Volume 35 — Alabama Reports

' Tried before the Hon. C. W. Rapier. This action was brought ‘by Edward R. Thorp, against Mrs. Hannah Sughi, to recover the sum of $150, alleged to be due from the defendant for the rent of a house in the city of Mobile, from the 1st November, 1857, to the 1st February, 1858; and the name of Charles Brewer was afterwards, added as a defendant.

In tlie matter of tlio last will and testament of Ephraim Pool, deceased, which was propounded for probate by George L. Stewart, the executor therein named, and contested by the decedent’s heirs-at-law and distributees.

In the matter of the last will and testament of Mrs. Martha Miuk, -deceased, which was propounded for probate by James Seale, and contested by William H. Chambliss. The proponent was the executor and sole legatee under tbe will. The'validity of the will was contested on the grounds of mental incapacity, fraud, undue influence, and insufficiency of execution and attestation.

Wade Keyes. The bill in this case was filed by Cullen Mims, against Stanford Mims and the heirs-at-law of John J. Sessions, deceased ; and sought to foreclose a mortgage on a tract of land.

Tried before the Hon. C. W. Rapier. This action was brought by Hugh T. Fountain, against John Hailey, to recover damages for the defendant’s wrongful act, in forcibly breaking and entering the plaintiff’s close, and removing and carrying away his fence. The only plea was the general issue.

Tried before the Hon. Nat. Cook. This action was-brought by William H. Chambliss, as the administrator of James McNeill, deceased, against Mrs. Ann McNeill, to recover several slaves, together with damages for their detention ; and was commenced on the 16th January, 1858. The plaintiff's intestate was a son of the defendant, and died in August, 1857.

<p>[action by railroad company against defaulting subscriber.]</p> <p>1. Construction of contract of subscription io railroad company. — Where the contract of subscription to a railroad company, after specifying that the shares were “ to be paid to said company, or its proper officers, upon assessment and call, unless paid in work, &c., as hereinafter named,” contained the following stipulations, to-wit: “ Provided, however, that each subscriber may pay such per cent, of his subscription as he specifies below, by taking and performing a contract or contracts to that extent for the grading, earth-work, preparation and completion of the road bod ready for the iron, (bridging excepted,) by bidding off the same at public letting, and performing accordingly ; or, if he shall not bid off the same at public letting, then by taking such and so much at’private lotting, of any portion not otherwise or before let, as shall be wanting to make up the amount, at the estimate of the engineer making the estimates ; the work to be executed, in either case, under the direction, and in conformity with the specifications of the chief or resident engineer, as is customary in railroad contracts ; and the com»pany will arrange, so far as they can consistently with the provisions aforesaid, that subscribers may, where the road runs on or across their lands, be accommodated with working upon their own premises respectively,” — held, in an action by¡the corporation against a defaulting subscriber, whose shares were specified to be taken “ all in work”—</p> <p>[1.] That the contract secured to the defendant the right of election to pay his subscription in work, either by bidding off a contract for work at public letting, or, in the event of his failure to bid off a contract at public letting, then by taking a contract at private letting, for any portion of the work not otherwise or before let, at the estimate of the company’s engineer ; and that the company could not maintain an action against him, to recover the amount of his subscription in money, until an opportunity had been afforded him to make such election.</p> <p>[2.] That this right of election on the part of the defendant did not extend to the entire route of the road.</p> <p>[3.] That if the defendant failed, when an opportunity was afforded him by the company, to take a contract at public letting, it was his duty to notify the company of liis election to take a contract at private letting; and that, on his failure to give this notice within a reasonable time, his obligation to pay in money became absolute.</p> <p>[4.] That notice of the assessments and calls, not being required by the charter of the corporation, was not indispensable to the right of action on subscriptions.</p> <p>[5.] That the defendant, having Wntractod with the company while acting under the name given by its amended charter, and in that name, could not be heard to insist that there had been no valid acceptance of the amended charter.</p> <p>[6.] That a letting of contracts by tbe company, in pursuance of a notice published in a newspaper, inviting proposals for bids, was a “public letting’’ within the meaning of the contract. (A. J. Walkek, C. J., dissenting, held that the contract required the lettings to be by public auction.)</p> <p>[7.] That it was not incumbent on the corporation to give the defendant actual notice of the contemplated lettings, but only to give public notice as usual in such cases.</p> <p>[8.] That a subsequent change in the location of the road, which had not been definitely located when the defendant subscribed, did not release him from his contract.</p>

Heard-before the Hon. James B. Clark. The bill in this case was filed on the 9th February, 1858, by Mrs. Harriet C. Fleming, a married woman, suing by her next friend, against her husband, William H. Fleming, their several children, John McKenzie, as executor of Henry C. Spencer, deceased, and Thomas M. Gilmer and wife.

Heard before the Hon. James B. Clark. The bill in this case was filed by Jeremiah Duckworth and Alfred Berry, against John C. Grayson, as the administrator of Randall Duckworth, jr., deceased; and sought to enjoin a decree of the probate court of Dallas, which had been reudered against the complainants, on the final settlement of their accounts as executors of Randall Duckworth, sr., in favor of said Grayson, for his intestate’s distributive share of said estate.

Heard before the Hon. James B. Clark. This bill was filed by Amos Moore, against William G. Smith and Thomas IP. Smith, for the purpose of subjecting to the satisfaction of a promissory note, held by the complainant on said William G. Smith, certain money and property in the hands of Thomas H. Smith, as trustee of William G. Smith.

