Volume 43 — Alabama Reports

From the Circuit Court of Perry. Tried before the Hon. B. L. Whelan. The indictment in this case charged that “Edward Fisher broke into and entered the smoke-house of Jefferson Watts, in which meat and salt, were at the time kept, for use or deposit, with intent to steal,” against the peace, &c. At the fall term, 1868, of the circuit court of Perry, the pris-' oner was tried, found guilty, and sentenced to the penitentiary for two years.

Erom the Circuit Court of Bullock. Tried before Hon. J. McCaleb Wiley. Moses Perry, alias Powell, was indicted and tried at the fall term, 1868, of Bullock circuit court, for the murder of Alfred Perry, found guilty of murder in the second degree, and sentenced to the penitentiary for ten years.

Tried before Hon. H. Chamberlain. The appellant, Frederick Sultzner, was indicted, tried' and convicted, in the city court of Mobile, for obstructing; a public road in Mobile county. The opinion fully sets out the facts and errors assigned.. The question to-be decided in this case is whether a certain space,, which had been open and used as a passway, and had been closed by the owner of the land, was or was, not a public road or highway under the laws of the State.

From the Circuit Court of Dallas. Tried before the Hon. B. L. Whelan. Petek Crumpton and Lewis Walker were indicted at the fall term of the circuit court of Dallas, for the larceny of a horse, the property of James B. Walker, were tried •and found guilty. Crumpton was sentenced to the penitentiary for five years, and Walker for two years.

Tried before the Hon. B. L. Whelan. James Sims was indicted, at the fall term, 1868, of Perry circuit court, for larceny of two mules, the property of Robert Foster. On the 12th of November, the defendant went to trial, on issue joined, on the plea of “ not guilty,” was convicted, and sentenced to five years imprisonment in the penitentiary.

From the Circuit Court of Dallas. Tried before the Hon. B. L. Whelan. Frank Gill was indicted at the fall term, 1868, of Dallas circuit court, for burglary.

From tbe City Court of Montgomery. Tried before the Hon. J. D. Cunningham:. The facts of this case are fully set out in the opinion. 1. The sheriff’s authority to take bail is entirely statutory, and, therefore, must be exercised in the cases, and in the manner, directed by the statute. — Antonez v. The State, 26 Ala. 84 ; Governor v. Jackson, 15 Ala. 703; Button v. Foster, 14 Ala. 325. 2.

Tried before the Hon. C. F. Moulton. James Edgar was indicted at the June term, 1868, of the city court of Mobile, for the murder of Henry D. Bassett. The trial came on the 4th December, and the defendant was found guilty of murder in the second degree, and sentenced to the penitentiary for twenty-five years.

From Circuit Court of Franklin. Tried before Hon. James S. Clarke. George Crim alias Johnson, James Steel, and Daniel Allen, freedmen, were indicted at the fall term, 1868, of Franklin circuit court, for arson.

Tried before the Hon. P. Ragland, Register in Chancery,, the presiding judge being incompetent on account of interest. Application by appellee, Sarah A. Gullatt, wife of Thomas A. Gullatt, to the probate court of Jackson county, to have dower assigned her, in the lands of her deceased husband, James Campbell. The statements in the petition for dower, appear sufficiently in the opinion. Proper service was made upon all the parties.

<p>Appeal from the Circuit Court of Limestone.</p> <p>Tried before the Hon. W. B. Wood.</p> <p>The facts are fully stated in the opinion.</p>

From Probate Court of Lawrence. Tried before Hon. J. H. McDonald. This proceeding, which was a motion to substitute a lost record, was commenced by serving upon Eichard Pruit and John Moore, as administrators of the estate of Wm. Pruit, deceased, the following notice : “State of Alabama, ¡ To any sheriff of the State of Lawrence county, j Alabama.

Heard before the Hon. S. K. McSpadden. Tbe facts of the case are fully stated in the opinion. 1. The original jurisdiction of equity is not impaired by statutory exactments, conferring jurisdiction on courts of law, unless these enactments contain prohibitory or restrictive words ; such enactments are held to confer concurrent remedies.— Waldron v. Simmons, 28 Ala. 629. 2.

Heard before the Hon. S. K. McSpadden. The facts of the case appear sufficiently in the opinion. The errors assigned are: 1. The chancery court erred in proceeding without service of summons on the appellants, Martha P. and Catherine M. Barnard. 2. In proceeding without service of summons, on said Martha P. and Catherine M. Barnard, in the mode prescribed by the rules of practice. 3.

Tried before the Hon. W. B. Wood. Assumpsit by the appellee, McFarland, as administrator of Josiah Darby, deceased, against Spencer Rhodes, as administrator of Henry J. Darby, deceased, on two promissory notes made by defendant’s intestate. Service was duly executed on defendant, February 25th, 1867. Pleas, “ in short, by consent” — 1. Payment; 2. Want of consideration ; 3. Failure of consideration ; 4. Confederate consideration ; 5.

Heard before the Hon. N. W. Cocke. The original bill in this cause was filed 18th March, 1858, by Charles T. Pollard, Samuel G. Jones, and Wm. C. Yonge, partners and joint owners of the “ Chewacla Lime Works,” against Mrs. E. E. Cleaveland, C. T. Cleave-land, her husband, and W. C. Yonge, her trustee, and sought to subject Mrs. Cleaveland’s separate estate, held under the will of her deceased father, to the payment of a debt contracted by her, with complainants.

