Volume 53 — Alabama Reports

Heard before Hon. Chas. Turner. This was a bill filed by Wm. M. Mathews, Mary A. Mathews his wife, and Mary B. Smoot, Jr., against Philip A. Wood and John A. Wood, administrator de bonis non of the estate of Bichard Morton, deceased, and as administrators of John Wood, deceased, and the heirs at law of said Bichard, to compel a settlement and distribution of his estate.

<p> Trial of the Right of Property. </p> <p>1. Charge; when properly refused.. — A charge which is abstract is properly refused; so also, when it does not affirmatively appear that it was asked in writing, it will be presumed on appeal, that it was refused for that, if for no other reason. (Myatt v. Bell, 41 Ala. 222, not considered authority on the last point).</p> <p>2. Repleader; when not error to refuse. — It is not error to refuse a re-pleader after verdict, to a party who joined in issue tendered him in sufficient form and not so narrow as to exclude any of his evidence, where the verdict responds to the issue joined.</p> <p>3. Claimant; what questions can not raise. — The claimant of goods levied on as the property of another, is not concerned in the rightfulness of the levy of the execution, as to the defendant in execution, and can litigate no question except his own right to the property.</p> <p>4. What not revisadle on error. — It can not be assigned for error, that the court below refused to hear argument on a motion for new trial, and overruled it without allowing argument.</p>

Tried before Hon. John A. MiNNis. This was a trial of the right of property to two bags of cotton, between Abraham as plaintiff, Williams as defendant, and Carter as claimant. On the 28th day of January 1873, defendant'executed a note for advances on his crop, under § 1858, R. C., to Shulman, Goetter & Wiel, and executed a mortgage on his crop to secure the debt, both of which were properly recorded on the 7th day of February 1873.

Tried before Hon. J. E. Cobb. In 1868 Ingram commenced suit by attachment against Chapman. A levy was made upon personal property, which was restored to him upon his executing a replevy bond with sureties, conditioned according to the statute. Chapman having died pending suit and before judgment, his executor, Mott, was made defendant on the 8th day of May 1871, and judgment rendered against him at the November term Í871, of the circuit court, upon which execution issued.

Petition for mandamus. On the 22d of April 1875, one Nabors, a justice of the peace, rendered judgment against petitioners, Grant & O’Barr, in favor of Holt and others, in an unlawful detainer suit for a steam saw mill. They prayed an appeal, and tendered the justice good and sufficient bond as required by §§ 3313 and 3314 of Rev. Code.

Tried before Hon. M. J. Saffoll. This was an action brought by Adolph Hess, the appellee, against the Southern Express Company, for the failure to deliver certain jewelry received by it for transportation to Selma, Alabama. The testimony showed that the jewelry together with other that xvas delivered to appellee, was in a package delivered by one A. Hirsch to the Adams Express Company at Louisville, Kentucky, and consigned to appellee at Selma, Alabama.

Tried before Hon. J. McCaleb Wiley. On the 16th day of July, 1866, the commissioners’ court of Coffee county after hearing evidence upon a claim presented against the county by John G. Moore, passed the following order: “It is ordered by the court that the county treasurer pay to J. G. Moore three hundred dollars for four hundred bushels of corn, bought for the indigent families of Coffee county, and delivered at Henderson’s Store, in the year 1864, out of any money in the…

Tried before Hon. H. T. Toulmin. The indictment in this case, which was in the form prescribed by the Revised Code, charged that before the finding thereof the defendants, Cato Washington and Ctesar Lewis, with five other persons, “unlawfully and with malice aforethought, did assault Dr. S. D. Smith with the intent to murder him, against the peace and dignity of the State of Alabama.” On the application of the defendants, Washington and Lewis, a severance was had as to them,…

Tried before Hon. L. R. Smith. Pepper & Co., the appellants, commenced suit by attachment against Dose & Lee, a firm composed of S. M. Dose and B. M. Lee, and an attachment was levied upon twenty-six bales of cotton as the property of defendants. J. J. Lee, the appellee, interposed a claim, under the statute, in his own name, to try the right of property.

Tried before Hon. Luther E. Smith. • This was an action brought by the Citizens Mutual Insurance Company as endorsee against M. F. Cook as endorser of a promissory note for $733,34 to the Spring term 1872 of the circuit court. The complaint was as follows : The plaintiff claims of the defendant seven hundred and thirty-three dollars and thirty-four cents, due by promissory note made by O. Gr.

Tried before Hon. J. McCaleb Wiley. Attachment at the suit of E. A. & J. E. Raiborn against one Williams, was levied on ten thousand pounds of seed cotton, as his property. Gray also claimed the cotton, and interposed his claim, under the statute, to try the right of property. There was a trial of the right of property, as appears by a minute entry, as follows: “ E. A. & J. E. Raiborn') On this, ninth day of Ocv. tober, 1872, comes the par-13.

