Volume 46 — Alabama Reports

Tried before Hon. C. E. Moulton. This appeal was taken on the record from a conviction of murder in the second degree in the lower court. No counsel appears for appellant, and no errors are assigned^ Thejopinion states the points on which the case turns.

Tried before Hon. J. McCaleb Wiley, ' It appeared from the complaint, that the plaintiffs, Burnett & Martin, as partners, were seeking to recover damages upon a policy of insurance issued by the defendant to Burnett, Martin & Swan, on their stock of goods and . merchandise. It was averred that prior to the loss, Swan retired from the firm,' and sold all of his interest to his said copartners.

<p>Appeal from the Circuit Court of Lauderdale county.</p> <p>Tried before Hon. W. L. Whitlock.</p> <p>The facts appear in the opinion.</p>

Tried before Hon. J. McCaleb Wiley. The facts of this case may be stated as follows: The appellant, on the 28th of January, 1867, sued out an attachment against the appellee, in the circuit court of Henry county, which was executed by summoning one George Searcy, a person supposed to be indebted to said defendant, as garnisbee. The garnisbee appeared, and answered in writing, that he was indebted to said defendant in the sum of seven hundred and eighty-six 73-100 dollars.

Tried before Hon. P. O. Harper. The appellants, Tom Petway, Hilliard Petway and Emanuel Overstreet, were jointly indicted for wilfully setting fire to and burning a gin-house, the .property of J. H.… Held: commencing on the 1st Monday in February, 1871, and continuing two weeks, for the trial of unfinished criminal business. All witnesses must be. summoned to attend said term, and all process relating to the business of said term made returnable to it.

Tried before Hon. J. Q. Smith. The facts appear in the opinion. — The only question in this case is, whether the widow of a decedent without children is entitled to occupy the family residence at the time of the death, as a homestead, which was held under a lease, and not in fee simple.

<p>[BILL IN EQUITY BY TENANT IN COMMON AGAINST I-IIS CO-TENANT EOE SALE OE LANDS EOE PARTITION.]</p> <p>1. Chancery, coiei't of; what sale has no jurisdiction to decree. — In this State, the court of chancery has no jurisdiction to decree the sale of the lands of a tenant in common, who is of full age, without his consent, for the purpose of partition, because the same can not be equitably divided.</p> <p>2. Tenant in common of fall age, lands of; tvlien can not he exactly divided, what allotment may he made. — If the lands of tenants in common of full ago are not susceptible of an exact division, an 'allotment may be made in unequal shares, with compensation for the inequality, by creating a rent or charge upon the land ; or, if the land allotted to one exceeds in value that allotted to the other, the court may compel the former to make compensation to the latter, for equality of compensation.</p> <p>3. Same; rules as to partition of lands, title of which is in dispute, to what applies. — The general rule, that partition will not be decreed in equity where the title is in dispute, applies to a legal and not to an equitable title ; and if, on a bill for partitioú, the defendant wishes to avail himself of an equitable defense, as, for instance, a defense arising out of a contract for purchase, &c., he must file a cross bill, or, under our system, he may set it up in his answer in the nature of a cross bill, and pray such relief as he may believe he is entitled to.</p> <p>4. Partition, <6 c, hill for; when decree for rent, &c., may he rendered on.— On a bill for partition, where one of the tenants in common has been in the exclusive possession and enjoyment of the joint property, the chancellor, in a proper case, may decree an account lor occupation, rent, &c.</p>

This was an action commenced by the appellant against the appellees jointly to recover damages for the non-performance of the contract evidenced by the following instrument : “Mobile, July 2d, 1866, “ Contract between John McQuaid, of the first part, and Robert Powers, of the second part. — It is hereby agreed that Robert Powers is to build for and deliver to John McQuaid, on or before 5th August next, a cottage residence, [here follows plan, dimensions, &c., of cottage.]…

Heard before Hon. A. C. Eelder. The appellee, a ward, on 23d June, 1869, filed his bill by next friend, against appellants, sureties on the bonds of his guardian. The facts are as follows: William Knox, in 1859, was appointed guardian of appellee, and qualified as such, with appellants as his sureties.

<p>[APPEAL PROM ORDER SETTING ASIDE STATUTORY JUDGMENT ON FORFEITED REPLEVY BOND, &0.]</p> <p>3. Judgment on motion affecting adverse party, made after final judgment; when erroneotis. — After final judgment, the parties are not presumed to be in court; therefore, any motion made in the cause, after that time, materially affecting the interests of the adverse party, must be on notice, otherwise the judgment will be erroneous.</p>

<p>[action against common carbieb for failure to deliver goods.]</p> <p>1. Railroad companies are common carriers. — A railroad company in this State is a common carrier, and whilst the goods are in transitu it is liable to all the responsibilities of common carriers.</p> <p>Same ; when liability of, as common carrier, ceases.- — But where the bill of lading shows that the goods transported were shipped to the owner as consignee, “ care of the railroad eompajiy,” to be delivered at a station on the railroad, if the goods are transported with the usual expedition, and the owner or his agent is not at the depot designated for the delivery at the time the goods arrive, ready to receive them, the goods may be deposited in the warehouse of the company, and from • such deposit the liability of the company as common carrier ceases.</p> <p>3. Same; when responsible as warehouseman for hire. — Goods so deposited must be kept by the company under the responsibility of warehouse-men for hire, whether actual storage be charged or not, and the company must act without fraud or bad faith.</p> <p>4. Same ; when charge that carrier is liable only for loss occasioned by gross negligence, is correct. — In a suit for damages for loss of the goods in such a case, if there are two counts in the complaint, the one on a contract of common carriers, and the other on a contract of a warehouseman without hire, a charge asked by the defendant under the latter count, that the company is only responsible for losses and injuries occasioned by gross negligence, is proper, and should be given.</p>

Tried before Hon. J. Q. Smith. The proceedings in this case were instituted in the circuit court by Dinkins, the appellee, by a petition for mandamus, against the appellant, as the county treasurer of Montgomery county, to compel him to pay a jury certificate. At the January term, 1869, Dinkins was regularly summoned, drawn and sworn as a petit juror, and served as such for five days.

Brigman and others have filed in this court a transcript of the record and proceedings upon a forfeited undertaking of bail in the circuit court of Dallas, from which it appears that Brigman, having been indicted for forgery, he and others entered into an undertaking of bail for hi a appearance at the nest term of court. Failing to do this, judgment nisi was rendered against the obligors on said undertaking of bail, which was afterwards made final.