<p>[PINAL SETTLEMENT OE GUABDIANSHIP. ]</p> <p>1. Guardian; when chargeable with the amount of a decree in word?a favor. A guardian, on final settlement, is properly chargeable with the amount of a decree, rendered by the probate court in the ward’s favor, against the administrator of ward’s father, when such defendant and securities are solvent and able to pay, or when the same could have been collected by due diligence.</p> <p>2. Same. — The guardian can not receive from such administrator, in payment of such decree, the note of third persons, and if he fails to collect it, have a credit for the same on his final settlement.</p>

Tried before the Hon. W. S. Mudd. This was a summary proceeding, instituted by Marion county, against George Brown, Thaddeus Walker, Joseph Eoberts, and John J. Dickerson, sureties of Andrew M. Astin, who was tax collector for Marion county, from August 1st, 1859, to August 1st, 1860 ; to recover the sum of $877 38, taxes collected by said tax collector, and not paid over.

Tried before the Hon. John Henderson. The facts of the case appear sufficiently in the opinion. The court erred in refusing to allow the supposed appearance of Walden & Bowie to be withdrawn; the evidence shows that it was not made by either of the firm, but by the presiding judge at the fall term of 1867.

Tried before the Hon. J. MoCaleb Wiley. Suit by Charles Pickett against W. A. Whigham and H. G. Glover, on a promissory note, of which the following is a copy : “ One day after date, we, or either of us, promise to pay Charles Pickett, or bearer, three hundred and sixty-eight dollars and eight cents in specie, with interest, from the 1st day of September last, for value received of him. January 30th, 1866.

Tried before Hon. J. F. Waddell. Petition of Ann Oglesby, George Oglesby, her husband, and Ella Strong and Rufus Strong, minors, by nest friend, George W. Oglesby, to the probate court of Russell county, to remove R. O. Howard from the administration of the estate of William L. Berry, deceased, of whose estate petitioners were sole distributees.

Tried before Hon. John B. Appling. . This was a petition by Carrie S. Reese, formerly Light-foot, to the probate court, to “ open and declare null and void” a final settlement of her estate, made by the administrator of her deceased guardian, in said court, on the 14th day of March, 1864.

Application by Frank Williams for a mandamus to the circuit court of Montgomery, Hon. George Goldthwaite presiding, “ to compel said court to vacate and set aside an order made by said court, dismissing a certain suit therein pending, wherein Frank Williams was plaintiff, and Wager Swayne was defendant, and taxing said Williams with costs.” From the transcript in said cause, upon which this application was based, it appears that Frank Williams brought an action of trespass…

Tried before the Hon. Robert Dougherty. On the 25th April, at the spring term, 1861, of the Tallapoosa circuit court, the appellee, James D. Phillips, recovered judgment against John E. Ashurst for $6831 40; execution was duly issued thereon and delivered to the sheriff, August 1,1861.

Tried before the Hon. S. K. McSpadden. This was a bill in equity, by R. C. Hannah, as executor of the last will and testament of Mansel M. Hannah, deceased, against the administrator and heirs of Thomas K. Lankford, deceased, and sought to set up and enforce an alleged vendor’s lien on certain land of the deceased, for the unpaid purchase-money.

Tried before the Hon. Wm. S. Mudd. The appellant, Washington Moody, having commenced suit against Nelson Davenport, in the circuit court of Tuskaloosa, obtained process of garnishment against Murchison Findley, the appellee, who answered, denying any indebtedness to the defendant, said Davenport.

Tried before Hon. John Henderson. Assumpsit, on account stated by Burns, McRibbin & Co., against the Alabama & Tennessee Rivers Railroad Company. The sheriff’s return of service was as follows : “ Received, January 7th, 1867. Executed by serving a copy on Maj. James Isbell, one of the directors of said road, February 25th, 1867.

Heard before the Hon. S. K. McSpadden. This was a motion by the appellants, to remand this cause to the chancery court of Madison; the decree appealed from having been opened, and the cause re-instated upon the docket by said court, upon their motion, since the appeal to this court. The other facts of the case will be found in the opinion of the court.

Heard before the Hon. N. W. Cocke. The opinion contains the facts of this cause. 1. Held: “ that the wife may deal with her husband or trustee in regard to her separate estate; may go surety for her husband, and mortgage her estate to secure his debt.” — James v. Fish et al., 9 S. & M. 144. 3.

Heard before the Hon. N. W. Cocke. The facts are set out in the opinion. 1. The bills shows the death of Copeland in 1859, and that the claim set forth in the exhibits were not presented to the administrator until March, 1867; seeking to charge an estate, the bill should show affirmatively that the claim is just and not obnoxious to any defense which the law gives to the administrator. 2.

Tried before Hon. George Goldthwaite. This was an application, by Augustus A. Coleman, late judge of tbe 7tb judicial circuit of Alabama, to tbe circuit court of Montgomery, for a 'mandamus, or other appropriate writ, to compel M. A. Chisholm, comptroller, &c., to draw-bis warrant on tbe State treasurer for tbe salary, claimed by said Coleman to be due bim as sucb judge.

