Volume 55 — Alabama Reports

EboM tbe Circuit Court of Cboctaw. Tried before tbe Hon. Luther R. Smith.

Prom tbe Circuit Court of Talladega. Tried before tbe Hon. Geo. H, Craig. Geo. W. PaesoNS, for tbe defendant. — 1. Tbe demurrer to tbe indictment ought to have been sustained. — Bryan v. The State, 45 Ala. 86. 2. Tbe objections to Bell’s testimony were well taken.

FROM City Court of Montgomery. • Tried before Hon. John A. Minnis. These three cases, though decided together, because they presented substantially the same questions, were brought up on separate records, and were argued and submitted at different times.

Fbom: tbe Circuit Court of Henry. Tried before tbe Hon. H. D. Clayton.

Feom the Circuit Court of Henry. Tried before tbe Hon. H. D. Clayton. The defendants in this case, Isaac Childs, Jacob Childs, and Jerry Childs, were indicted for the murder of Mrs. Hosanna You. The case was before the court on a former day of the present term, when the judgment of conviction was reversed, and the cause remanded, as shown by the report of the case, ante, p. 25.

Eeom the Circuit Court of Baldwin. Tried before the Hon. H. T. Toulmin.

FROM the Circuit Court of Limestone. Tried before the Hon. W. B. Wood, Tbe indictment in this case, which contained but a single count, and was found at the May term of said court, 1876, charged the defendants, Phil May and John Pearson, with the murder of James Akard, as the name is copied into the record.

FROM the Court of Quarter Sessions of Perry. Tried before the Hon. Powhatan Lockett. The indictment in this case, which was found at the August term of said court, 1876, contained two counts; the first count charging an assault and battery by the defendant on one Lewis Massey, “using a weapon”; and the second, an assault and battery on said Massey,“ using a chain.” No demurrer, or other objection, was interposed to the indictment.

Feom tbe Circuit Court of Bussell. Tried before tbe Hon. James E. Cobb. Tbe prisoner in tbis case, Charles Meinaka, was indicted for tbe murder of Albertus B. Lyon, by shooting him with a gun; pleaded not guilty to tbe indictment; was convicted of murder in tbe first degree, and sentenced to imprisonment for life in tbe penitentiary.

From: tbe Circuit Court of Dallas. Tried before tbe Hon. Geo. H. Craig.

<p>Feom the Circuit Court of Geneva.</p> <p>Tried before the Hon. Jas. E. Cobb.</p> <p>The indictment in this case was.found at a special term of said court, held on the 19th day of July, 1875, pursuant to an order made and published by Hon. H. D. ClaytoN, tbe presiding judge of the circuit; and charged the defendant with the murder of Aaron Miller. “ At the regular March term, 1876,” as the bill of exceptions recites, “the defendant having been arraigned on a former day of tbe term, and having pleaded not guilty, the cause came on to be beard, and the following proceedings were had: The defendant moved to quash the venire, because tbe names of all those persons who had been summoned by tbe sheriff to appear at this term as regular jurors did not appear on said venire, nor on tbe list served on the prisoner; and proposed to prove, in support of his motion, that on the first day of the term, when the court was organizing the juries, and when the sheriff called the list of those summoned as petit jurors, twenty-eight persons answered to the call; that the court, after selecting and. impanneling two juries of twelve men each, as tbe law requires, did not swear any others, nor retain them, but remarked that no more would be needed, and that tbe others might consider themselves discharged; that this defendant did not consent nor object to this action of the court; and that the four men who were not selected nor sworn were not then present, and had not been specially summoned for this cause, and had not been otherwise summoned as regular petit jurors. The court overruled the motion to quash, and the defendant excepted. 'As the drawing of the jury pioc.eeded, the name Atkinson was drawn; and the defendant again moved to quash the venire, because the person who appeared and answered to said name, and who had been summoned by the sheriff, was named Adkison, and not Atkinson ; which motion the court overruled, and the defendant excepted. The court then proposed to the defendant, that he might have the opportunity or not, at his election, to take said Adkison. The defendant refused to say whether he wished the said Adkison put on him, or not; but, when the court offered said Adkison to him, objected to receiving him, or passing on him. Because of this objection by the defendant, the court caused said Adkison to stand aside, and the name of Atkinson to be discarded, and another to be forthwith summoned to supply his place; which was done. To this action of the court the defendant excepted.”</p> <p>The statute imperatively requires, that all the regular jurors “ summoned for the week” shall be included in the special venire summoned for the trial of a capital case. — Rev. • Code, § 4173. And the same statute requires that the special venire shall consist of “not less than fifty persons;” while the record shows that, excluding the name of Atkinson, or Adkison, not fifty persons were summoned. Again, the indictment is void, because found at a term not authorized by law. Davis v. The State, 46 Ala. 80; Overstreet v. The State, 46 Ala. 30; Oarliek v. Dmn, executor, 42 Ala. 404.</p> <p>cited Session Acts 187U-5, p. 201; Fields v. The State, 62 Ala. 349; Rev. Code, § 4177; Hall v. The State, 40 Ala. 698; Bill vJ The State, 29 Ala. 34; Birdsong v. The State, 47 Ala. 68; Wesley v. The State, 52 Ala. 182.</p>

Eeom the Circuit Court of Limestone. Tried before the Hon. W. 33. Wood.

From tbe Circuit Court of Hale. Tried before tbe Hon. George H. Craig.

