Volume 45 — Alabama Reports

This was an original application to the supreme court for mandamus. The petition shows the following state of facts : The petitioners, Ray & Defoe, having been indicted for murder at the fall term of the circuit court of Limestone, were arrested on a capias issued by the clerk of said court and committed to the county jail. They then petitioned the probate judge of the county for a writ of habeas corpus to discharge or admit them to bail, as the evidence required.

<p>[ INDICTMENT EOB VEETOEY. ]</p> <p>1. Indictment; right of accused to have copy of. — It is the constitutional “right” of the defendant “in every criminal prosecution,” by indictment, in this State, to demand the nature and cause of the accusation against him, and to have a copy thereof, before he can be compelled by the court to be put upon his trial.</p> <p>2. Venire; accused not entitled to have copy of, except in capital felonies.— The accused has no “right,” either by the constitution or by statute, to have a copy of the venire, or list of jurors summoned for his trial, delivered to him, except he be charged with a capital offense.</p> <p>3. Indictment, right to have copy of; may he ivaived. — In felonies not capital, the constitutional right of the accused to have a copy of the indictment may be waived; and in the absence of statutory provisions regulating the same, will be held to be waived, if not made at the proper time.</p> <p>4. Same. — The constitutional right of the accused to have a copy of the indictment, when demanded, in such cases, will not be held to be waived or prejudiced, because in the demand the accused also demanded a copy of the venire, to which he was not entitled.</p>

<p>Appeal from Criminal Court of Dallas.</p> <p>Tried before Hon. Geo. H. Craig.</p> <p>The facts are sufficiently stated in- the opinion.</p>

Tried before Hon. G. H. Craig, The appellant, Lewis Langford, was indicted for obtaining by false pretenses the signature of William M. Brooks to a written instrument “commonly called an appeal bond.” The indictment was as follows : “ The State of Alabama, ) Criminal Court, Dallas county. f December term, 1870. “ The grand jury of said county charge, that before the finding of this indictment, Lewis Langford did falsely pretend to William M. Brooks, with the intent to…

Tried before Hon. Charles Pelham. The facts material to the point decided will be found in the opinion. The testimony shows that the matches were placed upon the counter for the use of the public and the accommodation of the public; that any and every person had the right to take the matches without limit, to light their pipes and cigars.

Tried before Hon. Charles Pelham. The appellant was indicted for murder, tried, found guilty of murder in the second degree, and sentenced to ten years imprisonment in the penitentiary.

Tried before Hon. P. O. Harper. The appellants, together with Susan and Rachael Williams, were indicted at the fall term, 1869, of the Butler circuit court, for the murder of Jack Jones.

<p>[indictment por setting up, or being concerned in carrying on a lottery -WITHOUT LEGISLATIVE AUTHORITY, &C.]</p> <p>1. Tushaloosa Scientific and Art Association, what charter of, does not authorize. — The Tuskaloosa Scientific and Art Association is not authorized by its charter to distribute awards or prizes of money by lot. (Peters, J., dissenting.)</p> <p>2. Same. — If the provision in said charter for the payment of money in lieu of the article drawn, when not worth the value annexed in the published list, is used as a subterfuge for distributing money, the parties concerned are guilty of setting up and carrying on a lottery without the legislative authority of the State. (Peters, J., dissenting.)</p> <p>3. Same. — To convict a party of being so concerned, it is not necessary to prove that he himself sold any lottery tickets.</p> <p>i. Lotteries; lohat not authorized by. — The act of December 31st, 18G8, to regulate lotteries, does not authorize any lottery; nor does the revenue law which imposes a tax on them.</p>

<p>[indictment eor assault with intent to murder.]</p> <p>1. Assault with intent to murder; charge to jury as to, what proper. — On a trial for assanlt with intent to murder, the evidence tending to show that the accused presented a loaded gun and attempted three times to^ fire it, but there was no cap on-it, a charge that the absence of the cap would not avail the defendant if he supposed it was on the gun7 but that the jury must be satisfied beyond a reasonable doubt that he did not know there was no cap on it, is correct.</p> <p>2. Same; what the true rule as to adaptation of aet to thing intended. — In assault with intent to murder, and the like, the true doctrine is that, assuming the necessary intent to exist, the act must have some adaptation also to accomplish the particular thing intended; but the adaptation need only be apparent, not perfect.</p> <p>3. Judgment entry in ease of felony ; what must show. — In cases of felony, it is error not to ask the prisoner, before passing sentence, if he has any thing to say why sentence should not be awarded against him ; and where it does not appear from the judgment entry that this was done, it is a reversible error.</p>

Tried before Hon. LittleberRy Strange. The facts are sufficiently stated in the opinion.

