Volume 124 — Alabama Reports

Tried before Hon. T. J. Burton. The facts of this cáse concisely stated are these: The defendant and several companions met Robert I-Iunnicutt and several associates in the town of Heflin. The defendant’s company were boisterous and quarrelsome. Hunnicutt knocked down one of them. A “scuffle’ ensued. But this was settled and the two parties made friends. Again the defendant’s party became abusive, and again Hunnicutt knocked down the same man.

Tried before Hon. S. E. Greene. The facts are fully stated in the opinion.

Tried before Hon. S. H. Sprott. Marion Bankhead was indicted for the murder of Doug Wells. The evidence tended to show that the defendant and one Dewitt Fleming in going to church had to pass by the house of the deceased. When near the house defendant said he wanted to stop and see the dec-eased about some reports or tales he had been telling. Fleming told him not to stop, but he said, he would stop.

Tried before Hon. A. A. Evans. The facts are sufficiently set out in the opinion. The part of the oral charge excepted to is as follows: “Mercy does not belong to you. No question of mercy, sentiment or anything else resides with you except the question as to whether or not you believe from the evidence beyond a reasonable doubt that the defendant is guilty.” The following are the two charges refused to the defendant: “1.

Tried before Hon. S. H. Spbott. Tbe facts in tliis case are set out in full in tbe opinion. A number of charges were requested by tbe defendant, but it is unnecessary to copy them all in full. One, 2, 4, and 8 request acquittal if tbe jury believe tbe defendant was in peril of bis life, but they ignore tbe elements of necessity to retreat and freedom from fault in bringing on tbe difficulty, contained in tbe doctrine of self-defense.

' Tried before Hon. J. J. Mayfield. The facts sufficiently appear in the opinion. contended that the' court abused its discretion in that three days from (1) arraignment and appointment of-counsel, and. (2) days of trial with inexperienced counsel, is not reasonable time to get witnesses and prepare defense, citing, 6 Ency. PI'. & Pr., 1 ed. p. 651; State v. J ones, 12 Mo. Ap. 93; 37 La. An. 781. (2).

Tried before Hon. J. W. Foster. ■ General Foster, Tom Miles and Eliza Brunson were ■jointly indicted for the murder by poisoning of June Brunson, who was the husband of Eliza. There was a severance as to General Foster, and the other two were jointly tried. Prom the judgment of conviction Eliza alone appealed.

Tried before Hon. J. C. Richardson. Steve Welch and Maston Welch were jointly tried for assault with intent to murder. Maston Welch was acquitted. The' charges refused to the defendants are as MIoavs: “2. Before the jury can reach a conviction in this case for assault Avith intent to murder, they must believe from the evidence beyond a reasonable doubt and to a moral certianty that the defendants with malice aforethought and with premeditated design tried to kill Cox.

Tried before Hon. A. A. Evans. The defendant was convicted of arson in the first degree for burning an inhabited dwelling which was the property of T. O. Smith. The evidence was circumstantial, and the circumstances proven are set out' in the opinion.

Tried before Hon. A. D. Sayre. Daniel Thomas and Dave Williams were jointly indicted for the murder of Albert Harris. Daniel Thomas moved to quash the venire, but the causes assigned therefor and the rulings thereon are sufficiently set forth in the opinion.

Tried before Hou. A. A. Evans. Scott Turner was indicted for stealing money consisting of greenbacks and silver, the property of James Bolling. The defendant demurred to the indictment, because the value of the paper- currency ivas not alleged, because it failed to allege the person from whom the property was stolen or the place whence it was taken, •because it failed to allege the owner of the property stolen.

Tried before Hon. J. R. Tyson. Abb Lett ivas indicted for larceny. As a predicate for the introduction of the evidence of a Avitness given on the preliminary trial of the defendant in this case, the state piwed that about tAVO months before the present trial the Avitness aauis seen in Pensacola,.

Tried before Hon. A. D. Sayre. George Pierce ivas convicted of larceny for stealing a bale of cotton, the property of J. W. Abercrombie.

Tried before Hon. A. A; Evans. Dan Elder was indicted for incest. The indictment charged that the defendant had sexual intercourse with Paralee Elder, who was related to him in such degree of consanguinity or relationship as made the intercourse incestuous. There was evidence tending to prove that the defendant was the legitimate son of Jim Elder, and that Paralee was the legitimate daughter of Rachel Elder, and that Rachel was the illegitimate daughter of Liddie Jones.

Tried before Hon. G-. K. Miller. Tbe facts appear in tbe opinion. — When jury trial is demanded the defendant must be' indicted before he can be tried. — Ex parte Reeves, 96 Ala. 33; Ex parte Qibson, 89 Ala. 176; Clarke’s Case, 46 Ala. 307. (1). Necessity for indictment under the law affecting this case. — McClelland’s Case, 118 Ala. 122. (2).

Tried before Hon. J. C. Wood. The facts are sufficiently stated in the opinion. cited Joyner v. State, 78 Ala. 448; Beeves v. State, 96 Ala. 33; Collins v. State, 88 Ala. 212; Copeland v. State, 97 Ala. 30. cited to show that the demurrer ivas bad, Copeland v. State, 97 Ala. 31; Tennyson v. State, 78.

Tried before Hon. A. D. Sayre. No facts necessary to be stated. Charge 2 refused to the defendant, is as follows: “If the confession of the defendant as narrated by the witnesses for the State were obtained by the witnesses R. I. Taylor and W. H. Taylor by a threat or promise of reward on their part, then gentlemen you should carefully scrutinize the testimony of the witnesses in reference to that confession.” cited, Taylor v. State, 118 Ala. 86; Young v. State, 68 Ala. 577.

<p>Appeal from order of Hon. John C. Anderson denying petition for habeas corpus.</p> <p>The facts are sufficiently set out in the opinion.</p>

<p> Prosecution for Cruelly Killing a Dog. </p> <p>1. Cruelty in Joining a domestic animal; what is. — The mere act of killing a domestic animal without more is not punishable under section 5093 of the Code. The killing.must be attended with- some elements of cruelty such as are mentioned in the statute, it not being the purpose of the statute to punish for any offense against the owner of the property, but- for the prevention of cruelty to the animal itself.</p>

Tried before Hon. A. A. Evans. Jolm Love a white man was convicted of living • in adultery with Alice Pinckard, a negro Avoman.

Tried before Hon. G. E. Millee. There was evidence in this case tending to corroborate the witness Stockdale.

Tried, before Hon. H. J. Lancaster. ,,The facts necessary are stated in the opinion.