Tried before tbe Hon. H. D. Clayton. At tbe April term of said court, 1875, tbe appellants in tbis case entered into a recognizance, or undertaking, in these words : “ Know all men by these presents, that we, Oscar Youngblood, and J. H. Williams, Peter Hongb, Henry Bush, S. J. Williams, acknowledge ourselves to be indebted to the State of Alabama, in tbe sum of five hundred dollars; to be void upon tbe condition that the said Oscar Youngblood and J. H. Williams shall appear…

Feom: tbe Circuit Court of Wilcox. Tried before tbe Hon. John 5L Henry.

<p>Indictment for Carrying Concealed Weapons,</p> <p>1. Return to ceiiiorari to complete transcript. — In making out a transcript in return to a certiorari from this court, it is the duty of the clerk to confino himself to the omissions or defects specially pointed out in the certiorari, and he has no authority to make alterations in other parts of the transcript, to which no objection was here made.</p> <p>2. Exception to charge; when sufficient in certainty, — An exception which is not presented with reasonable certainty, will not be entertained; an exception “to the latter portion of said charge,” when the charge consists of several sentences, or “to so much of the charge as commences with the words, ‘if the jury believe,’ on the fourth line from the bottom of the preceding page,’’ is wanting in certainty and definiteness.</p> <p>3. Carrying concealed weapons; exception as to self-defense. — If a person carries concealed'weapons for the purpose of offense, intending to make or provoke an attack, he can not justify on the ground of self-defense (Rev. Code, § 3555), although he may have been threatened with, or may have good reason to apprehend an attack.</p>

Ebom tbe Circuit Court of Wilcox. Tried before tbe Hon. JOHN K. Henby. Tbe defendant in tbis case was indicted for tbe larceny of “part of an outstanding crop of corn,” wbicb was averred in tbe indictment, in tbe alternative, to be tbe property of J. H. Thompson, J. J. Morse, and W. Colton, or of a partnership composed of those three persons, or of certain persons whose names were to tbe grand jury unknown; and pleaded not guilty to tbe indictment.

FROM tbe Circuit Court of Butler. Tried before tbe Hon. JOHN K. Henry.

Erom tbe Circuit Court of Cboctaw. Tried before the TIou, Luther E, Saiitii. The defendant in this case, John B. Gray, was indicted for the murder of Edward H. Ward; was convicted, and sentenced to death. On his trial, he reserved a bill of exceptions to several rulings of the court, which it is not necessary to state in full, since the opinion of this court shows the rulings deemed material.

FboM tbe City Court of Montgomery. Tried before tbe Hon. JohN A. Mrroris.

EeoM tbe Circuit Court of Perry. Tried before tbe Hon. Geo. H Ceaig. Tbe defendant in this case, Lucius Porter, a freedman, was indicted and tried, jointly with three other freedmen, Albert Young, Silas Smith, and Robert Jones, for tbe murder of Isaac I). Moore; was convicted of murder in tbe first degree, and sentenced to death, while there was a mistrial as to tbe other defendants.

Ebom; the Circuit Court of Cleburn. Tried before the Hon. Wat. L. Whitloce.

<p> Indictment for Enticing or Employing Laborer under Written Contract. </p> <p>1. Enticing away, or employing, servant or laborer under m'iiten contract; validity of infant’s contract. — An infant’s contract, for the performance of labor or personal service, is voidable by him at his election ; and when he lias dis-affirmed it, a person who afterwards employs him is not guilty of a violation of the statute (Rev. Code, § 3691), which makes it a penal offense to entico away or employ a laborer or servant, who has contracted in writing to serve another for a specified time, “such contract being in force, and binding on the parties thereto.” (Overruling Murrell v. The State, éá Ala. 367.)</p>

Eeom the Circuit Court of Wilcox. Tried before tbe Hon. JOHN K. Henky.

FROM the Circuit Court of Randolph. Tried before the Hon. John Henderson, The indictment in tbis case contained but a single count, wbicb charged that the defendant, William Lawson, “engaged in, or carried on, the business of retail dealer in spirituous, vinous, or malt liquors, in a place in said county not an incorporated city, town, or village, without a license, and contrary to law, or without having first taken out a license and paid therefor, at Louina, in said county;…

From the Circuit Court of Butler. Tried before tbe Hon. Jno. K. Henry.

<p>FROM the Circuit Court of Wilcox.</p> <p>Tried before tbe Hon John X. Henry.</p> <p>Tbe defendant in tbis case was indicted for breaking and entering tbe drug-store of Hr. John Paul Jones in tbe town of Camden, with tbe intent to steal, and stealing money from the- drawer. Tbe evidence adduced on tbe trial, as to wbicb there was no controversy, showed that be entered tbe store through tbe open door, and secreted himself behind tbe counter; tbat the clerk, haying occasion to leave the store, shut the windows', and closed and locked the door, leaving the defendant so secreted; and that the defendant, during the absence of the clerk, opened the money drawer, took from it between nine and ten dollars, and escaped through one of the back windows, which he opened. On this evidence, the defendant asked the court to charge the jury as follows: “If the jury believe, from the evidence, that the front door of the store was open, and, being open, the defendant entered, and secreted himself under the counter; and that the clerk of the store went out, and shut and locked the door, locking up the defendant in the store; and that the defendant, while thus locked up, took money out of the drawer, and went out of the house by opening a window,— then the defendant would not be guilty of burglary as charged in the indictment.” The court gave this charge, but added to it the following explanation, or qualification: “If ¡the jury find, from the evidence, that he so entered the house jwith the felonious intent to secrete himself therein for the [purpose of stealing therefrom, then it would, in legal contemplation, constitute breaking the houseto which explanation, or qualification, the defendant excepted.</p> <p>cited Commonwealth v. Strupney, 105 Mass. 588; Bex v. Smith, 1 Moody’s Or. Cases, 178; Pines v. The State, 50 Ala. 153; Roscoe’s Or. Ev. 340-4, 368; 1 Hale’s P. 0. 553^=; 3 Bla. Com. 226; 2 Lead. Or. Oases, 53; 16 Amer. Rep. 769.</p> <p>cited Donohoo v. The State, 36 Ala. 281; Walker v. The Stale, 52 Ala. 376; 2 Bishop’s Orim. Law, § 92; 1 Russell on Crimes, 791; 1 Lead. Or. Oases, 540-41.</p>

