Volume 62 — Alabama Reports

<p>Application for Mandamus,</p> <p>3. Set-off; what not subject of. — When exempt property claimed as such, is sold under execution against the owner, who thereon obtains judgment against the sheriff, and those indemnifying him for a conversion, the defendants cannot set-off against it, under the provisions of section 2993 of the Code, a judgment in their favor in the same court, against the owner of such exempt property ; for if this were allowed, a creditor without right to subject such exempt property could do so in fact, and devote the proceeds of the sale to the payment of the debt, overruling the constitution and statutes, and escaping liability therefor, by the machinery of a set-off.</p>

Tried before Hon. Henry D. Clayton. Tbe appellant, Neal Hutchinson, was tried and convicted of carrying a pistol concealed about his person. On the trial it was shown that the cylinder of the pistol was taken apart from the barrel, and while thus separated, the-appellant carried the pieces concealed about his person. It was shown that the pistol could not be fired, either by the .lock or by a match, at the time it was put in the pocket of the appellant.

<p> Motion to compel Sheriff to Pay taxes on Property sold under Execution. </p> <p>1. Code of 1876 ; § 419 of, construed. — Section 419 of the Code, which makes it the duty of a sheriff selling property under a levy, to ascertain what taxes are due upon the property, or by the owner thereof, and upon a sale, to pay the taxes found due to the tax collector of the county, &c., is not a remedial statute, and cannot be extended by construction, beyond the plainly expressed intention of the Legislature.</p> <p>2. Same. — The statute has no application to taxes due to, and collectable by a municipal corporation, but relates only to State and county taxes.</p>

Tried before Hon. Louis Wyeth. Tbe appellant was indicted, under tbe name of Henry Evans alias Henry Bounsiville, for tbe murder of one Foster. Tbe indictment contained two counts, tbe first of which charged that appellant unlawfully and with malice aforethought, killed Mack Foster, by cutting him with a knife; and the second count is identical with tbe first, with tbe exception of tbe name of tbe party killed, which is averred to be Mack Foster alias Anthony McKendry Foster.

Tried before Hon. Henry I). Clayton. The appellant, Bob Cotton, was convicted of living in adultery with one Martha Cox, who was jointly indicted and tried with him. On the trial the court permitted the husband of said Martha to testify against him as a witness for the State, against the objection and exception of the appellant, and this ruling is now assigned as error.

Heard before Hon. H. C. Speake. The facts are thus stated by Mr. Justice Manning: Complainant, Clay, being recently appointed successor to an administrator de bonis non of the estate of Clement N. Yincent, deceased, by the Court of Probate of Madison county, filed tbe present bill, May 6, 1877, against the administrators in chief, and the former administrator de bonis non, Frank B. Gurley and his sureties, and against purchasers of land of the estate, at sales thereof…

<p>Arpe at, from Pike Chancery Court. Heard before Hon. H. Austill.</p> <p>The opinion state the facts.</p>

Tried before Hon. John Henderson. The appellant, Matt Lucas, was convicted of tbe larceny of a horse. One Jones, a witness for the State, testified that he was in Eockford, Coosa county, Alabama, and early in the morning saw the defendant ride into that place on a fine mare ; that he suspected the horse was stolen, and he asked defendant where he was going, to which defendant replied that he was going to Col. Glidden’s Iron Works in Talladega county.

<p> Beal Action in Nature of Ejectment. </p> <p>1. Title to land; what writing ineffectual to pass. — An instrument of writing not attested by any subscribing witness, nor proved or acknowledged before a proper officer, is ineffectual to pass the legal title to land, and cannot be made the basis of recovery or defense in an action of ejectment.</p>

Tried before Hon. William L. Whitlock. The appellant, under the name of James Henry Smith, was indicted at the Spring term, 1878, of the Circuit Court of Cleburne county, for using vulgar and abusive language in the house of John S. Turner, and in the presence of females.

Heard before Hon. H. Austill. This was a bill filed by the appellants, Lehman Brothers, against the appellees, Bhoda C. Bradley et al., and seeks to subject certain land now in possession of the appellees, who are heirs at law of one Craig, or the alienee’s of the heirs, to the payment of a debt due by said Craig, to whom the lands formerly belonged, and who had died intestate without disposing of them.

<p> Amendment Nunc Pro Tunc. </p> <p>1. Amendment nunc pro tunc; what evidence necessary to support. — After the expiration of the term at which judicial proceedings are had, an amendment nunc pro tunc of the minutes can only be made upon sufficient evidence from the records or dockets, or memoranda made under the authority of the judge presiding when they were made, showing that the proposed amendment should have been made then.</p> <p>2. Same; what evidence will not authorize. — An amendment nunc pro tunc of a decree on a settlement of an administration, so as to show the due appointment of a guardian ad litem for minors, and his acceptance in writing and acting tor the minors, can not be allowed after the expiration of the term at which the settlement is had, when the only evidence adduced in support of the motion is that ot the presiding judge, who does not testify positively as to any record of the appointment or written acceptance; and that of the administrator, who does not testify to the existence of the order of appointment or written acceptance thereof, or its loss, but only that a person who appeared at the settlement, was notified verbally by the judge, in the administrator’s presence, that he was appointed guardian ad litem, and that such person appeared on the settlement and scrutinized the accounts. Such evidence does not prove the former existence or loss of any memoranda of record, showing the facts which it was proposed to insert in the amendment nunc pro tunc.</p>

<p> Bill in Equity to set aside Conveyance. </p> <p>1. Conveyance; who can assail — To entitle a party to assail and avoid a conveyance, on the ground that it is fraudulent as to creditors, complainant must show, among other things, that he was a creditor of the grantor, at or before the making of the conveyance.</p> <p>2. Judgment; what not evidence oj. — The record of a judgment recovered against the grantor after his execution of a deed to another, is not evidence as to such grantee, to show an indebtedness prior to its rendition.</p>

Appear from Jackson Circuit Court. Tried before Hon. Louis Wyeth. This was an attachment sued out before a justice to enforce a debt due by the appellee, Houtz, to the intestate of appellant, O. W. Hunt. Judgment was rendered subjecting the cotton levied on as the property of Houtz. White, the other appellee, obtained a certiorari and removed the cause to the Circuit Court. The petition for certiorari averred that White was claimant before the justice.

Tried before Hon. Henbx D. Claxton. This was an action of detinue, brought by the appellant, Samuel Shiver, against the appellee, W. T. Johnston, to recover certain personal property. On the trial, it was shown the property had been mortgaged by the appellee to appellant ; that the mortgage was past due, and that the property was in the possession of the appellee.

