Volume 42 — Alabama Reports

Heard before the Hon. N. W. Cocke. The bill in this cause was filed on the 12th of April, 1866, by Benajah S. Bibb, and Jefferson Ealkner, as executors of the last will and testament of William B. S.… Held: that it was the intention of the testator that the legatee should have the legacy, and that the manner of paying it was merely directed.

Tried before the Hon. John Henderson. This suit was brought by the appellee against the appellant, and was commenced on the 16th of January, 1866, by summons and complaint.

Heard before the Hon. N. W. Cocke. The bill in this case was filed on the 29th November, 1865, by William Lee and James Lee, both infants, suing by their next friend, against Allen Erazer and Mildred E. Erazer, his wife, and sought to have set aside the sale of certain real and personal property.

In the matter of the estate of Daniel Enlon, deceased ; said Enlon died in the spring of the year 1848, in Dallas county, leaving a last will and testament, which was admitted to probate on the 19th day of July, 1858, in the probate court of Dallas, county. His wife, Nancy, who was a legatee and devisee under said will and executrix, but who never qualified as such, survived him; she died in said county in 1854.

Tried before the Hon. R. W. Cobb, as special judge, appointed under the provisions of section 758 Revised . Code) in consequence of the incompetency of the Hon. John Moobe to preside. This was an application on behalf of the appellant for a new trial, and was made at the fall term, 1867, of the circuit court of Perry, under the acts of the legislature,’ 11th February, 1867, and 18th February, 1867. — Pamphlet Acts, 392, 568 ; Rev. Code, § 2827.

Tried before Hon. John K. Henry. This action was brought by John F. Blue, against E. K. Beck, to recover damages for the conversion of a slave, and was commenced on the 8th day of September, 1859. Said Beck was the executor of Daniel W. Sterrett, who died in the fall of 1858, having published his last will and testament, which was admitted to probate in the probate court of Wilcox county, on the 28th day of September, 1858.

This was a proceeding instituted by the appéllant in said probate court, in which it, being a corporation, and a legatee and devisee, under the will of Henry C. Tison, deceased, sought to have set aside and declared void certain sales of real and personal property belonging to the estate of said decedent, made by H. W. B. Price, (the appellee,) his executor, under and by authority of the orders of said court.

Tried before the Hon. John Moore. This action was brought by J. Abraham & Brother partners, against Theodore Nunn, to recover damages for the conversion of three bales of cotton, and was commenced on the 30th day of April, 1866. No pleas are found in the record, and it does not appear that any were filed.

Heard before the Hon. N. W. Cocke. The bill in this case was filed on the 8th day of March, 1866, by George Barrell, a citizen of the State of New Jersey, and sought to establish in favor of… Held: that property acquired subsequent to its passage, by a citizen of the United States, was subject to sequestration.

Tried' before the Hon. Thomas M. Arrington. This action was brought by Perry Watson, against the Alabama and Florida Railroad Company, to recover damages for tbe breach of a written agreement, entered into by the defendant with the plaintiff on the 29th day of January, 1861, and was commenced on the 4th day of November, 1862.

Tried before the Hon. H. Chamberlain. This was an action for money had and received, brought by the appellee against the appellant, and was commenced by attachment on the 13th day of July, 1866. When the case was called for trial, the defendant moved for a continuance, and as a part of his reasons therefor, alleged that one McMullen, if' present, would testify, as set forth in a statement of defendant in writing and under oath.

Tried before J. A. Minnis, esq., as special judge, appointed under the provisions of § 758 of the Eevised Code, in consequence of the incompetency of the presiding judge of said court to try the cause. This was a proceeding by the Alabama & Florida Bail-road company, to have certain lands belonging to James Burkett, the appellee, appropriated to its use, alleging that said company required said lands in the construction of their railroad.

Heard before Hon. N. W. Cocke. The bill in this cause was filed by James L. Winter and Charles W. Winter, on the 15th August, 1866, and sought to enjoin certain judgment creditors of one James R. Dickerson, from selling a certain lot and store in the city of Montgomery, Alabama., under sundry executions issued on judgments recovered by said creditors against James R. Dickerson.

Tried before Hon. C. W. Rapier. This action was brought by the appellee, who was a British' subject, against the appellant, as a copartner in the late firm of E. H. Chamberlain & Co., to recover compensation for services performed by appellee, in protecting certain cotton belonging to the said firm, and was commenced on 27th March, 1866.

Tried before the Hon. H. Chamberlain. This action was brought by John M. Brown, against the Bank of Mobile; was commenced on the 16th March, 1866, and was founded on a bill of exchange or bank check, of which the following is a copy : “$1500 00 Bank oe Mobile, ) Mobile, 23d April, 1862. j Pay this, my second check, first unpaid, to the order of Thomas H. Eawls — fifteen hundred dollars, (payable in currency.) Original. J. S. Gbeen, Cashier. Merchants’ Bank, New Orleans.

Tried before the'Hon. John K. Henry. This action was brought by Jesse Gr. Bradley and Mary Powe, as administrators of C. S. Powe, deceased, against Thomas A. Powe, John J. Longmire, and Wm. M. Long-mire, and was commenced on the 26th February, 1866.

Heard before Hon. N. W. Cocke. The bill in this case was filed on the 12th May, 1863, by Lucy A. Turner and her husband, William Turner against Adolphe Benard and Victor Angelot, and sought to enjoin said Benard from selling a certain lot of land in the city of Mobile.

Tried before Hon. H. D. Clayton. This action was brought by Martha J. Thomas, as administratrix of the estate of John F. Thomas, deceased, against Wade H. Thomas, James C. Cade, and William Thomas; was commenced on the 9th January, 1866, and was founded on a promissory note for $4,815, made by the defendants, on the 30th November, 1864, payable to the plaintiff’s intestate, or bearer, twelve months after date.

Tried before Hon. H. Chamberlain. This action was brought by G. B. , Hall, against E. S. Perryman, and sought to recover the costs and expenses incurred by the plaintiff, while sheriff of Baldwin county, in keeping possession, as such sheriff, of the steamboat James Battle, and was commenced on the 6th January, 1865. 'The hill of exceptions shows, that on the 6th May, 1861, a suit in detinue was brought by the defendant Perryman, to recover possession of the steamboat James…

This was a proceeding by Caleb C. Farmer, and Mary L. Farmer, his wife, to have dower assigned to Catharine Ray, in the land of her former husband, Ferdinand Wilkie, deceased, and was commenced by petition on the 2d day of February, 1867.