Ebom the Circuit Court of Chilton. Tried before tbe Hon. Jambs Q. Smith. Tbe indictment in this case contained several counts, wbicb charged, in substance, tbat tbe defendant, as county solicitor, knowingly received from one Reynolds, in tbe prosecution of three cases against Ben Stevens for petit larceny, greater fees than he was by law authorized to charge and receive.

Tried before the Hon. Geo. H. Craig. The indictment in this case was found on the 24th May, 1876, and charged that the defendant, Anna Mixon, “unlawfully set fire to and burned an inhabited dwelling-house of W. J. Morrison.” On Friday, the 16th June, a day of the same term of the court, the defendant was regularly arraigned on this indictment, and pleaded not guilty; and after the trial had been begun, “ and one witness for the State had been examined,” as the minute entry…

Tried before tbe Hon. John K. HenRY. Tbe defendant in tbis case, wbo was a practicing physician, was indicted for a violation of tbe revenue law in failing to take out a license.

FROM the City Court of Montgomery. Tried before the Hon. JoHN A. Minnis. Neither the docket nor the transcript shows the name of any attorney as counsel for the prisoner; and there is no brief on file.

Feom the Circuit Court of Bibb. Tried before the Hou. JOHN Henderson.

Feom tbe Circuit Court of Lowndes. Tried before tbe Hon. James Q. Smith.

FROM the Circuit Court of Shelby. Tried before the Hon. John Henderson.

From tbe Circuit Court of Wilcox. Tried before tbe Hon. JOHN K. Henry.

EbOM the Circuit Court of Escambia. Tried before the Hon. John K. Henry. The defendant in this case, Henry Morningstar, was indicted for the larceny of “ a large stick of square hewn pine timber, of the value of fifty dollars, the personal property of Mrs. Nancy Georgewas convicted, and fined one hundred dollars. The bill of exceptions purports to Set. out all the evidence adduced on the trial, but it is not necessary to state it.

Fbom tbe Circuit Court of Baldwin. Tried before the Hon. H. T. Toulmin. The indictment in this case charged, that the defendant “feloniously took and carried away a steer, the personal property of Mary O’Neal.” The defendant pleaded not guilty, but was found guilty by the verdict, of the jury, and sentenced to imprisonment in the penitentiary for the term of two years.

From tbe City Court of Selma. Tried before tbe Hon. Joña. Haralson.

<p> Indictment for Living in Adultery or Fornication. </p> <p>1. Proof of marriage. — la criminal prosecutions for adultery, marriage is a necessary ingredient of the offense, and must be proved; and while the declarations and conduct of the parties living together, holding out to the world that such relation exists between them, are competent evidence, general reputation is not.</p> <p>2. Charge as to. sufficiency of evidence. — In a criminal case, a charge which instructs the jury, in effect, that they may convict unless they can reconcile all the suspicious facts proved, and make them harmonize with the defendant’s innocence, is erroneous.</p> <p>3. (Jharge on part of evidence. — A charge requested, which, specifying one or two of the facts proved, instructs the jury that “this, in the absence of other suspicious circumstances, does not necessarily establish the crime ” charged, is properly refused.</p>

Ebom the Circuit Court of Pike. Tried before the Hon. H. D. Clayton.

Eeom the City Court of Montgomery. Tried before the Hon. John A. Minnis.

ErtoK tbe Circuit Court of Eandolpb. Tried before tbe Hon. John Hendebson.

<p>EeoM the City Court of Mobile.</p> <p>Tried before tbe Hon. O. J". SeMMES.</p> <p>Tbe defendant in this case, Edmund May, was indicted for burglary in breaking into and entering a “ hen-house,” tbe property of Manuel Forcheimer, with intent to steal. The indictment contained three counts, in which the house broken into was described as — 1st, “a building within the curtilage of the dwelling-house2d, “a building, structure, or inclosure, commonly known and described as a hen-house, within the curtilage of the dwelling-houseand, 3d, “the hen-house of Manuel Forcheimer, in which goods, wares, merchandise, or other valuable things, to-wit, one dozen hens, of the value of fifty cents each, and one rooster, of the value of fifty cents, were at the time kept for use, sale, or deposit.” On the trial, the jury returned a verdict of “ guilty as charged in the third, count.” Afterwards, the defendant moved in arrest of judgment, “ on the ground that the third count charged no.offense and the court sustained the motion. The defendant then asked to be discharged, but tbe court refused to discharge him, and ordered him to be held in custody to answer a new indictment; to which ruling tbe defendant excepted, and he here assigns it as error.</p> <p>citing Bell & Murray v. Tim Skate, 48 Ala. 684; Goleman & Owens v. The State, 3 Ala. 14; Nancy v. The State, 6 Ala. 483 ; Burns v. The State, 8 Ala. 313.</p> <p>cited Eev. Code, § 4146..</p>

Ebom the City Court of Montgomery. Tried before the Hon. John A. MiNNis.

