Volume 60 — Alabama Reports

From the Circuit Court of Sumter. Tried before the Hon. Luther E. Smith.

From the Circuit Court of Sumter. Tried before the Hon. Luther B. Smith. The prisoner in this case, Ben Ferkins, was indicted and tried, jointly with one Csesar Clanton, fo'r tbe murder of Gilbert Roberts; was found guilty of murder in the first degree, and sentenced to imprisonment in tbe penitentiary for life, while said Clanton was acquitted.

Prom the Circuit Court of Hale. Tried before Hon. G-eo. H. Craig. Tbe prisoner in this case, Robert (or Barcus) Washington, was indicted for the murder of Beverly Willis, by shooting him with a pistol; was convicted of murder in the first degree, and sentenced to imprisonment in the penitentiary for life. On his trial, he reserved a bill of exceptions, which purports to set out all the evidence adduced.

<p> Indictment for Trespass after Warning. </p> <p>1. Trespass after warning; meaning of “premises." — The word “premises,” as used in the statute punishing a trespass after warning (Code of 1876, 4419), means any real estate for an entry on which a civil action might be maintained, and includes an inclosed pasture situated moro than a mile from the dwelling-house.</p>

From the Circuit Court of Marengo, on change of venue from Choctaw. Tried before the Hon. Luther R. Smith. The prisoner in this case, Brad Allen, was indicted for the murder of Frank Allen, his brother.

From the Circuit Court of Hale. Tried before the Hon. Geo. H. Craig.

From the Circuit Court .of Walker, on change of venue from Tuskaloosa. Tried before the Hon. Wi. S. Mudd. The prisoner in this case, John Dunn, was indicted in the Circuit Court of Tuskaloosa, at its November term, 1876, for the murder of Jasper N. Dunn.

From the Circuit Court of Greene. Tried before the Hon. Luther R. Smith. The indictment in this case contained several counts, charging the prisoner with burglary and grand larceny. There was a general verdict of “guilty as charged in the indictment,” and the court thereupon sentenced the defendant to imprisonment in the penitentiary for the term of two years, with an additional term to cover the costs.

From the Circuit Court of Sumter. Tried before the Hon. Luther R. Smith.

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

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

Prom the Circuit Court of Hale. Tried before the Hon. George H. Craig.

From: the Circuit Court of Sumter. Tried before the Hon. Luther R. Smith. The indictment in this case contained but a single count, which charged that the defendant, Charles Allen, “an overseer of a public road in said county, failed to discharge his duty as such overseer.” The defendant pleaded his infancy at the time of the appointment, in bar of the indictment; to which the State replied, that he accepted and acted under the appointment.

Erom the Circuit Court of Hale. Tried before the Hon. Geo. H. Craig. The defendant in this case was indicted, by the name of George Daniels, for a trespass on the premises of Sebert J ordan, “ after having been warned, within six months preceding, not to do so.” He stood mute when arraigned, and the court thereupon entered the plea of not guilty for him.

From the Circuit Court of Sumter. Tried before the Hon. Luther R. Smith.

From the Circuit Court of Sumter. Tried before the Hon. Luther E. Smith.

Erom the County Court of Madison. Tried before the Hon. Widliam Richardson. The indictment in this case was found by a grand jury of tbe Circuit Court, at its Spring term, 1877 ; and tbe case was transferred to tbe County Court, under the provisions of tbe act approved February 9,1877. — Session Acts 1876-7, p. 149.

Tried before tbe Hon. Louis Wyeth. This was a scire facias on a forfeited recognizance, or undertaking of bail,.entered into by Jefferson Callahan as principal, and by the other obligors as his sureties, by which they agreed to pay the State of Alabama five thousand dollars, “unless the said Jefferson Callahan appears at the next term of the Circuit Court to be held for said county of Blount, and from term to term thereafter until discharged by law, to answer the State of…

From the Circuit Court of Madison. Tried before the Hon. Louis Wyeth.

From the Circuit Court of Madison. Tried before tbe Hon. Louis Wyeth.

From the Circuit Court of Madison. Tried before the Hon. Louis Wyeth.

From tbe Circuit Court of Jackson. Tried before tbe Hon. Louis Wyeth. The indictment in this case charged the defendant with retailing spirituous liquors without a license.

Erom tbe Circuit Court of Colbert, ou change of venue from Lauderdale. Tried before the Hon. Wm. S. Mudd. The prisoner in this case, George W. Payne, was indicted for the murder of John Edward Smith. The indictment was found in the Circuit Court of Lauderdale, at its April term, 1874; and the trial was removed, on the application of the prisoner, at the same term, to Colbert county.

From the County Court of Madison. Tried before the Hon. William Richardson. The indictment in this case was found by a grand jury of the Circuit Court, and the case was transferred to the County Court, under the provisions of the act approved February 9, 1877, entitled “ An act to regulate the trial of misdemeanors in Madison county.” — Session Acts 1876-7, p. 149.

From the Circuit Court of Colbert. Tried before the Hon. W. B. Wood. The record in this ease is very defective, and the return to a certiorari, which was granted on motion of the Attorney-General, does not remedy the defects.

