Volume 59 — Alabama Reports

Tried before the Hon. John A. Minnis. The defendant was indicted at the July term, 1879, for an assault with intent to murder Michael Ford. The bill of exceptions in this case shows, “that Michael Ford owned and resided on a lot near the city of Montgomery; and that defendant owned and resided on a tract of land adjoining, and west of the lot óf Ford. The two lots were divided by a line fence five feet high, made of plank placed closely together..

<p> Indictment for Vagrancy. </p> <p>1. A lewd woman, supported by her parents, is not a vagrant. — A minor, .supported by her parents, who have an honest occupation, can not be convicted of vagrancy, although she may be a lewd woman.</p>

Tried before the Hon. John K. Heney. The defendant was indicted for obtaining goods under false pretences, and pleaded not guilty. The defendant went to the city of Greenville, in Butler county, on the 11th of October, 1877. There he sold a bale of cotton, which he had carried with him, and applied the money received for it to the payment of a mortgage debt, Avhich he owed to Strouse & Steinhart, merchants of that city. He asked if they Avould sell him goods that he wanted.

Tried before the Hon. James Q,. Smith. The indictment in this case was found by the grand jury of Autauga county, on the 23d day of October, 1877.

Tried before the Hon. John K.-Henry. The defendant was indicted at the spring term, 1876, of the Circuit Court of Escambia county, for feloniously taking .and carrying away “ one stick of square-hewn pine timber, the personal property of Mrs. Nancy George.” On the trial, a witness introduced by the State was asked, “Who was in possession of the-land on which the stick of timber grew ?” The defendant objected to the question ; the court overruled the objection, and the…

Tried before the Hon. John A. Minnis. The defendant was indicted for retailing liquor without license. He was employed as an agent or employee of the Standard Club, which was organized in the city of Montgomery, and incorporated under the general laws of the State, for literary and social purposes. It was governed by a constitution and by-laws, and occupied three rooms in the second and third stories of a building in the city of Montgomery.

Tried before the Hon. John A. Minnis. The grand jury of Montgomery county, at the February term, 1878, of the City Court of Montgomery, presented this indictment: “ The State of Alabama, Montgomery county.

Tried before the Hon John K. Henry. The defendant was indicted on the 29th day of November, 1876. The indictment is in these words : “ The State of Alabama, Butler County.

Tried before the Hon. JAMES Q. SMITH. The grand jury of Autauga county, at the fall term, 1877, of its Circuit Court, presented this indictment: “ The State of Alabama, Autauga county.

Tried before the Hon. James Q. Smith. At the fall term, 1876, of the Circuit Court of Lowndes county, the defendant was indicted for the larceny of a part of an outstanding crop of corn, alleged to be the property of S. A. Satterwhite. The defendant pleaded, “ not guilty.” It was proven that the defendant took and carried away a bushel of corn which grew, and was standing, on the plantation belonging to the estate of J. W. Cook, of which S. G. J ones' was the administrator.

Tried before the Hon. JOHN A. MlNNlS. The defendant was indicted for carrying a pistol concealed .about his person. He was arraigned, and pleaded “ not guilty.” The defendant was, on some night in July, 1877, at a political meeting held at Grattan’s store, in Montgomery county. At that time and place, he drew from behind his person a pistol, which was worn beneath his coat. Until it was drawn, the pistol was entirely concealed from observation.

Tried before the Hou. John K. Henby. The prisoner was indicted at the spring term, 1878, of the Circuit Court of Butler county,- for the crime of murder.

Tried before the Hon. John Henderson. The grand jury of Talladega county presented the following indictment: “ The State of Alabama, Talladega county. Circuit Court, fall term, 1876.

Tried before the Hon. William L. Whitlock. At the spring term, 1877, of the Circuit Court of Cherokee county, the defendant was indicted under the name of “ Zachariah Lawrence, for engaging ip, or carrying on, the business of a wholesale dealer in spirituous liquors, without first having paid for and taken out a license therefor.” At the-next term of the Circuit Court, the defendant filed the following plea in abatement: “ The State v. Zachariah Tjawrenee.

Tried before the Hon. JOHN Hend EPSON. The defendant was indicted at the spring term, 1877, of the Circuit Court of Coosa county, for keeping open store on Sunday. To this indictment he pleaded not guilty. The defendant was a shop-keeper, and carried on a retail business in the town of Rockford. Besides liquors, he kept some other articles of merchandise for sale. He slept in a room in the back part of the building in which his store was kept.

Tried before the Hon. John K. Henry. Aaron Green and Julia Chesser, edicts Julia Green, were indicted at the fall term, 1876, of the Butler Circuit Court, for “living together in a state of fornication or adultery.” At the next term of the court the defendant filed a plea to its jurisdiction in these words: “ Defendants, for plea in this case, say that this court ought not to take or have jurisdiction thereof, and that it should not be tried in this court, because, they say,…

Tried before the Hon. John A. MlNNlS. Emile Jacobi, Jacob Simmons, S. Roswald and Louis Goetter, were indicted at the July term, 1877, of the City Court of Montgomery, for permitting gaming on their premises. The defendants pleaded not guilty. They were the managers or superintendents of the “ Standard Club,” which was incorporated under the general laws of the State. It consisted of about fifty members, all of whom were “ resident citizens ” of Montgomery.

Tried before the Hon. John A. Minnis. At the February term, 1877, of the City Court of Montgomery, the grand jury presented the following indictment: “ The State of Alabama, Montgomery county.