From the City Court of Montgomery. Tried before the Hon. John A. Minnis. The defendant 'in this case was indicted, at the July term of said court, 1875, for carrying on “ the business of taking pictures,” without having taken out a license under the provisions of the revenue law approved March 19,1875; but that indictment was quashed, on motion of defendant, and a new indictment was ordered by the court to be preferred for the same offense. — -Rev. Code, § 4146.

AppeaI from tbe Circuit Court of Tusbaloosa. Tried before tbe Hon. Wm. S. Mudd. Tbe sureties are excused for tbe non-performance of tbe condition of tbeir bond, when performance was prevented by “tbe act of tbe law.”— Bacon’s Abr., tit. Condition, 2; 8 Cowen, N. Y. 298-9. That an arrest and imprisonment for another offense is tbe act of tbe law, see People v. Bartlett, 3 Hill, N. Y. 570; Belcling v. The State, 25 Ark. 315; S. C., 4 Amer. Rep. 27.

Ebom: the Circuit Court of Wilcox. Tried before the Hon. JohnK. Heney. Tbe defendants in this case, Anthony Coleman and Harriet Coleman, were jointly indicted and tried for tbe murder of Eobert Hall, alias Eobert Thigpen; and were convicted of manslaughter in the first degree.

Fec* the Circuit Court of Lee. Tried before tbe Hon. James E. Cobb. Tbe indictment in tbis case was found at tbe November term of said court, 1876, and contained two counts; tbe first charging larceny, and tbe second tbe receiving of stolen goods knowing them to bave been stolen. In each count, tbe goods were described as tbe personal property of R. G. Williamson.

Appeal Rom tbe Circuit Court of Talladega. Tried before tbe Hon. John Henderson. Tbe prisoner in tbis case was indicted for tbe forgery of an instrument of writing, wbicb was in these words: “ July lOtb, 1876.

FROM tbe Circuit Court of Talladega. Tried before tbe Hon. Jons HendersoN.

Ebom: tbe Court of Quarter Sessions of Perry. Tried before tbe Hon. Powhatan Lockett.

Fkom the Circuit Court of Butler. Tried before tbe Hon. John N. Henry. The indictment in this case contained only one count, which charged that the defendant committed a rape on Martha E. Locke. He pleaded not guilty, and was tried on issue joined on that plea; was, by the verdict of the jury, convicted of an assault with intent to commit a rape, and was sentenced to imprisonment in the penitentiary for the term of five years.

FftOM tbe Circuit Court of Elmore, on ebange of venue from Coosa. Tried before tbe Hon. James Q. Smith.

Eeom; from the Circuit Court of Sumter. Tried before the Hon. Luther B. Smith. The defendant in this case was indicted under the statute against gaming (Bev. Code, § 3620), the indictment being in the general form authorized bylaw; and he was convicted, under the charge of the court, on proof that he had, within the time covered by the indictment, played a game of backgammon at a railway station in the county.

Ebom the Circuit Court of Coosa. Tried before the Hon. JoHN HendebsoN.

Fbom the Circuit Court of Q-reene. Tried before the Hon. Luther B. Smith. The indictment in this case, which was found in April, 1875, contained two counts; tbe first charging that tbe defendants, John Bowland and Thomas McAlpine, “with intent to steal, broke into and entered tbe cotton-house of Hr.

Feom the Circuit Court of Greene. Tried before the Hon. Luther R. Smith, The indictment in this case, which was found on the 6th January, 1876, contained two counts ; the first charging that the defendant, “ with intent to steal, broke into and entered the dwelling-house, house within the the curtilage of the dwelling-house, shop, store, warehouse, smoke-house, or other building of T. 0.

