Volume 134 — Alabama Reports

Tried before the Hon. O. J. Semmes. The appellant, Charles B. Mann, was indicted and tried for the murder of David Dickson, was convicted of murder in the second degree, and sentenced to- fifteen years in the penitentiary.

<p>Appeal from the Circuit Court of Greeue.</p> <p>Tried before the Hon. S. H. Sphott.</p> <p>The appellant in this case, William Ragsdale, was jointly indicted with Thad Gibson, for the murder of Bert Hollingsworth. On motion of the defendant William Ragsdale, a severance was had. Upon the trial of William Ragsdale, he was convicted of murder in the first degree and sentenced to the penitentiary for life.</p> <p>In the organization of the jury the defendant reserved an exception to the ruling of the court holding that the j,uror Pippen was qualified. The facts relating to this ruling are sufficiently shown in the opinion.</p> <p>On the trial of the case, it was shown that Bert Hollingsworth was shot and killed by William Ragsdale in Greene county, Alabama,, on Saturday afternoon, October 5, 1901; that the killing occurred in a pasture owned by one Chas. B. Pippen, where there was a baseball ground; that on the Saturday afternoon of the killing several persons, including Ber*t HollingSAvortli and his brother, Claude HollingSAvortli, had assembled at said pasture for the purpose of playing ball in accordance Avith their custom; that Avhile the persons so> assembled Avere engaged in playing ball, the defendant Bagsdale and Thad Gibson rode inside of the pasture, through the gate, hitched their horses, and then' Avent up to Avhere the ball game Avas going on; that'Kagsdale immediately Avalked OArer to where Bert HollingSAvortli was standing and, in an angry manner, said to him: “You said that you Avanted to see me; you can see me noAV all that youAvant to,” or Avoids to that effect; that immediately Bert Hollingsworth left the defendant Kagsdale and Avent in the direction of the baseball pitcher’s box (some of the AAitnesses testifying that Bert said: “I do not AArant to see you,” or Avords to- that effect) ; that as Hollingsworth Avaiked off he AAras in his stocking feet and in his shirt sleeves; that the defendant Kagsdale immediately folhwed Bert HollingSAVorth, cursing him, and about the time HollingSAvortli reached the pitcher’s box, they clinched, and Kagsdale pulled his pistol and fired upon Bert HollingSAvortli, aa’Ilo fell and died immediately.</p> <p>The evidence for the defendant tended to shoiv that after reaching the pitcher’s box Bert Hollingsworth grabbed the defendant by the throat, and struck him in the face Avitli something hard, Avhich the defendant took to be a, knife, and thereupon the defendant fired.</p> <p>The rulings upon the evidence are sufficiently shown in the opinion. Under the opinion it is unnecesary to set out at length the general charge given by the court.</p> <p>The court, at the request of the State, gave to the jury the folloAving Avritten charges: (1.) “The court charges the jury that if they believe beyond a reasonable doubt from the evidence, that the defendant Bags-dale, and the deceased HollingSAvortli had had some trouble a feAV days before the homicide, and that «Pen he, Kagsdale, on the day of the homicide-, came to Avliere the deceased (HollingSAvortli) was standing at the ‘neAvhome base-,’ he stepped up in front of the deceased, and, in an angry manner, said to him, ‘you said you wanted to see me; noiv you can see me,’ and the jury should further find, from the evidence, beyond a reasonable doubt that the deceased left the place and 'went to the pitcher’s stand, some sixty or sixty-five feet aivay, and the defendant followed the deceased to that place, and they there became involved in a difficulty, and the defendant killed the dec-cased, then he can not set up self-defense in this 'case.” (2.) “The court charges the jury that-to make the plea of self-defense available, the defendant must be without fault. If he was liimself the aggressor, he cannot invoke the doctrine of self-defense, even if the deceased struck him, and whether the necessity to take the life of the deceased was real or only apparent, if brought about by design, connivance or fault of the defendant, he can not be excused on the plea of self-defensa” (3.) “ ‘Deliberate’ and ‘premeditated’ as those*, words are used in the statute, mean only this: that the slayer must intend before the blow is delivered, though it be for only for an instant of time before, that he will strike at the time he does strike, and that death will, be the result of the blow, or, in other words, if the*; slayer had any time to think before the act, however short such time may have been, even a single moment, and did think, and he struck the blow as the result of an intention to kill, produced by tliis even momentary operation of the mind, and death