Volume 56 — Alabama Reports

W. B. Wood. This action was brought by William M. Wood, as county superintendent of education of Morgan county, against William A. Morrow, late county treasurer of said county, and Samuel M. Morrow and William Morrow, sureties on his official bond as sucb treasurer; and was commenced on the 29th March, 1876.

<p> BUI in Equity for Account aud Settlement of Partnership in Planting. </p> <p>1. Receiver’s compensation; who chargeable with. — When it becomes necessary for a court of equity to take charge of property, through a receiver, in order to preserve it from waste, the property becomes chargeable with the expenses thus incurred, including the receiver’s compensation; and the party who, under the final decree of the court, becomes entitled to the property, or its proceeds, Lakes it cum onere, although it may not be sufficient to pay his entire debt or claim.</p> <p>2. Landlord and tenant; cost of saving and gathering crop by receiver. — As between landlord and tenant, the latter is chargeable with the cost and expense of saving and gathering the crop, through the instrumentality of a receiver; and if tlie landlord receives the entire crop, which is mainly saved through the services of the receiver, an d is compelled to pay the compensation allowed to the receiver, he is entitled to a credit for the amount so paid, as against the tenant, whose duty it was to save and gather the crop.</p>

Heard before the Hon. A. W. Hillard. The bill in this case was filed on the 10th December, 1872, by Mrs. Susan J. Pool, against the appellants (a mercantile partnership), the sheriff of the county, and the personal representative of the complainant’s deceased husband, B>.

Tried before tbe Hon. Geo. H. Craig. This action was brought by Peter T. Hurt, against C. J. Clarke; was commenced on the 27th October, 1874, and was founded on an account for goods, wares, and merchandize, sold and delivered to the defendant during the years 1871, 1872, and 1873, by the firm of Hurt, Corbin & Atkins, of which the plaintiff was a member, amounting to $540.66.

Heard before the Hon. A. ~W. Hillard. The facts of this case were thus stated in thé opinion delivered. by Manning, J.: “ This is a preferred case under the statute, being an appeal from a decree overruling a demurrer to a bill in chancery.

In the matter of the estate of Martin Van Swearingen, deceased, on the petitions of L. M. Davis and Eli Swearingen, respectively, for the grant of letters of administration. The decedent died, intestate, in 1870; and no letters of administration were ever granted on his estate prior to the applications of the parties in this case.

Heard before tbe Hon. H. C. Speake. Tbe bill in this case was filed on tbe 24th May, 1860, by Dabney G. Bay, against D. C. Oates, and… Held: that the complainant was not entitled to relief; that he had an adequate remedy at law, to set aside the sales under execution, by motion to the court from which the process issued; and that he was not entitled to redeem, under the amended bill, because it was not filed within two years after the sale, and no excuse was shown for the…

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

Tried before tbe Hon. Luther R. Smith. Tbis was a summary proceeding, by notice and motion, at tbe suit of Jbbn P. Rice, “plaintiff, who sues by tbe name and description of administrator of Hixey Pippen, deceased,” against Mrs. Georgia H. Wright, tbe wife of John Y. Wrigbt, asking a sale of certain lands, wbicb were particularly described, and alleged to be held by Mrs. Wrigbt as her statutory separate estate, for tbe satisfaction of a judgment wbicb tbe plaintiff bad…

Tbe record does not show the name of tbe presiding judge. In this case, the sheriff of the county made application to the court, by motion entered on tbe docket, at tbe April term, 1876, for instructions as to tbe appropriation of moneys in bis bands, arising from the sale of lands belonging to Mrs. Maria S. Poe, under executions against her.

In the matter of the estate of Bobert C. David, deceased, on the petition of his widow, Mrs. Sallie C. David, for the appointment of commissioners to set apart and allot the exempt property to which she might be entitled. When the commissioners made their report to the court, the administrator filed several objections to it, and moved to set it aside; but the court overruled his objections, and refused his motion.

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

The record does not show tbe name of the presiding judge. This action was brought by John H. Parrish, against Yolney Boardman and Margaret E. Boardman; was commenced on tbe lOtb March, 1873, and was founded on a promissory note, executed by the defendants, and payable to the plaintiff.

Tried, before the Hon. W. B. Wood. This action was brought by Thomas Masterson, against OrsonI), Gibson; was commenced on the 31st January, 1871, and was founded on a judgment for $643.42, besides damages and costs, which was alleged to have been rendered by said court, at its March term, 1862, in favor of B. E. Milam, against said Gibson and one Warren (not sued in this action), and to be tbe property of the plaintiff.

Heard before the Hon. A. W. Dillard. The bill in this case was filed on the 12th March, 1872, by Mrs. Henrietta C. Alexander, the widow of Abraham F. Alexander, deceased, against Christopher H. Taylor and others; and sought an allotment of dower in the lands of which the said A. F. Alexander died seized and possessed, and statutory quarantine, or rents and profits up to the allotment of dower.

Tried before tbe Hon. James S. Clark. This action was brought by William Simpson, as the surviying partner of the late firm of Tate, Simpson & Co., against Lauderdale county as a corporation; was commenced on the 7th August, 1869, and was founded on two promissory notes, or instruments in writing, in the following words: “$500. Florence, Ala., May 12, 1862.

Heard before tbe Hon. N. S. Graham. Tbe bill in tbis case was filed on tbe 19tb October, 1875, by Orville Phillips and others, residents of New York, Ohio, and Kansas, and distributees of tbe estate of James Wright, deceased, against W. H. Chambers, as tbe administrator of said decedent, William H. Wright, James Wright, and James W. Phillips; the three persons last named being also distributees of said estate.

Tried before tbe Hon. James Q. Smith. Tbis action was brought by A. K. McWilliams against W. L. Rodgers, to recover the possession of a tract of land near Prattville, containing about twenty-four acres, together with damages for its detention; and was commenced on the 13th March, 1874.

