Volume 58 — Alabama Reports

Heard before Hon. H. Austill. This was a bill in equity, filed by the appellee, Henry Hall, against the appellants, to enforce a lien on lands for the purchase money. Held: and a gross fraud on the subsequent purchasers of notes, and Hall participating in it could not benefit by it. Perry was a trustee for the note holders, as fast as the notes were transferred by him. Those dealing with him had notice of the measure of his powers.

Heard before Hon. H. Austell. This was a cross appeal, and cross assignment of error, under the rules by consent of parties, on the record brought up on the appeal of the Alabama Gold Life Insurance Company v. Ball et al. That case is reported ante, p. 1, and involved the right to priority of satisfaction, between different persons to whom Perry, the vendor, transferred at different times, notes given by the Mobile and Montgomery Railroad Company for the purchase money of…

Heard before Hon. ChaRles Tueneb. The original bill in this cause was filed on tbe 6th day of March, 1873, by the appellee, E. N. Jones, as administrator de bonis non with the will annexed of Charles Satterwhite, deceased, against the appellant, John R. McDowell, as administrator of the estate of D. 0. Sellers, and numerous other parties.

Heard before the Hon. Hueiosoo Austill. This was a bill filed by one Chambers, the intestate of the appellant, against the appellee Robertson and others, to redeem a certain store which had formerly belonged to Chambers.

Tried before Hon. Powhatan Lockett. This was an action brought by the appellee, Maxwell, against the appellant, Tisdale, as the executor of one W. W. Tarry, to recover the amount of a promissory note made by his testator, on the 8th day of January, 1872, and the balance due upon account between Maxwell and the deceased.

Heard before Hon. Adam C. Eeldee. This was a bill filed by the appellees, Hoyle and wife, against the appellant, Dawson, and the New Orleans, Mobile and Chattanooga Railroad Company, and seeks to remove an alleged cloud on the title to a certain lot, (conveyed by Hoyle and wife to the railroad company,) by reason of a claim of title by Dawson, and to compel the company to pay the stipulated price.

Tried before tbe Hon. James Q. Smith. The appellee, Thomas Bobinson, brought his statutory real action against the appellant, Mary E. Oliver, to recover a tract of land belonging to her, which had been assessed to “owner unknown,” and purchased by the appellee Bobinson at a tax sale. Two years having elapsed, and the property not having been redeemed, the probate judge made and delivered a deed of the lands to Bobinson, who thereupon brought suit.

Tried before Hon. H. T. Toulhin. This was an information filed by the State in the relation of A. 0. Murphy against the Tuscaloosa Scientific and Art Association, for the purpose of having their charter declared forfeited for misuser.

Tried before Hon. George H. Craig. Tbe appellant Wilson brought tbis suit against Brown, late sheriff of Bibb county, and the sureties upon bis official bond, to recover damages for tbe failure of Brown to make the money on a certain execution for $500, besides $16 costs, placed in bis bands, in favor of the plaintiff, against one Thompson.

Tried before Hon. O. J. Semmes. Tbe indictment in tbis case charged that tbe appellants, Porter, and Jonathan and Millard Nirkbride, merchants, trading under tbe firm name and style of Ira W. Porter & Co., “ carried on tbe business of dealers in pistols, bowie knives and dirk knives,” at a certain place in tbe city of Mobile, without license and contrary to law, against tbe peace, &c. Tbe defendants pleaded not guilty, and a trial was bad on an agreed statement of facts as…

APPEAx~ from Oiroui~ Oourt of Dallas. Tried before Hon. GEO. H. O1~iec. The appellant Henry Robertson brought suit in the Cir cuit Court against appellees, Richard Robertson and others, upon an injunction-bond executed on suing out a writ of injunction on behalf of defendant Richard against the plaintiff, which was dissolved upon the answer of the latter.

Tbis was an application by John R. Tompkins, solicitor of the 6tb Judicial Circuit, for a mandamus to be directed to the judge of the City Court of Mobile (Hon. O. J. Semkes) to compel him to vacate and annul a certain order, retaxing the costs in the case of The State v. Eneas Loughry. The opinion states all the facts material to the application. The second count was a good count under § 4445 of the Code.

Tried before Hon. O. J. Semites. Han Eaire alias Han Farrell, was convicted of the murder of Peter Cornell, and sentenced to be banged. On the trial the State introduced one Neil, who testified that hearing Cornell had been cut, he went to his room and found deceased in bed.

Heard before Hon. Charles Turner. Tbe original bill in this cause was filed on tbe 13th day of November, 1874, by the appellee, Tarnissa McMillan, by ber next friend, against ber husband and Preston Tbe case made by tbe bill and amendment, answers and testimony, may be thus stated : Complainant, who was then a Miss Faulk, intermarried with ber husband in Monroe county, in this State, in tbe year 1846.

Tried before Hon. H. T. ToulmiN. Tbe appellee, H. A. Bice, brought suit against tbe appellants, Stone, Gray and Coleman, wbo were owners of tbe steamboat Clara, to recover damages for tbe failure to deliver a box of goods shipped from Mobile, and consigned to appellee at Gore’s Landing on tbe Tombechbee river.

Heard béfore the Hon. O. J. Semmes. The indictment in this case charged Tude Allen with robbery. The counts of the indictment differed only as to the amount and denomination of tbe money charged to have been taken from the person of the persecutor; the value laid in each count exceeding twenty-five dollars.

Heard before Hon. Charles Turner. Tbe appellant, -Elorence Y. Haney, by her nest friend, filed this bill against her husband, and one JB. M. Lundie and his wife. Appellant was a married woman, possessed of a statutory estate, consisting of certain lands in tbe city of Selma. Lundie also owned a bouse and lot in tbe same city.

Heard before Hon. Charles Turnee. The opinion states the case, The bill in this case avers special equities in the administrator of which the probate court could not take cognizance, and they show conclusively that the Chancery Court is the only forum where complete justice can be obtained. The Code expressly makes the estate liable for the costs of administration. — B. C. § 1888, 2060-64.

This was a petition by Webb for mandamus, to be directed to tbe Hon. Geobge H. Csaig, presiding over tlie Circuit Court of Dallas, to compel him to strike a certain cause from tbe docket; a motion to that effect having been made before him and overruled.

