelessness in the killing; and did not charge any offense. cited, Martin & Flinn v. State, 29 Ala. 30; Fitzgerald v. State, 112 Ala. 34; Harrington v. State, 83 Ala. 9. cited, J enhins v. State, 82 Ala. 25; J ohnson v. State, 105 Ala. 4.

<p> Indictment for Doing Business without License. </p> <p>1. License tax on auctioneers, constitutional.• — The act of the Legislature imposing license, tax on auctioneers in amounts varying according to the population of the cities and towns where they do business, is not unconstitutional.</p> <p>2. Amending an Act, when not void. — An Act amending the revenue laws is not void because amendments thereto adopted by the senate in its passage, were not passed by the house of representatives by an aye and nay vote of the majority of the house.</p> <p>- 3. Misprision which corrects itself. — When the journal of the house of representatives recites that the speaker signed certain bills ■ “whose titles are set out in the foregoing message from the Senate,”- and it is made to appear' that no Senate message requesting the Speaker to sign bills was before the House .when the Speaker is stated in the journal to have signed the bills, whose titles are set out in the foregoing message from the Senate, but that there had been such Senate message before the House j.pst before the report of the committee' .on enrolled bills was presented, and it had been disposed of, and that afterwards the report of the committee on enrolled bills was presented and acted on, and that in it and in it alone were set out the titles of the only bills then before the house for the signature of the speaker, and that it contained, among others, a particular bill, the words “message from the Senate” was patently a misprision as to that bill, which corrects itself on the face of the journal, and the entry is to be read “report of committee on enrolled bills.”</p>

Tried before the Hon. William S. Anderson. The defendant was tried for larceny. It appeared from the evidence that the property taken, a gun, was taken by the defendant openly in the presence of the owner and others.

Tried before the Hon. Thomas R. Roulitac. ‘ - . Quinn was tried and convicted of bastardy before a-justice of the peace. He appealed to the Circuit Court and the jury returned a verdict of guilty against him. But no judgment was rendered on said verdict.- Defendant moved in arrest of judgment, which motion was overruled, and he appeals.

Tried before Hon. N. H. Thompson. The following are the charges requested by the defendant. 1. “If the jury believe that the defendant parted with the whiskey in any other way besides selling it, they must acquit the defendant.” 2. “Unless the jury believe the defendant sold the whiskey, and did not'exchange, barter or loan it, they must find him not guilty.” 3.' “If the jury believe it was a conditional sale, unless the conditions of sale have been complied with there was…

Tried before the Hon. John W. Mabry. Claud M. Vaughan and Roy Vaughan were arrested and had preliminary trial before a justice of the peace on the charge of murder. They were bound over to answer indictment in the circuit court, but were allowed hail. Afterwards and while they were at large on hail bond, complaint was made before another justice of the peace, charging them with the sam.e offence for which they were under bond.

Tried before Hon. A. D. Sayre. Robert McFarland was arrested on a complaint charging him with larceny from the person, of a gold watch of the value of $10.00. On preliminary hearing had before the recorder of the City of Montgomery, he was bound over to the City Court ,of Montgomery to answer an indictment for grand larceny.

Tried before the Hon. H. A. Si-iarpe. J. N. Campbell and Eliza Reevers, as the administrators of Henry Reevers, sued the Bessemer Land & Improvement Co. for damages for the death of the latter, caused, as alleged, by the negligence of the company. The pleas were the general issue and contributory negligence. The latter defense ivas presented in different forms by several distinct pleas; but the pleadings and rulings thereon are fully stated in the opinion.

Heard before the Hon. W. W. Wilkerson. The bill’in this cause was filed by Samuel D. Weakley as the administrator of Joseph P. Mudd, deceased, and sought a settlement of the accounts of William A. Walker, as the executor of William S. Mudd, deceased, and a distribution of the estate of his testator. William A. Walker, the devisees and legatees under the will of William S. Mudd, and the minor children of Jos. P. Mudd, were made defendants.

Heard before tbe Hon. J. E. Dowdell. F. E. Langley and W. T. Langley, as administrators of John J. Slaughter, deceased, obtained from the probate court of Tallapoosa county an order to sell lands of the estate. The terras of sale were one-half cash and the balance of purchase money at twelve months. W. T. Langley having become the purchaser of a part of the lands, executed his promissory note to his co-administrator for the deferred payment, but did not make the cash payment.

Tried before the Hon. J. W. Mabry. John Smiley died in the year 1849, leaving a last will and testament. He devised certain land on “Bogue Chitto” in Dallas county, “to his daughter, Nancy C. Bender, for life, with the remainder to her children, to go, however, into the hands of trustees named. It is also provided in the will that, with the consent of “either of my daughters” the trustees may sell the land devised to her.

Tried before the Hon. J. C. Anderson. Michael & Lyons obtained a judgment in the City Court of Mobile against the Monroe Mill Co. and caused execution to issue thereon without order of court on the day following its rendition and in term time, and to be levied on certain property as the property of the company.

IIear ' The facts of this case are fully stated-in the opinion. — Complainants had a plain and adequate remedy qt' law. — Gahaelan A Monroe, Smaltz & Go., 56 Ala. 303; Hall v. Griffin, 24 So. Rep., 27; Espy v'. Oomer, 76 Ala. 501; Patev.

Tried before the Hon. H. A. Sharpe. Mrs. C. E. Lewis sold to the Ensíey Lumber Co. certain machinery for the purchase money of which notes were executed, in which notes the title to the property sold was retained by Mrs. L. until the purchase money was fully paid. By direction of the Lumber Co. the property was shipped to the State of Georgia.

