Volume 49 — Alabama Reports

From the City Court of Montgomery, on change of venue from the Circuit Court of Dallas. Tried before the Hon. Jno. D. Cunningham. The record in this case has been lost. Nothing but the opinion has come into the hands of the reporter.

From the Circuit Court of Wilcox. Tried before the Hon. P. O. Harper.

From the Circuit Court of Henry. Tried before the Hon. J. McCaleb Wiley.

From the Criminal Court of Dallas. Tried before the Hon. Geo. H. Craig. The defendants in this case, Ben Randle, and Cressey Randle, his wife, were jointly indicted for stealing a bale of cotton, . which 'was alleged to be “ of the value of more than one hundred dollars, the personal property of John F. Burns ; ” were convicted of petit larceny, and fined fifty dollars each.

From the Circuit Court of Tuscaloosa. Tried before the Hon. Wm. S. Mudd. Tbe indictment in tbis case charged that the defendant, before the finding thereof, “ falsely, and with the intent to injure or defraud, did forge an order purporting to be the act of one John A. Thompson, which order is in words and figures following: ‘474. Nutton Clumbus'St. July 25th, 1872, Boston, Mass. Mr. Moody, banker, Tuskaloos^, Ala.

<p> Indictment for Mayhem. </p> <p>1. Mayhem ; charges to jury as to constituents of offence. — Under an indictment for mayhem, by biting off an ear in a fight (Rev. Code, § 3669), a charge which instructs the jury “that if they believe, from the evidence, that the defendant did not design to bite the ear ” of the prosecutor “ any more than his cheek or other portion of his face,” they must acquit the defendant, is properly refused.</p> <p>2. Same. — So, also, a charge which authorizes an acquittal, “ if the defendant bit off the ear tinder the instinct of self-defence,” or “ under the impulse of his animal nature or mere instincts,” is properly refused.</p> <p>3. Abstract charge. — A charge asked, which is abstract, is properly refused.</p>

From the Circuit Court of Hale. Tried before the Hon. M. J. Saffold. The defendant in this case was indicted for carrying concealed weapons. On the trial, as appears from the bill of exceptions, he reserved several exceptions, to the rulings of the court, which are here presented for revision, but which the opinion of this court renders it unnecessary to state.

<p>From the Criminal Court of Dallas.</p> <p>Tried before the Hon. Geo. H. Craig.</p>

From the City Court of Mobile. Tried before the Hon. C. F. Moulton.

From the City Court of Mobile. Tried before the Hón. C. F. Moulton.

From the Circuit Court of Madison. Tried before the Hon W. J. Haralson.

From the Circuit Court of Wilcox. Tried before the Hon. P. O. Harper.

From the Circuit Court of Coffee. Tried before the Hon. J. Mo Caleb Wiley.

<p>From .the Circuit Court of Montgomery.</p> <p>Tried before the Hon. Jas. Q. Smith.</p>

From the Circuit Court of Barbour. Tried before the Hon. J. McCaleb Wiley.

From the Circuit Court of Barbour. Tried before the Hon. J. McCaleb Wiley. There is no bill of exceptions in this case, and no writ of error. The clerk states, in his final certificate appended to the transcript, that tbe defendant “ prayed an appeal to tbe present term of the Supreme Court, which was granted.” There are several assignments of error, which will be readily understood from the opinion of the court.

<p>Fbom the Circuit Court of Etowah.</p> <p>Tried before the Hon. ¥m. L. Whitlock. .</p>

<p> Application for Mandamus to strike Cause from Docket. </p> <p>Judicial proceedings during late war. —A pending suit, commenced in 1864, and now standing on the docket of the Circuit Court, cannot be struck from the docket on motion, on the ground that the process and proceedings are inoperative and void.</p>

Tried before the Hon. E. M. Keils. The facts of this case, as stated very fully in the opinion of the court, are as follows: — “ This proceeding was commenced in the City Court of Eufaula, by Richard D. Locke, in the name of the State of Alabama, on his relation, under chapter five of the Revised Code, page' 599, ‘To vacate-charters of corporations, and to prevent usurpation of offices.’ The relation states, and gives the said court to be informed, that the said relator was…

In this case, a motion was entered on tbe docket of tbis court, on the 27th February, 1873, in these words : “Motion is made by W. W. Screws, for a mandamus to Pat.

Application by P. E. Collins for a mandamus to the Circuit Court of Mobile, to compel that court to reinstate on its docket an action brought by said Collins against the “ Board of School Commissioners of Mobile County,” which said court had struck from the docket, on the suggestion of P. Hamilton and Thos. H. Herndon, as amici curice, that the summons and complaint showed no party against whom an action could be maintained.

Heard before the Hon. Adam C. Felder. The bill in this case was filed by James B. and B. W. Mason, as the executors of the last will and testament of Benjamin J. Smith, deceased, to obtain a judicial construction of said ' decedent’s will, which was in these words : — “ The State of Alabama, 1 In the name of God, amen. I, Lowndes County. j Benj. J. Smith, being of sound mind and disposing memory, do make and ordain this my last will and testament.

Heard before tbe Hon. Charles Turner. The original bill in this case was filed on the 22d December, 1868, by J. J. Ivey and ‘others, against Nathan Bozeman, D. W. Bozeman, and Frank Mann ; and sought to enforce a vendor’s lien on certain lands, which were therein described as “ all of section thirty-six ( except the east half of the southeast quarter), township eighteen, range eighteen, containing • about five hundred and eighty-two acres.” The bill alleged that these lands…

<p> Insolvent Estate ; Contest between Administrator and Creditor. </p> <p>1. Filing and verifying claim. — A claim against an insolvent estate must be filed in the office of the probate judge, and verified within nine months after the declaration of insolvency (Rev. Code, § 2196), although it was filed in said office, properly verified, before the declaration of insolvency.</p> <p>2. Probate decree on evidence. — When a case is submitted to the decision of the probate judge without the intervention of a jury, his decree will not be reversed on error or appeal, unless there is a strong preponderance of the evidence against its correctness.</p>

<p> Bill in Equity for Account and Settlement of Partnership. </p> <p>1. Exception to legister’s report — It is the appropriate function of an exception to the register’s report under a reference, to point out with distinctness and precision the specific error complained of, or the particular item of debit or credit objected to, and when it fails to do this, the report will be sustained, if it does not transcend the limits of the order of reference.</p> <p>2. Error without injury in admission of cumulative evidence. — The chancellor’s decree will not be reversed on error on account of the admission of irrelevant evidence by the register in the statement of an account under an order of reference, when the record shows that there was sufficient legal evidence to sustain the disputed-item.</p> <p>3. Partnership books. — OAthe statement of an account between partners by the register, under a general order of reference, the partnership books are admissible evidence.</p>

Tried before the Hon. J. McCaleb Wiley. This action was brought by the appellees, suing as partners, against C. N. Carpenter and Dennis Rogers; and was founded on a promissory note for #226.64, signed by said defendants and one A. J. Carpenter, who was not sued, dated the 13th February, 1861, and payable on or before the 25th December next after date, to W. It. Parker or bearer.

Tried before the Hon. J. McCaleb Wiley. This action was brought by Mrs. Eraeline Clark against H. C. Hart, and was founded on the defendant’s note for $965, dated Eufaula, March 21, 1863, and payable twelve months after date, to Thomas Robinson and Emeline Clark, as the administrators of J. W. Clark, deceased, or bearer.

