Volume 61 — Alabama Reports

Tried before Hon. John A. Minnis. The appellant, Toney, was convicted under an indictment which charged that he kept or exhibited a gaming table for gaming, or was interested or concerned in the keeping or exhibiting thereof.

Tried before the Hon. Henry I). Clayton. The appellants were convicted under an indictment which charged that they “ did fraudulently pack or bale one bale of lint cotton, the property of Hester Ann Jones, by plating or otherwise, to-wit, by sand-paahiny” &c. On the trial, it was shown that the defendants were the owners of a public gin, which they ran for toll in Barbour county, in this State.

Tried before Hon. John A. Minnis. The appellant, Dock Johnson, was convicted on an indictment, charging in a single count, that he “wilfully and masr liciously trespassed upon the lands of William B. Westcott, by cutting down or destroying a quantity of wood or timber, at tbe time growing thereon,” against the peace, &c. On the trial, the State introduced David Westcott, who testified that, within, twelve months before the finding of the indictment, he found defendant on…

Tried before Hon. L. R. Smith. Appellee, Campbell, on the 15th clay of September, 1871, brought this action against James Lee and Susan, his wife, to subject her statutory estate, for work and labor done in the year 1863, in repairing fencing, and building a carriage-house and smoke-house, about the premises on which appellants resided, which formed part of her statutory estate.

Tried before Hon. H. T. Toulmin. Isaac Page, the appellant, was indicted for the murder of Tobin Preyer. He was found guilty of murder in the first degree, and sentenced to imprisonment in the penitentiary for life; and having reserved a bill of exceptions, brings the case here by appeal.

Tried before Hon. Louis Wyeth. On the trial of the appellant, Kelly, who was indicted for grand larceny, the State introduced one Elias Hartfield, who testified to the commission of the offense by Kelly, on the night of July 5th, 1878. This witness, two years before that date, had resided in the Meridianville precinct.

Tried before the Hon. James Q,. Smith. The appellant, Tom Peacher, was indicted for stealing “ a quantity of corn, to-wit, one bushel of corn, said corn being a part of the outstanding crop of corn belonging to William D. McCurdy, against the peace,” &c. The State introduced a witness who testified that she saw defendant, on three successive days, steal corn from the outstanding crop of corn belonging to W. D. McCurdy, in Lowndes county, and before the finding of the…

Tried before Hon. Henry T. Toulmin. This was a real action under the Code, brought by the-appellant, John M. Ladd, against the appellee, Sylvester Dubroca, to recover possession- of a certain tract of land situated in Mobile county. The case was tried on the plea of the general issue.

Tried before Hon. John K. Henry. The appellants, Lewis Walker and Cato Sellers, together with others were indicted for arson, at the fall term, 1875, •of the Circuit Court of Wilcox county.

Tried before Hon. Powi-iattan Lockett. The appellant, and one Green Lewis, Jr., were jointly indicted for forgery at the November term, 1878, of the Perry Court of Quarter Sessions. In accordance with the ninth section of the act establishing the Court of Quarter Sessions, the grand jury was composed exclusively of persons who resided in Uniontown beat.

Heard before Hon. H. Austill. The appellants, who are the widow and children of Angelo M. Philippi, (the widow also being his administratrix,) filed this bill on the 17th of April, 1877, against the appellee, Antonio Philippi, seeking thereby to establish a partnership between the appellee and said Angelo, and to compel a settlement of its affairs; and, secondly, to have the said appellee declared a trustee for the said Angelo as to an interest in certain property which is…

Tried before Hon. Henry D. Clayton. The appellant was indicted, tried, and convicted for the larceny of a hog. On the trial, the State introduced a witness, who testified, that about the middle of November, 1877, he went with one Harper to a field in which Harper had put his hogs to fatten; that they missed from said field a small white hog; that they made diligent search for said hog, and could neither find it, or any place where it could have gotten out.

Heard before Hon. A. W. Dillard. The appellee, Anna K. Duke, upon attaining majority, filed her bill against May and Sprott, the former being a surety, and the latter the personal representative of one King, a co-surety upon the bond of appellee’s guardian, seeking an account or decree for the,amount due the ward.

Tried before Hon. L. E. Smith. The appellant, Ivey, was prosecuted before the County Court, for a violation of the statute (Code, § 4203), against the use of abusive, vulgar or insulting language in the dwelling-house of another, or upon the curtilage thereof, &e. Having been convicted, he appealed to the Circuit Court,, where he pleaded not guilty. The jury found him guilty and assessed a fine, and judgment was rendered accordingly.

Tried before lion. Henry T. Toulmin. The appellee, Haynie, as administrator of the estate of Mrs. Kelly, sued appellant, Miller, as administrator of the estate of Mrs. Kelly’s late husband, E. H. Kelly, who died leaving his wife surviving him, for $750 and interest, claimed to be due according to “ a certain receipt made by the said E. H. Kelly,” of the tenor following: “Received, Mobile, July 2d, 1861, from Mrs. J. A. Kelly, her check B. of Mobile for $750, to be invested…

Tried before Hon. W. S. Mudd. The appellant was convicted of an assault and battery.

