Volume 47 — Alabama Reports

Tried before Hon. John D. Cunningham. Joe Johnson, the appellant, having been indicted for the murder of Henry Walton, was tried, found guilty of murder in the first degree, and sentenced to be hung. Having-reserved exceptions to various rulings of the court below, he brings the' case to this court by appeal.

Tried before Hon. M. J. Sapp old. The facts are stated in the opinion.

<p>[indictment fob malicious mischief.]</p> <p>X. Jury, province of; what charge invades. — A charge which assumes a fact to be proved, without referring to the jury the credibility of the evidence offered to prove it, and whether if credible it proves the fact, invades the province of the jury, and is therefore erroneous.</p>

Tried before Hon. P. O. Harper. The indictment in this case charged that Henry Ri'ce, alias Wright, “ broke into and entered the dwelling house of William. T. Spencer, with intent to steal,” &c, The defendant having gone to trial on plea of not guilty, was convicted, and sentenced to ten years imprisonment in the penitentiary.

Tried before Hon. M. J. Saffold. Reid Lockett, freedman, being indicted and on trial for carrying a pistol concealed about his person, the State introduced a witness who testified, that some time in August, 1871, while coming from Selma on the passenger train, he noticed defendant, and some time after this he saw the conductor eject defendant from the train for drunken and boisterous conduct.

Appear from Circuit Court of Dallas. Tried before Hon. James Q. Smith. 1, There was a clear variance in the proof. The proof offered shows a different offense, in law, from the one about which the perjury is alleged, and for which appellant was on trial. 2. There is no law whatever which authorizes two years imprisonment on conviction in a case of this kind. The sentence is therefore unlawful. — Eev. Code, § 3557.

Tried before Hon. James Q. Smith. The appellant, who was indicted for tlie murder of Harper James, was convicted of murder in the second degree and sentenced to the penitentiary for twenty-five years. The record shows that he was confined in jail at the time of the trial, and it does not show service upon him of a copy of the indictment and list of jurors summoned for his trial at least one entire day before the day set for his trial.

Tried, before Hon. W. L. Whitlock. The indictment in this case was as follows, omitting the caption, The defendant went to trial on plea of not guilty, and the jury returned the following verdict: “We, the jury, find the defendant guilty of robbery; imprisonment ten years in penitentiary.” The court passed sentence on this verdict on October 14, 1871, but the judgment entry does not show that defendant was asked before sentence was passed if he had. anything to say why…

Tried before Hon. C. F. Moulton. Appellant was indicted for selling spirituous liquors without license and contrary to law.

Tried before Hon. John D. Cunningham. Appellant was indicted, tried and convicted for the larceny of a horse, the property of John Murray, On the trial, Murray, in his direct examination, testified that the horse was in the habit of grazing near his stable and coming up regularly every night; that in the month of August, 1870, the horse was missing, and “continued missing, and did not come up at night for some eight days that a few days after this he went to Benton, and…

Aureal from Circuit Court of Limestone. Tried before Hon. James S. Clark. Held: that the defendant might challenge him. — Barlow v. State, 2 Blackf. (Ind.) 114; U. S. Dig. Or. Law, 489, § 395 ; O’Driscoll v. State, 2 Bays, (S. C.) 153, two cases. 5.

Tried before Hon. James Q. Smith. The facts are sufficiently stated in the opinion. 1. Held: “that at the common law a chasm or gap in the proceedings, by neglect to continue the cause, is a discontinuance of the action, and entitles the defendant to a discharge.

Tried before Hon. John Elliott. The facts are fully , stated in the opinion. 1.

Appear from Chancery Court of Lawrence. Heard before Hon. Wit. Skinner. This is a bill in chancery filed by Hodge L. Stephenson as the executor of the last will of James Wallace, deceased, and revived in the name of Theophilus Jones as his successor, to enforce a vendor’s lien on lands sold by said executor, under the provisions of the will, to appellant, Napier, trustee of his wife, Mary 0. Napier, in November, 1858, at public sale.

Tried before Hon. W. S. Muijd. The appellant, George Hughey, was indicted for the murder of James W. Crumbia, tried, found guilty of murder in the first degree, and sentenced to the penitentiary for life. The evidence shows that Hughey and Crumbia were brothers-in-law, living about half a mile apart, and between whom bad and unfriendly feelings had existed for some months previous to, and up to the time of the killing.

Heard before Hon. A. W. Dillard. The case made by the bill, answers and proof may be stated as follows: In May, 1860, and prior thereto, a partnership composed of R. H. and bis brother W. E. Offutt, did business in tbe city of Montgomery, Alabama, under tbe firm name and style of E. H. & W. E. Offutt. In the month of September, 1860, the firm was dissolved by the death- of W. E., who left E. H., the surviving partner, one of his executors.