Tried before Hon. W. B. Wood. The appellee, A. W. Walker, commenced this action before a justice of the peace, against the appellant, C. W. Lemay, as the executor of Harriet Boothe, deceased. Judgment having been rendered against the appellant, he appealed to the Circuit Court.

Tried before Hon. Henry T. Toulmin. The appellee, Emeline M. Williams, brought this action against the appellant, Herman Gans, to recover the possession of certain cattle. It was shown that the property sued for was the progeny of cattle which had been purchased with moneys belonging to the statutory separate estate of the plaintiff.

Tried before Hon. George H. Craig. Tbe appellees, A. Sulzbacher & Bro., having obtained two judgments against the appellant, T. A. Hardy, before a justice of the peace, and executions issued thereon having been levied on certain lands belonging to him, amounting to one hundred and fifty-five acres, moved in the Circuit Court for an order to sell said lands. Hardy appeared and filed his claim to the land as exempt as his homestead.

Tried before Hon. Henry D. Clayton. The appellee, Rhoda Claxton, brought this action against tbe appellant, Robert Harper, to recover one hundred and fifty dollars. Tbe complaint originally contained four counts, but was amended by striking out all but tbe first count, which was a count for money had and received. Tbe other counts were for the failure to carry out a contract for the purchase of a horse.

Tried before Hon. Henry D. Clayton. The appellee, Lucius A. Russell, sued the appellant, W. Frank Russell, before a justice of the peace, for the sum of ninety dollars, “ as damages for the conversion by him, on tlie......day of.........., of the following chattels : Four hundred and fifty bushels of cotton seed, and fifteen bushels of corn, the property of the plaintiff.” Judgment having been rendered against the defendant, he appealed to the Circuit Court, when the…

William: L. Whitlock. The facts are stated in the opinion. It is admitted by the State that there is no bard labor system in Cherokee county; that the prisoner is confined, under the sentence of the court, to bard labor in the county jail, and that no steps have been taken to “ hire out ” the prisoner.

Tried before Hon. L -uis Wyeth. This was a suit brought by appellant, Benjamin E. Bean, as tbe administrator de bonis non of tbe estate of Lawson Garner, deceased, to enforce the payment of a certain bond executed by one B. L. Lakin, as principal, with tbe appellees, Beuben Chapman and Septimus B. Cabaniss as his sureties, on the 27th day of January, 1860, and payable to appellant’s intestate twelve months after date. Lakin is not sued in this action.

This was a motion for a mandamus directed to the Circuit Court of Henry county, compelling that court to render judgment in a certain cause pending therein.

Tried before Hon. Louis Wyeth. The appellee, David M. Lyon, brought this action against the appellants, the Memphis & Charleston Bail Boad Company, to recover damages for the killing of a mule by the cars.

Tried before Hon. Henry D. Clayton. This was a real action under the Code, brought by the appellee, J. P. Blue, against the appellant, Thomas Cauly, to recover certain lands. The appellee claimed title by virtue of a sheriff’s deed to the premises, and to support this deed he offered in evidence a judgment rendered in his favor in a suit against Bobert J. and Delila Blair.

<p>Appeal from order of Circuit Judge that mandamus issue to Begister in Chancery.</p> <p>The opinion states the-case.</p>

Tried before Hon. John K. Henry. The appellees, Mary Roberts and others, brought this action against L. D. G. Smith and his wife, to recover the possession of certain premises in the city of Greenville, Alabama. The case was tried on the pleas of the general issue and the statute of limitations of ten years, and resulted in a judgment for the plaintiffs.

Tried before Hon. Henry D. Clayton. This action was brought by the appellants, T. M. Borland and L. McLung, against the appellees, S. A. Box and J. A. Garrard, and is founded on a promissory note, of which the following is a copy: “ 364.72.

The opinion states the case. The certiorari in this cause was a common law certiorari, and the only judgment which the Circuit Court could render was one affirming or quashing the proceedings of the Commissioners’ Court. The action of the Circuit Court, in this instance, was strictly appellate and revisory. — 2 Brick. Dig. 401, § 19; 20 Ala. 54. The court was without jurisdiction to hear or determine the application for a new trial, and its judgments are coram non judice.

Heard before Hon. B. B. McCraw. This was a bill filed by tbe appellee, Kate Carter, by next friend, against tbe appellants, E. Troupe Randle, Mary A. Randle, and others, who are respectively tbe administrator, lieirs-at-law, and tbe creditors of James E. Carter, deceased.

Heard before Hon. H. C. Speake. This was a bill filed by the appellee, Sam’l J. Harrington, as the executor of Benjamin Wilson, against the appellants, Jane L. Norman and Eelix G. Norman, her husband, and sought to subject certain lands then in the possession of appellant, and claimed as part of her statutory estate, to the payment of certain notes made by the appellants to his testator.

This was a motion by the appellant, James E. Mason, in tbe Probate Court, to revive a judgment rendered in said court against tbe appellee, James M. Buchanan, as tbe administrator de bonis non of tbe estate of bis father, Winfield S. Mason, and in fayor of one B. W. Mason as tbe guardian of appellant, wbo was then a minor. Tbe motion alleged that tbe decree rendered on tbe settlement was wholly unsatisfied and still in full force.

Tried before Hon. Henry D. Clayton. The appellants, B. Mayberry & Co., at the Spring term, 1876, recovered a judgment against one Wechsler, and, on tbis judgment, they sued out a writ of garnishment, which was served on the garnishee on the 21st of March, 1876, who answered admitting an indebtedness, evidenced by certain bills of exchange, made payable to their order, and by them endorsed in blank, and delivered to Wechsler.

Tried before Hon. Lewis Wyeth. This was a bastardy proceeding, commenced against the appellant, John Martin, before a justice of the peace, by one Cynthia. C. Barnes. The justice having found appellant to be the father of the bastard, bound him over to appear at the next term of the Circuit Court.

Heard before Hon. H. Austill. The appellees, Yoss, Taylor & Co., filed this bill against the appellant, Mary Ann Miller, and sought to foreclose a certain mortgage executed by the appellant and her husband to A. A. Yoss and Peter Hawes, and by them transferred to W. H. A. Yoss, and by him transferred to appellees. The appellant deduced title to the premises in question by deed to her from one Peter Odermott and Rosanna Odermott, his’wife.