<p> Application by Surety on Official Bond of Oounty Administrator for Discharge. </p> <p>Oounty administrator ; discharge of sureties on official, bond.— The general administrator of a comity is not a “ public officer,” within the meaning of section 183 of the Revised Code, which authorizes the discharge of the sureties “upon the official bond of any public officer required to be approved by the judge of the Circuit Court, or judge of probate, or chancellor.” (Saitold, J., dissenting.)</p>

Tried before the Hon. W. H. Crenshaw. This action was brought by the appellant, as the administratrix of her deceased husband, Dr. Thomas D. Stallings, against Ira E. Hinson and Lewis Bear, and was founded on a promissory note for $838.50, made by said defendants, dated the 19th February, 1870, and payable to the order of said intestate on the 1st day of November next after date. The complaint also contained a count on an account stated.

Tried before the Pión. E. M. Keils. Tbe facts of this case are fully stated in the opinion of the court, except in reference to the special count which was added to the complaint by amendment, and which was in these words: “ The plaintiffs claim of the defendant the further sum of $28.45, with interest thereon from the 12th day of November, 1870, in this, that on the 12th day of November, 1870, the defendant purchased of the plaintiffs goods, wares, and merchandise, to the…

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

Clair. Heard before the Hon. Charles Turner. The bill in this case was filed by B. B. Wharton, W. M. Wharton, and G. W. Wharton, against John C. Brown, as the administrator de honis non of the estate of Hugh Jones, deceased; and sought to enjoin a judgment at law which said administrator had obtained against the complainants, founded on a note given for the purchase money of land bought by said B. B. Wharton at said administrator’s sale.

Tried before the Pión. P. O. Harper. This action was brought by Catherine Rothschild, as the administrator of S. Rothschild, deceased (and afterwards revived in the name of a succeeding administrator), against H. B. Davidson ; and was founded on a promissory note, of which the following is a copy: — “ $702.72 Claiborne, April 5, 1862. “ One day after date, I promise to pay to the order of 5.

Tried before the Hon. W. H. Crenshaw. This action was brought by Anderson Sims against the County of Butler, to recover damages for injuries sustained by him from the fall of a public bridge. , The amended complaint, which was substituted for the original, contains two counts, which were in the following words : — “ The plaintiff claims of the defendant two thousand dollars damages for injuries sustained by him in the loss of and damages to his property occasioned by the…

Tried before the Hon. John Elliott. The appellee in this case, having obtained a judgment against F. M. Gilmer in January, 1869, sued out a garnishment on the 14th January, 1870, against the appellant, as the debtor of said Gilmer.

<p> Trover and Case for Conversion and Loss of Horse. </p> <p>1. Liability of partnership for torts of partner. — If a horse is borrowed by one partner, to be used in and about the partnership business, and is lost by his negligence or other wrongful act, the owner may maintain an action against the partnership for the loss or conversion.</p> <p>2. Agency; how far question of fact.— Generally, the question of agency vel non is a matter of fact, to be found by the jury; yet, when the fact of agency is proved, the court may decide whether the agency is general or special, and may charge the jury accordingly.</p> <p>3. Same; special agent. — A special agent is one who has a delegated authority to do a single act, and any person dealing with him is bound to inquire as to the extent of his authority.</p>

<p>Appeal from tbe Chancery Court of Cherokee.</p> <p>Heard before the Hon. B. B. McCraw.</p>

Tried before the Hon. ¥m. L. Whitlock. This action was brought, by R. B. Rhea, against A. W. Sheppard and others, to recover the possession of a certain tract of land, which was particularly described in the complaint, together with damages for its detention.

<p>Appeal from the Circuit Court of Dallas.</p> <p>Tried before the Hon. M. J. Saffold.</p>

<p> Bill in Equity to enforce Parol Trust. </p> <p>Parol contract for purchase of land enforced against agent in favor of principal. — When an agent receives from his principal money to be invested in lands for him, and uses the money so furnished (with his own money) in making the purchase, but takes the title in his own name, and repudiates the trust, a Court of Equity will enforce the trust against him, and will not allow him to setup the Statute of Frauds in his defence, on the ground that his agency was without written authority.</p>

Tried before the Hon. M. J. Sapeóle. — 1. When a public agent acts in the line of his duty, and by legal authority, his contracts on account of the government are public, and not personal. Hodgson v. Dexter, 1 Cranch, 345 ; Paries v. Ross, 11 Howard, 362 ; Story on Agency, §§ 302-5. 2.

Tried before the Hon. John D. Cunningham. The facts of this ease, as stated in the opinion of the court, are these : “ Tennent Lomax died in Montgomery County,1 in the year 1862, testate; and his will was there proved, and letters testamentary were issued to the appellee, who was named in said will as executrix.

<p> Detinue for Photographic Tools and Instruments. </p> <p>Verdict and judgment. — In detinue for a great number of tools and instruments of various kinds, belonging to the business of a photographist, a verdict in these words, “ We, the jury, find for the plaintiff, and not finding it practicable to assess the value of each article sued for separately, we assess the value of the whole at $2,000, and we assess the damage for its detention at $250,” is sufficiently formal to support a judgment for the plaintiff, if not objected to in the court below; and a judgment on such verdict, “ that the plaintiff have and recover of the defendant the property sued for herein, and described in the complaint, or its value so assessed by the jury for the detention thereof,” contains nothing or which the defendant can complain on error.</p>

Tried before tbe Hon. L. B. Strange. This action was brought by C. M. Hooper, as tbe administrator de honis non of tbe estate of Hartwell B. Green, deceased, against R. P. Scarborough, to recover tbe possession of a certain tract of land in said county, wbicb belonged to said H. B. Green at tbe time of bis death, and was sold on tbe 29th day of January, 1862, by W. W. Harris and John W. Purifoy as his administrators, under an order of the Probate Court of said county; the…

<p> Action on Common Counts. </p> <p>1. Coercing or accepting satisfaction of judgment pending appeal. — An appeal will not be dismissed, on the ground that the appellant has coerced or accepted satisfaction of the j udgment from which he appeals, when the evidence shows that the execution was not issued under his instructions, that he refused to receive the money from the sheriff when informed of its collection, and instructed him to return it to the defendant.</p> <p>2. Presumptions as to pleadings. — When the record shows that the case was tried on issue joined, but does not show what pleas were filed, the appellate court will presume that only the general issue was pleaded, and will not consider any defences but such as might properly have been made under that plea.</p> <p>3. Bailment of note on third person, by debtor to creditor ; plea of general issue.— If a debtor places in the hands of his creditor a note on a third person, which the creditor agrees to collect and apply to the satisfaction of his debt, but fails to do so, he is bound to show that he used due diligence to collect the note, and is responsible to the debtor, in a special action on the case, for any actual damages caused by his want of due diligence ; but this would constitute no defence, under the plea of the general issue, to an action on the original debt.</p>

<p>Appeal from the Circuit Court of Dallas.</p> <p>Tried before the Hon. M. J. Saeeold.</p>

<p>Appeal from the Chancery Court at Mobile.</p> <p>Heard before the Hon. A. W. Dillard.</p> <p>cited Story’s Equity, § 362; Kerr on Fraud, 204-6, and note; 7 Wendell, 436; 2 Cowper, 435 ; 6 Iredell, 41; 7 Iredell, 341; 8 Cowen, 406 ; 6 Paige, 526 ; 1 Conn. 525 ; 1 Stewart, 67.</p> <p>cited Foote v. Coll, 18 Ala. 594 ; Cannard v. Eslava, 20 Ala. 744 ; Stiles Co. v. Eight-foot, 26 Ala. 444 ; Pharis v. Leachman, 20 Ala. 676 ; Largan v. Waring, 11 Ala. 994 ; Roper v. McCooh, 7 Ala. 324; Morgan r. Crall, 3 Porter, 473 ; 20 John. 564.</p>

Tried before the Hon. John Elliott. This action was brought by E. H. Pomeroy against J. M. Meaher and T. Meaher, to recover the rent, or (as alleged in the second count) the value of the use and occupation, of a certain lot in Mobile, and seems to have been commenced in the City Court, though the trial was had in the Circuit Court. “ On the trial,” as the bill of exceptions states, “ the plaintiff introduced evidence tending to show that the defendants rented from her, for…

Tried before the'Hon. John D. Cunningham. — In contemplation of law, Jefferson Falkner as an individual, and Jefferson Falkner as executor of W. B. S. Gilmer, are entirely different persons ; and this court has frequently recognized the distinction. Tillinghast v. Johnson, 5 Ala. 514; Carter v. Ingraham, 43 Ala. 78.

