Volume 131 — Alabama Reports

Tried before the Hon. John Moore. The appellant in this case was jointly indicted with his brother, John Green Sanders, for the murder of William Mullen. There was a severance, and each of the defendants was tried separately. The appellant in this case was convicted of murder in the first degree and sentenced to he hung.

Tried before the Hon. J. C.Bichabdson. -The appellant, Mose Davis, was indicted and tried for the murder of Hannah Brown, was convicted of murder in the first degree and sentenced to be hung. Upon the day the cause was called for trial, the defendant made a motion to quash the indictment. Upon a former day of the term the defendant had been arraigned and pleaded not guilty. This motion to quash the indictment was overruled, and to this ruling the defendant duly excepted.

Tried before the Hon. O. Kyle. Tlie appellant was tried under an indictment which charged that “before the finding of this indictment, Dan Thompson unlawfully and intentionally, but without malice, killed James 'Carter by running with a horse against a mule on which said 'Carter was riding, thereby knocking said Carter from his said mule upon the ground, killing him as aforesaid,” was convicted of manslaughter in the second degree, and sentenced to one year’s hard labor for…

Tried before the Hon. J. A. Bilbro. The appellant, Andrew Jackson, was indicted and. tried for the murder of Dock McBride, was convicted of murder in the second degree, and sentenced to the penitentiary for ten years.

Tried before tlie Hon. A. H. Alston. Tlie appellants, James and Isaac Paradise, were indicted for the murder of George Towers, tv ere convicted of murder in tlie econd degree and sentenced to the penitentiary for ten years.

Tried before the Hon. J. J. Mayfield. The appellant in this case was tried under the following indictment: “The grand jury of said county charge that before the finding of this indictment Dan Hennigan a,lias Dan Hannigan, willfully set fire to or burned a store of the Alabama Consolidated Coal and Iron Company, a corporation, which with the property therein contained was worth more than five hundred dollars, against the peace and dignity of the State of Alabama.” The…

Tried before the Hon. A. H. Alston. The appellant, James Tatum, was indicted, and tried for the murder of one James Webb, was convicted of murder in the first degree, and sentenced to the penitentiary for life. The evidence for the State showed that James Webb was waylaid and killed by being shot with a shot gun in 1894; and the evidence for the State tending to connect the defendant with said killing was circumstantial.

Tried before the Hon. Daniel A. Gtieene. The appellant in this case was prosecuted and convicted for presenting a pistol at another person.

Tried before the Hon. J. C. Richardson. The appellant in this case, George W. Taylor, was indicted by a grand jury of Conecuh county, for an assault with intent to murder, was tried and convicted in the circuit court of Conecuh county, and sentenced to the penitentiary for four and 'a half years.

<p> Prosecution for Running Flying Jennie without License. </p> <p>1. Running flying-jennie without_ license; sufficiency of complaint. — A complaint or affidavit which, charges that the de- ■ fendant “did run a flying-jennie in said county this day, without license, against the peace and dignity of the State of Alabama,” sufficiently describes the offense of operating a flying-jennie without a license, as is required by statute, (Code, § 4122, subd. 49).</p> <p>2. Same; sufficiency of evidence. — One who collects fares from those riding on a flying-jennie aids and abets in the operation of the same; and, if such flying-jennie is operated without a license, such person is liable for the penalty for the violation of the statute requiring licenses from the operator of eacn flying-jennie, (Code, '§ 4122, subd. 49); and this is true whether such person owns an interest in the flying-jennie or only receives compensation for the services performed.</p>

Tried before the Hon. Ti-ios. YV. Coleman, Jr. The appellants in this case were tried and convicted under the following indictment: “The grand jury of said county charge that before the finding of this indictment that John Jebeles and Peter Jebeles, being merchants or shopkeepers, and not druggists, kept open store on Sunday, against the peace and dignity of the State of Alabama.” 'To this indictment the defendants demurred upon the following grounds: “1st. Because said…

Tried before the Hon. B. C. Jones. The appellant in this case was prosecuted and convicted in the city court of Bessemer for an 'assault and battery. The facts of the case are sufficiently stated in the opinion. That the record proper in this case shows no judgment of conviction that will support an appeal to the Supreme Court. — Wright v. State, 103 Ala. 95; Ayers v. State, 71 Ala. 11.

Tried before the Hon. A. A. Coleman. The appellant in this case, Oliver Bray, was indicted and tried and convicted for an assault with intent to rape one Ida Andrews, and was sentenced to the penitentiary for five years. Upon the examination of prosecutrix, Ida Andrews, she testified to the details of the assault committed upon her and that said assault was made in the woods a short distance from the house of the defendant.

