Volume 52 — Alabama Reports

Lauderdale Circuit Court. Tried before Hon. James S. Clark. The appellant, John Powell, was convicted of murder in the second degree for killing one James Winston, and sentenced to the penitentiary for twenty years.

Tried before Hon. P. O. Harper. The opinion states the case. The court below should not have qualified the charge given at appellant’s request. 43 Ala. 45; 45 Ala. 89. Such action is in plain violation of the statute, and will necessitate a reversal. 1. The charge given might properly have been refused. 39 Ala. 674. It certainly could not deprive the court of the right to explain it. Morris v. State, 25 Ala. 57; Turbeville v. The State, 40 Ala. 715. 2.

Tried before Hon. James Q. Smith. A capias, issued from the county court, having been placed in the hands of Bryan, sheriff of the county, and returned “ non esf,” the county solicitor, after giving the sheriff due notice, moved the county court (Hon. J. V. McDueeie, probate judge, presiding) for judgment in the name of the State, for the use of the county, against the sheriff, to recover of him a fine of one hundred dollars for his failure, from want of due diligence, to…

This was an application, made at the last term, to set aside the judgment of affirmance then rendered, and to reinstate the case upon the docket, &c. Rice, Jones & Wiley urged, in support of the application, that as the appeal gave jurisdiction, and the parties believed that consent of counsel was as valid to cure omissions in a bill of exceptions as in other parts of the record, although mistaken in this, that the case was one in which the discretion of the court should be…

Tried before Hon. J. A. Muraos. The indictment, which was found March 24,1874, charges that appellant and other persons, whose names were to the grand jury unknown, “ did engage in or carry on the business of commission-merchants,” without license, &c. The State proved that the “Alabama Warehouse Company carried on the business of commission-merchants during the months of January and February preceding the finding of the indictment; that said company was a corporation under…

Tried before Hon. W. L. WHITLOCK. The appellant, Randall Hensly, was indicted and convicted under § 3618 R. C. for retailing spirituous liquor without license.

<p> Indictment for Larceny. </p> <p>Oath of jury; what recital as to sufficient to uphold conviction. — A recital in tlie record that the jury, in a criminal case,.were “ sworn and charged well and truly to try the issue joined,” sufficiently shows that the statutory oath was administered to them.</p>

Tried before the Hon. J. McCaleb Wiley. The indictment in this case, which was returned and filed in the circuit court of Randolph, omitting caption, &c., charged that before the finding thereof, Simeon W. Childs “ was engaged in the business of retailer of spirituous, vinous, or malt liquors, in a place not an incorporated city, town, or village, in said county, without license and contrary to law, against the , peace,” &c., &c. The defendant first pleading not guilty,…

Clair. Tried before Hon. W. L. Whitlock. The facts are sufficiently stated in the opinion. The statute prescribes the manner in which the garnishee must set up the claim of a third person. When the garnishee makes a general denial of indebtedness, the plaintiff is not put on notice as to any outside claim ; has no means of obtaining evidence as to it, and is liable to be surprised on the trial by it.

<p>Appeal from Marengo Circuit Court.</p> <p>Tried before Hon. L. R. Smith.</p> <p>The facts are stated in the opinion.</p>

The name of the presiding judge is not stated on the record. The appellants were convicted of an assault with intent to murder. Being arraigned at the term at which the indictment was found, they filed several pleas in abatement, all of which resolve themselves into an objection that the grand jury which found the indictment was not a legal body, because summoned by a person who was not the sheriff.

Tried before Hon. J. McCaleb Wiley. The appellants, William Alsabrooks and Rebecca Bowen, were indicted and convicted for living together in adultery or fornication, on an indictment found at the Spring term, 1873, of the circuit court of Randolph.

Tried before Hon. J. MoCaleb Wiley. The appellants were indicted and convicted for the larceny of two “ yearling cattle.” The testimony for the State tended to show that appellants, passing by the prosecutor’s field, turned the yearlings in with a drove of their own cattle and sold them in Montgomery.

Tried before Hon. J. MoCaleb Wiles'. The opinion sufficiently states the facts. Marshall County v. Jackson County (36 Ala. 613), although virtually overruled by Randolph County v. Baldwin (46 Ala. 397), is sound law, and ought to be reinstated. Randolph County v. Baldwin (46 Ala. 397) overrules the former decisions.

Tried before Hon. Luther R. Smith. The appellant, Alfred Giles, was indicted and convicted for the wilful failure to appear and answer a criminal charge, after being released “ on his own recognizance, without security.” The indictment, omitting the caption, &c., charges, that before the finding thereof, the defendant was arrested by one Moanier, a duly qualified marshal, by appointment of a named notary public, on a warrant issued by said notary public charging said…

Heard before Hon. R. L. Watkins. The facts are fully stated in the opinion in chief and the response to the application for a rehearing. 1. From 1865 to 1868, it was conceded by every department of the state government of Alabama that executions issued on judgments rendered during the war were valid. Foster v. Moody, January term, 1873. 2.

<p> Motion to dismiss Appeal. </p> <p>Appeal; when motion to dismiss is loo late. — A motion to dismiss an appeal for want of a certificate of appeal comes too late after joinder in error, if the ease is one of which the supreme court can take jurisdiction by appeal.</p>

Tried before Hon. James Q. Smith. In an action of trover brought by appellant, Northington, as administrator of Euphrenia Hall, deceased, against appellee, * Faber, to recover damages for the conversion of certain personal property, the following state'of facts appeared: — In 1867, Dixon S. Hall, husband of said Euphrenia, executed a trust deed or mortgage to A. G. Smith, as trustee for said Euphrenia, upon the property sued for, which recited that in 1858, he (Hall) had…

Tried before Hon. J. Q. Smith. The appellee, the tax-collector of Lowndes county, applied to the circuit court for a, mandamus compelling the appellant, as county treasurer, to receive in settlement of the taxes of the county, warrants or orders on the treasury, which appellee had collected. On a hearing, the circuit court awarded the mandamus, and this appeal is prosecuted for a reversal of that judgment.

<p> Appeal from Judgment of Circuit Court refusing Mandamus to compel Speaker of House of Representatives to certify Account of Member of General Assembly for Mileage, 8?c. </p> <p>1. Statute enacted in terms of a former statute which has been construed; presumption as to legislative construction. — The legislature in reenacting a statute substantially in the terms of a former statute which had been judicially construed, will be presumed to^have put that construction upon the statute which the prior act had received.</p> <p>2. Session of general assembly; lohat constitutes. — The sittings of the general assembly, although extended in the constitutional mode beyond thirty days, and an adjournment takes place for a recess of- several-weeks, constitute but one session.</p> <p>3. Adjournment; resolution as to, force and effect of. — A joint resolution was adopted by both houses of the general assembly without having been read on three several days in each house or presented to or approved by the governor, providing that when the two houses adjourned on the 17th day of December, 1874, they should stand adjourned until the 15th day of January, 1875 : “provided that no member of the general assembly shall be entitled to receive mileage in going to and returning from his home: ” Held, 1st. It was'not necessary that the resolution should be read on three several days in each house, nor that it should be presented to, or approved by, the governor. 2d. The proviso was germane to the resolution. 3d. Under the constitutional provisions in regard to adjournments, the resolution, although not strictly a law, had the force of law, and suspended, as to that adjournment, section>49 of the Revised Code, which, as construed in Ex parte Pickett (24 Ala. 91), entitled members to mileage in going to and returning from their homes during recess. 4th. The resolution was binding upon all the members, whether they voted for or against its passage.</p>

On the bearing of the application of John D. McClannahan, a minor, by next friend, to vacate,.annul, and set aside a sale of lands of the estate of James McClannaban, made under order of the probate court in tbe year 1860, the following facts were proved : — ■ - • 1. On tbe 10th of December, 1860, W. W. Pettus, administrator of James McClannahan, filed in tbe probate court bis sworn petition praying a sale of- his intestate’s lands, for the purpose of paying debts.

