Volume 132 — Alabama Reports

Tried before Hon. A. A. Evans. The appellant, Wash Pugh, was convicted of murder1 in the second degree, and appeals.

Tried before Sou. John. P. Hubbabd. Tbe appellant, Joe Buford, was jointly indicted with Dock Legrand and two others for assault with intent to muirder one Knowles. The appellant moved for asev-erante, which was granted.

<p>Appeal feom Jackson Circuit Court.</p> <p>Tried before Hon. J. A. Bilbro.</p> <p>Tlie defendant was convicted of robbery and appeals.</p>

<p> Indictment for Bobbery. </p> <p>1. Reasonable doubt; individual jurqrs; charge. — In a criminal case a charge which instructs the jury that “if any individual juror is not convinced of defendant’s guilt beyond all reasonable doubt, and to a moral certainty, the jury cannot convict,” is proper, and should be given at defendant’s request.</p>

Tried before Hon. John H. Bisque. The appellant was tried and convicted for an assault and battery. The witness for the State testified that defendant came to her house and came in without knocking, and asked where her husband was, saying thait he wanted to sell Mm a gun. She told the defendant where her husband was, and defendant came to the fire where she ivas sitting and sat down.

<p> Indictment for Carrying Concealed Pistol. </p> <p>1. Evidence as to defendant’s ownership or possession of pistol; when immaterial. — Where the evidence for- the State tended ■ • to show that defendant carried a pistol concealed at a picnic about twelve, or one o’clock, it is immaterial whether he owned a pistol or had one about his person at his home in . the morning of that day.</p>

Tried before Hon. A. A. Evans. The appellant ivas tried and convicted under an indictment which charged that he “did falsely and maliciously speak of and concerning Mattie Newsome, in the presence of Archie Evans and Ed Gutchen, charging her with a want of chastity, in substance as follows: That Archie Newsome was keeping* Ms sister, Mattie Newsome, against the peace and dignity of the State of Alabama.” On the trial of the ease the State introduced Archie Evans as a…

Ait'eal from tlie City Court of Montgomery. Tried before Hon. W. H. Thomas. ■ The defendant, Sam Cartiledge, was indicted and convicted for gaming under 'section 4792 of the Code. During tlie trial the defendant objected to questions to certain witnesses, which -objections were -overruled, and exceptions reserved by defendant. But it does not appear that any of these questions were answered.

Tried before Hon. T. L.' Borom. Will Bnss was convicted of gaming, and appeals.

AppExVb from Dale Circuit 'Court. Tried before Hon. A. A. Evans. Prosecution of JET.. C-; Boyett for.-a violation of section 5624 of tlie Code, instituted in the county court of Dale county, upon.tlie affidavit or complaint of one Amos Chancey. From a judgment of conviction in the county court defendant appealed to the circuit court.

Tried before Hon. J. A. Bilbro. The facts are sufficiently stated in the opinion. cited on tlie question of variance Felix v. State, 18 Ala. 726; State v. Plunket, 2 Stew. 11; Agee u. . State, 113 Ala. 52; O'Connor v. State, 30 Ala. 9; McGlerkin v. State, 105 Ala. 112. cited Busby v. State, 77 Ala. 67; Beasley -v. State, 59 Ala. 20; Wharton on Grim. Ev. (8th ed.), §§ 125, 132.

Tried before Hon. T. L. Borom. Indictment against 1). F. Hinton for selling liquor without a license. The opinion states the facts. No brief came to the hands of the Reporter. cited Carl v. State, 89 Ala. 97; Ward v. -State, 78 Ala. 417; Elclrklge v. State, 126 Ala. 63; Brantley v. State, 91 Ala. 74; Mirkle v. State, 37 Ala. 144; Worcester’s Dictionary, “vinous,” “wine;” Standard Dictionary, “vinous,” wine;” Black on Intox. Liquors, § 5, pp. 5 and 6; 17 Am. & Eng. Ency.

Tried before Hon. J. A. Bilbro. The appellant ivas tried and convicted under an indictment which charged that “Joe Winter did sell or give nway spirituous, vinous or malt liquors within five miles of the Methodist church house located in the town of Center in Cherokee county, Alabama, against the peace and dignity of the State of Alabama.” testified that in Cherokee county, and within twelve months before the finding of this indictment, he went to the house of the defendant…

<p> Indictment for Belling Liquor to a Minor. </p> <p>1. Selling liquor to minor; consent of parent; Code, § 507S. — Tlie consent of a mother for the sale of liquor to her minor son “whenever he wants it,” • is a general and continuing consent, and a sale thereafter made during the son’s minority, such consent not having been withdrawn, is not violative of section 5078 of the Code, punishing the sale of malt liquors to a minor “without the consent of the parent or person having the management or control of such minor.”</p> <p>2. Same; sale Toy cleric. — A sale to a minor by a liquor dealer through his clerk is as much protected by the parent’s consent made to the liquor dealer, as if the sale were made by him in person, where the fact of such consent was communicated to the clerk at the time it was given.</p>

Heard before Hon. Gf. K. Miller. This was a petition for habeas corpus instituted by J. Hazen Foster, seeking to be discharged from the custody of Lucien C. Brown, judge advocate of ¡the Third Regiment of Alabama National Guards, Borden H. Biw, captain, and others constituting or claiming* to constitute a military court martial, called for the purpose of trying* petitioner by count martial upon the charge of “Conduct to the prejudice of good order and military discipline, in…

Heard 'before Hon. A. A. Coleman. Information in the nature of quo warranto under section 3420 'of the Code, filed by A.' H. Davis in the name of the State against John Johnson to oust him from the office of policeman of the city of Birmingham. The information showed that he was not a resident of the city, and set out the ordinance and acts referred to in the opinion.

Heard before Hon. O. Kyle. Tliis was a 'statutory proceeding under section 3420 of tlie Code, instituted in tlie name of tbe State on tbe relation of Tbomas B. Williams against S. J. Griffin and 'four associates, for tbe purpose of inquiring into ■and testing tbe legality of tbeir claim to exercise tbe privileges and powers of “tbe Text Book Board of Cull-man 'County, Alabama,” under tbe Act of tbe general assembly mentioned in tire opinion.

Heard before Hon. 0. Kyle. Information in ¡the nature of quo warranto under sec-ions 3417, et seq. of the Code for the forfeiture of the charter of the Southern Building & Loan Association. — A general allegation of usurpation is sufficient. — 103 Ill. 511; 6 Cowan, 196; 24 Wis. 63; 14 Oal. 43; 16 Cal. 308 The acts charged authorize the forfeiture of the charter. Endlich on B. & L. Assoes., §§ 54, 311, 328, 505; High’s. Extraord. Leg. Rem.

Heard before Hon. A. A. Coleman. argued tliat it was the intention of the legislature that- the poll tax provided for in the charter of the city of Birmingham was to he in lieu of the State tax, and that any other' construction would render section 51 of said charter unconstitutional, citing State v. Southern By. Oo., 21 So. Hep. 589; Schultes V. Eherly, 82 Ala. 212; N. C. é St. L. By. v. At talla, 21 So. B,ep. 150; Wet more v. State, 55 Ala. 198.