Heard before Hon. Littleberry Strange. Reese, on the 19 th day of March, 1863, sold to McEbhany an interest in a. distillery, Reese receiving in payment therefor an order, drawn by McElhany in favor of Reese npon appellees, for “,$1,100 00 in Confederate currency.

Tried before Hon. W. S. Mudd. The administrator of Peter Martin, deceased, on the 25th of March, 1867, suffered a judgment nil dicit to be rendered against him as such administrator on a note executed by his intestate and himself, and payable January 1, 1861: An execution de bonis intestatis was duly issued on this judgment, and on July 22d, 1868, was returned “No property found.” Thereupon this action was brought against appellee as one of the sureties of the administrator…

Tried before the Hon. Luther R. Smith. This action was brought by Reuben Chapman, against the administrator with the will annexed of Mrs. Susan Lee, deceased; was commenced on the 9th September, 1865; and sought to recover an alleged unpaid balance of the purchase-money for a certain tract of land sold and conveyed by plaintiff to said decedent on the 23d December, 1858.

J. McCaleb Wiley. This was an action on a bill of exchange, brought by appellant against the appellees. The case was tried in the court below on agreed state of facts and pleading, the substance of which is as follows: Appellees pleaded in due form their plea of bankruptcy, and duly set out their discharges in bankruptcy in bar of the plaintiff’s right of action.

Heard before Hon. A. W. Dillard. The facts are sufficiently stated in the opinion. 1. The assessment against Miller was an exercise of the taxing power. It was, in no sense, the taking of private property for public use, by right of eminent domain. No more money was taken from Miller than his proper share of contribution to a public burthen. When property is taken by right of eminent domain, something more than the owner’s share of contribution is taken. 2.

Tried before Hon. Luther R. Smith. Tbe facts are sufficiently stated in tbe opinion. The demurrer to tbe complaint should have been sustained, on account of its non-conformity to tbe form laid down in tbe Revised Code, p. 677. Tbe judgment rendered September 3, 1866, in favor of Hale, adm’r, v. McLean et al., is void. It is a judgment by default rendered after tbe war, upon a summons issued February 8,1861, and executed February 12, 1861, by tbe sheriff of Cboctaw county.

Tried before the Hon. F. S. Ferguson, an attorney of the court, (Revised Code, § 758,) in consequence of the incompetency of the presiding judge, who was disqualified by interest.

Tried before Hon. P. O. Harper. Tbe facts are sufficiently set forth in tbe opinion. The bill of exceptions is the controlling part of the record as to what occurred in the oourt below.

Tried before Hon. J. Y. McDupebs, In the matter of the estate of Ann P. Strickland, deceased, on the petition of L. J. Bryan, as the administrator de bonis non, to set aside a decree of final settlement of the accounts of Jacob Bruce, the former administrator, since deceased, whose executrix, Mrs. Susan Bruce, was made a defendant to the petition. The petition was filed on the 27th of April, 1871.

<p>[CBEDITOBS’ BILI, IN EQUITY TO SET ASIDE MOBTGAGE.]</p> <p>1. Creditors’ bill by sbmple-oontraet creditors. — Section 3446 of the Revised Code confers upon simple-contract creditors the remedy, previously confined to judgment creditors, of a bill in chancery to set aside conveyances made with intent to hinder, delay, or defraud creditors.</p> <p>2. Mortgage to bona-fide creditor ; when void as against other creditors. Where a debtor, in failing circumstances, mortgaged to one of his principal creditors almost the whole of his estate, equal in value to fifty per cent, more than the debt secured ; stipulating with him, both in the conveyance and privately, for two or more years’ delay in its foreclosure, the mortgagee knowing that there were other creditors, who would thereby be hindered, delayed, and most likely totally defeated, — Held, that the mortgage was void, under section 1865 of the Revised Code, as against other creditors.</p>

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

<p>[bill in equity in natuee of bill foe fobeclosuee of mobtgage.]</p> <p>1. Mrs. L. joined her husband in a promissory note for her husband’s debt for $2,000, and also in a mortgage on her lands of her separate estate, derived from the will of her father since the passage of the Code, to secure the payment of said note to E. K. & Co.; afterwards Mrs. L. and her husband sold said lands to R. for $6,000, and R. was to pay the $2,000 mortgage debt ; R, then sold the same lands to B., and B. also undertook the payment of said mortgage debt to E. IC. & Co. But R. and B. failed to pay said mortgago debt, and thereupon the surviving partner of E. K. & Co. filed his bill against Mrs. L. and -her husband to foreclose the mortgage and to collect the mortgage debt. In this suit he failed, and the mortgage and note were held to be void as lo Mrs. L., — Held, that after the defeat of the mortgage, the $2,000 (the amount of the mortgage debt,) left in R.’s hands to pay this debt, was the separate property of Mrs. L.. which was secured to her by a vendor’s lien in her favor on said land, and she could file her bill in chancery by her next friend against her husband and B , who was in the possession of said land under R.’s deed, to enforce her lien for said $2,000 so left in the hands of B. as above said.</p>

