Volume 137 — Alabama Reports

Tried before the Hon. Daniel A. Giieene. The appellant in this case, Robert Stone, was indicted, tried and convicted for the murder of W. H. Thomas, and was sentenced to he hanged. The bill of exceptions contains the following recitals as to the organization of the. jury to try the case: “At the time of entering upon the trial of the cause, twelve of the venire were absent upon the consideration of the verdict in another case.

Tried before the Hon. William H. Ti-iomas. The appellants, Will Starks and Alex Means, were indicted and tried for the murder of Flem Foster, were convicted of murder in the first degree and sentenced to be banged. On the trial of the case, it was shown that in Montgomery county before the finding of the indictment, about 9 o’clock- at night, Flem Foster was shot down near the store of one Stanford, and that he died from the effects of said wound.

Tried before the Hon. Samuel E. Greene. •The appellant in this case, Albert Jones, was indicted, tried and convicted for the murder of Walter Cotton, and was sentenced to be hanged.

Tried before the 1-Ion. J. C. Richardson. The appellant in this case, Albert Angling, was tried under a,n indictment charging him with murder in the second degree for the killing of Harray Avant, was convicted of manslaughter in the firse degree and sentenced to the penitentiary for five years. • The State introduced evidence showing that the deceased died from a gun shot wound in the hack, and also introduced in evidence the testimony of a confession of the defendant that…

Tried before the Hon. John Moore. The appellant in this case, Frank Smith, was indicted, tried and convicted for the murder of Bob Davidson and was sentenced to be hanged. The evidence tending to connect the defendant with the killing of Bob Davidson was partly circumstantial. The killing occurred about dark.

Tried before thei Hon. William H. Thomas. Tlie appellant in this case, Jordan Tarver, was indicted and tried for the murder of Ann Tarver, ivas convicted of murder in the second degree and sentenced, to the penitentiary for forty jrears. The bill of exceptions contains the following recital as to tlie rulings of the court in the organization 'of the jury: “The name of S. S. Higgins a special juror summoned to try this cause was called and he failed to answer.

Tried before the Hon. John Moore. The appellant in this case, Jim Stewart, was indicted, tried and convicted for the murder of Will Mims and was sentenced ten he hanged.

Tried before the Hon. Daniel A. Greene. The appellant in this case, Felix Hall, was indicted, tried and convicted for the murder of Norwood Clark, was convicted of murder in the first degree, and sentenced to he hanged. On the trial of the case it was shown that Norwood Clark was killed by being- shot with a pistol or pistols in the hands of Felix Hall and one Will Miller.

Tried before, the Hon. Daniel A. Greene. The defendant, in this case, Sidney King, ivas indicted, tried and convicted for murder in the first degree and sentenced to be hanged.

Appeal .from the Circuit Court of Hale. Tried before the Hon. John Moore. The appellant in this case, Ben Collins, was indicted with Flan Flanagan, William Sample and Carrie Collins, for the murder of John Winningham. There was a. severance, and on the trial, this appellant was convicted of murder in the first degree and sentenced to be hanged.

