Volume 129 — Alabama Reports

Tried before tbe Hon. A. H. Alston. Tliis was a bastardy proceeding, in which the prose-cutrix, Mary E. Potter, an unmarried woman, charged the appellant, George W. Lusk, with being the father of her illegitimate child. The evidence for the State tended to show that the defendant was guilty as charged.

Tried before tlie Hon. John P. Hubbard. Tlie appellant in this case, William Parnell, was indicted for murder in tlie first degree for the killing of one Henry Starling, was 'convicted of murder in the second degree and sentenced to ten years in the penitentiary. The organization of the grand jury and the return by the grand jury of indictments and the indorsement upon the indictment in the present case are shown in the opinion.

Tried before ¡the Hon. A. H. Alston. Tbe appellant was tried under an indictment which charged that .lie “unlawfully and with malice aforethought killed Ad Smith, alias Age Smith, by shooting him with a pistol,” etc., was convicted of murder in the second degree and sentenced to the penitentiary for forty years.

Tried before the lion. J. A. Bilbro. The appellant, 1). P. Mitchell, was jointly indicted with Lint and Lon Mitchell for the murder of Dave Thompson by shooting him with a gun. Upon motion of the defendants a severance was had, and the appellant in the present case ivas convicted of murder in the second degree and sentenced to the penitentiary for' fifteen years.

Tried before the Hon. J. A. Bilbiio. The appellant, Joseph Simmons, was indicted and tried for the murder of Houston Webb, was convicted of murder in the second degree, and sentenced to the penitentiary for a term of twenty years. The regular juries as organized for that week were composed of twenty-four persons.

Tried before the Hon. John Moore. The appellant, John Maxwell, was indicted and tried for tbe murder of Pat Finnon, was convicted of murder in tbe first degree and sentenced to the penitentiary for life.

Tried before the Horn John Mooue. The appellant in this case, Festus Caddell, was. jointly «indicted with Lillian Gardner for ¡the murder-of Mamie Caddell, his wife, by shooting her with a pisco!. On motion of the defendants a severance was-had and the defendant in the present case was tried' separately, was convicted of murder in the fir sit degree- and sentenced to be hanged.

Tried before the lion. A. A. Evaxs. The appellant in this case was indicted and tried for burglary and was sentenced to the penitentiary for five years. The only question presented for review on the present appeal is the ruling of the trial court in the organization of the jury.

Tried before tbe Hon. Joi-nsr P. Htjbiíaiu). Tbe appellant was indicted, tried and convicted for an assault with intent to murder, and was sentenced to tlie penitentiary for two years.

Appeal -from the Circuit, Court of Greene. Tried before the Hon. G. B. Mobley, Special Judge. The appellant, George Harkness, was indicted and tried for the murder of Sandy Walker, was convicted of murder in the second degree and sentenced to the penitentiary for thirty-five years. The tendency of the testimony on the part of the State and upon the part of the defendant, respectively, is sufficiently stated in the opinion.

E. B. Almox. The indictment under which the defendant was tried and convicted was' in 'words and figures as follows: “The grand jury of said county charge that before the finding of this indictment Albert Eggleston, being the bailee of Thornton Stanley, embezzled or fraudulently converted to his own use or fraudulently secreted with intent to convert to his own use one twenty dollar gold coin of the United States the personal property of Thornton Stanley, which came into the…

Tried, before the Hon. James W. Lapsley. 'The appellant, Eliza Abernathy, was indicted for murder in the second degree for killing one Bettie Thornton, was convicted of manslaughter in the first degree and sentenced to the penitentiary for five years. On the trial of the cause the evidence for the State tended to show that Bettie Thornton came upon the porch of the house occupied by the defendant and commenced hammering upon the front door asking the defendant for admittance.

Tried before the Hon. John H. Disque. The appellant was indicted, tried and convicted for an assault witli intent to rape, and was sentenced to tbe penitentiary -for twenty years. On the trial of the case the woman alleged in the indictment to have been assaulted testified to the circumstances of the assault committed upon her and to¡ facts tending to show that the assault was made*’with the intent to forcibly ravish her.

Tried before the Hon. A. A. Evans. The appellant was indicted, tried and convicted for an assault with intent to murder one Thos. E. Speller.

Tried before the Hon. E. B. Almon. Tbe appellant was indicted, tried and convicted for the larceny of a cow, the personal property of Lucy Burns, and was sentenced to the penitentiary for five years.

Tried before the Hon. John Pelham. The indictment under which the appellant was convicted contained three counts. The first count charged the larceny of a pistol o.f the value of $10 from a dwelling house. The other counts charged the larceny of a pistol from a storehouse, and a warehouse, respectively.

• Tried before the Hon. E. B. Wilkekson. The defendant in this case was prosecuted, tried and convicted for the embezzlement of seventy-five cents.

Tried before the Hon. J. A. -Bilbro. The appellant was indicted and tried for an assault with intent to murder, was convicted of an assault, and fined twenty-fire dollars.

Tried before the Hon. John Moore. Tbe appellant, Littleton Gordon, was indicted and tried for tbe murder of David John Stephens, was convicted of murder in the second degree and sentenced to tbe penitentiary for thirty years.

Tried before the Hon. John Moore. The appellant in this -case was indicted for an assault with intent to murder, was convicted for an assault and battery with a weapon. After the judgment of conviction was pronounced there was a motion made to retax the costs. This motion -appears in the bill of exceptions, as well as in the record, hut there is in the bill of exceptions no exception reserved to the ruling of the court in overruling said motion.