Appear from the Chancery Court of Greene. Heard before the Hon. A. W. Durabd. The bill in this case was filed by Wm. O. Monroe, against Wm. M. Hamilton and others,.and sought the settlement of partnership accounts between the said Monroe and Hamilton, arising out of their joint farming operations during the year 1867, and the foreclosure of a mortgage executed by said Hamilton to secure an individual liability to said Monroe..

Heard before tbe Hon. Geo. P. Plowman. In tbe matter of tbe probate of tbe last will and testament of Dr. Edward Gantt, deceased, wbicb was propounded for probate by Samuel Leeper, one of the executors therein named, and contested by Mrs. Louisa Taylor and her' husband, LaFayette Taylor. Tbe case was submitted to tbe court, by consent, without tbe intervention of a jury; and its judgment and decree', refusing to admit tbe will to probate, .is now assigned as error.

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

Heard before the Hon. Adam C. Felder. The equity of the bill rests on the three grounds of fraud, discovery, and account. The fraud consists in the conveyance to King, which recites the payment of a valuable consideration, when in fact none whatever existed, and the intention was to hinder and delay the plaintiff in the collection of his demand, and the secret re-conveyance by King to the defendant.

Heard before the Hon. N. W. Cocke. The bill in this case was filed on the 3d November, 1863, by Lazarus Kinsey, the appellant, against Ralph O. Howard, as the administrator of John W. Freeman, deceased; and sought to enforce a vendor’s lien for the unpaid purchase-money of a certain tract of land, which had been sold and conveyed by complainant to said Freeman in his life-time.

Tried before Hon. John Elliott. The facts are sufficiently stated in the opinion. It is settled law on the subject of agency, that wherever an agent having proper authority makes a' contract for his principal, that contract is obligatory on the principal. — Story on Agency, § 442.

Heard before the Hon. B. B. McCkaw. The facts are sufficiently stated in the opinion. As Cato paid the money, in ignorance of the mortgage, though its record was constructive notice to him, and as Mrs. Colby, the executrix, received the money in ignorance of the fact that the note was given for the lot covered by the mortgage, the transaction was the same as if Cato had paid the money on the note in the hands of another person who held no mortgage.

Heard before the Hon. B. B. McCraw. The facts are sufficiently stated in the opinion. 1. The decree pro confesso against the non-resident defendants must reverse the chancellor’s decree. The recitals in it are not sufficient to sustain it. — Hartley v. Bloodgood, 16 Ala. 233; Boyiar v. Darden and Wife, 41 Ala. 322. 2. The publication itself was totally insufficient, being made in a newspaper published in Georgia. 3.

Tried before tbe Hon. Milton J. Saeeold. This was a motion by R. W. Dennis, as one of the heirs-at-law of John Dennis, deceased, to set aside a sale of certain lands by tbe sheriff under an execution against said John Dennis and one W. P. Jones. W. H. Cravey, tbe plaintiff in tbe execution, and W. 0. Beacb, tbe purchaser at tbe sale, were made parties defendant to tbe motion.

<p>Appeal from Chancery Court of Henry.</p> <p>Heard before Hon. Adam 0. Felder.</p> <p>The opinion states the case.</p>

<p>Appeal &om Circuit Court of Eussell.</p> <p>Tried before Hon. Littleberry Strange.</p> <p>Pacts are stated in the opinion.</p>

<p>Appeal from Circuit Court of Perry.</p> <p>Tried before Hon. Milton J. Sarpcld.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Appeal from the Circuit Court of Lawrence.</p> <p>Tried before the Hon. James S. Clark.*</p> <p>The facts are sufficiently stated in the opinion,</p>

Heard before Hon. Wm. Skinner. The bill is plainly multifarious, and the demurrer should have been sustained. It plainly seeks to join in one bill distinct and independent matters, having no necessary connection with each other. It does not make out even a prima-facie case of a community of interest; but is designed to enforce distinct rights, unconnected, and having no relation to each other.

Tried before the Hon. H. W. Watson. This was an application by J. M. Barnes, (under chapter 3. title 6, part 2, of the Revised Code,) for authority to erect a dam across Hall’s creek in said county, for the purpose of establishing a public grist-mill; which application was contested by Henry Frost and others.