<p> Indictment for Larceny. </p> <p>1. Trial and its incidents; suspension of trial in order to obtain witness. — After a trial has been entered upon, it is within the discretion of the court, as to whether the trial should be suspended and delayed until a witness, who has already been examined as a witness and discharged, should be sent for and re-examined; and in the absence of abuse of this discretion on the part of the court, the refusal to suspend the trial for this purpose is not revisable.</p> <p>2. Witness; defendant as witness in his own behalf can be examined as to his conviction for crime. — During the trial of a criminal case, where the defendant is examined as a wicness in his own behalf, it is, under the provisions of the statute, (Code, § 1796), permissible for the State, on the cross examination, to examine him touching his conviction for another and different crime.</p> <p>3. Criminal law; general affirmative charge. — On the trial of a criminal case, where there is evidence tending to show tha the defendant is guilty of the offense charged, the general affirmative charge requested by him is properly refused.</p> <p>4. Charge to ¡lie jury; properly refused when giving undue prominence to evidence of particular witness. — A charge of the court to the jury, which gives undue prominence to the evidence of a particular witness, is erroneous and properly refused.</p>

Heard before the Hon. A. D. Sayre. The appellants, Henry Young and Smith Harris, filed their petition on November 21, 1901, addressed to Hon. A. D. Sayre, judge of the city court of Montgomery, in which they averred that the petitioners were imprisoned in the county jail of Montgomery county and were held by the sheriff of Montgomery county under a mittimus issued by Ben Screws, justice of the peace; that the said petitioners were discharged upon a habeas corpus proceedings…

Tried before the I-Iou. William S. Anderson. The State of Alabama, on the relation of John Craft, as administrator dc bonis non of the estate of B. IT. Stoutz, deceased, filed his petition addressed to the Hon. William S. Anderson, as judge of the circuit court of Mobile county, asking for the issuance of a writ of mandamus. In this petition the following facts were disclosed: B. IT. Stoutz died on November 11, 1888.

•Appeal from the Chancery Court of Mobile. Heard before the Hon. Thos. H. Smith.

Heard before the Hon. William H. Simpson. The bill in this ease was filed on August 5, 1899, by the appellant, N. B. Loyd, against the appellees, W. P. Guthrie, Edna Turney, Lucille Turney Clay, Maggie Turney Clay, Ella Turney Willis, and Amos Turney and J. Frank Clay, executors of the last will and testament of Daniel Turney. Edna Turney, Lucille Turney Clay, Maggie Turney Clay and Ella Turney Willis are the only heirs at law of said Daniel Turney.

Heard before the Hon. S. K. McSpadden. The facts of the case are sufficiently stated in the opinion. The court was without jurisdiction to sell lands for payment of debts, because there was a power in the will.

Tried before tbe Hon. James J. Mayfield. This was an action 'brought by the appellee, L. L. Herren, against the Tuscaloosa Water Works Company, to recover damages for personal injuries, alleged to have been sustained by the plaintiff while in the employment of the defendant, and which were alleged to have been caused by the negligence of the defendant.

Heard before the Hon. William L. Parks. The hill of complaint in this cause was filed on the 8th day of March, 1898, by numerous creditors… Held: and that the value of said collaterals was then more than sufficient to pay the indebtedness of the said Finch to the said bank; that said 1 leming was, at the time of the suing out of the attachment, and for a long ■while prior thereto, and still was, an intimate personal and confidential friend of the said Finch, their places of…

Heard before the 1-Ion. William L. Parks. The bill in this case was filed on July 29, 1899, by the appellee, Henrietta J. Dwyer, against the appellants.

Attisal. from the Chancery Court of Marengo. Heard before the Hon. Thomas H. Smith. The bill in this case was filed by the appellant, Ferdinand Meyer, against Alex Thomas, Narcissa S. Knight and Sydney H. Knight, her husband.

Heard before the 1-Ion. William L. Parks. Held: trover may be maintained for trees cut down and converted. — 1 Wash. Real Prop. 199; 3 Brickell, 779, § 1, et seq.; Treat v. Nelson, 80 Ala. 230; Brooks v. Rogers, 111 Ala. 121, 123; Mather v. Trinity Oh., 3 S. & R. 509; s. 0. 8 Am. Dec. 663, 668-9; Harland v. Harland, 15 Pa. St. 507; Anderson v. Heplar, 34 111. 438; s. c. 85 Am.

Tried before the Hon. Chas. A. Senn. This action was brought by the Tennessee Coal, Iron & Railroad -Company against the city of Bessemer, to recover an amount which the plaintiff company had paid to the defendant for taxes, and which the plaintiff claims was wrongfully [collected. The plaintiff -claimed for money had and received. The defendant pleaded the general issne. The facts of the case are sufficiently -stated in the opinion.