Heard before Hoñ. B. B. McOraw. In October, 1867, one Walker recovered judgment in the circuit court of Bullock against John W. Bledsoe, complainant’s vendor, and another person.

<p>This was an original application by petition, by "W. M. Locke et al. to this court for a mandamus, or other appropriate process or writ, to compel the judge of the city court of Eufaula “ to dismiss the action pending in said court in favor of the Importing and Exporting Company of Georgia, against petitioners, for the reason that security for costs was not lodged with the clerk before the commencement of the action,” &c„ the said city court having overruled the motion made by petitioner to dismiss said suit, &c.</p> <p>In support of the motion in the court below, petitioners proved that the complaint was written on one side of a sheet of “ foolscap” paper; that it filled up one side of said leaf of paper, and about one half of the opposite and only other side; and that upon this last mentioned side of foolscap paper, and immediately following the close of the complaint, seeurity for costs appeared, as follows : “ The plaintiff being a corporation, we hereby bind ourselves as security for costs in this case.</p> <p>Eufaula, April 28,1871. Shorter & McKleroy.”</p> <p>The record does not show that' there was any written approval of the security for costs.</p> <p>In support of the motion, petitioners further proved that John Gill Shorter and John M. McKleroy, and either of them, were authorized by the clerk of the court in writing .to sign his name officially as clerk, &c., to all writs, &c., and approve all bonds, &c., for costs, &c. This authority was dated July 5th, 1870. It was also proved that John M. McKleroy, on the 29th of April, 1871, after having written out the complaint and the security for costs above mentioned, dated the same, and signed the clerk’s name to the summons, handed the same to the deputy clerk, who had been duly appointed, taken the oaths required by law, &e., and instructed said deputy clerk to deliver the same to the sheriff, which was done on the same day. This being all the evidence, the court overruled the motion.</p> <p>1. Section 2804 of the Revised Code requires corporations, before commencing suit, to lodge with the clerk security for costs. Nothing short of a lodgment with the clerk will answer the requirements of this statute.</p> <p>Section 2804 of the Revised Code, as it originally stood, applied to ordinary suits, and required a lodgment of security for costs with the clerk, or its endorsement upon the complaint. One of these things had to be done. — -Ex parte Bobbins, 29 Ala. 74. This case arose prior to the 20th of February, 1860, when said section 2802 was amended so as to allow security to be given to the officer issuing the writ of attachment, or endorsed upon the writ of attachment ; but in construing that section of the Code before it was amended as above, the court held that in attachment cases, when the writ was issued by an officer other than the clerk of the court to which it was made returnable, the plaintiff could attach the complaint to the writ, and endorse the security upon such complaint. This would comply with the law. But either this or a lodgment with the clerk of the court had to be done, Under section 2804 of the Bevised Code, as construed in Ex parte Robbins, swpra, nothing short of a lodgment with the clerk, or endorsement upon the complaint, would answer the demands of the law; and the endorsement upon the complaint was good, because expressly allowed by that statute.</p> <p>Section 2804, which applies alone to suits by corporations, is not in the alternate; only one way of giving security for costs is provided for — that is, by lodgment with the clerk — and this particular mode will admit of no substitute. The statute must receive a strict construction.— Ala. & Tenn. Rivers Railroad v. Harris, 25 Ala. 285.</p> <p>2. The security in the case now before the court was endorsed upon the complaint, and accepted by John M. MoKleroy, one of the attorneys for the plaintiff, at the time he issued the summons, in the name of the clerk, under written authority shown in the bill of exceptions. This was not a lodgment with the clerk within the meaning of section 2804 of the Bevised Code. It can no more answer the demands of that section than the endorsement of the security upon the writ of attachment issued by an officer other than the clerk of the court to which it was returnable, would answer under section 2802 of the Bevised Code before it was amended on the 20th day of February, 1860. And in Ex parte Robbins, supra, it is expressly decided that the endorsement of the security upon the writ of attachment was insufficient under section 2802 of the Bevised Code.</p> <p>3. Besides, the power to take and approve a bond for security for costs is an act judicial in its nature, and can not be delegated to an attorney either by a writing or verbally ; and the taking and approving of the security for costs by said MoKleroy amounts to nothing. It can have no more validity than the judicial act performed by a private person appointed by a judge of a court to decide a given case. For this reason, if for no other, the security for costs, given and accepted in the manner shown by the evidence, is equivalent to no security, and the suit should have been dismissed.</p>

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

<p>rsOIRE FACIAS ON FORFEITED BAIL BOND.]</p> <p>1. Undertaking of bail; when not void. — An undertaking of bail approved and taken by the sheriff under the order of a chancellor, is not void because the application for bail was not verified ; nor because proper notice was not given to the solicitor, and no writ of habeas corpus, or precept to the sheriff to produce the body of the prisoner, was issued. These requirements are directory, though they ought not to be omitted.</p> <p>2. Same ; plea, what subject to demurrer.- — A iilea against the rendition of a judgment absolute on a forfeited undertaking of bail, that the accused appeared at the court, and was arrested on a capias issued by the clerk afteivindictment found, without more, is subject to demurrer.</p>

<p>[JUDGMENT BY DEFAULT — WITHDRAWAL OF APPEARANCE.]</p> <p>1. Appearance, withdrawal of; presumption in regard to, under facts of this case. — Where the entry of a judgment by default recited that the plaintiff came by his attorney, “and the counsel of the defendant ash leave to withdraw their appearance, which is granted, and the defendant being called, came not, but made default,” &c., and this was the only evidence of any appearance by theidefendant, — Held, on appeal, that it was not the defendant’s appearance that was withdrawn, but that of the counsel, as erroneously entered;</p>

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

<p>Appeal from the Circuit Court of Perry.</p> <p>Tried before Hon. M. J. Saeeold.</p> <p>The facts appear in the opinion.</p>

Tried before Hon. W. J. Haralson. The facts appear in the opinion. 1. The evidence admitted was irrelevant and illegal. Its direct tendency,, and the only object of its introduction, was to prejudice the mind of the jury against the appellant, because of his commission of another offense than that with which h© was charged. The offense with which he was charged was committed prior to the spring 'term, lfc66, of the court, when the indictment was found.