Heard before the Hon. Thomas Cobbs. The facts in this case are stated in the opinion. contended, that the deeds and mortgages executed by William Wood and wifé to the several grantees were for indebtedness prior to the indebtedness of Wood and son to any of the ap-pellees becoming due; that these claims'of the grantees and mortgagees were valid and subsisting and bona'fide; that they did not participate in any fraudulent intent even if such intent existed in the mind of…

■ Tried before tbe Hon. S. J. Banks. Lizzie McElroy brought suit in detinue for one bale of cotton: She became possessed of tbe warehouse receipt for tbe cotton for a valuable consideration, and ■without knowledge of tbe manner in which her trans-ferror obtained it. Tbe defendant in the suit suggested that A. P. Danforth claim tbe cotton sued for.

' Appeal from tbe City Court of Montgomery. Tried before tbe Hon. A. D. Sayre. This is a creditor’s bill. It alleges that Seligman purchased goods of complainants to a considerable amount which is unpaid; that he being in failing circumstances and in contemplation of insolvency procured attachments to issue in favor of Levoir and the Merchants & Planters Nat.

Tried before the Hon. Geo. W. Brewer. Mary A. Jones, as administratrix of John Jones, sued to recover of the Alabama Midland Railroad Company damages for the death of her intestate, caused, as alleged, by the negligence of the defendant. The plea of contributory negligence was interposed.

Tried before tbe Hon. James J. Basils. Mollie. James, as administratrix of Louis H. James, sued tbe Birmingham Railway & Electric Company for damage for tbe death of her husband and intestate, caused by injuries resulting, as alleged, from tbe negligence of the agents of tbe company.

Heard before Hon. A. D. Sayre. Josiah Morris & Oo. brought this bill as judgment creditors of Michael Burke.

Tried before the Hon. A. D. Sayre. Bill of Lucy W. Lahey and Sallie G. W. Farrington against the Montgomery Light Co. and others. Motion to dismiss for want of equity and demurrers to the bill were overruled. The defendants appealed from this decree. The 7th and 8th grounds of demurrer interposed by the defendants to the bill are: 7th.

Tried before the Hon. W. W. Wilkerson. This was a suit by Mary L. A. Williams against the Triple Link Mutual Indemnity Association on a policy of insurance issued against the life of Chas. G:! Williams, the husband of plaintiff. The facts averred in the pleadings and which there was evidence tending to support were that, the deceased was the foreman- of a switch, engine crew in the yard of a railroad company.

' Heard before tbe Hon. W. H. Simpson, Josephine Brown brought her bill against Laura O. Ezzell to reform a deed executed to complainant by her husbánd and to enjoin action at law by defendant to recover tbe land. Tbe defendant answered admitting tbe facts stated in tbe bill; but filed a cross-bill averring that she was a creditor of complainant’s husband prior to tbe execution of tbe deed, and that tbe consideration recited in it was fictitious.

Tried before John D. Burnett, Esq., Special Judge. Mrs. Orrie A. Cobb departed this life leaving, a last will and testament with John M. Cobb named-as executor. Bond of executor was waived. John M. Cobb qualified and took-charge of the estate; and while, he was so .acting as executor, J. F. Betts, -a creditor of the estate, filed his petition in the probate court of Conecuh county, where the administration was pending praying- that the said executor be required to make bond.

: Tried before Hon. H. A. Sharpe. Jacob Shorter, while engaged in coupling cars as an employé of the Southern Railway, Co., went between the cars for that purpose while one of them was in motion. Rule “L” of the company prohibited this. The company also furnished coupling sticks by the use of which danger from the act of coupling was prevented or greatly reduced. The deceased was on the moving car as it approached the other at a considerable speed.

Tried before tbe Hon. E. H. Cabaniss, Special Judge. James Odom, Sr., brought suit against Carter and others as tbe endorsers of a promissory note. The making and endorsing of the note were at the same time and as one transaction.. It was given to pay an antecedent debt for money loaned by Odom to the makers of the note. There were certain demurrers interposed and ruled on, but they need no notice, as they are not referred to in the opinion.

Heard before the Hon. Thos. Cobbs. On the 27th day of February, 1895, the Birmingham Water Works Company issued a certificate of stock to Mrs. B. C. Johnson, who was at the time the wife of J. T. Johnson, and lived with her husband in Tennessee. Mrs. Johnson indorsed the certificate by signing an. indorsement printed on the back of it, to the effect that she bargained, sold and assigned the said stock. The name of the transferee was not inserted.

Tried before the Hon. N. D. Denson. The Alabama Mineral Land Company sued Elihu E. Jackson and others on an alleged contract to purchase certain timber. The suit was discontinued as to all the defendants except Jackson. The writing on which the suit was brought and the other facts in the case, are fully set out in the opinion.

Appeal .from the Oircuit Court of Autauga. Tried before the Hon. N. D. Denson. Mrs. M. 0. Westbrook sued the Marbury Luniber Company, a corporation, to recover damages for injury to her son. The father of the son was dead and the son, a boy under fourteen years of age, was put by the company to work at a place about its mill which was alleged by the plaintiff to be dangerous, and while so engaged he was severely injured.

Heard before the Hon. W. W. Wilkerson. The bill in this case was brought by-Weingarten Bros, and others, as creditors against S. Marcus, Jr., the debtor, and others.

Heard before the Hon. J. R. Dowdell. Lola McQueen sued by bill in chancery to redeem certain lands sold under mortgage as the property of her father.

Tried before the Hon. H. C. Spjeake. . This action was brought by Sadie M. Bouldin as ad-ministratrix, to recover damages from the defendant for the death of her intestate. Richard M. Bouldin was killed while discharging the duties of switchman for the Louisville & Nashville R. R. Co. The evidence was conflicting as to the manner in which he came to his death. But in view of the matters dealt with in the opinion it is sufficient to state the following facts.