<p>[APPEAL FROM JUDGMENT RENDERED BY CIRCUIT COURT, SUPERSEDING JUDGMENT RENDERED ON FORFEITED UNDERTAKING OF BAIL, AND RESTRAINING COLLECTION OF EXECUTION, &C.]</p> <p>1. Petition for rehearing; when judgment of circuit court in relation tot will not he disturbed. — A judgment on a petition for rehearing will not be reversed because the petition is informal, unless its deficiencies have been assailed by demurrer or plea in the court below.</p> <p>2. Undertaking of hail; what sufficient excuse for default. — The death of the accused, who is the principal obligor in an undertaking of bail, before the forfeiture of the obligation by default of the accused to appear, is sufficient to excuse him for such default.</p> <p>2. Same; lohat excuses sureties —In such a case, what excuses the principal obligor, excuses the sureties also. . The law does not require an impossibility of them — that is, to make a dead man appear in court and excuse his default.</p>

<p>Appeal from the Circuit Court of Choctaw.</p> <p>Tried before Hon. L. E. Smith.</p> <p>The facts are sufficiently stated in the .opinion.</p>

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

Tried before Hon. James S. Clark. Tbe appellant was indicted for an assault with intent to ravish, &o. On tbe trial, as appears from tbe bill of exceptions, tbe defendant offered to prove “ that the… Held: that if a jury, when once charged and sworn, be discharged, except in case of such necessity as may be considered as the act of God, such discharge is a bar to a second trial. — 3d ed. Whar. Am. Or. Law, p. 1009.

John D. Cunningham, The appellant, W. E. L. Morgan, was jointly indicted with Augustus C. Rose and Robert W. Graham, for a conspiracy to extort money. Before the trial, a severance had been granted as to Rose, and the venue, as to him, changed to Bulloch county; On the trial of this case, Morgan having offered “ Aug. 0.

Tried before Hon. Geo. H. Craig. The appellant was tried for grand larceny.

Tried before Hon. Geo. H. Craig. Tbe defendant was indicted for an assault with intent to murder. From the bill of exceptions, it appears that after the defendant had been arraigned, and pleaded not guilty, the court proceeded to organize the jury.

<p>Appeal from Circuit Court of Madison,</p> <p>Tried before Hon. W. J, Haralson.</p> <p>The facts are stated in the opinion.</p>

Tried before Hon. Littleberry Strange. A judgment final having been rendered against the appellee as a defaulting juror, he applied to the court at the next term, by petition and motion, to supersede the execu tion, on the ground that the judgment nisi had been set aside at the term at which it was rendered, and that he had not been served with notice of its rendition.

<p>[ INDICTMENT EOE MUBDEE. ]</p> <p>1. CJiarge to jury on trial of indictment for murder; what improper. — In a prosecution for murder, a charge to the jury that they must infer malice” from the killing, when there is some evidence that the killing was accidental, is improper.</p> <p>2. Same; what charge improperly refused. — The refusal of the court to charge, on the request of the defendant, that a criminal intent is necessary to be shown in order to justify a conviction for manslaughter, is error, if the charge is moved for in writing. There must be a criminal intent, or negligence so gross as to imply it.</p> <p>3. Wife of freedman; incompetent as witness for him. — The wife of afreedman with whom he intermarried during the existence of their slavery, according to the ceremonies then permitted to them, and with whom he has continued to live as his wife, since emancipation, is the lawful wife of such freedman ; and she is incompetent as a witness for him or against him-in a criminal prosecution, except for violence upon herself.</p>

Tried before Hon. J. McCaleb Wiley. The point decided is sufficiently stated in the opinion. [The briefs did not come into the Reporter’s hands.]

Tried before Hon. J. ,Q. Smith. This was an action commenced by Eliza Perry, by summons and complaint, against the appellant’s intestate and two others, makers of a promissory note, of which the following is a copy : “ $545 00. — Twelve months after date, we, or either of us, promise to pay Zebulon Eudolph, sr., or bearer, five hundred and forty-five dollars, in specie, or its equivalent, for value received. January 26,1854. (Signed) Alexander Eeid,.

Tried before Hon. M. J. Saeeold. The appellee, Corbin, applied to the circuit court for a mandamus to compel the appellant, Perkins, who was treasurer of Dallas county, to' pay him the salary, claimed by petitioner, as judge of the “ city court of Selma.

Tried before Hon. J. Q. Smith. One of the appellants being indebted to one Wharton, on a contract existing prior to the 25th of July, 1865, and having a dispute in relation thereto, according to a parol agreement submitted the matter in dispute to arbitration.

<p>[APPEAL PROM PINAL DECREE ON SETTLEMENT OP DECEDENT’S ESTATE.]</p> <p>1. Appeal, motion io dismiss; when will he granted, on affidavit of payment of judgment appealed from. — Where an appeal is taken after the satisfaction and. payment of the judgment or decree appealed from, this court will entertain a motion to dismiss such appeal, upon affidavit of the fact of such satisfaction and payment, filed in this court by the appellee ; and if the proceedings in the OOurt below do not appear to have been erroneous, the appeal will be dismissed, unless the money paid on such judgment or decree is returned or tendered to the appellee, before the assignments of errors in this court.</p> <p>B. Satisfaction, acceptance of; is -Waiver of error. — The acceptance of satisfaction on such a judgment or decree will be regarded as a waiver of the errors complained of. A party will not be permitted to hold on to the satisfaction, and also to insist on the errors at the same time.</p>

