Volume 57 — Alabama Reports

<p> Action against Partners. </p> <p>1. Partnership; liability of members of, for debts of. — When the existence of a partnership, and the fact that it contracted a debt, are shown, the partnership and its members remain liable to suit as though the partnership continued.</p> <p>2. Same; plea of dissolution of, when court may regard as valid defense. In such a case, a plea that the partnership was dissolved before suit, will be bad on demurrer, or stricken from the files, as presenting an immaterial issue; hut if the plaintiff treats the plea as presenting a good defense, by taking issue on it, the court commits no reversible error in so regarding it, and instructing the jury accordingly, if there be evidence sustaining the plea.</p> <p>3. Repleader; when granted. — A repleader is granted only in advancement of justice, and under our system of pleading should not be granted, after a general verdict on all the issues, because one was immaterial, unless it affirmatively appears that the verdict is based on the immaterial issue only, and affects substantial injustice.</p> <p>4. Rulings of lower court; presumptions as to. — All presumptions not repelled by the record must be indulged in support of the rulings of the primary court, and the appellate court will not interfere with the refusal of the lower court to set aside a general verdict and award a repleader, when issue was joined on material as well as immaterial issues, and nothing appears in the hill of exceptions to show that the verdict could not be sustained on the material issues.</p>

Tried before Hon. JOHN ELLIOTT. The appellant Irwin, as executor of Fearne, brought his action against the “ Mayor, Aldermen aud Common Council of the City of Mobile, ” to recover certain taxes or assessment paid by him to the city under protest.

Heard before Hon. Huriosco Austell. The opinion states the case. Defendant Giovanni Lorenzo Lavretta is the person called in the opinion and generally known as Lawrence. Mere acquiescence by one infant, for a period short of that necessary to create a bar under the statute of limitations, will not prevent him from repudiating his deed and recovering his property. — Tucleer v. Mordecai, 10 Peters, 65; 17 Wendell, 44. This is especially true of a married woman.

Tried before Hon. George H. Craig. The opinion states the facts. A deposit by a debtor of money to his credit, with his banker, who held his past 'due paper, with instructions to the banker to pay such paper, is not a payment of such paper unless actually applied by the banker to its payment, or placed to the credit of the holder. 2 Pars. Con. 625; 4 Johns. N. Y. 377; 3 B. & C. 591; 17 Ala. 648.

Heard before Hon. Chas. Turner. This was a bill filed in May, 1874, by the appellee, Nancy J. Cook, who became of age in July, 1872, against the appellant, Stabler, and sought to annul or correct a settlement made by him as her guardian in the Probate Court in November, 1866, and compel a settlement in the court of chancery.

Tried before Hon. G. H. Craig. The Broad Street Hotel Company, a body corporate, brought this action against the administrator of P. J. Weaver, deceased, to recover damages for intestate’s breach of a contract made by him, for the purpose of becoming a stockholder in said corporation. The substance of the complaint, as also of defendant’s demurrer to it, are set forth in the opinion.

Heard before Hon. H. Austill. This was a bill filed by the appellee, Hoge, against the appellants, Alla and Patrick Pront, to foreclose a mortgage made by them to one Jerry Kelly.

<p>Appeal from Chancery Court of Dallas.</p> <p>Heard before Hon. Chas. Turner.</p> <p>The opinion states the case.</p>

■ Tried before Hon. Geoiige H. Cbaig. The appellees, Thomas and Eli Gilbert, sons of William Gilbert, deceased, brought this action against his administrator, to recover a sum of money had and received by said William for the use of plaintiff in the year 1847.

The record does not give the name of the presiding judge. .The appellant, Williamson, having obtained judgment against the appellee, Harris, on a debt contracted in 1872, garnisheed Tucker, the sheriff. Tucker succeeded Harris in that office, and, at the time of service of the summons, had one hundred and twenty dollars belonging to the latter, which Tucker had collected on executions placed in his hands.

Tried before Hon. George H. Craig. The opinion states the facts. There is no dispute that the defendant owes the amount due on the note, after allowing credit for the amount paid before notice of transfer. The question, then, is, who is the beneficial owner of the note ? It is clear neither Callen nor Morey, Watson & Dunlap, can claim any interest in the note — all they had, passed by their endorsement. Mrs. Holbrook has never' asserted any claim to it.

Tried before Hon. M. J. Saeeold. One Hill, as executor of Jas. Bell, brought this suit on tbe 5th day of January, 1870, against the appellees, Georgia and Bruce Mitchell, as administrators of James Vaughan, ■deceased, to recover the amount of a promissory note made by defendants’ intestate and payable to plaintiff on the 18th day of October, 1867. Hill having died, the suit was revived in the name of Lea, as administrator de bonis non, on the 26th day of November, 1872.

Tried before Hon. H. T. Toulmin. The appellant, Harrison, applied to the Circuit Court for mandamus to compel Gordy, probate judge of Washington county, to issue to petitioner “ a license to retail vinous or spirituous liquors at the town of St. Stephens, in said county, and within eight miles of the court-house at St. Stephens.” The probate judge refused, on the sole ground that since the passage of the “act to prohibit the sale of vinous or spirituous liquors within eight…

Heard before Hon. Htjeiosco Austill. This was a bill filed by Mrs. Catherine Peeples, by next friend, against Henry J. Peeples, her husband, and Louis C. Stolla, and sought to have declared null and void certain deeds, which she and her husband had executed to Stolla, of a certain house and lot in Mobile, and to enjoin proceedings commenced by Stolla to obtain possession.

Heard before Hon. H. Austill. These appeals were from decrees of the court below on bills filed to enjoin the collection of certain taxes assessed by the city of Mobile on certain steamboats, and involving kindred questions, were considered together. In the first case, the Mayor, Aldermen and Common Council of Mobile et al. appealed from the decree of the court below.

<p> Bill in Equity to foreclose Mortgage. </p> <p>1. Mortgagee, title of-, when prevails over that of purchaser at execution sale. — The title acquired by a mortgagee of the defendant in execution, in the interval elapsing between the stay by order of the plaintiff after issue of execution, and the issue of an alias fi. fa., will prevail over the title acquired by a purchaser at a sale under the alias fi. fa.</p> <p>2. Omission of stamp; when not came for refusing to admit instrument ■ as evidence. — The omission of stamps from a mortgage, in the absence of evidence showing an intent to defraud the revenue, will not invalidate the mortgage or prevent its operating a lien and notice, from the date of its filing for record.</p>

The appellant, Modawell, as administrator de bonis non of the estate of B. H. Hudson, deceased, reported said estate insolvent; and upon contest by A. G. Hudson, executor of Abner Hudson, who was a creditor, the court found the estate was solvent, and dismissed the report. It appears from the bill of exceptions reserved by Modawell on the trial, that Modawell was appointed administrator some time in the year 1865.

Tried before Hon. H. D. Clayton. The appellant, Blackman, brought suit against the appellee, Dowling, to recover the amount of a promissory note which Dowling had made to Blackman, which recited that it was given for Blackman’s “ part of the mail contract on route 6789 in Alabama,” and that certain deductions were to be made in event the pay was decreased or the route abolished.

Tried before Hon. H. X). Clayton. The appellees, Knox and others, brought trover against Sanders for the conversion of two bales of cotton, partnership property of the firm of Knox, Malone & Knox, title to which was in J. B. Knox and Malone, as survivors. The complaint was originally in the name of these two as survivors, and another as personal representative of the deceased partner.

