Volume 122 — Alabama Reports

<p> Indictment for Murder. </p> <p>1. Jury law; statute providing for drawing of jury a general and not a special law. — The act approved February 28, 1887, iActs of 18S6-87, p. 151) “to more effectually secure competent ani well qualified jurors in the several counties of this State,” is a general and not a local or special law, notwithstanding the exclusion of some counties from its operation; and its several provisions being embodied in the Code of 1896, were re-enacted by the adoption of said Code, and being, therefore, in pari materia, must be construed together.</p> <p>2. Same; failure to comply with directory provisions not reversible error. — Where statutory regulations in regard to the organization of juries are made by statute purely directory, a failurt to comply with such regulations is not reversible error.</p> <p>3. Organisation of jury; failure to state on lists of jurors their occupation, does not authorise quashing of venire. — Under the provisions of section 4997 of the Code, no objection will be sustained to a venire for a petit jury, except for fraud in drawing and summoning the jurors; and, therefore, a failure on the part of the jury commissioners, making the list of names drawn for the jury, to state opposite the names the occupation of each of said jurors, as provided by section 4982 of the Code, is no ground for quashing the venire; such provision being directory merely.</p> <p>4. Same; not necessary for jury to be drawn day before■ case is set for trial. — The jury law does not require a special venire, from which the jury to try a capital case is to be impannelled, to be drawn one day before such case is set for trial.</p> <p>5. Same; regular jury for the igeeh can be included in special venire, Where an order for the drawing of a special venire, from which a jury to try a capital case is to be impannelled, is made the week previous to the one in which the trial is to be had, it is not erroneous to make the juries summoned for the week in which the case is set for trial, a part of the special venire.</p> <p>6. Homicide; when evidence as to turbulent character of deceased inadmissible. — On a trial under an indictment for murder, where there is no evidence of a rencounter between the deceased and his assailant, and there is no question as to who was the aggressor in the difficulty, evidence that the deceased was of a turbulent and blood-thirsty character is wholly irrelevant and inadmissible.</p> <p>7. Same; admissible evidence. — On a trial under an indictment for murder, the fact that another person than the defendant had a difficulty with the deceased prior to the homicide, and was arrested on a charge of having killed him, does not tend to show such other person was guilty of the homicide charged in the indictment, and that the defendant was innocent.</p> <p>8. Evidence; witness incompetent to testify to facts inferred by him. — -Where a witness has testified to a certain fact, and upon cross-examination it is disclosed that such testimony was merely a conclusion on the part of the witness, or mere reference from certain things having happened, such testimony should, upon motion, be' excluded; the mere opinion of the witness or inferences drawn by him from certain facts not being admissible in evidence.</p> <p>9. Trial and its incidents; argument of attorney. — Where a defendant in a criminal case did not testify as a witness, it is improper for the prosecuting attorney in his argument before the jury, to comment upon the failure of the defendant to deny certain facts which were testified to on the trial.</p>

Tried before the Hon. H. C. Speake. The defendant, Alfred Thompson, was indicted, tried and convicted for the rape of one Callie King, and was sentenced to the penitentiary for life.

Tried before the Hon. H. C. Speaks. The appellant, Gordon Childress, was indicted, tried and convicted for the larceny of a twenty dollar gold piece, the personal property of one Jeff Gurley.

Heard before the Hon. J. B. Gaston. On April 1, 1899, the appellant, Brooks Fuller, by his attorney, filed a petition, addressed to the Judge of Probate of Montgomery County. This petition was as follows: “The petitioner alleges that he is illegally restrained of his liberty and detained in the custody of the' said W. W. Jones for and on account of the Board of Convict Inspectors, or for and on account of the State of Alabama: because, First.

Tried before the Hon. James W. Lapsley. Tbe appellant was indicted, tried and convicted for an assault with intent to murder, and was sentenced to the penitentiary for two years.

Tried before tlie Hon. J. W. Poster. The appellant, Marion Roberts, was indicted, tried and convicted for forcibly ravishing one Annie Hattoway. On the trial of the case, after the said.

Tried before the Hon. John B. Tyson. ' The appellant, John A. Gaiford, was indicted and tried for the murder of Francis Bartow Lloyd, was convicted of murder in the first degree, and sentenced to be hung. The material facts of the case, necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion.

Tried before the Hon. J. A. Bilbro. The appellant Fayette Hale was tried and convicted tinder an indictment which charged that he “Avith intent to steal broke into and entered the store of Scheie McConnell, in which goods, merchandise or clothings, things of value were kept for use, sale or deposit,” &c. J. L. McConnell as a Avitness for the State, testified that the storehouse burglarized belonged to him, but that Scheie McConnell, his son, occupied it and carried on a…

Tried before tbe Hon. Samuel E. Greene. Tbe appellant, Elbert Clayton, was indicted, tried and convicted for an assault- with intent to murder; and was sentenced to the penitentiary for twenty years. On the trial of tbe cause, evidence was introduced tending to show that the defendant was guilty of tbe offense charged. Tbe facts disclosed by tbe record as to tbe commencement of tbe prosecution are sufficiently stated in tbe opinion. . .