Heard before the Hon. A. W. Hillard. The bill in this case was filed by John H. Prince and Charity P. Knott, claiming as heirs-at-law of Edmund Prince, and legatees under his will, against Mrs. Lavinia L. Prince, the widow, and Charles M. Poster, as the administrator with the will annexed of said Edmund Prince; and sought to remove the settlement of said decedent’s estate from the probate court, in which it was pending, into the chancery court.

Tried before Hon. J. McCaleb Wiley. This action was brought by Nathan A. Lewis and Mrs. M. R. Webster, against Matthew Hall, to recover a certain .house and lot, known as the “drug-store,” situated in the town of Midway in said county; and was commenced in September, 1867. The plaintiffs claimed as the heirs-at-law (being the brother and sister) of Mrs. Mariana E..

<p>[SUMMARY MOTION AGAINST SHERIFF AND SOME OF HIS SECURITIES FOE FAILURE OF SHERIFF TO PAY OYER MONEY OBTAINED FOE SALE OF PERISHABLE PROPERTY.]</p> <p>1. Motion; what notice of sufficient in proceedings -under § 2958 of Revised Code. Judgment; what will support appeal. — A motion entered on the motion docket in term time is sufficient notice of the motion to all officers of court and their sureties ; and when the parties to such a motion appear and demur to the notice of motion, and such demurrer is sustained, and the motion is dismissed, the judgment thus rendered . is final, and an appeal may be taken therefrom to this court. — Revised Code, § 3027.</p> <p>2. Revised Code, § 2957 ; motion under may he made against sheriff and any one of sureties —A motion against the sheriff and his sureties, under section 2958 of the Revised Code, for money received by him for sale of perishable property sold under section 2957 of the Revised Code, may oe properly made against the sheriff and his sureties, “ or either of them.” It is not required to be made against the sheriff and all his sureties.</p>

, Heard before the Hon. B. B. Me Craw. The bill in this case was filed on the 30th August, 1867, by Evan Presley and Champion Marable, against Gideon Black and Louan Black, his wife; and sought, principally, to subject a certain tract of land to the payment of the notes given -for the purchase. Gideon Black became a bankrupt while the suit was pending, and Luke Davenport was made a defendant as his assignee.

Heard before the Hon. J. A. Abrahams. This was a petition by Jesse A. Gibbs, filed in the pro-hate court on the 10th January, 1870, asking that court to set aside a sale of certain lands in the town of Gainesville, which had been made, under an order of that court, by E. P. Snedicor, as the administrator of the estate of James C. Inman, deceased, and purchased at that sale by the said Jesse A. Gibbs.

<p>[APPEAL PROM PROBATE DEOREE IN CONTEST BETWEEN CLAIMANTS OE DEBT AGAINST INSOLVENT ESTATE.]</p> <p>1. Insolvent estate; claim filed by creditor afterwards becoming bankrupt; respective rights of transferee and assignee in bankruptcy. —When a claim against an insolvent estate is duly filed and verified, by a creditor who afterwards becomes a bankrupt, but is transferred by him, by deed of assignment, before the proceedings in bankruptcy are instituted, the decree allowing the claim should be in favor of the assignee in bankruptcy, and not in favor of the transferee or trustee under the deed.</p> <p>2. When appeal lies. — Where an issue was made up before the probate court, between the assignee in bankruptcy and the assignee by contract, of a creditor Who had duly filed and verified a claim against an insolvent estate, touching their respective rights to the claim, and is decided by the court in favor of the latter, an appeal by the assignee in bankruptcy, against the administrator, without notice to the assignee by contract, will be dismissed.</p>

Heard before the Hon. J. B. Appling. In the matter of the final settlement of the accounts and vouchers of James W. Balkum, as guardian of Prances J. Howerton (now Starling), an infant. Several items in the guardian’s account were contested by the ward, and exceptions were reserved by her to the rulings of the court in reference to those contested items; and the rulings of the court on these several matters are now: assigned as error.

Heard before the Hon. B. B. McCbaw: The bill in this case was filed by the appellant against Howell Peebles, the county of Bullock, the probate judge, and the tax-collector of said county; and sought to annul and set aside a sale of the complainant’s “ right of way, main track, side track, and warehouses, lying in or running through said countywhich sale was made by the tax-collector of said county, on the 7th March, 1870, on account of an alleged default by the railroad…

Tried before the Hon. Bobert Dougherty. This action was brought by Harriet Jackson, against Thomas S. Sharman; and was commenced by original attachment, sued out on the 5th day of December, 1859, on the ground that the defendant was a non-resident, and was indebted to the plaintiff in the sum of two hundred and twenty-two dollars.