Tried before the Hon. JOHN HENDERSON. At the spring term, 1875, of the Circuit Gourfc of Talladega county, the defendant was indicted for keeping a disorderly house. To this charge the defendant pleaded not guilty. When the case was called and was ready for trial, the court directed it to be tried by one of the panels of regular jurors, that had been impanelled and sworn to serve for the week. In the jury-box was seated a juror named Benjamin W. Nunis.

Tried before the Hon. John K. Henby. The defendant was indicted for playing cards at a public place in the county of Escambia, and pleaded not guilty. The proof showed that during the winter of 1876-7, the defendant was frequently seen playing cards in the woods, near a path which “ led from the town of Brewton to Burnt Corn creek, and to a neighborhood across the creek.” The path was “ used by children going to school,” as well as by •other persons.

Tried before the Hon. John Henderson. An indictment was found against the defendant, at the •spring term, 1877, of the Circuit Court of Coosa county, for the crime of arson. To this indictment the defendant pleaded not guilty. About midnight, of a day in December, 1876, the gin-house of one P. J. McAdory, who lived in Coosa county, was burned. The next morning he accused the defendant of burning the house. The defendant denied that he had done so.

Tried before the Hon. John Henderson. The defendant, W. T. Ozeley, William Ozeley, and James M. Reynolds, entered into an undertaking of bail. Its condition was that the said W. T. Ozeley, alias Thoinas Ozeley, then in custody, should appear at the next term of the Circuit Court of Talladega county, to answer the charge of burglary. He failed to appear at court.

Tried before the Hon. John K. Henry, The defendant was indicted at the spring term, 1878, of the Circuit Court of Butler county, for the offence of placing obstructions on the railroad track. He pleaded not guilty. A freight train on the Mobile and Montgomery Railroad left Montgomery for Mobile on Saturday night before Christmas, 1877.

<p> Bigamy. </p> <p>1. Two crimes are punishable under section 4185 of the Code. — Section 4185 of the Code declares two offences of different elements, but of the same general character, and punishable in the same manner.</p> <p>2. Bigamy can be prosecuted only in the county where the marriage was solemnized. — One of these offences (bigamy) can be prosecuted and punished only in the county in which the unlawful marriage was solemnized; the other is complete and punishable in any county in which the parties “ continue to cohabit” after the unlawful marriage.</p> <p>3. An acguittal of the former crime does not prevent an indictment for the latter. — An acquittal of the former of these crimes is no bar to an indictment for the other.</p> <p>_ 4. Oral proof of the marriage is admissible. — Under an indictment for either of the offences declared in section 4185 of the Code, oral proof of the marriage is admissible.</p>

Tried before the Hon. John A. Minnis. The defendant and George Franklin were indicted for the crime of larceny, by the grand jury of Montgomery county, at the October term, 1877, of the City Court of Montgomery. At the next term of the Court a nolle prosequi was entered in favor of George Franklin, and he became a witness for the State. He testified “ that he was with Tobe Smith, the defendant, on the night of the larceny; that Tobe Smith started to kill a hog in Ur.

Tried' before the Hon. JAMES Q,. SMITH. The defendant, and Walter Raiford (who was not tried),, were indicted at the Spring term, 1878, of the Circuit Court of Lowndes county, for an assault with intent to murder Granville Stocks. Neither the defendant nor Walter Raiford knew Stocks, and first met him at the house of a common acquaintance on the night of the difficulty.

Tried before the Hon. James Q. Smith. On the 20th day of December, 1875, Robert T. Smith, Auditor of the State of Alabama, issued the following notice, viz : “The State of Alabama, Auditor’s office, Montgomery, December 20, 1875.

Tried before the Hon. James Q,. Smith. The facts are contained in the opinion. 1, Section 1535 Revised ■Code fixes the mode and manner of executing deeds of conveyance. It is imperative. This is shown by the use of the word “ must.” That part which signifies the instrument to be written or printed, or that part of it which requires the the name of the contracting party to be signed at the foot, &c., could just as well be disregarded as the portion in reference to attestation.

Heard before the Hon. HuRIOSCO Austill. The facts appear in the opinion. 1. No authorities go to the extent ofsaying that the administrator of a deceased mortgagor is not a proper party to a bill of foreclosure. ' If the mortgagee chooses to proceed for an account he may, and the better opinion would seem to be, he must make the -personal representative a party. 5 Ala. 158.

City Court of Montgomery. Tried before the Hon. John A. Minnis. The facts are stated in the opinion. 1. The court below-granted the writ as to those cases where prisoners were acquitted on trial, and refused as to all other cases. . Appellant thinks the court erred in this latter ruling. Section 5043 of the Code of 1876, enumerates the fees and allowances of sheriffs in criminal cases. Among others, one dollar each for committing to, and releasing a prisoner from jail.

Heard before the Hon. Hüftiosco Adstill. The Montgomery and West Point Railroad Company, a corporation of the State of Alabama created by an act of the .legislature, passed in the year 1843, had in the year 1870, ■one. hundred and seventeen miles of railroad, and other .property of great value. It was indebted at the same time .to the amount of about two-thirds of that value. Its stock .sold in the market at thirty cents on the dollar.

Appeal' from the Probate Court of Conecuh. Tried before the Hon. F. M. Walker.

Tried before the Hon. JOHN K. Henry. The defendants, George P. Hammons, W. W. Hammons,. R. E. Hammons, S. L. Lowery, William Owens, and James C. Garrett, on the 10th of July, 1869, entered into an undertaking of bail, conditioned for the appearance of George P. Hammons at the next term of the Circuit Court of Escambia county, to answer the charge of murder. The said Hammons failed to appear.