This is an application by Charles W. Buckley to this court, for a writ ot certiorari, supersedeas, or other appropriate writ, to review certain proceedings, had before the Chancellor of the Southern… Held: replied that he would, but that he did not expect to be in Alabama. One Avitness testified that just before leaving, Stow told him he was trying to wind up his business here and intended going to his home in Meriden, Connecticut.

Tried before Hon. M. J. SAFFOLD. This was a petition for a rehearing under § 2814 of the Revised Code, filed by J. Cooper Waddill, as executor of William Waddill, on the 7th day of February, 1872, praying a supersedeas of a judgment rendered against him on the 9th day of December, 1871.

Heard before Hon. B. B. Me Cea w. The appellee Helms, as administrator de bonis non of the estate of John Howard deceased, filed this bill on the 24th of August 1870, against the appellant, J. H. DaughdriU, to subject to the payment of the purchase money, certain lands which DaughdriU had purchased from his intestate.

Tried before Hon. Littleberry Strange. At the spring term, 1868, of the circuit court, McLendon, the appellant, recovered judgment against the appellees, Darden & Co., for three hundred and thirty-seven dollars and eighty cents and costs.

Tried before Hon. John Elliott. This was an action commenced on the first day of October, 1869, by Edward Hanlon, a minor, by his father Charles Hanlon, as next friend, against the Government Street Bail-road Company, to recover damages for personal injuries to said Edward, alleged to have been occasioned by the negligence of the defendant, in running a car, drawn by animals, on defendant's road.

Tried before Hon. John M. Chilton. Emaline Barnes, the appellee, brought suit against tbe appellant Holland, to recover of him, as administrator, the amount of a note made by bis intestate, Ingersoll. The evidence tende.d to show that at tbe time of tbe exeeution of the note, as well as up to the time of his death two years afterwards, Ingersoll was in feeble health, and his mental faculties so much impaired by drink that he was incapable of making a contract.

Tbe appellant, D. C. Smyley, married Elizabeth H. Reese, in November 1858. She died intestate in March following, her husband and several brothers, who were her only heirs at law, surviving her. In May 1859, the appellant was appointed administrator of her estate, which consisted of personal property valued at about $20,000. He made partial settlements in April 1867, and June 1870, and made final settlement in the probate court, on the 23rd day of July 1873.

Tried before Hon. P. O. Harper. Appellants intestate brought suit to the spring term, 1870, of the circuit court, against W. V. Evans, and Uriah Evans, claiming damages of the defendants, for breach of a written agreement made by them with one Edward Bowen, on the 7th of November 1868, whereby they promised to pay said Bowen, or order, by the first day of January 1870, seven hundred and forty-one dollars, “to be paid in lint cotton at 20 cents per pound,” &c., at Greenville,…

Tried before Hon. John M. Chilton. Swift, Murpby & Co., a firm composed of G. P. Swift, Sr., G. P. Swift, Jr., Samuel G. Murphy and Lewis W. Isbell, brought this suit against J. C. Sledge and Sarah Sledge, to recover the amount of a promissory note made by the defendants. The defendants pleaded payment and ¡'several pleas of set-off.

<p>Appeal from Circuit Court of Autauga.</p> <p>Tried before Hon. J. Q,. Smith,</p> <p>The facts are sufficiently stated in the opinion»</p>

Heard before Hon. Charles Turner. The bill was filed for the foreclosure óf a mortgage on certain real estate in the city of Birmingham, executed by the appellant and her deceased husband, William H. Tilford, to secure the payment of a debt due from him to the appellees.

<p>Appeal from Circuit Court of Talladega. Tried before Hon. W. H. Smith.</p> <p>The opinion states the case.</p>

Heard before Hon. Charles Turner. The opinion states the facts. The averments of the bill being positively denied, the injunction should have been dissolved. The bill does not show a specific claim to the draft in the hands of Harlan and the answer denies all right of the complainant to it. The draft is legally in possession of Harlan who is a party defendant, but who has not appeared, and the court has no power to reach him or the draft.

Heard before Hon. H. Austill. Beeves, on his own credit, purchased land of Pylant, and executed a note for the purchase money. The legal title was in Pylant’s father, who, by agreement between the parties, conveyed the land to a trustee for Beeve’s wife. Beeves paid nearly the whole of the note, and finally took it up, giving a new note for the unpaid purchase money.