ensued, that would be a deliberate and premeditated killing within the meaning of the statute defining murder in the first degree.” The defendant separately excepted to the giving of each of these charges, and also separately excepted to the court’s refusal to give each of the following charges requested by him: (9.) “The court charges the jury that if they believe the evidence in this case beyond a reasonable doubt, then they can not convict the defendant of murder in the second degree.” (11.) “The court charges the jury that if they believe the evidence in this case beyond a reasonable doubt, then they can not find the defendant guilty of murder in the first degree.” (25.) “The court charges the jury that you find the defendant not guilty, unless the evidence against him should be such as to exclude toi a moral certainty, every hypothesis but that of Ms guilt of the offense imputed to him.” (30.) “The court charges the jury that if you believe the evidence in this case beyond a, reasonable doubt, then yon cannot convict the defendant of any higher degree of homicide than manslaughter in the second degree.” (31.) “The court charges the jury that if you believe the evidence in this case beyond a reasonable doubt, then you cannot convict the defendant; of any higher degree of homicide than mans laugher in the first degree.”</p> <p>Under the statute, if a juror has such a fixed opinion as to the guilt or innocence of the defendant as would, bias his verdict, he is disqualified, and of the existence vel non of such fixed opinion, the sworn answer of the juror is the only evidence. — Hamil v. State, 60 Ala. 581; Code, §§ 5016, 5017; Long o. State, 86 Ala. 1-3; Bayles v. State, 63 Ala. 36; Davis v. Hunter, 7 Ala. 138; Quesenbcn-y v. State, 3 S. & P. 314; Jackson v. State, 77 Ala. 18.</p> <p>The court,, below erred in refusing to admit the testimony of the witness, Lee Hall, and of the witness, Luther Jones, as to threats, and the testimony of the witness, L. L. Lyon, as to the complaint and warrant in proceedings to bind Bert Hollingsworth, tlie deceased, over to keep tlie peace*, and the testimony of the defendant as to threats. — Xaugher r. State, 110 Ala. 463; Jones r. State, 116 Ala. 468; Roberts r. State 68 Ala. 156; Hiland r. State, 52 Ala. 323 •,(}afford- v. State, 122 Ala. 54; Dupree c. State, 33 Ala. 380; Powell ■r. State, 52 Ala. 1;; Harkness r. State, 129 Ala. 71; Rutledge r. State, 88 Ala. 89.</p> <p>The general charge, of the. court which, at the. request of defendant, vais in writing, ignores the question of venue. This constitutes reversible error.— Bain r. State, 61 Ala. 75; Solomon v. State, 27 Ala. 27; Brown r. State, 27 Ala. 47; Huffman v. State, 28 Ala. 48; Green v. State, 41 Ala, 419; Gooden v. State, 55 Ala. 175; Gollin v. State, 69 Ala. 247;</p> <p>The court did not err in holding the witness, Pip-pen, competent as a juror. — Txivg v. State, 86 Ala. 37; Hamill v. State, 90 Ala. 577; Arp r. State, 97 Ala.. 35; 1 May. Dig., §§ 465, 466, 468, 470, the sections cited being on pages 542 a.nd 543 of the Digest.</p> <p>The defendant excepted to' certain rulings of the court in refusing to allow the witness, Thad Gibson, to testify that he had a pistol, on toe occasion of the homicide, because of threats that had been made against him on account of his activity in apprehending tire slayer of one Bun tin. The evidence sought to be elicited was clearly illegal and immaterial. In the first place, a.s Gibson was n pt shown to have had the weapon concealed, he had the lawful right to carry the weapon. — Gafford v. State, 122 Ala. 55.</p> <p>The charge as to the burden of proof was correct and is sustained by the following cases decided bv this court. — Pnah v. State, 31 So. Rep. 727; TAnnehan’s fíase, 113 Ala. 70; Miller v. Slate, 107 Ala. 41; Gibson v. State, 89 Ala. 121; 1 Ma.v. Dig. p. 810.</p> <p>It was no> objection to the general charge of the court that it ignored proof of venue.</p> <p>The record shows that the homicide was committed in. Greene county, Alabama, and the evidence on this point was without conflict. The record also shows that no point was made in the court below on the subject of venue, and no, instructions were given or renuested upon that point. — Smith v. State, 118 Ala. 117. See Fv-bbard v. State, 72 Ala. 169 ;fíla,rhe v. Stale, 78 Ala-477.</p> <p>A court is authorized, in charging the jury, to assume in its charge a fact as proven when that fact is plainly ip evidence, and there is no conflict on the subject. — Woods r. Motea, 129 Ala. 228.</p>

Appeal' from the City Court of Montgomery. Tried before flip Hon. William H. Thomas. Tlie appellant in this case, Jim ’Barnes, was indicted and tried for the murder of Cora Gibson, was convicted of manslaughter in the second degree, and sentenced to hard labor for the county for one year and fined five hundred dollars.