Heard before Hon. Adam O. Eelder. The beirs at law of William Ohilds, deceased, filed this bill against the appellant, Owens, praying, among other things, that he be enjoined from selling certain lands of the intestate, for payment of the expenses of administration and costs of certain litigation carried on by Owens, who, without being requested by the heirs or the only creditor, to whom an insignificant sum was due, sued out letters and carried on litigation, for certain-…

<p> Action on Promissory Note. </p> <p>1. Misrepresentation; what will avoid sale. — A misrepresentation by the seller, ■which will avoid the sale, or defeat an action for the recovery of the purchase-money, must be of a material fact, operating as an inducement to the purchase ; and the purchaser having a clear right to rely on it, must be deceived thereby.</p> <p>2. Caveat emptm'; to what, maxim applies. — The maxim, caveat emptor, applies to judicial sales ; the purchaser has no ground of complaint if the title sold proves valueless, and can not defend an action at law for the purchase-money, because of misrepresentations of the administrator in mating a sale of land under order of the court of probate.</p> <p>3 Sale of lands; what principle not applicable to. — The principle declared in Atwood v. Wright (29 Ala. 346), as to the fraud or misrepresentation of the administrator making a sale, is confined to sales of personalty.</p>

Tried, before Hon. O. J. Semmes. The appellant Moses was indicted and convicted for setting up and carrying on a lottery, without the legislative authority. One Murphy, who was indicted for a similar offense, growing out of the transaction for which Moses was indicted, was the only witness for the prosecution; the court having-allowed a nolle pros, as to Murphy at the request of the State.

Tried before Hon. Henry T. Toulmin. This was an action brought by the appellee, George W. Buckley, who was a distributee of the estate of W. W. Buckley, deceased, against the appellants, who were sureties on the bond of Wesley W. McGuire, as the general administrator of Mobile county, to recover for an alleged devastavit by said McGuire in the administration of the estate of said Buckley.

Heard before Hon. Hueiosco Austell. The original bill in this cause was filed on the 28th day of October, 1873, by John H. Stone, Joseph R. Edwards, executor of William J. Matthews, and J. L. Pringle, who were creditors of William B. Drake, against The Knickerbocker Life Insurance Company, The Continental Life Insurance Company, Charles E. Waller, administrator of the estates of William B. and Catherine G. Drake, deceased, William H. Drake, Mary L. French, Alpheus C. French,…

Tried before H. T. Toulmin. Wesley Bryars, a minor, by bis nest friend, Elizabeth Bryars, commenced suit by attachment against James Had-ley, Sr., and others, to recover damages for an assault and battery committed by them on him.

Tried before Hou. Geo. H. Ceaig. Frances Hunter, appellant’s intestate, brought this action on tbe 11th day of April, 1871, against Catherine B. Ellerbe, as administratrix of A. W. Ellerbe, to recover the amount due upon a promissory note made by him and others on the 9th day of June, 1856, “payable three years after date, to executors of ’William Hunter, deceased, with interest payable annually on the 1st day of January,” which note was averred to be the property of…

Heard before Hon. Hueiosco Austill. This was a bill filed by appellant, Charles Denby, to enjoin an action of ejectment, commenced by appellee, Mellgrew, by his next Mend, for the recovery of the possession of a certain lot in the city of Mobile. Mellgrew’s claim of title is as follows : One C. F. Mellgrew conveyed the lot in controversy to Eliza, his wife, in fee, by voluntary deed, in March, 1858.

<p>Appeal from tbe Chancery Court of Mobile,</p> <p>Heard before Hon. H. Austill.</p> <p>The opinion states the facts.</p>

Tried before Hon. George H. Craig. Tbis was an action on the case for damages, brought by the appellees, Marshall & Conley, against the appellants, Einstein, Hirsch & Co., for falsely and fraudulently recommending as worthy of credit, one Max Heller. The evidence showed that, in 1871, Heller came to the store of Marshall & Conley, and presented a letter, of which the following is a copy: “ Uniontown, Sept,- 26th, 1871. Messrs.

Tried before Hon. Haebí T. Toulmjn. , This was an action of detinue, brought by the appellants, Leigh Bros., against the appellee, the Mobile and Ohio R, R. Co., to recover twenty-three bales of cotton.

Heard before Hon. Hueiosco Austill. This was a bill filed by the appellants, the administrator and heirs of Julius Norton and Henry Lee, deceased, against the appellee, Schuessler, to compel specific performance of a contract to convey certain lands, made with said Lee and Norton in their life time, the facts of the case being thus: In 1854 appellant, Schuessler, being in possession of land adjoining the city of Montgomery, entered into a contract for the sale of ten acres…

Tried before Hon. H. T. ToulMin. The appellee, Elizabeth Bryars, as administratrix of Green B. Bryars, deceased, commenced this suit by attachment against James Hadley, Sr., and the other appellants.

Tried, before Hon. O. J. Semmes. B. A. Weems and L, H. Weems, as late co-partners under the firm name of B. A. Weems & Co., brought suit against appellant, Davidson, to recover the price of goods… Held: that “upon appeal, the court may treat the pleadings as amended in conformity to the evidence, in any respect in which an amendment ought clearly to have been allowed.”- — 40 Barb. 237; 1 Neman, 237 ; 19 Barb. 331; 21 N.Y. 305.

Tried before Hon. John K. Henry. Tbe indictment in tbis case charged, that before the finding thereof, “Aaron Green, a négro man, and Julia Atkinson alias Green, a white woman, did intermarry with each other against the peace,” &c. The defendant, Julia, demurred to the indictment, on the ground that it charged no offense; but her demurrer was overruled, and the trial proceeded on plea of not guilty.

Tried before Hon. George H. Craig. The opinion states the facts. The money was paid4 in compromise of a doubtful claim, and it cannot be recovered back. The appellee had full knowledge of the facts, and no fraud or imposition was practiced on him. No matter how mistaken he may have been as to his rights under the law, he cannot recover back the money paid and received in compromise of what was considered .a doubtful right. — 34 Ala. 400.