Tried before the Hon. John Moore. This action was brought by the appellant, William E. Torbert, against Hale county, to recover of the county a sum of money alleged to be clue the plaintiff by the county for services rendered by him while sheriff of said county in attendance upon the terms of the circuit and county courts of said county. The complaint contained two counts, as stated in the opinion.

Tried before the Hon. John Peli-iam. Tliis was an action to recover damages for malicious prosecution brought by the appellee, Lewis Adams,' against the Southern Car & Foundry Company. After demurrers to the original complaint were sustained, said complaint was amended, and as amended contained five counts, which were as follows: “1.

Tried before the Hon. A. D. Sayre. This was an action of trespass quare claumm, freg-it brought by the appellee, J. N. Hall, against the appellants, the Louisville & Nashville Railroad Company, J. I. McKinney, T. H. Mizell and H. A. Shield, the Mobile & Montgomery Railroad Company and the Western Railway of Alabama; and sought to recover damages for entering upon the premises called “The Joe Hall Boarding House Property,” near the city of Montgomery, and laying a railroad…

Tried before the Hon. A. D. Sayre. This was an action brought by tlie appellee, Hull Dumas, against the Central of Georgia Railway Company to recover $150 damages for -the alleged negligent killing of a mule belonging to the plaintiff. The tendency of the plaintiff’s evidence is sufficiently stated in the opinion.

Appear from the Circuit- Court of Jefferson. Tried before the Hon. A. A. Coreman. The proceedings in this (tase were instituted by an information being filed by the State of Alabama on the relation of A. E. Roblee and by A. E. Roblee -against Tom Baine to test the constitutionality of an act- approved February, 1901, providing for an inspector of oils for Jefferson county, Alabama.

Aureal from the ’City Court of Birmingham. Tried before the Hon. W. W. Wilkerson.

Tried before the Hon. A. D. Sayiie. This was a suit upon an alleged contract of insurance upon the life of Joseph A. Manegold, and was brought by Clara J. Manegold, as the administratrix of Joseph A. Manegold, against the appellee, the Massachusetts Life Insurance Company. Joseph A. Manegold made application for ten thousand dollars insurance in the Massachusetts Life Insurance Company, through J. I-I Smith and P. C. Watts, agents for the company.

Heard before tlie Hon. W. H. Simpson. The bill in this case was filed by the appellee, the Tradesmans National Bank, against the appellant, the Sheffield City Company, C. B. Ashe, as receiver of the Sheffield City Company, Robert H. Wilhoyte and Thos. L. Fossick, as trustees, and E. F. Enslen.

Tried before the Hon. J. C. Richardson. The facts of the case are sufficiently stated in the opinion. cited Oaldwell v. Smith, 77 Ala. 164; Dane v. Glennon, 72 Ala. 160; 85 Ala. 112; Code of 1896, § 29. Adverse holding at the time of conveyance does not prevent grantee suing in the name of the grantor. — Pearson v. King, 99 Ala. 125.

Tried before tbe Hon. T. J. Burton. This is an action brought by tbe appellee, W. J. Cofield, against tbe appellant, tbe Capital City Insurance Company, to recover on a fire insurance policy. There were many rulings by tbe court on tbe pleadings, but it is not necessary to set them out here.

Heard before the ITon. Chas. A. Senx. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently ■stated in the opinion. The appeal is prosecuted from a decree rendered in favor of the defendant, and the rendition of this decree is -assigned as error. cited Bill v. Camp, 22 Ala. 259, 260; Jiice v. (Hlbreath, 119 Ala. -124; Borsenhaimer v. Rorbach, 24 N. J. Eq. 33; 5 Eney.

Tried before the Hon. John P. Hubbard. This action was instituted by appellees against appellant to recover the reasonable value of services rendered by the former as attorneys for the latter.

Tried before the Hon. J. A. Bilbro. This action was brought to recover the balance due upon a promissory note. The balance consisted solely of an attorney’s fee stipulated for in the note. The note was given to C. C. Campbell as guardian for Mamie Arnold, and turned over to the latter in settlement of the accounts of the former as guardian. Mamie Arnold delivered the note to McCord, the beneficial plaintiff, as an attorney, for collection.

’ Tried before the Hon. J. A. Bilbro. This action was instituted by appellee against appellant upon certain promissory notes ,executed by the latter to the former. The defendant pleaded several set offs, and, among others, a note executed by the plaintiff to one. Harlan, and purchased by and transferred to the defendant before suit.

Tried before, the Hon. J. A. Bilbro. This was an action brought by the appellant, Mollie C. Jordan, against the appellee. The complaint contained but one count, in which the plaintiff claimed $200 for that she. was the owner of a judgment rendered on a waive bond against one Sherrell by the circuit court of Marshall county on April 10, 1897, for the sum of $513, upon which an execution was regularly issued and placed in the hands of the sheriff of said county on May 13, 1897.