Tried before Hon. James Q. Smith. Jane Atchison, appellee, brought suit and recovered judgment against Broughton, the appellant, in an action of trover, for the conversion of two and a half bales of cotton. In January, 1871, one J. M. McDonald rented land from plaintiff for a year, for which he agreed to pay three and a half bales of cotton as rent.

<p> Action on Bill of Exchange. </p> <p>Error; what not ground of. — It cannot be assigned for error that a judgment rendered on, and corresponding with, the verdict, is for a greater amount than claimed in the complaint. The remedy in such a case is by motion for new trial in the court below.</p>

Heard before Hon. Adam C. Felder. This was an appeal from an order refusing to dissolve an injunction. ' The case as made by the bill and the answer, so far as it is material, may be thus stated: — At the general election in November, 1871, appellee Robinson was duly elected tax-collector of Montgomery county, and after having been commissioned and duly qualified, entered upon the discharge of the duties- of the office, and so continued up to the filing of the bill.

Tried before Hon. J. Q. Smith. Appellee brought this suit against appellant to recover damages for the conversion of a horse which was alleged in the complaint to be the separate statutory estate of his wife. There was a jury trial and verdict for the plaintiff, after which the defendant (appellant) moved in arrest of judgment on the ground that the complaint showed on its face that plaintiff bad no cause of action against him.

J. A. Minnis presiding judge, upon a state of facts fully set forth in the opinion. 1. The Controlling question in this case is, whether the power of our legislature over the “ compensation ” of the commissioner of the Bureau of Industrial Resources is unlimited. 2.

<p>Appeal from Circuit Court of Montgomery.</p> <p>Tried before Hon. James Q. Smith.</p> <p>The facts are sufficiently stated in the opinion.</p>

<p>Appeal from Chambers Probate Court.</p> <p>The facts are stated in the opinion.</p>

<p>The judge of the first judicial circuit (Hon. George H. Craig) having refused to approve the official bond tendered him by the relator, George E. Harris, he now applies to this court for a mandamus to compel him to do so. The issuance of a rule nisi was waived, and the following facts agreed upon, which were to be taken as if shown in answer to the rule: —</p> <p>At the last general election relator was duly elected sheri of Hale county. The count of votes cast at that election, in the county of Hale, was not finished until the 10th day of November, seven days after the election. Returns of the election were then made by the supervisors to the secretary of state, but were not received by him until the 20th day of November. On that day he issued notice of the election to the persons elected, and among others to the relator, as provided by the 54th section of the election law of 1873. On the 19th day of November the probate judge certified to the governor that the relator had failed to file in his office an official bond as sheriff. On November 25th the governor appointed and commissioned one Tucker as sheriff of the county, who executed an official bond, approved by the judge of the first judicial circuit, and the same was filed in the probate judge’s office on the 1st day of December, when said Tucker qualified and entered upon the discharge of the duties of' the office. On the next day the relator presented to the judge of the first judicial circuit his official bond as sheriff, sufficient in form and sureties, and demanded its approval, which was refused, because more than fifteen days had elapsed since his election.</p> <p>1. Petitioner could not enter upon the office before he had given bond and taken the oath of office. His bond could not be filed until approved. To demand the approval of it, he must show that he has been elected, and the legal evidence of the election is his certificate. The balloting merely is not the election ; the certificate is the evidence upon which the person elected and the officer approving the bond must act. Until the certificate issues, there is no evidence of the election. Construing the act of August 1st, 1868, requiring the circuit judge to approve the bond, with the requirement of the election law, it must be held that the time within which the bond is to be given commences to run only from the issue of the certificate of election. People v. Maywoon, 5 Mich. 150 ; People v. McManus, 34 Barb, 620 ; State v. Steen, 14 Mo. 223 ; 16 Michigan, 56. Otherwise the law will hold the candidates, and the judge who'is to approve the bond of the officer elect, to a knowledge of facts, the ascertainment of which is prescribed by certain evidence, long before the officers charged with that duty have themselves ascertained and declared the result.</p> <p>2. Mandamus is the only remedy petitioner has. Ex parte Oandee, 48 Ala. 386. Sprowl v. Lawrence, 33 Ala. 674 ; Wammach v. Halloway, 2 Ala. 31.</p> <p>1. The law expressly requires the bond to be filed “ within fifteen days after the election.” The argument of inconvenience is not sound. Under the Constitution an officer, by reason of the loss of his certificate in transmission through the mails or other cause, might be prevented from qualifying for a considerable time; yet his term would not thereby be lengthened. The sheriff’s term begins to run from the day of his election. The “ certificate ”fis not the election, but merely evidence of it, and the fifteen days commence to run from the election. 9 Kansas, 827; 48th Ga.; 19 Howard, 79. ■</p> <p>-2. Although this court in 43d Ala. (State ex rel. v. Myj has decided that mandamus is the proper remedy in a case like -this, it is submitted that the weight of authority is against the decision. The decision in the mandamus case does not bind the contestant who is in office.</p>

Circuit Court of Calhoun. Tried before Hon. W. L. Whitlock. Detinue by Sumner against Woods to recover a sewing-machine. Sumner had previously delivered the machine to one J. W. Smith, then residing in Calhoun county, who executed four promissory notes therefor on 22d January, 1873, falling due respectively four, eight, twelve, and eighteen months after date.

Heard before Hon. William Skinner. The point decided sufficiently appears from the opinion. analyzed the testimony, contending that it was vague and uncertain and did not authorize the decree.

This was an application for mandamus to compel the judge of the ninth judicial circuit (Hon. J. E. Cobb) to approve relator’s official bond as probate judge of Macon county, which the circuit judge had refused to do, because he deemed the sureties insufficient for reasons stated in his return, which it is not necessary to set forth here.

<p> Appeal from. Order revolting Letters of Apprenticeship. </p> <p>Appeal; what order will not support. — An appeal does not lie from the order of the probate judge revoking and annulling letters of apprenticeship.</p>

Tried before Hon. W. J. Harralson. Appellee, Green, brought this action against appellant, Lankford, for use and occupation of land. Under the rulings of the circuit court the jury returned a verdict for the plaintiff. There were numerous exceptions to the ruling of the court below which it is unnecessary to set forth, as the case turned upon the right of the plaintiff, under the facts stated in the opinion, to maintain the action.