<p>[BILL IN EQUITY BY MOBTGAGOB TO BESTBAIN SALE OF LAND BY MOBTGAGEE.]</p> <p>1. Chancery eomt, decree of; when will not be reversed. — A decree of the chancery court on matters of fact will not be reversed unless th§ weight of evidence is decidedly adverse to the decree.</p>

Tried before Hon. John Elliott. On the 14th day of August, 1866, the appellee sued out an attachment, &o., which was on the same day levied on the homestead of the appellant. On the 20th December, 1867, appellee obtained judgment on said attachment, upon which judgment executions were regularly issued and levied on the same property until March, 1869, when the sheriff advertised the land for sale.

Tried before Hon. J. Q. Smith. Tbe facts are fully set out in the opinion. 1. There was no consideration for the promise made by Mrs. Alford. The debt agreed to be paid was that of her deceased husband, for which she was in no respect bound. She received no property of the estate of the husband, which was liable to pay his debts. The horse was a work-horse, exempt from payment of debts.

Appear from Chancery Court of Talladega. Heard before Hon. B. B. McCraw.

Tried before Hon. William Miller. Tbe decree in this case was rendered by tbe probate court of tbe county of Tuskaloosa, ordering the sale of tbe lands of tbe estate of John A. Brown, deceased, for division, because the same could not be equitably divided amongst the lieirs. The application was made by the appellee, the administrator de honis non of said estate. The application was resisted by appellant, one of the beirs at law of said deceased.

Heard before Hon. B. B. McCbaw. The facts are fully stated in the opinion. [The briefs did not come into the Reporter’s hands.]

Heard before Hon. Adam C. Felder. Adams filed his bill to foreclose a mortgage upon certain real estate, given to secure payment of the purchase money. Edward Fitzpatrick, the purchaser, and James Eay, an execution créditor of Fitzpatrick, were made defendants. Eay admitted the superiority of Adams’ lien, but chaiged in a cross bill that his execution had been levied on the mortgaged premises.

Tried before Hon. John Elliott. Tbe facts upon which the case turns are sufficiently set out in the opinion. [ The briefs did not come into the Reporter’s hands.]

Tried before Hon. P. O. Harper. The complaint in this case was as follows : “Plaintiff claims of the defendant four hundred and seventy-fiye dollars, as damages for injuries sustained by him, in tlie loss of his property, by the falling in of a bridge which had been constructed by contract with the court of county commissioners of said county, known as Conecuh river [bridge], on the public highway in said county from Elba to Greenville, the said court of county commissioners…

Tried before Hon. John Elliott. This was an action of detinue brought by the Citizens Mutual Insurance Company of Mobile, the appellant, against E. B. Lott, the appellee, to recover certain personal property seized by the appellee, as tax collector of Mobile county, to enforce the collection of certain taxes which the appellant claimed had been illegally assessed against it, and for which taxes it denied any liability.

Tried before Hon. John Elliott. The point decided is sufficiently stated in the opinion. [Briefs did not come into Reporter’s hands.]

Heard before Hon. W®. Skinner. The facts are fully stated in the opinion. Messrs. Walker & Jones filed an elaborate printed brief in the case, and the case was also argued orally at the bar. The briefs of appellant did not come into the Reporter’s hands. The bill in this case is without equity.

Tried before Hon. J. B. Appling. Tbe opinion fully states tbe facts. Under tbe general'law on tbe subject, a prochein ami could only be appointed by a court. — See Tyler on Infancy and Coverture, p. 195. No legal right of parentage or guardianship would enable any one to act for the infant without such appointment. The statute of Alabama authorizes the infant to sue by next friend without first obtaining the leave of a court.

Wo. Skinner. This was a bill in equity filed by the appellants against the corporate authorities of the city of Huntsville, to enjoin the collection of certain taxes levied by them on the property of appellants, which was formerly outside of the corporate limits, but which, by the act of the general assembly of November 24th, 1866, enlarging the eity boundaries, was brought within the corporate limits of the ■city and thus made liable to taxation as other city property.

Heard before Hon. J. B. Appling. Tbe facts are sufficiently stated in tbe opinion. 1. Held: that under the averments of his bill, the administrator must be charged with the note, but the clear implication from the language of the court in relation to it, quoted above, is, that if the administrator had averred that the securities taken on the note were “ either solvent, or reputed to be solvent,” at the execution of the…

<p>Appeal from Circuit Court of Chambers.</p> <p>Tried before Hon. Robert Dougherty.</p> <p>The facts are fully stated in the opinion.</p> <p>cited Stone v¡ Harris, 1 Ala. (Minor,) 32 ; Laird v. Patterson, ib. 14.</p>

Heard before G. D. Hooper, Esq., a solicitor of the court, as special chancellor. The facts are sufficiently stated in the opinion. [Briefs did not come into Reporter’s hands.]

