Volume 44 — Alabama Reports

Tried before the Hon. P. O. Harper. The opinion contains a full statement of the facts of the ease. 1. What is meant by being put in jeopardy? — See Bouv. Law Dictionary; Con. of the State of Alabama, § 13; see, also, Bill of Rights. 2.

<p>Arpeal from the Circuit Court of Wilcox.</p> <p>Tried before the Hon. P. O. Harper.</p> <p>The facts are stated in the opinion.</p>

Tried before Hon. J. McCaleb Wiley. The facts are fully stated in the opinion. The demurrer to the indictment should have been sustained. Section 4262 of the Code prescribes what statements a petition “ must contain ” ; what is material on such application is thus fixed by law. All other statements may be left out of the petition, or if in it, may be stricken out, and still leave the petition perfect.

Tried before the Hon. C. F. Moulton. Williams, the appellant, was indicted at the June term, 1869, of the city court of Mobile, for bigamy; went to trial on the plea of “ not guilty,” was found guilty, and sentenced to the penitentiary for two years.

Tried before Hon. J. McOaleb Wiley. The appellant, George Carter, was indicted at the spring term, 1869, of Barbour circuit court, for “ dealing in or selling tobacco, without license, and contrary to law,” &c. The agreed facts of the case were as follows': “ The defendant, within the time covered by the indictment, being engaged in carrying on his own, a general dry-goods business, as a merchant in the city of Eufaula, in said county, and only having tobacco in small…

Tried before Hon. W. H. Moore. Joseph DePbue was indicted and tried for manslaughter in the first degree, at the August term, 1869, of the Huntsville city court, found guilty and sentenced to the penitentiary for three years.

Tried before Hon. J. D. Cunningham:. Tbe appellant was convicted on an indictment for an assault with intent to murder, under tbe following circumstances : Two policemen, Ed. Williams and another, of tbe city of Montgomery, under a verbal order from tbe marshal of tbe city, arrested tbe accused just outside of tbe corporate limits of tbe city, but within tbe county of Montgomery, and brought him within tbe city boundary.

<p>[INDICTMENT EOB BUBGLABX. ]</p> <p>1. Charge to jury; lohat improper, when evidence is prima facie only. — On the trial of an indictment for burglary, a charge by the court, “that if the jury believe the evidence they must find the defendant guilty,” is improper, when the only evidence of guilt is prima fade, and founded wholly on the fact of the possession, by the accused, of the stolen goods.</p> <p>2. Proper practice in such case. — The fairer practice in such cases is for the court to charge the law and leave the facts wholly to the jury.</p> <p>3. Possession of stolen property; explanation of, propei• evidence to go to jury. — One found in possession of a watch alleged to have been taken from a shop by the breaking into and entering the same with intent to steal, may explain his possession, and this explanation may go to the jury, with the proof of possession.</p>

Tried before Hon. John Henderson. This case was submitted on written agreements of the parties, at the June term, 1869, and has been held under advisement until the present term. The suit originated and was commenced in the circuit court of Jefferson county.

Tried before Hon. L. R. Smith. The indictment in this case charges, “ that before the finding of this indictment, Jerry Hood, (f. m.,) on application for suing out an attachment in a civil action in the circuit court of Pickens county, in which one Thomas J. Coleman was defendant, and said Jerry Hood, (f. m.,) plaintiff, being duly sworn by the clerk of said court who had authority to administer such oath, falsely swore that he had reason to believe that said crops,…

<p>[PETITION TO EEOBATE COUET TO AMEND AND COMPLETE PAETIAL DECEBE, BENDEBED BX IT, AT A SUBSEQUENT TEEM AGAINST EXECUTCE WHO HAD MADE EINAL SETTLEMENT.]</p> <p>1. Executor, final settlement of; tohat order probate court lias not jurisdiction to malee. — After a final settlement of an executor’s accounts, the probate court has no juris'diction to entertain a petition, by a distributee, to complete a decree rendered against the executor on partial settlement, and to issue execution upon it.</p>

Tried before Hon. George Goldthwaite. This was an action on a promissory note, executed on the — day of January, 1865, for the hire of a negro woman, a slave, and several children, for the year 1865. No pleas appear in the record. The case was tried before a jury and resulted in a verdict for the appellee, the plaintiff below.

<p>[bill in equity to set up and enforce vendor’s LIEN FOR UNPAID PUB-' CHASE-MONEY OF LAND.]</p> <p>1. Iden for unpaid purchase-money of land. — M. sold and conveyed by deed, with full warranty of title, in 1852, a tract of land to H. for §800. Of this sum, S300 were paid at the making of the deed, leaving a balance of $500 of the purchase-money unpaid. For the payment of this $500, H. executed his bond to M., of the same date with that of the sale, with this condition : “If the said title (the warranty deed) shall he sustained, and his (M.’s) right to make said deed shall be established, in a suit about to be commenced against me (H.) for said land, - so that said title shall be declared a good and lawful title to said land, then the above bond shall be of full force against me (H.) for the payment of the money therein specified; but if such title shall fail, then I (H.) am bound to deliver said deed to M.as cancelled, upon which he (M.) is to deliver up the bond as cancelled.” H. went into possession, under the contract of sale, and died in possession, and his distributees and representatives continued in the possession of the land after H.’s death, up to the filing of the bill, in February, 1862. No suit was ever brought against H. for the land, as was apprehended at the making of the bond, and nothing appeared to threaten the legal sufficiency of the title from M. to H. M. died in Georgia, in 1856, and his widow administered on his estate in that State, and thereafter was married during her administration to E., and E. and his wife, as administrator and administratrix, in Georgia, of M.’s estate, transferred and assigned the bond for $500 to Mahone, the complainant: Sold, — that the bond in the possession of Mahone, as transferree, is a lien upon said land for the unpaid purchase-money, and the suit to enforce the same was not prematurely brought.</p> <p>2. Vendor’s lien; what not destroyed by. — The failure to present the bond, for the balance of the unpaid purchase-money, to the administrator of H., within the time required by law to prevent a bar, does not cut off the vendor’s lien ; if only cuts off the right of the transferree to participate in the distribution of the estate of H. with the other creditors, who have duly presented their claims.</p> <p>3. Foreclosure, right of; when barred. — The right to forclose, in such a case, is only barred when a mortgage, for like purpose, would be barred.</p>

Tried before Hon» W. J. Habbalson. The facts of this case are sufficiently set out in the opinion.

<p>£ ACTION, ONDEB TSE COM3, BY INDORSEE AGAINST TEE INDORSES OF BITS, OF EXCHANGE.]</p> <p>3. Complaint; form of, as prescribed by Code, token mfjkient. — In an action by the indorsee of a bill of exchange against the indorser, a complaint that substantially conforms to the form of a complaint, in such a case, must be held to be a good complaint, whether the bill be or be not payable at a particular place.</p> <p>2. Same; plea, what is good, in -such ease. —In such a ease, a plea that states that the bill was drawn and indorsed by the defendant for the accommodation of the acceptors, and without consideration, and was at the same time delivered to the acceptors, and that the plaintiff acquired the bill after maturity, and that at the maturity thereof the acceptors were indebted to the defendant in a sum larger than the amount due on the bill, is a good plea. Such facts, if true, are sufficient to overcome the presumption that the plaintiff is abona fide holder for value — and to entitle the plaintiff to a recovery he must show when he acquired the bill, and that he is a bona fide holder for value, and without notice, &e.</p> <p>3. Same; evidence, what error io exclude on plea of non assumpsit with leavet $e. — On the trial of such a ease, on the plea of non assumpsit, with leave to give in evidence any matter that may be a defense to the action, if the court excludes evidence, which, with other evidence that is admitted, tends to show that the defendant has a good defense for the reason that the plaintiff, as to him, is not a bosta fide holder of the bill, for value, it is an error for which the judgment will be reversed and the cause remanded.</p> <p>4. Charge to jury ; what erroneous.- — On the trial of such a case a charge of the court to the jury, that if they believe the evidence, the plaintiff is entitled to recover, is erroneous, when the evidence tends to show that the bill was drawn and indorsed without consideration, and that the plaintiff acquired it after dishonor.</p> <p>5. Same; when only suck charge should be given. — Such a charge should never be given, except in a very clear case — a case free from all doubt —inasmuch as it may encroach upon the province of the jury.</p>

<p>Appeal from tbe City Court of Mobile.</p> <p>Tried before Hod. C. E.’ Moulton.</p> <p>Tbe facts upou which tbe case turns are sufficiently set out in the opinion,</p>

Heard before Hon. N. W. Cocke. This was a bill in equity filed by Eliza J. Burch, the appellant, against the appellees, seeking to set up and enforce a vendor’s lien on certain land described in the bill, for the unpaid purchase-money thereon. The land in question was sold by the appellant, Mrs. Eliza J. Burch, in 1859, to one of the appellees, A. J. Burch ; Mrs. Burch, giving a warranty deed in fee to the purchaser, and the purchaser giving his note for the purchase-money.