Aureal from the Circuit Court of Lauderdale. Tried before the Hon. A. H. Carmichael,, Special Judge. The appellant, Jim Band, was indicted, tried and convicted of' bigamy. On the trial of the case the State proved that the defendant, Jim Band, married Lulu Houston on January 21, 1898, and without any divorce from this marriage, he subsequently married Julia Weakley on.December 21, 1899. The State introduced Julia Weakley, who testified to her marriage with the defendant.

Tried before tlie Hon. E. B. Wilkerson. The appellant was prosecuted and convicted for appearing in a public place while drunk or intoxicated. The prosecution was commenced by an affidavit made before one E. U. McLure, a justice of the peace.

Tried before the Hon. TV. B. DeLoacii. The appellant, Austin Wright, was indicted, tried .and 'convicted for violating the prohibition law of the county of Sumter and for selling spirituous, vinous or malt liquors without a license and contrary to law.

Tried before the Hon. John Pelham. The appellant in this case was indicted, tried and convicted for the violation of a local statute “for the better preservation of game in Calhoun county, Alabama.” The only ruling of the trial court presented for review on the present appeal is the court’s overruling of the demurrer to the indictment.

Frank Miller filed an original petition in this court, addressed to tlie Judges of tlie Supreme Court, asking for the issuance of a writ of prohibition, mandamus or other remedial writ, to vacate and annul a decree rendered on January 21, 1901, by the chancellor of the northeastern chancery division in contempt proceedings, to prohibit and prevent the said chancellor in the enforcement of said decree or in said contempt proceeding's in said cause.

Tried before the Hon. John Moore. The proceedings in this case were had by the back tax commissioner of Dallas county, proceedings to make' additional assessment against V. B. Atkins & Co. on tlieir property. The facts of the case are sufficiently stated in the opinion. The judgment rendered by the board of revenue, which was appealed ■from, was sufficient to support an appeal.

Tried before tlie Hon. H. C. Speake. The proceedings in this case were commenced by a petition being filed by the Nashville & Decatur Railroad Company, addressed to the court of county com-missoners of Limestone county.

Tried before the Hon. N. D. Denson. This was a statutory action of ejectment brought by the appellant, Mrs. Emma M. Pearson, against Mrs. Eugenia B. Adams, Samuel P. Adams and Mrs. Mamie S. Whatley. The suit was defended by Mrs. Eugenia B. Adams.

Tried before the Hon. William S. Anderson. Tills was an action brought by the appellee, Leana Andrews, as administratrix -of the estate of John Richardson, deceased, to recover damages for the death of plaintiff’s intestate, which was alleged to have been-caused by the negligence of the defendants; the plaintiff claiming $10,000 damages. There were six counts in the complaint.

Heard before the Hon. Titos. H. Smith. . The bill in this ease was filed by the appellant, V. A. Vaughan, against T. J. Hudson and others.

Tried before Willtam S. AndeksoN. This action was brought by the appellant, Kate C. Barrett, against the City of Mobile and Khett Goode. The complaint as originally filed contained three counts. ‘Tbe first count was for trespass, in tbe Code form, for wrongfully taking one mule, tbe property of tbe plaintiff. Tbe second count was in trover and was in '•Code form for tbe wrongful conversion by tbe defendants of one mule.

iAppeal from the Circuit Court of Perry. Tried before the Hon. John Moore. This was an action brought 'by the. appellees, J. H. White & Co., against the Western Union Telegraph Company, to recover damages for delay in delivering a telegram. Under the decision on the present appeal it is unnecessary to set out the facts in detail. ■The cause was tried by the court without the intervention of a jury, and judgment was rendered in favor of the plaintiffs.

Tried before the Hon. J. W. Foster. This action was brought by the appellee, Lucy W. Adams, against the appellant, James A. Glenn, and G. T. Dannelly, to recover the statutory penalty for knowingly, entering upon lands of the plaintiff; and willfully cutting pine trees thereon, without the consent of the plaintiff. The defendants pleaded the general issue and the cause was tried upon issue joined upon ■ this plea.

Tried, before the Hon. John 0. Anderson. This. was an action of trover brought by Fannie A. Boyles, the appellee, against the Gulf City Shingle Manufacturing Company, a corporation,-seeking, to recover damages, as alleged in the complaint, for the wrongful conversion by the defendant of the “undivided one-half interest of the plaintiff in 57 cypress logs, containing in all about 2,284 cubic feet, the property of plaintiff.” Issue was joined upon the plea of the general issue.

Tried before the Hon. John Moore. The appellee, the Greely Burnham Grocery Company, recovered a judgment against E. N. Cottingliam and J. L. Buttle, as partners doing business under the name of E. N. Cottingham & Co. Upon this judgment they sued out a writ of garnishment, which was served upon the appellant, J. M. Cottingham. This writ of garnishment was issued on December 13, 1894, and was executed on the same day by serving a copv thereof on the garnishee.

Heard before tbe Hon. J. B. Shivers. T. T. Daughdrill, as tbe administrator of tbe estate of John H. Poole, deceased, filed tbe following petition In the probate court of Perry county, addressed to Hon. J. B. Shivers, judge of said court: “Your petitioner, T. T. Daugbdrill, administrator in said court of the estate of John H. Poole, deceased, represents that the personal property of the estate of said decedent is insufficient for the payment of the debts thereof; and that…

Auuical from the Chancery Court of Mobile. Tried before the Hon. Thos. H. Smith. The bill in this case ivas filed on June 11, 1900, by the Mobile Land Improvement Co., a corporation, organized and existing under the laws of Alabama, against the appellee, Herschel B. Gass.