Tried before Hon. W. L. Whitlock. This was a summary proceeding commenced by the appellee, Hamilton, by motion in the circuit court, against Daniels, the sheriff, and his sureties, for his failure, from want of due diligence, to make the money on a certain execution placed in his hands against William Johns and George Agnew. The motion was directed to the sheriff, by name, “and his sureties,” without anywhere stating their names.

<p> Appeal from, Order awarding Peremptory Mandamus. </p> <p>1. Circuit judge; authority to approve sheriff’s bond. — Under the law of force on the 27th day or December, 1871, a circuit judge had no authority to approve the bond of a sheriff elected that year.</p> <p>2. Mandamus; when does not lie. — A probate judge cannot be compelled by mandamus to file and record a sheriff's bond, approved by an officer who had no authority to do so.</p>

<p> Bill of Exceptions. </p> <p>1. Bill of exceptions; loliat indispensable to. — The signature of the presiding judge is indispensable to the validity of a bill of exceptions, and alone authorizes its incorporation in the record.</p> <p>2. Unsigned bill of exceptions, disregarded. — The appellate court, ex mero motu, will disregard an unsigned bill of exceptions, although no motion is made to strike it out of the record.</p>

<p> Bill in Equity to foreclose Mortgage. </p> <p>1. Preponderance of testimony ; when does not control decree. —In ascertaining the existence of facts from conflicting evidence, the chancellor is not necessarily governed by the preponderance of the testimony. The material inquiry, for him, is whether the evidence generates in his mind a clear and rational belief of the existence of the fact affirmed, essential to relief sought or the defence interposed.</p> <p>2. Same; rule in passing upon finding of lower court in appellate tribunal. — The chancellor’s finding upon facts will not be reversed merely because the appellate court cannot see that the decree is right; it must be satisfied that it is wrong. The presumption in favor of the judgment of the court below prevails as well to its findings upon the facts as to its rulings upon the law.</p>

Tried before Hon. W. L. Whitlock. Appellant’s husband, William C. Luke, alias William McAdams Luke, having been murdered by disguised persons, on the 12th of July, 1870, in Calhoun county, Alabama, she brought this suit against the county, under the provisions of the “ Act to suppress murder, lynching, and assaults and batteries,” approved Dec. 28th, 1868, to recover $5,000, the penalty given by the statute against the county. Appellant never resided in the United States.

<p> Trover for Conversion of Cotton. </p> <p>Landlord; what has not sufficient interest in, to mortgage. — The landlord has no such interest in, or title to, crops grown on the rented lauds as can be made the subject of a valid mortgage.</p>

Heard before Hon. Adam C. Feldeb. The bill in this cause was filed by the appellants against the appellees on tbe 17th day of February, 1878. Held: as it had before held, that an administrator’s bond being recorded in the same court in which the estate of the surety was administered, and being an official document, was “ always in a state of presentation.” See Piekson’s Adm’r v. Helm, 2 Smed. & M.; Harrison v. Harrison, 39 Ala. 1.

<p>Appeal from Circuit Court of Limestone.’</p> <p>Tried before Hon. James S. Clark.</p> <p>The opinion states the case.</p>

This was a petition filed in the supreme court, on the 17th day of July, 1870, by A. B. Watson and his wife, formerly A. V. Stone, praying that a judgment of the probate court of Lowndes county, rendered on the 25th day of November, 1865 (whereby her guardian, Warren T. Stone, on his final settlement was, as petitioners allege, erroneously and improperly allowed credit for certain moneys invested in Confederate bonds and treasury notes), and tbe judgment of affirmance…

Tried before Hon. M. J. Sapeóle. An attachment, issued by a justice of the peace and returnable before him, at the suit of appellees and against one Muse, was levied upon a bag of cotton as his property. Appellant thereupon made the usual affidavit and bond, and a trial of the right was had before the justice, and from his decision, in favor of appellees, an appeal was taken to the circuit court.

Tried before Hon. M. J. Saeeold. This suit was instituted by appellant, as administratrix of the estate of Charles W. Hill, deceased, on the 8th day of March, 1866, on a note given by appellees on the 10th day of February, 1863, and payable on the 1st day of March, 1864, to appellant as such administratrix.

Tried before Hon. L. R. Smith. This action was commenced August 27, 1872, by Jacob Michael, Jr., against the county of Marengo, for work and labor done for defendant during the years 1868 and 1869, by plaintiff, as sheriff of said county, and in discharge of his duties as such sheriff, in divers causes and prosecutions in the circuit and county courts of said county, wherein the State of Alabama as plaintiff failed to convict, or said prosecutions were dismissed on plea of…

Tried before Hon. Litthek R. Smith. This was a suit commenced on the 10th day of March, 1871, by appellees against appellants, on an account for goods, wares, and merchandise sold during the year 1869, including the month of January, and it was sought to subject the statutory separate estate of the appellant Mrs. Pippin, wife of George Pippin, to payment of said account, on the ground that the goods, wares, and merchandise were articles of comfort and support of the…

Tried before Hon. L. R. Smith. This was an action by appellee against appellants for the breach of a contract. The testimony showed that appellants entered into a contract, verbally, with appellee, by which the latter engaged on December 21st, 1870, to clerk for appellants for a year, commencing on the 22d day of December, 1870, and ending on the 22d day of December, 1781, at a given sum, per month, and that appellants committed a breach thereof in June, 1871.

Heard before Hon. A. W. Dillard. The appellant filed on tbe 4tb day of October, 1872, a bill in chancery against appellees as administrators of the estate of J. J. Little, deceased, alleging that on the 7th day of October, 1866, appellant and said intestate “ entered into copartnership together under the name of Little & Little, as farmers, &c., for the purpose of carrying on the business of farmers and planters on joint account, and upon an equal division of the profits;…

<p>Appeal from the Circuit Court of Choctaw County.</p> <p>Tried before Hon. Luther R. Smith.</p> <p>The facts are set forth in the opinion.</p>

Heard before Hon. A. W. Dillakd. The bill in this case is set forth, in the report of the former appeal (47 Ala. 429). While sgid appeal was pending in this court, letters of administration were granted on the estate of Thomas Borroughs, and a suit at law was commenced against said administrator by complainant, on the same cause of action sought to be enforced by his bill.

<p> Assumpsit for Goods and Merchandise sold. </p> <p>Complaint; amendment of. — A complaint by two persons, suing as late partners, trading under a firm name, on an account contracted with them, may he amended by striking out one plaintiff and declaring on the indebtedness as a cause o! action in favor of the remaining plaintiff alone.</p>

Heard before Hon. John A. Minnis. The defendant, Jake Wesley, was indicted for the murder of Ben. Jarratt. It does not appear in the bill of exceptions that the defendant was served with a copy of the indictment, together with a list of all the jurors summoned in the cause, but the judgment entry recites that defendant acknowledged the delivery thereof to him one entire day before the trial.

Tried before Hon. James Q. Smith. The appellant, Jordan, was indicted under § 3643 of the Revised Code of Alabama, for countersigning a paper “ for the purposes of money, or for general circulation, without authority of law.” The indictment contained a copy of the paper charged to have been countersigned, which was in the following words and figures: — “ Tallassee Manufacturing Co. Store. Good for (15) Fifteen Cents, (15) in Merchandise. On the book, W. O. Norrell.