Tried before Hon. Littleberry Strange. This was an application by the appellants, as executors of the last will and testament of W. B. S. Gilmer, deceased, to the circuit court of Chambers county, to compel the court of county commissioners of said county of Chambers, to levy a tax to pay certain warrants, issued by said court of county commissioners during the years 1862-3-1, the property of their testator.

Tried before Hon. J. McCaleb Wiley. The appellant sued the appellee on the 10th of September, 1868, on a promissory note which was due the 1st day of January, 1861. The defendant pleaded the statute of limitations of six years, and upon this plea issue was joined The note being the only evidence in the case, the court instructed the jury to find for the defendant, and the plaintiff excepted, and now assigns the charge of the court for error.

<p>[APPEAL FROM ORDER OF CIRCUIT COURT, DISMISSING CASE OUT OF COURT AND TAXING PLAINTIFF WITH COSTS, AFTER GRANTING A NEW TRIAL IN THE CAUSE, WHICH HAD BEEN AFFIRMED BY SUPREME COURT, ON DEFENDANT’S APPEAL.]</p> <p>1. Circuit court; jurisdiction of. — The circuit court, neither in vacation nor in term time, hath any power to grant a new trial, on the application of the defendant, in a cause which has been affirmed in this court, on his appeal.</p> <p>2. Same. — If such new trial is unadvisedly granted by the circuit court, it is its duty, on motion of the plaintiff in said cause, to set aside and vacate said order granting a new trial, and to strike said cause from the docket.</p> <p>3. Appeal; what such final judgment, as will authorize. — If the circuit court refuses to do this, and on plaintiff’s refusing to proceed further with said cause, the said circuit court thereupon dismisses said cause out of court, for want of prosecution, and taxes the plaintiff with the costs, such judgment is a final judgment, upon which an appeal may be taken to this court.</p> <p>4. Erroneous judgment, as in this ease; what directions will he given on reversal of. — Such a judgment is erroneous, and will be reversed and remanded, with directions, to said circuit court, to set aside and vacate said order granting a new trial and to strike said cause from the docket, and to order the clerk of said circuit court 1.0 issue execution on said judgment of said court, in favor of said plaintiff, as affirmed in this court.</p>

Tried before Hon. L. B. Smith. The appellees were sued on a promissory note, for the sum of six thousand dollars, made by them on the 18th of June, 1863, and payable to plaintiff or order one day after date. The defense set up was, that the consideration of the note was Confederate treasury-notes, commonly called Confederate money, loaned by tbe plaintiff to them on the day the note bears date.

This was a motion for a rule nisi to issue to the circuit court of Montgomery, to show cause why a mandamus should not be issued to compel said court to declare void, vacate and set aside, a certain judgment (more fully set out in the opinion), and to grant a new trial, &c., and for such other remedial writ or process, as might be necessary, the court below having refused to set aside said judgment, &c. The facts upon which the application was based, as well as those in…

<p>[ACTION ON PROMISSORY NOTE. ]</p> <p>1. Promissory note, payee of; presumption prima facie of title in. — In an action by executors on a promissory note, found by them among the papers of their testator, and not payable to him, but to a third person, in which the defendants filed a sworn plea that the said note was given and payable to said third person, and never endorsed or assigned to plaintiffs’ testator; and that the plaintiffs had no interest or title in said note, and where the evidence is contradictory — that on the part of the plaintiffs tending to show that the said note had been transferred by the payee, and that on the part of the defendants, that there had been no such transfer, but that the note was still the property of the payee— it is an error, for which the judgment will be reversed and cause remanded, to refuse to give a charge, in writing, asked by the defendants, that the note being payable to a third person, the law piresumes him to be the owner until the evidence shows that his title to the note has terminated.</p>

<p>[TBOVEB BY ADMINISTEATOB AGAINST WIDOW EOB CONVEESION OE EEESONAD CHATTELS, CLAIMED BY HEE TJNDEE PAEOL GIET EEOM HUSBAND DUEING COVEETUEE. ]</p> <p>1. Gift to wife during coverture ; husband may malee, of personal chattel, by parol. — Under the statutes of this State, the husband may make a valid gift by parol, of personal chattels, to the wife during coverture, and the title vested in her thereby, is good at law, without a resort to equity.</p> <p>S. Same; what gift is subject to.- — The wife takes such a gift from her husband, subject to the just claims of his creditors existing before the gift, and to all the equities of good faith and fair dealing.</p> <p>3. Manual delivery; when not necessary. — Where the gift consists of a ponderous article, or things not capable of handling, as, for instance, a carriage and horses, there need not be an actual manual delivery of the property to the wife ; but any circumstances amounting to a clear demonstration of the intention of the donor to transfer, and the donee to accept, the property given, and which put it in the power of the do-nee, or give the donee authority to take possession of the thing given, are enough to complete the right. And these circumstances are to be left to the jury.</p>

Heard before Hon. A. C. Felder. This was a bill in equity filed by the appellant, Arnold, against the appellee, Fowler, seeking to amend, correct and reform the contract evidenced by the following instrument in writing : “ Received of Lundy & Lapsley, $3,235 82, in full for 21 bales of cotton, weighing 12,149,pounds, and I promise to keep said cotton on my plantation under shelter, off the ground, and secure from stock, and further promise to deliver the same at my nearest…

Tried before tbe Hon. James Q. Smith. The appellant, as plaintiff, and executor of Mrs. Ann Elmore, deceased, brought suit in the circuit court of Lowndes county, to the fall term thereof, in the year 1867, against the appellee, as defendant, on a promissory note for two thousand two hundred and twenty-five dollars, made by the defendant on the 29th day of April, in the year 1856, and payable to the plaintiff, as executor, &c., as aforesaid, and due twenty-four months after…

This was an application for a writ of mandamus, or other appropriate writ or process, to compel Hon. John D. Cunningham, judge presiding in the city court of Montgomery, to vacate and set aside a certain order made by said court, vacating and annulling a judgment rendered in a cause in said court in February, 1865, wherein Norton & Shields were plaintiffs, and Mary C. Pierce, defendant, and granting a new trial therein.

<p>[INDICTMENT TOR MADICIOTJS MISCHIEF.]</p> <p>1. Indictment, containing hut one count, for malicious injury to a “mare and an ox” ; what proper charge on trial of. — On the trial of an indictment, for malicious mischief, containing but one count for an injury to “a mare and an ox,” proven to have beenjcommitted at different times, it is error to refuse to charge that “ if the State had failed to prove that the mare and ox were injured a’t the same time, or so near each other as to constitute the same offense, then the defendant is not guilty, as charged in the indictment. ’’</p> <p>% Hame; when charge must he provedas laid. — An indicment for malicious mischief should charge such offenses in two counts, or in the alternative in tho same count; or the charge must be proved as laid.</p>

<p>Appeal from the City Court of Montgomery.</p> <p>Tried before the Hon. John D. Cunningham.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>[ACTION COMMENCED BY OEIGINAIi ATTACHMENT.].</p> <p>1. Section 2928 of Revised Code; what statement equivalent to that required by sixth subdivision of. — In an affidavit for attachment, a statement that the defendant “ is endeavoring fraudulently and clandestinely to dispose of his effects,” is equivalent to the case prescribed in the 6th subdivision of section 2928 of the Revised Code.</p>

<p>Appeal from the Probate Court of Jackson.</p> <p>Tried before Hon. David Tate.</p> <p>The facts are sufficiently stated in the opinion.</p>

Tried before Hon. William: Miller. On the 5th September, 1864, the appellee, Spencer, was appointed guardian of W. E. Rogers, a minor, who died intestate in October, 1866. On December 3d, 1866, said Spencer was appointed administrator of the estate of his deceased ward.