John C. Carmichael. The bill in this case alleges that tbe property -.conveyed by Belton Gilbreath to bis wife Julia and by her to tbe Gilbreath Coal and Iron Co. was in reality tbe property of Belton Gilbreath; that tbe pretended corporation was conceived in fraud and for tbe purpose of changing tbe title to the said property so as to remove it beyond tbe reach of tbe creditors of Belton Gilreath; that this purpose appeared from tbe fact, among others, that all tbe shares…

Heard before Hon. W. H. Tayloe. Louisa Hunter brought this bill against Bettie Turner Brown to cancel a deed which, as alleged in the complaint, the latter fraudulently procured the former to execute to her; and to sell the land embraced in the deed for division among the joint owners. The facts necessary to be stated are these: Eli Brown and Ohas. Jackson conveyed the land described in the bill to Lucinda Brown, Mollie Brown and Louisa Wilson.

Tried before the Hon. J. W. Foster. This was an action by the Bank of Dotban against R. A. Lytle & Co. on promissory notes. Lytle & Co. was a firm doing business in the State of Georgia. They employed one Newman as their general manager of a mercantile business at Dothan, in this State. There ivas evidence tending to show that 11. A. Lytle took Newman to the bank and told the cashier to let him have money when he needed it in’ carrying on tlie business.

Tried before the Hon. William S. Anderson. Henry H. Brown, as the administrator of Jas. L. Brown brought this suit to recover damages for the death of his intestate, caused by the negligence of the defendant, the Louisville & Nashville Railroad Co. There was a plea of contributory negligence. The following charge was given at the request of the plaintiff: “B” “The court charges the jury that even if Jas.

Tried before Hon. J. M. Carmichael. James C. McGill sued the Midland Company to recover damages, alleged by him to have been caused by the negligence of the company in running its train. Plea was the general issue. The evidence sufficiently appears in the opinion. There was verdict and judgment for the plaintiff.

Tried before the Hon. H. C. Speake. Sites K. Hine brought this action against the Louisville & Nashville Bailroad Co. claiming damages for being ejected from one of its trains. The facts concisely stated are these: In October, 1899, Hine applied to one Sherell, the agent of the defendant, at Athens, Ala., for a ticket and permit to ride on a freight train then near due to Decatur, Ala.

Tried before Hon. T. J. Burton. J. A. Hoagland and Jesse Hoagland made an agreement with Willet Ferris by tbe terms of which tbe latter was to take charge of and cultivate the vineyard of tbe former, and to market the crop and to receive compensation therefrom, and to keep the vineyard a second year if tbe proceeds of tbe crop of the first year were inadequate to pay him, and to return tbe surplus to tbe former.

Tried before the Hon. W. C. Robinson. The Columbus Water Works Company filed an application in tfie probate court of Lee county to condemn certain lands. The petition was in conformity to the statutes of this State. Demurrers were filed to the petition on various grounds but mainly because the peti- 1 tioner was a foreign corporation, and because public uses in another State, as shown by the petition, would be subserved by granting the petition and condemnation of the land.

Tried before tbe Hon. Thomas Roulhac. Action by William G. Stampbill v. LaFayette Bellen to recover damages for trespass on tbe land of plaintiff. Tbe facts are sufficiently stated in tbe opinion. — Parol evidence admissible to explain a latent ambiguity. — Vann v. Lundsford, 91 Ala. 581. (2). A deed not self proving wben tbe certificate of acknowledgment fails to state that tbe grantors were informed of its contents.

Tried before the Hon. H. C. Speake. Daniel Reinsclimidt sued out a writ of attachment before a justice of the peace against W. F. Griffin to recover rents claimed to be due to him by the defendant. W. T. L. Cofer interposed a claim to the property levied on, gave bond and took the property in possession.

Tried before Hon. J. R Tyson. This suit was brought on a policy of insurance by W. H. Crawford against the Hanover Fire Insurance Company. The facts are fully stated in the opinion. — The contract of insurance was entire; and parties must stand by their contracts as made. — Phoenix Insurance Go. v. Copeland, 90 Ala. 386; Dwight v. Insurance■ Go., Í03 N. Y. '341; 1st Biddle on Ins., Sec. 572; Alabama Gold Life Ins. Go. v. Thomas, 74 Ala. 578-; Royal Ins.

•Appeal from tbe Circuit Court of Bibb. . ■■ Tried before tbe Hon. John Moore. . W. H. Yeager recovered a judgment in tbe .justice ■court against C. C. Self and tbe cause was appealed to tbe circuit .court..

Heard before the Hon. Jere N. Williams. Long & Co., a firm composed of W. E. Long and Mrs. Granger, the latter a married woman, executed a mortgage to Slade and Farrish to secure a debt due to them by the firm. The mortgage Avas on land purchased by the partnership in the course of partnership business, and Avas executed in the firm name by Long alone. There Avas no attestation.

Tried before the Hon. W. W. Wilkerson. J. K. English and M. F. Webb, suing as partners, commenced an action in the justice court which was afterwards taken to the city court, against George L, Anderson, and G. L. Anderson & Co., limited. The suit was to recover the value of certain lumber, alleged to have been sold by plaintiffs to defendants, under a contract wbicb was changed by the parties after it Avas made.

Heard before the Hon. Thos. Cobbs. Esther Sheldon by next friend brought this' suit against the Birmingham .Building & Loan Association, a corporation, for an accounting and, for the settlement of all matters between the parties growing out of loans made by the company to complainant, and for the cancellation of mortgages executed to secure said loan.

Heard before the lion. William H. Simpson. The facts of this case are sufficiently stated in the opinion. (1). Nellie Sherloclc shows she had a bona fide debt due her from Wallen and that she did not know of his embarrassed condition and took the lot in payment of her debt. — Leo v. Williams, 79 Ala. 171; Bank v. Eburn, 84 Ala. 529; 14 So. Rep. 398. (2).

The bill in this case was brought by August Eling against the Fruitdale Lumber Oo. and others and seeks to have declared in his favor a lien on a certain lot of land and the improvements thereon because he furnished certain materials, 'fixtures, engine and machinery to the company in repairing and completing a saw mill of the said-company situated on said land, and also performed certain work on the engine, boiler, machinery, etc. — all under a contract with said .company.