<p> Action on Tax Collector's Bond. </p> <p>1. Act of April 19, 1873; second section of, construed. — The act to keep in each county a proportionate share of the public school money, approved April 19, 1873, by its second section required the tax collector of each county to pay over, at the end of each month, to the county treasurer, all poll taxes collected during the month, taking the county treasurer’s receipt, or duplicate, approved by the probate judge, &c., which shall be received as cash in his settlement with the Auditor. The same act, in another section, provided that, before any money should be paid to the county treasurer, he should increase his bond to such an amount as shall be authorized by the superintendent of public instruction.</p> <p>The tax collector, as required by the second section of the act, paid over to the county treasurer, at the end of each month, the poll taxes collected during the month, taking the receipts prescribed by that section, without any knowledge that the treasurer had not increased his bond.</p> <p>Held: Although as between the treasurer and the sureties on his general bond, the latter were not liable for payment of poll taxes made to the treasurer before increasing his bond, as required by the act, yet the failure of the treasurer to give such increased bond, without more, did not, propio vigore, vacate his office, and he still remained an officer de jure; and the statute not imposing upon the tax collector the duty of ascertaining whether such increased bond had been given, he had the right to presume that the authority charged with exacting such bond, had properly performed its duty, and in the absence of information to the contrary, was discharged by payments of poll taxes made in good faith to the county treasurer; though under the inconsistent provisions of the statute, the treasurer, as between himself, his general sureties and the State, could not rightfully receive payment of such taxes until he had given the increased bond.</p>

Heard before Hon. B. B. McCraw. The opinion states the ease. It is enacted that no trust concerning lands, except such as results by implication or construction of law, or which may be •transferred or extinguished by operation of law, can be created, unless by instrument in writing. — Rev. Code, § 1590. By this statute, all trusts are prohibited which do not result from operation of law; from certain facts being shown to exist, and independent of any agreement.

Tried before- Hon. William L. Whitlock. The appellants were tried and convicted for failing to keep in repair a certain road or street in the town of Anniston, they being the corporate authorities of said town. The facts as to the situation and condition of the road which was suffered to remain out of repair, are fully stated in the opinion.

Tried before Hon. James E. Cobb. The appellant, Silas Dotson, was tried and convicted of bigamy.

Heard before Hon. William Skinner. The opinion states the case. — The legislature has the undoubted right to transfer tbe administration of an estate from tbe county of tbe decedent’s residence. — >Tindal v. .DraJee, 60 Ala. 170, and authorities cited. If tbe bill is defective iu averment, such defect should have been pointed out by demurrer in tbe court below, specifying the precise ground of objection.

Tried before Hon. John Henderson. Tbe appellant, Claiborn McAdory, was convicted of tbe burning of a gin-house of one Patrick J. McAdory, of the value of four hundred dollars. ' P. J. McAdory, as a witness for tbe State, testified that bis gin-house, situated in Coosa county, Alabama, and worth, with tbe contents, more than five hundred dollars, had been burned up on tbe night of tbe 17th of December, 1876; that be went immediately to tbe fire on being aroused, and that be…

<p> Indictment for Aiding Felon to Escape. </p> <p>1. Witness; competency of. — Section 2302 of the Code of 1852, which changed the common law' disqualification of witnesses, except in cases of perjury, &c. leaving the conviction as a matter directed to the credit of the witness, was omitted from subsequent revisions of the statutes ; and being a law of a permanent and general nature, its omission under the provisions of the subsequent Codes, worked its repeal, leaving the common law rule as to the competency of witnesses in full force, except as altered by legislation.</p> <p>2. Same. — At the common law, a person duly convicted of burglary, or grand larceny, was rendered infamous, and our statutes not having changed the common law rule, such person is not a competent witness.</p> <p>3. Board of Bevenue of Montgomery; what best evidence of proceedings of.— The “ Board of Bevenue of Montgomery, ” is an inferior jurisdiction, required by statute to keep a record of its proceedings, and to appoint a clerk, who is keeper of its records. It has authority to hire out convicts sentenced t o hard labor ; and where a person deduces his authority to the custody of a convict from a contract with the Board, a transcript from its records, duly certified by the clerk, is the best mode of proving the exercise of its power.</p>

Tried before Hon. W. B. Wood. The appellant, Lee Pinckard, Sr,., was tried and convicted under an indictment which charged that he “feloniously took and carried away one hundred and fifty pounds of cotton, being a part of the outstanding crop, and of the value of more than five dollars, the personal property of Wm.

Tried before Hon. James E. Cobb. The appellant, Dick Hill, was tried and convicted of giving liquor to one Robert Whitten, a minor. It was shown that on an election day, whiskey bad been provided for election purposes, and the appellant bad charge of, and permission to drink and give away the whiskey. While drinking, the'minor asked him for a drink, and he gave it to him. There was evidence that the appellant was very drunk at the time.

Tried before Hon. H. D. Clayton. The appellant, Henry Rogers, was indicted for the murder of one James P. Brazeale. The material facts may be thus stated : On the 26th day of August,§1876, one T. E. Heard, a justice of the peace, issued two warrants of arrest for the appellant, one of them for an assault with a gun, and the other for an assault with intent to murder.

Tried before Hon. Henry D. Clayton. This was an action brought by the appellee, E. B. Wood, against the appellant, James M. Nelson, to recover damages for the conversion of a certain promissory note.

Tried before Hon. James E. Cobb. The appellants, Joshua Adams and Crosby McIntosh, were jointly indicted, tried and convicted for the burning of a crib. The indictment averred that it was the property of one Caleb N. Williams.

■ , Tried before Hon. John Henderson. The appellee, Newton J. Skaggs, brought this- action against the appellants, Herring, Farrell & Sherman,‘to recover damages for the breach of a warranty of a safe, sold by them to him. / The safe was purchased from one Stewart, as the agent of appellants.

Tried before Hon. Alpheus Baker. This was an action of detinue, brought by the appellant, Mina Stern, against the appellees, Simpson & Johnson, to recover the possession of a certain bale of cotton.

Tried before Hon. James Q. Smith. Tfie appellant, George Walton, was convicted of selling spirituous liquors to one George W. Butler, a person of known intemperate habits.