Heard before the Hon. H. C. Speake. The original bill in tbis case was filed on tbe 31st December, 1866, by John W. Bather, against Isaac E. Young, John D. Inman, and Benjamin F. Little; and sought to enforce a vendor’s lien on a certain tract of land, ■which had been sold by the complainant, as the administrator of his deceased father, William B. Bather* under a decree of the Probate Court of said county, on the 8th day of February, 1858, and purchased at the sale by said…

Heard before the Hon. B. B. McCraw. The bill in this case was filed on the 3d June, 1873, by Matilda G. Todd, a femme sole, against the personal representative and surviving children and heirs of Marcus A. Flournoy, deceased, who were also devisees under his will, and against Jesse B. Todd and Thomas L. Penn; and sought, principally, to compel a conveyance to the complainant of the legal title to a tract of land in Chambers county, which she had bought from said Jesse B.…

Heard before the Hon. B. S. Watkins. The bill in this case was filed on the 20th November, 1871, by Nelson G. Hill and others, on behalf of themselves and such other creditors of George G. Armistead, deceased, as might come in and make themselves parties; and sought, principally, to set aside a sale of certain lands under execution, as hereinafter more particularly stated, and to remove the settlement of said Armistead’s estate into the said Chancery Court.

Tried before the Hon. H. T. Toulmin. This action was brought by Justina Davis, against William H. Minge, to recover a city lot in Mobile; and was commenced on the 3d June, 1874. The cause was tried on issue joined on the plea of not guilty.

Heard before the Hon. N. S. Graham. The bill in this case was filed on the 3d November, 1873, by William Hightower against Samuel Rigsby, and sought to enforce a vendor’s lien on land for the unpaid purchase-money.

Tried before the Hon. L. B. Strange. The petition by which this proceeding was commenced was in the name of the State, on the relation of Francis M. Dunbar; was verified by the oath of the relator; was addressed to the judge of the Circuit Court, and dated the 18th January, 1872.

Tried before tbe Hon. James E. Cobb. The appellee in this case, James J. Whittle, having commenced an action at law, by summons and complaint, which are nowhere set out in tbe record, against Rboda Renfroe, sued out a garnishment in aid of said action, and bad it served on tbe 24th June, 1875, on Elisha Calboun, tbe appellant, as the debtor of said Rhoda Renfroe.

Tried before the Hon. James E. Cobb. This action was brought by Jasper D. Liles against Arthur J. Hand, and was commenced by a statutory attachment against the defendant’s crop, sued out on the 29th September, 1875, and levied on two bales of cotton raised by the defendant, during the year 1875, on lands rented to him by the plaintiff.

Heard before tbe Hon. N. S. Graham. Tbe original bill in this case was filed on tbe 25tb March, 1873, by John F. Powledge, against Michael T. Pitts; and sought to enforce a vendor’s lien for tbe unpaid purchase-money of land.

Heard before the Hon. W. C. McIver, an attorney and solicitor of the court, acting as special chancellor, by agreement and selection of the parties, on account of the incompetency of the Hon. N. S. Graham.

Heard before tbe Hon. B. B. MoCbaw. Tbe original bill in this case was filed on the 23d February, 1871, by Laura A. Brown, against Mrs. Kate Lamar and Albert B. Lamar, ber busband, individually, and as trustee for bis said wife; and sought to foreclose a mortgage on a tract of land, executed by tbe defendants to secure tbe payment of a promissory note, which was given by tbem in part payment of tbe purebase-money for tbe land, and was in tbe following words: “ Oolumbus,…

Heard before the Hon. B. B. MoGraw. The bill in this case was filed on the 30th March, 1872, by J. J. Moore, against O. D. Worthy and his wife, Mrs. Sarah F. Worthy; and sought to enforce a vendor’s lien on land for the unpaid balance of the purchase-money. On final hearing, on pleadings and proof, the chancellor dismissed the bill; and his decree is now assigned as error.

Tried before tbe Hon. Geo. ~W. Gunn, an attorney of tbe court, selected by tbe parties on account of the incompetency of tbe presiding judge. This action was brought by Thomas B. Thompson, against Thomas J. Calhoun, to recover damages for tbe conversion of a borse ; and was commenced on tbe 11th August, 1878.

Heard before tbe Hon. B. B. McCraw. The bill in this case was filed on tbe 25th December, 1873, by Elizabeth Wilkins and William J. Smith, as the administrators de bonis non, with the will annexed, of John L. Wilkins, deceased, against the executors of the last will and testament of George S. Turner, deceased; and sought to hold the estate of said Turner liable for a devastavit, alleged to have been committed by him while acting, jointly witb tbe said Elizabeth Wilkins, as…

Heard before the Hon. Bl B. MoCraw. The bill in this case was filed on the 2d June, 1873, by Michael W. Harvey, against John T. Dunklin individually, and as administrator of the estate of Henry C.… Held: and which, as he said, was the only lien or incumbrance on the land. Reese confirmed these statements, and agreed to transfer his interest in the land to Harvey, on repayment of the money which he had advanced to Crowell, with interest.

Tried before the Hon. John Henderson. This action was brought by Zimri Shinbone, against Randolph county, as a corporation; was commenced on the 31st January, 1876, and was founded on three several coupons, attached to bonds issued by the county, which were in the following words : “State of Alabama, County of Randolph.

Appeal frpm the City Court of Opelika. Tried before the Hon. John M. Chilton. This action was brought by the appellees, suing as partners, against John E. Lewis; was commenced on the 10th January, 1874, and was founded on the defendant’s promissory note, which was in these words: “$100.62. Opelika, Ala., June 15, 1873.

Tried before the Hon. L. B. Strange. This action was brought by George R. Taylor, against Erank Wray, and was commenced before a justice of the peace. The case having been taken by appeal to the Circuit Court, the defendant there pleaded not guilty, and that he and those under whom he held had been in quiet possession of the premises for more than three years.

Tried before the Hon. W. B. Wood. This action was brought by William G. Lewis, against Thomas C. Irion, Philip I. Irion, and Elijah G. Chandler; was commenced on the 10th February, 1874; and was founded on tbe official bond of tbe said Thomas C. Irion as a justice of the peace, which was dated the 7th November, 1871, and ¡ was conditioned that tbe said Thomas C. “shall faithfully discharge the duties of said office, during the time he continues therein, or discharges any of…

Heard before the Hon. N. S. Graham. The bill in this case was filed on the 17th August, 1874, by David G. Allen, against Warrenton Costley and George P. Walker, to enjoin a judgment at law which the said Costley had obtained in the Circuit Court of said county, on the 17th April, 1874, against the said George P. Walker, and an execution issued on it against said David G. Allen as Walker’s surety on the replevy bond given in tbat case.