<p>Appeal from Morgan Circuit Court sitting in Equity.</p> <p>Heard before the Hon. H. C. Speaks.</p> <p>The facts are stated in the opinion.</p> <p>cited, Oxanna Bldg. Ass’n v. Agee, 99 Ala. 591; Lyon v. Lor ant, 3 Ala. 151; Norwood v. Riddle, 1 Ala. 195; Wetumpka &e. Go. v. Cole, 6 Ala. 655; Bo. Ex. Go. v. Garroll, 42 Ala. 437; M. & G, R. R. Go. v. Whorley, 7ft. Ala. 264; Man. Fire Ins. Go. v. Fowler, '76 Ala. 372; Independent do. Ass’n v. American do. Ass’n, 102 Ala. 475.</p>

'Heard before the Hon. William H. Simpson. The May & Thomas Hardware Co. and others brought this bill for specific performance against Chas. P. Lane.

' Appeal from the Oity Court of Gadsden. Tried before Hon. John H. Disque. The Quéen Oity Electric Light Company brought suit by attachment against the Etowah Furnace Company. The writ of attachment was levied on 471 tons of pig iron as the property of the Furnace Company. The property was claimed by the Alabama Great Southern Railroad Company, who gave' bond and took possession of the same.

■ Appeal from tlie Circuit Court of Mobile. ■ Tried.'before the Hou. William S. Anderson., The facts of this case are stated in the opinion. — The appellant entered on.the land in quiet peaceable manner. In Mo-Ganegal v. Walker, 23 Ala. 361, the court say: “The bare removal of a fence if the defendant had entered peaceable would not convert his entry or detainer into a forcible one.” cited' Dunton v. Keel, 95 Ala. 162; State v. Posey, 79 Ala. 45.

Tried before the Hon. Thos. R. Roulhac. John M. McWhirter instituted a contest for the office of tax collector of Marion county to which office he claimed to have been elected. M. M. Frazier was the other party to,the contest. The contestant gave bond in the sum of $250.00 conditioned to pay the costs of the proceeding's if he failed in the contest. He did fail, the judge of probate deciding and decreeing that the con-testen was duly elected.

Heard before the Hon. Jeee N. Williams. Martha E. Brackin, haying money of her separate estate, arising from the rent and sale of her land, agreed with her husband by parol that it should be reinvested in land for her benefit. It was invested by him in land, but he took the deed in his own name. He went into .possession, and used and claimed it as his own land, which was known to his wife.

Tried before the Hon. John C. Anderson. W. E. Bailey & Bro. sued' out an attachment against W. H. Harkness and caused it to be levied on property as the property of the defendant. John A. Rogers interposed a claim by making affidavit and giving bond as required by law. Trial of the claim suit was had and judgment rendered for the plaintiffs.

Tried before the Hon. H. C. Speake. Action by J. H. Livingston against J. J, Cudd to recover the statutory penalty for the failure of the defendant to enter on the record satisfaction of a mortgage executed to him by the plaintiff — the same having been discharged by payment of the mortgage debt. The defendant demurred on the ground that the complaint did not allege that the plaintiff still owned or had an interest in the property embraced in the mortgage.

Heard before the Hon. Jere N. Williams. • J. W. Seals and others brought the bill in this case as the heirs and distributees of W. A. Weldon against D; R. Weldon as the administrator of the estate of the decedent.

Heard, before the Hon. Jeke N. Williams. Bill in equity by John Kelly to marshal assets ancP for an accounting. It alleges that one J. W. King executed a warrantee deed to complainant to certain land and put him in possession thereof, which deed was duly recorded.

This was a proceeding by petition for mandamus against the judge of the criminal court of Jefferson county, preferred to the Supreme Court by Wm. C. Fitts, Attorney General, acting for and in the name of the State, to compel said judge to vacate an order made by him by virtue of which collection of sheriff’s fees for feeding prisoner while in jail, from the defendant and the sureties on his confession of judgment for fine and costs, was prohibited.

Tried before the Hon. H. C. Speaks. A. E. Fields sued J. H. Karter to recover damages from him for buying and receiving cotton on which Fields had a lien. The evidence tended to show that the cotton was grown on the “Archie Place,” a plantation of land sold by the plaintiff to one Persall, and on which and on the cotton grown thereon the plaintiff had a mortgage from Persall to secure the purchase money.

’ Appeal from the Circuit Court of Lauderdale. Tried before tlie Hon. Titos. It. Rotjlhac. C. Smith sued S. S Broaddus and others in trover. W. L. Reeder executed k mortgage on certain real property to A. P. Wheeloclc. Afterwards, Reeder executed a written lease of the property to the Alabama Banking & Trust Company. The mortgage was made to secure money to complete a building to be used as a banking house.

Tried before the Hon. William S. Anderson, The Christian Si Craft Grocery Co. sued the defendants Hall and others as partners doing business under the firm name of the Fruitdale Lumber Company, for goods sold to them. Two of the defendants pleaded denying that they were members of the partnership named and that there was no such partnership.

<p>Appeal from the Circuit Court of Elmore.</p> <p>Tried before the Hon. N. D. Denson.</p> <p>The facts are stated in the opinion.</p>

Heard before the Hon. W. R. Francis, Special Chancellor. This is a suit by bill in equity brought by Malinda J. Jones against O. P. Davis and others to foreclose a mortgage. The facts are stated in the opinion. — The mortgage to O. P. Davis, Admr., was a continuance and preservation of the lien for the purchase money. — Wilson v. Knight, 59 Ala. 172; Kciscr v. Bahhoin, 62 Ala. 526; Feuche v. Sioain, 80 Ala. 151.

' Tried before the Hon. H. A. Sharpe. The defendant in the court below asked several charges all on the effect of the evidence. The facts are set out in the opinion. — The general charge should have been given to the second count charging willfulness. — Birmingham Railway and Electric Go. v. Bowers, 110 Ala. 328.