Tried before Hon. J. MoOaleb Wiley. This was an action by the appellant, as administrator, &c., against the appellees, founded on fifteen separate promissory notes made by them on the 12th day of December, 1864, due twelve months after date, and “ payable in the common currency of the country, ” at maturity, for the purchase of lands sold them in 1864 by the plaintiff, as administrator of William Roach, deceased.

Tried before the Hon. W. B. Wood. • Judgment by default on promissory note.

<p>Appeal from the Circuit Court of Henry.</p> <p>Tried before Hon. J. McGaleb Wiley.</p> <p>The facts are sufficiently stated in the opinion.,</p>

<p>[bill in equity — BLEA to jurisdiction.]</p> <p>1. Section 1, article 8, of constitution of Alabama / effect of, on venue of cause in chancery. —Section 8 of article 6 of the constitution of this State does not confine the venue of a chancery cause to the county of the defendant’s residence, or to that in which the property, the subject-matter of controversy, is situated. (Peters, J., dissenting.)</p>

Tried before Hon. J. D. Cunningham. The facts are sufficiently stated in the opinion. The appellees submit a motion to dismiss the appeal, because there has been no such final judgment in the court below, as will authorize an appeal.

Heard before Hon. Adam C. Eelder. The main facts of this cause are as follows : In the year 1860, L. H. Robison, the husband of complainant, at the request of his mother-in-law, who was the executrix of the estate of complainant’s father, bid off, at a sale made by the administrator of one Hawkins, deceased, the lands described in the bill, and executed his promissory note therefor, payable 12 months after date.

Tried before Hon. J. D. Cunningham. McAfee, the solicitor for Talladega county in this State, on the 12th day of July, 1869, applied to the Hon. John D. Cunningham, judge of the city court of Montgomery, for a rule nisi for mandamus against E. M. Eeynolds, as the auditor of the State, for the purpose of compelling said Reynolds to issue a warrant -to said McAfee, on the State treasurer, for the amount alleged to be due him as solicitor as aforesaid, at the rate of two…

' Heard before Hon. Adam C. Felder. This was a bill in equity, exhibited by the appellee, Scott, against the appellants, B. K. Ponder and F. H. Cobb, and sought to enjoin Ponder from selling certain lands mortgaged by Cobb to Ponder, and also to himself, on the same day, under an agreement to which all the parties to the suit were parties, on the ground that the mortgage executed by Cobb to Ponder, was given to secure a greater sum of money than the amount, which, by the…

This was a petition to this court, by R. H. Sims, as executor of Berry Owens, deceased, to establish a bill of exceptions, and also for a writ of mandamus, to compel the Hon. J. Q. Smith, judge of. the circuit court for Montgomery county, to vacate and set aside a certain order made by him in said court, &o. The facts necessary to an understanding of the opinion, are set out therein.

The appellee, in this cause, moves to dismiss the appeal, because, since said appeal was taken and while the same was pending in this court, the court below, on motion of the appellant, set aside the final judgment appealed from and granted a new trial in the cause, and because there is now no final judgment from which to appeal. The appellant resists this motion and submits a counter motion for an alias certíorari, &o. The facts of the case will be found in the opinion.

Tried before Hon. Thomas M. Arrington. The complaint in this case is as follows: “ The plaintiff claims of the defendant five thousand dollars, due on a bill of exchange which was drawn by J. W. Echols, dated Montgomery, Ala., January 11th, 1860, and payable on the first day of January, A. D. 1861, for the sum of five thous- and dollars, to the order of the president and directors of the Montgomery & Eufaula R. R. Co., which said company, by its then president, Arnold Seale,…

1. Certiorari; when proper remedy. — Certiorari is a proper remedy to remove, for revision, a cause from the probate to the appellate court, where the order, decree, or proceeding, complained of, is claimed to be void. 2. Same; what should he done in primary court before applying for.- — Amotion to set aside the void action ought, however, to be first made in the primary court. 3.

Heard before Hon. B. B. McOraw. The bill in this case was dismissed, “ upon motion of respondents, for want of equity,” on the eleventh day of February, 1869, before the cause was brought to issue upon the merits. It was filed on the twentieth day of May, 1867, in the chancery court of Talladega county, by Mrs. Margaret A. Barclay, “ as executrix and legatee under the will of George P. Brown, deceased,” against the heirs-at-law of said Brown and others, as defendants.

<p>[discontinuance — seevice oe ebocess.]</p> <p>3. Discontinuances what will operate as. — Where several executors or administrators are sued, service of summons on one is sufficient, and a discontinuance, without cause apparent on the record, as to one, will he a discontinuance of the action.</p>

<p>[APPEAL EBOM OEDEB OP CIEOUIT COUBT SETTING ASIDE ITS JUDGMENT AT A SUBSEQUENT TEEM, AND GBANTING A NEW TEIAL.]</p> <p>1. Appeal; when does not lie. — An appeal will not lie to this court, to revise and correct an order of the circuit court, made at a subsequent term, setting aside a judgment of said court, and granting a new trial. Such an order is not such a final judgment as will authorize an appeal to this court, and if an appeal be taken on such order, it will be dismissed by this court, at the costs of the appellant.</p> <p>2. Mandamus; remedy to avoid such order. — The remedy to avoid such an order is to apply to this court for a mandamus to require the court, making such order, to set aside the same, and to re-instate the judgment so set aside, and to issue execution on the same.</p>

<p>[WHAT CONSTITUTES EEOOBD — BILL OE EXCEPTIONS.]</p> <p>1. Bill of exceptions ; when does not constitute part of the record. — A bill of exceptions not signed nor dated, constitutes no part of the record of the cause in which it purports to be taken ; nor does the certificate of the probate judge whose signature was required, that the transcript contained the bill of exceptions, cure the defect.</p>

<p>[ACCEPTANCE OE SERVICE — CONSENT TO RENDITION OE JUDGMENT, IE CAUSE OE ACTION RE NOT SETTLED BEFORE FIRST TERM OE COURT.]</p> <p>X. Summons and complaint, acceptance of service of, by one member of firm ; how binds firm. — Acceptance of service of a summons and complaint by one partner in the name of the partnership, is equivalent to service on all in respect to their joint property.</p> <p>2. Filing pleas; effect of. — Filing pleas in defense of an action is a recognition by the defendant of the case as in court, and is a waiver of any defect or irregularity in the service of process. '</p> <p>3. Acceptance of service, indorsement of agreement on; what, will not pi'eclude defendant from contesting action. — An indorsement on a summons by the defendant that he consents to • a judgment being taken against him at the earliest term of the court at which it can be rendered, when no delay or advantage accrues thereby to the defendant, is without consideration, and will not preclude him from defending the suit, if he revokes his consent before the judgment is rendered.</p> <p>Note by Reporter. — At a subsequent day of the term, the appellee applied for a rehearing, to which the following response was made:</p> <p>B. F. SAFFOLD, J. — The appellee, on application for rehearing, insists that there was a consideration sufficient to support the obligation of the appellants that judgment should be taken against them. Se says they expected to, and did save some costs, and that he suffered detriment by the precedence which other causes obtained on the docket. Such considerations can not be regarded as inuring between the parties. The case was to be put on the docket at the first term after the acceptance of service. If it could not be then tried, it can not be held the fault of the defendant.</p> <p>It is not denied that courts have power to enforce, in a summary way, agreements relative to the trial and disposition of causes before them. But this is more than such an agreement. The right of one partner to bind another in this way not to defend a suit; the subsequent payment of the money; fraud in making or obtaining the agreement ; the existence of some valid defense, are some of the questions which might arise in such a case. The con- ■ struction contended for by the appellee would even preclude the grant of a new trial, no matter how unjust the recovery might be shown to have been. It is against the spirit of the law to enforce such an agreement.</p> <p>The rehearing is denied.</p>

Tried before Hon. J. McCaleB Wiley. One of the appellees, John N. Davis, purchased from the appellant certain slaves, in 1863, and after the emancipation proclamation of the president df the United States. For these slaves, Davis executed several promissory notes, some of which fell due after the war.