Tried before the Hon. John Moore. The opinion contains the facts of this case. The return of the constable shows that the notice was served on Monts as well as on Lagrove. Monts .appeared before the justice of the peace, also in the circuit court, and was represented by counsel. Upon the trial in the circuit court he objects, for the first time, that the notice was not duly served on him.

<p>[MOTION TO SET ASIDE A JUDGMENT OE THIS COURT AND TO GBANT A NEW TBIAD. ]</p> <p>1. Constitution of Alabama; section 2, article 4, of, mandatory in its character ; lato contravening provisions of, null and void» — The 2d section of the constitution of Alabama, that declares, Each law shall contain but one subject, which shall be clearly expressed in its title,” is mandatory in its character, and any law contravening its provisions is null and void.</p> <p>2. Act of December VHh, 1868, entitled “ An act to declare void certain judgments, and to grmvt new trials in certain cases therein mentioned, and to repeal sections 2876 and 2877 of the Revised Code of Alabama; wnconstitutionality of. — The act of the 17th December, 1868, entitled, “An act to declare void certain judgments, and to grant new trials in certain cases therein mentioned, and to repeal sections 2876 and 2877 of the Eevised Code of Alabama,” is such a law. It contains two distinct subjects, to-wit: To declare void certain judgments and grant new trials, &c., is one subject; and to repeal sections 2876 and 2877 of the Eevised Code, is another subject, both of which are clearly expressed in its title, and is, therefore, null and void.</p> <p>3. Same; exercise of judicial power by Legislature. — It is also null and void, because, in the passage of said law, the legislature exercised judicial power, in violation of the 3d article of the constitution of the State.</p> <p>4. Same; bill of rights in violation of. — The said act is in conflict with the eighth section of the bill of rights, which declares that no person shall be deprived of life, liberty or property, but by due course of law.</p> <p>5. Same; constitution of United States, in violation of. — -It is also void, because it violates the 24th section of the bill of rights, that declares, 1 ‘ that no ex post facto law, or any law impairing the obligation of contracts, shall be made and also, that part of the 10th section of the first article of the constitution of the United States, that declares, no State shall pass any ex post facto law, or law impairing the obligation of contracts.</p>

Tried before Hon. Philamon O. Harper. Information in the nature of a quo warranto, at the suit of the State, on the relation of William Seawell, to oust S. S. Gardner from the office of judge of the… Held: and 'many of the principles by which they are controlled, are totally incompatible with our institutions. Article 4, section 20, provides fully as to members of the general assembly. Article 5, section 14, provides as to governor.

Heard before the Hon. N. W. Cocke. This was a bill in equity, exhibited by appellant, against the administrator de bonis non and heirs of John N. Copeland, deceased, and sought an account with the estate for certain valuable improvements erected on the real estate of said decedent, by complainant, under an agreement with the former administratrix of said estate, Mrs. Caroline E. Copeland, a sister of complainant, and now deceased.

Tried before Hon. H. Chamberlain. The facts appear fully in the opinion. The discontinuance of the suit against O. P. Hall, is a discontinuance of the whole action. — See Rebles v. Ford & Fining, 5 Ala. 183 ; Givens v. Robins & Painter, 5 Ala. 677 ; Ivey v. Gamble, 7 Barb. 545. The objection was taken in the court below by motion in arrest of judgment. — See Blount v. McNeil, 29 Ala. 473; Stewart v. Goode & Ulrich, ib. 476. The record shows the objection not to be earlier.

Heard before the Hon. N. Ay. Cocke. The material facts of this case are as follows : The appellant, Thomas J. Cannon, and John N. Copeland were .mercantile partners from 1852 to 1859, when Copeland died. The partnership was insolvent. Copeland had a separate estate of about $25,000, consisting mostly of real property.

Tried before tbe Hon. Thomas J. Woolf. The facts in this case are as follows : On tbe lltb day of February, 1861, Walter H. Grant made bis final settlement in tbe probate court, of bis guardianship of Jesse Jones. On the settlement, tbe court rendered judgment against said Grant, and in favor of Jesse Jones, bis late ward, for tbe sum of $2,666.08, with interest thereon, from January 20th, 1861.

<p>[bill in equity to enjoin sale oe lands, undeb EXECUTION AT LAW. 3</p> <p>1. Injunction,* when writ will lie. — D. sold laud to R., and gave bond for titles. S. recovered a judgment against D., after the contract of sale to R., and did not proceed against D’s interest in the land sold to R., until R. had sold to M., and D. had made titles to M.., — heU, that D. bad no interest in the landsubject to sale under execution, and that M., by bill in chancery, might enjoin S. from.attempting to sell the lands, as the property of D.</p>

Tried before the Hon. S. C. Posev. The facts of the case are fully stated in the opinion. cited the following authorities: KeeUes.v. Ford, 5 Ala. 183; Gazzam v. Bede, 8 Porter, 49; Saddler v. Houston, 5 Stewart & Porter, 206 ; Adlcins v. Allen, 1 Ala. (Minor) 130.

Heard before the Hon. N. W. Cocke. The original bill in this case was filed on the 20th February, 1861, by Charles A. Marston, against Nancy Rowe and Thomas Gleason.

Tried before the Hon. Bush Jones. In the matter of the final settlement of the estate of W. C. Richardson, deceased.