This was an application to this court by John Upshaw, for a writ of habeas corpus to obtain his discharge from custody, on a warrant issued by a justice of the peace of Russell county, against said Upshaw, on a charge of assault and battery, the same having been denied by the probate judge of Russell county. The other facts of the case will be found in the opinion.

James Q. Smith. , The complaint in this case was as follows: “ Robert Barber, as sheriff of The plaintiff, as sheriff Montgomery county, I as aforesaid, claims of ■vs. ¡-tbe defendant fifty dolMontgomery county, Alabama, I lars, due by account, [ a corporation.

Tried before Hon. W. S. Mudd. On the preliminary examination of W. P. Garrison, charged with the murder of Peyton Baughan, the two justices of the peace, John Hill, sr., and John W. Steele, before whom the examination was conducted, required the defendant to give a bond of $2,000 for his appearance at the next term of the court to answer any indictment which might be found against him, &c. The defendant then offered the following instrument as such bond : “ State of…

<p>■ Appeal from Circuit Court of Henry.</p> <p>Tried before Hon. J. McCaleb Wiley.</p> <p>The opinion states the facts.</p>

Tried before Hon. J. MoOaleb Wiley. The appellant having commenced suit against one Johnson, a non-resident, by attachment, Pynes, who was administrator of the estate of Johnson’s mother, was summoned by garnishment to answer what he was indebted as administrator, to said defendant.

<p>[TBOVEB BOB CONVERSION OE A SLAVE.]</p> <p>1. Judgment of court of concurrent jurisdiction ; force and effect of as plea or as evidence. — In civil cases the judgment of a court of concurrent jurisdiction, directly upon the point is as a plea, a bar, and as evidence, conclusive, between the same parties upon the same matter directly in question in another court. And the cause of action is the same when the same evidence will support both actions, although the actions may happen to be founded on different writs.</p> <p>2. Judgment in replevin in Florida; how far conclusive in Alabama. — Tho exemplification of a judgment in replevin, rendered in the circuit court of Florida, between the same parties upon the same cause of action, is as conclusive in Alabama as in Florida, although given in evidence un" der the general issue.</p>

Heard before Hon. S. K. McSpadden. All the facts of the ease will be found in the opinion. cited 16 Ala. 52 ; 18 Ala. 68 ; 2 Ala. 521;… Held: that where alimony is allowed as incidental to a dissolution of the marriage, the sum fixed may afterward be changed, increased or diminished, to effectuate the object of the law in giving alimony, in any manner- consistent with equity.— Wheeler v. Wheeler, 18 111. 40; Foote v. Foote, 22 111. 425; Boioman v. Worthington, 24 Ark. 523,…

Tried before Hon. John J. Martin. The appellant was guardian of Ella Darden, and at her instance was cited to make a final settlement of his accounts. . Being a non-resident, he was examined by interrogatories as a witness in his own behalf.

Tried before Hon. Littlebebry Strange. The appellants, in their representative capacity, sued to recover a tract of land from the appellees. The complaint contains one count, based upon the possession of the decedent Wilkins, and another upon that of the plaintiffs as administrators.

Tried before Hon. T. L. Appleby. The opinion states tbe material facts of the ease. We admit that under section 1788 of the Code of 1852, the widow would not be entitled under the statement of facts; for that section only exempts land as against the creditors of the estate, and the estate of the deceased must be insolvent in fact before said section operates.

Heard before Hon. B. B. McCraw. The opinion contains the facts material to an understanding of the questions decided. [The briefs did not come into Reporter’s hands.]

Tried before Hon. M. J. Saeeold. Action by payee against Thos. W. DeYampert, Lewis Turpin, B. S. Melvin and J. E. Reynolds, makers of a promissory note.

Tried before Hon. James Q. Smith. The court will judicially know that “ Montgomery” means Montgomery county. — Smith v. Robinson, 11 Ala. .272; Hargrove v. Smith, 1 Ala. 80; Richardson v, Williams, 2 Por. 241. 2. It is said in reply to the above, that the defect in the summons is cured by the complaint, The complaint and suit are utterly inconsistent.

A%eal from Probate Court of Henry. Tried before Hon. J. B. Appling.

Tried before Hon. John Moore. This suit, which was an action on a promissory note, was begun on 27 th. March, 1866, by John K. Oulien, in his representative capacity as administrator of William Cullen, deceased, against H, B. Campbell, John Morrow, and Thos. Cummings. Cummings was not served, and the suit appears to have been discontinued as to him. John E. Cullen died.after the suit was brought, and before judgment was rendered.

Tried before Hon. J. MoCaleb Wiley. This was an action brought by the appellant, as executor of the estate of Thomas A. Thornton, deceased, against the appellee, Thornton. Held: it is true, that if an executor purchases a part of his testator’s estate, he is, after the expiration of the term of credit, chargeable with the amount as cash. The reason assigned is, that he is the party both to pay and receive, and can not sue himself, — See, also, Duffle v, Buchanan, II Ala. 27.