- Tried before I-Ion. A. H. Alston. The facts were .that the defendant was arrested by officers in his cabin, and on being searched a pistol was found concealed about his person. There was no evidence that he had at any time left the cabin with the pis tol or that any one had been present with him in the room except the officers when they went to arrest him. cited, Owen v. State., 31 Ala. 387. cited, Hammon v. State, 69 Ala. 248; Owen v. State, 31 Ala. 387.

Tried before Hon. E. B. Wilkerson. The defendant was tried by a jury and convicted. But no judgment Avas rendered in the case except a judgment of confession for the. fine and costs. cited Ayers v. State, 71 Ala. 11; Nichols v. State, 100 Ala. 23.

<p> Indictment for Carrying Concealed Pistol. </p> <p>1. Plea of misnomer; essentials •of. — A plea in abatement for misnomer of the defendant in an indictment is bad and subject to demurrer if it fails to negative the fact that the defendant was ever known or called by the name by which he is indicted.</p>

Tried before Hon. A. D. Saybe.' Tlie defendant was convicted and sentenced to the penitentiary, for forgery. He sued out the writ of habeas corpus to test the validity of the judgment of conviction. ' His contention was that' the indictment agdinst him was for forgery in the first degree and that the verdict ivas “guilty as charged in the indictment!7 and the sentence was for only thirty months, when the lowest sentence in first degree forgéry is ten years.

Tried before D. M. Powell, Esqu., Special Judge. The following charges were given by the court at the request of the State: 1. “The court charges the jury that .the State is not required to .prove the defendant’s guilt beyond a reasonable doubt and to a moral certainty, but only a reasonable certainty.” 2. “The court charges the jury that Joeanna Black-man is merely the informer, and she recovers nothing.

Tried before Hon. Samuel E. Greene. This is a mandamus proceeding to compel F. H. Benners, a justice of the peace of Jefferson county, to issue a warrant of arrest for one T. G. Hewlett for violating the terms of an act of the general assembly, approved February 5, 1897, and entitled “An act to prohibit bookmaldn or pool-selling on horse racing and other forms of gambling.” The justice held the act to be unconstitutional and refused to issue the warrant on proper application…

<p>Appeal from Jefferson Circuit Court.</p> <p>Tried before Hon. A. A. Coleman.</p> <p>The facts sufficiently appear in the opinion.</p> <p>cited, Code, § 4558; Dent’s Case, 42 Ala. 514; Lee v. Smiley, 16 Ala. 773; Green County v. Hale, 61 Ala. 72; BiVbro v. Drakeford, 78 Ala. 318.</p> <p>cited, Trapp v. State, 25 So. Rep. 194; J ackson County v. Derrick, 117 Ala. 348; State ex rel. Mobile Co. v. Stone, 69 Ala. 206.</p>

<p> Indictment for Arson. </p> <p>1. Trades when may he proven. — If on the trial of a defendant for arson it appears in evidence that the defendant had a large foot, and that on the evening of the fire and shortly before it occurred, he started barefoot toward the house which was burned, and that at that time it was his intention to burn the house, it is competent for the State to show that on the next day afer the fire large barefooted tracks pointing in the direction to the pla.ee where the barn had stood and in line from the point whence the defendant had started the evening before to the house subsequently burned, were found in a field about a quarter of a mile from the site of shid house. While the probative force of this evidence in the absence of other evidence connecting the defendant with the tracks is little or nothing, it is for the consideration of the jury.</p> <p>2. Bounds of legitimate argument; when transcended. — A statement to the jury by the solicitor, in trying a, defendant for arson, that “the defendant should have had Jim Ethridge present to testify that Elisha Leverett had not told him that defendant’s wife had rented the house that was burned, and that he had not told his father (defendant) so at Henrietta Clemons’ on the evening before the house was burned, if such was the fact,” transcends the bounds of legitimate argument, and should be excluded if properly and seasonably brought to the attention of the court. (Tyson; J., dissenting.) Objection to remarks of solicitor to the jury is properly and seasonably brought to the attention of the court and its ruling invoked thereon, by request on the part of the defendant at the close of the argument for an instruction calling attention to the argument and directing the jury that it was not matter on which the solicitor could legitimately comment and they should not consider it in making up their verdict. (Tyson and Si-iabpe, JJ., dissenting.)</p> <p>3. Affirmative charge; when considered as not seriously asked. Where there is no room for saying that there was no evidence before the jury tending to show that the defendant was not guilty as charged in the indictment, it is hardly conceivable that counsel for the defendant are serious in their contention that the affirmative charge should have been given for the defendant.</p>

'Appeal from Gadsden City Court. Heard before Hon. John H. Disque. The bill in this case was filed by appellee.

Tried, before Hon. W. W. Wilkerson. This case was brought by Florence B. Bobbins, ah infant nineteen months old, against the Highland Avenue & Belt Bailroad Co. to recover damages for injuries caused by a train of the defendant. Of the counts of the complaint on which issue was joined, all except two, alleged that the injuries Avere inflicted while the plaintiff Avas on the tract of the defendant’s road.

Heard before Hon. W. L. Park. John A. McLure, as the administrator of Margaret Moore, and Flora McLure, brought this suit against the heirs at law of James C. Moore. Margaret Moore was, in her life time, the widow of said .James Moore, and Flora McLure was his minor child at his death in 1892.

Heard before Hon. W. H. Simpson. J. B. Brewer brought his bill against George Arantz & Brothers to cancel a mortgage and for injunction to prevent the sale of the property mortgaged. The mortgage was executed to secure the payment of notes by the complainant to the defendants which were made for the purchase money of certain saw logs purchased by complainant from defendants. The bill alleges fraud and deceit on the part of defendants.

Heard before 1-Ion. W. II. Tayloe. The facts of this case are stated in the opinion. (1). A municipal cor pora ti on cannot give a valid permission to any one to occupy the streets or sidewalks with continuing erections, or other obstructions, without express poAver conferred, by statute in clear and unequivocal terms. — (/... v. Fisher, 2 Crunch 390; Commonwecilth v. Rush, 1 4' Pa. 193; (lushing v. Boston, 128 Mass. 330; Daly v. Qa. Bó. R. R. On., 12 Am.

Tried before Hon. Wm. S. Anderson. The case is fully set out in the opinion. in their argument to show that the surety on the bond of the tax collector was not liable for defaults and misappropriations of the tax collector occurring prior to the execution and approval of the bond upon Avhicli he Avas surety, the folloAving authorities. — Randolph v. Billing, 115 Ala. 682; Governor v. Robbins, 7 Ala. 79; Dumas v. Patterson, 9 Ala. 484; Townsend v. Gibson, 14 Ala.. 334;…

Heard before Hon. W. II. Simpson. The case is stated in the opinion. It need only be further stated thát the partial settlement of James II.