Tried before the Hon. John Elliott. None of the papers in this case, except the opinion of the court, have come to the hands of the reporter.

<p>Appeal from fcbe Chancery Court of Randolph.</p> <p>Heard before tbe Hon. B. B. McCrA'w.</p>

<p> Action hy Employee to recover Damages for Breach of Contract. </p> <p>1. Construction of contract for employment of clerk in dry-goods store. — In an action against dry-goods merchants, to recover damages for a breach of contract as follows : “Defendant R. offered plaintiff $75 a month to clerk for defendants; but plaintiff told said R. that ho would enter into no agreement to serve him as clerk unless his position would be permanent, and R. replied that his position would be permanent, — permanent above any one in the house; " a charge to the jury, “ that if the employment was not for a month, a reasonable construction would be for a year, in the absence of a construction by the parties/' cannot be held erroneous by the appellate court.</p> <p>2. Abstract charge. — A charge asked, which assumes as proved a fact which the evidence does not clearly establish, is abstract, and is properly refused for that reason.</p> <p>3. Verdict. — A verdict for the plaintiff, estimating (instead of assessing) his damages at a specified sum, is sufficiently formal and definite to support a judgment in his favor for the sum specified.</p>

In the matter of the estate of J. Bruce Gill, deceased, on final settlement of the accounts of Sampson R. Sheppard, as administrator de bonis non.

<p> Trover for Conversion of Mule. </p> <p>1. Estoppel enpais. — Where personal property is sold and delivered to the purchaser, with the understanding that the title is to remain in the vendor until the purchase money is paid, or secured by mortgage; and a third person, desiring to trade for the property with the purchaser, informs the vendor of that fact, and asks if he has any mortgage on the property; and the vendor replies, “ that he has no mortgage, and does not expect to have any,” and does not disclose his title or claim, — he is estopped from setting up his title against such third person, who bought the property on the faith of his said statements.</p> <p>2. Bill of exceptions; execution, and contents. — If the presiding judge, in making up a bill of exceptions, incorporates into it, against the objection of the party excepting, the charges which were given by the court without objection, as well as those which were refused, this is matter of discretion, and is not revisable by the appellate court.</p> <p>3. Verdict; what is revisable. — Regularly, the jury ought tobe kept together until they agree on their verdict, and the verdict ought to be reported to the court; but how and when this shall be done-is matter of discretion, and is not revisable on error, unless the party complaining affirmatively shows injury.</p>

Heard before the Hon. A. W. Dillard. The bill in this case was filed by the appellees, suing as partners, to redeem a certain tract of land which had been sold under a mortgage executed by John R. Drish in his lifetime, and purchased at said sale by Charles Hopkins & Co., who afterwards sold and conveyed to the defendants. John R. Drish died in July, 1867. The lands were sold under the mortgage in February, 1869.

<p> Action for Slander. </p> <p>1. Sufficiency of complaint in statement of time. — In an action for slander, commenced on tlie 30th day of September, 1871, an averment in the complaint that “said words were spoken in the year 1871,” shows with sufficient certainty that they were spoken before the commencement of the suit.</p> <p>2. Sufficiency of assignment of error. — An assignment of error in these words, “ The court erred in the several rulings and failures to rule on questions of evidence, as shown by the bill of exceptions,” is too general and indefinite; hut in this case, the deficiency of the assignment being supplied by the brief of the appellant’s counsel, the questions raised in the brief were considered and decided.</p> <p>3. Presumption in favor of judgment. — If a witness, testifying to the speaking of the slanderous words-charged, is uncertain as to the precise time at which they were spoken, and it does not clearly appear whether they were spoken before or after the commencement of the action, and the evidence is admitted by the court “ for the purpose of sustaining the complaint and also increasing the damages,” this it not a reversible error, since error must be affirmatively shown, and the evidence -would be admissible for both purposes, if the words were spoken before the commencement of the suit.</p> <p>4. Words spoken after suit brought. — Words spoken after the commencement of the suit, similar to those charged in the complaint, are admissible as proof of malice.</p> <p>5. Impeaching witness. — A witness may he impeached by contradicting his testimony as to a particular statement made by him out of court, if that statement be material.</p> <p>6. Sustaining impeached witness. — When a witness is impeached, not by proof of contradictory statements made by him, but by showing that his general character for truth is bad, his testimony may be corroborated by showing that, prior to the commencement of the action, he made statements out of court uniform and consistent with his testimony in court.</p> <p>7. Error without injury in admission of evidence favorable to party objecting. — When the plaintiff brings out evidence which tends to sustain the defendant’s case, and the defendant moves to exclude it, the overruling of his motion is not an error of which he can complain.</p> <p>8. Practice on trial of issue as to veracity of witness. — On the trial of an issue respecting the veracity of a witness, much must be left to the sound discretion of the primary court, and the appellate court will not reverse on account of its rulings, unless it clearly appears that the appellant was thereby deprived of some important legal right in the case.</p>

<p>Appeal from tbe Circuit Court of Lowndes.</p>

<p> Detinue against Sheriff for Property seized under Attachment. </p> <p>1. Admissibility of proceedings in attachment suit, under plea of justification. — In • detinue against a sheriff for property seized under attachment, the plaintiff being the defendant in the attachment suit, the attachment and proceedings under it are competent evidence for the sheriff, under the plea of justification.</p> <p>2. Claim of exemption; when made. — "When property is seized under attachment by the sheriff, he is not required to restore it to the defendant on demand, unless the statutory affidavit and claim of exemption (Rev. Code, §§ 2885-6) is made and exhibited to him within five days after the levy.</p> <p>3. Who may claim exemption. — It may be gravely doubted whether an absconding debtor, against whom an attachment has been sued out on the ground that he is about to remove from the State, can claim the benefit of the exemption law.</p> <p>4. Exemption Law of February 19, 1867 ; when of force. — The Exemption Law of February 19, 1867 (Rev. Code, § 2884), being an act of the provisional government which has never been repealed, was continued in force by the act approved July 29, 1868 (Session Acts 1868, p. 7), but was not ratified by that act, and did not become operative by virtue of that act.</p> <p>5. Error without injury in charge against plaintiff not entitled to recover. —A judgment will not he reversed, at the instance of the plaintiff below, on account of an erroneous charge to the jury, when the record shows that he cannot recover on the evidence in any event.</p>

Tried before the Hon. J. McCaleb Wiley. This action was brought by A. T. Stewart & Co., against Meyer Sonneborn, and was founded on two judgments which said plaintiffs had recovered in the Superior Court of New York city, against E. Leipzeiger & Co.; one in June, 1867, and the other in August, 1869.

This was a motion to quash an execution for costs, issued by the clerk of the Supreme Court in his own name, under the state of facts recited in the opinion of the court.

Tried before the Hon. M. J. Sake old. This action was brought by David L. James, an infant, who sued by his next friend, A. J. James, a-gainst E. S. Rawles, to recover a mule, with damages for its detention, and was commenced in a Justice’s Court.

