Volume 48 — Alabama Reports

Tried before Hon. P. Q. Harper. This was an action on the case containing two counts, brought by appellee against appellant, a common carrier of passengers, to recover damages for injuries received while traveling on one of its trains.

Tried before Hon. Littleberry Strange. This was an action commenced by E. D. McKinstry and appellant Darden, merchants and co-partners, under the firm name and style of McKinstry & Darden, against the appellee. McKinstry having died before trial, the suit proceeded in the name of Darden as surviving partner.

Heard before Hon. B. B. McCraw. This was a bill in equity, filed by appellee against Ed** monds, Daniel and Foster, to enforce a vendor’s… Held: however, that where a note given for the purchase-money of land was endorsed by the vendor, the assignee did not lose his equitable lien, because he neglected to sue the maker to fix the liability of the endorser; but this decision was upon the ground that the endorser, who was the vendor, by a voluntary payment might again become…

Tried before Hon. A. W. Jones. The facts are sufficiently stated in the opinion. Becording the deed could not possibly aid “rebellion,” or harm the United States. It falls within those acts which all civilized nations uphold, even when done by conquered enemies, in the interest of peace and good order. The necessity ought to be strong which would make the court organize anarchy by deciding that no man in Alabama, during the war, had authority to record a deed.

Appeal Rom chancery court of Lowndes. Heard before Hon. Adam C. Felder. The bill was filed by the appellees to foreclose a mortgage of lands. It charged that on default of payment of the debts secured, the mortgagee was to take possession of the property conveyed, “except alone that which the law exempted as a homestead, and to sell the same,” &o. The mortgage was attached to the bill as an exhibit, and made a part of it.

Tried before Hon. John Elliott. This was an action brought by the appellees against the appellant, to recover the sum of $4,462, alleged to be due from May 1st, 1865, to May 1st, 1866, for rent of a building in Mobile, which appellees, on the 19th of September, 1864, leased to appellant, for use as a court-house fSr a term of three years, commencing November 1st, 1864.

Tried before Hon. W. L. Whitlock. The appellant was convicted of rape. He was in actual confinement, but no copy of the indictment or venire were served upon him as required by law, one entire day before the day set for his trial. Before sentence, he moved in arrest of judgment, and his motion, as well, as the proof offered to support it, were made part of the record in the entry overruling the motion.

Tried before Hon, J. P, Gomans. The appellant petitioned the probate court to allot hex' and her minor children five hundred dollars worth of certain described lands which her husband died seized and possessed of, his estate being insolvent.

, Tried before Hon. M. J. Sappold. Appellant brought this action against appellees to recover the amount of a promissory note made by them. They pleaded, “in short by consent,” that the consideration of the note sued on was Confederate States treasurybotes, commonly called Confederate money; and further, “ that the consideration of the contract sued on is illegal and void, and against public policy.”- .

Heard before Hon. B. B. MoOraw. The facts are sufficiently stated in the opinion. 1. The demurrer to bilí for want of equity should have been sustained. 1st. because fraud alone is not sufficient to confer jurisdiction on a court of chancery. No matter how gross the fraud may be* if the party can have full, complete and adequate redress at law, he can not go into a court of equity.”- — Knotts v. Tarver, 8 Ala. 743.

<p>Appeal from Chancery Court of Talladega.</p> <p>Heard before Hon. B. B. McCraw.</p> <p>The facts upon which the case turns are sufficiently stated in the opinion.</p>

Tried before Hou. James S. Clark. The facts upon which the decision is based are sufr ficiently set forth in the opinion.

Heard before Hon. Adam C. Eelder. Phenix, a citizen of the chancery district composed of the county of Montgomery, filed his bill in the chancery court of Montgomery, praying the foreclosure of a mortgage executed in the year 1858 by one John A. Merritt, a a citizen of Butler county, to complainant on certain lands lying in the county of Pike.

Tried before Hon. M. J. Sapeold. This case turns upon the pleadings. The Reporter has therefore thought it best to set out the first count upon which the decision turned.

<p>[BILL IN EQUITY EOB ACCOUNT, &C.]</p> <p>1. Hank, violation of charter by circulating notes not payable on demand; what contraot does not vitiate. — The violation of its charter by an incorporated back, in circulating as currency notes or bills not payable on demand, does not vitiate a contract made by the bank with other parties involving the circulation of such notes or bills.</p> <p>2. Contracts involving circulation of Confederate currency; when not void. Although a loan of Confederate currency is not a sufficient consideration for a promise to pay money, contracts for the sale and purchase of property, involving its use and circulation, are not void.</p> <p>3. Contraot of sale; what held to be a mortgage. — A contract purporting to be a sale, by the terms of whioh the vendee is to sell the property, and out of the proceeds t>f the sale pay an antecedent debt of the vendor, with interest and expenses, any excess to be returned to the vendor, and any deficiency to be made good by him, is in effect a mortgage.</p> <p>4. Hill for discovery ; when not without equity. — A bill in chancery for a discovery and account of property disposed of under such a contract, is not without equity.</p> <p>5. Same; what jurisdiction not defeated by. — The change of the law of evidence which allows the parties to a suit to be examined as witnesses, does not take away the jurisdiction of chancery to compel a discovery.</p> <p>Note by Reporter. — An application for a rehearing was made in this case at the June term, 1871. It was denied at the present term. The application did not come into the Reporter’s hands, and he is therefore unable to state the nature of it. Mr. Justice Saeeold delivered the following response to the application:</p> <p>SAFFOLD, J. — We do not see the necessity for any further consideration of the matters involved in this case at this time. The attorneys on both sides are sagacious and discriminating, and we prefer to consider the issues which may arise on-another trial after they have been ar--gued.</p> <p>The application is denied.</p>

Heard before Hon. N. W. Cocke. The record in this case was very large, and imperfectly bound; parts of it became separated from tbe portion of the record that came into tbe Reporter’s hands. The inissing part of the transcript is mainly that part which contains the depositions. It has been impossible, therefore, to give any fuller report of the facts of the case than appear in the opinion.

<p>[trover eor conversion oe oboes.]</p> <p>1. Future crops; when may be subject of mortgage. — The crops to be grown on lands leased for three years is a proper subject of mortgage by the lessee to the lessor to secure the rent for the term.</p> <p>2. Future crops; moAyage on, when notice though not recorded. — Where lessees shared their lease with others who were to receive half of the crop to be grown on the premises, and who knew that their copartners were the tenants of another, the latter are chargeable with notice of a mortgage on the crop given by the former to the lessor to secure the rent, although it was not recorded at the date of their contract.</p> <p>3. Trover by mortgagee against mortgagor; when will lie. — Trover will lie in favor of the mortgagee against the mortgagor and his-consignee, notwithstanding the mortgage stipulated that on or before the law day the goods were to be shipped by the mortgagor, who retained possession, to a factor of his own selection, who was to sell them for the benefit of the mortgagee, if they appropriate them to their own use, by sale or otherwise, before or after the law day.</p>

Tried before Hon. C. E. Moulton. The facts are sufficiently stated in the opinion. L It is well settled, that courts will, if necessary, look behind a statute to the legislative records to ascertain whether it has a legal existence.— Jones v. Hutchinson, 43 Ala. 721.

Tried before Hon. Geo. H. Craig. The opinion states the case.

Heard before Hon. Adam C. Felder. This was a bill in equity, filed by the appellees, J, Clifton Moses and Eugene Beebe, against the mayor, aldermen and common council of Mobile, Martin Horst,- mayor, E. M. Quinn, chief of police, and McPhillips and Kassens, assistant chiefs of police, praying that the defendants be perpetually enjoined and restrained from interfering with or disturbing complainants in the enjoyment of the franchise and privileges which enured to them, or in…

This was an application for a mandamus to be directed, to tbe presiding judge of the circuit court of Butler, commanding him to reinstate upon and restore to the docket a case which the court had Stricken from the docket, upon the failure of the petitioner to pay costs within the time mentioned in an order continuing the cause,

Tried before Hon. Littleberrt Strange. The opinion states the case. The juror West was pronounced competent by the court and accepted by the State' and defendant. Whatever rights he may have had to claim exemption from jury duty, he waived them by not making his excuse before he was accepted. The decision of the court would therefore have been right, even if the juror West had been exempt from jury duty under the charter of the fire company.

Tried before Hon. C. F. Moulton. The opinion states the case. The court erred in refusing the instruction asked for by the accused on the trial of the plea of misnomer. It is á man’s right to be tried by his real or right name. The charge should have been given, because proof was conclusive that his name was Granville Taylor, and he was never known as Henry Taylor,, except upon the one occasion upon which it is alleged the offense of perjury was committed.