Tried before the Hon. J. C. Bichardson. The appellant in this case, Lee Milton, was indicted and tried for the murder of Thomas Acreman by cutting him with a knife, was convicted of manslaughter in the first degree, and sentenced to seven years imprisonment in the penitentiary.

Tried before the Horn J. O. Richardson. The appellant, Butler Andrews, was indicted and tried for the murder of Boh Bogan, was convicted of murder in the first degree, and sentenced to- imprisonment in the penitentiary for life.

Tried before the Hon. William H. Thomas. The appellant, George Edson, was indicted and tried for the murder of John Edson, was convicted of murder in the first degree and sentenced to' be hanged. The trial was had at the Fall Term, 1901, of 'the City Court of Montgomery, to-wit, on December 5, 1901.

Tried before the Hon. D. A. Greene. The appellant, Ed Johnson, was indicted, tried and convicted for the robbery of Frank Gress, and was sentenced tio the penitentiary for a term of 35 years. «.When the case was called for trial and before the jury was impannelled, the defendant moved the court to quash the indictment upon the following grounds, as set forth in the bill of exceptions: “That this defendant has been heretofore indicted for this same offense, and that on…

City Court of Selma. Tried before the Hon. J. W. Mabry. The appellant in this case was indicted and tried for tbe murder of Robert Hunter, was convicted of murder in tlie first degree, and sentenced to be bung. Before tbe trial was entered upon, tlie defendant moved tbe court to quasb tbe venire upon tbe following grounds: “First.

John Pelham. The appellant in this case, Buck Ferguson, was indicted and tried for the murder of Will Andrews, was convicted of manslaughter in the first degree and sentenced to two years in the penitentiary. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

John P. Htjbbard. The appellant in this case,' Marshall Rambo, was jointly indicted with Sewell Cook for the robbery of John Huttman. On the demand of defendant a severance was granted and' Rambo was tried separately. He was convicted of an “assault with the intent to fob,” and was sentenced to the penitentiary- for four years.

Tried before the Hou. John Moore. The appellant in this case, John Green Sanders, was jointly indicted with his brother, Luke Sanders, for the murder of William Mullen. On motion of the defendants there Avas a severance and the appellant in the present case, upon separate trial, Avas convicted of murder in the first degree and sentenced to be hung.

Tried before the Hon. J. A. Bilbro. The appellant in this case ivas indicted, tried and convicted for an assault and battery upon tlie person who was named in the indictment as Lucinda Breeden. On the trial of the case, the State introduced in evidence the child alleged to have been assaulted, who ivas shoAvn to be ten years old. Her testimony on her voir clirc is set forth in the opinion.

Tried bfeore the Hon. J. A. Bilbko. The appellant Beauregard C. Hall, was indicted, tried and convicted for the seduction of Pearl Pritchett, and was sentenced to the penitentiary for ten years. It is insisted on this appeal that the grand jury which found the bill wa,s illegally organized. The facts relating to the organization of the grand jury are sufficiently stated in the opinion. The.defendant moved the court to quash the indictment upon the following grounds: “1.

Tried before the Hon. A. H. Alston. The appellant in this case, Jesse Surginer, was indicted, tried and convicted for an assault with intent to murder upon one Will Yarbrough. 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. William H. Thomas. The appellant in this case, Bill Thomas, was jointly indicted with one Bill Jenkins for robbery, was convicted and sentenced to the penitentiary for ten years.

Tried before tlie Hon. M. N. Manning. The appellant in this case was indicted, tried and convicted of arson in t-lie second degree in setting fire to and burning a storehouse: containing a stock of goods of the value of $3,000. On the trial of the case the burning of the storehouse and the ownership' thereof ivas proved' as laid in the indictment.