Heard before the Hon. B. B. McCkaw. The record in this case, and all the papers except the opinion of the court, have been lost or mislaid.

<p>Appeal from the Probate Court of Conecuh.</p>

<p> Action against Executors on Common Counts. </p> <p>1. Entries in book kept by deceased party. — In an action against executors, to recover the value of goods and chattels belonging to plaintiff, which were received and sold by their testator in his lifetime, entries in a memorandum book kept by him are not competent evidence for the defendants, unless they are shown to contain the registration of some fact which is relevant to the issues on trial, and to have been made by him in the course of his business or duty, as to which, if living, he would be competent to testify.</p> <p>2. Competency of parties as witnesses, in suits against executors. — An executor, when sued in his representative character, may testify in his own behalf, as to admissions made by the plaintiff since the testator’s death ; the statute (Rev. Code, § 2704) only renders him incompetent to testify “ as to any transaction with or statement by the testator.”</p>

' Appeal from the Chancery Court at Mobile. Heard before the Hon. Adam C. Felder.

<p>Appeal from the Circuit Court of Pike.</p> <p>Tried before the Hon. J. McCaleb Wiley.</p>

<p> Bill in Equity, by Principal against Agent, for Account. </p> <p>Liability of agent for debt collected in Confederate treasury notes. — Where an agent, having very general powers' to transact the business of his non-resident principal in respect to certain property in this State, received Confederate States treasury notes, in April, 1862, from a solvent debtor, in payment of a debt created prior to 1861, and informed his principal of the fact; and the principal, in reply, without expressing assent or dissent, instructed him not to receive any more such funds in payment of debts created befpre the war; and the agent then deposited the notes with an insurance company, where they remained until they became worthless; held, on bill for account by the principal, that the agent must bear the loss, as he showed no necessity for his receipt of the treasury notes, and no effort on his part to make a better disposition of them.</p>

• Appeal from the Circuit Court of Henry. Tried before the Hon. J. McCaleb Wiley. This action was brought by Lazarus Goolsbee (and on his death, pending the suit, was revived in the name of J. A. Corbett, as his administrator) against William Barnett, to recover the possession of a tract of land; and S. M. Fordham was made a party defendant, at his own instance, as the landlord of said Barnett.

<p> Action for Damages for Personal Injuries. </p> <p>X. Limitation of suit or claim for damages against railroad company. — The limitation of sixty days, within which claims for damages against railroad companies must be.presented or sued on (Rev. Code, § 1401) does not apply to injuries to the person : as to such claims, the statutory limitation of an action [Rev. Code, § 2905) is one year.</p> <p>2. Revised Code; how far law. — When sections of the Revised Code differ, in meaning or substance from the statutes which purport to be incorporated therein, the original statute is the law.</p> <p>Note by Reporter. — On a subsequent day of the term, in response to an application for a rehearing, made by the appellee’s counsel, the following opinion was delivered: —</p>

<p> Action on Promissory Note. </p> <p>1. Filing claim against insolvent estate. — A claim against a decedent’s estate, on which a suit is pending when the estate is declared insolvent, is not required to be filed as a claim against the insolvent estate, but the declaration of insolvency should be specially pleaded (Rev. Code, §§ 2208-9), and the judgment, if for the plaintiff, should be certified to the Probate Court.</p> <p>2. Transfer of note pending suit. — The transfer of a note on which a suit is pending is not good matter for a plea in abatement or in bar, but should be pleaded puis darrein continuance.</p> <p>8. Costs on plea since last continuance. — On verdict for the defendant, under issue joined on a plea which is only good as a plea puis darrein continuance, the defendant is only entitled to judgment for the costs which have accrued since the plea was interposed.</p>

<p>Appeal from the Circuit Court of Chambers.</p> <p>Tried before the Hon. L. B. Strange.</p>

<p>Appeal from tbe City Court of Eufaula.</p> <p>Tried before the Hon. E. M. Keils.</p>

<p>Action against Agricultural Association, to recover Prize offered to Successful Rider at Tournament.</p> <p>X. Award of judges or arbitrators of public contest of shill in riding. — Ata tournament, or public contest of skill in riding, held by an agricultural association during one of its fairs, the judges being appointed by the association, and having to decide upon information given to them by heralds specially appointed for that purpose, their decision is in the nature of an award at common law, and governed by the same rules as to setting it aside ; on complaint being presently made against it, they may review and reconsider it, and make another and different decision, at any time before their duties can be reasonably said to have terminated ; but they are not at liberty, in making their award (nor is the court in an action against the association founded on the award), to receive the testimony of any other witnesses than the heralds, who were specially charged with the duty of ascertaining and reporting the facts to the judges.</p> <p>2. Error without injury. — When the judgment cannot be different on another trial, the appellate court will not reverse on account of errors committed by the court below.'</p>

<p> Action of Debt on Judgment. </p> <p>1. Admissibility of judgment as evidence. — In an action ón a judgment, brought by the plaintiff therein for the use of another person as administrator, the only issue being the ownership of the judgment by the beneficial plaintiff, the judgment itself, though in favor of the plaintiff individually, is competent evidence; and the record of his final settlement as administrator, showing that “ he had the benefit of the note which was the basis of said judgment,” is also competent and admissible evidence.</p> <p>2. Assignment of judgment. — Judgments are assignable, and the assignee may show his title, though it seem to contradict the recitals of the record.</p> <p>3. Conclusiveness of judgment. —In an action on a judgment, its validity cannot be impeached by showing that the note on which it was founded was given for a loan of Confederate treasury notes.</p>

Tried before the Hon. J. McCaleb Wiley. The complaint in this case was in the following words : — “ The plaintiff claims of the defendants the sum of fifteen hundred dollars, as damages for the failure to comply with the following special contract, which was entered [into] in writing by the defendants with plaintiff, on the 28d day of October, 1865, to wit: The defendants, for a valuable consideration, promised to deliver to plaintiff, in the city of Eufaula, County of…

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

<p>Appeal from the Chancery Court of Dale.</p> <p>Heard before the Hon. B. B. McCraw.</p>

<p>Appeal from the Circuit Court of Etowah.</p> <p>Tried before the Hon. Vi. L. Whitlock.</p>

Heard before the Hon. Adam C. Fbldek. The bill in this case was filed on the 28th day of July, 1869, by Mrs. Martha A. Shearer against Peter Horta, Francis Masieh, and David Jackson ; and sought to enforce a vendor’s lien on a certain tract of land, for the unpaid balance of the purchase money.

Tried before the Hon. John Elliott. This action was brought by Geo. W. Tarleton against the Southern Bank of Alabama; was founded on a bill of exchange for $11,000, drawn by said defendant at Mobile, on the 26th August, 1862, on the Louisiana State Bank at New Orleans, payable on demand, in currency, to the order of A. Batre, by whom it was indorsed to the plaintiff, and was commenced on the 23d March, 1868.