<p> Settlement of Estate in Probate Court. </p> <p>1. Will; c-onslrued. — A died leaving a will which contains the following clause : “ Whereas I have heretofore given to my sons B. B. Whorton and J. M. Whorton, and to my daughters Louisa, (Mary Moragne heirs, eighteen hundred dollars only,) property worth, in my estimation, two thousand dollars each. Now I will and devise that my wife Elizabeth pay to each of my other children tho said amount of two thousand dollars each, as thoy become of ago or marry, and to the heirs of Mary Moragne two hundred dollars to make them equal. And I further will and bequeath any property remaining after the decease of my wife, of all kinds and descriptions, to be equally divided between my children, share and share, equal and alike.” Appellant and the widow of testator were appointed and qualified as executors of his will. Soon after his death lhe whole of his realty, and the bulk of his personalty, passed into the possession and exclusive control of his wife, who retained the same until her death, some fourteen years afterwards, paying off the legacies, charges upon his estate by the will. After her death, the appellant, as surviving executor, took possession of tho property, and, under orders of the probate court, sold it for division.</p> <p>Held: 1. That under this will the -wife of tho testator took the absolute property in tho estate, real and personal.</p> <p>2. That after tho death of the wife, the appellant was without authority to sell tho land or personalty; and that orders of sale for division made by the probate court on his application as executor, were invalid, conferring on that court no power to hold him accountable as executor for moneys arising from sales made under such orders.</p> <p>2. Heithmenis of executors; jurisdiction of probate court over. — As to the settlement of the accounts of an executor, the jurisdiction of tho court of probate is purely statutory, and in its exercise the court is regarded as an inferior court of limited and statutory, not of general jurisdiction.</p> <p>3. Jurisdiction of court; when open to inquiry. — The jurisdiction of a court over the subject matter, is at all times open to inquiry, either on appeal or when the judgment rendered is collaterally assailed; and no consent, laches, or solicitation of the parties can cure such a defect.</p> <p>4. Me of personal property of decedent; jurisdiction of probate court to order, on application of executor.^-The court- of probate has no jurisdiction to order a sale of personal property at the instance of a personal representative, unless the title in him, which devolved upon him at the death of his testator or intestate, still remains in him.</p> <p>5. Legacy ; assent to by executor, how may be shown. —The law does not require that the assent of the executor to a legacy be given in any particular form ; it may be expressed in words, accompanied by a delivery of the thing bequeathed/ or it may be implied from conduct consistent only with an intention to surrender to the legatee the title and control; and where the property devised is allowed by the executors to remain in the undisturbed possession of the legatee, who is also one of the executors for thirteen years, the presumption of assent will be made.</p> <p>7. Probate Court; jurisdiction to order sale of lands of decedent for division on application of executor. — The jurisdiction of the court of probate to order a sale of lands on the application of a personal representative is statutory and limited, and when the ground of jurisdiction is a necessity for a division among heirs or devisees, the condition of the lands as to title must remain the same as it was at the death of the testator or intestate.</p> <p>7. Same ; when without jurisdiction to make order for sale of lands devised. Where, by the will, the testator devised his lands and the executors assented to the legacy, the Probate Court is without jurisdiction on the application of the executor to render orders of sale for the purpose of divisions, or to hold the executor responsible for money received from the sale of lands made under such orders.</p>

<p>Appeal from Pike Circuit Court.</p> <p>Tried before Hon. Henry D. Clayton.</p> <p>The opinion states the facts.</p>

Tiled before Hon. John A. Minnis. This was an application by the appellant, D. A. Moniac, for a mandamus to compel the appellee, Hon. Willis Brewer, State Auditor, to draw his warrant on the State Treasurer in favor of relator for the amount of fees alleged to be due him as sheriff of Baldwin county.

Tried before Hon. James E. Cobb. The appellant, Van McDowell, was indicted at the Eall term, 1878, of the Circuit Court of Chambers county, for removing mortgaged property, of the value of sixty dollars.

Tried before J. Little Smith, Esq., Special Judge. The appellants, Sailer Lewin & Co., having obtained a judgment against one B. R. Levy, sued out process of garnishment against the appellees, The Insurance Company of North America. This garnishmenl was served on the 11th day of March, 1876. This process was returnable on the first Monday in April, 1876, at which time the garnishee failed to answer, and a judgment nisi was taken against it.

Tried before Hon. W. L. Whitlock. The appellant, Albert H. Boss, was indicted for an assault with intent to murder, committed on one John Yoe.

Aureal from Henry Circuit Court. Tried before Hon. Henry D. Clayton.

Tried before Hon. G. H. Cbaig. The appellant, Balaam Grant, was convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary for eighteen years, for the murder of one Ed. Williams.

Tried before Hon. Luther B. Smith. The appellant, O tesar Polk, was convicted of carrying concealed weapons.

Tried before Hon. George H. Craig. The appellant, Frank Martin, was tried and convicted of an escape from hard labor, to which he had been sentenced. On the trial, the State introduced the record of his former conviction and sentence, for burglary, to hard labor for the county, for the term of two years and a sufficient length of time, in addition, to pay the costs.

Tried before Hon. Luther R. Smith. Tbe original suit in this cause was commenced by the appellee, A. S. N. Eew, against one Kirksey, and was founded on an indebtedness of Kirksey & Carpenter, a firm of which Kirksey had been a partner, and of which he was then the assignee in liquidation, and a judgment was thereon rendered against Kirksey.

James E. Cobb. The appellant was indicted for the murder of one Henry Lett, and' the list of jurors for his trial, which was duly served on him, contained the regular jurors for the week. In drawing the jury for his trial, the third name and others were those on a regular jury then engaged in the trial of another cause. The judge ordered the names of these jurors, as they were drawn, laid aside, and that others be drawn in their stead.

James Q. Smith. This was an application for a mandamus to compel the Circuit Court of Montgomery county, Hon. J. Q. Smith presiding judge, to enter up a proper judgment upon the verdict of a jury, and to vacate and annul the judgment entered. The facts necessary to the decision, are as follows : Schmidt & Smith, the relators, were partners and dealers in building materials in the city of Montgomery.

Heard before Hon. A. W. Dillard. This was a bill filed by the appellees, S. and A. Brown, against the appellant, Margaret A. Hooks, and seeks to subject her interest in certain lands, to the payment of a joint note made by her and her husband, who had since died insolvent.

Tried before Hon. Vs. S. Mudd. This was an action by the appellee, Thomas B. NeSmith, as the administrator de bonis non of the estate of Isaac May-field, against the appellants, Peyton Burnett and Thomas J. Hogan, as the administrators of the estate of George Brown, and seeks to recover from the administrators of Brown the amount of a devastavit committed by George Cannon, as administrator in chief of the estate of said Mayfield, said Brown being one of Cannon’s sureties.

Tried before Hon. George H. Craig. This was an action on an attachment bond, commenced by the appellee, Charles H. Mansfield, against the appellants, Alfred W. Higgins and the sureties on the bond. The complaint claimed damages for the mere wrongful suing out of the attachment, and also vindictive damages for its vexatious suing out. The case was tried on the plea of the general issue.