Appkal from tlie Circuit Court of Geneva. Tried before tlie Hon. John P. Hubbard. The appellant in this case, Sewell Cook, was jointly indicted with Marshall Rambo for the robbery of John Huttman. On the demand of defendant a severance was granted and Cook was tried separately.' He was convicted of an “assault with the intent to rob,” and was sentenced to the penitentiary for four years.

Clair. Tried before the Hon. John Pelham. The appellant in this case was tried and convicted under the following indictment: “The grand jury of said county charge that before the finding of this indictment that Jim Bradford, on his examination as a witness duly sworn- to testify on the trial of the said Jim Bradford in the county court of St. Clair county under- a prosecution upon a charge of failing or refusing to work on the public road after legal notice, which said court…

Tried before the Hon. William H. Thomas. The indictment under which the appellant Avas tried and convicted Avas in Avords and figures as folloAvs: “The grand jury of said county charge that before the finding of this indictment Will Loavc and Tom Crittenden feloniously took and carried away eighteen coavs, the personal property of J. B. Milligan. “The grand jury of said county further charge that before the finding of this indictment Will LoAve and Tom Crittenden feloniously…

Tried-before the Hon. William H. Thomas. The indictment, under which the appellant was tried and convicted was in words and figures as follows: “The grand jury of said county charge that before the finding of this indictment Will Lowe and Tom Crittenden feloniously took and carried away eighteen cows, the personal property of J. B. Milligan. “The grand jury of said county further charge that before the finding of this indictment, Will Lowe and Tom Crittenden feloniously took…

Tried before tbe Hon. T. J. Burton. Tbe 'prosecution in this case against tbe appellant, Charles Bennefield, was commenced by an affidavit made by Marvin Farlow, which charged that the defendant “did sell or give spiritous, vinous or malt liquors to Marvin Farlow, a minor,” etc. On the trial of the case, Marvin Farlow testified that he was 17 years old; that a. short while before he made the affidavit under which this prosecution Avas commenced, the defendant gave him,…

Tried before the Hon. William H. Ti-iomas. Tbe indictment under which the appellant in this case was tried and convicted was in the following words; “The grand jury of said county charge that before the finding of this indictment Richard Allen feloniously took and carried away from a warehouse three caddies of tobacco of the value of ten dollars, the personal property of the Western Railway of Alabama, a corporation under the laws of the State of Alabama, against the peace…

Tried before the Hon. Samuel E. Greene. ■ The prosecution of the appellant in this case was commenced by an affidavit made before the judge of the criminal court of Jefferson county, which charged: “That E. Eugene Bragg, within twelve months before the making of this affidavit in said county, as a profession or as a means of livelihood did practice medicine Avithout first having obtained a certificate of qualification from one of the authorized boards of medical examiners of…

Axt'kal from tlie Circuit Court of Marshall. Tried before the Hon. J. A. Bilbro. The facts, of the case are sufficiently stated in the opinion.

Tried before the Hon. A. D. Sayre. On May 8, 1902, thei appellant, John O’Neil, through his attorney, filed the petition in'the present suit, addressed to Hon. A. I).

Tried before tbe Hon. J. O. Biohardson. The appellant in this case applied to tbe Supreme Court for a writ of error. In compliance with the prayer of tbe petition, the writ of error was awarded.

Heard before the Hon. William H. Simpson. The facts of the case are sufficiently stated in the opinion. The defendant is not entitled to be set at liberty, even though he might be entitled to be discharged from the unlawful custody of the sheriff and confinement in jail of the county.

Appear from tlie City Court of Montgomery. Tried before tbe Hon. A. 1). Sayre. Tbe proceedings in this case were bad upon a petition filed by tbe appellee, H. H. Matthews, as clei*k of the city court of Montgomery and addressed to tbe Hon. A. I). Sayre, judge of said city court.

Heard before the Hon. O. J. Semmes. The appellee in this case, William Ble,Anns, filed his petition for habeas corpus, addressed to the judge of the .city court of Mobile, in which he asked to be discharged. The facts of the case are sufficiently stated in the .opinion. >. cited Thomas v. State, 100 Ala. 101; Littlefield v. State, 85 Am.