Tried before Hon. C. E. Moulton. The indictment in this case, charged that the defendant “ feloniously took and carried away a dóg, the personal property of Patrick O’Brien, of the value of twenty-five dollars,” against the peace, &c. He went to trial on plea of not guilty, and was convicted. The taking by the defendant was proved, but the evidence was conflicting as to whether it was a felonious taking. The owner of the property testified that the dog was worth $25.

Tried before Hon. W. J. Harealson. The facts are set forth in the opinion. 1. The indictment alleges that J. H. Dargin is the owner of the goods; the proof is that the owner’s name is John H. Dargin. A mistaken Christian name was anciently more fatal than a mistaken surname. — Bacon’s Abgt., Title, Misnomer, 2 Haw-kin’s P. C. 317; 2 Hale’s P. C. 175-6; but “ modern decisions make no distinction.” — Lynes v. State, 5 Por. 236. 2.

<p>[INDICTMENT EOR CAED PLAYING, &0. ]</p> <p>Variance between indictment and proof. — An. indictment charging three persons jointly with playing at a game of cards, at a public place, &c., in the form given in the Eevised Code, (p. 810, form 27,) is not supported by evidence that two of the defendants played together at the game, at a public place, <jnd that the other defendant played at a game of cards at the same time and place, with persons not indicted — the two games being separate and distinct, and at different .tables, and having no connection with each other. Only those persons who participated in the same game should be joined -in one indictment.</p>

<p>Appeal from the City Court of Mobile.</p> <p>Tried before Hon. C. F. Moulton.</p> <p>The opinion states the case.</p>

<p>[APPEAL FEOM OEDEB DISMISSING SUIT BBOUGHT BX NON-EESIDENT PLAINTIFF, FOB WANT OP SECUBITy POg COSTS,]</p> <p>1. Actions commenced by non-residents; when should be dismissed. — All actions commenced by or for the use of non-residents of this State, in the courts of the State, should be dismissed on motion unless security for costs be given previous to the issuance of the summons.</p> <p>2. Same; no limit to right to move to dismiss. — There is no limitation of time confining this motion to a particular term of the court in which the suit is pending. It may be made at any time before the trial, if the right is not waived.</p>

<p>[bill in eqtjiti: to enjoin collection of tax.]</p> <p>1. Taxation; what not subject to, under revenue law of 1868. — Gold and Uni-^ ted States treasury-notes on deposit in New York and stocks of foreign corporations, owned by a citizen of this State, are not subject to taxation by the State under any provision of the revenue law of 1868.</p>

Tried before Hon. C. E. Moulton. The appellant was indicted for the murder of Mack Mitchell, went to trial on plea of not guilty, was convicted of murder in the first degree, and-sentenced to confinement in the penitentiary for life. The murder occurred at a small town in Mobile county called Whistler.

<p>This was a motion to affirm a judgment on certificate, &c.</p>

<p>[INDICTMENT EOB SOLEMNIZING BIGHTS OE MATBIMONY CONTEABY TO LAW.]</p> <p>j. Revised Code, §§ 3602 and 3603; unconstitutkmality of. — Sections 3602, 3603, of the Kevised Code, which, prohibit the inter-marriage of white persons and negroes, and forbids any person, authorized to solemnize the rites of matrimony, to do so in such cases, when applied to citizens of the United States, or of the State, are in contravention of the act of congress of April 0, 1806, known as the “civil rights bill,” and repugnant to section 1 of the 14th amendment to the Federal constitution, and to art. 1, § 2, of the State constitution..</p> <p>2. Citizenship; whcd rights confer. — The promotion to citizenship of persons before excluded, is an admission of them to all the rights and privileges of other citizens in the same manner and to the same extent.</p> <p>3. Same. — The persons who acquired citizenship under the 14th amendment, and the State constitution, can not be distinguished by legislation from the former citizens, for any of the causes which previously characterized their want of citizenship.</p> <p>4- Ovrmded case. — Mlis v. The State, 42 Ala. 525, overruled as to this point,</p>

<p>Appeal from the Criminal Court of Dallas.</p> <p>Tried before Hon. George H. Craig.</p> <p>The opinion states the facts,</p>

<p>[PETITION TO SET ASIDE SAME OS' LAND. ]</p> <p>1. Mcempt property if decedent; what, child may daim. — If' a person die, in ibis State, and leave no widow, and hut a single child, who is his sole and only heir and distributee, five hundred dollars worth of the land of the deceased is exempt from the payment of such decedent’s debts, for the child’s use.</p> <p>2. Same; rights of diild when estate is insolvent. — And when the estate is insolvent, and it becomes necessary to sell the real estate for the payment of debts, the land so exempt should he laid off and set apart for such child, in the manner required hy the statute. And if the land can not he divided, it must he sold, subject to this claim of exemption. — Revised Code, § 2061, Cl 6.</p> <p>3. Same. — And if, when the land is so offered, for sale, it fails to sell for five hundred dollars, the sale should not he-confirmed, as the child is entitled to the five hundred dollars or the land.</p> <p>Í Same; proof of insolvency of estate; what competent evidence to prove. — On an application hy petition, in favor of such chill, it is not necessary, in order to show the insolvency of the estate, that there shall be a judgment of insolvency in the probate court, but it is enough, “when the estate is</p> <p>, ascertained to he insolvent, upon evidence satisfactory to- the probate judge.” — Revised Code, § 3539, Gr. p. 671.</p> <p>5. Same. — On such an issue of insolvency, net non, the evidence of the administrator is competent, without a judgment of insolvency, and it should not he rejected.</p> <p>6. Same; petition of child should not he dismissed for irregularities, &c. — "When the petitioner is a female and a minor, her petition should not be dismissed for any irregularity or informality, which would he amendable. The court should direct the petition to he properly amended, if it was deemed insufficient. Its dismissal is to he looked upon with grave disfavor, in such a case;</p>

Tried before Hon. J. MoCaleb Wiley. The appellee, plaintiff below, as the administrator of the estate of E. M. Brundidge, deceased, in 1868, sued the appellant in a magistrate’s court, and was defeated; after-wards, on his petition, the cause was removed into the circuit court by certiorari.

<p>Appeal from Chancery Court of Barbour and Henry.</p> <p>Heard before Hon. B. B. McCraw.</p> <p>The opinion states the case.</p>

<p>Appeal from the Circuit Court of Mobile,</p> <p>Tried before Hon. John Elliott.</p> <p>The opinion states the case,</p>

Littlebekry Strange- The appellant, Garlick, sued the appellee, Dorsey, for negligently causing the death of appellant’s mule, worth three hundred dollars. The facts stated in the bill of' exceptions are as follows: The plaintiff’s mule, worth one hundred and seventy-five dollars, was standing at a “hitch-post,” on a vacant lot in the town of Salem, in Lee county, in this State, which hitch-post was away from any street or public highway in said town.

This is an application for mandamus. The petitioner, at the spring term of the circuit court of Eussell county, 1866, commenced an action of assumpsit against Benjamin Eontaine, to recover the sum of five hundred dollars, for money had and received by said Fontaine, and one William Hughes, as partners under the name and style of Fontaine & Hughes. The summons was served on the defendant, said Fontaine, and he appeared and pleaded payment.

<p>[BILI. IN EQUITY TO FORECLOSE MORTGAGE.]</p> <p>1. Married woman, owner of separate statutory estate; what power has as to collection cf debts due her. — A married woman, a citizen of this State, who is the owner of a statutory separate estate, is clothed by law with the power to collect her debts, by suit or otherwise, and to “receive,” with the concurrence of her husband, any property to which she may become entitled after her marriage. — Rev. Code, § 2525, 2375, 2372.</p> <p>2. Same. — In the exercise of this power, she acts without restraint, except that which may be imposed by her husband as her trustee. In collecting a debt or sum of money, to which she is entitled, she may take land in lieu of money. And in dividing the proceeds of a promissory note, in which her interest is one-fourth part, and the note is paid by a transfer of land, and the land is valued at more than her share, if she takes the land, she may pay the balance above her share in money or bind herself by her own and her husband’s promissory note for this balance, and secure the payment of the note thus given by mortgage on the’land thus “ received ” in lieu of her part of the note thus collected; provided the note and mortgage are executed as 'required by the law governing the “separate estate of wife.”</p> <p>3. Same; when mortgage signed by married woman and her husband may be enforced against both. — Such mortgage may be foreclosed against the wife and her husband if she fails to pay the note when due, which has been thus entered into.</p>

Tried before Hon. M. J. Sapfold. The opinion states the facts. The scire facias issued in this case is absolutely void. The proceeding was attempted to be had under section 2544 of the Revised Code; but the scire facias is entirely defective, in not showing that the defendant’s death had been suggested, and a motion made to revive. — Rev. Code, § 2544.