Tried before the Hon. j. J. Mayfield. The appeal in this case was prosecuted by the plaintiff in the action from a judgment rendered in favor of the defendant, and the rulings of the trial court upon the evidence are assigned as error. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

Tried before tbe Hon. James W. Lapsley. Iii this case the appellee, the M. C. Kiser Company, recovered a judgment against G. C. Jones for a certain amount due it by promissory note, and then garnished money in the possession of the Sloss Iron and Steel Company as the property of Jones. The garnishee, in its answer, suggested Shackleford as a claimant, and the latter filed him claim.

Tried before the Hon. A. H. Alston. This was an action of assumpsit brought by the appellee, J. F. Anderson, against T. E. Callan, to recover $100 alleged to be due as a balance of purchase money of lands sold by plaintiff to defendant.

Heard before the 1-Ion. E. B. Almon. The appellant, Orville M. Hundley, filed his petition addressed to the judge of the Eighth Judicial Circuit, in which he averred that the “Christian Church of Huntsville, Alabama, was a corporation created and organized under the laws of Alabama in the year 1888;” that the petitioner was one of the oiiginal members who were asociated together under the organization and incorporation of said church and has since continued a member thereof…

Heard before the Hon. William H. Simpson. The bill in this 'case was filed by the appellees, Kent & Sabotka, and averred that one J. B. Brewer negotiated a loan from the Farmers Savings and Building and Loan Association, and to secure the same executed a mortgage upon certain parcels of real estate, and in accordance with the building and loan plan, Brewer subscribed for certain shares of stock in the association at the time of negotiating the loan, and, as recited in the…

Heard before the Hon. Chas. A. Senn. This was an action brought by the appellee against ¡he appellant.

' Heard before the Hon. J. C. Carmichael. Tbe facts of the case are sufficiently stated in the opinion. -If the complainant established the (truth of the allegations as set forth in her bill, she is -clearly entitled to the relief prayed for, but which was denied her by the chancellor. — Code, § 2529; BoyleMon v. Farrior, 64 Ala. 565; Heard v. Hicks, 82 Ala. 485Armstrong v. Connor, -86 Ala. 351.

Tried before the Hon. H. O. Speake. This action was brought by the appellee, George B. Martin, as the administrator of the estate of Nancy Martin, deceased, against the appellnat, the Memphis & Charleston Railroad Company, to recover damages for the alleged negligent killing by the defendant of the plaintiff’s intestate, the damages sued for, as fixed in the complaint being $30,000.

Heard before the Hon. John 0. Carmichael. The bill in this cause was filed by the 'appellee, T. S. Hendon, as guardian of Hugh McLain, against appellant, to remove a cloud from the title of the ward’s land, •described in the bill, by cancelling two deeds made by Hugh McLain to M.-P. Leith and H. W. Leith. The last mentioned deed conveyed only the mineral interests. The respondent claims through mesne conveyances the mineral interests in the lands described.

Tried before the Hon. Charles A. Senn. This was an action brought by the appellee against the appellant. The complaint contained three counts.

Tried before the Son. Charles A. Senn. This was an action brought by the appellant against the appellee to recover damages for the alleged wrongful protest of a note by said hank, made and executed by the plaintiff. There were many pleas and demurrers thereto and 'several rulings of the trial court upon the pleadings, but under the opinion on the present appeal it is unnecessary to set out these pleadings and rulings thereon.

Appeal, from the City Court of Birmingham. Tried, before the Hon. W. W. Wlllcerson. This action was begun by attachment, issued from the justice court of I. H. Benners, a justice of the peace in and for Jefferson county, Alabama, on the 28th day of June 1898.

Tried before the Hon. A. H. Alston. This was a statutory action in the nature of ejectment brought by A. E. Fields against Thomas B. Garren for certain lands specifically described in the complaint. The plaintiff showed title for the land sued for from the United States to the Louisville & Nashville Railroad Company; from that company to the North Alabama Land Company, by deed of warranty of title, and by mesne conveyances from the latter company to himself.

Heard before the Hon. Titos. H. Smith. The bill in this case was filed on March 31, 1898, by the-appellant, the District' Grand Lodge, No. 7, Independent Order1 of B’nai B’rith, a corporation organized under the laws of the State of Louisiana, against the appellees. The following facts were averred in the bill: One Ed Levy executed a mortgage to Marx & Co. to secure an indebtedness from said Levy.

Tried before the Hon. S. H. Spuott. This action was brought by the appellee, W. H. Plott, against the Southern Railway Company, and sought to recover damages for injuries to a stock of goods owned by the plaintiff, which was caused by an overflow, which flooded the plaintiff’s store wherein the goods were, and which was alleged to have been occasioned by an embankment contracted by the defendant across a creek. The complaint contained two counts.