Heard before the Hon. N. W. Cocke. The bill in this case was filed by Richard G. Sager, guardian of James G. and Helen M. Sager, on the 2d of December, 1865, and sought to forclose a mortgage executed by Martin Toulmin and his wife Francis H., to said Richard G. Sager, guardian, &o., to secure the payment of a Certain note made by said Martin Toulmin to said guardian, on -the 28th November, 1862, for five thousand dollars, payable twelve months after date, with interest, at…

Heard before Hon. N. W. Cocke. The bill in this case was filed on the 6th Eebuary, 1866, by James A. Conner and Anna Conner his wife, Beneen McLelland, and Rosa McLelland, of the State of Mississippi, against David L. Campbell, Bulah McLelland, Mary McLelland, and George McLelland, and sought to compel a settlement of said David L. Campbell's guardianship of the children of George K. D. McLelland, deceased.

Tried before Hon. H. Chmberlain. In this case a libel was filed on the 23d July, 1867, as follows : “ The libel and complaint of John E. Eawson, against the steamboat called the Eio Grande, of which James N. Williams is or was lately master, her tackle, &e,s against all persons intervening for' their interest in said steamboat, in cause of contract, civil and marine, for work and labor done, and therefore, the said John E. Eawson doth allege and propound the following: That…

Note by the Reporter. — The transcript does not disclose who was the presiding Judge. This action was brought by Rufus K. George, as the transferee of a promissory note, and was commenced on the 8th of April, 1861. The death of the-plaintiff having been suggested, the suit was renewed in the name of Desdamona George, his executrix.

Tried before the Hon. Bobert Dougherty. This action was brought by the appellant against the appellees; was commenced on the 4th March, 1859, and sought to recover damages for the breach of the conditions of a bond.

Tried before Hon. C. W. Bapier. Overall & Moulton, appellees, sued out an attachment on the 22d August, 1862, returnable at the fall term, 1862, of the circuit court of Mobile, and summoned Petty, the appellant, by process of garnishment. Petty answered on 29th Nov’r, 1862, that he had a gold watch and chain belonging to defendant, but that he held it as indemnity for signing an appeal bond for defendant, returnable to the January term, 1863, of the supreme court.

Heard before Hon. N. W. Cocke. The bill in this cause was filed on 9th April, 1866, by Francis Gordon, jr., against Johü.Ellsberry and J. H. Jones, and sought to enforce the vendor’s lien for the purchase-money of a tract of land.

In the matter of the estate of Joseph B. Marshall, deceased ; John L. Marshall, the appellee, was the executor of the last will and testament of said Joseph B. Marshall, which will was admitted to probate in the probate court of Monroe county, on the 2nd January, 1865.

Tried before the Hon. John K. Henry. This action was brought by the appellee against the appellant ; was commenced on the 28th October, 1865 ; and was founded on a promissory note made by the defendant, on the 10th January, 1860, and payable on the 25th December, 1860.

Tried before the Hon. H. D. Clayton. This action was brought by D. ,W. Roach, as administrator of Wm. Wright, deceased, against Hillary Arrington, W. H. Stuckey, and Geo. P. Pitman; was commenced on the 31st March, 1866 ; and was founded on a promissory note made by the defendants on the 10th September, 1864, payable twelve months after date to the plaintiff, as administrator.

In the matter of the estate of Garland T. Gardner, deceased ; Yirgil H. Gardner, the surviving executor of said estate, appeared in the probate court of Dallas county, on the 16th September, 1868, the day appointed for the final settlement of his executorship of said estate.

Tried before Hon. George Goldthwaite. On the 11th day of January, 1860, James R. Stewart, the appellee, was summoned by process of garnishment, to answer what he was indebted to E. M. Dillard &'Co., against whom the appellants, Wyman, Moses, & Co., had recovered a judgment at the June term, 1859, of the circuit court of Montgomery.

Heard before Hon. John K. Henry. This was an application, by petition, by E. B. Lott, administratrix, to the judge of the circuit court for Monroe county, for a new trial, in the case of R. N. Callahan vs. E. B. Lott, administratrix, <fcc., in which judgment was rendered against the defendant, at the-fall term, 1866, of said court. The petition was filed on the 14th December, 1866. Upon hearing the petition, demurrer .and answer thereto, the judge granted a new trial.

Tried before Hon. H. D. Clayton. This action was brought by William C. Wilson, administrator, with the will annexed, of the estate of Mary Wilson, deceased, against Thomas Armstrong, Ira Elliott, and G. W. Williams ; was commenced on 17th March, 1866, and was founded upon a promissory note made by the defendants on the 4th day of May, 1863, and payable on 1st day of January, 1864, to plaintiff, as administrator of said deceased.

Heard before Hon. J. Q. Loomis. The bill in this case was filed on the 11th January, 1867, by James A. Crook, against George W. Chambers, and sought to enjoin the collection of a judgment which the defendant had recovered against the complainant in the circuit court of Wilcox county, on'a statutory award.

Tried before the Hon. T. M. Arrington. This action was brought by the appellant against the appellee, and was commenced on the 13th April, 1866. The complaint contained three counts ; for money had and received, money loaned, and, an account stated. On account of .the charge of the court, the plaintiff was compelled to take a non-suit.

Tried before the Hon. George Goldthwaite. This action was brought by the appellee against the appellants, as makers of a promissory note, payable to the appellee, and was commenced 8th October, 1862. Upon the summons and complaint was endorsed the following: “ I accept service of the within, and wave all irregularities, October 14th, 1862. (Signed.) L. E. Lloyd.” “Eeceived in office, October 10th, 1862.

In the matter of the estate of W. W. Pope, deceased, and an application to remove the administrator thereof, for maladministration. On the 15th August, 1867, B. J. Davis, the appellee, as the guardian of the minor children of said decedent, filed his petition in the probate court of Henry county, to remove Thomas G. Blackman, the appellant, from the administration of said estate.

Tried before Hon. Wn. S. Mudd. This action was brought by the appellee against the appellant ; was commenced on the 18th December, 1865, and was founded on a bill of exchange, of which the following is a copy: “$17,968 00 Tuskaloosa, March 18, 1865. At sight, pay to order of Dr. N. Venable, seventeen thousand nine hundred and sixty-three' dollars, on account purchase forty-eight bales cotton. (Signed,) R. P. Knott.

In tbe matter of the probate of the will of William MeMillen, deceased, Thomas B. O’Neal, proponent, and Mary Reynolds and her husband, James M. Reynolds, contestants.

Tried before Hon. George Goldthwaite. This action was brought by R. H. Offutt against J. H, & T. S. Wells, partners, and sought to recover damages for the breach of an agreement entered into between the parties. The suit was commenced by the suing out of an attachment on the 9th November, 1861.

, In the matter of the estate of Jesse A. Bozeman, deceased, Bunberry Flinn, administrator. The said estate was regularly declared insolvent by a decree of the probate court of Montgomery, on the 15th day of March, 1866, and on the 28d day of May, 1866, Joseph Shackelford filed in the office of the judge of said court, as a claim against said estate, a paper in writing, as follows : “ $6,800.

Tried before the Hon. H. D. Clayton. This action was brought by Eldred Johnson against Thomas Brown, the appellant; was commenced on the 19th March, 1861, and was founded on a promissory note, of which, and the endorsements thereon, the following is a copy: “$200 00. By the first day of January, 1859, we promise to pay Thomas Brown or bearer, two hundred dollars, for value received, Oct. 17, 1857.