Heard before Hon. Charles Turner. The appellees, Sarah Norris and others, heirs at law and distributees of James Moss, deceased, filed this bill against Lamar, administrator of Moss, and Nunn and others, seeking, among other things, to enforce a vendor’s lien on certain lands which the administrator had sold and conveyed to Nunn, The case was as follows: Lamar obtained an order of the probate court to sell the lands for one third -cash, and the balance to be paid in one and…

Tried before Hon. John Elliott. Nabring, tbe appellant, borrowed of appellee, tbe bank of Mobile, in 1867, $3,000; and, to secure tbe repayment, be caused to be transferred to tbe bank tbirty-four shares of tbe capital stock of tbe Boyal Street Bailroad Company of that city, on the books of tbe company.' Afterwards be increased tbe security by a mortgage of some real estate.

Heard before Hon. Hubiosco Aüstill. The original bill was filed by the appellee, Henrietta Dade, against one Clayton, Isaac C. Moses, and Morris Dade, complainant’s husband-.

Tried before Hon. O. J. Sehmes. Tbe appellant, Thomas Fincher, was convicted of the murder of Simeon Wheeler, and sentenced to imprisonment in the penitentiary for life. Wheeler was quite an old man, and was in the habit of walking from his residence, near “Eight Mile Creek,” to Spring Hill, and there taking the cars for Mobile, every Mondy morning.

Heard before the Hon. H. Austill. This was a bill filed by the appellants, The Florence Sewing Machine Company against the appellee, N. A. Zeig-ler, Charles L. Cherry, and william Miller, as the administrator of one Bevault, a former partner of respondent, Zeig-ler ; and sought to set aside, as fraudulent, a conveyance of certain personal property, made by Zeigler, as surviving partner to Cherry.

APPEALCfrOm Circuit Court of Mobile. Tried before Hon. HAnEY T. TouLMnc. This was an action commenced by the appellant, H. B. Buckley, one of the distributees of the estate of W. W. Buckley, deceased, against the appellee, McGuire, and the sureties on his bond as general administrator of Mobile county, to recover for an alleged devastavit committed by McGuire, in the administration of the estate of said Buckley.

Tried before Hon. G-eo. H. Craig. The appellee, Slaughter, brought suit in the Circuit Court against appellant, McCrary and one Blair, to recover the amount of a promissory note, which the complainant averred was “made by them under name of Blair & Co.”.

Tried before Hon. H; T. Toulmjn. The appellee, Diana Anderson, brought suit against Turner and Hooks, as makers “of a promissory note made by them on the 25th day of October, 1878, payable ninety days after date, to the order of the plaintiff, at the Southern Bank of Alabama.” Turner made no defense, and judgment by.default was rendered against him. Hooks pleaded the general issue. A jury trial was waived, and the decision of the case submitted on an agreed state of facts.

Tried before Hon. H. T. Toulmin. Tbe appellee, Isaac Donovan, on the 9th day of October, 1873, brought a real action in the nature of ejectment against John A. Jacques, to recover certain wharf lots in tbe city of Mobile. Tbe case was continued for several terms, and tried in June, 1876.

<p>Ejectment.</p> <p>1. ~l'vor; without injury, what 1,9. -Where a cause is continued, as the judgment entry recites, "until the next term, with the express understanding that it is to be tried then, or dismissed from the docket," it may he dismissal, on motion, at the second ensuing term, notwithstanding a continuance at the intermediate term; and if a judgment of' non-suit is entered, instead of dismissed, this is error without injury.</p>

Tried before Hon. H. T. ToulmiN. The appellant Little was convicted of an assault with the intent to murder one Daniel Weaver.

The petitioner, William H. Nettles, being confined in the jail of Dallas county, under an indictment for the murder of one B. F. Powell, applied to the judge of the Circuit Court (Hon. GEORGE H. CRAIG) for habeas corpus and bail, which was refused. The testimony on the hearing was taken down in writing; exceptions were reserved to the various rulings of the court, and to the refusal to grant bail on the evidence.

Aepdal from Perry Chancery Court. Heard before Hon. Charles TURNER. The appellee, Sarah J. Martin, who, after the institution of the suit, intermarried with one Port,.filed this bill against Tubb, Jeffries, and certain persons composing the firm of Morey, Watson & Dunlap, to recover certain rents.

Heard before Hou. Chables TubNeb. The appellees, who are the heirs at law of Mrs. Mary L. Gayle, filed this bill against one Marshall, who had purchased lands of the statutory estate of said Mary, giving his notes for a part of the purchase-money, and against one Shields, surviving partner of a firm, to which, it is alleged, the husband, without the wife’s consent, transferred the notes in satisfaction of a debt, for which it is alleged she was not bound.

Tried before Hon. H. T. ToulmiN. This was an action brought by the appellee, Barksdale, against the appellant, Williams, to recover a balance due upon account.

Tried before Hon. Harry T. ToulmiN. This was an action brought by tbe appellee, Mrs. Kate Walker, against tbe appellant, to recover tbe amount of a policy issued by it in April, 1875, on the life of her father, Dr. Wood, and of which she was the beneficiary. Upon his application for insurance, Dr. Wood was required to answer various questions as to bis residence, state of health, present and past; tbe health, length of life, and cause of death of his relatives.

Tried before Hon. Geo. H. Cbaig. This was an action brought by tbe appellee, Mcllwaine, against tbe appellant, to recover a sum of money alleged to to be due under tbe following circumstances : Cooper, Moll-waine and one R. D. Jackson desired to purchase certain parts of a tract of land then owned by a minor, one Goldsby King, and Woods and wife, as tenants in common. Proceedings for a sale of this land, for division, were then pending in tbe Probate Court.

Tried before Hon. H. T. Toulmin. The appellee Wing brought detinue, the complaint being in the form prescribed by the Code, against appellant, Morgan, to recover a mule and wagon. Wing made affidavit, which he neglected to sign, before the clerk, and gave bond to obtain an order of seizure of the property.

Heard before Hon. Charles TueNer. This was a creditor’s bill, filed by the appellants, Lewis W. Potter and sons, and John Helton, against B. M. Nelson, administrator of James Johnston, Mary Gracie and William Gracie. Tbe object of tbe bill is to set aside a conveyance made on tbe 29th day of July, 1871, by James Johnston, in bis life time, ito Mary Gracie for life, remainder to William Gracie, ber son, as fraudulent as to bis creditors.

