Volume 50 — Alabama Reports

<p> Action against Husband and Wife for Necessary Family Supplies. </p> <p>1. Amendment of judgment nunc pro tunc; return to certiorari. — When a judgment is amended nunc pro tunc, pending an appeal, the amendment is properly included in the return to a certiorariI afterwards granted.</p> <p>2. Judgment for greater sum. than claimed in complaint. — Where the judgment is by default, with writ of inquiry ; and the verdict of the jury, on the execution of the writ, is for a greater amount than the sum claimed in the complaint, with interest thereon, — this is not a matter which is available on error.</p>

<p> Bill in Equity to enforce Vendor’s Lien for Purchase' Money of Land;. Cross-bill by Wife, claiming Statutory Separate: Ektate.. </p> <p>1. When conveyance of lands will relate back; relinquishment:of dower between dates of contract and conveyance. — Where the vendor of lands receives payment of. the purchase money at the time of the sale, and pnts the purchaser in possession his deed, subsequently executed, will relate back to the date of the contract; and' his wife's relinquishment of dower to the purchaser, executed during the intermediate time, will be upheld. '</p> <p>2. Purchase for valuable consideration without notice of wife’s equity. — Where the vendor of lands receives, in part payment of the purchase money, another tract of land, for which the purchaser and his wife execute a conveyance in proper form, and afterwards files his bill to enforce his lien for the unpaid balance of the purchase money, the wife of the purchaser cannot, by eross-bill, have the land so conveyed declared to be her statutory separate estate, because paid for with her money, without proving that the complainant had knowledge of her equity, or was chargeable with notice of it.</p>

Heard before the Hon. Charles Turner. The bill in this case was filed by Mrs. Sarah Womack, the widow of John H. D. Womack, deceased, and Lucy Womack, her daughter, against Richard Powers, C. C. Cleaveland, R. J. Lide, and Paul S. H. Lee; and sought to enjoin and restrain the further prosecution of an action of unlawful detainer, which said Cleaveland, Lide, and Lee had instituted before said Richard Powers, as a justice of the peace, to recover the possession of a house and…

The record does not show the name of the presiding judge. The complaint in this case was in these words: “ The plaintiffs, partners in the practice of law, claim of the defendants eight hundred dollars, due by account on the 1st day of July, 1871, for professional services as counsel rendered by plaintiffs in defending certain persons, named below, wbo were indicted, arraigned, and tried in the city court of Mobile, viz.,” setting out the names of the persons so defended,…

<p> Action on Promissory Note, by Payee against Mahers. </p> <p>Proof of partnership. — The declaration or admission of one partner, that another person is a member of the firm, is not competent evidence to prove the partnership as against the latter, when not made in his presence-</p>

Application by Robert S. Carroll and others, for a mandamus, or other remedial writ, on the facts stated in the opinion of the court.

<p> Action on Promissory Note, by Indorsee against Maker. </p> <p>Set-off. — la aa actioa oa a promissory note, by a second indorsee or transferee against the maker, a promissory note made by the plaintiff’s immediate indorser and another person, payable to a stranger, is not available to the defendant as a set-off (Rev. Code, § 2642), on proof that it was in his possession at the time the note sued on was transferred to the plaintiff.</p>

<p> Action for Work and Labor done, commenced in Justice’s Court. </p> <p>Conclusiveness of judgment, as plea of forma• recovei-y. — In an action on a simple contract, a judgment recovered by the plaintiff against the defendant in a former action, which was founded on a separate and distinct contract, is not conclusive as a plea of former recovery, because the plaintiff might have embraced in that action the demand on which his second suit is founded.</p>

• Appeal from the City Court of Montgomery. Tried before the Hon.” Jno. D. Cunningham. This action was brought by the appellees, against James Parker and his wife, Mrs. T. R. Parker, and was founded on an account for goods sold and delivered by the plaintiffs to the defendants during the year 1870, amounting to $257.84.

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

<p>Appeal froth the Circuit Court of Mobile.</p> <p>Tried before the Hon. John Elliott.</p>

Tried before the Hon. L. B. Strange. This action was brought by the appellants, suing as partners; was founded on a promissory note for $217.73, dated September 6, 1860, and payable six months after date; and was commenced on February 4, 1870.

Tried before the Hon. James S. Clark. The appellee in this case moved to strike from the record the bill of exceptions, which had been incorporated in the tran-‘ script by the clerk, on the ground that it was not signed by the presiding judge at the trial; and he also suggested to the court that the appellant had become insane since the appeal in this case was sued out, and asked that the cause might be continued until the next term, in order that proceedings might be…

<p> Trover against Common Carrier, for Conversion of Goods sold for Nonpayment of Freight. </p> <p>Sale of goods by common earner, for non-payment of freight and charges. — When goods are delivered by a common carrier at their place of destination, and are not taken out of bis custody by the consignee within sixty days, if they are of a perishable character (or ninety days, if not perishable), they may be advertised and sold by him, for non-payment of freight and charges, “ after thirty days’ notice ”, (Rev. Code, §§ 1884-85); and he is not required to wait until the expiration of the sixty or ninety days, as the case may be, before advertising the sale. (Brickell, J., dissenting.)</p>

In the matter of the insolvent estate of Jonathan McDonald, deceased, on partial settlement of the accounts of Elijah M. Hussey, the administrator de bonis non. The facts are stated in the opinion of the court as fully and clearly as they can be gathered from the record.

<p> Bill in Equity to set aside Sale under Probate Decree. </p> <p>1. Service of process. — A subpoena in a chancery cause, directed to all the defendants to the bill by name, and returned by the sheriff “ Executed on the parties, this October 1st, 1870, with copy,” shows a sufficient service.</p> <p>2. When equity vrill not set aside administrator’s sale. A sale of land by an administrator -without an order of the probate court, or under an order which is void for want of jurisdiction, is not such a cloud on the title as will justify the interference of a court of equity to set it aside.</p>

Tried before the Hon. John Elliott. cited Lamar v. Grunter, 39 Ala. 324, and cases referred to in the opinion of the court on pages 332-3. cited McKinney v. Benagh, decided at the June term, 1872, and now reported in 48 Ala. 358.

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

<p> Bill in Ghancery to set aside Fraudulent Decree foreclosing Mortgage. </p> <p>Fraudulent chancery decree. — A decree in chancery foreclosing a mortgage, if obtained by fraud, is void, and will be so declared at the instance of a party whose rights are injuriously affected by it, on bill filed to set it aside on that ground; and an asserted title, founded upon it, is also void.</p>

Heard before the Hon. B. B. MoCraw. The bill in this case was filed by Edward G. Hanrick, the •appellant, as the sole heir-at-law and distributee of Edward Hanrick, deceased, against Mrs. Mary E. Walker, and sought to enforce a vendor’s lien for the unpaid purchase-money of land, which had been sold to the said defendant by said Edward Hanrick in his lifetime. The chancellor dismissed the bill, on demurrer, for want of equity; and his decree is now assigned as error.

<p> Action for Breach of Contract for Delivery of Cotton. </p> <p>1. Motion in arrest of judgment. — A motion in arrest of judgment must be founded on matter of record; and if the complaint contains a substantial cause of action (Rev. Code, § 2811), the judgment will not be arrested on account of an irregularity which is amendable, or which has been waived by appearance.</p> <p>2. Waiver of process to revive, by appearance. — In an action on a contract against several defendants jointly bound, one of whom dies before service of process, if his personal representative appears, and proceeds to trial without objection, this is a waiver of a scire facias or motion to revive, and.is equivalent to a revivor by consent.</p> <p>3. Judgment against surviving obligors and personal representative of deceased obligor. — On the death of one of several defendants, jointly sued in an action for breach of contract (Rev. Code, §§ 2546-7), if his personal representative is regularly brought in, or appears without objection, a judgment may be rendered against him, to be levied de bonis intestatis, at the same time a judgment is rendered against the other defendants, unless it appears that eighteen months have not elapsed since the grant of his letters.</p>

The original transcript in this case contained only a bill of exceptions, and an acknowledgment of security for costs ; in each of which the cause was entitled “ TrammelVs Executors v. TrammelVs Heirs f The bill of exceptions is as follows: “ This cause originating in the final settlement of the estate of John Trammell, deceased, the following proceedings were had: The executor, William M. Trammell, asked an allowance for the following account,” &c.; setting out an account…

<p> Bill in Equity by Widow, against Alienee of Deceased Husband, to establish and protect her Separate Estate. </p> <p>1. Wife’s separate estate; how created, and when protected against husband’s creditors. — A married woman may, with the consent or approbation of her husband, acquire a separate estate in the savings of her own industry and economy, which a chancery court will protect against the subsequent creditors of her husband; and if her husband uses her separate funds, thus acquired, in the purchase of lands, taking the title to himself individually, and mortgages these lands, against her consent, to secure debts subsequently contracted by him, she may maintain a bill in chancery, after her husband's death, against the mortgagee and a purchaser at the mortgage sale.</p> <p>2. Allegations of wife’s bill, as to creation of her separate estate. —In a bill filed by a married woman or widow, seeking to establish her title to, certain real estate, which she claims as her separate estate, because purchased with funds acquired by her own industry and economy; an averment that the property “ is her separate estate ” must, on demurrer, be held equivalent to an averment that it was so acquired with the consent, concurrence, or approbation of her husband.</p>

Heard before the Hon. B. B. McCkaw. The bill in this case was filed by Mrs. Sarah E. Grace, a married woman, who sued by her nest friend, against Caleb Holloway and James A. Grace (who was the complainant’s husband) ; and sought to enjoin the execution of a writ of habere facias possessionem, then in the sheriff’s hands, which was issued on a judgment in ejectment recovered by the said Holloway against one I. N. Williams, tenant in possession, for a house and lot which the…

<p> Action to recover Price of Goods sold and delivered. </p> <p>1. Sale of goods by clerk; ratification of agent’s unauthorised act. —Where a clerk or salesman in a store sells goods, and, at the same time, agrees to take back damaged goods previously sold by him to the purchaser; and his principal, denying his authority'to make such a promise, repudiates the agreement, and notifies the purchaser that he will not take back the former goods; the bringing of a subsequent action by the principal, to recover the price of the goods last sold, is not necessarily" a ratification of the agent’s unauthorized agreement, so as to prevent the pldintiff from recovering without performing that agreement; but in such case, the authority of the agent to make the promise, and the ratification of his promise by the'principal, are both questions of fact/for the determination of the jury; and a charge which assumes that he had authority, or that there was a sufficient ratification to bind the principal, is properly refused.</p> <p>2. Jurisdiction of city court of Montgomery, and of circuit courts, in civil causes involving more than fifty and less than one hundred dollars.— In civil causes, where the amount in controversy is between fifty and one hundred dollars, the city court of Montgomery, like the circuit court, has concurrent jurisdiction with justices of the peace; which jurisdiction is derived from constitutional provisions, and is not affected by any inconsistent statutory provisions contained in the Revised Code.</p>

Heard before the Hon. Adam C. Felder. The bill in this case was filed' by Thomas B. Stallworth against Therese Blum, and was dismissed by the chancellor, on the ground that the decree which it sought to impeach and review had been affirmed by this court on appeal. The decree dismissing the bill is now assigned as error.