Heard before Hon. H. Austill. The appellee, Minna Frank, filed her bill against the appellant, Amelia Helmetag, and her husband, seeking to foreclose a mortgage executed by them on a certain house and lot in the city of Mobile.

Tried before Hon. Louis Wyeth. Appellant, Koopman, was convicted under an indictment which charged, that before the finding thereof, “he did engage in the business of a wholesale dealer in spirituous, vinous, or malt liquors, in a town of less than one thousand inhabitants, against the peace and dignity of Alabama.” Hav-ing reserved exceptions to the refusal of a charge requested, he brought the case here by appeal. This charge is set forth in the opinion.

Tried before Hon. L. R. Smith. The opinion states the facts. The main error relied on was the action of the court below in overruling a demurrer to the complaint, on the ground that it disclosed no substantial cause of action. The declaration shows on its face that Hale county, the plaintiff, could not own the character of claims sued on. The debt is due directly to the jurors summoned. — Revised Code, §§ 4345, 4212.

Tried before Hon. Louis Wyeth. The indictment under which the appellant was tried and convicted, is framed under section 4205 of the Code of 1876, and charges, that he “ did sell or give vinous, spirituous or malt liquors to James Foreman, a minor, against the peace,” &c. The only evidence on tbe trial was tbe testimony of said Foreman.

<p>Appeal from Chancery Court of Sumter.</p> <p>Heard before James Cobbs, Esq., special chancellor.</p> <p>The opinion states the case.</p>

Heard before Hon. H. Austill. The appellant, Helen Garner, filed her bill against the administrator, widow, and heirs-at-law of John II. Garner, to foreclose a mortgage on certain real estate in the city of Mobile, made by the deceased in his life-time.

Tried before Hon. W. B. WOOD. Charles Bash, the appellant, was convicted of the murder of his wife, and sentenced to be hanged. The bill of exceptions states that the defendant was in jail when the list of jurors summoned for his trial was served upon him. On this list appeared the name of John JET. Lock-well, though there was no evidence that there was any person of that name.

Heard before Hon. H. C. Speake. The appellee, as administrator of Eliza Johnson, deceased, commenced proceedings in the Court of Probate of Franklin county, against W. R. Newsom, as executor of YVhitmell Rutland, deceased, for the recovery of a legacy bequeathed his intestate.

Tried before Hon. Henry T. Toulmin. This was a real action in the nature of ejectment, brought by the appellant, Weiner, in November, 1877,… Held: the right of homestead exemption, except as against persons havingj a paramount title, will exist during the continuance of his estate, whether it be an equitable estate, or an estate for life, for a term of years or a less estate.” This case, which settles the question, defines the principle contemplated by the constitution.

Heard before Hon. H. C. Speake. This is an appeal from an order of the chancellor dissolving an injunction, granted on bill filed by Collier and his wife, against the appellee Falk, and Wiggins, the sheriff, to restrain the collection of a judgment in favor of Falk against Collier and his wife, an execution on which was then in the sheriff’s hands.

Appeals from Chancery Court of Marengo. The record does not show who presided on the hearing. These are cross appeals from a decree of the chancellor upon the demurrers to a bill filed by Mrs. Annie Abrahams, against Samuel E. Chapman, J. J. McCorkle, as administrator of Martha, the deceased wife of said Samuel, R. H. Lock-hart, and the heirs of said Martha.

<p> Application to establish and probate lost Will. </p> <p>1. Will; what will not vitiate.- — Irrelevant recitals will not vitiate a will, and if it be duly attested by the requisite number of subscribing witnesses, the fact that another of the subscribing witnesses was incompetent to prove its execution, is entirely immaterial.</p> <p>2. Witness; competency of. — The exception to the competency of witnesses, as declared by statute, (Code, $ 3058), relates to “ transactions with, or statements by a deceased person,” whose estate is interested, &c., and does not disqualify a legatee or devisee, under a will propounded for probate, from testifying as to other matters connected therewith; hence when such person is offered as a witness, a general objection to his competency can not be entertained; but objection should be made to such testimony as infringes the rule declared by the statute.</p> <p>8. Lost instrument; rule as to proof of contents. — As a general rule, where the loss of a written instrument is sought to be proved, its loss should be shown, before allowing evidence of its contents; but it rests in the sound discretion of the lower court to modify, or change, the rule in a particular case; and the exercise of that discretion is not revisable.</p> <p>4. Assignment of error; what not subject of. — Allowing a question to be asked, which was not answered, will not support an assignment of error.</p> <p>5. Order of introducing evidence, ruling as to ; what not erroneous. — Proponent was a witness, as to the loss of the will, and contestant, on cross-examination, exhibited a copy of a bill in chancery, filed and verified by her prior to that time, which she made affidavit to, knowing it averred that decedent died intestate. By agreement of counsel, it was expressly understood that this copy was to be read in evidence, but contestant declined to do this, until proponent closed her evidence; and thereupon the court, at proponent’s instance, required the copy to be read then, — held, not error.</p> <p>6. Evidence; what properly excludedj. — •’Where a part of the bill, in which complainant asserted facts to be different from what she afterwards alleged them to be, was allowed for the purpose of discrediting her testimony — other portions of the record not touching that question, and shedding no light on the issue, are irrelevant and properly excluded.</p> <p>7. Same. — Where the record of proceedings in another court is legitimate only to show a right to appear and defend the suit, and that has already been conceded, it is not error to rule out such record.</p>