Court of Henry. Tried: before: the I-Iomi. John P. Htjbbabd. This was an action brought by the appellee, J. A. Curry, against the appellant, W. O. O’Neal. The facts of the case are sufficiently stated in, the opinion.

of Colbert. 'Heard before the Hon. William H. Simpson. The bill in this case was filed by the appellee, Stockton Cooke, against the appellants, B.- Niehaus' & Co., a firm composed to B. Niehaus and J. C. Piraldo, and B. Niehaus and J. G. Firaldo individually, and the city of Sheffield.

Tried before the Hon. John P. Hubbard. This action ivas brought, by tlie appellees, Thompson & Harrison, against the Alabama Midland Railway Company, a common carrier, to recover damages from tlie defendant’s failure to deliver freight according to the. terms of a contract of shipment. The material facts of the case are sufficiently shown in the opinion.

Tried before the Hon. O. Kyle. This was a,n action of trover, brought by the appellee, A. E .Fields, agains the appellants, F. Beyer & Son, to recover damages for. the alleged wrongful conversion by the defendant of one bale of cotton, by buying the same from Mrs. S. J. McAlpine, on. which bale of cotton plaintiff had a mortgage.

Appkai, from the Circuit Court of Marshall. Tried before the Hon. Jambs A. Biibro. This was an action of trespass brought by the appellant, John C. Cartel*, against the appellees, Oscar Fulghani and J. Q. Jamar; and soughfl to recover damages for- the wrongful taking by the defendants of plaintiff’s mules. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. Gitas. A. Senn. This was an action brought by the appellee, Edwin H. Foster, against the Kansas City, Memphis & Birmingham E. E. Cot, to recover damages for the alleged wrongful ejection of the plaintiff from one of the defendant’s trains. The complaint contained six counts.

Tried, before the Hou. J. O. Bioiiardson. The appellant recovered judgment againt one Hamilton, upon which judgment an execution was issued. This execution! was levied upon two mules. Thereupon the. appellees-, J. W. Coston & Co-, interposed a, claim to the mules so levied, upon, setting out in their affidavit of claim that the property so levied upon ivas- “not the property of said J. J. Hamilton * * * hut is the property of J. TV.

Appeal' torn the Circuit Court of Jefferson. Tried before the Hon. A. A. Coleman. This action was brought by the appellee,' Sallie E. Mitchell, as the administratrix of the estate of Thweatt E. Mitchell, against the appellant, to- recover damages for the alleged negligent killing of Thweatt E. Mitchell, her intestate, who was run over and kiiled by a train of the defendant in the village of Elmore, on January 1, 1900; the plaintiff claiming $25,000.

• Tried before the Hon. A. A. Coleman. This was an action brought by the appellee, Nannie S. Brook, against tfie appellants, as: partners doing business under tfie firm name of Warner-Smiley C01.

' Heard before the Hon. Thos. H. Smith. The bill in this case was filed by the appellees, residents and tax payers of Marengo county, against Mo-, rengo… Held: and where the county officers have, their offices and the county business is transacted. 7 Am. & Eng. Ency. Law (2d ed.), pp. 1012-1013 and 1017 and citations ; Whallon v. Circuit Judge, 51 Mich. 503; Moffat v. State, 40 Inch 217; In re County Seat, 4 Pa. List. Reports 310-319'; Doolittle v. County Ct., 28 W. Ya. 158.

Tried before the Hon. J. A. Bilbro. • This was a suit brought by the appellee, L. W. Willis, as administrator of J. W. Legg', deceased, against the appellants, C. M. McGhee and Henry Fink as receivers of the Memphis & Charleston Railroad Company, under the employer’s liability'act, to recover for the alleged wrongful killing of plaintiff’s intestate at Stevenson, Ala., on December IB, 1894, it being alleged in the complaint that the plaintiff’s intestate was the yard master…

Tried before the Hon. John O. Anderson. This suit was brought by the appellee, George Parker, against, the appellant, the Bear Greek Mill Go-., to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant as a train hand or loader. The complaint contained five counts. Fndet the opinion it is only necessary to refer to the 1st, 3d and 5th counts. The substance of the 1st count is sufficiently stated in the opinion.

Tried before, tlie Hon. A. D. Sayre. This suit, was brought by tlie appellees, E. E. Forbes and T. F. Wing, against tibe appellants, and counted upon an injunction bond; and sought to recover damages resulting from tlie suing out of -a, writ of injunction. Tlie principal damages claimed were attorney’s fee’s incurred by tili-e plaintiffs.