<p> Indictment for Keeping Baiody-IIouse, and for Vagrancy. </p> <p>1. Keeping bawdy-house, and vagrancy; sufficiency of indictment. — A count which charges that’the defendant “did keep a certain house of ill fame, then and there resorted to for the purpose of public prostitution and lewdness,” sufficiently charges the common-law offense of keeping a bawdy-house; and a count which charges that she “was a common prostitute, or the keeper of a house of prostitution, and had no honest employment, whereby to maintain herself,” sufficiently charges the statutory offense of vagrancy (Code of 1876, § 4218); but a count which simply charges that she “was a common prostitute, or the keeper of a house of prostitution,” without more, is not a sufficient charge of any offense,</p> <p>2. Verdict of guilty, under indictment containing good and bad counts. — When an indictment contains several counts, one of which is good, and there is no demurrer to the bad counts, a general verdict of guilty will be referred to the good count, and the conviction will be sustained.</p> <p>3. Keeping bawdy-house; what constitutes offense, and evidence of. — Under an indictment for keeping a bawdy-house, evidence oí the general reputation of the inmates of the house, but not of the house itself, is admissible for the prosecution; and it must bo shown that the defendant governed or managed the house, or assisted in its government and management: it is not enough to show that she resided in the house for the purposes of prostitution.</p> <p>4. Vagrancy as common prostitute, or keeper erf house of prostitution. — Under an indictment for vagrancy as a common prostitute, or keeper of a house of prostitution, having no honest employment whereby to maintain herself, evidence of the reputation of the house in which the defendant lived is not admissible for the prosecution; nor is the bad character of the defendant admissible, in the first instance, as a fact showing that she was a common prostitute; but it may be shown that she resided in a house kept for prostitution, and was there visited by lewd and disorderly persons, and that her associates were persons of ill repute; and these facts being proved, she may, in rebuttal, prove that her health and physical condition rendered prostitution improbable, if not impossible.</p>

From the County Court of Madison. Tried before the Hon. William Richardson. This prosecution was commenced in the Circuit Court, and was transferred to the County Court under the provisions of the act approved February 9,1877. — Session Acts, 1876-7, p. 149.

Tried before the Hon. Louis Wyeth. The record in this case shows that, on the 10th July, 1877, Louisa J. McAnally, a single woman, appeared before a justice of the peace of said county, and made oath that she was delivered of a bastard child in said county on the 30th May, 1877, and that Frank A. Hanna was the father of said child; that the justice thereupon issued his warrant for the arrest of said Hanna, under which be was arrested by a constable ; that on the 20th July,…

From the Circuit Court of Marshall. Tried before the Hon. Louis Wyeth. The indictment in this case contained three counts.

Tried before the Hon. J. B. Moore, as special judge, selected by the parties on account of the incompetency of Horn W. B. Wood, presiding judge of the circuit.

Heard before tbe Hon. A. W. Dillard. Tbe bill in tbis cage was filed on the 25th March, 1873, by Emmett C. Hutton and Mary E. Hutton, tbe latter suing as administratrix of the estate of her deceased husband, Aquilla D. Hutton, who was a brother of said Emmett C.; against David H. Williams, as guardian and administrator of the estate of William B. Hutton, deceased, who was a brother of said Emmett C. and Aquilla D.; and also against Eugenia Williams, the wife of said David…

Tried before tbe Hon. George H- Craig. ’ This action was brought by Carlisle & Humphries, suing as partners, and revived in the name of H. G. Humphries as surviving partner, against James W. Locke and William H. Locke ; was commenced on the 31st January, 1872, and was founded on the defendants’ promissory note for $1,170.38, dated Mobile, January 1st, 1870, payable on the 1st January, 1871, to the order of said Carlisle & Humphries, negotiable and payable at the Bank of…

Heard before the Hon. A. W. Dillard. The bill in this case was filed on the 31st July, 1872, by Stephens Groom and others, judgment creditors of Matthew A. Marshall, against the said Matthew A. Marshall, and James B. Marshall and Mrs. Augusta M. Gere, who were his son and daughter ; and sought to set aside three deeds, by which said Matthew A. Marshall conveyed substantially all his property to his said son and daughter, on- the ground that they were executed with intent to…

Heard before tbe Hon. A. W. Dillard. Tbe bill in this case was filed on tbe 22d March, 1873, by Emmett O. Hutton, against David H. Williams, his late guardian, and one Whitfield Walker, as the debtor of said Williams.

Heard before the Hon.1 Charles Turner. The bill in this case was filed on the 18th February, 1874, by Alphonse Stollenwerck, against John Nelson, Jabez O. líelscm, George T. Nelson, and William G. Miller; and sought to foreclose two mortgages, one executed by said George T. Nelson, and the other by said John Nelson and Jabez O. Nelson, and to have the property conveyed sold for the payment of a promissory note, held and claimed by the complainant, which was one of the debts…

Heard before the Hon. A. W. Dillard. The bill in this case was filed on the 29th June, 1874, by E. T. DeGraffenreid, against James Jones; and sought principally to establish and secure the complainant’s right to a homestead exemption in certain lands, of which he had possession, against the claim of the defendant as a purchaser at sheriff’s sale under execution against him.

Heard before tbe Hon. W. A. Dillard. Tbe bill in tbis case was filed on tbe 21st March, 1871, by John N. Bain, against Baleigh Brewer, and… Held: that the award was uncertain, indefinite, unconscionable, and must have embraced matters which were not included in the submission; particularly a claim by the defendant, for damages to his plantation during the years 1869-70, by the decay of houses and fences, the filling up of ditches, etc. He therefore set aside the award, and…

Heard before the Hon. A. W. Dillard. The bill in this case was filed on the 26th June, 1871, by John Parker, since deceased, and revived in the name of his executor on his death pending the suit, against Mrs. Laura A. M. Lide and her husband, Mrs. Addie B. White and her husband, and Mrs. Julia A. Thomas and her husband.

Heard before the Hon. A. WÍ Dillard. The original bill in this case was filed on the 26th April, 1871, by Pleasant M. Tindal (or Tindel) and others, children and grandchildren of Harvey Tindal and Sarah E., his wife, against William B. Drake and others; and sought, principally, a partition of certain lands, which the complainants claimed, and which were in the possession of said Drake, and an account of the rents and profits while in his possession.

Heard before tbe Hon. Luther B. Smith. Tbis action was brought by Mary S. Glover and Francis L. Constantine, against Bradley H. Bidgway and Mary E. Bidgway, bis wife, to recover tbe possession of a certain tract of land, together with damages for its detention; and was commenced on tbe 7th March, 1874.