<p>Appeal from the Circuit Court of Barbour.</p> <p>Tried before Hon. J. McCaleb Wiley.</p> <p>The facts are fully stated in the opinion.</p>

<p>[action on oeetificate of deposit.]</p> <p>1. Service of process ; who may lawfully accept. — In a suit against a corporation, any officer, agent or employee thereof, on whom the summons and complaint may be executed, is competent to accept the service.</p> <p>2. Service of process, acceptance of; what not evidence of. — An acceptance • of service by one secretary of the corporation, is not of itself sufficient evidence that he bears that relation to the corporation.</p> <p>3. Judgment entry, recital that “service was proven to satisfaction of the court;” how construed. — A recital in the judgment .entry that “service was proven to the satisfaction of the court,” will be intended to mean that one who accepted service as secretary of a corporation, was shown by the proof to have been such secretary, in order to sustain the judgment.</p> <p>i. Certificate of deposit; judgment l>y default, without intervention of jury, may he rendered on. — A certificate of deposit is an instrument in writing ascertaining the plaintiff’s demand, upon which a judgment by default may be entered up by the clerk, without the intervention of a jury.</p>

<p>Appeal from the Circuit Court of Lowndes.</p> <p>Tried before Hon. J. Q. Smith.</p> <p>Facts are sufficiently stated in the opinion.</p>

Tried before Hon. Wi. Miller. The material facts of the case are as fully set out in the opinion of the court, and in the dissenting opinion of the chief justice, as they can be gathered from a rather defective record.

Tried before H. D. Clayton, Esq., an attorney of the court, under § 758 of Revised Code. The facts are sufficiently set out in the opinion.

Tried before the Hon. P. O. Harpeb. This was an action commenced by Ward, against J. R. & H. S. Abrams, as warehousemen, to recover damages for. the failure to deliver seven bales of cotton stored with them on the 12th and láth of March, 1866. During the pend-ency of the suit, Ward having died, his administrator was made party plaintiff, and H. S. Abrams having also died, the suit: proceeded against J. R. Abrams as surviving partner.

Tried before Hon. Thos. J. Woole. The facts upon which the opinion of the court is based are sufficiently set out therein.

Tried before Hon. John Henderson. The appellee, Woodward, obtained a judgment against the Talladega Insurance Company, at the spring term, 18 07, of the Talladega circuit court, and the appellant, as a stockholder in said company, and owing an unpaid subscription to the capital stock of said company, was after-wards summoned by process of garnishment as the debtor of said company.

<p>[action on pbomissoby note — beanoh summons.].</p> <p>X. Branch summons; what not such irregularity in, as will work d discontinuance. — There being three defendants, L. and B. and H., and H. residing in Jefferson county, and L. and B. residing in Shelby county, suit was brought against all in Jefferson circuit court, and the original summons and complaint was served on H. by the sheriff of Jefferson” and a branch summons issued by the clerk of the circuit court of Jefferson county and sent to Shelby county, and'there served on L. and B., and all the summonses are returned to Jefferson circuit court and there made one case, and judgment by default rendered against'all the defendants, — Held, that such judgment will not be reversed on appeal to this court, because the branch summons does not contain the name of the defendant H., except in the indorsement by the clerk on the branch summons. Such an irregularity, if of any force, is not equivalent to a discontinuance.</p>

<p>Appeal from the Circuit Court of Henry.</p> <p>Tried before Hon. J. MoOaleb Wiley.</p> <p>The facts are stated in the opinion.</p>

<p>[action cot detinue.]</p> <p>1. Joint action; what agreement will not support, in detinue. — G. and P. being separate and independent creditors of F., in pursuance of a verbal agreement to make common cause in obtaining, by suit or otherwise, what they could out of their debtor F., and to divide the recovery between them in proportion to their respective debts, sued F. jointly, in detinue, to recover specific property mortgaged to P,, — Seld, that such an agreement would not support a joint action.</p> <p>2. Trover and detinue, in action of; value of property, at what time assessed. In detinue, as in trover, the jury may assess the value of the property at any time between the demand and the trial.</p> <p>3. Damages for detention; what may he considered, i/n determining. — The deterioration of the property from use, in addition to the annual rent or hire, may be considered by the jury in estimating the damages for the detention.</p>

<p>[ BILL IN EQUITY TO ENJOIN SALE UNDER MORTGAGE. ]</p> <p>1. Injunction; when will be dissolved. — An injunction to restrain the collection of a judgment at law, will be dissolved upon tbe coming in of the answer of a sole defendant, which denies the allegations of the bill upon which its equity rests.</p> <p>2. Same; what complainant must offer. — A party who asks an injunction to restrain the collection of a judgment, or of an ascertained and admitted debt, secured by mortgage, must pay or tender payment for what he really owes to the respondent in the bill, or show some sufficient cause for his failure to do so.</p>

<p>Appeal from the Probate Court of Conecuh.</p> <p>Tried before Hon. A. W. Jones.</p> <p>The facts are sufficiently set out in the opinion.</p>

Tried before Hon. B. iS- Williams. This was a proceeding in the probate court of Perry county on the settlement and distribution of an insolvent estate, The appellant, Fox, preferred a claim against the estate of Osmond T. Jones, deceased. The claim consisted of a promissory note, in the following words: “ $540.

Tried before Hon. B. L. Whelan. This suit was upon an instrument of which the following is a copy: “ Marion, 1st January, 1862. “ $943 80.

<p>[ACTION ON PBOMISSOET NOTE — ABATEMENT OF SUIT, ON ACCOUNT OF DEATH, AS TO ONE OF SEVEBAL JOINT OBLIGOES SEEVED WITH PBOCESS.]</p> <p>1. Discontinuance ; what not equivalent to.- — The death of one of several defendants served with process, in action of debt on a bond or note executed by several persons, and the abatement of the suit as to such deceased defendant, does not discontinue the whole action, á. Same ; definition of. — A discontinuance is an unauthorized dismissal of the suit as to one of several defendants who have been served with process. The death of one of the defendants, and the abatement of the suit as to him, does not have this effect.</p> <p>3. Death of defendant; how suit may proceed after. — In case of the death of one of the defendants who has been served with process, the court may proceed in the cause, at the proper term, to trial and judgment against the surviving defendants, without further notice of the party who dead.</p>

<p>[APPLICATION TO JUDGE OP PROBATE, UNDER PROVISIONS OP THE REVISED CODE, POE LEAVE TO RAISE DAM TO SUPPLY GRIST MILL TO GRIND POR TOLL.]</p> <p>1. Objection; what can not be made for first time in this court, by party appearing in court below. — In a proceeding under the Revised Code, to erect or raise a dam, -the objection that less than fifteen days intervened between the filing of the application and the inquest of the jury, can not be raised, for the first time, in this court by a party who appeared in the primary court to contest the application, and there omitted to make the objection.</p> <p>2, Facts, existence of; what sufficient proof of, on appeal. — When an . appeal is taken upon the record merely, without a bill of exceptions, it is sufficient if the existence of a fact, necessary to uphold the judgment of the court below, appear either actually upon the record, or by the determination of the court.</p>

Tried before Hon. J. MoCaleb Wiley. The appellee, Shackleford, sued out an attachment in the circuit court of Henry, against the appellant and one Roberts, for the year’s rent of one hundred and twenty acres of land, and gave bond, The complaint filed by the plaintiff contained two counts) and claimed $600 damages for a breach of the contract in not planting all the land, and for not cultivating it as agreed on in the contract.