<p>Appeal from the City Court of Gadsden.</p> <p>Tried before tire Hon. John H. Disque.</p> <p>The appellant in this case, Draper Pope, was indicted, tried and convicted for seduction, and was sentenced to the penitentiary for three years.</p> <p>In addition to the facts testified to by the prosecutrix set forth in the opinion, she further testified that the first time the defendant had sexual intercourse with her, it was against her protest and although he promised to marry her, she did not consent, and was not willing to the commission of the act. The other testimony of the prosecutrix tended to show that she interposed no objection to the subsequent sexual acts but consented thereto.</p> <p>The defendant requested the court to give to the jury the following written charges, and separately excepted to the. court’s refusal to give each of them as asked: (1.) “There is no duty devolving upon this jury to convict or either acquit to elevate the colored race.” (2.) “Unless the jury believe from the evidence beyond a reasonable doubt that the female willingly consented to the first act of sexual intercourse, with the defendant he is not guilty.” (3.) “If the female did not consent to the first act of sexual intercourse and the defendant had such intercourse by force and against her will, the jury must find him not guilty.” (4.) “The jury’ must believe beyond a reasonable doubt from the evidence that, the female willingly consented to the first act of sexual intercourse1 because of a promise of marriage, or because of arts, temptations, deceptions, or flattery used by the defendant, and not a desire to gratify passion only.” (5.) “If the jury believe from the evidence that the prosecutrix yielded her virtue by reason of the force used by the defendant and not by means of temptation, deceptions, arts, flattery, or a promise of marriage on the part of the defendant, then they can not convict him.” (6.) “The question of whether the colored race will he elevated by a conviction in this case is not a question to he considered by the jury.” (7.) “If the jury are reasonably satisfied from the evidence that at the time of the alleged seduction defendant used force and had sexual intercourse with the female without her consent, the jury must, find the defendant not guilty.” (8.) “If the first time defendant had sexual intercourse with the female, if he did have sexual intercourse with her, the female being unwilling and not consenting to the act, and he accomplished the intercourse by force, the defendant is not guilty.”</p> <p>This is a charge of seduction, not of rape, and not of adultery. Hence subsequent acts of adulterous intercourse are not competent evidence to prove the seduction. This testimony should have been excluded, and the court erred in permitting evidence of adulterous acts of intercourse between the defendant and tlié woman alleged, to have been seduced to go to the jury. Having elected as to the act of seduction the State can not introduce other acts of adulterous intercourse to show a seduction, unless it may be said that the first act was by force and against the woman’s will, in which event the second act testified to was an election on the part of the State, and all subsequent acts of adulterous connection were incompetent. Wickard v. State, 109 Ala. 45; Smith v. State, 52 Ala. 384; McPherson v. State, 54 Ala. 221; McCullough v. State, 63 Ala. 75; Bonham v. Stale, 61 Ala. 22; Carlelon v. Slate, 100 Ala. 130; Williams v. State, 77 Ala. 53; Chappell v. State, 86 Ala. 54: Sullivan v. State, 68 Ala. 599.</p> <p>If the criminal act was done with force and against the woman’s will, and this theory is supported by the evidence, the offense was rape and not seductiont — McQuirk v. State, 84 Ala. 435; Dawkins v. State, 58 Ala. 376; Hooper v. State,' 106 Ala, 41; Norris v. State, 87 Ala. 85; Jones v. State, 90 Ala. 629; Marcus v. State, 58 Ala. 376; State v. Murphey, 6 Ala. 765; Waller v. State, 40 Ala. 325; Jones v. State, 104 Ala. 33; Allen v. State, 87 Ala. 107.</p> <p>In seduction the evidence must show a promise of marriage or arts-, temptations, flattery, deception, and in consequence of which the female Surrenders her person to the gratification of the man. The one. must depend upon the other. — Cooper v. State, 90 Ala. 641; Carney v. State, 79 Ala. 14; Smith’s Case, 107 Ala. 139.</p> <p>-In prosecutions for seduction the State is not required to elect. Even if there is hut one count in the indictment and the proof tends to show more than one act of sexual intercourse a conviction may properly he had, and the jury should not be confined to the consideration of the evidence which tends to establish any one particular act of intercourse. — Smith v. State, 107 Ala, 139; Wilson v. State, 73 Ala. 527; 21 Amer. & Eng. Encyc. of Law, (1st ed.), 1043.</p>

Tried before the Hon. Daniel A. Greene. The appellants in this ease, Will Hudson, Abe Williams and Will Jones, were jointly indicted with two other defendants, John E. Bryant and Robert Lee, for robbery of one John B. Messer, were convicted of the offense charged and sentenced to be hanged. The facts of the case relating to the rulings reviewed on the present appeal, are sufficiently set forth' ini the opinion.

Tried before tlie Hon. William E. Skeggs. Tlie appellant in tliis ease ivas indicted, tried and convicted for living in a. state of adultery of fornication with one Iuka Smit-li. There was evidence introduced on the part of tlie State tending to show that the defendant was guilty of the offense charged. Jim Thompson ivas a witness introduced for the State and testified to having seen the defendant and Iuka Smith in bed together.

Tried before tlie Hon. William H. Ti-iomas. The appellant in this ease, George Verberg, was tried and convicted under tlie following' indictment: “The grand jury of said county charge that before the finding of this indictment, George Verberg feloniously took and carried away twoi and 50-100 dollars, money of tlie United States, the further description of which is to tlie grand jury unknown, the personal property of Willis Bell, Jr., against the peace and dignity,” etc. Tlie…

Tried before the I-Ion. -Daniel A. Greene. The appellant in this case was tried and convicted under a prosecution, Avhicli Avas commenced by an affidaAÚt, Avhicli AAras in words and figures as follows: “Personally appeared before me, Ira Dement, a justice of the peace in and for said county, J. L. Campbell, who being duly SAvorn, says on oath, that he has cause to believe and does belieAre that within twelve months before making this affidavit in said county, M. F. Sims did…

Appkau from the Circuit Court of Henry. Tried before the Hon. John P. Hubbard.

Tric'd before tlie lion. 'William XL Thomas. Tlie appellant in this caw*. Porter Henderson, vas tric'd and convicted for obtaining money under false pretenses; it being charged that with the intent to defraud James T. Andrew, the defendant did falsely pretend that lie had earned from the Plant System Railway eighteen dollars., and that by means of such false pretenses, received, from Janies T. Andrew eighteen dollars.

.Appeal from tlie City Court of Montgomery. Tried before the lion. William H. Thomas. The appellant in this casi-, William Sandwich, was indicted, tried and convicted for gaining. The facts of the case necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion. cited Code, § 4805; Taylor v. State, 12Í Ala. 24. cited (ribvan v. State, 91 Ala. 64; Drake v. State, 110 Ala. 9; Williams v. State, 103 Ala. 33.

Tried before the Hon. H. J. Lancaster. The prosecution against the appellant in this case was commenced by an affidavit made by O. II. Daniel before the judge of the county court of Elmore county, 'which affidavit was in words and figures as follows: “Before me, II.