Tried before the Hon. A. I). Sayee. P. P. Johnston, who lived in this State, died, leaving property in Florida and Alabama. Seth Johnston, the appellant, was appointed administrator of the estate of P. P. Johnston in this State, and was also appointed administrator of the estate of P. P. Johnston in the State of Florida.

‘ Appeal from the 'Circuit Court of Greene. Tried before the Hon. John C. Anderson. This was a statutory action of ejectment, brought by the appellees against the. appellants to recover certain lands specifically described in the complaint. The-facts of the case relating to the claim of the plaintiffs to the property are sufficiently shown in the opinion.

Appkal from the Circuit'Court of Conecuh. Tried before the Hon. John P. Hubbard. ' This was an action 'brought by the appellant, Jennie Page, a non, compos mentis, through her next friend, Ben Page, against the Louisville & Nashville Nailroad Company, to recover one thousand dollars for personal injuries. The complaint as originally filed contained two counts.

Appeal, from tbe Circuit Court of Greene. Tried before the 1-Ion. John C. Anderson. This action was brought by the appellee, Mary E. Taylor, against the Alabama Great Southern Railroad Company.

Apokal from the Circuit 'Court of Washington. Tried before the Hon. A. H. Alston. This was a statutory trial of the right of property sought to he interposed in a detinue suit originating as follows: The appellant brought an action of detinue, against one, J. P. Williams to recover certain specifically described personal property. This, suit- 'Was instituted in a justice of the peace court. No bond for a writ of seizure was given.

Heard before the Hon. A. I). Sayue. The bill in this case was filed on July 28, 1898, by the apellees, Josiali Morris & ‘Company and George F. Moore, against the Yankirk Land & Construction Company, William II. Knowles .and W. J>. Vankirk.

Heard before the Hon. Thomas H. Smith. The bill in this case was filed by the appellant, R. B. Dugger, against P. A. Tutwiler, C. S. Tutwiler and Henry T. Young. This is the second appeal in this case. Tutwiler v. Dugger, 127 Ala. 191. . After the reversal of the decree and the remandment of the cause, the bill was amended.

Heard before tlie Hon. John P. Hubbard. Tire appellant in tifie case filed, a petition addressed, to Hon. John P. Hubbard, judge of the Twelfth Judicial Circuit, asking* for a writ of mandamus.

‘ Tried 'before the Hon. John Moore. This was an action brought by the appellant hgainst the appellee to recover damages for personal injuries. The appeal is prosecuted by the plaintiff from a judgment in favor of the defendant. The only rulings assigned as error were reserved in the 'bill of exceptions.

Tried 'before the Hon. A. H. Alston. This action was brought by the appellee, the Hamilton-Brown Shoe Company, against the appellant; and counted upon the common counts for goods,' wares and merchandise sold by the'plaintiff to the defendants. The manner in which the parties to the case were styled in the complaint is shown by the opinion. A copy of the summons and complaint was served upon ■ all three of the • alleged partners, and they all appeared and pleaded.

Tried before tbe Hon. John P. Hubbard. This suit was brought by tbe appellant against the appellee to recover damages for trespass 'by the defendant’s bogs on the crop owned by tbe -plaintiff and growing upon lands which were situated in beat six of Henry county.

Heard before the Hon. William L. Parks. The bill in this case was originally filed on November 15, 1892, by W. W. Wilkinson by next friend, against H. A. Wilkinson, Harriet Weil, Abraham Weil and Emanuel Lehman.

Tried before the Hon. A. D. Sayre. This was an action brought hy the appellee, J. M. Brown, as administrator of the estate of J. L. Brown, deceased, against the Alabama Midland Kailway Company, to recover damages for the alleged negligent killing of the plaintiff’s intestate, while he was alleged to be in the discharge of his duties at the time he received the injuries resulting in his death.

'Tried before the Hon. John Moore. This was an action brought by the appellee, I. Bosen-berg, against the Southern Bailway Company, to recover damages for injury to certain household furniture of the plaintiff, which in the complaint, is alleged to have been received by the defendant as a common carrier, to be delivered to the plaintiff at Marion, Alabama, for a re-ivard, and that the defendant failed to so deliver said goods, except in a damaged condition.

Tried 'before tbe Hon. John P. Hurt hard. This was a statutory action of ejectment, brought by the appellees, J. L. Hall and L. B. Farley, against tbe appellants, G. A. Griffin and J. T. Kamage. The cause was tried upon issue joined upon the plea of tbe general issue.

Tried before the Hon. A. A. Evans. The East Alabama National Bank sued out a writ of attachment against one W. B. Gorton, on August 19, 1896, and on the date of its issuance said writ was levied upon a stock of goods as the property of said Gorton. After the levy of said writ of attachment, the Union Manufacturing and Commission Company interposed a claim to certain of the goods levied upon, and upon the execution of a claim bond the goods were delivered to them.

Tried before the Hon. J. 0. Kioha&dson. This was an action brought by the appellee, A. C. Johnson, against the appellant, Ji. Harper, to recover damages for the alleged breach of a contract for the sale of 262 acres of land; plaintiff being the vendee. The complaint as amended contained 'seven counts, the'first and seventh counts of the complaint claimed f>900 for the breach of a contract alleged to have been entered into between the plaintiff and the defendant.