Tried before the Hon. John M. Chilton. This action was brought by T. L. Scott, against J. C. Sledge and S. J. Sledge; was commenced on the 12th April, 1873; and was founded on a promissory note for $500, signed by said defendants and one J. J. Smith (as to whom the action was discontinued), dated the 16th November, 1872, and payable to the plaintiff, or bearer, on the 15th March, 1873; which was given for the purchase-money of a carriage and pair of horses, sold by plaintiff…

Heard before the Hou. B. B. McCraw. The bill in this case was filed on the 27th March, 1874, by Reuben C. Shorter and Virginia A. Oliver, only surviving heirs at law of Eli S. Shorter (or Eli B. Shorter, as tbe name is copied indifferently in tbe transcript), deceased, against the heirs of Elijah Corley, deceased, John J. Smith, B. E. Smith, R. G. Young, McKinney Thomas, and James M. Phillips ; and sought to divest the legal title to certain lands, situated in Tallapoosa…

Heard before tbe Hon. Charles Turner. Tbe bill in tbis case was filed on tbe 21st November, 1874, by Evan Presley, since deceased (tbe suit being revived in tbe name of bis personal representative), against William McLean and bis wife, Mary McLean; and sought tbe foreclosure of a mortgage on a tract of land, an account of tbe mortgage debt, taxes paid, &c., tbe appointment of a receiver to take charge of tbe land and collect tbe rents and profits, and for general relief.

Tried before the Hon. L. B. Strange. This action was brought by Henry J. Askey, against John W. Huddleston and Charles Boyd, and was commenced on the 26th August, 1868. The complaint contained a count on an account stated, and smother for the price of goods sold and delivered. The defendants pleaded, “ in short by consent,” the general issue and set-off; and issue was joined on these pleas.

Heard before the Hon. H. Ausplll. The bill in this case was filed on the 1st November, 1875, by James Martin, against Michael Mohr; and sought to enjoin a sale of certain personal property under a power contained in a mortgage, and to establish an equitable set-off against the mortgage debt, under the facts stated • in the opinion of the court.

Tried before the Hon. James Q. Smith:. This action was brought by Martba E. Staggers, against Asa Washington, and was commenced by attachment, sued out before a justice of tbe peace, on tbe 30th October, 1876.

Heard before tbe Hon. H. 0. Speake. Tbe original bill in tbis case was filed on tbe 6th February, 1872, by Mrs. Elizabeth R. Simpson, suing by her husband, James H. Simpson, as her next friend, against John W. McAllister, surviving partner of the late firm of Simpson, McAllister & Co.; and sought to establish and declare, in the complainant’s favor, a trust in a certain tract of land, of which she was in possession, and to vacate and set aside, as against her, a decree in…

Tried before the Hon. James Q. Smith. This action was brought by Mrs. Bosalie Strobach, to recover the possession of a tract of land near the city of Montgomery, and was commenced on the 5th May, 1873.

Tried before the Hon. James E. Cobb. This action was brought by T. P. Hudmon & Brother, as partners, against Joseph D. Trammell, as the acceptor of a bill of exchange for $119, drawn by J. S. Byington, payable to his own order, and by him indorsed to the plaintiffs, dated the 28th May, 1873, and payable six months after date.

Heard before tbe Hon. B. B. MoCraw. The bill in this case was filed June 2d, 1873, by John W. Kellam, a minor, who sued by his next friend, against John H. Bicharás, Evan G. Bicharás, James M. Bicharás, Thomas B. Trammell, and Mrs. Nancy M. Trammell, his wife; and sought to vacate and set aside a sale of certain lands, in which the complainant claimed a one-third interest, and which had been sold, under a decree of tbe Probate Court of said county, for partition among the…

Heard before the Hon. N. S. Graham. The bill in this case was filed on the 1st January, 1874, by Mrs. Martha A. Bobinson, the widow of Jesse B. Bobinson, deceased, against David S. Moon, for the purpose of establishing her right of dower in a certain tract of land, of which the defendant was in possession; praying an assignment of her dower, and an account of the rents and profits after her husband’s death.

This action was brought by Henry G. Evans, against the Memphis & Charleston Kailroad Company and the Southern Kailway Security Company (the latter corporation being the lessee of said railroad), to recover damages for injuries sustained by plaintiff on account of defendants’ refusal, through their agent, to allow him to travel on one of their trains, and compelling him to leave it, because he had not procured a ticket before entering the cars; and was commenced on the 15th…

Tried before the Hon. Louis Wyeth. This action was brought by Thomas J. McClellan, against Jefferson Humphrey, tenant in possession, to recover a certain tract of land in said county, containing about three hundred and twenty acres; and was commenced on tbe 26tb September, 1873.

Heard before the Hon. N. S. Graham. The bill in tbis case was filed on the 17tb January, 1874, by Young Charles Yarner and others, only living children of William Yarner and Hasletine J. Yarner, bis… Held: on the pleadings and evidence, that the suit was an attempt to revive an old trust which had been already settled by judicial determination in Georgia, while all the parties resided there. He therefore dismissed the bill, and his decree is now assigned as error. 1.

Heard before the Hon. B. B. McCraw. The bill in this case was filed on the 13th March, 1871, by the wife and children of Madison Perry, against John 0.

Tried before the Hon. Luther R. Smith. This action AVas brought by Stephen Scbuessler, as the administrator de bonis non of tíre estate of Joseph Ritter, deceased, against Jason G. Jone's, as one of tbe sureties on tbe official bond of Thomas J. Orme as the general administrator of Montgomery county; and was commenced on the 19th October, 1872.

Tried, before tbe Hon. W. B. Wood. This action was brought by Gulielmus Wood, who sued for the use of Samuel Matthews and others, against Joshua P. Coman and William H. Walker; was commenced on the 17th April, 1872, and was founded on a penal bond, which was in the following words: “ Know all men by these presents, that we, Hugh McCrea & Co. of Nashville, Tennessee, James P. Coman, and William H. Walker, are held and firmly bound unto Gulielmus Wood, in the sum of twelve…

Tried before tbe Hoñ. John A. Minnis. This action was brought by Jesse E. Matthews, against A. T. Matthews, as the administrator of the estate of Charles J. Matthews, deceased, and was revived against W. T. Hatchett, the appellant, as administrator de bonis non.