Tried before tbe Hon. Luther R. Smith. ■This was a motion by William W. Henry and J. W. Smith, as assignees of Jacobson & Co., bankrupts, or trustees elected by the creditors of said bankrupts, to dissolve an' attachment sued out by Sims, Harrison & Co. against said Jacobson & Co., on the ground that it was sued out within four months before the commencement of the proceedings in bankruptcy.

Heard before the Hon. A. W. Dillard. These were three cases, which were submitted, argued, and decided together.

Heard before tbe Hon. A. W. Dillard. Tbe original bill in this case was filed on tbe 7tb September, 1871, by John C. Sbelton, as a… Held: on final hearing on pleadings and proof, that the complainant was not entitled to any relief against Duncan Dew’s estate, or the lands purchased by him at the executor’s sale, because the purchase-money went in extinguishment of the debts of the estate to an equal amount, and therefore the estate was not injured by the transactions…

Tried before tbe Hon. Geo. H. Cbaig. This action was brought by B. E. Hall, against William H. Lavender, and was commenced on tbe 28th January, 1874.

Heard before tbe Hon..Charles Turner. The original hill in this case was filed on the 7th April, 1875, by John F. Warren, against Joseph W. Taylor and Mrs. Mary O. Benagh; and sought a settlement of a partnership which had existed between the complainant and said Taylor, the foreclosure of a mortgage which said Taylor had given to complainant on his interest in the partnership effects, and the adjustment of the conflicting liens of complainant’s mortgage and a mortgage owned…

Heard before the Hon. A. W. Hillard. The bill in this case was filed on the 6th July, 1870, by William O. Monroe, against William M.… Held: on final hearing on pleadings and proof, that the complainant could not repudiate the payments made by Hamilton to Harhness, nor complain of the transactions between Sims, Harrison & Co. and Hamilton; and on the statement of the account by the register, showing that the complainant had received more of the cotton than he was entitled…

In tbe matter of tbe final settlement by A. G. Smith, as administrator of tbe estate of E. W. Smith, deceased, of bis intestate’s accounts and vouchers as administrator of tbe estate of Washington Bryant, deceased. On said settlement, said administrator claimed a credit, “ as per voucher No. 1 of bis account,” in these words : “ May 4,1874.

Heard, before the Hon. Thomas B. Wetmore, as special chancellor, selected by the parties, on account of the incompetency of Chancellor A. W. Dillard, who was related to one of the parties.

Clair. Heard before the Hon. Wií. L. Whitlock. This action was brought by William R. Pressley, against Amos L. Posey and James Williams, to recover the possession of a certain tract of land, “ known as the Philemon Bradford place;” and was commenced, before a justice of the peace, on the 31st August, 1875.

Tried before the Hon. Louis Wyeth. This action was brought by the Northern Bank of Alabama, a corporation chartered under the laws of this State, against Joseph C. Bradley; was commenced on the 18th August, 1871; and was founded on a bill of exchange for $8,550, drawn by Jordan & Moore, at Maysville, Alabama, October 13, I860, on Bradley, Wilson & Co., New Orleans, Louisiana, payable ninety days after date, to the order of Daniel B. Turner, and indorsed by said Turner and…

From the Circuit Court of Lawrence. Tried before the Hon. W. B. Wood. This action was brought by H. B. Matthews and Abbie A. Matthews, against B. O. Masterson, and was commenced on the 11th March, 1875.

Application by petition, by 'William Wallace, for a writ of mojndamus to the Circuit Court of Maclison, Hon. L. Wxeth presiding, to compel that court to grant a rehearing, or new trial, in a certain cause therein lately pending, wherein one James Henry was plaintiff, and said petitioner was defendant. The material facts are stated in the opinion of the court.

<p>Appeal from the Circuit Court of Madison.</p> <p>Tried before the Hon. Lotus Wveth.</p> <p>cited 1 Chitty’s Pleadings, 256; Reid & Go. v. McLeod, 20 Ala. 576; Lanford, v. Patton, L)anegan & Go., 44 Ala. 584; Rhea v. Raidings, 3 Or. C. C. 256; 1 Penn. 75, 137; 5 Halst. 295; Bartlett v. Cromer, 17 Johns. 439; 8 Ind. 451; 2 Stew. 506 ; 9 Pick. 546.</p> <p>The statute dispenses with proof of the names of persons composing the partnership which is plaintiff, unless they are denied by plea verified by affidavit. — Code of 1876, § 3038. In pleading, it is a general rule, that it is not necessary to allege what it is not necessary to prove.</p>

Tried before the Hon. W. B. Wood. On the 24th January, 1877, an act of tbe legislature was approved by tbe governor, entitled “An act to authorize the people of Franklin county to vote on tbe question of removing the county-seat of said county, and to permanently locate the same,” which contained eight sections, as follows : “ Section 1.

Heard before the Hon. A. W. Dillard. The bill in this case was filed on the 31st January, 1876, by John Nix, against William G. Bizzell, and sought to enforce a vendor’s lien for the unpaid purchase-money of land. The land was sold and conveyed by the complainant, on the 15th March, 1859, to William H. Bizzell, who was the father of said William G., the defendant in this suit.

Tried before the Hon. John Henderson. This action was brought by Mrs. Willie Gr, Winn, against A. W. Dillard and M. C. Dillard, his wife, to recover the possession of a tract of land; and was commenced on the 10th April, 1876.

Heard before the Hon. A. W. Uillakd. The bill in this case was filed on the 20th December, 1873, by John M. Johnson and his three sisters, F. A. Johnson, A. H. Johnson, and E. P. Johnson, against the persons composing the firm of Murphy, Agnew & Co., commission-merchants in the city of Mobile; and sought to enjoin a sale of certain lands under a power contained in a mortgage, and to have the mortgage declared null and void, and cancelled under the decree of the court, as a…

Tried before the Hon. Wm. S. Mudd. This action was brought by the appellees, suing as partners, against Thomas B. Bickley, to recover two mules, together with damages for their detention; and was commenced on the 18th November, 1874.