<p> Bill in Equity to establish Devastavit and hold Sureties of Administratrix liable. </p> <p>1. Bond of co-executors, to whom sureties on, not liable. —Two or more executors or administrators entering into a joint bond lor the faithful performance of their duties, are liable for the acts and defaults of each other, unless the bond itself shows that they did not intend to become so bound, and they and each of them come under the obligation to hold their sureties harmless against loss by any default on the part of either of the principals; and though one or more of the executors dies, the bond remains a security for the performance of duty by the other, unless proper steps are taken to have the bond made inoperative for future defaults.</p>

Heard before Pión. Charles Turner. The original bill in this case was filed by the appellees, Webb and Beck, against the appellants, C. W. & J. B. Lovelace, and George Junkins. The defendant Junkins filed a cross-bill, and the appeal by him is from the decree rendered thereon.

Heard before Hon. H. Austill. This was a bill in equity filed by the National Commercial Bank of Mobile against the Mayor, Aldermen & Common Council of the Oily of Mobile, and W. H. Sheffield, its tax-collector, seeking to enjoin the collection of a tax, which the corporate authorities assessed upon the shares of the capital stock of the bank in gross.

<p>Appeal from Macon Circuit Court.</p> <p>Tried before Hon. James E. Cobb.</p> <p>The opinion states the facts.</p>

Tried before Hon. James E. Cobb. The appellant, M. H. Harris, commenced tbis action against the appellees, M. B. Swanson & Brother, to recover the statutory penalty for their failure to enter satisfaction on the record of á mortgage, for more than three months after payment and request to enter satisfaction.

<p> Action on Account. </p> <p>1. Rulings of leaver court; what not reuisaWe. — The appellate court will not revise rulings of the primary court upon motions for the continuance of causes, or motions to set aside judgments and grant new trials.</p> <p>2. Rules of practice ; what proper. — The circuit court may properly make a rule requiring written pleading in causes then pending for trial, to be filed with the clerk by the first day of the next term, and in all suits thereafter brought within the time prescribed by law for pleading, and in event of a failure thus to plead, that judgment by default or nil elicit should be rendered, on motion of plaintiffs, disregarding “pleas in short by consent,” unless written consent be endorsed and filed with such pleas.</p>

Tried before Hon. James E. Cobb. The appellee, William G. Adams, brought this action against the appellants, Renfro & Andrews, to recover the statutory penalty for their failure to enter satisfaction, on the record, of a mortgage made by him to them, for more than three months after the payment of the debt secured thereby, after demand, &c. The complaint “claims of the defendants the sum of two hundred dollars due from defendants to plaintiff by reason of a failure on the…

Tried before Hon. John Henderson. This was an action, commenced before a justice of tbe peace by the appellee, Susan A. Pilgreen, against the appellant, the South & North. Alabama Eailroad Company, to recover tbe value of certain cattle alleged to have been killed on the road of appellant.

<p> Settlement of lístate in Probate Court. </p> <p>1. Dower ; what excludes wife from. — At the common law. gifts or clevises to the wife by the husband, did not operate to exclude her dower, unless such intent was expressed or the incompatibility of dower and the gift or deviso was clear or manifest; but our statutes have changed this common law principle, and the presumption now is, that a gift, bequest or devise to the wife is intended to exclude her not only from dower, but the share of the personal estate to which she is entitled under the statutes of distributions, unless the contrary is expressed or clearly appears from the will.</p> <p>2. Dissentjrom will; effect of'under the statutes. — Under our statutes, the effect of the widow’s dissent from the provision made for her in the husband’s will is to blot them out of the will, and leave them as if from death or any other cause she had become incapable of taking ; and whatever she renounces, of necessity results to the indemnity of those who are injured by her renunciation.</p> <p>3. Will; construed. —Testator, by will, devised and bequeathed all his estate to his wife and infant daughter jointly, and on the death of either, the survivor to take the whole, and on the death of both, remainder to the legal heirs of the daughter. The wife dissented from the will, and elected to take dower and share in his personal estate, as though testator had died intestate. Betel — 1. The daughter became entitled to the remainder of the estate for life, taking a life estate only, and her legal heirs take at her death by purchase and not by descent. 2. The probate court cannot order money in the hands of the testator’s personal representative to be paid over to her and discharge him from liability ; a court of equity alone has jurisdiction to give the daughter the option of taking the money, upon proper refunding bond, or to loan it on interest, the interest being paid to her annually during life.</p>

Tried before Hon. Peter M. Rowland. James E. Reese, tbe husband of the appellee, Lucy A. Reese, died on the 2d day of July, 1876, and at the time of his death, was a resident of Chambers county, in this State. He was childless, and he left personal property valued at four thousand dollars, consisting mainly of notes and accounts. The appellant, W. C. Darden, was the administrator de bonis non of liis estate, which was then being administered in the Probate Court.

<p> Action on Promissory Note. </p> <p>1. Promissory note; what will not defeat recovery on. — The purchaser at an administrator’s sale of land, cannot defeat a recovery on the purchase-money notes, or rescind, because a person interested in the estate, but with whom the administrator had no connection, employed a person who was obnoxious to the purchasers to bid against them, by reason of which and the desire of the purchasers to keep such person out, the purchasers bid more than the value of the land.</p>

Tried before Hon. Louis Wyeth. This was an action of trespass quare clausum fregib, brought by tbe appellant, John. M. Lankford, against the appellee, Anthony B. Green, to recover damages for a trespass upon a certain piece of land. The summons in the case was executed on the 2d day of February, 1871.

<p>Appeal from Russell Circuit Court.</p> <p>Tried before Hon. W. B. Wood.</p> <p>The opinion states the case.</p>

<p> Bill in Equity for Injunction. </p> <p>1. Decree; what can not he supported.-^-h. decree in equity, materially affecting the right and interests of infant defendants, can not be supported, when assailed on error, unless the record affirmatively show's that they were brought before the court in the mode prescribed by the rules of practice, and that a guardian acl litem had been regularly appointed to represent and defend them.</p> <p>2. Same; what will not uphold —The appearance and answer by a guardian ad litem, recognized by the court, if the guardian ad litem comes in without' appointment, or under an irregular appointment, or under an appointment prematurely made, because service had not been perfected on the infant defendants, can not uphold the decree.</p>

Tried before Hon. Luther R. Smith. The appellee, Elijah S. Thompson, as tbe administrator of Duncan Hunnicutt, deceased, brought this action against tbe appellants, John D. Steele, and others, wbo were the sureties on the official bond of James A. Steele, as Clerk of the Circuit Court of Greene county, to recover tbe damages caused by tbe failure of said James A. Steele to issue an alias execution against one Kirksey and others, after request, «fee.