<p>Feom tbe City Court of Montgomery.</p> <p>Tried before tbe Hon. JNO. A. MiNNis.</p> <p>Tbe indictment in this case contained two counts; tbe first charging tbat tbe defendant “was tbe keeper of a bouse of prostitution, and bad no honest employment whereby to maintain herselfand the second, that she did, “ within said county of Montgomery, knowingly keep and maintain a certain common nuisance, to-wit, a bawdy-house, then situate within the city of Montgomery, and then and there kept and used as a bawdy-house, and then and there resorted to for the purpose of prostitution and lewdness; and for her own lucre and gain, certain persons, whose names are to the grand jury unknown, as well men as women, of evil name and fame, and of dishonest conversation, to frequent and come together did, unlawfully and willfully, cause, permit, and procure; and said men and women, in said house, as well in the day as in the night, there did suffer and permit to be and remain whoring; to the common nuisance of all good citizens there residing, passing, and being, and in evil example to all others in like case offending; against the peace,” &g. The defendant demurred to the indictment, as the judgment entry recites, “for duplicity, and for misjoinder of offenses ; whereupon, the State, by its solicitor, asked leave of the court to enter a nolle-prosequi to the first count of the indictment ; which motion was allowed by the court, without passing on said demurrer, and the defendant excepted. The defendant then moved the court to quash the indictment, on the ground that there was no valid indictment in court; which motion the court overruled, and then required the defendant to plead to the remaining .count in the indictment ; to which the defendant objected and excepted. The defendant then demurred to the remaining count in the indictment, which demurrer the court overruled; and the defendant then, being duly arraigned upon said indictment, pleaded not guilty.”</p> <p>“ On the trial,” as the bill of exceptions states, “ the State introduced witnesses tending to show, that the general character of the inmates of the house kept by the defendant, for virtue and chastity, was bad; to which evidence the defendant objected, but her objection was overruled, and she thereupon duly excepted. The State then asked a witness, if he know the general reputation of said house; to which the witness answered, that he knew the reputation of the house to be that of a house of prostitution. To this question and answer, each, the defendant objected separately;” and reserved exceptions to the overruling of her objections.</p> <p>The rulings of the court on the pleadings and evidence, as above stated, are now presented for revision.</p> <p>1. The court erred in not sustaining the demurrer to the indictment. The two counts charged different offenses, wbicb could not properly be joined in the same indictment. — The State v. Oovy, 4 Porter, 186; Ooleman v. The State, 5 Porter, 32 ; Norvell v. The State, 50 Ala. 174; Amer. Grim. Law, vol. 1, § 395. The defendant was entitled to the benefit of her demurrer, and the consequences of the misjoinder could not be avoided by striking out one of the counts. — Bose v. The State, Minor, 28.</p> <p>2. The court erred in admitting evidence of the general reputation of the house and its inmates. — Amer. Grim. Law, vol. 3, § 2367; Gommonioealth v. Hopkins, 2 Dana, 418 ; Over-street v. The State, 3 How. Miss. 328; United States v. Jour-dine, 4 Cranch, 338 ; People v. Mauch, 24 How. N. Y. Pr. 276; Commomoealth v. Stewart, 1 Serg. & B. 342.</p> <p>There was no misjoinder of offenses in the indictment. The two offenses charged belong to the same class, and are subject to the same land of punishment, differing only in the degree of severity. — Cawley v. The State, 37 Ala. 152, and authorities there cited; Oliver v. The State, 37 Ala. 134; Scott v. The State, 37 Ala. 122 j Johnson v. The State, 29 Ala. 62. Even if there was a misjoinder, the solicitor had a right, with the consent of the court, to enter a nolle-prosequi as to one count, notwithstanding the'demurrer. — Bev. Code, § 4150; United States v. Stoiodl, 2 Curtis, 0. 0. 153. As there was no judgment on the demurrer, there is nothing for this court to revise in reference to it. — Lewis v. Paul, 42 Ala. 140.</p>

EboM the City Court of Montgomery. Tried before 'the Hon. J. A. Murais.

Fbom: the Circuit Court of Randolph. Tried before the Hon. JOHN Hendebson. The prisoner in this case, a freedman, was indicted in the Circuit Court of Cleburn county, for the murder of one Benjamin M. Alsobrooks; removed his trial to Randolph county, where he was tried, convicted of manslaughter in the first degree, and sentenced to imprisonment in the penitentiary for ten years.

Application by petition for tbe writ of habeas corpus, to obtain tbe discharge of tbe petitioner, Joseph McKivett, from custody and imprisonment under a judgment and sentence imposed by John B. Fuller, a justice of tbe peace in and for the county of Montgomery. The application was first made to Hon. John A. Mjnnis, judge of the City Court of Montgomery, by whom it was refused.

Feom the City Court of Selma. Tried before the Hon, JoNA, HaraIsoN. The indictment in this case, which charged the defendant with tbe larceny of a bog, tbe personal property of Ales.

Ebom tbe City Court of Selma. Tried before tbe Hon. Joka. Habalson. Tbe indictment in this case was in these words: “ Tbe State of Alabama, Dallas county: City Court, January term, 1877.

<p>Eeom the Circuit Court of Dallas.</p> <p>Tried before the Hon. Geo. H. Craig.</p>

The defendant in this ease, Monroe L. Weaver, was in-dieted in the Circuit Court of Cherokee, in September, 1876, for the murder of James Weaver; and sued out a habeas corpus before the Hon. James H. Leath, the probate judge of said county, to obtain his discharge on bail.

Feom tbe City Court of Montgomery. Tried before tbe Hon. John A. Minsk.

The petitioner in this ease, Brad Allen, was indicted in the Circuit Court of Choctaw, at its October term, 1876, for the murder of Frank Allen, his brother; and having been arrested under a capias, a writ of habeas corpus was sued out, returnable before the Hon. B. H. Wabben, the probate judge of said county, to obtain his discharge on bail.

Eboh the Circuit Court of Pike. Tried before the Hon. H. D. Clayton. The indictment in this case, which was found at the October term, 1875, charged that the prisoner, “ Eli E. Lee, alias Tobe Lee, unlawfully, and with malice aforethought, killed George W. Carroll, by shooting him with a pistol.” The defendant pleaded not guilty, and the trial was had on- issue joined on that plea.

Ebom: tbe City Court of Montgomery. Tried before tbe Hon. JohN A. Monas.

APPLICATION by George R. Mason for a mandamus to Hon. Willis Bbeweb, State auditor, to compel that officer to draw bis warrant on the State treasurer, in favor of the petitioner, for the sum of $582, the amount of the petitioner’s account, as sheriff of Dallas county, for feeding prisoners in the county jail of Dallas, during the month of May, 1877, at the rate of forty cénits per day.