<p>Appeal from Russell Circuit Court.</p> <p>Tried before Hon. James E. Cobb.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from Circuit Court of Chambers. •</p> <p>Tried before Hon. Littleberry Strange.</p>

<p>Appeal from Circuit Court of Sumter.</p> <p>Tried before Hon. Luther R. Smith.</p>

Heard before Hon. Adam C. Feldek. This was a bill in equity filed on the 17th day of August, 1871, by appellants, against the mayor, aldermen, and common council of Mobile; Martin Plorst, mayor, R. M. Quinn, chief of police, and M. Phillips and Kassens, assistant chiefs of police, praying that the defendants be perpetually enjoined and restrained from interfering with or disturbing complainants in the enjoyment of the franchise and privileges which enured to them, or in…

<p>Appeal from the City Court of Montgomery.</p> <p>Tried before Hon. John A. Minnis.</p> <p>The facts are stated in the opinion of the court.</p>

Heard before Hon. Charles Turner. This was a bill filed by Laura Bell against B. H. Craig, as administrator de bonis non of the estate of one M. Hildebrandt to enjoin Craig as administrator, from selling certain lands therein described, under a decree of the probate court of Dallas county.

<p> Action on Promissory Note. </p> <p>1. Variance ; what not material. — A note payable “ by ” the first day of November, 1870, to “John L. Dunham, ag’t or bearer,” may be properly declared on as payable to John L. Dunham “ on ” the first day of November, 1870.</p> <p>2. Plea, what demurrable. — An unsworn plea by .the maker that the plaintiff is not the owner of the note sued on is demurrable, although on motion it would be stricken from the files.</p> <p>3. Same; what frivolous. — A plea to an action for the price of guano, that inspection laws passed long subsequent to the sale had not been complied with, is frivolous, and should be stricken from the files.</p> <p>4. Evidence; what irrelevant. —Proof that third persons used some of the same kind of guano as that for the price of which defendant is sued, and that it was “worthless,” is irrelevant; so also is proof that the guano had never been inspected — the inspection laws having been enacted after the sale.</p> <p>5. Worthlessness of article sold; when no defence to recovery of price. — The unsoundness or worthlessness of an article purchased is no defence to a recovery for the price, when there was no warranty, false representation, or fraudulent concealment.</p> <p>6. Charge; what may be refused. — A charge not moved for in writing, or asserting several legal propositions, any one of which is incorrect, is properly refused.</p>

Heard before the Hon. R. S. Watkins. This was an appeal from an order appointing a receiver, made “ at chambers in vacation ” the day before the bill was filed with the register. No notice of the application was given the defendants. The other facts, so far as material, will be found in the opinion. The . appointment of a receiver cannot be made until the bill is filed. R. C. § 3329. The suit is not commenced until then. 7 Met-calf, 161; 1 Burril Law Die. 625; 1 Bouvier, 524.

Tried before Hon. J. McGaleb Wiley. Kimmey sued Calloway to recover tbe price of six beef cattle which he alleged he had sold to him. The plaintiff opened his case and laid his evidence before the jury.

. Tried before Wm. Cooper, Esq., an attorney of the court, the presiding judge being incompetent. The payee of a note executed by appellant for rent of land transferred it by written indorsement to the apppellees Westmoreland and Trousdale. They, on the ground that appellant had removed a portion of the crops grown on the rented premises, without the consent of the landlord, sued out an attachment which was levied on cotton grown on the premises.

<p> Indictment for Murder. </p> <p>1. Immaterial averment; what need not be proved. — An allegation in the indictment that the defendant is “ a freedman,” is mere surplusage, and should be disregarded. That fact, under our laws, is neither descriptive of the fact or degree of the crime nor material to the exercise of jurisdiction.</p> <p>2. Bill of exceptions; construction of. — Where the bill of exceptions states that “ the defendant requested the following charges in writing, which the court refused, and to the refusal of the court to charge as requested the defendant duly excepted,” the ruling of the court below will be upheld, if any one of the charges requested is erroneous.</p>

<p> Bill in Equity to enjoin Judgment at Law. </p> <p>1. Suretyship; what does not create presumption of. — The order in which the makers sign a promissory note, of itself raises no presumption of the relation of principal and surety between them; as between themselves, this may be shown by parol, but not to the prejudice of a stranger unless he had notice.</p> <p>2. Surety ; what wilt not discharge. — Mere passiveness or delay On the part of the creditor, in the absence of any direction to proceed, to enforce his legal remedies — e. y., as where, before levy, he suspends execution — will not discharge the surety.</p>

This was an application for a mandamus to compel the judge of the Ninth Judicial Circuit (Hon. H. D. Clayton) to transfer the trial of an indictment against petitioner pending in the circuit court to the city court of Eufaula. The facts upon which the application was based are set forth in the opinion.

This was an application by the attorney general, on behalf of tbe State, for mandamus to compel tbe judge of the circuit court of Montgomery to strike from tbe docket a case therein pending, wherein one W. A. C. Jones was plaintiff, and State of Alabama defendant, on the ground that the law authorizing suits against the State bad been repealed, — a like motion to strike tbe case from tbe docket having been overruled by the circuit court.

Heard before Hon. R. S. Watkins. This was a bill in equity filed by A. H. Jones as administrator de bonis non of the estate of Nathan Boddie deceased, against Boddie’s heirs at law and the children of a deceased heir, James S. Boddie (upon whose estate Jones also administered), praying a settlement of the administration in chief and of the administration de bonis non, and an account of advancement made by the intestate in his lifetime to his heirs and distributees, and of…

Tried before Hon. J. McCaleb Wiley. The opinion states the case. The evidence did not contradict or vary the terms of the mortgage. Its effect was substantially to show notice of a prior lien, and also an estoppel on the part of the plaintiffs. The effect of the evidence was to incorporate into the mortgage a new stipulation, appellant, although not a party, being privy to it. 22 Ala. 233; 21 Ala. 797 ; 40 Ala. 599.

<p> Motion to dismiss Appeals. </p> <p>Appeals; practice as to amendment of. — Our law and practice do not favor the dismissal of causes from the appellate court for defective appeals which may be amended. In the present cause two appeals were taken to the same term from the same final decree; one merely giving bond for costs, the other superseding the same final decree and an order confirming a sale under it. Both appeals were defective for want of proper parties. On motion to dismiss, and counter motion for leave to amend, the court dismissed the first appeal, but retained the cause under the last, with leave to appellants to perfect the appeal on application during the term.</p>

Tried before Hon. J. McCaleb Wiley. The opinion states the case. The contract was complete in Georgia, and the Alabama inspection laws have nothing to do with the case. 1 Parsons on Contracts, 524; McIntyre v. Parker, 3 Met. 207. Independent of this, a fair construction of the inspection law of this State would prevent its operation on this contract.

Tried before Hon. J. McCaleb Wiley. Appellee Adams brought suit against appellants, as sureties, upon an attachment bond which they and their principal, James Olive, executed on the 18th day of October, 1869, assigning as breaches that the attachment was .wrongfully sued out, and that they had failed well and truly to prosecute it.