Tried before Hon. Adam C. Felder. The city authorities of Mobile, under section 58 of the charter, (Acts 1865-66, p. 223,) paved Royal street from St. Michael to St. Francis street, with Nicholson pavement.

Heard before Hon. Adam: C. Felder.' The facts of this case are very similar to those in Mayor, Aldermen, Ac., of Mobile v. Dargan, Ex’r, reported on pages 310-21 of this volume, the material difference being, that in this case the appellee did not own any real estate along the street improved, but owned a street rail road franchise and operated a street rail road on and over the street improved.

Tried before Hon. J. Q. Smith. Before the passage of the act of the 10th of October, 1868, for the relief of laborers and employees, the appellants obtained judgment against McDonald. Dowe was afterwards summoned, by writ of garnishment, to answer what he was indebted to said McDonald.

Tried before Hon. John D. Cunningham. The plaintiff, W. J. Bibb, had, at the January term, 1869, of the city court of Montgomery, recovered a judgment for $305 75, against one John W. Martin ; and in this case, at the February term, 1870, of said court, sought a judgment against A. A. Janney, garnishee, as debtor of said John W. Martin.

Tried before Hon. Adam C. Felder. The facts are sufficiently stated in tbe opinion. [Although careful search has been made for tbe briefs in this case, the Reporter has been unable to obtain them.]

The record does not give the name of the presiding All the facts necessary to a proper understanding of the question decided by the court, will be found in the opinion. The action is brought under section 2376 of the Revised Code. That section renders the separate estate of the wife liable for articles of comfort suitable to her degree in life, &c., such liability to be enforced at law by action against husband and wife jointly, or a'gainst husband alone.

Tried before W. C. Oates, Esq., an attorney of tbe Court, und ersection 758 of the Code. On the hearing of the petition of the appellant, Shiver, in the probate court, to substitute certain lost records, &c., that court refused to allow the substitution, dismissed the petition, and taxed the petitioner with costs ; and the evidence having been made part of the record by bill of exceptions, Shiver appealed to the circuit court.

Tried before Hon. Jas. Q, Smith. This was an action of detinue, commenced by the appellant, M. O. Robinson, against the appellee, Aaron Richards, to recover the mules. Appellant having made the statutory affidavit and bond, the sheriff took into his possession two mules sued for; and appellee failing to give bond within the time prescribed by law, the mules were delivered to the appellant.

<p>Appeal from Circuit Court of Chambers.</p> <p>Tried before Hon. Littleberry Strange.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>[No briefs came into hands of Reporter.]</p>

Tried before Hon «Jas. Q. Smith. Noble The plaintiffs in the motion demurred to the special plea, and their demurrer having been overruled, they declined to plead further, and the court rendered judgment in favor of defendant, and taxed plaintiff for the costs, &c., hence this appeal. [No briefs came into Reporter’s hands.]

Heard before Hon Adam C. Felder. In 1858, W. D. Simonton was appointed guardian of B. F. McDonald, qualified and gave bond, as required bylaw, in the sum of twelve hundred dollars, with T. B. McCall and G. L. Mushat as his sureties.

Heard before Hon. Adam C. Eelder. The facts of this case may be stated as follows : In the year 1860, the appellant held as assets of his intestate a judgment in favor of one Jackson, against George Givhan, and in satisfaction of the same took a promissory note made by said George Givhan, Sarah, his wife, and Philip Givhan. The satisfaction of said, judgment was the sole consideration of said notes.

Tried before Hon. J. F. Conoley. This case is an appeal from the probate court of Dallas county, in the matter of the application to prove the last will and testament of William Curtis, deceased. The proponent is Miss Mary Eliza Ulmer, the granddaughter of testator, and daughter of Mrs. Mary June Ulmer, the testator’s daughter, who died after the alleged last will and testament was made, and after the testator’s death.

Tried before Hon. John Elliot. The appellees applied for a rule against the appellants to show cause why a peremptory mandamus should not issue requiring them to issue bonds to the extent of two hundred thousand dollars, to be applied for the improvement of the river, harbor and bay of Mobile, a.s provided for in the act approved February 16, 1867, “ to provide for the improvement of the river, harbor and bay of Mobile,” passed by the general assembly of the State of Alabama.

<p>Appeal from Circuit Court of Barbour.</p> <p>Tried before Hou. J. McOaleb Wiley.</p> <p>The point decided appears sufficiently in the opinion.</p>

Heard before Hon. Adam C. Eelder. In tbe year 1855, Dr. George Lingen, a citizen of Alabama, then and at the time of his death, domiciled at Mobile, begat appellant by Appoline Bock, who, at the time appellant was conceived, lived at Mobile, but shortly after-wards went to France, where appellant was born December 1, 1855. Appellant was both begotten and born out of lawful wedlock, and Dr. Lingen and Appoline Bock were never married.