Heal’d before Hon. A. W. Dillard. Tobin, the appellant, filed his bill against T. D. Bell and R. G. McMahon, composing the firm of Bell & McMahon, to enforce a vendor’s lien on certain lots in the town of Gainesville, known as “lots numbers 24, 25 and 26.” Lots Nos. 24 and 26 had belonged to said T. D. Bell, and he in 1863, as the agent of Tobin, contracted for the purchase of lot No. 25, with one Reavis, who claimed to have authority to sell, and to represent G. P. Beirne,…

Heard before Hon. H. Austell. This was a bill in equity filed by the appellee, Villalonga, against the widow and children of John Dooley, to foreclose a mortgage executed by deceased in his life-time on certain premises in the city of Mobile. The execution of the mortgage was duly acknowledged by Dooley and his wife, before a justice of the peace, who certified the same in the form prescribed by the Code. The terms of this instrument are set forth in the opinion.

Heard before Hon. A. W. Dillard. James Abrahams, the appellee, sought by his bill against Samuel Eskridge, jr., the appellant, to annul a certain deed made to said Samuel Eskridge, jr., by his father, Samuel Eskridge, sr., on the ground that it was made with intent to hinder, delay or defraud creditors, and in event the deed was not assailable on that ground, to have it declared a general assignment, and to hold Eskridge, jr., liable as an executor de son tort for the…

Tried before Hon. Louis Wyeth. Appellant, as surviving partner of Galbreatb, Stewart & Co., brought this action against the appellees, as late partners of the firm of Lewis Cole & Son. The complaint contains three counts : the first on a promissory note, made by defendants; the second, on account stated; and the third, for goods, wares and merchandise, sold and delivered. The defendants pleaded, in short by consent: “1. Non assumpsit. 2. Payment. 3. Set-off. 4.

Tried before Hon. H. T. TOULMIN. The appellees, as assignees of LeBaron & Son, brought suit against Louis Wagner and Charles Bawls, late partners under the style of Wagner & Bawls, upon an account due LeBaron & Son, and also to recover the amount due upon a draft drawn on the 14th day of October, 1874, by Wagner & Bawls on L. P. Wagner, payable to the order of LeBaron & Son, for one thousand dollars, -which Wagner refused to accept, and which was duly protested, &e. Bawls…

Heard before Hon. H. AUSTILL. The appellee, Charles A. Poelnitz, in November, 1875, filed his bill against the appellant, the President, Directors and Company of the Bank of Mobile, to enjoin prosecution of a pending action at law, brought by it on a promissory note made by the appellee, and others, and payable to Walsh, Smith, Crawford & Co., which note had come into the possession of the Bank, as hereinafter stated.

Tried before Hon. Geo. H. Ceaig. The appellant, Henry Wilson, was convicted and sentenced to two years’ hard labor for the county, under an indictment which charged that before the finding thereof, he “ did convey into the county jail of Dallas county, Alabama, an auger, an instrument useful for the purpose, to aid Wiley Jones and Henry Johnson, alias John Cunningham, at the time being prisoners confined in said jail, under the charge or charges for the criminal offense of…

Tried before Hon. M. J. Sapp old. Lovelace brought suit against Underwood on several promissory notes which the latter had executed to him. Pleas: -want of consideration, and that the notes were given for the debt of a third person, one Butler, without any consideration therefor, on the request of plaintiff. There was a. jury trial, and verdict and judgment for the plaintiff.

Tried before Hon. JON. IÍAEALSON. The appellee, Meyer, commenced this action against the appellant, the Western Union Telegraph Company, before a justice of the peace, who rendered judgment in favor of the plaintiff. The defendant appealed to the City Court. The plaintiff filed a complaint in that court containing three counts, which was afterwards amended.

Tried before Hon. H. T. ToiJLMIN. Appellee, Mayes, as tbe administrator of George Blakely, brought this action against the appellant, Alabama Gold Life Insurance Company, to recover the amount of a policy, alleged to have been issued by it on the life of his intestate.

Tried before John P. Tillman, Esq., an attorney of the court. The appellant, Joe Gill, was indicted for the murder of William G. Gill.