Heard before the Hon. HüülOSCO AUSTILL. Sallie E. Wilson, a married woman, filed, by her next friend, John George, a bill of complaint in the Chancery 'Court of Butler county, against Thomas A. Knight and Solomon D. Wilson, praying for a writ of injunction and other relief. The bill of complaint alleged that the complainant was ■married in 1867, in the State of Georgia, to Solomon D. Wilson, and was still living with him as his wife.

Tried before the Hon. JOHN A. MlNNlS. The plaintiff, Buckner H. Mitchell, brought suit to the October term of the City Court of Montgomery, against Thomas J. McCullough, to recover the money due on a promissory note made by him.

<p>Appeal from the Circuit Court of Etowah.</p> <p>Tried before the Hon. W. L. Whitlock.</p> <p>The facts are contained in the opinion.</p>

Heard before the Hon. HURIOSCO Austill. This bill of complaint was filed by John P. Streety as the surviving partner of the firm of Streety & Rinaldi, in the Chancery Court of Lowndes county, against Mrs. Susan E. Dacus and others, to foreclose a mortgage upon the land therein described.

Heard before the Hon. Hueiosco Austell. On the 26th day of May, 1874, Kate M. Carson, the widow of Thomas A. Carson, filed a bill of complaint'in the Chancery Court of Lowndes county, against Lloyd Barnes, James H. Hickson, George W. Bender, Moritz Meyer and Adolph Elkan.

Before the Supreme Court. The petition of the Alabama Gold Life Insurance Company, praying for a writ of mandamus, directed to the Hon. Huriosco Austill, Chancellor of the Southern Chancery Division, contains the following facts: On the eighth day of March, A. D. 1878, the petitioner and Isaac Eriedman & Co.,- as creditors of David Bear, filed a bill of complaint in the Chancery Court of Butler county against Adolph Greenhut as assignee of David Bear, and also against David…

Before the Supreme Court. A suit was commenced in the Circuit Court of Butler county by Adolph Proskauer to recover damages against T. B. McCall, William Hamilton, William. H. Morris and B. L. Long, as sureties on a supersedeas bond, executed by J. D. Gafford as principal.

Tried before the Hon. John A. Minnis. This is a motion made by L. A. Shaver, as county superintendent of education of Montgomery, in the City Court of' Montgomery, against Patrick Robinson, as tax-collector of' Montgomery county, to recover a summary judgment for seven hundred and eighty-nine dollars, the amount of poll-tax collected by him from the tax-payers of the said county, in the month of October, 1877.

Tried before .tbe Hon. John A. Minnis. Tbe facts appear in the opinion. 1. There is no doubt that a judgment necessarily affirming the existence of certain facts is conclusive between the parties. This is true even when the facts are incidentally in question in relation to a different matter.—Freeman on Judg. § 249; 25 Cal. 272; 6 Pet. 729. The record of a former recovery is conclusive. Freeman on Judg. § 257.

Heard before the Hon. Huriosco Austill. The facts are contained in the opinion. 1. The equity of the bill is unassailable. It rests on the familiar doctrine that, although the bonds have been declared void, they are negotiable paper, payable to the bearer, not yet due, and may pass into the hands of bona fide holders for value, who may subject the city of Opelika to harrassing suits and expensive annoyance.—1 Vesey, 3; 1 John’s Chan. Hep. 517 ; 1 Story Eq.

Tried before the Hon. John A. Minnis. Patrick Robinson, tax-collector of the county of Montgomery, while engaged in the collection of taxes assessed during the year 1876, was informed that Lehman, Durr & Co. bad escaped the tax-assessor as to some subjects of taxation and species of property for a number of years.

Tried before the Hon. James Q,. Smith. The plaintiff, Willis Smith, brought suit in the Circuit Court of Montgomery county against the Mobile and Montgomery Railway Company, to recover damages for an injury sustained while engaged in its service. He was employed as a fireman on an engine attached to a construction train of the defendant.

Heard before the Hon. HUBIOSCO AUSTILL. On the 10th day of May, 1871,' Eliza Wood, a married woman, filed a bill of complaint by her next friend, in the Chancery Court of Butler county, against her husband, George W. Wood, Joseph Beasley, Stephen Bishop, and Matthew Bishop.

Heard before the Hon. Charles Turner. The facts are contained in the opinion. 1. There-is only one question presented by the record. It is the action of the chancellor refusing to allow the appellant to amend his answer. If the amendment proposed was material, and no final decree had been made, it is clear the chancellor erred in his refusal.—Code of 1876, § 3790. 2.

Heard before the Hon. Hubiosco Austill. The facts are stated in the opinion. 1. The bill had equity in it. The object of the bill was to enjoin the defendants from foreclosing a mortgage alleged to have been paid and discharged.—37 Ala. 354; 14 Ala. 476. The damages resulting from a breach of contract may be ascertained in a court of equity.

Tried before the Hon. John K. Henry. C. L. Wiggins and Neil McMillan, partners under the firm,name of Wiggins & McMillan, commenced an action off •detinue in the Circuit Court of Escambia county, against Henry Morningstar, to recover “twenty-six pieces of square pine timber.” The defendant pleaded the general issue.

Tried before the Hon. W. B. Wood. Jerry Sullivan, the administrator of Mary Hughes, brought suit to the fall term 1875, of the Circuit Court of Jefferson county, against the South and North Alabama Railroad Company, to recover damages for the death of Mary Hughes, caused by an act of the corporation.