<p>Appeal from Probate Court of Dallas.</p> <p>The opinion states the case.</p>

Appeal-from Chancery Court of Mobile.. Heard before Hon. A. C. Felder. This was a bill filed by Mrs. Sheldon against the appellants, praying that a certain trust deed, executed by her and her husband, and conveyances under it, be cancelled, &c., as presenting the case of a mortgage by a married woman of her statutory separate estate in payment of the husband’s debts. The chancellor granted the relief prayed and hence this appeal.

Petition for mandamus to compel the chancellor to allow Branch, Sons & Co., to be made defendants to tbe suit of Morris & Lowery, trustees, v. The Western Railroad Company of Alabama. This petition showed in substance that the Western Railroad company of Alabama was chartered by an act of the legislature of Alabama, approved February 23, 1860. Two sections of this charter were as follows: “Sec. 21.

Tried before Hon. H. D. Clayton. The appellants, a white man and a negro woman, wei’e indicted for living together in adultery or fornication. The indictment was demurred to, on the ground that it charged no offence, and that the section of the Revised Code upon which it was based, violated the Constitution of the State and of the United States. The demurrer having been overruled, a trial was had on a plea of not guilty.

Tried before Hon. M. J. Saffold. Appellee, M. L. Bowie, as administrator de bonis non, &c., of the estate of John P. Boyd, deceased, brought this action on the 29th day of January 1873, on a promissory note made by Elza Bland and others, the appellants, for a part of the purchase money of a tract of land sold by W. H. Griffin, as the administrator of John P. Boyd, deceased, under an order of the probate court of Dallas county.

<p> Bill in Equity to establish and enforce Vendor’s Lien. </p> <p>1. Vendor’s lien; priority of assignees of notes given for' purchase money. —The liens of assignees, to whom different notes taken for the purchase money of land are transferred at different times, take precedence according to the order of time in which the notes were assigned, without regard to the time when they mature.</p> <p>2. Notice to attorney, when notice to principal. — Where the wife, by the advice and agency of the husband, (who was also her attorney in a suit against them both to subject land to the satisfaction of several purchase money notes executed by him,) enters into a consent decree of sale of the land in controversy and purchases under it, she can not be regarded as a bona fide purchaser without notice of the rights of a transferee, not a party to the suit, of another of the outstanding purchase money notes, the existence and holder of which were known to the husband. Notice to the husband, the agent, in such a ease is notice to the wife the principal.</p>

<p> Final Settlement of Decedent’s Estate. </p> <p>1. Final settlement; what not ground for deferring. — After the lapse of seven years from the grant of administration, a final settlement should not be deferred at the instance of the administrator, because of outstanding debts or unsettled accounts.</p> <p>2. Allowance on partial settlement; effect of. — An item allowed in a former or partial settlement is presumed to be correct on the administrator’s final settlement, unless the party impeaching the correctness of the item overturn the presumption by proof,</p> <p>3. Administrator; when liable for interest. — An administrator who intermingles with, and treats as his own funds, moneys of the trust estate, thereby becomes its debtor and liable for interest.</p> <p>4. Same; when not entitled to credit for deposit. — An administrator is not entitled to a credit for the amount of a deposit, in his own name, lost by the failure of the bank in which he had placed it, although the deposit was made with the intention, known only to himself, that it should be kept there to replace or repay the amount of trust funds used by him.</p> <p>5. Same. — If the administrator, after the- breach of trust in mingling and using trust funds as his own, could be entitled to any credit for a deposit made to repay or replace the funds thus used, it could only be by a deposit in his representative capacity — a deposit with such ear marks that all could distinguish it as a trust tund.</p> <p>6. Same; when not entitled to allowance for counsel fees. — It is noterror to refuse an administrator credit for counsel fees, when it does not appear that he has paid any.</p>

<p> Writ of Right. </p> <p>1. Limitations; different statutes of, construed. — The act of 1802, which was the only general statue of limitations in existence in this State prior to 1843, (Clay’s Digest, 327-8, sections 7 and 8) by its 7th section barred actions of ejectment, or other actions dependent on a right of entry, in twenty years; and by its 9th section barred all other actions for the recovery of lands, in thirty years.</p> <p>2. Same. — By the act of 1843, (Clay’s Digest. 329, $ 93) ten years was the period prescribed as the limitation of all actions, irrespective of their form, for the recovery of lands; and by the judicial construction given to it, {Rawlesv. Kennedy, 23 Alabama, 240), possessions existing at the time of its passage were held to be governed by the statute of 1802, unless the latter act sooner affected a bar.</p> <p>3. Same. — By the Code of 1852, the same period of limitation was continued, (| 2476) and all former statutes of limitation were declared repealed (| 10); but existing causes of action, on which suits were then pending, and those on which suits were commenced within one year after its adoption, were excepted from its operation, and were thus left without any statutory bar.</p> <p>4. Same. — To remedy the defects of the Code as to causes of action existing at (he time of its adoption, the act of 1854 (Revised Code, ji 2926) was passed, which revives the former statutes of limitations, and declares them applicable to such existing causes of action ; but these statutes are revived “for this purpose only,” and cannot operate to revive a right of entry which commenced in 1840, and was barred under the act of 1843 before the act of 1854 was passed.</p> <p>5. Writ of right. — No such form of action, for the recovery of lands, as the writ of right has been known to our laws since the Code of 1852.</p>