Tried before Hon. J. McCaleb Wiley. On the 8th of December, 1868, Hardy W. • B. Price, as executor removed of the will of Henry C. Tyson, was to settle his accounts with the estate of said Tyson in the probate court. Price had been previously adjudged a bankrupt, on his own petition, under the bankrupt law of the United States, approved March 2d, 1867. The administrator de bonis non claimed nothing of him.

Tried before Hon. John Elliott. This was an action brought by the appellant against the appellees, to recover damages for the wrongful and vexatious suing out of an attachment, &c. The affidavit for attachment is not set out in the record, nor does it show the ground on which the attachment was sued out.

Heard before Hon. N. W. Cocke. In this cause, which was a bill in equity to subject the separate estate, by contract, of a married woman to the payment of a bill of exchange drawn by her and others, the chancery court granted the relief prayed for in the bill, and directed a reference, &e., and a sale of the trust property. The other facts arising in the case, and upon which the decision of the court is based, will be found in the opinion.

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

Tried before Hon. Thos. M. Arrington. This was an action by the payee against the acceptor of a bill of exchange, dated May 11th, 1861, and due four months after date. The complainant claimed damages thereon. Judgment, by default, was rendered for an amount which was equal to the principal, and five per cent, damages thereon at maturity, with interest to the rendition of the judgment.

Tried before Hon. B. L. Whelan. The appellee sued the appellant as acceptor of a bill of exchange, which was as follows: “Exchange, $1,093 84.

Tried before Hon. Chas. Pelham. Action, founded on a due-bill executed February 6,1860, commenced 9th of March, 1868, and summons returnable to spring term of circuit court of said year. Judgment by default at fall term, 1868, or (in this case) the appearance term. The error assigned is the rendition of the judgment at the term at which it was rendered.

<p>[settlement oe insolvent estate in probate court, ]</p> <p>1. Statute of limitations ; for what length of time suspended. — The statute of limitations was suspended in this State from the 11th day of January, 1861, to the 21st day of September, 1865. (Re-affirming Coleman v. Holmes, at present term.)</p>

the Circuit Court of Cleburne. Tried before Hon. W. L. Whitlock. This was an action of trespass by the appellee, Knight, against the appellants, to recover damages for trespass in taking certain property of the plaintiff, to-wit: a wagon and yoke of steers, and selling the same, under an execution against W. M. Beason.

Tried before Hon. J. S. Corbin. This was an action, in the nature of ejectment, brought by the appellee against the appellant, to recover a certain lot in the city of Selma.

<p>Appeal from Chancery Court of Barbour and Henry.</p> <p>Heard before Hon. B. B. McCbaw.</p> <p>The facts upon which the decision is based are sufficiently set out therein.</p>

This is an application by Morris & Blair for a rule nisi, or an alternative mandamus, to the circuit court of Bullock county, to require said court to set aside and vacate an order and judgment of said court, made at the fall term of said court, to-wit, on the 4th day of December, 1869, setting aside and declaring null and void a certain judgment, recovered by said applicants at the spring term of said court, in the year 1868, for the sum of three hundred and sixty-one…

<p>[contest on application to declaee estate oe decedent insolvent.]</p> <p>1. Credit, allowance of; when error. — It is error on the final settlement of an executor to allow him items of credit for funds on hand, unless such funds, or the value of the property of the estate converted into such funds, have been charged to him as assets of the estate in his hands.</p> <p>2. Worthless assets; when credit may be allowed for. — Where funds, which came legally into the hands of the executor, have become worthless without fault on his part, he may on proof of that fact leave the same out of his account altogether ; or, if they are charged to him, he may have a corresponding credit allowed.</p> <p>3. Executor, liability of; for converting property into Confederate funds.— An executor is a trustee, and can not change the property of the estate received by him into other funds without authority of law. If he so changes the property in his hands into Confederate notes and bonds, without authority of law, he must suffer the loss, and it is error to allow him on final settlement a credit for such funds, which have become worthless, unless, perhaps, where the same was so directed by the will.</p>

<p>Note sx Reporter. — Teok, O. J., sat but a few days during the latter part of the term, being absent for the remainder of the time on account of sickness.</p> <p>[INDICTMENT EOR ENTICING SERVANT UNDER WRITTEN CONTRACT.]</p> <p>1. Enticing servant under written contract; indictment for, when sufficient, An indictment under section 3691 of the Revised Code, for enticing servant under written contract, is sufficient if it states the offense in the language of the statute, although the facts which constitute the •offense may be charged in the alternative.</p> <p>2. Same. — The law in the Revised Code, against “ enticing servant under written contract,” is still of force, and is a valid law. . It is an enactment of the legislature of Alabama, under the provisional government set up by authority of the United States, and has not been repealed, but continued in force by the recognition of the present rightful government of the State.</p> <p>3. Same; not in violation of “civil rights hill.” — Said enactment is not in violation of, or in conflict with, the provisions of the law of congress, commonly known as the “ civil rights bill,” It does not discriminate in favor of, or against, any class of citizens. Any person competent to make written contracts may employ laborers, or may be employed as a laborer, under its protection, without regard to race, color, or condition.</p> <p>4. Same; infancy of laborer, what no defense against. — The infancy of the laborer interfered with is not a good defense for one who violates this law.</p> <p>5. Same ; ivhat not necessary to conviction. — In order to convict under this statute, it is not necessary to show that the second or subsequent employer knew at the time of hiring that a previous subsisting contract existed, if, after being properly notified of the previous existing contract, he failed and refused to discharge the laborer, but still kept him in his service.</p> <p>6. Same; ivhat contracts effected by. — To bring a contract for hire within the provisions of this enactment, the whole contract must be in writing. Contracts by parol, although valid without reference to this enactment, and binding upon the parties, do not come within the protection of the act.</p> <p>7. Same; rights of parties to contract for labor. — In such contracts for labor, as in other contracts, the obligation must be mutual, and if such oontract be dissolved for any legal reasons, the laborer can make a second contract, without regard to the first.</p>

Tried before Hon. M. J. Saeeold. The appellant, Manaway, was indicted under § 3702 of the Bevised Code for falsely and fraudulently forging a certificate for the payment of money, purporting to be one* made, by a- partnership association, composed of J. Cb Moses, F. H. Fowler and E. Bebee, authorized by an act' of the legislature, approved December 31st, 1868, with the intent to defraud, &c. The defendant went to trial on the; indictment, on plea of “ not guiltywas found…

Afheah from the Circuit Court of Hale, Tried before Hon. M. 3.

<p>Appeal from Circuit Court of Henry.</p> <p>Tried before Hon. J. McOaleb Wiley.</p> <p>Tbe opinion states tbe facts.</p>

Tried before Hon. W. S. Modd. The appellant was indicted for murder, tried and found guilty of murder in the first degree, and sentenced to the penitentiary for life. On the trial, as shown by the bill of exceptions, the following proceeding occurred in relation to drawing the names of the jurors.

<p>Appeal from the Circuit Court of Perry.</p> <p>Tried before Hou. M. J. Saepold.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Appeal from the Circuit Court of Dallas.</p> <p>Tried before Hon. M. J. Saefold.</p> <p>The facts upon which the decision rests are sufficiently set out in the opinion.</p>

<p>Appeal from Circuit Court of Wilcox.</p> <p>Tried before Hon. P. O. Harper.</p> <p>The facts are sufficiently set out in the opinion.</p>

This was an application, by Harry Bryan, to this court for a mandamus, to compel the circuit court of Elmore, Hon. J. Q. Smith, judge presiding, to vacate and set aside an order, made by said court, transferring the trial of the case of The State vs. Harry Bryan, on an indictment f.or burglary, to the county of Montgomery.

Tried before Hon. C. F. Moulton. This was an indictment under section 3622 of the Revised Code, for betting at a game called “beno/’ &c. The defendant went to trial on plea of “ not guilty,” was found guilty, and sentenced to pay a fine of |50 and the costs of the prosecution.