Heard before the Hon. A. W. Dillard. The bill in this case was filed on the 12th January, 1874, by Isaac W. Horn and Elizabeth McMillan, judgment creditors of William C. Wiatt, against the said William C. Wiatt and his son, John F. Wiatt; and sought to set aside a conveyance of his property by said William to said John F. Wiatt, on the ground that it was intended by both of them to defraud, hinder, and delay the creditors of the grantor, and to subject the property to the…

Tried before the Hon. George H. Craig. This action was brought by James W. McCrary, John E. Love, and. Held: in Miller v. Marx, and other cases above referred to, that the changes made by the act of 1873 “ operate on all homestead exemptions which have accrued since April 23, 1873 which is decisive of this case.

Tried before the Hon. Luther B. Smith. This action was brought by S. & A. Brown, suing as partners, against H. B. Leitch; was commenced on the 24th February, 1876; and was founded on a promissory note, signed by the defendant, in these words : “ Livingston, Ala., April 8, 1874.

Heard before the Hon. A. W. Dillard. The bill in this case was filed on the 10th June, 1875, by B. J. Hughes, against Charles S. Harkins, as executor of the last will and testament of Archibald Hood, deceased, to compel the payment by said executor, out of the assets of said estate, of a debt which the complainant claimed to hold against Mrs. Martha A. Hood, deceased, who was the widow of said testator, for care and attention during her last illness, amounting to $175.

Heard before the Hon. Charles Turner. The bill in this case was filed on the 29th January, 1873, by Mrs. Mary C. Benagh, against William A. Battle and wife, N. P. Marlowe and wife, and A. B. McEachin; and sought to establish a mortgage executed to the complainant by said W. A. Battle, to correct a mistake in the description of the property conveyed by it, to settle the equities between the complainant’s said mortgage and another mortgage on the same property in favor of Mrs.…

Tried before the Hon. Luther R. Smith. The facts of this case were thus stated in the opinion of the court, as delivered by Brickell, C. J.:— “ William E. Pierce, having been appointed register of the Chancery Court of Greene county, on the 22d day of July, 1872, executed a bond, payable and with condition as required by law, for the faithful performance of his duties as such register, in which the appellants and others joined as his sureties.

Heard before the Hon. A. W. Dillard. The bill in this case was filed on the 21st August, 1874, by Alexander S. Wilson and others, children of Mary A. and George Wilson, against William A. C. Jones, said George Wilson, Samuel Brown, and Adolphe Brown; and sought to establish and enforce a trust in a certain house and lot, which said W. A. C. Jones claimed as his own, and which was in the possession of said Samuel and Adolphe Brown as his tenants, and to make said defendants…

In the matter of the petition of Malone & Foote, as partners, asking the partition of certain lands, which were particularly described, and which were alleged to be situated partly in Marengo and partly in Choctaw county, between themselves and Herbert H. Stimpson. The petition was filed on the 10th April, 1876-J and was under oath.

George H. Craig. This case has been before this court on two former appeals, and may be found reported in 44 Ala. 661-8, and 51 Ala. 580-84; the judgment of the court below being each time reversed, and the cause remanded.

A. W. Dillard. The bill in this case was filed on the 2d September, 1872, by F. F. Lindsey, against B. F. Shaw, Elihu Cox, and others; and sought to quiet the complainant’s title to a certain tract of land, of which he was in possession under claim of title, and to enjoin the prosecution of two actions at law, brought by said Shaw and Cox respectively, each claiming a part of the land.

Tried before the Hon. Luther R. Smith. This was a motion by Joel W. Jones & Go., plaintiffs in execution, for a venditioni exponas to the sheriff, commanding him to sell certain personal property, on which he had levied an execution in their favor against Green B. Mobley, deceased; and also a motion on the part of the sheriff, for instructions in the matter.

The record does not show the name of the presiding judge. This action was brought by the appellants, suing as partners, against Philip B. Cabell; and was commenced by attachment, sued out on the ground of the defendant’s non-residence.

Tried before the Hon. Louis Wyeth. This action was brought by Artelissa Walker, against Asa Griffith, to recover two horses, together with damages for their detention ; and was commenced on the 26th February, 1877. The defendant pleaded, in abatement, that he was a resident citizen of Walker county at the commencement of the suit; and issue was joined on this plea.

Heard before the Hon. Charles Turner. Tbe original bill in this case was filed on tbe 17th December, 1875, by A. W. Dillard, against Mrs. Willie G. Winn; and sought a rescission of a contract made in August, 1872, by which, tbe defendant sold and conveyed a tract of laud to the complainant, A rescission of the contract was sought on the ground that the lands were very much infested with “ cocoa grass ” and “ wire grass,” which greatly impaired their value, and rendered their…

Tried before the Hon. Louis Wveth. This action was brought by John B. Tally, as the surviving administrator of the estate of William Bash, deceased, against Samuel McCrary, and revived, on his death pendente lite, against Thomas N. Allison, as his administrator; was commenced on the 15th August, 1872 ; and was founded on a bond, or promissory note under seal, for $1450,' — which was executed by Leroy McCrary, since deceased, and by said Samuel McCrary, and one George Bogers,…

Application by petition, by Mrs. Louisa W. Cresswell, for a mandamus to tbe Hon. A. W. Dillard, chancellor of the Western Chancery Division, presiding in the Chancery Court of Greene county, on the facts stated in the opinion of the court. cited Ansley v. Robinson, 16 Ala. 793; Bradford v. Barclay, 37 Ala. 453; Van Bylce v. The State, 22 Ala. 54; Watt v. Watt, 37 Ala- 547; Byrd v. Me Daniel, 26 Ala. 585 ; Ex parte Carroll, 50 Ala. 9 ; Boyles v. Maddox, 43 Ala. 357 ; Ex parte…