Heard before Hon. Jure N. Williams. The bill is by Lowenstein Bros, and other creditors of H. C. Brooks & Co., a firm composed of I-I. C. Brooks ami W. D. Kirby. It seeks to set aside as fraudulent a conveyance made by Brooks to his wife, Ann M. Brooks, and to subject the property so conveyed to their debts. Some of the complainants were judgment creditors of Brooks & Co., and the others were simple contract creditors.

Tried before Hon. R. B. Kelly. Williams brought this bill against Rouse to redeem certain land sold under mortgage and bought by Rouse. Tli’e mortgage was executed to Bouse by one Oalhouii McQueen, and contained power of sale and authority to mortgagee to become purchaser. Bouse went into possession of the property after his purchase and made permanent improvements. He also received an amount of money for rent of the place.

Aiteal from Mobile Chancery Court. Heard before Hon. W. H. Tayloe. The facts are stated in the opinion. (1). The unauthorized construction of a railroad in a street is a public nuisance that may be enjoined People v. Neio I7or7c/43 Barb. 73; 8cheurmeirer v: 8t. Paul & P. B. Co., 10 Minn. 82; Stoioers v. Pos. Tel. Co., 9 So. Rep. 357. (2). And injunction may be obtained by any person aaJio may injured. — Mayor &c. v. Rogers, 10 Ala. 47; Whaley v, Wilson, 112 Ala, 629. (3).

Tried before Hon. J. M. Carmichael. This is an action brought by Robert Lamb by next friend against the Central of Georgia Railway Company, and seeks to recover damages for injuries alleged by the plaintiff to have been caused to him while in the employment of the defendant, by another employé of the company. The plaintiff was working with A. B. Coleman, who had charge of an extra force of hands.

Lauderdale Circuit Court. Tried before Hon. Thos. R. Roulhac. Miles White mortgaged his homestead to C. Smith. His wife signed the mortgage, and her separate acknowledgment was taken. White died. The mortgage was foreclosed and John W. McIntyre became the purchaser at the foreclosure sale, and received a deed to the property. Martha E. White, the widoAV of Miles White, brought this suit to recover the possession of the property.

Heard before Hon. W. L. Park. This cause is a suit in equity brought by the Dunham Lumber Company against Holt. The purpose of the bill was to set aside the award of arbitrators and to compel the allowance of a set-off against the award. Hole brought suit against the Lumber Company in the circuit court-to recover certain sums alleged to be due him from the company by account extending over several years.

I leard before Hon. J. R. Dowdell. The bill of complaint in this cause was brought by Allen P. Howison against E. E. Jackson and W. H. Jackson to enforce the specific performance of a contrae! The bill was amended, and to it as amended a demurrer was interposed. The demurrer was overruled.

Heard before Hon. J. C. Carmichael. Bill in equity by Blount county against Self and the sureties on his official bond as treasurer of said county, for an accounting and for the enforcement of lien. The opinion states the facts. — The sureties on both bonds were properly joined in one suit. Jjott v. Mobile County, (59 Ala. 697; Timberlahe v. Dallas County, 54 Ala. 403.

Tried before 1-Ion. J. M. Foster, Special Judge. ' Tlie opinion fully states the case. — Tlie grant of a house passes the land on which it stands. — 3 Washburn Heal Property, p. 389; Dsty v. Currier, 98 Mass. 501; Allen v. Scott, 21 Pick. 25; Webster v. Potter, 105 Mass. 414; Woodman v. Smith, 53 Mo. 81; McMillan v. Solomon, 42 Ala. 358. (2).

Ai’i’HAij from Cherokee Circuit Court. Tried before Hon. J. A. Bile no. Action of trover by Cliessie Walker against S. 1). Moore and wife for the alleged conversion by the defendants of a piano. The defendants claimed no property in the piano, but were the bailees of W. J. McBee, who was the father of the plaintiff. The sole question considered by the court was whether or not the plaintiff was a competent witness in her own behalf.

Heard before Hon. Tilos. II. Smith. Lewis II. Rust brought bis bill to compel the Electric Lighting Company to deliver to him certain property described in the bill, and to have the legal title thereto declared to be in the complainant.

Heard before Hon. W. II. Simpson. Bill in equity by Koopman & Gerdes against W. E. Turrentine and his wife, and S. B. Bradley. Appeal from decree overruling demurrers to the bill. 'The facts are stated in the opinion. (1). Mortgage carries legal estate to the mortgagee, leaving equity of redemption to mortgagor. — Childress v. Monette, 54 Ala. 317; Atchison v. Broadhead, 50 Ala. 414. (2).

Heard before Hon. J. C. Carmichael. The facts are fully stated in the opinion. (1). Winton’s creditors had the right to subject the policy of insurance taken by him for the benefit of his father. The father occupied no better position tlian he would have occupied had the policy been payable to 'Winton and then transferred by him. — Fearn v. Ward, 80 Ala. 564; 'Drake v. Stone, 88 Ala. 133; Pinkston v. McLeinorc, 31 Ala. 308; Friedman Bros. v. Fennell, 91 Ala. 570; 50 - Pa.

Appear from Henry Circuit Court. Tried before Hon. J. O. Richardson. Action by The Raisin Fertilizer Company, a corporation, against Brown & Oakley on a promissory note executed by tlie latter to the former for fertilizers. The defendants by pleas set up that the fertilizers for which the note was given were not tagged before the sale, as required by the statute; and also that the plaintiffs had no license-to sell commercial fertilizers.

Tried before ITon. J. W. Foster. Mrs. Copeland executed two mortgages on the same property; one to French & Ramage and the second to James Murpliree, the plaintiff below in this .action. Mrs. Copeland’s son traded two of the mortgaged mules to the appellants, Henderson & Rainer.

Jerk N. Williams. Martin IT. Sullivan brought this bill against the Yait Kirk Land & Construction Company and others, under' the act of the legislature, “to compel the determination of claims to real estate, in certain cases, and to quiet the title to the same.’’ The defendants, Morris Adler and W. H. Knowles, answered by plea.' The plaintiff',!;]aimed title to the lands in controversy by certain tax decals executed to purchasers at tax sales of the lands as the property of…

Heard before Hon. W. H. Simpson. This bill Avas brought by William R. Moore as the administrator of the estate of Ella M. Donegan against Archibald Campbell individually, and as the executor of Mary P. Hice. The complainant died pending the suit, and it was revived in the name of Alfred Moore as the administrator do bonis non of Mary P. Bice. By her aau.11 Mary P. Bice made the defendant, Campbell, her residuary legatee and devisee.