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

<p> Bill in Equity by Wife, to enjoin Sale of Lands under Mortgage executed by Husband and Wife. </p> <p>1. Wife’s statutory separate estate; when declared, and protected against mortgage of husband and wife. — Lands conveyed by the wife’s guardian to her husband, in satisfaction of a decree rendered against him on settlement of his guardianship, will be decreed in equity to be her statutory separate estate, and will be protected against a mortgage executed by her and her husband to one who had notice of her equitable rights.</p> <p>2. Mortgage by husband and wife, of wife’s lands ; resulting trust. — A promissory note, and a mortgage on the wife’s lands to secure it, both signed by husband and wife, and given for money advanced to them to enable them to cultivate the land, and to pay off a valid outstanding incumbrance on it, are absolutely void, as against the wife and her statutory separate estate; and the mortgagee cannot claim a resulting trust in the land to the extent of the money paid in extinguishment of the valid incumbrance, nor be subrogated to the rights of the party w held that incumbrance.</p>

<p> Action to recover Damages for Removal of Partition Pence. </p> <p>1. What witness may testify, as matter of fact. — In an action to recover damages for the removal of a partition fence, although the evidence does not show that the fence was a statutory partition fence (Rev. Code, § 1292), a witness may testify that it “ was a partition fence,” if he knows the fact that it was erected by agreement between the parties who owned the lands; and the statement is not objectionable, as a “ conclusion of law.”</p> <p>2. Ex parte survey. — A survey of a disputed line, made by any other person than the county surveyor, is not competent evidence against a party who had no notice of it, and who did not participate in making it.</p> <p>3. Damages. — In trover for the conversion of certain fence-rails, or to recover damages for the removal of a. partition fence, whereby plaintiff’s lands were left uninclosed and exposed, the defendant cannot be allowed to prove, in mitigation of damages, “that plaintiff’s premises were of small value; ” notwithstanding the plaintiff had been allowed to prove, without objection, the value of the rent of his lands.</p> <p>4. Irrelevant evidence in rebuttal of irrelevant evidence. — When irrelevant evidence has been admitted without objection, the adverse party may move to exclude it, at any time before the cause has been submitted to the jury, but he has no right to rebut it by other irrelevant evidence.</p>

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

<p> Action on Promissory Note, by Assignee against Maher. </p> <p>1. Service of summons and complaint. — The words “Beeeived in office, August 22, 1870," and “ Executed August 22, 1870," followed by the sheriff’s name and title, and copied into the transcript immediately after the summons and complaint, are sufficient, after judgment by default, to show a regular service of the summons and complaint; and if referred to the summons only, they would show a sufficient service, in the absence of objection in the primary court.</p> <p>2. Clerical mistake in calculation of interest; judgment corrected and affirmed. — On the rendition of a judgment by default, in an action on a promissory note, it is the duty of the clerk to compute the interest (Bev. Code, § 2770), allowing proper credits for partial payments made, and to enter judgment for the amount ascertained to be due; and if, by mistake, judgment is entered for a greater amount than is actually due, the judgment will be corrected on appeal, and affirmed at the costs of the defendant.</p>

<p>Appeal from the Chancery Court of Jefferson.</p> <p>Heard before the Hon. Charles Turnee.</p>

Appeal fom the Circuit Court of Montgomery. Tried before the Hon. James Q. Smith. This action was brought by the appellant, and was commenced on the 21st November, 1871.

<p>Appeal from the Circuit Court of De Kalb.</p> <p>Tried before the Hon. W. J. Haralson.</p>

<p> Motion to dismiss Appeal. </p> <p>1. Amendment of appeal, citation, frc. — Where the names of the parties to the judgment or decree appealed from are incorrectly stated in the certificate of appeal, citation, and acknowledgment of security for costs, the mistake may be amended in the appellate court (Rev. Code, §§ 4420-21), and does not furnish sufficient ground for'a dismissal of the appeal on motion.</p> <p>2. Parties to appeal. — Where an appeal is taken in the names of two joint defendants in a judgment or decree, one of whom is dead, and a motion is made to dismiss the appeal on that ground, the surviving defendant will be allowed to strike out the name of the deceased, and to assign errors and proceed in bis own name alone.</p>

<p> Action on Attachment Bond. </p> <p>1. Plea of pendency of attachment suit. — In an action on an attachment bond, the pendency of the attachment suit is not good matter for a plea, either in abatement or in bar, since the statute (Rev. Code, § 2992) authorizes the bringing of the action before the termination of the attachment suit.</p> <p>2. Agreement to cultivate land on shares. — An agreement between the owner of land and another person, 'to the effect that the latter shall cultivate the land, and shall pay to the former a specified portion of the products, although it may create a tenancy in common in the crops, is not necessarily inconsistent with the relation of landlord and tenant.</p> <p>3. Intention of parties to verbal contract. — If the intention of the parties to a verbal contract is doubtful, though there may be no conflict in the evidence, the jury must determine what the contract was.</p>

Tried before the Hon. W. H. Crenshaw. This action was brought by the appellant, against Kennon Jones and James H. Starke individually,… Held: or had deposited to his credit with Dunklin & Steiner, the sum of $756.70, money arising from the sale of a drug store and fixtures belonging to the firm of Jones & Starke, which he had sold under a mortgage against them, by agreement between the partners and their creditors, and, after paying the mortgage debt out of the proceeds,…

Heard before the Hon. B. B. McCraw. The bill in this case was filed by Jobn L. Robinson, tbe appellant, against Mrs. Julia A. Reid, as tbe executrix of John H. C. Reid, deceased; and sought to enjoin a judgment, which tbe defendant, in her representative capacity,bad recovered against tbe complainant. The judgment was rendered by nil dicit, on tbe 15th September, 1866 ; and the bill was filed on tbe 4th February, 1867.

^ Tried before the Hon. L. B. Strange. The complaint in this case was in these words: — “ Joseph D. Robinson ) Chambers County Circuit v. > Court, Fall Term, A. D. 1869.

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

Tried before the Hon. James Q. Smith. This action was brought by Francis S. Lyon, against Richard M. Robertson and John H. Prince ; was founded on a promissory note for $2,065.30, made by one R. J. Fletcher, together with said Robertson and Prince, dated May 20, 1863, and payable on or before the 14th day of May, 1864, with interest from the 14th May, 1863, to said F. S. Lyon or order; and was commenced on the 24th day of August, 1866.

Tried before the Hon. John D. Cunningham. The appellees had a judgment against W. S. Barton, and sued out a garnishment against the appellants, as the debtors of said Barton. The garnishees filed a written answer, on which the court rendered judgment final against them, for the amount of the plaintiff’s judgment and costs; and this judgment is now assigned as error.

In this case, a motion was entered on the motion docket of this court, on the 25th July, 1873, in these words : “ The said James S. Diggs moves this Honorable Supreme Court for a writ of mandamus, to be issued to the Hon. Geo.

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

<p> Garnishment on Judgment. </p> <p>When judgment cannot be rendered against garnishee on answer, without summons to third person as claimant of debt. — When a garnishee states in his answer that he purchased from the defendant his interest in a mercantile partnership, and gave his note for the agreed price, payable to said defendant as agent of his wife; and that said defendant, at the time said note was given, “ said that he owed debts, and probably judgments, and that he was operating for his wife, and wanted the contract written so that his creditors could not touch it; ” it is error to render judgment against the garnishee, for the amount of the debt thus admitted, without bringing in the defendant’s wife, and giving her an opportunity to assert her right to the note.</p>

<p> Trial of Right of Property in Cotton, between Landlord and Mortgagee for Advances. </p> <p>1. Liens of landlord and mortgagee on tenant’s crop, for advances. —A landlord’s statutory lien on the crop of his tenant, for advances made by him to aid in its cultivation (Sess. Acts 1870-71, p. 19), is superior to that of another person, to whom the tenant was indebted for advances made under a former contract, and whose lien for such advances, whether in the form of a mortgage, or a statutory note or obligation (Rev. Code, § 1858), was given after the contract of renting commenced, but before any advances were made by the landlord.</p> <p>2. Forbearance to sue for damages, or prosecute criminally, for enticing servant.— Where a landlord and another person, from whose service the tenant was enticed away by the landlord, have conflicting liens on the tenant's crop, a promise or agreement by the landlord, who has the superior lien, to subordinate his lien to that of the other, if the latter will forbear to sue him for damages for enticing away his servant, is supported by a valid and sufficient consideration; but an agreement by the latter not to prosecute the landlord criminally for having enticed away his servant would be contrary to public policy, and would not support the landlord’s promise to give priority to the latter’s lien.</p> <p>3. Parol agreement outside of written. — In a contest between the landlord and another person, as to the relative priority of their liens on the tenant’s crop, each having a written contract with the tenant, a parol agreement between themselves as to their liens, supported by a valid consideration, is outside of their written contracts with the tenant, and between different parties, and may therefore be upheld.</p> <p>4. Statute of frauds as to contract not to be performed within one year, and to answer for default of another. — A promise by the landlord, to a person from whose service he has enticed away the tenant, and to whom the tenant was then indebted for advances made under a former contract, to subordinate his lien as landlord on the tenant’s crop to the other’s statutory lien for advances, in consideration that the latter would forbear to sue him for damages, is not within the statute of frauds (Rev. Code, § 1862), unless the landlord also agreed to answer for any default of the tenant to the other.</p>

<p> Statutory Proceeding by Legatee against Executor for Payment of Legacy. </p> <p>Construction of will conferring on executor power to sell and reinvest property, as affecting vesting of legacies, and legatee’s right to recover.— Where a testator directed the whole of his property, real and persona], to he equally divided between his wife and children, and to be kept together by his executor and executrix during the widowhood of his wife, or until his children became of age or married, “and then, and not till then, dividends to take place as often as they become of age or marry; ” bequeathing to his daughters that portion of his personal property which they might “ inherit upon a dividend, to them and their heirs forever; ” and giving to his executor and executrix a discretionary power to sell any property, and reinvest the proceeds in other property, for the benefit of his wife and children; held, that the legacies to the children vested in them the absolute title, and not in the executor as trustee for them; and that the executor could not, after the death of the widow and executrix, and after the lapse of eighteen months from the grant of letters testamentary, successfully resist an application by a legatee of mature age for the recovery of her legacy, on account of said discretionary power to sell and reinvest.</p>

<p> Bill in Equity for Injunction of Proceeding in Prolate Gourt for Prolate of Will. </p> <p>1. When equity will not enjoin application to probate court for statutory new trial in matter of contested probate of will. — An application to the probate court for a statutory new trial (Rev. Code, § 2827), in the matter of the probate of a will, which had been rejected when propounded by the executor, will not be enjoined in equity, on the ground that the matter has been finally adjudicated between the parties, when it appears that the supposed final adjudication was before the passage of the law authorizing a new trial, and that the parties are not the same.</p> <p>2. Statutory new trial (Bev. Code, § 2827) in cases of judgments rendered between 1861 and 1866. — The legatees under a will, which was propounded for probate by the executor therein named, and rejected on a contest, are not precluded from applying for a statutory new trial (Rev. Code, § 2827), because the executor cannot bring himself within the provisions of the statute; nor because a bill in chancery, which they had filed to establish the will, was dismissed, on the ground that they had an adequate remedy at law, before the passage of the law authorizing new trials.</p>

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

<p> Bill in Equity for Foreclosure of Mortgage. </p> <p>Mortgage of lands belonging to wife’s statutory separate estate, to secure loan of purchase-money ; resulting trust. — If a married woman borrows money to pay for land, and takes the title in her own name; and afterwards, without the concurrence of her husband, executes her promissory note to the lender for the sum borrowed, and a mortgage on the land to secure its payment, — the note and mortgage are both void, and create no liability against her personally, or against her statutory separate estate; nor can the mortgagee claim a resulting trust in the lands, because his money was loaned for the purpose of being used in making the purchase, and was so used.</p>

Appear from the Circuit Court of Jefferson. Tried before the Hon. Wm. S. Mudd.