<p> Petition for Allotment of Exemptions. </p> <p>Appeal-, what not such final decree as will support. — A decree of the probate court, rendered on petition of the widow to be allowed the exemption given by section 2884 of the Revised Code, and one-third of moneys received by the administrator from rents of decedent’s real estate, which determines the right to the exemption but continues the claim for rents, is not such a final decree as will support an appeal.</p>

Heard before Hon. Adam C. Feldeb. Appellants filed this bill on the 6th day. of February, 1872, for the purpose of opening and correcting a final settlement made by appellee Dargan, as executor of R. A. Heirn, deceased, in the probate court of Mobile on the 16th of March, 1870.

Tried before Hon. Luther B. Smith. The appellant Smith brought this action against the appellee Huckabee, to recover of him the amount of a promissory note for ¡¡>1266.20, due January 1st, 1867, made by the “Choccolocco Cotton Mills.” The complaint avers that the Choccolocco Cotton Mills was a private corporation, organized under the laws of the State of Alabama, under the provisions of part 2, title 2, chapter 3 of the Code, and the several sections thereof; that the…

Heard before Hon. A. W. Dillard. This was a bill in equity filed by Nichols & Jamison and others, who were judgment creditors of Mrs. Amelia Tompkins, in the aggregate sum of $774.34, to set aside and declare void, four conveyances of her real and personal property, made to her son-in-law, John Lawhorn, purporting to have been made for the aggregate consideration of $4,600.00 paid by him, on the ground that the conveyances were made with the intent to hinder, delay and…

Tried before Hon. Joi-in Elliott. This was an action of unlawful detainer brought by the appellee Mountain, against the appellants, Winnie Parsons, Joseph Collins, and Tom Smith, to recover possession of certain premises in the city of Mobile. There is a minute entry showing that a demurrer to the complaint was overruled, but the demurrer no where appears in the record.

Tried before Hon. Luther B. Smith. The appellee Patterson, brought this action against the appellant Howze, and H. A. Torbett, A. Stollenwerck and Allen Stolenwerck, partners doing business under the name and style of Howze, Stollenwerck & Co., to recover the amount of a promissory note which read as follows : $700 Pulaski, Tenn., - Oct. 16, 1862.

Tried before Hon. M. J. Saffold. One Williams on the first day ot April 1869, executed a mortgage on certain lands and personal property, to Webster & Wilson to secure a debt due them. On the 10th day of July following, to secure debts due Singley and others, he executed a mortgage to them upon the personalty already mortgaged to Webster & Wilson.

This was a proceeding by the Southern and Atlantic Telegraph Company, to condemn or subject to its use, for the purpose of constructing, maintaining and operating its lines of telegraph, the right of way, bridges and trestles of the New Orleans, Mobile and Texas Railroad Company, in such a manner as not to obstruct or hinder the use of the railroad.

APPEAL'from Chancery Court of Wilcox. Heard before Hon. CHARLES TURNER. Appellants, Ketchum and wife, filed their bill on the 10th day of June 1868, as administrators de bonis non of A. M. Creagh, dec’d., and as individuals, against appellees, to subject certain lands formerly belonging to A. M. Creagh to the payment of the purchase money.

Heard before Hon. Adam C. FELDER. The appellee, by next friend, on the 28th of September, 1872, filed her bill of review to correct an… Held: that the mortgage and promissory notes did not bind the separate estate of complainant, although valid as to her husband; that the complainant was entitled to the sum of $10,500, the amount of the legacy, as her statutory separate estate, that the payment of this sum in discharge of the notes of her husband, given lor said plantation…

Heard before Hon. CHARLES TURNER. On the 19th day of March, 1873, James Boorman Johnston and John A. Stewart, as trustees, under a mortgage executed to them on October 1st, 1867, by the Selma, Rome and Dalton Railroad Company, filed this bill, in behalf of themselves, and all other creditors of the company, against the Selma, Rome and Dalton Railroad Company; Uriel A. Murdock, special trustee under the deed of -mortgage executed to complainants; Gazaway B. Lamar, as…

<p>Appeal from Circuit Court of Montgomery.</p> <p>Tried before Hon. James Q,. Smith. ■</p> <p>The opinion states the facts.</p>

Tried before Hon. J. Q. Smith. This was an attachment for rent sued out by DeBardeleben under the provisions of §§ 2961-3 It. C. which give the landlord a lien on the crop grown on rented land for rent for the current year, and the remedy by attachment for its collection.