<p>Appeal from Anniston City Court.</p> <p>Hoard before Hon. James W. Lapsley.</p> <p>Tlie facts are set out. in the opinion.’</p> <p>cited, Hollins v. Pollock, 89 Ala. 351; Wyman r. Campbell, 0 Port. 219; Exchange Nat. Bank v. Clements, 109 Ala.'270; '.Pctins v. McGlannahan, 52 Ala. 55; Ham ner v. Manon, 24 Ala. 480; Gandy r. Etate, 86 Ala. 20.</p> <p>— A statutory power conferred on a court of general jurisdiction is limited and special, and in its exercise its jurisdiction must appear on tlie face of the record. — Foster v. Geagner, 27 Ala. 397; Gimn v. Howell, 27 Ala. 663; Lamar v. Gunter, 39 Ala. 324. (2). No presumption in favor of a court'of general jurisdiction if it is apparent on the record that the court did not have jurisdiction. — Kahn v. Lebermaw, 95 Ala. 478; Dosier v. Joyce, 8 Port. 312; Slaughter v. Gunningham, 24 Ala. 296.</p>

AppeaXj from Montgomery Chancery Court. Heard before Hon. W. L. Parks.

Tried before Hon. W. S. Anderson. Luke A. Devlin sued the Baird Lumber Co. to recover a sum of.money claimed to be due him under a contract of employment, whereby he claimed the company agreed to pay liim ten per cent on all the goods which he sold as drummer for it; that his said commission was earned and became due as soon as he took the order for the , goods.

Tried before lion. J. A. Bilbro. The appellant sued the appellee to recover money paid to him as tax collector, under protest. The facts are stated in the opinion.

Heard before Hon. Jere N. Williams. Bill in equity by J. B. Long to settle the title to land. There were several defendants, but there was a decree pi'o 'eonfesso against all except Jacob Jones and Isham Russ. The complainant asserted title to the land in controversy through a deed executed by the sheriff of Henry county to James W. Balkam and a deed to himself from the administrator of Balkam. He also claimed- by adverse possession.

Tried before Hon. W. S. Anderson. Tlie facts are stated in tlie .opinion. — Statute of frauds apply to executed, not to executory contracts. — 7 Ala. 161; 51 Ala. 434; 60 Ala. 214; 71 Ala. •202; 82 Ala. 622; 96 Ala. 515; 100 Ala. 430; 105 Ala. .'585. cited Kling r. Tunstall, 109 Ala. 610; tí elf v. Kirkland, 24 Ala. 277.

Heard before Hon. Richard B. Kelly. The case is clearly stated in the opinion. — 'Complainant entitled to reformation of deed. — Kelly v. Payne, 18 Ala. 371. (2). Deed was presumptively fraudulent. — Clarice v. Malpas, 31 Rear. 80; Kennedy v. Kennedy, 2 Ala. 572, Gibson v. Carson, 3 Ala. 421. (3).

Tried before Hon. W. S. Anderson. Action by Mary A. Parley against Kate Murpliy and Joseph B. Webster on two promissory notes. The facts are stated in the opinion.

Tried before Hon. H. C. Speake. This action was by Deadman against Ward and others for alleged trespass.

Tried .before Hon. A. A. Coleman. The Martin & Hoyt Co. sued Walter Moore in detinue before a justice of the peace. The complaint did not state whether the plaintiff was a partnership or a corporation, or set out any names of persons composing the company. Judgment was rendered for the plaintiff and writ of restitution issued. The defendant obtained supersedeas and common law certiorari on his petition therefor, and the cause went to the circuit court.

Aitmoad from Colbert Circuit Court. Tried before Hou. Thomas R. Roulhao. Amanda R. East .brought this suit against Albert E. Simpson. The facts are stated in the opinion. — Unsigned paper not admissible as evidence.- — -Rice on Evidence, 2 Yol., p. 1359. — Unsigned paper admissible, 71 Ala. 509. (2). Tenant holding the place through rental period liable for stipulated rent.- — Smith v. Ingram, 90 Ala. 529.; Seals v. Edmonson, 71 Ala. 509.

Heard before the Hon. Wm. H. Simpson. Bill by J. B. Harrison against J. T. Porter and others to declare certain conveyances void as against the creditors of Porter.

Court. Tried before Hon. John É. Tyson. The facts are stated in the opinion. — Appellant had the fee simple title to the land sued for. — Wilkins v. Walker, 115 Ala. 590. (1). Exemptions determined by law in force at time of decedent’s death. Dar is r. Davis, 63 Ala. 298; Skinner r. Chapman, 78 Ala. 376. (2). Widow took only life estate. — Kilgore v.. Kilgore, 103 Ala. 614; DeAruumd v. Whittaker, 99 Ala-373; Munchus v. Harris, 69 Ala. 506.

Appear from Jefferson Chancery Court. Heard before 1-Ion. Thomas Cobbs. J. S. Reeves & Co. and others brought their bill as creditors of T. J. Estes to condemn to the payment of their debts certain money deposited in bank to the credit of S. C. Estes, wife of the debtor; and also to set aside as fraudulent a mortgage executed by Estes to the defendant, .Barrett, and a general assignment made for the benefit of his creditors to the defendant Tillman.

Tried before B. B. Bridges, Esq., Special Judge. Tins was a statutory real action brought by W. W. Pittman and others against William A. Pittman to recover possession of certain real property. The facts are sufficiently stated in the opinion.

Tried before Hon. J. B. Gaston. Tlie case is fully and clearly stated in the opinion. cited the following authorities: (1). On the matter of commissions to executors. — Goulcl v. Hays, 25 Ala. 432; Weilson v. Cook, 40 Ala. 512; Harris v. Martin, 9 Ala. 875; Potcell r. Potcell, 10 Ala. 914; Pryor v. Davis, 10 Ala. 125; In rc. 'Worthington, 22 N. Y. Sup. 19; In re. Richard,son, 23 N. Y. 978; 2 Williams on Executors, 871-1310; Allen c. Martin, 36 Ala. 330. (2).

Atteal from Colbert Circuit Court. Tried before Hon. Thomas It-. Rouliiao.