Tried before the Hon. John C. Anderson. This was an action brought by the appellee, T. J. Spragins, against the Southern Railway Company, and counted upon the common counts, to recover an amount alleged to be due for cross ties furnished by the plaintiff to the defendant under a contract. The provisions of the contract and 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. Charles A. Senn. Thi-s 'was an action for false imprisonment brought by the appellee against the appellant. The averments of the complaint are sufficiently -stated in the opinion. The defendant pleaded the general issue and the following special pleas: “3.

<p> Bill in Equity to cancel a Deed as Fraudulent as against Existing Creditors. </p> <p>1. Conveyance to wife; void as against existing creditors; burden of proof as to consideration. — A conveyance of land, executed to the wife of a debtor by a third party, at the instance of the husband who had paid the purchase money, is void as against the latter’s existing creditors, and when assailed by them the burden is upon the wife of proving that the consideration did not move from the husband, but was paid with her separate funds and not with the funds of her husband, directly or indirectly; and in order to meet this burden the wife must affirmatively aver in her answer and clearly and fully show by her evidence the actual payment of the consideration, in what it consisted and how it was paid.</p>

Tried before the Hon. John C. Anderson. This was an action of ejectment brought by the appellant against the appellee. Plaintiff claims title by deed under the power of ¡sale in a mortgage, executed on the 4th of October, 1886, to Newhouse Brothers by F. IT. Threet.

Tried before tlie Hon. A. A. Coleman. The appellant, L. Grünewald Company, limited, instituted on June 25, 1898, an action of detinue against Jolin R. Copeland to recover the possession of a piano. The appellee, Susie Copeland, on July 2, 1898, interposed a claim to the piano sued for. Upon this 'Claim the 'Statutory trial of the right of property was liad.

Tried before the I-Ion. \rM. W. Wili-cersox. This was an action of forcible entry and unlawful detainer and was originally instituted in the justice court by the appellee against the appellant.

<p> Action by Employe against Employer to recover Damages for Personal Injuries. </p> <p>1. Risk voluntarily and knowingly assumed by employee. — In an action by an employe against an employer to recover damages for personal injuries sustained while operating a machine in me discharge of his duties, where the injury sustained is alleged to have resulted from negligence of defendant in failing to provide proper machinery, defects in that furnished, and in failing to provide a safe place whereon to work, the employer will not be held liable when the employe knowingly and voluntarily assumes the risk.</p> <p>2. Employer’s liability; delegation of duty by foreman. — An employer will not be held liable for personal injuries received by an employe while in the discharge of his duties under the direction of one acting as foreman by the request of the person employed by defendant to act as foreman, but who had no authority, express or implied, to appoint another in his place.</p>

Tried before tlie Hon. William S. Anderson. This action was instituted by the appellee against appellant as executor of the will of Thomas W. McDonald, deceased, to recover for medical services rendered by the former to the defendant’s testator. There were three counts, the first for work and labor done and due on the 20th of August, 1898; the second, on an account; and the third, an account stated.

Heard before the 1-Ton. William IT. Simpson. The bill was filed by Prank Beyer on the 27th June, 1899, against the defendant company, the National Building & Loan Association, its obieet being to have, a mortgage executed by plaintiff to defendant on the 1st day of June, 1894, on certain real estate therein mentioned cancelled as having been fully satisfied.

Tried before the Hon. William S. Anderson. , This was a suit in ejectment by the appellees against the appellant, to recover a strip of land; and the leading controversy ivas whether the «trip in suit was part of the lot No. 4 of the St. Louis tract, dr part of the Duncan tract.

<p>Appeal from the Probate Court of Jefferson.</p> <p>Heard before the Hon. J. P. Stiles.</p> <p>A 'sufficient statement, of facts appears in the opinion.</p> <p>cited State v- Dillon, 22 L. B. A. 124; Boyd v. Mills, 25 L. B. A. 487; Ellis v. May, 99 Mich. 538; Attorney-General v. Stillman, 108 Midi. 419; Attorney-General v. McQuade, 94 Micli. 438; Pearson v. Supervisors, 91 Ya. 322; Major v. Barker, 35 S. W. Bep. 543; Sproule v. Fredericks, 11 So. Bep. 427; Montgomery v. Oldham, 4_2 N. E. Bep. 474; Russell v. McDowell, 83 Cál. 70"; Tebbe v. Smith, 108 Cal. 101.</p> <p>.(1.) The irregularities were not sufficient to constitute maleonduet, fraud or corruption within the meaning of subdivision 1 of section 1667. — Taliaferro v. Lee, 97 Ala. 104. (2.) Where a case is tried without a jury in the court below, all reasonable presumptions are indulged in favor of the decision of the trial court upon questions of fact. — First Nat. Bank v. Hall, 119 Ala. 64.</p>

Tried before the Hon. Chas. A. Senn. This was an action by the appellee, H. L. Ayers, against the appellant, the Western Union Telegraph Company, for negligent failure to deliver a telegraphic message sent by appellee to his brother-in-law. At the trial there were motions to strike several parts of the complaint, but no mention of these motions were made in the bill of exceptions. The facts of the case are sufficiently shown in the opinion.