Tried before the Hon. John D. Cunningham. The acceptance of tfiedefendant’s note from Porter, with a full knowledge of all the circumstances connected with the transaction, and the plaintiff’s subsequent attempt to collect the note, amounted to a ratification of Porter’s unauthorized act; and the plaintiff cannot afterwards maintain an action for the conversion of the wagon by the defendant.

In the matter of the estate of William Ballentine, deceased, which was declared insolvent on the 15th March, 1870, and against which a claim was filed by the appellant on the 22d April, 1870. This claim was rejected by the court, on motion of the other creditors ; and this ruling, to which an exception was reserved, is now assigned as error.

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

<p>From tbe Circuit Court of Lowndes.</p> <p>Tried before tbe Eton. James Q. Smith.</p>

From tbe Criminal Court of Dallas. Tried before tbe Hon. Geo. H. Craig. The prisoner in this ease was indicted for the larceny of a “ gold watch and chain, of the value of more than one hundred dollars, the personal property of Frank Fields ,• ” was convicted, and sentenced to the penitentiary for two years.

From the Criminal Court of Dallas. Tried before the Hon. George H. Craig. The indictment in this case charged, that the defendant “ did buy, receive, conceal, or aid in concealing one iron chain, of the value of more than one hundred dollars, the personal property of Patrick Callahan, knowing that the same had been stolen, and not having the intent to return it to its owner.’ The defendant pleaded not guilty, and issue was joined on that plea.

From the Circuit Court of Elmore. Tried before tbe Hon. Jas. Q. Smith.

<p>From tbe Circuit Court of Colbert.</p> <p>Tried before the Hon. James S. Clark.</p>

FliOM the Circuit Court of Barbour. Tried before the Hon. J. McCalbb Wiley.

From the City Court of Mobile. Tried before the Hon. C. F. Moulton. The prisoner in this case was indicted for arson, was convicted, and sentenced to imprisonment in the penitentiary for the term of seven years.

<p> Indictment for Burglary. </p> <p>Sufficiency of indictment. — An indictment for burglary (Rev. Code, § 3695), which charges the prisoner with breaking and entering a house, “ in which there was stored at the time cotton in the seed,” without an averment that it was a thing of value, is fatally defective.</p>

From the Circuit Court of Lowndes. Tried before the Hon. James Q. Smith. The indictment in this case charged, that the defendant “ did engage in and carry on the business of retailing spirituous, vinous, and malt liquors, in said county,' without a license, and contrary to law; against the peace,” &c. The defendant pleaded not guilty, was tried on issue joined on that plea, was found guilty by the jury, and fined one hundred and fifty dollars.

<p> Indictment against Retailer for Violation of Revenue Law. </p> <p>Carrying on business of retailing spirituous liquors; wliat constitutes. — tinder an indictment for carrying on the business of retailing spirituous liquors without a revenue license (Sess. Acts 1868, pp. 329-30, §§ 105, 112), a conviction may be had on proof that the defendant, “ on a few several occasions, sold case whiskey in quantities less than one quart,” and that he had no license.</p> <p>2. Liability of partners and partnership for violation of revenue laws. — Where two persons are jointly indicted for carrying on the business of retailing spirituous liquors without a license, a joint fine may be assessed against them, if they acted as a firm in carrying on the business, or a separate fine against each, if they acted individually.</p> <p>3. Conviction for retailing spirituous' liquors, under indictment for violation of revenue law. — Under an indictment for carrying on the business of retailing spirituous liquors without a license, in violation of the provisions of the revenue law of 1868, a conviction may be sustained for retailing without a license, under section 3618 of the Revised Code.1</p>

<p> Indictment for Statutory Assault, having Pistol to intimidate. </p> <p>Sufficiency of indictment, after verdict. — Ail indictment founded on section 3672 of the Revised Code, which charges that the defendants “ did assault and beat A. B. with a rope, stick, or whip, having in their possession at the time a pistol, with the intent to intimidate the said A. B., and prevent him from defending himself,” although it may not sufficiently charge the statutory offence, is nevertheless sufficient, after verdict, to support a conviction for an assault and battery.</p>

From tbe Criminal Court of Butler. Tried before tbe Hon. W. H. Crenshaw.

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

<p> Indictment against Agent of Foreign Insurance Company, for Violalation of Revenue Law. </p> <p>Agency of foreign insurance company ; when revenue license is necessary. — The agent of a foreign insurance company, who keeps his office in West Point, Georgia, and there transacts his business, is not required to take out a license under the revenue law of 1868 (Sess. Acts 1868, p. 330, § 107), because he issues policies on houses located in Alabama; nor is a single act of examining one house in this State, with a view to its insurance, sufficient to bring him within the provisions of said law, although a personal canvassing in this State for applications for insurance might subject him to its penalties.</p>

From the Circuit Court of Jefferson. Tried before the Hon. W. S. Mudd. The defendant in this case was indicted, under section 3625 of the Revised Code, for suffering gaming in a house kept by him, in which spirituous liquors were retailed. He reserved a bill of exceptions on the trial to several rulings of the court, which are now assigned as error, and which will be readily understood from the opinion of the court.

Ebom the Circuit Court of Walker. Tried before the Hon. W. S. Mudd. The indictment in this case, omitting the caption, &c., was in these words: “ The grand jury of said county charge that, before the finding of this indictment, Leonidas Wood and E. T. Wood, unlawfully, and with maice aforethought, did assault Daniel Grace, with intent to murder him.” The defendants jointly pleaded “not guilty to said indictment;” and on this plea issue was joined.

Fhom the Circuit Court of Fayette, on change of venue from Tuskaloosa. Tried before the Hon. Wm. S. Mudd. The prisoner in this case was indicted for the murder of Til-man H. Taylor, by shooting him with a pistol; was convicted of murder in the second degree, and sentenced to the penitentiary for the term of twelve years.

<p> Indictment for Assault and Battery. </p> <p>1. Assault and battery; retaking possession of stolen property. — An assault and battery cannot be justified, excused, or extenuated, by evidence showing that the person assaulted had possession of the defendant’s horse which had been stolen, and refused to surrender it on demand.</p> <p>2. Oath of petit jury. — Where the jury are sworn, in a criminal case, “ well and truly to try the issue joined, and true verdict to render according to the evidence ” (Bev. Code, § 4092), this is a substantial compliance with the statute.</p>

<p> Indictment for Murder. </p> <p>1. Drunkenness, and mental unsoundness, as excuse far crime. — Although “ drunkenness, in itself, is no palliation or excuse for crime ” committed while under its influence ; yet mental unsoundness, superinduced by excessive drunkenness, and continuing after the intoxication has subsided, may be an excuse.</p> <p>2. Charge on effect of evidence. — A charge, instructing the jury in a criminal case, “ that upon the evidence, the defendant was guilty of murder in the first degree, or of nothing,” is a charge on the effect of the evidence (Rev. Code, §-2678), and, if given without request of either party, is erroneous.</p>

From the Circuit Court of Henry. Tried before the Hon. J. McCaleb Wiley. The indictment in this case charged, that the defendants, Jerry Pines and Offy Sutton, “ broke into the storehouse of M. D. Hart, in which goods, merchandise, or other valuable thing, is kept for sale or deposit, with the intent to steal; against the peace,” &c. There was no objection to the indictment, and the trial was had on issue joined on the plea of not guilty.

From the City Court of Eufaula. Tried before the Hon. E. M. Keils.

<p> Prosecution for Sabbath-breaking. </p> <p>Sabbath-breaking by shooting. — To shoot at a dog on Sunday, in wantonness and mischief, is a violation of the statute (Rev. Code, §3614) against Sabbath-breaking.</p>

Fkom the Circuit Court of Pike. Tried before the Hon. J. McCaleb Wiley.

From the Criminal Court of Dallas. Tried before the Hon. Geo. H. Craig. The indictment in this case, omitting the heading, &c., was in these words: “The grand jury of said county charge, that, before the finding of this indictment, Paul Jones forged an order for money, in words and substance as follows: ‘ Selma, Ala., Nov. 14, ’72. Pa, please send me ($5.00) five dollars.

<p> Indictment for Gamal Abuse of Female Child. </p> <p>1. Waiver of defective service of copy of indictment. — Where the prisoner, charged with a capital offence, is served with an imperfect copy of the indictment against him (Rev. Code, §41-71), which, though defective, is nevertheless sufficient to inform him of the nature and cause of the accusation against him; and pleads not guilty, and permits the jury to be empanelled, sworn, and charged with his trial, — he cannot object to proceeding with the trial on account of the defective service, when the prosecuting attorney offers to read the indictment to the jury.</p> <p>2. Competency of child as witness. — A female child, eight years of age, upon whom the alleged criminal assault was made, is a competent witness for the prosecution, notwithstanding her tender years.</p> <p>3. Practice in examination of witnesses. — In the examination of witnesses, much must necessarily be left to the discretion of the presiding judge in the court below, particularly in the case of a female child of tender years, who is offered as a witness to prove carnal abuse of her person ; and this discretion will not be revised by the appellate court, unless it clearly appears to have been improperly exercised.</p>

From the Circuit Court of Tuskaloosa. Tried before the Hon. W. S. Muno. The prisoner, John Spaniard Cates, was indicted for the murder of Moses Terrell, his brother-in-law; was convicted of manslaughter in the first degree, and sentenced to eight years’ imprisonment in the penitentiary. On the trial, he reserved several exceptions to charges given by the court, and to the refusal of several charges asked by him; and these are- the matters here relied on for a reversal.

From the Criminal Court of Bullock. Tried before the Hon. C. J. L. Cunningham.

<p> Indictment for Betting at Cards. </p> <p>1. Betting at cards “inpublic place.” — Under an indictment which charges the defendant with betting at “a game played with cards in a public place ” (Rev. Code, § 3622), a conviction may be had on proof that the game was played “ata house where spirituous liquors were retailed; ” and if the playing was in an open place, within ten feet of the door of the house, and within full view of it, this, in contemplation of law, is at the house.</p> <p>2. Sufficiency of indictment. — An indictment, which alleges that the defendant “ bet fractional currency of the United States,” the denomination and value of which are averred, “ at a game played with cards by him in a public place ” (Rev. Code, § 3622), is sufficient.</p> <p>Note by Reporter. —In the case of Wade Napier v. The State, the judgment was affirmed on the authority of this case, but no written opinion was delivered. The indictments in the two cases, and the bills of exceptions, were in the same words, mutatis mutandis. See also the case of Bose Napier v. The State, p. 168.</p>

From the Circuit Court of Montgomery, on change of venue from Elmore. Tried before the Hon. James Q. Smith.