Appeal 'from Marengo Circuit Court. Heard before Hon. John C. Anderson. The opinion states all material facts. in support of the proposition that mandamus was the proper remedy, cited 4 Ala. 569, 393, 357.

<p> Petition por Mandamus. </p> <p>1. Action by infant by next friend,; amendment. — Where a plea in abatement to a petition "for mandamus, by an infant suing by nest friend, has been sustained on the ground that the next friend is a married woman, the petition may be amended by naming another person as next friend.</p>

Heard, before Hon. W. H. Simpson. The nature and averments of the bill are sufficiently shown by the opinion, with the exception of the aver-ments regarding the concealment by Guyton, and the averments of subdivision 4 of paragraph 3 of the bill.

Heard, before Hon. W. L. Parks. The bill was filed by tbe appellees against appellants, and sought to set aside certain transfers and conveyances made by H. B. Metcalf and F. Gr.

Heard before Hon. Thomas H. Smith. The bill in this cause was filed by James Q. Smith, Jr., suing by next friend, against S: E. Woodruff and others, and sought an accounting, the setting aside of a certain mortgage, and other relief. In view of the ground upon which the opinion is based, it is not deemed material to set out the pleadings or evidence in full. The case has been once before in this court, and will be found reported in 127 Ala. 65.

Tried before Hon. H. C. Speake. Tlie Fanners & Merchants National Bank, having two notes signed by L. M. Peevey, presented them, without verification, to the administratrix of his estate on July 6th, 1898, and after the estate was declared insolvent filed them, duly verified, in the office of the probate judge.

Probate Court. Tried before Hon. W. R. White. Appeal by the guardian ad litem of a minor heir of G-. W. Killgore from the decree of the probaite court on final settlement of the accounts of Bell, administrator of said estate. Voucher No. 4 was as follows: “Troy, Ala., Oct. 20,1899.

Heard before Hon. W. H. Simpson. The opinion states the facts. (1.) A conveyance of exempt property is valid, without regal'd to the- consideration or the reservation o>f a benefit therein. — Clems v. Malone, 119 Ala. 312; Kennedy v. First Nat. Bank, 107 Ala. 170; Poliak v. McNeil, 100 Ala. 203; Fuller v. Whitlock, 99 Ala. 411; Hodges v. Winston, 95 Ala. 514; CMpman v. Glennon, 98 Ala. 263.

Heard before Hon. W. H. Simpson. The bill was filed by Berry, Demoville & Co., as a creditor of Cross, against T. M. Cross, Mattie L. Young, S. P. Ryan, L. P. Troup -and John L. Brock, and sought to set aside as fraudulent a mortgage from Cross to Young upon 'certain store fixtures and a stock of drugs, goods, wares and merchandise in Decatur, Alabama, as well as upon any goods that -might thereafter be purchased and -added to the stock before the debt was paid.

L-learc[ before 1-Ion. \`V. L. I-'ARICS. The bill was filed by 0-laser, Kuder & Ottensosser and other creditOrs of J. Meyrovitz `against him and certain attaching `creditors, and sought to set aside the attachments as frauduh cut and collusive. From a -decree for complainants defendants appeal. cited 65 Ala. 572; 78 Ala. 491; 114 Ala. 506; 26 So. Rep. 311; 28 So. Rep. 527; 176 U. S. 98, 189.

Heard before Hon. Rioi-iarp B. Kelly. The bill was filed by the Montgomery Fertilizer Company and sought to set aside as fraudulent certain transfers and conveyances mentioned therein. The facts are sufficiently stated in the opinion. From a decree of the chancellor granting the relief prayed defendants appeal. i i ' i , (1) The bill as amended was multifarious. (2) Where a bill is filed in a double aspect each aspect must entitle complainant to relief.

Heard before Hon. R. B. Kelly. Bill in equity by appellees and other creditors of L. C. Robinson against Robinson and A. B. Baxley, to have a certain bill of sale from Robinson to Baxley declared a general assignment for the benefit of all Ms creditors and enforced as such. A motion to dismiss the bill for want of equity and demurrers to the bill were overruled, and ithe defendants appeal.

Heard before Hon. W. H. Simpson. The bill was filed by Ariadne Rice, by next friend, against Robert Andrews and the sureties on his bond as register in chancery, J. J. Mitchell and W. P. Campbell, seeking to charge them for money belonging to complainant, which the register had deposited in the bank of said W. P. Campbell and lost through the bank’s failure and to set aside certain decrees based on a fictitious or false report of said register.

Heard before Hon. W. H. Simpson. The bill was filed by Mrs. Kate M. Johnson (to foreclose a mortgage which had been executed to her by R. L. Ross. Ross’ only heir and devisee, Mrs. Blair, and her husband, H. W. Blair, who was administrator of Ross’ estate, were made parties .defendant.

an.cery Count. Heai'd before Hon. W. H. Simpson. In view of the 'dismissal of tbe appeal it is not necessary to state tbe facts of tbe case. 'Tbe cause was submitted in the 'Supreme Court, no motion being made by appellee to dismiss the appeal.

Heard before Hon. Richard B. Kelly. Bill for tbe foreclosure of a mortgage executed by W. C. Pulliam and Maria Pulliam to Hicks, Lee & Co., a firm composed of T. A. Hicks, A. B. Lee and J. E. Heard, and transferred to T. A. Hicks, tbe complainant. The defendant Maria Pulliam filed a cross-bill, alleging that said mortgage was given on ber property to secure ber husband’s debt, and praying a cancellation thereof for this reason.

Heard before Hon. William H. Simpson. The bill was filed for the foreclosure of a certain mortgage or deed of trust alleged to have been executed by Mattie Haley to the American Building, Loan & Tontine Savings Association and R. J. Black as trustee. Said Mattie Haley died before the execution of process, and the suit was revived against her administrator and heirs at law.

Heard before Hon. J. R. Barker, Special Chancellor. This case has been twice before in this court. See Smith v. Bmith, 102 Ala. 516; s. c. 106 Ala. 298, where the aver-ments of the bill are shown. On submission for decree on the pleadings and proof the chancellor dismissed the bill.

Heard before 1-Ion. R. B. Kelly. Tills was a bill filed by A. E. Williams to enjoin the foreclosure of a mortgage executed by liim to H. B. Tulane, the bill being filed against Louisa V. Ividd, executrix of Tulane’s estate. A motion was made to suppress the deposition of the witness Hancock because of his failure and refusal to answer certain cross-interrogatories. The other material facts are shown by the opinion.

<p> Bill in Equity for Foreclosure of Mortgage. </p> <p>1. Bill to foreclose mortgage; parties to — 'Where a bill is filed by the assignee of a mortgage for the foreclosure of same, his assignor, in whom the legal title to the land rests, is a necessary and indispensable party.</p> <p>2. Assignment of mortgage; when does not pass legal title. — An assignment of a mortgage, containing the necessary words of conveyance, but neither acknowledged nor attested, as required by Code, §§' 984, 982, is insufficient to pass the legal title to the assignee.</p> <p>3. Parties to bill in equity; when objection may be made for want of proper. — Objection to a bill for foreclosure for want of necessary parties, in whom the legal title is vested, may be made at the hearing, on error, or may be taken by the court ex mero motu.</p> <p>4. Assignment; when contains words sufficient to pass the legal title. — An instrument in writing and under seal, whereby the grantors “assign, transfer, set over and convey all claims held by us against” a certain person, • “whether notes, mortgages, accounts or claims of any other description, and all our right, title and interest in and to any and all property, real and personal, conveyed to us in said claims above described,” is sufficient if attested or acknowledged under Code, §,§ 982, 984, to convey the legal title vested in the signers as transferees of a mortgage executed by such person.</p>

Heard 'before Hon. W. H. Simpson. The bill was filed by W. A. Young' and T. J. Young against John M. Walton, T. L. Crew and other's, and sought to foreclose a vendor's lien. The opinion sufficiently states the facts.