Heard before Hon. N. W¡ Cocke. . The bill in this case was filed on.the 11th day of October, 1865, by Elizabeth Owens against Eobert D. Ware, and sought to have dower decreed to her in a certain lot or parcel of land in the city of Montgomery. According to the allegations of the bill, the complainant intermarried with E. B. Owen before the year 1847, and continued to be his wife until his death, which occurred on the 28th of October, 1862.

In the matter of the estate of Alfred Jones, deceased; James M. Dillehay and John B. Calloway, administrators. On the 80th August, 1866, Calloway appeared in the probate court of Montgomery, and filed his petition for the removal of Dillehay, his co-administrator, on the ground of his having removed from the State. The court made an order, setting a day for the hearing of the petition and issued notice to Dillehay.

This was a proceeding by petition by William 0. Oates, as administrator with the will annexed, of William J. Ward, deceased, late of the county of Polk, State of Texas, to compel John J. Ward, the administrator of one James Ward, deceased, to pay over to the petitioner the distributive share his testator, said William J. Ward, was entitled to as a distributee of said James Ward’s estate.

Tried before the Hon. B. F. Saeeold. This action was brought by the appellee as the endorsee of a promissory note against the appellant, the maker of the note, and was commenced on the 24th February, 1866. The note was executed on the 14th May, 1861, payable on the 15th December, 1861, to B. N. Shropshire, for $1,030. As the bill of exceptions states, “this case was tried on the general issue, with leave to give in evidence any matter which could be pleaded or replied.

Tried before Hon. H. D. Clayton. This action was brought by appellee against the appellants ; was commenced 26th. March, 1866, and was founded on two promissory notes made by defendants, payable to the plaintiff. Judgment was rendered against the defendants at the fall term, 1867.

Tried before the Hon. Henry D. Clayton. This was an action by Reynolds against Gamble, in the court below, to recover damages for the conversion of a mule by the said Gamble. The facts were as follows: Reynolds was head of a family, and owned two mules only and no horse or pair of oxen.

Tried before the Hon. H. D. Clayton. This action was brought by the appellant against the appellees, was commenced on the. 81st March, 1866, and was founded upon certain promissory notes made by the defendants, payable to the plaintiff as administrator.

Tried before Hon. John Moore. This was an action by the appellee against the appellant, a corporation, to recover damages for the failure of the defendant to deliver certain goods shipped upon defendant’s road, and was commenced on the 30th March, 1857. At the spring term, 1867, there was a verdict and judgment for the plaintiff.

Heard before Hon. N. W. Cocke. The bill in this case was filed on the 26th July, 1866, by Samuel W. Yance, as the guardian of James B. G. Yance, .and Sarah E. Yance, and sought to enforce the payment… Held: and owned by the said Peachy R. Gilmer at the time of his death, and passed into the hands of his executors, as assets.

Tried before Hon. T. M. Arrington. , This was a motion by the appellant in tbe court below, for an order to quash and annul the proceedings of the sheriff of Montgomery county, in setting aside a homestead to the defendant, (the appellee,) in certain lands levied on under an execution issued in the case of Okancey Pomroy v. David J. Bunting, and for an order to sell the land claimed by defendant, as his homestead.

Tried before the Hon. H. D. Clayton. This action was brought by James W. Stokes, against Patrick B. Skipper; was founded upon certain accounts transferred to the plaintiff as hereinafter stated ; and was commenced on the 28th February, 1861. The defendant demurred to the complaint as the bill of exceptions taken by the defendant states, upon the ground that the plaintiff had but an equitable interest, as the agreement declared on was only executory.

Tried before Hon. John Moore. This action was brought by the appellee against the appellant, and was commenced on the 25th October, 1859.

This was an action for breach of covenant by appellee against appellant; tried at February term, 1867, of the City Court of Montgomery, before Hon. T. M. Arrington.

Tried before Hon. T. M. Arrington. This was an action by Martin against Hill for $200 rent of a house in the city of Montgomery. The complaint alleges, that defendant rented of plaintiff his house at $800, for the year, from 1st October, 1865 ; and that this sum was due for the first quarter. Defendant pleaded the general issue, and among other pleas, the following: “5th.

In the matter of the estate of Richard P. Anderson, deceased, and a final settlement of the administration of Isaac E. Anderson, surviving administrator, upon said estate; D. R. McGowan, in right of his wife, Mary Y. McGowan, who was the widow of said decedent, and R. T. Simpson, as guardian, ad litem of R. P. Anderson and Elizabeth Anderson, minors, and children of said R. P. Anderson, deceased, who are the appellees in this court, contestants.

William Rushton filed his petition in the probate court of Crenshaw county, for permission to erect a public grist mill on Capps’ mill creek, in said county.

Heard before Hon. J. Q. Loomis. The bill in this case Avas filed on the 23d February, 1865, by Phillip J. Weaver, against Frances Waddell, and Isaac M. Tidvrell, as the administrator of Thomas L.… Held: that the complainants were entitled to the relief prayed for, and vested the title to lot number 52 in the heirs-at-law of Philip J. Weaver, and perpetuated the injunction ; from this decree the defendants appealed, and assigned the same as error.

A decree was rendered by tbe probate court of Henry county, on final settlement of tbe accounts of John Ward, as administrator de bonis non of Daniel Pitts, deceased, in favor of Jane Williamson, (one of the distributees of said estate,) and her husband, John Williamson, for the sum of 630 76-100 dollars, on 23d February, 1861.

Heard before Hon. Jno. Q. Loomis. This was a bill filed by Henry H. Bender and Nathaniel Waller, against Sarah Taylor and her husband, J. C. Taylor, as administrators of Walter E. Eand, deceased, Noah H. Gewin and Mary Ann Gewin, his wife, Joseph J. Young, Ann.K. Eand, Greene B. H. Eand, Eliza W. Eand, Sarah W. Eand, and N. G. Eand.

Tried before Hon. T. M. Arrington. The plaintiffs below sued the defendant (appellee) for the breach of a contract, made with their intestate, for the delivery of a quantity of corn, in the year 1862. After the testimony had closed, the plaintiffs were compelled to take a non-suit in consequence of the ruling of the court; and appealed to this court.

Tried before the Hon. T. M. Arrington. Wm. Taylor & Co., the appellees, instituted their suit by attachment in the county court (now city) of Montgomery, against Ezekiel Donnell, a non-resident, and on the 21st day of December, 1860, the sheriff of Montgomery county executed the attachment, by summoning Charles Linn, the appellant, as garnishee, to answer as to his indebtedness to the non-resident defendant.

Apread from the Circuit Court of Dale. Note by the Reporter. — The transcript fails to show who was the presiding judge. This was a motion in the court below to quash the writ of attachment, for the reason that it was not made returnable on its face to any particular term of the court, but simply directed that the sheriff should return it to the circuit court of Dale county at Newton.