Heard, before the Hon. H. Austill. The facts of this case, as shown by the pleadings and proof, are, that Henry Kruse, a resident citizen of Mobile county, died intestate in July, 1858, leaving a widow and two infant children, his only next of kin, composing his family.

Tried before Hon. Joña HaralsoN. The appellants, Berry and Evans, were sued before a justice of the peace, on the same day, in three several suits, on promissory notes made by them on the 30th day of September, 1869, payable respectively on the first day of April, July and October following, “to J. M. Dedman as administrator of Hugh Eerguson.” Each of these notes was for $37.50. In the proceedings before the justice the plaintiffs are stated to be “Thos. 0.

Tried before Hon. H. T. Toulhin. Allen, West & Co., the appellees, commenced suit against one Hibbler by attachment, which was levied, among other things, on the cotton in controversy; whereupon, the appellant Starnes, made the statutory affidavit and bond to try the right of property.

Tried before Hon. H. T. Toulmin. Tbe appellees, Merrill, Eitcb & Allen, recovered judgment against Albert J. Leslie for tbe sum of $1,379, on tbe 19th day of December, 1876. On tbe 9tb day of January following, 0. W. Leslie was summoned by garnishment to answer wbat be was indebted to said Albert. 0.

Appear from Chancery Court of Perry. Heard before Hon. Chaeues TubNER. The appellee, John H. Chapman, as administrator de bonis non of one J. G. Cole, deceased, filed this bill against the appellant McCully, and one Mathews. The bill alleged that Cole died testate in Perry county, seized and possessed of certain lands.

Appeal- from Circuit Court of Mobile. Tried before Hon. H. T. ToulmiN. Appellee, Roberts, brought this action against the appellant, Bestor, as tbe administrator of one J. E>. Powers, deceased.

Tried before Hon. O. J. Semmes. Tbe appellant, Bowles, was convicted of tbe murder of Albert Smith, and sentenced to imprisonment in the penitentiary for life. Tbe evidence shows tbat Bowles lived some seven miles from tbe city of Mobile, and on the morning of tbe shooting, tbe deceased and one or two other persons passed by the bouse in which appellant, Bowles, lived, on their way to Mobile, as one of these persons bad promised to call Bowles as they went by.

<p> Action on Account Stated. </p> <p>1. Set-off; plea of, what evidence does not authorize. — A plea of set-off for “moneys collected” for insurance on goods shipped plaintiff and not accounted for, etc., interposed to an action against defendant upon account, does not authorize any evidence or question as to want of diligence on the part of the plaintiff, in not obtaining the part of the shipment not lost, and on which insurance was not collected.</p> <p>2. Recoupment, defense of; what confined to. — The defense of recoupment is confined to matters arising out of, or connected with the transaction which forms the basis of the plaintiff’s claim; and the court properly instructs the jury to find against the plea, if it be shown that the matters upon which it rested, do not arise out of, and are unconnected with the matters upon which the plaintiff’s action is based.</p> <p>3. Debt; where payable. — In general, in the absence of something to the contrary in the contract, it is the duty of the debtor to make payment at the residence of the creditor — hence, where suit is brought here to recover a debt calculated according to the standard of a foreign country, and payable there, the verdict is properly directed for the amount of legal tender notes, at the time Of the trial, required to put the amount due the plaintiffs at the place of their residence.</p> <p>4. Charge of court; zohat exception to unavailing. — It is the duty of a party excepting to the general charge of the court to point out specifically the error complained of, that the court below may have the opportunity to correct it if erroneous, or the opposite party may waive the giving of the objectionable part. A mere general exception does not accomplish this purpose, and if reserved to the entire charge, containing distinct and separate propositions, some of which are correct and others incorrect, the exception will be unavailing.</p> <p>5. Same. — kn exception to the general charge of the court, couched in language as follows, “To which charge, and each and every part of it, defendant excepted," is a mere general exception, and unavailing, unless the charge is erroneous as an entirety.</p> <p>6. Same; when refused to give, not revised. — The refusal to give charges requested, will not be revised on error, unless it affirmatively appears they were asked for in writing.</p>

Heard before Hon. Chaeles TueNeb. This was a bill filed by the appellant, Olive Jones, by next friend, against the appellee, Fellows, her former guardian, and others, and sought to compel an account and settlement by Fellows in the Chancery Court, and to charge him with certain investments of her monies in Confederate bonds, which will be noticed hereafter.

Tried before the Hon. H. D. ClaytoN. The defendants, Jerry Childs, Isaac Childs, and Jacob Childs, were indicted at the spring term, 1876, of Dale county, for the murder of Bosamond You. They obtained a change of venue to the county of Henry, where, on the 5th of September, 1877, they were tried and convicted of murder in the first degree, and sentenced to be hanged on Friday, the 19th of October, following.

Tried before the Hon. Powhattan Looeett. The indictment in this case charged that “Andrew Washington and George Neal feloniously took and carried away a hog, the personal property of one Bobert Harper,” &c. While the jury were being empanneled it was agreed between the defendants’ counsel and solicitor, that one Wm.

Tried before Hon. H. D. Clayton. The opinion states the case. 1. All criminal statutes must be strictly construed, and can can not be extended by construction, and this strict rule of construction would certainly give the words “sell” and “give,” in the Code of 1876, § 420, their common import and signification. See Crosby v. Hawthorn, 25 Ala. 221; Bettis v. Taylor, 8 Port. 564; Bartlett & Waring v. Morris, 9 Port. 266; Thurman v. State, 18 Ala. 276. 2.

Atpbal from the Circuit Court of Coffee. Tried before Hon. H. D. Clayton.

Tried before the Hon. H. P. CLAYTON. Defendant, Henry Powell, and others, were indicted and convicted of burning a gin-house, with valuable cotton therein. On the trial, the State introduced one Phillis Collins, whose examination on her voir dire, showed her to be the wife of one Milton Collins, who had already testified. Defendants objected to her as incompetent, because her husband's testimony tended to show that he was connected with the crime as an accomplice.

Tried before the Hort. JONATHAN Haealson. The appellant, Ed. Pickens, was indicted for the larceny of a horse, the personal property of one Win. A. Gay.