Heard before the Hon. Thos. H. Smith. The bill in this case was filed by the appellee, Sadie E. Wing, against the Supreme Lodge Knights and Ladies of Honor. The purpose of the bill was to relieve complainant of a technical failure or omission by H. J. Welch to comply with a by-law of defendant in reference to changing the beneficiary named in her relief certificate and to decree the payment of the money to complainant.

Tried before the Hon. H. 0. Speake. 'This action was brought by the appellant, William Richter, against the appellees, Mary A. Koopman and John 'G-erdes, a partnership, for damages to his property resulting from the negligent storage of explosives. Judgment and verdict were had for the defendant, and plaintiff appeals. The appellee moved to strike the bill of exception® on the ground that it was not signed within the time fixed by law.

Tried before the Hon. William S. Anderson. This was a statutory action of ejectment brought by the appellee, the Blacksher Company, a corporation, against Fannie B. Davis, the appellant; and sought to recover certain lands specifically described in the complaint. The cause was tried upon the plea of the general issue.

Tried before the Hon. William'S. Anderson. This was an action brought by the appellees, Edwin B. Kirkbride, A. S. Lyons, H. T. Inge, Cary W. Butt and others, against the appellant, J. Curtis Bush, in which the plaintiffs sought to recover $250 for the breach of the conditions of an injunction bond made by the defendant on March 14, 1900, which bond was payable to plaintiffs and one Delchamps in the sum of $1,000 and conditioned for the payment of 'all damages which any…

Tried before the Hon. A. H. Alston. This was an action of assumpsit brought originally by the Charles Munson Belting Company to recover for an amount alleged to be due upon an account. The complaint contained the common counts. The appeal is prosecuted from a judgment in favor of the appellee.

Tried before the Hon. William S. Anderson. This was a -common law action of ejectment, brought by the appellant against the appellee. The cause was tried upon issue joined upon the plea o-f the general issue. The plaintiff offered to introduce in evidence a deed from E-dward Gage, trustee, through which deed the plaintiff claimed title.

Tried before the Hon. James J. Banks. This was a statutory action of ejectment, brought by the appellant, W. T. Brazel, against the New South Coal Company, to recover the coal and mineral interest in certain lands specifically described in the complaint. Upon the trial of the cause the jury returned a verdict in favor of the plaintiff.

Tried before the Hon. William S. Anderson. This was an action brought by the -appellant, Mary A. Southworth, as administratrix of the estate of James Soutliwortli, deceased, against Thomas J. Shea, to recover damages, for the -death of the plaintiff’s intestate, which was alleged to have been caused by reason of the negligence of the defendant.

Tried before the Hon. N. H. Denson. The facts of the case are sufficiently stated in the opinion. The court should have granted the motion for a new trial. — Cobb v. Malone, 92 Ala. 630; Mary Lee C. & R. Co. v. Chambliss, 97 Ala. 180; Shepard v. Doiclonq, 103 Ala. 566; Bir. Elec.-R. Co. v. Clay, 108 Ala. 236; Davis v. Miller, 109 Ala. 600.

Tried, before the Hon. Williaxi S. Anderson. This action was brought by the appellee, J. I. Bizzell, against the L. & N. R. R. Co., to recover $2,000 damages for the ejection of plaintiff from one of thepassenger trains operated by the defendant. The original complaint consisted of but a single count, but an additional count was added by way of an amendment.

Tried before the Hon. A. A. Coleman. This is an action on a promissory note brought by the appellant, E. W. Payne, as the executor of F. M. Payne, against P. M. Long as maker of the note.

<p> Petition for an Order for Collection of Alimony awarded under a Former Decree. </p> <p>1. Chancery practice; reservation of right to enforce decree upon the happening of contingency. — Where a court of eguity renders a decree providing for payments of money in-the future, and the ability of the party to pay against whom the decree is rendered is dependent upon future contingencies, it is proper for the court to reserve the power to control the enforcemeat and execution of its decree.</p> <p>2. Alimony; petition for collection under a former decree. — Where a .court of equity having granted a decree for divorce and alimony, reserving the.power to control the enforcement and execution of its decree, renders a decree for unpaid alimony, upon which decree execution is issued, and the decree, on account of the poverty of the defendant, provides that no other "or'further "execution shall be issued until the further order of the court, and complainant files a petition for collection of unpaid alimony, and the petition does not aver any change ■in the financial condition of 'the defendant since the rendi- ■ tion of the last decree, or that he is able to further pay alimony, and the .answer of the defendant shows a continuation of his poverty-stricken condition, it is proper to dismiss the petition.</p>