<p>Appeal from tbe City Court of Mobile.</p> <p>Tried before Hon. C. E. Moulton.</p> <p>All the material facts of the case appear in the opinion.</p>

This was au application by John W. Chase for mandamus, or other appropriate writ, to compel the city court of Montgomery, Hon. J. D. Cunningham, presiding, to “ remove the trial of the case of The State of Alabama v. John W. Chase, on an indictment for murder, and now pending in said court, to the nearest county free from exception, according to the law of the land;” petitioner’s application for a change of venue, having been overruled and refused by said court.

Tried before the Hon. C. E. Moulton. The facts are sufficiently set out in the opinion. Counsel for Edgar call the attention of the court to the case in 34th Ala., pages 43 and 48. The court charged the jury, “ that if they believed the evidence, they must find a verdict for the plaintiff, (page 48); an affirmative charge upon the effect of the entire evidence.” There is nothing in the first part of the charge of which the prisoner can complain.

Tried before Hon. C. F. Moulton. On the 11th day of February, 1869, James Mulvey was indicted in the city court of Mobile, for selling vinous or spirituous liquors without license, and on the 14th of April, was tried and convicted, and fined fifty dollars, and taxed with the costs of conviction.

<p>[INDICTMENT EOE BAPE.]</p> <p>X, Verdict; what insufficient to authorize any sentence by the court. — On a trial for the crime of rape, a verdict in the following words : “ We, the jury, find the prisoner guilty as charged in the indictment, and sentence him to imprisonment in the penitential'y, ” is defective, and not sufficient to authorize the court to sentence the prisoner to imprisonment in the penitentiary for life, or for any other term.</p> <p>2. Section 3661 of the Mevised Code; province of jury under. — Under section 3661 of the Bevised Code, the jury must determine not only the character of the punishment, but also its extent.</p>

Tried before the Hon. James Q. Smith. At the spring term, 1869, of Elmore circuit court, two indictments were found against Henry Bryan — one for burglary, and the other for larceny.

Petition by William Whitaker (f. m.) for writ of habeas corpus, or such other remedial process as might secure his discharge from custody, on a charge of “ an assault upon -, with intent to murder him,” the Hon. J. P. O’Connor, judge of probate, having refused the same.

Tried before the Hon. J. Q. Smith. The material facts, and the assignments of error, upon which this case turns, will be found in the opinion of the court; the two exceptions referred to, but not set out in the opinion, and upon which it was held that the ruling o the court below was right, are thus stated in the bill of ex ceptions : “ On the trial of this cause, the State offered a female witness, who was objected to on the part of the defense, on the ground that she was…

Tried before the Horn J. McCaleb Wiley. The facts necessary to an understanding of the points decided, will be found in the opinion. 1. The court erred in allowing Anderson, the party injured, and who, by section 3738 of the Revised Code, was interested, to testify.

Tried before the Hon. J. McCaleb Wiley. The opinion contains the facts of this case. 1. The first charge was erroneous, because it authorized the jury to convict the defendant, although the offense was committed in the connty of Macon. Section 3945 (397) of the Penal Code is unconstitutional. — See § 8 of Declaration of Eights; Armstrong v. The State, 1 Caldwell, 338 ; Bish. Crim. Law, vol. 2, § 837, 2d edition. 2.

Tried before tbe Hon. James Q. Smith. The indictment in tbis case, which was found on tbe 30th day of November, 1865, charged, that before tbe finding thereof, “ Henry Armistead feloneously stole, took, and carried away, one bale of cotton of the value of $200, the property of Wm.

Tried before the Hon. J. McCaleb Wiley. The facts of the case, and the errors assigned, are sufficiently set out in the opinion. 1. The indictment in this case is for “ evading,” under section 570 of the Eevised Code. Mere non-action can not amount to an evasion. — See word “ to evade,” Webster’s Dictionary. 2.

Tried before Hon. W. H. Moore. At the spring term, 1869, of the Huntsville city court, the following indictment was found against Milton Clay, (f. m.) : “ State of Alabama, l In city court of Huntsville, spring Madison county, j term, 1869.

Tried before tbe Hon. J, McCaleb Wiley. At tbe spring term, of tbe circuit court of Barbour county, in the year 1869, tbe appellant was indicted and convicted of an assault with intent to murder one William Russell, and fined four hundred and fifty dollars. It appeared, in evidence on the trial, that tbe assault charged, if committed at all, was for presenting and attempting to shoot said Russell with a pistol, in tbe town of Clayton, in said county, in tbe fall of 1867.

Tried before the Hon. W. L. Whitlock. The facts will be found in the opinion. The appellee now moves the court to dismiss the appeal in this case, because there has been no final judgment rendered in the case.

<p>Appeal from tbe Circuit Court of Dale.</p> <p>Tried before the Hon. H. D. Clayton.</p> <p>The facts appear fully in the opinion.</p>

Tried before Hon. J. E. Abrahams. The opinion contains all the material facts of the case. Appellant had authority to lend his ward’s money. — Walker’s Code, § 2426, 2427. The fact that he lent it to a firm, of which he was a member, without taking security, only rendered him liable in the event of its loss. But it was not lost for the want of security. On the contrary, it was repaid in a currency which he was authorized by law to take.