<p>Appeal from the Circuit Court of Elmore.</p> <p>Tried before the Pión. James Q. Smith.</p>

<p> Settlement of Guardian’s Accounts. </p> <p>1. Citation to guardian, and proceedings preliminary to settlement. — In a proceeding to compel the final settlement of a guardian’s accounts (Rev. Code, §§ 2448-9, 2153-5), the citation should show to him that a final settlement is contemplated ; if he fails to appear, and the citation ,is proved to have been duly served on him, the court may proceed to state an ex parte account against him ; after which, another citation should be issued and served, notifying him that the account has been so stated, and of the day on which the court will proceed to act on it; and on the day so appointed, if he again fails to appear, and the second citation is shown to have been duly served, the court may proceed to render a decree in accordance with the account as stated; but the decree must be rendered on the day specified in the citation, or the cause must be shown to have been regularly continued from that day to a subsequent day.</p> <p>2. Liability of guardian for compound interest. — A guardian is not chargeable with compound interest on funds received by him, unless he is shown to have been guilty of such gross neglect as is evidence of fraud; and the mere omission to make annual settlements is not such neglect.</p>

Tried before the Hon. Wi. L. Whitlock. This action was brought by Ira Webb against’the appellant, to recover damages for the loss of a horse and mule which were run over and killed by the defendant’s locomotive or cars. The complaint was in trespass. The defendant demurred to the complaint, on the ground that the action should have been case instead of trespass; but the demurrer was overruled.

Tried before the Hon. James S. Clark. Tbe material facts of this case are thus stated in the opinion of the court, by Peters, J. : “ This is an action in our statutory form, founded on a bill of exchange, brought by the holders and owners, against the indorser.

<p> Trover for Conversion of Corn, Cotton, $¡c. </p> <p>1. Transfer of claim in suit. —In trover for the conversion of personal property, the transfer by the plaintiff, pending the suit, of “ the claim upon which the suit is founded,” is no defence to the action.</p> <p>2. 'Tenancy in common; conversion, -r- When crops produced on land are to be divided between landlord and tenant, or between employer and laborers, the parties are tenants in common; the possession of one is the possession of the other, and a sale of the entire property by the party actually in possession is a conversion for which the other may maintain trover.</p>

Tried before the Hon. M. J. Saeeold. This action was brought by the appellants (twenty-three in number) against H. H. Happle, Daniel T. Webster, and H. F. Wilson, to recover damages for the conversion of the plaintiffs’ interest in certain bales of cotton.

<p>Appeal from the Chancery Court at Montgomery.</p> <p>Heard before the Hon. Adam C. Feldeb.</p>

Heard before the Hon. Charles Turner. — 1. The Tallassee Manufacturing Company, Number One, had been in operation for several years when the Revenue Law of 1868 was passed, but had never been completed according to its original design; and it was engaged, at the very time that law was passed, in adding new machinery, and erecting new buildings for its accommodation, in furtherance of said original design.

Tried before the Hon. M. J. Saeeold. This action was brought by the appellant, who was a nonresident ; and the cause was struck from the docket by the court, on motion, because security for the costs was not given at the commencement of the suit.

<p>Appeal from the Chancery Court of Madison.</p> <p>Heard before the Hon. William Skinner.</p>

Tried before the Hon. John Elliott. The facts of this case were thus stated in the opinion of the court by B. F. Saeeold, J.: “ The… Held: 1st, that the letters of October 29, 1866, and January 3, 1867, were not such letters of credit as authorized the plaintiffs to sue in their own names for a breach of promise in not accepting the bill of exchange; and, 2d, that the bill being general, and drawn on no particular fund, created no lien on the one hundred and thirty-five…

<p> Action for Damages for Unlawful Detention of Land. </p> <p>Judgment in unlawful detainer; not conclusive as .to damages. — A judgment recovered before a justice of the peace, in an action of unlawful detainer (Rev. Code, §§ 3305, 3311-12), is not a bar to a subsequent action for damages sustained either before or after its rendition, which were not in fact recovered by it.</p>

In the matter of tbe probate of the last will and testament of William M. Bell, deceased, wbicb was propounded for probate by James H. Bell, Middleton R. Bell, John H. Bell, and Gaston Bell, who were sons of said decedent, and contested by John P. Barker and Jeremiah Smith and their respective wives, who were daughters of said decedent. The grounds on which the probate of said will was contested are thus stated in the record: “ 1.

Tried before the Hon. L. B. Strange. — 1. Evidence of the plaintiff’s pecuniary circumstances was irrelevant. Groldsmith, Forcheimer Go. v. Picard, 27 Ala. 142. 2. Counsel fees in this 'suit constitute no part of the plaintiff’s damages. Sedgwick on Damages, 99; 21 Pick. 378; 2 Mete. 229; 23 Wendell, 425. They are more remote than counsel fees^ on appeal in the original attachment suit, which cannot be recovered. Ferguson &■ Scott v. Baber's Adm'rs, 24 Ala. 402. — 1.

Heard before the Hon. Charles Turner. The bill in this case was filed on the 5th August, 1867, by John D. Ragland against John E. Cantrell, Anderson J. Pool, and John T. Shropshire; and sought to enjoin a sale of certain lands, under execution issued on a judgment in favor of said Cantrell against said A. J. Pool. Cantrell’s judgment against Pool, which was for upwards of $47,000, was rendered by confession, at the Fall Term, 1865, of the Circuit Court of Perry.

<p> Action on Promissory Note, ly Payee’s Administrator against Maher. </p> <p>Confederate currency, as consideration of note. — A promissory note, given for a loan of Confederate currency, which was advanced to the borrower through the medium of a bank check, is without consideration.</p>

Tried before the Hon. P. O. Harper. This action was brought by John Ashcraft, against the appellant, as a common carrier, to recover damages for personal injuries sustained by the plaintiff, through the alleged negligence and carelessness of the defendant’s servants, while he was being transported as a passenger on the defendant’s cars between Greenville and Montgomery.

<p> Action for Recovery of Tohe of Oxen, commenced in Justice’s Court. </p> <p>1. Jurisdiction of justice. — On appeal from the judgment oLa justice of the peace in an action for the recovery of personal property in specie, the value of the property not being alleged in the complaint, the jurisdiction of the justice is not determined by the amount of the recovery before him.</p> <p>2. Amendment of complaint. — In such case, if the complaint in the Circuit Court alleges a value greater than the sum of which a justice has jurisdiction, it may be amended by substituting a smaller amount.</p>

<p> Action for Price of Goods sold and delivered. </p> <p>Inability of merchant for goods received in excess of order. — Where a merchant orders goods by letter, and receives in reply other goods also, in excess of the order; and, in a letter remitting the price of the goods ordered, he adds these words, “ Balance of goods shipped me were not ordered. You will please have patience until they are sold, or they are subject to your order, if you prefer it,” — this does not show an absolute promise to pay for the said goods; nor can his liability to pay for them be inferred, as matter of law, from his retention of them for several years, without any proof that he sold them. His liability, under such circumstances, is a question for the jury.</p>

Tried before the Hon. Geo. H. Craig. The indictment in this case was in the following words : — “ The-grand jury of said county charge that, before the finding of this indictment, one J. Sheppherd Diggs was the solic-. itor of Dallas County, duly appointed and qualified to perform all the duties of said office, and duly assigned to attend before the grand jury of said county, to examine witnesses brought before such grand jury, and to give to such grand jury legal advice as…

Fbom the Circuit Court of Barbour. Tried before the Hon. J. McCaleb Wiley.

<p> Indictment for Grand Larceny. </p> <p>1. What is hearsay. — When a witness details facts as seen and heard by himself, including in his statement remarks made by himself to the defendant, this is not hearsay.</p> <p>2. Charge as to conflict in evidence. — Where there is “ a great deal of conflict in the evidence,” the court may so instruct the jury; and where such a charge is given, the appellate court will presume that the facts justified it, unless the bill of exceptions negatives that presumption.</p>

From the City Court of Mobile. Tried before the Hon. C. F. Moulton. The indictment in this case, which was found at the February Term, 1873, of said City Court, contained two counts. The first count charged that the defendant, with intent to defraud, “ did falsely pretend to Thomas P. Miller, of the firm of Thomas P. Miller & Co. (composed of Thomas P. Miller, Rudolphus D. Williams, James C. Reynolds, and Jno.