<p>From the Circuit Court of Autauga.</p> <p>Tried before the Hon. James Q. Smith.</p>

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

<p>Appeal from the Law and Equity Court of Lawrence.</p> <p>Tried before the Hon. James S. Clark.</p> <p>The appellants in this case commenced suit, by attachment against W. R. Johnson on the 15th June, 1870, and summoned R. E. Tweedy and A. E. Ashford, by process of garnishment, as the debtors of said Johnson. The garnishees filed separate answers, admitting that, on the 6th day of June, 1870, they executed their joint and several promissory note for $8,174.15, payable on the 1st day of January, 1871, to said W. R. Johnson or bearer; and stating that, since the service of the garnishment, they had been notified that said note had been transferred to William T. Plummer, as trustee for Mrs. Annie E. Johnson, •who was the wife of said W. R. Johnson. The record does not show when the garnishment was served on said Tweedy and Ashford, nor when their answers were filed; but the answers were sworn to, respectively, before a notary public, on the 2d and 12th September, 1870. Thereupon, said Plummer appeared, and propounded his interest in the note, under oath, on the 17th March, 1871, in these words: “ Comes W. T. Plummer, trustee, &c., and propounds his claim, as required by section 2978 of the Revised Code of Alabama, and says that he, as trustee of Annie E. Johnson, has a just claim to a certain promissory note for $3,174.15, made and executed on the 6th day of June, 1870, by R. E. Tweedy and A. E. Ashford, jointly and severally, payable to W. R. Johnson or bearer; that the said promissory note was, for valuable consideration, transferred and assigned by indorsement to him, as trustee of Annie E. Johnson as aforesaid, on the 6th day of June, 1870, and he is the lawful holder of said note; and that said promissory note is the same note described in the answer of R. E. Tweedy to the garnishment in this cause.” To this statement the plaintiffs filed the following answer, or replication: “ The plaintiffs take issue on the facts alleged in this claim, and deny that the claimant is the owner of the said note.”</p> <p>On the issue thus joined between the parties, as the bill of exceptions shows, the plaintiffs proved that the consideration of said note was the purchase by said Tweedy of said W. R. Johnson’s interest in the mercantile houses of Ashford & Johnson, and Ashford, Johnson & Co., of which said Johnson was a partner; while the claimant’s evidence tended to show that the money invested in said mercantile firms by said Johnson belonged to his wife, having been given to her by him in 1869, after their marriage, and borrowed from her to be used in said business. Said W. R. Johnson was offered as a witness by the •claimant, to prove the gift of the money to his wife, and the circumstances connected with the transfer of said note to Plummer, who was the father of Mrs. Johnson, and resided in Somerville, Tennessee, at the time the note was transferred to him. The plaintiffs objected to his competency as a witness, and reserved an exception to the overruling of their objection. Mrs. Johnson was also allowed, against the plaintiffs’ objection, to testify as a witness for the claimant; and an exception was reserved by the plaintiffs to this ruling.</p> <p>The transfer, or indorsement of the note, was in these words: “ Courtland, Ala., June 6, 1870. For and in consideration that I am indebted to my wife, Annie E. Johnson, in the sum of five thousand one hundred and fifty dollars ($5,150), for money of her separate estate, borrowed on the 12th day of March, 1869, and used by me, and am desirous to pay the same, I do hereby transfer and assign the within promissory note to Wm. T. Plummer, as trustee for the said Annie E. Johnson, who, as trustee, is hereby directed and empowered to collect the amount of the same when due, and pay the proceeds to the said Annie E. Johnson, as a credit on my indebtedness to her;” signed by the said W. R. Johnson. Appended to this indorsement was a memorandum, signed by R. F. Patterson, the collector of internal revenue for the United States at Memphis, Tennessee, in these words: “ Internal revenue stamps, to the amount of $3.50, affixed to this instrument, and cancelled by me, at the request of Annie E. Johnson, this 10th day of July, 1872 ; penalty, $7.00, paid.” The bill of exceptions does not show that any objection was made by the plaintiffs to the admission of this indorsement as evidence, though one of the assignments of error is founded on its admission.</p> <p>“The contestant offered E. H. Foster as a witness, to prove the circumstances, time, &c., under which said note was transferred, and that said W. R. Johnson had consulted him professionally about the said transfer, and that he dictated, while said Johnson wrote the said transfer. The plaintiffs objected to the competency of said Foster as a witness, on the ground that he was the attorney of said Johnson about the matter, and all he then said and did about the transfer of the note were confidential communications, and it was against public policy to ask him about it.” The court overruled the objection, and allowed said Foster to testify as a witness; to which ruling the plaintiffs excepted.</p> <p>“ After the contestant had closed his evidence, the plaintiffs recalled said W. R. Johnson, and proposed to ask him, whether his wife did not now own some real estate, or other property, in Somerville, Tennessee, or elsewhere; and how she got this property, if any she owned; and how she derived title to the same, and the time when; and whether he had not conveyed property to her since he left Alabama, and since the 6th June, 1870 ; and whether she owned any property shortly after the 6th June, 1870; and if so, how much, and how she held it, and upon what title, and from whom, — as circumstances to show that she had been fully paid her debt, if any debt there was against said W. R. Johnson; and if such was the fact, as circumstances to show fraud on the part of said W. R. Johnson in transferring said note to Plummer as trustee for his wife.” The contestant objected to these questions, as being illegal and irrelevant, and the court sustained the objection; to which the plaintiffs excepted.”</p> <p>“ As a circumstance to show fraud on the part of said W. R. Johnson, as against his existing creditors, in the transfer of said note to said Plummer as trustee, the plaintiffs proposed to prove the insolvency of said Plummer at and before the time of the transfer of said note to him, to wit, on or about the 6th June, 1870; which evidence the court would not permit to go to the jury, and the plaintiffs duly excepted.”</p> <p>The bill of exceptions purports to set out all the evidence, and recites that “ the court thereupon gave the following charges to the jury, to wit: —</p> <p>“ Charge No. 1. ‘ That whether Tweedy and Ashford, garnishees, had notice of the transfer of the note to Plummer, as trustee for Annie E. Johnson, before service of the garnishment, made no difference whatever; that if the transfer was legal, and all right, the note was not subject to the garnishment ; that the title passed to Plummer by the transfer, and Tweedy and Ashford could not be held as garnishees on the note in a suit against W. R. Johnson, although they had no notice of the transfer until after the service of the garnishment.’ To this charge the plaintiffs duly excepted.</p> <p>“ Charge No. 2. ‘ That if the jury believe, from the evidence, that the transfer of the note by Johnson to Plummer as trustee for Mrs. Johnson was made to hinder and delay or defraud his creditors, and that no actual assent to the transfer was made by Mrs. Johnson, the beneficiary, until after the service of the garnishment on said Tweedy and Ashford, then they must find for the plaintiffs; but they must look to the testimony as to such actual assent or not, and are bound to believe the evidence, unless impeached, on that question; that the jury is bound to believe the evidence before them, unless impeached or discredited.’ To the latter part of this charge, about the jury being bound to believe the evidence unless impeached or discredited, the plaintiffs excepted.</p> <p>“ Charge No. 3. ‘ That the burden of proof, on this issue, was on the plaintiffs, Rowland & Co., and it is incumbent on them to prove the illegality and invalidity of the transfer of the note by Johnson to Plummer, and not on the contestant to prove its legality and validity.’ To this charge, also, plaintiffs excepted.”</p> <p>The plaintiffs then requested the following written charges:—</p> <p>“ 1. That unless Johnson was indebted to his wife at the time of the transfer of the note to Plummer as trustee for her, said transfer was merely voluntary, and without consideration, and void as to the then existing creditors of said Johnson.</p> <p>“ 2. That if they believed, from the evidence, that the transfer of said note, was made to hinder, delay, and defraud the creditors of W. R. Johnson, then they must find for the plaintiffs.</p> <p>“ 3. That Johnson was the trustee for his wife, of all property belonging to her as her statutory separate estate, and as such all her property vested in him, and he had the right to the management and control of it.</p> <p>“ 4. That Johnson could not borrow his wife’s statutory separate estate.</p> <p>“ 5. That Johnson could not become a debtor to his wife by the simple act of borrowing money belonging to her as her statutory separate estate, and that Johnson qnd his wife could not contract with each other for him to borrow money belonging to her as her statutory separate estate.</p> <p>“6. That if the jury believed, from the evidence, that the garnishees had no notice of the transfer of their note by Johnson to Plummer before the service of the garnishment, and that said Plummer was negligent in notifying them of the said transfer, said note was subject to the garnishment in this case, and a lien attached in favor of the plaintiffs on said note.</p> <p>“ 7. If the jury believe that the instrument of writing on the back of the note was not recorded, or deposited for record, in the probate court of Lawrence county, Alabama, before the levy of the attachment by service of the garnishment on Tweedy and Ashford, then the said instrument of writing is inoperative and void as against the then existing creditors of said Johnson, and the attachment is a lien on the note in controversy, and the contestant is not entitled to recover.</p> <p>“ 8. If the jury believe that the indorsement, or instrument in writing on the back of the note, was not stamped until after the levy of the attachment, then the contestant is not entitled to recover. ”</p> <p>The court gave the 1st, 2d, and 3d charges as asked, but refused the others ; and the plaintiffs excepted to their refusal.</p> <p>The court also gave, at the request of the contestant, the following charges in writing: “ 9. The wife must join in a fraudulent action, before her rights can be defeated by fraud.” “ 10. If the jury believe, from the evidence, that Johnson took his wife’s separate estate money with her consent, and used it, it was competent for him to repay the same to her; and to that end, it was legal for him to make an assignment of the note to Plummer, to secure the payment to her, provided it was an honest transaction.” To these charges also the plaintiffs excepted.</p> <p>The errors now assigned are : —</p> <p>“ 1. The court erred in refusing to allow the appellants to prove the insolvency of Plummer, as shown by the bill of exceptions.</p> <p>“ 2. The court erred in permitting W. R. Johnson to give evidence for his wife, as shown by the bill of exceptions.</p> <p>“ 3. The court erred in permitting Foster, the attorney for the parties, to testify, as shown by the bill of exceptions.