This was a motion to dismiss an appeal, on grounds which are fully stated in the opinion. The wife waived her rights by bill, electing to proceed against the property as her husband’s, even if on the facts she could possibly acquire an estate on the lands, which is denied. The appellant belongs to a class favored by courts of equity; in a certain sense, is a “ ward of the court.” The statute is remedial and beneficial in its purpose, and should be liberally construed.

Tried before Hon. James Q. Smith. Tbe appellant, B. Thomas Cousins, sued the defendant Jackson alone, on a bond as surety of one Morris Cousins, the administrator of appellant’s father’s estate, to recover the amount of a judgment rendered against the administrator in the probate court on the 9th day of November, 1860. The suit was commenced on the 25th of March, 1870, and a trial had at the spring term, 1873, which resulted in a verdict for the defendant.

Appear from Lawrence Chancery Court. Heard before Hon. B. L. Watkins. This was a bill in equity filed by the appellants, Sophia Gibson, and Bobert W. Banks, and Alice C., his wife, against Walter S., and W. C. Sherrod, and E. P. Shackleford, the appellees, seeking to charge certain lands with the payment of pecuniary legacies given by the will of Henry C. Sherrod, who at the time of his death was seized in fee of an undivided half interest.

Tried before Hon. James S. Clark. The opinion states the case. The plea was bad, because the process, on the facts stated, was void. Mere “ false pretence ” in obtaining goods is no offence whatever ; there must be an intent to injure or defraud. O’ Connor v. State, 30 Ala.' 13. See also Duckworth v. Johnson, 7 Ala. 580.

Tried before Hon. E. M. Keils. Jacob Lippman & Bro. brought suit, on the 23d day of October, 1873, against Beeson to recover the amount of a bill of exchange drawn by them on him, and accepted by him on the 18th of April, 1873, payable to their order ninety days after date. On issue joined on plea of payment and the general issue there was a verdict for plaintiffs.

<p> Action against County on Allowed Claim. </p> <p>1. County; on what claim suit against, cannot he maintained. — Suit cannot be maintained against a county on a claim which has been audited and allowed without reduction.</p> <p>2. Same; remedy to compel payment. — Mandamus will.lie, if the commissioners’ court refuses to act, to compel the collection of such tax as the law authorizes to pay such claims. After this, if the treasurer fails to pay them in their order, section 930 of the Revised Code furnishes an adequate remedy.</p>

Tried before Hon. J. McCaleb Wiley. The point on which the case turns is sufficiently stated in the opinion. The charge given ex mero motu invaded the province of the jury. 2 Ala. 310; 48 Ala. 420 ; 28 Ala. 510. Under the facts of the case, and the decision in Garrett's Adm'r v. Garrett, 27 Ala. 687, the charge excepted to cannot be held an invasion of the province of the jury.

<p>Rehearing under Section 2814 of Rev. Gode.</p> <p>1. Motion to quash; when should he overruled.— A petition for rehearing at law should not be dismissed and the supersedeas quashed, on a mere general motion not pointing out any specific defect. Such a motion is in effect a mere general demurrer.</p> <p>2. Rehearing at laxo; what necessary to axxthorize. — 'To authorize a rehearing at law, under the statute, there must concur a valid defence, the failure to make it (without fault on the part of the petitioner) resulting from surprise, accident, or fraud, and the exercise of all reasonable diligence to interpose the defence before judgment.</p> <p>3. Same. — Where the failure to make the defence was due to the accidental absence from sickness of the witness by whom the proof was to be made, it must be shown that he was the only witness by whom the defence could be established; a rehearing not being authorized on account of the failure to introduce mere cumulative or corroborative evidence.</p>

<p> Bill in Equity for Assignment of Dower. </p> <p>1. Contract, rescission of on ground of fraud; allegations as to. — He who seeks the rescission of a contract on the ground of fraud or undue influence must show his right to relief by distinct and pointed allegations clearly proved.</p> <p>2. Dower; consideration for renunciation of. — The wife, as the consideration on which she will renounce her right of dower, may require a consideration enuring solely to her; if she fail to exact this, her release will be good if supported by an adequate consideration moving to the husband alone.</p> <p>3. Same. — A verbal promise to the husband by one who had purchased his lands at mortgage sale, that if the husband and wife would execute a quitclaim deed to these same lands, which ivere then about to be sold under executions the lien of which was superior to the mortgage, the promisor would purchase at that sale also and give the husband better and easier terms of redeeming than allowed by law, is a sufficient consideration moving to the husband to support the wife’s release of dower. This consideration may be shown notwithstanding the deed express a nominal consideration in dollars.</p> <p>4. Fraud and undue influence; what does not constitute. — Mere persuasion, unaccompanied by falsehood, undue concealment, or delusive promises, or by any violence, duress, or constraint, constitutes neither fraud nor undue influence.</p>

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

On the 20th day of August, 1873, Mary Pettus, in behalf of herself and a minor child, filed her petition in the probate court praying that appellant Taylor, the administrator de bonis non of her deceased .husband, be ordered to pay into court for the benefit of herself and minor child, out of moneys in his hands, derived from a sale of the real and personal property of intestate for the purpose of paying debts, the “ average value in money of one hundred and sixty acres of…

Tried before Hon. Littleberby Strange. Appellant commenced this suit against appellee to recover the price of fifty-three shares of the capital stock of the “ Rock Mills Manufacturing Company,” which appellant alleged he had sold and delivered to appellee. Issue was joined on the plea of the general issue, and a special, plea, alleging in substance that plaintiff never had or owned in his own right any shares of stock which he could sell or transfer.

Tried before Hon. J. Q. Smith. Tbis was an action of ejectment brought by appellants against the appellee. Appellants are the only heirs of Daniel Hamilton, who at the time of his death in 1860 was seised and possessed of the lands sued for.

Tried before Hon. O. J. Semmes. Tbe opinion states tbe case. cited tbe acts ere-' ating tbe court, and from time to time enlarging its jurisdiction, and contended that under them tbe court bad no power to originate a grand jury at a special term. ■ O’Byrne v. State, in MS. II. All the counts of the indictment were obnoxious to the grounds of demurrer assigned. 6 Ala. 664 ; 16 Ala. 259 ; 29 Ala. 27; 1 Arch. Crim. Law, § 68.

. Tried before Hon. W. B. Wood. Tbe appellant was indicted for tbe murder of Coleman Williams.

Tried before Hon. J. McCaleb Wiley. The opinion states the case. Honest ignorance of fact, without fault on defendant’s part, will excuse what would otherwise be an offence. It negatives a criminal intent. 2 Bish. Crim. Law, § 276. cited Schuster v. The State, 48 Ala. 199.

This was an application by Henry M. Champion for mandamus to compel the probate judge of Pike county to hear and determine evidence in regard to the cause of the imprisonment of petitioner, who had been brought before him on habeas corpus. The grounds of the motion are fully set forth in the • opinion. The petition could not be demurrable ; it was properly verified and contained all the allegations required by the Code. Mandamus is the proper remedy. 30 Ala. 461.

Tried before Hon. J. E. Cobb. Tbe appellants G. Gassenheimer, S. Gassenbeimer, Joseph Gassenheimer, and Dock Bedell, were indicted ánd convicted for receiving a sack of cotton, the property of J. B. Corr, knowing it had been stolen, &c. The indictment was returned into court on the 7th of November, 1874.' On the trial, the'prosecutor Corr, owner of the property alleged to have been stolen, was introduced as a witness.