Heard before Hon. A. W. Dillard. The opinion states the facts. The husband is the trustee of the wife, as to her separate statutory estate, and' he stands on the same ground as any other trustee. — 43 Ala. 685. The husband is not entitled to the income merely because he is not required to account for it as trustee; he is not vested with a title in his own right for any space of time. 36 Ala. 338.

Tried before Hon. H. D. Clayton. The appellee, Mrs. Mary Williams, brought trover against Auerbach for the conversion of certain cattle, constituting part of the corpus of her statutory estate. The case was tried ou an agreed state of facts, subject to exception to its competency and relevancy.

<p> Bill in Equity against Personal Representative of Deceased Surety on Administration Bond, to charge Him with Amount due by His Principal. </p> <p>1. Bill; when demurrable. — A bill in equity against a personal representative, to enforce a demand against his testator or intestate, prima facie within the bar of the statute of non-claim, must aver presentment within the period prescribed by statute, or the cause, if any, excepting the demand from its operation; and failing in such averments, is subject to demurrer, or motion to dismiss for want of equity.</p> <p>2. Presentment of claim; what mil not excuse failure to make. — It has never been doubted in this court, since the decision in Jones v. IAghtfoot, (10 Ala. IV), that knowledge of the existence of a claim, on the part of the personal representative, no matter how full, will not dispense with the necessity of an actual presentment, or something equivalent thereto.</p>

<p>Appeal from Circuit Court of Dallas.</p> <p>Tried before Hon. George H. Craig.</p> <p>Tbe opinion states the facts.</p>

Tried before Hon. GEORGE H. CRAIG. This was action brought by the appellee, the City National Bank of Selma, against the appellant, John, to recover of him the amount of a bill of exchange on which he was accommodation indorser. Payment was resisted on the ground that no notice of the dishonor of the bill had been given the appellant.

Tried before Hon. JOHN ELLIOTT. The Louisiana Equitable Life Insurance Company brought ■ this action against Paine, Rapier and Eichet, to recover- • damages for the breach of a bond executed by Paine as principal, and Rapier and Fichet as sureties, on the 18th •day of December, 1869, payable to said insurance company, .and conditioned as follows: “Whereas, the Louisiana Equitable Life Insurance Company has appointed the said -John H. Paine an agent of the company; now, if he…

<p> Judgment Nunc Pro Tunc. </p> <p>Judgment nunc pro tunc; presumption as to correctness of. — If a judgment nunc pro tunc affirms that sufficient matter to authorize it, appeared to the " satisfaction of the court, the presumption is, in the absence of a disclosure of the particular evidence, that the judgment was founded on legal evidence.</p>

Tried before Hon. John K. Henry. A. L. Pope, senior, appellant’s intestate, brought suit in the year 1871, against appellee, on a promissory note made by appellee’s intestate. At the spring term, 1875, plaintiff’s attorney asked to make certain amendments, which the court allowed against the objection of defendant, who resisted the amendment solely on the ground that it was a departure from the original cause of action.

Heard before Hon. H. Austill. In March, 1853, Henry McKibbin, who was then the . owner of the premises in controversy, being indebted to the .appellant, Coyle, for borrowed money, executed to him his promissory note for two hundred dollars, with a mortgage on the premises to secure its payment; which mortgage was-duly recorded soon after its execution. In August, 1856,.

<p> Garnishment. </p> <p>1. Garnishee; judgment against; when improper. — Where the answer of the garnishee discloses the fact that his notes to defendant have been transferred to a third person, before service of the garnishment, judgment can not he rendered against the garnishee without bringing in the tradsferree, or pursuing the course pointed out by statute, in event he can not be found. E. C. 2980.</p>

Tried before Hon. H. X). CLAYTON. Mathis brought suit against Oates, and Oates demurred to-the complaint. The court sustained the demurrer, and plaintiff excepted, and took a non-suit. This ruling is now assigned as error.

Tried before Hon. L. K. Smith. This was an action of ejectment brought by the appellee, Tutwiler, against the appellant. Tutwiler claimed the lands as purchaser at a sheriff’s sale of them, made under an execution against the appellant as surety on the administration bond of one S. P. Steele, after a return of “ no property ” against the administrator.

Tried before Hon. J. E. Cobb. -On the 23d day of February, 1874, the Pacific Guana Company brought this action against the appellee, Dawkins, to recover a debt due for certain sacks of guano, which that company sold him. The case was tried at the spring term,. 1876, and resulted in verdict and judgment for the defendant. The case turned, in' the court below, entirely upon the validity of the inspection, analysis, and branding of the guano.

Tried before Hon. George H. Craig. This ‘ was an action brought by the appellee, the Perry Insurance and Trust Company, against the appellant, King, to recover the amount of a bill of exchange drawn on and accepted by him. The cause was tried on pleas of the general issue and usury.

Tried before Hon. L. R. Smith. The appellant, Jones, brought his real action in the nature of ejectment, against the appellee, Wilson, to recover a house- and lot in the town of Livingston. Appellant introduced certain deeds from James Cobb and wife, and Thomas B. Wetmore, conveying the premises to-Mrs. Mary Ann Wilson, wife of the appellee, in terms which constituted them her statutory estate.

Heard before Hon. Charles Turner. Appellant McMillan, as administrator of one Mims, filed this bill against George Peacock and Mary, his wife, praying-the foreclosure of a mortgage they had executed on the 22d day of June, 1867, to secure a loan of money, for which they had executed their joint note to appellant’s intestate.

Heard before Hon. H. T. Toulmln. The appellee, Louisa Williams, filed her bill on the equity .side of the Circuit Court, against Price Williams and Robert, his son, composing the firm of Williams & Son, and against her own son John, and Mrs. Elizabeth Conner.

Tried before Hon. John Elliott. The appellants, King and Hogan, brought this action, on the 31st day of March, 1873, against the appellee, which was described in the complaint as “ The Board for the Improvement of the River, Harbor and Bay of Mobile, composed of Moses Waring, C. F. Moulton, Charles Walsh, and Caleb Price; said board being a corporation created under an act of the General Assembly of the State.” The complaint claimed of “ the defendant ” five thousand dollars…

Tried before Hon. George H. Craig. The appellant, Harris, brought this suit in the court below against Powers, the appellee. The original complaint contained three counts. The first two counts were in trover, for the conversion of about five thousand feet of plank and lumber.

Tried before Hon. John Elliott. Bush, Fogle & Greer commenced suit, by attachment, against Leach, Harrison & Forwood, the appellants, to recover damages of the latter for certain breaches and omissions of duty, hereinafter more particularly noticed, with respect to a consignment of cotton to defendants, for sale on account of the plaintiffs.

Tried before Hon. George H. CRAIG. The appellee, Armistead Bennett, brought his action of trover against the appellants, Thrash, Day, and Cochran, for the conversion of 4,714 pounds of seed cotton. Bennett and one Abies leased lands in Dallas county for-the year 1872. They then divided the land among themselves, and Bennett leased some forty acres of his portion to one Dennis Cochran, who agreed to cultivate the same that year.

Tried before Hon. George H. Craig. The appellee, Miller, brought trespass against Burns, for taking a set of blacksmith tools; and the latter having died pending the suit, it was revived against Clay, as his administrator.