</p> <p>“4. The court erred in permitting the transfer on the back of the note to be read in evidence, for the reason that it was not properly stamped, as shown by the record.</p> <p>“ 5. The court- erred in permitting Mrs. Johnson to give evidence for her husband, as shown by the bill of exceptions.</p> <p>. “ 6. The court erred in giving charges numbered 1, 2, and 3, as shown by the bill of exceptions.</p> <p>“ 7. The court erred in refusing to give the written charges numbered 4, 5, 6, 7, and 8, as shown! by the bill of exceptions.</p> <p>“ 8.. The court erred in giving the charges numbered 9 and 10, as shown by the bill of exceptions.</p> <p>“ 9. The court erred as shown by the bill of exceptions.</p> <p>made the following points: 1. The appellants ought to have been permitted to prove the insolvency of Plummer at the time the note was transferred to him. Where the question of fraud in a transaction is involved, as here, 'great latitude is allowed in the admission of evidence. Benning v. Nelson, 23 Ala. 801. That the selection of an insolvent person by a debtor, as assignee or trustee, is a fraud on his creditors, see Burrill on Assignments, 2d ed. p. 67; also, 18 Ala. 301.</p> <p>2. W. R. Johnson was not competent as a witness for the trustee of his wife. At common law, the husband was not a competent witness for the wife, either at law or in equity; and this, on the grounds of interest and public policy. 1 Greenl. Ev. § 334 ; Gresley’s Eq. Ev. 40; Wilson v. Sheppard, 28 Ala. 623. The statute has removed the incompetency resulting from interest, but the question of public policy remains unchanged. The case of Robinson v. Robinson (44 Ala. 227), on this point, only affirms the competency of the husband, under the peculiar circumstances of that case, on the ground of necessity, — “ because he alone knew what disposition he had made ” of his wife’s separate estate; and does not establish his competency to prove a gift to his wife, as was done in this case.</p> <p>3. Foster was not competent as a witness to prove anything connected with the transfer of the note, since he was the attorney of Johnson and wife in that matter. The plaintiffs certainly could not have compelled him to testify about these matters, and he ought not to have been allowed to testify against them. Some old authorities hold, that the privilege is personal, and may be waived by the client; but the record does not show any waiver by Johnson or his wife, who were the clients. It is submitted, however, that the rule is founded on a principle of great public policy, to promote the administration of public justice, and not to subserve the private interests of individual suitors. Parish v. Grates, 29 Ala. 254.</p> <p>4. Mrs. Johnson ought not to have been allowed to testify as a witness. The only question was as to the right of Plummer, as her trustee, to the note in dispute; and the main point in controversy was, whether the transfer of the note by her husband was fraudulent. 28 Ala. 623.</p> <p>5. The evidence which the plaintiffs sought to elicit from Johnson, and which the court refused to allow, was relevant and proper. If Mrs. Johnson had been fully paid her debt, prior to the 6th June, 187 0, then the transfer of the note for her benefit was voluntary, and void as against existing creditors ; and the evidence was intended to establish this fact.</p> <p>6. Plummer lost his prior equity, as against these plaintiffs, by his failure to notify the garnishees of the transfer until after the service of the garnishment. Drake on Attachments, § 575. Under the facts in proof, it was his duty at once to notify the garnishees of his claim, so that the creditors might have sought other property; and he must suffer the consequences of his laches. The first charge of the court, therefore, was erroneous.</p> <p>7. The last part of the second charge — “ that the jury were bound to believe the evidence, unless impeached or discredited ” — was a charge “ on the effect of the evidence,” which the court had no right to give, unless requested. Rev. Code, § 2678; Morris v. Hall, 41 Ala. 510.</p> <p>8. The claimant, when notified, must propound his interest, under oath ; “ upon which the plaintiff must take issue in law or in fact.” Rev. Code, § 2978. This clearly makes the contestant assume the affirmative of the issue, and throws on him the burden of proof. The proceeding is unlike a trial of the right of property. The answer of the garnishee makes out a primd facie case for the plaintiff, when he admits an indebtedness to the defendant in attachment; and the plaintiff is entitled to judgment against him, unless the transferee appears, and successfully establishes his title. The transferee is compelled to aver the validity of the transfer, and the onus of proving that fact rests on him. 12 Ala. 25; 11 Ala. 181; 1 Brick. Digest, 187.</p> <p>9. Husband and wife cannot contract with each other, for the sale of any property. Rev. Code, § 2374; 39 Ala. 138. The fourth and fifth charges asked should have been given.</p> <p>10. The assignment indorsed on the note has all the ingredients of a deed of trust, or mortgage, for the security of a debt; and it ought to have been recorded. Rev. Code, § 1561.</p> <p>11. The assignment was not stamped at the time it was made, as required by the acts of Congress then in force ; and the collector at Memphis, Tennessee, was not the “ proper collector ” to affix them on the 10th July, 1872, when the assignment was dated and written at Courtland, Alabama. 16 U. S: Statutes at Large, 257, § 5 ; 14 lb. 143, § 158; Pugh v. McCormick, 14 Wallace, 361; 46 Ala. 267. The subsequent act of June 6, 1872, did not take effect until the 1st day of August, 1872 ; and the 46th section expressly declares, that said act “ shall not be construed to affect any act done, right accrued, or penalty incurred under former acts, but every such right is hereby reserved.” The rights of these plaintiffs had then accrued, and they are not affected by the subsequent stamping of the assignment.</p> <p>12. The 10th charge given, under the facts of the case, was calculated to mislead the jury.</p> <p>1. The husband was indebted to the wife, for borrowed money belonging to her separate estate, to an amount greater than was due by the note; and the transfer to the trustee, in part satisfaction of that debt, was valid in law. Sprague v. Tyson, 44 Ala. 339. A debtor may lawfully confess a judgment for a just debt, when another creditor threatens to sue out an attachment against him; and such confessed judgment is not even a badge of fraud. Rag-land v. Cantrell, at January term, 1873. The husband may lawfully s.ell a steamboat to his wife, and she may repair and run it. Stone ft Matthews v. Q-azzam, 46 Ala. 269. If property is voluntarily transferred by a husband, to hinder and delay his creditors, the transaction is fraudulent and void; but if the transfer is an honest payment of a just debt, the transaction will be upheld. Wills, Pulliam Rankin v. Newberry, 41 Ala. 173; Tatum v. Hunter Thomas, 14 Ala. 557. A conveyance is not necessarily fraudulent and void, because its necessary and inevitable effect is to hinder and delay creditors. Young v. Pumas, 39 Ala. 60 ; Borland v. Mayo, 8 Ala. 104, 118.</p> <p>2. W. R. Johnson was a competent witness for the trustee. At common law, the husband was declared incompetent as a witness against his wife, on the ground of public policy ; but his incompetency to testify for her was placed on the ground of interest. 1 Phil. Ev. p. 77. So far as the incompetency resulted from interest, the rule has been changed by statute. The question is fully settled by the case of Robinson v. Robinson, 44 Ala. 227.</p> <p>3. Foster was properly allowed to testify. The rule which protected an attorney from examination as a witness — his privilege, as it was called — was intended for the benefit of his client, and might be waived by him. 1 Phil. Ev. 141, ed. 1839. Even if the controversy had been between Johnson and his wife, Foster, as their common attorney, would have been a competent witness for either. Parish v. Gates, 29 Ala. 254. A fortiori, he was a competent witness for them, against all the world.</p> <p>4. Mrs. Johnson was the party really interested in the suit, and no objection to her competency can be sustained. Rev. Code, § 2704.</p> <p>5. The plaintiffs in attachment were the actors, and the burden of proof was on them. Grady's Adm’r v. Hammond, 21 Ala. 427; 11 Wendell, 240 ; 3 Barbour’s Ch. 196.</p> <p>6. The insolvency of Plummer, the trustee, had no relevancy to any of the issues involved in the case. The selection of an insolvent assignee by a debtor has been held evidence of an intent on his part to defraud his creditors, or to keep the control of his property in his own hand ; but the presumption of fraud in such cases is rebutted by proof that the creditors were consulted, and consented to the appointment. Reed v. JEmery, 8 Paige, 417; Tompkins v. Wheeler, 16 Peters, 120. Here, the trustee was selected with the consent and approbation of the beneficiary; and the transfer of the note was, in no sense, a general assignment for the benefit of creditors.</p> <p>7. The evidence sought to be elicited from the witness Johnson was not relevant. Courts will not tolerate any indirectness of examination, which shows that counsel are wasting the time of the court on mere experiments to improvise evidence, or else to bewilder the minds of the jury with vague inferences from facts and circumstances altogether indirect, and having no reasonable connection with the material facts in issue. Wiswall v. Ross, 4 Porter, 321-30; Crenshaw v. Davenport, 6 Ala. 390 ; Cwthbert v. Newell, 7 Ala. 457 ; Cunningham v. Cochran, 18 Ala. 480 ; Carlisle v. Hunley, 15 Ala. 623 ; Florey v. Florey, 24 Ala. 249; Shields fr Walker v. Henry <$• Mott, 31 Ala. 53.</p> <p>8. If notice of transfer is given to the garnishee at any time before he answers, he is bound to disclose the fact at his peril, and the garnishment does not impair his obligation to pay the assignee. Colvin v. Rich, 3 Porter, 175; Foster v. White, 2 Ala. 177; Crayton v. Clark, 11 Ala. 787 ; Nicks v. Branch, 12 Ala. 594 ; Rev. Code, § 2977.</p> <p>9. The jury were properly instructed that they were bound to believe the evidence unless it was impeached or discredited. If the plaintiffs desired an explanatory charge, as to the different modes in which testimony may be impeached, they should have asked it.</p> <p>10. An oral gift, perfected by delivery, or by acts tantamount to a delivery, may be made by a husband to his wife. Goree v. Walthall, 44 Ala.-161. When the husband is indebted to his wife, he may convey property to her by deed, or give personal property, in payment of the debt; and this is on the principle, that a man may voluntarily do what a court of equity would compel him to do. 2 Story’s Equity, §§ 1374-5; 10 Ala. 348 ; Wilson v. Sheppard, 28 Ala. 623.</p> <p>11. The assignment of the note was the transfer of a mere chose in action, and it was not necessary that it should be recorded. Rev. Code, § 1556.</p> <p>12. No stamp was necessary, under the acts of Congress, on negotiable paper. 2 Brightly’s Digest, Internal Revenue, § 254; Pugh v. Mo CormicJc, 14 Wallace, 361. The proper stamps were affixed, out of abundant caution, and cancelled by a United States collector of the district in which the holder resided.</p> <p>13. The question of fraud was submitted to a jury, and by them was decided adversely to the plaintiffs. This court, as well as others, will not strain conclusions, nor impute constructive fraud, when the facts are consistent with honesty and fair dealing, and have been sanctioned by the verdict of a jury. Ala. Life Ins. Go. v. Pettway, 24 Ala. 566 ; Smith’s Heirs v. Br. Bank, 2Í Ala. 135 ; State v. Kinlcle, 3 Ala. 352.</p>