Tried before Hon. W, S. Mudd. This suit was commenced on the 4th day of January, 1867, and the complaint, omitting caption,. &c., was as follows: . “ 1st. The plaintiffs claim of the defendant two hundred and fifty dollars, as the assignees of a bond executed on the first day of January, 1859, by one James Jackson, payable to S. A. M. Wood one day after date, for two hundred and five dollars and eighteen cents, and by said S. A. M. Wood 'assigned, on the 11th day of…

Heard before the Hon. H. C. Russell. The facts of this case are thus stated in the opinion of the court, as delivered by Mr. Justice Peters. “ The facts upon which this cause… Held: as was rightly done in Stridelen v. Hodge et al., supra. This was the only point really decided in Strickland v. Hodge. The consequence of this must be that the sale of the lands was ordered by the judge without any petition asking for a sale of the lands on the ground on which proof was taken.

Tried before Hon. John D. Cunningham. This was an action of trover brought by appellee against' appellants, to recover damages for tbe conversion of twenty-three bales of cotton, on tbe 1st of December, 1868. Tbe suit was commenced on tbe 8th of September, 1860, and at tbe October term, 1870, there was a jury trial and verdict in favor of tbe plaintiff.

Tried before Hon. John Elliott. The action in this case was commenced on the 19th of January, 1870; the complaint being as follows : “Ames Plow Company vs. Celestjne Eslava, Late partner in firm of Elder & Eslava. Circuit Court, Spring Term, 1870.

<p>[ACTION ON POLICY 07? INSUEANCE AGAINST LOSS BY PIKE, J</p> <p>1. Construction of application for policy, as to propw'ty included. — A written application for insurance, in which the property is described as “a frame steam saw-mill, covered with sheet iron, situated,’’ &c., “boiler, engine, machinery, and belting contained therein,” includes a planing machine'-in the building on the same floor with the machinery proper of the mill, about twenty-five feet distant, but attached to it by the ' belting, and plainly visible.</p> <p>2. Same ; charge to jury as to. — In an action on an insurance policy, to recover damages for a loss by fire, a charge which instructs the jury, that, if the defendant’s agent wrote the application for the insurance after an inspection of all the machinery in the building, and wrote it in such form as to include a planing machine with other machinery insured to which it was attached, and that such was the understanding of the agent and the plaintiff, then the defendant was liable for the insurance of the planing machine as well as the rest of the machinery, does not necessarily leave to the jury the construction of the writing, when there is conflicting oral evidence respecting the inclusion of the planing machine.</p>

Tried before the Hon. Luther R. Smith. This action was brought by “ the governor of the State of Alabama,” against Robert Jemison, H. A. Tayloe, Gotlieb Breitling, Nathan Bradley, James Manning, and William H. Roberts; and was commenced on the 6th September, 1860. Breitling, Manning and Roberts died pending the suit, and the action was prosecuted to judgment against Jemison and Tayloe, who alone defended it.

Circuit Court of DeKalb. Tried before Hon. W. J. Haralson. This was an action commenced on the 6th of December 1869, by appellee against the county of DeKalb, under the provisions of section 6 of “an act to suppress murder, lynching, and assaults and batteries,” approved December 28, 1868, to recover $1,000 damages for the beating and wounding of the plaintiff, on the 22d of May, 1869, by one or more persons, unknown and in disguise, to force plaintiff to consent to leave…

.Appeal from the Circuit Court of Greene. Tried before the Hon. Luther R. Smith. This was an action of debt by the payee against the makers of a promissory note, for $200, dated 28th of January, 1860, and payable January 1st, 1861. The complaint pursues the form laid down in the Revised Code in such a case.

Heard before the Hon. B. B. McCraw. The bill in tbis case was filed by the. appellants on the 14th March, 1868, against W. T. Ewing, Edith Shehan, (who was the widow of John Shehan, deceased,) Thomas Hollingsworth, and George S. Walden; and. sought the redemption of certain lands, which had been mortgaged by said Hollingsworth, at different dates, — first, to D. C. Turrentine, to secure the payment of a debt due to said John Sliekan; and afterwards to said Walden, as…

Heard before the Hon. A. W. Dillard. This was a bill in equity exhibited by Joseph T. Dunlap, in his own right, against the heirs-at-law of Thomas Boroughs, deceased, and sought to subject the estate of said Boroughs, “ which was in the custody and control” of defendants, his children and heirs-at-law, to the payment of a note given by said Thomas Boroughs to said Dunlap, as administrator of Bryan Boroughs, in payment of property purchased by said Thomas at a sale of the…

Tried before Hon. H. W. Watson. The facts are suf6.cien.tlj stated in the opinion. It seems clear that the court erred in allowing the administrator to amend his return so as to show that the land sold for a price different from what it actually did sell for, and in allowing the purchaser to come into conxt and raise his bid to the price for which the land onght to haYe sold, and this more than two years after the sale.