Attica u from tin* Circuit Court of Pike. Tried before the IIon. John P. Hubbard.

Tried before tbe Hon. M. B. Abercrombie. Tbe facts of tbe case are sufficiently stated in tbe opinion. There was a fatal variance betunen tbe allegations of tbe complaint or affidavit upon which the defendant in this case, was tried, and tbe. proof, and for that reason tbe defendant was wrongfully convicted. — McOehee v. State, 58 Ala. 360; Elliott v. State, 26 Ala. 78.

A weal front the County Court of Elmore. Tried before tlie Hon. H. J. Lancaster.

Tried before the Hon. William II. Thomas. The appellant in this case, Leroy Jackson, was in-dieted, tried and convicted for the larceny of a cow.

Tried before the Hon. William H. Thomas. The appellant in this case, Harry Brown, was indicted, tried and convicted for gaming. The State introduced two witnesses who testified to the defendant having played at a game with dice at one of the places prohibited by the statute on or about May 15, 1901. One of these witnesses ivas named Barker.

Tried before the Hon. S. H. Bproxt. The appellant in this case; Tom Johnson, was indicted, tried and convicted for carrying on a lottery. The facts relating to the court entering a nol. pros, as to the second and third counts of the indictment, are sufficiently shown in the opinion.

Tried before five Hoñ. John M. Loelin. The appellant in this case was prosecuted and convicted of ihe offense of using obscene or insulting language in the presence of females. The prosecution was commeuced by a, complaint and a warrant issued there-' on.

Heard before the Hon. J. J. Harlan. Ellis Berkstresser was arrested upon a warrant issued by N. I). Denson, judge of the Fifth Judicial Circuit, charging him with murder. Sitting as a magistrate, the said-N, D, Denson remanded defendant to jail without bond. Subsequently, upon petition therefor, J. J. Harlan, probate judge of Tallapoosa county, awarded a writ of habeas corpus, and upon the hearing thereof, admitted petitioner to bail in the1 sum of $2,000.

Heard, before the Hon. William L. Parks. The bill in this case was filed by the appellee, Calton E. ¡Sellers, against the appellant, Byrd 'G-. Farmer.

-Appeal from-the City Court of--Montgomery. Tried before the Hon. A-. I). Sayre. This was an action brought by the appellee against the appellant; and-counted upon a life insurance policy.

Heard before Hon. W. W. Vvilkeeson. The bill in this cause was filed by Wm. G. Beckley against the United States Savings & Loan Company, md sought to have the contract therein set up declared usurious,.and to be relieved of the usury, by paying the fi 1! amount borrowed, together with such interest as the court should adjudge he was bound in equity to pay.

Tried before Hon. A. A. Evans. ' This was an action by G. M. Hanson against I. F. Culver to recover damages for breach of contract. Upon the death of the plaintiff the suit was revived in the name of Caldwell as bis administrator.

Appear from tiie City Court of Montgomery, in Equity. Heard before the Hon. A. D. Satke. ’ The original' bill in this case was filed by the appellee on January 17, 1896, against the Montgomery Iron Works, a corporation, J. W. Dimmick, A. M. Baldwin, and Geo. W. Craik.

Heard before the Hon. A. D. Sayre. The bill in this case was filed by the appellant, Susan E. Sharpe, against the appellee, Johanna Marcus. The purpose of the bill and the facts of the case are sufficiently stated in the opinion. On the final submission of the cause on the pleadings and proof, the chancellor rendered a decree denying the .relief prayed for, and dismissing the bill.

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

Heard before the Hon. Thos. H. Smith. The appellants, Titos. Held: and that said court of county commissioners has the right to build the. neAV court house on the lot which they had acquired for that purpose Avithout holding an election. In said answer the respondents denied the averments contained in the supplemental bill as to the status of the funds in the county treasury.

Heard before the Hon. William H. Simpson. The appellee, the Meridian P'ertilizer Factory, filed a bill in the chancery court of Lamar county against the appellants, M. C. and M. A. Smothers. It was averred in the bill that hi.

of Jackson. Heard, before the 1-Ion. .William H. .Simpson.. The bill in this case, urns filed- by the appellant, Willis Hodge, against W. J. McMahan and-Horton Mc-Mahan,. partners under the .firm .name of W. J. McMahan & Oo.

Tried before the Hon. Osceola Kyle. This, was-an actio® -of* assumpi-st brought- by the.-.-ap-rpaLl-ees,-- Bunn- & Allison,■ -a; partnership, .against-; the appellant, A. L. Dalton,. to recover- six hundred - -dollars.

Heard before the Hon. William L. Parks. , The bill in this case was filed by the appellant, H. M. Day as constituting the firm of II. M. Day & Co., for the purpose, of reforming and enforcing a mortgage executed by the. appellee, Shady Shiver, and her husband, J. J. Shiver.