Tried before the Hon. William S. Anderson. This is an action brought by appellants against appellee, • and 'counted upon the breach of a contract entered into by Hieronymus Brothers, appellants, and Bienville Water Supply Company, appellee, in January, 1894, by which the water company agreed to furnish water to appellants for general use in their saw mill, at a special rate, to be paid, for monthly, and also to furnish water to a fire hydrant at a stipulated rate, payable in…

Tried before tbe ITon. J. C. Kichardson. Tbis action was brought by tbe appellee, tbe Alabama & Georgia Lumber Company, against W. H. Tisdale and Fred Moesser, appellants, for the enforcement of the statutory lien against tbe property of W. H. Tisdale, as owner and proprietor, for material furnished Fred Moesser, tbe contractor.

Tried before the Hon. John P. Hijbbabd. This was an action of trespass brought by the appellant,. E. L. Clewis against Malone & Sons to recover damages for the wrongful taking of a stock of goods. G. E. Clewis on the 4th day of January, 1895, sold his stock of merchandise, which consisted of whiskies, wines, etc., to the plaintiff. At the time of this sale he was indebted to Paul Jones & Co. for goods lie had bought from them six or eight m'oriths before the sale.

Heard before the Hon. William H. Simpson. The appellant, R. L. Stephenson, on the 27th day of September, 1894, executed a mortgage to J. T. Allison on land described as “one house and ten acre® of land lying two- miles southwest of Decatur, on the Danville road, and being the north end of the northeast half of the northwest quarter of section 36, township 5, range 5 west,” in Morgan county, Alabama.

Heard before the 1-Ion. Jere N. Williams. In this ease the appellee, Phillips & Crew Co., sold to T. E. Shadgett a piano.

Heard before the Hon. William H. Tavloe. This case was before the Supreme Court at the November term, 1899, having been appealed from the chancery court of Mobile, where Lewis H. Bust had brought his bill to compel the Electric Lighting Company to deliver to him certain generators and switch boards described in the bill, and to have the legal title thereto declared to be in complainant.

Tried before the Hon. W. J. Pearce. On June 5, 1899, the appellants and others describing themselves as “persons living or owning real property adjacent to a stock law district in the county of Clay,” and desiring to have certain adjacent territory incorporated in such stock laiv district, filed. in the commissioners court of Clay county, a petition in which said adjacent territory wais described by government numbers, and in which petition it was averred that it was to the…

Tried before the I-Ion. John Moore. William Oakley died intertate seized of certain lands situate in Bibb county.

Heard before the Hon. A. D. Sayre. The bill in this case was filed by the appellee, F. M. Billing, against the appellants, Ignatius Poliak and others.

Appeal 'from the City Court of Talladega, in Equity. Heard before the Hon. G. K. Miller.

Tried before the Hon. John P. Hubbard. The facts of the case are sufficiently stated in the opinion. . A sale made hy -a trustee under the order of court to himself is not void, but voidable at the election of adverse parties seasonably made. — McMillan v. Rushing, 80 Ala. 402; Anderson v. Buckley, 126 Ala. 623. So that the fact hat plaintiff may have been selling to himself makes it none the less a sale, though there may be an irregularity.

Heard before the Hon. A. I). Sayre. This is the second appeal in this case. The former appeal was from a decree of the chancellor sustaining demurrers to the bill. That decree was affirmed.

Tried before the Hon. A. A. Coleman. This was a statutory action of ejectment brought by the appellant, S. I. Russell, against the appellee, Silas W. Peavy. The facts of the case are sufficiently stated in the opinion.

Heard before the Hon. J. J. Mayfield. This was a statutory action of detinue brought by the appellant, H. J. Ward, against the appellee, C. S. Shirley, to recover possession of a mule and the value of the use and hire' thereof during the detention. The defendant pleaded the general issue, and the cause was tried upon issue joined upon said plea.

Tried before the Hon. A. D. Sayre. This was a statutory action of ejectment, brought by the appellant, Harry Hereford, against the appellee, Lucy Hereford, to recover a certain lot or tract of land specifically described in the compliant. The facts of the case necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion.

ÁIT’KAL from the Probate Court of Montgomery. Heard before tlie lion. J. B. Castox. Tlie appellants, S. T. Pruett and O. J. Pruett, filed a petition in tlie probate court of Montgomery county asking that letters testamentry issued out of said court to Ada B. Pruett in tlie matter of tlie last mil and testament of Betli G. Pruett, deceased, be revoked.

Tried before the Hon. J. J. Mayfield. This was an action brought by the appellee, Robert ■Crocker, a minor, by his next, friend, against the Alabama Great Bout-hern Railroad Company, to recover damages for personal injuries. The complaint- as amended contained three counts.