Tried before tlie Hon. John P. Hubbard. Tliis was an action originally brought by the appellee, D. W. Clark, against tlie appellant, J. L. Jernigan, and C. Jernigan, doing business under the firm namie of J. L. & C. Jernigan. The complaint was subsequently amendediby striking out tlie name, of C. Jernigan, leaving only J. L. Jernigan as party defendant.

Price Williams, Jr. The appellant, Henry Neville, filed a petition for habeas .corpus, addressed to Irom. Price Williams, Jr., judge of the probate court of Mobile county, wherein he sought to have Henry Edward Neville', a minor1 under the ago of 1-1 years, removed from the custody of Josephine Reed and placed in the custody of the petitioner.

Heard before the Hon. William L. Parks. The bill in this, case was filed on September 16, 1901, by the appellee, Harry Hereford, against Lucy Hereford.

Heard before the Hon. A. M. Ayres. On December 2, 1898, the appellant, Simon Whitaker, filed a petition! addressed to the judge of probate of Marshall county, in which the . following facts were averred: In 1861 one Amos Stapler died in Marshall county, leaving considerable -real estate and personal property. His widow resided on the homestead occupied by the deceased at the time of his death up to her death in 1891.

Tried! before the Hon. B. C. Jones. This action ivas brought by the appellee, Mrs. Alpha Nolan, against the Birmingham Railway, Light & Power Co., to recover damages • sustained, by the plaintiff as thei result of being carried beyond her destination while riding on one of the defendant’s, cars and1 being put off at another station, and in failing and refusing to put the plaintiff off where she had notified the conductor she wanted to get off.

Tried before the Hon. John C. Anderson. This action was brought, by the State of Alabama against the Troy Fertilizer Co. to- recover of the defendant the privilege tla,x of seventy-five dollars for each of the years 1897, 1898 ainid 1899, which was alleged not to have been paid by the defendant corporation as required by law. The defendant pleaded the general issue and five special pleas.

Court of Madison. Heard before the Hon. William H. Simpson. Held: by him in the county of Posey, State of Indiana, in lands situated in the county of Madison, State of Alabama, and with the fraudulent intent aforesaid, and for the purpose of hindering amid, delaying your oratrix in the collection of anjr decree that might thereafter he rendered against him, and for the purpose of preventing your…

Tried before the Hon. James Trotter, Special Judge. This was an action of assumpsit brought by the appellee, 31. E. Anderson, 'against the Bessemer Savings Bank to recover a balance of a sum of money deposited with the defendant by one R. W. Anderson, which balance was alleged to belong to the plaintiff. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. *Ohas. A. Senn. ■ This action was brought by the appellee:, Martha E. Miller, against the appellant, Fex’d Marx.

Tried before the Hon. A. A. Coleman. This was an action brought by tlie appellee, llobert A. S. Freeman, against the Central of Georgia Kailway Company, to recover damages for personal injuries. The complaint contained five counts, in each of which the plaintiff claimed $20,000.

Heard before the Hon. William H. Simpson. On the 18th day of April, 1898, Jas.

Heard before the Hon. Thos. H. Smith. The bill in this case was. filed by the appellee, the Fidelity and Deposit Company of Maryland, against the appellants. The facts of the bill amid tlie purpose for which it was filed, are sufficiently stated in the opinion. In addition to the demurrers interposed by the other defendants, the defendant, Carter, demurred to tlie bill' upon several grounds, which may be summarized as follows : 1.

Hoard before the Hon. William II. Simpson. Tin1 bill in this ease was filed by the appellant, John P. Lagamarsino, 'against the appellee, Belle T. Crowe and her husband, Janies It. Crow; and prayed to have the defendant- enjoined from erecting on lot 14 in block 71, in the city of Sheffield, which adjoined a lot owned by the complainant, a, two story brick wall in the course of construction.

Bogatzky Bros! & Co: instituted a suit in a justice of the peace court: against “A. B. & N. Fleisher, a firm composed of A. B. and N. Fleisher, and also A. B. Fleisher,” to recover upon an itemized account. The return made-by the constable on the summons and complaint was as follows: “Executed by personal service on' A. B. & N. Fleisher, this the 11th day of March, 1902.” Judgment was rendered against the defendants, and upon this judgment execution was issued.

Tried before the Hon. Chas. A. Senn. This action was brought by the appellee, C. H. Wagand, against the appellant, to recover damages for the loss., of a mule; plaintiff claiming $150.