Tried before Hon. Luther R. Smith. The appellee and his partner, Hutton, now deceased, in their firm name of Snedecor & Hutton, sued out an attachment against appellants, as husband and wife, on an affidavit that said firm had a moneyed demand, the amount of which could be certainly ascertained, to-wit, two hundred and forty-one dollars and thirty cents, due the first day of February, 1868, against the appellants, John Y. Wright and Georgia IL, his wife; and that- they were…

Tried before Hon. Wi. L. Whitlock. This was an action commenced by appellee against the appellant on promissory note, a copy of which is as follows : “$1540.00.

Tried before Hon. B. L. Wheelan. The facts are sufficiently stated in the opinion. — The contracts of infants, not made for necessaries, are generally voidable, not void, and may be ratified by the infant after he is of age. 1 Pars, on Cont. 243; Chitt. on Cont. 145-6, and notes. A promise to pay the debt, made to the creditor, is generally a ratification; and there are acts from which such promise will be inferred.

Tried before Hon. J. MoCaleb Wiley. This is an indictment for selling liquor to a minor. Held: that the revenue laws of 1868 do not expressly repeal section 3618.

Tried before Hon. J. McOaleb Wiley. On the 28th of December, 1868, the general assembly of Alabama passed an act entitled, “ an act to suppress murder, lynching, assaults, and assaults and… Held: regarded or punished as such, “ nisi per lecjem tertee,or, in the words of our constitution, his rights should be forfeited “ by due course of law,” before its protection can or will be withdrawn from him. — 7 Bac. Abr. pp. 239, 350, (e) 353, 351, 358 ; Constitution of Alabama, § 3.

Tried before Hon. Charles Pelham. This was an indictment of the husband .for an assault and battery upon his wife. The indictment charges that before the finding thereof, “ George Fulgham assaulted and beat his wife, Matilda Fulgham, against the peace,” &e. Appellant went to trial on plea of not guilty, and was convicted and fined.

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

Tried before Hon. J. D. Cunningham. The facts are as follows : At the July, 18/0, term of the city court of Montgomery, an indictment was found against the appellant for living in adultery, &c. The indictment, in its caption, gave the title of the court as the “city court.” No other title appeared elsewhere in said indictment. Appellant demurred to the indictment for its failure to state in what court it was found.

<p>Appeal from Probate Court of Montgomery.</p> <p>Heard before Hon. David Campbell.</p> <p>The facts appear in the opinion.</p> <p>(No briefs came into the Reporter’s hands.)</p>

Tried before Hon. John Elliott. Appellant was tried before the mayor of the city of Mobile for carrying on business without license, and was fined twenty-five dollars. On appeal to the circuit court, the judgment of the mayor was affirmed, and hence this appeal.

Heard before Hon. A. 0. Felder. The appellees, minors, filed in May, 1867, by next friend, a bill in equity against appellant, John P. Kennedy, seeking to set aside the conveyance to said Kennedy of a house and lot in Mobile, made by their father, J. C. Marrast, deceased, on the 30th November, 1863.

Heard before Hon. A. W. Dillar». In 1860 one of the appellees, Mrs. McGee, then a Miss Mason, in contemplation of marriage with James McGee, joined with him in a deed by which they conveyed her estate, real and personal, to appellee, Foster M. Kirksey, to hold the same in trust for the sole and separate use of Mrs. McGee after the* marriage, which, as the bill of complaint states, took place on the day after said deed was made, without being subject, in any manner, to the…

Tried before Hon. J. McCaleb Wiley. The appellants, Burrell Brown, William Ashley, William Weems and Wesley MeKissock, who were jointly indicted under section 3612 of the Revised Code for disturbing religious worship, went to trial on plea of not guilty, were found guilty, and fined.

Tried before Hon. James Q. Smith. The facts are stated in the opinion. — 1. The sentence of the 9th June was without authority of law. 1st. Because the sentence'of the court (81st May,) had been 'complied with; 2d. The defendant could not be held in custody for failure to pay the costs, and 3d, the 9th June sentence is too uncertain.

Heard before Hon. Adam C. Felder. The facts are set forth in the opinion. — This is not a bill to establish a set-off, or collect a debt with which the estate of Siler is charged by the contract of the executors for lawyer’s fees, and hence the cases cited by appellee’s counsel do not apply.

Tried before Hon. M. J. Sapfold. The defendant and two other persons were jointly indicted for an assault with the intent to murder one Andrew J. Baxley. The indictment was in the form prescribed by the Revised Code. On motion of the defendants, a severance was allowed by the court, and a separate trial granted to each defendant.

Tried before Hon. P. O. Harper. At a sale of the personal property of the estate of James Craigg, made by his executors in 1860, the appellants purchased a mule and gave their promissory note therefor, payable to the executors on the 1st of March, 1861, In 1864 the appellant, Wright, paid the note with Confederate currency, which one of the executors agreed to receive, on the condition that Wright, who was the administrator of Wm.

<p>Appeal from Circuit Court of Coffee.</p> <p>Tried before Hon. J. McOaleb Wiley.</p> <p>The facts appear in the opinion.</p>

Tried before Hon. J. McCaleb Wiley. Appellant was indicted and convicted at the fall term, 1870, of Coffee circuit court, under the provisions of section 2 of an act to incorporate the Fort Browder male academy, approved February 8, 1858, which makes it an indictable offense to sell liquors or wines within half a mile of said academy, except for medical purpose's.' It was admitted that the appellant sold spirituous liquors to the person, and at the time and place, as charged…

Tried before Hon. John D. Cunningham. The indictment in this case, which was properly filed and endorsed, was as follows : State oe Alabama, ) City Court, County of Montgomery, f October Term, 1870. The grand jury of said county charge, &o., that before the finding of this indictment, Andrew Johnson (colored) on his examination, &c., falsely swore, &c,, [here follows the facts constituting the perjury,] against the peace and dignity of the State of Alabama.

Tried before Hon. W. E. Hunnicutt. The facts are set out in the opinion. A will once revoked, in this State, can not be republished by parol.— Witter v. Mott, 2 Conn. 67; 1 Bedfield, 374, § 14; Love v. Johnson, 12 Iredell, 355; 9 ib. 280; Jackson v. Holloway, 7 Johns. 394; Jackson v. Potter, 9 Johns. 312; 4 Desaussure, 305; 3 ib. 346 ; 1 Williams on Ex’rs, side P-103. The English statute of frauds is a part of the American common law.

. Appeal from the Circuit Court of Montgomery. Tried before Hon. J. Q. Smith.