Tried before Hon. John K. Henry. The indictment in this case, returned at the fall term, 1876, charged that “ before the finding thereof, Abe McDowell feloniously took and carried away a hog, the personal property of George Richards, against the peace,” &c. The jury found' the defendant “ guilty as charged in the indictment,” and assessed the value of the stolen property at one dollar. The defendant moved in arrest of judgment, on the grounds stated in the opinion.

Tried before Hon. O. J. Semmes. The appellant, Boyd, was indicted and convicted under section 4445 of the Code, for setting up or being concerned in setting up or carrying on a lottery, &c. On the trial, a bill of exceptions was reserved, which sets forth all the evidence.

Tried before Hon. George H. Craig. The appellant, Isaac Finley, was indicted for an assault with intent to murder one Westbrooks. The jury found the defendant guilty of an assault with a weapon, and assessed a fine, and judgment was rendered accordingly. The record discloses that a regular venire was duly issued by the clerk to the sheriff, commanding him to summon eighteen persons to serve as grand jurors.

Tried before Hon. George H. Craig. The appellant, Ulmer, was convicted under an indictment found in November, 1878, which charged that before the finding thereof, he “ sold vinous, or spirituous liquors without license and contrary to law, against the peace,” &e. The evidence showed that within twelve months before the finding of the indictment, and in one mile of the town of Orrville, in Dallas county, the “ defendant, in the fall of 1878, sold all kinds of liquor in a…

Tried before Hon. John N. Henry. The appellant, Emanuel Steele, was indicted for the murder of James Herbert, alias Captain Herbert, found guilty of murder in the second degree, and sentenced, in accordance with the verdict, to ten years imprisonment at hard labor for the county. The evidence shows that Steele and the deceased were both tenants of Mrs. Mathews, and lived on her plantation which was managed by one Forniss.

Tried before Hon. Jon. Haralson. This was an original attachment sued out by the appellees, Pitts and Henry, on the 20th day of November, 1876, against the appellant Mitchell, and returnable to the City Court of ■Selma on the first Monday in January, 1877.

Tried before Hon. George H. Craig. The appellant was convicted under an indictment found on the 22d day of March, 1878, which charged that he “ feloniously took and carried away, twenty pounds of cotton, a part of an outstanding crop of cotton, the property of B. A. Rush,” &c. On the trial, the State introduced one Benjamin A. Rush, who testified that be was the person named in the indictment, as the owner of the property alleged to have been stolen, and be was known as Ben…

Appeals from Circuit Court of Mobile. Tried before Hon. H. T. Totjlmin. These cases involved the same questions, and were argued and submitted together. Held: the recording of a copy from the Secretary of State’s office is a substantial compliance with said section 1756, then it is contended that the said declaration is not authenticated for the purposes of proof, as required by section 1761 of the Revised Code of 1867, cited above.

Tried before Hon. John K. Henby. The appellee, Dr. A. Jay, jr., brought this action against the appellant, the M. & M. Bailway Co., to recover compensation for medical services rendered to one Green Bichardson, an employee of the company, who had been injured while in its service.

Tried before the Hon. John K. Henry. This Avas a trial of the right of property, which had been levied on under execution in favor of appellants, against James Dugan, husband of appellee. The property levied on, consisted of a portion of a stock of goods, in a store, which formerly belonged to the husband. At the time of the levy, the store was carried on in the wife’s name, and she and her husband together attended to the business.

Tried before Hon. James Q,. Smith. The appellant, the Mobile Mutual Life Insurance Com-pany, brought his action of unlawful detainer, before a justice of the peace, against the appellee, Steele. The justice having decided the case against appellant, it appealed to the Circuit Court. x The admitted facts were as follows: The lands sued for formerly belonged to Steele. They were sold on the 25th day of January, 1877, under a decree in chancery against him.

Tried before Hon. James Q. Smith. This was a statutory real action brought by the appellants, Milner & Co., against the appellee, H. W. Clarke, to recover a certain lot in the city of Montgomery. The appellants deduced title by regular conveyances from Charles T. Pollard, whose title was not disputed, and the appellee defended on tax deeds to the premises made under sale for the taxes of 1870 and 1871.

Tried before Samuel F.' Bice, Esq., an attorney of the court. Hamill contested the election of Gibson to the office of county solicitor before the probate judge, and appealed from an adverse judgment to the Circuit Court. In that court the cause was submitted for decision to the presiding'judge, (Hon. AY. J. Haralson) “ on the record and such brief as may be submitted.

Tried before Hon. James Q,. Smith. Appellants, the heirs-at-law of Josephus Sharpe, brought their statutory real action against the appellee, JaneC. Orme, to recover certain lands. Appellants claimed title by a deed from tbe appellee and her husband, Thomas J. Orme, who bas since died, leaving her in possession. This deed was regular in form, and was acknowledged before a justice of tbe peace, whose certificate is as follows: “ State of Alabama, Montgomery County.