This was an application, by G. W. Rhodes, for a mandamus, to compel the circuit court of Butler, Hon. P. O. Harper presiding, to transfer a certain cause and the trial thereof, wherein said G. W. Rhodes is defendant, and Lee & Norton plaintiffs, to the circuit court of Crenshaw.

<p>[BILL IN EQUITY TO ENFORCE VENDOR’S LIEN.]</p> <p>1. Statutory sepm-ate estate of ipife; corpus of how can not be bound. — Tbe husband can not bind tbe wife by a submission to arbitration of questions, wbieb relate to tbe corpus of ber statutory separate estate. Sucb submission, to bind ber, must be in ber own name, and be made by ber.</p> <p>2. Same; when note, although payable to husband, constitutes part of. — A promissory note for tbe purcbase-money of lands belonging to tbe separate statutory estate of a married woman, wbieb have been sold by tbe husband and wife, is a part of tbe wife’s separate estate, though such note be made payable to tbe husband ; and the wife, by ber next friend, may file ber bill in chancery, to enforce tbe vendor’s ben against sucb lands, if sucb note is not paid at maturity.</p>

<p>[ACTION ON THE CASE AGAINST SHERIFF. ]</p> <p>1. Sheriff; action on the case, when will not lie against. — L„ the sheriff, having an execution, in his hands against S., levied on, advertised, and sold certain described lands, which were not the property of 8., and afterwards, finding out his mistake, made a conveyance of S.’s lands to the purchaser, ante-dated it as of the date of the sale, whereby S. was evicted from his lands — held, that action on the case would not lie against L., the sheriff.</p>

This was au action commenced in the city court of Selma, by the appellant, N. Woodruff, against the appellee, W. A. Rose, by attachment. The sheriff levied the attachment on five bales of cotton, the property of defendant. At the February term, the defendant appeared, and moved the court to set aside and discharge the levy made; and the plaintiff thereupon moved the court to allow the sheriff to amend his return.

Tried before Hon. John Moore. This is an action commenced, by Butts & Poster, against tbe Selma &, Meridian Railroad Company; by summons and complaint, on the 6tb day of April, 1866, in the circuit court of the county of Dallas, in this State, for the value of thirty bales of cotton. The complaint contains four counts. The first is for shipping said cotton without instructions of the owners, and its loss thereby.

Tried before the Hon. John K. Henry. The appellants, C. T. and Martha A. McConnico, as guardians of Bettie S. Stallworth, commenced a suit in the circuit court of Conecuh county, by attachment, on the 31st of December, 1866, against the appellee, R. P. Stallworth, on a decree of the probate court of Conecuh county, rendered January 30, 1866, in favor of their ward against the said appellee, who was her former guardian.

This was an original application in this court for a mandamus, to compel the probate judge of Wilcox county, to sign a bill of exceptions. It is unnecessary, in the view taken of the application by the court, to give the facts upon which the application was based. Application for mandamus.

<p>Appeal from tbe Chancery Court of Dallas.</p> <p>Heard before tbe Hon. J. Q. Loomis.</p> <p>Tbe facts of tbe case are fully set out in the opinion.</p>

<p>The facts upon which this application is based are fully set out in the opinion.</p>

Tried before the Hon. J. MoOaleb Wiley. The facts appear fully in the opinion. The motion to arrest the judgment ought to have been sustained, because the indictment is defective in not alleging that the key conveyed into the jail, by the prisoner, was an instrument useful to aid the prisoners confined therein to escape.—Penal Code, § 3573, (32;) Anthony v. The State, 29 Ala. 27, and the authorities there cited; Bish. Crim. Law, vol. 1, §§ 518, 523.

Tried before Hon. Thos. M. Arrington. Assumpsit on two promissory notes by E. A. Nichol, surviving partner, against Patrick Toole. Held: the cross-examination of the witness called and sworn by the defendant, was not proper; yet the testimony of the witness, as shown in the bill of exceptions, was not prejudicial to appellant, and he can now claim no advantage in the cause, of an irregular practice, from which no injury resulted to him.

Appear from the Circuit Court of Montgomery. Tried ¡before the Hon. James Q. Smith. Held: that B can only receive $1,000. The proposition needs only to be stated to show its absurdity.

Heard before the Hon. N. W. Cocke. This was a bill in equity, filed by a judgment creditor, to set upon and enforce a lien upon the lands of a deceased debtor,… Held: that while Jackson’s certificate of discharge from all his debts, and consequently from this, as against him was operative, it did not destroy the lien, and that a decree in a modified form, should be rendered, specially authorizing the sale of the. property to which the lien attached, but no other property.

Tried before tbe Hon. C. W. Rapier. The facts of tbe case are sufficiently set out in tbe opinion. The defendants both joined the Confederate army in the spring of 1861, before the bill matured. At its maturity, one was stationed at Pensacola» the other at Fort Morgan. The plaintiff could not approach either place, without permission from the military authorities, to give personal notice. He was not bound to apply for such authority. There was no mail to either place.

This was a motion by the appellants, to have the jndgment of affirmance, rendered in this cause by this court, at the June term, 1868, vacated and declared null and void, and the entry thereof, expunged from the records of the court. The grounds upon which the motion is based, appear in the opinion of the court. The validity of the reconstruction acts of congress, in all respects, is taken for granted, and is not treated as an open question in this case.