Tried before Hon. JONATHAN Haralson. 1. The proceeding against appellant is quasi criminal. — See Matter of Hamilton Baluss, an Attorney, 28 Mich. 507,508; Gumming v. The State of Mo., 4 Wall. 279; Ex parte Garland, p. 333. And being quasi criminal in its nature, it can not be maintained against any person, save a licensed attorney. — Code, § 861-883.

<p> Indictment for Retailing Liquor without License. </p> <p>1. Statute on retailing not repealed by revenue lazo. — Section 3618 of the Ke^ visocl Oode, prohibiting the retailing of spirituous liquors without license, is not repealed by the Eevenue Act of 1868, punishing ‘ ‘ engaging in, or carrying on, the business of retailing ” without license.</p> <p>2. Retailing without license, one act sufficient; net so with “engaging in busyness,” &c. — Under an indictment for retailing without license, a single act of unlawful retailing will sustain a conviction, while the “ engaging in or carrying on the business of retailing, ” is a different offense, and requires more evidence. — See Martin’s case, present term.</p> <p>3. Charge to find guilty; when should not be given- — A charge that “if the jury heliovo the evidence, they must find tho defendant guilty,” should not be given where the evidence is conflicting, or where, upon the evidence-, the 'jury could legally acquit the defendant.</p>

Tried before the Hon. John K. Henby. The indictment in this case was against Daniel Smith, Prank Snow, and Elbert Smith, but the last two only were on trial. After the State had concluded its evidence the defendants examined one Henry Smith, and asked him if he knew the defendant Daniel Smith, who was not on trial, to which witness answered that he knew him.

Tried before the Hon. H. D. Clayton. The appellant was indicted for having carnal knowledge of “or abuse in the attempt to carnally know Cora Blackshear, a female under the age of ten years.” The defendant was a negro boy about twenty-one years of age, and Cora, a little white girl, aged about seven years. There was no evidence that defendant did have carnal knowledge of said Cora.

Tried before the Hon. Geo. H. Cbaíg. The indictment in this case charged that “Albert Young, alias dictus, Albert Poole, Silas Wright, alias dictus, Bob. Jones, and Lucius Porter, unlawfully and with malice aforethought, killed Isaac D. Moore, by shooting him with a gun,” &c. Defendants were convicted of murder in the first degree, and sentenced to be hung on Friday, the thirtieth of November, 1877. On appeal to this court, the defendants assign as error: 1.

H. D. Clayton. The indictment in this case contained two counts, the trial being upon the second count, which was as follows: “The grand jury of said county do further charge that, before the finding of this indictment, Jim Rountree, Monday Rountree, Neil Asbury, John Isaiah, and Aaron Lampley, feloniously took and carried-— one bale of lint cotton, of the value of fifty dollars, the personal property of a person, whose name is to the grand jury unknown,” &c., omitting, as…

Tried before tbe Hon. Jas. E. Cobb. The indictment against defendant contained two counts, the first charging burglary and the second larceny. The defendant demurred to the indictment, alleging misjoinder, and other grounds. Pending the argument on the demurrer, the solicitor moved to ml. pros, the first count of the indictment, which was granted by the court against the objection of defendant.

Tried before tbe Hon. James Q. Smith. Defendant, Nelson Cummins, was indicted at tbe fall term, 1877, of said court' — tbe indictment charging tbat he corruptly gave, offered, or promised, to one Caleb Goodgame, the sum of $25, and a bull yearling, &c., or other thing of value, with intent to influence said Goodgame to kill and murder Fannie Cummins, tbe wife of the said Nelson Cum-mins, &o. During the trial, one Young, a witness for the State, testified, on…

Tried before the Hon. John HendeRSON. The defendants were convicted at the fall term, 1877, of said court, under the following indictment: “ The grand jury of said county charge that, before the finding of this indictment, Bull Miles and Amanda Overton, not sustaining the relation of man and wife, wickedly agreed and conspired together to leave, and did leave the county of Eandolph, for the purpose of illicit sexual intercourse between the said Bull Miles and Amanda…

Tried before tbe Hon. John Hendebson. The defendants, Charles Gore, and America Hester, were indicted at the fall term, 1876, of said court, for “ living together in a state of adultery or fornication.” The only evidence against tbe defendant, Hester, was tbe confession of Gore, made under tbe following circumstances: A witness for tbe State testified, that in tbe summer of 1876, be went to said Hester’s bouse, where be bad been called by ber to see a child of bers, which…

Tried before the Hon. James Q. Smith. Defendant, Esley Walker, was indicted at tbe spring term of said court, and trial was bad on the plea of “not guilty.” The evidence was that the mill-house of one J. C. West-brook had been broken into sometime in the summer of 1876, by some person who effected the breaking by boring through the floor of said house with an auger, one and one-eighth inch in diameter, which had been kept in a shop near such mill-honse; a hole was bored…

Tried before tbe Hon. James E. Cobb. Tbe appellant, C. A. Carroll, was tried, convicted and fined by one Thomas L. Kennedy, notary public, on a charge of trespass after warning. Held: as to that part of the sections referring to justices.— Taylor v. Woods, 52 Ala. 474. 3. The portion of the sections' referring to notaries, as clearly relates to civil jurisdiction as what precedes.

Heard before the Supreme Court, on affidavits filed in pursuance of tbe following notice; “ To Hon. Alpheus Baker, Judge of the City Court of Eu-faula; to Alto Y. Lee, Solicitor of the 8th Judicial Circuit of Alabama, and to S. H. Dent, Esq., leading counsel for the State in said case : • . “In Supreme Court oe Alabama, July, A. D. 1877. Alexander Judge alias Alex.

A puf.at, from City Court of Bufaula. Tried before the’ Hon. Alpheus Baeeb. Defendant, Alexander Judge, was indicted for killing unlawfully and with malice aforethought, one Bobert D. Wallace, by striking him with a stick or wagon standard. Issue was joined upon the plea of “notguilty,” and defendant was convicted of murder in the first degree and sentenced to be hanged on Friday, the 27th day of July, 1877.

Tried before the Hon. Jas. E. Cobb. Defendant, William Bailey, was indicted at the spring term, 1877, of said court, for larceny, the indictment being in the usual form.

Tried before Hon. H. D. Clayton. Tbe appellant, Robert Mitchell, -was indicted at the fall term, 1877, of said Circuit Court, for the murder of one Isabelle Hooks, bj poisoning with arsenic, and on the 30th of April, 1878, was tried and convicted of murder in the first degree; and, on the 2d of May, 1878, was sentenced to be hung — the court fixing Friday, June 1st, 1878, as the day of execution!