<p>Appeal from the Criminal Court of Dallas.</p> <p>Tried before the Hon. Geo. H. Craig.</p>

The record does not show the name of the presiding judge. This action was brought by Wm. J. Squires against the mayor, aldermen, and common council of the city of Mobile, to recover the amount of the plaintiff’s salary, as the city engineer of Mobile, for the year commencing on the 1st day of January, 1871.

<p> Indictment for retailing Spirituous Liquors. </p> <p>1. Constitutionality of prohibitory liquor law. — Held, on the authority of Dorman v. The State (34 Ala. 216), that the 4th section of the act incorporating the “Tallassee Manufacturing Company Number One,” which prohibits the sale of spirituous liquors within four miles of the factory erected by said corporation (Sess. Acts 1851-2, pp. 262-3), is not violative of any constitutional provision, State or federal.</p> <p>2. County retail license not operative within special prohibited limits. — A general license to retail spirituous liquors within the county does not authorize the sale of such liquors within the area covered by a special prohibitory law.</p>

From tbe Circuit Court of -Chambers. Tried before the Hon. L. B. Strange.

Tried before the Hon. James Q. Smith. The appellant in this case was charged with the violation of an ordinance of the city of Mobile, prohibiting the retailing of spirituous liquors within the city limits without a license from the city authorities, and was found guilty by the mayor.

<p>From the Circuit Court of Geneva.</p> <p>Tried before the Hon. P. O. Harper.</p>

<p> Indictment for Trespass after Warning. </p> <p>1. Indictment; statement of term at which found. — The failure of an indictment to specify on its face the term at which it was found, is not good matter of demurrer, when the defect is supplied by the caption prefixed to the record.</p> <p>2. Joinder of offences in indictment. — Unlawfully breaking a fence or inclosure (Rev. Code, § 3735), and trespass after warning (lb. §3556), may be joined, in different counts, in one indictment.</p> <p>3. Presumptioh of dedication of land to public use. — The presumption of the dedication of land to the public depends more on the owner’s assent than on the length of time the user has continued; and where the owner has frequently asserted his rights against the public, during a long continuance of the user, the court may properly refuse to instruct the jury that twenty-five years uninterrupted use of the land as a public thoroughfare amounted to a dedication.</p>

From the City Court of Mobile. Tried before the Hon. C. F. Moulton.

From the Circuit Court of Bullock; Tried before the Hon. J. McCaleb Wiley. In this case there is no bill of exceptions, no writ of error, and no assignment of errors on the record.

<p>Indictment for Burglary.</p> <p>1. Sufficiency of indictment. —In an indictment for burglary with intent to steal (Kev. Code, § 3695), an additional averment of the consummation of the intent, by stealing articles of inconsiderable value, does not render the indictment demurrable for a misjoinder of offences.</p> <p>2. Change of venue. — An application for a change of venue, made after the lapse of two terms of the court, and after the jury had been empanelled, and the witnesses sworn, held to have been properly refused, no excuse for the delay being shown.</p>

Application by Scott Hendree and Morris Graham for a mandamus, or other remedial writ, to the Circuit Court of Dallas (Hon. M. J. Saffold presiding), to compel that court to set aside a judgment rendered at its October Term, 1872, dismissing a suit brought by said petitioners against John B. Phillips, and to restore the said cause to the trial docket.

The record does not sbow the name of the presiding judge. This case was submitted to the decision of the court below, without the intervention of a jury, on the following “ agreed statement of facts: ”— “ 1.

<p>From the City Court of Mobile.</p> <p>Tried before the Hon. C. F. Moulton.</p>

From the Circuit Court of Blount. Tried before the Hon. William: J. Haralson. The prisoner in this case was indicted in September, 1870, for the murder of Pickens Musgrove; pleaded not guilty to the indictment; was tried at the March Term, 1873, convicted of murder in the second degree, and sentenced to the penitentiary for ten years.

The record does not show the name of the presiding judge. The principal facts of this ease are stated in the opinion of the court. It should be added, however, that the respondent, in his answer to the information, in setting out the several laws relating to the office of tax assessor of Mobile County, on which he based his claim to said office, expressly cited and relied on the act adopting the Revised Code, and section ten of said Revised Code.

Tried before the Hon. Geo. H. Craig. The following are the assignments of error in this case : — “ 1. The bail-bond was not executed according to law, and the judgment thereon is erroneous. •“ 2. The bail-bond was not signed by the principal defendant, nor was it attested by witnesses, and the judgment thereon is error. “ 3.

From the Circuit Court of Bussell. Tried before the Hon. L. B. Strange. The indictment in this case, which was found at the November Term, 1872, charged, that “ Russell King, Joe Hurt, Luke Hurt, Orran (or Orange) Hurt, Jeff.

L. R. Smith presiding), to compel that court “ to set aside and vacate the order made on the 3d day of the special Fall Term in December, 1872, allowing tbe petition of R. A. Morgan, for a rehearing and supersedeas, to be amended as asked for; and also the order overruling the motion of this petitioner, Mrs. Anna North, to dismiss said Morgan’s motion to amend; and also tbe order granting a rebearing in the said suit, wherein the said Anna North was plaintiff, and tbe said…

<p>From the City Court of Eufaula.</p> <p>Tried before the Hon. E. M. Keils.</p>

From tbe City Court of Mobile. Tried before the Hon. C. F. Moulton. The prisoner in this case was indicted at the February Term, 1872, of said City Court, jointly with one Wash Harris,'for the murder of George James; was arraigned, tried, and convicted at a special term held in March, 1872; but the judgment of conviction was set aside by this court, and the cause remanded at its June Term, 1872. See the case reported in 48 Ala. 170-4.

From the Quarter Sessions Court of Wilcox. Tried before the Hon. T. W. Price. The prisoner in this case was indicted for an assault on Edmund Sellers, with intent to murder him, and pleaded not guilty to the indictment.

<p>Indictment for Buying Lottery Ticket without a License.</p> <p>Buying lottery ticket without license; what constitutes offence. —* Under the act “ to regulate the buying of lottery tickets in this State” (Sess. Acts 1871-2, p. 54), which requires the purchaser of any ticket or certificate “ to play at^ roulette table, or any other game of chance now legalized by the charters of certain associations in this State,” to procure a license for the same, a conviction cannot be had, on proof that the prisoner bought a ticket in the “ Mobile Charitable Association ” since the repeal of its charter.</p>

From the City Court of Mobile. Tried before the Hon. C. F. Moulton.

From the Circuit Court of Henry. Tried before the Hon. J. McCaleb Wiley.