Tried before the H-on. John P. Hun hard. -Tlii-s action was brought by the Davi-s Wagon Company ■against the appellee, D. W. Cannon, in a justice of the-peace -court and counted upon an account for goods, wares and merchandise sold by the plaintiff to the defendant. From a judgment in favor of the plaintiff, the-defendant -appealed to the circuit -court.

Heard before the Hon. William L. Parks. The appellant, D. J. Adams, as the guardian of the person and property of Charles Wright Adams, a minor, filed his petition in the chancery court of Bullock county, praying for a writ of habeas corpus, and that upon the return of said writ the custody and possession of said minor, Charles Wright Adams, be awarded to him as such guardian.

Heard before the Hon. A. H. Alston. The hill in this case was filed by the appellant to enforce a mechanic’s lien and to subject the proceeds of a certain fire insurance policy to the payment of a debt for repairs upon a house against respondent Hurley. It also made the National Building & Loan Association party defendant because it held a mortgage against the property which had been foreclosed, the mortgagee purchasing át its own sale. E. It.

Tried before the 1-Ion. J. W. Foster. On December 28, 1897, tlie appellees, Yoorliees, Miller & Co., sued out an attachment in the circuit court of Butler against one Dayton Plaster. This attachment was executed by serving a sheriff’s garnishment upon several persons, among- whom was one J. AY. Phillips. The garnishee, J. AY.

Tried before the Hon. A. A. Evans. This was an action of assumpsit brought by the appellant against the appellee, and counted upon the common counts. The defendant pleaded two pleas.

Tried before the Hon. N. D. Denson. This action was brought by the appellee against the Louisville & Nashville Railroad Company to recover damages for the alleged negligent killing of a dog.

Tried before the lion. A. D. Sayre. This was an action in trover brought by the appellee, Henrietta, J. Dwyer, against the appellant, Prank C. Taylor. The appeal is from a judgment ml dicit in favor of the plaintiff.

Tried before tlie Hou. J. J. Maxeield. Tlie bill iu tliis case was filed by the appellant, Sallie Y. Hassell, against tlie appellees, William T. Hassell, and Amanda Snow. Amanda was the wife of James A. Snow, deceased, and acquired the mortgage and note made by W. T. Hassell to James A. Snow. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

• Appeal from the City Court of Birmingham, in Equity. Heard before the Hon. W. W. Wilkersox. The bill in this case was filed by the appellant, Charles P. Moore, against the appellees. As amended the bill averred substantially the following facts: The defendants and one W. H. Williams, who was not made a party to the bill, are the sole heirs at law of Thos.

Tried 'before the Hon. A. A. Coleman. This was 'an action brought by diaries F. Enslen, as administrator of the estate of Delius Jones, against the Tutwiler Coal, Coke & Iron Co., to recover damages for the alleged negligent killing of plaintiff’s intestate in the defendant’s mines. The complaint as originally-filed contained five counts, hut the court gave the general affirmative charge in favor of the defendant on all of the counts in the complaint except the first.

Tried before the Hon. John H. Disque. This action was brought by the appellant, Thomas J. Wofford, Jr., against W. M. Meeks and W. P. Johnson, constituting the firm of Meeks & Johnson, a partnership. The complaint contained two counts.

Tried before the Hon. N. D. Denson. This was an action of ejectment 'brought by the appellees, Hoffman & Graves, against Annie D. and W. G. High, to recover 'certain lands specifically described in the complaint. The plaintiffs claimed by mense conveyance, under a mortgage executed by the defendants. Hoffman & Graves was a co-partnership composed of Walter Hoffman and W. D. Graves.

Tried before tbe Hon. G-. K. Miller. This was a statutory action of ejectment, brought by tbe appellees against tbe appellant, H. W. Watson, to recover a certain tract of land 'specifically described in tbe complaint. Tbe suit was instituted on August 8, 1889. Tbe defendant pleaded tbe general issue and the statute of limitations of ten years, and also suggested by special plea adverse possession for three years.

Appeai.. from the City Court of Birmingham. Tried before the I-Ion. H. C. Speake. 'This action was originally instituted by “Woodland, a municipal corporation, for the use of H. M. Somer-ville, Jr.” against F. M. Wood and the sureties on his official bond as treasurer of the city of Woodlawn; and sought to recover damages for the breach of said official bond.

Appeal, from the Chancery Court of Blount. Heard, before the Hon. John 0. Carmichael. The bill in this case was filed by the appellee against the appellant. The facts of the case are sufficiently stated in the opinion. To the bill as filed the defendant demurred, assigning various grounds, directed to the want of equity in the bill. This demurrer was overruled.

Tried before the Hon. James W. Lapsley. • On March 29, 1900, Alf Truitt, the appellant, instituted a suit against J. E. Crook, and counted upon a promissory note due and payable on December 1, 1899. In aid of this suit, plaintiff sued out a writ of garnishment, which was sued out upon the London & Lancashire'Fire Insurance'Company.

Heard, before the I-Ion. Riohaiid B. Kelly. The bill in this case was filed on March 9, 1899, by the appellant, W. Dobson, a® serviving partner of the firm of Dobson & Merrill, against the appellees to foreclose a mortgage, which was executed by the defendants to the partnership of Dobson & Merrill.

Heard before the Hon. William H. Simpson. The bill in this case was filed by the appellee against the appellants. The purpose of the bill and the facts of the case are sufficiently stated in the opinion.