Heard, before Hon. A. D. Sayre. The bill wag filed by tlie appellant 'against Rebecca M. Pollard and lier husband, diaries T. Pollard. The prayer of tbe bill was that respondents be required to elect whether they would disaffirm and avoid the purchase by complainant, at its own sale, of the land embraced in a mortgage to it by respondents, and offered, in the event of disaffirmance, to do equity generally and to account for rents.

Heard before Hon. W. L. Parks. The' bill was filed by C. V. Bnrdeshaw against Joe Baker for the redemption of land sold under mortgage. Demurrers to. the bill were overruled, ‘ and defendant ap: peals. Tlie opinion sufficiently shows the averments of the bill and. the grounds of demurrer. (1.) The bill should aver that complainant- surrendered possession to the purchaser in ten days after the sale. — Henderson v. Ha niblick, 29 So.

Heard before 1-Ion. Richard B. Kelly. The bill was filed by W. D. Driver against the Magnetic Ore Company, a corporation, and W. C. Robinson, who, it was alleged, had bought the land from the Magnetic Ore Company after the rendition of the judgment in the ejectment suit, and with notice of complainant’s possession of the land and his rights in the premises.

<p> Bill in Equity for Injunction and Accounting. </p> <p>1. Equity practice; decree; submission; dissolution of injunction. Where a motion to dissolve an injunction has been filed, and the order and note of submission shows only that “on respondent’s motion the cause is submitted for decree. Complainant submits on amended bill and exhibits thereto. Respondent submits on motion to dissolve the injunction and on sworn answer to amended bill,” the submission is only on the motion to dissolve the injunction, and the court cannot enter a decree sustaining a demurrer to the bill incorporated in the answer, or dismiss the bill for want of equity, no motion to dismiss having been made.</p> <p>2. Dissolution of injunction on sworn answer. — Where the aver-ments of the hill are positively denied hy sworn answer, a motion to dissolve the injunction will he granted.</p>

<p>Appeal from Montgomery Chancery Court.</p> <p>Heard before Hon. W. L. Parks.</p> <p>The opinion states the facts.</p> <p>cited Youngblood v. Youngblood, 54 Ala. 486; Eennon v. Wright, 70 Ala. 434; Phelps v. Elliott, 35 Fed. Rep. 455; Boone v. Ghilds, 10 Pet. 177; Gameal v. Banks, 10 Wheat. 181; 1 Beach on Mod. Eq. Prac., § 100; 2 Beach on Mod. Eq. Prac., § 790.</p> <p>cited Harrell v. Ellsworth, 17 Ala. 576; Mayor, etc., v. Rodgers, 10 Ala. 48.</p>

Heard before Hon. J. W. Mabry. The bill was filed by Harris against Selma Bridge Company, a corporation, Simon Maas, and L. E. Jef-fries and Emil Gilman, Jr., as assignees of the Commercial Bank of Selma.

Heard before Hon. J. W. Mabry. Tbe bill was filed 'by Lucy 0. Cawtlion against tlie City National Bank of Selma, T. J. Rowell, Florence Vaughan, and certain other legatees named in the will of Florence C. Carlisle.

Heard before Hon. Richard B. Kelly. Tlie bill was filed by Rudolph Elirman against William H. Merritt and M. J. Bond, who owned all the stock in the Merritt & Bond Lumber Company, a corporation, and sought the rescission of a contract whereby 'complainant purchased one-lialf of the stock in said corporation, on account of alleged fraudulent representations inducing ¡the purchase.

Heard before Hon. Thos. H. Smith. The bill in this ease was filed by tlie American Freehold Land Mortgage Company against the appellant, Nareissa Tait.

Appeal -from Geneva Chancery Court. Heard before ITon. W. L. Parks. This was a bill filed by Sylvester Martin, Jr., and other children of Sylvester Martin, Sr., for the purpose of declaring and enforcing a resulting trust in certain lands, the deed to which was taken in the name of Martin, Sr., but which were 'alleged to have been paid for by complainants’ uncle for their use and benefit.

<p> Bill in Equity to Reform Deed for Mistake. </p> <p>1. Reformation for mistake, when granted; burden of proof. Courts of equity do not grant reformation upon a probability, or even upon a mere preponderance of the evidence, but only upon a certainty of error, and the burden is always on the complainant in such cases to show the mistake by evidence that is clear, exact, convincing and satisfactory.</p> <p>2. Same; when not granted. — Where a bill is filed by an executor to reform for mistake a deed made to his deceased testator and testator’s wife, the mistake alleged being in the insertion of the wife’s name as a grantee, and the draughtsman of the deed testified that the wife’s name was inserted by him without any authority or direction from the htisband, and the deed was delivered to the husband, for examination and kept by him for a day before its execution; and the deed was to effectuate a division of lands between said husband and the grantors .therein, who were joint owners with him; and from the date of the execution of the deed to the date of the husband’s death, a period of seven years, .he never mentioned that any mistake was made in the deed, but exercised dominion and control in the cultivation and renting of the lands; and defendant’s evidence shows that the wife claimed an undivided interest in the land which was recognized by the husband, — the evidence is not sufficiently clear, exact, convincing and satisfactory to justify a reformation of the deed.</p>

<p> Bill for Dissolution and Settlement of Partnership. </p> <p>1. Partnership; right of one member to exclude another. — One member of a partnership has no right to exclude another therefrom against his will; and, having done so, can be held liable on a bill to dissolve and settle the partnership.</p> <p>2. Partnership; settlement, when binding. — When partners, who are sui juris, make a dissolution and settlement of a partnership, such settlement is binding between them, and cannot be opened except for fraud, accident or mistake.</p> <p>3. Partnership; partial settlement on dissolution. — On dissolution of a partnership, the partners may make a partial settlement of partnership matters, which is binding only so far as it goes and need not have the effect of estopping either party to seek and enforce a final settlement.</p> <p>4. Same; burden of proving settlement of partnership. — Where complainant, in a suit to dissolve and settle a .partnership, has alleged and proven the existence of the partnership, and defendant .claims that the partnership has been settled, the burden is on the defendant to establish the defense of settle- ' ment.</p>

Appear from Selma City Court in Equity. Heard before Hon. J. W. Mabry. The bill was filed by Elizabeth P. Weaver, as executrix of the estate of Virgil Weaver, deceased, against Yirgllia B. Barr 'and others, and 'sought to have the administration of said estate removed from the probate court into the city court of Selma, a construction of the will of said Y. G-. Weaver, and a setting apart of dower and homestead in said estate to complainant, who ivas the widow of testator.