EboM the Circuit Court of Limestone. Tried before the Hon. W. B. Wood. The defendant in this case was indicted in the Circuit Court of Madison, and the trial was remoyed on his application to Limestone. The indictment contained but a single count, which charged that the defendant, Benjamin Yasser, “forcibly ravished Rodah Aires, a female.” The opinion states all the material facts.

Tried before tbe Hon. M. J. Saeeold. This action was brought bj Mrs. Margaret K. Jones, suing as the administratrix of her deceased husband, William A. Jones, against Edmund B. Booker, William N. Knight, Daniel T. Webster, Henry E. Wilson, and Henry H. Happel; and was commenced' on the 3d March, 1868.

Heard before the Hon. Adam: C. Eelder. The bill in this case was filed on the 23d March, 1871, by Mrs. Phoebe Ann Stewart, suing. by her husband and next Mend, against John W. Daniel, to recover the possession of a tract of land, which the complainant claimed as belonging to her statutory separate estate, and wMch was in the possession of said Daniel, who claimed title under a deed ese-euted to Mm by tbe complainant in 1863; also, for an account of tbe rents and profits, and…

Heard before the Hon. A. W. Dillabd. This case was before this court at its June term, 1872, when the decree of the chancellor was reversed, and the cause… Held: and the further fact that the deed was not recorded until the first day of court — all are strong indications and badges of fraud.- — Dent v. Portwood, 21 Ala. 588; Jones v. Stewart, 19 Ala. 701; Montgomery v. Kirhsey, 26 Ala. 172; Smith v. Henry, 2 Bailey, 123; Iiudnal v. Wilder, 4 McCord, 294; 11 Sm. & Mar. 469.

Tried before tbe Hon. John A. Minnis. Tbis action was brought by tbe appellant to recover damages for tbe seizure and sale by tbe sheriff, at tbe instance of tbe defendant as plaintiff in attachment, of certain personal property which tbe plaintiff claimed as exempt from seizure and sale under legal process.

Heard before the Hon. Adak 0. Eeldeb. The original bill in this case was filed by the Alabama Gold Life Insurance Company, against the widow, children, and administrator of Alexander Short, deceased, .and also against Julius Weber, and Lloyd Bowers; and sought an account and foreclosure of three mortgages on a city lot in Mobile, which were executed by said Alexander Short and his wife, on different days, to the said Bowers, Weber, and complainant, respectively.

These cases, tbongh decided together, were argued and submitted at different times. The case of Miller v. Marx is an appeal from tbe Chancery Court at Mobile, and was heard before the Hon. AdaM C. Felder ; the case of Smith’s Adm’r v. Smith is an appeal from the Probate Court of Choctaw, and was heard before the Hon. J. S. Evans ; and the case of Anthony’s Adm’r v. Anthony, an appeal from the Probate Court of Greene, was heard before the Hon. Thos. W. Bobeets.

Heard before the Hon. Charles Turner. The bill in this case was filed on the 20th September, 1873, by John McGuire, against Herman Yan Pelt and D. J. Fail, and asked the cancellation of a mortgage on… Held: the decisions place it on the ground that the statute provides no means of partition; but that objection cannot obtain here, where ample remedy is provided. The wife of a tenant in common is entitled to dower.- — Ohaney v. 0 haney, 38 Ala. 35. 2.

Heard before tbe Hon. John C. Moebow. In tbe matter of tbe petition of Mrs. S. A. Chambers, tbe widow of J. G. Chambers, deceased, for tbe allotment of a homestead for herself and her two infant children, in a certain town lot in Birmingham; which was contested by the administrator and certain creditors of the deceased.

Heard before tbe Hon. Chart;es Tuekeb. Tbe original bill in tbis case was filed on tbe 23d January, 1873, by J ames D. McQueen and Mrs. Elizabeth S. Coleman, tbe wife of Stephen W. Coleman, who sued by ber next friend and brother, tbe said James D. McQueen, against tbe said Stephen W. Coleman, William D. Smith, and W. J. Boon, the sheriff of said county; and sought to enjoin and restrain the said W. D. Smith from selling certain lands under a mortgage executed to him by the…

Tried, before tbe Hon. Wm. S. Mudd. This action was brought by Lucien A. Baxter, against Thomas McConnaughy, to recover a town lot in Birmingham, to which the plaintiff derived title, under a purchase at sheriff’s sale, made pursuant to an order of the Circuit Court, after the levy of an execution from a justice’s court, issued on. a judgment rendered by the justice, in favor of tbe plaintiff, and against the defendant in this action; and which the defendant claimed as his…

Tried before tbe Hon. James Q. Smith. This was a motion to set aside a sheriff’s sale of lands under execution. Tbe judgment on wbicb tbe execution was issued, was rendered on tbe 26tb June, 1868, in favor of Erank Boy-kin, against Jacob Eabel and Jonathan E. Price. Tbe sale under execution was made on tbe 4tk October, 1869, tbe plaintiff in the judgment becoming bimself the purchaser, by bis attorney, at tbe price of $135.

Tried before the Hon. M. J. Saeeold. This action was brought by Ben.

Heard before tbe Hon. H. Austill. Tbe bill in tbis §ase was filed by tbe appellant, on tbe 8th February, 1873, and sought to subject a certain bouse and lot in tbe city of Montgomery, alleged to belong to Mrs. Sallie A. Buell, one of tbe defendants, as her statutory separate estate, to tbe payment of a judgment which the complainant bad obtained, before a justice of tbe peace, against James Buell, .her husband and co-defendant; on tbe ground that tbe judgment was founded on…

Aepeal from the Circuit Court of Montgomery. Tried before the Hon. James Q. Smith. Tbis action was brought by Allen Bibb and Lindsay Bibb against Lehman, Durr & Go., warehouse-men in the city of Montgomery, to recover damages for the conversion of two bales of cotton, which the defendants had received for storage from one Marx, and which the plaintiffs claimed and demanded of them.