Tried before Hon W. L. Whitlock. The opinion states the case. Neither the record nor docket gives the name of appellant’s counsel.

Tried before Hon. J. E. Cobb. The appellant, A. B. Eiland, was indicted for the murder of J. L. Davis. He was convicted of murder in the second degree and sentenced to twenty years’ imprisonment in the penitentiary. Many witnesses were introduced on both sides, and the testimony was, in some respects, conflicting.

Tried before Hon. John A. Minnis. The defendants were indicted for selling “ vinous or spirituous liquors without license and contrary to law,” against the peace &c., following the form prescribed by the Revised Code. They waived a jury trial and submitted the case, on an agreed state of facts, for decision by the court, which found them guilty and imposed a fine. To this ruling the defendants excepted and now assign it for error.

Tried before Hon. W. B. Wood. Tbe facts of the case are fully stated in the opinion. The rule requires stricter proof in prosecutions for bigamy, than where marriage is sought to be established to obtain dower. 15 Mass. 163; 4 Johns. 52-3. Campbell v. Grullat (43 Ala. 57) goes not further than to decide what proof of marriage is sufficient in a dower case.

Tried before Hon. W. S. Mudd. The appellant, John Avery, was indicted for the wilful failure to appear and answer a charge of petit larceny, after having been released on his own recognizance, under the act of December, 1873, “ To regulate the confinement and discharge of persons charged with misdemeanors.” The testimony taken on the trial shows that one Worthington, having some hogs stolen and suspecting Avery, made affidavit to these facts, to obtain a warrant to search…

Tried before Hon. John K. Henrt. The defendant was indicted for an assault with intent to ravish.

Tried before Hon. H. D. Clayton. The indictment in tbis case contained two counts.

Tried before Hon. J. E. Cobb. The appellant, O. A. FieLds, was indicted for the murder of Jesse Dumas. He was tried at the Fall term, 1872, convicted of murder in the second degree, and sentenced to ten years’ imprisonment in the penitentiary. On his appeal, this court reversed the judgment and sentence, and remanded the case for a new trial. See Fields v. The State, 47 Ala. 603. After the reversal of the cause it was regularly continued from term to term.

Tried before Hon. John K. Henry. Tbe appellant was convicted of tbe larceny of a saddle, the property of one Tom Smith.

Tried before Hon. John K. Henry. Tbe opinion states the case. The ownership was improperly laid. Cowan’s case, in 2 East Pleas Crown, 1023; Bishop Crim. Law, § 39. The verdict of the jury did not respond to the issue, and the motion in arrest of judgment should, therefore, have been granted. cited 2 Russ, on Crimes, 564; 1 Bish. Crim. Proc. § 721.

Tried before Hon. John A. Minnis. The opinion states the case. 1. The first count is defective because it fails to charge a felonious intent. Wharton Precedents, 411; 18 Ala. 538. The second is bad, because it does not show that the taking was “against his will.” 11 Humphreys, 167; 12 Ga. 293; 3 Wash.

Tried before Hon George H. Craig. The appellant, Eugene Archie Kelly, was convicted of the murder of Henry Cunningham, and sentenced to be hanged. When arraigned he pleaded not guilty, and by consent the 23d day of December, 1875, was set for the trial. On that day he filed a sworn application for a change of venue.

Tried before Hon. J. K. Henry. The appellant was convicted of burglary in tbe dwelling-house of Benjamin Newbery. When the case was called for trial both parties having announced ready, the court directed defendant to go to trial before one of the regular j uries, which before that had been regularly examined, found qualified, and duly sworn for the week. The solicitor challenged two of the panel, and announced his satisfaction with the remainder.

Tried before Hon. John K. Henry. Tbe appellants were convicted for larceny from a warehouse, under § 3707 of the Revised Code. On the trial one of them sought to establish an alibi.

Tried before Hon. John K. Henry. The facts are sufficiently stated in the opinion. The word “ warehouse ” had a technical meaning before our statute was adopted. Regina v. Hill, 2 Moody & R. 458 ; Foster’s Crown Cases, 77 ; 1 Leach C. C. 287.

Tried before Hon. John K. Henry. The opinion states the case. To constitute the statutory burglary, Eev. Code, § 3695, there must first be a breaking before entering — a “breaking” into and then an entry. 1 Hale’s P. C. 554; 1 Bish. Crim. Law, §§ 250-1. The statute (12 Anne) making breaking out of a house burglary is not law here. 19 Ala. 814. None of the cases hold that a person can be convicted of burglary for entering an opening, which is not a necessary opening.

This was an application for a writ of prohibition to the judge of the circuit court of Madison. The facts upon which it was based are fully set forth in the opinion. Section 3630 of Rev. Code fixes the punishment of prostitutes, &c., at not less than ten, nor more than fifty dollars for the first offence. The statute fixing punishment for the offence, it cannot be punished as a common law offence. Rev. Code, § 3754; 1 Arch. Crim. Pleading, marg. p. 2.

Tried before Hon. J. Q. Smith. The appellant Adams was indicted and convicted for receiving a gin-band, knowing it had been stolen. On the trial but two witnesses were introduced, and both of these for the prosecution.

The facts are given in the opinion. The act cannot be construed retrospectively. 19 Ala. 707; 13 Ark. 729; 2 Scam. 223; 1 Cal. 55; 15 111. 207 John. 477; 33 Maine, 333; 1. Denio, 128; 21 Conn. If it is retrospective in its operation, it is utterly void. The act is penal; it provides for removal from office. 7 Porter, 294. It must therefore be strictly construed. Rex v. Handy, 4 Term, 666; 1 Bish. Crim. Law, § 110.

Tried before Hon. J. E. Cobb. The appellant, A. J. Smith, was indicted and convicted for gaming, under an indictment based on § 3620 of the Revised Code, and pursuing the statutory form. The room in which the playing took place was back of a bar room, on the same floor and under the same roof with it. The front room was used by one Elliott, for the sale of spirituous liquors.

Tried before Hon. O. J. Semmes. Appellant was convicted for carrying a pistol concealed about his person.

Tried before Hon. W. B. Wood. Appellant, Elijab Allen, was convicted on an indictment charging him with assaulting Cyrus Edwards with tbe intent to murder or maim Mm. There were two counts, one averring and the other not stating tbe instrument with wbicb tbe assault was made. Tbe facts developed in tbe trial showed that defendant and prosecutor were brothers-in-law living in tbe same bouse. While prosecutor was absent one day defendant quarrelled with prosecutor’s wife.

<p> Application for Mandamus. </p> <p>Mandamus; when will be denied. — Application for mandamus to compel tlie dismissal of a cause out of a court to which, on application for change of venue, the trial was directed to be transferred under a writ of mandamus from this court, on a former term, at the petitioner’s instance, will be denied. The court expresses surprise that such an application should be made.</p>

Tried before the Hon. W. B. Wood. The appellant, James Boddie, alias White, was indicted in the circuit court of Lauderdale for rape committed upon one Antilla Little. Upon his application the trial was transferred to the circuit court of Colbert county, in which court he was convicted and sentenced to be hanged.