Heard before the Hon. H. C. Speake. The bill in this case was filed on the 30th March, 1875, by William J. Haralson, against Alfred Collins, as the executor of the last will and testament of Charles D. George, deceased; and sought to enjoin and restrain the register in chancery from re-selling, under an order of said court, certain lands which he had sold, under a former order, on the first Monday in September, 1870, and to obtain a confirmation of tbe original sale.

Heard before the Hon. Charles Turner. The bill in this case was filed on the 27th March, 1875, by the appellees, who were attorneys at law, and sued as partners, against Patrick McAnally, liis wife, > 'atherine McAnally, and their infant son, Richard H. McAnally; and sought to reach and subject to the satisfaction of a debt, which the complainants held against said Patrick McAnally, certain town lots in Birmingham, which he had bought, and conveyed to his wife 'and child.

Heard before tbe Hon. Charles Turner. Tbe bill in tbis case was filed on the 20th November, 1876, by Mrs. Catherine Cabalan, wife of Michael Cabalan, against Monroe, Smaltz & Co., a mercantile partnership, her said husband, and others; and sought to enjoin the execution of a judgment in ejectment, which the said Monroe, Smaltz & Co. had obtained against said Micbael Cabalan, for a certain tract of land which the complainant claimed, on the ground that it was bought and paid…

Tried before the Hon. James Q. Smith. The appellant, McCormick Pruitt, commenced an action by summons and complaint, on the 2d May, 1873, against William H. McRae, who was the tax-assessor of said county; and sued out a garnishment in aid of the action, which was served on Thomas W. Armstrong, the tax-collector, seeking to reach and condemn the compensation due to said McRae for assessments already made, which the garnishee had collected, or might afterwards collect.

Heard before the Hon. H. Austill. The original hill in this case was filed on the 5th March, 1872, by Mrs. Anna P. Metcalf, the wife of H. B. Metcalf, who sued by her next friend, against Mrs. Caroline A. Lo-max, as the executrix of the last will and testament of Mrs. Elizabeth Lowther, deceased; and sought an account and settlement of Mrs. Lowther’s guardianship of the complainant, under letters granted in Georgia, as hereinafter more particularly stated.

<p> Bill in Equity to enforce, Vendor’s Lien on Lands sold by Administrator under Probate Decree. </p> <p>1. Sale of decedent's lands, under probate decree, for payment of debts} vendor’s lien. — When lands are sold by an administrator, under a decree of the Probate Court, for the payment of debts (Rev. Code, §§ 2079-96), the purchaser has no right to a conveyance, until he has paid the whole of the purchase^money; and although the administrator falsely reports that the purchaser has made the required cash payment, and has otherwise complied with the terms of sale, and the sale is confirmed by the court, and a conveyance is executed to the purchaser by the administrator, under the order of the court, before the credit payment has become due, the title of the heirs is not divested, and the land remains bound for the payment of the purchase-money.</p> <p>2. Same; when purchaser is chargeable with notice. — Sub-purchasers of land, sold under a probate decree for the payment of debts, succeed only to the rights of their vendor, the original purchaser, and can not claim the protection afforded to purchasers for valuable consideration without notice; although they bought in ignorance of the fact that the purchase-money had not been paid, and although a conveyance had been executed to their vendor, under the order of the court, before the credit payment had become due.</p> <p>3. Paiiies to bill to enforce véndenos lien, — When a bill is filed by an administrator de bonis non, seeking to subject to sale, in satisfaction of the unpaid purchase-money, lands sold by his predecessor, under a probate decree, for the payment of debts, the heirs at law are necessary parties, in order that the court may convey a good title to the purchaser under its decree,</p> <p>4. Sale of lands under decree enforcing vendor’s lien, — Where the purchaser of lands, not having paid the purchase-money, sells and conveys different portions of it, at different times, to several persons, the portion remaining unsold must be first subjected to sale for the unpaid purchase-money, and the other portions in the inverse order of their alienation, the last being first sold.</p>

Tried before tbe Hon. W. J. Haralson. This action was brought by Mrs. Jane Bridges against Jobn H. McClendon, and was founded on the defendant’s promissory note for $300, wbicb was in these words ; “By the 1st January, 1871,1 promise to pay Charles F. Woods, trustee, &c., or bearer, three hundred dollars, part consideration for eighty acres of land this day purchased of Mm and others, this March 6th, 1868 which was assigned to the plaintiff by indorsement.

Tried before tbe Hon. W. B. Wood. This action was brought by John T. Phinizy, against Tbos.

Ajppeal from the Chancery Court of Butler. Heard before the Hon. H. Austell.

<p>Appeal from the Circuit Court of Cleburne.</p> <p>Tried before the Hon. ¥i. L. Whitlock.</p>

■Tried before the Hon. W. B. Wood. This action was brought by John H. Hansell and others, children and heirs at law of John H. Hansell, deceased, against David C. Goodlett, to recover a tract of land containing about eighteen acres, situated near the town of Moulton in said county, together with damages for its detention.

Heard before the Pión. H. Austill. The bill in this case was filed on the 9th August, 1873, by W. T. Hatchett, as the administrator de bonis non, with the will… Held: on pleadings and proof, that Mrs. Alford took an absolute estate in all tbe property under her husband’s will, and that her administrator was entitled to the fund in controversy. The complainant appeals from this decree, and here assigns it as error. The ease falls within the express words of the statute (Hey.

Heard before the Hon. Adam C. Felder. The bill in this case was filed on the 1st March, 1871, by Stephen Schuessler, as the administrator of the estate of Joseph Ritter, deceased,… Held: that, as to the lands which had been conveyed to the several defendants who were entitled to be considered purchasers for valuable consideration without notice, the complainant was not entitled to relief, but was entitled to relief as against Mrs. M. A. Floyd and the lands held by her.

<p>Appeal from tbe Chancery Court of Madison.</p> <p>Heard before the Hon. H. C. Speake.</p>

Heard before the Hon. H. C. Speake. The original bill in this case was filed on the 26th April, 1873, by the administrators of the estate of Hugh L. Parks, deceased, against Samuel W. Erazier, and sought to foreclose a ’mortgage on land, which was executed by the defendant to said Hugh L. Parks.

Tried before tbe Hon. James Q. Smith. Tbis action was brought by tbe appellees, suing as partners, against tbe South & North Alabama Railroad Company, as a common carrier, to recover damages on account of injuries to a mule, wbicb tbe plaintiffs bad transported on tbe railroad Rom Nashville, Tennessee, to Montgomery, Alabama, and which, as they alleged in their complaint, was injured while in the defendant’s possession through negligence and want of care.