Tried before the Hon. Vi. S. Mudd. This action was brought by the appellants, suing as the executors of the last will and testament of Edward Davis, deceased, against Abner J. Wells and others, to recover the possession of certain lands, which were particularly described in the complaint, and which the plaintiffs claimed under a purchase by their testator at a sale made on the 23d March, 1869, by George M. Figh', as the administrator of John P. Figh, deceased, under a power…

Tried before the Hon. P. 0. Harper. This action was brought by Wilhelmina Benziger, an infant, who sued by her father as her next friend, against John Miller, to recover damages for the defendant’s breach of a contract, made between him and the plaintiff’s father, for the plaintiff’s employment as a teacher of music in the “ Wilcox Female Institute ” at Camden, of which the defendant was in charge as principal, at a salary of $700 for the scholastic year commencing on the…

Application by petition, by Mrs. Sallie M. Reavis, the widow of Turner Reavis, deceased, for a writ of mandamus to the probate judge of Sumter county, compelling him to vacate and set aside an order disallowing allotments of personal property as exempt from administration, under the facts stated in the opinion of the court.

Heard before the Hon. B. B. McCraw. The bill in this case was filled by. Gordon & Stokes, the appellants, against M. A. Bell and W. C. Oates, on the 30th October, 1871; and sought to enforce a vendor’s lien for the unpaid purchase-money of lands. The chancellor dismissed the bill, on final hearing, on pleadings and proof; and his decree is here assigned as error.

Heard before the Hon. Adam C. Felder. The bill in this case was filed on the 14th day of September, 1869, by Mrs. Frances A. Jones, the wife… Held: as this court must judicially know, on the second Monday in May ; and the mistake of the clerk, in inserting a different day, cannot change its legal effect. Yonge v. Broxson, 23 Ala. 688 ; Love v. McRae, 12 Ala. 444 ; Sampley v. Walker, 9 Ala. 726 ; Waff or d v. Robinson, 7 Ala. 489 ; Harrell v. Martin, Pleasants Go. 4 Ala. 650.

<p>Motion to set aside an affirmance of the judgment at the June term, 1872, for want of an assignment of errors.</p>

Heard before the Hon. A. W. Dillard. The facts of this case, as stated in the opinion of the court, were these: “ The bill was filed by John D. Bibb and others, as the heirs and distributees of the estate of Rufus R. Sims, deceased, against Washington Moody, as the guardian of said Sims in his lifetime, and against William P. May, as the administrator of the estate of said Rufus R. Sims, and others interested in his estate.

Tried before the Hon. W. H. Crenshaw. This action was brought by Theodore H. Kimball, against James L. Dunklin, and was commenced on the 1st day of August, 1872.

<p> Motion for Certiorari to perfect Record. </p> <p>1. When certiorari will not he awarded to appellant. — Under the 11th rule of practice (Rev. Code,p. 817), a certiorari from this court will not be awarded, at the instance of the appellant, to bring up pleadings which appear to have been omitted from the transcript, without any showing as to the contents of the omitted pleadings, or the time when the appellant discovered the defects of the transcript, or the diligence exercised by him in attempting to cure them; nor where the omitted pleadings appear to have heen mere nullities, which might have been stricken out as frivolous.</p> <p>2. Defects in garnishment; how taken advantage of.— A demurrer does not lie to a writ of garnishment, which is mere process, and serves its purpose when it brings the garnishee into court: defects in it, if available at all, can only be reached by motion to quash, or by plea in abatement.</p> <p>3. Joinder of persons as garnishees. — Any number of persons may be joined in a writ of garnishment, whether they are liable or indebted to the defendant jointly or severally, and such joinder does not make the writ subject to a plea in abatement.</p>

<p> Action on Promissory Note, by Transferee against Maher. </p> <p>1. Transfer of promissory note; governed by what law. — If a married woman, residing with her husband in Alabama, acquires a promissory note as a part of her statutory separate estate, and she and her husband afterwards remove to Mississippi, the validity of a transfer of the note, subsequently made in Mississippi, whether by delivery or ¿p writing, is governed by the laws of that State.</p> <p>2. Proof of foreign statutes. — The Revised Code of Mississippi, purporting on its face to have been published by the authority of the legislature in 1857, is competent evidence (Rev. Code, § 2693) to prove the statutes therein incorporated.</p>

<p>Appral from the Chancery Court of Clay.</p> <p>Heard before the Hon. B. B. McCraw.</p>

<p>Appeal from tbe Circuit Court of Limestone.</p> <p>Tried before tbe Hon. James S. Clark.</p>

Tried before the Hon. L. B. Smith. This action was brought by Geo. P. Bradford & Co., suing as partners, against J. T. Broadnax and H. W. Broadnax, as late partners doing business under the name of J. T. Broadnax & Co.; and was founded on several promissory notes executed by the defendants to the plaintiffs, for goods sold on a credit, and on the accounts which were the consideration of the notes.

Tried before tbe Hon. James Q. Smith. This was an application by petition, by Joseph H. Speed, tbe superintendent of public instruction, for a mandamus against Robert T. Smith, tbe auditor of public accounts, to compel said auditor to draw his warrant on tbe tax-collector of Macon county, in favor of tbe treasurer of said county, for tbe amount certified to tbe auditor by said superintendent as ninety per cent, of tbe public school money to which said county would be…

Tried before tbe Hon. M. J. Saeeold. This action was brought by Mills Rogers, against Munter & Faber, and was commenced in tbe 25tb September, 1868.

Heard before the Hon. Adam C. Felder. The facts of this case were thus stated by B. F. Saeeold, J.: — “ The bill was filed by the appellants, and prayed that the legal title to certain lands be divested out of the heirs-at-law of Henry S. Abrams, deceased, and that said heirs be required to convey the same to the complainants.

<p> Final Settlement of Guardian’s Accounts. </p> <p>1. Parties to decree. — A decree of the probate court, rendered against a guardian on final settlement of his accounts, will not be reversed on error or appeal, at his instance, because the names of all the wards are not set out in the decree, when their names are fully shown by the record, and no objection was taken in the court below on account of the parties.</p> <p>2. Loan of ward’s funds by guardian. — A guardian has authority, and it is ' made his duty by statute (Rev. Code, § 2426), to lend out the surplus money of his ward on bond and mortgage, or on good personal security ; and if he takes a note with sufficient sureties for money thus loaned, and resigns before the note becomes due, he is not responsible for any loss that may afterwards occur.</p> <p>3. Vouchers for credits, and proof thereof. —"When the items of credit in a guardian’s account current are objected to and contested on his final settlement, they should not be allowed, unless supported by proper vouchers and sufficient proof of their correctness.</p> <p>4. Guardian’s commissions. — A guardian is entitled, on final settlement of his accounts, to commissions on the amount of his receipts and disbursements, as shown by the record; and no voucher or proof aliunde is necessary to sustain the item for such credit.</p> <p>5. Receipt by guardian of Confederate currency. — A guardian is responsible for the funds of his ward, converted by him during the late war, or by his agent or attorney, into “ worthless C. S. currency,” or Confederate States treasury-notes ; but he cannot be charged with any conversion, or neglect, or default, where the proof only shows that he received Confederate currency, in 1862, from an executor in Tennessee, but it is not shown when or how the rights of the wards accrued.</p>

Adam C. Felder, chancellor, sitting at Mobile, on the hearing of a writ of habeas corpus, sued out by Mrs. Eugenia Woodruff, against Patrick C. Conley, to test their respective rights to the custody of Mary Coniey Woodruff, an infant about nine years of age, whose father and mother were both dead.

Tried before the Hon. J. McCaleb Wiley. This action was brought by James E. Gachet, against Solomon McCall, and was commenced on the 1st day of April, 1870. The facts of the case were thus stated by the chief justice: — “Peters, C. J. — This is an action of assumpsit, brought to recover back money alleged to have been paid under protest, for taxes, penalties, and fees, improperly collected by the tax-collector.

. Tried before the Hon. James Q. Smith. The appellant in this case, suing as the executrix of the last will and testament of Jacob Bruce, deceased, recovered a judgment at the October term of said circuit court, 1871, against Thomas P. Williamson and James T. Giddens. On the 8th February, 1872, said Giddens filed his petition under the statute (Rev. Code, § 2814), asking a rehearing on the ground of surprise, accident, or mistake.

<p>A.PPEAL from the Chancery Court of Henry.</p> <p>Heard before the Hon. B. B. McCbaw.</p>

<p> Attachment and Garnishment. </p> <p>Garnishment of debtor of partner individually, under attachment against partnership.— In an action against a partnership, setting out the names of the individual partners, commenced by attachment, and founded on a partnership debt, money in the hands of a garnishee, belonging to one of the partners individually, may be subjected; but a chose in action cannot.</p>

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

<p> Action on Promissory Note, by Assignee against Maher. </p> <p>1. Sufficiency of complaint, in averment of plaintiff’s ownership of note. — “ Which said note is now the property of plaintiff,” is a sufficient averment of the plaintiff's ownership of the note sued on, in an action by an assignee against the maker.</p> <p>2. Note payable at particular place; variance. — Where the promissory note sued on is described in the complaint is payable generally, while that offered in evidence is payable at a bank, or other specified place, the variance is immaterial, as the legal effect of the note is the same in both cases.</p> <p>3. 'Transfer of note by executor. — A promissory note, payable to executors, and given for the price of property sold by them under an order of the probate court, may be transferred by them to a distributee, in payment pro tanto of his distributive share; and such transfer passes a title to the distributee, on which he may maintain an action against the maker, or successfully defend an action by an administrator de bonis non.</p>

Tried before the Hon. L. B. Strange. This action was brought by Benjamin F. Russey, against Jesse Thompson, and was commenced on the 7th day of February, 1868.' The defendant died pending the suit, and the action was thereupon revived against his executors. The complaint contained all the common counts, and a special count for the breach of a written contract, which was set out, in these words: — “La Place, Alabama, September 6, 1861.

Tried before the Hon. E. M. Keils. The record in this ease has been lost. Nothing but the opinion has come to the hands of the Reporter.

Tried before the Hon. W. L. Whitlock. This action was brought by John B. Nichols, against W. C. Wharton, as the administrator of Oliver P. Hill, deceased.

Heard before the Hon. William Skinner. The bill in this case was filed by John B. Yeargin against John G. Winston, and sought to enjoin an execution on a judgment at law, on the facts stated in the opinion of the court. On final hearing, on pleadings and proof, the chanceller rendered a decree for the complainant; and his decree is now assigned as error.

<p>Appeal from the Circuit Court of Wilcox.</p> <p>Tried before the Hon. P. 0. Harper.</p>

<p> Action for Price of Goods sold; Recoupment of Damages. </p> <p>1. Delegation of agents authority to sub-agent. — The legal maxim, that an agent cannot delegate his authority to a snb-agent, is not of universal application to factors and commission-merchants, and can only be invoked by the principal, when sought to .he charged by the act of the sub-agent.</p> <p>2. Recoupment of damages by purchaser, on partid delivery of goods sold. —- In an action by the vendor, to recover the price of goods sold and only delivered in part, the purchaser may recoup any damages sustained by him by reason of the failure or refusal to deliver the residue.</p> <p>3. Measure of damages for failure to deliver goods sold. — The measure of damages which the purchaser is entitled to recover, or recoup, on account of the vendor’s failure' or refusal to deliver the goods, is the difference between the agreed price and the market price at the time they ought to have been delivered.</p>

<p>Appeal from the Circuit Court of Hale.</p> <p>Tried before the Hon. M. J. SAPP OLD.</p>

Tried before the Hon. W. L. Whitlock. The facts of this case are fully and correctly stated in the opinion of the court, except as to the character of the action. The complaint was in the form prescribed (Rev. Code, p. 677) for “ trespass in taking goods,” and not that for “ the conversion of chattels.” cited Chapman v. Lathrop, 6 Cowen, 110; Bates v. ConMing, 10 Wend. 389; Hilliard on Sales, p. 94, §§ 74, 81, 82.

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

Heard before the Hon. A. W. Dillard. This case is reported in 46 Ala. 170, under the name df Brame v. McGree Wife. The bill was filed by Charles H. Braune, the appellant, against James McGee, Josephine A. McGee, his wife, and Foster M. Kirksey, the trustee of Mrs. McGee ; and sought to subject certain property, in the hands of said Kirksey as trustee, to the payment of a note or due bill for |57, executed by Mrs. McGee, dated and due on the 1st January, 1867.