Tried before the Hon. John Gill Shorter. This action was brought by the appellants, as tbe surviving partners of tbe. late firm of Rupert, McLellan & Co., against ’William L. Elston and Samuel II. Dixon; and was founded on a promissory note, of which the following is a copy: “ 08,500.

Heard before the Hon. Wade Keyes. The bill in this case, was filed by John R. Siler, as the administrator of his deceased wife, Mrs. Sarah J. Siler, • formerly Sarah J. Smilie, against Stephen D. Smilie, Edwin R. Smilie, and Hiram A. Smilie, brothers of said Sarah J.; and sought a discovery and account of the assets belonging to the estate of complainant’s intestate.

Tried before the Hon. Nat. Cook. This action was brought by William J. Garrett, Caswell Garrett, and Charity Garrett, wife of the said Caswell, against Joseph M. Miller, W. R. R. Wyatt, B. E. Davis, and Eranklin Burbridge, and was founded on a detinue bond, which was in the following words : “Know all men, by these presents, that we, Joseph M. Miller, and W. R. R. Wyatt, B. E. Davis, and E. Bur-bridge, are held and firmly bound unto Charity Garrett, Caswell Garrett and…

Tried before the Hon. Robert Douohertv. This action was brought by John L. Patterson, against Kenton Cook, to recover damages for the conversion of a mule; and was commenced on the 11th December, 1856.

In the matter of the final settlement and distribution of the estate of Mrs. Lavinia Adams, deceased, by A. M. Simmons, her administrator.

Tried before the Hon. A. A. Coleman. This action was brought by the administrator of Peter Donaldson, deceased, against the administrator of John C. Waters, deceased, to recover the sum of $5,000,… Held: that assumpsit lies to recover back money paid under a parol purchase of land, the contract being void by the statute of frauds.

Tried before the Hon. Robt. Dougherty. This action was brought by Allen Bates, against Edward M. Herron, to recover a tract of land in Barbour county, described in the complaint as “the south half of the south-east quarter of section 'twenty-eight, and the north half of the north-east quarter of section thirty-three, in township ten north, of range twenty-four east, in the district of lands subject to sale at Elba,” together with damages for its detention.

Tried before the Hon. Nat. Cook. This action was brought by tbe appellee, against William Harper, and was founded on the defendant’s promissory note for ¡$500, dated the 26th January, 1856, payable on the let January next after date, to William F. Davis or hearer, and transferred by said Davis to the plaintiff.

Heard before the Hon. John Poster. The bill in this ease was filed by George B. Turney, as the administrator of Daniel Turney, deceased, against Hugh D. Morrow, for the purpose of foreclosing an equitable mortgage on slaves.

Tried before the Hon. Nat. Cook. This action was brought by S. J. Peavey, a non-resident, against John Burket, and was founded on a promissory note. At the trial term, the defendant moved to dismiss the suit, on the ground that the plaintiff had not complied with the statute requiring non-residents, before commencing suit, to give security for the costs.

Nat. Cook presiding, to compel tbe dismissal of a suit therein pending, wherein Chamberlain, Miller & Co. were plaintiffs, and Nathan E. Camp, the petitioner, was defendant.

Tried before the Hon. S. D. Hale. This action was brought by Larkin B>. Gunu, against Isaac Howell, to recover the proceeds of .certain promissory notes, amounting to about $2,500, which the plaintiff had placed in the defendant’s hands for collection ; and was commenced on the 3d March, 1848. The declaration contained the common money counts, and a special count on the contract.

C. W. Rapier. In this case, on the 2d February, 1858, William R. Haliett filed his written petition in said court, verified by his own affidavit before the clerk, stating that, some time in 1852, an action of ejectment was brought in said court on his demise, as the executor of Joshua Kennedy, deceased, against Origen Sibley and others, tenants in possession ; that said action was instituted at the instance of John H. Hastie and John G. Aiken, who had each married a daughter…

Tried before the Hon. Nat. Cook. This action was brought by Memory Allen and Elizabeth, his wife, against John B. Prater, James Prater, and Andrew J. Prater ; and was founded on the defendants’ wbrbal promise to pay $1,000, in consideration that plaintiffs and one Susan Miller would not contest the probate of 'the will of John Prater, deceased, (who was the father of Mrs. Prater, Mrs. Miller, and the defendants,) but would allow the same to he admitted to probate without…

Tried before the ITon. E. W. Pettus. This action was brought by Philip J. Weaver, against the appellee, (a corporation chartered by the legislature of this State,) as the owner of the steamboat Isabella, to recover damages for injuries and losses caused by a collision on the Alabama river, in June, 1855, between said steamboat and a flat-boat on which plaintiff had shipped certain bales of cotton at Selma, consigned to B. E. Marshall in Mobile.

Tried before the Hon. Nat. Cook. This action was brought by Matthew Troy, against John A. Bell, and, on the defendant’s death pending the suit, was revived against his administrator.

Tried before the lion. E. W. Pettus. ' This action was brought by John W. Kidd, against the appellant, to recover damages for the defendant’s failure to deliver eight bales of cotton, which the plaintiff shipped at Montevallo, to be forwarded to Selma. The complaint contained several counts in case for negligence, and one count in trover. No pleas appear in the record.

Tried before the Hon. Nat. Cook. This action was brought by Stephen B. Barker, against F. P. Coleman, to recover damages for a breach of warranty of the soundness of a slave named Iienry, who was sold by the defendant to the plaintiff, in November,'1857, at the price of $1,000.

Heard before the Hon. John Foster. The bill in this case was filed by the appellant, on the 19th November, 1856, to obtain a decree of divoi’ce from his wife, on the ground that she was, at the time of the marriage, physically and incurably incapacitated from entering into the marriage state. The defendant answered the bill, and denied all its allegations, except as to the fact and date of the marriage.