<p>Appeal from Chancery Court of Bullock.</p> <p>Heard before Hon. B. B. McCraw.</p> <p>The facts are sufficiently stated in the opinion.</p>

Tried bfore Hon. John Elliott. This was an action of forcible entry and detainer, commenced by Dubroca against Ladd, on tbe 22d of May, 1868. The second count of the complaint, which avers “ that defendant (appellant) entered on said lands peaceably, and by force or threats detains the same/’ was demurred to, “ because it was not in accordance with the statute, and was insufficient to authorize the action.” The demurrer was overruled, and defendant excepted.

Tried before Hon. J. McCaleb Wiley. The facts of the case are stated in the opinion. 1. The note sued on is Fielder’s individual property. The application of the proceeds of the sale of the mortgaged property, to the debts due the firm of Sessions & Fielder, was made by the firm of Sessions & Fielder, and Fielder, as an individual, is not affected by the acts of the firm.

Tried before Hon. Jas. S. Clark. This was an action of trespass brought by the appellee against the Nashville & Decatur Bail Boad Company, to recover damages for the killing of a mule by the locomotive of said company.

Tried before Hon. Robert Dougherty. The complaint in this case was as follows: “ William Mickle, plaintiff, ] Augustus Pinckard and Warren Bachus, defendants. The plaintiff, William Mickle, Chambers Circuit Court, Spring Term, 1867. claims of the defendants, Augustus M. Pinekard and Warren Bachus, the sum of one hundred dollars, due by promissory note made by them on the 22d of February, and payable one day after date, with interest thereon.

Apaeal from the Circuit Court of Barbour. Tried before Hon. H. D. Clayton. The appellee, who was indorsee of a bill of exchange, brought this action against the appellant, who was indorser thereon. The bill was both drawn and indorsed by appellant, who, being unable to write, signed in the usual way by his mark, but there was no attesting witness.

Tried before Hon. P. G. Wood. The complaint in this cause (the name of the parties and style of count being here omitted,) was as follows ; • “ The plaintiff claims of the defendant three hundred dollars, due by account on 1st day of January, 1866, for work and labor done and services rendered for the defendant, at her request during the year 1865; also, the further sum of four hundred and six dollars, due by account on the 1st day of January, 1867, for work and labor done…

<p>[JUDGMENT BY DEFAULT — ACTION ON BKOMISSOBY NOTE.]</p> <p>1. Summons; wihal, not sufficient to support judgment hy default. — A summons not signed by the clerk, will not support a judgment by default in an action of debt.</p> <p>2. Acceptance of service; when must he proved. — A judgment by default, where the service of the summons is acknowledged, by endorsement in writing thereon, can not be sustained without proof of the service of summons ; nor is such a judgment cured by the statute of amendments.</p>

Heard before Hon. B. B. McCraw. The facts are sufficiently stated in the opinipn. The bond to make titles on the payment of the purchase-money, executed by the appellee, was not stamped at the time of its execution, and has never been stamped; it was error in the court to have given complainant any relief founded upon a contract, in refusing to stamp which he had violated the law.

Tried before Hon. George Goldthwaite. The facts are sufficiently stated in the opinion. [The briefs did not come into the Reporter’s hands.]

Heard before Wilson Williams, Esq., a solicitpr of the court, as special chancellor. This was a bill in equity, filed on the 14th day of March, 1887, by the complainants as heirs of Robert M. Reid, deceased, “ and as such, joint owners or tenants in common” of certain lands described in the bill, to set up and enforce the vendor’s lien on said lands for the unpaid purchase-money thereon.

Heard before Hon. J. H. Burdick. This is an appeal from certain rulings and decrees of the probate court, in tbe matter of the final settlement of the estate of R. P. Anderson, deceased, on the accounts filed by appellant as administrator cum testamento■ annexo ; the widow of testator and the minor heirs, by their guardian ad litem, being contestants.

J. McCaleb Wiley. The facts are sufficiently stated in the opinion. That the account sued on by appellant was obviously not an open account within the statute of limitations, and therefore was not governed by the statute of limitations of three years. — Many v. Mason, 8 Port. 230; Shepherd v. Wilkins, 1 Ala. 62 ; Caruthers & Kinkle v. Mardis, 3 Ala. 599 ; Mims v. Sturtevant, 18 Ala. 359; Bradford v. Barclay and Wife, 39 Ala. 33.

Tried before Hon. J; McCaleb Wiley. John Ward was appointed administrator of the estate of one Pitts, in the year 1859, gave bond with the appellants as his sureties, and administered said estate.

Tried before Hon. Jab. Q. Smith. Tbe facts are stated in the opinion. Neither the record nor the docket give the name of appellee’s counsel.

Appeae from Circuit Court of Jefferson. Tried before Hon. W. S. Mudd. This was a real action in the nature of ejectment, commenced by Hawkins (the appellant) against Hudson (the appellee).

Joshua P. Comans. This was an application by petition to the probate court, by the appellant, a creditor of the estate of John McDonald, deceased, to set aside, vacate, and declare null and void, the grant of letters of administration by said court to the appellee, and all the subsequent orders, decrees and proceedings in tbe administration of said estate, particularly tbe order of sale of tbe lands and the decree of insolvency.