<p>[INDICTMENT AGAINST DEPPTV SHEKIFJ? JTOlt DISCLOSURE 03? INDICTMENT.]</p> <p>1. Indictment wider § 3577 of Revised Code; token sufficient. — An indictment, under § 3577 of the Bevised Code, for ‘ ‘disclosure of indictment by officer of court or grand juror,” is sufficient if it pursues the form of the statute, and is in form analogous to the forms prescribed in the Bevised Code.</p> <p>S. § 3577 of Revised Code, deputy sheriff; “officer of court” within meaning of. — A deputy sheriff is an “officer of court,” within the meaning of § 3577 of the Revised Code.</p> <p>3. Same; what necessary to eonviet under. — The intent to disclose must accompany the act of disclosure, in order to justify a conviction under said section. (Saepold, J., dissenting, held, that there was no error in refusing the second charge, and that the judgment should he affirmed.)</p>

Tried before Hon. J. McCaleb Wiley. The indictment in this case charged, “ that before the finding of this indictment Thomas Crew, and Turner Johnson, did distill vinous or spirituous liquors without license find contrary to law, “ against the peace,” &c. Section HI of revenue act of 3868, is as follows ; “ Sec. 111.

This was an application to the court by Fielding Vaughan for bail, the same having been refused by the judge of the criminal court of the county of Dallas. The facts, which were agreed on in the court below, are all set out in the opinion.

<p>[BILL IN EQUITY TO ENJOIN SALE OF LAND OF COMPLAINANT, UNDER EXECUTION ON JUDGMENT RENDERED IN 1862, AGAINST HIS VENDOR, AND TO REMOVE CLOUD FROM TITLE ATTEMPTED TO BE CREATED BY SUCH JUDGMENT AND LEVY OF EXECUTION, AND FOR GENERAL RELIEF.]</p> <p>1. Foot-note, omission of, to MU m ehancery ; effect of. — The omission of a note, at the foot of a bill of complaint, required by the 10th rule of chancery practice, is a good cause of demurrer; but it is an amendable error, and does not go to the merits of the case, and on sustaining a demurrer for that cause the bill ought not to be dismissed, but the complainant should be perniitted to amend on terms.</p> <p>2. Same; when omission of, will be held to be waived. — If a defendant, notwithstanding such an omission, files a full answer, with a demurrer for that cause, and then goes to a final hearing on the bill and answer and an agreed state of facts, he will be held to have waived the error, and will not be permitted to take advantage of the defective character of the bill, either on the hearing, or on appeal.</p> <p>3. Judgments rendered during the war, by rebel courts; effect of. — Judgments rendered by the courts of the rebel government of this State, during the rebellion, created no liens upon the property of the defendants to such judgments, which, in the absence of legislation, can be recognized and enforced by the courts of the present State government.</p> <p>4. Same. — Such judgments can stand upon mo higher grounds than foreign judgments, and constitute mere causes of action, and can only be enforced by the law of comity, and in actions brought for that purpose. The justice of such judgments may be impeached, and it may be shown that they were irregularly or unduly obtained.</p> <p>5. “Aet to regulate judicial proceedings," approved Dec. 10,1861; unaonsti-. tutionality of. — The act of the rebel legislature entitled “ An act to regulate judicial proceedings,” approved December 10, 1861, was invalid— 1st, because it was in violation of public policy; and 2d, because it impaired the obligation of contracts.</p> <p>6. Smne; no liens created by. — Said act being unconstitutional and void, ¡the liens created by it could not be preserved or continued in force by subsequent legislation for that purpose.</p> <p>7. “Aet for the protection of bona fide purchasers, for a valuable consideration, ” approved Oct. 10,1868 ; constitutionality of. — The act entitled “An act for the protection of bona fide purchasers for a valuable consideration,” approved October 10th, 1868, is not in conflict with section 2 of article 4 of the constitution of this State, which declares that “each law shall contain but one subject, which shall be clearly expressed in its titlenor is it in conflict with part 1, § 10, art. 1, of the constitution of the United States, which declares that no State shall pass any law impairing the obligation of contracts.</p> <p>8. Dien created by mere act of legislation; has none of the properties of a contract. — A lien created by mere act of legislation has none of the elements or properties of a contract, and, therefore, may be destroyed by an act of legislation.</p> <p>9. Chancery, jurisdiction of; what sale will enjoin. —A court of chancery will interpose and prevent a sale under an execution in behalf of a bona fide purchaser of real estate for a' valuable consideration, when the purchase was made after the rendition of the judgment, on which the execution was issued, but before the delivery of an execution upon the judg ment to the sheriff of the county where the property is situated.</p> <p>10. Same. — Such a sale, if permitted to be made, would be a cloud upon such purchaser’s title, and as there is no remedy at law to prevent such a sale, or to remove the cloud that would thereby be brought upon his title, a court of chancery will, on his application, exercise its preventive ; jurisdiction and perpetually enjoin a sale under an execution, in such a case, and thereby quiet his title.</p>

Heard before Hon. B. B. McCbaw. The original bill was filed in this cause in the chancery court of Talladega, on the 2d of December, 1867, by the appellee, Ann G. Turner, against her husband, Matthew Turner, and his son, E. C. Turner. The bill prays for a divorce a mensa et tJioro from.the defendant, Matthew Turner, on the ground of adultery, cruelty, abandonment, &c., for alimony pendente lite, and for permanent alimony and for general relief.

Heard before Hon. A. C. Felder. George Schumaker, the appellant, and Edward Auerback, residing in Mobile, executed, on the 5th of November, 1864, the following writing: “ Know all men by these… Held: as contended for by appellants, that the property of each is bound by the will from the time of its execution, and can not be alienated or encumbered, then it operates a fraud on creditors, because they could have no notice of the will.

Tried before Hon, B. L. Whelan. This was an action by the appellee, Crook, against the Southern Express Company, as a common carrier, to recover damages for the failure to deliver two bales of cotton which defendant undertook to carry from Blue Mountain to Selma, and there deliver to Williams & Boyd, as agents for the plaintiff. The complaint is in the form given in the Eevised Oode fop complaint against a common carrier. No pleas appear to have been filed.

Tried before Hon. P. O. Harper. From the bill of exceptions, taken at the hearing before the circuit judge in the court below, which bears date the 17th day of April, 1869, it appears that John F. Fore petioned the honorable judge of the probate court of Monroe county, in this State, to have James Fore declared a person non compos mentis.

Tried before Hon. J. Q. Smith. The appellee commenced this suit by attachment, and the appellant, by motion entered on the motion docket, applied to the court for a rule upon the plaintiff to show cause why the attachment should not be dissolved, on the ground that it had issued before the maturity of his obligation, in a case not so provided for by law.

Tried before Hon. W. L. Whitlock. This was an action, by the appellee, Quinchett, against the appellant, the Oxford Iron Company, to recover damages for the breach of an independent covenant or agreement, in not delivering to the appellee certain mules loaned or hired to the Oxford Iron Company in the year 1864.

Tried before Hon. John Elliott. The facts are stated in the opinion.

Tried before Hon. P.' O. Habpeb. This action was commenced on the 16th of February,, I860, by McGuire and Satterwhite, as administrators, &c.,. against B. H. Erwin and F. G. Tait, as executors of the last will of F. K. Beck, deceased, on a promissory note, made by defendants’ testator. The cause was continued generally until the spring term, 1869, when it was tried. On the 18th day of March, 1867, the estate of Beck was declared insolvent.

Heard before Hon. A. C. Felder. This was a bill in equity exhibited in the chancery court of Mobile, by W. G. Clark and other persons claiming to be “ the Mobile school commissioners,” a corporation created and recognized by the laws of Alabama, against G. L. Putnam, N. B. Cloud, superintendent of public instruction, R. M. Reynolds, State auditor, and Arthur Bingham, State treasurer, praying for an injunction to prevent the payment to the defendant Putnam of certain moneys…

Tried before E. M. Williamson, Esq., an attorney of the court, under § 758 of the Eevised Code. This cause grew out of a motion of the sheriff, for the direction of the circuit court as to the application of moneys collected by him, on various executions issued on judgments rendered by the “ county court,” afterwards “ city court,” and the circuit court. The various parties interested appeared and contested with each other the right to the moneys collected.