Tried before Hon. C. F. Moulton. The case is fully stated in the opinion. Neither the docket nor transcript shows the name of appellant’s counsel.

Tried before Hon. J. McOaleb Wiley. Appeal from Circuit Court of Barbour. The appellant was the plaintiff in a suit for the collection of a promissory note, which the appellee made in favor of Shorter and Baker, the executors of the will of Milton A. Browder, deceased. The consideration was property bought by him at a sale of the personal property of the estate by the executors, under an order of the probate court.

At a former day of the term the court, on the petition and motion of the Selma & Gnlf Railroad Company, granted an alternative mandamus to the court &f county commissioners of Dallas county,… Held: they were held by virtue of special acts. . The Code was designed (section 830) to supply this omission or vacuum, which was developed by the decision of this court.— Wightman v. Karsner, 20 Ala. 446, in Jauuary, 1852.

Tried before Hon. J. McCaleb Wiley. The appellant having brought an action against the appellee to recover damages for the breach of an agreement to deliver certain bacon, &e., introduced as evidence the written contract for the delivery of said bacon, made by appellee in i868, when the court, on motion of appellee, excluded the instrument from the consideration of the jury, because it had no United States internal revenue stamp affixed thereto.

Appear from Circuit Court of Mobile. Tried before Hon. C. W. Rapier. The facts are sufficiently stated in the opinion. — It is admitted that a deed from the husband to the wife is void at common law. But it is not so in equity.

Tried before Hon. P. O. Hakber. The complaint in this case was as follows : “The State of Alabama,) Circuit Court, Butler county, j Fall term 1866. B. Graves, guardian minor heirs of B. Graves, plaintiff, vs. G. W. Bradley, B. B. Rue, defendants. The plaintiff claims of the defendants the sum of four hundred dollars due by promissory note made by them on the 16th day of February, 1864, and payable on or before the 25th December next, after date, with interest thereon.

Tried before Hon. John Elliott. This was an action commenced by Campbell against Ingersoll for money had and received by him to and for the use of the plaintiff. There was a jury trial, and verdict and judgment for Campbell.

Tried before Hon. P. O. Habpek. On the 5th of January, 1863, the appellee executed a writing in which she acknowledged that on the 30th of December, 1862, she had sold to the appellant fourteen bales of cotton, for which she had received full payment. She also agreed to keep the cotton at the disposal of the appellant, and to take as good care of it as if it were her own, and also to deliver it to him on his demand.

<p>Appeal from Circuit Court of Pickens.</p> <p>Tried before Hon. Luther R. Smith.</p> <p>The facts are sufficiently stated in the opinion.</p>

Tried before Hon. Adam C. Felder. B. F. Porter having sold a piece of land to Patterson, upon which Abrams claimed a lien,' and Patterson refusing to pay the purchase-money on that account, one thousand dollars of it in bills of the Northern Bank of Alabama was, by agreement of the parties, deposited with the appellant, Henry, to await the issue of Abrams’ claim.

<p>[bill in equity to foreclose mortgage.]</p> <p>1. Note already delivered, signing of as surety; when imposes no obligar tion on surety. — The signing of her husband’s note, previously made and delivered by him, by a wife, as his surety, does not impose on her any obligation which will sustain its subsequent recognition.</p> <p>2. Same. — Where a widow gave her note, secured by mortgage, for the payment of her deceased husband’s debt, at the instance of the promisee, the mere fact that his notes were given up to her is not proof of a valid consideration. It must be shown that obtaining the notes, as something of value, entered into the inducement to her agreement.</p> <p>3. Same. — In such a case, loss subsequently sustained on account of a failure to file the notes as claims against his insolvent estate, can not create a consideration, although the non-claim was in consequence of the-creditor’s belief that he had otherwise secured their payment.</p>

<p>Appeal from Probate Court of Lowndes.</p> <p>Tried before Hon. J. V. McDuefie.</p> <p>The facts are sufficiently stated in the opinion.</p>

Tried before Hon. J. McCaleb Wiley. ■ The facts appear in the opinion. — The indictment is framed under the revenue law of 1868. It is insufficient in not averring that the business was engaged in since the third Monday in March, 1869, § 111 of revenue law of 1868, (Acts 1868, p. 330.) 2. The proof shows that the whisky was sold on only one occasion, and that selling whisky was not the vocation of the defendant.

Tried before Hon. J. McCaleb Wiley. This is is an action for rent, commenced by attachment, in the names of the assignees of the landlord against the under-tenant of the lessees. The facts may be briefly stated as follows: In December, 1866, Briers, the owner of a tract of land in this State, rented the same to Scott & Sanders for one year, by contract in writing.

<p>[trial op dependant i$j circuit court, on statement by solicitor, apter DEMAND POR TRIAL BY JURY MADE IN THE COUNTY COURT.]</p> <p>1. Indictment; when necessary for trial of misdemeanors transferred from county couH to airenit court. — Where a defendant, charged with a misdemeanor before the county court, demands a trial by jury, he is entitled to have the trial of the case transferred to the circuit or city court, and can then only be tried by indictment.</p> <p>2. Charge to jury; xohat erroneous. — Where all the evidence is set out, and there is no proof of venue, it is error to refuse to charge the jury “that even if they believe the evidence they can not find the defendant guilty.” Such a refusal ignores the necessity of proof of venue.</p> <p>[Note by Reporter. — On the authority of this case, the judgment in the case of McGawin v. The State, was reversed and cause remanded, &c.]</p>

<p>[ACTION TO RECOVER STORAGE OF COTTON.]</p> <p>1. Cotton stored in warehouse; purchaser of, for ivhat storage Uable. — A purchaser of cotton stored at a warehouse is personally liable for the storage accrued during his ownership, though such ownership be unknown to the warehouseman. But he is not liable for storage charges accrued prior to that time, unless there is an agreement to that effect.</p>

This was an application to this court by the petitioner, Burrell Bottoms, for a mandamus or other appropriate writ to compel the circuit court of Barbour, Hon. J. McCaleb Wiley, judge presiding, to grant a motion made in that court and overruled, to quash the attachment issued in the cause of Bussell v. Bottoms, and to strike the cause from the docket, on the ground that the action had been discontinued, and because the affidavit for attachment did not disclose any cause of…