Heard before the Hon. Jno. Q. Loomis. This was a bill in chancery filed by Antonio Aicardi and others, against Benjamin H. Craig, to enjoin the said defendant from selling a certain house and lot in the town of Cahaba, under a judgment and execution which he held against one J. S. Diggs, as the property of said Diggs, and in virtue of the lien created by said judgment.

Melissa J. Jordan filed her petition in the probate court of Pike county, setting forth that she was the widow of James H. Jordan, deceased ; that her husband had died, seized of certain lands, out of which her dower had been assigned to her; and that the administrator of her husband’s estate had filed a petition for the sale of the remainder of the lands of the estate to pay debts.

This was a petition, filed by Mary Ann Johnston, as widow of Joseph Johnston, deceased, in behalf of herself, and her minor children, asking that there might be “set off by metes and bounds, real estate to the value of five hundred dollars, to include the homestead, or such portion thereof as can be selected, without injury to the remaining portion of the estate,” for the benefit of herself, and said minor children.

Tried before Hon. John Moore. This action was commenced by the appellant against the appellee, in a justice’s court, on the 25th October, 1865. The cause of action was a promissory note made by the defendant. The justice rendered judgment against the defendant on 13th November, 1865, for sixty-two 55-100 dollars and two 10-100 dpllars costs. Erom this judgment the defendant appealed to the circuit court, where the trial was had de novo.

Tried before Hon. T. M. Arrington. This was an action for conversion of chatties brought by appellee against appellants. Otto G. Eckwurzel, (appellee,) a confectioner doing business in the city of Montgomery, ordered certain invoices of goods, suitable to his business, from two firms, one at New York, and the other at Baltimore.

Tried before tbe Hon. T. M. Arrington. The appellant Bay commenced bis suit against the appellee, on tbe 29th March, 1866. Tbe cause of action was a bill of exchange, endorsed by the defendant.

Tried before the Hon. Eobert Dougherty. This action was brought by appellee .against the appellants ; was commenced on the 9th March, 1866, and was founded on a promissory note made by the appellants, a copy of which is as follows : “One day after date, we or either of us, promise to pay H. A. Shepherd, or bearer, the sum of $175, for a horse to go in captain Smith’s mounted company, the horse to be paid for as he draws his money.

Tried before Hon. George Goldthwaite. This action was brought by the appellee, as administrator, “Bragg’s Store, Nov. 21st, 1864. By the first day of January, 1866, I promise to pay G. A. Thigpen, administrator, &c., thirty-five hundred pounds seed cotton, and seventy-five bushels corn, for the rent of the land I am living on. The above note is given for the rent of the land for sixty-five.” The breach of the contract assigned, was the non-delivery of the corn and cotton.

Tried before ITon. H. D. Clayton. This was an action of detinue to recover a slave, brought by the appellee against the appellant, and was commenced on the 11th day of April, 1862.

Tried before the Hon. Robert Dougherty. This was an action brought by N. W. Cocke, on a promissory note, signed by four persons, J. S. Caldwell, H. M. Caldwell, O. T. Segrist, and W. E. Teat. The summons and complaint were, in the first instance, issued against the three first named persons only. It was returned “executed” on these defendants, to the spring term, 1862, of Macon circuit court.

Appeal frorp Probate Court of Macon county. This was a proceeding for final settlement in the probate court of Macon county, between Howell Peebles, executor of tbe last will and testament of N. G. Owen, ■ deceased, who was guardian in his lifetime, of B. L. Owen,.a minor, and said B. L. Owen, by W. 0. Mclver, guardian ad litem.

Apreax, from the Circuit Court of Talladega. Tried before Hon. John Henderson. This was a motion for a summary judgment by the . appellee against the appellant, as the administratrix of the. estate of-H. G. Barclay, deceased.

Tried before Hon. T. M. Arrington. Tbe appellee instituted Ms suit against tbe appellant on tbe 7th day of January, 1867, in a justice’s court, and judgment having been rendered in that court against appellant, be applied to tbe probate judge of Montgomery county to grant Mm a writ of certiorari to remove tbe cause into tbe city court of Montgomery.

Note by the Reporter. — These two cases are almost identical in their facts and the questions of law which they present, and were heard and decided at the same time in the Supreme Court, by consent. A statement of one case only is, therefore, here set out. This was a petition for a supersedeas, by Langdon Ellis against Simeon B. Smith.

<p>Appeal from the Circuit Court of Talladega.</p> <p>Tried before Hon. John Henderson.</p> <p>The facts of this case are stated in the opinion of the court.</p>

Tried before the Hon. James Cobbs. This action was brought by the appellants against the appellees; was commenced on 29th March, 1866, and was founded upon a promissory note made by the appellees, payable to one John Gillham, on 15th February, 1861.

Tried before the Hon. John Moore. This was an action of unlawful detainer, brought by the appellant against the appellee, and was commenced in a justice’s court on the 28th October, 1861. The justice gave judgment for the plaintiff, and defendant appealed to the circuit court, when, upon a new trial, judgment was rendered for the defendant.

<p>[attachment by garnishment. ]</p> <p>1. Garnishment; contest over garnishee’s answer. — The plaintiff in attachment by garnishment, will not be permitted to affirm, in controverting the truth of the garnishee’s answer, the validity of the sale of certain property'by the defendant to the garnishee, in order to subject him to the payment of the purchase-money therefor, and at the same time attach the sale for fraud.</p> <p>5. Same; what property may be reached by. — The legal rights only, of the defendant in attachment, can be reached by process of garnishment; such monied demands, as might be recovered, in an action of debt, or indebt.itakis assumpsit; and also, such property as would be liable to seizure and sale, under execution, against defendant.</p> <p>3. Same ; garnishee’s answer as evidence. — When the answer of a garnishee is offered in evidence by the plaintiff, for the purpose of contradicting the statements of the garnishee, made as a witness on cross-examination, the garnishee is entitled to have the whole of his answer read to the jury.</p> <p>4. Evidence; witness allowed to refresh his memory fromwritten memoranda. A witness may refresh his memory by referring to written memoranda, before answering questions, calling for the amount of his purchases and sales as a merchant.</p> <p>6. Statute of frauds. — E. signed a note, as the surety of B., in consideration of a verbal promise made to him by P., who was afterwards garnisheed as a debtor of B., thatif he,E. would sign the note, he, P., would pay it. This promise was made before the serv.iee of the garnishment upon P., and pursuant to the promise, P. paid a part of the note after the service, and subsequently accounted to E. for the balance of the note, — -held, that the promise was not within the statute of frauds, and that independently of this, the statute of frauds does not prevent the voluntary execution by the parties, of a contract, within its provisions, nor annul it when executed.</p>

Tried before tbe Hon. John Henderson. This was an action of assumpsit, brought before tbe promulgation of tbe Code of 1852, by tbe appellee, against tbe appellant.