Heard before the Hon. Himiosco Atjstill. Martha Jane Allen, a married woman, by her next friend, Hassan N. Allen, filed her bill of complaint in the Chancery Court of Montgomery county, against William Taylor, Samuel D. Hubbard, Jr., Mary T. Hubbard, Charles R. Hubbard and Caroline Gilmer, for the purpose of setting aside and vacating the conveyances of the real estate therein described.

<p> Mandanms. </p> <p>1. On a change of venue, the court must select the county.—It concerns the public as well as individuals that all trials for offences shall be fair and impartial. On an application for a change of venue, the court must decide what is the nearest county free from objection.</p>

Tried before the Hon John K. Henry. William- W. Wilkinson instituted in the Circuit Court of Butler county an action of detinue against Ann Ketler to recover two bales of cotton and one hundred bushels of corn. The defendant pleaded the general issue, with leave to give in evidence any matter that might be specially pleaded.

Heard before the Hon. HüRIOSCO Austill. The facts are contained in the opinion. 1. It is admitted by our own courts that a mortgagee may acquire and enforce against mortgaged premises a judgment lien for a distinct demand.—14 Ala. 483. And when such lien is prior to mortgage, it vests in the purchaser the whole title, subject to redemption.—27 Ala. 197; 37 Ala. 354.

Tried before the Hon. John K. Henry. The facts sufficiently appear in the opinion. 1. The main question presented is, whether the defendant had the right to plead, and prove that he had no notice of the suit in Florida, and. that he never appeared in person or by attorney, and that the persons pretending to act for him as attorneys in Florida had no authority to appear for him. It is admitted that the decisions in the State courts on this subject are contradictory.

Tried before the lion John K. Henry. The facts are contained in the opinion. 1.

Heard before the Hon. Hraiosco Austill. In 1858, Haley Hutchinson, a resident citizen of Lowndes county, in the State of Alabama, died. He left “ a large property, both real and personal;” but left neither a widow nor children. Soon after his death, Montgomery S. Relfe and William R. Powell obtained letters of administration from the Probate Court of Lowndes county, and administered upon his estate.

Tried before the Hon. John A. Minnis. The facts are contained in the opinion. 1. A bond which is taken without authority of law is void.—6 Port. 335; 6 Ala. 128; 14 Ala. 23; 4 Ala. 558 ; 31 Ala. 76. Bonds taken by civil officers when not authorized or required by law, unless based on sufficient consideration, are void, both as statutory and common law bonds.—1 Brick. Dig. p. 309, § 46. 2.

Tried before the Hon. John Henderson. James Montgomery brought suit on the 16th day of April, 1866, in the Circuit Court of Talladega county, against Arthur Bingham and Richard Hillsman, on a promissory note. At the fall term, 1867, of the said court, a judgment was entered against the defendants in favor of the plaintiff.

Tried before the Hon. James Q,. Smith. Mildred L. Tarver, Sarah A. Boyd, a married woman, Hickson F. Tarver, and Francis M. Tarver, a minor, by his next friend, Mildred L. Tarver, brought suit in the Circuit Court of Montgomery county against Mary Marks, to recover a lot of land situated in the city of Montgomery.

Tried before the Hon. P. O. HARPER. The facts are contained in the opinion. 1. The court erred in permitting, against the objection of the plaintiff, this question to be asked: “ How much did Keyser owe you in those transactions, before the partnership was created ?” and permitted the witness, Still, to answer, “ from eight hundred to one thousand dollars.” This was clearly irrelevant,—1 Brick. Dig. p. 780 § 100—and must reverse the judgment. 2. The charge was erroneous.

Tried before the Hon. W. L. Whitlock. This suit was begun by James Hall, at the fall term, 1876, of the Circuit Court of Etowah county, to recover damages for the breach of an attachment bond made by Mary Grady, Elizabeth Grady, J. C. Abney and A. J. Blair.

<p>Appeal from the Chancery Court of Lowndes,</p> <p>Heard before the Hon. IÍURIOSCO AuSTILL,</p> <p>The facts are contained in the opinion.</p>

Heard before the Hon. HUPIOSCO Austill. William Hall, Dorion Hall, Arthur B. Hall, and Elizabeth Anderson Hall, minors, filed a bill of… Held: shall arrive at twenty-one years of age, or shall marry, the said trustee shall pay to them, or either of them, their equal share of the rents and profits that shall have then accrued. “ Whenever the youngest of said children of my said son William B. Hall, shall arrive at twenty-one years of age (who shall take under this deed),…

Tried before the Hon. John Henderson. At the fall term, 1876, of the Circuit Court of Talladega county, the plaintiff, Andrew J. Street, sued Samuel C. Ivelley, E. B. Nelson and Henry Clarady, partners under the name and style of S. C. Kelley & Co., for the value of goods,, wares and merchandise, sold by him to the defendants. They pleaded non-assumpsit, and seven special pleas. To the special pleas, the plaintiff demurred. But the demurrer was overruled by the court.