This was a bill in equity, exhibited in the chancery court of Mobile, by ¥m. C. Hall, in his own behalf, and as next friend of Joseph, Eliza and Thompson Hall, minors, against their guardian, Gerald B. Hall, and Y. O. Hall, his security, praying for account and discovery, reformation of guardian’s bonds, final settlement, and removal of guardian, and for general relief.

Tried before the Hon. J. K. Henry. The appellees move the court to dismiss the appeal in this case, because the certificate of the clerk to the trans-script does not show that any appeal was taken, and because the transcript does not give tbe court jurisdiction of the case.

Tried before the Hon. Thomas M. Arrington. The opinion contains the facts of the case. 1. Neither the judgment nisi, nor judgment final, against the garnishee, shows that any proof was made that Lewis Owen, on whom (by sheriff’s return) the garnishment and sci. fa. appear to have been served, was President of the Montgomery & Eufaula Eail Eoad Company.

<p>Appeal from the Chancery Court of Mobile.</p> <p>Heard before the Hon. N. W. Cocke.</p> <p>The facts are contained in the opinion.</p>

<p>[MOTION TO DISMISS APPEAL.]</p> <p>1. Appeal; when dismissed.- — If an appeal is taken on a judgment, after it has been set aside and a new trial granted, it will be dismissed on motion of tbe appellee.</p> <p>2. Same; what neeessary before taking, when new trial is granted at appellants instance. — If tbe new trial in sueb a case is granted at tbe instance of tbe appellant, be should, before taking bis appeal, apply to tbe court granting tbe new trial, and bave the order granting tbe new trial set aside.</p>

Tried before tbe Hon. J. B. Appling. This is an application, by William C. Oates, as the administrator, cum testamento annexo, of tbe estate of William J. Ward, deceased, late of tbe county of Polk, in tbe State of Texas, in tbe court of probate of Henry county, in tbis State, for an order for the distribution of tbe estate of said Ward, deceased, in this State. Tbe petition was filed on tbe 21st day of September, 1867, and set for bearing on tbe 28th day of October, 1867.

<p>Appeal from the Chancery Court of Montgomery.</p> <p>Heard before the Hon. N. W. Cooke.</p> <p>The facts appear in the opinion.</p>

Tried before the Hon. Thomas M. Arrington. The facts of the case are fully set out in the opinion of the court. Held: in the case of Bedell’s Adm’r v. Smith, 37 Ala. 625, that the statute of limitations to a suit on a bond conditioned to discharge a duty, was not a good plea, because the statute applied to bonds for the payment of money. This statute, 2540 of the Revised Code of Alabama, is a charge of the common law, and must be strictly construed.

Tried before the Hon. John Mooke, W. H. Griffin, as administrator of the estate of John P. Boyd, deceased, brought this action against Eliza Bland, on an account for storage of cotton. The evidence is set out as follows, in the bill of exceptions: “ The plaintiff proved that John P. Boyd was the owner of a warehouse at White’s Bluff, on the Alabama river, and died in possion of the same, in 1859.

Heard before the Hon. N. W. Cocke. The facts upon, which the case turns will be found in the opinion. Appellants insist that the chancellor erred in his decretal order of reference directing the master to ascertain and report the value of the land, at the date of the contracts, and what the defendant had paid on the same, and comparing the true value with the price contracted to be paid, to report the amount due.

Tried before the Hon. G. W. Thagard. This was a proceeding under chapter III, title 6, part 1, 508 Eevised Code, to obtain permission to erect a dam, for the purpose of erecting a public grist mill, to grind for toll. The facts of the case, and the errors assigned, are set out in the opinion. Insisted, 1.

Heard before the Hon. A. O. Eelder. The opinion contains all the material facts of the case. 1. The court erred in rendering the decree for the complainant, because the bill contains no equity. The complainant’s debt is strictly legal. He has no right, independent of statutory authority, to come into equity, unless he stands as a creditor with a lien, or having exhausted his remedy at law. See the authorities collected. — Shepherd’s Digest, 236 ; Reavis’ Digest, 251.

Tried before the Hon. J. D. Cunningham. This was an application by the State, on the relation of William Falconer, to the city court of Montgomery, for a mandamus to compel the judge of probate of Montgomery county to receive and approve the official bond of relator as tax collector of Montgomery county.

Heard before the Hon. N W. Cocke. The bill in this case was filed on the 12th day of October, 1867, by the Mobile Trade Company, a corporation existing under and by virtue of the laws of Alabama, against E. B. Lott, who was tax collector for Mobile; and sought to enjoin the collection of the State tax, “ at the rate of one dollar per ton of the registered tonnage,” &c., and the per cent, added for county and school purposes, assessed upon twelve steam-boats, the property of…

Tried before the Hon. J. E. Conoley. The facts of the case and the errors assigned, are sufficiently set out in the opinion.

Tried before the Hon. Thomas M. Arrington. The opinion contains the material facts of the case. 1. The city court had no jurisdiction of the motion.

Tried before the Hon. John Elliott. This was an appeal by Gustavus Horton, judge of probate, from an order of the circuit court of Mobile, granting a peremptory mandamus, commanding him to pay over the sum of $6,095 02 of taxes, in his hands, to the Mobile school commissioners, for school purposes. The other facts of the case appear in the opinion. 1.