Tried before Hon. Willis C. Wood. This was an application of the minor heirs of one Smith, by their next friend, for the removal of the appellant as administrator de bonis non of the estate of said Smith, on the ground, among others, that he had never filed an inventory of the assets and property of said estate which had come into his hands, although eighteen months have elapsed siqee his appointment; and that he had failed to make any settlement of said administration, as…

<p>fAPPEAL EROM ORDER OE CIRCUIT COURT GRANTING A NEW TRIAL.]</p> <p>Is A new trial; when may he allowed. — A rehearing and new trial maybe allowed in a suit at law, if the application is made within four months after the rendition of the judgment in the case sought to be reheard.</p> <p>2. Same; when not allowed. — But a rehearing and new trial will not be allowed for other grounds than those mentioned in the Revised Code.</p> <p>3. Appeal on an order grcmting a rehearing ; when entertained. — When all the evidence upon which a rehearing is granted is set out in the bill of exceptions, an appeal will be entertained by this court on an order allowing the rehearing, and the order will be reversed and cause remanded, if the evidence does not justify the order so allowed. »</p>

<p>[action on feomissoey note.]</p> <p>1. Circuit court, order made in conformity to rule nisi.; when not erroneous. An order of the circuit court, made in conformity with the command of this court, on a rule nisi, granted on petition for mandamus, is not error. The making of such an order, in conformity with the command of this court, is but the execution of a decree of this court, and is necessarily final.</p> <p>2. Contract made in 1863 ; Judgment, when not prematurely rendered. — H sued B iu an action of debt, on a promissory note made June 1, 1863, in the circuit court of Bullock county; the suit was commenced March 18, 1867, and judgment by default was rendered for plaintiff on the 30th day of April, 1868 ; such judgment was not prematurely rendered. This court will take judicial notice that April 30,1868, was a day of the spring term of the circuit court of said county of Bullock, in the year 1868, and which was the third term after the commencement of said suit. — Pamph. Acts, 1866-67, pp. 604, 607 ; Rev. Code, § 750, p.'233.</p> <p>Note by the Reporter. — At a subsequent day [of the term, the appellant applied for a rehearing. The application did not come into the Reporter’s hands. The following response was made thereto, by—</p>

Heard before Hon. N. W. Cooke. The facts are sufficiently stated in.the opinion. [None of the briefs or arguments accompanying petitions for rehearing in this case came into the Reporter’s hands.]

Tried before Hon. David Campbell. Robert J. Glenn died intestate on the 4th day of May, 1858, leaving a plantation and farming implements, &c., and a number of negro slaves, who were, at the time of the intestate’s death, worth $37,000.

Tried before Hon. J. McCaleb Wiley. The points decided are sufficiently stated in the opinion. [The briefs did not not come into Beporter’s hands.]

<p>[VINAL SETTLEMENT OV EXGCUTOB IN PBOBATE COUBT, AND ORDER OV DISTRIBUTION OV decedent’s ESTATE.]</p> <p>L Appeal wider section 2246 of Revised Code; what day must he excluded in estimating time for. — The day on. which a decree of the probate court was rendered must be excluded in estimating the twenty days time allowed for an appeal under section 2246 of the Revised Code.</p> <p>2. Decree of prohate cowri; what such final decree as is governed hy section 3485 of thó Revised Code. — An appeal from the decree of distribution by the probate court on the filial settlement of an executor, &o., may be taken within the time prescribed by section 3485 of the Revised Code.</p> <p>3. Legatees; when can not he required to account for advancements. — -The legatees under a will can no't be required to account for advancements upon a distribution of the estate, unless it is so required by the will.</p> <p>4. Same; what executor may retain out of legacies. — -The executor may ree tain out of each legacy the sums paid out by him to each legaterespectively, but in ascertaining such payments he can not combine with them the amount of the advancements made in the life-time of the testator.</p>

Heard before Hon. W. B. Woods. The facts upon which the decision is based are sufficiently stated in the opinion. [The briefs did not come into the Reporter’s hands.]

Heard before Hon. Wm. Skinner. This was a bill in equity exhibited by the appellees, Septimus D. Cabaniss and Charles P. Cabaniss, as executors of the last will and testament of Samuel Townsend, deceased, against Wm. W. Sanders and Virginia Markham, as executor and executrix of the last will and testament of Samuel 0. Townsend, deceased, and sought an account of the amount due on five several promissory notes, made by Samuel 0.

<p>[AEPEAL PROM JUDGMENT NIL DICIT. J</p> <p>1. Complaint; what is parí of ■ — The statement'of the names of the parties to a suit in the margin of the complaint, is a part of the complaint.</p> <p>2. Same; what sufficiently describes character m which plaintiff sues. — A complaint which describes the plaintiff in the margin, “ administrator of Moses Gunn, deceased,” merely, and declares that the note sued on is the property of his intestate, sufficiently avers the representative character of the plaintiff, and the ownership of note after judgment by nil dicit.</p>

Tried before Hon. Jas. Q. Smith. On the 18th of May, 1870, the appellants were served with notice that, at the next term of the circuit court, the auditor, by Attorney-General Morse, would move against them for judgment, for the amount of certain unpaid taxes due by appellant, Graham, as tax collector, and the other appellants as his sureties.