Heard before the Hon. Adam 0. Felder. The original bill in this case was filed on the 13th April, 1872, by Sydney McLeod, against Hiram Thewatt, and sought to enforce a vendor’s lien on land for tbe unpaid balance of the purchase-money.

<p> Statutory Action for Recovery of Personal Property in Specie ; Statutory Certiorari from, Justice’s Court. </p> <p>1. Declarations not part of res gestas. — Declarations by the wife ot her intention to purchase a mule with money then paid to her, and her husband’s subsequent declarations that he had bought the mule in controversy for her, are not competent evidence for her, as a part of the res gestas, in a suit for the mule between her and one claiming under a mortgage from her husband.</p> <p>2. General objection to evidence partly legal. — A general objection to a mass of evidence, some of which is legal, may be overruled entirely.</p> <p>8. Declarations explanatonj of possession. — Declarations of the wife, asserting her ownership of a mule, which a person was seizing under a mortgage from her husband, are admissible evidence for her, on the principle of res gestas, in a subsequent action against the mortgagee.</p> <p>i. Wife’s earnings; gift by husband to wife. — Under our statutes, as at common law, the wife’s earnings belong to the husband, and he cannot give them to her, to the prejudice of his existing creditors ; but, as against subsequent creditors, the gift would be valid, unless tainted with a fraudulent intent.</p> <p>5. Abstract charge. — When a charge is asked and refused, this court will presume that it was refused because it was abstract, unless the record affirmatively shows that there was some evidence in support of each fact hypothetically stated in it.</p> <p>6. Impeaching witness. — A willfully false statement, made by a witness out of court, does not raise any presumption that his testimony is altogether false.</p> <p>7. Sale or moitgage of personal property by person in possession. — Having possession of personal property, by permission of the owner, does not confer the power to sell or mortgage it, even in favor of 0 Iona fide purchaser for valuable consideration without notice.</p> <p>8. Plea to jurisdiction of justice of the peace; waiver of. — In an action for the recovery of personal property m specie, commenced in a justice's court, and carried by appeal or statutory certiorari to the Circuit Court, where cases so brought up are required to be tried de novo, ‘'without regard to any defect in the summons or other proceedings before the justice” (Rev. Code, § 2772), no objection can be raised to the jurisdiction of the justice, on account of the value of the property exceeding the amount of which he has jurisdiction, when that question was not raised before him. (Overruling Pearce v. Pope, 42 Ala. 319.)</p> <p>9. Same. —It seems that, if a justice of th6 peace renders a judgment in a matter of which he has not jurisdiction, or for an amount beyond his jurisdiction, it may be vacated and quashed in the Circuit Court, on certiorari as at common law, issued from that court, if the defect appears on tho face of the papers sent up by the justice, although the objection was not raised before him.</p>

James E. Cobb. This action was brought by Charles Brooks, against James Harris, to recover the sum of $235 alleged to have been won from the plaintiff by the defendant, within six months before the commencement of the action; and was commenced by attachment, sued out on the 23d February, 1870. The complaint contained a special count on the statute (Revised Code, § 1874), and the common count for money had and received.

Tried before the Hon. Wm. L. Whitlock. This was a trial of the right of property in one hundred and twenty-six bushels of wheat, on which an attachment had been ievied at the 'suit of the appellees, as executors of the last will and testament of Thomas Treadway, deceased, asserting a landlord’s lien for rent as against Charles Smith, the defendant in attachment; and to which a claim was interposed, under the statute, by the appellant, Larkin B. Treadway.

Tried before the Hon. John D. Cunningham. Tbis action was brought by A. A. Wilson, against Charles W. Buckley, as one of the sureties on tbe official bond, of M. D. Brainard, as clerk of tbe Circuit Court of said county; and was commenced on tbe 16th September, 1873. The clerk’s bond was dated tbe 18tb July, 1868, and was conditioned for tbe faithful performance of bis official duties, as prescribed by tbe statute.

<p>Appeal from the Chancery Court of Chambers.</p> <p>Heard before the Hon. B. B. MoGraw.</p>

Heard before tbe Hon. Charles Turner. The bill iu this case was filed on tbe 20th July, 1874, by Mrs. Ellen E. Morgan, tbe widow of Isaac C. Morgan, deceased, against John A. Wood and Stephen H.… Held: that the complainant was entitled to the annual interest on one-third of the value of the lands at the date of the sale under execution, to be computed from the death of the husband ; and he ordered a reference to the register, to ascertain and report this value.

Tried before the Hon. James Q. Smith. This action was brought by Benjamin Fitzpatrick, against Betsy Elmore, to recover a horse, together with damages for its detention; and was commenced on the 12th June, 1876. The record does not show what pleas were filed; but there was a trial by jury, and a verdict and judgment for the plaintiff.

Heard before the Hon. B. B. McCraw. The bill in this case was filed on the 17th May, 1873, by John A. Holmes, as the administrator of the estate of Jesse Loyal, deceased, against Terry Collins and others, and sought to review and correct mistakes in a certain decree rendered by said court, in May, 1856, in favor of said Jesse Loyal, to enforce a vendor’s lien for the unpaid purchase-money of land; also, to set aside a sale of lands which had been made under said decree, to…

Tried before tbe Hon. P. O. Harper. This action was brought by tbe administrator of tbe estate of Joseph M. Parmer, deceased, against John C. Caldwell, to recover an undivided moiety of a city lot in Greenville, on which a brick store-house was erected; and was commenced on the 13th March', 1869. The defendant having died pending the suit, the action was revived against his executors and heirs at law, who are the appellants in this court.

Tried before tbe Hon. Louis Wyeth. Tbis action was brought by Bichard Brown, against tbe Louisville & Nashville Bailroad Company, to recover the value of three hundred and forty cross-ties, cut and furnished by tbe plaintiff, and used in the construction of the South and North Alabama Bailroad; and was commenced on the 19th March, 1875. The complaint contained only the common counts.

Tried before the Hon. James Q. Smith. This action was brought by Michael K. Broadhead, against Higdon R. Atcheson, to recover a tract of land in Baker (now Chilton) county, together with damages for its detention; and was commenced on the 5th July, 1870. The plaintiff having died, the action was revived in the name of John W. Broadhead, as his administrator; and a trial was had on issue joined on the plea of not guilty.