<p>Appeal from the Circuit Court of Tuscaloosa.</p> <p>Tried before the Hon. B. B. Lewis, an attorney of the court, in consequence of the incompetency of the presiding judge.</p>

<p>Application for Mandamus to Chancery Court, to vacate Order Reviving Cause.</p> <p>Revivor of suits in equity ; limitation of — On the death of any of the original parties to a pending suit in chancery, that court has authority to permit a revivor of the suit, independent of the statutes regulating the revivor of actions at law; and the limitation of such revivor is rather governed by the statutes prescribing the time within which suits must be brought, than by the statute (Eev. Code, § 2542) prescribing the period within which actions at law must be revived.</p>

Heard before the Hon. Adam C. Felder. The bill in this case was filed by the appellant, a corporation doing business as a common carrier, whose principal place of business was alleged to be in Augusta, Georgia; and sought to enjoin the collection of a license, or tax, which the defendants, the corporate authorities of the city of Mobile, were demanding and attempting to collect, under the second section of an ordinance passed on the 2d March, 1866, which was in these words:…

In the matter of the estate of Daniel B. Turner, deceased, which was regularly declared insolvent on the 28th July, 1869; and against which, on the 4th February, 1870, Mrs. Martha L. Patton, the appellee, filed two claims, which are thus described in the bill of exceptions: “ One, founded on a bill of exchange for $11,614 ', dated May 29, 1861, payable twelve months after date, to said Daniel B. Turner, and indorsed by him and Joseph C. Bradley, drawn in Huntsville, Alabama,…

<p> Action on Common Counts. </p> <p>1. Writ of inquiry ; what evidence is admissible for defendant, on execution of — On the execution of a writ of inquiry, after judgment by default or nil dicit, the defendant cannot adduce evidence which tends to show that he is not liable at all, or that judgment ought not to have been rendered against him.</p> <p>2. Amendment of judgment nunc pro tunc. — An order of court, or minute-entry, in these words, “ Continued on payment of all the costs in sixty days, otherwise the case is dismissed,” cannot be amended at a subsequent term, nunc pro tunc, so as to make it show that the continuance was granted to the defendant on the condition that, if the costs were not paid within the specified time, judgment should go against him, unless there is sufficient record evidence to authorize the amendment.</p> <p>3. Conditional continuance. — When a continuance is granted, on the application of the defendant, on condition that, if the costs are not paid within a specified time, judgment shall go against him, his acceptance of the terms makes it a valid agreement of record; but the court is not bound to enforce it, and cannot impose such terms at the trial, without the defendant’s consent.</p> <p>4. Deposition; amendment of commissioner’s certificate. — The certificate of the commissioner, appended to a deposition, may be amended by him at the trial, by adding the statements, that he is not related to either of the parties, and that the witness is personally known to him.</p>

<p>Appeal from the Circuit Court of Crenshaw.</p> <p>Tried before the Hon. P. O. Harper.</p>

Appeal fr.om the Chancery Court of Autauga. Heard before the Hon. Charles Turner. This is the same case which is reported in 44th Ala. 686-90, under the name of Wood et al., administrators, v. Sullens et al. The bill was filed by Philip A. Wood and John A. Wood, as administrators de bonis non of the estate of Richard Morton (not Martin, as the name appears in the former report), deceased, against James A. Sullens and Reuben Underwood.

Tried before the Hon. James S. Clark. This action was brought by the appellants, suing as partners, against Robert M. Patton, to recover the price of goods, wares, and merchandise, sold and delivered by the plaintiffs to the defendant, in October, 1861. The complaint contained only the common counts.

<p>Appeal from tbe Chancery Court of Dallas.</p> <p>Heard before the Hon. Charles Turner.</p>

<p>Appeal from the Circuit Court of Mobile.</p> <p>Tried before the Hon. J. Q. Smith.</p>

In the matter of the estate of Lawrence Williams, deceased, on the application of Thomas C. Clark, the administrator with the will annexed, to sell certain lands which said decedent had devised to the appellants, for the purpose of paying the outstanding debts of the estate. The material facts are stated in the opinion of the court.

Application by Paul Strobach, sheriff of Montgomery County, for a writ of certiorari, or other remedial writ, directed to the Circuit Court of Montgomery County (Hon. J. Q. Smith presiding), to bring up and annul an order, made and entered by said presiding judge on the minutes of said court, in these words: — “ In the matter of the employment of bailiffs in the Circuit Court of Montgomery County.

Tried before the Hon. Charles Pelham. This action was brought by Mrs. Tempy Clements ag'ainst William Lyles, and was commenced by attachment, sued out before a justice of the peace. Held: and still holds, in her separate right under the’ laws of this State, which rent accrued since the marriage; ” 2d, payment; and 8d, set-off. ' The plaintiff demurred to the first plea, and the court sustained the demurrer.

<p>Appeal from the Chancery Court of Marengo.</p> <p>Heard before the Hon. A. W. Dillabd.</p>

This was an application for a sale of lands for partition or division among tenants in common, under sections 3120-26 of the Revised Code, on the ground that the land could not be equitably divided among them without a sale. The petition was filed by James T. Fennell and Edward Fennell, against William J. Tucker and his wife, Mrs. Margaret E. Tucker, and Sallie Fennell, an infant.

Tried before the Hon. M. J. SAEEOLD. This was a motion by Powhatan Lockett, as the administrator de bonis non of the estate of Jesse B. Nave, deceased, to set aside a sale of certain lands belonging to said estate, which had been made by the sheriff of said county under execution from said Circuit Court. The sale was made on the 1st Monday in March, 1869. The motion to set it aside was made at the September Term of the court, 1870.

Tried before the Hon. John Elliott. This action was brought by the appellants, suing as partners, against P. A. Grady and Jno. J. Moulton, and was discontinued as to said Moulton, who was not served with process.

Heard before the Hon. Adam C. Felder. The facts of tbis case were thus stated by Peters, C. J.: — “ This is a suit in chancery to set aside a judgment at law and permit a rehearing, on the ground that the promissory note, on which the judgment is founded, was without legal consideration, and void, as against the public policy. The record shows that one Raley was a clerk in the post-office at Montgomery, Alabama, in 1868; and that Bibb, the appellant, was the postmaster.

Tried before the Hon. James Q. Smith. This was a contest between Charles H. Scott and Paul Strobach, as to the right to the office of sheriff of said county. At the general election held in November, 1871, Strobach received the largest number of votes, as shown by the official returns filed in the office of the secretary of state, and he received the governor’s commission.

Tried before the Hon. John Elliott. This action was brought by Isabella P. Stewart and Wesley, W. McGuire (the latter suing as the administrator of the… Held: it is “ from henceforward and forever, without being liable to be troubled or disturbed in the peaceable possession thereof.” There is no element of a contract in the grant, nor is it conditional. What is said in it about raising cattle on the island cannot be construed as a condition, either precedent or subsequent.

From the Circuit Court of Lowndes. Tried before the Hon. Jambs Q. Smith.

<p>Appeal from the Circuit Court of Butler.</p> <p>Tried before the Hon. E. O. Harper.</p>

Tried before the Hon. P. O. Habper. This action was brought by John D. Jay, in his own right, and as next friend of his infant sister, Elizabeth E. Jay, against James Stein, Larkin W. Lindsey, and George W. Riley ; and was commenced on the 11th September, 1868. At the Spring Term, 1871, the death of said Lindsey was suggested, and a sci.fa. was ordered to issue to his personal representatives. At the Spring Termj 1872, Geo.

Heard before the Hon. Adam C. Felder. The bill in this case was filed on the 2d December, 1869, by R. M. Williamson, against Benjamin Trimble, and sought a redemption, under the statute, of certain lands which had been sold under execution against Thomas J. and Thweat E. Mitchell, and purchased at said sale by said Trimble. The sale under execution was made on the 2d day of December, 1867, and the price paid by the purchaser was one hundred and forty dollars.

Tried before the Hon. C. F. Moulton. This action was brought by Mrs. Julia Huth, the widow of Francis A. Huth, deceased, against the appellant, a corporation chartered under the laws of Missouri; was founded on a jDolicy of insurance for $3,000, which the deceased had effected on his own life, in favor of his widow, with said corporation; and was commenced on the 21st day of March, 1872. The policy was dated on the 1st June, 1870.

Heard before the Hon. A. W. Dtllabd. The bill in this case was filed on the 15th day of August, 1867, by Carter, Kirtland & Co., and Tracy, Irwin & Co., the appellants, as creditors of Philip Happel, against said Philip Happel, Henry H. Happel, his son, William N. Knight, his son-in-law, and Ephraim Knight, the father of said William N. Knight; and sought to set aside, on the ground of fraud, certain conveyances of real estate, made by said Philip Happel to the other…

The record in this case having been lost or mislaid, tbe name of the presiding judge in the court below cannot be stated.