Tried before tbe Hon. H. A. Sharpe. This suit was on a contract entered into between J. W. McCarty, of the first part, and E. M. Tutwiler and tbe Tutwiler Coal, Coke & Iron Co. of tbe second part. It was transferred to W. I). McCarty & Co., ivho brought this action alleging tbe breach of tbe contract by tbe defendants who were tbe parties of tbe second part. . It is not necessary to set out tbe contract in full.

This is an application to the Supreme Court for mandamus. The petition states that suit is pending against the petitioner in the circuit court, of Mobile county brought by R. M. Sands as the administrator of John Mardin; that the deceased at the time of his death was a non-resident of Alabama and that all the distributees of his estate are non-residents, and that the estate is not indebted in this State; that petitioner moved the circuit court to require the plaintiff to…

Tried before the Hon. A. A. Coleman. W. H. Cummings applied to the probate judge of Jefferson county for retail license and was refused. This proceeding is an application by him for mandamus to said judge to compel him to issue the license. The other facts appear in the opinion. contended that the speciál prohibition statutes were repealed, citing the following authorities: 23 Am. & Eng.

Tried before the Hon. W. W. Wilkekson. R. L. Cooney brought this suit to recover damages of the defendant, a sleeping car company, for loss of personal effects from the car in which he was sleeping. The case was tried without a jury and judgment was given for the defendant. The facts are sufficiently stated in the opinion. cited, Pullman Oar Co. v. Lowe, 26 Am.

Tried before Hon. W. W. Wilkeeson. On the 30th day of November, 188'6, the Elyton Land Co. sold certain lands to William Hood and executed to him bond for titles, receiving from him promissory notes for the purchase money. This suit was brought on one of these notes.

Tried before the Hon. O. J. Semmes. Hattie B. Moore sued the appellant for a stock dividend which had been declared by the defendant company. She held certain shares of stock in the company as the transferee of the Alabama Dredging and Jetty company The latter company had taken stock in the Packet company and had transferred its shares to the plaintiff with the dividends theron.

Tried before the Hon. James J. Banks. ; . 'This suit was ón a promissory note and Was brought by .'F. M. Payne against B. M. Long. Payne dying during the progress of the suit, bis executor, E. W. Payne, was nlade party plaintiff.

<p> Bill of Foreign Corporation to Foreclose Mortgage. ' </p> <p>1. Foreign corporation must have a known place of business. The Constitution, Art. 14, Sec. 4, prohibits a foreign corporation from, doing any business in this State without having at least one.known place of business and an authorized agent or agents therein. The uniform construction of this provision has been that it is prohibitory, rendering it unlawful for a foreign corporation, without compliance with its conditions, to transact any business here, and that all contracts into which it might enter, while executory, requiring the . aid of the courts'to enforce them are void.</p> <p>2. Bill by foreign corporation, what it must allege. — A hill in equity brought by a foreign corporation to foreclose a mortgage executed in this State on real estate here situate is demurrable unless it contains an- express averment that at the time of making the contract the corporation had a known place of business in the State and an authorized agent therein. (The rule laid down in Farrior’s case, 88 Ala. 5175, and in Christian’s case, 89 Ala. 198, reaffirmed. What was said in N.elm’s case, 92 Ala. 157, as to dissenting from this rule held to he dictum.)</p> <p>3. Motion to dismiss for want of equity; when not appropriate. A motion to dismiss a bill for want of equity is not appropriate to reach defects chrable by amendment; but when such motion is sustained and leave given to amend the error is harmless.</p> <p>. 4. Mortgage; unattested and not acknowledged void; acknowledged in.. this State, presumption. — An unattested mortgage on real estate is -without validity in this State until ac- . t knowledged as required by law; and if acknowledged in this State the just construction of the certificate of acknowledgment is that the signing, sealing and delivery were contemporaneous acts done in this State.</p>

<p>■ Appeal from the Circuit Court of Jackson.</p> <p>-■ Tried.-before W. L. Stevens, Esq., Special Judge. ■</p> <p>’ 'The facts are stated in the opinion. ,</p>

Tried before the Hon. James J. Banks' This was an action brought by the White Sewing Machine Co. against the defendants on a bond executed by them to the company to secure the faithful performance of his duties by Saxon, the principal in the bond, as its agent in selling sewing machines.

Tried before the Hon. W. A. Anderson. This was an action by Robert W. Atkeison against Emma O. Brewer for money received by her for use of plaintiff. Pleas, the general issue and a special plea. Leroy Brewer the testator of defendant sold land to one B. W. Goodwin, and took three notes for the purchase money, secured by mortgage on the land. Brewer in bis life time transferred one of the notes to the plaintiff.

Heard before the Hon. W. H. Simpson. Bill by the Decatur Land Company to foreclose a mortgage.

’ Heard before the Hon. W. H. Simpson. The supplemental bill in this case was brought by Annie Jordan and others against W. G-. Jordan and others. It was filed by agreement between all the parties .thereto. By the terms of this agreement it was provided that the bill should be submitted at once to the chancellor in term time or vacation and that a decree conforming to the agreement should be rendered on the bill as confessed by the respondents.

Tried before the Hon. James W. Lapsley. Isaac N. Towns purchased land with funds belonging to his wife. After her death C. N. Towns and Mary Towns obtained a decree of the chancery court investing them with the title, but reserving to I.. N. Towns a life estate by courtesy. I. N. Towns being in possession C.. N. Towns moved on the land at the plaintiff’s request, but afterwards refused to yield his possession to plaintiff. Thereupon this suit ivas brought.

. Heard before the Hon. Jbre N. Williams. The hill in this case was filed by W. 33. McCurdy- v. C, E. Reese, Jr., and sought, among other things, to have a lien declared on property alleged to haye, been purchased with partnership funds by Reese and the title taken, in his OAvn name. The defendant demurred and assigned as his second and third ground that the bill did not describe the property on which a lien is sought to be decreed.