Tried before Hon. J. McCaleb Wiley. This was an action brought by appellants, as executors of the last will' and testament of Samuel Hickson, deceased, against the appellees to recover amount due on promissory notes given by them for the purchase-money of lands of appellants’ testator, sold under the order of the probate court, on the ground that they “ could not be fairly and equitably divided among the heirs without a sale,” The parties went to trial on the plea of the…

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

Heard before Hou. Wi. Skinner. Tbe facts are sufficiently stated in tbe opinion. Held: that where the relation of attorney and client, guardian and ward, principal and agent, exists, the duty devolves upon the party in whom the trust is reposed, of showing that the contract (between those sustaining these relations to each other) is in every respect just, fair, and equitable;” and that the same principle “ applies to…

<p>[APPEAL EEOM deceee in chancees: on settlement op tbtjst estate.]</p> <p>1. Trustee; when liable as for devastavit. —Where a trustee applied the trust funds to the use of an estate of which he was administrator, and after-wards bought cotton of that estate, a portion of which he designed for the trust, but never set apart, and then sold the cotton for Confederate bonds, which he also sold, and made a partial settlement without any reference to these transactions, — Meld, that on his final settlement he was properly charged with the amount of the trust funds appropriated, with interest, in lawful money.</p>

Appeal Rom CR’cuit Court of Mobile. Tried before Hon. John Elliott. The cause of action was a promissory note, dated May 18, 1866, payable to the appellant, at the FRst National Bank of Mobile, and' due two years after its date. The complaint was substantially in the form prescribed in an action by an indorsee against an indorser.

Tried before Hon. W. J. Haralson. Tire facts are sufficiently stated in the opinion. The instrument sued on was a promissory note, and not a bond. — Moore’s Aclm’r v. Lesear and Wife, 18 Ala. 606; Garter & Garter v. Penn, 4 Ala. 140.

Tried before Hon. John D. Cunningham. The appellees sued to recover two mules which were in the possession of the appellant. The plaintiffs were the tenants of the defendant during the year 1869, and were indebted to him $500 for the purchase of the mules, and about 'the same amount for advances made to procure supplies for the year. The purchase-money for the mules was secured by a mortgage on them, and also on the crop to be raised by the plaintiffs in that year.

Heard before Hon. Adam C. Eelder. This was a bill in equity, filed by the appellant, as heir-at-law and distributee of the estate of Mary A. Rives, de ceased, against the sureties of her administrator, and against one Flinn, administrator of Bozeman, who had administered upon said Rives’ estate, praying that Bozeman’s administration be finally settled in the chancery court, and that on such settlement decree be rendered in favor of complainant for his proper distributive…

Tried before Hon, Milton J. Saeeold: This was an action by Waller, as guardian of Sarah V., Abram C., and Virginia Vickers, minors, against Wescott, upon a judgment recovered by Ann E. Allsover against appellant, Wescott, at the fall term, 1861, of the circuit court of Montgomery, for the sum of $760 32, which judgment had been transferred to and was the property of Waller, as guardian, &c. The parties went to trial upon “'the plea of the general issue, with leave to give in…

Tried before Hon. C. F. Moulton. The appellant was .convicted of living in adultery, &c., and fined one hundred dollars. The judgment entry, so far as relates to the oath administered the jury, was as follows: “November 29th, 1871.

Tried before Hon. John Appleby. Tbe facts are sufficiently stated in tbe opinion. Tbe appellant relies on section 2221 of tbe Revised Code, and Costly v. Tarver, 38 Ala. 107; Pettit v. Pettit, 32 Ala. 288; Johnson v. Collins, 12 Ala. 322; Broome v. Monde, 10 Aa. 607; Bhem v. Tull, 13 Iredell, 57; Budcmaster v. Hairob, 7 Yesey, 342.

Tried before Hon. John Elliott, This is an appeal from a judgment rendered by the circuit court on a ease brought in that court, on appeal of the appellee, to reverse a judgment by default recovered against Southerland by the harbormaster and port wardens of Mobile before a justice of the peace. There was no complaint filed in the circuit court, but the appellee pleaded as follows: “ 1. General issue in short by consent. “ 2.

Heard before the Hon. J. A. Abraham. ■ In the matter of the estate of H. F. Eaton, deceased, on the petition of Green B. Mobley, the administrator, asking the court to vacate and set aside, as null and void, a sale of certain lands belonging to said decedent, and the order of the court under which said sale was made.