Tried before I-Ion. H. C. Speake. This was a statutory real action for the recovery of possession of a house and lot situated in the city of Huntsville, in which the appellant was plaintiff and the appellees were defendants. The material facts are, that Samuel H. Allison, the ancestor of the appellees, was seized in fee of the premises, for many years prior to and in 1867, residing thereon as his home, with his wife who survived him, and their children, the appellees.

<p> Motion to Htrike Bill of Exceptions from the Record. </p> <p>1. Bill of exceptions; when signed in vacation must show order of court in writing. — Where a bill of exceptions was signed after the expiration of the term of the court at which the cause was tried, and there is nothing in the record to show any minute entry or that an order was made in writing by the court in term time fixing the time within which the bill of exceptions might be signed, it will be stricken from the file on motion — the statement made by the presiding judge and signed by him that the bill of exceptions was signed “within the time allowed by the court” not being siifficient to show that such order was in writing. Code, § § 616, 617.</p>

Tried before Hon. John Moore. Mayer, Son & Co. sued E. B. Glass. The opinion sufficiently states the facts. — General charge should not have been given. — Anderson r. Timherlake, 22 So. 3?ep. 431. — Glass had no authority to bind his wife1, not having it in writing. — Strauss v. Glass, 18 So. Hep. 528; Scott v. Cotton, 91 Ala. G23.

The record does not' name-the presiding judge. William IT. Denson brought this suit against the First National Bank of Gadsden under section 5198 of the Revised Statutes of the United States, to recover back usurious interest paid by him to the bank on a loan of money to him.

Tried before Hon. Charles A. Senn. Ejectment by B. S. Watson as the administrator of Arthur Truss against Thomas L. Smith.

Tried before Hon. J. W. Foster. A. G-. Parker & Co. sued Boutwell & Son in trover for conversion of certain machinery claimed to be the property of the plaintiffs.

Tried before Hon. H. C. Speaks. Friedman Brothers & Schaefer sued B. B. Williams & Sons, and had garnishment to issue to the Cullman Building & Loan Association.

Heard before Hon. Jure N. Williams. Bill in equity by J. B. Mason against the American Mortgage Company of Edinburgh to redeem land sold under mortgage held by defendant against the complainant, and which lands, it is alleged, were purchased at said sale by the mortgagee. The only question considered in the opinion is the time within which mortgagor can disaffirm the sale and redeem from mortgagee land purchased by the-latter at his own sale.

Tried before Hon. W. W. Wilkerson. Action by W. H. Cook against Woodward Iron Company, a corporation, to recover damages for injury to bis son while he Avas an employé of the company. The complaint may be considered as brought under the Employer’s Liability Act, Code, § 2590, or as based on the common laAV right of the father, as stated in the opinion.

Tried before John H. Shbeeey, Esq., Special Judge. The facts are fully stated in the opinion. — The amendment of the complaint not allowable. — Leatherwood v. Suggs, 96 Ala. 383; Wise v. Falkner, 51 Ala. 359; 111 Ala. 257. (2). Attachment should have been dismissed on motion of defendant. — Hawkins v. Gill, 6 Ala. 620; Debar deleben v. Crosby, 53 Ala. 363. (3). Evidence of contract between Blankenship and Lee. .

Tried before Hon. T. J. Burton. John F. Hilton sued by attachment to recover on a promissory note executed to him by the Heflin Gold Mining Company, a corporation.

Tried before Hon. W. W. Wilkerson. This is an action in assumpsit by Wlieelock against the International Cotton Seed Oil Company. The suit was brought in the city court of Birmingham. The defendant was a corporation whose domicile and principal place of business were at Selma.

Tried before Hon. A. A. Coleman. The facts of this case are clearly set out in the opinion.

Tried before I-Ion. O. J. Semmes. Action of detinue by Hieronymus Brothers against J. W. Austill, for the recovery of the possession of certain pine piling. To the complaint the defendant set up by plea that the piling was cut from land in his possession by one Baird and that the cutting was done under a contract between defendant and Baird that the pilings were not to be moved until the stumpage and advances made by defendant to Baird were paid.

Tried before Hon. N. 1). Denson. V. B. Atkins sued out process of attachment against D. O. Savage. No facts need be stated, as the opinion clearly states the case.

Tried before Hon. J. W. Foster. L. Manassas qualified as the executor of J. Manassas. An execution issued in favor of the Eufaula National Bank against the personal estate of L. Manassas and was levied on certain goods in his possession. He interposed a claim in his capacity as executor and trustee.

Appeal, from Walker Chancery Court. Heard before Hon. Thomas Cobbs. Bill in equity by V. L. Guttery against John W. Bickerton and S. N. Morris to foreclose a mortgage executed by Bickerton to Morris, and by said Morris transferred to the complainant. There was decree pro confesso against Morris.

Tried before Hon. N. D. Denson. Action on account by Cray against Fuller. Defense, tbe statute of frauds, the defendant alleging that the account was not on his promise as an original .undertaking, but that the credit was given to one Whatley, and if defendant ever promised to pay it was not in writing and was a promise to answer for the debt or default of' another.

Heard before Hon. Thos. H. Smith. Bill by Henderson against Hosfeldt and others. The facts are stated in the opinion. The chancellor dismissed the bill for Avant of equity. Miller v. Craig, 83 Ky. 623; Dwwson v. Coodioin, 15 B. Monroe 439; Cosby v. Wickliff, same 202; Zingsen v. Kidd, 29 N. J. Eq. 516; Greeley v. DeCottes, 5 So.

. Tried before Hon. James J. Banks. Action by George S. Gaines against the Ya. & Ala. Coal Company on contract for mining coal. There were eight separate suits to recover monthly installments accruing under the contract. These were consolidated, and the plaintiff amended his complaint, the first count of which amendment covering all of the several claims specified in the original suits.

Tried before tlie Hon. A. D. Sayre. This suit was brought by D. W. Ford to recover of the Postal Telegraph Cable Company damages for injury caused by delay in delivering a telegram to him. The evidence tended to show that the plaintiff had made an agreement with the chairman of the street committee of Mobile to do work for the city; and the chairman was to notify him by telegram at what time to go to Mobile.

Tried before Hon. Jno. C. Anderson. W. E. Bailey and E. T. Bailey, as partners under the name of W. É. Bailey & Bro., brought this suit to recover certain land mentioned in the complaint. John A. Selden, one of the defendants, disclaimed as to the whole of the land. The plaintiffs replied that he was re, siding on the land at the commencement of the suit and continued so to reside, and ivas so residing at the date the plea was filed.

Tried before Hon. Charles A. Senn. The action was brought by Walker Ward, a minor, by next friend to recover damages from the Birmingham Bailway & Electric Company for injuries alleged to have been inflicted on him and for abusive and insulting-language used to him by the motorman of one of the cars of the company.