<p>Appeal from Chancery Court of Monroe.</p> <p>Heard before Hon. Charles Turner.</p> <p>The opinion states the case.</p>

<p> Motion to dismiss Appeal. </p> <p>1. Appeal from ruling on demurrer to cross-bill; what authorizes. — The terms and policy of the “ act to authorize appeals to the Supreme Court in certain cases,” approved March 20, 1875, authorizing an appeal from “any decree ” sustaining or overruling a demurrer to a bill in equity, are sufficiently broad to authorize an appeal from similar rulings on a cross-bill.</p> <p>2. Appeal; what does not authorize appellate court to consider.- — Where the register’s certificate takes no notice of an appeal, although security for costs of appeal has been given and approved within proper time, this court will not notice such appeal.</p>

Tried before Hon. Harry T. Toulmin. The appellee, Mallon, sued “ Daniel McGill, President of the Davis Avenue Railroad Company,” before a justice of the peace, and recovered judgment against him.

Tried before Hon. Ltjtheb N. Smith. The appellant, Henderson, brought trespass de bonis asportavit against the appellees, Isaac Marx and Henry Mounier, for the conversion of a mule. The plaintiff had executed a mortgage on the mule to secure a debt which he owed Marx. This mortgage authorized Marx, on default of payment, to take possession of the mule and sell him.

Tried before Hon. George H. Craig. The appellee, Charlotte P. Coleman, acting jointly with her husband, purchased a tract of land from the appellant, Sterrett. Sterrett received, in part payment, $1,000 in cash, which was of the statutory estate of said Charlotte P., and a note signed by her and a surety, for the remainder of the purchase money. He gave possession to the appellee’s husband, and executed a bond to convey title to said Charlotte, upon payment of the note.

Tried before Hon. M. J. Safeold. Tyree brought suit against Reeves as indorser of a promissory note, payable in bank at Mobile, Alabama; and having-introduced the note, offered in connection therewith a protest by a notary of that city, bearing date May 20, 1862. The defendant objected to the introduction of the protest upon the grounds stated in the opinion, and the court refused to. permit it to be read in evidence, and the plaintiff excepted.

Tried before Hon. M. J. SAPEOLE. The appellant, Myer, who was a tenant occupying rented premises in the city of Selma, brought this action against the appellee, Hobbs, who was the proprietor of an adjoining lot, to recover damages resulting from a fall of a wall in the house occupied by appellant, which was caused by the negligent and careless manner in which appellee made certain excavations on his own lands.

Tried before Hon. George H. Craig. In July, 1868, appellant’s intestate, 11. M. Waddill, received of appellee, Conoly, twenty dollars, giving him a receipt therefor, wbicb recited that he received the money for Wm. Waddill. In January, 1875, appellee sued appellant to recover the money thus paid bis intestate, alleging tbat be had failed to pay over the money to Wm. Waddill.

Tried before Hon. John Elliott. This was a real action in the nature of ejectment, brought by the appellee, Elizabeth Connor, against the appellant, T. ,B. Lyons, to recover a certain tract of land in the city of Mobile. The case was tried at the summer term, 1874, and resulted in verdict and judgment for the appellee.

Heard before Hon. Adam C. Felder. The appellee, Campbell, filed his bill to foreclose a mortgage on a certain house and lot, made to him by Mrs. Ann A. Smoot. Mrs. Smoot having failed to answer, a deoree pro confesso was taken against her, and, on final hearing, the chancellor decreed a foreclosure of the mortgage and a sale of the property. Campbell became the purchaser at the foreclosure sale, and then moved the Chancery Court for a writ of possession.

Tried before Hon. W. S. Mull. Appellees’ testator, Bufus H. Clements, commenced this -suit by attachment against the appellant, Bice, in November, 1875; Clements died in December, 1875, and the appellees soon after qualified as his executors.

<p>Appeal from Sumter Circuit Court.</p> <p>Tried before Hon. George H. Craig.</p> <p>This was a real action in the nature of ejectment, commenced by the appellee, Virginia Hendricks, against the appellant, Thomas Kelly, to recover a lot in the town of Gainesville. There was a verdict and judgment for the plaintiff in the court below, and the defendant having reserved exceptions on the trial, brings the case here by appeal.</p> <p>Both parties deduced title from a common grantor, one J. A. Woodward.</p> <p>Mrs. Kelly’s title was shown to be as follows: On the 21st day of May, 1860, Woodward executed a deed of trust conveying the lot in controversy to Turner Reavis and W. T. Hare, to secure payment of a debt due one O’Neal. This deed, properly executed and acknowledged, was recorded next day. The debts secured by the deed not having been paid, Reavis and Hare, in strict pursuance of the powers vested in them by the trust-deed, sold and conveyed the premises to the appellee on the 29th day of February, 1869.</p> <p>Appellant bought the premises in controversy from said J. A. Wood-ward, on the 18th day of April, 1865, and received a conveyance, which was properly acknowledged and recorded in October following. After introducing this deed, “defendant offered to prove by parol that O’Neal, the cestui que trust, consented to and authorized the sale of the said property to defendant by said Woodward, the grantor in the deed of trust. The plaintiff objected to the introduction of the deed, and to the parol evidence offered in connection with it, and the court sustained the objection, and excluded the deed and parol evidence, and defendant excepted.”</p> <p>The defendant then offered to prove by parol that he purchased the property sued for from Woodward, with the consent of O’Neal, the beneficiary, and of the trustees, and under the advice of the trustee, Reavis; that defendant would not purchase said property until he was assured by the grantor in the deed of trust, the beneficiary, and the trustee, Reavis, that he was buying a good title, and that O’Neal told him the property was released from the operation of said trust. The plaintiff objected to this evidence of claim of title, and the court sustained the objection, and defendant excepted.</p> <p>“ The defendant then offered to prove by himself and the deposition of Woodward, that defendant went into possession of said property on the eighth of April, 1875, under a parol executed contract of sale made with Woodward, by the oral consent and authority of O’Neal, with the knowledge, advice, and consent of Reavis, the trustee, and that he had been in the adverse enjoyment of the property ever since that time, claiming it as his own, and holding it adversely to all persons. He also offered to prove that these facts were also well known to plaintiff at the time she purchased at the trustees’ sale, and that she knew of his claim to the property, the defendant in forbidding the sale having stated that her whole claim to it was from Woodward, the grantor in the deed of trust.” The plaintiff objected to this evidence of the character of defendant’s claim of title, and the court sustained the objection, and defendant excepted.</p> <p>This was substantially all the evidence. The court charged the jury, if they believed all the evidence, to find for the plaintiff, and defendant excepted. The various rulings to which exception was reserved, are now assigned for error.</p>

Tried before Hon. P. O. Harper. Appellant having obtained a -judgment for costs against -one O’Brien, execution issued thereon, and was placed in the hands of appellee, as sheriff of Monroe county. On the ■return by him of the execution, endorsed “no property-found/7 appellant moved in the Circuit Court for judgment against him and his sureties, for his failure to make the money on the execution.

The appellant, as administrator of one Reddin N. Parker, petitioned the Probate Court for an order to sell the interest of the estate in certain lands. These lands had formerly belonged to the father of Reddin N., and had descended to .him in common with the other heirs, and there had never been any division among them.