Heard before Hon. Richard B. Kelly. The bill was filed by Alexander Davis against Annie Davis, and prayed a divorce a vinculo matrimonii on the ground of voluntary abandonment. The defendant was a non-resident. Complainant averred and proved that he had been a bona fide resident of this State for one year next preceding the filing of the bill.

Heard before Hon. John C. Carmichael. The 'bill was filed by Mary E. Pearce against her husband, J. Gus Pearce, and sought a decree for alimony and support and maintenance out of her husband’s estate. No divorce was prayed. The chancellor granted the relief prayed, and defendant appeals. cited 2 Am. & Eng. Ency.

Heard before Hon. A. D. Sayre. This was a bill in equity filed by Frank W. Lide against Lemuel Parle and others, and sought to declare and enforce a constructive trust, and an accounting. Demurrers to the bill were sustained by decree rendered May 29th, 1900, which recited: “Complainant has thirty days in which to amend said bill so as to give it equity or it will stand dismissed.” The appeal was taken on July 27th, 1900.

Heard before Hon. A. D. Sayre. This was an action by C. F. Bryant and others against W. H. Parks, register in chancery for the city court of Montgomery, and the surety on his official bond, for a summary judgment for failure to m.y over moneys collected by him on the sale of property under decrees of the court. The motion was granted, and the defendants appeal. filed an elaborate printed brief arguing tliat tbe judgment granting tbe motion was erroneous for various reasons.

<p> Petition to Vacate Appointment of Administrator. </p> <p>1. Jurisdiction of courts; court first acquiring jurisdiction. — The court first assuming jurisdiction of a cause, the subject matter being within the competency of such court, must he al- . lowed to pursue and exercise its jurisdiction to the exclusion of all co-ordinate tribunals.</p> <p>2. Jurisdiction of probate courts in granting letters of administration; conflict of jurisdicton' between courts of two coun-tes. — Where the probate court of one county has assumed jurisdiction of an estate, upon petition filed therein for the probate of a will, reciting the place of residence of the alleged testator as being in that county and containing other jurisdictional averments, and has appointed a special administrator of such estate to act pending a contest of the probate of the will, — an appointment of an administrator of said estate by the probate court of another county, on petition filed therein while the proceedings in the other court are pending, will he vacated and set aside: the court first acquiring jurisdiction being entitled to retain it to the exclusion of the other court.</p>

Tried before Hon. J. B. Gaston. This is an appeal by George D. Noble, Ruth Hooker ■and D. S. Woodworth, executors, from a decree of the probate court upon the final settlement of the estate of Jesse Hooker, deceased.

Tried before Hon. A. A. Coleman. This was a petition filed in the probate court of Jeff er-son county,by Mrs. M. J. May and another, as heirs at law and distributees of the estate of Jesse A. Bozeman, deceased, against M. E. Bozeman, the administratrix of said estate, whereby the removal of said administratrix was sought on several grounds. The third ground as amended (but which is numbered 4) was as follows: “Petitioners aver that said.

Tried before Hon. O. Kyle. Action on common counts. Count two was as follows: “Plaintiff claims -of the defendant itlie sum of one hundred and forty-five and 77-100 dollars, for goods, wares and merchandise delivered to the defendant at his instance and request, together with interest thereon from the 28th day of April, 1900.” Count three differed only in ithat it substituted the words “had and received 'by defendant” for the words italicized in count two.

Tried before Hon. Citas. A. Sbnn. Gilmore Brothers sued W. M. Drennen on (the common counts for $500 alleged to have been due on June 30th, 1894. A special count was also added claiming the same sum of money for money had and received to plaintiffs’ use by Drennen & Company, a partnership of which defendant was alleged to have been a member.

Tried before Hon. John P. Hubbard. Action by Bluthenthal & Bickert on an account and for money had and received, for the price or value of liquors sold to the Town of Headland. From a judgment for defendant plaintiffs appeal. (1.) Appellants were entitled to recover on the count for money had and received.' — -Allen v. Intenclani and Gotmcilmen of LaFayette, 89 Ala. 641; Flmn v. Barber, 64 Ala. 193;.

Tried before Hon. E. B. Almon. This was an action on the common counts by The Owensboro Wagon Company against B. L. Bliss and George Young, they being sued as partners in the Farmers’ Implement Company, which was alleged to be a partnership.

Tried before Hon. H. C. Speake. Action for money loaned and for money had and received. The evidence showed that W. J. Daniel was plaintiff’s agent from 1894 up to the time of his death, which occurred before the institution of the suit.

Tried before Hon. S. H. Spuott. Action by W. F. Clardy against W. T. Walker on the common counts and on a special count alleging a certain amount due on a written contract. The defendant filed an affidavit under section 2633 of the Code, suggesting one Story as claimant. This affidavit was, on motion of plaintiff, stricken from the file, and thereupon the court ordered the clerk to refund to the defendant the money deposited by him.

Tried before Hon. H. C. Speake. Action in Code form instituted by Spotswood against Bentley as administrator of the estate of Bartley Harris, deceased, for money had and received to the use of the plaintiff. A demurrer to the complaint was sustained, and plaintiff appeals. cited 'Daily’s Admr. v. Daily, 66 Ala. 266.

Tried before Hon. N. D. Denson. Action on the common counts by B. Tobias against Josiah Morris & Company. There was also a special count under which plaintiff; sued defendants for a general deposit of money made in her name with defendant’s bank. This is the second appeal, the former report being found in 126 Ala. 535. In view of the ground upon ivhich the decision is rested it is not deemed material to set out the -pleadings in extenso.

Tried before Hon. James W. Lapsley. This Avas an action brought by the Johnson Laboratories agajnst the appellant, J. L. Wilde; and sought to recover an amount due by an account for goods and merchandise sold by the plaintiff to the defendant. The defendant pleaded the general issue and two special pleas.

Tried before Hon. H. C. Speaks. This was an action brought by the appellee against the appellant. The complaint contained three counts, which were as follows: “1. The plaintiff claims of the defendants two hundred and twenty-five dollars for work and labor done for defendants at his instance and request between January 1st, 1897, and December 81st, 1897, which sum of money with interest is due and unpaid.” “2.

Tried before Hon. H. C. Speaks. This was an action brought by the appellant, S. D. Reese, against the appellee, S. L. Fuller. The complaint as originally filed contained seven counts. The first five counts were in substance and effect the common counts for mone> had and received. The sixth count was as follows: “6th.

Tried before Hon. J. A. Bilrbo. This action was brought by the appellee against the appellants. The defendant pleaded four pleas. The first was the general issue, and the third payment. The second and fourth pleas sought to set off a demand alleged to be due by the plaintiff to the defendant.

Tried before Hon. E. B. Almon. Action by Susan B. Allen against West Point Mining & Manufacturing Company on a promissory note for $5,000. Tbe opinion shows the facts. From a-judgment for defendant plaintiff appeals. cited Ala. Gold Life Ins'. Go. v. Central, etc., Asso., 54 Ala. 75; Taylor v. A. M. Asso., 68 Ala. 235; Talladega Ins. Go. v. Peacock, 67 Ala. 261; Savannah, etc., Go. v. Lancaster, 62 Ala. 564; Kelly v. Trustees, etc., -58 Ala. 496; 7 Am. & Eng. Ency.