Tried before Hon. W. S. Anderson. John Henry sued John A. Kaune in justice court and garnisheed J. T. McNamara. On contest of answer judgment was rendered against the garnishee. He appealed to tlie circuit court. His answer of no indebtedness was there contested, and the issue found in his favor.

Appeae from Jefferson Chancery Court. Heard before Hon. Thomas Cobbs. The bill in this case was brought by William H. Sanders against Fannie A. Steele and others to establish a trust in certain real estate in the city of Birmingham, and also in a certain decree rendered by the chancery court of Jefferson county in favor of Fannie A. Steele against the mayor and aldermen of Birmingham, on account of damages to said real estate.

Tried before Hon. Thomas R. Roulhac. Tliis is a suit brought by F. E. Harte against Thornton Bates to recover an amount alleged to be due the plaintiff by contract Avith the defendant, and to enforce a mechanic’s lien for the same. The defendant demurred to the complaint so far as it set up a mechanics’ lien on the ground that, the work done by plaintiff Avas not for an improvement for Avhicli the statute gives a lien.

.Appear from Geneva Circuit Court. Tried before I-Ion. J. W. Foster. . This was an action of detinue by N. C. Cotton against Barnett for the recovery of a horse, and damages for its detention. Verdict for plaintiff. New trial granted and appeal from the judgment granting it. The facts are stated in the opinion. cited, 113 Ala. 495; Taylor v. Corley, 113 Ala. 586; Winter v. Loel), 106 Ala. 261; Malone v. Cobb, 92 Ala. 630; Clark v. Pope, 10 So, Rep. 586.

Tried before Hon. S. G-. Woole. This case urns the application of Morris Mayer as the administrator of the estate of Allen Kornegay to the probate court for an order to sell lands of the estate to pay debts. The facts fully appear in the opinion. — On the admission and rejection of evidence on the hearing of the application, appellant cited the following authorities. — 87 Ala. 727; Richardson v. Btringfellow, 100 Ala. 416; 96 Ala. 33; 6 Port. 121.

Tried before Hon. J. C. Richardson. Action of assumpsit on account, by the Bank against WadsAvorth. The defendant, on the 17th January, 1898, filed three pleas to the action in short by consent, as stated in their caption, — non-assumpsit, set-off ancl payment.

Tried before Hon. John H. Disque. Wilson sued the Railroad Company for damages resulting from tbe killing of a cow by the train of the defendant. The facts are stated in the opinion.

Tried before Hon. Charles A. Senn. C. S. Cox sued W. H. Cody in justice court, and at the same time caused writ of garnishment to issue to Robert Stevens. The writ was not in fact served on the garnishee but on his agent in business; and the officer returned it as served on “Stevens.” Judgment nisi was entered against the garnishee, and in response to notice of the same he appeared and made answer before the justice.

Tried before Hou. H .0. Speake. Action by appellant against the appellee. • The facts are sufficiently stated in the opinion. Judgment for defendant. cited, Palmer v. Scott cG Co., 68 Ala. 380; State v. Jones, 11 So. Rep. 596; Jones v. State, 65 Miss. 179; Phoenix Ins. Go. v. Copeland, 86 Ala. 551; Hunsey v. State, 87 Ala. 121; Ansley v. Bank, 113 Ala. 467. ' cited, Pierce & Baldicin v. Pass tG Go., 1 Port. 232; Gannon v. Lindsay, 85 Aia. 198; 5 Ala.

Tried before Hon. John H. Disque. Cason and another brought suit against Noojin to recover a balance claimed to be due as purchase money of a lot of land.

Tried before Hon. J. W. Foster. The facts are sufficiently set out in the opinion.

Tried before Hon. N. B. Feagin. Tilomas G. Hewlett and others Avere arrested on warrant issued out of the police cóurt of Birmingham founded on affidavit charging them with violation .of the. statute against “book-making or pool-selling on horse racing.7’ The defendants demurred to the affidavit; and the demurrer Avas sustained on the ground that the said statute Avas unconstitutional. From the judgment on the demurrer the State appealed.

Heard before Hon. John H. Disque. Bill by Otto Agrieola against tlie Interstate B. & L. Association. Tlie facts of this case succinctly stated are these: Mrs. Emma E. Hamlin executed a mortgage to one Bellinger on certain land.

Tried before I-Ion. James W. Lapsley. The opinion sufficiently states the facts. — The settlement of Gammon could hardly be considered a suit against him, and certainly S. L. Cook ivas no party. — Martin v. Tally, 72 Ala. 30; Steele v. Graves, 68 Ala. 17. (2).

Tried before Hon. W. W. Wilkersoh. A. O. Posey brought this suit against the appellant company to recover damages for injury resulting from defects m a crossing. Tlie evidence showed that about 8 o’clock at night as the driver of a two horse wagon, the property of plaintiff, was driving across a crossing of the defendant’s railroad, the wheel of the wagon was caught in the guard rail of the track and so held that the driver could not loosen it.

Heard before the Hon. W. L. Parks. Bill in equity by James Douglass against the city council of Montgomery and others to have declared void certain ordinances of the city authorizing the use of a park in said city by the defendant railroad companies, and for injunction. James Douglass having died pending the suit, it Avas revived in the name of his executors and devisees. The opinion states the case on the point decided.

<p>Appeal from St. Clair Circuit Court.</p> <p>Tried before Hon. Geo. E. B reaver.</p> <p>The ease is stated in the opinion.</p> <p>cited the folloAVing authorities. — Schultes v. Eberly, 82 Ala. 242; Elsberry v. Seay, 83 Ala. 614; Montgomery v. State, 88 Ala. 141; Constitution, Art. XIII, § § 1 to 5, 7 and 11; Mayor v. Stoneirall Ins. do., 53 Ala. 582; Stanfcl v. Dallas Count, 80 Ala. 290.</p> <p>3 Brick. Dig., p. 171, § § 2, 5; Baldwin- v. City Council of Montgomery, 53 Ala. 43 <; 44 Ala. 493] ¡Stem v. Mayor &c. of Mobile, 24 Ala. 591.</p>

Heard before Hon. C. L. Cargile. This cause is an appeal taken by the contestants of a will from the decree of the probate court rendered on the c. ntest.

Tried before Hon. N. D. Denson. . Action to try the right of property, commenced in justice court and brought to circuit court by appeal. Whitfield & Pinckard caused execution to issue on a judgment in their favor against L. B. Britt, and it ivas levied on an ox in the possession of defendant in execution. James Johnson interposed his claim to try the. right of property.