Heard before Hon. A. W. Dillard. This was a bill filed by the appellees, Erasmus Wynne and others, who are his brothers and sisters, against the appellant, Thomas J. Anderson, their former guardian, and Sarah E. Kimbrough, as the administratrix of a deceased surety on his bond. The facts may be thus stated : Anderson was appointed guardian of appellees in 1863, and gave bond, with the intestate of his co-appellant, Sarah E. Kimbrough, as his surety.

Heard before Hon. A. ~W. Dillard. This was a bill filed on the 26th of December, 1878, by the appellees, John Greenlees and his sister, against the appellant, Hugh Greenlees, as the administrator of their deceased mother, Isabella Greenlees, who had died in Sumter county in 1859, and upon whose estate the appellant was appointed administrator on the 11th day of January, 1859.

Tried before Hon. James E. Cobb. Tbe appellant, L. L. Buckalew, was indicted for “ setting up or being concerned in. setting up or carrying on a lottery.” Tbe State introduced a witness, who testified that within twelve months before the finding of tbe indictment, in this cause, and in Chambers county, Alabama, “ the defendant had a mill, and in the mill house, on the head of a flour barrel, he bad wbat the witness called a board, on which was marked, in a circle, figures…

Tried before Hon. Lutheb B. Smith. This was an action of detinue, commenced by the appellant, John Shepherd, against the appellee, S. M. Story, for the recovery of certain personal property. The defendant failing to give bond, the appellant executed the statutory bond, and obtained possession of the property seized.

Tried before Hon. James O. Cobb. This was an action of trover, brought by the appellee, C. C. Hodges, against the appellant, John E. Scott, for the conversion of a mule.

Tried before Hon. Louis Wyeth. The appellant, William H. Wright, brought this action, on the 17th day of November, 1874, against the appellee, Benjamin E. Paine, as the administrator de bonis non of the estate of William O. Winston, deceased, and sought to recover on the following receipts, to-wit : “Deposited with me, for safe keeping, by William H. Wright, eight hundred and five dollars ($805) in gold, which I am to return whenever called for, this 4th day of November,…

Heard before Hon. N. S. Graham. This was a bill filed by the appellant, James F. Waddell, as the administrator of Ann Campbell, against the appellee, E. F. Lanier and Mary E. Hopkins, as the sole heir-at-law of said Ann. The bill seeks a cancellation of a certain deed of gift made by Ann Campbell in her lifetime to the appellee, Lanier, and for an account of the property which bad come to his hands by virtue of said deed.

Tried before Hon. N. S. Gíraham. The bill in this case was filed by the appellant, Thomas H. Causler, against the appellee, W. C. Wharton, who is the administrator, and against the heirs of O. P. Hil'l, deceased. Its object is to have the affairs of a partnership, which had formerly existed between the appellant and Hill, settled and determined.

Tried before Hon. James E. Cobb. . This was a real action under the Code, commenced by the appellee, S. L. Mullin, against the appellant, America A. Betz. The complaint contains an accurate description of the lands sued for, and avers that the defendant entered thereupon and unlawfully withholds and detains the same.

Tried before Hon. James E. Cobb. .Tbis was an action on the case brought by the appellee, I). N. Gibson, against the appellant, The Eagle & Phoenix •Manufacturing Company, to recover damages for injury done to lands of the plaintiff, by the diversion of the waters of the Chattahoochee river from its natural course, caused by the erection of a dam across said river by the defendant.

Heard before Hon. Charles Turner. The opinion states the facts. 1. The only error which can be noticed by this court, is the one as to the decree rendered on the 17th November, 1874. The decree of the 20th May, 1874, is barred by the statute, mote than two years having elapsed before the appeal was taken.

This was a motion for a mandamus, or other remedial writ, to compel the Hon. John Henderson, Judge of the 10th Judicial District, to strike from the files of the Circuit Court of Talladega county, a certain bill of exceptions filed in said court, in the case of E. B. Nelson and S. C. Kelly against A. J. Street, which said bill was signed by William L. Whitlock as the judge presiding at the trial of the case, which occurred at the Spring term, 1879, of the Circuit Court of…

Tried before Hon. William L. Whitlock. The appellant, William H. Spigener, was tried and convicted on an indictment which charged that he “ did sell or give spirituous, vinous or malt liquors to William Pond, a minor, against the peace and dignity of the State of Alabama.” When the ease was called for trial, and before pleading to the indictment, defendant moved to quash the indictment or strike it from the files, “ because the same was not voted or preferred as a true bill…

Tried before Hon. William S. Mudd. Appellee, Washington Moody, brought said suit against tbe appellant, The Board of Trustees of tbe University of Alabama, as the assignee of a certain claim alleged to be due tbe Tuscaloosa Insurance Company for services rendered as fiscal agent of tbe old body corporate, known as “Tbe University of Alabama,” in receiving and disbursing certain moneys belonging to said University.

Tried before Hon. W. L. Whitlock. Tbe appellee, Hiram Little, having obtained a judgment against one Eossean, sued out a garnishment against tbe appellant, Byland Bandolph, on the 2d day of June, 1875. Tbe affidavit filed to secure the writ, is in tbe usual form, and alleged tbe recovery of judgment against Eossean and another, at tbe fall term, lb7‘2, of tbe Circuit Court of Etowab county, and a supposed indebtedness to Eosseau by tbe appellant.

Heard before Hon. Charles Turner. On the 21st day of December, 1872, the appellee, Josiah T. Evans, as administrator with the will annexed, of Mary Bryan, sold at.public auction, a certain piece of land belonging to said estate.

Heard before Hon. A. W. Dillard. In February, 1869, one Joseph J. L. DuBrutz was appointed tax collector of Choctaw, and gave bond as such, with the appellees as his sureties thereon. At the time of his appointment, DuBrutz owned certain real estate, which is described in the bill. .In November, 1870, DuBrutz sold and conveyed these lands to the appellants, who purchased with knowledge that he was tax collector, and have since been in possession.

Heard before Hon. Charles Turner. This was a bill filed by the appellant, the Elyton Land Company, against the appellee, Thomas B. Ayres, as tax collector of jefferson county, and seeks to enjoin him from selling the property of the company, to pay certain taxes which it is alleged are illegal. Prom the pleadings and proof it appears that the appellant, a domestic corporation, located at Birmingham, owned during the year 1874 real property subject to taxation.