Tried before tbe Hon. John Hendekson. The following proceedings were had on the trial of this cause: Issue was joined on the plea of not guilty.

Tried before tbe Hou. Alpheus Bakee. Defendant, Anderson Griggs, was indicted for stealing a sack of coffee, tbe personal property of one Calvin W. Eenn— tbe indictment being framed in the usual way. Trial was bad on tbe plea of “not guilty,” and defendant was convicted and (tbe offense being grand larceny) was sentenced to imprisonment in tbe penitentiary for three years.

Tried before tbe Hon. H. D. Clayton. This action was brought on the 1st of February, 1877, by Elizabeth Whigham against Nace Collins, to recover two hundred dollars for the alleged conversion by him of three bales of cotton, which cotton was grown on the premises of plaintiff, by her tenant, one Elisha Wilkes.

Heard, before the Hon. N. S. Gbaham. The bill in this case was filed by Esau Brooks, appellee, against Gabriel Purswell. The averments of the bill are, that in the winter of 1887-8, said Brooks sold and conveyed to Purswell certain lands, executing his deed therefor, and turning over the possession to said Purswell.

Heard before the Hon. Charles TurNEE. The bill in this cause was filed on the 11th of February, 1873, by James B. Morris, appellee, against William G-.

Heard before tbe Hon. Hubiosco Austill. Tbis was a bill filed by appellants, Tbeo. H. Auerbacb and Martha Clements, administratrix of one P. B. Clements, deceased, against L. W. Pritchett, appellee.

Tried before the Hon. John K. HenRí. This was an action brought by appellant, J. L. Mills, against appellees, John F. Long and his sureties, on a deti-nue bond executed by appellees in a suit in detinue brought by said Long against appellant. The trial of the detinue suit was had at a previous term of said Circuit Court, which resulted in a verdict for the defendant (Mills) in that suit.

<p>Appeal from the Chancery Court of Henry.</p> <p>Heard before the Hon. B. B. McCeaw.</p> <p>William C. Oates, the appellee, filed his bill against John M. Bethune, James A. Flemming, W. H. Stuckey, Elizabeth John as guardian, and others. The bill avers that in 1872, one Henry Maybin sold certain lands described in the bill to said Bethune; that on the 21st of December of that year Bethune sold one-half of said land to said Flemming, and by-agreement of said three parties, the said Bethune and Flem-ming delivered to said Maybin, in part payment of said lands, their two notes, as joint purchasers, and that other notes were given by said Bethune and Flemming for said purchase; that some time after the giving of said notes, Maybin transferred one of them to said Oates, and the other to said Stuckey, which also was afterwards transferred to said Oates, the lien on said notes being still retained in Oates’ hands; that the said Maybin subsequently sold the other notes, to tvhom the complainant Oates does not know; that said Bethune and Flemming afterwards executed a mortgage on the whole of said land to said Mrs. Elizabeth John, as guardian of her children, for the payment of a note to her dated the same day as notes held by complainant, “but in fact,” the allegation is, “ said mortgage and the note it was made to secure, were executed and delivered to said Elizabeth Johns after the said notes held by complainant, and with her full knowledge, and notice to her, before she took said mortgage; that said Bethune and Flemming had not paid for said land.” It is further averred that said mortgage to Mrs. John was to secure a pre-existing debt, and that said Mrs: John is not an innocent purchaser without notice; that after giving said mortgage the said Bethune executed a deed of half of said land to the wife of said Stuckey and Bethune’s mother-in-law ; that said deed was upon a false consideration, and was made to defraud and delay the complainant, Oates, and other creditors of Bethune; that at the time complainant purchased said notes he had no knowledge of the mortgage held by Mrs. J ohn as above alluded to. The bill then concludes with a prayer for a reference to ascertain the amount due complainant on said notes, and to decree a lien upon the lands for the payment thereof, and to sell said land for such purpose. Instead of answering the bill, the following agreement was made: “ It is hereby agreed between the complainant and defendants, that the defendants make no defense, but that at the next term of the Chancery Court the complainant may take a decree for the sum of $1,476, with a lien declared on the land for its payment, but not to be enforced nor to bear interest until the first day of January, 1875, and if not paid then, said land to be sold for the payment of said decree to be rendered against John M. Bethune and James A. Flemming. Said Elizabeth John, as guardian, &c., is not to foreclose her mortgage, nor to take any action to that end until said first day of January, 1875dated January 15th, 1874, and signed by all the parties.</p> <p>In April, 1874, the Chancellor, upon the bill and above agreement, decreed that the complainant was entitled to relief, and ordered that said Bethune and Elemming pay to complainant said sum, on or before the first day of January, 1875, in accordance with the agreement, and that complainant have a lien on the land, and if said sum be not paid as aforesaid, that said land be sold, &c., to satisfy the decree, and that the mortgage debt in favor of defendant, Elizabeth John, guardian, &c., be postponed in favor of the lien of complainant, in accordance with said agreement. From this decree the defendants, Bethune, Elemming and Stuckey, have appealed to this court, (Mrs. John not appealing,) and assign as error, among other things, the following:</p> <p>1. Said decree violates the agreement of the parties in ordering and decreeing that the mortgage debt of defendant, Elizabeth John, guardian, &c., be postponed in favor of the lien of complainant,</p> <p>2. Because said decree is not in accordance with said agreement.</p> <p>3. Because said Elizabeth John had no authority to enter into said agreement or to consent to said decree.</p> <p>No briefs came to Beporter.</p>

ApPkat, from tbe Circuit Court of Monroe. Tbe record of tbis case never having come to tbe bands of Beporter, tbe same is, unavoidably, reported without tbe name of tbe judge before whom tbe trial was bad, and without a statement of tbe facts. To aid, therefore, in an understanding of tbe case, tbe counsels’ briefs, found on file, are printed in full. 1.

Tried before tbe Hon. JONATHAN Haralson. Tbis action was brought at tbe fall term, 1875, of tbe Cir-euit Court of Dallas county, and on tlie 9tb of June, 1876, was, by written consent of all parties, transferred to the City Court of Selma, where trial was had. The action was against Wm.