Tried before the Hon. Nat. Cook. This action was brought by Anselm L. Haden and Caroline M., bis wife, as administrator and administratrix of… Held: had used and enjoyed the ferry for more than twenty years before the date of the lease read in evidence, without interruption, and had charged tolls to persons crossing at said ferry during that time, then the commissioners’ court had no power or authority to grant a ferry license to Nance; and if they should believe that the…

The facts of this case, as disclosed by the bill, are these: Calvin C. Sellers died in Wilcox county, Alabama, on the 19th March, 1852, after having made bis nuncupative will, which was duly admitted to probate on the 4th April, 1852, as follows: “I am not much in debt — I owe but little; but I want my debts all paid.

Tried before the Hon. Nat. Cooic. This action was brought by John D. Park, against the executors of Henry V. Wooten, deceased; and was founded on an open account for $571 15, for goods sold and delivered by plaintiff, on the 18th June, 1855, to the firm of W. B. Wright & Cq., and an acceptance for $134 93, of the same date, which was given by the said firm for goods previously sold and delivered to them by plaintiff; the complaint alleging that the defendants’ testator was a…

Tried before the Hon. Alex. McKjnstby. This action was brought by Alexander Durwood, against William Sayre and Henry Eullilove, “ to recover the sum of $800,” as the complaint alleged, “ upon a contract with them for his services, to be rendered as clerk, during the season of 1854-5, from about tbe 20th November in the year 1854, to about the 1st June in the year 1855, in the grocery-store of the defendants in the city of Mobile, — which services the plaintiff was ready and…

Tried before the Hon. S. D. Hale. This action was brought by Edward Johnson, against Burrell Blackman and James Blackman ; was founded on the defendants’ bill of exchange for $200, dated the 13th August, 1850, and payable at sight, to the plaintiff’s order ; and was commenced on the 6th September, 1850. The defendants pleaded the general issue, in short by consent, with leave to give any special matter in evidence.

<p>[ejectment under code, against husband and -WIFE.]</p> <p>1. Form of complaint in statement of parlies, and presumption in favor of judgment. In ejectment against husband and wife, (Code, § 2131,) the marginal statement in the complaint of the names of tho parties, showing that the defendants are sued as husband and wife, is equivalent to an averment that the wife has an interest in the defense of the action, or in the lands sued for ; and after judgment on verdict against the defendants without objection or exception on their part, the appellate court will presume that the wife had an interest in the subject-matter of the suit, and that she was proporly joined as a defendant.</p>

Tried before the Hon. ¥m. S. Mudd. This action was brought by John D. Higgason, against John C. Helvenstein, and was founded on a written instrument, signed by tbe defendant, which was in the following words: “Between this and the first day of March next, I promise to pay John D. Higgason the sum of $1,600, for value received; the condition of which is three forty-acre blocks of land, known as the N. E. fourth of S. E. fourth of section three, and the N. E. fourth of the N.…

Tried before the Hon. Wm. S. Mudd. This action was brought by Adolph Brunn, against Benjamin West, and was founded on an open account for goods, wares and merchandise sold and delivered, amounting to $267,26. “On the trial,” as the bill of exceptions recites, “ the plaintiff offered himself as a witness, under section 2313 of the Code of Alabama, to prove the correctness of the demand sued on, (having first proved legal notice,) and testified under oath, that he sold and…

Tried before the Hon. O. W. Rapier. This action was brought by Horatio N. Gould, against Thomas Buford, to recover damages for a breach of warranty of the soundness of a slave, named Sarah, sold by defendant to plaintiff on the 31st August, 1857.

Heard before the Hon. Wade Keyes. The bill in this case was filed by the executor of Mrs. Martha Bryant, deceased, against Joseph Boothe and others, for the purpose of obtaining the rescission of a contract for the purchase of a trace of land, on account of the -vendor’s fraudulent concealment of a defect in the title.

Tried before the Hon. B.obt. Douhherty. This action was brought by James J. Xirkman, as the assignee of Charles Goolcin, against Emerson H. Eaton and Henry 0. Wood; and was founded on the defendants'’ promissory note for $267, dated November 4, 1856, and payable five days after date, to Charles Gookin, or order, by -whom it was assigned, without recourse, to the plaintiff.

Tried before the Hon. Nat. Cook. This action was brought by William H. Hatcher, individually and as administrator of Mrs. Anne E. Hatcher, deceased, and James A. Hatcher, an infant, who sued by said William H. Hatcher as his next friend, against Allen Clifton, to recover damages for the conversion of several slaves, whom the plaintiffs claimed under a deed of gift from James E. Hatcher, deceased, while the defendant derived title under a purchase, at public sale, from the…

Heard before the Hon. Wade Keyes. The bill in this case was filed, on the 28th August, 1866, by Robert L. Mayes, as the administrator of Mrs. Teresa Ansley, deceased, against O. P. King, as the administrator of Jeremiah Smith, deceased, for the purpose of correcting several errors in the decree of the probate court on the final settlement and distribution of said Smith’s estate; and was afterwards revived against King’s administrator.

Heard before the Hon. John Poster. The bill in this case was filed by James B. M. Landers and Emlay Russell, against William Curry and the commissioner of the State Bank and Branches, for the purpose of enjoining the sale of a certain tract of land under execution. The land in controversy was conveyed by an Indian reservee, in August, 1836, to Gideon Riddle and James Hall, who, in March, 1840, conveyed the same to one Powell, as trustee, to secure a debt due to one John Neal.