Tried before the Hon. Wi. L. Whitlock. This action was brought by Mrs. Fanny Ann Luke, as “widow and next of kin” of William M. Luke, deceased, to recover from the county tbe statutory penalty of five thousand dollars for tbe murder of ber said husband, who was alleged to have been killed by unknown persons in disguise.

Tried before tbe Hon. James Q. Smith. This action was brought by J. M. & J. A. Smith & Go., suing as partners,' against William T. Rice, to recover “ six bales of cotton, six hundred bushels of corn, one hundred bushels of peas, twenty-five bushels of potatoes, one lot of hay, and ten head of cattle,” with damages for their detention ; and was commenced on the 7th December, 1874.

Heard before the Hon. H. C. Speake. The bill in this ease was filed by Mrs. Susan E. Eorsey, a lunatic, who sued by her guardian, E. A. O’Neal, Jr., against Morris K. Taylor, John M. Humphrey, James A. Boyd, and Martha D. Boyd, his wife; and sought an account of an annuity in favor of the complainant, and to have it declared and enforced as a charge on certain lands, which said Boyd and wife had sold and conveyed to said Humphrey, who sold and conveyed to said Taylor.

Tried before tbe Hon. W. L. Whitlock. Tbis action was brought by G. E. Coats, against T. 0. Brown, and was commenced by a statutory attachment for advances, alleged to have been made by tbe plaintiff, as landlord for the defendant, to enable him to make a crop on land rented to him by the plaintiff during the year 1875.

Tried before the Hon. Wk. L. Whitlock. This action was brought by James H. Bell, William Dothard, and Benjamin J. Sitton, against Levi P. Denson and J ames Denson, to recover a certain tract of land in said county, which was described as “ the west half of section six (6), township seventeen (17), range eleven (11),” together with damages for its detention. The record does not show at what time it was commenced.

Appear from the Chancery Court of Etowah. Heard before tbe Hon. B. B. McCraw.

Tried before tbe Hon. James Q. Smith. This action was brought by Mrs. Kate M. Carson, to recover the possession of a tract of land in said county, aud was commenced on the 15th April, 1872.

This was an application by William M. Holding and others, by petition addressed to this court, for a writ of mandamus to Hon. H. C. Speake, the chancellor of the Northern Chancery Division, commanding him to vacate and set aside a certain decree, rendered by him on the 8th December, 1875, in a cause pending in the Chancery Court of Madison, wherein Milton Humes, as the administrator of the- estate of George Steele, deceased, was plaintiff, and these petitioners, with others,…

Heard, before tbe Hon. H. Austill, Tbe bill in tbis cause was filed on tbe 20th March, 1876, by W. T. Hatchett, as tbe administrator de bonis non of the estate of Samuel H. Cochran, deceased, against William O. Baldwin, Willis E. Calloway, and Jason G. Jones; and alleged the following facts : On the 28th April, 1859, said Cochran sold and conveyed to said Willis E. Calloway a large plantation in Montgomery county, together with about thirty-five slaves, and all the mules and…

Heard before the Hon. Charles Turner. The bill in this case was filed on the 13th October, 1874, by the Mobile Life Insurance Company, against Mrs. Cynthia Ann McDonald and others; and sought an account and foreclosure of several mortgages on town lots in Birmingham, executed by Mrs. McDonald.

Heard before tbe Hon. B. B. McCraw. Tbe bill in this case was filed on tbe 2d March, 1874, .by James'F. Waddell, against Samuel D. Strong and Aletba F. Strong, his wife; and sought to foreclose a mortgage on a certain tract of land, which the complainant had sold and conveyed, on the date of the mortgage, to Mrs. Strong, taking the note of herself and her husband for the purchase-money, and a mortgage on the land to secure its payment.

Heard before the Hon. H. C. Speake. The bill in this case was filed on the 29th of May, 1875, by John E. W. Poster, Turner S. Foster, and Anne Eliza Wilson, grandchildren of John S. Wilson, deceased, against the children and heirs at law of James L. Holland, deceased, who was a surety on the official bond of one John W. McAllister, as executor of the last will and testament of said John S. Wilson; and sought to charge the property which the defendants had received from the…

Tried before the Hon. John K. Henry. Tbis action was brought by Joseph J. Stallworth, against William A. Riley, to recover the sum of $525, with interest, alleged to have been paid by the plaintiff, on the 30th September, 1873, for tbe defendant, and on his implied request; and was commenced on the 14th August, 1874.

Heard before tbe Hon. N. S. Graham. The original bill in tbis'case was filed on thé 11th June, 1874, by Andrew B. Griffin, against tbe heirs at law and distributees of tbe estate of J ames Pringle, deceased, who died in Bussell county (in that portion now embraced in Lee county), in 1854; and whose last will and testament, which was there duly proved and admitted to probate, was in these words: “As to such worldly estate as it hath pleased God to bless me with in this life,…

Tried before the Hon. John H. Cunningham.’ This action was brought by the appellants, suing as partners, against W. B. Jones, as a member of the late firm of Hannon, Brown & Jones; and was commenced on the 18th June, 1870. The complaint contained only the common count for goods sold and delivered by plaintiffs to said Han-non, Brown & Jones during the year 1868, and the common count for money paid by plaintiffs for said Hannon, Brown & Jones during said year, 1868.

Tried before tbe Hon. John Henderson. This action was brought by C. C. Enloe, the appellant, against Frederick Reike, county treasurer of said county, and tbe sureties on his official bond as sucb treasurer; and was commenced on the 6th February, 1875.

Tried before the Hon. John A. Muraras. This action was brought by Allen N. Lightfoot, against “ James J. Colt, W. B. Shapard, B. Boyle, W. H. Kelly, Hugh Carlisle, and Benjamin E. Wells, partners in trade, associated and doing business under the firm name and style of the Alabama and Georgia Company; ” and was, commenced on the 1st April, 1874. The complaint contained only the common money counts.

Tried, before the Hon. Louis Wteth. This action was brought by Daniel Jones, against the appellant, to recover damages for the loss of an ox, alleged to have been. killed by one of the defendant’s locomotives, through the negligence of the engineer in charge of the train; and was commenced before a justice of the peace, Qn the 13th April, 1875.