Tried before Hon, Jas. Q. Smith.' The action in this Gase was commenced by the appellee against the appellant, as the. executrix of Jesse P. Taylor, deceased. The original complaint was on a note for $2,421 62-100, made by her, as executrix, (fee., as aforesaid, on the 16th day of March, 1858, payable to W. B. S. Gilmer tMelye months after date, with interest from date.

<p>Appeal from the Chancery Court of Wilcox.</p> <p>Heard before Hon. Adam C. Felder,</p>

<p>[bill in equity to enforce vendor’s lien ON LAND, *0.]</p> <p>1. Contract for sale of land; to what, vendor’s lien attaches. — A contract for the; sale of lands in this State, to be paid for partly in money and partly in bales of cotton, is such a sale as secures to the vendor all the rights incident to a vendor’s lien, upon a failure to deliver the cotton at the time agreed on, and such lien may be enforced by bill in chancery.</p> <p>2. Damages; measure for breach of contract to deliver cotton. — The pecuniary liability on a contract to deliver eleven bales of cotton, weighing each five hundred pounds, is, when the contract is broken, the money value of the cotton on the day agreed upon for its delivery or payment, when no price is fixed in the contract.</p> <p>3. Same; when bears interest. — The value of the cotton on the day of payment, thus ascertained,- fixes the amount of the debt against the party bound to deliver the cotton; and this is such a debt as bears interest from the date fixed for the delivery of the cotton.</p> <p>4. Same; what rate of interest governs such contract. — Sucha contract is govenfbd, as to interest, by the rate prescribed by the Code; and an attempt 'to collect a greater rate of interest on such contract than eight per cent, per annum is usurious. — Rev, Code, §§ 1827, 1828.</p> <p>5. Principles of law enunciated in foregoing head-notes; applied to facts of the preseni case. — 0., in 1866, sold land to N. for $2,000 cash and twenty-three bales of cotton, weighing each five hundred pounds; the money was paid, N. was put into possession of the land, and the cotton was agreed to be delivered about the first of January following; but N. was only able to deliver twelve bales of the twenty-three when the cotton fell due; this left eleven bales unpaid. At the time of the payment of the twelve bales, the cotton was worth thirteen cents per pound; C. was then willing to “indulge” N. “in the payment” of said eleven bales yet “remaining unpaid;” and in order to do so, agreed with him to take a mortgage on his crop of that year, and postpone the payment of the eleven bales of cotton until some time in the year following, but on a second failure to pay the cotton N. was to account for it at thirty cents per pound. On a bill filed by C. against N. to foreclose his vendor’s lien on the land sold to N., C. is entitled to recover only the money value of the eleven bales of cotton when they fell due on the contract of sale, and interest thereon at eight per cent, per annum. Anything more than this was usurious; and if demanded, only the value of the eleven bales, or what remained due thereon at the date the same fell due on the contract of sale, without interest, could be recovered. — Rev. Code, § 1831.</p>

M. J. Saeeold. The appellant, who was indicted for the murder of Toney Tinsal, was found guilty of manslaughter in the first degree, and sentenced to eight years’ imprisonment in the penitentiary. No bill of exceptions was reserved, and the appeal is taken on the record. The defendant was arraigned on the 18th of March and the -trial set for the 21st day of March, and actually took place on the 22d day of that month.

Tried before Hon. Geo. H. Craig. The appellant was convicted of bprglary in a dwelling house and sentenced to confinement in the penitentiary for three years. On the trial, the owner of the house testified that on the Sunday on which his house was broken into he went to church, locking up his dwelling house, and leaving defendant, who was in his service, and'a nephew, seventeen years old, in the yard.

Tried before Hon. M. J. Saeeold. This was a prosecution against the appellants for living together in adultery or fornication, commenced before the criminal court of Dallas county, and resulting in their conviction. The defendants appealed to the circuit court. In the circuit court tjhere was a jury trial, on a statement signed by the solicitor, and the parties were again convicted.

Tried before Hon. Geo. H. Craig. The appellant was tried in the court below, on an indictment for grand larceny, convicted and sentenced to the penitentiary for two years. The appeal was taken on the record alone. No errors are assigned, and no counsel appeared or furnished a brief for the prisoner in this court.

Tried before Hon. Geo. H. Craig. The appellant was indicted for burglary in a dwelling house, and convicted. The indictment contained two counts; the first charging the burglary in the dwelling house of John Bobbins, and the second in that of Peyton Borge. There were but two witnesses examined, and both on the part of the State.

<p>•Appeal from the Chancery Court of Greene.</p> <p>Heard before Hon. A. W. Dillard.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>This was an application for mandamus. The facts upon which it is based are sufficiently stated in the opinion.</p>

Heard before Hon. ¥i. Skinner. The bill in this case was filed by the appellee, Lovic P. Bamsey, as the administrator of B. B. Bamsey, deceased, against the appellants, Henry Milner and William Milner, to set up and enforce a vendor’s lien on certain lands lying and being in the county of Marshall.

.Tried before Hon. J. Q. Smith. The appellant brought this action against the appellee (the Mayor and City Council of Marion) to recover amounts paid by him, under protest, to the corporate authorities of Marion for a license to carry on the business of retailing spirituous and vinous liquors within the corporate limits of the town of Marion. ■ The gravamen of the complaint was, that appellant paid for and took out, on the 3d day of January, 1870, “ a license to retail…

Tried before Hon. Charles Pelham. Horace Ware and Benjamin Wilson brought their action of unlawful detainer against John E. Warwick to recover possession of lands mentioned in the complaint. The justice of the peace before whom the suit was brought rendered judgment against the defendant, who appealed to the circuit court.

Tried before Hon. W. L. Whitlock. This was an action brought by Powell, as executor of the last will and testament of John Anderson, deceased, to recover of Oarroll the amount bid by him for certain lands of appellee’s testator, sold by appellee at public outcry.

This was an application for a mandamus to compel the circuit coiu’t of Autauga to make appropriate orders to return the case of the State of Alabama v. W. E. Dennis, and the trial thereof, on an indictment against said Dennis for an assault with intent to murder, to the city court of Montgomery.

This was a motion to establish a bill of exceptions. The motion and affidavits accompanying it show that the petitioner was convicted of betting at a game called keno, and at the same term of the court his attorney presented to the presiding judge of the court the identical bill of exceptions now sought to be established; that the bill of exceptions thus presented “ truly and correctly set forth the facts,” and was in “ every particular correct, and correctly stated the…

Tried before Hon. L. E. Smith. Tbe complaint in tbis case was as follows: “ M. H. Yerby, county sup’t of Hale county, v. L. L. Sexton, J. K. Elliott, Pinkney Jones. “Tbe plaintiff, as county superintendent of Hale county, Alabama, claims of the defendants three hundred dollars, with interest, due by promissory note made by them on tbe 25th day of October, 1859, and payable twelve months after date, to the trustees of the sixteenth section school fund in township 22, range 4,…

Appear from the Criminal Court of Dallas. Tried, before Hon. Geo. H. Craig. The appellant was indicted and convicted under § 3690 of tbe Revised Code, for decoying or persuading George Blair and Joseph Moore, apprentices of James A; Blair, to leave the service of said James A. Blair.

Tried before Hon. John Elliott. This was an action of detinue, brought by the appellees, P. & G. Lorillard, against the appellants, Sawyer & Boullet, to recover certain sample packages of tobacco mentioned in the complaint. The record does not disclose upon what pleas issue was joined. There was a verdict and judgment in favor of the plaintiffs below.

John Elliott. The appellant, in its complaint, claimed of the appellee “ one hundred dollars for one share of the capital stock of their association, by them sold and delivered to the defendant, and for which he refuses to pay.” A jury trial was waived, the decision of the case submitted to the court on an agyeed state of facts, in substance as follows: On the 11th day of March, 1871, defendant agreed to buy from the plaintiffs one share of the capital stock of the…

<p>Appeal from the Circuit Court of Marengo.</p> <p>Tried before Hon. Lxjther R. Smith.</p>

<p>[PINAL SETTLEMENT OP EXEOUTOES' ACCOUNTS.]</p> <p>1. Executor; when shcruld not be charged icith promissory note not collected by him. — An executor should not be charged with the amount of promissory notes payable to his testator, because they remain in his hands uncollected, when it is shown that the maker claimed a larger amount against the estate on a contract with the testator for work to be done, which was done, and that an attorney, whom the will requested should be consulted, on such matters, advised against-suing on the notes.</p> <p>2. Fxecutor; what cuirency was not bound to apply to his own compensation during late war. — An executor dining the late war was not obliged to appropriate Confederate currency, received from the sale of crops and other products, in satisfaction of his services to the estate. If he improperly disposed of the property, he ought to have been charged with waste.'</p> <p>3. Distributee, entitled to support out of estate while kept together; when probate court has not jurisdiction to ascertain and decree value of. — A distributee was entitled to support out of the estate, free of charge, during the time it was kept together, but did not receive it, — Eekl, that the probate court had no jurisdiction to ascertain its money value, and decree the amount to her in the distribution.</p> <p>4. Objection to voucher; what properly overruled. — This court can not say there was error in overruling an objection to an entire voucher, part only of which was proved.</p>