Tried before the Hon. Geo. H. Craig. This action was brought by Mrs. Ann M. Jeffries, the wife of Walter B. Jeffries, against D. J. Castleman, to recover the sum of $701.13, alleged to be “due by account for money had and received by Jeffries & Castleman (a firm composed of A. S. Jeffries and the said D. J. Castleman), belonging to the corpus of the statutory separate estate of the said Ann M. Jeffries, and received by said Jeffries & Castleman on the 18th November, 1872 ; ”…

<p>Appeal from the Circuit Court of Tuskaloosa.</p> <p>Tried before the Hon. W. S. Mudd.</p> <p>The appellant in this case, Richard E. Ellis, sued out an attachment on the 5th January, 1876, against E. C. Ellis, his son, claiming the sum of $153 as due to him for the rent of land, known as the “Sipsey place,” for the year 1875; the attachment being sued out on the ground “that the said E. C. Ellis, the tenant of the said R. E. Ellis, has removed a portion of the crop from the said tract of land.” The attachment was^'issued by the clerk of the Circuit Court, and commanded the sheriff “to attach so much of the estate of the said E. C. Ellis as will be sufficient to satisfy the said debt and costs.” It was levied by the sheriff on three bales of cotton, to which a claim was interposed by Caswell Martin, the appellee, who made affidavit of his ownership, and gave bond, as required by the statute; and an issue was thereupon made up, under the direction of the court, between him and the plaintiff in attachment, to try the right of property in the cotton. On the trial of this issue, as the bill of exceptions states, “the following proceedings were had”:</p> <p>“The plaintiff introduced several witnesses, who proved that he rented to his son, said E. C. Ellis, for and during the year 1875, a small tract of land in said county, known as the ‘Sipsey place’; that the said E. O. Ellis, on the 31st December, 1874, executed the following note for the rent,” setting out a note for $153, dated the 31st December, 1874, and payable on or before the 1st January, 1876 : “that seven bales of cotton, more or less, were raised by said defendant on said farm during the year 1875, three of which bales are the bales now in controversy, on which the attachment in this case was levied, and which were claimed by said Caswell Martin; and the proof tended to show, also, that all of said seven bales of cotton were removed from the premises, to the gin-house of one Taylor, to be by him ginned and baled, in December, 1875. The claimant offered in evidence the following mortgage, or lien-note, and proved its execution by said E. C. Ellis on the 27th May, 1875, and that it was intended to cover the crops of cotton and corn raised by him on the ‘Sipsey place’ during the year 1875, which include the three bales of cotton here in controversy, and in fact the whole of the said seven bales. This proof was made, and said instrument introduced, against the objection of said plaintiff, who objected thereto on the ground that said instrument contained no sufficiently certain description of the property or crop alleged to be conveyed or described, and was void for uncertainty as against the plaintiff, and could not be lawfully explained by parol evidence. The court overruled the objection, and admitted said deed as evidence, with proof that the cotton was part of the crop raised by said E. O. Ellis on said place in 1875; to which ruling plaintiff excepted.”</p> <p>The said mortgage was in these words: “The State of Alabama, Pickens county: On the 1st day of December next, I promise to pay O. Martin, or order, the sum of five hundred dollars, cash advanced by him to me, and obtained by me this day hona fide, for the purpose of making a crop the present year; and without such advance it would not be in my power to procure the necessary teams, provisions, and farming implements to make such crop; and this note is given as a lien on my said crop, under the statute, with power to take possession of and sell the same when said debt becomes due, on account thereof, at such time and place, and on such terms as he may deem best, if I fail to pay the same when due. And I obligate myself to deliver to said C. Martin, or order, at such place as he may designate, my entire crop of cotton and corn of the present year, as soon as ready for market; to be by him sold, in such manner as he may deem best, on account of said rent. Witness my hand and seal, this 27th May, 1875,” This instrument was signed by said E. C. Ellis, attested by two subscribing witnesses, and admitted to record in the office of the probate judge of Tuskaloosa, on the 9th June, 1875, on proof by one of the subscribing witnesses.</p> <p>The bill of exceptions proceeds as follows: “The consideration of said obligation was mostly, to-wit, $350 of the $500, for advances made said E. O. Ellis to enable him to cultivate said crop during the year 1875; and the balance of said consideration, to-wit, $150, was an antecedent debt of the year previous. The proof was conflicting, as to whether or not said E. C. Ellis had told said claimant, at or before the time said instrument was executed, that plaintiff was to charge him no rent on said place; but it was proved that said claimant, when he took said mortgage or instrument, and also when he seized the cotton under it, knew that said E. O. Ellis did not own said place which he cultivated during the year 1875, but that said plaintiff owned it. It was shown in evidence, also, that said claimant sent to Taylor’s gin-house, and took possession of said seven bales of cotton, under said mortgage or lien-note, without the consent of plaintiff or defendant; and the proof showed that said cotton averaged nearly five hundred pounds per bale, and was worth eleven to twelve cents per pound.”</p> <p>“This was all the evidence; whereupon, the court charged the jury, among other things, as follows : T. That an attachment, sued out by a landlord for rent of land, may be levied on the crop raised on the rented premises, whether in the possession of the tenant, or any one holding it in his right, or in the possession of a purchaser from him with notice of the landlord’s lien.’ ‘2. But, in such case, the writ of attachment must be to attach so much of the crops raised or made on the rented land, and not so much of the estate of the defendant as will be of value sufficient to satisfy the debt and costs: that an attachment, like the one in this case, issued against the estate of the defendant, even though the same be levied on a portion of the crops raised on the rented land during the current year, and though the affidavit be correctly framed, creates no such lien on such crop or crops as would have priority over the mortgage lien of the claimant.’ ‘3. That if the jury believe the said mortgage was executed by E. O. Ellis to the claimant on the 27th May, 1875, and was intended to include and did include the crops raised by said E. O. Ellis on the Sipsey place in the year 1875; even though they should further believe that the debt sued for was due for rent of said place by defendant as plaintiff’s tenant during said year, and that the cotton in controversy was raised on said rented premises during said year, and so known to said claimant; still, the plaintiff, though a landlord, would have no such claim or lien, under the present writ of attachment, as would be superior or paramount to the claim or lien of said claimant under his mortgage, but that the lien of the mortgage would be superior to the lien of the attachment, or any claim thereunder in this case.’ ”</p> <p>The plaintiff excepted to the second and third charges; and he now assigns them as error, with the rulings of the court on the evidence, to which, as above stated, he reserved exceptions.</p> <p>1. It may be conceded that the usual and more proper form of an attachment, in such a case as this, would direct a levy to be made of the crop raised on the rented premises, and not of the defendant’s estate generally. But the mistake in form is a mere clerical misprision — an irregularity, of which the defendant in attachment could only take advantage by plea in abatement, or motion to quash. He was the only person who could be damaged by the exercise of the enlarged power which the writ conferred on the sheriff, and he has waived the objection. There was nothing wrong or irregular in the levy of the attachment, and the claimant can not avail himself of irregularities which the defendant in the attachment has waived. — Drake on Attachments, § 697; 1 Brick-ell’s Digest, 165, § 155, and cases there cited; Pace v. Lee, 49 Ala. 571; Ware v. Todcl, 1 Ala. 199; Blair v. Miller, 42 Ala. 308; Bank v. Andreios, 8 Porter, 404. Besides, a landlord’s lien is created by the statute, and not by the levy of an attachment; and an attachment is only given as a remedy, or means of enforcing the lien.— Westmoreland v. Foster, at the present term.</p> <p>2. The claimant’s mortgage purports to convey the grantor’s “entire crop of cotton and com of the present yoar”; but it entirely fails to indicate where the crop was to be raised, to whom the land belonged, in what county it was situated, or whether it contained ten acres or a thousand. As between the immediate parties, where no intervening rights have accrued to third persons, the defect may be susceptible of explanation, as a patent ambiguity, or simple inaccuracy of description; but, as against attaching creditors, or purchasers for value, the instrument itself ought to contain descriptive words sufficiently certain and definite to identify the property, else it is void for uncertainty. — Jackson v. Bosevelt, 13 John. 96; Nolle v. Libbert, 34 Indiana, 163.</p> <p>1. The attachment should have been issued against the crop raised on the rented lands, and not against the defendant’s estate generally.— Haivlcins v. Gill, 6 Ala. 620. This defect is not a mere irregularity, or clerical misprision: it is a defect in substance, and renders the attachment void, as an attachment for rent.— Drake on Attachments, § 4 a. The act of the clerk, in issuing an attachment, is judicial, and not ministerial. — Ex-parte Harris, 52 Ala. 91; Matthews v. Sands Go., 29 Ala. 138; 27 Ala. 362.</p> <p>2. If the plaintiff’s attachment was void, there can be no doubt of the claimant’s right to take advantage of the defect. The cases cited for appellant, as to defects of form which the defendant in attachment must plead in abatement, and_ of which the claimant can not take advantage, were ordinary attachments, sued out under the general law; while this is a special proceeding, in which the statute must be strictly pursued, and to which the rules governing ordinary attachments do not apply. The claimant could not litigate the plaintiff’s right to a general attachment, or to a judgment against the defendant; but, as a privy in estate and interest, having possession of the property attached, he may question the plaintiff’s right to seize and condemn it. As between them, the question is, which has the superior title— the claimant, as a mortgagee in possession after the law-day, or the plaintiff as a general attaching creditor. — Gollingsworth v. Horn, 4 Stew. & P. 249.</p> <p>3. As to the sufficiency of the .claimant’s mortgage in the description of the property, see Gafford v. Stearns, at the last term.</p>