Heard before Hon. A. W. DlLLARD. In 1861 Claiborne Carter died in Clarke county, leaving a last will, by which he bequeathed all his property, real and personal, to Francis B., Maria C. and Robert D. James, Jr., children of Robert D. James, upon the condition that Robert D. James, Sr., would set free certain negroes then owned by him, “so far as the laws of this State would permit and equity and good conscience would protect,” and which provided that the bequests should be…

Tried before Hon. Vm. H. Smith. Appellant, Woodward, in 1867 recovered a judgment against the Talladega, Insurance Company, and execution being returned “no property found,” he obtained process of garnishment against Curry and Lawler, who were stockholders, and owed the company a balance on their subscription to its capital stock.

Tried before Hon. John A. Minnis; The appellee, Belser, was convicted in the mayor’s court for an assault and battery, and for disorderly conduct, and fined for each offence. In the city court, to which he appealed, this appellant moved to dismiss the appeal, on the ground that the city court had no jurisdiction to hear or determine appeals from the judgment of the mayor of the city of Montgomery. The court overruled this motion and this ruling is assigned as error.

Tried before Hon. George H. Craig. The appellant was indicted for and convicted of robbery. The evidence showed that he and one Hardy were traveling along the same road, and that the articles taken, contained in a bag, were handed by witness to defendant to be carried for him.

, showing the following state of facts: One Kit Barnard was on trial in the circuit court of Madison, on a charge of mm’der. Dr. J. J. Dement, the petitioner, was introduced as a witness for the State, the solicitor stating that he desired to examine him as an expert.

Tried before Hon. John Henderson. Appellant was indicted and convicted, under'section 3612 of the Revised Code, for disturbing religious worship.

<p> Real action in the Nature of Ejectment. </p> <p>1. lax sale under revenue law of 1852; what necessary to uphold. — Under the Code of 1852, which governs a sale of lands for taxes in 1863, a tax collector’s deed is invalid and passes no title, unless every substantial prerequisite of the law was strictly complied with; and proof of such compliance devolves on him who claims under the deed.</p> <p>2. Same. Itis essential to the validity of such a deed that the lands should have been advertised for the time prescribed, posted as required; that the advertisement should state the amount of taxes and costs; and where the land was other than town lots, that it be sold in subdivisions of not more than forty acres. A disregard of any of these requirements renders the sale void.</p> <p>3. Same; to what revenue law of 1868 applies. — The provisions of the revenue law of 1868 have no application to tax sales made before its passage.</p>

Tried before Hon. Alpheus Baker. The indictment in this case contained four counts; it is only necessary, however, to refer to one of them.

Tried before Hon. John Elliott. The appellees are children of William Pitcher and his wife Pherady. Held: under facts very like those shown in this case, that a free negro could take and hold land. See also 2 Peters, 664. Pitcher was an inhabitant of Ohio, and he and his children derive their rights of person and property from the State of their residence.

Clair. Tried before Hon. W. L. WHITLOCK. This was a real action in the nature of ejectment, brought by the appellant, Sylvester Steele, against the appellee, B. C. Moody, on the 22d day of June, 1872, to recover the east half of the northwest quarter, and the northeast quarter, and east half of southeast quarter — all in section one, township seventeen of range one, east, lying in St. Clair county.

<p>Appeal from Chancery Court of Lee.</p> <p>Heard before Hon. B. B. Me Craw.</p> <p>The opinion states the facts.-</p> <p>Brown had notice of Mrs. Dixon’s claim to the land. He found her and her husband jointly in possession, and where such is the case the law refers the possession to the title. McCoy v. Odom, 20 Ala. 502. Under our law the husband and wife, as to property, are two persons. Walthall v. Qoree, 36 Ala. 728. Brown was, therefore, bound to know she was in possession of the property. Newsome v. Collins, 43 Ala. 656. Mrs. Dixon cannot be estopped by the deed to Brown. The deed was absolutely void. It was her separate statutory estate, and two witnesses to the deed of her husband and herself were essential to its validity. Robinson v. Robinson, 44 Ala. 227. The statute is restrictive, and must be strictly complied with, or the conveyance will be void. Smith v. Oliver, 31 Ala. 39; Greenwood v. Coleman, 34 Ala. 150.</p> <p>Brown is a bona fide purchaser, without notice, and as such a court of equity will not-disturb him. There was nothing in the bond for title to Dixon which could lead him to suppose that the property was the statutory separate estate of the wife, and he cannot be held to have notice of such latent equities. Oliver v. Piatt, 2 How. 333; Barnes v. Taylor, 23 Ala. 255; Dudley v. Witter, 46 Ala. 620. She is estopped by her deed to Brown from asserting any claim to the property as against him.</p>

Tried before Hon. ¥m. S. Mudd. Appellant’s testator, Lane, brought his action on the case against Peebles & Son for receiving from sub-tenants cotton grown on the rented land, having knowledge of plaintiff’s lien for rent, and converting the same to their own use by selling and shipping it, &c. R. B. Peebles having died, the suit was continued against his son as surviving partner.