<p>[ACTION ON EROMISSOBX NOTE.]</p> <p>X. Pa/rtnershij), suits by; what should show.- — In a suit by a partnership, the names of the partners composing the árm should be stated with distinctness.</p> <p>2. Same; when judgment hy default is error. — In a suit by a partnership, in the firm name only, neither the Christian nor surnames of the persons composing the firm appearing in the record, nor aught else in the proceedings by which an amendment might be made, it is error to render judgment by default.</p> <p>3. Seelion 2811 of Revised Code construed. — Section 2811 of the Revised Code, which provides that “no judgment can be arrested, annulled or set aside for any matter not previously objected to, if the complaint contain a substantial cause of action,” does not effect a case like this, but applies to cases where the parties appeared in court.</p>

<p>[appeal ebom oedeb beeusing mandamus.]</p> <p>1. Sheriff, fees of; what payable by the State. — Sheriffs in this State are entitled to be paid by warrant on the State treasurer, all fees in criminal cases, except when they are payable by the county, out of any funds administered by the county, whether these funds are general or special; unless there is a special law to the contrary.</p> <p>2. Same; Mat law governed as to' fees of sheriff in' Montgomery county up to 17th February, 1868.- — In the case of the' sheriff of Montgomery county, there was such a special statute, (Acts, 1865-66, p. 583,) which was in force up to the adoption of the Revised Code, on the 17th day of February, 1868. After that date the payment of his costs was governed by the act of the general assembly, as found in the Revised Code.</p> <p>3. Mandamus; whew lies. — A mandamus will be allowed to enforce a claim for such fees in favor of a sheriff.</p>

Tried before Hon. John Elliott. This was an action brought by the appellee against the appellant to recover money had and received by the defendant, to and for the use of the plaintiff.

<p>Appeal from the Circuit Court of Butler,</p> <p>Tried before Hon. P. O. Harper.</p> <p>The facts are sufficiently stated in the opinion,</p>

<p>[■PETITION TO CHANCERY CCURT TO COMPEL A STRANGER, IN POSSESSION OF A MORTGAGED ENGINE AND FIXTURES SOLD UNDER DECREE OF FORECLOSURE, TO DELIVER TO PURCHASER CERTAIN FIXTURES CLAIMED BY STRANGER AS HIS PROPERTY AND NOT BELONGING TO ENGINE. ]</p> <p>1. Intermingling of goo4s ; when will ehange ownership of.- — When goods are intermixed wiltully without mutual consent, the entire property belongs to him whose property was originally invaded, if its distinctive character is thereby destroyed. Itj however, the goods can be easily distinguished and separated, no change of ownership takes place.</p>

Heard before Hon. N. W. Cocke. This was a bill in equity exhibited by the appellant against the .appellee, and sought to enjoin a judgment at law. In the year 1850, appellant, as a mere surety, signed a note made by one Cleckly to one Lampkin, doe January 1st, 1851.

Tried before A. Benners, Esq., an attorney of the court, under § 758 of the Eevised Code, the presiding judge having been of counsel. Held: that although the issuing of such notes by the assumed Confederate authority for the purpose of carrying on a war against the government of the United States, may have been illegal, as against that government and the citizens thereof, who, during the war, were under the actual protection of that government, outside of the lines of…

The record does not give the name of the presiding judge. The appellants, who were garnishees on an attachment suit instituted by the appellees, assign errors upon the record in this case, there being no bill of exceptions. The notice of garnishment served on them described the plain-stiff in the attachment suit, as guardians of two persons, .and the judgment is in favor of them as guardians of one of them only.

Tried before Hon. B. L. Whelan. The facts are sufficiently stated in the opinion. The appellants insist that the court erred in the charge given, and in the three charges refused, all of which involve in substance the same principle.

Tried before Hon. G. Horton. This is an appeal from a decree of the probate court of Mobile county, distributing the estate of Cassius Swanson, deceased, who was a freedman of color. The facts, upon which the court below acted, were agreed upon by the parties litigant.

<p>Appeal from Circuit Court of Randolph.</p> <p>Tried before Hon. John Henderson.</p> <p>The facts are sufficiently stated in the opinion.</p>

Tried before Hob, J. MoOaleb Wiley. The facts are fully set out in the opinion.

Tried before Hon. John D. Cunningham. This was an action by the appellee, Urquhart, against the appellant.

This was an application to this court for a mandamus to compel- the circuit court Montgomery county, Hon. J. Q. Smith, presiding, to set aside an order continuing a garnishment suit for further answer, and refusing to discharge the garnishee upon his uncontested answer. The facts of the case are set forth sufficiently in the opinion.

<p>[APPEAR mtOM ORDER GRANTING MANDAMUS.]</p> <p>1. Occupations; right of State to tax. — The State has the right to tax occupations.</p> <p>2. Revenue act of 31si December, 1868; construction of. — The revenue act approved December 31st, 1868, requires each lawyer composing a firm to pay the price prescribed for lawyers for a license, which entitles him to practice his profession in any county of the State.</p> <p>3. Same,§ 120 of; does not confer judicial power on auditor. — Section 120 of that act does not confer upon the auditor any judicial authority. It only makes him, to the extent therein expressed, chief of the revenue department to insure uniformity in the execution of the law throughout the State.</p>

<p>[APPEAL PBOM OBDEB EEPÜSING MANDAMUS.]</p> <p>1, Siieriff’s fees in criminal cases; when payable by the Slate. — Tlie third clause of section 4340 of the Revised Code, provides for payment by the State of the sheriff's fees in criminal cases, except when the defendant has been convicted or a nolle prosequi entered, in which case they are payable by the county. Where the costs have been taxed against the prosecutor, or the foreman of the grand jury, there must be a return of execution “no property found.”</p>

- Tried before Hon. John Moore. The facts upon which the case turns are' sufficiently set out in the opinion. T-he main question raised by the charges asked on behalf of the plaintiff, is, whether an administrator who sell's land under the order of the probate court can make an agreement to receive Confederate money in payment, which will- be available to the defendants ? The court authorized the sale of the property upon a credit of twelve months.