Tried before the Hon. A. A. Coleman. Tins action was brought by the appellee against the appellant. The material facts of the case necessary for an understanding of the decision on the present appeal are sufficiently stated in the opinion.

Tried -before the Hon. John' H. Disque. This was a statutory action of ejectment brought against the appellants, to recover certain lands specifically described in the -complaint. The facts of the case-necessary to an understanding of the only question reviewed on the present appeal are sufficiently -stated in the opinion.

Tried before the Hon. John Moore. This was a statutory action of ejectment 'brought by the appellee, Grace Gardner, against the appellant, the Tennessee Coal, Iron & Railroad Company, to recover certain lands specifically described, in the complaint. The facts of the case are sufficiently stated in the opinion.

Appeal -from tbe City Court of Bessemer. Tried before tbe Hon. B. C. Jones. This was an action of detinue brought by tbe appellant, Z. T. Carwile, against tbe appellee, Emma Oar-wile, to recover a cow and calf. It was shown that tbe plaintiff and defendant were‘husband and wife, but had ■separated and were living apart.

Heard before the Hon. J. B. Gaston. This case arose on the offering for probate by Stewart McQueen, as executor, a paper alleged to be the last will and testament of Julia Wilson, which was contested by J. J. Woodward, guardian ad litem for Mary It. Wilson, a non compos mentis, and Eleanor Wilson, a minor, who were a sister and a niece, respectively, of the deceased.

Heard before the Hon. W. L. Parks. The bill in this case wasi exhibited in behalf of appellee by her next friend against her guardian, Thos. J. Scott, and the sureties on his bond. The said Thus. J. Scott, having died pending the suit-, the same was revived against Mary A. Scott- as his executrix.

Tried before the Hon. John P. Hubbard. This action was brought- by the appellee, M. M. Brooks, against tlie appellant, the Continental Fire Insurance Company.

Tried before the Hon. J. C. Richardson. This was a, suit brought by. the appellee. against the Louisville & Nashville Railroad Company, in which the plaintiff sought to recover from the defendant $67.70. The complaint contained the common counts. The defendant pleaded the general issue and the following special plea of set off: “2.

Tried before the Hon. J. C. Richardson. On the 6th day of July, 1897, the Louisville & Nashville Railroad Company sued out an attachment from the circuit court of Montgomery county against C. A. Sharp & Co., a partnership composed of Orimer K. Sharp and Josephine A. Sharp, which was levied by the sheriff of said county by serving a writ of garnishment on J. C. Haas & Co. on the same day.

Tried before the Hon. N. D. Denson. This was a statutory action in the nature of ejectment, brought by the appellants, as heirs at law of Mrs. Mary Fitzpatrick, who died in the year 1874, having previously executed her last will and testament which was duly proved and admitted to probate in the probate court of Macon county.

Heard before the Hon. Thos. H. Smith. The bill in this ease was filed by Morgan Oliver against P. J. Dean, as administrator of A. W. Oliver and J. L. Blackburn to cancel a deed made by complainant to Dean’s intestate. The deed of the complainant Morgan Oliver and wife to A. W. Oliver, to the land in question, was executed on the 19th November, 1894, and the bill was filed on the 25th January,' 1899.

sd.en, in Equity. Heard before the Hon. John H. Disque. The bill in this case w.as filed by the appellees against the appellants, Bluthenthal & Biekert and Little & Hays; and sought to have a mortgage executed by Little & Hays to Bluthenthal & Biekert declared a general assignment, on the ground that said mortgage conveyed substantially all of the property of the mortgagors.

Tried before the Hon. J. C. Richardson. This aetipn was brought by appellants against appellee, and counted upon a promissory note given by appellee to appellants. The defendant pleaded three special pleas, besides the general issue and payment.

Tried before the Hon. J. C. Richardson. This was a statutory action of ejectment, brought by the Central of Georgia Railway Company against the Southern Iron Works, to recover a tract or parcel of land, which was described in the. complaint as follows: “Commencing on the east side of McDonough street one hundred and forty-two (142) feet north oí the intersection of McDonough and Pollard street and running east parallel with Pollard street three hundred (300) feet to the west…

Axu^eal from the City Court of Montgomery. Tried before tlie Hou. A. D. Sayre. This action was upon certain promissory notes, containing a waiver of exemptions executed by one Caldwell as principal and appellees as sureties and payable to appellant.

Aitioal from the Chancery Court of Dallas. Heard, before the Hon. Thos. H. Smith.

Tried before the Hon. A. A. Coleman. This was an action by the appellee against the appellant, to recover damages for the negligent killing by defendant’s train of plaintiff’s mare and injury done to a colt. The cause was tried on the plea of not guilty.