<p> Action on Promissory Note. </p> <p>1. Consideration of note; public policy; agreement to conceal crime. A promissory note, the consideration of which consists in whole or in part of an agreement or promise to conceal or keep secret a crime which has been committed, is opposed to public policy and void. (Overruling Bibb v. Hitchcoeh, 49 Ala. 468.)</p> <p>2. Consideration; how proved. — It is competent to show the consideration of a note sued on by parol evidence.</p> <p>3. False representations in procuring signature to note. — Where there was evidence tending to show that plaintiff agreed with defendant, that defendant should give plaintiff his notes at ■one and two years for a certain amount, and plaintiff drew up the notes and stated to defendant.that they contained the contract agreed upon, and defendant relied upon this statement and signed the notes, which were in fact payable one day after date, defendant was entitled to a cnarge that, It the jury believed these facts from the evidence, they should find for defendant.</p> <p>4. Failure of consideration; breach of promise to credit notes for services; embezzlement of funds. — If defendant was induced to sign certain notes as surety, upon an agreement or promise by plaintiff to give defendant’s son (who had embezzled from plaintiff the amount represented by the notes) employment for a given period, and with the son’s consent given at the time, to credit upon the notes at the expiration of each month a certain part of the son’s wages for such month, and the son entered into plaintiff’s employment under said contract, it was plaintiff’s duty to enter the credits in accordance with the contract, notwithstanding the son’s subsequent embezzlement of plaintiff’s funds.</p> <p>5. Consideration of note; illegality; frflud; principal and surety. Where there was evidence tending to show illegality of consideration of a note, as well as fraud in its execution, in an action against the surety a charge is misleading and properly refused which instructs the jury that “the consideration of a surety for signing a note is the consideration of the principal.”</p> <p>6. Evidence; province of court; stating what particular witness testified, under § 3326 of the Code. — Under § 3326 of the Code, the court may properly state to the jury what the evidence of a particular witness was, when the same is in dispute.</p>

Tried before Hon. John P. Hubbard. Action by W. M. Tucker against A. R. Jones & Co., a partnership, and tbe individual members of the firm, for the breach of a contract of employment by which Tucker was employed as a clerk for defendants for one year, at a salary of $40 per month, beginning September 1st, 1898. There were verdict and judgment for plaintiff for $417.50.

Tried before Hon. John P. Hubbard. Action by D. N. Lawrence against Joseph Bell and Mrs. L. W. Bell for damages for breach of a contract, by Avhich Bell and wife leased to Lawrence a certain hotel in the toivn of Troy, for the term of one year be ginning January 1st, 1900, with the privilege of three, at an agreed rental of $40 per month in advance. This lease amis made in November, 1899.

Tried before Hon. A. A. Coleman. Tliis was an action by the Alabama Brewing Company against J. F. Sims, for breach of the following, contract : “State of Alabama, Jefferson County. This agreement entered into this the 8th day of May, 1900, by and between the Alabama Brewing Company as one part and J. F. Sims as the other.

Tried before Hon. A. H. Alston. This was an action by the Burford Lumber Company against O. V. Chaney and the sureties on his official bond as constable, for conversion by him of certain lumber. The evidence showed that plaintiff bougiit the property from the defendant in the execution, one Wil-bourn, after the levy of execution thereon, but without notice of the execution, and after Wilbourn had removed the property to another precinct.

<p>Appeal from Henry Circuit Court.</p> <p>Tried before Hon. John 1*. Hubbard.</p> <p>The opinion shows the material facts.</p> <p>cited Breitling v. Marx, 123 Ala. 222.</p> <p>cited Wads-icorth v. Hodge, 88 Ala. 500; Brown v. Commercial Fire Ins. Co., SO Ala. 189; Zirhle et al. v. Jones, 29 So. Rep. 681; Clearwater v. Meredith, 1 Wallace 25.</p>

Tried before Hon. J. C. Bichardson. On May 23, 1896, Sigmund Boman sued out a garnishment against A. M. Baldwin upon a judgment previously obtained against the Montgomery Iron Works. On May 18, 1897, the garnishee answered in writing not indebted, and the cause was continued. The original answer having been lost, a substituted answer was filed June 4, 1901. The cause was continued at the November term, 1896.

Tried before Hon. J. J. Mayfield. Action of debt by the mayor and aldermen of Tuscaloosa, a, municipal corporation, for the recovery of certain' sums claimed as privilege tax imposed by ordinance of the city From a judgment for plaintiff the defendant appeals. cited Acts 1892-93, p. 693; Code, § 3914; Constitution 1875, Art. IV, § 50; Douglass v. Anniston, 104 Ala. 291; Holt v. Mayor, etc., Ill Ala. 373; Southerland on Stat.

•Appeal from Pike Circuit Court. Tried before Hon. John P. Hubbard. This action was brought by the appellants, Tatum & Black, as sucessors to Harris, Black & Tatum, against the appellee, T. M. Hollis, to recover an amount alleged to he due as rent for certain lands for the 'year 1899.

Tried before Hon. J. A. Bilbro. This was a statutory action in the nature of ejectment by S. C. Capehart against J. J. McGahey. After the execution of the mortgage referred to in the opinion Capehart executed a deed- in fee simple to the Columbus City Mining, Manufacturing & Development Company, and thereafter acquired that company’s title' by becoming the purchaser of the land at a sale under a decree in chancery in a cause to which said company was a party.

. Tried before lion. John P. Hubbard. Statutory action of ejectment by Mrs. Mary J. Hammond and others against J. D. Blue.

Tried before Hon. H. C. Speaks. ,, Statutory action , in,, the nature , of,,,,, ejectment.

<p>Appeal from Marshall Circuit Court.</p> <p>Tried before Hon. J. A. Bilbro.</p> <p>cited Bonner v. Greenleese, 6 Ala. 411; Smith v. Gayle, 58 Ala. 600; Marshall v. Beede, 54 Ala. 300; 10 Am. & Eng. Ency. Law (2d ed.), 525, 526, 529; 18 Am. & Eng. Ency. Law (1st ed.), 940; 7 Ency. PI. & Pr., 302; Bell v. Fannen, 42 Fed. Hep. 755; Hall v. Hilliard, 6 Ala. 43; Harmond v. Kennedy, 4 Ala. 592; Hooper v. Payne, 94 Ala. 223; Cooper v. Watson, 73 Ala. 252.</p> <p>cited Banks v. Spears, 117 Ala. 264; Smith v. Gayle, 58 Ala. 600; Morris v. Buhe, 54 Ala 300; Bonner v. Greenlee, 6 Ala. 411; 7 Ency. PI. & Pr., 301, 302, 304; 16 Ency. PL & Pr., 756-7; Sedg. & Wait, Trial of Title to Land, § 231 et seq.</p>

Tried before Hon. J. P. Hubbard. Statutory action of ejectment.

Tried before Hob. John Moore. Statutory action of ejectment by S. E. Banks as administrator of tlie estate of Marcellus Banks, deceased, against W. R. S. ITayes. Tlie opinion shows tlie facts. cited Code, § 1797; Bowing v. Blair, 75 Ala. 219; Draper v. Walker, 98 Ala. 313; Walsh v. Phillips, 54 Ala. 309; St. John v. Kidd, 26 Oal.; 11 Am. & Eng. Ency. of Law (2d ed.), p. 585, note 2; Conrad v. Atlantic Ins.