Appeals from the Circuit Court of Lauderdale. Tried before the Hon. E. B. Almon. These two cases are submitted together, inasmuch as they involve the construction of the same statute.

Tried before the Hon. John H. Bisque. This was a. suit by the city of Alabama, City against the appellant, to recover several sums alleged to lie due to the plaintiff for license or privilege tax for the der fendan't, engaged iu tire business in Alabama City of operating its railroad therein, for -the transportation of freight and passengers, one or both, to points in the State of Alabama aunt from other points in the State of Alabama to' Alabama, City; it' being averred in…

Heard before the Hon. Chas. A. Sidnn. The bill was filed by Mrs. E. E. Miller agajnst Mrs. C. Worthington and W. H. Worthington to set aside a sheriff’s deed' made to said Mrs. O. Worthington, conYeying to her the property of W. H. Worthington.

Tried before the Hon. James A. Bilbro. The appellant in this case was tried and convicted under the following indictment: “The grand jury of said county charge that before the finding of this indictment, Clarence G. Willis, an agent of the Southern Railway -Company, a corporation under the laws of the State of Virginia, embezzled or fraudulently converted to his own use money to about the amount of three hundred and six dollars which came into his possession by virtue of his…

Heard before the Hon. Jere N. Williams. Tlie bill in, t-bis case was filed by J. L. Hall and L. B. Farley, trustees, as assignees of a judgment recovered by one Hall, as receiver' of the Farley… Held: “The court cam not, in aid of the bill, presume the existing of material facts notl averred.” 4.

Tided before the Hon. S. H. Sprott. The proceedings ini this case were instituted by an application filed by the appellants and addressed to the Judge of the Sixth Judicial Circuit asking for a writ of prohibition to restrain the respondent, R. L. Bradley, judge of probate of Lamar county, from ordering an election of the land owners of precinct Noi. 1 of Lamar county, to ascertain whether or not a majority of the residents of said precinct desired a stock law therein. ’ On…

Tried before, the Hon. Daniel A. Greene. The appellant in this case, Will Dorsey, was indicted, tried anld convicted for robbery, and was. sentenced to-be hanged. The facts of the case are sufficiently stated in the opinion. cited State v. Lawler, 32 S. W. Rep. 981; Commonwealth v. Clifford, 8 Cush. 215; State v. Meyers, 99 Mo.. 107, 12 S. W. Rep. 51G.

Heax’d before the Hon. A. H. Alston. 'The bill in this case11 was filed by the appellee, M. A. Wood, against the appellant, Willis C.- Wood; and sought to have the defendant enjoined from the attempted foreclosure of a mortgage executed by the complainant, and others to the defendant, and to1 have it declared that the question of indebtedness vel non upon said mortgage had been adjudged by a court of competent jurisdiction ascertaining that there was nothing due thereon, and…

Tried before the Hon. B. C. Jones. This was an action of trover brought by the appellee, Mrs. M. S. Stewart, against the appellant. From a judgment in favor of the plaintiff the defendant appeals. The only ruling of the lower court which is reviewed on the present appeal was based upon the court’s overruling the defendants objection to tire allowance of the amendment to the complaint.

Tried before the Hon. John C. Anderson. This was au action brought by the appellee, J. B. Jones, against Mary Linam and was commenced before a justice of the peace, the plaintiff suing out an attachment a® landlord for the collection of rent alleged to be due. After judgment rendered in favor of the plaintiff by the justice of the peace, the defendant; appealed to the circuit court.

Appeal- from Morgan 'Chancery Court. Heard before Hon. Wm. H. Simpson. The bill was filed by A. May Miller against J. E. Penney and Miller and Palma,tier. The facts alleged therein are shown by the opinion.

Tried before the Hon. 'A. H. Alston. This action was brought by the appellant, William Cleghom, against the Western Railway of Alabama. The complaint contained three counts.

This was an application for mandanms originally filed in. the Supreme Court by the Mayor and Aldermen of Birmingham.

Heard before the Hon. John H. Disque. The appeal in this ease was prosecuted from a decree overruling demurrers interposed by the defendant, who were respondents, to a bill filed by the appellee, the Tennessee & Coosa Eailroad Company. The facts of the case are sufficiently stated in the opinion.

Heai'd before the Hon. William L. Parks. The bill in this case was, filed by the appellees, Carmichael & Flynt, against the 'appellants.