<p>Appeal from tlie City Court of Birmingham.</p> <p>Tried before the Hon. W. W. Wilkerson.</p> <p>This was an action of deceit, brought by the appellee Virginia Need against the appellant, Jack Watson; and sought to recover damages for deceit in the sale of a horse. The -suit was originally commenced in a justice of the peace court, and from a judgment rendered therein in favor of the defendant an appeal was taken to the city court by the plaintiff. In the city court the cause ■was tried upon issue joined upon the plea of-“not guilty.”</p> <p>P. G. Need, the husband of the plaintiff, upon being examined as a witness, testified that acting as the agent of his wife ,Virginia Need, he traded a pony which was his wife’s property, to Jack Watson, the defendant, for a horse, and “agreed to give Jack Watson $8 as boot between the pony and the horse Jack Watson let him have;” that the horse traded to him by Jack Watson had a knot on his neck, and that- in the trade it was agreed that two dollars was to be deducted if such knot did not get well in three weeks. That in the trade he acted solely as the agent of his wife, the plaintiff, and tokl Watson that he was acting as such representative of his wife; that Watson represented the horse to be alright • and warranted him to be. sound in every way, with the exception of the knot on his neck,- and that he agreed to take the horse back if he did not prove alright; that the agreement as to the payment of the $8 as difference between the horse was.reduced to writing and signed 'by the. witness-,. P. G. Need, and its execution was attested by two witnesses. This written agreement was introduced in evidence, and was, exclusive of the signature and its attestation, in words and figures as follows:</p> <p>“Birmingham, Ala., June 8th, 1898.</p> <p>“Sixty days after date I promise to pay Jack 'Watson eight ($8.00) dollars, it being the value of the difference in a horse which the said Watson traded to me. The title of said horse is to remain in said Watson until paid for. Said horse is about 10 years old, about 1(5 hands high, and dark 'bay. The further condition is that said horse has a knot under his throat, and if said knot does not disappear in three weeks said Watson is to deduct $2.00 from the $8.00.”</p> <p>P. G. Reed then testified that the horse traded to him by the defendant did not prove sound, but was weak in the back and otherwise unsound and unfit for use, and that he offered to return the horse to Watson, who declined to take him, and that the horse proved useless and worthless to the plaintiff, and finally died. That the pony which belonged to the plaintiff and was traded to the defendant was worth between $30 and $40, while the horse traded to the plaintiff was not worth exceeding $15 or $20.</p> <p>Virginia Reed, the plaintiff, as a witness in her own behalf, testified that she owned the pony traded to the defendant and authorized her husband to trade the pony. She also testified that the horse traded to her by the defendant was broken down and unfit for service',; that she saw the defendant several times and told him that the horse he traded her was unsound, and offered the horse back and demanded the return of the pony traded to him; that the defendant came to her and said that he would let her have a cow and calf if slie would pay him ten dollars, and “this would settle the whole matter;” that, after looking at the cow and calf she concluded to take them; but upon offering to pay the defendant the ten dollars, he refused it and declined to let her have the cow and calf as he had agreed to do. As recited in the bill of exceptions “defendant’s counsel objected to this evidence and moved to exclude the same concerning any offer by defendant of the cow and calf and ten dollars in settlement of matter, upon the following grounds : (1.) Because it is irrelevant and immaterial; (2.) Because it was an offer of compromise, whic.li was not .consummated or agreed to by both parties. .(3.) Because'it alters and varies and adds to the written agreement between the parties dated June' 8th, 1898.” The court overruled the objection and motion, and to this ruling. • the defendant duly excepted. ■ -o-</p> <p>The defendant as a witness in his own behalf testified that he traded the horse with 1*. (1. Reed and that he did not know nor was he informed that said P. G. Reed represented Virginia Reed; that the written contract introduced in evidence ivas the only contract made between the parties; that at the time of making the trade he told P. G. Reed that tin1 horse.he was trading him would have to be. cared for and treated, and that after P. G. Reed went to have a veterinary surgeon examine the horse, he signed the contract and traded for the horse. The defendant further testified ■ that when he heard that Virginia Reed was -complaining about her husband having traded her horse, for the purpose of a settlement of tin» matter, he offered to let her have a -cow and a calf upon the payment of ten dollars, and that this proposition was made in order to effect a settlement of all -contentions between them; but that -she only offered eight dollars, and refused to give more. There were other witnesses introduced for the defendant who corroborated hrs testimony as to his not warranting the horse traded to P. G. Reed to be sound.</p> <p>The defendant requested the court to give to the jury the following written charges, and separately excepted to the court’s refusal to give each of them as asked,:. (1.).. “If the jury believe the evidence they must find; for the defendant.” (2.) “If the jury believe from the evidence that the defendant never traded, sold or exchanged horses with plaintiff, Virginia Reed, then the jury must find for defendant.” (4.) “If the jury believe from the evidence in this case that the instrument or agreement dated June 8th, 1898, and -signed P. G. Reed, is the contract between the parties, then the jury must find for the defendant.”</p> <p>There' were verdict and judgment in favor of the plaintiff, assessing her damages at $28. The defendant appeals, and assigns as error the several rulings of the trial eourt to which exceptions were reserved.</p> <p>Proposition of compromise or settlement not consummated are inadmissible. — East Tenn. V, cC C. R. R. Co. v. Davis, 91 Ala. 615 ;• Collier v. Coggins, 103 Ala. 281.</p> <p>The charges requested by the defendant should have been given. — ‘Code, of 1896, § 3328; Edgar v. State, 43 Ala. 45; Lyons v. Kent, 45 Ala. 656; Hooper v. State, 106 Ala: 41; Bush v. Clover, 47 Ala. 167; Williams v. State, 47 Ala. 659; FAland v. State, 52 Ala. 322; 3 Brick-Dig. 112, § 95; 3 Brick. Dig. 110, § 63.</p>

Apiucal from the City Court of Birmingham. Tried before the Hon. Charles A. Sexx. This appeal is táken from a judgment by default rendered under the following circumstances: In February, 189(5, the appellees, A. I). Uatcliel and others, being partners under the firm name1 of The New York Steam Dye Works, sued out an attachment against appellant, W. H. Wheeles, before a justice of the peace of Jefferson county, for thirty-seven and 51-100 dollars.