Heard before the Hon. Wade Keyes. The bill in this case was filed by Mrs. Sarah Ann Rainey, suing by her next friend and brother, John J. Olds, against William W. Rainey, her husband; and sought to remove her said husband from the custody and management'of her separate estate, and to enjoin an action at law which he had instituted against said Olds, to recover damages for an alleged conversion of slaves belonging to the complainant’s separate estate.

Heard before the Hon. Wade Keyes. The bill in this case was filed by John McLauchlin, against Burwell B. Boykin, Charles S. Holland, Hiley Powell, and Holden Preslar, to enforce against Holland the specifiic execution of a contract, by which the complainant purchased from Powell, as the agent of Holland, a tract of land which Boykin also claimed to have purchased from Holland.

Heard before the Hon. Wade ICeyes. The bill in this case was filed by Mrs. Frances L. Bryan, suing by her next friend, and sought to have her husband removed from the trusteeship of her separate estate. The defendant answered the bill, and denied all its allegations as to his unfitness and incapacity to discharge the duties of the trust. The substance of the evidence, which is too voluminous to be given in detail, is stated in the opinion of the court.

Tried before the lion. John Gill Shorter. This action was brought by Alexander J. Robinson, against Stephen M. Ingersoll, and was founded on the defendant’s promissory note for $1061 61, dated the 16th May, 1857, and payable on the 1st January next after date.

In the matter of the partial settlement and distribution of the estate of Joseph Krebs, deceased, whose last will and testament contained the following provisions: “I desire to make a provision for each of my children, which shall be just and nearly equal. They are five in number, to-wit, Sidoine, Mrs. Humphries, wife of II. D. Humphries, Lewis Dixon, Florida, and Rene.

In the matter of the final setlement and distribution of the estate of John Semoice, deceased.

Heard before the Hon. James B. Clark. The bill in this ease was filed by John W. McRae, as the administrator of the respective estates of James Hen derson, deceased, Mary Shifiett, (formerly Mary Henderson,) deceased, and Judy Shifiett, (formerly Judy Henderson,) deceased, together with Erancis Henderson, R. Strother Henderson, Pickett Shifiett in right of his wife Sarah, and Sarah Shifiett, (formerly Sarah Henderson,) against William Singleton, botli individually and as one…

In the matter of the final settlement and distribution of the estate of Asa T. Morgan, deceased, by James T. Colley, his administrator.

Heard before the Hon. Wade Keyes. The hill in this case was filed by John G. Winter, against J. M. N. B. Nix, J. T. Nix, Henry O. Semple, and William M. Boling, for the purpose of subjecting to the satisfaction of a judgment against said J. T. Nix, which the complainant claimed to own, certain city lots in Mont, gomery, which said J. M. N. B. Nix had purchased from said William M. Boling, and for which he held said Boling’s bond for title, which he had transferred' to J. T.…

Tried before the Hon. Alex. MoKinstry, This action was brought by Major Cook, against Thomas M. Buffington, to recover one-half the amount paid by the plaintiff, under execution, on a judgment rendered against him and the defendant jointly, in favor of one E. P. Chappell.

Tried before the Hon. Robert Dougherty. This action was brought by Rhodicy Bryaut, against Needham Bryant, and was founded on the defendant’s promissory note for $800, dated tbe 27th August, 1853, and payable by the 25th December next after date, to the plaintiff. No picas appear in the record.

Tried before the Hon. O. W. Rapier. Tins action was brought by Louis Fenouille, against Thomas A. Hamilton, to recover a promissory note for $400, made by Francis and Elizabeth Fenouille, dated the 8th July, 1857, and payable one year after date, to the order of the plaintiff.

Tried before the Hon. Nat. Cook. This action was brought by the appellee, a domestic corporation, against William Waddill, and was founded on a bill of exchange for $1,000, drawn by the defendant on one Abner Jones, dated the 5th March, 1853, payable on the 1st January,1854, to William E. Byrd,and endorsed by said Byrd, D. Fair, and Geo. P. Blevins; the common money counts being also added in the complaint.

In the matter of the final settlement of the estate of John C. Holcombe, deceased, which was duly declared insolvent on the 2d April, 1855, and against which the appellant hied as a claim an account for $753 51. The rejection of this claim is Ihe only matter assigned as error. The ground on which the opinion of this court is based, renders it unnecessary to state the evidence contained in the bill of exceptions.

Tried before the Hon. John Gill Shorter. This action was brought by J. McCaleb Wiley, against James Glawson, to recover damages for a breach of warranty of the soundness of a slave, named Phyllis, sold by defendant to plaintifi on the 18th February, 1856. The cause was tried on issue joined, but the record does not show what pleas were filed.

In this case, on the 13th December, 1858, William Mc-Elrath moved the probate court to supply certain lost papers, alleged to belong to the records of the former orphans’ court of said county ; which motion was resisted by Randolph Taylor, the appellant.

Heard before the Hon. Wade Keyes. Tiie bill in this case was filed, on the 15th May, 1856, by ITowell Threadgill, against Martin M. Crews ; and sought to have a deed for a tract of land, which was absolute in form, declared and established as a mortgage, and for a redemption and account under it.

Tried before the Hon. C. W. Rapier. This action was brought by Joseph C. Crosby, George N. Stewart, and William C. Easton, against James H. Daughdrill. The only plea was the general issue.

The record does not show the came of the presiding judge. This action was brought by John II. Seay, against Wilson Collins and G-iles O. Efurd, and was founded on the defendants’ promissory note for $1,933 33, dated the 4th December, 1858, and payable on the 1st March, 1858, to T. 0. Milsap, by whom it was endorsed to the plaintiff.