Heard before the Hon. A. W. Hillabd. The original bill in this case was filed on the 17th December, 1870, by Nelson W. Perry and others, owners of city lots in Mobile fronting on Commerce street, on behalf of themselves “ and such other persons as may associate themselves herein, having a common interest in the rights hereinafter named,” against the New Orleans, Mobile & Chattanooga Bailroad Company, a corporation created in Alabama by an act of the legislature approved…

Heard before tbe Hon. H. Austill. Tbe bill in this case was filed by tbe appellee, on tbe 31st July, 1874, and sought a divorce from ber husband, on tbe ground of cruel treatment; and she also asked a decree giving her tbe custody and control of ber infant child, a girl four or five years old, tbe only issue of tbe marriage, and an injunction to prevent ber husband from removing it out of tbe county.

Heard before the Hon. Adam C. Felder. The bill in this case was filed on the 10th August, 1871, by the children and heirs-at-law of Samuel McQueen, deceased, wbo were also legatees and devisees under bis will, against Richard H. Cross, as the executor of the last will and. testament of said Samuel McQueen, James Chambers, who was the only solvent surety on said executor’s official bond, and J ames G. McQueen; and sought to enforce a vendor’s lien, for the purchase-money of a…

Tried before the Hon. James Q. Smith. This action was brought by Eugene B. Philpot, against Arthur Bingham, to recover an undivided half interest in a certain city lot in Montgomery; and was… Held: and claimed the entire and absolute interest and ownership in the property, and relied on deeds which purported to convey the entire property.

Heard before the Hon. A. W. Dillard.. The bill in this case was filed on the 23d December, 1873, by Mrs. Mary Jane Eoscue and her two children, Ellen Eos-cue and Erank L. Eoscue, against Erancis S. Lyon; and sought an account and settlement of a trust created by the will of Augustus Eoscue, who was the father of Mrs. Mary .Jane Eoscue, and whose last will and testament was duly admitted to probate, in said county, in May, 1861, soon after his death.

Tried before the Hon. H. T. Toulmin. This action was brought by Isabella P. Stewart and W. W. McGuire, the latter suing as the personal representative of Eleanor M. Cannon, deceased, against John Trenier, to recover the possession of a tract of land (or a four-fifths interest therein) which forms a part of Mon Louis Island; and was commenced on the 12th September, 1888.

Tried before tbe Hon. Lutheb B. Smith. Tbis action was brought by A. W. Dillard, against John 0. Webb, to recover ñve bead of cattle, together with damages for their detention; and was commenced on tbe 13th May, 1874.

Heard before the Hon. Adam: C. FeldeR. The bill in this case was filed on tbe 13tb September, 1870, by Paul A. Roulo and Philip J. Boulo; and sought to enjoin and restrain the defendant, the New Orleans, Mobile, and Chattanooga (now Texas) Railroad Company, from subjecting to its own uses a narrow strip of land in tbe city of Mobile, between Commerce street and tbe river, and forming a part of tbe river front.

Heard before the Hon. H. Austell. The bill in this case was filed on the 10th March, 1875, by the trustees of St. Joseph’s Academy, a corporation chartered under the laws of Mississippi, against Pierre Augus-tini, and Mary Emma, his wife (formerly Mary Emma Piz-zini),. and Madelaine (or Ida) Pizzini, an infant; and sought to subject certain lands, belonging to the said Mary Emma and Madelaine (or Ida), to the payment of a debt due to the complainants, for their board and…

Heard before the Hon. A. W. Dillakd. The bill in this case was filed on the 14th October, 1873, by David Creswell and his sis children, against James Crawford and Samuel L. Creswell as trustees, and against their children as legatees in remainder, of a certain trust fund created by the will of Bobert Creswell, who died in 1850. The material limitations of the trust are stated in the opinion of the court.

Tried before tbe Hon. James Q. Smith. This action was brought by tbe appellants, wbo were children and heirs-at-law of Benjamin E. Tarver, deceased, to recover the possession of a plantation in said county, of which the said Benjamin E. Tarver was seized and possessed at the time of his death, and which the defendant held and claimed under mesne conveyances from B. C. Tarver as the executor of said Benjamin E. Tarver. The action was commenced on the 20th of May, 1874.

Tried, before the Hon. H. T. Toulmik. This action was brought by T. J. Harrison against John. W. Simons, to recover a town lot in St. Stephens, and was commenced on the 27th of August, 1873. The defendant pleaded not guilty, and the statute of limitations ; and issue was joined on these pleas. Both parties claimed title under E. W. Barnett, deceased.

Heard before tbe Hon. Charles Turker. Tbe bill in this case was filed on tbe 7th of January, 1872, by John 3). Alexander, Fred.

Heard before the Hon. B. B. McOeaw. The bill in this case was filed on the 27th May, 1874, by Mary E. James, James James, and Melissa E. O’Neil, who sued by said James James as her nest friend, surviving children and heirs-at-law of Sylvester James, deceased, against Lee L. J ames individually, who had been the administrator of the estate of said Sylvester J ames; and sought to enforce against the defendant a constructive trust in favor of the complainants, on account of the…

Tried before the Hon. Jas. E. Cobb. This action was brought bj the appellant against the appellee, each being a body corporate, to recover the sum of $8,007.83, alleged to be the defendant’s pro-rata share of the county debt of Chambers on the 5th December, 1866, when Lee county was created; together with interest thereon.