■ Tried before the Hon. William S. Anderson. ■-..The appellant, Jennie O. Chamberlain, brought an •action.against Whiting Ames, in which a judgment was recovered Tn favor of the'plaintiff. Upon this judgment a writ of garnishment was issued and served upon the Mobile Fish & Oyster Company. The proceedings in the present case were had upon a contest filed by the plaintiff of the answer of the garnishee. The faicts-of the case are sufficiently stated in the opinion.

Tried before the lion. Peyton Norvelw. This was an action brought by the appellee, J. A. Jennings, against the appellants, Long Brothers, .to recover the statutory penalty of $200 for failing, after request in writing, to enter on the record of a mortgage a partial payment.

Heard before the ITon. Richard B. Kelly. The bill in this case ivas filed by the appellants, S. L. Lester and S. R. Lester, to correct a misdescription in a mortgage made by respondents, Mrs. S. F. Johnston and W. IT.

Tried before tbe Hon. A. A. Evans. This was a statutory action of ejectment, brought by the appellants against the appellee, John M. -Hanners, to recover 114 acres of land specifieially described in the complaint. The defendant pleaded the general issue and adverse possession.

Tried before the lion. N. I). Denson. This was an action brought by the appellant, W. O. Davis, against the Common Council of Alexander City, to recover damages for personal injuries, alleged to have been sustained by the plaintiff, by reason of a defective condition of a street in the town of Alexander City.

'Tried before the Hon. John H. Disque. ' This' action was brought by the appellant, . A.' G: Thornton, against the appellee, the Dwight Manufacturing Oonipany. The ' complaint contained three Count's, which were in words and figures as follows; “1. The plaintiff claims of thé defendant four htmdred dollars damag'es for wrongfully taking the following goods and chattels, the property of the plaintiff, viz.: forty thousand, two hundred and ninety-nine feet of pine lumber. “2.

Appeal .from the Chancery Court of Tallapoosa. Heard before the'Hon. Richard B. Kelly. The bill in this case was filed by the appellee, H., J. Cameron, against the appellant, the Romanoff ‘Mining Company.

Heard before the Hon. William H. Simpson. The bill in this case was filed by the appellee, James M. Grady, a stockholder in the Northwestern- Land Association, against the Northwestern Land Association and certain of its officers and certain other parties, who are averred to have conspired with such officers to deprive the corporation of valuable property, etc. The purpose of the bill and the facts of the case, necessary to an understanding of the decision on the present…

AppExAL from tlie Chancery Court of Jefferson. Heard before the Hon. John C. Carmichael. The bill in this case was filed by the appellees, W. C, Shackelford and Jos. V. Allen, against the appellants, the Alabama Coal & Coke Co., a corporation, Adler & Co., a co-partnership, and Morris Adler, Samuel M. Adler and Edgar L. Adler. The following facts were averred in the bill: The Alabama Coal & Coke Company was a corporation duly organized under the laws of the; State.

Tried before Hon. Joitn Pelham. • The plaintiff, J. S. Bartlett, brought this action against the Southern Car & Foundry Company, and sought to recover damages for personal injuries received’by him while in defendant’s employment. The several counts of the complaint construed in the opinion alleged the date of the injury and its nature and character and that plaintiff was in defendant’s employment as a mill-wright.

Heai'd before the Hon. William L. Parks. The hill in this case was filed December 18th, 1901, by J. R. haircloth and D. 11 Fulton as partners composing the firm of Fulton & Co. against Ophelia A. Carroll aiid Chaldee Peacock, widow and minor respectively of Delaware Peacock, deceased, the widow having married Carroll since the death of her husband, Delaware Peacock.

Tried before the Hon. John Pelham. This action was brought by the appellee, Fhiillip Jennings, against the Southern Car & Foundry Company, to recover damages for personal injuries caused the plaintiff while at work in the employ of the defunda,nt. Tlie complaint contained three counts, in each of which plaintiff claims $5,000.00 damages. As stated in the opinion, the case was tried upon the first and second counts.

Tried before the Hon. J. A. Brumo. This was a statutory action of ejectment brought by the appellant against J. H. Greenwood and his wife Mollie Greenwood, to recover possession of certain real estate specifically described in the complaint. The plaintiff asserted title to the property sued for by virtue of a mortgage theretofore executed to it by the defendants in which their conveyed the property here sued for.

Tried before the Hon. J. J. Mayfield. This action ivas brought by the appellee, Tuscaloosa County, against, the Birmingham Mineral Railroad Company, to recover $488.69 with the interest thereon from the first- day of January, 1901, as a balance due the plaintiff. as a special tax levied on defendant’s property in Tuscaloosa county, Alabama, for the year 1900 for bridges and. public buildings. The facts of the case are sufficiently stated in the opinion.

Heard before the Hon. W. L. Parks. The bill in this case was filed by the appellee, William McLeod, against the appellants, Sallie E. McLeod, indivduallv, and as administratrix of. the esetate of James O. McLeod, deceased, and against the other children of the complainant.

Tried before the Hob. M. Sollie, Special Judge. This was a statutory action of ejectment brought by the appellants against appellees to recover am undivided one-tliird interest in certain specifically described lands. The facts of the case are sufficiently stated in the opinion.