Heard before Hon. Charles Turner. The original bill in this cause was filed by the appellee, John P. Mitchell, against the appellants, Gabriel H. Harrell, Whitmell F. Harrell, and W. H. Harrell, and sought to condemn certain lands, then in the possession of W. H. Harrell, to the payment of a note made by the said Whitmell F. and Gabriel H. Harrell, to one Mitchell, the testator of appellee, which note then belonged to appellee.

Tried before Hon. John A. Minnis. The indictment in this case charged that before the finding thereof, “Charles Wesley, alias Charlie Wesley, and Creed Scott, feloniously took thirty dollars in greenbacks, national bank-notes, gold or silver coin of the United States, the pi'operty of William Hamilton, from his person, and against his will, by violence to his person, or by putting him in such fear as unwillingly to part with the same, against the peace,” &c. There was a…

Tried before Hon. Geo. H. Craig. Appellant, Horace Ware, brought suit against the appellee, A. T. Jones, on certain promissory notes made by the-latter to the former on the 11th day of August, 1862, payable respectively, on 1st of April, and 1st of August, 1863.

Heard before Hon. CHARLES TURNER. The appellee, Sterling Brown, filed this bill against Francis and Mary Dulaney, Moore & Moore, and Kennedy, to foreclose a mortgage on certain lands, executed by Dulaney and his wife, and also asserting a vendor’s lien on the land. The case made by the bill, answers and testimony was this: The lands were originally the statutory estate of Mrs. Dulaney.

Heard before Hon. H. Austill. The facts of this case were fully reported when it was here on former appeals. — See Cowles v. Marks, 47 Ala. 612, and Marks v. Cowles, 53 Ala. 499. The facts, so far as material to the question here involved, are as follows: The original bill was filed by appellant’s testator against George Cowles, and Laura, his wife, to subject certain lands to the payment of unpaid purchase-money.

<p>Appeal from Montgomery City Court.</p> <p>Tried before Hon. JOHN A. Minnis.</p> <p>The facts are contained in the opinion.</p>

Tried before Hon. Geo. H. CPAJG. The appellee, Cassen, commenced suit before a justice of the peace, against Etta Mills, to recover the amount of a bill of exchange drawn on, endorsed, and accepted by said Etta Mills, and payable to the plaintiff. Etta Mills having died pending the appeal to the Circuit Court, appellant Lea, who became her administrator, was made a party in her stead.

Tried before Hon. John A. Minnis. Appellant was tax-collector of Chambers county for the fiscal year 1875, ending September 30th, 1876, and his accounts for that year were audited, examined, and passed by R. T. Smith, the then Auditor. On this settlement it was ascertained that nothing was due the State.

Heard before Hon. H. Atjstill. The appellee, the Bishop Cobbs Orphan Home, a domestic corporation, filed this bill against the heirs-at-law of Mary Terry, deceased, to enjoin the prosecution of an action of ejectment which the latter had brought in the year 1873, against appellee, to recover certain lands which had formerly belonged to said Mary Terry, deceased. The material facts of the case are as follows: Mary Terry died in the year 1856.

Tried before Hon. John K. Henry. The appellant, Walker A. Hudson, was convicted under an indictment which charged that “ he wilfully set fire to and burned a mill, which said mill was then a grist mill, and which said mill and the property therein contained was then and there of the value of five hundred dollars, the property of W. B. Shaver and John Brown, against the peace,” &c. The State introduced one W. B. Shaver, who testified that he and John Brown were the owners of…

Tried before Hon. J. L. Powell. Joseph G. Thames died in 1863, and the appellant, his widow, filed her claim against his estate for the corpus of her statutory estate, received by him, amounting to $2,995.81. On the. first day of April, 1867, the estate of Joseph G. was declared insolvent, and on the 21st of October, in the same year, the appellant filed her claim, duly verified, against the insolvent estate.

APPEAL faom Franklin Probate Court. This was an appeal from an order made on March 2d, 1877, allowing a claim preferred by the appellee, James E. Moore, against the insolvent estate of Thomas E. Winston, of which the appellant, Lewis B. Thornton, was administrator de bonis non. Moore claimed title to the notes by purchase from the administrator of I. H. Walker.

Heard before H. A. Herbert, Esq., as special chancellor. The opinion states the case. When this bill of review is scanned, it will be seen that no error on the face of the decree is alleged. It is therefore clear that this bill is devoid of equity. The only errors alleged or complained of, are as to the effect of the evidence and the law arising thereon, in the original suit. You can not look to the testimony in the original suit, for error under a bill of review.

Tried before Hon. Harry T. Toülmin. The appellee, Mary Carr, brought this action against the .appellant, Snow, to recover the insurance on a piano she had placed with him for sale or rent, and which had been destroyed by fire while in his possession.

Tried before Hon. Geo. H. Craig. The opinion states the case. The revivor was sought more than two years after the removal. This is not authorized. All the sections on this subject are in pari matena, and should be construed together. — Pope v. Irby, 57 Ala. 105. ■ Ex parte Jones, 54 Ala. 180, is conclusive in our favor. Pope v. Irby is based on an entirely different state of facts from those here presented — the difference being fully shown in Ex parte Jones, supra.