Tried before Hon, C. F. Moulton. The indictment in this case, which was properly endorsed and returned into court, charged that, before the finding thereof, “ Constantine Perez, being the proprietor of a tavern, inn, storehouse for retailing spirituous liquors, or house or place where spirituous liquor was at the-time retailed or given away, or at a public house, highway or some other public place, or at an outhouse where people resorted, knowingly suffered a game with cards…

<p>Appeal’ from the Circuit Court of Limestone,</p> <p>Tried before Hon. Jas. S. Clarke.</p> <p>The facts are fully stated in the opinion.</p>

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

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

<p>[BILL IN EQUITY TO BEFOBM DEED, 4C.]</p> <p>1. Deed; when will he reformed, &o.- — A father, after the death of his son leaving a widow and minor children, conveyed by deed to his administrator land which the son had occupied several years under a parol gift, in» tending to subject it to the claims of his creditors and his wife’s dower, in the same manner as if the conveyance had been made before his death, —Held, that on a proper bill by the widow, equity will reform the deed, allot the dower, and apportion to the family the statutory provision of five hundred dollars worth of the land.</p>

Tried before Hon. ~W. J. Haralson. This action was brought by the appellee Gross, against the appellant Caroline Ryan, on the 8th of March, 1868. The complaint contained two counts. The first count was a count upon an account stated between plaintiff and defendant, for an indebtedness incurred by defendant when a femme sole, under the name of Caroline Frazier, and before her marriage with her present husband.

<p>Appeal from the Chancery Court of Lauderdale.</p> <p>Heard before Hon. Wit. Skinner.</p> <p>The opinion states the case.</p>

<p>Appeal from tbe Chancery Court of Barbour and Henry.</p> <p>Heard before Hon. Adam C. Felder.</p> <p>The opinion sufficiently states the facts.</p>

<p>[EJECTMENT.]</p> <p>1. Ejectment, action of; by what law governed. — An action of ejectment commenced in 1852 is governed by the law of that action as it existed under Olay’s Digest. Such an action should be conducted as at common law, except the fictitious proceedings are abolished.</p> <p>2. Same; proceedings in, as to declaration, &c. — In such an action, the tenant in possession, who is the real defendant, on being served vith a copy of the declaration and notice, is required, under the consent rule, to confess lease, entry and ouster, and put in his plea of not guilty and insist upon his title only: after this, he can not demur to the declaration. If the declaration is insufficient, it should be set aside and amended,</p> <p>3. Ejectment; what tide plaintiff must have to entitle to recovery. — When this form of action is instituted for the recovery of a term for years, the plaintiff must have a good title as against the defendant, both when the action is commenced and when it is tried, or else he can not recover.</p> <p>4 Cause submitted without argument or brief; when errors assigned will be considered abandoned. — When a cause is submitted “by consent” without argument, and no brief is furnished the court by the appellant in support of the assignment of errors, it will be presumed that the assigment of errors is not insisted on, and this court will not feel bound to consider them.</p>

“ This is an application, made on the relation or petition of Marshall G. Candee, in which he prays for a rule nisi to be issued and directed to the Hon. John T. Cook, the judge of probate of Wilcox county, requiring him to be and appear before this court, at such time as may be designated therein, and show cause, if any he have, why a writ of mandamus should not issue to him, to compel him to approve • of the bond of petitioner as sheriff' of Wilcox county, and allow the…

Tried before Hon. P. O. Harper. The appellant, Ctesar Scott, was indicted for an assault with intent to ravish Sukey Sams. On the trial, she testified that “in September, 1871, she was attacked by the defendant, who attempted to ravish her, but he failed and did not accomplish his purpose.” The defendant objected to this “answer,” but his objection was overruled, and he excepted.

Tried before Hon. M. J. Safford. The defendant pleaded guilty of a simple assault, to an indictment charging an assault with intent to murder. The first count charged that the assault was made with a pistol; and the second, as having been made with a knife.

Section 6 of the act “ to suppress murder, lynching, and assaults and batteries,” approved December 28th, 1868, provides, in substance, that if any person be whipped, beaten, or wounded, “to force such person to leave the neighborhood, or for any cause, by two or more persons unknown, or persons in disguise, not unknown or in disguise,” &c., the person so injured may recover one thousand dollars by suit against the county in which the offense occurred, &c. Section 7 of the…

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

<p>Appeal from the Circuit Court of Limestone.</p> <p>Tried before Hon. W. J. Haralson.</p> <p>The opinion states all the facts of the case.</p>

<p>[appeal pbom oedeb gbanting mandamus.]</p> <p>1. Time when act is to he performed; when directory merely. — A statute prescribing a period of time within which public officers are to perform official acts regarding the rights of others, will, as to third persons', be held to be directory merely, and not to invalidate or prevent official acts after the expiration of the specified time, unless the nature of the act to be performed, or the spirit of the statute, force a contrary conclusion.</p> <p>2. Same. — Where a statute (under which a county issued bonds, a series of which fell due annually for a period often years,) provided that “as soon as” certain prescribed conditions were complied with, “and annually thereafter, for a period of ten years,” the court of county commissioners should levy and assess a tax sufficient to pay the series falling due each year, it was held, that the failure to assess and collect the tax within the time prescribed, did not thereafter limit or destroy the power to levy and collect the tax, but that the power existed as long as the legal obligation to pay the debt subsisted.</p> <p>3. Contracts; law as to enforcement of remedy, how can not be changed. — The law in force at the time and place of making a contract, and when it is to be performed, becomes part of the contract both as to its stipulations and the remedy provided for their enforcement. After the'contract is thus entered into, subsequent legislation can not change the remedy so as to impair the obligation of the contract as it stood at the time it was entered into.</p> <p>4. Bonds issued, by county of Zimestone under act of December 14, 1855; create valid obligations against the county, the payment of which will be enforced by mandamus. — -The bonds issued by the court of county commissioners of Limestone county, under the act entitled “An act to authorize the commissioners court of Limestone county, State of Alabama, to subscribe to the capital stock of the Tennessee and Alabama Central Railroad Company,” passed over the veto of the governor on the 14th December, 1855, create a valid debt against the county, which are not required to be presented for allowance to the commissioners court; and the commissioners court, refusing to levy and assess a tax, as authorized by law, to pay the bonds, were compelled to do so by mandamus, which was held to be the appropriate remedy to enforce the payment of the bonds.</p> <p>[Appellants’ brief did not reach the Reporter.]</p>

Trid before Hon. J. Q. Smith. This was a real action in the nature of ejectment brought by the appellee, described in the complaint as “ the President, Directors and Company of the Bank of Kentucky,” against the appellant Stribling. The writ was returnable to the fall term, 1870, of the circuit court, and at that term the case was continued by consent.

<p>Appeal from the Chancery Court of Dallas.</p> <p>Tried before Hon. Chas. Turner.</p> <p>The opinion states the facts.</p>

<p>[APPEAL EEOJI ORDER DISSOLVING INJUNCTION. ]</p> <p>Notice of motion to dissolve injunction; what insufficient. — Notice to complainants that application will be made to the chancellor in vacation to dissolve an injunction “at Lafayette, in Chambers county, Ala., or at such place as said chancellor may be required to be by law, ” is void for uncertainty.</p>

<p>[ACTION AGAINST BAIIBOAD COMPANY, BY ADMINISTBATOB OP INTESTATE TO BECOVEE DAMAGES POB KIDDING OP INTESTATE.]</p> <p>1. Complaint; what sufficient averment of negligence. — In an action of damages against a railroad, company, by an administrator, for injuries causing the death of his intestate, an averment in the complaint that the intestate received the injuries from which he died by a collision of the defendant’s trains, through the carelessness of its engineer in charge of one of them, is not subject to demurrer for an insufficient statement of facts.</p> <p>2. Action to recover damages for killing intestate; what need, not be alleged. — It is not necessary to aver that the intestate left a widow, child, or next of kin.</p> <p>3. Common employer; when not liable for injuries to servant occasioned by neglect of fellow-sei'vant. — A common employer is not liable to his servant for injuries done to him through the negligence of his fellow-servant in the pursuit of their common business, without fault on his part.</p> <p>4. Same. — He is liable, when the offending servant is incompetent in skill or prudence, within his knowledge, or his reasonable means of ascertainment.</p> <p>5. Care required in selection of employes, &e. — Ordinary care and diligence in the selection and supervision of servants or employes is not sufficient. There must be due or reasonable care and diligence proportionable to the hazard of the business.</p> <p>6. Fitness of servant; what plea, as to, demurrable. — The defendant’s supposition of the fitness of the engineer, as a reason for retaining him, is,, as a plea to the action, subject to demurrer.</p>

<p>[ifEAX, ACTION IN NATURE OE EJECTMENT.]</p> <p>1. Revised Code, § 2221; what allegation equivalent to the word “equitably” used therein. — An allegation in a petition to the probate court for an order to sell the land of a decedent under section 2221 of Revised Code, that the same can not be “fairly” divided, &c., is equivalent to saying that it can not be “equitably” done.</p> <p>2. Deoree; for what reason, not void. — A decree for the sale of the land of a decedent, and of confirmation of such sale, are not void because rendered by a probate court of the late insurrectionary State government.</p> <p>3. Mjedmenl by heir; what sufficient defense to. — To an action of ejectment brought by the heirs or devisees of a decedent to recover real estate Of which he died seized and possessed, it is a sufficient defense that the lands were sold under a valid decree of the probate court, the sale confirmed, the purchase-money paid, and g, deed executed to the purchaser.</p>

This was a motion to dismiss the appeal in this case. The motion was made at the January term, 1872, the transcript in the cause having been filed on the 24th day of January. The opinion seems to have been delivered at the January term, 1872, although it is marked June term, 1872.