Tried before the Hon. A. H. Carmichael, Special Judge. , >' This action was brought by the appellee, Virginia F. Irvine, against the Mayor and Aldermen of the city of Florence, to recover damages for alleged injury to plaintiff’s property caused by cutting down and grading a street and side walk upon which the plaintiff’s property abutted. From a judgment in favor of the plaintiff the defendant appeals.

Tried before the Hon. John P. Hubbard. This was a statutory action of ejectment, brought by the appellants^ Ida McCreary, John Finley, James Finley and George Finley, against the appellant, the Jackson Lumber Company, to recover lands specifically described in the complaint. The facts of the case necessary to an understanding of the decision on the present appeal,, are sufficiently stated in the opinion.

Appeal froto the Chancery Court of Jefferson. Heard before the Hon. J. C. Carmichael. ' The hill in this case was filed by the appellees, Nannie S. McLester and three other person on behalf of themselves and such others of the stockholders of the Woodlawn Cemetery Company as would make them party to the suit and share the expensese thereof, against L. W. Johns and the Woodlawn Cemetery Company.

Tried before the Hon. A. A. Coleman. The plaintiff was the sendee of a message which ivas sent to her by her brother, Frank Lash, telling her of the dying condition of her father, and summoning her to his bedside. There was evidence introduced on the part of the plaintiff tending to show that Frank Lash the sender of the; message ivas acting as agent of the plaintiff and for her bepefit.

Heard before the Hon.. William L. Parks. The bill in this case was filed by the appellant, George N. Skinner, against the appellees, Robert M. Jennings and his wife, Janie G. Jennings. The purpose of the hill and the facts necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

Heard before the Hon. William H. Simpson. The hill in this case was filed by the appellant, George W. Inglis, against the appellee, Alabama Freeman, and averred that in January, 1895, the complainant purchased from the defendant and paid for all the cedar timber growing on a vertain specifically described tract of land belonging to the defendant; that the defendant executed and delivered to him a deed to said cedar timber regular in form; that under such purchase and deed…

Aiteal from the Chancery Court of Autauga. Heard before the Eon. Richard B. Kelly. Held: because the order or decree for the reference had been made by the chancellor in vacation against the objection of the respondents and was made without any note of testi-mony. This objection was overruled by the register.

Court of Jefferson. Tried before the Hon. A. A. Coleman. This action was brought by the appellee, Peter- F. Goss, against the Louisville1 & Nashville Railroad Company. The-, complaint contained two counts, in each of which the plaintiff . claimed $25,000.00 damages. The injuries sustained by the plaintiff were that his arm was amputated at the right elbow and he was otherwise injured and suffered great physical pain, etc. The facts are sufficiently set out in the opinion.

Ai-teab froau the City Court of Montgomery, in Equity. Heard before the Hon. A. D. Saybe.

Appear from the 'Chancery Court of Butler. Heard before the. Hon. W. L. Parks. The-bill in this case was filed by the appellee, Felix Candy, against the appellant, T. L. Rose. The facts of the case necessary to an understanding of the clecisi'on on the present appeal are sufficiently stated in Uie opinion. On the final submission of the cause on the pleadings and proof, the chancellor decreed that the complainant was entitled to the relief prayed for and so ordered.

'Pried before tlie Hon. J. A. Bilbro. This was a statutory real action in tlie nature of ejectment, brought by the appellee, Wiley Hewlett, against the appellant, K. H. Bynum, to recover possession of a certain Jot of land in tlie town of Scottsboro. Issue was joined on the plea of the general issue.

Heard before the Hon. W. L. Parks. The original hill in this ease was filed hy M. C. Em-finger against the appellants. After the filing of the original hill, M. O. Emfinger died and the suit was revived in th name of W. O. Emfinger and Charles Dickinson, administrators of the estate of M. O. Emfinger, deceased. The purpose of the bill and the facts of the case are sufficiently stated in the opinion.

Tried before the Hon. A. A. Coleman. • This action was brought by the appellee, James Ma-. son, against the. Birmingham Railway & Electric Company, to recover damages for an assault committed upon him by an employee of the defendant, the plaintiff' claiming $5,000 damages. The facts of the case necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion.

Ait’BAL from the Circuit Court of Covington. Tried, before tlie Hon. Joi-in P. Hubbard. This was a common law action of ejectment brought by tiie Williams Investment Company against the appellee, ;Jolm Pugh. The demises were laid in nine different persons and plaintiff relied for a recovery upon the different conveyances to said persons as follows: 1.

Tried before the Hon. A. .1). Sayiie. This was an action brought by the appellant, the Georgia Home Insurance Company, against the appellee, F. M. Boykin. The complaint contain four counts.

Heard before the Hon. W. L. Parks. The bill in this, case was filed by the appellant, J. R. Motes, against the appellee, the People’s Building & Loan Association of Troy, Alabama.