Tried before Hon. John K. Henbv. The indictment in this case charged that before the finding thereof, “ Thaddeus Owens wilfully injured or destroyed, otherwise than by burning, a public bridge in said county, known and commonly called the Long Bridge; said bridge-being erected by authority of law on a road leading from Greenville to Andalusia, commonly called the ‘ Long Bridge Road,’ against the peace,” &e. A demurrer, on the ground that no offence was charged, and that the…

Tried before Hon. John K. Henry. The indictment in this case charged that Henry Morning-star “ feloniously took and carried away a large stick of square hewn timber, of the value of fifty dollars, the personal property of Mrs. George,” against the peace, &c. The defendant interposed a demurrer on the following grounds: 1. “ The indictment does not set forth any offence with sufficient certainty. 2.

Tried before Hon. H. D. Clayton. The appellants, Will Smith and Emanuel White, were indicted and convicted for an assault with intent to murder, committed upon one Josh Heering.

Tried before Hon. H. D. Clayton. The appellants, J. H. Williams and Oscar Youngblood, were indicted and convicted for the larcency of two yearlings, the property of F. A. Boswell. Boswell was introduced as a witness and testified as to the loss of his cattle.

<p>Appeal from Circuit Court of Crenshaw.</p> <p>Tried before Hon. John K. Henry.</p> <p>The facts are fully stated in the opinion.</p>

Tried before Hon. John K. Henry. Tbe appellants were indicted and convicted for arson, and sentenced to two years’ imprisonment in the penitentiary. Tbe evidence connecting them with tbe commission of tbe offence was purely circumstantial. Tbe opinion states all tbe facts necessary to a proper understanding of tbe case. Neither tbe record nor docket gives tbe name of/'appellants’ counsel.

This was an application for certiorari and habeas corpus, based on tbe following facts: At tbe Fall term, 1874, of tbe circuit court of Lowndes county, the petitioner was indicted for an assault with intent to murder. The indictment was returned into court, indorsed by the foreman of the grand jury, “a true bill,” but the clerk failed to indorse it “filed,” and date and sign the indorsement. R. C. § 4148.

<p>Appeal from Circuit Court of Lowndes.</p> <p>Tried before Hon. James Q. Smith.</p> <p>The facts are stated in the opinion.</p>

Tried before Hon. Alpheus Baker. The appellant, Willis Moore, offering to vote at a general election held in Barbour county, Nov. 8, 1874, was duly challenged, and thereupon he took the oath prescribed by law before one of the challengers, that he was a duly qualified elector. Moore, on the ground that he was a minor at the time of taking the oath, was indicted for perjury.

Tried before Hon. John Henderson. This was a proceeding against appellant under the statutes for bastardy. On the issue before the circuit court as to the paternity of the child, the mother testified that appellant was its father.

Heard before Hon. A. W. Dillakd. The bill in this case was filed by the appellees to set aside the probate of the will of Robert D. McAlpine. The appellee, ' Mary E. Hill, was the only sister of the full blood of the said Robert D., who died in March, 1869, between eighteen and nineteen years of age, unmarried, and leaving no brothers.

<p> Bill by Heir to recover Fund in Administrators’ Hands. </p> <p>1. Demurrer, hearing of; to what confined. — Since the adoption of section 3330 of the Bevised Code the court is prohibited from hearing a demurrer to the bill for any cause not specially set forth.</p> <p>2. Same; what raises no question as to amendable defects. — To assign as cause of demurrer to the bill that “it contains no equity," is not a compliance with this law, and raises no question as to any amendable defect.</p> <p>3. Demurrer for non-joinder of defendants ; when properly overruled. — Á demurrer for non-joinder of parties defendant which does not specify those who should have been joined is rightfully overruled.</p> <p>4. Bill; what demurrable. — A bill by the heir at law, to recover his share of a particular fund in the hands of the administrator of a solvent estate, is defective if it seek relief as to that fund only, and not a final settlement and distribution also. Such a bill, however, is not without equity, and if not assailed for its defects in the court below, the objection cannot be raised in this court.</p> <p>5. Set-off; what proper subject of. — An heir sold certain cotton belonging to the Alabama estate to a third person who was to ship and sell it in New York. On its arrival there it was seized on legal process by the New York administrators. In a compromise with the purchaser, who threatened litigation, the New York administrators retained the cotton and paid the purchaser a sum of money on the heir’s request to do so “ and charge him in their administration account with the amount.” It did not appear whether the New York administration had ever been settled, or whether there were any outstanding debts: Held, 1st. That the domiciliary administrator could not set off the sum paid by the New York administrator against the heir’s claim to a share of the fund here. 2d. If equitable circumstances existed warranting the administrator here in making the charge, he could obtain relief only on cross-bill filed for that purpose. 3d, Mere unliquidated damages, arising out of a tort cannot be the subject of a set-off in equity.</p> <p>6. Decree for heir’s share without refunding bond; when proper. — It is not erroneous to decree an heir his share of a particular fund in the hands of an administrator, without exacting a refunding bond before coercing payment, when the administrator shows by his answer no reason why it is improper, and it appears that the estate is solvent, that all the other heirs have received their share, and there is no allegation of outstanding indebtedness.</p> <p>7. Account; when may be stated without reference. — When the amount is not in controversy and nothing remains but a calculation of interest, the chancellor may, in his discretion, state an account without a reference to the register.</p> <p>8. Interest; when allowable in equity.- — As a general rule interest is always allowed in equity whenever it would be recoverable at law. A party complaining of the allowance of interest must show the special circumstances which render it improper.</p> <p>9. Damages on affirmance. — The court declines to depart from the long established practice of awarding only five per cent, damages on affirmance of a judgment for payment of money, which has been superseded under section 3489 of Rev. Code.</p> <p>Note by Reporter. — At a subsequent day of the term the appellee moved to have the judgment awarding damages on the supersedeas bond corrected so as to allow the amount prescribed by the Revised Code, instead of that -prescribed by the ordinance of the Convention of 1867. The motion was overruled in the following 'opinion : —</p>

Tried before Hon. C. F. Moulton. The opinion states the case. Section 14 of the Revised Code regulating the computation of time refers only “ to the time within which any act is provided by law to be done.” The computation must always conform to the intention of the parties. The meaning of the word “ from ” must always be determined by the context. Pugh et ux. v. Dulse of Leeds, 2 Cowp. 714.

Heard before Hon. B. B. McCkaw. The material facts of this case as gathered from the bill, and an agreed state of facts which it was consented might take the place of answer, are as follows: — The appellee, A. J. Battle, being seized in fee of the house and lot in controversy, agreed with Cullen A. Battle and John Gill Shorter that the three should make an equal contribution and give the house and lot, together with a small amount of personal property, to Mrs. Jane Battle,…

Tried before Hon. L. R. Smith. This was an action on a promissory note executed by defendant's intestate, and others not sued, on the 3d day of April, 1863, and payable to plaintiff twelve months after date, for .seven thousand five hundred and sixty dollars, “ money loaned.” The evidence showed that the note was given for Confederate currency, loaned, and that the payee and makers of the note were at the time resident citizens of Marengo county, Alabama.