Tried before the Hon. Geo. W. Searcy, as next friend for Bryant C. Holmes, on the 14th of December, 1868, petitioned the probate court to annul and declare void a decree rendered by that court on the final settlement, by the appellees, upon their removal of their administration of the estate of Bryant Holmes, deceased.

Heard before the Hon. A. C. Felder. On the 13th day of February, appellants executed a note as follows: “ Montgomery, Ala., February 13, 1867. $1,072.88. On the first day of November next, we, or either of us, promise to pay William R. Pickett, administrator on the estate of A. J. Pickett, or order, one thousand and seventy-two dollars and eighty-eight cents in gold, or its equivalent, for value received, with interest from the 13th day of January last.

Heard before the Hon. A. C. Eelder. James L. Holt, Moses W. Garrison, and D. M. Snow, on the 18th day of September, 1868, filed their bill of inter-pleader, in the chancery court for Montgomery county, in this State, against A. E. Given & Co., and E. O. Eandolph, as the administrator of the estate of Mrs. Corinne Eandolph, deceased, for the purpose of ascertaining to which of these parties they should pay the amount of a certain promissory note referred to and set out in…

Motion in this court for certiorari, and if refused, to submit cause, based on following facts : Erom the transcript filed in this cause, it appears that J. & M. Caldwell brought an action of assumpsit against J. P. Baldwin, in the circuit court of Pike, recovering a judgment against him by default. S. M. Smyth, county treasurer of Pike, was summoned to answer as garnishee.

Tried before Samuel F. Rice, esq., an attorney of the court, under § 758 of Revised Code. The facts of the case are set out in the opinion. The following is the order referred to : “ Headquarters District of Alabama, Montgomery, Alabama, November 7th, 1867 — General Orders No. 18.

<p>Appeal from the Circuit Court of Barbour.'</p> <p>Tried before tbe Hon. H. D. Clayton.</p> <p>Tbe facts of tbe case appear in tbe opinion.</p>

Tried before the Hon. J, McOaleb Wiley. In this cause it was agreed by the counsel of the parties, that “ inasmuch as the legislature has not passed any act to set in active operation the proviso to the 5th section of article VI of the constitution, conferring jurisdiction upon circuit courts in certain chancery cases, they will not raise any question as to the jurisdiction of the circuit court of Henry county in this case, but consent that said court take and exercise…

<p>[CONTEST 03? INSOLVENCY 03? ESTATE IN 3?3SOBATE C0TJ3JT.]</p> <p>1. Administrator; duty of, on petition to declare estate insolvent. — An administrator, who applies to have the estate which he represents declared insolvent, should file in the office of the probate judge of the proper county, in the case of his administration, a report in writing, “that such estate is, to the best of his knowledge and belief, insolvent.”</p> <p>2. Same. — And with such report, he should also file the three statements in writing, required by section 2197 of the Revised Code. And this report and statements should be accompanied by the administrator’s affidavit, that the same are “correct, to the best of his knowledge, information and belief.”</p> <p>3. Estate; when eon not be declared insolvent. — An estate can not be declared insolvent, so long as the available assets are greater in amount than the unpaid outstanding claims against the estate.</p> <p>4. Administrator ; duty of. — It is the duty of an administrator to receive the assets of the estate, collect the debts owing the estate, pay the claims against it, in the order of their preference, and the residue, if any, distribute among the persons entitled to it, according to law. If an administrator proceeds out of this order, he does so at his own peril.</p> <p>5. Same. — It is the duty of the administrator to proceed, as soon as he reasonably can, to collect the debts of the deceased. If they are lost by his unreasonable delay, he will be responsible for such loss. And a debt which could have been collected by due diligence will be reckoned as assets, upon an application to have the estate declared insolvent.</p> <p>6. Mefusal to declare insolvent; when no bar to second application. — The judgment on one application to have an estate declared insolvent, is no bar to a second application upon a different state of facts.</p>

Tried before Hon. H. D. Clayton. The material facts of the case will be found in the opinion. Held: the court below erred in admitting evidence, without producing the writing or accounting for its non-production. — 9 Foster’s Eep. 199; 2 Ohio State Eep. 241; 12 Wheaton’s Eep. 70. A collector de facto may make a sale, as well as a collector de jure. — 24 U. S. Dig., p. 602, § 126.

<p>[motion fob affiemance of judgment on oebtificate.]</p> <p>1. Appeal; to what term taken. — An appeal should betaken to the next ensuing term after it is granted; otherwise it will be dismissed.</p> <p>2. Appellee; when entitled to have his judgment affirmed. — The defendant in error is entitled to have his judgment affirmed, on production of his citation or certificate in error, any time before the record is filed and error assigned, after the first three days of the term to which the appeal is taken.</p>

Tried before the Hon. H. D. Clayton. This was an action brought by D. M. Young, appellee, against John Metcalf, appellant, on the 22d day of September, 1865, to recover damages for the wrongful and vexatious suing out an attachment against appellee, on the ground that he was about to remove out of the State, so that the ordinary process of law could not be served on him.

Tried before the Hon. Thos. M. Arrington. The opinion gives the facts upon which the case turns. The amendment asked by the plaintiff in the court below, to strike out the words in the complaint, “ who is sued as executrix of Jesse P. Taylor, deceased,” was properly allowed by the court, being merely descriptio personae.