Tried before the Hon. John O. Carmichael. The hill in this case ivas filed by the complainant, the Birmingham Trust & Savings Co. against Jefferson County, and the Jefferson County Sanitary Commission, and averred in the bill that the Jefferson County Sanitary Commission was a body corporate created by the act of the General Assembly of Alabama, approved February 28, 1901, (Acts of 1900-1901, pp. 1702-1719) that said Jefferson County Sanitary Commission was created to act…

Heard before the Hon. William H. Simpson. The bill in this case was filed by Mollie Teal, deceased, against the Mayor and Aldermen of the city of Huntsville and others.

Tried before the Hon. John Pelham. This was an action of assurapist upon the common counts, brought- hy the appellees, Wagnon Bros., against tlie appellant, ‘the Alabama Construction Company, and sought to recover for work and. labor clone by the complainants for the defendant. The plaintiffs offered evidence tending to show an indebtedness from the defendant to the plaintiffs for work performed by the plaintiffs as sub-contractors in the construction of a railroad.

Tried before the. Hon. J. A. Bilbro. On the 10th day of April, 1899, the appellants, C. M. Hamaker and. W. T. Bennett, executed to the appellee, three chattel mortgages, each in the sum of $300, and due July 30, October 30, 3899, and January 10, 1900, respectively. On each of said mortgages payments were made near the date of maturity, leaving a balance, due on each of them.

Heard before the Hon. A. D. Sayre. The original bill in this case was filed on October 26, 1898, by H. O. Cheatham and B. F. Cheatham, against the National Building & Loan Association. The bill was amended on October 31, 1898.

I-Ieard before the 1-Ion. John- C. Carmichael. This is a. bill in equity filed by the appellee against the appellant, seeking injunctive relief against the defendant from cutting timber from certain lands situate in Walker county, Alabama, the minerals in which, together with all necessary timber and other easements commonly termed mineral rights, are owned by the complainant, and the surface by another party, under whom ihe defendant claims the timber on the lands under a…

■Appeal from the City Court of. Montgomery. Tried before the Hon. A. I). Sayre. This was an action brought by the appellee, W. T. Arnett, against the appellant, The Western Railway of Alabama, in which the plaintiff claims .$5,000.00 for personal injuries received by him while in the employment and service of the defendant as section hand or laborer on the track of defendant’s road.

Heard before the Hon. Richard B. Kelly. The. appellees in this case, filed a petition in the Chancery Court of Shelby county in a cau.se entitled Marie L. E. Gemían, Executrix of tlie estate of Joseph Verchot, against the American Pig Iron Storage Warrant Company and others. Marie L. E. German, was formerly Marie L. E. Verchot. The petition was in words and figures as follows: “Come W. P>.

Tried before the- Hon. Osceola Kyle. This action was brought by the appellee, Thomas Starnes, against tlie appellant, O. M. Robinson, to recover damages for false imprisonment.

Tried before the Hon. William H. Simpson. The facts of tills case are sufficiently stated in the opinion. The appeal is taken by the respondent from a decree of the chancellor overruling the demurrers interposed to the bill, and the rendition of this decree is assigned as error. It: is a well settled principle of law, that in all cases where statutes contravene the common law, they must be strictly construed.

Tried before the lion. A. A. Coleman. This action was brought by the appellees, James C. Duncan and Joe C. Orr, against the appellant, Louisville & Nashville Railroad Company. The complaint is set out at length in the opinion. The defendant demurred to this complaint, but the demurrer was overruled by the court, and to this ruling* the defendant duly excepted.

Heard before the Hon. William L. Parks. The facts of the case are sufficiently stated in the opinion. The wife had the legal right to purchase the demands against her husband, or to assume the payment of his debt.

Tried before tlie Hon. Ed. B. Almon. This action was brought by the appellees, Wilson & Company, a partnership, against the appellant, Bichará. Johnson. The complaint contained four counts. Two of the counts were in trover and sought to recover damages for the unlawful and wrongful conversion by the defendant to his own use of cotton, a. mule and some cattle.

Tried before the Hon. William S. Anderson. This action was brought by the appellees, Benton IT. Beverly and Henry L. Gaines, doing business under the firm name of Beverly & Gaines, against the appellants, A. M. Moses and Levi Anderson, doing business under the firm name of A. M. Moses & Company. The complaint as amended contained six counts.

Tided before the Hon. En. B. Almon. This action .was brought by the: appellant, James J. Freeman, by bis next friend,' against tlie appellee, the Sloss Sheffield Steel & Iron Company; aiid sought to recover damages for personal injuries.

Tried before the Hon. J. A. Bilbro. This action was brought by the appellants, O. G. Woodall and Henry Stephens, as executors of the will of Lafayette Derrick, deceased, against the appellees, J. P. McLendon and others, to recover certain costs adjudged against, the contestants of the will of Derrick in a proceeding in the probate court. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

Tried before the Hon. A. H. Alston. Tins action was brought by the appellant, Alva F. Bryant, who was the administrator of the estate of William T. Borough, deceased, against the appellee, the Southern Railway Company, to' recover $2,000 for the alleged negligent, killing of 'tlhei plaintiffs intestate. The complaint contained two counts.