Heard before Hon. Chas. Turner. The appellant, Lockett, as administrator de bonis non of one Nave, deceased, filed this bill against Hurt, who had purchased the intestate’s lands at sheriff sale had after his death on executions issued in his life time, and Torbet, the former administrator in chief,' who had been removed, praying the court to compel Hurt to allow complainant to redeem, if the sheriff’s sale was valid, and also to have the sale set aside, on the ground of…

Tried before Hon. Oliver J. Semmes. Appellee, Price, sued appellant, Sossman, before a justice of the peace. In the justice’s summons the words “and wife ” follow the. name of the defendant, and are also found in the marginal statement of the parties to the judgment rendered by him. On appeal from the justice, Sossman and his wife gave a joint bond, which recites that the appeal was taken by Sossman, and his wife Lou E. Sossman.

Heard before Hon. HUPJOSCO Austill. The opinion states the facts. The power given in the deed is to sell, not to mortgage. Power to sell does not .authorize a mortgage. — 3 Hill, 36; 3 Barb. 128; 1 Sandf. Ch. 17; 46 Ala. 438; 5 Ala. 424. A mortgage given where the power does not authorize it, is void, and confers no right whatever. — 1 Sandf. Ch. 17; 1 Hill, 111; 4 N. Y. (Com.) 9; 1 Sugd. on Powers, 538; 1 Powell on Mortgages, 61; 2 Chaunce on Powers, 338.

Heard before the Hon. Geo. H. Craig. The case is sufficiently stated in the opinion. 1. Mandamus should not be granted unless it appears that the relator has a clear legal right to the performance of a particular duty by respondents. The test is, whether the party has a legal right to the remedy he seeks. — High on Extraordinary Remedies, § 10.

The record is too voluminous to attempt more than the following outline of the case.

Tried before the Hon. John K. Henry. The petitioners in this case, James H. Dunklin and Joseph Steiner, partners in business, represent themselves as owners of a lawful claim against Covington county, allowed by the Commissioners Court to one T. P. C., which was afterwards duly transferred to petitioners. The claim was in the shape of a warrant for $200, duly drawn by the probate judge, in pursuance of the order of the Court of Commissioners.

Heard before the Hon. B. B. McCRAW. Appellant, a married woman, was the owner of a plantation in Macon (now Bullock) county, as her statutory separate estate. Her husband was deprived of his trusteeship and of all control over his wife's separate estate by a decree of the Chancery Court. After such removal appellant and her husband executed jointly a mortgage on her plantation to secure the payment of advances made to enable her to carry ■ on the farm.

Heard before the Hon. Neil Smith Gbai-iam. The bill in this cause was filed July 20,1874, by John E.Kehoe and Andrew J. Ramsey (appellees), partners in trade, who, on the 27th of August, 1873, entered into a written contract with Vm, P. Copeland, appellant, to build brickwork on a certain store-house in the city of Eufaula.

Tried before the Hon. J. McCaleb Wiley. Harman Adams, one of the appellants, filed a bill in-chancery against James Olive, in which he prayed for and-obtained an injunction. The injunction bond was executed by said Adams and the other appellants as sureties.

Tried before the Hon. H. D. Clayton. On the 6th of January, 1876, Henry R. Shorter brought this suit against J. E. Carter for five hundred dollars for an alleged breach of contract entered into on the 25th day of November, 1875, by which, it is alleged, that in consideration of plaintiff’s agreement to”sell and convey to defendant certain lands, defendant agreed to purchase said lands from plaintiff at the price of three thousand four hundred and thirty-six dollars, in cash,…

Heard before the Hon. B. B. McCKAW. In February, 1871, Henry T. Wilkinson, appellee, filed the bill in this cause, against E. Lang, W. S. Paul-lin, and Martha Bailey, to enforce what he claimed was a vendor’s lien upon a certain lot in Eufaula: the promissory note upon which he claimed the lien was executed by defendant, Martha Bailey, October' 9, 1862, and payable on the first of December thereafter to said Paullin.

Heard before the Hon. B. B. McGraw. One George W. Hause was the husband of M. A. Hause, and while such received from one D. H. Hausé, the father of said M. A. Hause, a deed of conveyance to the real estate described in the original billas the subject matter of this suit.

Heard before the Hon. H. Austill. This bill was filed by appellants, the devisees of one A. B..' McGuire, deceased, to enforce vendors’ lien upon lands pur•chased by appellee, Barker, for balance due, under the following circumstances: McGuire and wife sold a tract of land to Barker, and Barker executed his promissory note for part ■of the purchase money, said sale being made in August, 1867.

Pleard before the Hon. B. B. McCkaw. In this cause, Victoria Boyleston, the complainant and appellee, sought to recover land in the Chancery Court, to which she shows legal title. The land had been conveyed to her by her father, while she was an infant, and while the father was a widower. The deed of conveyance was acknowledged and recorded soon after its execution.

Tried before the Hon. J. E. Cobb. This was an action of trover, brought by appellee against appellant, for the recovery of a horse alleged to be the property of appellant, and converted by appellee. On the trial the plaintiff read in evidence, without objection, a mortgage— executed by one William Ward, in consideration of his being justly indebted to Jordan (appellee) — on a horse, the property of said War3.

Tried before the Hon. J. McCaleb Wiley. This action was brought by Sarah Mattox, the widow, without children, of one A. T. Jones, deceased, by which she seeks to recover possession of a house and lot of which her husband was possessed at the time of his death.

Heard before the Hon. B. B. McCRAW. On the 30th of January, 1874, appellees, Cornelia J. Me— Naughten, Wm. H. Tyson, and Wm. W. Gordon, filed their' bill against C. B. Streater (executor of one Milton H. Streater, deceased), Elizabeth Streater and her minor children, and W. E. Stammers and J. C. Stephens (appellants).

Tried before the Hou. Geo. H. Ceaig. The suit in this case was brought by John C. Eeid, Alexander Graham and Chambers Graham, against William B. Modawell and Jesse B. Shivers, for the recovery of a certain tract of land in Marion.

Heard before the Hon. B. B. McCftAW. One Koonce, a party defendant to the original bill in this cause, sold a certain store-house and lot described in said bill to one L. L. Teague, another defendant, and made a •deed of conveyance to his wife, Mary Teague, in consideration of which said L. L. Teague was to assume and pay all the debts then outstanding against said Koonce, which he had contracted in mercantile business.

Tuskaloosa. Tried before the Hon. Wm. S. Mude. .This action was brought on the 19th of March, 1873, by the appellee, Andrew Logan, against the appellant, Tuskaloosa County, for fifteen hundred dollars, damages for an alleged breach of agreement, entered into between the appellant and appellee, for the construction of a bridge over North river, in said county, in pursuance of an order of the Court of County Commissioners, of the following import: “ August adjourned term,…

Tried before the Hon. J. McCaleb Wiley. This case was heard before the Supreme Court at a previous term, and may he found reported in 45 Alabama, 548, where its character is fully stated by Peters, J., who delivered the opinion of the court. It was then reversed and remanded,. and is now up on an appeal from the rulings of the court, below in the second trial.

Heard before the Hon. Adam C. Felder. On final hearing, on pleadings and proof, the chancellor decreed the relief asked in the - bill, and directed a new .account and settlement of the administration, and that the ..alleged errors be corrected. A clear idea of the case may be obtained from the briefs, together with the opinion. 1.