Heard before Hon. J. Q. Loomis. The bill in this cause was filed on the 19th November, 1866, by J. M. McClanahan, against Horace Ware, the appellee, and sought to enjoin the defendant from proceeding to sell, under mortgage, certain stock held by the complainant in the Shelby Iron Works, an incorporated company lately engaged in the manufacture of iron, in the county of Shelby.

Tried before the Hon. T. M. Arrington. This was an action of covenant, brought by the appellee against the appellant, and was commenced… Held: or occupied the premises mentioned therein, under the agreement set out in the condition of said bond, for the full term of fifteen weeks, to the damage,” &c. As the bill of exceptions states, “the proof showed that said Bates and Tidmarsh took possession under said lease ; that on or about the 5th day of October, 1865, the defendant…

Tried before Hon. N. W. Cocke. This was a bill in equity, filed by Burwell McKinney; against E. T. Watlington, administrator of the estate of Scriven Cox, deceased, and others, praying that a certain action at law, which had been instituted against him by said administrator for certain slaves, might be perpetually enjoined.

<p>Appeal from the Circuit Court of Russell.</p> <p>Tried before Hon. Robert Dougherty.</p> <p>On the 2d day of January, 1860, an execution, called a fieri facias, issued from the office of the clerk of said court, against Wade Madden, in favor of Elias Hall, the appellee’s intestate, which was levied, on 15th March, 1860, on a slave by the name of Anderson, as the property of the defendant in execution. On the same day, John Madden and George M. Eloyd executed and delivered to the sheriff a forthcoming bond, conditioned as provided by law. On the 15th May following, John Madden made claim to the property levied on, and gave the required bond. At the spring term, 1887, (May 16th, 1867,) a trial by jury was had, “on issue joined,” and a verdict obtained as follows : “We, the jury, find the property levied on, subject to the plaintiff’s execution in this case, and assess the value of the property at the time of the levy, at $1,000and the judgment entry thus proceeds : “ Whereupon it is considered by the court, that the said property mentioned in the levy be held subject to the plaintiff’s judgment in this case, and it is further ordered by the court, that the plaintiff in execution recover of John Madden, the claimant, and John M. Phillips, and Eli Wortham, sureties on claim bond, the costs in this behalf expended,” &o. On the trial, the plaintiff offered and read in evidence, the forthcoming bond above referred to. The claimant objected to the introduction of this bond as evidence, solely on the ground of its irrelevancy, but the court overruled the objection and the claimant excepted. The plaintiff proved the negro levied on, worth, at the time of the levy, $1,000. The claimant introduced a witness and asked him, what was the value of the negro at the time of the trial, but the court refused to permit the witness to answer, stating that the negro was of no value at that time; to this the claimant objected, and the court overruled the objection, and claimant excepted. The claimant asked the court to charge the jury, “ that if they found the negro subject to the execution, they must, as far as practicable, assess his value at the time of trial,” which charge the court refused to give, and claimant excepted.' The court, at request of plaintiff, gave the following charge : “ If the jury were satisfied from the evidence, that said boy was in the sole possession and control of defendant, that was evidence of property; and was afterwards seen in the joint possession and control of defendant and claimant, the law presumes it was still the individual property of defendant, and the jury must so find, unless the evidence rebutted that presumption and to the giving of this charge claimant excepted. As the bill of exceptions states, “ when the court convened,” (having adjourned for dinner, and an agreement having been made by counsel, that the verdict might be received by the clerk in the absence of the court,) “ the jury were in their box; the claimant asked to have the jury polled. The court did so, and two of the jurors stated, there was a question they did not exactly understand, and stated it; the court explained to them, when the jury retired again and brought in the same verdict. The claimant objected to the jury retiring again, but the court overruled the objection and claimant excepted.” All the errors assigned are noticed in the opinion of the court. .</p>

This was a proceeding for final settlement of his administration, between Thomas J. Judge, former administrator of the estate of E. H. Cook, deceased, and John A. Tyson, administrator de bonis non of the same estate. At the hearing, the said Tyson, administrator de bonis, submitted a motion to charge the said Judge, as former administrator, with certain moneys, alleged to have been received by him as administrator as aforesaid.

Tried before tbe Hon. Bobert Dougherty. The appellee’s testator, one D. N. Gerald, instituted Ms suit against the appellant, and ¥m. K. Aldridge, on the 9th February, 1859, the cause of action being a promissory note. At the spring term, 1866, there was a verdict and judgment for the plaintiff, the suit having been duly revived in the name of the executor.

Apreal from the Circuit Court of Talladega. Tried before Hon. John Henderson. This was a motion in the court below to vacate and set aside a certain judgment rendered by said court, and to quash an execution issued thereon.

Heard before the Hon. George Goldthwaite. This action was brought by the appellee against the appellant; was commenced on the 11th day of May, 1866, and was founded on a bill of exchange drawn by the appellant, payable to the order of appellee, at the Central Bank of Alabama. It was endorsed on the back, “John W. McQueen, per J. Whiting.” There was a verdict and judgment for the plaintiff.

Benjamin Ivey died in Sumter county, in tbe year 1858, leaving a large real and personal estate, which he disposed of by last will and testament. Held: and still hold uncollected notes of said estate, which are herewith filed, and entirely solvent. (Signed) A. A. Coleman.” This affidavit contestants moved to reject as insufficient, and a nullity, but the court overruled their motion, and held, that the said affidavit was sufficient, and the contestants severally excepted.

. Tried before Hon. Robert Dougherty. This action was brought by Richard Bucbanan against J. B. Collins, and others; was commenced on the 5th July, 1867, and was founded upon the following agreement, signed by the defendants : “By the 15th November, we, or either of us, promise to pay Bichard Buchanan, or bearer, $350 in gold, or its equivalent.” The defendant pleaded “the general issue with leave,” &o. At the fall term, 1867, there was a verdict and judgment for the…

Tried before Hon. W. J. Habralson. This was an action of trover, brought by Howell, the appellee, against Bradford, the appellant, for the convei sion of certain slaves by appellant, and was commenced on 21st October, 1858. The plaintiff claimed title to an undivided interest in said slaves by virtue of a certain deed of gift of Jane Hamilton to Elizabeth Odell, hereinafter copied, upon the construction of which, the main question in the case depended.

Heard before Hon. J. Q. Loomis. The bill in this case was filed on the 19th December, 1866, by David J. Means, against Foster M. Kirksey, as the administrator of B. H. Eidgeway, deceased, and sought a specific performance of a contract in regard to personal property and to enforce a lien.

Tried before Hon. John Henderson. This action was brought by appellate against appellant, (and Savery, as to whom the suit was abated,) was commenced on the 5th day of October, 1866, and was founded on a promissory note made by the defendant, payable to the plaintiff. The facts necessary to understand the question of law decided in the case, will sufficiently appear from the opinion of the court.