<p>fpiLL IN EQUITY FOB DIVORCE, ON GROUND OF CRUELTY, AND FOR GENERAL RELIEF.]</p> <p>1. Divorce; token tvill he granted on slight indications of peril to wife. — The Christian interpretation of the contract of marriage requires that the husband shall love the wife ; that “he shall delight in her as in himself,” and when the proofs show that he habitually fails to do this, the courts, upon very slight indications of peril to her of body or health, will interpose for her protection, by divorce.</p> <p>3. Same; what sufficient evidence of cruelty to justify. — If the conduct of the husband is shown to be habitually cold, indifferent, rude, harsh, vulgar, obscene, and profane, towards the wife, and she is seen shortly after being with him, in the privity of the marital relation, in tears, with bruises on her face, lips, and side, of a serious character, and the husband admits, when complained of, that these indications of bad treatment were produced by him, his explanation that they were given in playfulness and jest, and not in anger or in earnest, will not be sufficient to rescue his “conduct’’ from the construction that these appearances are evidences of legal cruelty, sufficient' to justify a divorce in favor of the wife for that cause.</p> <p>3. Children, custody of; when should he granted to the mother. — Upon a dissolution of marriage, by divorce in favor of the wife, if she has possession of the children of the marriage, who are of tender years, two being girls and the other a boy, and it appears that the mother is a woman of polite education, and of an amiable disposition, and virtuous, and if it appears that the father is habitually rude, profane, vulgar, obscene and hypocritical in his conduct, and insulting in his language to females in his household, with some evidences of a tendency to drunkenness, cold and indifferent to his children, and disposed to sell them to their grand-mother “for cash,” and denounces them as “damn nasty babies” of whom he is tired — in such a case the children will not be separated, or taken from the care and tuition of the mother.</p> <p>4. Dwelling-house, ‡0.; when wife tvill he protected in possession of, hy injunction. — If during marriage, the husband conveys or causes to be conveyed to the wife, by deed, a house and lot, in which they then are residing, for the purpose of securing it from confiscation on account of the husband’s participation in rebellion, and he received and holds possession of the deed for her, and if he is insolvent or likely to become insolvent, and has received moneys or estate belonging to the wife, as her separate property, of considerable value, under the laws of this State for the protection of married women, upon a dissolution of the marriage bjr divorce in the wife’s favor, she will be protected in he]’ possession of such house and lot, and the furniture therein, by injunction against the husband’s claim.</p> <p>5. Deposition, suppression of; when will not he allowed, unless adverse party shows actual injury. — The suppression of a deposition, on motion of the adverse party, because the witness had been furnished with a copy of the interrogatories, and cross-interrogatories, before the examination by the commissioner, will not be allowed, unless the party complaining shows actual injury to him by such practice. In such a case error will not be presumed.</p> <p>6. Same; English orders and rules of practice; how regarded. — The English orders and rules of chancery practice, in such cases, are not to be regarded as peremptory, but only ‘‘as furnishing proper analogies to regulate the practice” in our courts. — Chancery Rule 7, Revised Oode, p. 824.</p> <p>7. Deposition, suppression of; zvhen failure or refusal of witness to answer interrogatories will not he cause for. — The refusal or failure of a witness to answer a question, addressed to her on an examination before the commissioner, will not be held a sufficient reason to suppress such deposition on motion of the adverse party, when it appears that the interrogatory is sufficiently answered in another portion of the deposition, or that the answer would be immaterial on the trial on the merits of the cause.</p> <p>8. Decree in ehancéry; when improper ruling as íq parts of interrogatories, &c., will not reverse. — When there are numerous objections to parts of interrogatories, some of which mq,y have been improperly decided in the court below, a decree in chancery will not be reversed, if it appears that there is sufficient festiipony, beside that objected to, to sustain the chancellor’s decree.</p>

<p>[appeal ekom oedeb dissolving injunction.]</p> <p>1. Bill in chdheery; when without equity. — Where the allegations of a bill, filed to enjoin a judgment at law, show that there was á well ascertained and sufficient remedy at law, it is without equity, uüless it also shows that the defense at law was unlmowfi to complainant at the time of the rendition of the judgment; and if tho bill fails to show this; an injunction staying the collection of the judgment will be dissolved, on motion, in vacation, made under provisions of section 3438 of Eevised Code.</p> <p>S. Injunction; when will he dissolved. — An injüáction will be dissolved upon the denials of one of the defendants, upon wkom the gravamen rests, where there are several, and all have answered, if the denials' are full and complete.</p>

<p>[bill in equity to enfobce vendoe’s lien, foe unpaid fuecha&e MONEY OF LAND, SOLD AT ADMINISTBATOB’S SALE.]</p> <p>1. Notes given for purchase of decedent’s lands, sold under order of probate court; what liens create, how can not be waived. — Notes given for the purchase-money of a decedent’s land sold by the administrator on a credit, in accordance with an order of the probate court for the purpose of paying the debts of deceased, create a lien in favor of the estate of the decedent for the payment of the purchase-money. The administrator has no authority to release_sueh lien until the whole' purchase-money is paid.</p> <p>3. Same ; lien for, may be enforced by administrator de bonis non. — Such, lien may be enforced in equity by the administrator de bonis non of the estate of such decedent.</p> <p>3. Same; when separate notes, each constitutea lienon whole tract of land.— In such a case, if an entire tract of land be sold in one body at the same sale, and not by parcels, then the notes given for the purchase-money at such sale, whether they be given by the same parties or by several different parties, in several notes, are each and all invested with the right of lien for the purchase-money upon the whole tract of land sold, until all are paid.</p> <p>Note by Reporter. — The opinion in this case was delivered at the June term, 1869, and upon application by appellees for rehearing, was held under advisement until the January term, 1870, when the following response was made by—</p> <p>PETERS, J. — The bill shows that there was but one order for the sale, but one sale, and but one confirmation of this sale, and that Underwood and Sullens were joint and not several purchasers. The private agreement of Underwood and Sullens, after the sale, to divide their lands, could not alter the sale or its legal effect. The lien of the vendor extended to the whole tract, and this could not.be discharged except by a payment of the whole price. The rehearing is refused, with costs.</p>

Heard before Hon. J. Q. Loomis. This was a bill in equity filed by tbe appellant, Wade, against the appellees, Matilda E. Pope, as executrix of tbe last will and testament of Zachary Pope, deceased, and tbe heirs and devisees of said estate, and sought to charge the estate for the payment of wages due appellant as overseer employed on said estate, and for mules purchased and paid for by him for the estate, and used in carrying on the farm, at the request of the executrix-…

<p>Appeal from City Court of Montgomery.</p> <p>Tried before Hon. John D. Cunningham.</p> <p>The opinion states the facts.</p>

<p>[bill IN EQUITY POE DIVOEOB.]</p> <p>1. Matrimony, dissolution of bonds of, under section 2353 of Revised Code; what necessary to authorize. — To authorize a dissolution of the bonds of matrimony under section 2353 of the Revised Code, there must be, on the part of the husband, actual violence committed on the person of the wife, attended with dangor to her life or health, or such conduct on his part as shows there is reasonable apprehension of such violence ; and such acts of violence, or such conduct, should be distinctly stated and clearly proved, so as to leave no reasonable doubts ou the mind as to the truth of their existence, and of their tendency to endanger the life or health of the wife ; and the wife, as a general rule, should be without fault on her part.</p> <p>2. Evidence ; what insufficient to establish charge of cruel treatment and violence. — The deposition of one witness, the sister of complainant, whose general character is proved to be bad, and who is contradicted as to a material fact by the brother of the defendant, is not sufficient to establish the charge of cruel treatment and violence, committed on the person of the wife, by the husband.</p> <p>3. Defendant’s answer; for what purpose can not he iootced to. — The answer of the defendant, in such a ease, can not be looked to, either to support the charges in the bill, or to sustain the deposition of a witness Whose general character is shown to be bad.</p> <p>4. Absent witness, admissions of what would swear if present; force and effect of. — Admissions, of what it is stated absent witnesses will swear, made by the plaintiff’s solicitor to obtain a hearing and prevent a continuance, must be held to have the same force as the deposition of such witnesses would be entitled to have if regularly taken by the defendant.</p> <p>5. Next friend; when may be taxed with costs. — A next friend, in whose name the bill of a wife is filed to obtain a divorce, if it be dismissed, may properly be decreed to pay the Cost.</p>

Heard before Hon. W. B. Woods. The facts upon which tlie decision is based are sufficiently stated in the opinion. There was no equity against Boyd and-Milhouse, as administrators of Hunter, because complainant was not entitled, as dower, to any portion of the rent for 18ii6. Jno. S. Hunter, before his marriage until complainant, had leased the lands for one year.

<p>|[ ATTACHMENT — ‘1 ACT FOR PROTECTION OF AGRICULTURAL LABORERS UNCONSTITUTIONALITY OF.]</p> <p>1. Objection, what can not he raised for first time in appellate court. — The objection that no complaint was filed can not be made for the first time in the supreme court, when the record shows that the parties appeared by attorney in the court below.</p> <p>2. Act of December 28th, 1868, entitled “An act for the protection.of agricultural laborers unconstitntionality of. — The “Act for the protection of agricultural laborers,” approved December 28th, 1868, is unconstitutional, because it does not provide for a trial by jury ; there being no provision for such a trial in the act, or by the general law, either in the probate court, or in the circuit court on appeal.</p> <p>3. Same. — An aet of the legislature conferring additional jurisdiction on the probate court, without provisions in the act for an appeal, is not unconstitutional, if an appeal is provided by the general law.</p>