Tried before the Hon. J. McCaleb Wiley. This action was brought by Dillard & Jones, copartners,, against C. W. Mitchell and wife, for goods, wares, and merchandise, or family necessaries, valued at about three hundred and forty dollars, alleged to have been sold and delivered! to said C. V7. Mitchell at his special instance and request;-: and it is sought to hold the wife’s separate statutory estate-in payment therefor.

Heard before the Hon. N. S. Graham. On the 12th of February, 1873, William H. Locke, J. W. Oatis, W. O. Sylvester, and John E. Engram, executed and delivered to M. H. Streater & Co., a partnership in Eufaula, Alabama, a mortgage deed or crop lien, as follows: “ State of Alabama, Barbour county.

Tried before Hon. E. M. Keils. Issue was joined in. this case and the trial had on the plea of “ not guilty” to the following complaint: “ The plaintiff' (Bobert Peterson) claims of the defendant (Abner MeGehee) two thousand dollars for a trespass by the defendant on the following tract of land in the possession of the plaintiff (at the time said trespass was committed), to-wit: one hundred and sixty acres of land, it being a portion of the plantation of the defendant on the…

Tried before the Hon. P. O. Harper. This was an action brought against E. P. Holly, the appellee, 'by E. Watson, the appellant, for the alleged violation óf a ■ contract, or covenant, made between said parties, whereby it was agreed, that in consideration of said Watson cancelling .a valid contract between bimself and Holly for the sale of a certain tract of land, the defendant, Holly, would give the plaintiff, Watson, the value of the use and occupation of a certain tract…

Heard before the Hon. H. H. Clayton. This was an application to the Circuit Court of Barbour county, by the appellee, for a writ of mandamus against the City of Eufaula, the appellant, and to the members of the City Council thereof, naming them, and to their successors in office, requiring them ro levy, assess, and collect a tax sufficient to pay two judgments, with the costs thereof, obtained by appellee against said city before a justice of the peace.

Tried before the Hon. VYm. S. Mudd. This was a suit brought by Bobert Hamner, appellee, against Baleigh Pounds and Charles'Smallwood, appellants, for an alleged breach of a garnishment bond made by appellants — said Pounds having sued out a garnishment against one Simpson & Freeman, in a suit commenced by summons and complaint in the Circuit Court of Tuskaloosa county by said Pounds, against Wm. T. Hamner and Bobert Hamner.

Tried before the Hon. Wit. S. Mudd. In this suit Raleigh Pounds, the appellee, seeks to recover $1,500, and interest from the first of September, 1869, from Robert Hamner, and Wm.

Tried before the Hon. H. D. Clayton. This was a suit on attachment, brought by appellee, T. H. Auerbach, against appellants, S. P. Watson, P. PI. Watson and T. J. Plight. At the spring term, 1876, of said Circuit Court, the defendants appeared and moved the court to strike the cause from the docket upon the grounds stated in the motion, to-wit: first, because the same is unauthorized by law ; ■second, because the papers show that an ■ attachment will not lie in the case.

Heard before the Hon. Adam C. Felder. The appellant, complainant below, alleges in her bill that she intermarried with one Samuel Abernathy, in December, 1859, in the county of Dallas; that before said marriage her name was Maria L. Sanders; that she owned and possessed in her own right, an estate in law and personal property accruing to her from the estate of E. W. Sanders, who had died in 1857, which was a separate estate in her under the Alabama statutes; that in April,…

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

Tried before the Hon. H. D. Clayton. One D. R. Towns recovered a judgment againt one A. W. Mathews. Mathias Bracken, who was surety for said A. W. Mathews, paid the judgment, which was transferred to him by attorneys of Towns, with Towns’ authority. Bracken now sues out a writ of garnishment against the administrators of the estate of John Mathews, deceased, of ■which estate said A. W. Mathews was an heir.

Tried before the Hon. Luther It. SMITH. This was an action brought by A. Dean, appellant, against Howard B. Campbell, appellee, on a promissory note made by appellee on the 13th day of November, A. D. 1862, payable on or before the first day of January, 1863.

Tried before tbe Hon. John D. King. Tbe complaint was filed by James T. Hays, appellant, against B. L. Anderson et als. appellees, and is substantially as follows: “ The plaintiff claims of the defendant-dollars, for- tbe breach of a covenant entered into by them on the 15th day of September, 1873, conditioned to pay plaintiff all such damages sustained by him for the wrongful or vexatious suing out process of garnishment against G. F. U. on a summons and complaint, wherein…

Heard before the Hon. N. S. GRAHAM. The chancellor, in tbe final consideration of the case, decreed and ordered that the bill be dismissed; and his decree-1 is now assigned as error. The opinion of the court, with the abstracts of briefs of counsel, give a clear idea of the facts of the case. 1. There was no alteration in thé note.

Heard before the Hon. B. B. McCbaw. The bill was filed by the appellee, B. N. Hendrix, to enjoin an ejectment suit of the appellant, W. H. P. Bryan, and to reform a deed of conveyance executed by appellant to one E. T. Sherman — the land for which said deed was given being afterwards conveyed by Sherman to the appellee.

Heard before the Hon. N. S. Graham. A fuller history of the facts upon which the present case is founded may be seen by referring to the cases of Clark v. Hart, 49 Ala. 86, and Hart v. Clark, 54 Ala. 491. The case in 49 Alabama shows the circumstances under which Emeline Clark, the appellant here, recovered judgment against Henry C. Hart, the present appellee, on the note in controversy.

Heard before the Hon. A. W. Dillard. On the 30th of January, 1867, Harriet Hill, the testatrix, • executed her last will, in which, after providing for the payment of her debts in the usual way, she says: “ Second, I ^give, devise and bequeath all my real and personal estate, of every kind, to my husband, Eugene L. Hill, in trust, however,. for all my children now living, or hereafter born; subject,, however, to the qualifications and conditions hereinafter mentioned.” “…

<p> Bill in Equity to Enforce Payment of a Debt. </p> <p>Bill to enforce payment of a debt; when barred, by statute of limitations. A bill filed on the 28th of December, 1874, to enforce the payment of a debt which accrued on the 10th of September, 1866, growing out of a sale by one partner to another, of his half interest in the partnership property, the sale being considered for cash, allowing the purchaser a short undefined indulgence for payment, can not be sustained on demurrer, setting up the statute of limitations for six years, as a bar to such suit.</p>

Heard before the Hon. A. W. Dillard. In 1858, V. Gayle Snedicor was appointed guardian of .Bettie J. High, (the complainant and appellant), by the Probate Court of Greene county. Defendant had made certain settlements of his guardianship, and in 1858 he filed a petition in the Probate Court aforesaid, for an order to sell the complainant’s land. An order for sale was granted, and said land was sold.

Heard before the Hon. E. M.'Keils. This proceeding grew out of an appeal case from a justice-of the peace of Barbour county, to the City Court of Eufaula, in which case the present appellee was plaintiff, and' one Mathew Pryne defendant. On the trial of such case, de novo, in the City Court, the defendant consented to a verdict and judgment against himself for the costs, the plaintiff remitting the damages claimed in the suit.