Tried before the Hon. James Q. Smith. This was an application by E. C. McWilliams, for a writ of mandamus to R. M. Reynolds, state auditor, to compel that officer to audit the accounts of the petitioner, as sheriff of Wilcox County, for feeding prisoners and conveying convicts to the penitentiary.

Heard before the Hon. Adam C. Felder. The appellant was incorporated by act of the legislature of this State, approved February 6, 1866 ; the 5th and 12th sections of said act of incorporation being in the following words: — “ Sec. 5. lie it further enacted, That each and every subscriber to the stock of said company shall, at the time of subscription, pay to the person or persons receiving the subscriptions for the company ten per cent, upon the amount subscribed for by him…

<p> Bill in Equity to enforce Vendor’s Lien for Unpaid Purchase Money of Land. </p> <p>1. Vendor’s lien ; sufficiency of bill to enforce. — A bill to enforce a vendor’s lien for the unpaid purchase money of land, which shows a sale of the land, payment of a part of the purchase money only, a willingness on the part of the vendor to make title on payment of the balance due, and that the vendor’s lien has not been lost or waived, is not wanting in equity.</p> <p>2. Foot note to bill. — When a bill is divided into sections or paragraphs, which are numbered consecutively, and the foot note requires the defendant “to answer all the statements of the above bill,” this is a substantial compliance with the 10th rule of chancery practice.</p> <p>3. Blanks in bill. —Under the 9 th rule of chancery practice, bills which contain blanks are defective, and may be ordered to be taken from the files; but such defects are not causes of demurrer, unless they relate to matters of substance.</p> <p>i. Prayer for process. — When the prayer of the bill asks that the defendant “ be made a party defendant to this bill,” it is not necessary also to ask that a subpoena be issued to him. It is the duty of the register to issue a subpoena on the filing of the bill.</p> <p>5. Averment of seisin and title. — Where the vendor’s bill alleges that he “ was seized and possessed” of the lands sold, and that he “ is able and willing to make title to said land ” on payment of the purchase money due, this is a sufficient averment of ownership to sustain his bill.</p> <p>6. Form of decree; decree reversed and rendered. — A decree for the complainant, under a bill to enforce a vendor’s lien for the unpaid balance of the purchase money of land, should not order the entire proceeds of the sale of the lands by the register to be paid to him, but only the balance due, with interest and costs, and the residue, if any, to be paid to the defendant; but the appellate court, on reversing such a decree, will itself render the proper decree.</p>

Tried before the Hon. M. J. Saffold. The record in this case shows that, on the 27th June, 1867, an action was commenced by summons and complaint, in the City Court of Selma, at the suit of Tinchant & Brother, against James Ford individually. The complaint contained two counts: one, on an account stated; and the other, for goods sold and delivered. On the abolition of said City .Court, the causes standing on its docket were transferred to the Circuit Court of Dallas.

' Appeal from the Circuit Court of Dallas. The record does not show the name of the presiding judge. The record in this case shows that, on the 30th November, 1867, an action was commenced by original attachment, issued by the clerk of said Circuit Court, at the suit of Lee & Go. against James A. Fountain.

Heard before the Hon. Charles Turner. The bill in this case was filed on the 23d February, 1869, by Cornelius E. Thames, against the Central City Insurance Company, Henry A. Stollenwerck, its president, and William White, its secretary; and sought a decree restoring and reinstating the complainant as a stockholder in said company.

Tried before tbe Hon. James Q. Smith. This action was brought by Mrs. Louisa J. Warren, as the administratrix of the estate of her deceased husband, James F. Warren, to recover damages for the wrongful act which caused the death of her said husband, who was killed on the 9th day of September, 1868, while travelling as a passenger on the Mobile and Great Northern Railroad Company, and whose death was alleged to have been caused by the negligence or other wrongful act of an…

Tried before the Hon. James S. Clark. This action was brought by the administrator of William Sugg, deceased, against the administratrix of Isaac Winston, deceased; was commenced on the 81st September, 1867, and was founded on a promissory note, of which the following is a copy: — “ 1225.75. Tuscumbia, Ala., Jan. 2, 1860. “ One day from date, for value received, I promise to pay Peet & Winston two hundred and twenty-five dollars. Witness my hand and seal.

<p>Appeal from Chancery Court of Bullock.</p> <p>Heard before the Hon. B. B. McCraw.</p>

<p>Appeal from the Circuit Court of Randolph.</p> <p>Tried before the Hon. Charles Pelham.</p>

<p> Bill in Equity to set aside Sale of Decedent’s Lands under Prolate Decree, or have Lands resold for Payment of Purchase Money. </p> <p>1. Plea of res adjudícala, as defence in equity. — Generally, equity will not assume jurisdiction, in favor of parties who have had an opportunity of asserting their rights in another court, where the matter was properly the subject of adjudication.</p> <p>2. Sale of decedent’s lands for payment of debts; jurisdiction of court, and irregularities in proceedings. —Held, on the authority of Satcher v. Satcher’s Adm’r (41 Ala. 26), that where a petition for the sale of a decedent’s lands is filed in the Probate Court by the administrator, alleging a statutory ground of sale, and the order of sale recites that the allegations of the petition were proved by depositions taken as in chancery cases, the order of sale and the sale cannot be declared void on account of any defects or irregularities in the proceedings.</p> <p>3. Confederate judgments and decrees. — Where the sale and conveyance of a decedent’s lands, under orders of the Probate Court, were made and completed in 1863, the insurrectionary character of that court at the time cannot, of itself, be held to vitiate the proceedings.</p> <p>4. Cpnfederate currency as payment of purchase money for land sold under probate decree in 1863. — Where a decedent’s lands were regularly sold under a probate decree in 1863, and a conveyance executed to the purchaser, who paid the purchase money presently in Confederate treasury notes, which were applied in payment of the widow’s dower interest, and in part satisfaction of a mortgage on the lands, due in February, 1861 ; and these payments were so made in pursuance of a verbal agreement, entered into before the sale, between the administrator, the mortgagee, the widow, and the purchaser, — equity will not now disturb the transaction, at the suit of the administrator de bonis non and the heirs-at-law, since substantial justice has been done.</p>

In the matter of the estate of Alphonso L. Payne, deceased, which was reported insolvent by the appellant, who was the “administrator in chief, on the 1st March, 1871; and the report contested by the appellees, who were creditors of the estate. An issue was formed between the parties, and submitted to the court without the intervention of a jury. The appellant’s letters of administration were granted on the 18th October, 1865.

<p> Application for Sale of Decedents Lands for Distribution. </p> <p>1. Sale of lands for distribution ; plea denying ownership of lands. — In a proceeding for the sale of a decedent’s lands for distribution, where the petition alleges his interest in the lands to be two thirds, a plea, or objection, by one of the defendants, asserting his interest to be one third only, is a good plea in bar to the extent to which it goes, and should he allowed, if proved, since the court has no jurisdiction to sell a greater interest than the decedent owned.</p> <p>2. Same; statement of distributees’ names in petition. — Where the petition describes a minor child, one of the heirs or distributees, as “ Matilda Gravitt’s child, whose name is unknown,” this is not a sufficient compliance with the statutory requisition (Bev. Code, § 2222): the name must be stated, or it must appear that it lias no name.</p> <p>3. Proof of seizin. — Seizin of lands, when the word is used to signify possession merely, may he proved by parol; but, when used to signify possession under legal title, it can only be proved by proper conveyances.</p>