<p>[SILL IN EQUITY TO EOBECEOSE MOBT0AGE.]</p> <p>1. Answer required and made under oath; what not overeóme hy. — The answer of a defendant to a bill in chancery when required on oath, and responsive, is not overcome by the testimony of the complainant as a witness.</p> <p>■ 3. Decree in chancery on facts of case ; when only will he reversed. — A decree of the chancery court on the facts of a case, will not be reversed unless decidedly contrary to the weight of evidence.</p> <p>(No briefs came into the Reporter’s hands.)</p>

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

Tried before Hon. John D. Cunningham. On the 20th day of November, 1867, Vernon Henry Vaughan, made a conveyance, which recites that on the 15th day of October, 1862, said Vaughan had received $8,000 in Confederate money, which was a part of the separate statutory estate of his wife, Cornelia, which he had employed in various investments, treating them as his own, -and then held in his own name ; that most of said investments, and the property conveyed, - were derived from…

Tried before Hon. J. McCaleb Wiley. The appellant brought suit against appellee, on a promissory note made by him, and Mary McGee and Rebecca Searcey, who were not sued in the action.

J. D. Cunningham. The facts appear in the opinion. — 1. If it be conceded that the Mutual Aid Association is a corporation, it is plainly a corporation “for municipal purposes,” within the meaning of section 1 of article 13 of our State constitution; and therefore the act creating it is valid. — Horton v. Mobile School Commissioners, 43 Ala. 607; Gelpeclce v. City of Dubuque, 1 Wallace,. 175, and cases therein cited. 2.

Tried before Hon. J. McOaleb Wiley. This was a suit instituted by appellee against appellant, on 24th September, 1858, for the recovery of certain lands in Barbour county, of which Shorter & Scott were the original government patentees. Shorter died in 1836, and Scott prior to 1853, in which year Scott’s administrator obtained from the probate court of Russell an order to sell at Clayton, Barbour county, the undivided half interest of his intestate in said lands.

Heard before Hon. Adam O. Felder. The. facts of this case are briefly these : On the 21st day of March, 1871, Patrick Robinson, the appellee, was appointed by the court of county commissioners tax collector of Montgomery county, and duly qualified as such, to fill the vacancy occasioned by the failure of the former tax collector, Falconer, to give an additional bond, &e. Shortly after this, Robinson made a demand upon Falconer for the books, papers, &c., of the office, but…

Heard before Hon. N. W. Cooke. The facts are stated in the opinion. — 1.

Tried before Hon. M. J. Saffold. On the first day of December, 1865, the appellants sued out an original attachment against the appellee, returnable to the May term, 1866, of the circuit court of Perry county.

Heard before Hon. William Skinner. The case made by tbe bill and answers may be briefly stated as follows: On the 16th day of September, 1861, Brickell obtained a judgment in the circuit court of Lauderdale, against George G. Armistead and others for $1161 and costs. Execution was issued on this judgment on the 27th day of September, 1861, and returned unsatisfied. On the 29th day of November, 1862, George G. Armistead intermarried with the complainant in the court below.

Tried before Hon. Charles Pelham. The facts appear in the opinion. — 1. The books of' the Talladega Insurance Company were competent evidence, under the plea of “ nvl tiel corporation.” By these the plaintiff expected to prove, in part, acceptance of the charter, as they showed acts of “ user ” by the corporators. The manner in which the books were brought into court did not affect the case, for it was only incumbent on the plaintiff to identify the books. 2.

<p>Appeal from Chancery Court of Cherokee,</p> <p>Heard before Hon. B. B. McCeaw.</p> <p>The facts are stated in the opinion,</p>

Tried before Hon. John Elliott. This was an action on the case for damages,. by the appellee against the appellant.

Tried before Hon. J. McCaleb Wiley. Stapleton, as the administrator of Odom, sued the appellants on a promissory note made by them in favor of his intestate. Under the ploas of the general issue and payment, it was shown that the note was given for a balance due on a purchase of cotton made by the defendants from Odom.

<p>This was an application for mandamus, based upon a state of facts which are fully set forth in the opinion,</p>

Tried before Hon. T. L. Appleby. The appeal is taken from the refusal of the probate court to require the appellee, as administrator, to give a new bond. The proof is, that the administrator himself and one of his sureties are virtually insolvent. Another one is apt to pay his debts, but his means are extremely limited.

Tried before Hon. Charles Pelham. In January, 1866, the commissioners court of Randolph county made an order appointing appellee agent for the distribution of rations to the poor and indigent of the county.

<p>[TBESPASS FOB KILLING CATTLE, &C.]</p> <p>1. Railroads; sections of Revised Code in relation to; how constr ued. — The sections of the Revised Code upon railroads are to be construed as one law, and taken together as a whole.</p> <p>2. Railroad companies; when liable for stoclc Idlled, &c. — Railroad companies, in this State, are liable for damages for killing or injuring stock by their locomotives and cars, if they fail to comply with the requirements of caution prescribed in the Revised Code, wh6n such compliance is within the power of their engineers or agents.</p> <p>3. Same; what diligence must be shorn, to relieve from liability. — But i these requirements can not be complied with, the company is bound to show that their agents or servants used all the means in their power, under the circumstances, known to skillful engineers, to prevent the injury complained of. When this is shown the company is not liable.</p> <p>i. Claim, presentation of; what sufficient. — Proof that the auditor of the company had frequently acted as depot agent and received and paid claims for stock killed, there being no proof that there was any depot agent at the place where the claim was presented, shows a sufficient compliance with the Revised Code, requiring claims for stock killed to be presented in writing in sixty days to the president, treasurer, superintendent or some depot agent of the corporation.</p> <p>(No briefs came into Reporter’s hands.)</p>

<p>[JUDGMENT BY DEFAULT AGAINST COUNTY IN ACTION OF ASSUMFSIT.]</p> <p>3. County; may he sued in samo manner as natural person. — A county is a body corporate in this State, and it may be sued in the same manner that a natural person may be sued, by one who has claims against it, if no other provision is made for their payment. — Rev. Code, § 2558.</p> <p>2. Same. — In such a suit, judgment by default may be taken against the county, if the suit is not defended.</p> <p>3. Same. — A judgment, thus taken, will not be set aside on appeal to the supreme court, if it is founded on county warrants, issued for claims presented and allowed, for services rendered the county, and a stated account, when the only objection to the judgment, assigned aB error, is that the complaint fails to show a sufficient cause of action, and the complaint, though inartificially drawn, shows a substantial cause of action.</p> <p>4. Judgment hy default agamsi county; what service sufficient to authorize— A judgment by default against a county, founded upon service of process, which shows that the summons was “ executed ” by the sheriff, without also showing upon whom the service was made, is not erroneous, for this reason.</p>

Tried before Hon. J. McCaleb Wiley. The appellees, Margaret Rackley, formerly widow of James G. Barwick, deceased, in her own right, and G. W. Rackley, as next friend of James R. Barwick, minor child of said deceased, brought this action against Reddin Bar-wick, the appellant, to recover damages for the conversion by bim of certain personal property of said deceased, which they claimed was exempt from administration and sale, for the use of the family.