Tried before Hon. J. A. Bilbro. The opinion states the facts. (1.) The mortgage from Lancaster and wife was void for want of proper certificate of separate acknowledgment. — Alford v. Lehman, 76 Ala. 326; Strip-Un v. Cooper, 80 Ala. 256; Strauss v. Harrison, 79 Ala. 324; Crider v. Mortgage Co., 99 Ala. 281.

Tried before Hon. A. A. Evans. Action in tlie nature of ejectment brought by John P. Gibson against Margaret E. Clark and another. Plaintiff relied for a recovery upon a. mortgage executed by J. J. Clark and wife, Margaret E. Clark, to him, a sale under the mortgage and a purchase by him under said sale. The defendant relied upon a deed from D. B. Blackwell and wife, to her, and upon the fact that the mortgage to plaintiff was given to secure the husband’s debt.

Tried, before Hon. John P. Hubbard. Action by W. J. Wilson against W. W. Barnett for the statutory penalty under Code, § 10-66, for failure to mark a mortgage satisfied on the record. Prom a judgment for plaintiff defendant appeals. cited Home Protection of North Alabama v. Whid-den, 15 So. Eep. 567; 103 Ala. 203; S. B. & L. Asso. v. McCants, 120 Ala. 116; Kochs v. Briggs, 73 Am. Dec. 51; Moore v. Galhins, 29 Am.

Tried before Hon. John.P. Hubbard. This was an action instituted on September 8, 1899, by the appellee, John J. Ward, against the appellant, the Dothan Guano Co., in which the plaintiff sought to recover from the defendant two hundred dollars, the statutory penalty for the defendant’s failure to enter satisfaction upon the margin of the record of a mortgage, in the office of the judge of probate.

Tried before the Hon. B. R. Bbiciíen, Special Judge. Action for deceit in the sale of a mule.

<p>Appeal from Jackson Circuit Court.</p> <p>Tried before Hon. A. H. Alston.</p> <p>Action for damages for deceit in sale of chattel.</p> <p>cited 1 Greenleaf on Ev. § 370, 418; 29 Am. & Eng. Ency. Law, pp. 616, 617; Porter v. Cotney, 3 Ala. 315; 8 L. K. A. 837.</p> <p>cited Blocker v. Burness, 2 Ala. ced; Porter v. Cotney, 3 Ala. 314; State v. Washington , 42 L. B. A. 553.</p>

Appeaij from Tuscaloosa Circuit Court. Tried before Hon. S. H. Spiiott. This action Avas brought by the appellant, Tuscaloosa county, against J. Luther Foster, to recover damages for the alleged deceit practiced by the defendant upon the plaintiff in the sale by the defendant to plaintiff of a certain ferry, ferry rights, franchises and privileges, described and known as Foster’s ferry in Tuscaloosa county. The complaint contained four counts.

Tried, before Hon. Wm. S. Anderson. 'Action of detinue by Van. L. Outbbert and Frank J. Parker against John S. Bolton. The opinion sufficiently states the facts upon which the opinion and decision are based. in support of the proposition that Vaughan was a necessary party plaintiff under the evidence, and that plaintiffs could not recover, cited 6 Ency.

Tried before Hon. J. W. Foster. Action by Carrie F. Horn against appellant to recover damages for personal injuries.

Tried before Hon. Chas. A. Senn. . This action was brought by David Roebuck against tbe Southern Railway Company. Tbe complaint contained three counts, as amended, and upon which the trial was had.. The first and second counts were as follows: “First count.

Tried before Hon. J. W. Mabry. This was an action brought by' Mrs. A. M. Owen against the Selma Street & Suburban Railway Company, a corporation, and sought to recover $10,000 damages for personal injuries. The complaint contained three counts, the substance of which is sufficiently shown in the opinion.

<p> Action to Recover Damages for Personal Injury. </p> <p>1. Negligence; injuries caused Tyy sudden lurch of street car; general charge. — Where the injuries to plaintiff’s intestate are ascribed in one count of a complaint to defendant’s negligence in causing or allowing a “ear to give a sudden lurch or other sudden motion,” while plaintiff’s intestate was engaged in or about boarding said car, and there is no evidence tending to show or justifying an inference that there was such sudden lurch or other sudden motion of the car, the general affirmative charge for defendant should be given, as to said count.</p> <p>2. Variance, what constitutes. — Where a complaint alleges that . plaintiff’s intestate, when he was run upon or against, was between two cars, and the evidence shows that he was then under the rear of the two cars, there is a variance.</p> <p>3. Contributory negligence in getting on moving street car, while encumbered with bundles. — A person is not guilty of contributory negligence as matter of law in getting on a street car, moving at a rate of speed of from 'two to five miles an hour, and while he is encumbered with bundles, and without grasping the hand-hold of the car, though, after being on the ■step, h.e caught the hand-hold with the hand which was furthest from it, the other hand.being incapacitated by the packages he was carrying.</p> <p>4. Same.- — A charge is bad which declares as matter of law that it is not negligence for a passenger to attempt to board a street car in slow motion.</p>

Tried before Hon. J. A. Bilbro. The action ivas in Code form, under form 15, section 8352 of the Code, and was begun in a justice’s court and appealed to the circuit court. The trial was had on issue joined on the plea of the general issue. The goods were consigned to the plaintiff, Jasper Smith, at “Hun-tersville, Ala., Tenn. & Coosa Division of the N. C. & St. Louis K’y., route via Chattanooga, care Tenn.

Tried before Hon. A. A. Coleman. Action by Inez B. Jones against the Southern Railway Company.

Tried before Hon. W. W. Wilkerson.- Action by Robert T. Hulsey, against, his employer, Postal Telegraph 'Cable Company, for personal injuries, under subdivision 2 of the Employers’ Liability Act ( Code, § 1749). The opinion states the material facts, as regards the pleading and evidence.

Tried before Hon. A. A. Coleman. The plaintiff, Samuel Tolbert, sought to recover against his. employer, appellant, for personal injuries alleged to have been caused by the negligence of one Frierson, in defendant’s employment and entrusted by it with superintendence, while in the exercise of such superintendence.

Tried before Hon. H. C. Speaice. The action was brought by John T. Banks as administrator of the estate of Joe Lawrence, deceased, against the Louisville & Nashville Railroad Company to recover damages for the alleged negligent killing of plaintiff’s intestate, an employe, wlm was run against and killed by an engine; operated on defendant’s road and in charge of engineer, Ben McDermott.

Tried before Hon. A. P. Agee, Special Judge. Action by Ellen Walcli as administratrix of the estate of Patrick Walcli, deceased, for damages for his death wliile in the employ of the defendant, appellant. The injury occurred in January, 1899, and the original complaint, ascribing the injury to defects in the car, was filed in the. following May.

City Court. Tried before Hon. Chas. A. Senn. Action by George W. Robinette for damages for personal injuries. The complaint charged simple negligence, and defendant pleaded the general issue and contributory negligence. In addition to the facts shown by the opinion the record shows the following facts: The injury occurred in the day time in the town of Avondale, at a point where defendant’s track crossed the main street of the town.