Tried before the Hon. Alex. McKinstry. This action was brought by David L. Campbell, against Hazael Warfield, io recover damages for the plaintiff's arrest and imprisonment under a writ of capias ad satisfaciendum, alleged to have been sued out by the defendant maliciously and without probable cause, on a judgment in favor of Mary J. Witherspoon against said plaintiff. The only plea was the general issue.

Tried before the Hon. A. A. Coleman. The indictment in this ease was in the form prescribed by tbe Code, aud charged the defendant, in a single count, with selling vinous or spirituous liquors without a license.

From the Circuit Court of Montgomery. Tried before the Hon. John Gill Shorter.

From tlie Circuit Court of Russell. Tried before the Hon. Nat. Cook.

From the Circuit Court of Montgomery. Tried before tbe Hon. John Gill Shorter.

Tried before the Hon. Nat. Cook. The indictment in this case charged, that the prisoner, “ Lewis, a slave, the property of Henry Harless,attempted to commit a rape on Mary C. Ozley, a white female and was found at the spring term, 1857, of the circuit court of Shelby. The venue was changed, on the prisoner’s application, to Talladega county, where the trial was had, at the fall term, 1859, on the plea of not guilty.

From the Circuit Court of Bibb. Tried before the Hon. Porter King.

From the Cii’cuit Court of Autauga. Tried before the Hon. Porter King.

Erom the Circuit Court of Barbour. Tried before the Hou. S. D. Hale.

From the Circuit Court of Autauga. Tried before the Hon. Porter Kins. The prisoner in this case, James Aikin, was indicted in the circuit court of Lowndes county, at its fall term, 1858, for the murder of one Michael Ilibbots.

From the Circuit Court of Shelby. Tried before the Hon. John E. Moore. The prisoner in this case, Walter Barrett, was indicted in the circuit court of Bibb county, at its fall term, 1854, for tlie murder of Jesse Langford. At the March term, 1856, the case was removed on the prisoner’s application, to Shelby county, where be was finally tried at the September term, 1859, and convicted.

From the Circuit Court of Bibb. Tried before the Hon. Porter King.

Prom the Circuit Court of Marengo. Tried before the Hon. A. A. Coleman. The indictment in this case charged, “that Levi Pike exhibited feats of sleight of hand, without first obtaining a license therefor, and contrary to law.” After conviction, the prisoner moved in arrest of judgment, “ on the ground that the indictment is defective in not showing that the feats of sleight of hand were exhibited for profit.” The court overruled the motion, and the prisoner excepted.

From the Circuit Court of Perry. Tried before the Hon. Porter King.

Erom the Circuit Court of Monroe. Tried before the Hon. C. ~W. Napier. The indictment in this case was in the general form allowed by the Code.

Tried before the Hon. Nat. Cook. At the November term, 1857, of the circuit court of Talladega, on change of venue from the circuit court of Bandolph, in the case of The State v. Thomas Foley, (which was an indictment for perjury,) a judgment was rendered in the following words: “ On this 19th day of November, 1857, came the State, by its solicitor, and the defendant in his own proper person, and for plea says that he is not guilty; and thereupon came a jury of good and…

Tried before the Hon. Porter King. Teis action was brought by the administrator of Jeremiah Drinkard, deceased, against Andrew D. Ross; and was founded on two bills of exchange, each for $260, drawn… Held: that it did; but, as the consideration was clearly proved by the holder, no question could arise as to the burden of proof.

. Appeal from the Probate Court of Greene. In the matter of the estate of Samuel Pickens, deceased, on the annual settlement of the accounts and vouchers of Mrs. Mary G. Pickens, the administratrix.

Tried before the Hon. John E. Moore. This action was brought by the appellants, against Beverly N. Wilkinson, to recover a certain parcel of land in the city of Montgomery, which the plaintiffs claimed as the heirs-at-law of Mrs. Jane A. E. McBryde, deceased, and to which the defendant derived title under a deed from one Homer Blackman, who claimed under a deed from Mrs. McBryde and her husband.

Tried before the Hon. Wm. M. Brooks. Tttts action was brought by James M. Brainard, against the Alabama Coal Mining Company, a domestic corporation ; and the complaint was in the following words: “ The plaintiff claims of the defendant $2,200, due on a bill of exchange, which was drawn by one R. Swan, on the 16th November, 1857, for $2,200, upon the defendant, by the name and style of “ Steamer Q. W. Dorrance and owners,’ (the said defendant being then and there the owner of…

Tried before the lion. Alex. McKinstry. The appellee in this case, having obtained a judgment, as the executor of Hugh Masterson, deceased, against C. W. Bostwick, on the 9th November, 1854, for $830 50, and having sued out an execution thereon, which was returned “ no property found,” made the statutory affidavit for process of garnishment, and had the appellant summoned as the debtor of said Bostwick.

Tried before the lion. Nat. Cook. Ttttr action was brought by Leontine Sawyer and Martha B., his wife, against Henry B. Boynton, and was commenced on the 81st March, 1858.

Tried before the Hon. Porter, King. The complaint in this case was in the following words: “ David H. Williams, who, as guardian for, and as such sues for the use of, William B. Hutton, Aquila D. Hutton, Aurelius W. Hutton, and Emmet C. Hutton, minors, under the age of twenty-one years, and Eugenia E. Williams, who sues in her own right, claim oí the defendant, John N. Hutton, two hundred and fifty dollars as damages, under the following circumstances : Aquila D. Hutton died…

In tbe matter of tbe final settlement and distribution of the estate of Sarab M. Copeland, deceased, by Nathan W. Copeland, her administrator.