Tried before the Hon. J. A. Bilbro. • This suit was brought by Virgil Bouldin, trustee, in the justice court to recover three notes executed by James P. Barclay. -• The case was removed to the circuit court by certior-ari. The defendant pleaded non est factum.

, Appeal from the Chancery Court of Cullman. Heard before the Hon.. Wm. H. Simpson. Annie Brindley filed her bill against her husband for the allowance of-alimony without the granting of a divorce. The chancellor entered a decree for temporary allowance pending the suit.

Heard before the Hon. H. A. Sharpe. Balch, Price & Co. and other creditors of the Klein Furnishing Co., filed a creditors’ bill, and sought to subject to their claims as equitable assets, the proceeds that might be recovered in certain pending suits wherein the Furnishing Company was seeking to recover damages from certain of its attaching creditors and their bondsmen.

Tried before the Hon. O. J. Semmes. On the 30th day of April, 1898, the city court of Mobile in term time made a minute entry extending to the appellant thirty days in which to present his bill of exceptions. A motion for a new trial in this cause was then pending which was continued to an adjourned term of the court.

Tried before Hon. W. W. Wilkerson. The facts are stated in the opinion. contended, that Cochran and Ramsey were bona ficle purchasers for value, and cited, Alston, v. Marshall, 112 Ala. 638; J ones v. Robinson, 77 Ala. 439; Davis v. Davis, 88 Ala. 523; Griffin v. Sail, 111 Ala. 601; Barton v. Barton, Ala. 523; Griwn v. Hall, 111 Ala. 601; Barton v. Barton, 75 Ala. 400; Milliken v. Faulk, 111 Ala. 658.

Tried before the Hon. H. C. Speaks. Action on official bond. ■ The complaint alleges that J. 0.

' ATpeal from the Chancery Court of Blount. ’ Heard before’ the Hok.

.... Tried before the Hon. William S. Anderson. • ,, The plaintiff sued . the defendant company fpr malicious prosecution. The plaintiff had for some years been a customer of the defendant, having at his own expense put in a supply pipe with stop cocks attached from the main of the defendant located in the middle, of the street to the sidewalk in front of his residence, which was also his place of business.

Tried before the Hon. H. A. Sharpe. The facts of this case are fully stated in the opinion.

Tried before the Hon. G-eo. E. Brewer. Action by A. Y. Bowie against the New South Building & Loan Association to recover the statutory penalty for the failure on the part of the defendant, after request niade by the plaintiff, to enter on the margin of the record of a mortgage, partial payments made by the plaintiff.

Tried before tbe Hon. N. I). Denson. Tbis action was commenced in a Justice Court by Jno. A. Lancaster against tbe L. & N. It. It. Co. and was carried by appeal to tbe Circuit court. In the justice court there was only one count to tbe complaint in.which damages were claimed for killing two steers and one milch cow. The justice gave judgment for the plaintiff for the killing of the two steers and for the defendant for the cow.

Heard before the Hon. John C. Carmichael. The bill in this cause is for an injunction to restrain the defendants from proceeding further in the probate court with a cause for condemnation, pending an appeal to the Supreme Court from the order of condemnation. Injunction was granted, but was dissolved on the coming in of the answer. Appeal from this decree dissolving the injunction. cited, N. 0. & 8.

Appeal, from tlio Chancery Court of Mobile. Heard before tlie Hon. W. H. Tayloe. The New York National Building & Loan Association brought this bill against Jules Eslava to foreclose a mortgage executed to it by Odyle Eslava on the land which the latter conveyed to Jules Eslava after the execution of the mortgage. The defendant demurred to the bill on the grounds covered by the points determined in the opinion. The demurrer was overruled] and from this decree appeal is taken.

Heard before the Hon. Thomas Cobbs. The facts of this case are sufficiently stated in the opinion. cited, Groen v. Dickson, MSS. cited, Wright v. Dem-Min, 83 Ala. 322; Gilmer v. Morris, SO Ala. 78; Ga. & Pa. lly. v. Gaines, 88 Ala. 377.

Tried before tbe Hon. H. C. Speake. This was a suit for damages brought by Horace Orr as the administrator of Hannah Orr against the Louisville & Nashville Railroad Co. The defence was contributory negligence. To this plea the plaintiff replied that the deceased went on the railroad track in the effort to save the life of her grandchild ivho had gone on the track in front of an approaching train.

Tried before the I-Ion. William S. Anderson. R. B. Owen was employed to act as Secretary of the Mobile, Jackson & Kansas City Railroad Co. by its president at the rate of $50.00 per month. He was after-wards elected to the position by the directors of the company and re-elected after the expiration of the first term of service — each election being for one year — but the salary was not fixed in amount. The last year of service expired with the year 1890.

Tried before the 1-Ion. W. W. Wilkerson. Action on an account stated tried by the court without jury. A conversation between the plaintiff and a brother of the defendant in the absence of the latter was admitted by the court. Also a conversation between the same parties at the bedside of the defendant touching the amount of the account Avhile the latter was “as sick as a man could be and be alive” was offered and admitted.

Tried before the Hon. J. W. Poster. Action by Eufaula National Bank against O. H. Parker as administrator of S. A. Holt. Within the time for the presentation of claim the bank presented to the administrator its account against the estate in the form of an account rendered for a certain amount.

Tried before the Hon. A. D. Sayre. The facts of this case are fully stated in the opinion. cited the following-cases to show that the plaintiff was not bound to take notice of the rules of the defendant. — Hinton v, Locke, 5 Hill, 434; Buck v. Grimshaw, Edw. Ch. 140; Smith v. Rice, 56 Ala. 417; M. & M. By.

■'' Heard before the Hon. John H. Disque. The bill in this case was filed by Thos.