Robert Dougherty. This action was brought by the appellee against the appellant; was commenced on the 23d day of February, 1867, and was founded on a promissory note, made by the defendant on the 22d day of January, 1867. The sheriff made the following return on the summons and complaint: “Executed by serving copy on H. M. Vann, personally, March 26th, 1867.” At the spring term, 1867, (May 16th,) there was a judgment by default against the defendant.

The appellee’s testator, Dr. William H. Rives, in his lifetime, was the guardian of Joseph Y. Allen. Dr. Rives died in 1864, without having made final settlement of his guardianship. Mrs. Sarah G. Rives, the appellee, was the executrix of Dr. Rives, and qualified as such.

Tried before Hon. John Henderson. This was an action on a promissory note given for the purchase-money of a slave brought by appellee against the appellant, and was commenced on 27th February, 1861-The facts in relation to the only point noticed, will appear from the opinion of the court.

Note by the Eepoeteb. — The transcript fails to state who was the presiding judge. This was an action against the appellant as a common-carrier, to recover the value of a money package lost by the company, and was commenced on the 13th day of February, 1866.

In the matter of the final settlement of Charles Irby, as administrator de bonis non of the estate of James M. Eembert, deceased. James P. Eembert was the son and administrator in chief of James M. Eembert, who died intestate.

<p>[ASSUMPSIT — JUDGMENT ENTEY.]</p> <p>1. When no plea is filed, court willpresumethat cause was fried on general issue. Where a cause is tried in the court below, the foundation of the action being a promissory note, and it is not shown by the record, that any plea was filed, the appellate court will presume the cause was tried on the general issue.</p> <p>2. Verdict of jury; what regarded as superfluous. — There is no difference in legal effect, between a verdict assessing the plaintiff’s damages at a given number of dollars, “in gold,” and a verdict, which assesses his damages at a given number of dollars, without the words “in gold,” and if these words are inserted in a verdict, they are superfluous, and in making up the judgment entry, need not be regarded.</p> <p>3. Judgment; satisfaction of. — Where there is a judgment entry, that the plaintiff. recover of the defendant the amount assessed by the jury, in money, the plaintiff has a right to satisfaction of the ¡judgment, in whatever currency may be a legal tender; and the defendant has the right to satisfy the judgment by a payment in like currency.</p>

In the matter of the confirmation of the sale of lands of the estate of James M. Rembert, deceased. The facts will sufficiently appear from the opinion of the court.

These two cases depend upon a state of facts entirely similar, and were heard at the same time, so that a statement of the facts of one cause, only, is given. This was a proceeding for final settlement of his guardianship, between L. N. Walthall, guardian of Thomas A. Walthall, and his said ward, before the probate court of Greene county.

This was a petition, by John C. Carter, to the probate court of Montgomery county, praying the court to set aside and declare void a decree or order of said court, previously made, for the sale of the lands belonging to the estate of John Beasley, deceased, on the petition of Frances C. Beasley, widow and administratrix of said John Beasley, deceased, who afterwards intermarried with James L. Waugh.

Tried before Hon. John Henderson. This action was brought by tbe appellee against tbe appellant ; was commenced on tbe 26th day of April, 1366, and was founded on a bill of exchange for $1,000, drawn by tbe appellant, on, and accepted by one P. M. Thomason, in favor of and endorsed by Taul Bradford, dated December 26th, 1860, at sixty days, payable at tbe office of James Isbell, Talladega, Alabama.

Tried before the Hon. W. B. Woods. This action was brought by the appellant against the appellee; was commenced on the 12th day of February, 1866, and was founded upon a promissory note made by the appellee’s intestate, and one Elijah McDaniel, who was not sued.

Tried before Hon. W. J. Harralson. The plaintiff (appellant in this court) instituted his suit in the court below to recover of the defendant (appellee) two lots in the town of Stevenson, Alabama, on the 81st August, 1860.

On the 15th day of April, 1864, the will of Dr. Jacob Y. Johnson was probated, in the probate court of Eranklin county, Alabama. The executor, named in the will, failing to make application for letters testamentary, the widow of Dr. Johnson, Mrs. Sarah Johnson, filed her application, in said court, for letters of administration with the will annexed, on her husband’s estate. Her said application was contested by W. E. Alexander, the appellant in this case.

Tried before Hon. James Cobbs. This was a motion, by Bizzell, against Hardaway, sheriff, for failing to pay over money collected under execution in his hands.

This was a proceeding for final settlement of his accounts, in the probate court of Limestone county, between E. W. Grigsby, surviving administrator of the estate of Amos B. Murrah, deceased, and the heirs and distributees of said estate, among whom were John W. Walls, and Nancy, his wife, formerly Nancy Murrah, daughter of the decedent, the appellants in this case.

Heard before Hon. Joseph R. John, Chancellor. This was a bill in chancery filed by the appellant (Phillips) to have a deed, absolute on its face, made by Ira E. Croft, to Clarissa Croft, one of the appellees, declared a mortgage. As this is the only question passed upon by the court, and the opinion of the court contains a full statement of all the testimony upon which the decision of the court is based, no further preliminary statement is deemed necessary.

Tried before Hon. James Cobbs. Knapp brought his action of trespass on the ease against the “ Selma and Meridian Railroad Company ” for injury done, as alleged, to his house and lot, situated in the city of Demopolis, by reason of the opening of a railroad cut or ditch, twenty feet deep and forty feet wide, along the street in said city, upon which his house and lot were situated.

<p>[appeal pkom justice op the peace.]</p>

Tried before Hon. Robert Dougherty. The appellee, as guardian of one Anderson, sued out an attachment against the goods of the appellant.

' Tried before the Hon. James Cobbs. This was an action for the conversion of thirty bales of cotton, brought by William B. Hamilton, for the use of Charles D. Stewart, against J. L. & W. G. Browning, the appellants in this case.

Tried before Hon. James Cobbs. Action by Killan, administrator of Brown, on note given by defendants, the appellants in this court. Defendants filed a plea of “failure of consideration and breach of warranty.” This, on motion of plaintiff, was stricken out, but to this there was no exception taken, in the court below, by the defendants.

The record in this case contains a motion made by the appellants to quash an execution, issued against them in favor of the appellee as the obligors on a replevin bond, which had been executed by them for the delivery of a certain slave which had been attached as the property of Jacob Wise, in an attachment sued out against him by Binger.

Heard before Hon. N. W. Cocke, Chancellor. This was a bill for a divorce filed by John E. Walker against his wife, Mary Y. Walker, charging adultery' There was a decree rendered in his favor, from which she appealed. The statement of facts, in the opinion of the court, upon the points on which the decision turns, is full to those points, and no further statement is necessary. There was a motion to dismiss the appeal.