Tried before tlie Hon. John B.Tyson. The appellant in this case was indicted and tried for murder, was convicted of murder in the first degree and sentenced to the penitentiary for life. The facts disclosed by the record, so far as they relate to the only question reviewed on the present appeal, are sufficiently ■shown in the opinion.

Tried before the Hon. J. A. Bilbro. The appellant was indicted, tried and convicted for carrying a pistol concealed about his person. The facts of the case pertaining to the rulings of the trial court, which are reviewed on the present appeal, are sufficiently stated in the opinion. ' — The evidence •offered to show the ill will of the father and mother’of Otto Gordon upon whose affidavit the prosecution ivas commenced, was not admissible. — Smith v. State, 118 Ala. 117.

Tried before the Hon. A. D. Sayre. The appellant, George Benson, was indicted, tried and convicted under the following indictment: “The grand jury of said county charge that before the finding of this indictment, George Benson, with intent to injure or defraud, did falsely make, alter or forge an instrument in writing in words and figures substantially as follows: The Farley National Bank of Montgomery, Ala. June 30, 1898.

Tried before the Hou. H. C. Speake. The appellant, Louis Ratliff, was indicted, tried and convicted for the wanton injury of a hog. The tendency of the State’s testimony is shown in the oipnion.

Tried before the Hon. Jas. A. Bilbro. ' The appellant, George Lodge, was indicted, tried and convicted for carrying a pistol concealed about his person. The testimony for the State tended to show that on March 27,1898, the defendant was seen at Bock Bun Station, in Cherokee County, Alabama, waiting for a train; that as he stooped down his coat got hung over the handle of Ms pistol, Avhicli Avas in liis hip pocket, and the pistol Avas seen by the State’s Avitnesses.

Tried before the Hon. A. D. Sayre. The' appellant was tried and convicted under an indictment which charged that “without legal cause or good excuse, he entered upon the premises of W. C. Frizzle, after having been warned within the six months preceding not to do so.” W. C. Frizzle, witness for tlie State, testified that he had possession under lease from other parties, and had had for a number of years, of tAVO plantations, one knoAvn as the Beed place, and the other as the…

I-Iearcl before the Hon. George E. Brewer. Janies Hill filed tlie petition in this case, addressed to die Judge of the Seventh Judicial Circuit, in which he averred that he was imprisoned in the county jail of Shelby county, by virtue of a judgment rendered on April (>, 1899; that said judgment, in so far as it sentenced him to hard labor for the county for the costs of prosecution, is void, and that he has been already imprisoned in said county jail for one day, the term of…

Tried before the 1-Ion. George E. Brewer. This action was brought by the appellant, Tyre W. Whatley, as administrator of the estate of Tlios. J. Whatley, deceased, against the Zenida Coal Company, to recover damages for the alleged negligent killing of plaintiff’s intestate. The complaint as amended contained six counts.

Aiteals from tbe City Court of Birmingham. Hoard before tlie Hon. W. W. Wilkerson. Those two causes, involving the same legal questions, wore submitted together. The first suit brought ivas that of Roberts & Son v. Kenneth F. Hawkins, county treasurer of Jefferson county.

Tried before the Hon. S. H. Spiiott. This action was brought by the appellee againsttheappelant. The facts of the case are sufficiently stated in the opinion. The substance of the plea in abatement which was filed by the defendant to the jurisdiction of the court and the grounds of demurrer thereto are stated in the opinion. The court sustained this demurrer.

Tried before tbe Hon. O. J. Sejimes. This action was brought by the appellee, the City of Mobile, against the appellant, W. F. Browne. In the complaint, the plaintiff claimed of the defendant the sum of ten dollars as a penalty for the violation of an ordinance of the City of Mobile. The ordinance which was alleged to have been violated was set out in the complaint, and was an ordinance to fix the rate of licenses for the year commencing March 15, 1897.

Addeal from the Chancery Court of Mobile. Heard before the Hon. William H. Tayloe. The bill in this case was filed by the appellee against the appellants, Z. M. P. Inge ,individually and as trustee for the bondholders of the city of Mobile, and L. H. Kennerly individually and as tax collector.

Tried before the lion. H. C. Speaice. This was an action brought by the appellant, John L. Brock, against the Louisville & Nashville Railroad Companv. The first count in the complaint is against the defendant company as a common carrier in Code form. This suit was commenced Sept. 21st, 1895.

■ ' Heard before the Hon. J. ii. Dowdell. The bill in this case was filed by the appellant, II. A. Stewart, against the appellee, M. S. Conley, and sought to have the defendant perpetually enjoined from building gates or otherwise obstructing a road lying between the premises of the complainant and the respondent in the town of Munford, in Talladega county, Alabama.

Heard before the Hon. M. T. Porter. Tn May, 1897, L. E. Henderson, the illegitimate son of Mrs. Lucretia Henderson, died intestate in the city of Birmingham, leaving no children or wife; but leaving surviving him his mother, and three half brothers and one half sister, who were grown, and two nieces, the minor children of his deceased half sister. T. J. Mathews was appointed administrator of L. F. Henderson’s estate.