Heard before the Hon. William H. Tayloe. The Anno ar Packing Co. and other creditors sued out attachment against E. M. Cottingham & Co. and caused them to be levied on a stock of goods which Cottingham & Co. had sold to J. M. Cottingham and M. A. Suttle.

Tried before the Hon. John Moore. John Alley Parker sued William Bond in this case on a note given as a premium for a policy of life insurance. The defendant interposed several special pleas which are sufficiently set out in the opinion, as are the other questions of pleading.

■ Appeal from the Chancery Court of Clay. . Heard before the Hon. J. R. Dowdell. W. J. Wiliams bought a piece of land from S. H. Wood, executed his note in part of the purchase money and'received a bond for title. Williams afterwárds brought a suit in the chancery court for the specific per-forriiance of the contract. During the progress of the suit he became a non-resident of this State and was by tbe court on motion of tbe respondent required to give surety for tbe cost.

J. N. Williams. The facts are stated in the opinion. — -The contract with the construction company was against public policy. — Tí es-tar v. Wathen, 60 Ill. 138; Fuller v. Dane, 18 Pick. 472; Holloway v. Patterson, 5 Or. 177. (2). The contract was unilateral and consequently void for want of mutuality. It was not transferable. (3).

Heard before the Hon. W. H. Tayloe. The bill in this case alleges that Elvira Coleman, one of the defendants, purchased a lot of land and received-a deed tberefor; that Smith paid the purchase money out of his oavu funds and without consideration; that Smith Avas at the time largely indebted to complainant; that he has since died and that his estate is insolvent. Submitted on pleadings and evidence.

■Tried before the Hon. N. I). Denson. This suit was by C. W. Ashcraft as administrator, etc., of Merrit Street against E. P\ Duncan to .try the right of property. A judgment in the circuit court had been rendered in favor of Ashcraft, Adm’r, etc., against J. F. Freeman.

<p> Prosecution for Engaging in the Business of Belling Liquors. Without License. </p> <p>1. License to sell liquors required of clubs; what business intended to be taxed. — Where municipal authorities, pursuant to the powers conferred on them by charter, enact that license shall be taken out by clubs and social circles where liquors are sold to members, guests and visitors, and that a fine shall be imposed for failure to do so, it has been uniformly held in this State that the business intended to be taxed by such enactments is one which is carried on for a livelihood or profit.</p>

Tried before the Hon. J. J. Mayfield. The Alabama State Land Company sued J. R. Shut-tleworth in ejectment. The defendant pleaded that he was in possession of the land as the tenant of Mary Shuttleworth who had held the land sued for in adverse possession under color of title for more than ten years.

Heard before the Hon. Thomas Cobbs.-' The bill in this case was by Pearson Coal & Iron Co. for injunction and relief. . The injunction prayed for was granted and motion was made by the defendants to dissolve it. This motion was denied and from the decree overruling it this appeal is taken. (1).

. Tried before the Hon. John H. Disque. The facts necessary to be here set out are these: The plaintiff, Mattie Gwin, became a stockholder in the National Building & Loan Association, and borrowed from the association one thousand, dolars, to secure the payment of which she and her husband executed a mortgage on her property.

• Appeal from the Chancery Court of Mobile. Heard before the Hon. Thomas H. Smith. Jas. Douglas, Sr., and his wife sold their homestead to Jno. E. Loxley and received- in part the payment of the purchase money; but the deed of conveyance was defective because a separate acknowledgment of the wife was not taken. This suit Avas brought by Douglas to vacate the deed.

<p> Bill in Equity to Reform a Mortgage. </p> <p>1. Demurrer when sustained on one ground is in effect sustained on all; defendant cannot appeal. — If a bill in chancery is demurred to on a number of grounds, and the demurrer is sustained on one of them, the effect of the decree is to sustain the whole demurrer, and put the case out of court unless the bill is amended; and from such decree the defendant cannot appeal.</p>

Heard before the Hon. Jere N. Williams. The bill in this case alleges that J. L. Chadwick, T. H. ChadAvick and O. D. ChadAvick, together with their mother, Mrs. M. F. ChadAvick, purchased a piece of land on credit; that they jointly cultivated the land, and from the proceeds of the cultivation paid the purchase money for the land; that the deed Avas executed to the mother, Mrs. ChadAvick; that the complainant, J. L. Chadwick, contracted Avitk the others to purchase their…

. Tried before the Hon. Pkice Williams, Jr. J. M. Ladd and others proceeded regularly in the probate court of Mobile county to obtain an order or decree to sell for division certain land held by joint owners or tenants in common. U. V. Ladd and the other joint owners were made parties. The decree of sale was rendered, the sale had, and the report duly made by the commissioner and confirmed by the court.

the Circuit Court of Clay. Tried before the Hon. Geo. E. Brewer. James T. Hanners sued the defendant, C. S. Northern, in an action in tort, and failing in his suit, judgment was rendered against- him for costs of suit. Execution issued on this judgment and was levied on the personal property of the plaintiff. He interposed a claim of exemption which the defendant contested.

Heard before tbe Hon. W. W. Wilkerson. The Watts Mining Car-Wheel Co. and others brought a bill against T. M. Davidson to set aside a judgment by confession rendered in his favor against the Watts Coal Company, and to condemn the property sold under the execution issued on said judgment, and bought by Davidson. Decree was rendered in favor of complainants who were creditors of the Watts Mining Company.

Tried before the Hon. W. W. Wilkerson. This action was by J. T. Yeatman against the National Guarantee Loan & Trust Co. and Avas brought on the common counts. The defendant pleaded the general issue and also specially. The third plea set up that the plaintiff’s demand grew, out of the issuance to hiip of certain shares of stock in the company; and that he was a stockholder holding the certificate of the company and was bound by its by-laws.