Heard before the Hon. Wade Keyes. The bill in this case was filed on the 13th June, 1857, by Alex. B. Meek and Emma D., Ms wife, (formerly Emma I). Slatter,) against the administrator and heirs-at-law of Hope II.

Tried before the Hon. Nat. Cook. The original complaint in this ease was as follows : “John Morrell h The plaintiff claims of tbe vs. V defendant tbe sum of one thou-¥m. H. Quarles.

In the matter of the estate of James 0. Williams, deceased, which was duly declared insolvent on the 2d January, 1856, and against which the appellant filed a claim on the 14th January, 1856, verified by affidavit before a justice of the peace on the 23d June, 1854, and presented to the administrator on the 22d November, 1855, which was within eighteen months after the grant of letters of administration.

Tried before the Hon. Nat. Cook. This action was brought by James L. Evans and Thomas Gr. Portis, as administrators de bonis non of Mrs. Ellen’Ohápman,'deceased, against Janies Hall, to recover a slave'named Scott,'together with damages for his detention ; and was commenced on the 19th December, 1856. No pleas appear in'the record.

Heard before the Hon. James B. Clark. The bill in this case was filed on the 14th September, 1857, by Betsey Martin, against Mary Martin, both individually… Held: that the dissent was sufficiently manifested by filing a petition for dower within the twelve months. In Martin v. Martin, (22 Ala. 86,) the petition was filed before the probate of the will. The case of Turner v. Cole, (24 Ala; 364,) is based on the former decisions, without argument or authority to sustain it.

Tried before the Hon. Nat. Cook. The appellant in this case, as the administrator of William H. Purcell, deceased, having obtained a judgment against James E. Leslie, at the spring term, 1857, of the said circuit court of Lowndes, afterwards sued out process of garnishment thereon, and summoned James G. Gilchrist as the debtor of said Leslie.

In the matter of the estate of William S. Sharp, deceased, which was declared insolvent in December, 1854, on the report of Arnold Seale and Jehu Sharp, the executors of his last will and testament; and said Arnold Seale thereupon appointed administrator by the court.

Heard before the Hon. Wade Reyes. The bill in this case was filed, on the 7th February, 1859, by Asa T. Miller, against Wilson M. Bates and Isham C. Browder. Its object was to obtain equitable relief against certain alleged usurious transactions between said Miller and Bates ; and to that end an account was prayed, and an injunction to restrain the sale of the complainant’s property, under a mortgage given by him to secure the payment of the alleged usurious claims.

Tins proceeding in this case was instituted by Samuel G. McLaughlin, who, on the 15th March, 1858, as the executor of the last will and testament of John McLaughlin, deceased, filed his petition in said probate court, asking an order to sell the real estate for the purpose of making equal division among the devisees.

In the matter of the application of Mrs. Sarah Forrester for an allotment of her dower in the real estate of her deceased husband, William Forrester. The petition was filed on the 1st October, 1859, and alleged, among other things, that the petitioner resided in Georgia.

Tried before the IIou. Nat. Cook. This action was brought by Lucinda Brown, against Edward Dwine, and was commenced on the 10th November, 1852.

Heard before the Hon. Wade Keyes. The bill in this case was filed by Louisa Brooks, Ransley Brooks, Nancy Brooks, Austin Brooks, Eunice Jones, Edmund K. Jones, Evaline Hall, Sylvester Pond, Julius R. Pond, Mary H. Pond, Laura Pond, Lewis Pond, and Charles Pond, (the seven last named being minors, who sued by their next friend, H. A. Seelye,) against J. A. Biaz and Thomas Williamson, partners in business under the name and style of Biaz & Co.;, and sought to restrain the…