<p>[APPEAL EBOM DEOBEE OE PEOBATE COÜBT ON EINAL SETTLEMENT OE ACCOUNTS OE ADMINISTBATOS DE BONIS NON, &C.]</p> <p>1. Administrator; what settlement by, final and not liable to collateral impeachment. — When an executor or administrator resigns, and makes the settlement required by section 2232 of Revised Code, such settlement is to he regarded as the final settlement of the out-going executor or administrator, and it can not be collaterally impeached, in the subsequent administration of the estate.</p> <p>2. Same; duty of probate court in such settlement.- — On such settlement, it is the duty of the court to examine and audit the account of the out-going executor or administrator, and to require Mm to produce satisfactory evidence of the correctness of each item on the credit side of the account, whether exceptions be or be not filed to the same.</p> <p>3. Same; who are proper parties on such settlement. — The parties to such a settlement are the heirs-at-law of the deceased, and the legatees or distributees, as the ease may be, the administrator de bonis non of the testator or intestate, and, if the estate has been declared insolvent, the creditors are also proper parties.</p> <p>4. Administrator de bonis non; when not chargeable with items improperly allowed, &c., on final settlement of administrate»• in chief i — Where the administrator de bonis non appears on such settlement, and examines the accounts, and, without filing exceptions, consents that the same may be allowed, this is not sufficient, on any subsequent settlement, to charge him with negligence, unless it clearly appears that said account, or items in it, were improper and should have been disallowed, and that he omitted to file exceptions from motives of bad faith.</p> <p>5. Executor; when entitled to compensation outside of commissions on receipts and disbursements. — Where the will requires the widow, as executrix, to keep the estate 'together, and “to work it,” as though the testator were alive, she is entitled to reasonable compensation for doing so, independent of commissions for receipts and disbursements. Although such compensation may not, strictly speaking, be a preferred claim, yet it is to be paid before the ordinary debts of the testator, in case of insolvency.</p> <p>6. Exceptions to accounts of administrator of insolvent estate; when must be filed, éc. — Where the administrator of an insolvent estate files his accounts for a distribution among the creditors, no exceptions can then be made that might have been made at any previous settlement, or when the estate was declared insolvent,</p> <p>7. Revised Code, section 2706 of; to what cases does not apply. — Where an executrix was authorized by the will of the testator “to work the place” as if the testator were alive, and invested with a large discretion as to the management and conduct of the estate, she will not be liable, notwithstanding section 2706 of the Revised Code, to account for rent of lands for which she took no other security than the note of the lessees, who were then reputed solvent, but afterwards became insolvent, whereby she failed to collect the rent.</p>

Tried before Hon. Littleberry Strange. The appellant, Jake Addison, was indicted for the murder of Wesley Joseph, found guilty of murder in the second degree, and sentenced to the penitentiary for ten years. The^ prisoner and deceased resided on the same plantation in Russell county, the cabin in which the prisoner and his wife lived being not far from the house in which deceased lived. A public road ran in front of both cabins, and not far from them.

Tried before Hon. Luther E. Smith. The appellees brought an action against the appellants, Hiram J. May and Martha, his wife, to recover the sum of one hundred dollars, alleged to be due by them for work and labor, &c., medical services, and drugs and medicines furnished by the appellees to the appellants during the years 1868 and 1869.

Tried before Hon. Littleberry Strange. This was an action brought by the appellant against the appellees, Baker, Bugg & Beasley, to recover the sum alleged to be due on a promissory note, which recited that it was given for the hire of three negro slaves. Issue was joined on the pleas of the general issue, and failure of consideration. On the trial, appellant offered to read the note to the jury as evidence in the cause.

. Tried before Hon. John D. Cunningham, This was an action of assumpsit by MeCutchen against Bogan to recover the amount of an account against him for boarding his hack-drivers from June 1st, 1870, to April, 1871.

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

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

<p>Appeal from Circuit Court of Hale.</p> <p>Tried before Hon. M. J. Saitold.</p> <p>The facts are sufficiently stated in the opinion.</p>

Tried before Hon. Littleberry Strange. This suit was commenced in March, 1852, and was an action of detinue for the recovery of slaves, by the appellant against the appellee. It lingered by successive continuances until the fall term of the court in 1869, when the defendant demurred to the complaint on the ground that slavery having been abolished in the State, the plaintiff can not recover. This demurrer was sustained, and judgment was rendered in favor of the defendant.

<p>Appeal from the Circuit Court of Marengo.</p> <p>Tried before Hon. M. J. Saeeold.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>[petition to vacate and set aside sale oe decedent’s lands, &c.]</p> <p>1. Decedent, sale of lands of; when order for not void. — An. executor’s or administrator’s sale of the lands of a decedent, under order of court, to pay debts, is not void, if it appears from the record of the proceedings on the application in the probate court for such order, that a proper application or petition made by such executor or administrator was filed inthe proper court, aud that the parties interested had proper notice of the application before the order was granted. — Rev. Code, § 2222; At Ala. 26, 39.</p> <p>2. Same ; jurisdiction of probate court to order sale; when attaches. —The filing of the application or petition for the order of sale by the executor or administrator, containing the proper allegations, and descriptions of the land and parties, as required by the Code, gives the court jurisdiction to hear and determine the case by order or decree.</p> <p>3. Same; effect of irregularities after jurisdiction attached. — Aud whatever irregularities may intervene after jurisdiction attaches by filing the application for sale, are hut errors; and they do not render the judgment of the court void for want of jurisdiction; unless it is shown that there has been some neglect of a statutory requirement, which declares the proceeding void on that ground. — Rev. Code, § 2225.</p> <p>A. Same. — The facts, that the petition or application is signed in the name of the petitioner “by his attorney;” that the petition or application is not verified on oath; that no guardian ad litem was appointed for the minors interested in the estate to be sold before the hearing, or that the report of the sale was not verified by the oath of the petitioner, do not render the sale void or defeat the jurisdiction of the court. These are but irregularities or errors which do not render the judgment or order of the court a nullity.</p>

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

' Tried before Hon. M. J. Sappold. This was an action by tbe appellee against tbe appellant on a promissory note given for tbe hire of slaves in 1863. There was a verdict and judgment for tbe plaintiff. Tbe point upon wbicb tbe case turns is fully set out in tbe opinion. Tbe appellant assigns error upon two other matters, but as there seems to have been no exception reserved as to tbe matters complained of, it is unnecessary to refer further to them.

<p>[ACTION ON PBOMISSOBY NOTE — BEYIYOB, AO.]</p> <p>1, Glaim; rokat not such as required to be presented within nine months of declaration of insolvency, &c. — A promissory note, upon which a suit is pending at the time an estate is declared insolvent, is not such a claim as is required to be verified by affidavit and filed against such estate within nine months after the declaration of insolvency. Such suit, on revival, may proceed to judgment, and the judgment maybe certified and filed as required by the statute. An objection by plea in abatement for a failure to file such note before judgment, is not sufficient to abate the suit.</p> <p>2. Revival of suit; within what time may be made.- — A motion to revive a suit pending in court, after the death of the plaintiff or defendant, comes in time, if made within eighteen months after the death of the plaintiff or defendant, or within eighteen months after the death or removal of the personal representative, when the first representative died before revival in his name. The mere suggestion of the death of the deceased party upon the record is sufficient motion for this purpose, in order to remove the bar of the statute. — Bev. Code, § 2542; 35 Ala. 79.</p>

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

This was a motion to dismiss the appeal in this case. The grounds of the motion are fully set forth in the opinion denying the motion.