<p>Appeal from the Chancery Court of Chambers.</p> <p>Heard before the Hon. N. S. Graham.</p> <p>The case may be understood from the opinion.</p>

Tried before the Hon. H. D. ClaytoN. This action was brought by Edward B. Young, sr., against the Piedmont & Arlington Life Insurance Company, to recover damages for an alleged failure by said company to comply with what are claimed to be the stipulations of a policy of insurance, issued on the 11th day of January, 1869, by said company.

Heard before the Hon. N. S. Graham:. Bill was filed by appellees, William H. Barnes and Henry Clews, as trustees of the East Alabama & Cincinnati Railroad Company, against appellants, Richard H. Kelly and others, praying tbe appointment of a receiver to take possession of the railroad property, and manage tbe same, and seeking a foreclosure of a deed of trust, tbe execution of which will appear from the averments of the bill.

Heard before tbe Hon, Charles TueneR. On the 2d of August, 1869, the appellee, Bobert Foster, filed his bill in this cause, in the chancery court of Perry county, to have set aside a deed of trust executed by B. H. Lee, Jas. Lee,W. B. Brown, Jno, H. Lee, and tbe Perry Insurance and Trust Company, appellees.

<p>Appeal from the Chancery Court of Lee.</p> <p>Heard before the Hon. N. S. Graham.</p> <p>The case may be fully comprehended from the opinion. .</p> <p>No briefs came to Reporter.</p>

Heard before tbe Hon. B. B. MoGraw. I. As Kolb bad no legal estate at tbe time be made tbe mortgage to Newman, no legal estate passed by tbat conveyance to Newman; tbe mortgage conveyed only tbe equitable estate which Kolb then bad for tbe security of tbe debt to Newman. — Ghapman v. Glassel, 13 Ala. 54; Edmonson v. Montague, 14 Ala. 376. II.

<p>No briefs came to Reporter.</p>

Tried before tbe Hon. John C. Meadobs. Action was brought by Terry Collins, appellant, against Thomas J. Stephens, appellee. The complaint contained five counts; the first and second counts being for damages to the mill leased and for breach of an agreement to run the mill at defendant’s expense, and pay one-fourth of the lumber sawed; the third, for goods, wares and merchandize; the fourth, for money paid, by request ; and the fifth, for money due by account stated.

Heard before the Hon. Charles Turner. This case was decided upon demurrers to a petition which averred in substance as follows : That in'the year 1869, the president and secretary of said company, in accordance with the provisions of section 24 of the [Revenue Law of Alabama, approved December 31st, 1868, made and returned to tbe auditor of tbe State of Alabama, a statement, as required by said section, that said company had 20J- miles of main and side track in said county,…

Tried before the Hon. J. McCaleb Wiley. This was an action by Eobert W. Coleman, appellee, against the appellants'.

<p> Bill in Equity to annul a Deed and subject the estate therein to Administration and Distribution under a Will. </p> <p>1. Power of sale wider a will; what valid compliance. — A testator provided in his will that his wife was to have the power of selling or exchanging any of the property devised, for cash or other property, provided the power be exercised by and with the advice of two persons named in the will; whereupon the wife, by ordinary deed of bargain and sale, duly attested, conveyed a lot to another, reciting in the conveyance that it was with the knowledge and consent of the two persons named in the will, and such persons endorsed on the conveyance that they ratified and confirmed the sale, — held, that the sale was a valid execution of the power in the will, and conveyed the title to the purchaser.</p> <p>2. Bona Jkle purchaser from trustee; not responsible for application of funds. One who buys in good faith from a trusteo having power to sell, and pays the purchase money, is not responsible for its application, unless the purchaser colluded with the trustee, or knew of his intention to waste or mismanage the funds.</p>

Heard before the' Hon. N. S. Gbaham. In March, 1871, Corbitt, as administrator of Lawrence, obtained in the Circuit Court of Henry county, Ala., a judgment for $587.21 against John L. Eowler.

Tried before the Hon. Jonathan HARALSON. Tbis suit was originally brought before a justice of the peace by the appellee, probate judge of Dallas county, to recover fifty cents of the appellant, for a certificate of a deed, duly recorded by said probate judge, under § 2148 of the Code of 1876. There was no dispute about the facts. The case was taken to the City Court of Selma, where judgment was rendered against appellant for the amount claimed.

In tbe matter of Lemuel Henderson, administrator of tbe estate of John 0.

Heard before the Hon. N. S. GRAHAM. On the 11th of June, 1875, the appellants, G. D. Hooper and another, obtained, on a bill to subject lands to payment of debts secured by mortgage, a consent decree against ap-pellees, Wm. C. Younge, and another, ascertaining the several amounts due complainants (appellants), by defendants (appellees).

Tried before the Hon. James E. Cobb. This was an action of detinue brought by W. W. Felts, administrator of the estate of one Boston… Held: that the charge of the court below, in reference to the possession of the sheriff being the possession of the plaintiff, was incorrect, and said “we think it clear that if the sheriff, under instructions from the plaintiff or her attorney, discharged the first levy before the second’ writ was sued out, that placed the slaves under…

Tried before the Hon. James Q. Smith. This was an action brought on the 25th of September, 1877, by S. B. Zeigler, the appellant, against the South & North Alabama Railroad Company — a corporation chartered under an act of the legislature approved February the 15th, 1854 — to recover $50.06 damages, as the complainant alleges, “ for killing a yearling calf, the property of plaintiff (appellant), near Zeigler’s crossing on defendant’s railroad in said county, by running over…

Appuiai from the Circuit Court of Bullock. Tried before the Hon. H. D. CLAyToN. This was an action of trespass, quare clausurnj'regil, brought by appellee, Amaranth L. Gayle, against appellants, James Q. Smith. and Thomas W. Armstrong. The complaint is in the usual form, with some circumstances of aggravation alleged. Pleas puis darrein continuance, were interposed to said complaint, to which pleas the plaintiffs filed a replication.