<p> A Settlement of Partnership Accounts. </p> <p>1. The entries in the books of a partnership are presumed to be correct. Tiie books of a commercial partnership, and the entries therein, when all the members have free access to them, are evidence for and against the several partners in settling the partnership accounts. The entries are presumed to be correct until the contrary is shown.</p> <p>2. Books of partnership are evidence for and against the partners.—In a suit for the settlement of partnership accounts, the register on a reference, should receive such books as evidence for and against all the partners.</p> <p>3. Books produced at the instance of complainant, are evidence against Mm.—When a bill requires a defendant to produce books and papers in his possession, for the purposes of an account, on production, they become evidence against the complainant.</p>

Tried before the Hon. C. AY. Buckley. The facts are stated in the opinion. 1. The appellant has no equity. The decree rendered in October, 1867, is conclusive against both Flinn and Thomas B. Carter.—41 Ala. 203; 53 Ala. 615. The latter case is directly in point. The fact that Thomas B. Carter was insolvent at the time of the decree, although Flinn did not know of his insolvency, gives him no equity.—4 Ala. 693 ; 56 Ala. 393. 2.

Heard before the Hon. N. S. Graham. The facts are stated in the opinion. 1. This is a bill to enforce a vendor’s lien. The answer of the respondent, in the nature of a cross-bill, shows his knowledge at the time of his purchase of existing incumbrances on the land, and in his deposition he admits notice of defects in the title of the vendor before the sale was completed. The respondent is not entitled to the relief asked.—3 Stew. 233; 8 Ala. 373; 7 Ala. 71. 2.

Tried before the Hon. James Q,. Smith. Joseph T. Hearne filed a petition in the Circuit Court of Lowndes county, praying that a writ of certiorari be issued to the Court of County Commissioners of the said county, requiring it to certify the record of its proceedings “in the matter of the change of route of the public road, leading from Lowndesboro’ to the Montgomery and Benton road, and that all action on the decree for the change of the said road be suspended.” The record…

Tried before the Hon. Hueiosco Austill. ■ The facts are stated in the opinion. By an act of Congress of September 28th, 1850, a grant was made to Alabama, as to the other states, of the swamp lands of a certain description, within her limits, now known as the “ swamp and overflowed lands;” and afterwards certain rules and regulations were established for the selection of such lands by agents of the State, and obtaining title therefor, from the United States.

Tried before the Hon. W. L. WHITLOCK. The plaintiff, Samuel Yeatman, brought suit to the fall term, 1872, of the Circuit Court of Calhoun county, against the defendant, George E. Mattison, to recover a sum of money due on a promissory note made by the defendant.

Heard before the Hou. Charles Turner. Joseph L. Hall and William Lee, the husband and trustee of Louisa B. Lee, filed their bill of complaint in the Chancery Court of Autauga county, against Joseph Abraham, Isaac Abraham, and William Nunn, to enforce the landlord’s lien. The complainants allege that they are the owners of a tract of land in Autauga county known as the “ Hall Place,” and rented the same to George Beese, for the year 1873, for •one bale of cotton.

Tried before the Hon. John A. Minnis. This suit was brought by Edwin H. Clanton, at the February term, 1877, of the City Court of Montgomery, against the Mobile and Montgomery Railway Company, to recover wages earned by the plaintiff as a conductor of one of its freight trains.

Heard before the Hon. Neil S. Graham. Taul Bradford, James B. Martin and W. H. Isbell formed a partnership for the practice of law, under the name and style of Bradford, Martin & Isbell. They were employed as lawyers by one William H. Jenkins to defend him, indicted for murder in the Circuit Court of Clay county, in this State.

Heard before the Hon. HuRlOSCO Attsttll. Thomas B. Hawley, a resident citizen of the State of New 'York, filed a bill of complaint in the Chancery Court of Montgomery county, against J. DuBose Bibb, to foreclose a mortgage executed by Bibb and E. G. Bibb, his wife, to E. H. Morrison & Co. The mortgage was made to secure a bill of exchange for five thousand three hundred and twenty dollars, dated on the 23d of November, 1872, and payable on the first day of June, 1873, to E.…

Tried before the Hon. James Q. Smith. At the spring term, 1875, of the Circuit Court of Montgomery county, Louis Shulman, Louis Goetter and David Weil, partners under the firm name and style of Shulman,.

<p> Practice. </p> <p>1. It may be presumed from, the recitals of a judgment entry that the parties were in court.—Although the transcript contains neither summons, complaint nor plea, yet if the judgment entry recites that the parties came by attorneys; that issues joined were submitted to a jury; that they returned a verdict upon which a judgment was pronounced, it must beheld that the' parties were in court by proper service, or voluntary appearance; that a complaint containing a substantial cause of action was filed, and that issues were joined thereon. „</p> <p>2. An amendment will not be presumed, because leave to amend was granted. In the absence of anything of record to show that an amendment was made, it can not be presumed that it was made, from the mere fact that leave was given to amend.</p>

Heard before the Hon. Hukiosco Austill. Lillie M. Bowden, an infant, filed by her next friend, Jesse Bowden, a bill of complaint in the Chancery Court of Butler county, to correct the errors committed by the Court of Probate of the said county, in the settlement of her guardian. The bill alleges that Lillie M. Bowden is the daughter of Bennett Bowden, who is dead; and that she inherited from her father both real and personal property.

Tried before the Hon. James Q,. Smith. The facts are contained in the opinion. 1. The proper construction of the law, giving a lien upon crops for advances, requires that the particular crop should be specified, so as to give notice to the world of the lien upon it, and the extent of the incumbrance.

<p>Appeal from the Chancery Court of Talladega.</p> <p>Heard before the Hon. Neil S. Gbaiiam.</p> <p>The facts are contained in the opinion.</p>

Heard before the Hon. Charles Turner. The facts are contained in the opinion. 1. It is a general rule, when a statute creates a liability unknown to the law and provides a remedy, the remedy thus provided is exclusive. But there is an exception to the rule.