Clair. Tried before tbe Hon. George E. Brewer. .Tliis was a common law action of ejectment against the appellants, and was commenced August 28, 1893. There were three demises in tbe complaint. One was laid in Jolm T. Barron, another in J. W. Moore as the executor of W. G. Moore, deceased, and tbe other was laid in tbe heirs at law of W. G. Moore, deceased.

Tried before tbe Hon. William S. Anderson. Tbis action was brought by tbe appellee, John G. Hulsebusb, against tbe appellant, John Case. Tbe facts of tbe case are sufficiently stated in tbe opinion.

Tried before the Hon. J. M. Carmichael. This action was instituted on December 24, 1895, by the appellees, J. L. Hall and L. B. Farley, trustees, against the appellant, B. P. Garner; and counted upon a note, which was in words and figures as follows: $100.00. Ozark, Ala., April 2,1897.

Tried before the Hon. W. W. Wilkebson. This action was brought by the appellee, Charles H. Huy ton, against the Southern Bailway Company, to recover damages for personal injuries to the plaintiff, alleged to have been caused by reason of the negligence of the defendant. The complaint contained five counts.

<p>Appeal from tlie Chancery Court of Jefferson.</p> <p>Heard before the Hon. Thomas Cobbs.</p> <p>Tlie appellant, Susan Lunsford, filed a bill in the chancery court, in which she alleged that her husband, George Lunsford, a resident of Jefferson county, died, leaving a last will and testament, which was duly probated in the probate court of Jefferson county, and letters testamentary were duly and legally issued to Susan Lunsford, the widow of the deceased, and that Susan Lunsford, the complainant, took possession of the property of the estate of her testator, and entered upon the duties of executrix.</p> <p>The bill prayed that tlie administration of the estate of George Lunsford, deceased, be removed from the probate court into the chancery court. To this bill, the appellees, William G. Lunsford and others, who Avere next of kin and heirs at laAV of said George Lunsford, deceased, were made parties defendant. William Aiken, a creditor of said George Lunsford, was also made a party defendant. The chancery court rendered a decree granting the relief prayed for and assumed jurisdiction of the administration of the estate. Subsequently there Avas rendered by the chancery court a decree of insolvency. After the rendition of the decree of insolvency, William Aiken and others, as creditors of said, insolvent estate, filed their petition in said court praying for the appointment of a receiAmr for said estate, alleging incompetency, misconduct, &c. of Susan Lunsford, as executrix, in the management of the administration of said estate. The other facts of the case are sufficiently stated in the opinion.</p> <p>Upon the hearing of the petition for receiver, the chancellor rendered a decree granting the prayer of the petition and appointing one F. W. Dixon as receiver; at the same time denying and refusing the prayer of S. W. John, Avho had been appointed administrator cle bonis non, to be made a party complainant, as such administrator do bonis non. From this decree the complainant appeals, and assigns the rendition thereof as error.</p> <p>— The sole ground assigned by the chancellor for appointing a receiver Avas, that there Avas a Amcancy in the office of executor or administrator, and that the appointment by the probate court of S. W. John to fill that vacancy Avas Amid. The probate court had the exclusiAm jurisdiction to appoint an administrator de bonis non. — Ex parto Lunsford, 117 Ala. 221. And having exercised that power, the chancery court court could not hold it Amid.- — Ikelheimer v. Chapman, 32 Ala. 699; Sims v. Boynton, 32 Ala. 361; Thrasher v. Ingram, 32 Ala. 658. The exercise of the power by granting the letters to John, raised an indisputable presumption of the regularity of the exercise of jurisdiction, and of the Amlidity of the order appointing him.- — Turrentine v. Daly, 82 Ála. 207.</p> <p>This Court lias laid doAvn, very plainly, the rule for the appointment of a receiver to take the assets of an estate from custody of an administrator: “A court of equity in all cases exercises with caution the jurisdiction to appoint receivers. A strong case is required to induce the appointment of a receiver to take assets from the custody of an executor or administrator, displacing his authority. The administrator derives his authority from, and is in a qualified sense, the officer of another court of exclusive jurisdiction, compelled to give and keep a bond with sufficient sureties for the prompt and faithful discharge of the trusts of the administration. The court is, therefore, reluctant to interfere with them by the appointment of a receiiver. There must be actual misconduct or fraud, and immediate danger of loss, or the appointment of a receiver cannot be justified.” No competent reason exists for the appointment of a receiver in this case at the túne of the rendition of the decree making the appointment. The executrix had been removed and an administrator de bonis non duly appointed by the prohate court. — Randle v. Garter, 62 Ala. 102; Micou v. Moses Bros., 72 Al'a. 441.</p> <p>— On the 12th of May, 1898, S. W. John, in his alleged character of administrator de bonis non of George Lunsford’s insolvent estate, which was denied and contested by the creditors of that estate, could not intervene in the proceedings then before the chancery court for a receiver, to which, as such, he was a stranger, by mere oral suggestion or motion or petition, to litigate therein and establish his new, distinct and resisted claims to be such administrator and so recognized. He must come in'and assert his new character and claims, by original bill, presenting his alleged new character and claims, setting up his independent rights and raising the new issues springing out of them, and bring in by reasonable notice, all parties who may be adversely interested. Because this has not been done, the chancery court was right in repelling the attempt of said S. W. John to intervene in the matter before it . — Renfro Bros, v. Goetter, 78 Ala. 311; Ex parte Printup, 87 Ala. 148; G owl os v. And,reíos, 39 Ala. 125; Glenn v. Billingslea, 64 Ala. 352; Code, § § 241-248.</p> <p>The alleged appointment and letters of said S.W. John on May 12, 1898, by the probate court of Jefferson county, as administrator cle bonis non of the insolvent estate of George Lunsford, deceased, were null and Amid for Avant of jurisdiction and conferred no rights or authority on him. — Baker v. Mitchell, 109 Ala. 492; Ligón v. Ligón, 105 Ala. 460; Tygh v. Dolan, 95 Ala. 269; Sharp v. Sharp, 76 Ala. 317; Bragg v. Beers, 71 Ala. 153; McNeill v. McNeill,- 36 Ala. 109; Teague v. Corbett, 57 Ala. 537; Blahcy v. Blahcy, 9 Ala. 391; Dement v. Dement, 13 Ala. 140.</p>