Tried before Hon. James Q,. Smith. On the 6th day of January, 1873, the city council of Montgomery passed an ordinance levying a tax of one-fourth of one per cent, on the capital stock of national banks, and made it the duty of the clerk of the city council to demand of the president, cashier, or other officer of each national bank, within the city, a written statement, under oath, of the amount of the capital stock of such bank.

. Motion for prohibition to restrain the circuit judge of the 10th judicial circuit from certifying to the Governor a vacancy in the office of probate judge of Talladega county, based upon the following state of facts : At the fall term, 1875, of the circuit court of Talladega, the grand jury made a report which contained the following statement and recommendation: “11th.

The appellee, Angelina Pipes, formerly McGuire, filed her petition in the probate court on the 6th day of October, 1873, praying that she and two minor children be allowed a homestead, to the value of $500, in certain lands which belonged to her deceased husband.

Tried before Hon. James E. Cobb. The appellant, a boy about fourteen years old, was tried and convicted of breaking and entering a dwelling house, with intent to commit a rape.

Tried before Hon. James'Q,. Smith. Mclver, a citizen of Macon county, was a stockholder in the First National Bank of Montgomery. Patrick Robinson, tax collector of Montgomery county, assessed taxes on his stock, and notified the president of the bank.

Tried before Hon. Luther R. Smith. The appellant, and two others who do not appeal, were indicted for burglary. The indictment contained two counts.

Tried before Hon. John K. Henry. The appellants, Hall and Parmer, were indicted for “living together in a state of adultery or fornication.” The testimony on the part of the State went to show that the defendant, Hall, was seen in bed with the female defendant, Parmer, on three different occasions, and that he had confessed “that he had had illicit intercourse with her.” Where Hall lived was not shown.

Tried before Hon. Harry T. Toulmin. Appellants were convicted of burglary upon an indictment which charged that they “broke into and entered the shop or store of Henry G. Rodgerson, in which goods, merchandise or other valuable things were kept for use, sale or deposit, with intent to steal,” &c. On the trial, the court allowed a witness for the State to testify, that seeing tracks near the store leading in the direction of the houses of defendants, who lived near each…

Tried before Hon. Luther B. Smith. The appellant was tried and convicted on an indictment which charged that he, “with intent to defraud,” forged an instrument in writing, in words and figures, as follows: “Due 8.25. Askew Brothers,” meaning thereby that there was due the bearer of said instrument, from said Askew Brothers, a firm composed of Samuel H. Askew and Warren S. Askew, the sum of eight dollars and twenty-five cents.

Tried before Hon. O. J. Semmes. The appellant was indicted for an assault, with intent to murder, upon one Benjamin Evans, in June, 1875. On the trial, the State offered to introduce one Jane Jackson, or Evans, to which the accused objected, on the ground that she was his wife.

Tried before Hon. James E. Cobb. The appellant was indicted under the act of February 20th, 1875, for stealing part of an outstanding crop of corn. The evidence showed that he had pulled eight or ten <c roasting-ears,” and that upon being arrested and interrogated by the person from whose field he had taken them, he began to beg and to offer to work for him, if he would not punish, and confessed that he had taken the roasting-ears.

Tried before Hon. John A. Minnis. The opinion states tbe facts. Any person charged by the indictment must be described by his Christian or first name (or that it is unknown) and his surname; and the initial of the first name of the defendant merely being set out, and not his full name, is not such description, and may be made available by plea in abatement disclosing his true name.

Tried before Hon. John A. Minnis. The count of the indictment upon which the trial was had charged that the appellant, Sparrenberger, “being a merchant or shop-keeper, and not a druggist, did keep open shop on Sunday,” against the peace, &c. A demurrer to the count, on the ground that it did not charge the offense of keeping “ open store,” was overruled. The defendant then filed five pleas in abatement.

Tried before Hon. James Q. Smith. The appellant was convicted and sentenced to be hung for the murder of his wife, by poisoning her.