Heard before the Hon. Charles Turner. The facts are contained in the opinion. 1. The appellants were never divested of the title to the land in controversy. It appears from the petition itself that the allegation that the “ land could not be equitably divided among the heirs,” was unmeaning and nugatory. At the time the petition was filed there was only one' heir'— as appears from its face—and, therefore, the court could not acquire jurisdiction.

Tried before the Hon. James Q. Smith. The facts are contained in the opinion. Appellant proposed by oral testimony offered and excluded, and also by the record evidence offered and excluded; to show that the credit which •was allowed to him in his settlement of the administration of Watson Elinn was on account of the purchase-money •due him for the land. This testimeny ought to have been admitted.—1 Brick. Dig. 809, § 81; 16 Ala. 664; ib. 543—32; ib. 375-36; ib. 525-1.

Tried before the Hon. Lewis 'Wyeth. The plaintiff, William N. Hammock, brought suit before a justice of the peace, in DeKalb county, to recover damages from the Alabama and Chattanooga Bailroad Company for killing a cow. A judgment for the sum of twenty-five dollars was rendered against the defendant on the fourth day of February, 1871.

Tried before the Hon. James Q,. Smith. Jesse Ellington commenced this action at the spring term, 1876, of the Circuit Court of Lowndes county, against McCormick Pruitt, to recover damages for injuries done by the trespass of the defendant’s mules and horses upon the crop of the plaintiff.

Tried before the Hon. John K. Henry. This action was brought by Alexander McKellar in the Circuit Court of Butler county, against the Mobile and Montgomery Railway Company, to recover damages for killing a coav.

Heard before the Hon. Adam C. Felder. The appellant, Sallie G. Thorington, owned a large amount of the bank-bills issued by the Mechanics’ Bank, a corporation chartered by the State of Georgia, and doing business in. the city of Augusta. To collect the debt due her, she “sued out” a writ of attachment, which was levied on land situated in the county, and State of Alabama, and belonging to the-Mechanics’ Bank.

Tried before the Hon. John K. Henry. This suit was begun by Sarah F. Blakely, as administratrix of George Blakely, in the Circuit Court of Conecuh county, against the Mobile and Montgomery Railway Company, to recover damages for the death of George Blakely, caused by a train of the corporation.

<p>Appeal from the Circuit Court of Lowndes.</p> <p>Tried before the Hon. James Q,. Smith.</p> <p>The facts appear in the opinion.</p>

Beard before tbe Hon. Huriosco Austill. The facts are contained in the opinion. 1. The complainant was a judgment creditor of Munchus, and his lien was not impaired by the bankruptcy of his debtor.— Qrowe v.Reid, 57 Ala. 281. 2. Bj the assignee in bankruptcy ever had any right to the land he failed to enforce it within two years of the bankruptcy, and thereby abandoned his right.—19 Ala. 454; Bankr. Law 1367, § 2. 3.

Tried before the Hon. John D. Cunningham. This was a motion made by John Wilson, in the City Court of Montgomery, against Paul Strobach and the sureties on his official bond, to recover a judgment of seven hundred and ninety-four dollars and costs, for the failure of the said Strobach, as sheriff of Montgomery county, to make the money on an execution issued on a judgment obtained by the plaintiff against B. W. Ramsey, at the February term, 1874, of the City Court of…

Tried before the Hon. JOHN K. Henky. The plaintiffs, Rosanna Smith, James M. Roberts, and others, brought suit against Edna R. Cooper, George M. Craig, and others, defendants, in the Circuit Court of Butler county, to recover the land described in the complaint, as follows : “ The south-west quarter of section thirty-one, township ten, and range fifteen.” The defendants pleaded the general issue.

Heard before the Hon. Hubjosco Austill. Ephriam A. Brevard, a resident citizen of the State of North Carolina, made a will by which he appointed Alexander F. Brevard and Hubert A. Brevard to be his executors, and died. The executors so appointed, duly qualified and .assumed the execution of the trust. The testator owned property in the State of'Alabama.

Tried before the Hon. P. O. HARPER. Young S. Hirschfelder commenced an action of detinue in the Circuit Court of Escambia county, against A. J. Robinson, to recover one hundred sticks of hewn timber. The defendant pleaded the general issue. The plaintiff introduced as evidence a written agreement made on the 27th day of July, 1871, with one J. Q,. Hammons.

Tried before the lion. James Q. Smith. Jackson Morgan brought an action of detinue in the Circuit Court of Montgomery against A. J. Haws, to recover '“ a bay horse, with the value of the use thereof during the detention from the 15th day of April, 1877.” The defendant pleaded the general issue. On the trial, the only evidence of the value of the horse was that of the plaintiff. He testified that the “ horse was worth eighty dollars.

Tried before the Hon. John A. Minnis. This action was brought by John Grooms against Allen Hannon, to recover from him two hundred dollars for failing or refusing to cancel a mortgage which had been fully satisfied. The plaintiff executed a mortgage on the first day of September, 1865, to John H. Caffey. The mortgage was •duly recorded in the office of the judge of probate of Montgomery county, and was afterwards transferred to the ■defendant.

Tried before the Hon. J. ~V. McDuffie. J. E. Bruner, administrator “cum testamento annexo of Charity Garrett, applied to the Court of Probate of Lowndes county for an order to sell the land, described in the petition, for the purpose of paying the debts of the testatrix.