Tried before the Hon. J. McCaleb Wiley. Early in 1873, one E. S. Culver, and J. T. Culver the appellee, gave the appellant as agent of Clayton & Light-foot, a commission firm in Savannah, Georgia, an order for a quantity of guano, for which a certain note and mortgage were executed by said E. S. and J. T. Culver. The guano was delivered to said E. S. Culver, at Ft. Gaines, Georgia, and divided between him and appellee before the executing of the note and mortgage.

Heard before the Hon. Chas. Turner. On the 27th of September, 1867, John D. Ragland filed his bill in this suit, in the Chancery Court of Dallas county, .against Anderson J. Pool, Webb Ross, Andrew J. Mullen, and James W. Moore, alleging as follows : First, that at the .spring term of the Circuit Court of Perry county, 1866, said Ragland recovered a judgment against said Pool for $48,764.17 ; second, that execution was issued on said judgment, placed in the hands of the…

Appkal from Circuit Court of Bullock. Tried before the Hon. H. D. CLAYTON. This was an attachment suit brought by Jesse Locke, administrator of M. B. Locke, deceased, against one Kerse Russell. The “replevin” bond in question is set out in the bill of exceptions as follows: “ The State of Alabama, Pike county.

<p> Action before Justice of the Peace -to recover Compensation for Medical Services. </p> <p>Competency of witness; section 3218, Revised Code, repealed, so far as affecting competency of witness under section 2904, Revised Code. — When-ever a party to the suit, or one interested in the issue, is a competent witness ■ under section 2704 of the Revised Code, the party against whom his testimony is offered cannot exclude him under section 3218, by swearing that “the testimony proposed to be given is untrue;” the latter section is-necessarily repealed so far as it affects parties competent to testify under-section 2704.</p>

Heard before the Hon. B. B. McCRAW. This was a bill filed by Daniel McDonald et als. against the heirs, and William C. Bostwick, administrator of the heirs; of Farcjuahar McRae.

Heard, before the Hon. B. B. McCraw. On September 3, 1866, one Lewis L. Cato executed to one Robert D. Thornton his promissory note for $2,464, under the following circumstances : Said Thornton was the executor of-one John W. Levy, and as such executor had obtained judgment against one John W. Johnston et al. and' said Cato — the latter being security in said judgment.

The record of tbis case never having come to hands of Reporter — the same being, perhaps, lost — the case is unavoidably reported without the names of judge or counsel, and without a statement of the facts.

Heard before the Hon. HüPJOSCO Austill. Daniel M. Brewer purchased of E. B. Wilkerson certain lands mentioned in the bill, and executed to Wilkerson his promissory noté tlierefor, whereupon Wilkerson gave bond for - title to Brewer.

Heard before the Hon. HlTB'IOSCO Austill. The bill in this case was filed by Mrs. Mahone, the executrix of Thomas Mahone, deceased, for the purpose of enforcing a vendor’s lien against J. H.'Beall, on the lands-mentioned in the bill, and setting aside a deed from J. H. Beall to M. E. Beall, which covered a part of the lands-alleged to have been purchased by Beall of Thomas Mahone,. since deceased.

ur. Heard before the Hon. B. B. McCraw. In this cause the complainant (Leader) claims a vendor’s ■lien upon four hundred acres of land in the possession of 'Hilliard Helms, defendant. Helms purchased the land in ■controversy from one Thomas Shepherd, or rather executed :.and delivered his promissory notes for said land, payable to . said Shepherd.

Tried before the Hon. P. O. Harper. This stilt was brought to recover damages for the breach ■of a bond given under section 2892 of the Revised Code, • authorizing creditors who have commenced suit by summons and complaint to garnishee any person supposed to be indebted to defendant on affidavit of the amount due, • and by giving bond as in attachment cases.

Heard before the Hon. Harry T. Toulmin. On the 19th June, 1875, John McArthur, the appellee,, made the following motion, which was entered on the docket: “State of Alabama, Mobile county — Circuit Court, spring term, 1875.

Tried before the Hon. H. D. Clayton. This action was brought by the appellee against U. L. Jones and Willis C. Wood, joint makers of a promissory note, of which said appellee, Blair, was the owner. The defendant, U. L. Jones, pleaded as a set-off a note held by him and a copartner, one Blackman, drawn by plaintiff in favor of the President and Directors of the Mobile and Girard Railroad Company.

The issue in this ease was between the administrator and ■one of the several distributees of John A. Goodson, deceased. On the 14th of June, 1873, N. N. Clements, as the adminis- ■ trator of the estate of said John A. Goodson, filed a petition ■ in the Probate Court of Tuskaloosa county, praying such necessary orders and decrees of said court as to compel a ' discovery of certain alleged advancements made by said • Goodson in his life-time to his several children.

Heard before the Hon. A. W. Dillard. On the 21st of September, 1874, the appellant, Harriett Sanders, filed her bill against appellees, alleging, among other things not necessary to be here stated, that she and her two brothers, Arthur F. and Ezekiel L. Sanders, became equal owners of a certain tract of land in Tuskaloosa county, as tenants in common, by purchase in October, 1869; that on the 16th of September, 1872, she and the said Ezekiel Sanders executed a deed conveying…

<p> Action on Promissory Note. </p> <p>1. Set-off; what proper subject of; when judgment not allowed for excess. A debt due to one of several defendants by a sole plaintiff, is a proper subject of set-off, and where it exceeds the demand in suit it is a good defense to the action, but does not authorize judgment over in favor of such defendant against the plaintiff, for the excess.</p> <p>2. Same; what question not raised below, cannot be raised on appeal. The question whether a debt due from an administrator to the defendant, or a debt due from the plaintiff’s intestate to the defendant, constitutes a proper subject of set-off against the administrator in a suit in his representative capacity, not having been raised in any manner in the court below, cannot be considered on appeal.</p> <p>8. Same; when appellate court cannot relieve. — Even where the issue joined is immaterial, if there was a trial, verdict, and judgment rendered on it. without exception or objection properly raised, this court cannot grant relief on appeal.</p>

Tried before the Hon. J. McCaleb Wiley. This suit was brought by appellant against appellees on ■September 2, 1874. In 1863, Alex. Outlaw was appointed administrator de bonis non of the estate of Henry Brown, senior, who owned land in Dale county. Some months after said appointment, Henry Brown, junior, died intestate, and said Outlaw was appointed administrator of his estate. Said Brown, junior, left no estate except the lands in controversy.

Tried before the Hon. J. E. Cobb. This was a suit brought by Morgan G. Stoudenmire and others against John C. Brown, for a tract of land purchased by the plaintiffs at a sale made by the tax collector on the sixth of March, 1871.

In the matter of the petition of J. W. Leslie, administrator, &c., the following proceedings were had. Said administrator, upon demurrer sustained to the original, filed the following amended petition: “ State of Alabama, Monroe county.

Heard before the Hon. B. B. McCraw. Bill was filed by appellee, Sarah G. Bass, suing by her next friend, Ambrose G. Hutchinson, against Sledge and Smith, and Williams, Birnie & Co., and another.