<p>Appeal from Macon Circuit Court.</p> <p>Tried before Hon. James E. Cobb.</p> <p>This was an action of unlawful detainer, brought by the appellee, J. T. Harris, against the appellant, W. A. Beynolds, before a justice of the peace. Appellant moved before the justice to dismiss the proceedings, on the ground that there were no papers in the cause. Thereupon the plaintiff handed the justice a copy of a summons which had been served on the defendant by the plaintiff, acting as special constable, and asked the presiding magistrate to sign the same, which was done against the objections of defendant. It was admitted that the summons handed the defendant was the only paper issued. The justice overruled the motion, and the defendant excepted. The defendant then moved to quash the summons, which had been written out on the day of trial, because it was not any original summons or any substitute for a lost summons, but merely a copy of the paper served on the defendant. The court overruled this motion, and the defendant excepted. The defendant then moved to quash and set aside the service óf the summons, because Harris, who was appointed special constable, and who executed the summons, was the party plaintiff. The justice overruled this motion, and the defendant excepted. The defendants then moved to quash the summons and proceedings on the ground that its issue was without any other than amere verbal complaint made to the magistrate by the plaintiff. It was admitted that only a verbal complaint was made to the magistrate. The justice overruled the motion, and the defendant excepted. After these motions had been made and overruled, the plaintiff offered to file a written complaint. The defendant objected to the filing, or bringing into the cause any written complaint at the time it was offered, but the justice allowed the plaintiff to then file a written complaint, and defendant excepted.</p> <p>The defendant then refused to go into the trial or to plead to the merits, and the justice thereupon rendered judgment against him.</p> <p>On appeal to the Circuit Court the bill of exceptions recites, that “ by agreement of counsel said motions were renewed in the Circuit Court, as if the same had been formally written out and presented ; the facts and grounds on which they are based were admitted by the plaintiff to exist.” The CircuitJCourt ruled that “the facts on which the motions were based did not authorize it to quash them, and the court therefore overruled said motions,” to which ruling the defendant excepted. There was a jury and verdict for the plaintiff, and the defendant brings the case here by appeal, assigning the refusal to grant his several motions as error.</p>

This was an application by the petitioner, Sam Simmons, for Ms discharge on habeas corpus.

Tried before Hon. Henry D. Clayton. The appellee, James Olive, brought this action against the appellant, Harmon Adams, and the sureties on a bond given by him to secure an injunction in a cause then pending between them in the Chancery Court of Henry county. On the trial, he offered in evidence a certified copy of the decree of the Chancellor dissolving the injunction, which had been granted on the execution of the bond.

<p>Appeal from Bike Chancery Court.</p> <p>Heard before Hon. H. Austill.</p> <p>The opinion states the facts.</p>

Heard before Hon. Chas. Turner. The bill in this case was filed by the appellant, William P. Molton, by next friend, against the appellee, Green C. Henderson, and seeks to have certain lands, then in the possession of Henderson, declared subject to the trusts created by the will of Thomas Molton, the father of complainant, for his benefit.

Tried before Hon. John Henderson. The appellant, Green Durrett, was indicted for the larceny of a horse belonging to one James Hardy.

Heard before Hon. N. S. Graham. This was a bill filed by the appellees, Preer, Illges & Co., against the appellants, Bobert A. Eorsyth and wife, and seeks a foreclosure of a certain mortgage on their homestead.

Tried before Hon. Henry D. Clayton. This was an action of trespass, commenced by the appellee, Amaranth L. Gayle, against the appellants, James Q. Smith and Thomas W. Armstrong, for a trespass upon and an ouster of appellee from certain lands in Lowndes county, Alabama. The complaint originally claimed damages for rents and profits of the lands mentioned, but was amended by striking therefrom all claim for such rents and profits.

Heard before Hon. N. S. Graham. The bill in this cause was filed by the appellant, John W. Mitchell, as the administrator de bonis non, cum testamento annexo of the estate of J ames S. Mitchell, deceased,' against Samuel Spence, former administrator, with the will annexed, of said estate, and against William C. Darden, as the person in possession of certain lands which had formerly belonged to said estate.

Tried before Hon. Henry D. Clayton. Tbe appellant, W. M. Russell, sued out an attachment against Burrell Bottoms, tbe intestate of tbe appellee, Thomas J. Gregory, on the 18th day of November, 1865.

Heard before Hon. N. S. Graham. The appellant, William H. Johnson, filed this bill against the appellees, J. O. Parkinson, Edward Parkinson, E. M. Barnes, S. P. Adams, C. M. Worthington,' and William Neighbors. From the bill it appears that the appellant and Edward Parkinson bought of J. O. Parkinson a mill, on the 1st day of April, 1872, and went into possession.

William L. Whitlock. These were real actions brought in the name of the State for the use of the public schools in township 23, range 20, to recover certain lands in township 24, range 20, in Coosa county, Alabama.

Sumter Circuit Court* Tried before Hon. Lütheb B. Smith. The opinion states tbe facts. The act of Congress of 1863, called the “ national currency act,” Was silent as to taxation by the State. — U. S. Stat. at Large, 1863, p. 665. But the act of Congress of 1864 put it beyond question that these banking associations were liable to taxation by the State, subject to the two restrictions therein named. — U. S. Stat. at Large, p. 112.

This was an application by the petitioner, S. T. Moore, for a writ of habeas corpus and certiorari to effect his discharge from alleged illegal imprisonment, and to revise an order of Hon. John Henderson, made upon application for habeas corpus before him, refusing the writ.

Tried before Hon. James E. Cobb. ■ The appellants, R. G. Sandlin and Martha A. Temple, as the administrators of Henry A. Temple, brought their statutory real action against the appellees, Solomon Robbins, Sr., Charles O. and Kate Grayson, to recover certain lands in Coosa county, Alabama.