This was an application for mandamus to compel the judge of the 8th judicial circuit (Hon. H. D. Clayton) to strike from the docket the case of the State v. Owens, on the ground that it had been discontinued. The petition shows that the petitioner was indicted for assault and battery at the Fall term, 1868, of the circuit court of Pike, and at that term gaye bond for his appearance as required by law.

Tried before Hon. Luther R. Smith. Taylor, appellant, brought' detinue before a justice of the peace against appellee, Woods, to recover a bale of cotton alleged in the complaint to be of the value of a hundred dollars. The justice of the peace having rendered judgment in favor of the plaintiff for the cotton, or $80 its alternate value, an appeal was taken to the circuit court.

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

Tried before Hon. Lutheb. R. Smith. The facts are sufficiently stated in the opinion. This act is the “ giving away ” of money due the State without complying with the Constitution. What cannot be directly done is forbidden to be done by indirection. Haley v. Qlarlc, 26 Ala. 489. If this act be valid the Constitution can always be violated with impunity. Two thirds of the members of each house may make a loan which is well secured, and a majority afterwards release the debt.

This was a motion to dismiss the appeal because no final judgment had been rendered in the court below. The facts upon which it is based are set forth in the opinion.

This was a statutory proceeding commenced by the appellee, P. S. Holt, against the appellant, Benjamin Thompson, before Hon. J. E. Cobb, judge of the ninth judicial circuit, to compel the delivery of… Held: and in what manner forfeitures should be enforced. Gardner’s case is in irreconcilable conflict with the later case of Perkins v. Gorlins. The peace and good order of society require that there should be some power to fill vacancies.

The record does not give tbe name of the presiding judge. Appellant, Louisa Du Bose, brought trespass against appellee, Marx, for causing the sheriff, to whom appellee, plaintiff in execution, executed an indemnifying bond, to levy upon and sell, under execution issued in a judgment against a third person, a horse belonging to appellant.

Tried before Hon. John D. Cunningham. Tbe appellee, Strobaeh., was sheriff of Montgomery county. An attachment against the estate of one B. W. Ramsey having been placed in his hands, he delivered it to one J. A. Boothe, his regular deputy, to execute.

Tried before Hon. Milton J. SARNOLD. The appellant brought this action against Weaver, a surety, to recover damages for the breach of an injunction bond. The complaint contains two counts.

Tried before Hon. John Elliott. The appellee, Sarah Taylor, brought this action against appellant, T. J. Hughes, for use and occupation of land, and rel covered judgment in the court below for one hundred and twenty-five dollars. According to the bill of exceptions reserved on the trial, but not professing to set out all the evidence, the plaintiff testified that when she first knew the lands they belonged to one De Lauie, whom she boarded, he agreeing to pay her in land.

Tried before the Hon. James Q. Smith. Suit by appellees, against appellant, as transferees of a note executed by him to Inge & Blocker. J] Appellant pleaded, in short by consent, 1st, the general issue; 2d, payment, and 3d, recoupment.

Tried before Hon. C. F. Moulton. The point decided sufficiently appears from the opinion. Appellant’s brief did not come into Reporter’s hands. The charge was not erroneous. 18 Ala. 264 ; 8 Ala. 567; 2 Ala. 749 ; 11 Ala. 345 ; 4 Ala. 208 ; 22 Ala. 409 ; 27 Ala. 574.

Chancery Court. Heard before Hon. A. W. Dillard. Held: by Richard Randolph. • The administration of the estate of Jane Randolph was removed into the chancery court, and on the 20th day of September, 1872, a decree was rendered ordering sale of the lands purchased from the estate by Spedden and R. C. Randolph, for payment of the balance of the purchase-money unpaid; the lands were sold by…

Tried before Hon. John D. Cunningham. This was an action commenced by the seven children of John Wilson Bledsoe, who were all minors suing by their next friend, Nathaniel Bledsoe, against the “ Brooklyn Life Insurance Company,” to recover the amount of a policy of life assurance which it issued upon the life of their father. The complaint contained two counts.

Heard before Hon. A. W. Dillard. This was a bill filed by appellees, as judgment creditors of M. A. Marshall, to set aside three conveyances of lands made by him, two of which were made to his… Held: although indications of fraud, are not conclusive proof of it; there is a full explanation of these, and a complete denial of fraud by defendants. 49 Ala. 539.

<p>Appeal from Dallas Circuit Court.</p> <p>Tried before Hon. Milton J. Saeeold.</p> <p>The opinion states-the case.</p>

This was a summary proceeding commenced by tbe appellee, W. H. Tbornton, before tbe judge of tbe lOtb judicial circuit (Hon. John Henderson), to compel appellant, George P. Plowman, to deliver up to appellee, as bis duly qualified successor, tbe books and papers pertaining to tbe office of probate judge of Talladega county, which it was alleged appellant bad vacated by failing to file bis official bond, properly approved, as required by law.

Tried before Hon. John Elliot. The points decided are sufficiently stated in tbe opinion. Lipscomb, though not a party, is a privy to the judgment, rendered on Hall’s settlement. It was competent evidence to prove heirship as against him. Lipscomb could not have appeared or contested the heirship of plaintiffs on Hall’s settlement. He is not privy to the judgment, nor bound by its recital of facts as to who tire heirs were. 17 Ala. 681; 25 Ala. 161; 15 Ala. 609.

Tried before Hon. James Q. Smith. Abner brought trover against Dudley for the conversion of a mare. In the years 1870 and 1871 Dudley was cultivating a plantation, and among his tenants had one Abram Webb.

<p>This was a motion to dismiss the appeal in this ease, on grounds stated in the opinion.</p>

Tried before Hon. John D. Cunningham. This was a qui tarn action brought by Zaeh Gammel against George Ely, probate judge of Montgomery county, to recover the penalty given by statute for improperly issuing a marriage license authorizing the solemnization of the rites of matrimony between Robert Garvin and Emily Gammel.

Tried before Hon. J. Q. Smith. The appellant, Ike Robinson, was convicted of burglary. The indictment charged that before the finding thereof he “ broke into and entered-into the gin-house of William Robinson, in which gin-house was kept at the time lint and cotton for sale, use, and deposit, with the intent to steal,” &c. A jury was selected, and the defendant pleaded not guilty.

Heard before Hon. Adam C. Feldek. The appellants, who are simple contract creditors of W. B. Drake, who died intestate and insolvent, filed this bill, in behalf of themselves and other creditors, to subject to the satisfaction of their debts the sums due on two policies of insurance for $10,000 each, issued on the life of said Drake, by the “ Continental ” and the “ Knickerbocker ” life insurance companies, in favor of his wife and children.

<p>Appeal from Chancery Court of Lowndes.</p> <p>Heard before Hon. Hui-nosco Austill.</p> <p>The opinion states the case.</p>

Tried before Hon. M. J. SARNOLD. This was a real action under the Code, by appellee against appellants.

Tried before Hon. James Q. Smith. This was an action brought by the appellees, Henlein & Barr, against the appellant, the South & North _ Alabama Railroad Company, for the failure to deliver a steer received for transportation to Montgomery, Ala.