Tried, before the Hon. James E. Cobb. This action was brought by William Doughtie, against John W. Howard and his wife, Virginia Howard; was commenced on the 12th October, 1872, and sought to charge Mrs. Howard’s statutory separate estate with the payment of an account amounting to $143 90.

Tried before the Hon. John A. Minnis. This action was brought by David Lewis, against the appellant, to recover six bales of cotton, together with damages for their detention; and was commenced on the 19th January, 1873. “On the trial,” as the bill of exceptions states, “the defendant’s plea being the general issue, the proof showed that the property sued for belonged to the plaintiff, unless the mortgage under which the defendant claimed to hold it was valid; which mortgage…

Tried, before the Hon. James Q. Smith. This action was brought by S. Schuessler & Co., suing in their partnership name only, against B. Wilson and his wife, Ellen Wilson; and was commenced on the 31st January, 1876, in a justice’s court.

<p>Appeal from the Circuit Court of Montgomery.</p> <p>Tried before the Hon. James Q. Smith.</p> <p>This action was brought by Daniel Hood and Emeline Felder, claiming as the children of Daniel North, deceased, against Margaret Cantelou, to recover the possession of a small lot near the city of Montgomery; and was commenced on the 21st October, 1875. “On the trial,” as the bill of exceptions states, “ the plaintiffs proved that Daniel North was, at the time of his death, which occurred in 1870, the owner of the premises sued for; that said Daniel, about thirty years ago, being then a slave, married a woman, who was also a slave, according to the mode of intermarriage usual among slaves at that time in this State, and lived with her as husband and wife, in a state of slavery, from that time until a few years before the emancipation of slaves; that they ceased to live together as husband and wife a few years before the emancipation of slaves; that the plaintiffs are the children of said Daniel and said woman, born in a state of slavery, while their parents were so living together as husband and wife; and that said Daniel recognized them as his children after emancipation. The defendant then proved, that she was the sister of said DanielNorth; that said Daniel, after, abandoning the plaintiffs’ mother, took to himself another wife while he was yet a slave, and continued to live with her as husband and wife until his death in 1870, and always acknowledged and treated her as his wife; and that this woman, after his death, remained in the possession of. said premises until her death. This was all the evidence in the case; and the court thereupon charged the jury as follows : “ If you find, from the evidence, that Daniel North, now deceased, was the owner of the lot of land sued for, residing on it, and exercising ownership over it at the time of his death; and that said Daniel North and Phoebe Felder, before emancipation, were slaves, and were married, and lived together as man and wife; and that these plaintiffs, Daniel Hood and Emeline Felder, are the children of said marriage; then the plaintiffs should recover the lot, and your verdict will be for the plaintiffs; otherwise, your verdict will be for the defendant.’ To this charge the defendant excepted,” and requested the court to instruct the jury, among other things, that they must find for the defendant, if they believed the evidence; which charge the court refused to give, and the defendant excepted to its refusal. The charge given, and the refusal of the charge asked, are now assigned as error.</p>

Tried before the Hon. W. H. Crenshaw. This action was brought by James Cunningham, against Elisha 0. Milner, to recover a mule, with damages for its detention ; and was commenced on the 14th duly, 1873. The plaintiff claimed the mule under a mortgage executed by Ira W. Stott to J. B. Stott & Co., which was regularly assigned by said mortgagees to J. J. Melton & Co., and by them to the plaintiff, and which is hereinafter more particularly described.

Heard before tbe Hon. H. Austill. Tbe bill in this case was filed on tbe 23d August, 1875, by Josiab Morris, Sarah S. Watson, and Mary E. Semple, against Eugene Beebe, Eerrie Henshaw, Elmore & Gunter, Stone & Clopton, H. W. Hitchcock, and tbe executors of tbe last will and testament of Howell Eose, deceased; and sought the foreclosure of a mortgage on the “Montgomery Hall property” in the city of Montgomery, an account of the mortgage debt, and a sale of the property to pay…

Tried before tbe Hon. James Q. Smith. This action was commenced on the 1st March, 1870.

Tried before the Hon. W. B. Wood. This action was brought by George S. Good, against W. W. Jones, and was commenced by attachment, sued out before a justice of the peace, on the áth' January, 1876.

In tbe matter of tbe estate of Mrs. Martha Swearingen, deceased, on the petitions of E. A. Davis and Eli Swearingen, respectively, for the grant of letters of administration. The said decedent died in said county, intestate, in February, 1857, and no letters of administration on her estate had ever been granted. The petition of said E. A. Davis was filed on the 19th June, 1876, and asked the grant of letters to himself, but alleged no special right to claim it.

Heard before the Hon. H. Austul. The bill in this case was filed on the 8th August, 1867, by Patrick Bobinson, against Mary O’Neal and Catherine Cal-ford ; and sought the foreclosure of a… Held: that the complainant was not entitled to any relief on the case made by the amended bill, and that the former opinion delivered by this court in the case compelled him to hold the mortgage null and void. He therefore dismissed the bill, and his decree is now assigned as error.

Tried before the Hon. John K. Henry. This action was brought by John D. Stearns, against J. D. Gafford, to recover a bale of cotton, with damages for its detention ; and was commenced on the Mth November, 1870. ¿The defendant pleaded the “general issue, in short by consent, with leave to give in evidence any matter that might be specially pleaded; ” and issue was joined on that plea. “On the trial,” as the bill of exceptions states, “the plaintiff’s evidence showed, that one…

<p> Action on Gommon Counts, on Account Stated, and for Work and Labor. </p> <p>1. When recovery can not be had on common counts. — Under the Oode, as at common law, a recovery can not be had under the common counts as therein abbreviated, when the evidence shows only a valid special contract and its breach.</p>

Tried before the Hon. W. J. Haralson. This action was brought by Mrs. Charlotte Brown, against Matthew Lett, to recover damages for the conversion of the “ following chattels, to-wit: one yoke of oxen, one bay filly about four years old, one dark colored cow and her yearling, one two-horse wagon, and fourteen bushels of corn,” which were alleged to belong to the plaintiff’s statutory separate estate, she being a married woman ; and was commenced on the 29th January, 1873.

In the matter of the final settlement of the accounts and vouchers of William J. Tapp, as guardian of J ames A. Cox. The ward had attained his majority, and he appeared in person, and by attorney, and filed numerous objections (or exceptions, as they are termed in the record) to several items in the account as stated, and to the vouchers by which they were supported.