Tried before the Hon. S. IT. Sprott. The proceedings in this case were instituted by the appellant, the Mobile & Ohio Railroad Company, filing a petition addressed to the probate judge of Tuscaloosa County asking for the condemnation of a right of way through the lands of the appellee, William Hester. On the hearing of the application, there was a decree of condemnatiaon and commissioners appointed to assess the damages.

Heard before the Hon. Thos. Cobbs. The bill in, this case was filed by the appellee, Mary P. Cruiksliank, against the appellant, Louis A. Howser: The bill as amended averred the following facts: On December 10, 1881, M. T. Smith and his wife, Mary Smith, executed a mortgage to one Pat Fahey to secure a promissory note for the sum of five hundred dollars made by said M. T. Smith and Avife to Pat Fahey on November 1,1881, and payable one day after date.

Tried before the Hon. John H. Bisque. This suit, was originally brought in the name of A. P. Ah)well, It. B. Vowell and J. A. Vowell, against T. W. Lister, and claimed of the defendant damgaes for wrongfully taking the following property, viz.: “One 15 horse power boiler and Peerless engine, .one saw mill and fixtures, and 26,01)0 feet of lumber.” The complaint was amended by adding after the name of T. AV.

Tried before the ITon. John H. Disqxje. This action was brought by the appellee, J. G. Elrod, against the appellant, H. D. Smith, and was instituted on February 1, 1896.' The plaintiff sought to recover on four separate promissory notes, each of which was executed on December 8, 1893, and payable September 10, 1894, October 10, 1894, November 10, 1894, and December Í0, 1894, respectively. The defendant pleaded several pleas.

Heard before the Hon. Jebe N. Williams. The bill in this case -was filed by the appellants against the appellees. The averments of the bill are sufficiently stated in the opinion. Held: so that it has become a settled rule iu this State, that stockholders, and they alone, can complain of irregularities, or non-compliance with statutory requirements in such cases made and provided. Simple contract creditors can not take advantage of any such matters.

Tried before the I-Ion. S. H. Speott. This action was brought by the appellant against the appellee. The facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence, the court at the request of the defendant gave to the jury the general affirmative charge in her behalf, to the giving of which charge the plaintiff duly excepted. There were verdict and judgment for the defendant.

Heard before the Hon. Jere N. Williams. The facts of the case are sufficiently stated in the opinion. cited Halter v. Green-lee, 1 Port. 222; Phelps v. Zuschlag, 34 Texas 371; Seib or v. Price, 26 Mich. 518; Hackett v. King, 6 Allen (Mass.) 58; 5 Amer. & Eng.

Heard before the Hon. Jeiie N. Williams. In 1888, J. W. Stephens, the husband of E. E. Stephens, made application to the British & American Mortgage Company, Limited, for a loan of money. The loan tvas granted and made to said J. W. Stephens, and to secure the payment thereof, a mortgage Avas executed by J. W. Stejihens and his Avife, E. E. Stephens, on certain lands Avliich belonged to and Avere oAArned by the wife, E. E. Stephens.

Heard before the Hon. James J. Banks. This was a bill in equity filed by J. LaMotte Morgan, tiie appellee, against Edmund W. Rucker and Thomas Seddon, aaJio are alleged to be resident citizens of Birmingham, Alabama, E. A. Uehling, who is alleged to be a resident of the city of NeAvark, in the State of New Jersey, James W. Miller and William H. Dryenforth, who are alleged to be resident citizens of the city of Chicago, in the State of Illinois, and the Fortimolite Metal…

Heard before the Hon. Jure N. Williams. The bill in this case ivas filed by the appellee, the Werth eimer-Swartz Shoe Company, a creditor of M. F. McBryde, against J. M. Collierand prayed to have set aside and vacated as fraudulent and void an attachment sued out by the appellant, J. M. Collier, against tlie said McBryde. Tlie material averments of the hill .are sufficiently stated in the opinion.