Tried before Hon. Littleberry Strange. The appellee prosecuted to judgment a suit against the firm of Herrin, Marquis & Go. The names of the individual partners were not given, but the firm was sued merely as a firm, and judgment was rendered against the firm merely.

Heard before Hon. B. B. McCraw. On the 27th day of January, 1872, the general assembly of Alabama passed “ An act to establish a criminal court for the county of Bullock, with criminal and civil… Held: were not otherwise provided. On the 26th of.

Appear from the Circuit Court of Wilcox. Tried before Hon. P. O. Harper. This action was brought on the 7th of March, 1869, by Wm. A. Kimbrough, who describes himself “ as trustee of the estates” of H. C., 0.

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

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

<p>Appeal from the Circuit Court of Bussell.</p> <p>Tried before Hon. Littleberry Strange.</p> <p>At the fall term of the circuit court in 1867, the appellant, Buchannan, recovered a judgment against the appellee on a promissory note. At a special term of the court in January, 1869, the said defendant moved for a new trial, under an act of the legislature, passed October 10th, 1868, extending until the 26th of June, 1869, the operation of ordinance No. 39 of the convention. This ordinance authorized the granting of new trial in all cases where the judgment was rendered between the 11th of January, 1861, and the date of the ordinance, to-wit, December 6th, 1867, upon affidavit showing a meritorious defense, provided the application was made in twelve months from its passage. The court granted this motion for a new trial. The ground upon which it was based was, that the consideration of the note was the purchase of slaves.</p> <p>The cause was then returned to the docket to be heard again. At the fall term, 1869, it was called for trial, when the plaintiff moved to strike it from the docket on the ground disclosed by the above facts. The motion was overruled. The plaintiff next moved the court to set aside the order granting a new trial, made at the special January term, 1869, for the same reasons as alleged in favor of the other motion. This motion was overruled. The trial was proceeded with, and judgment was rendered for the defendant, under a charge of the court, that the purchase of slaves (which was made before the 27th of October, 1859,) was not a sufficient consideration for the note to sustain the plaintiff^ action. From this judgment the appeal is taken; and all the rulings, as recited above, are assigned as error.</p>

<p>[BILL IN EQUITY TO MABSHAL ASSETS, &C.]</p> <p>1. Deed of trust; when has preference over judgment, & e.- — A deed of trust for valuable consideration, duly recorded, supersedes a judgment previously rendered, hut on which no execution had issued at the date of the deed after the lapse of a term.</p> <p>2. Mvecutim; what destroys lien of — The lapse of a term destroys the lien obtained by an execution in the hands of the sheriff at the death of the defendant, and prevents the issue of a subsequent alias.</p> <p>3. Insolvent estate; claims against — Judgments rendered before a decree of insolvency of the debtor’s estate must he filed in the probate court like other claims.</p> <p>4. Sale of land, under execution; when will be enjoined al instance of mortgagee. Equity will enjoin a sale of land under a judgment and execution to which it is not subject, at the suit of a mortgagee or trustee in a deed of trust.</p>

<p>[motion to set aside judgment of affirmance on certificate.]</p> <p>X. Judgment; when may be affirmed, on certificate. — Iu appeals to the supreme court, the statute requires that the transcript shall be filed within the three first days of the court to which the appeal is taken. If this is not done, the judgment may be affirmed on certificate. — Rev. Code, § 3499.</p> <p>2, Same; when may be set aside. — And if such judgment is affirmed on certificate, the court may set the affirmance aside and reinstate the case, for good cause shown. But the motion for this purpose must be made during the term, and supported by affidavits showing satisfactory reasons why the transcript was not filed within the three first days after the call of the division to which the case belongs. — Rev, Code, p. 818, Rule 26.</p> <p>3. Same; when judgment of affirmance on certificate will not be set aside. — If the affidavits submitted with the motion show that the transcript was made ready by the clerk of the court below, as early as the commencement of the term of this court to which the appeal is taken, and that the cause belongs to the, third division, which by order of court was set to be called on Monday, the 5th day of February after the commencement of the court on the first Monday in January in the same year, and the judgment of affirmance is taken on certificate, on the 10th day of said month of February, — then the failure to file the transcript, because the same was not sooner furnished by the clerk than the commencement of the term, is not a satisfactory reason to set the judgment of affirmance aside. Such delay is not a compliance with the rule of practice prescribed by this court.</p>

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

<p>[ACTION ON EKOMISSOKY NOTE — NON-SUIT. ]</p> <p>1, Evidence, exclusion of; what presumption will he made as to rightfulness of. The evidence must be confined to the issue or issues made on the trial; and when the record fails to show what issue was joined between the parties, it will not be presumed that there was an issue which forbid the exclusion of testimony apparently irrelevant.</p> <p>2, Charges of court; what presumptions will he indulged in to uphold. — The charges of the court must be confined to the issues and the evidence before the jury on the trial; and where the record fails to show what the issues were, and all the testimony is set out in the bill of exceptions, this court will not presume that there was not an issue to which the charges were applicable, if the evidence tends to support the charges, when the appellant comes here to set aside a non-suit taken in the court below.</p>

Tried before Hon. J. McCaleb Wiley. The complaint in tbis case is as follows: William D. Horn, plaintiff, vs. Barbour County, defendant.

<p>[APPEAL EBOM OEDEB DISSOLVING INJUNCTION BESTBAINING MUNICIPAL TAXATION, &C.]</p> <p>1. Injunction; when dissolved on unsworn answer. — In an injunction bill, if the complainants waive the answers of the defendants being “made on oath,” this does not impair the right of the defendants to have the injunction dissolved upon the denials of such unsworn answers, in like maimer as if they were sworn.</p> <p>2. Subject of act; what sufficient expression of, in title. — The subject of a law to incorporate a city or town is the charter of incorpm'ation. This subject is sufficiently expressed in the title, by the words “An act to establish a charter for the city of Troy, in Pike county.” The title need not set out an enumeration of all the powers intended to be conferred on the corporate authority,</p> <p>3. Supplemental act; when not unconstitutional for non-compliance with Art. 4, section 2, of constitution. — An act “supplemental” to another act need not set out the act to which it is supplemental, in order to make it conform to the constitution, which requires, in case of the revision or amendment of a former act, that the “new act” shall contain the act “revised or amended.” — Const. Ala., Art. 4, § 2.</p> <p>4. Sealing act; test of constitutionality of. — A healing statute is not bad for unconstitutionality, if it gives validity to an act irregularly done, which the legislature could have authorized to be done in the irregular,way in the first instance.</p> <p>5. Acts of person disqualified to hold office; valid as acts of de facto officials, until inquisition of office. — The official acts of a person disqualified to hold office, “by reason of his participation in the late rebellion of the so-called Confederate States against the United States,” are not void, when such person holds his office under authority of the rightful government of the State, until after his right to the office is determined against him in some legal way.</p>

Tried before Hon. E. M. Kells. This was an action brought by appellee, against the appellant, to recover damages for its failure to deliver three bales of cotton, received and accepted by it as a common carrier, for transportation, &c. The evidence offered tends to show that the plaintiff, by his agent, the wagoner who hauled his cotton to the railroad depot, informed the railroad agent, at the depot to which the cotton was carried to be shipped, that he had some nine bales…

M. J. Saeeold. The suit was on a promissory note made by the appellant in favor of H. H. Ware & Co., and by them indorsed to the appellee’s intestate, who was one of the firm of Ware & Co. John H. Stone was indebted to Ware & Co. on an open account, for merchandise sold to him. H. H. Ware induced the appellant, who was under no obligation to do so, to give the note for Stone’s indebtedness, by assuring him that Stone’s agent would pay the debt on request.

Heard before Hon. Adam C. Feldeb, The bill in the present case was filed May 3d, 1869, the facts of which may be stated as follows:… Held: and the supreme court, in Gannon v. Turner, (supra,) said: “Alter the most careful consideration, we decided, in Pickens and Wife v. Oliver, (29 Ala. 528,) that the provisions of article 3, chapter 1, title 5, part 2, of the Code, relate to and provide for estates of married women which are made separate by operation of law; estates…

Tried before Hon. Littlebeery Strange. This was an action commenced by attachment sued out. by the appellee against the appellant before a justice of the peace. The papers sent up in the case by the justice to the circuit court, show that the justice rendered a judgment in favor of the appellee for the sum of sixty-eight 60-100 dollars; but the amount claimed before the justice no where appears in any of the proceedings had before him.

M. J. Saeeold. This was an action of unlawful detainer, commenced in the year 1861 before a justice of the peace. Judgment having been rendered in that court against the appellant, Eidgeway, he appealed to the circuit court. The appellee, as plaintiff, complained, in substance, that the defendant Eidgeway entered upon the premises described, of which he had the possession, without his knowledge or consent.