<p>Appeal from Circuit Court of Shelby.</p> <p>Tried before Hon. Charles Pelham.</p> <p>The facts are sufficiently stated in the opinion.</p>

Tried before Hon. John Elliott. The appellant sued to recover from the appellee a lot of land in the city of Montgomery. In 1858, she being then a minor, filed her bill by her next friend in the chancery court, alleging the following facts.

At its February term, 1871, the city court of Montgomery overruled and refused the prayer of the Selma & Gulf Railroad Company for a mandamus to compel the treasurer of the State of Alabama to pay to petitioner a warrant, drawn in its favor by the auditor, for the sum of $40,000, under an act entitled “An act to loan and appropriate the three per cent, fund and its interest,” approved, February 18th, 1860, and the said petitioner excepted to the decision, took a bill of…

Tried before Hon. W. S. Mudd. This cause of action arose in the following manner : John Robertson conveyed to his son, John T. Robertson, a tract of land in consideration of the payment by the latter of several judgments against him. Among these was one owned by Mrs'. Eliza Cunningham. It had been previously paid by a co-obligor, but this was forgotten.

Tried before Hon. B. L. Whelan. The facts are stated in the opinion. Does the process of attachment lie against this bank under the circumstances of this case ? That is the . question to be first settled. We say it does not lie for three reasons : 1st. The proceeding by attachment is statutory, is in derogation of the common law, and there is no law of Congress or of the State giving such a remedy against a national bank. Drake on Attach. § 4, p. 7.

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

<p>Appeal from Circuit Court of Cboctaw.</p> <p>Tried before Hon. Luther B. Smith.</p> <p>The facts are sufficiently stated in the opinion.</p>

Tried before Hon. P. O. Harper. The complaint in this case was as follows : “Lydia Oreswell > The plaintiff, a married woman; and vs. > wife of William H. Cresswell, claims R. 0. Hall. ) of defendant $91.80, due by account for money loaned to him by plaintiff in the year 1860, with interest thereon.

Heard before Hon. B. B. McCraw. On the 24th of September, 1864, Staples filed his bill •against Latham and Hollingsworth, alleging that Latham bought a tract of land, lying in this State, from Hollingsworth, in the year 1865, for the sum of about seventeen hundred dollars, and that, to secure the payment of this sum, he executed his written obligation for that amount, payable to Hollingsworth; that after this sale, Hollingsworth became indebted to Staples by promissory note…

Tried before Hon. T. L. Appleby. This was an appeal by Hightower and wife from the order of the probate court dismissing their petition filed on the 10th day of July, 1869, for the removal of appellee as administrator of the estate of Matthew Matthews, deceased, Hightower’s wife being an heir of said decedent.

Heard before Hon. B. B. Me Craw. Tbe appellee, Thomason, who was a non-resident and complainant in the court below, filed his bill against E. T. and Joel A. Hudspeth, the appellants, seeking to enforce a vendor’s lien on six hundred and thirty acres of land mentioned in the bill, and to have corrected certain misdescriptions in the deed therefor, which had been executed to him by E. T. Hudspeth, and prayed for general relief, &c. It appears from the bill and answers that…

Tried before Hon. W. S. Mudd. This was a real action in nature of ejectment, under the Code, for the recovery of land, brought by appellee against the appellant. Held: that a sale might be made under a venditioni exponas. This decision is a rule of property. It has been generally acted on. It may have been the guide in the issue of the venditioni exponas in this case. .Such decisions should be adhered to.

Tried before Hon. James Q. Smith. Whitley induced Moseley’s wife, who, as he knew, had no authority in the premises, to agree to sell Moseley’s lands to him, by informing her that he had made the contract with her husband, who was then absent in the army.

Tried before Hon. John Elliott. On the 18th day of March, 1868, one J. A. Powell, being indebted to Eobertson, Brown & Co., the appellees, in the sum of $370 72-100, they, on that day, sued out an attachment against him, which was immediately levied upon twelve bales of cotton, which were delivered to appellants upon making the statutory affidavit that they had a just claim thereto, and executing the proper bond, &c. Powell having failed to appear at the trial term, judgment…

Tried before Hon. H. C. Eussell. This was a petition by Enoch Mills, the administrator de bonis non, with the will annexed of Matthew Britt, deceased, in which Virginia Mills, wife of said Enoch Mills, by him as her next friend, and Matthew, Sarah, Moses, and John Britt, legatees, &o., joined, alleging that the final settlement of said estate, by Benjamin F. Petty, administrator of said estate, made on 3d December, 1866, is null and void, and not binding on them, and praying…

Tried before Hon. James S. Clark. The appellant being sued in trover for the conversion of a promissory note made by one Grillis, offered to prove by several witnesses that the maker, said Gillis, was insolvent from the time appellant received the note until said Gillis died, and that said Gillis’ estate was insolvent.

Tried before Hon. ,J. MoCaleb Wiley. The facts appear in the opinion. The indictment contains three counts. In the first and second counts the form in the Code is followed, with an averment in the second that the liquor was sold in quantities less than a quart. The third count is drawn with reference to the revenue law of 1868, and attempts to charge an offense under that law. .

On the 15th day of February, 1869, an order was made by the probate court of Dallas, directing a citation to issue to appellant, as the executor of Alanson Saltmarsh, to appear on the 8th day of… Held: his order will be presumed to have been made at the regular August term, for every presumption is indulged in favor of the regularity of what was done. The argument in favor of the administrator is, that this order was not made at any term, regular or special.