Tried, before the Hon. A. H. Alston. This action was brought by the appellant, Charles H. Moore, against the appellee, the Nashville, Chattanooga & St. Louis Railway.

Tried before the Hon. John P. Hubbard. This action was brought by the appellant, J. R. Mills, against, the Abbeville Southern -Railway Company.

Clair. Tried before the Hon. John Pelham. The facts of the case are sufficiently stated in the opinion. cited Christian v. Mich-ael, 121 Ala. 84; Paden v. Ballinger, 87 Ala. 575; Burns v. Campbell, 71 Ala. 288. cited Truss v. Harvey, 120 Ala, 336; O’Heal v. Seixas, 85 Ala. 80; Pierce v. Jack-, son, 56 Ala. 599; Whitcshoffer v. Strauss, 83 'Ala. 517; Heflin v. Slay, 78 Ala. 180.

Tried before the Hon. John O. Carmichael. The appellant in this case, Edward M. Pace, filed a bill of complaint against the appellee, Edward A. ¡Smith, his former co-partner, asking for an accounting and settlement of the partnership affairs.

Tried before the lion. William S. Anderson. This suit was brought by the appellee against Annie C. Aarnes. The purpose of the suit and the facts of the case necessary to an understanding of the decision on the present appeal, are sufficiently stated in the opinion.

■ Appeal from tlie Chancery Court of Cullman. Heard before the Hon. William II. Simpson. The bill in this east1 was filed by the appellant against the appellee.

Arrean from tlie City Court of! Talladega, iu Equity. Tried before the: Hon. G. K. Miller. The .bill in this case was filed by the appellee, T. J. Mathews, against the. appellants, Kate Q. Roberts, Addie McOaa., «Josephine M. Keith and J. M. Hendricks.

Tried, before the Hon. B. C. Jones. - This was an action of assumpsit, brought by the Bessemer Savings Bank against the Rosenbaum Grocery Company, a partnership composed of Samuel I. Rosenbaum and Jacob Rosenbaum.

Heard before the Hon. John C. Carmichael. The bill in this ease was filed by the appellant against the appellee, Arma E. Boggan. The purpose of the bill and the facts of the ease necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

Appral from the Circuit Court of Jefferson. Tried before the Hon. A. A. Coleman. This action was brought by William M. Land against the mayor and aldermen of Birmingham. Demurrers to the original complaint were sustained by the court. Thereupon the plaintiff amended bis complaint by adding a third count thereto. In the amended complaint the plaintiff claimed of the defendant one thousand dollars damages.

Heard, before the Hon. William H. Simpson. The hill in this case was filed by the appellant, the Tradesmans National Bank, against, the Sheffield City Company, O'. B. Ashe, as receiver of the Sheffield City Company, R. H. Wilhoyte, Thomas L. Fossick, as trustees, and E. F. Enslen.

Jambs J. Mayfield. The appellant, Joseph Coyne, filed this bill of complaint in the Tuscaloosa county court against appellee, the Warrior Southern Railway Company, averring that the firm of Willard, Cornwell & Coyne, of which complainant was a member, acquired from the Tide Water Coal Company in 1900 certain rights to- quarry on the lands described in the hill of complaint.

Aureal front the Circuit Court of Jefferson. Tried before the 'Hon. A. A. Coleman. This Avas an action brought by the appellee, James Ellis, against the Alabama Great Southern Railroad Company, toi recover damages for personal injuries. The complaint contained five counts.

Heard before the Hon, A. D. Sayre. The hill in this case was filed by the Louisville & Nashville Nailroad Company- against the appellant, D. P. West.

Heard before the Hon. John' G. Carmichael. The bill in this case was filed by the appellants, H. T. Westbrook and J. B. Bates, against the appellee, John M. Hayes, to enforce the specific performance of a parol contract to convey forty acres of land particularly described in the bill. The respondent fileld an answer, and testimony for the complainant and respondent was taken, and the cause was submitted in term time for a decree in vacation.

Tried before the Hon. Osceola Kyle. This is an action for damages for the breach of a contract, brought in the. court below by the appellee, M. C. Camody, against “The Lewis Lumber Company, a firm composed of B. A. Lewis, et al., and B. A. Lewis, individually.” To this complaint the defendants demurred, and before that demurrer was passed upon by the court, and after the passing of several terms of the court., the plaintiff asked leave of the court to amend his complaint by…

Tried before the ITon. John C. Anderson, This action was brought by the appellants against the appellees. The- facts of itlhe case are sufficiently stated in the opinion. The plaintiffs separately excepted to the court’s refusal to> give at their request the general affirmative charge in their favor. They also excepted to the court’s giving at'the request of the defendants the general affirmative charge in their behalf. There were verdict.and judgment for the defendants.

Appeal ftom tile Circuit Court of Henry. . .Tried before the Hon. J. C. Richardson. This action was brought by the appellant,.Bank of Do-than, against J. E. Dawsey & Co., warehousemen. 'The complaint as amended contained three counts. The first count was withdrawn by the plaintiff. The second’ and third counts were as follows: “Count. No. 2.