<p>Apx3eal from the Circuit Court of Madison.</p> <p>Tried before the Hon. 8. D. Hale.</p> <p>Txie first count of tbe complaint in this case (Joseph Ward vs. George W. Neal) was in tbe following words: “The plaintiff claims of the defendant one thousand dollars damages, for that whereas, the said Joseph Ward, before and at the time of the committing of the grievances hereinafter mentioned, was, and from thence hitherto has been, and still is, lawfully possessed of a certain dwelling-house, with tbe appurtenances, situate and being in tbe town of Huntsville in said county; in which said dwelling-house, during all the time aforesaid, there were, and still of right ought to be, divers (to-wit, four) ancient windows, through which tbe light and air, during all the time aforesaid, ought to have entered, and still of right ought to enter into said dwelling-house, for tbe convenient use, occupation and enjoyment thereof: Yet the said George W. Neal, well knowing the premises, but contriving and wrongfully and unjustly intending to injure plaintiff, and to deprive him of the use, benefit and enjoyment of the said windows, and to annoy and incommode him in the use, possession and enjoyment of the said dwelling-house, with the appurtenances, heretofore, to-wit, on the — day of —, 1856, wrongfully and injuriously erected and raised, and caused and procured to be erected and raised, a certain fence near to the said windows, and wrongfully and injuriously kept and continued the said fence, so erected and raised, for a long space of time, to-wit, from the day and year aforesaid hitherto; by means of which premises, the said dwelling-house, with the appurtenances, during all the time aforesaid, was, and still is, greatly disturbed, and the light and air hindered and prevented from coming and entering, into and through the said windows, into the said dwelling-house, and the same hath thereby been rendered and is close, uncomfortable, and greatly impaired in value; and the plaintiff hath thereby been, and still is, greatly annoyed and'incommoded in the use, possession and enjoyment of his said dwelling-house and appurtenances; to plaintiff’s damage one thousand dollars.”</p> <p>The second count requires no particular notice. The defendant demurred to the complaint, “ in short by consent,” on the following grounds: “ 1st, that said complaint does not show that defendant entered or committed any trespass upon plaintiff’s premises; 2d, that it does not show any wrong done to the plaintiff’s premises; 3d, that it does not show any cause of action in the plaintiff; and, 4th, that it shows no injury done to the plaintiff’s property.” The circuit court sustained the demurrer, and its ruling is now assigned as error.</p> <p>1. That the complaint shows a good cause of action, and is in proper form, see 1 Chitty’s Pleadings, m. p. 367; 2 ib. 379-80, and cases cited in notes ; 3 Term R. 159; 6 East, 215 ; 4 Esp. 70.</p> <p>2. That adverse possession of an easement, for the period prescribed as a bar to real actions, gives a right, for the disturbance of which an action lies, is a principle well settled in England. — Lewis v. Price, 2 Win. Saunders, 175; Dougal v. Wilson, 2 ib. 175; Campbell v. Wilson, 3 East, 294; Bealey v. Shaw, 6 East, 208 ; Daniel v. North, 11 East, 372 ; 1 Camp. 463; 4 Barn. & Aid. 578 ; 2 Barn. & Cr. 686; 2 Brod. & Bing. 667; 4 Burr. 1962. In the United States, this rule has been frequently recognized and affirmed, though there has been some difference of opinion, in its application to air and lights, as to what was necessary to constitute an adverse enjoyment. 3 Kent’s Com. 443; Augell on Adverse Possession, 92; 19 Wendell, 309; 5 Rich. 312. That the English rule has been adopted in Alabama, see Ray v. Lynes, 10 Ala. 66 ; Stein v. Burden. 24 Ala. 148.</p> <p>3. But the complaint in this case, the allegations of which are admitted by the demurrer, does not necessarily raise the question of adverse enjoyment, since the easement might be founded on grant or covenant.</p> <p>4. Whether a possession is adverse, is a question of fact, to be determined by the jury under the charge of the court. — 2 Wm. Saunders, 175; 3 East, 294; 2 Brod. & Bing. 667; Angelí, 44-5.</p> <p>1. The averment that the windows were ancient, is equivalent to an assertion that the plaintiff’s right to preserve them unobstructed depended, not on grant, covenant or agreement, but on the length of time he had used and enjoyed them. — Pen-warden v. Ching, 22 Eng. Com. Law, 340. The question presented, therefore, is, whether an action lies for the erection of a fence, whereby light and air are obstructed, no trespass being alleged. That such action does not lie, unless the lights were ancient, or acquired by grant, was expressly decided in Mahan v. Brown, 13 Wendell, 261.</p> <p>2. The English doctrine, that the notorious and uninterrupted use of windows, for the period of time prescribed by the statute of limitations as a bar to actions for the recovery of lands, raises the presumption of a grant, covenant or agreement, under which they were opened, and, unless the presumption is contradicted, is sufficient evidence upon which to base an action for their obstruction, does not prevail in this country. — Pierre v. Fernald, 26 Maine, 436; Parker v. Foote, 19 Wendell, 309; Myers v. Gemmel, 10 Barbour, 537; Napier v. Bulwinkle, 5 Rich. L. 311; Cherry v. Stein, 11 Md. 21; Ingraham v. Hutchinson, 2 Conn. 597.</p>

Tried before the lion. E. W. Pettus. This action was brought by John D. Gatlin, against John M. Strong, “to recover $75, due by account on the 10th January, 1852, for work and labor done and materials furnished by plaintiff to defendant, at the defendant’s request and was commenced on the 24th March, 1857.

Heard before the Hon. Wade Keyes. The bill in this case was filed by Benjamin F. Pearson, against John W. Seay, Francis M. Mosely, and Mary Ann Mosely, his wife, and alleged the following facts: 1. “ On or about the 14th March, 1856, Francis M. Mosely came to complainant, and desired that he should assign, as his surety, certain promissory notes, to be then and there given, for borrowed money; which request was speedily and positively rejected.” 2. “ Said Mosely then…

Tried before the Hon. John Gill Shorter. This action was brought by John R. Humphries, against Alfred Gandy, to recover damages for the false and malicious speaking by defendant, of and concerning plaintiff, on the 1st May, 1856, of the following wor-ds: “ That he (plaintiff) had stolen a paper from him (defendant) worth $2,100 “ that Humphries (plaintiff) had stolen from him (defendant) a paper worth $2,100, which was his (defendant’s) property “ that he (plaintiff-) took a…

In the matter of the estate of Litteberry B. Kinnebrew, deceased, on final settlement of the accounts of Edwin H. Kinnebrew, the administrator. The only matters here assigned as error are the rulings of the probate court in allowing the administrator credit for two vouchers, Nos. 5 and 8 in his account, to which the distributees objected.

In the matter of the estate of John Pipkin, deceased? on the petition of William 0. Austin and others, who claimed to be distributees of said estate, asking that Fleming Jordan, the administrator, might be cited to a final settlement of his accounts.

Heard before the Hon. Wadi Keyes. The bill in this case was filed on the 11th November, 1857, by Mrs. Lucy N. Perrine, against the executors, devisees and heirs-at-law of her deceased husband, James Perrine; and sought an allotment of her dower,in the real estate 'of which her said husband had died seized and possessed, together with her proportion of the rents received by the executors.

Tried before the Hon. Nat. Cook. This action was brought by the appellees, as partners, against Benjamin T. Sharp and Maria, his wife; and was commenced on the 15th October, 1857.