Tried before Hon. Vi. Skinner. The facts of the case may be stated as follows: On the first day of January, 1861, Matthew Steele, under the power vested in him as executor of the last will and testament of George Steele, deceased, sold a store-house and lot in the city of Huntsville, to John S. Dickson, for the sum of $6,500,' which was to be paid in three equal installments. Two of these installments were paid,- but at what time is not stated.

Tried before Hon. M'. J. Saeeold. The court below, in this ease, ruled that the plaintiff, who sued as guardian, Ac., could not maintain an action as such by virtue of letters of guardianship issued by a probate court of the State during the late war, unless the letters had been renewed by a court of the present State government ; and this ruling is now assigned for error.

<p>Appeal from tbe Circuit Court of Pickens.</p> <p>Tried before Hon. L. E. Smith.</p> <p>Tbe facts appear in tbe opinion.</p>

Tried before Hon. James Q. Smith. This was an action of trespass by Watson against appellants for the wrongful taking of seventeen boxes of tobacco, &c., the complaint following the form given in the Be-vised Code, page 677.

<p>[ejectment,]</p> <p>t. Ejectment; what will not support, against personal representative of decedent A plaintiff in ejectment can not recover against the personal representatives of a decedent on a parol gift of the land to him by the said decedent, though accompanied with the possession; whether the consideration of the gift was the marriage of the plaintiff with his daughter or not.</p> <p>[No briefs came into Eeporter’s hands.]</p>

Tried before Hon. M. J. Saepold. Wilson, the appellee, brought this action against J. A. Curry, the appellant, to recover damages for the conversion of twenty-seven bales of cotton. The first count, which was in the form given in the Be-vised Code “for conversion of chattels,” claimed damages for the conversion of twenty-seven bales of cotton.

Tried before Hon. W. G-. M. Colson. The transcript of the record in this case did not come into the Eeporter’s hands, and a search for it in the clerk’s office has proved ineffectual. The opinion of the court seems to set forth all the facts necessary to a proper understanding of the case.

Tried before Hon. J. McCaleb Wiley. This was an action commenced by appellee, against Barbour county, to recover damages for a fall from a public bridge, &c. The plaintiff in his complaint claimed $20,000 damages for injuries sustained by him, (which injuries are particularly set out,) which it is alleged resulted “ directly and immediately from his fall from a certain bridge across Lick creek, in Barbour county, Alabama, which bridge, more than six years before said fall…

Tried before Hon. James Q. Smith. The opinion states the case. Fitzpatrick & Williamson, for appellant. — Property must belong to some living person, natural or artificial. The “ estate of Mrs. Lewis ” is not such person. If it means Mrs. Lewis’ property, she was dead and could not hold property; if the “ estate,” it is a legal nonentity.

<p>[BILI, IN EQUITY TO SUBJECT SEPARATE STATUTOBY ESTATE OF MARBIED WOMEN TO PAYMENT OF NOTES SIGNED BY HER AND, HEB HUSBAND FOB FUBNITUBE USED BY HEB, *0,]</p> <p>1. Statutory separate estate; what creates. — Where the wife with her own moneys purchased a tract of land, in this State, on the 5th day of January, 1852, and the deed is made to her “.to have and to hold the above granted and described premises a,nd appurtenances unto her, her heirs and assigns for ever, to and for their and their only proper use, benefit and behoof for ever,” this creates in her a separate estate, to be held under the Code of Alabama and the Revised Code of Alabama,</p> <p>2, Same; for what debt can not be subjected, — The land thus held can not be sold under a decree on bill in equity for the payment of a promissory note given by the wife and her husband jointly, made by them since 1852, whether the debt so made is her debt or the debt of her husband, unless, perhaps, it was for “articles for the support and comfort of the household,” under section 2376 of the Revised Code,</p> <p>[No briefs reached Reporter.]</p>

Tried before Hon. John D. Cunningham. The appellants, Murray and Bell, were indicted for burglary and grand larceny in separate counts of the same indictment. The first count was nolle prossed.

Tried before Hon. John D. Cunningham. Tbe indictment in this case contained four counts. The first count was nolle prossed. Held: that after a new trial on a conviction for manslaughter, the charge of murder was reopened. — U. S. v. Hardin, 6 Penn. L. J. 23 ; 1 Wall. p. 127.