Tried before Hon. John Elliott. The appellee, Granger, sheriff of Mobile county,'levied an execution, in 1869, on the partnership property of C. Brewer & Co. C. Brewer claimed, in a proper manner, his share of the property as exempt from execution, under section 2881 of the Revised Code. Notwithstanding the interposition of this claim, the sheriff refused to return it to him. Brewer thereupon brought this suit against him and the sureties on his official bond.

Heard before Hon. B. B. McOraw. The facts are sufficiently stated in the opinion. 1. Judgment rendered on the 14th of March, 1866, is not a lien on land. The act of the 10th of December, 1861, which first gave to judgments the effect of liens, was repealed by the first section of the act of 8th of December, lb63. This latter act provided for liens, but it was repealed by the act of the 23d of February, 1866. 2.

Atteal from Chancery Court of Barbour. Heard before Hon. B. B. MoOraw. On the 31st of October, 1865, McCormick and appellant’s testator agreed in writing for the sale by the former to the latter of eight hundred and eighty acres of land and a large amount of personal property, which is particularly set out in the agreement, together with the price of the lands per aere, and of each article of the personal property.

The record does not name the presiding judge. The appellee instituted suit by attachment, on the 3d of June, 1869, against the appellant, a domestic corporation, before a magistrate, returnable to the circuit court, for wages due appellee as superintendent of appellant’s business. No security was given upon the attachment bond; the writ issued, and was returned by the officer, “ levied upon the equity and right of redemption” of appellant in certain lands.

Tried before Hon. C. F. Moulton. Tire facts appear in the opinion of the court. Held: that the holder having given no information to the notary, the fault lay at his door, and that he could not charge the indorser.

Heard before Hon. Wi. Skinner. The appellant, as administrator of the estate of A. A. AeMen, deceased, on the first of September, 1866, filed his petition and schedules, duly verified, in the probate court of Madison county, alleging the insolvency of the estate he represented.

Heard before Hon. T. L. Appleby. The facts appear in the opinion. 1. The motion seems to have been made by Geo. W. Hooper, who was a stranger to the proceedings, and had no interest therein, and was in no way connected with said estate, and yet he is allowed by the court to appear and move to remove from office the executor, who had no notice of the proceedings.

<p>Appeal from Probate Court of Butler.</p> <p>Tried before Hon. H. W. Watson.</p> <p>The facts are sufficiently stated in the opinion.</p>

Heard before Hon. Adam 0. Felder. Micael Prieto died on the 18th of August, 1860, seized of certain land in Mobile, leaving two sons, appellant and Francis D. Mosely, and the following will, which was duly probated: “In the name of God, Amen, I, Micael Prieto, do make and publish this as my last will and testament: “Item 1. I request that all my just debts shall be paid by my executor, hereinafter appointed. “ Item 2.

Tried before Hon. Luther R. Smith. This is an action of detinue for seventy-eight bales of cotton, commenced on the 6th day of October, 1865. The proofs, so far as necessary to be set forth, tend to show that, on the 17th of January, 1865, the appellees in this court, who were the plaintiffs in the court below, owned the cotton in controversy.

Heard before Hon. John Q. Loomis. The facts appear in the opinion. [Appellant’s brief did not come into Reporter’s hands.] The question whether a vendor must, as a condition precedent to the enforcement of his lien, exhaust his remedy, is res adjudicóla in this State.

In this case, the appellees submitted a motion to dismiss the appeal, and the appellant a counter motion for leave to perfect the appeal' in this court. The Reporter can not find either of the motions on the motion docket, and this, and the fact that the cause is in the hands of one of the judges for decision, prevents a more definite statement of the facts, material to the questions involved, than is already given in the opinion.

Heard before Hon. B. B. McCbaw. This was a bill in equity filed by Trammell, the appellant, and others, tax-payers and freeholders of the county of Chambers, in behalf of themselves and all other residents and tax-payers of said county, who would contribute. to the .costs of suit, against John Appleby, probate judge and member of commissioners court, and the other persons composing said commissioners court of Chambers county, and against John L. Pennington, claiming to be…

Tried before Hon. G. Horton. This was a petition to the probate court of Mobile, by Tbos.

Tried before Hon. Littleberry Strange. The appellants, as the executors of the last will and testament of W. B. S. Gilmer, deceased, in 1869 commenced their action in the circuit court of Chambers county against appellee, as the administratrix of Benjamin B. Avery, deceased, and complained on a promissory note made by defendant’s intestate, on the 22d day of January, 1868, and payable one day after the date thereof.

This was an application to this court, by petition, on the part of the Selma & Gulf railroad company, for a writ of mandamus, to be directed to the court of county commissioners of Dallas county. Held: two thousand and five legal votes were east for “ subscription,” and seven hundred and fifty-three legal votes for “ no subscription,” and the re-suit of said election was duly estimated and declared as required by law.