Tried before the Hon. JAMES Q,. SMITH. Joseph Curbow and Lyman A. Hitchcock, as executors of the will of H. W. Hitchcock, deceased, brought suit against William T. Hatchett, to recover the value of a marble slab placed over the grave of William H. Ogbourne. The defendant pleaded, in short, by consent: “ 1. General issue. “ 2.

Airs. Sarah S. Watson leased to Airs. Hannah S. Abrams the Alontgomery Hall and its appurtenances, situated in the city of Alontgomery, for a term of two years, beginning on. the first day of October, 1870. The lease included the “ eastern half of the vacant lot or lots back of the said hotel.” The premises were to be used for a hotel or.boarding-house.

Tried before the Hon. J. V. McDuffie. The facts are stated in the opinion. 1. It is Avell settled that the Probate Court had no poAver to vacate and set aside an order after the adjournment of the term, unless the order' and decree Avere void.—40 Ala. 396; 14 Ala. 648; 18 Ala. 438; 16 Ala. 56. 2.. The order of the 15th of October, 1876, is not void.

Heard before the Hon. Huriosco AugTiLL. D. C. Mitchell and Mrs. Mary F. Leak intermarried in December, 1874, and on the 15th of March, 1876, they filed a bill of complaint in the Chancery Court of Montgomery county against E. Blum & Co., to enjoin them from foreclosing a mortgage executed by Mary F. Leak on the second day of February, 1870. The other facts appear in the opinion.

Tried before the Hon. James Q,. Smith. ■ This was an action commenced by Thomas Fitzsimmons,, at the June term, 1875, of the Circuit Court of Montgomery county, against Charles W. Buckley, to recover damages for the unlawful issue of a marriage license to celebrate the rites of matrimony between Sabe Whatley and Mary E. Fitzsimmons, a minor. By consent, a demurrer to the first count-of the complaint was sustained.

Heard before the Hon. N. S. Geaiiam. On the 15th day of February, 1859, one Andrew Poore was appointed guardian of the estates and persons of two minors, named, respectively, William H. Shropshire and John B. Shropshire. On the same day he executed a bond to the judge of probate of Cherokee county in the sum of six thousand dollars, conditioned for the faithful performance of the duties required of him by law as such guardian.

Tried before the Hon. Walter H. Crenshaw. At the February term, 1874, of the Criminal Court of .Butler county, the following motion was heard and determined, viz.: “ To Mrs. Nancy T. Cheatham, wife of Peter PL.

Tried before the Hon. JOHN A. MlNNlS. A board for the assessment of property of railroad companies was established by an act of the general assembly of Alabama, approved February 2d, 1877.—Sec 383 of the Code of 1876. It consisted of “the Governor of the State, the Secretary of the State, Auditor of the State and the Treasurer of the State;” a majority of whom constituted a quorum.

Heard before the Hori. Huexosco Atjstill. The bill of the complainant, Samuel O. Lassiter, shows that he was the son-in-law of William M. Stallworth, who ■died intestate at his home in Conecuh county in March, 1877. During the life of the decedent, the complainant executed to him two mortgages—one on or about the 15th day of May, 1875, upon the land therein described, and also upon his entire crop of corn and cotton produced on the land.

AppExVL from the Probate Court of Talladega. Tried before the Hon. TV. H. TiiORNTON. On the 30th day of November, 1876, John Henderson, administrator de bonis non, of the estate of Daniel TVallis, late of Talladega county, deceased, obtained a decree in the Court of Probate of said county against Albert TV. Plowman, a former administrator of the estate of said Daniel TVallis, deceased, for the snm of fifteen hundred and fifty-six 40-100 dollars.

Tried before the Hon. JonN Henderson. The mercantile firm of Lewy & Lewy brought suit before a justice of the peace in Coosa county on an account against Nathan Hines. A judgment was rendered in favor of the defendant for the sum of twenty 97-100 dollars. The plaintiffs appealed to the Circuit Court of the said county, and executed an appeal bond in the usual form, with Jesse L. Ruffin as one of their sureties.

Tried-before the Hon. James Q,. Smith. The following statement of facts in writing was admitted to be true by both parties, and by consent-, was read to the jury as evidence in the case : “That Shulman, Goetter & Weil, the plaintiffs, recovered a judgment at the June term of the Circuit Court of Montgomery, A. D., 1875, on a contract made after the 23d day of May, 1873, which judgment was for three hundred and thirty-one 62-100 dollars, besides costs; that execution was…

Tried before the Hon. George H. Craig. This suit was commenced at the fall term, 1854, of the Circuit Court of Talladega county, by Graham Beavers, against John T. Hardie & Co., for an alleged breach of contract. The plaintiff having died, Major W. Beavers was appointed his administrator, and the cause was prosecuted by him. The facts are contained in the opinion. 1. The charge asked by the plaintiff should have been given.—Smart v. Sanders, 54 Eng. Com.

Tried before the Hon. Wax. L. Wl-IITLOCK. This action was brought against the defendant, sheriff of Etowah county, and the sureties on his official bond, for neglect of duty. It was shown on the trial that one W. P. Hollingsworth brought an action of detinue on the 9th of April, 1875, against N. W. Gay, the plaintiff in this suit, for the recovery of a bay mare. On the summons and complaint was this endorsement: “Came to hand-9th October, 1875—T. J'.

Heard before the Hon. B. B. McCraw. Taul Bradford and James B. Martin were partners in the .practice of law; and while so engaged, they were employed, as lawyers by A. Z. Dickinson in the prosecution of certain ■suits in his favor against Thomas Henderson, administrator de bonis non, with the will annexed, of Shadrack Dickinson, deceased.