<p>Appeal from the Circuit Court of Coffee.</p> <p>Tried before Hon. J. McCaleb Wiley-.</p> <p>This was a real action in the nature of ejectment, under the Code, brought by appellants against appellee, Brown, in July, 1873, to recover possession of a tract of land described in the complaint.</p> <p>The plaintiffs claimed under a deed dated July 24, 1873, made to them as purchasers at a tax sale in 1871, by the judge of probate of Coffee county, under sections 85 and 86 of the “ act to establish revenue laws for the State of Alabama,” approved December 31, 1868, the owner of the land having failed to redeem the same within two years. This deed was of the form and substance required by said section 86. The defendant claimed under a deed dated January 1,1873, from one Noble, who had owned the land for fifteen years previous to the sale.</p> <p>In order to a proper understanding of the case, it is necessary to revert briefly to certain provisions of the revenue law.</p> <p>Section 19 provides that “it shall be the duty of each person liable to taxation upon notice given by the assessor,” as hereinafter stated, “to render to the tax assessor in writing a complete list of all items, and the value of each item, upon which they are liable to be taxed,” &c.</p> <p>Section 31 prescribes that the assessor must give notice of his appointments at least fifteen days, and by posting and publication, &c.</p> <p>It is provided by section 34, that after the assessor shall have completed his sittings, “he shall make a demand in person, or by deputy, upon delinquent tax-payers, or such as shall have failed to meet him at his appointments, wherever he may find them, * * * and when unable to find them may leave written notice at the residence of each such delinquent,” &c.</p> <p>Section 49 is as follows:</p> <p>“ Sec. 49. Be it further enacted, That after the collector shall have completed his sittings for the collection of the taxes as required by section 45 of this act, he, or his authorized deputy, shall make a personal demand upon delinquent tax payers wherever they may be found, for the amount of their taxes, penalties and costs, and when unable to find them, shall leave a written notice at the place of residence of such tax payers; and it shall be the duty of such delinquent, within the next fifteen days, to make payment in full of their taxes, forfeitures and fees to the collector or his deputy,”-</p> <p>It is further provided, that after the first of January in each year, the tax collector shall levy on and sell any personal property of delinquent tax-payers, and that where no personal property can be found, with reasonable search, the tax collector may proceed against real estate, in a mode prescribed, and which is not material to the points decided.</p> <p>After a sale of property for non-payment of taxes, it is the duty of the tax collector,‘under section 72, to make out and deliver to the purchaser a “certificate of purchase,” which shall show description of the real property — that such real property was assessed by the assessor, to whom assessed, the date of the assessment, for wbat year the taxes are due, the amount of taxes, &c., and who became the purchaser, &c. If such property is not redeemed within two years, it is the duty of the probate judge to make a deed as prescribed in sections 85 and 86,</p> <p>Section 87 is as follows:</p> <p>“ Sec. 87. Be it further enacted, That the deed shall be signed by the probate judge in his official capacity, and acknowledged by him before some officer authorized to take acknowledgments of deeds; and. when substantially thus executed and recorded in the proper record of titles to real property,- shall vest in the purchaser all the right, title, interest and estate of the former owner in and to the land conveyed, and also the right, title, interest and claim of the State and county thereto, and shall be prima facie evidence in all the courts of this State, in all controversies and suits in relation to the rights of the purchaser, his heirs or assigns, to the land thereby conveyed, of the following facts:</p> <p>1. That the real property conveyed was subject to taxation for the year or years stated in the deed.</p> <p>2. That the taxes were not paid at any time before the sale.</p> <p>3. That the real property conveyed had not been redeemed from the sale at the time of the deed, and shall be conclusive evidence of the following facts:</p> <p>1. That the property was listed and assessed at the time and in the manner required by law.</p> <p>2. That the taxes were levied according to law,</p> <p>3. That the property was advertised for sale in the manner and for the length of time required by law.</p> <p>4. That the property was sold for taxes as stated in the deed.</p> <p>5. That the grantee named in the deed was the purchaser.</p> <p>6. That the sale was conducted in the manner required by law.</p> <p>7. That all the prerequisites 'of the. law were complied with by all the officers who had, or whose duty it was to have had, any part or action in any transaction relating to or affecting the title conveyed, or purporting to be conveyed by the deed, from the listing and valuation of the property up to the execution of the deed, both inclusive, and that all things whatsoever required by law to make a good and valid sale, and to vest the title in the purchaser were done, except in regard to the three points named in this section, wherein the deed shall be prima fade evidence only. And in all controversies and suits involving the title to real property claimed and held under and by virtue of a deed executed substantially as aforesaid by the probate judge, the person claiming title adverse to the title conveyed by such deed, shall be required to prove, in order to defeat the said title, either that the said real property was not subject to taxation for the year or years named in the deed, that the taxes had been paid before the sale, or that the property had been redeemed from the sale according to the provisions of this act. But no person shall be permitted to question the title acquired by a probate judge’s deed, without first showing that fie or she, or the person under whom he or she claims titles, had title to the property at the time of the sale, and that all taxes due upon the property had been paid by such person, or the person under whom he or she claims titles as aforesaid: Provided, that in any case where a person has paid his taxes, and through mistake in the entry made in the tax collector’s books, or in the receipts, the real property upon which the taxes were paid, was afterwards sold, the probate judge’s deed shall not convey the title: And provided further, that in all cases where the owners of real property sold for taxes shall resist the validity of such tax title, such owner may show and prove fraud committed by the officer selling the same, or in the purchaser to defeat the same; and if fraud is so established, such sale and title shall be void.”</p> <p>“ Sec. 93. Be it further enacted, That before any person claiming title to real property sold for taxes under this act shall be entitled to prosecute or defend any suit against any person claiming such property under any tax sale, he shall deposit with the court having jurisdiction in the case, double the amount of the purchase money, together with all taxes and interest accruing since the sale, the value of improvements made by the purchaser, said improvements to be valued by three disinterested persons, and the probable amount of costs of suit.”</p> <p>There are other sections of the law as to the assessment, boohs, &c., which could not well be here set out without unnecessarily drawing out the report of the case. '</p> <p>The defendant’s plea is not copied in the transcript, but it is stated in the bill of exceptions that defendant pleaded “not- guilty of withholding the possession of said lands from the plaintiff.” On the trial, “ the plaintiffs moved the court to strike [out] the defendant’s plea ” and give them judgment, on the grounds, in substance, that they claimed under a deed made by the judge of probate, &e., after the time had expired for redemption, the land having been sold by the tax collector for non-payment of taxes, and defendant had not made deposit as required by § 93. In support of this motion, the plaintiff showed that no deposit had been made, and introduced a deed executed by the probate judge to the lands in controversy, under sections 85 and 86, and in strict compliance therewith, and in compliance with the requisitions contained in the first part of section 87. This deed had been duly recorded. The court refused “ to strike out the defendant’s plea or to require him to make any deposit, or to allow the plaintiff to have judgment, remarking that said section 93 was void,” and to the action of the court the defendant duly excepted.</p> <p>The plaintiffs then offered in evidence the tax deed from the judge of probate, hereinbefore referred to. This deed recited that the land in controversy “ was subject to taxation for the year 1870, and that the taxes assessed upon said real property for the year 1870 remained due and unpaid at the date of the sale hereinafter named; that the tax collector did, on the 6th day of March, 1871, by virtue of the authority in him vested, offer for sale the premises, on the first Monday in March, 1871,' at a public sale made at tlie court-house, “ in substantial compliance with all the requisitions of the statute in such cases made and provided, at which sale plaintiffs became the purchasers at a named price,” &c. &c., [setting out all the facts required by law in such a deed,] and in accordance with the provisions of the statute conveyed the premises to the plaintiffs, who were the purchasers at said tax collector’s sale.</p> <p>The defendant introduced James Noble, who owned the premises in 1870, and sold them January 1st, 1873, to the defendant. Noble testified that he had not given in the lands for assessment and no demand had ever been made on him to give in the same for assessment; that at the time of the sale he owned, besides the land, $250 worth of personal property, consisting of oxen, wagons, and other visible property, out of which the money could have been made to pay the taxes; that he knew nothing of the lands having been advertised until long after the sale; that he did not pay his taxes for 1870.</p> <p>The deputy tax collector, who did all the business for the years 1870-71, testified that no personal demand was ever made on Noble for his taxes, and that he did not search for any personal property of Noble out of which to make the taxes, but that he sold the premises described in the deed for non-payment of taxes, and made a certificate of purchase. This witness further testified that he had examined the tax books, and that there was no assessment in ib or in the supplemental assessment. The certificate of purchase made by the tax collector was introduced in evidence, and it showed a sale, in compliance with the revenue law, of the premises in question, and recited that the real estate “was assessed by J, C. Jolly, assessor of said county, on the — day of-1870, as the property of J. H. Y. Noble.”.</p> <p>The judge of probate testified that he was custodian of the books and records of said court, among which were the “ tax books of real property of the county as made out by the tax assessor for the year 1870, and that he could not find, after careful search, any assessment made to James Noble i& said book. The plaintiffs objected -to the introduction of all this evidence, and moved to exclude it as irrelevant, which objection and motion the court overruled and plaintiff excepted.</p> <p>The court charged the jury, among other things, “ that the tax law must be taken as a whole, and that in order to authorize the plaintiffs to recover in this action they must show by positive proof that the assessor and collector did every thing required of them by law and in the manner directed by law; that if the proof .failed to show that the collector advertised and attended his collectings as required by law, and that he then called on Noble for his taxes; or that Noble had no- personal property which might have been sold for the taxes, then the plaintiffs could not recover in this action. That a failure of the tax collector to perform every duty required by law and in the manner as the law directs, would be a legal fraud on the said Noble, and that the probate judge’s deed would convey no title, and that the plaintiff would not be entitled to recover in this action on said deed; that section 87 of the revenue law of 1868 was utterly void.”</p> <p>The plaintiff excepted to this charge, and requested, jn writing, charges in substance: -that to defeat plaintiffs, defendant must prove either that the premises were not subject to taxation for the year named in the deed, or that the taxes had been paid, or the premises redeemed from sale in accordance with requirements of the revenue law of 1868.</p> <p>2d. That defendant can not question the title acquired by the probate judge’s deed without showing that the person under whom he claims had title at the time of the sale, and that all taxes due upon the property had been paid by him or the person under whom he claims.</p> <p>3d. That defendant could not be permitted to show that the party whose land was sold for taxes, had sufficient personal property out of which to have made the taxes.</p> <p>4th. That the duties of the assessor and collector as to giving notice, making demands, &c., as required by the revenue law of 1868, are directory merely, and a failure to comply with, them can not avoid a sale made for non-payment of taxes.</p> <p>5th. That the jury can not consider any defense to this action, except such as are set out in section 87 of the revenue law.</p> <p>The court refused to give either of these charges, and defendant duly excepted.</p> <p>The various rulings of the court to which exception was reserved, the charges given, and the refusal to charge as requested, are now assigned for error.</p> <p>The rule of evidence has been changed since the sale of the land, in Thomson v. Rivers, 43 Ala. pp. 6, 33; a change which was perfectly competent for the legislature to make.- — § 87 of revenue law of 1868.</p> <p>The legislature certainly had a right to say what should be a valid sale, and what should be sufficient to make it void, and in doing so they had a right to declare that no mere irregularity should be sufficient to avoid the sale, or be let in to show fraud unless the purchaser was a party to such default or fraud. The court erred in letting the defendant prove any thing, except that the land was not subject to taxation for the year or years mentioned in the deed, or the taxes had been paid before the sale, or that the land had been redeemed from the sale. As to all other matters which seem to have been treated by the legislature as mere irregularities which are not considered of sufficient importance to effect the title conveyed or the right of the purchaser to recover, the legislature has declared that the mere recital of them in the deed shall be conclusive evidence that they were done and performed, and the letting in parole evidence to contradict such recitals is positively prohibited, as it would allow the deed to be attacked for mere irregularities which can not be done by said revenue law. And the law which forbids a collateral attack on a deed for mere irregularities, has become a settled rule of property in this State. — See Weir v. Clayton, 19 Ala. 132, and authorities there cited, especially Weir v. Bradford, 20 Ala. 676.</p> <p>It was right and proper that the legislature should provide some summary way of collecting the taxes, sufficient to carry on the government, and also to provide that a tax payer who did not pay his taxes should not be allowed to insist on mere irregularities to avoid the sale, and thus get out of paying his part of the necessary expenses of the government, while by the authority and protection of such government alone are all his rights of person and property protected.</p> <p>Another authority — section 2014, Revised Code — makes letters of administration, <fcc., conclusive evidence, and this section has never been questioned as exceeding the limitation of the legislature. — See Gray's Adm’r v. Cruise, 36 Ala. 559, and authorities there cited. It is within the province of the legislature to change the rule of evidence in tax titles. — See Lessee of Dun v. Gains & Gilbert, 1 McLean’s Ohio C. O. R. 322. Taxation is a sacred right, essential to the existence of the government; an incident of sovereignty. The right of legislation to attach it upon all persons and property within the jurisdiction of the State is co-extensive. — See Dobbins v. The Commissioners of Erie County, 16 Peters, 435.</p> <p>Neither the record nor dooket gives the name of appellee’s attorneys.</p>