<p> Bill in Fquitij for ticxeiütiion of (■o-ntract for Fraud and to enjoin Action at Law. </p> <p>1. Assignment of funds, what constitutes; draft; acceptance. — An order drawn by one person upon another for the payment to a third person of a certain fund does not constitute an assignment of such fund until it is accepted.</p> <p>2. Rescission of contract for fraud; when Mil has equity; adequate remedy at law. — A bill alleged that A., complainant, desiring to sell a large amount of real and personal property at .auction, conferred with G., an intimate and confidential friend, as to the employment of an auctioneer, and solicited G.’s aid and advice in procuring the auctioneer; that G. recommended one F. and brought about a conference between A. and F. which, resulted in F.’s being employed at a commission of five per cent; that G., after being called on by A. for his aid and advice, and before the employment of F., entered into a secret agreement with F. for a division of commissions, and in order to enable F. to get the employment, falsely and fraudulently represented to, A. that he (G.) had seen other auctioneers and they had.said 5 per cent was as low as they could make the sale for, and that he could not get the work done for less than that; that complainant relying on these representations, entered into the contract with F.; that in fact the auctioneers, whom G. had seen, had in no instance priced the work higher than two and a half per cent.; that said F. was not as capable an auctioneer as they were, and that his services were not really worth exceeding one and one-half per cent; that G., after the indebtedness from A. to F. accrued, procured from F. an order for one-half of said commissions, and had brought suit therefor at law and also sued F. and garnished A.; that.F. had not brought suit against A.; that complainant, as soon as he learned of the falsity of said representations, informed F. that the contract was void by reason thereof and that he refused to be bound by it, but that he was willing to pay F. a reasonable: amount for his services, which in the bill he offered to do. Held', that the bill against G. and F. for a rescission1 of said contract and an injunction of said actions at law was not wanting in equity and that complainant had no adequate legal remedy.</p>

Heard before the I-Ion. A. D. Sayre.- The tax collector of Montgomery county assessed against the Alabama Bible Society, a corporation, certain real estate in the city of Montgomery, foir escaped taxes for the years 1896-1900. A petition was filed by the Bible Society with the board of revenue, praying that said assessment he set aside and vacated, which petition was denied. On appeal to the city court, of Montgomery that court granted the petition and quashed the assessment.

Tried before the Hob. S. H. Sprott. The appellee, A. Holczstein, was tried for the violation of a city ordinance, and from a judgment of acquittal the municipality appeals. • The city charter of Tuscaloosa will be fouud in Acts of Alabama, 1894-95, page 1079.

Tried before the Hon. William W. Wilkebson. This action was brought by the appellee, Mrs. Alice D. Mayo, against the appellant, the Southern Bell Telephone & Telegraph Company, to. recover ten thousand dollars damages for personal injuries received by the plaintiff while she was on a public highway in Pratt City, caused by the falling of a cable of the defendant’s company, which it is alleged in the complaint fell by reason of the negligence of the defendant.

Appeal Horn the Probate Court of Jefferson. Heard before the Hon. J. P. Stiles. This was ai petition fileld by Joseph F. Johnston, as administrator de bonis non of the estate of Thomas Peters, deceased, for the sale of land for the payment of debts of the deceased.

Tried before the Hon. John C. Anderson. Action by L. Hammell, as transferee and assignee of a certain note executed by Prim & Kimbell to B. F. Fitzpatrick & Co., and endorsed and delivered by them to plaintiff for value before maturity. The opinion shows all material facts.

<p>Appeal from Anniston City Court.</p>

<p>Appeal from Chancery Court of Geneva.</p>

<p>Appeal from the City Court of Montgomery.</p>

<p>Appeal from Circuit Court of Pike.</p>

<p>Appeal from Circuit Court of Jefferson.</p>

<p>Appeal from City Court of Montgomery.</p>

<p>Appeal from Bessemer City Court.</p>

<p>Appeal from Criminal Court of Jefferson.</p>

<p>Appeal from Circuit Court of Morgan...</p>

<p>Appeal from order of Probate Judge of Bibb County allowing Bail on Habeas Corpus.</p>

<p>Appeal from City Court of Montgomery.</p>

<p>Appeal from the Circuit Court of St. Clair.</p>

<p>Appeal from J eff erson Circuit Court.</p>

<p>Appeal from Chancery Court of Cullman.</p>