Heard before the Hon. N. W. Cooke. The bill in this case, which was filed by the appellee against the appellants, alleges that one Hooks and John B. Martin sold the land described in the bill to Mrs. Mary Molton, now, and at that time, a married woman, and the wife of Thos. J. Molton; that she paid $4,000, and with Thos.

Tried before the Hon. S. K. McSpadden. This was' a bill in equity filed by appellee, against appellants, to subject certain lands, described in the bill, to complainant’s lien for the unpaid purchase-money therefor.

This was a motion, by the appellee, to dismiss the appeal in this cause, “ on the ground that the appeal was taken without the knowledge, authority, or consent of the appellant, and appellant prays that the appeal may be dismissed.” In support of the motion, appellee filed the following statement: “ In this cause, the undersigned was, by his own consent, made a party defendant (in the court below), before judgment, for the purpose of enabling the plaintiff below to ascertain…

Tried before the Hon. W. B. Wood. Thomas Bibb, of the parish of La Eourche Interior, in the State of Louisiana, made his last will and testament, in which he disposed of a very large estate, both real and personal; a part of which lay in the county of Limestone, Alabama. This will bears date the 14th day of Eebruary, 1839.

Heard before the Hon. J. Q. Loomis. The facts of the ease are set out in the opinion. The material portion of the evidence of the witness, Burke, to which reference is made in the opinion, is as follows : * * * * * -x- -x- “ I knew William H. Pledger in his life-time; he was the father of complainant. He died some time in the year 1858, in Wilcox county.

Tried before the Hon. Thomas M. Arrington. In 1861, B. P. Loftin recovered a judgment in the circuit court of Montgomery against Briton West, and by virtue of an execution issued thereon in 1866, Loftin caused Johnson, the sheriff, to levy on and sell one bale of cotton, the property of the plaintiffs, who brought suit against said Johnson and Loftin, to recover damages for the conversion of said cotton.

This was a motion by appellee to dismiss the appeal in this case, which was brought up from the probate court of Wilcox, on the ground that there has been no final judgment in the court below. The other facts of the case will be found in the opinion of the court.

<p>[BUjIi IN EQUITY TO SUBJECT SEPARATE ESTATE OE A MARBIED WOMAN TO PAYMENT OE A PROMISSORY NOTE MADE BY HER, AND ENDORSED BY HER, AND BY HER HUSBAND AND TRUSTEE.]</p> <p>1. Original and amended hills ; what must he. — The original and amended bills form but one suit, and tbe grounds of relief must be consistent throughout the whole.</p> <p>3. Sill in chancery to subject separate estate of married woman; what it should disclose. — A bill in chancery against a married woman and her husband, for the purpose of charging her separate estate for the pay- . ment of a note made by her, payable to her own order, and endorsed by her, her husband, and her husband as trustee, to a third person, should disclose whether the estate thus sought to be condemned has been created by statute or otherwise.</p> <p>3. Bill in chancery; omission to do what, renders demurrable. — A bill in chancery, or an amended bill, is demurrable, if it omits the “note in writing at the bottom of the bill,” as required by the 10th rule of chancery practice.</p> <p>4. Amended bill; what must show; construction lohich will be put on bill filed against separate estate, which is silent as to the manner in which it is held. — An amended bill in chancery must show a narrative of facts cognate to the facts set out in the original bill. An original bill which alleges that a married woman has a separate estate, without disclosing in what manner it is held, whether under the statute or not, will be construed to be held under the statute, upon the grounds that a pleading is to be taken most strongly .against the pleader and in favor of the •other party. And if such construction, in favor of a married woman, requires that her estate shall be held under the statute, it will be so made as to treat her estate as one held under the statute; since, generally, a separate estate held under the statute is more favorable to a married woman, than one held in a different manner.</p> <p>•5. Original and amended bill; what variance between, is sufficient cause of demurrer. — An amended bill, which shows that the title to a married woman’s separate estate is one created by deed to a trustee, to hold for .her benefit, for her life, with remainder to her children, is inconsistent and variant from a title by statute ; and such inconsistency between the original and amended bills, is sufficient cause of demurrer.</p>

Tried before the Hon. C. W. Rapier. The facts of this .case are identical with those stated in Lott, Tax Collector, v. Mobile Trade Co., p. 578, except that in this case the appellees paid the tax under protest, and brought suit afterwards to recover it.

Tried before Hon. W. J. Harralson. The complaint in this case is as follows :• : Vm. Freeman, A. N. Lowry,. B. L. Elrod, W. A. Elrod, and Wm.

Tried before the Hon. C. W. Rapier. The complaint in this cause contained two counts, one for money had and received, and a special count on a due-bill or promissory note, of which the following is a copy : “ Mobile, Ala., Oct. 10th, 1865. Borrowed and received of Messrs.

Tried before the Hon. John K Henry. This was a motion by the sheriff of Wilcox county, for instructions as to the application of money made under executions, and, as appear from the bill of exceptions, was based on the following state of facts : “ On the 18th day of April, 1867, Gertrude Jones recovered a judgment in the circuit court of Wilcox county, against M. W. Creagh, for the sum of $13,955 60, and costs of suit, on which judgment execution was issued, and received by…