J. A. Bilbro. This Avas a statutory action of ejectment, brought by the appellant, J. L. Jackson, against the appellee, W. L. Singleton, to recover certain lands specifically described in tlie complaint. The facts of the case are sufficiently stated in tlie opinion. Upon tíie introduction of all tlie evidence, the court at tlie request of the defendant gave the general affirmative charge in his behalf, to the giving of which charge the plaintiff duly excepted.

Tried before the Hon. J. W. Postee. At the Spring Term, 1897, of the circuit court of Henry county, Butler & Stevens, the appellants, brought an action against Nicholson, Blount & Company, seeking to recover upon certain promissory notes. The plaintiffs sued out a writ of garnishment, which was served upon one J.. R. Faircloth.

Heard before the Hon. William H. Simpson. The facts of the case are sufficiently stated in the opinion. — Before a foreign administrator of a non-resident is entitled to administer upon the assets of his intestate’s estate in Alabama, he must comply with the requirements of the statute, (Code of 189(5, § 359).

Heard before the Hon. A. D. Sayre. The bill in this case was filed on February 7,1898, by the appellees, Eiseman Bros. & Co., a partnership, and the Wertheimer-Swartz Shoe Company, a corporation, against Sam Rice and Sam Trum.

Heard before the Hon. Thomas Cobbs. The hill in this case was filed by the appellant, the Birmingham Railway & Electric Company, against the appellee, the Birmingham Traction Company; and prayed for an injunction restraining the defendant, its officers and agents, from erecting or causing to be erected, an oyer-head trolley wire across the trolley wire of the complainant at Eighth Avenue and 24th Street in the city of Birmingham.

Tried before tlie Hou. John Moore. This action was brought by the appellee, Thomas B. Ward, Jr., against the appellant, Samuel S. Webb; and counted on a promissory note executed by the defendant on November 12, 1896, and payable to the plaintiff on February 7, 1897. The defendant filed three pleas. In the first plea, the defendant “for answer to the complaint filed therein, pleads and says: That during the year 1896 the defendant and one W. IT.

Tried before the Hon. J. A. Bilbro. This action was brought by the appellees, L. A, Daniel and J. M. Daniel, against the appellant, The Chattanooga Southern liailroad Company, to. recover damages for the .alleged negligent killing of an ox. The. only rulings of the trial court, Avhich are assigned as error in this court, are the refusal of the court to give the several charges requested by the defendant.

Tried before the Hon. J. W. Foster. This was a statutory action of detinue, brought by the appellant, Morris Adler, against the appellees, Prestwood & Knowles, for the recovery of certain trees which had been severed from the land which the plaintiff alleged belonged to him. The facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence, the plaintiff requested the court to give to the jury the general affirmative charge in his behalf.

Heard before the Hon. Thomas Cobbs. The facts of this case are sufficiently stated in the opinion. On the appeal prosecuted by the appellant, he assigns as error, 1st, “The court below erred in the decree appointing a receiver in this case.” 2d, “The court erred in not sustaining appellant’s objection to appointment of J. II.

Apubap from the Circuit Court of Montgomery . Tried before the Hon. John R. Tyson. This action ivas brought by the appellant, J. A. Thompson, against the Alabama Midland Railway Company, and was originally commenced in a justice of the peace court, in June, 1897. Upon judgment being rendered in the justice’s court in favor of the plaintiff, the cause was carried to the Circuit Court by appeal. The complaint contained two counts.

Tried before the IIon. John H. Disqhe. This was a common law action of ejectment, brought by the appellee, the Equitable .Mortgage Company, against the appellants, James McClendon and Jonathan Hazel. In the complaint, the demises were laid in the Equitable Mortgage Company and the Equitable Security Company. The defendant Hazel filed a motion in which he asked that the defendant, McClendon, who was his landlord, be made the sole party defendant.

Tried before tlie Hon. A. L>. Sayre. Tlie State on tlie relation of W. M. Burgin, clerk of tlie Criminal Court of Jefferson County, filed bis petition addressed to tbe Judge of tlie City Court of Montgomery, in Avliicb be alleged tliat in tbe Criminal Court of Jefferson County, one Collins was indicted and tried for murder, was convicted of murder in tbe second degree and sentenced to imprisonment in tbe penitentiary for a term of ten years, and tliat at tbe time of tbe…

Heard before the Hon. Ti-iomas H. Smith. The bill in this case was filed by the appellant, Alfred Fleming, against the appellee, Annie S. Moore, under the provisions of sections 809 to 813 of the Code of 1896, to compel the determination of claims to real estate.

AppisaTj from the Circuit Court of Morgan. Tried before the Hon. II. O. Spbakio. The facts of the case are sufficiently stated in the opinion. — The note sued on in this case was without consideration and can not be enforced. — Bishop on Contracts, .§ § 77, 78. “The assumption of a supposed liability, which in truth has not a foundation is not a sufficient consideration for a valid promise — a promise upon which an action can be maintained.” — Maull v. Vauglm, 45 Ala. 134.