Heard before Hon. N. S. Graham. The appellee, A. Proskauer, filed this bill against the appellant, Rebecca L. Barnett and others, and sought thereby to have corrected an alleged mistake in the description of certain land, which he claims under a writing purporting to be a deed from the appellant, Rebecca L., and also in certain other deeds from parties under whom said Rebecca claims title, and also to remove the cloud from the title to said lands caused by certain mortgages…

<p> Heal Action under Oode. </p> <p>1. Power of sale ; what execution of, invalid. —Where a power of sale, contained in a trust deed, requires notice to be given of the time and place Of sale, such notice is a pre-requisite to the execution of the power, and a failure to give it renders the sale invalid.</p> <p>2. Same; regularity of proceedings under, who must show. — It is incumbent on one claiming under the execution of a power of sale contained in a trust deed, to show that all pre-requisites to a sale under such power were complied with; and the recitals of a deed made by the person clothed with the power, is not evidence of such compliance as against one not a party or privy to tho deed.</p> <p>3. Trust deed; as to whom void. — 'W. &B., on the 11th day of May, 1866, executed to H., as trustee, a deed of trust conveying certain lands to secure a debt partly for advances and partly created cotemporaneously with the execution of the mortgage. This deed was not recorded until the 7th of February, 1870. Under this deed the trustee sold the land to plaintiff in May, 1870, and made him a deed in December, 1870. At the spring term, 1867, F. recovered a judgment against W. as principal and T. as surety. On the 14th November, 1867, T. paid the judgment, which was assigned to him. Execution on this judgment on the 18th of April, 1870, was levied on the lands in question, which were sold under it, on the 4th day of July, 1870, on -which day the sheriff made a deed to W. as purchaser, who conveyed to defendant. Held — 1. That the title of defendant W. was superior to that of plaintiff.</p>

Tried before Hon. William S. Mudd. Tbe appellees, Thompson & Garner, brought this action against the appellant, the South & North Alabama Railroad Company, to recover damages for the killing of sixteen head of stock. The complainant avers that the killing was the result of the negligence or want of skill of defendant’s employes in the management or running of the train.

Tried before Hon. Ltjther R. Smith. Tbe appellee, A. Tannenbaum, brought this action against the appellants, I. James Lee and Susan L. Lee, and sought to subject certain lands, the statutory separate estate of Mrs. Lee, to the payment of an account due to him.

This was an appeal from a decree on final settlement of the estate of Edward Sims, by the appellee, Frank S. Moody, administrator de bonis non. The principal question involved was the rightfulness of a payment made in the year 1874 by the administrator de bonis non, of a legacy given by Sims’ will to one Beady. The provisions of the will are fully stated in the opinion. Testator died in the year 1840, and his will was duly probated in the same year.

Heard before Hon. N. S. Graham. The bill in this cause was filed by the appellants, Cubbedge, Hazlehurst & Co., against the appellee, George C. Napier, to foreclose a mortgage given by him to them on cerr tain lands situated in Macon county, Alabama. The answer of the appellee admitted the execution of the mortgage sought to be foreclosed, and claimed a deduction on account of usurious interest and some payments which had not been credited.

Heard before Hon. H. C. Speake. The bill in this case was filed by W. H. Bobertson, against the appellants, Hettie B. Logwood and John E. Logwood, her husband, and seeks to subject certain lands in the possession of said Hettie B. to a vendor’s lien for an unpaid balance of the purchase-money. Bobertson having died pending the suit, his administrator was made party plaintiff in his stead.

Heard before Hon. N. S. Graham: The original bill in this cause was filed by the appellant, Ann E. Kieser, against tbe appellee, M. A. Baldwin, and her husband, B. H. Kieser, and seeks to enjoin Baldwin from selling or taking possession of certain property under and by virtue of a mortgage executed by ber and her husband to Job Trippe, treasurer of the Boston and Eairhaven Iron Works, and by him transferred to Baldwin, or by virtue of a bill of sale to Baldwin of tbe same…

Tried before Hon. George H. Craig. This was an action brought by the appellee, The City National Bank of Selma, against the appellant, Si W. John, to recover the amount of a… Held: that if a party absent himself during business hours, without leaving some one to attend to his interest, the holder will be excused from giving notice. See, also, 1 Pick. Bep. 413. It was for the jury to say what were business hours, and the charges given íeft this question fairly to them.

Tried before Hon. Lewis Wyeth. The appellee, Robinson, commenced tbis action by attachment against the appellants, Moore & Co., to recover of them the sum of $1,500, proceeds of seventeen bales of cotton, the property of plaintiff, which defendants sold as the property of one Carter, applying the proceeds to the satisfaction of a debt Carter owed them.

Heard before Hon. Adam C. Felder. The appellee, Harriet P. Stallworth, filed this bill against the appellants, Foster, Neville & Co., and the heirs of one W. W. Greene, and sought to foreclose a mortgage on certain lands, executed by said Greene and wife, and also to enforce a vendors lien oñ said lands for a balance of unpaid purchase money.

Heard before Hon. H. Austill. The original bill in this cause was filed by the appellant, the Alabama Warehouse Company, and John W. Durr, A. R. Baker and others, its stockholders, against the appellees, U. L. Jones and John R. Lawson.

Heard before Hon. N. S. Graham. Bill for foreclosure of trust deed by the appellees, who describe themselves as follows : Tour orators, Bobert A. Lancaster'and John F. Tanner, as trustees for 'divers parties holding and owning certain bonds and past due coupons thereof, of the Savannah and Memphis Eailroad Company, under and by virtue of a deed of trust executed and delivered to them by said railroad company for the trusts and purposes therein mentioned; and Abby Harrington,…

Heard before Hon. N. S. Graham. The appellant, the Alabama Gold Life Insurance Company, filed this bill, and sought to foreclose a mortgage on certain real estate in the city of Opelika. The bill averred that the appellees, Sarah J. Sledge, Jas. C. Sledge and Jas. J. Smith, had executed to Swift, Murphy & Co. a mortgage on the same property embraced in the mortgage given the complainant, by the above named parties, and Mittie A. Sledge and Lizzie Smith.

Heard before R. F. Ligón, Esq., as special Chancellor. The bill in this case was filed by appellants, Shulman, Goetter & Weil, against the appellee, Joseph Fitzpatrick, and the administrator and heirs of his deceased wife Mary, F. Fitzpatrick, and sought to foreclose a mortgage on certain lands in Macon county, Alabama, made to the appellants by the said Joseph and Mary F. Fitzpatrick, on the 29th day of January, 1872.

This was an application by the appellee, Smith, to compel tbe appellant, Sarah Phillips, as executrix of James D. Phillips, deceased, to give bond and security as such executrix, the will of tbe testator having exempted her from giving any bond. Petitioner alleged that he was a creditor, and that his interests were endangered for want of such bond.

Heard before Hon. H. Austill. The bill in the present case was filed by the appellant, Mrs. Elizabeth Patton, wife of J. O. Patton, against Edwin Beecher and'W.L. Chambers. It alleged that she was, prior to the 30th of October, 1869, seized in fee of a certain lot in the city of Montgomery, which was her statutory estate.

Tried before Hon. John Henderson. This was a proceeding under the statute, commenced by the appellee, Phillip G. Stringer, as treasurer of Talladega county, to compel tbe appellant, George W. Chambers, bis predecessor in office, to deliver to him the books and papers belonging to snob office.

W, B. Wood, The appellant, ’Squire Myers, was indicted for the murder of one George Boykin.