Tried before Hon. Chas. A. Senn. Action for personal injuries to plaintiff: at Warner, a station on defendant’s road. The first count, to which demurrers were sustained, charged simple negligence only. The trial was had on the second count, which ascribed plaintiff’s injuries to the wanton, willful and reckless conduct of the defendant’s agents or servants in the running, control and management of its train.

Appeal' from Jefferson Circuit Court. Tried before Hon. A.' A. Coleman. This action was brought by the appellee against the appellant to recover damages for personal injuries sustained by reason of a collision between an electric car owned and operated by the defendant and a hose cart of the fire department, upon which car plaintiff was riding at the time of the accident.

Tried, before Hon. N. D. Denson. This was an action on the case brought by the Mar-bury Lumber Company against the Louisville & Nashville Railroad 'Company for the alleged negligent destruction of seventy bales of cotton, the property of ap-pellee. There was a verdict and judgment for plaintiff for $2,078.66. For report of case on former appeal see 125 Ala. 237. The opinion, sufficiently shows the facts, except as to defendant’s refused charges.

Tried before Hon. S. H. Sprott. Tbs action was brought by S. K. Henson against the appellant to recover damages for the alleged negligence of the defendant in killing the plaintiff’s cow, the value of said cow being fixed at $75. The defendant pleaded the general issue and the following additional pleas: “2. Defendant for further answer says it is not guilty of the matter and wrong alleged therein and denies each and every allegation contained in said complaint.” “'3.

Tried before lion. A. H. Alston. Action for personal injuries. Tlie first count ascribed the injuries to defendant’s negligence in leaving uncovered a box, in which a water meter had been kept, and the second count to its wantonness or intentional wrong in so doing. The trial was had on the plea of the general issue.

Tried before Hon. A. A. Coleman. This action was brought by the appellee against' the appellant.

Tried before Hon. H. C. Speake. Action by Frank Arndt against the city of Cullman, a municipal corporation, for damages to- plaintiff’s lot by reason of water flowing upon it from a city sewer which was alleged to have been negligently constructed Or allowed to choke up.

Tried before Hon. A. H. Alston. Action by Martin 'Walker against Gulf Red Cedar Company for damages to- plaintiffs mill dam and land caused by an overflow of Paint Rock river and defendant's negligence in allowing timber to accumulate against boom posts near plaintiff’s premises, breaking his mill dam, and diverting the water upon his land, Avashing it and demolishing his fences, and scattering drift Avood in his fields. The trial Avas had on the plea of not guilty.

<p> Action of Trover. </p> <p>1. Trover; burden of proof. — Under the plea' of not guilty in an action of trover the burden of proof is on the plaintiff to show either a general or special property in the thing converted, at the time of the alleged conversion. .</p> <p>2. Same; when evidence insufficient to show title in plaintiff; general charge. — In an action of trover, where the only evidence of plaintiff’s title or ownership is a mortgage to him of the property alleged to have been converted, containing a recital that the mortgagor guarantees the title to the property to be in himself, and there is no evidence connecting defendant with the mortgagor, or showing that the mortgagor ever had possession of or title to the property, — the evidence fails to make out such a prima facie case as would authorize a verdict for plaintiff.</p> <p>3. Verdict, writing of by attorney in the case; when not reviewable. — The general charge having been given for plaintiff, the action of the plaintiff’s attorney in writing out the verdict, or of the court in directing one of the jury to. sign it as foreman, is not reviewable unless objected and excepted to at the time.</p> <p>4. Verdict in excess of amount sued for; when objection must be made. — An objection that the verdict is in ex'cess of the amount sued for must be made in the court below and can not be made for the first time in thie appellate court by assigning as .error the judgment which follows the verdict.</p>

Afpeai, from Colbert. Circuit Court. Tried before. Hon. J. H. Nathan, Special Judge. Action of trover by Mattie Gray .Franklin against Claude King for the conversion of a mule. The mule, was purchased by Nathan Napier, father of plaintiff, from one Wouible in 1896, and lie executed to Womble a mortgage to secure the: purchase money.

Tried before Hon. H. O. Speaks. Action of trover by Lindsay against Jordan for the conversion of one lmndred and ninety-five bushels of corn. From a judgment for plaintiff defendant appeals. cited 26 Am. & Eng. Ency.

Tried before Hon. J. A. Bilbko. in opposing the motion to dismiss tlie appeal, cited Elliott’s Appellate Proc.. §§ 83, 86, 159; P>aylie’s New Trial, p. 39. in support of the motion to dismiss the appeal, cited Dumar v. Hunter, 28 Ala. 688; s. c. 30 Ala. 188; Deslonde v. Garter, 27 Ala. 541; Burdine v. Mistime, 33 Ala. 634; Espy v. Ballmm, 45 Ala. 256; 2 Ency.

Apeal from Henry Oiruit Court. Tried before Hon. Jno. P. Hubbard. Action by Alice T. Wilks and others against the Bank of Dothan for conversion of certain chattels. From a judgment for plaintiff defendant appeals.

Tried before Hon. John P. Hubbard. Action of trover by T. B. Hickman against J. M. Pilcher. The defendant pleaded the general issue and justification under process, in the form of an execution issued upon a judgment against one T. H. Hickman, plaintiff’s father, which was levied by defendant as sheriff upon a mule in the possession of said T. H. Hickman, and the mule was duly sold thereunder. The opinion states the facts.

<p>Appeal from Clarke Circuit Court.</p> <p>Tried before Hon. John C. Anderson.</p> <p>Tire opinion states the facts.</p> <p>cited Pcnnoyer v. Neff, 95 U. S. 714; Freeman v. Anderson, 119' U. S. 188; L. & N. R. R. Go. v. Rash, 118 Ala. 483) Steen v. Swadley, 126 Ala. 616; Smith v. Gibson, 83 Ala. 284; McPMllips v. Subbard, 97 Ala.. 513; Hinman v. Ru,sh-more, 27 Ill. 508; Fuller v. Langford, 31 Ill. 248; 4 La. Ann. Rep-. 584; 1 Shinn on Attachments, § 193; Pullman v. Hidse, 32 Kas. 598; s. c. 33 Kas. 670; 3 Ency. PL & Pr., 53; Garter v. Arbuthnot, 62 Mo-. 582; Brown on Att., § 39; Puterbangh’s PL & Pr., 622; 43 Ill. 185; Pullman Palace Gar Go. v. Harrison, 122 Ala. 158; WilmercUng v. Corbin Banking Go., 126 Ala. 268; United States v. Crawford, 47 Fed. Rep. 561; 19 Ency. PL & Pr., 603, 604; 35 Fla. 619; 2 Ark. 501.</p> <p>cited Code, §§ 526, 544, 536, 4205; MoPMUips v. Hubbard, 97 Ala. 513.</p>

Tried before Hon. John Moore. • Tlie action was instituted by W. J. Eountree against P. '(x. Wood. Eountree was tax commissioner for Dallas county, and Wood was probate judge.

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

Tried before Hon. Jas. W. Lapsley. Action on a promissory note by Anniston Loan & Trust Company against R. H. Stickney, Jr. On appeal (108 Ala. 146), a judgment of the lower court in favor of the defendant was reversed and a judgment rendered for the plaintiff. Execution was issued on this judgment by the clerk of the lower court, and this appeal is taken from the judgment of the lower court quashing this execution. cited 11 Am. & Eng. Ency. Law (2d-ed.), 615; 8 Ency.