Heard before the Hon. N. S. Graham. Bill was filed by appellants (William C. Robinson and others), against appellees (William S. Denny and others), .alleging in substance as follows; In March, 1866, Jesse B. Robinson, the father of appellants, and under whom they claim, during stress of pecuniary embarrassments, and after he had “ pitched ” a large crop, was forced to borrow money to aid him to cultivate and save the same; that he applied to one Staples (under whom appellees…

Tried before the Hon. James E. Cobb. J. C. Abercrombie, the appellee here, sued out an attachment against one 'W. A. Smith, for rent and advances alleged to be due for the year 1876, and had the same levied on two bales of cotton alleged to have been grown on the rented land during said year. Dryer, the appellant, interposed a claim, under the statute, on account of a mortgage executed by said Smith to him on the fourth of March, 1876, and recorded two days thereafter.

<p>Appeal from the City Court of Selma.</p> <p>Tried before the Hon. Jonathan Haralson.</p>

<p> Bill in Equity for an Account, and Sale of Lands to Recover Money paid out of wife’s Statutory Separate Estate. </p> <p>1. Variance; when fatal. — Where the bill avers a statutory separate estate in complainant by inheritance from her deceased father, and the proof shows an equitable separate estate, the variance is fatal.</p> <p>2. Wife’s statutory separate estate; investment for her benefit; when not set aside. — Where a purchase is made by a husband for his wife, with the intent that it should be paid for by the products of the lands, as far as they would go, and the rest with her means, and when the land was paid for, the title to be made to her — reluctance on the part of the wife to close the contract because the price seemed excessive, is no ground for her afterwards to-set aside the investment in equity, since the statute (section 2709 of Jhe Code) authorizes the husband to invest the proceeds of the wife’s statutory estate for her benefit.</p>

Heard before the Hon. J. E. Cobb. The case is stated in the opinion. 1. The demurrer filed by appellee in the court below does not specify any objection to a matter of substance in the motion of appellant in the court below, and even if the motion of appellant abounded in error the court below should not have sustained the demurrer unless the objection or error were distinctly pointed out. — Revised Code, § 2656. 2.

Tried before the Hon. Littleberry Strange. This action was brought at the spring term, 1869, of said court, by the appellants against appellees. On the trial the plaintiffs offered in evidence the two promissory notes sued on, to which the defendant objected, stating, as his reason,, that said notes were not stamped with any internal revenue stamps of the United States. The objection wa,s sustained,, and the plaintiff excepted.

Tried before the Hon. Littleberry Strange. This was an action brought by appellant, C. M. Hooper, as administrator de bonis non of the estate of one Hartwell B. Green, deceased, against R. P. Scarborough, appellee, to recover certain lands which are conceded to have been the property of plaintiff's (appellant's) intestate.

Tried before tbe Hon. James E. Cobb. Tbis was an action, brought by appellees against appellant, for work and labor done, at the appellant’s plantation, by one Ed. Graham, who had transferred his account for the same,, to appellees. The defendant pleaded non-assumpsit, and the statute of frauds as to a promise to pay the debt of another.

Tried before the Hon. JAMES E. Cobb. Action was brought at the fall term, 1875, of said court,, by appellant, against appellee, for the recovery of certain lands situated in Chambers county. The plaintiff (appellant) offered in evidence a deed, showing title to the lands sued for, executed April 6, 1874, by J. E. Baggett, and S. T. Baggett. Said deed showed upon its face to have been duly executed in Cooke county, State of’ Texas, and attested by two witnesses.

Tried before tbe Hon. John Henderson. This action was brought by Biehard B. Pace, appellee, •against Thomas J. East, appellant, for the conversion by tbe latter of a mule belonging to the former. Tbe defendant pleaded “not guilty,” and that the property was not tbe property of tbe plaintiff at the time of the alleged conversion.

Tried before the Hon. James E. Cobb. This was a motion to subject tbe separate statutory estate of Mrs. Sidney Jones, to the payment of a judgment heretofore rendered in favor of D. T. Halliday, the plaintiff’ and appellant, against E. G. Jones, husband of said Mrs. Jones, on the ground that said judgment was obtained in a suit on an account for articles of comfort and support of the family, and for which the husband was liable at common law..

Heard before the Hon. N. S. Gbaham. The appellants, as heirs at law of one Joseph Lawrence, deceased, filed their bill against appellee for a final settlement, to which appellee demurred, as follows: “First, for non-joinder of parties complainant in this, to-wit: Thomas J. Lawrence was an heir at law and distributee of said Joseph Lawrence, deceased, as shown by the bill, and died after his father, and is not made a party complainant, as the law in such cases provides;…

Heard before the Hon. N. S. Graham. Tbis bill was filed by appellee, Geo. S. Cobb, as administrator of one James C. Sledge, against the Alabama Gold Life Insurance Company, of Mobile, a corporation under the laws of Alabama, the administrator ad litem of one Thomas L. Scott, deceased, James J. Smith, who resides in West Point, Georgia, and Mrs. Mattie Sledge, who resides in Lee ■county, Alabama.

Tried before the Hon. JAMES E. Cobb. This was an action in detinue brought by T. B. Dryer, appellant, against Charles Lewis, appellee, for the recovery of a horse, which had been mortgaged by one W. F. Lewis, the intestate of appellee, to appellant. The defense set up was the payment of said mortgage. . Plaintiff introduced the mortgage in evidence, which mortgage covered other property besides the horse — namely, two mules and five bales of cotton.

<p>Certificate of appeal from the Circuit Court of Lee.</p> <p>Neither transcript nor briefs came to Reporter.</p>

Heard before the Hon. N. S. Graham. Bill was filed in this cause by the heirs arid distributees of one John Smith, also known by the name of John Smith T., against Geo.

Heard before the Hon. N. S. GRAHAM. The case may be understood from the opinion. 1. The vendor’s lien is the creature of the court of equity. It does not exist by contract, and imposes no personal obligation. It follows the purchase-money and attaches to the land. No better or higher derivation need be searched for, than the dictates of justice, that land shall not pass from its owner to another without a consideration paid.

Tried before the Hon. John K. Henry. The appellant, Amanda M. Beeves, brought an action of trover against W m. H. Linam, appellee, to recover from him a horse belonging to her statutory separate estate, which her husband had conveyed to appellee under a mortgage made ■by himself alone, to secure the payment of a bale of cotton bought from defendant.

Tried before the Hon. Jas. E. Cobb. Action was brought by appellant, William H. Young, against Simeon O’Neal and John S. Burch, appellees.

Tried before the Hon. H. H. Clayton. This was an action brought by Rebecca Gilbert, appellee, against one John Gleeson, for the recovery of possession of' certain lands. The appellant, C. D. Campbell, made himself a party defendant, as the landlord of said Gleeson.

Tried before the Hon. JONATHAN HARALSON. This action was brought by Lewis W. Potter, appellee, against Moses Adler and his sureties, appellants, on a bond .given to replevy certain property levied upon under an attachment issued at the suit of said Potter.

Tried before the Hon. JOHN K. Henry. This was an appeal case from a justice of the peace to said court. During the trial in the Circuit Court, the plaintiff (appellee) was introduced as a witness, and testified that he made a verbal contract with defendant (appellant) by which •defendant agreed to furnish supplies to his laborers (tenants) for the year 1875, and that defendant was to keep the accounts of each laborer separately.

Heard before the Hon. B. B. McCkaw. The complainant, Roach, became the administrator of the-estate of one William Wright, the father of defendants (appellees), during the late war, receiving his letters of administration from the Probate Court of Henry county. After the “reconstruction” of the State, he made final settlement in said Probate Court, when the amount now claimed by him in the bill, as a charge upon said estate, was decreed against him in defendant’s favor.