Tried before the Hon. Nat. Cook. This proceeding was instituted by the appellee, who, on the 8th September, 1858, by his attorneys, had a notice issued and served on the appellant, in the following words: “ To Mrs. Elizabeth McMillan, the wife of Thomas McMillan: Take notice, that at the next term of the circuit court of Wilcox county, I will suggest to said court that, at the fall term of said court, 1855, I recovered a judgment against your husband, Thomas N. McMillan,…

Tried before the Hon. C. W. Rapier. This was a trial' of the right of property in several slaves, between the appellants, as plaintiffs in attachment against William M. Longmire, and Mrs. Sarah J Long-mire, the wife of said defendant in attachment, as claimant.

Tried before the Non. C. W. Rapier. This was a summary proceeding, by notice and motion, in favor of Samuel D. Carter, against James G. Slater, as sheriff of Choctaw county, and the sureties on his official bond, for the failure of the said sheriff' to execute a summons, in favor of said Carter, against John E. Rowe and G. W. Brewer. “ On the trial of the cause,” as the bill of exceptions states, “the plaintiff introduced asa witness Eugene McCaa, his attorney, who…

Tried before the Ilou. Nat. Cook. This action was brought by John C. Smith, (and after-, wards revived in the name of his administrator,) against Samuel Goggins ; was founded on a promissory note for $750, executed by one A. M. Presley, dated the 8th July, 1857, payable to the defendant by the 25th December next after date, and assigned by the defendant to the plaintiff; and was commenced on the 27th February, 1858.

' Appeal from the Probate Court of Coffee, on change of venue from Covington. In the matter of the probate of the last will and testament of Shadrach Johnson Bailey, deceased, which was propounded for probate by Butler W. Bailey, the executor, and resisted by certain of the heirs and distributees, on the grounds of undue influence, mental incapacity, and insufficient execution.

Tried before the Hon. Nat. Cook. The complaint in this case was as follows : “Robert Douglass') The plaintiff claims of the dews. vfendant $149 85, due by order James M. Crook. J drawn by Morris & Loyd, in favor of James McCann, on 11th November, 1857, and accepted by said defendant, on the 11th November, 1857, as follows : ‘ I accept the within, to the amount I may be owing on a final settlement,” — signed by said defendant.

In the matter of the estate of Nancy Phillips, deceased, on the application of Thomas II. Phillips for the grant of letters of administration to himself.

Tried before the Hon. Wm. S. Mudd. This action was l rought by Edward J. Carrington, against David E. McCrary, and was commenced on the 22d February, 1858.

Heard before the Hon. James. B. Clark. The bill in-this case was filed by the appellants, as judgment creditors of one James T. Burdine, to redeem certain lands which had been sold under sundry executions against said Burdine, and which had been purchased at the sale by. Ellis Q-ore, A. L. Neal, and others, who were made defendants to the bill.

Tried before the Hon. John Gill Shorter. The appellee in this ease, who was the clerk of the circuit court of Pike, presented an account to the commissioners’ court of said county, amounting to $72 50, for books and stationery furnished by him for the use of his office during the years 1857 and 1858, and asked its allowance as a claim against the county under section 660 of the Code.

S. D. Hale presiding, to compel that court to reinstate on the trial docket a certain cause, wherein one E. M. Lawrence was plaintiff, aud Seaborn Jones (the petitioner) and others were defendants.

Heard before tbe Hon. Wade Keyes. The bill in this case was filed by tlie appellants, wbo are the children of Mrs. Penelope (on^j^nny) Lloyd, and sought to protect their alleged interests as remainder-men in certain slaves, which were bequeathed to Mrs. Lloyd by her brother, Redding Simms, and were afterwards purchased by the defendant, Lawrence Rambo, at sheriff's sale under execution against Mrs. Lloyd’s husband.

Heard before the Hon. Wade Keyes. Ti-ie bill in this case was filed by Mrs. Mary IT. Huder, on the 24th April, 1855, for the purpose of foreclosing a mortgage on a tract of land, executed to her on the 31st January, 1852, by Thomas T. Bolling; and several purchasers from Bolling, subseqent to the execution of the mortgage, were joined with him as defendants.

Tried before the Hon. Alex. McKinstry. This action was brought by James Mendenhall, against Martin Bobbins, George Keyser, and John Hartnvell, to recover damages for the breach of a special contract, by which the defendants, “as trustees of the Jacksonville school district in Mobile county,” employed the plaintiff to take charge-of the school for a session of five months, commencing in September, 1857.

Tried before the Hon. Nat. Cook. This action was brought by the appellants, who are the children of John T. and Lucinda Henderson, against Samuel Adams, to recover certain slaves, which the plaintiffs claimed, as remainder-men, under a parol gift from one Shadrach McMichael, who was the father of Mrs. Lucinda Henderson; and of which the defendant held possession as the administrator of said John T. Henderson, the husband of Mrs. Lucinda Henderson.

Tried before the Hon. Robert Dougherty. This action was brought by Benjamin Walker, against Henry L. Wilkinson, to recover damages for the tortious act of the defendant, as sheriff of said county, in seizing and selling a mule under execution against one E. 8. Meadows, who was the son-in-law of the plaintiff.

Tried before the Hon. Nat, Cook. This action was brought by Mrs. Rachel Mock, the wife of Jacob Mock, against John Bolling, to recover. damages for the defendant’s conversion of certain beef-cattle, which the plaintiff claimed as a part of her statutory separate estate, and which the defendant had purchased from said Jacob Mock. The defendant-pleaded, 1st, the coverture of the plaintiff; and, 2d, the general issue.