Tried before the Hon. John C. Anderson. This was an action for money had and received, brought by the1' aippellan’t, Edna T. Bettis, a widow, against the appellee, S. J. MeNider, to recover the proceeds of five bales of cotton, the same being rent of lands assigned to plaintiff as dower, for the year in which the same was assigned to her and which rent accrued subsequent to the assignment.

Tried before the Hon. Peyton Nobvell. The bill in this case was filed by the appellee, Angelo Delvichio, against the appellant, J. H. Hendon.

Tried before the Hon. James A.-Bilbko. ■ This action was brought by the appellee, A.- J. Cody, against the-appellant, the- Nashville, Chattanooga & St. Louis Railway;-as a common ■ carrier. -The action was commenced in a justice of-the peace-court, and from a judgment by default against defendant an appeal was taken to the circuit- court. In the circuit court-a complaint was filed containing two counts.

Apbual from the. Circuit Court of Barbour. Tried before the 1-Ton. A. A. Evans.

Aitk-Uj from flip Circuit Court of Barbour. Tried before the 1-Ton. A. A. Evans. This was a statutory action of ejectment, brought by the appellee. John W. fcrew, against the appellants', Jerre Danner and Margaret Danner, to recover certain lands specifically described in the complaint. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

Tried before the Hon. A. H. Alston. This was a suit in which the appellee, J. C. Street, the plaintiff in the court below, sought to recover damages from the defendants for the' destruction, loss, damage and conversion of nine hales of cotton stored by the plaintiffs with the defendants, as warehousemen.

Tried before tlie Hon. Osceola Kyle. This was an action brought by the appellant, Mrs. P. P. Russell, against the Huntsville Railway, Light, & Power Company, 'to recover damages for killing a pug dog- This suit'was commenced before J. W. Wall; a notary public and cm oficio justice of the peace. From a judgment in favor of the plaintiff assessing lien* damages at ten dollars, an appeal- was taken to the circuit court.

. Appeal from the. City- Court of Birmingham, in Equity. ■ . . . , . . Heard before the Hqn. Charles A. Senn.The purpose-,of this bill and the fac-ts .averred therein are sufficiently stated in the opinion. Tbe defendant Wilson demurred to the bill .upon the following grounds;, 1. Because it affirmatively appears from the allegations of said bill that títere is no .overlap-page in the description of the land of complainant and tbe land of tliis defendant. 2.

.Heard before the Hon. A. -H. Alston. This wa,s a petition- filed by the appellee against the appellant and was addressed to the Jndge of the Seventh Judicial Circuit.

Am-tsal from the City Court of Bessemer. Tried before the Hon. B. C. Jones. This was a quo warranto proceeding and was instituted by the! State on the. relation of T. T. Huey et al. filing a petition addressed to the judge of the city court of Bessemer.

Apj'kal from the Circuit Court of Lee. Tried before the Hon. A. A. Evans. This action was brought by the: appellant, Mrs. M. C. McLain, against, W. W. Wright, and W. B. Gullatt and T. K. Whitman, who sued to recover. damages for the breach of an attachment bond. The complaint, as amended, contained two counts. Under the opinion on the present appeal it is only necessary to refer to the sev.md count.

Heard before the! Hon. A. D. Sayre. The bill in this case was filed by J. M. Dennis against the Mobile! & Montgomery Railway Company and the I ouisville & Nashville Railroad Company. Held: is subject to be taken for whatever public use the legislature may see fit to authorize. The power of the legislature in, this respect, is absolute, save that the taking must be for a public use and compensation must be made to the owner.

Heard before tbe Hon. B. C. Jones. This was a quo warranto proceeding, instituted by the State on the relation of T. T. Huey and others, tlie appellees, against the appellants.

Tried before the Hon. A. H. Alston. This suit was brought by the appellee, Sarah E. Noble, against G. Z. Adamson, the sheriff of Marshall county and the sureties on his official bond, to recover damages for the alleged breach of said bond by the de-, fendant Adamson, in wrongfully taking and carrying a.way under color of his office, from the plaintiff, the property of the plaintiff.

<p>Appeal from Order of Judge of Probate of Tuscaloosa County.</p> <p>Heard before the Hon. James C. Brown.</p>

<p>Appeal from Walker Law and Equity Court.</p> <p>Tried before the PTon. Peyton Norvelle.,</p>

<p>Appeal from the Chancery Court of Walker.</p> <p>Heard before the Hon. John C. Carmichael.</p>

<p>Appeal from Circuit Court of Morgan.</p> <p>Tried before the Hon. A. ID Alston.</p>

<p>Appeal from the City Court of Montgomery.</p> <p>Tried before the Hon. William H. Thomas.</p>

<p>Appeal from .the City Court of Montgomery.</p> <p>Tried before-the Hón:-A:' Db• Sayre.</p>

<p>Appeal from Order of Judge of Probate of Autauga County. ■ ' • ■ •</p> <p>Heard' before the Hon.' George -S. Livingston.</p>

<p>Appeal from the County Court of Elmore.</p> <p>Tried before the Hon. F. Lloyd Tate, Special Judge.</p>