Heard before the Hon. W. L. Parks. The bill in this case was filed by the appellee, the Southern Fertilizer Company, against J. L. Henry, W. C. Henry and J. L. Pollard, as assignee of I. L. Henry & Brother, a partnership composed of J. L. Henry and W. C. Henry.

ArrEAr, from the Circuit Court of Crenshaw. Tried before the Mon. John Tí. Tyson. This was an action of trover, brought by the appellant, J. W. Beall, against Janies Folmar Sons & Co., to recover damages for the alleged conversion of 20 bales of cotton. The defendants pleaded the general'issue and the following special ideas: “Second. That'the said property, for the conversion of Avhich this suit Avas brought, Avas neArer the property of the plaintiff. “Third.

Tried before the Hon. John It. Tyson. This action was brought by the appellant, James F. Jones, against the appellee, the Capital City Insurance Company; and counted upon a policy of insurance, which was issued to one J. P. Etheridge, assignee, by the defendant, and insured a two-story brick building from loss by fire, which said building was destroyed.by fire during the existence of the policy. The defendant filed five pleas. The first was the general issue.

Tried before the Hon. II. C. Speaks. This action was brought by the appellee against the appellant, to recover damages for a mistake committed by defendant in transmitting a telegram from plaintiff at Forkville, Morgan County, Alabama, to the Birmingham Exchange Company at Birmingham, Alabama.

Tried before the Hon. J. A. Bilbiio. On April 10, 1897, the appellee, Thomas J. Wofford, Jr., filed in the circuit court of Etowah county, a motion asking the court to set aside the sale of certain lands made by the sheriff under the levy of an execution on March IS, 1895, -which execution was issued on a judgment recovered by the appellant against the movant, alleging in said motion that prior to the levy of said execution, the movant had filed in the probate office of…

Tried before the Hon. J. M. Carmichael. This was an action of detinue brought by the appellee, T. L. Head, against the appellant, J. E. Griffin, to recover a boiler and engine, a pair of scales commonly used for weighing wagons, a gin with condenser and feeder and the belting and shafting used in a ginnery, and one Nance self-packing cotton press.

Tried before tlie Hon. W. W. Kirkland, Special Judge. The appeal in this case is taken by the defendant in an action of detinue, from a judgment rendered in said suit in favor of the plaintiff. The material facts of the case are sufficiently stated in the opinion.

Tried before the I-Ion. N. I). Denson. This was an action brought by the appellee, John D. Denny, against the appellant, Charles E. Finney; and counted upon an instrument under seal executed by the defendant to the plaintiff. The defendant filed the following pleas: “1. That he has fully paid off and discharged the instrument sued on before the commencement of this suit. “2.

Tried before the Hon. J. W. Foster. This was an action of trover, brought by the appellee, R. L. Harmon, against J. B. Holst & Co., to recover damages for the alleged conversion by the defendants of a certain number of bales of cotton. The defendants pleaded not guilty and by special plea that they were bona fide purchasers of the cotton, the subject matter of the suit, for value, without notice of the plaintiff’s claim.

Tried before the Hon. J. M. Carmichael. On December 28, 189G, the appellants, Inman, Smith & Co., commenced a suit by attachment against one J. Oppenheimer. The writ was executed by levying, on that day, upon certain merchandise in a storehouse in Enfatúa occupied by the defendant. After the levy, the appellee, IT.

Tried before the Hon. H. A. Sharpe. This action was brought by E. L. Bush and J. W. Prewitt, as administrators of the estate of Ora L. Bush, deceased, against the Southern Railway Company; and claimed $25,000 damages for tlie alleged wrongful killing of plaintiff’s intestate,by being run over and crushed by a locomotive engine operated on the defendant’s railroad by the defendant’s employes. The complaint, as amended, contained fifteen counts.

Heard before the Hon. William H. Tayloio. The bill in this case was filed by the appellees, Alvin M. Hill, J. O. Williams and W. M. Davis, against the Christian & Craft Grocery Company; and sought the final settlement and accounting of a co-partnership, which had formerly existed between the complainants and the defendant, and that a decree be rendered in favor of the complainants for such amount as' might be due them after such accounting.

Tried before the lion. James W. Lapsley. This was a statutory action of ejectment, brought by the appellant, the American Savings & Loan Association, against the appellee, John Smith, to recover a certain lot specifically described in the complaint. The trial was had on issue joined upon the plea of the general issue.

Tried before the Hon. T. J. Burton. The bill in this case was filed by the appellees, W. C. Barclay, who resides in Marshall county, Alabama, and W. W. Buchanan and J. T. Buchanan, each of whom resides in the State of Texas, against the Eudora Mining & Development Company, F. 1L. Sprague, L. D. Phillips, Win. M. Knight and William Neindorff.

Tried before the Hon. A. T. Borders, Special Judge. This was a statutory action of ejectment, brought by the appellants against the appellees. The defendants pleaded the general issue. The plaintiffs claim title to the land sued for under a deed executed by one E. M. King on January 1, 1S79, conveying to the plaintiffs the lands sued for. The jilaintiffs were shown to be the illegitimate children of said E. M. King.