Tried before Hon. W. S. Anderson. Sterne & Co. sued Morningstar in trover for the conversion of certain cases of shoes. The facts appear fully stated in the opinion. contended that the appellant Avas not a bona fide purchaser, and cited, Lobe cG Bros. v. Flash Bros., 65 Ala. 542.

Tried before lion. J. M. Carmichael. Action by J. A. Tucker and another against the LaFayette Railroad Company for work and labor done. The plaintiffs Avere sub-contractors in building the road bed. During the time they Avere at work the engineer of the company directed certain changes Avliich involved extra labor, and told the sub-contractors that the company would pay for it.

Tried before I-Ion. Wm. S. Anderson. Action of ejectment by Wm. A. Carter and others against Geo. Chevalier.

Apdjoal from Montgomery Circuit Court. Tried before Hon. J. C. Richardson. Petition for common law writ of certiorari by the Southern Cotton Oil Company to have declared Amid a judgment rendered against it by the Board of Revenue of. Montgomery county in the matter of the assessment of escaped privilege taxes. The facts sufficiently appear in the opinion.

Tried before S. D. Logan, Esq., Special Judge. Action by James L. Boyd against the Alabama Great Southern Railroad Company to recover damages for killing a coav. The suit was carried to the circuit court by appeal from judgment rendered against the defendant in a justice court.

Tried before E. H. Oabaniss_, Esqev Special Judge. Action by James Odom, Sr., against J. B. Carrington and Mrs. M. A. Gamble as tlie executors of F. A. Gamble.

Tried before Hon. J. A. Bilbro. The plaintiffs in this case, who are the appellants, were the transferrees of a promissory note executed by the defendants to Lovett, the payee of the note for services he had rendered to the Blount College Co., a corporation. The makers of the note were the directors of the College Company, and there was no consideration for the note except the obligation of the company to Lovett.

Tried before Hon. John H. Disqub. ' Action by the Richmond Locomotive and Machine Works against J. M. Moragne, W, B. Beeson and G. W. Whorton on a promissory note executed by the defendants in their individual names to the plaintiff. The defendants filed six pleas to which demurrers were sustained.

Tried before ITon. W. W. Wilkebson. •Hoffman, Ahlers & Co. brought suit against the Alabama Distillery & Feeding Co., a corporation. The suit was in justice court, and the return of the service of tlie summons made by the constable was, “executed the within by personal service on Jule L. Lockwood, president.” judgment by default was rendered; and the defendant applied for and obtained the common law writ of certiorari to have the judgment declared void.

Tried before the Hon. Wm. W. Wilkerson. This action was by the Southern Railway Company against Francis to recover from him an amount - of money paid by the company to him as taxes. The money was paid under protest. It is alleged that the special act under which the tax was levied and collected was unconstitutional.

<p> Application for Mandamus. </p> <p>1. Mandamus; when proper remedy. — Mandamus is the proper remedy to compel a circuit judge to make an order in a cause pending in his court requiring the plaintiff in said cause to give security for costs.</p> <p>2. Security for costs; what it covers. — The language of the statute, Code, § 1350, which provides that security for costs may he required of a plaintiff who removes from the State after suit brought, is too plain to admit of question — it calls for no construction. Security for costs means nothing more or less than security for all costs for which the plaintiff may he or may become liable. When the plaintiff removes from the State the same reason for requiring security for costs thereafter accruing would apply to costs already created.</p> <p>3. Administrator the only party to Tyring suit in certain cases of personal injury. — It cannot be seriously contended that a judgment for costs against one not a party to the suit, and not before the court, could be upheld. Therefore the contention is without merit that when suit is brought under section 1749 of the Code the administrator is only a nominal party, since under the terms of section 1751 the personal representative of the deceased is the only party who can bring such spit.</p> <p>4.. Security for cost; statute constitutional. — The statute requiring security for costs by a non-resident suitor, is not offensive to section 14 of the declaration of rights.</p>

Tried before Hon. Wit. B. Bridges. The facts are stated in the opinion. cited, Potts v. Coleman, 86 Ala. 94; Same Case, 67 Ala. 221; Lipscomb v. Lelemos, 68 Ala. 592; 86 Ala. 94; 67 Ala. 221; 68 Ala. 592. — On settlement of his accounts administrator is chargeable with a debt due from himself to the decedent. — P-urdom v. Tipton, 9 Ala. 914; Miller v. Irby’s Adrnr., 63 Ala. 477; 1. Buck. 967; 3 Buck. 396.

Tried before Hon. John Moore. Action by M. L. liandolph against Martin Dominick on contract.

Tried before Hon. Jas. A. Bilbro. W. J. Tally and others as executors recovered a judgment against Clark Cross. New trial was granted on the ground that the court committed error in excluding the evidence of an expert witness to the effect that two papers before the court were written at the same time. Plaintiffs appealed. from the judgment granting new trial. Cheney v. Dundas, 20 Neb. 265; Lockett v. Spencer, 29 Barb. 180; Ellingtoood v. Bragg, 52 N. H. 488; Phoenix Ins.

Tried before Hon. J. A. Bilbro. S. M. Hood sued Charles P. Ward and others, on a replevy bond. The facts are stated in the opinion. Charge 4 refused to defendant is as follows: “If the jury believe the evidence plaintiff is not entitled to recover for money had for use of plaintiff.” contended that the court erred in refusing the 4th written charge of defendant, citing King v. Martin, G7 Ala. 177; P. & M. Ins.

Tried before Hon. H. C. Speake. This suit vms brought by Wilkinson, Banks & Co. against Samuel M. Buster on tAvo negotiable promissory notes executed to the plaintiffs by the defendant. The defendant pleaded that he was a minor under tAventy-one years of age Avhen the notes Avere executed by him.

Tried before Hon. S. IT. SprOtt. Common law certiorari by Robert H. Bolin to annul a judgment rendered against him in favor of Catherine Sandlin in justice court. The facts appear in the opinion. cited, on the question .of jurisdiction, 90 Ala. 482; 98 Ala. 461; 102 Ala. 475. — In this case the errors complained of would have to he proven by evidence cle hors the record; and parol proof is not admissible. — Gray v. Ho. Ry., 116- Ala. 654; Tuscott v..

Tried'before-Hon. H. C. Speaice. Action by Henry L. Jones against W. J. Wellman and others to receive a sum of money for and on account of the violation of a contract entered into by the defendants with the plaintiff, Avliich contract is set ont in the opinion, as well as the other facts necessary to be stated.