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

<p>Appeal from the Circuit Court of Chambers.</p> <p>Tried, before the Hon. L. B. Strang-e.</p>

Tried before the Hon. L. B. Strange. This action was brought by B. S. Bibb and Jefferson Falkner, as executors of the last will and testament of William B. S. Gilmer, deceased, against Alfred B. Purgason; was founded on the defendant’s promissory note for $324, dated the 18th day of January, 1861, and payable on the 1st day of January, 1862, to said W. B. S. Gilmer or bearer ; and was commenced on the 9th day of February, 1869.

.Appeal from the Chancery Court of Henry. Heard before the Hon. B. B. McCbaw. The bill in this case was filed, as a supplemental bill, .on the 12th February, 1873, by James W. Balkum, the appellant, against James A. Yonge, as the administrator de bonis non of the estate of John W. Harper, deceased ; and sought to enjoin an execution on a judgment, which the administrator in chief of said Harper had recovered against said Balkum.

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

<p>Appeal from the Circuit Court of Hale.</p> <p>The record does not show the name of the presiding judge.</p>

<p>Action by Administrator, on Bond payable to Intestate.</p> <p>1’erminaiion of administrator’s authority pending action by him; how pleaded.— Under the plea of ne ungues administrator, to an action brought by an administrator in his official capacity, the defendant cannot show that the plaintiff’s authority has ceased since the commencement of the suit; that fact must be specially pleaded to the further maintenance of the action, or puis darrein continuance, according as it occurred before or after issue joined or plea pleaded.</p>

Heard before the Hon. B. B. McCrAW. The bill in this case was filed on the 11th August, 1871, by James W. Balkum, as the administrator de bonis non of the estate of Angus Cameron, deceased, against Hamlin Pludgens, as the administrator de bonis non of the estate of Benjamin Askew, deceased, and Thomas J. and J. B. Hudgens, who' were sons of said Hamlin Hudgens; and sought to enforce a vendor’s lien for the unpaid purchase-money of a tract of land.

<p>APPEAL from the Circuit Court of Cleburne.</p> <p>Tried before the Hon. Wm. L. Whitlock.</p>

Tried before the Hon. E. M. Kbils. This action was brought by B. H. Jackson, against G. L. Comer and J. W. Dreury; was founded on the defendants’ promissory note for #2,800, dated the 20th day of August, 1870, and due the 1st day of January, 1871; and was commenced on the 18th day of May, 1872.

AppeaIj from the City Court of Montgomery. Tried before the Hon. John D. Cunningham. This action was brought by Laura Missouri Mervine, against George White, to recover a mule; and was commenced on the 17th day of April, 1872. The complaint was in the form prescribed by the Revised Code, p. 674, “ For the recovery of chattels in specie; ” and the only plea was the general issue.

<p>Application for a mandamus to the Hon. Adam C. Felder, chancellor, sitting at Mobile, on. the facts stated in the opinion of the court.</p>

Tried before the Hon. John Elliott. This action was brought by Henry Nabring, against Carien Jonsen, and was commenced before a justice of the peace, on the 10th day of September, 1872.

Tried before the Hon. John D. Cunningham. This action was brought by Lethe Loftin, an infant, who sued by her next friend, against John R. Forbes, to recover damages for an assault and battery committed on her person under circumstances of great aggravation. The complaint claimed ten thousand dollars damages for the assault and battery, and one thousand dollars as special damages for medical services, nursing, &c., while suffering from the wounds inflicted on her.

Tried before the Hon. 3. McCaleb Wiley. This was a summary proceeding by the appellee, a corporation chartered under the laws of this State, by notice and motion, for a judgment against the appellant, as a defaulting subscriber to the capital stock of said corporation. The notice was signed by the treasurer of the corpox'ation, axxd was executed by the sheriff.

<p> Real Action in Nature of Ejectment.. </p> <p>Sate of decedent’s lands, by order of probate court, for division;: plhce of sale. — When a decedent’s lands, consisting of an entire tract which lies-in two or more counties, are sold for division among the heirs (Rev. Code, §§ 2090, 2221), the order of sale must be made by the probate court which has jurisdiction of the estate ; but the place of sale, which must be specified in the order, may be in either one of the counties.</p>

Tried before the Hon. J. McCaleb Wiley. This action was brought by C. & A. C. Poillon, against Morris & Blair as late partners.

The record in this case having been lost, the reporter cannot state the name of the presiding judge , in the court below, nor the facts of the case, except as they appear in the opinion of the court.

Tried before the Hon. L. R. Smith. This action was brought by Williamson H. Parker, and revived in favor of his personal representative, against Hollis & Alexander as partners; and was commenced on the 10th day of March, 1869.

Tried before the Hon. John Elliott. The appellant in this case, having a judgment against A. M. Purdy, sued out a garnishment against Robert Anderson as his debtor, which was served on the 15th June, 1871. The garnishee answered, admitting an indebtedness to said Purdy, under a contract for the building of a house not then completed, of about |200.

Tried before the Hon. E. M. Keils. This action was brought by James Clark, county treasurer of Barbour, against the appellant as a corporation.

Tried before the Pión. W. J. Haralson. This action was brought by Milton Jenkins, against William H. Cooper, and was commenced on the 3d day of March, 1869.

Heard before tbe Hon. Charles Turner. Tbe bill in this case was filed by C. C. Colton, tbe appellant, against Thomas W. Price and D. F. Richards ; and sought to enjoin said Richards, as county treasurer of Wilcox county, from paying to said Price the salary of the judge of the court of quarter sessions of said county, pending the trial of a contest of the right to said office, under proceedings instituted for that purpose by said Colton.

In the matter of the insolvent estate of Willis Blankenship, deceased, against which a claim was filed by W. Ryerson, the appellee, in these words: “ To commissions for finding purchaser for his plantation, stock, and furniture, two per cent, on the amount agreed on, which was eight thousand dollars, $240.” The administrator objected to the allowance of this claim, “ on the ground that no consideration for said claim passed from said Ryerson to said Blankenship.” On the…

<p>Appeal from the Circuit Court of Wilcox.</p> <p>Tried before the Hon. P. O. Harper.</p> <p>This was a motion by F. M. Miller, the appellant, for a summary judgment against E. C. McWilliams, as sheriff of said county, on account of his failure to make the money on an execution, which was issued on a judgment recovered by said appellant against the town of Camden. On the hearing of the motion, it was admitted that the town of Camden, as a corporation, owned no property; that the plaintiff requested the sheriff to levy the execution on the private property of the inhabitants within the corporate limits ; that he refused to do so, and returned it “ No property found.” The act incorporating the said town, and the several acts amendatory thereof, were also in evidence. On this evidence, the court rendered judgment for the defendant, overruling and refusing the plaintiff’s motion ; to which the plaintiff excepted, and which he now assigns as error.</p> <p>cited 2 Kent’s Com. 323 (mar. 279), note g, 11th ed.; lb. 316 (mar.-274), note a; Angelí & Ames on Corporations, 2d ed. pp. 25-6, note 1; lb. 499, note 1; lb. (6th ed.) § 629, note 3 ; Beardsley v. Smith, 16 Conn. 368.</p> <p>cited Dillon on Municipal Corporations, 433, 641; Horner v. Coffey, 25 Miss. 434; Van Hoffman v. City of Quincy, 4 Wallace, 535 ; City of G-alena v. Amy, 5 Wallace, 705 ; Biggs v. Johnson County, 6 Wallace, 167 ; Weber r. Lee County, 6 Wallace, 211; State, ex rel. Sherman, v. Milwaukee, 20 Wis. 87 ; Walkley v. Muscatine, 6 Wallace, 481; (Jorgas v. Blackburn, 14 Ohio, 252.</p>

<p> Bill in Equity for Injunction of Execution on Judgment. </p> <p>1. Return of execution. — The return of an execution must be made to the clerk (Rev. Code, § 2852), and is not complete when the execution is found in the sheriff’s office, after the return day, with his return indorsed on it.</p> <p>2. When equity will enjoin execution against administrator personally, on judgment against him officially. — When an execution on a judgment or decree against an administrator, to be levied de bonis intestatis, has been returned “No property found,” and the estate is afterwards declared insolvent, a court of equity will enjoin an execution against him personally, issued after the declaration of insolvency ; and it is no defence to a bill filed for that purpose, that the insolvency of the estate was caused by the administrator’s neglect to collect the solvent assets.</p>

Tried before the Hon. John Elliott. This action was brought by James E. Slater, against A. G. McGehee; was commenced on the 6th day of October, 1868, and was founded on a written instrument in the form of a bill of exchange for $1,500, drawn by the defendant on himself, dated the 22d day of May, 1866, and payable twelve months after date, to the order of the plaintiff, negotiable and payable at the Central Bank of Alabama.

<p> Trover for Conversion of Cotton Bales. </p> <p>1. What constitutes a trespass. — Peaceable entry on rented lands in the possession of a sub-tenant, by a person to whom the rent notes of the tenant have been transferred, for the purpose of securing or arranging payment of the notes by tbe sub-tenant, is not a trespass, although the notes are not due at the time, and the party entering has no legal process.</p> <p>2. What constitutes duress. —Threats of attaching a tenant’s crop for the payment of rent, made by a person who has entered for the purpose of collecting or securing the rent before its maturity, and who is accompanied by a constable, but has no legal process, do not constitute duress.</p> <p>3. When misrepresentations constitute fraud. — Generally, a misrepresentation as to a matter of law is not a fraud, in the absence of special circumstances, or peculiar relations of trust and confidence between the parties; but a misrepresentation by the holder of a tenant’s notes for the rent of land, as to his legal right in respect to the crop grown on the land, made to a sub-tenant, who was ignorant of tbe terms of the contract between tbe tenant and his landlord, and by which he was induced to surrender a legal right, would be a misrepresentation as to a matter of fact, and would constitute a fraud.</p>

Application by petition, by James Reid, Jr., for a writ of prohibition, or other remedial writ suitable to the facts of the case, to the Hon. Adam C. Felder, chancellor of the southern chancery division, sitting at Mobile, to restrain and prohibit further proceedings under a bill in chancery, filed in the chancery court at Mobile, by Cleaveland F. Moulton as complainant, against said James Reid and Rufus Dane, the sheriff of Mobile county.

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

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

Tried before the Hon J. McGaleb Wiley. This action was brought by William M. Russell against Charles H. Redding ; was commenced on the 23d day of October, 1869; and was founded on the defendant’s promissory note, which was in these words : “ $1,455.72. By the first day of January, 1869, I promise to pay A. Lane the sum of fourteen hundred and forty-five dollars, this November 25, 1867 ; ” which was signed, “ 0.

<p>Appeal from the Chancery Court of Macon.</p> <p>Heard before the Hon. B. B. McOraw.</p>

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

From the Circuit Court 'of Butler. Tried before tbe Hon. P. O. Harper.

From the City Court of Montgomery. Tried before the Hon. Jno. D. Cunningham. The indictment in this case contained but a singe count, charging that the defendant, Jerry Johnson, “did carnally know, or abuse in the attempt to carnally know, Frances Rickett, a female under the age of ten years.” The defendant, when arraigned, pleaded not guilty ; and he was tried on issue joined on that plea.