Tried before Hon. T. L. Appleby. In tbe matter of tbe final settlement of tbe accounts and vouchers of Abram Martin, as administrator witb tbe will annexed of Alfred Welborn, deceased. Tbe testator died in Meriwether county, Georgia, tbe place of bis residence, in 1857, and bis will was duly probated there.

Tried before Hon. E. M. Neils. The appellant was tried Upon the following indictment i “ The State of Alabama,) Eufaula City Court, June Term, Barbour County. f 1871.

Tried before Hon. P. O. Harper. The appellant, Isaac Smith, (colored), was convicted of rape upon tbe person of his daughter, Judy Smith, and sentenced to the penitentiary for life.

Appear from the Chancery Court of Montgomery. Heard before the Hon. N. W. Cooke. This was a bill in equity, filed by the executors of W. B. S. Gilmer, deceased, to obtain the aid of the court in construing the will of them testator, so as to enable them properly and safely to execute their trust.

Heard before Hon. A. W. Dillard. This was a bill in equity, exhibited on the 21st of June, ■1869, in behalf of Maria Childress, a minor, by next friend, to enforce the payment of a pecuniary legacy, &c. bequeathed her by the last will and testament of Catherine Harrison, deceased.

Tried before Hon. James S. Clark. Appellant; Martin, was indicted in the circuit court of Franklin for the murder of John W. Norman. The venue was changed to Lauderdale county, where appellant was tried, found guilty of manslaughter in the first degree, and sentenced to five years imprisonment in the penitentiary.

Tried before Hon. P. O. Harper. Appellant, Kelsoe, James Myers and Randall May were jointly indicted for the murder of William C. Otts. The, venue as-to Myers having been changed to Conecuh county, Kelsoe and May were tried together. May was acquitted, and appellant, Kelsoe, found guilty of murder in the first clegree, and sentenced to the penitentiary for life.

Tried, before Hon. Littleberry Strange. Appellant was indicted and tried for the murder of Jesse Dumas, found guilty of murder in the second degree, and sentenced to the penitentiary for ten years. On the trial, it was proved that the killing took place in the public highway, in front of defendant’s gate, in the month of December, 1870. It seems that defendant had attached some property belonging to deceased’s sister, a short time before the killing.

<p>[petition poe peohibition, &c.]</p> <p>1. Revised Code,’§§ 193-199 ; to what eases apply. — Sections 193-199 of the Revised Code, to compel the delivery of the books, papers, &c., of an office, were not intended to provide a mode for trying the right to the office. They apply only to cases where the title of the applicant to the vacated office is free from doubt, and his predecessor, or some other person, without reasonable claim thereto, willfully, contumaciously, or negligently, withholds the property of such office.</p> <p>2. Prohibition; when will not be granted. — When an appeal to the circuit court has been taken from the judgment of the probate court in favor of the contestant in a case of contested election for sheriff, and the suceessful party is proceeding under sections 103-199 of the Revised Code to recover from the incumbent the b'ooks, papers, &c,, of the office, this court will not issue a prohibition against an injunction from the chancery court restraining the further prosecution of the summary remedy, until decision upon the appeal.</p> <p>This was a petition in this court by Scott for a prohibition, &c. The facts material to an understanding of the motion will be found in the opinion.</p> <p>[No briefs reached Reporter.]</p>

Heard beforé Hon. A. W. Dillard. All the facts necessary to a proper understanding of the case will be found in the opinion. 1. It is sought to sustain the chancellor’s decree in this case by the authority of the case of Shepherd v. Sha¡faer,4S Ala. But that case has no application; here, the trade is alleged to have been with the wife, and for her, and the money is alleged to have been paid (in effect) by her.

Tried, before Hon. Luther E. Smith. This was an action by the payee against the maker, founded on a promissory note, dated December 26, 1859, and due January 1, 1862, for ten thousand four hundred and forty dollars. Defendant pleaded four pleas — 1st, payment, upon which issue was taken.

Tried before Hon. J. McCaleb Wilet. This was an action, in tbe nature of ejectment under tbe Code, brought by LucretiaD. Cbancey against Win. Hines, to recover certain lands mentioned in tbe complaint. Defendant pleaded not guilty, and went to trial on that plea. Tbe jury found a verdict in favor of tbe plaintiff, and judgment was rendered accordingly.

Tried before the Hon. Luther R. Smith. • The indictment in this case was framed under section 3580 of the Revised Code, for resisting officer in execution of process.

Tried before Hon. Charles Pelham. . Appellant, Thedford, sued the appellee, McClintock, upon a promissory note made on 26'th day of November, 1865. Defendant, among other pleas, pleaded the following: “3d. That the plaintiff’s cause of action is founded on the sale of a horse by plaintiff to defendant for the purpose of using said horse in the Confederate service, of the late Confederate States, and was actually used for said purpose in said service,” &c. “4th.