<p>This is an action by appellant against appellee, a common carrier, for damages to goods in shipment. The bill of lading is set ont at length in the opinion. On part of appellant it was in proof that the freight was discharged from the “Nyanza,” appellees’ boat, at Montgomery, received by Terry, appellees’ agent, and remained on the wharf for five days, when it was shipped by the agent to Wetumpka, on the “Montgomery,” a boat not owned by appellees ; that the “Montgomery” looked to the appellees for charges, and that the freight was not delivered to the appellant at Montgomery. There was evidence tending to show that the “Nyanza” engaged to carry said freight to Wetumpka. There was evidence showing the damaged condition of the freight when landed at Montgomery, and additional damage sustained between Montgomery and Wetumpka. It was further proved by appellant that during the time of this shipment three safe boats were running from Mobile through to Wetumpka. On part of appellee, there was proof tending to show that the “Nyanza” did not run through to Wetumpka, and was not engaged to carry this freight through to that point. Upon these facts the court charged the jury,.(among other things,) that “the legal effect of the bill of lading, and “the note appended to it was an undertaking by the defendants to deliver the goods at Montgomery, and from that point to send them to Wetumpka, should there be any boats going through to the latter place; that upon a delivery of the goods at Montgomery, according to the terms of the bill of lading, the liability of the defendants as common carriers would cease; that after such delivery their liability, by virtue of the note appended to the bill of lading would be that of agents for the re-shipment of the goods to Wetumpka, and that if the defendants observed the proper degree of care in re-shipping the goods to Wetumpka from Montgomery, they would not be liable for any damage done to the goods by the negligence or carelessness of the officers and crew of the steamer ‘Montgomery,’ after they had received the goods.” The appellant excepted to this charge, as well as to the refusal of the court to give the following charge:</p> <p>1. If the jury believed from the evidence that the “Uyanza” was in the employment of the defendants, and engaged to carry said freight to Wetumpka, but concluding not to go to Wetumpka, landed the freight at Montgomery, and sent it forward by the steamer “Montgomery” to Wetumpka, then the defendants are liable for the negligence and carelessness of the officers and crew of the “Montgomery” in regard to this freight.</p> <p>The charges given, and those refused by the court, are now assigned as error.</p>

Tried before Hon. L. R. Smith. The facts appear in the opinion. — 1. The contract of sale in this case was incomplete, until the cotton was weighed and the credit given on Sutherland’s note.— Screws v. Roach, 22 Ala. 675; Magee v. Billingsley, 3 Ala. 679. 2. The case of McGrea v. Young, 43 Ala. 622, is altogether different. In that case, there was a written conveyance, which of itself passed the title without a delivery. Morgan vs. Smith, Wykoff & Nichol, 29 Ala. 283.

Tried before Hon. Milton J. Saeeold. The appellee sued the appellant to recover from him money- which the complainant alleged she had deposited with him as indemnity against his liability as bail for her son, who was in jail, under the commitment of a magistrate, for assault with intent to murder.

<p>[ACTION ON PBOMISSOBY NOTE.]</p> <p>X. Promissory note; what prima fame not dischargeable in Confederate ourreney. — A promissory note made in this State on 31st October, 1863, for a certain number of “dollars,” and. payable January 1st, 1864, is not prima facie subject to be discharged by a payment in Confederate treas-, ury notes. In such a note the word dollars means dollars in lawful money of the United States.</p> <p>S.. Prror without injury; what no ground for reversal. — A charge of the court which is more favorable to the defendant objecting to it than the testimony justifies, is, at most, but error without injury, and is not a ground for reversal.</p> <p>3. Same; party complaining must show error. — When a charge is of such doubtful meaning as to leave it uncertain whether it would produce a correct result or not, the party objecting to it, must show that he would be injured by it. Any process that will reach a correct result is suffi- ■ cient.</p>

Heard before Hon. Wit. Skinner. The report of the ease when it was in this court under the name of Ragland's Ex'rs v. Morton, as referred to in the opinion, is as follows: “ The bill in this case was filed on the 6th August, 1860, by Daniel S. Morton, against John W. Scruggs and Robert B. Lindsay, individually, and as executors of the last will and testament of George O. Ragland, deceased, together with the children and heirs-at-law of said Ragland and his deceased wife ;…

Tried before Hon. P. 0. Harper. This is an action by Knigbt, as transferee, against Atkins, as maker of a promissory note.

Tried, before Hon. C. E. Moulton. The appellant was tried and convicted on an indictment for setting up, or being concerned in setting up or carrying on a lottery, without legislative authority, &c. None of the evidence is set out in the bill of exceptions, but it states that after the evidence had closed, and the general charge had been delivered to the jury, the counsel for the defendant verbally asked the court to charge the jury, “ that under section 7 of the charter of…

Tried before Hon. Thos. M. Arrington. The suit was commenced by summons and complaint on the 20th day of April, 1868, and was founded on a bill of exchange for $1385.66; which was drawn by a John H.… Held: that the plaintiff is not compelled to make the succeeding administrator a party t though it is his privilege to do so, if he chooses.

Tried before Hon. P. O. Harper. The facts are fully stated in the opinion. — The-act of congress granting the right of way over the public lands of the United States to the railroad, is found in the 10th volume of United States Statutes at Large, page 28.

<p>¡Action on eeomissoex note.]</p> <p>1. Section 2704 of Revised Gode; exceptions in, to what applies. — The exception to the general rule of the competency of witnesses, notwithstanding their interest in the suit or being parties to it, as enacted in section 2704 of the Revised Code, ajiplies to transactions with, or statements by, a deceased executor or administrator, in suits by or against his successors in the administration.</p> <p>(No briefs came into Eeporter’s hands.)</p>

Heard before Hon. William Skinner. This is a bill filed by the appellant against the appellee, ■ to enforce a vendor’s lien in favor of the “ Oity of Tuscumbia,” for the purchase-money of certain lots in said city, formerly sold to the appellee, Mrs. Lindsay.

Heard before Hon. A. W. Dillard. This is a bill filed by Bibb and wife, as complainants, to compel the sureties of Samuel T. Carpenter, deceased, as the guardian of Mrs. Bibb and her sister Annie, who died in 1865 or 1866, to account for and pay over to Mrs, Bibb certain alleged sums of money remaining in the hands of said guardian, unaccounted for, at his death in 1862, which belonged to her in her own right, and in right of her deceased sister.