Tried before Hon. W. B. WOOD. This was an action brought by the appellee Lizzie Copeland, as the administratrix of Alexander Copeland, against the appellant, the Memphis and Charleston Bailroad Company, to recover damages for the killing of her intestate by the cars of appellant.

Petition for mandamus. Graves and others presented their petition for habeas corpus to the presiding judge of the City Court of Montgomery in term time, and during the February term, 1879, alleging that they were illegally restrained of their liberty by the sheriff of Montgomery county, without due process of law, &c. The petitioners averred that “ they were prosecuted before the grand jury of said county at the February term, 1879, and bills of indictment found against…

Tried before Hon. James Q. Smith. The appellants, Goetter, Weil & Co., brought this action against the appellee, Pickett, to recover the amount due upon a promissory note which he executed to them. The complaint, after describing the note declared on, concludes with the averment “ that the defendant waived all exemptions under the constitution and laws of Alabama in the promissory note sued on.” The defendant filed two pleas. The first was a plea of tion assumpsit.

Tried before Hon. James Q. Smith. The appellees, Lehman, Durr & Co., brought their real action of ejectment against the appellants, Eliza Garrett, and Andrew Garrett, her husband, to recover a tract of land in the possession of appellants.

Tried before Hon. J. Q. Smith. Appellants, Munter & Faber, brought suit against Ann Reese and others, upon a bond executed by the latter to the former. The defendants demurred, the court sustained the demurrer, and plaintiffs declining to amend further, judg-ment was rendered for defendants. The nature of the ease is sufficiently stated in the opinion. The judgment on demurrer is now assigned for error.

The petitioner, Henry Jones, was convicted of the offense of gaming at the October term, 1878, of the City Court of Montgomery, and fined fifty dollars.

Tried before Hon. John A. Minnis. The appellants, Prudy Roberts and Mahala Williams, were convicted of grand larceny, for the felonious taking and carrying away of “ 32 yards of blue silk, 30 yards of black silk, 78 yards of black silk, 40 yards of blue silk strip, 13 yards of blue and gold boeretts, of the value of more than two hundred dollars, the personal property of M. P. LeGrand, against the peace,” &c. M. P. LeGrand was a merchant engaged in the dry goods business,…

Tried before Hon. James Q. Smith. Appellee, McCall, brought trover against the appellants, Steiner & Bro., for conversion of a bale of cotton. This cotton was raised in the year 1877, by one Han Harbrouski, on the lands of Martin Knox. On the 18th day of January, 1877, Dan executed his note for two hundred and fifteen dollars, to the appellee, McCall, which note contained the statements requisite to constitute a lien for advances to make a crop.

Tried before Hon. James Q,. Smith. This was an action of detinue brought by the appellee, William C. Parks, against the appellants, Moore, Waldman & Co., to recover two bales of cotton.

Appel from Circuit Court of Montgomery. Tried before Hon. J. Q,. Smith. Appellee McCall brought trover against the appellants, Steiner & Bro., for the conversion of two bales of cotton. The cotton in question was raised in the year 1877 by Albert Jefferson and Armistead Reid, upon the premises of one Green Cook, their landlord.

Heard before Hon. H. Austill. The original bill in this cause was filed by JaneE. Evans, against C. J. English, Alice English, his wife; James M. Pearson, Levystein & Simon, and sought the foreclosure of a mortgage executed by C. J. English to her on the 13th of January, 1874, on, certain horses and mules and other personal property, and the crops to be grown by him on a plantation known as the English-Pearson place, in Lowndes county. All the defendants answered.

Heard before Hon. H. Austill. The appellee, as surviving partner of the firm of Milhouse, Shields & Co., sought by his bill to foreclose a mortgage made to said firm on the 13th day of January, 1872, by Mrs. E. C. Sprague, A. M. Sprague, her husband, and S. W. Oliver, conveying a house and lot in the city of Mobile.

Tried before Hon. James Q,. Smith. Appellee, Carter, commenced suit by attachment in November, 1871, before a justice of the peace, to enforce a lien for advances to one Harvey, to enable him to make a crop for the year 1871. The attachment was levied on a bale of cotton in possession of and claimed by one Wilson, the appellant. The justice having decided that the cotton was subject to the attachment, an appeal was taken to the Circuit Court.