Heard before the Hon. Henry O. Speake. The bill in this case was filed on the 30th March, 1877, by E. L. Hammond, as the administrator de boruis non of the estate of John Gurley, deceased, against Prank B. Gurley, the administrator in chief, Mrs. Rebecca Gurley, the widow, and the several children of said decedent, as his heirs-at-law and distributees: and also against Ellen M. Weakley, Sallie P. Sale, as the executrix of the last will and testament of Charles C. Sale, her…

In the matter of the estate of Mrs. Elizabeth D. Harwood, deceased, on final settlement of the accounts and vouchers of Samuel B. M. Harwood, as administrator. The record does not show when the intestate died, nor when letters of administration on her estate were granted to said Samuel B. M. Harwood.

Tried before tbe Hon. Luther B. Smith. This action was brought by Mrs. H. E. Weir, against W. P. Peebles, and was commenced by an attachment, sued out before a justice of tbe peace, on the 12th December, 1877.

Tried before the Hon. W. B. Wood. This action was brought by Elijah M. Hussey, against John E. Logwood and his wife, Mrs. Hettie B. Logwood, to recover one horse, nine mules, and two hundred bushels of wheat, together with the value of the hire or use of said property during its detention; and was commenced on the 17th January, 1876.

The Record does not show the name of the presiding judge. This action was brought by Andrew J. Day against Caswell C. Huckabee, and was commenced on the 10th March, 1876.

Tried before the Hon. Wi. L. Whitlock. This action was brought by William McKee, against William M. Griffin, Washington W. Griffin, and David C. Jordan ; and was commenced on the 8th July, 1871.

Application by petition for a mandamus to the Circuit Court of Madison, Hon. Louis Wyeth presiding, to compel that court to grant a rehearing, or new trial, in a certain cause therein lately pending, wherein one A. J. Hannah was plaintiff, and the petitioners, Johnson & Seats, were defendants, and in which a judgment by default was rendered against said defendants.