, Appeal from the City Court of Anniston. Tried before tlie Hon. James W. Lapslex.

Heard before the Hon. William H. Simpson. . The bill in this case was filed bv the appellant, Susan B. Bickley, against the defendant. The purpose of the bill and the facts of the 'case are sufficiently stated in the opinion. In this court the appellant made a motion for the issuance of a writ of mandamus, ox other remedial writ, to the chancellor, commanding him to vacate and annul the decree of the court overruling the motion to dismiss the bill.

Heard before the Hon. 11. B. Kelly. The bill in this case was filed .by the appellee,.

Tried before tbe Hon. James J. Banks. This was an action in tbe -circuit'-court of Jefferson county brought by T. S. Knowles against the' Slo-ss Iron & Steel Company for damages on account of personal injuries sustained by tlie plaintiff by the falling of rock from the roof of an iron ore mine in which plaintiff was working at the time.

Tried before the Hon. John W. Mabry. This was an action brought by the appellee against the - appellants. The purpose of the suit and the facts of the case are sufficiently stated in the opinion. On the trial of the case, the defendants introduced no evidence, but requested the court to give the general affirmative charge in their behalf. The court refused to give this charge, and the defendants duly excepted.

Tried before the Hon. A. A. Evans. This was a statutory claim suit. Appellant claimed title by virtue of an assignment made to him by J. Oppenheimer for the benefit of creditors. Appellees claim under an attachment issued and levied at their instance against said Oppenheimer.

Tried before tbe Hon. James W. Lapsley. Tliis action was brought by tbe appellee, J. C. Mur-phree, against tbe Louisville & Nashville liailroad Company, seeking to recover damages for tbe defendant’s failure to keep in repair a cattle guard on its road, after demand of tbe plaintiff; it being averred in tbe complaint that by reason of such failure, a crop cultivated by tbe defendant was destroyed by bogs getting into tbe plaintiff’s field.

Tried before the Hon. H. C. Speake. This was an action of forcible entry and unlawful de-tainer brought by the appellee, Edward Beirne, against the appellants, Ann Eearn and Lee Fearn, for the recovery of the possession of a certain house and lot in the city of Huntsville. The suit was commenced before a justice -of the peace on June 25, 1898.

Tried before the Hon. J. C. Richardson. Zirkle & Moore, and P. C. Massie, the appellants, brought the present action against the appellee, Henry C. Jones, to recover an amount alleged to be due under a contract entered into between the plaintiff® apd the defendant. The complaint as originally filed contained two counts. Demurrers were interposed to each of these counts and these demurrers Avere sustained.

Tried before the Hon. Ed. B. Almon. This action was brought by the appellee, M. M. Frazier, against the appellants, J. M. McWhirter and other named persons as sureties upon the bond given by said McWhirter in a contest proceeding in which said Mc-Whirter contested the election of M. M. Frazier to the office of tax collector of Marion county.

Heard before the Hon. Jere N. Williams. The appellee, W. M. Thornton, filed a bill in the chan-eery court of Bull-ock county against H. H. Griswold and others, in which lie prayed to have an action of ejectment enjoined and errors in the description of certain lands contained in a. deed to the complainants corrected, and that all interest in said lands be divested out of the defendants and invested in the complainant.

Tried before the Hon. James A. Bilbro. 'This action was brought by the appellee, .Janies A. Reaves, against the Southern Railway Company, to recover daipages 'for the alleged negligent- killing by a train run pn the road, of the defendant, of two mules, the property of the plaintiff. The 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. John C. Anderson. This was an action of unlawful detainer brought by George W. Taylor, the appellant, against the appellee, Joe Bell. Tlie facts of tlie case necessary to an tinder-standing of tlie decision on tlie present appeal are sufficiently stated in tlie opinion. Upon tbe introduction of all tlie evidence the plaintiff requested tlie court to give the general affirmative charge in his behalf.

Heard before the Hon. Wn. L. Parks. The bill in this case was filed by appellee, R. E. Shelley, against appellant, W. E. Oakley, and prayed to have a certain deed of conveyance executed by the plaintiff to defendant set aside and cancelled. The grounds upon which the relief is prayed for and the facts of the case are sufficiently set forth in the opinion.

Heard before the Hon. A. D. Sayre. The bill in this case Avas filed by the appellant, the Jesse French Piano & Organ Company, against E. E. Forbes and T. F. Wing, on July 24, 1900.

Ai'I’Eau from the City Court of Gadsden. Tried before the Hon. John H. Disqtje. This was an -action brought by the appellant, S. J. Carlton, against James F. Henry and E. A. Rogers to recover damages for an assault and battery -alleged to have been committed upon the plaintiff 'by the defendants.