<p>Appeal from Chancery Court of Lowndes.</p> <p>Heard before Hon. H. Austill.</p> <p>The opinion states the case.</p>

Tried before Hon. John A. MlNNlS. The appellant, Isaac Jacobs, was convicted of perjury, on an indictment which charged that Jacobs, “in making an affidavit in an action of detinue for tbe recovery of a yoke of oxen and an ox cart, before John C. Hardwick, a justice of tbe peace in and for Montgomery county, and State of Alabama, in which I. Jacobs was plaintiff, and C. A. Cobbs was defendant, being duly sworn by the said John C. Hard-wick, justice of the peace, &c., who had…

Tried before Hon. John A. MlNNIS. This was a garnishment sued out by the appellee, Mrs. Margaret Warner, against the appellants, Lehman, Durr & Co., as stockholders of “The Alabama-Savings Bank of Montgomery,” against which the appellee, in the name of Margaret Warren, had, at the July term, 1875, of the City Court of Montgomery, recovered judgment, on which execution had been duly returned, “no property.” The affidavit made for garnishment commences as follows: “ State of…

Clair. Tried before Hon. W. L. WHITLOCK. The appellant, McFee, brought trover against Turner for the conversion of an “iron grey colt.” A trial was had in February, 1877, resulting in verdict and judgment against Turner, who reserved exceptions, and brings the case here by appeal.

Heard before Hon. A. W. Dillard. Pleiades Brown filed this bill against Francis B. James, and Samuel T. Boykin, as executors of Robert D. James, deceased, and against the widow, and legatees and devisees under the will of said Robert D. — said Francis B. being a devisee also — to subject lands devised, for payment of certain judgments, which Brown alleged were subsisting and valid claims against the estate. Brown having died pending suit, it was revived in the name of Zo.

Heard before Hon. H. Austill. The appellant, Susan W. King, filed this bill primarily to obtain dower in lands, which her husband once owned, and also to have his estate settled and distributed. Appellants own children and those of her husband by a former wife, are made defendants.

<p>Application for Mandamus.</p> <p>1. Revision of judgments in criminal eases. — The court traces the legislation and practice in this State, in regard to the revision of judgments of conviction in [criminal eases, down to the passage of the statutes now in force.</p> <p>2. Same; how judgment in criminal case may be revised. — Under the laws now in force, two remedies are available to a defendant for the revision of the judgment of conviction; each of which has a different field of operation.</p> <p>8. Same.- — -He may obtain such revision, by reserving, in the court of original jurisdiction, a question of law for the consideration of the appellate court, the reservation distinctly appearing of record; when this is done, no further act of the defendant is necessary to stipend the sentence, or to call into action the revisory jurisdiction of this court, which under the statute must take jurisdiction of the whole case, and may reverse not only for error as to the question reserved, but for any other error apparent on the record.</p> <p>i. Same; how reservation must appear. — In such case, where the question of law reserved arises on the indictment or ruling upon a plea, motion, or the like, the judgment upon which must appear of record, the reservation must be distinctly presented on the record; it is not the office of a bill of exceptions to present such matter.</p> <p>5. Same. — If the reservation is as to matter not appearing of record, the question must be presented by bill of excceptions, duly taken and signed; and whether the matter is shown by the record, or can be presented only by bill of exceptions, the reservation must be distinctly shown, and must bo made at the time of the decision complained of.</p> <p>G. Same; remedy when no question is reserved.- — When no question of law has been reserved, the defendant may obtain a revision of the judgment by common law writ of error. Such writ, however, is grantable only by this court in term time, or by a judge thereof in vacation, and then only for error of law apparent of record; though the writ when granted, operates a suspension of the judgment of conviction.</p> <p>7. Same; ivhat does not amount to a reservation. — Merely excepting to the judgment of conviction, and causing that fact to be recited in the judgment-entry, is not tantamount to the reservation of any question for the consideration of the appellate court, and furnishes no predicate for suspension of sentence, or the exercise of jurisdiction by this court under the statute.</p>

Tried before Hon. Jon. Haealson. Thomas Kelly, appellees’ intestate, recovered judgment against Moody H. May, as administrator de bonis non of Robert Carlisle, deceased, for the sum of $525. Execution issued on the judgment, to be levied of the goods and effects in May’s hands to be administered, was returned, no property found; thereon, execution was issued against May to be levied de bonis propriis, which was returned, no property found, on the 19th day of April, 1874.

Heard before Hon. H. Austill. The appellants, Marcus Munter and Henry Faber, composing the firm of Munter & Faber, filed this bill, in August, 1875, against the appellee, Charles Linn.

Heard before Hon. CHARLES TURNER. The appellant, Celestine Eslava, filed her bill against W. F. Stoutz, A. E. Buck, Manuel Primo and O. L. Crampton, the appellees, and sought to enjoin a threatened sale of certain property by O. L. Crampton, under mortgages executed to him by appellant. The bill charged that the appellant, some time in the year 1870, commenced borrowing money from Wm.