Heard before the Hon. B. B. McCkA'VV. William Frieze and B. P. Autrey made a contract in January, 1871, by which, for the purpose of cultivating a farm together during the year, it was agreed that Autrey should furnish the land; one mule to be used in its cultivation, and forage for the mule; and forage for a mule or horse of Frieze for its support during one-half the time it was employed in making the crop; and Autrey also undertook to pay one-half the hire of laborers…

Heard before the Hon. B. B. McCraw. The record shows that in 1864 Thomas J. Cox and Emma O. Nuckolls intermarried. In 1867 Nathaniel A. Nuckolls, the father of Mrs. Emma O. Cox, purchased land, situated in Etowah county, of one J. E. Berry, and paid him, on the delivery of the deed of conveyance, the sum of six thousand dollars. This was the purchase money.

Tried before the Hon. W. L. Whitlock. James Dothard and William Dothard began a suit against -James M. Shield, in the Circuit Court of Calhoun county, ■on the 26th day of October, 1876. The writ of attachment was based on the following affidavit: “The State of Alabama, Calhoun county.

Tried before the Hon. William S. Mudd. The facts are stated in the opinion. 1. The fourth plea is, in substance and in fact, a plea in abatement, and it should have been verified by oath.—1 Chitty PI. 462-3. The plaintiffs might have treated it as a nullity, and would not thereby have waived anything.—16 Johns. 307; 1 Chitty, 463. 2. Tbe plea in abatement sets up tbe fact that Joseph H. Jourolman, one of tbe plaintiffs, has brought suit in tlie name of J. H. Jourolman.

Tried before the Hon. James L. Leath. On the 21st day of April, 1875, T>.

Tried before the Hon. John Henderson. The plaintiff, Elias J. Seale, brought suit before a justice of the peace in Shelby county, against the South and North Alabama Bailroad Company, to recover damages for cattle killed by the corporation. A judgment was rendered against the defendant, and it appealed to the next term of the Circuit Court.

Heard before the Hon. Neil S. Graham. On the 29th day of December, 1857, Fleming Freeman sold and executed to Joseph B. Bibb a deed of conveyance of twelve hundred and eighty-five acres of land situated in the county of Montgomery. The deed contained the usual covenants of warranty. The purchaser entered upon and' took possession of the premises, for which he paid nineteen thousand two hundred and seventy-five dollars.

Tried before the Hon. John Henderson. The plaintiff, Thomas H. Harris, brought suit to the fall term, 1869, of the Circuit Court of Talladega county, against William McPherson and Moses Hamilton, upon a promissory note. The defendants pleaded in short, by consent, the general issue, with leave to give in evidence any matter that might be specially pleaded. Issue being joined, the plaintiff read in evidence the following note: §600.00. Talladega, October 30th, 1867.

Tried before the Hon. John Henderson. The facts are stated in the opinion. 1. An appellant, wlio has duly assigned errors, has the legal right to have them examined, considered and decided by this court, whether he argues them or not. This right is given by law, and is not created by or dependent upon his argument.—52 Ala. 480.

Heard before the Hon. Charles Turner. In February, 1876, the complainant, Francis B. Boe, filed a bill of complaint in the Chancery Court of Jefferson county against Hosea M. Williams, Andrew J. Waldrop, Thomas Gore, E. A. Williams and Mary Truss, to enforce a vendor’s lien upon the following tract of land, to-wit: “The east half •of the south-east quarter of section thirteen, township seventeen, range two, west; also, a part of the east half of northeast quarter, section…

Before the Supreme Court. The facts are contained in the opinion. 1. The only important question in this case is as to the petitioners’ remedy by mandamus. The right to set-off judgments in the same court is a legal right.—Code, 1876, § 2993—and this must be done on motion. 2. If the order overruling the motion to set-off be a final judgment from which an appeal would lie, the remedy is not adequate.

Heard before the Hon. HüPiOSCO Austill. John A. Campbell filed in the Chancery Court of Montgomery a bill of complaint, praying for a writ of injunction against Philip Preiss, restraining him from selling land described in' a mortgage which had been assigned to him.

Tried before the Hon. John A. MlNNIS.' In accordance with “an act to more effectually secure the collection of rents in the city of Montgomery,” approved March 2nd, 1848, John B. Fuller, a justice of the peace of the county of Montgomery, at the instance of Jacob Abraham, issued a writ of attachment against John Egger. The writ was levied on silver and gold watches, clocks and show-cases. Thereupon the defendant filed his claim of exemption.

Heard before the Hon. N. S. Graham. A bill of complaint was filed in the Chancery Court of Etowah county, by B. B. Whorton, one of the executors of the last will and testament of William Whorton, for the' purpose of obtaining a construction of the will and instructions as to the proper execution of its various provisions.

Tried before the Hon. James Q,. Smith. This is a suit brought in the Circuit Court of Montgomery county by Nelson W. Perry, to recover the amount due on a bill of exchange drawn by William H. Johnston, William Johnston and W. W. Screws, the defendants.

Tried before the Hon. John S. Bentley. On the 16th day of November, 1877, William Pearson -.made to the Hon. John S. Bentley, judge of probate- of Coosa . county, the following application for a writ of ¡tabeas corpus, .viz.: “Your petitioner, William Pearson, respectfully represents to your Honor’, that at the fall term, 1877, of the Cir- . cuit Court of Coosa county, he was indicted and tried on an indictment for arson in the third degree.” (Here follows a ...copy of the…