' Heard before the Hon. William H. Tayloe. The bill in this case was filed on January 26, 1897, by Samuel Carson, Winter Carson, John McMillan, Ed Press, Josiah Squire and William Aiken, against Sam Jones and J. B. Liddell & Co., a partnership composed of John B. Liddell and William Henderson.

Tried before the Hon. John Moore. This action was brought by the appellant, James Lucas, against the appellee, the Southern Railway Company, as a common carrier, to recover damages for the defendant’s alleged negligent failure to transport the corpse of plaintiff’s infant child from Blocton in Bibb county, to Aldrich, in Shelby county, on the line of the defendant’s railway.

Appeal front tlie Circuit Court of Slielby. Tried before the I-Ton. George E. Brewer. This action Avas brought by the appellee, Alice E. Finley, against the Birmingham Dry Goods Company, a corporation, and the sureties on an attachment bond, to recover damages for the breach of said bond.

Arpeal from the City Court of Birmingham. Tried before the Hoñ. W. W. Wiijkerson. The appellee, Estelle Stollenwerck, on September 7, 1896, recovered a judgment in the city court of Birmingham against E. A. Smith, for $545.90 and costs. On March 24,1897, the plaintiff in said judgment sued out a writ of garnishment against the appellant, the Georgia & Alabama Railway. On March 30, 1897, the writ of garnishment was served upon said garnishee.

Heard before the Hon. William H. Simpson. Held: to the receiver of the Sheffield hank. In the summer of 1889, after the debt to the bank had been contracted, and after the mortgage executed to secure the same had been duly recorded, H. H. Brumbach applied to the American Building & Loan Association, appellee, for a loan of $5,000, offering as security therefor his stock in said…

Heard before the 1-Ion. J. R. Dowdell. The facts of the case are sufficiently stated in the opinion. — The chancery court, after the adjournment of the term at which a decree of dismissal for want of prosecution (not being upon the merits), has the power to set aside such decree and re-instate the cause upon .timely application. — Trev-illian v. Knight, L. R. 1 H. L. 30; Millspaugh v. McBride, 7 Paige Ch. Rep. 509; Day v. A llaire, 31 N. J. Eq. 315; Tripp v. Vincent, 8 Paige…

Tried before the Hon. Geoege E. Beewee. The proceedings in this case arose upon a contest of a claim of exemptions. The appellee, R. L. Lucas, recovered a judgment against the appellant, Mrs. Minnie H. Gist, who was then Mrs. Minnie Hardy, in the circuit court of Shelby county, and upon this judgment an execution ivas issued and levied upon the property in question.

Heard before the Hon. A. H. Merrill, Special Chancellor. The facts of the case are sufficiently stated in the opinion. — A summary judgment rendered against an administrator de bonis non can not be sustained. A person who is not a party to the pending suit can not be proceeded against summarily in‘said suit. Passmore, as administrator de bonis non,had never been made a party to the pending litigation.

Tried before the Hon. James J. Banks. This was a statutory action of detinue, brought by the appellant, Ike Bufford, against the appellee, G. W. Raney, to recover a horse. The defendant pleaded the general issue.

' Tried before the Hon. James W. Lapsley. This action Avas brought by the appellee, E. It. Mc-Whorter, against J. F. Davis and J. L. Davis; and counted upon a bond executed by the defendants on July 14,1897, payable to the plaintiff November 1,1897. The facts necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

Tried before the Hon. John Moore. This was an action of detinue brought by the appellee, Allen P. Howison, against the appellant, Frank Nelson.

Tried before the ITon. J. M. Carmichael. This action ivas brought by the appellant, P. IL Morris, against the appellee, the Eufaula National Bank.

Tried before the Hon. James J. Banks. This action was brought by the appellee against the appellant, to recover damages alleged to have been sustained by the plaintiff, by reason of the failure of the defendant to keep in repair a bridge across a public highway. ■ The appeal is from a judgment overruling the demurrer interposed by the defendant to the plaintiff’s complaint, and this question is the only one presented for review.

Heard before the Hon. Jerio N. Williams. The facts of the case are sufficiently stated in the opinion. — This being a suit for redemption under a mortgage, receivers having been appointed prior to the bringing of suit, are necessary parties defendant. Beach on Receivers, § 711; Kirkpatrick v. McElroy, 41 N. J. Eq., 539.

Heard before the Hon. William 1-1. Simpson. The bill in this case was filed November 26,, 1898, by the appellee, the Nashville, Chattanooga & St. Louis Kailway against the appellants, Xsham D, Hobbs and Mary Willie Hobbs.