Tried before Hon. Littleberr^ Strange. The appellant, as plaintiff, in his complaint claimed “of the defendant (the appellee) as administrator of Walker R. Thornton, deceased, the sum of five hundred dollars due by promissory note made by the said decedent in his life-time in these words : “One day after date I promise to pay, or at my death, W. G. Conn or bearer, the sum of five hundred dollars for labor done by W. G. Conn, for value received, this 11th day of December,…

Heard before Hon. W. L. Whitlock. This is an action at law commenced by summons and complaint, issued on the 16th day of October, 1866. Wharton, executor, was plaintiff below, and Cunningham and others, were defendants. There was a judgment, on verdict, for the plaintiff, but for a much less sum than that claimed in the complaint. From this judgment said plaintiff takes this appeal.

, Tried before Hon. J. McCaleb Wiley. The appellants were sued by the appellee, as administrator of Wiley Daniel, on a promissory note made by them payable to him in his representative capacity. They defended on the ground that the note was given in payment for forty bushels of corn and a wagon, purchased at a sale had under an order of sale made by the probate court on the verbal application of the administrator.

Heard before the Hon. W. W. Dobson. This was a proceeding by appellants, John Lane and Martha, his wife,, against appellee, as guardian of said Martha, to compel him to make final settlement of his guardianship.

Tried before Hon. C. E. Moulton. The appellees were agents during the years 1867 and 1868, of seven life and fire insurance companies not incorporated by the State of Alabama, and as such transacted their business in the city of Mobile during those years, without having paid to the trustees of the medical college1 at Mobile the sum of $200 for each company during each of the years before transacting business, &c., as required by section 1186 of the Bevised Code.

Tried before Hon. H. C. Russell. The facts upon which the case turns are sufficiently stated in the opinion. — The order of sale was not void as first granted. — Batcher v. Batcher, 41 Ala. p. 26. Did that order lose its validity by the suspension of it ? The order was never revoked. Allowing the suspension of the order, as set forth in the record, did not revoke the order, it is a question of authority to sell.

• Appeal from Chancery Court of Barbour. Heard before Hon.- B. B. McCraw. ' This was a bill exhibited by the appellee against the-appellant, and sought to subject to the vender’s lien certain lands described in the bill for the unpaid purchase-money due thereon, which was evidenced by a promissory note, executed by defendant.

Aureal from Chancery Court of Elmore, Tried before Hon. W. B. Woods. The facts in this case are fully set out in the opinion of the court, — 1. The answer being on oath must prevail, where it denies the allegations of the bill. The agreement to pay the note in Confederate money is responsive to the bill, and it is a denial of the liability to pay in legal tender money. — Story Eq. PL § 849a; Dan. Ch. Pr.

Tried before Hon. E. M. Keils. This was an action brought by appellees against appellant to recover damages for the breach of a warranty of soundness of a horse sold by appellant to appellees.

Tried before Hon. James S. Clark. The appellees as plaintiffs claimed of defendant damages for the breach of an agreement made by the defendant’s intestate, in 1859, to pay $1000 in stock of the Memphis and Charleston Railroad Company on the 1st January, 1860, as an endowment of the university. The matters of defense were set up, by consent, under the plea of non assumpsit.

<p>Appeal from the Chancery Court of Limestone.</p> <p>Heard before Hon. Wm. Skinner.</p> <p>The facts are fully stated in the opinion.</p>

Tried before Hon. John F. Conoley. This was an appeal from the decree of the probate court rejecting certain claims against the insolvent estate of N. J. Ogletree, on a partial settlement and distribution thereof. On the 12th day of December, 1868, appellant filed her claim, which was properly verified, (which had been previously presented to the administrator), in the office of the judge of probate.

Tried before Hon. John D. Cunningham. This was an action of tort, by appellee against appellant, commenced by ordinary summons and complaint, and served upon the managing agent of defendant, to recover damages for the negligent and careless driving by defendant of a horse hired of plaintiff, whereby the horse was killed, &c. The complaint was as follows : “ Stephen D. Pleasants, plaintiff,) The plaintiff claims vs. | of the defendant, a cor- Western Union Telegraph Com- j…

The appellees, Cole & Son, who were merchants in Blount county, Alabama, became indebted in the spring of 1869, to Ewin, Pendleton & Co., in various sums.

Tried before Hon. John E. Conoley. This is an appeal from a decree of the probate court, allowing certain claims against the insolvent estate of J. E. Prestridge, deceased. From the bill of exceptions it appears that appellees bad filed and presented two claims against said estate, one for $110,000.25, against John E. Prestridge, and the other for $35,022.21, for money paid out and expended by appellees for the firm of Prestridge & Knox.

Heard before Hon. B. B. McCeaw. The bill was filed by John 0. Towles, as the administrator of the estate of Henry L. Wilkerson, deceased, against Warrenton Costley and Samuel Spence as the administrators of the estate of James W. Killam, deceased. The essential facts of the case are these: Wilkinson & Killam were partners for some time before 1862, when Wilkinson died intestate and Towles was appointed administrator of his estate.

Chancery Court of Lowndes. Heard before Hon. A. C. Feldeb. Some few years prior to 1841, Francis Lewis died intestate in Lowndes county, leaving a widow and seven children, his only heirs-at-law, and a large estate, real and personal. Complainant was the youngest child, and after her father’s death, and in the year 1839, she, being then a minor, married one Lampkin, who died in 1856.

Tried before Hon. John Elliott. This was an action for the recovery of personal property in specie under the Code, commenced by the appellant, Eslava, against the appellee.

<p>Appeal from the City Court of Mobile.</p> <p>Tried before Hon. O. F. Moulton.</p> <p>The facts are sufficiently stated in the opinion.</p>

Tried before Hon. Littleberrx Strange. Cocke, who died during the pendency of the appeal, which was revived in the name of his administrator, commenced suit by attachment against one Griggs, and had Swanson, the appellee, summoned to appear at the fall term, 1868, of the circuit court, to answer as garnishee, &c.; at that term the garnishee did not appear, and the case was continued.

Tried before Hon, J. McOaleb- Wiley. The appellant was indicted and convicted under section 3690 of the Revised Code for enticing away a minor. Ife appears that in 1865 Wade Hampton Turner, a minor, eleyen years of age, was, upon the application of his mother, apprenticed by the probate court to A. J. Lane. The proof offered of this, was an exemplified copy of the proceedings from the records of that court, under its seal.

Appeal* from City Court of Mobile. Tried before Hon. C. F. Moulton. At the February term (1871) of the city court of Mobile, the defendant was indicted for grand larceny, and at the same term was tried, found guilty, and sentenced to the penitentiary for five years. The defendant pleaded a special plea to the indictment, in the nature of autrefois convict.