Tried before the Hon. W. J. Haralson. This action was brought by Thomas O. Sivoly, against Mahlon Scott, George D. Shelton, and J. B. Dines; and was founded on three promissory notes, given for the purchase-money of a tract of land sold by plaintiff to said Scott, the other defendants signing the notes as sureties for said Scott.

Tried before the Hon. James E. Cobb. This action was brought by Henry Ware, against Benjamin Fountain, as a partner in the late firm of Fountain & Hughes; and was commenced on the 2d February, 1869. The defendant having died, the suit was revived against James H. Shorter, as his administrator.

Heard before the Hon. H. C. Speake. The bill in this case was filed on the 23d December, 1869, by Mrs. Mildred A. Barclay, the wife of Ur. Held: to recover the rents, to prevent a multiplicity of Suits, and to remove her husband from the control of her property as trustee. Besides, she could not sue Mrs. Blocker at law, who was not in possession ; and she could not sue Plant, who was a nonresident.

Tried before tbe Hon. John A. Minnis. / This action was commenced in a justice’s court, on tbe 80th. May, 1871, to recover damages for tbe breach of a detinue bond, which was executed by Levystein & Simon as principals, and by the other defendants as their sureties.

Tried before tbe Hon. John Henderson. This action was brought by John T. Heflin, against Henry C. Bingham and Samuel B. Bingham, to recover the possession of a tract of land, which was described in tbe complaint as “ the east half of tbe south-west quarter, and tbe south-east quarter of section thirteen (13), township eighteen (18), range five (5), east, in tbe Coosa land district,” with damages for its detention; and was commenced on the 4th February, 1876.

Heard before tbe Hon. B. B. McCraw. In tbis ease, two bills were filed on tbe 12th February, 1872, by ^Joseph E. Garlington, against E. M. Wyatt and others, asking the foreclosure of two separate mortgages given for tbe purchase-money of land; and a decree was rendered by tbe chancellor, in each case, for the complainant. The two cases grew out of the same transaction, and present substantially the same facts; and they were argued and submitted together.

Heard before tbe Hon. B. B. McCraw. The original bill in this case was filed on the 7th November, 1871, by Edward T. Yarner, as the executor of the last will and testament of William Yarner, deceased, against Stephen M. Bartlett; and sought to foreclose a mortgage on a house and lot in Tuskegee.

Heard before the Hon. N. S. Graham. The original bill in this case was filed on the 16th June, 1873, by Charlotte Meadors and others, as heirs at law of Warner W. Meadors, deceased, against William S. Askew and John C. Meadors; and sought to vacate and set aside a sale of certain lands, which had belonged to said Warner W. Meadors, and which had been sold by said John C. Meadors, as his executor, to said William 8. Askew.

In the matter of the final settlement and distribution of the estate of Dudley Sale, deceased, by E. L. Hammond, the administrator. The said decedent died in said county of Madison, the place of his residence, in 1866-7; and letters of administration on his estate were regularly granted to said F. L. Hammond.

Tried before the Hon. John M. Chilton. This action was brought by Neil Pinckard, against Samuel T. Glass, to recover “the following personal property: one chesnut sorrel mule, valued at $150; about forty-five bushels •of corn, valued at $45; and about one thousand pounds of fodder, valued at $15, with the value of the hire or use thereof, during the detentionand was commenced on the 11th December, 1873.

The record does not show the name of the presiding judge. This action was brought by H. C. Jones, against E. G. Chandler, for the recovery of a horse, with damages for its detention; and was commenced before a justice of the peace.

Tried before the Hon. Louis Wyeth. In the matter of the petition of William Davidson, for a writ of mandamus to Elisha Washburn, a justide of the peace of said county, commanding him to vacate and set aside a judgment by default, rendered by him against said William Davidson, in an attachment case, on the ground that it was prematurely rendered at the return term of the writ.

Appeae from a decree rendered by the judge of probate of Montgomery county, in the matter of the petition of Charles McDade, asking an order for the sale of certain lands, belonging to himself and others as tenants in common, for partition, or equitable division among the parties in interest.

Tried before the Hoñ. John A. Minnis. This action was brought by W. S. Jackson, against Pierce & Morrison (or Pierce, Morrison & Co., as the name is indifferently written in the transcript), to recover six bales of cotton, the marks of which were particularly described, together with damages for their detention; and was commenced on the 20th January, 1871. The defendants pleaded “ the general issue,” and issue was joined on that plea.

Tried before the Hon. L. B. Strange. This action was brought by O. S. Holland, against Daniel J. Keller, to recover damages for the breach of a special contract, by which tbe plaintiff undertook to assist the defendant in effecting sales of a certain patent right for improved apparatus used iu tbe manufacture of carbureted hydrogen gas; and was commenced on tbe 28thFebruary, 1874. Tbe opinion renders it unnecessary to state the facts at length.

Tried before the Hon. James Q. Smith. This action was brought by Bobert A. Daniel, against 0.

Appbab from the Probate Court of Macou. In the matter of the petition of “ John Strange, an infant under the age of twenty-one years, by his next friend, Benjamin Strange,” for the partition of “a certain law library, consisting of about fifteen hundred volumes of text-books and reports,” which was alleged to belong to the petitioner and George W. Gunn as owners in common.

In the matter of the petition of William A. M. Jones, James G. Jones, and John C. Jones, for the sale of certain property, real and personal, for the purpose of making an equitable division or partition themselves and the other joint owners, several of whom were infants. The petition was filed on the 9th September, 1873, and was set for hearing on the 6th October; and on that day, a decree was rendered, ordering a sale as prayed, and appointing commissioners to conduct it.

In tbe matter of the insolvent estate of Littleberry Strange, deceased, on final settlement of the accounts and vouchers of Benjamin Strange, the administrator. The said decedent died, intestate, in February, 1875; and his estate was regularly declared insolvent.

Tried before the Hon. John K. Henry. This action was brought by Mrs. Musan A. Melear, John M. Parham, and Susan A. Parham, to recover a town lot in Greenville, and was commenced on the 10th April, 1874.

Heard before the Hon. B. F. Ligón, as special chancellor, Selected by the parties on account of the incompetency of Hon. N. S. Graham, who had been of counsel in the cause. The original bill in tbis cause was filed on the 12th May, 1873, by John M. Lambert, against Bichard T. Newman, Geo.