<p>Real Action for Recovery of Lands.</p> <p>1. Grantee, what sufficient description of. — The grantee in a deed must be so described that he can be certainly known; but a deed to the heirs of a named deceased person is sufficient and will pass the legal title; for the persons who are to take, can be identified by extrinsic testimony.</p> <p>2. Code, seotion-HB48 of; construed. — Tbe purpose and scope of section 2948 of the Code, are to dispense with a seal as an essential element of a legal conveyance of lands, and to leave the sufficiency of every written instrument for that purpose, when executed in the prescribed mode, dependent on tbe intention of tbe grantor to be collected from the terms of the whole instrument; it was not the intention of the statute to blot out all the common law principles, which, for the security of the titles to real estate, required greater solemnity in the execution of such conveyances, than in the case of mere simple contracts not under seal.</p> <p>3. Same.- — Though a seal is not now essential to a conveyance of the legal estate in lands, the conveyance retains all the operation and effect of a sealed deed at common law, and the estoppel arising at common law out of the recitals or covenants of a sealed instrument, still attaches to the unsealed conveyance, executed according to the requirements of the statute.</p> <p>4. Same; effect of, as to deed by agent. — The statute has not changed the common law rule, that a deed executed by an agent, to be valid and binding upon the principal, must, with certainty, appear to be the deed of the principal, ana must be made and executed in his name; and since the statute, as at common law, a deed by a agent, which grants and covenants in the name of the agent alone, is not at law a valid execution of the power, and will not pass the legal title; though equities may arise thereby which a court of equity will protect.</p> <p>5. Will, construed. — Testator died seized of certain lands, leaving two sons legatees and devisees under the will, which was duly probated. The will devised and bequeathed to each of the sons, John and James, one-half of the estate real and personal, for the term of their natural lives, with provision that if either died before arriving at age, or without lawful issue, the estate should go to the surviving brother. The will further provided, that the portion of the estate which shall be allotted to John, should “be sold by his guardian according to law, (the will not nominating any,) and the funds placed at interest.” The executors named in the will, qualified, and they were appointed guardians of John, by the Probate Court. The executors under order of the Probate Court, purchased lands of one Broxon, pursuant toa parol contract made by the testator, taking title to the heirs as such. John, afterwards died intestate of full age, without lawful issue._ The guardians, without order of any court, sold all the right, title and interest of John in all the lands, — held,:</p> <p>1. The will did not authorize the guardians to sell the interest or share of John in the Broxen lands.</p> <p>2. Their sale of John’s interest in the lands devised was als void — the will contemplating a sale only after division, and then under o rder of a court of probate or equity.</p>

Tried before Hon. James Q,. Smith. The appellee, James Chappell, brought this action against the appellant, the South and North Alabama Railroad Company, to recover damages for personal injuries received by falling into a ditch which appellant dug in the streets of Montgomery, and negligently left unguarded. The complaint contained two counts.

Heard before Hon. H. AUSTILL. The appellant, Bunberry Flinn, filed this bill, on the 29th day of March, 1876, against Mrs. M. L. Barber, John G. Barber, and Josephine Flinn, to enforce a vendor’s lien for the unpaid purchase-money. Mrs. Barber, before her marriage with her present husband, had been married to Watson Flinn, a son of appellant, and Josephine was a child of her first marriage.

Tried before Hon. James Q,. Smith. This was an appeal by the Montgomery Gas Light Company from an order refusing to stay execution on a judgment wliicb Merrick & Sons obtained against it, in tbe said Circuit Court. It appears from the bill of exceptions, that on the-day of December, 1870, tbe appellant was garnished by Mrs. M. E. Winter, in a suit in the Chancery Court of Montgomery, against Merrick & Sons, to whom the Gas Light Company was indebted.

Tried before Hon. H. T. Toulmin. This is an appeal by McArthur from an order of the Circuit Court quashing an execution in his favor against Dane. It appears from the record that on the eighth day of March, 1875, McArthur recovered a judgment in an attachment suit against one Blodgett in the Circuit Court, for the sum of’ $344.62 costs.

Tried before Hon. John K. Henry. This was a real action in the nature of ejectment, brought by the appellants, J. D. Alexander, A. C. Davidson, F. M. McNeil, and J. T. Hollis, against the appellee, J. Decatur Caldwell, on the fifth day of February, 1878, to recover a tract of land, which appellee once owned, but which had been sold and conveyed to appellees under a power in a mortgage executed by Caldwell.

Tried before Hon. James Q,. Smith. The appellant, Samuel Tyson, brought this action against the appellee, the South and North Alabama Railroad Company, to recover damages for personal injuries sustained while in its service, by reason of the negligence of defendant in appointing as engineer one Lovelace, an incompetent and unfit person, by whose carelessness and unskillfulnessplaintiff’s leg was caught and injured while engaged in coupling cars.

Tried before Hon. John K. Henry. The appellees, Steiner, McGehee & Co., brought this action against the appellant, the Mobile and Montgomery Railway Company, on the 14th day of February, 1876, to recover certain penalties which the complaint alleged the railway company had incurred, at various times, between the 21st day of April, 1875, and the 1st day of December of that year, by violating the provisions of the second section of “ an act regulating the charges for…

Petition for a prohibition to the Chancery Court of Madison county. Held: invested, and managed, it under provisions in the will, with authority to pay, only the net income, to testator’s daughter, or to her husband, if she should marry. She was married to petitioner, who resided in New York, and a few months afterwards died childless and intestate.