Tried before tbe Hon. Jas. E. Cobb. Action was brought -by Simon Marx, appellee, ‘against Henry Sternau and his wife, Sarah Sternau, for $10,000, for— as alleged — “falsely and maliciously charging the plaintiff with tbe crime of embezzlement, by speaking of and concerning Mm in tbe presence of divers persons, under tbe following circumstances: The plaintiff, who was a clerk in the store of the defendant, Henry Sternau, bad sold a pair of shoes from said store to one Simon…

Tried before the Hon. JohN K. Heney. William J. Berdeaux, appellant, brought this suit against Evrit Davis, appellee, for $20,000 damages, alleging in one count of the complaint that said defendant “ falsely and maliciously charged the plaintiff with an attempt to commit larceny by speaking of, and concerning him, in the presence of divers persons, in substance as follows ; “ William J. Ber-deaux tried to steal Tobe Beady’s hog, but he could not do it,” &o. To this count the…

Tried before the Hon. JOHN Hendebson. Action was commenced by John T. Heflin, appellant, against the Rock Mills Manufacturing and Lumber Company, appellees, for seven hundred and fifty dollars, alleged to be due the appellant for work and labor done and performed by bim for the appellees. The defendants (appellees) not appearing or making defense to the complaint, judgment was rendered in plaintiff’s (appellant’s) favor for the amount claimed.

Tried before tbe Hon. John HendeRSON, Tbe original complaint filed in this cause, reads as follows : “ James C. Mitchell v. D. L. Davis, Judge of Probate: Tbe plaintiff, wbo sues as well for tbe State as for himself, claims of tbe defendant, judge of probate of Randolph county, Alabama, five hundred dollars, for issuing to John A. Arnold a marriage license to marry one Nancy E. Mitchell, wbo was under 18 years of age, at the time of issuing such license, without the consent…

Tried before the Hon. John Henderson. The appellant, John L. Robinson, brought suit against ap-pellee, D. A. Bullock, upon the following complaint: “Tne plaintiff claims of the defendant eighty thousand dollars for the breach of an agreement entered into by ber on the 13th of November, 186$, in substance as follows, to-wit: ‘The State of Alabama, Macon county.

Tried before tbe Hon. James E. Oobb. It appears from the record that judgment was obtained by one E. M. Ervin against tbe intestate (one L. B. Strange) of A. H. Graham, tbe appellee, at tbe Spring term (1868) of said, court; that execution was issued upon said judgment and returned to tbe Fall term; that an execution was issued on tbe 29th of September, 1874, and placed by tbe then sheriff in the bands of bis successor, and levied on lands sold January 2d, 1875.

Heard before the Hon. N. S. Gbaham. The bill in this cause was filed by Angeline Crane, appel-lee, a married woman suing by her next friend.

Heard before the Hon. N. S. Graham. The bill, in this case, was filed by William Murphy, and Thomas J. Murphy, and avers (1), that on the 13th of March, 1873, said Thomas J. Murphy was in possession, and was the equitable owner of a certain tract of land (described in the bill), but that the title thereto was in said William Murphy, he being the father of said Thomas J. Murphy; that on said day the said Thomas J. Murphy borrowed from one John C. Tanner the sum of $400,…

Heard before the Hon. Adam 0. Eelder. On the 10th of May, 1873, one Josiah Davis filed his bill in this cause, against appellees, Daniel J. Stephens and A. G. Hammond. After the filing of the bill, and before the June term, 1874, when said cause came up for decree and reference, Davis died, and leave was given to revive in the name of W. W. Bryant, the appellant, as his administrator.

Tried before the Hon. H. D. ClaytoN. On March 13th, 1875, one Watson and wife executed their Íromissory note to the appellant, James W. Balkum, for 75, due October 1st, 1875, to secure the payment of which they executed a mortgage to appellant upon their homestead, it being the property of the husband, consisting of 400 acres of land.

Heard before the Hon. B. B. McCbaw. The bill in this cause was filed August 15th, 1874, by Henry Smith, appellant, against appellees, to set up and enforce a mechanic’s lien on a certain house and lot in the city, of Eu-faula, under an act of the legislature, “ to amend sections 3101, 3102, and 3104 of the Revised Code of Alabama, and to repeal the same,” approved April 19th, 1873.

Heard before the Hon. Hueiosco Austell. William C. Oates, the appellee, as sole complainant, filed the bill in this cause on the 8th of February, 1875, against J. F. Watson, appellant, alleging that he was, in 1874, appointed guardian of Pocahontas Long, since married, and with whom he has made final settlement, and William B., and Mamie Long, children of James B. Long, deceased; that on the 23d of October, 1873, Mary Long, as administra-trix of J ames B. Long, deceased, by…

Tried before tbe Hon. E. M. Keils. 1. The averments of the complaint clearly bring the estate sought to be charged, under the operations of Art. 3, Oh. 1, Title 5, Part 2d, of the Eevised Code. Section 2371 of said article, declares all property of the wife, held by her previous to the marriage, or to which she may become entitled after the marriage, in any manner, to be her separate estate.

Tried before the Hon. C. J. L. CuNNINGHAM. Tbis was ah action brought by Kimbrough T. Jones, appellee, against tbe Mayor and Councilmen of tbe Town of Union Springs, for ten thousand dollars damages, for erection of a' conduit or sewer ou tbe west side of tbe premises of plaintiff, which sewer, as plaintiff claims, was so constructed by defendant that it unnecessarily and unlawfully changed the direction of the flow of the rain water, causing it to flow in large quantities…

Tried before the Hon. Littleberry Strange. Tbis was an action brought by John W. Mitchell, as administrator with the will annexed of one Jas.

Heard before the Hon. N. S. Geaham. Bill was filed by Felix I). Woodward, appellant, against Thomas M. Ecbols, appellee.

Heard before the Hon. ilmuosco AusTu~L. The bill in this cause was filed by appellant, Thomas J. Terry, administrator of the estate of Martha A. Johnson, deceased, against Nicholas B. Keaton and wife, appellees, to enforce a vendor's lien on two promisso±y notes, which the bill alleges to have been made by appellees, payable to appellant's intestate, for the purchase-money of certain lands conveyed by Martha Johnson and her husband, one Ashfield Johnson, to appellees.

Tried before tbe Hon. John M. Chilton. This was a suit to recover damages for tbe death of plaintiff’s (appellee’s) intestate, who was run over and killed by defendant’s (appellant’s) train in Opelika. Complaint was framed in reference to section 2297 and 2300 of Revised Code, and act of February 5, 1872, p. 83.