Tried before the Hon. A. A .Coleman. This was an action brought by the appellee against the appellant to recover the value of a cow, alleged to have been negligently killed by defendant or by some one for whose acts it was responsible. The complaint, as amended, contained three counts-. The ’first count, without preliminary averments, claimed of the defendant $35 for the unlawful killing of a cow in the town of Woodlawn.

Tried before the Hon. James W. Lapsley. A petition was filed by the appellants, Ernest Lagarde & Hons, to the judge of the' city court of’ Anniston, in' which they asked the issuance of a writ of mandamus directed to It. H. Cobb, as president and general manager of the Anniston Lime & 'Stone Company, requiring him to permit an inspection of the books, record and papers of the corporation by the petitioners in person and by an 'expert accountant.

<p> Petition in Pending Suit in Chancery for Injunction. </p> <p>1.. Injunction -pendente lite; -when properly issued. — A court of equity can, in the proper exercise of its jurisdiction, enforce and preserve property rights in issue in statu quo until the hearing on merits, and in order to sustain an injunction for the .protection of property pendente lite it is not necessary for the’ court to decide in favor of the complainants upon the merits, or that he should present such a case as will certainly efititle him to a decree upon the flnai hearing; but in order to support such an injunction, the court must be satisfied that the complainant certainly has the right • as to the existence of which there is a substantial question to be decided, and that without the interim interference such right would probably be lost or destroyed.</p> <p>2. Same; same; case at bar. — Where a hill 'is filed by a corporation. for the purpose of obtaining an accounting between it and its president, and for the settlement of the business of the affairs of the complainant, and a decretal order is rendered directing a reference by the register for such an accounting between the complainant and the respondents growing out of the alleged mismanagement and misappropriation of the funds belonging to the complainant corporation by its president, such complainant is entitled to an injunction :pendente lite to prevent rendering ineffectual such de-cretal order; and where a petition for such injunction alleges that such president or those under his control own a majority of the stock and that there has been called a meeting of the stockholders for the purpose of electing a new board of directors subservient to said president’s will, and which would defeat the complainant in its efforts to secure a just accounting between it and its president as to the money misappropriated, and the answer of the respondents to the petition is evasive and ■ does not clearly deny or contradict the charge against the president contained in the petition, a motion made by the respondents to the petition to dismiss the injunction issued upon the filing of the petition, on the ground of the want of equity in the petition and the denials contained in the answer, is properly overruled.</p>

Tried, before the Hon. H. C. Speaks. This was an 'action brought by the appellee, J. P. Gibson, against the appellant, J. 0. Tapscott.

Appear from the City Court of Birmingham. Tried before the lion. W. W. Wirkerson. This was an action of detinue brought by Joseph F. Johnston, who sues as receiver of the Francis-Vander-griff Shoe Company, against the Philadelphia Mortgage and Trust Company to recover “one hundred and seventy-six feet of shelving and drawers” in a storehouse in the city of Birmingham, known and designated as No. 2022. on Second Avenue.

Tried before the Hon. John Pelham. This was an 'action brought by the appellant against the Central of Georgia Railway Company to recover damages for the destruction by fire of the plaintiff's saw .mill and its equipments, which fire was alleged to have been caused by sparks emitted from a passing-engine on the defendant’s railroad. The complaint contained two counts. The first count is sufficiently stated in the opinion.

Tried before the lion. John H. Bisque. This was a statutory action of ejectment brought by the appellee, the O’Conner Mining & Manufacturing •Company, described in the complaint a® a corporation, against A. Bloch and Pauline Bloch to recover certain lands specifically described. The only question presented for review is ’sujeiently shown in the opinion.

Heard before the. lion. William-H. Simpson. ' The bill in this case was filed by the appellees, William S. Butler, Julia, Albert E. -and Mamie Butler, children of Enoch IT. Butler, deceased, and grandchildren of General Butler, deceased, by P. E. Ramsey and C. M. Bennett, children of Adeline Butler Bennett, deceased, and grandchildren of said General Butler, deceased, against Victoria Love, Jackson V. Love and George Weinmann, guardian of Jackson V. Love.

Appear from tlie Circuit Court of Morgan. Tried before the II011. IT. C. Bpioake. This was an action brought by the appellee, Mariah Reynolds, against Charles M. McGhee and Henry Fink, as receivers of the Memphis & Charleston Railroad •Company. This is the second appeal in this case.

Tried before the Hon. Charles A. 'Senn. This action was brought by Joseph E. Smith against the appellant, the Louisville & Nashville Railroad Company, to recover damages for personal injuries received by the plaintiff while in the discharge of his duties as an employee of the defendant, and caused by reason of the alleged negligence of the defendant’s servants. The complaint contains four counts.

Heard before the Hon. William H. Simpson. The bill was filed by Robert Riddle, as a judgment creditor of J. B. Allen, against J. ,B. Allen, Bailie B. Allen, his wife, and the Southern Home Building & Loan Association.

'Heard before the. Hon. Richard B. Kelly. The original bill in this case was filed on July 26, 1895, by W. N. Cowan against the appellee, the Southern Railway Company.

Heard before the Hon. W. L. Parks. On October 21, 1895, A. B. Shehee died, being at the time a resident citizen of Bullock county, Alabama. He left surviving him his widow and several children, among the latter being William G. Shehee. Said intestate left a considerable estate, consisting largely of lands in said county of Bullock.