Heard before Hon. W. L. Parks. Bill in equity by the Merchants & Farmers Bank against J.. A. Paulk and others to have certain conveyances executed by Paulk to other defendants declared assignments for the benefit of all the creditors of Paulk; and to have two mortgages executed by the dedefendant, Jane Paulk, one to L. Bernheimer and the other to the Bullock County Bank on the lands conveyed to her by her husband, J. A. Paulk, set aside and annulled.

Tried before Hon. S. H. Sprott. Suit by J. B. Sloan against N. M. Cartlidge to recover damages for injury to a mare, tlie property of the plaintiff. The complaint contained five counts, the nature of which and the facts of'the case are set out in the opinion. The following are the charges referred to in the opinion.

Appear from Montgomery City. Court. . Tried before Hon. Á. I). Sayre. Action by M. Bui’ke as administrator of T. Burke against the Alabama Midland Railway Company. The facts appear in the opinion. contended that the manner in Avhich the train Avas run in connection Avith the character of the crossing and the number of people passing over it, was AAninton negligence, citing, Railroad v-. Webb, 87 Ala. 308; A. G. tí.

Heard before Hon. W. 1Í. Tatloe. Bill in equity by tiie Alabama State Land Company against J. M. Hastings and another to enforce vendor’s lien on land sold by the complainant to the defendants. Decree was rendered for-the complainant, but the chancellor in calculating the interest on the purchase money committed an error, which was corrected at the next term of the court.

Tried before Hon. Gr. K. Miller. Action to try tbe right of property by T. It. Jones against A. P. Cbenault, claimant. Tbe plaintiff having a judgment against S. M. Cbenault caused execution to be levied on a stock of goods in bis possession. Tbe claimant interposed ber claim to the goods.

Tried before lion. H. C. Speake. Suit on injunction bond by the American Freehold Land Mortgage Company against B. J. Curry and others. The case is clearly stated in the opinion. (1). The recovery of fees is limited to fees for services in dissolving the injunction and does not extent to other services in the suit. — Boling v. Tate, 65 Ala. 417. (2).

Appear from- Cullman Chancery Court. Heard before Hon. TV. H. Simpson. Casaway Hames brought this suit against A. B. Chastain and C. P. Lynch to enforce a vendor’s lien on land. Hames sold the land to Chastain, who.paid the purchase money in part only. Afterwards Chastain requested Hames to execute a deed to one Lynch. The deed was written and signed, but Hames refused to deliver it until the balance of the purchase money dne him was paid.

Appeal, from Birmingham City Court. Tried before Hon. H. A. Sharpe. This suit was brought by David Franscomb against the Birmingham Railway & Electric Company for damages caused by a collision of the defendant’s car with the wagon of plaintiff. The complaint in different counts charged negligence and wantonness. The important facts are fully ' stated in the opinion.

Heard before 1-Ion. Wm. H. Simpson. Brock & Spiglit applied to the chancellor for the appointment of a receiver on a bill which they had filed against E. M. Schileer and O. E. Sittason, praying that a certain conveyance executed by Sittason to Schileer and the property therein embraced be declared to inure to the benefit of all the creditors of Sittason. The facts are fully stated in the opinion.

Appear from Jefferson Circuit Court. Tried before Hon.' James J. Banks. C. C. Skewes recovered judgment in justice court against W. H. Harney, and on the judgment sued out process of garnishment against the Tennessee Coal, Iron & Railroad Co. The garnishee answered no indebtedness, and the answer was contested. Judgment Avent against the garnishee and the case Avas taken to circuit court on appeal.

I Lean! before Hon. W. L. Parks. Mrs. M. E. McCall sold certain real property to S. 1). Dowling and wife, taking in part payment of. the purchase money a certificate of deposit. Subsequently, and after payments on the deposit certificate had been made, she gave up the same and took in lieu thereof the paper set out in the opinion. This is a suit to enforce the vendor's lien for the unpaid balance of the purchase money.

Tried before Hon. H. C. Speake. Action of detinue by D. S. Sharpton against J. K. Hart and another to recover one grist mill, one gin and press, together with all the fixtures belonging thereto. A demurrer to the complaint on the ground that the description of the property sued for was vague and uncertain, was overruled. The plaintiff claimed the property by virtue of a mortgage executed to him by one Holmes; the defendants claimed it by purchase from Holmes.

Clair Chancery Court. Heard before 1-Ion. J. R. Dowdell. Bill by Browning and others against Kelly and others. This cause was on a former occasion before the Supreme Court on appeal from a decree of the chancery court on the demurrers to the bill of complaint, Kelly v. Browning, 113 Ala. 420. The opinion rendered on that appeal fully and clearly sets forth the case made by the bill. These facts need only to be concisely stated here.

Tried before lion. J. A. Bilbro. Oscar Goforth, a minor, brought this suit by next friend against J. W. Worthington & Co. to recover damages for injuries sustained by him while in the employment of the defendants.

Hoard before Hon. Thos. Cobbs. Bill in equity by J. H. Hayes against tlie Southern Home Building & Loan Association, a corporation. The complainant subscribed for twenty shares of the stock of the defendant association, at one hundred dollars for each share. He afterwards borrowed of the defendant one thousand dollars, and to secure the same executed a mortgage on his homestead and also transferred to the defendant ten of his shares of stock.

Appear, from Elmore Chancery Court. Heard before Hon. J. R. Dowdele. The facts are fully and clearly stated in the opinion. .1. Where an executor is notoriously unfit, lias committed a devastavit, or has been guilty of any other act which would warrant his removal, equity will interpose, enjoin him from further acting, and in a proper case appoint a receiver. — Taylor r. Allen, 2 Atk. 213; Uttcrson v. Mair, 2 Yes.

Heard before Hon. Thomas Cobbs. The Royal Insurance Company was an incorporated fire insurance company, with its principal place of businc ss at Birmingham, Alabama. It became Insolvent. Its president and secretary, as stockholders, filed a bill praying that a receiver be appointed, and its assets distributed by the court. The receiver was appointed, but nothing more was done in the suit; and immediately after filing their bill the complainants left the State.

Tried before Hon. T. R. Roulhac. Action by the Merchants’ Bank of Florence against J. E. Foster for contribution for expenses paid by the plaintiff for repairing partition wall. The suit was commenced in justice court where judgment went for the plaintiff. Defendant appealed to circuit court, and in that court the defendant demurred to the complaint. Demurrer was sustained, and plaintiff declining to amend, judgment final was rendered on the demurrer. (1).