<p> Action by Payee, on Accepted Draft, against Acceptor. </p> <p>1. Action by foreign Corporation; amendment of complaint in avwment of plaintiff’s corporate character. — In an action by a foreign corporation, if the complaint does not aver the plaintiff’s corporate character, the cause should not bo struck from the docket on that account, but an amendment should be allowed to supply the defect.</p>

- Tried before the Hon. Luther B. Smith. This action was brought by the appellee, a corporation chartered under the laws of Alabama, and doing business in the city of Mobile, against James F. Barbour & Son as partners; was commenced on the 6th April, 1876, and was founded on the defendants’ two promissory notes, each for $500, dated the 8th May, 1875, payable respectively on the 15th December, 1875, and the 1st January, 1876, to the order of T. Eatman & Co., at the Mobile…

Heard before the Hon. Henry C. Speake. Tlie bill in this case was filed on the 24th January, 1876, by Mrs. Laura W. Arnett, against James M. Bailey and bis wife, Mrs. Jane F. Bailey, who was tbe complainant’s sister, and against Benjamin N. Word; and sought a partition of certain lands, of which said Bailey and wife bad possession, an account of tbe rents and profits while in tbeir possession, and the cancellation of tbe deed under wbicb they claimed tbe lands.

From the Circuit Court of Colbert. Tried before the Hon. W. B, Wood.

The record does not show the name of the presiding judge. In this case, an attachment was sued out on the 13th April, 1876, before a justice of the peace, by Thomas Parker, against John Washington; and a judgment by default was rendered by the justice, on the 15th April, 1876. On the 17th April, 1876, the defendant sued out a certiorari before the probate judge, returnable into the Circuit Court, alleging that the judgment was rendered without personal notice to him.

Heard before tbe Hon. N. S. Graham. Tbe bill in tbis case was filed on tbe 17th March, 1875, by tbe appellants, suing as partners, against Bobert C. Foster and George W. Foster, Jr.; and sought to… Held: on appeal, that the attachment was given only to the landlord, and could not be sued out by his assignee. — See the report of the case, Foster v. Westmoreland & Trousdale, 52 Ala. 223.

Heard before the Hon. Charles Turner. The bill in this case was filed on the 16th June, 1876, by Mrs. Martha H. Owen, a married woman, suing by her next friend, against the personal representatives and heirs-at-law of George M. Garth, deceased, to-wit: William S. Bank-head and his wife, Catharine M. (formerly the widow of said Garth), as administrator and administratrix of said Garth’s estate, and Kate G. and George Garth, his infant children ; and sought to subject a tract…

Heard before the Hon. A. W. Dillard. The bill in this ease was filed on the 23d December. 1873, by Mrs. Mary Jane Foscue and her two… Held: that the complainants were entitled to an account of the trust estate from the trustee ; that the trustee was authorized to receive the promissory notes from the executors, in satisfaction of the legacy; that in the purchase of the “Calhoun place,” under the facts proved, in the name of the beneficiaries, and for their benefit, the…

Tried before the Hon. Louis Wyeth. This action was brought by James H. Albrittin, against tbe mayor and aldermen of the city of… Held: that they are not liable to a private action, at the suit of individuals who receive injuries, on account of neglect to keep the roads in repair. — Barbour County v. Broioder, 36 Ala. 366; Covington County v. Kinney, 48 Ala. 566; Sims v. Butler County, 49 Ala. 110 ; Dargan v. Mayor and Aldermen of Mobile, 31 Ala. 469; City Council v.…

Clair. Tried before tbe Hon. ¥m. L. Whitlock. This action was brought by B. E. Ashley, against the “ Howe Machine Company,” a foreign corporation; and was commenced by attachment, sued out before a justice of the peace, on the 17th October, 1873.

<p> Action on Common Counts. </p> <p>1. When principal may maintain action against agent, for money had and received. — As a general raie, the principal can not maintain an action against his agent, for money collected and not paid over, without a previous demand; but this rale does not apply, where the agent denies his liability, or otherwise shows that a demand would have been fruitless.</p> <p>2. Charge to jury; rule, of construction. — Instructions to the jury must bo construed in connection with the evidence; and if, when so construed, they are correct, their incorrectness, as applied to a different state of facts, is not a reversible error.</p> <p>3. Charge withdrawing evidence from jury, — A charge requested, which withdraws from the consideration of the jury any evidence, however weak or inconclusive it may be, may properly be refused.</p> <p>4. Abstract charge. — To authorize a reversal on account of an abstract charge, the record must show that it misled the jury, to the prejudice of the appellant.</p>

Louis Wyeth. This action was brought by George W. Montgomery, against Edmund N. Wood, to recover for the use and occupation of a town lot in Blountsville, in which the plaintiff claimed an undivided half interest; and was commenced on the 28th June, 1875.

Heard before the Hon. A. W. Dillard. The bill in this case was filed on the 31st October, 1873, by Hobart C. Dugger and Mrs. Alice Y. Sprague, who sued by her husband as her next friend, two of the children and heirs-at-law of Henry Dugger, deceased; against Henry A. Tayloe, Willis P. Bocock, and Bobert L. Maupin; and against Mrs. Alice G. Dugger, the widow of said decedent, who was sued individually, and as administratrix of the estate of John W. Dugger, one of their…

Tried before the Hon. W. B. Wood. This action was brought by Robert E. Bentley, against Thomas Masterson and James E. Griffin; was commenced on the 28th August, 1875; and was founded on an attachment bond, which was dated on the 27th November, 1874, and conditioned that the said Thomas Masterson, who was the plaintiff in the attachment, should prosecute his said attachment to effect, and pay the defendant therein, said Robert E. Bentley, all such damages as he might sustain…

From tbe Circuit Court of Madison. Tried before tbe Hon. Louis Wteth. This action was brought by William M. Holding and his two sisters, Mrs. Mary E. Hundley (tbe wife of Orville M. Hundley), and Mrs. Mattie Eletcber (tbe wife of A. S. Eletcber), against Reuben Chapman, to recover the possession of a small strip of land, eight or ten feet wide by thirty-three feet six inches long, together with damages for its detention ; and was commenced on the 23d September, 1871.