Heard before the Hoh. -William H. Simpson. The bill in this case was filed on June 12, 1900, by the appellees, James T. Hambrick, Sarah Hambrick, Thomas McCord and' Hattie McCord, against the appellants, Anna J. Henderson and Mary Carlisle, and averred the following facts: That 'on October 14, 1889, one Hugh Carlisle filed his bill against the complainants in the present suit to foreclose a vendor’s lien on a certain specifically described tract -of land; that in May, 1898,…

' Appeal from the Oir'cuit Court of Marshall. ' Tried before the Hon. J. A. Bilbro. The proceedings in this case were had in a controversy between L. D. Lusk and ’S. C. Capehart oyer the right to establish and operate' a ferry at Gunter’s Landing in Marshall county, and originated in the commissioners court of said county.

Heard before tbe Hon. William H. Simpson. Tbe bill in tbis case was filed on March 24, 1898, by tbe appellees, Pascbal A. Guyer, against tbe appellant, D. M. Winton, and averred tbe following facts: Tbe complainant bad taken out a policy of life insurance in tbe New York Life Insurance Company. • Not having tbe money to pay one of tbe premiums, be borrowed tbe sum from tbe defendant Winton, executing bis note tberefor.

'Tried before the Hon. Jambs W. Lapsley. This was an action for money had and received, brought by the appellee, Regina Lippman, against the First National Bank of Anniston, to recover $597.39, alleged to have been received on October 4, 1897, by the defendant for the use of the plaintiff. Issue was joined on the plea of the general issue.

William H. Simpson. The bill in this ease was filed by 'the appellant against the appellees. The facts disclosed by the amendment of the bill are sufficiently set forth in the opinion. To the amended bill the defendants demurred upon the following grounds: 1. The demand of the 'Complaint, as set forth in the bill, is stale. 2. It is shown by the averments of the bill that the complainant's demand is barred by 'prescription, or the statute of limitations of twenty years. 3.

•Tried before the Hon. J. C. Richardson. This was an action brought by the appellee, I. D. Johnson, against the 'appellant, R. A. Kelly. The complaint as originally filed contained two counts.

Heard before the 1-Ion. W. H. Simpson. The hill in this ease was filed by the appellant, Elizabeth Owen Wilson, as administratrix de bonis non of the estate of Arthur Owen Wilson, deceased, against the North Alabama Improvement Company, a corporation, and James R. Stevens, John L. Rison, Michael J. O’ Shaughnessy, William P. Newman, George M. Harris and Charles H. Halsey, as director® of the North Alabama Improvement- Company.

Heard before the Hon. William H. ‘Simpson. The bill in this case was filed on October 25, 1899, by the appellee, J. I). Pullen, as surviving partner and as a creditor of H. S. Freeman, deceased, against W. H. Oldacre, as administrator of the estate of H. S. Freeman, deceased, R. E. Freeman, the widow of H. ’S. Freeman, and Olive Oldacre, the daughter of H. S. Freeman, and ugainst the First National Bank of Decatur.

•Appeal from tlie City Court of Birmingham, in Equity. Heard before the Hon. Chas. A. Senn. The bill in this ease was filed by the appellant, Henry Lyon, against the appellees; and 'souglit to Lave specifically enforced a -contract for the sale of certain lands. On the final submission of the cause upon the pleadings and proof, the chancellor rendered a decree denying the relief -prayer for and ordering the bill dismissed.

' ‘Tried before the lion. H. C. Speake. This was a statutory action of ejectment, which was brought by the. appellees, Mary J. Pickens, Wiley Pick-ens, Edmund Pickens and others, against the appellant, Demps Burrows, to recover certain lands specifically described in the complaint. The suit was instituted on February 2, 1898. The 'defendant pleaded the general issue.

Heard before the 1-Ion. William II. Simpson. The hill in this ease was originally filed on June 1st, 1896, by F. S. MeG-althery and D. It.

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

<p>Appeal from the Calhoun Circuit Court. .</p> <p>Tried before the Hon. John Peli-iam.</p>

<p>Appeal from the Jefferson Circuit Court.</p> <p>Tried before the Hon. A. A. Coleman.</p>

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

<p>Appeal.from-DeKalb Circuit Oonrt. .</p> <p>. Tried.,before the, thon. .J. A. Bilbro.</p>

<p>Appeal from Butler Circuit Court.</p> <p>Tried before'the;Hon.■ J. Ct Richardson..i •</p>

<p>Ari'i~r~ from Walker Ohan'ce~y G~urt.</p> <p>ileard before ~the lion. T~o~IAs COBBS~'</p>

<p>Appeal from Birmingham City Court.</p> <p>Tried before tbe Hon. Chas. A. Senn.</p>

<p>Appeal from Cherokee Circuit Court.</p> <p>Tried before the Hon. John A. Bilbro.</p>

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

<p>Appeal from-Montgomery 'Circuit Court.</p> <p>Tried'before the Ron.. J.' G. .Richardson.</p>

<p>Appeal from Montgomery Circuit Court.</p> <p>Tried lief ote the Hon. J: C.' Richardson.</p>

<p>Appeal from Gadsden City Court.</p> <p>Tried before the Hon. John H. Disque.</p>

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

<p>Appeal from Birmingham City Court,</p> <p>Tried before the Hon. Chas.- A.-. Senn.</p>

<p>Appeal from tlie City Com't of Birmingham.</p> <p>Tried before the lion. Charles A. Siqnn.</p>

<p>Appeal from Limestone Circuit Court.</p> <p>Tried before the Hon. H. C.. Speaice.</p>