M. J. Saffold presiding, to procure the petitioner’s discharge from custody and further prosecution under an indictment, pending in said court against him, for the murder of John Keeton. The material facts are stated in the opinion of the court.

<p> Garnishment on Judgment; Contest of Garnishee’s Answer. </p> <p>1. Admissibility of parol evidence to affect deed. — A creditor, proceeding by garnishment against the grantee of his debtor, and contesting the answer under an issue on the common counts, cannot claim the benefit of a verbal promise by the garnishee, exacted from him by the debtor as a condition of the execution of the conveyance, to pay said creditor’s claim in full, when the conveyance recites, as its consideration, the garnishee’s promise to pay all the creditors of the grantors one half of their respective debts.</p> <p>2. General assignment for benefit of creditoi-s. — If a debtor makes an absolute conveyance of all his property to one of his creditors, in consideration of the grantee’s promise to pay another creditor the full amount of his debt, and to pay all the other creditors one half of their respective claims (Rev. Code, § 1867), the stipulation for the benefit of the creditor who was to be paid in full will enure to the equal benefit of all the others.</p> <p>Note by Reporter. — The foregoing opinion was delivered at the January term, 1873; and on a subsequent day of that term, in response to an application for a rehearing, the following opinion was delivered : —</p> <p>SAEFOLD, J. — The appellee asks a rehearing, on the ground that the court fell into error in supposing the plaintiff relied alone on the promise of the appellants to pay his demand in full. He tendered the matters of contest of the garnishee’s answer, in the form of a complaint in assumpsit, which lies alone, on .promises or agreements, express or implied.</p> <p>A rehearing is denied.</p>

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

<p>Application for a mandamus, or other appropriate original writ, to the City Court of Eufaula, Hon. E. M. Keils presiding, on the facts stated in the opinion of the court.</p>

Tried before tbe Hon. Jno. D. Cunningham. Tbis was an application by petition, by Tbomas G. Jones, tbe official reporter of tbe decisions of tbis court, for a mandamus to Robert T. Smith, tbe auditor, requiring that officer to draw bis warrant on tbe treasurer, in favor of tbe petitioner, for tbe amount of bis salary as such reporter for tbe month of January, 1874, expressing on its face that it was payable in the obligations of the State authorized by tbe “ Blinding Act ”…

Tried before the Hon. L. R. Smith. This action was brought by William C. Easton, against Thomas C. Clark, ás the administrator of the estate of John Louis, deceased; and was founded on an account for goods sold and delivered to said John Louis in his lifetime by the firm of Paschal & Foster, who transferred said account to the firm of Easton, Wymans & Co., by whom it was transferred' to the plaintiff.

Application by petition, by N. R. Keeling, for a writ of mandamus to the Hon. Littleberry Strange, on the facts stated in the opinion of the court.

Heard before the Hon. Adam C. Feldek. The bill in this case was filed on the 3d June, 1869, by Albert B. Brassell, against Moses McLemore ; and prayed for an injunction of an action at law, which said McLemore had instituted against said Brassell, to recover the possession of a certain tract of land, and also for general relief.

. Heard before the Hon. A. W. Dillabd. The appellees in this case submitted a motion to dismiss the appeal, on the following grounds: “ 1. Because no security for the costs of the appeal has been given. 2. Because no appeal bond has been given. 3. Because the certificate of the register in the court below fails to certify the names of the sureties for the costs of such appeal.”

Heard before the Hon. William Skinner. Jacob K. Swoope died in Lawrence county, Alabama, in March, 1841. Held: “ that the funds in the hands of said Jones as trustee, under a proper construction of the 5th clause in the testator’s will, should be equally divided between the estates of Benjamin and Francis Sherrod; and that Alice C. Banks, the complainant, having been born after the testator’s .death, is not entitled to any portion of said…

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

Heard before the Hon. Charles Turner. The bill in this case was filed on the 24th February, 1878, by the “ Tallassee Manufacturing Company Number One,” a corporation chartered by an act of the general assembly of this State, against John S. C. Glenn, the tax-collector of Elmore county; and sought to enjoin a sale of the complainant’s property by the defendant, under a levy and advertisement, for the unpaid taxes for the years 1869,1870, and 1871.

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

<p> Detinue for Watch. </p> <p>Estoppel against administrator. — An administrator cannot maintain an action for the recovery of a watch, which the friends of the intestate pawned to procure his coffin, if he was a party to the transaction, though not then the administrator, and the price of the coffin has not been paid; but proof of his presence and passive assent merely is not sufficient to defeat his action.</p>

Heard before the Hon. A. W. Dillard. The appellees in this case submitted a motion to dismiss the appeal, on the following grounds :. “ 1. “ There is no certificate identifying the appeal bond, or giving the names of the sureties thereto.” “ 2. If what purports to be an appeal bond, in the body of the transcript, be considered the appeal bond, there is only one surety to said bond.”

Tried before the Hon. L. B. Strange. This action was brought by “ R. Hightower, guardian of C. B. Geddis, a lunatic,” against W. H. Maull, B. R. Boland, and Miriam Evans; was commenced on the 20th day of January, 1866, and was founded on the defendants’ promissory note in these words: “ January 2, 1865.

Tried before the Hon. P. O. Harper. This action was brought by the appellant, an infant, who sued by his next friend, to recover damages for personal injuries sustained by him in attempting to get off the defendant’s cars, while the train was in motion, under the orders of the conductor. The court below sustained a demurrer to the orig inal complaint, and the plaintiff then filed an amended complaint, to which the court again sustained a demurrer.

<p> Ancillary Garnishment in Action on Common Counts. </p> <p>1. What demands may be subjected by garnishment. — A garnishee is required to answer as to any indebtedness on his part to the defendant, at the time of the service of the garnishment, or at the time of making his answer, and also as to any future indebtedness that may arise under any existing contract (Rev. Code, § 2944); and judgment may be rendered against him for any such indebtedness admitted in his answer.</p> <p>2. Admissibility of other garnishments as evidence. — When a garnishee admits an indebtedness in his answer, or it is established against him on a contest of his answer, he may reduce the amount of the plaintiff’s recovery against him, by showing that another creditor has recovered a judgment in garnishment against him, which he has paid; but he cannot complain of the rejection of such garnishment and judgment as evidence, when he does not show that his indebtedness was less than the amount of the two j udgments rendered against him.</p>

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

In the matter of the estate of William Hawkins, deceased, on the application of Mrs. Delia M. Morgan, who was the widow of said intestate, to set aside a decree rendered by said probate court on the 5th Angust, 1864, on final settlement of the accounts of S. E. Catterlin, the administrator; which decree was in the following words : “ This day comes up for final action and decree, according to previous order of the court, the account current and vouchers heretofore filed by…

<p>Appeal from the Circuit Court of Tuskaloosa.</p> <p>Tried before the Hon. ¥m. S. Mudd.</p>

In tbe matter of tbe insolvent estate of Willis Blanlcensbip, deceased, against wbicb a claim was filed by Larken A. Wortbam, as tbe administrator of James P. Nimmo, deceased, wbicb was contested by the appellant, as the administrator of said insolvent estate. Tbe allowance of tbe claim, and tbe trial of tbe contest by the court without tbe intervention of a jury, are the matters here assigned as error. Tbe material facts are stated in tbe opinion of tbe court.

Heard before the Hon. William Skinner. The bill in this case was filed on the 23d December, 1869, by Mrs. Mildred A. Barclay, the wife of Dr. A. M. Barclay, who sued by her next friend, against her said husband, and also against Henry B. Plant, John A. Steele, Mrs. Julia A. Blocker, and Mrs. Nancy Beaumont; and sought to recover the possession of certain lands, which the complainant claimed under a deed from her said husband, as hereinafter more particularly stated, to…

Heard before the Hon. Adam C. Felder. The bill in this case was filed by L. J. Bryan, against J. E. Bruner, and sought to enjoin the defendant from exercising the duties, or receiving the emoluments of the office of sheriff of said county of Lowndes.

Tried before the Hon. John Elliot. This action was brought by Mrs. Cornelia Godfrey, as the administratix of the estate of her deceased husband, Abner M. Godfrey, against Francis H. Chamberlain, and was commenced on the 31st day of October, 1871.

In the matter of the final settlement of the accounts of William A. Ashley, deceased, as guardian of Mary Sanford Jones (now the wife of Edmund Martin), by Mrs. M. A. Ashley, his administratrix and widow. Letters of guardianship on the estate of said Mary Sanford Jones were granted to said William A. Ashley, by the probate court of Conecuh county, in the latter part of the year 1865, but the precise time is not shown by the record.

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

Heard before the Hon. Adam C. Feldeb. The bill in this case was filed on the 1st day of April, 1870, by Robert Y. Ware and the children and heirs-at-law of James H. Ware, deceased, against Evalina Wright and others, who were the heirs-at-law of William C. Wright, deceased; and sought to restrain and enjoin the further prosecution of an action of ejectment, which the defendants had instituted to recover the possession of a certain tract of land, which had belonged to said…

Heard before the Hon. William: Skinner. The appellees in this case, claiming to be the heirs-at-brar and distributees of Allen Christian, deceased, filed a bill in the chancery court of Jackson county, on the 24th day of February, 1869, against Samuel G. Mead, the administrator of said decedent’s estate, to compel a settlement of his administration, distribution of the unadministered assets of the estate, and for general relief.

Tried before tbe Hon. John Elliott. This action was commenced on tbe. lltb day of May, 1872, by summons and complaint, in tbe name of the “ State of Alabama, on tbe information of Jesse Carter, Nelson W. Perry, Willis Gr. Clark, Henry B. Willey, and Thomas Manser, who also are joined as plaintiffs with the State of Alabama, against Caleb Price, Joseph C. Smith, Ered Bromberg, A. E. Buck, a.nd Hugh Monroe.

Tried before the Hon. John Elliott. This action was brought by James Allen, against Erastus S. Perryman, and was commenced on the 5th December, 1870. Its object was to recover from the defendant his aliquot proportion (alleged to be $352) of a judgment which Garnhart, Whitaker & Sons, and others, had recovered against said Allen, Perryman, and others, and which the plaintiff had paid in full under execution.

Heard before the Hon. Adam C. Felder. The bill in this case was filed on the 16th March, 1869, by B. W. Walker, against the administrator de bonis non of the insolvent estate of Henry B. Wigginton, deceased; and Benjamin Harrison was also joined as a defendant, but was only a nominal party.

Tried before the Hon. P. O. Harper. The transcript in this case has been lost. Nothing but the opinion has come to the hands of the reporter.

Heard before the Hon. A. W. Dillard. The bill in this case was filed on the 10th of January, 1872, by Mrs. Celestine Eslava, against Albert… Held: that the complainant’s declaration of her willingness to abide by the new agreement, as alleged in her bill, was tantamount to an offer to do equity; and as the respondent, while denying this new agreement, declared his willingness to accept the principal of his debt, with legal interest, there was no obstacle to a decree for the…

Heard before the Hon. A. W. Dillard. The opinion in this case was delivered at the June term, 1872. Nothing but the opinion has come to the hands of the reporter.

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