Tried before tbe Hon. John A. Muraras. Tbis action was brought by Mrs. Caroline A. Lomax, against M. P. LeGrand & Co., and was commenced on tbe 27th January, 1873.

Heard before the Hon. It. S, Watkins. The bill in this case was filed on the 22d June, 1871, by Alexander Hamilton, against William H. Blackwell and Lucy S. Blackwell; and sought to set aside, as fraudulent in law, a deed by which said William H. Blackwell conveyed an undivided one-third interest in a tract of land, containing three hundred and twenty acres, to said Lucy S. Blackwell, who was his sister, and to subject said interest in the land to the payment of a debt which…

Tried before the Hon. Louis Wyeth. ■This was a motion by Zebulon P. Davis and his wife, Mrs. Williametta Davis, to quash four executions, with their levies, and to set aside and vacate a sale under them of a certain house and lot in Huntsville.

Heard before the Hon. Henry C. Speaks. The original bill in this case was filed on the 3d August, 1870, by the personal representative of George W. Neat, deceased, against John H. McMullen and wife, Joseph C. Bradley, and William H. Wortham; and said Wortham having died pending tbe suit, it was revived against Ms administrator and heirs.

Appear from tbe Probate Court of Limestone. In tbe matter of the estate of Thomas H. Hobbs, deceased, on final settlement of the accounts and vouchers of Mrs. Anne B. Hobbs, his deceased widow and administratrix, by James Benagh, her administrator; the accounts and vouchers, as filed for settlement, being contested by John Turrentine, as administrator de bonis non of said Thomas H. Hobbs.

Heard before the Hon. R. S. Watkins. The bill in this case was filed on the 3d April, 1873, by Mrs. Nannie T. Lesslie, suing by her husband as her next Mend, against the heirs and administrator of William Richardson, deceased, and the sureties on the official bond of said administrator, and against the personal representative and heirs of Thomas Bass, deceased; and sought relief on account of the purchase of a tract of land by complainant, under the following state of facts…

Erom the Circuit Court of Madison. Tried before the Hon. Louis Wyeth. This action was brought by James Hickman, against John D. Weeden, as the executor of the last will and testament of William Acklen, deceased; and was commenced on the 4th April, 1874.

Heard before tbe Hon. William H. Robinson, as special chancellor, selected by the parties, on account of the incompetency of Hon. H. C. Speake.

The record does not show the name of the presiding judge. In the matter of the final settlement and distribution of the insolvent estate of Joseph Phillips, deceased, which was reported insolvent, by John Phillips, the administrator, on the 10th June, 1874, and regularly declared insolvent by the Probate Court on the 8th March, 1875; and against which claims were filed by John A. Shelton, as the administrator of the estate of William L. Shelton, deceased, and by Samuel…

<p> Statutory Action in Nature of Ejectment. </p> <p>1. W hat title loill support action. —Prior possession for several years, accompanied with, tke erection of valuable improvements, and other acts of ownership, raises a presumption of title, which, in the absence of proof of an outstanding title in a third person, will support an ejectment against a mere trespasser.</p>

Tried before the Non, Louis Wíeth, This action was brought by Mrs. E. O. Humes and others, against Morris Bernstein ; and was commenced on the 12th July, 1871.

Heard before the Hon. N. S. Graham. The bill in this case was filed on the 10th August, 1870, by Bobert W. Banks and his wife, Mrs. Alice Clay Banks (formerly Sherrod), the daughter of Felix A. M. Sherrod, deceased, against Bichard Jones, Joseph Wheeler and wife, and others; and sought a judicial construction of the will of Benjamin Sherrod, deceased, who was the grandfather of Mrs. Banks, an account, and general relief.

Tried before the Hon. Louis Wyeth. This action was brought by John D. Yandeventer and John Yan Yalkenburg, suing as partners, against John J. Ford and Daniel A. Moseley, to recover damages for the breach of a special contract, by the terms of which, as alleged in the complaint, the plaintiffs ordered a fence for the defendants, at their request, from the “American Fence Company,” at Cleveland, Ohio; but the defendants refused to receive the fence when tendered, because it…

In the matter of tbe estate of William H. Ogbourne, deceased, on tbe petition of Mrs. Susan Y. Ogbourne, bis widow, praying that tbe administrator be decreed to pay and deliver to her certain personal property of the estate, wbicb sbe claimed as exempt from administration.

Tried, before the Hon. W. B. Wood. This action was brought by Samuel Tanner, as the executor of the lust will and testament of Peterson Tanner, deceased, against the Louisville & Nashville Railroad Company,' to recover damages for the alleged wrongful act and negligence of the defendant’s agents and servants, by means whereof, in September, 1872, plaintiff’s testator was run over and killed by an engine and train of cars ; and was commenced on the 29th August, 1873.

Heard before the Hon. Adam O. Eelder. The bill in this case was filed on the 1st September, 1869, by William IT. Thames, who died pending the suit, and it was thereupon revived in the name of his widow as administratrix; against Henry M. Caldwell, John T. Milner, and the administrator and heirs of John B. Massey, deceased; the said Milner being sued individually, and as the administrator of the estate of Willis J. Milner, deceased.

Heard before the Hon. N. S. Graham. The bill in this case was filed on the 4th January, 1875, by William G. Brown and others, only children of Elizabeth Brown (afterwards Gunn), deceased, the infants suing by their next friend, George W. Gunn, who was the father of one, and the step-father of the others; against the administrator and heirs-at-law of Henry H.' Grimes, deceased.

Application by petition by Francis S. Lyon, as administrator of the estate of Edwin A. Glover, deceased, for a writ of prohibition from this court to the Chancery Court of Marengo, to vacate and annul a decree rendered by that court at its June term, 1877, Hon. A. W. Dillard presiding as chancellor, in a certain cause then pending in said court, wherein Thomas J. Foster, as special administrator of the estate of said Edwin A. Glover, was complainant, and said F. S. Lyon and…