Tried before Hon. JOHN HENDERSON. The appellant was tried and convicted under an indictment, the first count of which charged that “ he altered, forged, counterfeited, or totally obliterated, an order for the delivery of goods, or other instrument in writing, by which a right or interest in property is or purports to be transferred, conveyed, changed or affected, or bond, bill single, bill of exchange, promissory note, or endorsement thereon, in the following words and…

The petitioner, McAnally, was in custody, charged with rape. Bail having been refused him by the probate judge, he now renews his application to this court. McAnally is entitled to bail as a matter of right, unless the evidence leads the minds of the court to the conclusion that he would be punished capitally, on a trial for the offense; and the evidence in this case leaves it in doubt.

<p>Appeal from Chancery Court of Montgomery.</p> <p>Heard before Hon. A. C. Felder.</p> <p>The opinion states the case.</p>

Tried before Hon. WM. S. Mudd. The appellant was tried and convicted of the offeúse óf carrying concealed weapons.

Tried before Hon. John K. Henry. The indictment in this case charged that the “defendant, being then and there a lawyer,” did engage in or carry on the business or profession of a lawyer, without license, &c. He demurred, on the ground that the law requiring such license impaired the contract made with Mm by the State upon his admission to the bar, and violated both section 24, art. 1 of the constitution of Alabama, and section 10, art. 1 of the constitution of the United…

Tried before Hon. H. D. Clayton. The appellant was indicted for maintaining a public nuisance, &c. He demurred to the indictment, but the court overruled the demurrer; and a trial being then had, he was convicted. The indictment is set forth in the opinion. The indictment is entirely too vague and indefinite to support a conviction. 18 Ala. 535; 37 Ala. 123; 29 Ala. 28.

Tried before Hon. W. B. Wool. The appellant was indicted and convicted for carrying concealed weapons. The evidence showed that, at the time of the alleged offense, he was returning in a wagon from Tuscumbia, in Colbert county, to his residence in Franklin county, a distance of twenty-three miles. Upon this evidence, he requested the court to charge the jury, in substance, that he was traveling, and therefore not guilty.

<p>Appeal from Circuit Court of Butler.</p> <p>Tried before Hon. John K. Henry.</p> <p>The opinion states the facts.</p>

Tried before Hon. O. J. Semmes. The opinion states the facts. The indictment was fatally defective, and the demurrer to it should have been sustained. It was too uncertain to authorize a judgment of conviction. It confounded things not forbidden, with those made penal by law. An indictment must conform to the description of the ingredients which the statute describes as constituting the offense. Hirshfelder v. The State, 18 Ala. 115; Eubanks v. The State, 17 Ala. 183.

Tried before Hon. JAS. Q. Smith. This was an action brought by appellant, as administratrix of S. S. Campbell, deceased, against the city council of Montgomery, to recover damages for the killing of her intestate and husband, which, it is averred, was caused by the negligence of the defendant to keep its streets in repair, &c. The complaint contained several counts, to each of which a demurrer was sustained; and plaintiff declining to plead over, judgment final was rendered…

Tried before Hon. John K. Henry. The appellant, Cain McMullen, was indicted and convicted for larceny of a cow, the property of one Flowers. The evidence showed that the cow in question was “marked with a swallow fork in the right ear, and an underbit in the left,” and was “motley white, with some black spots about the head.” She left the pen of her owner in Greenville, in the winter of 1872.

Tried before Hon. James Q. Smith. This was a trial, under the statute, to the right of property to six bales of cotton, between Lehman, Durr & Co., claimants and appellants, and appellees, Warren & Burch, attaching creditors of “D. L. Campbell & Co.,” wbo afterwards recovered judgment against D. L. Campbell & Co. in the attachment suit.

Heard before Hon. B. S. Watkins. Motion by the appellee to dismiss the appeal, on the ground that the record shows no final decree revisable by appeal; and counter motion by appellant, if appellee’s motion should prevail, for a mandamus to the chancellor to vacate and set aside the decree appealed from.

— The petitioner, Hannah Trice, was indicted in the circuit court of Blount, for arson. Having been arrested on a capias, she gave bail for her appearance to answer. On the last day of the fall term, 1874, the circuit judge (Hon. W. J. Haralson), on motion of the solicitor, ordered an inquiry into her sanity. This was had in her absence, and without any notice to her; but counsel represented her, and reserved exceptions in her behalf.

Tried before Hon. Milton J. Saffold, The opinion states the facts. If the note sued on ever became due, it was when the war terminated between the Confederate and United States governments. By express stipulation, it was not payable until peace was concluded and declared. In a legal sense, the state of war or of peace is not a question for the courts to determine. It is a legal fact, ascertainable only from the decisions of the political department.

Dalias. Tried before Hon. George H. Craig. The Southern Insurance Company brought this action against the appellant, and one G. B. Burns, as makers of a promissory note, of which the following is a copy: “ $1,000. Twelve months after date, we, or either of us, promise to pay to the Southern Insurance Company, or bearer, one thousand dollars, for value received, with interest from date, at 8 per cent. W. P. West, “Selma, Ala., June 4th, 1870.