Tried before the Hon, W. B. Bridges. D. K. Caldwell as the administrator of Hamlin Caldwell, deceased,’ made his final settlement in the probate court. It appeared that one of the distributees, E. H. Caldwell, was indebted to the estate in an amount larger than his distributive share. This excess of his indebtedness over his distributive share was stated in the decree rendered on the settlement of the administrator and is claimed by E. H. Caldwell to be excessive.

K. Middleton, Esq., as Special Judgé. The facts sufficiently appear in the opinion. There ivas no judgment in this case. — Park vy Lide, 90 AÍa. 246; Baker v. Swift, 87 Ala. 530; Morgan v. Flex-ne-r, 105 Ala. 356. No attention was called in the court below to the failure to assess value of property. — Jordan v. Collins, 107 Ala. 572.

Tried before the Hon. J. M. Carmichael. This was a trial of the right of property. Isaac Ross attached a part of the crop of Jas. Wairtch to enforce his lien as landlord. Ross had given to the tenant the paper set out in the opinion on which W. D. Varner & Oo. advanced to the tenant-; and afterward interposed a claim in the attachment suit on the ground that Ross had waived his lien on all the cotton raised by the tenant except two bales.

Tried before the Hon. James A. Bilbro. The facts of this case are stated in the opinion. cited, on the power in the legislature to ratify the election, Cooley on Con. Lim. 6 ed. 457 ; 52 Ala. 79; 21 Fed. Fed. Rep. 99; 87 Fed. Rep. 630; 44 la. 639; 87 Ind. 17; Myer on Vested Rights 138; 1 Hill 324; 6 la. 305; 87-Fed. Rep. 630. contended, that the act of the legislature ratifying the election is unconstitutional.

Tried before the Hon. A. D. Sayiie. L. Lemle brought his bill and averred that he was the oivner of a certain lot of land in the City of Montgomery with the building thereon; and that the municipal authorities Avere proceeding to change the grade of the street on Avhich his house abutted, and to this end was raising the sideAvalk along his building, and if allowed to proceed would do him great damage; that no legal proceeding had been taken as provided by law to condemn his…

Tried before the Hon. J. W. Foster. The plaintiff sued the defendant in detinue to recover certain lumber. Prior to this suit the plaintiff had recovered a judgment against the defendant before a justice of the peace. Execution issued on this judgment and ivas levied on the lumber.

Tried before the Hon. J. W. Foster. Emma E. Speight sued the city of Eufaula for injuries sustained by her from a defective sidewalk. Verdict for plaintiff and motion for a new trial. The motion was overruled and from this judgment appeal is taken. The facts appear in the opinion.

•Heard before the Hon. J. R. Dowdell, The facts are fully stated in the opinion; ■ (1). A party who. purchases land and t-alces the title in the name of another that other holds in equity as the trustee of the person paying the purchase money; and this applies to purchasers from Bie United States. — Irvi/ne v. Marshall, 2.

Tried before the Hon. William S. Anderson. The Louisville & Nashville Railroad Company transported freight consisting of rails, spikes, etc., consigned to the Gulf City Construction Co. On arrival of the freight at Mobile, the point of destination, notice of arrival was given to the consignee, which notice consisted of a duplicate of the freight bills.

Tried before I-Ion. John R. Tyson. The facts are fully stated in the opinion. cited the following cases on the doctrine of estoppel. Tankefsly, Ad’m’r v. Pettis, 71 Ala. 179; McCall v. Jones, 72 Ala. 371; Haas v. Taylor, 80 Ala. 464; Caldwell v. Smith, 78 Ala. 164; Lehman Durr v. Clark, 85 Ala. 112; McDonnell v. Heard, 100 Ala. 112. cited, McCall v. Jones, 72 Ala. 372; Hanchey v. Caskrey, 81 Ala. 150; Lidell v. Chi-Vol. 121. dester, 84 Ala. 510; 1 Greenleaf on Ev.

Ait’eai'j from the Circuit Court of Cullman. Tried before the Hon. H. C. Spbaice. This was an action by E. H. Peck and Brother against J. II. Karter. Judgment was rendered in favor of the defendant, which on motion of the plaintiff's was vacated and a new trial granted.

I-Iearcl before tlie Hon. A. I). Sayre. Mrs. Isabella B. S. Nicbols brings her bill to foreclose a mortgage executed to lier by E. G-. Pike and his Avife on a certain lot of land. The land Avas OAvned jointly by Bike and his Avife, but the legal title became vested in the husband alone as stated in the opinion. The husband and Avife executed the mortgage to the complainant to secure the payment of money borrowed by the husband for his own use.

Ari’BAL from the Circuit Court of Pike. Tried before the Hon. J. W. Foster. M. T. Middlebrook as the administrator of .J. T. Barefoot brought suit in ejectment against G. W. Barefoot. The defendant pleaded not guilty. The defendant offered two deeds from the intestate to Mm.

Tried before the Hon. J. A. Bilbeo. Copeland sued Fields in trover. The plaintiff executed a mortgage on personal property to the defendant. Copeland also executed a mortgage to McEntire & Co. on the same property and of date prior to the mortgage to Fields. This mortgage contained a provision that should the mortgagor sell or remove any of said property then the mortgagee should have power to take possession of the property mortgaged.

Tried before the Hon. II. A. Sharpe. Action by W. U. Mothershed as the administrator of Thomas Edmunds against the Louisville & Nashville Hailroad Company to recover damages for thejdeath of the intestate caused, as alleged, by the negligence of the defendant company. At the time of his death the intestate, as locomotive engineer, was running a freight train- on the defendant’s road.

Tried before Hon. Geo. E. Brewer. Tbe facts are stated in tbe opinion.

Heard before the Hon. J. It. Dowdell. The Wills Valley Mining and Manufacturing Company and others brought a creditors’ bill against the Etowah Mining Company and others. The defendants answered and prayed that the answer be taken as a cross bill. The original bill was dismissed at the instance of the'complainants. Prior to the dismissal, the court had made an order directing the payment hy the register of certain moneys to the Wills Valley Mining & Manufacturing Company.