Tried before Hon. James Cobbs. This was an action on a note brought by appellees against appellants. The defendants below moved to quash the summons, upon the ground, that the clerk who issued it was not a lawful officer; which motion the court overruled, and defendants excepted. The other points in the case plainly appear from the opinion of the court. There was a judgment nil dicit for the amount of the .note and interest, from which the defendants appealed.

Tried before Hon. H. D. Clayton. Bruner made affidavit, and sued out an attachment for rent, alleged to be due him from Kinsel, the appellee. The writ of attachment is in these words : “ State oe Alabama — Dale county.

Heard before Hon. N. W. Cooke, Chancellor. This was a bill in chancery filed by Pace (the appellee) against the appellant, to subject certain land to sale, for the enforcement of a vendor’s lien. There was a decree pro confesso, and a sale of the land ordered. From this the said Long appealed, and assigns for error the decree of the court. The opinion of the court is so full on the question decided, that no further statement is necessary.

This was- a proceeding by petition to the probate court of Marengo, on the part of the appellants, to amend and revive a decree of said court, made at the May term, 1860 on a partial settlement of the estate of John Horn, deceased, by John A. C. Horn, the executor, (appellee in this court.) The petition was duly sworn to, and was filed on the 8th April, 1867. The facts of the case are sufficiently stated in the opinion of the court.

This was a proceeding for the final settlement of his guardianship accounts, between the appellant, Brand, and his ward, Abbott, the appellee. At the hearing the said Brand, the guardian, offered himself as a witness in his own behalf. This the court refused) and the said guardian excepted.

Tried before Hon. Bobebt Doughertí. This was an action on a promissory note, brought by Wood (the appellee) against Lewis.

This was a motion by the appellant in the court below to substitute a decree, the original records of the court having been destroyed in 1865 by the burning of the court house. The facts of the case are stated in the opinion of the court.

Tried before Hon. W. B. Woods. This action was brought by the appellee against the appellant; was commenced on the 3d February, 1866, and was founded on a promissory note made by E. W. Parker, payable to the defendant on the fourth Monday in March, 1861. This note was endorsed in blank by the defendant to the plaintiff, in the month of July, 1861.

Heard before the Hon. George Goldthwaite. The appellant was indicted at the spring term, 1868, of said court, for the murder of one Moses Carr, and on the 7th May, 1868, a day of said term, was tried and found guilty. The questions of law decided in the case will be sufficiently understood from the opinion of the court.

Tried before the Hon. Robert Dougherty. This was a motion in the court below to quash an execution and re-tax costs. At the fall term, 1866, of the said court, William R. Magruder and George W. Dent (the appellants) were jointly indicted for selling vinous or spirituous liquors without license, and at the fall term, 1867, they were tried and convicted, and fined fifty dollars, and a judgment rendered against them for this amount, together with the costs.

Tried before Hon. George Goldthwaite. This was a motion in the court below, by the appellant, for a mandamus to M. A. Chisholm, comptroller of public accounts.

Tried before Hon. John Henderson. The appellant was prosecuted, on tbe complaint of tbe solicitor, for peddling without a license. On tbe 5th September, 1867, a trial was bad before a jury, on tbe plea of not guilty, and tbe defendant convicted. Tbe other facts of tbe case are fully stated in tbe opinion of tbe court.

Tried before Hon. Eobert Dougherty. The facts of this case will be sufficiently understood from the opinion of the court.

Tried before Hon. Eobert Dougherty. The appellant was tried at the spring term, 1865, and having pleaded guilty to the indictment, the jury assessed a fine of $1,250, together with the costs, and a judgment nunc pro tunc was entered upon this verdict at the spring term, 1866. At the fall term, 1866, the defendant made a motion to vacate said judgment, and in support of this motion produced a pardon from the Governor of Alabama remitting the fine.

Tried before Hon. John Moore. This was an indictment for the larceny of a horse, and was found on the 25th May, 1867. At the spring term, 1868, the defendant was tried and found guilty, as charged in the indictment.

<p>[INDICTMENT 3?OB PETIT LARCENY.]</p> <p>1. Indictment for larceny; value of thing stolen must he averred. — An indictment for larceny, which fails to aver the value of the thing alleged to have been stolen, is defective, unless the statute which makes the stealing of the particular thing a felony, without reference to its value, in which case it is unnecessary to aver value.</p>

Tried before the Hon. T. M. Arrington. The indictment in this case was found at the February term, 1868, of the city court, and charged “ that before the-finding of the indictment Thomas Mason, John Franklin, and Richard Henley, with intent to steal, broke into and entered the dwelling house of J. Godwin Scott, against the peace,” &c. The State entered a nolle prosequi as to Richard Henley, and a trial being had as to the other two defendants, on the plea of not guilty, they…

Tried before Hon. W. J. Haebalson. This indictment was found at the August term, 1866, of said court, and charged, “ that before the finding of this indictment Andrew Brown, being a tax payer in said county of Blount, did fail to render list of his taxable property within fifteen days after personal demand by the assessor, against the peace,” &c. The defendant pleaded not guilty; on issue joined, the jury found the defendant guilty, and assessed a fine of ten dollars.

Tried before Hon. T. M. Arrington. The indictment in this case was found at the February term, 1868, of said city court, and charged, “ that before the finding of this indictment, Thomas Mason, John Franklin, and Eichard Henley, broke into and entered a dwelling, to-wit: an office of Benjamin Micou and George Morgan, in which money, a valuable thing, was then and there kept for use, sale or deposit, with intent to steal, against the peace,” &c. There was a nolle prosequi…

Tried before Hon. George. Goldthwaite. The questions of law decided in the case, will be sufficiently understood from the opinion of the court.

Tried before Hon. T. M. Arrington. This action was brought by E. M. Patton, as the Governor of the State of Alabama, against Wm.B. Gilmer and others, and was commenced on the 10th day of November, 1866, in the circuit court of Montgomery, and by consent was transferred to the city court. — (See 41st Alabama Eeports, page 177, et seq., where the complaint is set out in full; also, the act of the legislature under which this contract was made, and which was approved on the 7…

Tue nature of this proceeding and the facts in relation thereto, are so fully stated in the opinions of the judges, it is unnecessary bo repeat them here.

Tried before Hon. T. M. Arrington. This action was/brought by the appellant against the appellee ; was commenced on 8th April, 1866, and was founded on a promissory note made by the appellee, dated February 5th, 1862, and payable by the first day of January next thereafter, for the sum of $1,000, with interest from date, to Willis B. Calloway, or order, who endorsed said note before maturity to the appellant.

Tried before Hon. Wm. B. Wood. This action was brought by James W. Alexander, as the executor of John Oarlock, deceased, against John Spear, and others ;was commenced on the 20th day of August,1867, and was founded upon a promissory note made by the defendants, a copy of which is as follows: “ $2,195 60.

Tried before the Hon. George Goldthwaite. This was an action of unlawful detainer, brought by the appellee against Spear & Thomasson, partners; and was commenced in a justice’s court on 9th October, 1865. The justice gave judgment for the plaintiff, and the defendants appealed to the circuit court, having given an appeal bond.