<p>Appeal from tbe Chancery Court of Tallapoosa.</p> <p>Heard before the Hon. Jas. B. Clark.</p> <p>Tbe facts are sufficiently stated in tbe opinion.</p>

Arrear from the Circuit Court of Butler. Tried before Hon. P. O. Harper. The appellant, Rachel Williams, was indicted for the murder of Jack Jones, tried, found guilty of murder in the first degree and sentenced to imprisonment in the penitentiary for life. The record is voluminous, setting out at length the testimony of some twenty-five witnesses, besides a lengthy written charge of the court.

Tried, before Hon. John D. Cunningham. This action was brought on a judgment rendered in the circuit court of Montgomery county, at the June term, 1867, by default, in favor of appellee, and against appellant’s intestate, James H. Ware. It was commenced on the 4th day of March, 1869. On the 12th day of July, 1869, the plea of the general issue was filed, and on the 17th day of July, 1869, the defendant filed two other pleas, viz.: 2. Nul tiel record; 3. Nul tiel corporation.

This was a petition of William M. Hall for a rule nisi to be directed to the presiding judge of the circuit court of Etowah, commanding said court to strike from the docket the case of the State of Alabama v. William M. Hall, on an indictment for murder, on the ground that the case had been discontinued. The facts material to an understanding of the case will be found in the opinion of the court.

Tried before Hon. George H. Craig. Appellant was tried and convicted for an assault upon Andrew J. Baxley, witlr intent to murder, &c., and sentenced to tb e penitentiary for ten years. On bis appeal, this court reversed tbe judgment and sentence, and remanded tbe cause for a new trial, at tbe January term, 1871.

Tried before Hon. John D. Cunningham. The appellant, Záck Stephens, was indicted for murder át the February term, 1871, of the city court of Montgomery, tried at the July term following, and found… Held: to-wit, on the 18th day of December, 1871, a bill of exceptions was signed by the presiding judge under a written agreement signed by the prosecuting attorney, -which agreement is set out in full in the

Montgomery. Tried before Hon. J. Q. Smith. Section 55 of the Bevised Code provides that “ the secretary of the senate is allowed eight dollars a day.” Section 56 provides that “ the compensation due under the preceding section must be certified by the president to the comptroller, [now auditor,] who issues his warrant therefor.” During the entire session of the general assembly in the years 1870-71, Blue was secretary of the senate.

Appear from the City Court of Montgomery. Tried before Hon. John D. Cunningham.

Tried before Hon. J'ohn D. Cunningham. On the 10th day of December, 1866, appellant sold Thos. R. Stacey a plantation in Montgomery county. Stacey, with one Y. R. Porter, in payment of said plantation, executed three written instruments, of like tenor with the one below, with the exceptipn of the dates, and secured these obligations by a mortgage on the land, which Arrington had conveyed to him in fee simple.

Tried before Hon. Joshua P. Coman. Appellant, as administrator of the estate of John H. Jones, deceased, moved the probate court, on the 11th day of May, 1871, to amend its record nunc pro time, so as to> show that said estate was declared insolvent on the 23d day of March, 1868, instead of the 25th day of the same month and .year, as appeared by the record.

Tried before Hon. J. P. Coman. The appellees, as creditors of the estate of J. Haywood Jones, applied by petition to the probate court, at a subsequent term, to set aside and annul an order of. said court, appointing a day to hear and determine the report of insolvency of the estate made by the administrator, W. P. Tanner, and also the decree of insolvency rendered on said report.

C, ClaytoN, Esq., Begister in Chancery, sitting in place of the Probate Judge. The register’s jurisdiction, when the probate judge is disqualified, extends only to an executorship, an administratorship, or a guardianship. — Bev. Code, § 2302. This is not one of the cases in which the register can act as probate judge. If there is-a casus ornisus, it is for the legislature, not the courts, to remedy it.

Appeal Rom the Circuit Court of Henry. Tried before Hon. J. McCaleb Wiley. Appellee commenced suit by attachment on the 18th' day of September, 1869, to recover Rom his tenant the amount due for rent, which it is shown in the affidavit for attachment was payable on the 1st day of November, 1869. On the 21st day of October, 1869, a proper complaint having been filed before that time, judgment by default was rendered against defendant, the tenant of appellee.

Appellees, on the ground that this appeal was prematurely taken, moved to dismiss it. The appeal was taken from a decree of the chancery court of Montgomery, dismissing a regular cross-bill on demurrer for want of equity before the final determination of the original bill. Appellants contested the motion, and also petitioned for a mandamus to compel the restoration and reinstatement of the cross-bill to the docket. The points decided are sufficiently stated in the opinion.