Heard before the Hon. W. W. Wilkerson. The bill in this case was filed by the appellee, Allen Crowell, against the appellant, George B. Bates; and its averments are substantially as follows: That complainant, desiring to purchase a horse belonging to the Heidt-Nelson Coal & Lumber Company, and it having agreed to sell him to complainant for the sum of $50, which was a reasonable value, and complainant being very indigent and without means to obtain the money for that…

Heard before the Hon. William H. Simpson. On the 18th day of May, 1895, /. M. Johnson died in Lauderdale county, Alabama, at about the age of 78 years. His children who are living or who left descendants are M. C. Johnson, T. W. Johnson, John O. Johnson and Nancy J. Whitten. M. O. Johnson is dead and his only descendants are the infant appellees, Beulah and Maud Johnson. T. M. Johnson is also dead and his only descendant is Selinah E. McFall.

Tried before the Hon. John C. Anderson. ■ The proceedings in this case were had upon the contest of a claim of homestead exemption’. After the levy of a writ of attachment in favor of the appellants, Land & Rentz, against the appellee, the latter interposed a homestead claim to the lands so levied upon. To this claim of homestead exemptions the plaintiffs filed a .contest.

Tried before the TIon. John Mooiie. This was a statutory action of ejectment, brought by the appellee, Samuel F. Alston, against the appellants, to recover certain lands specifically described in the complaint. The record shows that all the defendants, except W. J. Wilson, filed the plea of “not guilty,” and there does not appear that there was any plea filed by said W. J. Wilson.

Tried before the Hon. J. W. Foster. This Avas a statutory trial of the right of property and arose in the folloAving manner: The appellant, P. N. Hickman, recovered a judgment against one Bullard. Upon this judgment execution was issued and levied upon a certain lot of lumber Avbich was in the possession of said Bullard.

<p>Appeal from the Montgomery City Court, in Equity.</p> <p>Heard before tlie Hon. A. D. Sayre.</p>

<p>Appeal from the Circuit Court of Henry.</p> <p>Tried before the Hon. J. C. Richardson.</p>

<p>Appeal from Jefferson Probate Court.</p> <p>Heard before the Hon. M. T. Porter.</p>

<p>Appeal from Tallapoosa Circuit Court.</p> <p>Tried, before the Hon. N. H. Denson.</p>

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

<p>Appeal from Montgomery City Court, in Equity.</p> <p>Heard before the Hon. A. D. Sayre.</p>

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

<p>Atpeal from Mobile Circuit Court.</p> <p>Tried before the Hon. William S. Anderson.</p>

<p>Appeal from Monroe Circuit Court.</p> <p>Tried before the Hon. John C. Anderson.</p>

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

<p>Appeal from Jefferson Criminal Court.</p> <p>Tried before the 1-Ion. Samuel E. Greene.</p>

<p>Appeal .from Birmingham City Court.</p> <p>Tried before the Hon. W. W. Wilkerson.</p>

<p>Appeal from Jefferson Criminal Court.</p> <p>Tried before the Hon. Samuel E. Greene.</p>

<p>Appeal from the Birmingham City Court.</p> <p>Heard before the Hon. W. W. Wilkeeson.</p>

<p>Aureal from Montgomery City Court.</p> <p>Tried before the Hon. A. Í). Sayre.</p>

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

<p>Appeal from Bridgeport City Court.</p> <p>Tried before the Hon. S. W. Tate.</p>

<p>Appeal from Colbert Circuit Court.</p> <p>Tried before the Hon. Thos. R. Roulhao.</p>

<p>Appeal from Chancery Court of Jefferson.</p> <p>Heard before the Hon. John C. Carmichael.</p>

<p>Appeal from Marengo Circuit Court.</p> <p>Tried before the Hon. John C. Anderson.</p>

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

<p>Appeal from Cleburne County Court.</p> <p>Heard before the Hon. T. J. Burton.</p>

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

<p> Petition for Mandamus. </p>

<p>Appeal from Shelby Circuit Court.</p> <p>Tried before the Hon. George E. Brewer.</p>

<p>Appeal from Hale Chancery Court.</p> <p>Heard before the Hon. Thos. H. Smith.</p>

<p>Appeal from Gadsden. City Court, in Equity.</p> <p>Heard before the Hon. John H. Disqtje.</p>

<p>Appeal from Montgomery City Court, in Equity.</p> <p>Heard before the Hon. A. D. Sayre.</p>

<p>Appeal from Dale Chancery Court.</p> <p>Heard before the 1-Ion. T. M. Espy, Special Chancellor.</p>

<p>Appeal from Jefferson Circuit Court.</p> <p>Tried before the Hon. E. K. Campbell, Special Judge.</p>

<p>Appeal from Lawrence Circuit Court.</p> <p>Tried before the Hon. H. C. Speaks.</p>

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

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

<p>Appeal from Selma City Court.</p> <p>Tried before tbe Hon. J. W. Mabry.</p>

<p>Appeal from Dale Circuit Court.</p> <p>Tried before the Hon. A. A. Evans.</p>

<p>.Appeal from Morgan Circuit Court.</p> <p>Tried before the Hon. H. C. Speaks.</p>

<p>Appeal from Chancery Court of Conecuh.</p> <p>Heard before the Hon. W. L. Parks.</p>

<p>Appeal from Birmingham City Court.</p> <p>Tried before the Hon. J. W. Bush, Special Judge.</p>