<p> Motion in Chancery Coitrt to have Decree against Principal and Surety declared Satisfied, where the Surety was Released on Paying part of Decree. </p> <p>1. Release to one contractor is discharge of all at common law. — At common law, a release to one joint contractor operated a discharge of all, for the reason that otherwise the creditor, after paying the debt, might sue him who had been released, he being primarily liable, and there would be no release at all. .</p> <p>2. Effect of release under the statute; purpose of statute. — Under section .3039 of the Code of 1876, releases must have effect according to the intentioq of the parties. Such statute was enacted to relieve releases and other similar instruments from the technical construction sometimes imparted to them at common law.</p> <p>3. 8a?)ie; release of surety on decree of final settlement of guardianship. Where a decree is rendered against a guardian and his surety, on a final settlement of guardianship, and the surety is released by paying an amount less than the decree, such release does not operate as a full discharge of the principal, but he is entitled to a satisfaction of the decree pro tanto, and is liable to reimburse the surety for the amount so paid.</p>

<p> Trial of Right of Property under Attachment. </p> <p>1. Bent of lands for cultivation; duty of tenant to cultivate; landlord, entitled to what rent. — Where land is rented for cultivation upon the agreement to pay a certain share of the crops, the tenant should not allow the land to lie idle, but must cultivate it with proper industry; and the landlord is entitled to demand for rent sueh portion of the crop raised as his share would amount to if proper industry had been bestowed in cultivating the land.</p> <p>2. Same; abandonment by tenant; permission to advancer to gather crop. Where tenants, after obtaining advances which have a crop-lien under the ■statute, abandon the crops, it is proper for the landlord, though not his duty, to allow the advancer, in order to save himself harmless, to enter and finish the cultivation and gather the crops, which, in that event, after proper sentís paid, go to sueh .advancer.</p> <p>3. Same; failure of advancer to avail himself of such permission. — If' the advancer fails to avail himself of such permission, he relinquishes to the landlord ownership and right to the crops, and cannot afterwards have them attached as the property of the tenant.</p> <p>4. Same; when advancer may perhaps have action against landlord-Where the landlord enters and finishes the cultivation of the crops abandoned, after one making advances on them refuses to do so, the latter may, perhaps, maintain case against the landlord, if a surplus remains after-satisfying, the claim for rent and the cost and expenses of completing what the tenants should have done about the crops ; but, even in that event, the advancer could not have the landlord’s crops levied on under attachment-against the tenants.</p>

Heard before the Hon. N. S. Graham. Bill was filed in said Chancery Court by Allen C. Gibson, -appellee, against J. F. and F. E. Ashurst, alleging in substance as follows: That said Ashurts, although they reside in Tallapoosa county, Alabama, own real estate, a material portion of which, the subject-matter of this Jsrtit, is situated in Macon county, Alabama; that on the 27th of February, 1874, they executed to one Churchill Gibson their promissory note, payable on the first…

Tried before the Hon. H. D. CLAYTON. The points in the case ..are directly decided in the case of Abraham v. Carter, (53 Alabama.) 1. Miller had only a lien to secure his debt for rent, and nothing more. — Thompson; v. Spinks, 12 Ala. 155. He could not maintain trespass, trover, or ■ detinue against Copeland & Brantley, though they knew of the lien for rent. — lb.; Husey v. Peebles, 53 Ala. 432. 2.

e Circuit Court of Crenshaw. Tried before the Hon. JOHN K. Henry. This suit in detinue was brought by appellant, Jordan Dunning, against appellee, John Davis, junior, for two cows ■.andcalves, before ajusticeofthepeace, andremovedby certiorari to the Circuit Court.

Tried before the Hon. H. D. Clayton. Action was brought by appellee against appellants for the recovery of the penalty of two hundred dollars, allowable to the party aggrieved under sections -2222, 2223, of the Code of 1876, for failure of mortgagee to enter satisfaction on the margin of the record when the mortgage debt has been paid.

Heard before the Hon. N. S. GRAHAM. Bill was filed by Samuel Spence, appellant, against appellees, to recover of appellees, as stockholders, an amount claimed to be due appellant by “ The Alabama and Georgia Contracting Company,” a corporation which became a body corporate as alleged “under section 1755 of the Eevised Code, and the acts of the legislature amendatory thereof,” for the purpose of carrying on, as such corporation, the business of constructing railroads in the…

Heard before the Hon. Chas. Turnee. The record in this case is quite voluminous — containing a thousand pages; but from the view taken by this court, it becomes unnecessary, even if it were otherwise practicable, to give more than the following outline of the case: On the first day of October, 1866, Webb Ross filed his bill of complaint against A. J. Pool, John D. Ragland, and others, which was afterwards dismissed as to all the defend.ants except Pool and Ragland.

Heard before the Hon. Charles Turner. The complainant, S. W. Vaughan, (appellee,) let two of his plantations for the year 1873, to one Jarvis Harris for $3,000. The defendants, Hudson, Kennedy & Co., (appellants,) were Harris’ commission merchants, and had a mortgage on all his crops, second only to the landlord’s lien.

Heard before the Hon. B. B. McCraw. From the view taken by the Supreme Court in this case, it is unnecessary to elaborate upon the facts stated in the-opinion.

Tried before the Hon. H. D. Clayton. This action was brought by appellees against appellant, to recover certain lands. During the trial the plaintiffs offered to introduce in evidence a sheriff’s deed to plaintiffs, made under an execution and sale of property of appellant, in pursuance of a former judgment obtained by appellees.

Tried before the Hon. H. D. Clayton. 1. As the verdict of the jury was for the plaintiff, the judgment should have also been for him, and this court should render the proper judgment without remanding the case. 2. The judgment-entry is erroneous. The judgment recites that the plaintiff took a nonsuit, and the court referred it to the jury to ascertain the value of the horse sued for, and damages for detention.

1. The appellant has f right to his appeal — the Probate Court having rendered a decree as to the advancements alleged to have been made^-i-Revised. Code, § 2245. 2. If the proceeding is construed as having been commenced under section 1904, Revised Code, it was perhaps ■unnecessary that the statement of appellees should have been sworn to; but, under section 1906, it should have been sworn to; see, in this connection, section 1905. 3.

Tried before the Hon. H. D. CLAYTON. The appellants, as heirs at law of one F. W. McCullough, deceased, sued to recover a certain parcel of land from appellants, in possession, namely : Francis Wise, the executrix of said McCullough, and her husband and co-defendant, J. Q. Wise. The said appellants claim one half interest in the land.

Heard before the Hon. H. Austill. This was a bill filed by Jobn Daniel, appellant, against N. Collins and J. M. Fleming, merchants doing business under the firm name of N. Collins & Co., praying a specific performance of a contract between them, for the purchase of certain lands.

Heard before the Hon. N. S. Graham. Bill was filed on the 11th of October, 1870, by Lillia D. Allred — aged eighteen — whose maiden name was Lillia Dawson — and her husband, ~W. C. Allred, against Owen L. Lewis, appellant. It states that complainants intermarried on the 22d of October, 1869; that complainant’s mother, Georgia A. Dawson, died in May, 1861, leaving all her property — valued at $10,000 — by will to said Lillia.