Tried before tbe Hon. H. Chamberlain. This was an action to recover money'brought by W. W. McGuire, as the administrator of T. Sandford, deceased, against the President and Directors of the Bank of Mobile, and was commenced on the 6th day of February, 1868. The money sought to be recovered had been deposited, in defendant’s bank by T. Sanford, in his life time.

In tlie matter of the final settlement of the accounts and vouchers of Lewis Stoudemire, as guardian of Catharine A. Hoffman. This settlement was made on the 3d day of April, 1867.

Tried before Hon. H. D. Clayton. This was an action of unlawful detainer, brought by the appellees against the appellant; and was commenced in a justice’s court, on the 23d February, 1867. The complaint filed in the justice’s court, is as follows : State of Alabama, l Pike county, j To John J. Owens, justice of the peace in and for said county.

Tried before tbe Hon. John Moore. This was an action instituted on tbe 18tb day of March, 1866, by tbe áppellee against tbe appellant, in tbe circuit court of .Dallas, founded on an instrument in writing, as follows, viz : “ Selma, Ala., Feb. 1st, 1865. $2,030 00. Thirty days after date I promise to pay J. W. Lapsley, or bis order, two thousand and thirty dollars for value received.

Heard before Hon. N. W. Cocke. The original bill in this case was filed on the 15th September, 1860, by Mrs. Mary D. Witter, by her next friend, against John Dudley. The bill was afterwards amended several times. In addition to the facts stated in the opinion of the court, the following are stated as appearing upon the record.

Proceeding by petition to compel an administrator of a deceased guardian to make a final settlement of his intestate’s guardianship. It appears that on the 25th April, 1857, Charles Foster, appellant’s intestate, was appointed by the probate court of Baldwin county, guardian of the appellees, and that he died without having made any settlement of his accounts as such guardian, and the appellant was appointed his administrator on the 3d September, 1866.

On the 22d May, 1869, Jones, the appellee, was brought before the Mayor of Mobile, and fined $50 for a violation of a city ordinance. The defendant gave bond and appealed to the circuit court, where a trial was had de novo on a complaint filed by tbe Mayor, &c., of Mobile. On the trial in this court the defendant was allowed to testify in his own behalf, against the objection of the plaintff. iThere was a judgment for the defendant, and an appeal by the Mayor, &c.

Tried before Hon. John Henderson. Action on contract brought by Sarilda Edge against Moses Park, Gooden Adcock and Abner R. Hill, on the 9th day of January, 1866. The defendants pleaded, “ severally and jointly: first, non asumpsit; second, payment; third, accord and satisfaction; fourth, statute of limitations of three years.” There was a verdict in favor of one of the defendants, and against the other two, and a judgment entered in accordance therewith.

In tbe matter of tbe final settlement of tbe accounts and vouchers of John Skinner, as administrator of tbe estate of David Skinner, deceased, made on tbe 8th day of July, 1867.

<p>Appeal from the Circuit Court of Jefferson.</p> <p>Tried before Hon. Wm. S. Mudd.</p> <p>The facts of this case are stated in the opinion of the court.</p>

<p>[final settlement of guardian's accounts.]</p> <p>1. Gumdian competent witness for himself; when. — A guardian is a competent witness for himself, on final settlement of his guardianship.— Revised Code, § 270á.</p> <p>2. Former decisions. — The former decisions of this court on investments by guardians, &c., in Confederate securities, cited.</p>

<p>Appeal from the Circuit Court of Bussell.</p> <p>Motion for an affirmance of a judgment on certificate.</p>

Heard before Hon. John Q. Loomis. The' bill in this case was filed by John A. Ellerbe, Eliza E. Winn, (formerly Ellerbe,) and her husband, Henry J. Winn, (appellants,) on the 27th June, 1866, for the purpose of having specifically performed a parol contract for the sale of land.

N. W. Cocke. The bill in this case was filed on November 26th, 1867, and sought to enjoin the defendant, (appellant) from collecting a certain judgment which the defendant had recovered of the complainant, (appellee) in the circuit court of Montgomery.

Heard before Hon. N. W. Cocke. The bill in this ease was filed by O. W. Martin, (the appellant) against M. P. Baborn, as administratrix of John L. Baborn, deceased, and others, (appellees), on the 15th February, 1867. .The case made by the bill is as follows : In 1850, John L. Baborn was appointed by the probate court of Macon, guardian of the complainant, and acted in that capacity until his, the guardian’s death, in 1862.

Tried before Hon. H. D. Clayton. The appellants instituted their suit against the appellee on the 15th January, 1867.

Tried before Hon. W. J. Harralson. The appellant made affidavit before a justice of the peace, and sued out an attachment against the appellee on the 10th day of October, 1866, returnable to the circuit court. The defendant in this court moved to quash the attachment, but his motion was overruled. At the spring term, 1867, a judgment by default was rendered against the defendant. No complaint was filed in the cause.

In the matter of the final settlement of the accounts and vouchers of Thomas Thompson, (appellee,) as administrator of the estate of J. H. McElroy, deceased, made on the 27th November, 1866; Wm. T. McElroy, a distributee, and F. A. Gamble, administrator de bonis non of the estate, contestants.

Tried before Hon. H. D. Clayton. This suit was brought by the appellee . against the appellant, on the 27th day of March, 1867.

Proceeding by petition to revive a decree of partial distribution. The petition was filed on the 6th September, 1867, by J. D. Bludworth and his wife, Emily.

In the matter of the final settlement of Robert A. Baker’s guardianship of T. B. Dallas, a minor, by Robert L. Baker and Stephen Potts, as administrators of the said Robert A. Baker, who, in his life time, was both guardian and administrator of said T. B. Dallas. On the 2d February, 1860, Robert' A. Baker, appellees’ intestate, was appointed by said probate court guardian of the estate of T. B. Dallas, and qualified as such.

Tried before Hon. John Henderson. The appellee instituted his suit against the appellant, a corporation, on the 15th day of December, 1865. The sheriff made the following endorsement on the summons and complaint: “ Deceived in office, 15th day of December, 1865, and executed 16th day of December, 1865, on James G. L. Huey, secretary of the defendant, by handing him a copy of the within.” At the fall term, 1866, there was a judgment by default against the defendant.

<p>Appeal from the Circuit Court of Perry.</p> <p>Tried before Hon. John Mooee.</p> <p>The facts of the case will sufficiently appear from the opinion of the court.</p>

Tried before Hon. C. W. Bapier. Westley Thomas, (appellee,) instituted bis suit against tbe Mobile & Ohio Eailroad Company, (appellant,) on the 20th September, 1865, to recover damages for an injury… Held: “ that where two persons are employed by a common employer in the same general business, and one of them is injured by the negligence of the other, the employer is not responsible therefor; as a general proposition we all yield our assent to.