Tried before Hon. A. A. Coleman. Statutory action of ejectment. A motion was made in this court to strike the bill of exceptions. The case was tried in the lower court, on May 25, 1900.

Action of Assumpsit for Purchase Price of Goods Sold. Appeai, from tlie Circuit Court of Pike. Trial before the Hon. John P. Hubbabd. The appellant, the Oklahoma Vinegar Company, brought- the-- present suit against the appellees, Hamilton & P.unldoy, upon a verified account, to recover the purchase price- of phosphates sold by the plaintiff to- the defendant.

Tried before the Hon. A. H. Alston. This was an action brought by the appellee against the appellant. The facts of the case are ■ sufficiently stated in the opinion.

Tried before the I-Ion. Trios. II. Smith. The hill in this case1; was filed by the appellee, Henry M. Sage, againsi the appellant, the Scotch Lumber Company. The purpose of the bill is to partition the lands described in the bill. The complainant claims to own a 6-7 undivided interest, and allages that the defendant is the owner of a 1-7 undivided interest.

Tried before the Hon. John P. Hubbard. This was a statutory action of ejectment brought by the appellee, J. P. Folkes, for the use of W. R. McKenzie, against the Zion Fountain Lodge No. 54, P. &Á.M There were verdict and judgment for the plaintiff, and the defendant appeals.

Tried before the Hon. A. A. Coleman. This action was brought by the appellee against the appellant to recover damages for the alleged negligent killing of a cow. Issue was joined upon the plea of the general issue. The plaintiff proved the ownership of the cow killed. cited 16 Am. & Eng. Encv. Law, 448,' § 13; A. G. 8.

Tried before the Hon. H. C. Speak®. The appellant, J. 11. Bland, recovered a judgment in the circuit court of Madison county against the appel-lee, C. L. Putman, on the morning of May 26, 1899. Immediately upon the recovery of this judgment the plaintiff secured from the clerk of the circuit court a certificate of said judgment, which he filed at once in the office of the probate judge.

Tried before the Hon. 0.- Kyle. This was a statutory action of detinue, brought by the. appellee, P. S. Boyd, against the appellant, S. B. Lightman, to- recover the possession of a horse. The claims of the plaintiff and the defendant, respectively, and the facts of the ca.se are sufficiently stated in the opinion.

Heard before the Hon. Thos. H. Smith. The bill in this case was filed by the partnership of 11. W. Brice & Co. against Thos. H. Bledsoe, Sarah A. Bledsoe and Henry T. Bledsoe. It was averred in the bill that in December, 1884, one 1Í.

Tried before the Hon. ’A. H. Alston. This was a statutory action in the nature of ejectment, brought by the appellee, 0. 1). Reaves, against .the appellants, to recover certain lands specifically described in the complaint. The facts of the case axe sufficiently stated in the opinion.

Tried before the Hon. Gesner Williams, Special Judge. This was a statutory action of detinue, brought by the appellant, the .Martin Machine Works, against the appellee, F. J. Miller, to recover the possession of an engine, boiler and fixtures.

Tried before the Hon. William S. Anueksqn. This was an action by the appellant against the appellee. The counts of the complaint, and the one upon which the. trial ivas had, are sufficiently stated in the opinion.

Tried before the Hon. Joseph I-I. Nathan, Special Judge. Tlie appellees, Morrison & Woodward, recovered a judgment against the appellant, William Barnemann, upon which execution was issued, and this execution was levied upon a certain lot in the town of Tuscumbia. There was a claim of exemptions of said lot, and the proceedings in the said case were had upon the contest of a claim of exemptions interposed by the defendant in execution.

Heard before tlie Hon. John 0. Carmichael. Tlie bill in this case was filed by tlie appellants as creditors of tlie estate of George T. • Winton, deceased, against tlie appellant, Tlie Mutual Benefit' Life Insurance. Company, of Newark, N. J., to enforce tlie payment. by said Life Insurance Company of a policy of insurance issued by it on tlie life of said Winton. Tlie appeal is from an interlocutory decree of tlie chancellor bolding insufficient a plea by tlie defendant.

Appbad from tire Circuit. Court of Wilcox. Tried before the Hon. John Moore. The appellant, E. W. Albritton, brought an action in the justice, of the peace court against Henry Ellis and recovered a judgment against said Ellis. Upon this judgment an execution was issued and levied upon two mules and a horse, the property of said Ellis. Thereupon the appellee, J. C. Williams, interposed a claim to the property so levied upon by making affidavit and giving claim bond.

Tried before the lion. Chas. A. Senn. On October 20, 1900, the appellee, Charles S. Sibley, filed a general creditors’ bill in the city court of Birmingham against the Helena Coal Company, Sibley P. King, F. J. McNamara, L. T. Brasswell, W. T. Johnson and W. F. McNamara to administer a trust under a general assignment- for the benefit of creditors.

Tried before the Hon. John Moore. This was an action brought by the appellee against the appellant, the Southern Railway Company, to recover1 damages for the alleged negligent killing of a horse, the property of the plaintiff. The plaintiff, as a witness in his own behalf, testified that he had purchased the horse killed from Mr. Grubbs, and tli at the value of the horse was a hundred dollars.

Tried before the Hon, John P. Hubbard. This action was brought by the appellants, B. L. Terry and T. J. Terry against the appellees, N. N. Allen and YY. P. Allen, partners composing the firm of Allen Brothers; and sought to recover damages for the breach of a contract, alleged to have been entered into by and between, the plaintiffs and the defendants. The contract sued upon, as averred in the complaint, is sufficiently stated in the opinion.

Appead from the Chancery Court of Montgomery. Heard before the Hon. W. L. Parks. The bill in this ease was filed by the appellee, A. B. Brassell, against the appellants, for tire purpose of foreclosing a. mortgage, which was executed to the complainant by Thomas B. Scott and wife to secure the payment of a debt therein described, amounting to' $240 with interest.

Chancery Court, of DeKaib. Heard before the Hon. William H. Sluphox. The bill in this case was filed by the appellee, James Cox, against the appellants, The purpose of the bill was to set aside several conveyances of land as being fraudulent and void against the complainant, who was a judgment creditor of G. W. Killian, and to subject said lands and the stock of goods to the satisfaction of complainant’s- debt.

Tried before the Hon. John P. Hubbard. The appellee, John Grice, recovered a judgment against W. T. Eldridge and C. B. Searcy. On this ■judgment execution was issued and levied upon a bale of cotton. Thereupon the claimant, Mary W. Eld-ridge, the wife of the defendant in execution, interposed a claim to said cotton so levied upon; and upon the interposition of this claim, trial was had upon issue joined to determine the right to the property so levied upon.

Heard before the Hon. Thos. H. Smith. The hill in this case was filed by the appellant Margaret Jellerson, against the appellees on January 21, 1901. ‘ ’ It was averred in the bill that the complainant was the cotenant with the appellees in the ownership of certain lands im Mobile connty; and the prayer of the bill was for the sale of said lands for division among tire joint owners. The facts of the case are sufficiently stated in the opinion.