<p> Real Action in Nature of Ejectment. </p> <p>1. Ejectment-, what will defeat recovery in. — In ejectment, a defendant in possession, and not estopped because of some act done by him, or some relation existing between him and the plaintiff, may show an outstanding title in a stranger to defeat a recovery.</p> <p>2. Married woman-, how only could convey lands in 1814. — The territorial statute of 1803 (Clay’s Dig. 155, $ 27) was the only law in force in the year 1814, which authorized a femme covert to pass her real estate, lying in this State, in any other mode than that recognized by the common law.</p> <p>3. Same. — A deed to land made'by a femme covert in 1814, in which the husband did not join, not acknowledged on privy examination apart from the husband, and duly certified, as required by that statute, — will not divest her title, although she had obtained a divorce a mensa et tJioro from the husband ; such divorce did not dissolve the bonds of matrimony, or enlarge the capacity of the femme covert to convey.</p>

Tried before Hon. John Elliott. Tbe facts are sufficiently stated in the opinion. If the city had any authority to make this lease, it must be by virtue of some provision of its charter.

Tried before lion. H. T. Toulmin. The Mayor, Aldermen and Common Council of Mobile, a municipal corporation, brought this action against the Stonewall Insurance Company, a domestic corporation, to recover a balance of a municipal tax, assessed by tbe corporate authorities on the defendants’ capital stock, employed in business during the year 1875.

<p>Appeal from Chancery Court of Madison.</p> <p>Heard before Hon. H. C. Speake.</p> <p>The opinion states the case.</p>

<p>Appeal from Circuit Court of Montgomery.</p> <p>Tried before Hon. Jas. Q,. Smith.</p> <p>The opinion states the case.</p>

Tried before John Elliott. This was a suit formed by the consolidation by agreement of two causes between the same parties. The- cases originated in a justice’s court, and the complaint failed to show that the killing was negligent. A demurrer interposed on this account, ivas overruled. Judgment was rendered in the justice’s court for seventy-five dollars and costs.

Tried before Hon. O. J. Semmes. Tbe appellant Boyd was indicted and convicted for setting up and carrying on a lottery, without the legislative authority, &c., and finéd $1,000. Boyd claimed the right to do the acts for which he was convicted, nnder the provisions of the following act of the general assembly: AN ACT. To establish a mutual aid association, and to raise funds for the common school system of Alabama. Section 1.

Heard before Hon. Adam C. Felder. The opinion states the case. —The bond made by Roberts as administrator, with Waring and Mrs. Moulton as the sureties, was good and valid, though taken by an officer of his illegal government then existing in Alabama. The courts then existing here are to be considered at least as foreign courts, and their judgments and decrees as those of foreign courts. Marlin v. Hewitt, 44 Ala. 418; Bibb & Falkner v. Avery, 45 Ala. 692.

Tried before Hon. H. D. Clayton. On the trial of appellant, charged with the larceny of certain bank bills and currency belonging to W. R. Sudgrove, tbe court permitted him, against the objection and exception of defendant, to testify as “a general witness” against tbe accused; and this is now assigned as error. Sudgrove was directly interested, in a pecuniary point of view, in the conviction of defendant. He was, therefore, incompetent to testify generally in the case.

<p>Appeal from Chancery Court of Montgomery.</p> <p>Heard before Hon. H. Austill.</p> <p>The opinion states the case.</p>

Clair. Tried before Hon. W. L. Whitlock. The appellant and one Cosper were indicted for an affray. Cosper had been tried separately and acquitted, when the present trial was had, and appellant claimed an acquittal on that ground.

Tried before Hon. J. McCaleb Wiley. The appellee, Dill, sued the appellant, Petty, to recover the penalty given by statute for failure to enter satisfaction of a mortgage, which Dill had executed to Petty’s firm, Petty & Son, of which Petty was the surviving member, at the time the mortgage debt was paid and satisfaction demanded.

<p>Appeal from Circuit Court of Wilcox.</p> <p>Tried before Hon. John K. Henry.</p> <p>The opinion states the facts.</p>

Tried before Hon. W. S. Mudx>. Hagood, the appellee, recovered judgment in a justice’s court against the South & North Alabama Railroad Company for the sum of eighty-five dollars, for stock killed by the train of defendant. The railroad company appealed to the circuit court. In that court the plaintiff filed a complaint containing two counts.

Tried before Hon. W. S. Mudd. Miles Brown, the appellee, brought suit before a notary-public, against the South & North Alabama Railroad Company, the appellant, to recover one hundred dollars damages for the negligent killing of his colt. The notary public rendered judgment for the defendant, after trial on the merits, and Brown appealed to the circuit court.