Heard before tbe Hon. CHARLES Turker. The original bill in this case was filed on the 29th April, 1875, by w. T. Hatchett and Benj. Trimble, suing individually, against A. T. Hughes; and sought to subject a certain tract of land, described as “section fifteen (15) and fractional section twenty-two (22), west of the Coosa river, in Elmore county,” which the complainants had sold to said Hughes, to the payment of one of the notes given for the purchase-money.

Heard before tbe Hon. Chables Tubnee. Tbe bib. in tbis case was filed on tbe 22d October, 1874, by W. T. Hatchett, against A. G. Campbell, David Campbell, Archie Campbell, and E. H. Mann; and sought to reform a written lease executed between said Hatchett and A. G. OampbeU, and to enforce tbe complainant’s statutory lien, as landlord, on tbe crop grown on tbe leased lands during tbe year 1874.

Tried before tbe Hon. M. J. Saeeold. This was a trial of tbe right of property in seven bales of cotton, twelve bales gathered but not ginned, and twelve hundred bushels of corn, on which an attachment was levied at the suit of Boswell & Woolley against Henry 0. Spears, • on the 24th September, 1873, and to which a claim was interposed by Carlisle, Jones & Co., and bond given to try the right of property, as provided by the statute.

Tried before the Hon. Luther B. Smith. Tbis was a summary proceeding, by notice and motion, to sell certain lands, alleged to belong to tbe statutory separate estate of Mrs. Georgia H. Wright, the appellant, in satisfaction of a judgment, which the plaintiffs (appellees) had recovered against her husband, John V. Wright, as hereinafter stated. The record does not show at what time it was commenced.

Appear from the Circuit Court of Dallas. Tried before the Hon. Geo. H. Craig. This action was brought by M. Meyer & Co., a mercantile partnership, against John T. Bender and Nancy C. Bender, his wife ; was commenced on the 10th. February, 1874, and was founded on an account, amounting to $351.46, for goods, wares, and merchandize, sold and delivered by the plaintiffs to said John T. Bender, between the 19th December, 1871, and 26th October, 1872.

Heard before tbe Hon. A. W. Dillabd. The bill in this case was filed, on the 27th April, 1871, by E. P. Snedicor, as the administrator de boiás non of the estate of John R. Coleman, deceased, against Mrs. Parmelia E. Cockrell, and Maclin R. Cockrell, her husband; Edward Pearson, Moses H. Pearson, Charles 0. Coleman, and John W. E. Temple.

Heard before the Hon. Charles Turker. Tbe bill in tbis case was filed on tbe 22d December, 1875, by John Lee, Edgar Lee, and Mary Lee, tbe two latter being infants, and suing by tbe said John Lee as their nest friend, against their guardian, John H. Lee, and the several sureties on his official bonds as sucb guardian, to-wit: E. A. Bates, W. B. Modawell, J. H. Speed, J. W. Crenshaw, A. B. Lane, W. M. Brooks, W. C. Wyatt, Harriet Johnston, W. Bj.

Tried before the Hon. Lutheb B. Smith. This action was brought by Thomas W. Coleman, late county solicitor of Marengo, against the said county, to… Held: that a repeal of the statute of limitations, so far as respects claims already barred, is void. — 3 N. H. 473. But section 909 of the Bevised Code is more than an ordinary statute of limitations; it not only bars and talles away tbe remedy, but destroys and extinguishes the debt or claim, like the statute of non-claim.

Heard before tbe Horn Charles Turher. Tbe material facts of this case may be thus stated: In August, 1862, Robert T. Asburst purchased a tract of land from Robert Thompson, at tbe agreed price of… Held: that the object of the bill was to have the transaction between Ashurst and Micou declared a mortgage, and that tbe complainant was entitled to a decree to that effect, though the bill was not framed for redemption.

Tried before tbe Hon. Luther E. Smith. This action was brought by Eeuben Chapman, against the personal representative of Mrs. Susan E. Lee, deceased, to recover the sum of $1,071.40, with interest thereon from the 1st day of January, 1859, the alleged unpaid balance of the purchase-money for a tract of land sold and conveyed by the plaintiff to Mrs. Lee in her life-time; and was commenced on the 9th September, 1865.

Appear from the Chancery Court of Marengo. Heard before the Hon. A. W. Hillard. The bill in this case was filed on the 28th February, 1870, by Lewis C. Carlin, against Maria S. Jones and her husband, William B. Jones; and sought a redemption of a certain tract of land, of which the defendants were in possession, with an account of the rents and profits.

Heard before tbe Hon. Chables TüBNEB, This is an appeal from an order appointing a receiver, and is a branch of the case between the same parties, reported ante, pp. 539-47, which see. The material facts are stated in the opinion of the court, and in the former report. Hatchett & Trimble, having the legal title to the land, could enter, and thus secure the rents and profits.

The record does not show tbe name of the presiding judge. This action was brought by the appellees, suing as partners, to recover the sum of four hundred dollars, alleged to be due from the defendant by account, for professional services rendered by the plaintiffs, as attorneys-at-law, during the years 1872-75; and was commenced on the 5th March, 1875.